'Bizarre' order warrants Judge Cannon’s removal: experts

19 March 2024

Legal experts are urging special counsel Jack Smith to file for the removal of U.S. District Judge Aileen Cannon, calling her recent order in the Trump Espionage Act/classified documents case “bizarre,” “legal inanity,” and saying it is an inaccurate interpretation of the law.

Judge Cannon “issued an unusual order late Monday regarding jury instructions at the end of the trial — even though she has not yet ruled on when the trial will be held, or a host of other issues,” The Washington Post reports. The paper adds that she “instructed lawyers to file proposed jury instructions by April 2 on two topics that are related to defense motionsto have the indictment dismissed outright.”

Calling her order an “ultimatum,” The Daily Beast‘s Jose Pagliery explains, “as she has done repeatedly, Cannon used this otherwise innocuous legal step as yet another way to swing the case wildly in favor of the man who appointed her while he was president.”

“Department of Justice Special Counsel Jack Smith must now choose whether to allow jurors at the upcoming criminal trial to peruse the many classified records found at the former president’s South Florida mansion or give jurors instructions that would effectively order them to acquit him.”

“Alternatively, Smith could appeal to the Eleventh Circuit Court of Appeals, where more experienced judges have already overturned Cannon and reined her in. But doing that will only further delay a trial that’s at least three months behind schedule, entirely by the judge’s own design,” The Daily Beast adds.

Diving a bit further into Cannon’s order, Pagliery adds: “Cannon’s evening order alerted federal prosecutors and Trump’s legal team that they ‘must engage with the following competing scenarios’ when considering whether Trump can be charged with ‘unauthorized possession’: Either ‘a jury is permitted to examine’ every record a former president swipes and claims as ‘personal’ to determine whether it is, or jurors must be told that ‘a president has sole authority… to categorize records as personal or presidential during his/her presidency.'”

Some in the legal community are vociferously denouncing Judge Cannon’s order.

Professor of law and former U.S. Attorney Joyce Vance, usually reserved in her commentary, called Cannon’s order “two pages of crazy stemming from the Judge’s apparent inability to tell Trump no when it comes to his argument that he turned the nation’s secrets into his personal records by designating them as such under the Presidential Records Act.”

She writes that each of Cannon’s “two ‘legal scenarios’ … seems to assume that the Presidential Records Act gives Trump the ability to morph national secrets into personal papers.”

“Her two scenarios involve two different ways the Presidential Records Act could help Trump out, but they’re both wrong,” Vance says, noting that “Judge Cannon misses the fact that these items were government property, not Trump’s personal possessions.”

Attorney George Conway, who has argued before the U.S. Supreme Court and received a unanimous ruling, called Cannon’s order, “the most bizarre order I’ve ever seen issued by a federal judge. What makes that all the more amazing is that the second and third most bizarre orders I’ve ever seen in federal court were also issued by Judge Cannon in this case.”

He later called for Cannon’s removal:

“Okay, I’ve seen enough. Not only should Aileen Cannon not be sitting on this case, but she should not be sitting on the federal bench at all. This is utterly nuts.”

Professor of law and former FBI General Counsel Andrew Weissmann says Cannon’s order should be the last straw:

“This is the kind of legal inanity that could lead Jack Smith to seek to mandamus Judge Cannon- ie to get the 11th Circuit appeals court to hear this and reverse her for the third time- which could also be the proverbial three strikes and you’re out.”

Harvard University Professor Emeritus Laurence Tribe, a top constitutional law scholar, agreed, responding to Weissmann: “This is outrageous. It’s what the writ of mandamus is there for.”

Minutes later, Tribe also wrote: “OMG! Judge Cannon clearly cannot be permitted to preside over this case. Whether she should be removed from the federal judiciary altogether is another matter. She probably should. Her ruling makes utter nonsense of the Presidential Records Act.”

CNN legal analyst and former U.S. Ambassador Norm Eisen, who served as the House Judiciary Committee’s co-counsel during the first trump impeachment, served up an analysis of Cannon’s order.

“Cannon seems inclined to push the case to trial but is basically asking if she can stack the deck so Trump wins,” he writes.

And he says the Special Counsel can use this to have her removed:

“If she persists in this course, special counsel Jack Smith can & will go to the 11th Circuit And while he is there, this & several other recent (threatened) blunders give him ammo to have her reversed & removed.”

Former federal prosecutor Alan Lieberman declares: “Smith must petition the 11th Circuit to remove her.”

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