Donald Trump arrested: Why the former president’s trial judge should take herself off the case
Quin Hillyer
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Florida federal District Judge Aileen Cannon really ought to recuse herself from the criminal trial of former President Donald Trump.
Cannon should do this not because she is duty-bound by any formal requirement of legal ethics, nor because she was appointed by Trump, and certainly not because leftist critics attack her as too conservative. Instead, she should recuse herself for prudential reasons related to public confidence in the judicial system.
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This trial is uncharted territory for the United States, involving a former president who could face the rest of his life in prison. The situation is fraught with explosive societal ramifications. In this circumstance, written rules are merely a minimum for propriety. Here, judges should consider concerns that are ethical in the broader sense of the word. It is of paramount importance that the public have as few reasons as possible to distrust the utter fairness of the trial.
Cannon, a young judge with little courtroom experience, already handled earlier legal motions during the investigation that led to Trump’s indictment. By almost any measure, she did not acquit herself well. She granted sweeping procedural requests from Trump that did not come close to standing up to scrutiny. In an unusually stark legal rebuke, a unanimous, three-judge panel of the 11th U.S. Circuit Court of Appeals overturned every aspect of Cannon’s rulings.
None of the three judges were liberals who could be expected to be antagonistic to pro-Trump rulings. One, William Pryor, is a longtime conservative stalwart on the four-person short list for Trump’s first Supreme Court nomination. The other two were Trump appointees.
The appeals judges wrote that Cannon should not even have considered Trump’s pleadings because she had no legitimate jurisdiction over the case to start with. Cannon asserted a status called “equitable jurisdiction,” which the appeals judges explained should be granted only under conditions that are “exceptional” and “anomalous.” Court precedent lays out four factors to decide if the conditions are exceptional and anomalous, but, the judges wrote, the Trump case “fail[ed] all four factors.”
They wrote that Cannon could take the case only by “drastically expand[ing]” jurisdiction (emphasis added). It would require a “radical reordering of our case law.” Therefore, “the district court [Cannon] improperly exercised equitable jurisdiction,” so “dismissal of the entire proceeding is required.”
In all, it was a particularly devastating smackdown of Cannon’s work. It left observers believing Cannon at least subconsciously had tried to bias the proceedings wildly in Trump’s favor.
Now Cannon, by luck of the draw, has been assigned the criminal trial stemming from the same investigation whose earlier procedural questions she bollixed. Of course judges sometimes err, and it is unfair to assume she would err as badly in the trial itself. And while Cannon presents no obvious financial or personal conflict of interest, which are the usual grounds for recusal, she should recognize other considerations. In such a volatile situation, a judge should go above and beyond ordinary rules governing recusal.
Unlike on the Supreme Court, on which there are no other judges who can “step in” to fill out the ordinary nine-person bench, a district court judge who recuses can easily be replaced by another judge. If Cannon remains on the case, every ruling she makes in favor of Trump, no matter how well legally justified, will be widely and wildly interpreted in the light of her earlier, pro-Trump errors.
To slightly mix metaphors, the criminal trial of a former president should look as pure as Caesar’s wife. Unfortunately and perhaps unfairly to her, Cannon cannot provide such an appearance. At age 42, she has a long bench career to come, with plenty of time to re-establish a solid reputation. To take herself off this case would be the most judicious move.