by Marilyn W. Thompson
ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.
Judge Aileen M. Cannon has shown bias in handling criminal charges against former President Donald Trump and should be reversed and removed from the case to “preserve the appearance of justice,” a public interest group argued in a legal filing on Tuesday.
The brief filed by Citizens for Responsibility and Ethics in Washington and joined by a retired federal judge and two constitutional lawyers is a direct legal assault on Cannon’s decision to throw out special counsel Jack Smith’s prosecution of Trump for alleged mishandling of classified documents. CREW is a nonpartisan open-government advocacy group that has been at the vanguard of fighting Trump in various legal battles.
The brief argues that Cannon’s decision “hinged on ignoring the plain text of four federal statutes,” dismissing “a landmark Supreme Court opinion confirming the Attorney General’s power to appoint a Special Counsel.”
ALSO READ: Why Trump’s Arlington controversy is actually a crime
CREW writes that “a reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon’s many efforts to undermine and derail the prosecution of this case.”
In a stunning July 15 ruling, Cannon wrote that Attorney General Merrick Garland exceeded his authority by appointing Smith as special counsel without congressional approval and violated the Constitution’s separation of powers. “The Special Counsel’s position effectively usurps that important legislative authority,” she said. Critics say that decision was incorrect and disregarded years of legal precedent, including a landmark Supreme Court ruling.
Smith appealed her decision to the 11th U.S. Circuit Court of Appeals, but he stopped short of asking that Cannon be removed if the case is remanded.
Nancy Gertner, a retired federal judge from Massachusetts, was one of several parties who joined CREW as a friend of the court. She told ProPublica she decided after analyzing Cannon’s decision that it could not be explained by her caseload or inexperience.
“It was clearly bias,” said Gertner, who is a senior lecturer at Harvard Law School, citing repeated rulings from Cannon that were favorable to Trump’s attorneys. “And with this Supreme Court, there’s no ceiling. All precedents are up for grabs.”
Federal statutes governing reassignment of cases give appellate courts authority to ask the chief judge in a district to move the case if the original judge “has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality.” The brief cites several precedents, but reassignment based on judicial bias is uncommon.
Cannon, 43, was appointed to the Fort Pierce courthouse in the Southern District of Florida by Trump in November 2020, after he lost the election to Joe Biden. She was randomly assigned to the Trump document-handling case in 2022.
In May, the circuit’s Judicial Council dismissed several misconduct complaints against Cannon, alleging that she deliberately slowed down the Trump case and that she should have recused herself from the case as a Trump appointee. The panel said it would not discipline a judge unless it found a pattern of slowness in numerous cases and did not require her recusal based on her appointment. At the time, Chief Judge William H. Pryor Jr. cut off what he called an orchestrated campaign that brought in more than 1,000 letters seeking her removal.
Cannon’s sudden decision to throw out Smith’s case came on the opening day of the Republican National Convention, and Trump praised her in his acceptance speech as a “highly respected federal judge” willing to stand up against what he has called Smith’s “witch hunts.”
Represented by San Francisco lawyer Steven A. Hirsch of Keker, Van Nest & Peters, CREW described Cannon’s decision to end the case as “the culmination of many efforts to undermine and derail the prosecution.” It cited a series of unprecedented rulings over many months in which Cannon appeared to create “a parallel legal universe for former presidents” and crossed the line “to active judicial interference and advocacy” for Trump.
CREW criticized Cannon for adopting a lone concurrence from Supreme Court Justice Clarence Thomas in an immunity case against Trump and, shortly afterward, rendering a 93-page opinion that echoed the justice’s position that Smith’s prosecutions violated the Constitution.
CREW details “dramatic and unusual” controversies during Cannon’s case that offer the appeals court “more-than-adequate grounds to reassign the case upon remand.”
The 11th Circuit has taken the unusual step of reversing Cannon twice during the course of the case, including a harsh rebuke in December 2022 of her decision to appoint a special master to screen classified documents.
Cannon approved the appointment of a senior federal judge in New York and various federal consultants to examine materials seized from Mar-a-Lago in Florida. Smith had complained to the appeals court that a special master was unnecessary and slowed down the prosecution.
“If the court reverses Judge Aileen M. Cannon’s ruling in this matter, it will be the third time in under three years that it has had to do so in a seemingly straightforward case about a former president’s unauthorized possession of government documents,” CREW argued.
If you have information about Judge Aileen M. Cannon you would like to share, please contact Marilyn W. Thompson at marilyn.thompson@propublica.org or call 917-512-0243.
Alex Mierjeski contributed research.
