Lawyers, law professors, ex-DOJ officials tell 11th Circuit that Trump's dismissed yet 'seemingly straightforward' Mar-a-Lago case must be taken away from Judge Cannon

Left: Special Counsel Jack Smith (AP Photo/J. Scott Applewhite, File). Center: Aileen M. Cannon speaks remotely during a Senate Judiciary Committee hearing (U.S. Senate). Right: Donald Trump speaks with supporters at the Westside Conservative Breakfast, June 1, 2023, in Des Moines, Iowa (AP Photo/Charlie Neibergall, File).

In somewhat of a replay of what took place in the lower courts, two groups of amici curiae (“friends of the court”) composed of lawyers, law professors, former DOJ officials, and at least one retired judge sought permission to file briefs, but this time they argue Judge Aileen Cannon’s wrongful dismissal of Donald Trump’s Mar-a-Lago prosecution should be reversed and the case reassigned to another jurist. The U.S. Court of Appeals for the 11th Circuit on Wednesday allowed the briefs to be filed.

Citizens for Responsibility and Ethics (CREW), retired federal judge Nancy Gertner, NYU law professor emeritus Stephen Gillers, and Hofstra University law professor James Sample said Cannon could very well end up being reversed by the 11th Circuit for “the third time in under three years” in what is “a seemingly straightforward case about a former president’s unauthorized possession of government documents.”

As the Mar-a-Lago case trudged along, with prosecutors complaining about the judge’s view on the naming of witnesses and her Presidential Records Act-focused jury instructions , lawyers highly critical of Cannon’s moves wondered if Smith would seek the “extraordinary remedy” of a writ of mandamus at the conservative-led 11th Circuit to swiftly reverse her or otherwise look to disqualify the Trump-appointed judge from the case over a “ pattern of apparent bias .”

Cannon’s own colleagues, including the chief judge in the Southern District of Florida, reportedly tried and failed to convince her over the phone to step aside from the Trump case after the 11th Circuit unanimously smacked down her special master project and her blocking of the feds from reviewing classified documents seized from Mar-a-Lago after the August 2022 search. From there, deadlines were repeatedly pushed back , and a trial date was left up in the air .

Then, in July, after “ careful study ,” Cannon threw out the case by finding U.S. Attorney General Merrick Garland unlawfully appointed Smith as special counsel. She repeatedly cited favorably Justice Clarence Thomas’ concurrence in Trump’s Supreme Court immunity case, a concurrence that no other justice joined .

More Law&Crime coverage: Jack Smith clearly didn’t enjoy Mar-a-Lago judge calling him a ‘private citizen,’ brings up treason prosecution of Jefferson Davis

Smith never took the disqualification approach, but the amici are now asking the 11th Circuit to consider it.

“Here, we focus on three controversies that, considered together, afford the Court more-than-adequate grounds to reassign the case upon remand: (1) Judge Cannon’s unprecedented assertion of ‘equitable jurisdiction’ to block the Government from using or even viewing documents seized at Mar-a-Lago pursuant to a lawful search warrant,” the first group of amici said. “(2) Judge Cannon’s inexplicable call for jury instructions on a spurious legal defense that would have gutted the Government’s case had it ever gone to trial; and (3) Judge Cannon’s failure over the course of one year to move the case forward in any significant way—until a one-Justice concurrence in the Supreme Court’s presidential-immunity opinion expressed approval of the novel constitutional theory that allowed her to end the case.”

The second group of amici included Donald Ayer, former U.S. deputy attorney general under then President George H.W. Bush, conservative lawyer and Trump critic George Conway, former Acting U.S. Attorney General Stuart Gerson , Watergate era prosecutor Philip Lacovara, former FEC Chairman Trevor Potter, former New Jersey Gov. Christine Todd Whitman , and Harvard law professor emeritus and Trump critic Laurence Tribe .

In similar fashion, they urged the 11th Circuit to act on its own authority to take the case away from Cannon if the dismissal is overturned due to her “grave errors.”

“This pattern of unsupportable decisions, along with the district court’s inexplicable handling of procedural matters in this case, makes clear that Judge Cannon ‘has engaged in conduct that gives rise to the appearance of . . . a lack of impartiality in the mind of a reasonable member of the public,” the brief said. “Amici therefore urge this Court, in addition to reversing the decision below, to exercise its supervisory authority under 28 U.S.C. § 2106 to reassign the matter to another district judge on remand.”

The post Lawyers, law professors, ex-DOJ officials tell 11th Circuit that Trump’s dismissed yet ‘seemingly straightforward’ Mar-a-Lago case must be taken away from Judge Cannon first appeared on Law & Crime .