In U.S. v. Torkington, the 1989 case linked above, the Eleventh Circuit did just that, ordering that the case be reassigned to a different district judge “to preserve in the public mind the image of absolute impartiality and fairness of the judiciary,” citing a pattern of rulings and statements that created “the appearance of a lack of neutrality.”
"For Judge in Trump Documents Case, Unusual Rulings Are Business as Usual [...]Judge Aileen Cannon has repeatedly proven willing to hear out even far-fetched arguments from the former president’s legal team, including a challenge to the appointment of the special counsel, Jack Smith. [...] Reaching back to the early 1970s, courts have repeatedly rejected efforts like Mr. Trump’s to question the legality of independent prosecutors. Those have included the Supreme Court upholding the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision that was largely focused on the issue of President Richard Nixon’s claims of executive privilege. P - Judges have also tossed efforts to invalidate the work of special counsels like Robert S. Mueller III, who examined connections between Russia and Mr. Trump’s 2016 campaign, and David C. Weiss, who has brought two criminal cases against Hunter Biden, President Biden’s son. P - Despite this record, however, Judge Cannon has decided to consider the constitutionality of Mr. Smith’s appointment anew — and not on the merits of written briefs, but rather at an expansive hearing that will spill across two days. The proceeding might go beyond the normal process of merely making arguments and could include, as the judge recently wrote, the “presentation of evidence,” though it remains unclear what evidence she meant."
Cannon 'for Trump' said, special prosecutors appointed by AG are illegal under the constitution, and that no court had previously particularly ruled on the legality of them. Wrong. As recently as 1918:
Trump-appointed judge upholds Mueller’s legitimacy [...]Judge Dabney Friedrich, who Trump appointed to the U.S. District Court of Washington D.C. last year, is the fourth judge to quash efforts to upend Mueller’s legitimacy and cancel his investigation. Judges overseeing the two trials of former Trump campaign chairman Paul Manafort -- D.C. judge Amy Berman Jackson and Eastern District of Virginia Judge T.S. Ellis -- rejected Manafort’s bid to invalidate Mueller. https://www.politico.com/story/2018/08/13/mueller-legitimate-court-ruling-774888
One other article cited by Mr. Kirschner:
“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel,” said Peter Carr, a spokesman for Smith. “The Justice Department has authorized the Special Counsel to appeal the court’s order.” https://www.washingtonpost.com/national-security/2024/07/15/trump-classified-trial-dismisssed-cannon/
Also, according to Kirschner, she said SCOTUS had not ruled on the question, while but in fact - at 6:33 - they did indirectly in the '70s Nixon case when they said the Special Prosecutor's subpoena for the Nixon tape had to be acceded to:
Court Orders Nixon to Yield Tapes; President Promises to Comply Fully Justices Reject Privilege Claim in 8-to-0 Ruling
By John P. MacKenzie Washington Post Staff Writer Thursday, July 25, 1974; Page A01 The Supreme Court ruled yesterday unanimously, and definitively, that President Nixon must turn over tape recordings of White House conversations needed by the Watergate special prosecutor for the trial of the President's highest aides. https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072574-1.htm
He thinks the 11th Court of Appeal will reverse Cannon's ruling as they did once already earlier.
OOps, almost forgot, Kirschner also suggested Cannon had been influenced by the Clarence Thomas note attached to the SCOTUS immunity decision:
Clarence Thomas signaled how he might rule on a challenge to Trump special counsel. Would other justices follow?
A court ruling that dismissed Trump's Mar-a-Lago documents indictment echoed language in a concurring opinion Thomas wrote in the former president's election interference case.
July 16, 2024, 7:00 AM GMT+10 By Lawrence Hurley
WASHINGTON — When the Supreme Court this month handed a big win to former President Donald Trump on presidential immunity, conservative Justice Clarence Thomas wrote his own opinion raising questions about a related issue: Was special counsel Jack Smith lawfully appointed?
"If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people," Thomas wrote. It was questionable whether Smith's appointment was indeed valid under the Constitution's Appointments Clause, he added.
Thomas did not definitively answer the question, but U.S. District Judge Aileen Cannon echoed his approach to Trump’s election interference case Monday when she dismissed the charges in Trump's classified documents case in Florida, which Smith is also prosecuting.
Inexperienced and lonely -- Judge in Trump Documents Case Has Scant Criminal Trial Experience
"For Judge in Trump Documents Case, Unusual Rulings Are Business as Usual [...]Here’s What It Would Look Like to Remove Judge Cannon"
Related: How Trump ended up with Judge Cannon by James D. Zirin, opinion contributor - 06/16/23 12:30 PM ET [...]What Smith did not know, or failed sufficiently to appreciate, is that the pool of judges administratively eligible to try the case was not 26 but four. (If you remove from consideration the senior judge, the eligible pool narrows to three.) The grand jury that returned the Trump indictment sat in Miami because the courthouse facilities were more accommodating than those in Palm Beach, but an administrative order deemed the investigation a Palm Beach inquiry. https://thehill.com/opinion/judiciary/4052380-how-trump-ended-up-with-judge-cannon/
Judge Aileen M. Cannon, under scrutiny for past rulings favoring the former president, has presided over only a few criminal cases that went to trial.
Judge Aileen M. Cannon, 42, has been on the bench since November 2020, when President Donald J. Trump gave her a lifetime appointment shortly after he lost re-election. Senate Judiciary Committee, via Associated Press
By Michael S. Schmidt and Charlie Savage Michael S. Schmidt reported from New York, and Charlie Savage reported from Washington.
June 14, 2023
Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.
A Bloomberg Law database lists 224 criminal cases that have been assigned to her, and a New York Times review of those cases identified four that went to trial. Each was a relatively routine matter, like a felon who was charged with illegally possessing a gun. In all, the four cases added up to 14 trial days.
Judge Cannon’s suitability to handle such a high-stakes and high-profile case has already attracted scrutiny amid widespread perceptions that she demonstrated bias in the former president’s favor last year, when she oversaw a long-shot lawsuit filed by Mr. Trump challenging the F.B.I.’s court-approved search of his Florida home and club, Mar-a-Lago.
In that case, she shocked legal experts across the ideological divide by disrupting the investigation — including suggesting that Mr. Trump gets special protections as a former president that any other target of a search warrant would not receive — before a conservative appeals court shut her down, ruling that she never had legitimate legal authority to intervene.
“She’s both an inexperienced judge and a judge who has previously indicated that she thinks the former president is subject to special rules so who knows what she will do with those issues?” said Julie O’Sullivan, a Georgetown University criminal law professor and former federal prosecutor.
In theory, Judge Cannon could step aside on her own for any reason, or the special counsel, Jack Smith, could ask her to do so under a federal law .. https://www.law.cornell.edu/uscode/text/28/455 .. that says judges are supposed to recuse themselves if their “impartiality might reasonably be questioned” — and, if she declines, ask an appeals court to order her to recuse.
There is no sign that either of them is considering taking that step, however — or what its legal basis would be.
The appeals court last year found that she was wrong about jurisdiction law, not that she was biased. And judges have previously heard litigation involving presidents who appointed them — including the Trump search warrant lawsuit, in which, notably, two of the three appeals court judges who reversed her intervention were also Trump appointees .. https://www.nytimes.com/2022/12/02/us/trump-judges.html .
By bringing the charges in Florida, where most of the alleged crimes took place, instead of Washington, where the grand jury that primarily investigated the matter sat, the special counsel, Mr. Smith, avoided a potential fight over whether the case was in the right venue but ran the risk that Judge Cannon could be assigned the case.
But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.
In a previous case, Judge Cannon suggested that Mr. Trump gets special protections as a former president that any other target of a search warrant would not receive. Doug Mills/The New York Times
The chief clerk of the court has said that five active judges were eligible to draw Mr. Trump’s case .. https://www.nytimes.com/2023/06/10/us/politics/judge-aileen-cannon-trump-documents.html , and that Judge Cannon’s odds of receiving it were slightly higher than others because half of her cases come from the West Palm Beach division, where Mar-a-Lago is. The clerk has also said normal procedures were followed in making the assignment.
Several lawyers who have appeared before Judge Cannon in run-of-the-mill criminal cases described her in interviews as generally competent and straightforward — and also, in notable contrast to her rulings hobbling the Justice Department after the search, someone who does not otherwise have a reputation of being unusually sympathetic to defendants.
At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.
Judge Cannon’s four criminal trials identified in the review involved basic charges, including accusations of possession of a gun by a felon, assaulting a prosecutor, smuggling undocumented migrants from the Bahamas, and tax fraud. The four matters generated between two and five days of trial each.
The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.
There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.
Defense lawyers are also likely to ask her to suppress as evidence against Mr. Trump notes and testimony from one of his lawyers. While another federal judge already ruled that a grand jury could get otherwise confidential lawyer communications under the so-called crime-fraud exception .. https://www.nytimes.com/2023/03/17/us/politics/trump-lawyer-testify-documents.html .. to attorney-client privilege, Judge Cannon will not be bound by that decision in determining what can be used in trial.
The judge will likely have to vet claims of prosecutorial misconduct put forward by Mr. Trump and his defense team.
“That has already been signaled in a lot of the media statements made by Trump and his lawyers,” Samuel Buell, a Duke University law professor and former federal prosecutor, said of the misconduct claims. “This is very typical, but she is a very inexperienced judge, so even if she weren’t favorable to Trump, she might hear a lot of stuff and think she is hearing stuff that is unusual even though it’s made all the time.”
And the judge will decide on challenges to potential jurors when either side claims someone might be biased for or against one of the most famous and polarizing people in the world.
Fritz Scheller, a longtime defense lawyer in Florida who has had cases in Judge Cannon’s district but not appeared before her, said in complex and high-profile cases, even the most experienced judges are forced to think on their feet to make swift decisions.
In this case, he said, the issue of how to protect the jury from being influenced by the vast media coverage alone “will be a herculean task” for any judge.
Alina Habba, a spokeswoman for Mr. Trump, speaking to reporters in Miami on Tuesday. The case has already received vast media coverage that could influence a jury. Doug Mills/The New York Times
In the aftermath of the F.B.I.’s Mar-a-Lago search .. https://www.nytimes.com/live/2022/08/08/us/trump-fbi-raid , Judge Cannon repeatedly sided with the man who had appointed her. She blocked investigators from having access to the classified government documents seized from him and entertained an unprecedented legal theory put forward by his lawyers that White House records could be kept from the Justice Department in a criminal investigation on the basis of executive privilege.
Eventually, a conservative appeals court panel — including two other Trump appointees — reversed her, writing in a pair of scathing opinions that she had misread the law and had no jurisdiction to interfere in the investigation. The Supreme Court let those rebukes stand without comment, and she acquiesced, dismissing the lawsuit.
It remains to be seen what she will take from the reputational damage she brought upon herself at the start of what is likely to be many decades on the bench. She could continue her pattern from last year, or she could use her second turn in the spotlight to adjudicate the documents case more evenhandedly.
While Mr. Trump and his White House lawyers put forward many young conservatives to fill judicial vacancies when he was president, Judge Cannon was unusually young and inexperienced. She was 38 years old and working on appellate matters as an assistant United States attorney in Florida when Mr. Trump nominated her for a lifetime appointment, and little about her legal résumé up to that point was remarkable.
Still, the Senate majority leader at the time, Mitch McConnell, Republican of Kentucky, pushed through her confirmation vote in the lame-duck session after the election. Her nomination received little attention and did not draw particular fire from Democrats; she was confirmed 56 to 21, with 12 Democrats joining 44 Republicans to vote in favor.
The daughter of a Cuban exile, she grew up in Miami and graduated from Duke University and the University of Michigan Law School. She was identifiable as ideologically conservative, having joined the Federalist Society in law school and clerked for a conservative appeals court judge.
She had been approached by the office of Senator Marco Rubio, Republican of Florida, and asked to apply to a panel he uses to vet potential judicial candidates, she wrote on her Senate Judiciary Committee questionnaire. She also interviewed with a lawyer for Senator Rick Scott, Republican of Florida, before talking to the White House, she wrote.
(The Senate’s “blue slip” practice empowers senators to block confirmation proceedings for nominees from their states, so senators wield significant power over who the White House nominates. There are currently three vacant seats on the Federal District Court in South Florida for which President Biden has made no nomination, suggesting that Mr. Rubio and Mr. Scott have not agreed to let him fill those seats with anyone acceptable to a Democratic White House.)
Judge Cannon had been approached by Senator Marco Rubio, Republican of Florida, and asked to apply to a panel that vets potential judicial candidates. Tom Brenner for The New York Times
Judge Cannon had graduated from law school in 2008, and her 12 years as a lawyer were the minimum the American Bar Association considers necessary for a judicial nominee. A substantial majority of the bar association’s vetting panel deemed her to be merely “qualified,” though a minority deemed her “highly qualified.”
Her criminal trial experience before becoming a judge was limited.
In 2004, when she was working as a paralegal at the Justice Department’s civil rights division before going to law school, she had “assisted federal prosecutors in two federal criminal jury trials,” she wrote on the questionnaire.
From 2009 to 2012, she was an associate at the law firm Gibson Dunn, where she worked on regulatory proceedings, not criminal matters. (She wrote that she participated in two administrative trials before agencies like the Securities and Exchange Commission.)
From 2013 to 2020, she was an assistant United States attorney in Florida. While most of that time was spent on appellate work, until 2015 she had worked in the major crimes division on ?“a wide range of federal firearms, narcotics, fraud and immigration offenses” that resulted in the conviction of 41 defendants, she wrote. Most of those cases, however, ended in plea deals: She tried just four of them to a jury verdict, she wrote.
She was the lead counsel for two of those cases — both involving a felon charged with possessing a firearm, she wrote, and served as assistant to the main prosecutor in the other two cases, one of which she said involved possession of images of child sexual exploitation.
Other parts of Judge Cannon’s questionnaire answers put forward few experiences or accomplishments that clearly distinguished her as seasoned and demonstrably ready for the powers and responsibilities of a lifetime appointment to be a federal judge.
It asked, for example, for every published writing she had produced. She listed 20 items. Of those, 17 were pieces she had written in the summer of 2002 as a college intern at The Miami Herald’s Spanish-language sister publication, El Nuevo Herald, with headlines like “Winners in the Library Quest Competition.” The other three were articles published on Gibson Dunn’s website describing cases the firm had handled, each of which had three other co-authors.
The questionnaire also asked her to provide all reports, memorandums and policy statements she had written for any organization, all testimony or official statements on public or legal policy she had ever delivered to any public body, and all her speeches, talks, panel discussions, lectures or question-and-answer sessions.
“None,” she wrote.
Michael S. Schmidt is a Washington correspondent covering national security and federal investigations. He was part of two teams that won Pulitzer Prizes in 2018 — one for reporting on workplace sexual harassment and the other for coverage of President Trump and his campaign’s ties to Russia. More about Michael S. Schmidt
Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” More about Charlie Savage
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