What Did Judge Cannon Just Do?

Yes, she indefinitely postponed the Espionage and Obstruction case in Florida, but that's not the worst part. Not by a mile.

Last night, Judge Aileen Cannon made official what most of us have long understood - the federal case against Donald for willfully retaining national defense information and then obstructing his retention, and then obstructing his obstruction of the retention - is indefinitely postponed.

But that headline detracts from the rest of the filing.

First, it’s important to note that on April 10th - less than two weeks before the start of Donald’s criminal election interference trial in New York - Judge Cannon set a CIPA §5 deadline for May 9th. Donald had requested a June deadline, and Jack Smith had requested a March deadline. Cannon split the baby and calendared a May 9th deadline. When she set that deadline on April 10th, she was well aware of the pending Manhattan proceedings. Donald and his co-defendants made all sorts of excuses to push the May 9th date into the future, and we all thought “there’s no way she’d go back on herself.” Then on May 6th, just three days ahead of the deadline, she entered a paperless order on the docket temporarily suspending the May 9th deadline. No reason given. And our “she’ll never do that” become “oh my god she did that.” But nothing could prepare us for the order she issued the next day.

In it, she lays out her new schedule for pre-trail deadlines before she even gets to the part where she indefinitely suspends the trial date. Here’s what that calendar looks like:

May 8: Sealed telephone hearing on Grand Jury matters

May 20: Resolution of pending seal requests

May 22 (morning): Non-evidentiary hearing on Nauta’s motion to dismiss based on vindictive and selective prosecution

May 22 (afternoon): Non-evidentiary hearing on defendants’ motion to dismiss for insufficient pleading

May 31: Discovery status report

June 10: Defendants’ expert disclosure

June 17: CIPA §5 deadline for all defendants

June 21: Non-Evidentiary Hearing on motion to dismiss based on unlawful appointment and funding of Special Counsel

June 24 - 26: Partial Evidentiary Hearing on Defendants’ Consolidated Motions to Compel Discovery and to Define Scope of Prosecution Team

July 9: Special Counsel deadline for supplemental expert disclosures

July 10: Special Counsel CIPA §6(a) and defendants’ reciprocal discovery

July 19: Defendants’ speedy trial report (lol)

July 22: Status conference and CIPA §4 hearing (ex parte)

After laying out that schedule of totally unnecessary and potentially damaging hearings, she indefinitely postpones the trial:

“The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice.”

Again, we all saw this coming. There was no way this trial was going to start 12 days from now, and many of us have long assumed this case wasn’t going to go to trial before the 2024 election. She even says that our right to a timely resolution is outweighed by the meaningless delay tactics deployed by Donald and his minions, and subsequently assisted by Cannon’s ridiculous need for litigation and hearings for every single motion to dismiss. She writes: “Finally, the Court has evaluated the statutory factors set forth in the Speedy Trial Act including the public’s interest in the efficient administration of justice. Upon such review, the Court finds that the ends of justice served by this continuance, through the last deadline specified in this Order, July 22, 2024, outweigh the best interest of the public and Defendants in a speedy trial.”

What she is effectively saying is that Donald’s delay of these proceedings is more important than speedy justice. She also tolled the speedy trial clock until at least the end of her calendar - July 22nd - meaning that on July 22nd, over a year since the indictment - not a single day will have passed on the speedy trial clock.

Because of Cannon’s actions, there are still 8 unresolved pre-trial motions, two of which are still on her secret docket that she herself created because she refuses to allow anything with redactions be filed until it’s litigated to death under seal. In a normal world, these motions to dismiss would be filed on the docket with appropriate redactions, considered, and granted or denied quickly, with no hearings. But Donald likes to attach hundreds of pages of exhibits on a secret docket, litigate the proper redactions, and request hearings about them which Cannon loves to grant. And the item in the new calendar above that stands out to me the most is the three-day hearing on the scope of the prosecution team.

This has to do with discovery - that part of the proceeding where the government has to hand over all the documents and evidence in its control that it might use at trial. Think My Cousin Vinny - “It’s called disclosure, you dickhead. He’s not allowed any surprises.” On Earth 1, the prosecution team consists of the Special Counsel’s office and the FBI - those who directly investigated the case. The government is obligated to hand over all it’s materials, but doesn’t have to hand over anything that’s not in its control or doesn’t exist. Donald has asked for documents from every executive branch agency, however, including all the intelligence agencies (who are victims in this case), the National Archives, and even agencies like the Department of Energy. He even asked for any positive thing any executive branch employee said about Donald in any document or communication. And he’s asked for “missing” and “deleted” January 6th evidence, which both judge McAfee and Judge Chutkan long ago ruled don’t exist. But Judge Cannon wants to have a three-day, partial evidentiary hearing on the scope of the prosecution team. That’s fucking bananas. The prosecution team is the prosecution team, and including intelligence agencies in the scope would set a dangerous precedent for discovery. Donald, Walt, and Carlos have had over 90% of relevant discovery since before last November - the original CIPA §5 deadline.

Many have asked when Jack Smith will “take it to the 11th circuit” to “ask for recusal.” So far, there’s nothing that’s been appealable. She almost stepped over the line when she ruled that witness names be unsealed - but Jack Smith wrote a motion for her to reconsider - which she did. She also came close when she asked the parties to write insane jury instructions based on a clear misinterpretation of the Presidential Records Act, but rathe than dare her to dismiss the charges, Jack Smith complied with her order, and she ultimately dismissed Donald’s motion to dismiss based on the PRA.

Jack Smith has one shot to go to the 11th circuit, and so far, I don’t think he’s got anything that would be a slam-dunk. You don’t want to go up and lose, so I suspect he’s waiting for an appropriate vehicle to take to the circuit court - perhaps a bad ruling on a CIPA motion that would endanger national security, or a ruling dismissing the case based on any one of the 8 motions left. But I suspect she’ll minimally expand the scope of the prosecution team - small enough not to warrant a smackdown by the 11th circuit, and then tie the case up in more discovery.

As a comparison, all these same motions were filed with Judge Chutkan, and all of them were dismissed except the motion to dismiss based on presidential immunity, which as we know was just argued before the Supreme Court April 25th. Oddly, Donald’s main argument for absolute immunity is that rogue prosecutors would have carte blanche in the future to go after former presidents without guardrails. But the layers and layers and layers of protection against the rogue prosecution against a former president are alive and well in his Florida proceeding.

There is one silver lining of removing the Florida case from the calendar. I thought for sure Cannon would set a new trial date for August - effectively blocking the January 6th trial should SCOTUS deny immunity AND allow the trial to proceed. But perhaps she knows something about that pending decision that we don’t.

I sure hope not.

Thanks so much for reading! Here is the full filing, where you can read for yourself that Cannon considers delay tactics and judicial games more important than our right to timely justice.

~AG