Caselaw demands judges avoid mere 'appearance' of impropriety...
By Ernest A. Canning on 6/19/2023, 1:02pm PT  

Constitutional legal scholar Laurence Tribe is charging that federal statute mandates that Donald Trump-appointed U.S. District Court Judge Aileen Cannon recuse herself from presiding over United States v. Donald J. Trump.

28 U.S. Code §455(a) provides that...

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (Emphasis added)

The criminal case against the former President is a 37-count indictment related to his alleged unlawful retention of national defense documents, conspiracy and obstruction of justice.

Tribe argued that Judge Cannon, in the earlier civil case filed by the former President last year, had not merely been overturned by the 11th Circuit Court of Appeal but also rebuked for what amounted to a lawless effort to interfere with an ongoing criminal investigation by the U.S. Department of Justice. Her unwarranted intervention was such that, in Tribe's view, "no person could say" that the 455(a) standard mandating recusal "had not been met."

The Harvard law professor is but one of many legal experts calling for Cannon's recusal, as caselaw would appear to support their arguments...

In United States v. Kelley (1998), the U.S. 11th Circuit Court of Appeals observed:

A judge is under an affirmative, self-enforcing obligation to recuse himself sua sponte whenever the proper grounds exist. Section 455 does away with the old "duty to sit" doctrine and requires judges to resolve any doubts they may have in favor of disqualification. [Citations].

The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. [Citation].

The standard for recusal under section 455(a) is "whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt  about the judge's impartiality." [Citation].

The absence of a need to demonstrate actual bias was underscored in In re Boston's Children's First (1st Circuit 2001), a case where an appellate court granted a writ of mandamus compelling a judge's recusal based upon remarks by a U.S. District Court Judge to a newspaper reporter. The court stressed that its ruling "in no way indicates a finding of actual bias or partiality" by the judge. Nevertheless, the court found she had abused her discretion in failing to recuse because her comments to the reporter gave rise to an "appearance of partiality."

Recusal, or course, would not be mandated simply because, as two Trump-appointed judges and another arch conservative at the appeals level determined, Judge Cannon erred in earlier rulings both in respect to classified documents and her appointment of a special master. Her rulings, the three-judge appellate panel determined, amounted to an extraordinary effort to interfere with the same criminal investigation now before her, despite the absence of jurisdiction, let alone anything resembling a legal justification for her doing so.

The obligation to recuse is established by the appearance of Cannon's previous effort to carve out special rules to protect the former President who appointed her. As the 11th Circuit Court of Appeal held in their unanimous decision late last year, those special rules "would defy our Nation's founding principle that our law applies to all, without regard to numbers, wealth, or rank"...

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 caselaw limiting the federal courts' involvement in criminal investigations. And both would violate the bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

Given the foregoing, Judge Cannon should promptly recuse on her own motion. Alternatively, in a letter [PDF], expressing concerns about bias, good government group Free Speech for People has asked the Chief Judge of the Southern District of Florida, where the case has been filed, to reassign the matter to another judge if Cannon fails to do so on her own accord.

If neither reassignment nor recusal are forthcoming, the government may choose to file a motion seeking a recusal --- a motion that would have to be made and ruled upon by Cannon long before a trial date in order to avoid the issue of double jeopardy. If that motion is denied by Cannon, the government can then file a petition for issuance of a writ of mandamus with the 11th Circuit to compel her recusal.

The government has yet to offer any indication that it plans to do so.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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