By Donald V. Watkins
Copyrighted and Published on June 13, 2023
An Analysis and Editorial Opinion
After I published a June 11, 2023 article describing why and how U.S. District Judge Aillen Cannon is expected to kill the Department of Justice case against former president Donald J. Trump, I received a number of private inquiries from readers who wanted to know whether federal law required Judge Cannon to step down as the presiding judge in Trump's case.
The answer is, “No.”
The applicable 11th Circuit Court of Appeals case on this point is United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987). Ironically, this appellate court ruling involved the defendants’ requested removal of Birmingham, Alabama U.S. District Court Judge U.W. Clemon as the presiding trial judge in the decades-long federal case to desegregate Alabama’s 32 public colleges and universities.
As explained in my June 11th article, Judge Clemon developed the “death knell” playbook for how an experienced trial judge can effectively kill the government’s prosecution of defendants in a highly partisan, high-profile, criminal conspiracy case. Judge Clemon brilliantly implemented this playbook in the case of U.S. v. Don Siegelman, Paul Hamrick, and Phillip Bobo (2004).
On May 27, 2004, Siegelman was indicted by a federal government in Birmingham for fraud. The day after his trial began in October 2004, prosecutors were forced to drop all charges against Siegelman and Hamrick after Judge Clemon threw out much of the prosecution's evidence.
Clemon, a longtime Democratic power-player, was the first black federal judge in Alabama history. He was nominated to the federal bench by Jimmy Carter. Donald Siegelman was the Democratic governor of Alabama (1999 to 2003). Siegelman ran for governor in 2004 and lost to Republican Bob Riley.
On October 26, 2005, federal prosecutors indicted Siegelman and former HealthSouth Corp. CEO Richard Scrushy on public corruption charges. In June of that year, Scrushy defeated federal prosecutors in an original 85-count Indictment arising from a $2.7 billion accounting fraud scheme at HealthSouth. Scrushy was indicted in HealthSouth case in November of 2003.
Judge Clemon’s playbook also shows Cannon how to hold Special Counsel Jack Smith and members of his prosecution team in contempt of court and/or lock them up, if she chooses to do so.
The Relevant Question on Whether Judge Cannon Must Step Down in Trump’s Case
Based upon the speck facts and circumstances in Donald Trump's criminal case, this is the relevant question on whether Judge Aileen Cannon must step down in Trump's case: Did Judge Cannon actively participate in the very events and shape the very facts that are at issue in this criminal prosecution?
Again, the answer is, “No.”
Judge Cannon did not assist Donald Trump in removing the classified documents in question from the White House in January of 2021. She did not assist Trump in storing the documents at Mar-a-Lago several days later. And, Judge Cannon did not participate in any activity to conceal the classified documents from the FBI during the August 8, 2022, raid on Mar-a-Lago.
Just because Judge Cannon ruled against the government during proceedings last year that related to the FBI search of Mar-a-Lago is NOT a valid ground for seeking her removal from Trump's case.
The Court of Appeals asked the same question in Judge Clemon’s higher education desegregation case and answered this question in the affirmative. The Court closed its ruling in Clemon's case with this enduring statement:
“That all may drink with confidence from their waters, the rivers of justice must not only be clean and pure, they must appear so to all reasonable men and women. Under the particular facts before us, the prior activities of the district judge [as a state legislator] cloud the court's impartiality and diminish its moral force.“