Jun.15

electoral-vote.com

Dem 51

   

GOP 49

Why the Judge Matters

The magistrate judge who handled Donald Trump's arraignment won't be the trial judge. That is scheduled to be Judge Aileen Cannon, unless she recuses herself or Special Counsel Jack Smith goes to the U.S. Court of Appeals for the Eleventh Circuit and asks it to disqualify her due to her evident bias, something the Court smacked her down for earlier in the case. She hasn't made any noise about recusing herself, so we have to imagine she dreams of President Trump appointing her to the Eleventh Circuit and maybe even to the Supreme Court if a vacancy opens up there. Smith hasn't talked about trying to get her off the case, but he never talks about the case except when he has taken an official action.

Does the judge matter? In the immortal words of Sarah Palin "You betcha." The judge has a lot of power over any case. Let us count the ways.

• Dismiss the charges: The judge could dismiss the charges right off the bat. No trial or anything. Done. However, if that were to happen, the DoJ could seek another trial with another judge and that wouldn't count as double jeopardy in the sense of the Fifth Amendment. That only kicks in after a trial has begun. Cannon surely knows this and is unlikely to go this route although she could do it to impress Trump and use it as a kind of back-door recusal and get brownie points at the same time.
  
  
• Delay, delay, delay: Cannon undoubtedly knows that Trump wants the trial delayed until after the election. Then he or some other Republican president could issue a pardon or a Republican AG could drop the case if it hasn't gone to trial yet. Trump's lawyers, assuming he can find some who are willing to stick it out with him, could make motion after motion with the intent of simply delaying the trial. For example, one or more lawyers could say they want to read the classified documents personally, so they need to get security clearances, possibly at the highest level. That will take the FBI months. If some lawyer is rejected, then Trump could hire a new one and he or she could also ask for a security clearance. Some lawyer could ask for a delay so he can be with his elderly mother who is sick. If the judge is "compassionate," she could grant the delay. There are dozens of (largely bogus) ways to gum up the works, but if a friendly judge agrees, gum it is.
  
  
• Classified evidence: The prosecution is going to say that Trump used secret and top-secret documents as bathroom reading. Suppose the defense says they aren't so secret and wants to present them to the jury. The military will go bonkers and strongly object. So then the defense will say: "OK, let's give them summaries of each document." There could be months of wrangling about exactly what is in the summaries, with back-and-forth between the defense and the military about what is acceptable. There is a Classified Information Procedures Act (CIPA) that governs such matters, but in the end the final call about what can be made public is up to the judge, who as far as we know, does not have a security clearance and might have to get one to see if a summary was faithful to the document. If her decisions are appealed, would the appeals judges also have to get security clearances? There is plenty of room for delays here.
  
  
• Attorney-Client privilege: Normally conversations between a client and his attorney are privileged, as are the attorney's notes. Jack Smith got a whole boatload of notes from Trump's attorney Evan Corcoran. They are very incriminating. And there is an exception to the privilege: If the client and attorney were conspiring to commit a crime, the privilege is dropped. Were Trump and Corcoran conspiring to commit a crime? That will be up to the judge to say.
  
  
• Prosecutorial Misconduct: The defense can claim that the prosecutors improperly pressured witnesses, obtained tainted evidence and more. These motions are always filed and nearly always dismissed. However, Cannon could accept some of them, removing some incriminating evidence from being admitted at trial.
  
  
• Jury selection: Both sides can veto potential jurors who they don't like for any reason using their peremptory challenges, but they get only a limited number of them. Once they are gone, jurors can only be dismissed for cause and the judge makes the call there. Suppose one juror says he dropped out of high school, drives a pick-up truck, is a day laborer, has an American flag in his front yard, and watches Fox News from 8 to 11 p.m. every day. The prosecution could ask the juror to be removed for cause, but the judge could simply say none of that indicates the inability to make an honest judgment based on the facts and the law.
  
  
• Rule 29 motions: During the trial, the judge could decide that Trump is innocent even before the jury met. A decision like that would be final and there is no appeal from it. Normally, such a ruling would only happen if the prosecution did something clearly illegal. Jack Smith knows the law very well and will be very careful about following it, but if the judge says he did something illegal, then the trial is over and there is no appeal.
  
  
• Hung jury: Suppose the jury can't agree on any of the counts. A judge could say: "Go back to the jury room and don't come out until you have a unanimous verdict. If I have to, I'll wait until both Hell and the Everglades freeze over." Or a judge could say: "Looks like a hung jury. Case over. Everyone is dismissed." In other words, it is up to the judge to determine how much pressure to apply to the jury to come to a verdict.

In short, a judge has enormous influence on any case, and especially a high-profile one like this. Of course, being in the bag for Trump will get a lot of hate directed at the judge, but it might be worth it for a seat on the Eleventh Circuit and maybe later the Supreme Court.

One thing that could have a big effect on the trial is that Judge Cannon has been on the bench only 2½ years and has almost no experience with criminal trials. She was assigned 224 criminal cases since she started the job, but 220 of them ended in plea deals and there was no trial. The four cases that went to trial took a grand total of 14 days. Now she may get to preside over the biggest criminal case in the nation's history.

She is the daughter of a Cuban exile and was a member of the Federalist Society at the University of Michigan Law School. That much is known about her. But it is her lack of experience that may be even worse than her bias. Trump's case will certainly raise issues that would vex even a grizzled veteran judge, let alone a rookie. Just one of them is how to protect the jury from the massive media coverage that will occur during the trial. It is expected to last at least a month. Cannon could lock all the jurors in a hotel every night, but that would radically reduce the jury pool as people with children and other responsibilities would then beg off. And she would also have to get the hotel to remove the televisions from their rooms and take away their cell phones, iPads, etc. This would result in a very cranky jury, some of whom might decide she needs to be taught a lesson so they ignore all of her instructions.

The chief clerk of the South Florida courts has stated that all the normal procedures were followed and Cannon was simply chosen at random by a computer, which is the normal way judges are assigned. The computer's algorithm takes into account who is an active judge and who has senior status, how many cases each judge currently has, where the cases originate, and things like that, but does not consider overt bias as a factor. (V)