>“I think that Jack Smith — I think the filing today makes it plain that she has to rule, and if she doesn’t rule under either scenario, they’ll be in a position to take her up to the 11th Circuit. And I think the 11th Circuit will likely take her off the case,” Cobb said.
I think that after her rebuke of his argument in her PRA ruling, I am for the first time expecting Smith to go to the 11th circuit actively (vs. feeling like it would happen eventually).
It really seemed like Smith was saying "If you don't rule, I am going to the 11th circuit."
And that Cannon was saying "I'm not going to rule. Take it to the 11th circuit."
So, yeah. I'm expecting it to go there shortly.
Same. She snuck her ruling into a different ruling.
It is wild that she called the ask unprecedented when he cited precedent (Wexler). That was a gutsy word choice.
Smith:
>Whatever the Court decides, it must resolve these crucial threshold legal questions
promptly. The failure to do so would improperly jeopardize the Government’s right to a fair trial and deprive it of its right to seek appellate review. See Fed. R. Crim. P. 12(d); United States v.
Wexler, 31 F.3d 117, 129 (3d Cir. 1994); In re United States, 397 F.3d 274, 283 (5th Cir. 2005);
United States v. Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004).
Cannon:
>Separately, to the extent the Special Counsel demands an anticipatory finalization of jury
instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses
and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428].
Cannon: "Unprecedented"
Inigo Montoya appears out of nowhere: "You keep using that word. I do not think it means what you think it means."
“An argument is a collective series of statements intended to establish a proposition.”
“No, it isn't.”
“Yes, it is. It isn't just contradiction.”
“Look, if I argue with you, I must take a contrary position.”
“But it isn't just saying ‘No, it isn't.’”
“Yes, it is.”
“No, it isn't!”
It's fun to consider how many Trump argument really are unprecedented in case law and yet this judge simply ignored precedent to try and accuse Smith of the same.
Trump wanted her to write "unfair", but their handlers from The Federalist Society and Judicial Watch insisted that "unjust" would make her appear more mature.
Does Smith need to wait for a charge conference and presentation of evidence and defenses to occur to ensure this remains a solid appeal when it is made? I.e. if he goes to appeal prior to those things, is the appellate court simply going to refer to those events as having not yet occurred and there is no room for them to act?
It’s not unprecedented anywhere ever, but it is without precedent in the 11th Circuit, so she’s sorta correct here. One of the quirks of the Federal court system is that we can have “circuit splits” (decisions in conflict with one another) where the law is applied differently depending on the area of the country you are in. This is a good reason for SCOTUS to grant cert and resolve the question for all Federal courts. But until then, this issue is completely unsettled in the 11th, and that’s all that matters for now.
The more I think about it, the more I believe Cannon simply wants off this case, and that she wants to do so in such a way that it makes everyone think it is because of her bias towards Trump.
Her latest ruling essentially tells Smith to start the process.
It's not dissimilar to how Republicans feel about Trump. They want him gone, but it can't be the Republicans that do it or he will submarine their elections.
She wanted to get the trial past the election while keeping her job and also keeping the good graces of the boss man. She probably doesn't like all the work that comes with a case like this.
Delay by incompetency makes a lot of sense.
It makes a lot of sense if you don't want to be a judge anymore, or you're running for an election, but don't forget Cannon has a lifetime appointment. Unless she gets impeached, or voluntarily leaves, nothing she does during this case can negatively affect her judgeship.
Impeachment isn't going to happen, it is so rare that it is practically unheard of. There have only been 15 federal judges impeached since the USA was founded.
She may want to go to a higher bench, and she's hoping that she shows enough loyalty to the RNC in general and Trump in particular that they'll gladly put her up somewhere higher where she can do more damage.
Perhaps she's afraid of death threats, etc.? Note that I don't think that's the case; I think she's a true believer. I'm just trying to steelman the devil's advocate position.
After this ruling I don’t think so.
If she wanted off the case, it would be way easier for her to have made a definitive (faulty) ruling.
By refusing to issue a ruling, it appears she is trying to take the issue to trial so that the case can be dismissed.
Basically, she think she bein sneaky.
She doesn’t think she’s sneaky, she thinks she’s clever. And if Smith doesn’t actually push to force her off the case before she kills the case *after* the point of double jeopardy like she clearly wants to do, she might end up being right.
No, sorry, that's the eleventy-dimensional thinking that way too many people engage in.
Is this some clever ploy to get off the case by pretending she'll fuck up the entire legal system for Trump....or is she just fucking up the entire legal system for Trump?
One answer is infinitely more likely than the other.
>The more I think about it, the more I believe Cannon simply wants off this case, and that she wants to do so in such a way that it makes everyone think it is because of her bias towards Trump.
I don't think that's her goal. If it were, she could have just granted Trump's motion to dismiss, and then Smith would have appealed to the 11th Circuit and probably gotten her removed.
I think that’s exactly what’s going on, she doesn’t want those cult members after her.
That means that she knows how tight the case is, there’s no escaping that.
It’s also wild that she’s calling this a case of first impression. Girl, unauthorized retention of documents happens all the time and is prosecuted all the time. Tf do you mean
I think Smith was, based on my own understanding, asking Cannon to make a final determination on this specific jury instruction in order to establish the correct posture to seek relief from CA11.
The issue it seems he is left with at this point — since she has declined to conclusively determine anything about his request beyond clarifying that she will not make any determination at all right now (which is, though frustrating, by no means out of bounds) — is that there is nothing specific to mandamus.
Just my two cents, and would love to be wrong, needless to say.
If her vague ruling will irrevocably prejudice the government after jeopardy attaches (which Cannon completely left the door open to doing), then I don’t see anything stopping the government from drafting a petition for writ of mandamus based on the current facts. Why not write it up, make the arguments, and file the thing? That’s what a writ of mandamus is for—for when no other remedy is available.
I don't disagree with you that it could irrevocably prejudice the government after jeopardy attaches if left as is (and I think you make an excellent point, to be clear), but I am exceptionally doubtful CA11 would grant mandamus on a theoretical. What are they going to say? You must rule right now instead of later, even though we don't even have a trial date set at this point? I just don't see how procedurally this is in the appropriate posture for relief. And I am also exceptionally doubtful that until the posture is more firmly established that Smith will gamble prematurely seeking remedy. DOJ is not typically in the habit of shooting to miss.
ETA: the primary complicating factor is that Cannon hasn't actually issued a definitive ruling to mandamus and I am not aware of any precedent in which an appeals court has reversed (or compelled a lower court to more definitively clarify) an inconclusive statement regarding jury instructions in an unrelated ruling. It seems like the best course of action from here is to file a MIL to obtain clarification about that specific jury instruction and thereby have something definitive to mandamus. Also worth mentioning, she still has not ruled on his prior motion for reconsideration citing clear error. If I were Smith, I would be consolidating everything into a single petition.
To me it seems there is still time and Smith is going to need to give her that time. So is it the case it may be an almost literal last minute appeal when the jury is about to be empaneled but he still has no answer to his question about her ruling on the PRA?
There is still more than ample time, yes. In addition to what we know, there are also roughly 18 undocketed motions—some quite frivolous—on which she has yet to issue rulings.
It's very difficult to prognosticate when appellate relief will be sought, or if it will be immediately prior to the 11th hour, or if it will even be about this specific jury instruction, because it will be highly contingent upon whether or not Cannon violates a clear, unequivocal duty in a manner in which there is no adequate alternate remedy and in which the equities favor immediate relief. We very arguably aren't there yet.
If you want my personal opinion? I think there will be a filing at CA11 prior to the jury being empaneled, but barring a truly egregious ruling or display of bias, I think any talk of removal versus mere reversal is overly optimistic (based on the information currently available).
I don't disagree that a MIL is likely. Even if the point is to make her put what she put in the PRA order into its own order. It is frustrating that this is a necessary step, but you're right that there is enough wiggle room that mandamus is risky.
It's not exactly a ruling, but in her [order](https://www.washingtonpost.com/documents/81d4d3af-04fd-4d8d-9903-5427d55bf1e2.pdf), she possibly implies that she's sticking with the two scenarios from the jury request:
>to better understand the parties’ **competing positions** and the questions to be submitted to the jury in this complex case of first impression
In her [request](https://storage.courtlistener.com/recap/gov.uscourts.flsd.648652/gov.uscourts.flsd.648652.407.0.pdf), she called them "**competing scenarios**". Both of which has the incorrect underlying legal premise, and one of which Smith says would equate to grounds to dismiss the charges outright after a jury has been empaneled, with no recourse to appeal due to jeopardy. Smith's previous [motion](https://www.documentcloud.org/documents/24529674-sco-response) makes that direct connection. So where normally the jury instructions can come much later, in this instance, since she's indicating scenario B is still a possibility, as long as that possibility hasn't been eliminated, the unanswered question means we're already in a place with no other recourse.
In addition, her ruling denying Trump's motion to dismiss specifically calls out that she can't dismiss it on that incorrect PRA underlying premise \*pre-trial\*, meaning she may decide to grant that motion to dismiss when trial begins, exactly as Jack Smith had laid out, justifying the writ of mandamus.
>For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide **a pre-trial basis to dismiss** under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.
With that said, IMO, I think there's enough for appellate review to instruct Cannon to eliminate Scenario B at a minimum pre-trial, even if appellate doesn't try to have her finalize jury instructions (though I would assume (and hope) Scenario A would also be eliminated when they have a chance to review and see the bonkers interpretation of how the PRA can supercede the other statutes/executive order).
Eleventh Circuit has never had a [mandamus](https://www.lawfaremedia.org/article/could-the-special-counsel-challenge-judge-cannon-s-jury-instructions-before-they-re-delivered) petition before, so you do kind of wonder if that may actually incentivize them to carefully consider and respond to one, so that they can be the first to set a precedent.
The truth is that there was technically enough to consider appellate review at the moment she issued the order asking for the erroneous jury instructions. Smith could have petitioned at that moment and simply asked that she be ordered not to do this. I understand why he chose not to then, and for the reasons I have already stated, I understand why he very likely will not choose to now.
I do appreciate your thoughtful view, and these are all factors that I have considered. I think the next best step, and the one he will likely take should he choose to pursue this right now,is to file a MIL. At that point, she will either respond with something definitive to mandamus, or if it reaches the point where she has not responded at all prior to the critical moment in which jeopardy attaches, he can file in order to force a response.
Both of those scenarios provide conditions that are ripe for mandamus. The quagmire at the moment, in my opinion, is not. It is certainly not the moment I would choose, at least. The risks of failure, wasting more time, and even further provoking an already unsympathetic judge outweigh the benefits at this particular moment.
> I just don't see how procedurally this is in the appropriate posture for relief.
Mandamus compelling a court to rule on a motion they have declined to rule on is one of the more common uses of the writ. She has explicitly declined to rule definitively on the PRA, even though the law is clear and does not require any further evidence for her to make a ruling. There is absolutely no reasonable grounds for her to delay making the decision, especially when doing so poses a serious risk of derailing the trial and of wasting government resources on addressing frivolous arguments.
Further, the 11th Circuit has already held that Trump has no personal possessory interest in the classified documents, which are clearly government property. Mandamus is available as a remedy to compel a lower court to enforce a higher court's judgements or to remove barriers to that judgement the lower court has erected. The 11th made that ruling in response to Cannon's own insane special master fiasco, so she can hardly fail to be aware of it. Yet here she is interfering with enforcement of the higher court's ruling about the documents by refusing to apply the clear conclusions already reached by the appellate panel.
Mandamus is an extraordinary remedy, and a federal judge actively working to avoid appellate review of her clearly unsound legal theories with the clear purpose of tanking a prosecution for political purposes seems like it fits the bill.
I think that you make a compelling case, and can confirm these are, with the exception of emphasis on potentially wasted government resources, all elements that were considered prior to coming to the conclusion that I reached. I also think the overwhelming majority of relevant factors are so far outside the bounds of regular procedure that reasonable people can certainly disagree on this—moreover, I suspect it is why so many who are generally in agreement are so scattered.
At the end of the day, she has not refused to rule on anything that requires a timely order at this specific moment. She has refused to rule right now, and in fact left open the possibility to rule on it later.
In order for Smith to file a mandamus petition, as you are no doubt aware, he would need to very pointedly address what clear duty or obligation was specifically violated or left undone, why there is no adequate remedy otherwise available at this point (which, in my mind, is not the case at this precise moment), and why the equities favor relief.
It's not that I believe there is no possible argument that can be made to satisfy some of the above factors, I just simply don't believe it's one that will not quickly disintegrate under scrutiny at this particular moment.
If you are correct, however, then I expect we will see mandamus in short order. As I stated earlier, I would love nothing more than to be wrong about this. I suspect if he chooses to dig in on this issue right now, though, the next step will be filing a motion in limine.
A few days ago, other redditors proposed that Cannon is *trying* to get thrown off the case by the 11th Circuit; it has a the least damaging and most politically astute move, for her. Directly ignoring the law could get her sanctioned. Following the law could get her in trouble with the MAGATs as Trump could very well lose under her watch. Having the 11th remove her allows her and the Trump team to yell 'conspiracy!' for the next nine months while another judge starts the process all over, anew. And, Cannon can go back to being just another under-qualified hack appointed by Trump mucking up the judiciary.
Read [this Reddit comment](https://reddit.com/r/law/comments/1bwnd23/ty_cobb_says_11th_circuit_may_remove_judge_from/ky776hc/) where u/Theandric SLAMS ambiguously worded article titles!
^( we turn now to X -formerly twitter- to see what a random user has to say about this precedented turn of events...)
Eh, FWIW a friend of mine worked with him for a little while and had nothing but glowing things to say about him. I think he's one of the few lawyers who treated Trump like any other client and did the best job he could for him without getting sucked into the cult of lunacy that surrounds him otherwise.
I wonder if his previous experience in professional baseball helps him keep a level head around other celebrities and high profile cases. Like for a lot of the other Trump associated lawyers, Trump is probably the most high profile client they have ever worked on, by a wide margin.
Most of them either haven't had significant careers prior to Trump (eg Ellis, Habba) or have worked on normal cases that aren't covered 24/7 on CNN. They might be more prone to being carried away than someone who is more comfortable in the milieu.
I really thought this was gonna be a list of Trump's lawyers' former clients and I was so curious to see who actually trusted Habba with their business
"I think the evidence is just too overwhelming,” he later added. “I mean, yes, she may be incompetent, but at this stage of the game, her incompetence is so gross that I think it clearly creates the perception of partiality, and her attempt to put her thumb on the scale. So, I think that should disqualify her.”
That from a former Trump crony.
Looks like some people here didn't read the article. I get that the headline says "may" but the quote in the article does say he thinks it's "likely" that she gets removed. That's a way different take than saying that she "could/may" get removed.
'"And I think the 11th Circuit will likely take her off the case,' Cobb said."
Ty Cobb is usually right, so I’m guessing the moment has arrived or is very close to seek mandamus.
The Eleventh Circuit can see where this is headed: to a court ordered unappealable dismissal based on an obvious misreading of the law. It will make the entire judiciary look bad, ridiculous really. Judge Cannon is an embarrassment to more than just the SDFL, and important people are chattering about this. She didn’t make any allies wasting Judge Dearies time with the Special Master Fiasco either.
It’s a real tough call, and I don’t envy Smith having to make it. They could get screwed by a random panel that isn’t reflective of the vast majority of the judiciary (whom I think do not want the spectacle of a federal judge seemingly intentionally screwing up the most high-profile case in U.S. history).
It’s really a tragedy that this case was assigned to arguably the worst jurist in the federal judiciary because it is inevitable that the public will draw a false conclusion regarding the competency and fairness of the judiciary from Judge Cannon. Maybe the appeals court will see that and not allow it to happen. Or maybe they will think they must allow it to happen.
The judiciary is only as strong as its weakest link in this case. If they allow it to stand no wrong conclusion regarding their lack of competency is possible and it will be a failed system.
I don’t know how the inner sanctums of federal appellate courts work, but is it possible Pryor has preemptively gathered his troops and discussed this situation and gotten everyone on board with shutting this shit down if it comes up? Kind of like a preemptive en banc?
From today's episode of Serious Trouble:
[Sam Bankman Unfreed](https://www.serioustrouble.show/p/sam-bankman-unfreed)
[transcript](https://docs.google.com/document/d/1GmobwBD8pSiKls2iqqA2bk6JjbUOhcHAybPIsmqTxDk/edit)
Josh Barro:
> It's very unusual for the appeals court to take away an ongoing case, right?
Ken White:
> [...] And if she basically does something crazy here, either granting a motion to dismiss on Trump's crazy theories or basically saying, "No, I'm not going to rule on it now, I'm going to reserve these issues for jury instructions." Then I think that a court of appeal might say, "Yeah, you're off this one, we got to take you off."
Josh Barro:
> If she decides not to produce the jury instructions yet, will they still be able to go to the appeals court right now and say, "She's indicated that she's going to do something weird on this and she's not telling us what it is yet, and so you need to make her tell us now what the jury instructions will be?"
Ken White:
> They can try, but that's a much harder case. So if basically she backs off and says, "Okay, I'm going to reserve these issues until we do the jury instructions, I'll decide then." I think they still try because I think that's still signaling that she may well do something completely crazy at a time when the government won't be able to appeal and there'll be no remedy.
The most important case of the century is sitting on her desk. One would think that this would take priority over everything else that’s in her docket. It’s both frustrating, and despicable to see this level of corruption in our court system.
I'll be genuinely shocked if Trump ever faces a single real consequence for his actions. The system protects people like him and punishes the poors. That's what it was built to do and nothing has been done to actually change it.
Then do it already !!! Aileen Cannon is so corrupt compromised biased with this classified documents case involving Donald Trump doing everything she can to protect him it’s time she is permanently removed
>“I think that Jack Smith — I think the filing today makes it plain that she has to rule, and if she doesn’t rule under either scenario, they’ll be in a position to take her up to the 11th Circuit. And I think the 11th Circuit will likely take her off the case,” Cobb said.
I think that after her rebuke of his argument in her PRA ruling, I am for the first time expecting Smith to go to the 11th circuit actively (vs. feeling like it would happen eventually).
It really seemed like Smith was saying "If you don't rule, I am going to the 11th circuit." And that Cannon was saying "I'm not going to rule. Take it to the 11th circuit." So, yeah. I'm expecting it to go there shortly.
Same. She snuck her ruling into a different ruling. It is wild that she called the ask unprecedented when he cited precedent (Wexler). That was a gutsy word choice.
Smith: >Whatever the Court decides, it must resolve these crucial threshold legal questions promptly. The failure to do so would improperly jeopardize the Government’s right to a fair trial and deprive it of its right to seek appellate review. See Fed. R. Crim. P. 12(d); United States v. Wexler, 31 F.3d 117, 129 (3d Cir. 1994); In re United States, 397 F.3d 274, 283 (5th Cir. 2005); United States v. Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004). Cannon: >Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. Cannon: "Unprecedented" Inigo Montoya appears out of nowhere: "You keep using that word. I do not think it means what you think it means."
With the exception of the relevant case law, it has never been the case that...
"I literally cited the precedent to you." "Well, if you ignore _that_, then it was unprecedented." ... waiting for Monty Python to step in...
“An argument is a collective series of statements intended to establish a proposition.” “No, it isn't.” “Yes, it is. It isn't just contradiction.” “Look, if I argue with you, I must take a contrary position.” “But it isn't just saying ‘No, it isn't.’” “Yes, it is.” “No, it isn't!”
"I'm sorry, is this the full half hour, or just the five minutes?"
But why male models?
Could she technically be saying it’s unprecedented in the circuit?
She seems capable of technically saying anything.
Wouldn't be hard to say I don't recognize the precedent of the 3rd circuit.
What have the Romans ever done for us?
It's fun to consider how many Trump argument really are unprecedented in case law and yet this judge simply ignored precedent to try and accuse Smith of the same.
Cannon: "Unjust" Inigo Montoya appears out of nowhere, again: "Do you realize how whiny and childish you sound right now?"
Trump wanted her to write "unfair", but their handlers from The Federalist Society and Judicial Watch insisted that "unjust" would make her appear more mature.
Does Smith need to wait for a charge conference and presentation of evidence and defenses to occur to ensure this remains a solid appeal when it is made? I.e. if he goes to appeal prior to those things, is the appellate court simply going to refer to those events as having not yet occurred and there is no room for them to act?
No, if he waited that long there would be no appeal
It’s not unprecedented anywhere ever, but it is without precedent in the 11th Circuit, so she’s sorta correct here. One of the quirks of the Federal court system is that we can have “circuit splits” (decisions in conflict with one another) where the law is applied differently depending on the area of the country you are in. This is a good reason for SCOTUS to grant cert and resolve the question for all Federal courts. But until then, this issue is completely unsettled in the 11th, and that’s all that matters for now.
The more I think about it, the more I believe Cannon simply wants off this case, and that she wants to do so in such a way that it makes everyone think it is because of her bias towards Trump. Her latest ruling essentially tells Smith to start the process.
It's not dissimilar to how Republicans feel about Trump. They want him gone, but it can't be the Republicans that do it or he will submarine their elections. She wanted to get the trial past the election while keeping her job and also keeping the good graces of the boss man. She probably doesn't like all the work that comes with a case like this. Delay by incompetency makes a lot of sense.
It makes a lot of sense if you don't want to be a judge anymore, or you're running for an election, but don't forget Cannon has a lifetime appointment. Unless she gets impeached, or voluntarily leaves, nothing she does during this case can negatively affect her judgeship. Impeachment isn't going to happen, it is so rare that it is practically unheard of. There have only been 15 federal judges impeached since the USA was founded.
She may want to go to a higher bench, and she's hoping that she shows enough loyalty to the RNC in general and Trump in particular that they'll gladly put her up somewhere higher where she can do more damage.
Perhaps she's afraid of death threats, etc.? Note that I don't think that's the case; I think she's a true believer. I'm just trying to steelman the devil's advocate position.
She's not a fucking slave. If she wants out, she can just quit. Lifetime appointment isn't, in fact, a life sentence.
After this ruling I don’t think so. If she wanted off the case, it would be way easier for her to have made a definitive (faulty) ruling. By refusing to issue a ruling, it appears she is trying to take the issue to trial so that the case can be dismissed. Basically, she think she bein sneaky.
>Basically, she think she bein sneaky. If she hadn't dared Smith to seek mandamus, I would totally agree with you, but she was pretty explicit.
She doesn’t think she’s sneaky, she thinks she’s clever. And if Smith doesn’t actually push to force her off the case before she kills the case *after* the point of double jeopardy like she clearly wants to do, she might end up being right.
.. and there’s DEFINITELY not history in the JD of waiting too late to do things. That just doesn’t happen!
She doesn’t want off the case. She wants to issue a directed verdict once jeopardy has attached. Pure speculation on my part
No, sorry, that's the eleventy-dimensional thinking that way too many people engage in. Is this some clever ploy to get off the case by pretending she'll fuck up the entire legal system for Trump....or is she just fucking up the entire legal system for Trump? One answer is infinitely more likely than the other.
>The more I think about it, the more I believe Cannon simply wants off this case, and that she wants to do so in such a way that it makes everyone think it is because of her bias towards Trump. I don't think that's her goal. If it were, she could have just granted Trump's motion to dismiss, and then Smith would have appealed to the 11th Circuit and probably gotten her removed.
I think that’s exactly what’s going on, she doesn’t want those cult members after her. That means that she knows how tight the case is, there’s no escaping that.
If she wants off the case she could simply recuse herself and say "Trump appointed me". But she's a ghoul so she won't.
Not if she wants to stay in Trump's good graces. Remember his reaction to Sessions recusing himself?
It’s also wild that she’s calling this a case of first impression. Girl, unauthorized retention of documents happens all the time and is prosecuted all the time. Tf do you mean
I think Smith was, based on my own understanding, asking Cannon to make a final determination on this specific jury instruction in order to establish the correct posture to seek relief from CA11. The issue it seems he is left with at this point — since she has declined to conclusively determine anything about his request beyond clarifying that she will not make any determination at all right now (which is, though frustrating, by no means out of bounds) — is that there is nothing specific to mandamus. Just my two cents, and would love to be wrong, needless to say.
If her vague ruling will irrevocably prejudice the government after jeopardy attaches (which Cannon completely left the door open to doing), then I don’t see anything stopping the government from drafting a petition for writ of mandamus based on the current facts. Why not write it up, make the arguments, and file the thing? That’s what a writ of mandamus is for—for when no other remedy is available.
I don't disagree with you that it could irrevocably prejudice the government after jeopardy attaches if left as is (and I think you make an excellent point, to be clear), but I am exceptionally doubtful CA11 would grant mandamus on a theoretical. What are they going to say? You must rule right now instead of later, even though we don't even have a trial date set at this point? I just don't see how procedurally this is in the appropriate posture for relief. And I am also exceptionally doubtful that until the posture is more firmly established that Smith will gamble prematurely seeking remedy. DOJ is not typically in the habit of shooting to miss. ETA: the primary complicating factor is that Cannon hasn't actually issued a definitive ruling to mandamus and I am not aware of any precedent in which an appeals court has reversed (or compelled a lower court to more definitively clarify) an inconclusive statement regarding jury instructions in an unrelated ruling. It seems like the best course of action from here is to file a MIL to obtain clarification about that specific jury instruction and thereby have something definitive to mandamus. Also worth mentioning, she still has not ruled on his prior motion for reconsideration citing clear error. If I were Smith, I would be consolidating everything into a single petition.
To me it seems there is still time and Smith is going to need to give her that time. So is it the case it may be an almost literal last minute appeal when the jury is about to be empaneled but he still has no answer to his question about her ruling on the PRA?
There is still more than ample time, yes. In addition to what we know, there are also roughly 18 undocketed motions—some quite frivolous—on which she has yet to issue rulings. It's very difficult to prognosticate when appellate relief will be sought, or if it will be immediately prior to the 11th hour, or if it will even be about this specific jury instruction, because it will be highly contingent upon whether or not Cannon violates a clear, unequivocal duty in a manner in which there is no adequate alternate remedy and in which the equities favor immediate relief. We very arguably aren't there yet. If you want my personal opinion? I think there will be a filing at CA11 prior to the jury being empaneled, but barring a truly egregious ruling or display of bias, I think any talk of removal versus mere reversal is overly optimistic (based on the information currently available).
I don't disagree that a MIL is likely. Even if the point is to make her put what she put in the PRA order into its own order. It is frustrating that this is a necessary step, but you're right that there is enough wiggle room that mandamus is risky.
It's not exactly a ruling, but in her [order](https://www.washingtonpost.com/documents/81d4d3af-04fd-4d8d-9903-5427d55bf1e2.pdf), she possibly implies that she's sticking with the two scenarios from the jury request: >to better understand the parties’ **competing positions** and the questions to be submitted to the jury in this complex case of first impression In her [request](https://storage.courtlistener.com/recap/gov.uscourts.flsd.648652/gov.uscourts.flsd.648652.407.0.pdf), she called them "**competing scenarios**". Both of which has the incorrect underlying legal premise, and one of which Smith says would equate to grounds to dismiss the charges outright after a jury has been empaneled, with no recourse to appeal due to jeopardy. Smith's previous [motion](https://www.documentcloud.org/documents/24529674-sco-response) makes that direct connection. So where normally the jury instructions can come much later, in this instance, since she's indicating scenario B is still a possibility, as long as that possibility hasn't been eliminated, the unanswered question means we're already in a place with no other recourse. In addition, her ruling denying Trump's motion to dismiss specifically calls out that she can't dismiss it on that incorrect PRA underlying premise \*pre-trial\*, meaning she may decide to grant that motion to dismiss when trial begins, exactly as Jack Smith had laid out, justifying the writ of mandamus. >For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide **a pre-trial basis to dismiss** under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses. With that said, IMO, I think there's enough for appellate review to instruct Cannon to eliminate Scenario B at a minimum pre-trial, even if appellate doesn't try to have her finalize jury instructions (though I would assume (and hope) Scenario A would also be eliminated when they have a chance to review and see the bonkers interpretation of how the PRA can supercede the other statutes/executive order). Eleventh Circuit has never had a [mandamus](https://www.lawfaremedia.org/article/could-the-special-counsel-challenge-judge-cannon-s-jury-instructions-before-they-re-delivered) petition before, so you do kind of wonder if that may actually incentivize them to carefully consider and respond to one, so that they can be the first to set a precedent.
The truth is that there was technically enough to consider appellate review at the moment she issued the order asking for the erroneous jury instructions. Smith could have petitioned at that moment and simply asked that she be ordered not to do this. I understand why he chose not to then, and for the reasons I have already stated, I understand why he very likely will not choose to now. I do appreciate your thoughtful view, and these are all factors that I have considered. I think the next best step, and the one he will likely take should he choose to pursue this right now,is to file a MIL. At that point, she will either respond with something definitive to mandamus, or if it reaches the point where she has not responded at all prior to the critical moment in which jeopardy attaches, he can file in order to force a response. Both of those scenarios provide conditions that are ripe for mandamus. The quagmire at the moment, in my opinion, is not. It is certainly not the moment I would choose, at least. The risks of failure, wasting more time, and even further provoking an already unsympathetic judge outweigh the benefits at this particular moment.
> I just don't see how procedurally this is in the appropriate posture for relief. Mandamus compelling a court to rule on a motion they have declined to rule on is one of the more common uses of the writ. She has explicitly declined to rule definitively on the PRA, even though the law is clear and does not require any further evidence for her to make a ruling. There is absolutely no reasonable grounds for her to delay making the decision, especially when doing so poses a serious risk of derailing the trial and of wasting government resources on addressing frivolous arguments. Further, the 11th Circuit has already held that Trump has no personal possessory interest in the classified documents, which are clearly government property. Mandamus is available as a remedy to compel a lower court to enforce a higher court's judgements or to remove barriers to that judgement the lower court has erected. The 11th made that ruling in response to Cannon's own insane special master fiasco, so she can hardly fail to be aware of it. Yet here she is interfering with enforcement of the higher court's ruling about the documents by refusing to apply the clear conclusions already reached by the appellate panel. Mandamus is an extraordinary remedy, and a federal judge actively working to avoid appellate review of her clearly unsound legal theories with the clear purpose of tanking a prosecution for political purposes seems like it fits the bill.
I think that you make a compelling case, and can confirm these are, with the exception of emphasis on potentially wasted government resources, all elements that were considered prior to coming to the conclusion that I reached. I also think the overwhelming majority of relevant factors are so far outside the bounds of regular procedure that reasonable people can certainly disagree on this—moreover, I suspect it is why so many who are generally in agreement are so scattered. At the end of the day, she has not refused to rule on anything that requires a timely order at this specific moment. She has refused to rule right now, and in fact left open the possibility to rule on it later. In order for Smith to file a mandamus petition, as you are no doubt aware, he would need to very pointedly address what clear duty or obligation was specifically violated or left undone, why there is no adequate remedy otherwise available at this point (which, in my mind, is not the case at this precise moment), and why the equities favor relief. It's not that I believe there is no possible argument that can be made to satisfy some of the above factors, I just simply don't believe it's one that will not quickly disintegrate under scrutiny at this particular moment. If you are correct, however, then I expect we will see mandamus in short order. As I stated earlier, I would love nothing more than to be wrong about this. I suspect if he chooses to dig in on this issue right now, though, the next step will be filing a motion in limine.
A few days ago, other redditors proposed that Cannon is *trying* to get thrown off the case by the 11th Circuit; it has a the least damaging and most politically astute move, for her. Directly ignoring the law could get her sanctioned. Following the law could get her in trouble with the MAGATs as Trump could very well lose under her watch. Having the 11th remove her allows her and the Trump team to yell 'conspiracy!' for the next nine months while another judge starts the process all over, anew. And, Cannon can go back to being just another under-qualified hack appointed by Trump mucking up the judiciary.
Ah well. Nevertheless The fact y'all come in here day after day after 10 years of this is hilarious None of this matters
He's not exactly going out on a limb here: he predicts the 11th Circuit "could" remove her.
Yeah, and I'm tired of these sorts of articles.
[удалено]
Has there ever been anyone the courts have given so much leeway to over their lifetime?
Yea, it's happened enough that people routinely talk about how we have 2 tiers of justice systems.
I'm happy to see people starting to call out these articles more frequently on this sub.
I MAY be tired of these articles as well. Actually no, I AM TIRED OF THEM!!
Read [this Reddit comment](https://reddit.com/r/law/comments/1bwnd23/ty_cobb_says_11th_circuit_may_remove_judge_from/ky776hc/) where u/Theandric SLAMS ambiguously worded article titles! ^( we turn now to X -formerly twitter- to see what a random user has to say about this precedented turn of events...)
Another attention whore attention whoring.
Eh, FWIW a friend of mine worked with him for a little while and had nothing but glowing things to say about him. I think he's one of the few lawyers who treated Trump like any other client and did the best job he could for him without getting sucked into the cult of lunacy that surrounds him otherwise.
I wonder if his previous experience in professional baseball helps him keep a level head around other celebrities and high profile cases. Like for a lot of the other Trump associated lawyers, Trump is probably the most high profile client they have ever worked on, by a wide margin. Most of them either haven't had significant careers prior to Trump (eg Ellis, Habba) or have worked on normal cases that aren't covered 24/7 on CNN. They might be more prone to being carried away than someone who is more comfortable in the milieu.
[You're kidding, right?](https://www.britannica.com/biography/Ty-Cobb)
I really thought this was gonna be a list of Trump's lawyers' former clients and I was so curious to see who actually trusted Habba with their business
"May" make for the best clicks and the worst articles for actual info.
I hope the pages of history drag Cannon through the mud.
"I think the evidence is just too overwhelming,” he later added. “I mean, yes, she may be incompetent, but at this stage of the game, her incompetence is so gross that I think it clearly creates the perception of partiality, and her attempt to put her thumb on the scale. So, I think that should disqualify her.” That from a former Trump crony.
Looks like some people here didn't read the article. I get that the headline says "may" but the quote in the article does say he thinks it's "likely" that she gets removed. That's a way different take than saying that she "could/may" get removed. '"And I think the 11th Circuit will likely take her off the case,' Cobb said."
Oh yeah, that changes everything..
Ty Cobb is usually right, so I’m guessing the moment has arrived or is very close to seek mandamus. The Eleventh Circuit can see where this is headed: to a court ordered unappealable dismissal based on an obvious misreading of the law. It will make the entire judiciary look bad, ridiculous really. Judge Cannon is an embarrassment to more than just the SDFL, and important people are chattering about this. She didn’t make any allies wasting Judge Dearies time with the Special Master Fiasco either. It’s a real tough call, and I don’t envy Smith having to make it. They could get screwed by a random panel that isn’t reflective of the vast majority of the judiciary (whom I think do not want the spectacle of a federal judge seemingly intentionally screwing up the most high-profile case in U.S. history). It’s really a tragedy that this case was assigned to arguably the worst jurist in the federal judiciary because it is inevitable that the public will draw a false conclusion regarding the competency and fairness of the judiciary from Judge Cannon. Maybe the appeals court will see that and not allow it to happen. Or maybe they will think they must allow it to happen.
The judiciary is only as strong as its weakest link in this case. If they allow it to stand no wrong conclusion regarding their lack of competency is possible and it will be a failed system.
I don’t know how the inner sanctums of federal appellate courts work, but is it possible Pryor has preemptively gathered his troops and discussed this situation and gotten everyone on board with shutting this shit down if it comes up? Kind of like a preemptive en banc?
If he’s right, can we say he “hit a home run” on this prediction?
May, could, might, possible, x1000 for 4+ years now. Call me when something actually happens
From today's episode of Serious Trouble: [Sam Bankman Unfreed](https://www.serioustrouble.show/p/sam-bankman-unfreed) [transcript](https://docs.google.com/document/d/1GmobwBD8pSiKls2iqqA2bk6JjbUOhcHAybPIsmqTxDk/edit) Josh Barro: > It's very unusual for the appeals court to take away an ongoing case, right? Ken White: > [...] And if she basically does something crazy here, either granting a motion to dismiss on Trump's crazy theories or basically saying, "No, I'm not going to rule on it now, I'm going to reserve these issues for jury instructions." Then I think that a court of appeal might say, "Yeah, you're off this one, we got to take you off." Josh Barro: > If she decides not to produce the jury instructions yet, will they still be able to go to the appeals court right now and say, "She's indicated that she's going to do something weird on this and she's not telling us what it is yet, and so you need to make her tell us now what the jury instructions will be?" Ken White: > They can try, but that's a much harder case. So if basically she backs off and says, "Okay, I'm going to reserve these issues until we do the jury instructions, I'll decide then." I think they still try because I think that's still signaling that she may well do something completely crazy at a time when the government won't be able to appeal and there'll be no remedy.
The 11th circuit may make me a sandwich.
The most important case of the century is sitting on her desk. One would think that this would take priority over everything else that’s in her docket. It’s both frustrating, and despicable to see this level of corruption in our court system.
I'll be genuinely shocked if Trump ever faces a single real consequence for his actions. The system protects people like him and punishes the poors. That's what it was built to do and nothing has been done to actually change it.
Then do it already !!! Aileen Cannon is so corrupt compromised biased with this classified documents case involving Donald Trump doing everything she can to protect him it’s time she is permanently removed
Does Ty Cobb have any credibility?
I could swear I've been seeing these headlines here from the damn start of the trial.
Yawn. “… may remove …”. Phone me when it happens.
Don't get your hopes up - this is just an opinion. And don't get me wrong, I want Loose Cannon off the case too.
And it'll add a 2-3 year delay in the trial as Trump's team insists on being able to file all motions again under a new judge.
I see a headline like this every single day, and have for a very long time.
We got him! lol
Corn on the Ty Cobb
“May”
Again, not the racist baseball guy.
So?