Trump
stands accused of committing forty
felonies for
absconding from the White House with a trove
of classified and top-secret papers, stashing
them at his Palm Beach golf resort, and
refusing to return them to the federal
government on demand.
Two
other defendants—Walt Nauta, Trump’s longtime
valet; and Carlos de Oliveira, the resort’s
property manager—are accused of committing
some crimes jointly with Trump and others on
their own.
Unfortunately,
there is one big problem facing Special
Counsel Jack Smith’s team in the Sunshine
State: The trial will be presided over by
District Court Judge
Aileen Mercedes Cannon,
who may just be in the metaphorical tank for
the former President.
Cannon,
who was born in Colombia and grew up in Miami,
was nominated by Trump in May 2020 to serve on
the United States District Court for the
Southern District of Florida. She was
thirty-nine-years-old, relatively young by
federal judicial standards.
Cannon
was confirmed by the Senate on November 12,
2020, nine days after Trump lost the
presidential election, despite having
only four
minor jury trials on
her resume as a practicing attorney. Her scant
record as a published author at the time of
her nomination included a series of
human-interest pieces she wrote as an
undergraduate for El Nuevo Herald, a
Miami-based Spanish-language daily newspaper.
Among the topics she covered were prenatal
yoga, the health benefits of tomatoes, and
Flamenco dance.
By
all appearances, Cannon grew more serious in
law school at the University of Michigan,
joining the Federalist Society and
establishing herself as a staunch
conservative. She served as an assistant U.S.
attorney in southern Florida from 2013 to
2020, and in that capacity, caught the eye of
the Trump Administration as a worthy candidate
to add to the growing cadre of right-wing
judges the ex-President had appointed.
Once
enrobed, Cannon was assigned to a courtroom in
Fort Pierce, north of West Palm Beach. Under
normal circumstances, she would have remained
under the radar for years, handling a
challenging but standard docket of civil and
criminal litigation. The FBI’s search of
Mar-a-Lago on August 8, 2022, changed that
trajectory in a flash.
Cannon
was assigned to hear a highly unusual civil
lawsuit Trump’s lawyers filed on August 22,
seeking an emergency protective order to block
the government from indicting Trump until the
propriety of the search could be reviewed by
an independent arbiter known as a “special
master.” Suddenly, she found herself in the
national spotlight.
To
the shock and dismay of many legal observers,
Cannon ruled quickly in Trump’s favor, issuing
an order on September 5, appointing a special
master, and reasoning that Trump was entitled
to be treated differently than other criminal
suspects in order to avoid the “reputational
harm” that could have resulted from a hasty
indictment. “As a function of Plaintiff’s
former position as President of the United
States,” Cannon wrote, “the stigma associated
with the subject seizure is in a league of its
own.”
At
the Special Counsel’s request, the 11th
Circuit Court of Appeals quickly intervened
and rebuked Cannon in a stinging reversal,
holding:
"We cannot write a rule that allows any
subject of a search warrant to block
government investigations after the
execution of the warrant."—11th Circuit
Court of Appeals.
“The law is clear. We cannot
write a rule that allows any subject of a
search warrant to block government
investigations after the execution of the
warrant. Nor can we write a rule that allows
only former Presidents to do so. Either
approach would be a radical reordering of
our case law limiting the federal courts’
involvement in criminal investigations. And
both would violate bedrock
separation-of-powers limitations.”
Incredibly,
now that Trump has actually been indicted,
Cannon is once again presiding, apparently
impervious to demands that she recuse herself
due to the appearance of bias. According to
the district-court clerk, she was randomly
selected to act as the trial judge from a
total pool of seven active judges.
Given
the broad authority of federal trial judges
and her obvious pro-Trump bias, Cannon will be
uniquely positioned to help the ex-President
as the case unfolds. She will rule on all
pretrial motions, including any motions to
suppress the documents on Fourth Amendment
grounds, as well as any that seek to dismiss
the indictment for selective prosecution or
prosecutorial misconduct. She will also have
the last word on the admissibility of evidence
at trial.
Given
the broad authority of federal trial judges
and her obvious pro-Trump bias, Cannon will be
uniquely positioned to help the ex-President
as the case unfolds.
Cannon’s
greatest impact, however, may be on jury
selection. Under the federal rules of criminal
procedure, the prosecution will only have six
peremptory jury challenges, allowing it to
automatically exclude potential jurors it
believes will be unfair. After that, the
prosecution will be limited to challenges for
cause (such as implied or actual bias), which
Cannon will have the sole power to grant or
deny. It will only take one rogue juror who
holds out for acquittal regardless of the
evidence to spare Trump.
Even
if Cannon were not biased herself, there is
good reason to doubt her ability to supervise
the high-profile selection of Trump’s jury. In
a recent criminal case, according to a
transcript obtained by Reuters, she arguably
committed an egregious Sixth Amendment error
when she excluded the family of a criminal
defendant and the general public from her
courtroom during jury selection, pointing to a
lack of space. She also neglected to swear in
the jury pool, and was forced to restart jury
selection after realizing her mistake.
Cannon
could also play a decisive role post-trial if
Trump’s attorneys ask her to issue a directed
verdict that would take the question of guilt
out of the jury’s hands. Such motions are
routinely made in criminal trials, but are
rarely granted.
If
all this seems like a prescription for
disaster, take heart: Trump will soon be in
the dock in the District of Columbia, Georgia,
and New York State—all far beyond Judge
Cannon’s reach.
