XPost: alt.fan.rush-limbaugh   
   From: patriot1@protonmail.com   
      
   How to Force Judge Aileen Cannon Off the Trump Case   
      
   Soon after the news broke that Donald Trump will become the first former   
   president to face federal criminal charges—37 counts that include willful   
   retention of national defense information under the Espionage Act,   
   conspiracy to obstruct justice, concealing documents, and false   
   statements—it was also revealed that Judge Aileen Cannon is scheduled to   
   oversee the case. In our view as experts with more than a century of   
   collective experience in judicial and other ethics questions, that cannot   
   stand. She must recuse herself from the case or, if she refuses, be   
   reassigned by the appropriate judicial oversight authorities.   
      
   Her name may be familiar to many. Judge Cannon heard Trump’s challenge to   
   the government’s classified-documents investigation, appointed a special   
   master to review the documents, and temporarily barred the Justice   
   Department from using those records in its investigation. That much-   
   maligned decision was later reversed by a three-judge panel of the U.S.   
   Court of Appeals for the 11th Circuit consisting of three conservative   
   judges: two Trump appointees and the G. W. Bush appointed Chief Judge   
   William Pryor. They wrote that her decision violated “clear” law and that   
   her approach “would be a radical reordering of our caselaw limiting the   
   federal courts’ involvement in criminal investigations” and “violate   
   bedrock separation-of-powers limitations.”   
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   Now that the same investigation has resulted in an indictment against   
   Trump, Judge Cannon’s prior, fundamentally erroneous approach casts a   
   shadow over the proceedings. Because her earlier handling of this case went   
   well outside the judicial norm and was roundly criticized by the Court of   
   Appeals, reasonable observers of this case could question her impartiality.   
   Federal law has a way to deal with this challenge: under 28 U.S.C. § 455   
   (a), a judge “shall disqualify himself [or herself] in any proceeding in   
   which his [or her] impartiality might reasonably be questioned.” Judge   
   Cannon’s situation clearly fits that test, and she is obligated to recuse   
   herself in Trump’s case.   
      
   Recusal is necessary here to avoid serious concerns about Judge Cannon’s   
   impartiality in the public eye. The judicial recusal rule is about   
   preserving the public’s confidence in the judicial system; it does not   
   require a showing of actual bias. Rather, as the Supreme Court has   
   explained, it simply asks whether “an objective observer” in the public   
   “would have questioned [the judge’s] impartiality.” That is clearly the   
   case with Judge Cannon. It is irrelevant whether a judge subjectively   
   believes herself to be impartial. Because the statute aims at ensuring both   
   justice and “the appearance of justice,” a federal judge must recuse if   
   facts connected to the judge’s actions in the case would cause an objective   
   observer to doubt the fairness of the proceedings.   
      
   Several features of this case make it clear that members of the public will   
   harbor serious concerns about the fairness of the proceedings and Judge   
   Cannon’s impartiality, well beyond the objective observer standard.   
      
   First, it is common knowledge that Judge Cannon already took the deeply   
   erroneous step of ordering federal prosecutors to refrain from using the   
   materials seized from Mar-a-Lago in their investigation, when she appointed   
   a special master to review whether these materials were subject to   
   executive or attorney-client privilege. The charges here are the direct   
   result of the investigation her order temporarily halted.   
      
      
   Second, Judge Cannon’s other statements and actions in the prior   
   proceedings made clear her view that Trump is entitled to differential   
   treatment than any other criminal defendant. She wrote that “[a]s a   
   function of Plaintiff’s former position as President of the United States,   
   the stigma associated with the subject seizure is in a league of its own.”   
   She reiterated this position in denying the government’s motion for a   
   partial stay of her order pending appeal, stating that her consideration   
   “is inherently impacted by the position formerly held by [Trump].” After   
   the 11th Circuit rejected her position and granted a partial stay to allow   
   the government to use classified materials and remove them from the special   
   master’s review, she still ruled for Trump on procedural issues over the   
   views of the special master she appointed. As the ultra-conservative panel   
   of the 11th Circuit forcefully explained when finally dismissing Trump’s   
   civil action in its entirety, it was Judge Cannon’s attempt to “carve out   
   an unprecedented exception in our law for former presidents” that was in a   
   league of its own.   
      
   Third, federal courts have explained in related contexts that prior   
   reversals of a judge’s decisions in a case can support the conclusions that   
   the judge “would have difficulty putting [her] previous views and findings   
   aside,” and that another judge taking the case would be “appropriate to   
   preserve the appearance of justice.” Here, Judge Cannon has issued a   
   repeated series of decisions that were harshly criticized by the appellate   
   authorities as far outside the law. That is a pattern that leads to the   
   ineluctable appearance of bias.   
      
   Notably, the prior erroneous rulings had to do with the treatment of   
   classified documents, and she had to be schooled by the DOJ and then 11th   
   Circuit on her cavalier attitude. These decisions are directly related to   
   the current charges. And she will have to deal with those issues   
   constantly, including under the Classified Information Procedures Act   
   (CIPA), the complex statute governing how a court deals with the   
   intricacies of a criminal prosecution involving classified information. Add   
   all this on top of the fact that she is the only judge in her division of   
   Fort Pierce and that, for security reasons, the U.S. Marshal with likely   
   insist the case be tried in Miami where the arraignment will occur, there   
   are also substantial logistical reasons for her to step aside. That   
   provides Judge Cannon with an elegant exit opportunity, should she choose   
   to take it, without having to even address the significant conflict issues.   
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   To be clear, our concern is not that Judge Cannon is a Trump appointee. The   
   conflict of interest is that she has already issued unusual and profoundly   
   wrong decisions favoring the defendant in this case that have been severely   
   criticized and overturned, again by conservative or Trump-appointed judges.   
      
   Yet another dimension of recusal that judges sometimes consider is whether   
   it would have practical downsides. But there are no such costs here to   
   another judge overseeing Trump’s case. The proceeding is still in a nascent   
      
   [continued in next message]   
      
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