This article has been updated to reflect more detailed information on the Southern District of Florida’s normal procedure for assigning cases to judges.
Though prosecutors publicly unveiled a deep and detailed set of evidence against former President Donald J. Trump in their investigation into the documents on Friday, they suffered a potential setback with the surprise assignment of the case to Judge Aileen M. Cannon.
Florida’s Trump-appointed Judge Cannon, 42, shocked legal experts across ideological lines last year by intervening in the investigation and handing down rulings favorable to Mr. Trump, only to be rebuked by a conservative appellate court.
The Chief Clerk of the Southern District Court of Florida said new cases are being randomly delegated to his judges even if they are related to previous ones. It wasn’t immediately clear whether Mr. Trump got lucky or an exception was made. Either way, legal specialists said Judge Cannon’s return was significant.
The unsealed indictment offered « a strong factual presentation, » said Paul Rosenzweig, a former Bush administration official and federal prosecutor who worked on the independent legal investigation into President Bill Clinton. “If this were a normal person and a normal case, you would be talking to your client about pleading guilty. So I think Cannon’s draw is actually a blow to the prosecution.
Now that Mr. Trump has been charged — on 37 criminal counts, including 31 Espionage Act violations, various obstruction charges and misrepresentation — Judge Cannon may have ample opportunity to hand down sentences impacting the time and outcome of the case .
For one thing, the substantial evidence described in the indictment comes from Mr. Trump’s own attorneys, raising the likelihood of a fight over whether to suppress it over a matter of attorney-client privilege.
Such evidence includes a recorded voice memo and witness testimony showing that Mr. Trump kept his legal team in the dark about whether an aide, Walt Nauta, moved boxes from a storage room. An attorney, M. Evan Corcoran, then searched the room for classified material in response to a subpoena, and another, Christina Bobb, signed a statement inaccurately stating that all remaining confidential documents were been delivered.
Behind closed doors, Mr. Trump and his team had fought a pitched battle to prevent the special counsel from obtaining that information. But the District of Columbia federal District Court Chief Judge Beryl A. Howell ruled that the so-called felony fraud exception applied, allowing a district grand jury to hear it.
Those decisions, however, only concerned what could be shown to a grand jury. Mr. Trump’s defense team can file new motions to suppress that evidence and prevent the information from reaching the trial jury, and Judge Cannon will not be bound by Judge Howell’s rulings.
The decisions Judge Cannon made in setting the pretrial and trial timetable could also be critical. Mr. Trump has long pursued a strategy of trying to run out of time on legal matters, and if he can push the process on the documents beyond the 2024 election, there’s a chance that a Republican, whether Trump himself or a other candidate – will become president and close the case.
Because the case involves classified evidence — 31 of the counts against Mr. Trump focus on Espionage Act violations in the unauthorized retention of 31 secret and top secret documents — any judge is likely to spend a lot of time handling pretrial hearings on whether to allow substitutions that do not contain confidential information.
Samuel Buell, a white-collar criminal law professor at Duke University and former chief prosecutor on the Enron task force, said there could be « a lot of detours and delays and things that could work well in the MAGA media space, but I don’t see legally as even a judge inclined to do evil will prevent this from going to trial.
However, « off-screen rulings could come in here, » he said, adding, « When you have classified documents, there’s abundant opportunity to slow that down, and if they have a judge who’s willing to go forward with slowing down, it becomes very difficult to predict. » when this will be processed.
Truth be told, there’s no guarantee Judge Cannon will pick up on the pattern he showed last fall. Whether she will respond to the reputational damage he caused her by using a second turn in the spotlight to govern more directly remains to be seen.
New York University law professor Ryan Goodman said the 31 documents at the center of the Espionage Act allegations were most likely hand-picked by Jack Smith, the special counsel leading the investigation, and after negotiating with officials of national security on their possibility of being shown to the defense team and, if necessary, to the jurors.
One problem that could arise is if intelligence agencies agreed to allow Mr. Smith to use certain documents with the expectation that he would persuade a judge to prevent them from being shown in court. If Trump’s legal team argues that certain documents must be used openly for there to be a fair trial, the rulings in Trump’s favor could lead the government to consider instead dropping any charges on which those files are based.
Judge Cannon was born in Cali, Colombia and raised in Miami. His mother fled Cuba as a young man after the communist revolution of 1959 and his father’s family is from Indiana. She is a graduate of Duke University and the University of Michigan Law School, has worked for a conservative federal judge, and has worked in both a law firm and as a federal prosecutor.
She joined the conservative Federalist Society as a law student in 2005 and was just 39 when Trump nominated her for a federal judgeship in 2020. Working in a small federal court in Fort Pierce, Florida, north of the county of Palm Beach, he attracted little attention until he handled special litigation over the search of Mar-a-Lago, Mr. Trump’s Palm Beach club and residence.
Last year, Judge Cannon oversaw a civil lawsuit filed by Mr. Trump after the FBI searched Mar-a-Lago and seized numerous government documents and other materials filed with them. They included 102 files marked classified, which Mr. Trump had not turned over after receiving a subpoena months earlier.
Judge Cannon temporarily barred investigators from accessing materials, ordered a special chief to examine files for anything to be kept permanently off limits, entertained the unprecedented notion that some White House files might be kept hidden from Justice Department criminal investigators under executive privilege, and set a timetable that nearly threatened to freeze the investigation for at least four months.
His views suggested that a former president should receive greater protections than a typical criminal suspect. He also assisted Mr. Trump by overruling the special master he had appointed, Judge Raymond Dearie, when he ordered Mr. Trump to certify the accuracy of the FBI inventory of property he seized from his estate in Florida.
But the Justice Department appealed, and an 11th Circuit Court of Appeals jury, which included two other Trump appointees, dropped its interference. In a harsh ruling, the panel said it never had the legitimate jurisdiction to order the review or prevent investigators from using the files and that there was no justification for treating Mr. Trump any differently from any other target of a search warrant. The Supreme Court let the decision go without comment and Judge Cannon dismissed the lawsuit.
Last fall, this reporter asked for clarification that Judge Cannon’s involvement in the lawsuit meant that any indictment would automatically be assigned to her if it were filed in the Southern District of Florida. In the emails, the chief clerk of the court, Angela Noble, wrote: “We do not assign related cases to the same judge. A related case will still be randomly assigned.
However, the odds of a charge being randomly assigned to Judge Cannon were low.
Normally, the district assign new cases to the judges who sit in the sections where the questions arose or in the contiguous ones. Mar-a-Lago is located in the West Palm Beach division between Fort Pierce and Fort Lauderdale. Seven active judges have chambers in these three divisionsas well as three high-level still hearing cases.
Ms. Noble did not immediately respond to an email asking for clarification on what happened.
Mr. Trump and his team have already signaled they plan to raise misconduct allegations from prosecutors and investigators, as they did this month at a meeting at the Justice Department trying to avoid an indictment.
Criminal defendants routinely claim that prosecutors have threatened witnesses and committed other wrongful conduct, and rarely succeed. But if Judge Cannon takes those claims more deferentially than trial judges typically do, Mr. Smith and his team could actually go on trial before Mr. Trump.
« Preliminary litigation over the conduct of prosecutors is a good reason to make things up and fits Trump’s message, which is going to be ‘politically motivated and out of control prosecutors,' » Buell said. « So we’re going to see a lot of that. »