Another Cannon Legal Error

In her latest ruling, Judge Cannon is wrong on the law, and I expect we'll hear about it from Special Counsel

A few days ago, I wrote a post about a ruling in which Judge Cannon struck a paragraph from the Jack Smith indictment of Trump in the Florida Espionage and Obstruction (documents) case. But there’s a legal error in the filing that Andrew Weissmann keenly pointed out on Twitter.

Trump moved to strike counts 34 and 36, which Cannon denied - but she says in her ruling that she will require the jury to be unanimous on the means by which the defendants committed the crimes. She writes as follows:

Although the specific pleading format employed (by Special Counsel) in Counts 34 and 36 appears somewhat unconventional and is susceptible to some confusion (no it doesn’t), the Court is ultimately satisfied that neither count requires dismissal on grounds of duplicity. Count 34 charges one Defendant (Trump) with violating 18 U.S.C. § 1512(b)(2)(A) by two different means: “hid[ing] and concealing documents from a federal grand jury” and “misl[eading] Trump Attorney 1 by moving boxes that conducted documents with classification markings” to prevent him from producing those documents to the grand jury.

It also charges another Defendant (Nauta) with violating the Section 1512(b)(2)(A) by a single means: misleading Trump Attorney 1 by moving boxes with classified materials to prevent him from producing them to the grand jury. Count 36 is structured similarly, all in the context of section 1519. In this way, neither count charges more than one crime—although given the pleading format, there likely will be a need for clear prompts (and separate verdict forms) requiring the jury to determine unanimously which means, if any, each of the two Defendants charged in Counts 34 and 36 used to commit the alleged crimes.

Here’s the problem with requiring unanimity from the jury on the “means.” You can’t require that. As we just saw in the Manhattan DA’s criminal conviction of Trump, the judge said the jury must be unanimous on the crime, but not the “means”. Meaning a third of the jury could have determined Trump falsified business records to cover up tax crimes, another third of the jury could determine he falsified business records to conceal the falsification of other business records, while the final third could determine Trump falsified business records to exceed the FEC campaign donation limits.

This is settled law with clear Supreme Court precedent, so she can’t require the jury to be unanimous on the means by which Trump broke the law.

Much like Jack Smith filed a motion for reconsideration when Cannon ruled to unseal witness lists, citing a “clear legal error” and potential “manifest injustice”, I would keep an eye out for Special Counsel to address this clear error of law as well.