Jumbled law appears to support keeping Judge Aileen Cannon on Trump case, but will Jack Smith find an argument that forces her to the judicial sidelines?

Special Counsel Jack Smith

 

Will U.S. District Judge Aileen Cannon be forced to recuse from the Donald Trump classified-documents case because she is a Trump appointee and ruled in his favor during earlier proceedings that challenged the FBI raid of Mar-a-Lago? Longtime Alabama attorney and criminal-defense expert Donald Watkins responds with a concise answer: No.

Watkins has roughly 48 years of experience in the legal profession, and he examines the Cannon question in an article today at his DonaldWatkins.com Web site. Under the headline "Must Aileen Cannon Step Down as the Trial Judge in Trump’s Case?" Watkins writes:

After I published a June 11, 2023 article describing why and how U.S. District Judge Aillen Cannon is expected to kill the Department of Justice case against former president Donald J. Trump, I received a number of private inquiries from readers who wanted to know whether federal law required Judge Cannon to step down as the presiding judge in Trump's case.

The answer is, “No.”

The applicable 11th Circuit Court of Appeals case on this point is United States v. Alabama, 828 F.2d 1532 (11th Cir.. 1987). Ironically, this appellate-court ruling involved the defendants’ requested removal of Birmingham U.S. District Court Judge U.W. Clemon as the presiding trial judge in the decades-long federal case to desegregate Alabama’s 32 public colleges and universities.

As explained in my June 11th article, Judge Clemon developed the “death knell” playbook for how an experienced trial judge can effectively kill the government’s prosecution of defendants in a highly partisan, high-profile, criminal conspiracy case. Judge Clemon brilliantly implemented this playbook in the case of U.S. v. Don Siegelman, Paul Hamrick, and Phillip Bobo (2004).

On May 27, 2004, Siegelman was indicted by a federal government in Birmingham for fraud. The day after his trial began in October 2004, prosecutors were forced to drop all charges against Siegelman and Hamrick after Judge Clemon threw out much of the prosecution's evidence.

Clemon, a longtime Democratic power player, was the first black federal judge in Alabama history. He was nominated to the federal bench by Jimmy Carter. Don  Siegelman was the Democratic governor of Alabama (1999 to 2003). Siegelman ran for governor in 2002 and lost to Republican Bob Riley.

On October 26, 2005, federal prosecutors indicted Siegelman and former HealthSouth Corp. CEO Richard Scrushy on public corruption charges. In June of that year, Scrushy defeated federal prosecutors in an original 85-count Indictment arising from a $2.7-billion accounting-fraud scheme at HealthSouth. Scrushy was indicted in the HealthSouth case in November of 2003.

Judge Clemon’s playbook also shows Cannon how to hold Special Counsel Jack Smith and members of his prosecution team in contempt of court and/or lock them up, if she chooses to do so.

What about specifics in the law that would govern the Cannon recusal issue? Watkins takes a look:

Based upon the speck facts and circumstances in Donald Trump's criminal case, this is the relevant question on whether Judge Aileen Cannon must step down in Trump's case: Did Judge Cannon actively participate in the very events and shape the very facts that are at issue in this criminal prosecution?

Again, the answer is, “No.”

Judge Cannon did not assist Donald Trump in removing the classified documents in question from the White House in January of 2021. She did not assist Trump in storing the documents at Mar-a-Lago several days later. And, Judge Cannon did not participate in any activity to conceal the classified documents from the FBI during the August 8, 2022, raid on Mar-a-Lago.

Just because Judge Cannon ruled against the government during proceedings last year that related to the FBI search of Mar-a-Lago is NOT a valid ground for seeking her removal from Trump's case.

United States v. Alabama, the higher-education segregation case where Judge Clemon's recusal was an issue, involved an unusually large number of parties -- several of whom wanted Clemon off the case -- and the 11th Circuit was forced to take a circuitous route to reach a conclusion on the recusal issue.

Irony was involved, especially as the Clemon finding could apply to an effort to recuse Cannon in the Trump case. With multiple parties seeking Clemon's recusal, on a variety of grounds, the 11th Circuit was not able to reach a straightforward, easy-to-digest conclusion. The court found that Clemon was not required to recuse on some grounds, but ultimately decided that he must recuse on other grounds.

All of this gets confusing for the lay reader. Clemon ultimately was forced to recuse in United States v. Alabama, but that case can be cited in support of the notion that Cannon cannot be forced to recuse in the Trump matter.

Can we clarify the matter, at least a little? Let's give it a shot:

United States v. Alabama has been cited in a number of subsequent cases, and those citations, read together, might clear up the water and help explain the 11th Circuit's roundabout path to a final ruling. Here are a couple of those subsequent citations:

* In re: Aguinda, 241 F.3d 194 (2d Cir., 2001), citing United States v. Alabama -- "Holding 'judge's background as civil rights lawyer and state legislator did not mandate disqualification of judge ordering desegregation, but that other factors did.'"

* El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136 (1st Cir., 1994), citing United States v. Alabama -- "Holding 'recusal mandatory under § 455(b) where trial judge's activities had involved him in "disputed evidentiary facts'"

To summarize:

(1) Aguinda cites a finding that Judge Clemon was not forced to recuse because of his "background as a civil-rights lawyer and state legislator," but that "other factors did" require his recusal;

(2)  El Fenix reveals that those "other factors" included "activities that involved him in "disputed evidentiary facts" in the case at hand.

Taken together, Aguinda shows that Clemon could be forced to recuse on "other factors" beyond his background as a civil-rights lawyer and state legislator. And El Fenix holds that those "other factors" included "activities that involved Clemon in "disputed evidentiary facts."

What does this tell us about the Trump case, and possible efforts to recuse Cannon? We have no evidence that Judge Cannon engaged in activities involving "disputed evidentiary facts" -- or engaged in any similar activities related to the Trump case.

This supports Donald Watkins finding that Judge Cannon cannot be forced to recuse because she "did not assist Donald Trump in removing the classified documents in question from the White House," she "did not assist Trump in storing the documents at Mar-a-Lago several days later," and she "did not participate in any activity to conceal the classified documents from the FBI."

In an apparent effort to remind the public that the disqualification of a federal judge is a serious matter, the 11th Circuit included the following words in its conclusion to United States v. Alabama:

That all may drink with confidence from their waters, the rivers of justice must not only be clean and pure, they must appear so to all reasonable men and women. Under the particular facts before us, the prior activities of the district judge cloud the court's impartiality and diminish its moral force. 

We are left with this question: Will Special Counsel Jack Smith and his prosecution team develop an argument that pierces the jumbled case and statutory language surrounding judicial disqualification and force Judge Cannon off the Trump case? It  won't be easy because the facts presented in United States v. Alabama are very different from those in the Trump case. (For example, Alabama was a civil case, while Trump is a criminal case. Also, no parties in Alabama were involved in appointing Clemon to the bench; it's a matter of record that Trump appointed Cannon to the bench.) Could these differences actually make it easier for Smith & Co. to develop a persuasive argument that forces Cannon off the Trump case? Time will tell.