'Two strikes': Experts say Aileen Cannon is getting closer to being recused

U.S. District Judge Aileen Cannon, a Donald Trump appointee whose decisions have raised concerns about bias toward the former president, might have finally gone too far, wrote legal experts Norm Eisen and Joshua Kolb for Slate on Tuesday.

What's more, special counsel Jack Smith might be gearing up to ask the appellate court to step in and get rid of her.

This new analysis comes shortly after Cannon ordered Smith to turn over information to the defense team, despite Smith laying out compelling evidence that it could be used to put people in danger.

"Why do we think Smith might be headed to the court of appeals?" wrote Eisen and Kolb. "In part because he has already sought reconsideration for the latest of Cannon’s unlawful orders. This is a step that is warranted only in rare circumstances, including when a judge has made a 'clear error' that led to 'manifest injustice.' In this instance, at Trump’s behest, Cannon has decided to unseal the identities of two dozen potential witnesses, along with sensitive information they provided to the government."

In this case, they continued, "The 'clear error' Smith identifies is striking: He alleges that Cannon applied the wrong legal standard in making this decision, requiring him to make a far more stringent showing than should be needed to protect these names. In his motion for reconsideration, Smith shows that the case law — including the very cases Cannon herself cited in her order — does not establish the unreasonable hurdles she wants him to clear." Further, Smith lays out in his filings a “well-documented pattern in which judges, agents, prosecutors, and witnesses involved in cases involving Trump have been subject to threats, harassment, and intimidation.”

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Cannon will have to rule again on the matter in response to Smith's latest admonitions — either reversing her position and acknowledging a serious mistake, or upholding it and giving Smith what he needs to go to the 11th Circuit Court of Appeals to ask for those orders to be reversed, according to the analysis. He could even, at this point, request Cannon's dismissal from the case, the legal experts wrote.

This judge "comes into these latest disputes with two strikes already against her. She was overturned twice by the 11th Circuit during the federal government’s investigation of Trump’s retention of classified documents before he was indicted," they noted.

On the first occasion Cannon went out of her way to give nonexistent extra rights to Trump, the experts write.

"So far, the government has acted cautiously," Eisen and Kolb write. "But at a certain point, the government cannot acquiesce to unfair and dangerous rulings — and it may need to take bold action to protect the integrity of its prosecution."