Norman L. Eisen, Richard W. Painter, and Fred Wertheimer write:

Soon after the news broke that Donald Trump will become the first former president to face federal criminal charges—37 counts that include willful retention of national defense information under the Espionage Act, conspiracy to obstruct justice, concealing documents, and false statements—it was also revealed that Judge Aileen Cannon is scheduled to oversee the case. In our view as experts with more than a century of collective experience in judicial and other ethics questions, that cannot stand. She must recuse herself from the case or, if she refuses, be reassigned by the appropriate judicial oversight authorities.

Her name may be familiar to many. Judge Cannon heard Trump’s challenge to the government’s classified-documents investigation, appointed a special master to review the documents, and temporarily barred the Justice Department from using those records in its investigation. That much-maligned decision was later reversed by a three-judge panel of the U.S. Court of Appeals for the 11^th Circuit consisting of three conservative judges: two Trump appointees and the G.W. Bush–appointed Chief Judge William Pryor. They wrote that her decision violated “clear” law and that her approach “would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations” and “violate bedrock separation-of-powers limitations.”

Now that the same investigation has resulted in an indictment against Trump, Judge Cannon’s prior, fundamentally erroneous approach casts a shadow over the proceedings. Because her earlier handling of this case went well outside the judicial norm and was roundly criticized by the Court of Appeals, reasonable observers of this case could question her impartiality. Federal law has a way to deal with this challenge: Under 28 U.S.C. § 455(a), a judge “shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.” Judge Cannon’s situation clearly fits that test, and she is obligated to recuse herself in Trump’s case.

Recusal is necessary here to avoid serious concerns about Judge Cannon’s impartiality in the public eye. The judicial recusal rule is about preserving the public’s confidence in the judicial system; it does not require a showing of actual bias. Rather, as the Supreme Court has explained, it simply asks whether “an objective observer” in the public “would have questioned [the judge’s] impartiality.” That is clearly the case with Judge Cannon. It is irrelevant whether a judge subjectively believes herself to be impartial. Because the statute aims at ensuring both justice and “the appearance of justice,” a federal judge must recuse if facts connected to the judge’s actions in the case would cause an objective observer to doubt the fairness of the proceedings. [Continue reading…]