This Judge Could Change Everything for Trump

June 16, 2023 Off By Todd Zwillich

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What a second arraignment it was. I’ve now had indictment fever more times than I’ve had COVID.

As soon as US District Judge Aileen Cannon was assigned Case No. 23-80202-cr in the Southern District of Florida, the media began analyzing what she might mean for the case. Cannon, appointed in the last days of the Trump Administration, is inexperienced. She’s presided over just four criminal trials for a grand total of 14 hours. She has no practical experience with the Espionage Act, which can be nuanced and procedurally complex.

One colleague called that “a rookie reffing the Super Bowl,” and that’s just right. But Cannon’s experience isn’t the most important thing occupying legal analysts, and definitely prosecutors. It’s the understanding that she might be corrupt.

Cannon’s two key rulings after the August, 2022 search on Mar-a-Lago were criticized across the ideological spectrum as inept and poorly reasoned. She was reversed in both cases, brutally, by the 11th Circuit. This week, analysis of her potential influence on the case seemed to stipulate that Cannon may well want to throw it for Trump. How much could she do to succeed?

It’s both shocking and entirely understandable why even the most balanced look at Trump’s trial has to account for the possibility that the presiding judge is in the tank for the defendant.

It made me want to go through the exercise of climbing into Cannon’s head to look at her choices. I can’t know what she’s thinking, but the incentives that could drive a fair trial, or a dangerously corrupt one, are pretty clear.

Trump plucked Cannon from the Federalist Society pipeline of rightwing legal ideologues. Her two rulings of note did her enormous reputational damage. Forget about the media. In legal circles, where it counts, Cannon was instantly perceived as ham-handed and facile at best, and grossly biased at worst. Trump’s case could provide the ideal opportunity to mitigate the damage.

Judge Cannon is young, just 42. She’s got maybe 38 more years on the federal bench if she wants it. Trump, at 77, won’t be around for but a fraction of that time. Cannon might commit to being extra fair in this blockbuster trial, thus cementing her reputation as a sober and worthy jurist for a long career that will surely outlast Trump.

But another colleague pointed out that Cannon may live in a world where these quaint notions of judicial reputation don’t apply. In this world, a judicially corrupt one, saving Trump is its own good. But more important, so is any action that counters the imagined left-wing capture of the justice system. It’s a world where weaponizing DOJ for ideological and personal vendettas is a campaign promise. Slap-downs by higher courts are evidence of liberal corruption above you, not bad rulings in front of you. Scathing reversals and judicial faceplants are affirmations, not scars.

It’s easy to see how that worldview skews the incentives. If Cannon contemplates a successful future as one where she’s a hero to the right, and not with broader judicial culture, it’s trouble. Meanwhile, congressional Republicans are making it clear that corruption is her best choice.

Cannon’s future advancement in the federal judiciary goes through not only a GOP president, but also the US Senate. In addition to their attempts to interfere in Trump’s criminal trial, congressional Republicans are signaling to Cannon that elevation to a Circuit Court of Appeals, or even the Supreme Court, rests on giving Trump the outcome he wants.

Trump appointed her. That fact should be enough for Cannon to recuse herself from the case.

There’s only one person in the world who gave Cannon her lifetime job, and could also promote her in the next couple years if he’s re-elected. And he’s the defendant in the case. There’s an entire political movement demanding he be placed above the law. She could easily and unequivocally show that the politically fraught prosecution of a former president—and the promise to corrupt the justice system—is too important for the appearance of conflict of interest.

Recusal would make me and everyone else in the media, the judiciary, and the public look like idiots for even asking if Judge Cannon is anything but a young, fair-minded judge doing her best.

VICE’s Greg Walters was at the arraignment, just a few feet from the defendants. Greg and I stopped by VICE’s Twitch stream yesterday to talk indictments, Mar-a-Lago, and the charges (maybe) to come with superhosts Samir Ferdowsi and Dexter Thomas Jr. Check it out!

Act your age, not your indictment count

Speaking of repeat exposure to indictment fever, we’re expecting Trump and possible co-conspirators to rack up more charges by August. New York AG Letitia James warned this week that state prosecutors in Manhattan and (possibly) Fulton County, Ga., might have to get in line behind the feds.

It’s all about competing jurisdictions. This particular defendant is already charged in state and federal court, with more conflict on the horizon. Some of the cases (like, say, the plot to steal Georgia’s election) are likely to share witnesses with a federal case (like the Jan. 6 insurrection and coup attempt. In the end, Special Counsel Jack Smith is likely to, um, trump state prosecutors like Alvin Bragg in Manhattan and Fani Willis in Georgia.

Willis said this week her case won’t be derailed by Trump’s federal indictments. Her statement had no details on what would happen if her case and a federal Jan. 6 case clashed and shared witnesses or defendants. “🎶Summer crime…🎶”

Trump went straight from his arraignment to a birthday fundraiser on Tuesday, where he raised millions. If he makes it to the general election as the GOP nominee, Trump’s total number of indictments may well be higher than Joe Biden’s age! Something to contemplate.

But there’s a huge amount of information to grasp now that we’re into the unprecedented area of federal indictments. Here’s a little guide to some of the week’s most useful, interesting, and digestible information about Trump’s 37-count indictment for mishandling docs under the Espionage Act, obstruction, and false statements.

1) Trump’s claim the Presidential Records Act gave him unfettered authority to take and possess the documents: It’s bullshit. The PRA makes clear a president’s personal records consist of diaries, journals, and the like, and definitely not the nuclear secrets or military contingency planning of the United States. This feels like one of the defenses Trump will use for fundraising and propaganda that his lawyers won’t ever try in court, where standards of ethics and truth still apply. For now.

2) How much time is Trump facing? “Up to 400 years”…sure, in a world without federal sentencing guidelines, judicial restraint, or the Sixth Amendment. There’s actually a detailed point system for calculating recommended sentences, taking into account how secret the documents are (Top Secret, in this case), whether the defendant held a position of public trust (yup) and whether they were a ringleader (mos def.) A sentence of 17 ½ to 22 years wouldn’t surprise the experts. That could go up another 7 years or more if Trump is convicted of obstruction. But have some fun, do your own math!

3) What about classified information in open court? There’s a natural tension when it comes to classified documents cases. The government wants to protect its secrets, and defendants have a right to see and challenge the evidence against them. That can lead to a phenomenon called “graymail.” It’s when a defendant accused of abusing national security secrets threatens to expose those secrets in court. Sometimes that’s an actual threat, and sometimes it’s just a function of discovery and mounting a defense.

But there’s a law that governs these special cases called the Classified Information Procedures Act (CIPA), and you’re going to be hearing a lot more about it. Take this, if you like, as your first CIPA tea.

4) Could there be more charges? One of the more shocking scenes in Trump and Nauta’s indictment is the July, 2021 meetup at Trump’s Bedminster club in New Jersey. That’s where prosecutors have Trump on tape appearing to show two people working on Mark Meadows’ autobiography classified information about planning for a potential attack on Iran (page 15).

For now prosecutors are using the episode to prove that Trump knew he hadn’t declassified the documents he took, and that they were still secret. But it raises the question of whether Jack Smith could charge Trump with disclosing secrets or illegally hiding documents in New Jersey. It’s possible! After all, for all the things Trump’s charged with, disseminating classified information isn’t one of them.

One thing weighing against the charge is that Trump’s lawyers apparently haven’t found the Iran document in question. Without the doc it could be hard to charge. Then again, given all the justifiable worries about Judge Cannon’s biases, New Jersey could provide Smith a good backup if she gums up the Southern District of Florida.

Elector set

The Georgia Republican Party has elected its new slate of leaders, and from nearly top to bottom, they’re all conspiracy theorists and election deniers! They include new party vice-chair Brian Pritchard, a talk radio host who’s also accused of illegally voting nine times after he pleaded guilty to two forgery counts and one count of theft in 1996. The best people!

Trump, Kari Lake, and Marjorie Taylor Greene all spoke at the party’s convention. What’s most ~~sad~~ interesting about this new group is that they’re replacing several state party members who are now targets of Fani Willis’s Fulton County investigation. Several state party officials, including former chair David Shafer, signed on as fake electors in Trump’s coup attempt. At least eight have immunity deals and are now cooperating with prosecutors.

Looking for Mr. Disbar

Trump lawyer John Eastman isn’t just flirting with potential charges for helping conceive and organize Donald Trump’s attempted coup. He’s also facing potential disbarment in California. Eastman faces trial at the end of the month, and the witness list is filled with B-list stars of the insurrection, from Peter Navarro to former Cyber Ninjas CEO Doug Logan.

“No. The definition of a cult is a group of people who are excessively supporting one another and a cause, all about conformity and compliance, and intolerance of anyone who doesn’t agree with what their mission is.” - Former Alaska Gov. Sarah Palin, asked if people supporting Trump after his 37-count indictment resemble cult members.

Biggs talk — Trump supporters—from Internet trolls to members of Congress—issued plenty of violent threats when Trump was indicted last week. Trumpist Rep. Andy Biggs tried to rouse militia-minded MAGAs with combat cheerleading. So why didn’t it materialize into trouble at the arraignment in Miami? There are plenty of logistical reasons (for example, never try to organize a riot over the weekend, when people are busy at Home Depot). But maybe the prosecution of more than 1,000 Jan. 6 rioters is deterring violence.

All threats are bad and corrosive to democracy, but the truth is not all of them are equally dangerous IRL. Here’s a handy field guide to violent rhetoric and its migration into action.

Smart as a Whipple — What would you do with an election conspiracist who says 9/11 was faked, Donald Trump won the 2020 race, and QAnon has a plan to save the world? Why, put him in charge of running your county’s elections, of course! Welcome to Warren County, Iowa, where the board of supervisors just installed David Whipple as interim County Auditor, putting him in charge of running the 2024 election.

VICE’s David Gilbert has the story. Whipple’s status as an online MAGA conspiracy vector is no secret. He’s basically the town crier for QAnon, and even supervisors acknowledged that putting him in charge of elections was weird.

Pillow texts — Last September, infomercial tycoon and election barker Mike Lindell was stopped at the Hardee’s in Mankato, Minn. when the feds descended on the drive-thru and took his phone, presumably as part of the ongoing investigation into Jan. 6 and the coup attempt. Lindell wants his phone back, and has been arguing for it in court for months. His lawyers went in front of a federal appeals court this week, and might have found some sympathetic conservative judges.