UPDATE – April 1 – U.S. District Judge Aileen Cannon Friday rejected former MIami Republican Congressman David Rivera’s plea that she void as unconstitutionally excessive a $456,000 civil penalty assessed against him by another judge for violating federal campaign laws.
“This court is not persuaded by (Rivera’s) arguments,” Cannon wrote in her eight-page order. “Reconsideration of the Final Judgment is not warranted, nor is an evidentiary hearing necessary or justified.”
Cannon’s ruling agreed with findings made in March 2022 by the late Miami U.S. District Juge Judge Marcia Cooke. The matter is now before the federal appeals court in Atlanta.
By Dan Christensen, FloridaBulldog.org
Feb. 19 – Many shed a tear when Miami federal judge Marcia Cooke died after a bout with cancer on Jan. 27. Not only was she the first black woman to become a judge in the Southern District of Florida, Cooke was also widely respected for her evenhandedness in court.
Yet for at least one beleaguered defendant, former Republican Congressman David Rivera, Cooke’s departure from the bench – and the reassignment of his case to her controversial colleague, Judge Aileen Cannon – presents an opportunity.
Cannon, nominated to the court by President Donald Trump in 2020, gained nationwide notoriety last year after she blocked the FBI from using thousands of sensitive government documents seized during a court-authorized search of Trump’s Mar-a-Lago property last August until they were reviewed by a special master. Her ruling was later vacated on appeal by a trio of judges who ruled she had no jurisdiction to issue such an order.
Last March, Cooke ordered Rivera to pay a $456,000 civil penalty after a Federal Election Commission lawsuit established significant wrongdoing by the one-term Miami congressman. That included his working “secretly” to finance the primary campaign of another in an attempt to “trick voters” and “weaken” his likely 2012 general election opponent, Democrat Joe Garcia.
It was one of the top 15 largest civil penalties ever imposed for violations of federal election law.
Today, however, Rivera has a motion pending before Judge Cannon asking her to declare as unconstitutionally excessive the penalty enhancement provision of the Federal Election Campaign Act [52 USC § 30109 (a)(6)(c)] that Cooke used to punish him for “multiple” violations of the law, including making thousands of dollars in contributions in the names of others.
JUDICIAL DISCRETION ON CIVIL PENALTY
That provision gives judges in such cases the discretion to set the civil penalty at between 300 and 1,000 percent of the amount of money involved in the violation – in this case 600 percent of the $76,000 Rivera surreptitiously spent to undermine Garcia’s campaign.
“In reaching that figure, the Court considered: (1) Rivera’s bad faith; (2) the injury to the public caused by Rivera’s actions; (3) Rivera’s ability to pay; and (4) the necessity of vindicating the authority of the FEC and the penalty’s deterrent effect,” FEC lawyers said in court papers opposing Rivera’s motion for relief from Judge Cooke’s judgment.
Cannon, a member of the conservative Federalist Society based in Fort Pierce, will now reconsider Cooke’s decision. And given what proved to be her botched and embarrassing performance in overseeing the Trump documents case, questions are likely to arise about her ability to impartially handle another politically charged case.
A three-member panel of the 11th Circuit Court of Appeals, which included conservative Chief Judge William Pryor, publicly skewered Cannon’s decision in the Trump case to block the FBI from using the seized documents in its ongoing investigation.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations,” the panel wrote in its unanimous Dec. 1 order.
Here’s a sampling of the mortifying headlines that followed: Washington Post, “A thorough rebuke of Judge Aileen Cannon’s pro-Trump Order”; New York Times, “Trump Ruling Lifts Profile of Judge and Raises Legal Eyebrows”; Slate, “Judge Aileen Cannon’s Reign of Madness is Over.”
CANNON BACK ON PUBLIC STAGE
Three months later, Cannon is back on the public stage overseeing another high-profile case with significant implications for federal election law.
Months before Judge Cooke’s death, Rivera’s Fort Lauderdale appellate lawyer, Thomas Hunker, filed a motion to alter or amend her final judgment because it allegedly violates the Eighth Amendment’s prohibition on excessive fines. Specifically, the court is asked to strike down the 300-1,000 percent penalty enhancement provision established by Congress.
Federal Election Commission attorneys are opposing. In court papers, they argue that Judge Cooke’s “well-reasoned order,” and the $456,000 penalty, should stand.
“This is actually a big deal,” said campaign finance lawyer Brett Kappel, of the Washington, D.C. firm Harmon Curran. “Judge Cannon might rule in his favor and blow a huge hole in the FEC’s enforcement powers.”
Rivera also has appealed the fine to the Eleventh Circuit on the same grounds, but has asked it to suspend his appeal pending Judge Cooke’s, now Judge Cannon’s, ruling on his motion to set aside the judgment. So the ball is in Judge Cannon’s court.
RIVERA’S PENDING CRIMINAL CASE
Developments in Rivera’s pending criminal case may also bring added attention to the civil enforcement matter. Rivera was arrested Dec. 5, 2022 at Atlanta’s airport following his Nov. 16, indictment by a Miami federal grand jury on charges of money laundering and representing a foreign government – Venezuela – without registering.
Both Rivera and co-defendant Esther Nuhfer were released after surrending their passports and posting $200,000 bonds. But both have yet to obtain permanent counsel or be arraigned and enter pleas to the government’s charges. On Friday, Miami U.S. Magistrate Judge Jonathan Goodman ordered them both to appear before him Tuesday for arraignment.
How the FEC case against Rivera came to be assigned to Cannon may also raise questions. When a sitting judge dies the district’s internal operating procedures say case reassignments “shall be determined at the discretion of the Chief Judge.”
Asked about this in an email, Chief Judge Cecilia Altonaga punted to district Court Administrator and Clerk of Court Angela Noble.
“My office is responsible for all case assignments. The case you referenced was reassigned using a “blind random assignment” method. This method will randomly assign cases to any District Judge in the District, regardless of location. Judge Cannon was randomly assigned in this manner,” Noble said.