Former CIA attorney, addressing all things relating to national security, secrecy, classification, FOIA, climate change, and bird law.
25 subscribed
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.
The worst thing on the merits is how she's handling CIPA Section 4 litigation -- she's dragging it out much much longer than needed.
DOJ could probably file its Section 4 motion next week if not sooner. No reason to make them wait until Dec. 4 for that.
Nov 2, 2023 • 10 tweets • 3 min read
Cannon's ruling on CIPA Section 3/4 is without precedent, but DOJ is unlikely to appeal. Instead it will file a CIPA Sec. 4 motion to prevent Nauta & De Oliveira from viewing the classified discovery provided to their cleared defense counsel. Annoying for DOJ, but surmountable.
Normally in a CIPA case, the CIPA Sec. 3 Protective Order will allow DOJ to designate some classified records as being available to cleared defense counsel only, not the defendant. Most of these cases are terrorism and export/arms cases, & it makes good sense to prevent...
Oct 7, 2023 • 9 tweets • 3 min read
This is a good example of where Cannon's inexperience with criminal cases could come into play in the MAL case. DOJ has vastly overachieved with unclassified discovery, but Cannon does not have the perspective to appreciate that. However, the USG is doing itself no favors...
...with the ongoing issues with enabling defense counsel to access some of the charged docs, outlined here. It gives Cannon an easy excuse for delay, & it's not crazy for Trump's team to argue that they should have full access to all the charged docs...
DOJ's opposition to Trump's motion to delay the CIPA schedule is largely as expected. But I would flag some simmering issues regarding restrictions and/or delays from certain IC agencies regarding the documents. I'm sure the Special Counsel's Office is ticked off about them.
First, Trump's attorneys still don't have read-ins for some of the docs. Once someone has the necessary security clearance, the compartment read-in is just a matter of arranging a briefing (or it can be done by just signing a paper), assuming the agency-owner is willing.
Sep 23, 2023 • 15 tweets • 3 min read
Trump's motion to postpone various deadlines is more of an attack on Cannon's schedule than DOJ, and it's based on a misrepresentation of how CIPA & criminal discovery normally work. It's really a "let's throw a bunch of legal garbage against the wall & see what sticks" motion.
1. This is really about the fact that Trump's team doesn't like Cannon's schedule, & this is actually a disguised motion for reconsideration. But they don't want to be seen as attacking Cannon, so they are blaming DOJ even though DOJ is in compliance with Cannon's orders to date.
Aug 13, 2023 • 13 tweets • 3 min read
While I don't disagree with the sentiment here, I actually think there's a non-trivial chance that DOJ reaches an agreement with Trump's team to create a SCIF at MAL. This may be another situation where throwing out the playbook is warranted. Here's why:
1. Strategy: Yes, in ANY other case, this request would be opposed at all costs. But this is not a normal case, and DOJ has to avoid falling into unnecessary traps that distract from a conviction (and here, delay could equate to no conviction). Keep your eyes on the prize.
Jul 19, 2023 • 4 tweets • 2 min read
Giving opposing counsel 2.5 business days to review the CIPA Sec. 3 protective order before filing it was one of the first missteps on DOJ's part. They should have proposed it much sooner. Also, not that unusual for judges to require an extensive meet & confer process.
I've been wondering about the timing for weeks. See thread below. I think they could have started negotiating with Trump's lawyers before Nauta was arraigned, but even then, he was arraigned on July 6, and they didn't propose it until July 12.
As mentioned previously, the next significant phase of the Trump MAL docs prosecution could be titled "The Education of Aileen Cannon." DOJ will have multiple successive opportunities to educate her about the nat'l security imperatives at issue in this case. But will it resonate?
Before long, DOJ will move under CIPA Sec. 2 to have a hearing with Cannon about how classified information will be handled during pre-trial proceedings, with a focus on scheduling & other admin. matters. Per the statute, Cannon is required to hold a hearing if DOJ requests it.
Jun 18, 2023 • 12 tweets • 3 min read
I wanted to flag one part of my discussion w/ @MuellerSheWrote: the idea of "Goldilocks" docs has been very helpful to the discourse about the the Trump case, but they are actually a myth of sorts. Instead DOJ & the IC typically settle for "Hold Your Nose" docs. I'll explain.
I believe the term was coined by my former colleague @BVanGrack, and I'm in no way criticizing the concept or phrasing . It's been an extremely helpful way to get people to realize that there will be some docs that are "too hot" to charge for the IC due to their sensitivity...
Jun 15, 2023 • 11 tweets • 3 min read
What is this "Silent Witness Rule" I've been tweeting about like a mad man since September? Why is it going to be one of the most critical issues impacting the outcome of the Trump classified documents case? Please check out this excellent @rparloff piece for all the answers.
To refresh, the Silent Witness Rule (SWR) allows DOJ to use the classified docs at trial w/out declassifying them, by showing them to the jury & legal teams only, but not the public. Witnesses testify in generalities about the docs while the jury reads along, but avoid specifics.
25 subscribed
