Wow!
June 10, 2023
Wow! The indictment was more devastating and powerful than anyone could have imagined. It reads like an outline of proof at trial. Much of the proof is in the form of admissions by Trump or statements by co-conspirators or advisors that will be admissible at trial. Trump will not be able to dispute the evidence. He will be reduced to making irrelevant arguments that any impartial jurist would exclude from evidence.
Which brings us to the jurist who will be hearing the trial: Judge Aileen Cannon. Readers have described themselves as distraught, distressed, and upset over the assignment of the case to Judge Cannon. They should not worry. Jack Smith understood that he would likely draw Judge Cannon and concluded that his indictment would result in a conviction—even in a courtroom controlled by a judge who has proven herself to be a Trump partisan.
A few relevant facts:
You will recall that Judge Cannon disgraced herself in the lawsuit filed by Trump seeking the return of the documents seized by the FBI at Mar-a-Lago. Her biased rulings in that case raised serious questions regarding her impartiality. Moreover, as a judge recently appointed by Trump, she should recuse herself from a criminal trial that could send Trump to jail for a decade. She will not likely do so. Similarly, Jack Smith will not likely ask Judge Cannon to recuse herself. Such a move would signal insecurity and undermine the public’s confidence in the prosecution. So, we are probably stuck with Judge Cannon.
When Jack Smith filed his case in Florida, he knew that there was a high likelihood that the case would end up before Judge Cannon. New criminal cases in the Southern District of Florida are assigned randomly to judges in the district. Here, the case was randomly assigned to Judge Cannon—the luck of the draw. But even if the case had not been randomly assigned to Judge Cannon, the local rules of Florida’s Southern District effectively require that the case be transferred to Judge Cannon because she handled the related case involving the search warrant. See Southern District of Florida Internal-Operating-Procedures.pdf at 2.01.01(a), 2.06.00, and 2.07.00(d), and 2.15.00.
Thus, Jack Smith knew that the case would likely be transferred to Judge Cannon but believed he could nonetheless secure a conviction in her courtroom, for several reasons:
First, in a criminal trial, the jury is the finder of fact, not the judge.
Second, in the DOJ’s previous experience before Judge Cannon, it was able to constrain her erroneous rulings by interlocutory appeals to the 11th Circuit.
Third, the 11th Circuit issued blistering and humiliating rebukes to Judge Cannon. Any sentient being would be motivated to avoid such embarrassment in the future.
Finally, Jack Smith is a far better prosecutor than Judge Cannon is a judge. He is confident of his case and willing to take on Judge Cannon, come what may.
The unfortunate truth is that the federal judiciary has well-known district court judges who are unpredictable, irrational, and biased. And yet, competent lawyers try and win cases before those judges every day. Jack Smith is up to the task, so let’s not sell him short or surrender to panic before we have reason to do so. The lawsuit filed by Trump over the search warrant was painful, but Judge Cannon was ultimately forced to yield to the law. We should expect no different result here. It may be painful, but we will end up in the right place—with a jury of Trump's peers deciding his guilt or innocence. We can’t ask for more than that.
Talk to you on Monday!
I usually do not weigh in directly in the Comments, but my inbox is filled this morning with worried emails about Judge Cannon delaying the trial until after the election. That is very likely to happen. Any defense team worth its salt can file enough pretrial motions and interlocutory appeals to delay a criminal trial for sixteen months (the two-month minimum required, plus sixteen months to get to November), so Cannon need not give Trump an unfair assist to delay the trial beyond November 2024.
I don't think we should stress over that fact. Convicting Trump is not a substitute for beating him at the ballot box. Indeed, if we don't beat him at the ballot box, a conviction will be irrelevant, regardless of whether it occurs before or after the election in November.
Also, many have mentioned the absence of cameras in the courtroom to curtail Cannon's impulse to unfairness. That is true, but in the prior proceeding, Cannon issued all of her orders from in chambers. She was on the bench for a few minutes. Not so in the trial. She will be under the constant scrutiny of the press--and subject to criticism for her obvious inexperience, ignorance of the law, and bias. I don't think we should underestimate the pressure of intense scrutiny from the press or the capabilities of Jack Smith's team.
Finally, many people have expressed concern over the Miami jury pool. The DOJ has obtained multiple convictions with Trump supporters on the jury--Paul Manafort, the Proud Boys, the Oath Keepers. And Durham suffered two acquittals of defendants he charged even with the presence of Trump supporters on the jury.
And let's clear one thing up: Trump WILL NOT be acquitted. He may achieve a hung jury, but no jury will find him innocent of the charges. The DOJ can try him a second time if there is a hung jury.
In the end, we are not entitled to a conviction of Trump. The public is entitled to a fair trial of Trump on the charges in the indictment, nothing more. A fair trial should result in a conviction, but there is no guarantee of that outcome, so let's stop stressing over every bump in the road that might decrease the likelihood of a conviction. We have a long way to go and this process will be challenging for us all. For now, Smith has filed a stronger than expected indictment that shows Trump lied to his own attorneys and the FBI to conceal the documents and suggested that his lawyer destroy documents after receiving a subpoena from a grand jury. It doesn't get much worse than that!
"a jury of Trump's peers..." ... don't the jurors have to be old enough to vote to be on the jury?