Judges Merchan, McAfee and Cannon remind us that holding criminal defendant Trump accountable—and before the 2024 election—depends on who's wearing the robes
These cases also illustrate that our legal system is not prepared for a defendant such as TFG. If convicted, the courts have to sentence TFG so as not to waste the time of those putting themselves in harms way. Smith must hit Cannon as Tribe & Katyal suggested to allow an appeal with decision and/or her removal by 11th Circuit. Fingers crossed on that.
Steven, I am glad you didn’t continue to pursue law as a profession. For us, you are where you need to be. Appreciate your clear and knowledgeable writings. Thank you!
I wonder what compels Judge Cannon to execute her job in this manner? Is she beholden to the law? Or Trump? Or simply politics? It seems her behavior as described today borders on favoring Trump. Her three page dictum doesn’t clearly state anything other than a challenge to the Special Prosecutor to appeal her earlier instructions so as to possibly neutralize her seeming intent to derail this case. Like Steven I’m no lawyer but simply want a jury to render a verdict based on the evidence presented. This judge should not stand in the way.
I’ve wondered who advised her on this diabolical path to make no decisions so that there could not be an appeal. A rather passive aggressive way to administer the law. It is my opinion, relying on nothing except her rather thin criminal trial experience, her history of missteps in other cases and her actions in this one — an outside group / attorney is whispering in her ear to keep her from getting a 3rd strike from the 11th circuit.
Aileen Cannon should have taken your approach to law school. Despite our best efforts, 50% of lawyers graduate in the bottom half of their class and all too many of them become judges. A lot of Trump’s appointments were deemed unqualified by the ABA.
When discussing the difference between education and being bright, I often refer to the fact that in a career of dealing with small contractors when their bond was in claim, I way more often found the contractors themselves to be way brighter than the attorneys making the claim.
I will say that the rule of "zealous advocacy for the client" means that lawyers are often required to make bad arguments. But those arguments have to have SOME basis in the law. trump's lawyers go far beyond that in nonsensicalness.
Any lawyer advanced to a judgeship by Rubio or Scott would be to me, suspect. Same goes for trump knowing "the best people" & appointing Cannon. I am also leery of a FL jury.
Wikipedia has a good summary of her law ,cases, experience. Am counting on Smith to have the upper hand.
I am not a lawyer but, like so many, I have become so interested in the law since DJT came into power.
Watching Judge Cannon, and knowing that she is a new judge and seemed not quite professionally adept at the beginning, I am wondering now, as she appears to skillfully delay in any possible way the trial, I wonder if she is not tutored by some sly and much more adept lawyer or judge, or who knows even higher. It feels very strange.
Holy Cow! I just posted a similar comment before seeing yours! This is the woman who forgot to swear in a jury in a criminal trial and also violated the defendants rights. So many issues the prosecutor AND defense reached a plea arrangement in the midst of the chaos to avoid a mistrial.
Am I wrong to believe the intent of our founders was that our laws would be based on the Constitution, and interpreted by the Judicial branch of the government? I as well didn't attend law school, but when people who have been "certified by the bar" to interpret and apply our laws are flawed, then so too are our laws. How do we teach character?
I’m outraged by Judge Cannon’s obvious bias toward Trump. As someone who’s had security clearances, the thought of his getting away with the theft, hoarding and alleged selling of highly classified documents is horrifying! I’m no historian, but what I’ve read recently in various blogs and postings such as yours and Greg Olear’s tell me that there have been other periods in our history of similar corruption. This gives me some hope, in that we have weathered the storms before and our system of government has survived through many challenges before. I predict that we’ll get through this one as well and justice will ultimately prevail.
Oh my god, Steven, I got out by the skin of my teeth. Dean of Loyola Law School dumped me after the interview. I digress too. I have been reading too much that could have waited til morning coffee. It is 4:00 in th AM and I have to get at least a few hours sleep. Catch you on the flip sde.
There is a reason - actually there are many - that Roy Cohn is despised. The tricks and tactics employed by the faux Don are from his playbook. But the system allows it, if you have chutzpah, stomach and the cash.
Steven, thank you for juxtaposing the capabilities of the three judges involved in Trump’s legal cases. You’ve made it pretty clear that Judges Merchan and McAfee have the knowledge and experience to deal with 2 difficult cases, whereas Eileen Cannon is clearly out of her depth and appears to be interfering in the jury’s role by introducing tangential comments on the Presidential Records Act. The Act itself is quite clear and Cannon should become more knowledgeable about the requirements of this case or recuse herself.
Well said Steven, on another Substack speaking to the subject of Cannon, a member of that community remarked that perhaps she is getting her rulings from the Federalist Society..Which, if you think about it is a reasonable argument to make..
The difference between the two statutes, PRA & The Espionage Act cannot be more legally glaring..Particularly in that one is criminal and the other civil..A critical thinking non lawyer person’s simple reading of each and the indictment would conclude that the PRA is immaterial to the case.. Making any reliance on it incongruous with the law..I refuse to believe that Cannon does not understand this..Using the calculus that if I do, she must..
Considering the legal communities reaction to this absurd hypothetical jury instruction order, it is simply bullshit..And a willful disregard for the law..
She is incompetent and out of her depth, on top of being biased..Considering this history and the fact even before the indictment was brought she was smacked down by the 11th circuit for interfering with the search warrant..I'm looking for the writ of mandamus..
I want to update this comment.. recently I saw something new mentioned in an installment of Legal AF..For those not familiar it’s a twice a week video/podcast session with three current legal practitioners..One is a USC Law Professor, another is a former Manhattan DA, and another is a national practitioner, particularly in NY & Florida..
In the Saturday evening episode the case law of U.S. v. Torkington is suggested as a way to have Cannon removed from this case..In this Per Curium decision from 1989, the 11th Circuit in part of its ruling had “Reassignment on Remand” In addition to other issues related to the lower courts ruling..
It is worth taking a look at, as it seems to describe what Cannon is doing in the Documents case..
I would advise anyone who believes Aileen Cannon is incompetent to read her Wikipedia page. Unless everything is completely made up, she graduated Duke University with a BA and went to law school at the University of Michigan where she graduated suma cum laude and was inducted into the honor society for law students. She joined the Federalist Society as a second year law student, was active in moot court and was an articles editor for UM Journal of Law Reform. She clerked for a judge on the US Court of Appeals for the Eighth Circuit in Iowa. She was an associate in the DC firm Gibson Dunn. From 2013-2020 she was an AUSA for the southern district of Florida in the major crimes division. *Thank you Wikipedia*
There’s more but you get my drift. She is a hired gun and if I were a conspiracy theorist, I could make the case that the fix was in for her selection. She has thrown every possible roadblock at Jack Smith to derail this, the “easiest” case to make against the former president(🤮). She is forcing Mr. Smith to take her to the Court of Appeals again. If he should do so, here’s hoping they throw her specious arguments and obvious delay tactics right back at her and take her off this case.
Graduating Duke and the rest doesn't mean she is diligent now, or that she has a lifelong habit of intellectual rigor. She may have been an indifferent participant in all these roles, or has "retired" mentally into a judgeship of indulging her own political wishlist from the bench. Not necessary to have a "whisperer" guiding you if you're bright enough to lazily dream up legally twisted ways of thwarting your political adversary, Smith. She may feel reversal is a price she's willing to pay for her desired outcome -- Trump acquitted or justice delayed.
It was more the law school info that I was paying attention to as I understand one can choose professors they hear things about or use other means of working too hard at acquiring a BA. But it’s hard to crip the LSAT or any of the other law school activities and she successfully prosecuted her cases as AUSA.
The law should be interpretable by all. Technically, a sense of fairness, good judgement and a dose of common sense is all that’s needed. The founding fathers set it up for anyone to slip into the robes, no legal training needed. Thanks for breaking it down for us in terms we can all understand. Joyce is a national treasure!
I doubt that the founding fathers foresaw the evolution of society to necessitate laws that are much more complex as a result. I don't think, however, that they "set it up" for merely anyone to be a judge or attorney.
Really, would you want to live in a society where literally anyone could "slip into the robes"? I was a court clerk in state Supreme Court for more than 10 years. Trust me, that's not what you want!
I think the thing that irks me the most about Cannon is the disrespect she has shown to Jack Smith. He represents the government but also us, the people. So basically, she has given us the third finger and that is totally unacceptable! My feeling is since she is a member of the Federalist Society, like McAfee, she is getting her instructions from the Heritage Foundation and Leonard Leo. I think they are giving her pointers in stall tactics. We can make up all of the excuses for her like she’s young or she’s inexperienced but in reality, she knows exactly what she is doing. For that reason alone, she should not be adjudicating this case. McAfee is also young but he seems (I hope) to be fair and he listens to the arguments. Do I like some of the calls he’s made? Nope, but he has given all sides decent chances to plead their case. Merchan…I would love for him to reprimand Trump publicly while he is in the courtroom. That would be the icing on the cake!
I have been thinking that the perfect sanction for trump's repeated violations of the gag order is---house arrest with ankle bracelet He'd be allowed out to attend trials. He would have to forgo golf and, except by zoom or similar, campaign appearances. It could be for a relatively short period unless he continues to violate--each violation would cause an extension. I guess there could be an exception for the Republican Convention.
Thus, no sticking him in a jail cell with all those losers he detests. He gets all the comforts of the residential portions of Mar A Lago (but not the common areas).
He will rail and scream, what else is new? But there really isn't anything that can be called "election interference" about restricting a CANDIDATE'S movements for violating a court order. The campaign trail is not an election. Even some sort of appeal of the order wouldn't delay the actual trial. It is a side issue--he'll be able to ATTEND the trial. All he has to do to "get out" is to shut up with the threats.
Great piece!
Marchan’s case will go forward first.
These cases also illustrate that our legal system is not prepared for a defendant such as TFG. If convicted, the courts have to sentence TFG so as not to waste the time of those putting themselves in harms way. Smith must hit Cannon as Tribe & Katyal suggested to allow an appeal with decision and/or her removal by 11th Circuit. Fingers crossed on that.
Fingers crossed indeed.
If we had a majority of sane Justices, we might also feel better.
Thank you Steven for keeping us sane as well, and with such a clear portrait of each judge.
The courage of Judge Merchan and McAffee, as well as jurors' show how our system never really thought it would have to address such a criminal as DJT.
Steven, I am glad you didn’t continue to pursue law as a profession. For us, you are where you need to be. Appreciate your clear and knowledgeable writings. Thank you!
Thanks for the kind words, Helen.
I wonder what compels Judge Cannon to execute her job in this manner? Is she beholden to the law? Or Trump? Or simply politics? It seems her behavior as described today borders on favoring Trump. Her three page dictum doesn’t clearly state anything other than a challenge to the Special Prosecutor to appeal her earlier instructions so as to possibly neutralize her seeming intent to derail this case. Like Steven I’m no lawyer but simply want a jury to render a verdict based on the evidence presented. This judge should not stand in the way.
Richard, I would say Judge Cannon’s behavior more than borders on favoring Trump. I’m an attorney, but
you don’t have to be an attorney to understand that
trying to use a defense to a law Trump hasn’t been charged with is irrational.
Trump is either pretending he was charged under the Presidential Records Act in order to distort the
proceedings for his fans or he’s delusional, or
both. But for Judge Cannon to also pretend the Presidential Records Act applies to Trump’s case
is bonkers.
First, the Presidential Records Act isn’t a criminal
statute, and the proceedings in Cannon’s court are criminal. Everyone involved knows that. Second,
it’s irrelevant because there are no allegations that Trump violated the Presidential Records Act.
I’ve wondered who advised her on this diabolical path to make no decisions so that there could not be an appeal. A rather passive aggressive way to administer the law. It is my opinion, relying on nothing except her rather thin criminal trial experience, her history of missteps in other cases and her actions in this one — an outside group / attorney is whispering in her ear to keep her from getting a 3rd strike from the 11th circuit.
Aileen Cannon should have taken your approach to law school. Despite our best efforts, 50% of lawyers graduate in the bottom half of their class and all too many of them become judges. A lot of Trump’s appointments were deemed unqualified by the ABA.
When discussing the difference between education and being bright, I often refer to the fact that in a career of dealing with small contractors when their bond was in claim, I way more often found the contractors themselves to be way brighter than the attorneys making the claim.
I will say that the rule of "zealous advocacy for the client" means that lawyers are often required to make bad arguments. But those arguments have to have SOME basis in the law. trump's lawyers go far beyond that in nonsensicalness.
🤦♀️ugh!
Any lawyer advanced to a judgeship by Rubio or Scott would be to me, suspect. Same goes for trump knowing "the best people" & appointing Cannon. I am also leery of a FL jury.
Wikipedia has a good summary of her law ,cases, experience. Am counting on Smith to have the upper hand.
Thank you so much Steven.
I am not a lawyer but, like so many, I have become so interested in the law since DJT came into power.
Watching Judge Cannon, and knowing that she is a new judge and seemed not quite professionally adept at the beginning, I am wondering now, as she appears to skillfully delay in any possible way the trial, I wonder if she is not tutored by some sly and much more adept lawyer or judge, or who knows even higher. It feels very strange.
Holy Cow! I just posted a similar comment before seeing yours! This is the woman who forgot to swear in a jury in a criminal trial and also violated the defendants rights. So many issues the prosecutor AND defense reached a plea arrangement in the midst of the chaos to avoid a mistrial.
(I do remember Nicolle Wallace saying recently she wondered who was advising her or if these moves were all her own. I had been thinking the same thing. Her 2 guests chose not to comment.) https://www.forbes.com/sites/alisondurkee/2023/08/04/aileen-cannon-judge-hearing-trumps-documents-case-reportedly-made-significant-mistakes-in-june-trial/?sh=527be336139a
Am I wrong to believe the intent of our founders was that our laws would be based on the Constitution, and interpreted by the Judicial branch of the government? I as well didn't attend law school, but when people who have been "certified by the bar" to interpret and apply our laws are flawed, then so too are our laws. How do we teach character?
Good question gpm.
I’m outraged by Judge Cannon’s obvious bias toward Trump. As someone who’s had security clearances, the thought of his getting away with the theft, hoarding and alleged selling of highly classified documents is horrifying! I’m no historian, but what I’ve read recently in various blogs and postings such as yours and Greg Olear’s tell me that there have been other periods in our history of similar corruption. This gives me some hope, in that we have weathered the storms before and our system of government has survived through many challenges before. I predict that we’ll get through this one as well and justice will ultimately prevail.
I love an optimist. 🙃
Oh my god, Steven, I got out by the skin of my teeth. Dean of Loyola Law School dumped me after the interview. I digress too. I have been reading too much that could have waited til morning coffee. It is 4:00 in th AM and I have to get at least a few hours sleep. Catch you on the flip sde.
There is a reason - actually there are many - that Roy Cohn is despised. The tricks and tactics employed by the faux Don are from his playbook. But the system allows it, if you have chutzpah, stomach and the cash.
Steven, thank you for juxtaposing the capabilities of the three judges involved in Trump’s legal cases. You’ve made it pretty clear that Judges Merchan and McAfee have the knowledge and experience to deal with 2 difficult cases, whereas Eileen Cannon is clearly out of her depth and appears to be interfering in the jury’s role by introducing tangential comments on the Presidential Records Act. The Act itself is quite clear and Cannon should become more knowledgeable about the requirements of this case or recuse herself.
It’s my experience that many, if not most judges,
will bend over backwards to avoid being reversed on appeal. But, that may be assuming they’re competent in the first place.
Well said Steven, on another Substack speaking to the subject of Cannon, a member of that community remarked that perhaps she is getting her rulings from the Federalist Society..Which, if you think about it is a reasonable argument to make..
The difference between the two statutes, PRA & The Espionage Act cannot be more legally glaring..Particularly in that one is criminal and the other civil..A critical thinking non lawyer person’s simple reading of each and the indictment would conclude that the PRA is immaterial to the case.. Making any reliance on it incongruous with the law..I refuse to believe that Cannon does not understand this..Using the calculus that if I do, she must..
Considering the legal communities reaction to this absurd hypothetical jury instruction order, it is simply bullshit..And a willful disregard for the law..
I think the idea that Judge Cannon has a whisperer is trending.
This is her criminal trial history: https://www.forbes.com/sites/alisondurkee/2023/08/04/aileen-cannon-judge-hearing-trumps-documents-case-reportedly-made-significant-mistakes-in-june-trial/?sh=527be336139a
She is incompetent and out of her depth, on top of being biased..Considering this history and the fact even before the indictment was brought she was smacked down by the 11th circuit for interfering with the search warrant..I'm looking for the writ of mandamus..
I want to update this comment.. recently I saw something new mentioned in an installment of Legal AF..For those not familiar it’s a twice a week video/podcast session with three current legal practitioners..One is a USC Law Professor, another is a former Manhattan DA, and another is a national practitioner, particularly in NY & Florida..
In the Saturday evening episode the case law of U.S. v. Torkington is suggested as a way to have Cannon removed from this case..In this Per Curium decision from 1989, the 11th Circuit in part of its ruling had “Reassignment on Remand” In addition to other issues related to the lower courts ruling..
It is worth taking a look at, as it seems to describe what Cannon is doing in the Documents case..
I would advise anyone who believes Aileen Cannon is incompetent to read her Wikipedia page. Unless everything is completely made up, she graduated Duke University with a BA and went to law school at the University of Michigan where she graduated suma cum laude and was inducted into the honor society for law students. She joined the Federalist Society as a second year law student, was active in moot court and was an articles editor for UM Journal of Law Reform. She clerked for a judge on the US Court of Appeals for the Eighth Circuit in Iowa. She was an associate in the DC firm Gibson Dunn. From 2013-2020 she was an AUSA for the southern district of Florida in the major crimes division. *Thank you Wikipedia*
There’s more but you get my drift. She is a hired gun and if I were a conspiracy theorist, I could make the case that the fix was in for her selection. She has thrown every possible roadblock at Jack Smith to derail this, the “easiest” case to make against the former president(🤮). She is forcing Mr. Smith to take her to the Court of Appeals again. If he should do so, here’s hoping they throw her specious arguments and obvious delay tactics right back at her and take her off this case.
She isn't incompetent but lacks procedural experience and, most importantly, impartiality.
Graduating Duke and the rest doesn't mean she is diligent now, or that she has a lifelong habit of intellectual rigor. She may have been an indifferent participant in all these roles, or has "retired" mentally into a judgeship of indulging her own political wishlist from the bench. Not necessary to have a "whisperer" guiding you if you're bright enough to lazily dream up legally twisted ways of thwarting your political adversary, Smith. She may feel reversal is a price she's willing to pay for her desired outcome -- Trump acquitted or justice delayed.
It was more the law school info that I was paying attention to as I understand one can choose professors they hear things about or use other means of working too hard at acquiring a BA. But it’s hard to crip the LSAT or any of the other law school activities and she successfully prosecuted her cases as AUSA.
The law should be interpretable by all. Technically, a sense of fairness, good judgement and a dose of common sense is all that’s needed. The founding fathers set it up for anyone to slip into the robes, no legal training needed. Thanks for breaking it down for us in terms we can all understand. Joyce is a national treasure!
I doubt that the founding fathers foresaw the evolution of society to necessitate laws that are much more complex as a result. I don't think, however, that they "set it up" for merely anyone to be a judge or attorney.
Really, would you want to live in a society where literally anyone could "slip into the robes"? I was a court clerk in state Supreme Court for more than 10 years. Trust me, that's not what you want!
I think the thing that irks me the most about Cannon is the disrespect she has shown to Jack Smith. He represents the government but also us, the people. So basically, she has given us the third finger and that is totally unacceptable! My feeling is since she is a member of the Federalist Society, like McAfee, she is getting her instructions from the Heritage Foundation and Leonard Leo. I think they are giving her pointers in stall tactics. We can make up all of the excuses for her like she’s young or she’s inexperienced but in reality, she knows exactly what she is doing. For that reason alone, she should not be adjudicating this case. McAfee is also young but he seems (I hope) to be fair and he listens to the arguments. Do I like some of the calls he’s made? Nope, but he has given all sides decent chances to plead their case. Merchan…I would love for him to reprimand Trump publicly while he is in the courtroom. That would be the icing on the cake!
I have been thinking that the perfect sanction for trump's repeated violations of the gag order is---house arrest with ankle bracelet He'd be allowed out to attend trials. He would have to forgo golf and, except by zoom or similar, campaign appearances. It could be for a relatively short period unless he continues to violate--each violation would cause an extension. I guess there could be an exception for the Republican Convention.
Thus, no sticking him in a jail cell with all those losers he detests. He gets all the comforts of the residential portions of Mar A Lago (but not the common areas).
He will rail and scream, what else is new? But there really isn't anything that can be called "election interference" about restricting a CANDIDATE'S movements for violating a court order. The campaign trail is not an election. Even some sort of appeal of the order wouldn't delay the actual trial. It is a side issue--he'll be able to ATTEND the trial. All he has to do to "get out" is to shut up with the threats.