Cannon headed for recusal?
With special prosecutor Jack Smith’s Florida filing on Tuesday, says former federal prosecutor Andrew Weissman, “DOJ calls out Judge Cannon and her improper rulings, and signals it is ready and willing to take her up to the 11th Circuit.” That is, to have the Donald Trump-coddling Judge Aileen Cannon removed from the classified documents case.
The Department of Justice accuses Trump of illegally removing classified documents from the White House to his Mar-a-Lago residence and obstructing the government’s attempts to reclaim them.
Finally (CNN):
In perhaps prosecutors’ strongest rebuke yet to how Judge Aileen Cannon has handled the classified documents case against former President Donald Trump, special counsel Jack Smith said in court filings late Tuesday evening that the judge had ordered briefings based on a “fundamentally flawed” understanding of the case that has “no basis in law or fact.”
Smith’s team harshly critiqued Cannon’s request for jury instructions that embraced Trump’s claims that he had broad authority to take classified government documents and said it would seek an appeals court review if she accepted the former president’s arguments about his record-retention powers.
Basically (not a lawyer here), Cannon is teeing up for the jury a reason to acquit Trump based on a bogus reading of the law: Trump’s. (Not exactly. We’ll get to that.) His legal team alleges he had a right to take classified defense secrets under the Presidential Records Act (PRA). The DOJ calls that “a post hoc justification that was concocted more than a year after he left the White House,” and maintains it is the Espionage Act that governs classified documents. Trump faces 32 counts of violating that act.
Cannon asked the special counsel and defense attorneys to submit their own versions of the jury instructions. Smith’s filing is here.
The first scenario would instruct a jury to assess whether each of the records that Trump is accused of retaining fell into the categories of “personal” or “presidential” as laid out by the Presidential Records Act, a post-Watergate law that governs how White House records belonging to the government are to be handled at the end of a presidency.
The second version Cannon asked for assumes that as president, Trump had complete authority to take records he wanted from the White House, which would make it nearly impossible for prosecutors to secure a conviction. If she were to institute this sort of instruction, Smith’s team said, “the Government must be provided with an opportunity to seek prompt appellate review.”
“Both scenarios rest on an unstated and fundamentally flawed legal premise — namely, that the Presidential Records Act and in particular its distinction between ‘personal’ and ‘Presidential’ records, determines whether a former President is ‘authorized,’ under the Espionage Act, to possess highly classified documents and store them in an unsecure facility,” the special counsel’s team wrote.
If allowed to be presented to a jury, prosecutors said, “that premise would distort the trial.”
Not giving Cannon the benefit of the doubt her, that seems to be her point.
The New York Times adds:
At a hearing last month in Federal District Court in Fort Pierce, Fla., Judge Cannon herself expressed skepticism about Mr. Trump’s assertion, saying it was most likely not enough to dismiss the case before it went to trial.
But then within days, she made a surprising move, ordering the former president’s lawyers and Mr. Smith’s prosecutors to send her proposed jury instructions suggesting she was open to embracing the very same defense.
[…]
She has put off making several legal and logistical decisions. And she has spent time at hearings entertaining a series of unusual arguments by Mr. Trump’s lawyers that many federal judges would have rejected out of hand.
FYI (via Cornell Law School):
Mandamus at the Federal Level
In federal courts, these orders most frequently appear when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals. Instead of appealing directly, the party simply sues the judge, seeking a mandamus compelling the judge to correct their earlier mistake. Generally, this type of indirect appeal is only available if the party has no alternative means of seeking review.
Marcy Wheeler points out that Smith’s filing documents that Trump got his bullshit legal theory (that a Trump employee told him was bullshit) from a February 2022 tweet by Judicial Watch president Tom Fitton “who was not an attorney.” But he has muscles he shows off every day by squeezing himself into undersized shirts.
Trump eventually claimed:
“I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.” Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.
Wheeler writes:
Smith doesn’t, however, draw out the implication of this explicitly.
Not only has Trump been falsely suggesting — without evidence — that he did designate these documents personal records. He couldn’t have done so, because he didn’t know of this theory until over a year after he stole the documents.
But Cannon is such a chump that she has been chasing a theory spun up by Fitton, someone who has only an English BA.
Cannon may well respond poorly to Smith’s use of 20-some pages to lay all this out. It’s the kind of thing that routinely elicits miffed responses from her.
At this point, though, it seems Smith is simply laying a record for a challenge at the 11th Circuit.
Cannon may yet postpone the start of the trial scheduled for May 20 to after the November election. Pray she doesn’t have control of the case that long.
● ● ● ● ● ● ● ●
For The Win, 5th Edition is ready for download. Request a copy of my free countywide GOTV planning guide at ForTheWin.us.