Eisen: Aileen Cannon Might Actually Get Herself Kicked Off the Trump Classified Docs Case [View all]

[Nevilledog]

https://slate.com/news-and-politics/2024/02/aileen-cannon-trump-classified-disqualification.html

The recent news about possible Russian space nukes reminds us that we live in a very insecure world. That is why perhaps none of Donald Trump’s four criminal cases is more troubling than the federal prosecution brought by special counsel Jack Smith for mishandling classified documents. Unfortunately, the judge handling the case, Aileen Cannon—a last-minute appointment rushed through in the waning days of the Trump administration—has proved herself to be by far the worst of the jurists overseeing these momentous cases. Her decisions during the investigative phase of the case strayed wildly from precedent, leading to brutal reversals by the U.S. Court of Appeals for the 11th Circuit. Now Smith appears to be preparing to ask that body to overturn at least one and possibly two of her decisions. In our view, while he is there on those other issues, he should also petition them to remove her from the case.

Why do we think Smith might be headed to the court of appeals? In part because he has already sought reconsideration for the latest of Cannon’s unlawful orders. This is a step that is warranted only in rare circumstances, including when a judge has made a “clear error” that led to “manifest injustice.” In this instance, at Trump’s behest, Cannon has decided to unseal the identities of two dozen potential witnesses, along with sensitive information they provided to the government. The “clear error” Smith identifies is striking: He alleges that Cannon applied the wrong legal standard in making this decision, requiring him to make a far more stringent showing than should be needed to protect these names. In his motion for reconsideration, Smith shows that the case law—including the very cases Cannon herself cited in her order—does not establish the unreasonable hurdles she wants him to clear.

In his motion for reconsideration, Smith also argues that Cannon minimizes the risk of real-world harm and witness intimidation these individuals would face. He notes that there is a “well-documented pattern in which judges, agents, prosecutors, and witnesses involved in cases involving Trump have been subject to threats, harassment, and intimidation.” Cannon’s cavalier attitude is dangerous for the potential witnesses whose identities could be revealed. As Smith asserts in his brief, “a court’s duty is to prevent harms to the witnesses or the judicial process ‘at their inception.’ ” Cannon appears willing to abdicate that duty.

In response to Smith’s reconsideration motion, Cannon ordered Trump to respond by Friday. That will set up a dramatic ruling by Cannon: Either she reverses her position—which would be an admission that she was fundamentally mistaken about the law in a way that caused “manifest injustice”—or she leaves her ruling in place, putting individuals in jeopardy and twisting the law to help Trump. At that point, Smith may have enough ammunition to seek her reassignment from the 11th Circuit.

*snip*