That’s Some Catch

Cannon's effort to mischaracterize Smith's motion as seeking a ruling on a jury instruction is rich- it was Cannon who asked for draft jury instructions by 4/2 and Smith moved for a legal ruling that the PRA is not a defense. And she only partly ruled on that saying it is not now… https://t.co/41geNJMG8G

— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) April 4, 2024

Legal Twitter is all a-flutter with the ruling by Judge Cannon. She dismissed Trump’s Motion to Dismiss on the grounds the PRA immunized him (that order would have been appealable). But she also explicitly refused to rule out allowing Trump to use the PRA and to present it to the jury in the form of an instruction.

Now this is where the difference between a civil case and a criminal case arises. The losing party to a civil case, whoever they are, can appeal. The state cannot appeal the failure to get a criminal conviction because of the ban on double jeopardy. Double jeopardy generally attaches when the case goes to the jury. The jury charge is given after the trial, and before the jury deliberates on a verdict. Which brings up the first odd thing: why did Cannon propose two jury charges before the trial date has even been set?

She seems to have set up for an appeal, and then tried to pull it away. That’s Weissman’s point: Jack Smith directly asked for a ruling on whether or not she would allow the PRA to be a defense. Smith can renew his motion, and appeal the denial.

Alternatively, Smith might wait for a limine hearing and move to bar the defense from the trial. That might be the safer course, because denial of that request would be appealable and most likely (and easily) upheld.

Or Smith could strike at the king, and appeal to the 11th Circuit to remove Cannon. Her latest order seems very aware of that possibility. She doesn’t back down, but she doesn’t give Smith anything solid to work with. She can be presumed to be corrupt, or incompetent; but she can also be presumed to be doing her job in her own way. After all, we may dislike the results of Sam Alito’s decisions; but can we say it’s enough to remove him from the bench? I don’t think even a Senate of 100 Democrats would do so. Very bad precedent, don’t you know?

But if she’s allowed to impose an instruction on Trump’s PRA defense, double jeopardy has attached and there’s no appeal possible.

It’s not quite Catch-22; but we’re getting damned close.