Analysis: The Legal Tightrope of Judge Aileen Cannon in the Trump Mar-a-Lago Case
Judge Aileen Cannon finds herself in a precarious position as she navigates the legal complexities of the Trump Mar-a-Lago case. With recent reversals by the 11th US Circuit Court of Appeals, her involvement in the government's pre-indictment investigation is under scrutiny like never before.
On Tuesday, special counsel Jack Smith made a bold move in a filing related to the Mar-a-Lago prosecution. This case focuses on former President Donald Trump holding onto classified documents and refusing government efforts to retrieve them from his Mar-a-Lago estate.
Smith cautioned Judge Aileen Cannon that her interpretation of the law regarding the management of presidential records, and therefore Donald Trump's involvement, was flawed. He mentioned the possibility of seeking a rare pretrial review by the 11th US Circuit of Appeals. (Trump maintains his innocence.)
Cannon is facing significant challenges, possibly the most since the 11th Circuit overturned her decisions twice during her initial involvement in the government's investigation. If she does not adjust her approach, she may face further criticism from the circuit and potentially be removed from the case.
It's important to note that there are different reasons that could explain why she consistently made decisions in favor of Trump, even if it meant disregarding the law.
While some experts think that her actions may be influenced by her loyalty to the president who selected her, it's worth mentioning that she had a strong reputation prior to this situation. Therefore, we shouldn't dismiss the possibility of other factors contributing to her efforts to show fairness towards Trump, even if it means stretching the law.
But despite the reasoning given, Smith's new threat arose after she faced confusion when she instructed the parties involved to come up with two versions of guidelines for a jury on applying the Presidential Records Act (PRA) during the trial. The PRA defines the boundaries between a president's official and personal records, and establishes procedures for preserving official documents.
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Screens outside the Nasdaq MarketSite in New York, US, displayed Truth Social stock information on Tuesday, March 26, 2024. The stock market saw a rebound as traders made adjustments in the last days of a successful quarter. The photo was taken by Yuki Iwamura from Bloomberg via Getty Images.
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Cannon presented two scenarios to the parties for the divergent jury instructions. She made assumptions about the PRA, but also mentioned that she had not yet decided which interpretation to use. She allowed for counterarguments to be considered and asked both sides to create jury instructions based on these scenarios.
In our combined fifty years of legal experience, we have never encountered a situation like this. Typically, judges are expected to interpret the law and provide directions to the parties accordingly, rather than creating imaginative alternative scenarios for everyone to respond to.
Setting aside that point, Smith's recent response clarifies that Cannon's decision had a more significant issue: Both choices are based on incorrect assumptions about the law.
In Cannon's first example, the jury would decide if a former president classified a record as personal or official under the PRA. This doesn't make sense - presidents cannot label official records as personal, so there is no factual dispute for the jury to address.
A different set of laws, including Executive Order 13526, govern the classification process and rules for handling highly sensitive classified documents. One of the authors of this column, Eisen, helped write that executive order. The 11th Circuit has already confirmed that these rules fully apply to former presidents.
Cannon seems to believe that the Presidential Records Act (PRA) supersedes the executive order and other federal laws related to handling classified materials. However, this is not the case. In fact, the PRA defines “personal records” as materials of a purely private or nonpublic nature that do not pertain to the President's official duties. This definition does not cover highly classified documents such as battle plans and nuclear secrets involved in this criminal case.
Justin H. Min and Lucy Boynton in THE GREATEST HITS. Photo by Merie Weismiller Wallace, Courtesy of Searchlight Pictures. © 2024 Searchlight Pictures All Rights Reserved.
Justin H. Min and Lucy Boynton in THE GREATEST HITS. Photo byMerie Weismiller Wallace, Courtesy of Searchlight Pictures. © 2024 Searchlight Pictures All Rights Reserved.
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Nostalgia is beloved by many, from Donald Trump to Billy Joel. Cannon's first hypothetical is ruled out, but Smith argues that the second alternative is equally problematic. She introduced a legal standard where Trump's records could be seen as personal if he did not include them in the records sent to the National Archives and Records Administration. This would mean that simply taking the documents from the White House would automatically classify them as personal records.
Trump quickly embraced this interpretation, suggesting jury instructions that would lead to his acquittal. However, Smith pointed out that this approach lacks legal basis and does not align with the facts. Even Trump himself did not consider classified documents as personal belongings after leaving the White House, as revealed in a CNN audio recording from last year. In the recording, Trump discussed how certain documents remained classified even though he took them when he left office in 2021. Smith strongly argues that Trump's claim that records are personal only surfaced in February 2022, well after he left office.
Smith urged Cannon to promptly communicate her legal standpoint to both parties. If she agrees with the legal interpretation presented in the proposed scenarios, Smith hinted at seeking immediate appellate review. This underscores the seriousness with which Smith views the matter and emphasizes the significant error Cannon would be making.
Furthermore, this is not the only mistake made by Cannon. There is still no resolution regarding her puzzling and potentially risky choice to disclose the identities of twenty-four potential government witnesses. Smith has already requested Cannon to reconsider this decision, emphasizing that she used the wrong legal standard and overlooked the negative impact of revealing this information.
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After facing two prior reversals by the 11th Circuit, which criticized Cannon's belief that Trump should receive special treatment as a former president, the conservative judges condemned her for trying to create a new rule in the law for ex-presidents. Despite this, Cannon seems to still be showing favoritism towards the former president.
In the 11th Circuit, judges can be removed from a case if their actions give the public the impression of bias or unfairness. Cannon has the opportunity to fix this by, for instance, correcting her mistakes in jury instructions or agreeing to reconsider revealing the identities of witnesses.
If she continues to hold onto some of these incorrect decisions, Smith could request a review by the circuit and her removal. It would be rare to remove her from the case, and Smith hasn't mentioned pursuing that option in his documents. However, he also hasn't completely ruled it out. Cannon's reasoning on jury instructions and witness exposure is questionable enough that, if she doesn't change her approach, Smith may have to consider it as his only option.
Editor's P/S:
The article highlights the ongoing legal battle surrounding former President Donald Trump's possession of classified documents at his Mar-a-Lago estate. Special Counsel Jack Smith has challenged Judge Aileen Cannon's interpretation of the law, which he believes could lead to a mistrial. Smith has even hinted at seeking appellate review, which would be a rare move.
The article also raises concerns about Cannon's handling of the case. She has already faced criticism from the 11th Circuit for favoring Trump, and her recent decisions, such as instructing parties to create two versions of jury guidelines, have further eroded her credibility. If she does not correct her approach, Smith may have no choice but to seek her removal from the case. This would be a significant development and would underscore the seriousness of the allegations against Trump and the potential consequences he faces.
