'Cannon caves': Legal experts say Judge Cannon’s latest ruling is 'a big loss for Trump'

04 April 2024

On Thursday, US District Judge Aileen Cannon ruled in favor of Department of Justice special counsel Jack Smith in striking down former President Donald Trump's motion to dismiss the charges against him under the Presidential Records Act (PRA).

While legal experts largely agree the ruling itself is good news for Smith, they're also cautioning him to not let off the gas in continuing to pursue getting a trial date before Election Day. One assumption widely shared by legal commentators was that Cannon was effectively forced into ruling against Trump, given that Smith could potentially appeal to the 11th Circuit Court of Appeals and possibly petitioned to have her removed from the case entirely.

"Cannon caves," tweeted former federal prosecutor Andrew Weissmann in response to the ruling, though he added that she was "not all that honest in doing it."

Trump's lawyers argued in their motion that the former president was allowed to keep boxes of classified documents at his Mar-a-Lago residence in Florida, asserting that the PRA allows for documents not immediately requested by the National Archives to be considered a former president's personal property. Smith disagreed, saying the documents in question were government property and that Trump's PRA protection claim was invalid.

Former federal prosecutor Joyce Vance, who was a US Attorney in former President Barack Obama's DOJ, noted that even though Cannon ruled in Smith's favor, she still mischaracterized his motion as seeking final decision on jury instructions (which typically don't come until the eve of the trial itself).

"Contrary to what the judge says in her order, Jack Smith was clearly demanding a ruling on the PRA, the one she has now made," Vance tweeted. "It's a big loss for Trump, delivered through the skillful legal maneuvering of the special counsel."

Vance opined that had Cannon ruled in Trump's favor instead, Smith could have then moved to force her recusal. Former Acting Solicitor General Neal Katyal tweeted that, in his view, Smith should still go the 11th Circuit and seek a writ of mandamus (an order from a higher court compelling a government official to do their job) since Cannon's wording in the ruling was still ambiguous. However, that remedy is typically only allowed if a petitioner can successfully demonstrate that they have no other options. Vance quote-tweeted Katyal's post and wrote that mandamus is likely not an option given that Cannon just ruled in the DOJ's favor.

Katyal's sentiment was shared by several others, including legal commentator Chris Geidner, who is publisher of the Law Dork Substack newsletter. Geidner observed that Cannon was continuing her pattern "of issuing brief orders leaving much undecided (& unexplained)," and noted that she is still "leaving the jury instructions question unresolved."

Given the pressure Smith is applying to Cannon — whom Trump appointed to her lifelong judgeship in 2020 — to demonstrate that she is acting impartially, the judge is likely sensitive to how her rulings are perceived by the government. Should Smith ultimately move to have the 11th Circuit reassign the case to a different judge, the pre-trial process would pick up where it left off. A new judge would likely schedule a trial date upon taking the case, which Cannon has so far not done.

Harvard law professor emeritus Laurence Tribe called Vance's tweets "a great guide to Judge Cannon's slippery attempt to avoid getting taken off the case by the 11th Circuit," though he felt the judge was still "preserving the option of rescuing him before a jury can find him guilty as charged."

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