- Jack Smith moved to gag Trump from claiming the FBI plotted to kill him during the Mar-a-Lago raid.
- The motion could reveal a pro-Trump bias if Judge Aileen Cannon denies it, experts told BI.
- "Any normal judge" would issue an order to protect witnesses, said a former federal prosecutor.
Special counsel Jack Smith and lawyers for Donald Trump are fighting over a proposed gag order that would prevent the former president from claiming the FBI plotted to assassinate him during their August 2022 raid on Mar-A-Lago.
But, in addition to preventing Trump from making false and inflammatory claims about witnesses in his classified documents case, legal experts told Business Insider that the motion filed by Smith on May 31 could also reveal whether Judge Aileen Cannon is biased in Trump's favor, as critics from across the legal spectrum have alleged.
Accusations of pro-Trump bias
Judge Cannon, appointed by Trump in 2020, has been accused of having a pro-Trump bias after making several unusual decisions in his favor. She has overseen cases involving accusations that Trump illegally kept classified documents from his time in the White House in violation of the Espionage Act.
In 2022, as part of a separate lawsuit Trump brought, attacking the FBI's investigation, the judge sided with the former president's legal team when she ruled the government's witness list should be unsealed.
One of her rulings in Smith's criminal case against Trump was also reversed on appeal by the conservative 11th Circuit appeals court after she moved to appoint a special master to oversee the review of classified documents seized from Mar-A-Lago.
On May 7, Cannon handed Trump's camp another legal win when she delayed the case indefinitely by scheduling a flurry of additional hearings through July to rule on "myriad and interconnected pre-trial and CIPA issues," referencing the Classified Information Procedures Act before the trial could begin.
Known for his personal attacks on the judges overseeing cases against him, The Washington Post reported Trump has instead described Cannon as "highly respectable." And allies of the former president joked to Rolling Stone she is their "favorite member of the Trump campaign" and a "godsend."
Cannon's decisions have drawn sharp criticisms from legal experts across the political spectrum, including attorney George Conway, the ex-husband of former Trump counselor Kellyanne Conway, as well as Ty Cobb, a former lawyer for the Trump White House, who told CNN Cannon's rulings in Trump's favor appear to be "her attempt to put her thumb on the scale."
'She should recuse'
For some attorneys and former prosecutors who spoke to Business Insider, Cannon's actions create an appearance of a conflict of interest so significant that they believe she should recuse herself or be removed from the case by a higher court.
"She is a judge in a case where the president who appointed her is one of the litigants. That is all that should be necessary to force a reasonable person to question her impartiality," Tracy Pearson, a former trial and appellate lawyer, told BI."If the case were being defended by her former law firm, she would need to recuse. Here, the case is against the person who hired her. She should recuse."
Others aren't so sure: Rather than bias, it's possible Cannon is overly cautious about exercising her judicial powers due to her relative inexperience, Kevin McMunigal, a former federal prosecutor, told BI.
"I'd say she's just being sort of very careful about how she goes about this, not wanting to make an obvious mistake and get turned around like she did," McMunigal said. "Because she got scolded the first time by the appellate court, and that's the kind of experience that will tend to make the judge really risk averse."
The New York Times reported that Cannon presided over just 14 days of criminal trials as a judge before she was assigned this historic case involving a former president accused of espionage.
The gag order becomes the barometer
But denying the requested gag order, which was requested to protect law enforcement witnesses — something most judges wouldn't typically deny — could become a key barometer to determine how biased Cannon really is, Neama Rahmani, a former federal prosecutor, told BI.
"Any normal judge would probably issue an order that would protect witnesses," Rahmani said. "Judge Cannon has issued — or not issued — some very bizarre orders, but given that Judge Cannon has seemingly sided with Trump at every possible turn, I wouldn't be surprised if she did not issue this order."
Rahmani added: "It's kind of setting her up. I mean, obviously, I think this issue is important, but it would really show how unreasonable she is if she won't take precautions to protect the safety of the agents and witnesses in the case, and I can see her getting reversed again."
If Cannon does deny the gag order, and if Smith then appeals the decision as experts expect he would, and if the 11th Circuit then reverses her denial — a lot of ifs, to be sure — the question then becomes: After how many reversals is Cannon removed from the case?
Pearson, McMunigal, and Rahmani all agreed that removing her would be a harder sell. They said it could be done, but it's extremely rare for judges to be removed from a case over bias concerns.
"The standard is that when the judge's conduct gives rise to the appearance of impropriety or the lack of impartiality," Rahmani told BI. "I don't know if we're there yet. I don't know if the 11th Circuit will think we're there, but Cannon refusing to issue a gag order that would safeguard law enforcement or other officers, in my opinion, that's an abuse of discretion. But we'll see what Cannon does — and what the 11th Circuit does in response."
Representatives for Smith's office and lawyers for Trump did not respond to requests for comment from Business Insider.