Senate Dems Helped Put Aileen Cannon On The Federal Bench

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

For the second time in this century, my profession has taken center stage nationally in my state. In 2000, there were the Brooks Brothers Riot, multiple legal proceedings in our state court system, and, ultimately, 5 Supreme Court members effectively deciding a presidential election. This time around, the first federal criminal prosecution of a former president in American history is occurring in the U.S. District Court for the Southern District Florida, to which I was admitted in the 1980s.

As readers of this site presumably have heard, questions have arisen about the assignment of Judge Aileen Cannon to the handle the criminal cases brought against Donald Trump and his valet. I know little about Judge Cannon other than the national notoriety that she gained last year when 2 of her rulings in favor of Trump during the grand jury investigation process were reversed by the 11th Circuit Court of Appeals. There has been particular note taken of her prior finding: “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own.”

This core position of hers was expressly rejected by the 11th Circuit, which stated: “To create a special exception here would defy our Nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth, or rank’.”

In short, this judge previously ruled that a former president is entitled to legal privileges not afforded to ordinary citizens, and the court of appeals that reviewed her decision (correctly) held that our legal system has never recognized such privileges. Judge Cannon’s having previously taken a clearly erroneous position on behalf of a defendant who’s now in her court on charges resulting from the investigation that she (briefly) slowed is cause for concern. That concern increases when Judge Cannon’s lack of experience either trying or conducting criminal trials is considered.

There are ongoing calls for the Chief Judge of the Sothern District, Florida, Cecilia Altonaga, to reassign the Trump case to another judge in that district. I first encountered Judge Altonaga when she was an assistant county attorney in 1991. I heard her speak at my son’s high school ca. 2012, and I currently have a case before her. I have nothing to add, however, to what others are saying in other forums about how she should handle this assignment of this judge to a case in her district. Instead, I wish to focus on the fact that Judge Cannon would not have attained this position without the votes of 12 Democrats during the 2020 lame duck Senate session.

In 2020, the Senate Dem Caucus (including Bernie and Angus King) had 47 members. When the Cannon nomination roll call vote took place (9 days after the 2020 election and 5 days after all the networks had called that election for Biden) 12 of the 34 Democrats who were present voted to confirm Cannon. Over 1 in 3 Senate Dems who voted decided to confirm her. Predictably, Manchin was 1 of them (Sinema didn’t vote). Others who voted aye included Tim Kaine (the 2016 Dem VP nominee), close Biden ally Chris Coons, and then Ranking Judiciary Member Diane Feinstein.

This vote occurred a mere 17 days after McConnell broke the “rule” he created to thwart consideration of the Merrick Garland Supreme Court nomination in 2016 and rammed through the Supreme Court confirmation of Amy Coney Barrett on a party line vote.

A few days before that vote, DiFi commemorated the closing of the Barrett confirmation hearings by publicly embracing Judiciary Chair Lindsey Graham:

This event was worthy of such a commemoration by DiFi, as it gave the GOP a 6-3 SCOTUS majority that virtually guaranteed the demise of the Roe/Casey line of precedents (and, as it turned out, a lot of other important precedents). When the other side makes up a Supreme Court confirmation “rule” in 2016 and then breaks it upon its first chance in 2020, it’s appropriate for the (literally) senior Senate Judiciary Democrat to congratulate one of the rule creators/breakers.

There were those who hoped, going into the Barrett confirmation process, that the Dems might attempt various procedural moves to slow down the Senate and delay the Barrett confirmation vote (at least until after an election that Trump was likely to lose to Biden). The expected consequences of her confirmation and the blatant GOP double standard provided every reason for them to have done so. Instead, Senate Dems raised token opposition and then saw their putative leading Judiciary member raise a white flag.

After getting pwned by the GOP (again) on the Barrett nomination, one would’ve hoped that the Dems would’ve resisted McConnell’s attempts to shove through a few more judicial nominations while he still held a Senate majority. At that point, no deference should’ve been shown to nominees from a (then) once-impeached lame duck president who was then (mis)using the courts in an attempt to overturn an election that he had lost decisively in both the popular vote and the electoral vote. There certainly should not have been 1/3 of the Senate Dems who voted on the Cannon nomination voting “aye.”

Obviously, no one knew then that Judge Cannon would end up issuing 2 legally dubious rulings during a criminal investigation of a twice impeached Donald Trump. No one knew that she would be assigned to handle pretrial matters and ultimately try multiple felony charges brought against Trump. The 12 Democratic senators who voted to confirm, however, DID know that they were cooperating with a (soon to be former) Majority Leader and Judiciary Chair who had made it their mission to run over the Senate Dems in order to seed the judiciary with as many Federalist Society members (like Judge Cannon) as possible.

There are countless ongoing analyses of different aspects of this critical and unprecedented criminal case. The confirmation vote for the judge who will set the trial date, rule on the admissibility of statements made by former Trump attorneys, conduct the jury selection process, and make many other critical decisions is an under-reported aspect of that case. That confirmation vote tangibly illustrates the consequences of the Senate Dems continually trying to play by Queensbury Rules against Senate GOP opponents who are veteran street fighters.