Ethics experts lay out options for removing Trump-appointed judge from Mar-a-Lago documents case

12 June 2023

When the news broke that former President Donald Trump had been indicted on federal charges in connection with the U.S. Department of Justice's Mar-a-Lago documents probe, major media outlets initially reported that there were seven counts. But when the indictment was unsealed, the number of counts was revealed to be much higher: 37.

The judge who has been assigned to the case is Trump appointee Aileen Cannon. Trump's critics fear that Cannon, in light of her previous ruling in this case, will be biased in his favor.

In an article published by Slate on June 12, three experts on government ethics laws — Norman L. Eisen, Richard W. Painter, and Fred Wertheimer — lay out some possible options for removing Cannon from the case.

They note that when Trump challenged special counsel Jack Smith's probe of documents he was storing at Mar-a-Lago, Cannon "temporarily barred the Justice Department from using those records in its investigation" — a "much-maligned decision" that was "later reversed by a three-judge panel."

"To be clear, our concern is not that Judge Cannon is a Trump appointee," Eisen, Painter, and Wertheimer stress. "The conflict of interest is that she has already issued unusual and profoundly wrong decisions favoring the defendant in this case that have been severely criticized and overturned, again by conservative or Trump-appointed judges."

The ethics experts add that if Cannon won't recuse herself, Judge Cecilia Altonaga — the chief judge in her district — could reassign the case.

"We recognize that such intervention by the chief judge is not an everyday occurrence," they explain."If it doesn't happen, though, there are other options. The more likely possibility here, if the Southern District of Florida chooses not to deal with this issue, is that the 11th Circuit should be called upon to reassign the case to a different judge at the earliest opportunity."

The legal experts continue, "As the case is lodged at the trial court level and is not before the circuit at the moment, that reassignment would likely come only as part of a reversal on appeal of one of Judge Cannon's decisions…. Ultimately, Judge Cannon should do the ethical thing and recuse herself. If she chooses not to, DOJ should be watchful for the first opportunity to seek reassignment by the 11th Circuit."

Slate's article is available at this link.

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