No. of Recommendations: 6
What has become clear to me over the tenure of this proceeding in Cannon's court is that our judicial system was designed with up-front checks and balances that were assumed to keep bad (corrupt / incompetent) judges out of the system. Simultaneously, it was designed to MINIMIZE external checks and balances imposed upon active judges under the theory that if the up-front process kept the bad seeds out, the good seeds that got in should be immune from external influences if they were pretty much untouchable. The design of the judicial system did NOT account for the need to REMOVE significant numbers of bad judges from the bench. More importantly, the process included ZERO protections for live cases in the system whose proceedings become evidence of incompetence or corruption of a judge.
What does that mean?
A federal judge is not totally immune from accountability for their actions and decisions on the bench. Their verdicts can be overturned by an appelate court. Under limited circumstances, a federal judge can be removed from a case by a superior court. A federal judge can be impeached -- just like a President -- via majority vote in the US House and convicted by a two-thirds majority in the Senate triggering their removal.
The subtlety behind all of this is that while any particular chain of events might be illustrating the need for this process to occur, the law still prioritizes the rights of DEFENDANTS above the execution of any of these corrective processes against judges in their cases. Specifically what that means is that once a particular defendant begins flowing through the sequence of steps of prosecution being administered by a incompetent / corrupt judge, that defendant's double jeopardy protection begins. It functions in two ways. First, if at any point in the process, the judge dismisses the prosecutor's case WITH PREJUDICE, that case goes away entirely for good and all the charges in the indictment. Even if the judge's decision to dismiss was based upon horribly flawed interpretation of the law or pure corruption, the JUDGE can be subjected to impeachment proceedings to try to eliminate them BUT THAT DISMISSAL STANDS. The defendant is free and can never be prosecuted for those charges in federal court again.
Second, if the proceedings get to the point where a jury panel is convened for the trial, EVEN IF THE TRIAL NEVER BEGINS, and the judge decides to toss out key evidence or again make a ruling about the charges and dismiss them, that decision itself cannot be overturned and the defendant's double jeopardy protection is "attached" and prosecutors cannot start over with a different judge. The defendant goes free and those charges can never be prosecuted again.
That is why Jack Smith has been so cautious in his filings yet why he has become so frustrated.
Smith cannot file motions against what he THINKS Cannon is doing or might do in a future phase. He can only file motions regarding decisions Cannon ACTUALLY MAKES. Normally, no trial judge is asking counsel for defense and prosecution to draft jury instructions before the trial starts. First, instructions should be based upon what was actually presented in the trial so this is a logical twilight zone to begin with. Second, Cannon is actually asking for directions to be drafted according to two competing interpretations of the laws involved in the case, as if the choice of interpretation will be left to the JURY to decide. That's obviously incorrect. The jury doesn't decide on the interpretation of law. They decide whether the facts of the case MEET those described in the crimes being charged. Thirdly, BOTH INTERPRETATIONS Cannnon included in her ask to counsel were completely WRONG.
Smith has reached a point where he believes his initial suspicions about Cannon's modus operandi in this case are now incontrovertably true. At a minimum, Cannon is injecting unnecessary confusion into the proceeding simply for the purpose of delay which aids Trump. Additionally, Cannon understands where those magic danger points are in the entire flow of the proceeding and is attempting to reach one of those magic danger points to make an ACTUAL decision that can impair the government's case beyond repair while reaching a double jeopardy attachment point where the defendants go free and never have to face the charges again.
In effect, Smith is attempting to draw Cannon out to put a CONCRETE decision in writing that he can take to the appelate court to ask for her removal WITHOUT pursing any action that triggers her to dismiss the case with prejudice.
Cannon is trying to do the exact opposite. She is trying to avoid making any administrative decision that could trigger review by her superiour court and trigger her removal from the case. She is also trying to delay the case as much as possible while preserving the ability for the trial to empanel a jury at which point she can make a final decision that irreparably harms the case for prosecutors and shields the defendants via double jeopardy.
As mentioned previously, I think this is one reason prosecutors have NOT charged Trump with the documents related to his show and tell episode at his New Jersey resort. They COULD have been added to this case but doing so risked them being tossed out like the others by Cannon. By keeping those uncharged for now, Smith has preserved the chance to prosecute those charges in New Jersey and avoid any chance of drawing Cannon again.
The current checks and balances are virtually powerless to punish and correct situations where appointed judges are exhibiting this pattern of behavior. And years of intentional footdragging during the Obama Administration created a glut of empty seats on the federal bench which were filled during the Trump Administration, resulting in an outsized number of current federal judges having been appointed by a corrupt Administration partnering with a corrupt Republican bloc in the Senate. This level of toxicity is now distributed throughout the entire federal judiciary. We won't necessarily know it until we need the system to operate properly and find another Cannon sitting in the wrong seat at the wrong time hearing the wrong case.
WTH
