Experts: Cannon's "bias and incompetence" threaten Trump case as she sets "highly unusual" schedule

Judge Aileen Cannon has "slow-walked to death" the classified documents case against Donald Trump, experts say

By Charles R. Davis

Deputy News Editor

Published May 8, 2024 10:23AM (EDT)

Judge Aileen Cannon and Donald Trump (Photo illustration by Salon/Getty Images/US District Court for the Southern District of Florida)
Judge Aileen Cannon and Donald Trump (Photo illustration by Salon/Getty Images/US District Court for the Southern District of Florida)

It took U.S. District Judge Aileen Cannon almost a year to do what many observers thought was inevitable: kill just about any chance of Donald Trump being put on trial, before the November election, for allegedly stealing classified national security documents and refusing to give them back.

Cannon, a Trump appointee who was selected last June to hear special counsel Jack Smith’s case against the former president, began her Tuesday by pushing back a key filing deadline for the defense team to lay out what classified information it would introduce at a trial. She then issued another ruling delaying a trial indefinitely.

To set a trial date, Cannon wrote, “would be imprudent and inconsistent” with the court’s need “to fully and fairly consider the various pending pre-trial motions,” The Washington Post reported. An indefinite postponement, she continued, is consistent with Trump’s “right to due process and the public’s interest in the fair and efficient administration of justice.”

The next scheduled conference in the case is set for July 22. That means there can be no trial before then – it was once scheduled to begin this month – and probably not before voters head to the polls. If Trump wins the presidential election, he could have his handpicked attorney general kill off the case altogether.

But if Cannon, a former federal prosecutor appointed in 2020, feels overwhelmed by the case and all the pre-trial motions she has yet to rule on, legal experts said she has only herself to blame. Brandon Von Grack, a former Justice Department lawyer who served on Bob Mueller's team, noted, for example, that it’s “highly unusual” for a judge to hold three days of hearings on a defense motion aimed at defining the “scope” of the prosecution’s legal team.

Cannon is also expected to further delay the case by entertaining a defense argument that Trump and his valet, Walter Nauta, are victims of “prosecutorial misconduct and vindictive and selective prosecution,” noted Lawfare senior editor Roger Parloff, who added that Cannon has “already shown herself receptive to these themes.”

Indeed, as The New York Times’ Alan Feuer wrote Tuesday, the delays are not merely a product of a complex case with an unusually high-profile defendant. “Over and over,” he commented, “Judge Cannon … has treated seriously arguments that many, if not most, federal judges would have rejected out of hand.”

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Eric Holder, who served as U.S. attorney general under former President Barack Obama, said Cannon’s behavior has been downright “disturbing,” writing on social media that “this whole process in the documents case has simply not been on the up and up.”

But while liberal critics are quick to point out that Cannon is overseeing a case involving the man who gave her the job she has today, there is an alternative explanation for her behavior: she is also highly inexperienced. As Reuters previously reported, she made several elementary mistakes in a criminal trial she handled last year, such as apparently forgetting to swear in the prospective jury pool and barring the public from observing the selection process, forcing her to later restart the whole process.

But Ty Cobb, who served as legal counsel for the Trump White House before becoming a critic of the former president, told CNN there’s no reason to choose between the two possible explanations for Cannon’s handling of the classified documents case. Why not both?

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“This is a combination of bias and incompetence,” he argued. “The things she has done here are really inexplicable – and it’s tragic,” he said, predicting that the case will not go before jurors until 2025, if it happens at all. “I think it was always her objective, frankly, to prevent this from going to trial.”

Neil Katyal, former acting U.S. solicitor general, argued that the case is not nearly as complex as Cannon has made it out to be – and that Trump is being treated far differently than any other defendant accused of stealing classified documents, including material related to battle plans and nuclear weapons. Appearing on MSNBC, he said he had “lost any hope of seeing this trial take place before November.”

“This decision, and the handling of this case, start to finish, have been atrocious,” Katyal said. “This is not a hard case, it does not require the amount of delay that we’ve had. The case is pretty simple… a guy stole some documents, he hid them, when the government came and looked for them, he lied and hid them,” he continued. “That’s it. It’s not rocket science. And yet this judge has slow-walked this thing to death.”

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

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Aileen Cannon Donald Trump Jack Smith