That's Not How Recusal Works, That's Not How Any Of This Works!

As I wrote this weekend, the apparent assignment of the criminal case against Donald Trump to United States District Judge Aileen Cannon bodes very ill for the prosecution. Judge Cannon’s favorable handling of Trump’s hare-brained attack on the federal investigation of his conduct was seen widely as far outside judicial norms, an observation supported by the blunt language and harsh terms of the 11th Circuit ruling overturning her.

Now “recuse! recuse!” falls from nearly every lip, and the disqualification statute governing federal judges is cited, unconvincingly and suspiciously vaguely, like a Canadian girlfriend. My role is that of an emo legal Cassandra, to tell you in vain that recusal law doesn’t do what you want it to do. Your role is probably not to listen to me, possibly noisily. One of us has offended one or more gods; that’s how we get into tsuris like this.

Let’s begin with the statute. The relevant law is Title 28, United States Code, Section 455. It begins with a broad, rather vague pronouncement:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.1

We’ll get back to that. Suffice it to say it doesn’t mean what you hope it means. A plain-language reading is not reliable.

The statute goes on to enumerate various specific circumstances requiring disqualification, for instance:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

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