Judge Aileen Cannon and the Trump Criminal Case, Explained

Almost as soon as Judge Aileen Cannon was assigned to preside over the new federal criminal case against former President Donald Trump, some liberal legal commentators began urging her to recuse herself due to her perceived partiality.

Appointed to the federal bench in 2020 by Trump—who was arraigned Tuesday on charges connected to his alleged unlawful retention of classified national security documents—Cannon has faced criticism for her rulings in a related civil case last year.

How was Cannon assigned the latest case?

Cannon, who worked as a federal prosecutor for seven years before becoming a judge, was virtually unknown outside of Florida until the classified documents case thrust her into the spotlight last year. After the FBI executed a search warrant at Mar-a-Lago on August 8 to take back the classified documents Trump had not returned, Trump sued the government and requested that a “special master” examine those documents and determine whether any could be kept from federal investigators because of executive privilege or attorney-client privilege.

That civil suit, Trump v. USA, fell under the jurisdiction of the U.S. District Court’s Southern District of Florida because that’s where Mar-a-Lago is located. Similarly, since the bulk of the alleged criminal actions in the indictment took place at Mar-a-Lago, that’s where the criminal charges have been brought.

Cannon was assigned both cases at random. For efficiency’s sake, federal judges sometimes do get assigned cases related to ones they have previously overseen, but that’s not what happened here. Even though the civil and criminal classified documents cases cover some of the same events, the court apparently didn’t consider them related, presumably because the civil one was already dismissed.

“Normal procedures were followed,” the clerk of court told the New York Times. Although there are 15 full-time judges in the district, only seven full-time judges and three part-time senior judges could claim jurisdiction over the alleged crimes committed at Mar-a-Lago.

Why is Cannon controversial?

Criticisms of Cannon don’t dwell exclusively on the fact that she was appointed by Trump (along with about 28 percent of the federal judiciary, according to Pew Research). And even the fact that her rulings in Trump v. USA were later reversed by an appellate court isn’t that unusual: “Roughly speaking, one out of every six appeals prevails, so this is not unheard of for a district court judge to see things one way and then have an appellate court see it another way,” Paul Cassell, a law professor at the University of Utah and former district court judge for the District of Utah, tells The Dispatch.

Instead, calls for Cannon to recuse herself from the criminal case focus on the substance of her rulings in the civil case. For example, she granted Trump’s request for a special master before later overruling that special master’s request that the Trump team verify the accuracy of the FBI’s inventory of seized documents. Many analysts perceived those decisions as exceptionally friendly to Trump. The rulings also raised thorny separation-of-powers issues since they seemed to suggest that the judicial branch could be called upon by search warrant subjects to “block government investigations after the execution of the warrant,” in the words of the 11th Circuit Court of Appeals, which reversed Cannon’s rulings and directed her to dismiss the entire proceedings.

“This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation,” the three-judge panel wrote in its December opinion. “The answer is no.”

Thus, those arguing Cannon should recuse herself or otherwise be removed from the case say her impartiality “might reasonably be questioned.” But that doesn’t automatically mean a recusal is appropriate.

“A recusal motion requires a judge to basically say there’s something unique about a conflict that’s personal to that judge—that the judge can’t sit as a fair arbiter of the law on a matter,” a former senior Justice Department official tells The Dispatch. “And it’s just rare for a judge to say that.”

“No judge should be judged by the decisions they make in one case,” the former official adds.

How will Cannon’s decisions influence the case?

Unless she were to recuse herself, Cannon will remain on the case for its duration. And by virtue of her position as a district court judge, her rulings on procedural and evidentiary questions will shape the arc and timeline of the case before and during trial. For example, she will have discretion over what evidence is admissible—and in a case involving classified documents, that can be especially complicated. She will give instructions to the jury—and if the jury returns a guilty verdict, she will decide on sentencing.

Cannon will also have the ability to shape the case in “rare and extraordinary” ways, the former DOJ official says. For example, she could opt to dismiss the government’s case under a procedural rule that allows a judge to “consider whether the evidence is insufficient to sustain a conviction”—and if she did so before the jury’s deliberation, her decision would be unappealable.

“Every criminal defense lawyer will make a Rule 29 motion when the government rests,” the former official explains. “And there is an infinitesimally small percentage that are actually granted, either pre- or post-verdict. But the power is there.”

The implications of such a move would be seismic, and it’s unlikely to happen. “I would be as surprised in this case as I would be in any other case,” the former official adds. At any rate, the legal process in this case will take a while.