Jim Trusty Tells Hand-Picked Special Master Raymond Dearie to Fuck Off

At the beginning of a status hearing before Raymond Dearie the other day, Jim Trusty suggested they had until November 12 to submit their designations on privilege for the remaining 21,792 pages of documents. DOJ attorney Julie Edelstein corrected him, and said their deadline was November 2.

Per Aileen Cannon’s order throwing out much of Dearie’s proposed work plan and extending deadlines, that appears to be right. That order set that deadline for 21 days after DOJ issued a notice of completion to indicate Trump had the documents with a spreadsheet to track everything.

No later than twenty-one (21) calendar days after the receipt of Defendant’s Notice of Completion, Plaintiff shall provide the Special Master and Defendant with one comprehensive, annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege;

c. Executive Privilege;

d. Presidential Record within the meaning of the Presidential Records Act; and

e. Personal record within the meaning of the Presidential Records Act.

Plaintiff’s designations shall be on a document-by-document basis.

On paper, at least, it seems that Edelstein is correct. DOJ submitted their notice of completion on October 12 (two days before Cannon’s deadline). The deadlines that trigger off that should be November 2 (for Trump to submit designations) and November 12 (to submit disputes to Dearie).

It’s worth keeping that deadline dispute in mind as you consider what Jim Trusty did last night.

First, DOJ submitted a letter purporting to summarize the disputes between the two sides about the privilege determinations for fifteen documents that Dearie must issue a ruling on. I’ll come back to those in a follow-up; the important detail is the document shows Trump making ridiculous claims. As a reminder, this page has links to most documents from the stolen document case and my posts.

Hours later, Jim Trusty filed a letter saying that Trump’s team believed both sides were going to file a joint document, and because DOJ hadn’t and because Trump doesn’t agree with some of DOJ’s designations, they’re not going to file their disputed items until October 24, Monday.

As noted in the Defendant’s October 20, 2022 submission (ECF 150) the parties met and conferred regarding Filter A documents on October 19, 2022. Up until receipt of the Defendant’s October 20, 2022 filing, we anticipated that there would be a joint submission and an exchange between the parties preceding that joint submission to confirm both parties’ positions. This is consistent with the process that was undertaken for the October 3, 2022 joint submission with the Filter Team. Instead, the government filed its own log and presented its legal positions on the documents for which there is dispute between the parties.

Unfortunately, the log submitted by the government is not fully accurate as to the Plaintiff’s position on various documents.

In light of these facts, the Plaintiff will file our position on the documents that remain in dispute by the close of business on October 24, 2022.

Since Aileen Cannon decided to override Dearie and start changing deadlines randomly and unilaterally, it has been unclear what the deadlines or workplan will be on this case — the single certain thing is that, in the end, Trump will complain about Dearie’s designations and Cannon will review them de novo. Both Cannon’s original order and her Calvinball order overriding Dearie set initial deadlines for privileged determinations, but have no follow-up deadlines.

But in an October 7 order, Dearie did set deadlines. Trump’s 5-day deadline to complain about any orders has passed, and unless the Cannon Calvinball has gotten really tricksy, I’m not aware of anything overriding that deadline.

And that deadline was yesterday.

Trusty had enough time to review the DOJ filing and disagree and at least note about which items there’s a disagreement. There are only 15 documents here!!

But instead, Trump responded to the public docketing of his absurd claims by spending the time to write up a letter announcing he was taking his toys and going home for the weekend to pout. The best way to understand this action is that Trump simply doesn’t believe Judge Dearie has any authority to require actions of him.

And so Dearie could take the DOJ report and issues rulings, which might result in a report that came out early enough before the election for Cannon to have to overrule them before it. But if that happens, Trump will simply say he wasn’t part of that process.

Update: Dearie has noted that Trump’s response is untimely and given him until end of business today.

Dates

October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)

October 10: Deadline to return originals of Category B documents to Trump

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 12: Deadline to complain to Cannon about Dearie’s October 7 order; Notice of Completion submitted

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

November 12 (10 days after notice of complete): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised 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)

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59 replies
  1. JonathanW says:

    Isn’t it in their interest to speed this up so that Judge Cannon can rule before the 11th Circuit cancels the whole thing?

    (Mods I’m writing this from my phone so my IP is probably different, but I think I did my usual username and email).

    • NeoGeoHa says:

      Not if their ONLY interest is to delay, lay the ground work for future delays, lay groundwork for future complaints of inequities, win sympathy (because of perceived witch hunts) points with their supporters, or get the entire case dismissed. Everyone on TFG’s side know he is guilty and proving innocence is a non-starter, so the only other play is delay, obstruct, and hope to make enough of a mess eventually it just goes away.

      Remember, TFG is all about doing anything to survive to fight another day. No matter how futile that fight may be.

      • bmaz says:

        What a load of garbage. Nobody is guilty until a formal finding of guilt is made and merged into a conviction at sentencing.

          • bmaz says:

            That is as dumb as the original comment. Don’t make people here stupid. And, by the way, the context was legal and in relation to the US judicial system.

            • JonathanW says:

              Hi bmaz,

              I’m sorry my original comment was dumb! I was typing on my phone and didn’t ask my question very clearly. I am well aware that the strategy up until now has been to delay things. But I was kind of assuming that with the 11th Circuit granting the expedited appeal, the Trump team may see some newfound urgency in getting the special master process (probably via Cannon overruling Dearie) to have some findings of EP to muddy the waters. If they delay this proceeding too long, doesn’t that increase the odds that the whole thing gets canceled before any waters can be muddied?

              Anyways, I know I’m a newbie to this site, I hope the longer version of my question is less dumb!

              • Wajim says:

                Yeah, good not to mess with the b-man, as he’ll eat your face. Rayne, too. Kinda refreshing, really, to have strong moderators on this intertube; makes for higher quality and more thoughtful comments

            • smf88011 says:

              I strongly disagree with your characterization of this comment being dumb. As someone that has handled classified materials over the last 30 years and has been an ADC for about as long, just having those classified documents is enough for Trump to be considered guilty in the eyes of security clearance holders. If any of us had done what he has done, we would already be on our way to Leavenworth. The United States’ Justice System is supposed to treat everyone equally, is it not?

              Face it, Trump is guilty of the crimes by just having the documents in question. It is just taking the Justice System a little bit of time to have the paperwork catch up with the crime in question.

              What I am about to ask you is not an attack on you but what is your background in regards to the handling of US Government classified materials? If you have had a security clearance in the past, you would know that one of the most hammered things about handling classified documents has been you cannot take them out of the security area unless a specific set of circumstances were met, the documents were properly stored during transit and must go into an authorized storage facility for that level of document.

                • smf88011 says:

                  Authorized Derivative Classifier – the person that looks at a document and determines if it is classified or declassified.

              • earlofhuntingdon says:

                I repeat bmaz’s reply that this is a judicial setting and legal rules apply. Your beliefs and your purported background in “classified materials,” which underlie them, might motivate your legal arguments, but they are not what’s relevant in court.

              • bmaz says:

                I am not concerned in the least with your “comfort”.

                And Jonathan W, the “original comment” I referred to was that of NeoGoHa, not yours!

                • JonathanW says:

                  Thanks for clarifying bmaz. But I do think, especially reading Peterr’s comment below, that I may have been a little too simplistic in assuming that the Trump team would want to accelerate things.

          • Doug_Fir says:

            It has finally dawned on me that, because of the nature of the material Dr EW analyses and the detailed depths of those analyses, on this site the legal meanings of words always take precedence over the common meanings. Therefore, “guilty” should always be used in its legal sense, something like “found guilty by a judge or jury” (NAL), rather that the common, idiomatic sense of “has obviously done a bunch of criming”. So when I (mis)use a legal term in its common meaning and end up writing something that’s legal garbage, Dr Bmaz may (pointedly, he’s a cactus after all) call out my misusage.

            Every day I appreciate Dr EW’s incisive analysis, and Rayne’s and Bmaz’s vigorous moderation. Time to DONATE again!

        • Nick Barnes says:

          Would it be less garbage to write something like “Everyone on TFG’s side knows that he committed these various crimes” ?

          • earlofhuntingdon says:

            “Knowing” and proving in court are not the same thing, something comments like these have made bmaz repeat hundreds of times.

            • bmaz says:

              This stuff just cracks me up. You have to get stuff formally into evidence, it doesn’t just happen because one human thinks they “know it”. Is there a direct fact witness involved? Is there a properly designated custodian of records? Is it a properly generated governmental record? Is there a stipulation with the adverse party? How you going to get it in? It doesn’t just happen by magic.

        • Mark says:

          There is a concept in law called prima facie, you may have heard of it. For those that do not: “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” There is no plausible legal defense for the crimes involved in what Trump has done. He was caught red handed, his only real hope here is if Judge Cannon is allowed to continue on this case and she rules that presidents and former presidents have absolute immunity from any laws, and the SCOTUS concurs. Otherwise he is at severe risk of indictment and prosecution for crimes that conceivably range up to capital espionage charges.

          As he has not been formally charged with a crime at this point he is like all the rest of us, required by law to obey judicial orders. Failure to obey the deadlines set by the special master would at the least be contempt of court and I hope Judge Dearie nails he and his team to the limit of the law on that, but there is a point at which delaying and raising spurious claims regarding understanding of the judges orders becomes obstruction of justice, also a crime, most believe that point has already been crossed with the aid and comfort of a sitting district judge named Cannon. If the 11th circuit holds that Cannon never had a reasonable claim to jurisdiction then I can see the possibility of a conspiracy to obstruct justice charge headed her way.

          Trump has not yet been charged with a crime by the United States, but that does not make him innocent of crimes he has committed. We all know he is guilty and we all know he will be charged. He may be working on a bogus diminished capacity defense but that will fail as these have been severely restricted in the US. And since his crime spree has lasted this long and is still ongoing I doubt he can claim he is not culpable due to capacity, if he has the capacity to do the crimes he has the capacity to stand trial for them.

          His only real hopes now are that he gets one solid MAGA on the jury to hand him a hung jury; jury nullification. Either that or to get on the 757 of his and take off. He is the very walking definition of flight risk.

          Personally, I believe that this is an extraordinary case, and while his may be a case of stochastic terrorism I do believe he could be charged with capital crimes up to and including treason. I also think because they include top secret and national security issues he should be rendered to Gitmo as other terrorists have been, and be tried by military tribunal, after all he may have technically been a civilian as president but he was also commander in chief when he planned and started executing his crimes. There is also no other venue available with the appropriate security clearances to view the evidence, and at least in the case of treason or espionage much of the evidence is highly classified.

          There really should be no complaints from him, he did this to himself.

          • bmaz says:

            Lol, you are barking up the wrong tree to lecture me about what constitutes a crime, and prima facie evidence thereof. And just about every defendant is “defensible”. That does not mean the defense works, but one can almost always be attempted. And, yes, I could do that as to Trump. But he does not pay, and it would cost a lot.

            Also, again, conform your user name to our new standards.

            • timbozone says:

              OT here but I am changing my site name to ‘timbozone’ immediately.

              Thank you for your patience, bmaz and Rayne! I hope the transition of the back end here, whenever it occurs, is with minimal pain.

  2. NeoGeoHa says:

    Not if their ONLY interest is to delay, lay the ground work for future delays, lay groundwork for future complaints of inequities, win sympathy (because of perceived witch hunts) points with their supporters, or get the entire case dismissed. Everyone on TFG’s side know he is guilty and proving innocence is a non-starter, so the only other play is delay, obstruct, and hope to make enough of a mess eventually it just goes away (as has been his playbook for every legal matter he has ever been engaged in). Those have all been civil, Im really going to enjoy a criminal trial should that ever be brought (GA, NY, Federal).

  3. Peterr says:

    At the bottom of the letter, after the listing of the four lawyers representing Trump and their contact information, comes the inevitable line: “Counsel for Plaintiff President Donald J. Trump.”

    Whatever else they wrote, they know how they have to refer to their client.

    • xbronx says:

      Are there any legal ramifications for Trusty signing his/their filing as “Counsel for Plaintiff President Donald J. Trump.” To my NAL mind, accepting this without comment sounds at worst that Trusty sees Trump as still POTUS or at worst, co-POTUS – neither of which are true. Again, I am clearly NAL.

      • earlofhuntingdon says:

        It has no obvious legal effect. It’s like a forger signing someone else’s name: it’s not legally that person’s name – or title. But it does show blatant disregard for the facts and a willingness to deceive. If Dearie were the presiding judge, rather than Cannon, I suspect he would tell Trump’s counsel to correct their obvious error or be held in contempt.

        • xbronx says:

          In the same spirit as Jim Thorpe addressing the King of Sweden with “Thanks, King”, I’d like to say Thanks, Earl.

      • [email protected] says:

        Not that anyone cares, but the etiquette-ers have weighed in on this:

        Emily Post (undated):
        @ emilypost.com/advice/addressing-a-former-president-of-the-united-states:
        ‘When addressing a former President of the United States in a formal setting, the correct form is “Mr. LastName.” (“President LastName” or “Mr. President” are terms reserved for the current head of state.) … In an informal setting (such as a private lunch), it’s acceptable to use the title the ex-official held. Here, you could refer to former President Jimmy Carter as either “President Carter”…[but] many people ignore this convention and refer to former Presidents as “President Last Name” when they are in settings where nearly everyone would afford them the honor of the title. Technically, this is still incorrect but there are enough former Presidents allowing this that it has become a somewhat common mistake.”

        Miss Manners (1992):
        @ WaPo /archive/lifestyle/1992/10/21/addressing-a-former-president …
        ‘The rule is that there is only one president of the United States at a time; therefore, the title does not accompany anyone out of office. Many lesser titles do, however, so … Senator Nixon, …Governor Reagan and Governor Carter [are proper.]”
        In answering why so many people refer to former presidents simply as “President Soandso”, she replies in her odd 3rd person voice:
        ‘Miss Manners imagines that citizens so address them, in error, from an *excess of respect,* which she cannot find it in her heart to condemn. But …people who have held this office may actually prefer to follow the example of General Washington or Mr. Jefferson (as they were known in retirement) and be honored with less pomp rather than more.’ [ emphasis mine ]
        She continues:
        ‘This is in keeping with the egalitarianism to which all our leaders assure us that they are devoted. Also, it’s a lot easier for [former presidents] to be becomingly modest than it is for anonymous citizens.’

        ‘Yeah, *that* describes TFG,’
        this poster deems it not improper to utter with a wee-bit of sarcasm.

    • Lit_eray says:

      The J6th committee addresses him as President in its subpoena. I think they should have addressed as “The former 45th President”, or some such. Subpoena: https[break]://d3i6fh83elv35t.cloudfront.net/static/2022/10/20221021-J6-Cmte-Subpeona-to-Donald-Trump.pdf

    • Mark says:

      Nice catch Peterr; what do you think? I say this is their way of saying A) he is a sitting president who actually won the election so thus immune to prosecutions, and B) might be angling for the SCOTUS to have to judicially settle the 2020 election in his favor.

      No matter what else it means, he is still not getting away with his blatant crimes because SCOTUS already ruled that no man is a king in the USA, while he was in office. But, any hope the court would even take the case is futile. They may be planning to argue that he is immune to all of this because he and not Joe Biden is in fact the lawful president of the United States, that Biden did not have the authority to waive executive privilege as a result. And the sheer psychedelic level of absurdity is plain as the noses on our faces, but then again so is everything else in the case of Donald Trump. At some point our legal system is either going to get tired of his crap or it will break entirely.

  4. Peterr says:

    Not for the first time, this puts Dearie in a pickle. If he holds Trusty to the five day deadline and tells him “You had five days and I got nothing from you, so I’m making my rulings without your input,” the howling will be loud and long, no doubt ending his time as Special Master. If he allows Trusty to file late, then (as any prof will tell you) he knows that the next deadlines faced by Trusty will likewise be stretched if not ignored. Either way, he can’t win.

    Of course, by now he also knows that Cannon will do whatever she wants, so he probably doesn’t care how Trusty will act next with respect to him. So Dearie will be working and ruling not with an eye toward Trusty or Cannon, but the 11th Circuit and SCOTUS.

    Something tells me Dearie is going to work as quickly as possible to dispose of all this and put it back in Cannon’s lap. The timeline above has both sides bringing their disputes to Dearie by Sat Nov 12, and he has until Fri Dec 16 to make his recommendations to Cannon. Given his reactions to Trump’s implausible attempts to designate certain documents as both personal and presidential, I think he is ready to move very very quickly with this, once it all finally gets to him. I also think it will not be pretty for Trump.

    Imagine if Dearie made his rulings and recommendations on November 15th — not an impossible feat, given the quality of Trump’s representations to date — which means that DOJ could include references to them in their 11th Circuit filing on the 17th . . .

    • earlofhuntingdon says:

      Dearie seems old school: respect for the court and its orders, along with process generally, are fundamental to him. Trusty’s Trumpian, rather his Marjorie Taylor Greenean, denial that he’s not bound by any rules won’t go far with him. Cannon is another matter. Fortunately, those things seem to matter to the 11th Cir., too, which is where all this horseplay will end up being resolved.

      • Arteberry says:

        On the appeal, DOJ can play the situation to its advantage whether the special master process resolves quickly or slowly. If Dearie rejects Trump’s EP claims before the DOJ reply brief is due, or even before the oral argument, DOJ can certainly highlight that finding as corroborative of its own argument. Suppose, on the other hand, Trump manages to muck up the special master process, though Dearie is obviously intent on preventing that. DOJ then can properly tell the 11th Cir. that the special master remedy for this case devised by Cannon is working too slowly…or not at all. This fact would give the Court of Appeal more reason to shut down the civil case and let the DOJ immediately get back to making investigative use of the non-classified documents.

        The 11th Cir. will likely take into account that shutting down the case now—which it can do with or without consideration of Trump’s EP claims—may allow the court to dealing with a subsequent DOJ appeal on potentially hundreds of EP claims that have been sustained by Cannon (overruling Dearie, naturally). Appellate courts are usually pretty good at seeing what may develop in a case and finding ways of cutting down their potential workload.

    • Opiwannn says:

      He doesn’t need to “win”. He’s a senior judge. Obviously, I don’t have particular insight into his inner mental workings, but given his age, status, and current position, I doubt he cares one way or the other about howler monkeys howl about, nor whatever Judge Cannon may do regarding his status as Special Master. He currently has a job. He’s doing that job. He set a deadline, the parties in the matter at hand can either follow it or not. If the judge doesn’t want his deadlines negotiated, he doesn’t have to negotiate. That’s what the whole “dead” in deadline is for, after all.

      [Note to Rayne and mods: changed username slightly to adhere to 8 character requirement – Opi]

      [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  5. Waban1966 says:

    Judge Dearie knows how to handle this (including the certain Judge Cannon overrule). No doubt he has been in these positions many times before. For example, he has already demonstrated the ability to paint Trump in a bad light, so that DOJ can use in in the 11th Circuit, and even if Judge Cannon overrules.

    On the unilateral deadline violation, this dynamic comes up all the time with mandated “joint filings” when one party is acting in bad faith and refusing to agree to anything. Trusty was always going to blow off deadlines, by filing descriptions that are too vague, etc.

    DOJ did it right: they filed around 5pm (I think), and if it ever becomes an issue they can say that the deadline was 5pm and Trusty wouldn’t respond to their draft. This forced Trusty to file quickly in response, and allows Judge Dearie to rule on Monday right after Trusty files on his own new deadline (Tuesday morning latest if Trusty goes at 1159pm). Trusty was probably insisting on short descriptions of the disagreements and not briefing, to try to force another delay. DOJ doing its briefing yesterday means now Trusty actually has to take a position. Or not take a position and then things are again where DOJ can point out to the 11th Circuit that Trump isn’t willing to even assert his positions — now the legal positions, before it was refusing to even designate.

    DOJ has already told Judge Dearie exactly what to expect because they described Trump’s position. Therefore, Judge Dearie can work on a ruling over the weekend. Yes, on a quick ruling Trump will complain that Judge Dearie didn’t really consider their pleading long enough. But Trump would complain of a rigged process no matter what. Now DOJ will get to use Judge Dearie’s rulings in the 11th Circuit.

    Indeed, Judge Dearie could even rule right away in order to goad Trump into going to Judge Cannon right away, before the Nov 10 deadline for Trump’s brief in the 11th Circuit. That’s a Catch-22 for Judge Cannon, who is unpredictable (she has swiftly overruled sometimes, and just withheld ruling other times like the unsealing motion). If Judge Cannon quickly makes ridiculous decisions, like her original order and the Calvinball order, then it looks even worse/arbitrary for her in the 11th Circuit. Helps support a reversal on any arbitrary-and-capricious standard. Or If she waits, the 11th Circuit can de facto rely on Judge Dearie. And thus Judge Dearie effectively eliminates Judge Cannon’s de novo overrule power that she has tried to retain for herself.

    Judge Dearie has a weak hand only very technically, and has demonstrated brilliance in best working around Judge Cannon, since he has the 11th Circuit intertwined here. THEY could completely overrule Judge Cannon, in advance; indeed by saying that Judge Dearie never should nave been appointed.

    Absolutely delicious maneuvering; defeating Judge Cannon’s authority to overturn everything Judge Dearie does by maximizing the chances that Judge Dearie rules and then the 11th Circuit wipes out the whole process using (or being influenced by) those rulings, eliminating Judge Dearie’s own position.

    The more I see it, Judge Dearie is doing it as well as can be done.

    • Elvishasleftthebuilding says:

      Am I correct in thinking (contrary to what I thought previously) that maybe there might be some consequences for Judge Cannon if she continues to issue legally nonsensical orders? Is there the possibility that consequences (in addition to being overruled) from the appellate level, say in the level of administrative sanctions (understanding that any complaint from the public or a lawyer is likely to fail)?

      If shame or overruling is the only remedy, it’s unclear to me that this is a sanction that would matter to Judge Cannon.

      • The Old Redneck says:

        The short answer is no. She is a federal judge with a lifetime appointment. Short of something which would justify impeachment or recusal from the case, she can continue to issue all the goofy orders she wants.
        You can see why it’s important to have serious people, properly vetted, to fill that position.

          • earlofhuntingdon says:

            Yes. Last count I saw was that there are eighty something open judicial slots. Biden has not nominated names for all of them. It’s pants and hair on fire time for Biden and Schumer, or Aileen Cannon’s behavior will seem middle of the road conduct. There are undoubtedly quite a few other nominations pending, too.

            It’s common for such large numbers to be filled en masse rather than individually. It would be one thing to try and fail to fill them all. Not trying would be a recipe for extended disaster.

      • nedu says:

        >… if [federal judge so-and-so] continues to issue legally nonsensical orders?

        Curtly, bmaz has already answered your question–in this specific context.

        But, at least near your question, there’s a large, important issue lurking submerged. One that deserves surfacing momentarily.

        First result from a quick google: “Life Tenure for Federal Judges Raises Issues of Senility, Dementia

        The last impeachment for mental incapacity was in 1803.

        Returning from that deep public issue to this specific context, I haven’t yet seen any hard evidence of motivation behind Judge Cannon’s decisions in this case. Seems most everyone here just sez, ‘oh, loose canon’s a fed-soc maga’, and hence….

        • Elvishasleftthebuilding says:

          Bmaz curt answer was just fine. I don’t think there is any question that Judge Cannon is not mentally competent. The impeachment standard at this point would seem to be Douglas’ standard – whatever Congress says it is (i.e. is the judge behaving property?)

          Is there a credible argument that Congress could say, limit the tenure of a judge to a specific term? It would seem that the language that judges hold their offices during good behavior has been interpreted as requiring a lifetime tenure. But is there a source document (judicial decision) that mandates lifetime appointments? If there is such a document, then it would seem that all of this talk about Supreme Court term limits is nonsense.

          • bmaz says:

            The source document is Article III of the Constitution. And it is unlikely to be amended again in our lifetimes. And, yes, while Judge Cannon may be particularly ideological, there is not one iota of evidence she is not mentally competent. There is a huge difference between those two concepts. She certainly is noxious, but is certainly not stupid.

          • WilliamOckham says:

            It’s not helpful to go down the “my political enemies are mentally incompetent because they disagree with me” road. That road ends in tyranny.

          • earlofhuntingdon says:

            Let me correct that for you: “There is no question that Judge Cannon IS mentally competent.”

            She is also brazenly partisan, but that’s not the same thing as mentally incompetent. As WilliamOckham points out, that’s a formula used to imprison political dissidents in Russian mental wards.

            Sadly, Cannon walks in the footsteps of several ridiculously well-regarded senior Republican judges.

          • Mark says:

            If the standard for continuing in this lifetime appointment is boiled down to “serves at the will of the congress,” then you can bet anything you can own or steal that the MAGA congress next year is going to go right down the list of all federal judges and impeach any who they even suspect has a whiff of disobedience to their orange spy master and replace them with der Volksgerichtshof and a Sondergericht to try all democrats in government currently. All they have to do is make an accusation no matter how patently absurd or false, and when it goes to arbitration for employees or impeachment for elected officials, or to a criminal court for those that fight the consequences of standing up for the constitution, we will see that they own the judiciary, and that is the key to owning the country. Voting laws do not matter if there is no court that will uphold those laws, no law will matter if no MAGA judge will enforce it.

            Pardon me while I go check to see if my Irish passport is still valid.

            [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Mark.” We are moving to a new standard in usernames; please select a unique one with a minimum 8 letters. Thanks. /~Rayne]

            • bmaz says:

              “Mark” is not going to work as a user name. The new standard is differentiation and at least eight characters. Please settle on one and let us know.

  6. HikaakiH says:

    I have a question following the discussion about consequences for Judge Cannon: How tricky would it be for future litigants of politically charged issues, or indeed issues that merely involve notable political figures, to claim an apprehension of bias in Judge Cannon and demand her recusal?

    • earlofhuntingdon says:

      This is not a fruitful line of inquiry. Politics in the judiciary are inescapable, more now than earlier, though corrupting the judiciary has frequently been a goal of mobsters and political movements.

      The Eighth Circuit (Arkansas to North Dakota, west of the Mississippi), for example, just invented a reason to issue a nationwide injunction, barring implementation of Biden’s student loan forgiveness program and force the Supreme Court to consider it again. ACB denied an earlier, less aggressive challenge coming from another circuit. The S.Ct. justice overseeing the Eighth is Brett Kavanaugh.

      It’s a reminder that Biden and Schumer need to make a major effort to ratify 2022 lame duck session judicial and political appointments. And a reminder that both need to think bigger about judicial reform, including limiting to a single DC-based court the authority to issue nationwide injunctions against the USG.

    • JonRamDo says:

      I remember it being reported (WaPo) that Judge Julius Hoffman (Chicago 7 trial), was managed into not being assigned cases, by declaration of “an executive committee of the court system”. (U.S. District Court for the Northern District of Illinois). Must have been very unusual circumstances to warrant that action.

      • Christenson says:

        From wikipedia: (https://en.wikipedia.org/wiki/Julius_Hoffman)
        In 1982, the Executive Committee of the United States District Court ordered that Hoffman not be assigned any new cases because of his age and complaints that he was acting erratically and abusively from the bench. However, he continued to preside over his ongoing cases until his death from natural causes the next year, a week before his 88th birthday.[6]

        This was for erratic behavior, the bias and disrespect had been going on for many years. As bmaz says, lightning will strike you twice before it happens to Judge Cannon.

    • bmaz says:

      Nothing. The House could not enforce their own subpoena if their lives depended on it. See Bannon, Steve. Ride it out and then actually file a motion to quash. This is nothing but another PR stunt.

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