On Judge Aileen M. Cannon

The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

162 replies
  1. TriciaOfVienna says:

    Thank you for the straightforward analysis. It is tiring to see these judgement filled articles that seem intended to provoke emotions when information is what many of us are looking for.

    • RitaRita says:

      I thought that column was a good read and a complement to what BMaz had written.

      The legal ins and outs are fascinating but I wonder if this is at the expense of national security concerns. I’ve not seen much reporting on reaction from our allies when they see boxes containing sensitive national defense information stored in a bathroom, a ballroom, and a pool storage room.

    • Taxesmycredulity says:

      Ackerman does a good job making many of the same points as bmaz. He concludes that “Ultimately, if Mr. Trump is convicted, better to have it happen before one of his appointees. That will go a long way in tamping down Mr. Trump’s and his supporters’ bogus claims of a ‘witch hunt’ and a politicized prosecution.”

      Judging by the commenters on the piece, though, his is not a popular stance. For them, the judge is on trial.

      • Introversion says:

        > That will go a long way in tamping down Mr. Trump’s and his supporters’ bogus claims of a ‘witch hunt’ and a politicized prosecution.”

        I seriously doubt that it would move most (or even a meaningful minority) of his supporters in that direction. MAGA world generally seems to be allergic to nuance or facts.

        • Wajim says:

          Quite. MAGA (and Trump) will push her onto the “RINO” tracks at the first sign of “disloyalty.” She’s got a plumb lifetime federal appointment, and a long career ahead of her, still. Would she really be ready to risk professional (and personal/social) damage to “save” Trump? Maybe, but I don’t think she’s that foolish. Consider what happened to her last time at the appellate level. Ouch. But who knows in these so interesting times . . .

        • Wajim says:

          Quite. MAGA (and Trump) will push her onto the “RINO” tracks at the first sign of “disloyalty.” She’s got a plumb lifetime federal appointment, and a long career ahead of her, still. Would she really be ready to risk professional (and personal/social) damage to “save” Trump? Maybe, but I don’t think she’s that foolish. But who knows in these so interesting times . . .

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      • abbakadabra says:

        > That will go a long way in tamping down Mr. Trump’s and his supporters’ bogus claims of a ‘witch hunt’ and a politicized prosecution.”

        Have you thought through the implications of what you are implying ?

      • Pat_from_IL says:

        I don’t think it’s really about the right wing voters. I think it’s more about the wealthy individuals who are trying to stack the courts with judges who will not hold them accountable for any crimes they might or may have committed. Co-opting the judicial system is a proven way for authoritarians to take power.

        If Judge Cannon continues to be deferent to Trump’s wishes, but he still gets convicted on these counts, then that helps to restore confidence in the courts.

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      • Connor Lynch says:

        Any time your premise is that X or Y fact will make Trump’s base of support more likely to do A or B rational thing, it’s nearly guaranteed to be wrong. If it were otherwise, then former AG Bill Barr’s Fox News Sunday appearance would have obliterated Trump’s polls.

        The whole point of their movement is that facts don’t matter. They’re not going to start mattering now—if Trump is convicted, Cannon will just become another one in a long list of people that Trump acolytes now deem “disloyal.”

  2. TREPping says:

    Thanks for this, bmaz. I agree that it is not an even handed look at Cannon. I do have a question. There is a paragraph about the crime-fraud exception to priviledge:

    “Defense lawyers are also likely to ask her to suppress as evidence against Mr. Trump notes and testimony from one of his lawyers. While another federal judge already ruled that a grand jury could get otherwise confidential lawyer communications under the so-called crime-fraud exception to attorney-client privilege, Judge Cannon will not be bound by that decision in determining what can be used in trial.”

    Is this accurate?

    • Attygmgm says:

      I heard a Parlatore interview giving their take: not only is it a different forum (DC Circuit versus 11th Circuit), it is also a different stage in the proceedings (grand jury versus trial) and that because the DC ruling concerned a grand jury there were aspects of the government’s arguments they, defense counsel, were not even permitted to see. And now the playing field is much more favorable to the defense.

      No idea what legs these arguments have, but that was the thrust of what he contended.

    • chicago_bunny says:

      It is correct. Different jurisdiction, different procedural posture, different reason for asking to apply the exception. DOJ will likely cite to the earlier decision, but it is not precedential. Judge Cannon will decide the issue based on the law and facts applicable to this case.

      • Connor Lynch says:

        Other federal courts have applied law-of-the-case doctrine to avoid reconsideration of piercing privilege for crime-fraud issues on motions in limine when those issues were already ruled on during grand jury proceedings. If Cannon approaches the issue with neutral purpose, she probably wouldn’t aim to disturb a ruling that Trump already had a full and fair opportunity to contest in the grand jury proceedings. Whether he had a full and fair opportunity to contest it, though, will depend on how proceedings we can’t see played out. If his prior appeal was denied because pre-indictment review wasn’t appropriate, then the issue should absolutely be ruled on anew.

    • timbozone says:

      This brings up another question in my mind.

      Can Trump’s defense in the current case be granted access to grand jury testimony from DC if Cannon orders it with little chance of successful appeal by DOJ? The DC circuit and the 11th aren’t in the same district…

  3. David F. Snyder says:

    How else is she supposed to get experience? She’d be an idiot to self-recuse, as Smith would be if he were to ask for recusal. I’m just trusting that Smith knows what he’s doing, as confusing as it is to those wanting to see Trump bite it for once.

    • David F. Snyder says:

      Addendum: Smith must think he has a tight case, right? Who knows what further charges may drop (e.g. Nauta flips or more-intentional TS information dispersal comes to light). And there’s J6 looming as well.

      Is it true that CIPA has some further leeway for prosecutors should they deem that a judge missed the mark?

      • bmaz says:

        Yes, there is expedited appeal. To the 11th Circuit, unfortunately. And “expedited” may, or may not, be as fast as one would hope. There is no way to know yet.

      • AlanS_08JAN2015_2208h says:


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  4. Attygmgm says:

    Also no fan of Judge Cannon but judges are inevitably tasked with making decisions. From the record before them. Which she did. Since she seems to have started from a basic error – that a former President is entitled to special status – she made a series of whoppers which the 11th Circuit Court of Appeals resoundingly sorted out.

    I’d rather she not have the case, but it is what it is, and I sense bmaz is right that Smith has deliberately chosen this forum. I am guessing he has layers of strategies that time may reveal. It has to be played from where it lays.

    • bmaz says:

      Lol, “played from where it lays” seems appropriate on the opening day of the US Open. Because there will be a lot of that at an US Open.

      • BRUCE F COLE says:

        Given Trump’s notorious proclivity to cheat at the game, it’s an ironic comment about this trial.

              • giorgino says:

                I know you hate this bmaz, but it’s lie, not lay. Sorry, I know you have more important things to do.

                [Please, can we ease up on the grammar policing? These kinds of comments aren’t focusing on the topic and they’re chewing up thread space making it difficult for readers on mobile devices to get to meaningful discourse. It’s not just bmaz who has to deal with clearing this stuff when it gets caught in moderation. /~Rayne]

                • giorgino says:

                  Rayne, I understand what you are saying. I’m sorry to make life difficult for you as well. I will refrain in future. Mea culpa.

                  [If you see bmaz complaining about it, let it go. I’m leaving these notes in your comments not just for you, by the way, but whomever else is reading along here and tempted to pile on. Thanks. /~Rayne]

      • Vinnie Gambone says:

        I hate golf, and golfers. If I am going to try to hit something it’s going to be a nail, and not much good at that either. But if sports are good for anything it’s for producing quips possibly useful in our daily challenges.

        Andy Reid ( from his iggles days ) said this, and it serves me well for sizing up my troubles:

        ” I play what the defense leaves me.”

      • Justlp34 says:

        I am curious about your mention of ABA ratings. Are they not useful? I think I remember reading that many of Trump’s nominees had bad ratings & there seemed to be much consternation about this fact at the time.

    • Rugger_9 says:

      Given SC Smith’s experience with politically charged litigation and so far tightly run investigation, I have zero doubt he’s planned for Cannon’s assignment. Whether that plan will be effective remains to be seen, but unlike Durham Smith is not an idiot or a hack.

      IIRC, bmaz’s concern is that a Miami jury will hang, unless IMHO Smith can link Defendant-1 to Castro’s regime in which case they’ll bring the ropes, so to speak.

      • PeteT0323 says:

        Interesting comment since I have been wondering to myself in which courthouse the trial will be held.

        Does the arraignment location dictate the trial location?

        That’s going to quite a daily schlep for Judge Cannon from West Palm. I HATE driving into (or out of) central city Miami anytime of the day. I-95 – even a western detour to the Palmetto to I-75 N to Sawgrass to Florida Turnpike – North sux.


        Yes – nice concise post on Judge Cannon @bmaz.

        • bmaz says:

          As to where further, including trial, proceedings would occur, have no clue. Miami is probably more secure, but who in the world knows? But, yeah, might be a pain for Cannon, though I have no idea where she really resides personally. And hope nobody else does either.

          • boatgeek says:

            I think I know the answer to this from the statements above, but is a change of venue within the district a way to encourage a change of presiding judges? If Cannon rules that all of the followon court appearances will be held in her “home” courtroom, can Smith get a new judge by requesting that procedures be held in Miami for reasons of security, access for witnesses, etc.? For that matter, would it be reasonable to have the pre-trial motions held at Cannon’s home courtroom for her convenience and the trial itself in Miami for the reasons above?

        • chicago_bunny says:

          Does the arraignment location dictate the trial location? No.

          Judges have some flexibility with location, and their colleagues on the bench help in that regard. You can see it even in the transcript of the arraignment – Magistrate Judge Goodman moved from his normal courtroom to that of Chief Judge Altonaga, which is larger. Judge Cannon may decide that it would be easier to hold some or all parts of the proceeding in Miami. That would raise some interesting questions about what is the appropriate jury pool if the trial moves.

          I once had a matter that was filed in Detroit, and the parties were based in Detroit, but the case was assigned to a judge who sat in Flint. The judge nonetheless did hold some hearings in Detroit, when it was convenient for all. We settled before dealing with how a trial might go forward.

          • PeteT0323 says:

            Thanks for the comment.

            I’ll just note for the record – and as @bmaz said – I do not know where Judge Cannon lives and hopefully no one who doesn’t need to know does either.

            She is listed out of the Ft. Pierce SDFL courthouse, but I believe most of the original Trump-search hearings were held in West Palm Beach – closer to Mar-a-Lago.

            Ft. Pierce is two counties north of Palm Beach County (Palm Beach-Martin-St. Lucie) and about 130 miles from Miami.

            West Palm is about 70 miles or so from Miami.

  5. interrobang says:

    Who are Cannon’s clerks, and how did they get there? Not the career clerks. I have a very fuzzy understanding of how law students get clerking positions, but it seems connections are important.

    • Attygmgm says:

      In the federal jurisdiction where I practice, federal judges typically have two law clerks, each serving staggered two year stints. So one is always “senior” to the other. Usually they are recent law grads with strong academic credentials. But nothing stops a judge from having a clerk keep the gig for a long time. I know two lawyers who work permanently for a federal judge.

      As opposed to the career people who work in the clerk’s office – meaning those who keep the paperwork straight. Each can be referred to as a “clerk.” Those who assist the judge are the “law clerk.”

      It is a powerful thing to get inside judicial decision-making, which is what makes clerking such a useful experience. That and watching a lot of unimpressive lawyers present things to where one quickly surmises, “well, I can do THAT.” And learning to appreciate good writing from weak writing in what lawyers submit. The quality varies enormously.

      It is great exposure for the clerk. It is a plum job for purposes of looking for your NEXT job for that reason. So they are very competitive jobs, with lots of applicants.

      Judges may hire people of like mind. But they may also hire clerks of opposing mind, very much on purpose. I suspect most hire the smartest person they find, or someone recommended by a former clerk who is now practicing law or teaching at a law school.

      Some judges are academically inclined, and relish the weeds of legal theory. Some are more seat-of-the-pants decision-makers. A federal judge I clerked for, a seat-of-the-pants-er who nevertheless had one of the best reversal rates in his circuit (meaning he got reversed LESS than others) once came off the bench after a motion argument and handed me the papers involved in that motion as he passed me, me serving in that moment as he who held the door open for the judge. “Here,” he says to me. “I a denying this woman’s motion. Tell me why.” My job, then, was to draft for him a legally supported proposed order. Once I did that, and he reviewed it, he added a first paragraph in order to, as he put it, “explain it to the press.”

      In short, the clerks are no guide to what the judge will decide.

      • bmaz says:

        Yeah, that is about exactly right from my experience. And many are famous for hiring clerks from both sides of their purported spectrum. Way too early to get a read on Cannon yet. But she will have clerks. And their eventual reputation may hang in the lurch as well as hers. We shall see.

      • FLwolverine says:

        The senior partner in the first law firm I worked for had been a law clerk for a somewhat flamboyant judge (long since dead) on the MI court of appeals. He (senior partner) told the story of carefully researching and writing an opinion for the judge, which ended with a ruling in favor of the plaintiff. The judge read it over, nodded approvingly, crossed out the last paragraph, and wrote in “Verdict for Defendant”. The judge handed it back to the clerk, saying “Nice job. Now get that typed up for my signature”. And that was that.

  6. DjangoGrappelli says:

    “The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.” I think you mean insinuating, not importuning

    • bmaz says:

      Perhaps I should have said “inferring”. But, tell me first time commenter, do you have any input to impart except bullshit grammar scolding? Did you understand the bottom line meaning? Clearly you did, because you freshly arrived on the scene to correct me.

      First time commenter grammar scolding is some of the most tiring crap that appears in our comments.

      • David F. Snyder says:

        For what it’s worth, I think your use of the word was a fine. This was not a case of Princess Bride’s “I do not think that word means what you think it means.”

    • loveyourstuff says:

      Most of us misuse words from time to time. Such common occurrences are errors in diction–not grammar. Although most of us are embarrassed to misuse a word, most of us who make these mistakes in diction are better for the correction, as your politely offered remark was intended. One of the definitions of “importune” is solicitation, as surely you know. That’s funny, which was certainly not the author’s intended effect. Some of us see the humor in our mistakes in diction; others not so much. Myself, I frequently commit malapropisms to humorous effect. I’m embarrassed, such as I was when I recently wrote “epistemological” (knowledge) when I meant “epistolary” (letter writing). I realized my mistake only after I fired off my complaint to the federal actor against whom I lodged my complaint. To err is human. I subsequently revised my complaint to reflect the intended word choice: clarity matters. Because I earned the embarrassment of my malapropism, I owned it and moved on. Marcy is gracious when readers point out an error–because clarity is important to her, as it is to Rayne, Peterr, and Ed.

      • bmaz says:

        Yeah, and I, for the most part, call petty bullshit. Glad to hear your supporting any and every other commenter here but me. Thanks for your continued support. I am more persuaded by Bartles and Jaymes than you.

        • Rayne says:

          Well that explains a lot…I’m sure Ernest and Julio are grateful for the vote of confidence. LOL

        • loveyourstuff says:

          We’re all just trying to make sense of the chaos–through clarity. Requests seeking clarity are not ad hominin attacks.

          You want support from me? I offer you this: my perception of you (note, it is merely my perception) is that because you are preternaturally defensive, as a defense attorney, you must be stellar.

          • USMA1986 says:

            Clarity? I’m not sure you realize how much nonsense bmaz and Rayne have to deal with on this site. Trust me when I say they don’t have time or patience for grammar nitpicking. If you’re trying to decide Strunk & White vs Ernest & Julio, choose claret over clarity.

          • bmaz says:

            Sadly true. Somewhere in the recesses of my mind, I still remember the initial hilarity of those commercials.

        • M Smith says:

          I’ve noticed many people (myself included) have commented on spelling, or grammatical errors etc. on this website. Thanks to you bmaz, we usually only do it once.

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        • Justlp34 says:

          Bartles & Jaymes – flashback to high school! Gateway to real drinks. Haven’t thought of those for years.

  7. SaltinWound says:

    It is concerning that she’s on record that Trump should be treated differently from other defendants. As a non-lawyer it seems odd to me that she can have that belief and proceed with the case, but I believe you when you say there’s no recourse.

    • Eichhörnchen says:

      Sure. But an advantage of her having presided over that case would be that the rebukes from the 11th circuit presumably disabused her of the notion that Trump is entitled to special treatment. Time will tell.

      • SaltinWound says:

        It seems to me like one upside of asking her to recuse is it would give her an opportunity to say if she’s learned her lesson or not, without the guesswork

        • Eichhörnchen says:

          In a system in which judges complete questionnaires, submit to an interview, or otherwise perform some sort of qualifying ritual before being allowed to take on a given case, that might make sense. As far as I know, this does not apply in our system of justice.

          I, too, am nervous about the outcome of this case. But I think it’s important to try not to fall into the abyss of distrust and suspicion that helps those like Trump thrive. Since there is nothing we can do about it, and she has yet to utter a word as to the criminal case, skepticism is still speculative, however justified by previous actions.

        • timbozone says:

          Personally, I’m looking forward to Cannon’s attempt to contain the circus that is Trump’s crimin’ life. “Corns apoppiin’, nuts aroastin’!”

    • gruntfuttock says:

      Trump’s fans/cultists think that he’s special and should be given a free ride. Me, I agree that he’s special but, precisely because of that special position of authority and influence, he, if found guilty, should be given a particularly stiff sentence because his opportunities to do wrong were so much greater and his responsibility to the nation was more than any other individual’s and he fucked everybody over to satisfy his own selfish need for affirmation.

      With great power comes great responsibility. Trump and his acolytes want the first part; if they accept that they should also accept the second (slaps own wrist, naive, you fool).

      Do I think that will happen?

      Not really, so I merely wish a plague of lighthouse keepers (https://www.youtube.com/watch?v=N-TXKdoi8WQ) upon Trump and all his spawn. Watch out for Animal on drums :-)

  8. drhester says:

    Maybe the analogy is apropos, maybe not. I’m a retired doc. If I need complex surgery and I did last year, I will and did look for someone who has not just good credentials but vast surgical experience. I’m not saying the DOJ should intervene. No. Just that with experience comes good judgement, which seems essential. Cannon does not seem to have the necessary experience.

    • Doctor Cyclops says:

      Lack of experience is never grounds for recusal. I remember in the 1980s a district judge drew some criticism [in a footnote] from the Second Circuit after he appointed a special master because he felt he lacked experience in patent and trademark law. The court wrote—I’m paraphrasing—having sworn an oath to administer justice, it is his responsibility to try the case, with the assistance of counsel, caselaw, and learned treatises.

    • gerontar says:

      I am also a doc and a lesson I learned from a colleague: “Good judgment comes from experience and experience comes from poor judgment.”

    • GSSH-FullyReduced says:

      Doc here too; just saying that our Hippocratic Oath guides us to do ‘no harm’ in our practice of medicine but Justice Cannon’s previous efforts in favor of tfg appears to breach the oath she took to be an impartial judge. Inexperience or prejudice?

    • Tech Support says:

      Experience is a powerful and valuable thing, but it is no magical elixir either. Experience can lead to both bias and complacency. It’s fairly well established that subject matter experts with a great deal of experience are more prone to careless errors. They are more likely to operate “on autopilot” and miss things. Though I’m not a clinician myself, I’m very aware of efforts in the healthcare industry to adopt High Reliability practices frequently borrowed from airlines and other industries with a proven track record of safety.

      Which gets us back to jurisprudence. Whatever pros and cons exist in the US judicial system, one thing that is clear is that decision making is highly transparent and that those decisions are routinely challenged and scrutinized. An enormous procedural structure governs everyone’s behavior in order to ensure just results at every step of the process.

      Bottom line for me is, I’m not worried about her relative level of experience in this situation. I’d be more concerned about the potential for her to use the experience and intellect she does have to more subtly advance her political ideology than she was able to accomplish the last time around.

  9. RobertS_3141 says:

    You’re really under-selling it here:

    “Based on a ruling in a short civil matter involving Trump previously”. Cannon went deep into the partisan weeds on that one, creating Trump-specific rules out of whole cloth. She invented defenses for the Trump legal team and ruled in their favor based upon defenses she herself had created. Her rulings were so terrible that even the 11th circuit slapped her down. She’s shown herself to be biased.

    I’m not sure what’s to object to here. The Times article is get the facts right – She is an unusually poorly qualified nominee who no other president would have nominated. She’s the least experienced judge in SDFL presiding over an extremely sensitive and historic case.

    I don’t know what she’s gonna do in court. Nobody really does. What she has shown so far is that she’s willing to use her power for partisan ends.

    • bmaz says:

      I addressed that.

      “She is a poorly qualified nominee”. Lol, have you seen some others? I*’m sorry, if Cannon was so “unqualified” (she was not), where were YOU when she was being considered by SJC and the Senate floor? She is qualified, even if not ideal. To say otherwise is flat out stupid. She is quite young, but not unqualified.

      • timbozone says:

        “Your two cents is well appreciated in some quarters.”

        Seriously though, it’s got to be part of Smith’s strategy to get this documents thing offloaded off the other parts of the sedition investigation. He’s given it to SDFL to handle the first indictments for this conspiracy, a conspiracy to block the the Federal government from finding out what has happened with the secrets that Trump stole. Now we await the sedition and foreign influence investigations that seem to be still rolling along in DC and possibly in SDFL too. No public indictments in either of those investigations yet (and there may be others investigations beyond those) but more and additional serious indictments could come any time in one or more other Federal jurisdictions beside Cannon’s.

    • earlofhuntingdon says:

      LOL. Your comment suggests you haven’t much familiarity with federal court nominees. Cannon’s academic and professional experience (top universities, DoJ and white show law firm) make her well qualified. Apart from the youth cadets favored by wingnut welfare programs, especially under BushCheney, she could have used more experience before being put on the bench.

      Where she is highly suspect, I believe, is in her politics. But the Senate laughably claims that that topic is off limits.

  10. Disraeli56 says:

    I am less concerned with the Judge than I am with whatever jury is eventually selected, given the demographics of the venue. A Judge’s rulings can be appealled, as far as I know a jury’s decisions can not be.

  11. Critter7 says:

    I’ve read elsewhere that Smith’s choice to bring the indictment in SDFL is likely because that is where most of the alleged criming occurred, at Mar-a-lago. To bring the case in DC would open it to venue challenge and consequent delay – and potentially to significant delay if the venue challenge were successful.

    I am not a lawyer, have no professional experience with any of this, but that simple explanation makes sense to me.

    • bmaz says:

      There is a conspiracy charge in SDFL. Everything could have have been brought under a conspiracy umbrella in DC. Delay will happen everywhere. The caterwauling about “delay” is nonsense. Smith chose his venue, now all must live with it.

      • Elvishasleftthebuilding says:

        Let’s say hypothetically that Judge Cannon decides that the trial cannot proceed until January 2025 at the earliest, due to, say the complex nature of the charges and the need to ensure that the defendant can mount an adequate defense or some other valid-sounding reason. Are there any grounds for the Justice Department to appeal that order? I suspect the answer is no to the narrow question.

  12. NaMaErA says:

    If this is true…

    “She had not previously served as any kind of judge […]”

    …her appointment seems highly suspect (to me) and likely to have been done for reasons other than the usual one (“appoint experienced and accomplished judges to lifetime appointments on the federal bench”).

    Or am I missing something? Feels like a really good place to have really high standards.

    • bmaz says:

      You are missing almost everything. A LOT of perfectly fine appointed federal judges did not have prior judicial experience. And many quite good ones. Kagan had no prior “judicial experience”. Neither did Robert Jackson, Abe Fortas, Earl Warren, William O. Douglas and any number of other SCOTUS justices. And you think that is a mandatory requirement for a common District court judgeship? Really? Where do you think people get “experience” as judges? This is absolute nonsense.

      • NaMaErA says:

        Not a lawyer. Interesting points about the judges you name. Still, isn’t there a minor league or entry-level judge job in our system? Or it’s straight into lifetime appt with zero track record? We don’t promote rural vets into Surgeon General or Medical Board jobs — this should be no different IMO.

  13. ZircZirc says:

    Just curious about this career saving language. Mr. Greenfield says recusing would help her career. Bmaz says recusing would “torpedo” her career. What do we mean by career in this case? She has a lifetime job, which at this moment pays over $220K a year. In the federal judiciary her only path up is a Circuit Judge or Supreme Court justice. In my view she’s set. Her upward path in the Govt is limited, but she’s doing ok. And I suppose she could sully her own reputation, but what repercussions could she suffer? Judges I think are worse, Kacsmaryk, for instance, are not suffering from any consequential backlash that I can see. In fact, I could envision a GOP President nominating him for SCOTUS and a GOP Senate confirming that appointment. Judge Cannon may not aim that high, but if she left the judiciary, I’m certain there are law firms/think tanks that would set her up better than her current lifetime gig.

    I hesitate commenting on a Bmaz post because I know nothing about the ins and outs of practicing law and his rhetorical phaser is rarely set on stun. But I honestly see few downsides to any action a federal judge takes. One of the things I admire about Bmaz is that he (I assume/presume he) has an obvious and deep belief in the law and in the processes built into our system of laws to protect society and the individuals within it. My view is that I desperately want to share his belief, but that I see it as a system that does favor the monied and powerful. I think back to Hunter S. Thompson’s review of Jimmy Carter’s Law Day Speech almost fifty years ago. Which brings me back to Judge Cannon’s career. I think she will preside over this trial, and Jack Smith obviously was willing to risk her presiding over it. But as she presides she can pretty much rule as she wishes (or believes, no matter how erroneous her belief is). She may get slammed or reversed or even verbally spanked by the Eleventh Circuit, but at the end she’ll still be a judge making over $220K a year.

    • Attygmgm says:

      Her job security is now defined by a standard of, “is it impeachable?” In that regard she is about as secure as can be. But judges go on to be Senators, political appointees, ambassadors, appellate judges, Supreme Court justices, well-paid lawyers, authors, etc. You name it. One can climb from that spot. Or they stay where they are, knowing they can always count on everyone laughing at their jokes. Few people enjoy as much sole power as a federal district judge within the confines of his or her own courtroom. From which both mischief and heroism may arise.

      • timbozone says:

        Not entirely. There have been Federal judges convicted of crimes and who went to jail/prison. Jail and prison has zero to do with impeachment per se. Impeachment, at the US Federal level, is about removal from office or ineligibility to serve in Federal office, jail and prison and criminal conviction is done through the normal legal processes. If convicted of a felony, it is very unlikely that any federal circuit will be giving a felon federal judge any cases to adjudicate.

  14. SelaSela says:

    There is another possible reason for Judge Cannon to recuse herself.

    Being a MAGA judge presiding over a Trump criminal case is a damn-if-I-do-damn-if-I-don’t situation. It is not just the risk of torpedoing her career by being viewed as a partisan hack. She faces an even greater risk for her future by being vilified by the MAGA crowd. No matter how hard she tries, she might end up with a guilty verdict, and would end up being remembered in the pages of history as the judge who put Trump in jail. And even much earlier, the moment she disagrees with Trumps lawyers on something consequential, she would become a MAGA-enemy.

    We’ve seen it happening over and over again. The moment someone who was seen as loyal to TFG doesn’t do what TFG expect them to do, Trump and his minions turn on them and throw them under the bus. We’ve seen what happened to Mike Pense, And here, it’s not just her career on the line. It her closest friends and family, who are probably also MAGA, that she risks loosing.

    I hope she is smart enough to see that.

    • stancat says:

      “would end up being remembered in the pages of history as the judge who put Trump in jail.””
      Or the judge who gave him a suspended sentence with a Susan Collins style excuse.

  15. TimothyB says:

    bmaz, thank you for laying out the facts and the law.

    I had a gripe with the NYT story at a political, not a legal, level. If one favors keeping the rule of law for the USA, one should write in favor of playing by the rules as written, a la bmaz.

    Disparaging federal judges a la NYT plays the game of the folks who want to end the rule of law in the USA. It is a bad thing that there are such folks, but that is not a reason to play their game.

  16. obsessed says:

    I fear (and expect) Cannon to do some combination of the following:

    1. Wait for the first motion by Trump’s team to dismiss the case, and dismiss it on whatever grounds they use for the motion (but not, as she did the first time, adding any of her own).

    2. Find ways to guarantee that the jury contains people predisposed to nullify the trial no matter how clearly Smith proves his case.

    3. Find ways to guarantee that the trial does not occur before the general election.

    4. Refuse to admit any evidence acquired via the piercing of privileges, e.g. Corcoran’s notes.

    5. In the event that Trump is convicted, sentence him to probation.

    Is there any reason why she couldn’t do any of these things?

        • earlofhuntingdon says:

          Your tinfoil hat is slipping. Cannon behaved unprofessionally in the earlier Trump civil case, bending over backwards to favor Trump. By the standards of the federal courts, she was seriously rebuked for it. But the litany of actions you list is bizarre and would not survive review by the 11th Circuit.

  17. Gnommon says:

    Well, it’s her ticket to SCOTUS, why recuse? I think and hope Smith has hedged his bet with other indictments in other jurisdictions.

    • bmaz says:

      Oh, goody. So, you hope is that Smith has unreasonably strung out charges over multiple jurisdictions? Violating every tenet of prosecutorial and judicial economy?

      • Gnommon says:

        Why so hostile? I think we can expect Cannon to be our worst nightmare. She will not have “learned a lesson”, she will do everything to get Trump acquitted.
        So, what are the options to still get Trump convicted?

        • bmaz says:

          Because I think you are full of it. That’s why.

          And, by the way, my job and desire is NOT to “get Trump convicted” it is to hope he might, but more importantly, to see it done correctly.

          If you cannot understand that, you are lost.

          • loveyourstuff says:

            “[B]ut more importantly, to see it done correctly’. I am simpatico on this one, bmaz. That there is my dose of support.

            • Rayne says:

              Go directly to a grain elevator or a known popcorn farm. I’m fortunate that we have a couple farms just down the road and I’m about to buy up 50-pound sacks*.

              Can’t buy direct? Find out who’s buying their contracts and buy from them.

              (* Not really – our local mom-and-pop veggie store has a contract with the farm. I don’t mind paying this middleman.)

  18. Izzydog says:


    Thank you for writing this, I was hoping to find something about the article here. Been around enough to know it can be a fashion risk to question you and the law, so go easy on me.

    As a non attorney I sorta get it, you go to federal court with the judge you have not the judge you wish you had…but level of experience and NYT hit piece aside, there is a question of basic competence here.

    Judge Cannon may be UofM summa cum laude (I think), but her last ruling was so preposterously wrong, so contrary to the current state of the law, so poorly reasoned, that even laypeople who took high school civics could see it, and Judge Cannon appropriately got shelled by the appeals court. They wrote at the time:

    “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

    The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.”

    If the past is any guide to the future, we might expect more such “reordering of caselaw.” And as a layperson it’s frustrating that it doesn’t seem a lot can be done about it.

    But I agree. Smith had to know this was a real possibility. And maybe there is another shoe to drop. We’ll see.

    I am curious, now that we’ve seen the indictment, do you have an opinion about Smith (you’ve expressed strong opinions about Willis and Bragg – both of whom I have no basis for opinion)?

  19. loveyourstuff says:

    “[A]n obvious and deep belief in the law and in the processes built into our system of laws to protect society and the individuals within it.” Agreed.

    Concerned that Cannon would grant the Defendant’s future dismissal motion on the basis of prosecutorial misconduct, as Parlatore has argued ad nauseum in various media outlets, I perused articles about prosecutorial misconduct as it pertains to GJ indictments. My reading offered me relief. GJ prosecutorial misconduct rarely rises to the level of a warranted dismissal, and SCOTUS has ruled on that issue in several cases to consistently grant GJ prosecutors carte blanche to investigate whomever and however. Cannon can’t do much there to grant the relief the Defendant intends to seek. As to Cannon’s decisions on classified evidence that would rule in favor of the Defendant, Jack Smith can file an interlocutory appeal under Section 7 of CIPA.

    So I’m heartened.

    And to the moderator, please don’t reply “LOL, you don’t know Jack Smith.” (Pun intended.)

  20. Capecodmercury says:

    I must admit that I do have concerns over her qualifications, above and beyond the earlier documents case. If I recall correctly she didn’t have much actual court experience prior to being named to the bench.
    That being said, one thing I wish the NYT had covered was how she has performed in the cases she did preside over, both civil and criminal. I understand that active attorneys who practice in her district might be hesitant to discuss her performance (particularly if there is chance she might be able to identify them), but it would be helpful to get a broader picture of her competence.
    In other words, was her performance in the documents case an outlier or does she have a demonstrable bias that shows in multiple cases.

    • bmaz says:

      Absolute regurgitative horse manure. Here is Cheney:

      “And Cannon, 42, has almost always sided with prosecutors on routine challenges to evidence, motions to suppress evidence by defendants and efforts to dismiss various cases.”

      Does Cheney have a law degree? No. Has Cheney ever, in his life, dealt with a federal judge in anger? In an actual court? No. Cheney’s report is even more derivative and absurd than that of the NYT. Apparently hot legal takes on Cannon, from people in the peanut gallery (and maybe that includes me) are just a clickbait thing now. I have practiced in front of newish federal judges. And they suffered me when I was a rookie not knowing nearly enough. The “discourse” on Cannon is ridiculous.

      • posaue says:

        OT – how great it is that Dale Ho was confirmed for the 2nd circuit!

        My son went to ACLU Civil Rights HS summer camp his Jr year, right after the SC census decision. Dale Ho was the keynote speaker. Those kids, to a person, thought he was THE judicial rock star. My son’s chat group is still up and working — those kids (now in college) were up all night texting about Dale Ho — they are so excited. Btw, those 10 kids in my son’s chat group registered over 2000 voters in 2022.

      • loveyourstuff says:

        bmaz, thanks for the tip on Cheney.

        I read his piece–https://www.politico.com/news/2023/06/15/aileen-cannon-criminal-trial-record-00102135.

        Did you read his entire article? He dissects Cannon’s bench experience: she appears not to be prejudiced against the government. Cheney’s piece, in this instance, is what journalism is: unbiased, factual, leaving the reader to discern the import of the evidence presented.

        All the Cannon naysayers may read Cheney’s piece and, as I did, take heart that all is not lost simply because the assignment wheel landed on Cannon.

        And as far as inexperience goes–addressing those naysayers–recall the story of the child who blurted that the emperor has no clothes. Cannon, in this allegory, is the child, and the emperor is Trump. This is not to argue that Cannon will reveal the naked truth about the documents Trump stole. I mean only to argue that Cannon will likely assign her clerks to shepardize the shite out of each nuanced argument.

  21. CovariantTensor says:

    Unless seriously disabused of it here, I will stand by my theory that Cannon will remain on the case and not throw down any more b.s. roadblocks, precisely because of a lack of desire to be tarred as a right wing nut job. Further, that S.C Smith calculated this, and that if the case goes to trial and he wins, it will be more likely to be seen by the public as legitimate in a Trump friendly state before a Trump friendly judge compared to, say, a win by Bragg in NY.

    • Epicurus says:

      Judge Cannon was called out in their overriding Special Master decision by the 11th Circuit, not for political reasons but for legal understanding and application – judging! – reasons. If Judge Cannon has any self-respect about her legal professionalism, that would have been a devastating personal blow. She will not recuse because she knows this is her real test as to what her legal standing, gravitas, and perception is going to be within that rarified community. It has little to do with political ideology.

      Smith’s problem isn’t Judge Cannon. Smith’s problems are convincing twelve jurors and what and how his own DoJ rules in the Biden classified documents case.

      • Rayne says:

        Smith’s problems are convincing twelve jurors and what and how his own DoJ rules in the Biden classified documents case.

        Oh bullshit. Don’t try and weasel in right-wing propaganda like that. It’s on the media do a better job of explaining the big differences between Biden AND PENCE with regard to documents in their possession; it’s on the public to do more than read headlines to understand neither Biden nor Pence deliberately evaded compliance with and obstructed investigations into documents in their possession, nor did either Biden or Pence conspire with others in the process of evasion and obstruction.

        • Epicurus says:

          The response is sublimely humorous. Thanks!

          Saying twelve jurors in a criminal trial is a problem for an attorney on either side of the case is like saying the sky is blue. SC Smith has to get twelve of twelve jurors to beyond a reasonable doubt. The defense has to get one juror to a reasonable doubt. I hope Trump is convicted and I hope SC Smith is uneasy going into the trial so he will be all the more prepared to get the conviction but it it is still problem for SC Smith.

          If Joe Biden is not penalized for his unauthorized possession of classified documents, the defense is given a line of defense it would never have had. It has nothing to do with right wing propaganda. It has everything to do with giving the defense in a trial a way to create doubt in a juror’s mind.

          Why sublime humor? Readers of this blog are a jury of sorts. Commenters are usually trying to convince readers of one belief or another. Your immediate default above for the jury of readers is to associate me and my comment with right wing propaganda – guilt by association. My comment is only dealing with potential trial related problems for SC Smith. So you are doing exactly what the defense is probably going to do if the situation comes to trial and if Biden goes unpunished. It is most likely going to accuse the DoJ essentially of operating from a left wing propaganda bullshit stance about how their defendant should be punished but the DoJ’s boss should not. That isn’t my argument and I don’t subscribe to it.

          It is truly sublime though. I give you that.

          • bmaz says:

            “If Joe Biden is not penalized for his unauthorized possession of classified documents, the defense is given a line of defense it would never have had. It has nothing to do with right wing propaganda. It has everything to do with giving the defense in a trial a way to create doubt in a juror’s mind.”

            Not sure how the court will deal with such an attempt, but I would very strenuously argue that discussion of that be forbidden in front of a jury under Rule 403. It is simply irrelevant whataboutism, and that is not proper.

          • Rayne says:

            You seem to think Smith’s job is to persuade a jury to believe something OUTSIDE the indictment. What’s outside the indictment is for the media and public. Smith and his team of prosecutors must concern themselves with what’s outlined in the indictment they filed.

            Trump is accused of:
            31 counts: 18 USC 793(3) – Willful Retention of National Defense Information
            1 count: 18 USC 1512(k) – Conspiracy to Obstruct Justice
            1 count: 18 USC 1512(b)(2)(A) – Withholding a Document or Record
            1 count: 18 USC 1512(c)(1) – Corruptly Concealing a Document or Record
            1 count: 18 USC 1519 – Concealing a Document in a Federal Investigation
            1 count: 18 USC 1001(a)(1) – Scheme to Conceal
            1 count: 18 USC 1001(a)(2) and 2 – False Statements and Representations

            The Special Counsel’s job is to prove beyond a reasonable doubt to the jury that Trump violated these laws.

            Biden’s name (nor Pence’s) appears nowhere in the indictment. Neither Biden or Pence are charged by Special Counsel or on trial in this case. The jury will not be instructed to consider any behavior by others not named in the indictment.

            That you worry the jury will be thinking about anything related to Biden (while ignoring Pence) says something about you and your understanding and what you want the readers here to think. And it’s bullshit in the courtroom ahead as much as it is pulling it into this thread. Stuff your “sublime humor”; don’t think I haven’t noticed this isn’t the first time you’ve tried to pull this shit here.

    • Rwood0808 says:

      I have to disagree.

      One, she’s already proven quite strongly that she’s a FedSoc/MAGA soldier. Throwing down more BS roadblocks will do nothing but strengthen her position within that circle. Two, as others have pointed out here already, there is not much in the form of consequences stopping her. Reputation, public image, shame, these things mean nothing to the RW/FS/MAGA soldiers. They wear their MAGA label with pride and FU if you label them fascist or whatever, they don’t care. With a mindset like that she views her actions benefiting trump to be nothing but a positive for herself and her career.

      She will never ask if she SHOULD do something, she will only ask if she CAN.

      Smith knows this. So his decision to indict in Floriduh and not in DC is one that I cannot figure out yet. If he does indeed have a plan to counter Cannon is it the primary plan or is it a contingency plan? And what will he counter her with?

      Part of the evidence he has is reams of communications between the players in trumps circle. Is it unrealistic to assume that some of those communications include a certain federal judge?

      • PassengerPigeon says:

        Cannon’s infamous ruling from last year notwithstanding, assuming that she’s been engaged in secret communications with Trump and his lawyers seems kind of conspiratorial and unrealistic. Is there any evidence at all for that? Even if she has the intention of presiding in a biased manner (something that’s not clear yet), it’s not like she’d need to risk secret talks to do so.

        Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “PassengerPigeon” is your second user name; you have previously commented as “ButteredToast.” Pick a name and stick with it; sockpuppeting is not permitted here. Thanks. /~Rayne]

        • ButteredToast says:

          Sorry, I’ll stick to the earlier one. I’d forgotten what it was.

          [Thanks much. /~Rayne]

        • Rwood0808 says:

          Those communications could be with her or simply about her and how she might rule in favor of them. That includes the previous rulings and the ones she is makng now.

  22. Randy Baker says:

    Based on “You take your federal judges as you get them, not as you want them,” you claim the Times was off base in asserting: “Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.”
    Just because the system works this way doesn’t mean the outcome in this case is not, as the Times is indicating, undesirable. Clarence Thomas and Sam Alioto are lifetime justices on the U.S. Supreme Court– that’s what we got. I can’t see how that shows it inappropriate to challenge the desirabililty of that circumstance.

    • bmaz says:

      Yes, I said that and meant it. You supposedly work within the law, am not sure what you are missing here. I would, frankly, prefer the outcome to be yet to be determined, and not as the NYT and, apparently you, wish to portray within less than 48 hours of arraignment. But, hey, have at it.

  23. Alan_OrbitalMechanic says:

    This is a little bit divergent of a topic but I hope I can be indulged.

    I read somewhere that the procedure for appeals changes when the rules for defense department classified information is involved. It seems that if the judge does something that the prosecution needs to appeal, the appeals court is required to do it right away, rather than scheduling a hearing weeks or months out.

    So if the judge here does something like that dumb special master maneuver to help Trump delay things, that won’t work. If she tries to suppress critical evidence to give Trump a break then that can be fixed assuming the appeals court agrees.

    Can anyone say if this is right? If true I expect judge Cannon will become very circumspect with regard to her rulings.

    • loveyourstuff says:

      As copied from https://www.law.cornell.edu/uscode/text/18a/compiledact-96-456/section-7

      18a U.S. Code § 7 – Interlocutory appeal

      (b)An appeal taken pursuant to this section either before or during trial shall be expedited by the court of appeals. Prior to trial, an appeal shall be taken within fourteen days after the decision or order appealed from and the trial shall not commence until the appeal is resolved. If an appeal is taken during trial, the trial court shall adjourn the trial until the appeal is resolved and the court of appeals (1) shall hear argument on such appeal within four days of the adjournment of the trial, excluding intermediate weekends and holidays, (2) may dispense with written briefs other than the supporting materials previously submitted to the trial court, (3) shall render its decision within four days of argument on appeal, excluding intermediate weekends and holidays, and (4) may dispense with the issuance of a written opinion in rendering its decision. Such appeal and decision shall not affect the right of the defendant, in a subsequent appeal from a judgment of conviction, to claim as error reversal by the trial court on remand of a ruling appealed from during trial.

    • Attygmgm says:

      An outstanding example of the quality of information available by following this site. Thanks for that.

    • timbozone says:

      Yes, it’s good to acknowledge that a Federal criminal trial, which this is, is a lot different from a Federal civil suit. The current criminal trial of Trump and Nauta are going to be conducted under a significantly different set of procedures than Trump’s disjointed civil suit case from last year.

  24. Curveball says:

    Agree wholly with Bmaz. In the pre-retirement past, I covered hundreds of trials and thousands of hearings in federal and state courts, mostly federal and mostly brief. Have seen how a lot of judges put their hands on the scales, subtly or grossly. (Made my bones in the Eastern District of Virginia, where I saw teams of lawyers from top NYC firms — Paul, Weiss,.. etc. in a Coke v. Pepsi antitrust case comes to mind — come in and get cut off at the knees as the judges guided the cases as they wanted.) Judge Cannon is very smart. She went way too far last year in slowing down this matter, and was upbraided by her superiors on the 11th Circuit. My pure surmise for this go-round: she will go near the boundary line, but not close enough to get chalk on her shoes. Carefully enough that though plenty of folks will be wise to what she’s doing — feeding delays rather than starving them, probably — this time what she does will be defensible. As Bmaz points out, then just a matter of which judge you get.

  25. ToldainDarkwater says:

    I’ve been trying to figure out how to best express my take on Smith for the decision to bring charges in SDFL. It is logical, but it risks drawing Cannon. However, I think Smith probably feels his case is so strong, he doesn’t care, and interference by Cannon of an inappropriate sort will make her look bad, and probably do nothing more than delay.

    As for Cannon, she is likely to be the sort of person happy to do things to delay proceedings, but not so thrilled about changing outcomes, especially when there is an expedited appeal waiting in the wings.

    In shorter terms, I think Smith’s attitude is summed up: “I’ll fight you with one arm tied behind my back! I’ll fight you with my eyes closed! You got nothin! Do you hear me? NOTHIN!”

  26. Randy Baker says:

    The crushing majority of Cannon’s decisions would be reviewed on appeal for “abuse of discretion.” What that means is that, she is entirely positioned, should she elect to do so, to systematically put her thumbs on the scales for Trump on everything from jury selection to evidentiary decisions without being reversed.

  27. LeeNLP941 says:

    Thanks for this, bmaz. Knowing nearly nothing about the law as I do, I still find myself hoping that Cannon will evaluate her thinking in some areas and grow into her appointment. Everyone has a history, and a trajectory, and Cannon is still young.

  28. timbozone says:

    Somewhat OT but I haven’t seen this discussed elsewhere…

    Can Cannon (or whomever is presiding over this case at the time) decide to separate Nauta’s trial from Trump’s, for these charges, after Nauta has been officially arraigned but before the trial starts? Also, do Federal charges of conspiracy require a joint defendant trial?

  29. Alan Charbonneau says:

    Great point that if she recuses, “it would torpedo her career”. Likewise, if she does a good job on, dare I say it, “the crime of the century”, it would be a career enhancer.

    I agree with the rest of your points. Fox was smearing Mueller from day one in case of bad news for Trump. Similarly, these hit pieces sound more like a smear campaign than an illuminating analysis,

  30. Chris Bellomy says:

    I agree with your argument, Marcy, as far as it goes. I do think that the liberal dread of Cannon is somewhat overwrought. She still needs to recuse herself, though, and here’s why.

    The law calls for recusal in the event of a public perception of bias. The problem here, though, isn’t so much with the public’s perception of Cannon, but with Trump’s. If Trump perceives that he has the judge in his pocket — and after the special master fiasco, why wouldn’t he — then he’s that much less motivated to pursue a deal with DOJ.

    I feel sure that everyone from Biden down to Smith himself agrees that the national interest would be best served by a fair plea deal in this case. The trauma of a criminal trial may not break our republic in the end, just as the Civil War didn’t, but there’s still far less damage done to the national fabric if Trump pleads out instead. Cannon having the case makes that more unlikely. That’s why she needs to recuse.

  31. Spencer Dawkins says:

    Bmaz, one thing I took from your post is that we are really not set up to deal pre-emptively with hyper-partisan justices who reflexively rule in one direction, and that our working assumption is that a judge who was called out on their ruling by a higher court (as Cannon was) is assumed to learn from that experience, and file that away when making rulings in future cases. Does that sound about right?

    I don’t have the background I need on this topic, but it does seem to me that the alternative – recognizing that a judge has made a partisan ruling, so they should never be allowed to make rulings again, is problematic, because that’s basically saying you (and your posse) can remove any judge from the bench if they make partisan rulings that are overthrown by superior courts.

    Full disclosure – I live in Texas, part of the 5th circuit courts, so it’s hard for me to make myself believe that the right thing will happen in USA v. Trump and Nauta (if that’s the right way to cite the case), but I will make every effort to believe in the rule of law from beginning to end of the cases against Trump. And your post should be giving me hope, and raising my spirits.

    Thank you.

    • bmaz says:

      Well, yes, maybe. Where judges are ideologically has always been a baked in problem, and not just in federal courts. But most adhere to basic standards. What will Cannon do? I don’t know. If you are in the 5th, do follow my friend Rafi Melkonian. He is a sane voice down there.

  32. StewVernu says:

    Totally off topic
    The Suns got Bradley Beal
    I’m thinking you should be pretty pleased

    [Thanks for updating your username to meet the 8 letter minimum. I assume that’s what you’ve done with “StewVernu” since you’ve previously commented as “Stew.” /~Rayne]

    • bmaz says:

      Not sure wanted that. But CPIII was toast and never available when it counted. The constant loss of draft picks is concerning though.

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