RSS’s petition to impeach Mar-a-Lago judge will go nowhere

Calls are growing to impeach Judge Aileen Cannon, Newsweek reported on Friday, December 2, 2022 (read story here). called her “corrupt,” argued she “never should have taken this case,” and accused her of engaging in obstruction of justice. (Read their complaint and see their petition here).

Cannon, who has decent academic and experiential credentials as federal judges go, and was rated “Qualified” by the American Bar Association, was nominated by Trump in May 2020, confirmed by the Senate a few days after Biden emerged as the 2020 election winner, and joined the federal bench in November 2020.

After the FBI raided Mar-a-Lago and seized disputed records, Trump’s lawyers went judge-shopping and landed Cannon through a series of unusual maneuvers (see story here). She then made a series of rulings favoring Trump that respected legal sources slammed as incompetent or worse (see, e.g., story here). Their criticisms were vindicated when a panel of three federal appeals judges, all Republicans and two appointed by Trump, overturned her rulings and rebuked her (see, e.g., story here).

Throughout all this, Cannon was mocked; some commentators called her special master ruling “a Supreme Court job application.” (This assumes, of course, that Trump will be president again, which even to Judge Cannon must look unlikely at this point, so I question whether this motivated her — although I wouldn’t rule out misplaced gratitude or loyalty as a possible motive.)

It’s easy to talk about, but very difficult although not impossible, to remove a federal judge by impeachment. (See list of impeachment investigations here.) A total of 15 federal judges have been impeached, of whom 8 were removed, 3 resigned, and 4 were acquitted by the Senate (details here). What got most of them in trouble were offenses like perjury and bribery; but drunkenness on the bench, sexual misconduct, abuse of power, and favoritism also could bring impeachment wrath down on a judge.

Generally speaking, you don’t impeach a judge for being wrong, or getting overruled, although I suppose a judge who was habitually wrong theoretically might be impeached for incompetence, but in practice would just be shunted off important cases by the presiding judge. Normally the remedy for a bad decision is appealing it, not impeaching the judge who made it.

Cannon got a lot of bad press, not to mention peer sneers, and the appeals court smackdown certainly didn’t make her look good. The petition accuses her of “single-handedly blocked a criminal investigation, usurping clear cut executive power,” and says, “This is a clear-cut impeachable offense.” And while there’s noise out in the weeds about impeaching her, as far as I know no one in Congress is signing up for that yet.

It would take a House majority, which isn’t going to happen after January 3, when Republicans take over; and removing her would take two-thirds of the Senate, which isn’t going to happen, period. Cannon has a lifetime appointment and isn’t going anywhere, unless she decides at some future time that making big bucks at a law firm is preferable to being constantly vilified, ridiculed, and affidavitted* for $223,400 a year (as of 2022) plus health and retirement benefits.

* Lawyers can get a case reassigned by filing an “affidavit of prejudice” against the assigned judge, although this procedure is rarely used, and only in extremity.

Lucky for us, throughout America’s Trump Nightmare, judges — liberals and conservatives alike — have remained loyal to the rule of law. Trump apparently believed the judges he appointed were essentially his employees who owed loyalty to him, but while his Supreme Court appointees have made some controversial rulings (based on ideology, not personal loyalty), events have shown he was living in a dreamland. None of his election cases made it past summary judgments, and many of those cases were dismissed by judges he’d appointed.

The Mar-a-Lago case is all the more remarkable because this is the first time it has appeared a Trump-appointed judge might be elevating favoritism above the law. Legal scholars and veteran lawyers were united in saying Cannon’s rulings in that case weren’t just wrong, they were bizarrely wrong, in a way that sure looked like she was helping Trump any way she could. The appeals court’s rebuke tends to strengthen the argument that her rulings were so far out of line with legal precedent that there’s no other plausible explanation for them.

That could furnish fodder for an impeachment case against her, but mark my words, it isn’t going to happen. Given a Republican Party that’s trying to overthrow the rule of law, and will sell their souls to protect Trump (or, more precisely, protect themselves from his supporters), you simply aren’t going to get a judge removed for helping Trump obstruct investigations into his misconduct.

No matter how much she might deserve it.

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