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(43,426 posts)
20. It's bullshit. Kirschner should know better and its shocking he doesn't
Tue May 14, 2024, 04:28 PM
May 14

First, Kirschner's argument for removal is predicated on his assumption, contrary to US legal principles, that Trump is guilty and Cannon is preventing his conviction. We might feel that way, but the courts do not start from that assumption and thus complaining that Cannon's actions are inconsistent with finding him guilty aren't going to go anywhere.

Second, if there was anyone in a position to seek Cannon's removal for misconduct, it would be Jack Smith, not a bunch of randos who may be entitled under the law to file a complaint but who aren't going to be treated seriously if they rely on social media and other published commentary, not made under oath, from third parties who are not directly involved in the case. Put another way, quotes from Salon don't mean shit, no matter who is being quoted.

Third, Kirchner's reading of the relevant statute as creating a conflict that required Cannon to recuse herself because she was appointed by Trump is inconsistent with established law and precedent. In 2022, Trump filed a lawsuit against, among others, Hillary Clinton. The case was assigned to Judge Bruce Middlebrooks, who had been appointed to the bench by Bill Clinton. In denying Trump's motion seeking recusal, Judge Middlebrooks stated that for purposes of analyzing that motion, he would equate the interests of Bill and Hilary. He demolished Trump's motion, citing numerous cases that stand for the principle that being appointed by a particular president doesn't constitute grounds for that judge to recuse himself or herself or being forced to recuse. For example, Judge Middlebrooks stated that "the law is well settled that appointment to the bench by a litigant, without more, will not “create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that [the judge’s] ability to carry out judicial responsibilities with integrity, impartiality, and competence [would be] impaired.” He further cited precedent holding that “There is no support whatsoever for the contention that a judge can be disqualified based simply on the identity of the President who appointed him" and that "Judges generally have political backgrounds to one degree or another but must be presumed, absent more, to be impartial.” Note that Kirschner addresses none of these clear precedents when he cites the statutory language he simplistically claims mandates Cannon's recusal.

Fourth, and most significantly, Kirschner also ignores the express language of the statute governing the complaint process he is blithely encouraging people to employ in an attempt to get Cannon replaced. That language states that:

(b) Conduct Not Constituting Cognizable Misconduct.
(1) Allegations Related to the Merits of a Decision or Procedural Ruling. Cognizable misconduct does not include an allegation that calls into question the correctness of a judge’s ruling, including a failure to recuse.
If the decision or ruling is alleged to be the result of an improper motive, e.g., a bribe, ex parte contact, racial or ethnic bias, or improper conduct in rendering a decision or ruling, such as personally derogatory remarks irrelevant to the issues, the complaint is not cognizable to the extent that it calls into question the merits of the decision.
(2) Allegations About Delay. Cognizable misconduct does not include an allegation about delay in rendering a decision or ruling, unless the allegation concerns an improper motive in delaying a particular decision or habitual delay in a significant number of unrelated cases.

In short Kirchner's video is embarrassing and he almost certainly knows that it is. I won't try to ascribe to him a motive.

PS -- one other factoid that addresses some of the conspiracy theorists here: As Judge Middlebrooks pointed out in his decision, Trump's lawsuit against Hillary Clinton was filed in the Fort Pierce division of this District, where only one federal judge sits: Judge Aileen Cannon. Yet, as he notes, the case was assigned to Judge Middlebrooks. How? Because contrary to what some folks claim, the assignment of the documents case to Cannon was not predetermined. It was random.

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