It was troubling that Judge Aileen “Loose” Cannon even held a hearing on Trump’s motion to dismiss his Florida indictment. I felt concerns she’d do so were overblown for reasons I’ll discuss in a bit. What matters in the moment is that Trump’s pet judge turned him down, even though Donnie Boy himself showed up in her little (literally) courtroom for today’s proceedings.
While reporting and analysis is only hours old and much more will no doubt be forthcoming, you can get an initial take from this piece by CNN. While Trump has a number of motions pending todays hearing was about two different motions to dismiss. On site reporting during the day suggested the judge was skeptical of the arguments presented by Team Trump but anyone who follows court proceedings knows that judges have a way of surprising folks when making a ruling. I’ll admit, ridiculous as the motions were and my belief that Cannon would wind up denying Trump I assumed we wouldn’t get a ruling until tomorrow. Monday at the latest although as I’m about to explain she probably didn’t want a weekend’s worth of speculation.
Many judges and virtually all experienced ones would have denied both motions without a hearing. Some pundits, in an attempt to be kind, or fair suggested that as a young and inexperienced judge she was simply going the extra mile to minimize problems with the 11th Circuit. She could certainly use some goodwill with them. Leading up to today talk has increased about the possibility of her doing something that would give Jack Smith grounds to ask the 11th Circuit to not only overrule her but remove her from the case. One article I read suggested the 11th Circuit was already considering it! Cannon has to know she’s on thin ice. I’ve said before and will say again The Federalist Society has at least one of their people down there doing some serious hand-holding to keep her from going too far.
Cannon knew there was no basis in law for her to agree with either of Trump’s motions. She knew that long before today. She also knew how swiftly and perhaps even harshly she’d get slapped down by the 11th Circuit if she ruled for Trump and for all the reasons I’ve cited I wasn’t worried she’d actually give Trump what he wanted. She does after all have plenty of other and more subtle ways to help him!
Still, today made for some interesting moments. From CNN:
Before the judge were two of the nine motions to dismiss that the defendants have filed in the case. Cannon first heard Trump’s claim that the law prosecutors used to charge him for allegedly retaining national defense records without authorization was too vague to be used against him. Fewer than three hours after the hearing, Cannon rejected that claim.
Trump’s second motion argued that the Presidential Records Act – which governs how White House records are handled by an outgoing administration – required that the case be thrown out. Cannon hasn’t yet ruled on the second claim.
The judge, however, expressed skepticism during the hearing toward both requests for the charges to be dismissed, and she suggested that some of the issues the Trump legal team was raising would be better left to a jury to consider.
That part about matters being better left to a jury to consider deserves a closer look. In fact, the actual opinion spells out how Cannon might intend to help Trump (in the end):
“Although the Motion raises various arguments warranting serious consideration, the Court ultimately determines, following lengthy oral argument, that resolution of the overall question presented depends too greatly on contested instructional questions about still-fluctuating definitions of statutory terms/phrases as charged,” Cannon wrote.
Pay close attention to that part about jury instructions. Judges can and every day do influence the outcome of a trial when during jury instructions they explain the applicable law and what jurors can take into consideration AND what not. As well as what weight to give to experts opining on various matters, just as they do about assessing the credibility of witnesses. More bluntly put, the judge can if she so chooses influence the jury to give more weight to Trump’s/his lawyer’s arguments on the two matters covered today than is warranted! If Trump is acquitted then that’s the ballgame. Unlike a convicted defendant, prosecutors can’t appeal a jury’s verdict.
Cannon can, and likely will hold hearings on other Trump motions and anyone who thinks he’s done coming up with bullshit, frivolous motions is kidding themselves. As she did today with two frivolous motions Cannon will indulge Trump for as long as she thinks she can get away with it. And it’s also worth noting there was no indication about a trial date. In response to an earlier request from Cannon both sides proposed a trial date. The Prosecution wants to start in July and the Defense about a month later in August. Cannon was silent on the matter.
I think it’s safe to predict she will hold off setting a date, and instead schedule more motion hearings and waste more time. In part to try and block any DC trial from starting in the extremely unlikely case SCOTUS issues a quick ruling after hearing oral arguments on Trump’s ridiculous “Presidential Immunity” claim. All she has to do is stretch things out until well into September, when early voting has started in some states or is about to. DOJ policy doesn’t prevent a JUDGE from starting a trial, only from prosecutors filing charges. Still, starting a trial in mid to late September would be explosive far beyond any measure. Practically speaking if a trial hasn’t begun by August then this case won’t go to trial at all before the election.
THAT is judge Cannon’s game. All today’s hearing (and ruling) was was a dog & pony show. A sort of: Look, I’m being even handed and I DENIED Trump’s motions so I’m like totally impartial and not at all in the tank for him! As I say, don’t be fooled. Not for one second.
One last thought. Trump knew damn well Cannon would rule against him. Now he has ammo he can use to rail against the system. Mark my words we’ll read and hear nonsense from him to the effect: People say judge Cannon is biased towards me but she’s proven she’s a Trump hater like everyone else in the system. And he’ll toss in some “Witch Hunt” type stuff too.
(You can read judge Cannon’s ruling here:)
Don’t be fooled indeed. Until there’s a trial date we’ve got bupkis. I don’t know what the appellate hasn’t stepped in yet–she really makes the federal court system, and especially that area, look very, very, bad.
I do however fail to see trump’s ammo in this one because should he try the “oh, she’s biased against me” crap, one could just say (and many probably will) “well, you picked her dumb-ass”. I”m not saying he won’t do this because he is that stupid but it just makes him look even more incompetent (no bottom to that particular barrel).
“If Trump is acquitted then that’s the ballgame. Unlike a convicted defendant, prosecutors can’t appeal a jury’s verdict.”
I don’t think that’s entirely correct. If the prosecutor has reason to suspect that the judge’s “instructions” would or could have led to a verdict favorable to the defendant DESPITE ALL THE EVIDENCE PRESENTED, the verdict should be potentially appealable. There have been plenty of cases where a judge’s instructions were considered so flawed that the judge was essentially telling the jury how they should vote based on the JUDGE’S opinion–not the evidence. (Granted, most of these cases have gone against the defendant but when the JUDGE’S INSTRUCTIONS are at fault, the prosecution has a chance to appeal the verdict.)