Re: Cannon: 11th circuit already said Trump lacked a personal or possessory interest in the records

[bigtree]

Roger Parloff @rparloff
Judge Cannon is asking the parties to "engage with" these two proposed jury instructions. Both are disturbing; the second comes close to a directed verdict of acquittal.

Bradley P. Moss @BradMossEsq
Thx to @emptywheel for reminding me that the 11th circuit already said Trump lacked a personal or possessory interest in the records. DOJ’s response to this order from Cannon will be … interesting.



Ben Meiselas @meiselasb
Judge Cannon just issued an order requesting the parties “engage” with two hypothetical scenarios for potential jury instructions regarding the espionage act as applied to Trump’s willful retention of national defense information. Both hypotheticals are legally flawed and assume Donald Trump, as a former president, has special powers to willfully retain national defense info (he does not). It’s unclear what she even means by having the parties “engage with” these hypotheticals. Both hypotheticals are egregious and the second one is extra egregious since she wants to the government to accept as true that Trump has the sole ability to designate national defense information as his personal property and somehow instruct a hypothetical future jury on this. As I read it, she is asking Jack Smith to “engage” with two scenarios that both violate the law which he should not do. Is she setting a trap that if he responds to the scenarios she than tries to act like the government has accepted both these legally flawed scenarios as true or allowed?It’s such an unusual and unprecedentedly bizarre and dangerous order. But if I am Jack Smith I am thinking if this constitutes a “final order” for purposes of an interlocutory appeal and telling the 11th Circuit that both of these scenarios violates clearly established law and so an appeal is needs since the government can’t be compelled by a judge to “engage” with situations that violate the law.

Bradley P. Moss @BradMossEsq
This second scenario is legally insane. If that were the case, then just grant Trump’s motion to dismiss on PRA grounds so DOJ bring it to the 11th circuit for a quick reversal.

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[PCIntern]

1. K and R but nothing ever seems

to fucking matter.

[Think. Again.]

3. I know it seems hopeless...

...but we must keep holding on...

[bigtree]

5. it's like I tell my sons

...there will always be bad people doing bad things.

Good people doing good things is usually the exception. As my friend, Guy Washington, used to say,"Good always leaves, but bad comes to stay."

[gab13by13]

2. Curious to see if any legal beagles here defend Cannon?

[Happy Hoosier]

4. I'm with you.... this has already been decided.

The 11th has already said that Trump did not have a personal interest in these documents. They've already rejected this argument.

If the sitting President can simply decide that ANY document is his personal property, then the PRA is meaningless.

This argument is insane, and already rejected.

[Fiendish Thingy]

6. Cannon is trying to give Trump limited immunity in the Docs case

In a way that protects him from double jeopardy.

I don’t think Smith will have any trouble responding to this, the trouble will start when Cannon responds to his response.

[ancianita]

21. She's also trying to forget or ignore what the 11th Circuit has already written.

I don’t think Smith will have any trouble responding to this, the trouble will start when Cannon responds to his response.

Right on.

If Smith responds to the Order before the Thursday hearing (which I don't believe he has to do, but knowing him, he'd be quick with a response), I wonder if Cannon's not obligated to respond to his response on that date, since it's about jury matters. I'm probably missing something...

[Raven]

7. In both its timing and content, this seems like a very desperate and risky move by Cannon

and her hidden coaches.

[dweller]

8. I am not a lawyer but this appears to me

An attempt by a middling law school instructor assigning trick exam questions hoping to catch and fail a student.

She’s over her head



✌🏻

[ScratchCat]

9. Read it again

Its even worse.

She is claiming that the jurors get to review any document that was taken from Trump and form their own opinion as to whether it fits under the PRA.

[Attilatheblond]

12. So, not only is she trying to pawn off HER responsibility to make decisions, setting up Gray Mailing the government

for having the audacity to enforce the law? Admission: Not a lawyer or law clerk and seldom stay at a Holiday Inn. But to my old eyes, that seems to be what she is doing. Am I reading this right?

[Harker]

13. Yes, a threat to expose the entire collected secret documents to the entire jury. n/t

[iluvtennis]

22. It's ludicrous. So every jury member has to get a TS clearance.

This judge is incompetent.

[Joinfortmill]

10. She needs to go

[intheozone]

11. Did she take the (b) language

directly from the Trump attorneys' motion to dismiss. Sure seems like she did. I noticed there is no citation to specific PRA language in the entire paragraph. What a joke! She need to be removed!

[Kid Berwyn]

20. Stephen Miller, Fiend of the Court

Jack Smith rips Trump ally's far-fetched claim in classified documents case

The "America First" legal filing supporting Trump's far-fetched claim is "without merit," the special counsel told Judge Aileen Cannon.

By Jordan Rubin
MSNBC, March 14, 2024

EXCERPT...

By way of background, Trump claims that he had designated sensitive government documents he’s charged with unlawfully retaining as “personal records” under the PRA. From that dubious premise, he says his retention of those records couldn’t have been “unauthorized” under a criminal statute he’s charged with violating. As part of his far-fetched argument, he says it was wrong for the National Archives and Records Administration, which handles presidential records, to even refer the matter to the Justice Department in what ultimately led to Trump’s indictment.

The "America First" legal group picks up on the referral point. The amicus brief questioned a federal agency’s ability to make criminal referrals without specific authorization to do so. It argued that NARA lacked such authorization and so the indictment must be dismissed. But all of those contentions, Smith wrote, “are wrong.”

The special counsel explained that no such authorization is required for criminal referrals and that under the Miller group’s theory, NARA couldn’t, for example, report if someone illegally brought a firearm into a NARA facility. Smith added that even if such authorization were required, NARA had it, and that its officials “had reason to believe that classified information may have been lost, possibly compromised, or disclosed to an unauthorized person, and further had reason to believe that a criminal violation may have occurred.”

SOURCE: https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-classified-documents-stephen-miller-brief-rcna143363

[ancianita]

14. It's as if Cannon doesn't read or want to remember what the 11th Circuit already WROTE. They must remove her as unfit

for this case, if nothing else.

[Wednesdays]

15. IANAL, but can a dismissal of charges be appealed by the prosecutor? (To the 11th Circuit)

That question was posed here on DU some time ago, but I didn't see anyone answer definitively. AFAIK, I've never heard of such a thing.

[limbicnuminousity]

16. Wonder if she's trying to get herself booted or if she's really that dumb.

If he were charged with illegal possession of ricin would the jurors each have to sample ricin in order to verify that it's a toxin?

Or does she plan for the jury pool to consist only of people who have been granted top security clearance? That might be fun, seriously doubt anyone qualified for clearance is going to kindly regard someone being so cavalier with state secrets.

Or did she really just say: "I'm out of my depth. What do you guys think?"

[LiberalFighter]

17. There need to be more manholes in her area.

[Ligyron]

18. Now she's done it ...

[johnnyfins]

19. This just stinks, like TSF's legal team came up

With it and basically sent the script and pre written order to Cannon

[barbtries]

23. maybe this will be the trigger

to get Jack Smith to go to the 11th circuit and get her thrown off the case. she is so obviously in the bag for trump. scandalous