Judge Aileen Cannon Is Quietly Sabotaging the Trump Classified Documents Case

On Friday, District Judge Aileen Cannon issued a new order in the Donald Trump classified documents case adding to the mountain of evidence that she is firmly in the former president’s pocket. Trump appointed Cannon in 2020 and the Senate confirmed her appointment in the days after he lost the 2020 election. It’s deeply offensive to the rule of law for judges to bend the law to benefit those who put them on the bench. Sadly, Cannon does just that.

Cannon’s new ruling rejected special counsel Jack Smith’s entirely standard request that she order Trump to state whether he intends to rely on an “advice of counsel” defense ahead of the trial, currently scheduled for May 20. Advance notice of the defense helps expedite a trial because defendants asserting it need to provide additional discovery to prosecutors—raising the defense means that defendants must disclose all communications with their attorneys, as the defense waives the attorney–client privilege.

Judge Cannon’s brief order asserted that Smith’s motion was “not amenable to proper consideration at this juncture, prior to at least partial resolution of pretrial motions” and further discovery.

Sound innocuous? It’s anything but. Instead, it’s part of a pattern we’ve already seen of Cannon laying the groundwork for delaying Trump’s trial—until it’s too late for a jury to be empaneled and the case tried to verdict before the election.

That is, of course, just what Trump has been angling for.

Back in November, Cannon issued an order slow-walking all pretrial motions in the case. As Politico reported, she “has postponed key pretrial deadlines, and she has added further slack into the schedule simply by taking her time to resolve some fairly straightforward matters.”

As Brian Greer, a former Central Intelligence Agency attorney, told Politico, Cannon’s decision not to expedite pretrial motions “could be seen as a stealth attempt to delay the ultimate trial date without actually announcing that yet.”

New York University law professor Andrew Weissmann, the mild-mannered and knowledgeable former deputy to special counsel Robert S. Mueller, put it with uncharacteristic bluntness: “Judge Cannon’s bias is showing over and over again.” On Twitter he declared her to be “in the bag for Trump.”

By continuing to maintain the trial date while rendering the date virtually impossible to keep, Cannon evidently hopes to maintain plausible deniability from charges like Greer’s or Weissmann’s. At the same time, her pretense that the trial will commence on schedule prevents any attempt by Fulton County, Georgia, District Attorney Fani Willis to seek to advance into May the scheduling of her prosecution of Trump for attempting to interfere with Georgia’s 2020 election.

All of this suggests that Judge Cannon has learned all the wrong lessons from her first, legally untenable pro-Trump ruling of September 2022, which was slapped down quickly by the U.S. Court of Appeals for the 11^th Circuit.

In that initial decision, Cannon blatantly violated precedent to help Trump delay Smith’s national security prosecution by granting Trump’s legally groundless request to appoint a special master to rule on the propriety of the FBI’s seizure of the classified documents from his country-club home. The appellate court quickly reversed Cannon’s ruling as improper judicial interference with an entirely lawful executive branch exercise of investigative power. Such interference would grind our entire criminal justice system to a halt unless a special exception exists for Trump and him alone.

Nor could Cannon pretend otherwise. Indeed, she granted Trump’s unprecedented request on the astonishing basis that “the investigation and treatment of a former president is … unique … ,” thereby saying the quiet part out loud by defying the first principle of a society based on the rule of law: No one, not even the most powerful person, is above the law.

As the reliably conservative 11^th Circuit stated in quickly reversing Cannon’s ruling: “To create a special exception [for a former president] would defy our Nation’s foundational principle that our law applies to all, without regard to numbers, wealth, or rank.”

Unfortunately, that “humiliating admonishment”—as Los Angeles Times columnist Harry Litman put it—seems not to have taught Cannon the lesson that she mustn’t play favorites with the man who put her in judicial robes and who might yet, should he return to power, elevate her to a still higher court. Rather, the cynical lesson she appears to have extracted from her slapdown is to be more careful going forward to camouflage her favoritism.

Our legal system entrusts trial judges with a wide swath of discretionary decisions in ruling on evidence, framing jury instructions, and controlling other facets of the cases they try, with barely any appellate supervision. As a result, it’s difficult to imagine that anything that deserves to be called justice will emerge from a criminal proceeding over which Cannon presides in which the fate of her benefactor, and thus her own career, is at stake.

It may well be that Smith is biding his time before moving to recuse this manifestly compromised jurist. He may be waiting until she finally does what seems inevitable—orders that the trial date be vacated. If so, by that time, he is likely to have even more evidence of Cannon’s bias, both actual and apparent, to place before the court of appeals.

Let’s hope it won’t be too late for Trump’s alleged crimes against the nation’s security be fairly tried before the election.