Aileen Cannon fodder
Behind MAGA Judge Aileen Cannon’s recent refusal to dismiss Donald Trump’s classified documents case lurks an ominous portent. According to attorney Ben Meiselas and former attorney and Trump fixer Michael Cohen, Cannon could move to immediately dismiss the case at its very beginning, citing the Presidential Records Act of 1978 (PRA). Cohen asserts that Cannon could invoke what he calls “Rule 19.” Meiselas adds, “… and then [double] jeopardy would attach, meaning Jack Smith couldn’t appeal it.”
As a layman looking from the outside in, I see several problems with this. I admit I am no lawyer. I played a veterinarian once in amateur dramatics, but I’m pretty sure that doesn’t count. So I am applying my native common sense and am hoping for the best.
First of all, PRA means the exact opposite of what Donald Trump asserts that it means. PRA “Establishes that Presidential records automatically transfer into the legal custody of the Archivist [that is, the National Archives and Records Administration (NARA)] as soon as the President leaves office.” In other words, official records, which are distinct from personal records, are not and never have been the personal property of any president of the United States. They are to be turned over to NARA immediately and without delay upon said president leaving office.
Common sense and actual precedents tells us that personal records would include such things as personal diaries and reflections written for the intent of publishing a presidential memoir, notes from the president’s spouse or children written during his or her time in office, photocopies of menus from state luncheons and dinners, copies of photos of the president with his or her family, and so on. Public (i.e., “presidential”) records would include (but would not be limited to) such items as top secret nuclear documents and all other classified documents, notes and official letters from heads of foreign states, and all other papers and documents pertaining to the day-to-day official duties of the president, and so on. Any document the president might wish to subsequently retain, he or she could do so through the Freedom of Information Act (FOIA), like any ordinary citizen.
Cannon citing PRA as a pretext for a motion to dismiss would be like dismissing a murder charge by interpreting criminal murder statutes as suggesting that murder is not a crime. I do not know if judges have that much latitude and the law can disallow such a motion, but I’m pretty sure that such an act would be certain grounds for impeachment.
Should the judge move to dismiss for some other less spurious reason, it seems to me that reason would also necessarily have to be valid. Again, the law may give her sufficient latitude to do so anyway, and therein could lie the whole problem.
In any case, Cannon’s refusal to dismiss the case now is a pragmatic one. If she dismissed the case before the trial began, Jack Smith could simply refile the case and draw a different judge. Cannon dismissing the case after the case begins means double jeopardy would attach and Trump could never be retried for those charges specific to the case ever again.
If all these common sense musings are true, then they are certainly known to Jack Smith. Mr Smith is no fool, and I suspect that if I know all this then he knows it better, and he will take steps to have Cannon removed from the case, or he will invoke some other means to prevent Cannon from abusing her office.
Whatever the outcome, it is clear to any child over the age of five that Aileen Cannon is outrageously conflicted. She is clearly a MAGA Republican of the first order. As if that’s not enough, she is also out of her depth, and has demonstrated her incompetence by making several judicial errors, including her attempt to appoint a Special Master, who understood the law far better than she, to oversee the case.
One threat is that Cannon could instruct the jury to disregard the charges citing PRA. Any competent prosecutor would read the PRA to the jury and enter it into the record. Any jury with an IQ above room temperature would immediately see for themselves that the judge is lying, and the judge would instantly and irrevocably impeach her own credibility.
It seems to me that the best way forward is to have Cannon removed from the case, citing conflict of interest. I suspect Mr Smith agrees with me. I further suspect that he’s accumulating as many legal pretexts as he can in order to do so. There’s no need to hurry. Between now and the start of the trial, Cannon appears to be hellbent on giving him all the reasons in the world. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.