Norman Eisen, E. Danya Perry and Joshua Kolb write:

On Tuesday, special counsel Jack Smith threw down the gauntlet in an extraordinary filing in the Mar-a-Lago prosecution, the case that centers around former President Donald Trump’s retention of classified documents and his resistance to government attempts to recover them from his Mar-a-Lago estate.

Smith warned Judge Aileen Cannon that her approach to the law governing the handling of presidential records — and so Donald Trump’s culpability in the case — was “fundamentally flawed” and threatened to seek rare pretrial review by the 11th US Circuit of Appeals. (Trump denies all wrongdoing.)

Cannon is headed for the most trouble she has faced since that 11th Circuit reversed her twice in her original meddling in the government’s pre-indictment investigation. If she does not course-correct, she’s headed for another shellacking by the circuit – and possible removal from the case.

As a threshold matter we should be clear that there are alternative explanations for her pattern of decisions favoring Trump at the expense of the law.

Some analysts believe she is acting out of bias for a president who appointed her. But she had a good reputation before this case and we cannot rule out other explanations for her bending over backwards (and bending the law) to appear fair to Trump.

But whatever the explanation, the fresh threat from Smith came after she got herself into a tangle when she ordered the parties to propose two versions of instructions for a jury on how to apply the Presidential Records Act (PRA) when the case goes to trial. That statute outlines the parameters between a president’s official and personal records, and sets up processes for how official documents are preserved. [Continue reading…]