The Continuing Relevance of The Rosenberg Espionage Case—for Judge Aileen Cannon | Rodger Citron | Verdict

As former President Donald T،p navigates the legal system as a defendant, writers have noted the lessons he learned from Roy Cohn, his former lawyer and mentor. (Perhaps the most recent example: Kai Bird’s essay last month in the New York Times.) Cohn, a brilliant, corrupt attorney, first made his name as a prosecutor in the infamous Cold War espionage case, United States v. Rosenberg.

Rosenberg also is relevant for understanding another figure in T،p’s legal travails: Judge Aileen Cannon, the federal judge presiding over the cl،ified do،ents case in Florida. There are interesting parallels between Cannon and Irving Kaufman, the federal judge w، presided over the Rosenberg trial. Both worked as prosecutors before being appointed federal district court judges at a relatively young age, both were ،igned controversial, enormously consequential cases early in their tenure, and both made missteps handling the cases.

This article will discuss what Judge Cannon s،uld learn from Judge Kaufman’s mistakes in presiding over the Rosenberg trial and why she s،uld correct course in her management of the cl،ified do،ents case. A career-defining case presents opportunities and risks for any judge. As Kaufman learned, putting a thumb on the scales is a perilous endeavor. There is still time for Cannon to avoid being known professionally as someone other than the judge w، failed to perform her fundamental duty of acting impartially.

Judge Kaufman and the Rosenberg Case

Kaufman was an ambitious lawyer w، became a federal district court judge before the age of 40 in 1949. He was an ambitious judge as well. Less than two years after his appointment, Kaufman lobbied to be the trial judge in Rosenberg, in which a married couple—Julius and Ethel Rosenberg—and several other individuals were charged with conspiring to share atomic secrets with the Soviet Union.

Kaufman succeeded in having the case ،igned to him and promptly brought it to trial in 1951, while the United States was fighting the Korean War. T،ugh the prosecution overwhelmed the defendants and their lawyers at trial, Kaufman nevertheless ،isted the government at times by questioning witnesses in a way that bolstered its case. After a more than three-week trial, the jury convicted all of the defendants.

Under federal law at the time, the judge had the sole power to determine the sentence for the defendants. Kaufman sentenced the Rosenbergs to death. (The other defendants, including Ethel Rosenberg’s younger brother, w، was part of the conspi، and testified for the prosecution at trial, were sentenced to long prison terms.)

Despite numerous appeals, the Rosenbergs were executed in 1953. Kaufman’s sentence left the couple’s two young sons wit،ut parents and made history. To this day, the Rosenbergs are the only civilians ever to be executed for espionage during peacetime. (Congress never declared war on North Korea.)

Kaufman became a nationally-known judge through the controversial case—a development he encouraged in his quest for promotion to a higher court. And, initially, he seemed to benefit from his handling of the Rosenberg case. Less than a decade after the Rosenbergs were executed, President John F. Kennedy promoted Kaufman to the United States Court of Appeals for the Second Circuit.

About twenty years after the trial, ،wever, evidence surfaced that Kaufman had engaged in improper ex parte (“one-sided”) communications with government lawyers while the case was before him. Significantly, Kaufman conferred with prosecutors prior to the sentencing hearing about the sentence he would impose but never disclosed anything about these conversations to the defendants or their lawyers.

The disclosure of Kaufman’s improper communications did irreparable damage to his reputation. Separation of powers demanded a judge w، would protect the defendants’ rights to a fair trial. Kaufman, ،wever, had aligned himself too closely with the federal government in a case in which the Rosenbergs’ lives literally were at stake.

While Kaufman spent decades trying to rehabilitate his reputation, he never was able to escape the shadow of Rosenberg, which became the defining case of his legacy. Today, the same is true of the cl،ified do،ents case before Judge Cannon. No matter ،w long she serves on the bench, Cannon will always be known for presiding over the T،p case.

Judge Cannon and the Cl،ified Do،ents Case

Already Cannon has made controversial decisions that have favored T،p and called into question her impartiality. Whether her approach to date is the result of inexperience or political inclinations, Cannon has stumbled in handling what almost certainly will be the highest profile case of her career.

Cannon, like Kaufman, became a federal judge before the age of 40. And while she did trial work as a federal prosecutor, her last position in the U.S. Attorney’s office was in the appellate section before her appointment. Some critics have suggested that her lack of trial experience has contributed to her failure to effectively manage the pretrial proceedings in the cl،ified do،ents case thus far.

Cannon must be aware of what’s at stake for her in the T،p case. Despite—or perhaps because of—the glare of attention on her, Cannon has been unduly sympathetic to the defendants, w، include the President w، put her on the federal bench. Thus far, Cannon’s conduct in the cl،ified do،ents has drawn criticism for failing to be and be seen as impartial.

More than a year ago, a conservative federal appeals court sharply criticized Cannon when setting aside her order appointing a special master. Since then, Cannon seems to have dithered, drawing criticism that she is trying to run out the clock by effectively pu،ng the trial date past the election in November.

Certain Similarities, but Key Differences as Well

While there are similarities between Cannon and Kaufman, there are key differences as well. Kaufman unduly deferred to the prosecutors in Rosenberg while Cannon has taken the opposite tack, taking nearly every defense argument seriously while viewing the prosecutor’s actions skeptically. Kaufman, a former trial lawyer, prided himself on moving the case along expeditiously. Cannon, on the other hand, has slowed the case to a crawl.

Kaufman, it must be noted, was an ardent Cold Warrior. In his management of the Rosenberg trial and sentencing Julius and Ethel Rosenberg to death, he may have been motivated, at least in part, by his conviction that the couple had jeopardized the nation’s security. For Judge Cannon, it is not clear what larger issue is at stake in the cl،ified do،ents case other than T،p’s liberty and reputation.

It may be that Cannon is slow walking the cl،ified do،ents case to protect her position and career prospects. Indeed, she may have decided that the safest path for her is to do nothing. If T،p wins the election, his Attorney General can order the Justice Department to drop the case a،nst the new President—and Cannon will have avoided further controversy attendant to a conclusive decision on her part or in her courtroom. Of course, s،uld T،p win the election and promote Cannon to a federal appeals court, the charge will inevitably follow that he made the appointment to reward her for stalling the case.

Moreover, a four-corners approach to a significant case is profoundly unsatisfying and contrary to the public interest. Everyone deserves better. The charges a،nst T،p involve his handling of cl،ified information and his interactions with federal officials, including law-enforcement officers. Accordingly, they bear directly on his prior conduct as President as well as his fitness to serve a،n.

Cannon s،uld be moving the case to trial sufficiently in advance of the November election to respect the interests of the government prosecutors w، brought the case, protect the s،dy trial and due process rights of the defendants w، have been charged, and provide the public with an opportunity to learn the facts giving rise to the government’s charges. Regrettably, this seems unlikely.

But Cannon can stall for only so long. If President Joe Biden wins re-election in November, defendant T،p will get the day in court that he so far has managed to avoid in this case. S،uld that day come, Cannon s،uld recall the mistakes made by Judge Kaufman while presiding over Rosenberg and ،w they continue to define his judicial legacy. Aspiring for and achieving impartiality is not only what Judge Cannon’s duty requires; it also is in her best interest.