Retired federal judge and ethics experts want Judge Cannon taken off Trump documents case

By Tierney Sneed, CNN

(CNN) — A former federal judge along with a government watchdog group and two top scholars on judicial ethics want an appeals court to reassign the classified documents case against former President Donald Trump to a new judge.

The group is seeking to file an amicus brief with the 11th US Circuit Court of Appeals, criticizing the way Judge Aileen Cannon, who dismissed the classified documents prosecution earlier this summer, has handled the criminal case.

They also took issue with Cannon allowing Trump to slow down the federal investigation in 2022 by appointing a special master to review evidence and blocking investigators’ access to documents seized at his Mar-a-Lago estate. The 11th Circuit reversed Cannon’s decisions on this matter.

Retired Judge Nancy Gertner, who was a federal trial judge in Massachusetts; legal ethics scholars Stephen Gillers and James J. Sample, and the government watchdog group known as Citizens for Responsibility and Ethics in Washington are seeking to file the brief with the Atlanta-based appeals court that is considering whether Cannon’s dismissal decision should be reversed. Cannon had said in her ruling that the appointment of special counsel Jack Smith violated the Constitution.

It is very rare for appeals courts to reassign a trial judge on a case. Smith notably did not request for Cannon to recuse herself or for the case to be reassigned in his filings. An amicus brief, or “friend of the court” brief, is from someone who is not a party to the case and is merely meant to provide information to the court. It is up to the court how much legal weight — if any at all – is given to an amicus brief.

“Even before she dismissed the case on novel grounds that ignored both statutory authority and Supreme Court precedent, Judge Cannon’s other extraordinary rulings and sluggish case administration had provoked well-founded concerns that she might be biased against the Government’s case and unable to manage that case impartially,” they wrote in the proposed brief, which would need permission from the court to be allowed into the record.

They pointed to Cannon’s slowness to resolve issues in the criminal case that has been mired in delay, as well as her controversial request for lawyers on both sides to file briefs on a hypothetical jury instruction that would seem to virtually guarantee Trump’s acquittal.

“Judge Cannon’s conduct — including her solicitation of legally baseless jury instructions — has repeatedly appeared to cross the line from mere legal error to active judicial intervention and advocacy on behalf of the former president,” the proposed brief says.

Cannon’s critics argued in their proposed amicus brief that “rulings and other conduct create the appearance of an unshakeable conviction that subjecting a former president to ordinary criminal procedures represents an intolerable affront to his dignity.”

This story has been updated with additional information.

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