How Trump ended up with Judge Cannon 

There are 26 U.S. District Judges in the Southern District of Florida eligible to preside over the case of United States of America v. Donald J. Trump. From the standpoint of Special Counsel Jack Smith, the case drew the worst: the Trump-appointed Judge Aileen Cannon. 

Cannon, who has been on the bench less than three years, has thin experience in trying criminal cases. During her time in office, she has tried only four routine criminal cases, adding up to 14 trial days. Moreover, she was the judge in the litigation over the search warrant at Mar-a-Lago, where she was twice rebuked by the 11th Circuit Court of Appeals for decisions displaying undue deference to Trump’s status as a former president.

Court observers may wonder why Smith went to Florida to try his case in the first place — the Sunshine State is Trump’s backyard. Besides the possibility of drawing the dreaded Cannon, Trump won Florida twice easily, and the jury pool might be riddled with Trumpers, election deniers, and MAGA fans. 

Plus, Smith, like a football coach in the fourth quarter, has to manage his clock carefully. If Trump or another Republican wins the election, the case is effectively dead on Inauguration Day. 

Under federal law, the crimes alleged in the devastating 38-count indictment could have been filed in Washington, where it began when Trump took the 197 classified documents from the White House; in Florida, where he stored the documents; or possibly in New Jersey, where he discussed one of the documents with unauthorized persons. 

But while those other districts may have been more favorable from the point of view of judges and juries, Smith was certain to face a venue motion, arguing that the center of gravity of the alleged crime was Florida, where most of the documents were secreted. The government would probably win a venue motion, but the motion practice would eat up time.

Smith weighed the options, and, mindful of the play clock, did not want to waste precious time with venue motions and possible appeals. Under Section 2.01.01 (a) of Internal Operating Procedures of the Florida court, criminal cases are supposed to be assigned by the clerk on a “blind random basis.” So he rolled the dice on Florida, calculating his one in 26 odds of drawing the dreaded Judge Cannon were pretty good. The problem is, as they said in “The Music Man,” he didn’t know the territory. The odds were really as short as three to one against drawing Cannon. 

The catch is that the Southern District of Florida is administratively divided into five divisions: Miami, Fort Lauderdale, Palm Beach, Key West and Fort Pierce. This is supposed to be for the convenience of the parties and their lawyers, and has no other legal significance. 

Cannon is the only judge sitting in Fort Pierce, which is in St. Lucie County, 68 miles north of Palm Beach and 128 miles north of Miami. But, for the purpose of assigning judges, Fort Pierce is treated as part of the neighboring Palm Beach Division. There are three federal district judges in Palm Beach, one of whom is a senior judge. What Smith did not know, or failed sufficiently to appreciate, is that the pool of judges administratively eligible to try the case was not 26 but four. (If you remove from consideration the senior judge, the eligible pool narrows to three.) The grand jury that returned the Trump indictment sat in Miami because the courthouse facilities were more accommodating than those in Palm Beach, but an administrative order deemed the investigation a Palm Beach inquiry.

The case is a challenging one even for an experienced trial judge. There are issues of pre-trial management, setting deadlines for motions, and resolving discovery disputes. Most significant, there is the problem of dealing with the Classified Information Proceedings Act (CIPA), which seeks in criminal trials involving classified documents to strike a delicate balance between the interests of the government in national security and the due process rights of the defendant to see the evidence against him. This would involve obtaining security clearances for the lawyers, the fact witnesses, and possibly experts who might be called to the stand. Trump’s lawyers will doubtless argue that they are entitled to discover and inspect all 197 classified documents the government seized at Mar-a-Lago, not just the 37 that are mentioned in the indictment. The trial judge will have to rule on this. 

Then, there is the critical issue of the trial date. A seasoned trial judge could get the case to trial in November. Trump will argue that the proceeding should be postponed until after the election since, as a candidate for president, he will be too busy to prepare for trial. Cannon will have essentially unreviewable discretion to decide this motion — and discretion as to how long to take to decide it. The New York case, involving the payoff to Stormy Daniels, is set for trial in March 2024. Trump’s lead counsel in New York, Todd Blanche, is also his lead counsel in Florida. He will credibly argue to Judge Cannon that he needs time to prepare for trial in New York. Under Section 213.01 (h) of Internal Operating Procedures of the court, the trial judge is obligated to entertain motions for continuances, scheduling conflicts or notices of proceedings in another court and “grant such relief when requested.”

Trump claims that the prosecution is politically orchestrated by President Joe Biden to interfere with and prevent his election. An experienced judge might give little weight to such claims, perceiving that the public and Trump are entitled to a fair and speedy trial. Someone as callow as Judge Cannon could weigh in on Trump’s side. 

So now the fat is in the fire. Cannon may well turn out to be up to the task and prove to be a fair and impartial judge. But legal experts, such as Professor Laurence Tribe of Harvard Law School, say no good can come of her assignment to the case.  Smith can try to have Cannon recuse herself for bias, but he probably won’t get very far with it; plus, it will eat up time if he appeals to the conservative 11th Circuit. 

But Florida is not the end of the road in the sad story of holding Trump accountable. Atlanta prosecutor Fani Willis has yet to speak on her election interference case in Georgia. An indictment is expected in the coming weeks. 

And there’s more. Smith could also indict Trump in New Jersey. And then, the dénouement, Smith’s January 6 insurrection case. This one would be brought in DC where the crime incontestably occurred. Smith may be saving the best for last. The criminal prosecution of Donald J. Trump will not go away. 

James D. Zirin is a former federal prosecutor in the Southern District of New York.