“Somewhat Convoluted:” Debunking the Judge Cannon Claims
Before I went to sleep last night, I suggested there was some suspense about whether journalists would accurately report the power grab Judge Aileen Cannon made yesterday. Who was I kidding? Rather than report what happened, virtually all news coverage simply quoted what Cannon claimed she had done. Not only didn’t the press call out Cannon’s own misrepresentations, but they introduced some of their own.
First, some outlets had suggested that Raymond Dearie had set really aggressive deadlines and Cannon simply altered them. That’s not really accurate. Cannon definitely tweaked with how Dearie would deal with the disputes (mandating a single report from Trump rather than cascading productions, a decision that Trump will cite next month when they ask for an extension). But her original order didn’t mandate any interim deadlines on the review itself (meaning, she can’t say the delay in hiring a vendor changed her own timeline); she just gave Raymond Dearie deadlines and timeframes during which the parties could challenge his decisions. The new interim deadlines she provided are premised on when Trump first receives the materials, so the delay Trump introduced by stalling on a vendor may not affect the process all that much. Dearie’s own deadlines were timed to meet Cannon’s deadline. So effectively, Cannon has simply arbitrarily extended her own deadline by 17 days, from November 30 to December 16.
Finally, in light of delays in securing an appropriate vendor to scan and make available the Seized Materials to Plaintiff and the Special Master, and recognizing the more precise quantification of the implicated pages of material [ECF No. 123 p. 1 (describing that the 11,000 documents approximate 200,000 pages of materials)], the Court hereby extends the end date for completion of the Special Master’s review and classifications from the prior date of November 30, 2022 [ECF No. 91 p. 5], to December 16, 2022. This modest enlargement is necessary to permit adequate time for the Special Master’s review and recommendations given the circumstances as they have evolved since entry of the Appointment Order.
As I note below, that happens to delay the end of Dearie’s work until after such time as the appeal will be fully briefed.
Cannon bases her timeline on three things. First, there’s the delay Trump introduced in getting a vendor (a delay Jim Trusty telegraphed at the hearing before Dearie). Cannon currently envisions the two sides having to agree on a vendor, so Trump may be able to delay the process further still.
Cannon also bought Trump’s claim there are 200,000 pages of materials. As I’ll show in a follow-up, she timed her order in such a way as to prevent DOJ from correcting this claim. I suspect it comes from a draft work order DOJ gave to Trump, but we shall see if and when DOJ explains that it’s impossible for there to be 200,000 documents in the 27 seized boxes plus Trump’s desk drawers.
Cannon also has decided that it will take three weeks to do the review based off her claim that it took DOJ three weeks to do a preliminary review of the seized material.
For context, it took Defendant’s Investigative Team approximately three weeks to complete its preliminary review of the Seized Material [ECF No. 39 p. 1].
She bases that off the interim status report from DOJ, which doesn’t say how long the review took. Rather, it says,
As of the date of this filing, the investigative team has completed a preliminary review of the materials seized pursuant to the search warrant executed on August 8, 2022, with the exception of any potentially attorney-client privileged materials that, pursuant to the filter protocols set forth in the search warrant affidavit, have not been provided to the investigative team.
DOJ would have said the same thing whether they finished their review minutes before filing this status report or two weeks earlier. Cannon simply invented the claim that DOJ had only just finished the review on August 30, three weeks after the seizure.
Cannon likewise misrepresents the nature of Trump’s objection to the inventory review and what the inventory review would have been (and reporters made her misrepresentation worse).
In addition to requiring Defendant to attest to the accuracy of the Inventory, the Plan also requires Plaintiff, on or before September 30, 2022, to lodge objections to the Inventory’s substantive contents.2
[snip]
Plaintiff objects to the pre-review Inventory objection requirement, citing the Court’s Order Appointing Special Master [ECF No. 91] and the current inability to access the Seized Materials [ECF No. 123-1 p. 1].
[snip]
There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents.
2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].
Here’s what Trump’s objection actually said:
To help find facts, the appointing order authorized a declaration or affidavit by a Government official regarding the accuracy of the Detailed Property Inventory [ECF 39-1] as to whether it represents a full and accurate accounting of the property seized from Mara-Lago. Appointing Order ¶ 2(a). The Appointing Order contemplated no corresponding declaration or affidavit by Plaintiff, and because the Special Master’s case management plan exceeds the grant of authority from the District Court on this issue, Plaintiff must object. Additionally, the Plaintiff currently has no means of accessing the documents bearing classification markings, which would be necessary to complete any such certification by September 30, the currently proposed date of completion. [my emphasis]
The material he couldn’t review was limited to documents with classification markings, not the documents as a whole. And as Cannon notes in a footnote (there’s a reason it’s in the footnote, which I’ll come back to in a follow-up), Dearie had given Trump the same four days after receiving the materials to review the inventory after he adjusted the deadlines. In spite of the fact that Dearie’s most recent order only envisioned this verification to happen after Trump got the material, Cannon calls it a “pre-review” and “ex ante” process, suggesting Trump would have had to verify the inventory blind.
Perhaps Cannon’s most cynical move, however, came in her order dismissing Dearie’s suggestion that the two sides might have to brief whether Trump should file a Rule 41(g) in this court or before Bruce Reinhart.
As explained in the Court’s previous Order, Plaintiff properly brought this action in the district where Plaintiff’s property was seized [see ECF No. 64 p. 7 n.7 (citing Fed. R. Crim. P. 41(g); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976); In the Matter of John Bennett, No. 12-61499-CIV-RSR, ECF No. 1 (S.D. Fla. July 31, 2012))].
The 11th Circuit has already ruled that intervening absent any evidence of callous disregard for Trump’s rights was an abuse of discretion.
We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted).
Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406
Even ignoring that two Trump appointees have already told Cannon she was wrong, the sentence before the one Cannon cites here notes the absurdity of filing for a Special Master and a Rule 41(g) motion in the same effort, calling it “somewhat convoluted.”
As previewed, Plaintiff initiated this action with a hybrid motion that seeks independent review of the property seized from his residence on August 8, 2022, a temporary injunction on any further review by the Government in the meantime, and ultimately the return of the seized property under Rule 41(g) of the Federal Rules of Criminal Procedure. 6 Though somewhat convoluted, this filing is procedurally permissible7 and creates an action in equity.
Yet even after straining to approve this in her first review and then getting smacked down by the 11th, Cannon still persists in envisioning that she’ll be able to take government property and give it to Trump.
I suspect Cannon’s wrong about at least one more thing — whether Trump has complied with his deadline to mark privileged material. These issues, however, all exhibit the same dishonesty we’ve seen in the past.
Yet the very same press that Judge Cannon is blowing off nevertheless failed to identify any of these problems.
Current Schedule
September 26: Trump provides designations on potentially privileged materials
October 3: Both sides identify areas of dispute on potentially privileged designations
October 5: Finalize a vendor (Cannon fashions this as a common agreement, giving Trump ability to delay some more)
October 13: DOJ provides materials to Trump (Cannon does not note this does not include classified documents)
By October 14: DOJ provides notice of completion that Trump has received all seized documents
October 19: Deadline for DOJ appeal to 11th Circuit
21 days after notice of completion (November 4): Trump provides designations to DOJ
November 8: Election Day
10 days after receiving designations (November 14): Both sides provide disputes to Dearie
30 days after DOJ appeal (November 18): Trump reply to 11th Circuit
21 days after Trump reply (December 9): DOJ reply to 11th Circuit
December 16: Dearie provides recommendations to Cannon
January 3: New Congress sworn in
No deadline whatsoever: Cannon rules on Dearie’s recommendations
Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion
Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion
Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)
![[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]](https://www.emptywheel.net/wp-content/uploads/2017/08/NationalSecurityAgency_HQ-FortMeadeMD_Wikimedia-80x80.jpg)
On your point and quote about her jurisdiction in a civil matter to entertain a Rule 41(g) motion for return of seized property, Cannon gives two citations: US v. Wilson and In the Matter of John Bennett.
Wilson is a DC Cir. case from 1976. Fair enough, a tad old, but it’s not really helpful on the merits. Same with Bennett, because both dealt with property the government admitted belonged to the person from whom it was seized. Here, the government’s position is that Trump has no right, title or interest in the seized records, other than his personal records.
But Cannon’s Bennett citation is to a fucking pleading, a 65-page petition for the return of his property. Cannon does Not cite the judgment on that petition, which came down a year later, in July 2013, which is the actual precedent in SDFL. (https://casetext.com/case/bennett-v-united-states-43)
Apart from displaying her bias, gilding the lily at this point, it’s as if Cannon is giving elementary instructions to Trump’s lawyers, “If you follow the arguments in this petition, I might rule favorably on your own Rule 41(g) motion.”
Cannon must be interested in Bennett’s 2012 petition for return of his seized documents, but not the Bennett court’s 2013 judgment, which offers her no help.
It found Bennett’s arguments under Richey unpersuasive and refused his petition. It held that, even after two years with no indictment, the government still had a sufficient investigatory interest that it could continue to retain and use the seized documents.
The absurdity of it all is that had Trump simply left all the records with NARA, there’s good chance that NARA within two year’s time would have given it all back to his Presidential Library, lol.
Unsurprisingly for a guy who reads so little, Trump appears to have no current plans for a Presidential Library. I suspect he would rather focus the usual fundraising for such things on enriching himself and any purported campaign chest.
His presidential records would remain the property of the USG. What would change over time is greater public access.
Trump doesn’t want a library, It is all in his head. He is a walking, talking library that people can pay to see. Let’s take that show on the road!! No one wants a boring library… unless it is named after him and he gets licensing rights and a developer’s fee.
I’m pretty sure that NARA controls presidential records that are considered part of presidential libraries.
There has been lots of speculation about why he even tried to keep this stuff. He’s got a history of blackmailing people ( See Christine (sic) Todd Whitman) and he broke plenty of laws. Its entirely possible that he’s trying to keep incriminating documents out of official hands, and that he would not have gotten control of the docs had they spent a year or two with NARA.
Similar orders will almost certainly continue and may provide DOJ the ammunition to ask the 11th Circuit to reassign the case in addition to any other relief that they request. (It’s a step they will take unwillingly if at all.)
On the 200K pages, I will repeat an observation I made yesterday, that the entire trick appears to lie in the phrase 200,000 pages equivalent. If you (unstated) use a typical double spaced typed page as you standard page equivalent of 250 words per page, then you can get to 200K pages equivalent fairly easily with material like newspaper pages which average from 1500 to 3000 words per page, and even single spaced material has double the words per page. It’s cheap gamesmanship because the review here is like putting together a Vaughn list (a privilege list) where you are applying your criteria on a per document basis. Once you settle on your criteria the application process is pretty quick: think of a page of newspaper, how much time do you spend dealing with it once you have decided how such documents are treated.
As to Cannon, I am hard pressed to come up with a prior situation where I have seen the likes of it.
So you are saying the “200,000” claim comes from something like the high schooler who needs to make his two page report into five pages like the teacher asked, so he makes all his margins 3″ and uses a 14 font and 2.5 line spacing?
Even if the “200,000 pages” consisted of 100,000 sheets of 8.5 X 11 paper printed both sides, it would occupy 20 cartons of paper packaged as densely as new printer paper.
If I recall correctly, didn’t Trmp do a press show ‘n’ tell with a large stack of blank paper he and his minions represented as his tax documents? Incidentally, his taxes are eternally in audit and thus, according to him, can’t be released which, I guess, is why Congress still hasn’t seen them (at least, last time I checked).
Which is pretty hard to do, as the reams as packaged have no air between sheets – that’s why they get riffled before going into the trays. (Otherwise they *will* stick together.)
All this above doesn’t make much sense. Doesn’t the DOJ have some idea of how many pieces of paper there are? Spreadsheet entries that say something like “TITLE: Agricultural Briefing on 2019 Avocado Crop.” “PAGES: 17” in which “TITLE” and “PAGES” represent column headings?
So am I understanding correctly that this completely lets Trump off the hook to certify that the list of documents is accurate? Or does it simply delay when he has to certify such a thing? I’m asking because you pointed out in a different post that if he certifies the accuracy of the list, he’s admitting to the crime of retaining NDI and other government records, as well as to obstruction by not responding correctly to the subpoena.
Maybe asked another way: did the 11th circuit let him off the hook in a way too? By removing the classified docs from the SM review, he no longer has to certify that he had them? In public he seems to have admitted to retaining them (his whole mental power of declassification interview) but perhaps that’s not enough of an admission?
OK, I hope I’m not asking too many questions in a single post, but I also am curious about the whole removal of the batch process into one single giant batch. Does that have the effect of delaying the investigation more too? I.e. if a batch had been completed, and the SM ruled that documents were not to be returned, would that have allowed the government to use that batch of documents in its investigation (which, as I believe Peterr has described, is necessary to do the investigation well)?
Moderators, please admonish me if I’m conflating too many topics in a single post (or asking silly questions etc).
You’re good.
I think Cannon intends to let him claim that DOJ misstated stuff later–even if it’s just by labeling all this as govt docs when, he says, they belong to him. Once he makes that claim, Cannon will argue that the search was abusive.
As for the 11th, they did what they needed to do. The stay was really urgent.
TY
So if the search is abusive, or some FBI/DOJ person saw something privileged (or supposedly privileged), then the whole investigation is tainted and voilà, investigation tossed? Or maybe enough doubt in a future jury’s mind even in DC or other jurisdiction?
No. The normal consequence for an abusive search is that the records seized cannot be used in court by the prosecution. A final ruling that holds up on appeal on that point, improbable at best, would affect only the use of these records, not necessarily the prosecution as a whole.
There’s also the basic issue that the vast majority of these documents appear to be presidential or federal records. Regardless of Trump’s punishment for retaining and using them, they need to be stored properly and ultimately returned to the USG. Nothing but personal or legitimately A/C or work product privileged documents, the latter a vanishingly small number, belong to Trump.
If this process discloses a gap in the legal structure surrounding the unlawful taking, retention, use, and/or obstruction regarding these documents, Congress needs to fill it.
I apologize, earlofhuntingdon, I’m too new here as a commenter (despite having read the site for years) to be glib, as I was being above, without saying that’s what I’m doing. Also, generally speaking, I try not to be glib as I fear distracting from the seriousness of the conversation.
But I really appreciate the points you raise here, as I think I (like maybe many others out there) can sometimes lose track of the forest for the trees.
No worries. I’m just visiting, too. Join in.
> The normal consequence for…
United States v Leon (1984)
We’re not talking about a warrant so facially lacking in indicia of probable cause that no reasonable officer could credit its validity.(*)
(*) From memory–please be sure to check the correct phrasing, relevance and applicability.
“From memory” there should read “straight and directly from memory.”
Looking a little more closely, it now seems facially apparent that I didn’t even completely read the syllabus before hitting post on that last one… Must be time to brush up again. Sorry.
I believe Leon is considered a pro-law enforcement reduction in the reach of the exclusionary rule. “Good faith exceptions” can grow exponentially.
Leon and its progeny…
Fwiw, let me highly recommend someone who, imho, is one of the real experts (which I am not), while noting that his blog’s about page does state very clearly:
But it’s still worth looking at, and if you haven’t been there recently, then take some time to see the older posts link.
I see several things going on here: 1) hope against hope that an in-the-bag judge (Cannon) rules totally in their favor (tossing warrant) and is upheld on appeal (not likely); 2) failing that, creation of a sideshow á là Carter Page FISA warrant, Strzok/Page emails, Hunter laptop to keep the pot boiling and fundraise; 3) as always, run the clock and hope the cavalry arrives in the form of House Judiciary Chairman Jim Jordan.
Proceeding on your point about the warrant…
First, the case is in pre-indictment, 41(g) context. However, let’s set that aside and hypothetically suppose Trump is making a suppression motion in a trial, say S.D. Florida, or somewhere in the 11th Circuit(*).
Trump’s first argument is overbreadth. See DE 1 pp.11-12.
Additionally, Trump may be asking for a Franks hearing? See DE 1 pp.12-13? I can haz Franks?
Ok. So Trump’s argument is overbreadth. See DE 1 pp.11-12.
Ok. So maybe the warrant’s overbroad — I mean who knows? Maybe it is, maybe it isn’t, I don’t know, who cares, really.
Just what happens in this hypothetical scenario… normally. In the 11th Circuit. Does he succeed on the motion to suppress? What gets suppressed, does everything seized get suppressed?
I took one, completely non-expert, one look at this pattern, and got an answer straight and direct from my fallible memory — in the simple, immediate form of a case name. That was an intuitive leap. Actually reading what the law says in the 11th Circuit takes quite a bit more plodding than that.
So, maybe someone here wants to criticize the starting assumptions or fight the hypothetical? Show that Trump could get evidence admissible at trial, returned to him under 41(g)? If there’s something wrong there, then that’d moot carefully reading the 11th Circuit on this.
((*) Just never mind that the limited public release of grand jury -related proceedings have been from Beryl Howell’s court in D.C. This hypothetical is set in S.D. Fla.)
Am I wrong in assuming there’s a mountain of case law that would support this search? Also, I see your point, emptywheel. Terrifying.
They are pushing DOJ to file a full appeal, even to the full 11th Circuit. Cannon is grossly incompetent at best. I remember emails fighting her confirmation. But to cite a pleading and NOT the final judgment is gross incompetence. Error after error after error, even the decision by the 11th Circuit that Cannon has no jurisdiction. I suspect our only hope is that DOJ has enough to indict with prior evidence and the classified docs in the August 8 search. Question: does the entire tranche of documents that belong in the Archives mean a D.C. Circuit suit brought by DOJ?
NDI is a completely separate condition, although typically a subset of, classification; you can have non-, or unclassified NDI just as easily as one can have classified information that holds no NDI whatsoever.
NDI is a fundamental fact feature of information that might be within a given document. Classification is an Executive Branch process for regulating national security and State secrets originating entirely out of Presidential Executive powers. Often and commonly, NDI is classified.
While there is a lot of overlap in laymen terms and meaning, the statutory definition of “national defense information” does not always or exactly match the boundaries of why something may have been classified (or declassified, or left unclassified).
Great point.
The whole “watch what she does, not what she says” thing really comes home when you look at what Cannon did with Dearie’s procedural order to the Trump team to release their designations of each document’s privilege status on a rolling basis. This would allow the DOJ to begin to compare their own designations of those documents while Trump continues working on the rest, thus moving along the process of figuring out where the parties agree and where they disagree expeditiously.
Cannon overruled this, expressing a most deceptive rationale for doing so:
This has nothing to do with deadlines – it’s about moving through a big stack of docs, and Dearie was clear that there is one deadline for completion.
This has nothing to do with enhancing organization – the spreadsheet Dearie mandated 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 at the last possible minute.
What this does is force DOJ and Dearie to accept all of Trump’s work all at once, which serves quite nicely to reduce the amount of time DOJ and Dearie have to sift through what Trump proposes.
This is *not* in the interests of justice; it solely exists to serve the interests of the former president.
Yup. It also prevents Dearie from making an initial ruling (say, none of this is EP) that then moots the remaining questions. And ensures that any designations post-date the election.
Why is the timing of these proceedings to the mid-term elections crucial? Is it because of oversight by a new Congress after Jan 3rd, 2023 could effect DOJs ability to prosecute? Or is it because TFG may announce his candidacy after the midterms and hopes the DOJ will be reluctant to prosecute a political candidate? Or is there another reason?
Nothing logical has anything whatsoever to do with “mid-term elections”. Trump is not on any ballot. This is complete baloney and should not be bought in to nor propagated.
It’s to keep Trump from looking any worse before the election, to keep his cult followers engaged.
It’s not about Trump’s possible candidacy or the DoJ’s practice, inconsistently adhered to, of not taking overt actions shortly before elections. It’s straight politics.
Further revelations about Trump’s misdeeds could depress the Republican voter turnout or enhance the Democratic turnout. The Republicans were hoping to flip one or both houses. Now, they might be lucky to keep their present share of both.
Press coverage will need to stand in to raise the pressure. As EW discussed in the last post, so far the courtier press has failed its job massively but leaving things in limbo like Cannon has done invites leaks (by Trusty, et al) and Individual-1 to gloat inconveniently.
Eventually even Chuckles Todd will start to ask pointed questions (that’s my sign that it’s over for TFG) but in the meantime, the Ds need to hammer away on Cannon’s actions being a sign of total GQP corruption by referencing what EW has laid out in this shebeen (h/t Charlie Pierce).
I think the only real election date issue is whether decisions are in the news or not before people vote.
it seemed to me that the AP coverage addressed these contradictions adequately —
https://apnews.com/article/donald-trump-mar-a-lago-criminal-investigations-government-and-politics-d25dc93f788b5b4a422f3c0568ef1121
I’m sorry, but reporting like that makes people feel informed but actually dumber, a dangerous state of affairs. From that article, one would conclude that an honest difference of opinion exists between equally competent and honest lawyers and judges, and that the battle is being fought honestly through a functioning legal system. No, it doesn’t “address the contradictions adequately.”
This phrase from the opening paragraph captures the opacity
This is the definition of both-sides-ism. It sounds as though this is about personal animosity or differences of opinion rather than one side continuing a years-long strategy to upend US institutions through rank dishonesty and stunning disrespect for precedent and procedure.
You are certainly welcome to your opinion, but how do you suggest AP characterize the relationship between the DOJ and Trump’s lawyers? Simmering tension is trite, but it is certainly true, this is an adversarial situation.
I’m not speaking for the Doctor, but I do think he or she raises a valid point re: that AP story. IMO, it’s like asking two scientists their thoughts on whether the Earth is round or flat. The AP takes at face value both “theories”…but does not make any mention on the validity of one theory over the other. I guess journalists think they’re being “fair”, but it’s a disservice to their readers because there’s no explanation of why one theory is more accurate than the other, i.e. statements from other round Earther scientists who have an actual grasp of science.
It is interesting how many interpretations a simple recitation of fact can produce. So, because AP does not follow what you perceive to be the way the story should read, it misinforms dumbies. Gotcha.
Not what was said at all, which begs for the question, what is your agenda here?
“I’m sorry, but reporting like that makes people feel informed but actually dumber” Not what was said?
Your interpretation – if you were honest you would have acknowledged same – is the issue.
But as trolling seems your agenda, have at it.
I can ignore your posts, and shall hereafter.
Yup. This is the thing that really torques me off.
Say, for example, Dearie says “let’s see how this goes… let’s start with these two boxes.” Doable in two weeks (based on the mechanics, not the legal gyrations.) My guess is that Trump would quickly lose interest in the entire enterprise.
Without seeing the documents, I wonder if someone, somewhere in this process has subdivided physical items into constituent Records’ Act and espionage statute elements.
That is, say a physical copy of the readout of “the Perfect Ukraine Call” that might be three printed pages, stamped with a multitude of classification markings, but has handwritten Trump doodles in Sharpie on two of those three pages. Could that one document of three hardcopy pages be counted as say three separate documents: the original three-page classified readout, plus Trump doodle 1, plus Trump doodle 2? The original might be considered by some as one Record category, while the others might fall into other (and different) Records Act categories.
I have no idea if this was how it’s counted or not, but it gives me an appreciation for the difficulty that NARA generally might face.
ok, so why…why is this particular judge acting in this manner? Is it simply partisan politics? What else could be driving this blatant corruption?
Partisan Federalist Society politics, and likely a dream of getting boosted to an appellate judgeship or a seat on SCOTUS.
For argument’s sake, did Dearie unnecessarily open the door for Cannon to do this? Had Dearie, pursuant to 2(a) of the appointment order, simply verified (via DOJ affidavits) the inventory and proceeded, we wouldn’t be having this discussion, would we? If Trump objected in the future, Dearie could (would) still compel him to put up facts.
Dearie didn’t open any doors. Cannon owns the whole process, and she is taking full advantage of that authority.
And yes, we would be having this discussion. Dearie made several run-of-the-mill procedural orders, the kind made in all manner of other cases involving large numbers of documents, and Cannon decided that this was not the way she wanted it done. If it wasn’t this, it would be something else. It is becoming clearer with each ruling that she has a particular end in mind here, and no one will get in her way. A few more rulings like this, and she might as well have told Trump to pound sand when he wanted a Special Master.
Oh, and one more thing: the next time Cannon wants to appoint a special master in some future case, she’s going to have a helluva time convincing someone to take the job. If she’s going to dump like this on a federal judge with 36 years of service, including 4 years as the chief judge of the EDNY circuit and 6 years as a judge on the FISA court, almost any other judge or lawyer is going to say “I appreciate the honor of you thinking of me, but I’ll pass, thanks.”
An honorable judge would respond so, yes. Wouldn’t a partisan judge like Cannon leap at the chance to curry favor with the Federalist Society & the Trump cult?
At the cost of their own dignity and reputation? Perhaps, but I think it far more likely they’d let someone else take that leap.
So you don’t think there are many like Cannon, even among all those judges the republicans rammed through at the end of Trump’s term? She doesn’t appear to care about her dignity or reputation outside her own clique, and she’s from that batch of appointments iirc.
I hope you’re right! Your optimism comforts me, even though I remain doubtful.
Two of the three 11th circuit court of appeals judges that slapped Cannon down among those Trump appointees you speak of. They are certainly not folks I would have nominated to be judges, but Cannon went too far, and was too sloppy about it, even for them.
This is especially germaine, since Cannon willfully ignored the decision by the 11th Circuit on many counts. Her goal is a full appeal which will delay the proceedings until a Repub(!) is back in the presidency. And as is typical of the Federalist Society nominees, integrity is not a prerequisite to being a federal judge. It’s about partisan agenda, full stop.
We agree that Cannon’s performance to date has been execrable. (It raises the perennial question: intellectually & ethically bankrupt, dim, or both? For a different time and place….) We probably even agree on the following reasonable inferences pertaining to Dearie: (1) Through due diligence, he knows Cannon’s background and how she got where she is. (2) He’s familiar with Trump and his decades of (mis)use of judicial processes. (3) Experienced jurist that he is, he knows smoke-blowing when he sees it; he also knows when someone’s stalling. (4) He’s familiar with Cannon’s work product on the case, and with the 11th Circuit decision. (5) He knows Cannon has reserved for herself the discretion to fire him.
In light of that, did he unnecessarily stick his head above the parapet thereby giving Cannon the chance to make things worse? Had Dearie stuck to doing what Section 2(a) of Cannon’s order required of him, i.e., for him to verify the inventory using affidavits from DOJ, Trump’s allegation that Dearie had exceeded the authority originally prescribed for him by Cannon would’ve been pure nonsense. But requiring Trump to identify errors in the inventory BEFORE Dearie’s verification let Trump object the way he did. In turn, that gave Cannon yet another chance to run her loyalty to him up the flagpole. Had Dearie not done that, Trump would’ve had to allege facts to support an objection to the inventory in any event. Granted, it makes more sense — in the context of defining the universe of materials that Dearie is supposed to review — to have everyone agree on that definition BEFORE the review begins. But given the players involved, keeping the powder dry until Trump objected might have avoided this latest waste of time.
I keep thinking a time will come when the press stops bending into pretzels to make Trump seem sensible and normal, just another US politician with a right wing agenda. I guess it will never happen. Trump does crazy irrational stuff, and the media twists it into something normal and sensible. Any time I read a phrase like “Trump is considering”, written as though Trump is thinking objectively about some issue instead of behaving the way we all know he behaves, it makes me crazy. And now we have an extension of this to the judicial sphere—the press treating corrupt behavior based on pure self-interest as honest application of the law.
I had an interesting conversation with my niece, who is a psychiatrist, about the clinical meaning of “detached from reality” and/or “crazy / irrational.” It seems in the mental health field, these concepts are not defined objectively, but in terms of ability to function in society (which again is largely defined as staying out of prison or the largely non-existent mental health system). In other words, from a clinical viewpoint, it seems acceptable to believe in alien lizard people overlords, Q-Anon style cabals of powerful pedophile politicians, etc. and avoid the label “crazy/irrational” as long as you have a job or independent wealth. We truly inhabit a world with disposable objective reality, and not just in politics.
I’m not sure I have a problem with that “clinical viewpoint” as you describe it. What is the alternative?
One person’s irrational belief is another person’s … (steps away from the minefield).
Precisely. Most of my friends believe that their parish priest can transform a wafer into the flesh of a two-thousand-year-old itinerant preacher. We don’t call that a delusion; we call it an Article of Faith.
I would bet that most of them don’t actually believe it.
It is true because you believe it, not because it is true.
Crazy/irrational people believe in crazy irrational things, at least that is what I believe. “It’s pretty, but is it art?” Rudyard Kipling/Devil
[Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve commented previously as “spirilis.” Thanks. /~Rayne]
Game theory, the difficulty presented by an irrational actor.
“You’re not crazy, your cheque cleared” said the Psychiatrist.
Was it the author Harry Crews who wrote that “the insane are only tolerated within the circles of the very rich, and the very poor”?
Trump is hugely entertaining, even to people who fear and loathe him.
And the corporate media (no longer a free press if they ever were) is all about entertainment and advertising dollars. Trump is wonderful for their ad revenues.The owners of the corporate media are short-sighted and of limited imagination. Like a lot of criminals, they can’t clearly visualize the real consequences of their actions. Or care.
That may be true for some, but I don’t find him entertaining at all. I never have. He is a weak, cowardly, predatory, lying bully. I do not fear him one bit. I fear his hold over millions of our countrymen. I do loathe him, but, even more, loathe the system that has allowed him to get away with his almost inconceivable litany of crimes and those of his genetic backwash spawn for decades.
I long for the day where I don’t have to hear their name or his creepy voice ever again. At 72, I’m not sure I will have that pleasure.
I am simply pointing out the complexities of attempting to maintain a legal system ostensibly based on facts, logic, and reason in a society where a significant portion of the population, including many individuals in all levels of the judiciary up to and including the Supreme Court, simply reject facts, logic, and reason as a basis of decision making. I frequently express my opinion that we are simply witnessing yet another battle in the long running conflict called “The Enlightenment.”
If judges are appointed by the governing political party, and if one of the parties becomes detached from reality, then yes bad things will quickly happen.
Are judicial appointments in any other Western countries as explicitly political as they are in the US??
In New Zealand the Attorney-General,the Chief Justice and the Solicitor-General recommend other judges for appointment to the Governor-General..
Judicial appointments in NZ are non-political..
There is no press; there is only the circus and it’s myriad of clowns.
So you dont consider Empty Wheel press?
Part of the Circus for sure and also infinitely entertaining!
Exceptional reporting as we have come to expect!
Cannon’s actions are convincing me what has been my rolling supposition since day one – the FBI caught him completely by surprise, and he has to somehow quash the other docs because they are so incriminating of the other investigations, and maybe a few more thrown in.
He was in possession of 100+ classified docs. Goose cooked. But now this side show? I think they got the crown jewels. Or, short of that other documents that are so politically damaging he would never survive. Cannon wouldn’t be this far out on the limb if it wasn’t bad.
Recall, though, that Cannon has not seen the docs. She’s just seen how Team Trump is loudly and relentlessly complaining about the FBI acting to retrieve what Trump tried to steal, and then acting under the formal legal principle of “Where there’s whingeing, there must be a fire.”
Excellent clarification of the picture. Thanks.
I’m of the view that this could well be a coordinated effort. Sure it’s possible Cannon is acting alone here, but I’m skeptical.
Appointed to oversee the district containing MAL in December 2020. If it quacks like a duck..
Actually, Cannon’s a newbie judge in SDFL. Her one-judge office is over an hour’s drive from MAL, not in Trump’s backyard.
Trump forum-shopped her, but the quid pro quo is not as obvious as, “You get the job, only if you protect my ass when the DoJ comes calling.” But Cannon is transparently trying to sell herself as a loyal member of the tribe. The Fifth Cir.’s Judge Ho has been doing that for years.
Ho is a LOT worse than Cannon.
Let’s pray on that, your honor.
It appears to me to be even simpler than that.
This case is Cannon’s first (and probably best, in her view) opportunity to file her written application for the next SCOTUS seat to become available under any future Republican president.
She’s not responding to how loudly Trump’s complains. She’s extrapolating even beyond what he requests and giving him that, in hopes that someone will give her the job she *really* wants.
It should be read as a job application, not a bad attempt at a reasoned legal decision.
I think Cannon wants everything in “one final comprehensive log” for another reason. It will allow her to create an example from one, or a small number, of what she decides are miscategorized documents. First, she’ll say the government was wrong as to that small subset of paper. Then she’ll then parlay that into a reason to invalidate the search as to thousands of other documents which were legitimate subjects of the warrant.
She’s done this “just a few examples” thing in her previous orders. And I’m concerned that the media outlets will jump on her bandwagon rather than looking at the issue in context.
A rolling process would much more likely to produce a drip-drip of information favorable to the DOJ. It would not allow this sort of conflation/obfuscation.
Cannon has been obstructing and delaying DOJ since day 1 and now she has extended obstruction & delays to the SM she selected. It sounds to me, a layman, like her legal arguments for most of her actions are flimsy or non-existent but it doesn’t matter, she’s shameless. Left to her own devices, she’ll continue this process indefinitely. When Dearie approaches completion in December I think she’ll replace him with another SM and start the process all over again.
DOJ has to put Cannon in the rear view mirror and pursue justice without fear or favor in a reputable courtroom, this is a truly corrupt sideshow.
Since the 11th circuit split off the classified material from the special master process, does this latest Cannon ruling meaningfully hinder DOJ’s investigation into the espionage act/obstruction that prompted the original search warrant? If I have it right, she’s letting Trump off the hook on setting out what he’s claiming privilege over and delaying the whole review she set in place. But how much does that matter to DOJ at this point? Or is this mainly an example of much of the media just repeats stuff and does not provide the critical analysis that we find here? The comments here are always informative-thanks.
Peterr, cmarlowe and earlofhuntindon have already anticipated your question and answered it among the comments in this linked thread:
https://www.emptywheel.net/2022/09/29/aileen-cannon-stomps-on-the-scales-of-trumpy-injustice/#comment-963973
Thank you.
This may be a dumb question, but do we know that there is no classified material in the remaining (i.e., not marked classified) documents that are to be reviewed? Would the initial survey by the DOJ have picked up classified material without markings?
Note: It has been many years since I have commented on emptywheel, likely before this website existed. I don’t remember what username I used back then. If I continue to comment, I will try to avoid saying anything too stupid.
[Welcome back to emptywheel. Long time no see! You’ve commented here as Hank G. and hankgillette, most often the latter. Please pick one of the two usernames with 8 letters or more here on forward so community members get to know you. Thanks. /~Rayne]
Thanks, Rayne. I’ll stay with HGillette. While I have not been commenting, I have been reading, so I think I am aware of most of the pitfalls and will do my best to avoid them.
You are doing fine, stick in there.
The DOJ is relatively certain that there are additional documents (notes, letters, memos) that are not marked classified but that contain classified material. The DOJ could (and did) separate out the docs marked classified as they were both easy to identify and easy to prove were government documents and not personal. Battles over notes etc. will be a bit rougher to deal with.
This is where noting which unmarked docs were discovered in proximity to docs marked classified is so important, and why Cannon’s irrational “do your intelligence review but don’t look at any docs not marked classified” makes absolutely no sense. The 11th circuit didn’t rule on the larger question of these unmarked docs, but they clearly understand what’s going on here.
(And welcome back!)
This is the big unanswered question in my mind as well. If DOJ has what they need to pursue the potential charges outlined in the search warrant, then this all seems like a meaningless kerfuffle.
One hypothetical is that there are materials other than those marked as classified that are distinctly incriminating for crimes other than those identified in the search warrant.
Another is that this is all political theater. A sideshow designed to stoke right-wing outrage at the “abuses of an unchecked deep state blah blah blah.”
I think there’s an intersection of the two ideas as well. If there is some bad news buried in the larger pool of documents, the disclosure of that information could change turnout numbers further in favor of the Dems.
Another way the original two ideas intersect is the notion that the hypothetical bad news would be of interest to the Jan 6 committee. Regardless of the outcome of the midterms, they are winding down and there is probably a great deal of interest in running out the clock here.
Given how nakedly Cannon’s order acts to move the conclusion of these proceedings out past the mid-terms, I think it’s reasonable to conclude that the *possibility* of 3 & 4 is motivating her.
If any or all of that is true, it’s possible that DOJ doesn’t really mind all the histrionics now that they got the stay they wanted in the short term and the broader appeal is still in flight.
Found myself reading through this today:
https://www.uscourts.gov/sites/default/files/vol02a-ch02_0.pdf
“An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
“Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be
independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.
The Canons are rules of reason.”
Is Cannon following/complying with the Ethics and Judicial Code of Conduct for United States Judges?
The process should be started although it’s proper outcome is unlikely:
https://ballotpedia.org/Impeachment_of_federal_judges
https://www.yalelawjournal.org/forum/removing-federal-judges-without-impeachment
So, John W, you want Congress to waste end of term time, especially as to the Senate, on a terminally stupid, doomed and failed impeachment effort against a single district judge you disagree with? That is your plan? What about the Senate instead confirm a bunch of new judges for the copious amount of open seats? How about that instead of rote stupidity? Just asking questions….
I think you’re doing the arithmetic about vote counts, but not the math on the political issues – we’ve frequently discussed wanting Democrats who fight, but you don’t want them going after this obviously corrupt judge? Cannon is everyone’s judicial nightmare; partisan, corrupt and happy to help her side commit actual crimes. Why the fuck shouldn’t she be impeached?
What exactly is “obviously corrupt” about Cannon? That you don’t like her rulings? That is not a basis for impeachment, that is ridiculous. You have one scintilla of evidence she is bought off or on the take? Of course you don’t. Judges don’t get impeached for bad decisions. Not to mention it would be a hideous waste of time at the critical end of a legislative session with zero chance of success.
Again, how about we have the Senate spend their precious remaining time confirming new judges for all the currently open seats? That is one hell of a lot more important than a petty and doomed impeachment folly. It is a ludicrous suggestion. Not to mention there is not a chance in hell Pelosi would permit such an effort in the House, nor should she. Sheer folly.
I’m pretty sure that’s the post I thought better of and deleted.
But since you’ve replied, the very kindest thing anyone could say about Cannon which fits the facts is that her enthusiasm for Trump has caused her to misread a dozen or more different laws, Constitutional amendments, Supreme Court precedents, and court rules,* all so she can go down in history as one of the worst, most egregiously partisan judges ever. She graduated University of Michigan summa cum laude, then had a successful legal career, so we can be very sure she knows better than to do even one of the things she’s done.
What I wrote above is the kindest thing any rational person could say about Cannon’s rulings. It assumes no facts which aren’t known to be true and makes no logical leaps. How much worse it gets is a matter of opinion.
As for why she should be impeached, we’re in our current national situation because over the last few decades the Democrats haven’t done nearly as much as they should to call out Republican misbehavior, or better yet, arrest those who engage in it. I don’t think doing so is a waste of time or energy, unless you want to see more judges who think/act like she does.
Again with the impeachment bullshit? Seriously, that is just ludicrous. It is hard to believe that anyone so concerned about a single newbie District judge is frothing for a piece of useless performative impeachment art over having Congress, especially the Senate as to confirmation of the MANY current open seats. That was one of the moist ludicrous things I have ever heard. Apparently you are more interest in the useless performance than getting good judges confirmed wile they still can be. That is insanity.
Oh no! Definitely not in this session of Congress. You’re absolutely right about that!
I should add one more thing, which is that the Republicans are constantly pushing to see which norms they can break, and all those efforts to violate norms need pushback. If there’s a better way to do something about Cannon than impeaching her, I’m good with that, but these Republican efforts aren’t coincidence or accident – they’re all deliberately done in the face of (in this case, Cannon’s) knowledge that whatever they’re doing isn’t right.
Impeaching Cannon is just asinine and is never going to happen. Give it up and quit trying to divert Congress’ attention from things that actually are possible. Like confirming good judges to all the open seats. There are currently 85 federal judicial vacancies, but you would rather fuck all those off in order to perform the useless stunt of “impeaching” Aileen Cannon? What a joke. What other judges you do not agree with do that you wish to waste time on an useless impeachment effort? Are they more important than filling judicial vacancies too? Impeachment is not an appropriate remedy for disagreement with judicial rulings.
What do you think the endgame is here? Why do you think Cannon is doing this and what do you think the DOJ can do to stop it from occurring? I think that there is going to be something done to move this out of Cannon’s court and into DC if it is at all possible to do so. What do you think of that actually happening?
since no one else seems to have noticed another highly significant change by Cannon, I’ll mention it here.
In his orginal plan, Dearie cited the actual definition found in the Presidential Records Act for “personal records” (“f. The document is a personal record within the meaning of the PRA; see id § 2201(3).”
in her new order, Cannon changed the language to state “e. Personal record within the meaning of the Presidential Records Act”.
This is significant, because Trump’s lawyers will be arguing that the PRA gave Trump the absolute authority to designate what is a “personal record” without regard to the definition found in the statute (and which Dearie referenced), and will cite the Bill Clinton tapes case (Judicial Watch v NARA) for support.
By changing Dearie’s language, Cannon is telegraphing that she intends to ignore the definitions of ‘personal records’ found in the PRA, and adopt Trump’s interpretation of the law. (if this mess gets that far, Trump will lose on appeal, because under the PRA the designation of a personal record is supposed to occur when the document is created or received.)
What is the status of the empty folders? Does the FBI have them? DNI? or does Cannon have them locked with everything else?
Physically speaking, the folders are in the custody of the FBI. Legally speaking, Cannon has stopped the FBI from examining or otherwise using them in their espionage work.
Totally off topic, but has anyone heard if Trump’s cellar storeroom in Mara-largo flooded?
I’ve got my fingers crossed! But seriously, what if it did flood, and what if those boxes of documents were still sitting there?
AFAIK Palm Peach wasn’t hit much at all. The path was from Ft Myers to St Augustine.
I don’t believe West Palm Beach got any flooding at all. Not in the hurricane or flood zones. Just got tropical force winds…
But he’ll put in an insurance claim anyway.
hope this works: Kyle Cheney’s thread re DOJ-Expedite Appeal-et al
https://twitter.com/i/status/1575989700778758150
This is not good. They should be filing to have everything completely removed from Cannon’s court.
If they win this, she’ll be off the matter, if I understand it correctly.
Kanefield:
https://twitter.com/Teri_Kanefield/status/1575992317990776832
Teri Kanefield @Teri_Kanefield 19m
The order appointing the special master is the whole shebang. That was the first order.
If the DOJ wins, there is no special master. It was all a waste of Trump’s money and the DOJ’s time.
> Quote Tweet MontanaChris 🇺🇦 @Montanabeef 49m
> Replying to @Teri_Kanefield
I don’t understand what Kyle tweeted “DOJ is moving to expedite its appeal of Judge Cannon’s order appointing a special master”
Teri has a whole thread, current info. solid.
hugo lowell, guardian, 11thC exp appeal thread:
https://twitter.com/hugolowell/status/1575997617820995584
I assume you mean Teri Kanefield and this Twitter thread?
yes, rayne, my tang got all toungled, as my pop would say …
crummy typist, browser overloaded w tabs … gimme pointy hat.
My dad’s version was “I got my tongue tangled around my eye-teeth and I couldn’t see what I was saying.”
Ran across a summary of all the open source info (both filings and reporrts in the news) saying Trump is guilty as sin, on both espionage act and PRA, has been told so repeatedly, and been acting like a toddler about it (or a russian source) for years:
https://www.justsecurity.org/83034/tracker-evidence-of-trumps-knowledge-and-involvement-in-retaining-mar-a-lago-documents/
Of note: about 1/4 of classified docs were in Trump’s office, just a few in his desk. And Trump was quite proud of his letter from N Korea’s Kim Jong-Un.
There’s way more than needed for an indictment, with pretty strong proof on the espionage act, the question is (speculating) what is restraining the FBI? Makes me wonder if more evidence is being developed somewhere beyond just the non-classified stuff that was seized that Cannon has been obstructing.
Lol, you ever tried a criminal case? “Proof” is a lot more elusive than you seem to think.
Direct link to the Politico article “Feds seek to fast-track appeal …” by Cheney and Gerstein (600 words).
And the government’s Motion to Expedite Appeal (15 page pdf).
The appeals court practically invited this. If things go as they should, Cannon will be off the case completely. All her orders will be void, and the special master will be out of a job. When indictments come down, the case will be assigned at random to some judge in the West Palm Beach division of FLSD (which does not include Cannon).
The short version seems to be “Y’all have already ruled that the fool screwed up by accepting the case. Can you say it a little louder so can we get on with our jobs, please?”
I wonder whether, rather than firing Judge Dearie outright, Judge Cannon is trying to goad him into quitting.
Why in the world do you assume either is the case?
I’m not sure what you mean by “either,” but there has been much speculation on this site that Cannon may fire Dearie because of his propensity to issue orders that create problems for TFG.
Much speculation with not one shred of evidence.
I think Cannon is very happy to have issues bouncing back and forth between her and Dearie. It just makes more delay and gives her the opportunity to make further rulings which slow stuff down.
81924 docket as of now FYI:
Sep 30, 2022 Order
Sep 30, 2022 Description not available
Sep 30, 2022 SYSTEM ENTRY – Docket Entry 128 [misc] restricted/sealed until further notice. (pcs)
Here’s Politico’s article on it: https://www.politico.com/news/2022/09/30/feds-seek-to-fast-track-appeal-in-trump-mar-a-lago-documents-fight-00059879