Judge Cannon Pops Off

As we always knew she would.

Yesterday, Judge Aileen Cannon made it official: Donald Trump will not stand trial for stealing government documents before the 2024 election.

After squatting on the calendar for months, conveniently ensuring that no other Trump criminal case could be scheduled for the summer, Trump’s concierge judge finally removed the May 20 trial date from her docket and rescheduled it for never. Citing the backlog of pending motions she herself had allowed to pile up, along with the mountain of garbage pleadings filed by Trump and his co-defendants Walt Nauta and Carlos De Oliveira, the court harrumphed that “finalization of a trial date at this juncture” would be “imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury.”

It was a remarkably craven order, although certainly not a surprise after watching Judge Cannon engineer this slow-motion crash since the case was assigned to her in June of 2023. She is, after all, exactly the same person who got ruthlessly slapped down by her conservative colleagues on the Eleventh Circuit when she attempted to beat the special counsel’s investigation to death with her gavel back in 2022, before he could even be indicted.

CIPA? Never met her!

Trump is charged with stealing documents relating to the national defense and refusing to give them back, in violation of 18 U.S.C. § 793(e), AKA the Espionage Act. Although it is not an element of the charges, many of those documents are marked as classified.

In the normal order of things, evidence at trial is public, or at least shown to the jury. But in 1980, Congress enacted the Classified Information Procedures Act (CIPA), codifying procedures to regulate the use of classified evidence at trial so that prosecutors wouldn’t have to choose between publishing national security secrets or dropping a case.  

Judge Cannon, who has very little experience with CIPA, has made much of the fact that this case deals with classified evidence. She required a full briefing and oral argument to decide that Trump could only examine highly classified evidence in a SCIF, rather than his preferred workspace on the lanai at Mar-a-Lago. And it took her four whole months to decide that Nauta and De Oliveira don’t need to see the highly classified documents their boss stole to defend themselves against charges of obstruction.

Since November, Judge Cannon has been engineering a bottleneck with respect to CIPA § 5(a), which requires defendants to specify which classified documents they intend to introduce at trial (and thereby show the jury), so that the government can object or propose non-confidential alternatives. Under the original scheduling order, Trump and his co-defendants were supposed to make those disclosures on November 15. But on November 3, Judge Cannon stayed all the deadlines and said they’d have a new scheduling conference on March 1. She eventually set a § 5(a) deadline for May 9, only to stay it again when Trump came back whining that he’s too busy with the false business records trial in New York to finish his homework in Florida.

This delay is especially egregious because the seized evidence contains just 77 documents total that bear classification markings, only 32 of which form the basis for the charges against Trump under the Espionage Act. Meaning that Trump wrangled himself ten months to examine 77 documents and make an up-or-down determination of whether he intends to rely on them as part of his defense.

Reviewing fewer than eight documents per month is pretty leisurely work, even for Trump’s lawyers. But counsel for co-defendants Walt Nauta and Carlos de Olivera appear to have been absolutely slothful.

On May 1, Stan Woodward, the attorney supplied to Walt Nauta’s courtesy of Trump’s PAC, filed a motion to delay the CIPA § 5(a) deadline even further, so that Nauta would have time to specify which classified documents he would like to use at trial in his defense. This provoked some side eye, since Nauta is charged with conspiracy to obstruct justice to cover up his boss’s theft of government documents, and so the actual content of the documents is irrelevant. In plain English, the jury doesn’t need to know whether the boxes contained nuclear launch codes or menus from the White House mess. The only issue is whether he and De Oliveira lied to the FBI about moving them and then trying to delete the security camera footage of them doing it. The number of classified documents which Nauta and de Olivera will likely rely on for their defense is almost certainly zero.

But Stan Woodward is a creative guy, so he argued that his client couldn’t possibly disclose the nothing on which he intends to rely within the ten-month deadline set by the Court because the documents produced by the Department of Justice are not “in the same order” as when they were when initially boxed up by the FBI as it executed the search warrant at Mar-a-Lago in August of 2022.

That the documents show signs of having been rifled through is hardly surprising. After all, it was Nauta’s co-defendant, Donald Trump who marched into Aileen Cannon’s courthouse back in 2022 and persuaded her appoint Judge Raymond Dearie as special master to conduct a privilege review to prevent the Justice Department from seeing the documents he’d stolen. That blatantly illegal outing was cut short by the 11th Circuit in December of 2022, but not before Judge Dearie prepared an index of of the documents reflecting the order they were collected.

Nauta says he can’t comply with § 5(a) until the government produces the evidence to him in the exact same order as it appears on Judge Dearie’s list. The special counsel’s office filed an opposition noting that “where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.” (Like, seriously, SHUT UP, STAN, they did not add.)

But then things went totally off the rails, because in that opposition, Jack Smith conceded that not everything was produced in discovery in the exact same order as when it was seized back in 2022, mostly because many of the boxes weren’t full, and they contained “items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried.”

Immediately afterwards, Trump’s lawyer Todd Blanche fired off a pissy letter to the Special Counsel’s office baselessly accusing the line prosecutors of failing to display even “minimal levels of professionalism and competence” as part of their “futile efforts to help President Biden make up lost ground in the polls.” The basis for this incendiary claim is the (wrong) assertion that the Special Counsel’s Office spoliated evidence and then lied to the court about it.

Spoliation is when one party either negligently or deliberately destroys relevant evidence. It is a very serious charge. Blanche claims that the government should be sanctioned for failing to “maintain the sequence of the documents within the boxes at the time they were collected.”

That’s crazy.

First, the undisputed evidence is that prosecutors didn’t spoliate the evidence of the sequence of the documents. Instead, they turned over Special Master Dearie’s index, which all parties agree is the best evidence of the original order of the documents when they were collected. There is nothing to stop Blanche from putting the documents in that order and establishing the “exculpatory information relating to, inter alia, the complete absence of culpable criminal intent by President Trump” that he screamed about in his little nastygram.

Second, even if the government had spoliated evidence of the original “sequence” —say, by destroying the index — that would be of no moment. No law or case anywhere requires the government to preserve such evidence, or even suggests that such evidence would be relevant to any defendant’s right to potentially exculpatory information from the prosecution. In support of his demand for sanctions, Blance points to a footnote in the Supreme Court’s 1995 decision in Kyles v. Whitley, 514 U.S. 419. But Kyles has nothing to do with the sequence of documentary evidence — the prosecutors in that case failed to disclose that the police had also interviewed another potential suspect. And these two things are not the same.

But allowing Trump’s lawyers to fling around baseless allegations of prosecutorial misconduct is yet another way that Judge Cannon helps Trump thwart justice. Because other judges don’t put up with this shit.

Conniving Connivers’ Connivance

Perhaps the best way to highlight Judge Cannon’s outrageous behavior is to compare it to what happens when Trump’s lawyers try this nonsense in other courtrooms.

On March 8, on the eve of the first scheduled trial date, Blanche alleged that the District Attorney of New York had committed misconduct by failing to browbeat the Justice Department into disclosing evidence in timely fashion. Justice Juan Merchan granted a 30-day delay, but scheduled a hearing within two weeks, and ordering Blanche to put up or shut up. But of course there was nothing to put up.

“You’re literally accusing the Manhattan DA's Office and the people assigned to this case of engaging in prosecutorial misconduct and of trying to make me complacent in it. And you don't have a single cite to support that position?” he scolded, excoriating Blanche for lobbing false misconduct allegations. The judge announced his decision from the bench a mere 45 minutes later, setting the trial for April 15.

Similarly, when Blanche spammed the docket with frivolous press releases disguised as legal motions, Justice Merchan ordered the parties to stop filing anything without permission of the court. And when Blanche tried to argue that Trump hadn’t violated the gag order by quote-posting other people’s attacks on witnesses and jurors, Justice Merchan shut him down with a warning that he was “losing all credibility” with the court.

But in Judge Cannon’s courtroom, Blanche can file a raft of duplicative motions, leveling the most incendiary allegations, safe in the knowledge that he’ll never face so much as a scolding. Indeed, even if he loses, he’ll be able to extract weeks of delay as the judge treats every frivolous pleading as if it presents a serious legal question requiring multiple rounds of briefing and a lengthy oral argument.

But Judge Cannon’s in-kind contributions to the Trump campaign go beyond just delaying the trial. By dignifying his bad faith misconduct allegations with judicial consideration, she allows Trump to launder his baseless claims into the news cycle.

So on May 3rd, Trump accused the special counsel of “blatant evidence tampering” based on the “out of order” documents: 

Then disgraced former Hill editor John Solomon breathlessly reported that Jack Smith and his team, in a “stunning admission,” had “altered or manipulated evidence” in the documents case, “misled the court” about it, and that it would “be a serious problem for prosecutors.”

Which is horseshit! But the longer Judge Cannon takes to rule, and the more time she devotes to it, the more she lends her own judicial gravamen to the preposterous Trump campaign fiction that Jack Smith is a “deranged” prosecutor bringing a baseless case to derail Trump’s election prospects with WITCH HUNT BOXES HOAXES.

Come on, Aileen

In 1973, Richard Nixon stood at a podium in Walt Disney World and defended his innocence.

“People have got to know whether or not their president is a crook,” he snarled. “Well, I’m not a crook.”

But of course, he was a crook, and he resigned in disgrace less than a year later.

Nixon was half right, though. Because the people have got to know whether their president is a crook. But thanks to Judge Aileen Cannon, who managed to delay the indictment itself and has now postponed the trial indefinitely, the people will go to the polls without some very important information. And, worse still, the judge has lent credence to Trump’s claim that the prosecutor coming after him is the real crook.

Kind of like she planned to do this all along, huh?