If DOJ Is Trump's Law Firm, Aileen Cannon Is His Judge

South District of Florida federal Judge Aileen Cannon has history with Donald Trump. He appointed her to the bench in May 2020. She was confirmed that November. Then came the June 2023 indictment of Trump by federal prosecutors. It landed on her desk.

Some judges would have recused. There is no precedent, because no former president had been indicted previously. But a reasonable jurist might have thought that the public wouldn’t have confidence in the objectivity of a judge sitting on a criminal case against the president who appointed her. It would have been the safe bet for someone concerned about the integrity of the judicial branch of government. Judge Cannon did not recuse.

To be fair, the government didn’t ask her to. That turned out to be a miscalculation.

From the earliest moments of the case, even before it was indicted, Cannon’s decisions were questionable. Mar-a-Lago was searched on August 8, 2022, well before Trump’s indictment and Jack Smith’s appointment as special counsel. Cannon was asked to consider the unusual motion Trump’s lawyers filed to restrict the Justice Department’s ability to use evidence seized during the search. It was an attempt to impose an unprecedented (back when that word still had meaning) constraint on the government’s ability to investigate a criminal case.

But Cannon agreed with Trump’s position, assigning a special master to review seized documents. Her decision dramatically slowed the progress prosecutors were able to make. On December 1, shortly after Jack Smith’s appointment in November, the Eleventh Circuit Court of Appeals reversed Cannon. The per curiam order did not mince words: “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 manifestly unmeritorious decision she made in Trump’s favor pre-indictment was a harbinger of everything that was to come. The case was indicted on June 8, 2023. There is no way to know how much the loss of four months in giving prosecutors full access to the evidence against Trump contributed to the ultimate demise of the case, which was dismissed without going to trial on Smith’s own motion, once Trump was reelected.

Once Trump and his co-defendants were charged, Judge Cannon ruled in their favor at virtually every opportunity. She ruled for them on pretrial motions, like this one, after delaying. She rejected a request by prosecutors, a fairly routine one, to protect witness identities pre-trial. A timeline of her rulings and the delays they engendered is set out at length in this ABC report. Ultimately, Smith’s request to dismiss the case went to the Eleventh Circuit because Cannon had dismissed the prosecution in July 2024, accepting the highly questionable defense theory that Jack Smith’s appointment was unlawful. That decision was on appeal when Trump was elected.

We discussed Cannon’s decision in this post, where I noted that “Until today, every federal judge that considered the issue—all eight of them—unanimously found that attorneys general have the constitutional authority to appoint a special counsel. But Judge Aileen Cannon disagrees. In a 93-page opinion, nicely timed for the first day of the Republican convention … she dismissed the entire indictment.”

But pursuant to DOJ rules that prohibit the prosecution of a sitting president, Smith had little choice but to ask the Eleventh Circuit to dismiss the case as to Trump. When he did so, he wrote: “This outcome is not based on the merits or strength of the case against the defendant.”

That catches us up, more or less, to what happened today, when Judge Cannon ruled on what she characterizes as two “unopposed” motions, one by Trump, one by his co-defendants, both designed to prevent release of Volume II of Jack Smith’s special counsel report, the one covering the Mar-a-Lago case. If it weren’t such a serious matter, “unopposed” would be funny—these motions preventing the routine release of a special counsel’s report are only unopposed because the Attorney General, who should have filed an opposition, lives in Trump’s hip pocket. Cannon has managed to hold up the release of Volume II for over a year at this point.

In December, I wrote to you that Judge Cannon was “doing everything she can to prevent the release of Volume II of Jack Smith’s report for as long as possible.” Back on Inauguration Day, she issued an order blocking the Justice Department from sharing the report with leaders of the House and Senate Judiciary committees, who were set to receive it in accordance with the typical practice after a special counsel concludes their work. And because DOJ is on Trump’s side, no one challenged it. Then, two groups of journalists, American Oversight and the Knight First Amendment Institute, asked to intervene so they could advocate for the release of Volume II. Even after their motion was fully briefed, Judge Cannon refused to rule on it—for months. On November 3, an Eleventh Circuit panel gave Cannon 60 days to rule, finding that the parties had “established undue delay in resolution of their motions to intervene.” That language might sound benign, but it’s a sharp criticism when an appellate court says that about a district judge. She denied the request to intervene in December; that ruling is currently on appeal.

Just before Christmas, with that 60-day deadline looming, Judge Cannon entered an order giving the government until February 24, 2026, to release the report. But we noted at the time there would undoubtedly be another effort to drag the matter out further. It came in the form of a January motion filed by Trump in his “individual capacity” asking her to issue “an order prohibiting the release of Volume II of the Final Report prepared by so-called ‘Special Counsel’ Jack Smith and his office.”

Knight and American Oversight went back to the Eleventh Circuit seeking an order from that court that would require Judge Cannon to stay all proceedings on the Trump defendants motions until the Eleventh Circuit decides whether they can intervene in the case, essentially stepping into the role of the Justice Department and representing the interests of the American people. That case, which we touched on last night, is being briefed. Oral argument isn’t set until June.

So what did Judge Cannon do? This morning, she went ahead and ruled—unsurprisingly, in Trump’s favor.

Throughout her opinion, which you can read here, she assumes, as though there can be no dispute, that since she had ruled the special counsel’s appointment was contrary to law, the report shouldn’t be released. She ignores the fact that every other judge to consider the constitutionality of special counsel appointments ruled the other way—she’s alone on this one. And she continuously refers to “unopposed” motions as though that is some sort of virtue, instead of the reality we now live with of a Justice Department that does the president’s bidding, not the people’s.

It’s likely there will be an appeal. But that won’t come from Trump’s law firm, formerly known as the Justice Department. More than likely, the American Oversight and Knight potential intervenors will try to raise it in the course of their preexisting appeal. Judge Cannon reasserted, in a separate order today, that they could not intervene in the case.

The procedural history is convoluted. And I almost hesitate to inflict it on you. But it’s important because we cannot afford to forget that, no matter his reelection, Donald Trump was charged in two federal criminal cases, and those charges were never heard by a jury. In the Mar-a-Lago case, the Trump-appointed judge who handled the matter essentially refused to let it go to trial, with a series of highly questionable rulings and a healthy dose of delay. In other words, if there was a way for Judge Cannon to rule for Trump and against public disclosure, she took it at every turn, up to and including today.

Many people believe Volume II is unlikely to contain information beyond what was revealed in the detailed speaking indictment brought by the government. But Trump has fought long and hard to keep it out of public view, which has led to speculation about whether it might include new information, for instance, about his motives for keeping classified material after he left the White House and what, if anything, was done with it. For now, we don’t know the answer. But it’s hard to miss the glaring similarity to the Epstein Files, where it increasingly appears attempts to avoid disclosure were meant to protect wealthy, powerful people. Why not just release Volume II if Trump, as he says, is innocent? You’d think that might help him prove his “case” and set the matter aside for once and for all. But that is not the path he has taken.

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We’re in this together,

Joyce