No. of Recommendations: 6
There are differences of opinion on Cannon's response to Jack Smith. First Mueller on Smith
Mueller She Wrote on Jack Smith’s response to Cannon
Jack Smith basically says “you’re basing your order on a misinterpretation of a law that has no bearing on this case, and if you think it does you have to tell us now so we can drag your ass to the 11th circuit before double jeopardy attaches, and if you DO try to pull this off at trial, we will seek a writ of mandamus. I’ve written a PROPER jury instruction, and since you ordered me to, I’ve written the erroneous and completely stupid jury instructions you directed us to write.” I’m paraphrasing, of course.
He then rubs it in a little and calls his jury instruction Government’s Proposed Jury Instruction: The Jury Is Correctly Instructed that Unauthorized Possession Is Based on Executive Order 13526, Not on the PRA.
Then when it comes time to write up the jury instructions Cannon asked for, he titles the first one: Scenario (a): The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Personal Record, Regardless of Classification, and the Jury Is Then Asked to Determine Whether Each Document Is Personal or Presidential
And he calls the second one: Scenario (b): The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Record that He Designated as Personal, and Is Further Incorrectly Instructed that, by Failing to Transfer the Charged Documents to NARA, the Defendant Made the Unreviewable Decision to Designate the Charged Documents as Personal
https://post.news/@/MuellerSheWrote/2eZgj7qcIK8i6W...-------------------------------------------------
Kyle Cheney
JUST IN: Judge CANNON has rejected Trump's effort to dismiss his Florida charges based on the Presidential Records Act -- but also declined Jack Smith's demand that she reveal her legal thinking on the matter quickly, a demand she called "unjust."
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Leo Kovarsky
What I think we're likely to see now is INSTEAD some sort of motion for recusal, because Cannon has made clear that she's pursuing a course of action allowing her to shut this case down in a posture that is effectively unreviewable.
And DOJ will point to the refusal to declare the PRA instruction as one piece of a larger picture of bias, both real and perceived, that justifies recusal. Cannon will deny the recusal motion, and then Smith will appeal that.
So *that* is the way the refusal to specify the PRA instruction will find its way into an appellate proceeding at CA11, not because Smith "mandamuses" Cannon there on her failure to pre-specify the instructions.
And to be clear, Smith is quite likely to lose all of this. CA11 is unlikely to reassign the case on appeal. And good, practiced attorneys don't move for recusal lightly - contra what many less-practiced folks have suggested in media.
A motion to recuse is a hail mary that antagonizes the judge, making it that much harder to win if you lose the recusal fight. And you almost always lose the recusal fight.
That being said, Smith is certainly looking at Cannon's body language, and the content of this order, and thinking that he's probably got little left to lose. So recusal it will likely be.
This is all very depressing for people that want to see Trump held to account, but I'm just explaining how the world is; not how it should be.
However-----
Neal Katya
Judge Cannon just rejected Trump's bogus Presidential Records Act defense, but only for now. She has (weirdly and pointedly) refused to actually decide the issue, despite Jack Smith's warning that double jeopardy would then apply. I think Smith has no choice but to go to the 11th Circuit on mandamus. It's a tough standard, but it is met here.
Maybe Albaby can comment. :)
