Some legal experts think U.S. District Judge Aileen Cannon could be replaced by an appeals court if special counsel Jack Smith seeks her removal from former President Donald Trump’s classified documents case.
“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,” Ray Brescia, a professor at Albany Law School and former district court clerk, wrote at The Daily Beast.
Cannon in recent rulings said she would likely release the names of the special counsel’s witnesses, drawing alarm from Smith’s team, and issued a “bizarre” order regarding potential jury instructions that could tilt the scales to benefit Trump, who appointed her.
“In a perverse way, the more difficult she makes it, she might actually help Smith in the end,” Brescia wrote. “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.”
While the 11th Circuit Court of Appeals has previously overruled Cannon’s orders in the case but her “willingness to show favor for the former president may ultimately backfire and get her kicked off the case,” Brescia wrote.
“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,” he added.
Former Mueller prosecutor Andrew Weissmann wrote that Cannon’s order asking for competing jury instructions from Trump’s lawyers and Smith’s team is the “kind of legal inanity that could lead Jack Smith to seek to mandamus Judge Cannon- ie to get the 11th Circuit appeals court to hear this and reverse her for the third time- which could also be the proverbial three strikes and you're out.”
Attorney Philip Rotner wrote at The Bulwark that prior to Cannon’s recent orders, many legal experts believed the “record was still too thin to remove her from the case.”
“But with every move she makes for Trump in defiance of reason, justice, and precedent, the argument for reassigning the case grows stronger,” he wrote, while warning that “moving against Cannon based on the current record risks failure. Waiting until she makes a single ruling so bad that it virtually requires removal risks waiting until it’s too late.”
“While it’s unlikely, it seems to me Cannon’s latest order is sufficiently bonkers that Jack Smith might at least entertain the thought of a mandamus motion,” tweeted attorney Robert Kelner. “I doubt he’ll do it. But he’s got to be thinking about it.”
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