Was Judge Cannon the Biggest Loser in 11th Circuit’s Ruling Against Trump?

National Law Journal
9 Min Read

The federal appellate opinion ending the special master review of records seized from Donald Trump’s Mar-a-Lago home wasn’t just a defeat for the former president—it reads as a rebuke of the federal trial judge who issued the initial order.

“It’s like a civil procedure professor giving a student a failing grade,” Peter M. Shane, a law professor at New York University, said of the opinion from the U.S. Court of Appeals for the Eleventh Circuit. “If an appellate court tells a lower court that we can only accept your judgment by betraying one of the nation’s founding principles, that’s a pretty strong rebuke.”

A panel of three Republican-appointed judges on Thursday used 21 pages to dismantle U.S. District Judge Aileen Cannon’s rationale for backing Trump. The former president went to court to block federal investigators from reviewing documents seized from his home as they probe allegations he mishandled classified materials taken from the White House. David Sklansky, a Stanford Law School professor, called the circuit opinion a “thorough repudiation” of Cannon’s reasoning.

U.S. District Judge Aileen M. Cannon of the Southern District of Florida. Courtesy photo

“The appellate court said what most lawyers who read [Cannon’s] decision said all along, which is that it didn’t make sense because the relief Trump was seeking was so extraordinary and unjustified,” Sklansky said.

How did Cannon, who sits in the Southern District of Florida, get it so wrong? Duke University School of Law professor Samuel Buell said Cannon was too taken by the idea that judicial intervention in the investigation was warranted because the seized property belongs to a former president, and that made the case unique.

The Eleventh Circuit shot down Cannon’s framing, saying that writing a new rule allowing former presidents to block government investigations following a lawful search where probable cause was shown would “be a radical reordering of our case law” and “violate bedrock separation-of-powers limitations.”

“She was wrong to fixate on that aspect of this case and think it somehow should drive the court into a totally novel and new direction,” Buell said.

Cannon did not immediately respond to a request for comment.

In her ruling, Cannon held that the district court had jurisdiction to intervene in the investigation before charges have even been filed, but the Eleventh Circuit said courts only have that authority in very narrow circumstances not present in Trump’s case, given separation of powers concerns.

“Maybe this is a judge who has too expansive of a view of her authority,” Buell said. “If that were the real nature of equitable jurisdiction, then single federal judges would have potentially enormous powers that they could justify under that claim.”

Trump appointed Cannon, a Federalist Society member, to the bench in 2020. Before becoming a judge, Cannon worked as an associate at Gibson, Dunn & Crutcher and was an assistant U.S. attorney in the Southern District of Florida. She clerked for Eighth Circuit Judge Steven Colloton after graduating from the University of Michigan Law School in 2007.

Shane speculated that it’s possible Cannon has aspirations for elevation to a higher court in the future and her granting Trump’s request is a way for her to stand out from contenders. Court watchers, and even a judge, have criticized a recent trend of jurists using opinions to showboat for potential promotions, or the use of fiery language to appeal to the Twitter crowd.

But if that were her goal, Shane said her ruling likely won’t help her. While it could ingratiate Cannon with the former president, the Republican party as an institution may not see it as a positive part on her record, especially if Trump fails in his 2024 bid for the presidency.

“There are sometimes judges whose strong paper qualifications seem so at odds with the low quality of their opinions that one does wonder if they’re just trying to ingratiate themselves with a future president with appointing authority. I don’t know that about Judge Cannon, but I will say, if that was even remotely on her mind, this won’t help,” he said. “If there were a Florida seat open on the Eleventh Circuit, why would Florida senators want to advance her candidacy?”

Cannon turned to a 1975 case, Richey v. Smith, that laid out a four-factor test for when courts have jurisdiction to intervene in a criminal investigation. She found Trump failed to meet the first prong—which required showing the government displayed a “callous disregard” for constitutional rights in conducting the search. But Cannon ruled for Trump under the three other factors, finding he had a need for the records, would be irreparably harmed if they weren’t returned, and remedies didn’t exist elsewhere.

The Eleventh Circuit said while Trump’s arguments fail under all four factors, Cannon should have dismissed the case after finding no evidence of “callous disregard” for Trump’s rights. Shane said the panel was sending a message to both Cannon and the Supreme Court in its detailed rejection of her entire legal analysis.

“Going over each of the four factors is, to the extent the audience may be the Supreme Court, a way of saying, ‘Even if you think we’re being a little hard on Judge Cannon on the indispensable factor number one … we think she’s wrong about the other three factors.’ I think the message is both a message to the lower court, but it’s also a message to the higher court,” he said.

Shane said the court’s rebuke of Cannon is made more remarkable by the fact that two of the judges, Judges Andrew Brasher and Britt Grant, were appointed by Trump, and the third, Chief Judge William Pryor, by George W. Bush.

Cannon’s ruling could be the most high-profile one of her career and the reversal will be part of her judicial legacy, Buell said.

“This might end up being the most high-profile case she has in her career, so it’s not going away. But getting reversed on appeal doesn’t mean you did something illegal or bad, it means you were wrong. In this case, this opinion has her having been very wrong,” Buell said. “Some trial judges say, ‘I do what I think is right and if the appellate court wants to reverse me, that’s their authority, and I move on to the next case.’ She might not be bothered by it.”

Cannon’s involvement in the dispute between Trump and the DOJ has ended since the Eleventh Circuit directed the case be dismissed, Sklanksy said.

“The court of appeals said the mistake she made was thinking she had any jurisdiction at all,” Sklanksy said. “It’s not the end of the criminal investigation, but it’s the end of this particular attempt to use the legal system to shut down the criminal investigation.”