Aileen Cannon Did Something Normal

Aileen Cannon just issued an order for attorneys for Trump or Walt Nauta to contact DOJ’s Litigation Security Group to start the process of applying for security clearances by tomorrow.

This is just one order. It likely came as a result of DOJ contacting the Litigation Security Group, probably asking that a Court Security Officer be appointed, for this case, and alerting them that lawyers will need clearances. The Court Security Officer will be entrusted with the classified information that will, one day, be submitted at trial, including by ensuring that any filings to the docket are properly redacted. Possibly, it was Litigation Security Group, and not prosecutors, who contacted Judge Cannon and told her she needs to issue an order.

In other words, someone probably nudged her and told her this is the normal thing to do, and she did it.

It’s a bit awkward, because Nauta won’t even be arraigned until June 27, so he may not have any Florida lawyers file an appearance before then. But they are on notice that — if they don’t already hold clearance — they need to get their clearances stat.

Still, it happened. It is the normal thing that should happen. Cannon set short deadlines for things to happen, suggesting that she’s not starting out by helping Trump delay.

So, amid widespread concern, but also given evidence that DOJ is treating Trump with great deference, Cannon did something normal.

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46 replies
  1. Margo Schulter says:

    Maybe this is a fine illustration of what I might call bmaz’s law: “If your worst enemy isn’t treated as below the law, but is afforded ordinary due process, there’s a human tendency to perceive that one’s worst enemy is being treated above the law. But resist that temptation as you value your liberty and constitutional safeguards!”

    • BRUCE F COLE says:

      What must be said about Cannon is that she placed my worst enemy above the law, by fabricating out of her beautiful mind a special law that allowed him to control the valuable, critical, dangerous documents he stole from my American government.

      As bmaz points out, she’s not clueless about the law. She got high honors wherever she attended since high school. She was a fucking USA for crissake. She knows how courtrooms work, both scholastically and work history. It’s all she’s done, law is.

      So she understood exactly what the Circuit 11 panel who sandblasted her for the Special Master disaster were driving at when they wrote:

      “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 seperation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisidiction, and that dismissal of the entire proceeding is required.”

      And then follows their VACATE/REMAND/DISMISS order.

      This judge didn’t just fail, she twisted the fucking law to her Federalist proclivities. She should be looking for work.

      Is there a public copy of the chief judge Pryor dismissal of the judicial complaints lodged against her a couple months following this excoriating decision? He did it very deftly, nary a ripple. I would love to read the text of those complaints. Framing a case for her dismissal from the judiciary would be a cakewalk, so I’m assuming that at least a couple of them are coherently damning.

      And on top of everything, there she sits violating, as we type, the primary judge-recusal rule in 28 USC 455:

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

      She is currently in violation of the US Code, this very minute.

      I’m pretty sure, at this point, that Pryor has put her in there to behave like a normal judge in order to save her career. She should instead be hauled up before a Judicial Conduct and Disability proceeding.

      https://www.uscourts.gov/judges-judgeships/judicial-conduct-disability

      That she still sits, and even presides, at this moment — in perhaps the most critical case in US jurisprudence that relates to the bedrock governing principles of our republic — is the very definition of travesty.

      And those are the very principles she just attempted to desecrate, and got nailed for violating them egregiously.

      • bmaz says:

        Is it possible for you to be more concise? Because, even scrolling on a computer, your comments are seriously over long. Then imagine that on a mobile device. Curb your roll.

      • BRUCE F COLE says:

        “She was a fucking *A*USA for chrissake.”

        Forgot to carry the decimal. Or it was a rounding error. I forget which.

  2. Southern Exposure says:

    Even if Cannon intends to eventually go in the tank for Trump, it is clearly in her best interest to make impartial decisions or even slightly favor the DOJ at the outset. She is definitely not stupid and knows there are a significant number of folks who are expecting Trump favoritism from her. The only way an eventual decision on Corcoran’s note, a dismissal, or a non-jail sentence can have any credibility would be after she has restored faith in her impartiality.

    The problem Cannon represents is that, given the history here, any decisions she makes are subject to claims of bias. If she finds in favor of Trump, it will always be seen through the lens of her previous decisions. If she finds in favor of DOJ, Trump will say she is working against him to “balance the books”.

    Given this obvious problem it would be better for America and the judicial system if another judge with no record on Trump cases took over (even if the random reselection results in a Trump appointed one since we can reasonably assume that is not a basis for bias – or at the very least we should).

    Setting aside bmaz’ fairly persuasive case that Cannon should not recuse and will not be removed – I don’t doubt the reasoning – it is clear that it would be better for America if the cloud that Cannon brings were removed from the case. In the question of whether breaking from the norm of random assignments in this one instance or allowing such an important case to go forward with this stench, I don’t think there is much doubt which represents the lesser evil. Perhaps the 11th Circuit will see it this way as well, but bmaz has convinced me that the institution may well view reassignment as the greater issue.

    • PJB2point0 says:

      I just heard a trial lawyer who practices before SDFL on a podcast speculate about the possibility the Chief Judge decides that because Cannon lives in Ft Pierce and the most secure federal courtroom in the district is Miami, she may for “administrative” reasons, remove Cannon in favor of much more experienced and closer judge. I think the commenter’s name was Michael Popok. Is this a credible possibility or is he blowing smoke?

      • bmaz says:

        Is it possible? Maybe. Appropriate? Not sure about that. And not sure why any CJ would do that.

        Beware of the TV attys at this point, and it will only get worse.

  3. Randy Baker says:

    Three cheers for normal! Let’s hope she keeps it up. Were she among the folk, and I know nothing about her other than what is public, expecting Trump to become president again, she could be thinking protecting him in this case would get her a spot on the Supreme Court.

  4. IainUlysses says:

    If I’m reading this right Nauta needs a lawyer that can practice in the district, has — or can obtain one quickly —an appropriate clearance, and that Nauta can afford because the Trump paid for lawyer doesn’t fit the bill? That seems like a very tall order.

    (If I have posted before under a different name I apologize in advance. My usual choice is < 8 characters.)

    [Moderator’s note: Is there a chance you’ve commented under a different email address? I can’t find a previous comment attached to the email address you used with this one. Let me know by reply to this comment. Thanks. /~Rayne]

    • IainUlysses says:

      Just barely possible but highly unlikely. Far more likely that I kept scrolling, found what I was looking for, and kept lurking.

      I’ll just keep using IainUlysses as a handle then.

    • Ruthie2the says:

      I assume, perhaps incorrectly, that any additional lawyer(s) hired to represent Nauta will also be paid by Trump, since their fates are tied in this case.

      I do wonder, though, if the difficulties you describe might make Nauta more likely to plead. That’s a lot of pressure for a person of presumably average means to withstand.

  5. loveyourstuff says:

    I often tell myself, as many times a day as is necessary, that “nothing is as bad as it seems.” Marcy just showed that Cannon did something normal. Cheney, at Politico, gives a heartening review of Cannon’s bench rulings. SCOTUS has pretty much consistently ruled that GJ prosecutors aren’t restricted in their evidence gathering, providing there was a valid warrant that set off the investigation, therefore the Defendant’s intended motion for dismissal based on Defendant’s cries of prosecutorial misconduct will not see relief, Cannon or no Cannon. Although, after trial, if the court of appeals finds that there was GJ prosecutorial abuse, and the abuse must be systemic or must be of the nature that shocks the conscience, the Defendant can ask for attorneys fees, as, if I remember correctly, was granted to Sussman for Durham’s prosecutorial abuse. And, in the interests of balancing the protection of national security and the Defendant’s Sixth Amendment rights, Section 7 of CIPA provides rather rapidly-decided interlocutory appeals. All in all, nothing is as bad as it seems. Chins up, my fellow commenters.

  6. jdmckay8 says:

    I’ve read your “THE MAR-A-LAGO INDICTMENT IS A TACTICAL NUKE” I don’t know how many times, trying to understand clearly why/how you concluded this is TACTICAL NUKE, and what my follow.

    I’m a student here, do not have much to add (just TY).

    2 things still nibble at my brain, and I haven’t seen them answered clearly here or anywhere else.

    From everything I’ve read, in circumstances like these (compromised secrets putting people/methods etc. at risk), the affected agencies take appropriate action: get assets “out”, terminate programs & whatever else needs to be done. And they do it fast.

    In TACTICAL NUKE you said:

    “(…) another spook describing collection programs the government had to shut down because of Trump. In fact, last September, DOJ suggested they had had to do just that by invoking a letter NSA Director Mike Rogers sent in sentencing Nghia Pho.

    With this in mind, I’m a bit baffled nothing is being said (that I’ve seen) from anyone about the documents that seem to have disappeared on their way to Bedminster. It just seems like this should be very high priority, especially given (I assume) gov doesn’t know what those docs were. I’m really curious about this silence. And… what could flow out of this (compromised stuff) legally in terms of additional charges, or more severe sentencing (???)

    The other thing: Parlatore has said repeatedly last couple weeks that there will be a challenge to overriding Corcoran’s attn/client privilege, and that would make all (or most) of what Smith got from Cocoran inadmissible. Is Tim blowing smoke? I saw him in one interview making up stuff to make his position seem more convincing.
    So I view him with suspicion.

    Arghhh….

    • Matt___B says:

      My thesis: Parlatore, now greatly relieved at being off the hook legally for official Trump-representation, has now returned to his natural instincts of smoke-blowing. It’s a cheap way of showing loyalty while smartly not walking that walk. I smell a Parlatore book in the near-future!

    • David F. Snyder says:

      I don’t see that much is needed to show Trump’s duping Corcoran. The picture can still be painted pretty plainly using the security tapes, Corcoran’s plane tickets, the affidavit timing and signature switch. Of course, it’s more damning if Corcoran’s notes are admitted as evidence. And if Nauta flips (he looked pretty unhappy in that Cuban restaurant), then all the better.

      • HankTheCat says:

        I wonder how many of Trump’s attorneys (or any hired gun) are memorializing all contact with him ala Comey. If only to CYA at worst or if they later want to write a book. Donald only has himself to blame.

    • loveyourstuff says:

      Curious about the answer to your question, I did a quick search for 11th circuit decisions on the crime-fraud exception to which you refer. I’m not an attorney, but I play one on this site. From a 2018 ruling in Drummond Co. v. Conrad & Scherer, LLP, the 11th circuit cites the legal criterion for applying the crime fraud exception:

      “First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel’s advice. Second, there must be a showing that the attorney’s assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it. In re Grand Jury Investigation, 842 F.2d at 1226.”

      Since this case is being heard in the 11th circuit, the Defendant will lose on this motion to suppress Corcoran’s testimony and notes. Parlatore had me going too–about the Defendant’s intended motion to dismiss based on alleged GJ prosecutorial misconduct. I read a 50-page treatise on GJ prosecutorial independence and realized, as hopefully you will, that Parlatore is playing to the masses, not to those like yourself who care enough to seek factual answers.

      [FYI – blockquote tags added to improve readability. If you don’t know HTML, please use line returns/paragraphs to break up long text blocks. /~Rayne]

        • loveyourstuff says:

          Hi to you, too, bmaz. Paragraph breaks vs. BREVITY? Even though you stress BREVITY, in the interests of clarity, I’ll go with paragraph breaks. Thanks for the head’s up.

      • loveyourstuff says:

        Thanks, Rayne for the edit and the advice to use returns–because I do not know HTML. Hell, I don’t even know how to take a picture with my Android or text.

      • Susan D Einbinder says:

        Short (stupid) question: If the crime exception is thrown out, can Corcoran voluntarily testify without threatening his license? You know, to save the country and all that ….

        • earlofhuntingdon says:

          No. The A-C privilege belongs to the client. Violating it without permission or by force of law (eg, the crime-fraud exception) is malpractice. A violation would most likely lead to sanctions. Trump would insist on it. Corcoran could still testify, assuming Cannon would let him, but he would face those sanctions, an improbable course for a defense counsel.

          To the extent it’s been published, the information is “out there,” but under your hypothetical, Cannon would not let it in as evidence.

        • bmaz says:

          Absent a court order, Corcoran should say nothing affirmatively. On TV or in court. There is a process to get there, but you never just go yak.

  7. chrisanthemama says:

    Maybe this is a quibble, but how do “forthcoming attorneys” (who have presumably not been selected/identified) contact the Litigation Security Group of the DoJ by /tomorrow/?

    • Peterr says:

      I believe that technically speaking, if Nauta has not yet been arraigned, he may have an agreement with a lawyer but the lawyer is not on record with the court in this particular case. The arraignment is the initial appearance, at which lawyers announce themselves as counsel for the defendant. Until that happens, these would be considered forthcoming attorneys, to match the forthcoming arraignment.

      I think.

      • bmaz says:

        Yeah. You are on the record when you formally announce so in open court or file a notice of appearance. If you walk in and do it live, they still want you to file the formal NOA.

  8. Fraud Guy says:

    I thought this would have a line that Cannon is having a “normal one”, but realized that that would be Trump most days…

  9. Brumel says:

    Maybe not only Jack Smith would prefer to get a plea agreement with Donald Trump – might not Aileen Cannon have good reasons of her own to prefer such an outcome?

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  10. Marc in Denver says:

    Another consideration (probably minor, but who knows): her law clerks. If I had been the one who did the heavy lifting on the stuff that got slapped down by the 11th Circuit, and hadn’t gotten fired or permanently assigned to review Pro Se habeas petitions, I would want to make sure I didn’t embarrass my judge again. And law clerk turnover season is coming, too.

    • bmaz says:

      “…permanently assigned to review Pro Se habeas petitions…”

      Lol, yeah you would not want that duty. On the other hand, clerks write what the judge wants them to write.

  11. CovariantTensor says:

    I’m sure Judge Cannon knows a great deal more than I do about handling a load of evidence, some of which includes documents alleged by the government to do great harm if viewed by very many people. Could the special master thing be an honest misstep owning to her inexperience in dealing with this type of case?

    The thing that astounded me in her opinion, on the other hand, is her assertion that unlike what everyone else was incanting and genuflecting over (and Jack Smith reiterated in his speaking indictment), that nobody is above the law, a former POTUS does indeed require special consideration under the law. Amazing!

  12. Konny_2022 says:

    The DOJ moved for a protective order to provide unclassified, yet sensitive discovery to the defense; https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.23.0_2.pdf.

    Cannon issued thereupon another order (doc no. 25, https://www.courtlistener.com/docket/67490070/united-states-v-trump/):

    “PAPERLESS ORDER: Pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the Government’s Motion for Protective Order 23 is hereby referred to Magistrate Judge Bruce E. Reinhart for appropriate disposition. Signed by Judge Aileen M. Cannon on 6/16/2023. (sj00) (Entered: 06/16/2023)”

    Up till now: no delay.

  13. tje.esq@23 says:

    . . .answering Marcy’s question above, about Smith figuring out what Trump wants, that could be leverage in a plea bargain . . .trigger warning here regarding my delving into Trump’s psyche . . .one that some of us know all too well.

    The ‘Beautiful Mind’ wants *HIS* papers back! They are his friends… his ‘truth’… evidence of his (one time) POWER over the world. He thinks about them daily. And STEWS over the audacity of the government (those leftist, f***ing deep state traitors) raiding his home and ‘stealing’ *HIS* boxes.

    I haven’t dug in deeply to the PRA, to see if any docs, once sent to archives, can later be recategorized by archivists expos facto as ‘Trump-personal’ and returned, but if there is any wiggle room in the law, THIS is the lever that can turn. No classified, nor national defense info, evidence-related docs, etc. would be negotiable for return, of course, but the hoarder craves the companionship of his thousands of news clips, magazines, non-valuable t-shirts, and Celine Dion poster. CRAVES!

    The VALUE (to him) of getting them back? PRICELESS!

    Most folks who express utter bewilderment over Trump’s motive for taking and keeping this stuff, and exasperation over not giving it back when asked, appear to not have life experiences, nor book knowledge (?), about the early-life dynamics that shaped Trump and others like him, and that without therapy to overcome, continue to grip and control your life and every decision you make, until you are in the grave.

    If you haven’t read niece Mary Trump’s 1st book on this, nor walked it in your life, it might be hard to understand, or feel within the depth of your soul, that your entire survival, entire existence, entire meaning in life, is defined by winning the argument at any cost; never ever, ever being wrong on anything; never ever, ever making a mistake, and –God forbid! — never ever, ever being seen as a loser! You do? Therefore, you die!

    And my over use of capital letters, double words, quotation marks, and exclamation points will likely fail at implanting this horrifying dynamic into anyone not from this place. We are simply ‘forever 3rd graders’ to the outside world.

    Autonomic nervous systems are really hard to retrain even for those who spend years in therapy trying to. It’s a miracle to get to therapy in the first place, because the first step requires you admit something is wrong that needs fixing.

    Trump WANTS HIS PAPERS BACK — HE NEEDS them back — any number, at any cost! And burning the government and its institutions down to achieve this, is what his nervous system was corruptly trained to do.

    I am not trying to excuse or defend any of Trump’s criminal conduct. I instead offer here my ‘prayer for relief’ (for our country) tied to my unfortuneate understanding of Trump’s psyche: Please, Lord, place a therapy-recovered soul on Jack Smith’s team, who can help Smith navigate this. [Or, at least, have a team member who reads this blog!] Marcy’s instincts, demonstrated in her reply to Bears7485 comment on June 15, 2023 at 1:48pm in a post after this one are absolutely correct: Jack Smith could install the first fulcrum necessary to constructing a pallatible plea for Trump, by filing 18 USC 2071 charges in D.C. Ultimately, this task will involve Smith constructing a thoughtful pulley system, around multiple fulcrums, to generate enough (physics) force to turn this lever. It’s been programmed to be stuck, and its been that way for 60+ years.

    Trump needs his papers back. His beautiful mind cannot conjure the existence of life without them. And the perpetuity of his soul depends on it.

  14. punaise says:

    Some interesting nuggets from this Washington Monthly piece:

    How Delay and Recusal Might Save Trump

    The special counsel’s evidence against the 45th president is damning, but a trial delay and the status of Aileen Cannon, the Trump-appointed judge rebuked for MAGA-favorable rulings in the FBI raid on Mar-a-Lago, may let Trump go free.

    The way out for Trump is “no trial, no conviction.” …[by] running out the clock… until after the election. Then, if a Republican is elected (either himself or someone else), he has an excellent shot at being pardoned, or, to the same effect, the new president will order the new attorney general to dismiss the charges.

    Trump may have another get-out-of-jail-free card. So far, the case has been assigned to the Honorable Aileen M. Cannon, a Trump-appointed United States district judge who presided over proceedings following the search warrant executed last summer

    Smith gambled on Florida, where a venue motion is untenable, to avoid the delay involved in such a motion, knowing there was only a 1-in-26 chance he would land Cannon.

    Smith has to be concerned about clock management. For starters, he may want to try to remove Cannon from the case for bias. By statute, a federal judge must recuse where their impartiality may “reasonably be questioned.” But…recusals from jurists are rare. And, if Cannon won’t recuse herself, the Eleventh Circuit is unlikely to reverse her. Usually, a judge’s courtroom behavior doesn’t form the basis for recusal. The “bias” necessary to warrant recusal must be a personal or non-judicial bias, such as a relationship to the parties or a financial interest in the outcome…

    Given Cannon’s “previous views and findings” in the Mar-a-Lago documents case, she should step aside. There is too much at stake for “equal justice under law” that neither her court nor the Eleventh Circuit should stand for the damage that would come from her remaining in the case. But all this will eat up time. Does Smith call a run or a pass? Legal experts expect that Cannon will keep the case.

    I read elsewhere that it was 1 in 5 that Cannon would get the trial?

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