A uniquely favorable jurist
Mark Joseph Stern at Slate takes a very grim view of the Judge Cannon situation.
Cannon’s total lack of principle, combined with her evident incapacity to experience shame, renders her a uniquely favorable jurist for the former president. Indeed, if she maintains her grasp on this case, it is nearly impossible to envision Smith securing a conviction in her courtroom.
Cannon, a Trump appointee, gained notoriety while presiding over Trump’s attempt to halt the classified documents investigation in 2022. Following the search of Mar-a-Lago, Trump’s lawyers filed a complaint alleging that the search was illegitimate and unconstitutional; they demanded the appointment of a special master and, in the meantime, a freeze on prosecutors’ review of seized materials. In a calculated act of judge shopping, the case was assigned to Cannon…
Assigned by whom? Who was doing the shopping?
Trump’s lawsuit amounted to pure gibberish, a glorified Truth Social post that alleged a Democratic conspiracy. So Cannon promptly encouraged his lawyers to rewrite the suit so it sounded marginally less asinine. She then issued an order prohibiting the government from “further review and use of any of the materials” seized from Mar-a-Lago “for criminal investigative purposes.”
In other words she acted like a consigliere for Trump.
This command marked the first time in the history of the republic that a federal judge had claimed the power to stop a pre-indictment criminal investigation into a suspect. Cannon’s overreach provoked genuine shock in legal circles and fear in the intelligence community, as it effectively blocked officials from assessing the seized documents for national security risks. (Her order reflected a profound misunderstanding of national security damage assessments.) A right-leaning panel of the U.S. Court of Appeals for the 11th Circuit—which included two Trump appointees—soon stayed this portion of her decision, highlighting its “chilling” effect on fundamental “national-security duties.”
You’d think that all by itself would be more than enough to make her the last person on the planet who should be the judge on Trump’s indictment and yet here we are. I still don’t understand why. Do they write names on bits of paper and put them in a hat and ask a passing intern to pull one out and that’s the judge? Which works because all the names on all the bits of paper are Cannon? I don’t understand why this is being allowed to happen. It’s like waking up on a bus racing down a mountain road with no guard rails and finding the driver is asleep.
But Cannon wasn’t finished. She agreed to Trump’s request for a special master and appointed Raymond Dearie, a well-respected federal judge. After Dearie tried to bring some discipline to the case, though, Cannon immediately ran interference for Trump. She overruled an order that would’ve required the former president to either disavow or stand by previous claims that FBI agents planted evidence at Mar-a-Lago. She spared him the burden of lodging specific objections to the review of individual documents, which would have revealed the bogus nature of his claim to executive privilege. And she extended deadlines to help Trump drag out the special master’s review for as long as possible.
She might as well be Ivanka.
The madness finally ended when a panel of the 11th Circuit—made up of two Trump appointees and the ultraconservative William Pryor—ruled that Cannon had no authority to hear Trump’s lawsuit in the first place, rendering every one of her orders null and void. It was one of the most humiliating appellate smackdowns in recent history, a total demolition of literally every action that Cannon had taken from the outset of the case. The 11th Circuit accused Cannon of attempting “a radical reordering of our caselaw” that violated “bedrock separation-of-powers limitations.” And it directed her to relinquish control over the case.
So why why why is she on this case? When she’s literally the worst possible person on the planet for the job?
Smith, for his part, has the option of requesting a different judge; 11th Circuit precedent allows reassignment when the presiding judge appears unable to put “previous views and findings aside.” (This is a nice way of saying that they’re in the tank for the defendant.) Trump would surely fight such a request, and it’s impossible to say where the 11th Circuit would come down.
Oh well it’s only a parking ticket.
> Assigned by whom? Who was doing the shopping?
Assigned MAGA At Birth.
It all brings to my mind the investigative journalism of the immortal Fred J. Cook. Were he still around, he would be delighted to write a piece or two (hundred) about Trump and his shenanigans. The US Founding Fathers and the Constitution they wrote (separation of powers and all that) may yet turn out to be a ship run aground on the Trump Reef.
https://www.independent.co.uk/news/obituaries/fred-j-cook-36515.html
So I’ll preface this by saying that literally everything I know about this aspect of the case comes from listening to Ken White on Serious Trouble and Ben Wittes on The Bulwark indictment special. If I get something wrong blame me, not them.
The original shopping for Cannon was done by Trump lawyers. As I understand it that was within the bounds of reasonableness.
The case is most naturally reassigned to her because of what I think Ken referred to as the ‘low number’ rule. This case is related to a previous case and the lowest case number suggests a judge who is already familiar with the issues, so assign to them (Cannon in this case). Any attempt to go for another judge makes it appear the Justice Department is judge shopping. Not really something they want to be accused of under the circumstances.
Yes, they could ask Cannon to recuse herself because she might be biased, but if she really feels no shame she can refuse and then the prosecution has to conduct their case in front of a judge they have publicly declared to be biased. Yay, fun.
Justice could ask the chief judge of the 11th Circuit to assign a different judge, but see both points above.
It’s bad all around, but as Ken said, the system assumes bad actors and assumes some cases will be ruined as a result. Better than allowing ad hoc changes to procedure which might be ‘right’ when we do them, but could be very ‘wrong’ when someone else does them.
What a fucking nightmare.
I suppose the potential silver lining in this is that if Trump ends up going to jail anyway, he can’t credibly blame bias on the judge or jury’s part.
(I realized I’m grasping here, but I need something to keep my spirits up.)
From https://www.youtube.com/watch?v=Yn0L67s9iWg
This guy is a practicing attorney. He makes a couple of points.
First, Cannon was assigned to the case by the court clerk. That’s the clerk’s job: to assign judges to cases. The assignment was likely made because Cannon heard Trump’s previous motion on the investigation. There is no deep legal principle here: just administrative convenience. The clerk presumes that a judge who has already heard motions on a case will already be up to speed and better positioned to move forward with it.
Second, if Cannon does not recuse herself, her superiors on the circuit will likely reassign the case, precisely because Cannon made such a mess in her rulings on Trump’s previous motions.
Finally, the trial is in Miami, but Cannon sits in Fort Pierce, which is 100 miles away. He thinks it unlikely that she will commute 2 hours each way from Fort Pierce to Miami each day that court is in session just to hear one case.
Steven: Maybe she can stay at Mar a Lago to reduce her commute?
Boy I hope he’s right. I’m seeing a lot of clashing legal opinions.
This NYT article reports on the clerk’s explanation for how Cannon was assigned to this case. In a nutshell:
Judge Cannon’s handling of the prior case was irrelevant. The “low number” rule Rob reports Ken White mentioning was not at play here.
Her assignment was “random” in the sense that judicial assignments usually are — that is, strictly speaking, although there were 10 judges who were eligible to receive the case, it was not a 1 in 10 chance, because that’s weighted by how full each judge’s caseload is, and 3 of those 10 judges are senior judges (semi-retired) who have smaller dockets and are at or close to their limit.
There is nobody, in the clerk’s office or otherwise, who sits down and says “hmm, who do I think should get this case?”
Short of trying to file in a different division, or a different district entirely, there wasn’t anything DOJ could have done to avoid the assignment — and filing somewhere else might have led to venue challenges, motions to transfer, etc.
Trump was able to get Cannon assigned to his civil case because he filed it in the division where she was one of only two judges. Even then it was not a sure thing, as another civil case he filed (against Clinton et al) got assigned to Judge Middlebrooks instead. It’s not like that division in Texas where the abortion pill case got filed because there’s exactly one judge and it was a virtual guarantee they’d get their anti-choice hack assigned.
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I’ve actually seen the assignment done in the Northern District of California, though this was many years ago. I took something to be filed in the federal court. The clerk, as part of assigning the case number, went to a lottery-style drum, turned the crank a few times, opened the little door and pulled out a paper slip with the judge’s initials on it. The initials were added onto the end of the case number.
My experience with challenges to a trial judge are almost exclusively in the California state trial courts. Under California statute, when a case is initially assigned to a trial judge, a party may challenge the judge immediately, without the need for any specific showing. Other statutory provisions allow a challenge for cause. Both kinds of motions can be made without affecting the standing or reputation of the party (lawyer) making the challenge.
I am not really understanding why it should be any different in federal court (re: challenges for bias; I don’t think the federal courts have an initial peremptory challenge like the California courts do), especially when the particular jurist has already demonstrated blatant bias and has already been admonished by the appellate court for egregious conduct.