Judge Aileen Cannon (U.S. Senate Judiciary Committee), Donald Trump, (AP Photo/George Walker IV, File)
A federal judge with a well-documented recent history of erroneously blocking the feds from investigating the former president who appointed her has been assigned to preside over Donald Trump’s historic Mar-a-Lago prosecution, but there are ways under existing federal statute and 11th Circuit precedent for her to remove herself or otherwise be removed from the case.
How we got here
After news of Trump’s indictment dropped last Friday, U.S. District Judge Aileen Cannon’s assignment to the case became the subject of discussion online and in various reports, particularly as to whether and how the judge could be made to exit the case. Legal eagles promptly called attention to Cannon’s rubbished appointment of a special master and her overruled injunction in Trump’s Mar-a-Lago civil case, stylized last August as a Motion for Judicial Oversight and additional relief.
When all was said and done, a conservative panel of judges on the U.S. Court of Appeals for the 11th Circuit roundly rejected Cannon’s decision to claim jurisdiction over the matter. The appellate court permitted the government to resume its probe of seized materials and ended the special master’s brief appointment.
“This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no,” the court’s opinion began.
The 11th Circuit concluded that Judge Cannon “improperly” gave the former president special treatment.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations,” the appellate court ruled last December. “And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.”
Recusal
Although judges can recuse themselves sua sponte (or on their own motion), typically litigants will bring a motion to disqualify under 28 U.S.C. § 455(a), a federal statute which says that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The argument here would be that Judge Cannon’s ruling in the civil matter blocking the investigation was so egregiously wrong — having been universally rejected by the conservative 11th Circuit panel and legal scholars far and wide — that it would be reasonable for an observer to question her ability to fairly act as trial judge in the criminal case.
In any theoretical motion from to disqualify Cannon, the government cannot simply focus on the fact that Trump appointed her, as illustrated by Trump’s failed RICO lawsuit against Hillary Clinton. In that case, Trump moved to disqualify the judge because the judge was appointed by Bill Clinton. The judge, noting that he had never met the Clintons, explained why the former president’s disqualification argument failed:
The law is well settled that appointment to the bench by a litigant, without more, will not “create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that [the judge’s] ability to carry out judicial responsibilities with integrity, impartiality, and competence [would be] impaired.” In re Executive Office of the President, 215 F.3d 25, 25 (D.C. Cir. 2000) (quoting Code of Conduct for United States Judges Canon 24 cmt., reprinting in 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, ch. 1 at 1-2, 1-3); see also Straw v. United States, 4 F.4th 1358, 1362 (Fed. Cir. 2021) (“There is no support whatsoever for the contention that a judge can be disqualified based simply on the identity of the President who appointed him.”); MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998) (“Nor should one charge that a judge is not impartial solely because an attorney is embroiled in a controversy with the administration that appointed the judge. Judges generally have political backgrounds to one degree or another but must be presumed, absent more, to be impartial.”).
Another federal judge in Florida walked through the recusal statute and its application when recently denying Gov. Ron DeSantis’ (R) bid to disqualify him from presiding over high-profile Disney litigation. The DeSantis motion cited the Barack Obama appointee’s remarks in two other cases where “the Court sua sponte offered ‘Disney’ as an example of state retaliation.” But U.S. District Judge Mark E. Walker called the disqualification effort “meritless” and “rank judge-shopping.” The judge agreed to step aside only because of a separate issue he raised on his own: A “third degree” relative had 30 shares of Disney stock.
“Although Defendant’s motion to disqualify is without merit, I must consider a separate question of whether I should disqualify myself. On Friday, May 26, 2023, I learned, and later confirmed, that a relative within the third degree of relationship owns thirty shares of stock in Plaintiff’s parent corporation, The Walt Disney Company,” Walker wrote. “Upon learning this information, I became obligated to engage in a separate inquiry pursuant to the Code of Conduct for United States Judges to determine if the financial interest of my third-degree relative ‘could be substantially affected by the outcome of [this] proceeding.””
Walker decided to “err on the side of caution” and removed himself from the case.
“Even though I believe it is highly unlikely that these proceedings will have a substantial effect on The Walt Disney Company, I choose to err on the side of caution—which, here, is also the side of judicial integrity—and disqualify myself. Maintaining public trust in the judiciary is paramount, perhaps now more than ever in the history of our Republic,” the judge wrote.
Reassignment
11th Circuit precedent does include a way for Cannon to be reassigned from the case, as noted by both MSNBC legal analyst Joyce White Vance and attorney Norm Eisen.
Vance, a former U.S. Attorney for the Northern District of Alabama, said she “litigated a few appeals” in the 11th Circuit “where we asked the court of appeals to order a judge to recuse.”
“Altho 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,” Vance said, pointing to U.S. v. Martin.
In that case, the court considered “whether to reassign a case to a different judge where there is no indication of actual bias” but where there is an indication of repeated error.
“[W]e have determined it wiser to remand this case with instructions to reassign it to a different judge. This is the second appeal in Martin’s case and the second time we have had to reverse the sentence that the district court gave Martin. On remand, the district court changed its sentence from 60 months’ probation to only 7 days’ imprisonment and failed to properly take into account the § 3553(a) factors,” the court found. “In light of the two reversals in this case and three other appeals in which we have reversed the same judge for extraordinary downward departures that were without a valid basis in the record, we find it likely that ‘the original judge would have difficulty putting his previous views and findings aside.’”
The 11th Circuit noted its “settled practice” in such circumstances “is to direct a specific judge to reassign a case,” usually the chief judge so long as that judge wasn’t the one originally assigned the case.
Cecilia M. Altonaga is chief judge in the Southern District of Florida.
What will the special counsel do?
If Judge Cannon does not step aside on her own, it’s up to Special Counsel Jack Smith’s office to decide whether seeking her disqualification from the Mar-a-Lago case is worth the trouble that any motion of the kind will invite.
An argument can be made that keeping Cannon in place would help the prosecution in one way: The former president would not be able to use his megaphone to credibly complain about judicial bias. On the other hand, prosecutors may be wary of how potential Cannon rulings in Trump’s favor would impact their case in the future, considering she once credited Trump’s privilege claims and enjoined the feds from reviewing materials lawfully seized via search warrant from Mar-a-Lago.
For Norm Eisen, the DOJ is more likely to react to a “major” Cannon misfire than it is to preemptively seek her disqualification.
“Much more likely: DOJ plays it safe, waiting for a major misstep by Judge Cannon, appealing that & seeking reassignment based on the pattern of apparent bias. The key 11th circuit precedent here is U.S. v. Torkington, 874 F.2d 1441 (11th Cir. 1989),” Eisen said, referring to 11th Circuit precedent also cited in U.S. v. Martin.
Trump’s arraignment
Trump is set to be arraigned Tuesday at 3 p.m. on 37 felony charges in Miami, Florida. While Judge Cannon is the presiding judge assigned to the case, U.S. Magistrate Judge Bruce Reinhart, who memorably signed off on the Mar-a-Lago search last year, remains on the case to potentially assist with the arraignment or other issues that may arise.
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