But Really, Just File a Motion to Recuse Already

I was willing, wrongly as it turns out, to give Judge Aileen Cannon the benefit of the doubt when she was assigned to be the judge on Trump’s first effort to attack the Mar-a-Lago prosecution. That happened before he was indicted, following the execution of the search warrant when his lawyers filed a completely unwarranted civil action to block DOJ from using evidence they had lawfully obtained. Cannon ruled on Trump’s behalf but was mercilessly bench-slapped by the Eleventh Circuit, reversing her not once but twice, before DOJ got its hands on all of the evidence and subsequently indicted Trump.

Every federal judge is appointed by a president from one party or another, and most of them go on to set aside the affiliations that got them there. But Cannon, at virtually every turn, has weighed in for Trump or against the government, despite what the law required. Judges make rulings lawyers disagree with in every case, but it’s rare for a judge to demonstrate such sustained, unmerited bias that they should be recused. Cannon, however, keeps ringing that bell. When she drew the criminal case after the Special Counsel’s office indicted the case in the Southern District of Florida, my view was that they needed to filed a motion asking her to recuse, immediately, based on the way she’d handled the earlier case.

Fox News took a dim view of my commentary on MSNBC in June of 2023 following the indictment, when I argued Judge Cannon should step aside or the Special Counsel should move for her recusal, given the reversal of her prior rulings in Trump’s favor that the 11th Circuit not only dismissed but resoundingly criticized.

There’s precedent for a recusal in that setting in the Eleventh Circuit. Although a judge's behavior in handling a case generally doesn't create a basis for recusal, it can if a judge leans so heavily for a defendant that it calls their objectivity in the eyes of the public into question. In a case I handled as a prosecutor, U.S. v. Martin, the court ordered the district judge to step aside even though he had no actual bias because of repeated reversals of his rulings. In light of two reversals, it was deemed “likely that ‘the original judge would have difficulty putting his previous views and findings aside.’" The Eleventh Circuit has the authority to order the chief judge in a district to reassign a case to another district judge on that court where it finds recusal is merited.

My view at the time was that Jack Smith should move to recuse Judge Cannon immediately, because of the risk that is now squarely in front of us. It’s the risk that Judge Cannon will actually let the case go to trial and then dismiss the charges against Trump or direct a verdict in his favor in a posture where the government is unable to appeal (because of double jeopardy) and the prosecution ends with Trump being acquitted. Filing a motion for recusal now would almost certainly mean the case can’t be tried ahead of the election because of the time it would take a new judge to get up to speed and the pendency of issues regarding the use of classified information. But it would be better to run the risk of delay than it would be to give Cannon the opportunity to derail the prosecution in a way that would give her the final say over the fate of the case. In the past week alone she’s given plenty of indication she could do just that—both when she invited the defense to revisit their motion to dismiss on the basis of “unconstitutional vagueness” of the statute Trump is charged with violating and when she asked the lawyers to submit jury instructions based on the assumption that the Presidential Records Act gives Trump an absolute defense. Both of those arguments are specious, but Judge Cannon continues to entertain them.

There’s plenty of evidence of Judge Cannon’s unwarranted animus towards the government scattered across the case, beyond the rulings that were reversed. For instance, in November of last year, prosecutors alerted Judge Cannon that Trump’s lawyers were playing both sides against the middle, asking her to delay his trial in front of her because it was too close in time to his trial in the District of Columbia, while at the same time, asking the Judge in D.C. to delay the trial there as well. You might have expected Judge Cannon to be upset with the defense about this, but she was not. Instead she lambasted the prosecution for alerting her to the situation. At the time I wrote, “Jack Smith may well regret toughing it out instead of seeking to recuse Cannon straight off the bat when he had the opportunity.”

A trial judge has ample opportunity to influence the outcome of a case. They make calls about what evidence is admissible at trial, and if a defendant is acquitted, there is no way for the government to object to those calls. Judge Cannon could, for instance, find there is merit to Trump’s argument that the search of Mar-a-Lago was invalid and refuse to let the government use any of the evidence they seized, effectively gutting the case. She could rule for Trump after all of the evidence was in, saying the government failed to prove one or more elements of its case. We rely on the neutrality of judges to keep the system on an even keel. They are supposed to be objective umpires. Fool me once, shame on you; fool me twice shame on me. I do not view Judge Cannon as a neutral arbiter in this case.

When the Eleventh Circuit ruled against Judge Cannon previously, they were sharply critical of the way she handled the case, going beyond the kind of reversal where the appellate court thinks the district judge got it wrong while acting in good faith. That’s the typical scenario in an appeal where the trial judge gets reversed. There are many close calls, and judges acting in good faith can disagree. But the tenor of the Eleventh Circuit’s opinion reversing Cannon was different, finding she lacked jurisdiction to consider Trump’s end run around the government’s search warrant and insinuating it was not a particularly close call. Judge Cannon’s decision was favorable to Trump by virtue of all but ignoring the law, refusing to apply it correctly, and rejecting the government’s position without explaining why. On its own it was the sort of extreme error that rises to the level of Martin, calling into question both whether the judge could set aside her previous views and whether a reasonable person would question her ability to handle the case fairly. In that ruling, Cannon acknowledged her decisions were “inherently impacted by the position formerly held by the plaintiff,” i.e., that he had been the president. Her subsequent rulings have done nothing to ameliorate the early concerns about her ability to handle the case fairly.

If the Special Counsel’s office files a motion to recuse and Judge Cannon declines to step aside, the rules require her to “issue a ruling on the record, stating the grounds for denying the request.” Jack Smith would be able to appeal. Yes, it would be late, but in this case, better late than never. Because the alternative will be an injustice.

Thank you for being here at Civil Discourse with me. I really appreciate all of your comments and thoughts and your commitment to democracy. You remind me on a daily basis that there are a lot of us who want to see this through, and I’m grateful.

We’re in this together,

Joyce