"She doesn’t belong on the bench": Experts say Cannon's move suggests she's "trying to kill" case

Judge Aileen Cannon appears to be trying to delay the case “as long as she possibly can," former judge says

By Charles R. Davis

Deputy News Editor

Published June 6, 2024 10:59AM (EDT)

Former U.S. President Donald Trump prepares to testify during his trial in New York State Supreme Court on November 06, 2023 in New York City. (Jefferson Siegel-Pool/Getty Images)
Former U.S. President Donald Trump prepares to testify during his trial in New York State Supreme Court on November 06, 2023 in New York City. (Jefferson Siegel-Pool/Getty Images)

June 10 will mark a full year since U.S. District Judge Aileen Cannon was randomly assigned Donald Trump’s classified documents case. There is no set trial date. There have hardly been any rulings. But now, at least, there will be a full day and a half of hearings later this month during which right-wing attorneys who are not even part of the case will be given the opportunity to argue that special counsel Jack Smith never should have been allowed to bring charges in the first place.

The facts of the case are this: Trump, as he left the White House in the wake of his failed insurrection, took top-secret classified documents – dealing with everything from nuclear programs to battle plans – and refused to give them back. A search of his Mar-a-Lago resort found state secrets in his office and a bathroom. An audio tape shows Trump discussed one, about a possible attack on Iran, and acknowledged he did not have the right, later asserted by his defense, to unilaterally disclose it: “See as president I could have declassified it. Now I can’t, you know, but this is still a secret.”

Cannon, who Trump appointed just months before losing the 2020 election, has made the case complicated by entertaining just about every argument the defense has made, without making a definitive ruling that would allow the Department of Justice to file an appeal and maybe have her removed. Last month, she indefinitely postponed setting a trial date, citing that self-imposed workload and all the “myriad and interconnected” issues she has yet to decide on; this, after she “effectively disrupted” the original investigation, per The New York Times, by among other things considering the argument that Trump had the right to assert executive privilege and claim highly classified documents as his own (the 11th Circuit Court of Appeals overruled and reprimanded her some six months before she was randomly given the entire case).

It is, at the very least, not a good look. But before claiming prejudice, some argue that it could be mere incompetence from a 43-year-old judge who has never before handled a case of such magnitude. Maybe that’s why, for instance, she again upended her own schedule on Wednesday, postponing a planned three days of hearings on whether Trump’s defense team should be allowed access to prosecutors’ purported conversations with national security officials.

“Some will say Cannon has shown clear bias,” MSNBC legal analyst Lisa Rubin commented Wednesday. “I won’t. Weird sleights of scheduling, delay, [and] even legally erroneous rulings don't prove bias. But her management of her docket and micromanagement of these motions are baffling, at best, and highly problematic at worst.”

Others say it’s time to stop being generous.

“This whole way she has conducted this case is wildly, totally, crazily unusual,” CNN legal analyst Jeffrey Toobin argued, pointing to the decision to allow outside attorneys not just to file amicus briefs, in which they would comment on legal questions at issue in the case, but get a half hour each to make oral arguments – even after other courts already rejected similar claims that the appointment of a special counsel is unconstitutional.

It’s “just another illustration that she is trying to kill this prosecution,” Toobin said Wednesday. “That’s the only conclusion you can draw. No other judge in the federal system that I’m aware of would treat these issues anything like what she’s trying to do.”

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Mary McCord, a former federal prosecutor, told MSNBC she’s “never seen” a district judge allow an outside party – in this case, attorneys associated with the right-wing Federalist Society, of which Cannon was a member herself – given time to make in-real-life arguments, much less a half hour each.

“That is an extraordinary amount of argument time on a single issue,” McCord said. “Most oral arguments aren’t even 30 minutes per side or party.” And it almost never happens at the highest level, the Supreme Court, much less at a district court, she added.

Former Miami-Dade County Court Judge Jeff Swartz told CNN that it looks as if the judge is trying to delay the case “as long as she possibly can,” perhaps hoping to drag it out past the November election; if he wins in November, Trump could order the Department of Justice to drop the case altogether.

“If she is that ignorant of how to handle these matters, then she doesn’t belong on the bench,” Swartz said. “If she’s doing it because she’s lazy, then she doesn’t belong on the bench. If she’s doing it just to delay, then she doesn’t belong on the bench.”

Ty Cobb, an attorney who worked for the Trump White House before becoming a vocal critic of the former president, said he doesn’t think Cannon will ever preside over a Trump trial, suggesting she will ultimately be replaced but not before she succeeds in dragging out the case.

“Judge Cannon is kicking the can down the road as long as she can and delaying both the trial, which is clearly her purpose – and when I say purpose, it is purposeful now, it’s not mere ineptitude,” Cobb told CNN. “This is clearly palpable bias on her part.”

Cannon, Cobb said, is trying to avoid “at all costs” making any sort of ruling that could lead the special counsel to appeal to the 11th Circuit, which has already overturned her before. At this stage, he said, her actions are disappointing – the most clear-cut Trump case stalled, with no end in sight – but no longer shocking.

“I don’t find anything she does surprising, at this stage in the game,” he said, “as long as it favors the former president.”

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 Jeffrey Toobin Lisa Rubin Ty Cobb