On Wednesday, September 4, 2024, Newsweek reported that former federal prosecutor Joyce Vance claimed Special Counsel Jack Smith may have waived the ability to request the recusal of Judge Aileen Cannon from the classified documents case involving Donald Trump.
Vance, a former U.S. Attorney for the Northern District of Alabama, made the assertion during her CAFE Insider podcast co-hosted with Preet Bharara, another former U.S. Attorney. Smith was recently appointed as special counsel by the Department of Justice to oversee investigations into Trump’s retention of classified material at Mar-a-Lago and efforts to overturn the 2020 election.
Judge Cannon had dismissed the classified documents case in July, ruling that Smith’s appointment as special counsel was unconstitutional because it had not received Senate approval. However, Smith appealed this decision to the 11th Circuit Court, arguing Cannon’s ruling contradicted longstanding DOJ practices.
In discussing Smith’s appeal, Bharara noted the brief did not include a request for Cannon’s recusal from the case, which many had speculated could occur. Vance affirmed that according to 11th Circuit rules, any argument not made in an opening appellate brief is considered waived, meaning Smith can no longer demand Cannon step aside in his reply brief or oral arguments.
Newsweek reported reaching out to Smith through the DOJ and Trump’s legal team for comment on Vance’s assessment but did not receive a response. Legal expert David Lat wrote on a blog post he predicted the 11th Circuit would overturn Cannon’s dismissal, as her decision seemed at odds with established precedent.
However, Lat said he remained uncertain how the Supreme Court might rule if it takes up the case, alluding to some conservative justices’ strong support for executive authority and separation of powers. This was referenced in a recent high court ruling that sitting presidents have immunity for official actions.
The classified documents case is just one of multiple ongoing legal battles involving Trump. He was found guilty in May of felony counts related to falsifying records about hush payments to Stormy Daniels and currently awaits sentencing. Trump also faces charges for allegedly trying to reverse his 2020 election loss in Georgia and at the federal level, pleading not guilty to all charges.
Source: Newsweek
