Former CIA attorney, addressing all things relating to national security, secrecy, classification, FOIA, climate change, and bird law.
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Jul 15 • 13 tweets • 4 min read
The MAL case was never going to a jury with Cannon, so other than the political gift of the timing, today's development merely accelerates the process of DOJ figuring out next steps. However, there are no "good" options for Smith. The question is which is the least worst.
I'd start from the premise that Smith appealing and NOT asking for her removal may be the worst option. She's proven that she'll do everything she can to tank the case for Trump. But asking for her removal is a pretty dramatic step, one that DOJ will not take lightly.
Jul 14 • 4 tweets • 1 min read
Just as you shouldn't spread false information, please avoid rushing to judgment until all the facts come out.
For example, lots of people are criticizing the two snipers in the video for not firing earlier. As this shows, it's POSSIBLE that their view was obstructed by a tree.
There was absolutely an F-up here, don't get me wrong. But trying to ascribe individual blame without all the facts is inappropriate. These are public servants putting their lives on the line for the protectee. Let's just let the facts come out before throwing them under the bus.
Jul 2 • 11 tweets • 2 min read
As others have noted, the SC's immunity decision may also imperil the classified documents prosecution against Trump. Emboldened by the ruling, he will continue to argue that his designation of certain records as “personal” under the PRA was an official act subject to immunity.
It would be a stretch to say this act relates to a core function, but who knows with Cannon? Instead it likely falls into the middle category of non-core official acts that are presumptively immune from prosecution. Of course, Cannon has shown favor toward the PRA argument…
Jun 26 • 10 tweets • 3 min read
This Jim Jordan report on the letter from the former intel officers is one of the dumber things I’ve ever read. It doesn’t appear to even have a good theory about what the CIA did wrong, but it assumes that randomly quoting some internal emails will give Fox News what it needs.
First, it suggests that the CIA should have stopped the letter even though it didn’t contain classified information. This would violate the 1st Amend rights of these individuals. If it doesn’t contain classified information, the CIA cannot stop its publication. See Constitution.
Jun 23 • 18 tweets • 4 min read
One of the most frustrating aspects of the Biden campaign to date has been its failure to make climate change a leading campaign issue. The climate crisis no longer theoretical; it’s here. And his opponent is a climate change denier. Failing to rectify this would be unforgivable.
Putting climate near the top of the agenda is first and foremost the moral thing to do; we owe it to our children and future generations. But let’s put that aside and just focus on the politics. While I don’t agree, I understand Democratic reluctance in the past to making…
Jun 22 • 7 tweets • 2 min read
One of the most infuriating and under-the-radar things Judge Cannon has done recently is postponing the hearing on Trump's motion to compel discovery that was supposed to be held this upcoming week. Trump filed this motion in January, and she still hasn't ruled on it!
From a timing perspective, this is the most important issue pending before the court. If Cannon orders additional discovery, DOJ will have to search for responsive records from other agencies, and if any are classified, go through the CIPA process again - which could take months.
May 28 • 5 tweets • 2 min read
A few reactions to Trump's filing:
1. On the merits, this points out the big issue with Smith's motion, which is the lack of a supporting declaration & evidence about threats to law enforcement. That seems imperative here, esp. given how Cannon has reacted in the past.
IMO, Smith's team should have taken the time to provide that declaration, even if it meant waiting until Monday. Maybe we'll see it in a reply brief.
2. The lack of meaningful meet and confer is a red herring here. The point is to try to narrow disputes before the court.
May 27 • 10 tweets • 2 min read
Since the "Smith should have just brought the documents case in DC" chorus is picking up again, it's time for a reminder as to why that's not true. Please read before continuing to propagate this false premise.
Smith is bound by the Constitution, federal law, and case law -- which collectively requires that, at minimum, a "conduct element" of the offense be committed in the district where it's charged. Let's look at the offenses.
May 18 • 9 tweets • 3 min read
Judge Cannon's failures in the MAL case have been obvious to all, but when you step back and look at the bigger picture, her record is even more indefensible. As I outline in today's NYT, in over 11 months she's made virtually no progress in the case.
nytimes.com/2024/05/18/opi…
It's important to remember the fundamental purpose of pre-trial proceedings in a criminal case, as I outline here.
Apr 10 • 5 tweets • 2 min read
If Cannon was going to grant Trump's motions to compel classified discovery, or to include the IC in the scope of the prosecution team, it wouldn't make sense for her to schedule Trump's Sec. 5 notice for less than a month from now. So perhaps a good sign for DOJ, but who knows?
Granting the motions would mean DOJ would have to search for add'l records, review them, & work with agencies on CIPA protections. That would take well more than a month. Trump's team would want to see these records before issuing its Sec. 5 notice (info it wants to use at trial)
Apr 4 • 4 tweets • 1 min read
Look, even if Cannon did the right thing on the PRA, she could still:
-Grant the presidential immunity MTD
-Grant the selective & vindictive prosecution MTD (or permit discovery into the same)
-Issue quite a few detrimental CIPA rulings
-Suppress the search warrant returns
-Suppress the attorney-client privileged material (critical for obstruction)
-Run a bad voir dire process
-Adopt whacky jury instructions on other issues
-Issue a whole host of bad evidentiary rulings at trial
-Oh, and disclose witness identifying information prior to trial.
Here's the argument as to why Cannon's potential removal is not ripe at this time:
1. She won't recuse herself if DOJ moves for it, & the district chief judge won't either. It would only come from the 11th Circuit via reassignment on remand after a successful DOJ appeal.
2. Obviously DOJ hasn't appealed anything to date. Frankly, there's been nothing to appeal. DOJ is not going to appeal pre-trial & trial scheduling issues, as a court of appeals is EXTREMELY unlikely to second guess how a judge runs their docket. Being bad on scheduling, and...
Mar 19 • 5 tweets • 2 min read
I agree with @MuellerSheWrote and @BradMossEsq that as for the second scenario in Cannon's order, DOJ will likely argue that if this were the law, she should just dismiss those counts now as a matter of law, and then they'd appeal to the 11th Circuit.
At least this avoids the scenario @JoyceWhiteVance worried about, where Cannon reserved on these issues until after the jury was impaneled, when a dismissal might be non-appealable due to double jeopardy issues. Better to find out where she's at now.
Today's hearing in the MAL case will be very telling.
First, Trump's separate presidential immunity motion hinges on this PRA argument. It's the "official act" underlying the immunity assertion. If Cannon thinks it's a close call, that means a stay is likely coming.
When we eventually get to Trump's presidential immunity assertion, even if Cannon denies it, she will stay the case unless she finds that the assertion is "frivolous." So today will be the early tell as to how she's leaning on this question.
First, giving the briefings also sets a bad precedent. How can you deny clearances to rank & file employees for minor transgressions while treating Trump as if he's cleared after he absconded with 100s of classified docs, refused to give them back, & obstructed the investigation.
Feb 7 • 7 tweets • 2 min read
Mark your calendars: in the MAL case on February 22, Trump will be arguing that presidents are also immune from prosecution for crimes that they committed AFTER their presidency. So I guess he could ask Seal Team 6 to kill Biden today & not be prosecuted?
In fairness, Trump's argument will actually be: if he ordered ST6 to kill Biden while still president, & then ST6 waited & did it after Trump left office, he'd still be immune from prosecution because the initial act occurred while he was president (like moving the boxes to MAL)
Jan 18 • 5 tweets • 2 min read
Belatedly...this is an odd request from Cannon. There's a CIPA Sec. 4 hearing coming up on Feb. 15-16, and now Cannon has requested a separate ex parte hearing with the Special Counsel's office on Jan. 31. This is good in that it's normally what would happen in a Sec. 4 hearing!
But if she's having this new hearing on Jan. 31, what's the point of the Feb. 15-16 hearing? Will Trump's attorneys be allowed to participate? If so, will their portion only focus on WHETHER they should get access? And what will the rest of the two day hearing be about?
Jan 18 • 7 tweets • 2 min read
Finally made it through Trump's motion to compel discovery in the MAL case. Trump basically spews forth a bunch of process-related allegations about bias in the investigation in hopes that Cannon will pull a John Durham and investigate the investigators. And she might!
While there's a classified supplement we haven't seen & many redactions, I was not impressed by the filing. From what we can gather, almost none of the allegations have much, if any, bearing on guilt or innocence relating to the obstruction or Espionage Act charges.
Nov 10, 2023 • 19 tweets • 5 min read
To borrow from @Redistrict, I've seen enough: the May 20 trial date for the MAL classified documents case is not happening.
First, as previously mentioned, Cannon is allowing too much time for the Section 4 litigation to play out, and some of the interim deadlines show (a) she still doesn't know how Section 4 works and/or (b) she intends to allow for some mischief from Trump's team.
Nov 10, 2023 • 4 tweets • 2 min read
This is NOT a victory for DOJ. It's clear that the trial date will be moved back when we get to March 1, continuing Cannon's piecemeal approach of chipping away at DOJ's case. There's just not enough time left after March 1 to complete the remaining CIPA litigation before trial.
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