Jack Smith Scolds Judge

"Trump's defense counsel is more impressive than people give them credit for."

By and
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Things get heated in Trump’s classified documents case.
In a court filing this week in Donald Trump’s classified documents case, special counsel Jack Smith challenged Judge Aileen Cannon by vowing to appeal any decision that included the Presidential Record Act in jury instructions. David and Sarah discuss Smith’s public move and what it means for the case.
The Agenda:
—Sarah’s recaps her defamation law musical experience
—Justice Sotomayor’s age raises questions about the right time for Justices to retire
—Is Trump’s defense counsel actually good?
—Jack Smith’s frustration with Judge Aileen Cannon
—Answering questions from high school students
—Yes, we’re still discussing work-life balance
Show Notes:
—Presidential Records Act
—New York Times Company v. Sullivan

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Comments (58)
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  1. Avatar photo
    Marc Frischhertz

    I beg Sarah and David to do a deep dive into Judge Cannon’s handling of the documents case. In November 2023, Smith requested SEPA section 5 deadlines. She denied his motion stating they would be set at the March 1, 2024 hearing. We are now in April. I don’t think they are set.

    Is she incompetent, corrupt or both?

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    Matt Anderson

    I’m sure it was unintentional, but a bit of an oof when discussing “purpose driven” lives. Purpose manifests itself in so many ways even for us attorneys. One doesn’t need to work 80 hour weeks to find purpose in life or in a rewarding legal career. Sure those of us working a pedestrian 50-60 aren't on the shortlist for SCOTUS or even equity partner in big law, but we find immense purpose in those hours coaching, teaching, volunteering and parenting. Heck, stay at home parenting is no less purpose driven. My wife felt called to stay home with our four kids and even to home school one of our boys with learning disabilities. I can assure there is as much purpose in her work as any high profile paid career. All of us parents are burning the candle on both ends whether in the office or at home. Let’s not so narrowly define “purpose driven lives” so that it excludes the high calling of parenthood or a legitimate desire to be home for dinner most nights.

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    NashLives

    On Sotomayor, let me just provide the Machiavellian calculus for a moment. Type 1 diabetes corresponds with an average reduction in expected life expectancy of 5-15 years for a female adult without other comorbidities (if you believe the literature). If you take that seriously, her expected life span is ballpark 64-75. Now maybe there are other factors that will push her out of that range (ie high quality medical care, diet and exercise, etc), but at a high level that's a baseline expectation. It's not appropriate to take the national average life expectancy as her expectation given her preexisting condition (we want to know her expected life span conditional on her characteristics, average is irrelevant). So it is of course appropriate to discuss her stepping aside at her current age, partisan politics aside.

    And I don't buy at all that the opinions of elites about this don't matter. Of course they matter! The opinions of any individual elite may be irrelevant, but all of these ppl care about their legacies and how they're perceived in communities of their peers. Idk, I guess I just disagree with almost everything David said in the first five minutes of this episode (sorry David!).

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    PaulH

    I think it would be interesting for David and Sarah to dig into the evidence in the hush money case. They seem to think that a conviction is likely but it seems to me that some critical facts are unknown. Most importantly, my understanding is that the prosecution must show that Trump intended to conceal a crime.

    Leaving aside the issue of whether the hush money constituted a campaign donation (which may not be decided by the jury), there is a real question of whether there was an intent to evade campaign donation laws rather than just conceal the fact that the payment itself was made. Is Michael Cohen really going to testify that he told Trump that the payment was an illegal campaign donation and that the payment scheme was an means to hide the crime? (fixers usually provide their client's plausible deniability) Is Cohen a credible witness? (his story has shifted many times) Is anybody going to provide contrary testimony? (It seems likely that there is someone in the Trump organization that could do so). Unless there is more evidence out there than I have seen, I think it is going to be difficult for the prosecutor to convince 12 jurors beyond a reasonable doubt the Trump intended to conceal a crime.

    On the other hand, if he is convicted, I think he will likely get jail time. Sure, as David points out, the normal result would be a monetary fine. On the other hand, there was nothing normal about the $355 million dollar verdict in the NY civil suit. And the judge in this case seems every bit as anti-Trump as the judge in that case.

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  5. Avatar photo
    Stephanie

    Re: Judge Cannon and Jack Smith. I think that Sarah did not clearly represent the situation Jack Smith is in regarding Judge Cannon's moves to cut off any options he has to appeal bizarre rulings.

    What she appears to be trying to do is dodge any ruling he could appeal now, before the jury is empaneled. That's why she ruled against the PRA dismissal motion by Trump, without prejudice.

    Once the trial is underway, double jeopardy attaches, and she could allow the PRA defense (which she should have definitively squelched as it is invalid--top secret defense documents are Trump's personal property???) and issue the nonsensical jury instructions, and there'd be nothing Smith could do except ask for a writ of mandamus. Not impossible, but a very high hurdle and risky.

    I don't think he showed any disrespect at all to Judge Cannon, who is a very smart cookie, and is playing games.

    In terms of "speedy trial" it is in the best interests of the country (I believe even per the SCOTUS) not just the defendant. And most especially in this case as we could end up electing a criminal to the Presidency.

    Judge Cannon has again puzzled experienced federal prosecutors by now requesting a speedy trial request from Trump. Legal pundits who no longer are giving her the benefit of the doubt think it might be to support her own "defense brief" should Smith ask the 11th Circuit to take her off the case--to prove that SHE is not the one dragging her heels, even though she's not addressing backed-up motions on her docket.

    More and more it seems the way to look at this is that she and Jack Smith are engaged in a hugely consequential game of chess. Each one's trying to corner the other. I think this is highly atypical of the behavior of a Federal Judge.

    There are much better podcasts to get all the information than AO, when it comes to the Trump cases. This one's a total outlier when it comes to the Trump cases. If you only listen to AO you'd side with Trump.

    Aside from that and the expected partisan skewing (part and parcel of listening to all sides), I always enjoy AO. It's livelier and holds my attention much more than the other Dispatch audio offerings. Audio/radio takes a certain approach because you only get one input channel.

    Off topic, if you listen on Apple Podcasts, there now is a transcript available for all pods.

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      Patterico

      “There are much better podcasts to get all the information than AO, when it comes to the Trump cases”

      I agree. The information you get here is skewed by a lot of partisanship and downright errors.

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  6. MathewA

    Regarding work vs family life I'm reminded of the old saying. "How do you spell love? T I M E"

    If you are working 60 hours a week. That just leaves VERY little time for family. And as Sarah noted on recently, you can't have two priorities.

    Note that's not to say you are a "bad" parent, or that your kids still can't grow up to do just fine. But if you are working that much (assuming it's not just to make ends meet" then it's clear what your priority is.

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  7. Avatar photo
    Merrijane

    First, I feel for Jack’s poor high school teacher who is unknowingly up against Sarah and David.

    Second, others may have said this already, but the reason career success isn’t included in a religious conception of good family/marriage is because it is very, very easy for fallible humans to default to the position of neglecting their family for their careers. If you look at it sideways, it’s a little like that situation of celebrities living in ways that they can afford (single parenthood, etc.) but that would negatively affect the vast majority of people who seek to emulate them. I think David’s caveat that you must have alignment of goals with your spouse does a lot to counter that natural impulse, but only if you take seriously your spouse’s capacity to cope and are actually willing to curtail your career for your spouse’s happiness. And alignment doesn’t mean you pressure or convince them to do it your way. As both Sarah and David noted, your relationship with your spouse trumps everything.

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  8. Neil Alice

    I like that this podcast generally presumes good faith, even when talking about lawyers.

    Many of us, for example, likely suspected that Robert Hur’s refusal to file documents-related charges against the current President was partisan politics. But after hearing Sarah, I’m more willing to accept that too many jurors in fact would view the current President as too doddering to convict.

    In the same spirit, let me offer a defense for Judge Cannon regarding the documents-related charges against the former President. Judge Cannon’s prior appellate experience may have taught her that jury instructions are especially tricky for high-profile defendants, like former Virginia Governor Bob McDonnell. Maybe the Enron case, too.

    It's generally safe for a judge to instruct the jurors that they must find, as a factual matter, whether a potential defense applies. It's riskier and flirts with a reversal on appeal to rule that a defense cannot legally apply. And Judge Cannon probably doesn’t have too many previously approved instructions to rely on for charges against a former President.

    Jack Smith may care less than usual about getting a reversal-proof conviction because of the upcoming election and the chance for a future self-pardon (if that’s a thing). And since he seems to want a trial soon, it seems doubtful that he’ll seek a time-consuming pretrial appeal about instructions. Frankly, if the legal defenses are as farfetched as he says, then no reasonable juror will believe any testimony about them, so he might as well give Judge Cannon the instructions she’s looking for.

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  9. Avatar photo
    Michael Berkowitz

    About kids: They have their own natures and they're also shaped by their environment, part of which is their upbringing. Good luck figuring out how much of each goes into any given decision -- and don't forget free will. That's why I take neither credit nor blame for my kids. I'm happy when they're good, and luckily that seems to be their default setting.

    I'm a wee bit miffed that Ms. Isgur didn't mention the advice I sent her when she was expecting her first:

    𝑀𝑦 𝑤𝑖𝑓𝑒 𝑎𝑛𝑑 𝐼 ℎ𝑎𝑣𝑒, 𝑓𝑟𝑜𝑚 𝑜𝑢𝑟 𝑒𝑎𝑟𝑙𝑖𝑒𝑠𝑡 𝑑𝑎𝑦𝑠 𝑎𝑠 𝑝𝑎𝑟𝑒𝑛𝑡𝑠, 𝑏𝑒𝑒𝑛 𝑜𝑓 𝑡ℎ𝑒 𝑜𝑝𝑖𝑛𝑖𝑜𝑛 𝑡ℎ𝑎𝑡 𝑎𝑛𝑦𝑡ℎ𝑖𝑛𝑔 𝑡ℎ𝑎𝑡 𝑘𝑒𝑒𝑝𝑠 𝑦𝑜𝑢 𝑓𝑟𝑜𝑚 𝑡𝑜𝑠𝑠𝑖𝑛𝑔 𝑡ℎ𝑒 𝑐ℎ𝑖𝑙𝑑 𝑜𝑓𝑓 𝑡ℎ𝑒 𝑝𝑜𝑟𝑐ℎ 𝑖𝑠 𝑖𝑛 𝑖𝑡’𝑠 𝑏𝑒𝑠𝑡 𝑖𝑛𝑡𝑒𝑟𝑒𝑠𝑡𝑠. 𝑇ℎ𝑎𝑡 𝑠𝑒𝑒𝑚𝑠 𝑙𝑖𝑘𝑒 𝑎𝑛 𝑜𝑢𝑡𝑟𝑎𝑔𝑒𝑜𝑢𝑠 𝑒𝑥𝑎𝑔𝑔𝑒𝑟𝑎𝑡𝑖𝑜𝑛.

    𝑊𝑎𝑖𝑡.

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  10. Avatar photo
    Eric

    Here I was thinking surely I must be the only electrical engineer listener from Austin but apparently there is another!

    Also LOL this is the best pod for work life balance advice that applies to basically everyone, regardless of what your doctorate is in, from JD to MD to PhD, they’ve got you covered. With that said I do actually have a PhD and my wife an MD, and I really liked Sarah’s reflection from way back on Justice Barrett’s thoughts, where you take life in phases and some phases you need to bust on 80 hour 7 day weeks for work, and sometimes you just need to be in your family era and let the work problems flow over you like water over a rock in a stream.

    The origin of this discussion, over Gen Z work ethic, is a tough one. But never forget the old adage “If everyone you meet is an a-hole, then you’re probably the a-hole.” So if you think a whole generation is full of bad workers, you’re probably just a bad boss.

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