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Judge Cannon Just Stealth Shivved The Trump Docs Case
Girl, please. We see you.
This week, Judge Aileen Cannon definitively blew up any chance that Donald Trump’s documents prosecution would go to trial before the election. The case technically remains on the calendar, but there is no way on God’s green earth that this thing will go down as scheduled on May 20, 2024. And she did it in such a sneaky way that most people missed it entirely.
In August of 2022, Judge Cannon launched a kamikaze mission to save the man who appointed her to the bench by seizing control of the documents investigation and murdering it before it could come to fruition. After shredding her professional reputation, she was slapped down in humiliating fashion by three Republican appointees to the 11th Circuit.
But when the documents indictment landed on her docket five months ago, she got another bite at the apple. And bite it she has, albeit with slightly more care about leaving giant teeth marks.
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You Can’t Hide Your Lyin’ Eyes
At first Judge Cannon played it straight — or straight-ish. She declined Trump’s request to set a trial date of NEVER, opting instead to schedule it for May of 2024. And it took her several weeks, but she did eventually issue a protective order to prevent Trump from posting sensitive discovery materials on Truth Social. She also put the kibosh on Trump’s demand to review classified evidence on the lanai at Mar-a-Lago.
But she started to show her hand when the government requested a conflicts hearing for Trump’s co-defendants Walt Nauta and Carlos De Oliveira, both of whom are represented by Trumpland lawyers paid by Trump’s Save America PAC. Those lawyers, Stan Woodward and John Irving, have both represented multiple witnesses interviewed by the special counsel in this case. But the conflict was most acute for Woodward, who previously represented Yuscil Taveras, the Mar-a-Lago tech guy whom Nauta and De Oliveira allegedly pressured to delete security camera footage of them moving around the boxes of stolen documents.
When confronted by prosecutors with evidence that Taveras had lied about this to the grand jury in DC (and that Woodward was apparently unconcerned about his client risking a perjury charge), Chief Judge James Boasberg appointed alternate counsel for Taveras, who promptly recanted and testified about the boneheaded plot. But when the special counsel presented this evidence to Judge Cannon, she dragged her feet for three months, scolding the government for presenting out-of-district evidence, and eventually signing off on Woodward and Irving staying on the case.
For a minute, it looked like Judge Cannon was gearing up to do something reversibly crazy with respect to evidence obtained by the grand jury in DC. But instead she seems to have shifted her strategy to undermining the case by weaponizing the classified evidence Trump stole and stuffed in his pool locker.
CIPA: The “Don’t Make Me Reveal Classified Evidence” Problem
Prior to passage of the Classified Information Procedures Act (CIPA), defendants were presumed to have the right to show all evidence against them to the jury and enter it on the public docket. This allowed defendants to “graymail” the government into dropping cases by threatening to publish government secrets at trial. So in 1980 Congress enacted CIPA, which sets out a multi-step process for courts to decide whether classified evidence should be shown to the defendants and eventually the jury.
Two weeks ago, Judge Cannon rebuffed a request from prosecutors to presumptively deny Nauta and De Oliveira, Trump’s body man and groundskeeper, access to the classified evidence. The argument here is that they’re charged with obstruction and false statements about the boxes, and so the precise nature of the classified evidence in the boxes is immaterial to their defense. The special counsel proposed that the evidence be shown to their counsel, who have security clearance, and then the attorneys could argue on an individualized basis for access to any particular document germane to their case. The Trump PAC lawyers huffily insisted that their clients need to see every document to adequately defend themselves, and Judge Cannon more or less agreed.
She ordered the government to make its case with respect to each document it wishes to withhold, and even suggested that she’d let the PAC lawyers participate in the CIPA § 4 hearing where the government explained why it shouldn’t have to show nuclear secrets or military war plans to Trump’s henchmen. By comparison, when Trump tried to convince Judge Tanya Chutkan to let his lawyers into the § 4 hearing in the DC election interference case, she rejected the motion out of hand, noting that “the defense identifies no case in which any court has ordered the relief they seek here, and this court is aware of none.”
Then last week, Judge Cannon denied (wink, wink) Trump’s motion to delay his trial. Instead she postponed the CIPA § 4 hearing from October 17, 2023 to February 15, 2024, a mere three months before the trial is set to start; bumped all the existing deadlines forward; and set a March 1 scheduling conference “to address remaining deadlines in a reasoned manner.” All of which is judgespeak for “I’m punting this case to March, at which point I’ll either reschedule trial citing the volume of classified evidence, or do something so batshit that prosecutors will be forced to take an interlocutory appeal to the 11th Circuit, staying the case. In either event, I’ll say it’s the special counsel’s fault.”
And Thursday she went even further, rejecting the government’s motion to schedule a hearing under CIPA § 5 for next month. Here’s what that looked like on the docket.
Boring, right? Maybe you think she’s being a little snarky about all remaining deadlines meaning all remaining deadlines, but the rest of it seems like mundane housekeeping?
In fact, Judge Cannon has guaranteed that in March, just three months before the putative trial date, there will be a knock down, drag out fight over classified evidence. This will absolutely force a postponement of this trial, if it isn’t already on hold because of something else. Because CIPA § 5 lays out a process for defendants to disclose the classified evidence they intend to present to the jury, while § 6 mandates a hearing for the government to challenge this evidence, and § 7 provides for immediate appellate review:
No defendant shall disclose any information known or believed to be classified in connection with a trial or pretrial proceeding until notice has been given under [section 5] and until the United States has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in section 6 of this Act, and until the time for the United States to appeal such determination under section 7 has expired or any appeal under section 7 by the United States is decided.
And all of that takes time.
“The reason that Section 5 has a provision for supplemental notices is because the authors of the law recognized that discovery is a dynamic and iterative process, and that Sections 5-6 in particular require a lot of time to work through so you need to get started as soon as possible and add to it as necessary,” says national security lawyer Kel McClanahan, the executive director of National Security Counselors and an adjunct professor at the George Washington University Law School.
“This is especially true for Sec. 5, where any lawyer who has ever litigated it will tell you that the defendant's first notice is always overbroad and says things like ‘all of the discovery’ or ‘every email,’ and it's often an extended process — contested heavily by defendants — to get the list down to a manageable, reasonable number of records,” McClanahan continued.
Come On, Aileen.
And if this sounds like a protracted exercise where a defendant could wring months of delay by trying to introduce mountains of irrelevant classified evidence, then you’re starting to understand what just happened here.
Judge Cannon has ensured that the most time-consuming, contentious piece of the pretrial process will not even start for another four months at least. Trump’s lawyers can now spend all winter preparing to crank up the bullshit machine in April and demand to introduce the country’s entire nuclear archive into evidence. Judge Cannon can then set a leisurely briefing schedule and then say “Oh, goshgolly, looks like the government’s objection to putting the names of every confidential informant in Russia on the public docket means we’ll have to postpone this trial.” Or perhaps she’ll say, “Yes, Donald Trump, it is only right and proper that you should be able to enter confidential DOJ personnel files into evidence,” at which point the DOJ will appeal, and she’ll say, “Too bad, so sad, the DOJ is forcing us to delay this trial until 2025.”
There are a million ways this case could get derailed, and it will.
And PS, as an added benefit of not taking this case off the calendar, Judge Cannon has made it impossible for anyone else to schedule a Trump case in May. So for instance, Trump’s false business records case in New York is currently set for trial on March 25, 2024, just three weeks after the election interference case in DC. Manhattan District Attorney Alvin Bragg has said that he’d move the trial date in deference to the federal prosecutions. But by squatting on the calendar, Cannon effectively blocks out the entire summer.
Kinda like she planned this all along, huh?
US v. Trump [SDFL Docket via Court Listener]
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