Judge Aileen Cannon’s plodding supervision of the Mar-a-Lago documents case is coming under building scrutiny after she dedicated three days this week to exploring long-shot motions from former President Trump.
Cannon weighed arguments from Trump’s team that question the legitimacy of special counsel Jack Smith’s appointment and his office’s funding, while taking the highly unusual step of inviting outside groups into her Fort Pierce courtroom to weigh in on the matter.
Her lengthy consideration comes after reporting from The New York Times that two of Cannon’s judicial colleagues urged her to hand off the case — including one who was concerned about the optics after one of Cannon’s actions was criticized by a higher court.
There is no trial date set in the case; Cannon suspended the start date indefinitely as she argued she must carefully weigh a pile of pretrial motions from Trump that ask her to toss the proceedings.
Attorneys generally avoid open criticism of a judge, but that dynamic has shifted as motions mount in the Trump documents case.
Lawyers have called the delays by Cannon unusual and problematic, though criticism from the left has been sharper. Some have asked whether inexperience, incompetence or even bias could be affecting her handling of the case.
“There's nothing — nothing — about the way she has handled the case that is normal, that is usual, and that makes a degree of sense — except that she's just so inexperienced or second, that she's just not confident, or third, that she is so biased to Trump,” Nancy Gertner, a retired federal district court judge appointed by President Clinton, told The Hill.
“By not setting a trial date, by not deciding motions, she is simply slow-walking the case, and that is clearly in Trump's interest.”
One attorney who previously defended Trump also criticized Cannon and said some of her actions are aiding the former president’s desire for delay.
“The decisions aren’t coming quick enough. She’s asking too many other people to come in and give their opinions,” Michael van der Veen, who defended Trump during his second impeachment, said during an appearance on CNN.
While he called her a “smart lady,” he stressed the need for “timely” decisions, adding that by failing to do so in this case, “it’s really playing right into the defense’s hands.”
During three days of hearings this week, Cannon at times chastised prosecutors. But she also was deeply skeptical of a bid by Trump’s lawyers to suppress evidence collected during the FBI’s search of his Mar-a-Lago home.
Still, this scrutiny of Trump’s legal team took place in a context in which Cannon has repeatedly agreed to hear out arguments from the defense that outside observers say many judges would have addressed more quickly.
“There will not be a trial in this case until after the election, thus paving the way for a 50 percent — roughly speaking — possibility that the defendant in that case will be in a position to either pardon himself or instruct that the case against him be dropped,” Jeff Robbins, a former federal prosecutor now in private practice, told The Hill. Robbins formerly worked as deputy chief counsel for the Democratic senators on the Senate Governmental Affairs Committee.
“Every delay pushes this all back, and the Trump team has given her almost limitless opportunities to not act on things or to push things back. And rather than taking the judicial bull by the horns, and firmly establishing schedules, prompt schedules, as the vast, vast majority of other federal judges would do, certainly in a case like this, she has foot-dragged.”
Cannon's handling of the case has raised eyebrows since even before Trump was indicted, when she appointed a special master to review evidence collected at Mar-a-Lago. She was sternly reversed by a panel of three judges all appointed by Republicans, including two by Trump.
It was that incident that reportedly led Chief Judge Cecilia Altonaga, a George W. Bush appointee, to suggest Cannon hand off the case once the charges came before her.
As she's stuck with the case, Cannon has bucked the practice of allowing a magistrate judge to weigh some of the pretrial motions in the case, something often done by district court judges to free their attention. Not doing so also gives her more control over the case.
She’s also scheduled numerous hearings to weigh matters other judges would likely decide based on briefs already filed — something other judges said they would likely decide “on the papers.” Judges can also rule from the bench after a hearing, but Cannon has thus far declined to do so, instead taking the lengthier route of drafting opinions.
Giving that level of serious consideration to motions unlikely to succeed, Gertner said, could be a sign of bias.
“An inexperienced judge would not indulge arguments that have not succeeded anywhere else,” she said.
“A young and inexperienced judge would typically defer, as she should, to cases where the precedent points overwhelmingly in one direction. You don't stick your neck out to decide new principles or to upend precedent. So given the fact, for example, that there is overwhelming precedent supporting the appointment of Jack Smith, the notion that she is dignifying Trump's arguments by holding hearings is already disturbing.”
Shira Scheindlin, also a retired federal district court judge appointed by Clinton, said she does not attribute Cannon’s handling of the case to bias, but rather “a combination of inexperience and lack of self-confidence.”
She noted the details of Smith’s appointment might be interesting to a former appellate lawyer like Cannon who often enjoys getting in the weeds.
“So there's a little hook here that's interesting, and it grabs her attention, and she held the hearing. I don't think that's so terrible, but what's terrible is not getting to the decision more quickly,” Scheindlin said.
Cannon has defended her pacing in the case.
“I can assure you that in the background, there is a great deal of judicial work going on,” she said in a March hearing.
“So while it may not appear on the surface that anything is happening, there is a ton of work being done.”
Cannon did not rule from the bench following any of the hearings, leaving unclear when she will address them.
During Monday’s hearing, Cannon at one point asked detailed questions about the special counsel’s funding, at times seeming to surprise prosecutors by the extent she sought more granular details.
And at a separate hearing to weigh whether Trump’s conditions of pretrial release bar statements he made suggesting the Justice Department gave the green light to assassinate him, Cannon again clashed with prosecutors.
As prosecutor David Harbach tried to list reasons restrictions on Trumps’ speech were consistent with the First Amendment, he was cut off by Cannon, with the prosecutor at one point exasperatedly noting, “I’ve got one reason out so far.”
Cannon snapped back that she did not appreciate his tone, prompting Harbach to later apologize.
Jonathan Turley, a conservative legal scholar, defended Cannon this week, noting that Cannon did rule against Trump as he asked her to strike the obstruction-related charges in the indictment.
“In reality, the ‘loose Cannon’ spin is utterly disconnected with her actual rulings,” Turley wrote in an op-ed in the New York Post.
“She has ruled for and against both parties on major issues. That includes rejecting major motions filed by the Trump team and most recently challenging Trump counsel on claims that the special counsel is part of ‘a shadow government.’”
The limited rulings, however, are just a fraction of those still sitting before Cannon.
“Whether the foot dragging is because, as some have speculated, she's quite insecure and inexperienced and doesn't know how to control her docket, or [if] it's because some part of her feels as though she's inclined to let this bump along, and if it was helpful to the person who appointed her, that’s not such a bad thing — one doesn’t know,” Robbins said.
“One or the other or both are true.”
The Associated Press contributed.
