Watchdog groups are asking the 11th U.S. Circuit Court of Appeals to remove Judge Eileen Cannon from her role in former President Trump's classified documents case, arguing that she “made numerous efforts to undermine and obstruct the prosecution of the case.”
The report from Citizens for Responsibility and Ethics in Washington (CREW) comes as special counsel Jack Smith is appealing Cannon's ruling that determined Smith was illegally appointed and threw out the documents entirely.
CREW's brief asks that the document case be reassigned to another judge in South Florida — a request Smith has not made, but the 11th Circuit could decide on its own that the rare move is warranted.
“Even before Judge Cannon dismissed this case on novel and unsupportable grounds that ignored both statutory authority and Supreme Court precedent, her other unusual rulings and slow disposition of the case raised well-founded concerns that she may be biased against the government's case and may not be able to handle it fairly,” CREW wrote in a motion for an amicus brief filed late Tuesday.
The complaint was also filed on behalf of former federal judge Nancy Gartner and two ethics lawyers who previously raised concerns to The Hill about Cannon's potential bias.
A message left at Cannon's room was not immediately returned.
Cannon's unusual response to the case has surprised legal experts on both sides of the aisle from the start.
Already, the 11th Circuit Court of Appeals has reversed, finding that she erred when she appointed a special master to first review evidence collected in a search of Trump's Mar-a-Lago estate for items that might be protected by privilege — a delay that prevented prosecutors from moving forward with their case before the indictment was filed.
Since being randomly assigned to the case after prosecutors charged Trump with espionage and obstruction of justice, Cannon has held lengthy hearings into Trump's efforts that many legal experts view as less than legitimate, including the failure to properly appoint Smith as special counsel.
The filing also cited Cannon's “inexplicable request to brief jurors on spurious legal defenses that would undermine the government's case if it went to trial,” saying he had considered accepting Trump's arguments in his jury briefing despite not taking the trial schedule into account.
The article also noted that “For a year, Mr. Cannon was unable to move the case forward in any significant way. However, the Supreme Court's presidential immunity opinion, with a single justice voting to endorse this novel constitutional theory, brought the case to an end.”
It was a nod to Justice Clarence Thomas' off-point footnote.
In a concurring opinion in Trump's lawsuit in which he claimed immunity from prosecution, Justice Thomas, in a footnote, addressed the legality of Smith's appointment, even though that was not an issue in the lawsuit.
Judge Cannon ruled in July that Smith had been illegally appointed, casting doubt on 50 years of rulings restricting special counsels.
Smith's team argued last week that Cannon “departed from binding Supreme Court precedent, misinterpreted the law authorizing the appointment of special counsels, and failed to fully consider the longstanding history of attorneys general appointing special counsels.”
The brief also reiterates language from the Eleventh Circuit in its previous decision denying Cannon's request to appoint a special master.
The report cites some of Cannon's early comments about the case, noting the “stigma” that attaches to people facing potential charges and the court's response.
“The Court's decision comprehensively rejects Judge Cannon's view that former presidents are entitled to special protections in criminal investigations. Creating a 'special' form of equitable jurisdiction in favor of former presidents would 'violate the fundamental principle of the Nation that the law applies to all men, without regard to numbers, wealth or class,'” the brief states.
CREW's filing predicts that the appeals court will again rule against Cannon and keep Smith in the case.
“If the Supreme Court reverses Judge Eileen M. Cannon's ruling in this case, it will mark the third time in less than three years that the Court has had to overturn a seemingly simple case involving the unauthorized possession of government documents by a former president,” CREW wrote.
“But simply citing the number and frequency of reversals does not fully capture the issue. Some of Judge Cannon's decisions were so unprecedented that to affirm them would, in this Court's words, 'violate fundamental limitations of the separation of powers.'”
