James' World 2

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Federal Judge Aileen Cannon has been a thorn in special counsel Jack Smith’s side for almost two years. Cannon, who was appointed to the bench by Donald Trump in 2020, first drew widespread attention in 2022, when she oversaw a civil lawsuit Trump filed related to the classified-documents case against him. Cannon’s decision to allow Trump a “special master” in the case stunned legal observers, who saw it as a legally questionable gift to the former president. That earned her a strong rebuke from a conservative-leaning panel of the 11th Circuit Court of Appeals, which overturned the ruling.

Since last year, Cannon has presided over Trump’s criminal trial in the documents case and has continued to issue a series of puzzling decisions, almost all of which have benefited Trump, while maintaining a lethargic pace that is also advantageous for the former president — who has made no secret of his Cannon fandom. Recently, Cannon and Smith clashed over a confounding set of instructions she handed down involving Trump’s attempt to have his case dismissed over the Presidential Records Act.

What explains Cannon’s judicial behavior, and what, if anything, can Jack Smith do about it? For perspective on those questions, I spoke with University of Texas law professor Lee Kovarsky, who has frequently opined on the documents case.

Last week, Judge Cannon dismissed Trump’s attempt to have his case thrown out with the claim that taking and keeping classified documents is legal under the Presidential Records Act. But even in that ruling, observers thought she may have undermined Jack Smith. Can you explain how?
She dismissed Trump’s motion to dismiss, meaning she said that she wasn’t going to dismiss the whole case because Trump had conclusively proven that the Presidential Records Act foreclosed prosecution. But by deferring decision on whether the Presidential Records Act is a viable defense, she avoids deciding it now, when her mistake could be corrected, and defers the decision for later, when it can’t.

Meaning it couldn’t be appealed.
It couldn’t be appealed. You’ve heard the phrase “double jeopardy.”

Yeah.
The moment when jeopardy attaches at a trial is a really significant thing — it’s when the jury is impaneled and sworn in. And basically, if she gives the instruction to the jury and the jury acquits based on that flawed instruction, Trump can’t be retried after the acquittal because of double jeopardy. Alternately, she doesn’t even have to send it to the jury. She could direct a verdict in Trump’s favor before she sends anything to the jury on that basis. And that also would not be reviewable because of double jeopardy. The fact that she’s left the issue open to be the basis of an instruction or a directed verdict later is what’s so canny about it. Not canny, but deceptive.

Because she may be setting up a land mine?
Yeah. Whereas if she had just decided it now, even if she had decided it wrongly, then Smith could have taken it up to the 11th Circuit for correction before jeopardy ever attached, so it wouldn’t affect the outcome of the trial. But she’s deferred.

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One of the few publicly available photos of Judge Cannon. Photo-Illustration: Intelligencer; Photo: Shutterstock

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