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Yesterday, as is so often the case these days, there was a lot of Donald Trump legal news. Here's the rundown:
The Defendants seek to dismiss the indictment on as-applied and facial First Amendment grounds. U. S. Const. Amend. I; see also Ga. Const., Art. I, Sec. I, Par. V & IX. They argue this prosecution violates the First Amendment's protections of political speech and activity, freedom of association, and the right to petition Congress as-applied to their alleged conduct, and further contend that the indicted charges are overbroad. After considering the extensive briefing, the argument of counsel, and the indictment, the Court finds these vital constitutional protections do not reach the actions and statements alleged by the State. Nor do the statutes themselves facially violate the First Amendment. The Defendants' motions are therefore denied.And here is the relevant passage from the ruling by Judge Aileen Cannon, in which she rejects the notion that the Florida case should be dismissed based on the Presidential Records Act (PRA):
Fully advised in the premises, the Motion is DENIED [ECF No. 327]. Bound by the four corners of the Superseding Indictment, Counts 1 through 32 track the statutory language and essential elements of the charged portion of 18 U.S.C. § 793(e) [ECF No. 85 p. 32]. See 18 U.S.C. § 793(e) (making it illegal to "hav[e] unauthorized possession of . . . any document . . . relating to the national defense . . . and willfully retain[] the same and fail[] to deliver it to the officer or employee of the United States entitled to receive it"). Those same counts make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense. As for the remaining counts against Defendant Trump (Counts 33—38, 40—41), they too track the applicable statutory language and essential elements of the charged crimes [ECF No. 85]; 18 U.S.C. §§ 1001, 1512, 1519. More generally, the Superseding Indictment specifies the nature of the accusations against Defendant Trump in a lengthy speaking indictment with embedded excerpts from investigative interviews, photographs, and other content. 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.Sorry about all the legal language. If you managed to plow through it all, you learned that McAfee's ruling dispenses with the matter once and for all, while Cannon's (once again) only puts the question aside temporarily. That "the Presidential Records Act does not provide a pre-trial basis to dismiss" does not preclude the possibility that the PRA provides a basis for dismissal during the trial itself. In fact, the presence of that clause somewhat implies that this is something that could, and probably should, be brought up during trial. After all, if Trump's PRA argument simply doesn't fly, then there's no reason to say, in effect, "this doesn't fly... right now."
I've dug into Cannon's recent "rulings," which aren't really rulings at all, and the consequences are more severe than is being reported.A.R. sent that in before Cannon issued the latest ruling, and followed up with an addendum yesterday afternoon:
First, let's orient everyone as to where we are. What prompted these bizarre orders are several motions to dismiss that Donald Trump's counsel has filed. So far, Cannon has not ruled on most of these. One of those motions to dismiss claims that Trump cannot be prosecuted under the Espionage Act because the Presidential Records Act is a complete defense to that charge as it allows presidents to determine for themselves what records are personal and what are not. The highly classified documents that Trump took and refused to return are, therefore, "personal" records because he wants them for himself. An element of the crime of "willful retention" under the Espionage Act is "unauthorized possession" and Trump claims the PRA nullifies this element of the charge.
As readers may recall, Cannon expressed some skepticism about one motion to dismiss based on claims that the Espionage Act is unconstitutionally "vague" and ultimately denied this motion. But she denied it without prejudice, which means she is explicitly allowing Trump to revisit this claim later. And in that context, she also issued this bizarre order for each side to submit proposed jury instructions by April 2 based on the two scenarios that (V) laid out on Thursday: (1) whether the PRA allows the president to decide what's personal and what's not,or (2) whether the jury should review the records and determine what's personal.
Everyone agrees that either of these scenarios is in direct conflict with the law. But what has not been reported on much are the potential procedural problems with that order, which Special Counsel Jack Smith's team is teeing up in their filing in response to the order. First, jury instructions are typically not decided on by the judge until after the jury has been empaneled and sworn. Once the jury is sworn, jeopardy attaches. You see where I'm going with this. If the judge issues these erroneous instructions to the jury and Trump is acquitted as a result, there's nothing the federal prosecutors can do. He skates. Not only that, but Cannon can issue a directed verdict before the case even goes to the jury acquitting Trump based on those same instructions. Again, there's no appeal from an acquittal and double jeopardy prevents Trump from being tried again on those charges. (Contrast that with a directed verdict after a jury conviction, which CAN be appealed.)
So, here's what Smith and his team are setting up. They are telling Cannon that she must decide these issues now, or they will petition the Eleventh Circuit for a writ of mandamus. Normally, only final rulings are appealable, and this is not one, but a prosecutor can request appellate review using a writ for "extraordinary" relief. And the situation here certainly seems to meet that criteria. The showing required is: (1) clear error; (2) lack of adequate, alternate remedy and (3) irreparable injury. As Roger Parloff points out in this piece written for Lawfare, there are very few examples of this being tried, but most prosecutors who DID try were successful.
There are parallels to the situation Smith is facing—the Third Circuit case Parloff cites is an example where the Court found that "if jury deliberations guided by the erroneous instruction end in an acquittal, the injury to the government will be irremediable." Also: "We find that the adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus." While those cases aren't from the Eleventh Circuit, the standard is the same. And the Eleventh Circuit has some experience with having to "correct" Cannon for getting the law completely wrong and issuing crazy orders as a result—having done so twice—so they could already be primed to issue this type of extraordinary relief.
It has been clear for a while that not only is Cannon slow-walking this case and indulging every delay tactic that Trump's team brings, but she is also deliberately avoiding making any rulings that Smith can appeal. And now it seems that she is setting up a Trump acquittal through the use of erroneous jury instructions. So, at this point, Smith has no choice but to get the Eleventh Circuit involved and at the same time, to try to get her removed from the case. If Smith is forced to take a writ and the Eleventh Circuit accepts it, I don't see how they leave her on the case. And if they act with some alacrity, I wouldn't be surprised if the new judge appointed to the case fast-tracked this thing since there are really no facts in dispute and the law is very clear and not at all complicated. That could add an entirely new dimension to the upcoming election if this case goes to trial, say, this summer and the Jan. 6 criminal trial begins in the Fall.
Just now we got a ruling denying Trump's motion to dismiss based on the PRA. But Cannon's order also seemed to confirm Smith's worst fears in that she emphasized that the PRA doesn't justify a "pre-trial" dismissal since Smith has sufficiently alleged an offense under the Espionage Act. But she pointedly left the door open for a defense at trial under the PRA that could be reflected in the jury instructions. She defended her request for competing jury instructions under her misinterpretation of the PRA as an attempt "to better understand the parties' competing positions and the questions to be submitted to the jury in this complex case of first impression."Thanks, A.R.! And note that we wrote our assessment of Cannon's new ruling before reading what A.R. sent in. So, our non-expert impression and A.R.'s expert impression were very nearly the same. And speaking of experts, former Trump lawyer Ty Cobb has not yet commented on yesterday's news, as far as we know, but he did appear on CNN earlier this week to share his view that Cannon is not merely incompetent, but that she's in the bag for Trump, and that therefore Jack Smith has no choice but to go to the Eleventh Circuit to try to get her removed from the case.
This won't assuage Smith. She's holding this Sword of Damocles over the government's head that she can deploy at a time most likely to kill the government's case. I'm guessing Smith will still be seriously contemplating taking a writ to the Eleventh Circuit. Her behavior won't get any better.
That's the latest. Who knows what the weekend will bring. (Z)