Trump-appointed judge is inflicting a 'slow death' on Mar-a-Lago documents case: analysis

20 March 2024

2024 GOP presidential nominee Donald Trump has been angrily railing against many of the judges assigned to the criminal prosecutions and civil cases he facing. But one federal judge Trump hasn't been attacking is Aileen Cannon, the Florida-based Trump appointee assigned to special counsel Jack Smith's Mar-a-Lago documents case.

Much of the criticism of Cannon has been coming from Trump's critics, who believe that she has been going out of her way to help Trump and his lawyers with their delay strategy. Cannon hasn't dismissed the case as Trump's allies would like, but it's unlikely that the case will go to trial before the presidential election.

Political/legal blogger Philip Rotner, in an article published by the conservative website The Bulwark on March 15, argued that unless Smith pushes for Cannon to be removed from the case, his prosecution is doomed.

Rotner revisits the Mar-a-Lago case in a subsequent Bulwark article published on March 19, this time stressing that Cannon is causing the prosecution to suffer a "slow death."

"It is normal in criminal proceedings for judges to request that both the prosecution and the defense propose instructions to be delivered to the jury at or near the end of the trial," Rotner explains, "but Judge Cannon's order Monday evening, (March 18) requiring the parties to submit proposed jury instructions in this case is anything but normal. Judge Cannon not only ordered the parties to submit proposed instructions, she told them that one of them should provide that Trump, and Trump alone, had the legal right to declare any and all of the documents he took from the White House as 'personal' records. Like her ruling last week putting off a decision on Trump's motion to dismiss the charges against him under the Espionage Act, her order Monday evening didn't decide the issue; it merely kicked it down the road."

Rotner continues, "And like last week's order, Monday's order was ambiguous enough to allow her plausibly to deny being in the bag for Trump — she presented the 'Trump had the right to do it' proposed instruction as only one of two 'competing scenarios' she will entertain later in the case."

The political/legal blogger, who publishes the PhilipRotner.com website, stresses that although Smith has a "damning" case against Trump, Cannon "is looking more like Trump's last and perhaps only line of defense in the case."

"Without her thumb on the scale," Rotner argues, "Smith has Trump dead to rights. But the powers of a federal judge are potent enough to ensure that the case, no matter how strong and important to the national welfare and security, will suffer a slow death."

However, Rotner warns that "removing Cannon from the case will be no easy task" if Smith decides to go that route.

According to Rotner, "The standard for recusal of a federal district judge requires a showing of actual bias or prejudice, or that the judge's impartiality might reasonably be questioned.… Neither appointment by a president nor ideological affiliation is likely to meet the standard in a case involving a president."

Rotner adds, "So, is there enough here? Unclear. There is no doubt that the record in this case is rapidly piling up with examples of Judge Cannon issuing highly questionable orders, all of which favor Trump."

Philip Rotner's full article for The Bulwark is available at this link.

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