I spent most of my career with the federal judiciary as a staff attorney (5th Circuit in NOLA, the Middle & Northern Districts of Florida, and I clerked for the then-chief judge of the Northern District of AL after law school). I have always pushed back hard whenever anyone suggested that judges rule based on their political affiliations. That was never my experience. But now — Trump has larded the bench with some straight-up shills. It’s appalling. I hope the 11th Cir. quickly delivers a potent rebuke to Judge Cannon.
On an earlier post I commented that I thought that Judge Cannon's attempted bi-furcation of criminal investigation and National Security could create a future problem for the prosecution during a subsequent trial. I think I used the analogy of "fruits of the poisonous tree" & the analogy of the Oliver North case in how something that is done correctly at the time can end up blowing up later at trial. Not surprisingly to me, your description of the "untenable position of proceeding with an essential national security assessment while risking her wrath on the backend if she decides their decision was wrong" more eloquently describes the problem. I am a retired state prosecutor & Judge Cannon's rulings have me more upset than any adverse decision I faced during my career. Here there is evidence before this Judge that members of Trump's legal team have either lied or passed along lies without diligently attempting to verify the assertions. Yet, under her order that same team is being allowed to view Classified Documents. That is flat out crazy. Or as Neal Katyal said yesterday on MSNBC "Cray. Cray."
If Hillary had just one of the empty Top Secret folders in her house, Trumpers would have insisted she be immediately drawn and quartered. The GOP's support for Trump demonstrates their willingness to be controlled by the White Christian Nationalists, who have used the Federalist Society and Mitch to take control of the judiciary. Judge Loose Cannon is an example of what our country would be if Trumpers proceed unchecked. She and her ilk willingly abandon the rule of law in order to promote their fuhrer.
We face two pivotal events: Ukraine is important, because If Putin is not stopped, Ukraine will lose its democracy, Europe will be at risk of Russian takeover, and the World will be at risk. This investigation of Trump is important because if Trump is not held accountable soon, the fascism of the White Nationalist will continue to grow, our democracy will be at great risk, our allies will be unable to trust us, they will be reluctant to share with us their intelligence, and Putin will continue to manipulate our elections.
If Putin and Trumpers stay in power, the world will be at risk.
Trump has successfully normalized lying. In-your-face lying--and lying about lying. He demands "loyalty" like a mob boss and gets away with such behavior even when everyone knows he's lying and manipulating the system in ways that threaten the institutions which have kept this republic viable. Now I look at Cannon and see the intentionally seeded by-product of his perverse rebranding of "ethics" and the value of truth) and I wonder what it takes for judicial misconduct to kick in here.
OK I guess I'm engaging in what-aboutism, but I was reminded yesterday about Bill Clinton's very publicly lying - I just don't want to conveniently forget about that TFG isn't like the first to be so blatant about lying to the country. (& yes, I know that TFG is pure lies all the time (that he's not saying the 'quiet part' out loud, that is)).
Certainly, Clinton lied. Very publicly, and his Big Lie was about sex. I'm a Southern liberal and believe me, it's not easy. Folks down here loathed the guy. I remember telling my husband I wanted to march right up to the Oval Office and whack that lying philanderer upside the head with a skillet full of hot lard.
But Clinton's major lies were about his promiscuous personal life and when he was caught in the lies, he didn't call what was on that dress "fake semen", nor did he call the press "the enemy of the people." Trump's lies and his rhetorically vicious responses to being exposed incite millions of his fans to violence. He's a clear and present danger to the survival of our democratic republic.
Great job to bring forward this motion to the circuit.
I have are two concerns which I hope the Circuit can cast light on: How is the District Court handling the boundaries in scope of authority of the various branches? and How do judges act in maneuvering through the process of adjudicating a controversy?
Unlike the construction of the Congress in Article I and the enumeration of its powers in Article I Section 8, Articles II and III are extremely terse regarding the scope of their authority. Article II defines the Executive Branch by stating "The executive Power shall be vested in a President of the United States of America" and offers no further explicit structure of the Office. Article III states the principal scope of the Judicial Branch in one phrase - "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;"
Federal Judge Ima Luce Cannon purports to rummage about in Article II business. What does "classification" mean, and how is it managed? What does"executive privilege" mean? These questions derive from the duty to execute the various laws. Therefore, the matters are the topics for internal resolution in the Executive Branch. The Executive Branch has plenary authority to construct and instruct by authoritative dictum the manner of execution of the laws regarding these issues. If they cannot take hold of these matters, nobody can. The Courts can contemplate the manner and use of these constructs, and whether there is conflict with other laws or the Constitution. It has no business in the construction or use of the ordinary performance of the Executive, absent Article III authority.
The remaining issues related to scope are proper to Article III and the courts' precedents. The facts drive the Court's procedures in the remaining questions: How do Article III courts deal with questions of attorney-client privilege? How is evidence to be obtained from private parties? and more generally, "What do possession and ownership mean?" and such familiarities in common and case law.
Judge Cannon shows no deference to driving on her side of the street. As to classification and national security and the risk of injury to it, she may weigh an answer to the question provided by the plenary authorities. She seems rather to be ruminating over the Executive Branch and her comfort with their manner of proceeding with their Constitutional charge. The Constitution clearly delineates that it's Somebody Else's Business, not hers.
The other matter is deeper and more expansive. The Federalist Society and the (legitimate) strict constructionists spent all their time in the post-New-Deal years, rowling and spuming over the "activist courts," the "unelected legislature in robes" and such.
One of the general traditions in courts is that they answer questions asked, and propositions made to them. They are not there to wave the banner of sua sponte, and make up answers for what is not at controversy. But Judge Cannon wishes to be the most activist judge in history. She wishes to take the plaintiff's arguments-by-inference and other such mush that the plaintiff's counsel is too embarrassed to assert, and bundle these off to an expert to solve. Perhaps they are insolvable because they are insufficiently defined. Classification. National Security. Risk. Privilege. She seeks answers in the manner of Sybil Trelawney:
"So you have chosen to study Criminal Procedure, the most difficult of all legal arts. I must warn you at the outset that if you do not have the Sight, there is very little I will be able to teach you. Books can take you only so far in this field..." No, sorry, that's the class in Divination that Harry Potter took at Hogwarts. I knew I'd seen Judge Cannon before.
Law already has plenty of terms which can help settle this chaos. "Abuse of Discretion: a failure to take into proper consideration the facts and law relating to a particular matter. An arbitrary or unreasonable departure from precedent and settled judicial custom." That tail's been pinned on many a donkey throughout legal history.
In the motion for a partial stay of the order at the District level, the Trump team does not even purport the existence of facts which they could then dispute. Are they classified, or not? Who tells the Justice Department what to do? (hint-read the first line of Article II.) Privilege, or no privilege - and of what sort? We will see if the new, clean, fact-free motion works at the 11th Circuit, and if the hyper-activist District Court will be gently redirected.
Greetings JV - Happy Sunday - Thank you for giving us an astute assessment of what’s at play here. I’ve been following this trajectory since Judge Cannon’s initial filing to stop the investigative process of documents confiscated from Trump’s Maralago resort and as a lay person I was horrified at the nonsensical nature of her explanations. Seems we are getting deeper and deeper into the woods on this one. I am anxiously awaiting Tuesday’s findings for starters.
I am not a lawyer, have never been in law enforcement, and have no expertise in political investigations. I am a retired 38 year public school educator, the last eleven of which were as a local teacher's union President of the 32nd largest school district in the United States. I do not pretend to be speculating from a point of expertise, but from the perspective of a concerned citizen who has attempted to be well informed regarding the events surrounding Trump's "stolen documents" scandal. All that said, I offer this conjecture on what will eventually be revealed regarding 45s handling of these classified documents, including the empty folders.
First, I maintain that Trump has never done anything in his life without personal profit and benefit being his end goal. Keeping that in mind, knowing that he LOST the 2020 election and that his plans to overturn those results failed, he orchestrated a plan to use his access to classified documents to achieve that end.
It is my belief (again, please remember that this is MY speculation...I do not make any claim to have any proof) that Trump is still in possession of more documents that have been relocated to his other properties (Bedminster, Doral, or possibly even some of his overseas holdings). It is my belief that his involvement with the Saudi's through the LIV golf tour has a connection to his theft of these documents, and some point in the future, this will be revealed.
I generally do not like to live in a world of "what if's" and unsubstantiated speculation, but I feel confident in offering this OPINION of the "what and why" of Trump's removal of these documents in his hurried exit from the White House. He had a plan to profit off of these and, as he has done with most every endeavor he's ever undertaken, it was executed sloppily and clumsily.
I hope I'm wrong, but I will maintain these opinions, until other explanations provide reasonable, proven explanations.
I am fascinated by the ideas you have put forward and would not be surprised if any of them turned out to be true. There is nothing that would surprise me about Trump’s behavior.
Thank you so much Joyce for helping us understand this intricate series of events. The person I loved most in the world was murdered while on protection dury as a US Marine bec a US citizen sold TSI/HSC. These events are personal for me.
I have no law degree and a lot of this soars over my head. Perhaps I should apply my old study trick of attempting to draw a diagram? Anyway, I really don't "need" to see Trump behind bars as much as I don't want to see the justice system twisted into a Gordian Knot.
I'm not a lawyer, nor would I want to be one. I'd take waterboarding instead, if you don't mind.
I guess that Trump could request expedited Supreme Court review, of a yet-unordered US Court of Appeals approval of the motion to stay the District Court, if such a stay does result. Justice Clarence Thomas, (eww!), can take this up to the Supremes. The Supreme Court can decide to accept emergency review and temporarily halt any Circuit Court stay by granting expedited Supreme Court review of the US Court of Appeals, 11th Circuit's order - if the Supreme Court would want to touch that. It’s radioactive, so they would be crazy to. But they might be crazy enough.
Meanwhile, The US Court of Appeals for the 11th Circuit could issue an EN BANC review of the DOJ motion. That means that ALL Circuit Judges are speaking as one voice, in matters that concern a matter of exceptional public importance. The US Court of Appeals for the 11th Circuit might order hearing en banc as an initial matter instead of a three judge panel hearing it first. En banc review means that the appellate court insists that their decision is particularly hewn in stone.
I’d doubt that the US Supreme Court would grant expedited review of a yet unordered Circuit Court's en banc grant of the motion to stay. Or suspend the circuit court's decision, or order a temporary stay if US Supreme Court emergency review were granted. That would be crazy. I don’t know if there’s anything like that's ever been done before., even in Bush v. Gore.
WHY such shenanigans might continue, is unthinkable. If strict American traditional juridical procedure were to be followed, the The US Court of Appeals will issue a binding stay, and throw this overloaded diaper bag of a case back into Cannon’s yard, with the command, "Hoc stercore maturescandum est!" (let this sh*t ripen a little.)
All these herky-jerky things go on without a case, not to mention even an indictment. The Constitution says courts do CASES. This seems to be just furtive rummaging. Appellate-level courts are supposed to let the process play out to completion, and then grab the principal issue on appeal.
The whole Trump/Cannon case to American court procedure, as the demolition derby is to Indy Car racing. I hope there is a helmet law for the US Court of Appeals' judges.
I am glad to hear Judge Dearie will have a public hearing. That is encouraging. I can’t wait until Trump is on the stand testifying under oath. I hope that happens one day. He is really shielded by having others do his talking for him. Thanks again for clarifying the law in this legal chess game.
Wow! this is so informative, Joyce. You have laid out the logic of the argument against the Trumpified Judge Cannon flawlessly. I can understand the nuances of the argument better than any sound bite could ever convey. Thank you for shining light on such a complex case with epic consequences!
I spent most of my career with the federal judiciary as a staff attorney (5th Circuit in NOLA, the Middle & Northern Districts of Florida, and I clerked for the then-chief judge of the Northern District of AL after law school). I have always pushed back hard whenever anyone suggested that judges rule based on their political affiliations. That was never my experience. But now — Trump has larded the bench with some straight-up shills. It’s appalling. I hope the 11th Cir. quickly delivers a potent rebuke to Judge Cannon.
On an earlier post I commented that I thought that Judge Cannon's attempted bi-furcation of criminal investigation and National Security could create a future problem for the prosecution during a subsequent trial. I think I used the analogy of "fruits of the poisonous tree" & the analogy of the Oliver North case in how something that is done correctly at the time can end up blowing up later at trial. Not surprisingly to me, your description of the "untenable position of proceeding with an essential national security assessment while risking her wrath on the backend if she decides their decision was wrong" more eloquently describes the problem. I am a retired state prosecutor & Judge Cannon's rulings have me more upset than any adverse decision I faced during my career. Here there is evidence before this Judge that members of Trump's legal team have either lied or passed along lies without diligently attempting to verify the assertions. Yet, under her order that same team is being allowed to view Classified Documents. That is flat out crazy. Or as Neal Katyal said yesterday on MSNBC "Cray. Cray."
So Trump is just trying to see how much he can get away with? Our country’s national security is at stake here and the world is watching very closely.
Absolutely right. Both of you.
Or as he said "A crock of a crock of s$$$"
This would be a good op-ed for the Miami Herald.
If Hillary had just one of the empty Top Secret folders in her house, Trumpers would have insisted she be immediately drawn and quartered. The GOP's support for Trump demonstrates their willingness to be controlled by the White Christian Nationalists, who have used the Federalist Society and Mitch to take control of the judiciary. Judge Loose Cannon is an example of what our country would be if Trumpers proceed unchecked. She and her ilk willingly abandon the rule of law in order to promote their fuhrer.
We face two pivotal events: Ukraine is important, because If Putin is not stopped, Ukraine will lose its democracy, Europe will be at risk of Russian takeover, and the World will be at risk. This investigation of Trump is important because if Trump is not held accountable soon, the fascism of the White Nationalist will continue to grow, our democracy will be at great risk, our allies will be unable to trust us, they will be reluctant to share with us their intelligence, and Putin will continue to manipulate our elections.
If Putin and Trumpers stay in power, the world will be at risk.
Exactly. Not just the United States.
Trump has successfully normalized lying. In-your-face lying--and lying about lying. He demands "loyalty" like a mob boss and gets away with such behavior even when everyone knows he's lying and manipulating the system in ways that threaten the institutions which have kept this republic viable. Now I look at Cannon and see the intentionally seeded by-product of his perverse rebranding of "ethics" and the value of truth) and I wonder what it takes for judicial misconduct to kick in here.
This is horrifying.
OK I guess I'm engaging in what-aboutism, but I was reminded yesterday about Bill Clinton's very publicly lying - I just don't want to conveniently forget about that TFG isn't like the first to be so blatant about lying to the country. (& yes, I know that TFG is pure lies all the time (that he's not saying the 'quiet part' out loud, that is)).
You're right.
Certainly, Clinton lied. Very publicly, and his Big Lie was about sex. I'm a Southern liberal and believe me, it's not easy. Folks down here loathed the guy. I remember telling my husband I wanted to march right up to the Oval Office and whack that lying philanderer upside the head with a skillet full of hot lard.
But Clinton's major lies were about his promiscuous personal life and when he was caught in the lies, he didn't call what was on that dress "fake semen", nor did he call the press "the enemy of the people." Trump's lies and his rhetorically vicious responses to being exposed incite millions of his fans to violence. He's a clear and present danger to the survival of our democratic republic.
Yes that’s all true
Thank you for explaining this so a layperson can understand. You are a gem, Joyce!
Great job to bring forward this motion to the circuit.
I have are two concerns which I hope the Circuit can cast light on: How is the District Court handling the boundaries in scope of authority of the various branches? and How do judges act in maneuvering through the process of adjudicating a controversy?
Unlike the construction of the Congress in Article I and the enumeration of its powers in Article I Section 8, Articles II and III are extremely terse regarding the scope of their authority. Article II defines the Executive Branch by stating "The executive Power shall be vested in a President of the United States of America" and offers no further explicit structure of the Office. Article III states the principal scope of the Judicial Branch in one phrase - "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;"
Federal Judge Ima Luce Cannon purports to rummage about in Article II business. What does "classification" mean, and how is it managed? What does"executive privilege" mean? These questions derive from the duty to execute the various laws. Therefore, the matters are the topics for internal resolution in the Executive Branch. The Executive Branch has plenary authority to construct and instruct by authoritative dictum the manner of execution of the laws regarding these issues. If they cannot take hold of these matters, nobody can. The Courts can contemplate the manner and use of these constructs, and whether there is conflict with other laws or the Constitution. It has no business in the construction or use of the ordinary performance of the Executive, absent Article III authority.
The remaining issues related to scope are proper to Article III and the courts' precedents. The facts drive the Court's procedures in the remaining questions: How do Article III courts deal with questions of attorney-client privilege? How is evidence to be obtained from private parties? and more generally, "What do possession and ownership mean?" and such familiarities in common and case law.
Judge Cannon shows no deference to driving on her side of the street. As to classification and national security and the risk of injury to it, she may weigh an answer to the question provided by the plenary authorities. She seems rather to be ruminating over the Executive Branch and her comfort with their manner of proceeding with their Constitutional charge. The Constitution clearly delineates that it's Somebody Else's Business, not hers.
The other matter is deeper and more expansive. The Federalist Society and the (legitimate) strict constructionists spent all their time in the post-New-Deal years, rowling and spuming over the "activist courts," the "unelected legislature in robes" and such.
One of the general traditions in courts is that they answer questions asked, and propositions made to them. They are not there to wave the banner of sua sponte, and make up answers for what is not at controversy. But Judge Cannon wishes to be the most activist judge in history. She wishes to take the plaintiff's arguments-by-inference and other such mush that the plaintiff's counsel is too embarrassed to assert, and bundle these off to an expert to solve. Perhaps they are insolvable because they are insufficiently defined. Classification. National Security. Risk. Privilege. She seeks answers in the manner of Sybil Trelawney:
"So you have chosen to study Criminal Procedure, the most difficult of all legal arts. I must warn you at the outset that if you do not have the Sight, there is very little I will be able to teach you. Books can take you only so far in this field..." No, sorry, that's the class in Divination that Harry Potter took at Hogwarts. I knew I'd seen Judge Cannon before.
Law already has plenty of terms which can help settle this chaos. "Abuse of Discretion: a failure to take into proper consideration the facts and law relating to a particular matter. An arbitrary or unreasonable departure from precedent and settled judicial custom." That tail's been pinned on many a donkey throughout legal history.
In the motion for a partial stay of the order at the District level, the Trump team does not even purport the existence of facts which they could then dispute. Are they classified, or not? Who tells the Justice Department what to do? (hint-read the first line of Article II.) Privilege, or no privilege - and of what sort? We will see if the new, clean, fact-free motion works at the 11th Circuit, and if the hyper-activist District Court will be gently redirected.
Oopsy. In last paragraph, I meant - not the DOJ motion, but the Trump team’s reply.
Thank you for that clear and concise explanation. I feel that I now understand the importance of this legal endeavor oh DoJ’s part.
Greetings JV - Happy Sunday - Thank you for giving us an astute assessment of what’s at play here. I’ve been following this trajectory since Judge Cannon’s initial filing to stop the investigative process of documents confiscated from Trump’s Maralago resort and as a lay person I was horrified at the nonsensical nature of her explanations. Seems we are getting deeper and deeper into the woods on this one. I am anxiously awaiting Tuesday’s findings for starters.
I am not a lawyer, have never been in law enforcement, and have no expertise in political investigations. I am a retired 38 year public school educator, the last eleven of which were as a local teacher's union President of the 32nd largest school district in the United States. I do not pretend to be speculating from a point of expertise, but from the perspective of a concerned citizen who has attempted to be well informed regarding the events surrounding Trump's "stolen documents" scandal. All that said, I offer this conjecture on what will eventually be revealed regarding 45s handling of these classified documents, including the empty folders.
First, I maintain that Trump has never done anything in his life without personal profit and benefit being his end goal. Keeping that in mind, knowing that he LOST the 2020 election and that his plans to overturn those results failed, he orchestrated a plan to use his access to classified documents to achieve that end.
It is my belief (again, please remember that this is MY speculation...I do not make any claim to have any proof) that Trump is still in possession of more documents that have been relocated to his other properties (Bedminster, Doral, or possibly even some of his overseas holdings). It is my belief that his involvement with the Saudi's through the LIV golf tour has a connection to his theft of these documents, and some point in the future, this will be revealed.
I generally do not like to live in a world of "what if's" and unsubstantiated speculation, but I feel confident in offering this OPINION of the "what and why" of Trump's removal of these documents in his hurried exit from the White House. He had a plan to profit off of these and, as he has done with most every endeavor he's ever undertaken, it was executed sloppily and clumsily.
I hope I'm wrong, but I will maintain these opinions, until other explanations provide reasonable, proven explanations.
I am fascinated by the ideas you have put forward and would not be surprised if any of them turned out to be true. There is nothing that would surprise me about Trump’s behavior.
Thank you so much Joyce for helping us understand this intricate series of events. The person I loved most in the world was murdered while on protection dury as a US Marine bec a US citizen sold TSI/HSC. These events are personal for me.
I have no law degree and a lot of this soars over my head. Perhaps I should apply my old study trick of attempting to draw a diagram? Anyway, I really don't "need" to see Trump behind bars as much as I don't want to see the justice system twisted into a Gordian Knot.
If the 11th circuit agrees with DOJ, is that it? Or can Trump appeal that? Will this ever end?
I'm not a lawyer, nor would I want to be one. I'd take waterboarding instead, if you don't mind.
I guess that Trump could request expedited Supreme Court review, of a yet-unordered US Court of Appeals approval of the motion to stay the District Court, if such a stay does result. Justice Clarence Thomas, (eww!), can take this up to the Supremes. The Supreme Court can decide to accept emergency review and temporarily halt any Circuit Court stay by granting expedited Supreme Court review of the US Court of Appeals, 11th Circuit's order - if the Supreme Court would want to touch that. It’s radioactive, so they would be crazy to. But they might be crazy enough.
Meanwhile, The US Court of Appeals for the 11th Circuit could issue an EN BANC review of the DOJ motion. That means that ALL Circuit Judges are speaking as one voice, in matters that concern a matter of exceptional public importance. The US Court of Appeals for the 11th Circuit might order hearing en banc as an initial matter instead of a three judge panel hearing it first. En banc review means that the appellate court insists that their decision is particularly hewn in stone.
I’d doubt that the US Supreme Court would grant expedited review of a yet unordered Circuit Court's en banc grant of the motion to stay. Or suspend the circuit court's decision, or order a temporary stay if US Supreme Court emergency review were granted. That would be crazy. I don’t know if there’s anything like that's ever been done before., even in Bush v. Gore.
WHY such shenanigans might continue, is unthinkable. If strict American traditional juridical procedure were to be followed, the The US Court of Appeals will issue a binding stay, and throw this overloaded diaper bag of a case back into Cannon’s yard, with the command, "Hoc stercore maturescandum est!" (let this sh*t ripen a little.)
All these herky-jerky things go on without a case, not to mention even an indictment. The Constitution says courts do CASES. This seems to be just furtive rummaging. Appellate-level courts are supposed to let the process play out to completion, and then grab the principal issue on appeal.
The whole Trump/Cannon case to American court procedure, as the demolition derby is to Indy Car racing. I hope there is a helmet law for the US Court of Appeals' judges.
Wow. Lots to digest. Thanks very much for the detailed explanation and much needed humor!
Thank you, as always, for your voice of sanity in this absurd upside-down time we live in❤️
I am glad to hear Judge Dearie will have a public hearing. That is encouraging. I can’t wait until Trump is on the stand testifying under oath. I hope that happens one day. He is really shielded by having others do his talking for him. Thanks again for clarifying the law in this legal chess game.
Wow! this is so informative, Joyce. You have laid out the logic of the argument against the Trumpified Judge Cannon flawlessly. I can understand the nuances of the argument better than any sound bite could ever convey. Thank you for shining light on such a complex case with epic consequences!
Judge Cannon needs to be removed from her bench and job. How can that be accomplished?