Is there something rotten in the state of Florida?

Ever since it became clear that Judge Aileen Cannon – a Trump appointee – would be presiding over the Mar-a-Lago documents case in Fort Pierce, Florida, she’s been under intense scrutiny and faced accusations of bias in favor of the former president.

The case for the prosecution: she was reversed by the Eleventh Circuit Court of Appeals, a conservative court, after she approved Trump’s request to allow a Special Master to review the hoard of classified documents he’d kept, potentially shielding it from DOJ investigators. She’s made some odd rulings – more on that later – and she was of course given a lifetime position by the former president. She’s new to the bench, having been appointed during Trump’s lame-duck period. She’s made mistakes, such as failing to swear in a prospective jury pool, and is now overseeing one of the most consequential cases in US history.

The case for the defense: it’s not unusual for federal judges to get reversed on appeal. Pro-Trump factions try to use this same argument against the Special Counsel – “Jack Smith was overturned by the Supreme Court in the past!”. Yes, that happens. It doesn’t mean that someone’s entire career is a failure. While Judge Cannon has made subsequent rulings that many felt were one-sided, she hasn’t always ruled in Trump’s favor. She was skeptical of his argument that he needed to delay the trial until after the 2024 election and instead set a May start date.

Is that date now in jeopardy? While the trial is theoretically slated to begin in May, recent orders have postponed some key pretrial deadlines, ostensibly because the defense claimed to be having challenges with viewing classified information.

The latest sticking point involves the Classified Information Procedures Act (CIPA), which addresses how classified information can be used at trial. The Act allows both parties to hash out exactly which information will be used, giving either side adequate time to prepare. It’s also designed to prevent ‘graymail’, whereby a defendant attempts to foreclose criminal proceedings by threatening to make classified information public during the trial, forcing charges to be dropped in the name of national security.

Judge Cannon has delayed key dates in the CIPA process, making the May trial date look to be on shaky ground. Her original schedule penciled in a CIPA Section 4 hearing for October, which would have decided whether the Special Counsel could redact sections of classified information or provide summaries that wouldn’t disclose sensitive information. That hearing has been pushed back to February.

She recently rejected the Government’s request to set a deadline for Trump to provide notice of which classified materials he intends to use at trial under CIPA Section 5, writing in a paperless order that “CIPA Section 5 deadlines…will be set following the March 1, 2024, scheduling conference”.

Setting CIPA deadlines is routine, and her decision left many legal observers baffled. Professor Andrew Weissman, who was part of Robert Mueller’s team investigating alleged Russian interference in the 2016 election, noted with alarm on MSNBC that he is “concerned about the Judge’s bias…. The government asked her…to schedule…a very routine hearing and she basically said, 'denied.' And so she's pushed off all these internal dates of when things are due and when she'll hold hearings… So I think this is something to keep your eye on — her gamesmanship."

She’s also taken a long time to issue decisions, dragging out what should be routine matters. As Politico notes, “she took more than five weeks to hold a hearing on Trump’s request for a new schedule and nine days more after that to issue a new one. And when she did finally set a new schedule, she put off the deadline for many pretrial motions by nearly 16 weeks.”

Compare that with Judge Chutkhan, who is overseeing the federal case into election interference in Washington D.C. That trial is set for March and thus far, the Judge seems determined not to drag it out beyond that date. She has repeatedly rebuffed the Trump team’s delay tactics and even signaled that if Trump were to continue to make inflammatory remarks, she could be pushed to hold the trial earlier.

Her docket is well-managed, and her scheduling is tight but fair. She’s very efficient, issuing well-considered orders swiftly. While Judge Cannon has issued a slew of paperless orders, Judge Chutkhan has written many concise paper orders, citing the cases she’s relying upon. While legal observers have noted Judge Cannon’s tendency to appear exasperated at the Government, Judge Chutkhan has scrutinized both parties; her hearings are peppered with ironic eyebrow raises and good humor.

It's certainly a study in contrasts. Is Judge Cannon biased and Judge Chutkhan fair? CNN legal analyst and former assistant US attorney Elie Honig asked us in August to withhold our judgement for now: “Whether you love Trump or hate him, whether you hope he rots or walks, whether you want to don a team jersey and cheer, or dispassionately observe how the process plays out, let’s all agree to assume good faith by both judges. Both deserve that presumption, based on their experience before taking the bench, and by their initial handling of the two new Trump indictments.” The strange way Judge Cannon is handling the CIPA schedule is starting to make that harder.