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Judge Cannon’s Game Plan

THE JUDGE PRESIDING OVER Donald Trump’s classified documents prosecution just gave Special Counsel Jack Smith a gift that he desperately needed: a fresh opening to seek her removal from the case.

Last week, Judge Aileen Cannon ordered defense lawyers and prosecutors to propose jury instructions based on two scenarios, “each of which badly misstates the law and facts of the case,” as the Washington Post explained.

Trump’s lawyers have argued that the Presidential Records Act gives Trump the right to determine that highly classified documents relating to national defense are “personal” records. Both of the “competing” jury instructions Cannon ordered the parties to submit take that preposterous argument seriously: one would flat-out adopt it and the other would let the jury decide. In the words of former federal judge Nancy Gertner, Cannon “is giving credence to arguments that are on their face absurd.”

Cannon’s order last week was only the most recent in a series of bizarre, legally inexplicable pro-Trump orders she has entered in the case.

Speculation as to why Judge Cannon acts this way—whether she’s a fallible “rookie jurist who caught a tough case” or a cynical MAGA loyalist looking to advance her career by ingratiating herself to Trump—doesn’t change the underlying facts: Whatever her motivation, “Cannon’s rulings are essentially the same as if she were a MAGA judge in the tank for Trump.”

Smith can’t climb into Judge Cannon’s head in the hope that understanding her motivation might enable him to predict her future actions. But her pattern of erroneous, one-sided rulings consistently favoring Trump has to send chills down Smith’s spine. He doesn’t need to know what she will do, only what she can do: She can kill his case with the stroke of a pen.

If Smith wants to save his case, he has little choice. He must seek Cannon’s removal.

DISQUALIFYING A FEDERAL district judge from a case is not easy, but it can be done. The standard for disqualification—a judge can be removed in “any proceeding in which his impartiality might reasonably be questioned”—sounds broad, but the first obstacle is that the motion to remove Judge Cannon generally would have to be made initially to Judge Cannon herself. A second obstacle is that if Judge Cannon were to deny the motion, as is likely, her decision normally could not be appealed immediately, only after a final determination of the case.

Why all the weasel words—“initially,” “generally,” “normally”? Therein lies Smith’s chance.

While a motion to remove a judge generally has to be filed initially with the judge herself, the Eleventh Circuit Court of Appeals—the appellate court that has jurisdiction over Judge Cannon’s court—has “the authority to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district courts in this Circuit”:

If a district judge’s continued participation in a case presents a significant risk of undermining this public confidence, this Court has the authority and the duty to order the case reassigned to a different district judge. Reassignment may be appropriate, for example, if a judge conducts a trial in a manner that creates the appearance that he is or may be unable to perform his role in an unbiased manner. [Emphasis added.]

In U.S. v. Torkington, the 1989 case linked above, the Eleventh Circuit did just that, ordering that the case be reassigned to a different district judge “to preserve in the public mind the image of absolute impartiality and fairness of the judiciary,” citing a pattern of rulings and statements that created “the appearance of a lack of neutrality.”

And while a district judge’s denial of a recusal motion normally can be appealed only after the case is over, if Smith can show that he has no other remedy to address a serious flaw in Judge Cannon’s decision-making process, he can seek a writ of “mandamus” to remove her—or the Eleventh Circuit could remove her on its own, while reviewing some other order issued in the case.

In short, Smith has a path to remove Cannon from the case, albeit not an easy one. If he’s going to take that path, he has to act soon. It’s too risky for him to wait for Judge Cannon’s next oddball order.

The risk that Smith might fail in his attempt to remove Cannon from the case, thus incurring her wrath, is greatly overrated. If she’s already in the bag for Trump, it wouldn’t matter—she’ll find a way to kill the case anyway. And in the event that she’s just a sincere, poorly staffed, misunderstood jurist trying to do the right thing, a failed attempt to remove her from the case is unlikely to convert her into to a politically compromised stooge hellbent on revenge.

The risk of not removing her, by contrast, is massive.

Do the math:

  • Will she kill Smith’s case? Probably.
  • Can she do it? Yes.
  • Can she do it regardless of whether Trump wins or loses the 2024 presidential election? Yes.
  • Can she do it without issuing any more orders that could get her reversed on appeal and removed from the case? Yes, if she’s smart about it.

That adds up to big trouble for Smith. If Judge Cannon is determined to kill his case, her game plan would be neither complicated nor difficult to pull off:

  1. Delay the trial date until after the 2024 presidential election. By now, pretty much everybody expects her to do this. As a federal judge Cannon has more than enough discretion to find reasons not to schedule a trial before November. One lever she has already pulled is to issue pretrial orders that force Jack Smith to appeal, thus building delay into the process. But doing too much of that can be risky because if the orders are too crazy, or too obviously biased, or too numerous, she may find herself removed from the case. It’s also unnecessary. If Cannon is savvy, she will avoid issuing orders that give Smith yet more grounds to seek her removal, and will instead simply slow-walk the case.
  2. If Trump wins the election, Cannon won’t have to do anything. Trump will get rid of the case himself. He will either fire Smith, order the DOJ to dismiss the case, pardon himself, or otherwise abuse his presidential authority. And even if he doesn’t do any of those things, he can just wait it out—he won’t be prosecuted while he’s in office, and he’s not going to lose any sleep worrying that he might . . . maybe . . . theoretically . . . face justice somewhere, sometime four years down the road.
  3. If Trump loses the election, Cannon starts the trial, empanels and swears a jury, avoids making any blatantly erroneous rulings, and waits until Smith closes the prosecution’s case.
  4. As soon as the prosecution rests, Trump files a motion asking Cannon to enter a judgment of acquittal on the ground that the evidence presented during the prosecution’s case is insufficient to support a conviction.
  5. Cannon grants the motion and enters a judgment acquitting Trump of all charges. Trump walks away, above the law, protected by the Fifth Amendment’s prohibition against double jeopardy.

In case you’re wondering, yes, Judge Cannon has the power to acquit Trump all by herself, without submitting the case to the jury, or even requiring Trump to put on a defense.

After the close of the prosecution’s case, a criminal defendant can file a motion asking the judge to enter a judgment of acquittal. Under Rule 29 of the Federal Rules of Criminal Procedure, the court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”

In other words, the trial judge alone, without any input from the jury, can decide whether the evidence is sufficient to support a conviction. If she concludes that it is not, she not only can, but must enter a judgment of acquittal.

If Cannon were to enter the order after a jury has been empaneled and sworn but before it has delivered a verdict, Smith would have no remedy. The double jeopardy provision of the Fifth Amendment prohibits trying a person twice for the same crime. Since jeopardy attaches as soon as a jury is empaneled and sworn, Smith would not be allowed to appeal the order of acquittal, no matter how egregiously wrong that order might be.

Cannon could even enter an order of acquittal after the jury delivers a guilty verdict. Rule 29 authorizes a judge to set aside a jury verdict of guilty and enter an order of acquittal. Waiting until after the jury delivers a verdict would allow Cannon to hedge her bet: If the jury acquits Trump, then she wouldn’t have to do anything, but if the jury returns a guilty verdict, she can still enter an order of acquittal.

But waiting to acquit until after the jury delivers a guilty verdict would mean the acquittal would be subject to appeal and reversal. A reversal on appeal would not subject Trump to double jeopardy because it would not create a second trial on the same crime, it would only reinstate the jury’s guilty verdict in the first trial. In other words, waiting until after the jury reaches a verdict could put Trump beyond Cannon’s help.

Had enough law school yet? Here’s the bottom line: The mounting evidence suggests that if Cannon isn’t removed from the case, Smith won’t win.

That makes any debate over whether Smith has strong enough grounds to get her removed almost entirely academic. I get it—Smith might not be able to convince the court of appeals that he has enough on Cannon to get her off the case. But it may be now or never. Waiting until she gives him another oddball decision is risky. If she doesn’t, he could miss his shot.

Smith should go for it—and soon. Otherwise, it increasingly looks like he will lose his case.

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One Comment

  1. A thought…
    Brian Butler, Trump employee 5, saw boxes of docs get put on a plane. To Bedminster? If searched and found, wouldn’t that open a fresh case in a jurisdiction not Florida?

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