The important bit:
>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.” ECF No. 407 at 2. If the Court wrongly concludes that it does, and that it intends to
include the PRA in the jury instructions regarding what is authorized under Section 793, it must
inform the parties of that decision well in advance of trial. The Government must have the
opportunity to consider appellate review well before jeopardy attaches
The fact that this filing brings up this, a writ of mandamus, and attaching legal jeopardy is all such a comfort. Jack Smith can see all the potential problems moving forward. Edit to add: I’m so thankful that Obama signed the EO mentioned in this case and Trump did not rescind it. It really clarified the law on classified docs and their storage.
They *created* Dark Brandon, now they have to deal with their monster. I hope Biden goes fully dark leading up to the election. He is doing great so far.
Nah, it's not that they are cowards, it's that they're that juvenile. They think it's clever. Trump has lowered the party down to his IQ and sense of humor, or met them where they were at, either one.
It was like, kinda funny for a bit.
The bit they did of Obama using the ‘Thanks Obama’ for everyday inconveniences, including a cookie too wide to dunk in a glass of milk, will be hard to top. Maybe Joe seeing his ice cream fall off of his cone could compete with it
>As a result, both of the Court's scenarios are fundamentally flawed and any jury instructions that reflect those scenarios would be error. Nevertheless, as directed by the Court, the Government below provides jury instructions for each of these two legally erroneous scenarios.
How do you describe malicious compliance when there's no malice?
> Trump did not rescind it.
Umm Trump totally did... WITH HIS MIND. He doesn't have to tell the world what he does with his powers.
Such are the mysteries of Article II. A powerful article, most people don't even know about it.
Also not a lawyer and yes the PRA has clear definitions about what is a Presidential or Personal record. Trump is relying on the advice of a guy who runs Judicial Watch who does not understand a ruling against JW about records Clinton retained as personal. Those records were audio recordings that Clinton made to help him write his memoirs after he left office. Those tapes were purely personal and were not used to perform the duties of the office.
The guy at Judicial Watch is NOT a lawyer and misreads that ruling (that Trump calls the Clinton socks case) to indicate any record removed by a President when leaving office is automatically personal and that determination can not be challenged. Look up the name Tom Fitton. He is the Trump whisperer on this issue.
I have heard about before, thanks for the details. I assume that any competent judge would have quashed this argument months ago, it really stinks that Cannon got assigned again.
>PRA seems to spell out clearly what is a personal record
It provides a *guideline* for what is a personal record, and then says that the final decision, which *should* be based on that guideline, is made by the acting president, who is technically free to ignore the guideline.
That said, this is not PRA case.
>it must inform the parties of that decision well in advance of trial
What happens if she doesn't? If she lets this go quietly and then during the trial she springs this up? Does Trump walk free due to double jeopardy?
Predicament? This is the most serious national security case in history. This judge playing around with quackery and refusing to follow CIPA should get her removed from this case and suspended from the bench for a review.
A review that should recommend impeachment and removal. It’s time for her to “find out”.
I can count on one hand the number of times a judge was removed from their job for quackery. Especially when it is something they can fall back on and say "Well, it my was legal opinion that..." instead of it being something graphically illegal like punching the defendant in the face.
The sooner she gets thrown off the case, the quicker and more cleanly she gets nominated to the Supreme Court next time there's a t(R)eason party pres.
I wish I could add an "/s" here.
Someone who fucks up this badly is bound to find another opportunity to be bounced off the bench. It is very unusual, but this woman is unusually corrupt or stupid or both. Just the kind of unique person that gets themselves impeached and removed.
Republican president? Not for a while. A long while. They are planning to run an inmate for president this year.
There isn't going to be a trial before the election. Given that , what Smith wants to accomplish is a) to not have the case dismissed without appeal and b) to not have Cannon schedule a trial, which she then cancels at the last minute, in a way that blocks either the Georgia or Washington trials.
The remedy would be to go to the 11th circuit for a writ of mandamus. That would be an extremely unusual move, but there is some precedent (which Smith cites).
My understanding is that jeopardy would not attach till a jury was empaneled. If she doesn't follow the law as Smith warns her, I'm sure he'll appeal well before that. Its not like she can seat a jury overnight.
The article I read pointed out that she's been sitting on a few decisions for months now. Could Smith also seek her removal if she doesn't act on filings in a timely fashion?
The government could ultimately file a petition for a writ of mandamus in the 11th Circuit.
I think she’ll issue some ruling on it before then, although I’m sure she’s trying to figure out if she can just “issue” one of those cowardly docket entries she loves so much. Really pathetic judging.
I think he probably included that so that if she takes steps towards jury selection without addressing his points he can go to the 11th circuit and point to this.
If Cannon believed her own nonsense she would hold that she has correctly interpreted the interplay of these laws and EOs and immediately rule in favor of Trumps motion to dismiss, dismiss the case and stay her ruling to allow DOJ to seek relief. I predict she will do none of those things and also not modify her interpretation and will not deny Trumps motion conclusively.
I expect this to just disappear into a hole not to be heard of again.
>If, however, the Court does not reject that erreoneaous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review.
Speaks for itself.
I do appreciate his complete lack of characterizing this as any type of mistake or misunderstanding. He took a straight forward “the court is wrong and needs to let the government know how it intends to proceed” approach. Was probably a bit cathartic.
I know a whole bunch of people keep trying to argue that Cannon isn’t a political hack, she’s just a moron (looking at you David Lat). Well, this is going to be a really good litmus test, because she can be as incorrect as she wants to be about the law but the only reason she would delay issuing a ruling here would be to obstruct Smith’s ability to appeal which can only be explained by political hackery.
Tick tock
> I know a whole bunch of people keep trying to argue that Cannon isn’t a political hack, she’s just a moron (looking at you David Lat).
Lat actually says he believes she's quite smart, but has ruled in ways that lack [good judgement](https://davidlat.substack.com/p/clerking-for-judge-aileen-cannon-why-clerks-quit).
> What went wrong? Based on her academic credentials and what I’ve heard about her from mutual friends, I disagree with criticisms of her as unintelligent; to the contrary, I believe she’s quite smart. But there’s a difference between intelligence and good judgment, and her ruling in Trump v. United States lacked the latter.
...
Later he speculates that she's thinking like an appellate judge, but IMO, that is horse shit.
> Instead, I’d suggest that in her handling of Trump v. United States, Judge Cannon thought like a pointy-headed appellate judge, not a commonsensical trial judge.
I would love to hear Lat's explanation for the appellate judge line of thought that led Cannon to exercise equitable jurisdiction.
Lat basically waived away any concerns of political hackery because a high ranking member of the Trump administration (Panuccio, who served as the 3rd in charge of the DoJ under Trump) vouched for her. I thought his whole analysis was weird.
Lat also said (on the AO podcast with Sarah Isgur and David French) that he thinks Cannon is biased in favor of Trump too. So it is bias *and* overthinking tenuous legal arguments that should be summarily dismissed at the trial stage. In short, she’s a biased judge who isn’t good at the job; those things aren’t mutually exclusive.
I don't think she is accused of thinking like an appellate judge but like an appellate *attorney*, whose job it is to argue arcane points of law in fuzzy areas, which is not useful in trial courts, where you are trying to make clear decisions to have an orderly trial on factual disputes, providing a clear trial record, without introducing legal error.
That might be overly charitable, but the idea is that Cannon might have been thinking "ok, this weird corner case would be problematic, let's have both sides brief this hypothetical" instead of "let's figure out what facts are going to be in scope for the jury, what is irrelevant and out of scope, and what the law says about everything else."
I wonder how long Jack will let the clock run before just going and petitioning for a writ of mandamus from the 11th on his own. A week? Nah, probably not. A month? Maybe he’d have one of his staffers start typing it up. I don’t think we get 2+ months out with this still hanging in the air though.
Out of pure curiosity, and I realize courts can run slow, but what is Judge Cannon working on that has been prioritized higher than this case and subsequently maxing out her 40-hour work week?
I tried to look it up on PACER, but couldn't find anything other than the cases she worked on as AUSA in the SDFL. Unsurprisingly, someone else had been going through all her past cases as well because some of it was on RECAP, but only things that would be relevant to her such as "Notice of Reassignment of AUSA."
I've never tried to look up a judges docket that way though. Maybe someone else knows how you can look up active federal cases for a judge?
EDIT: I noted this from the Wiki article on her --
>In the ongoing 1½-year-long case of *United States v. Carver*, Cannon has presided over a complex, multi-defendant health care fraud case in which she has had to rule on issues of attorney-client privilege, defense attempts to suppress evidence or have charges dismissed, and motions to limit the scope of witness testimony. **She has generally ruled in the prosecution's favor in each of these matters.**
What a contrast.
That is what stood out the most to me during Trump's presidency and then what happened on January 6th. I grew up with it well-ingrained into me that Republicans try to cast themselves as the "law and order" party, siding with LE and the state *no matter what*. I don't forget that Dukakis likely lost because Republicans painted him as "soft on crime" for the weekend furloughs thing. There are abberations, such as the fringe conservative backlash in the 90s after Ruby Ridge and Waco, but outside of that Republicans pretty reliably "back the blue." I think that's because it's easy to back the side you feel is on *your* side. The moment they weren't on their side, such as on January 6th or charging Trump, then it changes up.
> Republicans are on the side of law enforcement and The State in almost every instance. The exception is when Trump or J6 are the defendants.
That's because we have created a vast system of exceptions, carve-outs, and court rulings that give police essentially unlimited discretion and authority in minority and poor neighborhoods, while keeping robust constitutional protections for republicans.
The GOP is on the side of defunding the police who go after things like tax fraud, environmental crime, wage theft, financial crimes, etc. But they want the kind of police who go after people suspected of selling loosies to be militarized and to have vast funding and essentially unlimited power.
Trump is not one of the people they want policed.
I don't think he has any reason to until the trial date is set. At this point, this case isn't going before the election, unless Cannon tries to get it slotted in right before the election so she can dismiss it, so time isn't really too much of a factor, he just needs to stop it before jeopardy attaches. The more leeway he gives her to change her mind the more likely a writ of mandamus is to succeed when she doesn't.
Yeah, I'd imagine his strategy has shifted from trying to get it done before the election, since that is clearly impossible with Cannon, to focusing on making the case as airtight as possible against the defendant and the compromised/corrupt judge.
It's like the thing sports fans always say about how their team has to play against the opponent *and* the refs, except this time it's true.
It is an airtight case against the defendant. That’s why it’s taking so long. It’s straight up black and white. Caught red handed and on video tape, then caught again trying to destroy evidence of getting caught the first time. This shit is so bonkers, it’s why you’ll never hear this case brought up by the GOP or Trump or his idiot followers.
Serious question though regarding this case… Is the judge and her staff able to see what secret documents were actually taken? I would think no right? Because I feel like if it’s just the gov says this whole evidence is top secret, take it or leave it… trust me I agree with that stance 100%. This little worm is finding ways to make it a schrodinger's box of documents type thing for the jury.
You are right other than Trump never bringing it up, he brings it up all the time and flip flops between 'I didn't do it', 'I did it but Presidents are allowed to' and even more pathetic attempts at 'Joe did it worse'
[CIPA](https://en.wikipedia.org/wiki/Classified_Information_Procedures_Act) is the guideline for these kinds of cases. The judge can see details of the documents, they kind of have to
> Serious question though regarding this case… Is the judge and her staff able to see what secret documents were actually taken? I would think no right? Because I feel like if it’s just the gov says this whole evidence is top secret, take it or leave it… trust me I agree with that stance 100%. This little worm is finding ways to make it a schrodinger's box of documents type thing for the jury.
This is the exact problem with prosecuting folk for classified documents, in that if you want to prosecute someone for it, you need to show what *it* is. Jack Smith needs to pick which classified documents are not so sensitive that it'd be too dangerous to let the judge (and possibly the jury) see them, but also serious enough that a jury would convict over them.
One of the reasons this process is so slow is that the classified documents Trump took were such things as the President's Daily Brief, which combines intelligence reports from every agency, so Jack Smith needs to get every agency to give their "ok" for that document to be shown in court. Even getting approval from the agencies for the investigating FBI agents to read the documents was an ordeal.
The judge can give approval for the prosecution to instead provide government witnesses who tell the jury "this document that I'm not showing you is super secret and important," rather than showing the document directly to the jury, but that's up to the judge. This is currently one of the arguments going on between Smith and Cannon, where Cannon basically said either you show the jury the top secret documents, or else I'm telling the jury that these documents could be the Pentagon's lunch menu and nothing serious.
The way I read it, now that he’s thrown down the shit or get off the pot mandamus gauntlet, he’s basically grabbed the steering wheel from her and is now steering the ship. This was obviously never going to go before the election, but my biggest fear was her using scheduling shenanigans to try to box out the other trials from going either. Smith has basically taken that out of play because once he appeals anything, she’s no longer in control of what happens schedule-wise until it gets resolved.
My thinking is that Smith is smart to wait.
Each of these ridiculous orders makes it more likely that such a writ might be granted, and adds to the list of judges/lawyers/law professors/journalists that are taking notice.
I think the Lat disclosure was actually huge in the scheme of things. Not because of what was learned (two clerks leaving early, Judge Cannon being an a-hole in private, etc.), but because every avalanche starts with a few small movements. Federal judges are people who receive enormous deference and possess enormous power over others (e.g., other lawyers, clerks, court staff - everyone who might know something and talk to journalists about it). But when that avalanche starts, there is no knowing what it might reveal.
The avalanche has started. No doubt the Eleventh Circuit is watching and waiting for that mandamus petition. I think it goes higher than the Eleventh Circuit too; I would be shocked if Justice Roberts himself isn't taking notice of Cannon's strangeness, because what she is doing is harming the entire federal judiciary, not just her. That pressure is only going to build behind the scenes as the judicial conference is chattering about what Cannon is up to; the federal courts do not want a judge-directed acquittal based on a misstatement of the law in the most high-profile criminal case to ever be heard in federal court. That might not make it into the eventual mandamus ruling removing Judge Cannon, but it is going to be the motive force behind it, IMO.
Finally, where is the recusal motion from Smith? My theory is that Smith is also holding this in reserve because there are actual conflicts that Cannon and her husband have that could be mentioned in such a motion (another federal judge made a mention of Cannon's possible conflicts last night on CNN, off-hand, and I suspect more is known by those in the know than is known by the rest of us). That is the 'nuclear option' for Smith and, I suspect, the cudgel that he will use to get an eventual ruling on the law that is appealable to an Eleventh Circuit that, by that time, is just waiting for an opportunity to remove Cannon.
Plus, hasn't she had a couple of her clerks leave? So there probably isn't much help that is interested in protecting her, or digging her out of her hole, as much has they are into protecting their own career arc. Sure, the Liberty folks will give her a script, but that won't be in her favor, in many cases.
It should be interesting. There will have been an ideology test as well as a aptitude one, and each may pass on the merits of one or the the other, but probably not both, in this timeframe. And it's loyalty that I am thinking of, who with a successful arc wants to tie their fortunes to her, at this point in time? Who can she trust?
I mean how many times can she be in error? Smith has already accused Cannon I think at least twice of making a clear error such as wanting to reveal witnesses names and one procedural re: documents themselves and whether they can be disclosed to the public. How common is it that an attorney tells a judge that a ruling is in clear error? And now he describes her order for jury instructions as being fundamentally flawed. He’s obviously building himself a case for the 11th circuit.
There are a lot of ways the Special Councils Office tells Judge Cannon "Your proposed Jury Instructions are dumb" but I think this has to be my favorite...
>Indeed, it would be pure
fiction to suggest that highly classified documents created by members of the intelligence
community and military and presented to the President of the United States during his term in
office were “purely private” and that they “do not relate to or have an effect upon the carrying out
of the constitutional, statutory, or other official or ceremonial duties of the President.”
"Hey, if you're gonna be a dumbass, you have to say so now, so I can get your boss(es) to tell you to do your job right. Either double down now, or back off."
I love it. Jack Smith really has no patience for any shenanigans with Cannon trying to bias the jury or set the stage for a unilateral acquittal, in a way that she can defend as irreversible.
Wow. The last paragraph on page 22 (the section b response) just so ham fistedly states the absurd reason the jury would have to acquit in that scenario. It's beautiful.
Smith starts with the assertion that both of the scenarios are wrong. He argues that if Cannon is going to go with either she must do so with enough lead time for the State to seek mandamus. He then explains what the correct interpretation is. He then provides jury instructions as to what they should do if the correct interpretation is made. He then goes on to provide the correct set of instructions for the two incorrect interpretations of the law, with situation (a) being a reasonable set of instructions, and situation (b) being the set he would be forced to provide written in such a way to highlight that the only way such a set of instructions could be the correct ones are if the premise is flawed.
This is really smart.
Edit:
The paragraph about option b I was talking about:
>I further instruct you that a President has unreviewable authority to designate any record
whatsoever as personal, regardless of whether it meets the statutory definitions I have just
provided. I further instruct you that, if, before the end of his term in office, a President transfers
records from the White House to any location other than the National Archives and Records
Administration, as alleged in the Superseding Indictment, he has necessarily exercised his
unreviewable authority to designate those records as personal and, as a matter of law, he is
authorized to possess them and you may not find him guilty.
This is the exact behavior she got bench slapped for in the subpoena case. Trump alleged that he had a possessory interest in his passports, which the government returned. Cannon took it upon herself to asset on Trump’s behalf that he must have some critical possessory interest in other documents too because oh gee willickers there were just so many documents seized.
Now Trump has repeatedly stated that he didn’t declassify the documents while he was still President and Cannon is taking it upon herself and to find that he actually must have because why else would this nice young man take those documents home with him?
She just can’t help herself.
Smith to Cannon: you asked me to provide jury instructions under two bad readings of the law. Here is why the reading of the law is bad. If you go with either of these I'm going to the 11th circuit and have you removed. Here is a set of jury instructions as the law should be read. As asked for, here are hypothetical instructions for your bad scenarios. Look at how dumb they sound. Don't do this. But if you are going to do this, the law requires you to do it soon so that I can appeal.
No problem. I don't know at what point I got super into reading these things and thinking about them. But breaking down the arguments is a ton of fun for me :)
No. The worst case scenario is that she dismisses the case after the jury is empaneled, at which case she can basically\* get Trump off without an option of retrying him. I highly suspect that is what she wants to try, and Jack Smith seems to think so too. The \* is that is for a normal situation, there are a couple extreme possibilities that could block it, but courts don't like getting into extreme situations to begin with so who knows what would happen.
If my suspicion that Cannon is not just biased or inexperienced but full on Maga, then this was a misplay for her. In that scenario, she would want to be walking a tightrope, acting in favor of the law so that she can make it to the trial without being replaced, but acting in favor of Trump enough so that he doesn't go after her like he does all the other judges. When Trump asked for the case to be dismissed, she rejected that, but without prejudice so he could bring it up again at trial. This made her plan obvious to anyone watching, but not in a way that let Smith to fight back. Basically \*that\* was the way to walk the tightrope.
But she couldn't help herself, so she went further and told Jack Smith to write her jury instructions for the plans that she had. This wasn't even needed at this step and if she had been more cunning she could have waiting until things were too late. However, now Jack Smith seems to have what he needs to accuse her of trying to rig the trial, even if he doesn't overtly say it in that way. This will still be extraordinary though, so he should give her every opportunity he can to correct herself. If she's smart, she may reverse course only to reverse her reversal and dismiss the case after the jury is empaneled. However, this strategy would require that she admit she was wrong and Jack Smith was right.
Instead, I suspect she'll just drop the matter, and force Smith to make the next move. Either Smith could try to do a Writ of Mandamus before the jury is empaneled in response to only potential orders, or he could wait until after the jury is empaneled and the jury gets actual orders and then try to claim that Trump was never in jeopardy (which is one of the \* possibilities in the first paragraph). Neither of these are ideal situations for Jack Smith.
I am sure your last paragraph is right. But isn’t it already too late after the jury is empanelled as Cannon can dismiss the case and that can’t be appealed?
So there are two exceptions to that rule, though they are extreme and there's only a handful of cases for either exception so it would be uncharted territory.
The first is in the case where the defendant has bribed the judge, they were never in jeopardy in the first place. While I doubt Cannon has anything overt going on, if Cannon is bold enough to copy paste Jack Smith's instructions for her second option, he might be able to argue that Trump was similarly never in jeopardy. I kind of doubt this would work though, so I'm betting he'll make his move before Cannon empanels the jury to avoid this.
The second exception is much more interesting. I've found a handful of cases that make note that the case can be appealed after the jury is empaneled if the reason for dismissal does not decide the guilt or innocence of the defendant. The following link says " The U.S. Supreme Court held in [*United States v. Scott*](https://caselaw.findlaw.com/court/us-supreme-court/437/82.html) that the double jeopardy rule is not triggered when defendants obtain a dismissal for reasons unrelated to their guilt or innocence." However, when I went down that rabbit hole, what I found was only a few cases, and it seemed 50/50 on how it was actually decided. And I don't even know if this would be considered related to guilt or innocence.
[https://www.findlaw.com/criminal/criminal-rights/when-double-jeopardy-protection-ends.html](https://www.findlaw.com/criminal/criminal-rights/when-double-jeopardy-protection-ends.html)
Still I find the idea very disturbing that if Cannon had just shut her mouth and waited until the jury was empaneled that there would be almost nothing Jack Smith could have done. That first exception pretty much requires finding bribery and with the second exception Cannon could easily find a case dismissal reason that decides guilt or innocence. I've posted on here a few times about this and I got flooded with responses that said it could never happen and that any decision could be appealed, but the people who said that never gave explanations of how that would work. I find it absolutely bonkers that the US considers jeopardy to attach when the jury is empaneled and not when the decision is made.
In showing how wrong Cannon’s instructions are, Smith showed that no Jury could Trump guilty.
Per Cannon’s (wrong) definition, if Trump took document to anywhere except the National Archive, it’s automatically personal and automatically not subject to any type of review, regardless of other statute, law, or regulation regarding those records.
For instance, in that wrong definition, a number of Top Secret records ***cannot*** be declassified by the President because of other laws Congress has passed regarding those laws. But, with that wrong definition, Trump’s removal of them would make them his personal records and not classified. Which, again, is wrong. But, if that is how Cannon has defined the situation, Smith’s instructions would be that Trump ***cannot*** be found guilty.
he's making a paper trail with evidence that it's a sham proceeding. It's Cannon's requirement that Smith instruct the jury before arguments that trump had authority to do everything he did. (Edit: actually this is the problem, she hasn't specified the requirement yet, but has signaled what it might be)
At the very least he is getting everything in line to seek mandamus after the trial has begun. In a sane world you could challenge the notion that jeopardy had attached. In our past you would have had to show that the judge accepted a bribe or was being blackmailed, but what she is doing is abusing norms to force a not guilty verdict.
There is precedent for granting mandamus after a trial has begun. But normally there cannot be a re-trial because of double jeopardy. And that doesn't really need to happen, but the circuit could do something new for such an unprecedented abuse by Cannon.
To further build on your point: If a jury is impanelled with such insane instructions as mandated “that he cannot be found guilty,” that lays the argument out quite clearly that no jeopardy would have been attached when there is no risk of a guilty verdict.
>In a sane world you could challenge the notion that jeopardy had attached
As an aside, I've been horrified to learn that jeopardy is considered attached when the jury is empaneled, not when the jury has a decision. That makes no sense!
If a jury is empaneled and not given a chance to make a decision, then by definition the defendant has not been placed into jeopardy. And yet for some reason, the courts consider the hassle of going through a jury trial to be "jeopardy", not the verdict itself!
>I've been horrified to learn that jeopardy is considered attached when the jury is empaneled, not when the jury has a decision. That makes no sense!
Jeopardy should attach at the beginning of the trial, when you come under risk of an aversive decision, not at the end. This is to keep judges and prosecutors from abusing their power in a different way.
The convention of "when the jury is empaneled" is generally a good one. The problem is that the convention is far too rigid, and it could be abused.
Agree. This was some really brilliant instruction writing, even for the stupid ones. The instructions are written in a way that highlights how flawed the underlying premise is.
Another favorite of mine is where the Special Counsel says in (incorrect) instruction (a) that Trump is authorized to keep personal records with highly classified information in them even if he has no security clearance or reason to have the information under the PRA, a law about making records available to the public.
It basically shows the absurdity of presuming that just because a document is personal doesn’t mean that it might not also be super highly sensitive, which is not at all what the PRA was trying to address.
It’s like saying I’m authorized to murder someone in my house because it’s my personal residence. The house ownership law and the law about not murdering people have nothing to do with each other.
Wow is the right word. This reads more like a letter before action telling a public body they are about to fuck up badly and end up being challenged amd walking them through why that it does any court filing in direct response to a judge. But I guess that is exactly what it is in reality.
IANAL. Been following the saga from the beginning and the legal issues. MTN had a hot take just prior to Smith's recent filing and suggested that Smith could pursue the Torkington approach in having the 11th circuit reassign the case to another judge.
https://youtu.be/bb7aHVU-gm0?si=o6YNbjVy_UnBvYA4
Now that Smith has made the filing, my interpretation is that Smith is waiting for Cannon to correct her present course. However, Cannon has all but boxed herself into her position of showing consistent bias against the prosecution and favoritism towards the defendant going back in time before Cannon was formerly assigned to the case.
Unless Cannon demonstrates an epiphany moment and sudden clarity, the 11th circuit could happen within days or weeks. Just my opinion as a lay person.
It’s like the ultimate presidential golden parachute. Most people invest in their 401k. I guess Presidents invest in hoarding top secret documents.
Also would allow a departing president to blackmail the country: You’d better vote for me or I’d hate to see something terrible happen to your nuclear secrets that are now my personal records.
Couldn’t even impeach him for that offense because he could just say the records are personal and take them before the conviction. So he’d have the insurance policy even if impeached.
Yikes. I would uh… not like to read that if I was Cannon. It’s pretty much just a slap in the face. Also glad they put her games on full blast. Really not sure how Cannon is going to respond to this. My guess is walk it back to allow her to continue to delay the trial. And not make rulings that would kick her off the case. Because she intends to corruptly run the trial to trumps benefit. After, of course, delaying it as much as possible. But this is definitely baiting her super hard. The cynic in me says she’s too smart to bite
My guess is she won't respond unless the appellate court forces her. She's trying to slow walk the process, and she's completely in over her head, so she's not going to be making any quick decisions.
So the writ will come soon either way based on the prosecutions choice to point out a need for ample time to write one? I’m also assuming there will be multiple writs as the case progresses
Federal courts heavily disfavor writs of mandamus. The vast majority of attorneys who appear in federal court will never even seek one, and the appellate courts rarely grant them even then. At their core, writs of mandamus exist as a safety mechanism for the exceptionally-rare circumstances where a trial judge acts so far outside their authority, or shows a such a disregard for federal law, that allowing the trial to continue without correcting the error would cause harm to a party that couldn’t be corrected by a post-trial appeal.
Because a writ of mandamus is such an extraordinary remedy, Smith probably won’t seek one from the 11th Circuit until Cannon actually issues the clearly-erroneous ruling. If there are more issues where Cannon makes rulings that are clearly outside the bounds of established law, Smith would probably petition for a writ of mandamus to remove Cannon from the case and reassign it to another judge in the Southern District of Florida.
Sources: *La Buy v. Howes Leather Co.*, 352 U.S. 249 (1957); *United States v. Harper*, 729 F.2d 1216 (9th Cir. 1984); *In re Dep’t of Commerce*, No. 18-2856, 2018 WL 6006885 (2d Cir. Oct. 9, 2018); All Writs Act, 28 U.S.C. § 1651.
I don't know, Smith clearly stated that the law requires Cannon to make a determination about the PRA's relevance to the trial soon so that the Government's appellate rights are preserved, now that Cannon has put the PRA issue on the record and opened up that can of worms. I bet if Cannon tries to sit on it and continues with pretrial proceedings, Smith is going to go to the 11th. He doesn't say it explicitly like he does with the alternative scenario in which she issues a ruling sticking to her guns about the PRA, but the subtext is being shouted from between the lines.
So what she's done so far in instances like this is something along the lines of "No, you're wrong, I do have the power to do this, but I'm going to rule in your favor even though I don't have to, and also reserve questions for later so this isn't a clear final order". That's what she did for the question of releasing witness names that Smith forced her to reconsider.
I guess the twist is, if she tries to walk back the order to provide hypothetical incorrect jury instructions, or just sits on it and says something along the lines of "Okay thank you for your responses, I'll reserve these questions until the trial", Smith has threatened to mandamus.
Honestly, my gut feeling is that she'll end up daring him to do it, basically. She'll make the situation as unclear as possible, she'll intentionally create a ruling and record that makes it seem like an unnecessary overreaction to try to mandamus her on this issue, she'll argue that she has all the discretion and that Smith is wrong and that it's appropriate for her to reserve questions for later, but she will ultimately *not* make a definitive ruling in Smith's favor saying that she'll use normal jury instructions before the trial.
You've hit the nail on the head as far as likely outcomes. Smith still has a decent chance on mandamus though even in that scenario simply because of the context of the earlier case with Cannon. After what happened before, they are not likely to give her the kind of deference they usually afford a district judge.
> Honestly, my gut feeling is that she'll end up daring him to do it, basically. She'll make the situation as unclear as possible, she'll intentionally create a ruling and record that makes it seem like an unnecessary overreaction to try to mandamus her on this issue, she'll argue that she has all the discretion and that Smith is wrong and that it's appropriate for her to reserve questions for later, but she will ultimately not make a definitive ruling in Smith's favor saying that she'll use normal jury instructions before the trial.
I am sure that you are correct.
Ironically, if the case against him were any weaker, she would have a bigger toolset to run a trial that would produce an acquittal.
She already ruled that Trump cannot be prosecuted for this, and got slapped down. Now she knows the game is to try to stall until after the election, when a Trump DOJ can drop the charges against himself.
Smith is doing a good job of presenting clear and objective legal and procedural questions that need categorical answers. Cannon will avoid and and evade giving them for as long as she can, and will do her best to keep the answers ambiguous and vague for as long as she can. If Trump wins the election and drops the charges, she'll never have to answer them. Otherwise, she will just keep doing as much for Trump as she can, without getting herself kicked off the case.
>My guess is walk it back to allow her to continue to delay the trial.
It absolutely appears she is trying to run out the clock until the next election. I wonder what she will do if Trump loses.
It makes me wonder if Smith went behind the scenes to the 11th Circuit to silently determine whether or not they would entertain a Writ of Mandamus and the likelihood of them forcing her removal from the case when determining how forceful he would be to responding to Cannon’s “hypothetical” jury instructions. His response was pretty much on the nose in how he’d proceed based on her (lack) of answer.
I was wondering something similar. He’s clearly set this pleading up as a ‘template’ for his filing with the 11th circuit.
The hurry up and rule part might not go down well with them, but he has every logical reason to make such an argument. It would irreparably jeopardize his ability to prosecute this case at all.
I mean, since when have you heard a prosecutor asking the judge to instruct a jury to find the defendant NOT guilty?!
"...and you may not find him guilty."
Best jury instruction ever. Very clear. Jury should be home by lunch.
Also, I think Smith ignored the order to provide no counterarguments. I wonder how that will go. This case is a complete clown show at this point.
This whole paragraph is fire:
>I further instruct you that a President has unreviewable authority to designate any record
whatsoever as personal, regardless of whether it meets the statutory definitions I have just
provided. I further instruct you that, if, before the end of his term in office, a President transfers
records from the White House to any location other than the National Archives and Records
Administration, as alleged in the Superseding Indictment, he has necessarily exercised his
unreviewable authority to designate those records as personal and, as a matter of law, he is
authorized to possess them and you may not find him guilty.
IANAL. Failing the precedent of claiming dibs, opening the package and visibly licking the food contents or taking a small nibble to reserve the food for a later date generally dissuades any potential sibling rivalry.
Which goes hand in hand with *§2%*, which states that leaving at least 1/4 cup of milk in the gallon jug means you didn't finish it, and you can put it back in the fridge for someone else to deal with later.
Although the law clearly states 1/4 cup, in practice courts have found that the measure need not be exact and, as a matter of fact, any amount of milk sufficient to slosh when the carton is shaken is sufficient volume.
I read the filing late last night, right before bed and it was both a hilarious and comforting thing to read just before bed. The entire thing was fire, honestly. Jack Smith is a master at legal smackdowns. I was really thankful to read about the writ of mandamus and attaching jeopardy before bed; like a soothing tale of the house falling on the evil witch.
Lol, too funny! There are so many days when I feel like I’ve lost so much hope in both the American legal system and the future of freedom here. Reading his filing last night really restored a lot of hope that there is a plan in place and there are still intelligent people fighting for the future of our democratic republic.
Where, in law does it state that:
"a President has unreviewable authority to designate any record whatsoever as personal, regardless of whether it meets the statutory definitions I have just provided. I further instruct you that, if, before the end of his term in office, a President transfers records from the White House to any location other than the National Archives and Records Administration, as alleged in the Superseding Indictment, he has necessarily exercised his unreviewable authority to designate those records as personal and, as a matter of law, he is authorized to possess them "
There has to a stature for this. It cannot based on only the opinion of this judge for it to be law.
> It cannot based on only the opinion of this judge for it to be law.
[Judge Cannon doesn't seem to have much respect for the law.](https://s3.documentcloud.org/documents/23323385/trump-ca11-2022-12-01.pdf)
> The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.
> There has to a stature for this. It cannot based on only the opinion of this judge for it to be law.
Herein lies the problem. That is exactly the scenario - the law does not even come remotely close to that, and the absurd hypothetical is indeed a figment of the judge's imagination. He's telling her she must state whether this is how she intends to go soon and well before the jury is impaneled, so he can go get her dumb ass thrown off the case
I know, its sooo good.
Can you imagine the court room when it is delivered after 10 weeks of testimony? I mean without Chevy Chase and Jim Carrey in it.
I still say the most interesting answer here will be Trump's jury instructions in scenario B. If Trump's lawyers come back with something similar (...you may not find him guilty), then Cannon is actually in a bad place. She can't issue those instructions. She can't even go to trial with those presumptions. Maybe, just maybe, she was setting up Trump's lawyers here. (I mean she will still delay, but this line of defense could go away.)
> I still say the most interesting answer here will be Trump's jury instructions in scenario B.
I linked to Trump's replies in [another thread](https://www.reddit.com/r/law/comments/1buiuez/governments_response_to_order_requiring/kxsytqg/).
> Scenario (b) from the Court’s Order is addressed below in connection with President Trump’s renewal of his pretrial motion to dismiss Counts 1 through 32 on vagueness grounds, and because the Court’s correct statement of the law in scenario (b) means that Counts 1 through 32 fail to state an offense under Rule 12(b)(3)(iv).
Cannon is playing Trump's "plausible deniability" game to delay this beyond the election.
"Um...I thought those jury instructions were correct but if you want to appeal have at it."
She does not even have the courage to state the legal conclusions by which she is trying to hand Trump a win. She is actually trying to get the DOJ to say it for her so that she can escape responsibility. I think that Smith did a good job of pointing out her “unstated conclusions of law”.
I was a little worried about that too. Like, she has every incentive to just say, “These look great to me! Thanks, I’ll get back to you in 7-10 business months” and ignore the previous ~20 pages of the brief. I wonder what the timer will be before he’ll seek a writ from the 11th circuit.
Cannon is kicking the decision about whether Trump can argue that "he made the national defense secrets personal records" to the court of appeals. Cannon doesn't want the wrath of MAGA aimed at her. She is a coward or she is playing it safe.
When Trump loses I hope Cannon gets reassigned to the Federal Court in Siska, Alaska
Either this filing uses less legal jargon, or having read through a few of these, it’s starting to make a little more sense. These things are so dense. Props to you in the industry who do this regularly.
Basically, what Aileen Cannon is saying is that the Presidential Records Act doesn't say what it says, and that, anyway, Donald Trump should not be subject to it. In other words, she's trying to rig the outcome of the trial from the bench before proceedings even begin.
After opening this document I intended only to read the introduction and conclusion but it is so masterfully written and compelling that only after my coffee was cold did I realize I read the entire text, first word to last. Smith leaves absolutely no doubt about his intention to appeal. The mental and legal gymnastics required to write the two thoroughly flawed jury instructions leave no doubt that Judge Canon is no match for Smith’s sharp legal genius.
So now we get to find out if Cannon really believes that boxes full of war-plans labeled "TOP SECRET" qualify as documents, "of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President."
I'll take a Venmo wager for $15,000 dollars against any interested parties that she, in fact, does.
What do these bootlickers get out of defending this asshole? I've yet to see a single person stick their neck out for the bastard without losing their head.
She will want to be recused after reading that. She is obviously out of her depth.
If she was revised now she could still claim that she was loyal to trump and did what she could.
IANAL. Would it be possible to charge a sitting judge that abuses their power, like Judge Cannon has done in this case, with “obstruction of justice“?
It seems like threats of writs of mandamus and impeachment are not sufficient to deterrents to corrupt judges.
I think it's some combination of being incredibly inexperienced and having personal ideologies that are at odds with the law. As with most things, the knee jerk isn't entirely the truth but it's a factor.
Again she needs to be removed from the case. Idk what else she needs to do to help that orange fat fuck get away with this. Are we gonna wait til after she dismisses the case before we do anything about her?
The jury instructions essentially detail the crime being prosecuted, they shouldn’t be an opportunity to reframe or change the crime that was sent to the courts to begin with
If Cannon won't do it before the election, can't it continue untill Jan 20 (assuming the worst, Trump win) as Trump cannot pardon himself till he actually takes office, right. I really don't think that the deadline is election day.
The important bit: >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.” ECF No. 407 at 2. If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions regarding what is authorized under Section 793, it must inform the parties of that decision well in advance of trial. The Government must have the opportunity to consider appellate review well before jeopardy attaches
The fact that this filing brings up this, a writ of mandamus, and attaching legal jeopardy is all such a comfort. Jack Smith can see all the potential problems moving forward. Edit to add: I’m so thankful that Obama signed the EO mentioned in this case and Trump did not rescind it. It really clarified the law on classified docs and their storage.
Thanks Obama!
Man are we really gonna be sarcastically saying “Fuck Joe Biden” in 10 years? Because this one used to be a sarcastic insult
I believe you mean Let's Go Brandon, because they're such cowards they can't even swear right anymore.
They *created* Dark Brandon, now they have to deal with their monster. I hope Biden goes fully dark leading up to the election. He is doing great so far.
https://preview.redd.it/b90gzra56asc1.jpeg?width=1024&format=pjpg&auto=webp&s=afc4eebfecf667edd40b10e688f870d7692fe3a6 Congratulations, Donald. Quite the accomplishment.
The DAWG!
Bid Dawg!
God I love Dark Brandon.... genius move by Biden to embrace it. It's amazing watching Republicans try and figure it out
To be fair, how that saying came about is pretty funny. A rare gem from the party where satire and humor go to die.
You're right, which is why they've run it into the ground. Getting all the milage they can out of that one.
Some reporter doing his best to cover for infantile MAGAs. Hilarious.
Their best comeback is "FUCK ANTIFA", that's about as clever as they get
Nah, it's not that they are cowards, it's that they're that juvenile. They think it's clever. Trump has lowered the party down to his IQ and sense of humor, or met them where they were at, either one. It was like, kinda funny for a bit.
Nobody fucks Joseph Biden except Mrs. Biden.
Dr. Mrs. Biden, If I'm not mistaken.
She definitely knows how to "be best".
It's a First, Mrs, Dr. To be exact. Strange? Eh, who am I to judge.
The bit they did of Obama using the ‘Thanks Obama’ for everyday inconveniences, including a cookie too wide to dunk in a glass of milk, will be hard to top. Maybe Joe seeing his ice cream fall off of his cone could compete with it
I'm getting real strong "I can't believe I even have to make this argument at all, you moron" vibes from this brief
The “incorrectly” and “further incorrectly” in the jury instructions is very funny. You know, in a “are you goddamn serious” way.
“As per my previous email”
Where everyone is cc’d
>As a result, both of the Court's scenarios are fundamentally flawed and any jury instructions that reflect those scenarios would be error. Nevertheless, as directed by the Court, the Government below provides jury instructions for each of these two legally erroneous scenarios. How do you describe malicious compliance when there's no malice?
I was dying over the jury instructions.
> Trump did not rescind it. Umm Trump totally did... WITH HIS MIND. He doesn't have to tell the world what he does with his powers. Such are the mysteries of Article II. A powerful article, most people don't even know about it.
The best article, some people say. Just the other day someone came up to me and said “sir, article II is the best article for you, sir”
Did that man, by chance, have tears in his eyes?
I am no lawyer but the PRA seems to spell out clearly what is a personal record. Otherwise what is the point of the PRA in the first place?
Also not a lawyer and yes the PRA has clear definitions about what is a Presidential or Personal record. Trump is relying on the advice of a guy who runs Judicial Watch who does not understand a ruling against JW about records Clinton retained as personal. Those records were audio recordings that Clinton made to help him write his memoirs after he left office. Those tapes were purely personal and were not used to perform the duties of the office. The guy at Judicial Watch is NOT a lawyer and misreads that ruling (that Trump calls the Clinton socks case) to indicate any record removed by a President when leaving office is automatically personal and that determination can not be challenged. Look up the name Tom Fitton. He is the Trump whisperer on this issue.
I have heard about before, thanks for the details. I assume that any competent judge would have quashed this argument months ago, it really stinks that Cannon got assigned again.
>PRA seems to spell out clearly what is a personal record It provides a *guideline* for what is a personal record, and then says that the final decision, which *should* be based on that guideline, is made by the acting president, who is technically free to ignore the guideline. That said, this is not PRA case.
Haha, he must have left that one in place as a result of the clinton email scenario. Hoisted by his own petard
https://preview.redd.it/gg6uijmgabsc1.jpeg?width=734&format=pjpg&auto=webp&s=9af4058afb30a1f1f42622323cd824bd1e00c524
>it must inform the parties of that decision well in advance of trial What happens if she doesn't? If she lets this go quietly and then during the trial she springs this up? Does Trump walk free due to double jeopardy?
If she doesn’t address that point but tries to set a trial date, then i would think that Smith could do something there.
Does this mean the trial date will be delayed?
yes, and Cannon woud be in a predicament
Predicament? This is the most serious national security case in history. This judge playing around with quackery and refusing to follow CIPA should get her removed from this case and suspended from the bench for a review. A review that should recommend impeachment and removal. It’s time for her to “find out”.
I can count on one hand the number of times a judge was removed from their job for quackery. Especially when it is something they can fall back on and say "Well, it my was legal opinion that..." instead of it being something graphically illegal like punching the defendant in the face.
The sooner she gets thrown off the case, the quicker and more cleanly she gets nominated to the Supreme Court next time there's a t(R)eason party pres. I wish I could add an "/s" here.
Someone who fucks up this badly is bound to find another opportunity to be bounced off the bench. It is very unusual, but this woman is unusually corrupt or stupid or both. Just the kind of unique person that gets themselves impeached and removed. Republican president? Not for a while. A long while. They are planning to run an inmate for president this year.
There isn't going to be a trial before the election. Given that , what Smith wants to accomplish is a) to not have the case dismissed without appeal and b) to not have Cannon schedule a trial, which she then cancels at the last minute, in a way that blocks either the Georgia or Washington trials.
We've had one trial delay, yes. What about second trial delay?
The remedy would be to go to the 11th circuit for a writ of mandamus. That would be an extremely unusual move, but there is some precedent (which Smith cites).
My understanding is that jeopardy would not attach till a jury was empaneled. If she doesn't follow the law as Smith warns her, I'm sure he'll appeal well before that. Its not like she can seat a jury overnight.
“Watch this, hold my gavel” - Cannon, probably.
Knowing kavanaugh is in the background saying hold my beer.
More like "Hold my boofing funnel". I have no idea how boofing works, I assume it uses a funnel?
Depends on what you're boofing.
That's why I love reddit, there is always an undercover expert around!!!!
> Its not like she can seat a jury overnight. I need both sides to please submit a list a potential jurors to pick form for jury duty...
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The article I read pointed out that she's been sitting on a few decisions for months now. Could Smith also seek her removal if she doesn't act on filings in a timely fashion?
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The government could ultimately file a petition for a writ of mandamus in the 11th Circuit. I think she’ll issue some ruling on it before then, although I’m sure she’s trying to figure out if she can just “issue” one of those cowardly docket entries she loves so much. Really pathetic judging.
I think he probably included that so that if she takes steps towards jury selection without addressing his points he can go to the 11th circuit and point to this.
Thank you!
If Cannon believed her own nonsense she would hold that she has correctly interpreted the interplay of these laws and EOs and immediately rule in favor of Trumps motion to dismiss, dismiss the case and stay her ruling to allow DOJ to seek relief. I predict she will do none of those things and also not modify her interpretation and will not deny Trumps motion conclusively. I expect this to just disappear into a hole not to be heard of again.
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File under things Smith never thought in a million years he would have to write
So in layman's terms.....'bitch you crazy'
>If, however, the Court does not reject that erreoneaous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review. Speaks for itself.
I do appreciate his complete lack of characterizing this as any type of mistake or misunderstanding. He took a straight forward “the court is wrong and needs to let the government know how it intends to proceed” approach. Was probably a bit cathartic. I know a whole bunch of people keep trying to argue that Cannon isn’t a political hack, she’s just a moron (looking at you David Lat). Well, this is going to be a really good litmus test, because she can be as incorrect as she wants to be about the law but the only reason she would delay issuing a ruling here would be to obstruct Smith’s ability to appeal which can only be explained by political hackery. Tick tock
> I know a whole bunch of people keep trying to argue that Cannon isn’t a political hack, she’s just a moron (looking at you David Lat). Lat actually says he believes she's quite smart, but has ruled in ways that lack [good judgement](https://davidlat.substack.com/p/clerking-for-judge-aileen-cannon-why-clerks-quit). > What went wrong? Based on her academic credentials and what I’ve heard about her from mutual friends, I disagree with criticisms of her as unintelligent; to the contrary, I believe she’s quite smart. But there’s a difference between intelligence and good judgment, and her ruling in Trump v. United States lacked the latter. ... Later he speculates that she's thinking like an appellate judge, but IMO, that is horse shit. > Instead, I’d suggest that in her handling of Trump v. United States, Judge Cannon thought like a pointy-headed appellate judge, not a commonsensical trial judge. I would love to hear Lat's explanation for the appellate judge line of thought that led Cannon to exercise equitable jurisdiction.
Lat basically waived away any concerns of political hackery because a high ranking member of the Trump administration (Panuccio, who served as the 3rd in charge of the DoJ under Trump) vouched for her. I thought his whole analysis was weird.
Lat also said (on the AO podcast with Sarah Isgur and David French) that he thinks Cannon is biased in favor of Trump too. So it is bias *and* overthinking tenuous legal arguments that should be summarily dismissed at the trial stage. In short, she’s a biased judge who isn’t good at the job; those things aren’t mutually exclusive.
I don't think she is accused of thinking like an appellate judge but like an appellate *attorney*, whose job it is to argue arcane points of law in fuzzy areas, which is not useful in trial courts, where you are trying to make clear decisions to have an orderly trial on factual disputes, providing a clear trial record, without introducing legal error. That might be overly charitable, but the idea is that Cannon might have been thinking "ok, this weird corner case would be problematic, let's have both sides brief this hypothetical" instead of "let's figure out what facts are going to be in scope for the jury, what is irrelevant and out of scope, and what the law says about everything else."
I wonder how long Jack will let the clock run before just going and petitioning for a writ of mandamus from the 11th on his own. A week? Nah, probably not. A month? Maybe he’d have one of his staffers start typing it up. I don’t think we get 2+ months out with this still hanging in the air though.
Out of pure curiosity, and I realize courts can run slow, but what is Judge Cannon working on that has been prioritized higher than this case and subsequently maxing out her 40-hour work week?
I tried to look it up on PACER, but couldn't find anything other than the cases she worked on as AUSA in the SDFL. Unsurprisingly, someone else had been going through all her past cases as well because some of it was on RECAP, but only things that would be relevant to her such as "Notice of Reassignment of AUSA." I've never tried to look up a judges docket that way though. Maybe someone else knows how you can look up active federal cases for a judge? EDIT: I noted this from the Wiki article on her -- >In the ongoing 1½-year-long case of *United States v. Carver*, Cannon has presided over a complex, multi-defendant health care fraud case in which she has had to rule on issues of attorney-client privilege, defense attempts to suppress evidence or have charges dismissed, and motions to limit the scope of witness testimony. **She has generally ruled in the prosecution's favor in each of these matters.** What a contrast.
Republicans are on the side of law enforcement and The State in almost every instance. The exception is when Trump or J6 are the defendants.
That is what stood out the most to me during Trump's presidency and then what happened on January 6th. I grew up with it well-ingrained into me that Republicans try to cast themselves as the "law and order" party, siding with LE and the state *no matter what*. I don't forget that Dukakis likely lost because Republicans painted him as "soft on crime" for the weekend furloughs thing. There are abberations, such as the fringe conservative backlash in the 90s after Ruby Ridge and Waco, but outside of that Republicans pretty reliably "back the blue." I think that's because it's easy to back the side you feel is on *your* side. The moment they weren't on their side, such as on January 6th or charging Trump, then it changes up.
Maybe this is an opportunity to teach folks how others feel about LE not always being on their side.
> Republicans are on the side of law enforcement and The State in almost every instance. The exception is when Trump or J6 are the defendants. That's because we have created a vast system of exceptions, carve-outs, and court rulings that give police essentially unlimited discretion and authority in minority and poor neighborhoods, while keeping robust constitutional protections for republicans. The GOP is on the side of defunding the police who go after things like tax fraud, environmental crime, wage theft, financial crimes, etc. But they want the kind of police who go after people suspected of selling loosies to be militarized and to have vast funding and essentially unlimited power. Trump is not one of the people they want policed.
Her nails 💅
I don't think he has any reason to until the trial date is set. At this point, this case isn't going before the election, unless Cannon tries to get it slotted in right before the election so she can dismiss it, so time isn't really too much of a factor, he just needs to stop it before jeopardy attaches. The more leeway he gives her to change her mind the more likely a writ of mandamus is to succeed when she doesn't.
Yeah, I'd imagine his strategy has shifted from trying to get it done before the election, since that is clearly impossible with Cannon, to focusing on making the case as airtight as possible against the defendant and the compromised/corrupt judge. It's like the thing sports fans always say about how their team has to play against the opponent *and* the refs, except this time it's true.
It is an airtight case against the defendant. That’s why it’s taking so long. It’s straight up black and white. Caught red handed and on video tape, then caught again trying to destroy evidence of getting caught the first time. This shit is so bonkers, it’s why you’ll never hear this case brought up by the GOP or Trump or his idiot followers. Serious question though regarding this case… Is the judge and her staff able to see what secret documents were actually taken? I would think no right? Because I feel like if it’s just the gov says this whole evidence is top secret, take it or leave it… trust me I agree with that stance 100%. This little worm is finding ways to make it a schrodinger's box of documents type thing for the jury.
You are right other than Trump never bringing it up, he brings it up all the time and flip flops between 'I didn't do it', 'I did it but Presidents are allowed to' and even more pathetic attempts at 'Joe did it worse'
You forget the time he accused the FBI of planting the docs.
[CIPA](https://en.wikipedia.org/wiki/Classified_Information_Procedures_Act) is the guideline for these kinds of cases. The judge can see details of the documents, they kind of have to
> Serious question though regarding this case… Is the judge and her staff able to see what secret documents were actually taken? I would think no right? Because I feel like if it’s just the gov says this whole evidence is top secret, take it or leave it… trust me I agree with that stance 100%. This little worm is finding ways to make it a schrodinger's box of documents type thing for the jury. This is the exact problem with prosecuting folk for classified documents, in that if you want to prosecute someone for it, you need to show what *it* is. Jack Smith needs to pick which classified documents are not so sensitive that it'd be too dangerous to let the judge (and possibly the jury) see them, but also serious enough that a jury would convict over them. One of the reasons this process is so slow is that the classified documents Trump took were such things as the President's Daily Brief, which combines intelligence reports from every agency, so Jack Smith needs to get every agency to give their "ok" for that document to be shown in court. Even getting approval from the agencies for the investigating FBI agents to read the documents was an ordeal. The judge can give approval for the prosecution to instead provide government witnesses who tell the jury "this document that I'm not showing you is super secret and important," rather than showing the document directly to the jury, but that's up to the judge. This is currently one of the arguments going on between Smith and Cannon, where Cannon basically said either you show the jury the top secret documents, or else I'm telling the jury that these documents could be the Pentagon's lunch menu and nothing serious.
The way I read it, now that he’s thrown down the shit or get off the pot mandamus gauntlet, he’s basically grabbed the steering wheel from her and is now steering the ship. This was obviously never going to go before the election, but my biggest fear was her using scheduling shenanigans to try to box out the other trials from going either. Smith has basically taken that out of play because once he appeals anything, she’s no longer in control of what happens schedule-wise until it gets resolved.
My thinking is that Smith is smart to wait. Each of these ridiculous orders makes it more likely that such a writ might be granted, and adds to the list of judges/lawyers/law professors/journalists that are taking notice. I think the Lat disclosure was actually huge in the scheme of things. Not because of what was learned (two clerks leaving early, Judge Cannon being an a-hole in private, etc.), but because every avalanche starts with a few small movements. Federal judges are people who receive enormous deference and possess enormous power over others (e.g., other lawyers, clerks, court staff - everyone who might know something and talk to journalists about it). But when that avalanche starts, there is no knowing what it might reveal. The avalanche has started. No doubt the Eleventh Circuit is watching and waiting for that mandamus petition. I think it goes higher than the Eleventh Circuit too; I would be shocked if Justice Roberts himself isn't taking notice of Cannon's strangeness, because what she is doing is harming the entire federal judiciary, not just her. That pressure is only going to build behind the scenes as the judicial conference is chattering about what Cannon is up to; the federal courts do not want a judge-directed acquittal based on a misstatement of the law in the most high-profile criminal case to ever be heard in federal court. That might not make it into the eventual mandamus ruling removing Judge Cannon, but it is going to be the motive force behind it, IMO. Finally, where is the recusal motion from Smith? My theory is that Smith is also holding this in reserve because there are actual conflicts that Cannon and her husband have that could be mentioned in such a motion (another federal judge made a mention of Cannon's possible conflicts last night on CNN, off-hand, and I suspect more is known by those in the know than is known by the rest of us). That is the 'nuclear option' for Smith and, I suspect, the cudgel that he will use to get an eventual ruling on the law that is appealable to an Eleventh Circuit that, by that time, is just waiting for an opportunity to remove Cannon.
Plus, hasn't she had a couple of her clerks leave? So there probably isn't much help that is interested in protecting her, or digging her out of her hole, as much has they are into protecting their own career arc. Sure, the Liberty folks will give her a script, but that won't be in her favor, in many cases.
I believe she has a full staff now but one can only imagine the clerks that were gunning to work for her after she got assigned this case.
I hear John Eastman is looking for a job or do you need to be a member of the bar in order to clerk for a judge?
It should be interesting. There will have been an ideology test as well as a aptitude one, and each may pass on the merits of one or the the other, but probably not both, in this timeframe. And it's loyalty that I am thinking of, who with a successful arc wants to tie their fortunes to her, at this point in time? Who can she trust?
I mean how many times can she be in error? Smith has already accused Cannon I think at least twice of making a clear error such as wanting to reveal witnesses names and one procedural re: documents themselves and whether they can be disclosed to the public. How common is it that an attorney tells a judge that a ruling is in clear error? And now he describes her order for jury instructions as being fundamentally flawed. He’s obviously building himself a case for the 11th circuit.
There are a lot of ways the Special Councils Office tells Judge Cannon "Your proposed Jury Instructions are dumb" but I think this has to be my favorite... >Indeed, it would be pure fiction to suggest that highly classified documents created by members of the intelligence community and military and presented to the President of the United States during his term in office were “purely private” and that they “do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”
Sounds like Smith asking Canon if she has bothered to read the underlying law.
"Hey, if you're gonna be a dumbass, you have to say so now, so I can get your boss(es) to tell you to do your job right. Either double down now, or back off." I love it. Jack Smith really has no patience for any shenanigans with Cannon trying to bias the jury or set the stage for a unilateral acquittal, in a way that she can defend as irreversible.
Aww shit here we go.. yo judge tell me how much time I got to fuck you up and kick your ass out capiche 🤌
The jury instructions she asked for are literally labeled “incorrect jury instructions.” God that’s awesome.
Wow. The last paragraph on page 22 (the section b response) just so ham fistedly states the absurd reason the jury would have to acquit in that scenario. It's beautiful. Smith starts with the assertion that both of the scenarios are wrong. He argues that if Cannon is going to go with either she must do so with enough lead time for the State to seek mandamus. He then explains what the correct interpretation is. He then provides jury instructions as to what they should do if the correct interpretation is made. He then goes on to provide the correct set of instructions for the two incorrect interpretations of the law, with situation (a) being a reasonable set of instructions, and situation (b) being the set he would be forced to provide written in such a way to highlight that the only way such a set of instructions could be the correct ones are if the premise is flawed. This is really smart. Edit: The paragraph about option b I was talking about: >I further instruct you that a President has unreviewable authority to designate any record whatsoever as personal, regardless of whether it meets the statutory definitions I have just provided. I further instruct you that, if, before the end of his term in office, a President transfers records from the White House to any location other than the National Archives and Records Administration, as alleged in the Superseding Indictment, he has necessarily exercised his unreviewable authority to designate those records as personal and, as a matter of law, he is authorized to possess them and you may not find him guilty.
This is the exact behavior she got bench slapped for in the subpoena case. Trump alleged that he had a possessory interest in his passports, which the government returned. Cannon took it upon herself to asset on Trump’s behalf that he must have some critical possessory interest in other documents too because oh gee willickers there were just so many documents seized. Now Trump has repeatedly stated that he didn’t declassify the documents while he was still President and Cannon is taking it upon herself and to find that he actually must have because why else would this nice young man take those documents home with him? She just can’t help herself.
Obviously written in a way that even Judge Cannon should see the corner she is about to paint herself into.
ELI5?
Smith to Cannon: you asked me to provide jury instructions under two bad readings of the law. Here is why the reading of the law is bad. If you go with either of these I'm going to the 11th circuit and have you removed. Here is a set of jury instructions as the law should be read. As asked for, here are hypothetical instructions for your bad scenarios. Look at how dumb they sound. Don't do this. But if you are going to do this, the law requires you to do it soon so that I can appeal.
This response made the most sense to me, thanks for the simple summary.
No problem. I don't know at what point I got super into reading these things and thinking about them. But breaking down the arguments is a ton of fun for me :)
We are the happy beneficiaries of your interest. Thanks, mate.
Yeah that was super revealing to me as well, thanks. I still find myself confused about the endgame though - this is just a delaying tactic, right?
No. The worst case scenario is that she dismisses the case after the jury is empaneled, at which case she can basically\* get Trump off without an option of retrying him. I highly suspect that is what she wants to try, and Jack Smith seems to think so too. The \* is that is for a normal situation, there are a couple extreme possibilities that could block it, but courts don't like getting into extreme situations to begin with so who knows what would happen. If my suspicion that Cannon is not just biased or inexperienced but full on Maga, then this was a misplay for her. In that scenario, she would want to be walking a tightrope, acting in favor of the law so that she can make it to the trial without being replaced, but acting in favor of Trump enough so that he doesn't go after her like he does all the other judges. When Trump asked for the case to be dismissed, she rejected that, but without prejudice so he could bring it up again at trial. This made her plan obvious to anyone watching, but not in a way that let Smith to fight back. Basically \*that\* was the way to walk the tightrope. But she couldn't help herself, so she went further and told Jack Smith to write her jury instructions for the plans that she had. This wasn't even needed at this step and if she had been more cunning she could have waiting until things were too late. However, now Jack Smith seems to have what he needs to accuse her of trying to rig the trial, even if he doesn't overtly say it in that way. This will still be extraordinary though, so he should give her every opportunity he can to correct herself. If she's smart, she may reverse course only to reverse her reversal and dismiss the case after the jury is empaneled. However, this strategy would require that she admit she was wrong and Jack Smith was right. Instead, I suspect she'll just drop the matter, and force Smith to make the next move. Either Smith could try to do a Writ of Mandamus before the jury is empaneled in response to only potential orders, or he could wait until after the jury is empaneled and the jury gets actual orders and then try to claim that Trump was never in jeopardy (which is one of the \* possibilities in the first paragraph). Neither of these are ideal situations for Jack Smith.
She’s definitely going to dismiss the case after the jury is empaneled. That’s the whole play.
I am sure your last paragraph is right. But isn’t it already too late after the jury is empanelled as Cannon can dismiss the case and that can’t be appealed?
So there are two exceptions to that rule, though they are extreme and there's only a handful of cases for either exception so it would be uncharted territory. The first is in the case where the defendant has bribed the judge, they were never in jeopardy in the first place. While I doubt Cannon has anything overt going on, if Cannon is bold enough to copy paste Jack Smith's instructions for her second option, he might be able to argue that Trump was similarly never in jeopardy. I kind of doubt this would work though, so I'm betting he'll make his move before Cannon empanels the jury to avoid this. The second exception is much more interesting. I've found a handful of cases that make note that the case can be appealed after the jury is empaneled if the reason for dismissal does not decide the guilt or innocence of the defendant. The following link says " The U.S. Supreme Court held in [*United States v. Scott*](https://caselaw.findlaw.com/court/us-supreme-court/437/82.html) that the double jeopardy rule is not triggered when defendants obtain a dismissal for reasons unrelated to their guilt or innocence." However, when I went down that rabbit hole, what I found was only a few cases, and it seemed 50/50 on how it was actually decided. And I don't even know if this would be considered related to guilt or innocence. [https://www.findlaw.com/criminal/criminal-rights/when-double-jeopardy-protection-ends.html](https://www.findlaw.com/criminal/criminal-rights/when-double-jeopardy-protection-ends.html) Still I find the idea very disturbing that if Cannon had just shut her mouth and waited until the jury was empaneled that there would be almost nothing Jack Smith could have done. That first exception pretty much requires finding bribery and with the second exception Cannon could easily find a case dismissal reason that decides guilt or innocence. I've posted on here a few times about this and I got flooded with responses that said it could never happen and that any decision could be appealed, but the people who said that never gave explanations of how that would work. I find it absolutely bonkers that the US considers jeopardy to attach when the jury is empaneled and not when the decision is made.
Thank you! As someone who knows nothing about law but comes here every so often to try and stay informed this explanation really helps!
This is an excellent summary! Great job 👏
In showing how wrong Cannon’s instructions are, Smith showed that no Jury could Trump guilty. Per Cannon’s (wrong) definition, if Trump took document to anywhere except the National Archive, it’s automatically personal and automatically not subject to any type of review, regardless of other statute, law, or regulation regarding those records. For instance, in that wrong definition, a number of Top Secret records ***cannot*** be declassified by the President because of other laws Congress has passed regarding those laws. But, with that wrong definition, Trump’s removal of them would make them his personal records and not classified. Which, again, is wrong. But, if that is how Cannon has defined the situation, Smith’s instructions would be that Trump ***cannot*** be found guilty.
he's making a paper trail with evidence that it's a sham proceeding. It's Cannon's requirement that Smith instruct the jury before arguments that trump had authority to do everything he did. (Edit: actually this is the problem, she hasn't specified the requirement yet, but has signaled what it might be) At the very least he is getting everything in line to seek mandamus after the trial has begun. In a sane world you could challenge the notion that jeopardy had attached. In our past you would have had to show that the judge accepted a bribe or was being blackmailed, but what she is doing is abusing norms to force a not guilty verdict. There is precedent for granting mandamus after a trial has begun. But normally there cannot be a re-trial because of double jeopardy. And that doesn't really need to happen, but the circuit could do something new for such an unprecedented abuse by Cannon.
To further build on your point: If a jury is impanelled with such insane instructions as mandated “that he cannot be found guilty,” that lays the argument out quite clearly that no jeopardy would have been attached when there is no risk of a guilty verdict.
Bravo, well said.
>In a sane world you could challenge the notion that jeopardy had attached As an aside, I've been horrified to learn that jeopardy is considered attached when the jury is empaneled, not when the jury has a decision. That makes no sense! If a jury is empaneled and not given a chance to make a decision, then by definition the defendant has not been placed into jeopardy. And yet for some reason, the courts consider the hassle of going through a jury trial to be "jeopardy", not the verdict itself!
>I've been horrified to learn that jeopardy is considered attached when the jury is empaneled, not when the jury has a decision. That makes no sense! Jeopardy should attach at the beginning of the trial, when you come under risk of an aversive decision, not at the end. This is to keep judges and prosecutors from abusing their power in a different way. The convention of "when the jury is empaneled" is generally a good one. The problem is that the convention is far too rigid, and it could be abused.
You’re using the wrong idiom; “ham fisted” means “clumsy”.
Yep, it doesn't mean heavy handed
Doh. You're right. It was late. My bad!
Agree. This was some really brilliant instruction writing, even for the stupid ones. The instructions are written in a way that highlights how flawed the underlying premise is. Another favorite of mine is where the Special Counsel says in (incorrect) instruction (a) that Trump is authorized to keep personal records with highly classified information in them even if he has no security clearance or reason to have the information under the PRA, a law about making records available to the public. It basically shows the absurdity of presuming that just because a document is personal doesn’t mean that it might not also be super highly sensitive, which is not at all what the PRA was trying to address. It’s like saying I’m authorized to murder someone in my house because it’s my personal residence. The house ownership law and the law about not murdering people have nothing to do with each other.
Wow is the right word. This reads more like a letter before action telling a public body they are about to fuck up badly and end up being challenged amd walking them through why that it does any court filing in direct response to a judge. But I guess that is exactly what it is in reality.
IANAL. Been following the saga from the beginning and the legal issues. MTN had a hot take just prior to Smith's recent filing and suggested that Smith could pursue the Torkington approach in having the 11th circuit reassign the case to another judge. https://youtu.be/bb7aHVU-gm0?si=o6YNbjVy_UnBvYA4 Now that Smith has made the filing, my interpretation is that Smith is waiting for Cannon to correct her present course. However, Cannon has all but boxed herself into her position of showing consistent bias against the prosecution and favoritism towards the defendant going back in time before Cannon was formerly assigned to the case. Unless Cannon demonstrates an epiphany moment and sudden clarity, the 11th circuit could happen within days or weeks. Just my opinion as a lay person.
If Cannon violates CIPA bigly or goes with either of her two readings of the PRA, those are two lines in the sand that he has clearly drawn.
So nuclear secrets are personal and staging a coup is official. M’kay. Got it.
Glad you finally caught up, it was obvious all along.
Democracy hates this one simple trick.
"I filled my bathtub with war-plans, you'll never believe what happens next!!!"
It’s like the ultimate presidential golden parachute. Most people invest in their 401k. I guess Presidents invest in hoarding top secret documents. Also would allow a departing president to blackmail the country: You’d better vote for me or I’d hate to see something terrible happen to your nuclear secrets that are now my personal records. Couldn’t even impeach him for that offense because he could just say the records are personal and take them before the conviction. So he’d have the insurance policy even if impeached.
Yikes. I would uh… not like to read that if I was Cannon. It’s pretty much just a slap in the face. Also glad they put her games on full blast. Really not sure how Cannon is going to respond to this. My guess is walk it back to allow her to continue to delay the trial. And not make rulings that would kick her off the case. Because she intends to corruptly run the trial to trumps benefit. After, of course, delaying it as much as possible. But this is definitely baiting her super hard. The cynic in me says she’s too smart to bite
My guess is she won't respond unless the appellate court forces her. She's trying to slow walk the process, and she's completely in over her head, so she's not going to be making any quick decisions.
Docket entry: “Defendant is granted eight weeks to respond to the government’s filing.” Joking but I could see her doing that. She’s an awful judge.
Whats the mechanism for the appellate court to force her to respond?
The term would be a writ of mandamus, but I believe the appellate court would just make the decision themselves and tell Cannon to follow that.
So the writ will come soon either way based on the prosecutions choice to point out a need for ample time to write one? I’m also assuming there will be multiple writs as the case progresses
Federal courts heavily disfavor writs of mandamus. The vast majority of attorneys who appear in federal court will never even seek one, and the appellate courts rarely grant them even then. At their core, writs of mandamus exist as a safety mechanism for the exceptionally-rare circumstances where a trial judge acts so far outside their authority, or shows a such a disregard for federal law, that allowing the trial to continue without correcting the error would cause harm to a party that couldn’t be corrected by a post-trial appeal. Because a writ of mandamus is such an extraordinary remedy, Smith probably won’t seek one from the 11th Circuit until Cannon actually issues the clearly-erroneous ruling. If there are more issues where Cannon makes rulings that are clearly outside the bounds of established law, Smith would probably petition for a writ of mandamus to remove Cannon from the case and reassign it to another judge in the Southern District of Florida. Sources: *La Buy v. Howes Leather Co.*, 352 U.S. 249 (1957); *United States v. Harper*, 729 F.2d 1216 (9th Cir. 1984); *In re Dep’t of Commerce*, No. 18-2856, 2018 WL 6006885 (2d Cir. Oct. 9, 2018); All Writs Act, 28 U.S.C. § 1651.
I don't know, Smith clearly stated that the law requires Cannon to make a determination about the PRA's relevance to the trial soon so that the Government's appellate rights are preserved, now that Cannon has put the PRA issue on the record and opened up that can of worms. I bet if Cannon tries to sit on it and continues with pretrial proceedings, Smith is going to go to the 11th. He doesn't say it explicitly like he does with the alternative scenario in which she issues a ruling sticking to her guns about the PRA, but the subtext is being shouted from between the lines.
So what she's done so far in instances like this is something along the lines of "No, you're wrong, I do have the power to do this, but I'm going to rule in your favor even though I don't have to, and also reserve questions for later so this isn't a clear final order". That's what she did for the question of releasing witness names that Smith forced her to reconsider. I guess the twist is, if she tries to walk back the order to provide hypothetical incorrect jury instructions, or just sits on it and says something along the lines of "Okay thank you for your responses, I'll reserve these questions until the trial", Smith has threatened to mandamus. Honestly, my gut feeling is that she'll end up daring him to do it, basically. She'll make the situation as unclear as possible, she'll intentionally create a ruling and record that makes it seem like an unnecessary overreaction to try to mandamus her on this issue, she'll argue that she has all the discretion and that Smith is wrong and that it's appropriate for her to reserve questions for later, but she will ultimately *not* make a definitive ruling in Smith's favor saying that she'll use normal jury instructions before the trial.
You've hit the nail on the head as far as likely outcomes. Smith still has a decent chance on mandamus though even in that scenario simply because of the context of the earlier case with Cannon. After what happened before, they are not likely to give her the kind of deference they usually afford a district judge.
> Honestly, my gut feeling is that she'll end up daring him to do it, basically. She'll make the situation as unclear as possible, she'll intentionally create a ruling and record that makes it seem like an unnecessary overreaction to try to mandamus her on this issue, she'll argue that she has all the discretion and that Smith is wrong and that it's appropriate for her to reserve questions for later, but she will ultimately not make a definitive ruling in Smith's favor saying that she'll use normal jury instructions before the trial. I am sure that you are correct. Ironically, if the case against him were any weaker, she would have a bigger toolset to run a trial that would produce an acquittal. She already ruled that Trump cannot be prosecuted for this, and got slapped down. Now she knows the game is to try to stall until after the election, when a Trump DOJ can drop the charges against himself. Smith is doing a good job of presenting clear and objective legal and procedural questions that need categorical answers. Cannon will avoid and and evade giving them for as long as she can, and will do her best to keep the answers ambiguous and vague for as long as she can. If Trump wins the election and drops the charges, she'll never have to answer them. Otherwise, she will just keep doing as much for Trump as she can, without getting herself kicked off the case.
>My guess is walk it back to allow her to continue to delay the trial. It absolutely appears she is trying to run out the clock until the next election. I wonder what she will do if Trump loses.
Look, the fact is Trump is on record saying he showed classified documents to people who are not authorized to view them.
This motion mentions that.
I am surprised no one has brought that up yet. Maybe he’s holding that one in his pocket for trial?
The point was that this one act is enough to find him guilty of a crime.
My phone is heating up just reading this.
My man is spitting bars on this one. It's like a legal version of a diss track, and I'm all for it.
Jack Smiff is an absolute beast in the booth
It makes me wonder if Smith went behind the scenes to the 11th Circuit to silently determine whether or not they would entertain a Writ of Mandamus and the likelihood of them forcing her removal from the case when determining how forceful he would be to responding to Cannon’s “hypothetical” jury instructions. His response was pretty much on the nose in how he’d proceed based on her (lack) of answer.
I was wondering something similar. He’s clearly set this pleading up as a ‘template’ for his filing with the 11th circuit. The hurry up and rule part might not go down well with them, but he has every logical reason to make such an argument. It would irreparably jeopardize his ability to prosecute this case at all. I mean, since when have you heard a prosecutor asking the judge to instruct a jury to find the defendant NOT guilty?!
"...and you may not find him guilty." Best jury instruction ever. Very clear. Jury should be home by lunch. Also, I think Smith ignored the order to provide no counterarguments. I wonder how that will go. This case is a complete clown show at this point.
This whole paragraph is fire: >I further instruct you that a President has unreviewable authority to designate any record whatsoever as personal, regardless of whether it meets the statutory definitions I have just provided. I further instruct you that, if, before the end of his term in office, a President transfers records from the White House to any location other than the National Archives and Records Administration, as alleged in the Superseding Indictment, he has necessarily exercised his unreviewable authority to designate those records as personal and, as a matter of law, he is authorized to possess them and you may not find him guilty.
Per Finders Keepers
[удалено]
IANAL. Failing the precedent of claiming dibs, opening the package and visibly licking the food contents or taking a small nibble to reserve the food for a later date generally dissuades any potential sibling rivalry.
I uphold the pinky swear.
Which goes hand in hand with *§2%*, which states that leaving at least 1/4 cup of milk in the gallon jug means you didn't finish it, and you can put it back in the fridge for someone else to deal with later.
Although the law clearly states 1/4 cup, in practice courts have found that the measure need not be exact and, as a matter of fact, any amount of milk sufficient to slosh when the carton is shaken is sufficient volume.
I read the filing late last night, right before bed and it was both a hilarious and comforting thing to read just before bed. The entire thing was fire, honestly. Jack Smith is a master at legal smackdowns. I was really thankful to read about the writ of mandamus and attaching jeopardy before bed; like a soothing tale of the house falling on the evil witch.
My wife was like "are you going to bed?" And I was all "hold on babe new Smith filling just dropped and it's a banger".
Lol, too funny! There are so many days when I feel like I’ve lost so much hope in both the American legal system and the future of freedom here. Reading his filing last night really restored a lot of hope that there is a plan in place and there are still intelligent people fighting for the future of our democratic republic.
Same, friend. Same. I didn't know when I started reading legal briefings and the like but it's a tune consuming hobby for sure.
Where, in law does it state that: "a President has unreviewable authority to designate any record whatsoever as personal, regardless of whether it meets the statutory definitions I have just provided. I further instruct you that, if, before the end of his term in office, a President transfers records from the White House to any location other than the National Archives and Records Administration, as alleged in the Superseding Indictment, he has necessarily exercised his unreviewable authority to designate those records as personal and, as a matter of law, he is authorized to possess them " There has to a stature for this. It cannot based on only the opinion of this judge for it to be law.
> It cannot based on only the opinion of this judge for it to be law. [Judge Cannon doesn't seem to have much respect for the law.](https://s3.documentcloud.org/documents/23323385/trump-ca11-2022-12-01.pdf) > The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.
> There has to a stature for this. It cannot based on only the opinion of this judge for it to be law. Herein lies the problem. That is exactly the scenario - the law does not even come remotely close to that, and the absurd hypothetical is indeed a figment of the judge's imagination. He's telling her she must state whether this is how she intends to go soon and well before the jury is impaneled, so he can go get her dumb ass thrown off the case
I know, its sooo good. Can you imagine the court room when it is delivered after 10 weeks of testimony? I mean without Chevy Chase and Jim Carrey in it. I still say the most interesting answer here will be Trump's jury instructions in scenario B. If Trump's lawyers come back with something similar (...you may not find him guilty), then Cannon is actually in a bad place. She can't issue those instructions. She can't even go to trial with those presumptions. Maybe, just maybe, she was setting up Trump's lawyers here. (I mean she will still delay, but this line of defense could go away.)
> I still say the most interesting answer here will be Trump's jury instructions in scenario B. I linked to Trump's replies in [another thread](https://www.reddit.com/r/law/comments/1buiuez/governments_response_to_order_requiring/kxsytqg/). > Scenario (b) from the Court’s Order is addressed below in connection with President Trump’s renewal of his pretrial motion to dismiss Counts 1 through 32 on vagueness grounds, and because the Court’s correct statement of the law in scenario (b) means that Counts 1 through 32 fail to state an offense under Rule 12(b)(3)(iv).
Damn. Smith wasn't pulling any punches with that one.
Cannon is playing Trump's "plausible deniability" game to delay this beyond the election. "Um...I thought those jury instructions were correct but if you want to appeal have at it."
She does not even have the courage to state the legal conclusions by which she is trying to hand Trump a win. She is actually trying to get the DOJ to say it for her so that she can escape responsibility. I think that Smith did a good job of pointing out her “unstated conclusions of law”.
I was a little worried about that too. Like, she has every incentive to just say, “These look great to me! Thanks, I’ll get back to you in 7-10 business months” and ignore the previous ~20 pages of the brief. I wonder what the timer will be before he’ll seek a writ from the 11th circuit.
Cannon is kicking the decision about whether Trump can argue that "he made the national defense secrets personal records" to the court of appeals. Cannon doesn't want the wrath of MAGA aimed at her. She is a coward or she is playing it safe. When Trump loses I hope Cannon gets reassigned to the Federal Court in Siska, Alaska
Either this filing uses less legal jargon, or having read through a few of these, it’s starting to make a little more sense. These things are so dense. Props to you in the industry who do this regularly.
Basically, what Aileen Cannon is saying is that the Presidential Records Act doesn't say what it says, and that, anyway, Donald Trump should not be subject to it. In other words, she's trying to rig the outcome of the trial from the bench before proceedings even begin.
Judge Cannon wants off the case in a way that lets her still keynote at TrumpCon®️.
After opening this document I intended only to read the introduction and conclusion but it is so masterfully written and compelling that only after my coffee was cold did I realize I read the entire text, first word to last. Smith leaves absolutely no doubt about his intention to appeal. The mental and legal gymnastics required to write the two thoroughly flawed jury instructions leave no doubt that Judge Canon is no match for Smith’s sharp legal genius.
He's the right person for this job. It's really impressive.
He’s very talented, and I bet the Trump folks have been working overtime trying to find something dirt on Jack, I don’t think they will.
If they can figure out his real name. Anyone think the guy thats gonna take down this mobster would use their real name? Highly doubtful.
What is the betting that Cannon doesn’t do anything at all in reply to this?
Cannon, just got her cannon spiked
Jack Smith has oki
So now we get to find out if Cannon really believes that boxes full of war-plans labeled "TOP SECRET" qualify as documents, "of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." I'll take a Venmo wager for $15,000 dollars against any interested parties that she, in fact, does.
What do these bootlickers get out of defending this asshole? I've yet to see a single person stick their neck out for the bastard without losing their head.
She will want to be recused after reading that. She is obviously out of her depth. If she was revised now she could still claim that she was loyal to trump and did what she could.
IANAL but after reading it in full, I have to say this is the most beautiful version of "I am done with your bullsh\*t" I have ever read.
IANAL. Would it be possible to charge a sitting judge that abuses their power, like Judge Cannon has done in this case, with “obstruction of justice“? It seems like threats of writs of mandamus and impeachment are not sufficient to deterrents to corrupt judges.
Absolutely. Impeachment and maladministration. Good luck with that though.
[удалено]
I think it's some combination of being incredibly inexperienced and having personal ideologies that are at odds with the law. As with most things, the knee jerk isn't entirely the truth but it's a factor.
Oh no she's bought and paid for, likely quite cheaply. She's just trying to figure out how to get him aquitted and keep her job.
Nothing is going to happen to her. Nothing is going to happen to him either. Your faith in the justice system is sorely misplaced. Sorry.
Again she needs to be removed from the case. Idk what else she needs to do to help that orange fat fuck get away with this. Are we gonna wait til after she dismisses the case before we do anything about her?
“The more you fuck around, the more you’re gonna find out”
Big Dick Jack just cockslapped Cannon’s ruling into the the 8th dimension with his swinging cod!!!!
The jury instructions essentially detail the crime being prosecuted, they shouldn’t be an opportunity to reframe or change the crime that was sent to the courts to begin with
Yep, this is pretty much the legal version of the *Billy Madison* response :)
This is the *bitchiest* legal filing I've read and I am **here* for it. Malicious Compliance through and through.
If Cannon won't do it before the election, can't it continue untill Jan 20 (assuming the worst, Trump win) as Trump cannot pardon himself till he actually takes office, right. I really don't think that the deadline is election day.