Jack Smith Trying to ‘Provoke’ Federal Judge, Alan Dershowitz Warns

Retired Harvard Law professor Alan Dershowitz weighed in on the issue.

(Left) Special Counsel Jack Smith delivers remarks in Washington on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in New York State Supreme Court in New York City on Dec. 7, 2023. Drew Angerer, David Dee Delgado/Getty Images

Retired Harvard Law professor Alan Dershowitz suggested that special prosecutor Jack Smith is “trying to rush” a trial against former President Donald Trump and trying to “provoke the judge” after the prosecutor filed court papers last week that were critical of the Florida judge in the classified documents case.

In a court filing earlier in April, Mr. Smith’s team was critical of Judge Aileen Cannon’s earlier order to provide written jury instructions based on the Presidential Records Act, saying that it doesn’t apply in this case. Later, she rejected President Trump’s attorneys’ attempt to have the case dismissed under the act, but she also rebuked Mr. Smith’s tone.

But Mr. Dershowitz, a former high-profile criminal defense lawyer, said in a recent interview that Mr. Smith is “terrified” of a “fair trial in Florida” because he’s “not going to have a fair trial in Washington D.C. [where] 95 percent of the voters hate Donald Trump, he knows there’s not going to be a fair trial in Georgia, [and] certainly not in New York.” He was referring to the three other criminal cases in which President Trump faces charges.

“This judge in a fair county in Florida might actually give Donald Trump his rights to a fair trial, so he’s doing everything to provoke the judge, possibly make a motion to recuse,” he told Fox News last week.

The recent filings by the Smith team might be an attempt to “provoke the judge” in Florida into issuing a rushed order that prosecutors can appeal, said Mr. Dershowitz, who has been largely critical of the indictments against President Trump.

“The Trump people are being accused of trying to delay the trial,” Mr. Dershowitz said. “That’s nonsense, it’s the prosecution that’s trying to rush the trial. Jack Smith said the people of the United States are entitled to a guilty verdict before they decide who to vote for. That’s ... actually an admission of election interference.”

It came after Mr. Smith’s team filed an unusually critical document in the case, saying that witnesses interviewed by prosecutors did not hear “Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA,” referring to the Presidential Records Act.

“To the contrary, every witness who was asked this question had never heard such a thing,” they added. President Trump has said on social media that he had the power, as president, to declassify documents to keep as his own personal property.

Regarding arguments made under the Presidential Records Act, the former president’s team has argued that the act allows him to designate classified materials as his own property, rendering the government’s charges against him as moot.

On April 4, Judge Cannon rejected the 45th president’s arguments that the act permits him to retain the records after he left the White House.

“The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case,” she wrote. “Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”

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A former federal prosecutor who writes for MSNBC, meanwhile, said that the latest Cannon order could be actually a win for President Trump.

He interpreted Judge Cannon’s ruling to say that she will wait until a jury is sworn in to provide instructions regarding whether the former president had the right to possess the classified documents under the Presidential Records Act. If that happens, he said Mr. Smith will not be able to appeal her ruling.

Attorney Alan Dershowitz, then member of President Donald Trump's legal team, speaks to the press in the Senate Reception Room during the Senate impeachment trial at the Capitol in Washington on Jan. 29, 2020. Mario Tama/Getty Images

Judge Cannon’s jury instruction regarding “how the Presidential Records Act means the jury must find Donald Trump not guilty. And guess what, Jack? You can’t appeal it at that point. Game over,'” he said in a recent YouTube interview. The order, he claimed, is “extremely ominous” for prosecutors in the case.

Former federal prosecutor, David Weinstein, told Politico in a report published on April 5 that regarding the jury instructions to both President Trump and prosecutors, “I am not a conspiracy theorist, and I don’t want to say this is being done to intentionally delay the way that the case is moving along, but the longer this drags out, it seems that way.”

The documents case was initially set for trial on May 20, but Judge Cannon heard arguments last month on a new date without immediately setting one. Both sides have said they could be ready for trial this summer, though defense lawyers have also said President Trump should not be forced to stand trial while the election is pending.

The Associated Press contributed to this report.