Roger Parloff Profile picture
May 11, 2024 27 tweets 10 min read Read on X
As Trump’s classified docs prosecution goes forward, now with no pretense of trial before the election, Judge Cannon appears poised to permit him to use public hearings in the case to sound his campaign themes. ...
1/25
... Here, as he did so successfully in Fulton Co., Trump will try to turn the tables, putting prosecutors on trial. Almost all of Trump’s motions (& defenses) reduce to campaign themes: Prosecutorial misconduct and selective & vindictive prosecution orchestrated by Biden. ...
/2
... At first, before Trump sewed up the nomination, he wanted four days of hearings on these themes between July 1 and July 8—the run-up to the July 15 Republican convention. ...
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... Now those hearings, whose dates Cannon hasn’t reset yet, will come closer to the election, which should be even better for Trump. He may also have more spaghetti to throw at the wall then, because it appears that Cannon plans ...
/4
... to give him more, & unprecedented, discovery. That’s the import of the extraordinary 3-day hearing she’s set in June on Trump’s motion to redefine the “prosecution team” to include members of Biden White House, NARA, intelligence community, DOD, etc. ...
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... The vanishingly thin claims of White House involvement in the prosecution come down to two pieces of non-evidence. One is a malevolent, speculative reading of a NYT article about a different probe that says the opposite of what Trump contends. Specifically ...
/6
... on 4/2/22, NYT said Biden was frustrated with the pace of the AG Garland’s J6 probe but *hadn’t* spoken to the AG about it. Trump hypothesizes that Biden ordered aides to leak this story to NYT to light a fire under AG’s feet. ...

/7 bit.ly/4dryjdv
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... Trump’s other smokeless gun is White House dep counsel Jonathan Su’s involvement in Aug-Sept 2021 in NARA’s negotiations with Trump reps over return of presidential docs, like the Kim Jong Un letter, Obama letter, & Hurricane Dorian Sharpie chart...
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... Su got involved because a career official in the White House Office of Records Management (“person 40”) had witnessed Trump’s hoarding of presidential documents while Trump was still in the WH & had become concerned even then. ...
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... This WH ORM official (person 40) had learned then from Trump’s staff secretary (person 14) that Trump had ~24 bankers boxes of docs that needed to get to NARA. Staff secy joked to person 40: “NARA and what army?” would ever pry those boxes away from Trump. ...
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... In August 2021 a Trump rep (Person 27, who seems to be Mark Meadows) suggested a call with the WH ORM official, who was still at WH. WH ORM official wanted WH counsel involved. Su obliged. Both sides saw this as routine & anodyne. ...
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... Trump’s selective prosecution claims hinge on childishly strained comparisons between Trump’s conduct & that of other officials: Joe Biden, Hillary Clinton—even Deborah Birx! (When Birx politely returned docs to NARA in 2021, one was assessed as classified.)
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... Despite lack of evidence, Judge Cannon has shown herself to be highly receptive to themes of both selective prosecution and prosecutorial misconduct. At a March hearing, for instance ...
/13

bit.ly/4clcMCG
... she pressed lawyers on why Trump alone has been charged when other officials have also taken classified docs when their terms ended—unfazed by the singularity in Trump’s having allegedly defied a subpoena & obstructed justice in multiple, elaborate ways. ...
/14


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... It was after that hearing that Cannon ordered the parties to draft two possible jury instructions, both of which the govt described as “fundamentally flawed” & “clearly erroneous” & one of which, it said, would “result in directing a verdict against the govt.” ...
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... As to prosecutorial misconduct, Cannon has twice, *on her own* ordered attys to explore or report to her on possible govt wrongdoing. E.g., two months after Trump first leveled accusations relating to govt’s alleged intimidation of atty Woodward ...
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... Judge Cannon asked the attys, *on her own,* to brief her on the issue under seal. She said she’d read about the claims in “news reports” and had an “independent obligation to protect the integrity of this judicial proceeding.” ...
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... At about the same time, Cannon, again *acting on her own,* ordered attorneys to report to her on whether the govt was making abusive use of the DC grand jury to undermine Cannon’s authority in South Florida. ...
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... In contrast to Cannon’s solicitousness about possible govt wrongdoing that no party had asked her to look into, she has repeatedly stonewalled allegations of defendants’ sharp practices when they were brought to her attention. ...
/19
... E.g., Woodward’s first unsolicited reference to his disputed 2022 exchange with a DOJ atty actually came in a *reply* brief filed in support of a motion to dismiss he had filed for Nauta that had not originally mentioned the incident at all. ...
/20

bit.ly/3y6d54t
... No litigant is supposed to introduce new claims in a reply brief, because it forces the opponent to move the judge to either strike the new material or permit the filing of a surreply—with the latter approach greatly drawing out the briefing process. ...
/21
... The special counsel has twice complained to Judge Cannon that the defense has raised new issues in reply briefs as an abusive stalling tactic. ...
/22
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... On each occasion Cannon winkingly acquiesced in the apparent abuse. Don’t be confused by the words “granting in part” below. She’s granting the govt’s *fallback* remedy—filing a surrebuttal—but refusing to chide the defense for abusive conduct. ...
/23
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... We had a starker example back in Nov 2023. Trump asked Cannon to put off the SDFla trial because of the DC trial date, while failing to tell her that, later that same evening, he was filing a motion in DC to stay the DC case entirely. Govt brought it to her attn. ...
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... In response, Cannon not only ignored the defense's sharp practice, but warned the govt that she would strike its future notices if it failed to comply with a purported 200-word limit imposed by Local Rules. The govt’s notice had used 217 words. ...
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... To get a feel for what it’s been like for the govt to litigate this case before Judge Cannon, see this article on a key issue in the upcoming May 22 hearing on Nauta’s motion to dismiss for selective & vindictive prosecution. ...
/26

bit.ly/3y6d54t
... P.S. This thread has been powered by @lawfare. If you haven’t already, please consider helping @AnnaBower , @TylerMcBrien , Ben Wittes, @qjurecic & me to cover the 4 far-flung Trump prosecutions. Thanks!

/27-endgivebutter.com/c/trumptrials

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More from @rparloff

Mar 1
Judge Alsup has issued his written TRO, directing that OPM’s terminations of probationary employees across govt be stopped & rescinded. “No statute—anywhere, ever—has granted OPM the authority to direct termination of employees in other agencies.” ...
1/3
storage.courtlistener.com/recap/gov.usco…Image
Though acting OPM director Ezell claimed agencies made independent decisions, Judge Alsup found a "mountain of evidence" to the contrary, from DOD, the VA, USDA, IRS, NSF, & others. ...
/2 Image
The crux of the final order is here and ...
/3 Image
Read 4 tweets
Feb 15
Yesterday, in declining to enter a temporary restraining order (TRO) barring DOGE from accessing data systems at the Dept of Labor, CFPB, & HHS, Judge Bates actually delivered a blow to DOGE—though it may only be felt in other cases. A thread. ...

1/10storage.courtlistener.com/recap/gov.usco…
Different suits challenge DOGE on different grounds. The suits challenging its access to data systems in Treasury, Labor, CFPB, & HHS focus on the Privacy Act. The claim is that DOGE is rooting around in our ultra-sensitive data without our permission. ...
/2
... The hurdle for plaintiffs is that DOGE is structured so that DOGE cadres are “detailed” from US DOGE Service to the agencies and then become “agency employees.” (I’m simplifying.) It’s set up that way so that DOGE cadres appear to fit into ...
/3
Read 10 tweets
Feb 10
Trump Adm brings emergency motion to dissolve NY judge's TRO re DOGE; claims it bars TreasSec from access [based on comma ambituity]; threatens mandamus to appeals court arguing no executive action can be insulated from political appointees. ...
/1

storage.courtlistener.com/recap/gov.usco…
... Judge Vargas (the judge now assigned to the case, not the emergency motions judge who entered TRO) has ordered parties to confer to see if they can narrow issues. If not, plaintiff state AGs respond by tonight at 5pm, with govt reply by 11pm tonight. ...
/2 Image
... Trump Adm eager to tee up key "unitary executive" claims—that no executive function can be insulated from political appointees of President—for appellate courts. ...
/3 Image
Read 4 tweets
Feb 9
The challenge that all the DOGE-related lawsuits face is that DOGE has a formalistic structure that’s designed to look benign, but which appears to be a charade. Proving it’s a charade in court in a compressed time-frame will be hard. A thread: ...
1/14
As originally described in Nov. in the WSJ, DOGE was about saving trillions of dollars through vast “regulatory recissions, administrative reductions, & cost savings.” ...
/2 Image
... Yet when unveiled in Trump’s executive order, DOGE’s purported purpose mentioned none of those goals. Instead, the EO claimed that DOGE was about “modernizing federal technology and software to maximize governmental efficiency.” ...
/3 Image
Read 15 tweets
Feb 8
Here is Judge Paul Engelmayer’s remarkable TRO barring (in effect) DOGE from accessing Treasury’s payment system & ordering (in effect) any DOGE person who has had access to destroy anything already copied. A short thread ...

/1 documentcloud.org/documents/2551…Image
This is broader than the “consent order” entered Thurs. by Judge Kollar-Kotelly in DC. Latter allowed 2 DOGE “special govt employees” (SGEs) to keep working but not send data out of Treas. This one bars access to SGEs & orders them to destroy anything already copied ...
/2 Image
The new TRO is supposed to be served on DOJ by noon today. Unless challenged or altered, it would last till 2/14, when a different judge, Jeannette Vargas (a federal judge in Manhattan) would hold a hearing on whether to issue a preliminary injunction. ...
/3
Read 11 tweets
Feb 6
At today’s hearing in the FBI agents’ suits to enjoin the govt from disclosing the names of agents who worked on Jan. 6 cases, Judge Cobb’s most interesting comments related to her desire to know more about the survey that DOJ made agents fill out. ...
1/4
At future hearings, she said, she wants to know: “What's [the survey] for? Nothing on its face has anything to do with misconduct. What's being investigated?” (Quotes approximate.) What she’s getting at is that retaliation is the *only* explanation. ...
/2
... As @MarkSZaidEsq & @NormEisen wrote in their complaint, “Defendants do not have discretion to redefine the truth of Jan. 6, 2021 [or] to recast the lawful actions taken ... as illegal ....”
/3 Image
Read 4 tweets

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