This was a good week for the Department of Justice. It was a bad week for Trump and the seditionists.
1. Trump’s Special Master Lawsuit Bites the Dust
First, a procedural overview:
- August 8: The FBI, pursuant to a search warrant, searched Mar-a-Lago and seized boxes of government documents including documents marked classified.
- August 22: (Two weeks later) Trump brought a lawsuit in a federal district court in Florida asking for a special master to inspect the documents seized from his residence to make sure nothing privileged was given to the DOJ.
- September 5: Judge Cannon granted Trump’s motion and appointed a special master. She also ordered the FBI to cease using the seized documents as part of its criminal investigation until the special master review was completed.
- September 8: The DOJ filed a notice of appeal with the 11th Circuit Court of Appeals.
- September 16: The DOJ filed a motion with the 11th Circuit asking that the 100 documents marked classified be excluded from Cannon’s order while the appeal pended (so that they could continue the investigation into those documents).
- September 21: The DOJ won on the motion.
Note: This means the criminal investigation into the handling of classified documents was delayed only a few weeks. That said, the DOJ most likely needs all the documents before it can complete the investigation and indict.
- September 30: The DOJ filed a motion asking that the appellate review be expedited.
- October 5: The DOJ won on that motion as well.
- October 11: Trump asked the Supreme Court to intervene on his behalf.
- October 13: The Supreme Court refused to intervene.
- November 22: Oral arguments did not appear to go well for Trump.
- December 1: The 11th Circuit Court of Appeal issued a decision.
The decision is here. If you want to see how much fun it can be to read an appellate court decision, let’s get started. 🤓I never liked suspense so I skipped ahead and read the ending first:
Because Judge Cannon improperly exercised jurisdiction, she never had the authority to enter any orders at all. (Jurisdiction = power of the court.) Equitable jurisdiction is allowable only in extraordinary circumstances not shown here.
Law v. Equity explainer: The Constitution gives federal courts jurisdiction in law and equity. Law is what’s on the books. Equity is fairness. In the 18th century, there were courts of equity and courts of law. If your neighbor broke a law that cause you injury, you went to a court of law. But there weren’t many local laws, so if something was unfair (like your neighbor was keeping you up all night with loud music) you went to a court of equity. In our system, federal courts are both courts of law and courts of equity.
If federal law enforcement does something really bad and there is no remedy at law, people can go to federal court and ask for an equitable remedy.
Because the court never had jurisdiction, the case will soon go poof. Vaporized. Yes, Trump will have a brief window for appeal, but he’ll lose that, too. (If you have doubts check out the items in red in the timeline.) Plus the Supreme Court already ruled against him when he tried to stop the National Archives from sending presidential records to the Congressional Select Committee by invoking executive privilege, and this case is even weaker. Moreover, an appeal to the Supreme Court will not help him unless he gets an injunction to stop the DOJ investigation as the appeal is pending, otherwise, the investigation will probably be complete before the Supreme Court hears the case.
The court said:
The word “lawfully” gives us a clue about where this is going: If the search was lawful, why would Trump need an equitable remedy?
After summarizing Trump’s disputes with the government, the court says:
The phrase: “not to be expanded by judicial degree” is appellate justice snark.
The court noted that if Judge Cannon could take jurisdiction in a case like this, federal courts would have to allow every person who is the subject of a search to have a special master:
Defense lawyers everywhere are saying, “Darn!” Option 2 would have been a boon to defense lawyers everywhere, who would have had one more thing they could do for their clients.
The decision next recounts the facts of the case. This will be fun because when you win on appeal, it means the court basically accepted your version of the facts, which means the “facts” given in this decision is the version put forward by the DOJ, which means Trump will look really bad. (Add that to the list of reasons it was stupid for Trump to bring this case.)
Quick summary of the facts as recounted here: During the year the government tried to get the documents back, Trump never tried to claim executive privilege or assert that he’d declassified documents. He came up with those arguments later (which indicates, of course, that they are lies.) Instead, throughout the year, Trump acted as it was up to him to decide what to do with presidential records, including classified documents, generated during his term in office. He, therefore, played games with the government. He gave back some documents and said he didn’t have anymore. The FBI then “developed evidence” that he had additional documents. Trump gave more back and said he didn’t have any other documents. The government “developed evidence” that he had more. Then Trump had one of his lawyers sign an affidavit saying he had no more documents. The government executed a search warrant, and found a hoard of top-secret classified documents, and here we are.
The court next marched through the four factors that have to be met before a district court can assume equitable jurisdiction in a case like this (The “Richey Test”):
- whether the government displayed a “callous disregard” for the plaintiff’s constitutional rights;
- whether the plaintiff has an individual interest in and need for the material whose return he seeks;
- whether the plaintiff would be irreparably injured by denial of the return of the property; and
- whether the plaintiff has an adequate remedy at law for the redress of his grievance.
For jurisdiction to be proper, all four requirements must be met. In fact, none were met. The court’s responses in red:
- whether the government displayed a “callous disregard” for the plaintiff’s constitutional rights; No: The search was lawful. Even Judge Cannon found that Trump’s rights had not been violated.
- whether the plaintiff has an individual interest in and need for the material whose return he seeks; Trump can have no interest in top secret government documents. As for personal items mixed in with the government times, the court says this:
(Duh, right? If the FBI gets a warrant to search your home and they seize evidence of a crime, the fact that you have a “possessory” interest in the seized items is irrelevant and doesn’t give you the right to a special master to decide whether the government should have seized the items. The court that issued the warrant already has jurisdiction.)
In Trump’s case, the personal items seized were in the same files as top secret government documents and stored in Trump’s personal office. The personal items have evidentiary value because they show that Trump personally handled the government documents.
- whether the plaintiff would be irreparably injured by denial of the return of the property; No showing of this, and
- whether the plaintiff has an adequate remedy at law for the redress of his grievance. The usual remedies available, some post-indictment, others in the court where the search warrant was issued.
The court also takes a swipe at Judge Cannon for ignoring the fact that Trump provided no information to back up his claims:
“The district court was undeterred by this lack of information.”
This is sort of funny and not funny at the same time:
Trump’s initial arguments fizzled, so Cannon helped him think up more. The fact that Plaintiff adopted the district court’s arguments is judicial snark for “Judge Cannon put her thumb on the scale for the plaintiff.”
To make things worse, here the appellate court has to puzzle out what the district court and plaintiff were even talking about:
For Judge Cannon, this is like getting an F in law school.
Here is why the court says Trump is not entitled to special treatment:
That’s the part that’s gonna hurt. Sorry, Trump. You’re not special. The court will not write a special rule for you that allows you to block the DOJ from investigating you.
Fun fact: Throughout all these court filings, Trump referred to himself as “President Trump.” The DOJ referred to him as “Plaintiff.” The appellate court, in its decision, refers to him as “Plaintiff.”
(Last week I complained a bit about social media. By the time I got all this posted on Twitter, I was hit by a wave of cynicism and anger at how horrible the system is and how Trump gets away with everything and why is it taking so long? Basically, commenters were repeating rage-inducing simplifications and Internet Memes. It occurred to me that they are the type of people who ruin parties.)
My new motto: To complain is easy. To throw blame is easier. Understanding requires effort.
So anyway, you can see why defense lawyers tell their clients to stay quiet: Everything Trump put into these court documents, including the stupid assertions and shifting arguments, can be used against him later. Add that to the list of reasons filing this lawsuit was stupid.
Palm Beach litigation attorney here. Enjoyed the recap and analysis. Maybe the answer to my question is unknowable, but do you have an opinion on WHY Judge Cannon ruled as she did?
My guess is that she is so firmly encapsulated in the right-wing information ecosystem that she thought she was doing the right thing. She thought that because Trump was a former president, an extra layer of oversight was a good thing.
2. The First Convictions for Seditious Conspiracy in 25 Years (and why it’s a big deal)
This week, Stewart Rhodes, leader of the Oath Keepers, and his sidekick Kelly Meggs were convicted of seditious conspiracy and other serious charges for their role in the January 6 attack.
Remember that initially, just after the attack, people thought Trump instigated the attack by inviting his followers to Washington D.C. with his “be there, will be wild” Tweet, riling them up on January 6 with his “fight like hell” speech on the Ellipse, then sending the crowd to the Capitol just as Congress was set to certify the election. The theory was that the crowd, riled by Trump, got out of hand and stormed the Capitol.
Immediately after the attack, the question debated by legal scholars was whether Trump’s tweet and speech were enough for incitement of violence. It would have been a difficult case to bring because Trump would have had a First Amendment defense, and as always, he threw out enough word salad to give himself deniability.
Later it emerged that many of the armed people who actually led the attack hadn’t attended Trump’s speech, which means his speech did not actually incite the violence (a lot more was going on). Had Trump been indicted on the grounds that his speech incited the violence, he would have shown that the people who led the attack were not even at his speech, and the prosecution would have looked stupid. That’s why smart prosecutors do not rush to indict, which means you can safely ignore the vocal former prosecutors and nonlawyers out there saying that charges against Trump should have already been filed.
Stewart Rhodes never entered the Capitol building.
If a trespasser is filmed trespassing, it’s fairly easy to convict that person. If another person stood back and watched the trespasser enter restricted grounds, it’s obviously harder to charge and convict that person for crimes that occurred during the trespass. You need solid evidence linking the bystander to the crime. That’s why the DOJ started with the foot soldiers who did the damage and is working its way to the planners like Stewart Rhodes, who were not in the Capitol.
Seditious Conspiracy is a big deal because sedition is the closest we have to treason in a case like this one.
The Constitution tells us that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It is settled law that “War” must be a war declared by Congress. Why? Because the drafters wanted it hard to prove treason. Therefore, the closest we have is seditious conspiracy.
Here are the elements of seditious conspiracy:
-
- two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States,
- conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,
- or by force to seize, take, or possess any property of the United States contrary to the authority thereof,
Force is a key element, which is what makes this such a serious crime.
Seditious Conspiracy is difficult to prove
The DOJ has a bad track record in bringing charges of seditious conspiracy against anti-federal government militias, so this conviction was a victory for the DOJ. The DOJ has indicted other defendants for seditious conspiracy, including defendants in a trial set to begin next week. The conviction this week obviously increases the DOJ’s chances of upcoming trials going well for the prosecution.
Taking Down the Dangerous Militia Leaders is a big deal
Among the cynical Internet Memes repeated after this conviction was “Trump hasn’t been indicted so none of this matters.”
Me=🤦♀️ If people don’t think that taking down these militias is a big deal, I don’t know what to say.
Consider this: If Trump were president, he’d be inviting these guys to dinner at the White House.
Some people objected to the term “insurrection” or “coup.” Well, now we can definitely call it sedition.
3: More news on the ongoing investigations
- The New York court heard closing arguments in the criminal fraud case against the Trump Org. Even though CFO Allen Weisselberg fell on his sword and tried to take all the blame, the jury appeared to be more sympathetic to the prosecution’s arguments that the Organization itself benefitted and encouraged the cheating. I suspect we’ll have a verdict next week.
- The Supreme Court ruled against Trump in the taxes-to-Congress matter, so Congress gets Trump’s taxes. (This is not a criminal matter, but it is Congress so expect leaks.) The New York DA has long had Trump’s taxes, which is why the Trump Org has been indicted.
- In a unanimous decision, the South Carolina Supreme Court ordered Trump’s former chief of staff Mark Meadows to testify in the Fulton, Georgia investigation into the conspiracy to overturn the election results in Georgia. The South Carolina Supreme Court found Meadows’ appeal “manifestly without merit.” (Meadows knows a lot and was on the famous call to Raffensperger in which Trump asked Raffensperger to find the votes necessary for him to win in Georgia.
- Former Trump White House lawyers Pat Cipilloni and Pat Philbin testified before the grand jury this week in the DOJ’s probe into the January 6 attack. (I updated my FAQ page to reflect the latest developments.) I suspect from the chronology and Cipillone’s testimony before the Congressional Select Committee that both lawyers wanted to testify and they wanted cover. Their lawyers were smart to get cover for them (in the form of a judicial order).
* * *
This week you might not need a cute dog picture, but here is JJ anyway, all dressed up. He wears it well, don’t you think? It just doesn’t do much for his image as a ferocious guard dog.
Great article. Cute dog!
Thank you for the expertise and effort. Makes all this quite understandable..
As per your post:
Some people objected to the term “insurrection” or “coup.” Well, now we can definitely call it sedition.
In light of section 3 of Amendment 14, can this act of “sedition” be considered engaging in “insurrection or rebellion?” I ask because there are a number of politicians, such as Senator Hawley with his raised fist, that provided comfort to these “seditionists.”
Thank you.
Teri, thank you so much for your thorough, logical explanations that a layman can understand.
Cheers! And thank you! JJ looks swell. Dog pictures always appreciated.
All I can say is keep the faith, baby!
Thank you for sharing your perspective and summaries in a manner that non-legal experts can understand.
Teri,
Can or will Judge Cannon be reprimanded for her overstepping in this case?
Appreciate all your analysis!
JJ is magnificent as a mental palette cleanser. Nevertheless, what’s bad news for the bad guys is good news for the Republic and its promise as an ongoing concern.
As always, appreciate the insights Teri!
I wonder to what degree folks like Meadows and Cipilloni fight against testifying more just to look good for Trump and the MAGA crowd. I doubt they want to go out of their way to help the prosecutors, but I would also expect that they would forthrightly answer questions, rather than taking the 5th or perjuring themselves
You can’t get Howley on Section 3 of the 14th Amendment for the raised fist. There would have to be more.
There is really no formal mechanism. The fact is that judges often make bad rulings. Even good judges sometimes get it wrong.
That takedown from the appellate court was pretty brutal.
I think they wanted to testify, but they wanted a court order as cover against legal challenges that they violated a privilege. They are both lawyers and advisors to the president.
Hmmm…I believe we need a cute dog picture every week! Thank you for sharing JJ with us and thank you for the sharp incisive analysis on these legal issues-very helpful and very much appreciated⚖️
Thank you, as always, for your thoughtful and informative analysis.
The successful prosecution of the two major seditionists is heartening, but will even that guilty verdict have great impact on the following?
Far too many Republican politicians have refused to strongly condemn Trump’s most outrageous employment of the paranoid style: the promulgation of his Big Lie and instigation of the Big-Lie inspired January 6 assault on our nation’s Capitol. Too many Republicans have remained silent even after Trump referred to indicted participants in that assault as “patriots” and “political prisoners” or even after he stated that if re-elected in 2024, he would issue full presidential pardons to the January 6 rioters.
https://www.washingtonpost.com/politics/republican-leaders-remain-silent-as-trump-casts-perpetrators-of-jan-6-attack-as-political-prisoners/2021/09/17/4ce91dc2-17d0-11ec-9589-31ac3173c2e5_story.html
https://www.washingtonpost.com/national-security/2022/09/01/trump-jan-6-rioters-pardon/
How will Trump’s acolytes respond to his December 3, 2022 assertion that his Big Lie justifies “the termination of all rules, regulations, and articles, even those found in the Constitution”?
https://truthsocial.com/@realDonaldTrump/posts/109449803240069864
How can so many Republican politicians remain silent when the disgraced and twice-impeached former president actively seeks to heighten racial, religious and political tensions? When he continues to subvert our nation’s constitutional order?
I may start a blog post with your questions: How can so many Republican politicians remain silent when the disgraced and twice-impeached former president actively seeks to heighten racial, religious and political tensions? When he continues to subvert our nation’s constitutional order?
I really look forward to that posting. Your analyses are always spot on.
…and “Wow!” You are every bit the night owl that I am.
Teri, the do something tweets are something I’ve been happy to leave at Twitter. So far, it’s not on Post. a place I know you’ll want to explore after you’ve mastered Mastodon.
You and JJ are a breath of rational fresh air.
Do trump’s posts rise to threat level?
As always, your explanations make it possible for me to understand the law and the courts and prosecutors. Thank you SO much.
I too appreciate doggie photos!!! Especially one so obviously bright.
Is wearing a red tie, (a political cartoonist’s symbol indicating Trump), JJ’s way of thumbing his nose?
Will we find a link to this blog post on Post social media? The ‘why hasn’t he been indicted’ people seem to be pouring in the door.
That would be very interesting Teri!~!
Thank you so much for your insights!~!
Can Meadows appeal the SC Supreme Court decision? If so where does it go next. SCOTUS? And how long will 5at take?
“To complain is easy. To throw blame is easier. Understanding requires effort.”
Thank you so much for your blog and this quote! It is so easy to become frustrated when I see the gloom and doom posts concerning tfg and the lack of consequences for his actions so far. Reading your explainers gives me understanding and hope. Also, JJ is an angel.
Could you answer this for me? If Judge Cannon was not actually allowed to exert authority and invoke equitable jurisdiction, doesn’t this also mean she doesn’t have the authority to undo it. I picture a bank robber walking into the vault and loading up his briefcase. Then the superiors say “No, you can’t do that.” Shouldn’t the rest of the story be that the superiors take control of the illegally taken stuff and then do the returning themselves? They wouldn’t say, “Ok bad-guy, walk yourself right back into that vault and make things right.”
Your dog is hilarious. Thank you as always for your enlightening analysis.
Thank you for explaining American politics to a Canadian who is sure America is insane. I read your articles faithfully.
Please join Post! I have left Twitter, and miss your informative and thoughtful posts.
“To complain is easy. To throw blame is easier. Understanding requires effort”. – Terri Kanefield
Thanks for the great quote. I think I’ll throw it back at all of the “commenters were repeating rage-inducing simplifications and Internet Memes”. They might not read it but others might.
As always, thanks for everything you share!
I’m on the West Coast, so it isn’t really that late here when I post 🙂
I think I’ll talk about that more last week.
These post are not incitement, but they show his state of mind, so easier to get him on January 6
I know. There is no mute or block button over there, so I’m not sure I can survive.
He is done. He already testified.
I am on Post here: https://post.news
There is no mute or edit button over there, and some of the comments are really irritating 🙂 so I probably won’t read comments. If you have a comment or question, come here. I read everything here.
Thank you so much for your concise, clear explanations – I rarely check news on Twitter anymore, as I got tired of the hysteria surrounding all things Tr***. He’s clearly continuing to stir up controversy for the sake of sitting back and wallowing in the chaos – it appears to be his drug of choice! I told myself I needed to step away and let the various investigators do their thing; our system is complex and takes time, and your calm, rational weekly newsletter has become my way of keeping up.
Thanks so much for taking the time – JJ is adorable, love his necktie! Anytime is a good time for cute dog pics.
Absolutely agree, Jenny said it more concisely! That quote of Teri’s is perfect.
Thank you, I would love to read your thoughts on this, it’s been bothering me for years. I’ve been asking my husband repeatedly, “How long can they stay silent? Do they think voters won’t remember their silent complicity? Doesn’t this destroy their “responsible, dependable if dull, Republican” brand? (I hate that term, like we’re all dish soap, with our own brand!) Perhaps that brand of Republican is already dead and gone, Tr***’s takeover of the party is complete, and I just haven’t caught up…
You’re the second person to ask this, so I will address it next week (unless the news completely explodes).
I see what you did there. A little snark from you makes my day. Thank you for your insights.
Palm Beach litigation attorney here. Enjoyed the recap and analysis. Maybe the answer to my question is unknowable, but do you have an opinion on WHY Judge Cannon ruled as she did?
Gary, I don’t know what to say!
Wonder if she has the self-awareness to realize that…
I think she was so firmly encapsulated in the right-wing information ecosystem that she thought she was doing the right thing. She thought that because Trump was a former president, an extra layer of oversight was a good thing.
This is a good question. I think I’ll add it to the body of the blog post. (Other questions I’ve gotten will require a full blog post to answer.)
I tend to take people at their word unless I have a reason not to, and that was the reason she gave. She seemed sincere. (You can read her initial order to see what I mean.)
I realize that judges make mistakes but Cannon’s decisions to favor trump were so obviously deliberate as evidenced by, as you said above, “the takedown from the appellate court was pretty brutal”, that I don’t understand how she can remain a judge?
Aren’t judges supposed to be impartial?
JJ is adorable.
Thank you for all your calm explanations. They remind me of back in the 90s, I was taking a basic political science class at the time President Clinton was going through his difficulties and impeachment. The professor based all his explanations of the proceedings on specific clauses of the constitution.
I thank our lucky stars we have a competent and honest Attorney General who is being allowed to do his job. And I thank JJ for doing what needs to be done with such class and cuteness.
They’re supposed to be, but she obviously got this totally wrong.
I still have a doubt. Since the 11th told Cannon to dismiss and that all of her orders were unlawful, does Trump still have to pay the $500 an hour already incurred by the Master’s helpers or does the DOJ now have to go ask Cannon to make Trump pay that?
Tanks Keri for putting in all the work – much appreciated
Klaus
Thanks for all the details. I understand the background, but I’ve never practiced law, so the explanations really help.
Yes, definitely a bad week for seditionists. Let’s have more!
I’m sure he does, yes. There are equitable remedies for the special master if Trump doesn’t pay. Trump won’t try to mess with that, though.
Do you really think she would have applied that reasoning to, say, Obama? I have my doubts.
tRUmp messes with _everything_, so still possible. 🙁
I like to liken the appellate ruling to the verdict in this trial (~5 seconds of play):
https://youtu.be/R2QHAxtDLOo?t=46
> “If federal law enforcement does something really bad and there is no remedy at law,
> people can go to federal court and ask for an equitable remedy.”
*NOW* I understand! _Thank you_!!
> “The district court was undeterred by this lack of information.”
> This is sort of funny and not funny at the same time
Does this have any consequence to Loose Cannon at all? (beyond her future as a higher level justice)
They’re working on a mute button. It’s in “beta”, so not really ready for prime time. I prefer it to Mastodon for following, but there’s a Mastodon add-on that might be helpful. Just in case your support staff know how to install, here’s the GIT config:
$ cat .git/config
[core]
repositoryformatversion = 0
filemode = true
bare = false
logallrefupdates = true
[remote “origin”]
url = git@github.com:hodgesmr/mastodon_digest.git
fetch = +refs/heads/*:refs/remotes/origin/*
[branch “main”]
remote = origin
merge = refs/heads/main
P.S. I am not a fully recovered programmer.
Of course not, but if Obama were searched there would be an actual need for a special master, right?
As someone posted today, the judges said “C’mon Aileen”.
Or we could all sing a round of “Good night, Aileen, Good night Aileen, I’ll see you in my dreams”… quote from the song connected to the movie, novel and lawsuit involving the Wobblies and a logging company from the 50’s-60s who sued. I just ran across the original hearing transcript last week. Which I found while looking for some family info only. (The Stampers were based on my uncles.)
Exactly. Still I have been long tempted to find a way to drop a comment to Trump thanking him for his efforts (though not availing) in setting up a safety net for Biden.
Snarky I know. But it would be satisfying.
I am a retired philosophy professor. I would love to collaborate with you on an op-ed addressing these questions—possibly for submission to WaPo.
My chief answer to the questions:
Republican politicians fail to recognize the wisdom of John Dewey’s insight: Ends and means are organically connected. In the realm of politics, means shape the very quality of the ends. When emotive manipulation, mendacity and fear are adopted as the means whereby Republican politicians forge party loyalty, they should not be surprised that they in turn will come to fear the ignorant, emotionally charged and violence-prone members of their base. They should recognize that the character of their party will further devolve, and their own political futures will be at risk.
The emotive manipulation and the response of the base becomes a feedback loop. The base demands more red meat. The politicians fall in line behind Trump, follow his lead and resort to ever more mendacious modes of manipulation. The base becomes increasingly aware of its own power. The politicians become more fearful. The politicians most in synch with the prejudices of the increasingly violence prone and authoritarian base increase their power within the GOP caucuses…and so it goes…the GOP ever devolving and the most authoritarian White supremacists and White “Christian” nationalists, because of their outsized influence in GOP primaries, hold the GOP elected officials more completely in thrall, etc.
Republican politicians have become fearful hostages of the Frankenstein’s monster they themselves have loosely sutured together and endowed with fearsome power.
Thank you Teri for your analysis and clarity which allows me to reach a more insightful grasp of the complexities
of ‘law and order’. I’m a pro-democracy advocate; any more clarity is greatly appreciated.
Without arrogance, there is a tragedy I see in Justice Cannon’s inability to notice that her ‘emperor’ isn’t wearing
clothes. Your empathy in explaining her ‘devotion’ is admirable.
And; …….. thanks for sharing your adorable buddy, JJ.
Thank you for your analysis and especially, your gleeful explanations judicial snark.
I love your pics of JJ. He looks a proper gentleman with his little red tie.
Accurate explanation Andrew.
They are also cowards waiting for the Democrats & the law to take Trump down.
I love your new motto: “To complain is easy. To throw blame is easier. Understanding requires effort.” So true in all things.
And JJ”s holiday look is perfect! Yes, he does wear it well.
Now we wait for more indictments and trials to follow. I would expect that we’ll have more good weeks for the DOJ and the rule of law going forward based on this past week’s events including the level of insanity to which the former president has achieved in his recent rantings. He’s in trouble, as he should be given his actions.
I’m also eager to read the House Select Committee to Investigate the January 6th Attack on the US Capitol’s final report coming soon. I know we heard what they presented to the public, but the final report will provide the full story of what they uncovered, including the testimony we haven’t yet seen. I can’t wait for your analysis and commentary on that one when it comes.
I don’t understand this reply.
Are there any professional consequences for Judge Cannon? Is it too much of a reach to suggest that the 11th Circuit ruling establishes a pro-Trump bias on Cannon’s part such that she would have an obligation to recuse herself on future matters related to Trump?
No really, there are no consequences for bad decisions other than developing a bad reputation. Judges making bad decisions is not entirely rare.
Yes, maybe even though the Richey test wasn’t met at all, she believed that the the extraordinary circumstances required to exercise equitable jurisdiction existed merely because a former president was involved. I did not read her order so I don’t know if this is mentioned or if it could be a background rationale. Still it seems like you’d have to abrogate Richey to get there.
She tried to carve out an exception.
Judges do this, and sometimes it is justified.
So how can she remain a judge?
Judges often make bad decisions. That’s why we have courts of appeal.
Sometimes even good judges get it wrong.
The shorter answer is that judges have lifetime appointments. It’s in the constitution. The idea was to lift the above politics.
Yes, the “Republican” Party is rapidly becoming little more than a front for domestic terrorism. Not a pleasant thought.
I appreciate that in your analysis & breakdown (& the red ink is very helpful!) you don’t jump on a bandwagon to bash Judge Cannon, instead, you include that after reading what she’d written you found her sincere (though incorrect) & encourage others to read it as well. I like that you matter-of-factly inform us that “judges sometimes make bad decisions–even well-intentioned/good judges”–it is part of being a human in the job is how it comes across to me–& the appeals court is there to spot & address the errors. You helped disconnect my knee-jerk-exasperation-toned-quick-to-pounce-ignorance by connecting the dots re: Justice & fairness is what I expect and -hey–lifetime judicial appointments were made part of the system to help attain that as a means of preventing systemic injustice occurring from a politicized Judicial system–not the reverse! That you make connections between the bits of high school/college/pop hx writings understandings I’ve collected and the actual laws & processes, & rationales brings many, ‘Oh, now I get’/ ‘Oh so it’s nuanced & makes practical sense,’ ‘oh, it needs to take a lot of time in order to work fairly/justly/collect evidence,’ ‘oh, it was designed to prevent politicization, not the reverse,’ etc. So, though the opposite may be obvious on many social media places, I hope you know that as a result of reading &/or hearing others talk about what you’ve written/with such mucho patience 99% of the time–a whole lot of people aren’t jumping on bash’em-bandwagons anymore. ‘Just sayin’
Would one reasonable way to thank you, for your exceptional work in service of our democracy, be to make a contribution to a favorite charity of yours, in your name? If so, would you name one or more of them for us?
The hgfh value of your educated, thought-full, cogent and calming analyses of the (How can I put this?) Trump-related, Republican-suborned Sitstorm can hardly be overstated. And you provide all this effort, on a reliably regular basis, as a public service, free of charge. Some of us would like a tangible way for showing our thanks.
Regards,
(($; -)}™
Gozo
Thank you. I had to calm someone down who wanted to see Cannon punished. Can you imagine a bigger disaster for democracy than allowing for that? I think that we all have a natural inclination toward autocratic thinking and it’s hard to pull ourselves back. That’s true for all of us. What helps me is that, as a defense lawyer who represented indigents, I saw so much unfairness and learned to respond by feeling motivated to work harder to lessen the unfairness.
Thanks, I’ll think about it 🙂
I second what Elizabeth just wrote; and Hitchco etc. I have an advanced tech degree but zero legal knowledge. And a lifetime of reading 20th century history predisposes me to jump at any shadow of fascism (right or left). Not to mention persuasively sincere former prosecutors who are also leagues beyond me. SO: your highly informed and (important !) carefully considered opinions are among the most helpful things I read. THANKS!
@number 1. Now that 2 more classified documents have been found in a different location, why not issue search warrants for all of Trumps properties to make sure there are no more national security risks?
https://www.theguardian.com/us-news/2022/dec/07/trump-classified-documents-found
Amen!
Those documents were apparently found and turned over by Team Trump. The Archives know what is missing and the judge apparently believed Trump still had documents. In response Team Trump turned these over.
The standard for whether the DOJ can get a search warrant is whether a judge finds probable cause to believe there are more documents in a specific location. Nobody “just” gets a search warrant. They are hard to get and require judicial approval. Whether this is happening or not, we don’t know. Whether the DOJ is trying to get a warrant, we don’t know. Whether the judge found probable cause, we don’t know.
Don’t you hate not knowing?
Thank you, too, of course.
Why, given a shabbiness of her opinion, must we extend a presumption of Good Will to Judge Cannon?
Is it more polite to presume risible incompetence than malice?
This isn’t a matter of politeness.
Did you read her decision of September 5?
I am not a fan of Judge Cannon but I will not accuse people of malice without evidence when the simpler explanation is that she believed she was right in carving out an exception in this case. That’s what she said she was doing, and there is no reason for her to lie.
She knows how this works. If she gets it wrong, she will be overturned. It would be very strange for a District court judge to do something she knows will be overturned.
Look up Occam’s razor. The simpler and most likely explanation is that she thought carving out an exception in this case was a good idea. The appellate court disagreed and took her apart.
Judges carve out exceptions all the time. It is not all that unusual to carve an exception.
AH, but now I know more than I did before you answered. Now, patience to see what happens next, if anything.
Hi Teri, Nice post in post. Since you don’t read replies there, here is a direct link to ignore or not and if not, then reply or not. NO DEMANDS! 🙂
https://www.openweb.com/share/2Ijgv6jHNgXvGhuKbIv7T4jOQEt
“more documents in a specific location”
Maybe we need to expand the concept of “probable cause”? Viz. if the probability of there being more documents is close to 0.99 then the probabilities at each of several locations can be added up to reach the threshold probability for issuing the warrant for all locations. (I know I’m just dreaming, but still …)