One of the many complaints against Judge Aileen “Loose” Cannon is her lack of trial experience. However, when she was a federal prosecutor, she was involved in a case, United States v Cannon, where she and her fellow prosecutors argued successfully to the circuit court to reject exactly the argument she has just accepted from Trump’s lawyers. (In the sort of ironic twist that would never sell in Hollywood, the defendant in that case also had the last name Cannon.)
Trump’s lawyers asserted “selective prosecution” by Smith and the DOJ. To bolster their case, they want extensive documents beyond the one million plus that DOJ has already turned over.
Jack Smith Critiques Judge Aileen Cannon's Mar-a-Lago Ruling (MSN):
The crux of the matter lies in Trump's legal team seeking a wide array of documents, allegedly to uncover political bias.
This is the demand that Cannon approved and that Smith is now demanding she reconsider — a necessary step prior to appealing to the eleventh circuit. Then, the MSN story continues:
Judge Cannon, appointed by Trump, previously worked as a federal prosecutor on a case that set stringent limits on such expansive legal quests.
The case involved two men arrested in a sting operation, with one challenging his conviction based on "selective prosecution." This argument was later dismissed by the 11th Circuit Court of Appeals, underscoring the substantial burden of proof required for such claims.
Smith, in citing that case, has caught Cannon in a trap of her own making:
Smith's team, in referencing this case, is seen as a tactical reminder to Judge Cannon of the legal precedent she helped establish. Legal expert Robert A. Sanders, a law professor at the University of New Haven, views this as "smart lawyering."
A Salon article (Ex-prosecutor: Court may “politely recuse” Judge Cannon after Jack Smith calls out “clear error”) predicts Smith will use this on appeal to the circuit court to get Cannon recused:
As Trump's legal team's strategy to delay the trial becomes increasingly apparent, Smith's filing pointed toward a case from Cannon's past, recalling how she worked to establish boundaries around such tactics. . . .
Smith's team last week accused Cannon of making a "clear error" by granting Trump's motion to unredact portions of their motions in discovery despite the Justice Department's concern about the safety of witnesses in the case.
They quote two experienced lawyers showing how this may play out:
Former U.S. Attorney Harry Litman warned that Cannon put herself "in a box of her own making" with the order.
"Remember, we have this ongoing drama with her," Litman told MSNBC of Cannon's odd rulings seeming to push Trump's trial until after the 2024 presidential election. "She's been slow-walking the case and she had these early sort of debacles that the 11th Circuit reversed."
"We've been wondering will she make another clear misstep that would give Smith the wherewithal to say maybe it's time to recuse her," he added.
and this, from Former federal prosecutor Andrew Weissmann (who was on Bob Mueller’s team):
"What I can tell, [sic] you as a — I have been in a prosecutor for many years — that does not get disclosed when you are doing an investigation," he added. "To me, it is so reminiscent of the same problem she had during the investigation. So, if she continues this route, it will be interesting to see whether Jack Smith gets to the 11th Circuit and whether they sort of politely recuse her, essentially, which happens when the circuit hears the case and basically says 'When we send this back, we think that the better course is for a different judge to hear it.'
The slow course of a legal proceeding is often frustrating to those involved in it, and in this case to those of us watching it. And it is something Trump (who learned how to do this from Roy Cohn) has used to his advantage many times — though previously against private litigants who cannot command the resources of the state. Jack Smith is a canny and very experienced lawyer who knows all about delaying tactics. He has to have been preparing for the one-in-four chance Cannon would get this case ever since he realized he had to bring the stolen documents case in SDFL, the district where most of the crime occurred.
The eleventh circuit previously slapped Cannon down in language rarely used by an appellate court (Column: Whew — the 11th Circuit slapped back at Trump’s wacko claim to the Mar-a-Lago documents):
The 11th Circuit’s rebuke was definitive. In a unanimous, “per curiam” opinion by two Trump-appointed judges and one Obama-appointed judge, the decision departed from Cannon’s bottom line and nearly all of her slipshod reasoning. . . .
[The ruling] sounds restrained, but — ouch — in appellate judge speak it’s basically a way of saying Cannon was nuts to reject the department’s request to stay her ruling that documents marked classified should be out of bounds for investigation.
In a similarly no-nonsense tone, the court mowed down supposition after supposition that had formed the ramshackle scaffolding of Cannon’s thinking.
Now that Smith has caught Cannon using her own prior prosecutorial experience (minimal as it was) against her, the eleventh circuit should decide it’s had enough and order her recusal.