Littman: Eileen Cannon’s response to President Trump’s classified records incident went from bad to bad.

Eileen Cannon had questionable influence from the start as the judge presiding over the federal prosecution of Donald Trump for keeping secret records in his Florida mansion. She has consistently pandered to President Trump’s outlandish legal arguments and overall delay strategy.

But her latest order confirms that Ms. Cannon has indeed crossed the line and become a running hindrance to the former president who benched her.

of order, The document, published by Cannon on Monday evening, concerns one of Trump’s repeated baseless claims for dismissal of the charges. His lawyer argues that: presidential records act He authorized him to reclassify any and all records as “personal” and said he did so by the mere act of placing the records in a bank box that he spirited away at Mar-a-Lago.

This frivolous argument would not be accepted in most federal courts. This is a meaningless interpretation of the law, which is intended to make it clear that, with the exception of a few personal possessions such as diaries, presidential records belong to the people, not the outgoing president.

Furthermore, the argument is beside the point.No matter how the records President Trump stole are characterized, they are still crimes. Based on espionage laws This was to intentionally preserve national defense information, which is clearly the document at the center of this case.

But Cannon’s order does not discuss the merits of Trump’s case. Rather, he directs each party to submit two sets of draft jury instructions that “commit” to different legal conclusions regarding recording law. The problem is that both conclusions are directly contrary to the law.

In Cannon’s first scenario, a jury would have to make a factual finding on whether the government proved beyond a reasonable doubt that Trump’s fugitive records belonged to the president, not his personal ones. I am assuming that it will not. In other words, what if President Trump’s claim that his classified documents were magically turned into his personal property was a valid factual defense rather than a frivolous legal claim?

The second scenario is even more bizarre in that it assumes the president has unreviewable authority to classify records as personal. If the jury were so instructed, it would be the same as ensuring Trump’s acquittal.

Cannon’s order is not just legally meaningless. It’s both strange and harmful.

That’s an absolutely stupid way to address President Trump’s motion to dismiss the case under the Records Act. It is completely unrealistic to ask parties to frame jury instructions based on legal fiction (actually, legal fantasy) months before jurors are selected. I have never seen an order similar to this.

Mr. Cannon began his turbulent response to the case with a similarly baffling ruling that upheld Mr. Trump’s challenge to a search warrant issued at Mar-a-Lago. The Eleventh Circuit Court of Appeals reversed that decision in sharp enough language to raise the prospect that such a lawless misadventure could happen again and the judge could be removed from the case.

If that happens, the legal and political trends will change dramatically. The secret records charges against Trump are so brief that another judge could easily accelerate the case toward a likely major conviction well before the November election.

This is where the harmful side of the Cannon Order appears. Even as the justices have been amused by Trump’s petty theories and helped waste time, they have carefully avoided issuing orders that could leave Special Counsel Jack Smith’s team open to appeal. . And she asks her to refuse.

Her latest order is a case in point. The order lays out legal conclusions that could lead to swift revocation and force her to repudiate her, but all it asks of the parties is to “address” these unlawful assumptions. , which does not provide much benefit to the appellate court. Seize it. In other words, Mr. Cannon is playing tricks in Mr. Trump’s favor while avoiding the scrutiny of the appellate courts.

The judge appeared to use a similar ploy against her. ruling last week. She denied Trump’s baseless motion to dismiss the case on the grounds that the Espionage Act is unconstitutional and vague, but said his lawyers could raise the issue again after the trial begins. I was left with the prospect that there would be.

Mr. Cannon’s latest order similarly appears to set the stage for jury instructions to accept Mr. Trump’s absurd legal claims. This is a particularly ominous prospect, since at that point the jury would be censured and a double jeopardy clause would preclude a retrial.

Mr. Cannon may have come up with a strategy to give Mr. Trump the delay he desires and dismiss the case after the jury is sworn in. On the other hand, he will never be subject to detention or ejection by the Eleventh Circuit.

All of this leaves Smith with a difficult choice. He can comply with the judge’s order and acquiesce to the possibility of laying the basis for dismissing the case at an irreversible point. Or she could refuse to go along, risking Cannon’s wrath and trying to position prosecutors to appeal if she actually did something worthy of consideration.

It’s not an easy call, especially when it appears the referee is playing for the opposing team.

Harry Littman officiating. Podcast “Talking Fed” And that Talking San Diego speaker series. @Harry Littman