Cannon
Rick Smith
South Florida Sun-Sentinel (Fort Lauderdale)
Thursday, June 20, 2024 at 3:17 p.m.
Judge in Trump Mar-a-Lago documents case rejected suggestions from colleagues to step aside
By CHARLIE SAVAGE | The New York Times and ALAN FEUER | The New York Times
Shortly after Judge Aileen M. Cannon drew the assignment in June 2023 to oversee former President Donald Trump’s classified documents case, two more experienced colleagues on the federal bench in Florida urged her to pass it up and hand it off to another jurist, according to two people briefed on the conversations.
The judges who approached Cannon — including the chief judge in the Southern District of Florida, Cecilia M. Altonaga — each asked her to consider whether it would be better if she were to decline the high-profile case, allowing it to go to another judge, the two people said.
But Cannon, who was appointed by Trump, wanted to keep the case and refused the judges’ entreaties. Her assignment raised eyebrows because she has scant trial experience and had previously shown unusual favor to Trump by intervening in a way that helped him in the criminal investigation that led to his indictment, only to be reversed in a critical rebuke by a conservative appeals court panel.
The extraordinary and previously undisclosed effort by Cannon’s colleagues to persuade her to step aside adds another dimension to the increasing criticism of how she has gone on to handle the case.
She has broken, according to lawyers who operate there, with a general practice of federal judges in the Southern District of Florida of delegating some pretrial motions to a magistrate — in this instance, Judge Bruce E. Reinhart. While he is subordinate to her, Reinhart is an older and much more experienced jurist. In 2022, he was the one who signed off on an FBI warrant to search Mar-a-Lago, Trump’s club and residence in Florida, for highly sensitive government files that Trump kept after leaving office.
Since then, Cannon has exhibited hostility to prosecutors, handled pretrial motions slowly and indefinitely postponed the trial, declining to set a date for it to begin, even though both the prosecution and the defense had told her they could be ready to start this summer.
But Trump’s lawyers have also urged her to delay any trial until after the election, and her handling of the case has virtually ensured that they will succeed in that strategy. Should Trump retake the White House, he could order the Justice Department to drop the case.
As Cannon’s handling of the case has come under intensifying scrutiny, her critics have suggested that she could be in over her head, in the tank for Trump — or both.
Against that backdrop, word of the early efforts by her colleagues on the bench to persuade her to step aside — and the significance of her decision not to do so — has spread among other federal judges and the people who know them.
Neither Cannon nor Altonaga directly responded to requests for comment, including by emails sent via the clerk of the district court, Angela E. Noble. Noble later wrote in an email, “Our judges do not comment on pending cases.”
It is routine for novice judges to look to more experienced jurists for informal advice or mentoring as they learn to perform their new roles. And as the district’s chief, Altonaga has a formal role in administering the federal judiciary in South Florida.
But ultimately, Cannon is not subject to the authority of her district court elders. Like any Senate-confirmed, presidentially appointed judge, she has a life tenure and independent standing and is free to choose to ignore any such advice.
The two people who discussed the efforts to persuade her to hand off the case spoke on the condition of anonymity to discuss the matter. Each had been told about it by different federal judges in the Southern District of Florida, including Altonaga.
Neither of the people identified the second federal judge in Florida who had reached out to Cannon. One of the people confirmed the effort to persuade Cannon to step aside but did not describe the details of the conversations the two judges had with her. The other person offered more details.
This person said each outreach took place by telephone. The first judge to call Cannon, this person said, suggested to her that it would be better for the case to be handled by a jurist based closer to the district’s busiest courthouse in Miami, where the grand jury that indicted Trump had sat.
The Miami courthouse also had a secure facility approved to hold the sort of highly classified information that would be discussed in pretrial motions and used as evidence in the case. Cannon is the sole judge in the federal courthouse in Fort Pierce, a two-hour drive north of Miami. When she was assigned to the case, the courthouse in Fort Pierce did not have a secure facility.
Because Cannon kept the case, taxpayers have since had to pay to build a secure room — known as a Sensitive Compartmented Information Facility, or SCIF — there.
After that initial argument failed to sway Cannon to step aside, the person said, Altonaga placed a call.
The chief judge — an appointee of President George W. Bush — is said to have made a more pointed argument: It would be bad optics for Cannon to oversee the trial because of what had happened during the criminal investigation that led to Trump’s indictment on charges of illegally retaining national security documents after leaving office and obstructing government efforts to retrieve them.
In August 2022, the FBI obtained a search warrant from Reinhart to go to Mar-a-Lago to hunt for any remaining classified documents that Trump had failed to turn over after receiving a subpoena for them.
The agents found thousands of government files that Trump had kept, even though under the Presidential Records Act, they should have gone to the National Archives when he left office. The files the FBI recovered included more than 100 marked as classified, including some at the most highly restricted level.
Soon after the search, Trump filed a lawsuit against the government protesting the seizure of the materials, which he claimed were his personal property, and asking for a special master to be appointed to sift through them. Rather than letting Reinhart handle that lawsuit, as would be the normal procedure, Cannon chose to decide the matter.
Shocking legal experts across ideological lines, she banned investigators from gaining access to the evidence and appointed a special master, although she said that person would only make recommendations to her and she would make the final decisions.
Cannon’s decision was unusual in part because she intervened before there were any charges — treating Trump differently from typical targets of search warrants based on his supposed special status as a former president.
She also directed the special master to consider whether some of the seized files should be permanently kept from investigators under executive privilege, a notion that was widely seen as dubious since it has never successfully been made in a criminal case.
Prosecutors appealed to the 11th U.S. Circuit Court of Appeals, in Atlanta. In a repudiation, a three-judge panel that included two Trump appointees reversed her order and ruled that she never had legal authority to intervene in the first place.
“It is indeed extraordinary for a warrant to be executed at the home of a former president — but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” the panel wrote.
Limits on when courts can interfere with a criminal investigation “apply no matter who the government is investigating,” it added. “To create a special exception here would defy our nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth or rank.’”
Trump’s lawyers appealed to the Supreme Court, but it declined to hear the case. In December 2022, Cannon dismissed Trump’s lawsuit.
Six months later, the grand jury in Miami indicted Trump, alleging in detail how he had stored highly sensitive documents in a bathroom and on a stage at Mar-a-Lago and persistently led his aides and lawyers to stymie efforts by the Justice Department and the National Archives to recover them.
Under the district’s standard practices, according to its clerk, the new case went into a system that would randomly assign it to one of a handful of judges whose chambers are in the West Palm Beach division, which covers Mar-a-Lago, or in either of its two adjoining divisions, Fort Pierce and Fort Lauderdale.
It went to Cannon.
Rick Smith
5264 N. Fort Yuma Trail
Tucson, AZ 85750
Rick Smith
https://www.miamiherald.com/news/nation-world/national/article289452580.html
Miami Herald
FRIDAY, JUNE 21, 2024 5:44 PM
Aileen Cannon ‘Skeptical’ of Donald Trump’s Claim: Report
BY AILA SLISCO NEWSWEEK
U.S. District Judge Aileen Cannon reportedly appeared "skeptical" of claims from former President Donald Trump's legal team during a potentially pivotal court hearing.
Cannon, who is overseeing Trump's federal classified documents criminal case, presided over a hearing in Florida on Friday concerning an assertion from the ex-president's legal team that Special Counsel Jack Smith was illegally appointed. Cannon is a Trump appointee who has frequently been accused of bias favoring the former president.
Trump's lawyers are attempting to end the documents case by removing Smith, whose investigations led to federal felony charges in Florida and Washington, D.C, while also claiming that he is acting as member of a "shadow government" and a "campaign surrogate" for President Joe Biden.
Legal experts have suggested that Cannon's decision to hold a hearing on the matter is suspect, while her choice to allow outside parties to weigh in on the case during the hearing has also been criticized as highly unusual.
However, some comments that Cannon reportedly made in court Friday appeared to cast doubt on the Trump team's arguments about Smith.
Cannon asked Trump lawyer Emil Bove to explain the "shadow government" and received no direct response, according to CNN, while Lawfare courts correspondent Anna Bower reported that the judge appeared "skeptical" of both sides in posts to X, formerly Twitter.
"Cannon grilled both Bove and [prosecutor James] Pearce on their respective arguments, focusing questions related to textual analysis of the statutes and DOJ regulations under which [Attorney General Merrick] Garland appointed Jack Smith," Bower wrote.
"Cannon at times appeared skeptical of Trump's claim that Smith was unlawfully appointed—but she also did not seem entirely convinced by the special counsel's arguments to the contrary," she added. "At one point, for example, she suggested that the special counsel's statutory analysis reflects an excessively 'malleable' reading of the Constitution's text."
Newsweek reached out to Bove and a representative for Smith via email on Friday for comment. Challenges to the legal authority of special counsels—independent prosecutors appointed by U.S. attorneys general when there are potential conflicts of interest—typically fail.
Lawyers for Hunter Biden, President Joe Biden's son, unsuccessfully attempted to get his federal guns case dismissed last month by claiming that Special Counsel David Weiss was illegally appointed.
Former Trump lawyer Ty Cobb predicted during a CNN interview on Thursday night that Cannon deciding to rule in the former president's favor would result in her removal from the case by the 11th Circuit Court of Appeals.
"The worst thing that could happen to her is that she actually does rule for Trump on this, because that would go to the 11th Circuit," Cobb told CNN's Erin Burnett. "And then, I think this petty partisan prima donna would be put in her place and they would remove her."
Newsweek reached out to Cannon via email for comment.
Rick Smith
https://www.miamiherald.com/news/nation-world/national/article289444316.html
Miami Herald
FRIDAY, JUNE 21, 2024 1:15 PM
Court That Can Remove Aileen Cannon ‘Wants Her Out’: Legal Analyst
BY SEAN O’DRISCOLL NEWSWEEK
The appeals panel overseeing Judge Aileen Cannon's court would love to have her removed from former President Donald Trump's classified documents case, a legal analyst said.
Harry Litman, a former federal prosecutor and Democrat Party supporter, said that Cannon's ruling on a potential Trump gag order could lead to an appeal. He said that the 11th Circuit Appeals Court, which covers Florida, would like to remove Cannon from the case and appoint a new judge.
However, he told CNN's Jim Acosta on Thursday that removal would lead to further delays in the case.
Trump is facing 40 federal charges over his alleged handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He is also accused of obstructing efforts by federal authorities to retrieve them. Trump has pleaded not guilty to all charges.
Newsweek contacted Trump's attorney and Cannon's office for comment on Friday.
Cannon, a Trump appointee, has been sharply criticized by legal analysts for long delays in the classified documents case.
On CNN, Litman was also critical of Cannon's full-day hearing on Friday to decide if Jack Smith should remain as prosecutor in the case. He said Cannon was having an evidentiary hearing, in which witnesses will be called to give evidence about whether Smith was legally appointed as special counsel in the case. Litman said that it should be a "straightforward case of law." "
I don't know why she's holding an evidentiary hearing. Lord only knows what evidence she wants to take," he said, noting that she is allowing external 'friend of the court' expert evidence on Trump's behalf. Certainly this is a recipe for delay."
Litman was a legal adviser to Democrat candidate John Kerry in the 2004 presidential election and has been a vocal Trump critic.
Cannon will hold a separate hearing on Monday to determine if Trump should be placed under a gag order for his comments about the FBI's execution of a search warrant at Mar-a-Lago in August 2022 that led to the indictment.
Trump claimed the FBI was willing to use lethal force against him and his family. That came after a search warrant application became public. In it, an FBI agent told the court that the agents were trained in using lethal force—a standard legal formula that is used in thousands of FBI search warrant requests a year.
Litman said that if Cannon rules in Trump's favor, it may be appealed to the 11th Circuit, which may give the appellate judges the opportunity to remove Cannon from the case.
Former Judge Jeff Swartz told Acosta on the same show that the right to appoint a special counsel has been tested in the courts "over and over and over again" and that Cannon could simply have adopted previous rulings without the need for an evidentiary hearing.
Rick Smith
New York Times
Monday, June 24, 2024, 7:13 p.m. ET
Judge Skeptical About Request to Limit Trump Statements on F.B.I.
Judge Aileen Cannon posed tough questions to prosecutors who want to bar the former president from making inflammatory remarks about the agents who searched Mar-a-Lago in the documents case.
By Alan Feuer and Eileen Sullivan
Reporting from the federal courthouse in Fort Pierce, Fla.
The federal judge overseeing former President Donald J. Trump’s classified documents case posed tough questions on Monday to prosecutors who have asked her to bar him from making inflammatory statements that might endanger any F.B.I. agents involved in the case.
At a contentious hearing in Federal District Court in Fort Pierce, Fla., the judge, Aileen M. Cannon, seemed disinclined to impose new conditions on Mr. Trump that would limit what he could say about the F.B.I.
Prosecutors had asked for the restrictions last month after Mr. Trump made blatantly false statements, claiming that federal agents were “locked & loaded ready to take me out” when they carried out a search two years ago at Mar-a-Lago, his private club and residence in Florida. The court-authorized search was a crucial element of the government’s investigation, leading to the discovery of more than 100 classified documents that Mr. Trump kept after leaving office.
The hearing was the latest clash between Mr. Trump’s lawyers and prosecutors in the office of the special counsel, Jack Smith. It centered on a knotty issue that has now cropped up in several of the former president’s legal cases: how to balance Mr. Trump’s right to attack the government — even falsely — against shielding the participants in the cases from threats of violence or harassment inspired by his incendiary remarks.
Judge Cannon put off answering that question for the moment, declining to join the other judges who have put restrictions on Mr. Trump’s speech in two of his criminal cases — in Washington and New York — and during his civil fraud trial in Manhattan.
But she expressed skepticism about the mechanism prosecutors want to use to curb Mr. Trump’s remarks in Florida.
They have asked Judge Cannon to change the terms of his bail to bar him from saying anything that might endanger agents working on the case. The judge, however, questioned whether they could show there was a “reasonable necessity” to impose the measures in order to protect the safety of the agents.
The dispute about Mr. Trump’s statements began in May when he falsely claimed on social media and in fund-raising appeals that the F.B.I. had authorized its agents to shoot him during the search of Mar-a-Lago. Prosecutors have asserted that the statements were a “grossly misleading” misinterpretation of an F.B.I. plan that actually set forth strict limitations on the use of deadly force for the agents that descended on the property.
Addressing Judge Cannon, David Harbach, one of Mr. Smith’s top deputies, said that Mr. Trump’s remarks about the F.B.I. were not only false but also dangerous. The danger, he added, was amplified by what he described as the “potent tool” of Mr. Trump’s Truth Social account, which the former president has often used to rile up millions of his supporters.
Judge Cannon, however, seemed to have a hard time discerning a direct connection between Mr. Trump’s messages and any palpable threats to agents working on the documents case. She also noted that she had already redacted the agents’ names from public filings, a measure she took to protect them against harm.
But when she seemed to question Mr. Harbach’s contention that the names of some of the agents had already been made public and that other agents had faced threats in the earlier remarks by Mr. Trump, he visibly lost his patience.
Ultimately, Judge Cannon scolded Mr. Harbach from the bench — the second time she has done so in the past two months.
“I don’t appreciate your tone,” she told him. “I think we have been here before. I expect decorum in this courtroom. If you’re not able to do that, I’m sure one of your colleagues could take your place.”
Echoing Judge Cannon’s concerns, Todd Blanche, a lawyer for Mr. Trump, noted that the government had failed to present evidence that agents in the documents case had faced any threats because of the former president’s statements.
Mr. Blanche also argued that restrictions on Mr. Trump’s speech would be particularly onerous given that he is scheduled to debate President Biden on Thursday night for the first time in this election cycle.
“It would be extremely chilling to President Trump and what he’s allowed to say,” Mr. Blanche said.
The discussion about limiting Mr. Trump’s remarks came after an earlier portion of the hearing during which Judge Cannon seemed intrigued by a separate issue: how the government has paid for the work that Mr. Smith and his team have performed over the past year and a half.
Mr. Trump’s lawyers have filed a motion to dismiss the case, claiming that Mr. Smith was improperly appointed and funded. Judge Cannon heard arguments about Mr. Smith’s appointment as special counsel on Friday.
Rick Smith
https://www.bostonglobe.com/2024/06/29/opinion/judge-aileen-cannon-trump-documents-case/
Boston Globe
Saturday, June 29, 2024, 3:00 a.m.
OPINION
Judge Aileen Cannon is slow-walking the Trump documents case
There is a way to intervene.
By Stephen Gillers and Nancy Gertner
Why is Judge Aileen Cannon slow-walking the Florida documents case against Donald Trump and others? There are three explanations, two of which are troubling and all of which call for appellate intervention.
The benign explanation is that Cannon, recognizing her inexperience, simply wants to get it right. But many lawyers and academics knowledgeable about federal criminal litigation, the indictment’s alleged facts, and the area of law encompassed by the charges doubt this is true. And for good reason.
For example, an inexperienced judge would follow precedent rather than setting days of hearings on long-settled issues, as Cannon has done in response to Trump’s challenge to the special prosecutor’s authority. Then there are the baseless motions that inexplicably remain pending, like the claim that the case should be dismissed because Joe Biden, Mike Pence, and Hillary Clinton were not prosecuted for similar conduct. Nor has Cannon addressed Trump’s presidential immunity claim even though the allegedly illegal conduct — the wrongful retention of national security documents — occurred after Trump’s presidency ended. The list goes on.
The two troubling explanations for the case’s glacial progress are that Cannon does not want to try the case, a goal that Trump’s election will achieve because he can then instruct his Justice Department to drop it; and, second, that Cannon wants to avoid a trial that could result in a Trump conviction, or the disclosure of harmful evidence, and thereby hurt Trump’s electoral chances.
Whatever the explanation, is it not possible for the Appeals Court for the 11th Circuit, which previously reversed two of Cannon’s decisions favoring Trump in this very prosecution, to investigate why the case is barely inching along? It has been assumed that the Appeals Court can do nothing because Cannon has not issued a ruling that would enable it to take jurisdiction and assign a different judge.
But that assumption is wrong. There is another way for the court to intervene. This route should rarely be used, but the importance of the case and Cannon’s perplexing management of it require action.
Anyone may file a complaint with the 11th Circuit alleging that Cannon “has engaged in ‘conduct prejudicial to the effective and expeditious administration of the business of the courts.’ ” That is the statutory standard for judicial discipline. In fact, the circuit court does not even need an outside complaint.
The chief judge, William Pryor, may proceed without one. Doing so could lead to an investigation and possibly a hearing before a panel of judges in the circuit, known as the judicial council, to determine if Cannon’s case management has prejudiced the “effective and expeditious” administration of justice. While it is possible that a confidential investigation is already underway, it is unlikely because progress in the case has, if anything, decelerated.
The finding that Cannon has engaged in conduct prejudicial to the efficient and expeditious business of the courts need not conclude that she did so for improper motives. The judicial council may assume that Cannon had the best of intentions, while also finding that the case is far too complicated for her.
And what if the judicial council does conclude that the case has been mismanaged? The same law that enables intervention says that if the judicial council finds that a complaint is valid, it “shall” take corrective action. It may ask Cannon to step aside voluntarily or, if she will not, appoint another judge to preside.
Pryor, who was nominated by George W. Bush, is a conservative judge on a conservative court. If the judicial council were to replace Cannon, it would be impossible to criticize its decision as politically motivated.
Cannon’s case management is so unusual and so beneficial to Trump that the public is left to speculate that she is auditioning for a judicial promotion or other high position if he is reelected. But one needn’t go that far. It is enough that Cannon’s conduct has made such speculation entirely plausible, which seriously damages public confidence in the courts. Sometimes even judges need an intervention, and this is one of those times.
Stephen Gillers is professor of law emeritus at New York University School of Law. Nancy Gertner is a retired US District Court judge and senior Lecturer at Harvard Law School.