Calls grow for Judge Aileen Cannon to recuse herself in Trump documents case

Aileen M. Cannon and Donald Trump
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A chorus of legal experts is calling for District Court Judge Aileen Cannon to recuse herself from former President Donald Trump’s trial on charges relating to his handling of classified documents after leaving the White House.

A Trump appointee, Cannon drew widespread condemnation for her rulings in Trump’s favor during the FBI’s investigation into Trump’s retention of national security information at his private residence and social club in Palm Beach, Fla.

Richard Painter, the White House chief ethics lawyer under George W. Bush; Norman Eisen, who occupied the same position for Barack Obama; and Fred Wertheimer, president of Democracy 21, a nonpartisan, good government advocacy organization, wrote in an article in Slate that Cannon “must recuse herself from the case.”

“Judge Cannon’s prior, fundamentally erroneous approach casts a shadow over the proceedings,” the bipartisan trio wrote. “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.”

Why was Cannon chosen in the first place?

On Friday, when Trump’s indictment was unsealed, experts inferred that Cannon had been assigned because she had already overseen Trump’s lawsuit demanding the appointment of a “special master” to block government access to documents over which Trump claims executive privilege.

But on Saturday evening, the chief clerk of the Southern District of Florida told the New York Times that Cannon was also assigned randomly to the criminal trial. Judges have certain geographic areas they cover, so Cannon draws 50% of the cases in the West Palm Beach, Fla., courthouse, the clerk said.

Opposition grows

Federal prosecutors, including many Republicans and even Trump’s own former attorney general, William Barr, sharply criticized Cannon’s handling of Trump’s lawsuit, which they considered frivolous.

The special master Cannon appointed said he was “perplexed” by Trump’s assertion of executive privilege over classified documents after he had left office. Cannon’s decision was overturned and Trump’s lawsuit was dismissed by the U.S. Court of Appeals for the 11th Circuit, which included two judges who were also appointed by Trump.

How Cannon could alter the outcome of the case

“Trial judges can affect the timing and shape of cases in many ways,” the Washington Post noted. “They can rule on motions to dismiss counts or the entire indictment, decide what evidence is admitted or excluded, and address a host of other critical questions.”

One point of contention will be that a federal judge in Washington granted a request from prosecutors to apply the “crime fraud exception” to attorney-client privilege in Trump attorney Evan Corcoran's conversations with the ex-president. Justice Department lawyers — pointing to Corcoran’s notes that Trump suggested lying to federal investigators about the existence of hundreds of classified records in his possession — argued Trump used Corcoran’s legal services in furtherance of a crime.

The Daily Beast reported Saturday evening that Trump’s team is already working on an effort to get Cannon to have evidence from Corcoran excluded from the trial.

“If Cannon agrees that the jury should not hear all of the Corcoran evidence, the Justice Department’s case won’t be over, but it will be critically hobbled,” NBC News concluded.

What are the rules governing a judge’s recusal?

The federal law governing recusal says a judge should recuse if their impartiality “might reasonably be questioned.” Stephen Gillers, professor emeritus at NYU Law, says Cannon is obligated to recuse herself because she showed favoritism toward Trump in her prior rulings.

“She was partial to Trump as a former President, which should not have any influence on the way this trial is conducted,” Gillers told the New Yorker. “I’m concerned that the partiality she expressed in her decisions last year creates a reasonable perception in the mind of a fair-minded person that she is not impartial — which is the test.”

"For her to re-emerge as the judge presiding over this historic trial would cast a long shadow over a proceeding that should be, and should be seen to be, entirely unbiased and legally sound," Harvard Law professor Laurence Tribe told Newsweek.

What happens next?

If Cannon doesn’t voluntarily remove herself from the case, the Department of Justice can file a motion requesting that she do so. If she refuses, the government can file a mandamus application with Cannon’s superiors on the 11th Circuit Court of Appeals. A three-judge panel would then decide whether to remove Cannon. “Mandamus efforts are rarely successful,” Gillers cautioned.

On Monday afternoon, the Miami Herald reported that Magistrate Judge Jonathan Goodman will oversee Trump’s arraignment on Tuesday, but Cannon “will still remain on the historic case as the lead judge.”