Trump Charged With 37 counts of Espionage, Obstruction and related crimes

[Voronwë the Faithful]

I have to agree with Andrew Fleschman here.

[Voronwë the Faithful]

Now she is literally just making shit up!

[N.E. Brigand]

Maybe Judge Cannon actually wants to be removed from the case? It would help Donald Trump by delaying his trial for many months, no doubt, but it also would get her out of the hot seat. Is it that she knows that Trump has very little chance of winning this trial but she doesn't want to preside over his conviction?

[Voronwë the Faithful]

I don't think that is it. I think she thinks that she is setting things up so that Trump can win at trial. And while I have been all over twitter/X saying that it is time to go to the 11th, the order is so bizarre that I'm not sure it provides a basis for appeal that they can actually assert.

To be clear, she made this order totally out of the blue, not in response to any request by either party. It is reminiscent of some of her actions in the special master case. Well, the SCO found a way to get her reversed there, and they are smarter (or at least much more knowledgeable) than I am, so hopefully they will find a way here. In my opinion, at this point they have nothing to lose by going to the 11th.

[Voronwë the Faithful]

This made me laugh.

[Voronwë the Faithful]

He ain't gonna land Trump in jail if there is no trial (or if Cannon stacks the deck so much that there is no way that Trump will get convicted).

[N.E. Brigand]

David Lat reports that one thing that may be affecting Judge Cannon's ability to effectively manage this case is that two of her clerks quit.

Lat adds: "As followers of the clerkship world well know, it's highly unusual for a clerk to quit on a judge. Because a federal judicial clerkship typically lasts one year and is an extremely valuable credential, most clerks will 'ride it out' instead of quitting, even if they're miserable or have issues with their judge. The clerkship lasts only a year; the résumé value lasts for a career." But he goes on to say that he has no information about why they quit, when they quit, and whether they have yet been replaced. Regardless, the loss of two clerks in such a small federal office would be disruptive.

- - - - - - -
Edited to note that the piece has several updates at the end that I haven't read yet.

Edited again to summarize Lat's updates: one clerk left to become a mother, the other left for unexplained reasons, both left in late 2023, both have been replaced, Cannon is arguably overstaffed with clerks compared to other federal judges, and a different former clerk who spoke with Lat has nothing but praise for Cannon.

[Voronwë the Faithful]

They are talking about that on the Lawfare podcast right now, and apparently Ben Wittes knows one of the clerks, but he is being careful about what he says. Nonetheless, he does suggest that there was "some difficulty" in the clerkship.

[Voronwë the Faithful]

David Lat gives a lot more details about the clerk situation, which in turn sheds some light on the delays in the case.

Clerking For Judge Aileen Cannon: A Behind-The-Scenes Look

[N.E. Brigand]

David Lat gives a lot more details about the clerk situation, which in turn sheds some light on the delays in the case.

Clerking For Judge Aileen Cannon: A Behind-The-Scenes Look

Fascinating stuff. This part:

Many outsider observers dismiss Judge Cannon as a pro-Trump political hack. But sources of mine who know her personally push back on this, describing her as fair-minded and not particularly political. So while she definitely leans too far in Trump’s direction, giving dubious arguments from his legal team more consideration than they deserve, I think it’s oversimplifying matters to dismiss all her rulings as purely the product of “MAGA judging.”

Makes me think that Cannon is a bit like Bill Barr.

Interesting that Cannon's practice of having clerks come in early for a few days of unpaid orientation is said (in an update) to be standard practice in that district. In my industry, there's been a strong movement away from allowing any unpaid work, which is generally understood to benefit the privileged.

Do you think that "Mary" got permission from the appellate judge for whom she'll next be clerking to speak with Lat?

[Voronwë the Faithful]

Judicial clerks are the very definition of 'the privileged'.

[Voronwë the Faithful]

[Voronwë the Faithful]

[N.E. Brigand]

Lee Kovarsky, a law professor at the University of Texas, warns against expecting much to happen as a result of this filing. He argues that Special Counsel Jack Smith will only have a chance to appeal (via writ of mandamus) if Judge Cannon provides jury instructions at this time, as Smith has requested. If Cannon instead waits until jurors are sworn in and then issues the instructions, and they are the illegitimate instructions that Trump wants (which would inevitably lead to Trump's acquittal), there's no way to appeal, and double jeopardy will have attached, so Trump will go free: "the system can't overcome a judge who is deeply motivated to let the defendant off." Kovarsky feels that Smith's only chance at protecting the case -- if Cannon does seem to be going down that road -- is to seek her recusal before trial. But that's tough going too, since Cannon hasn't actually done anything clearly wrong. She's just asking questions, and an appeals court is very unlikely to say that a judge has to issue jury instructions before the trial.

-- -- -- -- -- -- --
Edit: That said, Roger Parloff's analysis last week does identify one case (but only one) in another circuit where the government's writ of mandamus during a trial was granted and the judge was required to change the jury instruction.

[N.E. Brigand]

Marcy Wheeler makes a good point: by explaining in this filing that it was only a year after leaving office that Donald Trump got the idea -- from Judicial Watch's Tom Fitton -- that he could declare government records to be personal records, Jack Smith is also implicitly showing that even if the legal theory were sound, Donald Trump was unaware of it at the time he left office (something Smith also shows -- as Kyle Cheney notes in the tweets which V shared above -- by referencing Trump officials who were interviewed and said they had no knowledge of Trump, as president, having declared these documents to be personal records).

[Voronwë the Faithful]

Lee Kovarsky, a law professor at the University of Texas, warns against expecting much to happen as a result of this filing. He argues that Special Counsel Jack Smith will only have a chance to appeal (via writ of mandamus) if Judge Cannon provides jury instructions at this time, as Smith has requested. If Cannon instead waits until jurors are sworn in and then issues the instructions, and they are the illegitimate instructions that Trump wants (which would inevitably lead to Trump's acquittal), there's no way to appeal, and double jeopardy will have attached, so Trump will go free: "the system can't overcome a judge who is deeply motivated to let the defendant off." Kovarsky feels that Smith's only chance at protecting the case -- if Cannon does seem to be going down that road -- is to seek her recusal before trial. But that's tough going too, since Cannon hasn't actually done anything clearly wrong. She's just asking questions, and an appeals court is very unlikely to say that a judge has to issue jury instructions before the trial.

-- -- -- -- -- -- --
Edit: That said, Roger Parloff's analysis last week does identify one case (but only one) in another circuit where the government's writ of mandamus during a trial was granted and the judge was required to change the jury instruction.

I have argued in discussions with some on twitter (all of whom know more than I do), that because these purported jury instructions involve a pure issue of law and not fact, Cannon's failure to agree to the SCO's request that she rule on them right away (and certainly before a jury is impaneled, would itself constitute sufficient "clear error" to justify mandamus. But that might the kind of creative lawyering that sounds good until it gets shot down.

Interestingly, Trump's team also wants Cannon to rule right away, in the opposite direction, as they point out quite correctly that if she adopted her second scenario that would require that she grant their motion to dismiss the case for constitutional vagueness. It is also worth noting that she still hasn't ruled on the other motion that was heard in the hearing on March 14, the ridiculous motion to dismiss the case based on the Presidential Records Act, despite saying at the hearing that she would rule promptly.

[Voronwë the Faithful]

It is also worth noting that she still hasn't ruled on the other motion that was heard in the hearing on March 14, the ridiculous motion to dismiss the case based on the Presidential Records Act, despite saying at the hearing that she would rule promptly.

Well, now she has rejected it, but in the process:

[N.E. Brigand]

It also seems "unprecedented and unjust" for Judge Cannon to have asked the parties to provide sample jury instructions for a legally impossible situation, but here we are.

Lee Kovarsky, a law professor at the University of Texas ... argues that Special Counsel Jack Smith will only have a chance to appeal (via writ of mandamus) if Judge Cannon provides jury instructions at this time, as Smith has requested. If Cannon instead waits until jurors are sworn in and then issues the instructions, and they are the illegitimate instructions that Trump wants (which would inevitably lead to Trump's acquittal), there's no way to appeal, and double jeopardy will have attached, so Trump will go free: "the system can't overcome a judge who is deeply motivated to let the defendant off." Kovarsky feels that Smith's only chance at protecting the case -- if Cannon does seem to be going down that road -- is to seek her recusal before trial. But that's tough going too, since Cannon hasn't actually done anything clearly wrong. She's just asking questions, and an appeals court is very unlikely to say that a judge has to issue jury instructions before the trial.

After arguing that a motion for recusal, although likely to fail ("this is all very depressing for people that want to see Trump held to account, but I'm just explaining how the world is; not how it should be") is probably Jack Smith's next move, Lee Kovarsky then endorsed an alternative that others have been floating: Jack Smith could "file a motion in limine to exclude any evidence about the PRA to kind of force Judge Cannon's hand."

Edited to note that among those making that suggestion are Bradley Moss and Andrew Weissmann.

Edited further to note that Joyce Vance's argument that Judge Cannon's response, although somewhat intemperate, actually delivers what Jack Smith wanted: a clear ruling against Trump on the Presidential Records Act. While Vance thinks that a successful recusal request at this time would be the ideal outcome, it's unlikely to succeed, so instead, "if Judge Cannon tried to give a PRA instruction favorable to Trump at trial, the government would be entitled to take an immediate appeal, halting the proceedings until the 11th Circuit could rule on whether it was correct, or not." (But as I previously noted, there's apparently only been one case ever where an appeals court ruled against jury instructions after the jury had been sworn.)

(I'm curious about Trump's final goals in all of this. After he's acquitted by a jury whose hands are tied by Judge Cannon, will he sue the government for the return of the classified documents he stole because she's ruled that they're his "personal" records?)

[Voronwë the Faithful]

After arguing that a motion for recusal, although likely to fail ("this is all very depressing for people that want to see Trump held to account, but I'm just explaining how the world is; not how it should be") is probably Jack Smith's next move, Lee Kovarsky then endorsed an alternative that others have been floating: Jack Smith could "file a motion in limine to exclude any evidence about the PRA to kind of force Judge Cannon's hand."

Edited to note that among those making that suggestion are Bradley Moss and Andrew Weissmann.

Add to that list Roger Parloff (on the Lawfare Trump Trials podcast today) and me.

Edited further to note that Joyce Vance's argument that Judge Cannon's response, although somewhat intemperate, actually delivers what Jack Smith wanted: a clear ruling against Trump on the Presidential Records Act. While Vance thinks that a successful recusal request at this time would be the ideal outcome, it's unlikely to succeed, so instead, "if Judge Cannon tried to give a PRA instruction favorable to Trump at trial, the government would be entitled to take an immediate appeal, halting the proceedings until the 11th Circuit could rule on whether it was correct, or not." (But as I previously noted, there's apparently only been one case ever where an appeals court ruled against jury instructions after the jury had been sworn.)

For some reason, I am unable to read Joyce Vance's posts on twitter. I don't know if she blocked me for some reason (I can't imagine why that would be), or if it is for some other reason. It is a little annoying because a number of people that I follow respond to her posts and I don't know what it is that they are responding to.

[N.E. Brigand]

For some reason, I am unable to read Joyce Vance's posts on twitter. I don't know if she blocked me for some reason (I can't imagine why that would be), or if it is for some other reason. It is a little annoying because a number of people that I follow respond to her posts and I don't know what it is that they are responding to.

Here is her new Substack post on this issue (which I haven't read).