Judge Cannon Should Be Removed

In the past week, two groups of Amici filed briefs with the 11th Circuit to argue that Judge Cannon should be removed from the Trump Espionage and Obstruction classified documents case. Let's review!

Greetings! As I am preparing the script for this weekend’s episode of the Jack podcast - we are set to cover two Amicus Briefs filed on behalf of Jack Smith with the 11th circuit; both of which ask the appeals court to remove Judge Cannon from the case and reassign it to a different judge in the district. I wanted to write up a primer to that episode, which will be released this Sunday featuring myself and Andrew McCabe - so let’s go over the arguments in these briefs.

The first brief was filed on behalf of the Citizens for Responsibility and Ethics in Washington (CREW), and focuses solely on the removal of Judge Cannon. The second brief was filed on behalf of 18 people and entities including George Conway, Olivia Troye, and Laurence Tribe, and focuses both on her removal and reversing her ruling dismissing the case on the grounds that the Special Counsel was appointed and funded inappropriately. For the purposes of this post - I’ll focus only on the removal aspect. Andy McCabe and I will discuss the dismissal issue argued in the second brief on the Jack podcast.

Let’s begin with the Amicus Brief filed on behalf of CREW. There are two things that give the 11th circuit the power to remove Judge Cannon. The first is 28 U.S.C. § 2106, and the second is 11th circuit precedent in United States v. Torkington.

28 U.S.C. § 2106 says: The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

That’s pretty straightforward. The court has the power to remove her from the case and reassign it to a different district judge on remand. And there’s precedent for that in the 11th circuit. The Torkington case.

In Torkington, the Government argued: Reassignment 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. United States v. White

Then we get to the Torkington factors: We consider at least three elements in determining whether to reassign a case to a different judge based on the original judge's actions at trial where there is no indication of actual bias: (1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether reassignment is appropriate to preserve the appearance of justice; (3) whether reassignment would entail waste and duplication out of proportion to gains realized from reassignment.

The 11th Circuit in Torkington conlcuded the following:

After considering these elements, we conclude that this case should be reassigned to a different district judge. The judge in this case has been reversed once by this Court, and dismissed the case at the first opportunity by construing a motion for mistrial as a motion for entry of judgment of acquittal. The judge from the bench questioned the wisdom of the substantive law he had to apply and challenged the government's decision to prosecute Torkington. For example, the judge stated at various times that he felt the taxpayer had little interest in this type of suit, that this prosecution was "silly," and that it was a waste of the taxpayers' money. He also termed the prosecution a "vendetta" by Rolex Watch against the defendant. We conclude both that the trial judge has demonstrated great difficulty in putting aside his prior conclusions about the merits of this prosecution and that reassignment is necessary to preserve the appearance of impartiality.

Notice that in Torkington, the judge they removed had been reversed once. In the Trump case, if the 11th Circuit overturns her dismissal of the case, Cannon will have been reversed three times. The first two times she was reversed were part of the Special Master debacle: first when they ruled she did not have equitable jurisdiction to appoint a Special Master, and second when they reversed her denial of a stay to give Jack Smith time to appeal her ruling.

In addition to her being reversed twice already, the Amici argue two other controversies that illustrate her inability to be unbiased in the case: The Jury Instruction Controversy, and the Undue Delay Controversy.

The Jury Instruction Controversy was that crazy time she asked both parties to write jury instructions as though the Presidential Records Act actually gave Donald the ability categorize records as either personal or presidential. First, that’s not what the Presidential Records Act says, and second - even if some unsmart person thought it did say that - the PRA has nothing to do with this case. In the Special Master debacle, the 11th Circuit ruled that the classified documents belong to the government and aren’t associated with the PRA.

The Amicus Brief says: Following a heated and contentious hearing,Judge Cannon issued an order rejecting Trump’s motion to dismiss based on the PRA defense but suggesting that she might allow something similar to be raised in front of the jury during trial. She called the Government’s demand that she settle the PRA-defense issue once and for all, “prior to the presentation of trial defenses and evidence,” “unprecedented and unjust.” And she defended her decision to request the jury instructions as “a genuine attempt” to “better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”

Then there’s the Undue Delay Controversy.

…before administering the coup de grâce that ended the case, Judge Cannon failed to resolve numerous pretrial motions and issues, leading many to suspect—rightly or wrongly—that she hoped the case would meet its doom in a second Trump administration.

That “rightly or wrongly” is crucially important because it doesn’t really matter whether Judge Cannon is explicitly biased - what matters is that a large chunk of the country believes she is.

They then go on to outline her ridiculous docket, and how multiple pre-trial motions languished on the docket for months, while she held unnecessary hearings, oral arguments, and failed to delegate some of the easier motions to magistrate judges. What they don’t mention is her secret docket - where she added unnecessary time to the docket by requiring the parties to first submit recommended redactions to pre-trial briefings so those could be litigated before they filed them on the public docket. I probably would have thrown that in there.

They do point out that even though she moved at a glacial pace on pretrial motions, she moved with alacrity on dismissal, waiting only two weeks after Justice Thomas made his off-hand, non-sequitur remarks on the appointment and funding of Jack Smith in his immunity concurrence that literally no one asked for.

All of these reversals and controversies meet the Torkington factors for removal from the case. Here’s how the Amici put it:

A. Judge Cannon would have difficulty putting her previous views and findings aside on remand. A reversal here would mean that the Court has had to reverse Judge Cannon three times—each time because she reached out to adopt pro-defense practices and theories that directly contradicted longstanding law. Her rulings and other conduct create the appearance of an unshakeable conviction that subjecting a former president to ordinary criminal procedures represents an intolerable affront to his dignity. Judge Cannon’s unprecedented ruling blocking the Government from using or viewing lawfully seized evidence, coupled with her demand that the parties draft jury instructions embodying Trump’s baseless PRA defense, would suggest to a reasonable member of the public that her biases will infect and distort a trial on remand.

B. Reassignment is appropriate to preserve the appearance of justice. Even before she dismissed the case on novel grounds that ignored both statutory authority and Supreme Court precedent, Judge Cannon’s other extraordinary rulings and sluggish case administration had provoked well-founded concerns that she might be biased against the Government’s case and unable to manage that case impartially.

C. The gains realized from reassignment would outweigh any waste or duplication. Reassignment will not cause undue waste or duplication, as the case has yet to be tried—indeed, much of the district court’s pretrial work remains unfinished. And prior published opinions will help the next district judge master the essential facts and issues in the case

The second Amicus brief makes the same arguments citing 28 U.S.C. § 2106 and Torkington:

This pattern of unsupportable decisions, along with the district court’s inexplicable handling of procedural matters in this case, makes clear that Judge Cannon “has engaged in conduct that gives rise to the appearance of . . . a lack of impartiality in the mind of a reasonable member of the public.” United States v. Torkington. Amici therefore urge this Court, in addition to reversing the decision below, to exercise its supervisory authority under 28 U.S.C. § 2106 to reassign the matter to another district judge on remand.

They remind the court that they can remove her and reassign the case sua sponte - meaning they can do it without Jack Smith asking.

There are two things I didn’t see in either filing that I would have mentioned. First, the fact that two senior judges had called her early on and advised her to recuse herself from the case. That shows that it’s not only the public that thinks she might be biased - but other judges as well. Cannon refused to recuse herself, but the mere fact that other jurists thought she should step aside goes a long way toward supporting the second Torkington factor.

Also, I would have brought up her ruling to unseal witness lists, which Jack Smith called a “clear legal error” that would lead to “manifest injustice” in his motion for her to reconsider her ruling. She did eventually reverse herself on that issue, but it supports the argument that she flouts established law. Her error was that she mis-applied a higher burden on the government when they only needed to show “good cause.”

I hope you’ll listen and subscribe (it’s free) to the Jack podcast this Sunday for further analysis, and thanks so much for reading The Breakdown!

~AG