A criminal case that was once viewed as the most open-and-shut prosecution against former President Donald Trump has been mired in delay, unresolved logistical questions and fringe legal arguments that appear to have hijacked the judge's attention.
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US District Judge Aileen Cannon, who was appointed to the federal bench by Trump in 2020, has drawn out the case with an unusual, eyebrow-raising approach in her nearly 10-month oversight of the case, delaying rulings on what experts say are routine legal questions that must be resolved before the case can go to trial.
The longer it takes for Cannon to decide these issues, the more likely a trial would need to wait until after the November presidential election.
Prosecutors’ impatience was evident in fiery filings late Tuesday night, where special counsel Jack Smith said Cannon had asked for briefs that were premised on a “fundamentally flawed” understanding of the case that had “no basis in law or fact.”
Smith's team previewed their desire to potentially appeal the dispute around how Cannon apparently views the case – which would further slowdown the timeline.
Regardless of whether they go that route, Smith has almost no options for speeding her up, as judges have nearly carte blanche authority to manage their dockets as they see fit.
“If the judge wants to drag it out, she can kind of drag it out,” said Alan Rozenshtein, a University of Minnesota Law School professor and former Justice Department attorney. “We invest enormous discretion in trial judges to run their cases, for better or for worse, and this case is – in that sense – like any other case.”
Frustration with how slowly a case is plodding along is nothing new in the criminal justice system, and slow-moving pretrial proceedings over the classified documents at the heart of the case were always expected. But Cannon's critics view the pace of the Trump prosecution with added suspicion because of how she handled a separate, 2022 lawsuit Trump brought attacking the FBI's documents investigation.
In that lawsuit, Cannon granted an extraordinary Trump request for a third-party review of the FBI's 2022 search of his Mar-a-Lago resort for the classified documents. A conservative appeals court repeatedly reversed her rulings in the lawsuit, scolding her for giving Trump special treatment no other private citizen would receive, and shut down the review.
Now, critics accuse Cannon of – purposely or not – playing into Trump's strategy of delaying the trial until after the election. If Trump wins the White House, he will presumably make the case go away.
Cannon’s rulings against her in the 2022 lawsuit were so “outside the bounds” that “people rightly became suspicious of her motives,” said Barbara McQuade, a former US attorney in the Obama administration.
“It is equally plausible,” McQuade said, while stressing she does not know what's going on behind the scenes, “that she is very inexperienced and unsure of herself and is going as slowly as possible in the hopes that she won't be first ” among the Trump criminal cases to go to trial.
Ty Cobb, a former lawyer for the Trump White House, told CNN's Erin Burnett Wednesday he also thinks the delays have cast an air of suspicion around Cannon: “I think the evidence is just too overwhelming.”
“Yes, she may be incompetent, but at this stage of the game, you know, her incompetence is so gross that I think it clearly creates the perception… of partiality and her attempt to put her thumb on the scale,” he said on “OutFront.”