Jack - Episode 94 | Remove Judge Cannon

Episode Date: September 15, 2024

This week, we’re still 11 days from the deadline for Special Counsel to file their immunity brief in DC. Let's take a look at the two amici briefs to the 11th Circuit requesting that Judge Cannon be removed from the Mar-a-Lago case.Then we’ll take a quick look at why claims that the 2020 election cases “were all thrown out on standing” is a lazy lie from Trump and his allies.Plus, listener questions.  CREW Amicushttps://www.citizensforethics.org/wp-content/uploads/2024/09/25-1-2024-09-03-Attachment-1.pdf Seligman Amicushttps://apps.npr.org/documents/document.html?id=25091493-seligman-a Questions for the podSubmit questions for the pod herehttps://formfacade.com/sm/PTk_BSogJGive to the Kamala Harris Presidential CampaignKamala Harris — Donate via ActBlue (MSW Media’s Donation Link) Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ  AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. Wait, what law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail. Welcome to episode 94 of Jack, the podcast about all things special counsel. It's Sunday, September 15th, 2024. I'm Alison Gill. And I'm Andy McCabe. Well, now that Jack Smith's appeal is filed down in Florida, and we're still 11 days from the deadline for special counsel to file their immunity brief in DC, we got a little breathing room, Alison, a little stretch and reflect moment. And we're

going to use it to discuss two amicus briefs that were filed with the 11th circuit in the Florida case that was, of course, dismissed by Judge Eileen Cannon on the grounds that Jack Smith was appointed and funded improperly. Yes. And given Trump's repeated claims, by the way, that none of his 2020 election cases were decided on the merits, we thought we'd debunk that for you as well. And then we'll have some listener questions. But first, it's time for another installment decided on the merits, we thought we'd debunk that for you as well. And then we'll have some listener questions. But first, it's time for another installment of Good Week, Bad Week. Maybe we should just skip it this week.

Yeah. And it's obvious. Moving on. Yeah. It's a wow. That debate, she crushed him. She crushed him. Oof.

Yes. Yeah, she did. And wow. I mean, I don't even know what to say. People have been talking about it for days and days and I can't add much to that. But I can just say that as I was watching, I'm sure everybody else had the same reaction. You know, I had been kind of tracking the JD Vance's, you know, posting about the infamous pet eating non-controversy in Ohio over the days

before the debate. And so I had been thinking like, oh my God, what is this guy thinking? How did he get duped into this, going down this rabbit hole that was so clearly false? And then in the debate, when Trump started talking about it, I felt myself saying, oh no, no, no. It was like watching somebody steer off of a mountain road. It was, I mean, not that I was rooting for the guy, but I just like, Oh my God, are we really going to do this on a debate? You're going to throw this out? It is such obvious insanity. And sure enough, man, he just went right with

it. Dude. Yeah. I did a couple of TV hits and put out a tweet about why I thought that the ABC moderators who unlike the first debate didn't agree to not fact check him. They didn't bar that from happening. And so I put out a list. I'm like, here's some things that we know he's going to say. Here are some lies we know he's going to tell that you can fact check in real time. You don't have to, you know, a lot of people, it's impossible to fact check.

Sure. It's not. There's things that we know he's going to say. You know, crime is up, 25 million illegal immigrants in the country. Just like lies that are obvious. Election was stolen. Yeah, election was stolen. Just obvious stuff. And a lot of people commented like, hey, you know, I don't see the gender confirmation surgeries by the school nurse lie or the cats being eaten in Springfield lie. And I actually said, I doubt he's going to go there.

Right? Like those, I'm going with the very, you know, the obvious lies. I don't think he's going to bring up sharks and batteries. And I certainly don't think he's going to. He wouldn't go there, but she was so masterful at laying traps that he did. And well, for the, it wasn't that people were getting gender confirmation surgery at school. It was transgender illegal aliens getting surgeries in prison. Um, and so it was a little bit of different of an outrageous, weird claim. But yeah, I was even like, he's being right now, he's being prepped to not go

there. Right? Oh, yeah. Yeah, yeah. And he did. And so that that I was taken aback. And I realized it was because of her ability to lay little traps, talking about his crowd size, talking about how Putin could eat him for lunch, talking about how everyone's laughing at him. Like these just, you would lay these little traps in between debunking one of his previous lies and then talking about her policy.

She would just lay these little traps and boy, he fell right into them. So that was where I was a little bit surprised. Yeah. I think you're absolutely right. And I think that's where you really see the former prosecutor in Harris come out. People talk about her, she talks about her prosecutorial history a lot. People always refer to that. And I think in most people's minds, they think of former prosecutor and they're imagining

like the Perry Mason moment. You know, they're like, yes, you did, sir. And isn't that, you know, were you lying when you said it or when you're lying when you didn't say it? That kind of thing. And there's some of that in criminal law and even in civil law in trials when you're examining a witness, but not much. Really what's much more common and a much more important skill is what you saw the other

night. The ability to lay those traps, to ask a question, to tee up a topic or encourage a witness to speak about something that they probably shouldn't talk about, and then you have it out there. So I really feel like she relied on that history and those sorts of trial lawyer prosecutor skills. Boy, it was to great effect. She did an incredibly capable job of luring him down roads that I'm sure none of his advisors wanted him to go down. Yeah. It reminded me of what they did to that Trump lawyer at the end of the Cohen, the hush money

trial, where they brought him up and laid these little traps and he just went off and went crazy and said a bunch of totally discredited himself, right? In the eyes of the jury and the judge. Yeah. Or Mark Meadows testifying at his own removal hearing. He destroyed himself in that testimony. So that's what a really skilled lawyer will do. They'll help the witness, an adverse witness, they'll help them kind of hang themselves. And she did. Yep. So bad week for Donald Trump. And I actually think a good week for Jack Smith. And I say that

because of the two amicus briefs we're about to cover that were filed on his behalf, you know, on the side of the special counsel and actually do what he did not do, which is to ask for Judge Cannon to be removed from the case. So I think he's getting a little boost here with some legal folks making the case for him so he doesn't have to, and also reminding the court that they can do this without Jack Smith asking. So let's head down to Florida where these two big amicus briefs have been filed with the 11th circuit. Again, they're arguing on behalf of Jack Smith. Both briefs, like I

said, do something that Jack Smith didn't do. And this, it not only takes the burden off them, but it takes the stain off of them, right, for asking for this. But they both asked the 11th Circuit to remove her from the case and reassign it to a different judge. The first brief partner, Stephen Gillers and James Sample. It's 53 pages and full disclosure, our under seal SIPA expert, Brian Greer is cited in this brief. Yeah, yes he is. He pokes his little former CIA head up in the most curious places. Also full disclosure, just to put this out there, a few years ago, CREW was actively engaged in FOIA lawsuits, seeking the release from DOJ of all the documents related to my firing. And although they did that entirely independently, I had nothing to do with those efforts.

I personally think I benefited from their work. And so I just want to put that out there on the record. Yeah, we all do. All right. So let's hit the introduction of this particular brief, the crew brief. The amici urge this court, if it reverses the judgment in this case, to order the case reassigned to another district judge on remand pursuant to the court's supervisory authority under 28 U.S. Code, Section 2106.

If the court reverses Judge Eileen Cannon's ruling in this matter, it will be the third time in under three years that it has had to do so in a seemingly straightforward case about a former president's unauthorized possession of government documents. But citing the mere number and frequency of reversals does not fully capture the problem. For some of Judge Cannon's rulings have been so unprecedented that affirming them would, in this court's words, this court's words, quote, violate bedrock separation of powers limitations and require a radical reordering of our case law limiting the federal court's involvement in criminal investigations. That's what the 11th

circuit wrote. Yeah, that's a great site right in the top end of the brief. That's like getting their attention like, whoa, we've been down this road before. Yeah. Here's what you said about it before. Reminder, they go on to say, a third reversal now will come after Judge Cannon dismissed this case in a decision that hinged on ignoring the plain text of our federal statutes and and dismissing as dicta a landmark Supreme Court opinion confirming the Attorney General's power to appoint a special counsel. A reasonable member of the public could conclude, as many have, that the dismissal was the culmination

of Judge Cannon's many efforts to undermine and derail the prosecution of this case. Early on, Judge Cannon expressed her beliefs that the criminal prosecution of a former president entails stigma in a league of its own and, quote, reputational harm of a decidedly different order of magnitude, a belief at odds with, quote, our nation's foundational principle that our law applies to all without regard to numbers, wealth, or rank. A reasonable observer could conclude, and that reasonable observer phrase is going to come in handy in a minute, they could conclude that she has acted in accordance with a

conviction that prosecuting a former president for retaining official documents, over a hundred of which are marked classified, is an intolerable affront to his dignity. So that's what the introduction says. And real briefly, the court's powers that they cited under 28 United States Code section 2106, that code says the Supreme Court or any other court of appellate jurisdiction, which is the 11th Circuit, may affirm, modify, vacate, set aside or reverse any judgment, decree or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment,

decree or order, or require such further proceedings to be had as maybe just under the circumstances. So that whole, you can remand it, review it and remand it and, you know, require further proceedings that may be just, that's the part where they can reassign. For real, yeah. This just gives them a very broad kind of field of fire, as it were, for whatever is necessary pursuant to their judgment on appeal. So they can remand it, they can direct the court, the lower court to take some specific

action, you know, or, and of course that could involve reassigning the judge. So the authors of the brief then give us a roadmap for their arguments as the introduction continues. They go on to say, here we focus on three controversies that considered together afford the court more than adequate grounds to reassign the case upon remand. One, Judge Cannon's unprecedented assertion of equitable jurisdiction to block the government from using or even viewing documents seized at Mar-a-Lago pursuant to a lawful search warrant. Two, Judge Cannon's inexplicable call for jury instructions on

a spurious legal defense that would have gutted the government's case had it ever gone to trial. And three, Judge Cannon's failure over the course of one year to move the case forward in any significant way until a one justice concurrence in the Supreme Court's presidential immunity opinion expressed approval of the novel constitutional theory that allowed her to end the case. Viewed together, these events confirm that Judge Kennan has, quote, engaged in conduct that gives rise to the appearance of a lack of impartiality in the mind of a reasonable member of the public. And that site is United States versus Torkington

from the 11th Circuit in 1989. They also confirmed that a reasonable member of the public would believe that she cannot be counted upon to put aside her negative views of the case if and when it returns to her. Accordingly, as discussed below, the court should order this case reassigned to another district judge on remand. Torkington. Tell me about Torkington. Yeah, this is a good one. Tell me about Torkington. Yeah, this is a good one. Because this comes up a lot. For sure.

So you got to put on your time machine hat, go back to 1985. It's full on like Miami vice, you know, glitz and glam, pastel suits with t-shirts, the whole nine. And then John Torkington, who's a guy who operated a booth at a flea market in Fort Lauderdale, Florida, at which he sold watches. In 85, a private investigator witnessed a salesman at Torquington's booth selling watches bearing the name Rolex and the Rolex crown trademark emblem for $27 each. Hey, deal. You know, as I was reading this, all I can think of is how good were they with

the good looking? All I could think of was it was that guy was Trump selling these watches. I'm like, how many Torquington Rolexes does Trump own? Come on, 27 bucks for a passable fake Rolex? I don't know. I might be willing to plunk down 27. Deputy Marshall then searched Torquington's booth and the Marshall sees 742 watches bearing the Rolex name and emblem. Torquington was charged with trafficking and attempting to traffic and

counterfeit Rolex watches. The district court dismissed both counts. They found that Torquington's watches were not likely to cause direct purchasers of the watches to be confused, mistaken, or deceived about the watches' origins because the cost of the watches was so low. This is important because that goes to the copyright law and it hinges, whether or not there's been a violation, hinges upon whether or not the purchaser's customers could be deceived by the fake version of whatever it is. Okay.

So what the judge, the judge in this case, the judge candidate in this case said was they're 27 bucks. Nobody thinks they're real. Come on. Nobody thinks they're real, Rolex. Exactly. Furthermore, the district court found that post-sale confusion of other members of the public, i.e. people who

did not buy the fakes, was not relevant in determining whether a good was counterfeit. That was my other question. But what about everybody else who didn't know the price of the watch? See, you too could be on the 11th circuit because that's what caused the 11th circuit to say, no, you have misread the law. The law requires not just the purchasers of the fake, but all people. So even people who didn't purchase them, if they could have been basically fooled, then it's a violation of the copyright law. Okay. So as we know, US appealed to the 11th

Circuit and they reversed based on this misreading of copyright law. In the end of their case, the end of their opinion, the court reassigned the case to a different judge. From the Torkington case, here's some of the... This is the 11th Circuit speaking in that case. They said, after considering these elements, we conclude that this case should be reassigned to a different district judge. The judge in this case has been reversed once by this court and dismissed the case at the

first opportunity by construing a motion for mistrial as a motion for entry of judgment on acquittal. The judge from the bench questioned the wisdom of the substantive law he had to apply, sound familiar, and challenged the government's decision to prosecute Torkington. For example, the judge stated at various times that he felt the taxpayer had little interest in this type of suit, that this prosecution was silly, and that it was a waste of taxpayers' money. He also termed the prosecution a quote,

vendetta by Rolex watch against the defendant. We conclude both that the trial judge has demonstrated great difficulty in putting aside his prior conclusions about the merits of this prosecution and that reassignment is necessary to preserve the appearance of impartiality. We consider at least three elements in determining whether to reassign a case to a different judge based on the original judge's actions at trial where there is no indication of actual bias. One, whether the original judge would have difficulty putting his previous views and findings aside. Two, whether reassignment is appropriate to preserve the appearance of justice. And three, whether reassignment would entail waste and duplication

out of proportion to gains realized from reassignment. So there's a lot important there, but one of the things I would point to is the way that they load up those three factors, that sentence is, we consider the three elements in determining whether reassign a case to a different judge based on the original judge's actions at trial, where there is no indication of actual bias. That's super important for our case because that means that in this Torkington case, there was no evidence that the judge had been compromised or was... There was no way you could prove that the judge was corrupt in his or her judgments. We lack that evidence. I know people are going to howl when I say this. We lack that evidence in the Jack Smith,

Florida case as well. Yes, there's a lot of circumstantial evidence and there's a lot of questions about the decisions that she's made, terrible decisions, but we're not sitting on some sort of smoking gun communication that indicates that she has literally kind of quote unquote in the tank for Trump, that she has been, her loyalty has been compromised or something like that. Right. Like we don't have text messages between Trump and Cannon's clerk saying, hey, you know, we don't have that, but you don't need it if you can meet the Torquington factors. Exactly. The court is saying like, even without an indication of actual bias, we'll still remove someone when we don't think that they can be fair going forward

or we need to preserve the appearance of justice. And that it wouldn't be a waste of time to reassign it. So in the Torquington case, by the way, what you just read, the judge that was removed had only been reversed once. Whereas if Cannon is reversed here on her dismissal, she will have been reversed three times, twice during the special master debacle. And the third would be overturning her ruling that Jack Smith wasn't appointed or funded properly, her ruling to dismiss the case. The amici have three controversies to support this argument, and we're going

to break those down after this break. So everybody stick around. We'll be right back. Welcome back. Okay. Now we're back into the amici brief. Over the next several pages, the brief reminds the 11th Circuit of their decisions to reverse canon on the special master controversy plus two other issues, the jury instruction controversy and this undue delay that they referred to in the intro. In the special master case, which happened before the indictment, you will recall that Trump filed a separate lawsuit to get back all of his documents after the search and to appoint a special master to review them all and determine what the government could have access to. In order to even have his case heard, Donald Trump had to establish jurisdiction in that

lawsuit. Because Judge Cannon couldn't find any jurisdiction arguments, she told the parties to brief on jurisdiction and specifically ask for arguments on something called equitable jurisdiction. Now here's a little history note, a little history lesson in the middle of the law lesson. In British common law, which is where of course our law was derived from, there were courts of law, which decided civil cases and awarded damages and courts of equity, which also decided civil cases, but in a way that was different. The goal in the courts of equity was to return property or land or tangible stuff. And the idea was that courts of equity were really just following a just result as opposed to very strictly following civil law, codified law. So that's the difference between equitable courts and courts of law. There are still some elements of equitable relief

in United States federal law, but it's very rare. Most statutes, most laws say, if you do this, if you're guilty of doing this, then you pay the other person or you pay a penalty or a fine or something like that. Most legal relief is money. But in some, sometimes you, the courts will act to give someone their stuff back. Exactly. Yeah. And the DOJ argued, one of my favorite phrases in this whole debacle was, sorry, you can't establish equitable jurisdiction through inequitable means. And on more than one occasion, I compared that to an episode of the world's dumbest criminals that I saw. It was about a crack deal, a drug deal where one guy gave the other guy some crack. And then instead of paying for it, the other dude ran away with the crack and the money.

That happens sometimes. Then the other guy actually went up to a cop and asked him if he could help him get his crack back. That does not happen often. No, you cannot get justice for illegal shit. Trump, you can't seek equitable jurisdiction for the stuff you stole. You can't establish equitable jurisdiction through inequitable means. George Conway compared it to what O.J. Simpson actually ended up going to jail for. Somebody stole a bunch of his sporting paraphernalia and had it in a hotel room in Vegas.

And O.J. went in armed, guns blazing to steal back his stuff. Right. No, you can't steal your stuff and then say, well, I just was getting my stuff back. So anyway, in December of 2022, the 11th circuit ruled that there was no equitable jurisdiction because Department of Justice, not Jack Smith, he hadn't been appointed at that time. Actually, I think it was eventually, it was like that was right when the change happened because he came on in November and it was in December, but Merrick Garland and the DOJ argued most of this special master

case. The 11th Circuit ruled no equitable jurisdiction. Judge Cannon, you were wrong, forced her to vacate her ruling, reversed her ruling. And they also, the second thing they reversed her on was her denial of a stay in the matter so that Jack Smith could appeal to the 11th Circuit. She tried to shut that down. And so that's a second thing. And I forgot about that. That the 11th circuit overturned. So those are the two prior reversals. And the third reversal would be this one, the dismissing on the appropriateness and funding of the appointment of special counsel, Jack Smith. That's right. So then the brief covers two more controversies, the jury instruction and the undue delay.

So here's a reminder of the bizarre jury instruction she asked for from the...this quote comes from the amicus brief. March 18, 2024, Judge Cannon ordered the defense and the government to submit competing drafts of jury instructions on the very Presidential Records Act defense that she had seemed to reject at the previous hearing. And she further ordered that the draft instructions must assume that the following quote scenarios were quote, correct formulations of the law. Scenario-

They were not. Yeah. Pretend what I'm saying is right and then write me an instruction that says I'm right, basically is what she said. Okay. So scenario A posited that the jury in an espionage act prosecution may make factual finding as to whether the government has proven beyond a reasonable doubt that a record retained by a former president is personal or presidential

using the definition set forth in the Presidential Records Act. Scenario B posited that a president has sole authority under the Presidential Records Act to categorize records as personal or presidential during his her presidency. That neither a court nor a jury is permitted to make or review such a categorization decision. And that an outgoing president's decision to withhold records from the National Archives must be deemed to be his categorization of those records as personal under the PRA. Yeah. Yeah. Neither of those things are real. She actually asked the

government to assume the law isn't the law and then write up jury instructions based on that legal error. And then, you know, even if these, you know, were, I mean, it was just, it was the most bizarre jury instruction I'd ever read. And the government, Jack Smith wrote a thing. He was like, look, even if you somehow believe that that's what the Presidential Records Act says, this case has nothing to do with the Presidential Records Act because the 11th Circuit in your special master BS ruled that these do not belong to him. So can we stop? So we have to use the 11th Circuit.

We have to do this. And he filed a scathing response and she reversed herself on that. So it's not something the 11th circuit reversed. It's something she reversed herself on. That's right. And let's not forget that in the midst of all of this craziness around, you know, assume this non-legal thing is actually the law and now write a jury instruction for it. The way she teed this up would have kneecapped the government in the middle of the trial because this wouldn't have come up until it was too late to appeal her misreading of the law. Right? So the jury instructions at the point in the proceeding when you were arguing over jury instructions, it's too late then to take an interlocutory appeal to challenge

the judge's reading of the law. So it was both infuriating, but also kind of crafty by her in a way. And then we saw that again and again in a lot of her decisions in this case. Like, I'm going to rule for the prosecution, but without prejudice. And I'm free, you're free to bring it up later at trial again after it can no longer be appealed. Now, one thing, you know, they have these three issues here. I'm surprised they didn't add a fourth and a fifth issue. We'll talk about the undue delay in a second as the third issue, but I thought a good fourth and fifth issue would be first of all, that ruling, her ruling to unseal witness lists.

Where Jack Smith filed a motion for reconsideration saying, this is a clear legal error. You held us to a higher standard. We only have to show good cause and you're holding us to a much higher standard for that. And that's against the law here in the 11th circuit. Here's all the case citations and all the precedent. And so I thought it was odd that they didn't include that because, you know, Jack Smith called it a clear legal error that would lead to manifest injustice. It was very strong language, but they didn't include that in this amicus brief. And they also didn't include the fact that two judges called her, senior judges in the district had called her and told her early on that she should recuse from the case and she refused to do so. And the reason I bring that up is not, it doesn't necessarily make a difference except when you're talking about

the Torquington factors. Meaning, a reasonable person has to assume that you can't be unbiased. And if two judges in your district thought maybe it was a good idea, it's not just the public. It's not just the fake New York Times who is finding that the judge might be showing favor here, right? These are two other judges. So I'm surprised they didn't bring that up too. Yeah. I think initially when you start talking about this, you say that, yeah, good argument with respect to the unsealing witnesses thing, because it really involved a very, you know,

a misreading of the law. But I think you're onto something here with respect to that factor of preserving the appearance of justice, which is according to the 11th Circuit in Torquenton is a reasonable person standard. Well, in this case, you have a pretty reasonable person, another federal district judge in the same courthouse who is, I would argue, per se reasonable, about as reasonable as you're going to get, saying to her, you should step down because this is going to look bad. Yeah. Wow. So that's a pretty solid piece of evidence on the, yes, this is bad for the appearance

of justice side. But yeah, they opted, crew opted not to go with that. But you got to think that that's lingering in the minds of these beloved circuit justices, but we don't know that for a fact. So, Undo Delay is the last one they cover and they bring it up like this. They say, two things were known to the entire world in 2023 and 2024. Donald Trump historically had pursued a strategy of obstruction and delay in legal cases brought against him.

And if he won reelection, he was likely to pardon himself and or instruct his attorney general to drop the federal cases pending against him. That is the context for evaluating the undeniable fact that before administering the coup de grace that ended the case, Judge Cannon failed to resolve numerous pretrial motions and issues, leading many to suspect, rightly or wrongly, that she hoped the case would meet its doom in a second Trump administration. Yeah. And that rightly or wrongly is important here because it's the appearance of bias.

As they said in the factors in the Torquington case, there doesn't have to be overt bias. So rightly or wrongly, if the appearance of bias exists in the minds of reasonable people, including two judges, but they didn't bring that up. I think she has it here in spades, but there's no hard evidence of it, the bias. But enough of us feel like she's in the bag for Trump to make us question the integrity of the proceeding. Yeah. Yeah.

You got to put it in the context of everything else that's going on, even the things that he said. And yeah, I think this is a very sensitive situation and it's one in which many, many, many people believe, rightly or wrongly, that there's some, that there's a- We could all be wrong. She might hate Donald Trump and love the government. What's the Shakespeare line?

There's something foul in the state of Denmark or something like that. Yeah, something rotten in the state of Denmark. The stench, right? Now the brief then goes over some of the obvious delay that she's caused. And they say, they list, for example, by March 2024, she still hadn't set a trial date. She created a logjam of unresolved issues on her docket. She held days of hearings on long settled issues. And there were baseless motions that remained inexplicably unresolved.

And she didn't hand them off to magistrate judges, which is common in that district. And something that they didn't mention that they probably also could have mentioned was her weird secret docket that added a whole other layer of litigation on what could be redacted once it's filed on the public docket. They didn't add that. I would have added that. But they go on to say, Judge Cannon's delays were not entirely attributable to the complexity of the case either, because that's what Trump always argued, it's a very complicated case.

And here's where our friend Brian Greer makes an appearance. The crew brief says, indeed, former CIA lawyer experienced in espionage act prosecutions wrote in May, 2024 that, quote, if the defendant were not Donald Trump, this would be a relatively routine Espionage Act prosecution for unlawful retention of classified records. Yet over the course of 11 months, Judge Cannon has made almost no progress. For real.

Yeah. Congrats, Brian, for making it into a brief. There you go. Well done, Brian. So the description of Cannon's undue delay continues. So congrats, Brian, for making it into a brief. There you go. Well done, Brian. So the description of Cannon's undue delay continues. They say Judge Cannon had failed for four months to rule on Trump's motion to compel more discovery from the government.

As to dispositive motions, Judge Cannon had ruled on only two of the seven that Trump had filed while insisting on extensive hearings for each one. And as to the trial structure, Judge Cannon had not yet addressed a single substantive issue. Still, ahead lay decisions about presidential immunity, attorney-client privilege, and protection of classified information under the Classified Information Protection Act. Judge Cannon's delays were partly attributable to her refusal to delegate pretrial motions to a magistrate judge, a departure from the normal practice that maximized her control over the case.

Although Judge Cannon had resolved this positive motions at a glacial pace, if at all, up to that point, she now moved with the alacrity to end the case. Only two weeks elapsed between Justice Thomas's concurrence and her issuance of a 93 page opinion dismissing the case based on the unconstitutional appointment theory augmented by an additional unconstitutional spending theory. Mm-hmm. Yep. So she could move fast when she wanted to. Yep. And then they wrap up with the Torquington factors established by

the 11th circuit that you laid out earlier. A, Judge Cannon would have difficulty putting her previous views and findings aside on remand. A reversal here, they say, would mean that the court had to reverse Judge Cannon three times, each time because she reached out to adopt pro-defense practices and theories that directly contradicted longstanding law. Her rulings and other conduct create the appearance of an unshakable conviction that subjecting a former president to ordinary criminal procedures represents an intolerable affront to his dignity. Judge Cannon's unprecedented ruling blocking the government from using or viewing lawfully

seized evidence, coupled with her demand that the party's draft jury instructions embodying Trump's baseless PRA defense would suggest to a reasonable member of the public that her biases will infect and distort a trial on remand. B is the second Torquington factor. Reassignment is appropriate to preserve the appearance of justice. And they say, even before she dismissed the case on novel grounds that ignored both statutory authority and Supreme Court precedent, Judge Cannon's other extraordinary rulings and sluggish case administration had provoked well-founded concerns that she might be biased against the government's case and unable to manage that case impartially. And the third factor, the gains realized from reassignment would outweigh any waste or duplication.

And here they argue that reassignment will not cause undue waste or duplication as the case has yet to be tried. Indeed, much of the district court's pretrial work remains unfinished and prior published opinions will help the next district judge master the essential facts and issues in the case. So those are their three Torquington, I almost said Turkelton, Torquington arguments. Well, they finished Turkelton and they conclude, although Judge Cannon sometimes has appeared to be forging a parallel legal universe for former presidents, there's one respect in which Trump's unique status and global

visibility ought to influence the reassignment analysis. Those factors arguably make it more important than in any prior case that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Nice, nice citation of White there. So there you go. That's the crew brief. And I want to go over a little bit the second brief, which makes a lot of the same arguments, but they also in the next brief we're going to go over, argue the dismissal of the case.

They argue against the dismissal of the case for the inappropriate funding and appointment of Jack Smith and we'll hit that as soon as we take one more break. So everybody, no actually we have two more breaks this show but you know what I mean we'll be right back. Welcome back. All right let's go over the other amicus brief. This one is filed by Matthew Seligman on behalf of 18 people and entities, including George Conway, Lawrence Tribe, and Olivia Troy. I know them. Yeah, ditto. This brief is longer, 73 pages, because not only do they argue that Judge

Cannon should be removed from the case, but they also offer their arguments on why her dismissal should be overturned. So their arguments for removing Judge Cannon should be removed from the case, but they also offer their arguments on why her dismissal should be overturned. Their arguments for removing Judge Cannon are basically the same as the crew arguments. That Judge Cannon, quote, has engaged in conduct that gives rise to the appearance of a lack of impartiality in the mind of a reasonable member of the public under Torkington, and that the 11th Circuit has the authority to remove and reassign the case under 28 USC 2106. So that stuff we've all, we talked about in the context of the crew brief. Their argument that Jack Smith was appointed and funded properly is summarized as follows.

The Constitution, the statutes enacted by Congress to exercise the power that the Constitution confers and the Attorney General's appointment pursuant to that constitutional and statutory authority unmistakably established the lawfulness of the special counsel Smith's appointment. The district court's contrary conclusion was incorrect. Both the district court and apparently Mr. Trump recognized that the special counsel qualifies as an inferior officer and thus that the attorney general could, consistent with the constitution, appoint special counsel

Smith if Congress had vested him with that power. The district court held, however, that Congress had not done so and therefore Mr. Smith's appointment was unlawful. That conclusion defies the plain text of section 533, which unambiguously authorizes the attorney general to quote, appoint officials like the special counsel to quote, prosecute crimes against the United States. 28 USC 533. To reach its outlier interpretation, the district court ignored the statute's plain text to hold that, quote, officials does not include, quote, officers like the special counsel.

And it defied the commands of Congress in its enacting legislation to hold that section 533 authorizes the appointment of officials only to the Federal Bureau of Investigation. And then they go on to say, and this is great, the Supreme Court and the DC Circuit's cases confirm this straightforward statutory authority. The Supreme Court affirmed the Attorney General's authority to appoint a special counsel in Nixon. Now, the court explained that Congress quote, vested in the attorney general the power to appoint subordinate officers to assist him in the discharge of his duties. And that's citing 28 U.S. Code sections 509, 510, 515, and 533, the four things we've been talking about.

They go on to say, as the DC Circuit recently recognized the Supreme Court's binding precedent, thus establishes that Congress has by law vested authority in the attorney general to appoint a special counsel as an inferior officer. And for this court to conclude to the contrary would thus create a conflict between the 11th Circuit and the DC Circuit that would require the Supreme Court to intervene. Yeah. And then they discuss Judge Cannon's ruling that Nixon is quote, mere dicta, meaning that it's not legally binding. Here's what they say about that.

The district court justified its dramatic departure from binding precedent by suggesting that Nixon's statutory holding is mere dicta. That suggestion is incorrect. There's a lot of sentences that end with the word incorrect. The court in Nixon faced the question whether the president could invoke executive privilege to defy a subpoena issued by the Watergate special prosecutor. The court determined that this conflict gave rise to a justiciable case between an independent special prosecutor with his asserted need for the subpoenaed material and a president

with his steadfast assertion of privilege against disclosure. The court based that determination on its conclusion that the Department of Justice regulation gives the special prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. So long as this regulation is extant, it has the force of law." So just to pause for a second here, what they basically said was, yes, there's a justiciable case between what the special

prosecutors asked for and what the president has refused to provide. In order for there to be a justiciable case there, both of those parties have to be legitimate, essentially. Right? If the special prosecutor was not duly authorized or unconstitutional, there would be no case because a special prosecutor without any legal authority couldn't request anything from a president. So that's kind of how that overlaps and their holding that he is in fact lawful is core to their hearing the case at all.

Yeah. And they say that, a paragraph down. They say the existence of that justiciable controversy thus depended on the lawfulness of the appointment of the special prosecutor. Exactly. That's what the amicus goes on to say. They say that is precisely why the Supreme Court made a point to state the statutory authority on which that appointment was based. See Inray Grand grand jury investigation, which

they then quote from, attorney general statutory authority to appoint the special counsel, the necessary antecedent to determining whether the regulations under which the special prosecutor is appointed were valid, which in turn was necessary to the decision that a justiciable controversy existed. Accordingly, the Supreme Court statement that 533 authorized the attorney general to appoint the special prosecutor was not mere dicta, but binding precedent for lower courts to follow. Yep. So Judge Cannon, wrong.

Incorrect. What was that? Issue number four. McLaughlin. Oh my God. I got to go to YouTube and watch some of those. I love that show. Do you remember when Dana Carey did it? You're wrong. Sorry, Dana Carey. They go on to conclude, this is how they conclude their brief, because the plain text of the statute and binding authority from the Supreme Court established that Congress authorized Attorney General Garland to appoint the special counsel, the court should hold that the special counsel's

appointment is lawful. For the reasons stated above, the court should reverse the judgment below. In addition, the amici urged this court to exercise its supervisory authority under 28 U.S. code 2106 to reassign the matter to another district judge on remand. And Andy, they put a footnote here to remind the court that they can do that suespante. There you go. There you go. Well done. Well written. Well done.

Yeah. And good that we've got folks weighing in on these things and kind of supplementing the special counsel's record. So yeah, it's hard to see. I mean, God, I feel like I'm cursing myself here because we all said this about the immunity case. We said, there's no way. There's no way he comes out of the Supreme Court with total immunity. And then he did. So at the risk of- I think the 11th circuit will do the right thing here. I think so. Whether the Supreme Court does.

I mean, maybe we're just being unduly optimistic, but man, it just seems like this one is really stacked up against her in very considerable ways. So. Yeah. Yeah. And we'll see. Obviously we'll keep you posted. We have one more quick story and then we're going to take some listener questions, but we have to take one last quick break. So everybody stick around. We'll be right back. Hey everybody.

Welcome back. All right. One last quick thing I wanted to cover before we get to listener questions. And this was sparked by one of the dozens of documented lies told by Donald Trump during his trouncing on the debate stage Tuesday night. And this is something we hear from right wingers and Russian backed podcasters all the time, that Donald Trump's 2020 election cases never got to the merits. He said this during the debate.

They were all dismissed on standing, a technicality. They said I had no standing. Imagine that, a president without standing. He went off on that for a while. Well, Rich Bernstein from the Society for the Rule of Law, which was established by Judge Lerig and George Conway, this is a conservative think tank, and also Rich Bernstein, former clerk for Justice Scalia, he has some things to say about this Trump claim. He says, to cite just a handful of 2020 cases, many decisions rejected merits arguments offered by Mr. Trump, his campaign, his electors, and his supporters. State

Supreme courts in Arizona, Nevada, Pennsylvania, and Wisconsin rejected such arguments as wrong on the merits. Trump v. Biden, Ward v. Jackson, Law v. Whitmer, and canvas of absentee and mail-in ballots of November 3rd, 2020 general election, to name a few. He went on to say federal circuit courts covering Pennsylvania and Wisconsin also rejected claims by Trump and his campaigns on the merits. C, Trump v. Wisconsin Election Commission,

Donald Trump for President, Inc. v. Secretary, Commonwealth of Pennsylvania. I mean, he's the party in that one. He's the named party. And so did a number of state trial courts and federal trial courts in Michigan. Now, even in Georgia, he says, Trump cannot blame standing because he failed to pursue properly his express and undisputed right as a candidate to bring an election contest in the Georgia state courts.

See Trump v. Raffensperger. In addition, in Georgia, in one federal trial court, they rejected the claims of a Trump supporter on independent alternative grounds of standing latches. Am I saying that right? You are. And being wrong on the merits. See Wood v. Raffensperger. Also a word about Mr. Trump's court losses that relied on latches as a grounds, right? Latches is not a mere technical ground for rejecting a post-election legal claim. Latches protect voters against post-election gotcha claims. Take, for example, the use of drop boxes for absentee ballots.

Well before the 2020 election, Wisconsin election officials informed voters and candidates that one way to submit an absentee ballot was by using a drop box. No candidate challenged that procedure before the election. But after the election, Mr. Trump sought to throw out absentee ballots deposited in drop boxes in two counties that Biden had won by the large margins. Courts used latches to protect voters against this belated gotcha argument.

Because if the argument had been made successfully before the election, voters could and would have voted by other means, including mailing the ballot or voting in person. Bottom line, he says, just as Mr. Trump lost the election in 2020, he lost many court claims challenging those results based on the merits. So it's not just about standing. I'm standing right here. So I must have lost on the merits. It was a technicality. Technicality. Nah, not at all. All right. Questions?

At least you didn't try to say latches. I lost on leeches. They were sucking the blood from me in my campaign. For sure. All right. Questions? Yeah. And we have a link, everybody, in the show notes that you can click on to submit your

questions to Andy and me. What do we have this week? All right. This, why I picked this one will become clear only when I get to the end of it. But this one comes from Mike from Manchester. This is, hi, Alison and Andy. I've been an avid listener of the pod since the outset out here in Manchester, a small hamlet in the Northwest of England. Not only do you manage to explain the intricacies of the process, you do it in an informative and amusing way, but it appears you also have some excellent musical taste as well. Manchester has produced some of the world's greatest bands and the New Order, I'm sorry, not the, just New Order, The Smiths, James, Stone Roses. And then he sent us another message in which he basically said, oh, I forgot to add Oasis.

So thanks for that. Oh, sit down. Oh, sit down. Yeah. Exactly. No, that's not Oasis. That's James. I'm just being clear there, but I said sit down because I don't want to hear Oasis.

All right. So I'll just give you Stone Roses then because I'm't want to hear Oasis. All right. So I'll just give you Stone Rose's thing. I'm a huge Stone Rose fan. All right. Anyway, onto my question. After watching the Harris v. Trump presidential debate, I've seen on my socials that the Donald may have admitted to some more criming. Could you please explain what the Logan Act is and what he may have done wrong?

So this brought back so many, I don't know, seizures from Michael Flynn days. I was like, Oh my God, I guess we should, we should actually answer this. The Logan act is a toothless beast that has never once successfully been prosecuted in the history of the United States. And that is why I know people want it to be a thing, but it will never be a thing. Exactly. Exactly right.

US Code 18 USC 953. I think it was made law in 1917, if I remember correctly. But in any case, never really been successfully prosecuted. People talked about it a lot as the only motivation we had for bringing the case against Mike Flynn. That is not true. It was not true then, it is not true now. Yes, in our conversations, people brought it up like, wow, it could actually be a Logan Act. Like in the context of like, look at that, we might've actually hit on a Logan Act, which we didn't and we didn't pursue it. But it basically prohibits private citizens from engaging in like diplomatic discussions

with foreign governments, right? It's not a bad idea. So when you have discussions in the, like when you just mentioned that, you know, oh, I might even have a Logan Act here. Do you have any discussions with the Department of Justice about the Logan Act at all? I mean, like, are there, is there ever any like, oh, well, this is possibly Logan Act, but we've never successfully prosecuted it. So we're not going to bring it. It's never even considered, is it? 21 years. This was the only time I'd ever heard the law mentioned. I didn't know what it was the first time I heard. Of course, looked it up and

realized that on the surface, it seemed to fit. Mike Flynn was a private citizen, the president, who he would be working for. Trump had not been inaugurated yet, so there was no Trump administration, and yet he was interacting directly with the ambassador from Russia. substantively like negotiating votes on UN Security Council issues, things like that. But it's not something, there's no prosecutorial record. Nobody was looking to do that. It was really just kind of a weird kind of thing. What we were concerned about was that this might be indication of the link between the Trump campaign, which was, I guess, then the Trump transition team was actually linked to the Russians. But anyway, that's- Why do you think it's never been brought?

Because I mean, it has some teeth. I mean, there is a small fine small fine and, you know, up to three years in prison. I think, well, I think because it exists in a gray area, it is fairly common for members of the transition team to contact representatives of foreign government during that intermission period, but not in the way that was done here. It's usually like introductions and who should we speak to and let's line up a call from my guy to your guy on inauguration day or the day after, that sort of thing. It's like ceremonial, blah, blah, blah. But it does happen.

So, if you're looking at, you know, any case, if you ever tried to bring a case based on that, you would have to deal with some very strong motions of like selective prosecution because people are not prosecuted for that. So that's why I think that alone would make it a very tough case to bring. So it's not like something like seditious conspiracy where it's only been brought a couple of times successfully in the history of the country, but you're not going to face those same pretrial motion hurdles with a case like that as you would with a Logan Act. Yeah. And seditious conspiracy is a very serious charge, right? Thankfully, it doesn't happen.

You don't really typically have the factual basis to bring that charge. Whereas here is almost kind of the exact opposite. Logan Act, almost every incoming brand new administration, you don't see it. It's not an issue between, from an administration that's been reelected, obviously, because they're already in. So, it's only new administrations and it happens with most of them. There's some sort of low level contact and that sort of thing. But what we were worried about here was a national security threat, a counterintelligence threat, and that's what we were investigating.

But anyways, that was, I thought, an interesting question and we had to go through it so I could get over my seizure on having read the Logan Act again. All right, so last question comes to us from Le Crazy Frog, which I think maybe is some sort of allusion to French affiliation there. This person says, hello to the two, I'm sorry, hello to two of the smartest legal commentators whose laser sharp analysis and their mellow and captivating voices are always fascinating to listen to. Well done. I'm going to overlook the run on sentence there because I just love it. All right. Quick question regarding Mike Pence issue. It seems to me that the presumptive immunity bar is fairly straightforward to overcome.

Would it be possible for Jack Smith to argue that if it was some other president not seeking reelection that was in place on January 6th, the conversation with Pence would clearly not have taken place. Therefore it was not an official act, but the act of a candidate. I see. Kind of an interesting question. I do think she's onto something there. And I think the more effective use of this fact pattern would be to say, if a conversation had taken place between the president who was not running for office and his current vice president on January

6th, then clearly that is not official. That's not part of the president's duties. That is purely- Well, that and the sitting president not running for reelection would have no reason to have that conversation. Exactly. That's what I was trying to get to, but I was circling it. And Jack Smith alludes to that in his superseding indictment. And I talked about this in my sub stack piece about why he added the phrase, you know, who also happened to be president, Donald Trump, who also happened to be president at the time.

Right? Because it's secondary. Yes. Yeah. And so, you know, when, like crazy Frog, when we talk about this is a candidate talking to the president of the Senate, not a president talking to his vice president, you're exactly right. And this may be an argument that Jack Smith might make to prove that he was acting as

a candidate and not as the president president because this conversation with Pence or the president of the Senate would never have taken place in the first, if he weren't running for office. I think you're definitely going to hear it. You're going to hear it because of that. And you're also going to, you're going to hear it because it's president candidate speaking to president of the Senate, but it's also candidate speaking to co-candidate. Yeah, running mate.

Speaking to the other guy, the running mate, the guy who's running with him. Pence had something to gain theoretically by doing the wrong thing there if he had chosen to do that. Whether or not the argument's going to win, I don't know. But I think it's a valid argument. And I think we'll hear something like that when this case goes forward. Well done. Excellent questions. Thank you very much. Again, there's a link in the show notes where you can ask us questions. And we will see you next week. It's going to be very interesting to see when, you know, because this, the brief on immunity

in the DC case isn't due until September 26th. But the appeals, right, down in Florida, we've now have these two amicus briefs and we should be able to see some resolution on these fairly soon I think. I don't know that the 11th circuit, I think they're still waiting to be fully briefed and then once they're fully briefed they have a couple of weeks to schedule the oral argument, right? It will definitely be after the election, just so everybody knows. And then we'll know also who it's going to be assigned to, which three-judge panel. Once they're fully briefed, then they

assign the case to a three-judge panel. So we'll keep you posted as always, but thanks for listening and thanks for your questions. Do you have any final thoughts today, Andy? No. I mean, I think another week that we didn't have any major filings, but I think these two amicus briefs were really interesting and definitely add to the kind of context that we're thinking about down in Florida. So yeah, you never know what's going to come down the pike. And the only way to find out is to tune in again next week and see. Yeah. And I wrote this up, these amicus briefs, I wrote them up on my sub stack, mulcheroat.com. Check that out if you want, it's free over there. And thanks for listening and everybody will see you next week. I've been Alison Gill.

And I'm Andy McCabe.