Judge Eileen M. Cannon will preside over a hearing Friday in former President Donald Trump's classified documents case, and will spend the day considering familiar arguments about arcane legal questions in an unconventional way.
This would be the latest example of how her unconventional handling of cases is now becoming the norm.
Over the past few months, Judge Cannon, who was appointed in the final days of President Trump's term, has issued a number of decisions that have been questioned and criticized by legal scholars following the case. Many of her rulings on a wide range of issues have left legal scholars perplexed, and she has often signaled a willingness to give serious consideration to the outlandish issues raised by Trump's lawyers in his defense.
The issue up for consideration Friday in U.S. District Court in Fort Pierce, Florida, is a defense motion to dismiss the case on the grounds that special prosecutor Jack Smith, who brought the case last spring, was improperly funded and appointed.
The defense argues that Smith was not appointed by the president or confirmed by the Senate like other federal employees, and that Attorney General Merrick Garland, who gave him the job, did not have the legal authority to make the appointment alone.
Smith's attorneys counter that the Constitution's Appointments Clause gives agency heads like Garland the power to appoint “minor officials” like special counsel to serve under them.
While the subject matter of the hearings may seem fairly technical, what's most unusual is that they are being held at all.
Dating back to the early 1970s, courts have repeatedly rejected attempts to challenge the legitimacy of independent counsel like Trump's, including the Supreme Court's decision upholding the appointment of Leon Jaworski, one of the special counsels who investigated Watergate, which focused primarily on President Richard Nixon's claims of executive privilege.
The justices also rejected efforts to quash the investigations of special counsel Robert Mueller, who investigated ties between Russia and Trump's 2016 campaign, and special counsel David C. Weiss, who has brought two criminal charges against President Joe Biden's son, Hunter Biden.
But despite this record, Judge Cannon decided to reconsider the constitutionality of Smith's appointment — not through written argument, but in a full two-day hearing. The hearing will go beyond the usual process of merely arguing and may include, as the judge recently wrote, “the presentation of evidence,” although it remains unclear what evidence the judge means.
In another unusual move, Cannon allowed three lawyers who filed so-called amicus briefs to argue before her for 30 minutes each. These outside parties, known as “amicus,” are typically allowed to make arguments directly to judges in appeals courts such as the Supreme Court, but that is not standard practice in trial courts.
“The fact that Judge Cannon granted Amici's request for oral argument appears to indicate that she is seriously considering the constitutional arguments against the appointment of a special counsel,” said Joel S. Johnson, an associate professor at Pepperdine University's Caruso School of Law.
One of the most striking aspects of Cannon's tenure is that in the Southern District of Florida, where she serves, she has largely ignored the common practice of judges handing routine motions over to the magistrate judge assigned to the case.
Mr. Cannon has not referred any motions to the magistrate judge in the case, Bruce E. Reinhart, who is familiar with the case and approved the search warrant the FBI used two years ago when agents stormed Mr. Trump's Mar-a-Lago estate in Palm Beach, Fla., and removed troves of classified documents central to the case.
Even before Trump was indicted last June on charges of illegally retaining classified documents after he left office and then obstructing repeated efforts by the government to retrieve them, Cannon had taken the extraordinary step of needlessly interfering in the case.
After the FBI searched Mar-a-Lago, she barred federal prosecutors from using evidence collected from Trump's properties until an independent adjudicator sifted through privileged material. That decision was quickly overturned with a stern rebuke from her appeals court.
In recent months, Cannon has continued in similar trends, making some questionable decisions and often procrastinating on them.
For example, Ms. Smith surprised observers of the case in February by agreeing to reveal the names of several government witnesses in documents that Mr. Trump's lawyers planned to submit. Concerned about the safety of the witnesses, Ms. Smith's attorneys asked her to reconsider her decision, and she ultimately agreed.
A month later, the judge issued another puzzling order, asking the defense and prosecutors to send draft jury instructions that appeared to adopt one of Trump's key defenses in the case.
The instruction was odd on its face because questions about jury instructions are typically resolved the night before trial, at which point Cannon had not yet set a trial date.
Even more bizarre, the judge appeared to adopt Trump's defense, urging jurors to acquit the former president or leaving open the possibility of acquitting Trump himself near the end of the trial by ruling that the government hadn't proven its case.
More recently, Judge Cannon held hearings for Trump's co-defendants, Walt Nauta and Carlos de Oliveira, to consider filing so-called “detailed statements” that would detail charges supplementing those laid out in the indictment.
Such documents are rarely given to criminal defendants. Judge Cannon ultimately denied the request, but her decision to hold a court hearing on the issue in the first place was unusual, since other district (or magistrate) judges often decide such minor pretrial issues based solely on court documents. But in this case, Judge Cannon made holding a hearing the standard.
Last month, Judge Cannon issued an order formally canceling the case's May 20 trial date. Judges have broad discretion when it comes to scheduling trials and are not typically required to justify their decisions, but Judge Cannon cited a curious justification for postponing the trial: a 2013 paper titled “National Security Trials: A Judge's Perspective.”
The author was T.S. Ellis III, a respected former jurist and longtime judge in the Eastern District of Virginia. But it was unusual for a judge to cite an informal document as the basis for a ruling, rather than relying solely on legal precedent.
“That's an interesting indication of the effort that goes into crafting these cases,” said Tracy E. George, a professor at Vanderbilt University Law School, “or the lack of effort or care.”