Aileen Cannon’s Shadow Moves Scrutinized

The judge overseeing Donald Trump’s classified documents case has been criticized for creating a so-called “shadow docket” to deal with filings connected to the case.

Speaking on the Jack: A Special Counsel Podcast, hosts Alison Gill and Andrew McCabe discussed how Judge Aileen Cannon prohibited any sealed or redacted filings appearing on the Florida public docket without permission from the court ahead of time.

As a result of Cannon’s February 6 ruling, all filings submitted as part of the case in which Trump has pleaded not guilty to 40 federal charges that he illegally retained classified documents after he left office then obstructed the federal attempt to retrieve them, must first be emailed to the opposing counsel and to Cannon, before it appears in the public docket.

“So in a great effort to be transparent, she’s essentially created her own little shadow docket,” McCabe said.

McCabe and Gill added that the potential consequences of the shadow docket imposed by Cannon were seen when Special Counsel Jack Smith’s team and Trump’s lawyers tried to submit their proposed jury questionnaires as part of the selection process. The trial is expected to be postponed from its current May start date.

Smith’s office wanted to file their questions under seal, arguing that if it becomes public, potential jury members would have “advance information” about the contents of the questionnaire, and they may use this to “craft their answers to increase their odds of serving or avoiding service” on the high-profile jury involving the former president.

“It is normal to file your proposed jury questions to the court ahead of time, and the other side gets an opportunity to object if you’re asking some prejudicial questions or something they can object to,” McCabe said.

“So of course you wouldn’t want the general public to know what the questions are, because you don’t want some potential juror with an agenda to come in and try to game their way onto or off of the trial.

“This is literally going to be the trial of the century, this one and the D.C. [election obstruction] case. So there could be people scheming to be on that jury because they think it’s an opportunity to write a book, to get rich, to become famous, or maybe worse, an opportunity to sink the trial or to vote for conviction despite never actually considering the evidence,” he added.

Trump’s legal team opposed sealing the jury questionnaire, which aims to determine if any potential jury members will display any bias or predetermination which could influence their decision in determining guilt.

Smith’s office withdrew their motion and submitted their questionnaire on the public docket, which included asking potential jurors whether they believe the 2020 election was “stolen,” a false claim frequently pushed by Trump.

Speaking on the podcast, Gill suggested Smith withdrew the request to file the questions under seal as a “dig” at Cannon after she failed to respond to it in a timely manner.

“If you’re going have a mini shadow docket, you have to kind of at least stick with it,” McCabe added. “You’ve got to read the filings and make some rulings on time.”

In a series of posts on X, formerly Twitter, Lawfare senior editor Roger Parloff suggested Cannon had “inadvertently created a temporary secret docket” in her ruling to prevent fillings from being sealed from the public.

“On Feb 6, apparently feeling that the govt was keeping too many (unclassified) documents sealed, she ordered that no more redacted or sealed filings would be accepted without a prior *public* showing of particularized need,” Parloff wrote.

“Accordingly, when the defense filed motions to dismiss & suppress, instead of filing redacted motions with sealed exhibits, as in the past, at least eight of their motions were not filed at all.”