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Could Jack Smith Secretly be Happy with his Trial Judge?

If you were writing a screenplay about a president who steals classified documents as he leaves the White House, then refuses to return them, then gets indicted on multiple counts of espionage, you might think you have enough drama for one movie.

So you might think twice before writing in a judge who was appointed to the bench by that very president, and who had blatantly manipulated the law in his favor in the run-up to that very indictment. 

Your agent would surely make you drop that character as too far-fetched. But the random selection of Judge Aileen Cannon to the trial of Donald Trump is now part of the script. It's real, if not exactly believable.

This is the judge who, just last year, put her professional integrity on the line, intervening in the Mar-a-Lago investigation in ways that were so legally dubious — remember the special master? — that even her district's notoriously conservative appeals court had no choice but to overrule her. Not for her blatant partisanship, mind you, but for her arrogant yet deeply flawed interpretation of the law.

To those of us in the reality-based community, her selection last week was an oh-shit moment, one that made us wonder, not for the first time, if Trump will ever answer for his crimes.

Our fears are not unfounded. Cannon will indeed have the power to delay, throw up roadblocks, throw out evidence, influence juror selection, and generally behave like the Federalist Society robot she was programmed to be.

Then there's her much-discussed inexperience. She has presided over exactly four criminal trials — and simple ones at that — in her brief judicial career. She will be learning on the job.

None of these things, alas, are disqualifying, and unless she chooses to recuse herself — which she won't — the case is hers.

But while we are right to be concerned, I think we just might be overreacting.

Let's take a step back and look at the behavior of DOJ. Jack Smith did not need to bring this case in Florida. He could have kept it in D.C. He could've even brought it to New Jersey (and may yet, but that's another story).

But let's stipulate that this isn't Smith's first rodeo, and that when he opted for a Florida venue, he was fully aware that he had a twenty-percent chance of drawing Cannon as judge. It was, obviously, a chance he chose to take.

But let's go a step further and suppose that Cannon's selection was something Smith actually found desirable. That she might actually provide him with some helpful political cover going forward.

To be sure, there are gale-force political winds blowing through this trial, and while Smith can't acknowledge them, he can't pretend they're not there either. No matter how his team conducts itself, there will always be a swarm of Republican trolls attacking Smith over the supposed "weaponization" of DOJ.

Yes, it's all performative flimflam, but Smith and his team can't respond. They're barred from addressing any of it in public. They speak only through their legal filings, and they do not leak.

But throw Cannon into the mix, and the trolling gets much trickier. Now, Republicans won't be able to credibly claim that the trial is being rigged against Trump, when the optics say just the opposite. If anything, Cannon rigs it in his favor.

So I'm guessing Smith is okay rolling the dice with Cannon. He's not asking for her recusal. He knows that in the unlikely event he loses this case, he has at least three more cases he can bring that aren't in Florida. And he might be calculating that Cannon has a career that might need rescuing.

Smith knows she's not unqualified. He knows there was bipartisan approval of her appointment to the bench. He knows she was a respectable prosecutor. And he knows that her rookie error last year got her reprimanded in a highly public — and embarrassing — way.

It's also worth noting that we're not hearing many objections in the media from actual lawyers, some of whom are openly giving her the benefit of the doubt.

Think of the pressure she'll be under. She'll be presiding over the "trial of the century," with the entire world — not to mention history itself — hanging on her every word. Her rulings will be scrutinized by the best legal minds of this generation, not to mention by the same appellate court that smacked her down last year.

That's a lot for a newbie judge to take on this early in a career. She'll have to make choices that could brand her forever. Does she want to spend her whole career with a reputation as a corrupt partisan hack? Does she want to join the long line of suckers who committed career suicide for Trump?

Or does she learn from her mistakes? Does she now see that Trump-stink never washes off, and she already has some on her?

This will not be a case where Cannon can easily put her thumb on the scale. The evidence will be unusually compelling and virtually airtight. Trump's defense will be laughably feeble. And there won't be a lot of legal gray areas for her to interpret — or misinterpret.

Against that backdrop, she'd have to be truly nuts to play it any way but straight down the middle. If she's smart, she'll tune out the noise and conduct a fair trial — one that respects Trump's rights as a citizen, but not his whims as a mob boss.

Her only ruling, thus far, is fairly encouraging. She has given Trump's lawyers — such as they are — a tight deadline to get the security clearances they'll need to see evidence in the case. It was an early opportunity for her to delay things, which she chose not to seize.

As usual, I could be wrong. Aileen Cannon is bought and paid for by the Federalist Society. We have no way of knowing who might be whispering in her ear, or what leverage they might apply. She could be as corrupt as we've feared. She could make outrageous rulings that undermine the trial.

But it appears she's being boxed into acting like a real judge, even as her mere presence serves as a sharp rebuttal to any claims of anti-Trump partisanship.

So while she wouldn't be the first fool to sacrifice her career for Trump, I'm guessing she won't do that. Apparently, so is Jack Smith.


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