Even after a year of exasperating proceedings that featured several breaks from normal judicial procedure and that culminated in a shock ruling dismissing the classified documents indictment against Donald Trump, prosecutors would face deeply unfavorable odds at getting Judge Aileen Cannon removed from the case if it is ever revived.
In theory, special counsel Jack Smith could ask the 11th US Circuit Court of Appeals – which oversees federal appeals from Florida – to reassign the case to a different judge as part of his appeal of Cannon’s ruling to dismiss the charges against the former president.
But several veteran attorneys who practice in that circuit told CNN that the appeals court would be unlikely to grant such a request, even though Cannon’s justification for throwing out the prosecution was widely panned by legal scholars.
“What we have here are adverse rulings and her not resolving the case quickly,” said Jon Sale, a criminal defense attorney in Florida who served on the Watergate prosecution team. “The adverse rulings are not a basis for removal, and timing is in the broad discretion of the trial court.”
That means Smith’s best possible outcome might be that the appeals court reverses Cannon’s ruling invalidating his appointment, the Supreme Court lets that stand and several months from now – assuming Trump is not elected to the White House this November – the criminal case can pick up right where it left off, in front of Cannon, a Trump-appointed judge in Fort Pierce, Florida, who has shown no eagerness to get the proceedings to trial.
“There really just is no record supporting her removal from the case. They just don’t have any malfeasance to point to,” said CNN legal analyst Michael Moore, who served as an Obama-appointed US attorney in Georgia, another state covered by the 11th Circuit. “She’s been careful to not blindly issue rulings … and that has kept the record really shallow when looking for a removal rationale.”
Cannon’s conclusion – that Congress had not given Attorney General Merrick Garland the power to appoint a special counsel like Smith and that, furthermore, Smith’s office was funded in an unlawful fashion – went against rulings from federal district and appellate judges across the country that have upheld the Justice Department’s use of other special counsels.
It also was the capstone of her highly scrutinized handling of the historic Trump case, in which she was known to drag out the pretrial proceedings, entertain long-shot legal theories offered by the former president and issue cumbersome orders that flummoxed lawyers on both sides of the case.
Well before Monday’s ruling, outside cheerleaders of the special counsel, including many Trump critics, were calling on Smith to seek Cannon’s removal from the case. But this is the first real opportunity to ask for the intervention of the 11th Circuit.
That appeals court, while conservative, previously tore apart Cannon’s handling of a 2022 lawsuit brought by Trump that sought to undermine the documents investigation, overturning her decision to appoint a “special master” to review the materials seized from Mar-a-Lago.
Justice Clarence Thomas gives Cannon additional cover
Making the calculus even more difficult for Smith is that he is appealing a ruling of Cannon’s that was meticulously written and thoroughly thought through and put forward a legal rationale that, just this month, was similarly laid out by a sitting Supreme Court justice.
At 93 pages, the new opinion was far more in depth and comprehensive than the more surface-level rulings Cannon had previously issued that showed sympathy to Trump’s arguments while rejecting his other bids to throw out the case.
“I don’t think this rises to the level of an order that the court would necessitate reassignment to another judge,” said Jon May, a Florida criminal defense attorney who called Cannon’s opinion dismissing the case “wrong” but “not bonkers.”’
Cannon’s ruling followed arguments laid out by Justice Clarence Thomas in a concurrence he wrote in the Supreme Court’s presidential immunity case, in which the conservative majority said that Trump had some immunity in Smith’s separate case alleging 2020 election subversion.
None of Thomas’ eight colleagues signed on to his solo concurring opinion, as Smith noted in court filings last week arguing to Cannon that the concurrence should not bear on the classified documents case.
Thomas, it’s worth noting, oversees emergency matters arising out of the 11th Circuit – something that appellate court will be “mindful” of when it handles Smith’s appeal, according to CNN legal analyst Michael Moore.
“Abuse of discretion is a typical appellate standard of review,” Moore said, referring to the standard the appeals court would likely use to reverse Cannon’s dismissal ruling, “but not a reason for removal.”
Little precedent to look at
Cannon has no doubt been antagonistic toward the special counsel’s classified documents case.
She’s taken swipes at the Smith team in previous rulings and suggested that fringe Trump theories that would hamstring the prosecution could play a role in an eventual trial. The way she has managed her docket has kept the case at a snail’s pace, playing into Trump’s strategy of delay.
However, before Monday, her decisions on major motions mostly sided with the prosecutors – even as she weaved in jabs at their tactics – and she had avoided ruling on some of the most contentious issues in the case.
While Cannon’s approach to the case has attracted criticism, the current circumstances don’t resemble past scenarios that have seen trial judges reassigned by the 11th Circuit.
“This situation is so exceedingly rare, you don’t really have precedent to look at,” May said. “You have plenty of cases where there is concern for the defendant, and there’s egregious orders and egregious behavior.”
On the occasions that a judge has been removed from a case by the 11th Circuit, it’s often because the judge has heard evidence or a sentencing recommendation that shouldn’t have been heard, according to Don Samuel, a criminal defense attorney in Georgia who wrote an in-depth book about the 11th Circuit’s criminal law jurisprudence. Or it has happened when the judge has “repeatedly” refused to comply with the appeals court’s instructions on a particular issue in a case, he said.
“But reassignment just because the district judge made an erroneous decision?” Samuel said. “That is virtually unheard of.”
CNN’s Katelyn Polantz contributed to this report.
