Don’t freak out about Judge Cannon.

June 11, 2023

          The Trump indictment generated an unusually high volume of reader emails and comments throughout the weekend. A high percentage of those communications expressed concern about the appointment of Judge Aileen Cannon to preside over Trump's trial. Most expressed concerns that Judge Cannon will thwart the fair prosecution of Trump by one or more of the following means:

• Delaying the trial until after the 2024 election.

• Exercising favoritism to Trump and bias against the government to the degree that will make it impossible for the government to receive a fair hearing on its charges.

• Acting in an unrestrained and prejudicial manner in the absence of television cameras in the courtroom.

• Deciding Trump's guilt or innocence in a “bench trial” if Trump waives his right to a jury.

          I understand these concerns but believe they are misplaced. Before I explain why, let me state my strong belief that Trump will be convicted and sentenced to confinement—assuming he is not elected as president in 2024.

My thesis: The trial is not a solution to the political problem of a possible second term for Trump.

          All the above concerns are based on an unstated premise: That the trial for retaining defense secrets will prevent Trump from becoming president again. It will not. The trial is designed to achieve two purposes: To punish Trump for his crimes and to dissuade future bad actors from repeating those crimes. In short, the trial is not—and can never be—a solution to the political problem of a potential Trump second term.

          The outcome of the trial is ultimately dependent on the outcome of the election; the outcome of the election is not dependent on the outcome of the trial.

          If Trump wins a second term, the trial will be irrelevant, even if Trump is convicted before the election. As a second-term president, Trump can manipulate the DOJ to fire special counsel Jack Smith and reverse the conviction somehow, as the DOJ did for Michael Flynn, or he can grant himself a self-pardon. (I do not believe a self-pardon would be constitutional, but if Trump grants himself one, it will be a “get out of jail free card” for the duration of the appeal through the Supreme Court.)

          The only solution to the political problem of a Trump second term is to defeat Trump (or any other GOP contender) at the ballot box.

          If you accept my thesis that the only path forward is to defeat Trump at the ballot box, the timing of his conviction does not matter. To the extent that you are hoping the trial will harm Trump's prospects as a candidate, Jack Smith’s “speaking indictment” has gone a long way to achieving that objective.

          So, my thesis is this: Do not look at the trial as a political solution to a Trump candidacy. If you set aside that mistaken premise, the only thing that matters is whether the government can fairly prosecute Trump before Judge Cannon and obtain a conviction. I believe it can. Read on!

Don’t worry about the timing of the trial.

          We can’t control the timing of the trial, so don’t lie awake at night worrying about it. The time to trial is determined in the first instance by the Speedy Trial Act, which mandates that a trial be set within 70 days of the defendant’s first appearance.

          The 70-day period is extended by the time necessary to consider and rule on pretrial motions and the pendency of any interlocutory appeal. There will be many pretrial motions and interlocutory appeals in this case. The election is seventeen months away. Is it reasonable to assume that motions and appeals might consume seventeen months? I believe it is—even without any undue delay imposed by Judge Cannon.

          Many readers have said that the Florida “rocket docket” means that Trump should be tried very quickly. I don’t know what it means to have a “rocket docket” in a criminal matter, given that the mandatory time periods and extensions provided by the Speedy Trial Act control the timing of the trial. The Act specifically says that “court congestion” cannot be a reason for delaying a trial. But the Act also says that the judge can unilaterally extend the time to trial for a variety of reasons, including the following:

[If] case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.

          Based on the above standard, it would not be an abuse of discretion for Cannon to grant Trump an additional six months (or more) to prepare his defense. If you add that six months to pretrial motions and interlocutory appeals, you can understand why obsessing over the timing of the trial is certain to drive you to distraction.

          My point is that there are many variables and contingencies that may legitimately extend the time to trial over which Judge Cannon has no control. Trump may be tried before the election; he may not. Either way, the timing of the trial will not prevent Trump from becoming president. That is our job, not the job of Jack Smith or Judge Cannon.

Don’t surrender to the fear that Cannon will single-handedly thwart the government’s prosecution.

          The random selection of Cannon was an unlucky draw for the government. She probably won’t recuse herself, even if the government was inclined to make such a motion. (I don’t believe it will or should.) And there is no indication that Cannon has been assigned only to handle the “initial” phase of the proceeding—a notion that is being universally repeated by the media. The local rules do not provide for an “initial” assignment to a judge. They provide for a single assignment to a judge at the inception of the case, who then presides over the matter for all purposes, unless the judge recuses themselves. See NYTimes, Aileen Cannon, Trump Appointee, Was Randomly Assigned to Documents Case and Will Remain Judge in Documents Case, Clerk Says.

          But, you say, “Cannon is biased and unfair. What about that?” Well, lawyers draw bad judges all the time. Do you know what they do in such situations? They try their cases as best they can, trusting in the greater wisdom of the jury—because that is what our system of justice demands. In this regard, I highly recommend an essay by Ken White on his Substack blog, The Popehat Report, “Jack Smith, Donald Trump, and the Kobayashi Maru.” White is an attorney and explains that he sometimes gives a “speech” to new associates who are anxious that they may lose a motion or trial due to unfair factors beyond their control.

          White applies his “speech” (about a Star Trek cruiser in an “impossible” situation) to the unfair situation in which Jack Smith finds himself:

The rule of law doesn't mean that everyone is always going to do the right thing. The process of the rule law presumes that sometimes there will be bad actors. Sometimes jurors will nullify for bad reasons. Sometimes judges will make bad calls. The rule of law is about [our] system, it's imperfect, we're going to put the person through the process because that's how we do things. And so, ultimately, even if you think you might get a bad unfair ruling, what you do is you put it through because you want to demonstrate that no one's above the law. And so, we have to take the shot. [B]ecause if we don't, because if you don't pursue a criminal because the criminal has put a crooked judge on the bench, then you're really completely giving up.

          If anyone is up to the challenge, it is the team of prosecutors that Jack Smith has assembled. Judge Cannon can put her thumb on the scales of justice in many ways—some obvious, some devious, some invisible. But this case will make its way to a jury for determination. And if Smith is permitted to present only 50% of his evidence to a jury, he will secure a conviction on at least one of his 37 counts. A conviction on a single count will expose Trump to a decade in prison.

          “But,” you say, “the Florida jury pool is filled with MAGA extremists.” I think that is an exaggeration born of anxiety, but let’s assume that some Trump supporters make it on the jury. The DOJ was able to obtain convictions of Paul Manafort and the Proud Boys with Trump supporters on the jury. And two juries acquitted defendants in bogus prosecutions brought by Trump's “revenge” special counsel, John Durham. Do not sell juries short.

          And hang on to this truth: No jury will acquit Trump. The two most likely outcomes are conviction on at least one (or more) of 37 counts or a hung jury and a retrial. In other words, Trump’s best hope is that he will be a criminal defendant for the next five years through two trials and multiple appeals.

          Finally, let’s remember that a very conservative panel of the 11th Circuit eviscerated and humiliated Judge Cannon in the search warrant case. She is reportedly a smart person, so she must be able to anticipate what will happen if she fails to follow the law in the trial. She may try to put her thumb on the scale in subtle ways, but she will not act in the same lawless manner as she did in the search warrant proceeding. If she does, she should expect a similarly blistering reception in the 11th Circuit—which should give everyone confidence about the ultimate ability of the prosecutors to get a fair trial before Cannon.  

Don’t worry about the absence of cameras in the courtroom.

          Many readers suggested that the absence of cameras in the courtroom will allow Judge Cannon to act like a vengeful Trump sycophant run amok. I think that fear is overstated.

          First, let’s recall that in the search warrant case, Judge Cannon rarely took the bench. Her lawless orders were issued from in chambers. She was a bit of a recluse. In the trial, she will be on the bench constantly. Although there will be no cameras in the courtroom—which is the rule in federal courts—the press will be watching and reporting on her every move. There will be plenty of media pressure on Judge Cannon.

          Conversely, the notion of “cameras” in the courtroom has come a long way from the days of the OJ Simpson trial, which featured clunky cameras operated by cameramen. I tried a case in the last four years that was “televised” on a “court-TV” streaming service. The “cameras” were about 4 inches by 4 inches in two corners of the courtroom. They were effectively invisible. Everyone worried about the cameras for the first sixty seconds of the trial and then forgot about them completely. So far as I could tell, they had absolutely no effect on anything anyone did at trial.

          And here is an under-appreciated fact: Most trials are boring most of the time. Trump’s trial may be an exception, but in my “televised” trial, we paid much more attention to the newspaper coverage of the trial than the televised portion.

          And there is another limitation on Judge Cannon’s ability to run roughshod over the prosecution: Juries can sense when a judge is being unfair, heavy-handed, or biased, and they can develop resentment toward the judge for such behavior. I have seen it happen; I would be interested in hearing from other attorneys who witnessed the same phenomenon.

          It is true that the judge exercises tremendous power in the courtroom. But when a jury is empaneled, everything is about the jury—the schedule, the admission and publication of exhibits, the testimony of witnesses, and the determination of facts. Cannon holds great sway, but the jury is the finder of fact. She can’t tell them what to decide (or, if she does, the government can appeal and will win on appeal).

Don’t worry about Trump waiving a jury trial so Judge Cannon can decide whether Trump is guilty.

          A surprising number of emails expressed the worry that Trump would waive a jury and allow Judge Cannon to decide his guilt or innocence. While Trump can waive his right to a jury trial, the government and the judge must consent. Rule 23. Jury or Nonjury Trial | Federal Rules of Criminal Procedure. Here, the government would probably not consent to a nonjury trial. But Trump would be an idiot to waive his right to a jury trial.

          In a jury trial, there are three possible outcomes: Trump can “win” (acquittal) or “lose” (conviction). But he has a third possible outcome in a jury trial—a hung jury, where a single juror out of twelve can prevent a conviction. In that sense, Trump has two ways to “win” in a jury trial—acquittal (which won’t happen) or a hung jury (which might happen).

          In a nonjury trial, the judge can only render one of two verdicts: Guilty or not guilty. Trump thus loses his “hung jury” option. Moreover, the judge must render the guilty/not guilty verdict on each of 37 counts against Trump. If Trump waives a jury, he must be incredibly confident that Judge Cannon will find him “not guilty” 37 times. That is a bigger risk than hoping for a hung jury because a rogue Trump juror made their way onto a jury panel of twelve.

On the substance.

          Okay, I spent way too much time talking about Judge Cannon, but it appeared to me that a substantial number of readers had an unnecessary meltdown over the weekend. To be clear, Judge Cannon has proven herself to be a bad judge. She demonstrated incredible bias and intellectual dishonesty in the search warrant proceeding. The 11th Circuit said she acted lawlessly by exceeding her jurisdiction as a judge. That’s almost as bad as it gets.

          I am not saying it will be easy to try a case before Judge Cannon. I am saying that good lawyers try cases before bad judges all the time and win. So let’s not collapse before Trump has entered a plea.

          There is so much being written on the substance of the indictment I will not go on at length in this edition of the newsletter. I highly recommend that you read the indictment (here: United States of America v. Donald J. Trump). Alternatively, I recommend the superb analysis in Lawfare, United States of America v. Donald J. Trump and Waltine Nauta (lawfareblog.com).

          And there is no better analysis of Trump's motivation than Fintan O’Toole’s essay in The New York Review of Books, The Ultimate Deal. O’Toole’s prose is so good it hurts to read it (because of intense feelings of jealousy over his way with words).

          O’Toole begins:

Secrets are a kind of currency. They can be hoarded, but if kept for too long they lose their value. Like all currencies, they must, sooner or later, be used in a transaction—sold to the highest bidder or bartered as a favor for which another favor will be returned. To see the full scale of Donald Trump’s betrayal of his country, it is necessary to start with this reality. He kept intelligence documents because, at some point, those secrets could be used in a transaction. What he was stockpiling were the materials of treason. He may not have known how and when he would cash in this currency, but there can be little doubt that he was determined to retain the ability to do just that.

          Wow! O’Toole nails it. Trump's feral instincts compelled him to steal defense secrets because he understood that sooner or later, he could use those secrets to his advantage—even if that advantage was not obvious to Trump at the moment of theft.

 Concluding Thoughts.

          We are in for a long, turbulent ride in the defense secrets trial. If the first weekend of our journey together is any indication, we need to take some Dramamine and read People Magazine to chill out. Do not collapse all the possible pitfalls and setbacks of the future into the present moment. They may not occur (indeed, probably will not), but if they do, we have options to overcome them.

But the most important lesson is this: The point of the trial is to punish Trump for his crimes. If we want to keep him out of the Oval Office, we must beat him at the polling booth. Nothing about the trial changes that fundamental truth. The good news is that we have beaten him before and stand a good chance of doing so again.

          Talk to you tomorrow!