On Friday, Democrats started alleging a new recusal scandal after Special Counsel Jack Smith filed a motion in the federal documents case against Donald Trump in Florida. The motion, directed at the presiding judge, Trump-appointee Aileen Cannon, requested that Trump be prohibited from making “public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case.”
Soon after the motion was filed, leftist lawyers reacted as if this was a masterstroke by Smith designed to eventually remove Cannon from the case. Roger Parloff, a senior editor at Lawfare, suggested on Friday evening that Smith’s motion was crafted to expose Judge Cannon’s bias if she fails to act.
Andrew Weissmann expanded on Parloff’s theory, posting late Friday that Smith’s move was smart because Cannon was unlikely to grant the gag order, thus revealing her bias and allowing Smith to appeal to the 11th Circuit.
Law professor Laurence Tribe then amplified Weissmann’s idea, reposting it and commenting that the likely denial of the motion by Judge Cannon should lead the 11th Circuit Court of Appeals to take her off the case against Trump.
Former U.S. Attorney and NBC/MSNBC legal analyst Barb McQuade echoed this sentiment, posting that Smith’s request to prevent Trump from making dangerous accusations against the FBI could tee up Cannon’s recusal if she refuses it.
The notion that the 11th Circuit Court of Appeals would reassign the case if Judge Cannon denies the special counsel’s motion is unrealistic. First, appellate courts don’t “recuse” judges; they reassign cases, and reassignment is extremely rare. According to a 2018 article, over a 50-plus-year period, the 11th Circuit had only reassigned 28 cases compared to 324 in the Seventh Circuit.
In the 11th Circuit, reassignment typically occurs in extreme cases where the trial judge exhibited clear bias or challenged the substance of the law. For example, reassignment was ordered when a judge questioned the prosecution’s wisdom and called it a waste of taxpayer money.
Judge Cannon’s perceived bias stems from her rulings against Smith’s office. In the context of Smith’s recent motion, which seeks a gag order on a leading presidential candidate, a denial would not indicate Cannon’s bias.
It’s also improbable that the 11th Circuit would overturn Cannon’s decision if she denies Smith’s motion. The motion seeks a broad limit on Trump’s speech, requesting he refrain from making “public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents” involved in the case.
Smith’s examples of dangerous statements include Trump claiming the FBI “WAS AUTHORIZED TO SHOOT ME” and was “locked & loaded ready to take me out & put my family in danger.” These don’t constitute a “significant, imminent, and foreseeable danger,” making it unlikely that Judge Cannon will grant Smith’s motion or that the 11th Circuit would view a denial as erroneous.
Trump’s legal team filed a motion to strike Smith’s request and seek sanctions, arguing that the special counsel failed to follow local rules requiring attorneys to confer before filing motions.
Trump’s lawyers noted that Smith’s team informed them at 5:30 p.m. on Friday about the filing. Despite objections and a request to discuss the motion on Monday, the special counsel’s office proceeded without a valid reason to rush.
While Judge Cannon might not question prosecutors about their motives, she may chastise the special counsel’s office for flouting the local rules. She is likely to require conferral before considering the motion.
Regardless of how Judge Cannon rules on the motion, it’s improbable that the 11th Circuit will reassign the case. The theory of reassignment seems more like an attempt to rekindle calls for Cannon’s recusal.
