Trump's Classified Docs Theft: Mar-A-Lago, FBI Subpoenas, Searches & Seizures - DOJ, Garland, GOP Madness - Spy Hard

[W. Kevin Vicklund]

cannot wait to see the reply by the loose cannon

What reply? She gets no say at Circuit Court.

[RTH10260]

cannot wait to see the reply by the loose cannon

What reply? She gets no say at Circuit Court.

doesn't she have to reason her choice to throw the case out? Or is team #45 tasked with standing their ground that the case has ended?

[W. Kevin Vicklund]

cannot wait to see the reply by the loose cannon

What reply? She gets no say at Circuit Court.

doesn't she have to reason her choice to throw the case out? Or is team #45 tasked with standing their ground that the case has ended?

Her reasoning is in the dismissal. It's the job of the turnip's lawyers to convince the panel she wasn't recovering from a lobotomy when she wrote it.

[Dave from down under]

Cannon / Trump lawyers

What’s the difference???

[RVInit]

I would love to see the 11th Circuit take it upon themselves to remove her from the case. I have no idea if they can even consider doing that if not asked. She so clearly abused her powers in the search warrant thingy, and prior to taking Clarence Thomas' hint and throwing this case out, she so clearly was dragging her feet allowing time for Trump to possibly be elected. This case should already have gone to trial by now. A serious judge would have moved this case right through, given the seriousness of the behavior and the fact this jackass could end up getting elected. This was a complete miscarriage of justice.

[bob]

I would love to see the 11th Circuit take it upon themselves to remove her from the case.

It is possible. It is unusual for an appellate court to reassign a case without being asked to do so, but it happens.

[RVInit]

I would love to see the 11th Circuit take it upon themselves to remove her from the case.

It is possible. It is unusual for an appellate court to reassign a case without being asked to do so, but it happens.

Thanks for responding to this. I didn't know it was a possibility for an appellate court to consider removal of a judge without a specific motion or whatever legal means are usually used to request such a thing. Something to hope for!!!

[p0rtia]

Guess I'm chime in to say that If Jack Smith doesn't ask for her removal at some point, I'll be disgusted.

[RTH10260]

Guess I'm chime in to say that If Jack Smith doesn't ask for her removal at some point, I'll be disgusted.

My guess is that he will ask once the appeal jugement is out. He may even wait to see if Cannon gets the message all on her own (with whispered advice from fellow judges) and asks for the case to be transferred to some other unlucky judge.

[bill_g]

Semantics and political maneuvering. Gotta love it. In the 90's we had a regional vote for a new water treatment plant. It was hotly contested, but voters approved it by a good margin. It was on the order of 65/35. So, those opposed got busy appealing the decision. They successfully got a judge to believe that even though the voters approved constructing a new WTP, nobody said how we would use the water. Really? I'm gonna build a road, but not drive on it?

[Tiredretiredlawyer]

Guess I'm chime in to say that If Jack Smith doesn't ask for her removal at some point, I'll be disgusted.

Michael Popok thinks Jack didn’t ask for reassignment to avoid Trump politicizing the appeal even more. He termed it “a deft move”. He says it’s so obvious the reassignment is necessary and the Court of Appeals can do it on its own.

[p0rtia]

Guess I'm chime in to say that If Jack Smith doesn't ask for her removal at some point, I'll be disgusted.

Michael Popok thinks Jack didn’t ask for reassignment to avoid Trump politicizing the appeal even more. He termed it “a deft move”. He says it’s so obvious the reassignment is necessary and the Court of Appeals can do it on its own.

Yeah, I heard that. I am a huge Popok fan, but I think he's full of shit on this. He is an apologist for high profile lawyers and DAs. I enjoy his enthusiasm, but this is next door to gaslighting. We are so far past being afraid of "politicizing" it isn't funny, for all the reasons we discuss here day in and day out. (I'm sure that will be the deft reason given for Merchan not sentencing fuckhead next month.)

There is a madman trashing our country and what's left of our legal system who is in cahoots with a corrupt MAGA SCOTUS that has ripped up the Constitution. Backing off at every step (which is what has been happening for effing years) is part of the problem.

[Tiredretiredlawyer]

[p0rtia]

PS: The Court of Appeals could have removed Cannon at any point in the past year, and they haven't. If Smith doesn't ask for it, there is no reason to think they would take this extraordinary step. At least, so say the various talking legal heads I obsess over.

[Slim Cognito]

It's been a couple of days so I might misremember, but I believe Glen kirschner theorized he didn't add the request to the appeal to keep it neat and clean and (hopefully) the request to remove Canon will come later.

[chancery]

PS: The Court of Appeals could have removed Cannon at any point in the past year, and they haven't. At least, so say the various talking legal heads I obsess over.

Without an appeal or mandamus pending? Source?

[p0rtia]

PS: The Court of Appeals could have removed Cannon at any point in the past year, and they haven't. At least, so say the various talking legal heads I obsess over.

Without an appeal or mandamus pending? Source?

I only repeat what I have heard on the TV and pods.

You just got a quote above illustrating the point from TFT: "He [Popok} says it’s so obvious the reassignment is necessary and the Court of Appeals can do it on its own."

Next time I hear something, I'll nab the source. I do know that Andrew Weissman said earlier in the week, when this subject came up, that it was unlikely. I haven't heard anyone say it's impossible.

[bob]

PS: The Court of Appeals could have removed Cannon at any point in the past year, and they haven't. At least, so say the various talking legal heads I obsess over.

Without an appeal or mandamus pending? Source?

I only repeat what I have heard on the TV and pods.

You just got a quote above illustrating the point from TFT: "He [Popok} says it’s so obvious the reassignment is necessary and the Court of Appeals can do it on its own."

Next time I hear something, I'll nab the source. I do know that Andrew Weissman said earlier in the week, when this subject came up, that it was unlikely. I haven't heard anyone say it's impossible.

An appellate court's ruling on something before it, and then (on its own) reassigning the case to a different district judge is unusual, but it happens. The appellate court usually concludes with, "Based on the foregoing, we reverse. Due to the nature of the errors, we direct the district court to assign the case to a different judge." That is, the reassignment is rolled into the ruling and remedy.

An appellate court, with nothing pending before it, reassigning a district court case to a different judge would be extremely extraordinary (if not unprecedented). It would not be business as usual or even business as semi-usual.

I don't read too much into the prosecutor's not asking for reassignment in the opening brief. There are obvious policy/political considerations. And there will be other opportunities to do so. So the window hasn't closed to do so; a baby might have been split and the ask might have been deferred until after the election. And there may be the tactical choice to let the court make the decision without an express ask; judges read the news and are well aware of the desire for a different court to hear this.

And, more basically, the decision to reassign ultimately belongs to appellate judges (as in, real humans with baggage and foibles); there are also philosophical (and political) considerations at play. The prosecutor may have simply read the room and concluded the reward isn't worth the risk (because you can credibly only ask once). Or, perhaps would like to know exactly which judges will be hearing the case before committing to the request.

[chancery]

Here's the thing. Courts of appeal don't have jurisdiction over a case in a trial court until it comes up to them, by way of appeal or a writ (mandamus). That's the source of their power over a case, and without that power, they are bystanders.

Once an appellate court has jurisdiction, it has the rarely-exercised power to assign the case to another judge. And the appellate court can exercise this power sua sponte, that is, even if no party has requested a different judge. That's even more rare, although it happens.

What doesn't happen is for a court of appeals on its own to take jurisdiction of a case away from the trial court, without any appeal or mandamus petition pending, for the purpose of removing the trial judge.

So, with respect, it's nonsense to say that the Eleventh Circuit "could have removed Cannon at any point in the past year."

I won't say it's literally impossible in any U.S. court, since there may be a state with some squirrelly rule that makes it possible for an appellate court to grab jurisdiction from a trial court. And under the current Supreme Court, it's hard to anticipate what new revelations will be handed down.

But under the law as we currently know it, such a thing would be orders of magnitude less likely than it would be for a judge to be removed as part of the resolution of an appeal. And as you undoubtedly know by now, it is very, very unusual for a court of appeals to remove a trial judge as part of the resolution of an appeal.

[johnpcapitalist]

Guess I'm chime in to say that If Jack Smith doesn't ask for her removal at some point, I'll be disgusted.

Michael Popok thinks Jack didn’t ask for reassignment to avoid Trump politicizing the appeal even more. He termed it “a deft move”. He says it’s so obvious the reassignment is necessary and the Court of Appeals can do it on its own.

IANAL and IANEASECR, so this is merely conjectural, but... If Smith's intent is to avoid being seen as political before the election, if Trump loses, might he be able to amend the appeal to ask for Cannon's removal as a remedy, once there's no way for people to allege election interference?

[noblepa]

PS: The Court of Appeals could have removed Cannon at any point in the past year, and they haven't. If Smith doesn't ask for it, there is no reason to think they would take this extraordinary step. At least, so say the various talking legal heads I obsess over.

He might be holding back to avoid pissing her off even more, should his request be denied. Like they say, if you attack the king, you'd better kill him with the first blow. Otherwise, he'll come back at you with a vengeance.

I'm not sure how she could get any worse or more biased in Trump's favor and against Jack Smith, but, if he requests her dismissal and the request is denied, she might figure out a way to do so.

Unless Smith is absolutely sure that his request will be granted, or that he has nothing left to lose, he might be prudent to avoid invoking the "nuclear option".

[p0rtia]

Thanks, Bob and Chancery! Soooo informative.

I'll amend my comment to say that multiple commentators have said that Jack Smith does not have to request that the 11th Circuit reassign the case for them to decide to do so on there own. Presumably this would happen after Jack Smith had appealed something. Does that work?

[chancery]

Yes. Jack Smith has indeed appealed something, the dismissal of the indictment, which is perhaps the most basic kind of prosecution appeal, thus giving the Eleventh circuit what it hasn't had since the indictment was issued, namely power to remove Cannon.

It's still unlikely that Cannon will be removed this go 'round.

It's plausible to me that Smith's staff has been working on a mandamus petition seeking Cannon's removal, that it's already gone through many drafts, and that he won't pull the trigger until the Eleventh Circuit has reversed the dismissal order, and then Cannon does a couple more bad things.

If that's the strategy, it makes sense to me. The appeal of the dismissal is strong and should win, but there's little to be gained and everything to lose by confusing the issue with a more questionable request that Cannon be removed. If the Eleventh Circuit panel is truly offended by Cannon's conduct, they have power to remove her sua sponte. If they are not, nothing the government can say is likely to change their mind.

And since Cannon is not likely to change her ways, the government will increase its chances of being able to get rid of her by waiting.

[realist]

As bob would say, concur.

[bob]

I would add we know there are zillions of judicial complaints about Cannon. And those are in the 11th Circuit.

While it is theoretically possible those complaints could lead to her removal, they won't. They will be silently denied, as bad judging isn't a basis for a complaint. (That's what appeals are for.)