Thread by @rparloff

A strong, shrewd amicus brief was filed yesterday in the appeal of Judge Cannon’s dismissal of US v Trump (MaL) for the AG’s alleged improper appt of Jack Smith. It urges reassignment to a new judge if the court reverses. I’ll encapsulate. ...
1/18
bit.ly/3Xecred

The brief was filed by @CREWcrew , ret. USDJ Nancy Gertner, & ethics profs Stephen Gillers & James S. Sample. What’s shrewd about it is what it doesn’t do. E.g., it never mentions who appointed Cannon. (Legal nonstarter & nobody needs to be told.) ...
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@CREWcrew ... For the most part, It doesn’t allege that Cannon’s in the tank for Trump. Instead, it quotes her expressed view that prosecuting an ex-president is an intolerable affront to his dignity & implies that her rulings are distorted by that firmly held belief. ...
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@CREWcrew ... On the other hand, toward the end it goes a further, alleging that her conduct has “repeatedly appeared to cross the line from mere legal error into active judicial intervention & advocacy on behalf of the former president.” ...
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@CREWcrew The brief groups Cannon’s anomalous conduct into groups of 3 (as in 3 strikes). An 11th Cir reversal would be Cannon’s 3d in this matter. The 1st two related to her 2022 ruling blocking prosecutors from examining the fruits of the M-a-L search by appting a special master. ...
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@CREWcrew ... In Sep 2022 the 11th Cir unanimously rev’d her denial of a temporary stay in that matter & then, in Dec, unanimously reversed in toto, noting that affirmance would “violate bedrock separation-of-powers limitations” & require “a radical reordering of our caselaw” ...
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@CREWcrew ... The 3d reversal would be of her appealed decision dismissing the case which “hinged on ignoring the plain text of four federal statutes & dismissing as ‘dicta’ a landmark SCOTUS opinion confirming the AG’s power to appoint a special counsel.” ...
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@CREWcrew ... The brief also offers 3 examples of Cannon’s anomalous handling of the case before the dismissal: (1) her 2022 appt of the special master; (2) her demand for jury instructions on “a spurious legal defense that would have gutted the govt’s case”; ...
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@CREWcrew ... and (3) her “failure ... to move the case forward in any significant way.” The jury instructions flap was when she proposed (below) that Trump, by taking classified docs from the WH, was silently & unreviewably declaring them “personal,” rendering them lawfully his.
/9

@CREWcrew ... The amicus brief says that Cannon’s proposed jury instructions seemed to flout language in the 11th Cir’s Dec 2022 ruling that Trump “neither owns nor has a personal interest in” classified docs. (Refusal to follow appellate rulings is one basis for reassignment.) ...
/10

@CREWcrew ... Refreshingly, when discussing why Cannon might have been slow-walking the case, the brief identifies the elephant in the room: that Trump, if elected, will likely make these cases go away through abusive exercise of presidential powers. ...
/11

@CREWcrew Jack Smith has never spelled that out, and the SCOTUS majority, in its immunity ruling—while criticizing the lower courts for their expedited treatment of the case—pretended to have no clue what the rush might have been about. ...
/12

@CREWcrew As evidence of Cannon’s “failure to move the case forward,” the brief relies in part—but heavily—on the litany of odd events described by former CIA atty @secretsandlaws in his NYT op-ed. ...
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@CREWcrew @secretsandlaws ... Throughout, the brief also cites 11 other NYT articles, including 10 by @alanfeuer and/or @charlie_savage , which, in turn contain quotes from well-credentialed experts expressing astonished concern at various things Cannon had done. ...
/14

@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... While Trump (or whoever else files a brief defending Cannon) will doubtless mock this brief’s heavy reliance on NYT articles, the legal test for reassignment hinges on “the appearance of justice” ...
/15

@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... and cogent criticism of Cannon by well-credentialed experts should not be laughed off merely because it’s found in a great newspaper that isn’t owned by the Murdochs. ...
/16

@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... The lead atty on the amicus brief is Steven A. Hirsch of Keker, Van Nest & Peters. I’m impressed. I’ve tried writing about Cannon’s anomalous conduct myself & have always gotten bogged down in the weeds. All of us who’ve followed the case closely ...
/17

@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... know that there’s still more weirdness out there. But most of it is too minor to warrant reassignment in itself, and only becomes suspicious cumulatively. Hirsch has taken the right tack, IMHO. This brief had to be written & he & the amici did a good job with it.
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