Democrats began concocting a new impeachment scandal Friday, after special counsel Jack Smith filed a motion in the federal documents case now pending against Donald Trump in Florida. That motion called for President Judge Aileen Cannon, a Trump appointee, to bar the former president from making “public statements that pose a significant, imminent, and foreseeable danger to law enforcement officers involved in the investigation and prosecution of this case”.

Shortly after Smith filed the motion, left-wing attorneys responded as if the special counsel's request was a five-dimensional chess game that will eventually lead to Cannon's removal from the case. Roger Parloff, senior editor of Lawfare, first he hinted in the Friday evening theory, suggested that Smith had “crafted” the motion “to highlight the prejudice and hypocrisy of Judge Cannon if he does not act.”

Andrew I-Accidentally-Wiped-My-iPhone Weissmann expanded on Parloff's reflections, publication Friday afternoon X: “A smart move by Smith as Judge Cannon is unlikely to grant the gag order, will show his patent bias, and Smith can appeal to the 11th Circuit.”

Soon law professor Laurence Tribe amplified Weissmann's brainstorm, refuel and commenting, “Smith has finally filed a motion whose likely denial by Judge Cannon should prompt CA11 to drop her from the stolen documents case against Trump . . .”

Former US attorney turned law professor and NBC/MSNBC legal analyst Barb McQuade repeated the trope: publication“Jack Smith is seeking an injunction to prevent Trump from making more false and dangerous accusations against the FBI in the Mar-a-Lago case. If Judge Cannon refuses, this could be the move that prompts recusal.”

The idea that the 11th Circuit Court of Appeals, the federal circuit court that hears appeals from Judge Cannon's court and other district courts in Florida, Alabama and Georgia, would “reject” her if she denies the special counsel motion is fantastic. First, appellate courts do not “recuse” a judge; reassign a case. Second, reapportionment is extremely rare, especially in the 11th Circuit, with a 2018 article noting that over a period of more than 50 years, the circuit court had reassigned only 28 cases. In contrast, during that same time, the Seventh Circuit, where I served as a career attorney for nearly 25 years, reassigned cases 324 times. Even then, judges were reluctant to do so.

While reassignment in the 11th Circuit is rare, it does happen, but the cases where they do are extreme and involve more than the appeals court believing the lower court erred. For example, reassignment was ordered when the judge had questioned “from the bench … the wisdom of the substantive law to apply and challenged the government's decision to prosecute. [the Defendant.”] The trial judge in that case had called the charge “silly” and “a waste of taxpayers' money.” The 11th Circuit also concluded that the judge had “shown great difficulty in setting aside his prior findings on the merits of this prosecution.”

Instead, Judge Cannon's only appearance of alleged bias comes from her ruling against Smith's office. And in the context of Smith's latest motion, which effectively seeks a gag order on the leading presidential candidate in the months leading up to the November 2024 election, a denial would not establish Cannon's bias.

Indeed, it seems unlikely that the 11th Circuit would reverse Cannon if it denied Smith's motion because that motion seeks a vague and overly broad limit on Trump's speech. Specifically, Smith is asking for an order that would condition Trump's release on him not making “public statements that pose a significant, imminent and foreseeable danger to law enforcement officers involved in the investigation and prosecution of this case.” .

But what Smith presents as dangerous statements are nothing of the sort. For example, Smith complained that Trump posted that the FBI “WAS AUTHORIZED TO SHOOT ME,” was “only eager to do the unthinkable” and was “locked and loaded ready to take me out and put my family in danger …”

None of these allegations create a “significant, imminent and foreseeable danger.” However, if Smith's motion were to be granted, those very words would subject Trump to arrest and detention pending trial. Therefore, not only is it unlikely that Judge Cannon will grant Smith's motion, but it is also unlikely that the 11th Circuit will conclude that he erred in denying the request.

However, Judge Cannon is yet to rule on Smith's motion. On Monday, Trump's legal team filed one strike motion the special counsel's latest bet and asked for sanctions. Trump's motion argues a purely procedural matter, namely that the special counsel ignored local rules that require attorneys to consult with each other before filing motions.

No such transfer occurred, Trump's lawyers noted, and Smith's legal team informed them at 5:30 p.m. Friday that they would file the motion. The special counsel's office then did so over the objections of the former president's lawyers, who asked prosecutors to argue the motion first Monday. Prosecutors had no valid reason to rush the filing, said Trump's lawyers, who stressed that nothing would happen over the long Memorial Day weekend.

Why then did they file the motion when they did? Trump's legal team doesn't know, but asked the court to find out by asking about the prosecution's purpose during an evidentiary hearing.

While Judge Cannon is unlikely to question prosecutors about their motives, she may chastise the special counsel's office for violating local rules requiring opposing counsel to be consulted before filing motions. It is also likely to require such attribution before considering the motion.

But no matter how Judge Cannon ultimately rules on the motion, no one should expect the 11th Circuit to reassign the case. Heck, the reassignment probably wasn't even wishful thinking for Weissmann and his ilk. Rather, it seems likely that they came up with the theory to provide a hook to again seek Judge Cannon's recusal.

Margot Cleveland is an investigative reporter and legal analyst and serves as the senior legal correspondent for The Federalist. Margot's work has appeared in The Wall Street Journal, The American Spectator, The New Criterion, National Review Online, Townhall.com, Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on national radio shows and on Fox News, Fox Business and Newsmax. Cleveland is an attorney and a graduate of Notre Dame Law School, where she won the Hoynes Award, the law school's highest honor. She later served for nearly 25 years as a permanent law clerk to a federal appellate judge on the Court of Appeals for the Seventh Circuit. Cleveland is a former full-time college professor and now teaches as an adjunct from time to time. Cleveland is also an advisor to the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments: her beloved husband and beloved son. The opinions expressed here are those of Cleveland in a private capacity.