Jack Smith has waived the opportunity to demand Aileen Cannon's recusal: former prosecutor

According to a former prosecutor and district attorney, special counsel Jack Smith has “waived” the right to request that Florida Judge Aileen Cannon be recused from the case involving Donald Trump's secret documents in a recently filed court filing.

Joyce Vance, the former U.S. Attorney for the Northern District of Alabama, made this claim on the “CAFE Insider” podcast, which she co-hosts with Preet Bharara, another former U.S. attorney.

Trump was charged with 40 federal charges for illegally retaining classified documents after leaving the presidency in January 2021 and then obstructing efforts by appropriate federal agencies to recover them. This led to the FBI raiding Trump's private club at Mar-a-Lago in August 2022 to retrieve the documents. The former president pleaded not guilty to all counts.

In July 2024, Cannon announced that she would dismiss the case upon completion that Smith's appointment as special counsel, in which capacity he had overseen the case, was unconstitutional because it had not been approved by the Senate. On August 26, Smith appealed that decision to the 11th Circuit Court of Appeals. He claimed Cannon's decision was “contrary to widespread and long-standing appointment practices” at the Justice Department.

Regarding Smith's appeal, Bharara said, “What is missing from the complaint is a request to assign the case to a judge other than Aileen Cannon, and many people have speculated that they would request that.”

Vance added: “In the 11th Circuit, if you don't make an argument in your opening statement, you have waived it. So Jack Smith will not be able to make the argument in his response or in his oral argument.”

Newsweek Smith asked Donald Trump's legal team for comment via an online contact form at the Justice Department's press office and via email.

Former federal prosecutor and current legal commentator David Lat predicted in a blog post that the 11th Circuit Court of Appeals would “overturn” Cannon’s decision to dismiss the lawsuit.

However, he expressed uncertainty about what would happen if the case landed before the Supreme Court, which recently ruled that Presidents enjoy immunity for their official acts.

“I stand by my previous prediction that the Eleventh Circuit will overturn Judge Cannon's ruling,” Lat said.

“But I remain uncertain how the Supreme Court would rule if it decided to hear the case, given the strong views some conservative justices have on separation of powers and executive authority – which, of course, is reflected in their ruling in Trump v. United States (also known as the immunity case).”

In May, Trump was found guilty on 34 counts of falsifying business records. Prosecutors said he did this to cover up the payment of hush money to former porn star Stormy Daniels before the 2016 presidential election. Trump called the verdict “rigged” and is currently awaiting sentencing.

Trump has also been charged with breaking the law while attempting to overturn Joe Biden's victory in the 2020 presidential election in two cases – one federal and one specifically in Georgia. He has pleaded not guilty to all counts and denies any wrongdoing.