Regulatory authority calls for Judge Cannon to be removed from Trump secret documents case
When Special Counsel Jack Smith filed his appeal of U.S. District Judge Aileen Cannon’s dismissal of the classified documents case, he did not ask for her removal. But now a third party, the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), has filed that appeal with the 11th U.S. Circuit Court of Appeals.
CREW has good evidence to support its argument that Cannon should be fired because of her obvious bias. However, this may still be unlikely, even though the appeals court will most likely overturn the dismissal of the case.
CREW’s brief, filed Tuesday and joined by a former federal judge and judicial ethics experts, focuses on three areas:
(1) Judge Cannon’s unprecedented assertion of “equitable jurisdiction” to prevent the government from using or even viewing the documents seized at Mar-a-Lago pursuant to a lawful search warrant; (2) Judge Cannon’s inexplicable request for jury instructions based on a baseless defense that would have undermined the government’s case had it ever gone to trial; and (3) Judge Cannon’s failure over the course of a year to advance the case in any meaningful way—until a single justice in the Supreme Court’s ruling on presidential immunity expressed her approval of the novel constitutional theory that allowed her to dismiss the case.
I have highlighted these points before, and they do indeed reflect Cannon’s blatant favoritism toward the defendant who appointed her as judge. It would be better for justice to be served by a less biased jurist trying this historic case.
One of the challenges to Cannon’s dismissal, however, may be the context in which this appeal comes – namely, the context of her partial dismissal of the case, based in part on the reasoning of a sitting Supreme Court justice. As reported in CREW’s opinion, in the July 1 immunity decision, Justice Clarence Thomas had gone to particular lengths to write a separate opinion challenging the constitutionality of Smith’s appointment. “In just two weeks, Judge Cannon had written a 93-page decision abruptly dismissing the case based on the reasoning of that single concurrence.”
Of course, the 11th Circuit may dissent from Cannon (and by extension, from Thomas), but even in the likely event that it reverses her dismissal, it would still be inappropriate to use her endorsement of a judge’s opinion – however erroneous that opinion may be – as a reason to remove her from the case, however merited that dismissal may be.
Of course, we’ll have to wait and see how the court will rule on the actual facts of the case first, since the appeal has only just begun. We may not have an answer before Trump can retake the White House and throw the case out himself. Such a scenario would underscore the extent to which Cannon’s slow approach to the case helped Trump sink it without a trial. But that doesn’t help Smith much in the meantime.
There is also the larger question of how the Supreme Court would rule if the issue of Smith’s appointment goes before the high court. It may be necessary to resolve that issue before any of Trump’s federal cases can proceed (again, that is if he loses the presidential election and therefore does not gain the power to dismiss the cases).
While no other justice joined Thomas’s concurrence in the immunity case, Smith’s appointment was not the issue in that appeal, so we don’t know to what extent Thomas’ opinion is an outlier. But the fact that it’s an open question may further underscore the embarrassment of Cannon’s removal from the case, based in part on her supporting a Supreme Court justice’s opinion whose validity has not technically been resolved by the Supreme Court.
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