Aileen Cannon's Behavior Is 'Far Outside the Realm'—Attorney

Judge Aileen Cannon has behaved in ways "far outside the realm" while overseeing Donald Trump's classified documents criminal trial, former federal prosecutor Joyce Vance said Sunday, adding that the Department of Justice (DOJ) should move to recuse her from the trial.

Trump, the presumed 2024 GOP presidential nominee, is facing numerous charges in the case, stemming from allegations that he unlawfully retained classified documents at his Mar-a-Lago residence in Florida after leaving the White House. Some of these documents contained sensitive national security information, and by retaining them, prosecutors have argued that he violated the Espionage Act. Trump has claimed innocence in the case and pleaded not guilty to the charges.

Cannon was appointed to the bench by Trump during the final weeks of his presidency in 2020, and was chosen last year to oversee the documents case. Since then, she has routinely been criticized by observers and legal experts for making decisions in the proceedings that defy precedent and benefit Trump. In a recent example, she has recently denied two motions from the former president's legal team calling for his Espionage Act charges to be dismissed, but in a way that would allow them to be brought forward again later on in the trial when DOJ special counsel Jack Smith would be unable to launch an appeal if she granted the motions.

All of these issues have led to persistent calls for recusal, with numerous legal experts accusing Cannon of deliberately acting in Trump's favor. On Sunday, Vance, a former U.S. attorney for the Northern District of Alabama during the Obama administration, touched on the issue during an appearance on MSNBC where she suggested that a motion to recuse should be brought against Cannon.

"The best strategy is a motion to recuse," Vance, a legal analyst for the network, said. "This judge is behaving in a way that is so far outside the realm that it has left them scratching their heads and looking for a strategy. I think at this point the DOJ ought to go ahead and file a motion to recuse the judge. She's obligated to respond to that in writing if she denies it and then Jack Smith will be able to take it to the 11th Circuit."

She also noted that such a motion would be difficult on the DOJ's end, but that it would be worth it to avoid the risks Cannon poses to the case.

"A recusal is difficult for prosecutors," Vance said. "It is not something that we'll do frequently and requires the approval of the solicitor general. But this is a judge who has made repeated rulings that the 11th Circuit hasn't just said they were wrong, not just said we're wrong, they said they were just in a different universe. And I think that this is the right sort of case and this is the moment where Jack Smith will need to do that. He cannot go to trial in front of this judge, it is far too risky."

When reached for comment by Newsweek, the Southern District of Florida declined, stating that judges do not comment on pending cases.

Dave Aronberg, the state attorney in Florida's Palm Beach County and legal expert, told Newsweek that he concurred with Vance's assessment, including the difficulty of a recusal motion.

"I agree with Joyce Vance that Jack Smith should and, one day, will seek a recusal of Judge Cannon, but I think the 11th Circuit is less likely to grant such a motion at present," Aronberg said. "Since this case has no chance of going to trial before the election, Smith can wait for more rulings by Judge Cannon that are out of bounds, and then appeal her and seek her removal. Smith only has one shot at this drastic remedy, and I'm not convinced that he has the paper trail to convince the 11th Circuit to go along -- yet."

He added: "For example, it is too early to appeal Judge Cannon's controversial jury instructions, even though they demonstrate an erroneous interpretation of the Presidential Records Act. Since Judge Cannon did not enter a final order on jury instructions, Smith is in a bit of legal purgatory. I agree with Joyce Vance that Smith should force her hand so he can appeal, but I would do it by first filing additional pre-trial motions that will be denied by the judge, and then take the appeal from there."

Meanwhile in a Friday post to his official YouTube channel, Glenn Kirschner, a former assistant U.S. attorney and frequent critic of the former president, said that Cannon's decision to deny the two motions from Trump's legal team is laying the groundwork for something that will be "even better" for the former president.

"She's orchestrating something even better for Donald Trump," he said. "If she had granted this motion and dismissed those charges, guess what? Special counsel Jack Smith would have been able to appeal. But what she said is, 'I'm not going to dismiss them...now, but I might dismiss them later, when we're in trial, after a jury has been sworn, after jeopardy has attached.' Why? Because then, Jack Smith can't appeal the dismissal and Donald Trump will never be held accountable for those crimes."

Update 4/8/2024, 9:30 a.m. ET: This article was updated with responses from the Southern District of Florida and Aronberg.