With Donald Trump’s arraignment concluded, scrutiny of the legal proceedings in the former president’s classified documents case switches to the status of its assigned judge – his own appointee to the federal court bench, Aileen Cannon.
Analysts have already raised concerns about the impartiality of the inexperienced jurist, seemingly plucked at random to handle arguably the most explosive case ever to be tried in the southern district of Florida.
Her favorable rulings for Trump last year at an earlier stage, including a subsequently overturned decision to appoint a special master to review the documents and flawed assertion he enjoyed special treatment under the law, would appear to give justice department prosecutors grounds for filing a motion for Cannon to recuse herself.
Yet that might not be their best option, some legal experts say, because it could backfire if Cannon remains on the case.
Better, they say, for the justice department special counsel Jack Smith to sidestep the dilemma, in the immediate term at least, to see if Cecilia Altonaga, the district’s chief judge, reassigns the case on administrative grounds.
“It’s very delicate for the justice department, as you might expect, to ask the judge who is going to be ruling on its prosecution to recuse herself at this early date. And it just may be so awkward that the department feels it can’t do that yet,” said Carl Tobias, Williams professor of law at the University of Richmond.
“Whoever the judge is will have wide-ranging power and discretion, and you don’t want them already to be uncomfortable with your case. The judge can rule on defense motions to dismiss the case before it is tried, and specific arguments for dismissal, like prosecutorial misconduct, targeting Trump over classified documents but not Joe Biden, Mike Pence or Hillary Clinton, or the crime fraud exception, which allows Trump lawyers to testify against him.”
Tobias said many case watchers don’t believe the prosecutorial misconduct allegations are particularly strong, or true, “but that doesn’t mean those motions couldn’t be made and take time to breathe”, he said.
“There’ll be plenty of opportunities for the judge to rule on procedural motions that are non-appealable during the trial and slow the case down. And Trump and his lawyers would want to string this out as long as possible, at least until after the primaries and general election.”
Altonaga has discretion to reassign the case to any of the 24 other judges in her district, and there would seem to be solid reasons for doing so.
Cannon, 42, is the only one in chambers at the district’s northernmost “outpost”, the smaller Alto Lee Adams Sr courthouse in Fort Pierce, and having her relocate to Miami for what promises to be a lengthy trial might create more upheaval than a simple reassignment.
“The chief judge has the authority to do that out of concern about the appearance for justice, and on a purely administrative basis,” Tobias said.
“There are practical reasons why that may make sense because the DoJ filed in Miami, not Fort Pierce. It would lessen any kind of embarrassment or anything of that sort, the option seems to me to be less loaded, less risky, and may be the best approach.”
No date is yet set for the next hearing, so Smith and his team have time to figure out whether to seek Cannon’s recusal or await developments. Other than a brief statement at a 9 June press conference declaring he would be seeking “a speedy trial”, Smith has remained silent on the legal aspects of the case.
Neither has Cannon made any indication if she would consider standing aside. Until now, her only involvement following the unsealing of the 37-count indictment last week has been her name appearing on the document’s first page alongside magistrate judge Bruce Reinhart.
Tuesday’s arraignment was heard by neither, and was instead handled by magistrate judge Jonathan Goodman.
