Legal AF by MeidasTouch - Appeals Court MUST GIVE TEST to THROW Judge Cannon off Trump Case

Episode Date: April 2, 2024

The 11th Circuit applying the required “3 Factor Test” should REASSIGN JUDGE CANNON away from the Mar a Lago criminal case against Trump. Michael Popok explores the “Torkington Factors” and explains how the Judge painting herself into the corner on her request for wrong-headed jury instructions from the Special Counsel finally provides the grounds for her reassignment. Thanks to our sponsor HumanN! Get a free 30-day supply of SuperBeets heart chews and a FREE Full - Sized Bag of Turmeric Chews valued at $25 by going to http://legalafbeets.com Visit https://meidastouch.com for more! Learn more about your ad choices. Visit megaphone.fm/adchoices

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Kraken's registration details at kraken.com slash legal slash ca dash pru dash disclaimer. This is Michael Popak, Legal AF. We'll judge Cannon's recent headscratcher of a decision to force the Department of Justice Special Counsel and Donald Trump's office to submit competing jury instructions, which are based on her fundamental misunderstanding and misapprehension of the Presidential Records Act instructions which are based on her fundamental misunderstanding and Misapprehension of the presidential records act and how it applies if at all to the espionage act will that

Finally be the last straw to have her be reassigned by the 11th circuit her bosses at the appellate court Under the factors they use for reassignment. That is the posit here on this particular legal AF hot take. So here we go. Let's start with what are the factors that the appellate court will use. I'll give you the factors, I'll tell you the case it comes from, and then I'll show you how those factors would apply to the various missteps and mistakes and errors made by Judge Cannon and how Jack Smith would wrap that all together and take

the most recent decision about having competing jury instructions based on a fundamental misunderstanding of the law by Judge Cannon about the role, if any, of the Presidential Records Act with the Espionage Act, where she's confused the two standards to almost suggest that Donald Trump has an automatic defense because he was president and he was able to declare all classified information, top secret national defense information, somehow his personal records under some application of the Presidential Records Act. That shows such a wrongheaded misunderstanding of the fundamental law in the case that it may provide the grounds for the 11th Circuit to reassign under their inherent authority to administer justice and to

make sure that the appearance of justice is always being maintained. The factors that the court will apply are known in Florida or the 11th Circuit at least as the Torquington factors. They come from a case called US versus Torquington. That case came from another case, a Second Circuit New York appellate case that a lot of the other courts have now used in their own way. There are three factors to that Torquington test that will applied. And I will argue here on this hot take will be applied to all of the decisions made by Judge Cannon that have been in error fundamentally about the classified document issue at the heart of the case, which stretches back all the way to her,

not one, but two reversals by the 11th Circuit Court of Appeals before the indictment was even generated by or issued by the grand jury. That's howals before the indictment was even generated by or issued by the grand jury. That's how far back she's been involved and how many errors she's made since the very beginning of the case, all under the watchful eye of the 11th Circuit. The Torkington factors are one,

whether the district court judge would have difficulty setting aside their previous views and findings. That's the first factor. And that's based on the appellate court carefully as guided by the special counsel in their brief, looking at all of the fundamental error and mistakes made by the judge.

If what they're watching is a judge sort of flopping like a fish out of water and doubling down on their prior misconceptions and misapprehensions, right? Digging in to wrongheaded understandings of the law. That's creating a stalemate in the judge's own mind of her own creation. Then the court could reasonably conclude that she will have difficulty setting aside

those previous views and findings into the rest of the case. She's so wedded to these wrong decisions, she's unwilling to leave them to make proper decisions moving forward about the case. That's factor one, and you can see where my hot takes going. Factor two is that the reassignment of the question as part of the factor, the 11th Circuit will question whether reassignment from this judge to another judge in the Southern District of Florida, and there's another 15 or 16 of them, will preserve the appearance of justice.

Appellate courts all the way up to the Supreme Court care about the appearance of justice or the appearance of impropriety of the judge. But they're looking at it from a five or 10,000 foot level and looking down at the case and saying, would a lay observer, a lay person, not a lawyer, armed with all the facts relevant to the judge's decision-making to date, conclude or come away with a fear

that justice was not being done in the Fort Pierce courtroom of Judge Cannon. Yes or no. Thumbs up or thumbs down. That's the second factor, the Torquington factor. The third Torquington factor to be applied by the 11th Circuit in evaluating Judge Cannon's behavior and conduct is whether reassignment would cause any waste or delay. Now, the most recent decision by the judge is a gift, I would argue here, to the special counsel. One of the few gifts that Judge Cannon has actually given every time she's made a fundamental error in the case,

clear error, a manifest injustice, it's always against the Department of Justice and the people and for Donald Trump. So the other way to have her removed is to argue some sort of bias or lack of impartiality. I will tell you here, so we don't blow smoke or sunshine, that's very difficult. It's very difficult to prove that a judge,

and there's a long line of case law that says decisions against you, even if every one of them is against you, is not enough to prove bias or lack of impartiality. So I would not go that route. I would instead go the torquing 10 factor route and argue if I were Jack Smith for reassignment to invoke the appellate courts inherent authority to administer justice and as part of that to reassign judges to accomplish that, right? That is what they are empowered to do in their power to reassign. And then I would argue that this recent decision by Judge Cannon just 10 days ago, and we're waiting for to see what Jack Smith does next, in which she ordered the two sides without having set the trial date to submit competing jury instructions before she's even settled the law or read the briefing on the law about the application of the Presidential Records Act to the

Espionage Act. And I will tell you that those two things do not exist in the same sentence, in the same movie. Presidential Records Act cannot be a defense to Espionage Act or obstruction of justice, but she is conflating the two things, a president's power to declare something as personal papers with the espionage acts and the obstruction of justice count in the indictment. Shows that she has, as Torkington case would say, a misapprehension, a series of previous views

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sure that under the Torkington factor, she should be removed or reassigned from the case because, and then he'll list all of the mistakes that she has made, right? That she's made mistakes about the Classified Information Procedures Act. She's handled the procedures incorrectly, putting the Department of Justice inappropriately back on its feet, allowing Donald Trump to commit graymail to threaten to use classified information during the hearing in order for the Department of Justice, without having it protected, in order to have the Department of Justice drop some of the claims. That's exactly what this classified information procedure sack was designed to avoid. So she's made SIPA mistakes.

She's made witness protection mistakes, including grand jury witnesses forcing the government to reveal the names of witnesses when they should not have. She has interfered with the prosecution even before there was an indictment and got reversed on appeal and admonished by the 11th Circuit even before the case went to the grand jury. When she interfered with the search warrant process and the documents that were obtained in the execution of the search warrant and the use of a special master to review documents as opposed to letting the Department of Justice do it with their own people. These are all the series of mistakes along

with these jury instructions about the law that doesn't exist, forgetting that she is supposed to be and that's what the person in the black robe is supposed to be, which is the lawgiver, not the jury. The jury's not supposed to determine the Presidential Records Act versus about whether it applies to Espionage Act claims as a defense. That's for a judge to decide, but she doesn't wanna make the ruling. And that is the stalemate or the inability

to set aside her own bias, her own rulings and findings and views going forward as a tororkington factor to have her removed. Then they will then argue that all of these things indicate that she has painted herself into the proverbial corner judge canon. And she is now making decisions centered around her fundamental misunderstanding and her own views that are now infecting

all of her future decisions. So Torkington factor number one for me, weighs heavily in favor of the reassignment of Judge Cannon. Factor two, does the appearance of justice require that Cannon go? And I would argue again, that the appearance of justice to preserve in the public's mind that justice is being done with equal balance scales

going in as opposed to her putting her fat thumb on the scales against the Department of Justice and making the job for the prosecutor even more hard than it already is. That alone is a factor that weighs heavily in favor of removing and reassigning Judge Cannon. So the second Torkington factor for me is that if a lay person, a non-lawyer, with armed with all the facts of all of her mistakes and errors, misapprehensions of law

and misjudgments would conclude that there is a justice problem in that courtroom and an appearance of impropriety by the judge, she goes. Again, these are the factors to get rid of the judge on reassignment, not because she's biased or prejudiced. That is such a high burden that it's almost never granted. You have to be able to file a affidavit, a sworn statement under oath if you're the government, which basically lays out that she's at a cocktail party, said nasty things about Jack Smith. I mean, it's that high of a burden,

but not the reassignment requirement. And the 11th Circuit also has sort of a three strikes in your route, what I call the lemon law, which is if the judge has shown to be, how would I say this nicely, defective, they can be recalled, they can be reassigned. So you have that tension also going on in the 11th Circuit case law. And then the last factor, I think also weighs, the third Torquington factor weighs in favor of the reassignment of Judge Cannon. So I think it's all three factors, one way or the other, tips substantially in favor of the Department of Justice and the reassignment of Judge Cannon. The third factor is would her removal at this moment

create waste or wasted resources? The answer is no. Because she has refused to make decisions in the case, has allowed it to flounder and not set it for trial, her removal now will only actually lead to less waste, not more. It's the opposite. Her removal and replacement

with a more seasoned, sophisticated, professional judge, and I can think of almost every other judge in the Southern District of Florida where I practice, would be able to now get this case, work with their clerks to review where the case is at right now, how many motions by the government are pending that haven't been ruled upon by Judge Cannon,

how many are pending that were filed by Donald Trump that haven't been ruled on by Judge Cannon, get them all ruled at a big hearing, set the case for trial, and then work on jury instructions, not now, but like a week or two before jury trial after there's been full briefing of the law in front of the judge. And this new judge, in my hypothetical, would not be confused about the presidential records act, the PRA, the espionage act, and the obstruction counts in the case. They would be able to understand that there are clear margins and bright lines between these various laws and that it does not, the presidential records act, provide a defense to Donald Trump and we shouldn't be doing jury instructions on this issue at all. So I would argue that the third Torkington factor

actually works in reverse because of Judge Cannon's conduct to date, the new judge would be more efficient and get the case actually tried before the November election where it belongs. So here's the wrap up for the hot take. Kind of broke out into a Patreon, legal AF Patreon there for a minute.

There are factors that the appellate court, the 11th circuit will apply when Jack Smith goes there on the appeal and asks for a mandate to have the judge as a remedy to cure up the lack of justice going on in Fort Pierce and asked for her to be reassigned. They'll apply the Torkington factors. There are three of them, all three of them tip

in favor substantially of removing judge, kind of reassigning her, bringing in a new judge into the case and having them handle it moving forward. That is the way to go. The way that I would not go if I were Jack Smith's special counsel is to argue a much harder standard under 28 USC 455, which is that there is bias or there is some sort of appearance of impropriety by the judge based on family relationships or the fact that Donald Trump selected her as a judge, because that's almost an unattainable standard for a trial lawyer like myself

to achieve. But this other one, the Torkington factors, the inherent authority of the Appellate Court in the Administration of Justice to reassign, that's where he's got to lean in if I'm Jack Smith. That's where Jack Smith has to lean into the case. I think it's gonna be, as soon as he submits his response to the judge about the jury instructions, he can't actually give her a set of jury instructions on this point. He's got to defer and say, here's a brief judge

that tells you why you're wrong and why you're asking the wrong question. Your question asking is wrong. So we shouldn't be required to give you the answer. Here's why your question is wrong. You've abdicated your responsibility as the lawgiver in the case. You haven't decided and you've decided wrongly

on the fundamental issues. The request for the jury instructions indicates your misunderstanding and misapprehension of the fundamental law at the heart of this case. I'd set it up that way. Let her then respond. She often takes the bait. She seems to be very thin skinned, which often comes from being an immature judge who hasn't been on the bench that long. Let her respond. Take that response along with all the other things I outlined at the top of the hot take all the way up to the 11th Circuit. Have them apply the Torquington factors to reassign Judge Cannon and get a judge who's been around the block who knows how to handle a case like this assigned to the case.

I assure you it will take that new judge and her or his law clerks a week to get up to speed, handle hearings in the month of May and get the case tried before November. I'll continue to cover it right here on Legal AF and on the Midas Touch Network. We have a podcast. We call it Legal AF for a reason. Find out why. Join us on Wednesdays and Saturdays at 8 p.m. Eastern time. And then I do hot takes like this about every hour or so every day, at least on the Midas Touch Network. So if you like what I'm doing, Michael Popok, you can give me a thumbs up, leave a comment,

I'll talk back. That's how you signal to the algorithmic gods that you want more of this content coming to you, not less. And then if you like what we do on Legal AF the podcast, then you can follow us and join our Patreon, which is patreon.com slash Legal AF, where think of it as like a Ted talk in a law school, have a baby. And we're doing teachable moments and Popak talks and things by Ben Mycelis that teach you about the fundamentals, the molecular level of the things

we can't even do on a long hot take. So until my next hot take, until my next legal AF, this is Michael Popak reporting. Love this video? Make sure you stay up to date on the latest breaking news and all things Midas by signing up to the Midas Touch newsletter at MidasTouch.com slash newsletter.