John Lauro’s DC Delay Tactics Backfire in Florida

As I noted, right after Judge Aileen Cannon suggested, during a hearing on November 1, that conflicting trial schedules in DC and Florida meant she’d likely delay the stolen documents trial scheduled for May 20, Trump’s lawyers in DC filed to stay their DC trial. DOJ notified Judge Cannon right away that Trump had done that — basically proving the contention they made in the hearing that Trump was just stalling.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

Judge Cannon hates to be embarrassed and probably was particularly perturbed that DOJ suggested she was allowing herself to be manipulated. She filed an order basically telling them never to do that again.

The parties are hereby reminded of the requirements of Local Rule 7.8 on Notices of Supplemental Authority. Except as authorized by Court order, the substantive content of any such notice (or response) may not exceed 200 words and may not be used as a surreply absent leave of Court. Future non-compliant notices or unauthorized filings will be stricken without further notice. Signed by Judge Aileen M. Cannon on 11/3/2023.

But it worked, at least for now. Judge Cannon has issued an order revising pretrial deadlines, some of which (such as a December response to a government motion already filed) don’t make sense at all. But she has not delayed the May 20 trial date and won’t consider it until March 1, at which point it will be clear whether the DC case will go forward that month.

Following review, it is ORDERED AND ADJUDGED as follows. Defendants’ Motions to Continue Pre-Trial Deadlines are GRANTED IN PART for the reasons stated below. Defendants’ Motion to Continue Trial, currently set for the two-week period commencing on May 20, 2024, is DENIED WITHOUT PREJUDICE, to be considered at a scheduling conference on March 1, 2024, following the initial set of pre-trial and CIPA steps in this proceeding as outlined below.

This increases the chances that at least one of these trials will go foward before the election.

193 replies
  1. vigetnovus says:

    I hope you are right Marcy. I still think this may just be window dressing for now, she will likely just delay things by delaying (or more accurately letting Trump/Nauta delay) the CIPA proceedings. Nauta, in particular, seems to be an area where there are lots of greymail shenaningans that the defense might try, and she might rule in their favor, even thought Nauta is not charged with Espionage Act violations (a wise move on Jack Smith’s part). If the CIPA schedule is so woefully off track come March, I expect she will then grant a continuance of the trial past the election.

    In the DC trial, I think it all hinges on how quickly DC Circuit can brief, hear oral arguments and rule on presidential absolute immunity, and then whether or not SCOTUS decides to grant cert. If this goes all the way to SCOTUS, doubt that trial will happen before the election.

    • emptywheel says:

      There are a lot of smart people raising caution on the Toobz. Her trial will not be in May. But before the election may be doable.

      I don’t guarantee we’ll have either trial by the election; to have both would be surprisingly good.

      • dannyboy says:

        Another view from Lisa Rubin:

        1/After moving the goal posts on pretrial motion practice and preserving her May 2024 trial date for now, Judge Aileen Cannon has cemented her role as the Lucy-with-the-football of the federal judiciary.
        2/ She’ll never block or tackle the government, but she’ll likely postpone the classified documents trial at or after a March 2024 hearing. And she’ll get there one small, seemingly reasonable, and/or even hyper-technical play at a time, despite it being as predictable as Charlie Brown’s landing flat on his back.

        • BRUCE F COLE says:

          One isolated phrase in her Order yesterday jumped out at me, a phrase — unlike the bulk of that 9 page document’s perseveration on the volume of Discovery and the travails of Trump’s many indictments — that received not a syllable of her rationale:
          “…Defendants need more time to review the discovery in this case. This Order aims to afford that opportunity in a reasonable fashion, * balanced against the public’s right to a speedy trial. *” (bottom of 2nd paragraph of the DISCUSSION section on page 6)

          As we all know, the right to a speedy trial guaranteed by the 6th Amendment is a defendant’s right, not the public’s right, and that’s what struck me. Since she offers no explication for that phrase, where did it come from?

          Certainly the public does have a keen interest in seeing all of Trump’s cases adjudicated before the election 12 months from now since he’s likely going to be the GOP candidate, but that keen interest isn’t a “right of the public” in any legal sense as far as I can see, even though there is certainly a compelling civic need to have all the facts laid out that have led to all those indictments before we cast our votes. And that public need to know isn’t relegated to this case, either, so that doesn’t fit the meaning of that phrase as far as I can see.

          There is a “right” though, of the National Security establishment (more accurately described as an “exigency”) to get to the bottom of just how severely Trump’s documents theft and exposure of same to our adversaries and other bad actors has compromised our nation’s security and increased its vulnerability to all manner of harm. And that exigency can be framed as a public need for getting to the bottom of it asap, since exposure to harm on a national scale affects all of us.

          Is that the “public’s right to a speedy trial” that she’s “balancing” against the alleged perp’s need to acquaint himself with all the materials he stole and had in his possession for 2 years where foreign agents were known to have frequented?

          And that raises the further question: why didn’t she elaborate on that right of the public, as she did so thoroughly for the rights of Defendant Trump to wrap his head around the sheer magnitude of his alleged crimes?

          Am I missing something obvious?

        • bmaz says:

          Yes, you are missing about everything, including repeated advisories to you not to write 400 word answers to simple questions.

        • SteveBev says:

          Re the interest of the Government and public in fair and speedy trials

          See eg Government opposition to stay (DC proceedings)

          P 16 et seq discussing and rebutting defendant’s claim that the constitutional right to fair trial is the defendant’s alone.
          The Government has repeatedly made this and similar points wherever and whenever Trump has argued 6th Amendment rights belong to the defence only.

        • BRUCE F COLE says:

          That pleading, as you note, was submitted to Chutkan in response to the admin stay of her gag order, so while it’s a good argument to have in mind as relates to all of the Trump trials, it isn’t something Cannon was responding to in yesterday’s Order, nor does it relate to trial speediness, only to fairness as a compelling public interest in a separate case.

          Cannon’s Order yesterday was partly in response to Bratt’s filing opposing Trump’s trial date adjournment:

          (The transcript of the Nov 1 hearing on the motion hasn’t been released yet.)

          Bratt made no argument in that filing concerning a public interest in trial speed, even though it would have been a decent tack, imo. It just strikes me as odd that she’d drop that phrase into her Order without so much as a passing comment regarding what prompted it.

        • SteveBev says:

          The point being therefore is the set of propositions contained in the motion I quoted, are accepted as the true legal position. And Cannon’s statement reflects the fact that the judiciary generally treat the issue as trite law.

          It was necessary for the Government to actually plead the point because in the argument before Chutkan, Trump misstated the law, and needed to be rebutted with a statement of the true position.

          That Trump’s misstatement of the law re the meaning of the 6th Amendment reflects a common misconception amongst parts of the public is part of the purpose- his pleadings, and their distortions of fact and law, are mainly propaganda efforts.

        • SteveBev says:

          One interpretation of the possible reason she deliberately included the observation, is that she is appeal proofing the record of her decision making by demonstrating she took into account relevant factors.

        • bmaz says:

          Yeah, and not sure that is a bad thing. Allowing some flexibility to CIPA issues and motions is not presumptively a bad thing. But she should be more adamant that the trial date will remain firm and Trump should quit stalling.

        • SteveBev says:

          Yes indeed.

          You have consistently cautioned that criticism of Cannon should be appropriately nuanced, and the tendency to base interpretations of everything she says or does on presumptions of malignancy/incompetence is not reasonable nor helpful.

        • BRUCE F COLE says:

          If that’s the case, it was the most perfunctory appeal-proofing ever, I’d wager: a seven-word wonder! “Trite” definitely nails it.

          Smith in his stay-removal argument, ohoh, brings in pages and pages of backup. He explains Trite Law without being even remotely trite.

          Cannon, in contrast, embraces triteness in that one-sentence nod to non-Trump interests.

          I’m wondering if Pryor, by dint of his Canon 3B(5) responsibility to monitor timeliness in his court might have mentioned something to her after Trump filed his adjournment-until-never motion — on the order of “The government needs to get to the bottom of this CIPA disaster sooner rather than later” — and that throwaway line was her way of checking that box for him?

      • Attygmgm says:

        When this news broke my first thought was: clever. Too obvious to delay the trial herself, so she’ll hold the date NOW, appearing independent, then foul up the CIPA rulings so badly it will compel the Special Counsel to take an appeal. When THAT delays a trial it won’t have been her doing.

        Pure speculation, and I hope I am wrong, but a more graceful way to manipulate without appearing so.

  2. flounder says:

    Trump is going for the legal equivalent of “Three Stooges Syndrome” from the Simpsons. In the story, Mr. Burns goes for a checkup and the doctor says he’s the sickest patient he’s ever known, but all the germs are trying to go thru the door at once and get stuck. Trump has so many court cases that they are getting stuck going thru the door all at once!

    • gruntfuttock says:

      Cannon might be willing to help Trump where she can but I guess she doesn’t take kindly to his lawyers trying to play her for a sucker.

      • velcroman says:

        I read that as “they were too clever by half (not a compliment) but I never thought I would have to acknowledge they are clever at all”

        • gruntfuttock says:

          Agree on the meaning of ‘too clever by half’. But I don’t think it’s fair to say that they’re not clever at all: they passed bar exams (unless they bought them from Trump U*).

          But perhaps Trump’s lawyers forgot what bmaz keeps reminding us of: Cannon isn’t stupid. She’s willing to go along but not willing to be a patsy for their abuse of the legal process.

          Which I think is a long-winded way of saying I was agreeing with P’villain?

          *If Trump gets back in power, buy a free law degree with his tasty breakfast Trumpicles (guaranteed to make you rich and powerful).

        • earlofhuntingdon says:

          Clever is normally beyond smart or bright, but carries with it a strong whiff of craftiness and opportunism. Passing a bar exam is not being clever. It means you did the homework.

        • gruntfuttock says:

          Okay, I’m sorry, I’m not trying to play word games.

          I don’t agree with Trump’s lawyers any more than you do but I don’t think they are idiots. It would be nice to think they’re all stupid but I don’t think it’s true. And we underestimate them at our peril. We know what he’s planning if he gets his second term.

        • Bruce Olsen says:

          As someone old enough to watch the original prime-time TV show, I can tell you that’s a pretty great reference.

        • earlofhuntingdon says:

          The OED reference in that blog captures the idea. It means trying hard to be clever, that is, something you’re not. Secondarily, it can also mean being clever, but so obtuse it defeats the cleverness – like Chris Kobach. It’s complicated by an elite culture’s attempts to isolate itself from competition from the lower classes.

          According to the culture fostered for centuries by elite English public schools, trying to be smart or clever is an epithet: those who are, needn’t try, they just are. There’s only room for the effortlessly brilliant. Trying “too” hard to be clever is a double epithet. A related irony is that that standard was a small elite’s attempt to keep out those who worked for their success, rather than inherited it.

        • gruntfuttock says:

          Have you read ‘The Surgeon of Crowthorne’ (aka ‘The Professor and the Madman’), by Simon Winchester? I suspect it might be up your alley, as it were :-)

        • earlofhuntingdon says:

          The OED is a social history of the English language. Definitions, word origins, and pronunciation guides – traditional contents in dictionaries – are only part of its contents. A good friend’s boss’s son was one of the editors of OED2, so, yes, I’m familiar with its history. Thanks.

  3. scroogemcduck says:

    Judge Cannon’s order is fine, but she has set up a cumbersome and contentious CIPA process which will make her eventual decision to delay the trial significantly perfectly defensible. This trial will not happen before the election.

    O/T post-script, Elise Stefanik has filed a judicial ethics complaint against Judge Engoron which, in addition to being completely indefensible bullshit on its own terms, is also a transparent doxxing of the judge’s law clerk and a continuation of Republican attempts to unleash the mob on her, after the judge shut down Trump and Trump’s lawyers previous attempts to do so.

    • Rugger_9 says:

      Stefanik is opening a box of pit vipers and one will bite her in the butt. Engoron is a NYS judge which limits what a US House Representative can do, plus she is also not even remotely a party to the litigation.

      All this will do is make AG James wonder why Stefanik wanted to jump in now, and my just go looking for a nexus.

      • SteveBev says:

        1 Aren’t the proceedings of the judicial commission supposedly confidential? And doesn’t Stefanik’s publicised complaint accuse the law clerk of misconduct even though she is not personally subject to the jurisdiction of the Commission?

        2 In any event, by virtue of inserting herself into the proceedings by the terms of her complaint – which is is only concerned with the conduct of the judge and his staff vis a vis these particular proceedings- has not Stefanik made herself an ‘interested party’ in the ongoing proceedings? Thus making herself hereafter the subject of restraint regarding further comment on the role of the law clerk within the proceedings?

        3 So wouldn’t it be open to Engoron to expand his gag order to Stefanik, and require her to remove the post which in terms targets the judge’s staff?

        So has Stefanik been too clever by half? Or am I guilty, by overthinking the matter, of being less than half as clever as I think I might be?

        • Rugger_9 says:

          I think Engoron will let this go, but I’m pretty sure AG James will be looking at whether there is a conspiracy involving Stefanik to interfere with a judicial proceeding if this stuff continues.

  4. Sussex Trafalgar says:

    Judge Aileen Cannon was and still is unqualified to be a judge. The rulings against her by the 11th Circuit CoA proved she was unqualified.

    The University of Michigan Law School has a history of producing excellent attorneys. Judge Cannon is not one of them.

    • bmaz says:

      This is complete bullshit. Cannon is more than qualified to be a judge. Don’t confuse rulings you don’t like with root competence.

      • Sussex Trafalgar says:

        Sorry BMAZ:

        You are 100% wrong on this one!

        Have three shots of tequila while pondering the beauty of the desert flora and fauna!

        • earlofhuntingdon says:

          LOL. Sounds like you’ve already been enjoying those shots yourself. Being wrong in one or a series of decisions does not make someone a bad judge. We can all speculate about Cannon’s motives here, but we don’t know. We need more evidence.

          As for Cannon’s academic and professional qualifications to be a district court judge, they were a little thin, but within the normal range and above the standard set by other Trump nominees and several of BushCheney’s Liberty U. appointments. Do I like her case management and apparent priorities as much as I do Judge Chutkan, of course not.

        • bmaz says:

          No, I am not wrong in the least, her qualifications are fine. Again don’t conflate “qualifications” with how “you” would like her to rule. It is not about you.

        • bmaz says:

          Unlike Litman, I will wait and see. There is nothing that demands his alarmist view….other than, as a TV lawyer, he is now paid to do so. Beyond that, as Earl would say, “Habba dabba do time”. Court is not going to mistry the case, this is purely for appeal purposes

    • scroogemcduck says:

      Unlike many Trump appointees, the ABA rated Cannon “qualified”. I believe she is qualified, but not impartial.

    • Ginevra diBenci says:

      Sussex, have you gone back and reviewed her senate confirmation record? I was as full of dudgeon as you seem to be, but I had to admit that (like my superb Democratic senator) I probably would have voted for her too, based on her pure qualifications.

      I like Scroogemcduck’s “qualified but not impartial” formulation, except I happen to believe none of us is truly impartial; the question is whether we can make judgments fairly and based on facts and law, not on our biases.

      Which is why bmaz would make a great juror, if they let him through the vetting process.

  5. Matt Foley says:

    Don’t let Trump’s 91 felonies distract you from his $16 trillion lie. He promised to eliminate Obama’s added $9 trillion debt but instead added another $7 trillion debt.

    That’s some fiscal conservative genius right there. Why aren’t Repubs bragging about this? Gimme 4 more years of that. Another pandemic would be great, too.

  6. sandman8 says:

    Your honor, my client is accused of so many crimes in so many different jurisdictions that he can’t possibly be expected to meet all the trial schedules. In addition, he’s probably going to be investigated for more crimes that he just committed yesterday . . . wait, let me confer with my client for a moment . . . correction, crimes that he just committed this morning.

    In the interest of due process, I hereby move that my client be allowed to have an opportunity to be elected president so that he can overthrow the current government and have these charges dismissed. My legal theory is that the due process guarantees of the Constitution grant every American, at a minimum, notice of the charges against them, a hearing before a neutral trier of fact, and at least one election to allow them to have their grievances adjudged by the entire electorate. I ask that you rule on this motion before 2am this morning, so that I can confer with my client before his next social media rant. Thanks!

    • 0Alexander Platt0 says:

      I mean, yes, kind of? He can and should get to mount a defense to all the charges against him. If there are a lot of charges in a lot of places it will take a while to get to all of them and the DOJ cannot and should not stuff him up by doing them concurrently. And beyond the DOJ we really do rely on prosecutorial discretion to prevent an even larger number of local charges from interfering with the ability to prosecute what are fundamentally federal offenses in a fair and timely manner.

    • Susan D Einbinder says:

      OK, this made me laugh out loud – partially from hysterical fear, but still – thanks for the comic relief.

  7. OldTulsaDude says:

    I trust the rule of law to get it right most of the time; the voters, not so much. How do you convince the Republican faithful their faith is misplaced?

    • Ithaqua0 says:

      Wait 80 years. Seriously, though, plenty of studies of just this question have been made, and the short answer is, “you can’t.”

    • Matt Foley says:

      “There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.’”
      Isaac Asimov

      “The alleged short-cut to knowledge, which is faith, is only a short-circuit destroying the mind.”
      Ayn Rand

      • earlofhuntingdon says:

        The arrogant, hypocritical, and narcissistic Rand would know all about anti-intellectualism and short-cuts to fame. Writing books as heavy as an encyclopedia does not make them wise or readable; their popularity is obscured by large bulk purchases of political supporters.

        • Matt Foley says:

          You don’t like her and that’s fine. Now, did you have anything relevant to say about her critique of faith?

        • bmaz says:

          You are getting a response anyway. There is nothing about “faith” in the post or Cannon’s order. That is something you and at least one other decided to hijack this thread with. Don’t do that. Give it a rest.

        • ExRacerX says:

          I’ll bite—Rand’s take is reductionist and incomplete. There are plenty of intellectual shortcuts one can take—religious faith is but one—and so her statement ignores stereotyping and other heuristic shortcuts, many of which Rand engaged in herself.

        • SteveBev says:

          “It is not a novel that should be thrown aside lightly. It should be thrown with great force.”

          —- Dorothy Parker about Atlas Shrugged by Ayn Rand

          When one mentions the obvious problems and contradictions in her work they are greeted with an almost religious parroting of her maxims. Maxims are really all they are because Rand rarely gives justification for any of her claims but simply states her point of view as emphatically as possible and then she (or her followers) accuses anybody who disagrees as being irrational.

          Her theories of knowledge, reason and verification of objective reality do not stand up to systematic philosophical scrutiny. And her constructions purporting to be theories of ethics, moral and political philosophy based on her notions of ‘objectivity’ are laughably reductive and circular.

        • Scott_in_MI says:

          Having not read Rand myself, I defer to John Rogers:

          “There are two novels that can change a bookish fourteen-year old’s life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.”

        • emptywheel says:

          That’s great. I remember having a great student at UMich once who only as a frosh discovered Ayn Rand. It was … an interesting conversation. I hope I saved her.

        • Knowatall says:

          My theory of Rand is similar in arc to Sphinx riddle:
          At 15, Atlas Shrugged is da bomb; everyone in the world is an asshole except for me and my girl…
          At 35, Atlas Shrugged is pablum, as the world is far more complicated than the simplistic jeering it entails…
          At 65, Atlas Shrugged is the bomb; everyone else in the world is an asshole, except for me and my girl.

        • Frank Anon says:

          My UM son discovered Rand a few months ago. Got so bad I had to fly out for some one-on-one discussion. I think it took, but man did he think he received absolute wisdom

        • David Brooks says:

          And the world of LOTR, while wholly imagined, is still physically possible. While the central invention in AS contravenes a basic law of physics.

        • SteveBev says:

          The principal distinction between the worlds of LOTR and AS is
          the one inspires a love of Elvish
          and the other is inspired by a love of Evilish

        • gertibird says:

          Interesting comment about The Lord of the Rings. There is an article in The Atlantic of an interview with Peter Thiel. He says this book is one of his favorite and he gets many of his views from.

        • Harry Eagar says:

          When I was at cow college, 60 years ago, the tireless Nathaniel Branden spoke 3 or 4 times a year. I had read The Fountainhead (found in my granma’s book shelf when I was 14), and knew Rand was a crackpot. but I did not then know of Branden’s role as Rand’s apostle.

          I am still puzzling over it. Cow college was almost entirely non-political, and the only people who knew of Rand were the architecture students who screened The Fountainhead every year to jeer, rather like a later generation’s midnight viewings of Rocky Horror.

          Surely there were more likely fields for Branden to prospect in?

        • Ginevra diBenci says:

          The Fountainhead starts with a rape and goes downhill from there. Rand was a male-identified misogynist asshole. I read the books so I could argue with the besotted. Did not expect them to have a renaissance. But then I didn’t expect “incel culture” either.

        • Namaste_MF says:

          Branden also created the cult of ‘self esteem’, which fails every empirical study. ‘Self Esteem’ is very high among the prison population, because it is a narcissistic philosophy. To hold anything in ‘esteem’ is to hold it above others. Holding yourself above others is obviously antisocial behavior- and we just parrot it everywhere.

          Self respect doesn’t require being above anyone else- and that is a big difference.

        • bmaz says:

          So, I guess you gave no thought to the repeated advisory that this is NOT an Ayn Rand thread. Thanks for ignoring that.

        • Troutwaxer says:

          There are two kinds of Libertarians, those who don’t know Ayn Rand was writing fiction, and those who don’t know Robert Heinlein was writing fiction!

    • Fraud Guy says:

      The problem is that they don’t have faith, but truth. Faith is belief despite doubt, and they have no doubt.

  8. JonathanW says:

    Question for the legal experts from a non-expert about Judge Cannon’s scolding of DOJ for alerting her. To a normie like me, it feels like she’s saying “next time, if you alert me to manipulation without me asking you to do so, I won’t listen”. That seems weird to me, but perhaps it’s completely normal? I’ve run into situations like this managing people in companies, and I’ve never gotten mad at the person doing the tattling, but that’s obviously not a legal setting and I know it doesn’t always carry over.

    • velcroman says:

      Technically the chastisement was for going over the word count. You can infer offense at the alert, but it is not explicit.

    • emptywheel says:

      My THEORY, and it’s nothing but a theory, is she is as worried about avoiding another embarrassing reversal as she is with helping Trump. And one thing she’s doing is trying to avoid making any real fuckups pubilc. There’s a TON that’s happening in the docket that is sealed.

      Her biggest error so far was striking DOJ’s sealed addendum in the conflicts motion, which had the result in creating two weeks of delays and forcing DOJ to say on the record all the things they had already said in a sealed motion.

        • JonathanW says:

          Thank you both for the replies, I really appreciate the explanation. I have a follow up. Am I right to guess that the emphasis is on the word *embarrassing* not the word *reversal*? I don’t mean this as a sarcastic question. I think one thing I’ve taken away from reading this site, especially from bmaz, is that she’s qualified, and that most judges want to avoid reversal full stop. But I think the implication of what you’re saying is that she’s sealing things to avoid embarrassment caused by public scrutiny of her reversible errors, not to avoid reversible errors in the first place.

          Please feel free to point out that I’m reading too much into what you said and am guilty of nitpicking here! :) But I would hope that this wouldn’t impact the circuit court reversing her or not. So if that’s her strategy, isn’t she just delaying embarrassment to when the reversal opinion is public?

        • bmaz says:

          I don’t think you can make that conclusion based on what is currently known. This case has a huge CIPA and NDI element, so you would expect quite a few sealings. Frankly, both factors are probably involved, not just one or the other.

        • dopefish says:

          They’re sealed because they discuss classified information and there are procedures for how to do that without damaging national security. IIRC about 30 of the 32 documents Trump is charged with retaining, are highly classified (SECRET or TOP SECRET, some of them with additional special handling requirements). Even discussing what those documents say–beyond the vague, one-sentence unclassified summaries in the indictment–has to be done in a specially secured location and everyone involved except the judge needs to have security clearances.

          By taking them home with him and carelessly leaving them lying around in boxes in public areas, Trump may have literally done hundreds of millions of dollars worth of damage to U.S. interests. Entire intelligence collection programs might have to be scrapped because of his selfish ignorance. We will probably never know the full impact but it was almost certainly immense.

        • JonathanW says:

          Good reminders, bmaz and dopefish, thank you both. I think it helps me see where I misread Dr Wheeler’s original reply to imply that Judge Cannon was “over-sealing” (is that even a word?) things vs just saying that stuff is happening that we all can’t see for (as you two point out) good reasons, and that embarrassing errors may be in there.

      • David F. Snyder says:

        Yes, seems very likely. She’s made some mistakes in a couple other trials and this one is high profile. If I recall correctly, this is Cannon’s first real experience with CIPA from the judge’s seat. There’s plenty of ways to misstep, though one hopes she has a good mentor to consult with. She seems to be better at disbelieving the prosecution than she is at disbelieving the defense (not necessarily a bad thing if near to balanced). I can understand her snippy response to the prosecution’s stating publicly what would better be in private, but on the other hand she only has herself to blame (highly-educated people can do stupid things just like everybody).

  9. BreslauTX says:

    Maybe delaying until March on a decision about a May trial is a move to block Fulton County from taking an open slot in May.

    • bmaz says:

      Doubtful. Federal judges don’t care about a local DA in Atlanta, and the general rule is that federal criminal cases take precedent over local state cases. That is not written in stone though, so we shall see.

    • Cargill2 says:

      Yes – I read on DKos where the author proposed the slo-mo view: the Cannon-Trump tactic is to implement incremental delays between now and March, to make it hard for both the Georgia case and the DC case to be sensibly and firmly scheduled. Might work.

      • Namaste_MF says:

        I think there is an issue in over thinking Cannon. She is a new judge who already got stomped on appeal- and this time s a complex case with high value intelligence involved a former President.

        Realistically, it shouldn’t be on her desk- but there aren’t a lot of ways to move it. If she declined other cases to make room for this one, then there is an argument- but I haven’t seen any evidence of that. Regardless of what she does, her career is toast at this point ( unless Trump becomes president, and even then it is a maybe). Journalists across the world are now digging into her housekeeper’s background. She might be a true believer- but it’s not going to help a lot. The case seems pretty straightforward. He retained classified documents in an unsecured location and didn’t return them when asked.

        I do think we over classify things- travel schedules after travel is completed. Trump has less of an argument than anyone else ever charged because he could have just declassified most documents while President! If he thought they shouldn’t be public- okay, do that. He didn’t- why? That s the big loser of his whole case.

        On the DC insurrection case, the argument isn’t what he said beforehand in a political speech. The real argument is what he did afterwards while the capitol was under attack. Failure to respond goes back to intent. If I say I wish my husband would die, then my daughter stabs my husband with a knife.. if I don’t attempt to stop her, call police, provide de first aid- I would be culpable. I anted it to happen, asked for it to happen, and took no reasonable steps to prevent it or mitigate the harm.

        • bmaz says:

          What a load of garbage. When you say “Realistically, it shouldn’t be on her desk”, do you think all cases in federal court ought be assigned by relative experience, and not the wheel (which, by the way totally favored Cannon being assigned before DOJ/Smith picked that jurisdiction, which they did not have to)? Do you think 3 years in is not enough experience to have a judge hear a matter? What were your thoughts as to Cannon before this one case? Had you ever heard of her, or just thrilled to carp now2

          As to DC, yes, the argument is precisely what Trump said both before the fact and during the fact. Good luck to your husband.

        • Namaste_MF says:

          All apologies- I am new to this format; and can see where my post was wrong.

          My post intent was more ‘In a perfect world’ a fairly new judge would not have such a high profile case. I bungled it.

  10. coalesced says:

    Having read and reread Cannon’s order, she is insinuating/hinting at an adversarial/not ex-parte CIPA 4 process.

      • Peterr says:

        Paging the 11th Circuit Court of Appeals . . .

        CIPA is about as well-structured a process as exists in the judicial system, and the minute she steps on that structure, the 11th Circuit will — not might, but will — jump on her.

    • harpie says:

      Marcy just Rexittered [?] a Roger Parloff THREAD about that:
      Nov 10, 2023 · 4:53 PM UTC

      Judge Cannon’s order today not only postpones many trial deadlines in USA v Trump (MaL)—one by >17 weeks—but suggests she may allow an unprecedented approach to a CIPA issue that may force govt to bring an interlocutory appeal … [link] [screenshot]


      .. *Then* >7 weeks later, on 1/23, Trump files “a defense challenge to § 4 motions.” This can only be possible if Cannon has granted Trump’s motion to discard ex parte procedures & proceed adversarially. (Again, she forgets to provide a date for govt to respond.)…/8 [screenshot]

      • Harry Eagar says:

        Cal McClanahan at Opening Arguments had an entirely different approach that led to about the same conclusion.

      • emptywheel says:

        I’m not sure I agree with it. I think her view on the adversarial process is undecided, leaning towards the govt. And people do have 2-day CIPA conferences all the time that are ex parte, though often over a series of weeks.

        But I tried RTing a lot of people raising other views on this. And Roger is always worth reading.

        • vigetnovus says:

          What is Brian Greer saying? He’s one of the authorities on CIPA.

          The “downside” (for Trump/Nauta) to Trump wanting an adversarial hearing is that he and Nauta would have to disclose their defense strategies to the prosecution. Is that really a wise thing to do?

        • earlofhuntingdon says:

          If you think you’ve already lost, it may not matter. And it may open an opportunity for appeal. Either way, delay until after the election seems to be the game plan.

        • vigetnovus says:

          Yeah, Greer said what I thought he was going to say, this is just delay in sheep’s clothing. But he’s been warning about this for some time on MSW’s Jack podcast, so there you go.

          And by not delaying the trial when it is so obviously going to be delayed, it also has the effect of tacitly preventing McAffee from scheduling the GA trial during the spring.


        • ExhumeHume says:

          Dear Marcy and/or Bmaz (if I may): Do you think the odds are good that, before the election, (i) there will be an appeal to the 11th circuit to get Cannon off the case, and (ii) that appeal will be granted?

        • David F. Snyder says:

          Time will tell, but given Chutkan’s ruling, surely Cannon isn’t going to kick the hornet’s nest? Saying that she “forgot to schedule” prosecution responses seems a bit prejudicial: the line above the schedule says “Additional deadlines and hearings to be set and noticed as necessary.” In fact, one might see the initial rescheduling as indicating that Cannon is likely to go with Chutkan’s ruling whilst allowing the defense to say their piece. Why schedule prosecution responses that won’t even be needed? But again, only time will tell. Hopefully she’s learned her lesson about listening to Trump’s lawyers uncritically. But then MAGAts sometimes do crazy-ass shit for that man.

        • Namaste_MF says:

          As a non-expert, doesn’t the fact that Trump had classification authority negate most arguments? If he wanted it to be published c, not classified, he could have just chosen to do that. Other than nuclear, and some other select programs/ information- he could have just declassified it as President if he believed that information should be public.

          So, what’s the argument that he even presents for retaining and hiding classified information? Winner can argue that she acted in public interest while breaking the law… what is Trumps argument? I just haven’t seen one. I am also failing to see media even make any basic argument. Presidential Records Act is the opposite- it requires you to turn over documents.

          I honestly just really don’t get it, and don’t understand why it isn’t a bigger deal. Why does half the country not care? What’s the excuse?

        • bmaz says:

          “Other than nuclear, and some other select programs/ information- he could have just declassified it as President if he believed that information should be public.

          But he never did that. The reason that is not a bigger deal is that half the country loves Trump’s bogus junk.

      • vigetnovus says:

        Yep. LIke I was about to post… why delay the trial yourself when you can force Jack Smith to do it for you.

        This is really egregious. She is basically telegraphing how she is going to rule here and laying down the primrose path for Trump to take advantage of it.

  11. The Old Redneck says:

    Far too much is being made of Cannon’s comment about the 200-word limit. Federal judges fuss at litigants all the time about exceeding page limits and word limits. She could have toned it down a little – usually those kinds of statements begin “Counsel are reminded that . . .”, but this is really not uncommon.
    The real problem here is her overall approach. Everything we’ve seen indicates she is going to slow walk this case until after the election. She’s seen enough to realize there is no real defense to the charges, so she’s going to find a way to try and run out the clock. And the decisions she makes about scheduling – as opposed to interpretations of substantive law – are essentially unreviewable on appeal.

    • earlofhuntingdon says:

      As EW implied, context suggests her needless rebuke about a 200-word limit is a placeholder. She’s using it to rebuke the prosecution and defense for embarrassing her, which she seems to like about as much as Trump.

      • Harry Eagar says:

        Doubly needless since the part that exceeded the limit was a citation reference. I concluded from that — and contrary to others here – that she really is unqualified. or corrupt. or both.

        What judge is so unoccupied that she has time to count 217 words?

        • bmaz says:

          They are electronically filed and quite easy to figure out word count. It is not like a judge has to sit there with an abacus. And, no, that has nothing to do with “qualification”. Her bona fides are fine.

      • David F. Snyder says:

        “ Your goodness must have some edge to it, — else it is none.” — RW Emerson.

        As one lawyer told me once, “David, that’s the only way anyone learns anything: the hard way.” Gruffness has its uses, as does humiliation. Humiliation often causes backlash; it’s not often the best tool to address another’s questionable decision.

  12. PostToaster says:

    Cannon nauseates me and I would say she’s “hopelessly” biased… except here she mentions that the public is entitled to a speedy trial. That seems to strike a slightly different note. So I do now have some small hope.

    Yeah, it’s a thin straw.

    • 0Alexander Platt0 says:

      I’m infuriated both at the attempted assault on election officials AND at the cop-invented hallucination that touching trace amounts of fentanyl is dangerous. I have plenty of fury to go around.

      • P J Evans says:

        The cops apparently have convinced a lot of people that it’s hazardous to touch. None of them are people who actually know anything about fentanyl, though.

  13. BruceElliott says:

    Color me cynical, but I doubt that John Lauro’s DC delay tactics have much to do with Judge Cannon’s slow walk (“mosey,” we would say in Texas) of Trump’s eventual classified documents trial. After all, a mosey is much more subtle than a postponement. It is way too early to get DOJ and the world all riled up now by granting a trial continuance today rather than simply alluding to a continuance 3 1/2 months down the road, to be further argued on March 1, 2024. But by all means look for a continuance of the trial date to emerge from the March 1 hearing. Such an outcome leaves DOJ stewing in their juices, unable to complain about a trial continuance hinted at but not granted. Not that there is anyone competent to hear a complaint, interlocutory appeal being so theoretically DOA in this circumstance.

    • P’villain says:

      It’s not like this is taking Smith’s office by surprise. It seems evident that their two-courtroom strategy was meant, at least in part, to diversify and reduce their delay risk with the election looming.

      • dannyboy says:

        Smith’s office was correct saying this:

        “This Court should allow itself to be manipulated in this fashion.”

  14. paulka123 says:

    IANAL but it seems to me that none of the various trials is going to start in 2024. I base that on the fact that it appears that the penalty phase only of his NY Fraud trial will take 3 months (I read this week that the defense will take like 6 weeks to present their case). I cannot envision that an actual criminal trial will take anything less than like 6 months.

    But who knows

    • bmaz says:

      You don’t know what the eventual timing will be, and neither does anybody else. Let the prosecutors and courts do their job.

      • dannyboy says:

        In the Classified Documents case, the phrase “Let the prosecutors and courts do their job” seems to assume that the Judge in this matter is doing the job of the Court.

        I am of the opinion that the Judge is swayed from administering Justice. This does make a big difference.

        • bmaz says:

          What a load of crap. Is the trial date still presumptively firm? Yes. Does Cannon making motion timelines more flexible a big thing? No. It remains amazing how many people on the internets are suddenly such experts on Cannon. Take a breath.

        • dannyboy says:

          I’m breathing fine, thank you.

          I can see what is happening without being an expert on Cannon.

          But thanks for trying to make that my point.

  15. Spencer Dawkins says:

    Thank you for observing that Trump and his legal team are doing what Cannon likely thinks is the worst possible thing – embarrassing her.

    She seemed fine with slowing things down until they made it clear to everyone that their goal was to play her until the election. With any luck, she’ll remember that when they make their next ingenious move, too.

  16. paulka123 says:

    I don’t know how to post links, hopefully this can be cleaned up by the moderators [**] ?ocid=msedgntp&pc=HCTS&cvid=dd7cc26070b043c1ab83c3634c01f6e3&ei=14

    Donald Trump has effectively been made exempt from campaign finance laws because the Federal Election Commission (FEC) refuses to investigate him, FEC Commissioner Ellen Weintraub has said.

    In a statement, Weintraub, an attorney and Democrat who works for the government agency, said on Thursday that there have been at least 58 instances where the body, which enforces campaign finance law in federal elections, has heard allegations against the Republican, accusing him or his family members of violating regulations.

    In at least 28 of those, staff at the Office of General Counsel determined that a criminal investigation was warranted, she said.

    God Bless America

    [** Moderator’s note: Learn how to do this yourself or risk having your comments with such links treated as spam. Delete everything after the question mark in the URL above as everything after it is tracking information about you, your device, your browser, your network, and your use of this site. None of the community here should have have their privacy violated getting caught up in your social network because you’re too lazy to bother to clean up your shared links. /~Rayne]

    • bmaz says:

      He is NOT “exempt”, there are six members of the FEC commission, but you need a majority and the GOP member will never join the Dems to make a majority. That is a far different thing than being exempt.

      • Namaste_MF says:

        So- members should just then refer to the DOJ, right? Laws aren’t just the FEC job to oversee and enforce. My understanding is that they oversee and impose civil penalties. Senator Menqndez isn’t just subject to the FEC for a violation of failure to file paperwork on time. They want to be toothless-okay.

        • bmaz says:

          What makes you think DOJ is not aware? They have different standards than a civil commission theoretically tasked with this issue. Don’t equate them. Okay.

    • earlofhuntingdon says:

      If you don’t know how to do it, please don’t post a link. You can describe the source and date, which will allow a user to find it. Privacy is hard or impossible to recover. There are several Internet sites that show you how to do it.

  17. bloopie2 says:

    An NYMag article indicates that current Trump public statements, embracing the January 6 rioters, can be used as evidence against hm in the DC trial. As evidence of intent, or some such. Not just things that happened before that date. Is that legally correct?

  18. David F. Snyder says:

    Moukawsher has an interesting op-ed on CNN with some reflection on Cannon’s ruling and the use of motions as a delay tactic (the headline is misleading though).

    And Harry Litman had some interesting points about Cannon’s ruling on MSNBC Friday night:

    [Welcome back to emptywheel. FOURTH REQUEST: Please use the same username and email address each time you comment so that community members get to know you. This comment was published as “David Snyder” which is a different identity from “David F. Snyder,” your correct username. I am editing this once to match your correct username but future comments may not clear moderation if your username does not match. /~Rayne]

    • earlofhuntingdon says:

      Moukawsher’s comment are milquetoast, a plain vanilla analysis for CNN readers who haven’t been following the trials. Following this blog would make the reader considerably more well-informed.

      Moukawsher hopes, for example, that Trump’s current crop of trial judges won’t buy into his perennial strategy of delay. But only Cannon seems willing to go there, and, it seems, only if she can do so without being caught out.

  19. dopefish says:

    Lol.. Cannon’s written order laid out the revised schedule, and Team Trump realized it had two days of CIPA section 4 hearing scheduled for Feb 15-16. Which conflicts with a previously scheduled hearing in the New York hush-money criminal case, where Trump and his lawyers are required.

    So Team Trump was forced to ask Cannon to move the hearing, and SCO preferred it a few days earlier rather than a few days later, and given the recent attention to their strategy of delay and Cannon’s ruling not to delay the actual trial schedule (yet), I guess they didn’t dare ask to move it a few days later and risk burning any goodwill there.

    • bmaz says:

      I am aware there are greater experts in criminal law here on this blog, but, generally, a federal criminal prosecution takes precedent before a state civil case.

      • dopefish says:

        I’m no lawyer, I imagine Judge Cannon will reschedule it.. it seems like a minor thing, I just thought it was funny because we hardly ever see Trump’s side asking for an earlier date for a hearing, and in such an apologetic tone.

        Perhaps they feel like they are already a little on thin ice with Judge Cannon at the moment.

  20. harpie says:

    New book details Trump lawyers’ secret meeting with Jack Smith ahead of DC indictment ABC’s Jonathan Karl offers an account of a fateful July 27 meeting in his forthcoming book. [“Tired of Winning”] KYLE CHENEY 11/13/2023 05:00 AM EST

    In this article, POLITICO publishes a torn/repaired 12/18/20 MCENTEE to TRUMP note.

    P-R000239 [] (2021-076)
    Chris Miller spoke to both of them and anticipates no more statements coming out. (If another happens, he will fire them)
    [Redacted paragraph]

    As Trump’s presidency was winding down, he sent top aide Johnny McEntee to warn Pentagon leaders that Trump was irate because Army Chief of Staff James McConville and Army Secretary Ryan McCarthy had publicly insisted the military would play no role 1] in the transition of power or 2] determining the outcome of the 2020 election. But Trump, who had been huddling with advisers urging him to consider deploying the military to seize voting machines, [POWELL / FLYNN etal] was displeased, Karl reports. […]

    • harpie says:


      1] Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff McConville issue a statement that there was 1] no role for the U.S. military the transition of power or 2] determining the outcome of the 2020 election.

      But this made Trump, who had been huddling with advisers urging him to consider deploying the military to seize voting machines, [POWELL / FLYNN etal] irate

      2] Acting Sec Def MILLER says he was contacted by MCENTEE about the above McCarthy / McConville statement soon after it was made

      MILLER: “[MCENTEE] wanted me” [] “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He” [] “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

      Marcy: This [^^^] was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

      3] MCENTEE to TRUMP re: call with MILLER

      Chris Miller spoke to both of them and anticipates no more statements coming out. (If another happens, he will fire them) [Redacted paragraph]

      Marcy notes: [1/23/23] “[This torn up note] showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.”

      4] At his deposition, MCENTEE says he recognizes the handwriting on this note, above, as his own, but that he has “no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election”

      Read the rest of Marcy’s post again!

      This is important background to McCarthy’s indolent response to the attack on January 6. [..]
      Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

  21. harpie says:

    Politico published 4 documents in that article [pdf], their numbers are in order:

    This is probably our only realistic option because it would give Pence an out.
    – Johnny


    – The VP doesn’t need to declare Trump the winner, or to reject ALL the ballots of a disputed state…

    – There is a middle path that is a way out for everybody

    – On January 6th, the VP could only accept HALF the electoral votes from the disputed states, instead of all. The justification being this mirrors the popular vote of the state so no one is disenfranchised1

    [fn1] – Due to the Electoral College Act, certain procedural steps may be necessary to execute, but they are attainable

    – Pence then explains that given the serious evidence of fraud, Winner-Takes-All would not be appropriate for the remaining half

    – Accordingly, Pence announces he is not rejecting them, but giving state legislatures 10 days to confirm them

    – Each Governor would then be forced to convene their legislatures or forfeit half their electoral votes

    – During those 10 days, we would build public support

    – The state legislatures will have cover because even if they award half to Trump, or do nothing, no one hits 270 so it goes to the House2

    [fn2] The Disputed States are WI(10) MI(16) PA(20) GA(16) AZ(11) NV(6)

    – The House of Representatives has decided Presidential Elections before, there is precedent3

    [fn3] See the Presidential Elections of 1800, 1824, and 1876

    • harpie says:


      Washington is being inundated with people who don’t want to see an election victory stolen by emboldened radical left democrats. Our country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office!

      ^^^ This, less a MAGA, is verbatim a TRUMP Tweet
      1/5/21 5:05 PM TRUMP Tweets:

      Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!

      • harpie says:

        Repeating this here, in a better location:

        Since these numbers are in order, and we know the date/time of the Tweet 3], I wonder if these 2] “give PENCE an out” and 1] “PENCE can let the states decide” notes happened at or just before the 1/5/21 late afternoon Oval Office between TRUMP et al and PENCE.

    • harpie says:


      Chris Miller spoke to both of them and anticipates no more statements coming out. (If another happens, he will fire them)

      ALSO on 12/18/20:

      [From our original #J6TL]
      18-DEC-2020 — Biden team still not receiving DoD briefings with DoD personnel expressing multiple rationales for delays including Biden team not following regulations, impending government shutdown, pandemic protocols
      9:37 AM · Dec 18, 2020

      NEW: Acting Defense Secretary Chris Miller has ordered a Pentagon-wide halt to cooperation with the Biden transition, shocking officials across the Defense Department, senior administration officials tell Axios.

    • harpie says:

      Since these numbers are in order, and we know the date/time of the Tweet 3], I wonder if these “give PENCE an out” and “PENCE can let the states decide” notes happened at or just before the 1/5/21 late afternoon Oval Office between TRUMP et al and PENCE.

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