As far as I can tell from listening to attorneys and former prosecutors, there is no consensus on how to proceed in dealing with the potential land mine that is the assignment of Aileen Cannon to the documents case against Donald Trump.
I am confident that Jack Smith knew there was a decent chance that this case would be assigned to Cannon, so I’m sure he has it all gamed out.
My guess is that Jack Smith is serious about a speedy trial and he figured we could either slowly get to the fight over venue and burn time (that we don’t have) doing it, and still likely end up in FL – or he could just file in FL and have that fight right out of the gate. (Jack Smith has some serious balls, of that I am certain.)
Anyway, I have listened to multiple sets of people discuss the road ahead, and while there doesn’t seem to be a clear agreement on how to move forward, there does seem to be agreement on what the options are for going forward.
I will lay out my current understanding, and then I can refine this list based on feedback in the comments, especially from our Balloon Juice attorneys!
- Cannon could recuse herself right out of the gate. (Unlikely, as far as I can glean.)
- Cannon proceeds as the judge in this case, and Jack Smith does nothing to question Aileen Cannon. (Not just yet, anyway.)
- DECISION POINT
- Jack Smith could ask Cannon to recuse herself.
- Cannon could agree to recuse. (Unlikely?)
- Cannon could decline to recuse herself.
- Jack Smith could file to have Cannon replaced.
- Cannon could rule against that.
- Jack Smith could then appeal her decision not to recuse herself. (That would go to the 11th Circuit.)
- The 11th Circuit would would rule one way or another, and I believe that whatever they decided is how the trial would proceed.
- OR
- Or instead of doing #4 right out of the gate, Jack Smith could proceed with the trial and then wait until Cannon does something that is truly out of line, and then I think he could begin with step #4 and then #4 – $10 would play out at that time.
SOURCES
Podcast with Andrew Weissman and Mary McCable: Prosecuting Donald Trump, episode: 37 Felony Counts.
This interview exchange with Brian Tyler Cohen interviewing Glenn Kirschner.
If the experts don’t agree on how Cannon should be handled, my opinion surely isn’t worth anything. But I’ll share it anyway! My best guess is that Jack Smith would give Cannon a chance to do the right thing, let Cannon hang herself with her own actions if that’s the road she takes, and then crush her.
I’m sure we’ll know more on Tuesday, but in the meantime I thought it might help for us all to know what the potential steps are.
Open thread.
We Can Only Hope
eclare
I guess the big thing now is the timing. Will that be set on Tuesday?
Wapiti
?) Jack Smith drops another stack of charges for crimes within D.C. courts purview, to demonstrate to Trump he should plead guilty, soonest, and to put a spotlight on any bias Cannon decides to display.
JPL
@Wapiti: That’s what I think because the DC grand jury did meet.
I think he goes after Walt Nauta who will soon discover that trump is not a friend.
WaterGirl
@Wapiti: I totally agree that Jack Smith has not put all his eggs in one basket.
I do think that Jan 6 will go to the DC courts.
And I think it’s possible that Smith has held back some document-related stuff that could go to DC since Cannon was a distinct possibility for judge in FL.
I can also imagine that Smith MIGHT be aware that even though he has laid out an airtight case – so airtight that the defendant’s mother would have to vote to convict – in FL there might not be a conviction and Smith will let the stinking carcass of the FL case sit on display for everyone to see until even the MAGA people will have to see that Trump is guilt.
DFH
I like the crushing her part.
waspuppet
The only thing I think we can safely rule out is Cannon doing the right thing at any point. This is literally why she was put in her job. In fact I’m reasonably confident that they explicitly told her that and she explicitly agreed to it.
SiubhanDuinne
Any idea about timing of the D.C. indictment(s)?
Edmund dantes
I think he waits on her to make something that is definitely way over the line before he moves to asking her to recuse herself.
WaterGirl
@SiubhanDuinne: I’m sure we won’t know anything until 3 days before at the earliest – when the experienced former prosecutors smell something in the air that the rest of us don’t – and they tell us that, just like they did this time.
oatler
I like this Smith. He has the glowering look of Paul Krugman.
FastEdD
All that time wasted gathering all that evidence that Loose Cannon will just throw out anyway. We have a situation where MAGATs are furious and the rest of us who just want the law to be enforced are disgusted at the judge who was picked to slow everything down and toss it all out.
WaterGirl
@SiubhanDuinne: I also think Jack Smith wants to see how FL plays out – this proceeding on Tuesday should tell us whether a speedy trial is in the works or if she is going to be all about delay delay delay.
My faith in Jack Smith is what allows me to stay calm in all of this. The man knows what he is doing.
Dorothy A. Winsor
@oatler: Mr DAW says he looks like a hitman
Spirula
I think your last timeline is the most likely. He seems to possess enough grit and savvy to let her shoot herself in the foot (if she is dumb enough to do, and she has the potential), and then legally cut her out of the equation.
mvr
I go with respectfully request recusal based on the court of appeals decision making it hard for the public to have confidence in her not being biased. The harder question is what they do if she just politely doesn’t do it.
eclare
@Dorothy A. Winsor:
Resting indictment face
Lapassionara
I have been an attorney in a case involving a motion to recuse the judge. Unless the standards have changed, it is very difficult to recuse a judge, almost impossible.
So I don’t think going for recusal early on would work. I think Jack Smith will proceed to litigate the case in Cannon’s courtroom and see what kind of rulings she makes.
I can imagine Trump demanding that his criminal defense attorney file all sorts of motions (as he did in the earlier proceeding), and perhaps one of these will give Jack Smith an opening to approach the 11th Circuit.
bbleh
The only serious question *I* have is, assuming she doesn’t recuse herself (which I think is reasonably safe to assume), AND assuming she doesn’t do anything REALLY egregious up to or during the actual trial, does he nevertheless move to have her replaced (on whatever grounds, Trump appointment, the Special Master issue) BEFORE she’s in a position where can order an acquittal that can’t be appealed because of double jeopardy? That is, does he guard against the worst case, which is that she’s secretly scheming to acquit Trump and will play it straight right up until she pulls the trigger?
I’m willing to bet that he’s come up against some people much more capable than she who were acting in bad faith, so as you say, I would assume he’s got at least a rough game-plan.
Another Scott
Made me look. FLSD.uscourts.gov lists the district judges:
By order of seniority (omitting the Senior (mostly retired) judges):
She’s the least senior. This is a pretty big case to drop in her lap…
I don’t know if the rest of them are as insane and partisan as she is. :-/
I think Smith is right to file there and head off any venue questions. Let things go ahead. FTFNYT says that over 300 classified documents were found at MaL. Presumably Smith can (re)file with a different grand jury indictment, for different documents or different charges, if necessary. Like others, I assume that he’s gamed this out all kinds of ways and knows about options.
She knows she’s being watched by the whole world.
Here’s a story about an “exceedingly rare” Rule 29 acquittal:
DuaneMorris.com:
(Emphasis added.)
I don’t think Smith has to worry about that.
But time will tell.
Eyes on the prizes. Don’t get too distracted by stuff we cannot control – we’ve got elections to win!!
Cheers,
Scott.
PsiFighter37
@bbleh: Can judges order jurors to acquit in a trial? IANAL but haven’t heard that before. They can certainly instruct on what they are supposed to consider.
That said, the content is so slam-dunk that maybe even a shit-for-brains judge like her will know that whatever remaining shred of credibility she will hinge on not sticking her neck out for a dude who is going to spend the rest of his life in federal pound-me-in-the-ass prison, as ‘Office Space’ puts it.
PF37 +3
Scout211
@Lapassionara: Thanks for you experienced input. IANAL but you make logical sense to this not-lawyer
Since those of us who are not-lawyers are just spitballing here, I will go on record to predict that Trump’s new, newer, newest lawyer will ask for a special master to catalogue all the
papers with wordssecret and top secret documents to make sure they weren’t planted by the deep state to personally smear Trump’sdecorating taste in bathroomsability to own secret documents that are his because he said so.You’re welcome. Now what do I win?
Jackie
We’ll learn Cannon’s game plan right at the getgo:
“Indicted former President Donald Trump’s legal team is planning to ask District Judge Aileen Cannon to dismiss key evidence that ties him to obstruction of the FBI’s investigation into classified documents stored at Mar-a-Lago, a report said Sunday.”
“The basis of the dismissal, his lawyers say, is that notes kept by Trump’s attorney Evan Corcoran – bombshell evidence in which Trump discusses lying to investigators about the document’s existence and even suggests destroying them – are covered by attorney-client privilege and should not have been turned over.”
“Without those notes, it would be much harder for prosecutors to prove he interfered with the probe, the Daily Beast reported.”
“The notes are already in the possession of Special Counsel Jack Smith and featured prominently in the 37-count indictment that was unsealed Friday. But Cannon, who was appointed by Trump and apparently selected randomly to oversee at least the beginning of his case, could rule them unusable, the Beast said.”
“They form the backbone of the conspiracy to obstruct justice charge, which carries a maximum of 20 years in prison.”
“If it works, one source told The Daily Beast, Corcoran could be “totally in the clear,” providing a narrow boost for Trump in court—but nowhere near saving the former president entirely,” the report said.”
https://www.rawstory.com/aileen-cannon-2661189723/
For whatever reason, a link to the Daily Beast article wasn’t provided.
WaterGirl
@Another Scott: On the podcast I linked above, they do into a lot of detail about how Cannon ended up on the short list of 1.
Apparently you have to say where the crimes took place (so that landed things in the group that would include her).
Then you have to say how long you think the trial will take (Jack Smith said 21 days).
Apparently the senior judges can set parameters for what kinds of trials they want assigned to them. Only criminal, only civil, etc. They can say “I don’t want trials that are expected to last more than this # of days” – so that may have removed some more.
Etc. Weissman and McCord didn’t seem to think it’s as fishy as it looks.
Surely Jack Smith would know how all that stuff works re: assigning a judge.
I thought Cannon was a worst case scenario, but more of an outside chance than a high likelihood. My guess is that he wasn’t taken by surprise as I was.
Another Scott
@WaterGirl: Thanks.
Cheers,
Scott.
WaterGirl
@Jackie: For what it’s worth, the possibility of them actually being successful in overturning the piercing of attorney-client privilege was dismissed as having the tiniest chance of being successful. I think that was discussed in the podcast I linked.
Scout211
@Jackie: I think this is the original article but it’s behind a subscription wall.
The Ploy to Stop Feds From Using Trump’s Lawyer Against Him
oldgold
I would not be surprised if their is not an additional filing in the documents case.
My guess is that filing would have to do with what happened to the documents taken to New Jersey. Apparently some of these documents, such as the war plan document Trump was taped discussing, are missing.
The whole New Jersey aspect of this stinks. In my opinion, there is much more to this part of the story.
Scout211
@WaterGirl: Wasn’t the attorney-client privilege already ruled on due to the crime-fraud exception? Or is this a separate issue?
smith
I realize that Cannon is a MAGAt, and thus not necessarily prone to recognizable normal human reactions, but I would think that the combination of her least-senior rank and the severe pasting she got from her colleagues the last time she acted out in favor of TFG might make her hesitate to do that again. After all, she’s got to continue working with them for the foreseeable future, and most people do care about what their more senior colleagues think of them. At the least, if she does trying dropping in some monkey wrenches, they will be much more subtle than the bombs she threw last time. Certainly not an abrupt directed verdict.
Chief Oshkosh
I don’t see the point of waiting for her to step over a line and then going after her. If she doesn’t recuse herself, without being asked, then we know that she’s going to put her finger on the scale – probably the rest her hand and a substantial portion of her arm. If Smith then doesn’t immediately ask her to recuse herself and instead waits for her to cross some line, it will take a lot of time to attempt to force her off once she crosses that line AND it will take some more time, and allow for even more mayhem, to seat a new judge and get her up to speed.
2liberal
who are federal judges?
Jackie
@smith: I just realized something: Ailene Cannon is the only judge assigned to a Trump hearing that he hasn’t insulted in ANY way.
I wonder why?🤔
coin operated
Something Peter Strzok pointed out on the bird machine…they are only charging a fraction of the documents recovered at Mar-a-Lardo. I have no doubt that some of those are so sensitive that exposing them to the court would cause more damage, but I get the feeling that Jack has something up his sleeve if Little Miss Trumpette starts playing games on the bench.
I’m spitballing here…but he’s run a masterful investigation thus far and I’m inclined to believe he’s gamed this out.
oldgold
@Scout211: It was ruled on, but in DC. It is
probablecertain Trump’s attorneys will want that ruling revisited in Florida.In my opinion the DC ruling is sound, but in the hands of Judge Cannon, who knows.
Matt McIrvin
@Edmund dantes: If she’s the judge presiding over the trial, the first outrageous thing she does could be a Judgment of Acquittal, which by my understanding would immediately acquit Trump (no jury verdict required) and would be unappealable. So that would be too late.
West of the Rockies
I think a 1/6 indictment is a bit away still. Didn’t Bannon just get a supoena last week?
Ruckus
@waspuppet:
Step one. SFB is evil. And stupid.
Step two. I agree that she may have agreed with your direction.
Step three. I sort of doubt that SFB can think that far ahead – IOW more than 2 minutes total in any 24 hr period.
Step four. SFB has zero logical sense, so the contemplation of any involved setup is far beyond him.
Step five. The discussion here about why he took and kept the paper he did has shown that really there was likely no actual forethought about what he was doing, it is all just the possessiveness of this 4 yr old in a man’s body, – “It’s mine, I want it, you can’t have it!”
Sister Golden Bear
Given how much evidence is required to meet the extremely high bar of piercing attorney-client privilege, I doubt Judge Loose Cannon has much wiggle to try to throw out evidence based on that. And she tries, I’m sure it’ll be instantly appealed, and I assume the Appeals Court will be very unamused.
I’m more worried about about a last-minute ruling that the prosecution failed to make its case. I’ll leave it the attorneys as to whether there’s any potential appeal in that event. Normally applies court only rule on issues of law, and defer to trial judges regarding facts of the case but I can’t see them letting such a blatant act of bias stand, especially after the last go-round.
bbleh
@Another Scott: @WaterGirl: I also read someplace that there is a caseload “limit” beyond which judges are less likely to get cases (or don’t get them at all), and that many of the judges in the District were at or near their limits.
And yes Rule 29 requires the most generous reading of the prosecution’s evidence, and the assumption of a “reasonable jury” and and and … but in the end, it’s up to the judge. Unless a jury has already returned a guilty verdict, it’s unappealable.
@PsiFighter37: IANAL, but from what I’ve read, the term “directed verdict” is no longer used; instead, the defense moves to acquit (which is routine and pro-forma and almost always denied) and the judge grants the motion, end of story
Hyperventilation may resume now.
Matt McIrvin
@PsiFighter37:
There’s a thing called a Judgment of Acquittal, which is normally used in cases where the evidence for the prosecution is egregiously poor. The defense can call for one, arguing that the evidence is so bad that no reasonable jury could possibly convict on the basis of it, and if the judge agrees, that’s that–the defendant is acquitted and we stop wasting the jurors’ time and harassing the defendant. But if the judge were completely corrupt, this could be a way to shitcan cases unilaterally.
But this doesn’t happen at an arraignment; I think there actually has to be a jury impanelled.
There might be some complication as to when they can do it so as to make appeal impossible under the guarantee against double jeopardy.
WaterGirl
@Scout211: yes, it was already ruled on. multiple times. but that is at the heart of what they want to do with corcoran’s info that was so damaging to trump. They want a ruling that says that can’t be used as evidence in the trial.
WaterGirl
@Jackie: Astute noticing!
bbleh
@Matt McIrvin: But this doesn’t happen at an arraignment; I think there actually has to be a jury impanelled.
I believe that’s right, because jeopardy does not attach until a jury is seated. I have no idea whether there are grounds for acquittal before all evidence is presented (which is required under Rule 29).
MomSense
My day turned so weird. I don’t even know how to describe it. Music Festival was a blast but hot.
Fuck Trump. I think there are more federal indictments to come. Then we have the Georgia indictments to look forward to and they are going to be lit!🔥🔥🔥🔥
Matt McIrvin
@Another Scott: But all those musts and shoulds are just on the judge’s say-so, right? From Aileen Cannon’s perspective, it could be that no evidence the government could present could possibly pass the threshold of sufficient evidence, and no jury that would convict him could be reasonable.
Dangerman
I’d bet on her recusing on her own. Option 5. She already stepped on one landmine; why step on another one?
The Dick, I mean, The Donald has already shown a willingness to share State Secrets even though he knows he should’t. Whether being just a simple prick or he gets a tingle in his tiny, um, accessory from showing off those Secrets, I wonder if getting remanded is a possibility. He still has boxes someplace apparently. Probably buried with the first wife.
The Kropenhagen Interpretation
Which effectively makes the law itself null and void.
Shalimar
@WaterGirl: The slim to none possibility of a normal judge throwing out Corcoran’s notes could be grounds for seeking Cannon’s recusal when she throws them out and the 11th Circuit overturns her ruling. Because you know she is going to throw out the notes. It’s still a strong case without them, and the notes themselves are proof that the decision to pierce attorney-client privilege was the correct one even without the evidence presented in D.C., but she’s going to come up with some insane justification for throwing them out anyway.
p.a.
https://youtu.be/c-wT7sijLIs
Rand Careaga
Ah, but they’d no longer be “senior” once Trump, rightfully enthroned nineteen months from now following his triumphant vindication in Cannon’s courtroom, elevates her to the next 11th Circuit vacancy or even to SCOTUS. Could that possibility figure into her calculus? It would be irresponsible not to speculate, as Peggy Noonan would never say in this connection.
Another Scott
@bbleh: @Matt McIrvin:
In my mind, I keep coming back to the fact that these acquittals are “exceedingly rare”. We’ve had hyperpartisan federal judges as long as we’ve been a republic. Courts are human institutions, and sometimes bad actors do bad things. There’s no way to exclude that possibility.
But it’s “exceedingly rare”.
I assume that she will be gun-shy in going way, way, way out there to help him. But I would have thought that in the previous instance with the search, etc., until she started playing TIFG’s lawyer… She’s fairly young, maybe she’s learned from the experience of being slapped down so hard.
Grr…,
Scott.
Ruckus
@Chief Oshkosh:
I’ll ask this. Has she done anything obviously illegal up to this point? Of course we don’t know the entire history but there is a point at which she has to ask herself, what if I do screw this up, what happens to me. She may not ask that, she may be so sure she can do whatever she damn well pleases. But I’m not sure that is a clear a path as some are saying. She is relatively just starting out, if she doesn’t do her actual job, how good do her long term prospects look? Sure she may be the far right loon she seems, but what if there is a bit, a touch, a fraction of actual thought in her noggin? There is a tremendous spotlight on her, does she have the desire to risk her entire career? I have no idea, just asking the question. Does she have the stones to not actually do her job? And of course this is not the last stop for SFB, he’s stepped in the shit with both feet all the way up to his neck.
The Kropenhagen Interpretation
Flagrant disqualification for a Supreme Court nomination, should that be an ambition of hers.
Shalimar
@Dangerman: I still think Smith has a plan for going after the documents he knows Trump still has. My favorite guess would be a simultaneous FBI search of all Trump properties during the arraignment hearing, but it could be anytime.
Matt McIrvin
@Another Scott: We’re in an exceedingly rare situation, by historical standards, and the US right has shown a willingness to play “card says Moops” hardball that is matched only by, say, the attitude of the Jim Crow state regimes toward the Reconstruction amendments.
Baud
Maybe Trump will waive his right to a jury trial and let Cannon decide guilt or innocence.
Shalimar
@Another Scott: I can’t recall any examples of bias in law school that were as egregious as Cannon’s rulings in the December lawsuit. If she pulls that again, we’re in the realm of “almost never happens”.
Matt McIrvin
@Dangerman:
The chance that Donald Trump will become President again and put her on the Supreme Court.
SpaceUnit
None of this is gonna matter. The sleuths at Fox News have uncovered the double top secret Trump Amendment to the US constitution. Okay, apparently it was written on the back of the document where nobody had bothered to look:
Congress shall enact no law restricting the right of a disgruntled one-term president to purloin sensitive government property for personal use including, but not limited to, sale, extortion, or barnyard merriment. Furthermore such a person shall remain free until the completion of his days to roam the land committing such crimes and sundry offenses as his conscience will allow without fear of reproach or legal persecution.
If only Jimmy Carter had known.
mvr
Judgements of acquittal happen after all the prosecution’s evidence is presented (since they are about that evidence) and so they must already be trying the case. Generally that will involve a jury. (FWIW, I know more about state courts than federal courts and state laws are local, but there tend to be similarities.)
JoyceH
@coin operated:
I think you’re right. Look, does anyone really believe that Trump showed classified information to uncleared individuals a grand total of twice? You KNOW there are more instances of that. And of course, we know there were a lot of classified documents that weren’t charged. So yeah, if this case gets tossed, we’ve got more.
smith
I thought Jimmy Carter was the one taking out Pat Robertson, James Watt, et al. Bet he also strong-armed the Supreme “Court” into that voting rights decision.
Ruckus
@The Kropenhagen Interpretation:
Flagrant disqualification – far right loon or fraction of actual thought?
PAM Dirac
Cannon has already been put on a political case after the drumpf mess. A R ex-rep was handed a 465K FEC fine. The presiding judge died of cancer and Cannon was assigned the case and had to rule on the appeal. Seemed like a pretty weak appeal as the fine was in the middle of the statutory limits, but people were wondering if she would do a R a solid. She ruled against him. Proves that she is capable of following the law in a political case, but obviously a case involving drumpf is different. Of course she already knows that the 11th Circuit doesn’t have her back on giving drumpf special favors, so I would be a bit surprised if she invents privileges to throw out evidence. If she waits for the prosecution to present its case and says insufficient evidence, first, the evidence is would now be completely public and I doubt whether she would come off looking unbiased. I suspect it would be 10X more outrage than the rulings she made last fall. And for what? As people have noted there are many more documents that aren’t included in this indictment. She has to see that she would be sacrificing herself to get rid of maybe 10-20% of drumpf’s legal problems. And what if Smith has evidence that some of those documents were sold? Not only could he bring new indictments, if she gets anywhere near the new case he could point to that ruling to say she doesn’t follow the law and get her bounced.
The Kropenhagen Interpretation
Depends which party has the Presidency. But both, absolutely, yes.
My original intent was the “fraction of a thought” bit, though.
different-church-lady
In the meantime Trump will be indicted in Georgia.
Another Scott
Teri Kanefield is busy and Part II isn’t ready yet. I haz a sad.
Should be interesting!
Cheers,
Scott.
SpaceUnit
@smith:
He wouldn’t have had to spend his whole life building houses for poor people, curing diseases, and playing peacemaker. What a waste.
WaterGirl
@Ruckus: Counterpoint.
If the Judicial people on the right who supply the lists for the Supreme Court to Republican presidents tell her that no matter how pissed anyone gets at what she does relative to Trump…
That they PROMISE her she will be nominated for the Supreme Court…
THEN all bets are off. She will do whatever it takes.
I will just say, though, that anyone who wants a job that they are not qualified for has to be a total fucking idiot.
Ken B
@Edmund dantes: So sometime this week, but probably not Tuesday?
NotMax
Note to self: when in the area detour bigly around Urbandale, Iowa.
Burnspbesq
@Lapassionara:
You’re almost certainly right about this. I expect they will swing for the fences with a motion to dismiss and multiple motions to suppress evidence. They may also move to have the court try Nauta separately.
smith
@Another Scott: Thanks for this. Looking forward to Part II.
PAM Dirac
@WaterGirl:
But she has control of maybe 10-20% of drumpf’s legal problems. Even if she makes those go away, drumpf is not in the clear. First, the evidence will be out there and there are already a lot of people saying “i didn’t think it was that bad” from only the indictment. A formal acquittal isn’t going to overcome that. Second, if she goes all in for drumpf, she is betting that Smith doesn’t have tons more worse stuff to bring up. She is already in a job she isn’t really qualified for and still she can make it a very solid career if she doesn’t go out on a limb. She may be dumb enough to go out on that limb, but I suspect that if she does, she’ll find out the iron clad rule; every thing drumpf touches dies.
Jackie
@Shalimar: Oooooh I like that speculation!
(Checks popcorn, dark chocolate and wine supply… 👍🏻)
Old School
Pete Downunder
One legal commentator from FL thought that Cannon was assigned based on the fact that this was a related case to the previous one where she was slammed by the 11th Cir. From my days as a lawyer in CA and with some federal court practice I recall that related cases were routinely assigned to the same judge. That same commentator (can’t remember who or I’d link) thought that she would either recuse or be recused by the 11th Cir after a motion from DOJ. We shall see.
karen marie
@waspuppet: I’m curious about other cases she’s handled since she’s been on the bench. What are the number/percentage of times she’s been reversed on appeal? What kind of cases has she presided over?
PAM Dirac
@karen marie: For one politically charged case, see my comment at 64
SuzieC
@Baud: I believe the Government also has the right to demand a jury trial.
Burnspbesq
@Jackie:
The problem for Trump is that Judge Howell in D.C. already ruled that the crime-fraud exception applies to Corcoran’s testimony and notes. Cannon’s not bound to follow that ruling, but the Eleventh Circuit will take not of it if this issue comes before it—especially if Cannon’s ruling is of the quality we’ve come to expect from her.
UncleEbeneezer
Here is the LegalAF crew discussing the Cannon factor. Former Prosecutor Karen Friedman Agnifilo has also worked with and knows Jack Smith. I can’t summarize since I am only listening now.
Chief Oshkosh
@Ruckus: From the little I’ve read about her, I honestly don’t think that she understands her job as a judge. BTW, this would not be unique. Profound dumbasses get appointed to various benches around country all the time.
James E Powell
Portions of relevant statutes & preliminary comments. NB – I have never asked a judge to recuse or disqualify, though at times I thought about it.
Seems like the motion would have to be filed right away. Also there is case law that the motion for disqualification cannot be based on the judge’s conduct or statements made in the subject proceeding. The basis has to be extra-judicial.
Consider what the motion must say & what would have to be in the supporting affidavit & exhibits. “Judge Cannon must be disqualified because . . . “
Shalimar
@Pete Downunder: That seems very unlikely. The previous case was civil, not criminal. And the 11th Circuit ruled (among other slapdowns) that she didn’t have jurisdiction over that case, she should have transferred it to the judge who authorized the search warrant.
bbleh
@Chief Oshkosh: @Ruckus: @Dangerman: @WaterGirl: @PAM Dirac: Ok, time to quantify the verbiage. What are your assessed probabilities (total must = 100%) for the following scenarios:
(1) Best case: Cannon sees the writing on the wall and recuses, either on her own or when Jack Smith politely asks her to do so early on.
(2) He asks, but she won’t, so he appeals, and 11CA replaces her, for one or more of the widely-discussed reasons.
(3) She doesn’t recuse herself, and either he doesn’t ask or 11CA won’t, but at some point before or during the trial she does something egregious enough to result in a request to 11CA (or the Chief Judge? I dunno if that’s possible), and she’s replaced.
(4) None of the above happens, the prosecution presents most of its case, the time approaches when she could order an acquittal, and then Smith tries (either for the first time or again) to get her replaced, and 11CA replaces her.
(5) None of the above: she doesn’t recuse, and he doesn’t ask, or if he does, 11CA won’t, she stays as trial judge, and she DOESN’T order an acquittal.
(6) Worst case: same as (5), except she DOES acquit.
I’ll go with 15-10-25-5-30-15.
kindness
From what I read at LG&M & other sites, Cannon is the judge for Trump’s arraignment, not yet his trial judge. The 11th CA has a rule in place that does not allow judges who have already been judged to be biased with particular defendants to sit as judges for trials for those defendants. Cannon has already been judged to be biased for Trump by the 11th CA with her earlier shenanigans for Trump. No way Jack Smith allows her to preside over Trump’s case.
TriassicSands
This makes me think of the trial of Leonard Peltier. Two defendants, Robert Robideau and Darrelle Butler, accused of killing two FBI agents on the Pine Ridge Indian Reservation in South Dakota, were tried and acquitted in Iowa. It was an extraordinary case and Butler and Robideau got off on a legitimate claim of self-defense. The DOJ then moved the trial of Peltier to Fargo, ND, where he was connvicted of the murder of the two FBI agents. Peltier was tried separately from the other two because he had fled to Canada and was only apprehended somewhat later and extradited to the U.S. to stand trial. The judge in ND was a nightmare. He basically ruled the opposite way that the judge in Iowa had ruled on virutally every issue and motion and Peltier’s trial was a travesty. The judge can make all the difference in the world and Cannon, who has demonstrated her incompetence and bias, must not be allowed to preside over Trump’s trial.
Peltier was sentenced to two consecutive life sentences in 1977 and he is still in prison. He was eligible for parole in 1993. I was incredibly disappointed in Obama for not exercising clemency and having Peltier released from prison. Obviously, Trump would never have considered such an act, since his clemency is reserved for criminals who are loyal to him. Biden will get a chance (he could do it at any time) and I hope he comes through, but the overwhelming weight of opinion against clemency will require courage to overcome. Because the victims were FBI agents, having Peltier released will cause a hugh Republican uproar, since they are such devotees of the rule of law(lessness).
The two agents who were killed behaved recklessly and created a situation that caused they deaths. Anyone interested in an example of the American injustice system can read “In the Spirit of Crazy Horse” by Peter Matthiessen, which gives a remarkable account of the events. The book is long, but well worth reading.
UncleEbeneezer
Ben Miesalas on US v. Martin and how it might effect Cannon (he’s optimistic 11th Circuit might push for recusal).
PAM Dirac
@bbleh: My guess is:
<1-<1-5-<1-70-24
feebog
@Burnspbesq:
And the D.C. circuit court already affirmed Howell’s ruling. I don’t see how Cannon excludes Corcoran’s notes, I assume the 11th circuit would defer to the earler D.C. ruling.
prostratedragon
@NotMax: I don’t know, NotMax, the hover over that url doesn’t look too promising …
Yutsano
@PAM Dirac
”Never tell me the odds!”
– some nerf herder
UncleEbeneezer
@TriassicSands: My Ex GF had a relationship with Norman Brown, one of the key witnesses in the Peltier affair (sadly he was an abusive jerk). And she tried for several years to get a movie made about Peltier. Peltier had a major crush on her and even did a portrait painting of her that she still owns. She spent a lot of time on Pine Ridge doing interviews and knew Leonard pretty well. She always thought the idea of Leonard as the killer was ludicrous. She said he wasn’t that important in their community or tribal leader he likes to pretend to be. And he secretly likes the big man perception that he got as a result of his conviction.
Scout211
Gym Jordan went on CNN to defend Trump. Even as Dana Bash kept reminding him that Trump admitted he had classified documents that weren’t declassified, Jordan persisted in claiming that Trump had magical powers of declassification in his mind. He used a 1988 SCOTUS ruling that sounds like he didn’t read. Or more likely, has willfully misinterpreted. But IANAL.
The video is up on CNN if you can tolerate a yelling Jordan. This write-up is from Rolling Stone:
A Yelling Jim Jordan Contradicts Trump While Defending Him
Frankensteinbeck
@SpaceUnit:
The amendment actually reads “It’s Okay If You Are A Republican.”
PAM Dirac
@Yutsano: Ha, Ha. My mind went to “I got the horse right here, his name is Paul Revere …” probably because I spent last weekend attending festivities for the 50th anniversary of my high school graduation. The big stage production our senior year was “Guys and Dolls”.
Another Scott
(Kerr is a semi-famous Berkeley law prof.)
I wonder how much of a circus Cannon will let her part of the trial be (if she’s actually the judge beyond arraignment)…
Cheers,
Scott.
Ruckus
@WaterGirl:
I don’t really consider that a counter point, but normal for some people who will do ANYTHING for their careers.
I don’t expect her to do anything normal, reasonable or rational. I am surprised when anyone on the right, but especially on the far right side of the aisle do anything normal in human terms, because mostly over my decades I’ve noticed that mostly the right is rather rigid minded when it comes to freedom for any one other than them or people that hate what they hate for extremely asinine reasons.
Kent
I’m not sure it is safe to assume that Cannon won’t recuse herself if she has any legitimate grounds to do so.
No judge is going to want to have this circus dumped on their lap and live with the 24/7 media circus that will entail. Her anonymous private life is essentially going to be over if she takes the case. And every slice of dirt on her going back to middle school will be dredged up for public examination and ridicule
It is safe to assume that she very well knows this.
She isn’t some back bench GOP crazy in the House who needs to face a GOP primary electorate every 2 years.
Brachiator
@Wapiti:
I don’t think this would ever happen. That is, Trump truly believes that he is innocent, perfect and without sin.
ETA. It is weird how Trump and former UK prime minister are both on the road peddling lies about witch hunts out to get them.
Burnspbesq
According to someone I know who was in attendance, Cannon was a no-show for her 20-year reunion at Duke recently. I take this as evidence that she knows she’s under a microscope.
Chief Oshkosh
@bbleh: That’s too complicated for my caveman brain, but I appreciate your delineating various (more-or-less) decision points. In my OP, I was just saying that I don’t see a downside to immediately requesting that she recuse herself and that I do see downsides to not requesting that immediately. Her record and the fact that she hasn’t already recused herself suggest that she is not to be trusted, so may as well start the process of kicking her off the case sooner rather than later.
Frankensteinbeck
@Kent:
I don’t think that’s safe to assume, because people can fail to see the most shockingly obvious things, but otherwise you have a good argument. We’ll see what happens!
All I know is, Jack Smith gamed it out already. His conclusions I cannot guess, but this is no surprise to him.
NotMax
@prostratedragon
Go ahead, safe to click. YOLO.
;)
trnc
Curious where you read JOAs are unappealable. I thought all district court rulings were subject to being overturned by the appeals court over it. This would seem to support that:
https://www.law.cornell.edu/rules/frcrmp/rule_29
Frankensteinbeck
@Another Scott:
Honestly, that wouldn’t surprise me at all. Trump is stubborn and delusional and has shown he is willing, even eager, to file in court the same cockamamie claims he makes in public.
Another Scott
BBCNews – Police release Nicola Sturgeon without charge.
Cheers,
Scott.
smith
@Frankensteinbeck: I can’t imagine even his lawyers going along with that, but thinking about it — what if he runs out of willing lawyers and decides to represent himself? Not sure we’d survive that much comedy.
bbleh
@PAM Dirac: Eeek 24. And I thought I was being pessimistic!
It’s sorta nerdy, but numbers do make some things clearer.
Ruckus
@Chief Oshkosh:
Well she does drive down the freeway in the right lane with her right turn signal always on……
Seriously, I imagine without you stating it that a lot of judges really don’t have the chops to be a judge. I’ve been on juries and have to say that the judge quality was better than I expected but there was a somewhat wide level in quality. It is somewhat a crap shoot and in trial with political overtones, in this day and age, I’d bet that the actual level of judging is not going to necessarily be first rate. It is/can be one of the parts of our government that is always going to be less than perfect. But then what is perfect after all?
Burnspbesq
@trnc:
As I understand it, post-verdict Rule 29 motions are appealable (don’t know for sure what the standard of review is). A Rule 29 motion granted at the conclusion of the prosecution case is not. Hell if I know why that line is drawn.
WaterGirl
@PAM Dirac: She’s greedy, she’s ambitious, and she’s not that smart. She’s a tool for whoever will feed the greed and ambition.
Just my opinion.
WaterGirl
@PAM Dirac:
From your lips to dog’s / god’s ears.
Frankensteinbeck
@smith:
He has a proven record of badgering them into filing motions no sane lawyer would. I don’t honestly know how much the client calls the shots in an attorney/client relationship like this.
PAM Dirac
@Frankensteinbeck:
I’m thinking that Cannon is going to be looking at the resting executioner’s face and subliminally get the question “Do you feel lucky, punk?”
bbleh
@trnc: From poking around more on Rule 29, I’m pretty sure it’s appealable ONLY if a jury has rendered a verdict of guilty. If before then, game over.
Ruckus
@kindness:
That may be why he’s not seemingly worrying all that much. Of course it seems like thinking one can read any of his emotions is sort of a fools errand.
WaterGirl
@James E Powell:
Maybe you can help us with that?
WaterGirl
@kindness:
Andrew Weissman and Mary McCord blew that one out of the water right away in their podcast last night. Them vs. LGM, my money is on them. But I would prefer the LGM outcome!
WaterGirl
@bbleh: I’ll play, but I’d like 2 turns, please, because I go back and forth on whether Jack Smith will wait, or not wait.
5 – 5 – 5 – 5 – 75 – 5.
OR
5 – 5 – 75 – 5 – 5 – 5.
trnc
@bbleh:
@Burnspbesq:
Weird. Regardless of rarity, that really seems like the kind of thing that should require more than one judge to make.
WaterGirl
@Scout211: It’s like Gym Jordan has bought into the “president for life” theory, where Trump retains all the powers of the presidency forever.
psst: Gym, there is only one president at a time and right now it’s not Trump.
RandomMonster
Or maybe even Bedminster. After all, no one is talking much about what happened to those documents Trump had delivered there. I have to think there’s a whole investigation into that going on.
James E Powell
@WaterGirl:
An argument based on 28 USC §455(a) – her impartiality might reasonably be questioned – has the best chance. Smith could show that the public believes she is in the tank for Trump and that reasonable people do not believe she is impartial.
The argument under 28 USC §455(b)(1) is harder. I haven’t done complete research, but it seems that it would require more than “She made outrageously improper rulings in a prior case in favor of defendant Trump.” In fact, if I’m reading Likety correctly, that can’t be the basis for disqualification. The remedy for that was the appeal.
The motion would have convince Judge Cannon – or later the appellate court – that she “display[ed] a deep-seated favoritism or antagonism that [makes] fair judgment impossible.” I’m not sure that her appointing a special master based on incorrect interpretations of the – or even the law she seems to have imagined – rises to that level.
JPL
@WaterGirl: Wouldn’t she have to be impeached?
WaterGirl
@Burnspbesq: Interesting!
WaterGirl
@Frankensteinbeck:
Well said!
WaterGirl
@Frankensteinbeck: Surely his attorneys would say NO to that.
Professor Bigfoot
@Dorothy A. Winsor:
Bearded and wearing his ICC robes, he looks like the Grand Inquisitor, already pissed off and ready to burn someone at the stake.
AM in NC
@Burnspbesq: How did I not know this hacktackular right-winger was (of course) a Dookie?
bbleh
@WaterGirl: ok then we’ll call it 5 – 5 – 37.5 – 5 – 37.5 – 5
It’s kinda nerdy, and I’m sure the scenarios could be made fewer and tighter, but look at the 3 values for (6) we have: 15% (me) 24% (PAM) and 5% (you). That’s a factor of 5 difference in estimated probabilities of the worst-case scenario! That’s the kind of thing I find an exercise like this can tease out.
Omnes Omnibus
Let me ask this question here. If all you who have just learned about these procedural maneuvers in the past couple of days are able to game some of this out, do you really think the prosecution team who charge of one of the biggest cases in DOJ history hasn’t spent a few minutes thinking about the options here?
bbleh
@Professor Bigfoot: I keep trying to tell people, that’s his formal Klingon consular outfit. Being half-and-half as well as intelligent, he was considered a natural as a diplomat. And from what I hear, his sense of honor was outraged by TFG, which is why he volunteered for the job.
Just wait ’til he brings his batleth to court. I hear he brought it to the initial interview with Meadows, and that was pretty much that.
bbleh
@Omnes Omnibus: I certainly hope so! But per the OP, it seems that People Far More Knowledgable Than We are kinda all over the map about it. One school of thought seems to have it that if Smith asks for recusal/reassignment, it will be granted unto him. Another seems to think it probably won’t ever come to that. A third seems to think it might well be pivotal and it wouldn’t be easy. Ees interesting.
Ruckus
@Omnes Omnibus:
We aren’t smarter than the people that get paid to do this for a living? How is that possible?
BTW THIS IS SNARK.
But I really appreciate your comment, it is good to never forget that in life there are people that do things most everyone else don’t have a clue about.
mvr
@Burnspbesq: If she does exclude it I would expect an immediate appeal. This is the kind of issue the state can do that with. What they can’t do that with is stuff that happens mid-trial. That’s why they try to front load it all with pre-trial motions. But not everything can be pre-tried. And then after trial there is sentencing over which she has a lot of discretion.
mvr
@trnc: Your link says
WaterGirl
@Omnes Omnibus: Not sure if you have read the comments, but a good number of of us have acknowledged in the comments that Jack Smith has thought it all through and gamed it all out. I believe I even acknowledged it in the post up top.
What we’re mostly doing is speculating on how Jack Smith is going to approach this, and parsing the differing takes from different experienced attorneys and former prosecutors.
edited
Omnes Omnibus
@WaterGirl: I am just tired of the speculation on the topic. I probably should have just skipped the whole thread.
WaterGirl
@Omnes Omnibus: I get it. For me and for some of us, it’s helpful, for you it’s not!
That’s how I feel about talk of Musk these days. Yawn. I just skip those. That’s the nice thing about Balloon Juice – read the ones you want, skip the ones you don’t.
Jackie
Probably a dead thread, but don’t know where else to plug this in. TIFG is having a wee bit of a problem hiring lawyers in Florida:
“…But the case against Trump is so big and complex due to the central role of sensitive government records that Trump insiders are looking for a specialist in the Classified Information Procedures Act, which governs the use of sensitive records in criminal trials.”
“Trump’s team has interviewed at least six law firms to join his legal defense — including two top criminal defense attorneys from South Florida — and may sign one in the coming days. But some attorneys who have been contacted by Trump’s team declined to work for the former president.”
““The problem is none of us want to work for the guy. He’s a nightmare client,” said one top federal criminal defense attorney in the Southern District of Florida, noting that Trump’s legal team has been the subject of numerous unflattering stories about infighting and the capriciousness of Trump.”
““I would love to do it. I think the case is weak. But my wife would divorce me and my kids wouldn’t talk to me if I defended Trump,” said another who had informal discussions with Trump’s team.”
https://themessenger.com/politics/trump-plans-south-florida-legal-huddle-as-he-struggles-to-find-lawyers-before-court-appearance
Odie Hugh Manatee
I wouldn’t put it past TFG to attempt to blackmail the government into dropping the prosecution as a last resort/Hail Mary. Claim to have a third party ready to release the documents he still has, or else. All bets are off if he thinks he is going to go to prison. All of his life he has been able to manipulate people into defending him and paying his way while doing so. Money, lawyers and supporters have sustained his lifestyle and now it may all end.
He is going to get desperate if his Insurrection #2: Electric Prosecution Bugaloo doesn’t happen.
Scout211
@Jackie: OMG! Too funny!
El Muneco
@PAM Dirac: This, except the balance between 70 and 24 depends on how cunning Cannon thinks she is… The 70 could stay where it is or even go up if she’s thinking “messing with voir dire” and “excluding evidence” and “I get to set the jury instructions” and could go way down if she’s lazy and thinks to herself “I have One Weird Trick to make it all work”.
The idea that she will do anything other than what she was put in that position to do, considering she has a lifetime job and there is exactly zero chance of her ever being removed – which would require impeachment and conviction – is not particularly convincing to me.
Jackie
@Scout211: At least he understands his priorities!
That statement, in a nutshell, defines a LOT of households in America.
Cluttered Mind
@Chief Oshkosh: Because nuking her like this could set off a series of events that might lead to also getting her off the bench entirely. Which would be a good, good thing.