Two amicus briefs recently filed to the 11th Circuit Court of Appeals argue that Judge Aileen Cannon should be removed from Donald Trump's documents case, which she dismissed in July.
While special counsel Jack Smith appealed her ruling to throw out the case over claims he had not been properly appointed, one of the things he didn't do in the appeal was ask that she be removed from the case if it is re-established. The case involves claims that Trump took classified documents from the White House and refused to return them when asked.
Instead, two others made that argument in the filings: Citizens for Responsibility and Ethics in Washington (CREW) and retired constitutional law professor for Harvard University Laurence Tribe, along with others.
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Legal analysts Allison Gill and former FBI deputy director Andy McCabe took a deeper dive into the briefs in the Sunday "Jack" podcast.
CREW's ruling quoted the 11th Circuit's own past findings when it discussed the seriousness of Cannon's actions.
"Some of Judge Cannon’s rulings have been so unprecedented that affirming them would, in this Court’s words, 'violate bedrock separation-of-powers limitations' and require 'a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations,'" the brief stated.
While they use many citations to argue that the case be reestablished and Cannon be removed, Gill and McCabe focused on one Florida case involving fake Rolex watches.
The case, United States v. Torkington, involved a man who was arrested for selling fake watches for $27. The judge in the lower court ruling, on the same level that Cannon is now, ruled that the arrest was absurd because no reasonable person could believe it was a real Rolex at just $27. He dismissed the case.
The 11th Circuit Court of Appeals not only overruled his dismissal, but removed him from the case entirely.
Torkington used three factors for reassignment that CREW applied in its brief: First, "Judge Cannon would have difficulty putting her previous views and findings aside on remand." Second, "reassignment is appropriate to preserve the appearance of justice." And third, "The gains realized from reassignment would outweigh any waste or duplication."
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"A reasonable observer could conclude that she has acted in accordance with a conviction that prosecuting a former president for retaining official documents — over 100 of which are marked classified — is 'an intolerable affront to his dignity,'" the brief says.
Gill translated from legalese: if a "reasonable member of the public" agrees she has the "appearance of impropriety," Cannon can be removed. This isn't evidence of actual partiality, but only the appearance of it.
McCabe said that as much as Trump foes want to believe "Cannon is in the tank for Trump," however, there's no concrete proof of that. But McCabe said that what Torkington does is remove the need for it entirely.
Gill also pointed out that in the Torkington case, the judge was only reversed once by the higher court. If the 11th Circuit comes back against Cannon this time, it will mean she's been reversed three times over the classified documents case.
