The hearing on whether Donald Trump should be allowed to continue falsely claiming that FBI agents had orders to kill him came a day earlier than initially expected. But a day earlier was still a full month after special counsel Jack Smith had first raised the prospect of modifying the former president’s bail conditions, as good an indication as any of how U.S. District Judge Aileen Cannon views the prosecution’s claim that Trump’s speech poses an imminent threat to law enforcement.
“I don’t appreciate your tone,” Cannon said Monday, scolding government attorney David Harbach when, per NBC News, he got frustrated at the judge’s insistence that the court had already done enough to protect the lives of FBI agents — who a Trump supporter earlier this month allegedly threatened to “slaughter” — by redacting their names from court documents. When Harbach said Cannon should not “wait for tragedy to strike,” she challenged the connection between Trump’s rhetoric and the actions of his followers, saying prosecutors still needed to show an “actual connection between A and B.”
“To suggest there’s not a cause and effect I think is really to ignore what several years now have shown us,” former federal prosecutor Mary McCord told MSNBC, noting also that the names of the FBI agents who raided Mar-a-Lago and confiscated Trump’s stash of national security secrets have already been leaked. “Somebody who is determined can certainly find out the identity of these agents.”
It’s not the first time Cannon has reacted poorly to a prosecutor explaining basic facts to her. Harbach, in particular, is a repeat offender. At a hearing in May, Cannon told him to “calm down” after he grew frustrated with the judge for failing to grasp the legal argument he was making, forcing him to make it over and over again; on another occasion, she accused him of “wasting the court’s time” for making a legal argument in court that was not also included in one of his briefs (The New York Times noted that Trump’s defense has done the same without comment, “let alone rebuke”).
That Cannon, appointed by Trump after he lost the 2020 election but before he incited the January 6 insurrection, might be biased in favor of the defense is evidenced in more than just her courtroom exchanges. More than a year after she was randomly assigned the case, and declined entreaties to step aside, she has indeed wasted the court’s time on arguments deemed frivolous by just about every lawyer who doesn’t work for the presumptive Republican nominee.
Before she ever got to the special counsel’s concerns about law enforcement, Cannon scheduled two days of oral arguments on the question of whether a special counsel can even exist — a question considered settled by other courts. Just Security’s Adam Klasfeld noted she made a “blockbuster remark” on Monday, just hours before the hearing on Trump’s bail conditions, questioning whether Smith’s “limitless” funding makes his position unconstitutional.
“What’s more, the judge signaled a willingness to consider that challenge seriously by allowing third parties to weigh in on the matter,” Klasfeld wrote, referring to Cannon’s highly irregular decision to let outside, right-wing attorneys make the argument against Smith, in court, on Trump’s behalf.
The dueling hearings — one that shouldn’t have happened, one that should have happened weeks ago — neatly distill the argument against Cannon and her handling of a case, the most straightforward of all those against Trump, that still has no trial date.
Former federal prosecutor Kristy Greenberg said it was “frankly laughable” that Cannon, in the hearing over whether to gag Trump or not, questioned whether there’s actually a connection between the accused’s rhetoric and their supporters’ actions.
“Clearly she doesn’t see an imminent threat because she didn’t deal with it right away, she sat on it,” Greenberg said. At one point Monday, she even objected to the prosecution highlighting threats by Trump supporters against those involved in the former president's other legal proceedings, exclaiming: "Are you suggesting I pull facts from other cases? Because that's not going to happen."
Instead of chastising prosecutors, who rightly believe that Trump’s words (and claims of an attempted assassination) matter, a proper judge would be reminding the criminal defendant that they shouldn’t lie about law enforcement officials involved in the case against them.
Trump “knows the effect that he has, and we know the effect that he has, and so does Judge Cannon,” Greenberg said. “Any other judge would be scolding a criminal defendant for making statements like this.”
It’s not just that Cannon appears at times inept, her handling of matters slightly unusual; it’s that her ineptness and weird rulings always seem to favor one side.
“It’s not like she’s inexperienced and sometimes gets it right for Trump and sometimes she gets its right or wrong for the government,” Andrew Weissmann, an attorney who worked for special counsel Robert Mueller, said Monday. “They’re always siding with Donald Trump and it’s very, very hard at this point to see her as being anything other than partisan.”
