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Why "Take Me Out to the Ballgame"? Because it's one, two, three strikes, you're out. And a piece from lawyers Norman L. Eisen and Joshua Kolb yesterday points out that it's possible that strike three might just come this week for Judge Aileen Cannon.
There are two bits of background to note here. The first is that, in handling Donald Trump's Mar-a-Lago documents case, Cannon has already been reversed twice by the 11th Circuit. This despite the fact that the 11th is very conservative, and is more Trump-friendly than any federal circuit, excepting the 5th. Those are strikes one and two.
The second bit of background is that Cannon pretty clearly botched a critical evidentiary ruling. In brief, she found that Special Counsel Jack Smith and his team did not clear the bar necessary for her to grant anonymity to his witnesses, and that the identities of those folks would therefore be revealed. The problem is that the Judge imagines the bar is far, far higher than it really is, per federal law. So, Smith has asked her to reverse the decision, making a strong argument that she made a reversible error.
On Friday of this week, Cannon will issue her response to Smith's filing. And she's got two options. The first is to concede she blew it, and to change course. She might do that, but it's not been her general approach. The second is to tell Smith to pound sand. At that point, he will insta-appeal to the 11th Circuit, and he'll probably toss in a request for her to be removed from the case. Hence strike three.
Eisen and Kolb also point out another lingering, potential strike three, though of necessity this part of the piece is very speculative. There are ongoing hearings about what documents will be used in the case, and to what extent Donald Trump and his counsel will have access to them. These hearings are held behind closed doors, for obvious reasons, so there's no way for anyone who is not a part of the case to know what's going on with them. However, they often involved very technical points, of the sort that are challenging even to veteran judges. Cannon, of course, is not a veteran judge, so the odds of her flubbing one or more decisions is high. And the Classified Information Procedures Act allows any single decision here to be appealed. So, if she blows it on just one document, THAT could be strike three, too.
Please note that the three strikes thing is just a general notion, and is not any sort of formal rule. The point is merely that we could be very close to Smith pursuing the nuclear option, and possibly succeeding. We'll see what Cannon does on Friday. (Z)