Aileen Cannon Stomps on the Scales of Trumpy Injustice

Aileen Cannon, without explaining why she was intervening, just rewrote Judge Raymond Dearie’s work plans regarding the Special Master review. This was effectively a de novo review before Dearie issued his final decision in the matter.

With no justification (particularly given the way Dearie has ceded to multiple issues Trump has raised), and after having been scolded by the 11th Circuit for her improper claims of jurisdiction, she effectively just eliminated any claim that the Special Master Trump picked and she appointed is a neutral observer.

Altogether she:

  • Excused Trump from having to lodge challenges to the inventory (while misrepresenting the current deadlines for doing so)
  • Accepted Trump’s claims about the timing of vendors even though DOJ assumed that part of the task
  • Bought Trump’s dodgy claim there are 200,000 pages of documents before DOJ could lodge a correction
  • Ignored Trump’s own hints they missed the one deadline they’ve faced so far
  • Invented claims about how long it took DOJ to conduct an initial review
  • Extended her own deadlines to make sure that nothing would happen until after midterms
  • Claimed (even after the 11th Circuit said differently) that there was no jurisdictional dispute over Rule 41(g) motions

I’ll further substantiate these details tomorrow.

It’s an obvious power grab to ensure her own intervention doesn’t backfire on Trump.

Nothing is surprising about this. It’s not even surprising how shamelessly she has intervened.

The only matter of suspense is how honestly reporters will report this naked power grab.

169 replies
        • bmaz says:

          How about not listening to that twatwaffle. You have been around here forever, and we love you. But you have turned into a somewhat untethered scold for lynch mob “justice”. Its is getting disgusting.

        • anaphoristand says:

          If Keith’s a twatwaffle, and (he’ll have you know!) he dated your senior Senator, does a Cannon make a sound?

        • bmaz says:

          What in the living fuck are you going on about? I want people to quit making this blog stupid, and your comment sure is not helping.

        • anaphoristand says:

          Touché, sir! Was just a lame joke about Olbermann’s recent crowing about having yrs ago dated Mme Sinema.

        • MB says:

          Wow, between Keith having dated Sinema and Gavin Newsom being formerly married to Kimberly Guilfoyle…both women being “formerly liberal” in their political outlooks…

          What’s the sociological analysis one can draw from this – some people are just more attracted toward power than principle? I dunno…

        • Elvishasleftthebuilding says:

          What would Keith Olbermann have the AG do?

          Unless this judge has done something or is suspected of doing something criminal, I don’t think there is much the AG can do. I suppose they could file a complaint alleging “engaging in partisan political activity or making inappropriately partisan statements”, but I don’t see that here. The reality is that a federal district court judge can be as stupid or as nasty as they want to be, and the only practical constraint, absent really bad behavior, is judicial review.

        • timbo says:

          Nonsense. You can be indicted and convicted while still being a sitting federal judge. It’s happened before. And can happen again.

          Cannon is not immune to criminal indictment. You are conflating the civil matter of impeachment by the Congress with how the law actually works. Federal judges are not auto-magically immune to going to prison until impeached and convicted by the Senate. Stop the total nonsense now.

        • Howard Cutter says:

          To the extent that her judgements in this case appear to be quid pro quo for Trump appointing her, could 18 U.S. Code § 201 apply to both Judge and Plaintiff?

        • earlofhuntingdon says:

          Appearance is in the eye of the beholder. Proof is harder to come by. There are more interesting fantasies most of us could pursue.

        • Howard Cutter says:

          As I see it, the proof would be:
          1. Taking a case she does not have jurisdiction over.
          2. Giving Plaintiff’s counsel pointers on their submission.
          3. Ignoring their subsequent submission and acting on what she would have submitted had she been Trump’s counsel.
          4. Consistently ruling in opposition to statute and precedent.
          5. Ignoring the direct ruling of a superior court with regard to the jurisdictional dispute over Rule 41(g) motions.

          If these are not evidence of Cannon “being induced to do or omit to do any act in violation of the official duty of such official or person” then I would be hard-pressed to explain them. Given her education and experience, simple incompetence seems far more unlikely than conspiracy between Cannon and the Plaintiff, particularly given his appointment of her to the bench and his history with trying to forum shop Judge Cannon for his RICO case against Hillary Clinton.

          While more evidence would surely be needed to convict, what elements are missing to open an investigation whereby such evidence, including any improper communications between Cannon and Trump, could be discovered?

        • Troutwaxer says:

          I do suspect there are crimes happening where Cannon is concerned, but they’re not the kind of crimes which leave much evidence behind. If there is evidence it’s probably not good enough for “beyond a reasonable doubt,” so I wouldn’t currently expect Cannon to be arrested.* However, Cannon is well placed to win the world championship “Play stupid games, win stupid prizes” competition. What form her prize will take isn’t something we can’t foresee right now, but I have some suspicions of how things might end up.

          * On the other hand, Trump can be amazingly clumsy when he breaks the law.

        • earlofhuntingdon says:

          Seriously? You read EW and all you’ve got is, “listen to Keith Olberman?”

          I’m sometimes accused of wasting time. I won’t add to the indictment by listening to Olberman.

      • Rugger9 says:

        I agree this ruling was a foregone conclusion, but I am at a loss regarding how Cannon can ignore the 11CA since they’re her superior court in the federal structure. Perhaps I’m missing something.

        As to what Garland can do, it is time to use the DCC to assert its black-letter law authority over EP questions. I think Individual-1 is daring AG Garland to file his charges now, but at least I think Garland can yank the NDI piece away from Cannon (but IANAL).

        • PieIsDamnGood says:

          She wants to be appointed to the Supreme Court in 2025. Rules don’t matter, only power does. What can the 11th circuit do to stop her?

        • Peterr says:

          Reverse her again, this time not on the extremely limited grounds of the emergency petition from DOJ re the classified documents but for the whole damn case.

        • timbo says:

          She can ingnore this until the DOJ gets an appeal and an hearing before an appeals panel on the matter. Why DOJ has not pushed this as fast as they can is a mystery at this point.

        • P J Evans says:

          I suspect they were hoping she’d get the message. But if she hasn’t, then they’ll do whatever they think they need to do.

        • earlofhuntingdon says:

          She does know it, but she doesn’t care. Like so many of his believers, she arrives at her position not out of ignorance or stupidity, but out of belief in the Lord Our Trump.

        • LeeNLP says:

          Cynical self-advancement in the service of those who are funding her career trajectory seems more likely than misguided belief. For such people, honestly fulfilling one’s oath to advance justice within the framework of our nation’s laws is not part of the equation.

          It brings to mind a quote by CS Lewis: “The greatest evil is not done in those sordid dens of evil that Dickens loved to paint … but is conceived and ordered (moved, seconded, carried, and minuted) in clear, carpeted, warmed, well-lighted offices, by quiet men (and women) with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices.”

        • Rayne says:

          I disagree. Assuming there’s enough evidence meeting federal evidentiary standards and a grand jury agrees, announce an indictment on the first Friday after election day about 4:00 p.m. so the right-wing monkey horde and its media can wail into the void of the weekend.

        • bmaz says:

          What in the world does Election Day have to do with anything? No idea who Keith P is, but perpetrating the false 60 day bullshit by anybody is not helpful. It is complete garbage.

        • Rayne says:

          You know the 60-day window is bullshit, I know it’s bullshit, but the right-wing monkey horde believes it isn’t. Let’s not forget we’re in the middle of the largest federal investigation ever with more than 1000 perps persuaded to take action because of right-wing monkey horde bullshit.

          So take the bullshit out of play — assuming there is enough evidence and a grand jury persuaded by that evidence — by executing with an eye to timing.

      • paul lukasiak says:

        The DoJ could just indict Trump, which I understand would moot the entire proceedings in front of Cannon.

        Barring that, the DoJ could file for a stay pending appeal of the rest of Cannon’s order with the 11th Circuit. Most of the standards for such a stay were met in the Circuits own ruling on the classified docs stay request. The ‘harm’ standard would have to be reformulated, but its not an insurmountable burden.

        Finally, the DoJ could ask Cannon to reconsider her original order, in light of the jurisdictional findings of the 11th Circuit in the classified docs stay request.

  1. Sandwichman says:

    “The only matter of suspense is how honestly reporters will report this naked power grab.”

    I am not holding my breath.

  2. earlofhuntingdon says:

    A nakedly partisan hack, who wants to join the Supremes on the coattails of a Republican fascist victory. If only the congressional impeachment process actually worked.

    Substantial delays, no interim reports, and no requirement for the plaintiff to do anything but review the docs. LOL.

    I hope there’s something there that can be effectively appealed to the 11th Cir., although Cannon amply demonstrates that she doesn’t care how badly a neutral court smacks her down for the shoddiest of legal reasoning and judicial behavior.

    • timbo says:

      She’s definitely signaling that she’ll do whatever dirty work is required of a federal judge to help the GQP hold power and avoid a conspiracy indictment, especially when it comes to Team Twitler in this case.

    • Elvishasleftthebuilding says:

      Yes. But you would need to have a sufficient basis to do so. My view is that it would be an exercise in futility. The criteria are pretty narrow and complaints are almost always dismissed – at least in the 11th circuit cases that I reviewed on their website.

      Here’s a place where you can do a little more research, for what it’s worth, as I am no expert.

      • timbo says:

        Frankly, the DOJ and perhaps the President should file such a complaint. They won’t, of course. But they should. They might get a little more traction than just you or me, basically.

        • earlofhuntingdon says:

          This refrain is beginning to sound like a DDS. The line for ponies is on the left, but it starts around the corner.

    • Elvishasleftthebuilding says:

      And apparently I don’t know how to use this site – I was supplementing my last post – complaints can’t be related to the substance of a decision or a procedural ruling. And complaints need to be supported by evidence. I chose 20 cases at random from the 11th circuit at random from the past two years – every case of judicial misconduct was dismissed. So it is close to the truth that a federal judge can pretty much do what they want to whoever comes before them – and the only constraint are higher courts.

    • Peterr says:

      Ken White, aka @Popehat, has a great thread on this question, which begins like this:

      BrieflyAsABoatHat @Popehat 19m

      Hi. It’s me, here as usual to trample your civic hopes and dreams with my ugly Crocs of legal realism.

      Filing “official complaints” against federal judges over their rulings is masturbatory nonsense.

      • Christenson says:

        So what short and long term consequences can come to Judge Cannon? Doesn’t sound like another spanking from the appeals court is going to bother her.
        Could the 11th circuit remand and require a different judge? (They did that to one criminal case twice in California recently, basically for failing to actually review a petition from the defendant, I think that’s via Meghann Cuniff. (and that independent of the jurisdictional issue DOJ has raised). I’m super doubtful congress will act, even if it ends up quite a bit bluer after midterms, and there’s no evidence Judge Cannon is engaging in the sort of petty criminality that might get her arrested.

        • Silly but True says:

          Your complaints are both a feature and a bug of (Article III) federal judges.

          A simple primer:

          And the relevant part:
          “ Article III states that these judges “hold their office during good behavior,” which means they have a lifetime appointment, except under very limited circumstances. Article III judges can be removed from office only through impeachment by the House of Representatives and conviction by the Senate…
          The Constitution also provides that judges’ salaries cannot be reduced while they are in office.”

          One begins to contemplate perfectly legal scenarios: a federal judge, indicted, convicted, and sentenced to prison but not impeached, or impeached but not removed from office: at very least they would still get paid while in prison; they might effectively be sidelined within the federal court system from actively handling cases, but unless they are convicted in Congressional impeachment, they get paid under any other circumstance. There are some administrative hurdles the federal court system can impose.

          How rare are these scenarios? Only 15 federal judges have ever been impeached with just 8 being convicted.

          The most recent was Thomas Porteous in 2010; it took about two years for his crimes to conclude in a Congressional impeachment conviction, (although he was never criminally charged).

  3. Pete T says:

    Can these recent rulings by Cannon be appealed by the DOJ to the 11th?

    Can the entire – don’t know what to call it – but all of what Cannon has put in play now be appealed to the 11th? And were the DOJ to prevail then does it get transferred to the 11th or what?

    If there is to be a case I presume DOJ has to indict and if they do then likely in DC.

    • Elvishasleftthebuilding says:

      I am not sure what in that ruling constitutes an appealable final order. Perhaps the decision to appoint the special master could be appealed, but at this point, given the exclusion of the classified materials by the Court of Appeals, I am not sure that this circus makes a whole lot of difference. At best Judge Cannon’s order allows Trump and his attorneys to keep additional options open to stall the process (which really is the point).

    • timbo says:

      They’ve already got an appeal filed, correct? The earlier partial stay by the 11th Circuit was issued as an emergency stay of the general appeal is my understanding.

      • Coffae says:

        Also, the last direction from the 11th was that the 100 or so top secret documents were outside the purview of the Special Master, or am I not understanding this right?

      • Arteberry says:

        The appeal is pending. The appeal’s outstanding issues (that is, the issues not already addressed by the grant of a partial stay) are (1) the need for any special master at all; and (2) the erroneous claim that EP could ever apply to any of the records seized. I believe the government’s opening brief for the 11th Cir. is scheduled for October 19. The process might normally take 3-4 months, or more, beyond that to be fully resolved.

        Despite the evident politics behind Cannon’s ruling today, the only immediate consequence is delay as to items that, in some cases, may not be that important to the building of the government case. Where the real problem comes is when Dearie, at the end of his duties, appropriately determines that EP cannot apply to any of the records. And then Cannon rejects Dearie’s finding and accepts a sweeping recognition of EP, so as to block the government from making any use of the records that might really be material. You can already smell that Cannon b.s. being loaded on to the back of the judicial truck. That’s when DOJ is going to have to fight like hell and, perhaps, seek emergency relief from the 11th Cir.

        • Arteberry says:

          And here’s the “tell” about Cannon’s plans for the EP claims: she quietly reduced the number of documentary categories Dearie had laid out for Trump from 6 to 5. Specifically, she collapsed into one category EP claims that are effective only against Congress or the public and EP claims that are also effective against the current executive branch. Dearie had treated those as two different categories. Cannon is going to find an EP case based on preventing disclosure of presidential communications to Congress or the public and conflate that case with what is going on here. It seems the 11th Cir. Is prepared to undo such nonsense but Cannon can buy many more months for Trump if she wants to uphold preposterous EP claims.

        • Former AFPD says:

          Thanks Arteberry. Your comment is calm, fact and experience based, as usual. As an aside, for those clamoring for Judge Cannon’s head by making complaints against her, such complaints never go anywhere. In most circumstances, you won’t hear about the resolution of any such complaint. The only successful, meaningful way to get a federal district court judge’s attention for a mistaken decision is to get her reversed and spanked in the opinion of a higher court. That’s what happened in the 11th Circuit opinion. That appellate panel is paying attention to what is happening now. They will have something to say about Judge Cannon’s actions.

  4. earlofhuntingdon says:

    Judge Cannon’s citations for her authority to entertain a Rule 41(g) motion are distinguishable from the facts here. Her notion of “exceptional circumstances” required to assert her equitable jurisdiction is thin. Thinner still are her legal arguments. Cannon cites two cases:

    1. US v. Wilson, 540 F2d 1100, a DC Cir. case, which held, in part,

    This case presents the question of the jurisdiction and duty of a federal district court in a criminal case to return to the defendant that property seized from him in the investigation but which is not alleged to be stolen, contraband, or otherwise forfeitable, and which is not needed, or is no longer needed, as evidence. We hold that the district court has both the jurisdiction and the duty to ensure the return of such property.

    The government absolutely contests ownership of presidential and federal records seized from Trump’s possession. They are the property of the USG and are needed as evidence in an ongoing criminal investigation. There is no basis for their “return” to a party who has no right, title or interest in them.

    2. In the Matter of John Bennett, before Judge Rosenbaum in SDFL. Cannon cites a 31 July 2012 decision. The cite I found was from 23 July 2013.

    Bennett relates to documents seized during a criminal investigation for drug crimes that had not yet progressed, after two years, into an indictment or prosecution. Bennett sought the return of documents that were admittedly his. The court ruled that, even after two years, the government continued to have an investigatory interest in them that allowed it to retain the seized documents. Bennett’s discussion of the four factors in Richey affirmatively hurts Trump.

    It’s as if Cannon just throws out citations, expecting that no one reads them. Based on its one ruling to date, I’m pretty sure the 11th Cir. does.

    • timbo says:

      She’s playing fast and loose with the 4th Amendment here, and also the 5th Amendment privileges. As a federal judge she can say and do these things until called on it… If it can be shown that she is in a conspiracy to obstruct, she may have bigger problems under the various interrelated NDI statutes. IANAL, but if the DOJ has evidence that she’s involved in a conspiracy to obstruct a national security investigation into stolen government NDI records, I would imagine she may have big problems soon enough.

      • JohnnyO says:

        And how would they have evidence of such a conspiracy? They would need access to correspondence or sworn testimony to that effect, wouldn’t they? Unless they’ve got court approved wiretapping or a search warrant or a snitch, I don’t see that happening.

      • earlofhuntingdon says:

        The Fourth Amendment is not implicated here. The public record so far is that the search warrant was valid and the search was properly executed, including the treatment of seized materials that were potentially privileged. Cannon ignores the record and pretends that’s not true.
        Cannon has also acted in the manner Michael Cohen says all Trump’s capo regimes do: she has answered his prayer without making him utter it.

        That is, she helps him avoid making admissions he should be obligated to make as part of meeting his burden of proof as the plaintiff. She helps him avoid having to make the public argument that he should be excused from meeting that burden – which should lead to dismissal of his case – because meeting it would incriminate him. She helps him avoid pleading the Fifth, which can be held against a plaintiff in a civil proceeding.

        As EW has said since the beginning, Judge Cannon is not ignorant, or stupid, she is artfully corrupt.

        • timbo says:

          It is a 4th Amendment warrant, as you yourself admit by your statement about Cannon and her odd standing to even be involved here. The DOJ has apparently done due diligence under the 4th Amendment. Cannon is ignoring that it has and is trying to help out plaintiff’s ghost 5th Amendment concerns prematurely, against precedent, and possibly outside of her lawful jurisdiction as a federal judge. Cannon is challenging the process by which the government can use the 4th Amendment, already a high bar to begin with, to continue a national security investigation into likely obstruction by an ex-President.

        • earlofhuntingdon says:

          Of course it’s a warrant authorized under the Fourth Amendment. That’s the point. It was procured by complying with the amendment’s requirements and executed properly, according to the public record.

          Trump has not provided facts or arguments in court to refute that. He casts doubt on it only when using extra-judicial fora, in which lying has no effective consequences.

          Not providing those things and allowing Trump to impugn the DoJ and federal courts through consequence-free lying is what Cannon lets Trump get away with. That’s a matter of belief for Cannon, as well as a statement of her bottomless ambition, a combination the FedSoc energetically seeks.

      • earthworm says:

        i speculate that over the time that NARA was requesting return of docs, winter/spring of 2022, there would’ve been plenty of time to study up on moves: how judge cannon could obstruct this case once it would come to court. that she jumped so fast into what was not her jurisdiction shows some forethought.

    • nedu says:

      The “July 31, 2012” date in n.4 on p.6 of DE 125, by inspection of the docket for In the matter of John Bennett, seems to correspond to FLSD 0:12-cv-61499: DE 1.

      Looking again at (FLSD 9:22-cv-81294) DE 64 p.7, n.7, the citing portion is:

      See… In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012) (initiating an action with a “petition to return property”);

      • earlofhuntingdon says:

        Rosenbaum’s decision in 2013 is the resolution to that case, which is normally what a judge what cite.

      • earlofhuntingdon says:

        Thanks for finding that. It is inexplicable why Cannon would cite Dr. Bennett’s pleading – his petition to the court for return of what the government admits is his property, seized under an apparently valid search warrant, from from July 2012 – but Not the court’s decision on the merits of that petition, from July 2013 (the case I cited).

        FFS, Cannon is citing, in effect, only Trump’s side of the argument, rather than the court’s judgment on that argument, which is the actual precedent in her district. It’s as if she were admitting her bias.

  5. FiestyBlueBird says:

    What might be the legal or career consequences for Dearie, were Dearie to simply resign, with a letter or statement explaining he cannot in good conscience work under the direction of an obviously corrupt judge? He could cite the fact that the plaintiff must, under law, do such and such and the corrupt judge effectively just said, “No, let’s not follow the law here.”

    I expect some incoming fire here, but I am honestly curious. Could anything bad happen to him on the legal front, or career-wise?

    It’s OK if the community here deems me an idiot.

    I do understand such a move would impact other things, even though I sure as hell wouldn’t claim to know “what” other things, exactly.

    The good news that remains is the DOJ is using the classified documents to pursue at least some of what they need to pursue.

    • timbo says:

      What the judge is doing here is not following precedence afaik. The law is flexible and inexact, which is why we have judges in the first place? DOJ has also not been fighting this as hard as they could. (That latter part is a mystery to some of us for sure.) Dearie, on the other hand, will stick it out in all likelihood.

      DOJ is continuing its investigation into those classified marked documents seized in August. A grand jury will still be issuing summons and indictments based on that if that’s what DOJ (or the grand jury) wants to pursue, whatever Cannon is saying or doing at the moment…thanks to the partial stay issued by the 11th Circuit appeals panel.

      • JohnnyO says:

        Don’t forget they also have had access to classified documents previously turned over to NARA prior to the raid on Aug 8th.

        • JohnnyO says:

          I guess I was adding on to your post in support of what you were saying, but your subsequent reply to Chairborne brings up another question; Could TFG not have known exactly what he was sitting on (indicating incompetence) or just the opposite (diabolical scheming)? There seem to be three sets of classified documents; those returned (grudingly) prior to the Aug 8th raid, those found during the raid and those implied to be at large (empty folders or yet to be discovered). This brings up yet another question we may never know the answer to which is shouldn’t the intelligence community know exactly what is missing?

        • timbo says:

          In answer to your first question, Trump and is lawyers should have known what they had and didn’t have as they were obligated under the earlier subpoena to produce all relevant documents.

          In answer to your second question, that is a red herring for the most part. No one knows what is and is not missing from all the records and archives of the United States Government. However…

          There is an investigation into the matter of the government’s records that were recovered from Trump over the past year. Some of that recover was done via subpoena and then by a Federally authorized search and seizure warrant. It is certainly hard for the government to figure out what is and isn’t missing if a wonky judge like Cannon gets involved and prevents the government from figure out what is and is not missing from the USG’s own records because an ex-President might be indicted for stealing some of those missing records. Tangentially, when one is asked to produce governmental records owned by the government, fails to do it, then is subpoenaed to do it, still fails to do it… well, one can surmise that that person or person is not truly interested in helping the US government figure out what US government records are missing from the US government archives.

        • Chairborne Nam71 says:

          I’ve been wondering about the lack of mention of the classified docs prior to Aug 8th. I’m assuming that Judge Cannon has no judicial interest in these docs. Couldn’t DOJ use these docs for investigation, a case, charges etc?

        • timbo says:

          They could but they won’t. These earlier documents were turned over in January and June, to be in compliance with a subpoena and the Presidential Records Act…after Trump tried to drag that earlier process out with specious claims about executive privilege, etc. What is of more interest is the documents that were not turned over in June. This is where Cannon is interfering with things pretty much.

        • Chairborne Nam71 says:

          Thanks Timbo
          I agree the trove of docs from MAL Aug 8th are more significant and especially in the context in which they were found with other docs/boxes/desk drawers.
          Tom from Ann Arbor

    • Michael Scott says:

      That’s what I would advocate, as well, for Judge Dearie: Apply the John Bolton ethical standard (“keep me the hell away from your drug deals”) and simply resign as Special Master, in protest.

      I really don’t think it would hurt his (remaining) career — quite the opposite.

    • Silly but True says:

      There are zero consequences for Dearie.

      This is all something a career expert accepts once they accept the role.

      Remove the personalities from the equation: Dearie is doing the Court a big favor here; his very participation already resolved a particularly contentious dispute: that he was accepted by both sides is credit to his lifelong service. That he was accepted allowed the case to proceed with also serves the DoJ’s interest.

      He’s not going to resign; if there was ever anything that could have conceivably caused him to withdraw, he would not have accepted to begin with.

    • Peterr says:

      Dearie is a federal district court judge in New York, on senior status. That means that he does not have to take as many cases as a active judge — basically, he’s easing into retirement.

      Nothing bad could happen to him if he says “I’m sorry, but this is not what I signed on for”, makes his recommendations re the documents to Judge Cannon with a very strongly worded report that makes clear he disagrees with the manner in which she has tried to tie his hands, and goes back to his day job in New York. He could make it extremely uncomfortable for her to overrule his recommendations — not prohibit her from doing it, mind you, but definitely exposing her to ridicule and attack from both the general media and the legal community.

      • Richieboy says:

        “exposing her to ridicule and attack from both the general media and the legal community.”

        And she’ll wear the approbation like a cloak of virtue before the constituency she serves, which will celebrate her for it.

  6. hollywood says:

    It doesn’t seem Cannon has done any fact finding, only fact presuming. And all presumptions appear to favor Trump who has the burden of proof. Can’t this be appealed? Or can’t the 11CA reach down and grab the case and instruct Cannon to follow the facts and the law?

    • timbo says:

      It’s definitely not normal the way she is handling this civil action in her courtroom. But she’s already signaled that Trump is somehow specialer than most of the rest of us already. Hopefully she’s gone from this case (and the federal bench) soon enough…if DOJ will work harder to make that happen.

    • stancat says:

      It’s even worse. She treat various Trump team assertions as facts when they are either contested or certainly would be in any proceeding based upon evidence and normal adversarial procedure. E.g., the 200k pages datum that Dr. W already wrote about. She also treats as facts some off the record things she has apparently absorbed from sources like Fox news. I don’t know criminal procedure well enough to understand the pros and cons of DOJ’s acquiescence to an evidence free decision making process in this civil action that is micromanaging portions of an ongoing criminal investigation. But in any more conventional action for preliminary injunctive relief, the defendant would fight like hell for an evidentiary hearing before the judge gets to dish out such extreme measures. And it would be a blatant abuse of discretion to deny any such request.

      • timbo says:

        She treats statements not entered into the court record by plaintiff as a reason to make rulings on behalf of plaintiff. She’s been open about her intention. She intends to stop DOJ from embarrassing an ex-President who appointed her to the bench.

  7. cdg says:

    Clearly this Cannon is incapable of being shamed, but surely Dearie is under no obligation to continue as special master for a judge who is junior to and has an apparently inferior legal mind to him. Just quit with guns blazing as to the reason. That will salt her appellate court chances, much less her SC chances.

    • Amicus says:

      I hope that Dearie does not do so. This would let her put in place someone pliable, if not likewise biased, as the replacement Special Master. I suspect Dearie will stay the course and take some positions that will be difficult (if not impossible) for her to write around in any principled away, assuming the 11th Circuit lets this play out that long.

      If DOJ signals that they are ok with letting things unfold that way, and thus affording the 11th Circuit the ability to take her rulings on these documents into consideration before smacking her down, they might do so. Alternatively, DOJ may want to shut it down as soon as possible to avoid giving Trump another talking point victory.

      • General Hubbub says:

        Doesn’t Cannon already have the authority to replace Dearie on a whim? I thought she explicitly stated that in a previous ruling.

  8. Amicus says:

    She is doing all of this knowing that the 11th Circuit will almost certainly rule again, and with full knowledge of her bias on display again. I say bias because she was express in her prior order that she needed to recognize the special equitable rights enjoyed by a former President. She got slapped down on that point, but does not care. At least DOJ’s mission on appeal is straightforward: argue that she never should have asserted jurisdiction over any of this.

    I think I figured out the 200,000 pages equivalent claim: it’s the number of words on a page. If you use a standard of 250 words per double space page it’s an easy piece of gamesmanship. By comparison the number of words on a page of newspaper is extremely large – anywhere from 1500 to 3000. Even the difference between a single space memo compared to a double space page of text is 500 words versus 250.

    The one schedule she cannot control is when the 11th Circuit chooses to rule. They might just let things a play a bit and force her to rule first.

    • skua says:

      Paragraph breaks and illuminating content!
      You and the other legally trained folks here don’t owe the rest of us anything.
      And, as you may have noticed, some of the rest of us are occassionally functionally illiterate, adrift and ignorant around legal matters – laws, procedure, jurisdictions all get rolled up with naive notions and feelings.

      Thanks to all the legal folks who do take the time to light a candle against the dark.

    • timbo says:

      [intolerable hashtag goes here]

      [This comment is your 30th since 5:00 p.m. ET across the last open threads here, most of them idle chatter like this one. Slow your fucking roll or I will help you with that. /~Rayne]

  9. KM Williams says:

    “”The only matter of suspense is how honestly reporters will report this naked power grab.””

    The Guardian’s report is pretty much a big yawn:

    “”Trump not required to provide sworn declaration that FBI ‘planted’ Evidence”
    Judge rules ex-president does not have to confirm under oath insinuations until his lawyers have reviewed seized materials””

        • earlofhuntingdon says:

          An improvement over the Guardian and the WaPo. But I would have said, “admissions,” rather than submissions.

        • M Smith says:

          Lol. Rawstory quoted Dr. Wheeler in their headline.

          Experts slam Judge Cannon’s latest pro-Trump ruling:
          ‘Hilarious, corrupt, shameless, and obvious’

  10. OldTulsaDude says:

    May be a stupid question but would an indictment of Bobb remove the documents from Cannon’s jurisdiction?

  11. Scott Rose says:

    Meanwhile back in documentable reality, there was nothing improper or inadequate about the original filter team.

      • DrDoom says:

        I have a question for you based on your previously expressed view that DoJ went seriously off the rails by allowing any public disclosure of the initially sealed portions of the search warrant and supporting documents. I understand your objections and believe I understand the reasons for them. What is not clear to me is how adhering to a strict stance of minimizing public disclosure, events would have unfolded differently given Judge Cannon’s agenda. Wouldn’t the DoJ been equally steamrolled by her decisions even if they had acted as you thought appropriate? IANAL, and in this case, I don’t even know enough to be able to formulate a question that would get me to a useful answer on the Cornell legal basics site. Thank you.

        • bmaz says:

          Fair question. Starts with I don’t think the root of Rule 6e of the FRCrP should have been blithely ignored by DOJ. It is FAR bigger than just this Trump case.

          But, as to this case, it served to walk straight into an 11th Circuit headwall, and that is still playing out. People are freaking out about Cannon, she should be irrelevant and never in charge of anything, but Garland and the DOJ walked in that door, and here we are.

  12. Coffae says:

    Senator Feinstein had some interesting questions for Cannon regarding her appointment as judge, and below is the Q/A:

    Particularly this exchange that has some bearing on what is happening today.
    Q. “If you were reviewing credibility determinations made by a magistrate judge after a hearing at which the magistrate judge took live testimony, would you ever overturn those credibility determinations without re-hearing the live testimony yourself?”

    A. “A district court commits legal error when it rejects a magistrate judge’s credibility determinations without first holding a new hearing to rehear witness testimony.
    See, e.g., United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010); Amlong
    & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1245 (11th Cir. 2007).”

    I realize that this is not exactly the circumstances, but in the spirit of her response, the likeness comes where she herself gave Judge Dearie a task and now without further explanation or investigation herself, is belying his direction.

    It appears that she was confirmed even after she minimized Senator Feinstein’s other concerns in her Q/A responses over her allegiance to the Federalist Society as well in these documented questions. Pity that.

    • Silly but True says:

      The difference is significant. Magistrates establish facts based on certifications of probable cause. Whereas, Cannon’s Special Master has not yet established facts / is still establishing facts / will establish facts.

      In the former case, if judge has issue with Magistrate’s credibility determination, then they should get to bottom of the issue; the judge weighs the same facts the Magistrate did.

      In Cannon’s case, there’s no such equivalent facts established yet; the activities to date have associated to the processes for how the Special Master will determine any facts.

      At this time, along a shortest possible ideal timeline, Cannon might reach the similar point of the Magistrate example by mid- to late November-ish. Then we can compare them if she disagrees with Dearie’s reporting.

  13. hollywood says:

    Cannon has done such a fine job on this case, she should immediately be promoted to senior status and shuffled off to some remote backwater with a reduced caseload.

  14. David F. Snyder says:

    Aileen Cannon forgets one fundamental fact about TFG: everything he touches dies.

    Also, it’s pretty laughable if she thinks Trump intends to run in 2024 or be installed in 2025 (or sooner). No, the tide is rolling in against Trump and he thinks he can stop it with hot air or pistol-waving yahoos. She has as much chance of being a Supreme as a plain donut.

    • Richieboy says:

      Yes! An important reminder AND it made me feel better in the wake of this depressing shit show of naked judicial bias. And I’d never heard the “as a plain donut” comparison before. Love.

    • Marinela says:

      Except that she doesn’t need Trump to be nominated.
      She is auditioning for the next time WH is in the hands of a GOP president.

      • bmaz says:

        Good grief, folks are out of their minds on this. Cannon is not going to be the next SCOTUS Justice. Y’all need to pull back and get a grip.

  15. Fiendish Thingy says:

    In the bigger picture, does this ruling really matter all that much, since the 11th overruled Cannon and permitted the DOJ to continue its criminal investigation of the classified documents? Does a delay for a privilege review of unclassified documents really have a significant effect on the espionage case?

    • Silly but True says:

      This “records case” isn’t entirely all about any espionage crimes.

      In fact, the espionage allegations might resolve to be the easiest or least complex aspects of the overall records dispute between ex-POTUS Trump and NARA which initiated it.

      Also at issue are possibility of document theft; regardless of any records being classified or not, Presidential Records belong with NARA until those records are ready to be disseminated to the public through Trump’s Presidential Library.

      Also, at issue is allegation that reason for taking some of records was to obstruct various other government acts or investigations, again this can be case regardless of the status of a particular record being a national defense State secret.

    • Peterr says:


      DOJ cannot use these other documents as part of their analysis of the classified materials until this case is resolved, under Cannon’s bizarre ruling earlier.

  16. Bay State Librul says:


    Re: Lynch Mob Justice

    Your comments remind me of Mark Twain’s dentist, John Markey Riggs from Hartford, Connecticut.
    “He was a gray and venerable and humane of aspect, but he had the calm, professional surgical look of a man who could endure pain in another person.”
    Keith has a common sense approach to this legal paradox.
    “Trump is a kleptomaniac so arrest him for stealing government documents.”
    I’m pretty sure the jury would agree.
    Nothing disgusting here.
    Please cut out your flamdoodle and speak the truth.

    • Baltimark says:

      Your KO paraphrase implies that Trump should NOT be arrested if he is not a kleptomaniac. At the same time, many if not most thieves are not kleptomaniacs. Also, I’m not seeing any particular statutory hook here. If that reflect’s KO’s actual commentary, that is clickbaity Armchair Justice By Vibes. It doesn’t, and shouldn’t work that way.

  17. The Original Alan says:

    Despite the tone of this ruling, I thought it was reasonable. She excused Trump from having to dispute the inventory for now, but left open the possibility this could be revisited after Trump has reviewed the docs. She also stated Trump did have to identify material over which he claimed executive privilege, and then further identify the scope and basis of that privilege claim. So that is even broader I believe than what Judge Dearie had asked for.

    • Peterr says:

      I disagree, firmly. For example . . .

      In her initial order appointing Dearie as the Special Master, Cannon acted as if Trump had filed a 41(g) motion for the return of property, something the 11th Circuit noted that Trump’s legal team explicitly denied having done so to this point in the proceedings. She apparently cannot read an appellate court ruling, because she did the same thing here.

      To organize the review process, Dearie ordered the DOJ to prepare and send to Trump a spreadsheet identifying each and every document, then ordered Trump to mark the sheet for each document as to any of the following:

      a. Attorney-client communication privilege;
      b. Attorney work product privilege;
      c. Executive Privilege;
      d. Presidential Record within the meaning of the Presidential Records Act; and
      e. Personal record within the meaning of the Presidential Records Act.

      To expedite the whole procedure, Dearie asked that Trump’s team release their work on a rolling basis, to speed up the process by letting DOJ and Dearie reviewing the spreadsheet to see where there is agreement and where there is disagreement.

      Cannon overruled this, saying:

      To avoid confusion and enhance organization and clear deadlines . . . the Court determines that submission by Plaintiff to Defendant of one final comprehensive log is bettered [sic] suited to manage the process and resolve any disputes.

      This has nothing to do with deadlines – Dearie was clear that there is one deadline. This has nothing to do with enhancing organization – the spreadsheet organizes things quite well. This has nothing to do with avoiding confusion – Trump’s designations will be the same, whether his lawyers turn them over on a rolling basis or all at once in a massive dump.

      What this does is force DOJ and Dearie to swallow all of Trump’s work all at once, giving Trump the opportunity to dump as much as possible at the very last moment, to reduce the amount of time DOJ and Dearie have to check their work.

      This is *not* in the interests of justice; it solely exists to serve the interests of the former president.

      I could go on, but you get the idea.

      • Arteberry says:

        Incorrect. Dearie did not specify the 5 categories (a through e) you recite above. Dearie specified 6 categories. Specifically, Dearie separated executive privilege claims into (1) a privilege against dissemination of a presidential communication to Congress or the public and (2) a privilege against disclosing such communication to the executive branch. Cannon subtly disappeared Dearie’s multi-prong consideration of executive privilege. My guess is that Dearie will rule, appropriately, that executive privilege applies to none of the records. Cannon will then reject Dearie’s opinion and allow sweeping assertions of executive privilege. Cannon will try to conflate the potential of an ex-president asserting executive privilege against Congress or the public (which Kavanaugh seems to think is possible) with asserting the privilege against the executive branch investigation at issue here. The 11th Cir. will eventually undo Cannon’s nonsense but the effect will be to buy many more months of delay for Trump.

        • Peterr says:

          That correction re the categories aside, my broader point about eliminating the provision to submit their information on a rolling basis — and that her stated reasoning for doing so has nothing to do with overruling Dearie on this — still stands.

    • earlofhuntingdon says:

      Not reasonable, not broader, and it provides Trump weeks of delay for him to pursue his PR campaign, conveniently through the November midterms. Dearie’s schedule was not likely to permit any of that.

  18. Moose #2 says:

    Sanity check anyone?

    Is it even remotely plausible that Trump’s crew has to sort through 200,000 pages of siezed documents? Let’s find out.

    A normal ream of copy paper is 2″ thick.

    A normal records storage box is 10 x 12 x 15″ inside.

    So if you start at one end of a normal records storage box, and pack documents printed on normal copy paper tightly all the way to the other end, you could pack in about 7 1/2 reams of paper. Printed both sides, that’s 7500 pages. So with 27 (?) document boxes total, you might conceivably have 202,500 pages. If you overpack every box, by packing all documents toward one side and filling the extra inch on the oher side, and filling the empty 1 1/2″ at the top, you could pack in 8 3/4 reams per box, or a total of 236,250 pages (if printed on both sides).

    But is that even remotely plausible? No.

    If individual documents are stapled together, or paper-clipped, or put in folders, they take more space. 200,000 pages no longer fit.

    If more than one or two boxes include personal items, 200,000 pages no longer fit.

    If documents are packed loosely enough so you can find something specific without half emptying a box to be able to look through the rest, 200,000 pages no longer fit.

    If documents are packed loosely enough so you can use the handles built into the box, 200,000 pages no longer fit.

    If any substantial portion of the documents are single-sided, 200,000 pages no longer fit.

    So no, the boxes siezed, if packed the way a normal person might pack his own records, DO NOT contain 200,000 pages of something a normal person would consider documents.

    How might the contain 200,000 pages?

    If you fill a records storage box with pocket-size paperbacks, you could probably get about 20,000 pages in one box. Would any rational person include those in a count of “document pages” that need to be scanned, bates numbered, and reviewed? I doubt it.

    If you pack a box with books printed on very thin bible paper, you might even manage 30,000 pages in one box. But again, would any rational person include those in a count of “document pages” that need to be scanned, bates numbered, and reviewed? I doubt it.

    What about clippings? Those could be small, … right?

    Well, the thing about clippings is that they’re both utterly useless and very easily damaged if you don’t either mount them on something or put them in something like a plastic sheet protector. Either makes them take more space than a piece of copy paper. So 200,000 pages of clippings? I seriously doubt it.

    So where did 200,000 pages come from? We probably need to wait for some comment from DOJ to know, but I suspect either Trump’s attorney’s are flat-out lying, or DOJ told them 20,000 pages and someone added a zero, or two different people on Trump’s crew each heard 100,000 and somehow the two got added together.

    But 200,000 pages to actually be processed?

    No way.

  19. Paulka says:

    Correct me if I am wrong, but Cannon’s order requires Trump to submit, by November 4, 2022 the “…annotated copy of the spreadsheet described above that specifies, for each document…” whether it fits in 1 of 4 or 5 categories.

    Cannon ordered the DoJ to certify the completeness and accuracy of the list.

    Trump will, on November 4, 2022, have to make a declaration on the list categorizing each individual document. Doesn’t that declaration (the annotated spreadsheet) result in Trump having to declare a document as planted? Does not declaring the nature (and associated privilege of a document) in and of itself a declaration that the document was not planted?

    Of course, the point is to delay and obfuscate, but the trap is still there.

    As an aside, do ya’all still wonder why there are so many lawyer jokes?

    • Silly but True says:

      Cannon mooted for now Trump’s need to categorize as classified or not at this time.

      The “planted evidence” schtick is easy to understand when you understand Trump’s angle: “Trump declassified everything before he left.” He hasn’t explicitly stated this in court and has been fighting doing so, but this is what he means: Ergo, according to this angle, it’s consequently axiomatic that anything classified found by the FBI must have been planted, because despite the unmistakable classification markings on documents, nothing in Trump’s possession was classified.

      Because the classification dispute has now moved beyond Cannon’s court and reach, Trump needn’t press a fight over it at this time within Cannon’s domain, and Cannon isn’t making him do so.

    • nedu says:

      Theoretically, indictment is the ACT of a Grand Jury’s volition.

      If you want see an interesting jurisdictional question pop up… …well, never mind the theory after all. In practice, DoJ might as well be filing an information, right?

    • Fiendish Thingy says:

      That’s what I want to know; today’s ruling just seems like a distraction from the Espionage investigation, which continues due to the 11th’s ruling.

      • Peterr says:

        DOJ wants to use these documents in their espionage investigation, as they can cast light on the classified documents which were stored with them. To this point, they are prohibited from doing that.

        This is not a distraction – this is a roadblock to a national security investigation, something the 11th Circuit already has noted is not something the courts should do without great reason (something Cannon has not even attempted to address).

        • cmarlowe says:

          As you said, the non-classified (I.e. not marked “classified”) documents can cast light on the classified documents. Then again they may not, we don’t know yet (though I may have missed something).

          What is also interesting is that for one or more of the documents not marked “classified,” if they do shed light on a document marked classified, might itself then be considered to contain classified information. Thus the unmarked document would then also be considered to be classified.

          Classified information when combined with particular unclassified information can sometimes result in all of it being considered classified.

          Perhaps the emergency 11th cir. appeal should have included all the documents.

        • Silly but True says:

          This also goes the other way, and we already have at least one infamous example: the Ukraine call transcript.

          One of the whistleblower’s allegations was that classification itself was an obstructive act; the idea that the transcript was ever-increasingly being squirreled away under more and more restrictive classifications.

          Consequently, the context might also allow for fact that something marked with classification markings never should have had them. Also, in general, the US government has long known and accepted that “overclassification” exists as a serious problem and is in itself a threat to US national security.

  20. Kai says:

    Isn’t this shitshow really just a sideshow?

    While I’m sure the DOJ is nonplused at Judge Cannon’s shameless deference to Trump (and I’m being diplomatic here), do we really think they care? I mean, what would happen to this civil proceeding if the DOJ simply indicted Trump? Wouldn’t an indictment, which I’d expect to be filed in Washington DC, essentially moot this civil circus? Stop it in its tracks?

    My guess, as a recovering lawyer, is that the DOJ was laughing at Trump’s having filed the civil case in the first place (at least until Judge Cannon prevented them from using documents in their criminal investigation, which was quickly reversed) and is probably hoping to get some useful information from the Dearie sideshow (e.g., an affidavit from Trump about what he claims was planted or, frankly, anything whatsoever under oath).

    But beyond all that I’m thinking the DOJ is probably (a) waiting out the midterms to avoid unnecessary criticism (notwithstanding the fact that there is no “rule” preventing them from indicting non-candidate Trump) and (b) doing what they usually do–namely, investigating and methodically building an airtight case. Indeed, it’s hard to see an outcome here where Trump is not indicted and we can be sure that the DOJ does not want to embarrass itself with Trump somehow worming himself out of an indictment.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Kai” or “Kailey.” Unique username should also contain a minimum 8 letters. Thanks. /~Rayne]

    • BroD says:

      Well, I think that’s pretty much right. Once DoJ secured the right to continue its work on the the national security and criminal investigation, TFG’s civil case became a side show with Dearie as a hero and Cannon as a clown.

      • Christenson says:

        I disagree:
        It’s facially evident that Trump has violated both the espionage act and the PRA. But prosecuting for the espionage act involves exposing that NDI from at least one of those classified docs that Trump was hoarding… so which intelligence source or method are you going to destroy? Thus, I think DOJ would rather pursue PRA if they possibly can.

        Also, just how and what those classified docs were mixed up with is an important clue to damage assessment for the classified docs…who might Trump have been trying to peddle them to?

        • Thomas Paine says:

          Simple, You pick the piece of NDI the IC tells you Trump has already compromised and include the evidence of who he gave it to. The makes the prosecution and trip to the SuperMax a slam dunk. The indictment is being paced by the Nov. 8 elections. After the election the prelims. are over and the fights on WRT the criminal case.

      • earlofhuntingdon says:

        No. As Peterr has repeatedly and elegantly written, the non-classified documents are an important part of assessing the extent to which national security was breached. They give context for the improper storage of the classified documents, itself a violation of federal rules.

        The content of the non-classified docs – dates, subject matter, authors, recipients – might provide further context on such things as the timing or purposes of having retained the classified documents.

        And btw, Trump’s retention of the non-classified documents is illegal. Additionally, it provided cover for the material omissions in his statements to the FBI, such as describing that his boxes were filled only with the personal and/or low-level presidential or federal records. Technically true, but such statements omit that classified records were also in some of these boxes. And that provides cover for omitting that he illegally retained and improperly stored classified docs in his home office. It’s a cat’s cradle of lies and illegalities that harmed national security.

  21. hollywood says:

    What makes Aileen run?
    The safe path would have been to adopt Dearie’s rulings and proceed ahead. This would show she had some respect for a distinguished jurist and for the law. In the end, this might lead to getting her appointed to the Circuit Court in a few years.
    But why wait? Perhaps Trump or Trump-lite will win the presidency. Then she can lobby to get the desired SCOTUS appointment.
    But was she too hasty? Now, based on her tawdry behavior, if a Dem is elected, she is not going to get elevated anywhere anytime in the foreseeable future. She won’t hit the glass ceiling. She’ll hit the brick wall.

    • 808HL says:

      Cannon will not be nominated for SCOTUS, the Federalist Society has a long enough bench without having to defend her actions.

  22. David says:

    This one is easy. Forget all this crap and just IMPEACH HER

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “David” or “Dave.” Your unique username should consist of a minimum 8 letters. Thanks. /~Rayne]

    • Rayne says:

      Oh right, this one is soooo easy. Forget all your own crap and do the math: impeachment in the House requires a simple majority, but conviction and removal require 2/3rds vote in the Senate or 60 votes minimum.

      Go on, look it up, check the Constitution under Article I, Section 3. Congressional Research Service wrote an overview about impeachment if you need something meatier.

      Because you appear new here, I’ve left these links for you. But don’t waste our valuable time and comment space with uneducated, unresearched blather. The community here expects better than this.

      • Troutwaxer says:

        What you’re missing is that David isn’t wrong.

        The important thing about impeachment isn’t necessarily that we get rid of her. It’s that we make a public bad example of her, and this needs to be done. I don’t care whether she looses her job. (Though that would be nice.) I care that the world can watch her squirm when her motives are interrogated. “Where you blackmailed? Were you bribed? Or were you simply so ambitious that you ignored the law?” I want to watch the light leak out of her eyes as she realizes that the careful asking of questions has made her so toxic that she’ll never, no matter how corrupt the administration, be nominated to the Supreme Court.

        The problem here is that you’re working the equation using arithmetic about how Senators will vote. You’re not working out the politics.

        • Rayne says:

          We’ll agree to disagree. The House impeaching Trump not once but twice without conviction and removal by the Senate left us right where we are now.

          Cannon is unbothered by shame as her actions have proven even after the 11th Circuit gave her a comeuppance. She should be removed and prevented from holding public office and impeachment alone doesn’t do that.

        • posaune says:

          Rayne@ 12:34
          Right on the mark, Rayne re “shame”
          These people have absolutely NO capacity for shame! None at all. (and no guilt either).

        • Troutwaxer says:

          What I’m sure of is that the Democrats doing the impeachments got the politics wrong as well – but having said that I’ll let it go.

    • bmaz says:

      Hi David, this is truly beyond silly. You want Congress, especially the Senate, to waste precious time on an impossible impeachment attempt on Cannon? How about instead we have them do their actual jobs, especially the Senate in confirming better judges for all the currently open seats. That is one hell of a lot more important than some idiotic failed impeachment play on a common district judge. Being a bad judge you disagree with is not even a proper basis to discuss impeachment. Where did you come from?

  23. Estragon says:

    As dr ew as pointed out in the past, this isn’t about the frcps, or rule 41, or the 11th, or even the supremes. This is about power— political power— and its being exercised. The impunity is the point, a point which judge cannon gets well and truly. We’ve come to a dangerous place.

    I imagine trusty kind of like:

    “My guys are under a judicial restrangement order! That blue thing I got from her!”

    – Louis Tully

  24. Mr. Slippery says:

    IANAL, but isn’t the burden supposed to be on the plaintiff to first prove that their complaint has supporting evidence behind it, and then the defense has the chance to try to refute and poke holes in that? What evidence has the plaintiff submitted that supports their complaint? Mere accusations without sworn testimony provided are not admissible, correct? If the plaintiff refuses to submit any substantiation, don’t they just lose the case? The defense can simply rest; there is nothing to counter…?

  25. Puriya says:

    Perhaps Cannon has had some threats from MAGA folks. Or fears them. If she had originally ruled that this was out of her jurisdiction, they might have ignored her, but if now Trump doesn’t benefit from her, they will be pretty mad.

    I had another thought that is somewhat worrying. Could Cannon rule on the non-classified docs in some manner that would make a material difference to the DoJ case? For example, could she give all the non-classified docs back to Trump?

    • nedu says:

      To the extent that the seized materials contain presidential records within the meaning of the Presidential Records Act of 1978 (PRA, 44 USC ch.22), the answer to, “[C]ould she give all the non-classified docs back to Trump?”, seems a reasonably certain, simple, ‘No’.

      I’ll qualify that ‘No’ by saying that it’s conceivable that Judge Cannon might attempt to return records owned by the United States to Trump, but if she did, I am reasonably confident that she would be reversed on appeal. And I’ll further qualify that ‘No’ by saying that the current Supreme Court could conceivably declare the PRA unconstitutional, although that possibility seems about as remote as the possibility that Trump’s supporters could successfully achieve victory in an armed insurrection….

  26. Mister Sterling says:

    Fine. Let this civil case go the way Cannon wants. Let it delay a national security investigation. Let Trump win for a little while. But no one should be worried about Cannon becoming a future Supreme. That will not happen. There probably won’t be a republic left standing by 2025. Also, I cannot see Cannon succeeding in giving stolen documents back to Trump with the high court supporting that insane action. So worry not. This civil case has become a sideshow. Either the DOJ will indict or they won’t, bottom line.

  27. Jared Shoemaker Jr says:

    What’s the over under on the DOJ saying just fuck this and going to the 11th circuit and ending this farce and getting cannon’s ruling tossed?

      • Jared Shoemaker Jr says:

        So pretty good DOJ says enough and goes back to the 11th circuit and they just toss her entire order whole hog?

        • nedu says:

          Sorry I didn’t see your reply earlier.

          The particular order (DE 125) we’re discussing here doesn’t appear to be an injunction. And Judge Cannon didn’t state her opinion in writing DE 125 that an immediate appeal would be helpful….

          However, DoJ is already in the 11th Circuit. They’re appealing DE 64. And in their Sep 20: DOJ 11th Circuit reply, on p.7 (p.9 in PDF), they emphasize that § 1292(a) applies to “orders”. Then, they argue:

          [The 11th Circuit] has jurisdiction to review the entire order[(DE 64)]—including the portion directing that “[a] special master shall be appointed to review the seized property.”

          DE 125, of course, is not DE 64. But DE 125 depends on DE 64. The Special Master’s Amended Case Management Plan doesn’t mean very much without the Special Master’s appointment.

          Gambling odds on where the 11th Circuit will ultimately go might be a question of Los Vegas versus Reno. Lot of empty desert out there when you’re heading north of Vegas…

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