Aileen Cannon’s Calvinball Special Master

In the first paragraph of her order reversing Raymond Dearie’s order that Trump verify the inventory DOJ provided, Aileen Cannon identified three documents by name: Dearie’s amended case management plan, dated September 23, Trump’s objections, which were originally sent to Dearie on September 25 but which she may have only seen on September 28, and a government filing she renames, which was originally titled, “Motion to Modify and Adopt the Amended Case Management Plan with Comments on the Amended Plan and Plaintiff’s Objections.” That was filed on September 27.

THIS CAUSE comes before the Court upon the Amended Case Management Plan (the “Plan”) [ECF No. 112], filed on September 23, 2022. The Court has reviewed the Plan, Plaintiff’s Objections [ECF No. 123-1], Defendant’s Response to Plaintiff’s Objections and Motion to Modify and Adopt the Plan [ECF No. 121], and the full record.

Later in her order, when she discusses Dearie’s own order that Trump confirm the inventory before the start of the designations, she describes the deadline he set for the inventory verification as September 30, then notes in a footnote that he modified that deadline in an interim report to her on September 27.

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

2 The Special Master’s Interim Report No. 1 modified this deadline to October 7, 2022 [ECF No. 118 p. 2].

Those two details are a tell to understand what, bureaucratically, Cannon imagines she did on Thursday. On Thursday, she was overruling Dearie’s plan as it existed on September 23, not as it existed on September 27.  She was effectively taking over the review starting on September 23, but without telling anyone that or explaining what deadlines applied.

It’s a way — and was used as a way in this instance — to make Dearie entirely superfluous, a mere showpiece to give her own direct intervention to give Trump his way the patina of legitimacy.

Start with Cannon’s order appointing Dearie, dated September 15. It required that Dearie submit a plan to her within ten days, so by September 25.

Within ten (10) calendar days following the date of this Order, the Special Master shall consult with counsel for the parties and provide the Court with a scheduling plan setting forth the procedure and timeline—including the parties’ deadlines—for concluding the review and adjudicating any disputes.

She set a five day deadline for the parties to object to that order, after which she would review the matter de novo.

The parties may file objections to, or motions to adopt or modify, the Special Master’s scheduling plans, orders, reports, or recommendations no later than five (5) calendar days after the service of each, and the Court shall review those objections or motions, and any procedural, factual, or legal issues therein, de novo. Failure to timely object shall result in waiver of the objection.

The day after the 11th Circuit overruled her injunction on classified documents, on September 22, Cannon issued an order that everyone thought was just her acknowledging that the classified documents were no longer covered by the order (that’s not technically true, and I think she doesn’t believe it’s true even now, but it took the classified documents out of Dearie’s work plan). In taking out the reference to classified documents, it also took out this entire paragraph, including the bolded language about interim reports.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary. [my emphasis]

I raised it at the time, people poo pooed my concern (and scolded Dearie for raising it later). But this was the moment when Cannon told Dearie to fuck off, only without telling him she had done that.

Shortly after that, on day 7 after his appointment, Dearie submitted to the two sides his original plan. He gave them until September 27 to raise objections.

This Case Management Plan shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing Case Management Plan by September 27, 2022. Failure to timely object shall result in waiver of the objection. See Appointing Order, ¶ 11; Fed. R. Civ. P. 53(f).1

1. To the extent the parties file objections with the Court as to this Case Management Plan, the deadlines set forth above shall remain in effect while such objections are pending.

Clearly, at that point, he believed he would have time to address any concerns himself. The work plan included his plan to use (and pay, as the only paid employee) retired Magistrate Judge James Orenstein to help with the review.

On September 23, DOJ informed Dearie that Trump still hadn’t contracted with a vendor to scan the documents, and asked for a one business day extension, but still with the expectation that Trump would arrange the contract (since he is paying). DOJ also asked him to tweak his order to make it clear the inventory would not include the potentially privileged documents. They noted that Trump still hadn’t provided his proposed protective order, which had been due September 20, which would have held up the document scanning anyway.

Later that day, Trusty filed a protective order.

Dearie issued an updated work order, with the same September 27 deadline for changes. It also still included his plan to hire Orenstein. I believe this is the work order Cannon took as operative on Thursday.

Also on September 23, Dearie issued a protective order that (the docket entry noted) had been approved by Cannon. It sided with Trump that he didn’t have to share the name of his reviewers, something that was made less urgent after the 11th Circuit had taken the classified documents out of the work plan.

On September 25, on Dearie’s original deadline for filing a work plan with Cannon (but before the date he provided for changes), Jim Trusty emailed Dearie his three objections: they didn’t want to affirmatively confirm the inventory, they didn’t want to distinguish between Executive Privilege that could and could not be shared with the Executive Branch, and they didn’t think they had to brief the appropriateness of filing a Rule 41(g) motion to Cannon rather than to Reinhart. This was not docketed and Judge Cannon is not listed as a recipient of this email. Chris Kise was on the signature block of this letter.

The next day, September 26, the second public deadline (after the protective order, which Trump missed), DOJ filed a revised and sworn affidavit. That was also the deadline for Trump to designate all the potentially privileged files he had had since September 16.

A bunch of things happened on September 27. I’ll treat them in the order they appear in the docket, which looks like this:

First, Dearie filed a staffing proposal to Cannon, noting that the window for the two sides to object to it had expired. This was the first moment that the staffing got separated from his work plan.

No party has submitted any comment to the foregoing proposal, and the time for such comment has lapsed. Accordingly, the undersigned respectfully submits the foregoing proposal to the Court for approval.

Then Dearie filed an interim report to Cannon. In it, he recommended Cannon add back in the language authorizing interim reports that she struck along with language about classified documents.

Interim Reports and Adjustments to Prior Orders. In the original Appointing Order, the Court directed that “the Special Master shall submit interim reports and recommendations as appropriate. Upon receipt and resolution of any interim reports and recommendations, the Court will consider prompt adjustments to the Court’s orders as necessary.” Appointing Order ¶ 6. However, the Court later struck that language as part of its order implementing an unrelated ruling by the Eleventh Circuit. As the language quoted above as to interim reports and adjustments to prior orders is consistent with the Eleventh Circuit’s ruling and the efficient administration of the Appointing Order as amended, the undersigned respectfully recommends that the Court issue an order reinstating that language.

His interim report clearly expected he’d get one more shot to resolve disputes. In it, he said the parties would have until October 2 to respond.

This Interim Report and Recommendation shall be filed on the docket and deemed served on each party today. The parties may file objections to, or motions to adopt or modify, the foregoing report and recommendation by October 2, 2022

Next, there’s a sealed (and still sealed) order.

Then Cannon approved Dearie’s staffing plan, but declined to replace the language in her original order that permitted interim reports.

The Court takes no other action at this time, recognizing that the Order Appointing Special Master authorizes the Special Master to file reports and make recommendations as appropriate.

It was not clear at the time, but this effectively told Dearie that his understanding of how things would work — that he could issue interim reports and only after that Cannon would intervene — had been changed in the wake of the 11th Circuit ruling on classified documents. Effectively, Cannon told Dearie on September 27 she had taken over the work plan on September 23. That’s why, I suspect, that she only cited his September 27 Interim Report in a footnote. She basically ignored everything he did after September 23.

After that, DOJ filed its request for another deadline extension, along with its objections to Trump’s objections received two days earlier.

On September 28, Trump for the first time raised timeline concerns in writing, also claiming that DOJ had told Trump there were 200,000 pages (as I’ve written here, that’s virtually impossible; I suspect it came from the work order DOJ provided to solicit the vendor). The letter was not signed by Kise, and raised a lot of bogus claims about privilege (and also seemed to indicate that Trump had already missed the privilege deadline). Along with those concerns about timing, Trump filed his complaints, which (at least based on the public record) was the first time Cannon would have seen the complaints; the docket exhibit is what she cited in her order.

Working under Dearie’s deadline, DOJ had four more days to respond to Trusty’s probably bogus claims of 200,000 documents and to rebut the privielge claims. Working off a five day deadline from Dearie’s submission of his amended work order on September 27, DOJ also had four more days. Working under Cannon’s original deadline — five days after Dearie’s original deadline of September 25 — they had two more days. Under Dearie’s September 23 order, the final deadline was September 27.

What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.

The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.

DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.

On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.

Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.

I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.

Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.

Timeline

September 15, 2022: Cannon opinion denying stay; Cannon’s order of appointment; Raymond Dearie declaration

September 16, 2022: DOJ motion for a stay

September 19, 2022: DOJ topics for initial Dearie conference; Trump topics for initial Dearie conference

September 20, 2022: Trump 11th Circuit response; DOJ 11th Circuit reply

September 21, 2022: 11th Circuit opinion granting stay

September 22, 2022: Cannon order removing documents marked as classified from Seized Materials covered by her order; Dearie proposed work plan

September 23, 2022: Protective order; amended case management plan; motion for extension of time

September 25, 2022: Trump objections to Dearie order (released on September 28)

September 26, 2022: Sworn affidavit with more detailed inventory; Julie Edelstein

September 27, 2022: Dearie interim report; Staffing proposal; Government motion for extension and to adopt case management plan

September 28, 2022: Trump objection that DOJ didn’t ask for enough additional time

September 29, 2022: Cannon order alters Dearie work plan

September 30, 2022: DOJ motion to accelerate 11th Circuit appeal

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100 replies
    • Diane says:

      Thank you for posting this. Extremely informative.

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

  1. Benji says:

    I think I get it, delay of course is the game but:

    “I’ve spent hours and days looking at this, and there’s no making sense of the deadlines.”

    I may be ignorant of the nuance of law but can Dearie just proceed with his own timeline and effectively demonstrate that he is telling Cannon to ‘pound sand, I am doing what I was appointed to do.’ until the 11th decides on the DOJ’s request for expedited appeal on the matter of having a SM in the first place?

    He seems principled and may not be willing to do something of this nature – but could he?

      • Spencer Dawkins says:

        I think I understand the reasoning behind your response, but it’s really hard for many of us to figure out what the new rules are in Calvinball, when you didn’t even know you were playing Calvinball at the beginning of the game.

        Now that you know that the other player can carry the ball in her arms when you thought you were playing soccer, what can you do in response? Keep playing soccer? Grab the ball with YOUR hands? Trip the other player? Bring more players from your team onto the field? Declare that all games now last 43 minutes and 12 seconds, so the game is suddenly over with you in the lead, so you win?

        That’s what this feels like, to me.

        • earlofhuntingdon says:

          That’s the nature of Calvinball, and why Cannon is playing it. She has no facts, law, process, or precedent on “her side.”

          • Benji says:

            Then wee-wee on standing and let Dearie give Cannon a huge, very public middle finger – standing be damned.

            They go low – we don’t? Piffle.

            Long live Calvinball. Sorry Earl of – the time to play nicely with these MAGAt’s has come and gone.

            Law is one thing.

            Justice is quite another – it is time folk like Dearie step up without waiting on an unknowable 11th decision. I know – not a lawyer – but it is quite obvious that team orange moron is gaming the system and it needs to be countered.

            • bmaz says:

              Actually, there is no justice without law, unless you favor anarchy and lynch mobs. Doesn’t sound like you understand much about either justice or law. So you want Dearie to consciously and blatantly violate his remit? The same thing people are whining that Cannon has done? Wonderful. No, Dearie is federal judge, and he should not do that either.

              • Benji says:

                Yeah, I get it. And therein lay the frustration many of us non-legal types experience: we are expected to sit by and watch one ‘Federal Judge’ play fast and loose and nearly the only hope is that the next backstop – the 11th – was hand-picked & loaded with partisan appointees just for this type of shit show. Wonderful indeed.

                No Bmaz, not going to tilt at windmills or try to roller skate in a buffalo herd here by getting into a pissing contest with a lawyer – everybody gets a wet leg and no one is happy. I come here for education and a bit of therapy – venting here is cheaper than a bartender or a therapist plus I do learn a bit, thanks for responding.

                And again, yeah – the law and justice are two very different things. But actual justice depending on law or else anarchy ensues?

                I am glad Dearie has integrity – but the fact that Cannon can play fast and loose within the same framework that strictures him is blatant hypocrisy and why many common folk have little faith in the law.

                Thanks again.

              • Benji says:

                Yeah, I get it. And therein lay the frustration many of us non-legal types experience: we are expected to sit by and watch one ‘Federal Judge’ play fast and loose and nearly the only hope is that the next backstop – the 11th – was hand-picked & loaded with partisan appointees just for this type of shit show. Wonderful indeed.

                No Bmaz, not going to tilt at windmills or try to roller skate in a buffalo herd here by getting into a pissing contest with a lawyer – everybody gets a wet leg and no one is happy. I come here for education and a bit of therapy – venting here is cheaper than a bartender or a therapist plus I do learn a bit, thanks for responding.

                And again, yeah – the law and justice are two very different things. But actual justice depending on law or else anarchy ensues?

                I am glad Dearie has integrity – but the fact that Cannon can play fast and loose within the same framework that strictures him is blatant hypocrisy and why many common folk have little faith in the law.

  2. earlofhuntingdon says:

    Cannon also seems to be attempting to prevent anything Dearie might come up with – conclusions of fact or law – from becoming part of the public record or reviewable by anyone but her. Cannon isn’t just calling balls and strikes, in Roberts’ offensive mischaracterization – she’s batting for Trump and running the bases, too.

    • emptywheel says:

      Her order is totally unclear about whether all his comms have to be ex parte or not.

      But yes, that does seem to be her intent.

    • gmoke says:

      “…she’s batting for Trump and running the bases, too.”

      You mean besides being the umpire, following in the footsteps of Chief Justice Roberts calling balls and strikes?

  3. earlofhuntingdon says:

    Judge Cannon continues to abuse the process and the law. Accepting an ex parte e-mail from Trump’s lawyers, for example, is extraordinary. Courts normally expect to review only properly filed and docketed motions that are also served on the opponent.

    Cannon’s abusive process delayed for days telling the government what Trump’s lawyers communicated to her, and delayed giving the DoJ a timely opportunity to respond to it, before she made a decision on it. Normal courts do that only in exceptional circumstances. Saving the ass of his Royal Highness, Lord Trump, must be one of those circumstances for Aileen Cannon.

    • emptywheel says:

      I’m not sure they did. Trump sent an ex parte email to DEARIE, not Cannon. She was not addressed on that.

      • Desider says:

        But does that mean she can ignore this, since she wasn’t copied but has for all purposes taken full charge? So akin to & legally meaningless as Trump talking on OANN, playing a cynical charade with Dearie (and the public + MSM) that he can use for whatever 2-faced purpose needed going forward?

        • earlofhuntingdon says:

          She’s aware of it as of 28 Sept., because it was attached to a filing sent through the standard electronic protocol.

    • NerdyCanuck says:

      The article specifically says though that Trusty’s email was sent directly to Dearie, not Cannon.

      Here is the quote (not sure how to make it indented all fancy from my phone browser, I’m new!), but here is my attempt:

      “On September 25, on Dearie’s original deadline for filing a work plan with Cannon (but before the date he provided for changes), Jim Trusty emailed Dearie his three objections:”

      snip

      “This was not docketed and *Judge Cannon is not listed as a recipient of this email.*

      (stars = my emphasis)

      So that leads me to ask if you mean to say that Cannon somehow got the email anyways through a different, improper (and thus also ex parte) channel?

      Because it doesn’t seem clear to me that that’s true, from what’s laid out in the article…

      EDIT: Oops looks like this point was already made, sorry!

      • emptywheel says:

        I’ve added some to try to clarify this.

        I believe the first time Cannon DEFINITELY saw the complaints was on September 28.

        But given that she basically assumed the Special Master position, I don’t rule out that she’s decided she can have ex parte conversations.

  4. Silly but True says:

    With the 100 documents stamped classified taken out of this whole Cannon/Dearie arena, these timelines are ridiculously short for a civil case that now has zero espionage angle to it.

    Clearly the court, nor Dearie himself have any idea of the private commercial world of in time of Covid.

    I’m honestly surprised a private vendor responded within three days; I imagine it might take at least a week to execute a contract, probably two. These are the jobs any document management service loves, but only if they have enough time to plan it; it’s going to consume entire local staff of the local office of even large chains. And whether the vendor advertisement estimate is right or not, whatever company doing it better estimate what is described.

    • Hika says:

      “… a civil case that now has zero espionage …”
      That’s just not so. DOJ has made explicit reference in it’s application for expedited hearing of its appeal to 11th Circuit that the non-classified documents include material that is pertinent to its CI investigation.
      If you wish to get a good grounding on that, Peterr wrote about this fact more than a week ago – well before DOJ made that application: https://www.emptywheel.net/2022/09/23/three-questions-at-the-start-of-an-intelligence-review/

    • earlofhuntingdon says:

      The problem, as Trump found out already, is not how hard this work would be to schedule or do – the scale of this project is quite small. It’s that not many vendors want to do business with him. Lawyers are not the only service providers who find Trump an embarrassing, time-consuming, and expensive waste of time.

  5. paul lukasiak says:

    Perhaps Cannon acted because the DoJ had decided to make public the objections that Trump’s lawyers had raised in (authorized) ex parte communications with Cannon (and cc’d to the DoJ). In his interim report, Dearie changes deadlines for a second time, but does not address any of the concerns raised by Trusty/Kise in their letter of the 25th.

    One very odd thing — Dearie addressed (in EC 112) the first request for a revised schedule (EC 108) Both were dated, and docketed, on Sept 23. But in his Interim Report (EC 118) dated/docketed Sept 27, Dearie revises the schedule a second time, again referencing EC 108. But the DoJ had filed a motion for a second schedule extension (EC 121), also dated Sept 27, and in that motion also made public details the ‘private’ correspondence sent by Trusty/Kise.

    So why did Dearie revise the schedule a second time, and reference only the original motion for an extension of the deadlines?

  6. Amicus says:

    Once the 11th Circuit ruled there were different things Judge Cannon could have done. She could have asked for additional briefing whether there was a part of the proceeding – e.g., the appointment of a Special Master to review privilege issues, that was still properly before her. She did not do that. (And as Napoleon would say, why should anyone suggest it to her – never interrupt an adversary making a mistake.) She could have sought briefing to revisit the first Richey factor.

    Instead, she has proceeded apace as if the 11th Circuit had said nothing. And then, in DOJ’s all important phrasing, she stuck her nose into what the Special Master had proposed sua sponte. DOJ did not argue that it was wrong for her to do so – they simply called attention to her unilaterally micromanaging the process. And what she did was apparently enough for DOJ to conclude that there was no upside to any further proceedings before her, and instead, it was time to seek expedition before the 11th Circuit and seek to put J. Cannon in the rear view mirror. The request for expedition is very well done. DOJ’s motion stands on the consideration that the core point remains: according to the 11th Circuit’s decision concerning the stay request she could not satisfy the first Richey factor and there is no reason to believe that is still not the case and she therefore had and has no jurisdiction to act on the motion that begat the case.

    DOJ has seen enough Calvinball. The 11th Circuit is not likely to miss the point. Nor is it likely to miss the point that J. Cannon went forward as if everything the 11th Circuit had written was set forth in invisible ink.

  7. Arteberry says:

    Cannon’s delay tactics, and the negation of her prior claim that the situation requires “the review of a neutral third party” are bad enough. The thing to keep an eye on will be her (inevitable) acceptance of Trump’s sweeping claims of executive privilege as to many of the stolen records. On this basis, she will order that the preliminary injunction be made a permanent injunction on the government making investigatory use of those records.

    That doesn’t mean Trump will get the records back. Even Cannon would not go to that manifestly improper result. But Cannon will still say the government cannot make pre-indictment, investigatory use of those records. Of course, the law is clear that a successful pre-indictment Rule 41(g) motion is not a substitute for a post-indictment motion to suppress. But Cannon intends to use phony executive privilege claims to throw the maximum monkey wrench into the investigation, if not the trial. So that goes way beyond delaying the special master’s review process.

    With this prospect in mind, it’s not surprising the government has moved to expedite the appeal to the 11th Cir. If the 11th Cir. stays true to its prior reasoning, the Cannon nonsense will be over soon enough. If not, the case against Trump is certainly not dead but it’s considerably more complicated.

    • JohnnyO says:

      Is it possible Cannon could take some action like you indicate, making the injunction permanent, before the Circuit court decides on this expedited review of the DOJ appeal? Would this current appeal apply to this as well or would a new appeal be necessary? I’m just wondering what the worst case scenario could be.

      • earlofhuntingdon says:

        There’s little Cannon could do that would prevent the 11th Cir. from reversing her. If anything, her conduct is now less likely to meet with the 11th Cir.’s approval. Appeals courts don’t look kindly on newbie district court judges who thumb their noses at them out of partisan zeal for one party in civil litigation.

        • Badger Robert says:

          I think Earl has it pinned down. I don’t see any Circuit court approving of a Dst Ct judge magnifying the dispute and not using an appointed expert correctly to expedite resolution. Her lack of docket management is what will hurt her orders the most.
          There could be a remand with extensive instructions and Judge Cannon may have to go back to judges college.

          • Faithdc says:

            Did Cannon miss the orientation and sock hop at the Judges College? Didn’t she graduate law school less than a decade ago?

            • bmaz says:

              She graduated from Michigan Law School, with honors, in 2007. Simple Google would have told you that. And judicial orientation is not a “sock hop” and is about the logistics of running a courtroom, not about instilling views that suit your particular interests.

        • earlofhuntingdon says:

          Emotions, though, needn’t play any part. It’s not as if the 11th Cir. would have to look hard to find reversible errors.

        • Village idiot says:

          Although it may to to Trump’s public benefit for her to hand out a wackadoodle “permanent” ruling anyway, even knowing it would be swiftly reversed. It may not be legally relevant, but it’s still red meat for Trump supporters.

      • Arteberry says:

        The injunction could only be made permanent at the conclusion of the special master’s work, And Cannon is already trying to slow that work down. The current appeal covers all the issues. Whether the 11th Cir.. agrees to expedite the appeal or not, the ultimate appellate decision is likely to resolve everything (excluding a possible appeal to the Supreme Court.)

        • NerdyCanuck says:

          Will the DOJ’s second (aka full) appeal, that they are now asking to be expedited, automatically be seen by the same three judges at the 11th Circuit as the first one was?

        • Former AFPD says:

          I should have looked at the SDFL district court branch courthouse staffing information. I now realize that Judge Cannon is the only judge in her branch courthouse. I wonder if the DOJ will request the 11th Circuit to remand to another judge? Perhaps the panel will do it sua sponte – on its own.

          • earlofhuntingdon says:

            It may not go back on remand. The 11th Cir. has already held that she abused her discretion in asserting jurisdiction.

      • Badger Robert says:

        She will use executive privilege rulings and then she will start reaching to make orders that the government violated her orders and the evidence is now poisoned.

  8. KM Williams says:

    It’s the same old same old thing Trump always does to dodge consequences of his actions. Throw everything at the wall, dump bloody chum into the media waters, and then Nuke the shitstorm he’s created. Create a lot of noise and fury, cause a lot of time and money to be wasted by his opponents, confuse the majority of observers, all the while he struts around, wealthy and free, making death threats. Eventually the storm passes, and there sits Trump with his gangster associates, laughing their asses off at civilized society.

    • Nostradoofus says:

      Very well put; you’ve nailed it.

      For all the interesting and granular detail found here, all falls away as chaos works its way into the system, bringing everything to a halt. Rinse and repeat.

      I don’t believe folks–who ought to know better–understand the attack which is overwhelming them. We’re watching a master at work, overturning the legal system to his advantage. What once redefined the midterm races is now ancient history, mere squabbling over what is usually called a ‘process crime’ by the world’s eternal victims.

      The Untied States stands at the precipice and the prospects are chilling…and utterly fascinating.

  9. tryggh says:

    DOJ’s request for an expedited judgement on it’s appeal says:

    “Even if not to the same degree, such harms persist with respect to the district court’s injunction against the government’s review and use of thousands of remaining documents and other materials that were recovered pursuant to a court-authorized search and may constitute evidence of crimes,”

    So is the 11th now in a situation where everyone can pull a “Trump” and block usage of seized evidence?

  10. Building Guy says:

    Seems to boil down to Trump not liking the way this thing is going, decided not to pay for the reviewers, and told Cannon “Good night Ailleen, Good night Aileen. I’ll see you in my dreams”

  11. AlaskaReader says:

    Considering Cannon’s pro-active prejudicial end game, (…amongst other things,)

    Justice Samuel Alito says criticism of the Supreme Court is going too far.

    ( …hmph, …how dare he, eh?)

  12. GKJames says:

    For what it’s worth, 12 Dems voted to confirm her … and 12 other Dems didn’t bother to show up.

    • Faithdc says:

      I seem to remember that Cannon was one of the prospective judges from that Federalist Society cesspool that I received hair-on-fire emails about: how grossly unqualified she was. She’s not even smart enough to cover her tracks. She’s a partisan zealot. She cannot be allowed to be the determining factor of what is privileged or not. DOJ correctly read her last order and knows there isn’t a chance in hell of getting proper rulings from this dangerous idiot. Appeal is the only choice.

      • bmaz says:

        Oh, and by the way, Cannon is more than qualified, and far from an idiot. Just because you don’t agree with her does not change that. Let me ask you, do you (and others here railing about how “dangerous” Cannon is) also have similar feelings about Texas District judges like Allbright and O’Connor? How about 5th Circuit Judge James Ho? Because they are a far bigger “danger” overall than Aileen Cannon. If Cannon had not have caught this case, you would not have a clue in the world who she was, but it must be fun to rant about the judicial enemy de jour. Which is exactly what Trump does. There is a bigger picture.

  13. greenbird says:

    … so i guess we wait for Donald’s CIP, eh …
    11012456503 Sep 9, 2022 CIVIL APPEAL DOCKETED.
    Notice of appeal filed by Appellant USA on 09/08/2022. Fee Status: Fee Not Required.
    Awaiting Appellant’s Certificate of Interested Persons due on or before 09/23/2022 as to Appellant United States of America.
    Awaiting Appellee’s Certificate of Interested Persons due on or before 10/07/2022 as to Appellee Donald J. Trump
    [Entered: 09/09/2022 10:14 AM]

  14. BROUX says:

    Marcy,

    you reported that there are 3 key filings under seal in a docket that Cannon opened, she claimed, to foster public trust. Are those filling accessible to the Special Master Judge Drearie? If yes, then he knows the warped rules that she is trying to set. If not, then he knows that she is playing a game with secret rules set at her discretion. Which is it? Thanks.

    • emptywheel says:

      We don’t know who has access to two of them.

      The third is the filter team progress report. We don’t know if Dearie has access to that. We know prosecutors from DOJ do not. We also know Cannon double counted that. And Trump has had those materials for some time and has not squawked publicly about it.

  15. SomeGuyInMaine says:

    I wonder if Judge Dearie can docket a request for Clarification of how deadlines have worked so far, and how Cannon anticipates them working in the future?

    Might be worthwhile to document and pin down Cannon’s inconsistencies under the aegis of not wishing to run afoul of them in the future. Essentially laying out a version of what you’ve laid out here.

    Might not be worth the effort, but maybe it would be. Also gives litigants (though really just the DOJ), something else from an independent 3rd party to succinctly point to in the appeals process.

    The more documented misfeasance of Cannon the better imho

  16. PeterS says:

    At the risk of being accused of trolling, could someone remind me how this part of Dearie’s plan got there: Plaintiff to provide a “list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.”

    I recall that Trump’s lawyers have alluded to magic declassification in their submissions but I can’t remember if the bullshit “FBI planting” story was referenced. And if it wasn’t, under what circumstances does a judge or court react to a party’s TV appearances?

    (I fully accept my memory may be failing me, in which case I apologise)

    • SaltinWound says:

      I can think of a few instances of judges reacting to TV appearances in trying to determine the truth. 1/6 judges are very aware of defendants expressing remorse in court and then the opposite in media and have made efforts to hold them accountable.

    • PeterS says:

      Oh well, at least we got to enjoy a few days’ headlines of Dearie forces Trump to Put up or Shut up (as if he would ever sign an affidavit that was responsive and drafted in good faith).

  17. Unabogie says:

    I have a few questions here.

    1. Do we think Dearie sees this situation the same way we do? Does he perceive it as Cannon ripping the case away from him? If so, what would we expect to see as a signal of that perception?
    2. Does the 11th circuit taking the case away from Cannon end her involvement? Or could a SCOTUS appeal actually put her back on the case months down the line?
    3. If the 11th circuit does not end this involvement, does the DOJ have another move? I’ve seen people say that filing charges in DC would shut her down. Is that accurate?

    Thanks

  18. Savage Librarian says:

    Aileen Cannon and her ailing canon:

    Looking at item 24. b. (p.23) of her responses to the Senate Judicial Nominee questionnaire, we see how Aileen Cannon said she would respond to potential conflicts of interest. She specifically mentions Canon 3 of the Code of Conduct for United States Judges:

    https://www.judiciary.senate.gov/imo/media/doc/Cannon%20SJQ%20-%20PUBLIC.pdf

    Here is the Code of Conduct, for us to assess if she told the truth to the Senate:

    “Code of Conduct for United States Judges”

    https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges

    • bmaz says:

      Lol, people continue to be completely out of their minds about Cannon. It is not a conflict to be assigned and handle a case involving a President that appointed you. It happens all the time. And, no, the US Judicial Conference would have none of that. She also is not going to be impeached. Neither are going to happen.

      • Savage Librarian says:

        Hi, bmaz! Oops, I didn’t mean to rile you. This wasn’t to suggest any impeachment or that there was a conflict about being a Trump appointee. Nope, not at all. I’m not sure where you got that idea.

        But the Code of Conduct addresses many more things it seems. I wonder how much of it is taken for granted or treated cavalierly. Public libraries have a code of conduct, too. But some take it more seriously than others.

        I don’t think Cannon takes her canon seriously. That’s all. And I just wanted to share what it says.

        • earlofhuntingdon says:

          Cannon may not take her canons seriously, but she’s not going to be prosecuted or disciplined. If she faces any consequences for her conduct to date, they would be personal and ephemeral. Like many Trumpists, she cares mainly about her status with her tribe.

          Now, if she had lied before Congress about her belief in the separation of church and state, or the sanctity of precedent and Roe v. Wade, that would be, um…no different. This is not a productive line of thought.

          • JonW says:

            I’ve been curious for a long time what her justification to herself is for doing all this. Obviously, it’s hard to get inside someone else’s head, but I spend (maybe too much) time reading RWNM sites like townhall and fox etc, and in that bubble, this whole thing is just another datapoint for what they call “trump derangement syndrome” and is just another “deep state hoax”. (To be clear, I’m not saying I believe that, just that is what the narrative seems to be in that part of the internet).

            So I guess I’ve been curious if Cannon believes all that, and is then working backwards thinking “how can I stretch the law and procedure to fight back against the deep state?”. As opposed to thinking “how can I help a guilty man?” or “I don’t care if he’s guilty, I just want to be seen as on the right team for my own cynical reasons”. And I guess it could be some combination of all that or other reasons I’m not thinking of.

            Maybe it doesn’t matter, but I’m naive enough to wonder whether, if she thinks it’s a deep state hoax, she could come to see reason when presented with enough evidence (like proof that nothing was planted and that the classified&NDI docs were really important)? Please feel free to laugh at me for being naive!

          • timbo says:

            Two words: John Mitchell

            No one has “lifetime immunity”. It’s not a thing. Or, if it is, if “lifetime immunity” really is a thing in our country now, then cynicism and cronyism has won out.

          • Troutwaxer says:

            I think it’s a very productive line of thought.

            Here’s the thing. Cannon, and others like her, do everything they can to push back against legal and traditional norms. This is standard Republican behavior. In Cannon’s case, she’s ignoring laws, court rules, Constitutional amendments and Supreme Court precedents. This is the standard Republican playbook; not just to ignore law/precedents/rules/traditions, but to deliberately appoint those who are expected to ignore traditions, however encoded if it serves the Republican Party, who, as a group, ignore the law anytime they can get away with it.

            Is this corruption in the legal sense? I have no idea. But from the outside, to the public, this is what corruption looks like. It’s “I went into the courtroom expecting that the judge would follow all the rules/laws/precedents/etc. that judges are expected to follow and she ignored all that stuff – over and over again!”

            This kind of behavior is not something that can be allowed to pass without punishment if you want to retain your civilization.

            But if you want the rule of law, if you want to have a civilization, if you want your judges to be respected instead of held in contempt (like our current Supreme Court) this shit needs to be stopped.* If you don’t want to impeach her and others like her you can pick another method, but if you love your country don’t pretend it’s normal or that nothing can be done about it. It merely requires the political will. (And if your argument is that someone having the political will is an unreachable dream, please say so; it will unconfuse the discussion considerably.)

            * Yes, Silberman, Thomas, and Alito too!

  19. earlofhuntingdon says:

    For those wondering about Judge Cannon’s motivation and ideological pedigree, I recommend this 2004 critique of the recently departed Judge Laurence Silberman. He was a hard right wing idealogue and close friend of Dick Cheney. He spent decades working for the Nixon and Reagan administrations and as a judge on the DC Circuit. But his real passion was promoting radical Republican policies and personalities, something he never let his status as a judge interfere with.

    Like Cheney, Silberman was a master bureaucrat. He often chaired commissions, seemingly with the purpose of delivering the desired result. He got an early start. As Deputy Attorney General at the end of the Nixon administration, the 39 year-old Silberman landed the job of a lifetime: reviewing J. Edgar Hoover’s “secret files.” His rare criticism of Hoover might have been damage control, during an era of rare public accountability, but his assignment must have given him a wealth of dirt he found useful to the end of his days.

    The 2004 critique was written after Silberman’s appointment as co-chair of the commission supposedly probing the intelligence that preceded Bush/Cheney’s war in Iraq. I would compare his appointment to putting Allen Dulles’s on the Warren Commission or the idea of naming Henry Kissinger to the 9/11 Commission. Its description of Silberman might have been written about Bill Barr, and might be what Judge Cannon aspires to:

    Silberman’s place at the head of the commission has already raised doubts about its credibility, given that Silberman has often behaved as if his paramount role as a federal judge is to protect Republicans, persecute Democrats and slander anyone who disagrees.

    “My guess is that he’s on there for protection….To protect the president at all costs and to do what he’s done in the past with respect to protecting Republican presidents from scrutiny. I think he envisions himself as a mastermind behind many right-wing initiatives, whether it’s helping guide Clarence Thomas through the confirmation hearings or helping guide David Brock through all the anti-Clinton initiatives.”

    https://www.salon.com/2004/02/10/silberman/

      • Rayne says:

        As if Silberman’s tenure *before* social media might not have played a role in the lack of online discussion about the possibility of impeachment.

        • bmaz says:

          Lol, Silberman’s “tenure”, even if more recently on senior status, lasted until the day he died. And he was extremely influential until the day he died. There has been no lack of online discussion of him. But people here have a bug up their ass to impeach Cannon. Absurd.

        • earlofhuntingdon says:

          Silberman was a made man, at least since his time as Deputy AG at the end of the Nixon administration. He didn’t get the job of reviewing Hoover’s remaining secret files because he was a straight up guy: it was because he could be trusted to do the right thing with them.

          As with reviewing those files, his best work was behind the scenes, including during the Clinton investigations. We also have him to thank for the judicial careers of Clarence Thomas and other radical federal judges.

          Regardless of the media, his impeachment was never on the table. That was my point, to dash the hope that, on the present record, Cannon might be sanctioned or impeached.

          • Rayne says:

            I don’t know why this “impeach Cannon” crap won’t die simply based on math alone. We don’t have the numbers. We won’t have the numbers until the Electoral College is killed and that doesn’t have the numbers.

            • Troutwaxer says:

              It won’t die because people want a government that’s not corrupt really badly. We understand that not calling out the bad behavior and at least attempting to do something means we ultimately end up with a government that’s fundamentally dishonest, top to bottom.

              As for not having the numbers… Democrats don’t have the numbers because they won’t stand for something. And they won’t stand for something because they don’t have the numbers… The only way out of the problem is to stand for something. (If they impeached Cannon I might even send them some money.*)

              It would be nice to see Cannon convicted in the Senate, but that’s not really necessary, is it? Let her spend a couple days sweating in front of the House Judiciary Committee while someone who’s smarter than her asks the really tough questions. Cannon can spend those couple days knowing that any dreams of joining SCOTUS or becoming a partner in a top-tier law firm have just gone down the drain, that the stupid thing she said to prove her allegiance to Trump just went out on live TV, and that her lawyer is costing her $1000/hour. It’s not the “lose your job and law license” thing we’d really like to see, but it will do.

              * Yes, I do support individual Democrats I like.

              • Rayne says:

                As for not having the numbers… Democrats don’t have the numbers because they won’t stand for something. …

                You’ve been here long enough to know better than to spout this crap. There’ve been two presidential candidates who won the popular vote — the latter taking the largest number of votes ever — who didn’t win the White House because the system has been structured to prevent Democrats from winning. The numbers are there in terms of votes; the numbers haven’t produced the White House because of the Electoral College.

                And the Senate acts the same damned way, except that it is majority white thanks to voter suppression.

                We’re not going to see Cannon impeached. Perhaps after taking enough Senate seats to remove the two DINOs from the picture, perhaps after the filibuster is killed, perhaps after the SCOTUS is reformed to better match the country it serves. But not before then, and not because Democrats don’t want it.

                • Troutwaxer says:

                  Yes, I do understand that Democrats are laboring under many disadvantages, from gerrymandering to voter disenfranchisement and suppression to the electoral college. Then there’s the press, which engages in bothsiderism to the point where if a Democrat insisted that the world was round they’d spend time and money to find a Republican who presented well and believed that the world was flat.

                  Fixing all this will require a generation of very hard work.

                  But Democrats also suffer from a self-imposed disadvantage, which is that they don’t fight. When I say “Democrats should stand up for something” I say it with a very clear understanding of the other barriers faced by the Democrats. But “not fighting” and “not standing up for something” is the one problem Democrats have which they can fix, right away, all by themselves.

                  As you think about this, remember that there are several states which are neither red nor blue. They’re purple, and bending the vote by even a single percent – less in some cases – can have a major effect on the outcomes.

                  • Rayne says:

                    You’re still full of malarkey. You admit there’s a problem with the press and yet you’re relying on their coverage to tell you “Dems are in disarray.”

                    ~eye roll~

                    • Troutwaxer says:

                      Hey Rayne, this is the second time in a couple days that I’ve hit the delete button, had my post revived, then gotten a reply to my deleted message. I think this is highly inappropriate and I’d really appreciate it if ya’ll could knock that shit off!

                      Also, I did not say, “Dems are in disarray” and that’s not an argument I’ve made in this or any other thread. I’ve said multiple times that Dems should learn to fight, and in this thread (and one other I think) that they should stand up for something. (Press coverage aside, it’s not hard to come to that conclusion independently.) As it happens, I don’t think Dems suffer from any form of disarray – they’re obviously well-organized.

                    • Rayne says:

                      Next time write at the top of you deleted comment, DELETE THIS so that it can be distinguished from comments which the filters have binned because of keywords — see Old Tulsa Dude’s comment containing the word “Adderall” as an example of an unintended binning.

                      Or you could gut the contents of the comment before deleting it.

                      I’m not going to apologize for your posts being recovered because unless there’s an obvious reason, mods can’t tell what’s been deliberately binned by users and what’s been filtered by the algorithms.

  20. earlofhuntingdon says:

    Trusty and Kise have filed their response to the government’s request for an expedited appeal. They are arguing the well-known, “cannot possibly articulate” standard, regarding whether there would be risk of loss or harm to the government from further delays.

    That’s the standard one expects a lawyer to trot out, when he hasn’t actually read the government’s fully articulated argument – or has no cogent argument with which to oppose it.

    https://s3.documentcloud.org/documents/23116939/221003-response-motion-to-expedite.pdf

    • earlofhuntingdon says:

      Trusty and Kise make no arguments. They just ask the 11th Cir. to stick to the standard schedule outlined in the federal rules of appellate procedure. If they don’t, they say that President [sic] Trump will be prejudiced, but don’t say how. They whine that it would also be a hardship for them to meet Judge Cannon’s schedule, if they also have to meet an expedited schedule demanded by the 11th Cir.

      A glaring omission is that those appellate procedure rules (Rule 2) also provide for exactly what the government has asked for:

      On its own or a party’s motion, a court of appeals may—to expedite its decision or for other good cause—suspend any provision of these rules in a particular case and order proceedings as it directs

      They do find space, in a short filing, for two footnotes, the first of which opposes the government’s alleged,

      distorted and argumentative presentation of facts concerning the unprecedented raid [sic] of his home, its conduct in these proceedings, and the procedural history of this case.

      Their final claim is an appeal to the spthecialness of His Highness, and the purported, but unargued in court, claim that this is all a political witch hunt:

      Finally, the extraordinary circumstances herein presented — an investigation of the 45th President by the administration of his political rival — would countenance against any rush to judgment.

      I guess “political rival” is a stand-in for “duly elected and serving President of the United States,” but that’s a quibble. A more important omission is the extraordinary circumstance of former president Trump’s theft of thousands of government records, some of which are classified or highly classifed. That’s not a quibble.

      • brucefan says:

        Such a lame response — they must feel they’ve already won this round.

        Oh yeah; Merrick Garland is not Trump’s political rival. Trump’s political rival is aware of, and stays within, the office’s institutional boundaries. Those boundaries are what this investigation is about.

    • JonW says:

      They also repeat as if it were fact the 200k page thing, implying that they’re so busy with so many pages of documents they can’t deal with the appeal fast.

      I have no idea if this is normal appeals strategy, but they didn’t even talk about the part where the criminal investigation is being blocked by the special master process, which is the main reason why DOJ is appealing in the first place. Why didn’t they even bother to say something like “stopping a criminal investigation isn’t such a big deal for DOJ they can resume it later” or something like that? Can they really think the 11th circuit will forget about that problem?

      Also, for the lawyers out there, what’s the deal with point #7 in their argument about the assignment of judges? I could totally be reading this wrong but it seemed to be trying to imply that they needed an “objective scheduling of the panel” or something like that as if the previous panel wasn’t objective. Is this some Hail Mary attempt to get a new panel because they got so roundly crushed by the previous panel?

      [Welcome back to emptywheel. Please plan to use a more differentiated username when you comment next as we have several community members named “Jon” — and unfortunately, I’ve discovered we have two “JonW” unless you have also used a Canadian address. I suspect not. We are moving to an 8-letter minimum for unique usernames, plan accordingly. Thanks. /~Rayne]

      • JonathanW says:

        Hi Rayne, I wonder if it was always me (I’ve always used the same email address, if that helps you, but I really only started commenting in the past weeks so if it was older than that it was someone else.) I only realized the 8 character thing after my first comment and didn’t want to change names to avoid confusing people. And I apologize, I just commented on the latest post before I saw this message. I use a VPN usually, but I wonder if maybe once I didn’t and that confused things.

        Anyways, I’ll propose switching to JonathanW as my new username (like I just did) if that works for you! Sorry again for any confusion! Big fan of the site and love how actively you and everyone else monitors for various forms of bad commenting behavior.

        [Thanks for the name change. I’m pretty sure the other JonW isn’t you because they commented some years back; I suspect you were mistaken for them because they’d had a few comments here. Let’s hope they don’t try to use “JonathanW” when they pick a new name, eh? LOL /~Rayne]

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