Cannon redux.

June 13, 2023

          Yesterday’s newsletter on “not freaking out” about Judge Cannon generated a lot of responses—mostly positive, but there was also criticism, skepticism, and pushback from readers. Readers then began forwarding articles that listed “What could go wrong” with Judge Cannon in charge of the trial. For the second day in a row, I will devote most of the newsletter to discussing Judge Cannon. I promise not to make it a habit, but readers seem to be rattled by her assignment to the Trump trial.

          First, to clarify: I believe Judge Cannon is a bad judge. How bad? She is so bad that there is a legitimate question as to whether she is corrupt as opposed to stupendously incompetent. The 11th Circuit said she acted without jurisdiction in the search warrant case. In effect, her rulings in the search warrant case were “lawless.”

Cannon is either monumentally inept or was acting as a stealth member of Trump's defense team. I suspect the latter is true. But she is about to enter a new world of scrutiny. Presiding over a months-long trial under the glare of a press corps reporting her every facial expression, intonation, and spoken word is bound to have some constraining effect on her favoritism toward Trump. If she’s human, she will react to the intense scrutiny—at least to some degree.

          In expressing my confidence that Jack Smith could nonetheless obtain a conviction in front of Cannon, I was not suggesting that I believed Cannon is a good judge. I don’t quite see how anyone could interpret yesterday’s newsletter as suggesting that view, but I hope I have now cleared up any possible ambiguity on that front.  

          Second, I wrote (somewhat cryptically) that I do not believe that the government “will or should” seek the recusal of Judge Cannon. That is a different question than whether Judge Cannon should recuse herself. She should! There is simply no doubt that her “impartiality can reasonably be questioned.” 28 U.S.C. § 455. But if she does not recuse herself soon, that’s a good sign she does not agree that her impartiality can reasonably be questioned.

          What then?

          Should the government file a motion asking her to recuse herself? If it does, Cannon will, of course, deny any such motion. The government will then be forced to petition the 11th Circuit to review the matter. (Technically, the government will seek a “writ of mandamus.”) Let’s assume the 11th Circuit orders Cannon to recuse herself. What then? The case will then go back to the Southern District’s “wheel” for random assignment to another of the fourteen judges in the Southern District of Florida who are available to take the case.

          Four of the available fourteen judges were appointed by Obama. If the case is assigned to a judge appointed by Obama and the jury convicts Trump after the case was taken away from Cannon, the legitimacy of that verdict will be subjected to a new layer of undeserved skepticism. That outcome is not in the public interest and would undermine public trust in the integrity of the verdict.

          Five of the fourteen judges in the Southern District of Florida were appointed by Trump. Would those judges be better or worse than Cannon? I doubt anyone can say for certain, but we know that none of them have been excoriated by the 11th Circuit for making lawless rulings. So, it is possible—emphasis on “possible”—that the once-bitten, twice-shy Judge Cannon is a better choice relative to the untested Trump appointees.

          So, a successful motion to recuse Judge Cannon results in 64% chance (9/14) of assignment to a judge appointed by either Obama or Trump. Thus, there is risk and downside associated with randomly assigning one of those nine judges to replace Cannon. If we “demand” that the government seek the recusal of Judge Cannon, we must also acknowledge that recusal is not a risk-free option. That is why I said that the government will not and should not seek recusal.

          I could be wrong about what the government will do, and reasonable minds can differ on whether the government should seek recusal. But in describing the risks associated with recusal, I am not suggesting that a trial before Cannon will be fair or easy. It will not be. But forcing the recusal of Cannon is not a magical solution that eliminates all other obstacles and risks.

          Finally, as Monday wore on, I began receiving emails attaching articles detailing all the ways that Judge Cannon can sabotage the government’s trial of Trump. I am not going to link to any of those articles. On the one hand, they are completely accurate in the way that they describe trial procedure and Judge Cannon’s discretion in managing the evidence that goes to the jury. On the other hand, they create a sense of catastrophism for non-lawyers who may not understand that any judge in any trial makes dozens of decisions that affect what evidence juries see. The fact that Cannon has that same discretion is not unique to Trump's trial.

          So, let’s stare down into the belly of the beast and face our worst fears (as highlighted in the articles readers have forwarded to me): What if Judge Cannon decides to grant a judgment of acquittal to Trump before the case goes to the jury? That would end the prosecution of Trump—a decision from which there is no appeal. What then? How will our lives be different heading into 2024? Will we give up? Or will we continue our efforts to defeat Trump? The questions answer themselves.

          It is foolish to make predictions about the future, but I am confident in making this prediction: Judge Cannon will not dismiss the case against Trump or prevent it from going to the jury by granting a judgment of acquittal on all charges. This trial is one of the most important in American history. Cannon will allow the jury to decide some of the charges against Trump. Cannon will not substitute her judgment for that of the jury on all charges. Anyone who suggests differently is engaging in fear mongering or is falling victim to doomsaying. We need to stop the madness. Let’s calm down and take this trial one day at a time.

Concluding Thoughts.

          The newsletter is shorter this evening because my wife and I were celebrating her birthday with friends. Given that her generosity of spirit and unflagging support are the reasons this newsletter continues to exist, she deserves my undivided attention on such an important occasion.

          We visited the Huntington Museum in Pasadena, California for lunch on Monday. We stopped by the rare-book library, one of our favorite exhibitions at the Huntington. One of the display cases held a handwritten log that transcribed encrypted telegrams sent to President Lincoln during the Civil War. I have attached a photo of one page of the log. It contains the deciphered transcript of a telegram from General Butterfield (referred to as “Nettle”) to Lincoln ( “Blanchard”) regarding the battle at Chancellorsville (“Taylor”).

          Although the battle was a widely viewed public event, the underlying telegram was encrypted to protect General Butterfield’s impressions of the Union loss at Chancellorsville. In other words, the telegram was a document relating to national defense. Protecting the secrecy of Butterfield’s impressions was important to the Union’s ongoing effort to win the Civil War.

          The need to protect defense secrets predates the formation of our nation. No president has unlawfully retained defense secrets after a demand for their return until Trump. His betrayal is a once-in-the-life-of-the-nation event. The enormity and significance of his crime will take time to seep into our collective consciousness. But it will; it is; and the facts are already reshaping public opinion. That’s not the goal of the trial, but it is an inevitable consequence. More on those developments tomorrow.

          Talk to you tomorrow!