Judge Aileen Cannon Sucks - A Definitive Guide

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:53 Thomas: Hello and welcome to Opening Arguments. This is episode 1016. I'm your host, Thomas Smith. That over there is real-life incrimigration lawyer. That's because he's both a criminal and an immigration lawyer. Uh, it's Matt Cameron. How you doing?

0:01:08 Matt: Starting to think maybe I should be a federal judge. I feel qualified. I'm feeling extremely qualified right now.

0:01:13 Thomas: Oh, Well, I don't know, because the one qualification you're missing is that you're not a total right wing hack that's

0:01:19 Matt: Oh, I forgot to join the Federalist Society. That was on my list. Oh, all right.

0:01:21 Thomas: Exactly at what point Will the Federalist Society be too left for these judges though? You know, it's close, it's not that much of a joke.

0:01:29 Matt: Yeah. There's going to be like a MAGA Federalist society soon enough. Something will spring out. Yeah, that's true.

0:01:34 Thomas: Yeah. I think So, well, we're gonna talk all about Judge Canon, uh, am excited for your breakdown, because every single headline I see, Matt, makes me furious and feel insane, and I don't understand why we just let people we like this somehow be judges and there's nothing we can do, and I have a feeling I don't even know the half of it.

0:01:54 Matt: Wait, think that talking to me about this is going to make you feel less furious and less insane? All

0:02:00 Thomas: I don' t know, we'll have to see, um, we'll and have to find out after this uh short break that the uh patrons at patreon.com/law of course do not have to hear all Man, I stayed angry through that entire break, I'm so, I'm exactly, actually I'm more angry, I got a little more angry. So what in the world is going on? I mean, situate us here, where, so many trials, so many things, and there's only Only one, the Judge Cannon, is screwing up, right?

0:02:00 Matt: Right. Angry.

0:02:26 Matt: It's a big one. So it is Friday, March 22nd, 2024, as of now. As of today, I think we all understand at this point, Donald Trump has no actual cognizant dates. This was not supposed to happen. This is exactly what he wants, of course, but this was not supposed to happen now. He does technically have a date of May 20th in Florida. Nobody thinks that's going to happen, obviously, the diversions we're going to be talking about today and the absolutely out of control, wild current state of the case that we'll get to by the end. 20th, that's just a date. Nothing's going to happen on May 20. But New York, you might have heard, the New York case was pushed out because the Southern District of New York federal prosecutors dumped out some discovery that's going to take a while to get through.

There's not a new date on that yet, but the judge is open to another month or two. And obviously, Judge Marchand in New York is trying to push that as hard as possible. But when you're facing, I think it was something like 36,000 pages, you got to give them a little time. Then of course we know in Georgia, we've been following that very closely, and we know that Fannie Willis is now intending to power on. The word is as of today that she is going to be seeking a date before the election, that she's intent on that. And of course, we did see earlier this week that Judge McAfee

0:02:27 Thomas: Yeah. Yeah. Ah, yes. Yeah. Yeah.

0:03:35 Matt: Which we were talking about last week as something that he really didn't want to do. I still think he really did not want to certify it, but that does not mean that the appeal will happen. This is just an appeal, by the way, from his decision that Fannie Wills could stay on the case as long as she ejected Nathan Wade from it.

0:03:48 Thomas: Yeah, I think this is we can can do like a Thomas was right on this one, because I feel like you're like, yeah, he's strongly signaling that he doesn't want to be will not want an appeal for this. And I point out, like, do you think these people get signals like that or care about them? To which I think you agreed.

0:04:02 Matt: Yeah.

0:04:03 Thomas: And yeah, no, they don't care. They appealed right away, immediately, right.

0:04:03 Matt: Yeah. Well, they saw it, yeah, because they have to get his permission. They have to give a certificate of appeal, which is a certification, right?

0:04:08 Thomas: Oh, sorry. Yeah, they tried to get his permission right away. Gotcha.

0:04:10 Matt: Right, right. But the appeals court of Georgia still has to sign on to this appeal and has to agree to take it. And there's no way that they have to take him. And it's only going to be reviewed by one judge. So it's a total lottery. There's no way to know how that's going to come down.

0:04:21 Thomas: Are Are you saying you like the odds of a random Georgia judge?

0:04:24 Matt: Not necessarily. But I'm continuing to be positive that they will not take it. But he did make it very clear in his order that this does not stay the trial and the trial is proceeding. So we may actually hope for a pre-election trial. Fannie Willis says she's completely ready to go, and I hope she is ready to see that. D.C., of course, we know that Judge Shutkin's trial is on hold because of the ridiculous immunity case that's in front of the Supreme Court right now. Will be argued on April 25th, and I'm sure we'll be talking plenty about that.

0:04:31 Thomas: Yeah. Oh, that's good. Huh. Hmm.

0:04:48 Thomas: Yeah. Basically we knew his game plan. It was to delay, delay, delay, and he basically pulled it off. And I guess we shouldn't feel like he's too much of a genius because there's a lot of factors, including the fact that our legal system is so slow to begin with. And also, you least one Homer judge, but it sounds like, yeah, yeah, mission accomplished on that, right?

0:05:07 Matt: Think a new galaxy has been birthed in the billable hours combined that have been spent on this so far. But yeah, you pay enough money and you can get a lot of delay, just as can be delayed. So that's where we're at. But today I wanted to talk about Florida in particular because there have been some absolutely wild developments, things that nobody can explain at all. And I'm going to do my best to explain, but I'm gonna warn you up front, they don't make a lot sense, like most things that Eileen Cannon does. Just thought it'd be worth taking a look at who this person is, how she got here, and what is she doing and why, right? There's a lot of questions around all of this that I think we can begin to answer just by getting into the facts. Will start with a New York Times headline that hasn't aged so well from July 23rd, 2023.

0:05:44 Matt: Why Eileen Cannon may prove critics wrong in Trump documents case.

0:05:49 Thomas: Who wrote that?

0:05:50 Matt: Thank you, New York Times.

0:05:51 Thomas: Was this an op-ed or like actual news?

0:05:54 Matt: This was supposed to be actual news. And this Was by Draper, reporting from Miami and Fort Pierce, Florida. He's citing a bunch of her friends and associates saying what a great judge she is and how fair she is And how she's Going to do a great job on this case.

0:05:55 Thomas: Oh my God.

0:06:06 Matt: And that was after she'd already been smacked down twice. By the 11th Circuit. They're still saying this.

0:06:03 Thomas: Oh yeah. That is unbelievable. You know. Like I've already been critical of the New York Times a lot and And there's no need to rehash all that, except still, they surprised me. Still, they surprise me. Like, could you possibly think that? Had they not been alive this whole time? Were they literally born after the Trump administration's first term? You

0:06:13 Matt: Know.

0:06:28 Matt: I don't know. Reading the story did not help, although it did provide some interesting biographical detail that we'll get into, but I was not left knowing the answer to this question. As it is, Eileen Cannon is facing very likely her third rejection from the 11th Circuit, which has got to be some kind of record in such a short period of time. We're going to talk about why, But again, I just want to quickly summarize, as much as we can through the course of this hour, what this is all about and how we got here. Because it's kind of like Trump himself. If you don't actually pull back at some point, just pull back the lens and look at the whole thing, you start to forget about all the weird little trees in this forest.

0:06:58 Thomas: Oh, yeah.

0:06:59 Matt: So that's what I want to try to do here. Air. I think I might have discovered the Rosetta Stone of her incompetence, because there is a sort of argument to be had about, is she totally, just absolutely beyond reason in the tank for Trump and just doing everything that he wants? Yes, probably.

0:07:11 Thomas: Yes. That's my vote.

0:07:13 Matt: But also, I mean, this is always the classic question.

0:07:15 Thomas: Is that a, was this a T3B? A, yes.

0:07:16 Matt: I Yes.

0:07:19 Thomas: As a T3B, I don't think I've heard before, fortunately. So I think there'll be a new question. And A, the answer is yes, she's completely in the tank for Trump. But I'm open to hear counter proposals.

0:07:23 Matt: This a question I will be be asking again, for sure. But the as always in a case like this, there's what I think of Napoleon, right? That said, never ascribe to malice what can be ascribed to incompetence. And there's certainly a lot of incompetence going on. And I wanted to point out a case from the day before that Trump was arraigned, a case that has nothing to do with Donald J. Trump. June 12th, 2023, my 42nd birthday, jury selection is getting started for the trial of one William Spearman. And this is a man who's charged with a number of child pornography offenses. The day before Trump's arraignment, so she might be thinking about other things. It's possible she's not quite fully there. But she committed a couple of absolutely basic mistakes. And when I say basic, I mean like 101 mistakes that I think at this point, any beginning prosecutor, and she was a prosecutor in the same district for several years, I think about seven years, should know not to do this. Two really big things. The first one, I

0:08:20 Thomas: She used the wrong end of the judge hammer. She like held the big part and then tapped it with just a little handle. And people were like, Jesus, that's okay.

0:08:28 Matt: Can't even hear that. Yeah, it's no good. First one, I think that you don't have to be a lawyer to understand what she did wrong here. She forgot to swear in the jury, literally. And that wasn't even the worst of it. She forgets to swear the jury. And then she also decides, for some reason, to close the courtroom during jury selection. Now, if you know anything about trial practice, especially within the last couple of decades, The Supreme Court was extremely clear in Presley v. Georgia in 2010 that you have to keep the jury selection open. You have to Keep the entire proceedings open. Like, you cannot close courtrooms. And she was trying to exclude the defendant's mother and other family members from being there. And this is a basic constitutional principle. You got to have the courtroom open. And small.

0:08:29 Thomas: Yeah. Oh, wow.

0:09:10 Thomas: For like airflow or what? But it's like one of those things because you can close. What can you close court for?

0:09:17 Matt: Very much. Talking about classified documents and some other very, very sensitive things, you can move to do that. But it's very important for our judicial system that proceedings be open and that people can walk in and observe what goes on. I fully support this. And certainly your family should have the right to be there at every stage of the the proceedings.

0:09:32 Thomas: Yeah.

0:09:33 Matt: Unless they're acting up or threatening witnesses or something, then they need to be there. So this was absolutely 101 basic, just, I even tell you just how stupid this is. I actually, Casey brought this to my attention because she said, did you know about this, how bad this was? Because nobody who'd ever been a prosecutor would ever do that, let alone anybody who has ever done a trial. And she's done about four trials in her entire career. She's ever overseen maybe a couple at this point, including this one.

0:09:57 Thomas: If I was as apparently unqualified as she was, I would have at least had my laptop open on the the judge's Wikipedia for trial. Like, what is trial? Sparks notes, broad strokes. What is a trial? And then just try to follow that as best I could.

0:10:03 Matt: Stuff. Yeah. I done mean, more jury trails than she has personally done or overseen at this time. In mind, what I just said about this jury trial. The fact that she made this very basic error. And she's fortunate that this didn't actually come out too much because the man actually pled just before trial and entered a guilty plea. And he actually entered a conditional guilty plea, which is extremely unusual, reserving the right potentially to have his plea withdrawn if he could appeal what she'd been doing in the case, which again, extremely unusual to take a plea, but be like, I could still take it back because you suck, basically.

0:10:16 Thomas: Sure.

0:10:40 Thomas: What explains this? Is this just one of those like wing affirmative action cases that we see where out of the womb you're made a judge because you have right wing views.

0:10:48 Matt: Why does she suck and how did she get here? That's the question at this point. I actually took a look at her job application, to find out about people Yeah, she had to file, a you know, an application to the judiciary committee to to become a judge. It's a greatway to learn a lot of fun details about somebody. So first of all, the most important detail as far as I'm concerned is that she is exactly my age. She is 43.

0:10:53 Thomas: Job Job application.

0:11:08 Matt: I don't, like I don't like this very much. Um,

0:11:07 Thomas: Oh, second, she is a perfectionist. She cares too much. She works too hard. Resume bullshit? No, okay.

0:11:13 Matt: Yes, that's right. Not that kind of job application, fortunately. I would have loved that if she had actually read an essay to be a judge. That'd be so good. Was actually born in Colombia to Cuban refugees, wealthy Cuban refugees. Her grandfather was a in big advertising firm in Cuba that he set up in Puerto Rico later. She comes for money. She went to private high school. She went to Duke and then Michigan Law. Was magna cum laude at at Michigan Law. So, you know, again, ostensibly on paper, pretty smart. A member of the California, D.C. and Florida Bar. And of course, she has been a member of the Federalist Society since 2005. I didn't need to tell you that. You already knew that from everything that's going on so far.

0:11:22 Thomas: I'm I might see if I can get Phoebe into the Federalist Society, just to have the option. Like they have, like, a toddler's baby first, you, jurisprudence, something, you know, and then she has the option to become a judge at age 18 if she wants it.

0:12:01 Matt: Know, you should print out one of these Trump motions and run it by her, see if she does better. A member of the Moorings Yacht and Country Club since 2019, which is a $50,000 buy-in and $8,000 a year. I just looked it up. I thought that was interesting. Again, money, lots of money. Did She clerk for an Eighth Circuit judge in 2008, and then she worked at Gibson Dunn for three years. Are you familiar with Gibson Dunne?

0:12:19 Thomas: Know Brooks and Dunn, but I don't remember Gibson Dunn.

0:12:22 Matt: Dunn is substantially more evil than Brooks and Dunn, I will say. Um, uh,

0:12:26 Thomas: Agree to disagree on that. I'm not a fan of country music, man. It's pretty bad.

0:12:31 Matt: Gibson Dunn is doing everything from defending George W. Bush and Bush B. W. Gore to representing Chevron and taking down Steven Donziger to going after homeless people in those encampment cases to, uh. Citizens United, um, is

0:12:39 Thomas: Okay. I don't know, though. Should I play a Brooks and Dunn song just to get the comparison? We could, I just, I hear your case. That's a good case. I'm just saying I'm not going to like close my mind to the other side of the argument, which

0:12:54 Matt: Possible, but, uh you know as far as not great law firms go, which I don't think Brooks and Dunn anything to do with not great law firms, who knows, but Uh, Dunn also notable because they have given just about more money to political causes and candidates than any other law firm in America. So that tells you kind of what kind of people they have and what are the kinds of people who end up leaving there and going to other places.

0:13:00 Thomas: No, no, I'm Not a Fan.

0:13:12 Matt: No, I've got to tell you the same. There's some interesting details from her job application I wanted to mention. Published writings. So she has, again, it just is when you want to become a judge, you have to give them copies of everything you've ever written. And this is always a big problem for judges who've actually been out in the world, because potentially, you know, you might have decades after decades of law review articles and editorials and public appearances, and they can go through the transcripts of everything. Of the reasons that she was clearly appointed is she had no paper trail, which is very helpful if you want to get somebody on the bench who's a federalist. Publications that have to do with the law basically brags about horrible things that Gibson Dunn has done. First publication about the law is from 2010, and then eight years before that, her previous publication was Puede que el tomate reduzca tumores. Tomatoes may help produce tumors, in the El Nuevo Herald. That was her publication.

0:13:20 Thomas: Yeah. Yeah.

0:13:59 Thomas: Don't don't remember that case.

0:14:03 Matt: Not a knock on her, because I almost became a journalist myself, but she was a journalist for the Illinois Bull Herald. And so she has a bunch of really strange sounding articles, including tomatoes may help reduce tumors. Something you usually see when you're looking at a judicial application, all this kind of sets the tone for, example, the next question about any, you know, you have to give them copies of any speeches that you've, talks you've delivered, none. Interviews you've given. Now this one, you'll never guess the interview that she has given.

0:14:05 Thomas: Okay. Oh, does she have a podcast? Does she have an album? Does she do a podcast podcast? Oh, that'd be the best.

0:14:28 Matt: No, no, no. I don't think you can actually become a judge at this point if you have a podcast, but I've already, I've

0:14:32 Thomas: I'll never say never. Things are getting pretty nuts out there, Matt. Oh.

0:14:36 Matt: Made my choice. But the only interview she's ever given to the press was Eileen and Josh, a traditional wedding in Coconut Grove, Florida for The Knot, fall -winter 2009, about their wedding in Coconut Grove, Florida. And there's a lovely wedding picture. And again, I'm not making fun. They look like a lovely couple. But it's a little strange that's the only interview you've ever given in your entire career. She Lists out her legal career, again, not only Gibson Dunn, but a few seven years in the U.S. Attorney's Office in the Southern District of Florida, in the same district where she is now a judge, which we're going to find out is a very sleepy district. Not a lot goes on there. Does her best to pump up her her career the best she can, but basically she was doing appeals where she was upholding sentences in simple cases like gun possession and child pornography and keeping defendants from getting post-conviction relief, this kind of stuff I do, which again, it isn't that hard if you're the government in a lot of cases.

0:14:46 Thomas: Okay. Wow, yeah. Yeah.

0:15:26 Thomas: Like playing a game with cheat codes, you know, it's like the Game Genie of of the justice system. You get to be the bad guy and just keep people in prison. That's too easy. Do something harder. Yeah.

0:15:34 Matt: Well, that's why it caught my eye because this is what what she lists as her top cases, right? One of the questions is, basically, what are your best cases, the ones that you consider to be your best work in your career? And that's where things really start to go off the rails here, not just the wedding interview. Does mention she's tried six cases to verdict, four as a U.S. attorney, and two before administrative agencies, which, and again, I appear before administrative entities all the time. I wouldn't really call that trying a case to verdict frankly, but that's, you know, opinions may differ.

0:16:00 Thomas: Lists like, well. Well, one time I had to renew my license at the DMV and that, let me tell you, I was in front of it. Yeah. It was an ordeal. Yes. It was a trial. You could call it a trial, but it

0:16:05 Matt: Was a trial. Well, that's right. That's right of The four cases that she tried as an AUSA. She was chief counsel and to an associate counsel and two again, no knock on it. This is how you start your career, but this is not somebody you would expect to become a federal judge necessarily. Her number one case, the case that she considers to be the best work of her career, or when it was, when she served as appellate counsel to uphold a wire fraud and money laundering conviction, which, you know, is not a small thing, but it's a major federal case, but it's still, the again, biggest thing that she thinks she's worked on. And it goes pretty far down from there.

0:16:42 Thomas: Wasn't a trial at all.

0:16:42 Matt: Down the list, again, you have things like child pornography and gun possession cases, which it's not that hard to prove a gun possession case in case you're wondering, did you have the gun? Seven on the list is assert opposition, which is pretty routine stuff. And nine and 10 are administrative proceedings, once again with the SEC. So again, Again, pretty thin stuff.

0:17:01 Matt: Now, I again, want to say I am not qualified to be a federal judge. I would not apply to be federal judge, nobody wants me to be the federal judge but my, well, I do too honestly but it's not going to happen.

0:17:01 Thomas: Yeah, I Listeners, write in if you want Matt to be be a federal judge, we'll

0:17:12 Matt: But resume honestly I could make it look a lot better than this if I wanted to. I didn't go to Duke and University of Michigan Law School, but just again, practically speaking, I'm wondering now why I'm not a federal judge. Any pro bono work, no teaching experience, and on we go. So to ask you if you would like to just take the rest of the episode to listen to her confirmation hearing. It

0:17:23 Thomas: Yeah. It's that or Brooks and Dunn. So I guess. Yeah.

0:17:34 Matt: I'm going going to send you right now her confirmation hearing.

0:17:36 Clip: I asked the following two questions of all nominees before any of the five committees on which I sit. So for the nominees before us today, we'll start alphabetically. And if each of you can respond to the following to questions that I'll ask. So it'll be Judge Calabrese, Ms. Cannon, Mr. Krause, Judge Schnapp, and Judge Newman. I hope you can all unmute yourself so we can get through these two questions quickly. Quickly, first question. Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature? No, Senator.

0:18:13 Matt: You'll never guess the answer.

0:18:16 Clip: No, Mr. Krause. No, no, Senator

0:18:21 Thomas: And I am not a cat, it's just that cat lawyer's still in there, I can't figure it out, I'm still a cat on this video, at least. I'm gonna be a judge, can I be a judgments, a cat though? Meow, I guess meow is the answer, oh,

0:18:33 Matt: This is all it takes.

0:18:34 Clip: Question is, have you ever faced discipline or entered into a settlement related to this kind of conduct? No, Senator. No, senator.

0:18:40 Matt: And that's it. So this clip is one minute 20.

0:18:43 Thomas: She gonna say that? Oh, she said no, darn and

0:18:46 Matt: Yeah. This is again, this is a group hearing. It's on Zoom because we're in the middle of a pandemic at this point in 2020. She is 40 years old and she is not being asked anything about her facility with the law, about her experience, about her background. But she's also being put into a district that nobody wants, quite frankly. One of the reasons that she was nominated to this district is because she already lived in it, and nobody else wanted to go there. Southern District of Florida is divided up into a number of regions here, and she's overseeing the Fort Pierce Division, and she is the only judge in the Fort Pearce Division.

0:19:14 Thomas: Wait, this isn't where Mar-a-Lago is? Is this the random draw that she got on this case?

0:19:18 Matt: The random draw was from the entire Southern District. One judge from each district, and they randomly chose, so out of five, She came up, unfortunately. But she is the only judge in Fort Pierce. And so we got the least experienced and least qualified judge by far of the five that came up. So the rest of the district includes places I've heard of, like West Palm Beach, Fort Lauderdale, Miami, Broward County, Key West. These are all places Ive heard of. I've never heard of the Highlands, Okeechobee maybe, Indian River, St. Lucie, and Martin. Those are all the places that she oversees. This is not a district that anybody was really wanting.

Marco Rubio invited her to apply. Nobody even really knows how he got her name. But, you know, she's conservative. She's Latina. She doesn't have a paper trail. And she lives in the district. So rubber stamp. She's in. Me. So judge Cannon is appointed during COVID. Not a lot is going on and she's overseeing a few jury trials, but not very many. I think by the time she gets to the Trump case, she's ever seen maybe three or four cases. That's And incredible.

0:19:24 Thomas: Wow. I Wow.

0:20:07 Matt: It's astonishing for somebody who's now in charge of the most important federal criminal case, probably in the history of the United States at this point. No experience yeah no

0:20:12 Thomas: If She didn't suck, this would be a really cool movie. It would be the cool, like Well, Small town, whatever. You know, this judge has no experience and Then they have to do a good job, but the thing is she sucks. So geez.

0:20:17 Matt: Would yeah yeah she took the job nobody wanted and look what happens yeah no it's if it is it a different kind of person a different story it would be great but I don't want to watch this movie honestly I

0:20:27 Thomas: That Is Wow. But How, I okay, I get that no one wanted this crappy district or whatever, but it's still a federal judgeship. How, there wasn't a single question? Did drop the ball on this? Like, how, how did they ask her nothing in the hearing there?

0:20:44 Matt: Don't know if it was COVID or if just this is how they do these dinky little federal judge districts, I mean I don't watch a lot of confirmation hearings than are at the Supreme Court. So, you know, I don't know how federal district court judges usually go, but, you know, you've got Marie Hirono asking two very basic questions about sexual harassment, which that's important, but I'd also like to know maybe about your jurisprudence, I don't now, a group of people. It's a group hearing. It's not even an individualized hearing.

0:20:52 Thomas: Yeah.

0:21:03 Thomas: Crazy.

0:21:04 Matt: Was the Democrats' participation in her appointment. That was it. Let's get on to the good stuff, how she actually sucks directly. You've all heard someof this at some point, but I just want to go through the timeline because when you put it all together in the aggregate, it's pretty bad. It is not somebody who should be a federal judge. Let's I start with the fact that she was trying to get this case dismissed before it was a case, which is astonishing. It's just, it's unprecedented. In August of 2022, you may remember that there was something that they like to call a raid on Mar-a-Lago. I think it was more just going and getting some documents that he wasn't supposed to have.

0:21:33 Thomas: Yeah. When I watched the interview with that mystery employee, that was really fascinating. We don't have time to talk about it, but they, uh, make sure to use the proper terminology. It was not a raid, it was a properly executed warrant or whatever, or something like that. Well.

0:21:36 Matt: Yeah, it was actually a search warrant, as is done hundreds of times a day in this country. Warrants are carried out throughout the United States. But Cannon saw this and did not like it. She thought it was something that was really out of bounds. Bounds. She, at the defendant's request, off the bat, out of the gate, coming out just completely insane, completely out of line. The defendant is going into court and seeking injunctive relief. And so, yeah, she gets the draw at that point. Mean, we're talking before there's an indictment, right? Filed a motion for judicial oversight and additional relief. So that tells you what we're working with here.

0:22:13 Thomas: What even is that? Yeah.

0:22:14 Matt: It's nothing. And so many of these things are nothing. I the problem. And she's good at dressing some of these thing up in different ways. So holds a hearing on September 1st, and she issues this bizarre order on 5th. And this is the first of quite a few bizarre orders, as we're going to see, including the most recent one, which is about as bizarre as they get. And she decides that she has equitable jurisdiction to stop a criminal case. I mean, it's just an it, equitable is incredibly rare to have a criminal cause. It's incredibly rare. It is incredibly hard to have a criminal case stopped through equitable jurisdiction. I mean, that is just, she essentially says it's really unfortunate that they're trying to investigate the president. I don't like this. Is at risk of suffering injury from the government's retention and potential use of privileged materials in the the course of a process that thus far has been closed off to plaintiff.

0:22:55 Thomas: Normally You include the per the criminal in, you had know, the bar question the other day for probably the second time or third time, who knows about the knock and the drug thing. Normally you like call them, them ahead of time, and you're like, hey, we want to include you drug dealers in this process. So how would you like us to raid your drug den?

0:23:15 Matt: They transparency.

0:23:15 Thomas: Yeah. They compare schedules. Does this work for you? We got a big delivery that day of more drugs. So we're going to be a little busy. Can you don't normally involve the criminal, potential criminal, I guess we'll say, the alleged criminal in those proceedings.

0:23:15 Matt: Cops love transparency and very important.

0:23:32 Matt: You're saying at the beginning that you feel insane reading this, I over and over again, reading these decisions from her, I'm like, what justice system are we in? What is going on? Where does She come from? Like, what planet is this order from? And she's treating this as if there's just like property that belongs to him that's been wrongfully taken and that there's a Fourth Amendment violation here and that he should get his property back when we're talking about nuclear codes and, you know, state secrets and like names of spies across the world. Like, it's just, okay.

0:23:40 Thomas: Yeah.

0:23:58 Thomas: There's like 11 different ways that's stupid. Like, off, even if it were just his property, you'd be like, well, they had a warrant though. You see, like, you know what warrants are, right?

0:24:07 Matt: Are you on the 11th Circuit? That's, yeah, no, that's, and now we know how easy it is to file a judge application. So you should put that application together, include Your score. Not only does she do that, but she also says that we need to appoint a special master, is essentially just an outside guy to take a look at all this and decide what the government should get to use to investigate him. And usually you're talking special master to decide what goes into discovery, but we're talking like what should actually, what the government gets to look at to build a case. And she gives this nonsensical order about how the special master can use this for national security if they're investigating national security issues, but they can't use it for criminal prosecution, which of course, a lot of the criminal prosecution is based on national security issue under the Espionage Act.

0:24:09 Thomas: Me? Yeah, no, you would have to be to know something like that. I see the confusion. I am six and two on the bar exam now that with my adjusted score. So Yeah.

0:24:52 Thomas: What, why?

0:24:52 Matt: Know. And just to make it extra extra spicy, she decides to exclude 100 documents that are marked classified. She says, you know, don't even take a look at those. It's really as bad as it sounds.

0:25:03 Thomas: Okay, already, why would there be any explanation? I get that you, you want to say it's incompetence, but like it's not like these are mistakes, you, you have to do work to play your hand on the scale this hard. Like this is just She's a Trumper. Right. Like

0:25:14 Matt: Yeah. Yeah, mean, I'm saying I think she's also incompetent. And I think that that, like I said, the jury closure Thing, I think that that really does say that she doesn't know the law. But even if somebody doesn't know the law, they know they can't just stop a criminal prosecution. They can't just decide that the search warrant shouldn't have happened and that he should get his stuff back when we're talking about classified documents. So the 11th Circuit agrees, of course. Jack Smith immediately seeks a review and, you know, tries to get a state pending appeal. He immediately seeks the review and the 11TH Circuit just smacks back because, you know, usually in this kind of thing, it's like, well, you know, she made a mistake, whatever. But this is a pretty brutal decision, honestly, when they came back on the 21st of September.

0:25:19 Thomas: Yeah. It's both. Okay.

0:25:35 Thomas: Unreal.

0:25:47 Thomas: And remind me, the 11th Circuit's not like a super cool one, is it? I assume it's got Florida and it can't be that great.

0:25:54 Matt: No, it s Florida. And two of the judges on on this one are very conservative, well -known to be very conservative. But they also recognize what's going on here, and they're not putting up with it. Also, like, they have brains their heads. So, you know, that helps. District court concluded that plaintiff had an interest in some of the seized material because it included, quote, medical documents, correspondence related to taxes, and accounting information. But none of those concerns apply to the roughly 100 classified documents at issue here. Our part, we cannot discern why plaintiff would have have an individual interest in or need for any of the 100 documents with classification markings. Here's the best part. Classified Documents are marked to show that they are classified, comma, for instance, comma with their classification level.

0:26:05 Thomas: Yeah. Yeah,

0:26:36 Matt: It's incredible. You know, they're classified because they say they're Classified. What are you doing? I mean, it's just it's not subtle. This is and they're explaining this to her like she's five, like what a classified document is.

0:26:40 Thomas: Yeah. That must be, you must be like, gosh, I don't, am I talking to a toddler here? How do I, I Don't know. Okay, there's these things called laws. Cause like, yeah, now that now you think about it, it's like by definition, how could you have some personal right to anything that's classified? Like if if it's classified, that's not like it's, oh, that'S my diary where I put my name of my crush in there. So, you the nation of the United States decided it was classified too. Like, no, it's going to be something that's not personal, like right?

0:27:12 Matt: And she said the the special master can't even look at the things that say classified on them, that he can't even like, you know, decide whether or not that goes in. So then the 11th Circuit also several times has addressed now the argument that we're going to be talking about more than once, that the plaintiff, the president can declassify things with his mind, you can just decide to declassified documents. And they actually specifically say the declassification argument is a red herring. So they're saying this again, remember, this has to be important. Important. And September 21st, 2022, the 11th Circuit is letting her know this is not an argument. This is not anything to look at. At least for these purposes, it is a red herring because declassifying an official document would not change its content or render it personal. Very important.

0:27:27 Thomas: Right.

0:27:51 Thomas: Yeah. You know, by the way, if I could declassify the nuclear codes, they're mine. That's actually my nuke now. I get to own it. Did cover some of this stuff and this is so long ago that I do vaguely remember how bad it is. But Um, always fun for a refresher. Cause the specifics are even dumber than you can possibly hold in your memory. Like it's incompatible with the hardware of my brain. Like

0:27:57 Matt: So Yeah, I Sure.

0:28:10 Matt: Me too, have a timeline we of idiocy now that we can put this in the context of,

0:28:12 Thomas: Yeah. So This was the, the original event, the inciting idiot. Idiot, okay.

0:28:17 Matt: Yeah, this is when people are starting to realize maybe this is bad. This is really not looking good. Again, that was September 2022, and they're just looking at the 100 classified documents issue. They December 1st, 2022, the 11th Circuit comes back with the big one. A big, sternly worded smackdown, the second time in three months that they have reversed her. And they say this whole special master thing is not something you needed to do. Was just no reason at all that you had any kind of jurisdiction to stop this prosecution. This This is an investigation, it's not even a prosecution at at this point.

0:28:44 Thomas: Should have been like, "All right, turn in your badge and your gun." I link in you're

0:28:49 Matt: Much. She's already gone rogue. It's too late and nothing they can do.

0:28:52 Thomas: She's Like, "Give me 48 hours." Yes. Please.

0:28:56 Matt: The old thing. Yeah, we do love that one.

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0:30:32 Matt: So, you know, again, no jurisdiction. This is huge. This is a really big deal. This isn't just like, you know, you got a technical thing wrong in one of the regulations. This is like, you weren't supposed to do any of this. What are you doing? Why are we here? And they issued two decisions against her in three months in that direction that she should, shouldn't have done these things, so you have to read a couple of things from this decision just so we're clear.

0:30:53 Matt: On how stupid these conservative judges think this is, that's

0:30:53 Thomas: I At this point, I expected to be like, um, Eileen, are there any grown-ups near you? Are you, are there anything, you find a big, a big tall law grown-up who could explain any of this to you?

0:31:06 Matt: Actually, pretty much what this is right here. Uh, reasoning guides our approach to the other potential injury identified by plaintiff, and a big focus of her decision, the threat and stigma of future criminal prosecution. No doubt, the threat of prosecution can weigh heavily on the mind of anyone under investigation.

0:31:22 Thomas: Again.

0:31:26 Matt: You know, it sucks to be prosecuted, but sometimes people do things.

0:31:29 Thomas: Replace, tell me this is an improper comparison, replace Trump with those, those drug dealers from the T3B question. Now, maybe, yeah, I don't know if it's because it's FBI versus police or something. I don't know. It might be slightly different, but like, you don't get to be like, well, here's the thing about the drug dealers. They don't, they don't want to be prosecuted if that's okay. Like, are you cool with that?

0:31:35 Matt: Totally.

0:31:47 Matt: It's such a hassle. Such a waste of time. Yeah. Like, we got things things to do. So we've got drugs to sell.

0:31:48 Thomas: Yeah. Yeah. And it's like, if you take their drugs and don't give it back to them, they're worried you might prosecute them for that. Isn't that the same argument pretty much? Actually, it's even worse First, because drugs could be personal property. Classified documents really can't be.

0:31:59 Matt: No. Drugs are fun and useful and classified documents for the most part are only useful to certain people usually and doing evil things. But the court notes that ordinary experience of being concerned about prosecution cannot support extraordinary jurisdiction. So just because you're worried about him, one possible justification for equitable jurisdiction section remains, that plaintiff is a former president of the United States. It is indeed extraordinary for a warrant to be executed at the home of a former President, but not in a way that affects our legal analysis. It's amazing, yeah, that is weird. Weird that happened. Sucks for you. Literally end the decision with the law is clear, period. Like this is, you know, in the last paragraph, this is really serious.

0:32:42 Thomas: And this is probably Republicans doing, you know, like this is, that's what's so great about it.

0:32:46 Matt: No, it is. It says a she's that far gone. The question starts to be raised at this point about like, who is she working for? What do they have on her? Because this is so out of control that, So January 12th, 2024, let's move this horror show along. Something I noted here that I thought was, I don't know how much this has been talked about, but a fairly routine thing. Now she has this habit on her docket and I love reading criminal dockets. You can learn a lot from them. And her dockets are a mess because she does these long paperless orders. She's basically just kind of making notes in the margins of the docket about things that she's doing. And she's a lot of this stuff so that she can manage the case without being appealed because you can't appeal a paperless order. It's just kind of like a scheduling administrative thing. And, you know, just a little loophole there. As far as I can tell, that's what she's doing.

0:32:49 Thomas: Wow.

0:33:27 Thomas: As long as she doesn't write her stuff down, like what?

0:33:30 Matt: And I know. Jack Smith files a completely routine motion. And this is something that the government has every right to know. This is Something in any pretrial report that I would file in one of my criminal cases, I'm expected to produce pretty quickly. And that is, what are the defenses in in this case? What defenses do you intend to raise? Because that's going to matter about what discovery is produced and how the government approaches the case.

0:33:50 Matt: And we have to tell them. And one of the things that would be logical for Trump to use as a defense in this case would be advice of counsel, that my lawyers told me I could keep these nuclear secrets, I guess.

0:33:45 Thomas: Yeah. Makes sense.

0:34:00 Thomas: Mm -hmm.

0:34:01 Matt: It's an option. So Jack Smith moves to compel Trump to disclose if he plans to use an advice of counsel defense, not just because he wants to know, but because that's going to affect the discovery. And it also means that at that point, he'll get the right to get at discovery from Trump, which includes otherwise privileged communications. Because during that period of time, if you're saying my attorney has told me it was okay, we got to see those communications. So you're going to have to waive attorney -client privilege if you want to do that. Again, pretty routine to just have the government ask, hey, by the way, what's your defense here? What are we doing with discovery?

0:34:20 Thomas: Right. Okay. Prepared for a totally sane, totally cool response from Judge Cannon.

0:34:32 Matt: The court determines that such a request is not amenable to proper consideration at this juncture. I don't know what that means. Not amenable to proper consideration. She writes like this a lot, a lot of flowery overwriting, overlaw writing, to kind of hide the fact that she's not saying anything. Again, this is routine pretrial stuff. And she's saying, nope, we're not going to let you do it yet. And as far as I know, that still hasn't happened.

0:34:54 Thomas: Any legit argument that could be had? Like, oh, well, it's too early to know what you're charging me with, or what, the you know, like, is there any reason you wouldn't know this at this point? Mm.

0:35:04 Matt: Don't see why. I mean, again, I don't do this kind of SEPA litigation or the Classified Information Protection Act. This is very complicated litigation, obviously, but I don't understand why it would be necessary to go too much further in the case. Because again, Smith was intent at the beginning of this case of getting as much discovery over to the other side as quickly as possible. So they couldn't say that he was withholding anything. So there wouldn't be a lot of drawn out back and forth, very smart just to get it done. And that's one of the points he makes several times now in these motions is that we're doing our part. We're moving this along. Let's go. We start to get into the more recent history because, know, routine stuff that Jack Smith is asking now that they nailed down the questionnaire, the jury questionnaire. This is different from the jury instructions, which we'll talk about in a moment, but the just basic jury questionnaire that hasn't been rolled on yet. Regular But pretrial stuff that you'd expect.

0:35:22 Thomas: -Hmm.

0:35:44 Thomas: It's just like rate your experience as a juror one to five kind of thing, would you be a juror here again, all that stuff.

0:35:48 Matt: Then How's the chicken sandwich? Yeah, that

0:35:52 Thomas: You recommend amend this jury to a friend. Okay, gotcha.

0:35:52 Matt: Kind of stuff. Yeah. Of course, Trump files his motions to dismiss, I believe, on the 16th of January, 2024. one of these is based on immunity, which, of course, is being considered by the Supreme Court now. Of them is based on his defense, his ludicrous defense that the 11th Circuit has already addressed under the Presidential Records Act, saying that these are actually personal records for some reason. One of them saying that the entire statute is void for vagueness, essentially that as it it applies applies to him, the statute is vague, the Espionage Act. And I want to talk about that for a second, because think about the language that he's saying is vague. Including unauthorized possession.

0:36:28 Matt: Is there anything vague about unauthorized possession? You can't have this thing?

0:36:31 Thomas: Hmm. Well, I'm going to attempt to answer this as a bar exam taker. Well I would think you'd have to have it and you'd Have to not be allowed to have it. I that right? Do I get it?

0:36:38 Matt: That's Definitely worth a motion. Yeah. Relating to the national defense and entitled to receive are other phrases he thinks are too vague as applied to the facts, in violation of due process and the rule of lenity, etc., etc. So we'll get to that motion in a second. But first, we get, I would say stunning if it was another judge or another case, because individually, pretty much any one of these things would be pretty surprising, but this is just the cavalcade of things we come to expect now from Eileen Cannon. On February 6th, 2024, orders redacted discovery to be released, including the list of witnesses, which, as you can imagine, is a pretty big deal in a Donald Trump case. We're talking about people who are going to now be named and known to the public, very a active and involved public. So the special counsel immediately moves to keep this from happening. He makes very basic points about witness safety and intimidation.

0:37:07 Thomas: Wow.

0:37:21 Thomas: Yeah. At what point in the process would that normally happen?

0:37:24 Matt: Ways to protect these people all the way through if we have to.

0:37:26 Thomas: Really? Oh, okay. Well. I mean, we started this off with the whole open court thing. So, you

0:37:30 Matt: Yeah, no, of course. But point their name's going to come out, but right now we're not even close. Everybody knows we're not close to trial. This is incredible. And you'll see why so incredible when we get to Jack Smith's response, because she says, although substantiated witness safety and intimidation concerns can form a valid basis for overriding the strong presumption in favor of public access, the special counsel's sparse and undifferentiated response fails to provide the court with the necessary factual basis to justify sealing. She's saying, essentially, I don't see a problem here. I think it's fine.

Saying And it's pretty obvious, and it should be obvious to you, Judge, why these people are in danger if we release their names right now. He goes to do something that you have to really be on your game to do. This is a very, very specific thing to be be doing at this stage in the proceedings, especially.

Files a motion for reconsideration, which is, done a couple of times on big orders on things that I think are important, but not in the middle of a case like this, because usually judges don't get it this wrong in the case. A motion for a reconsideration is coming back to The Judge and saying, Judge, you don't understand the law, you have got this wrong, you actually completely

0:37:35 Thomas: Yeah. Oh.

0:38:31 Matt: Completely messed this up. And he makes a very compelling point in his motion about how wrong she got it. Thing that you do not want to see as a judge is, when he runs down his version of the law, and then he says, the cases cited in this court's order do not hold otherwise. So basically, you cited these cases incorrectly. That's really really bad. That is really bad, but he starts out by saying, in requiring unsealing, the court has applied the wrong legal standard. Literally, the actual basis for her order was completely wrong, that she said essentially that it has to be a compelling interest and that the closure has to be narrowly tailored to that compelling interest, but, he points out, the law really could not be more obvious that it just requires good cause, and he has good cause here, not a compelling interest in narrow tailing. She just, she's misapplied

0:38:50 Thomas: God. Yikes. And That Makes A big difference, like compelling Interest versus, like, yeah, good cause. That's uh, Pretty Different

0:39:16 Matt: The law. Yeah. You got a reason. Yeah, pretty you haven't heard on that motion yet, but asking her to reconsider herself because she misstated the law, cited these cases incorrectly and applied the wrong standard. I mean, that's just, yeah. Yeah, I mean at this point, well, you tell me what I'm going to be saying, which is I think that she should recuse herself or be forced to recuse herself because she's made so many mistakes in this case at this point. It's pretty extraordinary, but everything about this is extraordinary. Yeah, it can happen. At this too, he's so fed up that he files the defendant's motion for additional time to file certain motions. Literally, the defense is just asking for time to just throw a bunch more motions at the wall. And it's pretty angry, his response, appropriately angry, I think. He lets the court know that as of November 3rd, these people were saying they were essentially ready for trial, that they had their motions together. And now three months later, they come to the court seeking additional time to file pretrial motions. He explicitly says that the motion that they,

0:39:21 Thomas: Oof.

0:39:41 Thomas: That's A new One, yeah. Wait.

0:40:07 Matt: Well, implication, because they had this deadline and they were, the you time they seemed like they were ready, but now they're coming back and saying that they're totally unprepared and that they need this time for all these other motions that they want to file. And He's saying, you had plenty of time to follow these motions. You knew what this case was. This is nothing new. Has clearly really just delay. This is frivolous. He uses all these words.

0:40:07 Thomas: They Did say that, I'm surprised they said they were ready for trial. Why did they Say that? And I Bet he actually knows what they mean and uses them correctly too, the

0:40:28 Matt: No, closer to the present day. You mentioned Brian Butler, who is identified as Trump employee number five. And because he knows that there is this, you know, that it's very possible that the witness list is going to be released any day, he just comes forward. And he says, look, I'm probably going to be identified anyway. So here's my story. And He's one of the few people in here not represented by a Trump lawyer. So he slams on Trump, talks about all the things he ever saw. He was basically a valet for Donald Trump, which is appropriate given he's Brian Butler. Pretty pretty good.

0:40:38 Thomas: Yeah. Crazy. Yeah. Everyone Should watch that. He comes across really well. He Comes across. It's Not Like he's a saint, like he, I mean, he was like, I think he was a Trump fan in general. He seemed to be pretty right-wing guy, but he was just like somebody who still, still has some form of like general decency, and was like, yeah, once they, you know, wanted me to participate in crimes, I was like, yeah, maybe not, essentially, I mean, there's a lot more to it, but it's, he it's comes across well, and it's again, in any other era of ever, this one thing would already be like, well, this is insane, this man is obviously a criminal, Donald Trump, like this is crazy,

0:40:55 Matt: Yeah, it does.

0:41:13 Matt: Yeah, right, right. This was barely half a day's news when he came out with all this.

0:41:27 Thomas: Yeah,

0:41:27 Matt: Yeah. And some of the things he was saying about the national secrets and the things you was aware of that Trump was just throwing around, I hope that some MAGA people are actually hearing what he's saying, but I'm, they, they probably aren't. So now we're getting to the real meat of what I want to talk about today. I just wanted to give you some of that context. You understand what I'm saying, that Eileen Cannon is completely out of line and just lost her mind. I really mean it. I'm not just talking about the last couple of weeks. I's fun to just revisit and take us through the timeline. So now had filed a couple of motions to dismiss. One of them, as I said, it was based on this idea that as applied to him, the Espionage Act is vague. I will just briefly read the portion of the Espionage Act, and you can decide for yourself. Will redact down bones the bones here.

Having unauthorized possession of, access to, or control over any document, writing, codebook, etc., relating to the national defense, or information relating to national defense—which information the possessor has reason to believe could be used to the injury of the United States or the advantage of any foreign nation—willfully Willfully communicates, delivers, transmits, causes, et cetera, et cetera, to any person not entitled to receive it or, here's the important part, willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it. So does that sound vague?

0:41:46 Thomas: No,

0:42:36 Matt: Pretty direct. Have a thing, you know you're not supposed to have it, and you don't turn it over to the people who you're supposed to give it to. Knew at that point he was not the president. I think he knew that. I hope he knew it. I hope you knew that, although he was telling people he was still the president, so who knows? Any hold on to these things. That's it. That is the argument.

0:42:36 Thomas: It was very specific, that's too vague though, Matt, I don't know, what What is what what define held and things and Trump and words and earth, though? Can you do that?

0:42:58 Matt: Your is in here too, Officer of the United States. We could talk about that for three years. Let's do that. Was kind of odd, the reporting on this one, because it made it sound like it was some kind of win for Jack Smith. I don't really see it that way, because obviously she had to deny this motion and dismiss, because it's crazy. She denied it in a very strange way. Decides that this question is premature, which is a little concerning.

0:43:20 Matt: A little early to be talking about this sort of thing, because we've got these disputed factual issues. And

0:43:01 Thomas: Oh, yeah. Oh, boy. Yeah. Because we haven't completely rewritten the English language yet. Is that why? Once we do that, then these questions may make sense.

0:43:29 Matt: Jack Smith, by the way, filed a 29-page response to this motion, but I can read you the entire motion right here. Trump is charged with the unauthorized possession and willful retention of national defense information. The statute's prohibitions are clear, period. That's pretty much what the brief comes down to and what any reasonable person would understand is going on here. She decides that this question is premature, even though it's, I think, pretty obvious that this is an appropriate charge for holding on to classified documents. The court elects to deny the motion without prejudice, to be raised as appropriate, you'll you'll never guess when, in connection with jury instruction briefing or other appropriate motions. Jury instructions. She wants this to come out to the jury to decide.

0:43:45 Thomas: Yeah.

0:44:11 Thomas: To is that what she's saying? Or is she saying, like, that's when they can file it again?

0:44:16 Matt: But that's what she's saying, is that it'd be appropriate at the point at which we're facing a jury that we get to put this in a jury instruction to have them decide whether or Not this thing is too. It's a question that she needs to decide before the trial. This is not a jury inspection kind of thing. Like, this is a pretrial motion. It's just, again, this is concerning because if you get the wrong jury instructions in this case, it's going to completely destroy the case, right? I mean, even if somebody really wants to convict him, if they get instructions saying that, you is vague or that, whatever, anything that would undermine this case. And as we're going to see, I'm very concerned about where this is going with this next order.

0:44:23 Thomas: Oh, Yeah.

0:44:48 Thomas: That's still where that sits, right? That hasn't. Wow, So that is ominous and very scary. But that is where that is. She is like, it I is am not rejecting it outright. It is sort of like putting it away for later.

0:44:59 Matt: Prejudice. So go ahead and bring it back to me if you want to, when you think the time is right. That was March 14th. Now, that was immediately after the hearing that they had on the motion to dismiss. It was pretty much within hours the next day. She wasn't taking this too seriously, but she's still leaving the door open for whatever reason. And then on March 18th, Monday, she comes out with one of the weirdest things I've ever seen from a criminal trial. It might be the weirdest thing I've ever seen from a criminal trial, actually. Page order.

It's a fun thought experiment. She decides that it's time, you know, even though we have a jury trial set for May 20th, but let's do some philosophizing. Let's just do some brainstorming about all this. Might be fun. Specifically waives the 20-page limit for responses. She's like, give me all you got. I want a long answer to these questions, to these absurd questions, these ridiculous questions. So let me just set this up for you, Thomas.

A lot of these things, when you're talking to lawyers, they're like, oh, wow, that's incredible, right? But you try to explain this to a regular person and they're just like, okay. Why?

0:45:01 Thomas: Okay.

0:45:52 Matt: What's the problem?

0:45:52 Thomas: That's What I'm struggling with right now. Yeah.

0:45:54 Matt: Right. Right. That's what we're here for. That is the purpose of this show. She just wants to begin with jury instructions when everybody knows there's not going to be a trial on May 20th. We're way ahead of jury instructions. We are not there yet. Jury Jury instructions, of course, are very important in a trial because it is the judge instructing the jury on the law that applies to the case.

0:45:56 Thomas: Yeah.

0:46:09 Thomas: What?

0:46:10 Matt: And so the jury is being told that if you find this applies to these facts, you have to make this decision, basically. Wants two sets of proposed jury instructions from each side. And these are, again, like I said, fun thought experiment, just something to think about. She wants to think the phrase "unauthorized possession," which I think you and I have agreed is not especially vague. And in the context of unauthorized possession, she wants jury instructions on two different scenarios. First scenario is that, well, what if the jury just gets to see everything, including all the classified documents, which right now there's a whole bunch of, I didn't even talk about the SIPA stuff because frankly, it's way too complicated. That could be another four hours. But there's a whole lot of litigation going on around which documents are going to come in and who's going to see them and who has the right to review them, as you'd expect with classified documents.

0:46:19 Thomas: Okay. Yeah.

0:46:53 Thomas: Because That's hard when you have a jury needing to decide, like, someone's guilt. It kind of, how does that work with them seeing it, you know? Yeah, okay.

0:46:59 Matt: Right. I mean, you could have a witness testify that they've reviewed these and they know that they're classified, that they meet the standard, whatever. But you Can't have all these jurors getting top secret clearance necessarily. But CIPA anticipates all of this. That's what it's designed for. So she's saying essentially that these are your alternatives, that both, these could both be true, but we can get jury instructions where the jury says that they're going to be allowed to look at everything and make factual findings about whether or not these documents, including all the classified documents that you've gotten to review, are personal or presidential using the Presidential Records Act.

So that's pretty weird, including things that have the word classified on them. Are not your, you testing. This is your actual classified documents that you're not supposed to have anymore. And the Presidential Records Act, of course. Yeah, right. I mean, we'll talk about the Presidential Records Act in a minute. But the second scenario, the second scenario is the one that he's laying out in his motion to dismiss that she hasn't decided on yet. He filed two of them at the same time. One of them she's disposed of without prejudice. Us. The other one is as to whether or not he can declassify things with his mind,

0:47:03 Thomas: Okay. Sure. Huh.

0:47:32 Thomas: Personal.

0:47:43 Thomas: Huh. Okay. Yeah.

0:48:02 Matt: Which, again, the 11th Circuit in each one of its reversals has addressed this. It hasn't said specifically that they're ruling on it. They just said this doesn't seem like much. And there is no reason at all for her to take this argument seriously. None. The Presidential Records Act was passed after Nixon decided to hold on some things he wasn't supposed to hold onto. And the whole idea is that there's personal records and there's presidential records, and it's pretty easy to know the difference, and you don't get to hold on to presidential records. That's pretty much it. And again, as the 11th Circuit has already properly identified, this whole thing around the PRA is essentially red herring because he's charged under the Espionage Act, which involves holding on to classified materials.

0:48:39 Thomas: Yeah.

0:48:40 Matt: So by definition, they're classified, they'RE not personal. Again it's so hard for me to explain this because it's SO far outside the realm of of reality, of like our shared understanding. You

0:48:50 Thomas: At a certain, important, it's like you're the wrong job to, like, explain what this is, because it's not the law, Matt. You almost need, like, maybe a philosopher or something, or, uh, you know, like an abstract artist, or

0:48:56 Matt: Right. It's just, right. Think she needs a translator at this point. I mean, this is not Even, I'm not recognizing as legal English, some of this. And I mean it's the language on this is so weird and flowery, so I'm totally setting this up. She's saying the parties must engage with the following competing repeating scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law. She's just saying, go ahead and assume that the President can declassify things with his mind and let's see what your jury instructions look like then. I mean, let's just, let's assume that murder is legal. And what do you think about this murder case now, huh?

0:49:04 Thomas: So Yeah. What? Okay. So there's, what's the point of that? I see what you're saying, I see where we uh, okay. But

0:49:32 Matt: Right? Yeah. It's just—you I'm going to go aheadand say that it's true that he can do this, so show me these jury instructions.

0:49:40 Thomas: She's also not not deciding that, though. She's saying like, well, pretend I decided that. What is the point of that?

0:49:46 Matt: Exactly. There's no decision on the motion to dismiss. This is all just kind of a weird kind of preview of what she might be thinking or not be thinking. And she didn't seem to be taking it that seriously at the hearing, from the reporting at least. So why is she doing this? Nobody seems to know. And it's essentially saying to Jack Smith that we could go ahead and just give the jury everything. Thing. That's an option. Or we could just tell the jury that the president can declassify things with his mind. How would you like to pick one of those? Or both. We'll just do both. Let's do both, that'll be fun.

0:49:47 Thomas: OK, this is all just crazy, right? I mean, there's no what should be happening right now. What? Pretend there was an actual judge, Matt, in this case, which there isn't as would that person be doing instead of whatever this nonsense is? Because it's so weird, I'm having a hard time even understanding that.

0:50:15 Matt: Yeah I This person would have already disposed of all of these ridiculous sip emotions, all of those emotions to dismiss, all these things that could have been disposed in a couple of days because none of them really have any merit. I mean, the term personal records, just for context, under the Presidential Records Act, is all documentary materials of a purely private or non-public character which do not relate to or have an effect upon the carrying out of the duties of the president.

0:50:52 Thomas: So, like, literally, if you accidentally set, like a your kid's drawing in with the presidential stuff, then you'd be like, well, that's clearly personal.

0:50:59 Matt: Or your medical records or your taxes or whatever, which again, the government can give those back because that's not what they're looking for. You might remember, you might've heard Trump talking about the sock drawer thing with Bill Clinton. Have you heard about this?

0:51:10 Thomas: It sounds familiar. Remind me, is it, uh, where a bunch of evidence of Bill Clinton's affairs were? Or that's

0:51:15 Matt: That would have been pretty personal. It doesn't have anything to do with Socks the Cat. It was a 2010 Judicial Watch, of course, our favorites. Have we ever talked about Judicial Watch? That's a whole other thing. Extremely swole representatives of Judicial Watch. They asked the court in 2010 to declare that these tapes that Bill Clinton had recorded in anticipation of a book that he was working on with an author were presidential records. Court judge very reasonably found that they were personal recordings, that they were not actually presidential records. They were trying to say that this should have been the property of the United States, basically.

0:51:17 Thomas: Fair, yeah. Oh, Yeah, Well, Right.

0:51:43 Matt: This is the kind of thing that Judicial Watch, you Know, puts its heart and money into. To.

0:51:46 Thomas: And Therefore everything Trump did is fine because of whatever the hell you're talking about there, yeah.

0:51:51 Matt: It's again, just the typical Trump thing where he just keeps saying socks and sock drawer and socks, you know, and just like over and over again.

0:51:54 Thomas: Yeah, Until You Think Like Something's

0:51:56 Matt: And that's right. Got to be something there.

0:51:56 Thomas: Wrong with socks or Whatever Yeah, Crazy.

0:51:58 Matt: So, yeah, it's juste chaos. All of it is chaos. Are went looking for all kinds of takes to see what's going on. I couldn't find anybody saying this made any sense. Anybody. Anybody.

0:52:06 Thomas: Wow, And it's just to delay, right? Because

0:52:09 Matt: Also trying not to get appealed. So kind of putting this jury instruction thing out there is a great way to not get appealled, because it's so weird. How do you even appeal that? I'm really looking forward to Jack Smith's response, because it's going to be a lot of fun, I'm sure, to read these proposed jury instructions.

0:52:16 Thomas: Oh, So We're still waiting On That one. Yeah, that will be fun because this is getting crazy. Interesting.

0:52:24 Matt: I Think at this point, his response would just be a motion to recuse, that he should just tell tell her you're out. Like, this is enough. You've been overruled twice. You're just coming out with this weird stuff. And then at least when she denies that, there's something that can be reviewed and the 11th Circuit could take a look at everything she's been doing, so Far and decide If she's the person for this case, as far as I can tell, that's about what you can do at this point to get her off, because usually you don't need to work too hard to actually completely disqualify a trial judge this early and everything. We're not even close to to trial, famously.

0:52:37 Thomas: Okay. Yeah,

0:52:52 Matt: So yeah, they

0:52:50 Thomas: Huh, that Was going to be My question, like, what, who can actually make her do anything? So could the 11th Circuit make her her do something, like they could make her stop, they, they could make her recuse? Is that actually within their power?

0:53:02 Matt: Could. They could decide that she should have recused and kick her off and replace her. And that's what we can all hope for at this point, so we can actually move this thing forward.

0:53:08 Thomas: Yeah, That's That's Nuts. Now What would happen? Would they have to redo a bunch of stuff, or how does that go when you, do you even know, does this ever happen? All right, guys, I gotta assume sometimes judges just like up and die or something, you know? Okay.

0:53:10 Matt: Yeah.

0:53:21 Matt: I think at that point, uh, if she is recused, then she's just replaced by another one of the local judges and we just move on and it from there, I, that's all we can do And

0:53:27 Thomas: Would There be an opportunity to kind of, Jack Smith, like, have, hey, can we motion to reconsider because you're an actual judge? Is that a thing that exists, Matt? I don't know. It's

0:53:34 Matt: She This point, she hasn't anything that would cause any lasting damage Yet, She's Just slowing It down, Just making everything harder, um, but it's a real thing, though. This is the real reason I wanted to talk about this, is if she does get to the point where she's giving jury instructions that say you can find, jury, that the president is capable as a former president of declassifying things with his mind, or deciding that confidential records or classified records even are personal records, if she gives that instruction, which is obviously completely against the law and totally nuts, um, jury would have to acquit, right, at that point, if that's what they're being told is the law. Concerning.

0:53:39 Thomas: No, that's true. Yeah. Okay.

0:54:09 Thomas: The state allowed to appeal or is that a double jeopardy thing?

0:54:12 Matt: Would be double jeopardy. Yep.

0:54:14 Thomas: So if she ruins the trial in that way, it is unfixable.

0:54:17 Matt: Yep, it. Same if they move to dismiss, you know, or direct a verdict in the middle of the case, you know, in any number of different ways that this could go. If they get kind of on hold of the idea that she thinks this could be the law and they run with it, then she absolutely could direct this out and that could be it.

0:54:17 Thomas: Wow. Holy Moly, this is crazy.

0:54:33 Matt: Yeah, it's about it. It really is. And, You know, I think sometimes these things get overstated about how judges or prosecutors or whatever are in for Trump, but you just can't overstate this enough.

0:54:33 Thomas: No, Yeah, this is, this is crazy. Wow. Okay, well, that's Judge Cannon, everybody. The Aristocrats. Oh.

0:54:51 Matt: You have a minute, I wanted to pick up on just SB4 litigation that we were talking about last week, because there have been some interesting developments, and that was requested on Patreon at patreon.com/law. That

0:55:01 Thomas: I did the post again, the Wednesday post for rapid response for Friday, uh, stuff, and it was just as popular this time around. Keep it up, patrons, patreon.com/law. A lot of fun. Yeah, that did go into effect, right? You were talking about Alito just kind of doing these temporary thingies, and it, it just, uh, expired, right?

0:55:15 Matt: Well, it turns out this is something that Alito does pretty often, these very short-term things while the court's trying to figure things out. Now, again, it would take another 30 or 40 minutes to really explain exactly what just happened, but I have a great tweet here from Amritha Jindal, who's the executive director of the Lone Star Defender's Office. This is a very good summary of SB4, first it was blocked, then they paused the block, then they paused the pause of the block, then they unpaused their pause of the block, then they unpaused their original pause of the block. So now it's blocked. You're welcome. That's about where it's at.

0:55:44 Matt: Yeah, that makes sense, right? Can explain it very very, basically is and this is kind of a fun quirk of, well, okay, not fun. Nothing about this is fun, but there is a quirk here that Alito very relatably came in five minutes late. I Can Completely Understand. I know how that goes. Somewhere around 5:05, he actually continued the stay and it looked like he was letting it expire. So for like five minutes, everybody's like, SB4 is in effect. It's time to go. Texas is doing this. Then he immediately puts

0:55:15 Thomas: Oh, Okay. So

0:56:06 Matt: The stay in about five minutes later. Yeah. But then And then the next day after that, the Supreme Court came back 6-3 with the division that you would expect of the Supreme Court decided that it was going to allow this stay to expire. Now this basically, this was an administrative stay on the part of the fifth circuit. And they were pretending that they don't want to touch administrative stays that this isn't. And again, I don't know, it's probably a whole other episode to talk about stays Because this is math. It's a lot of math. But the Fifth has been playing games with administrative stays in a lot of these unpopular laws, including the SB -8 Texas bounty hunter abortion law that we've talked

0:56:07 Thomas: We Did Oh, Okay. Wow. Right.

0:56:39 Thomas: Right.

0:56:39 Matt: About before.

0:56:39 Thomas: Right, sorry.

0:56:40 Matt: In that case, they had no trouble extending the stay that allowed the law to go into effect. But in this case, the end of the stay allowed the law to go into effect, you know, again, they were pretending like this is something new, different, different. Amy Coney Barrett with Brett Kavanaugh wrote a very technical opinion in which she acknowledged that, or pretended that, they weren't really looking at the merits. They're just saying, we don't like this idea of extending administrative stays.

We're going to send it back to the Fifth and let them decide what to do. Elena Kagan filed a brief separate dissent there. It was pretty straightforward, saying that immigration is a federal matter, it's not a state matter, I don't think this is appropriate, that this stay should have stayed in effect.

Sotomayor wrote a very extensive 10-page dissent, which really put her feelings out there about how she feels about this law, how it's clearly unconstitutional, as we've talked about last week under Arizona v. U.S. in 2012. There's just no question that the state of Texas is allowed to do any of this enforcement.

Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos when the only court to consider the law concluded that it is likely unconstitutional. Law implicates serious issues that are subject to ongoing political debate, and Texas's novel scheme requires careful and reasoned consideration to determine which provisions may be unconstitutional.

The court today expresses no view on whether Texas's law is constitutional, and instead defers to a lower court's management of its docket, the Court of Appeals abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo. This court stands idle. Because I cannot, I dissent. And that's the middle of it, stuff. So this is pretty much what I was saying, that they can't do this. It's clearly unconstitutional, and there's no reason to pretend that this stay should be in effect.

And this is kind of a fun detail, it went straight back to the Fifth Circuit, which ordered arguments the next day at 10 a.m. So it's pretty fun that you get a few hours to prepare, basically overnight. Those arguments were held, and we don't know what's going to happen yet, and it was hard to tell. And we will see, we'll see as this goes on.

0:58:24 Thomas: Is the law in effect? I don't know what's happening, that was too many stays of not stays of stays. What, I also, uh, looking at the, uh, clock here, we, I don't have time to go through what that meant. You, in some way, tacks us? What's the next thing to happen now? Right, our state, sheriff's deporting people or whatever the heck that was. Are they allowed to do that right now, as we speak?

0:58:43 Matt: They're not. SB4 is not in effect. It was in effect for about nine hours and, I don't know, five minutes or something. Can get through the procedural history another time. It's extremely complex as these things often are. But I just wanted to mention kind of the shenanigans that are going on around all of this, the chicanery. It's disappointing, obviously, but what do we expect?

0:58:48 Thomas: Okay.

0:58:59 Thomas: We had time, we will get to it another time. Time. For now, we're waiting for the Fifth Circuit to make a decision, right? Because it went back down and they're kind of deciding on it.

0:59:07 Matt: And then someday we'll actually get a decision on the merits in which I hope the Supreme Court decides that Arizona v. U.S. controls.

0:59:12 Thomas: Oh, When it went back to the Fifth Circuit, they were still just doing the stay thing? We're still nowhere near merits. Ah, the law sucks. I'm sorry. The law just sucks. That's my conclusion. We'll get into it more another time. Thank you for that definitive breakdown of why Eileen Cannon sucks, sucks. That is crazy. Uh, I'm glad we have a plan, which is Jack Smith, please file that motion. Um, you need help writing it. Don't ask me. You actually have a good team. I'm not, I'm not even gonna make the joke. You're doing a great job, Eileen Cannon, uh, the one who needs all the help in the world to figure out what the law even means. No, kidding, right? Well, thanks so much for listening, everyone. We really appreciate you. We can't wait to see you Monday for Monday's deep dive episode. And thanks again, Matt.

0:59:18 Matt: Yeah, no, we're There have to be other places she could get a job. Right. See you next time, okay.

0:59:55 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:00:12 Matt: I just want to make sure I say this right. Don't want to be absolutely sure because this stuff with the stays, I mean, it did, but hold on. It didn't. Excuse me. Sorry. I meant to say, I'm sorry. I'm very tired, Thomas. It has been a long week and I have had very little sleep. So yes.

1:00:27 Thomas: So, I guess meow is the answer. Oh.