CREW: 'This Court has the authority and duty to order the case be reassigned to a different judge'...
By Ernest A. Canning on 9/5/2024, 12:35pm PT  

Attorneys from the watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), including a retired federal judge, have now filed an Amici Curiae Brief [PDF] (friends of the court brief) in the 11th Circuit Court of Appeal in relation to the stolen classified documents case (United States v. Trump).

The case was recently dismissed by U.S. District Court Judge Aileen Cannon, a Donald Trump appointee, who contended that Attorney General Merrick Garland did not have the power to appoint Jack Smith as Special Counsel. In the view of former Acting Solicitor General Neal Katyal, the "devastating" 81-page brief [PDF] Smith filed in conjunction with the government's appeal of that dismissal order, suggests a near certainty that Cannon's dismissal order will be reversed by the appellate court.

While Smith may have been constrained by DOJ policy not to seek Judge Cannon's removal in his motion, CREW isn't so constrained...

"If the Court reverses Judge...Cannon's ruling", the CREW team of legal experts assert, "it will be the third time in under three years it has had to do so in a seeming straightforward case about the former president's unauthorized possession of government documents."

Quoting the 11th Circuit's own words in its two previous reversals of Cannon's rulings, CREW notes some of the Trump-appointed jurist's "rulings have been so unprecedented that affirming them would...'violate bedrock separation-of-powers limitations' and require 'a radical reordering of our caselaw'..."

A third reversal now will come after Judge Cannon dismissed this case in a decision that hinged on ignoring the plain text of four federal statutes and dismissing as "dicta" a landmark Supreme Court opinion confirming the Attorney General's power to appoint a special Counsel. A reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon's many efforts to undermine and derail the prosecution of this case.

CREW argues that Judge Cannon was aware of both Trump's penchant for delay and the likelihood that, if re-elected, Trump would order a new Attorney General to dismiss the case. Nevertheless, Judge Cannon failed "over the course of one year to move the case forward in any significant way." The brief also pointed to "Judge Cannon's inexplicable call for jury instructions on a spurious legal defense that would have gutted the Government’s case had it ever gone to trial." Her actions, CREW concludes, would cause a reasonable person to question Judge Cannon's impartiality.

Citing both 11th Circuit and Supreme Court precedent, CREW concludes:

If a district judge's continued participation in a case presents a significant risk of undermining this public confidence, this Court has the authority and the duty to order the case be reassigned to a different judge. (Emphasis in original text)

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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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Article Categories: Accountability, Dept. of Justice, Donald Trump, Merrick Garland, Neal Katyal, Jack Smith, Aileen Cannon