Friday Round Up! 4/5/24

The Mar-a-Lago case is turning into the legal version of Dumb and Dumber.

In this week’s epsiode of “What the $#*@! is Judge Cannon Doing?!?,” Cannon denied Trump’s motion to dismiss the charges against him in the Mar-a-Lago case, based on his claim that the purloined national defense secrets that the FBI found stashed in his office and bathroom were his “personal records.”

Let’s recap. Way back in the day, in the fall of 2022 following the search of Mar-a-Lago, Trump tried to challenge the seizure of the documents at his home by claiming that they were covered by executive privilege and that there had to be a special master appointed to sift through them (i.e., a delay tactic). Remember that old chestnut? He made this challenge by bizarrely filing a civil suit in Judge Cannon’s district. Even more bizarrely, Cannon accepted the case, exercising an extraordinary form of “equitable jurisdiction” to allow Trump to argue the merits of his claims. Then, even more bizarrely, Cannon accepted the premise that some or all of the seized documents — including the highly classified national defense information — could be covered by executive privilege, despite the fact that said privilege is held by the sitting president and said sitting president was not claiming it. Anyway, I made a fun diagram at the time of the possible universe of seized documents that could potentially be covered by executive privilege:

This is all getting to the important point, which is that in entertaining the executive privilege claim AT ALL, Cannon was accepting that the seized classified documents were presidential records, since, by definition, any records covered by executive privilege would have to have been used as a part of the president’s official duties (which is why they would potentially be privileged). The 11th Circuit first overruled Cannon with regard to the classified documents — finding that he had no “possessory interest” in them at all — and then finally had enough and dismissed this whole case, based on Cannon’s abuse of discretion in exercising jurisdiction over Trump’s claims at all.

Sooooo fast forward a year and a half, to Trump’s motion to dismiss based on the Presidential Records Act, which rests on the claim that the classified documents for which he has been charged for violations of the Espionage Act are actually his personal records. I’ve linked back to my Substack video primer on how this nutty theory came about, which is basically a dumb legal argument created by a right-wing non-lawyer named Tom Fitton. (Trump actually dropped the PRA in one or two of his filings in his special master case, which undercut the entire executive privilege case he was making, but Cannon just ignored it at the time.)

[As an aside, and just because I haven’t seen anyone mention it, it’s worth noting that under the PRA, records have to be classified as “personal” or “presidential” with the archivist at the time they are created or received, as far as practicable. Keep in mind that the only reason that the National Archives even reached out to Trump at the beginning of this saga was because it realized that there were many records that were missing — which to me implies that these documents must have been designated as presidential during the administration…otherwise how would the archivist have even tracked them and known they were missing? But anyway.]

As Renato and I discussed a couple of weeks ago, Cannon, before ruling on this motion, came back with yet another bizarre order: both the defense and prosecution were to come up with sample jury instructions for two scenarios, both of which would rest on the premise that Trump’s interpretation of the PRA — that he could simply designate national defense secrets as “personal records” — as true. It also assumed that the PRA could function as a defense to the Espionage Act.

Last Tuesday, Special Counsel Jack Smith decided that it was time to stop the insanity. In his filing, he basically calls out Cannon lack of understanding of the law, and specifically that her proposed jury instructions rest on a”fundamentally flawed” and “incorrect premise” that the PRA can be a defense to the Espionage Act, or even applies to the facts in this case. Smith told Cannon that her underlying legal assumption is a question of law, not fact, i.e., not something for the jury, but for her, to decide. He also stated that he needed to decide this issue soon, because Cannon’s “interpretation” of the PRA could be fatal to the government’s case, the legal issue needs to be resolved before a jury is sworn in. The timing is important: That’s because once the jury is sworn in, double jeopardy attaches to Trump — meaning that even if she is wrong on the law, the government would not be seek appellate review to correct that interpretation and (re)try Trump on these facts after that stage of the trial. Smith told Cannon that if she gets it wrong, he intends to seek a writ of mandamus from the 11th Circuit, which is a rare but serious smackdown when judges go too far off the rails.

Judge Cannon’s response to Smith was to deny Trump’s motion to dismiss BUT decline to issue a final ruling on the legal question of whether the PRA applies in this case and offers a defense to the Espionage Act. So basically, that issue is still in play, and she could very well decide in such a way as to give Trump an out after the jury is sworn in, at which point Smith would have no recourse. In fact, Cannon called Smith’s request “unprecedented and unjust,” and, in what I can only read in a whiny tone, that all she was trying to do in her kooky jury instructions order was “better understand the parties’ competing positions…in this complex case of first impression.” In other words, she is out of her league and she has no idea what she is doing (that’s the best case scenario, the worst is that she is trying to set this up so Trump is almost guaranteed to be acquitted).

There has been some debate among legal commentators on what Smith’s next moves ought to be, in terms of seeking review of her underlying legal views — something that Renato and I will discuss this coming week. In the meantime, here is our discussion from the law pod, on Trump’s media IPO:

Articles worth reading:

• This Just Security piece on the nature of the charges against some of the people currently being held in D.C. jail, and who Trump believes have been “wrongly imprisoned”

• This Guardian piece on the sketchy Rusian national (who is under criminal investigation) behind the financing of Trump Media

Upcoming events:

• Freedom Academy Book Club, Friday, April 19, 12 p.m. EDT.  We’ll be discussing Gun Country: Gun Capitalism, Culture, and Control in Cold War America with author Andrew McKevitt. Drew’s book illuminates how our society became so saturated with guns, and how gun ownership intersects with race, politics, and money. This discussion will be recorded and posted for paid subscribers.

• Zoom Office Hours, Friday, April 26, 4-5 p.m. EDT. We’ll discuss the latest. Zoom link will be sent to paid subscribers at 1 p.m. Office hours discussions are not recorded.

• TBA (in May). Professor Jacob Hacker, author of Let Them Eat Tweets: How the Right Rules in an Age of Extreme Inequality will join us to discuss some of the driving forces behind asymmetrical polarization, a topic we are currently covering in our Substack course. (You can enroll in the course at anytime, and this topic is new — check out the short assignment from last week!)

Have a great weekend!