Dismissal of Trump documents prosecution draws new scrutiny to Judge Cannon

U.S. District Judge Aileen M. Cannon, an appointee of President Donald Trump with relatively little experience on the bench, has been under intense scrutiny since she was selected to preside over Trump’s criminal trial for allegedly illegally retaining classified documents and obstructing government efforts to retrieve them.

She has been praised by Republicans, denounced by Democrats and second-guessed at almost every turn by legal experts. That clamor turned deafening Monday, when the federal judge in Florida tossed the high-profile case in a bombshell move hours before Trump officially became his party’s presidential nominee.

Ruling on a motion Trump’s attorneys submitted months ago, Cannon dismissed what many legal scholars considered the strongest criminal case against the former president and the one that was on the surest legal footing. Centered on highly sensitive national secrets and with significant evidence of alleged obstruction, it also appeared to be the one Trump most feared.

She ruled not on the merits of the case, but on the legality of the Justice Department’s appointment of a special counsel to oversee it.

Cannon’s 93-page opinion embraced a legal theory that special counsel Jack Smith was improperly appointed. It is one that has gained traction in conservative legal circles but remains “an outlier,” rejected by a handful of other judges who have considered it, said conservative legal scholar Jonathan Turley.

He called the ruling a “three-point shot” for Trump, who has repeatedly raised long-shot legal arguments in the case.

“This is a seismic ruling. The Florida case was the greatest threat to Trump,” Turley said. “The other cases have constitutional and statutory problems. The problems have increased over the last year, especially with the recent Supreme Court rulings in the Fisher and Trump cases.”

Turley was referring to recent decisions by the high court that prosecutors improperly used an obstruction charge to prosecute hundreds of Jan. 6 rioters and that Trump had broad presidential immunity from prosecution. The immunity decision narrowed key aspects of the indictment Trump faces in D.C. federal court for allegedly trying to overturn the 2020 election, with prosecutors having to prove which of his acts were official and which evidence they can use in the case. The obstruction ruling could also affect that indictment, because two of the four counts Smith brought against Trump involved obstruction.

Smith’s office said Monday it will appeal Cannon’s classified-documents ruling to the 11th Circuit Court of Appeals, and the case could eventually make its way to the Supreme Court. Still, her dismissal of the indictment all but ensures that no trial will occur before November’s election or Biden leaves office. If he becomes president, Trump could ask his own Justice Department to drop the appeal of Cannon’s ruling.

Reaction on Monday was swift and polarized, a dynamic that has played out again and again after Cannon’s rulings in the case. Democrats slammed the judge for what they described as putting politics above the law, while Republicans praised her for doing what they felt was overdue. Legal scholars squabbled.

“This breathtakingly misguided ruling flies in the face of long-accepted practice and repetitive judicial precedence,” Sen. Majority Leader Charles E. Schumer (D-N.Y.) posted on X. “It is wrong on the law and must be appealed immediately. This is further evidence that Judge Cannon cannot handle this case impartially and must be reassigned.”

Rep. Matt Gaetz (R-Fla.) posted a photo of Cannon on X and wrote: “Future Supreme Court Justice Cannon.”

In her ruling, Cannon sided with Trump, who argued that the Constitution does not permit Attorney General Merrick Garland to appoint a special counsel without Senate confirmation. The special counsel told Cannon that Garland had such authority - a position other federal judges have upheld when ruling on challenges to special counsel appointments in other cases.

While some special counsels are serving as U.S. attorneys when they are appointed, and have been confirmed by the Senate for those positions, others - including Smith - are tapped for the job while serving in jobs that don’t require such confirmation.

Legal scholars pointed out that Cannon was following a legal road map that was laid out by Supreme Court Justice Clarence Thomas, who argued in a concurring opinion in the recent immunity decision that Smith was improperly appointed. No other justice joined Thomas in that opinion.

Leah Litman, a law professor and host of a liberal legal podcast, quipped on X that “Justice Thomas’s ‘Cannon-currence’ worked.”

Controversy has dogged Cannon’s other rulings - even before the case began.

The judge grabbed headlines in fall 2022 when she intervened in the FBI’s investigation of Trump for his handling of classified documents, slowing the case. She appointed an expert to review material seized from Mar-a-Lago, Trump’s Florida home and private club, and barred agents from looking at those items before the review was concluded.

In making that ruling, Cannon found that Trump required extra protection as a former president, writing that the “stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

An 11th Circuit panel unanimously reversed Cannon’s decision, saying it was unwilling to “carve out an unprecedented exception in our law for former presidents.”

The ruling later prompted calls for Cannon’s recusal from Trump’s classified documents case and led some legal experts to question whether she was out of her depth in handling the prosecution of a former president.

Cannon, 43, was appointed by Trump to the U.S. District Court for the Southern District of Florida in 2020 and had less than three years’ experience as a judge when she was assigned the classified documents case. A former federal prosecutor, she is one of more than 200 conservative lawyers Trump nominated to the federal bench.

She was born in Colombia, the daughter of a Cuban immigrant mother, and raised in Miami. She is a graduate of Duke University and joined the conservative Federalist Society as a law student.

Cannon raised eyebrows again in March, when she issued an unusual order regarding jury instructions that are given at the end of a trial, even though she was not close to starting the classified documents trial and had yet to resolve many pretrial issues.

In May, Cannon announced Trump’s trial would be delayed indefinitely because of the complicated legal issues involved in the case, angering critics who accused her of slow-walking a trial they thought should play out before voters made their choice in this year’s election.

University of Michigan law professor Barbara L. McQuade said Cannon’s inexperience was on clear display in such a consequential case. She also called Cannon’s Monday ruling an outlier and said it had been rejected by other courts.

“Judge Cannon’s handling of the case has been shaky from the start,” McQuade wrote in an email. “After the criminal case was assigned to her, she worked at an incredibly slow pace to hold hearings on motions and to address how classified documents would be handled at trial.”

But others dismissed such arguments.

David Marcus, a Florida attorney, said the work Cannon put into her ruling was impressive and noted that she was handling an unprecedented legal proceeding.

“This is the biggest criminal case there is,” Marcus said. “She’s taking the time to look at it, rule on it and not rush it to trial.”

Turley said Cannon’s ruling on the dismissal had merit, arguing that the Constitution clearly lays out that appointments such as the special counsel must be made by the president and approved by the Senate, not simply announced by the attorney general.

Others rejected that idea.

“What she was raising was neither a frivolous or easy question,” Turley said. “The one thing I think critics have to acknowledge is that it is a glaring anomaly that we have this formal constitutional process that can simply be circumvented with the unilateral appointment of a private citizen.”

What’s clear is that Cannon has dealt another significant blow to Smith’s prosecution of Trump, which was already damaged. McQuade said the special counsel could take comfort on one point.

“This ruling may be a blessing in disguise for Jack Smith, who may now appeal and ask the court to replace Cannon as the judge on this case,” McQuade wrote.