Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing
After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.
The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.
There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.
But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.
Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.
They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.
But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.
Update: Cannon catered to Trump, once again.
PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)
I’ll wager that the prosecution did not, in fact, break the rules with respect to this motion.
Blanche writes “I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion.”
Confused? Really, Todd? Confused? I’m sorry, but this doesn’t sound like Blanche is confused – it sounds like he’s frustrated.
Trump has made it clear that there is no path forward short of a motion when it comes to shutting down Trump’s mouth. If Blanche is truly confused, perhaps he should ask the judges in Trump’s E Jean Carroll trials, his falsification of business records trial, and his DC January 6th trial, and they could explain it to him.
Blanche is sounding a lot like his client in that passage quoted above. “That Bratt-I-Am, that Bratt-I-Am, I do not like that Bratt-I-Am!”
He’s not frustrated. He’s feigning.
I was struck by the line in the govt filing in footnote one about the contacts between the Special Counsel’s staff and Blanche. “They [defense counsel] do not believe that there is any imminent danger, and asked to meet and confer next Monday.”
First Blanche claims that reaching out for a meeting late on the Friday before the Memorial Day weekend is somehow problematic, and then he proposes instead a meeting on Memorial Day itself?
Maybe he meant the Monday after Memorial Day? Some people use “next” to mean “a week or more away” and “this coming” to mean the literal next time that day arrives on the calendar.
Blanche’s writing was very theatrical. I could see him in a stovepipe hat and tails, waving papers around equally on a stage or in a court room, delivering these lines. A satirical comedy I think, perfect for the Deadwood Theatre.
Lawfare’s Quinta Jurecic today, re: Blanche closing argument today in TRUMP trial:
https://bsky.app/profile/qjurecic.bsky.social/post/3ktkmswspkk2x
May 28, 2024 at 10:46 AM
This now lines up quite nicely for Cannon to respond for 7-8 pages that the Jack Smith is horrible and on thin ice for not following the sacrosanct rules, with a quick paragraph at the end noting that she is adding his additional stipulations to her Trump’s bail terms.
Kise and Blanche should keep feigning, because they seem to have knowingly committed a fraud on the court by filing false claims. They both know the standard protocol that was applied here. They lied about it and the context of the search, which Trump’s lawyers were informed of before it took place, an exceptional courtesy for a target alleged to have already committed obstruction.
A bar complaint wouldn’t go anywhere if Cannon were responsible for it, but it’s the Florida bar that’s responsible. Admittedly, it’s Florida, Jake, but still….
It is OPR. The FL bar won’t pick up that ball; Cannon has little to do with it.
OPR would apply to the DoJ’s attorneys. I was referring to Kise and Blanche, who would be subject to oversight by the Florida bar. Not that it’s likely that that state bar, in particular, would respond.
A few quick observations:
– Emil Bove is listed as an author. I don’t recall seeing him on docs in the S. Fla. case. Hard to believe he and Blanche were able to direct attention to this while working on closing arguments in Trump’s NY criminal case. I’ve been impressed with his defense in the NY case, especially arguing jury instructions.
– Taking Trump’s arguments at face value, it’s hard not to see this motion to strike as nothing more than the kind of argument most defense lawyers would LOVE to make (i.e., ‘prosecutors are engaging in bad faith conduct’ — if they could find a judge who really cared about a defendant’s rights)….that they WISH they could get a court to pay attention to. If this same type of motion were filed on Hunter Biden’s behalf, knowing a judge might be sympathetic to it, all the commenters on this site complaining about “prosecutorial dickishness” would cheer!
– It certainly is ironic that this defense motion admits it attempted to, but did not actually, “adequately confer” with the opposing party before filing its motion alleging prosecutors failed to “adequately confer.” Reminiscent of me and my sis at ages 3 and 5 arguing about who pulled whom’s hair first.
CHRIS KISE attestation, page 15, in defense motion to strike: “Counsel for President Trump conferred . . .with the Special Counsel’s Office via email on May 26, 2024, to resolve the issues raised in this Motion and has been unable to do so. The Office opposes the relief sought in this Motion.”
GOV’T footnote 1 in Motion to gag via bail modification: “The Government has contacted counsel for defendant Trump, who stated that they object to the Motion and the timing of the conferral on a holiday weekend; it is their position that the Government has not provided an opportunity for meaningful conferral. They do not believe that there is any imminent danger, and asked to meet and confer next Monday.”
– Defense’s Motion to Strike (my paraphrase): ‘Knowing prosecutors had an audience with defense and judge on May 22, why did prosecutors not raise concerns in person? Why wait until 5:30pm on a holiday weekend — the ONLY weekend defense attorneys have to prepare closing arguments in the case that most immediately threatens their client’s liberty? Does prosecution have specific evidence of actual, imminent threats of harm to specific FBI agents in this case that its not sharing with the court or with defense?’
AREN’T THESE THE SAME QUESTIONS WE’D BE ASKING IF WE THOUGHT FAVORABLY ABOUT A DEFENDANT?
– Defense’s Motion to Strike points out a pretty glaring fact: that, once again, prosecutors NOT ONLY did not identify any specific, real, imminent threat caused by Trump’s most recent conduct, they DID NOT FILE THIS AS AN EMERGENCY MOTION! Yes, a criminal defendant’s conduct is not as protected as Brandenburg v. Ohio, 395 U.S. 444 (1969) demands, but prosecutors want to not just curb speech by prior restraint, they want to tie any adjudged violations of any priorly-restrained-speech to Trump’s freedom (his bail conditions).
QUOTED at the end of comments two EW posts ago, but worth repeating:
Defense attorneys try to remind us all — please stop. Please think. A government with all the investigative and prosecutorial power, with lots of financial resources, is trying to shut someone up. Regardless of your opinion of the defendant, his condition as an accused criminal, the offensiveness of his speech, or the alleged perversion of his motives, just take a moment and think.
If it takes one very-defense-minded-toward-this-one-particular-defendent Federal Judge to spend some time weighing such arguments, Oliver Wendell Holmes would welcome this moment of pause.
Fair points!
That said, they do raise Trump’s general dangerousness, citing the guy who attempted to breach the Cinci FBI office and the DC Circuit opinion, among other things.
Yes, and they offer various citations supporting Trump’s past conduct and the direct threats that stemmed from that conduct.
That last sentence is what moves this from prosecutorial dickishness to something bigger, in my mind. Trump’s conduct has been so egregious that other judges, after careful consideration of warnings given, the statements made, and the threats received, restricted Trump’s speech in ways that fit their particular trials.
That said, I think you may be right that Smith & Co. made a mistake by not filing this as an emergency motion. I don’t know what the legal definition of “emergency” is for such motions, and it may be that this general fact pattern of Trump’s comments followed by direct threats in other cases is not enough to meet the bar for an emergency motion in this specific case. But yes, to say “We gotta shut this guy up and fast” and put it in the general hopper rather than label it an emergency is a rather mixed message.
What is the “emergency”? Come on man.
Reply to bmaz
The emergency is that in repeated previous instances, threats immediately followed upon Trump making posts like these aimed at judges, prosecutors, court officers and staff, and witnesses. These threats were assessed to be credible by relevant judges, including appellate judges, and limits on Trump’s speech were put in place.
The emergency is that we’ve seen this movie before, and yet Trump keeps trying to go there.
Didn’t judge Cannon put restrictions on the prosecution’s ability to file emergency motions? I remember something about that in the past…?
If you feel it is really an “emergency”, you file the motion irrespective of what the judge has said. In fact, you blatantly do so.
Don’t think that implicot threats had been made by 22nd, they display a disingenuous lack of awareness of their client’s behavior.
Per the govt motion, they were made ON May 22nd. The exhibits themselves might include time stamps, but the motion itself does not mention if these posts were made before, during, or after the meeting between the parties.
Holmes had no problem keeping Eugene V. Debs in prison for violation of the Espionage Act for distributing leaflets arguing in favor of dodging the draft. He ran for president anyway and got 13% of the vote (or something pretty impressive for a third-party candidate, let alone a socialist). I often find myself in the position of arguing the case that, no, criminal conviction should NOT disqualify someone from running for office, precisely because someone like Donald Trump would be happy to use it against his political opponents, and that if the people want to vote a convicted criminal into office, that’s their choice, period. I tell people to put the metaphorical pitchforks away.
I am struggling to understand how Trump’s conduct is somehow MORE benign than Debs’. If I had to argue this point in court, I’d undoubtedly lose, but I don’t think that makes the contrast any less nauseating. Donald Trump assiduously strives to vitiate the legitimacy of our justice system literally at every turn. He has multiple media outlets relaying his every word to the public–and then some–to say the least!
But about Holmes: I’m hardly a legal scholar, but is it obvious that he would even oppose this request for a gag order?
IANAL, but based on the analysis here and elsewhere, as long as the spaghetti has a tiniest bit of law in the marinara sauce, there’s a good chance it’ll stick to the wall and Judge Cannon will say ‘yup, motion granted.’
Lol, things are a little more complicated than that.
Donald Trump’s most recent filing in Florida reminds me of the Southern aphorism: the hit dog hollers.
Minor typo, second line: “taem” sb “team.”
And perhaps “caters” should be “craters”?
https://bsky.app/profile/nycsouthpaw.bsky.social/post/3ktkpcuze3a2g
May 28, 2024 at 11:30 AM
CNN just announced Cannon rejected the motion. Sounds like she went all in on the Defense argument.
In a non-appealable paperless order with some digs thrown in at SC Smith for not being professional. If/when it comes to a recusal hearing at 11CA, I’d say the the question of her intent is pretty much settled.
So, Judge Cannon issues yet another provisional ruling.
But in doing so, she appears to evince no concern about stochastic violence flowing from the patently fraudulent assassination claims, or the ultimate impact of these claims (including as amplified over time going forward) on the FBI agents who will likely be publicly identified as witnesses, let alone the impact on other members of the prosecution.
It should not escape notice, that built into Trump’s procedural objection is a repudiation of the seriousness of the allegations or any need for relief. No reasonable jurist could read that opposition and believe that there is a reasonable chance of a negotiated resolution of this issue. Yet a pointless meet and confer must be had before the Court will address the substance of the issue.
Heck of a way to run a railroad.
So Cannon *can* move quickly when she chooses, despite other apparent evidence to the contrary.
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Thanks Dr. Wheeler and the lawyers who commented.
At this point, if you’re Jack Smith, why not meet and confer and then re-file the same motion, after replacing Footnote 1 with the specific text about the conferral that Cannon demands at the end, and tacking on additional Trump statements as exhibits?
In all likelihood, that’s what will happen.
It’s also likely that Blanche and crew will oppose everything DOJ is asking for in its motion. So despite all the spluttering about the meet and confer requirement, it’s all gamesmanship, and they were always going to oppose it anyway. It’s just a way to engineer additional delay while Smith’s team pins someone down from Trump’s side to do the actual conferring.
Meet and confer requirements, while well intended, do create some additional opportunities to play games with the process.
Tacking on to Dopefish, if the SC refiles the motion and Cannon still rules against them, would that ruling be appealable to the 9th?
Good idea: transfer the case to Hawaii, or Oregon or the Northern Mariana Islands.
Cannon is in the 11th.
Wow! Have no idea how I pulled that out of air. I think I’m blushing lol!
A ruling denying modification of conditions of release is appealable (to the Eleventh Circuit) pursuant to 18 U.S.C. §§ 3731 and 3145(c). As a practical matter, such an appeal would be unwise. The District Court has boatloads of discretion regarding conditions of release, and a reversal would be highly unlikely.
There are motions on other matters pending before Judge Cannon which are far more critical to the prosecution, and I would expect the judge to make at least one boneheaded ruling which will result in an interlocutory appeal and a pretrial reversal. For example, Donald Trump has filed a motion for relief relating to the Mar-a-Lago raid and unlawful piercing of attorney-client privilege. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.566.0_4.pdf If Judge Cannon suppresses the fruits of the search warrant and/or disturbs Judge Beryl Howell’s prior ruling regarding the crime-fraud exception to the attorney-client privilege, the prosecution would be highly likely to seek interlocutory review of such a ruling.
You are still high.
bmaz, should I emulate you and offer nothing but ipse dixit assertions and vitriol in place of actual legal analysis?
Or just dry up and go away. I tend to be succinct, not run on like you. Sorry!
Reply to bmaz
May 29, 2024 at 10:06 am
Knock it off. You’re harassing Herbison instead of offering cogent rebuttals, doing yourself no favors in the process.
Either make a rational counter to Herbison’s comments or find something else to do.
Lol. Sure Jan.
More spilled ink and pixels over the ‘error’ made by SC Smith to charge in SDFL rather than in DC. However, I agree with bmaz on this, in that charges were filed where the evidence was found from a locally issued search warrant, not where they were stolen from in a normal choice for prosecution.
I do find it interesting that there were still more boxes found post-search that somehow doesn’t make a dent in Judge Cannon’s view about Defendant-1’s intent to deceive although Judge Beryl Howell (IIRC) did discuss this topic.
On a related note, I see that Defendant-1 is selling his (damaged) jet to a megabucks donor (an Iranian-American, Mehrdad Moayedi) to finance his defense team now that the RNC is tapped out. It will be the hemorrhaging of money that finishes off Defendant-1, not the dropping crowd sizes, nor the more incoherent babble, nor the inconvenient facts sat upon by the WashPo and NYT. FWIW, the most common way to leverage someone for kompromat is to cover serious debts.
Yes. But if you have a choice as a prosecutor, take the smart one.
I thought the obstruction charges (and the indictment’s focus on them) made it necessary to file in Florida.
This, along with the fact that Trump was still president at the time the documents were packed up and taken, is why I don’t understand the argument that Smith could’ve filed in D.C.
No, it did not if there was a continuing crime, and there was.
Cannon must love snark, because she describes prosecution counsel’s response as, “wholly lacking in substance and professional courtesy.” Does that mean she doesn’t read filings from Trump’s attorneys, but stamps them approved anyway?
Judge Aileen Cannon’s Performance Evaluation to date:
-appears unsteady in her ability to see matters clearly.
-doesn’t appear capable of prioritizing the facts of this case over her feelings.
-appears to believe that working hard and working well are equivalent.
Has an inexperienced staff (like herself) and is in over her head and is trying to play games because she’s scared to show weakness to The Donald because she knows how that works?
A credulous, improbable explanation that ignores Cannon’s background, the power and status of a federal judge, and the politics of those resolutely behind Trump and Leonard Leo.
WaPo, in its live updates from NYC outside the courthouse, has a photo with an enormous flag that reads “Trump or Death.”Maybe Aileen should take a gander?
Cannon’s orders are so very pissy. She has turned missing the point into an art form. She must be absolutely exhausting to deal with.
Not poking you, but why do we assume that Cannon is the one writing these orders?
She signs them or she doesn’t. They are hers, she owns them.
As bmaz says, it doesn’t matter who wrote them. When Cannon signs an order, it becomes hers, and who the original writer is becomes irrelevant.
OMG!! A pissy federal judge? Amazing!
Cannon Eyes Alibis
Don’t know why I’d honor blue
Donald’s pulled one over you
You’ve lost what you knew and
Don’t it make you overdue
It’s Aileen and the Don
Venting spleen with a con
You wish it wasn’t true
Don’t it make you overdue
Hello top secrets, hello outcries,
Give it dead season, and some alibis
Hello rule of three and little white lie
Say anything but don’t ask them why
What says he now, dear old Vlad
He must be glad they’re all mad
Hush, money, this is true
And don’t it make you over
Don’t it make you over
Don’t it make you overdue
https://www.youtube.com/watch?v=wTRLWvh0h8c
“Don’t It Make My Brown Eyes Blue – Crystal Gayle Piano Cover from The Jason Coleman Show”
https://www.youtube.com/watch?v=OQ1zjDzVmkk
“Story Behind the Song: ‘Don’t It Make My Brown Eyes Blue’ l
That was pretty good, although I don’t know the song. Could you do one of “Talking Vietnam” by Phil Ochs?
One would think that Trump being found in contempt of court (how many times? 10? 11?) in another jurisdiction for very similar actions would impact his release conditions in his other cases. Or at least a review or comment or statement to Trump. Or would have SOME weight.
Oh well.
No.
So very eloquently stated.
BMAZ please clarify. Do you mean it doesn’t have weight before this judge? Or in your extensive experience with Section 3142 hearings the defendants’ failure to follow previous conditions was not considered? If you look at the intent of 3142 why is the judicial officer required to explain Sections 1503 -1513 if the defendants conduct to witnesses can’t be considered for release revocation?
So far, we’ve seen two versions of Judge Cannon, 1.0, whereby her impetuous rulings were overturned twice by the 11th Circuit, and since then, Judge Cannon 2.0, a version that appears to have been re-engineered by the top attorneys in the Federalist Society.
Judge Cannon 3.0 will be released sometime this Summer after the SCOTUS issues their ruling on Trump’s Absolute Immunity claim.
Jack Smith needs to tell his prosecutor, Jay Bratt, to take time off until the upcoming SCOTUS ruling is released.
Judge Cannon 2.0 is a well engineered and well coached version that will never give Jack Smith the opportunity to successfully appeal any ruling she issues, but affords Judge Cannon the opportunity to ingratiate herself even more than she has already to Trump, Alito and Thomas and the Federalist Society.
Garland has stated Trump puts FBI and law enforcement in danger. Is it too far fetched now to think even Cannon needs to worry about ever getting on the wrong side of Trump. Isn’t that always the risk with authoritarians?
Sussex Trafalgar: “Judge Cannon 2.0 is a well engineered and well coached version that will never give Jack Smith the opportunity to successfully appeal any ruling she issues, but affords Judge Cannon the opportunity to ingratiate herself even more than she has already to Trump, Alito and Thomas and the Federalist Society.”
Yup. That’s about how how I also read her trajectory on this case.
I expect Cannon will change her tune if and hopefully when Biden returns to the presidency.
Why would you assume that? If Cannon is in the bag for Trump, that won’t change if he loses. She might become more pro-Trump, because the odds that he will face consequences increase, as the odds of Republicans controlling all three branches of govt decrease.
IANAL, and I may not be fully up to date on the ins and outs of the Jan 6 case, but couldn’t Jack Smith also file this motion with Judge Chutkan? It would seem to be at least as relevant there. Is there some reason he wouldn’t file this motion with her, as well?
The Special Counsel complains of Donald Trump’s drivel related to execution of the search warrant at Mar-a-Lago. That is less relevant to the D.C. case pending before Judge Chutkan.
Over at abovethelaw.com, Liz Dye had a nice article about this whole episode.
She described the motion to strike as a “120-decibel work of performance art” and pointed out that the whole thing feels a bit like it may have been “part of a planned media cycle designed to gin up maximum outrage”.
I had the same feeling while reading Blanche’s “pissy” emails in the exhibit attached to the motion.
Is this how the new system works? I posted a comment, earl replies, and I would like to reply but there’s no link. So earlofhuntingdon says on May 30, 2024 at 12:58 pm:
‘A credulous, improbable explanation that ignores Cannon’s background, the power and status of a federal judge, and the politics of those resolutely behind Trump and Leonard Leo.
I think earl’s probably right, in that those factors are very large but is earl sure that the things I mentioned are totally irrelevant? Is it possible that the answer, as so often in life, is somewhere in the middle?
The number of threaded comments has been reduced to four max for the benefit of mobile device users.
See this overview at the end of my Mother’s Day post for more info.