What Does the Law Say About Recusing Judge Cannon?

Prosecutors in the Southern District of Florida face an added challenge in the prosecution of former President Donald Trump over the mishandling of classified documents at Mar-a-Lago: Judge Aileen Cannon. When Cannon was randomly selected as the judge in Trump v. United States, some pundits expressed concern regarding her history with the former president and past rulings in the parallel civil case, which Cannon also presided over, alleging that Cannon was biased toward the president. In an op-ed written by President George W. Bush’s chief ethics lawyer, Richard Painter, President Barack Obama’s ethics czar, Norman Eisen, and Fred Wertheimer, the founder and president of a nonprofit organization focused on government ethics, the authors demand that Cannon recuse herself based on her previous rulings. This same request has also been featured in a letter to the editor at the Washington Post, the editorial page of the Chicago Tribune, and on air on MSNBC. At the same time, some analysts have noted that the standard for recusal does not require Cannon to recuse herself. 

There are two statutes that require federal district court judges to recuse themselves in cases where they might be biased or reasonably have their impartiality questioned, but such statutes have been interpreted narrowly and usually refer only to judges’ personal connections to cases. Therefore, having Cannon recused based on her history and perception of bias is a difficult task.

Judge Cannon’s Relationship with Trump

Trump nominated Judge Cannon, a former federal prosecutor in the Southern District of Florida, in 2020. She was confirmed, with the support of 12 Democratic senators, by a vote of 56-21. 

In August 2022, Cannon was randomly assigned as the judge in Trump v. United States, a civil suit filed by Trump after a search warrant was executed and documents were seized from his Mar-a-Lago property. Trump requested that the court appoint a special master to review the seized materials and temporarily pause the Department of Justice investigation, and Cannon granted the request on legal rationale that many found highly questionable, and which the Eleventh Circuit later roundly rejected. The Department of Justice then requested that Cannon partially stay her order while they appealed it to the Eleventh Circuit, a request that she denied a few days later. 

Two weeks later, a panel of three judges on the Eleventh Circuit, two of whom were also nominated by President Trump, granted the emergency stay and ruled that Cannon not only abused her discretion in denying the stay but also incorrectly interpreted an “indispensable factor” such that she wrongly decided to exercise equitable jurisdiction over the case. Later, the Eleventh Circuit panel fully overturned her decision and ruled that the district court did not have the jurisdiction to consider Trump’s request, writing: 

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. 

Although there is no evidence of a personal relationship with Trump, this history of siding with the former president who appointed her has buttressed arguments for recusal.

Standard for Recusal 

Under Title 28 of the U.S. Code, recusal of a federal district court judge can be requested on two grounds: (a) bias or prejudice of a judge under Section 144 or (b) when impartiality might reasonably be questioned under Section 455. Section 144 requires a judge to recuse himself or herself when there is reason to believe that a judge has actual personal bias or prejudice, and a litigant can request recusal under Section 144 by submitting an affidavit with evidence that would convince a reasonable person that actual bias exists. Meanwhile, Section 455 requires that a judge recuse himself or herself “in any proceeding in which his [or her] impartiality might reasonably be questioned.” This is an objective standard that asks “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.” A litigant can request recusal under Section 455 by submitting a motion, or judges can recuse themselves sua sponte. 

Plainly, according to Section 455(b), financial investments, or familial, personal, or professional relationships are situations warranting recusal. However, Sections 455(a) (referring only to perceptions of impartiality or bias) and 144 (referring to bias or prejudice) are more vague. At first blush, both statutes appear potentially helpful for the government and applicable to Cannon’s situation. But decades of case law have narrowed the applicability of the statutes significantly by determining what types of interactions with parties are evidence of bias or would create perceptions of bias. 

First, the mere appointment by a president or ideological affiliation with a political case likely does not rise to the level of requiring recusal for cases involving the president, his or her administration, or other politicians close to the president. In 2022, also in the Southern District of Florida, Trump requested the recusal of a judge nominated by President Bill Clinton in a lawsuit brought against Hillary Clinton. The judge denied the request for recusal, citing the fact that mere appointment by a president is not sufficient to support a claim of bias in favor of the president or his family. 

In other cases, not even friendship with the president or other important political figures has proved enough to require recusal. In Cheney v. U.S. District Court for D.C. in 2004, a case regarding a decision by the National Energy Policy Development Group, of which Vice President Dick Cheney was a member, Justice Antonin Scalia refused to recuse himself even though he had gone on a duck-hunting trip with the vice president the year prior. Scalia listed several examples when both liberal and conservative Supreme Court justices did not recuse themselves in cases important to the administrations that appointed them even though they had close friendships with the sitting president. However, Scalia did note that this case was distinct because the vice president was a party only in his official capacity and that “friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue.” 

Although friendship can be grounds for recusal, the principle of “extrajudicial source” requires evidence of bias to be from personal interactions between the judge and a party, not just from prior positive or negative judicial rulings. The Eleventh Circuit has stated on several occasions that, except where “pervasive bias and prejudice” is shown, a judge cannot be required to recuse themselves. Pervasive bias must go beyond “mere friction between the court and counsel” and be “so extreme as to display clear inability to render fair judgment.” The author has yet to find a single case in the Eleventh Circuit where the court of appeals has required a judge to recuse themselves based on pervasive bias and prejudice emanating from their judicial decisions. 

An added challenge in alleging bias and requesting recusal under Section 455 is that the same judge who is having his or her impartiality questioned hears the initial request. This results in almost all requests being denied. On appeal, the Eleventh Circuit reviews cases for abuse of discretion, a much higher bar requiring the court of appeals not only to find that a judge probably should have recused himself or herself, but to find that the potential bias was so significant that the judge was mandated to recuse. If a party never raises the issue of bias at the trial level and brings up the issue only during appeal, then the Eleventh Circuit reviews the motion for plain error. This means that failure to recuse must have been manifestly and clearly against the law. Even though a party can seek review by a different judge under Section 144, that would require a party to submit an affidavit with evidence of actual bias. Finally, requesting recusal is usually an unwise trial tactic as it is seldom (some say “functionally never”) granted, and litigators must then continue the trial with a judge whom they had just accused of prejudice. When a judge makes rulings that are so adverse to a party that they have little to lose in a recusal request, such a motion may be appropriate. Otherwise, motions to recuse may be more about altering the public perception of a judicial proceeding than winning the case in court. 

One possibility is that, after an appeal, a court of appeals can reassign the case to a different district court judge if they do not trust the district court to apply their ruling. This is still considered an “extraordinary measure,” but circuit courts have reassigned cases to other district court judges when “the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.” When analyzing whether a trial judge would meet this standard, the Eleventh Circuit looks at three factors: (a) whether the judge would have difficulty dismissing his or her previous views, (b) whether reassignment would help “preserve the appearance of justice,” and (c) whether reassignment would be wasteful or duplicative. Reassignments usually occur when a district court judge continues to misapply the circuit court’s rulings even after receiving instruction from the court of appeals or makes explicitly biased statements over the course of the trial. Because neither of those circumstances necessarily applies to this case at the moment, any imminent reassignment seems unlikely. 

Applying the Eleventh Circuit Recusal Standards to Judge Cannon

Unless Judge Cannon decides to voluntarily recuse, the high bar for requesting recusal based only on prior judicial decisions, and the procedure for requesting recusal, makes the task of having Cannon recused seem almost impossible. Although the Eleventh Circuit has been quick to overturn Cannon’s questionable rulings in the past, forcing Cannon’s recusal here would be a significant departure from prior precedent. For these reasons, it appears unlikely that the prosecution would pursue recusal at the district court level and will prepare to conduct a trial with a judge who may be kinder to President Trump than some other judges. However, this does not mean recusal is irrelevant. 

The possibility of recusal and reassignment may discourage Cannon from making questionable rulings as she did in Trump’s earlier civil case. She likely recognizes that similar rulings in Trump’s favor risk becoming evidence for a potential recusal motion on the grounds of “pervasive bias and prejudice.” Likewise, Cannon may feel chastened by the Eleventh Circuit’s harsh reversal of her decisions in that earlier case, and she would presumably prefer to avoid the reputational damage that would follow if the circuit court reassigned the case on the grounds of an appearance of impropriety or lack of impartiality. At the same time, with all of the public attention on this case, the Justice Department will likely want the public to focus on the facts of the case rather than on any drama involving the judge. As a result, both the Justice Department and Judge Cannon have an incentive to keep things “business as usual” to prevent any appearances of impropriety. 

So far, “business as usual” has prevailed in the trial. However, Trump filed a motion to delay the trial, possibly until after the November 2024 election, alleging that he could not receive a fair trial prior to that date. The Department of Justice has responded by writing that “there is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion, and the Defendants provide none.” In a hearing yesterday, Cannon appeared skeptical about Trump’s arguments but did note that she would likely need to push the start date of the trial from mid-December because of potential complications regarding classified evidence and the immense amount of discovery. While such a delay would not be abnormal, Trump’s legal team appears interested in delaying the trial as much as possible. As the first significant ruling in the criminal case, Cannon’s ruling and how she treats future delay tactics from Trump’s legal team may be indicative of how she plans to conduct the trial. Until then, recusal remains unlikely.