Not all judges are created equal. We had a Federal judge in the Western District of NC...Graham Mullen. He did not like the government and there was nothing he liked more than dressing down a AUSA or an agent on the stand. It was a right of passage to get yelled at by him in his court room for agents and AUSAs. If Smith took this tone with a 1990s Judge Mullen, Mullen would put him on the shortest leash ever and then dare him to complain about it. He did not mind getting appealed either. He hated the Sentencing Guidelines and routinely sentenced defendants below the guideline range and was always made to re-sentence by the 4th Circuit after Govt appeals. But he didnt care and did it again in the next case.
One time in a trial I was the case agent for...we had an agent on the stand who answered a question with "I think..." (in her defense the questions were on things that had happened a year before)...Judge Mullen told her.."You cant say "I think"...either you know or you dont....so a couple questions later the agent answered "I guess it was..." Judge Mullen exploded: Agent X, the answers to these questions are yes, no or I dont know, and I better not hear anything other than that come out your mouth again...
"The trial judge’s primary role is to ensure that both sides receive a “fair trial” — not a perfect trial. But the “trial rights” guaranteed under the Constitution belong only to a defendant, not to the government."
______
Why is this simple statement so hard for leftists and other wannabe tyrants to understand? Maybe it's because they've been allowed to find sympathetic judges that let them get away with it... I don't know.
It's refreshing to see the judge stand in the way of the left as they attempt to use the legal system as a cudgel to beat the right into submission.
I loved the zinger at the end, "Get over it." But I never thought you'd be quoting our unesteemed former First Lady and failed Presidential candidate, the Wicked Witch of Westchester.
This is a great post on criminal procedure, both for this case and for teaching those of us who know more about civil procedure than criminal how things work.
As you note, the double jeopardy doctrine creates a big problem. A judge can "throw" a case to the defendant by issuing plainly wrong jury instructions, and the government can't appeal a Not Guilty verdict.
I was wondering what the Government *could* do. Is this a possibility?-- The judge writes up jury instructions at the end of the trial and shows them to the attorneys for each side. The prosecutor thinks they're wrong. Can he ask an appeals court to stay the proceedings pending appeal, or to declare a mistrial so he can start over with a different judge?
This is tangential to the procedure point that this Substack is about, but maybe you could address it separately. You cite the statute as saying that the crime relates to:
"any document … relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation"
Thus, I would think that two central factual issues in the case are (a) Could any of the documents be used to the injury of the United States? and
(b) Did the defendant have reason to believe he was holding such a document?
"In order to find defendant Trump guilty of the crime of willfully retaining national defense information, the jury must find that the Government proved the following three elements beyond a reasonable doubt:
First, on or about the dates set forth in the Superseding Indictment, defendant Trump had unauthorized possession of a document;
Second, the document related to the national defense of the United States; and
Third, defendant Trump willfully retained the document and failed to deliver the document to an officer or employee of the United States entitled to receive it"
These three elements leave (a) and (b) out entirely. Later in the government's instructions, element (a) comes back, but in a weird way. The instructions say that the definition of "relating to national defense" is that (1) it would be damaging to the US, and (2) it was closely held (why is that relevant?), but that means they've dropped the element that the document relates to the army, navy, etc. as opposed to the US economy, Covid, etc. Here's what the later part says:
"To prove that a document relates to the national defense, there are two additional things the Government must prove. First, it must prove that the disclosure of the material would be potentially damaging to the United States or might be useful to a foreign nation or an enemy of the United States. Second, it must prove that the material is “closely held” by the United States government."
Thanks for the "inside" baseball terms and analysis for those of us who don't practice criminal law.
I am shocked, mind you, shocked, by the audacity of Judge Cannon to follow the concept of a "fair trial", as you described in your article.
As to SC Smith's actions, I am reminded of the old joke about why lawyers are replacing lab rats in scientific experiments:
1. Lawyers are more plentiful that rats.
2. You don't get emotionally attached to lawyers.
3. You can get (some) lawyers to do things not even a rat would do.
Well done, Ship! (Although you could use an editor!)
Great article. This is why I subscribe. Thank you.
Not all judges are created equal. We had a Federal judge in the Western District of NC...Graham Mullen. He did not like the government and there was nothing he liked more than dressing down a AUSA or an agent on the stand. It was a right of passage to get yelled at by him in his court room for agents and AUSAs. If Smith took this tone with a 1990s Judge Mullen, Mullen would put him on the shortest leash ever and then dare him to complain about it. He did not mind getting appealed either. He hated the Sentencing Guidelines and routinely sentenced defendants below the guideline range and was always made to re-sentence by the 4th Circuit after Govt appeals. But he didnt care and did it again in the next case.
One time in a trial I was the case agent for...we had an agent on the stand who answered a question with "I think..." (in her defense the questions were on things that had happened a year before)...Judge Mullen told her.."You cant say "I think"...either you know or you dont....so a couple questions later the agent answered "I guess it was..." Judge Mullen exploded: Agent X, the answers to these questions are yes, no or I dont know, and I better not hear anything other than that come out your mouth again...
"The trial judge’s primary role is to ensure that both sides receive a “fair trial” — not a perfect trial. But the “trial rights” guaranteed under the Constitution belong only to a defendant, not to the government."
______
Why is this simple statement so hard for leftists and other wannabe tyrants to understand? Maybe it's because they've been allowed to find sympathetic judges that let them get away with it... I don't know.
It's refreshing to see the judge stand in the way of the left as they attempt to use the legal system as a cudgel to beat the right into submission.
Seems to me that Judge Cannon adheres to the quaint notion that the defendant is innocent until PROVEN guilty.
Ship tells it for the average guy.
Briliant
I loved the zinger at the end, "Get over it." But I never thought you'd be quoting our unesteemed former First Lady and failed Presidential candidate, the Wicked Witch of Westchester.
She could always toss it at the end of the government’s presentation under rule 29..
This is a great post on criminal procedure, both for this case and for teaching those of us who know more about civil procedure than criminal how things work.
As you note, the double jeopardy doctrine creates a big problem. A judge can "throw" a case to the defendant by issuing plainly wrong jury instructions, and the government can't appeal a Not Guilty verdict.
I was wondering what the Government *could* do. Is this a possibility?-- The judge writes up jury instructions at the end of the trial and shows them to the attorneys for each side. The prosecutor thinks they're wrong. Can he ask an appeals court to stay the proceedings pending appeal, or to declare a mistrial so he can start over with a different judge?
Can you comment on how the Federal Judge's ruling on the Bill Clinton "sock-drawer" case would affect this case? Thank you!
This is tangential to the procedure point that this Substack is about, but maybe you could address it separately. You cite the statute as saying that the crime relates to:
"any document … relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation"
Thus, I would think that two central factual issues in the case are (a) Could any of the documents be used to the injury of the United States? and
(b) Did the defendant have reason to believe he was holding such a document?
"In order to find defendant Trump guilty of the crime of willfully retaining national defense information, the jury must find that the Government proved the following three elements beyond a reasonable doubt:
First, on or about the dates set forth in the Superseding Indictment, defendant Trump had unauthorized possession of a document;
Second, the document related to the national defense of the United States; and
Third, defendant Trump willfully retained the document and failed to deliver the document to an officer or employee of the United States entitled to receive it"
These three elements leave (a) and (b) out entirely. Later in the government's instructions, element (a) comes back, but in a weird way. The instructions say that the definition of "relating to national defense" is that (1) it would be damaging to the US, and (2) it was closely held (why is that relevant?), but that means they've dropped the element that the document relates to the army, navy, etc. as opposed to the US economy, Covid, etc. Here's what the later part says:
"To prove that a document relates to the national defense, there are two additional things the Government must prove. First, it must prove that the disclosure of the material would be potentially damaging to the United States or might be useful to a foreign nation or an enemy of the United States. Second, it must prove that the material is “closely held” by the United States government."
https://www.courthousenews.com/wp-content/uploads/2024/04/doj-response-presidential-records.pdf
What's going on?