The challenge of kicking Aileen Cannon off the Trump case
It’s a high bar to reassign a judge. We may learn in the days and weeks ahead if Cannon intends to clear it.
Donald Trump’s classified documents case is entering a crucial juncture, with U.S. District Judge Aileen Cannon set to make important decisions on issues like access to classified material and protecting witness information. Given her behavior prior to and during the criminal case, the question arises whether she’ll be kicked off of it. At this point, it will be an uphill battle for special counsel Jack Smith if he tries to remove Cannon, but exactly how she handles upcoming rulings and how she comports herself generally matter.
It’s an uphill battle because the law on reassigning judges is tough. The 11th U.S. Circuit Court of Appeals (which covers Florida) has deemed reassignment appropriate “where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.” On its face, one might think from that language that Cannon shouldn’t be on the case. But she is on it — and might stay on it — because it’s not that simple.
Legal experts say Cannon’s focus on jury instructions seems odd because a trial is not imminent and the judge still has a number of decisions to make in the pretrial proceedings before the instructions are relevant. They also say the premise of Cannon’s orders indulged some mangled interpretations of laws that have been pushed by Trump’s lawyers and supporters.
The government’s response highlighted its frustration with the instructions and urged Cannon, a Trump nominee who has been on the federal bench since late 2020, to quickly decide on some of these key legal questions. They wrote that relying on Trump’s interpretations of these laws would “distort the trial” and said that if the court “were to defer a decision on that fundamental legal question it would inject substantial delay into the trial.”
Trump’s team said Cannon’s assignment is consistent with his position that the “prosecution is based on official acts” he took as president — not illegal retention of materials.
Cannon asked the lawyers to write jury instructions about the Presidential Records Act, or PRA, which says that presidential records belong to the public and are to be turned over to the National Archives and Records Administration at the end of a presidency.
In one scenario, Cannon asked them to craft jury instructions that assume the PRA allows presidents to designate any documents as personal at the end of a presidency — which is what Trump’s legal team has argued he had the authority to do. She then said they should also write separate jury instructions predicated on the idea that jurists would be able to determine which of the documents Trump is accused of illegally retaining are personal and which are presidential.
In their proposed jury instructions, Trump’s attorneys leaned into their argument that the former president had the ultimate authority to determine the designation of the documents that he is accused of illegally retaining.
“You heard evidence during the trial that President Trump exercised that authority, at times verbally and at times without using formal procedures, while he was President,” Trump’s legal team wrote in the hypothetical jury instructions. “I instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump’s declassification authority while he was President of the United States.”
The government has said it is the Espionage Act — not the PRA — that guards classified materials. Trump is charged with 32 counts of violating a section of the Espionage Act, with each count corresponding to a distinct classified document that he is alleged to have retained after leaving office. He is also charged with eight counts related to alleged obstruction of officials’ efforts to retrieve the materials.
Prosecutors suggested in their filings that they would appeal if Cannon decides to intertwine the PRA with the Espionage Act in jury instructions. Trump is not charged with violating the PRA and prosecutors said throughout their filing that the PRA should not be in those instructions.
To understand why, let's consider the following passage from an 11th Circuit case over trafficking counterfeit Rolexes, United States v. Torkington, in which the appeals court ordered reassignment:
The judge in this case has been reversed once by this Court ... and dismissed the case at the first opportunity by construing a motion for mistrial as a motion for entry of judgment of acquittal. The judge from the bench questioned the wisdom of the substantive law he had to apply and challenged the government’s decision to prosecute Torkington. For example, the judge stated at various times that he felt the taxpayer had little interest in this type of suit, that this prosecution was ‘silly,’ and that it was a waste of the taxpayers’ money. He also termed the prosecution a ‘vendetta’ by Rolex Watch against the defendant.
Now, you might be thinking: Wait, wasn’t Cannon already reversed twice by the circuit court? Yes, she was — badly — during litigation before Trump was charged. That’s what raised questions about the propriety of her handling this criminal case when it was assigned to her. And that history, combined with her handling of the case since, raises anew the question of whether the 11th Circuit would want a different judge to handle it. But comparing Trump’s case to Torkington leads to the question of whether the circuit court would distinguish it in Cannon’s favor, because her prior erroneous rulings technically came in a separate (albeit related) matter and because she hasn’t made the sort of comments called out in the Torkington case.
That doesn’t mean Cannon should be handling Trump’s case. Rather, it illustrates how the law makes it difficult to kick her off. Ultimately, whether she stays on is likely in her own hands: It’s not just a question of whether she makes incorrect rulings, but also whether she demonstrates an obvious bias, like the judge’s statements in that other case. Just being a bad judge isn’t enough.
And for anyone hoping for a different judge due to concerns over Cannon further delaying the case, assigning a new one could just add more delay. But if Trump loses the election and prosecutors are no longer racing that clock, then a more experienced judge could help ensure not only that the case moves toward trial efficiently but that the trial itself is handled properly, given the vast discretion afforded trial judges. Yet it’s that discretion — and the high bar for recusal and reassignment — that may keep Cannon on the case.
