When Judge Aileen M. Cannon presides over a hearing Friday in the former president’s case Donald TrumpIn the classified documents case, she will spend the day thinking about deeply held arguments about a secretive legal issue in an unorthodox way.
It will be the latest example of how her unusual handling of the case has now become business as usual.
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In recent months, Cannon, who was appointed by Trump during his final days as president, has made a number of decisions that have raised doubts and criticism among legal scholars following the case. Many of her statements, on a wide range of topics, have been confusing to them, often showing her willingness to give a serious hearing to far-fetched issues raised by Trump’s lawyers in his defense.
The issue that will be heard Friday in U.S. District Court in Fort Pierce, Florida, is a defense motion to dismiss charges in the case on the grounds that Jac Smiththe special counsel she filed last spring was improperly funded and appointed.
The defense has argued that Smith was not appointed to his post by the president or approved by the Senate like other federal officials, and that Attorney General Merrick Garland, who gave him the job, had no legal authority to do so on his own. doing.
Smith’s deputies have countered that under the Constitution’s Appointments Clause, agency heads like Garland are authorized to appoint “inferior officers,” such as special counsels, to act as their subordinates.
And while the subject of the hearing may seem quite technical, what’s most unusual is that it’s happening at all.
Harking back to the early 1970s, courts have repeatedly rejected attempts like Trump’s to question the legality of independent prosecutors. This includes the Supreme Court’s upholding of the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision largely focused on the issue of President Richard Nixon’s claims to the executive privilege.
Judges have also rejected attempts to undermine the work of special prosecutors such as Robert Mueller, who investigated links between Russia and Trump’s 2016 campaign, and David C. Weiss, who has filed two criminal cases against Hunter Biden, the son of President Joe Biden , to be declared invalid.
Despite this record, however, Cannon has decided to reconsider the constitutionality of Smith’s appointment — and not on the basis of written briefs, but rather during an extended hearing that will extend over two days. The procedure could go beyond the normal process of simply making arguments and could include, as the judge recently wrote, the “presentation of evidence,” although it remains unclear what evidence she was referring to.
In another unusual move, Cannon is allowing three attorneys who filed so-called amicus or friend-of-the-court briefs to each argue before her for 30 minutes. While these outside parties – known as “amici” – are typically allowed to present their cases directly to judges in appellate courts such as the Supreme Court, that is not standard practice in trial courts.
“The fact that Judge Cannon granted the amici request for oral argument appears to indicate that she is seriously considering the constitutional argument against the appointment of the special counsel,” said Joel S. Johnson, associate professor at the Pepperdine Caruso School of Law .
One of the most striking aspects of Cannon’s tenure is that she has largely ignored a common practice in the Southern District of Florida, where she sits, of judges handing routine motions to the magistrate involved in a case.
Cannon did not delegate any motions to Magistrate Judge Bruce E. Reinhart in this case. And Reinhart knows the case well, having authorized the search warrant used by the FBI two years ago when agents descended on Mar-a-Lago, Trump’s estate in Palm Beach, Florida, and removed a trove of classified material that is crucial to the case. case.
Even before Trump was indicted last June for illegally withholding classified documents after leaving office and then obstructing the administration’s repeated efforts to retrieve them, Cannon took an unusual step to unnecessarily insert himself into the case .
After the FBI searched Mar-a-Lago, it barred federal prosecutors from using any evidence collected from Trump’s estate until an independent referee searched through it for material that was privileged. That decision was quickly reversed with a stern reprimand from the appeals court sitting over her.
In recent months, Cannon has continued in much the same vein, making several mocking decisions or just as often delaying making them at all.
In February, for example, she stunned observers of the case when she agreed to let Trump’s lawyers reveal the names of several government witnesses in a filing they planned to file. Smith’s deputies, fearful for the witnesses’ safety, asked her to reconsider her decision, which she ultimately did.
A month later, the judge issued another stunning order, asking the defense and prosecution to send her draft jury instructions that appeared to adopt one of Trump’s key defenses in the case.
The order was bizarre on its face because questions about jury instructions are usually issued on the eve of trial and at that time Cannon had not yet set a trial date.
It was even stranger because the judge, by appearing to take over Trump’s defense, seemed to be pushing potential jurors to either acquit the former president or leave open the possibility that they could find him themselves by the end of the trial. procedure could acquit by declaring that the government had failed. to prove his case.
More recently, Cannon held a hearing to consider giving Trump’s two co-defendants, Walt Nauta and Carlos De Oliveira, a so-called bill of particulars, a detailed recitation of the allegations that supplements those laid out in the indictment.
Such documents are almost never provided to criminal defendants. And while Cannon ultimately denied the requests, her decision to open her courtroom for a hearing on the issue in the first place was unusual, as other district (or magistrate) judges often decide such minor pretrial matters based on court records alone. In this case, however, Cannon has made holding hearings the norm.
Last month, Cannon issued an order formally canceling the May 20 trial date in the case. Although judges have wide latitude in determining the timing of cases and generally do not have to justify their scheduling decisions, Cannon cited an odd authority for trial delays: a 2013 essay titled “The National Security Trials : A Judge’s Perspective’.
The author was TS Ellis III, a respected former lawyer who served for many years in the Eastern District of Virginia. But it was nevertheless unusual for a judge to cite an informal piece of writing as the basis for a decision rather than relying solely on court cases.
“It’s an interesting sign of the work that goes into writing these decisions,” said Tracey E. George, a professor at Vanderbilt Law School. “Or the lack of work, the lack of care.”
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