Judge Cannon hearing might finally give Jack Smith chance to demand recusal: Ex-prosecutor

Special counsel Jack Smith might finally be given an opening to complain about Judge Aileen Cannon's conduct to the appellate division, depending on how she handles the gag order motion against former President Donald Trump, former federal prosecutor Harry Litman told CNN's Brianna Keilar.

This comes as Cannon, a Trump appointee who has become a lightning rod for controversy over the perception of bias in how she's handled the Mar-a-Lago classified documents case, is separately hearing a motion by Trump to try to get Smith removed or defunded from the case entirely.

The gag order discussion was scheduled to follow on Monday.

"Prosecutors in this gag order hearing are pointing to Trump's false claims that he was at grave risk from federal agents searching Mar-a-Lago two years ago," said Keilar. "That's something that really animated his base. But they're saying that this could lead to threats and harassment against those in law enforcement who were involved. Judges in other cases, they've said the gag orders make sense for this defendant. So why is this a question here?"

"Well, first, as you say, Trump's statements were 'barely escaped death' and he wasn't even in Mar-a-Lago at the time, and basically that Joe Biden was coming for him," said Litman.

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Essentially, he continued, "Nothing" is different in this case than any of the other cases where judges approved gag orders against the former president: "What they've asked for is what's been approved again and again, that is any statements that Trump makes that could have specific, imminent, and foreseeable harm to an agent involved in the case. That language is not an accident, it's been approved repeatedly."

"There's an interesting dynamic here, because we've been watching for months to see whether Judge Cannon might make a ruling that would expose her to oversight on the 11th Circuit and maybe even a recusal," Litman added.

"Because the special counsel is saying this is exigent and can already point to two attacks, verbal attacks on FBI agents, if she doesn't rule, as has been her wont, it's possible that this motion gives Jack Smith an opportunity to say, I want to appeal her because she hasn't ruled. I want to go to the 11th Circuit and say she's got to do something here, and that would give the occasion that he hasn't had yet to try to recuse her."

Watch the video below or at the link here.

Harry Litman outlines how Jack Smith could challenge Aileen Cannon to a higher court www.youtube.com