Retired federal judge says Cannon appears to show 'favoritism' towards Trump
SCOTT DETROW, HOST:
From NPR, it's TRUMP'S TRIALS, I'm Scott Detrow.
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UNIDENTIFIED GROUP: (Chanting) We love Trump.
DONALD TRUMP: This is a persecution.
UNIDENTIFIED PERSON #1: He actually just stormed out of the court room.
UNIDENTIFIED PERSON #2: Innocent until proven guilty in a court of law.
DETROW: This week, former President Donald Trump, just like any other American recently convicted of a crime, met with a probation officer. The interview will help inform Trump's sentencing next month, which will come just days before the Republican convention. But while we were all focused on this spring's New York hush money trial, which led to that conviction, things have slowly been chugging along down in Florida. The federal classified documents case there is delayed indefinitely. Judge Aileen Cannon has left many key decisions unresolved, leading to increased questions about the way she is handling the case. I spoke with a retired federal judge on what she makes of Cannon's approach.
SHIRA SCHEINDLIN: Think she is in experience, and I think it makes her insecure in her rulings.
DETROW: Stick around. We will hear more from retired federal judge Shira Scheindlin and get the latest from NPR's Carrie Johnson on some key upcoming hearings in that classified documents case. That's when we come back.
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DETROW: We are back with NPR justice correspondent Carrie Johnson. Carrie, good to see you again.
CARRIE JOHNSON, BYLINE: You too, Scott.
DETROW: So we have spent the last few months so focused on the New York criminal case. What have we missed down in Florida?
JOHNSON: Well, maybe the - one of the biggest things that's been happening down there to date is a tug-of-war over whether Trump should be restricted from making certain kind of statements, Scott. The special counsel, Jack Smith, has pointed to some fundraising pitches and social media posts by the former president, in which Trump claimed Biden's DOJ was authorized to shoot me and that Joe Biden was locked and loaded and ready to take out me and put my family in danger. Now, that sounds awful.
DETROW: Yeah. And we've fact-checked this before, but it's worth doing so. Every time we talk about these claims, what is the broader context of how that raid actually happened?
JOHNSON: Well, the FBI took pains to make sure that Donald Trump was actually not at Mar-a-Lago during the search. It coordinated in advance with the secret service. And FBI agents who conducted that court-authorized search weren't even wearing, you know, full battle gear. They had, like, khaki pants on. So it wasn't exactly a storming of Mar-a-Lago by any means. And, you know, this kind of language, the special counsel says, is really dangerous in this environment.
DETROW: What happened with that request?
JOHNSON: Well, Judge Cannon responded by criticizing the prosecutors for not doing enough to consult with Trump's legal team before they filed that motion, kind of a snippy response from Judge Cannon. And right now, the issue is live, again, because prosecutors reiterated their request for some restrictions on Trump's speech.
DETROW: And we are seeing Trump do this over and over again in different ways, basically trying to tear down the entire judicial system, arguing that it is all a political trap being orchestrated to keep him from becoming president again. We are seeing all sorts of different critiques, much of them not based in the world of facts. Are these happening in a vacuum or are people responding to them?
JOHNSON: Not at all. Donald Trump is running against Joe Biden, but he's also running against the justice system, and not just the U.S. Justice Department, which is run by Attorney General Merrick Garland, but also the justice systems and other places that are prosecuting Donald Trump. He's had terrible things to say about Fulton County District Attorney Fani Willis and district attorney in Manhattan, Alvin Bragg. And, you know, what prosecutors keep saying to these judges is that there is a pattern here where Trump makes certain kinds of statements and Trump's supporters act on them. And we had new evidence of that. Just in the last couple of days, a man in Texas has been criminally charged with making a threat against a specific FBI agent who was involved in the investigation of Hunter Biden, Joe Biden's son, basically saying guns will come out. And this person in Texas has been arrested, he's going to be prosecuted. But it's just evidence of the sort that Jack Smith and Attorney General Merrick Garland have been trying to raise alarm about for some time now, that these kinds of statements can be really dangerous and cause people to act in uncertain ways.
DETROW: Another thing Trump's reportedly said in the last few days, allegedly saying during a closed-door meeting with Republican senators on Capitol Hill calling the Justice Department dirty bastards. So that rhetoric is continuing. That's one of the many questions that now is being litigated in front of Cannon. But I think the big-picture theme seems to be question after question after question coming Cannon's way and Cannon not really moving the ball forward on a lot of these things.
JOHNSON: That's exactly right. I did a quick check before coming into the studio, and there are a number of issues before Judge Cannon that have been fully briefed for months that she has not yet ruled on, including motion to compel the government to turn over all kinds of information from the intelligence community, which Trump claims was part of his prosecution, motion to dismiss for presidential immunity, of course, that issue in part is before the Supreme Court right now, and Trump's motion to dismiss based on selective and vindictive prosecution, which the Justice Department is fully resisting. So the judge has not made basic decisions on some of these motions, and then she's decided to have hearings - multi-day hearings in certain cases later this month - on other issues that some judges would have just handled on paper and rejected out of hand, it seems like.
DETROW: We're going to talk a little bit more about some of those upcoming hearings in a few minutes. But Carrie, we have had this conversation so many times. There are so many growing questions about Judge Cannon's handling of this case. I did an interview, actually, with somebody who spent a lot of time in her shoes, retired federal judge Shira Scheindlin, who spent more than two decades on the bench in New York. Here's that conversation.
Well, I'll start pretty broadly. What is the main thing that has stood out to you about how Judge Cannon has handled this case as you've observed?
SCHEINDLIN: The main thing that stood out to me is how she has constantly caused delay in the case instead of moving it forward. She's done that in, I would say, two ways. One is her inability to rule in an efficient manner. She holds on to motions. She keeps them pending. She can't seem to decide things. She seems to be on the fence and wants to hear further argument, have more hearings. And most experienced judges, which, of course, I considered myself after the 27 years you mentioned, try to know which motions really require further consideration argument and which you know instinctively, you could say, frankly, one word - denied, and you can rule from the bench. I would try to separate out those types of motions, the ones that I could decide quickly and the ones that were worth holding and considering further and doing research and hearing argument. That's one thing that stands out to me.
The second thing that stands out to me is what appears to me to be her dislike of the government and her favoritism toward the defense. I'm not saying that that's going to, in the end, determine how she rules on everything, but she seems to have a visceral dislike of Jack Smith and his team. She's constantly criticizing them. She's constantly being sharp and sarcastic with them. And she almost never treats the defense that way. So she's kind of on - she's on them, I would say. She - in writing and orally from the bench, she's always saying sort of negative things, and you feel it. You feel it in the aura of how she's handled the case.
DETROW: I want to ask about the decision making, the first thing you talked about, because a lot has been said in this trial that's about classified documents about the fact that certainly classified documents cases are going to take longer than other types of cases 'cause there's big, weighted questions that have to be sorted through in terms of the procedure and how things are going to be introduced in the eventual trial. You're saying it's beyond that scope. It's just a lot of basic questions coming her way that she has not answered on that you think is striking.
SCHEINDLIN: I am saying that. When you have a case that involves highly classified documents, it is more complex to review those documents. They have to be done in a safe space - it's called a SCIF. So it's complicated. I understand that. But that's not a full defense of how long it's taking her to move this case forward. While it is complicated, it's been done many times. She's just been inefficient.
DETROW: All know that President Trump's legal strategy involves delaying this case with the hope that, you know, if he's elected president again, he would be able to end the case against him. From everything you've seen, do you have a gut feeling as to whether or not this is an experience issue with Judge Cannon or whether or not this is a finger on the scale to try to help those delays?
SCHEINDLIN: I'm not so sure that those are two different choices. They may be combined in her mind. I think she is inexperienced, and I think it makes her insecure in her rulings. She's tentative. She doesn't want to rule, as I said before, efficiently and quickly. But the motivation may be mixed in with intentionally delaying enough to make sure this doesn't go before the election. I'm not saying there's a bad motive for that. There have been some commentators who say, you know, if he's president, he'll elevate her to a higher court and all that. I don't see that. That would look like a quid pro quo, it'd look like a bribe. But maybe she just says this can wait till after the election. I don't want this to affect the election, so I'm going to take my time. It may be intentional. I don't have a sense of that, but I do have a sense that she's inexperienced and insecure.
DETROW: What do you think the appropriate way is to treat a criminal defendant in your court room who's a former president of the United States and is running for president again? Do you think a judge in this position should be thinking about the fact that there is an election and do the American people deserve a verdict before that election or is that just something that's not material in a criminal court room to you?
SCHEINDLIN: I don't think it's material to me. I think you do your job. So when I think of Judge Merchan, I don't think he was trying to rush it to get it done before the election so the electorate would know whether this guy is a felon or not a felon. And I'm not sure she's intentionally going slow to avoid the public knowing. It's just that one knows how to run a criminal trial because he's experienced and a good, organized judge, and one seems to not. But that said, you never know what's in the back of somebody's mind. You know, I'm not a psychologist on your show, I'm a former judge.
DETROW: Yes.
SCHEINDLIN: So it's a little hard to know if there's not a mixed motive always. I think it's more a matter of knowing how to run a complex trial.
DETROW: I want to ask you, while we had you, a broader question. I'm wondered how - I'm wondering how worried you are at this moment about the rule of law in this country and the different ways it's being attacked from all directions. You have a former president saying it's a rig system, it's a political system that people are trying to charge him with crimes to prevent him from being president. You have a lot of liberal-leaning voters in this country who are deeply cynical about the U.S. Supreme Court. You have a president's son just convicted in another federal courthouse and all sorts of Republican criticism there. I feel like every direction you're coming from, there are serious, real critiques about the rule of law in this country, right or wrong, and I'm wondering how worried you are in this country that's based on the rule of law about all of these partisan criticisms at this moment.
SCHEINDLIN: Well, I think the partisan criticism has affected the public's perception of the validity of the court system. And you could call that the rule of law. I think they've lost a lot of faith in this U.S. Supreme Court because of what we - has been disclosed about Justice Alito and Justice Thomas.
DETROW: Sure.
SCHEINDLIN: But that sad, the system is actually worked quite well in the sense of the trial on the hush money case and in the Hunter Biden case. I might not have agreed with either outcome, but the jury system worked and made a decision, and everybody is treated the same. And that's a good thing. So whether your last name is Biden or your last name is Trump.
DETROW: So that was my conversation with retired federal judge Shira Scheindlin. She was nominated by President Clinton. She served more than two decades on the bench in New York. And Carrie Johnson, you're still with us. Let's look ahead to next week. Cannon has scheduled a pretrial hearing over a motion from the Trump team that alleges that Smith's appointment as a special counsel is invalid. Tell us about what's going on with this upcoming hearing, how it fits into the case, how it fits into these trend lines of delay.
JOHNSON: Yeah. Scott, this is a new issue. In fact, there were challenges to the legal authority of special counsel Robert Mueller not so long ago, who was investigating Russian interference in the 2016 election.
DETROW: He of the Liberal votive candles.
JOHNSON: Liberal votive candles and he of the registered Republican variety, as well. But that didn't go anywhere. In fact, there are two appeals courts that are on record as saying the special counsel is a constitutional tool that the Justice Department can use in particularly sensitive cases where there may be conflicts of interest. And so lawyers I've talked to don't understand why Judge Cannon has ordered a multiple-day hearing on these issues, why she's allowed friends of the court to argue, including people with ties to the Federalist Society, former Reagan Attorney General Ed Meese and others are going to be granted argument time before Judge Cannon on these issues. When other courts have basically dismissed them out of hand, and moreover, Scott, I don't remember the Federalist Society camp weighing in on constitutional challenges to special counsel issues when we were talking about Hunter Biden and the special counsel. It only came up in this Trump matter involving Jack Smith.
DETROW: NPR's justice correspondent Carrie Johnson, thanks for catching us up on all that.
JOHNSON: My pleasure.
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DETROW: We'll be back next week with another episode of TRUMP'S TRIALS. Thanks to our supporters who hear the show sponsor-free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page in Apple Podcasts. This show is produced by Tyler Bartlam and edited by Adam Raney, Krishnadev Calamur and Steve Drummond. Our executive producers are Beth Donovan and Sami Yenigun. Eric Marrapodi is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to TRUMP'S TRIALS from NPR.
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