Judge Aileen Cannon is facing growing accusations of bias from the same legal experts who cheered Judge Juan Merchan, whose rulings consistently favored the Democratic prosecutors who secured former President Donald Trump’s conviction in the hush money case.
Cannon’s decision to allow hearings on a number of challenges from Trump’s defense team in the classified documents case against him, rather than reject those challenges outright, has enraged many legal commentators. They accuse Cannon of giving Trump favorable treatment, sometimes by citing the fact that the former president appointed her to her position.
But the legal punditry had far fewer concerns about the appearance of favorable treatment Merchan displayed toward Manhattan District Attorney Alvin Bragg, who charged Trump with 34 felonies related to a years-old hush money arrangement using a novel legal theory. And Merchan had the additional baggage of his small donation to President Joe Biden and the political work his daughter performed for Democrats fundraising off of Trump’s criminal cases.
“Some of Merchan’s rulings were appallingly biased — down to the last one in which the jury was not required to reach a unanimous finding on the most critical issue in the trial (namely, the supposed unlawful conduct that Trump was allegedly trying to conceal in allegedly falsifying his business records),” Andrew McCarthy, a former federal prosecutor, told the Washington Examiner. “By contrast, Cannon’s conduct of the trial is being spun as if it’s biased, but it’s clearly not.”
Merchan received generally glowing reviews from prominent legal experts during the weekslong trial in New York over Trump’s hush money case.
Andrew Weissman, a former top prosecutor on the Russia investigation, said last month that he has a “man crush” on Merchan.
“He is such a great judge that it’s hard to see that the jurors wouldn’t have the same impression,” Weissman said during an appearance on MSNBC last month.
“If you looked in a dictionary for judicial temperament, that’s what you would get,” Weissman said of Merchan. “It is just such an impeccably fair trial.”
But Weissman has had far harsher words for Cannon.
“It is just truly a disgrace that she is not doing her job,” Weissman said last month. He said Cannon’s recent decision to set aside the initial start date of the trial in order to weigh pretrial motions was “a testament to, at the very least, incompetence and, some might say, much worse than that.”
A trio of left-leaning legal experts praised Merchan for keeping Trump on a “tight leash” during jury selection.
“In Merchan’s courtroom, our country’s bedrock principle that no one is above the law is flourishing,” Norm Eisen, a top lawyer for House Democrats during their 2020 Trump impeachment trial, Jacob Kovacs-Goodman, attorney for State Democracy Defenders Fund, and Francois Barrilleaux, research assistant at State Democracy Defenders Action, wrote in an opinion piece for MSNBC in April.
Earlier this month, Eisen said Merchan “did a brilliant & scrupulously fair job of judging” in Trump’s hush money case.
But Eisen called Cannon’s handling of Trump’s classified documents case “atrocious.”
“Some of these decisions are bizarre enough that you have to wonder if she doesn’t have a bias toward the president who appointed her, Donald Trump,” Eisen said during an appearance in May on CNN. “I think that it all constitutes a conflict.”
McCarthy blamed special counsel Jack Smith’s aggressive indictment, not Cannon’s rulings, for the delays in the case.
“The trial does not have a trial date because Smith overcharged it — he could have brought a straightforward obstruction case. Instead, he larded the indictment with three dozen classified-information counts,” McCarthy said.
Doing so introduced requirements that have bogged down the proceedings. Both sides have had to contend with the Classified Information Procedures Act, which, McCarthy noted, forces the court to “rule on the admissibility of all potential classified evidence prior to trial — and appeal is permitted.”
Other issues outside Cannon’s control have surfaced as well. Smith acknowledged in a filing in May that the FBI had not maintained all the documents agents seized from Trump’s home in the same order in which they were found, allowing Trump’s lawyers to challenge the integrity of the evidence.
“If Smith had done what a number of analysts recommended and simply indicted a grand-jury obstruction case, he would not be mired in CIPA litigation,” McCarthy said. “In an obstruction case, the contents of the classified documents would not matter. The issue would strictly be whether Trump knowingly refused to turn over documents that physically bore classified markings.”
“There was no need to do Espionage Act charges — much less three dozen of them,” he added.
Critics have said Cannon should have ruled swiftly against Trump on a range of issues that she has opted instead to consider, such as whether the special counsel can admit testimony from Trump’s former attorney after prosecutors used a legal maneuver to pierce attorney-client privilege.
But Cannon has also rejected some of Trump’s motions.
“Cannon has ruled in Smith’s favor on a number of issues, including refusing to dismiss the indictment on various grounds advanced by Trump. The criticism of her for not setting a trial date is ridiculous,” McCarthy said. “She had a trial date, May 20, which turned out to be entirely unrealistic due to the classified information and other issues. Rather than set another illusory date, she made an aggressive schedule to try to get through much of the pretrial work, which was not easy because Trump has a right to be present at these proceedings but was on trial for six weeks in Manhattan.”
On Friday, Cannon heard arguments over whether Attorney General Merrick Garland lawfully appointed Smith as special counsel. She will address additional pretrial arguments during hearings scheduled for Monday and Tuesday, including whether to toss the testimony from Trump’s former lawyer.
Merchan rejected many of the challenges raised by Trump’s team throughout the hush money trial. For example, he barred the defense from calling what would have been its star witness: a former Federal Election Commission chair who planned to testify about the campaign finance law at the heart of the case. Merchan permitted prosecutors to elicit sexually graphic testimony from Stormy Daniels, the porn star who received the hush money payment in question, and dismissed the Trump team’s requests for a mistrial over the irrelevant testimony.
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That Cannon has not similarly complied with Smith’s demands that the case proceed to trial before November has made her a target of prominent lawyers.
Ty Cobb, a former Trump White House lawyer turned Trump critic, called Cannon a “petty, partisan prima donna” and accused her of slow-walking the classified documents case to help Trump.
“We’re way beyond the point of characterizing her merely as inexperienced,” Cobb said during an appearance on CNN this week. “The reality is, she is slow, and she’s slow on purpose.”
“The fact that she doesn’t deny most of these motions without a hearing is silly,” Cobb said.
