Judge Mark Scarsi’s Quantum Theory of Murdered Contract Law
As expected, Judge Mark Scarsi has denied Hunter Biden’s motions to dismiss.
This post will explain his interpretation of the diversion agreement and his invitation for additional briefing on what even he calls a “Schrödinger’s cat-esque construction of Defendant’s immunity under the Diversion Agreement.”
A follow-up post will show how three errors Scarsi made undermine his otherwise totally defensible decisions on selective and vindictive prosecution and outrageous conduct, in one case in a way that bears on the diversion agreement. Scarsi fails to come close to meeting his own rigorous evidentiary standard on two points, and on a third, Scarsi fails to adopt the legal standard he claims to rely on.
As you read these posts, keep three things in mind.
First, Scarsi issued this order 16 days before he said he would, which would have been April 17 (as noted, he has invited further briefing on a central point that he has nevertheless already ruled on).
Before he docketed yesterday’s order — an order that pointedly refused further briefing — Abbe Lowell filed a motion that addressed two issues Scarsi raised in last week’s hearing which are pertinent to Scarsi’s ruling. Scarsi hasn’t and probably won’t accept Lowell’s bid to file that motion, but it nevertheless was directly on point and, in my opinion, corrected claims that Scarsi reportedly made in last week’s hearing (one of which recurs in this opinion). And it was filed before Scarsi formalized his order rejecting Hunter’s motions.
Even before Judge Scarsi filed yesterday’s order 16 days before he said he would, he was (and remains) on a relentless pace to get this to trial quickly. Meanwhile, Judge Maryellen Noreika appears to be frozen in uncertainty about what to do about motions filed by Hunter. Versions of three of these motions to dismiss have been fully briefed in Delaware since January 30. During that period, Lowell submitted a request in Los Angeles asking Scarsi to hold off until Noreika ruled, because the diversion motion would properly be decided by Noreika, a request Scarsi denied. Then, on February 12, Lowell informed Noreika that Scarsi was not waiting on her decisions on MTDs filed first in her district, what I took to be a soft nudge asking her to rule quickly so she would rule first. In a March 13 status hearing, Lowell made the nudge much more directly, asking her to rule on the diversion agreement first, and do so quickly, noting that it was proper for her to rule given that Delaware contract law probably applied. These issues are relevant, among other reasons, because I think they make Scarsi’s order more vulnerable on appeal, an appeal that Hunter Biden probably would not, however, be able to make until after he were convicted.
More troubling, I have been wondering whether Noreika’s seeming paralysis was an attempt to wait out Scarsi to see what he did with these rulings. So Scarsi’s approach may end up influencing her even though several facts are differently situated before her, including one Scarsi relied on heavily.
Finally, in one place, Scarsi adopted the colloquial, rather than the formal logic meaning, of “begs the question.”
This observation begs a question regarding another provision, the parties’ agreement that the United States District Court for the District of Delaware would play an adjudicative role in any alleged material breach of the agreement by Defendant. (my emphasis)
I’m normally pretty tolerant of this usage; I occasionally fail to avoid it myself. But given that I think Scarsi has adopted an incorrect meaning of the Schrödinger’s cat paradox in an order that adopted a crazy theory to deny Hunter’s immunity claim, I find it notable that he also used a term that, in formal logic, describes someone adopting premises that assume a conclusion to be true, to mean something else. Scarsi’s misuse of these two terms are badges of someone getting logic wrong.
Now to Scarsi’s interpretation that led him to analogize that Hunter Biden’s immunity from the prosecution Scarsi is rushing headlong towards trial is both dead and not-dead. In short, Scarsi ruled that the parties to the contract granting Hunter Biden immunity from this prosecution executed the agreement, but did not yet put it into effect (or performance). As he describes, “the Diversion Agreement is a binding contract but performance of its terms is not yet required.”
To get there, Scarsi first lays out that the legal standards to apply here are uncertain, both as to whether Delaware, US, or California contract law governs, and as to the standard to apply to diversion agreements.
Having rejected Lowell’s request to let Noreika rule first, he applies the Ninth Circuit standard for plea agreements, and only in the next paragraph lays out what should come first: an acknowledgment that the Ninth hasn’t yet applied the standards used for plea agreements to diversion agreements, but other circuits have and so he will here.
The parties have not identified, and the Court has not uncovered, binding circuit authority extending these interpretation principles to pretrial diversion agreements. But several other circuit courts have found diversion agreements analogous to plea agreements and construed them according to similar contract principles. E.g., United States v. Harris, 376 F.3d 1282, 1287 (11th Cir. 2004) (“[T]his court interprets a pretrial diversion agreement applying the same standards we would use to interpret a plea agreement.”); Aschan v. Auger, 861 F.2d 520, 522 (8th Cir. 1988) (applying contract principles, reasoning that “[t]he pre-trial diversion agreement is analogous to a plea agreement”); cf. Garcia, 519 F.2d at 1345 & n.2 (similarly analogizing a deferred prosecution agreement to a plea bargaining agreement). The Court perceives no meaningful distinction between plea and diversion agreements relevant to the application of these interpretation principles.
These contract law standards may actually matter; they may matter a lot, not least because Scarsi misrepresents the uncontested record about the plea deal that failed (which I’ll get to in my follow-up).
In any case, however, Scarsi claims to be adopting a standard that holds the government responsible for any imprecisions in a plea agreement.
Given concerns about the defendant’s constitutional rights at play, “the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government,” courts “hold[] the Government to a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in plea agreements” than they would a drafting party to a commercial contract. Clark, 218 F.3d at 1095 (internal quotation marks omitted). “As a defendant’s liberty is at stake, the government is ordinarily held to the literal terms of the plea agreement it made, so that the government gets what it bargains for but nothing more.”
Having adopted that standard but then having claimed that the diversion agreement is unambiguous, Scarsi then comes up with an interpretation that neither the government nor Hunter Biden have adopted, telling the parties to a contract that he knows better than them what they entered into.
[T]he Court does not reach Defendant’s argument that the Government should be estopped from denying the validity of the agreement or the Probation Officer’s approval. (Immunity Mot. 18–19.) The Diversion Agreement is unambiguous, and the Government’s position on its interpretation cannot change its meaning.
We now have three different interpretations of a diversion agreement that everyone claims is unambiguous. Schrödinger’s cat had just two states of being: dead and not-dead. Scarsi has given this diversion agreement three.
Scarsi’s version says the words “approval” and “execute” are doing different things in the diversion agreement, and while the agreement was executed by the only parties to it, because someone not a party to it did not approve it, the government is not yet required to fulfill the contract.
Approval and approved together appear in three places in the agreement: the provision defining the agreement’s term, (Diversion Agreement § II(1)); the provision defining the diversion period, (id. § II(2)); and the signature block designated for the Probation Officer, (id. at 9). Outside of definition provisions, the only place the agreement uses the approve word stem is in the signature block inviting a formal sanction by the Probation Officer. And obtaining the approval of the Probation Officer makes sense in the context of the agreement, as the parties contemplated as a term of Defendant’s performance his subjection to her supervision. (Id. § II(10)(a).) In other words, the supervision provision would be nugatory if the Probation Officer refused to supervise Defendant.6 The definition provisions require an approval, and the only place in the agreement to which the Court can look to divine the meaning of approval is the signature block for the Probation Officer, compelling an interpretation that ties approval to an act by the Probation Officer.
In contrast, the term execution appears twice in the Diversion Agreement: in the provision defining the diversion period, (id. § II(2)), and in a provision authorizing execution of the agreement in counterparts, (id. § II(18)). Consistent with the definition of execute, the counterparts provision circumscribes the acts of signing the agreement that might validate it; in other words, the parties agreed that signing the same copy of the agreement would have the same effect as signing different copies. Notably, the provision defining the diversion period uses both execution and approval together, indicating each has its own meaning: “The twenty-four (24) month period following the execution and approval of this Agreement shall be known as the ‘Diversion Period.’” (Id. § II(2) (emphases added).) As Defendant’s counsel admitted at the hearing, Defendant’s proffered interpretation would render the phrase “execution and approval” redundant in part. The contrast between sections II(1) and II(2) supports an interpretation that gives each word its own meaning; while “approval” triggers the agreement’s term, the diversion period begins only “following the execution and approval” of the agreement.
Having ruled that the government is wrong that Probation’s approval was precedent to approval to the contract, Scarsi then argued that her approval was precedent to performance, something that had to happen before the agreement went into effect. Prosecutors are wrong that the contract isn’t binding, Scarsi argues, but because probation didn’t also sign the diversion agreement, prosecutors are not yet required to grant Hunter the immunity the agreement grants him.
For this interpretation to end up with Hunter being fucked, Scarsi also has to reject Hunter’s argument that probation already did agree to supervise the diversion agreement before, unbeknownst to Hunter and Judge Noreika, after he and Leo Wise signed the diversion agreement, Delaware head of probation Margaret Bray refused to sign the diversion agreement itself.
The agreement is not reasonably susceptible to an interpretation that the Probation Officer could manifest her approval by issuing a pretrial diversion recommendation consistent with the Diversion Agreement, let alone by any means other than signature on the line reserved for her.9
9 Defendant’s argument would fail on its merits even if the Probation Officer could have manifested her approval by issuing a pretrial diversion report. Defendant submits that the Probation Officer provided a “letter to counsel . . . enclosing her recommendation in favor of the Diversion Agreement and copy of the Agreement.” (Immunity Mot. 18.) The report filed with this Court does not reference or attach a copy of the agreement at all. (See generally Machala Decl. Ex. 5.) That said, the report filed with the motion is incomplete and apparently redacted. Although some of the recommended conditions of pretrial diversion align with the conditions discussed in the Diversion Agreement, they do not mirror each other perfectly. (See, e.g., Machala Decl. Ex. 5 § 38(5) (requiring as a condition of pretrial diversion Defendant’s consent to entry into a criminal background check system, a condition not discussed in the Diversion Agreement).) Further, another document in the motion record indicates that the parties modified the Diversion Agreement after the Probation Officer issued her report in an effort to “more closely match” the report. (Clark Decl. Ex. T (providing July 20, 2023 revisions to Diversion Agreement); cf. Machala Decl. Ex. 5 (dated July 19, 2023).) The Court resists Defendant’s ouroboric theory that the Probation Officer manifested approval of an agreement the parties changed in response to the purported approval. Further, the Court doubts the Probation Officer manifested approval of the revised version of the Diversion Agreement passively by being party to an email circulating the updated draft. (See Clark Decl. Ex. T.) [my emphasis]
In doing so, Scarsi misrepresents the exhibit he relies on.
The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday. Attached, please find clean and redline versions of the diversion agreement.
The parties didn’t modify the diversion agreement after probation issued its report; the parties and probation did. And that agreement didn’t happen on that email thread. Scarsi simply invents probation’s passive participation in an email.
That is, to dismiss Hunter’s argument that probation gave approval for the agreement, Scarsi misstates the evidence before him. That’s pretty telling, because if probation did approve the deal (and Hunter had no indication until the same AUSA who wrote an email saying probation had approved it that Bray refused to sign it after Hunter and Wise had), then the immunity deal is in place. Scarsi doesn’t address something he did in the hearing, which is that it made sense for tax crimes to be immunized given the expectation that Hunter would soon plead guilty to misdemeanors (which is one of the two things Lowell addressed in his filing and which was obviously wrong when Scarsi said it), so he seems to cede that if the agreement did go into effect, he can’t be charged with tax felonies.
More importantly, there are several aspects of Scarsi’s interpretation he doesn’t address, having nevertheless denied the motion while inviting further briefing and misusing the term, “begs the question.”
Having severed the execution of the contract from its performance, Scarsi doesn’t consider what those two terms apply to, even though prosecutors can only perform one part of the agreement — the immunity — and probation can only perform another — the diversion supervision. Margaret Bray cannot perform the part that matters here, conferring immunity, but Scarsi has given her veto power over the government fulfilling a contract they entered.
It would seem that if Scarsi were applying the standard he claims to be using — “the government is ordinarily held to the literal terms of the plea agreement [in this case, diversion agreement] it made” — then those who executed the diversion agreement, the prosecutors, should be required to recognize the immunity they agreed to and which they are uniquely situated to deliver.
More importantly, the main reason why probation never revisited approving the diversion agreement is because prosecutors failed to go get her signature. They failed to do so because Hunter did not agree to the terms of the separate plea agreement after Leo Wise changed the terms of the immunity it offered in the hearing itself. As we’ll see, that’s a part of the factual record that Scarsi simply disappears, ignoring it even though prosecutors waived contest to it.
Mark Scarsi rushed to interpret this contract in a way neither party to it agrees with, but did so in such a way that frees prosecutors from the obligation Scarsi himself says they agreed to give. He did so while misusing the term “begs the question” and invoking a metaphor, Schrödinger’s cat, designed to describe an absurd state, while calling Hunter’s correct description of events he misrepresented an ouroboric theory.
Mark Scarsi may be right that the diversion agreement uses two terms to depict two different things, but in doing so, he has upended the authority over prosecutions and arguably misapplied the standard he claims to adhere to.
Is there any interlocutory appeal for Hunter? After all, the gov’t contractually granted him immunity from prosecution—how is it fair to prosecute and convict him before allowing him to appeal this incorrect ruling about his immunity?
I mean, TFG got interlocutory appeal up to the Supreme Court using immunity arguments that frankly, seem weaker than Hunter’s…
Lowell didn’t think there was in DE, and the standard is higher in the 9th.
We shall see how Lowell deals with this.
Thanks.
No, interlocutory appeal is never, that I have ever heard of, done on this type of situation. But, yes, diversion agreements do get entered and accepted by the court in order to be binding, same as plea agreements. At least that is may experience in the 9th Circuit, irrespective of Scarsi’s curious treatment.
It appears Norieka, while entering on the record, did not accept it with finality. Not sure what Scarsi is doing, this should be being dealt with by Norieka in Delaware, not by Scarsi in CACD. Lowell is covering his, and his client’s, ass by also raising in in CA. Plea and diversion agreements are contracts, but normal contract law is usually not really germane.
Also, it is cute how Weiss got both Delaware and California to very Trumpy judges, both of which had backgrounds in big law business litigation, not a lick in criminal trial law. Funny how that works.
“ Plea and diversion agreements are contracts, but normal contract law is usually not really germane.”
Of course formation issues are germane to such agreements and contracts, including the notion of precedence to performance.
Lol, no.
I agree totally that Delaware contract law is Noreiga’s to interpret, and given risk to improper Choice-of-Law selection and application, it’s likely unwise for Scarci to venture into this so quickly. Does the impending Presidential election inform his need for speed or is this pace his baseline?
On question of grounds for interlocutory appeal, failure to properly ID (or apply) immunity is, by definition, a right that no longer can be vindicated once trial commences, which is the foundational premise of the collaterol order doctrine. While not my Circuit, from personal experience I know 9th Circuit has a vast body of law established in this area on the Civil side (in 42 U.S.C. § 1983 cases, specifically) and if not as developed on the Criminal side, liberty interests weigh in favor of persuasive precedent being seen as highly persuasive. (The precedent may exist in 9th Circuit Crim, but I think that’s Bmaz’s Circuit, so I’m a bit puzzled here and don’t have a few hours to jump on Lexis Advance to check).
My point: damn straight this is appealable before trial, in my view. Am I missing something, Bmaz?
I’m a slow typist/ poster, and I’m also commenting before reading Sarci’s order (usually quite unwise), so I’ll continue to read down to see if another comment or something in the order appears to refute me here, but immunity from prosecution is as fundamental as proper jurisdiction/venue.
Trials cannot charge ahead unless the court has the mandate to actually try a case.
What you are missing is that this is not a civil contract case, it is criminal. And that is different, contra to may of the people talking here.
Bmaz-
You jumped in between my question and my clarification, so I hope you may indulge me…
In my home Circuit, the Collaterol Order Doctrine permits interlocutory appeals in Crim cases where a court has no mandate to try a criminal defendant — or the mandate is being disputed (i.e., absense of Jurisdiction or presence of ‘Immunity’ — the former is most frequently a state v. federal squabble; the latter we see, e.g., in the DC Circuit with Trump’s absolute immunity claim).
Yes, immunity is most often, in 11th CoA Crim cases, a 5A-granted right, but both statutory and contract-based grants of immunity to criminal Ds (e.g., use immunity-for-truthful-testimony, plea bargains, and diversion agreements) must also be honored and if not, interlocutory appeal is permitted. A right granted to a criminal D, and a covenant the Government is bound to perform, through action or required forebearance, whether by statute, constitution or contract are still rights and covenants, regardless. And because ‘immunity’ means ‘prevention from actually standing trial’, disputes about the existence of prior immunity grants (e.g. was there a contract, OR is one part of a contract severable, but other parts still binding, etc) , must be settled with finality before trial.
How does the 9th Circuit see this differenty from the 11th?
Oh, and in case it’s not clear “immunity from prosecution” in my post just above is not something Lowell is seeking through his filings, per say, it instead refers to the fundamental right to be immune from suit, because of an already-existing PRIOR immunity, established by contract, by law or by the Constitution.
The prior contract immunizes here, so it must be properly settled, under Delaware law and precedent, whether this part of the contract survived*, regardless of all the other noise.
The best analogy I can think of here, is to imagine that a D has already been criminally tried on ___ counts/charges, by a sworn jury that reached a verdict. The Constitution clearly prohibits a second criminal trial on the same charges, regardless of trial outcome (outlawed by 5th A Double Jeopardy Clause).
A judge can’t simply decide on his own that the prior trial’s criminal counts/charges were sufficiently dissimilar, so it’s okay to forge ahead with (a second) trial. If the judge errs in applying or interpreting Blockburger precedent to D’s current case, failing to properly recognize that D is immune from (this second) prosecution, THIS MUST BE SORTED OUT AT THE APPELLATE LEVEL BEFORE TRIAL IS ALLOWED TO COMMENCE .
Not a perfect analogy, but one that hopefully explains what I mean by “immunity from prosecution” here.
——-
* The relevant provision that offered immunity here was the swap for the actual plea: the part that said “we are dropping any felonies and agreeing to only charge /accept a plea for misdemeanor tax violations,” not the provision that promised no future FARA prosecutions by a future GOP president (the provision Noreiga said had exposed an insufficient “meeting of the minds” between the parties).
Scarsi’s practice, though substantial, was narrow: intellectual property. While important to have on the federal bench, it’s a lousy background for a criminal trial that also involves interpretation of contract law.
He’s out of his depth, you say.
Dr. Wheeler, this is a masterclass in dissection of Judge Scarsi’s order, eviscerating his reasoning at a level that you simply don’t see in any mainstream journalism.
I don’t know federal criminal procedure well enough to know if an interlocutory appeal is warranted or even possible, let alone its likelihood of success. Would Lowell or his client tactically do it with the Delaware case pending? Does Scarsi’s seemingly wrongheaded denial bind Judge Noreika to likewise rule, if she was waiting for Scarci to rule first, and so the shows must go on in both venues?
As has been your theme in covering these cases, this entire saga is farcical. At least we’ll get resolution at the trial level in relatively short order.
Thank you for your work.
Marcy,
Spring is early for ripe fruit tree picking unless there are unusually low hanging fruit. ” Scarsi’s misuse of these two terms are badges of someone getting logic wrong. “But several other circuit courts have found diversion agreements analogous to plea agreements and construed them according to similar contract principles.” Proud badge wearing jurist out on a limb. Will the bough break before the Ouroboros finishes?
ew: “Scarsi’s misuse of these two terms are badges of someone getting logic wrong.”
I wonder what former Logic professor Joe Biden would say about Scarsi’s argument.
eh, logic is pretty much dead. These days, otherwise intelligent people throw around the term “Slippery Slope” as if it’s a real thing instead of one of the classic logical fallacies.
An exaggerated conclusion. It may be dead colloquially, but so is cursive handwriting and reading a clock that has hands that go round and round. That doesn’t mean logic is dead, for example, in law, medicine or computer science.
/s.
Lol, “slippery slope” is real in law. For instance, way back even in law school, I started learning and arguing “slippery slope” as to the erosion of 4th Amendment and Miranda rights. It was a correct argument then, and time has only proved it out. Roe is yet another example to which it has been properly applied, and is now being proved out in spades.
So, yes, slippery slope is very much a real thing.
Ironic, but not particularly surprising, considering US case law also categorizes a corporation as a person.
“Slippery slope” arguments are logically fallacious primarily when the claim in the argument is made that the feared outcome of a relatively small, first action is a certainty rather than (as it is in reality) a possibility.
Whew! What writing and logic!
You can read a decade of NYT and WP and not find one article with the clarity and analysis found here.
Well done.
Would it be wrong to point out that Scarsi was appointed by Donald Trump?
Unfortunately, that’s relevant, considering the poor jurisprudence of another Trump-appointee, Judge Aileen Cannon who is making a name for her self by not ruling on the most germane things and making a bogus request for jury instructions based on a false premise to which Jack Smith has to respond by today, besides already being corrected by the 11th Circuit twice.
It’s pedantic as hell, but I have a small quibble with your statement in this paragraph: “We now have three different interpretations of a diversion agreement that everyone claims is unambiguous. Schrödinger’s cat had just two states of being: dead and not-dead. Scarsi has given this diversion agreement three.”
I read Scarsi’s order as reasoning that:
The Lowell position is that the Diversion Agreement is not-dead.
The Weiss position is that the Diversion Agreement is dead.
The Scarsi position is that it is both simultaneously (the paradox Schrödinger’s cat).
So are you saying that Sarsi’s position is that of the box that creates the paradox!?
Maybe a better analogy is that it was Scarsi’s job to open the box, and he instead kept the box closed and read tea leaves to figure out the status of the cat.
I was thinking in terms of quantum entanglement between a cat in a box in Delaware and another in California, but I only know of one lawyer with dual bachelor’s in Quantum Physics & Philosophy, and he isn’t clerking for Scarsi. [And with his Philosophy degree, he would not have misused “begs the question” in a draft opinion.]
Is James Comer the cat or the hammer?
Or could he be the box?
James Comer is an ass.
When someone uses “begs the question,” they usually mean that they are questioning. So, to clarify, I ask what are you assuming to be true to determine if they are using the term as used in logic. I heard someone fatuously say that Schrödinger’s Cat begs the question regarding Newtonian mechanics. It is better not to use either term.
This tax and gun case is being turned into a symposium on quantum mechanics. Next I expect to see Heisenberg’s Uncertainty Principle being knocked down by Neils Bohr.
The judge here is acting as if the negotiations in Delaware didn’t happen or are meaningless.
I laughed at the Heisenberg’s Uncertainty principle comment, but it resonated with me. Scarci’s background is business and computer science, not quantum mechanics. Does he really understand quantum physics? The Heisenberg principle says that you can know the speed of a particle or the location of a particle, but you cannot know both at the same time. This (bad) analogy would apply to Hunter Biden having to answer to two different jurisdictions for the same charges.
I was surprised by his use of Shrodinger given his CompSci background. When I discussed it with spouse, who is has a CompSci MS but a MechEng BS, he scoffed that CompSci people never learn physics.
Schrödinger and Heisenberg are out driving, and gets pulled over by a traffic policeman.
“Do you have any idea how fast you were driving?” asks the policeman.
“No, but I know exactly where I am,” answers Heisenberg.
“That’s it, open the trunk,” says the policeman and walks behind the car. “Why are you driving around with a dead cat?”
“Oh, now you’ve killed the cat too!” says Schrödinger.
Apologies for the lame STEM-joke, but this CompSci student had both physics and maths.
Okay, that’s funny and I had never heard it before.
Quirky Steven Wright humor (paraphrased):
“I was pulled over by a police officer. He said, ‘do you realize you were going 60 miles an hour?’ I replied, ‘Sorry, officer, but I wasn’t going to be out that long.'”
(More Steven Wright: “I bought a microwave fireplace. Now I can enjoy an entire evening in front of the fire in 5 minutes.”)
(Sorry to derail the thread…)
Shrodenger’s Cat and memes have been in the generic public discourse, probably most times not 100% technically correct.
My school did actually require some physics and chemistry (it was a BS degree). I started from engineering, though, so I’d already had all those classes.
I expected something more like this:
https://m.youtube.com/watch?v=cev3g826iIQ
“Three-Body Problem: A Precise Simulation”
The three-season remake of War of the Worlds seem to portray a fictional version of quantum physics better than the 3 Body Problem.
I love the phrase, in its proper meaning of avoidance.
“Finally, in one place, Scarsi adopted the colloquial, rather than the formal logic meaning, of “begs the question.””
Double bravo from me.
Simply going by what is in the post above (I have not been reading these pleadings) the court’s ruling is bizarre.
It is basic contract law that a party cannot defeat the occurrence of a condition precedent to excuse itself from non-performance. So, if the USG/DOJ acted to prevent the probation officer’s signature of the document, that should not be a defense to non-performance.
But that assumes the signature/executory performance issue matters. It ought not.
The court finds that the USG/DOJ executed the agreement. The fact that the agreement is executory (in part) is irrelevant. The USG/DOJ has no ability to “withdraw” from an executed contract (absent a specific provision to the contrary). The claimed withdrawal is instead evidence of the government’s breach. The USG is not Bartelby, the Scrivener, it cannot say “I would prefer not” to honor my agreement. That is why government procurement contracts typically include a termination for convenience provision but I see no mention of one here, and such a provision would not seem to make much sense in this context.
In the circumstances here, the only available remedy for such a breach is specific performance, in other words the grant of immunity.
Maybe there is a great deal more going on, and there is some reason the above analysis does not hold, but this all seems rather transparent. The USG entered into a contract and then reneged on it, wrongly claiming the absence of a signature its own actions precluded as a defense.
What am I missing?
I was hoping you’d weigh in (and given your knowledge of this law, I’d love if you read the decision). Because that’s what I think is going on.
And whereas if Scarsi had adopted the government’s argument — that the agreement was never executed — I worried Noreika might adopt it. Except this is an even more bizarre ruling, because it tries to invent an out from a non-party.
It may be tied up in moderation, or I may have forgotten to post, but here is a condensed version of a prior attempted response. (There is no need to post the other one if it is in moderation, my apologies).
I have read the court’s decision in relevant part. The court finds the contract in effect, but performance is suspended (including the grant of immunity) because the probation officer has yet to sign the agreement.
This is akin to a contract where the buyer agrees to purchase real estate from the seller subject to obtaining financing. If the buyer cannot obtain financing, performance is excused.
But there is no excused performance if the buyer caused the financing to fail or never bothered to try obtaining it, etc. It’s black letter law that you cannot defeat or frustrate the performance of a condition precedent to excuse your own performance.
So, the key issue here, within the bounds of the court’s reasoning, is whether DOJ frustrated or interfered in the PO’s officer decision to not sign the agreement.
This is NOT a freaking civil contract. APO’s don’t need to “sign off” on a plea (including a diversion plea) for it to be executed and sentenced on by the court. They review what is entered and give a report, that’s it.
That’s the thing I don’t understand. Bray had no role in approving the agreement. And in their own argument, Lowell argued that what has happened is that the government has forgone supervision, even while Hunter HAS been supervision anyway.
Who was that in response to?
If there is no answer, I guess the answer is no. So, who were you responding to?
Let me try another stab at this.
Bmaz knows this law and I will assume that he is correct. The court however is in a very different place – the decision reads very much like this is a matter of basic contract law.
The court has held – based on its own reading different from the parties – that the agreement cannot be performed because the PO has declined to approve the terms and that is a step that must occur before the immunity provision becomes operative. If you look at this in a vacuum akin to a contingent sales agreement that is not crazy. (It may not be correct but it’s not crazy.) A and B have agreed to do X – it’s a binding contract – but their performance obligations only arise if event Y occurs.
Now, looking at this within the court’s frame of analysis, if the USG has waived supervision, then it has waived the condition precedent. I thought DOJ was treating the agreement as a dead letter but have not followed closely enough to have any views on that.
What I am suggesting, is that looking at this within the court’s framework, it is possible to argue that the condition precedent is excused, either because there is evidence DOJ frustrated its occurrence – or perhaps it has been waived because they have excused supervision. This is certainly something that could be briefed to the court that is responsive to the court’s reading of the agreement.
At a minimum, I have to believe DOJ is extremely unhappy that the court found that there is a valid extant agreement.
It has been almost a day and neither side has brought this to Noreika’s attention.
I think there are ways both might pitch it. In Lowell’s case, for example, he might take Scarsi’s mis-citation of Klamath and say, Welp, 3 different interpretations make this ambiguous, let’s have a discovery hearing.
But Weiss made claims before Scarsi they did not before Noreika. I suspect that has to do with her proximity to what actually went down.
Maybe I’m naive, but the context (district differences between Scarsi and Noreika) will matter some. Maybe she will adopt Scarsi’s ruling, but not without careful scrutiny (one hopes).
Roger Parloff gave a pretty good rundown (on March 31st on shitter) of how Cannon’s “undocketed docket” (https://x.com/rparloff/status/1774419990168392009?s=20) got to be such a mess; I’m not sure what Noreika’s waiting on though.
Update: Hugh Lowell has more on Cannon’s docket issues and it’s impact on the docs trial schedule here:
https://www.theguardian.com/us-news/2024/apr/02/judge-delay-schedule-trump-classified-documents-case
Thus the questions above about interlocutory appeals because now Scarsi has made a ruling based on false pretenses. I’m sure Lowell and his team are deciding what to do next, and we have hints that they have checked in here.
It boils down to whether it’s more effective to appeal now or post-conviction assuming that happens. Does this ruling also preclude Lowell from bringing the plea deal topic up at trial, potentially even calling SC Weiss as a fact witness? That cross examination might be great theater. If Lowell appealed now, does that block a similar appeal later if he needed to file for this?
On a re-read, I see that Scarsi said this:
If civil contract law applies, then the first-filed rule, which Lowell invoked to say that Scarsi had to wait for Noreika’s decision, should apply. Could become interesting if she disagrees with his ruling (which she almost has to, given that it’s so weird).
Ok, I have now read the relevant portion of the Judge’s opinion. In a nutshell, the court finds that the deferred prosecution agreement is a valid contract, but that all performance under the contract, including the grant of immunity, is excused by the failure of a condition precedent: the failure of the probation officer to sign the agreement. “The parties made performance of contractual obligations conditional upon approval.” Slip op. at 16.
Let’s assume arguendo the court’s analysis is correct. It is black letter law that “[a] party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition” A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 31, 677 N.Y.S.2d 9, 699 N.E.(2d 368) (1998) (citing, Kooleraire Service & Installation Corp. v. Board of Ed. of City of New York, 28 N.Y.2d 101, 106, 268 N.E.2d 782, 320 N.Y.S.2d 46 (1971)).
That means the factual circumstances around the probation officer’s refusal to sign the agreement are all important. If it can be shown that DOJ intervened in that decision and frustrated the probation officer’s signing of the agreement, that is grounds for a claim of breach. “[A] claim that the government breached the covenant of good faith and fair dealing is not the same as a claim that the government acted in bad faith [rather it’s] an allegation that the party’s contracting partner deprived it of the fruits of the contract.” Rivera Agredano v. United States, 70 Fed. Cl. 564, 574 n.8 (2006) (citations omitted).
There are other potential issues. The deferred prosecution agreement is made between “the United States of America” and Hunter Biden. The probation officer is part of the US government. So, does the PO’s failure by itself constitute frustration on the part of the USG meaning that DOJ cannot rely upon the failure of the condition precedent?
Previously, I had understood DOJ to be saying it had “withdrawn” from the deferred prosecution agreement, which would be a repudiation of the agreement making the issue of performance irrelevant. The court’s reading of the agreement may have disposed of that line of argument, at least for purposes of the district court proceeding. According to the court, DOJ argued that the PO’s signature was a “condition precedent to its formation.” Slip op. at 6.
Thanks very much for that.
The parties seem to disagree about the interpretation of that condition precedent, if it is one, which is also a fact question incapable of being resolved on a motion to dismiss.
Apart from isolated areas not relevant here, like admiralty, carriage of goods by sea, and federal acquisition regulations, there isn’t a lot of federal contract law. Most of it is comes from the states.
Judge Scarsi’s ruling is not a surprise when compared to the recent rulings and scheduling actions of Judge Cannon in Florida, Judge Noreika in Delaware and the six conservative justices on the SCOTUS.
In my opinion, the founders/leadership of the Federalist Society have been using their best attorneys to, in their minds, save America from another Democratic presidential administration by coordinating rulings in these cases to ensure Biden has difficulty winning reelection this November.
In her answers to the U.S. Senate Committee On The Judiciary Questionnaire for Nominees, it appears Noreika had no criminal case experience. She also never clerked for a judge. In addition, her brother, Keith Noreika, is a well known MAGA Trump supporter. Consequently, it is not surprising Judge Noreika appears frozen at this time.
Scarsi appears to have been designated the leader (the Alpha Dog) in this pack of judges and justices by the Federalist Society leadership; consequently, he’ll expedite HB’s case in hopes of having a verdict before the election.
Judge Cannon will stall as long as possible to avoid Trump going to trial before the election. And the six conservatives on SCOTUS will also stall to avoid hurting Trump’s chances to win this November.
So, Scarsi is the same as Cannon? Seriously?
Both are following the script provided to them by the Federalist Society attorneys.
They still have to get 12 jurors to agree beyond a reasonable doubt, based solely on the evidence presented.
Your supposition is unsupported. Cannon’s conduct is well-documented. This weird opinion aside, that’s not true for Scarsi or Noreika.
Scarsi’s behavior is, AFAIK, consistent with how he treats ALL defendants. Until we see reason different, please assume he’s just a prosecutor’s judge with some sloppy clerks, not that he’s doing this for partisan reasons.
“In her answers to the U.S. Senate Committee On The Judiciary Questionnaire for Nominees, it appears Noreika had no criminal case experience. She also never clerked for a judge. In addition, her brother, Keith Noreika, is a well known MAGA Trump supporter. Consequently, it is not surprising Judge Noreika appears frozen at this time.”
What a load of total bunk. Also, her brother is germane? Civil contract law controls it? The discourse on this topic is getting insane.
Read her answers in the Senate Judiciary Questionnaire.
Yes, her brother is germane. And Judge Cannon’s mother is germane to Judge Cannon’s rulings and behavior, too.
Scarsi will interpret contract law to fit his ideological beliefs and the goals of the Federalist Society attorneys.
Comparing Cannon to Scarsi, Scarsi has plenty more legal experience. Cannon shouldn’t be a judge. Neither should Noreika.
Until his ruling today, I thought Scarsi was more qualified than the other two to be a judge.
You are completely full of it, and have no clue about what you are saying. Have you celebrated the FedSoc recommend judges who have done well, or just run your yap about people you, with clearly little actual legal experience, want to complain about on the internet? Lol.
I like Federalist Society attorneys like Ted Olson.
And Christopher Wray, too.
And of course, we all know Chief Justice Roberts is greatly supportive of the Federalist Society.
These three appear to support the Rule of Law and the US Constitution.
I like attorneys who support the Rule of Law regardless of their political party affiliation, their memberships in various organizations or their political stances on “wedge” cultural issues.
The Federalist Society now acts like a cult; I’m not sure Ted Olson expected that when he help create the Society long ago.
FedSoc was always a cult. It was never a simple advocacy society. It was launched in 1982 by “students” from Harvard, Yale, and Chicago, so the myth goes, but it was birthed with forceps wielded by foundations funded by the most hard right conservatives in America: Olin, Scaife, Koch, Mercer. During the CheneyBush era, FedSoc membership became a de facto requirement for lawyers seeking employment with the USG. It has since metastasized without relief.
When Ted Olson co-founded it, I don’t believe it was cult. Later when all those you identified above started giving it money, it became a cult that reflects their extreme ideological views of how a government should work.
Richard Mellon Scaife was once an investor in a business owned by a close friend of mine.
I identified four sources who were founding supporters – at the beginning.
The beginning was the initial weekend symposium in April 1982 featuring Olson, Scalia and Robert Bork and others as speakers.
The Institute for Educational Affairs, founded about four years earlier by William Simon and Irving Kristal, paid for most of the $25,000 cost of conducting that symposium. That’s the beginning I’m talking about.
The donors you identified didn’t give money to the Federalist Society for Law and Public Policy Studies until after that entity was created as a nonprofit corporation in the Fall of 1982.
You’re focusing on who paid for a single springtime symposium, when the organization bearing the same name was created a few months later? FFS. That’s a naming exercise. It’s the FedSoc as an institution that counts.
I’m sorry, you are wrong.
The beginning is the symposium in April 1982. It later became a cult after the donors you previously identified saw an easy opportunity to hijack and control a fledgling conservative movement.
You’re referring to a one-off symposium, an afternoon of speeches that cost a few grand to put together, at which people you like spoke.
I’m referring to the institution of the same name that arose from the continuing efforts by the same extremely well-placed, radical right individuals that organized that one-off gathering, and put it on a permanent, extremely well-funded footing.
Your blanket assertions about who should be a judge are overblown. Noreika is fine and qualified, notwithstanding the president who appointed her. She does seem to be flubbing, though, her current part of this case.
Scarsi has only a few months more time on the bench than Cannon, but his experience prior to his appointment is more typical: he had a decade more, and more high-level experience than Cannon. And he did not join FedSoc until 2017, so he’s not a legal cradle-to-grave member like Kavanaugh. This decision seems down the rabbit hole, but is it representative?
They both seem like judges who are inexperienced in the area of criminal law. I suspect they both fell down due to not consulting with their colleagues who were experienced in criminal law.
Scarsi’s opinion could easily be that of a judge who had experience with ordinary contractual law trying to interpret the circumstances of a plea agreement (without consulting anyone who knew about pleas.)
Scarsi’s opinion is a tortured version of ordinary contract law.
One would think that a geek like Mark Scarsi, who holds bachelor’s and master’s degrees in computer science, would be more familiar with formal logic. And as a magna from Georgetown Law, one would hope his familiarity with contract law, while perhaps not as good as Mr. Hart’s, would be more acute. But “How can Scarsi…?” is a lament that will live in Prof. Kingsfield’s Contracts class for decades.
How, for example, can Scarsi “not reach” HB’s claim that the govt is estopped from denying the validity of the Diversion Agreement? Denying its existence is a central claim by the govt. He argues that the contract is “unambiguous,” and that, therefore, the govt’s interpretation of it can’t change its meaning.
Setting aside the gobbledygook, the court can’t proceed to interpret a contract it claims is “unambiguous” without first deciding that it exists. Having decided that, why avoid the obvious issue of whether the govt is estopped from arguing that it doesn’t. A party’s interpretation may not be persuasive, but it is certainly relevant for many reasons, including whether the govt is acting in good faith.
Having worked with hundreds of MS-CS and Ph.D. – CS people over the years, I can say that although your hope w.r.t. formal logic is reasonable, it’s not borne out in the real world. God is in the Compiler, or Interpreter, as the case may be. You play by the rules of whichever God you are dealing with, or you fail. There is no arguing with God, even if it’s being illogical in your opinion. Languages have illogical syntaxes (highly related to idioms), and even Python, originally developed to be an idiom-free language, is nowhere near idiom-free and has become less so as it has grown. “You play by the rules” is a far more dominant paradigm than “That’s logical.” Not much math is required for an MS-CS degree in a typical program; I am looking at UVA’s MS-CS requirements, which are a year of undergraduate calculus and a discrete mathematics course, and as far as I can tell, that’s it.
My point wasn’t that the software dominant in any application has it’s own faults and human-derived internal “logic,” it was about the logic the individual brings to the task of working with it.
It’s more pattern recognition than logic. Logic comes in at a very tactical level, like “Does this if-statement do what I want?” which is usually of the order of complexity of “if (x is not a cat) do something.” Skilled programmers can figure out how to organize and structure their code for efficiency and (gasp!) maintainability far more quickly and with better results than unskilled programmers, and so on; actual coding is a small part of the overall task. Of course, there’s a “years of experience” in there that a typical MS-CS won’t have had an opportunity to acquire before they graduate.
The “perfect” programmer is one that can create robustness and elegance. The closest classical definition is a celebrated architect, which requires right and left brained excellence.
Seemingly Apple created an organism that balances these traits at an exorbitant cost while my experience has been related to working with a person that created software that requires zero maintenance cost and is still in use today even though the products were created in 2001.
Mine required differential equations OR operational math, along with discrete math. (It had come out of a math department.)
I remember one of my calculus teachers saying that it’s where you really learn arithmetic. It isn’t quite a joke.
Formal logic never came into any of my CS classes, other than simple truth tables. (I did take a class, long before that, but I can’t say that much of it is still with me – it’s been nearly 50 years!)
I might be totally off base here, but I wonder about good faith, bad faith and full faith, so does this apply to the situation, i.e., Delaware state contract/diversion agreement with Hunter??
Congress has not amended the Full Faith and Credit Act since 1948.15 Thus, under current law, “all courts” in the United States—including federal courts—must “treat a state court judgment with the same respect that it would receive in the courts of the rendering state.” 16 Thus, the Act ordinarily precludes parties from re-litigating issues that other courts have adjudicated.
It’s at Cornell Law under ArtIV.S1.5.1 Generally Applicable Federal Law on Full Faith and Credit.
Not sure how to link just yet.
Please excuse, or just blow it off, if this info is not applicable :) ???
Wouldn’t it be logical to assume that probation would sign off on the agreement after the probation period was over at which point the agreement would be final? Does the probation department have any say on the terms of the probation or do they just make sure that whatever terms the parties agree those terms are followed and completed?
No, that is neither correct nor logical. The probation department does pre-sentence reports, and they have a huge say in what the court does as to acceptance and sentencing.
One thing I’m amused by is that Scarsi cut this quote short to cut off the bolded language.
Either Scarsi thinks BOTH the prosecutors and defense are not reasonable people (but he is), or he has argued this contract is ambiguous.
Funny thing about contract disputes that end up in court – and become cases law students read. The parties always find their contract’s terms “susceptible to more than one interpretation.”
This is from a guy who made partner at O’Melveny & Myers and ran the L.A. office of Milbank, Tweed, Hadley and McCloy, and chaired its global IP practice? FFS.
Funny thing is, nearly no “civil litigators” know anything about criminal trial law.
I agree, though some lawyers manage to obtain experience in both fields. But I don’t get your distinction about civil v. criminal when it comes to a contractual element in a criminal case. Contract law itself isn’t either civil or criminal, it’s civil.
Because plea agreements are not normal civil contracts, they exist in a different plane and world. I have done too many to possibly count, and none, ever, trial nor appeal, have ever come down to traditional civil contract law. None. People are overthinking this, and getting into lala land.
What is the implication if Lowell argues that this means Scarsi has rendered the diversion agreement ambiguous?
I’m also trying to think ahead about how the various parties notice Noreika on this opinion, which neither may want her to adopt, not least bc she interacts with Margaret Bray on a daily basis and knows that Bray is supervising Hunter’s pretrial release.
I can no longer be sure whether you are responding to me or someone else. If it was to me, I am not sure what it means. A lifetime fed judge should never be worried about an APO officer, but who knows here. The court controls release and probation, not the initial report APO.
Lol, did the parties stipulate to it? Then it probably was not ambiguous to them. I have no idea what Scarsi is doing (or as you noted why he might do so), but:
“Either Scarsi thinks BOTH the prosecutors and defense are not reasonable people (but he is), or he has argued this contract is ambiguous.”
Yes, but the latter is still problematic.
Corsi preceded that reference with
That sure sounds to me like “Scarsi thinks BOTH the prosecutors and defense are not reasonable people (but he is).”
Scarsi preceded…, that is.
The only explanation that makes sense is the “Federalist Society”.
Bullshit. As far as I understand, he’s like this with all defendants.
Please stop spewing single-explanation theories here. They make one dumber.
Apologies, the Trump appointed label just seems like an automatic Cannonesque trigger.
Why?
I hope you’re right.
OT: R.I.P. John Sinclair
https://apnews.com/article/john-sinclair-dies-82a88b0420656561e708ea36c4050a21
Thanks to the Burger Court for upholding the Fourth Amendment on his and his co-defendants’ behalf.
Footnote 5 is even worse for this jurist. “Clark and its progeny constitute a relatively small universe of cases interpreting binding plea agreements, and the parties relied extensively on interpreting state law in their briefs. Principles of circuit law governing interpretation appear generally consistent with civil contract principals under state and federal law. Thus, the Court cites some authorities interpreting nonbinding state law in aid of its decision but will note which law those authorities apply.”
So, there’s very little case law; therefore, I’m going to pick and choose which state and federal contract laws I want to apply here. And, oh yes, I’m going to create a mess on appeal, but that’s not the point.
Have fun trying to appeal on an interlocutory basis! There’s an election to be had!
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have moved to a new minimum standard to support community security. Because your username is far too short and common it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]
DJT shares apparently closed today at $48.66.
Closed yesterday at $48.66. Closed today at $51.60.
Thanks. I looked carefully for a date for that number. But it seems to be getting harder to search for the most basic facts with a date attached. Media seem to want whatever they have to sell to be timeless. LOL.
I just go to Google and type in NASDAQ:TMTG and it comes right up with today’s figures. You can switch to a 5-day or 1-month view to see the trend as well.
I giggle occasionally, but I never google, but thanks for a more precise search term.
You may anonymously google by using Startpage. More on their history and MO on Wikipedia, just looking for startpage dot com.
You can also try finance.yahoo.com
I have a Fidelity.com account, which is easy to use and gives the status of afterhours prices: $51.44 as I type.
You don’t need a Fidelity account to get prices but you do to see the more detailed summaries. And you get a time stamp to the nearest whole second
Perhaps the appendage “-esque” should allow Scarsi to get away with his very loose analogy re Schrödinger’s cat. And perhaps Scarsi was merely projecting about ‘begging the question ‘ For, as a famous logician once wrote:
I always wondered why the options for Schrödinger’s cat are only two: dead or not-dead. A third option could/would be “half dead.”
Because the third case collapses into the second, that is, if it’s half dead, it’s also half alive, that is, it’s not dead.
Give an example of a not-wave-not-particle as a third option.
Regular, normal oxygen has three equal energy states: (+, 0, -). These can be made unequal by placing oxygen in a strong magnetic field. The wave/particle duality is intrinsic to how these different states can mix or interact in given measurement.
Erwin Schrödinger considered the simultaneous live/dead cat to be patently absurd and shared this gedanken experiment to with Albert Einstein to point out a serious problem with the common interpretation of quantum mechanics that considered mixed states to be real (a criticism to which they both largely agreed). Current experiments have managed to greatly expand the size of quantum objects that do behave in such odd ways but we are a long ways from cat sized super positions.
Thank you. Boxed cats are definitely a poor metaphor.
“He had just made the acquaintance of a group of citizens when an invisible dog began to yelp and snarl and howl and make himself very comprehensively disagreeable, whereupon young Wilson said, much as one who is thinking aloud–
“I wish I owned half of that dog.”
“Why?” somebody asked.
“Because I would kill my half.””
(Pudd’nhead Wilson, by Mark Twain.)
As Miracle Max said “There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do.”
Schrodinger’s Tripwire
Philosophers & philogogists
Are bound to disagree
About the bounds they might expound
That limit you and me…
But counterpoint, you may anoint
A usage no one gets
In service of a frothy cause:
The fraud that you abet.
But push to shove, you can’t resolve
The meaning from the meme
So what the hell, just file a pile
That makes our brainpans scream.
Kudos.
This interpretation by Scarsi is a serious head-scratcher. If both parties are bound by the diversion agreement, and performance is due once the probation officer signs it, does that mean that the prosecution would end if she signed it tomorrow? Could she be compelled to sign it somehow [unlikely]? And even if she can’t be, do the Government and defense have existing obligations under the agreement, even though actual “performance” hasn’t begun? And how long must the contract remain binding, as it is now, before it expires and becomes void? Maybe those are the things he wants each side to address via motion practice.
He calls it Schrodinger’s cat-esque. I call it a shitshow of the highest order.
> Could she be compelled to sign it somehow [unlikely]?
Mandamus? That’s an amusing thought.
In other legal news, Jack Smith has filed again, on the proposed jury instructions:
https://twitter.com/AnnaBower/status/1775363835114733591
https://www.documentcloud.org/documents/24529674-sco-response
Kise for defendant has as well:
https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.427.0.pdf
Smith appears to be anticipating that Cannon will issue her ruling regarding jury instructions and then try to immediately go to trial in order to prevent a pretrial writ of mandamus by the govt concerning those instructions from being filed. Is that even possible for her to do?
At the risk of oversimplifying a little bit: yes. It’s her case right now; no other court has jurisdiction over it. She has virtually unlimited discretion to set the trial when she wants.
She can’t set trial for, say, April 4th or 8th. She has to give both sides notice and time to prepare. That gives Smith time to approach the 11th Circuit.
That was my assumption; the reason I raise the question is that Smith, then, has given Cannon notice in that regard: that a writ will follow immediately upon a botched 793 ruling by her, couched in a narrative suggesting her willingness to flaunt SOP (that, in turn, would inexorably hearken back to her Special Master Disaster).
The question that follows from that is why is Smith laying down that gauntlet to her? If he’s sure she won’t pull a sudden trial-commencement-quicky, then why give her the heads-up that a mandamus writ will flow from that? Wouldn’t it be better to let her issue the jury instruction ruling in Trump’s favor and then immediately file the writ, asking for an emergency stay from the Circuit in the process, and expect another Panel or en banc slapdown, along with a possible imposed recusal for two egregious, prejudicial whiffs in a row?
Jury instructions aren’t final until the trial ends. Jeopardy, for double jeopardy purposes, attaches at the beginning of trial, with jury selection.
That’s a problem for Smith, but it’s one crafted out of careful work by Cannon. It’s unlikely to be the result of happenstance, inadvertence, or negligent delay.
Smith can only request that the 11th Circuit do something, like issue a writ of mandamus. He has no control over whether it does it.
Smith seems intent on preserving issues for appeal, if he can alter Cannon’s apparent framing and make one. That requires, among other things, giving Cannon notice and an opportunity to do what she seems intent on avoiding. Surprise would not aid Smith’s case.
Jeopardy attaches when jury selection is complete and the jury is sworn in.