Thread by @lee_kovarsky

MOAR EXPLAINING RE: CANNON -

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.

1/

https://twitter.com/kyledcheney/status/1775958948375306242

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.

2/

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.

3/

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.

4/

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.

5/

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.

6/

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.

7/

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.

8/

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.

9/

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.

/e