Republished with permission from Lucian K. Truscott IV
District Court Judge Aileen Cannon has done it again. In a triple back-flip attempt to dismiss the Mar-a-Lago documents charges against Trump without actually issuing an ruling doing so, Cannon has ordered both sides in the case to come up with a set of jury instructions based on the same kind of insane misreading of the law that got her overturned twice by the 11th Circuit Court of Appeals back when she first had the case and was doing stuff like appointing a special master to go through many thousands of pages of documents Trump had squirreled away at Mar-a-Lago and determine whether any of it was secret.
Cannon, like the rest of us, had seen the photos of top secret documents taken in Trump’s office on the day the FBI served a search warrant and seized the material. The 11th Circuit made a quick decision that there was no need for a special master to be appointed to go through documents clearly marked as highly classified and threw out Cannon’s order.
Legal eagles spent last night speculating about how Cannon had come up with an order to the defense and prosecution that was so upside down and backwards. The answer is easy: She is casting about for a way to rule that Donald Trump did not break the law without getting herself overturned in the process. To accomplish her goal as a loyal Trumpette, Cannon has taken Trump’s side in his motion to dismiss the indictments based on the Presidential Records Act, but she can’t figure out a way to do it without stepping on the hem of her robes.
Cannon wants the defense and prosecution to come up with jury instructions at this stage in the process that would automatically lead to a directed verdict of acquittal. It isn’t the job of judges to present hypothetical questions. It’s the judge’s job to rule on matters of law. Cannon was asked by Trump to rule that the Presidential Records Act (PRA) lets him off the hook for stealing dozens of top secret documents and then illegally storing them in or near public areas that were not secure.
The clear language of the PRA makes all records produced during a president’s time in office the property of the United States government. Trump said the PRA gives him the right to designate any records he wants as “personal property.” He claimed in his motion to dismiss that he had designated all those secret documents as his personal property, including a plan to attack Iran and documents containing secrets about the nuclear capabilities of the United States. His reason for declaring such sensitive information his personal property was, well, he’s Trump, and he can do what he wants.
Cannon gave Special Counsel Smith two choices in her order yesterday: lose the case now or lose it later when I direct a verdict of acquittal. Here is the second of her two scenarios Cannon told Smith to address as he formulates hypothetical jury instructions.
“A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.”
That paragraph reads like she called Trump at Mar-a-Lago and asked him, “How would you like me to rig the case for you, sir? Completely, or totally?”
Legal eagles on MSNBC yesterday argued about whether the Special Counsel should try to get Cannon thrown off the case now or later. Basically, it boils down to when the Special Counsel yanks the latch on the trap door. He could ask the 11th Circuit for a writ of mandamus now, throwing out Cannon’s order and probably ejecting her from the case. Or Smith could file an answer to Cannon’s order basically challenging her to uphold Trump’s request that the charges be thrown out based on the PRA, and then he could appeal her decision to the 11th Circuit, the same way he appealed her special master nonsense before.
I loved former FBI general counsel Andrew Weissmann’s categorization of Cannon’s order last night: “Please draft a jury instruction assuming that the earth is flat. And the second one is please draft a jury instruction that the earth is square.”
Behind all this ring around the roses Judge Cannon is putting the Special Counsel through is her obvious desire to delay the proceedings in her court as long as possible. The order she issued yesterday is so through-the-roof crazy, it’s clear that she knows Trump is going to lose this case if it ever goes to trial. So: delay, delay, delay, even if she looks like a fool in the process.
Down at Mar-a-Lago in MAGA-land, Judge Aileen Cannon looks like not a fool, but a potential Supreme Court appointee, which in Trumpworld is one and the same.
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.
