Aileen Cannon Slaps Around Jack Smith Yet Again

INSIDE: Sam Alito ... Rudy G ... Hunter Biden

Jun 11, 2024

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

Form Over Substance

U.S. District Judge Aileen Cannon pulled another one of her trademark moves in the Mar-a-Lago case, batting down Special Counsel Jack Smith with a contemptuous hand wave on a relatively minor point while mostly siding with him in rejecting a Trump motion.

The big picture: Cannon denied a Trump motion to dismiss some counts of the indictment on the grounds that they weren’t sufficiently pleaded.

But in doing so, Cannon did toss Trump a bone, ordering that one paragraph from the indictment be struck because it was irrelevant to the underlying charges.

To be clear, no charges were dismissed, no counts eliminated, and no substantive damage was done to the prosecution’s case – at least not yet.

At issue was an episode described in the indictment at Trump’s Bedminster club where he showed a representative of his PAC – widely reported to be Susie Wiles, who is now a Trump campaign adviser – a classified map:

The conducted alleged in that incident is not charged as a separate crime in the indictment, and Cannon determined it was extraneous and unnecessary to the charges and risked being prejudicial to Trump.

At a certain level, no harm no foul. But a few points of concern:

(1) Cannon suggested this is the kind of evidence that should come in later – if at all – under federal rules that govern prior bad acts, and she sounded a bit skeptical that it would meet that test, which is odd.

(2) Cannon’s tone is still high-handed and dismissive. She’s certainly not the first federal judge to adopt that tone as a default, and woman judges often get unfairly criticized for the same brusque tone that men judges routinely exhibit. But given the high-profile nature of the case, its historic significance, and her own bumbling handling of it, it suggests a lack of self awareness.

(3) Cannon’s move is another example of her lack of proportion. She can’t keep the case on track, hasn’t set a trial date, keeps devoting court resources to extraneous matters and avoids devoting them to the issues at the heart of the case – but she’s going to highhandedly nitpick one episode in an extended indictment and then opine about her skepticism that “speaking indictments” are appropriate. Not a good sign.

The public discourse around Cannon’s handling of the case often focuses on her bias, corruption, inexperience, and incompetence. I’ve raised some of those issues here. But I keep going back to last week’s CNN profile of Cannon co-authored by my former colleague Tierney Sneed. It paints Cannon as a stickler for form and procedure:

Those tendencies include a penchant for letting irrelevant legal questions distract from core issues, a zero-tolerance approach to any technical defects in filings, and a struggle with docket management that allows the type of pretrial disputes that other judges would decide in weeks go unresolved for months.

Favoring form over substance is often a crutch for people who don’t feel comfortable with the material or who lack confidence in their own abilities or who struggle to see the forest for the trees. Inexperience, lack of competence, and fear of making mistakes are classic triggers for this kind of nitpicking behavior. The high-handed tone is similarly a defense mechanism to disguise the underlying insecurity.

I’m not trying to psychoanalyze Cannon here, just make the point that her motives are probably more complicated that wanting to let her patron Trump off the hook or to secure herself a promotion to an appeals court seat.

About Those Secret Recordings Of The Alitos

I’m not a big fan of journalists misrepresenting or disguising who they are and surreptitiously recording people so I was inclined not to focus on yesterday’s disclosure by Lauren Windsor that she had recorded Supreme Court Justice Samuel Alito, his wife, and Chief Justice John Roberts last week at an event of the Supreme Court Historical Society.

But the episode has gotten considerable pickup by other news outlets and is widely circulating now in the public sphere so let me at least flag it to your attention:

Politico: Alito and his wife are captured in audio recordings talking about abortion leak, flag controversy
NYT: In Secret Recordings, Alito Endorses Nation of ‘Godliness.’ Roberts Talks of Pluralism.
NYT: Justice Alito’s Wife, in Secretly Recorded Conversation, Complains About Pride Flag

Speaking Of The Pride Flag …

While Martha Alito was complaining about having to look at the Pride flag this month, the aggressively far-right Colorado Republican Party was urging its members to burn it: