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Judge Aileen M. Cannon has shown bias in handling criminal charges against former President Donald Trump and should be reversed and removed from the case to “preserve the appearance of justice,” a public interest group argued in a legal filing on Tuesday.
The brief filed by Citizens for Responsibility and Ethics in Washington and joined by a retired federal judge and two constitutional lawyers is a direct legal assault on Cannon’s decision to throw out special counsel Jack Smith’s prosecution of Trump for alleged mishandling of classified documents. CREW is a nonpartisan open-government advocacy group that has been at the vanguard of fighting Trump in various legal battles.
The brief argues that Cannon’s decision “hinged on ignoring the plain text of four federal statutes,” dismissing “a landmark Supreme Court opinion confirming the Attorney General’s power to appoint a Special Counsel.”
CREW writes that “a reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon’s many efforts to undermine and derail the prosecution of this case.”
In a stunning July 15 ruling, Cannon wrote that Attorney General Merrick Garland exceeded his authority by appointing Smith as special counsel without congressional approval and violated the Constitution’s separation of powers. “The Special Counsel’s position effectively usurps that important legislative authority,” she said. Critics say that decision was incorrect and disregarded years of legal precedent, including a landmark Supreme Court ruling.
Smith appealed her decision to the 11th U.S. Circuit Court of Appeals, but he stopped short of asking that Cannon be removed if the case is remanded.
Nancy Gertner, a retired federal judge from Massachusetts, was one of several parties who joined CREW as a friend of the court. She told ProPublica she decided after analyzing Cannon’s decision that it could not be explained by her caseload or inexperience.
“It was clearly bias,” said Gertner, who is a senior lecturer at Harvard Law School, citing repeated rulings from Cannon that were favorable to Trump’s attorneys. “And with this Supreme Court, there’s no ceiling. All precedents are up for grabs.”
Federal statutes governing reassignment of cases give appellate courts authority to ask the chief judge in a district to move the case if the original judge “has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality.” The brief cites several precedents, but reassignment based on judicial bias is uncommon.
Cannon, 43, was appointed to the Fort Pierce courthouse in the Southern District of Florida by Trump in November 2020, after he lost the election to Joe Biden. She was randomly assigned to the Trump document-handling case in 2022.
In May, the circuit’s Judicial Council dismissed several misconduct complaints against Cannon, alleging that she deliberately slowed down the Trump case and that she should have recused herself from the case as a Trump appointee.