When special counsel Jack Smith filed his appellate challenge to U.S. District Judge Aileen Cannon’s dismissal of the classified documents case, he didn’t also ask for her removal. But now a third party, the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), has jumped in to make that request of the 11th U.S. Circuit Court of Appeals.
CREW has good evidence for its argument that Cannon should be removed because of her apparent bias, but it may still be a long shot, even though the appeals court will most likely reverse her dismissal of the case.
Filed Tuesday and joined by a former federal judge and judicial ethics experts, CREW’s brief focuses on three areas:
(1) Judge Cannon’s unprecedented assertion of “equitable jurisdiction” to block the Government from using or even viewing documents seized at Mar-a-Lago pursuant to a lawful search warrant; (2) Judge Cannon’s inexplicable call for jury instructions on a spurious legal defense that would have gutted the Government’s case had it ever gone to trial; and (3) Judge Cannon’s failure over the course of one year to move the case forward in any significant way — until a one-Justice concurrence in the Supreme Court’s presidential-immunity opinion expressed approval of the novel constitutional theory that allowed her to end the case.
I’ve previously highlighted those issues, and they indeed reflect Cannon’s apparent favoritism toward the criminal defendant who appointed her to the bench. Having a less-tainted jurist preside over this historic case would serve justice.
But one of the challenges to removing Cannon may be the context in which this appeal arises — that is, in the context of her dismissing the case partly based partly on the reasoning of a sitting Supreme Court justice. As CREW’s brief recounts, after Justice Clarence Thomas went out of his way in the July 1 immunity decision to write a separate opinion questioning the constitutionality of Smith’s appointment, “In just two weeks, Judge Cannon had penned a 93-page decision abruptly dismissing the case based on the reasoning of that lone concurrence.”
To be sure, the 11th Circuit may disagree with Cannon (and, in effect, Thomas). But even in the likely event that it reverses her dismissal, it may nonetheless be an awkward fit to use her endorsement of a justice’s opinion — however wrong that opinion is — as a data point for removing her from the case, however well deserved that removal would be.
Of course, we first need to see how the circuit will rule on the underlying substance of the issue, as this appeal is just getting underway. We might not have an answer before Trump can retake the White House and get rid of the case himself. Such a scenario would underscore the degree to which Cannon’s slow walking of the case will have helped Trump tank it without facing trial. But that isn’t much help to Smith in the meantime. There’s also the bigger question of what the Supreme Court would decide if the issue of Smith’s appointment reaches the high court. It may be necessary to resolve that issue before either of Trump’s federal cases can go forward (again, that’s if he loses the presidential election and, therefore, doesn’t gain the power to dismiss them). While no other justice joined Thomas’ concurrence in the immunity case, Smith’s appointment wasn’t the issue in that appeal, so we don’t know the degree to which Thomas’ opinion is an outlier. But the fact that that’s an open question may further underscore the awkwardness of removing Cannon from the case based partly on her endorsement of a Supreme Court justice’s opinion whose validity is technically unresolved by the high court. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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