Thursday, August 10, 2023

Judge Cannon Seems To Be A Very Stupid Person 🤡

Judge Cannon is in over her head as a Federal Judge. She’s incompetent (forgetting to swear in a jury), or stupid, or clueless, or in the tank for Donald Trump. It’s hard to say; but it’s much harder to say she’s competent, qualified, and an admirable jurist. One thing is clear: she’s manipulable as a poseable doll.

Our story begins, not with what Cannon might have seen on TeeVee, nor with what Woodward (Nauta's lawyer; don't worry, all will become clear) said in court, but with a motion by the DOJ in SDFL for a "Garcia hearing":

A “Garcia hearing” is a hearing to ensure that a criminal defendant has adequate notice of his lawyer’s conflicts of interest. Waltine Nauta, Trump’s co-defendant in the Southern District of Florida, is represented by a lawyer named Stanley Woodward, Jr. According to the Justice Department’s motion, Woodward previously represented the person identified in the indictment as “Trump Employee 4,” and is currently representing two other potential witnesses, “Witness 1” and “Witness 2.” (A little Googling makes it pretty easy to conjecture who these people are, but their identities have never been publicly revealed.)
I'm relying on Adam Unikowsky's analysis here, but let me summarize a few things.  The Sixth Amendment gives a client a right to unconflcted counsel; that is, counsel with no conflicts of interest in representing said client.  Unikowsky poses this hypothetical:

If a lawyer, representing a client in a criminal case, has to cross-examine another one of his clients, an obvious conflict of interest arises. To represent his criminal client vigorously, he might have to make the witness look bad—but he can’t do that, because he represents the witness too. Because criminal defendants have a Sixth Amendment right to unconflicted counsel, Woodward’s representation of Nauta, while Woodward simultaneously represents witnesses in the same case, might yield a Sixth Amendment violation.

Now, the government can't go to the court and say:  "Sorry, your honor, but the defendant's counsel is disqualified because of a conflict of interest."  Why not?  Sixth Amendment, again. If Nauta is cool with the conflict, that's Nauta's problem.  But is he cool with that situation?  Might he claim after trial that he wasn't cool with it, nobody told him?  Yeah, that's grounds for a new trial.

Courts have devised a procedure to deal with this problem. In the Eleventh Circuit, this procedure is known as a “Garcia hearing.” Basically, the court holds a hearing in which it ensures the defendant is aware of the risks of a conflicted lawyer. The court can even appoint independent lawyers to represent the defendant and the witnesses for the purpose of explaining the risks of a conflicted lawyer. The case doesn’t proceed unless the defendant is fully apprised of the risks of having a conflicted lawyer and elects to proceed with that lawyer anyway.

This way DOJ can raise the issue so it isn't grounds for a new trial, and do so without impacting Nauta's Sixth Amendment rights.  And after the hearing, Nauta can't complain that he didn't know what he was doing.  But here's where the problems began:

The Justice Department’s Garcia motion declines to identify Witnesses 1 and 2. Instead, the Justice Department’s motion says: “In order to comply with grand jury secrecy requirements, the Government does not include the names of these individuals in this public filing, and instead provides additional information relevant to this motion in a sealed supplement.”

This is likely a reference to the grand jury proceeding in the District of Columbia. Under Federal Rule of Criminal Procedure 6, government attorneys generally are barred from disclosing matters occurring before a grand jury. 

Witnesses 1 and 2 are witnesses with which Woodward may have conflicts, since he's represented them, too (and cannot use what he learned from them against them, even to defend Nauta.  But he must zealously represent Nauta.  That's where the conflict comes in.)  Let me just quote Unikowsky extensively now, because he sets it up very clearly:

The Justice Department isn’t doing anything wrong by disclosing the fact of a separate grand jury proceeding. Remember that Trump was indicted in the D.D.C. on August 1—prior to the Justice Department’s filing of the Garcia motion—so the cat is out of the bag on that. However, the Justice Department doesn’t want to disclose the identity of the witnesses, because that would tend to reveal the fact that those witnesses testified before the D.C. grand jury, in violation of the Justice Department’s duty of secrecy. Also, the Justice Department might have to disclose details of their testimony in order to explain why there’s a conflict, which it can’t do because of grand jury secrecy rules.

Therefore, the Justice Department decides to do a completely normal thing—file the secret information under seal. As a general matter, court proceedings are supposed to be public, so litigants need permission to file under seal. So, the Justice Department files a motion for leave to file the secret information under seal (which is itself under seal), and it separately files, under seal, the secret information.

The Justice Department’s motion notes: “The Government has advised Mr. Woodward of its intent to file this motion requesting a Garcia hearing and its reasons for doing so. Mr. Woodward has indicated that as a general matter he does not oppose the Court informing his client of the client’s rights or inquiring into potential waivers, but that he will not consent to this motion without seeing it in advance, and he requests the opportunity to respond.” This is a reasonable position for Woodward to take—he can’t possibly object to a hearing intended to safeguard his own client’s constitutional rights, but he wants to see the motion before taking a position.

So, this motion is a hanging curveball for Judge Cannon. It’s obvious how Judge Cannon should respond to this motion. She should wait to hear Woodward’s position on it!

This is where I say Cannon is either stupid; or in over her head; or in the tank for Trump; or some combination of all three.  Because she goes....ape-shit.

Instead, Judge Cannon does something intensely weird. Two things, actually.

First, she denies the Justice Department’s motion to seal.

Second, she requests that Nauta file a response brief to the Justice Department’s motion addressing, among other things, “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.” She also says Trump and De Oliveira “may, but are not required to” file a brief addressing this issue.

I would say, at this point, that this is not grounds for recusal (for those of you grinding your teeth and muttering "CANNON!!!!" like Kirk yelling at Khan (you know what I mean)).  But it is grounds for reversal on abuse of discretion grounds, IMHLO.  The DOJ would know better, but this is not a good look for the Judge.  But I have to quote Unikowsky again:

First, the court denies the Justice Department’s motion to seal, and strikes the motion for leave to file under seal, as well as the secret information itself, from the docket.

Here’s the court’s rationale: “The Special Counsel states in conclusory terms that the supplement should be sealed from public view ‘to comport with grand jury secrecy,’ but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.”

Seriously?

Grand jury proceedings are supposed to be secret, and the Justice Department is disclosing the identity of grand jury witnesses and the substance of their testimony, so it wants to keep that information secret. That’s not a “legal or factual basis to warrant sealing the motion and supplement”?

I haven’t seen the motion for leave to file under seal, so I guess it’s possible that Jack Smith’s team is completely inept and failed to inform Judge Cannon that grand jury proceedings are supposed to be secret. I doubt it, though.

Maybe Judge Cannon thinks that the filings didn’t have to be sealed in their entirety? But if she thought that, she could have directed the Justice Department to file heavily redacted versions of the sealed filings, in addition to the sealed filings. She doesn’t do that. She just strikes the filings.

One clue as to why she’s doing this may come from her request for additional briefing (which I’ll get to below) on “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”

But this makes no sense. If she thinks there might be something wrong with the Justice Department relying on the D.C. grand jury proceeding, why is she immediately striking the sealed filings? Why doesn’t she wait for the response, and then strike the filing if she agrees with the response?

As of right now, she’s asking for a response regarding “the legal propriety of using an out-of-district grand jury proceeding”—even though she has stricken the filing that makes reference to the out-of-district grand jury proceeding! Why is she doing this? 

This is "Exhibit A" for my argument that Cannon is in so far over her head she has to look up to see bottom.  In what should be routine motion practice, she's begging for a lifeline by asking for breifs.  Not because this is a novel legal question or a hotly contested area of law, but because she doesn't know what she's doing and needs somebody to tell her what to do (reminiscent of the disaster with the MAL documents case before).  Contrast this with the D.C. case, where the judge asked the parties to decide on a protective order; they couldn't (and that issue is being fought over in Florida, too), and the parties submitted motions and briefs, as requested.  But the judge didn't freak, and when the parties couldn't set a date for the hearing, she did.  She's made it perfectly clear she's in charge of her courtroom, her docket, and that she's ready to rule from the bench on bog-standard criminal motion practice.  Cannon, by contrast, seems unsure which way "up" is.  Which is pretty clear from the rest of Unikowsky's analysis, which concerns the second part of Cannon's order:

In the second part of Judge Cannon’s order, as noted above, she directs Nauta to “file a response to the Motion for a Garcia hearing.” “Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.” With regard to Trump and de Oliveira, she says: “The remaining Defendants may, but are not required to, file briefs of their own related to the grand jury issue referenced herein.”

Seriously?

The judge hasn’t actually done anything yet, she’s Just Asking Questions, as they say on the Internet. Still, one might make a few observations about this request.

First, Judge Cannon has already started litigating from the bench. Nauta is free to make any argument he wishes regarding the Justice Department’s humdrum motion to file under seal. Why is she making suggestions for him?

Second, in the motion for a Garcia hearing, the Justice Department notes that Trump did not take a position on the motion—no surprise, because it has to do with Nauta’s representation, not Trump’s. Yet here, Judge Cannon is explicitly inviting Trump to respond to a motion Trump has already said he does not care about and has no reason to care about: “The remaining Defendants may, but are not required to, file briefs of their own related to the grand jury issue referenced herein.” Why?

Third, the argument that Judge Cannon proposes doesn’t make any sense. What “propriety” problem is she talking about?

Judge Cannon seems concerned that the Justice Department is “using” the D.D.C. grand jury proceeding to seek “post-indictment hearings” in the Southern District of Florida. The post-indictment hearing the Justice Department is seeking is one to safeguard the defendant’s right to conflict-free counsel. Is she suggesting that the Justice Department is supposed to keep secret from the court an impending violation of Nauta’s constitutional rights?

Fourth, as alluded to above, where’s the “propriety” problem if Judge Cannon has just stricken the sealed filings? Or is the mere utterance of the words “grand jury” in the Justice Department’s motion a basis to … I dunno … deny the motion for a Garcia hearing? Dismiss the indictment against Nauta? Put the Justice Department into receivership?

Hornbook law is that parties to a case file motions as a way of asking the court to take action.  Usually, to put it in Chief Justice Roberts terms, to call balls and strikes ("Yes, we will do this; no, we won't do that.")  A motion for a Garcia hearing is just that: a motion for a hearing on possible conflicts between defense counsel and a defendant so there are no grounds for appeal ("Nobody told me!") after the trial. 

It's not rocket science.

But Cannon seems to have confused it with an evidentiary hearing or even something more consequential, like a motion in limine (which would determine what issues can, and cannot, be raised before the jury).  Or maybe she thinks she's uncovered Deep State machinations (except by definition she is a part of the "Deep State."  Judges certainly make rulings based on reasoning laypeople like Trump can't understand.).

This is a signifcant issue not just because Judge Cannon is handling it in the worst way possible (and most incompetent, IMHLO), but because there is a shrinking universe of lawyers who will work for Trump, and that's going to cause its own problems. Here, let me put it this way, and you'll quickly understand why you see the same names as Trump's criminal lawyers, over and over and over again:

Partners in the de facto law firm of MAGA, MAGA, & MAGA, functionally a subsidiary of Trump’s Save America PAC, include:

  • Stanley Woodward, who represents Trump’s valet Walt Nauta in the documents case. Previously he represented Trump’s econ crank Navarro, his press flack Dan Scavino, and Kash Patel, a White House aide who was ordered to testify to the documents grand jury after making public claims that Trump had declassified all the records at Mar-a-Lago.
  • Jim Trusty and John Rowley, who represented Trump with respect to the documents and January 6 grand juries and who both quit when the first federal indictment was filed.
  • Evan Corcoran, who previously represented Trump, but was forced to withdraw after Trump lied to him about the location of government documents at Mar-a-Lago and induced him to draft a false declaration saying that a diligent search had been conducted, according to the documents indictment.
  • Christina Bobb, a relatively inexperienced lawyer who has not entered her appearance on any cases, but who signed the false declaration drafted by Corcoran and testified about it to the grand jury.
  • John Irving, who represents recently added documents co-defendant Carlos De Oliveira. Irving previously represented Stephen Miller, Rep. Scott Perry, and the aforementioned Mitchell, a lawyer on the infamous call with Georgia Secretary of State Raffensperger.
  • Tim Parlatore, who previously represented Trump and currently represents Bernie Kerik, a witness before the January 6 grand jury and former NYC police commissioner.
  • Chris Kise, a former Florida solicitor general who was paid $3 million to leave his position at the aforementioned Foley & Lardner and who now represents Trump in the documents case as well as the civil suit in New York.
  • Todd Blanche, who represented Trump’s advisor Boris Epshteyn before the grand juries, and now represents Trump in all three pending criminal cases.
  • John Lauro, who previously represented Christina Bobb and Alina Habba before the grand jury, and who now represents Trump in the January 6 case. His TV interviews over the past week about the January 6 indictment have been such a disasterclass that the government is already citing his comments in court filings (check out the below video for an example).

You'll notice Parlatore, Trusty, and Rowley no longer represent Trump, so that list is functionally three names shorter.  You'll also notice Woodward represents Nauta, represented several Trump adjacent people, and even had to testify to the grand jury about documents at MAL (which means he either worked for Trump, or hung around MAL too damned much.  Either way, it raises more conflict issues.).

Which breaks us to go back to emptywheel's tweet, where Woodward tried to argue the grand jury in D.C. was suspicious since it did the initial review of evidence for the MAL case, which case was then given to an SDFL grand jury before being filed in Florida because of...drumroll, please:  the Sixth Amendment (it's not just for lawyer conflicts anymore!).  Woodward tries to imply something is wrong in that combination of grand juries, as if the former were interlopers or outside agitators into Florida.  A competent judge would have swatted that like a fly.  Cannon, I repeat, is not a competent judge.

But back again to the subject of attorneys and conflicts.  The number of lawyers willing to represent Trump or work for Trump (he's paying the bills) is small.  The matter of conflicts is baked into the problem.  For example, in the DOJ's motion for the Garcia hearing we've been talking about, we find this:

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

Trump Employee 4 retained new counsel on July 5, 2023, and on July 27, 2023, the grand jury returned a superseding indictment adding Carlos De Oliveira as a defendant and charging all three defendants with obstruction-of-justice offenses stemming from their attempt to have Trump Employee 4 delete security camera footage at Mar-a-Lago.

There are reasons for the government to keep the identities of Trump Employee 4 under seal, if only so that person is not considered guilty by association, when they may just do grunt work for a wannabe crime boss who happens to own a club where they clean the tables.  And also to protect them from retaliation from Trump. Perfectly reasonable, IOW.  But that's some of the sealed information Cannon refused to allow even onto her docket.

Still wondering why.

I'll also pause here to say Trump's defense to the superseding indictment on the issue of the security footage is that they never deleted any tapes.  They've actually presented that in motion practice, knowing full well (or they should) that it's the attempt (conspiracy) they are being charged with; not the actual destruction of evidence.  "But muh freedom of speech!"  Yeah, don't even....  I'm not at all impressed with Trump's lawyers' efforts to try this case on TeeVee; I'm even less impressed with their efforts in court.

In short, Trump has created this problem of conflicts because he's chased off so much competent counsel if they all got together it would be quite a large lawfirm. 

He's left with counsel who has to have worked for witnesses and defendants now being charged.  He makes it worse by paying for those lawyers in order to keep those defendants close to Trump.  Nauta and De Oliveira may soon realize, as Cassidy Hutchison did, that Trump-paid lawyers may not have their interests at heart (there is no Garcia issue there.  If they claim conflicted counsel later, that's their problem.).

But it is, as Liz Dye says:  "...a little...incestuous."

And Judge Cannon is running her own clown show, with herself as the chief clown. 🤡 

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