Judge Cannon’s ‘Parallel Legal Universe’ — and Ours

“Sentence first, verdict afterwards” is how the Queen of Hearts puts it in “Alice in Wonderland,” but Her Highness could have been ruminating on the effort to remove Judge Aileen Cannon from the Mar-a-Lago case against President Trump. The latest apparition through the looking glass is an amicus brief to the 11th United States Appeals Circuit from Citizens from Responsibility and Ethics in Washington.That’s the group that sought to disqualify Trump from office under the 14th Amendment — only to be rebuffed by a unanimous United States Supreme Court. It ended CREW’s effort to use the 14th Amendment to brand Trump as an insurrectionist. Even the liberal justices demurred from endorsing such constitutional cowboyism. Now CREW is at it again, asking the 11th Circuit to remove Judge Cannon from the Mar-a-Lago case.We understand that Trump’s foes have long been exasperated by Judge Cannon’s methodical approach and her determination to give the 45th president’s arguments a proper hearing in her court. She has been especially alert to the possibilities of abuse in trying a former president, which has irked the special counsel. Such concerns, though, appear to have animated the Supreme Court’s landmark immunity ruling in his other case, for January 6. What is Wonderlandly is that CREW wants Judge Cannon off the case before the 11th Circuit rules on whether she was correct in finding that Mr. Smith’s appointment by Attorney General Garland violates the Constitution. She found that it does because the attorney general lacked statutory authority and Mr. Smith was not confirmed by the Senate. That ruling came following ventilation of the issue during marathon oral arguments.CREW cites her “extraordinary rulings and sluggish case administration” as fueling “well-founded concerns that she might be biased against the Government’s case.” It predicts that she “will prove unable to put aside the views that led her to take so many dramatic and unusual steps that undermined the prosecution.” The group lauds “reassignment’s power to restore public trust in the fairness and evenhandedness of the judicial system.” Our A.R. Hoffman reports that the precedent of the 11th Circuit provides for a judge to be reassigned if they have “engaged in conduct that gives rise to the appearance of . . . a lack of impartiality in the mind of a reasonable member of the public.” That, though, is different from merely disagreeing with a ruling from the bench — that is what appeals are for, after all. An adverse decision cannot itself be held to be evidence of bias. It could be that Judge Cannon is not out so far a limb as CREW contends. Her position on Mr. Smith’s appointment appears to have been endorsed, in a concurrence to the decision in the immunity case, by Justice Clarence Thomas. The court’s senior justice wrote that “if Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office.”Justice Thomas could be alone in that assessment or he could be a harbinger of a higher skepticism as to the arrangement arrived at by Messrs. Garland and Smith. In any event, Judge Cannon’s decision could make it up to the justices, who could elect to decide it once and for all. If it does, CREW’s strategy of reaching for reassignment will run aground. There is no supervisory authority above the Nine, only the duty to sit and hear cases and controversies like this one.CREW accuses Judge Cannon of plying her trade in a “parallel legal universe,” but it could be that it is the legal left that is diving down the rabbit hole. Disqualification was a dead end, and it is not too difficult to imagine a similar fate for, say, President Biden’s push for a constitutional amendment to abolish presidential immunity. Now, an alternative reality without Judge Cannon is being conjured in the South Florida haze. Curious and curiouser.

Judge Cannon’s ‘Parallel Legal Universe’ — and Ours

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