Indictment Watch: The Cannon Conundrum

A gag order on Trump ain't gonna work.

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Should Judge Cannon recuse herself from the Trump case? What’s the legal standard on willful retention of documents? Will the Finding Nemo Seagull defense serve Trump? What about gag orders? Sarah Isgur and David French keep you up to date on the trials and tribulations of Donald J. Trump.

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Comments (74)
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  1. Dan A.

    I read the definitions section of the PRA as being clear about what personal records are (and it’s limited). Why is Sarah apparently reading the president as having carte blanche on this determination?

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  2. Kottinghome

    Listening to this podcast, two thoughts came to me:

    1) In response to the Seagull Defense, allow me to present, also from Finding Nemo, the Pelican Response (to be distinguished from the Pelican Brief). To wit: "Would you shut up! You're like rats with wings!"

    2) A bit more seriously, doesn't the authority to determine what are Presidential Records, as well as the authority over the Executive branch in general, rest with the Office of the President, rather than the Person? Many other Presidential documents are attached solely to the Office of the President, rather than the Person (such as, for example, nuclear launch codes.) If the Office determines what are Presidential Records, previous decisions by the Person with regard to those documents are superseded.

    As always, fascinated by the discussions here, and grateful for your expertise and humor.

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    Bill Dyer (aka Beldar)

    Regarding the magistrate's order sequestering witnesses — as distinct from a possible gag order restricting the litigants' statements to or contacts with the press and public — I was surprised a bit by this, from a NYT piece entitled "In Trump Prosecution, Special Counsel Seeks to Avoid Distracting Fights":

    ===begin quote===
    Jonathan Goodman, the magistrate judge assigned to handle Donald J. Trump’s arraignment, did something of a double take during the proceeding on Tuesday, when the Justice Department offered the former president a bond deal that was not merely lenient but imposed virtually no restrictions on him at all.

    Jack Smith, the special counsel overseeing the prosecution for the department, opted not to request conditions routinely imposed on other defendants seeking to be released from custody, like cash bail, limits on domestic travel or turning in his passport.

    But Judge Goodman, tasked with hashing out a bond agreement during a one-day cameo appearance on the case, was not entirely on board. He suggested that Mr. Trump be compelled to “avoid all contact with co-defendants, victims and witnesses except through counsel.” Mr. Smith’s deputy, David Harbach, joined Mr. Trump’s lawyers in opposing that idea — but the judge imposed a version of it anyway.
    ===end quote===
    Paywalled link: https://www.nytimes.com/2023/06/16/us/politics/trump-documents-jack-smith.html?smid=url-share

    I agree with the broad observation of the article's headline — and, indeed, rejoiced as I first read this indictment, precisely because it is so obviously tailored, as part of a well-conceived overall prosecution strategy, to be a rifle-shot at Trump's greatest vulnerabilities, rather than a shotgun blast re-trying the 2020 election and Trump's January 6-related acts and omissions.

    But as Ms. Isgur mentioned in the podcast, the rule of witness sequestration is part of a broader prohibition against anyone corruptly attempting to change or even influence any witness' or litigant's testimony — which would be the felony crime of obstruction of justice REGARDLESS of whether the rule requiring sequestration of witnesses has or has not been formally invoked.

    Put more simply: Suppose Trump says to Nauta on the golf cart, "Walt, hand me another ice-cold Diet Coke — and remember, when you're talking to your lawyers and getting ready to be a witness, who PAYS you to hand me those ice-cold Diet Cokes." That would be a patent violation of the magistrate's order that Trump and Nauta not discuss the case except through their lawyers, punishable by contempt of court. But suppose there's an FBI bug on the golf cart (pursuant to a duly issued warrant). Jack Smith's team could — albeit at the cost of likely delay in their trial date — obtain a superseding indictment which includes additional counts of obstruction of justice (i.e., witness-tampering this time, instead of evidence-tampering) based on that conversation.

    So yeah: Not invoking the rule could be a deliberate tactical choice to avoid giving Trump things to complain about on appeal or in public. But there's very much a Br'er Rabbit-and-the-briar-patch aspect to it as well.

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    Patterico

    Speaking as a prosecutor (as always in my private capacity) I could not disagree more strongly with the notion that Jack Smith would be pleased to draw a Judge Cannon.

    I agree that the calls for her recusal are going nowhere, and that having a “hanging judge” is not ideal for various reasons.

    But practicing attorneys know that there are innumerable ways for a trial judge to tank a criminal case.

    She can make terrible evidentiary rulings—like throwing out everything derived from the attorneys’ testimony—and the government’s ability to seek appellate review in a timely manner is far from clear.

    If we ever get to trial (see below) she has immense discretion over day to day trial issues—things like scheduling issues, issues relating to dismissing jurors, ruling on objections, and so forth. Her attitude towards the attorneys may have an effect on the jurors’ perceptions. The list goes on and on.

    And I think there is every reason to believe Cannon is in the tank for Trump. Her ruling in the previous case was crazy, which was apparent to me the second I read it; and it became apparent to everyone when the 11th Circuit slapped her down. She is a bad judge and she loves her some Trump and we ought to just acknowledge that because it is obvious.

    And I think most significantly, there is her discretion over granting continuances. Unlike Sarah, I am very confident Trump will try to avoid trial before the election and that Cannon will go along with him. In fact, I offer to make Sarah a bet on that score, and if I lose, I will get a temporary tattoo that says “Sarah Isgur was right” and wear it on my forearm. I’m serious.

    If Jack Smith is worried about evidentiary rulings jeopardizing his case on appeal, he can exercise discretion about what he asks for. That’s what we prosecutors do (at least I do). I don’t need some judge who loves my defendant to protect me from myself.

    Finally, I just think you might note that your respect for the Presidential Records Act argument is fairly surprising and unique even among conservative commentators (I refer to the respectable ones and not the clowns). People as varied as Ed Whelan, Andy McCarthy, and Dan McLaughlin have all poured cold water on that argument and they are, in my view, correct. Is it frivolous? If it’s not, it’s pretty damned close.

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      Bill Dyer (aka Beldar)

      It's always a pleasure to read your opinions, and I'm glad to see them posted here, old friend.

      I agree with most of your comment. I agree that just like every other federal district judge presiding over a criminal trial, Judge Cannon will have a genuinely awe-inspiring amount of practical power within her discretionary exercise. The list of ways does indeed go on and on. Trial lawyers (even in the civil sphere where I operate) constantly watch and evaluate and speculate about how fair a shake we, or other litigants, are getting, and what risks we're at. And in representing our clients, we routinely make important decisions on the basis of such very subjective, but important factors.

      All so stipulated; and all of this would be true regardless of whom the Clerk for the Miami Division of the Southern District of Florida spun up on the assignment wheel when this indictment was filed.

      But re this: "And I think there is every reason to believe Cannon is in the tank for Trump. Her ruling in the previous case was crazy, which was apparent to me the second I read it; and it became apparent to everyone when the 11th Circuit slapped her down. She is a bad judge and she loves her some Trump and we ought to just acknowledge that because it is obvious."

      Is there any evidence to support this beyond the prior civil case Trump filed? Or is it a conclusion extrapolated from that one set of interlocutory rulings in a single case that was before her from August 8, 2022, until the Eleventh Circuit stayed (pending appeal) her rulings on September 21, 2022?

      That seems to me thin gruel to support so extravagant and thoroughgoing a damnation. Will you confess to some measure of hyperbole? Regardless, will you join me in keeping an open mind?

      {Edit]: I gather that Judge Cannon's first action in this criminal case, sua sponte, was to instruct the lawyers for both sides to expeditiously gather all the necessary security clearances. Now, perhaps she's in the tank, and she's already planning on setting a trial date in 2026, or she's just making a record of looking reasonable so that can be pointed to when the DoJ tries to mandamus her over some other, vastly more consequential discretionary ruling (like, as you suggest, a continuance during an election season). But it's also the sort of thing that would be done by a conscientious trial judge in a district reputed for its rocket docket. Maybe even by a judge who made the mistake of trusting Trump's lawyers in a previous case and realized only too late (lamentably so, I'd agree) that they'd led her into folly outside her jurisdiction.

      The PRA stuff is merely the least obviously implausible of Trump's potential dodges and distractions and mitigations, and worth attention for that despite its weakness. And I'd guess Jack Smith views drawing Judge Cannon as a medium-sized black cloud that has a substantial and obvious silver lining — and that he's reminding himself, as a matter of professionalism, to keep an open mind about this very new judge.

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        Patterico

        My conclusion is entirely based on the single set of interlocutory rulings in the single case. It was so dismissive of clear precedent--and of very helpful and well-done filings that clearly told her what the law actually was--that I can only conclude she didn't read the relevant briefs and cases . . . or misread them so badly as to call into question her competence and/or fairness.

        I'll join you in trying to keep an open mind, but I can't blind myself to what I have already seen, and it's decidedly not pretty. I have to confess I go into this proceeding with the view that Judge Cannon's behavior has earned her little respect. But there is always the slim possibility she has learned from the experience.

        It's just not the way I would bet.

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          Bill Dyer (aka Beldar)

          Fair enough.

          I was perusing the docket sheet tonight. The DoJ filed a very anodyne request for protective order today, solely regarding the materials they're producing in discovery, which they say they're ready to do immediately upon its entry. The form is drawn, apparently, from an order Trump's lawyers agreed to in the New York State criminal prosecution — very standard stuff. Judge Cannon's already referred that request to the magistrate who usually assists her. I haven't read the local rules but would guess they specify when Trump's response would be due. Trump's lawyers have already filed their certification that they've contacted the specified DoJ office to get the security clearance process to get started as to themselves, even though their deadline for so doing wasn't until June 20. Of course there are new lawyers showing up on both sides.

          But overall, the impression is of business as usual and at a brisk pace. We shall see!

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  5. John.Cornell

    For reasons unknow, yesterday's issue didn't post to Google Podcasts - so I went to Amazon Music.

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  6. Aaron H Frank

    The implication behind "But Hilary did it..." is that if Ms. Clinton or any other Democrat did this today, after Mr. Trump's indictment, they would receive the same deferential, kid-glove treatment.

    The story being told, even in The Dispatch (can we please get italics in comments), is that the President had papers in his garage in Delaware from when he was Vice President, which he turned over.

    That is, at best, one-third of what happened, at least according to Andrew McCarthy at The National Review.

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  7. Don Thiry

    Mup -

    I will explain why at least this person doesn’t disregard part one of the Mueller Report, even though it does, as you repeatedly point out, state that insufficient evidence was found to justify charges related to Trump and Russia.

    You concede that part two is where Mueller strongly implied they uncovered sufficient evidence that, had Trump been anybody other than POTUS, obstruction charges would have been justified.

    What you leave out of your analysis is the obvious fact that obstruction often obstructs. Unless all the obstruction identified in part two was merely unsuccessful attempted obstruction, which it clearly was not, then additional evidence that would have strengthened the case against Trump in part one would have been discovered, potentially enough for Mueller to state the evidence’s sufficiency for any non-POTUS investigation target.

    I cannot state that this definitely would have been the case, but it seems I could if I were willing to declare uncertainties about part one to be certainties as I infer from your repeated Mueller perspective.

    I’ll state as a justifying reference here the content of your imaginary tattoo.

    😁

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      Bill Dyer (aka Beldar)

      As someone who read the Mueller report cover to cover, including every footnote, more than once, and has returned to it compulsively from time to time ever since, I was THRILLED with the bit from this podcast that you're referencing, Don Thiry, and I agree 100% with Ms. Isgur.

      I seriously doubt if there has been a day in Donald John Trump's adult life in which he hasn't obstructed justice. It wasn't until he became the POTUS, however, that it became even marginally possible to prove.

      To be criminal, the attempted obstruction need not be successful, and Trump's attempts to pressure or outright force Jeff Sessions or Rod Rosenstein or SOMEONE to r̶i̶d̶ ̶h̶i̶m̶ ̶o̶f̶ ̶t̶h̶i̶s̶ ̶t̶u̶r̶b̶u̶l̶e̶n̶t̶ ̶p̶r̶i̶e̶s̶t̶ fire Mueller, wasn't. (Both Sessions and, especially, Rosenstein deserve the nation's eternal gratitude for this, but of course won't get it.) But he slipped out of being prosecuted for that by virtue of (1) the fact that he was POTUS, and (2) some OLC memos at DoJ that are right so far as they go, but that weren't properly applied.

      (Mueller ought to have demanded of Trump a tolling agreement and waiver of all applicable statutes of limitations while he was POTUS, an option that's expressly contemplated by the OLC memos but wasn't pursued for reasons that I cannot fathom. If a POTUS agrees to toll/waive limitations, such that justice is merely being delayed, THEN the prudential arguments against trying a sitting POTUS outweigh prosecuting him; but if, as Trump would've, the POTUS refuses, the balance tips and even those OLC memos, IIRC, contemplate that a sitting POTUS could be prosecuted, because NO ONE IS ABOVE THE LAW [forever].)

      That the most simple and provable and therefore ruinous felony indictment he's stumbled into after leaving office is for obstruction of justice (and related process crimes) is therefore an example of karma refusing to be mocked. It gives me great satisfaction to contemplate.

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      1. Don Thiry

        Beldar -

        I am confused, as we seem to agree on everything except for your 100% agreement with Sarah while the point I attempted to make was that I find her excessively dismissive of part one. I do not think one can logically deem part two to be relevant and dismiss part one unless they believe all attempts at obstruction were unsuccessful. Is this your position? I apologize if I’m missing something, I am a bit sleep deprived.

        Respectfully, Don

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          Bill Dyer (aka Beldar)

          I wasn't clear. I agreed with Ms. Isgur's endorsement of part 1, and I agreed with Ms. Isgur that part 2 is still relevant, because one can be guilty of obstruction of justice even when there's no underlying crime proved and even if the attempt to obstruct justice turns out to be unsuccessful. See, for example, Scooter Libby, convicted of obstruction of justice and section 1001 false statement despite the fact that there was no underlying national security crime ever charged, much less proved, and despite the fact that Richard Armitage, not Libby, had been the leaker/discloser of the purportedly (but not really) sensitive information (Valerie Plame's employment status at CIA), and despite the fact that the prosecution never really offered a plausible motive.

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          1. Don Thiry

            Thank you, I think I now understand our disconnect - I inferred fervent dismissal of part one by Sarah, not an endorsement.

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    Bill Dyer (aka Beldar)

    With apologies for the serial posting (or, here, re-posting):

    The very best explainer for when a judge should and shouldn't recuse himself or herself for bias remains Justice Scalia's memorandum opinion in Cheney v. United States District Court, 541 U.S. 913 (2004), in which he explained why the law and the canons of judicial ethics obliged him to reject the Sierra Club's motion asking him to recuse himself in a case brought against the VPOTUS.

    In particular, it exploded the Sierra Club's misconceptions about 28 U.S.C. § 455's reference to cases in which a judge's "impartiality might reasonably be questioned." The Sierra Club's lawyers' "questioning" wasn't "reasonable" in the context of this statute because the Sierra Club's lawyers ignored the rest of the law, the canons of judicial ethics, and the operation and practice of the SCOTUS and federal courts since their founding.

    Link: https://scholar.google.com/scholar_case?case=3663421335325675419

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    Bill Dyer (aka Beldar)

    Among the most conspicuous examples of an appellate court removing a trial judge from further proceedings in a case was in the government's antitrust lawsuit which alleged — I'm not making this up — that Internet Exploder [okay, it's "Explorer," but I didn't make up that nickname] was going to empower Microsoft to monopolize the whole internet.

    Here, from the D.C. Circuit in that case, is an example of what a true appellate bench-slap looks like:

    ===begin quote===
    Canon 3A(6) of the Code of Conduct for United States Judges requires federal judges to "avoid public comment on the merits of [] pending or impending" cases. Canon 2 tells judges to "avoid impropriety and the appearance of impropriety in all activities," on the bench and off. Canon 3A(4) forbids judges to initiate or consider ex parte communications on the merits of pending or impending proceedings. Section 455(a) of the Judicial Code requires judges to recuse themselves when their "impartiality might reasonably be questioned." 28 U.S.C. § 455(a).

    All indications are that the District Judge violated each of these ethical precepts by talking about the case with reporters. The violations were deliberate, repeated, egregious, and flagrant. The only serious question is what consequences should follow....

    ....

    The most serious judicial misconduct occurred near or during the remedial stage. It is therefore commensurate that our remedy focus on that stage of the case. The District Judge's impatience with what he viewed as intransigence on the part of the company; his refusal to allow an evidentiary hearing; his analogizing Microsoft to Japan at the end of World War II; his story about the mule — all of these out-of-court remarks and others, plus the Judge's evident efforts to please the press, would give a reasonable, informed observer cause to question his impartiality in ordering the company split in two.

    To repeat, we disqualify the District Judge retroactive only to the imposition of the remedy, and thus vacate the remedy order for the reasons given in Section V and because of the appearance of partiality created by the District Judge's misconduct....

    ===end quote===

    I'll let you read U.S. District Judge Thomas Penfield Jackson's story about the mule on your own: https://scholar.google.com/scholar_case?case=17987618389090921096

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    Bill Dyer (aka Beldar)

    My take on the order forbidding Trump and Nauta to discuss the case (except through their lawyers), and on gag orders more broadly (which I think are VERY, VERY different!), as reprinted from a comment I left yesterday on Ms. Isgur's Sweep column:

    -----

    The magistrate judge who presided over Trump's arraignment instructed him on the record not to discuss the case, except through lawyers, with his co-defendant and employee Nauta, and directed prosecutors to prepare a list of others who are potential witnesses in the case, with whom Trump should then be prohibited from communications (other than through lawyers).

    This isn't in any way unique to Trump, though. It's a rule requiring sequestration of witnesses that dates at least back to the Old Testament Book of Daniel, whose insistence that the witnesses supporting claims of adultery against Susanna be separated and isolated from one another led to inconsistencies in their testimony on cross-examination — one said she met her lover under a mastic tree, the other under an evergreen oak — that, in turn, saved Susanna's life (while her false accusers were put to death). The rule of witness sequestration is so common in both civil and criminal proceedings, in fact, that among trial lawyers, the process of asking a judge to remind the litigants of it, on the record, is simply called "invoking the Rule."

    Part of the criminal obstruction of justice admitted by Bill Clinton when he surrendered his law license to avoid prosecution was based on his obvious, and ultimately unsuccessful, attempts to induce his private secretary, Betty Currie, to lie about his contacts with Monica Lewinsky.

    I'd say there's at least a 90% chance Trump will try to secretly influence Nauta's and other witnesses' testimony, and about a 50% chance he'll do it so incompetently that it results in a supplemental indictment so charging. Like the scorpion who persuades the frog to ride on the scorpion's back across the river, then stings the frog midstream, dooming them both: He'll regret having done it, but it is his fundamental nature.

    (If I were Trump's lawyer, I'd be telling him: You know, there's a chance they've already flipped Nauta, and that he'll be taping and testifying about every attempt you make to influence his testimony. This is the kind of advice Trump habitually ignores from his lawyers, though.)

    The more thorny question is what restrictions, if any, can be imposed on Trump's public statements about the case via a gag order on all attorneys and witnesses in the case. I expect DoJ to ask for one, and for Trump to oppose it. I also expect this to be the subject of an early attempt to get the Eleventh Circuit (and potentially the SCOTUS) to reset whatever balancing the trial court has tried to do in a gag order via an interlocutory (pre-trial, pre-verdict) appeal or mandamus proceeding.

    Sorting that out will take a matter of weeks, probably. Then the question will become Trump's compliance with the gag order — because however broad or narrow it turns out to be, I expect he'll nevertheless violate it. So we may have a parallel set of criminal contempt of court proceedings that could result in Trump being fined or jailed, which in turn would set off another pre-verdict trip to the Eleventh Circuit (and again, potentially, the SCOTUS).

    Trump has a constitutional right to confront his accusers that includes the right to be present at his own trial. I can imagine scenarios where he's present, but bound and gagged — e.g., if he defies the trial judge's 14th instruction to sit down and stop shouting about Hillary and Bleachbit during the testimony of other witnesses.

    But Trump can't be compelled to testify against himself nor to even take the witness stand. And if he chooses to absent himself from his own trial, and can do so without violating the terms of the conditional release from custody (in lieu of bail), he could boycott and decline to attend his own trial. Juries tend to interpret that absence rather badly, though, and I suspect that almost any attorney would quit rather than continue as Trump's counsel in a case he can't be bothered to show up for.

    [PS: To what Mr. French said in this podcast, I'd add: Invoking the rule is something ALL competent trial lawyers know to do. I've seen many lawyers exposed as novices when they didn't know how to respond when a court inquires, "Is anyone invoking the Rule?" or when an opponent says, "I'm invoking the Rule." It's most commonly invoked DURING trial but can also be applied to pretrial proceedings, including civil proceedings. It would be an abuse of discretion for ANY trial judge to say, "Yeah, sure, all y'all witnesses get together without your lawyers and talk about your testimony, that'll save us some time." So I don't expect Judge Cannon to do more than tinker around the edges with this order.

    The gag order — regarding communications with the PUBLIC, not specifically with witnesses — is where all the interesting precedent might be made here.]

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    1. Kbirkett

      I appreciate your thoughtful comments. For the confused (like myself) who have never encountered the account you mention in their Old Testament readings in Daniel, I'll share the results of my speedy research. The Susanna account is found in a chapter considered canonical by the Catholic and Eastern Orthodox traditions and considered apocryphal (not inspired) by Protestants. How did I do :-) ?

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        Bill Dyer (aka Beldar)

        Very interesting!

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      Kizedek

      Your comment was well elaborated, and I appreciate the distinction between "the rule" and a gag order. However, re:

      "I'd say there's at least a 90% chance Trump will try to secretly influence Nauta's and other witnesses' testimony, and about a 50% chance he'll do it so incompetently that it results in a supplemental indictment so charging."

      It seems, and not for the first time, that Trump is actually providing the lawyers for his co-defendants as well. This happened with Hutchinson and others, until she realised that Trump wasn't helping *her*, just himself. That *her* lawyer would be prepared to throw her under the bus.

      So, as far as such "secret" influence goes, I think someone needs to get right on top of that kind of thing! It might be varying degrees of secret and incompetent. Hence, we seem to see (according to one report I read) that "Nauta's lawyers" stepped aside to let Trump's lawyers talk to him (to remind him what's what, we might presume).

      But that's something that should be shoved in his face every time he walks out of a courtroom and in front of reporters: "Mr Trump, is it true you provided the lawyer (or funding) for your co-defendant's legal defense?" (Or, it could be put in a flattering way to help Trump admit it: "Mr. Trump, does your co-defendant appreciate how lucky they are to have your help with their legal defense?")

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