The Day Before Indictments Reads: “One Set of Laws”

Attorney Reading
Honore Daumier

Good Day, Sky Dancing!

We’ve planned a perp watch party here in my hood for tomorrow. We’re all excited that it’s finally happening. Here are some reads to get you ready for this big week!

We’ve heard a lot about the assignment of Judge Loose Cannon to the Case. Here is some information on what could possibly happen with that. BB suggested the best source for what’s going down with that, and the week is from Civil Discourse with Joyce Vance. This is her SubStack. I’ll focus on tomorrow’s Indictment. It will be handled by Judge Jonathan Goodman. This does not mean Judge Loose Cannon is gone.

We’re told Tuesday’s arraignments are being handled by Magistrate Judge Jonathan Goodman in the courthouse in Miami, rather than in the Fort Pierce Division where Cannon sits. District judges can and do on occasion handle arraignments themselves in high-profile cases—it happened in this district in a case involving Colombian drug kingpins. But here, it’s likely that arraignment will proceed before the magistrate judge in a perfunctory matter, and Trump will enter his plea of not guilty after being processed, fingerprinted, and submitting to a mug shot. The process is likely to be highly orchestrated by the court, the Marshals Service, and the Secret Service, with everyone on high alert because of Trump’s social media posts, reminiscent of the “will be wild” tweet ahead of January 6. As the New York Times detailed, these latest posts have set off a cascade of troubling calls to “support” Trump.

Vance wrote quite a bit of what we might have to see with the appointment of Judge Loose Cannon.

Since we’re talking about judicial discretion, there is lots of concern about the assignment of federal Judge Aileen Cannon to this case. And rightly so given the way she mishandled Trump’s lawsuit after the search, designed to delay or prevent the investigation. Cannon was nominated to the bench by Trump and confirmed after he lost the election. However, there was nothing nefarious about Cannon’s selection. The clerk’s office uses a computerized random selection process. It was the bad luck of the draw.

Among other things, judges are supposed to carefully protect the integrity of the judicial system and the public’s confidence in it. That’s the reason for rules about recusal. The rules come down to requiring recusal where “the judge’s impartiality might reasonably be questioned.” This isn’t a casual standard requiring constant recusals, which would be disruptive. It’s reserved for situations where an objective observer looking at a case would lack confidence the judge could act fairly, for instance, if they had a financial interest in the outcome or a family member were a lawyer for one side.

In less obvious situations, a decision about when a judge should recuse is made on a case-by-case basis. In a case I handled in 2006, U.S. v. Martin, the 11th Circuit Court of Appeals considered an unusual situation involving sentencing and determined that a judge needed to step aside. The judge had sentenced the case, was appealed and reversed, and had resentenced. Considering the judge’s second bite at the appeal, the court reflected, “Finally, based on our review of the record and the elements that this Court considers in determining whether to reassign a case to a different judge where there is no indication of actual bias, see United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (per curiam), we have determined it wiser to remand this case with instructions to reassign it to a different judge. This is the second appeal in Martin’s case and the second time we have had to reverse the sentence that the district court gave Martin…In light of the two reversals in this case and three other appeals in which we have reversed the same judge for extraordinary downward departures that were without a valid basis in the record, we find it likely that ‘the original judge would have difficulty putting his previous views and findings aside.’” It’s unusual to find that a judge’s decisions can form the basis for recusal, but it did in Martin.

When Cannon handled the earlier Trump matter, the 11th Circuit ruled against her twice. The first time was on a preliminary motion after she limited the ways the government could use classified documents seized—in an entirely lawful and normal fashion—from Mar-a-Lago and seriously hampered the government’s investigation (as well as unnecessarily expanding the universe of people with access to classified material). When the Court decided the case on its full merits, they resoundingly reversed Cannon and were sharply critical of the way she handled the case in a fashion that went beyond the typical reversal where the appellate court thinks the district judge got it wrong. It’s not infrequent for that to happen. There are many close calls, and judges acting in good faith can disagree. The tenor of the 11th Circuit’s opinion reversing Cannon was different, finding she lacked jurisdiction and insinuating it was not a particularly close call. She reached a result that was favorable to Trump by all but ignoring the law, refusing to apply it, and rejecting the government’s positions without explaining why. It was the sort of extreme error that rises to the level of Martin, calling into question both whether the judge could set aside her previous views and whether a reasonable person would question her ability to handle the case fairly. Cannon had gone so far as to say her decisions were “inherently impacted by the position formerly held by the plaintiff,” i.e., that he had been the president.

All of this forms a solid basis for Cannon to decide that she should recuse. And she could couch it in this manner, that although she is confident she could handle the case fairly, she is stepping aside to ensure the public has confidence in this highly important matter. That wouldn’t guarantee a judge appointed by a Democratic president would take over—it could even be another Trump appointee. But it would ameliorate specific concerns about a specific judge that would so overtake the case that it would be impossible to have confidence in the outcome. Trump might even argue that she was bending over backward to rule against him in order to protect her own reputation. No one wins, including the judge herself, if she remains on the case. But it’s up to her right now.

What do we make of the fact that Cannon is a Trump appointee? Normally, that’s just not a factor. Every judge is appointed by a president from one party or another, and judges are often called upon to rule in favor of or against a policy of the president who appointed them. It’s not viewed as a ground for recusal. This may be a little different because it’s a criminal case involving the president who appointed her. A judge probably would recuse from a criminal case involving their former boss or mentor. That’s not precisely the relationship here, and, of course, there is no exact case law since Trump is the first ever president to be indicted. But judges err on the side of caution to avoid the appearance of impropriety, and here, combined with her conduct in the earlier case, this might be a factor to consider, although it’s unlikely it would suffice on its own.

If Cannon doesn’t recuse voluntarily, prosecutors will likely have to file a motion requesting the recusal to take the issue forward. This is always a difficult move for prosecutors, one to be avoided unless the circumstances are extreme, like they are here. Under the rules, if a judge denies a request by one of the parties that they recuse, “the Judge shall issue a ruling on the record, stating the grounds for denying the request.” Provoking that statement alone would be worthwhile.

Most likely though, prosecutors will wait for Cannon to make an objectionable ruling that can be appealed pre-trial, and use that opportunity to request that the 11th Circuit order the Chief Justice in the Southern District of Florida to reassign the case on remand. Of course, this means delay, and delay here works in Trump’s favor. None of this is ideal, by any means. But this is the type of situation where the 11th Circuit protects its integrity and reputation by ordering recalcitrant judges to recuse. Prosecutors are likely to get their opportunity because Cannon, whose appointment of the special master and rulings in the earlier matter already demonstrated some inexperience and discomfort handling highly sensitive classified matters, will be called upon to make decisions and set appropriate procedures under a complicated statute, CIPA, the Classified Information Procedures Act, that governs the handling of classified material in a trial setting. Because those decisions can be appealed immediately, it seem likely that the government will need to take an appeal at some point and that will give it the opportunity to request recusal.

The selection of Judge Cannon unnecessarily complicates the trial of what would be a straightforward case of mishandling classified documents and obstructing an investigation into that conduct if the defendant were anyone other than the former president of the United States. Trump seems to get all the breaks, and this is a difficult one to stomach. But I continue to think the courts will sort this out, one way or the other.

The Washington Post discusses the possibility of violence in Miami due to Trump’s armed and hysterical supporters. This analysis is offered by Mark Berman. “Trump’s Miami court date brings fears of violence, rally plans. Law enforcement officials are monitoring online threats and potential gatherings of far-right extremists and marshaling more officers.”

Federal and local authorities on Sunday ramped up security preparations ahead of Donald Trump’s first appearance in federal court on criminal charges here, monitoring online threats and potential gatherings of far-right extremists while marshaling more police officers to be on duty.

Escalating violent rhetoric in online forums, coupled with defiant statements from the former president and his political allies, have put law enforcement officials on alert for potential disruptions ahead of Trump’s court appearance. He is facing a 37-count federal indictment, 31 of which allege he willfully kept classified documents in his possession after leaving the White House.

Authorities were monitoring plans for pro-Trump rallies in Miami, including one outside the federal courthouse on Tuesday purportedly organized by a local chapter of the Proud Boys, a far-right extremist group, some leaders of which were found guilty of seditious conspiracy in the Jan. 6, 2021, attack on the U.S. Capitol.

This article by interviewer and Executive Editor  Andrew O’Hehir–writing for Slate–suggests Trump is in deep trouble. “Trump’s “peril is extreme”: Former federal prosecutor on the historic Mar-a-Lago indictment. Charges against Trump almost “open and shut,” says Dennis Aftergut — and prosecutors will ask for prison time.”

I’ve read a fair number of criminal indictments in 30 years as a journalist, and by any standard this one seems extraordinary. I’d like to ask you, as a former federal prosecutor, how you perceived it in a number of different ways. First of all, what was your general impression of Jack Smith’s indictment overall — as a work of legal argument and narrative, and also as an event in legal and political history?

The narrative here is one of betrayal of a nation and its most precious secrets by a man who was the commander in chief for four years and who seeks that mantle again. There’s never been anything remotely like it.

Just think about it. The disregard for the lives, the risk and the individual courage that goes into gathering information vital to our national security and our safety is incomprehensible. There is no way for the brain to wrap itself around what is described in this indictment, the violation of sacred trust, a one-man demolition crew working against the American intelligence system that has been built, brick by brick, over 80 years.

With the kind of conduct alleged in the indictment by the former occupant of the highest office in the land, how is any foreign intelligence service supposed to trust us to keep information confidential, to protect its methods of collecting our enemies’ secrets or the identity of its sources?

It could take years, if not decades, to recover from the damage.

In more concrete terms, how does that conclusion emerge from this indictment?

Put together three basic pieces: 1) The bone-chilling nature of the materials unlawfully taken from the White House; 2) the apparent exposure of those materials at Mar-a-Lago; and 3) what we know from public reporting about security there and our nation’s enemies whose agents may have breached it.

First, focus on paragraph 77. It lists, with brief descriptions, 31 documents, many of which have what are called “compartmentalized” Top Secret markings.

“Compartmentalized” means “information about certain intelligence sources and methods.​​” “Top Secret” signifies information that would cause, if revealed, exceptionally grave harm to the nation’s security. Compartmentalized top secret documents are kept in secure structures, or SCIFs — the fortified rooms that protect against electronic surveillance or other efforts by outside parties to obtain the information.

Examples on the list of materials that Trump took to Mar-a-Lago include documents “concerning nuclear weaponry of the United States,” “nuclear capabilities of a foreign country” — which could be North Korea, Russia, China or Iran, we just don’t know. The materials Trump possessed at his resort home included documents “concerning military attacks by a foreign country,” “timeline and details of attack on a foreign country,” and “military contingency planning of the United States.”

These are materials that almost anyone hostile to the interests of the United States would love to get their hands on. Which is why they should never be held at easily penetrated places like Mar-a-Lago.

Second, the indictment describes — and indeed shows, via an abundance of photographs — boxes of documents stacked in exposed locations: A ballroom stage, a bathroom shower and in one instance, a Secret document “concerning military capabilities of a foreign country” that had spilled out of its box and onto the floor in a storage room. (The indictment does not say whether the room was locked at the time.)

Visual journalist Art Lien says Supreme Court Justice Sandra Day O’Connor (center top) was known for being hard to capture on paper.
 

I would really recommend you read the complete interview.

David Aaron from Just Security uses U.S. sentencing guidelines to estimate how much jail time Trump might face.

The base level for willfully retaining national defense information in violation of 18 U.S.C. § 793(e) is 24 — but increases to 29 if the information at issue was classified Top Secret, as alleged in the Trump indictment (§2M3.3). A defendant’s leadership role in a crime could add 4 points if the defendant was an “organizer or leader” of criminal conduct that involved at least five people or was “otherwise extensive” (for example, conduct that relied on the assistance of unwitting outsiders), or 2 points if the defendant organized or led criminal activity that involved fewer people and was not as extensive (§3B1.1).  The Indictment alleges the defendant was the organizer or leader of criminal conduct that involved at least five other people, whether or not all were witting (Waltine Nauta, Employee 2, and Attorneys 1-3), so the defendant’s attorneys will consider calculations based on the 4-point increase.  Conversely, point deductions are available if a defendant had a minimal or minor role (§3B1.2).

The Guidelines add 2 points for a defendant’s abuse of public or private trust to commit the crime (§3B1.3).  Courts routinely add those extra points in Section 793(e) cases because the defendant usually came into possession of national defense information while in a position of public trust, and indeed by virtue of that position.  Two additional points are added for a defendant’s willful obstruction of the investigation, prosecution, or sentencing of the offense at issue (§3C1.1). (The obstruction points are not applied to violations of statutes that themselves prohibit obstruction except in certain circumstances.)

A defendant’s acceptance of responsibility, such as by pleading guilty, provides a 2-point reduction in offense level. An additional 1-point reduction is available at the prosecutor’s discretion (if applied, the court would also need to approve the basis for the reduction following a motion from the government).

For an individual count of 18 U.S.C. § 793(e), then, a potential offense level could consist of:

Base level with Top Secret: 29
Leadership role: 4
Abuse of trust: 2
Obstruction: 2
Total: 37

For a defendant with no prior criminal convictions, an offense level of 37 yields 210 to 262 months (17 1/2 to almost 22 years). A defendant who accepted responsibility could reduce that range to 151 to 188 months if the prosecution agreed to deduct the third point.

The base levels for the other charges in the Indictment are lower.  Section 2J1.2 applies to “obstruction of justice” charges such as the Tampering and related Conspiracy counts, the Concealment count, and the Scheme to Conceal and False Statements counts. The base level for these crimes begins at 14, but that increases to 17 if the offense “resulted in substantial interference with the administration of justice.” The base further increases to 19 if the court finds that the offense was extensive or involved “any essential or especially probative record,” which the allegations in the Indictment, if proved, would likely support. To account for obstruction of investigations of particularly serious crimes, however, the Guidelines direct the court to apply Section 2X3.1 instead of 2J1.2 if, as alleged in the Indictment, the offense involved obstructing a criminal investigation and Section 2X3.1 would yield a higher offense level. Section 2X3.1 provides a base level of 6 below the underlying offense, which in a Section 793(e) investigation involving Top Secret documents would result in a level of 23.  The “leadership role” and “abuse of trust” increases would still apply, but the obstruction increase does not apply to sentences calculated based on Sections 2J1.2 or 2X3.1.  As a result, for a conviction of one of these counts, a potential offense level could consist of the following (I’ve included alternate calculations based on 2J1.2 to illustrate the difference in guidelines)…

Base level using 2X3.1: 23 (or 19, as alleged, under 2J1.2)
Leadership role: 4
Abuse of trust: 2
Total: 29 (or 25)

For a defendant with no prior criminal convictions, an offense level of 29 yields 87 to 108 months (7 1/4 to 9 years) and an offense level of 25 yields 57 to 71 months (4 3/4 to almost 6 years). A defendant who accepted responsibility could reduce those ranges to either 63 to 78 months or 41 to 51 months if the prosecution agreed to deduct the third point.

The question of whether sentences would run concurrently or consecutively has come up.  The answer will depend on a variety of factors, not least of which include the evidence at trial, the count or counts of conviction, and “grouping” under Section 3D1.2.  Section 5G1.2, which addresses sentencing on multiple counts, provides that if the sentence imposed on the count with the highest statutory maximum is sufficient to implement the total punishment, then the sentences on multiple counts will run concurrently.  But if the sentence on the count with the highest statutory maximum is insufficient, the court can run sentences consecutively to achieve the target sentence.

No wonder Melania took off for New York City Today!

This has gotten very long. So, we should just take it all down the thread!

What’s on your reading and blogging list today?