How to Force Judge Aileen Cannon Off the Trump Case

Soon after the news broke that Donald Trump will become the first former
president to face federal criminal charges�37 counts that include willful
retention of national defense information under the Espionage Act,
conspiracy to obstruct justice, concealing documents, and false
statements�it was also revealed that Judge Aileen Cannon is scheduled to
oversee the case. In our view as experts with more than a century of
collective experience in judicial and other ethics questions, that cannot
stand. She must recuse herself from the case or, if she refuses, be
reassigned by the appropriate judicial oversight authorities.

Her name may be familiar to many. Judge Cannon heard Trump�s challenge to
the government�s classified-documents investigation, appointed a special
master to review the documents, and temporarily barred the Justice
Department from using those records in its investigation. That much-
maligned decision was later reversed by a three-judge panel of the U.S.
Court of Appeals for the 11th Circuit consisting of three conservative
judges: two Trump appointees and the G. W. Bush appointed Chief Judge
William Pryor. They wrote that her decision violated �clear� law and that
her approach �would be a radical reordering of our caselaw limiting the
federal courts� involvement in criminal investigations� and �violate
bedrock separation-of-powers limitations.�
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Now that the same investigation has resulted in an indictment against
Trump, Judge Cannon�s prior, fundamentally erroneous approach casts a
shadow over the proceedings. Because her earlier handling of this case
went well outside the judicial norm and was roundly criticized by the
Court of Appeals, reasonable observers of this case could question her
impartiality. Federal law has a way to deal with this challenge: under 28
U.S.C. � 455(a), a judge �shall disqualify himself [or herself] in any
proceeding in which his [or her] impartiality might reasonably be
questioned.� Judge Cannon�s situation clearly fits that test, and she is
obligated to recuse herself in Trump�s case.

Recusal is necessary here to avoid serious concerns about Judge Cannon�s
impartiality in the public eye. The judicial recusal rule is about
preserving the public�s confidence in the judicial system; it does not
require a showing of actual bias. Rather, as the Supreme Court has
explained, it simply asks whether �an objective observer� in the public
�would have questioned [the judge�s] impartiality.� That is clearly the
case with Judge Cannon. It is irrelevant whether a judge subjectively
believes herself to be impartial. Because the statute aims at ensuring
both justice and �the appearance of justice,� a federal judge must recuse
if facts connected to the judge�s actions in the case would cause an
objective observer to doubt the fairness of the proceedings.

Several features of this case make it clear that members of the public
will harbor serious concerns about the fairness of the proceedings and
Judge Cannon�s impartiality, well beyond the objective observer standard.

First, it is common knowledge that Judge Cannon already took the deeply
erroneous step of ordering federal prosecutors to refrain from using the
materials seized from Mar-a-Lago in their investigation, when she
appointed a special master to review whether these materials were subject
to executive or attorney-client privilege. The charges here are the
direct result of the investigation her order temporarily halted.

Second, Judge Cannon�s other statements and actions in the prior
proceedings made clear her view that Trump is entitled to differential
treatment than any other criminal defendant. She wrote that �[a]s 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.� She reiterated this position in denying the government�s motion
for a partial stay of her order pending appeal, stating that her
consideration �is inherently impacted by the position formerly held by
[Trump].� After the 11th Circuit rejected her position and granted a
partial stay to allow the government to use classified materials and
remove them from the special master�s review, she still ruled for Trump
on procedural issues over the views of the special master she appointed.
As the ultra-conservative panel of the 11th Circuit forcefully explained
when finally dismissing Trump�s civil action in its entirety, it was
Judge Cannon�s attempt to �carve out an unprecedented exception in our
law for former presidents� that was in a league of its own.

Third, federal courts have explained in related contexts that prior
reversals of a judge�s decisions in a case can support the conclusions
that the judge �would have difficulty putting [her] previous views and
findings aside,� and that another judge taking the case would be
�appropriate to preserve the appearance of justice.� Here, Judge Cannon
has issued a repeated series of decisions that were harshly criticized by
the appellate authorities as far outside the law. That is a pattern that
leads to the ineluctable appearance of bias.

Notably, the prior erroneous rulings had to do with the treatment of
classified documents, and she had to be schooled by the DOJ and then 11th
Circuit on her cavalier attitude. These decisions are directly related to
the current charges. And she will have to deal with those issues
constantly, including under the Classified Information Procedures Act
(CIPA), the complex statute governing how a court deals with the
intricacies of a criminal prosecution involving classified information.
Add all this on top of the fact that she is the only judge in her
division of Fort Pierce and that, for security reasons, the U.S. Marshal
with likely insist the case be tried in Miami where the arraignment will
occur, there are also substantial logistical reasons for her to step
aside. That provides Judge Cannon with an elegant exit opportunity,
should she choose to take it, without having to even address the
significant conflict issues.
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To be clear, our concern is not that Judge Cannon is a Trump appointee.
The conflict of interest is that she has already issued unusual and
profoundly wrong decisions favoring the defendant in this case that have
been severely criticized and overturned, again by conservative or Trump-
appointed judges.

Yet another dimension of recusal that judges sometimes consider is
whether it would have practical downsides. But there are no such costs
here to another judge overseeing Trump�s case. The proceeding is still in
a nascent stage, and the bulk of pretrial motions, discovery, and
hearings�which will likely be extensive�have yet to occur.

But what if Judge Cannon does not recuse herself? One possibility that
should be explored is for the chief judge of the district court, Chief
Judge Cecilia Altonaga, to reassign the case pursuant to the court�s
power under federal law to �assign [ ] cases so far as [local] rules and
orders do not otherwise prescribe.� Nothing in the Southern District of
Florida�s local rules or Internal Operating Procedures is to the
contrary. Those local procedures provide for Judge Cannon and her
colleagues to agree to transfer the case to another judge. The chief
judge should have a vigorous discussion with her under that provision. If
Judge Cannon demurs, though, the rules are silent about what happens next
and so the federal statute comes into play for the chief judge to
reassign the case. She too can point to logistical concerns, including
the security ones, in reassigning it to a judge in Miami� saving face for
Judge Cannon.

We recognize that such intervention by the chief judge is not an everyday
occurrence. If it doesn�t happen, though, there are other options. The
more likely possibility here if the Southern District of Florida chooses
not to deal with this issue is that the 11th Circuit should be called
upon to reassign the case to a different judge at the earliest
opportunity. As the case is lodged at the trial court level and is not
before the circuit at the moment, that reassignment would likely come
only as part of a reversal on appeal of one of Judge Cannon�s decisions.
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Under binding 11th Circuit precedents a case should be reassigned to a
different judge if, among other reasons, the original judge would have
�difficulty� setting aside her previous views and findings and
reassignment would not result in a waste of judicial resources. Those
factors clearly weigh in favor of reassignment here, due to the
difficulties that Judge Cannon will likely face in diverging from her
previous, unorthodox, and wrongful rulings benefitting Trump.

This is the path that appears most likely to be pursued if Judge Cannon
is to be removed because her approach thus far suggests that it unlikely
that the judge will recuse herself. DOJ might choose to make the case in
a recusal motion that it would be better for her and everyone concerned
if she stepped aside. In just about any other high-profile criminal case,
if a trial judge were to err in the direction of excessive leniency
favoring a criminal defendant in a preliminary hearing and were reversed
on appeal, law and order conservatives would be the first to say that
trial judge had a conflict and should be removed. That judge�s reputation
would be on trial. Impartiality would be too dubious. The same is true
here.