Judge Aileen Cannon Is A Wildcard In Trump Documents Trial — And It’s Causing Controversy

Aileen Cannon, the U.S. district judge appointed to oversee former President .

“For a case as important as this one, it’s critical to have a judge who is experienced, smart, and impartial,” Michael Bromwich, a former Department of Justice inspector general and lawyer for the independent counsel in the Iran-Contra scandal of the late 1980s, tweeted. “Judge Cannon fails on each of these dimensions. If she has any self-awareness, she should recuse herself.”

This isn’t to say that she will be biased in her second go-around hearing arguments on Trump’s alleged illegal retention of classified documents.

“There is a need for caution in terms of people’s hyperbole regarding the likelihood that Judge Cannon will preside over this prosecution,” Bradley Moss, a lawyer who specializes in national security cases, said via email. “The earlier procedural matters before her were different in terms of nature (they were civil) and substance (it was only about a Special Master review).”

Still, the presiding judge in a trial like this one does have significant leeway to delay or derail a prosecution if they so desire.

There are questions of what evidence will be allowed to be admitted into court. Trump’s lawyers have already sought to strike testimony and evidence from Trump’ ex-lawyer Evan Corcoran as a violation of attorney-client privilege. They are also likely to challenge everything from the legality of the search warrant to the ability of Trump to hold the government documents in question under the Presidential Records Act.

In each instance, Cannon will be able to rule on what evidence can be admitted and whose testimony can be heard. If she sides with Trump, the prosecution can appeal, but that will create further delays as campaigning for the 2024 Republican presidential nomination is already underway.

Cannon can also influence the case during the jury selection process. Since trial judges have a lot of leeway to call out potential juror bias, Cannon could pack the jury with people who are sympathetic to Trump. With the jury needing to reach a unanimous verdict, even one biased juror could cause a mistrial.

Any and all of these decisions could be appealed by the prosecution. And evidence of favoritism toward Trump could lead to a later request for Cannon’s recusal.

“If she was acting out of the traditional bounds of what are very commonplace procedures, the 11th Circuit and the prosecutors would note it very quickly,” said Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee.

Still, this all threatens to drag out the proceedings.

“While the odds are not in Mr. Trump’s favor on any of those issues, judges can be wild cards and there is always the possibility that the government will be forced to seek immediate appellate review of any adverse pre-trial rulings,” Moss said in an email. “If nothing more, that review could further delay the start of a trial and risk pushing it back until after the 2024 election.”

That works to Trump’s benefit. He wants to delay a verdict as long as possible because his indictment now stalls all other ongoing investigations. More important, he hopes that he can win the 2024 election and, once in the White House again, he would be protected from prosecution and could even attempt to pardon himself.