The point: if #Cannon wants to tank the case for #Trump, there are a ton of ways she can do it other than the PRA (many of which can come during trial). She knows this. #JackSmith knows this. He needs to get her off the case to avoid all this, but will have to wait and pick the best time. That time is not now.
Emptywheel:
If I'm Jack Smith (I'm not ), I wait until she forces the witness ID.
I respectfully disagree with Neal for one reason: I think Smith has to try to exclude the PRA defense first through a motion in limine.
If Cannon denies that route, then you seek mandamus relief.
Neal Katyal:
Cannon rejected Trump's bogus Pres Records Act defense,only for now. Has (weirdly & pointedly) refused to decide issue, despite Smith's warning double jeopardy wd then apply. I think Smith has no choice but to go to 11th Cir on mandamus..tough standard, but met here.
@GottaLaff I've been saying for a while that's the thing she's probably aiming to do -- get enough through the trial and then just issue an acquittal rather than a dismissal.
@GottaLaff I do have a question for all the legal eagles out here. Is the 11th curcuit watching all of this as closely as we are? I mean it’s their country too, wouldn’t they be staying on top of of all of this?
So Brad is saying deal with it during the trial, but it seems awfully risky, way too risky, to wait until trial to go to the 11th Circuit to get a new judge.
Cannon has too many ways to scuttle the case once the jury is seated.
I think Marcy is right in pointing to the witness ID issue as the opportunity to take it to the appeals court.
@GottaLaff I agree that a motion in limine (essentially seeking a pretrial legal ruling that certain evidence is not relevant or admissible) is the most viable way to proceed, setting up a potential trip to the 11th Circuit if denied.
But the more likely scenario is that Cannon simply doesn't rule on the motion until trial. Then what?
That happens all the time in my cases, even without a judge who seems determined to do what she can to help one side.
@GottaLaff Cannon is being deliberately obtuse in her ruling pretending Jack Smith wanted jury instructions done early when his filing was about using the PRA as a defense. She knows this- yet keeps it as an open possibility later even though it’s not based in law at all. And not what he is being charged with. Trump is also not guilty of arson, but Smith isn’t charging him with that either.
@GottaLaff I wonder if #JackSmith were to withdraw some of the more heinous charges for "further investigation" and leave her enough rope to hang herself on the lesser ones. She's not completely stupid. She'd know that those charges are going to come back and if she screws up in this trial, she can't protect Trump in the big trial.
@GottaLaff May not be the right word. I'm not a lawyer.
There are lesser charges that would still end up jailing Trump. If she interferes with the trial, she . will be disqualified.
Then he can bring back the worse charges and make sure he stays in jail.
I know something like this has been used in organized crime cases where it is suspected that the judge was crooked. It was years ago and I can't remember where, but I think it was Boston when I was at Ft. Devons. If so, that would be about 64 years ago.
@Ralph058 But this is about a former president who stole top secret documents and then obstructed justice, not a mob boss (although he acts like one) who may become president again.
There’s no time to screw around with stuff like this, totally unrealistic. Plus, this case may never see the light of day the way it’s going, and if he wins, it’ll be gone for good.
@GottaLaff
It seems to me that no matter how this plays out, it will accomplish Trump's (and Cannon's in fealty) main objective to delay everything past the election.