Aileen Cannon: The judge who could harm the fight to preserve democracy

This image, contained in the indictment against former President Donald Trump, shows boxes of records stored in a bathroom and shower in the Lake Room at Trump's Mar-a-Lago estate in Palm Beach, Fla. Trump is facing 37 felony charges related to the mishandling of classified documents according to an indictment unsealed Friday, June 9, 2023. Judge Cannon has unlimited power to delay the case regardless of the enormous number of stolen documents found in this toilet and shower at the Trump estate in Florida. | Justice Department via AP

MIAMI—In all the verbiage surrounding the indictment of former Republican Oval Office occupant Donald Trump on 37 counts of espionage, not enough can be said of the danger posed by the judge assigned to the case, U.S. District Judge Aileen Cannon.

Cannon’s rulings in federal court in Miami could affect not just Justice Department Special Counsel Jack Smith’s indictment of Trump for reams of stolen documents belonging to the American people, but in other cases looming against the former White House denizen, including election interference in Georgia and payment of hush money in New York also with the purpose of manipulating an election. Both those state cases may be put on hold until Judge Cannon runs out the clock on any potential delay tactics she engineers in Florida. Federal cases like the one in Florida often take precedence over state cases.

Those state cases, including Fulton County (Atlanta) DA Fani Willis’s investigation and looming indictment of Trump for trying to steal Georgia’s electoral votes in 2020 could have to wait then for many months before they can continue.

Willis, we know, wanted to move quickly. At her request, the Fulton County sheriff sent teams from his office to New York earlier this month and to Miami earlier this week to view security arrangements those areas made for Trump arraignments. And in late May, Willis, in asking the sheriff to do so, said she would bring the case to trial “soon,” with many expecting it would happen in late August.

And while one of Smith’s teams of attorneys deals with Cannon in Miami, the other in D.C., is still presenting evidence to a grand jury about Trump’s virtual order to 1,000 rabid Trumpites to storm the U.S. Capitol in the Jan. 6, 2021 invasion, insurrection and coup d’état try–and Trump’s refusal for two and a half hours to call off his dogs. He then reluctantly did so.

So Cannon then has a great deal of power, potentially enough to delay things so that if Trump or another Republican is elected in 2024 he or she could pardon the twice impeached, often indicted criminal ex-president.

Cannon could delay the trial’s start long enough so that it could stretch into  2025. If Trump—or a Trump clone such as Gov. Ron DeSantis, R-Fla.—wins the White House in 2024, that president could order DOJ to drop the case, pardon Trump, or both.

Alternatively, after Smith’s team presents its indictment and data, Cannon, under federal trial court rule #29, could toss the whole case out, citing  “insufficient evidence.” And the Justice Department couldn’t do a thing about it.

But it’s Cannon’s history too that’s worrisome.

Most of Cannon’s career before ascending to the bench—as a Trump nominee in 2020—was as an assistant U.S. prosecutor in Miami. And Cannon joined the right-wing Federalist Society as a law student in 2005 and has never given that membership up.

The Federalist Society and its boss, Leonard Leo, who evaluated judicial nominees, from the Supreme Court on down, for Trump, and recommended Cannon, then 39, for the bench. In Senate confirmation hearings, Cannon admitted to being  “an originalist” and “a textualist,” right-wing code words for judicial ideologues who hew to the conservative line.

Ducked many issues

Except for an endorsement of Brown v Board of Education, the 1954 Supreme Court ruling outlawing segregation, Cannon ducked other issues. Among them: The right wing’s success at justifying corporate campaign contributions. To all those issues, Cannon pledged to adhere to higher-court precedents.

But it’s Cannon’s track record as a prosecutor and a member of an organization whose stated mission is, in plain English, to stock the bench with ideologues in robes, that worries several experts interested in the rule of law and the impartial prosecution of Trump.

So does what happened the last time Judge Cannon got involved in the Trump case: Delaying Smith’s prosecution for three months. Cannon ruled the Justice Department needed to name a “special master” to evaluate the papers Trump stored at his Mar-A-Lago estate and decide which ones could be evidence and which could not.

Before Cannon’s special master could start, the Justice Department appealed the ruling to the conservative Republican-dominated 11th U.S. Circuit Court of Appeals in Atlanta. There, a three-judge panel, including two Trump appointees, declared Cannon went too far. Those judges unanimously said Cannon exceeded the trial court’s jurisdiction in delaying Smith’s case.

Even with that rebuke, and the possibility the 11th Circuit will still look over Cannon’s shoulder, former Sen. Russell Feingold, D-Wis., president of the American Constitution Society, is worried. So are other veteran criminal case lawyers.

“Judges are supposed to be bound by the Constitution and are expected to be objective and driven by sound legal reasoning, distinguishing them from elected officials who identify with a party and a partisan agenda. When judges no longer see this as their responsibility, the rule of law is under threat. And that’s what we are seeing today,” Feingold wrote recently.

That threat extends not just to the Supreme Court, but to lower courts, too, thanks to Trump, Senate Republican Leader Mitch McConnell, and, though Feingold didn’t say so, the Federalist Society. Feingold singled out the nod to Cannon as one of the “ideologues who took their partisan agenda with them to the bench,” producing “an alarming disregard for the rule of law.

Joyce Vance, the former U.S. Attorney for Alabama, told MSNBC that Cannon could use a wide range of tools to skew the jury pool. And former Justice Department attorney Gene Rossi, who has handled 90 jury trials—Cannon handled four as an Assistant U.S. Attorney in Miami—said the judge plays a key role in deciding what evidence is in or out.

That’s where Cannon tripped up, of course, in her prior brush with the Trump trial.

“Letting evidence in, keeping evidence out. That ability to control the evidence presented to a jury is a powerful tool for any judge,” Rossi told Politico.

Cannon also has one other credential that could affect the proceedings: Personal background. Born in Cali, Colombia, a fluent Spanish speaker and legal immigrant, Cannon’s written answers to the Senate Judiciary Committee show extensive involvement with the right-wing Cuban community in Miami, centering around “Calle Ocho,” Miami’s Eighth Avenue.

And while her academic work as a law student and later is also thin, Cannon authored at least two dozen articles—none of them on legal subjects—for El Nuevo Herald, the Spanish edition of the Miami Herald, which caters to that ultra-rightist, and pro-Trumpite, voting bloc.

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CONTRIBUTOR

Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.