For the last few weeks, the legal and political world had its eyes on the spectacle of an effort to disqualify Fulton County District Attorney Fani Willis from the prosecution of former President Donald Trump, over his efforts to overturn the 2020 election results in Georgia.
Yet over the last six months, a slow-moving car-crash of a case has been unfolding, with a judge who seems committed to protecting the former president at every turn of the road. In that case, Judge Aileen Cannon is adjudicating the prosecution of the former president in the classified documents case in a haphazard way at best. At worst, she is doing all she can to protect the former president from facing the classified documents case before the election, if at all.
Her recent rulings—announcing she is likely to release the names of the government’s witnesses and potentially expose them to ridicule and violence, and a highly questionable decision on how she may instruct the jury should we ever get one—do not just make special counsel Jack Smith’s case more difficult. In a perverse way, the more difficult she makes it, she might actually help Smith in the end.
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Should Smith ask an appellate court to review Judge Cannon’s rulings, not only is he likely to get those decisions reversed, her actions to delay and attempt to block the effort to bring the former president to justice may end up getting her removed from the case altogether.
In many respects, we’ve been here before. Back in 2022, in a highly questionable move, Judge Cannon presided over a case challenging the FBI’s entry into Mar-a-Lago pursuant to a lawful subpoena to determine whether the former president was harboring classified documents there (he was). Her willingness to entertain such a brazen and unprecedented effort should have been laughed out of court. Instead, she intervened in that case to protect the former president.
When her interventions were appealed, the appellate court ruled that there were no grounds for such a case to proceed. They also roundly criticized the basis for the action, holding that creating an exception for a case (such as the one Trump filed) against a former president, would “defy our Nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth, or rank.’”
The case was sent back to Judge Cannon, but the appellate court—made up of three judges nominated by Republican presidents—ordered her to dismiss the case outright. The panel made clear: the case never should have been filed and no relief should have been granted by Judge Cannon.
That order to dismiss the underlying case was one filed by Trump. Here, should Smith appeal and prevail on any of the questionable decisions issued by Judge Cannon, the remedy would not include dismissal of that case.
That does not mean Smith is without recourse. Should Smith prevail, an appellate court would be well within its rights to send it back to the trial court, but unlike where it ordered Cannon to dismiss the case brought by Trump, here, it could direct that a different judge take up the matter.
And that is exactly what might happen if Judge Cannon continues to do what should seem obvious that she is doing to anyone watching this matter: she is putting her thumb on the scale in favor of the defendant over and over again.
If Judge Cannon keeps going down this road, Smith can seek an immediate appeal of any of those orders that seem to improperly hamstring his prosecution and ask the appellate court. In this instance, that would be the 11th Circuit Court of Appeals, the same court that previously overturned Cannon in her fool’s errand related to the search of Mar-a-Lago. Smith can ask the court to not just overturn those orders, but also re-assign the case to a different judge.
In the federal system, appellate courts have the authority to supervise lower court proceedings, and a federal statute, 28 U.S.C. §2106 provides as follows:
“The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review.”
It also states that an appellate court “may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”
Courts interpreting the appellate courts’ general supervisory obligations and the application of §2106 have routinely found that appellate courts can re-assign a case to a different judge, if to do so could counter-act perceived bias in the performance of the judge in the case, or even the appearance of impropriety.
This would include a judge routinely ruling in favor of one party, or imposing unreasonably light sentences, something that the 11th Circuit—again, the circuit that will hear any appeal of any of Judge Cannon’s orders—has done in the past.
Judge Cannon’s willingness to show favor for the former president may ultimately backfire and get her kicked off the case. And the case could end being assigned to a new judge—who may not be as willing to bend over backward in support of dubious claims and defenses that support Trump’s ultimate goal of delaying the case until at least past the 2024 election, if at all.
It is likely not a question of whether, but when, Cannon will completely overstep her proper role. Even then though, it might still be too late to try to bring the former president to justice before the election.
