In Routh Case, Government Backs Cannon—But Barely

From the moment U.S. District Judge Aileen Cannon was assigned to preside over United States v. Trump, the classified documents indictment unveiled in the Southern District of Florida on June 8, many observers wondered if Special Counsel Jack Smith would move to have her recuse herself.

Cannon’s notorious intervention after the search of Trump’s Mar-a-Lago home in September 2022—granting Trump’s petition to bar the FBI from accessing the fruits of the lawful search until a special master she appointed could sift through the evidence first—had been caustically and unanimously reversed by the Eleventh Circuit. Chief Judge William Pryor Jr. had written that affirming what she’d done would “violate bedrock separation-of-powers limitations” and require “radical reordering of our caselaw limiting federal courts’ involvement in criminal investigations.”

The notion of having Judge Cannon, a Trump appointee, recuse herself reportedly even crossed the minds of two colleagues on the Southern District of Florida bench. Chief Judge Cecilia Altonaga and an unidentified second judge both privately urged Cannon to decline the case, the New York Times reported in June 2024, though their recommendation might also have been motivated by her “scant trial experience.” Cannon “wanted to keep the case and refused the judges’ entreaties,” according to the Times.

Observers’ discomfort with Cannon only intensified over the ensuing months, due to what many attorneys saw as highly unusual orders and a pattern of delay—some specifics of which are outlined below. Finally, in July, Cannon dismissed the case altogether—on the morning of the kick-off of the Republican National Convention—finding, in defiance of 50 years of practice, out-of-circuit precedents, and language in a 1974 U.S. Supreme Court case that she deemed to be nonbinding dictum, that Attorney General Merrick Garland had lacked statutory authority to appoint Special Counsel Smith.

Still, when Smith filed his appeal, he sought only reversal of her dismissal and still did not ask for reassignment to a different judge. Two friend-of-the-court briefs did seek reassignment, which put the issue before that court—though without the government’s endorsement.

Finally, last week, the government could dodge the question of Judge Cannon’s partiality vis-à-vis Trump no longer. The litigant who forced its hand was an unexpected one—and no “friend-of-the-court” by any stretch. It was Ryan Routh, Trump’s accused would-be, golf-course assassin, who is being prosecuted before Cannon by a team of assistant U.S. attorneys and a lawyer from the Justice Department’s National Security Division.

Routh’s 10-page motion, filed Oct. 17, argued that “given the heightened stakes and the public scrutiny” that the case was receiving, “there should not be any doubts about even the appearance of impartiality by the presiding judge” (emphasis in original).

He relied on 28 U.S.C. § 455(a), the most amorphous subsection of the federal law governing judicial disqualifications and recusals. It says that “[a]ny judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Despite the provision’s broad language, courts have construed the term “reasonably” to require far more than mere malevolent suspicions. As one federal appellate court put it, “The standard requires that [the court] take the perspective of a fully informed third-party observer who understands all the relevant facts and has examined the record and the law.”

Routh argued that his case presented a confluence of troubling factors: Judge Cannon’s “lifetime appointment” to the bench by the alleged target of Routh’s assassination attempt; Cannon’s controversial rulings in Trump’s favor in celebrated civil and criminal cases, including her dismissal of his Florida criminal prosecution in July; Trump’s lavish and repeated public praise for Cannon as a result of her pro-Trump rulings; public suspicion that her coincidental appointment to all three momentous Trump-related cases was “non-random”; and the possibility that, if Trump became president again, he might reward Cannon by elevating her to a higher court, “including the U.S. Supreme Court.”

Backed into a corner, the Justice Department finally took a stance on Cannon’s partiality on Oct. 21—at least in the context of the Routh prosecution. In a perfunctory, one-and-a-half-page filing, the government opposed Routh’s motion, stating that it did “not present either facts or case law requiring recusal on this record in light of the controlling standard.”

The department’s brief, if one can call it that, was just six sentences long, plus a string citation to three federal appellate precedents with excerpted, parenthetical quotations.

On Oct. 23, Routh filed his reply. He complained that the department had not “meaningfully” responded to his petition at all. He repeated the allegedly “unprecedented” nature of his situation and brought to the court’s attention an ABC News article filed the day before. According to the latter, a proposed personnel roster circulating in the Trump campaign’s transition operation lists Cannon as a possible candidate for U.S. attorney general in a future Trump administration. 

What might account for the unusual brevity of the Justice Department’s submission in Routh’s case? Perhaps it simply reflects dismissiveness, because the department judged Routh’s petition to be frivolous.

Alternatively, it might reflect a department that was not thrilled with the predicament it found itself in and was doing its duty in a perfunctory and pro forma fashion.

Obviously, most of the circumstances Routh was citing also implicate United States v. Trump, the special counsel’s prosecution of Trump for willful retention of national security information and obstruction of justice, which is now on appeal to the Eleventh Circuit. As noted, while Special Counsel Smith has not sought reassignment of the case, two amicus briefs supporting him have. One of those briefs is devoted entirely to that goal, in fact. That filing—by the nonprofit Citizens for Responsibility and Ethics in Washington (CREW); retired federal judge Nancy Gertner; and professional and judicial responsibility experts Stephen Gillers and James J. Sample—devotes 53 pages to its arguments. The brief develops in far greater detail issues alluded to only in passing by Routh, while advancing others not mentioned at all.

Suppose that at the Eleventh Circuit oral argument, which has not yet been scheduled, a judge on the panel asks the special counsel’s attorney what his position is on reassignment. Nobody knows what he’ll say. Presumably, he’ll take no position—no matter how rapturously he might welcome it.

Smith does not, in any case, have to ask for reassignment in order for it to be ordered. Appellate judges can reassign a case on their own motion, if they are of a mind to do so. Reassignment involves more fluid judgments than recusal. Appellate judges invoke it, for instance, where a district judge is perceived as having been recalcitrant to the appeals court’s earlier orders in a case. It’s a rare, but not unheard of, remedy.

The Routh motion placed the Justice Department in a sensitive position. The department’s opposition to it might be seen as undercutting the notion of reassignment in the case against Trump. Certainly, Trump or his supporting amici may argue that it did.

On the other hand, the department has a long-standing interest in preventing criminal defendants from engaging in judge shopping. Standards for recusals are, and must be, high. The department must uphold those standards and strive for consistency in its own filings.

Defendant Trump, for instance, has tried to recuse at least four judges presiding over his criminal and civil cases in recent years. The targets of these motions have included U.S. District Judge Tanya Chutkan in the election interference case against him in Washington, D.C.; U.S. District Judge Lewis Kaplan in the Southern District of New York, who has presided over civil cases against Trump for sexual abuse and defamation; New York state supreme court justice Arthur Engoron in Manhattan, who presided over Trump’s civil bench trial for “persistent fraud”; and New York state supreme court justice Juan Merchan, who oversaw Trump’s jury convictions for felonious falsification of business records.

Will the Justice Department’s opposition to Judge Cannon’s recusal in Routh’s case undercut the prospects of the Eleventh Circuit reassigning the classified documents case to a different judge?

In a direct message, Randall Eliason, a former federal prosecutor in Washington, D.C., and now an adjunct professor at George Washington University Law School, says he doubts the filing will have much impact.

Routh's motion is very weak and relies primarily on the fact that Judge Cannon is a Trump appointee and he’s said nice things about her. Institutionally, I don’t think [the department] can take the position that these would be sufficient grounds for recusal. Reassignment in [the classified documents] case would be based on [Cannon’s] actions in the case. ... [T]here’s an actual track record.

At the same time, Eliason adds that “it would not be unreasonable for Cannon to exercise her discretion to recuse [in Routh’s case], and a reasonable judge might do that.”

Routh’s motion concedes, as it must, that the mere fact that the president is a party in a case before the judge who appointed him does not warrant recusal. In May, Eleventh Circuit Chief Judge Pryor wrote as much in a “general order” rebuffing an ill-conceived, “orchestrated” campaign seeking to disqualify Cannon from the classified documents case for “misconduct.” Pryor mentioned in his order that the Eleventh Circuit clerk’s office had been inundated with more than 1,000 complaints against Cannon over a six-day period.

Routh’s attorneys argue, however, that his situation is unique:

Normally, a federal judge may be required to resolve a dispute involving an official policy, regulation, or program developed by the current President’s Administration. ... [Here,] a former President is involved ... in a purely personal capacity as the alleged victim of a crime—and an assassination attempt no less. In the mind of the public, this visceral context may make it even more difficult for a judge to set aside personal feelings of loyalty or gratitude for the President that bestowed on her a lifetime appointment to the bench. ... Indeed, it is unclear whether this scenario—i.e., a federal judge presiding over a criminal case where the very President who appointed her is the alleged victim of a violent crime—has ever occurred in the history of this country.

To that unique baseline circumstance, Routh then adds the aggravating factors referenced above. Routh alludes in passing to Cannon’s 2022 appointment of a special master to block Trump’s prosecutors from reviewing evidence turned up by the Mar-a-Lago search. That decree led to two unanimous appellate rebukes, first staying and then vacating her order. Similarly, Routh cites without elaboration her recent dismissal of Trump’s criminal case. He then chronicles Trump’s repeated praise for Cannon’s rulings in his cases, including during his Republican National Convention acceptance speech “viewed by more than 25 million people.” Routh’s attorneys write:

By repeatedly and publicly praising this Court by name for its rulings in his case, Mr. Trump has arguably bolstered the perception that the Court is partial in his favor. Moreover, were Mr. Trump to become President again in the future, he would be in a position to nominate Your Honor to a vacancy on a higher appellate court, including the U.S. Supreme Court. In the mind of the public, this prospect of a judicial promotion could arguably affect this Court’s ability to be impartial in this case[.]

As we’ve seen, federal prosecutors rejected Routh’s protestations with striking concision. Perhaps they hoped to eschew quotable rhetoric that could be used against them in any discussion of reassignment that might come up at the Eleventh Circuit argument.

In any case, there are obvious distinctions between the two cases. To begin with, Cannon has done nothing out of the ordinary in Routh’s case to date. Her involvement in United States v. Trump and in the investigation that led to it, in contrast, presents a different scenario, indeed.

The CREW amicus brief, seeking reassignment of Cannon from the classified documents case, takes deep dives into what it characterizes as Cannon’s “unprecedented” rulings in Trump cases. It focuses in particular on three controversies that took place before Cannon’s highly provocative dismissal of the criminal case. It argues: “A reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon’s many efforts to undermine and derail the prosecution of this case.”

The first dispute centers on the earlier-mentioned “special-master controversy.” In September 2022, Cannon found that the prosecution of a former president entails “stigma ... in a league of its own” and “reputational harm of a decidedly different order of magnitude”—findings that Pryor, for the unanimous panel, wrote “would defy our Nation’s foundational principle that our law applies to all, without regard to numbers, wealth, or rank.” Where Trump had failed to make a requisite showing under the law, Pryor continued, Cannon had “stepped in with [her] own reasoning” which was so overbroad that it could apply to “nearly every subject of a search warrant.” In vacating her order, as noted, Pryor then found that approving what she’d done would “violate bedrock separation-of-powers limitations” and require “radical reordering of our caselaw limiting federal courts’ involvement in criminal investigations.”

The second controversy CREW focuses on arose in March 2024 in the classified documents case. This uproar related to two jury instructions she ordered prosecutors to draft. In one of those, prosecutors were to presume that a president has “sole authority under the [Presidential Records Act (PRA)] to categorize records as personal or presidential during his/her presidency”; that “[n]either a court nor a jury is permitted to make or review such a categorization decision”; and that an outgoing president’s decision to withhold records from the National Archives and Records Administration—even records created by intelligence and defense agencies and classified as national security secrets—must be deemed his “categorization of those records as personal under the PRA.”

The prosecutors responded that both instructions she had ordered them to draft rested on the “fundamentally flawed legal premise” that the PRA’s distinction between personal and presidential records determines whether a president is authorized to possess highly classified documents under the Espionage Act. Special Counsel Smith demanded that Cannon state whether she was, in fact, planning to give that instruction so that he could seek mandamus relief before a trial was convened and double jeopardy attached. Cannon refused to do so, calling the demand “unprecedented and unjust,” and stating that her proposed instructions were just a “genuine attempt” to understand the parties’ positions. But she left unclear whether, if a trial ever did occur, she might yet give one of those instructions. 

The third controversy referenced in the CREW brief was an alleged pattern of “undue-delay” by Cannon, which it implies was intended to prevent trial before the election. The brief asserts that this pattern led “many to suspect—rightly or wrongly—that [Cannon] hoped the case would meet its doom in a second Trump Administration.”

To show that all three categories of controversy were generating a reasonable public perception that Cannon was not impartial, the CREW brief cites 15 news articles and two op-eds. Each news article quotes well-credentialed attorneys or law professors expressing consternation at her orders. Twelve of the articles appeared in the New York Times, with one each from U.S. News, the Boston Globe, The Hill, and CNN.com.

Trump’s attorneys have not yet responded to CREW’s brief—or to the special counsel’s, for that matter—having won a postponement of their filing deadline until Oct. 25. 

The great hurdle to reassignment that CREW faces is that Cannon’s dismissal of the criminal case due to asserted faults with Smith’s appointment—the ruling that occasions Smith’s appeal to the Eleventh Circuit—is not as legally preposterous as her imposition of the special master in September 2022. While her decision has shocked many attorneys, U.S. Supreme Court Justice Clarence Thomas had effectively invited Cannon’s ruling in his concurrence to the Court’s landmark immunity ruling in the other United States v. Trump—the election interference prosecution in Washington, D.C.—last July. And at least one critic of Cannon’s dismissal order, while urging its reversal, has opined—in Lawfare, no less—that Cannon’s decision was “well-written, thoughtful, and thorough” and “not a crazy opinion at all.”

So, notwithstanding the government’s six-sentence brief in Routh’s case, the prospects that the Eleventh Circuit will reassign Cannon from the classified documents case—assuming it first reverses her dismissal—probably remain about where they stood all along.

Which is to say, a longshot, but not impossible.