U.S. District Judge Aileen Cannon made a crucial error in her latest ruling that gave former President Donald Trump some extra favor even as she declined to grant his motion to dismiss the charges against him in the Mar-a-Lago classified document case, former federal prosecutor Harry Litman wrote in a scathing thread on X Wednesday.
Cannon, a right-wing judge appointed by Trump, has come under fire for a series of controversial decisions seemingly calculated to give Trump extra advantages at trial, including dragging out pre-trial disputes to the point that the case won't be held before the election. Legal experts have said she visibly lacks trial experience and doesn't seem to know what she's doing.
"Cannon's latest, denying motion to dismiss and granting in part motion to strike, has one blunder and one classic Cannon move," wrote Litman. "The classic Cannon move is to take a swipe at the government for the completely routine use of a 'speaking indictment,' which lays out the story of Trump's violations in detail, and to which Trump has now objected as having too much detail. She says that can cause prejudice for the jury, which is crazy, since everything in indictment would be part of the evidence."
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"But she then does her Cannon-ball of saying she will exercise her discretion not to strike the detailed language, 'at least not at this stage b/c Defendants have not clearly shown that the challenged allegations are flatly irrelevant or prejudicial,'" wrote Litman.
In other words, he added, she is threatening to "make great mischief" at trial, when it's too late to remove her from the case.
"The blunder — and it is patent — is her determination that for count 34, which charges Trump w/ obstruction by two different 'means,' 'there likely will be a need' to require the jury to agree on unanimously on which of the two means the defendants used," wrote Litman. This is completely wrong, he continued — in fact, juries only need to be unanimous on guilt, not underlying means.
This same issue came up in Trump's New York criminal trial, where jurors had to unanimously agree Trump falsified business records to cover up an underlying crime, but didn't have to unanimously agree on what that underlying crime was — whether it was election law, tax law, or something else.
"It is well-established law, with a US Supreme Court opinion directly on point, that means are not elements and the jury need not be unanimous on them. So if the crime is assault w/ a deadly weapon, and 6 jurors think it was the gun and 6 think it was the knife, that's totally fine," wrote Litman. "Again, she hasn't done anything yet but if she were to apply this holding at trial, and the jury were to acquit based on it, it wd be too late to do anything,"
"She is a total mess," he concluded.