For those asking, what next, on stolen docs, this is a good summary.
One key detail though: #Cannon ordered everything since November 2022 unwound. So any investigative activity after that (eg, flipping Taveras or getting Evan Corcoran's testimony) would have to be redone.
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.
3/ I'd start from premise that Smith appealing & NOT asking for her removal may be 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
For a refresher on 11th Circuit precedent on removal, please see below:
. This would be the second time she's taken an appealable, fairly lawless step, so maybe it's enough? But she'll just say "hey, a Supreme Court justice agrees w me!"
And there's some suggestion in case law that the 11th Circuit would want to see MULTIPLE instances where she was overturned prior to removing her. See the standard below. It's not clear whether they'd count the search warrant litigation.
5/ As others have noted, filing a new indictment from the US Atty's Office for S.D. Fla. is an option. But if it goes to Cannon again (which is likely), what have you accomplished? And she'd likely need to do something AGAIN to ask for removal.
6/ A third option I'd float is filing a new indictment in DC. As previously explained, this indictment could NOT include the Espionage Act charges. There's just no legal basis for venue there, as explained below. And the immunity decision makes it harder.
May 27
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.
@JenniferSlack@GottaLaff@RiaResists@MichelleRNCHPN
I think the storm has already arrived. It's like feeling the wind pick up and seeing the ocean swells rise when you are on the outer edge of a hurricane. It's happening. It's just a question of how much damage will be done.😔
Hang in there. Understand that is is very difficult, but try to remain calm. The storm is certainly intense, but it is battering the opposition as well, and there is no way to predict the overall impact of this maelstrom.
@mastodonmigration@JenniferSlack@GottaLaff@RiaResists@MichelleRNCHPN
It's so often the case, isn't it? The last few days (years) have been stressful for many of us.
I am confining my news intake to a couple of trusted sources who approach these matters calmly and logically. Sick of sensationalism.
@GottaLaff@MichelleRNCHPN I was glad to see you take a break yesterday & then call it a day earlier than usual.
I’m going to work, get an AA meeting & do some house work.
We unify against him & them.
This shit makes my character defects glaringly obvious but it’s still hard not to anticipate what’s next.
Last night I sat on our small deck, practicing mindfulness
Looking at the sky
Feeling the cool breeze
Smelling the summer air
Hearing leaves rustling
Tasting my breath mint
@GottaLaff
My doctor won't give me any.
Oddly, my brain is WAY too busy to meditate which was her solution. I'm going to have to go back to an audio book that is pure fantasy I think. Reality is too painful for now.
@MichelleRNCHPN And I'm very resistant to meditation because I've tried for decades and it didn't work for me. This particular woman/series did, and I finally subscribed to Calm just for her
@GottaLaff
I have tried meditation many times. At this point, I have to do something and am very willing to try again. I really appreciate the information and will do this. My life is a series of being unsuccessful initially, but nailing it later on. I love a challenge.
@MichelleRNCHPN I've returned to my old TM practice as of late- got my mantra back in my hippie youth. It gets easier the more you do it- I think that's true of meditation in general.
@GottaLaff@MichelleRNCHPN It’s frightening for sure. I don’t drink or do drugs so I just have to suffer with nerves. 😬 Sometimes I wish I was drunk 24/7 or on drugs 24/8.
@GottaLaff@MichelleRNCHPN I'm really not doing so good today. When I get home I'm going to take a PRN Ativan. The news is just unrelenting. While I understand the Canon news could have been far worse, everything just keeps coming at us, everything seems terrible, and it's starting to wear me down.
7/ This new DC indictmt wd be narrow & focus only on Trump's obstruc of grand jury subpoena. There is legal basis for bringing this case in DC, if brought under 18 USC 1512. See venue provision below. Per 18 USC 1515(a), "official proceeding" incl GJ.
There is q of whether this statutory venue provision is constit'l. In US v Trie), DC district court permitted a case like to proceed. There is some earlier DC precedent to contrary, but Cong amended 1512's venue provisions after those decisions
8/ And under the recent Supreme Court case of Smith v United States, there is an argument that a venue challenge from Trump would not be appealable until after conviction. But would this Supreme Court agree? Really hard to say. (HT to @rparloff
for workshopping the argument here).
9/ But as Chuck Rosenberg noted on TV, DOJ will be reluctant to pursue this option given perception of "judge shopping." I share that concern. The argument in favor is that Cannon and the Supreme Court (with immunity decision) changed the legal landscape here.
Remember, the Espionage Act charges are really DOA with Cannon after the immunity ruling. Even if the case goes to someone else, I think DOJ would prefer to narrow its indictment somewhat to focus solely on Trump's failure to return docs
10/ 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.
11/ So even if DOJ pursues option 1 (appeal and removal) or 2 (refiling in SD. Fla.), they will likely want to narrow the allegations in the indictment somewhat to focus squarely on his failure to return the docs after GJ subpoena, while still keeping the Espionage Act charges.
12/ Finally, filing a new indictment in either SD Fla. or DC will raise questions about interference with the presidential election, even if we're outside of the mythical "60 day" window. DOJ didn't create this situation; Cannon did. But the perception of playing politics is real.
13/13, all via former CIA atty Secrets and Docs, not me:
So sadly, none of these options are "good." They are all bad, and the question is which is the least worse. It's a very tough call, but I'd likely pursue option 1 -- appeal and removal, and then still narrow the indictment allegations if and when the case proceeds.
@GottaLaff No, not good at all. But it’s important for us to know the facts and have realistic expectations re: next steps. Having said that, I’ll be limiting my time on social media today for my mental health. I hope you take care of yourself too!
Great rundown of where the DOJ is on this from your source - thank you for the clarification.
It really does look dark right now, but the DOJ has their top notch folks on this one, so there is some hope for a just resolution eventually. Someday.
In the meantime, we need to continue to get the facts out there and not be misled by the media circus or the GOP's propaganda. Some days that's harder than others.
@GottaLaff Honestly, I’m sick of hearing about perception. Even the Supreme Court judges ignore the perception that they’re criminals and corrupt. But we’re supposed to worry about perception of true criminal indictments against a citizen who stole top-secret documents and may have sold that information. We haven’t found out about that yet. Where is the DNI investigation into all the CIA agents who have died? Geez
"they will likely want to narrow the allegations in the indictment somewhat to focus squarely on his failure to return the docs after GJ subpoena"
Um, that indictment already does that. He is charged with thirty-plus counts of unlawful document retension, and conspiracy to commit same. All those acts took place well after he left office. He is not charged with document theft or the removal of documents from the white house.