Critics of former President Trump groaned when they learned that Judge Aileen Cannon was listed on the summons for Trump’s appearance on Tuesday to face charges in federal court.
Cannon, a Trump appointee, made controversial rulings in Trump’s favor during the investigation into his personal possession of classified government documents. Some observers worried that Cannon was running Trump’s trial in a biased way.
But some other experts warned that Cannon would not necessarily preside over the trial, arguing that she would recuse herself or be reassigned by a higher court.
Who is Canon?
Trump appointed Cannon in 2020 to U.S. District Court for the Southern District of Florida — which includes Trump’s residence at Mar-a-Lago in Palm Beach, Florida, where he kept the documents. Prior to her appointment, she was a federal prosecutor in the U.S. Attorney’s Office for the Southern District of Florida.
She has been a member of the Federalist Society, an activist network of conservative lawyers and jurists, since attending law school at the University of Michigan.
Why was she chosen to oversee this trial?
Federal trial judges are usually randomly assigned, but Cannon had already been assigned last year to preside over Trump’s trial demanding a ‘special master’ in a bid to deny the FBI access to documents he seized. and which Trump claimed were subject to executive privilege.
“If the case is being overseen by the same district judges and magistrates, it means the court likely considered the indictment to be ‘related’ to the search warrant and intentionally assigned it to those judges,” said former Justice Department top national security official Brandon Van. Grack told ABC News.
“[Cannon’s] rulings on everything from procedural motions to Trump’s planned efforts to have the case dismissed before trial will have broad implications for how the case unfolds,” ABC News noted.
Why do many distrust her?
Cannon ruled in favor of Trump’s request for a special master — an independent arbitrator who would review the documents, many of which are classified — much to the dismay of former and current federal prosecutors from across the political spectrum.
“Paul Rosenzweig, a former George W. Bush administration homeland security official and prosecutor in the Bill Clinton Independent Counsel investigation, said it was blatant to block the Justice Department from take steps such as asking witnesses for government records, many marked as classified, that officers had previously reviewed,” the New York Times reported.
“It would strike me as a truly unprecedented decision by a judge,” Rosenzweig told The Times. “To enjoin the ongoing criminal investigation is simply untenable.”
“The opinion, I think, was wrong,” William Barr, who served as attorney general under Trump, told Fox News. “He is deeply flawed in several respects.”
Even the appointed special master Cannon said he was “perplexed” by Trump’s assertion of executive privilege over classified documents after leaving office.
Cannon’s decision was overturned by a unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit. Two of those appellate judges were also appointed by Trump. (The appeals court had already reversed Cannon’s refusal to grant a stay of decision while the appeal was pending, another Cannon decision that shocked legal experts.)
What happens next
The Washington Post has confirmed with multiple sources that Cannon was assigned to preside over the case, at least initially.
“Trial judges can affect the timing and form of cases in several ways,” the Post reported. “They can rule on motions to dismiss charges or the entire indictment, decide what evidence is admitted or excluded, and answer a host of other critical questions.”
Cannon’s decisions are subject to appeal. But the Post warned that “such litigation could add months of delays or may have to wait until after trial, extending the process until 2025 or longer.”
Some commentators believe Cannon will recuse herself or the Justice Department will successfully ask the appeals court to remove her from the trial.
“While a judge’s demeanor in court does not generally form the basis of a recusal, the 11th Circuit has ordered a ‘reassignment’ when a judge leans so heavily for a defendant that they question their objectivity in the public eye”, Joyce Alene, professor at the University of Alabama School of Law and legal analyst for NBC News, wrote on Twitter.
“It is a compelling authority that Judge Cannon must step aside if the matter falls to him as a permanent assignment. Her court and certainly the 11th will not tolerate the damage it would do to their credibility if she did not voluntarily recuse herself.