Shortly after Judge Aileen M Cannon drew the assignment in June 2023 to oversee former US president Donald Trump’s classified documents case, two more experienced colleagues on the federal bench in Florida urged her to pass it up and hand it off to another jurist, according to two people briefed on the conversations.
The judges who approached Cannon – including the chief judge in the southern district of Florida, Cecilia M Altonaga – each asked her to consider whether it would be better if she were to decline the high-profile case, allowing it to go to another judge, the two people said.
But Cannon, who was appointed by Trump, wanted to oversee the case, and refused the judges’ entreaties. Her assignment raised eyebrows because she has scant trial experience and had previously shown unusual favour to Trump by intervening in a way that helped him in the criminal investigation that led to his indictment, only to be reversed in a critical rebuke by a conservative appeals court panel.
The extraordinary and previously undisclosed effort by Cannon’s colleagues to persuade her to step aside adds another dimension to the increasing criticism of how she has gone on to handle the case.
She has broken, according to lawyers who operate there, with a general practice of federal judges in the southern district of Florida of delegating some pretrial motions to a magistrate – in this instance, Judge Bruce E Reinhart. While he is subordinate to her, Reinhart is an older and much more experienced jurist. In 2022, he was the one who signed off on an FBI warrant to search Mar-a-Lago, Trump’s club and residence in Florida, for highly sensitive government files that Trump kept after leaving office.
Since then, Cannon has exhibited hostility to prosecutors, handled pretrial motions slowly, and indefinitely postponed the trial, declining to set a date for it to begin, even though both the prosecution and the defence had told her they could be ready to start this summer.
But Trump’s lawyers have urged her to delay any trial until after the election, and her handling of the case has virtually ensured they will succeed in that strategy. Should Trump retake the White House, he could order the justice department to drop the case.
Ultimately, Judge Cannon is not subject to the authority of her district court elders. Like any Senate-confirmed, presidentially appointed judge, she has a life tenure and independent standing
As Cannon’s handling of the case has come under intensifying scrutiny, her critics have suggested she could be in over her head, in the tank for Trump – or both.
Against that backdrop, word of the early efforts by her colleagues on the bench to persuade her to step aside – and the significance of her decision not to do so – has spread among other federal judges and the people who know them.
Neither Cannon nor Altonaga directly responded to requests for comment, including by emails sent via the clerk of the district court, Angela E Noble. Noble later wrote in an email, “Our judges do not comment on pending cases.”
It is routine for novice judges to look to more experienced jurists for informal advice or mentoring as they learn to perform their new roles. And as the district’s chief, Altonaga has a formal role in administering the federal judiciary in south Florida.
Ultimately, however, Cannon is not subject to the authority of her district court elders. Like any Senate-confirmed, presidentially appointed judge, she has a life tenure and independent standing and is free to choose to ignore any such advice.
The two people who discussed the efforts to persuade her to hand off the case spoke on condition of anonymity. Each had been told about it by different federal judges in the southern district of Florida, including Altonaga.
Neither of the people identified the second federal judge in Florida who had reached out to Cannon. One of the people confirmed the effort to persuade Cannon to step aside but did not describe the details of the conversations the two judges had with her. The other person offered more details.
This person said each outreach took place by telephone. The first judge to call Cannon, this person said, suggested to her that it would be better for the case to be handled by a jurist based closer to the district’s busiest courthouse in Miami, where the grand jury that indicted Trump had sat.
The Miami courthouse also had a secure facility approved to hold the sort of highly classified information that would be discussed in pretrial motions and used as evidence in the case. Cannon is the sole judge in the federal courthouse in Fort Pierce, a two-hour drive north of Miami. When she was assigned to the case, the courthouse in Fort Pierce did not have a secure facility.
Because Cannon kept the case, taxpayers have since had to pay to build a secure room – known as a sensitive compartmented information facility, or SCIF – there.
After that initial argument failed to sway Cannon to step aside, the person said, Altonaga placed a call.
The chief judge – an appointee of president George W Bush – is said to have made a more pointed argument: it would be bad optics for Cannon to oversee the trial because of what had happened during the criminal investigation that led to Trump’s indictment on charges of illegally retaining national security documents after leaving office and obstructing government efforts to retrieve them.
In August 2022, the FBI obtained a search warrant from Reinhart to go to Mar-a-Lago to hunt for any remaining classified documents that Trump had failed to turn over after receiving a subpoena for them.
The agents found thousands of government files that Trump had kept, even though under the Presidential Records Act, they should have gone to the National Archives when he left office. The files the FBI recovered included more than 100 marked as classified, including some at the most highly restricted level.
Soon after the search, Trump filed a lawsuit against the government protesting the seizure of the materials, which he claimed were his personal property, and asking for a special master to be appointed to sift through them. Rather than letting Reinhart handle that lawsuit, as would be the normal procedure, Cannon chose to decide the matter.
Shocking legal experts across ideological lines, she banned investigators from gaining access to the evidence and appointed a special master, although she said that person would only make recommendations to her, and she would make the final decisions.
Cannon’s decision was unusual in part because she intervened before there were any charges – treating Trump differently from typical targets of search warrants based on his supposed special status as a former president.
She also directed the special master to consider whether some of the seized files should be permanently kept from investigators under executive privilege – a notion that was widely seen as dubious, since it has never successfully been made in a criminal case.
Prosecutors appealed to the 11th US circuit court of appeals in Atlanta. In a repudiation, a three-judge panel that included two Trump appointees reversed her order and ruled that she never had legal authority to intervene in the first place.
“It is indeed extraordinary for a warrant to be executed at the home of a former president – but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” the panel wrote.
Limits on when courts can interfere with a criminal investigation “apply no matter who the government is investigating”, it added. “To create a special exception here would defy our nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth or rank’.”
Trump’s lawyers appealed to the US supreme court, but it declined to hear the case. In December 2022, Cannon dismissed Trump’s lawsuit.
Six months later, the grand jury in Miami indicted Trump, alleging in detail how he had stored highly sensitive documents in a bathroom and on a stage at Mar-a-Lago, and persistently led his aides and lawyers to stymie efforts by the justice department and the National Archives to recover them.
Under the district’s standard practices, according to its clerk, the new case went into a system that would randomly assign it to one of a handful of judges whose chambers are in the West Palm Beach division, which covers Mar-a-Lago, or in either of its two adjoining divisions, Fort Pierce and Fort Lauderdale.
It went to Cannon. – This article originally appeared in The New York Times
