A criminologist explains why Judge Cannon must step away from Trump trial immediately

“Can you believe Judge Cannon’s rulings? If she f----s this up, I’m telling you that Cannon’s a dead woman walking.”

With no prompting from me whatsoever — out of the blue — a freshly retired and otherwise mild-mannered electrical engineer that I have known for 50 years from western Pennsylvania opined to me this past Friday about Donald Trump’s classified documents trial.

That my friend was so completely pissed off about a federal district court proceeding in Florida tells you everything you need to know about the pivotal moment we face as a nation.

Judge Aileen Cannon, a Trump appointee, has routinely demonstrated herself to be a jurist of significant incompetence and ignorance, culminating last week when she issued an order to defense lawyers and prosecutors that, according to the Washington Post, “badly misstates the law and facts of the case.”

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Well before Cannon became the presiding judge in Trump’s classified documents and obstruction of justice case, she had been under legal scrutiny for how she handled jurisdictional discretion in the U.S. District Court for the Southern District of Florida.

So let’s step back a couple of years and move forward from there to best understand why Cannon today is not fit to preside over Trump’s case.

It all began when Cannon “let loose with a decision breathtaking in its disregard for both the law and the judicial branch’s legitimacy.”

Back in September 2022, Cannon issued two rulings on the government’s investigation into the missing documents.

One ruling was to appoint a “special master” to review the materials seized by the FBI. The other was to “temporarily enjoin” the Department of Justice from any further examination of hundreds of boxes of missing documents belonging to the National Archives and Records Administration that had been scattered about Mar-a-Lago. Trump’s winter home and country club in Palm Beach, Fla.

At the time, Amanda Marcotte, senior politics writer for Salon and author of Troll Nation: How the Right Became Trump-Worshipping Monsters Set on Rat-F-----g Liberals, America, and Truth Itself (2018), enunciated that Cannon’s “ruling employs the same logic as the Big Lie and the Capitol insurrection.”

Cannon had ruled affirmatively on Trump’s behalf in response to his lawyers filing a spurious civil action to block the Department of Justice from using evidence lawfully obtained following the execution of a FBI search warrant.

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These two rulings or orders by Cannon were the first of several controversial ones to come. They have been poorly, if not, unlawfully adjudicated with respect to both the facts and the law. Her decisions notably have included the jury being allowed to see classified documents and the names of government witnesses released to the public.

Most recently, the judge asked for proposed jury instructions from the parties that allow for the defense to assert that Trump could have declassified documents without using the normal declassification procedures where there would have been an official record.

Also, rather than ruling against Trump’s motion to dismiss the case, Cannon deferred based on some parts of the Espionage Act, which allows it to be litigated again sometime in the future.

Former U.S. President Donald Trump appears in court at the Manhattan Criminal Court in New York on Tuesday, April 4, 2023. - SETH WENIG/AFP/Getty Images North America/TNS

These rulings have been needlessly slowing down the wheels of justice for the better part of two years and a trial date has yet to be established. As Philip Rotner has written for The Bulwark, Cannon “is trying to kill the Trump documents” case “one cut at a time” as she keeps demonstrating that she may be Trump’s “last and perhaps only line of defense.”

Even before the unanimous per curiam decision by the 11th Circuit vacated her order to appoint a special master to oversee the review of the classified documents seized from Mar-a-Lago, legal observers were accusing the judge of “obstruction of justice.” These critics were also thinking out loud that Cannon has already demonstrated that she should recuse herself for cause.

The vacating of Cannon’s order was less than two weeks after Attorney General Merrick Garland had announced his appointment of Special Counsel Jack Smith on November 18, 2022, to oversee the two ongoing investigations initiated earlier by the Department of Justice.

After dragging his feet for the better part of two years, Garland — in appointing Smith — did what he should have done when he was sworn into office back on March 11, 2021, one month after the Republican Senate had “jury nullified” the impeachment of Trump for a second time.

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In any event, these two criminal cases have never been the “witch hunts” that Trump and his allies claim. Then again, the former president and his supporters may be correct that without Trump having declared himself running once again for the presidency less than 48 hours before, the special counsel appointment may never have happened.

Whatever the reality might have been, on June 8, 2023, in Florida, a federal grand jury indicted Trump. The case was randomly “reassigned” to Cannon with a one in three probability. After a “superseding indictment” was filed on August 1, Trump found himself facing 37 charges related to the illegal possession of classified documents and the obstruction of justice.

The amended indictment added three more charges alleging Trump and his two co-conspirators had sought to delete what could well be very incriminating security footage of the classified documents being moved around Mar-a-Lago and off of the property as well.

When Cannon was “bench-slapped” by the 11th Circuit many in the prosecutorial world thought that Smith should file a motion asking her to recuse. These former prosecutors and other legal commentators were all keenly aware of the downside for doing so especially in relation to delaying the case further.

Since Trump was criminally indicted, Cannon has continued to issue legally questionable and unsound rulings. Cannon’s “malfeasance” in fact has interjected an accumulation of unnecessary delays for the trial of Trump and his two co-defendants, property manager Carlos De Oliveira and bodyguard Walt Nauta.

Back in November, Cannon’s “unwarranted animus towards the government” was on full display according to former U.S. prosecutor Joyce Vance when prosecutors alerted the judge that Trump’s lawyers were “playing both sides against the middle” or gaming the system to acquire more delay. Rather than chastise the defense or at least both sides, Cannon only chastised the government.

With respect to one of the judge’s rulings early last month to “unseal the identities of two dozen potential witnesses, along with sensitive information they provided to the government,” special counsel Smith, on Feb. 8, asked for a reconsideration and stay because of a “clear error” and “manifest injustice.”

Once again legal commentators chimed in and were recommending Smith make a motion for Cannon to recuse.

After needlessly hearing oral arguments a week ago last Thursday, Cannon issued an absurdly reasoned two-page order. This ruling by the judge may very well be the straw that breaks the judge’s back so to speak.

On the one hand, Cannon rebuffed Trump’s lawyers’ argument that the central statute in the indictment, the Espionage Act, “was impermissibly vague and should be struck down entirely.”

On the other hand, the judge ruled without prejudice which means that it could be raised again at trial. Which means that either the jury or Cannon could dismiss the entire case against Trump and his co-defendants should they find grounds for doing so. If that were to occur, the government could neither appeal the decision to a higher court nor could they try the case again because of the double jeopardy clause.

With respect to the making or not making of a motion to recuse Cannon, until the most recent decisions, Smith was damned if he did make such a motion and damned if he did not.

In the former, it would mean a delay whether the motion succeeded or failed. And if it succeeded that would mean an even longer delay as the next judge would need time for getting up to speed. Which in all likelihood would push any classified documents trial to after the 2024 election. In the latter, it would mean going into trial with the possibility of losing the case all because of a f----d up ruling by the judge.

In sum, whether one thinks the judge’s rulings are bad, biased, corrupt, perplexing or simply incompetent, they are sabotaging the administration of justice and making a mockery of the rule of law.

Cannon needs to be exorcized from the USA v. Trump et al. as soon as possible.

Gregg Barak is an emeritus professor of criminology and criminal justice and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy, to be published April 1.