Legal Dithering

Here’s my best reconstruction of what I’ll call Judge Cannon’s Undocketed Docket. It now includes ~18 briefs & ~70 exhibits, though 6 of the briefs will soon be filed publicly. That will leave 12 undocketed briefs, including 7 submitted more than a month ago, on 2/22. ...
1/15 pic.twitter.com/EYD9fpTPpP

— Roger Parloff (@rparloff) March 31, 2024

You don’t have to be a lawyer to understand what’s going on (and not going on) here.

... The govt—fearing witness harassment & intimidation, among other harms—moved to reconsider and signaled that it might take Cannon to the 11th Circuit over this. That motion has been fully briefed since 2/28. ...
/3 pic.twitter.com/gsdIpSk7gs

— Roger Parloff (@rparloff) March 31, 2024

There are about three axes here. This (revealing witnesses) is one of them.

... In that same 2/6 order Cannon also issued new rules, departing from Local Rules, that made it difficult & cumbersome to file redacted or sealed docs (other than classified docs) ...
/5 pic.twitter.com/IsDy01wgi6

— Roger Parloff (@rparloff) March 31, 2024

Altering local rules is another axis. There’s nothing per se wrong with changing local rules to fit a particular case. I just don’t see that Cannon is competent to do that, given the consequences that can arise (local rules are written for a reason).

... Her 2/20 rules instructed attys to email their submissions to her and each other while they awaited resolution of redaction disputes. That created what I’m calling the Undocketed Docket. ...
/7 pic.twitter.com/EYFNw2z2sh

— Roger Parloff (@rparloff) March 31, 2024

Consequences like creating the mess the case is in now.

... Indeed, since the govt has provided the court with redlined versions of all these briefs, detailing what it objects to, we could have public, redacted versions tomorrow if Cannon okayed them, even temporarily, while she continues to mull further unsealing. ...
/9

— Roger Parloff (@rparloff) March 31, 2024

Pretty much the facial reason why she wrote new rules: delay. Postponement. Avoiding being a judge. Because she’s incompetent? Because she’s in tank for Trump? Well, there’s a reason she’s the only judge he hasn’t slammed on social media.

... One day Cannon will also need to rule on defendants’ 13 motions to dismiss or suppress. So far, she has ruled on one of them, but she denied it “without prejudice,” meaning Trump can re-raise it in some form. ...
/11

— Roger Parloff (@rparloff) March 31, 2024

Third axis: avoiding decisions at all costs. Motions to dismiss are either/or, and the only one she’s ruled on was refused “without prejudice.” She didn’t finish it. Rulings leave her responsible. The most generous reading is, she’s avoiding responsibility as the lesson learned from the 11th Circuit slap down heard ‘round the world. Or, again, incompetence, or in the tank. And really, what’s the difference to the outcome? There’s certainly the appearance of something completely fucked up.

... Cannon has held 2 hearings so far on legal issues stemming from the motions to dismiss, but defendants want *evidentiary* hearings on many questions, which would take longer. ...
/13

— Roger Parloff (@rparloff) March 31, 2024

This case is revolving on three axes: that’s two too many. Meanwhile, the DOJ has to file proposed jury instructions 🤨 which, at the court’s direction, misstate the facts and the law. More incompetence? More proof she’s in the tank? What’s the difference?

"This is completely putting the cart before the horse," he said. "The judge is signaling, as she has signaled from the get-go, that she doesn't believe in this case, that she doesn't believe the case is warranted, and she's stacking the deck in favor of the defendant."

Undoubtedly true; but what can the 11th Circuit do? An appeal of that order will reverse the order (she’s so far off the reservation she can’t even see the reservation anymore), but I don’t think present the issue for her forced recusal.

I do, however, think that’s coming. Except DOJ has to make sure it goes through. The old adage about kings applies to judges, too: if you strike, you’d better kill. Wounding only leaves you worse off.

Trump is going to learn that lesson again. Soon.