In an April 2 legal filing, special counsel Jack Smith blasted Trump-appointed Judge Aileen Cannon for legitimizing disgraced former President Donald Trump’s argument that, under the Presidential Records Act, the former president could declassify sensitive government documents, even when he was no longer in office. After Smith’s blistering criticism of Cannon and what he called Trump’s “fundamentally flawed legal premise,” right-wing media launched a series of personal attacks against the special counsel.
Molly Butler / Media Matters
Research/Study
Right-wing media attacked special counsel Jack Smith for legal criticism of the Trump classified-documents judge
Right-wing media are defending the judge, who seems to have supported an absurd legal theory, and accusing Smith of throwing a “temper tantrum”
Written by Audrey McCabe
Research contributions from Ethan Collier, Alicia Sadowski & Isabella Corrao
Published
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Background
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- In June 2023, federal prosecutors indicted Trump on 37 felony counts for allegedly mishandling — and refusing to return — classified government documents. Trump’s case was assigned to Judge Aileen Cannon, whom he appointed to the federal bench in 2020. In an earlier episode of Trump’s document debacle, Cannon made what The Associated Press described as “an extraordinary and unusually broad decision” to appoint a “special master” to review the documents seized by the FBI from Trump’s residence at Mar-a-Lago. “Trump’s supporters had cheered her [Cannon’s] ruling as a check on what they viewed as a politically motivated probe,” the publication wrote. Special counsel Jack Smith has overseen the case since Attorney General Merrick Garland appointed him in November 2022. [The Associated Press, 6/9/23; Reuters, 9/3/23]
- Trump’s attorneys are arguing that the former president had the right to retain classified documents under the Presidential Records Act, which allows presidents to retain personal records like diaries or journals. Legal experts disagree. According to David Alan Slansky, a professor of criminal law at Stanford, the PRA should not apply in this case because “neither the Presidential Records Act nor any other federal statute allows a former president to continue to hold onto documents with sensitive information relating to the national defense.” [The National Archives, 6/9/23; FactCheck.org, 6/13/23]
- On March 18, Cannon seemingly legitimized Trump’s bizarre defense, asking both the Trump team and the special counsel’s office to prepare jury instructions by April 2 that included competing interpretations of the Presidential Records Act. PBS wrote that the request “appeared to accept the Republican ex-president’s argument that he was entitled under a statute known as the Presidential Records Act to retain the sensitive documents he is now charged with possessing.” In an MSNBC blog, former prosecutor Jordan Rubin explained that presenting Trump’s interpretation of the PRA to the jury “could lead the jury to think that Trump could do whatever he wanted with classified documents, which would obviously go against the criminal law that says otherwise.” [PBS, 4/3/24; MSNBC, 4/3/24; Newsweek, 3/28/24]
- In an April 2 filing, special counsel Jack Smith rebuked Cannon’s seeming acceptance of Trump’s PRA defense. He wrote: “Trump’s entire effort to rely on the PRA is not based on any facts. It is a post hoc justification that was concocted more than a year after he left the White House.” He also stated that Trump’s “invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged in the Superseding Indictment.” [U.S. District Court, Southern District of Florida, Government’s Response To Order Requiring Preliminary Proposed Jury Instructions And Verdict Forms On Counts 1-32, 4/2/24]
- Former federal Judge Nancy Gertner told The Washington Post that Cannon “is giving credence to arguments that are on their face absurd.” Former U.S. attorney and law professor Barbara McQuade similarly stated, “The PRA is just not relevant here in any way it all; it provides no defense. To even allow it to be argued at trial would create confusion for the jury.” [The Washington Post, 3/20/24]
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Right-wing media launched personal attacks against special counsel Jack Smith
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- One America News host Dan Ball argued that special counsel “Jackass” Smith is a “radical” whose aim is to “scare” voters into not voting for Trump. “Radical special counsel Jack Smith, throwing a fit over Judge Aileen Cannon's decision related to final jury instructions. He's desperately trying to twist the truth arguing that the basis for Trump's ‘unauthorized possession’ — as he calls it — of national defense material rests on an executive order issued by Obama, not the Presidential Records Act. Again, the case doesn’t hold water.” Ball said. “That’s why Jackass Smith knows he has no case. This is all for show, folks, to scare you the voters that ‘You might be voting for a criminal. How dare you?’ Lies.” [One America News, Real America with Dan Ball, 4/3/24]
- Fox News contributor Leo Terrell claimed that “Jack Smith is having a temper tantrum.” “Jack Smith is obsessed with going to trial before the election,” Terrell said. “He wants a federal conviction – that’s why he was brought in on this case.” Host Harris Faulkner responded to Terrell’s “temper tantrum” characterization by saying, “We'll hand him a snack and a nap.” [Fox News, The Faulkner Focus, 4/4/24]
- The Daily Wire’s Ben Shapiro claimed on his show that Smith is “spending his days attacking the judge in the classified documents case.” He also described Smith as being “at war” with Cannon. [The Daily Wire, The Ben Shapiro Show, 4/4/24]
- On X, Fox News host Mark Levin called Smith a “rogue thug.” He also said that “Judge Cannon should not allow Smith’s temper tantrums, abuse of office, and intimidation efforts to influence her decisions.” [Twitter/X, 4/4/24]
- Right-wing podcast host Julie Kelly described Smith’s filing rebuking Cannon’s order as “petulant.” “Thinking more about Jack Smith’s petulant filing over Judge Cannon’s jury instructions,” Kelly wrote on X. “Regardless of Smith’s demands and threats, she holds the cards. And one defense motion that could blow open Biden WH collusion with DOJ to bring the case.” [Twitter/X, 4/4/24]
- Fox News contributor Joe Concha chided Smith in an X post. “Jack Smith appears to be having another stellar day," he wrote. “If this unhinged anger continues, he might just end up with a weekend show on MSNBC in 2025.” [Twitter/X, 4/3/24]
- On X, Breitbart linked to an article titled “Special Counsel Jack Smith Attacks Judge in Trump Documents Case,” with the caption “Sumwun gwumpy.” The article linked in the post suggested that Smith’s “attack” on the “Trump-appointed” Cannon mirrored Trump’s brazen attacks on judges — and their families — overseeing his other trials. “Smith’s attack on the Trump-appointed Cannon comes as Trump’s critics have slammed him for attacking Justice Arthur Engoron and Judge Juan Merchan in two other cases against him.” [Twitter/X, 4/3/24; Breitbart, 4/3/24]
- In an X post, Students for Trump founder Ryan Fournier referred to the special counsel as “Jack ‘dickhead’ Smith.” His full post read: “BREAKING: Jack Smith is attempting to remove Aileen Cannon from the Trump documents case. Absolutely not. If this happens, it will prove that these scumbags have an agenda. Bring it Jack ‘dickhead’ Smith.” [Twitter/X, 4/6/24]
- Fox News host Gregg Jarrett claimed that “Jack Smith is notorious for thuggish tactics, he has railroaded defendants, only to be chastised in reverse, and now he's pulling the same shameful intimidation tactics with Judge Cannon.” “He demanded that she accept his version of proposed jury instructions excluding Trump’s main defense, the Presidential Records Act,” Jarrett continued. “And he went so far as to threaten to have her kicked off the case if she didn't capitulate. Correctly, she told him to stuff it.” [Fox Business, Kudlow, 4/5/24]
- Writer and law professor Thane Rosenbaum claimed on Newsmax that Smith “hyperventilated” and “threatened to go above her [Cannon’s] head to appellate court.” He also argued that “Jack Smith is all along saying ‘I want the Presidential Records Act off the table. I want it done because without that, I have a good case against Donald Trump on the Espionage Act.’ With it, it cancels it out. So this is why he wanted it done.” [Newsmax, Sunday Report, 4/7/24]