Here’s the thing. I’m on Smith’s side and all of that, but he’s bluffing on this and Cannon knows it. Since she is in no legal jeopardy (The only thing that can happen to her is impeachment, which is impossible in today’s political environment), there is absolutely nothing stopping her from simply ignoring Smith until the trial, waiting until the jury is seated, then essentially dismiss the case for whatever reason she wants once double jeopardy is attached and the dismissal is not appealable. If she is willing to endure the professional fallout from that decision, there is literally nothing Smith can do to stop her.
Mark my words:
Cannon can and will dismiss this case the instant she gets the opportunity once her decisions aren’t appealable and double jeopardy attaches.
The GA case will fall apart because of the affair between Fani Willis and Nathan Wade. She committed ethics violations regarding her affair and the cover-up that should get her disbarred, and I think even the worst of Trump’s lawyers should and will be hopping all over that if they even have a shred of competency.
The Supreme Court has intentionally delayed the DC case by two months while they – I wish I was joking – decide whether or not the President of the United States has total immunity from legal prosecution, and seem poised to find a way to give him such a ruling in a way that only applies to Trump and wouldn’t apply to future Presidents. Their decision to hold off for two months on this is a clear stalling tactic so they can figure out exactly how to do that.
The NY case was already seen as a relatively weak case based on law that even Bragg’s supporters are saying is shaky at best. The general public really couldn’t care less, and Trump is seen as being at no significant legal risk as there is no jail time involved, monetary fines are inconsequential to him, and polls show he will suffer no political fallout from the verdict. Complicating matters is Bragg’s office fumbling the ball when it comes to discovery, giving Trump an opportunity to cause even more delays.
From the day Trump came down that escalator, he has been playing our government, our judicial system, and our press system like a god damned fiddle. They continue to play Trump’s games by Trump’s rules and wondering why they keep getting dragged down to his level and beaten to death with experience. And as long as those in charge of just about every facet of our society continues to allow Trump to play by his own rules, there is no reason to believe that anything is going to change any time soon.
I’m not an attorney either, but this guy is and has the credentials to prove it, and the current situation really does seem hopeless until you get to his primary point, around the 6:25 mark, where he explains that the filing itself calls Cannon out for trying to insulate herself against appellate scrutiny, and it demands she rule now because it must be done prior to the start of trial and the attachment of double jeopardy exactly so that prosecution can appeal.
In other words, Smith has taken Cannon’s overall delays as well as the as-yet unspoken defense strategy of trying to delay until appeal is impossible, and placed them front and center in this filing, then hit it from every conceivable direction to set up his own case for the 11th Circuit.
“All of this is like pushing back on a B-minus law student,” is what Litman called Smith’s motion on Cannon’s request, before adding his own summation of Smith’s brief at 10:55, “Yo, Cannon, rule NOW or we are going to mandamus your ass back to the 11th Circuit.” From your own Wikipedia link, this is the perfect time and case for this remedy, as uncommon as it is:
In the context of mandamus from a United States court of appeals to a district court, the Supreme Court has ruled that the appellate courts have discretion to issue mandamus to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an appeal from a final judgment.
The whole thing is great, well worth the listen (I sped it up to 1.25). Fantastic link, thank you for sharing.
You’re very welcome, glad to share the gospel according to Harry. Also thanks for banging out that killer summary, I should have done that myself but excuse excuse.
No problem. (I’m actually here myself right now because I’m putting off some other stuff, lol.) I’d never actually seen or heard of Harry Litman before today, and I stay well away from opinions until I’ve had a chance to vet the source (which means in practice that I just generally avoid commentators in general, especially political or legal) so this is great, I have a new reliably sane one to listen to.
But I confess to being confused on one point: when Litman is discussing mandamus at length, from about 12:00 forward, after acknowledging that the 11th could just deny it, he then discusses a grant of mandamus from the 11th in terms of getting a whole new judge (13:30) “then you get a real judge who will move the case forward,” etc. I looked at the transcript to see if I’d missed anything, but no, that’s really where he meant to go.
As a layman, I understand a writ of mandamus to mean a simple order to complete the duties of an office; in this specific case, an order to compel Cannon to rule immediately on the specific questions Smith has presented.
Did Litman jump ahead to a third step where Cannon simply ignores such an order and gets replaced, or is the threat of disqualification, censure, or other judicial correction implied in mandamus in this context? I am aware of the history between the 11th and Aileen Cannon’s previous judicial efforts on Trump’s behalf, but have no real idea how mandamus works in practice.
I’d like to know because I don’t wanna get my hopes up, lol. But listening to that portion of Litman’s commentary makes it sound as though if Smith gets his writ of mandamus there’s a lot more than just that specific ruling at stake here.
From my view, it is perfectly reasonable to be skeptical of any one take, even from someone as well credentialed as Harry.
To that point, one bugbear I am wary of is the inherent cover that lawyerly types tend to give to the Justice system writ large: namely, that it can self-police and correct for biases or bad actors. No legal source I’ve followed has yet to grapple with this blind spot specifically.
Which is to say, I’m right there beside you in being hesitant to overinvest in any one outcome.
With that, I’ll throw one more resource at you, and that is the Serious Trouble podcast. The cadence from this crew is much slower, but they bring a fair bit of levity to the table alongside some deep perspective from the angle of defense, and so I look forward to each episode. My hope is they will dive into a discussion around mandamus also, as I am just as flummoxed as you when it comes to understanding specifics.
Have a good one, and thanks again for the thoughtful conversation.
Regarding lawyers and the discussion of self-policing, I’ve seen it in person and I find your statement both accurate and restrained, lol. It’s the same with doctors: talk about personal and specific incidents of overt medical misbehavior with doctors and you can feel their sphincter tightening even from your own chair.
I don’t expect either group to take it on publicly without a great deal more cause than exists now, or perhaps even ever, because the personal, professional cost of being the one to start the movement would be extreme and never-ending. There is a tribalism evident in both professions that I don’t think will ever change, not least because throughout the centuries both groups have worked very hard to keep their professions closed guilds, literally, complete with their own deliberately obscure argots. Change begins with the individual, and unfortunately, at this point I personally think the attack against any insider publicly calling for change instead of keeping it hidden within the group would be merciless, no matter how extreme the problem.
I will definitely look into the Serious Trouble podcast. And thank you for the thoughtful conversation likewise.
Actually, yes it was an affair. They started having a romantic relationship in 2019, and he was married until 2021. That’s the literal definition of an affair. They also snuck around to hotel rooms and played all sorts of shell games with money to cover it up. They freely admitted it all on the stand, and even after that the judge still doesn’t believe they were fully forthcoming.
With that said…yes, they are consenting adults. Yes, their affair has absolutely nothing to do with Trump’s case. But that’s actually kinda the point. Regardless of the cases before her, she engaged in unethical (at best) conduct, was not forthcoming under testimony, and should consider herself lucky if she doesn’t get disbarred. If she weren’t the one who was the lead on the Trump case, I’d be willing to bet there would be a lot less support for her and a lot more calls for her resignation. She is likely benefitting because others don’t want to see the Trump case fall apart entirely by having her removed.
That case is, far and away, the biggest case that she will have in her career. Probably the biggest and most consequential case in US history. In a case of this magnitude, you get one shot. You cross every T, dot every I. You engage in exactly fucking nothing that would even tangentally affect this case or hint at even a whiff of impropriety. To take on this case while engaging in that kind of unethical (if not outright illegal) conduct just shows hubris, a complete lack of judgement, and a complete disregard for the importance of the case that she herself brought or the impact that her actions could have on her career, the case, and even the country as a whole.
there is absolutely nothing stopping her from simply ignoring Smith until the trial, waiting until the jury is seated, then essentially dismiss the case for whatever reason she wants once double jeopardy is attached and the dismissal is not appealable. If she is willing to endure the professional fallout from that decision, there is literally nothing Smith can do to stop her.
Could Smith split the pile of stolen files in half and simply pursue charges on half the files? Assuming jeopardy is attached on the case for the first traunch of the files and Trump is found innocent because of Cannon’s trickery, Smith could then file a new case with the second traunch of the files and no jeopardy from the prior trial would apply because he’d be seeking prosecution on “new” files?
Could Smith split the pile of stolen files in half and simply pursue charges on half the files?
Only if the cases are separate criminal acts. If I murder someone in Philadelphia and six months later, I murder someone else in Pittsburgh, the DA can prosecute me for one of the two murders and keep the other case in his back pocket in case something goes wrong to ensure that I stay in jail.
But let’s say I only killed one person. On a typical murder charge, there’s usually a small list of felonies (Murder, assault, illegal weapon possession, civil rights violations, etc. etc. etc.). The DA can’t bring a weak case against me for murder, then decide to try again and charge me for a weapons violation in order to keep me in jail, and then an assault charge if that fails too, etc. That is essentially an end-run around double jeopardy and is explicitly forbidden. If it weren’t, the double jeopardy protections of the 5th amendment would cease to exist as the lawyer could just divvy up the charges among an endless stream of cases until something finally sticks.
The GA case will fall apart because of the affair between Fani Willis and Nathan Wade. She committed ethics violations regarding her affair and the cover-up that should get her disbarred, and I think even the worst of Trump’s lawyers should and will be hopping all over that if they even have a shred of competency.
I don’t know much about the US legal system, but I don’t understand how this affair has any bearing on the legitimacy of the case being brought against Trump?
I presume Fani Willis could be removed, but the case against Trump would still continue under a new DA?
I don’t know much about the US legal system, but I don’t understand how this affair has any bearing on the legitimacy of the case being brought against Trump?
It doesn’t. From Trump’s point of view, this was the equivalent of Trump standing at Mar-a-Lago, trying to score a hole in one on a golf course in New York by hitting the ball by way of Tokyo and just hoping the wind shifts direction, and actually hitting it. Her affair itself has absolutely zero bearing on the Trump case, but the facts that have been unearthed surrounding the affair have brought her general ethics and motives into question. This is typically the death knell of a lawyer’s career.
I presume Fani Willis could be removed, but the case against Trump would still continue under a new DA?
It assumes a number of things:
GA is traditionally a red state. It is very possible that a new administration may choose (or be told to) to simply let the case die.
A new team would need time to be brought up to speed and prep for the case. This alone would easily push the case well into 2025 or even 2026, which basically gives Trump the victory he’s been seeking in the first place.
The ethics questions of why the case was brought in the first place would linger anyway, which could complicate the case going forward, and which Trump and his team would mercilessly exploit in order to sow doubt, create endless delays, and/or even hope for jury nullificaiton, lowering the chances of a successful conviction.
Here’s the thing. I’m on Smith’s side and all of that, but he’s bluffing on this and Cannon knows it. Since she is in no legal jeopardy (The only thing that can happen to her is impeachment, which is impossible in today’s political environment), there is absolutely nothing stopping her from simply ignoring Smith until the trial, waiting until the jury is seated, then essentially dismiss the case for whatever reason she wants once double jeopardy is attached and the dismissal is not appealable. If she is willing to endure the professional fallout from that decision, there is literally nothing Smith can do to stop her.
Mark my words:
From the day Trump came down that escalator, he has been playing our government, our judicial system, and our press system like a god damned fiddle. They continue to play Trump’s games by Trump’s rules and wondering why they keep getting dragged down to his level and beaten to death with experience. And as long as those in charge of just about every facet of our society continues to allow Trump to play by his own rules, there is no reason to believe that anything is going to change any time soon.
Not an attorney myself but also didn’t see you wrestle with the mention of MANDAMUS in the brief. Discuss.
I’m not an attorney either, but this guy is and has the credentials to prove it, and the current situation really does seem hopeless until you get to his primary point, around the 6:25 mark, where he explains that the filing itself calls Cannon out for trying to insulate herself against appellate scrutiny, and it demands she rule now because it must be done prior to the start of trial and the attachment of double jeopardy exactly so that prosecution can appeal.
In other words, Smith has taken Cannon’s overall delays as well as the as-yet unspoken defense strategy of trying to delay until appeal is impossible, and placed them front and center in this filing, then hit it from every conceivable direction to set up his own case for the 11th Circuit.
“All of this is like pushing back on a B-minus law student,” is what Litman called Smith’s motion on Cannon’s request, before adding his own summation of Smith’s brief at 10:55, “Yo, Cannon, rule NOW or we are going to mandamus your ass back to the 11th Circuit.” From your own Wikipedia link, this is the perfect time and case for this remedy, as uncommon as it is:
The whole thing is great, well worth the listen (I sped it up to 1.25). Fantastic link, thank you for sharing.
You’re very welcome, glad to share the gospel according to Harry. Also thanks for banging out that killer summary, I should have done that myself but excuse excuse.
No problem. (I’m actually here myself right now because I’m putting off some other stuff, lol.) I’d never actually seen or heard of Harry Litman before today, and I stay well away from opinions until I’ve had a chance to vet the source (which means in practice that I just generally avoid commentators in general, especially political or legal) so this is great, I have a new reliably sane one to listen to.
But I confess to being confused on one point: when Litman is discussing mandamus at length, from about 12:00 forward, after acknowledging that the 11th could just deny it, he then discusses a grant of mandamus from the 11th in terms of getting a whole new judge (13:30) “then you get a real judge who will move the case forward,” etc. I looked at the transcript to see if I’d missed anything, but no, that’s really where he meant to go.
As a layman, I understand a writ of mandamus to mean a simple order to complete the duties of an office; in this specific case, an order to compel Cannon to rule immediately on the specific questions Smith has presented.
Did Litman jump ahead to a third step where Cannon simply ignores such an order and gets replaced, or is the threat of disqualification, censure, or other judicial correction implied in mandamus in this context? I am aware of the history between the 11th and Aileen Cannon’s previous judicial efforts on Trump’s behalf, but have no real idea how mandamus works in practice.
I’d like to know because I don’t wanna get my hopes up, lol. But listening to that portion of Litman’s commentary makes it sound as though if Smith gets his writ of mandamus there’s a lot more than just that specific ruling at stake here.
From my view, it is perfectly reasonable to be skeptical of any one take, even from someone as well credentialed as Harry.
To that point, one bugbear I am wary of is the inherent cover that lawyerly types tend to give to the Justice system writ large: namely, that it can self-police and correct for biases or bad actors. No legal source I’ve followed has yet to grapple with this blind spot specifically.
Which is to say, I’m right there beside you in being hesitant to overinvest in any one outcome.
With that, I’ll throw one more resource at you, and that is the Serious Trouble podcast. The cadence from this crew is much slower, but they bring a fair bit of levity to the table alongside some deep perspective from the angle of defense, and so I look forward to each episode. My hope is they will dive into a discussion around mandamus also, as I am just as flummoxed as you when it comes to understanding specifics.
Have a good one, and thanks again for the thoughtful conversation.
Regarding lawyers and the discussion of self-policing, I’ve seen it in person and I find your statement both accurate and restrained, lol. It’s the same with doctors: talk about personal and specific incidents of overt medical misbehavior with doctors and you can feel their sphincter tightening even from your own chair.
I don’t expect either group to take it on publicly without a great deal more cause than exists now, or perhaps even ever, because the personal, professional cost of being the one to start the movement would be extreme and never-ending. There is a tribalism evident in both professions that I don’t think will ever change, not least because throughout the centuries both groups have worked very hard to keep their professions closed guilds, literally, complete with their own deliberately obscure argots. Change begins with the individual, and unfortunately, at this point I personally think the attack against any insider publicly calling for change instead of keeping it hidden within the group would be merciless, no matter how extreme the problem.
I will definitely look into the Serious Trouble podcast. And thank you for the thoughtful conversation likewise.
Greatest country in the world my ass
America is not the greatest country in the world
I watch this clip every time it’s posted. I wish there were real people that talked like this.
Good series.
Although I’m not a lawyer, I suspect this analysis is correct because it is completely depressing and so matches up perfectly with reality.
Portugal has one of the best golden visa programs in Western Europe.
Thanks for the tip
Yep consenting adults being romantically involved is not an affair.
Actually, yes it was an affair. They started having a romantic relationship in 2019, and he was married until 2021. That’s the literal definition of an affair. They also snuck around to hotel rooms and played all sorts of shell games with money to cover it up. They freely admitted it all on the stand, and even after that the judge still doesn’t believe they were fully forthcoming.
With that said…yes, they are consenting adults. Yes, their affair has absolutely nothing to do with Trump’s case. But that’s actually kinda the point. Regardless of the cases before her, she engaged in unethical (at best) conduct, was not forthcoming under testimony, and should consider herself lucky if she doesn’t get disbarred. If she weren’t the one who was the lead on the Trump case, I’d be willing to bet there would be a lot less support for her and a lot more calls for her resignation. She is likely benefitting because others don’t want to see the Trump case fall apart entirely by having her removed.
That case is, far and away, the biggest case that she will have in her career. Probably the biggest and most consequential case in US history. In a case of this magnitude, you get one shot. You cross every T, dot every I. You engage in exactly fucking nothing that would even tangentally affect this case or hint at even a whiff of impropriety. To take on this case while engaging in that kind of unethical (if not outright illegal) conduct just shows hubris, a complete lack of judgement, and a complete disregard for the importance of the case that she herself brought or the impact that her actions could have on her career, the case, and even the country as a whole.
Could Smith split the pile of stolen files in half and simply pursue charges on half the files? Assuming jeopardy is attached on the case for the first traunch of the files and Trump is found innocent because of Cannon’s trickery, Smith could then file a new case with the second traunch of the files and no jeopardy from the prior trial would apply because he’d be seeking prosecution on “new” files?
Only if the cases are separate criminal acts. If I murder someone in Philadelphia and six months later, I murder someone else in Pittsburgh, the DA can prosecute me for one of the two murders and keep the other case in his back pocket in case something goes wrong to ensure that I stay in jail.
But let’s say I only killed one person. On a typical murder charge, there’s usually a small list of felonies (Murder, assault, illegal weapon possession, civil rights violations, etc. etc. etc.). The DA can’t bring a weak case against me for murder, then decide to try again and charge me for a weapons violation in order to keep me in jail, and then an assault charge if that fails too, etc. That is essentially an end-run around double jeopardy and is explicitly forbidden. If it weren’t, the double jeopardy protections of the 5th amendment would cease to exist as the lawyer could just divvy up the charges among an endless stream of cases until something finally sticks.
Professional fallout? Trump will make them a supreme Court member for this.
I don’t know much about the US legal system, but I don’t understand how this affair has any bearing on the legitimacy of the case being brought against Trump?
I presume Fani Willis could be removed, but the case against Trump would still continue under a new DA?
It doesn’t. From Trump’s point of view, this was the equivalent of Trump standing at Mar-a-Lago, trying to score a hole in one on a golf course in New York by hitting the ball by way of Tokyo and just hoping the wind shifts direction, and actually hitting it. Her affair itself has absolutely zero bearing on the Trump case, but the facts that have been unearthed surrounding the affair have brought her general ethics and motives into question. This is typically the death knell of a lawyer’s career.
It assumes a number of things: