It rests heavily on the idea that conservative or Republican-appointed judges should be subject to greater skepticism.
Donald Trump is surely happy, as Jim Geraghty notes, to have drawn Judge Aileen Cannon to oversee the Mar-a-Lago boxes case. Judge Cannon was appointed to the bench by Trump, and she previously ruled in his favor in a dispute over the boxes of documents seized by the FBI when it searched Mar-a-Lago last summer. Trump wins so few cases in court that he must be glad to have a judge who is at least willing to give his arguments a hearing.
Andy McCarthy delved into Judge Cannon’s rulings at the time, and their subsequent reversal by the Eleventh Circuit, in a series of posts including here, here, here, here, and here. The short summary: Trump filed a civil petition before Judge Cannon on the theory that some of the documents seized by the FBI were (1) covered by executive privilege and/or (2) Trump’s personal property. The Justice Department argued that it was reviewing the documents to remove from its investigation anything that was attorney–client privileged, but it also argued that executive privilege didn’t apply because Trump was no longer the president, and that government records weren’t Trump’s personal property. Judge Cannon agreed with Trump that executive privilege could apply to a former president — an arguable but aggressive position — and appointed a retired federal judge to serve as “special master” to review and remove from the purview of the FBI any documents that were privileged. There were some other legal issues in the case, and Cannon engaged in a certain amount of micromanagement of the special master. Andy aptly described her rulings as “extraordinarily favorable to Trump,” and the Eleventh Circuit agreed, ultimately concluding that Judge Cannon had no jurisdiction to appoint a special master. On the whole, the proceeding did not go well for her reputation.
Progressives and liberals, as is their customary practice, are demanding that Cannon recuse herself from the boxes case. NYU law school ethics professor emeritus Stephen Gillers, Harvard constitutional law professor Laurence Tribe, and liberal ethics gadflies Norman Eisen, Richard Painter, and Fred Wertheimer are among those calling for recusal, echoed by Democratic politicians such as Richard Blumenthal. While Cannon was appointed by Trump, even the critics don’t seriously argue that she should recuse for that reason. As I have previously explained, neither Bill Clinton’s nor Richard Nixon’s judicial nominees recused themselves from civil or criminal cases personally targeting the man who appointed them to the job.
The theory, instead, is that Judge Cannon showed partiality towards Trump in her prior rulings, and that this would create the appearance of partiality in this case. Gillers, for example, argues that “given the importance of this case, perhaps the most important criminal trial in the history of the United States—certainly the most watched—and in light of what Judge Cannon did in the search-and-seizure case last year, I think she must step aside,” and if she doesn’t, the Eleventh Circuit should publicly declare that “we don’t think we can ask the public to accept her rulings.” He continues:
She treated Trump as special, or, to put it another way, she was partial to Trump as a former President, which should not have any influence on the way this trial is conducted. I’m concerned that the partiality she expressed in her decisions last year creates a reasonable perception in the mind of a fair-minded person that she is not impartial—which is the test. . . . The fact that a judge’s impartiality might reasonably be questioned doesn’t mean that the judge is partial. The public may simply not trust the impartiality of the judge. Because public trust in the work of the court is a value as important as the work itself, the rule says that the judge should not sit when we can’t fairly ask the public to trust what the judge does. (Emphasis added)
Tribe, going immediately into conspiracy-theory mode, is skeptical of Cannon’s random selection under the standard procedures of the Southern District of Florida (notwithstanding that she is the most junior judge in the district and in no position to pick her cases), and he claims that “it will be difficult to convince Americans that the appointment was the result of ‘unadulterated coincidence.'” Eisen et al. argue that “Judge Cannon’s other statements and actions in the prior proceedings made clear her view that Trump is entitled to differential treatment than any other criminal defendant.” They continue, “She wrote that ‘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’” (emphasis added). They conclude that “members of the public will harbor serious concerns about the fairness of the proceedings.”
There are a couple of problems with this line of reasoning. To start with, it is worth noticing that left-leaning commentators invariably start with the idea that the standard for an appearance of impartiality is whether progressives, liberals, and partisan Democrats criticize the judge. Thus, there is a long and recent history of fairly egregious examples of left-leaning and Democrat-appointed judges refusing to recuse (or even stubbornly insisting, when recusing, that they have no issues of perceived partiality), and these commentators are almost invariably silent or approving of those decisions. The actual standard for an appearance of impartiality should relate to an objective observer, and that standard is supposed to apply to how a person who knows the facts would analyze the situation. It is not a measurement of how much criticism the judge’s ideological opponents have been able to organize. As I have explained in the context of Supreme Court recusal fights:
As the Court observed in Sao Paulo St., Federative Rep., Brazil v. Am. Tobacco (2002), what matters is what “a reasonable person, knowing all the circumstances” would consider an appearance of conflict. In Sao Paulo, a judge’s name had erroneously been listed on an amicus brief in a prior case; the Court held that, for purposes of recusal, the judge would not be treated as having actually filed the amicus brief, even though he appeared to have filed it, because the listing of his name was a mistake.
Thus, a justice does not have to recuse because someone could speculate that facts might exist that create a conflict, and a justice does not have to recuse because an observer who was misinformed about the facts would think the justice had a conflict — not even if the observer is under a reasonable misimpression. Only the actual facts matter.
Both Chief Justice William Rehnquist, in U.S. v. Microsoft (2000), and Justice Antonin Scalia, in Cheney v. United States District Court for the District of Columbia (2004), emphasized, as Scalia put it, that “a blast of largely inaccurate and uninformed opinion” by inaccurate media accounts “cannot determine the recusal question. It is well established that the recusal inquiry must be ‘made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.’” (Emphasis Scalia’s, quoting Rehnquist).
The reality here, as both Gillers and the Eisen group acknowledge, is that Judge Cannon’s rulings were all premised upon her view that Trump had particular interests in asserting legal privileges and avoiding harm from the invasion of those privileges because he was a former president. I agree with Andy and the Eleventh Circuit that she was wrong on this score, but her position was not outside the realm of arguable legal stances, and she did not argue that Trump was somehow entitled to more partiality than any other former president. In fact, the current indictment is full of arguments about what Trump’s rights and responsibilities were as president and how those changed when he left office. He’s not an ordinary criminal defendant, this is not an ordinary criminal case, and it would be silly to expect the judge to pretend that Trump was some random dude who happened to have boxes of presidential papers in his house. But there’s also no reason to think that Judge Cannon will treat the legal questions in the prior proceeding as if they have not been settled by the Eleventh Circuit. If she did that, then there would be a powerful argument for recusal, because a judge who openly defies the appeals court is plainly not impartial. Nor is this a situation comparable to that of Chief Judge Mark Walker in the Disney v. DeSantis case, who had not only ruled with purple prose against DeSantis in a number of different cases — with a dreadful track record of Eleventh Circuit reversals — but had also made comments on the Disney dispute with DeSantis in unrelated lawsuits, thus raising the specter that he had prejudged the case.
As opposed to the usual run of demands for Supreme Court recusals — for which the bar is higher because Supreme Court justices can’t be replaced as easily as district judges can — I don’t think the calls for recusal here are entirely frivolous. Appeals courts do sometimes conclude that a series of legally bad and reversed rulings call for a new judge to be appointed. But the argument for recusal in this case rests heavily on the idea that conservative or Republican-appointed judges should be subject to greater skepticism, and it conflates the issues presented in the special-master proceeding with the issues that will arise in this criminal case. This is not an especially convincing basis for recusal.