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Don’t assume Aileen Cannon gets fired from Trump’s documents case

Past precedents won’t automatically put a new judge on the bench in United States of America v. Donald J. Trump (and Waltine Nauta).

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Aileen Cannon became a household name last year for all the wrong reasons. Her erroneous rulings for Donald Trump during the classified documents probe — giving him special treatment because he’s a former president — led an all-Republican appellate panel to smack down her legal reasoning. In an absurd twist of fate, the Trump-appointed judge has been assigned to preside over the resulting prosecution in Florida federal court.

But wait, you might be thinking: Given Cannon’s prior dubious involvement, she must be recused, right? Right???

Not necessarily.

Federal law provides that a judge “shall disqualify himself in any proceeding?in which his impartiality might reasonably be questioned.” Cannon, a self-proclaimed textualist, could read those simple words and settle the matter by taking herself off the case (putting aside that a hyper-textualist reading of that line would exempt female judges, given the reference to "himself").

An examination of circuit case law suggests kicking Cannon off the case is possible but not a foregone conclusion.

If she doesn’t, and prosecutors press the issue, then we can look to precedent from the 11th U.S. Circuit Court of Appeals, the court that rejected her rulings in the special master litigation. While Trump’s case is unprecedented, an examination of circuit case law suggests kicking Cannon off the case is possible but not a foregone conclusion.

In United States v. Torkington, for example, the government successfully argued that the case should be reassigned. The 11th Circuit ruled that the offending judge “has demonstrated great difficulty in putting aside his prior conclusions about the merits of this prosecution and that reassignment is necessary to preserve the appearance of impartiality.” That language sounds like it could apply to Cannon and Trump. Indeed, the judge in Torkington had already been reversed by the appeals court for wrongly dismissing the case at an earlier stage of the litigation. Cannon, however, hasn’t had that opportunity yet in Trump's prosecution, because her prior rulings technically came in a separate case — a civil suit brought by Trump before he was charged. Further separating Torkington from Trump is that the 11th Circuit noted that the Torkington judge directly called the prosecution into question, deeming it silly and a vendetta. Even then, the appeals court concluded, “We do not order this case reassigned lightly.”

Another case that’s been cited for ditching Cannon is United States v. Martin. As it happens, it was handled by MSNBC legal analyst Joyce Vance when she was a federal prosecutor in Alabama, which is also covered by the 11th Circuit. The judge in Martin was reversed multiple times on the issue of the defendant’s sentence. The appeals court cited that repeat issue in the criminal case as well as the judge’s imposition of skewed sentences in other cases. Again, however, we see a possible difference between Trump’s case at this stage and prior precedent, in that reassignments have followed a judge’s actions in a particular case, or involved a discrete issue such as sentencing in the Martin case.

As the 11th Circuit put it in another reassignment case, United States v. Gupta, referring to Martin and Torkington, respectively: “Reassignment is necessary when a district judge adheres to erroneous views after multiple remands” or when a judge questions the wisdom of the law they have to apply and challenges the government’s decision to prosecute a particular defendant.

Absent further aberrant conduct by Cannon, whether her unhinged rulings in the civil litigation apply to the reassignment calculus would, at this stage, be crucial to the outcome of any recusal challenge. (Had she not dismissed the civil litigation as ordered on remand from the 11th Circuit last year, that would have been an obvious reason to reassign that case to another judge.)

To be sure, none of this forecloses reassignment for Cannon, whose impartiality has been and will be questioned. It just shows that it isn’t guaranteed at this point.

As for the next steps on possible recusal, the call first lies with Cannon. If she doesn’t recuse, then whether she’s asked or forced to do so may well depend on how she conducts herself going forward.

The reality is that a trial judge has immense power over a case — including the seemingly innocuous subject of scheduling, which takes on increasing importance in Trump's case as the 2024 election approaches — and can tinker with justice in ways that don’t rise to the level of recusal.

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