Right-wing Judge Aileen Cannon is on "thin ice" in the Mar-a-Lago classified documents case — and special counsel Jack Smith might be about to ask higher court judges to bring the hammer down on her, legal experts Norm Eisen, Danya Perry, and Josh Kolb wrote for CNN on Wednesday.
Cannon, herself a Trump appointee, has been overridden by lower courts multiple times throughout this process, often being rebuked for her misapplication of the law — and her latest controversial move was to propose the jury be instructed to consider the merits of Trump's Presidential Records Act defense to the charges, rather than rule on it herself.
"Cannon is headed for the most trouble she has faced since that 11th Circuit reversed her twice in her original meddling in the government’s pre-indictment investigation," the experts wrote. They acknowledged there are possible explanations for her behavior that doesn't involve bias toward Trump — but "If she does not course-correct, she’s headed for another shellacking by the circuit – and possible removal from the case."
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Regarding Cannon's order to punt the PRA issue to the jury, they wrote, "We have never seen anything like this before in our collective half-century of legal practice. Judges are supposed to decide the law and to order parties accordingly, not invent fanciful alternative realities for everyone to react to. Putting that to the side, though, as Smith’s new response makes crystal clear, Cannon’s order suffered from an even more fundamental problem: Both options rest on badly misconceived assumptions about the law ... presidents are not allowed to designate official records as personal ones, so there is no factual issue for a jury to resolve." And the second scenario would essentially endorse Trump's idea that he automatically declassifies documents — even nuclear secrets and information that could expose spies — simply by taking them.
"If she ultimately embraces the legal interpretation articulated in her proposed scenarios, Smith indicated he would strongly consider immediate appellate review. That shows how seriously Smith views this issue and the fundamental error Cannon would be making," the experts wrote. That's significant, they added, because the 11th Circuit could act to remove her from the case altogether if her decisions create “the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.”
"Ejecting her from the case would be extremely unusual and Smith does not mention seeking it in his papers," they concluded. "But neither does he rule it out, and Cannon’s reasoning on the jury instructions and on exposing witnesses is lawless enough that, unless she reverses course, he may have no other choice."
