Don't automatically write off the judge in the Trump documents case

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Judge Aileen Cannon, randomly assigned to preside over the prosecution of Donald Trump in the classified document case, is coming under intensely critical scrutiny from the left. Some point out that she was appointed to her position by Trump. Others highlight her actions last year, when she disrupted the documents investigation by issuing rulings favorable to him when he challenged the FBI's search of his Mar-a-Lago resort — before an appeals court ruled that she never had legal authority to intervene.

Critics have demanded her recusal because they fear that she will potentially sabotage the prosecution by giving Trump unwarranted delays and favorable evidentiary rulings.

These concerns are exaggerated and only contribute to the dangerous view that the federal judiciary is politicized. The recent history of the courts at many levels provides evidence that even someone like Trump gets no special favors — and the outcome of the Mar-a-Lago case will appear more legitimate in such a system.

Besides, Judge Cannon is a qualified jurist and deserves to be given the benefit of the doubt. She is a magna cum laude graduate of a top-tier law school, the University of Michigan. She clerked for a federal appeals court judge, then worked for a well-respected law firm before serving as an assistant U.S. attorney in Florida.

That she was appointed by Trump does not necessarily make her biased. Presidents appoint all federal judges, but the actual selection process is much more complex and much more removed from the president than many people realize. After a formalized search process, most federal judges are recommended for appointment by their U.S. senators, in this case Marco Rubio of Florida, after recommendations from an advisory commission.

There is no known evidence that suggests Cannon had any personal connection with Trump or worked on any of his campaigns, circumstances that would be reason for a recusal. The American Bar Association rated her "qualified" by a substantial majority and "well qualified" by a minority. In the Senate, her judgeship was confirmed by a vote of 56-21, a healthy bipartisan majority.

She is a member of the Federalist Society, like six of the nine justices sitting on the Supreme Court. Being a member of the Federalist Society was an informal required credential to obtain a Trump judicial appointment. Nonetheless, she has shown no evidence of the sort of strident ideological views held by someone like Matthew Kacsmaryk, the judge for the Northern District of Texas who invalidated the FDA's longstanding approval of an abortion pill.

The criticism leveled at Cannon arises chiefly from her decision to appoint a special master to review the documents seized during last year's FBI search. Her rulings were a major mistake, and the 11th Circuit Court of Appeals soundly, and rightfully, rebuked her for those errors in two separate decisions. In finding that she had improperly appointed a special master, the three-judge panel of the 11th Circuit — two of whom were also Trump appointees — made it clear that "to create a special exception" for a former president "would defy our nation's foundational principle that our law applies 'to all, without regard to numbers, wealth or rank.'"

In other words, the panel chastised her for not properly applying the law and for not treating Trump like any other criminal defendant.

Other legal experts have asked if Cannon has the judicial chops to handle a case of this type and magnitude. She has, after all, been a federal judge for only some two and a half years and has never tried a case involving the theft of classified documents.

For example, Samuel Buell, a Duke University law professor and former federal prosecutor, said that "she is a very inexperienced judge, so even if she weren't favorable to Trump, she might hear a lot of stuff and think she is hearing stuff that is unusual even though it's made all the time."

While concerns about her judgment and ability to manage the case are understandable, Cannon is not known to have said or written anything that suggests such a bias toward Republicans or blindness toward justice that would wholly disqualify her from a case involving Trump. The health and independence of our judiciary depends, in part, on judges learning from episodes like this and, in her case, showing that she will not stray from properly applying the law to Trump as she would to any other criminal defendant.

History shows that Trump-appointed judges have not given him any special treatment when he has defied the rule of law. Nearly every Trump-appointed judge (including his Supreme Court appointees) denied Trump's litigation efforts to further his falsehood that the 2020 presidential election was rigged. This same concern — that Republican-appointed judges would rule in favor of a member of their own party — was raised during Watergate. The prosecutors investigating the burglary and cover-up, including me, were keenly aware of the concerns that the Supreme Court, on which sat four justices appointed by President Richard Nixon, would decline to order him to produce his Oval Office tapes to the special prosecutor. The court, however, unanimously (with one judge recusing himself) ordered Nixon to do so.

Cannon's inexperience puts even more pressure on the special counsel, Jack Smith, and his team: They will have to work harder to provide the judge more legal context through motion papers and legal memorandums than would normally be done with a more seasoned jurist. Smith and his team are certainly up to that task.

Cannon also may not be the only judicial officer making decisions on the case. Under federal rules, she can delegate a decision or decisions on some or all of the pretrial motions to the magistrate judge. Cannon has final say on the magistrate judge's decisions, but typically they are rarely overturned by the district judge.

The magistrate judge assigned to this case, Bruce E. Reinhart, is an experienced lawyer and jurist. He has been in his position for about five years, was an assistant U.S. attorney in Florida for 12 years, a trial attorney in the Justice Department's Public Integrity Section for eight years, and was in private practice for 10 years, according to his federal court biography. (On Tuesday, Jonathan Goodman was the magistrate judge for Trump's appearance, but he is not expected to remain involved in the case.)

If Cannon does err in a way that deviates from treating Trump like any other federal criminal defendant, Smith, armed with the previous decisions of the 11th Circuit, has the right to attempt to have her replaced.

The indictment against Trump is a carefully drafted charging instrument that unquestionably alleges facts, if proven beyond a reasonable doubt to be true, that justify a conviction. The evidence set forth in the indictment recites not only Trump's total disregard for the protection of our nation's most valuable secrets but also his purposely orchestrated scheme, using his lawyer and subordinates, to keep the government from obtaining the classified documents that were recovered though the search warrant.

Ultimately, if Trump is convicted, better to have it happen before one of his appointees. That will go a long way in tamping down Trump's and his supporters' bogus claims of a "witch hunt" and a politicized prosecution.

Nick Akerman, a lawyer in New York, was an assistant special prosecutor on the Watergate special prosecution force. This article originally appeared in the New York Times.