Lee Kovarsky Profile picture
Apr 4 10 tweets 2 min read Read on X

People are suggesting that Smith can mandamus Cannon's refusal to declare the PRA instruction - meaning ask the appeals court (CA11) to require her to do it before jeopardy attaches.

DOJ is just not going to be able to do that, and I wish folks would stop saying that it should. In order to mandamus a judge, it has to be the case that she's failed to do something there is a clear duty to do.

There just isn't a clear duty to specify the jury charge before a jury is sworn in a criminal trial. I can't find one case even suggesting that. That is, you can't mandamus her to specify the PRA instruction, and you can't appeal because there's no order to appeal.

What I think we're likely to see now is INSTEAD some sort of motion for recusal, because Cannon has made clear that she's pursuing a course of action allowing her to shut this case down in a posture that is effectively unreviewable.

And DOJ will point to the refusal to declare the PRA instruction as one piece of a larger picture of bias, both real and perceived, that justifies recusal. Cannon will deny the recusal motion, and then Smith will appeal that.

So *that* is the way the refusal to specify the PRA instruction will find its way into an appellate proceeding at CA11, not because Smith "mandamuses" Cannon there on her failure to pre-specify the instruction.

And to be clear, Smith is quite likely to lose all of this. CA11 is unlikely to reassign the case on appeal. And good, practiced attorneys don't move for recusal lightly - contra what many less-practiced folks have suggested in media.

A motion to recuse is a hail mary that antagonizes the judge, making it that much harder to win if you lose the recusal fight. And you almost always lose the recusal fight.

That being said, Smith is certainly looking at Cannon's body language, and the content of this order, and thinking that he's probably got little left to lose.

So recusal it will likely be.

This is all very depressing for people that want to see Trump held to account, but I'm just explaining how the world is; not how it should be.


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More from @lee_kovarsky

Apr 5

Imagine a marble bust of Abe Lincoln sits in the white house and the statute says it can only be moved around by "authorized" personnel, with authorization defined by Executive Order.

Trump, who is not authorized by the Order, takes Abes' bust to Mar-a-Lago, later declares that the very act of taking it had the effect of a personal-record classification, and that right to declare records to be personal means that he was "authorized" to move it.

To be clear, this is literally the stupid fucking PRA argument that Cannon refuses to take off the table - in fact she's signaling that she'll permit an acquittal on it in a posture that won't allow review of her obvious error.

Read 4 tweets
Apr 4
I know folks wantto wish mandamus into existence, but a mandamus petition under 28 USC 1651 is literally organized like this:

- Introduction


II. There is no adequate remedy at law.

III. The equities favor relief.

I have been asking for 24 hours and nobody has produced anything remotely on the order of what's necessary for (I). Specifically, Cannon has no legal duty, let alone a clear one, to specify her jury instructions before trial.

"She's telegraphing an intent to issue an erroneous jury instruction so forcer her to declare that intent now so I can appeal it before jeopardy attaches" is not a real mandamus argument.

Read 5 tweets
Apr 3

Folks are being a little overly optimistic about Jack Smith’s filing. IMHO there are two things driving that:

(1) A failure to distinguish between a mandamus petition and an ordinary appeal.
(2) Confusion about what could be mandamused.

Cannon is indulging DJT’s batshittery about the Presidential Records Act (PRA) and might deliver a jury charge predicated on that error. At that point the jury will have been sworn, jeopardy will have attached, and it will be too late to correct the error.

Smith has asked her to declare her intention re the PRA *now* so that he can challenge the underlying batshittery before the ability to challenge is spoiled by the attachment of jeopardy.

Read 10 tweets
Mar 1

1. SCOTUS just agreed to hear whether Trump has “presidential immunity” (PI) for his attempt to fraudulently subvert the 2020 election and stay in power.

2. In this context, PI refers to an immunity from criminal prosecution, unique to the president, for in-term conduct.

3. SCOTUS has never recognized any such immunity, so we don’t know what the scope would be if it did exist.

4. There is PI in CIVIL cases – where private plaintiffs seek damages against ex presidents – but a foundational premise of the civil case standard is that it is too broad for criminal cases. (The case here is Nixon v. Fitzgerald.)

Read 16 tweets
Feb 6

The DC Circuit took some time, but it sure seems worth it, for two reasons:

(1) The opinion is incredibly thorough and generally strong;

(2) The Panel eliminated what looked like fractures coming out of OA.

More thoughts below:

TOPLINE, The DC Panel Held:

(1) There is interlocutory jurisdiction notwithstanding the Midland Asphalt argument;

(2) Former President (FPOTUS) does not have immunity from prosecution even for official acts;

(3) FPOTUS can still be prosecuted even if acquitted by Senate.

I've said my piece on the jurisdictional argument, and some members of the commentariat were wildly over-reading Midland Asphalt, as me, @steve_vladeck, @marty_lederman, and others insisted.

Read 17 tweets
Jan 11
Any faithful interpreter of text will read this piece by Mark Graber (@mgraber_), and will refuse to make or indulge further the argument that POTUS can't be DQ'd from future office because POTUS isn't an "officer of the United States."

The entire POTUS-is-not-an-officer arguments represent the worst things about the new textualism. If you were to interview those skeptical of judicially applied textualism, they'd tell you that it too often feels like interpreters simply search for data that support

their preferred interpretation and ignore or minimize the rest. But that's not honest! There will almost always be data pointing in different directions, and the interpreter's job is to weigh the information about public meaning honestly.

Read 5 tweets

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