Judge Cannon Gets the Response She Deserves

In the Week Ahead edition of the newsletter, I flagged that on Tuesday, the Special Counsel’s office owed Judge Cannon a response to her request for jury instructions. The Judge’s order was, in lieu of other terms I might use, nuts. I suggested Jack Smith wouldn’t play ball. When he filed his response, close to midnight Tuesday, my prediction proved correct.

Before we get started, if you want a refresher on the Judge’s order and how we got to this point, I wrote about it here (scroll down towards the bottom, to the fourth of the “four corners” discussed in this column). The short version is that Judge Cannon ducked making a ruling on Trump’s motion to dismiss the prosecution based on the Presidential Records Act (PRA), instead ordering the lawyers for both sides to submit jury instructions for two different scenarios. Each scenario assumed the PRA applies to this case and provides Trump with a defense.

The Special Counsel isn’t buying it. If the Judge. sticks to this position—and we’ll get there in a second because it’s clearly an erroneous read of the law—it’s likely a death blow to the government’s case.

Instead of jumping to the jury instructions (which judges almost never ask for this early in a case), Jack Smith wants a ruling on Trump’s motion to dismiss because of the PRA. He wants it now, because he’s entitled to appeal to the Eleventh Circuit if Judge Cannon rules against him. And he’d win if she did.

Lawyers disagree with lots of rulings judges makes, but usually there are two sides to the issue and they’re disappointed the judge didn’t rule the way they wanted them to, while recognizing the ruling isn’t “wrong.” That’s not the case here. The Presidential Records Act simply doesn’t act as a forgiveness mechanism for violating the rules about possessing classified information. Trump’s argument would, for instance, let a president designate the nuclear codes or the identity of a highly placed human source in an enemy country as “personal” and walk away from the White House with it free and clear. The stupidity of that result underlines the fact that the PRA doesn’t act like a magic wand that lets a former president keep classified documents when he leaves office. The PRA doesn’t provide a way around the National Espionage Act Trump is charged with violating; they operate in separate spheres. But Trump has fabricated this argument, his lawyers have lavished a lot of attention on it, and now a federal judge, without ruling on it explicitly, seems to have bought it.

That view is both clearly erroneous and potentially, perhaps almost certainly, fatal to Smith’s prosecution of Trump—not because the government would fail to prove Trump guilty, but because getting the law wrong here lets the Judge dismiss the case outright or give instructions that would likely result in the jury doing so. And because she’d be doing that while the trial was underway and after double jeopardy had attached, she’d be doing it in a way that would prevent the government from appealing. The Judge should rule now, in advance of trial, so the government can appeal if she rules against them. But if Judge Cannon dismisses the case or the jury acquits Trump, even on the basis of a clearly erroneous interpretation of the law, after the jury is sworn in and double jeopardy attaches, that’s it. The case would be over on the basis of Cannon’s dead-wrong read of the law, and no one, no higher court or anyone else, would be able to gainsay her.

I’ve repeated the double jeopardy reasoning in several earlier posts, so forgive me for doing it again. But it’s legally complicated and essential to understanding just how erroneous Judge Cannon’s approach to this case is. Lawyers quibble with judges’ decisions all the time. That’s not what this is. Her adoption of Trump’s conveniently made-up view of the PRA is the kind of decision that makes reasonable lawyers scratch their heads and wonder what the heck she’s doing on the federal bench. Doing it at a point where she can’t be appealed underscores the crazy.

Jack Smith undoubtedly finds the Judge’s approach frustrating. His strategy in the response on Tuesday was to take the Judge back to step one: demanding a ruling on Trump’s PRA motion, the step she skipped so she could avoid a Smith appeal of her ruling to the Eleventh Circuit. Smith wrote that a ruling was “vitally important” and asking her to “promptly decide” whether the “unstated legal premise” in her order for jury instructions—that the PRA gave Trump a defense to possessing classified material—was “a correct formulation of the law.”

You can read Smith’s full response here, but we’ll work our way through the important parts. The core of the argument is the Special Counsel telling the Judge in no uncertain terms that she has to rule on Trump’s motion, and she has to do it now. Smith tells her he’s entitled to get her ruling far enough in advance of trial to have the opportunity to appeal. He tells her that if she doesn’t he’ll mandamus her. Mandamus is a specific type of motion lawyers can make to a court of appeals asking them, as Andrea Mitchell aptly put it when I was on her MSNBC show Wednesday, to order the Judge to do her job.

The clock is ticking for Judge Cannon to rule on Trump’s motion to dismiss, but we don’t know precisely how much time Smith has put on it. It’s clear he now intends to force her hand and to get a ruling on the motion before double jeopardy clears a path for Trump to skate on these charges. As I often do with Trump cases, I pause here to contemplate why a federal judge wouldn’t be making every effort to let prosecutors try a former president on serious charges involving mishandling high level classified information and obstructing an investigation into his conduct. It’s truly an incredible situation.

When a prosecutor like Jack Smith drops the tone of deference toward the Judge that federal prosecutors are schooled in using, you know it’s deliberate. So when Smith prefaces the background section of his response, the part where he explains the government’s opposition to Trump’s motion, by writing, “As the Government has previously explained,” it’s not just a turn of phrase. His message throughout the response is that time is up; he’s out of patience. The Judge has had everything she needs to make a decision in front of her for weeks. Either the Judge rules promptly and properly or the government is ready to go to a higher court.

It's unusual for federal prosecutors to be this aggressive with a judge, but they have no other choice here if they’re going to protect their case.

The Special Counsel lays out the case law that explicitly authorizes him to seek a writ of mandamus, something government lawyers only very rarely ask for. The law specifies that one of the rare circumstances where the writ can issue is to correct a district judge's decision to use clearly erroneous jury instructions that could lead to an unwarranted acquittal.

Prosecutors don’t make idle threats about mandamus. If Smith is raising it, I’d expect he has already received the Solicitor General’s blessing to ask for it. This is the sort of pleading a federal prosecutor only files if they’re prepared to follow through.

So, Smith tells the Judge that she “must decide whether the unstated legal premised embedded in the Court’s recent order [the one to submit jury instructions] represents ‘a correct formulation of the law.’” Smith argues that the PRA’s distinction between personal and presidential records has nothing to do with the question of whether Trump violated the Espionage Act by keeping classified material at Mar-a-Lago. I conceptualize the argument this way: if the two laws, the PRA and the Espionage Act, were on a Venn diagram, they would look like this.

They don’t intersect. There is no place, no magic wand, that the PRA can offer to legitimize illegal possession of classified material or National Defense Information.

Smith really wants Judge Cannon to go ahead an rule on the PRA motion, so he restates a summary form of the argument he made earlier in his brief opposing it, patiently explaining why Trump’s position that the Presidential Records Act means he can’t be charged with violating the Espionage Act is wrong. It’s wrong both because Trump never actually designated the records as personal and also because he couldn’t have—they are records created by the intelligence community and shared with Trump in the course of his official duties. They’re the heartland of what the term “presidential records” means, and even if Trump made some sort of designation, that wouldn’t immunize him from prosecution for retaining National Defense Information after he left office. They are “straightforward” presidential records in Smith’s view. He writes, “it would be pure fiction to suggest that highly classified documents created by members of the intelligence community and military and presented to the President of the United States during his term in office were “purely private.” Smith also points out that Trump never designated the records private before he absconded with them and he can prove it because Trump and his representatives continued to refer to them as presidential records for over a year after he left the White House. The PRA defense was a much later fabrication.

Smith spoon-feeds the law to the Judge, giving her every opportunity to get it right even at this late date. If she doesn't and Smith is forced to appeal, expect the Eleventh Circuit to bench slap her in a way that makes last year's decisions reversing her look mild (and they weren't).

That brings Smith to the heart of the matter, that the two scenarios the Judge asked him to provide jury instructions for “rest on the incorrect premise” that Trump can possess classified information so long as it’s personal records. Smith tells her she must “resolve these crucial threshold legal questions promptly” because he’s entitled to seek appellate review if she gets it wrong. He concludes by telling the Judge that if she is committed to the erroneous interpretation of the PRA she is using, she should “make that decision clear now, long before jeopardy attaches,” so the government can go ahead and take its appeal.

Filing a writ of mandamus happens under Federal Rule of Appellate Procedure 21, which clarifies that the writ is filed with the court of appeals, but a copy must be given to the district judge. The judge becomes a respondent, not quite a defendant, but think of it as a party who has some explaining to do. Lawyers who represent parties in private practice can also file for mandamus and they do so, although not frequently, but enough that a judge might be called upon to respond several times in their career. Being the subject of one from Justice Department lawyers is a serious matter that almost no judges experience in their time on the bench.

The appellate court can deny the petition immediately if it believes it lacks merit. If it proceeds, it can order the judge/respondent to respond. Or, the appellate court can “invite” the judge to respond if they want to.

The Eleventh Circuit rule is that mandamus is available “only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion.” Smith will have to convince the court three conditions are met to get them to rule in his favor:

• the party seeking the writ must have no other adequate means of relief

• they must demonstrate that their right to the writ is clear and indisputable; and

• the court must determine that a writ is appropriate under the circumstances.

Whether Smith asks them to or not, there is nothing that prevents the Circuit from removing Judge Cannon from the case once an appeal is properly in front of them and they have jurisdiction over the matter. That’s what they did in U.S. v. Martin, the Eleventh Circuit case we discussed last week, where the court ordered the district judge be replaced after being repeated reversals. The court held that it was “likely that ‘the original judge would have difficulty putting his previous views and findings aside,” a decision that seems tailor-made to apply to this case.

As for Trump, his lawyers also filed their jury instructions on Tuesday. They congratulated the Judge, claiming that “the Court has correctly stated the law in scenario (b) of the March 18 Order.” That’s the scenario that says no one can second-guess Trump. Once he says he designated a document as personal, that’s the ball game, and the prosecution is at an end.

Bless their hearts. They’re wrong.

We’re in this together,

Joyce