Jennifer Rubin In The Washington Post: Judge Cannon Plays “Catch And Kill” With Trump Classified Docs Case
Judge Aileen Cannon seems determined to kill the criminal Mar-a-Lago classified documents case facing former President Donald Trump, Jennifer Rubin writes in a column in The Washington Post.“Her latest delay,” Rubin writes, “follows a series of widely criticized moves revealing her inexperience. Among the most inexplicable: Demanding a debate on jury instructions (even sillier in retrospect, with a trial postponed indefinitely!) and threatening to reveal witnesses’ names, which prosecutors say would endanger them.”
Rubin points to an op-ed from last year by Amb. Norman Eisen (ret.), Richard Painter, and Democracy 21 President Fred Wertheimer explaining why Cannon should recuse herself from the case.
Cannon’s indefinite trial postponement and foot dragging “treats national security cavalierly,” Rubin warns. “Prosecutions are necessary to deter others contemplating espionage. She might give such characters hope that they, too, can avoid prosecution. […] If the documents case doesn’t even go to trial, allies’ fear of sharing intelligence with the United States would only increase.”
Rubin also discusses “long shot” options that Special Counsel Jack Smith has that, while unlikely, could move the case forward.
Read Rubin’s column on The Washington Post or below.
The Washington Post | 5/12/2024
Judge Cannon Plays “Catch And Kill” With The Trump Classified Documents Case
Stacking the deck for Trump means endangering national security.
By: Jennifer Rubin, Columnist
“Catch and kill,” we have learned from Donald Trump’s criminal trial in New York, amounts to a publisher paying for a salacious story with the purpose of bottling it up, preventing any embarrassment to the subject (Trump). While the federal case in Florida involving the mishandling of classified documents is literally and figuratively miles from New York, Judge Aileen M. Cannon caught the case when it was assigned to her last year, and she now seems determined to kill it. Former federal prosecutor Andrew Weissmann explained on MSNBC the “catch and kill” analogy:
“She has consistently making erroneous legal decisions. They are consistently always on the side of Donald Trump. And as the transcript shows in terms of how that came about, it came about because it’s precisely what Donald Trump’s lawyers asked for and said should be done, and then she did it.
“There is no law to support it. And to be in the weeds, she keeps on referring to the Presidential Records Act and wants to instruct the jury on the Presidential Records Act. That is not the crime. It has nothing to do with the crime. It is what Donald Trump wants the case to be about, but it is not actually what the criminal law is about. So this is a judge, in my estimation, who is engaging in, out in the open, catch and kill. Which is to never have this case go to trial before the election.”
And that was in March, before the latest outrage.
The Post reported last week, “The judge had originally set the Florida trial date for late May, but that has seemed unlikely for months, with Cannon still needing to make decisions on a number of key legal issues before a jury can hear the case.” However, “in her ruling Tuesday, Cannon said there are many complicated legal rules and deadlines surrounding the use of classified evidence in public criminal trials that need to be considered before she picks a new court date.”
On its face, Cannon’s statement is absurd, practically an admission that the case is too complicated for her. (As the New York Times noted, “She has limited experience overseeing trials of any kind — let alone one involving explosive allegations that a former president and current candidate illegally took highly classified state secrets from the White House.”) Her latest delay follows a series of widely criticized moves revealing her inexperience. Among the most inexplicable: Demanding a debate on jury instructions (even sillier in retrospect, with a trial postponed indefinitely!) and threatening to reveal witnesses’ names, which prosecutors say would endanger them.
The Mar-a-Lago classified documents case is certainly more straightforward than special counsel Jack Smith’s case regarding Jan. 6, 2021, which was moving ahead before the Supreme Court gummed up the works, insofar as Cannon’s case concerns conduct after Trump left office, sidestepping presidential immunity issues.
Whether Cannon, nominated to the bench by Trump in 2020, is acting out of bias, incompetence or fear of trying a high-profile case, she has justified the recusal argument that many experts made when she was first assigned. Ethics gurus Norman L. Eisen, Richard W. Painter and Fred Wertheimer last year wrote for Slate that Cannon never should have been allowed to take the case:
“First, it is common knowledge that Cannon already took the deeply erroneous step of ordering federal prosecutors to refrain from using the materials seized from Mar-a-Lago in their investigation when she appointed a special master to review whether these materials were subject to executive or attorney-client privilege. The charges here are the direct result of the investigation her order temporarily halted.
“Second, Cannon’s other statements and actions in the prior proceedings made clear her view that Trump is entitled to differential treatment than any other criminal defendant. She wrote that “as a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own.” … As the ultraconservative panel of the 11th Circuit forcefully explained when finally dismissing Trump’s civil action in its entirety, it was Cannon’s attempt to “carve out an unprecedented exception in our law for former presidents” that was in a league of its own.”
Cannon’s actions suggest some awareness that she is on thin ice. The judge has deftly reversed herself and kept motions under wraps, apparently to prevent the prosecutors from taking their issues to the circuit court. Some prosecutors speculate that in taking motions under advisement, she might be waiting until a jury is impaneled to hand down rulings devastating to prosecutors or even issue a directed verdict — thereby preventing retrial.
The judge’s actions are particularly galling given the strength of prosecutors’ case. “There are many felony cases that the DOJ pursued based on conduct that was significantly less egregious than the present set of facts in the Trump case,” a Just Security model prosecutors memo explained. “Aggravating factors in Trump’s case include the length of time of his retention of government documents, the volume of government documents, the highly sensitive nature of the documents, the number of warnings he received, his obstructive conduct, and his involving other individuals in his scheme.” Not prosecuting him, the memo said, “would be a major deviation from how defendants are typically treated.”
The indefinite trial postponement announced by Cannon last week prompted strong condemnation from critics. “It is just truly a disgrace that she is not doing her job,” Weissmann succinctly put it on MSNBC. Former prosecutor Barbara McQuade told me, “I like to presume that judges act in good faith, even when I disagree with their decisions, but Judge Cannon’s order postponing the trial indefinitely is truly baffling. It is not only the defense but also the public that has a right to a speedy trial. Delay causes memories to fade, evidence to go stale, and jury appreciation for the seriousness of the case to diminish.”
McQuade added, “In a case that alleges illegal retention of some of our nation’s most sensitive secrets, it feels like to judicial malpractice to slow-walk this case the way Judge Cannon has.”
Cannon’s foot-dragging also treats national security cavalierly. Prosecutions are necessary to deter others contemplating espionage. She might give such characters hope that they, too, can avoid prosecution.
In bottling up the classified documents case, Cannon might send a disturbing signal to U.S. allies. “Beyond compromising U.S. information, the security breach is significant because of its potentially damaging impact on intelligence liaison relationships and information sharing with other countries,” Just Security’s Tess Bridgeman and Brianna Rosen wrote last year. “If the documents contained information from joint collection streams, for example, it is possible that the former president has compromised allied governments’ sources and methods.”
If the documents case doesn’t even go to trial, allies’ fear of sharing intelligence with the United States would only increase.
What can Smith do? The special counsel might make a motion to recuse. Cannon would deny it, but he could then take it up with the U.S. Court of Appeals for the 11th Circuit. Ordinarily, delay is not grounds to boot a judge. (If it were, many judges would risk recusal.) Smith nevertheless could argue that under the totality of the circumstances and given the 11th Circuit’s prior chastising of Cannon, as well as the national security concerns, the appeals court should reassign the case. Still, Smith likely would lose.
Alternatively, he might go to the 11th Circuit seeking a writ of mandamus, essentially an order requiring Cannon to decide the pending issues. The bar for a writ, however, is exceptionally high. It would require a showing that (1) the government has no adequate alternative means for relief, (2) the government has a clear and indisputable right to the requested relief and (3) mandamus is appropriate under the circumstances. That makes this a long shot, too.
Although Cannon has no excuse for “repeated delay of the Mar-a-Lago documents case, a very serious case that would be extremely difficult for Trump to defend,” former prosecutor Renato Mariotti tells me, “Jack Smith likely does not have a viable way to force Judge Cannon to move the trial forward quickly because trial judges are given extremely broad discretion over their trial schedule.”
Many legal experts still argue that Smith might as well try one of these moves: What has he got to lose? At the very least, the special counsel can highlight the danger of giving Trump another chance to stock the courts with Aileen Cannons.
