Outside Lawyers Urge 11th Circuit To Revive Docs Case And Kick Judge Cannon To The Curb

When Special Counsel Jack Smith appealed Judge Aileen Cannon’s dismissal of the Trump documents case, his goals were modest. He simply asked the 11th Circuit to affirm that, yes, special counsels are a thing, and send the case back to the trial court. He pointedly did not ask the appeals court to disqualify Judge Cannon, despite her multiple bizarre rulings and noticeable hostility to the government.

But outside amici are less modest, and yesterday two sets of them filed briefs urging the panel to kick Cannon to the curb.

The first brief, filed by former government officials, including New Jersey Governor Christie Todd Whitman, Deputy AG Donald Ayer, head of the DOJ Civil Division Stuart Gerson, FEC Chair Trevor Potter, and the omnipresent George Conway, largely engages with the merits — or total lack thereof — of Judge Cannon’s dismissal order. It gestures briefly in the direction of United States v. Torkington, 874 F.2d 1441, (11th Cir. 1989), the relevant Circuit precedent, and urges the panel “to exercise its supervisory authority under 28 U.S.C. § 2106 to reassign the matter to another district judge on remand.” It ends with a footnote gently noting that “This Court may reassign the matter sua sponte,” and citing to a Second Circuit decision.

In contrast, Citizens for Responsibility and Ethics in Washington (CREW), along with former federal judge Nancy Gertner and judicial ethicists Stephen Gillers and James Sample, came out swinging, devoting most of their brief to reading the trial judge for filth.

“If the Court reverses Judge Aileen M. Cannon’s ruling in this matter, it will be the third time in under three years that it has had to do so in a seemingly straightforward case about a former president’s unauthorized possession of government documents,” they argued.

“A third reversal now will come after Judge Cannon dismissed this case in a decision that hinged on ignoring the plain text of four federal statutes and dismissing as ‘dicta’ a landmark Supreme Court opinion confirming the Attorney General’s power to appoint a Special Counsel,” they continued. “A reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon’s many efforts to undermine and derail the prosecution of this case.”

Judge Cannon, who was confirmed to the bench after Trump had already lost the election, did her damnedest to prevent this indictment ever being filed. In 2023, she invented a new theory of jurisdiction to justify a challenge to the warrant that kicked up more than 100 classified documents stashed at the former president’s private social club in his shower, ballroom, and personal office. The Eleventh Circuit jammed a dunce cap on her and told her to knock it off, and she’s been marginally less outrageous since the case landed back on her docket. But only marginally.

Judge Cannon has repeatedly gotten confused about the difference between discovery and trial exhibits, blithely allowing Trump’s lawyers to put unredacted witness statements on the public docket at will simply by attaching them as exhibits to motions. She’s also threatening to instruct the jury that the act of stealing a document evinced the former president’s intent to declassify it and turn it into a personal record, and that such a decision could never be challenged in court — dooming the case at a point when jeopardy will have already attached, ensuring that it can never be re-tried. And, as CREW points out, she resolved basically none of the pretrial motions in the 13 months the case languished in her courtroom, suggesting that she never intended to bring it to trial at all, hoping that Trump would win in November and kill it from the Oval Office.

They conclude:

Although Judge Cannon sometimes has appeared to be forging a parallel legal universe for former presidents, there is one respect in which Trump’s unique status and global visibility ought to influence the reassignment analysis: Those factors arguably make it more important than in any prior case that “justice should not only be done, but should USCA11 Case: 24-12311 Document: 33 Date Filed: 09/18/2024 Page: 50 of 53 35 2746660 manifestly and undoubtedly be seen to be done.” White, 846 F.2d at 696 (emphasis in original).

Meanwhile, Trump asked for and received a 30-day extension on the time to turn in his homework. He’s real busy in DC where he has to huddle up in a SCIF to review classified evidence in the election interference case, they insisted. (When was the last time he was in DC?) Plus he has to explain to the Second Circuit why he’s entitled to remove his New York criminal case to federal court two months after the jury convicted him.

Trump’s reply is now due a week before the election. After which … ???

US v. Trump [11th Circuit Docket via Court Listener]

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Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.