Jack Smith Is Not Amused

By Trump’s motions to dismiss the stolen document case.

63 replies
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  2. hollywood says:

    Without merit.
    Should be denied in entirety.
    Without a hearing.
    Your move Judge Cannon.

  3. Sussex Trafalgar says:

    Jack Smith had better add additional charges including Insurrection now before Judge Cannon dismisses the entire case.

    • Peterr says:

      Insurrection charges would not be added to anything before Judge Cannon. The case there is related to the illegal retention of documents. If any new charges related to insurrection would be added, they would be added in DC, the site of the insurrection.

      • Sussex Trafalgar says:

        I agree. And I believe there is evidence that indicates Trump’s retention of docs, which commenced in DC before docs were shipped and hauled to Florida, can be included in Insurrection charges.

        The time is now to get this Florida docs case out of Judge Cannon’s hands and back to DC where it belonged in the first place.

        I understand why Smith tried to avoid fighting with Trump over whether the original docs case should have been filed in DC or Florida. Smith made the right move to try it in Florida to save time and get it to trial, but that’s history now.

        Judge Cannon thwarted Smith’s intentions and is now prepared to dismiss most of these charges and reduce whatever is left to misdemeanors, if she doesn’t outright dismiss them all.

        • CaptainCondorcet says:

          At this point, a venue change is immaterial. Case is not getting tried before primary season ends, and it’s certainly not getting resolved before the general election. Frankly, I would rather see the 11th smack her down. Again.

      • Spencer Dawkins says:

        Peterr, thank you for being helpful and gentle.

        Just for the record, I was explaining what I read about Trump’s various appeals during the past week to my daughter last night, and was amazed at how hard it is to keep all of them straight re: civil vs. criminal, federal vs. state vs. local, what he’s charged with, what he thinks his basis for appeal is, and who he’s appealing to. Just the notion that a former president has multiple cases before the Supremes at one time is insane.

        Every few hours, I hear the classic, “programs! programs! can’t tell the players without a program!” in the back of my mind. It’s just that this time, the sport matters to all of us …

        • Harry Eagar says:

          And for some reason the civil suits from victims in the Jan 6 attack seem to have dropped from public consciousness.

          These claims will not be heard this year, but when totting up trump’s financial exposure, they might add up to a lot.

  4. Rugger_9 says:

    As usual, concise and complete and ready for appellate review if necessary. This is why the time in the Hague was not wasted on SC Smith, because he had a pretty good idea what would be tried. I also like the way he responds well before deadlines since that minimizes the delays.

  5. earlofhuntingdon says:

    Judge Cannon took the unusual step of allowing submission of two defense-oriented amicus briefs, during the pretrial motions phase of the trial. (She is allowing both sides to respond to her decision.)

    She used language previously used by the Supreme Court, which characterizes the submissions as providing essential new information not previously given to her by either side. That means she’s already done her homework, and probably intends to use their arguments.

    One brief is purportedly by former longtime Ronald Reagan aide and Attorney General, Ed Meese. Given that Meese is 92 and has a reputation for slow-walking work (“his briefcase was where briefs went to die”), he’s not likely to be its real author. The other is sponsored by noted non-lawyer and mini-Goebbels, Stephen Miller.


    • earlofhuntingdon says:

      I agree, Miller’s name is there to promote someone else’s work. That’s why I wrote “sponsored,” not written.

      • P-villain says:

        Grimly hilarious that the gravamen of Miller’s brief is that NARA’s criminal referral to the DOJ was made in violation of the Administrative Procedures Act.

        • taluslope says:

          Grim and Stephen Miller?

          Grim sequitur Stephen Miller might be better.

          (Don’t listen to me I’m just talking to myself.)

        • Spencer Dawkins says:

          I do that here too, sometimes, although I’m trying to cut down. But I couldn’t agree with you more.

    • SteveBev says:

      This Ed Meese brief has been filed at every conceivable opportunity and no other court has given it the time of day.

      It should also be noted that Abbé Lowell has filed a version of this argument in the Hunter Biden case in an attempt to disqualify Weiss.

    • David F. Snyder says:

      I’m sure Smith will reveal the vacuity of the arguments posited in these briefs. Cannon wants to entertain them, but unless she wants a hard slap from the 11th, she’ll move on. These kids. smh

      • earlofhuntingdon says:

        Whatever the calculus behind Cannon’s moves, it doesn’t seem to include avoiding being shot down again by the 11th Circuit. It does seem to include being coy enough to make it hard for Smith to reverse or remove her and pursue his case against Trump, which is a different priority entirely.

  6. earlofhuntingdon says:

    Judge Kaplan isn’t amused either. In the second E. Jean Carroll case, where Trump owes Carroll $83.3 million, Kaplan denied Trump’s “emergency” request for an administrative stay, pending Kaplan’s decision on an earlier Trump motion, requesting that he not be obligated to post bond, or, that he be allowed to post a fraction of the normal bond. Monday is the deadline to post bond.

    Kaplan dealt with it summarily. Having to prepare to post bond is a routine, foreseeable litigation expense; it is not an irreparable injury. Any delays in doing so are Trump’s fault. Trump has not provided the court any facts, let alone sufficient facts and argument that would justify an administrative stay. A famous Momas & the Poppas song comes to mind.

    https://storage.courtlistener.com/recap/gov.uscourts.nysd.543790/gov.uscourts.nysd.543790.315.0.pdf (h/t Kyle Cheney; see page 2, which is attached to the first page of a letter from Habba.)

    • earlofhuntingdon says:

      Trump is adding the wealthy, overly ambitious, Christianist Republican candidate for Missouri AG to the legal team that’s appealing his $83.3 million loss to Carroll.

      William Scharf is an avatar of a real deep state courtier: 36-year-old with a private equity dad, Phillips Andover, Princeton, Harvard Law, president of HLS FedSoc, a string of minor political aide appointments, a couple of years in private practice, the same as an AUSA. He’s a jumping frog. Scharf appears never to have first-chaired a trial or done much appellate work. Whatever Trump hired him for, it’s not his lawyering.


      • OneFineMonster says:

        Care to speculate why he hired him? I mean, I could make some guesses but I’d like to your ideas. Our potential consensus will lessen my sense of spiraling into a psychotic break.

        • earlofhuntingdon says:

          Trump’s trials and legal troubles are his political campaign – and his best fundraising tool. I suspect he wants an ambitious performer, someone who relishes overacting for effect.

          Scharf might do it for his own political ends, rather than to provide effective legal counsel, but Trump must hope to be the principal beneficiary of it. Scharf is apparently wealthy and running for Missouri AG, so he might do it for free, too.

      • Benji-am-Groot says:

        I have confusion. How can the Orange Florida Man appeal the EJC without the bond being posted as surety? Perhaps I am missing something here.

        Which leads to another question: in the event he fails to post surety by Monday I speculate EJC’s legal team will pounce and file for collection – if a miracle fire sale does happen are those funds liable for Capital Gains Tax? And if so how would that impact Carroll’s award, if at all?

        • HikaakiH says:

          I’m not a lawyer, but have heard several say that in Trump’s EJC case, he has filed notice of appeal, so an appeal is expected to be forthcoming and what filing the bond does is stay enforcement of the original verdict while the appeal is afoot. Without the bond, EJC’s legal team can enforce the original verdict against Trump (get asset seizures – bank accounts, properties – to satisfy the amount) even while the appeal goes ahead. If Trump won his appeal, EJC would be required to reimburse Trump.
          Again, not a lawyer, but I believe similar holds for the NY civil fraud judgement, too. Without lodging the bond, enforcement can proceed regardless of the status of appeals. If Trump eventually wins on appeal (which seems unlikely) then he gets reimbursed, but by then he might well be financially crushed.
          As to taxes on sale of seized assets, I would expect provision for taxes is required to be made from the proceeds and should remain a cost to Trump with EJC getting the full judgement amount, with the remainder of proceeds returned to Trump along with any bill for tax obligations.
          [Happy to be corrected by anyone who has actual knowledge of how this rolls.]

        • Spencer Dawkins says:

          I told my daughter last night that if I were E. Jean Carroll, I’ll tell the court that I’d accept his 30,000 square foot (WHOOPS! that’s 10,000 square foot) apartment in Trump Tower(*) in lieu of cash while Trump appeals. The idea of her evicting him pleases me far more than it should, and because she hasn’t done so, that proves that Carroll is a better woman than I am. /s

          (*) conveniently, the guesstimated value of the apartment at 10,000 square feet seems to be about $50 million, so she’d still be doing him a favor by not insisting on immediate payment in full. /s /s

        • earlofhuntingdon says:

          Regarding Trump’s loss to Letitia James in NY state court, he CAN’T appeal without posting bond.

          An appeals bond is for about 120% of the judgment, which now includes a whopping amount of interest, so the bond he needs would be about $550 million.

          Regardless of how the money is extracted from Trump – assuming he avoids bankruptcy – James and Carroll would be entitled to the full amount of any award that survives appeal. Interest pending payment in full, fees, costs of collection, etc., are on Trump.

          The income tax cost of any sale of Trump real estate, for example, wouldn’t be known at closing. It would be a function of the presumably legal entity owner’s profit and loss for the year of sale. So, I would think that estimated income tax costs would not be paid at closing.

          Good thing Judge Engoron appointed an independent monitor and, now, an independent financial and accounting compliance director for the Trump legal entities. Trump is not used to paying taxes or debts in full or on time.

        • Rayne says:

          We should probably reframe that from a loss to James which is highly personal, to a loss in NY state on fraud charges without reference to the prosecutor. Trump’s been allowed too often to frame this as a rich white man persecuted by a Black woman when the truth is that he committed repeated fraud against the state of New York and he failed to prove he didn’t.

        • CPtight617 says:

          I believe he can appeal without posting a bond (due process rights), but he cannot stop AG James from trying to put a lien on any of his assets (presumably, she’d go after the NY state properties first) without posting bond.

        • earlofhuntingdon says:

          Mea culpa. That’s correct. An appeal can be taken in NY, but filing the appeal alone does not stay enforcement. That requires also posting an acceptable bond or “undertaking” in the correct amount.

          In federal court, there’s a 30-day automatic stay, after which an appellant needs to obtain an appeals bond – and have it approved by the court – to continue the stay. Obtaining the bond without also obtaining the court’s approval of it will not stay enforcement.

        • theartistvvv says:

          As a guy who just last week paid another atty to successfully lift a stay on an intentional tort case so I can try it (slander *and* libel, kinda like county *and* western) I think mebbe this one would not be dischargeable?

        • xyxyxyxy says:

          Isn’t the bond or cash deposit better than a default because with a default they’d have to go searching for it and lots of things can tie everything up.
          With cash or bond, if he loses it’s there on a platter.

        • earlofhuntingdon says:

          Yes, that’s why legislatures and the courts require appeals bonds. To dissuade litigants from appealing in order to delay, and to make successful litigants whole, pending the often two years it takes to resolve appeals.

          The emphasis on default is misplaced, as is an emphasis on Trump’s assets – but only so long as he puts up a credible appeals bond.

        • xyxyxyxy says:

          How does appeals court decide when to take this case to review?
          Is it in date order of appeal by losers?

        • earlofhuntingdon says:

          Unless it agrees to hear a case on an expedited basis, the case gets in line based on the date the appeal is “perfected.” That happens when the appellant has served the appropriate notices and filed the correct forms, and sent to the appellate court the trial transcript (or summary of the relevant parts, when narrow issues are appealed).

          The appellant has months to do that. Once started, it can take weeks to months to perfect. If an appellant fails to perfect within the allotted time, the appeal is dismissed.

          The appeals process is related to, but distinct from the steps needed to post bond in order to stay enforcement of the lower court judgment being appealed.

        • xyxyxyxy says:

          So in the Carroll case, is it to Trump’s benefit to take as long as possible or as quick as possible?
          How about the NYAG fraud case?

      • Benji-am-Groot says:

        Earl of – apologies, I posted this before I perused the MSNBC piece and your response to ColdFusion:

        March 7, 2024 at 10:25 pm

        “Trump was denied an emergency request for a stay, which would have allowed him not to post bond until Kaplan decided another pending Trump motion. The denial did not relate to paying the judgment.

        The deadline for Trump to post bond is Monday. Trump can appeal without posting bond, but without a stay, Carroll can attempt to collect her judgment while he does so.”

        Thank you.

      • pluralist says:

        Thanks for “Christianist”. Hadn’t seen that before. Most apt.

        Ever see Lanford Wilson’s Book of Days? I keep remembering it when I hear about Missouri politics (and religion and the lack of distance between them)

    • Fly by Night says:

      CNN is announcing that Trump posted a $91.6 million bond in the EJC case. He apparently gathered up the money this past Tuesday so he has been sitting on it most of this week.

    • Novembirdie says:

      Trump has given notice that he has arranged for a bond in E. Jean Carroll 2. He hasn’t actually posted the bond yet AFAIK.

  7. OldTulsaDude says:

    The most difficult part for Smith in his responses must surely be writing “Respectfully submitted.”

    • Ithaqua0 says:

      Maybe he has it hotkeyed – ctrl-F ctrl-U automatically enters “Respectfully submitted” where the cursor is.

      • Benji-am-Groot says:

        I have confusion. How can the Orange Florida Man appeal the EJC without the bond being posted as surety? Perhaps I am missing something here.

        Which leads to another question: in the event he fails to post surety by Monday I speculate EJC’s legal team will pounce and file for collection – if a miracle fire sale does happen are those funds liable for Capital Gains Tax? And if so how would that impact Carroll’s award, if at all?

        • earlofhuntingdon says:

          Your second paragraph answers the question in your first.

          Trump could appeal the judgment in the Carroll case. But without a bond, enforcement is not stayed. Any litigant who can, would post bond rather than risk enforcement pending an appeal. Any billionaire would do the same.

          That’s moot, now that Trump has posted bond (assuming Kaplan accepts it). The monitor appointed by Judge Engoron will presumably discuss it in her next report.

          Given that Trump’s real estate holdings are intertwined financially, and his largest loans require his personal guarantee, he can’t afford to let a creditor foreclose on any one of them without triggering defaults on all of them.

      • Benji-am-Groot says:

        Most excellent – thank you. It brought up a vision of Bert and Ernie doing a double face-plant with the caption:

        ‘Brought to you by the letters “W”, “T” and “F” ‘

        A mind is a terrible thing…

    • Ginevra diBenci says:

      Funny, I thought it was coming up with new ways to say “This is wrong.”

      “…wrong…wrong…wrong…wrong…incorrect…impermissible…” and “wrong.”

      Even through the perfect syntax, the expertly parallel clauses, someone’s last nerve came through.

  8. Mister_Sterling says:

    “The record here clearly demonstrates that Trump has raised his immunity claim solely for the purpose
    of delay, and the Court should reject his effort to divest this Court of jurisdiction in a manner that
    risks delaying the trial.”

    Smith has been really careful not to say it. But tonight, he said it. Delays deny us justice. Smith has laid out a clear case against a former president and it might not ever move forward. It’s depressing, chilling and infuriating.

  9. myra-bo-byra says:

    IANAL, but I’m assuming that if Cannon actually tries to dismiss the case, Smith can take that up to the 11th circuit, and presumably get her reversed. Would that also provide Smith with a good opportunity (given the earlier slapdowns of Cannon by the 11th) to finally request that she be recused?

  10. gruntfuttock says:

    Catching up with Smith’s filings. (It’s how I like to spend my Saturday nights, lol.)

    He does seem to this non-lawyer to be making rather a point (maybe even belabouring things) of citing 11th circuit precedents. Reminding Cannon of her place in the scheme of things?

    And this reminded me of Engeron. Here’s somebody who’s getting a mite fed up of the other team taking the piss:

    ‘Confronted with clear Eleventh Circuit precedent and the thorough and detailed allegations
    in the Superseding Indictment, De Oliveira attempts a sleight of hand, suggesting to the Court that
    the charges are somehow insufficient simply because De Oliveira is not alleged to have been
    responsible for all aspects of the manner and means of the charged conspiracy, see ECF No. 323
    at 7-8, and hypothesizes factual possibilities regarding what that the grand jury did not charge, see id.
    But it is black-letter law that a conspirator need not participate in all aspects of a conspiracy,
    see United States v. Browne, 505 F.3d 1229, 1274 (11th Cir. 2007), and his complaints about what
    the Superseding Indictment does not allege are irrelevant in the face of what it does allege, in plain
    English and painstaking detail.’

    • earlofhuntingdon says:

      Smith is not reminding Cannon of her place in the scheme of things. He’s using the only case law that binds her: Supreme Court and 11th Circuit precedent.

  11. Amicus12 says:

    So, I read the America First amicus brief that Judge Cannon allowed to be submitted in the documents case in support of Trump’s motion to dismiss based on the Presidential Records Act. (The Meese amicus brief appears to be a rehash of what has been filed in the D.C. case).

    America First argues that NARA exceeded its statutory authority by making a criminal referral to DOJ in violation of the Administrative Procedures Act and the referral was thus ultra vires. Indeed, this argument raises a full-blown Major Questions Doctrine challenge to NARA’s referral.

    Being no stranger to judicial review of agency action, I thought a bit of research and commentary was in order.

    First, it’s not the place of amici to raise APA arguments not raised by the petitioner (or here defendant). Under the “party presentation rule,” federal courts are discouraged from considering legal arguments and issues not raised by the parties. Greenlaw v. United States, 554 U.S. 237, 243 (2008). See also United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020) (vacating decision for violating party presentation rule).

    Second, as regards the merits, America First seemingly ignores the fact (it’s in a USG affidavit) that it was a special agent of the NARA Office of Inspector General that made the referral to DOJ on February 9, 2022. And under the Inspector General Act, “[i]n carrying out the duties and responsibilities established under this Act, each Inspector General shall report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.” 5a U.S. Code § 4(b)(d).

    Unless I’m missing, America First’s APA argument is completely frivolous.

    • earlofhuntingdon says:

      And yet Judge Cannon imagines that these two briefs informed her of vastly important points that neither side presented to her, and which could help her decide this case. How odd.

    • 2Cats2Furious says:

      I appreciate your insight, as always.

      Chutkan didn’t allow the filing of amicus briefs in the DC case. I find it troubling that Cannon not only allowed the filing of such briefs, but specifically stated that she’d read them and considered them to be “helpful” in resolving the pending Motions to Dismiss. How, exactly?

      The Meese brief is indeed a re-hash of the same argument challenging the appointment of Jack Smith as Special Counsel – on the grounds he was not confirmed by the Senate – that he filed with the DC COA and now SCOTUS in the DC election interference case. IIRC, this argument was summarily dismissed by the DC COA at oral arguments, with even Trump’s attorney calling it an “interesting” argument, but not one they were raising at that point. Perhaps they think Cannon will be more receptive, and didn’t want a contrary decision in DC? Or, just as likely, Trump’s attorneys hadn’t considered it until Meese brought it up.

      As for the America First brief, I agree that it’s frivolous. It’s basically an argument that NARA shouldn’t have told DOJ that Trump had a bunch of classified documents in his possession for a year, before he finally returned a batch of 15 boxes of Presidential Records to NARA in January 2022. AFAIK, there is nothing in the PRA that prevents NARA from raising concerns that Trump might still be in possession of additional classified documents – which turned out to be the case.

      It’s also worth noting that America First is being run by noted bigot and Trump lackey Stephen Miller, so of course their arguments are disingenuous.

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