Former federal prosecutor Randall Eliason contended on Saturday that the Department of Justice (DOJ) should have a four-step approach if Judge Aileen Cannon rules in favor of Donald Trump‘s motion to challenge the legality of special counsel Jack Smith‘s appointment to his classified documents case.
The former president was indicted last June by Smith on 40 federal charges, alleging that he illegally retained classified documents after leaving the White House in 2021 and obstructed the government’s efforts to retrieve them. Trump’s indictment came after the FBI raided his Mar-a-Lago estate in Palm Beach, Florida, in August 2022. The former president has pleaded not guilty and has said the case is politically motivated.
Trump’s legal team has argued that U.S. Attorney General Merrick Garland‘s appointment of Smith to prosecute the Mar-a-Lago case is invalid because Garland lacks the legal authority to appoint a special counsel who hasn’t been approved by the Senate. Smith’s team rebuked the argument, calling it “unsound.” On Friday, the court began a hearing into Trump’s motion.
Eliason posted on X, formerly Twitter, on Saturday that the DOJ should consider the following four steps if Cannon rules in Trump’s favor.
“If Judge Cannon dismisses the indictment because she finds Smith was unlawfully appointed, here’s what DOJ should do: 1) Don’t appeal; 2) Have US Atty in FL refile the same charges in a new case – it would be very easy and fast; 3) case gets reassigned – hopefully to a new judge; 4) Smith’s prosecution team are designated as Special AUSA’s in FL to continue prosecuting the case,” Eliason, now a white-collar crime professor at George Washington Law, a columnist and blogger, wrote.
There have been calls for Smith to ask the U.S. Court of Appeals for the 11th Circuit to remove Cannon from Trump’s case, which Smith has yet to act on.
Eliason, a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia, also wrote on X on Saturday: “I can’t see any reason this wouldn’t work – it’s faster than an appeal and gives them a chance of drawing a new judge without having to argue for removing Cannon.”
Newsweek has emailed the DOJ and Trump’s legal team for comment on Saturday afternoon.
Cannon, who was appointed by Trump in 2020, has faced criticism, largely along partisan lines, for delaying the trial and not setting a start date. The indefinitely postponed trial hangs in the air amid a tight upcoming November election, with Trump again facing off against President Joe Biden. The first presidential debate of this election cycle is scheduled for June 27.
On Friday, Cannon heard hours of arguments Friday from lawyers for both sides. According to the Associated Press, Trump attorney Emil Bove argued that the DOJ risked creating a “shadow government” by appointing special counsels to prosecute select criminal cases.
Prosecutors said there was nothing improper or unusual about Smith’s appointment, the AP reported. James Pearce, a member of Smith’s team, said during the hearing, “We are in compliance. We have complied with all of the department’s policies.”
The hearing continues Monday. Trump’s lawyers and the DOJ will also discuss a limited gag order prosecutors have requested that would bar Trump from comments they fear could endanger FBI agents and law enforcement officials involved in the classified documents case.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
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