Says lawprof Stephen Gillers, interviewed in "Will the Judge in Trump’s Case Recuse Herself—or Be Forced To?/Federal law requires a judge to step away from a case in which her impartiality 'might reasonably be questioned'" (The New Yorker).
What’s a trial? A trial is a competition between two sides over which story is true, right?...
Well! I would say a criminal trial is a challenge to the prosecution to prove the charges beyond a reasonable doubt. It's not a level playing field analogous to a sporting event! The accused can do nothing and win!
The prosecution has a story, the defense has a story, and the jury is going to decide whom to believe.
It upsets me to hear a law professor say this about a criminal case. Where is the regard for the rights of the accused? Is Trump so powerful that he blots out what would otherwise be a firm commitment?
Gillers notes the distinct powers of the trial judge.
[Juries decide] based on information that the judge, applying the rules of evidence, allows the jury to hear... For example, in this case, a lot of the evidence, as we can glean from the indictment, will come from people, including lawyers, who heard Trump say something. So, right there, you have what’s called the hearsay problem. This is going to be critical to the prosecution’s case....
[A]fter the defense rests but before the case goes to the jury, the defense can make a motion for a directed verdict for acquittal... If the judge grants a directed verdict of acquittal before the case goes to the jury, that’s the end of it. That cannot be appealed....
Is it in the prosecution's interest to seek recusal? Gillers essentially says it is not:
The problem with going for recusal right off the bat is that you may lose in the circuit, and now you’re trying a case before a judge you’ve accused of being unable to appear impartial—and that’s not pleasant. So the government may decide that it’s just better to make the strongest case they can and hope that she behaves like a judge.
But the interview ends with a strong assertion that Cannon must recuse herself. She had another Trump case last year which decided in Trump's favor, and Gillers says she showed partiality, so, he says, he's "concerned that the partiality she expressed in her decisions last year creates a reasonable perception in the mind of a fair-minded person that she is not impartial—which is the test."
Who is the "fair-minded person" around here? Maybe nobody, but the judge who is accused of impartiality would be called on to imagine these characters and form an opinion about what they think about her. In my view, we're already too deeply into things that make people think this is politicized, so the better path is not to wade further in but to stop and pretend to believe what works well enough when everything else is falling apart: that judges are judges.
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100 comments:
Who whom.
It's as good a rule as "follow the money."
Perhaps a shorter paraphrasing, if the government’s case is so weak that its success is dependent on the government appointed Judge, perhaps the problem is the case (or the government bringing the case).
Good points all. Thanks, Ann.
“ That cannot be appealed.... ”
Is that true? Can the government not appeal if a judge grants that kind of motion?
In the interest of impartiality, only Biden voters can sit on the jury. Of course, after DeSantis got 60% of the vote last year, the pool is limited to party hacks.
Judge Cannon was born in Columbia. Her mother fled Cuba. Dad from Indiana.
The Meade connection requires recusal.
Seriously, she knows of political prosecutions.
What we need is an Obama appointed judge. right?
For example, in this case, a lot of the evidence, as we can glean from the indictment, will come from people, including lawyers, who heard Trump say something. So, right there, you have what’s called the hearsay problem.
So it's a weak case.
It occurs to me that this kind of thing is battle space prep. It offers the judge a foretaste of the kind of reputation trashing she will be in for if things don't go a certain way. It's an attempt to pressure the judge to, at the very least, overcompensate in favor of the prosecution.
Who appointed the judge should be irrelevant. It's sad that more and more we make a big deal about that. The two groups who carry the bulk of the blame are political activists and...I could almost put this in a macro, it comes up so often in discussions of fault...the media.
Sure, if there is a real reason to be concerned about her impartiality, she should recuse. But if the lawyers making the mandamus motion can't do better than "she was appointed by Trump," those lawyers should be sanctioned.
The Left will try to destroy her and her family. That’s what they do.
Her husband is a restaurant executive. His restaurants will be boycotted. Or worse.
The campaign starts tomorrow.
We're destroying the judiciary by making it so politicized. That, and there are judges out there who don't know their own boundaries and are right out there with their political leanings. We 'hire' Supreme Court justices based, not on their adherence to the rule of law, to their judicial objectivity, but on their political leanings. We're a mess.
I think of US District Judge Emmet Sullivan, who's had a curious hand on the scales of justice in recent times. He certainly seemed to have it out for Trump and any of his people.
Judges have homes and families and friends. They have lives that can be turned upside down.
The Regime has an army of angry, crazy people on tap. That mob is who these charges of impartiality, of corruption essentially, are being directed at.
Larry Tribe is already screaming about her.
The Jewish World Review has an excellent article on this subject. MSNBC was going nuts crying about how the judge should recuse herself. They really hate that “equal before the law” thing that Jack Smith used in his brief comedy act on Friday.
Many many people have “reasonably questions” about the J6 judge’s impartiality. Those proceedings similar to how Michael Flynn treatment went have the added benefit of actually being questionable and producing unreasonable outcomes. How strange now to consider such things in a case where no actual ruling has happened yet. Pseudo news substituted for actual news again. Opinions on opinions free of facts to debate.
Why is she making excuses before the trial even begins? What does she know that she isn't telling us?
has CJ Roberts opined on the matter of partiality and recusals?
Democrats *always* end up in a thugocracy. At best. Althouse I guess has never noticed this slope the left slides upon. She’s surprised and distressed to read that a progressive lefty would seemingly have forgot about the assumption of innocence.
This is why I always vote Republican. Because as annoying and naive and hackish and partisan and blind and foolish and feckless as they are, they aren’t thugs.
I would add to my previous post, Nixon felt the full onslaught of thuggishness from the Kennedys and his takeaway was to do the same. Hence the worst of his Watergate reaction. But it wasn’t in his bones and he found out to fake it is to lose to these assholes.
Recusal Civility BS.
Prediction. The Left will figure out where Judge Cannon lives and will picket her house. This is a lock. Bet the farm.
We're also entitled to consider that Gillers is acting out of political motivation. His suggestion that a judge should be barred from hearing all cases involving a party because of reversal in one case is unprecedented. Moreover, it's inherently one-sided -- if this judge had ruled in favor of the government in the other car and been reversed, I strongly doubt that Gillers would say she has to recuse herself from all cases involving the government.
By the way, I think Gillers gets the law of evidence wrong. Under Federal Rule of Evidence 801(d)(2), out-of-court statements by a party are not hearsay. I'm not a criminal lawyer, but I think that rule would apply here.
When Trump DARED to accuse an Obama appointed judge of being prejudiced against him and his policies, lefties demanded a fainting couch. But of course, those feelings do not apply to Republican judges.
The argument for recusal in this case is an argument about the appearance of partiality, but the appearance of partiality is baked into this case. Can anyone suggest how to unbake it?
I don't think there is a way. But this isn't a unique situation -- there's lots of cases where prominent political figures "prejudge" a case and call for punishment before the trial occurs. And the people convicted under those circumstances can always claim the trial was rigged (unless, I guess, somehow they can get sued for slander for claiming the factual findings at trial were erroneous).
All that said, it seems like DOJ is doing what they can. As far as I can tell, he isn't implicated by any of the sleazy communications that came out in the Horowitz report. They've released evidence.
The "bias" here, though, is selective prosecution, as opposed to Trump actually being innocent (we've known all along that an ordinary government worker caught with government files at home like Trump . . or Pence, or Clinton II, or Biden, would go straight to jail). That's something you see in Korea all the time, where the outgoing president's family and associates all get arrested once the opposition party gets in power again. That was escalated under leftist Moon Jaein (who had both his immediate predecessor, Park Geunhye, and her predecessor from the same party, Lee Myungbak, arrested and charged). Were they guilty of bribery? I mean, almost certainly yes! But so is everyone else in Korean politics. The obvious politicisation of prosecutorial decisionmaking is just the way things are in Korea. And the way things are going to be in the US for the forseeable future. Prosecutors will have to earn back trust over time -- something I doubt they will even admit they need to do at this point -- but there's no easy fix. Cooperation and transparency with congressional oversight committees will help, but not immediately.
And there's no good way to put in effective controls on prosecutorial charging decisions. If someone had come up with something states would already have implemented it to try and deal with (alleged) racial disparities in charging decisions. Instead, all we get are these simplistic progressive attempts to decriminalise certain crimes or have their prosecutors decline prosecution across the board for certain crimes.
“Who is the "fair-minded person" around here?”
There were fair-minded people who questioned cannon’s judgment…
“The three-judge 11th Circuit panel said Cannon lacked the authority to grant Trump's request for a special master made in a lawsuit he filed two weeks after FBI agents carried out a court-approved Aug. 8 search at his Mar-a-Lago estate in Palm Beach. It also overturned Cannon's decision to bar investigators from accessing most of the records pending the review and threw out Trump's suit.”
“The 11th Circuit said that while a search warrant for a former president's property is "extraordinary," it did not give "the judiciary license to interfere in an ongoing investigation." The court also said Trump did not prove there was a "callous disregard" for his constitutional rights in the search of his property, one of the few reasons a court can intervene in an ongoing investigation.
"The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant," the panel wrote. "Nor can we write a rule that allows only former presidents to do so."
The 11th Circuit panel consisted of Judge William Pryor, appointed by Republican former President George W. Bush, as well as two of Trump's own appointees, Judges Andrew Brasher and Britt Grant.“
"For example, in this case, a lot of the evidence, as we can glean from the indictment, will come from people, including lawyers,, who heard Trump say something"
Did Trump waive attorney-client privilege or something?
"If the random selection had been a Biden appointee, would that judge also have to recuse herself/himself?"
Ha, ha you're killing me with this dry, sarcastic humor.
It isn't just Gillers that says Cannon showed partiality toward Trump in the hearings last year. She made some dubious rulings that pretty clearly seemed intended to put her thumb on the scales in Trump's favor, and they were struck down definitively on appeal. It's disingenuous to say that people are saying she should recuse simply because she's a Trump appointee; she's a Trump appointee who's already made bad rulings in Trump's favor in this specific matter.
Gillers, "and hope that she behaves like a judge."
What a rotten thing to say.
Ann, per usual, nails it here, "the public doesn't trust the impartiality of anything here. That's the problem with the pursuit of political goals through the criminal process..."
There's not going to be any trial, Ann.
Wake up.
Just move the case to New York City and be done with it. Then there will be no concern about partiality. Just hang the sonofabitch
Every place pressure can be applied, it will be applied. This is how it is done.
In fairness, this applies to how Trump does business as well. Nobody is so high and mighty as to concede submission to the traditional role of the justice system. It must, like everything else, be subject to the control of the wishes and desires of those who are in charge. We can see the outcome to determine just who is 'akshually' in charge at any time.
The only question is who will control? Checks? Balances? Rule of law?
That's history. We're on the other side of that now. Can we go back? Were we ever there?
Perhaps it takes a parallax view of history to see things clearly.
Bring in a judge from a Latin American country. They have experience with such political prosecutions.
I don't have an answer to the question, "Can anyone suggest how to unbake it?". I thought Trump's lawyers raised a very cogent summary of events which should have simply led to a DNI/Congressional revamp of the handling of presidential papers, classified or not. This never should have come to a criminal indictment to begin with if cooler heads had prevailed, of which there were a few it appears.
The Biden-DOJ-IC block thinks that jailing Trump will resolve their fears of being put in jail themselves for their insurrectionist-coup activities. It won't. They're only making matters worse for themselves. The sooner they realize this, the better.
Also, judges have to reprimand prosecutors that behave with little adherence to the Constitution, or judicial rules and norms. The systems are in place for a reason. If she does reprimand them for the illegal search warrant, for instance, it's not due to partiality. It's because it was blatantly un-Constitutional.
Every Article III judge is going to have been appointed by a President but the fitness for office is not left at that, there is also the need for Senate confirmation, which Cannon appears to have gotten that easily enough, something like a 2-1 margin in favor of her confirmation by those voting with a 1/4 of the Senate not voting. There doesn't seem to have been anything remarkable about her confirmation process, where was Mr. Law Professor then?
Trying to force her to recuse herself smacks of judge shopping and also risky in that the next choice might be even less favorable, depending on one's point of view.
The most likely outcome if the case goes to a jury is a hung jury. In terms of political gamesmanship, Democrats should want a Republican-appointed judge they can blame the outcome on (appointed by Donald Trump would be best) and Republicans should want a Democrat-appointed judge so they can claim maximum exoneration. Judge Aileen Cannon should recuse, but since the Great Magadonian would view that as treason, she probably won’t.
I think Gillers is wrong if he thinks the “hearsay problem” will be the biggest evidentiary issue in the case. It will be attorney-client privilege. In terms of judicial ethics, since attorney-client privilege was at the heart of what Judge Cannon did last fall, she should recuse because of the appearance that she has prejudged those issues.
In any event,I think any expectations for Donald Trump to go to prison on these counts are overly inflated. He doesn’t realistically face a 100-year sentence based on what is in the indictment. If convicted, I would predict a fine, possibly a suspended sentence. Is it worth bringing this case? I think it is. Only prosecuting underlings when it comes to our Presidents and former Presidents is grossly unfair.
"If the random selection had been a Biden appointee, would that judge also have to recuse herself/himself?"
Of course not. For the left, the rules are always "Heads I win, tails you lose."
Leftists are garbage people.
"Can anyone suggest how to unbake it?"
In the instance at hand, no. But for the future, yes. Decrease the value of the Prize.
Decrease the poser of the Feral Government. This "promote the general Welfare" thing has WAY overstepped the "secure the Blessings of Liberty" idea and done serious damage to "the common defense" and "establish Justice" - yes, even "domestic Tranquility" seems in a slide.
Maybe a Constitutional Amendment to replace "promote the general Welfare" with "Don't f!@#$$#@! Debase the Coinage."
I predict the prosecution will not only ask for the judge be recused, but that the trial itself be moved to D.C. because that is where the initial alleged violations occurred- Trump removing "classified" documents from the White House.
See Emmett Sullivan. No judges are trusted anymore. This is what our corrupt Justice system and especially the FBI have done.
It just shows that democrats are a LOT BETTER attaining political power than republicans. Their judges stay bought.
"For example, in this case, a lot of the evidence, as we can glean from the indictment, will come from people, including lawyers, who heard Trump say something. So, right there, you have what’s called the hearsay problem."
Huh? Anything a defendant might have said, assuming it meets the tests of materiality and relevance, is admissible into evidence. It is technically hearsay, under that legal definition, but is of course admissible as a hearsay exception.
The problem is Judge Cannon has a record already of supporting Trump in a way that few other Trump appointed judges have. And she was rebuked for it by three other judges appointed by Republicans - two of which were appointed by Trump. So Judge Cannon definitely deserves this scrutiny.
Balfegor said...(we've known all along that an ordinary government worker caught with government files at home like Trump.... . or Pence, or Clinton II, or Biden, would go straight to jail)
Trump was not an ordinary government worker. He was the President.
What unelected bureaucrat is the President supposed to ask permission from?
It is not possible to find a judge without the potential for bias when all judges go through a politically motivated confirmation process, and the case is the most politically motivated in our lifetime, if not the entire history of the United States. The only question is whether the judge selected will try to be impartial, will be obviously biased, or will be biased but will pretend to be impartial.
As Matt pointed out she is on record as being biased in Trump's favor (i.e. 5th avenue decision from last year). I think she will probably fly right this time around.
But it would be smarter to recuse because of all the second guessing. In fact, Trump might get upset that she's sucking attention away from him and his fund-raising efforts.
So, she agreed with him on one issue, but that is not evidence that she will support him on other issues. To believe otherwise is to deny her dignity and agency, and reduce her to a semi-automaton, interchangeable, exchangeable... disposable. We should be wary of anyone exercising liberal license to indulge critical diversity theory... dogma.
I suggest that Trump may be a witch, a probable warlock, once a baby. Hang him, burn him, abort the "burden". #HateTumpsLove
"Huh? Anything a defendant might have said, assuming it meets the tests of materiality and relevance, is admissible into evidence. It is technically hearsay, under that legal definition, but is of course admissible as a hearsay exception."
Yes, but there needs to be evidence that the defendant said it, and that may be hearsay. If you have a witness that heard him directly, then it's not hearsay. It's an admission of a party opponent.
FRE 801(d) Statements That Are Not Hearsay.
https://www.law.cornell.edu/rules/fre/rule_801
@Tank
I have a heightened standard for the first comment in a thread. It can be distracting and I can't understand what point you are trying to make. Care to explain?
I hope the judge is fair and impartial - most judges are. [Still one of my favorite trial judges was Judge William G. Young.] But even as a Trump detractor, I acknowledge the burden is on the state and a good judge will keep it there, no matter if the defendant is Trump or Biden.
And I agree with Left Bank, above, the Attorney-Client issues in this case are huge and could get a conviction overturned on appeal. Gillers should be talking about this instead of trying to impeach Judge Cannon.
The funny thing is that Gillers is on the far-left of the political spectrum. I've followed his career in the media - he always backs the "D," never the "R" - and his few political donations are all for the far-left candidates. Mark Green, Hakeem Jeffries, Raphael Warnock, etc.
https://www.opensecrets.org/search?q=stephen+gillers&type=donors
Democrats only want Trump haters on this... Judge, prosecutors, jury, etc.. that will, in their minds, make it a 'fair' trial.
"Yes, but there needs to be evidence that the defendant said it, and that may be hearsay. If you have a witness that heard him directly, then it's not hearsay. It's an admission of a party opponent."
I think Gillers ought to talk about attorney-client privilege. Maybe the situation is that there's someone with second-hand knowledge that Trump said something, and their testimony about it would be hearsay, and the person with first-hand knowledge will make a claim of privilege.
Is it that we have a recording of Trump saying something and Gillers is talking about testimony that would be needed to authenticate the recording?
due process, thats just crazy, thats what the special master entailed, removing it allowed this sham letter ot assistance to be crafted,
Re: Bob Boyd:
Trump was not an ordinary government worker. He was the President.
What unelected bureaucrat is the President supposed to ask permission from?
Yes, he *was*. But he stopped being the President in January 2021. At that point, he's just an ordinary civilian in possession of government property.
wouldn't Trump's demand for recusal be at least as strong as the prosecution's demand that Cannon recuse herself?
Oh, the "randomly assigned" Biden judge would be a minority woman.
Anything Trump might say would only make him a racist and a sexist.
The test comes after the fact- are the actions reasonable given the situation? Would another apply the laws in the same manner and would they be considered reasonable?
Part of the trouble here is 'impartial' is meant to mean in the favor of progressive opinion and favoring Democrats. We'll learn more about their penumbras and emanations used to manipulate that idea later.
@AA
Who is doing what to Whom is so often highly enlightening. This case only exists because the man’s name is Trump. The possible bias of the Judge is only so problematic to the left because the man’s name is Trump.
It's a good argument for the popular election of judges.
Yes, he *was*. But he stopped being the President in January 2021. At that point, he's just an ordinary civilian in possession of government property.
6/12/23, 10:39 AM
And Hillary, Biden and Pence were all just ordinary civilians in possession of government property and also should be indicted if this were a fair country...but we all know it is not. It is a GET TRUMP at all costs country...by both sides, and it is destroying us.
"Can anyone explain to me why Hillary's bleaching of server with Bleachbit and destruction of phones literally with a hammer does not constitute obstruction of justice, while moving boxes within Mar-A-Lago does? This is hard for non-Americans to understand." - Stephan McIntyre
"At that point, he's just an ordinary civilian in possession of government property."
Which was freely given to him by his President former self at the time he was a president.
Joe Biden was never president when he stored classified documents in his garage in cardboard boxes at the time his son, the crackhead, was writing surprisingly astute analyses of the politics situations in various countries for his paying clients. Almost as if Hunter had access to classified briefings on those countries somehow.
But that's "whataboutism," isn't it.
"I hope the judge is fair and impartial - most judges are. [Still one of my favorite trial judges was Judge William G. Young.] But even as a Trump detractor,"
Who could have seen that coming?
The judge should dismiss the case out of hand.
The judiciary cannot determine what is or is not classified by the executive. That is strictly the purview of the president.
Look, Gillers is arguing in bad faith. He'd be saying the exact OPPOSITE if this Judge hated Trump and was an Obama appointee. I'm still trying to understand how the DC Federal Judge (who does hate Trump) could order the Trump lawyer to hand over his notes in violation of Attoney-Client privilage.
But I guess that was just an objective, unbiased judge. Unlike Judge Cannon.
These Federal judges and allowed to act like Kings and Emperors and do anything they wish, and the only check is ANOTHER Federal Judge. Look at how that crazy Judge tried to be the prosecutor in the General Flynn case - and even refused to accept Trump's pardon of Flynn! Or the bizare and insane sentences and rulings against the J6 defendents.
Something should be done by Congress, since the Appellate Courts are created by Congress (see Constitution). But I guess as long as the Judicial overreach helps the Liberal/left nothing will be done.
Matt, judges get reversed on appeal all the time.
If she had ruled for the government and been reversed, would you say she has to recuse herself from all other cases in which the government is a party?
Just one more thing. Look at every Liberal/Leftwing federal judge and you will see that 90 percent of them come down on the Leftwing/Pro-Democrat side of a case 90 percent of the time. Like Gillers, they are "results oriented".
The use the law as a political weapon. The sooner the Center-right understands and acts on this the better.
"Can anyone suggest how to unbake it?"
At this point, I think the best-case scenario is a thermonuclear attack on Washington DC. Just sail it up the Potomac, so no one really knows where it came from. Just one of those mysteries ...
"It upsets me to hear a law professor say this about a criminal case. Where is the regard for the rights of the accused?"
Upsets but doesn't surprise, right? After Tribe's crackup nothing law professors say against Trump can be surprising.
the best-case scenario is a thermonuclear attack on Washington DC
Or a hypersonic boom in the District of Corruption. The Chinese, Russians, Serbians, Libyans, South Africans, Ukrainians et al certainly have cause to carry out retributive change.
Well, maybe not the Chinese. Labor and environmental arbitrage, and Democrat redistribution of national secrets, have been a good fortune for them, some, select Chinese.
What rankles conservatives the most about liberal judges and the lengths that liberals go to defend them is not that the judges are applying a particular philosophy to the pattern of facts and law in their decisions, at least for the most part since conservatives recognize that a consistent philosophy of decision making is at least going to appear in a judge's body of work, and is likely a good thing to have. What rankles conservatives is the insistence that liberal judges reach decisions that any good, upright, intelligent person would understand to be correct, and that the only way to reach a different decision, or disagree with the decision, is to apply a completely ideological determinism to the situation.
The argument for recusal in this case is an argument about the appearance of partiality, but the appearance of partiality is baked into this case. Can anyone suggest how to unbake it?
Cruel Neutrality. Quit screaming 'Obama judge' or 'Trump judge', and start analysing the case and the decisions that are likely to be made in terms of law and facts.
The judiciary cannot determine what is or is not classified by the executive. That is strictly the purview of the president.
The only problem with this "logic" is that apparently there is a tape (and another instance of the same behavior) where Trump tells someone that the documents are still classified, and that as a former president he cannot declassify them.
Which blows out of the water the dubious argument that Trump can declassify documents without some formal procedure. Apparently, even he is not stupid enough to believe that nonsense (unlike you and Bruce Hayden, who is a lawyer and should know better). And unlike Bruce Hayden, even Trump's lawyers are unwilling to make that argument.
I predict the prosecution will not only ask for the judge be recused, but that the trial itself be moved to D.C. because that is where the initial alleged violations occurred- Trump removing "classified" documents from the White House.
The issue of course is that he was President when he left the White House. I don't think the DOJ prosecutors want to give that hook to hang.
The argument I hear from twitter is that the DOJ will argue that the DC circuit "understands" the nature of classified material better than some podunk judge in Florida. Basically the DC circuit is the "elite" circuit for all that icky classified stuff we can't show normal human beings.
Might as well just move to secret courts.
Only Democrat partiality is permitted. Everybody knows that.
"There were fair-minded people who questioned cannon’s judgment…"
LOL. The Special Counsel in this case has previously been slapped down 9-0 by the Supreme Court for overly broad and aggressive interpretations of statutes in the political prosecution of a Republican Governor. But by the time they threw the case out, the guy had already spent two years in jail and $27 million defending himself, which was the whole point of the prosecution. This is why he was chosen for this witch hunt.
I think the suggestion to bring in a south American judge is a good one. After all, an American judge might get the desired verdict wrong. Political prosecutions can be tricky. Maybe an old Bolshevik could be found.
I think we can all agree our judges are fair and impartial and their judges are shameless corrupt hacks.
Tom T.:
You are correct. The Federal Rules of Evidence (and the evidnetiary rule or statutes of some states) follow the McCormick approach, which is that out-of-court statements by a party opponent, including a defendant, are not hearsay, they are admissions (or statements) of the party opponent admissible for all purposes (distinguish these from admissions against interest, which are, generally, admissible under a hearsay exclusion exception, and not limited to the statements of a party opponent).
Some states follow the Morgan approach (criticized by McCormick), which is to treat those statements as hearsay but then admit them under a hearsay exclusion exception.
Both McCormick and Morgan got, however, to the same basic ultimate result.
"The court files related to Trump’s lawsuit seeking a special master offer far more info than Smith’s indictment. Be wary of those commenting on classified docs case who didn’t follow that lawsuit or aren’t getting up to speed on the timeline and events.
To me, Trump’s biggest mistake was not fighting the ridiculously broad subpoena for all documents with “classified markings.” (Another Beryl Howell dandy.) NO president would’ve willingly complied the way Trump did (of course no former president would’ve faced such a subpoena.)
In less than a month, he and his team conducted searches for request docs. Trump delayed moving to Bedminster for the summer to greet Jay Bratt (DOJ counterintelligence chief) and FBI investigators at MAL. He offered his cooperation. They produced more documents.
Were mistakes made? Probably. But Smith’s accusation that there was a “willful” attempt to hide national defense docs (not part of May 2022 subpoena BTW) is false on its face.
And Smith’s investigative coup is WHOLLY reliant on Obama judge Beryl Howell, which is why Garland then Smith conducted all its work in DC then switched to FLA at the last minute.
Anyone insisting this process and indictment are legit is either uninformed or spinning for political purposes."
https://twitter.com/julie_kelly2/status/1668244488517570560?cxt=HHwWgMC-icHh5aYuAAAA
Standard operating procedure for the Left. Impartiality is never consideration when it might affect a Leftist issue. I just assume everything is corrupt now. If hypocrisy was a cryptocoin, American would have surplus in our Treasury, not a $32 trillion debt.
"The argument I hear from twitter is that the DOJ will argue that the DC circuit "understands" the nature of classified material better than some podunk judge in Florida."
So we're back to bitter clingers and deplorables in flyover country. Good to know.
"Might as well just move to secret courts."
Of course, since those amusing rustics are too stupid to have the first clue how to run their lives without direction from the elites in DC, don't you know?
BIII Zhang said...
"There's not going to be any trial, Ann."
My thought as well. The judiciary is trying to usurp a privilege that rightfully is the executives. There is no case.
Freder Frederson said...
"The judiciary cannot determine what is or is not classified by the executive. That is strictly the purview of the president.
The only problem with this "logic" is that apparently there is a tape (and another instance of the same behavior) where Trump tells someone that the documents are still classified, and that as a former president he cannot declassify them."
No it doesn't since the information belonged to the executive.
It's so cute when leftists pretend to be concerned about judicial impartiality.
Thanks, Tank
The partisan DOJ, and esp Jeff Bratt, who signed the indictment (and heads the Counterintelligence and Export Section, of the National Security Division of the DOJ - which gives away who is driving this - they were the DOJ org involved in Crossfire Hurricane, RussiaGate, and 4 fraudulent FISA warrants on Carter Page), ran the MAL raid from DOJ HQ, and acted in bad faith with Trump’s lawyers, are extremely worried that Judge Cannon will run the trial. Once Jeopardy attaches (with the swearing in of the jury), there are three possible outcomes: Guilty, Innocent, and Mistrial. Once they get a Not Guilty, game is over, while Guilty can be appealed.
The weaknesses I see with the charges is that the serious ones, esp Espionage Act and §1001 Obstruction of Justice, require both Intent and Materiality. Bratt seems to be trying to finesse both. Not surprising, since his DOJ section was the one pushing the LawFare misinterpretation of that §1001 Obstruction statute that read both of those elements out of the statute. Not going to happen with Cannon on the bench trying the case.
The letter from Trump’s attorneys to the House oversight committee pointed out the DOJ irregularities, including those of Bratt, that essentially forced the problems. Put simply, Trump’s attorneys tried to work with Bratt, and he stiffed them. He pushed deadlines, refused their request for rolling discovery, etc, making sure that mistakes would be made. That is one of the things that he really doesn’t want the jury to see, and I think would, if Judge Cannon tries the case. Regardless of Materiality, the DOJ pushing so hard, and refusing to compromise their document demands, goes a long way to negating the Intent requirement in all the charges. Besides, tey weren’t made by Trump himself, but mostly by his attorneys.
Also of interest, during past Administrations, notably those of Obama, GW Bush, and Clinton, NARA (archives) worked with the outgoing President to collect their records, store them in a secure location, and have the ODNI (and not FBI) review them for classified documents. This service was denied Trump. Moreover, the FJB WH ordered NARA to cooperate fully with the FBI, which meant doing whatever their Counterintelligence Division (sister org to Bratt’s Counterintelligence Branch) instructed them to do. Trump was left with have GSA box and ship his documents to MAL. From the location of documents marked classified in those boxes, it’s obvious that no one had reviewed the contents of those boxes, until Bratt got involved with the case. Instead of Trump Intentionally removing select classified documents, what were removed were documents related to conversations he was having at the time, when aids cleared everything from his desk and boxed it. There goes the Intent requirement.
Hunter Biden's tax payer funded Hooker said...
What we need is an Obama appointed judge. right?
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to fully accord Trump due process we also need a Comey approved reasonable prosecutor!
I don't get all this serious brain cell twisting by y'all
mockery is the only response appropriate to this.
Judge Cannon was just slimed by Chris Hayes on MSNBC.
I stand by my prediction that the Left will picket her home and her husband’s business.
can the Judge go ballistic and !pro-se? throw out the case?
in the first minute after gavel=bang kaboom?
Michael K said...
I think the suggestion to bring in a south American judge is a good one. After all, an American judge might get the desired verdict wrong. Political prosecutions can be tricky. Maybe an old Bolshevik could be found.
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wikipedia tells me ...
... Garland previously served as a U.S. circuit judge of the U.S. Court of Appeals for the District of Columbia Circuit from 1997 to 2021...
I vaguely recall [District of] Columbia is somewhere in South America
"But the interview ends with a strong assertion that Cannon must recuse herself. She had another Trump case last year which decided in Trump's favor, and Gillers says she showed partiality, so, he says, he's "concerned that the partiality she expressed in her decisions last year creates a reasonable perception in the mind of a fair-minded person that she is not impartial—which is the test."
Perception isn't reality. Gillers says she showed partiality - Gillers cites no facts - so if the facts of the other case don't support his assertion, there is no partiality.
Hey Freder your problem with the damning tape is that there was not a document as described found at MAL. Hard to say he possessed a document if Trump doesn’t actually have such a document. Even if they broke attorney client privilege and flipped Meadows where’s the evidence? I assume little details like evidence matter, even to Trump appointed judges right?
So I guess you could argue that the president who, according to your side, lies more than any other person alive, was actually this ONE TIME telling the truth even though no evidence exists. Sounds weak. Better hope the hack Georgia prosecutor does better with Perfect Phone Call The Sequel. There’s still hope y’all can railroad the man.
Gillers:
"Given the importance of this case, perhaps the most important criminal trial in the history of the United States—certainly the most watched—and in light of what Judge Cannon did in the search-and-seizure case last year, I think she must step aside. I think she must grant a motion to recuse herself, unless she does it before a motion is even made.
And the reason I say that is that she treated Trump as special, or, to put it another way, she was partial to Trump as a former President, which should not have any influence on the way this trial is conducted. I’m concerned that the partiality she expressed in her decisions last year creates a reasonable perception in the mind of a fair-minded person that she is not impartial—which is the test. Her behavior when she was ruling on the search-and-seizure case creates a reason to doubt her impartiality."
In other words, according to Gillers, Cannon's incorrect ruling in a prior case *requires* her recusal ("she must step aside"). He's demonstrably wrong: judicial bias must be *extrajudicial*, that is, extreme exceptions aside, something other rulings or comments made in a case. A 1993 11th Circuit case, US v Chandler, 996 F. 2d 1073, succinctly illustrates the point: "we have held that a "judge's bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case." McWhorter, 906 F.2d at 678. Likewise, a judge's rulings in a related case may not ordinarily serve as the basis for recusal. Id. There is an exception to this general rule when the movant demonstrates pervasive bias and prejudice. Id."
If Gillers has any evidence of either "personal and extrajudicial," or "pervasive" bias infecting Judge Cannon, he's keeping it to himself. Cannon is not only *not* required to recuse herself, there's not even a seemingly arguable basis for a recusal motion. If anyone's bias is manifest, it's Gillers'.
As to the first comment, Tank's "Who Whom," I took it to refer to the Leninist formulation, explained by wikipedia this way, https://en.wikipedia.org/wiki/Who,_whom%3F#:~:text=Who%2C%20whom%3F%20(Russian%3A,by%20Vladimir%20Lenin%20in%201921.:
"Who, whom? (Russian: кто кого?, kto kogo?; Russian pronunciation: [kto.kɐˈvo]) is a Bolshevist principle or slogan which was formulated by Vladimir Lenin in 1921.
Lenin is supposed to have stated at the second All-Russian Congress of Political Education Departments, on 17 October 1921,
Весь вопрос—кто кого опередит?
"The whole question is—who will overtake whom?"
Leon Trotsky used the shortened "who whom" formulation in his 1925 article, "Towards Capitalism or Towards Socialism?"[1]
The shortened form was invoked by Joseph Stalin in 1929, in a speech to the Central Committee of the Communist Party of the Soviet Union, which also gave the formula its "aura of hard-line coercion" (while Lenin's phrase indicated a willingness to embrace economic competition):
"The fact is, we live according to Lenin's formula: Kto–kogo?: will we knock them, the capitalists, flat and give them (as Lenin expresses it) the final, decisive battle, or will they knock us flat?"[2]
It came to be used as a formula describing the inevitability of class struggle, i.e. who (which of two antagonists) will dominate the other. In this view, all compromises and promises between enemies are just expedients – tactical manoeuvres in the struggle for mastery.[3][4]"
I suspect the government has a bigger problem. They are in Florida, where the jurors are going to be older and remember that the US is not a banana republic, and that we have a tradition of not going after ex-President's or leading opposition figures. There is going to be strong sentiment against the government from the beginning. People are going to wonder just why it is that a President cannot declassify documents while President, when he is the ultimate arbiter on the executive side. This case is likely to end very badly for the government.....and lead to terrible lawfare if Trump were to be elected. Because if I were Trump, I would start at the top and go down about 5 levels as I ordered an investigation into the previous administration AND the bureaucratic state. Lifetime civil servants would probably not do well in hard time.
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