Analysis: Some want judge to recuse herself in Trump case. Can and should that still happen?

MIAMI — The calls to step aside came almost immediately after U.S. District Judge Aileen Cannon was randomly assigned the historic criminal case charging former president Donald Trump with hiding classified documents at Mar-a-Lago.

They came largely from the political left but also from some legal experts, all citing Cannon’s controversial decisions favoring Trump in a civil dispute last year over the FBI’s seizure of government records from his Palm Beach estate.

Those earlier rulings have stirred ongoing speculation about whether the chief judge of the Southern District of Florida, Cecilia Altonaga, might suggest to Cannon that she recuse herself — to both insulate Cannon from the lightning-rod case and a federal judiciary already under intense scrutiny over ethics questions at the highest levels.

But more than a week after Trump’s arraignment in Miami federal court, the evidence strongly suggests Cannon has no intention of stepping aside — and legal experts say the bar is high to remove a judge who wants to stay on a case.

The Trump-appointed judge sent a message herself this week, exerting authority by ordering a trial date for Aug. 14 in her courtroom in Fort Pierce, a Republican-friendly venue for potential jurors, instead of West Palm Beach or Miami.

Cannon’s move seems to all but close the window for another federal judge to take her place, said Stephen Gillers, an emeritus professor at New York University Law School and an expert in legal ethics.

There are a number of reasons why Gillers and other legal scholars now consider the question of Cannon recusing herself a “moot point.”

For starters, long-standing protocol largely leaves federal judges to decide for themselves whether to step down from a case, typically because they have a clear personal or financial interest in the outcome. The grounds for removing judges otherwise are narrow, he and other legal experts say — and don’t include their past legal rulings.

There also are a select number of parties that might request a judge to recuse. A district court’s chief judge — in this case, Altonaga, who witnessed Trump’s arraignment in her courtroom — has limited power to do so and, experts say, it might come in the form of a have-you-considered conversation rather than a suggestion or request. Though it is still early in the Trump criminal case, it now appears the only parties that could ask Cannon’s to step aside are U.S. Department of Justice lawyers and the former president’s defense attorneys. Neither side has made a move and if they did, they’d need to make a case showing a compelling conflict of interest.

“The rule is quite clear you have to act quickly,” Gillers said Thursday. “You can’t wait until the judge makes a few rulings and then decide whether they are good for you or not.”

“The matter is closed unless something unusual emerges in the future,” he added.

Whether Altonaga or other district judges ever discussed the subject with Cannon remains unclear. Neither judge would respond to questions because of the pending criminal case against Trump, according to the court administrator for the Southern District of Florida.

But Cannon seemed to answer the clamoring of outside pundits and critics with a simple action, beginning with her issuance on Tuesday of a trial schedule with instructions for both sides. In her order setting the case for a speedy trial within 70 days of the June 13 arraignment, Cannon noted the likelihood of delays due to the “complexity of the case,” including national security clearances and the handling of sensitive documents about the nation’s defense strategies, weapons systems and nuclear programs. Practically speaking, legal experts say it could be many months, even a couple of years before a trial.

Judges usually make call themselves

Judges have been removed because defense attorneys or federal prosecutors argue that there’s a conflict of interest or an inability to be impartial. That could even include flippant remarks from the bench betraying bias. But it’s not common..

One memorable and emotional example: In 1995, a federal appeals court panel removed U.S. District Judge Wayne Alley from the Oklahoma City bombing case, noting that the federal courthouse was across the street from the federal building blast killing 168 people and injuring many others — including a member of the judge’s staff and other personnel.

In Cannon’s case, the questions about the 42-year-old former federal prosecutor from the Miami area — a Trump appointee who joined the Southern District’s bench in late 2020 — have nothing to do with a personal connection or financial interest. The concerns of bias are mainly focused on her oversight of Trump’s legal challenge to the FBI’s seizure of more than 100 classified documents and other materials from his Mar-a-Lago residence last August. Cannon has also been a member of the Federalist Society, a conservative group that exerted a tremendous influence over the judiciary, particularly during Trump’s term as president.

Initially, Cannon’s rulings stalled the Justice Department’s investigation when she agreed to name a “special master” — a former New York federal judge — to pore over the documents to determine whether any contained privileged correspondence involving Trump as president. But then the documents probe regained traction after an appellate panel consisting of three Republican-appointed judges issued a scathing ruling saying Cannon had no authority to appoint the special master before any charges were filed against Trump.

She was forced to dismiss Trump’s challenge of the FBI’s seizure of the classified documents from his home and the Justice Department’s investigation resumed at full pace — leading to special counsel Jack Smith’s decision to seek the indictment from the grand jury in Miami federal court earlier this month. Last week, Trump pleaded not guilty to a 37-count indictment charging him with willfully retaining classified documents in violation of the Espionage Act, conspiring to obstruct justice and making a false statement.

Legal experts said being overturned in the previous Trump search warrant rulings isn’t enough to disqualify her from hearing the criminal case.

“The fact that she appointed a special master in the previous Trump case was a mistake, but it’s not a reason to recuse her,” said Miami attorney Dennis Kainen, a past president of the Miami-Dade Bar Association and former member of the Florida Bar Board of Governors.

“If judges got recused simply because they got reversed by the 11th Circuit Court of Appeals, they wouldn’t be able to hear a lot of cases,” Kainen said. “When judges get reversed, they typically get reversed for a new trial.”

It is impossible, of course, to predict how Cannon will handle another unprecedented, highly politicized case.

“One could argue that she got a mulligan — [known as a do-over in golf with no penalty] — she’s going to try to prove to the country that while she did get it wrong the first time, ‘she’s got this’ the second time around,” said Jan Jacobowitz, a South Florida legal ethics attorney who for more than a decade was the director of the Professional Responsibility and Ethics Program at the University of Miami’s School of Law.

“On the other hand, this creates the perfect storm that could cause an objective observer in the public to question her impartiality,” Jacobowitz said.

Gillers, the NYU legal ethicist, noted that for Cannon, the opportunity to preside over the most high-profile and closely watched criminal case in the country “would be irresistible.”

“On the other hand, it’s not a free ride,” he said. “She could find herself criticized by advocates for the defense or advocates for the prosecution. If I were her best friend, I would say you don’t need it. Don’t look at it as a surefire advantage for your career.”

What arguably drew the most criticism from legal experts in the search warrant case is that Cannon herself acknowledged she was carving out exceptions for Trump, concluding the unprecedented nature of an investigation of a former president merited special treatment.

In a September 2022 order in that civil dispute, she noted that she agreed with Justice Department lawyers that FBI agents carrying a search warrant for Trump’s Mar-a-Lago estate had not shown a “callous disregard for [his] constitutional rights,” concluding that “this factor cuts against the exercise of equitable jurisdiction.” But rather than follow her own analysis, Cannon extended Trump protections not provided to ordinary citizens by appointing the special master to review the FBI’s evidence, citing the “unprecedented circumstances” of the U.S. government raiding a former president’s home.

But the appellate court panel in Atlanta, in ruling last December, said that the proper time for Trump or any other suspect in a criminal investigation to challenge the government’s seizure of property would be after an indictment has been returned by a grand jury. The panel noted that it is “indeed extraordinary for a warrant to be executed at the home of a former president” — but “the law is clear,” the three-judge panel concluded.

“We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of a warrant. Nor can we write a rule that allows only former presidents to do so.”

A test of public confidence

One thing is certain. Cannon’s oversight of the Trump case will be scrutinized and criticized, shaping up as another test of a divided public’s confidence in the federal judicial system. The U.S. Supreme Court in particular has had to defend itself repeatedly over the last few years as the conservative majority has made a string of momentous decisions on abortion, environmental regulations, gun and religious rights, and other divisive matters.

The sharp right turn comes at the same time two conservative U.S. Supreme Court justices, Clarence Thomas and Samuel Alito, have come under scrutiny for not disclosing gifts, including expensive trips, from wealthy GOP businessmen who have had legal matters heard by the court, according to a series of investigative stories by ProPublica.

Thomas has been largely silent about the revelations of gifts from Harlan Crow, a rich Republican donor. Chief Justice John G. Roberts Jr. turned down an invitation from Congress to testify about the court’s ethics practices and said it would address them without providing details.

This week, Alito wrote an essay in the Wall Street Journal defending his decision not to disclose a 2008 fishing trip to Alaska on the private jet of Paul Singer, a hedge fund manager and Republican donor. Subsequently, Singer’s businesses were parties to a number of Supreme Court cases in which Alito participated.

“ProPublica suggests that my failure to recuse in these cases created an appearance of impropriety,” Alito wrote in an op-ed piece with a legalistic tone, “but that is incorrect.”