[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
Don Hankey? The same one as in South Park, better known as Mr. Hankey, the Christmas Poo?
Another asshole who is begging to be saved because he got behind Trump.
John Eastman asks judge to pause disbarment, citing $3 million in ‘legal fees’ (msn.com)
Don't forget Mike Lindell crying about how everybody is out to ruin him. He's just another one who got behind Trump who is going to end up in ruin.
"Although Trump said he knew some really good accountants who could draw up some *great* financials, his attorney reminded him of the pains and penalties for perjury, by smacking him upside the head and telling him to shut his fool mouth."
Chris Hayes explains Cannon’s response. Smith wanted her to decide, one way or another whether the Presidential Record Act is a valid defense. She refused. 11th Circuit, here we come. She more or less dared him.
Yep. Maha quoted the last page of Cannon's 2-page order:
“As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.”
She's willing to die on this hill. She's the judge of Trump's dreams, willing to set aside the law to rule in Trump's favor. She's decided to use her power to intervene on Trump's behalf. Smith called it for what it is, couched in legal terms. She's looking for any set of instructions she could give a jury to guarantee acquittal. Without suggesting that Cannon is out to rig the trial, Smith called her out for the result that might result – acquittal based on the judge's flawed reading ot the PRA. Smith demanded she rule in advance so that Smith could appeal before the trial and she told Smith to get stuffed.
Cannon is on thin ice, IMO. Cannon's instructions were her play to enroll Smith in co-authoring the instructions. He refused to play. She did not think he could/would respond by calling the assignment flawed and he didn't do it. Cannon probably expected Smith would protest the premise of the order in a footnote which she would not cite when she selectively used Smith's text to write the jury instructions after the trial had begun and after it was too late.
I'm with the majority who expect Smith will take it upstairs. Exactly what remedy Smith will request is a cliff-hanger. I think Smith is a lawyer of impeccable integrity. Entirely my opinion, but he's not interested in judge-shopping, which conservatives do openly. So Smith has to resolve an ethical conflict. He doesn't want to rid himself of a judge who doesn't rule in Smiths favor very often. But Smith seems to see that Cannon intends to throw the trial through the PRA despite the clear letter, intent, and history of the PRA. A fair trial with Cannon on the bench is not possible.
Cannon is either genuinely dim or she has reason to believe she will get fat rewards if she can dismiss the case with double jeopardy attached. Of course, both could be true.
I don't trust Judge "Luce" Cannon one bit.
She's been looking for ways to goad Smith into doing something unprofessional. But unlike her, Smith is very smart, and doesn't take the bait.
She's been looking for ways to delay this trial, try to make this case against tRUMP seem ridiculous, or find a way for it to end up as a mistrial. Especially, if "double-jeopardy" is involved – which prevents tRUMP from facing a retrial.
Judge Cannon's trying to get this case shut down for a reason. Whatever reason! Some reason!! ANY reason!!!
And tRUMP's always on the damned TV! Spouting bullshit and lies every time he inhales and his lips move,
JAYZOOS!!!
ENOUGH!!!!!
It's been too long since the time when tRUMP was background noise in our lives – if that.
I WANT tRUMP SILENCE!!!
I NEVER WANT TO LOOK AT OR LISTEN TO THAT HORRIBLE VOICE – FROM ONE OF THE WORST AMERICANS (HUMANS) EVER AGAIN!!!
Man, it seems like centuries ago when you'd only hear his name for some self-aggrandizing – and usually, stupid – thing he was doing on the real estate market.
Or where you might seemhis name on Page 6 of the NY Post, and find out about his running around town with some pretty young thing not-his-wife.
I just hope I live long enough to bury that MFer (not that I'd kill him – a natural death would be just fine by me!).
Imagine: tRUMP dead. No more lies. No more TRUMPSHIT!
AH, JUST GOLDEN SILENCE!
I won't believe it at first, figuring he faked his death for some crazy assed reason.
But eventually, I'd come to realize that tRUMP is truly dead and gone.
And America gets a fresh start without that cancerous plague trying to rule our country like a king.
When that time comes, I'll never have to look at, or hear, tRUMP again!
YAY!!!!!
But if tRUMP and his MAGAts win, I can see my own version of Smith's "1984" rat weakness being used against me: I'll be tied to a bed, unable to move – and the torturer playing tRUMP's worst speeches at 120 decibels – until my brain turns to goo, and pours out of my ears.
He CAN'T win!!!
Susan Lynn Psychic Medium (look her up), says that Trump is going to fall, because of many blows. L Jean Carroll was the first one. Judge Merchan is next. Aileen Cannon will be history. It's over for him. And for any Republican attached to Trump. I heard that Jack Smith's trial in The Hague took ten years. He's got a lot more fish to fry after Trump. Stay tuned.
Yeah, yeah, I know:
They're ALL his worst speeches!!!!!
After Jonathan Pollard was convicted of causing hundreds and hundreds of boxes of classified documents to be delivered to Israel he of course went to prison. The reason he served his entire sentence in spite of Israel's importuning was that George Tennant told Bill Clinton that he would resign if Pollard was released early. The head of the CIA has a constituency.
"“We are ecstatic to be home at last after 35 years,” Pollard said as he was greeted at Israel’s international airport by Prime Minister Benjamin Netanyahu. The Israeli leader jubilantly presented Pollard and his wife Esther with Israeli ID cards, granting them citizenship.
“You’re home,” Netanyahu said, reciting a Hebrew blessing of thanks. “What a moment. What a moment.”
Pollard arrived on a private plane provided by American casino magnate Sheldon Adelson, a billionaire supporter of both Netanyahu and President Donald Trump."
That is a very compelling and relevant chapter of history to revisit, thanks for bringing it up. Just now reading about the consistent high level pressure put on Obama to commute Pollard's sentence and Biden's (as VP) strong objection to doing so.
Has not Judge Cannon figured out that Trump operates on the let no good deed go unpunished principle? She is in a serious lose-lose situation and needs a serious lesson in CYOA.
Maybe TFG has promised her Justice Thomas' seat, and maybe she's greedy enough and dumb enough to believe that cr*p.
Note that Cannon is one judge Trump hasn't subjected to attacks and threats. That's one way we know she's working for him.
Dakota Adams, son of Oath Keepers founder Steward Rhodes is running for state legislator in Montana – as a Democrat. He's young, brilliant, articulate, grew up inside the beast, and is a powerful speaker. "The Republican party is an unsavable disaster".
I know – it's Friday night and normal people have better things to do. But I'm pondering the surety bond and developments today. Judge Engoron set a hearing for the 22nd on the bond after Letitia James cried foul. It appears the company does not meet the requirements of reserves that NY requires. That's a serious problem – after NY cut Trump a huge break by reducing the bond by well over half for Trump to "meet" the requirements with a shady guarantee. IMO, if Trump can't shore up his offer to 100% of what NY requires, the courts won't bail Trump out a second time.
The structure of the bond deal reeks of Trump overruling his lawyers. If I was Trump's lawyer, getting the bond reduced from 465 Mil to 175 Mil would have impressed the hell out of me. It would not have happened for any other client and my recommendation would have been to embrace that deal and not allow ANYTHING to jeopardize it. But the deal is teetering because Trump struck a deal with a company that is too small, which somebody surely told DJT. The bond was submitted without the financials and (this is odd) without listing an attorney-in-fact. Did Trump's lawyer know of fraud and decline to put his name on it? It should become a significant point to Trump's lawyers that they need plausible deniability because disbarment can adversely affect your future income.
Trump has been antagonizing Judge Engoron for months. I don't think the judge has handed down any bad judgements to be vindictive, but he's got no reason at all to cut Trump a break. If the offer by Trump/Knight is deficient in a minor (correctable) way, Engoron will give Trump a short time to fix it. If the flaw is major, I think Engoron will declare Trump is in default – he blew through the ten-day window to offer a real surety bond and he failed to do so. No further extensions – James can proceed with collecting the 465 million.
Trump would have protected his NY holdings for almost six months by meeting the bond. James will be able to dismantle huge chunks of Trump's empire. Is Trump playing games to play the martyr leading up to the election? I don't think so. Trump's ego isn't up to letting a black woman "take" Trump Tower. I'm guessing Trump has cash flow problems. Part of this is the cost of lawyers – part is the cost of running a campaign Trump HAS to win to stay out of jail. In my opinion, both parties have an election machine that makes money from campaigns. The machines run on money. Trump has to pay that machine or, at best, it won't run. At worst, it will turn on Trump.
Last thought: Trump is talking about LOTS of debates with Biden. The candidate who is being beaten is the one who wants to debate the leader. If there is strategy here (always a question with Trump) either the Trump campaign knows the polls are wrong OR Trump anticipates he won't be able to keep up with a shift toward Biden he's certain will happen. But there's no reason to demand debates if you are way ahead.
The shakiness of the bond is analogous to the bottom-feeder lawyers Trump employs. IOW, only the worst quality lenders or lawyers will work for him. The grade Z creditor – plus Trump's takeover / hoovering up of the RNC and its resources – are signs of how desperate he is for cash, and how anybody with better options is staying as far away as possible.