This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.
When former President Donald Trump sued Hillary Clinton in 2022 over campaign rhetoric from the 2016 election, he tried unsuccessfully to have the case heard by federal District Judge Aileen Cannon, whom he had appointed to the Florida bench.
When the FBI raided Trump’s Mar-a-Lago beach resort in search of classified documents last year, Trump again sought to have his case assigned to Cannon.
That time, he succeeded, though it’s not exactly clear how. The Daily Beast’s Jose Pagliery found that a series of suspicious and serendipitous circumstances led to Cannon being assigned to Trump’s challenge of the documents probe. It worked out for Trump in the short term, with Cannon granting his request for a “special master” to review records seized by the FBI — a move that, for a time, prevented investigators from examining the documents. However, legal scholars widely panned her ruling, and a federal appeals court panel overturned it.
Last week, the federal criminal case against Trump for mishandling classified documents was also assigned to Cannon. That was through the random process the court uses to distribute cases, according to court officials. The outcome is widely seen to favor Trump’s legal chances, but also highlights how proceedings in federal court can hinge on luck — or on concerted efforts to shop for the right judge.
Cannon has several options that can alter Trump’s chances in court. Judges in criminal trials wield a great deal of control over what evidence is admissible, jury selection, and the speed of the process. In a bolder move, Cannon could even grant a motion to dismiss and toss the whole thing out during trial. That decision would be rendered final by the legal principle of double jeopardy, which prevents people from being tried for the same crime twice.
Several legal observers have cast doubt on the likelihood that Cannon would go down such an extreme road, but some have called for her to remove herself from the case — or be removed — because she may not be impartial. Others have pointed to her relative inexperience, having only presided over four criminal trials in her career, and none with the complexity of Trump’s case.
Former federal prosecutor Nick Ackerman cautions against writing Cannon off as a Trump loyalist, on the other hand. In an editorial for The New York Times, Ackerman writes that while Cannon’s ruling on the “special master” was a mistake, “the health and independence of our judiciary depend, in part, on judges learning from episodes like this.”
He also argues that Cannon hasn’t shown the same kind of “strident ideological views” that other Trump-appointed judges have, pointing to Texas District Court Judge Matthew Kacsmaryk as an example.
Kacsmaryk has been at the center of several high-profile rulings, like reinstating the Trump administration’s “Remain in Mexico” immigration policy when the Biden administration tried to end it. More recently, Kacsmaryk ordered a hold on federal approval of mifepristone, a drug used in medication abortions. The U.S. Supreme Court swiftly blocked that decision, at least for the time being.
Vox’s Ian Millhiser has described Kacsmaryk as “one of the most powerful public officials in the United States.” His decision in the abortion case refocused national attention on the question of “judge shopping,” also known as “forum shopping,” because the plaintiffs had no particular reason to sue in Amarillo, Texas, and presumably did so with the hopes of getting Kacsmaryk as the judge.
Litigants looking for a sympathetic district isn’t a new strategy, and isn’t the exclusive domain of any political party or movement. Trump regularly accused Democrats of “judge shopping” throughout his presidency. But writing for The New York Times in February, Stephen Vladeck described the emergence of “a novel and specific form of judge shopping, seeking out the specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule.” Rather than filing a case in a politically sympathetic area with several possible judges, these new efforts are intended for an individual judge. Typically, this is made possible by filing in district sections like Kacsmaryk’s or Cannon’s, where there is only a single judge.
Perhaps no one has used this strategy to greater effect than Texas Attorney General Ken Paxton, who is currently suspended and awaiting an impeachment trial by the state senate on bribery and “abuse of office” charges. According to The New Republic, as of late March, Paxton had filed 20 lawsuits against the Biden administration, and 13 of those “were filed in district court divisions with only a single judge, all of whom were Trump appointees.”
The Biden administration has pushed back on Paxton’s court choices and requested that some cases be transferred elsewhere — with limited success so far. In recent months, several Democratic lawmakers have also proposed legislation to limit judge shopping by requiring certain kinds of cases with potential national impact to be heard in a division with at least two judges or to be heard exclusively in Washington, D.C.
Paxton’s considerable experience in selecting favorable legal venues didn’t help him in his own legal case this week. On Wednesday, the embattled attorney general lost a bid to have his trial for securities fraud (for conduct unrelated to his impeachment) heard in a politically friendlier county.
Some Closing Argument subscribers may not have received recent editions in their inbox — a filter issue has sent many newsletters to spam. Readers can check their spam folder for recent Closing Arguments and mark as “not spam,” or take further steps to make sure they’re getting the newsletters they’ve signed up for.
