Judge Aileen Cannon has broad power to control the direction — and the pace — of the classified documents case.
Donald Trump seemed to win the judicial lottery when his newest criminal case — a 37-count indictment for hoarding classified documents and obstructing a grand jury probe — landed before U.S. District Court Judge Aileen Cannon.
Cannon, a Trump appointee confirmed to the federal bench just days after Trump lost his reelection bid, ruled deferentially for Trump last summer when he contested the FBI’s seizure of some of those very documents. Legal experts described Cannon’s pro-Trump rulings at the time as audacious and even lawless, and a conservative appeals-court panel (which itself consisted of two other Trump appointees) quickly overruled her.
Now, Cannon will be in an even more powerful position to steer Trump’s legal fortunes. After special counsel Jack Smith obtained an indictment in the Southern District of Florida, about seven active judges in the district appeared eligible to preside over the case. In an apparently random twist of fate, the court’s computerized assignment system allocated the case to Cannon..
The pace of the case
Cannon can decide how quickly or slowly to move proceedings along — with the key benchmark being whether a trial can conceivably take place ahead of the 2024 election. One of the earliest decisions she’ll make is to ballpark a trial date and set a rough schedule for future proceedings.
If prosecutors seek a “speedy trial” — as Smith pledged to pursue last week — and Trump asks for a significantly longer windup, Cannon can determine which side the schedule will favor.
This is perhaps the most significant part of the trial in a case this extraordinary. The prospect of finding 16 or more people — federal juries typically include 12 jurors and four alternates — who can set aside political feelings about Trump to render an impartial verdict is already a Herculean task.
Cannon will set out a process to help vet what is certain to be an enormous jury pool, a process that could include multiple rounds of questionnaires, in-person questioning known as “voir dire” and a chance for both parties to exercise “peremptory strikes” — unilaterally removing a predetermined number of jurors they have misgivings about.
Trump’s defense may hinge on keeping out reams of evidence the government has amassed or kicking up dirt at the prosecution and how the case was investigated prior to the indictment. Cannon will have the first crack at ruling on Trump’s claims of selective prosecution or prosecutorial misconduct related to the search of his Mar-a-Lago home. Trump is also certain to seek to exclude evidence obtained from his attorney, Evan Corcoran, following a Washington D.C. federal judge’s decision to pierce Trump’s attorney-client privilege under the so-called crime-fraud exception.
Even in a run-of-the-mill criminal matter, the process of evidence-sharing among parties can be a fraught and decisive early phase. Here, with every syllable under intense scrutiny, Cannon’s decisions on the so-called “discovery” process could be paramount.
Unlike most criminal prosecutions, the Justice Department’s case against Trump rests on an extraordinary amount of classified material, some of which implicates the most sensitive secrets the government possesses. Trump, who is facing 31 counts of “willfully retaining” military secrets, is sure to demand as much declassification of that material as possible as he defends himself. Prosecutors — in consultation with intelligence agencies and other parts of the federal government — have to make tradeoffs about what they’re willing to disclose and what would present too great a risk to national security.
Rule 29 acquittal
Like all federal judges, Cannon has the discretion to grant Trump an acquittal on any of the 37 counts he faces — or on all of them — at the conclusion of the government’s case or after any defense Trump’s lawyers may put on. Such a ruling — under Rule 29 of the Federal Rules of Criminal Procedure — would amount to the judge’s declaration that the government failed to prove a key element or elements of its case and that no reasonable jury could find the former president guilty based on the evidence presented.
Should the case reach the sentencing phase, Cannon will be responsible for fashioning a just sentence. Federal judges are required to consider a variety of factors when they issue sentences, including the “nature and circumstances” of the offense, the history and characteristics of the defendant and the need to deter future crimes.