Amici calling for the 11th Circuit to remove Aileen Cannon from docs case

The first brief was filed on behalf of the Citizens for Responsibility and Ethics in Washington (CREW), and focuses solely on the removal of Judge Cannon. The second brief was filed on behalf of 18 people and entities including George Conway, Olivia Troye, and Laurence Tribe, and focuses both on her removal and reversing her ruling dismissing the case on the grounds that the Special Counsel was appointed and funded inappropriately.

[...]

In addition to her being reversed twice already, the Amici argue two other controversies that illustrate her inability to be unbiased in the case: The Jury Instruction Controversy, and the Undue Delay Controversy.

The Jury Instruction Controversy was that crazy time she asked both parties to write jury instructions as though the Presidential Records Act actually gave Donald the ability categorize records as either personal or presidential. First, that’s not what the Presidential Records Act says, and second - even if some unsmart person thought it did say that - the PRA has nothing to do with this case. In the Special Master debacle, the 11th Circuit ruled that the classified documents belong to the government and aren’t associated with the PRA.

[...]

They then go on to outline her ridiculous docket, and how multiple pre-trial motions languished on the docket for months, while she held unnecessary hearings, oral arguments, and failed to delegate some of the easier motions to magistrate judges. What they don’t mention is her secret docket - where she added unnecessary time to the docket by requiring the parties to first submit recommended redactions to pre-trial briefings so those could be litigated before they filed them on the public docket.


[...]

They do point out that even though she moved at a glacial pace on pretrial motions, she moved with alacrity on dismissal, waiting only two weeks after Justice Thomas made his off-hand, non-sequitur remarks on the appointment and funding of Jack Smith in his immunity concurrence that literally no one asked for.
  

...but hey, do what you want...you will anyway.

UPDATE 09/17/2024:

CREW amicus

A watchdog group is asking the 11th Circuit Court of Appeals to remove Judge Aileen Cannon from overseeing former President Trump’s classified documents case.

[...]

The CREW brief asks for the documents case to be reassigned to another jurist in South Florida. Smith did not make that request, but the 11th Circuit could independently determine the rare move is warranted.

“Even before she dismissed this case on novel and insupportable grounds that ignored both statutory authority and Supreme Court precedent, Judge Cannon’s other extraordinary rulings and sluggish administration of the case had provoked well-founded concerns that she might be biased against the Government’s case and unable to manage that case impartially,” CREW wrote in its motion to file a friend-of-the-court brief filed late Tuesday.

[...]

“If the Court reverses Judge Aileen M. Cannon’s ruling in this matter, it will be the third time in under three years that it has had to do so in a seemingly straightforward case about a former president’s unauthorized possession of government documents,” CREW wrote.

“But citing the mere number and frequency of reversals does not fully capture the problem; for some of Judge Cannon’s rulings have been so unprecedented that affirming them would, in this Court’s words, ‘violate bedrock separation-of-powers limitations.’”

  The Hill

The brief

Mar-A-Lago documents case on appeal

Did Lindsey Graham EVER have any credibility?

...but hey, do what you want...you will anyway.

The never-ending case

...but hey, do what you want...you will anyway.

Don't expect SCOTUS opinions today to lift your mood

And in a terrible blow to the country and obvious grab for judicial power, the Court has ditched the Chevron doctrine - from the case decided over 40 years ago that permitted federal agencies, with their policy experts, to make decisions which the Court, with no experts, should defer to.

This Court session may well go down in history as the biggest travesty - and tragedy (see what I did there?) in our history.

And to round it off, they've given the January 6th defendants a helping hand.

No Jackson dissent?  That's interesting, and I'm sure she has good reason, but I am just too despondent from last night's debate and today's SCOTUS rulings to try to find it out.

Good luck, America.

UPDATE 09:57 am:  For all of you who had Trump immunity decision the last possible date in your office pool, you win.

UPDATE 01:02 pm:

No doubt, the Supreme Court’s decision deals a soft blow to the government’s use of the (c)(2) provision of Section 1512. Section 1512(c) prohibits corruptly obstructing an official proceeding in two ways: first, under subsection (c)(1), by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding, and second, under subsection (c)(2), by “otherwise” obstructing, influencing, or impeding an official proceeding. Rather than apply what the U.S. Solicitor General described as the plain meaning of the word “otherwise” to other means of obstructing the proceeding, such as by violently attacking the joint session of congress to count the electoral ballots–a plain meaning with which Justices Barrett, Sotomayor, and Kagan generally concurred in dissent–the Court held that the obstruction barred by (c)(2) must be tied to impairing the integrity or availability of evidence.

[...]

Assessing the impact of this decision needs to be done dispassionately and with nuance. The upshot is that the decision means little in terms of the pending charges against former President Donald Trump. It means potentially more to a subset of the January 6th defendants who were charged under this statute, who comprise only a fraction – 24% – of the existing January 6th defendants. And even within that 24%, in the great majority of cases that have resulted in a guilty verdict (by plea or after trial) for a 1512(c)(2) offense, the defendant was also found guilty of one or more other felonies (62%). Further, as to the 71 defendants who have been charged under Section 1512(c)(2) and are still awaiting trial, all of them are charged with crimes in addition to 1512(c)(2), and a majority are charged with one or more other felonies.

  Just Security

Continue reading.

UPDATE 03:56 pm:

Good grief

...but hey, do what you want...you will anyway.

So tiresome

I have to say, though, Judge Cannon is so inept and out of her depth that if she DOESN'T hold all these bullshit hearings, she will go unnoticed in history.  This way, she'll at least have fame.

...but hey, do what you want...you will anyway.

Cannon walking the edge

She doesn't want to get slapped down by the 11th Circuit again.

[Trump's lawyers] contended the [Mar-A-Lago search] warrant was unconstitutionally vague and the FBI affidavit, used to convince the magistrate judge to find there was probable cause for a crime at the club, contained contextual omissions.

[...]

[In a hearing today,] Aileen Cannon suggested she considered the warrant was sufficiently specific about what items FBI agents could seize at Mar-a-Lago, and told Trump’s lawyers the omissions would have made no difference on whether there was probable cause.

[...]

The attempt by Trump to suppress the Mar-a-Lago evidence came through a request for a Franks hearing, where a judge applies a four-part test to decide whether false or misleading statements in the affidavit meant the evidence obtained through that search needed to be suppressed.

[...]

The evidence Trump’s lawyers presented was limited to complaints that the FBI agent omitted the fact that some top FBI officials preferred a consensual search of Mar-a-Lago, the FBI tying the need for a warrant to the National Archives, and Trump did not need a security clearance as president.

[...]

Trump’s request was ambitious because the legal threshold to get a Franks hearing is onerous. Trump needed to make a “substantial preliminary showing” that the affidavit had parts that were recklessly false.

  The Guardian

But he got his hearing, didn't he?

Cannon's ruling doesn't mean a lot. Other than that she can stay on the case and help Trump in all her other many ways. Like granting a Franks hearing on bullshit claims.*

And...

[On Tuesday morning, at a sealed hearing, Trump asked Cannon] to revoke prosecutors’ access to memos made by his ex-lawyer [Evan Corcoran] that became key evidence of his efforts to obstruct the investigation.

[...]

The sweeping request could have far-reaching consequences since the memos – with, for example, Trump asking whether they could ignore the subpoena, or a later suggestion to “pluck” out some classified documents instead of returning them to the FBI – are the strongest evidence of Trump’s obstructive intent.

Even if the judge excludes only some of the passages, it could dramatically undercut the strength of the obstruction case.

In the worst case for prosecutors, their evidence of Trump’s obstructive intent could be reduced to CCTV footage of boxes being moved at Mar-a-Lago by his co-defendants Walt Nauta and Carlos De Oliveira, logs of Trump’s calls with Nauta, and testimony about Nauta’s movements.

Trump faces a struggle to get Cannon to overturn the initial ruling by the then chief US district judge Beryl Howell in Washington DC. But Cannon has previously ruled for Trump on evidentiary disputes, most recently removing a paragraph in the indictment about Trump waving around a classified map.

  The Guardian

I doubt it's much of a struggle.

The original thinking on Trump’s legal team was to concede that some of the memos could conceivably be subject to the crime-fraud exception, such as when Corcoran told Trump he would be searching the storage room, and Corcoran’s confirmation about when he intended to return to Mar-a-Lago.

Trump’s lawyers have since rejected that approach, reasoning that any concession could give the judge an off-ramp to wholly deny their request, whereas asking for all the memos to be struck would be a stronger argument and lead the judge to strike even some of the memos.

She'll do her best to help them out.

...but hey, do what you want...you will anyway.

*UPDATE 06/27/2024:  It seems Trump DIDN'T get the Franks hearing.  I misunderstood.

Meanwhile, in more Cannonigans*...

...but hey, do what you want...you will anyway.

*Coined by Andy McCabe.

UPDATE 06/12/2024:

She's been watching Trump/MAGA reaction to Trump's Manhattan trial and verdict in which they cry about the fact that the jury was allowed to individually choose among three means of committing the crime to come to their unanimous guilty verdict.  

She won't be allowed to let this "requirement" stand.

Cannon makes a decision!

In the end, it won't matter if he's elected. And she's doing her best to get him there.

...but hey, do what you want...you will anyway.

UPDATE 06/11/2024:

Special counsel files a new motion

Following Trump's incredible and outrageous claim that the FBI (at Biden's behest) tried to assassinate him.

Jack Smith opens with The Government moves to modify defendant Donald J. Trump’s conditions of release, to make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.

He then informs the court that he met and conferred with Trump’s lawyers, who oppose his motion, and also said they object to the timing - seeing as it’s a holiday weekend.

[...]

Jack Smith goes on to say Those statements create a grossly misleading impression about the intentions and conduct of federal law enforcement agents—falsely suggesting that they were complicit in a plot to assassinate him—and expose those agents, some of whom will be witnesses at trial, to the risk of threats, violence, and harassment. The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

[...]

As Trump is well aware, the FBI took extraordinary care to execute the search warrant unobtrusively and without needless confrontation: they scheduled the search of Mar-a-Lago for a time when he and his family would be away; they planned to coordinate with Trump’s attorney, Secret Service agents, and Mar-a-Lago staff before and during the execution of the warrant; and they planned for contingencies—which, in fact, never came to pass—about with whom to communicate if Trump were to arrive on the scene.

As part of this planning, the FBI used a form that contains standard and unobjectionable language setting out the Department of Justice’s use-of-force policy, which prohibits the use of deadly force except “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” The inclusion of that policy is routine practice to restrict the use of force, and it is attached to countless warrants across the country.

Trump, however, has distorted the standard inclusion of the policy limiting the use of deadly force by mischaracterizing it as a claim that the FBI “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.”

[...]

A condition of release that prohibits the defendant from making statements posing a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case is warranted and necessary here. Such a prohibition will also minimize further prejudice caused by the defendant directing false and inflammatory messages regarding the facts of this case to potential jurors who may be summoned by the Court for jury service in this matter.

[...]

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission.

  Mueller, She Wrote

...but hey, do what you want...you will anyway.

And there it is

...but hey, do what you want...you will anyway.

UPDATE 05/08/2024:

And it says "partial".

UPDATE 05/13/2024:

Meanwhile in Florida

Just as well simply dismiss the case.  Which she may do in the end.

...but hey, do what you want...you will anyway.

Smith team misstep

Special counsel Jack Smith’s team acknowledged Friday that some evidence in the prosecution of former President Donald Trump for hoarding classified documents at his Florida home may not be in the same sequence FBI agents found it when they swept into the Mar-a-Lago compound with a search warrant in August 2022.

The concession from prosecutors in a court filing Friday afternoon came after attorneys for one of Trump’s co-defendants asked for a delay in the case because the defense lawyers were having trouble determining precisely where particular documents had come from in the 33 boxes the FBI seized almost two years ago.

In their filing, prosecutors acknowledged the government had previously — and incorrectly — told U.S. District Judge Aileen Cannon that the boxes remained “in their original, intact form as seized,” other than a decision to replace classified documents with placeholder sheets.

[...]

“There are some boxes where the order of items within that box is not the same as in the associated scans,” prosecutors wrote.

[...]

Prosecutors claim the discrepancies in the sequence of the records is of no significance to the criminal case filed in June 2023. Smith’s lawyers say the apparent jumble took place despite various precautions, including having an FBI agent present while an outside vendor scanned the documents so that Trump’s attorneys could see what was seized.

[...]

[Also], the boxes contain items smaller than standard paper such as index cards, books, and stationary [sic], which shift easily when the boxes are carried, especially because many of the boxes are not full,” prosecutors Jay Bratt, Julie Edelstein and David Harbach wrote.

[...]

Prosecutors say despite the reordering, each box still contains precisely the same material it had in it when it was seized.

  

Doesn't matter. This will be seized upon by Trump and Cannon both to further denigrate the case against Trump.

“The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized,” the prosecutors wrote.

Later, they said, the handwritten notes were replaced with more formal placeholder sheets, but some of the handwritten ones may have been left in the boxes as well, complicating efforts to link a placeholder to a specific classified document.

[...]

In a post on his Trump Social site Friday, Trump painted the disclosures at catastrophic for the government’s case.

Of course he did.

Smith “and his team committed blatant Evidence Tampering by mishandling the very Boxes they used as a pretext to bring this Fake Case,” Trump said, accusing prosecutors of “deeply illegal” actions that should trigger dismissal of all charges.

...but hey, do what you want...you will anyway.

UPDATE 05/07/2024:

Meanwhile in the documents case

Former President Trump brushed off warnings he could be charged for keeping classified documents at his Mar-a-Lago residence, promising to pardon one of his now co-defendants if charges were filed, according to new court documents.

[...]

The witness, identified only at Person 16 in the documents, told Trump he should cooperate with federal investigators looking for classified documents, saying doing so could prevent him from being indicted.

“Whatever you have, give everything back. Let them come here and get everything,” the witness said they told Trump. “Don’t give them a noble reason to indict you, because they will.”

But Trump seemed unphased.

[...]

The witness refused to have their conversation with the FBI recorded out of fear of reprisal.

[...]

The interview counters a defense from Trump that there was a standard order to declassify anything the former president had, with the witness saying they heard that for the first time only after Trump was facing charges.

The witness said they urged Trump multiple times to return the records being sought then by the National Archives, telling Trump something to the effect of it “was not worth all that aggravation.”

The witness also said they had urged Trump’s children to give him the same warning.

[...]

The witness said Nauta was told by those close to Trump that the documents case was politically motivated and “much ado about nothing” and that even if he faced charges for lying to the bureau, Trump would pardon him in 2024.

  The Hill

...but hey, do what you want...you will anyway.

UPDATE 04/24/2024:

Balancing act

UPDATE 04/05/2024: