Why Judge Aileen Cannon is on thin ice in Trump’s Mar-a-Lago case
Opinion
by Norman Eisen, E. Danya Perry and Joshua Kolb
6
minute read
Published
3:21 PM EDT, Wed April 3, 2024
Editor’s
Note: Norman Eisen, who served as counsel to House Democrats
in the first Trump impeachment, is a senior fellow at Brookings. E. Danya
Perry, a founding partner of Perry Guha LLP, formerly
served as a federal prosecutor and chief of investigations for New York State’s
Moreland Commission on Public Corruption. Joshua Kolb served as law clerk for
the Senate Judiciary Committee. The views expressed in this commentary are
their own. View more opinion at CNN.
CNN —
On Tuesday, special counsel Jack Smith threw down the
gauntlet in an extraordinary filing in the Mar-a-Lago prosecution, the case
that centers around former President Donald Trump’s retention of
classified documents and his resistance to government attempts to recover them
from his Mar-a-Lago estate.
Smith warned Judge Aileen Cannon that her approach to
the law governing the handling of presidential records — and so Donald
Trump’s culpability in the case — was “fundamentally flawed” and
threatened to seek rare pretrial review by the 11th US Circuit of Appeals.
(Trump denies all wrongdoing.)
Cannon is headed for the most trouble she has faced
since that 11th Circuit reversed her twice in her
original meddling in the government’s pre-indictment investigation. If she does
not course-correct, she’s headed for another shellacking by the circuit – and
possible removal from the case.
As a threshold matter we should be clear that there are
alternative explanations for her pattern of decisions favoring Trump at the
expense of the law.
Some analysts believe she is acting out of
bias for a president who appointed her. But she had a good reputation
before this case and we cannot rule out other
explanations for her bending over backwards (and bending the law) to
appear fair to Trump.
But whatever the explanation, the fresh threat from
Smith came after she got herself into a tangle when she ordered the parties to
propose two versions of instructions for a jury on how to apply the
Presidential Records Act (PRA) when the case goes to trial. That statute outlines the parameters between
a president’s official and personal records, and sets up processes for how
official documents are preserved.
Cannon provided the parties with
two scenarios for the divergent jury instructions that assumed legal
conclusions about the PRA while simultaneously indicating that she had not made
up her mind about which interpretation to apply and reserved the right to
entertain counterarguments. She then asked both sides to
fashion jury instructions based upon these two imaginary worlds.
We have never seen anything like this before in our
collective half-century of legal practice. Judges are supposed to decide the
law and to order parties accordingly, not invent fanciful alternative realities
for everyone to react to.
Putting that to the side, though, as Smith’s new
response makes crystal clear, Cannon’s order suffered
from an even more fundamental problem: Both options rest on badly misconceived
assumptions about the law.
Cannon’s first scenario would allow the jury to make a
factual determination about whether a former president deemed a record to be
personal or official under the PRA. That is nonsensical – presidents are not
allowed to designate official records as personal ones, so there is no factual
issue for a jury to resolve.
A different set of laws govern the classification
process and the rules for handling highly sensitive classified documents — not
the PRA. They include Executive Order 13526. One
of the authors of this column (Eisen) helped write that executive order. The 11th
Circuit has already established that those
rules fully apply to former presidents.NT
Cannon seems to think that the PRA somehow supersedes
the executive order and the rest of federal law pertaining to the handling of
classified materials. It does not. On the contrary, the PRA defines “personal
records” as “all documentary materials … of a purely private or nonpublic
character which do not relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial duties of the
President.” That cannot possibly include highly classified battle plans,
nuclear secrets and the other official documents at issue in this
criminal prosecution.
That rules out Cannon’s first hypothetical. But as
Smith points out in his filing, the second
alternative is just as bad. She made up a legal standard, asking both sides to
assume that Trump could have deemed a record personal by simply not including
it with the records transmitted to the National Archives and Records
Administration at the end of his term. If this were true, the mere fact that
Trump took the documents with him from the White House would inherently turn
them into personal records.
Of course, Trump leaped at this interpretation,
fashioning proposed jury instructions that
would inevitably result in his acquittal. But, as Smith noted, this
approach has no basis in the law — or the facts. Even Trump himself does not
seem to have considered classified documents personal after he left the White
House, as evidenced in an audio recording CNN obtained last year in
which Trump, during a conversation at his Bedminster, New Jersey,
estate in 2021, discussed documents remaining classified even though
he took them with him upon leaving office. Smith hits this point hard, arguing
that Trump’s position that records are personal was “invented” when the
controversy over the documents began to emerge in February 2022, over a year
after Trump left the White House.
Importantly, Smith asked Cannon to let both parties
know “promptly” how she viewed the law. If she ultimately embraces the legal
interpretation articulated in her proposed scenarios, Smith indicated he would
strongly consider immediate appellate review. That shows how seriously Smith
views this issue and the fundamental error Cannon would be making.
Nor is all this an isolated mistake by Cannon. We are,
for example, still waiting for the resolution of her baffling and potentially dangerous decision to
release the identities of two dozen possible government witnesses. Smith has
already taken the extraordinary step of asking Cannon to reconsider, pointing
out that she made a clear error by applying the wrong legal standard and
ignored the harmful consequences of such a disclosure.
All of this comes after her two prior reversals by the 11th Circuit, which slammed Cannon’s professed view that Trump
deserves special treatment given his status as a former president. The
conservative 11th Circuit lambasted Cannon for
“carv[ing] out an unprecedented exception in our law for former presidents.”
But even now, Cannon appears to be continuing to confer extra legal
considerations for the former president.
In the 11th Circuit, under rare circumstances, a judge
can be removed from a case if their conduct creates “the appearance of
impropriety or a lack of impartiality in the mind of a reasonable member of the
public.” She still has time to rectify this — by, for example,
abandoning these incorrect jury instructions or granting Smith’s motion to
reconsider revealing witnesses’ identities.
But if she doesn’t, and clings to even a few of these
wrong decisions, Smith would be entitled to seek the review he threatens by the
circuit and her removal. Ejecting her from the case would be extremely unusual
and Smith does not mention seeking it in his papers. But neither does he rule
it out, and Cannon’s reasoning on the jury instructions and on exposing
witnesses is lawless enough that, unless she reverses course, he may have no
other choice.
