FBI search warrant executed at Mar-a-Lago (Update: Trump Indicted!)

[emailking]

I'm sure Cannon would be fine with agreeing to dismiss the case but Chutkan might not, particularly if he's already been convicted. Then it's up to whether SCOTUS allows him to self pardon.

[brucejoel99]

https://twitter.com/kyledcheney/status/1775370773705687271https://twitter.com/hugolowell/status/1775365423384441283https://twitter.com/AnnaBower/status/1775366184805839085https://twitter.com/BradMossEsq/status/1775365692734246919https://twitter.com/BradMossEsq/status/1775366636750471194https://twitter.com/harrylitman/status/1775367209554170287https://twitter.com/harrylitman/status/1775367552992239707https://twitter.com/rgoodlaw/status/1775367828184375465https://twitter.com/harrylitman/status/1775367958216536553https://twitter.com/harrylitman/status/1775368352921436417https://twitter.com/harrylitman/status/1775368912001171815https://twitter.com/harrylitman/status/1775369655668154677https://twitter.com/harrylitman/status/1775369959331500047https://twitter.com/harrylitman/status/1775370456524329447https://twitter.com/harrylitman/status/1775371055537979900https://twitter.com/harrylitman/status/1775371567368929657https://twitter.com/secretsandlaws/status/1775370437758717978https://twitter.com/kyledcheney/status/1775373074671579198

[emailking]

Woohoo I am proud of Jack Smith for putting his foot down!

Regardless I don't think we're getting a trial here before the election but, if Trump loses, maybe we'll get a real trial at some point if he keeps her on the level.

[emailking]

A lot of the legal experts have been saying for a while now that she's been reversed twice by the 11th circuit and if she's reversed again it's 3 strikes and you're out. But I can't figure out if this is an actual legal rule or standard, or just rule of thumb from baseball/life that they're assuming would apply here too.

[emailking]

Special counsel blasts judge’s jury instruction request in Trump documents case

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.

In an unusual order last month, Cannon asked attorneys on the classified documents case to submit briefs on potential jury instructions defining terms of the Espionage Act, under which Trump is charged over mishandling 32 classified records. Specifically, Cannon asked the special counsel and defense attorneys to write two versions of proposed jury instructions.

https://www.cnn.com/2024/04/02/politics/special-counsel-mar-a-lago-jury-instructions/index.html

[Fmr. Gov. NickG]

I don't understand how Jack Smith just doesn't ask for Cannon to be removed from the case.
Even regardless of her obvious bias and ridiculous rulings, how can it not be grounds for automatic recusal when the defendant is literally the one who appointed you to the job?

[Dereich]

I don't understand how Jack Smith just doesn't ask for Cannon to be removed from the case.
Even regardless of her obvious bias and ridiculous rulings, how can it not be grounds for automatic recusal when the defendant is literally the one who appointed you to the job?

If you think about it at a lower level, statewide judges are asked all the time to rule on questions regarding the conduct of the sitting governors and legislators who appointed them or the rivals of those who appointed them. You'd run out of judges who could try a case if appointment was taken as evidence of bias requiring recusal.

Rules for recusal are very strict. Judges defend their own and they hate few things more than letting parties take advantage of them by trying to recusing judges out until they get one they like. So the rule say you've got to name specific things the judge did that show bias (28 USCA § 455) that you can't use adverse rulings to show that they were biased (like a billion cases, United States v. Studley, 783 F.2d 934 (9th Cir. 1986) to pick one out of a hat), and that you've got to show facts that show bias without using rumor, gossip, opinion, or conclusions while doing so (also like a billion cases, Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) to pick one).

There actually is a case I think is close-ish to this situation and shows what higher courts would do if the government really pushed for disqualification based on Trump's appointment. United States v. Gordon, 974 F.2d 1110, 1114 (9th Cir. 1992). That case involved someone trying to assassinate ex-president Reagan and the case going before a judge appointed by Reagan. The part of the appeal based on judicial recusal was pretty summarily denied:

Mr. Gordon contends that his motion for recusal should have been granted because Judge Rafeedie was appointed to the bench by President Reagan, the victim and a potential witness. It is not reasonable to suspect that Judge Rafeedie's ability to preside impartially would be affected by the fact that President Reagan appointed him.

[emailking]

If he ever moves to have her recused I imagine it will be based on how awful her rulings are. I doubt he will even bring up that Trump appointed her.

[Dereich]

If he ever moves to have her recused I imagine it will be based on how awful her rulings are. I doubt he will even bring up that Trump appointed her.

As I cited above, that can't be a basis for recusal. I'll quote the Studley case: "The alleged prejudice must result from an extrajudicial source; a judge's prior adverse ruling is not sufficient cause for recusal. Studley's first two allegations are not extrajudicial because they involve the judge's performance while presiding over her case. See Ronwin, 686 F.2d at 701. Thus, these grounds do not provide a basis for recusal."

[emailking]

I don't know how he has to frame it but a lot of legal experts seem confident if it gets bad enough he can ask to have her removed, somehow. Apparently the 11th circuit can also just assign the case to someone else on an appeal without explicitly being asked to.

[emailking]

Frustrated Prosecutors Ask Trump Documents Judge to Act on Key Claim
The push for a quick decision on one of the former president’s most far-fetched claims is an unusual and risky move in a case Judge Aileen Cannon has allowed to become bogged down.

In an open display of frustration, federal prosecutors on Tuesday night told the judge overseeing former President Donald J. Trump’s classified documents case that a “fundamentally flawed” order she had issued was causing delays and asked her to quickly resolve a critical dispute about one of Mr. Trump’s defenses — leaving them time to appeal if needed.

The unusual and risky move by the prosecutors, contained in a 24-page filing, signaled their mounting impatience with the judge, Aileen M. Cannon, who has allowed the case to become bogged down in a logjam of unresolved issues and curious procedural requests. It was the most directly prosecutors have confronted Judge Cannon’s legal reasoning and unhurried pace, which have called into question whether a trial will take place before the election in November even though both sides say they could be ready for one by summer.

In their filing, prosecutors in the office of the special counsel, Jack Smith, all but begged Judge Cannon to move the case along and make a binding decision about one of Mr. Trump’s most brazen claims: that he cannot be prosecuted for having taken home a trove of national security documents after leaving office...

https://www.nytimes.com/2024/04/03/us/politics/trump-documents-case-judge-cannon.html

[brucejoel99]

A lot of the legal experts have been saying for a while now that she's been reversed twice by the 11th circuit and if she's reversed again it's 3 strikes and you're out. But I can't figure out if this is an actual legal rule or standard, or just rule of thumb from baseball/life that they're assuming would apply here too.

I don't think that's a hard-&-fast rule of the judiciary, formal or informal (or at least I've never heard of it), so much as it's just taken-for-granted based on the fervor of the last 2 Cannon 11th Circuit benchslaps (esp. since chief Pryor was on both panels) that they'll reassign-on-remand without Smith even explicitly asking them to if they have to deal with any more Cannonfodder, i.e., "ah sh*t, here we go again."

I don't understand how Jack Smith just doesn't ask for Cannon to be removed from the case.

Post-indictment, Smith has to wait for her to issue a clearly-erroneous holding to be able to file for mandamus (an appeal of clear-error) at the 11th, so ever since she got the case back after her first 2 pre-indictment benchslaps by the 11th in the Special Master matter, she's resisted issuing an egregious, appealable final ruling-of-law (her discovery rulings have been either mostly fine or are still under reconsideration & so aren't final yet, & her ordering the parties to propose jury instructions under her scenarios wasn't a ruling - let alone a final ruling - on anything so much as just a request for info) since she doesn't wanna be embarrassed by the 11th again &/or doesn't want them reassigning the case before jeopardy attaches to Trump, so she's been (badly) telegraphing a plan to hold off on dealing with this legal question that'd ordinarily need to be dealt with in the dismissal pre-trial phase by passing it off as a factual question that she can instruct the jury to take into consideration during their deliberations on the charges, because even though government prosecutors can still appeal jury instructions before they're delivered, timing a decision after jeopardy attaches to Trump when the jury gets sworn-in obviously risks being substantively fatal to ever successfully prosecuting this.

Even regardless of her obvious bias and ridiculous rulings, how can it not be grounds for automatic recusal when the defendant is literally the one who appointed you to the job?

If you think about it at a lower level, statewide judges are asked all the time to rule on questions regarding the conduct of the sitting governors and legislators who appointed them or the rivals of those who appointed them. You'd run out of judges who could try a case if appointment was taken as evidence of bias requiring recusal.

Rules for recusal are very strict. Judges defend their own and they hate few things more than letting parties take advantage of them by trying to recusing judges out until they get one they like. So the rule say you've got to name specific things the judge did that show bias (28 USCA § 455) that you can't use adverse rulings to show that they were biased (like a billion cases, United States v. Studley, 783 F.2d 934 (9th Cir. 1986) to pick one out of a hat), and that you've got to show facts that show bias without using rumor, gossip, opinion, or conclusions while doing so (also like a billion cases, Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) to pick one).

There actually is a case I think is close-ish to this situation and shows what higher courts would do if the government really pushed for disqualification based on Trump's appointment. United States v. Gordon, 974 F.2d 1110, 1114 (9th Cir. 1992). That case involved someone trying to assassinate ex-president Reagan and the case going before a judge appointed by Reagan. The part of the appeal based on judicial recusal was pretty summarily denied:

Mr. Gordon contends that his motion for recusal should have been granted because Judge Rafeedie was appointed to the bench by President Reagan, the victim and a potential witness. It is not reasonable to suspect that Judge Rafeedie's ability to preside impartially would be affected by the fact that President Reagan appointed him.

Recent extent of the record here too:

This and similar arguments premised on a federal judge's appointment to the bench by a president and alleged political affiliation have been rejected by courts. See, e.g., Armenian Assembly of Am., Inc. v. Cafesjian, 783 F. Supp. 2d 78, 93 (D.D.C. 2011) ("The case law is clear that recusal is not warranted where a judge is alleged to be biased based solely on political connections to the President who appointed [him]."); Klayman v. Judicial Watch, Inc., 744 F. Supp. 2d 264, 277 (D.D.C. 2010) ("[T]hat the undersigned was appointed to the federal bench by former President Clinton, of whom Klayman has allegedly been critical in the past, does not warrant or justify disqualification.") (citing Klayman v. Judicial Watch, Inc., 628 F. Supp.2d 98, 110-11 (D.D.C. 2009) ("(I)t is clear that the mere fact that the undersigned was appointed by the former Clinton administration—where former President Clinton is neither a party to or otherwise involved with this lawsuit—does not warrant or require recusal in the instant case."); Karim–Panahi v. United States Congress, 105 F. App'x 270, 274-75 (D.C. Cir. 2004) (affirming lower court's denial of motion for recusal based on allegations that the judge was "biased because of her 'political-religious connections' and her alleged loyalty to those who selected, confirmed and appointed her"). Even when the President responsible for nominating the judge is actually a party to the litigation, courts have held that recusal is not warranted. See In re Executive Office of President, 215 F.3d 25, 25 (D.C. Cir. 2000); Scott v. Perry, Case No. A-15-CA-11-SS, 2015 WL868995, at *1 (W.D. Tex. Feb. 27, 2015) ("Having reviewed the Complaint and the file as a whole, the Court can discern absolutely no meritorious basis upon which former President George W. Bush could be named as a defendant in this lawsuit. Moreover, even were Scott to name former President Bush as a defendant, a federal judge need not recuse himself from every case involving the President who appointed him. A federal judgeship is a life-tenured position, and federal judges take an oath to "faithfully and impartially discharge and perform all duties... under the Constitution and laws of the United States." 28 U.S.C. § 453. As the D.C. Circuit has noted, Justices Ginsburg and Breyer, both Clinton appointees, participated in Clinton v. Jones, 520 U.S. 681 (1997), and Chief Justice Burger and Justices Blackmun and Powell, all Nixon appointees, participated in United States v. Nixon, 418 U.S. 683 (1974). In re Executive Office of the President, 215 F.3d 25, 25-26 (D.C. Cir. 2000).") (citing, e.g., United States v. Gordon, 974 F.2d 1110, 1114 (9th Cir. 1992), overruled on other grounds by Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), as recognized in United States v. Hanna, 293 F.3d 1080, 1088 n. 5 (9th Cir. 2002); United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) ("It is not reasonable to suspect that Judge Rafeedie's ability to preside impartially would be affected by the fact that President Reagan appointed him.").

Based on the reasoning in these cases, the court concludes that mere appointment by a particular president is insufficient to convince a reasonable person that personal bias or prejudice exists. Even if former President Clinton were a party to this case, Pennie's belief regarding the attenuated connection between the court, the former president, and his wife's political speeches is based entirely on unsupported belief, conjecture, and speculation.

Can't take it for granted that a Trump judicial appointee will be loyal to him as political thanks for the lifetime appointment or because he continues to influence their relationships with fellow conservatives when it's often demonstrably false in cases involving him re: his unlawful executive actions, taxes & criminal investigations, "stolen" election lawsuits, etc., etc.

[emailking]

https://twitter.com/KaelanDC/status/1775647968453926933

[brucejoel99]

https://twitter.com/bradmossesq/status/1775958618069766255https://twitter.com/kyledcheney/status/1775958948375306242https://twitter.com/bradmossesq/status/1775959000149864633https://twitter.com/emptywheel/status/1775959653404365212

[brucejoel99]

https://twitter.com/bradmossesq/status/1775958618069766255
https://twitter.com/kyledcheney/status/1775958948375306242
https://twitter.com/bradmossesq/status/1775959000149864633
https://twitter.com/emptywheel/status/1775959653404365212

https://twitter.com/annabower/status/1775960885925748832https://twitter.com/bradmossesq/status/1775962668211335275https://twitter.com/harrylitman/status/1775963716791709876

[emailking]

Trump, who regularly attacks a judge's child, says Smith should be sanctioned for "attacking" Judge Cannon.

Deranged “Special” Counsel Jack Smith, who has a long record of failure as a prosecutor, including a unanimous decision against him in the U.S. Supreme Court, should be sanctioned or censured for the way he is attacking a highly respected Judge, Aileen Cannon, who is presiding over his FAKE Documents Hoax case in Florida. He is a lowlife who is nasty, rude, and condescending, and obviously trying to “play the ref.” He shouldn’t even be allowed to participate in this sham case, where I, unlike Crooked Joe Biden, Hillary Clinton, and all the rest, come under the Presidential Records Act. I DID NOTHING WRONG, BUT BIDEN DID, AND THEY LET HIM OFF SCOT-FREE. HOW DID THAT HAPPEN, JACK? A TWO TIERED SYSTEM OF JUSTICE. ELECTION INTERFERENCE!

[brucejoel99]

Trump, who regularly attacks a judge's child, says Smith should be sanctioned for "attacking" Judge Cannon.

Deranged “Special” Counsel Jack Smith, who has a long record of failure as a prosecutor, including a unanimous decision against him in the U.S. Supreme Court, should be sanctioned or censured for the way he is attacking a highly respected Judge, Aileen Cannon, who is presiding over his FAKE Documents Hoax case in Florida. He is a lowlife who is nasty, rude, and condescending, and obviously trying to “play the ref.” He shouldn’t even be allowed to participate in this sham case, where I, unlike Crooked Joe Biden, Hillary Clinton, and all the rest, come under the Presidential Records Act. I DID NOTHING WRONG, BUT BIDEN DID, AND THEY LET HIM OFF SCOT-FREE. HOW DID THAT HAPPEN, JACK? A TWO TIERED SYSTEM OF JUSTICE. ELECTION INTERFERENCE!

One wonders how Donald defines "respected"...

[brucejoel99]

https://twitter.com/BradMossEsq/status/1777327907200741595

[brucejoel99]

https://twitter.com/BradMossEsq/status/1777327907200741595

https://twitter.com/kyledcheney/status/1777437582827139298https://twitter.com/emptywheel/status/1777437195118248327https://twitter.com/BradMossEsq/status/1777434427661881368

[brucejoel99]

Cannon deprives Smith of a potential mandamus vehicle:

https://twitter.com/alanfeuer/status/1777820107743375475https://twitter.com/alanfeuer/status/1777821324888383914

[brucejoel99]

https://twitter.com/kaitlancollins/status/1778592089560809570

[brucejoel99]

https://twitter.com/annabower/status/1779255500959347067https://twitter.com/annabower/status/1779259169284960284

[emailking]

I wonder if asking for too many delays could work against him at some point, in the sense that it could allow the J6 trial to slot in (if SCOTUS issues a speedy denial) and prevent Cannon from blocking out the calendar as some have suggested is her strategy.

[brucejoel99]

https://twitter.com/annabower/status/1779255500959347067
https://twitter.com/annabower/status/1779259169284960284

https://twitter.com/BradMossEsq/status/1779678514288922865

[emailking]

Yeah I remember there was that whole delay when he and Nauta needed to get local counsel per 11th Circuit rules. Well, he's got them lol. They're there for a reason!