Even as prosecutors publicly revealed a deep and detailed array of evidence against former President Donald J. Trump in the document review on Friday, they suffered a potential setback with the surprise assignment of the case to Judge Aileen M. Cannon.
Judge Cannon, 42, a Trump appointee in Florida, shocked legal experts across ideological lines last year by intervening in the investigation and issuing rulings favorable to Trump, but was rebuked by a conservative appeals court.
The clerk of the Southern District Court of Florida has said new cases there are arbitrarily delegated to the judges, even if they are related to previous cases. It was not immediately clear whether Mr. Trump had been lucky, or whether an exception had been made. Either way, legal experts said Judge Cannon’s return was significant.
The unsealed indictment offered “a strong factual presentation,” said Paul Rosenzweig, a former Bush administration official and federal prosecutor who worked on the independent counsel’s investigation into President Bill Clinton. “If this was a normal person and a normal thing, you would talk to your client about pleading guilty. So I think the Cannon draw is actually a serious blow to the prosecution.
With Mr. Trump now indicted — with 37 criminal cases, including 31 violations of the Espionage Act, several charges of obstruction and making a false statement — Judge Cannon has ample opportunity to make rulings that affect the pace and outcome of the case .
First, the substantial evidence detailed in the indictment comes from Mr. Trump’s own lawyers, increasing the likelihood of an argument over whether it should be suppressed as a matter of attorney-client privilege.
That evidence includes a taped voice memo and witness statements showing that Trump kept his legal team in the dark about an aide, Walt Nauta, moving boxes from a storage unit. One attorney, M. Evan Corcoran, then searched the room for classified materials in response to a subpoena and another, Christina Bobb, signed a statement falsely saying that all remaining classified documents were turned over.
Behind closed doors, Mr. Trump and his team had fought a pitched battle to prevent the special counsel from getting that information. But Chief Justice of the Federal District Court of the District of Columbia, Beryl A. Howell, ruled that the so-called crime fraud exception applied, allowing a grand jury in the district to review it.
However, those decisions were only about what could be shown to a grand jury. Trump’s defense team can file new motions to suppress that evidence and prevent the information from reaching the trial jury, and Judge Cannon will not be bound by Judge Howell’s rulings.
Decisions Judge Cannon makes in setting the pretrial and trial calendar may also be critical. Mr Trump has long pursued a strategy of trying to run the clock on legal matters, and if he can continue the process for documents after the 2024 election, there is a chance that a Republican – whether that be Mr Trump himself , or any other candidate – becomes president and ends the matter.
Because the case involves classified evidence — 31 of the charges against Mr. Trump allege violations of the Espionage Act through the unauthorized retention of 31 classified and top secret documents — it is likely that a judge would spend a great deal of time handling pre-trial hearings. the process on whether to allow substitutions that do not contain classified information.
Samuel Buell, a law professor at Duke University and former chief prosecutor on the Enron task force, said there could be “a lot of misdirections and delays and things that could play well in the MAGA media space, but I don’t.” Legally I don’t see how even a mischief-prone judge can prevent this from going to trial.’
Still, “out-of-left-field rulings could come in here,” he said, adding: “If you have classified documents, there are plenty of opportunities to delay this, and if they have a judge willing to If you delay this, it will be very difficult to predict when this will go to court.”
Certainly, there’s no guarantee that Judge Cannon will resume the pattern she exhibited last fall. It remains to be seen if she will respond to the reputational damage it has done her by using a second spin in the spotlight to rule in a more straightforward manner.
Ryan Goodman, a law professor at New York University, said the 31 documents central to the espionage law charges were likely carefully selected by Mr Smith, and after negotiations with national security officials about whether they meet the defense team could be shown and possibly jurors if needed.
One issue that may arise is whether intelligence agencies would agree to let Mr. Smith use certain documents in the expectation that he will persuade a judge to prevent them from being shown in open court. If Mr. Trump’s legal team argues that certain documents should be used openly for due process, rulings in his favor could lead the administration to consider instead dropping all charges on which those files are based.
Judge Cannon was born in Cali, Colombia, and grew up in Miami. Her mother fled Cuba as a young girl after the 1959 communist revolution, and her father’s family is from Indiana. She graduated from Duke University and the University of Michigan Law School, worked for a conservative federal judge, and worked for both a law firm and a federal prosecutor.
She joined the conservative Federalist Society in 2005 as a law student and was just 39 when Mr. Trump nominated her for federal judicial office in 2020. She worked out of a small federal courthouse in Fort Pierce, Florida, north of Palm Beach County. drew little attention until she settled the special master lawsuit over the search of Mar-a-Lago, Mr. Trump’s club and residence in Palm Beach.
Last year, Judge Cannon oversaw a civil lawsuit brought by Mr. Trump after the FBI searched Mar-a-Lago and seized numerous government documents and other materials stored with them. They included 102 files marked classified that Mr. Trump failed to turn over after receiving a subpoena months earlier.
Judge Cannon temporarily blocked investigators from accessing the material, ordered a special master to review the files for material that should be permanently out of bounds, entertained the unprecedented idea that some White House files could be withheld from detectives the Justice Department under executive privilege, and drafted a calendar that threatened to freeze the investigation for at least four months.
Her opinion suggested that a former president should be given more protection than a common suspect. She also helped Mr. Trump by overriding the special master she had appointed, Judge Raymond Dearie, when he ordered Mr. Trump to confirm the accuracy of the FBI’s inventory of properties it had seized from his Florida estate.
But the Justice Department appealed, and a panel of the Court of Appeals for the 11th Circuit, including two other Trump appointees, shut down its interference. In a damning ruling, the panel stated that it never had the legitimate authority to order the review or prohibit investigators from using the files, and that there was no reason to treat Mr. Trump any differently than any other search warrant target. The Supreme Court left that decision without comment, and Judge Cannon dismissed the lawsuit.
Last fall, this reporter sought clarification on whether Judge Cannon’s involvement in the lawsuit meant she would automatically face an indictment if filed in Florida’s Southern District. In emails, the clerk of the court there, Angela Noble, wrote: “We do not assign related cases to the same judge. A related case is still randomly assigned.
Still, the odds of an indictment being arbitrarily assigned to Judge Cannon were slim. There are 15 active judges of the South Florida Federal District Court, along with 11 of higher status who are still assigned to hear cases, but with a reduced workload. Ms Noble did not immediately respond to an email seeking clarification of what had happened.
Mr. Trump and his team have already indicated they intend to raise allegations of misconduct by prosecutors and investigators, as they did this month at a meeting at the Justice Department to avoid an indictment.
Criminal defendants routinely claim that prosecutors threatened witnesses and committed other misconduct, and they rarely succeed. But if Judge Cannon treats those claims more deferentially than trial judges normally do, Mr. Smith and his team could effectively stand trial before Mr. Trump.
“Litigation in the pretrial investigation against prosecutors’ conduct is a good way to whitewash things and fits with Trump’s message that will get out of hand, politically motivated prosecutors,” said Mr. Buell. “So we’ll see plenty of it.”