Trump’s File B-076: Calvinball Ping Pong
I spent part of last weekend attempting to understand how Judge Cannon might explain throwing out Raymond Dearie’s work plan (which included a rolling process designed to finish up by November 30). This is what I came up with (by all means please let me know if I’ve made errors, but otherwise, don’t invest too much in this because the big takeaway is that Judge Cannon is playing Calvinball, so the current rules mean little).
What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.
The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.
DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.
On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.
Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.
I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.
Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.
I believed, when I wrote that a week ago, Judge Dearie would have no real say in the process until November 14 (see the timeline below), after Trump had made designations on all the seized documents and then spent ten days fighting over those designations with DOJ.
I don’t know what Dearie thought, but on October 4 — one day after receiving the designations from the filter team materials, five days after Cannon’s order — he canceled a scheduled October 6 status hearing, citing the order.
Then, yesterday, he had a say, issuing an order in response to the filter team designations he received on October 3. The order did the following:
- Reveal a set of about 35 pages of Category A files that Trump had raised no attorney-client privilege over (marked in turquoise below)
- Ordered the Privilege Review Team to provide those files to the Case Team by October 10 so they can review Trump’s Executive Privilege and Presidential Records Act claims
- Indicated he would “promptly issue a report making recommendations” about Trump’s attorney client privilege claims as to the remaining Category A and Category C documents
- In fact of a dispute over whether Dearie should make a privilege designation on file B-076, confirmed there was no dispute about the document in question because Trump made no privilege claim over it
- Ordered DOJ to return the originals of all the Category B documents to Trump by October 10, including file B-076
- Set a status hearing for October 18
As I laid out here, Category A documents are government documents involving some legal issue. Category B documents are the personal documents (including those pertaining to Trump’s health, taxes or accounting) that DOJ proposed returning 38 days ago. Category C is a new category, possibly limited to this document turned over to the filter team after the initial filter team inventory was completely,
On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.
Possibly it includes different kinds of documents (such as the call logs) that don’t precisely fit the other two categories.
Here’s what we know of the designations so far, with turquoise being things Dearie cleared to share with the Case Team. (I’ve marked items Trump has claimed no privilege over with an N, items he has claimed privilege over parts of with a P, items that he must be claiming privilege over with a Y, and used question marks for items that, because of the additional category, I’m not certain about.)
Here’s what happens next, best as I can tell according to the rules of Calvinball.
First by Monday, DOJ will give all the original documents in Category B back. That seems to comply with Judge Cannon’s plans, because according to Judge Cannon’s original order, if both sides agree on the privilege designation for a file, it “shall be handled in accordance with the parties’ agreement.”
If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement. If the Privilege Review Team disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision. Failure to object to a report and recommendation within five (5) calendar days shall result in waiver of that objection.
Both sides say Trump should have the originals, and by Monday — a federal holiday — Trump will have the originals back. As I’ve written, that will eliminate one of the harms that Judge Cannon deliberately inflicted on Trump in order to justify getting involved.
It’s the other part of the order I find more interesting: If someone objects to what Dearie has done, they’ve got five calendar days — so until October 12 — to complain to Cannon so she can overrule Dearie.
One side has complained about what Dearie did to not make a privilege determination on B-076, because there’s no dispute: Trump has not claimed privilege over it. Making the determination wasn’t controversial. Rather, deciding to make the determination at all is what one side has complained about.
Document B-076 is a one-page document from Morgan Lewis, the law firm involved in Trump’s taxes.
It’s significant because the duplicate (item 3, which is four copies of the same one-page letter) is one basis for Judge Cannon’s claim that DOJ had made a filter failure. Here’s how the filter team has described it.
An additional seventh box was transferred to the custody and control of the Privilege Review Team agents on August 10 ,2022, after a Case Team agent observed a document on Morgan Lewis letterhead comingled with newspapers.6 Consistent with the filter protocol set forth in the Affidavit, the Case Team stopped its review of the entire box and provided it to the Privilege Review Team agents to conduct a review to identify and segregate potentially privileged materials.
6That document is item Number 3 in Exhibit B (FILTER-B-065 to FILTER-B-068). Also contained within the seventh box were Item Numbers 1 to 4 in Exhibit A (FILTER-A-001 to FILTER-A-005), which the Privilege Review Team agents identified as potentially privileged after receiving custody and control of the box.
And here’s how Judge Cannon used that document (among others) to claim both that Trump was being deprived of personal tax documents and that the filter process had failed.
According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]
[snip]
Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be “unnecessary” [ECF No. 48 p. 22]. The Court takes a different view on this record.
To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13
13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an over-inclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).
In other words, this Morgan Lewis document is one of the central documents to Cannon’s argument that the FBI is not to be trusted, that the investigative team has been tainted, that poor Donald Trump is being deprived of his personal tax records.
And Dearie has now made public that that’s bullshit.
But Trump, who didn’t claim it was privileged, now has the opportunity — by October 12 — to complain to Cannon that his hand-picked Special Master is being mean again.
And that would happen before DOJ submits its merits brief to appeal Cannon’s decision to get involved in the first place, which is due on October 14.
Regardless of the error that the 11th Circuit already ruled Cannon had made by intervening, Dearie has now eliminated much of the claimed harm that Cannon invented to intervene. He has ordered returned all the personal medical and tax documents that Cannon used to claim he was being deprived of very sensitive documents. And he has confirmed that for one of three claimed filter failures — the only one, importantly, pertaining to a non-governmental document — was not a privileged document at all.
Trump could ask Cannon to overrule Dearie for even making that public. But that would make it clear — and public for DOJ’s brief — that Cannon was once again intervening to create a harm she could then invoke to claim a need to intervene.
I don’t know whether under Judge Cannon’s Calvinball rules Dearie was supposed to take these steps at all. But if she wants to override them (again), it’ll make it clear that she’s simply creating harms to excuse her intervention.
Update: Reworded the B-076 language per nedu’s comments.
Timeline
September 29, 2022: Cannon order alters Dearie work plan
September 30, 2022: DOJ motion to extradite 11th Circuit appeal
October 3, 2022; Trump response to 11th Circuit; motion to seal privilege log; original privilege status report unsealed; Potentially privileged material designations submitted (under seal)
October 4, 2022: Trump SCOTUS appeal of part of 11th Circuit decision; Dearie cancels October 6 status hearing
October 5: Vendor selected
October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)
October 10: Deadline to return originals of Category B documents to Trump
October 11: DOJ Reply to Trump Emergency Motion at SCOTUS
October 12: Deadline to complain to Cannon about Dearie’s October 7 order
October 13: DOJ provides materials to Trump
By October 14: DOJ provides notice of completion that Trump has received all seized documents
On or before October 14: DOJ revised deadline to 11th Circuit
October 18: Phone Special Master conference
October 19: Original deadline for DOJ appeal to 11th Circuit
October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material
21 days after notice of completion (November 4): Trump provides designations for all materials to DOJ
November 8: Election Day
November 10, 2022: Trump revised deadline to 11th Circuit
10 days after receiving designations (November 14): Both sides provide disputes to Dearie
November 17, 2022: DOJ revised reply to 11th Circuit
30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit
21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit
December 16: Dearie provides recommendations to Cannon
January 3: New Congress sworn in
No deadline whatsoever: Cannon rules on Dearie’s recommendations
Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion
Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion
Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)
If a potentially privileged document was observed by the Case Team, it was because Trump, a) made no claim it was privileged, and b) made no attempt to treat it as privileged, in that he filed it haphazardly with other non-sensitive, haphazardly filed documents.
There was no way to determine that a potentially privileged document existed or was present in a box with no special markings as to its contents – without going through the box. Once found, the Case Team sent it to the privilege review team. Assuming, improbably, that harm was caused here, it’s another instance of Trump having caused it himself.
If a potentially privileged document was observed by the Case Team, it was because Trump, a) made no claim it was privileged, and b) made no attempt to treat it as privileged, in that he filed it haphazardly with other non-sensitive, haphazardly filed documents.
There was no way to determine that a potentially privileged document existed or was present in a box with no special markings as to its contents – without going through the box. Once found, the Case Team sent it to the privilege review team. Assuming, improbably, that harm was caused here, it’s another instance of Trump having caused it himself.
Potential error in text — Regarding the timeline list, in item two, where it says
“September 30, 2022: DOJ motion to extradite 11th Circuit appeal”
is the word extradite what you mean to say, or perhaps expedite? Or some other legalism?
That’s NOT what I’m seeing in DE 138 (archived copy). Instead, on pp.2-3:
(Emphasis added.)
Your article goes on to write:
But instead, I’m seeing that Judge Dearie declined to adjudicate privilege on “the document bearing the Bates stamp B-076”.
The link I provided here to the archive.org copy of DE 138 is to help verify we’re looking at the same PDF.
… to help verify we’re looking at the same PDF. DE 138 copy downloaded from CourtListener has–
$ sha256sum gov.uscourts.flsd.618763.138.0.pdf
88d9a2fe380c516d5f0c43f6498a9a5845a45870a8b7189ffedf76c6cd172a2c
Copy re-downloaded from archive.org copy using link in comment above matches sha256 checksum.
I think Doc Wheeler already covered this here –
“And we know that one side has complained about what Dearie did: to make a privilege determination on B-076. Making the determination wasn’t controversial: Trump apparently didn’t claim the document was privileged. Rather, deciding to make the determination at all is what one side (presumably Trump) has complained about (emphasis added).”
In other words, they are making a bogus complaint to get Cannon involved in the process once again to screw things up to their advantage – they hope.
Dearie simply asserted that B-076 is not privileged without technically adjudicating, since “Plaintiff has made no assertion of privilege as to B-076 and the parties agree that the document is not privileged.”
Dearie:
I see your point. I’ve reworded.
I think the effect is the same; It’s now public that that is not privileged. And Cannon can’t overrule him, unless she wants to complain about the report itself.
Thanks for re-wording that.
Although the fourth bullet point down now begins somewhat awkwardly, “In fact of a dispute over…”.
Anyhow, as it stands I myself am certainly not going to assert that B-076 is privileged. If we were going to get super-hypertechnical for no good reason at all except the fun of quibbling it might be entertaining to precisely parse the exact legal effect of no judgement… (estoppel?)… but Judge Dearie directs that Trump gets B-076 back, so that’s bottom line.
I think bottom line is if DOJ can say in their report, “The harms Cannon raised were either unfounded or caused by her.”
Recall that around the time of the first appeal, DOJ privilege team asked to unseal their status report. They would have known that it debunked a lot of what Cannon claimed in both her orders. But she held it until even Clarence Thomas had weighed in.
I’m really looking ahead to an attack on the warrant on the grounds of overbreadth…
Yet another way it could come up again, though, is let’s say Trump’s indicted, goes to trial, takes the stand in his own defense, testifies to something… and the government wants to impeach that testimony using B-076. Trump objects.
What happens? All hypothetical right now.
is Haberman really this dumb?
https://www.mediaite.com/news/new-haberman-scoop-trump-told-aides-he-would-trade-documents-he-took-to-mar-a-lago-for-fbis-russia-files/
On Saturday, Haberman and Michael Schmidt dropped a new one, reporting that Trump effectively wanted to use the Mar-a-Lago documents as hostages — to procure other secret documents:
Mr. Trump, still determined to show he had been wronged by the F.B.I. investigation into his 2016 campaign’s ties to Russia, was angry with the National Archives and Records Administration for its unwillingness to hand over a batch of sensitive documents that he thought proved his claims.
What was stupid was Trump trying to rush out the FBI/Russia declassification on the last day. And completely effing up the process.
LOL, I doubt he wants anything declassified. He’s full of shit, and Haberman is using him as a source. She’s like a broken fiddle
Not sure what the broken fiddle reference means. Does it play the right note twice a day?
It could be that she never hits the right note because the fiddle is broken and out of tune.
Trump’s playing her like a fiddle I think is the intended idiom.
Trump needn’t have wanted the documents declassified, in order to want them in his hands.
It seems from that report, though, that there are witnesses to Trump saying he wanted to extort the government by offering to exchange one set of classified documents for another.
If there really are witnesses to that, then they might be witnesses to Trump’s mens rea.
“The report” is from Maggie and her source is Trump. I don’t know why anyone takes her seriously
Everything I wrote in my comment is correct.
and irrelevant
“Calvinball” is a game without rules; players make up the rules as they go along.
You do realize she groks that, yes? Though I think the one rule to Calvinball — yes, there’s a rule! — might preclude Cannon overriding Dearie’s steps again.
Bless you, Rayne!
Re: the timing of Cannon’s intervention. It may have something to do with a sealed motion filed on Sept 26.
Under Cannon’s order appointing the Special Master, if either party had a problem with something Dearie did, they had five days to appeal it to her (ECF 91 para 11)
Dearie’s original Case Management Plan came out of Sept 22.
On Sept 25, Trump’s lawyers sent Dearie a private letter (CC to DoJ) objecting to various provisions of his plan, that was not entered into the docket at that time.
On Sept 26, a motion was entered into the docket as #115 that was sealed until further notice (I believe this was a Trump motion objecting to Dearie’s plan for Cannon to rule on.)
On Sept 27, the DoJ filed a motion to extend some deadlines (ECF 121) with Dearie, and included information disclosing the objections made by Trump’s lawyers, without saying where the objections originated.
On Sept 28th, Trump’s lawyers file a pretty incomprehensible response to he motion to extend deadlines, and attaches the private letter that had been sent to Dearie.(ECF 123-1)
On Sept 29, Cannon issues an order amending Dearie’s Case Management Plan, citing only the letter sent to Dearie, and the motion to Dearie asking to extend deadlines.
No (unsealed) motion objecting to Dearie’s plan exists, however, just the private letter. So I suggest that Cannon acted based on the sealed motion…
“Russia, if you’re listening, I hope you’re able to find the dozens of missing top secret documents. I think you will probably rewarded mightily by our press.”
I would guess Putin is otherwise preoccupied with the fact that his “special military operation” has now literally gone a bridge too far, as in the Kerch Bridge going up in smoke.
Notice how Cannon’s biases show up in small details of her writing, this for example:
“Plaintiff believes the email falls squarely into the category of attorney-client privileged.”
She could instead have written “Plaintiff holds” or “Plaintiff asserts,” a neutral description of what Plaintiff has said in a filing.
Instead she wrote “Plaintiff believes,” as if she had some mind-reader’s knowledge of Trump, and as if she knew for certain that Trump were sincere in this belief of where the email “squarely” falls.
Judge Cannon is safe in that there is no realistic way that she can be removed from the bench, so it’s likely that she can and will do more to delay, create ammunition for more anti-government propaganda, and continue to undermine the legitimacy of the system she supposedly took an oath to uphold.
Her actions are clearly not in good faith, and it is saddening that this is not a matter of deeply heartfelt concern for all Americans.
Thanks to Dr Wheeler for the timeline.
It seems like Dearie will be considering his recommendations, his report on the review and his rulings
AFTER oral arguments are already made to the Eleventh Circuit and at a time when a ruling by them to throw out the whole Special Master appointment could come at any day.
I’m confused by the concept of there being no disagreement about the privilege status of the document but there being a dispute about the SM making a privilege designation on the same document.
Timeline: September 30, 2022 DOJ motion to expedite?
Is confusing concept. Emptywheel’s theory is that Trump does no wish to hold the Morgan Lewis tax-related letter is privileged, but does desire for Special Master Dearie to review the letter in order to provide a basis to initiate a challenge before Judge Cannon of his pending review, thus manufacturing a further delay and kink in the wheel. Many commenters agree with her theory.
“Many commenters agree with her theory.”
Welcome to emptywheel. This is your first known comment under this username. Avoid adding gravitas to your observation by making this assessment — which commenters you are referring to and at which site is unclear.
What?? And who are the “many commenters”?
A few thoughts:
1. You missed designating number 11 with turquoise.
2. I don’t see how he can claim any sort of privilege with respect to numbers 5 through 13 (inclusive and excluding 11). As has already been extensively discussed, only the current President can assert executive privilege, so that is out. And I fail to see how any of those items could possibly relate to his legal interests or affairs and any legal advice that might be contained therein would not relate to him, unless they contain something to the effect that by granting a pardon or taking/not taking some action helps him in his own legal affairs and they don’t have a non-lawyer or White House Counsel Office attorney involved. And even if they met that restriction, I would still argue that they are Presidential Records and they relate to ongoing matters within the President’s remit and therefore are not privileged.
3. Items 17-18 look as if related to the Georgia investigation (Hilbert is a Georgia counsel) and therefor may be AC privileged. “MAY” = there might be other recipients/persons involved whose presence destroy the AC privilege.
4. Items 19-20 are related to the NARA and may be post-presidency, so arguably not Presidential Records. Additionally, might have been generated by Christina Bobb or another “faux”, although licensed, attorney and therefor may be AC privileged. “MAY” – there might be other recipients/persons involved whose presence destroy the AC privilege. Additionally, the crime-fraud exception might apply to destroy the AC privilege.
5. When referring to the AC privilege, I am also including therein the “work product” privilege.
6. You say that “. . . DOJ will give all the original documents in Category B back. That seems to comply with Judge Cannon’s plans, because according to Judge Cannon’s original order, if both sides agree on the privilege designation for a file, it “shall be handled in accordance with the parties’ agreement.”” But not all the parties have agreed – IMO of how Loose Cannon is acting, there are, in reality, three parties, the designated plaintiffs, the designated defendants, and Judge Loose Cannon, the Uber-Plaintiff, standing in for THE PEOPLE, THE TRUTH AND TRANSPARENCY, all as interpreted by her.
7. Upwards of 500 pages – that means currently approximately 200,000. I would not be surprised to see this number grow substantially.
8. “As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.” This language, along with her diatribe in the next paragraph, makes it clear to me that Cannon would like to order that all of the material first be reviewed by Dearie and then, if necessary (and it would be), reviewed again by her.
9. You say that “Dearie has now eliminated much of the claimed harm that Cannon invented to intervene.” But the key to me is the “invented.” But Judge Dearie has not yet reviewed every single piece of seized material and there could be other malfeasance not yet discovered. I have the utmost faith in Cannon’s ability to find such malfeasance and to invent a new harm, an irreparable harm, that is being inflicted on Trump and that can only be cured by some new invented remedy.
10. Lastly, I agree with you that Cannon certainly plays by Calvinball rules, especially as applied by Calvin and Trump. IMHO, Hobbes was more honorable.
PS: I miss Calvin and Hobbes (I checked, Hobbes has an “e” at the end).
Lol. Okay. Glad that you agree with a few things.
Ruben Bolling’s “Tom the Dancing Bug” often does Calvin and Hobbesian takes on “Donald & John, a Boy President and His Imaginary Publicist.”
re: 3, Items 17-18, emails from Hilbert: those emails were from 12/31/20, so NOT the Georgia investigation, but most likely the TRUMP Camp’s Georgia election lawsuits. See Marcy:
https://www.emptywheel.net/2022/10/05/judge-aileen-cannon-treated-a-public-letter-about-trumps-health-as-more-sensitive-than-americas-national-security/
Here’s a comment from me giving some context to the 12/31/20 timing:
https://www.emptywheel.net/2022/10/05/judge-aileen-cannon-treated-a-public-letter-about-trumps-health-as-more-sensitive-than-americas-national-security/#comment-964988
“upwards of 500 pages” is apparently now capped at 21,792 pages.
[Splitting this one into two comments, ’cause I see Howard Appel’s 6:20 pm comment above may have raised this issue already.]
In the embedded spreadsheet, the unheaded column 6th from the left, in between the columns headed “Pages” and “Privilege?”, appears to be the Bates range without the “Filter-A-” prefix.
In that spreadsheet, under “Category A”, the item-number, document descriptions and Bates range all appear to match the “Item No.”, “Description” and “Bates Range” columns in the Zoe Tillman-provided copy of the privilege status report’s Exhibit A (DE 40-1; pp.11-12 in PDF).
However, comparing those Bates ranges in the spreedsheet with DE 138, I am NOT seeing a complete match between the “Privilege?” column and the Special Master Order.
[More to come, as I attempt to carefully compare the spreadsheet to DE 138. I’ll attempt to point precisely, but this issue maybe could use a few more eyeballs.]
I thought I was the only one. I can’t make sense of the Bates numbers in Dearie’s order. They don’t correspond in any sensible way to documents in the leaked Exhibits A and B.
First basic: everyone makes mistakes. No exceptions. That said, over the years, when Zoe Tillman reports, I rely on her facts—
Her tweeted analysis contains a caveat. But then she remarks, “[B]ut at least some seem to match up”.
I’d be awfully surprised if the fully-prefixed Bates-numbers were re-used to designate different documents in the course of one case.
Cannon Folderol
From the great Atlantic Ocean
to the wide Pacific shore,
From the green ol’ Smoky Mountains
to the south lands we adore,
High-and-mighty gall and ransom
hurt more than just a stall,
It’s a reckless combination
that harmed by Cannon folderol.
She knew how to bungle, to rumble
and to roar,
As she rode along a grandstand
with its thrills and even more,
Her almighty crush of circumvention,
Her ever loathsome stonewall
jeopardized our defenses
with Cannon folderol.
Our eastern states are dandy,
so the people always say,
From New York to St Louis
with Chicago by the way,
From the hills of Minnesota
where the rippling waters fall,
but dangers there are present
due to Cannon folderol.
Now here’s to Raymond Dearie,
may his name forever stand,
And always be remembered through
the courts throughout the land,
His work is not yet over,
but rule of law won’t fall,
He’ll do his best for victory
against Cannon folderol.
https://youtu.be/yaU2ptzGZX8
“Wabash Cannonball (Instrumental)”
Folderol and cannonball—nice!
It’s all about timing
Red Sox GM Chaim Bloom needs more time to extradict the Sox from last place in the AL East. They finished last in two out the last three years.
AG Garland needs more time to indict the former President.
In the meantime, fans and voters grow restless.
Nobody know the future but will we look back in history and say, did we take the wrong fork in the road?
Many moons ago, Rachel Carson commenting on the future environmental disaster remarked “The other fork in the road — the one “less traveled by” offers our last, our only chance to reach a destination that assures the preservation of our earth.”
Will our democracy win out?
As an uninformed non-lawyer, I was a bit surprised that Dearie issued any sort of order at all, even one as non-controversial as this one. Cannon obviously wants his hands tied up as much as possible, and this order is Dearie’s way of saying that there are STILL things that he can do, even as constrained as he is.
No surprise. Dearie is a senior federal judge, trying to finish the nominal assignment Cannon gave him. If she wants to play Calvinball, he’s not interested.
The former guy is claiming the FBI planted the nuclear-secrets docs that he definitely didn’t have at Mar-al-Ego and that he desperately wants back.
https://twitter.com/Acyn/status/1579269320315502592
In your very helpful Timeline, believe the hyperlinks associated with the following two described documents are incorrect:
October 3:….. motion to seal privilege log
October 5: Vendor selected
Thnx
Thanks for noticing that. It looks to me like those two hyperlinks should be–
October 3, 2022: … motion to seal privilege log (DE 129); …
October 5: Vendor selected (DE 137)
Does that look right to you?
I have a question…. Can any future litigant that finds themselves in Cannon’s court request (and eventually receive) a change of judge based on this epic FU?
No! People have gotten hysterical about Cannon. You do not get to pick and choose your federal judges. If not for this case, you would have never even known her name.