*Updated with additions. First posted 4/4, 8:12 pm
Oh God, people are conflating two separate things, the Motion to Dismiss, filed I think March 14, and the March 18 jury instruction Order. The ruling today was on the MTD, NOT on the jury instruction Order. The confusion is a little understandable. Jack Smith's Response to the jury instruction Order was just two days ago, April 2. Cannon's Order denying the MTD, today, April 4. Cannon's Order today--ON THE MTD--has appended dicta (not the legal ruling) addressing the jury instruction “demand” by Smith to finalize the instructions now:
Separately, to the extent the Special Counsel demands an anticipatory finalization of jury
instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be
misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as
permitted by law.
"SEPARATELY", do you see that? "SEPARATELY" from my Order denying the MTD, which is up there, ABOVE this. So THIS IS NOT MY ORDER, this is just some loose atoms I have floating around in my brain, "TO THE EXTENT"-- Maybe Jack Smith didn't go to that extent—BUT IF HE DID! if he is DEMANDING of me, which he did not, you fucking dumb ass, then I decline his DEMAND if he meant to go to that extent which I don't know because I'm a moron.
“This complex case of first impression.” This is a simple case, elles and gees, it really is, it’s a simple possession case but…Cannon feels overwhelmed, not up to it. She is behaving and writing and thinking erratically. Therefore, she should not be on the case. She should remove herself but she won’t; therefore she should be removed.
My first reading of this Order, and every subsequent reading reinforced it, is that today’s Order was hastened by the severe, unanimous and warranted blowback that Cannon received from the separate, related but separate, jury instruction Order fiasco. She was chastened, embarrassed and frantic and she gave Jack Smith all that he could expect on the Motion to Dismiss. He was correct on the law and Cannon adopted his every argument and denied the Motion.
The dicta in the last paragraph, she should never have appended that, it was completely irrelevant, it was the very last thing that she wrote in a short order that was clearly tacked on as a desperate attempt to right as many of her wrongs as she could. She knew, every lawyer should know, that there was no legal ruling there. It means nothing legally substantive. Others read “demands” “unprecedented and unjust” as referencing the defendant, Trump. I have to concede that on that point they may be right and I wrong. All that I can say is that from first reading to last, and in context, context is critical in legal reading and interpretation, she was feeling wounded about Smith’s response; it was his “demands” on her that she felt were unjust criticism of her.
The public, even the legal public, is confused because of the temporal proximity of today’s Motion to Dismiss Order and the jury instruction Order that the lawyers responded to just two days ago. People, including lawyers, are hyperventilating that Cannon is being her same “quite smart” Machiavellian self, because she didn't strike the PRA defense from the case entirely. They are quoting Smith's language in the separate, OF COURSE RELATED, but SEPARATE Response to the jury instruction Order. A Response is not an affirmative motion. You don't get to say, "Well I put it in my Response." You have to file a fucking motion asking explicitly for the relief you seek.
Far be it for ME to come to Cannon's defense, and I am NOT. Cannon, and any judge, can only rule on a MOTION in front of her. God knows she hasn’t ruled on many! She ruled today on a Defense Motion to Dismiss the entire case based on the PRA that had been sitting on her desk for almost three weeks. She denied it. Why would Jack Smith file a Motion for Reconsideration, as one prominent lawyer urged, of a ruling that he won completely? I understand that Smith wants the PRA stricken from the entire trial. Then he should file a motion bringing that request before Cannon.
Politico gets it right:
Cannon’s ruling appears to leave Smith with the option of making a pretrial motion of his own to try to effectively shut down that defense by blocking Trump’s attorneys from raising such arguments about the Presidential Records Act in front of the jury.
It's called a Motion in Limine. Every criminal law attorney in America, both prosecution and defense, knows what a Motion in Limine is. Smith should file one of those.
