Friday, April 12, 2024

Conservative judicial activist rejects Senate subpoena in SCOTUS gifts inquiry

The Senate Judiciary Committee sent a subpoena to conservative judicial activist Leonard Leo as part of a months-long inquiry into undisclosed gifts to Supreme Court justices and he promptly rejected it, calling the move “politically motivated,” reported the Washington Post.

“I am not capitulating to his lawless support of Senator Sheldon Whitehouse and the left’s dark money effort to silence and cancel political opposition,” Leo said of Sen. Dick Durbin (D-Ill.), the committee’s chairman, in a statement to The Washington Post.

The committee voted along party lines on Nov. 30 to subpoena Leo and Texas billionaire Harlan Crow following reports that Supreme Court Justices Clarence Thomas and Samuel A. Alito accepted — and did not disclose — free luxury travel and gifts from Crow, Leo and conservative donor Robin Arkley II.

Crow did not receive a subpoena Thursday, his spokesman Michael Zona told The Post.

In a statement to The Post, Durbin said sending a subpoena to Leo was a necessary step.

“Since July 2023, Leonard Leo has responded to the legitimate oversight requests of the Senate Judiciary Committee with a blanket refusal to cooperate,” Durbin said. “His outright defiance left the Committee with no other choice but to move forward with compulsory process. For that reason, I have issued a subpoena to Mr. Leo.”

“Mr. Leo has played a central role in the ethics crisis plaguing the Supreme Court and, unlike the other recipients of information requests in this matter, he has done nothing but stonewall the Committee. This subpoena is a direct result of Mr. Leo’s own actions and choices,” Durbin continued.

The committee did not respond when asked for comment on why only Leo received a subpoena. And when asked why so much time elapsed between the vote and Leo’s subpoena being sent, Durbin’s office declined to expand on his original statement.

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Thursday, April 11, 2024

Mangino talks with Nancy Grace about body parts case in Milwaukee

Watch my interview with Nancy Grace on Crime Stories with Nancy Grace on Merit St. Media discussing the disappearance of Sade Robinson and the body parts found in and around Milwaukee.

To watch the episode CLICK HERE

What might a jury look like for Trump's up coming New York criminal trial

 On April 15, several hundred New Yorkers will file into a Manhattan courtroom to be scrutinized by prosecutors and defense attorneys, probed and prodded for signs that they could sway — or stymie — the first criminal trial of a former American president.

Lawyers representing the State of New York and Donald J. Trump will help select the 12 people who will decide the former president’s fate, according to The New York Times.

The lawyers will try to divine unspoken political biases, opinions about law enforcement and other hidden agendas. The potential jurors, who could face public anger and threats if they are chosen, will be asked about their education, occupations, families and news sources.

The questions will drill slowly deeper: Potential jurors, all from one of the state’s most liberal counties, will be asked to reveal whether they volunteered for or against Mr. Trump. Perhaps most critically, they will be asked whether their feelings would interfere with their ability to be fair.

Seating the members of the jury and several alternates could take two weeks or more, and the choices may be as pivotal as any evidence presented in court.

“It’s the most important part,” said Arthur Aidala, a defense attorney whose firm has had many high-profile clients, including Rudy Giuliani, Mr. Trump’s former lawyer. “And the hardest part too.”

Mr. Trump faces several trials, but other cases are mired in delays. The 12 jurors in Manhattan who will decide whether he falsified business records to hide an affair with a porn star will bear unblinking scrutiny.

For conservatives, the trial is a chance to expose what they see as an abuse of prosecutorial power and a plot led by Democrats to derail Mr. Trump. For liberals, it could be the only test of the judicial system’s power over the former president before the election this fall.

The stakes of jury selection are particularly high for Mr. Trump’s team, which is aware of the former president’s poor standing among many in New York County — Manhattan, as most people know it — which overwhelmingly voted for President Biden in 2020.

Mr. Trump’s legal team sees the case as winnable, although some believe a full acquittal is less likely than the prospect of finding jurors willing to cause a mistrial by holding out against a unanimous guilty verdict, according to two people with direct knowledge of the discussions.

Two lawsuits. E. Jean Carroll, a writer who says Donald Trump raped her in the mid 1990s, filed two separate lawsuits against the former president. Here’s what to know:

Who is E. Jean Carroll and what does she claim? Carroll is a journalist and onetime advice columnist for Elle magazine. She wrote about the alleged assault in a 2019 memoir, claiming that Trump had attacked her in the dressing room of a department store. The account was the most serious of several sexual misconduct allegations women have made against Trump, all of which he has denied.

How did Trump respond to her claims? After Carroll’s account appeared as an excerpt of her book in New York magazine, Trump emphatically denied her accusations, saying that she was “totally lying,” that the assault had never occurred and that he could not have raped her because she was not his “type.”

On what grounds did Carroll sue Trump for rape? In 2022, New York passed a law giving adult sexual assault victims a one-time opportunity to file civil cases, even if the statute of limitations has long expired. Carroll subsequently filed a lawsuit, accusing Trump of rape and seeking damages. On May 9, a jury found Trump liable for the sexual abuse and defamation of Carroll and awarded her $5 million in damages.

Why did she also sue him for defamation? In 2019, Carroll filed a defamation lawsuit against Trump in New York for making disparaging comments and branding her a liar after the publication of her memoir. Carroll  sought additional damages in response to Trump’s insults after she won her rape lawsuit. The trial in that case ended on Jan. 26 with a Manhattan jury ordering Trump to pay $83.3 million to Carroll.

Mr. Trump’s lawyers want a jury that includes younger Black men and white working-class men, particularly public employees like police officers, firefighters and sanitation workers. Those who have had bad experiences with the legal system will also be prized by the defense, which has cast the case as politically motivated.

Polls have shown that voters who haven’t graduated from college tend to favor Republicans. So prosecutors, conversely, will probably be looking for more educated voters from Democratic neighborhoods, fishing for those who consume news from sources like MSNBC, known for its outspoken liberal hosts, and who are fond of late-night comedians like Stephen Colbert, who hosted a presidential panel with Mr. Biden on March 28.

Each potential juror will answer a uniform set of questions, and lawyers can ask follow-ups. Some queries may be designed to uncover biases against — or allegiances to — Mr. Trump, such as whether jurors have any feelings or opinions about how he is being treated in this case, or whether they believe a former president can be criminally charged in state court.

Each side will be able to remove a limited number of jurors without explanation, a so-called peremptory challenge. They can also ask for jurors to be removed “for cause” by providing specific reasons they believe a juror cannot be fair and impartial.

Those disqualifications are critical.

“It’s always most important to know who your worst jurors are going to be,” said Renato Stabile, an attorney who does jury consulting. “It’s jury deselection, not jury selection. Because you can only control who you are getting rid of.”

Unlike most trials, where many potential jurors are loath to serve, some may be actively trying to get seated in this case. Michael Farkas, a defense attorney, said that those who seem to be angling for the jury “are the people who are most likely to have a partisan agenda.”

Some may not be completely forthcoming.

“Getting 12 jurors you think you actually know is difficult enough in a regular case,” said Mr. Farkas. “In a case like this, both parties can pretty much rest assured that they are going to have people on the jury that aren’t being completely honest about how they feel.”

Mr. Aidala was blunter about potential jurors.

“They lie,” he said, adding, “People want to be on that jury because they think they’re going to write a book or they’re going to be on ‘20/20’ or ‘48 Hours’ or one of those things.”

Prosecutors are aware of the perils of trying famous defendants, and Mr. Trump is globally famous.

“People know who he is,” said Joshua Steinglass, a senior trial counsel with Mr. Bragg’s office, at a Feb. 15 hearing on jury selection. “They’re going to have an opinion one way or the other. They can like him or dislike him. They can still be fair jurors so long as that is not going to affect their abilities to fairly judge the evidence.”

In Justice Juan M. Merchan’s decision issued last week expanding a gag order on Mr. Trump, he suggested that the former president’s fame could influence deliberations.

“The conventional ‘David vs. Goliath’ roles are no longer in play as demonstrated by the singular power defendant’s words have on countless others,” the justice wrote.

Justice Merchan could wield significant influence. In courtrooms, jurors often look to judges for guidance. By repeatedly attacking Justice Merchan, Mr. Trump could risk punishment, and jurors could find themselves sympathetic to the judge trying to contain him.

The case itself is relatively straightforward: Mr. Trump faces nearly three dozen felony counts of falsifying business records related to a hush-money payment made to Stormy Daniels, a porn actress, to buy her silence in the waning days of the 2016 presidential campaign.

At first blush, Mr. Trump’s jury pool appears to be unfriendly: 70 percent of Manhattan’s 1.1 million registered voters are Democrats. Many know the defendant well, since he once called New York his home and made his name in its tabloid newspapers. Juries and judges in Manhattan have already found Mr. Trump liable for committing sexual abusedefaming his accuser and, most recently, for wildly inflating his net worth to obtain better loan terms.

Valerie Hans, a professor of law at Cornell University who has studied jury behavior, said that pretrial publicity typically favored prosecutors, but that dynamic could be altered by Mr. Trump’s divisive behavior.

“Trump has not ceded the pretrial publicity to the prosecution in this case at all,” said Ms. Hans, noting that Mr. Trump had repeatedly referred to case as a “witch hunt,” a view that his supporters echo.

“It can help shape how people look at the evidence that’s presented at trial from the very start,” she said, adding, “People are more likely to agree with things they have heard many times before.”

Mr. Trump seems well aware of the public relations battle he is waging in his hometown. The presumptive Republican nominee, who faces three other indictments, has repeatedly called for a crackdown on crime. He recently attended the wake of a slain New York City police officer, where he said that the country needed to “get back to law and order.”

He has attacked Justice Merchan again and again and said the justice system is rigged against him.

The judge has moved to defend the citizens who may decide the former president’s fate. New York State does not allow juries to operate in full anonymity, but in early March Justice Merchan ordered prospective jurors’ identities to be shielded from the public, while effectively barring Mr. Trump from exposing them. The former president will not have access even to their addresses.

Lawyers for both sides, however, will know the jurors’ names. They will scour potential jurors’ social media accounts as well as their voter registration and voting histories, which will show whether they voted but not for whom.

Earlier this year, the federal jurors who found Mr. Trump liable for defaming the writer E. Jean Carroll and ordered him to pay her $83.3 million were completely anonymous. Judge Lewis A. Kaplan encouraged them to stay that way.

“My advice to you is that you never disclose that you were on this jury,” Judge Kaplan told them at the end of the trial. “And I won’t say anything more about it.”

Jurors in the criminal trial will also be subject to an intense media spotlight, with scores of reporters packing the courtroom and a constant barrage of commentary from social media and traditional news outlets.

And, of course, they will have to reckon with Mr. Trump, who will sit in the court for weeks just feet away from them. In the defamation trial, he was fixated on the jurors from the moment they walked into the courtroom. He pivoted to study them as they answered biographical questions and frequently talked to his lawyers.

But his participation may have been a double-edged sword. For prospective jurors, it provided their first glimpse of Mr. Trump’s pique at being a defendant.

Judge Kaplan read a summary of the case to them, including the established finding that Mr. Trump had sexually assaulted Ms. Carroll. Later, Judge Kaplan asked the prospective jurors whether any believed that the court system was treating the former president unfairly.

Mr. Trump raised his hand.

To read more CLICK HERE

Wednesday, April 10, 2024

Creators: Prohibition's Lasting Effect on the Criminal Justice System

Matthew T. Mangino
April 8, 2024

In the thick of Prohibition, Justice Benjamin Cardozo famously lamented that, under the exclusionary rule, "the criminal is to go free because the constable has blundered." While Prohibition lasted from 1920 to 1933, it left an indelible mark on the criminal justice system.

Zealous government officials feverishly worked to stop the flow of alcohol, often trampling the rights of individuals in the process. Police often engaged in lawlessness, pursued illegal methods of gathering evidence and engaged in questionable investigative tactics. It took more than 30 years to reset the criminal justice system.

In the 1960s, U.S. Supreme Court Chief Justice Earl Warren, and his fellow justices, began to reinfuse the Constitution into investigatory criminal procedure. In 1961, the Warren court adopted the exclusionary rule to control police misconduct. If the police violated a suspect's rights while investigating a crime, any evidence obtained would be excluded from trial. Justice Cardozo would have been displeased, but the exclusionary rule created an atmosphere of deference to individual rights, better training and ultimately better police work.

The Warren court brought the American criminal justice system Miranda (being informed of one's rights); Gideon (right to counsel); Mapp (the exclusionary rule); Katz (illegal wiretaps); and Terry (reasonable suspicion).

However, in the years since the Warren court, these very important rights have been increasingly dismantled by courts through the aggressive advocacy of prosecutors nationwide. As Vida B. Johnson wrote in "Whom do Prosecutors Protect?" for the Boston University Law Review, "People are less secure from governmental intrusions than ever before because prosecutors have repeatedly asked judges to give individual law enforcement officers passes when they have crossed previously drawn constitutional lines."

The Fourth Amendment to the United States Constitution states that "the right of the people to be secure in their persons — against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause."

One decision by the Warren court that has had a lasting effect was originally perceived as an effort to protect individuals from unlawful intrusion by police. Prior to the decision in Terry v. Ohio, police could only conduct interrogation on the street with probable cause. However, those interrogations often happened without probable cause. The high court in Terry created a level of suspicion, less than probable cause, but more than a hunch — reasonable suspicion.

Instead of individuals being stopped on the street at the whim of police, the officer had to articulate some level of suspicion. In addition, when a detention based on reasonable suspicion was being executed, a police officer could pat down the detainee for officer protection — the dawn of "stop-and-frisk."

In Terry's lone dissent, Justice William O. Douglas warned that "to give the police greater power than a (judge) is to take a long step down the totalitarian path." The decision in Terry is still being felt today.

Stop-and-frisk became a law enforcement tactic to remove illegal guns from the street. The tactic had a dramatic effect on individual rights, particularly in urban areas and particularly against young men of color.

According to the Center for Constitutional Rights, in 2011, the NYPD reported a 685,724 stop-and-frisks. Eighty-four percent of those stopped were Black or Latino, and 88% of the people stopped were neither arrested nor received summonses. Despite the stated purpose of the policy, weapons were recovered in less than 2% of stops.

Three years later, New York Judge Shira A. Scheindlin ruled that NYPD's stop-and-frisk tactics violated the Fourth Amendment prohibition against unreasonable searches and seizures.

That was not the end of stop-and-frisk. Scheindlin ruled that the way the NYPD was applying stop-and-frisk was unconstitutional; she did not rule that stop-and-frisk was unconstitutional. Terry remains the law and stop-and-frisk remains and integral part of police work.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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Tuesday, April 9, 2024

Missouri executes man for 2006 double murder

 The 4th Execution of 2024

The state of Missouri  executed Brian Dorsey on April 9, 2024 for the 2006 murders of his cousin, Sarah Bonnie, and her husband, Benjamin Bonnie, after an effort to have his life spared failed in recent days, reported CNN.

Dorsey’s time of death was recorded as 6:11 p.m, the Missouri Department of Corrections said in a news release. The method of execution was lethal injection, Karen Pojmann, a spokesperson for the department, said at a news conference, adding it “went smoothly, no problems.”

The execution of Dorsey, 52, occurred hours after the US Supreme Court declined to intervene and about a day after Missouri’s Republican governor denied clemency, rejecting the inmate’s petition – backed by more than 70 correctional officers and others – for a commutation of his sentence to life in prison.

Dorsey and his attorneys cited his remorse, his rehabilitation while behind bars and his representation at trial by attorneys who allegedly had a “financial conflict of interest” as reasons he should not be put to death. But those arguments were insufficient to convince Gov. Mike Parson, who said in a statement carrying out Dorsey’s sentence “would deliver justice and provide closure.”

In a final written statement before his execution, Dorsey thanked supporters who advocated on his behalf and apologized to the loved ones of his victims.

“To all of the family and loved ones I share with Sarah and to all of the surviving family and loved ones of Ben, I am totally, deeply, overwhelmingly sorry. Words cannot hold the just weight of my guilt and shame,” Dorsey said, according to the statement provided to CNN by his attorneys. “I still love you. I never wanted to hurt anyone. I am sorry I hurt them and you.”

“To my family, friends, and all of those that tried to prevent this, I love you! I am grateful for you,” he said. “I have peace in my heart in large part because of you and I thank you. To all those on ALL sides of this sentence, I carry no ill will or anger, only acceptance and understanding.”

While Dorsey’s petition also cited support from some relatives who his attorneys said were also related to the victims, other members of the victims’ families supported the execution, telling CNN in a statement Dorsey committed the “ultimate betrayal” when he killed Sarah Bonnie, his cousin, and her husband Benjamin and left their daughter Jade, then 4 years old, in the home with her parents’ bodies locked in their bedroom.

“Not only did Jade lose her parents but we also lost a daughter and son, sister and brother, aunt and uncle, and a great aunt and great uncle to so many,” the statement from Sarah Bonnie’s family read, in part.

“They were loved so deeply by anyone that knew them,” it said. “All of these years of pain and suffering we finally see the light at the end of the tunnel. Brian will get the justice that Sarah and Ben have deserved for so long.”

In his statement Monday, the governor said the “pain Dorsey brought to others can never be rectified,” and Dorsey’s execution would proceed according to state law and as ordered by the Missouri Supreme Court.

“Brian Dorsey punished his loving family for helping him in a time of need,” Parson said. “His cousins invited him into their home where he was surrounded by family and friends, then gave him a place to stay. Dorsey repaid them with cruelty, inhumane violence, and murder.”

The murders occurred the night of December 23, 2006. Hours earlier, Dorsey called Sarah asking for help, according to a history of the case included with a ruling by the Missouri Supreme Court last month. Two drug dealers were in his apartment, Dorsey said, and he needed money to pay them.

The couple went to Dorsey’s apartment and the drug dealers left. They then took Dorsey back to their home, the ruling notes, and Dorsey spent the evening drinking and playing pool with their family and friends.

Later that night, the ruling said, Dorsey entered their room and fatally shot them with a shotgun at close range. Court records said Dorsey raped Sarah’s body. Dorsey’s attorneys argued this remains an allegation; he was never charged with and never pleaded guilty to rape or sexual assault.

Dorsey was charged with two counts of first-degree murder and pleaded guilty in March 2008. He was sentenced to death for each murder, court records show, and his conviction and death sentence were upheld on appeal.

The killings were deeply traumatic for Sarah Bonnie’s family, according to their statement, noting the bodies were discovered by her parents. In the years after, the family did what they could to keep the memories of Sarah and Ben alive, taking their daughter to the cemetery each year to release balloons.

“We think of all the things that she has missed out on during her life without her parents. First day of school, school parties, school dances, first date, sweet sixteen, first boyfriend and high school graduation,” their statement said. “All of this was taken from her by a family member that proclaimed to love her.”

Jenni Gerhauser, a cousin to both the inmate and Sarah Bonnie, however, had held out hope Dorsey would be spared and was “devastated and disheartened by the final failure to save the life of our cousin, Brian Dorsey,” she said in a statement early Tuesday afternoon.

“This evening, Brian will be set free,” she said. “His punishment will end, and for all of us only guilty of loving him, ours will begin.”

To read more CLICK HERE

Sunday, April 7, 2024

NYC will pay $28 million to young mentally ill inmate who tried to hang himself

New York City has agreed to pay more than $28 million to settle a lawsuit filed by the family of Nicholas Feliciano, who suffered severe brain damage after he attempted to hang himself in a Rikers Island jail cell as more than half a dozen correction officers stood by, reported The New York Times.

If approved by a judge, it will be among the largest pretrial settlements ever to be awarded to a single plaintiff in a civil rights case in New York City.

Mr. Feliciano was 18 and had a long history of psychiatric hospitalizations and suicide attempts when he was sent to Rikers in late 2019 on a parole violation. When he tried to hang himself on Nov. 27 of that year, guards watched as he flailed his arms but did not intervene even after he became limp, video footage obtained by The New York Times shows.

The Bronx district attorney filed felony charges against three of the guards and a captain in 2022. Last year, two of the guards pleaded guilty to official misconduct, a misdemeanor, and avoided jail time. The cases against the captain and the remaining officer are pending.

For the past four years, Mr. Feliciano has received round-the-clock care, first at the Bellevue Hospital Center and then at a rehabilitation facility where he must use a walker to get around, said his grandmother, Madeline Feliciano, 57. He cannot eat without assistance, has short-term memory loss and struggles to remember visits with family and friends or the things he did the day before, she said.

The proposed settlement, Ms. Feliciano said, will help his family care for him at home. A final decision in the case could come as early as next week.

“It is not going to bring Nicholas back to who he was,” she said, adding that, at 22, “he has to live with this injury for rest of his life.”

A Correction Department spokeswoman said the agency has taken steps to reduce self-harm among detainees through renovations to housing areas, including the installation of fencing around units with multiple floors. She said officers are trained to prevent suicides and recognize signs of distress among mentally ill detainees and that specialists are assigned to people who have a history of trying to harm themselves.

But the New York City Board of Correction, a jails oversight panel, said in a recent report that many of the problems that had given rise to Mr. Feliciano’s case have only worsened.

Over the past three years, at least 18 mentally ill detainees have killed themselves or died of drug overdoses or other causes, records and interviews show. And the number of detainees with psychiatric needs has risen: About one in five people held on Rikers has some form of serious mental illness.

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Saturday, April 6, 2024

Special counsel Jack Smith losing patience with Judge Cannon

Judge Aileen M. Cannon has left many legal experts dumbfounded with her handling of the criminal classified documents case against former president Donald Trump, the man who nominated her to the federal bench, reported the Washington Post.

And special counsel Jack Smith appears to be losing patience with her.

Smith’s office late Tuesday night filed an especially withering response to Cannon’s request for proposed jury instructions. The response reads as a challenge to Cannon’s jurisprudence and raises the possibility that Smith might try to go around her as the case proceeds.

The growing standoff is worth a breakdown, given that this might be Trump’s most legally problematic case.

Cannon had asked for the proposed jury instructions based on two scenarios involving competing interpretations of the Presidential Records Act. Even invoking the PRA in the instructions would be a gift to Trump. It would effectively inject the idea that the classified documents Trump held onto might somehow be his personal records in a way that many experts say is nonsensical and would severely jeopardize the case.

Those experts say the PRA has no bearing on the case, which instead involves the Espionage Act. They also noted that it’s unusual for a judge to request such jury instructions long before a trial date that hasn’t even been set and before ruling on the laws relevant to the case. 

Smith clearly agrees that the PRA issue is a red herring. And he wasn’t mincing words in his filing. On six occasions he called the legal premise behind Cannon’s request wrong. He repeatedly implored her to deal with the matter expeditiously. And — perhaps most notably — he repeatedly floated the idea of appealing to the U.S. Court of Appeals for the 11th Circuit.

“The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act,” Smith’s filing says, “and the PRA should play no role in the jury instructions.”

Smith goes on to indicate that Cannon’s request would effectively stack the deck against the prosecution.

He says that one version of the jury instructions Cannon requested would amount to “asking the jury to make a factual finding with no proper legal connection” to the case. He says that the other is even worse — that it “would amount to nothing more than a recitation of Trump’s PRA defense” and “would result in directing a verdict against the Government.”

National security lawyer Bradley Moss noted how unusual it is for a legal team to speak about a judge this way and said it was clearly born of frustration with Cannon.

“The exasperation that can be read into [the Justice Department’s] filing was clearly meant to convey a simple view to Judge Cannon: They want her to make her ruling already, take ownership of the moment if she thinks Trump is right on the law, and let DOJ take this to the 11th Circuit,” Moss said. 

One of the most striking sections is when Smith goes into some detail about his evidence on the Presidential Records Act. He not only argues that the PRA doesn’t bear on the case, but he says that no key witness has any knowledge of Trump’s designating the documents as personal records or believing his removal of them made them personal.

“To the contrary, every witness who was asked this question had never heard such a thing,” Smith says.

Smith even suggests that this justification was effectively invented long after Trump took the documents — by Trump ally and Judicial Watch President Tom Fitton, who Smith takes care to note is “not an attorney.” Smith says that before this point, a Trump employee who had spoken with Fitton about the idea “had never heard this theory from Trump.”

“No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022,” Smith says.

Smith goes on to comply with Cannon’s request for the proposed jury instructions to include discussion of the PRA. But he does so while making it abundantly clear that he was doing so begrudgingly. On three occasions, he specifies that he is “nonetheless” or “nevertheless” providing the proposed instructions “as directed by the Court.”

In both of his versions of the instructions, he includes sharp language intended to highlight the perceived absurdity. Each of the versions of instructions reads:

I instruct you, however, that, as to a former President, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure facility, he is authorized to do so if the classified information is contained within a “personal record,” within the meaning of the Presidential Records Act (PRA), a statute that establishes the public ownership of presidential records and ensures the preservation of presidential records for public access after the termination of a President’s term in office.

The language there is a bit dense. But Smith is effectively arguing in the proposed instructions that the PRA can’t possibly apply to the case, even as he abides by the request to broach it.

Perhaps most important, the filing appears to be a direct challenge to Cannon. It notifies her that if she continues to insist on this, Smith’s team might try to go around her. And it urges her to act quickly on the matter to allow the prosecution to appeal before it’s too late and compromises the trial.

Were Cannon to make an erroneous ruling after the trial begins and if Trump were then acquitted, the government would not be able to appeal. 

“Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent ‘a correct formulation of the law,’” Smith writes. “If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions … it must inform the parties of that decision well in advance of trial.”

Smith twice alludes to seeking a writ of mandamus from the appeals court — effectively asking it to force Cannon to correct her error.

“The blunt, scolding language pervading the government’s response,” University of Miami law professor Anthony Alfieri said, appears intended “to make clear that the gravity of her errors will be magnified in the harsh, public light of appellate review, a result that will be both discrediting of and embarrassing for Judge Cannon.”

Some Trump critics have raised the possibility that Smith might try to get Cannon removed from the case. This filing doesn’t go that far.

But it does make clear that Smith views the current situation as untenable, and he feels the need to put Cannon on notice. Speaking in such terms about the judge presiding over your case is best avoided, but Smith appears to see no other choice. The big question is how Cannon will respond.

To read more CLICK HERE