26 Comments

Hey, Steve, you left out Scenario 4:

9:00 AM EST today: DOJ drops all charges against Nauta and de Oliveira

9:05 AM EST today: DOJ transmits redacted copies of both reports to the White House

9:10 AM EST today: President Biden releases both reports to the public, along with a joint statement with AG Garland.

ALL LEGAL.

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Good point. Aren't we already essentially at your step 1?

The Defendants are pretending that there's an emergency that could justify an Emergency Motion under the Local Rules of the Southern District of Florida. But their argument is based on S.D. Fla. Local Rule 77.2(a). That rule provides that attorneys may not “release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which the lawyer or the firm is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” Could any "reasonable person" actually "expect" that there is a "reasonable likelihood" that a DOJ that is under the influence of Trump and his appointees would actually pursue a "fair trial" or "the due administration of justice" against anyone who helped Trump commit crimes? I think not (based on Trump's own public statements). The Defendants certainly did not present any evidence that the DOJ would do so. Judge Cannon certainly did not ask them to present any such evidence before she issued her order.

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For that matter, why not also pardon Nauta and de Olivera outright? Then it’s all done. No harm no foul. (Usual disclaimer: I am not a lawyer)

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AG Garland should give it to President Biden, Biden should drop it ASAP(release all of it) and shake Trump's hand while smiling at him on Jan 20th and walk away.

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The U.S. Attorney General (Garland) should stand up and support and defend the U.S. Constitution as he swore to do. Lawyers certainly need not comply with an illegal order by any judge. See, e.g., the American Bar Association's Model Rules of Professional Conduct. Rule 3.4 emphasizes that a lawyer may "knowingly disobey an obligation under the rules of a tribunal" if he or she does so by means of "an open refusal based on an assertion that no valid obligation exists." Rule 8.4 also emphasizes that lawyers must not "knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law."

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Whatever one thinks of his prior handling, it seems to me here that AG Garland has shown here that he's not up to the moment. Rather than write a letter about what he was going to do with the respect to the report, why didn't he just do it and present the world with a fait accompli?

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I'm still confused as to why Judge Cannon's injunction has to be followed at all. She dismissed the case. Doesn't that mean she no longer has any jurisdiction over it?

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Very thorough, thank you!

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Any insight on when 11th acts on DoJ’s Emergency Motion? Or requests a response?

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This brings tears of anger to my eyes. It is utterly disgusting. I will never understand how a rogue judge is allowed to trample all over the law like she has been able to do. I get that they are appointed for life, and that they apparently don't have actual bosses, but something needs to be done to stop this kind of abuse of the system. I spent my entire career in the Intelligence Community, a lot of that working in the classification policy area. So this is all doubly horrible, as far as I am concerned.

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It seems that all the Scenarios have been overtaken by Judge Cannon's most recent Order which seems to concede lack of Jurisdiction over Volume I and schedules a hearing on Friday to consider whether DOJ should be barred from releasing Volume 2---the Classified Document Uproar---even to Congressional Committees. Doesn't seem that Congress has been invited to participate in this Fandango which puts a Judge above the Congress which is a co-equal branch according to the Constitution. But we can chill: it is unlikely that Judge Cannon will actually issue a decision on Friday since she needs some time to get dressed for her attendance at the parties to celebrate Trump's return to office on Monday. The Incumbent DOJ has already said that it wont release Volume II because the charges against the two Trump Staffers are still pending. Since Trump will presumably pardon them 9 minutes are he gets Inaugurated next Monday, the whole issue will be moot and we ALL will have Volume I which is the most important.. Mainly, the whole exercise teaches that at even Judge Cannon is subject to Tip O'Neil's Dictum:" When she feels the heat she sees the light."

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Isn't it interesting that Judge Cannon's order (footnote 2) implicitly threatened DOJ attorneys with disciplinary action for potential lack of "candor' with respect to their "representations made to this Court." Yet, Judge Cannon said nothing to Trump's attorneys about their obvious lack of candor.

The future prosecution of Trump's accomplices by the DOJ under Trump's influence (or actual control) is the crucial "fact" on which the Defendants' so-called Emergency Motion depended. Yet, the Defendants failed to present any evidence (or even argue) that the DOJ actually would pursue any prosecution of Trump's accomplices after Trump's inauguration. Judge Cannon certainly did not ask the DOJ to present any such evidence. Instead, Judge Cannon merely emphasized that the "parties agree that Volume II" merely "concerns this criminal proceeding." That is not the relevant standard or issue. Even the Defendants' motion acknowledged that fact.

As the Defendants counsel (and Judge Cannon) knew, the Defendants must actually believe (and show "good cause" (per FRCP Rule 6) to believe) that "there is a reasonable likelihood that" public "dissemination" of the information in Vol. I or Vol. II actually "will interfere" (in a material respect) "with a fair trial or otherwise prejudice the due administration of justice.”

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Your point is absolutely correct. I have the sense that DOJ did not raise it before Cannon or the 11th Circuit because the central priority was to get as much of the Report made public as possible before January 20 since Trump will doubtlessly end the federal cases immediately upon taking office. I understand there are FOA requests already filed with DOJ seeking the documents

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Doubtless, indeed. Trump's own public statements (and other compelling facts, including Trump's choices for leadership positions in the DOJ) establish there is no likelihood of any such "fair trial" or "due administration of justice" against Trump's accomplices by a DOJ controlled or influenced by Trump. Trump publicly boasted that he, personally, "would fire [Jack Smith] within two seconds" after Trump's inauguration. Smith, himself, showed he believes Trump will at least cause Smith to be subjected to harassment and retaliation and cause justice to be obstructed and he believes the DOJ will not prosecute Trump's accomplices. As Judge Cannon already knows, Smith already has resigned.

Trump and his counsel provided further compelling evidence that they all expect the termination of these criminal proceedings against Trump's accomplices. In a motion on Jan. 7, 2025, Trump and his counsel actually represented to the Court that "President Trump should be permitted to participate in these proceedings" precisely because Trump is the "soon-to-be President." It is not even plausible that Trump and his counsel would insist on participating in criminal proceedings that Trump and his counsel actually expected to proceed to trial. Trump and his counsel worked hard to get out of precisely such proceedings (by asking SCOTUS justices to pretend Trump had immunity from prosecution for his crimes).

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Incidentally, the release of the report should---but probably wont ---silence the claim that DOJ and Jack Smith should have acted faster to get these cases to trial. The issues in this case were at least as complex as the Watergate and the volume of witnesses interviewed or called to the Grand Jury is enormous and could not have been carried out any faster and as the Report points out the major cause of delay was the Supreme Court's slow pace in reaching a plainly politically biased lawless decision which it has already started to disavow

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Question: Is it even possible-realistic that charges be dropped against the two FL boys and both J6 and the FL Document case report released immediately? I know this flies in the face of “no one is above the law”, the American people are entitled to see the report as are the Congressional committees. Simply curious…

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Judge Cannon clearly (and intentionally) violated our Constitution and federal law and the Code of Conduct for United States Judges. Canon 3 emphasizes that "A Judge Should Perform the Duties of the Office Fairly" and "Impartially." Judge Cannon's "Adjudicative Responsibilities" thereunder include the following: "A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law."

Rule 6 of the Federal Rules of Civil Procedure (which constitute federal law approved by Congress) required Judge Cannon to afford the DOJ (representing the people) time to respond, i.e., "at least 14 days" unless federal law permitted "the motion may be heard ex parte" or the FRCP "set a different time" or "a court order—which a party may, for good cause, apply for ex parte—sets a different time." Judge Cannon's conduct converted the motion into very nearly the equivalent of an illegal ex parte communication between Trump's lawyers and Judge Cannon.

The Defendants (and Trump and his counsel) are pretending that there's an emergency that could justify an Emergency Motion under the Local Rules of the Southern District of Florida. But their argument is based on S.D. Fla. Local Rule 77.2(a). That rule provides that attorneys may not “release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which the lawyer or the firm is associated" only "if there is a reasonable likelihood that such dissemination" actually "will interfere" (in some material respect) "with a fair trial or otherwise prejudice the due administration of justice.”

Could any "reasonable person" actually "expect" that there is a "reasonable likelihood" that the DOJ (once it is under the influence of Trump and under the control of Trump's appointees) would actually pursue a "fair trial" or "the due administration of justice" against anyone who helped Trump commit crimes? I think not.

Trump's own public statements (and other compelling facts, including Trump's choices for leadership positions in the DOJ) establish there is no likelihood of any such "fair trial" or "due administration of justice" against Trump's accomplices by a DOJ controlled or influenced by Trump. Trump publicly boasted that he, personally, "would fire [Jack Smith] within two seconds" after Trump's inauguration. Smith, himself, showed he believes Trump will at least cause Smith to be subjected to harassment and retaliation and cause justice to be obstructed and he believes the DOJ will not prosecute Trump's accomplices. As Judge Cannon already knows, Smith already has resigned.

Trump and his counsel provided further compelling evidence that they all expect the termination of these criminal proceedings against Trump's accomplices. In a motion on Jan. 7, 2025, Trump and his counsel actually represented to the Court that "President Trump should be permitted to participate in these proceedings" precisely because Trump is the "soon-to-be President." It is not even plausible that Trump and his counsel would insist on participating in criminal proceedings that Trump and his counsel actually expected to proceed to trial. Trump and his counsel worked hard to get out of precisely such proceedings (by asking SCOTUS justices to pretend Trump had immunity from prosecution for his crimes).

The future prosecution of Trump's accomplices is the crucial "fact" on which the Defendant's so-called Emergency Motion depended. Yet, the Defendants failed to present any evidence (or even argue) that the DOJ would pursue any prosecution of Trump's accomplices after Trump's inauguration. Judge Cannon certainly did not ask the DOJ to present any such evidence.

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It is fascinating to watch this play out from the UK where once an election is announced Government departments go into purdah (no major changes / decisions allowed) until after the election and of course the new Government takes over within 12 hours of the polls closing (are you listening California?!). Avoids a lot of these issues where a lame duck administration is desperately trying to get this report published before the incoming administration nixes it.

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Our Constitution established huge differences from the UK system in many crucial respects. For starters, to this day, the UK still has no single written document that it can even call a Constitution. In the UK, isn't Parliament still considered sovereign? Significantly, Americans citizens used our written Constitution to establish conclusively that in America citizens are sovereign and all public officials are mere public servants. The difference is highly relevant here.

Many of our Founders and Framers of our Constitution (and Declaration of Independence) emphasized that the people, themselves, have the power and duty to secure their own good government. Consider the following from James Madison in The Federalist No. 51:

"A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

"It may be a reflection on human nature, that such devices [as our written Constitution and its provisions] should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Consider also some principles that a far more principled SCOTUS majority (unanimously) re-emphasized in New York Times Co. v. Sullivan in 1964:

"Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government." Absolutely all "public men, are, as it were, public property," and "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." Our Constitution emphatically and expressly secures "the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer." "As Madison said," in general, "the censorial power is in the people over the Government, and not in the Government over the people." This is necessarily so because "[t]he people, not the government, possess the absolute sovereignty."

We the People are entitled to the information that Trump, his attorneys and Judge Cannon were or are illegally trying to conceal from us.

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"Pins and needles", has there ever been this much brouhaha fomented by outright partisanship of judges?

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Well, Abraham Lincoln was elected president and the Civil War was fought in large part because partisan SCOTUS justices (in their Dred Scott opinions) lied and deceived Americans about our Constitution, our Declaration of Independence and our history.

In 1804, a viciously partisan SCOTUS justice (Samuel Chase) even was impeached by Congress (and narrowly escaped conviction by the Senate) because he abused his position and powers (and knowingly violated federal law and the U.S. Constitution and blatantly committed federal crimes) to attack people who merely criticized his political party.

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I'm not a fan of leaky government entities, but there are scenarios where a leak is in the public interest. The Jan 6 report (and probably the MAL reports) NEED to be in the public view. If the courts can't do the right thing, then the wrong thing might have to become the right thing.

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Does "end of the day, today" mean after midnight or after 5 PM?

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Trump would be hurt by release of the reports, which are the work of an illegal special counsel-- at least, illegal till the 11th circuit decides otherwise. Did he ask the 11th circuit to block release on the grounds that the report was produced illegally? Or was it just Nauta asking on different grounds?

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Special counsel is only "illegal" according to Cannon.

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Why is the 11th Circuit taking so long to respond to the question of Cannon's dismissal of MAL case (on basis of alleged illegality of special counsel appt)?

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