Aileen Cannon’s ‘Extreme Error’ Could See Her Thrown Off Trump Case: Lawyer

Special Counsel Jack Smith has been urged to call for the removal of the judge in Donald Trump’s classified documents case, with one legal expert suggesting an “extreme error” she made gave him the justification to do so.

Joyce Vance, a former federal prosecutor, was reacting to the ongoing controversy surrounding Judge Aileen Cannon, who has faced frequent calls to be removed from the federal case in which Trump has pleaded not guilty to 40 charges over concerns about her decisions appearing to benefit the former president.

The latest criticism of Cannon, who was nominated to the bench by Trump, came after she asked lawyers for the former president and Special Counsel Jack Smith’s office to submit two sets of proposed jury instructions before deliberations in the trial begin, providing “competing scenarios” on the interpretation of the Presidential Records Act (PRA), which forms the basis of part of Trump’s defense.

Critics suggested the move will essentially point the jury in the direction of finding Trump not guilty based on disputed or inaccurate interpretations of the PRA, which then could not be appealed by the government.

Writing in her Civil Discourse blog, Vance urged Smith to try and recuse Cannon from the case over her judgements, while noting is not the first time that Cannon has faced calls to be removed or recused from the trial.

These included in December 2022 when the US Court of Appeals for the 11th Circuit reversed a decision that would have meant Trump could have challenged the search warrant served at Mar-a-Lago. The appeals court also struck down a ruling from Cannon where she ordered a special master to review all the documents the FBI seized from Trump’s Mar-a-Lago resort, which would have prevented the Department of Justice from accessing their own evidence, as she did not have the authority to appoint one in the first place.

Vance said that the recent ruling was enough for Cannon to be removed from the case over concerns about her impartiality, while citing how she had previously worked on a case, U.S. vs Martin, where a court ordered the district judge to step aside due to “repeated reversals” of his rulings.

“Judge Cannon’s decision was favorable to Trump by virtue of all but ignoring the law, refusing to apply it correctly, and rejecting the government’s position without explaining why,” Vance wrote.

“On its own it was the sort of extreme error that rises to the level of Martin, calling into question both whether the judge could set aside her previous views and whether a reasonable person would question her ability to handle the case fairly.”

“Her subsequent rulings have done nothing to ameliorate the early concerns about her ability to handle the case fairly,” Vance added.

Vance also discussed the issues Smith would face if he were to try and remove Cannon from overseeing the trial.

“Filing a motion for recusal now would almost certainly mean the case can’t be tried ahead of the election because of the time it would take a new judge to get up to speed and the pendency of issues regarding the use of classified information,” Vance wrote.

“But it would be better to run the risk of delay than it would be to give Cannon the opportunity to derail the prosecution in a way that would give her the final say over the fate of the case.”

A spokesperson for Smith’s office declined to comment.

Trump and his lawyer argued in a motion to dismiss filing that the Presidential Records Act allowed him to determine the sensitive materials he took from the White House in January 2021 as his personal property, so he can’t be charged with their unauthorized possession.

Cannon was previously criticized for calling for potential jury instructions that are linked to a disputed defense that the former president is using to try and throw out the case, rather than outright dismissing the Presidential Records Act defense herself.