1/ The Core provision of the Classified Information Procedures Act requires a court, on the govt’s motion, to hold a pretrial hearing “to make all determinations concerning the use, relevance, or admissibility of classified information" ahead of trial.
2/ CIPA's requirement that the judge hold the hearing before trial is important. It means the gov't knows, before a jury is empaneled & double jeopardy attaches, what the cost in disclosure of classified materials will be.
3/CIPA gives the gov't the right to take an immediate, expedited appeal from an order to disclosure classified info, that denies the gov't a protective order keeping the defense from disclosing classified info & penalizing the retention of classified information.
4/If Judge Cannon runs afoul of CIPA, prosecutors will appeal her to the 11th Circuit. If she continues to put her thumbs on the scales of justice for the former president, she could not be reversed, the circuit court could direct that the case be reassigned to another judge.
5/Because the gov't will have to appeal any egregious mistakes the judge makes on CIPA matters, it's a prime opportunity to request reassignment without injecting any additional delay into the case. More about CIPA & all of this in my newsletter: joycevance.substack.com/p/handling-cla…
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1/Before everyone gets too spun up about reports Judge Cannon has been assigned to the Trump case, a little law. I used to be an appellate chief in the 11th Circuit (where Florida is) and I litigated a few appeals where we asked the court of appeals to order a judge to recuse.
2/Altho a judge's behavior in court generally doesn't form the basis for recusal, the 11th Circuit has ordered "reassignment" where a judge leans so heavily for a defendant they call their objectivity in the eyes of the public into question. This is from US v. Martin
3/This is persuasive authority that Judge Cannon must step aside if the case falls to her as a permanent assignment. Her court & certainly the 11th won't tolerate the damage it would do to their credibility if she failed to voluntarily recuse.
In late May, I speculated, in my newsletter, Civil Discourse, about Mark Meadows' absence. That sort of low profile is something I associate in a typical case with someone who has decided to plead/cooperate/testify. But of course, this is Trumpworld, where people don't do that.
Or do they? This afternoon's NYT story confirming he has testified before the special counsel's grand jury (no report on whether it was about the documents case, Jan 6, or both) raises that possibility again. Perhaps he was immunized to testify. Gift link nytimes.com/2023/06/06/us/…
Why the fuss about Meadows? He was one of just a few aides at Trump’s side as the Jan. 6 attack unfolded. He was in on Trump’s phone call to Brad Raffensperger where he begged Ga's Secy of State to “find” him enough votes for the won. His texts were a treasure trove for the J6C.
1/ The smart move here for Trump is a guilty plea to a misdemeanor if DOJ will offer one & a felony with no jail time if they won't. I discuss prior precedent & how it informs DOJ's charging decisions here: joycevance.substack.com/p/the-smart-mo…
2/ For a much fuller treatment & discussion of the law, facts, possible changes, defenses & everything else you need to know, @just_security has this "pros memo" that I had the honor of working on with a very talented group of people.
3/ For those who dislike these possible outcomes (I would number myself in that group), it's nonetheless important to understand the prior precedent that will shape DOJ's charging decisions & any plea offers in this matter. This is Trump's best possible outcome, not the country's
1/ In 2008, the 4th Circuit affirmed Kenneth Wayne Ford’s convictions for retaining national defense information in violation of the espionage act & making false statements to the government. Ford was an NSA computer specialist for two years, with a top security clearance.
2/ The FBI searched his home & found sensitive & classified info in places including his kitchen & his bedroom. He acknowledged taking the documents home on his last day of employment, claiming he thought the materials would help him in his new job with a defense contractor.
3/Then-Maryland U.S. Attorney Rod Rosenstein (who would later become Trump’s deputy attorney general) said, “Government employees who betray the public trust and endanger national security must be held accountable,” at the time of Ford’s sentencing to 72 months in custody.
1/"Except for the relatively small number of Fascist sympathizers," George Orwell wrote, "almost any English person would accept 'bully' as a synonym for 'Fascist'." Political scientists have more precise definitions, but the enduring image of fascism is the hate-fueled bully.
2/In 2018, Madeleine Albright said in an interview: "We can't have a leader that feels that he is above the law. The law and the rule of law is the most essential part of a democratic system.” Unless you're Donald Trump, who has violated so many norms in so many serious ways.
3/So reporting that Trump wants to target prosecutors & agents working the special counsel’s investigation of him if he regains the White House, identifying and firing them is no surprise. But it seems to have mostly gotten lost in the shuffle of other news.
1/ I write a post called The Week Ahead at the start of every week in my newsletter to flag some of the issues I'm paying attention to. Here's a sampling from this week. (Bonus: pictured: our ridiculously lazy Boxer, Miss Fig) open.substack.com/pub/joycevance…
2/First, an American billionaire, patron of a SCOTUS Justice, refused to comply with a congressional subpoena for information about his relationship with that Justice—no surprises—Clarence Thomas. s3.documentcloud.org/documents/2382…
3/Senators Whitehouse & Durbin signed a curt letter responding to Crow’s opening salvo, advising him that his arguments “lacked merit” & giving him a 6/5 deadline for compliance. Crow's view: No man is above the law, unless he vacations with a Supreme Court Justice and his wife.