HERE'S TRUMP'S PRESIDENTIAL RECORDS ARGUMENT, NUTSHELLED:
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.
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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.
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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.
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Oh, I forgot to throw in that the PRA was passed as a response to Presidents stealing busts.
The ridiculousness of this whole PRA thing is difficult to overstate.
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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.
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"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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.)
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(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.
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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.
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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
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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.
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