Nailing Down the Loose Cannon
Judge Aileen Cannon has so far managed to delay the trial and avoid committing reversible error. That may end soon.
For nearly a year, Judge Cannon has successfully delayed Donald Trump’s trial for espionage and obstruction by sitting on numerous motions without ever resolving them. Her goal has been fairly transparent: run out the clock before the election. So far it’s working.
It’s difficult to get a judge like Cannon removed from a case unless she’s committed serious reversible error. Judge Cannon has avoided that to date either by refusing to rule on numerous motions, or hedging her rulings so much she can’t be second guessed and brought up on appeal, at least not at this point.
But in an ironic twist, all that may have changed, thanks to the defendant. Last week, Trump began falsely accusing the FBI of intending to use “deadly force” against him when they searched Mar-a-Lago, even though that language is boilerplate in any federal warrant and applies only should the subject resist, and even though Trump wasn’t even home at the time.
Special Counsel Jack Smith has now demanded that Trump’s pretrial release conditions be modified to prevent him from putting a target on FBI agents, some of whom will testify at trial. In response, Trump’s lawyers have moved to strike the motion and for sanctions, claiming it was brought in a manner contrary to rules that require the parties to “meet and confer” in advance of a motion.
This may feel like a lot of moving chess pieces, so I’ll break it down for you today. I’ll first explain what led to Trump and his allies making wild accusations about the FBI trying to kill him and how a lot of the fault lies with his own counsel. I’ll spend a bit of time walking through how the lie got amplified and spread across right wing media and to Trump supporters.
Then I’ll walk through why Jack Smith’s office likely brought the motion under such a hurry-up offense, filing it on the Friday before the Memorial Day weekend. Finally, I’ll touch briefly on the response from the Trump side, and then explain where this leaves us procedurally and why it feels like a smart move by the prosecutors.
Trump’s lawyers misquote DoJ policy in their papers
I’ve never quite seen anything like this, but it’s Trump so I suppose we should expect the unexpected. Here’s how this all got started. (Warning: Eye roll zone ahead.)
Back in February, Trump’s lawyers filed a motion to suppress evidence obtained through the search of Mar-a-Lago. In that motion, his attorney Chris Kise cited a Justice Department Operations Form which had a policy statement on the “Use of Deadly Force.” Crucially, Kise misquoted the policy as saying, “‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’”
I say misquoted because Kise left out a key word. It actually reads “may only use deadly force when necessary.” Moreover, the ellipses in the brief leave out important context: “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.”
Kise cited this policy but oddly never claimed that any agents had acted inappropriately in following standard procedure. The whole question of whether any force at all would be necessary was moot because Trump wasn’t even home, and no one resisted the search.
Indeed, this policy statement is standard operating procedure for any warranted search by federal authorities. The policy puts a limitation on the use of deadly force, allowing it “only when necessary” where the subject of the search poses a high degree of danger to the agents or others. It makes good sense, and it’s definitely not a basis for what happened next.
Trump goes beserk
From this misquote by Kise, something very Trumpy happened. Last Monday, Trump’s lawyers filed a redacted version of their motion and the exhibits on the public docket. The next day, on Tuesday, and apparently because Rep. Marjorie Taylor Greene (Q-Moscow) showed the policy statement to him, Trump went public with a wild accusation posted to his Truth Social platform:
Crooked Joe Biden’s DOJ, in their illegal and UnConstitutional Raid of Mar- a-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.
Rep. Greene amplified this accusation, claiming credit on the X platform for flagging the issue for Trump:
I made sure that he knew.
The Biden DOJ and FBI were planning to assassinate Pres Trump and gave the green light.
Does everyone get it yet???!!!!
What are Republicans going to do about it?
Other Trump allies got in the game. Rep. Paul Gosar (F-AZ), highlighting the misquoted Kise language in the motion, posted on X that President Joe Biden “ordered the hit on Trump at Mar-a-Lago.”
And right-wing provocateur Julie Kelly also cited the misquoted Kise language in her post on X that went viral with 9.9 million views as of today, claiming
Tons of new unsealed filings on classified docs case—I will try to post as much as I can (there goes the workout) but this is mind-blowing.
FBI authorized the use of deadly force at Mar-a-Lago
All of this was factually wrong from the get go. But it was also politically explosive and dangerous. People like Trump and Greene feed off of such things and love to cast themselves as victims, and bad faith writers such Julie Kelly gain notoriety for baseless claims.
Like I said, total eye roll moment.
Right wing media piles on
As if on cue, Fox News and other right wing media then picked up the non-story and ran with it. As the Daily Beast reported, Fox host Jesse Watters wondered aloud whether Biden was saying it “would be okay to kill Donald Trump.”
One goal of all this noise likely was to create a counternarrative to some otherwise bad news for Trump. The unsealed court records had provided a glimpse into just how illegally Trump had acted with the classified documents. One federal judge in D.C. had even provided a description saying there was “strong evidence” of Trump’s criminality. As CBS News reported,
[I]n a 2023 judicial opinion that was unsealed Tuesday, former Chief Judge Beryl Howell of the federal district court in Washington, D.C., wrote it was “likely” Trump had gone further than allegedly misleading his attorneys, possibly “instructing his agents to avoid the surveillance cameras he then understood to have been deputized by the government.”
The FBI tries to contain the lies
It’s rare for the FBI to publicly comment on an ongoing case. But here were top GOP politicians, including the ex-president and presumptive Republican nominee for president, accusing the Bureau of plotting with President Biden to use deadly force against Trump.
The FBI was forced to issue a rare statement:
The FBI followed standard protocol in this search as we do for all search warrants, which includes a standard policy statement limiting the use of deadly force. No one ordered additional steps to be taken and there was no departure from the norm in this matter.
Let the fundraising begin!
As Media Matters noted, the counternarrative of Biden wanting to assassinate Trump during the search was facially absurd. “Why would the Biden administration issue assassination orders in writing and then conduct the Mar-a-Lago search on a date specifically selected because Trump would be in New York instead?”
But the ridiculousness of the claim, and even the later pushback from the FBI, didn’t stop Trump from sending out a fundraising email around it. Last Tuesday, Trump’s campaign sent an ask out to its mailing list stating that the government “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.”
Again, all verifiably false.
Smith’s office moves quickly to safeguard agents
The people who were really “in danger” here were not Trump and his family, who weren’t even at Mar-a-Lago. By blasting out these lies, Trump put targets on the backs of the federal agents involved. He has now baselessly accused them of trying to commit political violence at the direction of President Biden.
Trump knows that this kind of hyperbolic messaging will motivate stochastic terrorism on his behalf. This kind of terrorism assumes there are Trump minions out there just crazy enough to take this all at face value and act to “protect” him.
That’s why Jack Smith’s office moved on Friday to put the matter before the court and on the record. The prosecution’s motion sought to modify Trump’s conditions of release to bar him from making further statements that pose a significant danger to law enforcement agents.
Specifically, Smith told the court that Trump is “falsely suggesting that they [agents] were complicit in a plot to assassinate him,” and that his words are exposing those whose identities could become public as trial witnesses “to the risk of threats, violence, and harassment.”
Trump’s response brief
Last night, Trump’s team filed its response, and boy are they angry—meaning of course their client is angry.
Trump demands that Jack Smith’s entire motion be stricken and that sanctions be imposed upon all of the attorneys involved in filing it, on the grounds that the government failed to adequately “meet and confer” with them before filing it, and that filing it on the Friday before the Memorial Day weekend was intentional.
It takes a lot of chutzpah to move to strike an entire motion and for sanctions when the root cause of the problem is your own misquoted citation in a brief, which your own client and his allies took to a whole new MAGA level.
Kise’s main gripe appears to be that the government refused to meet and confer properly with defense prior to filing the motion. The prosecutors, however, felt they had no choice but to move rapidly given Trump’s continuing false claims and targeting of the FBI. As it says in Footnote 1 in their motion,
The Government has contacted counsel for defendant Trump, who stated that they object to the Motion and the timing of the conferral on a holiday weekend; it is their position that the Government has not provided an opportunity for meaningful conferral. They do not believe that there is any imminent danger, and asked to meet and confer next Monday. However, within just the last few hours, Trump has continued to issue false statements smearing and endangering the agents who executed the search. See https://truthsocial.com/@realDonaldTrump (“reTruthing” statement claiming that the FBI was authorized to use “‘Lethal Force’ on Trump or anyone at MAL – WHILE the FBI/DOJ plants evidence to frame Trump!!!”).
Trump’s lawyers also claim that the risk of violence isn’t real or actionable because Trump didn’t target any specific FBI agent. Merely putting it out there that the FBI was targeting him for violence, they argue, isn’t a specific enough threat.
So what now?
Judge Cannon may, and probably will, latch on to the local rules regarding meeting and conferring and could even kick the motion or require the parties to meet and confer and amend their papers before setting it for a hearing. Or she could do what she normally does and simply sit on the motion, refusing to schedule it at all.
On this score she might be more tempted than usual because she faces dangers on both sides. On the one hand, she can’t be the federal judge who puts additional speech restraints on Dear Leader. But on the other, if she rules against the government, that becomes immediately appealable to the 11th Circuit, which may not look favorably upon what she and Trump have done here.
If she simply sits on the motion, however, the Special Counsel isn’t out of options. As Joyce Vance notes in her substack today, a motion to amend pretrial conditions of release is a matter that the government may take up early with the appellate court under what’s called a “writ of mandamus.” That admittedly sounds like a Harry Potter incantation, but if you’ve been with me for a while you may recall it as a rare legal spell, one that asks the appellate court to issue a mandate, in this case compelling Judge Cannon to rule one way or the other. (For you legal nerds, the statute governing this is 18 U.S.C. § 3731, which as Vance notes authorizes the government to appeal if a trial judge denies a motion to modify the conditions of release.)
That’s why, in the end, Jack Smith’s move here was noteworthy. Trump is now on notice that the government is seeking to limit his false claims about the FBI and make it part of his release terms. That could put some pressure on him to end his dangerous nonsense about FBI assassination attempts. And Judge Cannon is also on notice that she eventually has to do something regarding this motion, or she could face a writ of mandamus.
A strike against her by the 11th Circuit could lead to a motion to reassign the case on bias grounds. It may not, and probably will not, happen in this particular instance. But Smith is looking to stack up some wins that together make a strong case to the appellate courts for removing her later. Judge Cannon seems keenly aware of this possibility, which may explain why she has not made any rulings that could lead to immediate appellate review.
We shouldn’t expect that this motion is going to change the trajectory of the case prior to the election. Even if Judge Cannon were booted now, the trial would never happen before November. We must instead, and resignedly, hope Smith can get her off the case eventually, or that she relents after the election (when Trump loses!) and moves ahead with the trial.
Is it against the law to pray that the criminal involved here simply dies in his sleep? Asking for a friend.
“Loose” Cannon has denied the motion under the failure to meet first, as expected. So Smith will now ask for cooperation which will be denied and then go back to Cannon again. She should be removed and disbarred.