Judge Cannon Pops Off
By: Andrew Torrez
S E E D E D C O N T E N T
As we always knew she would.
Andrew Torrez and Liz DyeMay 09, 202434Share this postCopy linkFacebookEmailNoteOther3Share
Yesterday, Judge Aileen Cannon made it official: Donald Trump will not stand trial for stealing government documents before the 2024 election.
After squatting on the calendar for months, conveniently ensuring that no other Trump criminal case could be scheduled for the summer, Trump's concierge judge finally removed the May 20 trial date from her docket and rescheduled it for never. Citing the backlog of pending motions she herself had allowed to pile up, along with the mountain of garbage pleadings filed by Trump and his co-defendants Walt Nauta and Carlos De Oliveira, the court harrumphed that "finalization of a trial date at this juncture" would be "imprudent and inconsistent with the Court's duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury."
It was a remarkably craven order, although certainly not a surprise after watching Judge Cannon engineer this slow-motion crash since the case was assigned to her in June of 2023. She is, after all, exactly the same person who got ruthlessly slapped down by her conservative colleagues on the Eleventh Circuit when she attempted to beat the special counsel's investigation to death with her gavel back in 2022, before he could even be indicted.
CIPA? Never met her!
Trump is charged with stealing documents relating to the national defense and refusing to give them back, in violation of 18 U.S.C. § 793(e), AKA the Espionage Act. Although it is not an element of the charges, many of those documents are marked as classified.
In the normal order of things, evidence at trial is public, or at least shown to the jury. But in 1980, Congress enacted the Classified Information Procedures Act (CIPA), codifying procedures to regulate the use of classified evidence at trial so that prosecutors wouldn't have to choose between publishing national security secrets or dropping a case.
Judge Cannon, who has very little experience with CIPA, has made much of the fact that this case deals with classified evidence. She required a full briefing and oral argument to decide that Trump could only examine highly classified evidence in a SCIF, rather than his preferred workspace on the lanai at Mar-a-Lago. And it took her four whole months to decide that Nauta and De Oliveira don't need to see the highly classified documents their boss stole to defend themselves against charges of obstruction.
Since November, Judge Cannon has been engineering a bottleneck with respect to CIPA § 5(a), which requires defendants to specify which classified documents they intend to introduce at trial (and thereby show the jury), so that the government can object or propose non-confidential alternatives. Under the original scheduling order, Trump and his co-defendants were supposed to make those disclosures on November 15. But on November 3, Judge Cannon stayed all the deadlines and said they'd have a new scheduling conference on March 1. She eventually set a § 5(a) deadline for May 9, only to stay it again when Trump came back whining that he's too busy with the false business records trial in New York to finish his homework in Florida.
This delay is especially egregious because the seized evidence contains just 77 documents total that bear classification markings, only 32 of which form the basis for the charges against Trump under the Espionage Act. Meaning that Trump wrangled himself ten months to examine 77 documents and make an up-or-down determination of whether he intends to rely on them as part of his defense.
Reviewing fewer than eight documents per month is pretty leisurely work, even for Trump's lawyers. But counsel for co-defendants Walt Nauta and Carlos de Olivera appear to have been absolutely slothful.
On May 1, Stan Woodward, the attorney supplied to Walt Nauta's courtesy of Trump's PAC, filed a motion to delay the CIPA § 5(a) deadline even further, so that Nauta would have time to specify which classified documents he would like to use at trial in his defense. This provoked some side eye, since Nauta is charged with conspiracy to obstruct justice to cover up his boss's theft of government documents, and so the actual content of the documents is irrelevant. In plain English, the jury doesn't need to know whether the boxes contained nuclear launch codes or menus from the White House mess. The only issue is whether he and De Oliveira lied to the FBI about moving them and then trying to delete the security camera footage of them doing it. The number of classified documents which Nauta and de Olivera will likely rely on for their defense is almost certainly zero.
But Stan Woodward is a creative guy, so he argued that his client couldn't possibly disclose the nothing on which he intends to rely within the ten-month deadline set by the Court because the documents produced by the Department of Justice are not "in the same order" as when they were when initially boxed up by the FBI as it executed the search warrant at Mar-a-Lago in August of 2022.
That the documents show signs of having been rifled through is hardly surprising. After all, it was Nauta's co-defendant, Donald Trump who marched into Aileen Cannon's courthouse back in 2022 and persuaded her appoint Judge Raymond Dearie as special master to conduct a privilege review to prevent the Justice Department from seeing the documents he'd stolen. That blatantly illegal outing was cut short by the 11th Circuit in December of 2022, but not before Judge Dearie prepared an index of of the documents reflecting the order they were collected.
Nauta says he can't comply with § 5(a) until the government produces the evidence to him in the exact same order as it appears on Judge Dearie's list. The special counsel's office filed an opposition noting that "where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta's ability to file a CIPA Section 5 notice." (Like, seriously, SHUT UP, STAN, they did not add.)
But then things went totally off the rails, because in that opposition, Jack Smith conceded that not everything was produced in discovery in the exact same order as when it was seized back in 2022, mostly because many of the boxes weren't full, and they contained "items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried."
Immediately afterwards, Trump's lawyer Todd Blanche fired off a pissy letter to the Special Counsel's office baselessly accusing the line prosecutors of failing to display even "minimal levels of professionalism and competence" as part of their "futile efforts to help President Biden make up lost ground in the polls." The basis for this incendiary claim is the (wrong) assertion that the Special Counsel's Office spoliated evidence and then lied to the court about it.
Spoliation is when one party either negligently or deliberately destroys relevant evidence. It is a very serious charge. Blanche claims that the government should be sanctioned for failing to "maintain the sequence of the documents within the boxes at the time they were collected."
That's crazy.
First, the undisputed evidence is that prosecutors didn't spoliate the evidence of the sequence of the documents. Instead, they turned over Special Master Dearie's index, which all parties agree is the best evidence of the original order of the documents when they were collected. There is nothing to stop Blanche from putting the documents in that order and establishing the "exculpatory information relating to, inter alia, the complete absence of culpable criminal intent by President Trump" that he screamed about in his little nastygram.
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Second, even if the government had spoliated evidence of the original "sequence" —say, by destroying the index — that would be of no moment. No law or case anywhere requires the government to preserve such evidence, or even suggests that such evidence would be relevant to any defendant's right to potentially exculpatory information from the prosecution. In support of his demand for sanctions, Blance points to a footnote in the Supreme Court's 1995 decision in Kyles v. Whitley, 514 U.S. 419. But Kyles has nothing to do with the sequence of documentary evidence — the prosecutors in that case failed to disclose that the police had also interviewed another potential suspect. And these two things are not the same.
But allowing Trump's lawyers to fling around baseless allegations of prosecutorial misconduct is yet another way that Judge Cannon helps Trump thwart justice. Because other judges don't put up with this shit.
Conniving Connivers' Connivance
Perhaps the best way to highlight Judge Cannon's outrageous behavior is to compare it to what happens when Trump's lawyers try this nonsense in other courtrooms.
On March 8, on the eve of the first scheduled trial date, Blanche alleged that the District Attorney of New York had committed misconduct by failing to browbeat the Justice Department into disclosing evidence in timely fashion. Justice Juan Merchan granted a 30-day delay, but scheduled a hearing within two weeks, and ordering Blanche to put up or shut up. But of course there was nothing to put up.
"You're literally accusing the Manhattan DA's Office and the people assigned to this case of engaging in prosecutorial misconduct and of trying to make me complacent in it. And you don't have a single cite to support that position?" he scolded, excoriating Blanche for lobbing false misconduct allegations. The judge announced his decision from the bench a mere 45 minutes later, setting the trial for April 15.
Similarly, when Blanche spammed the docket with frivolous press releases disguised as legal motions, Justice Merchan ordered the parties to stop filing anything without permission of the court. And when Blanche tried to argue that Trump hadn't violated the gag order by quote-posting other people's attacks on witnesses and jurors, Justice Merchan shut him down with a warning that he was "losing all credibility" with the court.
But in Judge Cannon's courtroom, Blanche can file a raft of duplicative motions, leveling the most incendiary allegations, safe in the knowledge that he'll never face so much as a scolding. Indeed, even if he loses, he'll be able to extract weeks of delay as the judge treats every frivolous pleading as if it presents a serious legal question requiring multiple rounds of briefing and a lengthy oral argument.
But Judge Cannon's in-kind contributions to the Trump campaign go beyond just delaying the trial. By dignifying his bad faith misconduct allegations with judicial consideration, she allows Trump to launder his baseless claims into the news cycle.
So on May 3rd, Trump accused the special counsel of "blatant evidence tampering" based on the "out of order" documents:
Then disgraced former Hill editor John Solomon breathlessly reported that Jack Smith and his team, in a "stunning admission," had "altered or manipulated evidence" in the documents case, "misled the court" about it, and that it would "be a serious problem for prosecutors."
Which is horseshit! But the longer Judge Cannon takes to rule, and the more time she devotes to it, the more she lends her own judicial gravamen to the preposterous Trump campaign fiction that Jack Smith is a "deranged" prosecutor bringing a baseless case to derail Trump's election prospects with WITCH HUNT BOXES HOAXES.
Come on, Aileen
In 1973, Richard Nixon stood at a podium in Walt Disney World and defended his innocence.
"People have got to know whether or not their president is a crook," he snarled. "Well, I'm not a crook."
But of course, he was a crook, and he resigned in disgrace less than a year later.
Nixon was half right, though. Because the people have got to know whether their president is a crook. But thanks to Judge Aileen Cannon, who managed to delay the indictment itself and has now postponed the trial indefinitely, the people will go to the polls without some very important information. And, worse still, the judge has lent credence to Trump's claim that the prosecutor coming after him is the real crook.
Kind of like she planned to do this all along, huh?
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Judge Cannon is in the unique position of ruling against Trump (rare but it has happened) yet is praised by Trump after that ruling.
Bought and paid for like ginni, I mean clarence
Tell your fucking special prosecutor to follow the damn laws for handling classified information Democrats and this won't be an issue.
The hypocrisy Smith and the Democrats are showing is galling.
Sorry, not all judges are loyal Democrats that shit on the Constitution and Law like Merchan to get a predetermined verdict.
Do you think the FBI should be held accountable for their wrongdoing?
I think we both know radicals think that only applies to Trump.
at the risk of injecting truth and common sense where it is not wanted , read this
Cannon is an incompetent tool and a disgrace to the legal profession. She's not even capable of deciding a few motions before her. It seems she is auditioning to join Harlan Crow sponsored luxury tours with Clarence Thomas.
But how dare anyone criticize the brilliant Judge Merchen the Biden donor who's allowing Trump to be tried for charges that haven't even been disclosed to him.
The Trump lawyer's claim seems to be that if the documents were in the right order they would exculpate him. So why doesnt he take the Special Masters list and put them in the right order?
It is very obvious that Trump's defense, and perhaps his only defense, is to try and make sure these matters never go to trial.
Oh my God, Judge Merchan donated $15 to the Biden campaign! Do you think he should be impeached?
The charges were under seal until Trump was arraigned.
That is not true according to my understanding. All charges in the indictment have been disclosed. The contention is that the prosecution has not identified who Trump intended to defraud by falsifying business records, which is a predicate to the felony. Whether or not that is somehow improper, or even the actual posture of the case at this time, is not something I can address now.
Is this another New York crime where there is no victim?
[✘] e charges were under seal until Trump was arraigned
As Snuffy points out, the second mystery charge is not in the indictment. The only charge in the indictment is falsifying business records.
I'm not a lawyer so I don't understand how they are able to do this. In the indictments, they charge 34 counts of falsifying business records in the first degree which is a felony. However, to make the first degree it must be where the person has committed the crime of falsifying business records in the second degree (which is still a misdemeanor) and when his intent to defraud includes another crime or to aid or conceal the commission of the other crime.
My question is, doesn't that second crime need to be listed in the indictment? Just thinking of due process, how can a defendant properly prep for a defense if they don't know what all the charges are? All of this indicates to me that the prosecution must also prove intent of Trump and that seems like a really hard bridge to cross.
What is your source for the idea that there is a "second crime" not listed in the indictment?
All 34 indictments are the same, a charge of falsifying business records in the first degree.
Each indictment contains the same words, 'with intent to defraud and intent to commit another crime and aid and conceal the commission thereof'. It doesn't state defraud or intent, it's defraud and intent.
The only "other" crime that I've heard of was to defraud the 2016 election.
But that's not articulated in court that I'm aware of. And in order to elevate the falsifying business records to a first degree charge which is a felony, there must be a second crime because of how I read the law. I'll highlight below for what I am saying.
Because there's no mention of any further criminal action charged, I don't understand how they are able to elevate the 34 charges to 'First Degree' status. It could be they are trying to allege that Trump intended to commit a violation of New York election law related to a conspiracy to promote or prevent an election, but they didn't charge him with anything like that. Are they hoping that if they infer hard enough the jury will just go along? As Hope Hicks testified that she didn't believe that Trump was specifically concerned about how the story might impact his presidential campaign, but more concerned about how it would be viewed by his wife, doesn't that put a big hurt on the angle of intent that the prosecution is trying for?
I'll defer to G-squared's expertise, which he has
I am not sure facts matter any longer in this case.
Without getting into a lot of details, this seems to be the explanation:
I'm not particularly interested in reading the full indictment now to look into it any further.
I don't believe that is entirely accurate. According to reports about her trial testimony, Trump discussed both and that his concern over the impact on the election was significant.
Not in the indictment.
What are the pertinent New York pleading requirements? If you contend that the indictment is legally insufficient, cite the specific statutes, rules, and/or case law that supports your position.
Start with the fifth amendment.
Thanks for the info. I don't agree with it all because of my understanding which I'll admit is not at the level of a lawyer.
There's no mention of any of this in the indictments. It just seems to me that the prosecution is throwing as much dirt & slime (have to admit, Trump does bring enough of that to the table) in hopes that it sways the jury. But without a clear indication of any second crime, I do not understand how they can elevate the falsifying business records to a felony. Wouldn't any instructions to the jury need to be clear on this?
As far as Hope Hicks, guess we'll have to wait for the after-trial interviews with jurists (which due to the nature and attention of the trial I feel confident we'll see) to understand just how that all played out. I can understand the concern Trump would have about how this news would play out for an election, after all he was in the middle of the campaign. But reading your link I still feel like there was more concern about how it would play for his family vs how it would play out for the campaign. Seems that's enough to bring in some reasonable doubt in the minds of jurists.
Why haven't the defendant's attorneys moved for a dismissal of the indictment or any counts of the indictment based on violation of procedural due process?
I would think so. The jury is not usually instructed until the parties have rested, that is, finished presenting their evidence.
Because of security concerns, I think it is unlikely that any of the jurors will agree to post-trial interviews. It is possible, of course.
The jurors can believe that Trump was motivated for both reasons and still find him guilty. In other words, his motivation didn't need to be exclusively to benefit his election efforts for a criminal conviction. Based on the trial testimony I am aware of it seems that election concerns was a far greater motivating factor.
Yup, bought and paid for just like ginni, I mean clarence
"Yesterday, Judge Aileen Cannon made it official: Donald Trump will not stand trial for stealing government documents before the 2024 election."
There is no credible evidence that Trump "stole" any documents. Did Biden steal the classified documents found haphazardly stored in various unsecured places?
"the judge has lent credence to Trump's claim that the prosecutor coming after him is the real crook."
That's looking more and more likely to be true. Merchan should be kicked off the bench.
Mechan is not a judge in the documents case.
I know that. Cannon is the only one upholding the law
Based on all appearances, Cannon is a total incompetent and incapable of upholding the law.
A legal system that has become a laughing stock, an educational system that is proven to have failed, and a grossly divisive government that contributes little benefit - change that tune from God Bless America to God HELP America.
Yep, an educational system which turns out people lacking the critical thinking skills to even acknowledge or recognize that voting for the lesser of 2 evils is silly, stupid, unpatriotic and bad for the country.
Yep, we got exactly what people unwittingly vote for.
It's a damn shame.
The only way you can justify voting for the lesser of 2 evils is if there were only 2 choices. amazingly enough my ballot has more that 2 choices. anybody who says that only trump or biden can win is the problem and NOT the solution.
I know. Nothing will change if people just accept whoever the nominee from their preferred party is.
I am actually glad i am getting so old, i won't have to endure the stupidity for too many more years.
I'm pretty old too, but I worry about the present safety and future of my grandchildren who are in Wisconsin.