July, 2024
Washington — Whether federal district Judge Aileen Cannon should be replaced in the Trump classified documents case, for alleged incompetence and prejudice, is a matter that may soon be taken up by the 11th Circuit Court of Appeals. She has already been reversed twice in the case by the higher court and her latest decision looks to meet the same fate.
This recalls my own experience* with a federal judge several years ago, in a case in which I was the plaintiff against nine student loan lender defendants, calling out their false claims against federal taxpayers.
In our case, after the judge in question had been assigned and began to make decisions, five of the defendants objected to him continuing, as they had no confidence that he was up to the job. In advance of their request for his removal, the defendants asked us as the plaintiff if we would join them in seeking a different judge for their five cases. I recall my lawyers saying to me that ordinarily, if the other side doesn't like a judge, we should welcome his assignment, but in this case the defendants seemed all too correct in their assessment. They felt that the judge was so erratic that the outcome could be disastrous for either side based on neither facts nor law.
So we joined with the defendants and a magistrate judge was appointed by the district court as a replacement, to handle the five cases. Within a few months, settlements were reached.
But that left four other defendants that the first judge had previously tried to dismiss from the case. We successfully appealed that decision to the 4th Circuit, which reversed and remanded the case back to him, not to the magistrate. I asked my counsel if we should ask once again for him to be replaced with a different judge for the remand, given that the judge would likely hold it against us that we had previously asked for his removal on the other cases, and succeeded. They concluded that it was very difficult to remove a judge based on only one side's request, and that we would have to take our chances with him, dangerous as that might be.
We paid the price. His decision on remand went against us, which we then had to appeal once again to the 4th Circuit, which again reversed him. These successful appeals are known by their shorthand descriptions: Oberg I, Oberg II, and Oberg III. The latter decision was taken by the defendant Pennsylvania Higher Education Assistance Agency to the U.S. Supreme Court, which denied certiorari. This reversal continues to stand as an important precedent in matters of sovereign immunity of quasi-governmental entities.
But the remand sent the merits issues back to the same judge for a jury trial. Again, my counsel and I discussed whether to request a different judge, on the basis that he had ruled against us three times, had been reversed three times (with the last reversal being validated by the Supreme Court), and would be looking for vindication in a jury trial over which he presided. Again, we decided to press ahead with the same judge, sensing no chance that he would be replaced.
The trial was marked by two important rulings the judge made against us. He did not permit us to enter evidence from the Pennsylvania Auditor General and he did not allow us to present numerous instances of PHEAA perjury. He did not give the jury instructions that followed the statutory definition of false claims, omitting "reckless disregard" as a basis for conviction. He did not allow jurors to take notes during the trial and refused a jury request early in their deliberations to put his jury instructions in writing for them.
I knew what we were getting into when we went to trial, so I was not surprised at either the process or our loss in this judge's courtroom. The loss had to be weighed against several successes involving other defendants. We won settlements in seven of the nine original cases and set an important standard for determining sovereign immunity. Other plaintiffs would eventually succeed in litigation against PHEAA due to its loss in Oberg III.
But that took time. Rather than face mounting legal challenges, PHEAA finally gave up being a federal loan servicer four years after the trial, but only after doing enormous damage in the billions of dollars to the Public Service Loan Forgiveness program in the meantime. PSLF has never been straightened out satisfactorily.
It should be easier to replace judges when there is good reason to question their competence and prejudices. Based on my experience, I think Judge Cannon should be relieved of any further work in the classified documents case, before even more damage is done to national security. It should have been done much earlier. The handling of classified documents is too important to be left to such a judge. As a naval officer, I was once a ship's cryptographer with a top secret crypto clearance. It was drilled into us that the mishandling of classified documents would have dire consequences. It must stay that way.
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* See Dan E. Moldea, Money, Politics, and Corruption in U.S. Higher Education (2020).
