[Update: I’m just hearing that No Labels has abandoned its plan to run a presidential ticket in 2024. After Joe Lieberman died last week I suspected the plan would be called off.]
Some of the talking heads on MSNBC last night warned us that Judge Cannon appears to be preparing to accept some or all of Trump’s argument that he was entitled to keep whatever documents he wanted under the Presidential Records Act. He was not, and the PRA says no such thing, but neither Trump nor Cannon seem to be big on the reading comprenehsion thing. And if Cannon waits until jury selection has begun and then dismsses the case, double jeopardy is attached and Trump cannot be tried again in the documents case. Liz Dye at Above the Law writes,
The prosecution demands speedy resolution of the matter to provide it “the opportunity to consider appellate review well before jeopardy attaches.”
Indeed this has been the nightmare scenario put forth by former federal prosecutor Mitchell Epner on (my show) Law and Chaos and by Lawfare’s Roger Parloff: Judge Cannon will do something outrageous to throw the case, but she’ll do it after jeopardy has attached, when it’s too late for the government to do anything about it.
Jack Smith, no fool, sees this coming. Here is the conclusion from his Tuesday filing, page 23:
For the reasons set forth above and in the Government’s opposition to Trump’s motion to dismiss based upon the PRA, the Court should reject the legal premise that the PRA’s distinction between personal and presidential records has any bearing on the element of unauthorized possession under Section 793(e). As such, it should deny Trump’s pending motion to dismiss and adopt preliminary jury instructions as proposed by the Government above. If, however, the Court does not reject that erroneous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review.
Or, “You ain’t gettin’ away with this, lady. Don’t even try.” See also:
And see also Matt Naham at Law & Crime.
Smith’s filing doesn’t threaten to have Cannon removed from the case, but in two places it drops big hints that he’s ready to file a writ of mandamus with the appeals court that would force her to correct her errors before moving on to trial.
I also want to say that the photos of Jack Smith always remind me of a quote about Ulysses Grant: “He habitually wears an expression as if he had determined to drive his head through a brick wall, and was about to do it.”
Update: Cannon dismissed Trump’s motion to dismiss the case, but she did so leaving open the possibility of dismissing it later. after double jeopardy is attached. MSNBC:
In a court filing ahead of Cannon’s ruling, Smith said that he wanted her to clarify her position on the instructions, so that he could appeal her before trial if she adhered to that fringe view, which he noted rested on a flawed legal premise.
But in her Thursday order, Cannon cast Smith’s request as outlandish, deeming it “unprecedented and unjust.” That might be a fair characterization had he made it out of thin air. But he made it in response to her strange previous order, in which she requested proposed jury instructions rooted in what one might call an “unprecedented and unjust” legal view. So without that context for how we arrived at this point, the judge’s characterization is misleading.
Cannon ended her order by stating, “As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.”
Jack Smith has to take further action before the trial begins. Stay tuned.
In other news: A couple of days ago Trump coughed up a $175M appeal bond in the New York fraud case. What you may not have heard is that the bond was bounced back to Trump for correction. Law & Crime reports:
A review of the New York County Supreme Court docket on Wednesday shows that paperwork for former President Donald Trump‘s newly-secured bond of $175 million was temporarily rejected and “returned for correction.”
The cause for the rejection, according to the New York County Supreme Court website, is because the requisite paperwork lacked a current financial statement. …
… It is also missing the name of his attorney-in-fact. Trump will have a chance to resubmit his request….
… As Law&Crime previously reported, Trump secured a bond of $175 million thanks to Knight Insurance Company of California. Owner Don Hankey was effusive in his praise of Trump after the bond secured, calling himself a “supporter.” But Hankey was less clear about whether Trump used bonds as collateral for the final amount.
Well, okay. I wasn’t sure how big a deal any of that was. But now CBS News is reporting that the bond may not be valid.
When former President Donald Trump posted a $175 million bond in New York on Monday, it appeared that he had evaded a financial crisis. He had paused enforcement of the more than $460 million judgment against him following a civil fraud trial, while his appeal is pending.
But the surety bond was missing vital information typically included in those filings, experts say. These standard elements include documents related to power of attorney for the bond provider, Knight Specialty Insurance Company, a financial statement from the company and a certificate of solvency from the Department of Financial Services.
“There seem to be serious issues,” said Bruce H. Lederman, an attorney who has filed many bonds in New York, including for a real estate developer challenging a judgment. Lederman said he was struck by “glaring errors” in the bond.
“In all the years I’ve been doing this, you always have to have a certificate from the Department of Financial Services saying that you’re licensed to issue a surety bond,” he said, referring to the missing certificate of solvency under Section 1111 of New York Insurance Law. …
…Adam Pollock, a former assistant attorney general in New York, said, “This bond is deficient for a number of reasons.”
“Including that the company doesn’t appear to be licensed in New York and doesn’t appear to have enough capital to make this undertaking,” Pollock said.”
You can read the whole thing for all the pros and cons. But it does seem that there’s a chance the bond could be rejected. On March 25 the appeals court gave Trump ten days to come up with the smaller bond, so if this bond is rejected he’ll either have to be given another extension, or he’s out of luck.
— mike luckovich (@mluckovichajc) April 3, 2024