On Tuesday, a process begins that could ultimately decide whether Judge Aileen Cannon will retain control of the criminal case looking into Donald Trump's allegedly unlawful retention of White House documents, a former federal prosecutor said on Sunday.
Ex-prosecutor Joyce Vance wrote for her Substack blog that, on that day, "Special Counsel Jack Smith’s opening brief is due in the Eleventh Circuit, where he’s appealing Judge Cannon’s decision to dismiss his prosecution of Donald Trump for mishandling classified documents and obstructing the investigation into his crimes."
"Judge Cannon ruled in July that the process used to appoint the Special Counsel was unconstitutional and dismissed the case on that basis," according to Vance.
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According to Vance's article, "no other judge to consider the issue has ruled that way, and prosecutions conducted by special counsels have been routine, if infrequent."
She goes on to say that, if the special counsel, Jack Smith, is found by the appeals court to be eligible to stay on the case, the issue of Cannon's control will arise.
"The issue that is more likely to find its way into the appeal is whether Judge Cannon should remain on the case if the indictment is reinstated. If they win this appeal, the government could ask the court to reassign the case to a new judge," according to Vance. "They could also stay silent on that issue and leave it up to the court, hoping the three-judge panel will act on its own. That has happened in other cases in the Circuit, where a trial judge’s decisions resulted in multiple reversals on appeals involving related issues."
Vance further added that, "Jack Smith never asked Judge Cannon to recuse herself."
"If he had, she would have been required to explain the basis for her decision in a written order if she declined to recuse. That would have given the government (and the court) a record to work with," she wrote. "Absent that, the government could argue that her decision to dismiss, on top of Judge Cannon’s earlier errors, means it would be better to send the case back to a new district judge, who could give the case a fresh look."
Vance also cited an example of when something similar has occurred at the same appeals court.
