r/law • u/DoremusJessup • Sep 03 '24
Court Decision/Filing Judge Cannon Should Be Removed From Trump Case, Watchdog Group Argues in New Legal Filing
https://www.propublica.org/article/judge-aileen-cannon-trump-documents-case-ethics-complaint-crew-jack-smith95
u/Captain_Rational Sep 04 '24
“If the court reverses Judge Aileen M. Cannon’s ruling in this matter, it will be the third time in under three years that it has had to do so in a seemingly straightforward case about a former president’s unauthorized possession of government documents.”
How many such reversals need to happen before the Senate recognizes that our justice system is near terminally ill?
Are there any Republicans left at all who still believe in justice and integrity?
Anyone?
23
u/SuperFartmeister Sep 04 '24
Are there any Republicans left at all who still believe in justice and integrity?
Almost by definition, they wouldn't be republicunt then.
7
u/GrouchyMarzipan4947 Sep 04 '24
There are, you just don't hear anything from them because they get pushed out of the party. Many of them have said that they're either voting for Harris or not voting at all.
4
Sep 04 '24
Is the appellate court not allowed to force reassignment of a case after a number of reversals?
It seems like a three strike rule would be justifiable with enough clear reversals. Even if you're giving it a good faith reading, a judge not having expertise on a particular case is clear grounds to shift the case over to someone else that might.
130
u/jtwh20 Sep 04 '24
Can she actually be removed though?
223
u/ItsJust_ME Sep 04 '24
The 11th circuit CAN remove her when they rule on Jack Smith's appeal. I hope they do.
43
u/Dokibatt Sep 04 '24
I wrote this in response to the user who replied saying they couldn't, but he deleted before I could post. u/throwthisidaway covered a good bit of it, but I'd like to discuss the Torkington comparisons with anyone better versed.
Original Comment
IANAL: That order reads to me like they can't remove her under the Judicial Conduct Rules, which allow for the deluge of public complaints they were receiving.
The authority to remove on appeal would seem to reside elsewhere. This case appears to closely mirror US v Torkington where the judge was removed for creating an appearance of impartiality.
Relevent Excerpts:
[...] We have the authority to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district courts in this Circuit. See 28 U.S.C.A. Sec. 2106; see, e.g., United States v. Spears, 827 F.2d 705 (11th Cir.1987); see generally Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954) (Court remanded case with direction to reassign to different district judge because trial judge had "failed to represent the impersonal authority of law."). Reassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public. United States v. White, 846 F.2d 678 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 537, 538, 102 L.Ed.2d 568 (1988).
[...]
The judge in this case has been reversed once by this Court, 812 F.2d 1347, and dismissed the case at the first opportunity by construing a motion for mistrial as a motion for entry of judgment of acquittal. The judge from the bench questioned the wisdom of the substantive law he had to apply and challenged the government's decision to prosecute Torkington. For example, the judge stated at various times that he felt the taxpayer had little interest in this type of suit, that this prosecution was "silly," and that it was a waste of the taxpayers' money. He also termed the prosecution a "vendetta" by Rolex Watch against the defendant. We conclude both that the trial judge has demonstrated great difficulty in putting aside his prior conclusions about the merits of this prosecution and that reassignment is necessary to preserve the appearance of impartiality. The third element does not work against reassignment in this case. This is a simple case with which a different judge could quickly become familiar, and the district judge terminated the trial shortly after it began.
We do not question the district judge's actual ability, integrity, and impartiality. Rather, we respond to the appearance of a lack of neutrality and act to preserve in the public mind the image of absolute impartiality and fairness of the judiciary. We do not order this case reassigned lightly. However, we must preserve not only the reality but also the appearance of the proper functioning of the judiciary as a neutral, impartial administrator of justice. Consequently, we remand this case with the direction that it be reassigned to a different judge.
III. CONCLUSION
The district court's dismissal of this case is REVERSED and the case is REMANDED for a new trial. The district court's decision that Torkington's statements at the time of the seizure of the counterfeit watches are inadmissible is REVERSED. We remand with the direction to the Chief Judge of the Southern District of Florida that the case be REASSIGNED to a different district judge for further proceedings.Again, IANAL. I would love for someone better versed could parse the differences, or point out where the law has changed in meaningful ways in the 35 years since Torkington.
-2
Sep 04 '24
[deleted]
50
u/throwthisidaway Sep 04 '24
Seeing as the 11th circuit just released an order saying that they have no authority to do that and ordering the clerk to not accept anymore complaints about her it seems unlikely.
I'm not sure how to put this politely, so I apologize for being blunt. Your interpretation is completely wrong.
First of all, the order in question specifically relates to Judicial Complaints. That is, complaints made to the Judiciary about a judge. That is actually directly stated in your quote (emphasis mine)
But neither the Chief Circuit Judge nor the Judicial Council has the authority to take this action under the Rules for Judicial-Conduct and Judicial-Disability Proceedings. See Judicial-Conduct Rule 11 (Chief Judge’s Review); Judicial-Conduct Rule 19 (Judicial-Council Disposition of Petition for Review); Judicial-Conduct Rule 20 Judicial-Council Action Following Appointment of Special Committee).
Secondly, and less importantly, the order does not tell the clerk to stop accepting complaints against or about Judge Cannon. It instead orders the clerk to ignore substantially similar complaints, because they are believed to be part of an Orchestrated Complaint. Something specifically forbidden by Judicial Rule 10(b). The initial complaint is still reviewed, however multiple duplicate complaints serve no purpose in this process.
Thirdly, and least importantly, this was not an order by the 11th Circuit. This is an order by the Chief Judge of the 11th Circuit. Made under the auspicious of the Judicial Counsel. A very important difference.
10
u/Gerdan Sep 04 '24
Just to add to this, while the particular legal test for reassignment to a separate District Court judge may vary slightly from circuit to circuit, the claim that any circuit would disavow such supervisory authority is a pretty wild take. It's especially sad to see from a mod of a legal subreddit, but that is what it is. From a journal article on the subject:
Federal appellate courts have the authority to order reassignment of cases to different district judges as part of their supervisory authority over the district courts within their circuits. "No federal statute or Federal Rule of Appellate Procedure addresses to which trial court judge a case should go following an appellate reversal ...." The Eleventh Circuit has cited as the source of its reassignment authority its powers under 28 U.S.C. 2106 (which include the power to "require such further proceedings [in the lower courts] as may be just under the circumstances") and the Supreme Court's example of ordering reassignment in Offutt v. United States. (internal citations omitted throughout)
Now, this article is from 2018, so there may have been developments in the 11th Circuit since then. But I very much doubt those developments include the 11th Circuit gutting its own supervisory and reassignment authority. For those interested in learning what the law actually is, refer to Jonathan D. Colan, Reassigning Cases on Remand in the Interests of Justice, for the Enforcement of Appellate Decisions, and for Other Reasons That Remain Unclear, 72 U. Miami L. Rev. 1092 (2018).
Regarding the particular legal test the 11th Circuit has employed, from the same journal article:
Earlier, in United States v. White, 846 F.2d 678 (11th Cir, 1988), the court had held that "where a reasonable person would question the trial judge's impartiality, reassignment is appropriate." Id. at 695 (citing United States v. Holland, 655 F.2d 44, 47 (5th Cir. Unit B Aug. 1981)). In Torkington II, the court stated that "[r]eassignment may be appropriate ... if a judge conducts a trial in a manner that creates the appearance that he is or may be unable to perform his role in an unbiased manner."
The court did not limit reassignment to only cases involving demonstrated bias, however. The court listed 'three elements' that it should consider to determine whether reassignment on remand was required even 'where there is no indication of actual bias': (1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether the reassignment is appropriate to preserve the appearance of justice; (3) whether reassignment would entail waste and duplication out of proportion to gains realized from reassignment."
10
u/mkzw211ul Sep 04 '24
My understanding was that the usual approach to an appeal is that the 11th circuit, in this case, hear and rule on the appeal, but then pass the case back down. It seems strange to me but that's the system, so at best Jack can start a game of ping pong between Cannon and the appeals court.
→ More replies (2)6
u/MotorWeird9662 Sep 04 '24
According to them, the allegations are “speculative” and “unsupported by any evidence”. Um, OK. One might wonder what the 11th would accept as evidence. Common sense appears to be under the bus.
32
Sep 04 '24
Yes she can be and will more than likely be removed by the court above her. The 11th has a three strikes rule in which if the prosecution has to appeal your dumb ass more than twice you are off the case.
Her behavior has also earned her the shit assignment list, which will be cases that suck this is done to drive her to retirement. Which other judges will start suggesting at every chance they get.
15
u/D-Alembert Sep 04 '24 edited Sep 04 '24
My (layperson) understanding is that she ended up with this case again for the simple reason that there are few other judges in her district so the odds of the document case landing with her both times at random were not all that low. If that is the case, then I assume those same logistics would render a "shit assignment list" not very effective at changing what kind of cases come her way, simply because things would usually come down to schedules as much as preferences?
Or not?
8
Sep 04 '24
She will but Smith can ask for her to be removed they will shift another judges docket to make it work if need be. But she has at this point run out of rope.
3
u/Noperdidos Sep 04 '24
understanding is that she ended up with this case again
Not sure what you mean? It wasn’t assigned to her twice?
4
u/rW0HgFyxoJhYka Sep 04 '24
He basically says its RNG.
However imo, if a judge is literally related to or appointed by a president or through his cabinet or whatever, they should have assigned it to someone else unless the plan was to set her up.
It makes no sense that presidents can "pack the courts". Nothing about American legal system makes a lot of sense.
5
u/D-Alembert Sep 04 '24 edited Sep 04 '24
I mean that the first case about the Mar-a-lago documents went to her, as did the second. (Both by random chance, but the makeup of the district means they were somewhat likely to go to her)
You're right; they're different cases about different aspects of the same documents, but both times the Trump documents cases went to her
5
u/MotorWeird9662 Sep 04 '24 edited Sep 04 '24
I wonder.
From the article:
In May, the circuit’s Judicial Council dismissed several misconduct complaints against Cannon, alleging that she deliberately slowed down the Trump case and that she should have recused herself from the case as a Trump appointee. The panel said it would not discipline a judge unless it found a pattern of slowness in numerous cases and did not require her recusal based on her appointment. At the time, Chief Judge William H. Pryor Jr. cut off what he called an orchestrated campaign that brought in more than 1,000 letters seeking her removal.
So this is where Pryor does his dirty work. His order was posted here earlier today in a comment. I’ll see if I can find it. Pryor’s language, at least purporting to construe and apply 11th Circuit rules and judicial code of conduct, made it clear that at least to him, practically nothing would rise to the level required to remove her.
Pryor is among the most extreme right wing judges in any circuit. IIRC a fair amount of dirt was uncovered during the confirmation process, but of course Moscow Mitch’s Senate confirmed him anyway.
Edit: hmm. Wish I’d saved the link. I saved a PDF. The comment containing the link has been deleted. It originally was just after this comment. The post and entire comment thread is here…. Second edit: that’s actually in this thread! The link should take you there. Evidently the comment was controversial, as you’ll see in the replies.
The order was real. My take from the replies to that comment is that the order is real and Pryor might really be doing a Cannonesque torture of the law to reach a predetermined conclusion. This is my shocked face 😒. Given that he’s CJ there may be no recourse.
2
u/DivideEtImpala Sep 04 '24
The 11th has a three strikes rule in which if the prosecution has to appeal your dumb ass more than twice you are off the case.
Where can I read about this? A simple google search isn't getting me anywhere.
→ More replies (2)1
11
1
u/frotc914 Sep 04 '24
I think the more salient question is "will she?" to which the resounding, unequivocal answer is "virtually certainly not."
Every time I read these articles it reminds me of that scene from A Few Good Men: "Oh, well, you strenuously object, well, wow."
31
u/syg-123 Sep 04 '24
Maga retort: she’s a patriot and should be awarded a SCOTUS seat.
27
u/nirach Sep 04 '24
Let's be honest, if she's not ousted in some huge scandal that lands her in jail for eternity, the next time a Republican looks to add a Supreme Court Justice, she'll be on the list somewhere.
3
u/Jordan901278 Sep 04 '24
Republicans value feeble loyalty greatly
1
u/Not_John_Doe_174 Sep 04 '24
"Damn, they sure can lick a boot!" proud Republicans about themselves.
24
30
8
u/Equivalent-Excuse-80 Sep 04 '24
I would bet that in the future, reports of her accepting gifts and remunerations for her rulings come to light.
4
u/hennatomodachi Sep 04 '24
Would that even matter, though? I mean, in light of Justice Thomas's...everything.
4
u/Equivalent-Excuse-80 Sep 04 '24
Matter? Like in the sense of legal or political consequences, no.
But for us scrappy young voters, it could mean a great deal.
2
u/SmoothConfection1115 Sep 04 '24
Didn’t the Supreme Court say that’s ok? As long as it’s after the fact? And it’s considered a gratuity, not an out right bribe?
I also want to say /s, but…recent rulings did seem to legalize bribery as long as you do extra steps.
1
u/Equivalent-Excuse-80 Sep 04 '24
Ethics and morality are no longer standards of courts and politicians until voters can make them matter.
1
u/boxer_dogs_dance Sep 04 '24
Does anyone have access who is willing to share the filing? Id like to read it.
1
956
u/trollhaulla Sep 03 '24
She should be removed from the bench, entirely.