The growing discord between Special Counsel Jack Smith and Judge Aileen Cannon in the Mar-a-Lago documents case could stem from the possibility that she could be laying the groundwork to acquit President Trump before a jury reaches a verdict. 

The exchange between judge and prosecutor has reached a new altitude of acrimony. Judge Cannon denied Mr. Smith’s request for a final ruling on the jury instructions she intends to promulgate, calling it “unprecedented and unjust.” Mr. Smith, apparently frustrated, now writes about pursuing a writ of mandamus — a request for intervention from above that his own Department of Justice reckons as “extraordinary.”

References to the United States Court of Appeals for the 11th Circuit have increased in Mr. Smith’s more recent filings, telegraphing his intent to request review. The tribunal that oversees Judge Cannon overruled her last year when she appointed a special master to oversee prosecutors. The 11th Circuit accused her of a decision that “would violate bedrock separation-of-powers limitations.” 

Mr. Smith threatened to petition for mandamus should Judge Cannon approve directives to the jury that incorporate Mr. Trump’s contention that he was entitled to designate top-secret documents as “personal.” Mr. Smith understands that position to be “pure fiction” and accused the judge, named to the bench by Mr. Trump in 2020, of entertaining a “fundamentally flawed legal premise” by even countenancing such instructions.

Judge Cannon, likely seeking to avoid handing down a final order that would trigger Mr. Smith’s ability to launch an immediate appeal, frames her interest in jury instructions as a “genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions.” It increasingly appears as if Mr. Smith is worried that the course of her attempt will extend past the empaneling of a jury, a date that has not yet been set. 

That juncture matters because the constitutional prohibition of double jeopardy attaches once a jury is seated. That means that any acquittal in a felony case secured after that point is unappealable under the Fifth Amendment’s rule that “no person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” Judicial orders before that fateful hour can be appealed. 

Losing before a jury is an unsavory prospect for any prosecutor, but Mr. Smith’s urgency with respect to the jury instruction issue suggests he could be concerned about a more unusual outcome — a “Motion for a Judgment of Acquittal,” which either the court sua sponte or the defense can file after the government rests its case and before the jury retires to mull over its verdict. 

The Legal Information Institute explains that such a motion, also called a “directed verdict,” can be “entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion.” The prosecution cannot seek such an outcome because that would violate the defendant’s criminal right to an “impartial jury” and due process.

While directed verdicts are relatively rare, as far back as 1962 a law review article mused that “some of the worst abuses of our criminal courts result from anachronistic and artificial restraints which prevent the trial judge from directing acquittals.” Judge Cannon could reason that as Mr. Trump argues, the Presidential Records Act governs the disposition of documents in this case. 

If that is so, then Mr. Smith’s invocation of the Espionage Act in his indictment is an irrelevancy, and it is the non-criminal processes of the PRA, passed in Watergate’s wake, that would govern. If the criminal law does not apply, there is, potentially, nothing for a jury to decide. An unreviewable acquittal from the bench could ensue, and Mr. Smith would be down one of his two criminal cases against Mr. Trump.