Judge Aileen Cannon shows us what judicial corruption looks like with her help of Trump

This undermines confidence in judiciary

***UPDATE: On May 7, 2024, Judge Cannon agreed to Donald Trump’s request to indefinitely postpone the trial date in his Espionage case. That ensures this trial—as Trump wanted—will not happen before November’s election. Yet another example of Cannon’s CORRUPTION!**

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Donald Trump appointed/owned Judge Aileen Cannon should never have been permitted to preside over Trump’s Espionage case. She’s obviously intensely biased in favor of Trump.  For starters, Trump appointed her to her job just a few years before in late 2020. That creates an inherent conflict given she only has her job because of Trump. (Imagine the GOP reaction if a President Biden appointed judge was presiding over Hunter Biden’s criminal case?!)

Second, Trump is running for President again and she knows by helping him now, if he wins, Trump will reward the 43-year-old judge with a nomination to the US Court of Appeals or even the US Supreme Court. It’s apparent she’s auditioning for Trump to elevate her to a higher court if he wins.

Third, in 2022, Judge Cannon stunned the legal world by declaring that that Trump as a former president had more right than the rest of us. Thus, Cannon granted Trump’s request to appoint a Special Master to review the trove of documents the FBI seized at Trump’s home—including hundreds of classified documents—as well as slow down DOJ’s ability to review the documents seized.

The conservative 11^th Circuit of Appeals swiftly reversed Cannon’s ruling finding that Cannon “improperly exercised equitable jurisdiction.” And more importantly, the three judge panel wrote that, “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant,” adding in direct response to Cannon’s pro-Trump views, “Nor can we write a rule that allows only former presidents to do so.” (Overall, the 11^th Circuit reversed two of Cannon’s decisions regarding Trump.)

Despite that, after Trump was indicted in June 2023 for 32 counts of violating the ESPIONAGE ACT, conspiracy to obstruct justice, concealing a document in a federal investigation and other felonies, the case was assigned to Cannon. Why would Cannon, who is one of 26 judges in the Southern District of Florida, who has been on the bench less than three years and who has little experience handling criminal cases—let alone one this high profile—be assigned the case? We are told because it’s the luck of the draw of how judges are assigned. (Do you buy that?)

Everyone knew at the outset that Cannon would do all she could to help Trump.  And now finally after nearly ten months of Cannon presiding over this case, even Special Counsel Jack Smith has had enough.  In a new filing on Tuesday, Smith’s team vented their frustration with Cannon for appearing to embrace Trump’s legally ridiculous argument that the Presidential Records Act (PRA) means exactly the opposite of what it does.

The crux of Smith’s ire focuses on Cannon—who has refused to set a new trial date—recently instructing the Special Counsel and defense attorneys to write two versions of proposed jury instructions. The first scenario Cannon called for allows the jury to review records and determine which documents Trump retained are “personal” or “presidential” under the Presidential Records Act.

In the second scenario, Cannon told lawyers to draft jury instructions based on the assumption that presidents have the “sole authority” under that act to lawfully retain documents at the end of their term by declaring them as “personal” or “presidential” records, aligning with Trump’s defense in the case. As a practical matter, this second scenario would make it nearly impossible for prosecutors to secure a conviction.

This means Cannon appears to embrace Trump’s most brazen claim, namely that he cannot be prosecuted for having taken home a trove of national security documents after leaving office because he somehow has the ability to transform them into his own personal property under the Presidential Records Act.

This is wrong as a matter of law. As Smith’s team explained, “Both scenarios rest on an unstated and fundamentally flawed legal premise, namely, that the Presidential Records Act and in particular its distinction between ‘personal’ and ‘Presidential’ records, determines whether a former President is ‘authorized,’ under the Espionage Act, to possess highly classified documents and store them in an unsecure facility.”

In reality, the Presidential Records Act—enacted in 1978-- requires the return of presidential records at the end of a president's term. An outgoing President can keep their personal records, which is described under the law as documents containing “highly personal information, such as diaries, journals, and medical records.”  But a President cannot transform our nation’s most sacred military secrets into “personal records,” thus, removing nuclear secrets, information on weapon development, etc. with him upon leaving the White House.

To that very point, Smith wrote, “It would be pure fiction to suggest that highly classified documents created by members of the intelligence community and military and presented to the President of the United States during his term in office were ‘purely private.’”

He continued, "Trump’s entire effort to rely on the PRA is not based on any facts." Rather, "It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged."  

Cannon is entertaining this ludicrous argument by Trump because she is not an independent judge—rather she is trying to help Trump. It’s the same reason she is refusing to rule on a nearly two-month-old request by Smith to permit redactions to be made to several of Trump’s own filings to protect the identities of witnesses who might testify for the government at trial and even set a new trial date.

All of this is why Smith wrote it was “vitally important” that Cannon “promptly decide” the matter to preserve their ability to pursue a future appeal of erroneous jury instructions. 

Smith could move to recuse Cannon based on federal law which mandates a judge disqualifying him or herself “in any proceeding in which his impartiality might reasonably be questioned.” But the problem is that motion would first be decided by Cannon. We can assume she would deny it meaning Smith has to appeal to the 11^th Circuit. That court of appeals has decided that reassignment of a case is appropriate “where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.” 

However, as a practical matter, the bar for removal in the 11^th Circuit is high based on past cases. It could go either way. But the reality is a great deal of time will pass as this plays out, preventing the setting of a new trial date. And if the 11^th Circuit does assign a new judge, it will take that judge time to get up to speed and assign a trial date. At that point we are likely well beyond the November 2024 election. Again, that is what Trump wants and what Cannon is delivering.  

All of this is what judicial corruption looks like. And it adds to our collective frustration that Trump is once again avoiding being held accountable for his crimes.

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