The recent news about possible Russian space nukes reminds us that we live in a very insecure world. That is why perhaps none of Donald Trump’s four criminal cases is more troubling than the federal prosecution brought by special counsel Jack Smith for mishandling classified documents. Unfortunately, the judge handling the case, Aileen Cannon—a last-minute appointment rushed through in the waning days of the Trump administration—has proved herself to be by far the worst of the jurists overseeing these momentous cases. Her decisions during the investigative phase of the case strayed wildly from precedent, leading to brutal reversals by the U.S. Court of Appeals for the 11th Circuit. Now Smith appears to be preparing to ask that body to overturn at least one and possibly two of her decisions. In our view, while he is there on those other issues, he should also petition them to remove her from the case.
Why do we think Smith might be headed to the court of appeals? In part because he has already sought reconsideration for the latest of Cannon’s unlawful orders. This is a step that is warranted only in rare circumstances, including when a judge has made a “clear error” that led to “manifest injustice.” In this instance, at Trump’s behest, Cannon has decided to unseal the identities of two dozen potential witnesses, along with sensitive information they provided to the government. The “clear error” Smith identifies is striking: He alleges that Cannon applied the wrong legal standard in making this decision, requiring him to make a far more stringent showing than should be needed to protect these names. In his motion for reconsideration, Smith shows that the case law—including the very cases Cannon herself cited in her order—does not establish the unreasonable hurdles she wants him to clear.
In his motion for reconsideration, Smith also argues that Cannon minimizes the risk of real-world harm and witness intimidation these individuals would face. He notes that there is a “well-documented pattern in which judges, agents, prosecutors, and witnesses involved in cases involving Trump have been subject to threats, harassment, and intimidation.” Cannon’s cavalier attitude is dangerous for the potential witnesses whose identities could be revealed. As Smith asserts in his brief, “a court’s duty is to prevent harms to the witnesses or the judicial process ‘at their inception.’ ” Cannon appears willing to abdicate that duty.
In response to Smith’s reconsideration motion, Cannon ordered Trump to respond by Friday. That will set up a dramatic ruling by Cannon: Either she reverses her position—which would be an admission that she was fundamentally mistaken about the law in a way that caused “manifest injustice”—or she leaves her ruling in place, putting individuals in jeopardy and twisting the law to help Trump. At that point, Smith may have enough ammunition to seek her reassignment from the 11th Circuit.
Beyond that contretemps, there is a second possible dispute that may be headed to the court of appeals shortly. Earlier this month saw two days of hearings on whether the defendants in the case will get access to highly classified documents under the Classified Information Procedures Act. That statute allows the government to petition the court to redact, summarize, or even withhold classified information in a criminal case. Notably, the CIPA provides the government with the ability to immediately and swiftly appeal. Thus, even if Smith loses a ruling related only to a single document, the statute allows him to go straight to the 11th Circuit.
It’s challenging to know exactly what is going on in CIPA hearings because they take place behind closed doors and the documents at issue are classified. But we have profound concerns about Cannon’s capacity to get to the right answers here. It is not only her record of seeming pro-Trump bias. She has also had little or no prior experience with the statute, having been on the bench for only three years, and is sitting in a division (Fort Pierce, Florida) that is hardly a hotbed of CIPA matters, as opposed to the federal court in a district like Washington, which deals with them often.
Should Smith appeal either the witness issue or a CIPA one, he would also be permitted to ask the 11th Circuit to reassign the case to a different judge under the law of that circuit. While rare, the 11th Circuit has ordered the reassignment of cases when the presiding judge’s conduct “gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.” This can be through a showing of bias but also in instances when “the original judge would have difficulty putting his previous views and findings aside.”
If this were the DOJ’s first trip to the 11th Circuit to complain about Cannon’s rulings, it would be too soon to expect discussion of whether she is biased and should recuse herself. But Cannon comes into these latest disputes with two strikes already against her. She was overturned twice by the 11th Circuit during the federal government’s investigation of Trump’s retention of classified documents before he was indicted.
First, the appellate court imposed an initial stay of her special master order (a stay that she erroneously rejected when the DOJ first requested it). Then, more embarrassingly, the 11th Circuit went on to overrule her appointment of a special master. Both initial moves by Cannon served Trump’s interests—frustrating and delaying the government’s investigation—and veered from the law, as the appeals court recognized.
Startlingly, throughout those proceedings, she repeatedly expressed her view that Trump deserves special treatment because of his status as a former president. She ruled that “as a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own.” The 11th Circuit forcefully rejected her position as “carv[ing] out an unprecedented exception in our law for former presidents.”
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That’s why some, including one of the authors, called for Cannon to recuse herself from this case. She did not, and has continued to quietly oversee the proceedings. After the initial hubbub surrounding the indictment and the revelation that Cannon was assigned, public attention has focused largely elsewhere as more Trump indictments have unfurled, including those alleging crimes committed to overturning the 2020 election.
But in the meantime, she has repeatedly taken steps that appear to us to unduly favor Trump. She has postponed pretrial deadlines, making a May trial virtually impossible. That is unconscionable. The prosecution for pilfering classified documents and obstructing justice is arguably the most straightforward of the four criminal cases Trump faces. He is charged with taking classified documents he was not supposed to have, the government repeatedly asked him to return them, and he consistently refused and allegedly interfered with the government’s investigation and retrieval efforts. The applicable law is straightforward, the underlying facts are clear, and the government’s interest in enforcing these national security laws is plainly strong.
That plays into Trump’s dilatory desires, and not just with respect to the Florida prosecution. To make things worse, Cannon hasn’t actually gone ahead and rescheduled the trial date, interfering with the ability of other courts overseeing the Trump prosecutions to utilize that time. Because her May date is still on the books, she is in effect freezing other courts with Trump prosecutions from scheduling a trial that would overlap with her case. Once Cannon eventually moves her trial date, it may be too late for other cases to be slotted into the vacated time frame. It is almost as if she is intentionally running interference for the former president.
With the simultaneous CIPA and discovery developments, we may know by the end of the month if Smith will take the remarkable step of requesting Cannon’s removal from the case. So far, the government has acted cautiously—indeed, just the other week, it handed over a sealed exhibit to Trump at Cannon’s orders, even though it warned her the exhibit contained information about an ongoing investigation. But at a certain point, the government cannot acquiesce to unfair and dangerous rulings—and it may need to take bold action to protect the integrity of its prosecution.