What's Going on With Judge Cannon?

There is some weird stuff going down in the Southern District of Florida and it’s got legal analysts worried about the state of the former president’s trial on charges that he unlawfully retained national defense information and obstructed its retrieval.

This week Judge Aileen Cannon, who is overseeing the case, issued an inexplicable order asking both sides to “engage” with two scenarios when drafting proposed jury instructions. Both scenarios center on the Presidential Records Act (PRA) and Trump’s patently absurd contention that he converted classified information to personal records, simply through the act of removing them to Mar-a-Lago. It’s bizarre that she’s even asking the Government to “engage” with this suggestion, as the PRA has no bearing on whether a former president can take and hide national defense information in violation of the Espionage Act, which he’s been charged under.

In the first scenario, a jury would be asked to determine whether the records he unlawfully took are personal or presidential. The information he took is clearly not personal, like a diary or press clippings could be, so it seems disingenuous to even entertain the idea. The second scenario states that “a president has sole authority under the PRA to categorize records as personal or presidential” and that “neither a court nor a jury is permitted to make or review such a categorization decision.” If that were true, there’d be no case. We know the PRA exists to stop presidents from taking and keeping presidential records, so in what universe could it be true when applied to the conduct described in the indictment?

Each scenario misinterprets the law. The judge is supposed to instruct a jury on the law, so how can we trust that she’s going to do that properly when it seems from this order that she’s not even sure on the law herself? The second scenario is especially troubling because it could open the door to a nightmare situation – seating a jury then having the judge decide that the former president’s actions constitute a reclassification of the material as personal and therefore unreviewable, leading to a dismissal of the case. Once a jury is sworn in, double jeopardy would apply and the case could never be tried again. 

It's also concerning because the judge needn’t have taken this route. If she’d already decided Trump’s motion to dismiss based on the PRA, no one would need to “engage” with these scenarios. Either she’d have rightly dismissed the motion and shut down that argument, or she’d have wrongly granted it and it’d be “hello Eleventh Circuit” for an appeal by Jack Smith. As former federal judge Nancy Gertner told The Washington Post, “What she has asked the parties to do is very, very troubling… She is giving credence to arguments that are on their face absurd. She is ignoring a raft of other motions, equally absurd, that are unreasonably delaying the case.”

The judge needs to rule on the law, by dealing with Trump’s motions to dismiss, then consider jury instructions closer to trial – and to be clear, there is no trial date in this case. The way the order is worded makes it seem as if she’ll be asking the jury to decide what the law is, when that’s her job. Jason Baron, former director of litigation at the National Archives and Records Administration has compared this farcical situation to a hallucinatory fantasy. “Like the queen in ‘Alice in Wonderland,’ Judge Cannon appears to be asking the jury to believe at least two impossible things before breakfast. First, that a president has unfettered discretion to decide that documents marked ‘top secret’ are his own personal records, just because he decided to keep them for himself. And second, that a president can avoid criminal prosecution under the Espionage Act because he decided that classified records were really his under the PRA. In both cases, the judge profoundly misinterprets the law.”

This week we also learned that Judge Cannon is losing law clerks at an alarming rate, although her chambers is apparently fully staffed now. Clerkships are highly prized, so it’s interesting to learn that she’s experiencing turn over like this, with people leaving before their appointment is up. Reporting on this subject by David Lat suggests that the stress of overseeing this case is spilling over into anger and anxiety. As Lat writes, “as the months passed, the stress and workload increased in chambers. Judge Cannon became afflicted with an unfortunate combination of anxiety, from handling a matter of national importance, and insecurity, from never having run a case of this complexity.” Clerks also had difficulty obtaining security clearances to oversee a case of national magnitude, leading to an uneven spread of responsibilities. Perhaps the turmoil behind the scenes is manifesting itself in turmoil on the docket.