“To see what is in front of one’s nose needs a constant struggle”—George Orwell

Here's my behind-the-scenes look at why two of Judge Aileen Cannon's clerks quit since the Trump criminal case arrived in chambers.

It answers a lot of the questions that went unanswered in yesterday's post.

Here's the link:https://t.co/diqYo7zoRT

— David Lat (@DavidLat) March 22, 2024

Trying to be objective and fair-minded sometimes just obscures what is right in front of your nose.

David Lat does an admirable job trying to report on, and discuss, only the facts regarding Judge Aileen Cannon. He doesn’t want to be another internet screamer, and his report on the clerks who have left Cannon as rapidly as they could is admirable and very fair. But his method fails him when he tries to discuss what happened the first time Cannon handled a case involving Donald Trump, which, as he reports it, is where all the clerk troubles began.

First, a little background:

But she was well-regarded in the South Florida legal community. In the words of Jesse Panuccio, a prominent Florida litigator and current partner at Boies Schiller Flexner, “She had a sterling résumé and great reputation.” 

When rating judicial nominees, the American Bar Association (ABA) generally wants 12 years of experience for district judges. Cannon just met that mark, and the ABA rated her “Qualified” (with a minority of the panel rating her “Well Qualified,” but the majority rating controls).

Fair enough. But I remember when Rudy Giuliani was considered a good lawyer and “America’s Mayor.” Or when Michael Avenatti was well-regarded, for that matter. Perceptions are often wrong. Avenatti didn’t become an unethical cheat and Giuliani didn’t become an alcoholic loser; those failures, as the Greeks understood with tragic heroes,  always there, waiting to become obvious.

And none of the three lawyers I’m talking about are tragic heroes.

Everything was going fine for Judge Cannon. And then, in August 2022, she was assigned Trump v. United States—the civil case that former president Donald Trump filed against the federal government, challenging the seizure of documents from his Mar-a-Lago estate and seeking the appointment of a special master to review them. 

In September 2022, Judge Cannon largely ruled in Trump’s favor, ordering the appointment of a special master. Her ruling was widely criticized, and in December 2022, she was unceremoniously reversed by the Eleventh Circuit. The opinion was issued per curiam (“by the court” and therefore unsigned), but the panel consisted of Chief Judge William Pryor—a leading conservative jurist and Trump Supreme Court shortlister—and two Trump appointees, Judges Britt Grant and Andrew Brasher. 

What went wrong? Based on her academic credentials and what I’ve heard about her from mutual friends, I disagree with criticisms of her as unintelligent; to the contrary, I believe she’s quite smart. But there’s a difference between intelligence and good judgment, and her ruling in Trump v. United States lacked the latter.

Again, fair enough. But I think she threw all judgment out the window and proved that “intelligent” is not the same as “smart.” I’ve seen intelligent people strain at gnats and swallow camels as readily as fools do. “Intelligent” is not the same thing as “smart,” much less “wise.” Judge Cannon may be intelligent; but she’s as dumb as a post.

Many outsider observers dismiss Judge Cannon as a pro-Trump political hack. But sources of mine who know her personally push back on this, describing her as fair-minded and not particularly political. So while she definitely leans too far in Trump’s direction, giving dubious arguments from his legal team more consideration than they deserve, I think it’s oversimplifying matters to dismiss all her rulings as purely the product of “MAGA judging.” 

Instead, I’d suggest that in her handling of Trump v. United States, Judge Cannon thought like a pointy-headed appellate judge, not a commonsensical trial judge.1 A seasoned trial judge would have seen Trump’s request for a special master and quickly ruled, “Hell to the N-O.” Judge Cannon—a former appellate attorney, with limited trial experience—received Trump’s unorthodox request, identified novel legal issues, and thought to herself, “How interesting!” 

Grossly overthinking the matter, Judge Cannon ultimately issued a weirdly clever, creative ruling, leading legal commentator Chris Geidner to dub her “Trump’s best lawyer in years.” But the opinion was too clever by half—and just plain wrong—which is why the Eleventh Circuit made short work of it.

This is where Lat is too clever by half. It may be Cannon is not a “MAGA judge,” but if it walks like a duck and quacks like a duck, and reasons like one of Trump’s lawyers, then I think all those people who admired Giuliani were not paying enough attention, either.

What’s right in front of your nose, you know.

Lat doesn’t get any clearer about how this happened.

Aileen Cannon enjoyed a remarkable rise through the legal profession. She became a federal judge before age 40. Her judicial career got off to a perfectly solid start. Her first law clerks liked and respected her. 

And then came the Trump cases. 

Remember the saying, “Everything Trump touches dies”? Add Judge Aileen M. Cannon to the long list of people who have come into contact with Donald J. Trump and whose reputations—and lives—will never be the same.

Except Trump didn’t hire Cannon. She’s not supposed to work for him. And every other judge who has had Trump in their courtroom since January 6, 2020, hasn’t suffered his touch of death.

Cannon’s inexplicable rulings in the civil case for the MAL documents got her slapped so hard every lawyer in the country got the message. Except her. Her proposed jury questions (I think she’s trying to avoid an interlocutory appeal with that weird holding) indicate she’s leaning toward the completely unfounded interpretation of the PRA espoused by Tom Fitton. Fitton is not a lawyer, his reading of the PRA (the “Clinton Socks case”) is wholly unsupported at law, and the PRA doesn’t give Trump authority to make government documents personal. That was the Nixon situation which led to the passage of the PRA. Loose Cannon is not off base here, she’s off the reservation and out in La-La Land. Which is where she was in the civil case over these documents. She didn’t overthink it; she hasn’t proven herself capable of thought at all.

And this is all Trump’s fault, because ETTD?

No; this is because Cannon, who may be very intelligent, is also very stupid. In different ways, but really not unlike Avenatti and Giuliani. It’s really not that hard to see, once you look at it. 👀