When Judge Aileen M. Cannon presides over a Friday hearing on former President donald trumpIn the case of confidential documents, she will spend the day considering well-known arguments about a mysterious legal issue in an unorthodox way.
It will be the latest example of how her unusual handling of the case has become business as usual.
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In recent months, Cannon, who was appointed by Trump in his final days in office, made a series of decisions that raised doubts and criticism among legal experts who followed the case. Many of his rulings, on a wide range of topics, have been confusing to them, often evincing his willingness to grant a serious hearing to absurd questions that Trump’s lawyers have raised in his defense.
The issue that will be argued Friday in U.S. District Court in Fort Pierce, Florida, is a defense motion to dismiss the charges in the case, claiming that Jack Smiththe special counsel who introduced them last spring was improperly funded and appointed.
The defense argued that Smith was not appointed to the position by the president nor approved by the Senate like other federal officials, and that Attorney General Merrick Garland, who gave him the position, did not have the legal power to do so on his own.
Smith’s deputies countered that under the Constitution’s Appointments Clause, agency heads like Garland are authorized to appoint “inferior officers” as special advisers to act as their subordinates.
And while the subject matter of the hearing may seem quite technical, what’s more unusual is that it’s happening at all.
Since the early 1970s, courts have repeatedly rejected efforts like Trump’s to challenge the legality of independent prosecutors. These included the fact that the Supreme Court upheld the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision that largely focused on the issue of President Richard Nixon’s claims of executive privilege.
The justices also moved to invalidate the work of special counsels such as Robert Mueller, who examined links between Russia and the 2016 Trump campaign, and David C. Weiss, who brought two criminal cases against Hunter Biden, the son of President Joe Biden. Biden.
Despite this record, however, Cannon decided to consider the constitutionality of Smith’s appointment again – and not based on the merits of written petitions, but rather in a broad hearing that will extend over two days. The process could go beyond the normal process of merely presenting arguments and could include, as the judge recently wrote, the “presentation of evidence,” although it is not yet clear what evidence she was referring to.
In another unusual move, Cannon is allowing three lawyers who filed what are known as amicus or friend-of-the-court briefs to argue in front of her for 30 minutes each. Although these outside parties – referred to as “amici” – are generally allowed to present their case directly to judges in appeals courts like the Supreme Court, this is not standard practice in lower courts.
“The fact that Judge Cannon granted the amici request for oral argument appears to suggest 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 largely ignored a common practice in the Southern District of Florida, where she sits, of trial judges routinely handing over motions to the magistrate judge attached to a case.
Cannon did not delegate any motions to the judge in this case, Bruce E. Reinhart. And Reinhart knows the case well, having approved the search warrant used by the FBI two years ago when agents raided Trump’s Mar-a-Lago estate in Palm Beach, Florida, and took away a trove of critically classified material. for the case. case.
Even before Trump was indicted last June on charges of illegally withholding classified documents after leaving office and obstructing the government’s repeated efforts to recover them, Cannon took the unusual step of needlessly inserting himself into the case.
After the FBI searched Mar-a-Lago, it prohibited federal prosecutors from using any evidence gathered from Trump’s estate until an independent referee examined it for privileged materials. That ruling was quickly reversed with a stern rebuke from the governing appeals court.
Over the past few months, Cannon has continued in the same vein, making several questionable decisions or postponing them just as often.
In February, for example, she surprised observers of the case when she agreed to allow Trump’s lawyers to reveal the names of several government witnesses in a case they planned to bring. Smith’s representatives, fearing for the safety of witnesses, asked her to reconsider her decision, which she ultimately did.
A month later, the judge issued another perplexing order, asking the defense and prosecution to send their draft jury instructions that appeared to adopt one of Trump’s main defenses in the case.
The order was bizarre because issues related to jury instructions are usually discussed on the eve of trial, and at that time, Cannon had not yet set a trial date.
It was even stranger because, by appearing to adopt Trump’s defense, the judge seemed to be urging any potential juror to acquit the former president or leaving open the possibility that she herself might acquit him near the end of the process, declaring that the government had failed. to prove your case.
More recently, Cannon held a hearing to consider giving Trump’s two co-defendants, Walt Nauta and Carlos De Oliveira, what is known as a bill of particulars, a detailed recitation of the charges, supplementing those laid out in the indictment.
Such documents are almost never granted to criminal defendants. And although Cannon denied the requests, his decision to open his courtroom for a hearing on the matter was unusual, as other district judges (or magistrate judges) often decide minor issues before trial solely on the basis of filings. judicial. In this case, however, Cannon made holding hearings the norm.
Last month, Cannon issued an order formally canceling the May 20 trial date in the case. Although judges enjoy wide discretion over the timing of cases and generally do not need to justify their scheduling decisions, Cannon cited an odd authority for delaying the trial: a 2013 essay titled “The National Security Trials: A Perspective Judge”.
The author was TS Ellis III, a respected former jurist who worked for years in the Eastern District of Virginia. But even so, it was unusual for a judge to cite an informal text as the basis for a decision, rather than relying solely on legal cases.
“It’s an interesting signal about the work being done to write 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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