Court Accountability Releases Statement on Judge Cannon's decision
July 16, 2024
Court Accountability Releases Statement on Judge Cannon's decision
Judge Cannon's decision on Monday to declare Jack Smith’s prosecution of Donald Trump unconstitutional was her ultimate act of fealty to Trump.
Cannon’s order to throw out Smith’s classified documents case against Trump, if upheld by the Supreme Court, will also mean Smith’s election interference case against Trump in D.C. must also be thrown out.
But even if Cannon’s decision were reversed on appeal, the appeals process is unlikely to conclude before the 2024 election, and if Trump were to return to the Presidency he would be able to shut the prosecutions down himself.
Like the U.S. Supreme Court’s anti-democratic right-wing majority, which delayed its review and ruling in Trump’s immunity case, Cannon issued a ruling designed to aid Trump’s re-election prospects by preventing the American public from accessing key information about his criminality as they go to the polls in November.
For more on Cannon’s background and her actions as a judge, find a new bio we prepared as part of joint resources on Project 2025 here.
Cannon’s Pattern of MAGA Partisanship
Trump’s lawyers raised the argument with Cannon in February, expecting she would be receptive to it, given her history of trying to shield Trump from accountability.
In 2022, Cannon tried to interfere on Trump’s behalf with the FBI’s review of the classified documents found at Mar-a-Lago. An 11th Circuit panel made up entirely of Republican appointees unanimously rebuked Cannon’s “radical reordering of our caselaw” to protect Trump from the investigation.
Roughly six months later, Cannon was assigned the criminal case against Trump. At that point, two colleagues on the Southern Florida District Court, including the chief judge, privately urged her to recuse herself and hand the case to another jurist. Cannon did not recuse.
After refusing to recuse, Cannon moved back deadlines multiple times, citing procedural complexities and the need for thorough consideration of legal arguments.
Justice Clarence Thomas, in his Trump v. U.S. concurrence, provided a roadmap for Cannon to dismiss the case and called on her to invalidate the special counsel regulations. He wrote:
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Lest there be any question that Thomas was talking directly to Cannon, here is an exchange with Trump’s lawyer during oral arguments in the immunity case:
JUSTICE THOMAS: Did you, in this litigation, challenge the appointment of special counsel?
MR. SAUER: Not directly. We have done so in the Southern District of Florida case.
The convergences do not stop there:
As the New Yorker’s Jane Mayer noted, one of the lawyers who argued for dismissal was Gene Schaerr, a law partner of Mark Paoletta, Ginni Thomas’s lawyer. Paoletta is also Justice Thomas’s primary defender in the public square and appeared in Harlan Crow’s painting with Justice Thomas and Leonard Leo.
Cannon has been a member of Leonard Leo’s Federalist Society since 2005.
Investigative reporters have documented that Cannon failed to disclose private reimbursement for attending two seminars at a luxury resort in Montana run by George Mason University’s Antonin Scalia Law School, which has received millions of dollars in gifts orchestrated by Leo.
It is notable that Trump’s lawyers did not raise the issue in Smith’s election interference case before Judge Chutkan. Unlike Cannon, Chutkan had shown no bias or partiality toward Trump. She rejected his attempt to prevent the January 6th Committee from receiving White House documents about that day from the National Archives. What’s more, Chutkan would have been bound by the D.C. Circuit’s 2019 ruling upholding the special counsel regulations’ constitutionality against a similar attack on Robert Mueller’s Russia investigation.
Cannon, not strictly bound by D.C. Circuit precedent, waved away that ruling. She also stepped away from the U.S. Supreme Court’s precedent in Morrison v. Olson (1988) affirming the power of Congress to let judges appointed independent counsels, under a prior law. She also disregarded that numerous courts have rejected challenges to independent or special counsel appointments that have been made over the 12 presidential terms since the Ethics in Government Act was first passed by Congress in 1978.
Trump’s Project 2025 Judge
Cannon’s reasoning–if endorsed by the Supreme Court–would forbid the Justice Department from ensuring its politically-sensitive prosecutions remain independent despite the Department’s long-standing rules and practices. This tracks Project 2025’s ambitions for a politicized Justice Department–a longtime goal of the Federalist Society and the right-wing legal movement, which subscribes to the so-called Unitary Executive Theory of an all-powerful President.
As Jeffrey Clark–one of Trump’s legal architects to overturn the 2020 Election and potential next Attorney General–has claimed: “The U.S. Justice Department Is Not Independent.”
Because Cannon’s ruling is consistent with the broader ideological goals of the right-wing legal movement, the 11th Circuit’s Republican-appointed majority may be more receptive to ultimately upholding Cannon’s order than they were when she was improvising for Trump two years ago.
An 11th Circuit decision affirming Cannon’s order would create a circuit split with the D.C. Circuit, all but guaranteeing the Supreme Court would take up the case and issue a ruling on the constitutionality of Smith’s prosecutions–unless Trump returns to the Presidency and shuts them down first.