Sen. Sheldon Whitehouse (D-R.I.) on Sunday said he hopes the judge presiding over the Justice Department’s case against Donald Trump over his alleged mishandling of classified documents will operate independently instead of acting like “a Trump advocate in a robe.”
U.S. District Judge Aileen Cannon issued a ruling favorable to Trump in the earlier stages of the investigation that was deemed highly controversial and led to calls for her to recuse herself after she was randomly assigned to the case.
“As we all know, her first intervention in the case was very badly smacked down by the 11th Circuit, a conservative circuit, that not only overruled her but schooled her,” Whitehouse, a member of the Senate Judiciary Committee, told ABC’s “This Week.” “And as a new judge, I’m not sure how often you want to do that.”
“So, we will find out whether she goes back to regular normal judging or continues to be a Trump advocate in a robe,” he added.
Cannon, who was appointed to the bench by Trump in 2020, ruled that a special master selected by her would have to review the classified files recovered from last August’s FBI search of the former president’s Mar-a-Lago estate before DOJ investigators could use the documents. She claimed Trump faced “reputational harm” of a “decidedly different order of magnitude” than an ordinary person subjected to a similar search.
An appeals court overturned her decision.
“The law is clear,” the three-judge panel said. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
Many Democrats have argued the episode damaged Cannon’s credibility.
“I don’t have confidence in her abilities to be fair, or to be seen as fair,” said Eric Holder, who served as attorney general in Barack Obama’s White House.
Whitehouse shared Holder’s concern, but said “the only good news about that is that her decisions can’t kill off this case, until after a jury is empaneled and then jeopardy has attached.”
“There’s going to be a lot of proceedings beforehand for special counsel Jack Smith to test her behavior, to see how she’s conducting herself and have time to move for her recusal if she’s not providing proper rulings,” he said.
“I suspect there’s a pretty good chance that she will just decide this is a good time in her career for her to act like a real judge,” he continued.
Cannon has signaled she plans to stay on the case. Last week, she issued her first order since Trump’s arraignment in Miami, asking “all attorneys of record and forthcoming attorneys of record” to get expedited security clearances and notify her of compliance by Tuesday.
The order underscored the sensitive nature of documents that are central to the prosecution’s Espionage Act charges against the former president.
Trump has pleaded not guilty to all 37 charges he is facing in the indictment, including willful retention of national defense information, conspiracy to obstruct justice and making false statements.