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BUT REALLY, JUST FILE A MOTION TO RECUSE ALREADY  
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Joyce Vance
March 20, 2024
Civil Discourse
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_ Every federal judge is appointed by a president, and most of them
go on to set aside the affiliations that got them there. But Cannon,
at virtually every turn, has weighed in for Trump or against the
government, despite what the law requires. _

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I was willing, wrongly as it turns out, to give Judge Aileen Cannon
the benefit of the doubt when she was assigned to be the judge on
Trump’s first effort to attack the Mar-a-Lago prosecution. That
happened before he was indicted, following the execution of the search
warrant when his lawyers filed a completely unwarranted civil action
to block DOJ from using evidence they had lawfully obtained. Cannon
ruled on Trump’s behalf but was mercilessly bench-slapped by the
Eleventh Circuit, reversing her not once but twice, before DOJ got its
hands on all of the evidence and subsequently indicted Trump.

Every federal judge is appointed by a president from one party or
another, and most of them go on to set aside the affiliations that got
them there. But Cannon, at virtually every turn, has weighed in for
Trump or against the government, despite what the law required. Judges
make rulings lawyers disagree with in every case, but it’s rare for
a judge to demonstrate such sustained, unmerited bias that they should
be recused. Cannon, however, keeps ringing that bell. When she drew
the criminal case after the Special Counsel’s office indicted the
case in the Southern District of Florida, my view was that they needed
to filed a motion asking her to recuse, immediately, based on the way
she’d handled the earlier case.

Fox News took a dim view
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my commentary on MSNBC in June of 2023 following the indictment, when
I argued Judge Cannon should step aside or the Special Counsel should
move for her recusal, given the reversal of her prior rulings in
Trump’s favor that the 11th Circuit not only dismissed but
resoundingly criticized.

There’s precedent for a recusal in that setting in the Eleventh
Circuit. Although a judge's behavior in handling a case generally
doesn't create a basis for recusal, it can if a judge leans so heavily
for a defendant that it calls their objectivity in the eyes of the
public into question. In a case I handled as a prosecutor, _U.S. v.
Martin [[link removed]], _the court
ordered the district judge to step aside even though he had no actual
bias because of repeated reversals of his rulings. In light of two
reversals, it was deemed “likely that ‘the original judge would
have difficulty putting his previous views and findings aside.’" The
Eleventh Circuit has the authority
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judge in a district to reassign a case to another district judge on
that court where it finds recusal is merited.

My view at the time was that Jack Smith should move to recuse Judge
Cannon immediately, because of the risk that is now squarely in front
of us. It’s the risk that Judge Cannon will actually let the case go
to trial and then dismiss the charges against Trump or direct a
verdict in his favor in a posture where the government is unable to
appeal (because of double jeopardy) and the prosecution ends with
Trump being acquitted. Filing a motion for recusal now would almost
certainly mean the case can’t be tried ahead of the election because
of the time it would take a new judge to get up to speed and the
pendency of issues regarding the use of classified information. But it
would be better to run the risk of delay than it would be to give
Cannon the opportunity to derail the prosecution in a way that would
give her the final say over the fate of the case. In the past week
alone she’s given plenty of indication she could do just that—both
when she invited the defense to revisit their motion to dismiss on the
basis of “unconstitutional vagueness” of the statute Trump is
charged with violating and when she asked the lawyers to submit jury
instructions based on the assumption that the Presidential Records Act
gives Trump an absolute defense. Both of those arguments are specious,
but Judge Cannon continues to entertain them.

There’s plenty of evidence of Judge Cannon’s unwarranted animus
towards the government scattered across the case, beyond the rulings
that were reversed. For instance, in November of last year
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prosecutors alerted Judge Cannon that Trump’s lawyers were playing
both sides against the middle, asking her to delay his trial in front
of her because it was too close in time to his trial in the District
of Columbia, while at the same time, asking the Judge in D.C. to delay
the trial there as well. You might have expected Judge Cannon to be
upset with the defense about this, but she was not. Instead she
lambasted the prosecution for alerting her to the situation. At the
time I wrote
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Smith may well regret toughing it out instead of seeking to recuse
Cannon straight off the bat when he had the opportunity.”

A trial judge has ample opportunity to influence the outcome of a
case. They make calls about what evidence is admissible at trial, and
if a defendant is acquitted, there is no way for the government to
object to those calls. Judge Cannon could, for instance, find there is
merit to Trump’s argument that the search of Mar-a-Lago was invalid
and refuse to let the government use any of the evidence they seized,
effectively gutting the case. She could rule for Trump after all of
the evidence was in, saying the government failed to prove one or more
elements of its case. We rely on the neutrality of judges to keep the
system on an even keel. They are supposed to be objective umpires.
Fool me once, shame on you; fool me twice shame on me. I do not view
Judge Cannon as a neutral arbiter in this case.

When the Eleventh Circuit ruled against Judge Cannon previously, they
were sharply critical of the way she handled the case, going beyond
the kind of reversal where the appellate court thinks the district
judge got it wrong while acting in good faith. That’s the typical
scenario in an appeal where the trial judge gets reversed. There are
many close calls, and judges acting in good faith can disagree. But
the tenor of the Eleventh Circuit’s opinion reversing Cannon was
different, finding she lacked jurisdiction to consider Trump’s end
run around the government’s search warrant and insinuating it was
not a particularly close call. Judge Cannon’s decision was favorable
to Trump by virtue of all but ignoring the law, refusing to apply it
correctly, and rejecting the government’s position without
explaining why. On its own it was the sort of extreme error that rises
to the level of _Martin, _calling into question both whether the
judge could set aside her previous views and whether a reasonable
person would question her ability to handle the case fairly. In that
ruling, Cannon acknowledged
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decisions were “inherently impacted by the position formerly held by
the plaintiff,” i.e., that he had been the president. Her subsequent
rulings have done nothing to ameliorate the early concerns about her
ability to handle the case fairly.

If the Special Counsel’s office files a motion to recuse and Judge
Cannon declines to step aside, the rules
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her to “issue a ruling on the record, stating the grounds for
denying the request.” Jack Smith would be able to appeal. Yes, it
would be late, but in this case, better late than never. Because the
alternative will be an injustice.

Thank you for being here at Civil Discourse with me. I really
appreciate all of your comments and thoughts and your commitment to
democracy. You remind me on a daily basis that there are a lot of us
who want to see this through, and I’m grateful.

We’re in this together,

Joyce

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Joyce Vance @joycevance2

Now: Law Prof, MSNBC/NBC Legal Analyst, Podcaster Before: US Atty,
Fed'l prosecutor Always: Wife, Mom, Dogs, Cats & Chickens, Knitting

* Aileen Cannon
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* Jack Smith
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* Mar-a-Largo
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