As is obvious, I can’t speak to what other venues do other than where I worked in California. But I never saw any judge ask for jury instructions even before pretrial motions had been heard and ruled on, and certainly not directing one party to submit jury instructions that are clearly so adverse to their case.
Cannon is a complete tool, so far as I can tell.
Responding to myself to update the options. I don’t think option 3 - refiling the same case “in whole” using a US attorney would work, and likely some of the obstruction charges.
The ruling effectively says that all the work that has been done since Jack was put on the case in 2022 is invalid/can’t use it (like fruit of the poisonous tree concept). I believe important evidence was gathered after Jack was put on the case. Here is a snippet of that language from the Order (I edited it some to read easier):
…the appropriate remedy is invalidation of the [Jack’s] acts. Since November 2022, Special Counsel Smith has been exercising “power that [he] did not lawfully possess.” All actions that flowed from his defective appointment—including his seeking of the Superseding Indictment on which this proceeding currently hinges were unlawful exercises of executive power.
So, if you leave the ruling standing, you won’t be able to file the same case without also doing a lot of legwork to get that evidence back again “clean” (more witness interviews, subpoena docs, etc. etc.).
Anyways, Jack has said he will appeal so it’s moot. Not sure if he’s also going to ask for Cannon’s removal.
At this point, is there any chance that he doesn’t?
Assuming this is not rhetorical, I’d say there is a meaningful chance Jack does not ask for her removal.
We can probably break it down into two parts: Tactical and Legal. I’ll just focus on the legal.
Legally, it’s very hard. You can’t get her removed just because she’s an awful Judge. So far, it mostly looks like she’s a bad Judge - terrible legal analysis and all that. She has not said out loud or in writing the things I’m sure we all know she’s thinking (e.g., you shouldn’t have charged him; Trump did nothing wrong; This is a witch hunt; etc. ect. - commentary on the legal proceedings that bias one side over the other). Those are the things that get Judge’s removed. Not bad rulings/legal analysis. I mean, she used brand new law from the Supreme Court in her ruling that did not exist when all the other previous Courts upheld Special Prosecutors as valid (Cannon’s use was tortured, but my point is it was new and stated Special Prosecutors are invalid)…ie, a bad ruling.
So, legally, I don’t think it’s a sure thing and but I honestly can’t really know how likely or unlikely. I’ve seen smart people say there’s enough to remove her, and others saying it’s hard/won’t happen.
Late: I’ll add, this isn’t obviously about one bad ruling, but over a series of the entire case. I don’t think the special master case debacle gets to come into play. Even still, the totality can look very damning and gives reason to think Jack can and will ask for her removal. I’m just not sure if a series of bad legal rulings is legally enough. And yet personally, I think Jack should do it - it’s the least bad option.
Appeal has been filed.
Edit: Actually it is a notice that he will appeal.
Smith’s office filed a notice saying it would appeal Florida-based U.S. District Judge Aileen Cannon’s ruling tossing out the 40 charges Trump faced to the 11th Circuit Court of Appeals.
I am picturing her coming into the judge’s lunchroom with her tray, sitting at a table with her colleagues, and they all pick up and move to another table.
For the rest of her life.
That or she doesn’t get to eat in the lunchroom any more 'cause she’s been impeached.
“Stare decision? What’s that?”
It’s when all the other judges stare at you until you realize what a complete tool you are.
Couple thoughts on the decision, as I didn’t get it quite right up-thread. I’ll explain her ruling, and Jack’s response to it.
Cannon, correctly, says for there to be a Special Counsel you need one of two things:
President Appoints (and Senate Confirms). This can be done at any time for any reasons. President has the power to do it. President did not do it here with Jack. (I thought this was the sole reason in my posts above).
Congress makes a law creating a special counsel. Cannon says this was not done.
Jack’s response* is see 28 U.S. Code § 515 - Authority for legal proceedings; commission, oath, and salary for special attorneys, which states, …any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal…and later states…Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney,…You know, a law on point that allow the AG to appoint a Special Counsel.
Cannon’s response to that is a lot of other nonsense that is not worth reading. For example, Cannon quibbles with the word “retained”. Meaning, this law would only apply to special counsels retained before the law was passed - it’s past tense. Instead of how everyone else in the world uses that word (I just retained an attorney right now) and how it’s used in that law - retain the attorney first, once done, they take the oath.
She does try, a lot, to inoculate herself. For example, saying this is a matter of first impression in the 11th Circuit (it is), but that doesn’t mean you ignore the other precedent and instead use extremely twisted logic to undo the Special Counsel.
Lastly, she also brings up the special counsel is not valid due to appropriation reasons, but says that part is moot because she is dismissing for other reasons. However, I think this will have to be addressed on appeal since it was part of her reasoning.
*Jack’s response is obviously much more detailed. The point is she says there is no law, Jack says you’re so stupid.
Lastly, and not related to the ruling, but this case is dead. It’s over. He is not charged with espionage or obstruction. That’s what a full dismissal means. A court has to revive it. It’s dead because Jack is not legitimate and he should never have been allowed to bring this case. That’s a fair version of what just happened with the dismissal ruling.
Trump can now point to this tangible real thing to corroborate the witch hunt, certainly the other case Jack brought. I don’t think it will be undone anytime soon (months). It takes the bite out of his criminal charges at the perfect time.
I have absolutely no doubt this was done solely for political reasons, and a real judge should be above that.
But aren’t 99.999% of federal charges prosecuted without a special counsel? Or would the DOJ have to basically start over (assuming the decision holds)?
Yes, most federal criminal charges do not involve special prosecutors. I just meant “Jack’s” case is dead and there are currently no charges against Trump.
If the ruling is upheld, it would go to the Supreme Court because you’d have a split among the appellate courts over whether the special counsel law is constitutional or not (I think DC Cir and 11th). If it goes there, lord knows what they’ll do with it (ie, make it worse).
That aside, if DOJ wanted to pursue the charges with this ruling in place, they theoretically could. They would just file with a Florida US attorney (like the 99.99999% of federal charges are brought). But, as I mentioned upthread, yea DOJ would have to start over in a sense (from when Jack was appointed in 2022; the events happened in 2021 up through at least 2023). They would have to redo all the evidence Jack discovered since coming on board since Jack role is invalid and the evidence he discovered would also be invalid/can’t use it (per the ruling). I don’t imagine that would be easy, but I suppose doable.
Does it make a difference that the evidence was probably discovered by investigators working for the special prosecutor, not himself?
I would doubt it, but I don’t know.
For example, if the FBI discovered something and gave it to Jack’s team, what about that evidence. Seems to have been discovered “clean” by the FBI / outside Special Counsel team. I don’t know.
But certainly any grand jury testimony, statements to prosecutors, etc. is lost. There is plenty of that.
As usual, the YouTube channel LegalEagle does a great job spelling out the issues (and completely wrecks Cannon’s decision):
I was shocked that Devin used images of Judge Cannon with the headgear and face paint of the QAnon Shaman superimposed. This is so bad that Devin is beyond giving a bleep.
Well, CoolHandCox, what is your take on LegalEagle’s analysis?
It covers all the issues well. Essentially it just boils down to is there a law that allows the AG to appoint a special counsel. Jack (and everyone else) says Yes since 1999, and in different forms for decades before that.
Cannon (and J. Thomas) say No, both in 2024.
Gotcha. I badly mis-read one of your prior posts and thought that you were agreeing with her ruling in some respect. Apologies.
Garland Pushes Back On Judge’s Decision To Dismiss Trump’s Classified Documents Case
“For more than 20 years, I was a federal judge. Do I look like somebody who would make that basic mistake about the law? I don’t think so,” he said.
Cannon does though.