Trump Judge Aileen Cannon Is A Hack... But Maybe Also A Cowardly Hack?

As of this moment, Trump's criminal case for mishandling a bunch of classified documents, refusing to turn them over, sending his lawyers to lie about turning them over, maybe flooding his house, and then going on tape to admit that he knew these were not declassified documents has initially landed on Judge Aileen Cannon's docket. (Indictment below).

Come on! Aileen? Oh, I swear!

Judge Cannon made herself a legal laughingstock earlier in this investigation by inserting herself into the fight over the search warrant that turned up all these top secret documents lounging by the Mar-a-Lago pool. Cannon lacked any jurisdiction to embark on a civil challenge as an endrun around a criminal investigation, a lesson she learned the hard way when an all-conservative panel of the Eleventh Circuit excoriated her for mucking up remedial procedure. But up until the appellate court put a stop to her nonsense, Judge Cannon seemed content to throw caution and the rule of law to the wind to give Trump's lawyers whatever they wanted.

How bad could it get if Judge Cannon remains on this case? Well...

"You are the greatest President in history, and I hope you are re-elected. Rule 29 motion granted as to all counts." pic.twitter.com/qN29zvaSqR

-- Orin Kerr (@OrinKerr) June 9, 2023

Rule 29 is what used to be known as a directed verdict and authorizes a judge to acquit the defendant regardless of jury's verdict. In theory, a faulty indictment or a government case long on bluster and light on law, could sway a jury to find guilt where the law can't support it. If the judge puts off this motion until after a guilty verdict, the government can appeal to get the guilty verdict affirmed. If the judge issues this ruling before a verdict, as Professor Kerr notes, "Double jeopardy attaches and the case ends, for those wondering."

So that's bad.

A federal judge suggesting that there's no basis in law to convict someone blasting the facts necessary to sustain a conviction on his own social media would do a lot of damage to the rule of law.

But... would she actually do that? There's a profound lack of faith in Trump-appointed judges, mostly because those ranks are filled with objectively unqualified hacks consistently botching basic legal tasks in favor of auditioning for higher office the next time a conservative patron reaches the White House. And while Judge Cannon is definitely cut from the bad faith cloth, when faced with a Rule 29 nuclear option, it's hard to imagine she'd turn the key.

Because she's proven herself... a bit of a scaredy-cat. Even at the height of her shenanigans on behalf of the Trump cause, when she asserted (wrongly, it turns out) that she had authority over the Trump warrant, she still seemed to hope that the much more experienced and competent special master, Senior Judge Raymond Dearie, would handle it. Judge Dearie seemed on track to trash Trump's claims and while Judge Cannon threw some roadblocks in his way, the whole thing played like Cannon wanted all the Federalist Society chits for intervening without bearing the long-term professional repercussions for actually doing something profoundly stupid and illegal. What would she have done when the special master came back telling Trump to pound sand? We never have to know thanks to the Eleventh Circuit, but it seems likely Cannon would've thrown up her arms and told MAGAworld that she tried.

After suffering a brutal benchslapping, normal judges exercise a lot more caution when the matter comes back around. Even strong-willed, exceedingly confident district judges tend to toe the line after such a ruling. Folks spoiled by watching the Supreme Court bask in its lack of accountability might scoff at the idea that a guaranteed life-tenured judge would care at all about an appellate scolding but, again, normal judges still care about their professional reputation, the opinion of legal elites, the chance to end up in the history books (for good reasons).

Now... the stakes are far too high to bank on her own fear of joining history for the wrong reasons. The Department of Justice should ask her to recuse herself from the case given her prior role and, in the alternative, bump that motion up to her avowed non-fans on the Eleventh Circuit.

An Eleventh Circuit expert notes that this is a sound motion:

But I don't think it gets to the Eleventh Circuit. Maybe this is projecting too much normal on a judge who has already stepped far afield of the bounds of judicial prudence once, but I think Judge Cannon will take this opportunity to flee the case before it becomes the scarlet T on her career. She doesn't want this on her plate and she's just worried enough about dealing with all this that she'll take the offramp before the Eleventh Circuit forces the issue.

https://abovethelaw.com/uploads/2023/06/Trump-Indictment.pdf

Earlier: Trump Judge Grants Warrant Motion On Grounds Of Vibes, Man, All Vibes
BENCHSLAP: Eleventh Circuit Sh*tcans Trump Special Master In Withering Takedown Of Lower Court Ruling
Trump Lawyers Shocked To Find That Special Master Review Process Involves Review. And Process. And A Special Master Who Won't Do As He's Told.
Trump Judge Takes A Wrecking Ball To Special Master Order In Trump Warrant Case
Donald Trump Keeps Losing Files To 'Flooding' Whenever Investigators Start Looking
Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench
Judge Ho Apparently Didn't Bother To Read The Cases He Cited In Domestic Abuser Gun Opinion
DC Circuit Nixes Judge Neomi Rao's Craven SCOTUS Application, Will Rehear Michael Flynn Case En Banc

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you're interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.