Criticism of the judge overseeing former President Donald Trump’s classified documents case lacks a legal justification, experts told the Daily Caller News Foundation.
Judge Aileen Cannon, who was appointed to the bench by Trump in 2020, has repeatedly come under fire by liberal commentators and legal analysts for decisions seen as favoring the former president and intentionally slow-walking the case. But legal experts who spoke with the DCNF said she’s simply being fair and following normal procedure.
“Most of the partisan, left-wing criticism against Judge Cannon is not grounded in legal substance and instead is due to their personal dislike of the defendant, President Trump,” said John Shu, a constitutional law expert and legal commentator who served in the George H.W. Bush and George W. Bush administrations. “Judge Cannon was very well-regarded prior to her joining the bench and a dozen Democrat senators, including staunch liberals like Dianne Feinstein and Pat Leahy, voted in favor of her confirmation.”
Cannon has faced calls to recuse herself throughout the case over decisions perceived as favoring Trump, such as granting his request early on for a special master to review documents seized from Mar-a-Lago, which the 11th Circuit later reversed.
Tension grew after she issued a March 18 order on jury instructions that appeared to agree with Trump’s argument that the Presidential Records Act gives him unreviewable discretion to designate records in his possession as personal.
Special Counsel Jack Smith slammed the order as based on a “fundamentally flawed legal premise” and urged her to make her decision on the legal theory clear, threatening to appeal if she disagreed with the government’s position. Critics had likewise said it revealed her “bias” and “inexperience.”
Cannon denied on Thursday Trump’s motion to dismiss the case based on the Presidential Records Act, while offering sharp words to special counsel Jack Smith for demanding she finalize the jury instructions, a request she said was “unprecedented and unjust.” She wrote that the order on jury instructions “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.”
Criminal defense attorney and former federal prosecutor William Shipley told the DCNF her handling of the jury instructions is in the “normal course” — not unusual or a sign of inexperience.
Typically, both sides start by submitting pre-trial proposals, but the final jury instructions are based on evidence presented at trial, he said.
“What the advocates for the prosecution don’t like is that such a procedure would likely not allow the prosecution to seek appellate review of any instructions they disagree with — which is normally not an option,” he said. “That is why the Special Counsel is demanding that she address certain issues regarding the instructions now.”
Nevertheless, some critics are suggesting prosecutors move to disqualify Cannon, as retired federal judge Nancy Gertner suggested to Politico on Friday.
Former federal prosecutor Alex Little, who is inclined to agree that Cannon is inexperienced and said her handling of the case has not reflected the “best practices” of her peers, told the DCNF this does not give Smith grounds to seek her disqualification.
Yet Little said it “is very likely that he seeks appellate review of some of these issues before trial to protect his case.”
Shipley told the DCNF pretrial rulings disliked by one side do not indicate bias. He said appeals courts “only deal with claims of ‘error’ not claims of ‘I don’t like how she is handling the case.’”
“The commentators are making their claims for ‘effect’, not because their claims have a basis in the reality of federal criminal trial practice,” Shipley said.
Former federal prosecutor Joseph Moreno told the DCNF it is “amusing to hear criticism of Judge Cannon as biased from the same people who seemingly have no issues with two elected Democratic judges handling Trump’s civil and criminal cases in New York.”
“When you compound this with the fact that Democrat prosecutors sat on cases for years and are now moving heaven and earth to try them before the election, it shows that any pretense about separating the law from politics is now out the window,” he continued.
Complicating Factors
Cannon has also received criticism for “slow-walking” the case. Weeks after a hearing on pretrial issues, she has not yet set a date for the trial.
But there are a number of factors that could contribute to the case’s slow movement.
Cannon is the only active district court judge in the Fort Pierce division of the Southern District of Florida, Shu noted, and likely has only one law clerk with the clearance necessary to work on the case.
“Her other one or two law clerks still have to deal with a full non-Trump caseload plus administrative matters,” Shu told the DCNF.
Moreno said there is “no way” this kind of case could be tried before the November election under any judge.
“Any case involving classified evidence, which is governed by the Classified Information Procedures Act (CIPA), necessarily takes time due to the difficulties and sensitivities around using such materials as evidence at trial,” Moreno told the DCNF. “The complexity here is compounded by the fact that this involves a President with declassification authority and the unique application of the Presidential Records Act. Special Counsel Jack Smith nonetheless chose to prosecute this case and has nobody but himself to blame for how long it takes.”
Jesse Panuccio, former U.S. acting associate attorney general and former labor secretary of Florida, noted Cannon was “generally seen as a fair and diligent judge with a good courtroom demeanor” in her first years on the bench. Before taking the bench, he said Cannon “had stellar academic and professional credentials, with a reputation as an intelligent and hardworking attorney and Assistant United States Attorney.”
