There have been renewed calls for Judge Aileen Cannon to be removed from overseeing Donald Trump's classified documents case following her latest ruling.
Cannon on Monday asked lawyers for Trump and Special Counsel Jack Smith's team to submit "competing scenarios" laying out possible jury instructions prior to deliberations in the trial taking place on the interpretation of a law which forms a key part of the former president's defense.
One of the hypothetical scenarios Cannon was exploring relates to the Presidential Records Act, and whether a president "has sole authority" to categorize records as "personal or presidential" during their time in office.
This argument surrounding the interpretation of the Presidential Records Act is the basis of one of the motions to dismiss brought forward by Trump to throw out the case entirely.
Cannon, who was nominated to the bench by Trump and has faced frequent criticism for her decisions during the classified-documents proceedings, previously expressed skepticism during a motion-to-dismiss hearing concerning whether the act allows presidents to list any document as their personal property. Trump's lawyers claimed it was a valid reason to dismiss the entire case before it reached a jury.
A number of legal experts have since criticized Cannon for giving a ruling calling for potential jury instructions that are linked to a defense that the former president is using to try and dismiss the case, rather than making a decision on the Presidential Records Act defense herself.
Others have suggested that this is another example where Cannon appears to be making decisions in the classified documents case that favor the former president, and that she should be removed from overseeing the trial.
George Conway, a lawyer and frequent critic of Trump, posted on X, formerly Twitter, while discussing the jury instruction motion from Cannon: "Okay, I've seen enough. Not only should Aileen Cannon not be sitting on this case, but she should not be sitting on the federal bench at all. This is utterly nuts.
"Apart from whether or not Judge Cannon is trying to help Trump here, this order makes clear beyond peradventure that she has no idea what she's doing even simply as a lawyer," Conway added.
Harvard Law professor emeritus Laurence Tribe wrote: "Judge Cannon clearly cannot be permitted to preside over this case.
"Whether she should be removed from the federal judiciary altogether is another matter. She probably should. Her ruling makes utter nonsense of the Presidential Records Act."
Former FBI General Counsel Andrew Weissmann suggested that Smith could go to the Court of Appeals for the 11th Circuit to overturn the jury instructions request from Cannon. The court has already overturned two decisions from Cannon in the classified documents case.
"This is the kind of legal inanity that could lead Jack Smith to seek to mandamus Judge Cannon—ie to get the 11th Circuit appeals court to hear this and reverse her for the third time—which could also be the proverbial three strikes and you're out," Weissmann wrote.
Trump's legal team has been contacted for comment. A spokesperson for Smith's office declined to comment when contacted by Newsweek.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, previously said she would be "very surprised" if Smith moved to recuse Cannon via the 11th Court of Appeals as he does not have a strong enough case to do so.
"Although some may perceive her decisions as favoring Donald Trump, judges often accommodate defendants out of an abundance of caution to ensure due process and a fair trial, and to avoid reversal on appeal," McQuade told Newsweek.
"While reasonable minds can disagree about some of her decisions, nothing she has done could be framed as an abuse of her discretion. I do not think a motion to recuse her would be successful, and then Smith would risk being even worse off than he is now in the eyes of Judge Cannon."
The Presidential Records Act, implemented in the wake of the Richard Nixon Watergate scandal, requires that every presidential document must be sent to the National Archives and Records Administration when the president leaves office as the materials in question belong to the government, not the commander-in-chief personally.
Trump has long argued that the Presidential Records Act allowed him to designate the sensitive materials he took after leaving the White House in January 2021 as his own personal property, and therefore he cannot be charged with their "unauthorized" possession.
Federal prosecutors previously suggested that this defense shows Trump, as a former president, believes that the nation's "laws and principles of accountability that govern every other citizen do not apply to him."
Trump has pleaded not guilty to 40 charges over allegations he illegally retained classified documents when he left the White House, and then obstructed federal attempts to retrieve them.
The trial is scheduled for May 20, but Cannon is expected to push back the start of proceedings.
Uncommon Knowledge
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About the writer
Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, domestic policy ... Read more
