The last time U.S. District Judge Aileen Cannon ruled on a case involving Donald Trump and his alleged hoarding of classified documents, the dressing-down from appellate judges above her was stern and blunt.
Last year, Cannon, a Trump appointee, approved Trump’s demand for an outside arbiter to examine documents that federal agents had seized from the former president’s Mar-a-Lago residence in Palm Beach, Florida. Trump’s bid clearly was a stall tactic aimed at slowing the Justice Department’s investigation, and Cannon facilitated it. The Justice Department appealed to the U.S. Court of Appeals for the 11th Circuit and won.
In reversing Cannon’s ruling, a three-judge appellate panel criticized the special treatment Cannon was giving the former president, stating, “To create a special exception here would defy our Nation’s foundational principle that our law applies to all, without regard to numbers, wealth or rank.”
Cannon now finds herself once again at the center of Trump’s documents debacle, this time with yet more import. She is assigned as the presiding judge over Justice Department Special Counsel Jack Smith’s 37-count indictment that accuses the former president of illegally retaining national defense information after leaving office and willfully defying federal agents’ attempts to retrieve the classified documents.
America awaits the moment when Cannon holds her first pretrial hearing in the case. But Americans should never see that moment, because Cannon should put the sanctity of rule of law above everything else and recuse herself from the case.
Judicial recusals typically occur under a set of circumstances in which a judge’s impartiality might reasonably be questioned. Otherwise, it should be assumed that a judge will apply the utmost fairness to both the prosecution and defense, from discovery to verdict.
Judges hold enormous power in courtrooms. They hand down critical pretrial rulings on requests by either side — rulings that create boundaries for the proceedings. Those decisions shape the course of trial, guiding what evidence and witness testimony appears before the jury. Judges also decide the fate of juror challenges by either side and play a crucial role in the crafting of instructions for the jury ahead of deliberations.
And critically, judges set the schedule of proceedings. They can keep a case humming along through pretrial motions, or if they’re poor stewards of the courtroom, allow it to get bogged down in needless, time-wasting delays. It’s not unreasonable to assume that the Trump team wants nothing more than a plodding, snaillike pace that lessens any chance of the trial upending the former president’s quest for a second term.
Questions have been raised about Cannon’s skill set, more specifically, her meager track record for presiding over criminal trials. According to the New York Times, of the 224 criminal cases that have been sent Cannon’s way, only four went to trial: a tax fraud case, an assault on a prosecutor, a charge of gun possession by a felon and an undocumented migrants’ smuggling case. Those are relatively elementary cases compared with the complexities of trying a former president for allegedly mishandling classified documents and trying to obstruct the federal government’s attempts to retrieve those documents.
Nevertheless, that’s not a sound basis for recusal. We give the 42-year-old judge from the University of Michigan Law School the benefit of the doubt that she would carry out the necessary research to preside over subject matter that may, as of now, be foreign to her. She is equipped with law clerks to help her get up to speed, and during the proceedings, lawyers on both sides could, if needed, provide more legal context for their motions, objections and requests than they would for a judge with more experience in criminal trials.
But the scale of what’s at stake in this case factors heavily into whether Cannon should stay on.
Trump is the first former president to ever face federal indictment. The charges are gravely serious. The documents Trump allegedly refused to hand over include highly sensitive documents about America’s nuclear programs, its homeland vulnerabilities to foreign attacks and its plans for retaliatory strikes against foreign enemies.
And, prosecutors allege that Trump not only illegally retained those documents, he overtly tried to prevent federal agents from getting them back. Given the gravity of the charges, judicial impartiality shouldn’t just be an aspiration — it should be a non-negotiable baseline.
It’s worth repeating a touchstone phrase that the appellate panel used in its overturning of Cannon’s outside arbiter ruling last year: “... our law applies to all, without regard to numbers, wealth or rank.”
That’s at the core of this latest case against Trump. On too many occasions he has behaved as if he were above the law. Cannon, as the appellate panel ruled, created without any legal justification an exception for Trump to the rule of law.
The nation cannot afford to have Cannon make the same mistake in the pending criminal case against the former president. She should recuse herself.
