Democrats began concocting a new recusal scandal on Friday, following Special Counsel Jack Smith’s filing of a motion in the federal documents case now pending against Donald Trump in Florida. That motion requested that the presiding judge, Trump-appointee Aileen Cannon, prohibit the former president from 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.”
Soon after Smith filed the motion, leftist lawyers responded as if the special counsel’s request were some five-dimensional chess move that will finally lead to Cannon being pulled from the case. 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-Accidently-Wiped-My-iPhone Weissmann expanded on Parloff’s ponderings, posting late Friday on X: “Smart move by Smith as Judge Cannon won’t be likely to grant the gag order, will show her patent bias, and Smith can then appeal to the 11th Circuit.”
Soon law professor Laurence Tribe amplified Weissmann’s brainstorm, reposting it and commenting, “Smith has finally teed up a motion whose likely denial by Judge Cannon should lead CA11 to take her off the stolen documents case against Trump…”
Former U.S. Attorney-turned-law professor and NBC/MSNBC legal analyst Barb McQuade repeated the trope, posting, “Jack Smith is seeking a court order to prevent 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 don’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.
While reassignment in the 11th Circuit is rare, it does happen, but the cases where it does are extreme and involve more than the appellate court believing the lower court erred. 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 trial judge in that case had said the prosecution was “silly” and “a waste of the taxpayers’ money.” The 11th Circuit also concluded the judge had “demonstrated great difficulty in putting aside his prior 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. And in the context of Smith’s latest motion, which effectively seeks a gag order on the leading presidential candidate in the months leading up to the November 2024 election, a denial would not establish Cannon’s bias.
In fact, it seems unlikely the 11th Circuit would reverse Cannon if she were to deny Smith’s motion because that motion seeks a vague and overbroad limit on Trump’s speech. 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 what Smith presents as dangerous statements are nothing of the kind. 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.” Yet if Smith’s motion were granted, those same words would subject Trump to arrest and detention pending his trial. Thus, not only is it unlikely Judge Cannon will grant Smith’s motion, but it is equally unlikely the 11th Circuit would conclude she erred in denying the request.
Judge Cannon won’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 argues a purely procedural matter, namely that the special counsel disregarded local rules that require the attorneys to confer with each other before filing 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 special counsel’s office then did so over objections from attorneys for the former president, who asked prosecutors to discuss the motion on Monday first. Prosecutors had no valid reason to rush the filing, Trump’s lawyers said, stressing that nothing would happen over the long Memorial Day weekend.
Why then did they file the motion when they did? Trump’s legal team doesn’t know but asked the court to find out by inquiring about the prosecution’s purpose during an evidentiary hearing.
While it is unlikely Judge Cannon will quiz the prosecutors on their motives, she may well chastise the special counsel’s office for violating the local rules that require opposing counsel to confer before filing motions. She is also likely to require such conferral before considering the motion.
But no matter how Judge Cannon ultimately rules on the motion, no one should expect the 11th Circuit to reassign the case. Heck, reassignment probably wasn’t even wishful thinking for Weissmann and his ilk. 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 for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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