Jack Smith to Aileen Cannon: Treating Non-Lawyer Tom Fitton’s Theories as Law Will Lead to Mandamus
Both Trump and Jack Smith have responded to Aileen Cannon’s whack order to write proposed jury instructions as if the Presidential Records Act says something it doesn’t. Neither are all that happy about it.
Trump used his response to claim that having the jury assess whether Trump really did make these documents personal records rather than simply steal them would put them in the role that, he’s arguing, only a (former) President can be in.
Smith — as many predicted — spent much of the filing arguing that Cannon cannot leave this issue until jury instructions because it must have an opportunity to seek mandamus for such a clear legal error; they cite the 11th Circuit slapdown of Cannon’s last attempt to entertain this fantasy in support.
Along the way, though, Smith also did something I had hoped he would do: explain where, and when, Trump’s own whack theory came from in the first place.
It came from Tom Fitton’s Xitter propaganda in response to the public report, in February 2022, that Trump had returned documents, including classified ones. But even after Fitton first intervened, Trump’s handlers continued to treat any remaining classified documents as presidential records for months.
On February 8, 2022, the day after the Washington Post article was published, the president of Judicial Watch posted the following two statements on Twitter5
:Immediately after posting the second Tweet, the Judicial Watch president sent to an employee in Trump’s post-presidency office a link to the Tweet and offered to discuss the issue with Trump. A few hours later, the Judicial Watch president sent the same person his analysis of the case Judicial Watch v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That evening, the Judicial Watch president circulated to the employee a proposed public statement for Trump’s consideration, which included language that the PRA and judicial decisions gave Trump the right to keep the documents he returned to NARA. The statement never issued.
Around this same time, the Judicial Watch president, who was not an attorney, told another Trump employee that Trump was being given bad advice, and that the records Trump possessed at Mar-a-Lago should have been characterized as personal. The second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while President, whereas Trump had not done so. The second employee further informed Trump that the Judicial Watch president was wrong and explained why. Nevertheless, on February 10, 2022, Trump released a statement claiming in part, “I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.”6 Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.
Smith doesn’t, however, draw out the implication of this explicitly.
Not only has Trump been falsely suggesting — without evidence — that he did designate these documents personal records. He couldn’t have done so, because he didn’t know of this theory until over a year after he stole the documents.
But Cannon is such a chump that she has been chasing a theory spun up by Fitton, someone who has only an English BA.
Cannon may well respond poorly to Smith’s use of 20-some pages to lay all this out. It’s the kind of thing that routinely elicits miffed responses from her.
At this point, though, it seems Smith is simply laying a record for a challenge at the 11th Circuit.
Amazing that a judge on the bench for life could possibly entertain a concept so authoritarian as a president being able to snap their fingers and declare absolutely any document personal property. Strike that…a president doesn’t even have to snap their fingers, that would overly restrict the president’s authority by placing any kind of requirement at all!
I know this kind of case is unprecedented but this process is all so childish. Jack smith is going to be bald by the end of it.
What strikes me is how Jack Smith (and his team of course) spent the time to spell out the instructions, as directed, albeit with preceding language explaining in detail why scenarios (b) and (c) would be a mistake. The instructions seemed appropriate for a jury to understand with clarifying language, etc.
By comparison, on the Trump side, it seems like Kise and team chose to spend their time opining as to what, in their opinion, a “good” set of jury instructions would look like. But if they wrote up instructions, I must have missed those!
In summary, it seems like Smith turned in his homework while Kise turned in a meandering essay. Will Cannon reward Trump with more time to actually have his legal time write instructions? Or will she compliment Kise and team on their essay?
It all seems so weird.
Without in any way seeking to cast doubt upon the points you have made, I for one have not seen the exhibits to Trump’s response which are described in the main filing as verdict forms.
So it is not clear to me exactly what they have done which purports to be responsive to the Judges order for jury instructions meeting the scenarios.
I don’t doubt that these exhibits contain some sort of legal nonsense, but it would be of interest to see what sort of nonsense they have documented in them.
Here is the DOCKET
https://www.courtlistener.com/docket/67490070/united-states-v-trump/?order_by=desc
Thanks that is very helpful of you
I expected whacky and wasn’t disappointed
Exhibit A https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.427.1.pdf
Jury instructions
EV
See p 6 and fn 12,13 where instructions on ‘unauthorised possession’ include instructions on Presidents, Vice Presidents and other government officials not being prosecuted for retaining classified documents.
Tendentious seems to be a charitable characterisation of the lawyering in this document.
Thanks. I had missed those.
Well, Cannon has proved that she reads the defense filings as if they’re the sole source of truth and doesn’t really read — or perhaps more generously, acknowledge reading — the prosecution filings. Smith is now writing for the 11th Circuit, which will presumably read the prosecution filings.
You’re right, EricFromPA. Blanche and Kise did not bother to suggest alternate jury instructions.
Cannon won’t like Smith’s filing, as it rightly takes her to task for what seems like a naked attempt to torpedo the DOJ case.
I wonder, however, if Smith’s alternate jury instructions might just give her enough rope to hang them with. On p. 21 of Smith’s filing–in a paragraph perhaps intended to anesthetize the Hur report’s excoriation of Biden–DOJ proposes that jurors be instructed that classified information can lawfully be contained “within” personal records.
I winced reading that, given the Trump-Cannon team’s penchant for blowing through doors that have cracked open. Especially when Tom Fitton’s involved.
“that jurors be instructed that classified information can lawfully be contained “within” personal records.”
Well, yes. For example, Biden’s diaries are personal records that contain classified material.
Cannon is playing along with a false dichotomy here. She’s entertaining the claim that the records are “personal” under the Presidential Records Act, and therefore cannot be considered classified. This argument is nonsense at many levels. First, the records are obviously not personal. Second, Trump never claimed they were personal until after he left office, at which point he had no such authority. Third the PRA doesn’t empower him to simply declare any and all documents to be personal. And finally, none of this digression is relevant to the charge of taking classified documents. And obstructing justice by lying about their retention, how many he had, whether they were secured, and whether they’d been returned.
Smith didn’t give Cannon “enough rope to hang them with.” They complied with her order while first noting that it was not based on the state of law. You cannot seriously argue that the content must therefore be treated as their position.
They didn’t even charge him specifically for taking the classified documents (which were a set of actions that occurred mostly or completely in DC while Trump was still President). All of the charges against Trump in this case are about his conduct after he ceased to be President.
Counts 1 to 31 are for unauthorized possession of, and willful failure to return, “documents relating to the national defense” which is a category that can include non-classified documents too.
These 31 counts are for only 31 of the hundreds of documents Trump stole—presumably the ones that were the clearest examples of definite “national defense information” which the gov’t was willing to expose to the risk of greymail or other disclosure.
21 of those documents were marked as classified TOP SECRET (many also SI, NOFORN of SPECIAL HANDLING) and 9 of them were marked SECRET. One of them (count 11) was not marked as classified, but its description in the indictment reads “Undated document concerning military contingency planning of the United States”.
Just reading the one-sentence descriptions of these 31 documents in the indictment makes it clear that the idea that any of them could be a “personal record” under the PRA doesn’t pass the laugh test.
I was in no way arguing that, seriously or otherwise. My grasp of the situation matches yours. I was trying to read Smith’s brief through the mind of Cannon, looking for nits to pick for her increasingly biased-appearing purposes.
The fact that the language Smith used in that graph so distinctly describes the Biden situation made me wonder if its purpose was defensive–a goal whose aptness here I found questionable, for the reason that if you give Judge Cannon an inch she may well take a mile.
I found your comment very interesting. It is very difficult how American Federal Judge Aileen Cannon, after what everyone imagines was success in law school enough there was clerking, legal writing, and the apprenticeship to her position similar to medical residency in duration and scope. That’s the ethos of federal judge, so like you say how she could entertain the idea is very difficult to attribute. She is so “childish”. It’s “amazing”.
Please forgive me for reading things into what you wrote, HuntaurD, as one could psychoanalyze sentences, but maybe you can’t make yourself look straight into the shamelessness here. Cannon herself has clerks who know better too. I think the way taboos being violated is so shameless here that lawyers can’t comprehend it like a doctor wouldn’t comprehend keeping a patient open for surgical practice. The shamelessness is so strong in her misinterpretations of obvious matters of fact and law that this becomes a sign or a message itself, which must be intended, that Aileen Cannon is shameless. So is the majority of the Supreme Court.
The shamelessness in right wing legal circles towards truth and fiction also applies to GOP candidate communications and in the American journalistic coverage of all of this. I think the plainest way to say a great power rival has engineered fascist organizational culture and propaganda style onto the top of the GOP under the banner of a compromised game show host. They are a great old American political party, so we are seeing a lot of changes within the law and political culture.
Has the following changed?
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We reserve the right to ban other users as well (though have banned only a handful since EW became an independent site in 2011).
Reasons for banning include:
Repeated ad hominem attacks”
https://www.emptywheel.net/comment-policy/
Hi there, it is not “ad hominem” if the statement is absolutely true. And it is true. You, Sloth and Wetzel seem to think it is open season on me, well I fight back. Wetzel has done this relentlessly, even if his diatribe immediately above was just nuts as opposed to directed at me. This time. I don’t recall either of you oh so pious souls giving a darn when I was impugned, denigrated and attacked by a dope from somewhere else for being an American lawyer.
Funny how that is, I guess your indignation at “ad hominem attack” runs only one direction. Thanks for your continued support!
Some of us are smart enough to know comments like this are almost always projection.
She HAD clerks. It’s been reported that three of her clerks quit.
Reporting is that she is now fully staffed and has been for months.
wetzel, I need you to focus and be more concise in your comments. Topics like this post need less wordy philosophizing and more practical discussion.
Sure thing, Rayne.
I don’t suppose it’s possible for a writ of mandamus to force a judge to recuse herself? I guess that would be too easy.
(is there any way to get this case re-assigned?)
Almost none, no.
Marcy, first off, thanks for the blog. It’s a daily visit for me.
Have you covered why this case is stuck with Cannon?
I remember early on in the process reading an article that laid out having it re-assigned using her prior nonsense as precedent. Did the JD or Merrick drop the ball on this? Who DIDN’T see this coming?! The lack of strategy is bafflling.
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What has been discussed previously is that these judicial assignments are (or are supposed to be) random.
I think it’s natural for people to speculate that something happened behind the scenes to contrive her being put in this role, but there’s been no reporting or other evidence to substantiate that this was anything other than bad luck. At least none that I’ve seen here or other outlets.
No, it has been discussed here, and other places, that it was entirely predictable, given the caseload of active judges in SDFL, that the case would go to Cannon. That is why it was a mistake in the first place to file it in SDFL instead of DC, where the theft/conversion of records actually took place.
They didn’t want to charge him for the actual theft/conversion though, since he was still President at the time that occurred.
I guess they hoped to avoid opening the immunity can of worms for this case, by just charging him with retaining the documents after he’d ceased to be President (and the conspiracy to frustrate FBI and grand jury investigations, obstruction for trying to delete evidence, etc). But Trump was eager to open the immunity can anyway.
I wonder if they could have charged him in NJ because at least some of the unlawful retention involved documents being flown to Bedminster and Trump sorting through them there?
But Smith’s team has seemed determined to follow the rules (in spirit and not just the letter) and I guess they felt most of the conduct was in or related to Mar-a-Lago and that was the proper venue.
[Edit: he retained hundreds of documents, and they only charged the 30 or so “most clear examples” of National Defense information, which they were willing to expose in court to graymail efforts etc., and all of them highly classified except one single document that I assume they charged to help make the point that docs can be NDI independently of whether they are, or were, classified.]
Lol, no he was not “still President”. the pack out of the WH happens during the inauguration. Once the documents were on a truck and left the WH, the crime was complete. As was the crime as to your described NJ documents. Did Smith “follow the rules”? Meh, if so with a great deal of unnecessary stupidity.
Donald Trump AS president left the White House and took off on Air Force One at 9 a.m for the final time en route to Florida, Jan 20, 2021.
Air Force One landed in Palm Beach a little before 11 a.m. Trump would only be President for about another hour as they disembarked and the motorcade departed for Mar-a-Lago, his private club in Florida.
President Biden did not become president until 12:00 PM on Jan 6th.
as such your facts you claim are incorrect.
The packing donald trump did, he did as president.
He traveled as president to Florida.
I am not a lawyer, however as the president I am not sure of the legal status of what he did BEFORE 12:00 Jan 6th 2021. All of the actions he took in Washington DC occurred before the exact time.
https://correspondent.afp.com/my-last-trip-trump
Bullshit. It is when vehicles, i.e. trucks, left with the pertinent purloined documents at Trump’s behest. The crimes were committed in the first instance in DC. I am a lawyer, know how and where crimes, especially conspiracy related ones, and have thought through this for a long time.
Fine since you are a lawyer and claim what he did was against the federal code, IE against the law.
Could you please point me to the relevant codes he violated. Also to any case law a prosecutor could use to determine when and how a sitting president would be in violation of the federal code?
Also has any case law been argued to the Supreme Court that you know of to help settle trump’s obvious claim of presidential immunity of his actions while the duly constituted president of the united states?
Also since the trucks were obviously loaded before Jan 6th, 2021, I wonder what their exact location was at 12 noon Jan 6th 2021. That would be the time donald trump was no longer president, and any claim of presidential immunity would no longer have any merit.
If the trucks were no longer in the jurisdiction of the DC circuit, would they be the court to file?
Is there any case law to help any prosecutor to determine if actions taken personally by one president become illegal when his successor became the sitting p[resident?
How would immunity be dealt with in this situation??
Thank You in advance
EDIT sorry rayne for the double post, while I tried to edit the first
PS: I also did not stay at any Holiday’s Inn last night.
The very crimes he has been charged with. And, no, I am not your research monkey and this has been discussed here for a very long time.
NO the exact questions as to what the exact parts of the law the SCO would use to charge donald trump in DC for actions while he still occupied the office of the president, have NOT been discussed.
Nor have the questions of immunity for those actions been discussed, nor have they been adjudicated in and court of law I can find.
He is charged with
1. willfully retaining national defense information in violation of the Espionage Act,
A sitting president I do not think could be charge with that, any private citizen of course could be. How do you split his time in office against his time after?
How do you deal with immunity?
2. making false statements,
Didn’t occur in DC
3. obstruction of justice,
Didn’t occur in DC
4. and conspiracy to obstruct justice.
Possible, however again, in DC he was the sitting president, only after his arrival in Florida does he become a private citizen again.
How is the immunity question going to change if his time/actions in DC are included.
I see no REAL discussion of any of this here, just remarks like below.
@Phaedruses
1 venue for continuing criminal offence
18 USC s 3237
“any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.”
2 Trump’s presidency ceased at 12:00 noon 01/20/21
3 at that moment he was not entitled to the possession or control of property of the US whether the resolute desk or NDI documents.
4 at that moment all such property which was ordinarily and legitimately housed at the WH should have been in a place to be turned over to the Persons entitled to receive them, which included but not limited to the incoming President and other government officials in DC.
4 Whether the property was removed in the days prior or on the day of transmission of power matters not. The removal was done in the knowledge that the lawful possessors of the property would be deprived of it at the time they were due to take possession of it.
5 immunity is inapplicable, because amongst other thing these offences are offences against the vesting clause.
6 The crimes began in DC, even while Trump was President, at least in the sense that all the necessary steps were taken to prepare the offence. The offence was completed at noon. And the offence continued through every district through which the property was conveyed and remained under Trump’s possession or control.
7 These issues have been debated many times going back to when questions first publicly arose.
8 False statements and obstruction : these are process offences committed in relation to the investigation of the underlying crime, and as such are subject to investigation and charge in the district having jurisdiction.
9 I do not pretend to speak for bmaz; I believe we share common views on this stuff, though he is the professional and as a not entirely unschooled observer I defer to him
Dear Phaedruses: SteveBev did a superb job of answering your nonsense. And, yes, again, this has been discussed here and elsewhere since the jump.
1 all the documents charges are specified for dates commencing 1/20/21
2 therefore the prosecution believes it can prove wilfully- for the entire period
To prove Trumps intent they rely on all the conduct during the time the documents were in his unauthorised possession and/or control including lies and hiding the documents
3 refusing to return is evidence of wilfully
4 s793e does not have as an element of the offence request/demand for return
Compare and contrast
S793 d
5 if demand for return was an element of the offence contrary to 793e then the date for the offence would be specified from the date of the demand as it is for s793d
See model jury instructions 2017
p120 s793 d
120,121 s793 e
Compare the alternative fourth element in each
https://www.govinfo.gov/content/pkg/USCOURTS-ca4-16-04226/pdf/USCOURTS-ca4-16-04226-0.pdf
The 4th element of s793 is retaining and failing to deliver etc
Recall venue depends on any place it was begun, completed or continued so the evidence to prove the elements of the crime may be found in different places. Just because the documents were found in MaL does not mean that is where the crime began, nor indeed that was where the crime was completed.
Furthermore interpreting the element
‘retention and •failure• to deliver to an officer entitled etc’
As requiring refusal
1 converts
a. the omission to take proper steps
into b. positive decision to respond improperly
2 this unduly narrows the coverage of the statute and the duties imposed by it
3 and if 1b is accepted then this creates the defence of
“Whoops, I found the document in a box and then immediately burned it”
I actually agree with you, but bc FL is the only place they can prove the elements of offense. Those are:
Willful retention (they can’t prove it until the curating in November 2021 started)
Refuse to give it back (happened in January and June 2022, in Florida)
This had to be charged in Florida. Maybe not in Cannon’s courthouse. But there was no way to charge this in DC.
Here’s where I wrote that up:
https://www.emptywheel.net/2023/06/15/no-crime-alleged-in-the-mar-a-lago-indictment-occurred-in-dc-other-crimes-did/
“Also to any case law a prosecutor could use to determine when and how a sitting president would be in violation of the federal code?”
There is literally nothing in the federal code that exempts the President from any criminal prosecution.
The DoJ has a _policy_ against investigating such crimes, to its shame. It dates to the era of Nixon, when he was desperately trying squirm out of the Watergate scandal by ordering people to not investigate. As a legal theory, it hasn’t been tested.
Indeed, there is precedent of Presidents being charged with misdemeanor: Ulysses Grant was charged with speeding his horse-drawn carriage while in DC. At the time, nobody dreamed of the idea that a President would be above the law.
The theory of Presidential temporary immunity from criminal prosecution during his term of office goes back at least to Justice Storey treatise.
Advocates of presidential immunity will sometimes point to Justice Joseph Story’s 1833 Commentaries on the Constitution, in which he says: “The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” But Story appears to cabin this proscription to “civil cases at least” in order to prevent nuisance suits from disrupting a president’s ability to carry out his daily Article II functions
And they had no evidence, at the time, and probably still don’t, that would allow getting a search warrant for Bedminster. Are they going to tell the court, “we know boxes went there from Florida, but we don’t know what’s in them”? That won’t work.
Not being trained in law, and having missed the instances where the topic was covered here, I too thank SteveBev for the explanation (and for some reason some of the appropriate reply to links are missing, confusing this thread). 18 USC s 3237 would seem to cover it all, and deflate the argument that there would have been a venue dispute had Smith filed in DC. Even if there had been, it would have been brief, and the resulting delay much shorter than trying under Cannon.
I had hypothesized, and maybe mentioned here, that Smith may have strategically chosen to file in a pro-Trump state because a jury verdict against him there would appear more legitimate to the public. I was probably wrong but if right, the cost/benefit calculus does not seem to have worked out.
Ironically, given what would normally have been an intensely embarrassing put down by the 11th Circuit, local rules assigned this case to Cannon, in part, because of her prior familiarity with the parties. LOL.
I’ve heard this here (on this site) a bunch of times, but I have seen it claimed elsewhere that the prior experience she had was not a factor in her selection. And I can’t find any actual evidence either way, just naked assertions. Do you have any?
That was my recollection from reporting in June 2023, when Cannon was assigned the second Trump case. Like you, I can’t now find a cite for it.
I found one source that says the opposite with assurance – as opposed to repeating what came over the wire – that Cannon’s assignment was blind and random.
It’s the only source that specifically mentions that local federal court Internal Operating Rules (IOP 2.01.01(a)) allow the chief judge to modify assignments, “in the interests of justice and expediency,” but which refutes that any such modification took place here.
https://thedispatch.com/article/judge-aileen-cannon-and-the-trump-criminal-case-explained/
https://www.flsd.uscourts.gov/sites/flsd/files/1-2-24%20Internal%20Operating%20Procedures.pdf
Is it possible for the circuit court to remove her without a request from SC?
Yes, but she is not going to be removed, people need to accept that.
Even with this latest nonsense of hers? This still wouldn’t be enough to boot her?
I believe the controlling 11 Cir precedent is
U.S. v. Torkington, Eleventh Circuit
Jun 7, 1989. 874 F.2d 1441 (11th Cir. 1989)
https://casetext.com/case/us-v-torkington
Discussion of reassignment p 1446
3 fold test for reassignment when there is no actual bias [but the issue is whether there is a reasonable perception of lack of impartiality ]
set out p 1447
Why are you certain she won’t be removed? She’s inventing new law left and right.
Because been there and done that.
Why are you so sure that when you turn the steering wheel to the right, the car will turn in the same direction – except, perhaps in a Tesla?
Almost none based on precedent, but Trump is unprecedented. How do jurists who grew up and lived their whole lives, cutting their teeth on precedent react to the unprecedented? Maybe we won’t know until we know.
Re-assignment isn’t impossible, but it does require “extraordinary” circumstances. It apparently happens several times per decade in the 11th circuit. See https://storage.courtlistener.com/pdf/2006/07/11/USA_v._Michael_Martin.pdf and in particular section V (pages 31 and 32).
(Admittedly nitpicking, but) By definition, if it were forced it would not be “self-recusal.”
Nice to see the SCO get all of this onto the record. This record is going to look pretty bad for Judge Cannon if she ever makes an actual order that SCO can properly appeal.
Which will happen eventually, but she’s managed enough delay so far that it doesn’t seem possible anymore to try this case before November.
Sometimes I wonder what she really thinks about all this.
At this point the best we can hope for is for her to not step on Chutkan’s trial timing of mid/end of summer.
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Judge Chutkan is not going to allow her case to be held up beyond the SCOTUS opinion she is awaiting. Cannon can play hide the ball, but will get no participants.
The SCO complied with Cannon’s order to propose jury instructions for her two scenarios, though they protest them as “legally incorrect”.
But their proposals are darkly hilarious, especially for the extra-egregious Scenario (b):
The way they dealt with the Cannon scenario instructions was quite elegant
SC clearly identify the proper instructions and then repeatedly use
“I instruct you” “I further instruct you”
as clear identifiers for what would be her departures from the accurate requirements of the law.
It makes it very difficult for Trumpists to selectively quote from the filing, as is their wont, and so manufacture claims the SC ‘engagements with the scenarios’ contain what amount to concessions in argument.
I think that’s called teeing up an appeal.
Yes indeed.
But also as I flagged elsewhere in the thread https://www.emptywheel.net/2024/04/03/jack-smith-to-aileen-cannon-treating-non-lawyer-tom-fittons-theories-as-law-will-lead-to-manadamus/#comment-1047077
where Team Trump in their filing misrepresented the SC factual allegation of the documents being removed from the WH, as if it constituted a concession to the Trump novel and bogus theory of the case.
Shorter version of that passage: When a President does it it’s not illegal
Suggest change: “When a Republican President does it it’s not illegal”
It’s not hard to figure out. She’s a Trump supporter all the way. Basically look at how she inappropriately took on an early appeal by Trump to quash. That attempt was shot down in flames by an appeal to the 11th Circuit.
She’s a Federalist Society member, and when they decide that it’s time to stop backing TFG, she’ll do that.
People go in endless circles on this forum trying to attribute Judge Cannon’s behavior. Attribution in social psychology is a big problem. Social psychologists make hay about how it reveals everyone’s biases, not whether anyone is correct which is unsolvable. Any attribution you make isn’t a claim that will be satisfactory to this forum. It will only be an unsupported claim, but attribution is how human beings interpret behaviors. We can’t make sense of Cannon without doing it.
The “fundamental attribution error” in social psychology would be to attribute Cannon’s behaviors to dispositional factors instead of situational, and some say she is “stupid” or “ill informed” but here on emptywheel we are deep in with the Trump conspiracies. Maybe we are prone to the opposite direction. Maybe it’s not a good idea to spend so much time here. You start to see the mahogany eating clubs of the Federalist Society or Putin’s GRU all the time.
Earlier in this thread, bmaz seems to imply there were dispositional and situational factors underlying Judge Cannon’s potential rulings making it a mistake to bring charges in this circuit, but he doesn’t give any other reasoning. One clear thing from the arguments Hunter’s team is making with Weiss and their potential for success is that to claim political motivation for a prosecution in the context of trial proceedings has very difficult criteria to make an effective argument, and it seems even harder to do this for a judge so all of this is just talk, basically, our opinions.
Some comments here do go in endless circles.
You won the internet today!
Sometimes causation is difficult to pin down because the confluence of multiple factors, in this case situational versus dispositional, require sorting and weighing the proportional effects of what we perceive to be the variables.
That’s not entirely clear yet. We really do not know very well what is motivating Cannon here, where her loyalty may have been or is now or will be later. What we do know is that Trump referred Cannon for her judgeship and she was confirmed by the Congress soon after the Nov 2020 election and prior to his leaving office in 2021. And that SDFL is where Mar-a-Lago is.
“We really do not know very well what is motivating Cannon here, where her loyalty may have been or is now or will be later.”
I’m pretty sure we do.
I am pretty sure you have no clue.
This:
Considering that the MAGA tribe and Dominionists think that Defendant-1 is an omnipotent messiah, time travel and pixie dust are child’s play for him. It’s the only way to explain the logic.
Fitton’s ideas and input into the decision process seems to become more important by the day. Is there a way to hold him accountable for practicing law without a license?
To strive for accountability requires knowing who the Dominionists’ strongest political backers are. And, that effort won’t succeed because it requires media and bloggers to engage in the mental work of, “holding two thoughts at one time.”
One thought -There’s a religious sect that has as members, Biden and other Democratic politicians. Note to media- liberals are a minority in the sect and have no access to the Church’s vast political spending.
Second thought- the power structure that attempts to destroy democracy, for example, dioceses spending $900,000 in Aug in Ohio for a GOP ballot issue, is the Catholic sect. Tom Litton quoted Pope Benedict on the Twitter platform,
” Many have a limited idea of Christian faith (as a) mere system of beliefs and values….”
Media perpetuates the fraud of a liberal American Catholic Church.
CBS News, last Sunday, had a religious segment- seats a Black Catholic bishop (a definite minority in the Church) next to a progressive woman clergy, for an interview, creating a sense of the two sects’ congruity of values. The Catholic Church should get the highest awards for PR messaging.
I’m not Catholic myself, but why do you single out “the Catholic sect”? Protestant fundamentalists, who form the foundation of the Dominionist movement, are at least as–if not more–responsible for supporting attempts to destroy democracy. (Also, the so-called “prosperity gospel” embraced by sanctimonious, performative Christians in the GOP to justify cruelty to the poor isn’t based on Catholic social teaching.)
Unlike “performative Christians”, the right wing Cath. Church speaks softly, carries a big stick. Religious sect of the SCOTUS GOP jurists?
Extrapolate–(1) recently, state rep. Phil Jenkins rejected free school lunches because,”God assigned charity to the Cath. Church,”
(Gratis of taxes- Cath. organizations are the nation’s 3rd largest employer).
(2) Cath. Conferences lead state legislative campaigns for taxes for private schools. The Colo. Cath. Conference’s executive director was formerly with EdChoice and the Koch network. (3) Robert P George wrote the Manhattan Declaration, signed by the bishops of 15 major cities. (4) John Eastman was President of George’s National Organization for Marriage. Paul Weyrich, who co-founded the Heritage Foundation, ALEC and CNP was right wing Cath. as is Leonard Leo of the Federalist Society.
The NYT’s omitted that Ron DeSanis attended Cath. K-8, Josh Hawley, Cath. H.S., the Hallow app is J.D. Vance’s.
Citations, please. You know by now claims need supporting documentation.
Also the argument about Catholic organizations as 3rd largest employer is NOT the same as the Catholic Church being an employer.
While I understand the Catholic Church is your bête noire, you’re using an extremely broad brush when there’s clearly a schism between Pope Francis and the U.S. Catholic Bishops as just one example. Your personal focus on the Catholic Church also ignores the role of Mormons and Dominionists in shaping U.S. government especially the judiciary.
Idle curiosity- the Oho Business Journal’s report about the $900,000 spent in Ohio and the $14 mil. spent between Kansas and Ohio, does knowing the citation alter the readers’ desire to ignore or minimize?
At its disposal, the blog has censorship, either in entirety or by number of words. Have at.
Extensive footnotes, e.g. David Kertzer (the Popes and Hitler and Mussolini), McConahey (Koch and the Church), Kent State University Press (Catholic Confederates), Cushwa site (the Church as the first and largest corporate slave owner in the Americas), the Boston Globe’s Spotlight (17 years after priest abuse exposed by National Catholic Report), Wikipedia (Charles Uncles), Scielo (“….Laicism in the Crosshairs”). And, without footnotes, Prevail’s Greg Olear podcast interview with Tom Carter (evangelicals are the foot soldiers for the right wing Catholic strategists getting the wins), Federalist Society article (a non-apology for the Crusades), etc.
correction- Ohio Capitol Journal
Look, you’ve been here long enough to make more than 84 comments. You should already know by now that making quantified claims requires backup. Cut and paste links to sources if online. Be specific. Swagging your citations by waving your arms in the general direction of persons but not their works is bullshit.
As for your claim this “blog has censorship”: OMG, you’re a victim because you’ve been asked to provide specifics community members here can read which bolster your claims? Oh you poor thing, tormented for +84 unfettered comments printing your screeds against the entire Catholic Church!
If you don’t like being held to this site’s standard, you can exercise your free speech rights by posting at your own blog. Knock yourself out.
An outline is not an argument. A litany of purported sources, without links, is not support for an argument. A phrase is not a readable sentence.
It’s easier for readers, if you break up longer thoughts into a series of short comments. And it’s always good not to piss off a moderator. Consequences for that, if any, are on the commenter.
A 100% win for you- no more inconvenient truth to displace your bias. The political wins of the American Catholic church and its powerful right wing allies and members against women, gays (e.g. Biel v. St. James Catholic school), taxpayers (e.g. St. Isidore’s charter school in Oklahoma), etc. swept under the rug- de rigueur.
B-T
Citations for claim, “at least, if not more”?
Political spending amounts, voter mobilization apparatuses, lobbyists on payroll, etc.
What is the size of the right wing, protestant, political parallel for the bishops’ political arm, the Catholic Conferences?
In political stature, are there more Catholic bishops or protestant clergy who can get a scheduled appointment with lawmakers to advance their agendas?
I don’t think hot takes count as practicing law, unless you start off by saying “I am an attorney and this is my pro bono legal advice.” The thing is though, most hot take artists usually see their lack of formal qualifications as a feature, not a bug.
To use an old saw, free legal advice is worth what you pay for it.
“Accountability,” ….not for Fitton, not for state GOP senators in Nebraska.
Democratic state senator Michaela Cavanaugh asked for punishment for the (now apologetic) Sen. Steve Halloran. (The vote of fellow senator, John Lowe, supported Halloran).
Public Relations Teflon- the Nebraska Catholic Conference can use its site/Facebook to feature Catholic GOP, White male senators when they advance the religious sect’s doctrine on the senate floor. But, media is forbidden, on any occasion, from identifying the senators’ membership in a sect/organization that denies leadership roles for women, even when harassment and a toxic environment for women is alleged to occur, at their instigation, on the senate floor.
I think the contention is (as the SC’s parodic formulation drolly exposes) that the retention of presidential documents through the president’s transition to former-president status automatically converts them into personal records. Whether Trump had entertained this idea before retention is irrelevant. The mere act of retaining, even if passively or negligently done, is tantamount to reclassifying the documents as personal, which reclassification encompasses declassification of everything, a kind of bleaching process if you will, in their reduction to “personal”. While not explicitly stated in the statute, these powers of retention are inherent in the absence of an explicit denial of them in the text, the act’s prohibition of retaining presidential papers notwithstanding.
However, there is still a legal process to declassify, including in some cases laws that require external (i.e. NRC) explicit approval even if the POTUS is the one declassifying some item. Documents of that type were also shanghaied to M-a-L and likely other properties for graymail or sale purposes.
So, the idea that Defendant-1 could do this all on his own is bullcrap.
Without googling for the details, I’m remembering press reports on the indictment that at least one Mar-a-Lago document was a “Restricted Data” document, a classification used for nuclear weapons information, and that only the Department of Energy can declassify those documents. So if I’m remembering correctly, for at least one document, whether Trump thinks he declassified the document isn’t relevant, unless there’s a paper trail that leads through the Department of Energy.
Smith’s response cited Executive Order 13526- Classified National Security Information more than once. Reading that order a President can definitely declassify anything but there are notifications required to the originator of information in almost all cases. Smith clarified that he is ready with much Executive Branch testimony to say that it was never done. It sounds like not even once.
Restricted data comes under the Atomic Energy Act, IIRC, and no, the president *can’t* declassify that.
If one assumes the legitimacy of alt-facts, alt-legal, alt-reality, it’s just a matter of who can impose their own on everyone else in a given situation. And, you don’t have to win all of the time, just the times when it matters.
Though I agree with bmaz that we shouldn’t count on the law alone to save us from Trump, every perceived failure of the rule of law bolsters Trump’s theory of the political case. Cannon may have put her foot in it this time. The absurdity of her proposed jury instructions should be a stopper in the slide of this case into a legal La La Land. If it turns out it isn’t, it means that Trump has succeeded in imposing a significant bit of his chaos on the rest of us and your excellent points about the declassification process will be mooted. Whatever legal rules, customs and courtesies may be obeyed and observed thereafter will not mitigate the rot at the heart of a procedure thus tainted.
11th already dealt with the ‘I declassified them, which makes them mine’ argument.
“ In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”
I seem to remember a briefing that specified any declassified documents would be identified as such with a stamp and authorizing signatures.
Retired lawyer here. Just wanna say that I’ve seen plenty of people without any formal legal training who have mastered a particular field of law. For instance, any journalist is likely to know more First Amendment law than I do. This is not to mention Marcy, whose command of national security law far exceeds that of most lawyers. I’d still hire an actual lawyer if I had a legal problem, because lawyering is far more than mastery of doctrine. But legal doctrine itself is seldom very arcane.
There are many things one could slag Tom Fitton on. His credentials shouldn’t be one of them.
I honestly think about that every time I raise his background. After all, I have a lit degree too, albeit a PhD.
But in this case, it matters. Not only do the time and manner of Trump adopting this theory debunk his claim to have relied on it before he left the White House, but because Fitton is not a lawyer, Trump couldn’t rely on it at trial.
There’s no such thing as a reliance on right wing activist defense.
We’ve been observing Trump long enough to know his MO, and it is always form over function: To Donald J. Trump, Tom Fitton *LOOKS* like a lawyer, and that’s all that really matters to him. See also: “Straight outta casting…”
Smith’s narrative also makes clear that Trump received legal advice (from an unnamed employee) that he could not rely on Fitton’s theory, which would seem to further torpedo any notional advice-of-counsel defense.
Correct Dr. M! I think you mean he can’t rely on advice of counsel defense but he could still try to argue that theory. But more importantly, as he is not a lawyer there is no atty client privilege so all communications should be discoverable (hence the citing of emails)
Lawyers are professionals with obligations to the judicial system, who were trained and accredited before they could give that legal advice.
But there’s no “I’m not guilty because a random asshole who was not a lawyer told me it was legal” defense. Fitton is not licensed to give out legal advice.
Plus Trump received *actual* legal advice from an actual lawyer that what Fitton had told him was wrong, anyway. But Trump always picks and chooses who he will listen to, and who he will blame when things go wrong.
I wonder if it is kind of a “If the DOJ can cite a potty-mouthed blogger with a Comp Lit degree, I can cite an upstanding guy like the President (!) of Judicial Watch” kind of thing.
;)
Also, reporting from the past two years indicates that once Fitton had Trump’s ear (like others who’ve said things Trump discovered he wanted to hear), he stayed in his near-orbit. Meaning: Despite the real lawyers attempts otherwise, many of Trump’s “legal” inspirations have come from Fitton, who falls in a long line including Boris Epshteyn, who *was* a lawyer but claimed to be doing PR.
I agree, there are plenty of English majors who aren’t complete dipshits, like Fitton is. He’s a comically stupid person. I hope this helps.
As a former toiler at the coalface in an English Dept., I can attest that dipshittery is distributed among Lit Profs in the same way as it is distributed among any other given population, that is, the profession has no easily quantifiable impact on the dipshittiness. That makes it a question of character, and Fitton is responsible for that all on his own.
I have a niece with a BA in English *and* a JD.
I want to know why emptywheel thinks it is unlikely to get Cannon sh*tcanned from this case. She’s wrong on legal issues, she’s obstructing by delay, she’s plainly biased towards Trump. Her past behavior that was overturned. Legal issues alone should make a case for replacement. Why is it impossible, and what’s to lose by trying? By becoming enured to her BS, it’s never going to seem like enough, but I believe it is enough for Smith to bring to the 11th Circuit. Fight me!
Welcome to emptywheel. As this is your first known comment here you may not be familiar with how this site works.
If you have a question, ask it while stating your case, providing citations to support claims; do not bait the site’s host, moderators, contributors, and community members with inflammatory statements like “Fight me!”
Clarity in sentence subject and spelling will also help.
Sorry, I know it was my first comment, I meant the “fight me” in a light, friendly way, certainly not in a serious, confrontational way. Sorry about that. Thanks for the heads up!
Yeah, I can second that. “Fight me” is just a common phrase on Reddit. Not meant to bait people, but rather a friendly way to put out an opinion and encourage a healthy back and forth discussion. I don’t think she meant anything antagonistic.
That being said, she’s wrong. :) As much as we’d all love to see it, Cannon isn’t getting shitcanned anytime soon.
Would anything be a surprise at this point? I think Cannon or someone close to Cannon was at Mar-a-Lago after Trump left office and before these documents were seized by the FBI. That alone might disqualify her. We’ll see.
A tad over your skis on that assertion, non?
Only in that it’s hard to prove a negative?
In not having evidence at all.
This is NOT Reddit. The phrase was used in the commenter’s first comment ever at this site. Taking a liberty like that at this site is acquired over time; in a first comment it’s not a good indicator.
Now let me encourage you to get back on topic because discussions about semantics unrelated directly to the topic derail germane conversation.
Wow. That was incredibly rude, and quite unfriendly. I’d rather you had not printed my comment at all. Ciao.
Rayne was clear and precise, not rude. Her comment wasn’t even directed at you.
Commenting here is a contact sport. If you think that was rude, you might enjoy viewing the game from the stands instead of coming onto the field of play.
And don’t try to sit at the Cool Kid’s Table.
Wow. But “fight me” in a first comment is like friendly? No.
You’ve established quite a profile for yourself inside three comments.
Addio.
There are a lot of back-benchers at this site whose contributions lean toward the donation box (when finances are willing) while we read and attempt to digest the top-level discourse Emptywheel is, and has been known to provide, for free, for years.
Welcome to bleacher seats! Checking our ego at the door is SOP. We also don’t throw popcorn. We do sometimes sing.
I am mostly silent here, so going off-topic is a risk I don’t often take.
I hate to be disrespectful but is Cannon not very bright? Seriously. The way she crafted her questions seems to have left Smith with no choice but to make her look like a fool.
That’s okay, she did it early and this nonsense can be dealt with now as opposed to much closer to trial.
True – the nonsense is being handled by professionals – now.
May the legal system hold against this Judge if she is not following the law correctly.
I would be curious why she is on the Federal bench at all?
Question? is it hard to become a US Federal judge?
US Constitution does not seem to have much to say about the minimum requirements.
Can a “fix’ in the Senate be put in that cannot be prevented if known by the minority party?
Is middle ranked low experience (Cite from Law360.com below) a flag that should enable a nominated candidate to be rejected? Hiring criteria I would think for a lifetime Federal judge appointment is a tough thing to finagle?
Are there any hiring Standards that are applied at the Federal Judge level?
Perhaps I am too naïve about the power of good lawyers to fight legally against bad lawyers/judges.
In July 2020 the Senate Democrats where in the Minority I believe — Could they do nothing to stop such an appointment?
Mitch McConnell could block a SCJ …and it held up. ( Yes majority power is useful. )
~~~ https://www.laprogressive.com/law-and-the-justice-system/aileen-cannon
“Cannon’s was nominated by Trump in June 2020, her confirmation hearing was in July 2020, her husband purchased their new home in August 2020, and Cannon was confirmed in November 2020.
According to Wikipedia (citing to Law360.com): while Cannon barely “drew the American Bar Association’s middle rating of ‘qualified’,” she was proposed for the bench by Florida Senator Marco Rubo and nominated by Trump in June 2020. The American Bar Association requires at least 12 years of law practice as one of their approval criteria, and Cannon just met that standard.
During her confirmation hearing, the senators “took it easy” on her.
Given her bare minimum experience in law practice and her relative youth, it is perhaps surprising that the Senate did not scrutinize her more carefully. Though her membership in the Federalist Society explains Republican support for her, it doesn’t explain why Democrats gave her a pass so readily. But her fast and easy confirmation combined with the fact that her husband purchased their home before she was confirmed suggests that she not only had a promised pass but had paper proof of it.”
Cannon is a very FedSoc centric Trumpy appointee. Her qualifications were fine, and there are a lot worse District judges out there.
A poor judge comes in many forms. Cannon is one of those forms.
Cannon is currently seeking to nullify the law through jury instructions here. At the very beginning of her association with this trial, she took on motions by Trump improperly and was shot down in flames by the 11th Circuit appeals panel. And it’s not over yet.
Cannon is the kind of judge that isn’t good on judgement when it suits her proclivities. Her qualifications are that of a mendacious sycophant so far.
But she’s got great qualifications.
Judgment, ambition, and political priorities are not the same as having sufficient legal experience to meet the minimum qualifications to be a federal judge. The Senate knows that, but being a political body, it chooses to let other issues get in the way.
Yep, it is basically up to the US Senate what is and isn’t good enough to become a Federal judge pretty much. The requirements of the Senate are subject to the whims of the Senate, and the evolving practice of law as a profession in the US. For US Supreme Court nominees, the highest judicial branch office in our Federal system, the minimum requirement seems to be “well read in the law”… For Circuit judges, I’m pretty sure there are instances where political backing and the ability to read were good enough to make it past the Senate. Cannon, a modern appointee, obviously is waaay more qualified than the worst who made it on to the Federal bench over the past 240+ years.
Judge Aileen Cannon may have met the basic qualifications for her position, but her work product in the documents case is abysmally poor for whatever reason.
Judge Scott McAfee is a newly appointed state judge managing a much more complicated, sprawling case better, though I think he was hoodwinked by Mike Roman’s professional smear campaign in attempt to remove AG Fani Willis from the Georgia case.
Lol, Cannon was more than “basically qualified”. I don’t like her actions in this matter either, but this vein of attack is garbage.
McAffee is a young and politically elected judge who wants to remain elected and is acting like it. If he had any guts, he would have bounced the odious and belligerent Willis, and she deserved exactly that.
Cannon
Willis
McAffee
What order would you put them in from worst to best?
Isn’t Willis holding an elected office with a fast approaching election? So, she’s playing the very same game as McKafee. “Odious and belligerent” may be just what her constituents desire.
I don’t think it’s so much that Democrats went easy on her as it is that it’s rare for Democrats to go hard on anybody unless they already have an odious track record.
Mrs. Lego tells me that Peter Strzok, in a recent episode of Allison Gill’s “Cleanuo on Aisle 45” podcast, went on quite a tear about how there seem to be no consequences for anyone (other than Smirnov himself) for following his unvetted lies to impeachment hearings, in comparison to the “anal probe treatment” and retribution he & Andrew McCabe received (and are still receiving) over Christopher Steele.
It’ll be interesting to see if Democrats chase this down once the Comer Clown Car runs out of gas, or if Strzok’s right and it’s only Republicans who crucify people.
But she has succeeded brilliantly in seeing to it that “much closer to trial” is further into the future than normal, right?
Hubris, ideology, and self-interest win out over intellectual gifts and education all the time.
This was an entertaining EW post:
Down A Mouse Hole With Bill Clinton’s Cat, Socks
https://www.emptywheel.net/2023/06/15/down-a-mouse-hole-with-bill-clintons-cat-socks/
6/15/23
If you put a cat in a drawer and call it the Socks drawer, is it dead or alive?
I am reminded that “throwing spaghetti” against the wall includes at what time the toss was executed.
TFG loves the retroactive ‘pasta’ rationale. Too bad his legal team is prevented from erasing the documentary record that began at the first square.
The contrast between Judge Cannon and — pick ‘em — any of the serious judges Trump has drawn (Merchan, Kaplan, Engoron, Chutkan) grows increasingly illustrative of how a trial court judge can mangle a case. Even a strong case.
And DJT, TFG, has attacked all those judges, early and often and quite viciously. He hasn’t attacked Cannon at all…tells you all you need to know. Kind of like the Sherlock Holmes story about the dog that didn’t bark.
Trump won’t start attacking Cannon until she starts making rulings that aren’t hugely tilted in his favor. Which she shows no signs yet of ever doing.
Currently touted as a Trump SCOTUS pick Aileen Cannon. has been done no favors by such posturing by Trump.
How do the members of 11Cir feel about such ill deserved puffery?
I find it comical that Trump’s response says: “The Special Counsel’s Office cannot prevail without offering evidence of official acts, such as exercises of classification authority, declassification authority, receipt of Presidential briefings during which the documents at issue were allegedly presented, and PRA categorizations.” when the SC is arguing (and everyone knows) that those official acts never happened.
In a similar vein, at the top of p3 Trump’s counsel assert ‘Thus it is undisputed…’, before stating their own latest and very much disputed indeed bogus theory of case.
All that’s missing in this response is a printout of Trump’s social media post where he praised Cannon, saying he’ll nominate her to the Supreme Court for helping him with the delays.
Compared to the orange idiot’s “legal theories” in New York demanding the judge in his criminal trial recuse himself over his daughter, Cannon’s overt conflict of interest is her bias for the person who appointed her to the bench.
It would have been a terrible idea to have included that.
That post wasn’t real.
Judge Cannon is also married to a Trump contributor.
This is my first post, so let me know if I’m breaking the rules by taking a silly detour from this infuriating Cannon fodder.
Marcy called Cannon’s order “whack.” I propose that when talking about nutters like Cannon, the spelling should be “wack” as in “wacky,” not “whack” as in “smash someone on the head.” What say the jury?
In regard to the usage of “whack” versus “wack”: Urban Dictionary entries define “whack” as unconventional, unappealing, and/or crazy. This is a contemporary colloquialism used correctly by Marcy.
In regard to going off topic: let’s not.
I think it’s very interesting that Cannon’s original order said explicitly to “reserve counterarguments”. Both Smith’s and Trump’s filings are not light in counterarguments. Can this be considered contempt?
Smith’s response justifies counterarguments by pointing out that the issue needs to be decided now because he would lose the right to appeal erroneous jury instructions after trial begins and jeopardy attaches. Then too, “counterarguments” might be taken as referring to arguments against the other side’s proposed instructions. Finally, by saying “reserving” counterarguments Cannon might simply be indicating that by omitting such argument at this point a party does not give up the right to raise it later. Sometimes if you fail to preserve an argument explicitly you lose the right to raise it later. Smith of course points out that later would be in fact too late.
Regarding your last sentence, p.2 of Smith’s filing frames his urgency as anticipatory of Cannon issuing a botched jury instruction ruling and then going immediately to trial, such that the govt wouldn’t have time to file a writ of mandamus with the 11th circuit prior to jeopardy attaching.
Is he anticipating her making such a move for just for the purpose of running an intentionally botched trial that can’t be appealed? And how is this not a shot across her bow?
And moreover, will this diminish JW as well?
No.
All I can think of is Georg Neithardt, Hitler’s judge in the Beer Hall putsch trial every time I read or hear about Judge Cannon.
That trial didn’t take years to organize and the main defendant was found guilty and given a five year sentence of which they served nine months.
And being a convict did not stop the German people from electing him later. It was part of his appeal.
David Lat, at “Original Jurisdiction,” has an article on Cannon. It originated in wondering why a couple of her clerks quit early after she was assigned the Trump case, but it suggests that part of the problem is her approaching the case like an appellate lawyer rather than a judge. The piece is more detailed than this quick summary, and definitely worth a look:
https://davidlat.substack.com/p/clerking-for-judge-aileen-cannon-why-clerks-quit
Also, Roger Parloff’s Xitter feed has a longish thread on all the deferred decisions that have piled up on Cannon, creating what he calls a sort of shadow docket. Also worth a look.
Read the couple of Substack posts he made about the loss of 3 of Cannon’s clerks and his theory that she might be overthinking and giving air to some of these confounding ideas from Trump’s team as she is still relatively new and thinking like an appellate attorney as JPJ stated above.
Very helpful indeed. It is a more charitable reading (and plausible) of some of her of her more wonky decisions.
Have said this before, but know David, and find his discussion quite good.
Thank you for linking that David Lat piece. It’s absolutely fascinating (including the comments), and complements the discussion here very nicely. Recommended.
Thanks for posting this. It does put some of it all into perspective.
Q for the real lawyers here: About the 12 years experience to make “qualified”, is “only 4 jury trials” fairly typical for that time period? Is that even the same time period? Seems low, but maybe not by much? Not every trial is on average a 3 year effort, is it?
I have a question regarding the phrase “such a chump”. I’ve been trained by reading this site to assume that Judge Cannon is not dumb, poorly trained, etc. Is there any chance that she’s deliberately chasing down rabbit holes in order to simply slow things down? Like, if she goes with these jury instructions, forcing Jack Smith to appeal, that gums up the works more? Or is it more likely that she really thinks these are valid legal theories about the PRA?
I think one supposition could be that she thinks the defense will certainly try to convince the jury that they are valid legal theories.
Judge Cannon, in effect, is telling Trump’s lawyers to argue that they are valid legal theories. I read her as signalling that she will regard them as such, if not to give them a win, to give them an appealable argument.
If it delays a final decision until after an election Trump wins, she may think that’s game over. If he doesn’t win, Trump needs to keep juggling balls to keep delaying a final decision and its consequences.
Good point — she can’t have reached this point without a fair amount of intelligence. But lawyers are trained to find arguments to support the positions they advance. By raising the issues in this request for jury instructions, Cannon may be pushing Trump’s lawyers to find a way to support those positions. Maybe she is not so much saying that she thinks her two scenarios are correct, as asking Trump to come up with a justification for at least one of them.
The problem is that she’s now a judge, and should be impartial.
The problem is that the current SCOTUS majority is only too happy to twist fundamental concepts like standing when it suits them., like the CO cake case and the WA coach case where the plaintiffs were exposed as liars during the SCOTUS hearing with no detectable effect.
As many highly trained, conventionally “distinguished” right wingers have shown, a person can be intelligent and well educated and still, in certain situations, be overwhelmed by their own biases and wishful thinking. It happens to all of us sometimes. In fact, I think psychological research has shown that often, being intelligent simply means you’re better at coming up with convincing sounding justifications for the positions you already wanted to believe in. The line between “lying” and “really believing” isn’t always clear. People are very good at lying to themselves.
In the last episode of the “Jack” podcast which is hosted by Allison Gill and Andrew McCabe, so pretty mainstream left, the have pointed out that Trump, Nauta and DeOlivera’s attorneys are submitting motions and then when replying to the SC response adding in outlandish new information which is a no no.
This is then causing the SC to make a motion for a sur-reply to correct the very wrong information, causing the motion process to be strung out and dragged along.
They suggest that Cannon can allow this sur-reply process to drag out indefinitely going back and forth, allowing Cannon a way to gum up the works without risking an 11th Circuit slap down.
It’s an interesting proposition.
I think there is a very high probability she is doing just that. She is not stupid, maybe dumb like a fox.
I see no evidence of her not being dumb.
If the plan were to simply grant the ludicrous PRA argument advanced by Trump’s side, it made no sense to send up the trial balloon in the request for jury instructions.
Indeed, I cannot think of a non-dumb motivation for the request for jury instructions. But I do see a dumb motivation: it was on her mind and she wanted to validate the idea by floating it to the counsels. If she did not anticipate Smith’s response, she’s dumb.
If she didn’t anticipate becoming nationally known for being a dubious jurist, she’s dumb.
If she did anticipate it, but decided it was a good idea, she’s also dumb.
She seems like a classic Peter Principle judge.
I don’t think it’s very helpful to puzzle out Cannon’s motivations here. What we do know is that she’s a very inexperienced jurist who was appointed by Trump in the final days of his administration, and she’s appointed to the district that contains Trump’s residence. This was a nakedly partisan administration that appointed partisan jurists. I don’t see any reason to give her the benefit of the doubt, and she certainly hasn’t earned it.
She’s following the pattern set by lots of other Trump-sympathetic jurists, like those on the DC circuit – Bound by precedent, unwilling to openly rule against Trump. What they are willing to do and have done is set the calendar in his favor, and Cannon is doing it here. In Cannon’s case, her inexperience with national security aspects of the case give her whole new ways to run out the clock. This has been going on since the beginning. IIRC, she rebuffed efforts by the SC to keep things moving along by scheduling important hearings early. I think it was decisions related to Nauta.
Just to be clear: Cannon was more than qualified for her appointment. She now has nearly four years experience. Federal judicial appointments are all “nakedly partisan”. Extremely few judges, at least outside of the DC and EDVA Districts, have “experience” in national security and CIPA cases. Your gripes are politically based, and not the kind that the criminal justice system is built to deal with.
Geez.
“Everybody is partisan so you need to stop being so partisan!”
No, Cannon is not qualified to have the job. She’s embarrassing herself on the bench. She could be competently in the tank for Trump. Or she could be competently running a fair trial. She isn’t doing either.
Often the legal documents submitted by the Trump lawyers read like they are trying to put whatever Trump wants them to say into some sort of plausible legalese. That is what Trump is paying them to do one might argue. This recent request by Judge Cannon seems to be what a Judge attempting to appease Trump might do. Why would Judge Cannon do that? Could she simply not want to be threatened by Trump and his crazy supporters?
Anything is possible. None of us know her mind. But there are plenty of other possibilities. For example, she may think a former president should never be charged with holding on to classified documents, because they’ve all been doing it forever, and none of them have ever been prosecuted before now.
If you start with that idea, it leads you to all sorts of conclusions favorable to Trump.
Judge Cannon may simply have concluded that there is no downside to doing all she can to help Trump avoid accountability—she has lifetime tenure, after all—and a huge potential upside for her should he be re-elected.
So, the mandamus word is out of the bag.
Judge Cannon seems unable or unwilling to rule on virtually any of the motions to dismiss and other significant motions before her. We have docket paralysis.
It is possible, and I suspect it is the case, that in part, she fears being taken up to the 11th Circuit either on mandamus or appeal. She has not faired well before the 11th Circuit on Trump related matters as Smith & Co. implicitly noted in their response. Indeed, the quoted portion from the 11th Circuit’s grant of stay in Smith’s response ought to convince her that any notion that Trump has a PRA defense is absurd.
I suspect she understands that any trip to the 11th Circuit potentially exposes her to the risk of losing control of the case.
Although the bar is very high, if Smith took an adverse decision up to the 11th Circuit either on appeal or mandamus, he could also ask for reassignment of the case to another judge on remand. See 28 U.S.C. § 2106; Likety v. United States, 510 U.S. 540, 551 (1994) (reassignment can be had where there is an adequate showing the district judge is unable to render fair judgment); In re DaimlerChrysler Corp., 244 F.3d 697 (5th Cir. 2002) (incident to grant of petition for mandamus appellate court orders reassignment of case on remand).
I don’t want to get folks’ hope up: a request for reassignment seeks extraordinary relief. But as we have seen, and the 11th Circuit has held, Judge Cannon has shown herself able to make grievously erroneous decisions based, at least in part, on her incorrect understanding that a former President is entitled to heightened protection under the law. Once burned, twice shy.
I sure would not affirmatively ask for removal of Cannon if I took it upstairs. Point out all the issues and ask the appellate court to take whatever action it deems necessary. Affirmatively asking for that relief puts you in even a worse position with a trial judge not likely, at all, to actually be removed.
That’s probably the tactically sound approach. What I am suggesting is that we have docket paralysis because J. Cannon is concerned that any significant adverse ruling against the USG could result not only in an 11th Circuit reversal but also in her removal. Something is amiss. She won’t rule on what she needs to rule on, and keeps issuing bizarre misguided orders like the jury instruction request. At a minimum, it seems like she is out of her depths to handle this case.
It’s not clear what her motivations are. On the one hand, this is a delicate, historic case, and after her mis-steps on less weighty cases I would think she may be anxious if not terrified of making further mis-steps (which are so much easier to make in this case). Additionally, I doubt that she took her February decision (that basically doubled her workload and leaves many things yet unfilled on the official docket) for Trump’s sake. I don’t see a Federal judge willingly bog themselves down in such paperwork just so Trump might possibly maybe get a trial delayed into mid-Fall.
Getting Cannon to do the right thing is good enough, Smith shouldn’t ask for more than this if he ends up appealing: first, asking for reassignment would cause a delay if he were successful (and this is counter to his argument for a “speedy trial”); second, it’s unlikely the superior court would reassign the case (two strikes and you’re not out just yet).
If she was inclined to rule in Smith’s favor she could dispose of all of Trump’s motions to dismiss without delay.
As Smith pointed out, e.g., the Presidential immunity motion is frivolous because all of the actionable conduct occurred subsequent to his term in office. As regards the vagueness motion, the statute has been in effect for over 100 years and such challenges have failed repeatedly. With respect to the PRA motion, the 11th Circuit basically told her already that the defense is bogus.
Smith’s response on the absurd jury instruction request was deliberately provocative – her response may shed a great deal of light on what is going on.
Let there be light! Thanks for these clarifications, Amicus12 and bmaz — there is no replacement for experience.
Provocative, but legally and factually accurate and necessary to preserve a right to appeal, unlike Cannon’s proposed jury instructions and Trump’s submissions generally, which are just provocative.
I agree with bmaz that Smith is unlikely to directly ask for Cannon’s recusal.
Changing judges would cause delay? Do you mean more delay than Cannon is already causing by this stunt, purportedly over jury instructions, by ignoring multiple motions, and by refusing adequately to address the CIPA process? Those delays?
If his goal is not the eventual removal of Cannon then why respond as he did?
IANAL, but I don’t have to be in order to see that she acts as she has because she WANTS to, all the questions regarding her motivation are silly at this point, for her to do what she is doing she has to first and foremost desire to do it. When someone shows you who they are, believe them.
Norms, president, and NOP are things of the past in trump world. I can only hope that Smith recognizes this better than many of the commertors I have seen both here and elsewhere.
Just a guess, but if Smith feels the odds of removing her are slight, he might want to document her faulty rulings, so that he can use them to appeal, and encourage Cannon to issue better, more prompt rulings that comply with the law.
Yes, exactly.
That’s a strategy to “not lose” rather than one to win.
If Smith has that mindset we should just write the case off right now.
I don’t doubt that Smith is committed to winning. The issue is where does he win. He can’t order the trial court not to be partisan or to accurately read the law. He can appeal a faulty decision.
If she throws the case out, can he appeal?
That’s the question. Depends on how Cannon might do it. Smith’s latest filing is meant to preserve a right to appeal before jeopardy attaches.
If Cannon sets up the case in a way that allows her to toss it after the jury is sworn in, she forecloses the prosecution’s right to appeal, owing to the prohibition on being tried twice for the same crime.
Pretty sure you can make that IF a WHEN. She’s shown us all her true colors and I’m sure has some great coaching going on behind the scenes.
Waiting for the headline telling us the FBI has intercepted coms between her and the trump camp.
Yes, further delay on top of those. As you say in another comment, he’s more likely prompting her to make rulings and those in accordance with standard due process.
Regarding her docket paralysis: to what degree, if any, does the (apparently large) turnover in her clerk staffing — as nicely documented by David Lat — contribute to the current state of paralysis? It seems that it isn’t a trivial undertaking to bring new staff up-to-speed quickly in a complex case like this. (Just curious… I’m not a lawyer (far from it!).)
Are mentors no longer a thing when you are a confirmed US Circuit judge?
District court judge?
Thanks for the correction. But, yeah, those too?
I’m curious who it is that judges at that level go to get off-hour advice on running their complex cases. No one but their own conscience?
I do remember reading somewhere that she has a senior mentor in SDFL, but was not able to find my source for that.
Seems that if she did, she might not be going to them directly for advice…if there’s a possibility that the some aspects of the case might be handled by such a senior mentor on appeal?
I was thinking more of outside the 11th Circuit though.
And here I thought that whether taking something you’re not entitled to could make that something yours, notwithstanding the illegality, was a legal conclusion only a court could come to. Trump doesn’t want to make even that argument, because his is that only he can make that determination, not the jury or the court. LOL.
If Congress in the PRA intended to authorize, or permitted by silence, a president to uniquely determine whether a record was personal or presidential it wouldn’t need to explain either term, or distinguish what should happen to each type of record. It would have just said, “Whatever a president wants to keep is his. Period.” But if it intended that outcome, Congress didn’t need the PRA.
I was looking through the Judicial Watch vs. NARA memorandum opinion and I came upon the following.
“The Armstrong I opinion does not stand for the unequivocal proposition that all decisions made pursuant to the PRA are immune from judicial review…. [W]e held that those decisions that involve materials that are truly presidential records are immune from judicial review. We did not hold in Armstrong I that the President could designate any material he wishes as presidential records, and thereby exercise “virtually complete control” over it, notwithstanding the fact that the material does not meet the definition of “presidential records” in the PRA.”
This whole argument is daft.
It’s a relief to come to this comment section and see the generally sober, fine-grained, and informed analysis, after all the hollering elsewhere online about how Cannon should be impeached and/or put on trial and/or sent to Gitmo for her rulings in this case. It’s increasingly depressing to see people nominally on my “side” who’ve been driven insane by frustration over the Trump era and have started talking like Trumpers.
Yep. And I confess I almost went there, after reading Smith’s reply last night. He articulated the problem so clearly, even for a know-nothing like me. He shouldn’t have to be dealing with this nonsense.
But I’m glad I clammed up.
Very much appreciated the discussion between Amicus12 and bmaz just above here.
Thanks.
Lots of people are smart and sophisticated enough to learn an area of the law better than a licensed attorney. Marcy Wheeler and Ben Wittes are examples. But most people aren’t. To use the exception to justify a general rule, precluding criticizing someone for not having the background to give a reliable opinion about the law is silly.
Tom Fitton seems to be arguing that the president needn’t act with intent to designate a record as personal. The mere act of keeping it, even if negligent or in reckless disregard of the law, is sufficient to change its essence.
If so, then why all the angst about a few records in Joe Biden’s garage? That suggests Fitton is not arguing about what the law is, or even the president’s power. He’s arguing that Donald Trump is not subject to the law.
Fitton’s argument is also a red herring. The indictment against Trump alleges, among other things, that he unlawfully retained national security information, in criminal violation of statute, not that he illegally used his magical powers to pixie dust presidential records into personal records.
I’m a bit confused. I assume Cannon will not finalize any kind of jury instruction right now and that Cannon will dismiss the PRA motion w/o prejudice. If that’s true, what is the remedy? Can Jack seek mandamus to force Cannon to issue jury instructions right now? I would not think so, but again, I’m confused.
Bmaz could answer more fully. Jury instructions are not finalized or issued until at or near the end of trial.
Two possibilities are that she’s trying to frame the case in such a way that she can end it in Trump’s favor, in a way that forecloses appeal, or tee up appealable issues that generate delay. From Trump’s perspective, that’s important whether he wins or loses the election.
Heh, jury instructions are never final until given to the jury. Even then they might be amended by the court if the jury indicates confusion.
Did I hear English BA?
Regretfully I suck in poetry.
Ba, Ba, Fitton,
Have you any wool?
Yes, sir, yes, sir,
Over Cannon’s eyes I pull.
Apparently, it is a point of our law, the defendant’s “right to a speedy trial.”
In this particular case, the supervising judge appears to be breeching that to quietly aid the defendant.
In this particular case, do the rights of the Entire American Voting Public to a “speedy trial” before election day have no standing, against the rights of one individual defendant?
Is there no point of law that addresses this?
I believe there is some Federal case law that indicates that the “right to a speedy trial” is also for society in general, not just individual defendants. Some of it may have been sited in some of Smith’s SCO filings (various cases) but I’m not positive of that. Note that “speedy” and “timely” and “expedited” are synonyms here.
Individuals have rights. The “American Public” is not an individual, and thus has no rights, at least, not of the sort you imply. Cannon’s delaying things is certainly hair-pullingly irritating, but it can’t be fixed by appealing to non-existent rights. As Marcy has said, Trump can delay and delay, but eventually – and assuming he loses in November – the “law of gravity” will prevail and he will face the court like any other accused criminal.
It’s not as clear cut as you suppose. The government and society, the alleged victims, have a right to see justice done within the US legal system. Indefinite delay is not the right of civil or criminal defendants in the US Federal legal system.
On the other hand, we also have the right for the judiciary to follow due process, even if it’s irritating. What’s that quote we’ve seen on this site before? “the wheels of justice grinding slowly yet exceedingly fine” (approximately).
The counterargument would be “justice delayed is justice denied”.
Its pretty unusual for a criminal defendant to have a realistic chance of being elected President and then able to try and pardon himself and/or direct the gov’t to dismiss the case against him. So he has strong incentives to delay, and Cannon has been letting him have plenty of delay.
Americans deserve to know if Trump is guilty of witholding and hiding many highly classified documents from the government for months, and then obstructing legitimate investigations and tampering with evidence in his efforts to cover it up. And they deserve to know that before they re-elect him, but they probably won’t because of how Judge Cannon has handled this case.
No, they do not. The criminal justice system is not the plaything of your, nor anybody else’s, political desires.
The criminal justice system seems to be the plaything of Trump. The system doesn’t appear to be able to deal with a powerful politician, with seemingly unlimited funds for litigation. Tonight, on Truth Social, he reposted an attack on J. Merchan’s wife by the despicable Laura Loomer (complete with photoshopped photos), in what appears to be a direct contravention of a gag order that Merchan issued yesterday.
The gist was that Merchan’s wife once worked for Letitia James (who has no part in Bragg’s case before Merchan). The conclusion is that Merchan cannot preside over the case because his wife’s previous employment shows that he and his wife are biased against Trump. This is, essentially, the same attack used on Merchan’s daughter, directly by Trump, and which, at least partially, prompted the gag order.
https://truthsocial.com/@realDonaldTrump/posts/112209720146694717
As a practicing attorney, what do you think should/will result?
I am not sure, just think the whims of political considerations should not be a factor in how the prosecutor and/or courts should let seize the day.
What keeps Merchan from ordering a bail hearing by a magistrate and calling in Trump and the Secret Service to discuss matters relevant to possibly remanding him to custody? Wouldn’t most defendants be treated that way after they threaten the Judge’s daughter?
Personally, I would prefer you not link to Trump’s social messaging site. Nothing there can be taken to be true or accurate, and there’s no purpose in repeating his propaganda. Referring to it as your source seems sufficient, and would not funnel clicks and money his way.
I didn’t say the criminal justice system should do this or that — I just said Americans DESERVE a swift resolution of this historically important case, and they aren’t going to get it.
Its generally slow pace is an unfortunate weakness of the system. But Trump has also exploited that system’s flaws to get lengthy delays in three of his four criminal cases. In the fourth he is busy posting public statements that threaten the Judge’s wife and daughter despite a gag order that was supposed to prevent that. Either the system is shown to be toothless, or Merchan jails him and martyrs him to his supporters.
Either way, Trump wins, the citizens of USA lose.
Not picking a bone with you, bmaz, genuinely curious of your opinion on the speed of the legal system. Political desires aside, it seems to be effective for defendants with means to string out litigation near indefinitely with repetitive motions, appeals, and other delay tactics. Of The four main trials Trump has going, the only one that looks like it will go the distance before the next election is the one concerning actions taken 7-8 years ago. The other three are for actions taken 3-4 years ago and probably won’t see the finish line on any of them till next year. Just as a practical matter, what can/should be done to make the system move a little faster than continental drift?
Nevada may be the only state that grants the prosecution the right to request a speedy trial, under two conditions, per review by the court: 1) sufficient time for the defense, and 2) sufficient space on the trial docket (both conditions abbreviated). See Nevada Revised Statute section 174.511. Both Nevada and California, CA Penal Code § 1382, have 60-day speedy trial laws, felony post-arraignment/plea that may be invoked by the defense.
This results in some interesting outcomes – first offense misdemeanor cases taking a long time to go to trial, because speedy trial is not invoked by the defense and the trial calendar is clogged by higher priority (e.g. felony or in custody) cases. This is especially true in SF, CA, where misdemeanor jury trials are assigned to the same judges as felony jury trials.
The people’s (state’s) interest in timely resolution of criminal cases is supported by case time standards in many states with discretion on the part of the trial judge, but often no statutory remedies. These often complement statutes or rules.
In Maryland, the Hicks Rule 4-271 gives the judge discretion to dismiss a felony case after 180 days from the first appearance of the defendant or counsel, if not brought to trial, with certain conditions. The statewide MD Supreme Court time standards are also 180 days, so that even if judicial discretion increases the time, they must report to the Judicial Council to justify delays.
Don’t get distracted. The important trial will be held in the upcoming election. The jurists will be the electorate. Even if Trump is convicted doesn’t mean his voters will suddenly switch their votes (he’s already under multiple indictments, which is virtually unheard of).
The Sixth Amendment to the US Constitution says: “… the accused shall enjoy the right to a speedy and public trial..”. It doesn’t say anything about society in general. I raised that very question a while ago, when people were talking about “speedy trial”, and was told in no uncertain terms to look it up myself. But my understanding remains that “speedy trial” flows from the Constitution and nothing else, though there could be specific legislation and case law that pin down more precisely what a speedy trial violation looks like. If anyone knows of any federal case law that applies to society in general I would be interested in hearing about it. But Judge Cannon isn’t going to get called to task for violating Trump’s right to a speedy trial unless Trump objects, which he clearly doesn’t.
A lot of useful comments above. While it seems fair to say that Cannon is very inexperienced as a judge, somewhat overwhelmed by this high-profile case, and viewing things from a very pro-Trump outlook, we should also acknowledge that she is probably trying to move the case along in a way that a result will stand up on appeal. Her request for jury instructions is premature, given the status of the case, and legally flawed in the suppositions she presents. On the other hand, it is actually a very fair and useful move, because it presents squarely to the parties an issue that needs to be addressed now rather than later. Smith points this out in his brief. But remember that had Cannot not made the move she did, this issue could have remained simmering on the back burner, only to be served forth once the actual trial process began. At that point, with jeopardy attached, it would be too late to easily argue the point. (It is true that a mistrial might be sought via mandamus, but that is an extraordinary remedy that could be very difficult to effectuate in the midst of trial.) So on that one point we should give Cannon a little bit of credit.
We should keep in mind that big points of error, like Cannon’s “assumptions” for jury instructions, are susceptible to correction through motion practice or appeal. In an actual trial, a judge has enormous ability to shape the proceedings in ways that cannot be easily corrected. This can include things as minor as deciding when to take a break, or the tone of voice in making a ruling. A good judge can control attorneys so as to keep improper evidence out, while a less good one might allow attorneys to elicit such evidence, and then rule on an objection by telling the jury to ignore it — not a very effective instruction in most cases. So I am less worried about these big questions, and more worried about how she may botch an actual trial.
Surviving appeal is normally achieved by an accurate understanding of the law and the process of managing a trial. Cannon appears to have the resources to do both, but also appears to be doing neither.
“more worried about how she may botch an actual trial” — which she has done before in an unrelated case.
Every judge has. Are you outraged at all of them?
Oh, I’m not outraged at any of them; I’ve made plenty of mistakes myself. So I have some sympathy for Cannon, actually. This isn’t an easy case for a rookie to have land in their lap. She’s already increased her workload with her attempt to minimize redaction in the public docket. I only imagine that if Cannon is nervous about her prior mistakes, it could lead to further mistakes– like when a driver’s vehicle goes into a skid but they try to steer out of it instead of into it. Well, we’ll see.
Judge Cannot has a nice ring to it.
This is important and I came back (late) to thank you. Long before this case reached Judge Cannon, I came to the conclusion that I will not be held in a Stockholm Syndrome like state of mind waiting for any court as our saviors. Trump is not a precious rare breed, he is simply insatiable and willing to be both vocal and visible with his toxicity and the press has failed. It is “always up to the judge” and how they conduct themselves and their court (good or bad) is beyond my control.
Our host here is very good about pointing out how TV lawyers, NYT, WaPo, et al, feed the beast while nourishing those who want to delegitimize our system of governance. A judge does possess many a way to make decisions (and hide the manner of doing so) of their personal choosing and everyone should know and never allow a friend or family member to go the court route alone. When things go south as they tragically can do, those who have shared as witness can help them retain their dignity and sanity. Unfortunate too for the advocate when manipulated, docket- dicked, intimidated, stonewalled, (mis)cited, and shutout (not by a gavel slam) it is critical to step carefully (if at all) to save the case at hand and/or career in the face of any judge. It is now pathetic but my stance is her peers and fellow haymakers are there to protect her while doing the citizens’ business and they all know better. It will be interesting to follow.
I can influence – I’m in a red state and know former trump voters – independents and conservative of what we face if he is re-elected and chip at their priors. While not my first choice to constantly challenge people beliefs, I have to follow the RW and MSM only for what they are/are not sharing with all voters. When the economy/politics/cultural or any issue is raised, whether past or present, I weigh in for nuance and contrast. I find most are under informed, mislead, and generally decent but only by listening to the pet issues and source of mis/disinformation can I begin to persuade them Biden isn’t a communist and gain more defense knowledgable judges./s
Is there some way the SC could force judge Cannon’s hand into making an appealable decision and take it to the 11th circuit?
Smith takes an initial step in the most recent filing, saying “Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.””
Smith points out this is an issue that needs to be decided now, not during trial. Since the filing is in response to a request for proposed jury instructions, it would not necessarily require immediate action by the court. However, having made this point, Smith alerts Cannon to the need to rule on the issues now, and she will know that if she doesn’t rule Smith will have a basis for a motion, following which he can appeal if she rules against him.
Reading Smith’s jury instructions I had the distinct feeling of being forced by my older brother to say something I didn’t want to just so that he could turn around and use it against me. (“Mom, she said she wanted me to have all her Halloween candy! Just now! Yes, I was pinning her arms behind her back, but SHE SAID IT!”)
And speaking of childish tactics, am I wrong in thinking that Trump’s argument boils down to “finders, takers, keepers — losers weepers?”
The “I further instruct you…” thing was quite clever. Even though Cannon ordered them to write jury instructions they vehemently disagree with, the SCO was able to put the incorrect parts of those instructions back into Cannon’s voice instead of their own.
Re-Yes, I was pinning her arms behind her back,…, did your brother become a police investigation interrogator?
Ha! Nope…my once tyrannical older brother mellowed into a Dead Head :)
Judge Cannon acts as if she knows that to be a judge you must know that the law flows from the will of the leader. As per that giant of Conservative jurisprudence Franz Gürtner. Bill Barr was our short pants version of old Franz. While she might know it, judging accordingly is tricky, I guess.
I loved the part of Smith’s response, on page seven, where Trump returned fifteen boxes of records to the National Archives. Upon examination, the Archives found that some of them contained documents marked “classified national security information.” Trump objected, claiming that the Archives didn’t “find” anything, they were given…blah, blah, blah. That spurious distinction is pure Trump.
Young Mr. Trump was certainly spurious when he avoided the Vietnam draft. I see that character trait has carried on.
Spurious Gorge?
Heh, Cadet Bone Spurs.
OT: it’s more Russians! Did anyone have Anton Postolnikov and Paxum Bank in their grift bingo card? Paxum appears to be a key piece of the Truth Social launch.
https://www.theguardian.com/us-news/2024/apr/03/trump-media-es-family-trust-2022-loans
Yeah, I saw that and immediately wondered if the change of lawyer – and apparently an impending plea – was about copping to only some of the charges in a manner that would preclude publicly revealing information about Trump’s deal with these guys. Rank speculation on my part; take it as such.
Fit Ton
Fitton with the hoarding spun,
He’ll be Fitton when the squealing comes,
Watchin’ the flips roll in,
Then watchin’ the foul plays again, yeah.
It’s Fitton in the sock drawer today,
Watchin’ ring-side toll away, ooh,
It’s just Fitton in the sock drawer today,
Tastin’ time.
https://www.songfacts.com/lyrics/otis-redding/sittin-on-the-dock-of-the-bay
Fitton, with docs by the bay,
Watching the crime roll away.
He’s jus’ Fitton with the docs the bay…
Wastin’ time
Look like, nothin’s gonna change.
Everything still remain the same.
I can’t tell Cannon what to do,
so I guess I’ll remain the same.
Juan Merchan, acting NY supreme court justice (trial court judge) denies Trump’s latest attempt to delay his state criminal fraud trial. He found that Trump’s claims, principally relating to presidential immunity, were untimely, despite knowing that he could have raised them for months, and refused to address them for that reason.
https://www.nycourts.gov/LegacyPDFS/press/pdfs/Decision-Defendants-Motion-re-Presidential-Immunity.pdf
A completely appropriate ruling. Also, too, it never ceases to freak me out that NY calls their trial courts the “Supreme Court”. Here, and everywhere I have ever practiced, the county trial level courts are “Superior Courts”.
I think it’s because New York judges feel so superior.
This.
(Not the “everywhere I have ever practiced” part, of course, but the completely appropriate” part and the “freak me out” part.)
It looks like a holdover from the colonial days. Not sure why they didn’t change things when they became a state and added the appellate structure.
There are a lot of holdovers, starting with calling Penn. and Mass. “commonwealths.” Lawyers are often conservative about such things.
I think Virginia is also a “commonwealth”.
And Kentucky, while we’re at it.
More OT (sorry) but very important: the 175 M$ bond was returned for corrections including a current financial statement.
https://www.newsweek.com/donald-trump-forced-reveal-his-finances-save-his-properties-1886609
Donny’s lawyers left out two things, at least one of which was probably at Trump’s direction: 1) the name of the attorney-in-fact submitting the undertaking/appeals bond, and 2) a copy of the most recent financial statement of the defendants making this appeal, which include Trump’s principal legal entities.
Trump has always hated to provide f/s and has found creative ways to coerce lenders into not demanding them, principally by providing a personal guarantee. (Ironic, given that his purported wealth comes almost exclusively from those same entities.)
Trump now has to submit all such statements (and other things) to the independent monitor before sending them to a third-party. It’s a very odd thing for him to do here, though, because the appeals bond/undertaking is needed to avoid enforcement by the NYAG of the judgment issued by Engoron, to whom the monitor reports. This may be a play to avoid or delay disclosure – it won’t work for long – but it’s also a way to stick his thumb in the eyes of Engoron and his monitor.
Doesn’t this mean that the bond is invalid leading to the invalidation of the appeal, and therefore NYAG James can proceed with seizures?
My $0.07:
“The name is James. Bond James.”
LOL. Thanks for that, punaise!
No, Trump will be given an opportunity to cure.
Yep, Trump will have a short time to cure, which is why the appeals court clerk sent the paperwork back to him rather than just reject the bond.
Engoron, the monitor, and the NYAG know what’s going on; at least the first two should already have the Trump entities’ most recent f/s. They should also already have whatever financial information Trump submitted to get the bond in the first place.
If they don’t have it, they’ll see it before the appeals court does. Their purpose is limited: to avoid continuing fraud from Trump and, here, to make sure the undertaking complies with ALL the rules, particularly given that the bond is for so much less than the original judgment.
Surely Team Trump knew about the f/s requirement for the bond submission when they first lost the judgement, months ago. Not having one ready to go now is just more bad faith stall tactics.
I expect Ms. Habba to be underbussed again for the “oversight”, in a manner similar to the way she “didn’t check the box for a jury trial” (that he’s been fundraising on ever since).
I understand the missing financial statement is the one for the bonding company.
Yes, but a subprime broker, unexpectedly.
And a lender even knowing that Trump Org lies on its financial statements when he lent them the first $200 million.
If that’s correct, thanks. Reporting on whose financial statement was at issue was absurdly weak: like agency, it was missing from every source I checked. Ditto, regarding the identity of the attorney-in-fact. Which entity it applied to was also missing.
But the documents originally filed already named the bond issuer’s president as its attorney-in-fact, so, logically, the missing information was Trump’s. Hope we get clarification on that today.
This story states that it’s Trump’s information that is missing.
https://www.independent.co.uk/news/world/americas/us-politics/trump-fraud-bond-documents-rejected-b2523226.html
Lisa Rubin argues the opposite, that it’s Knight’s Specialty Insurance’s data that’s missing. It should not be this bloody hard to figure out.
https://www.rawstory.com/trump-lisa-rubin-evidence/
Game of chicken is on, New: @NewYorkStateAG
kicks tires on Trump’s $175M bond in the civil fraud appeal, essentially asking for proof that Knight is able to pay up if necessary.
https://twitter.com/frankrunyeon/status/1775938862189101263
Finally, some clarity in the reporting. The information requested is for the bond issuer.
Hankey’s group, like Hankey the billionaire, appears to have lots of money. What James wants to and is entitled to know is does this subsidiary – Knight Specialty Insurance – have sufficient funds to make good on the bond. There’s also the issue of its ability to do business in NY or with its courts.
Fortunately, because of the monitor – and assuming Trump’s staff gave her the prior disclosure they are obligated to give her – she and Engoron know what information Trump gave Knight, and what resources he proposed to and did pledge to secure the bond.
https://www.rawstory.com/trump-bond-2667696958/
Ok, have not yet read but–missing a financial statement? I feel like his financial statements are a kind of mobius strip, but what numbers does he get to use in them?
Trump only uses the very best numbers, better numbers than anyone else’s, far superior to those communist numbers used by the people who want to destroy America!
Numbers the likes of which the world has never seen . . .
Like worm sign.
Therein may be the rub: The trial itself was entirely about falsified financials, so this bond requirement serves as a proof for Trumpco, that they are actually capable of making a true one. It becomes an official filing in the record, so can it not be assumed that it will be scrutinized, pedantically, for accuracy?
That’s the problem. With the monitor in place, and with her authority to see f/s before they are issued, to report to Engoron, and to ask for any new authority she feels she needs to do her job, Trump can’t play his usual games with false f/s.
He will be reluctant to release this one, because it will probably be the first reasonably accurate one his companies have issued. And, yes, it will be reviewed with a fine-toothed comb.
Sure, maybe the 11th Circuit wont toss Cannon, but they called Trump’s entire PRA argument (these are MY DOCUMENTS!) a “sideshow” back in 2022 when they vacated Cannon. And I have heard a few attorneys who know this bench say they tolerate no nonsense — three strikes and you’re out. Cannon’s jury instruction gambit and the PRA supposition would be strikes #3 and #4.
https://www.documentcloud.org/documents/23323385-trump-ca11-2022-12-01
Unfortunately a close reading of the text of the decision is required
See P 15 and then pp 18-19
15
“|.
Instead, he argues that the Presidential Records Act gives him a possessory interest in the seized documents
Even if Plaintiff’s statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return 3.In most search warrants, the government seizes property that unambiguously belongs to the subject of a search. That cannot be enough to support equitable jurisdiction.
…
_____
3 During discussion of this factor at oral argument, Plaintiff’s counsel noted that the seized items included “golf shirts” and “pictures of Celine Dion.”
.|”
The sideshow reference comes on p 19 after this on p18
“|.
Plaintiff’s alternative framing of his grievance is that he needs a special master and an injunction to protect documents that he designated as personal under the Presidential Records Act. But as we have said, the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course.The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the
Presidential Records Act. So Plaintiff’s suggestion that “whether the Government is entitled to retain some or all the seized documents has not been determined by any court” is incorrect.
…
All these arguments are a sideshow. The real question that guides our analysis is this—adequate remedy for what?
.|”
Firstly, let me apologize for my lack of reading comprehension.
1. I have the disability of having a Ph.D. in engineering from Cal (Berkeley). Poor me, I don’t have a J.D. Oh, neither does Marcy? I’d be boasting if I said Marcy and I both have a natural talent for law in spite of the depravity of not having J.D.s. I really don’t understand Marcy’s credential shaming. Her Ph.D. from UM is superb, and she’s an exemplar of not only not needing a bar admission–the way many people seem willing to appear to believe–nor a J.D. So what’s with the attitude?
2. Where is the Jack Smith part of “Both Trump and Jack Smith?” IDC-11 6A03 Developmental Learning Disorder?
3. For a minute I thought bmaz was gone. No such luck. The only person more surly is Samuel Alito.
PS: Sorry, but I have no idea how to find any username that I previously used.
[Welcome back to emptywheel. This is the same username you’ve used before; please make a note of it and use it each time you comment. **Do not add a URL as you did not enter one with your first comment.** I have deleted the URL you entered this time. /~Rayne]
1. Marcy is not “credential shaming”.
SC Smith himself brings up the fact that FITTON is not an attorney… [See pdf9/24]
Marcy explained why this matters up thread yesterday when she was asked about it
[in a non-surly way, in contrast to your tone today]
[See: https://www.emptywheel.net/2024/04/03/jack-smith-to-aileen-cannon-treating-non-lawyer-tom-fittons-theories-as-law-will-lead-to-manadamus/#comment-1047068 ]
2. See link early in the post at “Smith — as many predicted — spent much of the filing arguing that Cannon”
3. re: bmaz…tiny violin emoji
PS: As Rayne says…Welcome back.
:thumbs up:
I’ve been biting my tongue about the difference between analysis published on an independent website by a PhD in Comparative Literature, and “legal advice” from a non-lawyer provided to an indicted individual who also happens to be a candidate for public office who may have received the advice as an unreported donation-in-kind (perhaps with other donations we don’t know about to ensure access).
To gild the lily, legal analysis informed by nearly twenty years of intense study and reporting on specific areas of the law, honed by public and private criticism, and which has stood the test of time.
As opposed to an unsupported, self-serving, partisan argument, dreamt up to protect a would be dictator. The first is legal journalism, the second looks like the irresponsible unlicensed practice of law.
*ba-dum-tish*
So Rayne, yet another perfectly reasonable, and I would argue correct, comment of mine has been magically disappeared. Did I cross some kind of unseen mercator line by describing something I have personal experience with? Was it just that I disagreed with Marcy on a legal question? What? How is this arbitrary disappearance helping the discourse on. this blog?
That comment should be reinstated.
harpie,
Thank you. But are you and I using the same meaning of “surly?” Here’s surly defined by The Random House Unabridged Dictionary, Second Edition, 1993:
sur.ly (sur’le), adj., -li.er. -li’est. 1. churlishly rude on
bad-tempered: a surly waiter. 2. unfriendly or hostile;
menacingly irritable: a surly old lion. 3. dark or dismal;
menacing; threatening: a surly sky. 4. Obs. lordly; arrogant.
[1560-70; sp. var. of ohs. sirly lordly, arrogant,
equiv. to SIR + -LY] –surIi.Iy. adv. -sur’li.ness, n.–Syn. 1. sullen, irascible, cross, grumpy. See glum.
Let me step in here and cut this line of discussion off. Your tone in your comment about Marcy’s post appeared surly, as in defensive and irritable.
Get back to the topic of the post itself rather than belabor another commenter’s observation, thereby reinforcing the point.
Thank you, Rayne. Good call on cutting off. Still, I don’t see “defensive” in the definition. But meanings evolve. Enough said.
Your ironic snark is noted, but yes, you missed the discussion upthread about why this is not credential shaming.
Will quickly add something I’ve noted here before. There is often something in the OP or comments I have a question about. And occasionally I believe I might have some original idea that could help further the discussion.
In either circumstance, I’ve learned to finish reading all of the comments before adding my own because, more often than not, someone has already made what I thought would have been a new original point, or provided the details or clarification I needed.
Indeed, there’s often an entire sub-thread of the particular issue that allows me, if I still have something to add, to add it in the flow and context of the discussion.
Seems a principle of value applicable to most commenters.
Purple,
You’re right, clearly. But, no snark about it, I’m actually an unusually slow reader, and I simply don’t have as much time as I’d like to read the healthy volume of comments. And I strongly say that I appreciate your reply and that of the others whom I describe within my household as the “big dogs” on this site. (Sorry bmaz, I think you’re a small dog.)
Judge Cannon just accepted a fourth amicus brief into the docket, and invited Smith and Trump to respond within two weeks.
Is it normal for a federal district court to let amici curiae be part of the briefing in a criminal matter?
The brief is attached to the motion https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.429.0.pdf
It is in response and opposition to previously accepted amici briefs in support of Trump et al on the issue of their claim of non-legitimacy of Jack Smith’s appointment. The Trumper’s argument is bullshit; IMHO Cannon accepted the Trumper amici briefs in order to flood the zone with paper pushing bullshit on Trump’s behalf in order to generate controversies which will suck up time and energy of the prosecution, delay proceedings, and give her legal cover for thumbing the scales in Trump’s favor.
Our resident saguaro can provide a better answer, but no, they are uncommon in trial courts. Amicus briefs are more common in appeals courts, because they are limited to questions of law, not factual questions. They should not raise legal or factual issues not presented at trial, because those are not before the appeals court.
The Supreme Court last year signaled its desire for more amicus briefs by deleting the requirement in Rule 37 that they be filed only with permission of the parties or the Court. Cannon has already cited the text of that rule, which formally applies only at the Supreme Court, in accepting an earlier amicus brief. The ironic and obnoxiously self-serving title of this latest brief is chilling.
Cannon’s giving the parties two weeks to comment on this most recent amicus brief, of course, further delays the trial. Note that the “Corporate Disclosure Statement” in Exh A highlights a gap in the rules, designed to disclose for-profit beneficial interests, because it fails to disclose the backers of the for-tax-purposes-only charitable organization that participated in its filing.
They are not favored in trial courts, and calling them rare would be an understatement.
As SteveBev says, this brief is a closely-argued counterpoint to the typically poorly argued and unsupported junk that comes from Trump’s side of the aisle. But it doesn’t take two weeks for the court or either set of lawyers to see that or reply to it.
IANAL and this is more of a political than legal comment and question. Given the very critical news coverage Cannon is receiving, particularly the common speculation that she is either too inexperienced for this case, or in the tank for Trump, How closely would the Chief Judge of the 11th Circuit be following this case? How concerned about the impact on the reputation of the circuit — for fairness, competence, etc. — should he be? Don’t they have a rep for a rocket docket? How does taking a month to just set a trial date comport with that rep? Can the Chief Judge be in contact with a district judge if he has concerns about the way she is handling a case? As a general matter, it seems to me that the games the system is allowing Defendant 1 to play is damaging the reputation of the circuit in particular and the courts in general. I can’t believe that this is of no consequence to a Chief Judge of the circuit. Could someone please enlighten me about this aspect?
Very critical news coverage shouldn’t be driving a judge’s decision. I admit that if Fox, MSNBC, and everyone else joined together to denounce a ruling, all for the same reasons, I’d consider that at least *some* evidence that a mistake had been made… but the judge should follow the law, not the press. And I’m pretty sure she’s not receiving critical coverage on Fox, Newsmax, or their ilk.
IANAL and this is more of a political than legal comment and question. Given the very critical news coverage Cannon is receiving, particularly the common speculation that she is either too inexperienced for this case, or in the tank for Trump, How closely would the Chief Judge of the 11th Circuit be following this case? How concerned about the impact on the reputation of the circuit — for fairness, competence, etc. — should he be? Don’t they have a rep for a rocket docket? How does taking a month to just set a trial date comport with that rep? Can the Chief Judge be in contact with a district judge if he has concerns about the way she is handling a case? Can someone please enlighten me?
Myra,
I have the exact question, and have for years without any answer. All I can say is that I’ve been an expert witness on some billion-dollar cases, and I’m always riveted to the news coverage before, during, and after, forever. I really can’t image any participant being less so.
Marcy will probably UPDATE soon, but:
https://bsky.app/profile/emptywheel.bsky.social/post/3kpdbd6glva2q
Apr 4, 2024 at 2:51 PM
Here’s the paragraph re: the “whack” part:
Of course, you know this means war! (Groucho Marx, Bugs Bunny.)
We can always rely on you to be quick on the draw to repost here news breaking on EW multi-platform media
Thanks Harpie
There is more than a whiff of bad faith in the quoted statement, since her characterisation of her order re jury instructions is more than a little disingenuous: she ordered jury instructions to be drafted in terms that were contrary to the law, in both scenarios as per SC and amounting to a direction to acquit re second scenario ( which point as Trump team also accepted)
More than a whiff. Smith wasn’t seeking to “finalize” jury instructions ahead of schedule. He was seeking to have her draft them compliant with the law.
Her instructions were blatantly wrong on the law and highly prejudicial to the prosecution and the course of justice. Smith would have been negligent not to seek to challenge them.
I think she just gave Smith the opening he needed.
So, in a hypothetical, if she elected to deliberately foul the case, waited until the jury was seated, and then issue Trump-style jury instructions of “you must find Trump innocent if you believe he took the records home, because him taking the records home made them personal which makes them not classified”, would she actually face any consequences?
And would Trump be rendered immune via double jeopardy at that point?
Seems obvious that’s the concern. But, by denying the MTD while refusing to resolve the wrong jury instruction issue, Judge Cannon seems to be daring the SC to move the 11th Cir to force her to determine the jury instructions now, which seems like a hard place for Smith at this stage. It seems to me, his next chess move should be to move in limine to preclude Trump from making this PRA defense and to say if she doesn’t rule by X date, the government will have to take it up. But, maybe sharper litigators on this site have much better ideas.
Like all federal judges, Cannon has a job for life, subject to impeachment and conviction by the House and Senate.
If jeopardy attaches and the court later dismisses in favor of the defendant, that’s it. Double jeopardy would preclude re-prosecuting the defendant. That’s why Smith is still likely to seek mandamus from the 11th Circuit, despite Cannon’s latest ruling against Trump.
Marcy has a NEW POST up [mainly] about this:
https://www.emptywheel.net/2024/04/04/bullshit-and-also-aileen-cannon-post/
Am I off base in thinking that Judge Cannon’s reliance on 4-corners indictment sufficiency boilerplate to dismiss the mtd for now, without substantive discussion of either side’s view of either legal interpretations or identifying with specificity what she views as the outstanding issues of applying the facts to the legal rules, even after extensive briefing (and the jury instruction philosophical goose chase) is … weird? embarrassing? demonstrative of some actual bias due to increased double jeopardy risk?
It feels like hiding the ball as to government’s burden.
Also, notwithstanding this fooferal, could she order an unappealable directed verdict after trial to put it all to bed—or would that seem beyond the pale if the case appeared sound. (Trying to entertain open mind on Lat hypothesis, but wondering what types of things would tip the balance to a reasonable conclusion of motivated bad faith.)