Aggressive Defense Of The Rule Of Law

/50 Comments/in /by

Trump and his henchmen have declared war on the rule of law. Defending it will require aggressive responses. It’s time for heavy use of Rule 11

Here are the relevant provisions of Rule 11:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

snip

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. …

Every pleading from the government should be closely examined. If there are reasonable grounds, the affected parties should immediately demand preservation of records proving compliance with Rule 11(b).

Example: Illinois Sanctuary City laws

DoJ sued Illinois, Cook County, and Chicago over our sanctuary city laws and the policies adopted pursuant to them. (Full disclosure: I am a Chicagoan.) The suit claims that the laws were intended to and do interfere with the ability of the feds to enforce immigration laws. There is a lot of bluster about this, but there isn’t a single specific example of active interference with the feds. There are no specific allegations of damage done by enactment or compliance with the laws and policies.

The complaint lays out the provisions of Chicago’s policy in ¶¶ 41-50. Then:

51. Upon information and belief, Chicago law enforcement officials have been chilled by these prohibitions.

52. Upon information and belief, Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.

The defendants should demand preservation of all records showing that the lawyers who filed this suit had cause to believe that there is evidentiary support for these allegations, or that it is likely that discovery would uncover evidentiary support.

But, even if there is such chilling or confusion, it doesn’t prove the case alleged by the feds. For example, it is likely the case that the feds can seek clarification of the rules from the superior officers of the duty people. There is no allegation that any actual federal agent has been unable to obtain any result permitted by the law. That information is obviously available to the government’s lawyers if it existed.

It appears that Chicago has a powerful defense against these claims under the anti-commandeering doctrine. Here’s a report from the Congressional Research Service. It says that there are six district court opinions all holding in Chicago’s favor.  I haven’t checked to see if there is later precedent (but this indicates there isn’t any ). If that’s right, then a demand should be made for preservation of records regarding how and why this suit was filed. Was there an improper purpose, like a political purpose?

The demand should include any and all records at the Department of Justice in D.C., as well as documents in the possession or under the control of the US Attorney who filed the suit and all of the lawyers who signed the complaint. The demand should also cover all documents justifying a claim that anti-commandeering case law should be ignored or overturned, and documents related to that determination.

This demand will set up a possible counterclaim for abuse of process as well as sanctions under Rule 11.

Example: Birthright Citizenship cases

Trump’s executive order on birthright citizenship is at stake in several pending cases. Judge Sorokin of the District of Massachusetts issued a preliminary injunction against implementation of the EO in a 31 page opinion. Here’s footnote 8:

In fact, the defendants’ discussion of Texas in their papers verges on misleading. The language upon which they most heavily rely appears in a footnote quoted in their opposition memorandum and referenced during the motion hearing. Contrary to the defendants’ characterization, that footnote is not a “holding,” and it does not “foreclose[]” the State plaintiffs’ standing in this case. Id. Rather, it acknowledges that “States sometimes have standing to sue . . . an executive agency or officer,” and though it warns that “standing can become more attenuated” when based on “indirect effects” of federal action, it stops short of saying such effects could never satisfy Article III. Id. This case, in any event, concerns direct effects. Cites omitted.

That doesn’t verge on misleading, it’s misleading, and required the parties and the Courts to expend time and energy unraveling it.

The Judge also calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.

Judge Sorokin rejects that argument, saying[ that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” I’d say it crosses the frivolous line into stupid.

Both the state and private plaintiffs should move for sanctions under Rule 11. On its own, the Court should require all the lawyers who signed the pleading to attend three hours of ethics training and certify their attendance within 60 days.

One more example.

Out-of-state lawyers are usually required to apply for and receive permission to appear pro hac vice. Most right-wing litigation groups, like Americans Defending Freedom, use out-of-state lawyers. If sanctions are appropriate under Rule 11, there is nothing to prevent the court from imposing as a sanction termination of pro hac admission. Admission pro hac in future cases will set up the possibility of moving to deny or revoke admission on the grounds that the lawyer has been revoked in one court. That will certainly deter garbage filings.

Conclusion

I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.

I also know that lawyers don’t like to ask for sanctions. It’s an unwritten rule tied to notions of collegiality.  I know it’s particularly difficult with government lawyers, because of the risk they’ll appear in another case where your clients might be hurt.

But. Adhering to unwritten rules has led to this: Trump walks free, free to abuse the courts, free to wreak vengeance, free to wreck what it took centuries to build. Fixing this is more important than fake gentility.

King John Would Like a Word with Justice Alito

/61 Comments/in , , , , /by

The Magna Carta Monument, Runnymede England

I am annoyed by folks who claim to love history and are blind to it. I am disgusted by folks who claim to love history, are willfully blind to it, and in their willful blindness try to use their power to inflict damage on others.

Why yes, I *did* listen to the oral arguments at SCOTUS today. Why do you ask?

sigh

Here’s an exchange between Justice Alito and Michael Dreeben, speaking for the government:

JUSTICE ALITO: Mr. Dreeben, you dispute the proposition that a former president has some form of immunity.

MR. DREEBEN: Mm-hmm.

JUSTICE ALITO: But, as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president.

Isn’t that true?

MR. DREEBEN: It is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions. And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.

JUSTICE ALITO: All right. So this is more, I think, than just a — a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference which I’m sure you’re very well aware of.

If it’s just a form of special protection, in other words, statutes will be interpreted differently as applied to a former president, then that is something that has to be litigated at trial. The — the former president can make a motion to dismiss and may cite OLC opinions, and the district court may say: Well, that’s fine, I’m not bound by OLC and I interpret it differently, so let’s go to trial.

And then there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the — the former president may be unable to engage in other activities that the former president would want to engage in. And then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal.

So the protection is greatly diluted if you take the form — if it takes the form that you have proposed. Now why is that better?

MR. DREEBEN: It’s better because it’s more balanced. The — the blanket immunity that Petitioner is arguing for just means that criminal prosecution is off the table, unless he says that impeachment and conviction have occurred.

Oh, the horrors of forcing a former president to defend himself in a trial! So sayeth Justice Alito, he who cites a 17th century English witchburner of a jurist (who also invented the marital rape exception), in order to justify denying women bodily autonomy.

If Justice Alito is fond of citing old English judicial writings, let me walk him back another 4 centuries and introduce him to John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou.

Once upon a time — long before a bunch of rabble-rousing colonial insurrectionists said that “Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” — there was a little dustup between John, by the grace of God King of England etc., and a bunch of his barons, as well as various bishops and archbishops. The barons and clergy, distressed at what seemed to them to be very ill treatment at the hand of their king, expressed their frustrations in a manner that could not be ignored.

In June 1215, John and the barons negotiated an agreement. In it, after an introduction and 60 separate clauses in which King John agreed to various reforms and promised to make specific restitution in various particular cases that were demanded by his barons, the 1215 version of the Magna Carta ends like this:

* (61) SINCE WE [ed: John] HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

* (62) We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. We have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between Easter in the sixteenth year of our reign (i.e. 1215) and the restoration of peace.

In addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of Stephen archbishop of Canterbury, Henry archbishop of Dublin, the other bishops named above, and Master Pandulf.

* (63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.

Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the abovementioned people and many others.

Given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign (i.e. 1215: the new regnal year began on 28 May).

Note the third paragraph, that begins “If we, our chief justice, . . .” In that paragraph, King John, by the grace of God King of England etc., is agreeing that he and his administration are not immune from accountability.

John and the barons agreed on a process for adjudicating disputes. They agreed on a panel that could both bring charges and judge them.  They agreed on how the panel should be chosen, and how the panel should select new members at the death of old ones. They agreed on how many members of the panel needed to agree in order for a judgment to be final. They agreed on a time frame for restitution. Most importantly, should John be found to have violated the terms of this document and yet refuse restitution, John, by the grace of God King of England etc., agreed that his castles and lands could be seized under order of the panel to make restitution for what he had done, or his officials had done on his behalf.

To be fair, the Magna Carta was changed and altered in the years and centuries that followed. But the original text of the original version makes it clear that even the King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou does not enjoy absolute immunity.

Trump may wish to be a monarch with absolute immunity and not a president.

Alito may wish to treat him as a monarch with absolute immunity and not a president.

But in a meadow at Runnymede, between Windsor and Staines, John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, said no. That’s not how even a divinely appointed monarch is to be treated.

Lol, Rudy Tudy Is Moldy Fruity

/145 Comments/in , , /by

Rudy had his lawyer promise to the jury that Rudy would testify and explain the truth.

Nope, he not only failed to personally testify, he put on no defense at all.

Mothers, don’t let your babies to ever grow up to be this stupid.

$148 million. Wow.

You all should get ready to learn about:

1) additur and remittitur.

2) Supersedeas bonds.

This was absolutely a damning verdict, and there is no way for Rudy to hide from it. Nor Trump, who will blithely act like he never knew Rudy.

Fun times, but there is a LOT ahead. Stay tuned.

Prosecutors in Georgia Still Abusing Their Over Broad RICO Law

/126 Comments/in , , /by

You might remember me complaining that the way Fulton County Attorney’s Office was ridiculous with their application of their state’s RICO provisio. I said that it was absurd, abusive and would lead to further abuse of it.
Well further evidence of that abuse is now here, and it is very ugly. Via the Washington Post:

“A Georgia grand jury has indicted 61 people on racketeering charges connected to protests that seek to block the building of the planned police and firefighter training facility in Atlanta that has been referred by critics as “Cop City.”

Georgia Attorney General Chris Carr (R) announced the sweeping indictment Tuesday after a long-running state investigation that mainly focused on members of Defend the Atlanta Forest, which prosecutors called an “anti-government, anti-police, and anti-corporate extremist organization” that has supported a violent movement against law enforcement since the 2020 racial justice protests.The 109-page indictment was filed in Fulton County on Aug. 29, just weeks after the same grand jury charged former president Donald Trump with racketeering charges under the state’s Racketeer Influenced and Corrupt Organizations (RICO) law, in connection with efforts to overturn President Biden’s 2020 win in Georgia.”

Yes, you read that right, the same grand jury that rendered the sprawling Trump and friends indictment. At least this time the State of Georgia acted through its proper Attorney General, and not through a local county attorney who took it upon herself.

“Designed to prosecute a criminal enterprise, the law has also been used against gang leaders and human traffickers. The Georgia RICO law is one of the broadest in the country. It allows prosecutors to weave together a wide variety of alleged crimes, including violations of state and federal laws, and even activities in other states. The charges brought against the activists is the latest example of Georgia prosecutors bringing racketeering counts in prominent cases.”

Yeah, no kidding. Yes, RICO was gratuitous as to Trump. In fact, I think it made the Fulton County indictment weaker if cases go to trial. It is complex and confusing. And a jury may well find it so. Or not. We’ll see.
 
As to the protestors, keep in mind that the minimum sentence is 5 years prison. Same for Trump et. al. A judge can modify that, but what if a judge doesn’t? 

This is now going to spread outside of Georgia, and that is very much not a good thing. It was designed for mob bosses, and then drug cartels, and nobody cares about that use. But expansion like in GA to political speach and acts is really bad. It is more than bad, it is heinous. It is a stain and blight on the American criminal justice system.

I warned that what has, and was, being done in Georgia was dangerous. And this is just then tip of the iceberg coming because it will spread.

For anybody that has forgotten, here is Ken White, aka Popehat, on RICO.And, yeah, he pretty much maintains that as to the Trump et. al indictment in Fulton County:

“I am not a Georgia law expert. Federal RICO against Trump would be extremely implausible. Georgia RICO? Won’t speculate. I will say that Georgia RICO seems like a needlessly convoluted and performative approach, but DAs gonna DA.”

That was from Ken’s Mastodon account. He has also said:

“In my view, the Georgia RICO indictment is gratuitous, self-indulgent, and careless of the appearance of legitimacy.”

That is being kind, and the indictment of the protestors for RICO is even more absurd. The moral of the story is be careful of what you cheer for, because what Georgia is doing is truly egregious.

Trump Court Hearings For August 28, 2023

/230 Comments/in , /by

Alright, there are two hearings today, both at pretty much the same time. The first is in Prettyman Courthouse in DC and concerns trial scheduling for the J6 case of Jack Smith. It may get VERY contentious. As a preview, even Trump’s attorneys are at severe disagreement, with one saying no trial and must wait until 2026. Alina Habba, on the other hand says Trump knows everything and is ready to go. I’ve always considered Habba a bit of a dim bulb, but man did she prove it there.

Regarding the other simultaneous matter, it concerns ostensibly Mark Meadows’ motion to remove the Willis charges to federal court. It was filed, and will be heard, in the Northern District of Georgia.

Via @CNN:

“Fulton County District Attorney Fani Willis will lay out the first details of her sprawling anti-racketeering case against former President Donald Trump, his White House chief of staff Mark Meadows and 17 other co-defendants at a federal court hearing on Monday morning.

This will be the first time that substantive arguments will be made in court about the four criminal cases brought against Trump this year.

The subject of the hearing, set to begin at 10 a.m., is Meadows’ motion to move his case to federal court and possibly have it thrown out, but it’s much more than that – it could end up acting as a mini-trial that determines the future of Fulton County’s case against the former president.”

I am not sure how much of a “mini-trial” this will really be. If so, that could take all day if evidence is to be presented and argued, which strikes me as unlikely. No cameras in either hearing so you will have to follow @Brandi Buchman and, I believe, @JoshGerstein for live updates. Via Rosalind, “Jordan Fischer – @JordanOnRecord on bird site – is also giving nice updates for the D.C. hearing.”

UPDATE: The Fulton County Judge has just set September 6 as the arraignment and plea date for all Fulton County defendants, including Trump. That is pointy to be a busy day for the court then. Unclear if some will be allowed to appear by video, but they sure our ht to be encouraged to do so.

Something Happened To Our Planet

/68 Comments/in , , /by

Something happened to our planet, and it was us. The upshot is that it is getting insane. People yammer about how hot it is currently in Phoenix. It has always been thus, but it no longer cools off at night. The high temperatures are not the problem so much as the the overall heating. Including that the cool off at night no longer happens.

Climate change and heat sinking.

But, together, they really do matter. A lot. Both can be minimized if humans are not stupid. Do not count on that happening. Because humans are stupid.

But the kids today, and their kids, will make the future. They can make a difference in their own schools and communities. Starting now.

This is  book for kids. But a really helpful, and useful, one.

Many, if not most, of the people that frequent here won’t be around in fifty years to see how it all goes, but you can school up those next generations. This book can help. It is a great starting point.

As an adviso, the author is a friend and relative of mine. But I would not recommend it if I did not truly believe in her and her work.

Thomas, Alito and Christmas Cookies

/220 Comments/in , , /by

You have heard about the private jet and yacht trips given to Clarence Thomas, the jet trips given to Samuel Alito, etc. The stories of this type of absolute impropriety are seemingly endless.

Senior Massachusetts District Judge Michael Ponsor has penned an op-ed in today’s New York Times: in which he discuses the acceptable limits of what federal judges can take as grift. It is quite good and not very long, I’d suggest a read of it.

What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.
….
The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

This is FAR beyond “the appearance of impropriety”, it is actual impropriety. Any judge and/or lawyer with even an ounce of ethics knows this, and it is patently obvious. It is wrong.

Let me give you an analogy that demonstrates how absurd Thomas and Alito really are.

Many, many years ago, a junior partner in our firm decided to be nice to the local county level judges we practiced in front of. So she got a bunch of boxes of Christmas cookies from a local custom cookie place and tried to deliver them to the pertinent judges for Christmas.They were just local superior court judges, not SCOTUS level. They turned them down, and there were a bunch of cookies suddenly in our kitchen and lounge.

There were a lot of attorneys, including me, both prosecution and defense, that used to drink at a local downtown dive bar after 5 pm. Judges, both federal and state, came in too. The lawyers always swapped rounds. But not the judges, they always paid for their own.

Nobody in the world would have carped about it if the judges would have eaten the cookies, nor had the judges gotten a free drink. They just did not. It was pretty admirable.

And now, when such things should be far more apparent, we have a Supreme Court that thinks they are entitled to the graft and grift. Do I think that makes them “corrupt” per se? I do not know that, we shall see how it all plays out further.

How Many Podunk Local DAs Ought to Arrogate Themselves Federal Election Police?

/130 Comments/in , , , , , /by

For anybody that has read me here, or followed me on Twitter, you know I have maintained from the start that Fani Willis, and her “investigation” is a complete joke.

Have also maintained the Trump conspiracy actions in Arizona were as bad as Georgia, if not worse.

Apparently the national media has caught on to what informed Arizonans have known from the start.

Arizona Governor Doug Ducey was hit up by Trump (so was the then Secretary of State).

So, why is the ladder climbing Fani Willis the only local DA trying to enforce federal election law, much less her completely bogus RICO posit?

There are now people in Arizona clamoring for this horse manure. Thanks to Fani Willis and her self serving showboating garbage.

Fulton County, where Fani Willis is the local DA, has approximately 1.1 million county residents. Maricopa County, where all significant acts in AZ occurred, has nearly 5 million.

So, should every pissant local county prosecutor arrogate upon themselves to control and charge federal election crimes?

No. Nor should local AGs. Leave this to the Feds.

Things are getting just absurd.

On Judge Aileen M. Cannon

/162 Comments/in , , , /by

The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

Where Is The Proud Boys Verdict?

/71 Comments/in , , /by

Friday has come and gone without a jury verdict in the Proud Boys case in front of Tim Kelly in DC District Court.

Couple of days ago, somebody asked me when I expected a verdict. That is fools’ play, but I said probably Friday because juries want to get on with their lives, and not come back, yet again, the next week.

Apparently I got that all wrong. Go figure.

So why did the PB jury blow past an obvious chance to be done? I do not know that either, but there is a fair chance it is not about ultimate guilt or innocence, but about multiple defendants and the complexity of the seditious conspiracy charge so many people (even here) have long clamored for.

Sometimes you get what you asked for, and that may be the case here. Counts, charges and jury instructions matter. I hope that is not the holdup here, but very much fear it could be. And that is what happens when you do not keep things narrow and strong.

We shall see.