A couple of weeks ago Aileen Cannon, the judge in Donald Trump's classified documents case, asked attorneys for both sides to write hypothetical jury instructions based on two scenarios. Scenario A: the jury gets to decide if any particular document is a "personal record." Scenario B: Trump gets to decide unilaterally.
This is based on a distinction in the Presidential Records Act between personal records, which outgoing presidents are allowed to keep, and official records, which they aren't. Today prosecutor Jack Smith refused to play along with the idea that the PRA has a role in this case at all:
That legal premise is wrong, and a jury instruction for Section 793 [the Espionage Act] that reflects that premise would distort the trial. The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793. Indeed, based on the current record, the PRA should not play any role at trial at all.
This is certainly correct as a matter of law, since the PRA doesn't cover classified documents. But Smith went further: Not only does the PRA not enter the case, he said, but Cannon needs to say if she intends to instruct the jury otherwise. If she does, he'll ask an appeals court to issue a writ of mandamus instructing her to follow the law.
Mandamus is very rare, sort of a "break glass" level of emergency. That makes Smith's brief essentially a shot across the bow, telling Cannon that if she goes ahead with something so completely wrong he'd have no choice but to ask a higher court to publicly spank her.
I'm sort of idly curious about what Cannon will do next. By now she must realize how badly she's screwed up, but does she admit it or does she just quietly accept the briefs from both sides and then never say another word about them? If the latter, will Smith let her get away with it? Or, does she have the gumption to stick with her plan and basically dare Smith to mandamus her? Stay tuned.
Cannon has managed to create additional delay which is the point. If she intends to rule that by law, Trump gets to decide what is and isn't a presidential record then any trial is a farce.
That's Scenario B, which has garnered the most attention. But "Scenario A: the jury gets to decide if any particular document is a "personal record", is also bad. As I understand it, the jury will look at classified documents (!) and subsequently decide if they are personal. But they're classified! That should be enough to exclude them as personal.
Cannon is going way too granular in Scenario A. But that's what you do if you want to undermine the prosecution. By going ever deeper into the nature of the evidence, hoping to find some criteria that "invalidates" the case.
I enjoyed Allison Gill’s (or Mueller, she wrote) quick take on it:
“Jack Smith basically says “you’re basing your order on a misinterpretation of a law that has no bearing on this case, and if you think it does you have to tell us now so we can drag your ass to the 11th circuit before double jeopardy attaches, and if you DO try to pull this off at trial, we will seek a writ of mandamus. I’ve written a PROPER jury instruction, and since you ordered me to, I’ve written the erroneous and completely stupid jury instructions you directed us to write.” I’m paraphrasing, of course.
He then rubs it in a little and calls his jury instruction Government’s Proposed Jury Instruction: The Jury Is Correctly Instructed that Unauthorized Possession Is Based on Executive Order 13526, Not on the PRA.
Then when it comes time to write up the jury instructions Cannon asked for, he titles the first one: Scenario (a): The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Personal Record, Regardless of Classification, and the Jury Is Then Asked to Determine Whether Each Document Is Personal or Presidential
And he calls the second one: Scenario (b): The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Record that He Designated as Personal, and Is Further Incorrectly Instructed that, by Failing to Transfer the Charged Documents to NARA, the Defendant Made the Unreviewable Decision to Designate the Charged Documents as Personal”
I like Jack Smith’s style.
that is dope AF. so much so i had to google it to make sure you weren't just paraphrasing the jury instruction titles. make this dude AG if biden wins in november.
In the first place government over classifies. In the second place Trump probably already sold the secrets so further secrecy is pointless. In the third place I as a citizen am just as equipped to decide if information deserves to be classified or not.
Whether or not the documents SHOULD have been classified is not a question before the court. The issue is whether or not the documents WERE classified. "The documents were classified, but shouldn't have been" is not a defence.
Trump isn’t actually charged with failing to return classified documents; he is charged with (among other things) violating 18 U.S.C. §793(e). I won’t bother to quote 18 U.S.C. §793 here, but the key thing to note is that whether a document is covered by that statute depends on the contents of the document, not on whether the document is classified.
I don’t believe that Trump’s lawyers have tried to argue this, but in principle it is possible that the documents Trump failed to turn over are not covered by 18 U.S.C. §793 even if they are classified. Conversely, Trump could still be convicted even if he had declassified all of the documents in question back when he was President.
“I as a citizen am just as equipped to decide if information deserves to be classified or not.”
As whom? As TFG, yeah, undoubtedly. As the scientists, engineers, intelligence professionals, country experts, military planners, etc. who create documents and assign classifications? No way.
"In the first place government over classifies."
And there's a process to declassify things that Trump could have used while he was president.
I don't trust Cannon to do anything right. She's suspicious of the case, sees it as an instance of political prosecution, and will do everything in her power to dilute the government's case and eventually dismiss it.
That's possible, perhaps even likely, but everyone should keep in mind the following.
1. There are not many criminal cases where the defendant actually has the money to defend the case. When there is such a case, it is easy for it to appear odd, like this one.
For example, let's take a look at the following factual assertions and legal arguments. As much as I hate Trump, he's entitled to make all of them:
1. Unlike some poor government employee who has no right to move any of the documents at issue outside the government building, he's a former president, and so he had the right to take them to Mar a Lard ass.
2. Accordingly, expect what would be known as a "lack of intent" argument, which is even if they were classified, he didn't intend to permanently take them, and, under point 1, above, its permanently that counts, as he had the right to have them temporarily in his possession at his house.
3. The whole "I had the right to de-classify them" argument is a classic BS argument that only a super rich defendant can afford to make. The problem for any judge is that in our system you have to rule on all arguments, even BS ones. Again, in the context of an actual president this is stupid, don't get me wrong, but its not actually so ridiculous as to be un makable.
4. The "are they personal or are they classified" is also in most cases, a BS argument, certainly for anyone other than ex presidents or super high level staff, but just because by now its probably BS, as Smilth would not charge on a bunch of personal documents, its not absurd to think either the judge or the jury or someone would have to check to see whether the documents are actually classified. Its on this last point that I would most agree that Cannon is out of her depth. This may be the first case v. Trump, but it is by far the first case against someone accused of taking documents, so there is some way to deal with the whole issue of whether the document is classified in the first place. I would have a hard time believing that its a jury question, but it is some sort of question of fact.
Re legal arguments 1 and 2, is it accurate to say you're referring to when he was president rather than for all time? So he *used to have* the right to have them on his personal premises *when he was president*. Otherwise the whole case just evaporates.
I'd have to think the point about whether the documents are/were classified is provided for under CIPA, plus the prosecution has to have investigated their status thoroughly before they went to the grand jury. Anything less would have been insane and probably malfeasance because classified status would be the strongest facial evidence that they're government property that's subject to controls. And iirc some of the documents aren't exactly classified but are considered national defense information, which I believe is the umbrella term used in the act, and also indicates government ownership as well as controlled access.
Yes, as to 1 and 2, Trump unfortunately, and to our great shame, is different than thousands or whatever of government employees who have no right, zero, at any time to remove any document at all.
That's why Biden can have documents in his garage or whatever, whether classified or not, because (a) at one point he was entitled to have them in his possession and (b) the established standard appears to be that if its a mistake and you give them back, even when a a republican special hack prosecutor examines the case, I might add, its no harm no foul.
I agree with your second paragraph completely.
The standard is that there has to be intent to remove the documents otherwise people would be locked up for accidentally emailing a document to the wrong person. This mistakes can be disciplined by the agency under their policy but not criminally. So if you are allowed to take classified documents home and you accidentally forget to return them then you won’t be prosecuted but you may be prosecuted if your deliberately retain them.
Nobody, not even a President, is allowed to ‘take classified documents home’. Mar-a-Lago, or some part thereof, like other venues a President occupies regularly, is set up as a secure facility on a temporary basis.
Or, does she have the gumption to stick with her plan and basically dare Smith to mandamus her?
Loose Cannon will be full-on, naked pro MAGA hack from here on out. That way:
1) She'll do nicely out of a Trump win, perhaps as Attorney General or Supreme Court justice; or,
2) In worst case scenario for her (she's rebuked by a higher court and/or Trump loses the election) she'll be a right wing folk hero and can make a nice living via wingnut welfare, perhaps via a lucrative deal with Fox News.
She's obviously a stone, partisan right wing crank, and so care's not a fig for her reputation in legal circles; and moreover she certainly possesses no personal incentive to stop carrying water for Trump. So she won't.
Bingo. Everything else is commentary.
While I am cynically inclined to agree Cannon is in the tank for Trump, I think she's at bottom a careerist who will try to do some straddle supporting Trump in part but reluctantly following the law. Meanwhile, she will delay delay and delay.
It's more than idle curiosity for me, but Cannon is such an odd duck-- or more to the point, has behaved so oddly-- that conclusions aren't easy. Except that I start in agreement with Dana Decker that she's completely suspicious of this case and of the government in general, and I also agree with everybody else that she's been working to delay the hell out of this case from the start. And she's been so conspicuously subservient to trump that I have to wonder if she'll be able to maintain composure when he's in her courtroom (if that day ever comes).
On the one hand she can't be a complete dummy, and iirc she's been a prosecutor and an appellate court clerk. So in theory she should know generally how judging is done. So she should know when she's being completely bonkers, like the special master thing much earlier and now this jury instruction BS. They're both bonkers enough that the circuit has reason to pull the case from her, and if her aim is delay until after the election, that isn't something she'd necessarily want to risk.
On the other hand, there are stories from David Lat about how at least 2 or 3 of her clerks have left early, which is supposed to be almost unheard of, and with no penalties from their firms, which is supposed to be even more unheard of. It would indicate that she's a terrible boss and a terrible judge who doesn't have the foggiest idea what to do, so far over her head that she might as well be diving with Bruce Willis in The Abyss. Which is understandable. She's inexperienced, it has a lot of complexities, and she seems bent on being creative about what should be settled procedures and straightforward law.
No reason she can't be both-- suspicious of the prosecution and the government and doing her best to stretch it out as long as she possibly can, and incompetent as well as inexperienced enough that she doesn't understand how to stretch it without inviting the circuit to either put her on a tight leash or remove the case altogether.
The real oddity is that if she *is* in the tank for trump (which I think she is) and knows what she's doing, the most effective way to throw it would be to run it in both orthodox and dilatory ways, eventually get to attaching jeopardy, and then just direct a verdict at an early point. There's essentially no appeal from that and only very, very slim chance of recourse, from what I understand.
So it's hard for me to see her as masterminding a coherent plan. And that's oddly disappointing-- if she's going to be evil and do evil, then she should at least know what she's doing. But she doesn't seem to.
I'm glad Smith seems to have picked this point as his Rubicon, and that the method seems as non-confrontational as it can be under the circumstances. Pointing out a clear error, giving her a chance to correct it and proceed, not asking for removal now but giving warning, but not even warning he'll ask for removal but just for instructions from the circuit. It strikes me as a smart stance. I hope the hell it works.
So it's hard for me to see her as masterminding a coherent plan. And that's oddly disappointing-- if she's going to be evil and do evil, then she should at least know what she's doing. But she doesn't seem to.
This is a key characteristic of MAGA, they know they're not getting it really right but they are certain everything else is an evil conspiracy so they'll have animated conversations about conspiracy theories, discussing them as conspiracy theories wildly thrashing about for some grain of truth, anything at all, they can push forward covered up with masses of anecdotes about all the people they know who know all these people who sleep with guns under their pillows.
I've sat there listening to this kind of conversation and I have no idea how to say anything while it's going on. It's an impenetrable ball of antagonism and aggression.
So many people who think we can live with this have no idea how far out many of them have gone.
"she's been so conspicuously subservient to trump that I have to wonder if she'll be able to maintain composure when he's in her courtroom (if that day ever comes)."
It came and went about 10 days ago when Trump attended a hearing that did not require his attendance. I assume he wanted her to know he knows who she is. It would be a shame if anything happened to her family because of something she did to be an actual impartial judge.
"It would indicate that she's a terrible boss and a terrible judge who doesn't have the foggiest idea what to do, so far over her head that she might as well be diving with Bruce Willis in The Abyss. Which is understandable. She's inexperienced, it has a lot of complexities, and she seems bent on being creative about what should be settled procedures and straightforward law"
I seriously, seriously think that Altoid has this correct as noted above. I might take a moment to confess that this has happened to me....you think you know what you are doing, that you can see a clear safe path forward....but you are just wrong.
How to phrase this? In the Oak grove I was trying to save from the saw, an honorable task I thought, or the matter of 38,000 lbs of spoiled chicken breasts sitting on a rail siding....up to this evening I am not sure I have forgiven myself for these gross failures....but in both instances there were lies that I wanted to believe as true...I was not an Arborist in the first instance nor an FDA inspector in the 2nd...I was in over my head....but I was able to escape, though it was difficult...by simply admitting I was wrong, and, in over my head.
It can be good to write things at night, I guess...I hope Judge Cannon finds a similarly safe way out of her self created morass. Best Wishes, Traveller
“In the Oak grove I was trying to save from the saw, an honorable task I thought, or the matter of 38,000 lbs of spoiled chicken breasts sitting on a rail siding....up to this evening I am not sure I have forgiven myself for these gross failures....but in both instances there were lies that I wanted to believe as true...I was not an Arborist in the first instance nor an FDA inspector in the 2nd...I was in over my head....but I was able to escape, though it was difficult...by simply admitting I was wrong, and, in over my head.”
Um… wtf? It’s in English, but I have no idea what this means or how it’s relevant to anything else you’re trying to say. Thanks for sharing though, I guess.
Traveler is a lawyer, and is describing two cases he or she now regrets having taken. Analogous to Judge Cannon, Traveler was in over his or her head, and realized it at some point, to Traveler’s credit.
Yes, it was somewhat confusing, but I think that’s the gist.
Or maybe they wrote something late at night and woke up to find the page covered in gibberish.
It's tough to be in over your head in a pile of chicken breasts. Oak logs would be even worse.
trump never appoints anyone without compromat on them and it shows.
You assume that Trump is more systematic and disciplined than he actually is.
Yeah, he didn't care one whit about who all those Federalist Society picked judges were as long as they sucked up to him when he met them and they didn't have any "Trump hater" smell from past writings.
Something is keeping him out of prison and it isn't living a blameless life.
IMHO, the following is a useful model for understanding Aileen Cannon, aka a map in lieu of the territory.
She's a member of a tribe. There are three tribes. The Good Tribe believes in capitalism because, even though they may never have heard of it, they have an implicit belief in Adam Smith's theory of moral sentiment, which is to say that they treat other human beings like fellow human beings.
The Right Tribe believes in the version of capitalism in which competition is good until "I" am the one who is losing, and then competition is bad. The Left Tribe believes that capitalism is bad.
Aileen is a member of the Right Tribe, who correctly believe that we're in big trouble when the Left Tribe is in charge. The Left Tribe correctly believe that we're in big trouble if the Right Tribe is in charge. The Right Tribe and the Left Tribe agree that the Good Tribe are naive apologists for the bad tribe. The Good Tribe correctly believe that the Right Tribe and the Left Tribe are in the "unconscious incompetence" phase of the learning process.
Thus, Aileen is not consciously aware of her incompetence. Fortunately, "conscious incompetence" is the next phase, which is when her incompetence is constrained, and Jack Smith is in the "conscious competence" phase.
Like I said, it's just a model.
I should mention ... the model correctly assumes the super rich are whispering in her ear.
I like how in this model the members of Good Tribe apparently have no political beliefs whatsoever. Apparently, "Adam Smith's theory of moral sentiment... they treat other human beings like fellow human beings" isn't itself a political leaning.
I'll make the potentially erroneous assumption that you're open to the possibility that your conclusion might be wrong.
Adam Smith is the author of capitalism's founding documents. Anyone that knows the first thing about capitalism is familiar with "The Wealth of Nations" (1776), which is volume 2. Very few people are aware of "The Theory of Moral Sentiments" (1759), which is volume 1. V1 explains the "be moral in every context" principle, and V2 explains the "how to be moral in specific contexts" method.
Milton Freidman's "Capitalism and Freedom" (1961) is the Right Tribe's bible. Milton's idea is that capitalism and freedom absent morality is so much easier. And it is, but only in the next quarter, and then it's so much harder.
Capitalism, science, democracy, and etcetera are all essential elements of a modern egalitarian (which is in lieu of authoritarian) political system.
I could go on, but I trust I've made my "I'm not full of horse manure" point.
BTW: We're all members of the Good Tribe. Many people have figured that out. Others will need help to get there.
If you think you have to be against something, you're right. How about being against excluding people from "my" tribe?
I think they're just pointing out that positions are political, even if they're often played as apolitical.
I think it already doesn't matter what Cannon does. She's royally messed up the case already - her practice of "shadow docketing" alone (backlog of submitted but unfiled motions by both parties) is probably already violating procedural rules sufficiently to generate appealable problems.
Don is going to skate on this one. Nice when you can choose your own judges, isn't it?
Ironically, it was Smith who chose the venue when he filed the charges in FL instead of DC, knowing it was virtually assured that it would land in her docket. Since Smith is not an idiot, I assume he had good legal and well as strategic reasons for doing so, but it's seeming more and more difficult to see this as 11-dimensional chess as opposed to a massive own-goal. Hope I'm wrong.
Also, the idea that Cannon is toying with, namely that an outgoing president can just magically declare highly-classified government secrets his own personal memos or something and just haul them off to his post-presidential residence and leave them lying around, is so outrageous as to beggar belief. If this goes anywhere, there's really no point in having an FBI counterintelligence division anymore. Just go home.
Feds usually charge where they find the evidence and the defendant lives, not in DC.
There would be a case to overturn rulings that weren't by the defendant's 'peers'.
I just finished reading a discussion of this that says they went to the district and Cannon was the judge drawn by the inscrutable hopper system. It didn't go to her because of the previous case where trump sued to get a special master, but went into the hopper as a fresh case. I don't know how many judges that district has but it's more than just her, so it wasn't a foregone conclusion that she'd get it-- and we seem to be left with a choice between bad luck or a conspiracy.
There are three judges including Cannon in that district.
She's not scared of this Mandamus dude at all. Or his writs.
+1. Well-played!
There have been a few good days when it seemed some of the many prosecutions of the Defendant were going well -- that is, badly for him. But when all has been said and done, he's been able to escape actually paying penalties. Whether it's actually paying fines, instead of putting up bonds supplied by others. Whether it's by ignoring and flouting "gag" rules with absolutely zero consequences. Whether it's further delay (aka "justice denied).
On balance, I have no optimism left.
Your optimism will rise from the dead in November.
I think we should be clear that November is an election. It's not a verdict and it's not about justice. It's about whom the country chooses to be its leader.
For some, there will be an overwhelming urge to see Trump losing the election as justice being served. Not by the MAGA base but by NY Times op-ed writers. For them, Trump losing will mean Trump has paid his price. It would be tawdry -- and divisive -- for Biden's DOJ to continue to prosecute old crimes against the loser of an election. It would set an unwelcome precedent. Therefore, the charges should be dropped. Probably Trump should be pardoned. If there is MAGA violence after the election, that will only strengthen the case for leniency. They'll quote Lincoln. With malice toward none. With charity for all. We must bind the nation's wounds. What more do you want from the man? He lost the election. Again! He's paid the ultimate price.
I'm not so sure Trump will escape justice for the rest of his days. It's not likely before the election, but after he loses I can see him being nailed for something (despite getting away with other crimes too numerous to mention).
But I'm pretty sure about this. The powers that like to dictate what news we get to see and what opinions we're allowed to hold will never tell the true story of Trump and what his rise to power in this country really has been all about. They've been complicit all along.
I would like to share your optimism (as limited as it is), but the Dems may have crossed the Rubicon with County DAs, State AGs, and Special Prosecutors all firing away in both civil and criminal cases.
Justice and punishment are for little people. The wealthy and powerful like Trump -- but really, almost anyone else with his fame and resources -- can draw things out, appeal, obfuscate, kick and scream, and generally get away with murder if they want. The only reason you hear about the occasional rich person like Sam Bankman-Fried or Alex Murdagh getting nailed is because they're the exceptions that prove the rule. And even *their* sentences are probably going to be appealed for years and may be reduced or commuted at some point, depending on how things go...
I'm sure the judge has done the math:
Worst case -- you're a Federal Judge for life on good behavior.
Best case -- you're a Supreme Court Justice for life on good behavior.
Most likely outcome -- you're a judge on the Federal 11th Circuit for life on good behavior
But we've apparently decided judges can't be removed by behavior. Only impeached.
cannon knows if trump has to face the plain text of the espionage act he's fucked
so she'd rather look like a corrupt asshole than allow that to happen
Have to wonder if there's a possible interpretation of this that is more sympathetic to Cannon. It would go something like this: she realizes she went too far with the "give me jury instructions" thing, and by sitting on those motions for so long, and wanted a way out that involved approving and angry and dismissive response from Jack Smith. That way she can say "I didn't do anything, the prosecutor was pointing out what the law is!"
I realize I'm being a wimp here, but if you were very pro-Trump but worried that being attached to him was actually going to hurt your career in the future, this is a possible way out for her without totally inflaming the Trump cult against her. It seems in many cases we see such a thing -- the GOPers want to preserve some dignity for the non-Trump future, but they also realize that at this moment in time, it's career-destroying (Luttig, Romney) to piss off the Trump cult.
The funny thing is that the first section of the PRA defines what is a Presidential record and what is a personal record. It is very clear that classified documents are not and cannot be considered personal. It's really not a hard call here, the PRA option to classify some, otherwise personal, records as Presidential just isn't in play here.
It shouldn't be, but a guy named Tom Fitton has been telling him otherwise.
Fitton runs a wacko outfit called Judicial Watch. In 2010 they sued NARA to force it to take possession of some audio tapes Clinton made when he was interviewed by Taylor Branch for a book Branch was writing. The claim was that these were presidential records, not personal ones. The judge dismissed it and said three things about the situation-- first that the suit didn't identify any procedure NARA could use to take possession, second that NARA has no authority to reclassify records as presidential, and third that she wasn't sure whether the tapes were actually presidential records or not because of the exception for diaries and notes. (IOW she didn't really get to the personal/presidential question at all but dismissed for other reasons, I think--no authority, no means. And also she didn't say he couldn't try again if he identified an agency with authority and means.)
It looks to me like Fitton has kind of spitefully misinterpreted the last two points and has been telling trump (and anyone else who'll listen) that the ruling says presidents have the right to label anything and everything they touch or think about as a personal item they can take away when they leave the White House. Even the Resolute Desk, as some people have said. It doesn't seem to matter to him that the PRA has that careful definition of what presidential records are, as you say, and that the ruling didn't even get to that question.
But this BS serves trump's purposes so he's been peddling it hard ever since he heard it.
It shouldn't be hard for the judge. Fitton lost his case because the Clinton tapes clearly fell under the definition of personal. Fitton is just wrong, but then he's not a lawyer, either (and neither am I, but at least I can read).
Agreed, it shouldn't be hard for her at all. David Lat thinks she's thinking like an appellate judge (that's where she clerked), more interested in rolling interesting propositions around in her head than she is in making decisions and shepherding things along like a trial judge should. Compare her to McAfee in Georgia and that view could make some sense.
If you ask me, Fitton, when it comes to interpreting that case, has opted to be Larry David. And he's been dining out on that story, so why would he change it?
I read the opinion about 2 years ago when this first popped up. First issue was that Clinton left office in January, 2001 and Fitton brought the lawsuit in 2010. The judge said 'Look. The law doesn't provide for the National Archive to go and get something that hasn't been classified as a presidential record. It goes on to state that Clinton classified it as a private journal, it wasn't used in his prressidency and who was the court to challenge the president's determination that it wasn't a presidential record?
There is one sentence that says that the court doesn't have the right to question the President's decision on what is or in't a presidential record. The sentence does say that. But in the context of the oral journal / history that Clinton had on audiotape in his sock drawer.
BEFORE that, there's a 15 - 20 page annotated discussion on what a presidential record is or isn't. It's very clear that anything that is used as part of the presidency is a presidential record. Even if it's just doodling in the margins. The only thing exempt is political work and personal diaries or journals. It's VERY CLEAR that a President can't just say 'Oh that? That's not a presidential record. I believe it says that repeatedly.
BUT non-lawyer Tom Fitton is hanging his hat on one sentence out of context will trump (as it were) the rest of 30-40 pages of the decision.
It's a stupid, foolhardy and incorrect interpretation. But Trump is hanging his hat on it.
Shorter Smith: what you did was wrong and the basis for mandamus in other jurisdictions, and if you continue to pursue this nonsense, we will mandamus your ass, including removing this case from you; if you think you can delay issuing a ruling on this PRA nonsense, we'll mandamus your ass.
Even shorter Smith: Act or else mandamus, but act correctly or else mandamus.
The petition for writ of mandamus would be used to compel Cannon to promptly rule on Trump’s motion to dismiss, because if she continues to dither on that until after a jury is impaneled (at which point jeopardy will have attached), then the Government will lose its ability to appeal a ruling issued at that point if it goes against them. Assuming she rules on the motion before trial, Smith can appeal if it’s granted.
There are also rules to the effect that, where the court is contemplating a jury instruction with a high likelihood of basically directing a verdict against the prosecution as a matter of law (as opposed to fact, which would require development of the evidence), the parties have to be advised of that early enough that the prosecution can seek appellate review — which again means before a jury is impaneled.
Does a Writ of Mandamus have any actual real-world effects, or is it purely an instrument to shame and embarrass a judge, because I don't see that having any effect against someone utterly lacking in shame.
Yes. A writ of mandate is an order from the reviewing court to (as would be the case in this matter) a lower court to do something. It's not just a guideline. Cannon might try to be cute in some way -- e.g., deny the motion to dismiss but hedge it (such as she previously did by denying the motion without prejudice, meaning Trump could bring the motion again -- and, more importantly, meaning the ruling was not appealable). But if she did that, I assume Jack Smith's next move would be to go back to the 11th Circuit and seek her removal from the case.
One likes to think she'd be mortified, but as you point out, she seems to be shameless.
Judge Cannon does not operate in a vacuum with these crazy requests. She is connected to the vast right wing legal network (Claremont Institute, etc) that researches legal angles and tells her (suggests during polite dinner convo?) what to say. They know Jack Smith will appeal to the 11th, but are working to cover that angle too like avoiding the full 11th. Is this corruption, not sure, but I am sure its happening to protect Trump in this case and many of his other cases.
Probably so. But she might consider that some of the central characters in this network, like John Eastman, are in the process of getting suspended and/or disbarred.