[Judge Cannon] has studiously avoided issuing an order that could give special counsel Jack Smith’s team an opening to appeal and seek her recusal.
Her latest order is a case in point: It floats legal conclusions that could lead to a swift reversal and force her recusal, but it requires the parties only to “engage with” these lawless suppositions, which doesn’t give an appellate court much to grab onto. In short, Cannon is making mischief in Trump’s favor while dodging appellate oversight.
My earlier post on Loose was titled "What if Cannon Doesn't Rule?" I answered that she won't rule; I mildly criticized Jack Smith for drawing her a red line to avoid and simultaneously lining the path to a Trump acquittal with bread crumbs; and I thought Smith should have her on a short game clock to rule or he would appeal.
Then the above article, from March 20. "Engage with"--that is clever, I have to give her corrupt mind credit! Actually, it's "must engage with". She "floats" pro-Trump legal particles that are dancing in her head, and asks, no compels, the lawyers to dance with those loose particles. "I'm not saying I'm going to rule that way, (or rule any way on any thing), I'm just dancing. Come, dance with my loose atoms." No, it's not that twee. "You must dance with my loose atoms."
It was an Order. But, Harry Litman writes above, there wasn't enough meat to it, just loose atoms, unlikely to be taken up on appeal. Hmm. So, it was an Order, so-styled, but not merely styled an Order, belied by the text, e.g. "Order. I have these loose atoms dancing in my brain. Would you like to dance? You don't have to if you don't want to;" the style, but not the substance.
No, this was an Order that even in its styling was compulsory: "ORDER REQUIRING PRELIMINARY JURY INSTRUCTIONS...", and in the body of the Order: "shall file", "shall take care to specify", "must engage" and must "offer alternative draft text that assumes each scenario to be a correct formulation of the law..." It was even footnoted:
1 Instructions beyond the substantive contours of Counts 1 through 32 are not part of this Order,
but defenses inextricably intertwined with the statutory definitions are so contained. The standard
twenty-page limit for memoranda of law does not apply to the ordered submissions.
2 Deadline for final proposed jury instructions and verdict forms to be set by separate order.
3 Any separation of powers or immunity concerns shall be included in this discussion if relevant. [That after scenario (a) I didn't read either Response closely enough to see if they "engaged with" those issues.]
So, it was an Order, it compelled engagement, and it had a deadline for compliance. By any other name it was an ORDER.
Can you be lawfully Ordered to "engage with"? "Okay, I'm engaging with it but I'm not going to get married to it until there's a marriage Order." What if Jack Smith had answered that way and refused to dance up to the altar? Litman answers:
...Smith fac[es] a tricky choice. He can adhere to the letter of the judge’s order and acquiesce in potentially laying the groundwork to dismiss the case at an irremediable point. Or he can refuse to go along, risk Cannon’s ire and try to position the prosecution to appeal if she actually does something reviewable.
Of course, we now know, that Smith did comply...at risk of the Nightmare Scenario. He didn't appeal.
What about an appeal, or now a motion to recuse, combined with all of her other inaction action? I guarantee you that the 11th Circuit Court of Appeals has read and re-read and re-re-read this Order and the Responses and are going, "Oh, let me at her. Please, Jack Smith, bring it up here. Can we drag it up ourselves?...No? frowny face." If combined with her inaction on the other motions, including motions to dismiss, and her inaction in setting a trial date, to require jury instructions to be prepared when you don't even have a trial date? I don't know what Litman thinks about a J'Accuse omnibus motion but the 11th Circuit has already reversed Cannon's ass dos.
Too clever by half? Did Cannon dance too close to the flame this time? That may sound like a weird consideration when she has been such an artful dodger already, but that is why I pose the question. This jury instruction Order really was weird. Cannon's inaction on every other motion waiting for an order is telling. I have concluded that this Order writes in bold and all caps Cannon's intent to sink this case after jeopardy attaches. Above the Law thinks so, too. Litman thinks,
"Cannon may have hit upon a strategy that gives Trump the delay he wants and then dismisses the case once a jury has been sworn in — while never exposing herself to being reined in or forced off the case by the 11th Circuit."
By the 11th Circuit. That is who Cannon is dodging. You think the 11th Circuit doesn't think that, too? You think they see it and are sitting there steaming? I do!
The more I think about this, Jack Smith needs to shorten his game clock. He can't let this drag on. It is headed over a cliff. He should "engage with" General Garland on DOJ policy re recusal and file some colorable legal appeal. I'm convinced that given the opportunity, the 11th Circuit will snap it up in a heartbeat and get rid of Loose Cannon.