Cannon, a Trump appointee, made controversial rulings in Trump’s favor during the investigation into his personal possession of classified government documents. Some observers fretted that Cannon would run Trump’s trial in a biased manner.
The Washington Post confirms that Trump Judge Aileen Cannon has been assigned to his trial.
So yeah, what an embarrassing spectacle this will be for the entire federal judiciary.https://t.co/d05GVdkC9Q
— Ian Millhiser (@imillhiser) June 9, 2023
But some other experts cautioned that Cannon would not necessarily preside over the trial, arguing that she would either recuse herself or be reassigned by a higher court.
Who is Cannon?
Trump nominated Cannon in 2020 to the U.S. District Court for the Southern District of Florida — which includes Trump’s residence at Mar-a-Lago in Palm Beach, Fla., where he kept the documents. Prior to her appointment, she was a federal prosecutor in the U.S. attorney’s office for the Southern District of Florida.
She has been a member of the Federalist Society, an activist network of conservative attorneys and legal scholars, since she was in law school at the University of Michigan.
Why was she chosen to oversee this trial?
Federal trial judges are typically assigned at random, but Cannon was already assigned last year to preside over Trump’s lawsuit demanding a “special master” in an attempt to deny the FBI access to materials it had seized that Trump claimed were subject to executive privilege.
“If the case is being overseen by the same district and magistrate judges, that means the court likely considered the indictment to be ‘related’ to the search warrant and intentionally assigned it to those judges,” former senior Justice Department national security official Brandon Van Grack told ABC News.
“[Cannon’s] rulings on everything from procedural motions to Trump’s planned efforts to have the case thrown out before trial will have vast implications for the course of the case,” ABC News noted.
Why do many distrust her?
Cannon ruled in favor of Trump’s request for a special master — an independent arbiter who would review the documents, many of them classified — much to the consternation of former and current federal prosecutors across the political spectrum.
“Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said it was egregious to block the Justice Department from steps like asking witnesses about government files, many marked as classified, that agents had already reviewed,” the New York Times reported.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Rosenzweig told the Times. “Enjoining the ongoing criminal investigation is simply untenable.”
"The opinion, I think, was wrong," William Barr, who served as attorney general under Trump, told Fox News. "It's deeply flawed in a number of ways."
Even 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 by a unanimous three-judge panel on the U.S. Court of Appeals for the 11th Circuit. Two of those appellate judges were also appointed by Trump. (The appeals court had already overturned Cannon’s refusal to grant a stay of her ruling while the appeal was pending, another move by Cannon that shocked legal experts.)
What happens next
The Washington Post confirmed with multiple sources that Cannon has been assigned to preside over the case, at least initially.
“Trial judges can affect the timing and shape of cases in many ways,” the Post reported. “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.”
Cannon’s rulings will be subject to appeal. But the Post cautioned that “such litigation could add months of delays or might have to wait until after trial, dragging out the process to 2025 or longer.”
Some commentators speculate that Cannon will either recuse herself or that the Justice Department will successfully request the appeals court remove her from the trial.
“Although a judge’s behavior in court generally doesn’t form the basis for recusal, the 11th Circuit has ordered ‘reassignment’ where a judge leans so heavily for a defendant they call their objectivity in the eyes of the public into question,” Joyce Alene, a professor at the University of Alabama Law School and a legal analyst for NBC News, wrote on Twitter.
“This is persuasive authority that Judge Cannon must step aside if the case falls to her as a permanent assignment. Her court & certainly the 11th won’t tolerate the damage it would do to their credibility if she failed to voluntarily recuse.”