Loose Cannon: Common Questions about the Judge in the Trump Documents Case
If you’re like many decent Americans, you groaned in disbelief when it was announced that Judge Aileen Cannon would preside over the Trump documents case. Really? That judge? The one who acted like a member of Trump’s defense team earlier?
It turns out, this common reaction is quite relevant to the ultimate question of whether Cannon should be the presiding judge on this matter, and whether she will still remain in charge of it down the road. I’ll get into why that is below.
Also today, I will try to answer some of the most frequently asked and yikes-inducing questions. I should warn you that you probably will not like some of the answers. But the law has a way of balancing itself out when it’s off-kilter; it is often the case that the more “off” it is, the stronger the pull toward normal rules and process.
With that in mind, let’s dive in.
First things first
How the hell did we get her again? Was this some kind of fix, or was it just dumb luck?
From everything I have read, it does appear to be the latter. Assignments of cases in the Southern District of Florida are a randomized process, performed by a computer. There are some 15 federal judges who might conceivably have been assigned, and Cannon was one of them. Some of the more senior judges already had full caseloads at the time of the assignment, so they weren’t going to get the case. Instead it fell, by chance, to the least senior member of the Southern District of Florida.
Cannon is a Trump-appointed judge with only three years’ experience on the bench who already has shown her willingness to bend over backward for him. Trump has always been an incredibly lucky man, and let’s face it, here he pulled the best judge he might have hoped for. That sucks for us and for the process of justice and accountability.
Cannon could fire some bad shots and do significant damage
If you’re already depressed by the above, I apologize. This part gets a bit worse, so take a deep breath before reading further. I promise to leave you with some hope after getting through this section.
The judge in any federal matter has enormous influence on how the case proceeds. Here, Cannon will be ruling on a number of very important matters, including pre-trial motions. Those likely will include a motion to dismiss the indictment entirely for prosecutorial misconduct, an attack upon the use of Trump’s lawyers’ notes and his testimony before the grand jury, as well possibly a motion to exclude evidence based on how the the seizure of the documents took place. There are lots of ways Trump’s lawyers will go after the charges and evidence to try and knock some or all of them out early.
If Judge Cannon doesn’t dismiss some or all of the charges, the case will still have to go through a lengthy and complex question of how the top secret / classified information is to be handled. Will there be nonclassified summaries of the documents prepared? Who, if anyone, will get to see the originals? How will the jury determine if something truly is important to the national defense if they can’t see the documents?
Throughout this process, there would be many opportunities for a biased judge to make the government’s case very difficult to prosecute, or at least extremely time consuming. If she is inclined to drag this out, she could take so long ruling on motions and extending the discovery process that a trial prior to the election becomes impossible. Then, if Trump or another Republican wins the election, they could direct the Justice Department to drop the case, or even pardon Trump. So, the longer this drags out, the less likely that we achieve a result before the election. “This is a situation where speed equals substance,” remarked retired federal judge Nancy Gertner, now a Harvard Law School professor, who was interviewed by the Washington Post.
The power of the calendar, in fact, is her most potent potential weapon, should she want to lean a bit toward Trump. Despite the district being a “rocket docket”—one known for its speedy trial process—she could set a trial date a year from now, but then in a few months determine that it is not feasible to meet that goal and rule that the election would be too close for Trump to get a fair trial, pushing the date into 2025.
We were already in completely new territory with an indicted former president running for a second term; should Trump somehow win the election, the prospect of a trial taking place after he is president-elect or even president presents entirely new challenges and could break the public’s already-strained trust in the legal system.
Then there’s the even more nightmarish possibility that we get all the way through a trial, but she doesn’t let the jury deliberate, issuing a directed verdict in Trump’s favor. Such a ruling means she has personally determined that there is no legally sufficient, evidentiary basis for a reasonable jury to reach a different conclusion. The really bad news is that a directed verdict of innocence is not an appealable ruling.
One step down from that would be to allow the jury to deliberate, and if they find Trump guilty, to then undo that with a directed verdict in his favor. However, that ruling would be appealable. Small comfort.
Finally, Cannon would have enormous latitude when it comes to actual sentencing. The prosecution could appeal an extremely lenient sentence, pointing to the federal guidelines on sentencing, but she’d have the first say.
Okay, so I’ve probably sufficiently scared and depressed you, and for that I am sorry. But on to the guardrails that might make all of this moot!
Cannon can be challenged
It turns out, there is a federal rule that governs whether a given judge should preside over a case. It’s located at 28 U.S.C. Sec. 455(a), and it says that a judge “shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.”
The wording of that rule matters a great deal. As legal analysts Norman L. Eisen, Richard W. Painter and Fred Wertheimer laid out in an OpEd, the standard isn’t whether the judge was actually biased or there was strong evidence of such actual bias. The standard is whether people might reasonably question her impartiality.
Remember up top where I said there was a collective groan when her name was drawn? That’s actually the sound of millions of reasonable people questioning whether she can be impartial. And the Eleventh Circuit Court of Appeals is likely to take that into account if it comes to that.
We groan because we know her history in her earlier case with Trump. Her rulings not only got the law completely wrong, they were based on the assertion that the former president somehow stands in a special place relative to other defendants. And for that she was roundly and unanimously rebuked by a very conservative appellate panel, who noted that her ruling sought to “carve out an unprecedented exception in our law for former presidents.”
“The appearance of partiality here is not because she ruled in his favor. The appearance issue is the way she ruled in his favor,” remarked Professor Gertner, the former federal judge.
In short, Cannon has already shown her bias and preference for former presidents (or at least in this case Trump), and so it’s not only reasonable but an actual fact that many people already don’t trust that she will act impartially now. It’s that mistrust that endangers confidence in the fairness of the proceedings and does damage to the reputation of the court, and the Court of Appeals could and likely would reassign the case based on that reason alone. In fact, it’s quite possible the Chief Judge of the district, the Hon. Cecilia M. Altonaga, a George W. Bush appointee, is already considering how to head off this disaster and hand the case to someone else.
When to challenge her?
There are many options and opportunities for Special Counsel Smith to challenge Judge Cannon under Section 455(a), but some are more likely than others. He won’t want to wait too long to do it, as the longer the case goes under her, the more disruptive it would be to reassign it, and courts don’t like that. On the other hand, if he moves too quickly, the only basis he has for demonstrating her bias will be her boneheaded rulings in the earlier civil matter favoring the man who appointed her.
Assuming Cannon does not look at the rule and perform some kind of miraculous, self-aware assessment to graciously conclude that others reasonably might mistrust her impartiality, then the best shot for Smith would be to wait for her to make another unsupportable, biased ruling in favor of Trump.
Most of her rulings on the pre-trial motions could likely be appealed immediately, with Smith asking the appellate panel for a “writ of mandamus.” Yes, that sounds like Harry Potter speak, but it essentially means a request that the appellate court intervene, even before the suit is over, to overturn a bad ruling. This is what happened before when Cannon refused to allow the Justice Department to use the government’s own documents in its ongoing investigation. The government filed what’s called an “interlocutory” —meaning mid-case—appeal of that ruling, and the appellate court smacked Cannon down twice: once initially so that the government could continue its use of the documents, and then permanently later.
It’s at this time, when the case is “remanded” back to the trial court, that the Eleventh Circuit might rule that it really ought to go to another judge, since she had ruled incorrectly for Trump in the civil matter and now again for him in this criminal matter. I think the chances are high that if she puts her thumb on the scale early for Trump, she will have the case taken away from her as soon as her first bad ruling comes up for review.
But here’s the really ironic thing: Cannon may actually be incentivized to play entirely by the book in order to avoid another scathing rebuke from the Eleventh Circuit. She has her entire lifetime appointment as a federal judge to consider, and so it’s very possible she is sufficiently chastened by her first experience not to go outside her lane in this one. “I tried to help you the first time, and I got burned badly!” is a common experience for anyone in Trump’s orbit.
What about a stealth play though, where she acts all impartial and normal up until the very end when she hands Trump a directed verdict? Isn’t that possible?
Well, yes. If she really wants to ruin the rest of her life for a man who likely will do nothing for her, that’s up to her. In response to such a move, there is the possibility that she would be impeached by a Democratic House (and even convicted by a Senate, but I wouldn’t bet on that part). And of course, there are the history books, where she’d probably rather not see her name. Perhaps she has no shame, but she may want to live out the rest of her days without people shouting at her all the time wherever she goes.
Summary thoughts
It is somewhat ironic that her prior sycophantic rulings and the attention of the world on her role in this case might produce a result that Trump doesn’t like—a judge who carefully plays by the book. If she does that, out of wariness and caution, Trump’s own legal jeopardy rises considerably.
We will have to see how her first ruling goes. If it’s as before, with her thumb pressing hard on the scales in Trump’s favor, my guess is that she will be off the case. If she is more circumspect, she might last longer, at least until she has to rule on the complex question of how to manage the handling and discovery of classified evidence. Her prior rulings demonstrate that her brain isn’t the most crystal clear glass in the bar, so she may overreach here as well, perhaps not out of bias but out of incompetence. If that happens, she may be out again because public confidence in her ability to rule impartially will be utterly destroyed.
This is why I have some hope that we will not be stuck with her for the entirety of the case. I hope I’m right, but we will know more as the case progresses.
My concern about Judge Cannon, is that like Clarence Thomas, she does not have a judicial mind of her own. She is placed into her role by the Federalist Society hierarchy because she is a member and can be counted on to be like Justice Barrett, in a docile role when it comes to the men who run things. So, I can see her sacrificing her career for the good of the Federalist Society, believing that they will come back in power and protect her career. So, I hope that she is removed before the final decision is made, and it is not made many years down the road.
A mentor early in my adult life gave me great advice: It is not enough to do the right thing. You must look like you do the right thing. The important piece of that is how we assess trust. And from any angle (unless she overplays the impartiality to the hilt), it is a stretch to see her as trustworthy.