A retired federal judge says Judge Cannon appears to show 'favoritism' toward Trump

Judge Aileen Cannon, who is overseeing the classified documents case against former President Donald Trump, continues to make decisions that puzzle many legal observers.

Last month, Cannon delayed the start of the trial indefinitely. She's taken months to make routine procedural decisions.

Trump is charged with taking classified and top-secret material with him to Mar-a-Lago after he left the White House and then taking part in a conspiracy to hide documents from federal investigators.

The Trump's Trials team wanted to know how someone who has served on the federal bench views Cannon’s decisions, so we called retired federal Judge Shira Scheindlin. Appointed by President Bill Clinton, she served as a federal judge for over two decades.

NPR reached out to Judge Cannon’s office for a response and received a statement from her court that their judges do not comment on pending cases.

This interview has been lightly edited for length and clarity.

Interview highlights

Scott Detrow: What is the main thing that has stood out to you about how Judge Cannon has handled this case, as you've observed?

Shira 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 onto motions. She keeps them pending. She can't seem to decide things. Most experienced judges, which of course I considered myself after 27 years, try to know which motions really require further consideration and argument and which, you know, instinctively you could say frankly, one word: denied. And you can rule from the bench.

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.

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 classified documents cases are going to take longer than other types of cases because there are 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 — that it's just a lot of basic questions coming her way that she has not answered, 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. 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: We all know that President Trump's legal strategy involves delaying this case with the hope that, 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. 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.

But maybe she just says, "This can wait until 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 courtroom 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 courtroom 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 he'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. I think it's more a matter of knowing how to run a complex trial.

Detrow: 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 rigged 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 then 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: I think the partisan criticism has affected the public's perception of the validity of the court system. I think they've lost a lot of faith in this U.S. Supreme Court because of what has been disclosed about Justice Alito and Justice Thomas. But the system has 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, whether your last name is Biden or your last name is Trump.