Following Special Counsel Jack Smith’s registration of a movement in the national papers event currently pending against Donald Trump in Florida on Friday, Democrats began creating a new recusal incident. The former leader was asked to make “public claims that pose a major, inevitable, and immediate threat to the law enforcement agents participating in this case,” according to the action.
Communist lawyers immediately responded as if the particular counsel’s ask were some five-dimensional game shift that will ultimately result in Cannon being pulled from the case shortly after Smith filed the action. Roger Parloff, a senior editor at Lawfare, first hinted at the theory on Friday evening, suggesting Smith had” crafted” the motion” to highlight Judge Cannon’s bias &, hypocrisy if she fails to take action” . ,
Andrew I- Unintentionally- Wiped- My- iPhone Weissmann expanded on Parloff’s ponderings, posting soon Friday on X:” Smart move by Smith as Judge Cannon did n’t be likely to grant the gag order, did show her patent bias, and Smith may then appeal to the 11th Circuit” . ,
Soon, law professor Laurence Tribe echoed Weissmann’s suggestion, saying,” Smith has finally teed up a motion whose likely denial by Judge Cannon should lead CA11 to remove her from the stolen documents case against Trump.”
Barb McQuade, a former U.S. attorney turned law professor and NBC/MSNBC legal analyst, reiterated the trope, saying,” Jack Smith is seeking a court order to stop Trump from making more false and dangerous accusations against the FBI in Mar-a-Lago case. If Judge Cannon refuses, this could be the move that tees up recusal”.
The idea that the 11th Circuit Court of Appeals — the federal circuit court that hears appeals taken from Judge Cannon’s court and other district courts in Florida, Alabama, and Georgia — would “recuse” her if she denies the special counsel’s motion is fantastical. First, appellate courts do n’t “recuse” a judge, they reassign a case. Second, reassignment is extremely rare, especially in the 11th Circuit, with a 2018 article noting that over a 50- plus- year period, the circuit court had reassigned only 28 cases. In contrast, during that same time, the Seventh Circuit, where I served as a career law clerk for nearly 25 years, reassigned cases 324 times. Even then, the judges were loath to do so.
Although reassignment occurs frequently in the 11th Circuit, it does occur, but the majority of the cases involve more than the appellate court’s findings indicate that the lower court made an error. For instance, reassignment was ordered where the judge had questioned “from the bench … the wisdom of the substantive law he had to apply and challenged the government’s decision to prosecute]the Defendant”. ] The prosecution was described as” silly” and” a waste of the taxpayers ‘ money,” by the trial judge in that case. Additionally, the 11th Circuit ruled that the judge had “demonstrated great difficulty in putting aside his previous conclusions about the merits of this prosecution.”
In contrast, Judge Cannon’s only appearance of a supposed bias comes from her ruling against Smith’s office. A denial would not establish Cannon’s bias in the context of Smith’s most recent motion, which effectively seeks a gag order on the leading presidential candidate in the months leading up to the November 2024 election.  ,
In fact, it seems unlikely that the 11th Circuit would grant Cannon’s request because it sought to impose a vague and overriding speech restriction on Trump. Specifically, Smith seeks an order conditioning Trump’s release on him not making “public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case” . ,
But Smith’s statements that are considered dangerous are nothing of the sort. For instance, Smith complained that Trump posted that the FBI “WAS AUTHORIZED TO SHOOT ME”, was” just itching to do the unthinkable”, and was “locked &, loaded ready to take me out &, put my family in danger…”
Nothing about those accusations creates a” significant, imminent, and foreseeable danger”. However, those same words would put Trump in lockstep with Smith and have him detained while his trial is pending. Therefore, it’s unlikely that Judge Cannon will grant Smith’s motion, and that the 11th Circuit will likely find it wrong to believe that she made the wrong decision.
Judge Cannon wo n’t be deciding Smith’s motion just yet, however. On Monday, Trump’s legal team filed a motion to strike the special counsel’s latest gambit and sought sanctions. Trump’s motion raises a purely procedural issue, namely that the special counsel disregarded local laws that require the attorneys to speak with one another before making motions.
No such conferral occurred, Trump’s lawyers noted, with Smith’s legal team instead informing them at 5: 30 p. m. on Friday that they would be filing the motion. The former president’s attorneys asked the special counsel’s office to do so over objections, and the prosecution requested that the motion be discussed on Monday first. Trump’s attorneys argued that the prosecution had no valid reason to rush the filing, underscoring that nothing would occur over the weekend-long Memorial Day weekend.
Then why did they file the motion when they did it? Trump’s legal team does n’t know but asked the court to find out by inquiring about the prosecution’s purpose during an evidentiary hearing.
Judge Cannon may well be criticized for bringing up the special counsel’s office because she broke local laws that require opposing counsel to speak before motions are filed, despite the possibility that Judge Cannon will question the prosecutors about their motivations. She will probably also need this clarification before taking the motion into consideration.
No one should anticipate the 11th Circuit to rescind the case, regardless of Judge Cannon’s final decision regarding the motion. Oh no, Weissmann and his ilk probably did n’t even think that was wishful thinking. Rather, it seems likely they floated the theory to provide a hook to re- up calls for Judge Cannon’s recusal.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served on the Seventh Circuit Court of Appeals as a permanent law clerk for a federal appellate judge for nearly 25 years. Cleveland was a full-time faculty member before switching to a teaching adjunct position. Additionally, Cleveland serves as a lawyer for the New Civil Liberties Alliance. You can follow Cleveland on Twitter at @ProfMJCleveland to learn more about her most cherished accomplishments, including her husband and son. Cleveland’s views are those expressed here in her personal capacity.
