Eisen, Painter, Wertheimer: Aileen Cannon’s Previous Rulings About Trump Demand Her Recusal In Docs Case
Judge Aileen Cannon, the judge assigned last week to oversee the government’s case against former President Donald Trump regarding his possession and refusal to return classified government documents, “should do the ethical thing and recuse herself,” Amb. Norman Eisen (ret.), Richard Painter, and Fred Wertheimer write in an op-ed published today on Slate.
Eisen served as White House “ethics czar” for the Obama Administration (2009-2011). Painter served as White House “ethics czar” for the George W. Bush Administration (2005-2007). Wertheimer is the President of Democracy 21.
Last fall, Judge Cannon heard Trump’s challenge to the government’s classified documents investigation, appointed a special master to review the documents, and temporarily barred the Justice Department from using those records in its investigation.
“Judge Cannon’s prior, fundamentally erroneous approach casts a shadow over the proceedings,” Eisen, Painter, and Wertheimer write. “In our view as experts with more than a century of collective experience in judicial and other ethics questions, that cannot stand. She must recuse herself from the case or, if she refuses, be reassigned by the appropriate judicial oversight authorities.”
Cannon’s much-maligned decision last fall was later reversed by a three-judge panel of the U.S. Court of Appeals for the 11th Circuit consisting of three conservative judges: two Trump appointees and the G. W. Bush appointed Chief Judge. The judges wrote in their opinion that Cannon’s decision violated “clear” law and that her approach “would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations” and “violate bedrock separation-of-powers limitations.”
“Because her earlier handling of this case went well outside the judicial norm and was roundly criticized by the Court of Appeals, reasonable observers of this case could question her impartiality,” Eisen, Painter, and Wertheimer write. Federal law has a way to deal with this challenge: under 28 U.S.C. § 455(a), a judge ‘shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.’ Judge Cannon’s situation clearly fits that test, and she is obligated to recuse herself in Trump’s case.”
The authors continue: “To be clear, our concern is not that Judge Cannon is a Trump appointee. The conflict of interest is that she has already issued unusual and profoundly wrong decisions favoring the defendant in this case that have been severely criticized and overturned, again by conservative or Trump-appointed judges.”
There are several features of the Trump case, the authors write, that make it clear that the public “will harbor serious concerns about the fairness of the proceedings and Judge Cannon’s impartiality.”
The authors discuss Judge Cannon’s deeply erroneous step last fall of ordering federal prosecutors to refrain from using the materials seized from Mar-a-Lago in their investigation, her statements and actions in the prior proceedings that made clear her view that Trump is entitled to differential treatment than any other criminal defendant, and her repeated series of decisions that were harshly criticized by the appellate authorities as far outside the law, a pattern that leads to the appearance of bias.
Judge Cannon’s prior erroneous rulings, the authors write, “had to do with the treatment of classified documents, and she had to be schooled by the DOJ and then 11th Circuit on her cavalier attitude. These decisions are directly related to the current charges.”
The authors discuss options that the chief judge of the District Court or the 11th Circuit Court can undertake to reassign the case if Cannon does not recuse herself. “DOJ should be watchful for the first opportunity to seek reassignment by the 11th Circuit,” the authors write.
According to the authors: “Under binding 11th Circuit precedents a case should be reassigned to a different judge if, among other reasons, the original judge would have ‘difficulty’ setting aside her previous views and findings and reassignment would not result in a waste of judicial resources. Those factors clearly weigh in favor of reassignment here, due to the difficulties that Judge Cannon will likely face in diverging from her previous, unorthodox, and wrongful rulings benefitting Trump.
“If seeking reassignment by the 11th Circuit is the outcome here, that will require a bit of patience by all of us. Still, if the special master case is any indication, we should not have a long wait for an erroneous decision by Judge Cannon (although we would be pleased to be proven wrong).”
Eisen, Painter, and Wertheimer note that the “reputation of the 11th Circuit and the ability of their judges, both trial and appellate, to handle sensitive cases with an absence of bias are at stake here. So is the public’s confidence in the outcome of one of the most important criminal trials in the history of our republic. Not to mention the American people’s faith in the entire criminal justice system.”
Ultimately, the authors write, “a failure to recuse or reassign could well do great damage to the core American principle that no one — not even a former President — is above the law.”
Read the op-ed on Slate or below.
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Slate | 6/12/2023
How to Force Judge Aileen Cannon Off the Trump Case
By Norman L. Eisen, Richard W. Painter, And Fred Wertheimer
Soon after the news broke that Donald Trump will become the first former president to face federal criminal charges—37 counts that include willful retention of national defense information under the Espionage Act, conspiracy to obstruct justice, concealing documents, and false statements—it was also revealed that Judge Aileen Cannon is scheduled to oversee the case. In our view as experts with more than a century of collective experience in judicial and other ethics questions, that cannot stand. She must recuse herself from the case or, if she refuses, be reassigned by the appropriate judicial oversight authorities.
Her name may be familiar to many. Judge Cannon heard Trump’s challenge to the government’s classified-documents investigation, appointed a special master to review the documents, and temporarily barred the Justice Department from using those records in its investigation. That much-maligned decision was later reversed by a three-judge panel of the U.S. Court of Appeals for the 11th Circuit consisting of three conservative judges: two Trump appointees and the G. W. Bush appointed Chief Judge William Pryor. They wrote that her decision violated “clear” law and that her approach “would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations” and “violate bedrock separation-of-powers limitations.”
Now that the same investigation has resulted in an indictment against Trump, Judge Cannon’s prior, fundamentally erroneous approach casts a shadow over the proceedings. Because her earlier handling of this case went well outside the judicial norm and was roundly criticized by the Court of Appeals, reasonable observers of this case could question her impartiality. Federal law has a way to deal with this challenge: under 28 U.S.C. § 455(a), a judge “shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.” Judge Cannon’s situation clearly fits that test, and she is obligated to recuse herself in Trump’s case.
Recusal is necessary here to avoid serious concerns about Judge Cannon’s impartiality in the public eye. The judicial recusal rule is about preserving the public’s confidence in the judicial system; it does not require a showing of actual bias. Rather, as the Supreme Court has explained, it simply asks whether “an objective observer” in the public “would have questioned [the judge’s] impartiality.” That is clearly the case with Judge Cannon. It is irrelevant whether a judge subjectively believes herself to be impartial. Because the statute aims at ensuring both justice and “the appearance of justice,” a federal judge must recuse if facts connected to the judge’s actions in the case would cause an objective observer to doubt the fairness of the proceedings.
Several features of this case make it clear that members of the public will harbor serious concerns about the fairness of the proceedings and Judge Cannon’s impartiality, well beyond the objective observer standard.
First, it is common knowledge that Judge Cannon already took the deeply erroneous step of ordering federal prosecutors to refrain from using the materials seized from Mar-a-Lago in their investigation, when she appointed a special master to review whether these materials were subject to executive or attorney-client privilege. The charges here are the direct result of the investigation her order temporarily halted.
Second, Judge Cannon’s other statements and actions in the prior proceedings made clear her view that Trump is entitled to differential treatment than any other criminal defendant. She wrote that “[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.” She reiterated this position in denying the government’s motion for a partial stay of her order pending appeal, stating that her consideration “is inherently impacted by the position formerly held by [Trump].” After the 11th Circuit rejected her position and granted a partial stay to allow the government to use classified materials and remove them from the special master’s review, she still ruled for Trump on procedural issues over the views of the special master she appointed. As the ultra-conservative panel of the 11th Circuit forcefully explained when finally dismissing Trump’s civil action in its entirety, it was Judge Cannon’s attempt to “carve out an unprecedented exception in our law for former presidents” that was in a league of its own.
Third, federal courts have explained in related contexts that prior reversals of a judge’s decisions in a case can support the conclusions that the judge “would have difficulty putting [her] previous views and findings aside,” and that another judge taking the case would be “appropriate to preserve the appearance of justice.” Here, Judge Cannon has issued a repeated series of decisions that were harshly criticized by the appellate authorities as far outside the law. That is a pattern that leads to the ineluctable appearance of bias.
Notably, the prior erroneous rulings had to do with the treatment of classified documents, and she had to be schooled by the DOJ and then 11th Circuit on her cavalier attitude. These decisions are directly related to the current charges. And she will have to deal with those issues constantly, including under the Classified Information Procedures Act (CIPA), the complex statute governing how a court deals with the intricacies of a criminal prosecution involving classified information. Add all this on top of the fact that she is the only judge in her division of Fort Pierce and that, for security reasons, the U.S. Marshal with likely insist the case be tried in Miami where the arraignment will occur, there are also substantial logistical reasons for her to step aside. That provides Judge Cannon with an elegant exit opportunity, should she choose to take it, without having to even address the significant conflict issues.
To be clear, our concern is not that Judge Cannon is a Trump appointee. The conflict of interest is that she has already issued unusual and profoundly wrong decisions favoring the defendant in this case that have been severely criticized and overturned, again by conservative or Trump-appointed judges.
Yet another dimension of recusal that judges sometimes consider is whether it would have practical downsides. But there are no such costs here to another judge overseeing Trump’s case. The proceeding is still in a nascent stage, and the bulk of pretrial motions, discovery, and hearings—which will likely be extensive—have yet to occur.
But what if Judge Cannon does not recuse herself? One possibility that should be explored is for the chief judge of the district court, Chief Judge Cecilia Altonaga, to reassign the case pursuant to the court’s power under federal law to “assign [ ] cases so far as [local] rules and orders do not otherwise prescribe.” Nothing in the Southern District of Florida’s local rules or Internal Operating Procedures is to the contrary. Those local procedures provide for Judge Cannon and her colleagues to agree to transfer the case to another judge. The chief judge should have a vigorous discussion with her under that provision. If Judge Cannon demurs, though, the rules are silent about what happens next and so the federal statute comes into play for the chief judge to reassign the case. She too can point to logistical concerns, including the security ones, in reassigning it to a judge in Miami— saving face for Judge Cannon.
We recognize that such intervention by the chief judge is not an everyday occurrence. If it doesn’t happen, though, there are other options. The more likely possibility here if the Southern District of Florida chooses not to deal with this issue is that the 11th Circuit should be called upon to reassign the case to a different judge at the earliest opportunity. As the case is lodged at the trial court level and is not before the circuit at the moment, that reassignment would likely come only as part of a reversal on appeal of one of Judge Cannon’s decisions.
Under binding 11th Circuit precedents a case should be reassigned to a different judge if, among other reasons, the original judge would have “difficulty” setting aside her previous views and findings and reassignment would not result in a waste of judicial resources. Those factors clearly weigh in favor of reassignment here, due to the difficulties that Judge Cannon will likely face in diverging from her previous, unorthodox, and wrongful rulings benefitting Trump.
This is the path that appears most likely to be pursued if Judge Cannon is to be removed because her approach thus far suggests that it unlikely that the judge will recuse herself. DOJ might choose to make the case in a recusal motion that it would be better for her and everyone concerned if she stepped aside. In just about any other high-profile criminal case, if a trial judge were to err in the direction of excessive leniency favoring a criminal defendant in a preliminary hearing and were reversed on appeal, law and order conservatives would be the first to say that trial judge had a conflict and should be removed. That judge’s reputation would be on trial. Impartiality would be too dubious. The same is true here.
But the Department may, as they often do, take the more conservative approach to recusal. If so, they may instead wait for the judge to overstep once more and at that point ask her, and if she refuses, the 11th Circuit to act. They could do so as part of the appeal of that particular issue if it is available pretrial, as are all CIPA rulings on classified document handling (the general area where she stumbled before). Or, if a Cannon ruling is sufficiently outrageous on an issue that is not normally appealable before trial, they could seek mandamus (available in unusual situations when a district judge is failing to perform their duty).
If seeking reassignment by the 11th Circuit is the outcome here, that will require a bit of patience by all of us. Still, if the special master case is any indication, we should not have a long wait for an erroneous decision by Judge Cannon (although we would be pleased to be proven wrong).
Ultimately, Judge Cannon should do the ethical thing and recuse herself. If she chooses not to, DOJ should be watchful for the first opportunity to seek reassignment by the 11th Circuit. The reputation of the 11th circuit and the ability of their judges, both trial and appellate, to handle sensitive cases with an absence of bias are at stake here. So is the public’s confidence in the outcome of one of the most important criminal trials in the history of our republic. Not to mention the American people’s faith in the entire criminal justice system. Ultimately, a failure to recuse or reassign could well do great damage to the core American principle that no one—not even a former president—is above the law.
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