On Monday, June 12, 2023, Slate reports that Judge Aileen Cannon’s previous rulings about former president Donald Trump demands her recusal from overseeing Trump’s 37 counts of federal criminal charges that include willful retention of national defense information under the Espionage Act, conspiracy to obstruct justice, concealing documents, and false statements.
Judge Cannon presided over Trump’s challenge to the government’s investigation into classified documents. She appointed a special master to examine the records and temporarily prevented the Justice Department from utilizing them in their investigation. This decision, which received significant criticism, was later overturned by a three-judge panel from the U.S. Court of Appeals for the 11th Circuit. The panel, consisting of three conservative judges including two appointed by Trump and Chief Judge William Pryor appointed by G.W. Bush, stated that Judge Cannon’s ruling disregarded established law and proposed a significant alteration to the legal framework that would exceed the federal courts’ role in criminal investigations and infringe upon fundamental separation-of-powers principles.
According to the report, given that the investigation has now led to an indictment against Trump, Judge Cannon’s previous and fundamentally flawed approach casts a cloud of uncertainty over the proceedings. Her handling of the case deviated significantly from the established judicial norms and was heavily criticized by the Court of Appeals. As a result, it is reasonable for impartial observers of the case to raise concerns about her ability to remain impartial. Fortunately, federal law offers a remedy for such circumstances. According to 28 U.S.C. § 455(a), a judge is required to disqualify themselves in any proceeding where there is a reasonable basis to question their impartiality. Judge Cannon’s situation clearly aligns with this standard, and she has an obligation to recuse herself from Trump’s case.
In relation to this, a report by the Los Angeles Times stated five areas in which Judge Cannon could cause terrible mischief for prosecutors. The first is on timing, wherein the assignment of Judge Cannon raises concerns that she may entertain Trump’s well-known strategies to delay the trial, potentially resulting in a postponement until after the 2024 election. Such an outcome would greatly undermine voters, who have a right to know the truth about Trump’s guilt or innocence before they exercise their voting rights. The report states that it would be a significant injustice to withhold this information from the electorate as they make their decisions at the ballot box. Secondly, in the jury selection, given her demonstrated sympathies for the former president, Cannon could end up seating ardent Trump supporters whom other judges would strike, leading to a hung jury. Third, on evidentiary rulings, the judge could make any number of evidentiary rulings that would make the conviction a steeper climb. Fourth, judges have considerable leeway in guiding the jury’s deliberations.
Similar to evidentiary matters, if an erroneous ruling by the judge results in an acquittal, it cannot be reconsidered due to double jeopardy protections, which prohibit a retrial. Lastly, in the event that Cannon refuses to restrain Trump’s inflammatory rhetoric, there is a risk that it could bias the potential jury pool, jeopardize the safety of government and court personnel, and introduce disruptive elements into a trial that requires a sense of dignity and order.
For these reasons, recusal becomes imperative in order to address significant apprehensions regarding Judge Cannon’s impartiality in the eyes of the public. The recusal rule in the judicial system aims to maintain public trust and confidence, without requiring a demonstration of actual bias. According to the Supreme Court, it simply evaluates whether an “objective observer” from the public would question the judge’s impartiality. In the case of Judge Cannon, it is evident that such doubts would arise. The subjective belief of the judge regarding their impartiality is irrelevant. The statute intends to ensure both justice and the perception of justice, necessitating the recusal of a federal judge if the facts surrounding the judge’s actions in the case would cause an objective observer to question the fairness of the proceedings. Several aspects of this case clearly indicate that the public will hold genuine concerns regarding the fairness of the proceedings and Judge Cannon’s impartiality, surpassing the standard of an objective observer.
The report cleared out that its concern does not stem from Judge Cannon being appointed by Trump. The conflict of interest arises from her prior issuance of exceptional and fundamentally incorrect rulings that favored the defendant in a particular case. These decisions have faced severe criticism and have been overturned, even by judges who align with conservative or Trump-appointed ideologies. Furthermore, judges sometimes consider practical downsides when contemplating recusal. However, in this instance, there are no such drawbacks to assigning another judge to oversee Trump’s case. The proceedings are still in an early stage, and the majority of pretrial motions, discovery, and hearings, which are likely to be extensive, are yet to take place. Therefore, a transition to a different judge would not entail significant practical costs.