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Trump-appointed judge is ‘sabotaging’ Mar-a-Lago criminal case in his favour, legal experts claim

‘It’s deeply offensive to the rule of law for judges to bend the law to benefit those who put them on the bench. Sadly, Cannon does just that,’ Dennis Aftergut and Laurence Tribe argue

Gustaf Kilander
Washington, DC
Thursday 18 January 2024 16:41 GMT
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The judge in the Mar-a-Lago classified documents case is sabotaging the proceedings in favour of former president, Donald Trump, two legal experts have argued.

Dennis Aftergut, a former federal prosecutor, now counsel to Lawyers Defending American Democracy, and Laurence Tribe, professor emeritus at Harvard, wrote for Slate that “it’s deeply offensive to the rule of law for judges to bend the law to benefit those who put them on the bench. Sadly, Cannon does just that”.

Mr Trump appointed Judge Cannon in 2020. She was confirmed by the Senate in the days following that year’s election.

On Friday, Judge Cannon issued a ruling rejecting a request from special counsel Jack Smith that she order Mr Trump to say if he will use an “advice of counsel” defence before the proceedings move on to the trial, which is scheduled for 20 May.

The advance notice would speed up the trial as defendants using that defence will need to provide further discovery to the prosecution. The “advice of counsel” defence removes attorney-client privilege, meaning that defendants must share all their communications with their lawyers.

Judge Cannon’s order rejecting the request states that the special counsel’s motion was “not amenable to proper consideration at this juncture, prior to at least partial resolution of pretrial motions” and additional discovery.

“Sound innocuous? It’s anything but,” Mr Tribe and Mr Aftergut write. “Instead, it’s part of a pattern we’ve already seen of Cannon laying the groundwork for delaying Trump’s trial – until it’s too late for a jury to be empaneled and the case tried to verdict before the election. That is, of course, just what Trump has been angling for.”

They add that Judge Cannon issued an order in November last year “slow-walking” all pretrial motions.

Former Central Intelligence Agency attorney Brian Greer told Politico that her move not to expedite pretrial motions “could be seen as a stealth attempt to delay the ultimate trial date without actually announcing that yet”.

Andrew Weissmann, a New York University law professor and the former deputy to special counsel Robert Mueller, wrote on X in November, “Judge Cannon’s bias is showing over and over again. Smith has to be weighing whether, when, and how to seek her reversal by the Court of Appeals and her removal”.

“Not scheduling a CIPA Section 5 hearing, which is routine, is a clear sign she is just as much in the bag for Trump as when she issued her horrendous pretrial rulings (both reversed in scathing language by the conservative 11th Circuit). What a piece of work is she,” he added.

The special counsel had requested a CIPA Section 5 hearing where the defendant would be required to reveal what classified information he’s planning to use at trial.

“By continuing to maintain the trial date while rendering the date virtually impossible to keep, Cannon evidently hopes to maintain plausible deniability from charges like Greer’s or Weissmann’s,” the legal experts write for Slate. “At the same time, her pretence that the trial will commence on schedule prevents any attempt by Fulton County, Georgia, district attorney Fani Willis to seek to advance into May the scheduling of her prosecution of Trump for attempting to interfere with Georgia’s 2020 election.”

“It’s difficult to imagine that anything that deserves to be called justice will emerge from a criminal proceeding over which Cannon presides, in which the fate of her benefactor, and thus her own career, is at stake,” they note.

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