Bullshit and Also, Aileen Cannon, Post

I know you all probably want a thread where you can talk about Aileen Cannon’s 3-page order denying Trump’s motion to dismiss based on bullshit claims about the Presidential Records Act.

For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.

Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.

Fine, fine, have at it. She claims Jack Smith is the one making nutty requests, not herself.

Lee Kovarsky, who generally has a great read about the appellate posture of such things, warns that it’s unlikely Smith will ask for a writ of mandamus, but might ask for her recusal, which probably won’t work.

But really, I’m more immediately interested in this superb quote Will Oremus included in a WaPo article describing disgruntled new owners of a Xitter blue check, which may be my best ever quote in a mainstream publication.

Marcy Wheeler, an independent journalist covering national security who greeted her blue verification badge Wednesday by posting an expletive, said she remains on X mostly to monitor right-wing narratives and disinformation so she can push back on them. She said she believes the verification changes are part of an effort to restore X’s status as a “public square” so that Musk can use it to “mainstream far-right ideas.”

On Thursday, Musk amplified various posts from verified X users defending a Jan. 6, 2021, suspect, decrying a rise in the “foreign-born” population under President Biden, highlighting crimes by Syrian migrants, mocking diversity and inclusion programs, and suggesting that leftists want to disarm American citizens “because they intend to do things that American citizens would want to shoot them for.”

In between, he agreed with a post that said that “a blue checkmark is a stamp of authenticity.”

As I said, have at it!

174 replies
  1. ColdFusion says:

    Just call him ‘cisgender’ that should trigger him into removing it. I’ve seen thicker skins on a bowl of gravy.

  2. DumbledoreMV says:

    I believe Trump’s attacks on judges are an attempt to shift the Overton window in each case. If he says the judge is “not fair”, a judge just may lean in his direction just to prove he/she is fair.

    Can a Mandamus request or a recusal request have the same effect from a prosecutor? Just a suggestion a judge is leaning too far towards one side may have the effect of causing the judge to lean the other way if only to prove they are impartial.

    Was getting a ruling today from Judge Cannon, just a few days after the jury instructions were filed and the commentary class goes off on her, coincidence or an indication she can be impacted by extra judicial comments.

    [Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You published this comment as “DoumbledoreMV”; your previous username was “DumbledoreMV.” As I suspect a typo in today’s username, I’ve corrected it this once. Please clear your browser’s cache and check your autofill. Thanks. /~Rayne]

    • EatenByGrues says:

      Her ruling didn’t indicate at all that she has been chastized. Indeed, it seems to be giving Trump’s defense a roadmap about how to get an acquittal: don’t let arguments about the controlling law come into play during pre-trial proceedings (which is where such arguments normally should be made). Instead, save it for trial.

      There’s a giant loophole here in the longstanding precedent around double jeopardy; in that it attaches when a jury is empaneled, not when a jury acquits. However… a hung jury doesn’t cause double jeopardy, but a dismissal or directed verdict does, even if the judge is wiping her bottom with the law when such ruling is issued, and the finder of fact never issues an opinion.

    • Operandi says:

      Cannon has proved not immune to criticism. But in her case it just tends to make her brittle and resentful. Whether a warning shot of a mandamus attempt might work to course correct another judge, in her case I’m certain that it would cause her to simply triple down and get even snippier with the prosecution.

      • Discontinued Barbie says:

        I was listening to Ken White’s Pod “Serious Trouble”, the other day and he was breaking down the office management issues she has been having as of late.

        It got me wondering if she truly is over her skis on this.

        I wonder if she is not a good office manager and relies too heavily on her ever decreasing staff.
        If she is overwhelmed and doesn’t have trusted people to do the leg work, she may be mucking this up with inexperience.
        Either way she has shown that the job is overwhelming and/or she is on the take.

        If by the off chance she just stinks at her job and nothing nefarious is going on, I can see how the criticism could become her evil origin story, much like Clarence Thomas’. If you can’t beat ’em, join ’em and bask in the billionaires gratitude to drown out your morality and impartiality.

  3. PJB2point0 says:

    I am confused how the SC would style a straight request for recusal? Presumably it would not be based upon the wrong ruling on Trump’s MTD. Wouldn’t it be best to first move in limine to preclude Trump from asserting a defense on these PRA grounds and if she rules wrongly or dawdles, then go to the 11th Cir on appeal of a legal error by the judge and seek, as relief, her recusal? Or is that just too cute and its time to just throw caution to the wind and allege to the appellate court that the trial judge is scheming to thwart justice by causing double jeopardy to attach?

      • John Herbison says:

        How would filing a motion in limine be foolish?

        I expect that the Special Counsel will at some point file a pretrial motion in limine to preclude the defense from suggesting to the jury that the Presidential Records Act affords a defense to 18 U.S.C. § 793(e) unless and until the defense offers admissible evidence that Trump in fact designated the documents as personal and in fact mistakenly believed that the PRA provided him with authorization to keep and withhold classified records from NARA and the grand jury.

      • John Herbison says:

        One of the authorities cited in the Special Counsel’s April 2 filing is United States v. Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004). In that case, the government during the midst of trial sought and obtained a writ of mandamus from the Court of Appeals regarding a jury instruction that the District Court proposed to give. Even if Judge Loose Cannon defers ruling on the jury instruction until trial, the government may then seek mandamus relief from the Eleventh Circuit during trial.

        • earlofhuntingdon says:

          If you want to stop a case from blowing up, it’s not usually a good idea to wait until the fuse is lit.

        • FL Resister says:

          Who does Judge Cannon think she’s fooling?
          Her ruling out using PRA defense pretrial means nothing.
          Even I know that. Her intention to blow up the case only becomes clearer with each inaction reaction.

    • earlofhuntingdon says:

      Smith prospered at the DoJ and the Hague, a tough, political place to practice criminal law. He could not have done that were he so lacking in street smarts as to explicitly accuse a presiding judge of working to tank a case for the defendant, without having hard, irrefutable evidence.

      He might have that suspicion, but the professional response is to strategize around it, not take it for a walk in the park.

      • emptywheel says:

        At this point I think the main goal is to prevent her from cockblocking Chutkan after SCOTUS rules.

        • harpie says:

          Sorry if this is a dumb question, [I’m not even sure what the phrase means], but how might she do that?

        • EatenByGrues says:

          Scheduling a trial to conflict with the 1/6 trial, in an attempt to push it until after the election.

        • Rayne says:

          Please don’t drop links without additional explanation/context. Yes, it’s a Wikipedia link but let’s not get into the habit of this.

        • earlofhuntingdon says:

          Sounds like rugby slang for an illegal tackle. It’s literal meaning is apparently what it sounds like, preventing penetration. By whom is unclear. It’s metaphorical usage seems robust, if not permitted on the MSM.

        • EatenByGrues says:

          Usual causal use of the term refers to someone who fails to take the hint that a couple wants some privacy so they can get busy, and insists on remaining in their company.

          But it’s become a general (if crude) term for interference.

        • harpie says:

          lol! I like this explanation…[“robust” :-)]
          especially considering it is Marcy who used the term!

        • ernesto1581 says:

          What’s to guarantee SCOTUS actually issues a decision on this existential etc case in a timely manner?
          US v Nixon decision was issued July 24, 1974 (& an unrelated case, Milliken v Bradley, a day later.)
          Citizens United v FEC was argued in March 2009, called back for a special session in September, with the decision finally issued January 2010.

      • EatenByGrues says:

        But what would he need? Evidence of ex parte communications between Trump or his counsel and Cannon? A suitcase full of cash? It’s long settled that “Trump appointed Cannon” is insufficient grounds for recusal, and there is more generally a problem with political hacks who get appointed to the bench being able to operate without recourse, but every time Cannon does something more outrageous, the legal eagles in the Beltway media opine that “no, this isn’t enough” to get her removed from the case. Slapped down by the 11th Circuit, perhaps, but “moving for recusal” is simply a button that no prosecutor ever dare push, no matter how flagrant the misbehavior from the bench.

        It almost seems like the best course of action, at this point, would be to dismiss the charges (with prejudice as Cannon won’t allow them to be dismissed otherwise), indict Trump on several OTHER instances of him withholding classified documents, ignore the howling from the usual suspect about what a gross violation of Trump’s rights serial prosecution of similar conduct is, and hope for a more reasonable judge.

        If the jury’s empaneled and Cannon is still on the bench, I see no way that Trump doesn’t walk. Yet without that envelope full of cash, or some clear legal error (and it’s not specified what that may be), there’s no way the coach gets the referee changed out, no matter how many whistles in a row go against his team.

        • emptywheel says:

          I agree that dismissing these charges is an option that Jack Smith needs to keep in play.

        • Peterr says:

          Dismissing the charges would prompt Trump to demand all the documents back, and the Intelligence Community would have an absolute fit.

          Smith may have that option in play, but he’ll get a shit-ton of pushback from the spooks and from NARA when he talks to them about possibly using it.

        • taluslope says:

          Demand all he wants Trump is getting sh*t back.

          Now if he becomes president (OMG), then of course he demands, asks to declassify, and my reading of the applicable statues suggests that the secretary of X rolls over (but actually should resign in protest). If Trump just wants to visit his precious, he could be invited to step into the safe where they are stored (and where if it were me, once he were in the safe, I’d scramble the lock and then resign).

          But if president and gets the documents declassified, doesn’t he send them to Fox in spite? We are in uncharted seas if Trump is reelected.

        • Rugger_9 says:

          Would it be worthwhile to consider that Cannon is playing a game of timing to ensure Chutkan cannot go forward once SCOTUS rules? If Cannon dismissed now, the field is clear for Chutkan to proceed.

        • Sussex Trafalgar says:

          Smith won’t consider filing mandamus, recusal or dismissal until after the SCOTUS issues a ruling from their April 2024 hearing on presidential immunity, likely this July.

          That’s the prudent course of action for Smith.

        • Sussex Trafalgar says:

          It’s possible he is a coward.

          And he doesn’t want to be on the losing side of a SCOTUS ruling, so he’ll wait until he hears more questions and answers from the SCOTUS justices this month before he puts up, if he puts up at all.

        • EatenByGrues says:

          We’ll soon know how much SCOTUS is in the tank for Trump, or not.

          If they reject the widespread presidential immunity claims (like they should), Smith’s prosecutions will both be on firmer grounds.

          If they rule he HAS immunity (which I don’t expect they will; they’re smart enough to realize who the current POTUS is), I would expect all of the federal cases against Trump to meet an unpleasant end.

          If they split the baby to cause more delay–i.e. treating the immunity question as something that must be legally decided before trial for each count… (as opposed to a fact matter for the jury) I would also be nervous if I were Smith. While that wouldn’t be a fatal blow to the 1/6 case, it would perhaps push it until after the election.

        • dopefish says:

          If he’s concluded this case can’t make it to trial before the election and/or that Cannon won’t give him a fair shot at trial, then maybe there is no point in him being hasty.

          If he does try mandamus he’ll want to maximize his chance of success. Why not wait and see what she does next?

        • bmaz says:

          Or, maybe, just maybe, Smith is just protecting things by not being aggressive, as most prosecutors do.

        • Vinniegambone says:

          Cannon’s conduct bears a little too close resemblance to Johnny Carsons Karnak the Magnificent.

          I would not rule out ex parte communications. She aint that smart to play chess at this level, but is smart enough to have channels and to seek advice on Whatchya want me to do now boss?

        • dopefish says:

          Any improper communications seem highly unlikely… it would be extremely risky.

          Why would Cannon expose herself to that risk, when she could instead just do what she seems to be doing: just nudge Team Trump in the right direction via her hearings and public orders, and maintain deniability?

    • bbleh8ch says:

      Indeed just that strategy has been proposed elsewhere: file a motion in limine to exclude PRA entirely as a matter of law, then appeal an adverse ruling or seek mandamus if she refuses to rule. Focus on removing a key issue and avoid attacking her directly.

      • PJB2point0 says:

        But, she could simply sit on the MIL and the SC wouldn’t have accomplished much. I’d think he’d need to give it a date certain for resolution and in the end, take it up as is?

        • bbleh8ch says:

          Right, seems to me he’d want to ask for prompt resolution, and if none were forthcoming after a reasonable time, seek mandamus for all the reasons cited in his recent reply and others — key issue, only of law, failure to resolve unfairly limits gov’s right to appeal, etc.

    • Harry Eagar says:

      A motion in limine to force Cannon followed by appeal to 11CA is what Laurence Tribe advocates.

      • John Herbison says:

        The Eleventh Circuit has twice reversed Judge Loose Cannon at the investigative stage of this prosecution. In other cases where the Court of Appeals has reversed the same trial court on multiple occasions, that court has ordered reassignment to a different District Court judge upon remand. United States v. Gupta, 572 F.3d 878, 892 (11th Cir. 2009); United States v. Martin, 455 F.3d 1227, 1242 (11th Cir. 2006); United States v. Remillong, 55 F.3d 572, 577 (11th Cir. 1995); United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (per curiam). See also, United States v. White, 846 F.2d 678, 696 (11th Cir. 1988).

  4. IAN L_04APR2024_1731h says:

    Doesn’t it seem like she’s a 1st year law student, with this order saying:
    “of course denied, and whatever, i wasn’t talking about jury, you were… plus, I NEED HELP from you big brain lawyer ppl, PLS HELP!”

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  5. EatenByGrues says:

    Been lurking here a while, but the essence I got from Cannon’s ruling was one of complete mischief: “Don’t file a motion to dismiss based on the PRA now, before jeopardy attaches, which if approved the Government can appeal, and might even get me removed. Wait until trial, THEN file this motion to dismiss, and it will be given due consideration.”

    Cannon seems to be smarter than Trump’s legal team. Smith knows what’s up, of course, but as long as Cannon avoids error that might give him an opportunity to appeal, his ability to do anything about it seems to be limited.

    If this is indeed what happens–the case proceeds to the trial stage, a jury is seated (at which point jeopardy is attached), and then Cannon dismisses the charges even if on a flagrantly dubious legal theory, what then? There’s precedent for defendants who bribe judges losing their double-jeopardy protection (on the grounds that they were never in jeopardy to begin with), but absent the sort of demonstrable quid-pro-quo that would impeach Cannon’s neutrality beyond doubt, could this trial simply go this way?

    • Cicero101 says:

      Is there no right in this jurisdiction to appeal a criminal dismissal for error of law?

      • John Herbison says:

        A pretrial dismissal of the indictment or any count(s) thereof is appealable as of right pursuant to 18 U.S.C. § 3731. A judgment of acquittal at the close of the government’s proof is not appealable. A judgment of acquittal after a jury verdict of guilty is appealable by the government, with the remedy being reinstatment of the guilty verdict.

  6. harpie says:

    Thanks for posting that Kovarsky THREAD [in the reader ap]…but…Ugggg!

    This is how it ends:

    3:49 PM · Apr 4, 2024

    […] 7/ And to be clear, Smith is quite likely to lose all of this. CA11 is unlikely to reassign the case on appeal. And good, practiced attorneys don’t move for recusal lightly – contra what many less-practiced folks have suggested in media.

    8/ That being said, Smith is certainly looking at Cannon’s body language, and the content of this order, and thinking that he’s probably got little left to lose.

    So recusal it will likely be.

    9/ This is all very depressing for people that want to see Trump held to account, but I’m just explaining how the world is; not how it should be. /e

    • bmaz says:

      Harpie, thank you for linking Lee, he has been very bright for a long time. But he is right, too many people are nuts. But, then again, thanks to Rayne, nutters here still get better than people who have spent a significant portion of their adult lifetime supporting Marcy and the Emptywheel blog. Only to have a legally illiterate interloper like Rayne decide what information readers should consider. It is truly a joke.

      • emptywheel says:


        Rayne has been around since 2004, no matter how many times you try to obscure that.

        Rayne has skills you don’t (a counterpart to your legal experience), which are tied much more closely to keeping the site up and running.

        I linked that as well. Read the post.

        I would, once again, request that you start adhering to the same rules everyone else here is held to. I, along with a number of commenters, welcome your comments. But not if your goal is to just disrupt the comments section.

        • bmaz says:

          Yeah? I do not remember Rayne being around when this blog was created and started. I did not ask to join, I was asked. I spent nearly 18 years supporting, defending and promoting you.

          You have been to our house multiple times, as a cherished guest. So, too, have your siblings and other family members, including June Bug.

          By the way, I did indeed read the post. I just object to the way I have been treated after so many years of loyalty to you and this blog. People get to shit on me ad infinitum, and the best Rayne will do is post some lame italicized garbage postscript while leaving the insults and defamation up like they are fact.

          Yes, I am sorry, but I truly do have a problem with this. How did it come to this?

          Adding, I doubt this response will live on. But thanks for the response. Something I rarely got from you in the last year.

          Go ahead, shit on me and have Rayne purge what is going on.

        • Al Van Jill says:

          As a long time reader, this thread is breaking my heart. Please, bmaz, we love you too, please, don’t let these differences tarnish your wonderful friendships and legacies.

          Hugs to all of you, Marcy, bmaz, Rayne, lurkers and regulars, love to you!

        • EatenByGrues says:

          And what do you want? Your moderation privileges back? You abused them regularly and thoroughly. Before he got sacked, said co-worker was conspicuously removed from a leadership position, reduced to a mere worker bee. He didn’t take the hint.

          As I said earlier, I’ve been lurking a while.

          And, as they say down south, a hit dog will holler.

        • earlofhuntingdon says:

          A longtime lurker would know to stop pouring kerosene on a fire and leave it to the principals to sort out.

        • earlofhuntingdon says:

          With all due respect, your last line, like Mark Twain’s Notice in Huck Finn, is bunk.

        • bmaz says:

          Hi Rayne, why is my comment “awaiting moderation”??

          Can this blog no longer take honest and informed responses? What a joke.

        • Rayne says:

          As you replied to Marcy, I’m letting her handle your reply. As for why it’s in moderation, I have no idea what triggered it. Clearly not all your comments end up in moderation.

        • bmaz says:

          Lol, it is/are the protocols you put in place and brag about. Thank you so much.

          [Moderator’s note: You have been warned before that attacks on moderation will be binned, just as other commenters’ attacks on moderation have been binned in the past when you were a mod, under the same WordPress system “protocols.” You’re not only attacking moderation but off topic. Expect future comments like this one to be binned. /~Rayne]

        • Playdohglobe says:

          BMAZ – like the late great Lou Asner once said. on SNL,

          ” you can never put too much water in a nuclear reactor.”

          It is tough for a Saguaro Cactus to bloom in the desert ..when it does …it is pretty cool and useful.

          Thanks to all for helping this site along. No where else would I be able to find such diverse viewpoints on truly relevant topics from those who have walked a few miles along paths less trodden by the average joe folks like me.

        • FL Resister says:

          When vitriol is unleashed things start to break. Respect is an element of civil society.

  7. earlofhuntingdon says:

    Kovarsky’s argument is that there isn’t a sufficient hook to hang a request for mandamus on. He also argues that a request for recusal is unlikely to succeed, because courts are loathe to do it generally.

    He frames the mandamus appeal as one where Cannon has failed to order a jury charge – well ahead of when that’s needed, which is at the end of trial. That’s not a failure to do something she is obligated to do now, and is unlikely to succeed as a mandamus argument.

    But that doesn’t seem to be the only way Smith has to frame his request. Another is that Cannon is proposing two variant instructions, both clearly erroneous readings of the law, that could position the case to be dismissed, denying the prosecution a right to appeal. If Cannon is “just wondering” about how that would work out, it’s inefficient and prejudicial to the prosecution.

    Kovarsky’s caution that “good, practiced attorneys don’t move for recusal lightly” is obvious. But he then observes that Smith is concerned that Cannon is framing the case to allow her to dismiss it with prejudice after jeopardy attaches. Contra Kovarsky, that would seem to be an adequate reason – even for good, practiced attorneys – to ask for recusal or mandamus.

        • Chris Bellomy says:

          Cannon, if she continues down the same path, seems likely to provide better fodder for mandamus or recusal well before jeopardy attaches, right?

          I think Marcy is likely right, that Smith just wants Cannon to stay out of Chutkan’s way when that time comes. Otherwise, there’s no special rush to get *this* case to trial, especially given the impossibility of it being wrapped up by the start of November.

        • Bernard R Cuzzillo says:

          It’s purpose is to educate the public, however small a fraction that is; just like the rest of the free press.

    • SteveBev says:

      “Court’s Order soliciting preliminary draft instructions….Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions”

      What is the reasonable observer •knowing all the relevant circumstances• to make of that?

      Those relevant circumstances include
      1. the conduct of the last hearing-
      for which Roger Parloff lengthy Lawfare report demonstrates her fixation on treating the PRA as a question of fact for the jury – a line of thought she initiated with her first question to the defence. This created the appearance she was leading them by the nose, to adopt a mechanism suggested by her which would result in termination of the case in their favor
      2. The specific terms of her order which followed-
      where she didn’t invite the parties to offer up their suggested jury instructions, but directed them to construct instructions which would effectuate this course thus re-inforcing the impression of leading the defence to their desired outcome
      3 The language quoted, when viewed against 1&2 appears to be not merely a contradiction, but instead a calculated misrepresentation in order to disguise and deflect from what took place.

      This is advocacy for the defence to adopt a strategic course under the colour of law but not founded on a proper good faith interpretation of applicable legal principles

      In this respect it mirrors how the litigation over the search warrant was initiated and conducted – where it was she who directed the minds of the defence towards procedural manoeuvres, that they did not think of and needed to be induced and guided by her to make motions to fit a process she concocted with a view to achieving a result favourable to them.

      • earlofhuntingdon says:

        Cannon was genuinely trying to do something. Better understanding the law or parties’ competing positions on it wasn’t it. But she is getting better at playing Pollyanna.

        • SteveBev says:

          Well she is definitely being devious and manipulative.

          But the question is whether she has created enough cover for herself that the higher judiciary, always inclined to be seen to be seeing the best in fellow members of the judiciary, and reluctant to acknowledge the perception of bias, will credit her excuses and give her bad faith a pass?

          And to ask that question is to know the answer.

        • OldTulsaDude says:

          The part I found chilling was where she wrote that this was a case of first impressions. What the hell does she mean by that?

        • Spencer Dawkins says:

          Is “case of first impressions” a recognized term of art in some field I’ve never encountered?

          Obviously, I’m mystified.

        • OldTulsaDude says:

          I think it’s possible what makes it first impression in her mind is that Trump was once president when that should have no bearing on these charges as I understand it.

        • earlofhuntingdon says:

          When viewed from the perspective of many litigants, a case is often of first impression for them.

          For Trump, on the other hand, who’s been in court possibly more than any other litigant in modern America, a case is rarely of first impression.

          Cannon is building up the mythology of this case to suit her own ends, and apparently Trump’s. Based on her reading of the PRA, she’s not much interested in accurate descriptions.

        • CPtight617 says:

          It isn’t. It’s a garden variety espionage case with a novel defendant (a former president).

          Cannon is just making excuses for her failure to move the case forward and to clap back at criticisms that she is incompetent by claiming “first impression.” District court judges don’t even decide cases of first impression. They establish facts and apply the law, not interpret it.

      • David Brooks says:

        Alternative explanation that bends way over to be fair: she is pointing the defense to their best possible argument so that when the inevitable verdict is guilty they will have no-one but themselves to blame.

        • SteveBev says:

          I don’t doubt that some members of 11 Cir will “bend way over to be fair” to Cannon

          However, that would involve turning a blind eye to Cannon bending the law to breaking point and beyond.

  8. Amy Bowersox says:

    “who greeted her blue verification badge Wednesday by posting an expletive…”

    I said to myself, “Yep, that sounds like Marcy!” :D

    I wonder if, in order to get rid of your visible blue checkmark, you have to actually subscribe to exTwitter? That would be a very Elon trick to pull…

    • Discontinued Barbie says:

      I find it interesting that you can’t read any of Marcy’s recent comments if you don’t log onto Xitter. Instead, I Google her name to see what her current daily comments are on Xitter.
      Albeit, there are several other people on Xitter that I can see their current comments, like RFK, Jr. Those aren’t blocked.
      Ever since that foriegn invader, with fake degrees took over the website, I refused to log on and improve his numbers.

      • Amy Bowersox says:

        Yeah, I’m done with exTwitter myself. It’s not a good place for an honest trans lady. I’ve moved to Bluesky, Threads, and Mastodon.

        [Welcome back to emptywheel. Please use the same username AND EMAIL ADDRESS each time you comment so that community members get to know you. You used a different email address on this comment which the moderation system interprets as a different identity. Pick an email address and stick with it as future comments with such mismatches may not clear for publication. Thanks. /~Rayne]

  9. DChom123 says:

    Has Judge Cannon been good at her job even if it is stalling or is she is in over her head and muddling through even if it is stalling?

    • EatenByGrues says:

      She seems to know what she’s doing, which is to try and engineer a dismissal of the case after a jury is empaneled, at which point Trump is scot free.

      Smith also knows what she is up to.

  10. earlofhuntingdon says:

    Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.

    That would appear to be Cannon preserving her Pollyannish persona. Nobody that credulous should be a federal judge. But it would be her position on appeal.

    • earlofhuntingdon says:

      Cannon’s golly-gee-whiz take fails the smell test. Her briefing assignment over jury questions displayed no indicia of truth or fact finding. It was one-sided in support of Trump’s posture in the case. Beyond that, she wholly misstated the law, something any competent clerk could have told her. But she still resented it when Smith pointed that out to her.

      • GeeSizzle says:

        This, combined with a few clerks finding reasons to leave recently, makes me think perhaps the competent ones don’t want to be associated with this shitshow, and perhaps pushed back with reason, only to be stonewalled by expertly disguised delay tactics camouflaged as legal arguments, however weak. I mean, we’ve been over this, Cannon’s credentials in terms of raw booksmarts/intelligence got her easy through law schools that I am pretty sure are quite competitive and legitimate. (What comes after that is another story) It just seems to me that all roads point to a certain bias in her that is clearly visible, but rather hard to pin down in any way that can get allow for her recusal, or speed up her slow rolling. All this points to malevolent competence. The best we can hope for with this case is that it doesn’t bollox the other trials. This was f-ed from the get go.

        • dopefish says:

          What’s really infuriating is that with any other judge and any other defendant and an Espionage Act indictment with this open-and-shut fact pattern, the defendant would be in jail pending trial and likely end up convicted and sentenced to dozens of years.

          Trump did huge damage to USA’s national security, but Cannon seems prepared to let him fucking walk. If he gets re-elected, he’ll likely do much more damage.

        • bmaz says:

          Really? How many criminal cases in the US have you been involved in? Where are you “Dope”?

        • dopefish says:

          Maybe “dozens” was a stretch, but people who remove hundreds of classified documents from authorized locations and take them home and store them improperly do get caught and get years-long sentences as part of their plea deals, even when they didn’t do anything else with the documents, and even if they fess up and show remorse after getting caught.

          Weldon Marshall pled guilty to one count and was sentenced to 41 months.

          Robert Burchum pled guilty and got 3 years and a $25,000 fine for knowingly removing “more than 300 classified files or documents, including more than 30 items marked Top Secret” from authorized locations.

          Kendra Kingsbury pled guilty to two counts and got almost 4 years for taking home approximately 386 classified documents over more than 12 years.

          Harold Martin pled guilty to one count, for taking large quantities of classified files home from work over a period of more than 20 years. He was sentenced to nine years.

          Now lets consider Trump. Privileged position at the apex of gov’t where he gets access to extremely sensitive stuff. Takes it home with him, stores it carelessly. On at least a couple of occasions he was recorded showing top secret documents to people with no clearances and no need-to-know. Gives NARA the runaround for months, then tries to frustrate a lawful subpoena to return them, and then tries to convince his lawyer to destroy some of the documents instead of returning them, and then tries to get his minions to delete incriminating security camera footage of these earlier acts. Doesn’t admit wrongdoing, shows no remorse. Rich and owns his own plane, which might make him a realistic flight risk if it weren’t for his Secret Service detail. And a plea deal for a lesser sentence doesn’t seem likely here.

  11. ThomasPaine says:

    Gerstein and Cheney comment in their article in Politico that: “Cannon’s ruling appears to leave Smith with the option of making a pretrial motion of his own to try to effectively shut down that defense by blocking Trump’s attorneys from raising such arguments about the Presidential Records Act in front of the jury.”

    Could Smith file this motion to preclude the PRA argument at trial and then appeal to the 11th Circuit if said motion is denied or ignored ? What options does the Government have to delay the swearing in of the jury until this issue is resolved satisfactorily for all parties by the Court ?

  12. beesbees says:

    bringing forward question from previous defunct post:

    Am I off base in thinking that Cannon’s reliance on 4-corners indictment sufficiency boilerplate to dismiss the mtd for now, without substantive discussion of either side’s legal arguments or specifically identifying what she sees as the outstanding relevant facts to be developed to apply the law, despite importance to the charges, extensive briefing (and the jury instruction philosophical goose chase)—is … weird? embarrassing? helps demonstrate some actual bias/prejudice?

    It feels like hiding the ball as to government’s burden.

    • EatenByGrues says:

      She’s clearly trying to defer something that should be decided in the pre-trial phase to the trial phase, when her eventual dismissal of the case* will toll double jeopardy, and Trump will then get to skate.

      And she’s not really being shy about it, at all.

      *Even if Smith gets a successful motion in limine to keep the Presidential Record Act out of the trial, rest assured that Cannon will find a way to scuttle the trial if it gets to a jury and she’s still on the bench. She just needs to deny the Government grounds to get her removed, which isn’t hard to do, unfortunately, given the widespread presumption among the federal judiciary that rogue judges are black swans.

  13. The Old Redneck says:

    Cannon’s order makes it clear that she knows exactly what she’s doing. She’s not going to take the bait and say anything which would permit an appeal. She is, as others have observed, going to steer this so double jeopardy attaches and allows Trump to walk.

    A motion in limine won’t work, because no appeal from an adverse ruling on that will be available. And there’s not enough to justify her recusal.

    This is a bitter pill, but it’s not a surprise.

    • Bob Roundhead says:

      For myself, this is the most infuriating part of her behavior .She knows what he took and tried to hide that he had. If any of the reporting is even close to accurate, much of it is truly national security Crown Jewels. Christ, he told some random Australian billionaire nuclear submarine secrets. In my opinion, her bias makes her a national security threat.

      • dopefish says:

        The indictment contains a table listing the 31 documents that Trump is charged with unauthorized possession of and failure to return. The approximate dates, classification markings and one-sentence descriptions of these documents makes it very clear they are “national defense” information. 21 of them were TOP SECRET, many of them also SPECIAL HANDLING or NOFORN. Some of them were SI (meaning communications intercepts) and some were HCS (meaning human intelligence). Some are marked TK (meaning intelligence from spy satellites). At least one is marked REL TO USA, FVEY (meaning it is signals intelligence collected by a “Five Eyes” ally of the United States and then shared with the US by that ally).

        These are not whimsical journal entries by Trump. The “personal records” sideshow is ludicrous.

        The documents Trump stole were closely-held military, nuclear, intelligence or diplomatic secrets of the United States. TOP SECRET only gets applied to information “the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security”. By stealing these documents and leaving them unattended in his bathroom, on his ballroom stage, etc. for months, Trump probably compromised sources, methods and programs that cost the USA tens or hundreds of millions of dollars. He might have compromised sources, methods or technical programs that are irreplaceable.

        • dopefish says:

          Trump took many boxes of documents out of the White House, not all of them classified. But he took many more classified documents than just the 31 he was charged with.

          If you’ve never read the indictment, it is worth reading in its entirety:

          Would Jack Smith have sought this indictment, with its extremely detailed description of Trump’s actions (to willfully retain these documents, hide them from NARA and his own lawyers, and frustrate the government’s efforts to recover them including trying to delete incriminating security camera footage) if he didn’t think he could prove them in court?

          Trump deserves a fair trial, and if convicted he ought to spend the rest of his life in jail. Any other defendant would.

        • zentropy_CHANGE-REQD says:

          Does double jeopardy preclude Smith from filing new charges regarding these other documents, assuming Cannon does tank this case?

          [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 username “zentropy” has been used previously with a different email and IP address, you must use a new more differentiated name. Thanks. /~Rayne]

        • EatenByGrues says:

          Probably not, though expect Trump to argue otherwise, both in court and in public opinion, were it to occur.

          Back in the 1980s, when the DOJ under Edwin Meese thought criminal prosecution of pornographers was an important public concern, it was not uncommon for a purported purveyor of pruriency who had many, many customers, to be indicted on a few charges and hauled into court, with a long prison sentence awaiting if convicted.

          If acquitted, the DOJ would then indict him for a few OTHER cases for which he had been caught offering obscenity–cases that were similar enough in their fact pattern that they could have been handled in the first trial by the first judge and jury, under the ordinary rules of judicial economy.

          But no… the DOJ wanted to have as many bites at the apple as they could, and they only had to win one to put a given smut-peddler behind bars for a very long time; whereas the defendant had to prevail in each case. Often times, this was only threatened, and not carried out, in an attempt to force a guilty plea.

          So no, an acquittal on one set of charges doesn’t cause double jeopardy to attach to all possible similar violations of the law, that weren’t covered by the original indictment. But lotsa folks consider serial prosecutions of this sort to be prosecutorial abuse.

          Not sure if there is anything the defense can do to prevent this. Of course, if a judge is in cahoots with the defense and engineers an acquittal, I would object far less to this tactic than I ordinarily would.

  14. Molly Pitcher says:

    Marcy, COMPLETELY of topic. We just tried Keogh’s Irish Potato Chips, Sour Cream and Shamrock flavor, and they are DELICIOUS !!!

  15. earlofhuntingdon says:

    Trump’s $175 million bond troubles came up a couple of days ago. But it took a day to figure out which company’s f/s the court wanted, as part of the documentation Trump failed to provide. It turned out to be the insurer’s, not Trump’s. But the problems with Trump’s bond seem incurable.

    The NYAG objected, as was her right, to the $175 million appeals bond Trump provided for several reasons. One was that the issuer was not subject to jurisdiction or registered to do business in NY. Insurers and bond issuers are also regulated businesses, so that can’t be fixed simply by filing a little paperwork overnight.

    A bigger problem is that the issuer failed to provide its most recent 2023 annual financial statement. That’s necessary because under NY rules, an issuer needs to maintain minimum free cash (and possibly net worth) requirements. An issuer cannot issue, for example, a single bond worth more than 10% of its free cash.

    Knight Specialty Insurance’s net worth is about $537 million, its free cash about $137 million. The maximum value of a single bond it could issue to a NY court would be less than $14 million. This bond is for $175 million, which makes it non-compliant. Trump couldn’t fix that even if he prepaid Knight the full amount of the bond.

    Given that Trump has only a few days to fix an unfixable problem with this issuer, the easiest way for him to fix this problem – given that the Trumps have bragged for days that he secured the bond with “cash and marketable securities” – is to prepay that amount to the court.

    Whose problem is this? Trump’s. The bond issuer’s job was to issue a bond that complied with applicable laws in the states in which it does business. That does not include NY. It apparently did its job, issued the bond, and earned its multi-million dollar fee. Trump’s job was to ensure the bond would comply with NY state rules, an entirely predictable problem any competent bond lawyer could have spelled out to him. Trump either didn’t ask what rules he had to comply with, or was trying to pull a fast one. Justice Engoron has scheduled a hearing to discuss all this in person. Sad.


    • Yankee in TX says:

      This is why Knight’s absence from the Treasury Listing is so telling. This was noted a few days ago by another poster. The Treasury Listing is where the surety big boys play and Knight’s absence meant that they were likely a bush league surety. The judge will not buy Knight’s argument that they don’t need to be licensed in NY and that as a result they don’t need to meet NY’s financial requirements. TFG will need to go back to the major sureties to find one willing (and able) to post a $175 million bond.

      • earlofhuntingdon says:

        The more relevant issue for Trump is simple: The issuer’s non-compliance means that NY courts are not obligated to treat Knight Specialty’s undertaking as sufficient. It might be better than a letter of credit from BCCI, but not by much.

        I suppose it’s possible that Trump knowingly ignored the requirements, and wants to throw sand in the gears, and maybe appeal the non-acceptance of the bond in order to elicit further delay. That would be a bad bet. Among other things, it risks the appeals court, on an expedited basis, taking Trump’s PR at his word, and inviting him to post a cash bond or face prompt enforcement of the judgment.

        • earlofhuntingdon says:

          Correction. The appeals court set the amount of the bond. The trial court reviews its adequacy.

    • SteveBev says:

      Notwithstanding the very pertinent points you make, that Trump et al failed to do any due diligence to ensure their out of State bondsman complied with NY legal requirements to post the bond, isn’t the bondsman in a bit of trouble? They completed and signed the undertaking, under the penalty of perjury, and asserted about themselves:
      “meeting the requirements to transact business and issue this undertaking in the State of New York”
      which is now revealed as patently false


      • earlofhuntingdon says:

        Yeah, to modify what I wrote, that last bit should have Knight Specialty, as well as Trump – who offered the bond as conforming to requirements – over a barrel. I’m gobsmacked anyone at Knight would put a corporate signature over anything like that, if they’re not registered and qualified to do business in NY.

        I can see why a predatory lender like Hankey would choose not to do business in the regulated environment of NY. But then why would that issue not come up in negotiations over the bond? Shirley, someone besides Trump and Hankey was involved on each side. The amount and nature of the undertaking seem well outside Knight’s ordinary course of business.

        The articles covering this also referred to Knight Specialty’s parent having considerable resources. That’s obfuscation. As any second-year law or business student could tell you, a parent company’s resources are ordinarily irrelevant. Only the resources of the subsidiary actually issuing the bond are relevant, something Trump and Hankey would know by heart. I don’t expect the hearing before Justice Engoron to go well.

      • earlofhuntingdon says:

        Unfortunately for Trump, the submission of an appeals bond in NY is to the trial court, not the appeals court. The trial court also resolves challenges to its adequacy, which are the responsibility, here, of the NYAG to raise.

        That means that Trump has to deal with a trial judge and plaintiff he has worked hard to piss off. As the monitor and financial compliance director remain in place at the Trump defendant entities (currently for about another three years), it will be hard for Trump to lie, his usual response, without immediate consequence.

        • dopefish says:

          When the appeals court lowered the amount of the bond to $175m, they also gave him another 10 days to get it sorted out and posted.

          Whether by design or ill chance, it seems Team Trump waited until right at the very end of that 10 days before trying to post the bond.
          Which then turned out to have these problems which aren’t so easy to cure.

          Engoron entered the judgement on Feb 16th, so Trump has now had about 7 weeks to try and get his appeals bond figured out. I guess we’ll see if Engoron is willing to give him any more leeway.

        • bmaz says:

          Wish there had been the opportunity to do a Trash Talk about how awesome the women’s final four is. Probably too “off topic” though I guess.

        • ExRacerX says:

          But I thought you had Trash Talk trademarked?

          Oh, that’s right, you just act like you do. Carry on.

        • Ginevra diBenci says:

          It has indeed been awesome. So much so that despite my team losing Friday by a single point (when they had every chance to win), I wouldn’t miss the final for the world.

    • Molly Pitcher says:

      This whole thing seems nuts to me. I Googled Knight Specialty days ago when ther name was first floated, and the citation said “not registered to work in NY or DC”. and I posted that here immediately. How did this thing get this far down the road without such an obvious requirement being mentioned in the press ?

      This has to be another ill-considered feint on Trump et al to try to slow things down.

  16. harpie says:


    10:23 AM ET
    4.7 Earthquake [epicenter in New Jersey]

    10:37 AM ET “an earthquake three days before a total eclipse of the sun would absolutely have taken out a whole ass dynasty back in the day” -writer Hayes Brown

    12:13 PM ET Representative Marjorie Taylor GREENE:

    God is sending America strong signs to tell us to repent.

    Earthquakes and eclipses and many more things to come.

    I pray that our country listens. [praying hands emoji]


    • person1597 says:

      Don’t forget the plague of locusts…
      “In a matter of months, they will dig their way out from underground, red eyes shining, deafening song filling the air. It will be a confluence of creatures the likes of which hasn’t been seen in the United States since Thomas Jefferson was president — and won’t happen again until 2245. It’s a rare emergence of insects some are referring to as cicadapocalypse.”

    • bird of passage says:

      Google: Tecumseh, his brother the Prophet, William Henry Harrison, New Madrid fault, eclipse of 1806, Tippecanoe. Cool story. (I’m not going to link to anything!)

    • earlofhuntingdon says:

      Marge is like the biblical critic who could see slivers in someone else’s little finger, but can’t see the 2x4s of her own behavior bashing her over the head. She’s a fraud.

      • NYsportsfanSufferer says:

        She also doesn’t know that solar eclipses are not random events. A fraud and dumb as rocks.

      • Shadowalker says:

        I wonder what she thought about superstorm Sandy, which came up the east coast, and then suddenly tracked westward and transferred both energy and structure to a cold front moving to the east 10 days before the election? Effectively shutting down both campaigns giving President Obama unfettered access for several news cycles. Candidate Romney had no choice but to stand down because no one was listening to him.

        • NYsportsfanSufferer says:

          I remember the GOP being so pissed at Christie for welcoming Obama when he visited NJ. What were either of them supposed to do? Ignore a natural disaster..

        • Shadowalker says:

          Christie was supposed to what Jindel did in the aftermath of the hurricane (the same storm Romney essentially mocked in his acceptance speech) that hit Louisiana. That storm scared the piss out of Christie. He’s lived in this state long enough to know hurricanes don’t track that way. It would have gone out to the Atlantic but it was blocked by a heat bubble that had moved off the continent and parked, it couldn’t go further north because it was blocked by the arctic systems. So it moved west and did something the NWS has never documented before, it transferred the kinetic energy to the cold system to the west, which caused them to reclassify the storm as subtropical and discontinue warnings.

        • NYsportsfanSufferer says:

          The tri-state area got a snow storm just days later. It was a wild sequence of weather for the area. We don’t get snow in early November and coming off a category 1 hurricane was insane.

        • Shadowalker says:

          The remnants of the eye passed over me. I remember the winds coming out of the north and later coming out of the south. Plus it was a cold wind, very very unusual for a hurricane (which it wasn’t by that time, but I had no way to know). I remember snow (flurries) the next day.

    • xyxyxyxy says:

      Just a few corrections to Marge since it centred right near Ivana: God is sending Trump strong signs to tell him to repent.
      Earthquakes and eclipses and many more things to come.
      I pray that Trump listens.

      Furthermore was the quake strong enough to break her casket open so that Jack could get his hands on the documents hidden in it and charge Trump in NJ?

    • earlofhuntingdon says:

      As asked above, by Peterr, is this a complex case of first impression? It doesn’t look like it.

      As Trump has argued at length, the PRA is a civil statute, with no direct criminal enforcement mechanism. It doesn’t apply in a prosecution under discrete criminal statutes. Even if it did, it’s much simpler to apply than either Cannon or Trump claim.

      This is hardly the first case to require working through CIPA’s requirements. Not hardly. Compliance with it in this case also seems relatively straightforward.

      As Marcy points out, Cannon has seen the relevant documents by now, and knows at least two things, notwithstanding her public position: which ones implicate national defense information, and that these records are presidential, not personal. (The latter also happens to be irrelevant to this case.) Trump’s willful refusal to return them seems much more important than which ones obviously contain NDI.

      • Rayne says:

        Ooh, nice, a First Amendment protest. Need to check local ordinances for noise restrictions and for permits.

        Would love a parody version of the song to avoid Fair Use conflicts. Perhaps Savage Librarian could draft new lyrics? LOL

  17. John Herbison says:

    Why do my comments routinely go to moderation? Today I have made three comments, each one on topic, respectful and substantive, but none of them currently appears.

    [Moderator’s note: Don’t leave comments like this in topic threads. Go to the Contact page and leave a question there. However this site doesn’t guarantee comments will automatically clear for publication; some trigger moderation algorithms we don’t control. You’ll simply have to wait for a human volunteer to clear them manually. /~Rayne]

  18. earlofhuntingdon says:

    This story by Pro Publica promises to make Trump’s forthcoming bond hearing before Justice Engoron even steamier.

    According to Pro Publica, Don Hankey approached Trump and offered to provide him an appeals bond in the full amount of the judgment, days before the appeals court took the unusual step of lowering the amount to about a third of the original judgment, in response to Trump’s claim that no one would issue a bond in the full amount.

    Trump did not inform the trial or appellate court of the offer. Presumably, he also avoided telling the monitor, who would have reported the development to Justice Engoron. One legal commentator observed that, “Any judge is going to be furious that this wasn’t corrected.”

    As the Pro Publica story was coming out, Don Hankey apparently revised his earlier version of events, by claiming that there were conditions to his full-amount offer, and that Trump’s team failed to pursue it. Trump came back to him later, only after the appeals court reduced the bond. But, yeah, Don Hankey hardly knows Donny Trump.


      • EatenByGrues says:

        That’s the problem with fascists.

        They are often incompetent, and that which they touch often turns to shit; though some are known to delay (albeit worsen) the ultimate reckoning by soldiering up and plundering their neighbors.

        But in the contest for power, administrative competence is often secondary to ruthlessness and guile.

        • xyxyxyxy says:

          Just a little more planning for J6, like getting the Russian consulate’s help, and they may have pulled it off. They had two months and lots of campaign dollars.

      • earlofhuntingdon says:

        Another YUGE story about Donny Trump. So many people are trying to sell DJT short, and the supply of shares available to borrow – so that you can sell it short – is so low compared to the demand, that the cost to borrow those shares has skyrocketed.

        Apparently, if you wanted to sell short a well-traded stock with high liquidity, you could borrow the stock you needed to do that for about 0.3 – 3.0% of the current market price for the stock. Contrast that with the current cost to borrow DJT shares: 750-900%. Lots of people must think DJT can go nowhere but down, down, down.


    • earlofhuntingdon says:

      The story nicely illustrates the lack of persuasiveness of critics like Alexander Cockburn, who contend that the NYAG did not need a bond in the full amount, because some of it was enough, what with the monitor in place, LOL.

      Trump apparently continues not to comply with his obligation to fully inform the monitor ahead of time of the many things he’s supposed to tell her, including whether he did so before supposedly pledging $175 million in cash and marketable securities to get this bond.

      Even if Trump fully secured the bond, it’s not clear that Knight Specialty has the staff and resources to turn that security interest into cash-in-hand to promptly pay the NYAG, if required to do so. It clearly hasn’t sufficient surplus cash to pay the bond without doing that. Nor is it clear that NY has sufficient personal and subject matter jurisdiction over it to resolve all issues related to this bond.

        • earlofhuntingdon says:

          It was kind of you to ask whether I meant Andrew Cockburn, Alexander’s younger brother, who has not yet shuffled off his mortal coil.

          To return your kindness – without your gentle snark – perhaps the noted “Stalinist” you intended to deride was their late father, Claud, though the label seems a tad reductionist.

  19. zscoreUSA says:

    Thank you for staying on Twitter to push back on disinformation. Just like a voter staying home is an implicit support of who gets elected, a vacuum in the information warfare space will open whatever disinformation narratives come next.

    ..said she remains on X mostly to monitor right-wing narratives and disinformation so she can push back on them.

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