Monday, September 05, 2022

So It Turns Out I Gave That Florida Judge Way Too Much Benefit Of The Doubt

When in doubt yourself, defer to the knowledge of a law professor; preferably a good one.

My doubt now is whether this person should be sitting on the federal bench:

"If this holds up, it's going to require the minting of a whole new area of law for the scope and boundaries of a former Pres's executive priv interests. How the hell is a Special Master supposed to call balls and strikes? This could be huge delays. I think DOJ needs to appeal," wrote Litman. "Cannon's opinion acknowledges that Rule 41 is reserved for exceptional circumstances and must be exercised w/ caution and restraint. Then she storms ahead like a bull in a china shop b/c it's possible that Trump may turn out to have some undefined interest down the line."

The ruling, continued Litman, "never comes close to holding there's an executive privilege interest here. But b/c of the gossamer possibility that there may be one down the line, she orders the gov to stop its review and orders a Special Master to review all docs under completely undefined legal standards." He added that "it reads as if she's never handled criminal cases before."
I don't usually put much stock in who appointed whom, but this woman is a Trump appointee.  I'm guessing the vetting on her was minimal, that her perceived loyalty to Trump was all that counted. Because where I thought she was being rather more clever than most people, it turns out she was even stupider than anyone thought.  One wonders if she even listened to the arguments of the DOJ.  (As we will see in a moment, my temper cools as my cup full of hot coffee is spilled into the saucer of the analysis of Popehat*.)
If this goes to SCOTUS and the presiding judge of the district (Thomas, if I understand correctly) doesn't issue a stay on appeal that the full court supports, that would not be a bad thing. I can't see that happening, though, because even the Court that decided Dobbs was never coo-coo for cocoa puffs over Trump's election arguments, and this one is no better than those. IOW, I see this being reversed and smashed to bits in very short order. Because this opinion just throws a lot of law in the shredder. What I just said about reading comprehension, but now: "Did she even read the caselaw?" I'm no longer giving her that much credit. I honestly think she doesn't know her ass from a hole in the ground, and she's too incompetent to sit on the bench. There is, besides, another issue here that the 11th Circuit and even the Supremes will consider an overriding concern: And I'm just gonna drop this here to "prove" I was on the right track earlier: The problem with making an opinion "bulletproof" is that's where you put all your energy, and you ending writing an opinion riddled with error.  And it is still possible the judge is treating Trump as if he were pro se. Obviously that's a whole separate analysis in itself. Doesn't improve her competence on the bench, though. And it does clue you in, O my laypeople, as to how bad this opinion is. Seasoned lawyers are struggling to find even a justification for this. It's that bad. As far as the typical internet freakout about this ruling (it's still that bad): This, too; while we're here. IMHNon-Criminal Lawyer/No Expertise in Executive Privilege JurisprudenceLO, this (executive privileged) is the rock upon which this judge meets the hammer of the appellate process: Now: for the DOJ: to appeal, or not to appeal? That is the question: More fuel for the fire: There are always people, even lawyers, who think only the "good guys" should ever win. I've found that sentiment to prevail among prosecutors and former prosecutors. Defense attorneys and prosecutors turned defense attorneys tend to be both more sanguine and more agnostic, because it's never as simple as "yes" or "no." Yes, this is a bad decision; but how badly, actually, will it play out? And what does it actually interfere with? The DOJ will decide that, and act to protect its interests. My guess is the DOJ really doesn't like bad precedents. And there seems to be a lot in this order that, while it may not be catastrophic, is at least bad law and shouldn't be allowed to stand long (though its precedential value is practically nil until it gets to an appellate court, so there's that irony, too.) I will also point out that Popehat is not a judge, and judges have a perspective different from those of prosecutors or defense attorneys; which is the way the system is supposed to work. Still a lousy opinion, though.

And still, history gets the last laugh: *What? My grandfather drank his coffee that way. I still remember it fondly.
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