"Extremely rare": Experts say report reveals colleagues' "embarrassment" about Judge Cannon's "bias"

The "chagrin Cannon’s incompetence and bias must be causing to her colleagues is unimaginable," says George Conway

By Charles R. Davis

Deputy News Editor

Published June 21, 2024 10:44AM (EDT)

Judge Aileen Cannon and Special Counsel Jack Smith (Photo illustration by Salon/Getty Images/US District Court for the Southern District of Florida)
Judge Aileen Cannon and Special Counsel Jack Smith (Photo illustration by Salon/Getty Images/US District Court for the Southern District of Florida)

The story, in a way, is that there is any story at all: On Thursday, two sources told The New York Times, in effect, that every liberal critic of Judge Aileen Cannon — every legal analyst who says she has mishandled Donald Trump’s classified documents case, displaying incompetence and prejudice — is absolutely right.

First, go back to the summer of 2022, when Cannon, 43 and appointed to the federal bench by the criminal defendant, first got involved in the case brought by special counsel Jack Smith. It was then that she first shocked the legal community by buying Trump’s argument that, perhaps, the government had no right to sift through all the classified documents it found stashed at Mar-a-Lago; perhaps, she ruled, those documents were protected by “executive privilege” and should instead be reviewed by a third party, known as a special master.

That decision delayed the case by months and was unanimously overruled by the conservative U.S. Court of Appeals for the 11th Circuit, which stated, “The law is clear” (and Judge Cannon clearly wrong).

After the embarrassment of that slap-down, Cannon lucked out: Instead of limping away, she was randomly assigned responsibility over the whole case months later. It was then, the Times reports, that two of her colleagues, including Chief Judge Cecilia M. Altonaga, implored her to step aside. Altonaga, in particular, went straight at the issue, telling Cannon it would be a bad look to take the case considering how badly she had bungled the whole “special master” issue.

It’s “extremely rare for judges to tell other judges that they ought to step aside,” The Times' Charlie Savage, who shared a byline on the story, told CNN. “So it’s not like there’s a roadmap here that makes anything about this normal.”

It is also highly unusual for any court’s dirty laundry to be aired out in the press like this. As the Times noted, the sources who shared the story “had been told about it by different federal judges in the Southern District of Florida, including Judge Altonaga.”

We need your help to stay independent

In other words, Cannon’s own colleagues are openly talking about her bias and inability now that both have been ably demonstrated in case that still has no trial date, a year after she was assigned it, largely due to the fact that she has agreed to hold hearings on just about every issue raised by the defense. On Friday, even outside right-wing attorneys will be given time in the courtroom to argue that it was actually illegal for Smith to even bring the case.

'”It's somebody literally saying to the American public: All of those concerns you hear about Judge Cannon being out of her depth, in the tank for Donald Trump — those are concerns shared by two colleagues on the bench,” noted MSNBC legal analyst Lisa Rubin.

“Both the story and the fact that it has been reported are remarkable,” conservative lawyer George Conway posted on social media. “The degree of embarrassment and chagrin Cannon’s incompetence and bias must be causing to her colleagues is unimaginable.”

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

That is indeed the takeaway: Whatever grumblings about Cannon one hears on MSNBC or CNN — those are shared by the federal judges who know her best. It is not that complicated of a case and believing that Cannon is bungling it, possibly on purpose, is not merely a product of year-nine “Trump Derangement Syndrome.”

Ty Cobb, a former Trump White House attorney turned critic of the former president, said the reasons why the judges would speak out about Cannon — behind her back, at the very least, if not directly to the Times — can be seen in the decision she made to hold a hearing on whether Smith can bring the case at all (Trump’s defense insists, contra precedent, that the appointment of a special counsel is unconstitutional).

“The fact that Trump can get a hearing on the flimsiest arguments is shocking,” Cobb told CNN. It’s also the closest she’s come to giving Smith a sure-fire reason to ask for her removal.

“The worst thing that could happen to her is that she actually does rule for Trump on this,” Cobb said, “because that would go to the 11th Circuit and then I think this petty, partisan prima donna would be put in her place and they would remove her.”

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.

MORE FROM Charles R. Davis

Related Topics ------------------------------------------

Aileen Cannon Jack Smith