I am not disagreeing, I like to think the best of people. But a blog I occasionally read had below sent to them from a lawyer. Do you think there is something to her not actually ruling against Trump, just saying she isn't going to rule on it until the trial? That if she rules the PRA protects Trump and gives a directed verdict, there is no recourse for the prosecution even if the Supremes and Appeals court would disagree. Were her rulings that these things have to be decided in the trial and not before consistent with most other cases?
I've dug into the Cannon's recent "rulings," which aren't really rulings at all, and the consequences are more severe than is being reported.
First, let's orient everyone as to where we are. What prompted these bizarre orders are several motions to dismiss that Donald Trump's counsel has filed. So far, Cannon has not ruled on most of these. One of those motions to dismiss claims that Trump cannot be prosecuted under the Espionage Act because the Presidential Records Act is a complete defense to that charge as it allows presidents to determine for themselves what records are personal and what are not. The highly classified documents that Trump took and refused to return are, therefore, "personal" records because he wants them for himself. An element of the crime of "willful retention" under the Espionage Act is "unauthorized possession" and Trump claims the PRA nullifies this element of the charge.
As readers may recall, Cannon expressed some skepticism about one motion to dismiss based on claims that the Espionage Act is unconstitutionally "vague" and ultimately denied this motion. But she denied it without prejudice, which means she is explicitly allowing Trump to revisit this claim later. And in that context, she also issued this bizarre order for each side to submit proposed jury instructions by April 2 based on the two scenarios that (V)
laid out on Thursday: (1) whether the PRA allows the president to decide what's personal and what's not,or (2) whether the jury should review the records and determine what's personal.
Everyone agrees that either of these scenarios is in direct conflict with the law. But what has not been reported on much are the potential procedural problems with that order, which Special Counsel Jack Smith's team is teeing up in their filing in response to the order. First, jury instructions are typically not decided on by the judge until after the jury has been empaneled and sworn. Once the jury is sworn, jeopardy attaches. You see where I'm going with this. If the judge issues these erroneous instructions to the jury and Trump is acquitted as a result, there's nothing the federal prosecutors can do. He skates. Not only that, but Cannon can issue a directed verdict before the case even goes to the jury acquitting Trump based on those same instructions. Again, there's no appeal from an acquittal and double jeopardy prevents Trump from being tried again on those charges. (Contrast that with a directed verdict after a jury conviction, which CAN be appealed.)
So, here's what Smith and his team are setting up. They are telling Cannon that she must decide these issues now, or they will petition the Eleventh Circuit for a writ of mandamus. Normally, only final rulings are appealable, and this is not one, but a prosecutor can request appellate review using a writ for "extraordinary" relief. And the situation here certainly seems to meet that criteria. The showing required is: (1) clear error; (2) lack of adequate, alternate remedy and (3) irreparable injury. As Roger Parloff points out in
this piece written for
Lawfare, there are very few examples of this being tried, but most prosecutors who DID try were successful.
There are parallels to the situation Smith is facing—the Third Circuit case Parloff cites is an example where the Court found that "if jury deliberations guided by the erroneous instruction end in an acquittal, the injury to the government will be irremediable." Also: "We find that the adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus." While those cases aren't from the Eleventh Circuit, the standard is the same. And the Eleventh Circuit has some experience with having to "correct" Cannon for getting the law completely wrong and issuing crazy orders as a result—having done so twice—so they could already be primed to issue this type of extraordinary relief.
It has been clear for a while that not only is Cannon slow-walking this case and indulging every delay tactic that Trump's team brings, but she is also deliberately avoiding making any rulings that Smith can appeal. And now it seems that she is setting up a Trump acquittal through the use of erroneous jury instructions. So, at this point, Smith has no choice but to get the Eleventh Circuit involved and at the same time, to try to get her removed from the case. If Smith is forced to take a writ and the Eleventh Circuit accepts it, I don't see how they leave her on the case. And if they act with some alacrity, I wouldn't be surprised if the new judge appointed to the case fast-tracked this thing since there are really no facts in dispute and the law is very clear and not at all complicated. That could add an entirely new dimension to the upcoming election if this case goes to trial, say, this summer and the Jan. 6 criminal trial begins in the Fall.
www.theguardian.com
