Why is Judge Aileen Cannon slow-walking the Florida documents case against Donald Trump and others? There are three explanations, two of which are troubling and all of which call for appellate intervention.
The benign explanation is that Cannon, recognizing her inexperience, simply wants to get it right. But many lawyers and academics knowledgeable about federal criminal litigation, the indictment’s alleged facts, and the area of law encompassed by the charges doubt this is true. And for good reason.
For example, an inexperienced judge would follow precedent rather than setting days of hearings on long-settled issues, as Cannon has done in response to Trump’s challenge to the special prosecutor’s authority. Then there are the baseless motions that inexplicably remain pending, like the claim that the case should be dismissed because Joe Biden, Mike Pence, and Hillary Clinton were not prosecuted for similar conduct. Nor has Cannon addressed Trump’s presidential immunity claim even though the allegedly illegal conduct — the wrongful retention of national security documents — occurred after Trump’s presidency ended. The list goes on.
The two troubling explanations for the case’s glacial progress are that Cannon does not want to try the case, a goal that Trump’s election will achieve because he can then instruct his Justice Department to drop it; and, second, that Cannon wants to avoid a trial that could result in a Trump conviction, or the disclosure of harmful evidence, and thereby hurt Trump’s electoral chances.
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Whatever the explanation, is it not possible for the Appeals Court for the 11th Circuit, which previously reversed two of Cannon’s decisions favoring Trump in this very prosecution, to investigate why the case is barely inching along? It has been assumed that the Appeals Court can do nothing because Cannon has not issued a ruling that would enable it to take jurisdiction and assign a different judge.
But that assumption is wrong. There is another way for the court to intervene. This route should rarely be used, but the importance of the case and Cannon’s perplexing management of it require action.
Anyone may file a complaint with the 11th Circuit alleging that Cannon “has engaged in ‘conduct prejudicial to the effective and expeditious administration of the business of the courts.’ ” That is the statutory standard for judicial discipline. In fact, the circuit court does not even need an outside complaint.
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The chief judge, William Pryor, may proceed without one. Doing so could lead to an investigation and possibly a hearing before a panel of judges in the circuit, known as the judicial council, to determine if Cannon’s case management has prejudiced the “effective and expeditious” administration of justice. While it is possible that a confidential investigation is already underway, it is unlikely because progress in the case has, if anything, decelerated.
The finding that Cannon has engaged in conduct prejudicial to the efficient and expeditious business of the courts need not conclude that she did so for improper motives. The judicial council may assume that Cannon had the best of intentions, while also finding that the case is far too complicated for her.
And what if the judicial council does conclude that the case has been mismanaged? The same law that enables intervention says that if the judicial council finds that a complaint is valid, it “shall” take corrective action. It may ask Cannon to step aside voluntarily or, if she will not, appoint another judge to preside.
Pryor, who was nominated by George W. Bush, is a conservative judge on a conservative court. If the judicial council were to replace Cannon, it would be impossible to criticize its decision as politically motivated.
Cannon’s case management is so unusual and so beneficial to Trump that the public is left to speculate that she is auditioning for a judicial promotion or other high position if he is reelected. But one needn’t go that far. It is enough that Cannon’s conduct has made such speculation entirely plausible, which seriously damages public confidence in the courts. Sometimes even judges need an intervention, and this is one of those times.
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Stephen Gillers is professor of law emeritus at New York University School of Law. Nancy Gertner is a retired US District Court judge and senior Lecturer at Harvard Law School.
