The Trump-appointed judge overseeing his classified documents case may be at risk of being removed from the case after special counsel Jack Smith pushed back on her recent order, legal experts say.
Smith earlier this week submitted hypothetical jury instructions in response to an order from U.S. District Judge Aileen Cannon asking for proposed jury instructions that seemed to give credence to Trump’s claim that the Presidential Records Act allowed him to deem government records as personal property. Smith said these instructions were based on a “fundamentally flawed legal premise” and that the PRA “has no bearing” on Trump’s charges under the Espionage Act.
Smith asked Cannon to rule quickly before the trial so that he could appeal if she rules against him. But some legal experts think the court may go further if it reaches that point.
“Smith spoon feeds the Judge the law, giving her the opportunity to get it right even at this late date. If she doesn't, expect the 11th [Circuit] to bench slap her when he appeals in a way that makes last year's decision look mild,” predicted former U.S. Attorney Joyce Vance.
If “this gets to the 11th Circuit, it will both reverse Cannon again — AND I think it will remove her from the case- 3 reversals is more than enough for this inexperienced judge, who gets the law wrong and always in Trump's favor,” agreed former Mueller prosecutor Andrew Weissmann.
Cannon is on “thin ice,” legal experts Norm Eisen, Danya Perry and Josh Colb wrote in a CNN op-ed.
“Cannon is headed for the most trouble she has faced since that 11th Circuit reversed her twice in her original meddling in the government’s pre-indictment investigation. If she does not course-correct, she’s headed for another shellacking by the circuit – and possible removal from the case,” they wrote, noting “we have never seen anything” like Cannon’s jury instructions order.
A judge can be removed in the 11th Circuit if their conduct creates “the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.”
“She still has time to rectify this — by, for example, abandoning these incorrect jury instructions or granting Smith’s motion to reconsider revealing witnesses’ identities,” the experts wrote. “But if she doesn’t, and clings to even a few of these wrong decisions, Smith would be entitled to seek the review he threatens by the circuit and her removal. Ejecting her from the case would be extremely unusual and Smith does not mention seeking it in his papers. But neither does he rule it out, and Cannon’s reasoning on the jury instructions and on exposing witnesses is lawless enough that, unless she reverses course, he may have no other choice.”
Former Trump White House lawyer Ty Cobb pushed back on legal commentators who have suggested that her “missteps” relate to her “experience or incompetence.”
“I think the evidence of her bias is pretty palpable at this stage of the game,” he told CNN on Wednesday, noting the 11th Circuit’s repeated rebukes of her rulings.
“Her delays here are extraordinary” and it is “remarkable” that Cannon has yet to set a trial date, he continued.
“I think that Jack Smith – I think the filing today makes it plain that she has to rule, and if she doesn’t rule under either scenario, they’ll be in a position to take her up to the 11th Circuit. And I think the 11th circuit will likely take her off the case,” he said.
“I think the evidence is just too overwhelming,” he added. “I mean, yes, she may be incompetent, but at this stage of the game, her incompetence is so gross that I think it clearly creates the perception of impartiality– of partiality, and her attempt to put her thumb on the scale. So, I think that should disqualify her.”
But CNN legal analyst Elie Honig said a push to get Cannon removed amid the delays could end up backfiring on Smith.
“That’s quite a drastic step. It is very rarely, not never, but very rarely taken by prosecutors. And there’s no assurance that they win,” he said. “But the sort of irony of all of this is if Jack Smith appeals this, and if Jack Smith asks the appeals court to remove Judge Cannon, that will delay this more than anything that’s happened so far."
