The 11th Circuit’s ruling was particularly dismissive in reversing Cannon: “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.” Specifically, the panel held she didn’t have jurisdiction and should not have ruled on the case.
To make matters worse, in the civil case, Cannon posited that Trump deserved special treatment because he is a former president (“[a]s a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own”). A judge who begins with the unconstitutional premise that Trump is not subject to the law like any other defendant would have a hard time sustaining public faith in the process. Any rulings for Trump would be regarded as evidence of bias; rulings against would be seen as efforts to restore her shattered reputation.
Because Cannon seemed to be leaning over backward and/or operating untethered to basic criminal procedure, some lawyers have questioned if she should recuse herself under the U.S. code that requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Legal scholars have pointed to precedent for recusal “if facts connected to the judge’s actions in the case would cause an objective observer to doubt the fairness of the proceedings,” as Norman L. Eisen, Richard W. Painter and Fred Wertheimer wrote in Slate.
Constitutional scholar Laurence H. Tribe told Newsweek: “Judge Cannon’s rulings in favor of Donald Trump’s motion to suspend the criminal investigation … including her appointment of a special master to undertake a review that had no basis in law, certainly fits that test by establishing a strong basis for questioning her impartiality, entirely apart from the aggravating factor that she was appointed to her lifetime position on the federal bench by defendant Donald Trump.”
Other legal scholars agree. (As Stephen Gillers put it, “Now, the fact that a judge’s impartiality might reasonably be questioned doesn’t mean that the judge is partial. The public may simply not trust the impartiality of the judge. Because public trust in the work of the court is a value as important as the work itself, the rule says that the judge should not sit when we can’t fairly ask the public to trust what the judge does.”)
It borders on absurd that an inexperienced judge appointed to the bench by the defendant to whom she threw lifeline would try the case after getting slammed by the circuit court for even touching his civil gambit. This might be the most important criminal trial in U.S. history, with enormous implications for democracy, the rule of law and national security.
A trial judge has immense discretion on everything from pretrial rulings excluding evidence to empaneling a juror to dragging out the proceedings. In the case of delay, Cannon could deny the American people a verdict in advance of the 2024 election. Some erroneous decisions might be reversed on appeal, but others (e.g. seating a juror who practices jury nullification) could be hard to correct on review. Moreover, the need for consistent intervention by the 11th Circuit could turn the case into a multiyear affair. None of this benefits the federal bench (specifically the 11th Circuit), the rule of law or the American people.
Moreover, as a practical matter, Cannon sits as the only judge in Florida’s Southern District from the Fort Pierce division. Taking up duties in Miami and presiding over a lengthy trial means that division would be deprived of a judge for long periods of time. That could pose an undue burden on litigants in that division.
Some could argue that having been rebuked once, Cannon might have been chastened. She could therefore be a judge who would give the Justice Department every chance to make its case. But the risk that a wildly misguided and slipshod judge could have reformed is far too great to entrust her with the most important criminal case in our lifetimes. She and the 11th Circuit owe both Trump and the American people an expertly run trial free from the appearance of bias.
