Judge Cannon is assigned to Trump’s Florida assassination case, in which Biden-Harris DOJ has decided it doesn’t need a special counsel.
The assignment of criminal cases to federal judges in the Southern District of Florida (SDFla) is random, as it is throughout the federal system. It’s a coincidence, then, that the criminal case involving an attempt to assassinate former President Trump at his South Florida golf course has been assigned to Judge Aileen Cannon, the same Trump-appointee who presided over (and eventually dismissed) the criminal case involving Trump’s hoarding of classified documents at his South Florida resort club (and who handled litigation over the search warrant in that case). But it’s not that unlikely a coincidence: There are significantly fewer full-time judges in the SDFla than there are, for example, in the Southern District of New York or the Central District of Florida.
That said, Cannon’s assignment may cause the Biden-Harris Justice Department some agita. It highlights the inconsistency of the DOJ’s positions regarding its participation in cases involving Trump — positions that have been inconsistent because they have been infected by politics, notwithstanding Attorney General Merrick Garland’s precious insistence that he and his Department don’t play such games.
In November 2022, Garland announced his decision to appoint Jack Smith as a special counsel. There was no legitimate reason for this appointment. Special counsels are supposed to be reserved for situations in which there is a conflict of interest that prevents the Justice Department from investigating in the normal course. There was no such conflict between the Biden-Harris DOJ and Trump, a prominent Republican whom the DOJ had been investigating for nearly two years without any special-counsel appointment.
By contrast, the Biden-Harris DOJ was profoundly conflicted in conducting the investigation of Hunter Biden, the president’s son whose criminal conduct implicated the president — to whom Garland and the DOJ answer. Yet Garland stubbornly refused to appoint a special counsel until after the DOJ first tried to disappear the investigation with no charges at all and, when that became politically untenable, tried unsuccessfully to bang a sweetheart plea deal past a federal judge.
In appointing Smith, Garland rationalized that Trump’s announcement of his 2024 candidacy — running against President Biden, and now Vice President Harris — created a conflict that required the DOJ to insulate itself from direct participation in a criminal case involving Trump. This was political theater: Knowing Trump would claim that President Biden was exploiting his control over the Justice Department to sideline the main obstacle to his reelection, the appointment was designed to create the fiction that Biden and the Biden-Harris DOJ had nothing to do with the Trump prosecution, which was in the supposedly independent hands of Smith.
This was hilarious given that Smith exercised power that belongs exclusively to Biden, answered directly to Garland, and recruited his staff out of the Biden-Harris DOJ (many of the same lawyers who had been investigating Trump all along). Moreover, when Smith’s appointment was challenged on constitutional grounds — because (as explained here and here) he was not qualified to exercise such high-level independent authority under the Constitution’s Appointments Clause — Smith filed a brief insisting that he was closely supervised by Garland . . . an inconvenient development since Garland had testified to Congress that he did not interfere with Smith.
Because Smith did not qualify as an officer of the United States — because he neither was appointed by the president and confirmed by the Senate, nor occupied an office created by Congress (his protestations to the contrary notwithstanding) — Judge Cannon concluded that his appointment was constitutionally infirm. Nevertheless, it was not her objective to dismiss the documents indictment against Trump; rather, she asked the Justice Department to propose curative measures that would avoid that outcome.
There was an easy one that could have had the case back up and running in five minutes: All Garland needed to do was assign Smith and his staff to work under the supervision of the SDFla’s Biden-appointed, Senate-confirmed U.S. attorney — i.e., a qualified officer of the United States, who runs the same office that is now prosecuting Ryan Routh, the accused would-be assassin of Trump.
In their arrogance, Garland and Smith refused to do that, daring Cannon to dismiss the indictment. Since she lacked authority to order the Biden-Harris DOJ to assign the case to the supervision of a qualified officer of the United States, Cannon dismissed the indictment. Smith and DOJ are appealing — an appeal I believe they are likely to lose in the Eleventh Circuit.
Now, Routh is credibly accused of attempting to murder Trump (among other charges). Has the Biden-Harris Justice Department appointed a special counsel? Has Garland postured, yet again, that because of Trump’s status as the candidate opposing Harris, the Biden-Harris DOJ must not be seen as controlling a case in which Trump is a key figure, lest Biden, Harris, Garland, and the DOJ be perceived as trying to influence the outcome of the election?
The questions are rhetorical, of course. The Biden-Harris DOJ has not only grabbed the case with both hands; it has invoked a statute (§351) that required the state of Florida to suspend its investigation until the federal proceedings are concluded — just to make certain that the Biden-Harris DOJ, not Florida, would dictate the course of prosecutions of Trump’s would-be assassin.
To be clear, there is no good reason why the Biden-Harris DOJ should recuse itself from the prosecution of Routh. Nor is there any good reason why the Biden-Harris DOJ shouldn’t have invoked §351 — a statute under which Routh, if convicted, is likely to be sentenced to life-imprisonment, which would be an appropriate outcome for so heinous an offense.
The point is that there was no good reason why the Biden-Harris DOJ needed to appoint a special counsel to prosecute a case in which Trump was the defendant, rather than the victim. There was nothing in Trump’s candidacy that required the Biden-Harris DOJ to recuse — especially when one compares the “conflict” Garland conjured up to rationalize Smith’s appointment to the actual, neon-blinking conflict Garland ignored for years in the Hunter Biden investigation.
And there is no good reason why, today, Garland could not reassign Smith and his staff to work under the supervision of the Biden-appointed, Senate-confirmed SDFla U.S. attorney in order to revive the documents case.
I don’t know whether Judge Cannon will be inclined to comment on the coincidence of her assignment to Trump cases and the anomaly in the Biden-Harris DOJ’s handling of them, but I imagine these things have crossed her mind.