So you think they've got Trump right where they want him, eh? Wait till you hear what this former federal prosecutor turned high-end defense attorney has to say
Alex Wong/Getty Images
- It sure looks like they've really got Trump where they want him this time!
- Except he's probably going to get a favorable judge.
- And she'll have enormous power to prevent Trump from getting convicted.
If you think former President Donald Trump is finally, really, actually, but for real this time, about to face justice — hold on just one moment.
He may have an easy out.
Yes, it sounds like this new indictment against Trump is a pretty strong one. Even Fox News's top legal commenter thinks so. He called it "extremely damning." And we're not seeing nearly as much skepticism as we saw after New York attorney general Alvin Bragg's indictment, either.
But one former federal prosecutor turned high-end defense attorney, Ken White, sees a quick path out of trouble for Trump.
He said all Trump needs is a judge completely in the tank for him — a judge who is willing to sacrifice their reputation in order to protect him.
And guess what?
That's what it looks like Trump is going to get: Judge Aileen Cannon.
As my colleagues, including Kimberly Leonard, reported Friday, Cannon was widely criticized last year when she ruled that an independent arbiter would have to review all the documents that the FBI seized from Mar-a-Lago.
The Department of Justice appealed the decision and was rewarded with a brutal rebuke of Cannon by the 11th Circuit Court of Appeals. The smackdown was particularly notable because it came from a panel of judges that included several appointed by Republicans.
In addition to being a fancy defense lawyer, White also co-hosts a legal podcast with Josh Barro called "Serious Trouble."
Reflecting on Cannon's ruling to appoint an independent arbiter (called a "special master") and other decisions she made handling the government's investigation into Trump's handling of classified documents, Barro mentioned to White on the podcast that Cannon has shown a "willingness to behave in a way that most judges likely would not, even if they were partisan Republicans."
"Sure," White replied. "She's willing to violate the Meat Loaf Rule: I'll do anything for love. But I won't do that."
White says that there are usually a "number of factors" that smooth even partisan judges out and move them "into the middle."
He listed a few: "Their relationship with other colleagues, their reputation, their hopes to be elevated to a higher bench, their place in history, you know, cocktail parties, opinion of lawyers, all that sort of thing. "
"But sometimes," White said, "Judges just don't give a shit and Judge Cannon's behavior in this case in the past was several very long strides in this direction of don't give a shit."
White suspects Cannon may be imagining what she might be able to get out of a second Trump presidency.
"You have a situation where it is not even remotely difficult to imagine: Her acquitting Trump, Trump getting elected, Trump elevating her to the 11th Circuit or the Supreme Court. He would totally do it. His fans would be completely fine with it. And it would be just a giant middle finger to the country. And I mean, he would do it."
So how, exactly, could Cannon protect Trump and end this case against him in a moment?
"She can delay things forever by making rulings that can't be appealed. She can make rulings that while they don't tank the case, make it very difficult, like excluding evidence by saying evidence was wrongfully gathered," White said. "And that can be something that has a very unfavorable standard on appeal."
"So, for instance, if she started to rule all these statements Trump made, 'that's too prejudicial. It's unfair. I'm keeping it out.' If that goes up on appeal, that's an abuse of discretion standard. And normally, you can't appeal it before the case."
And Cannon could go even further than that, White said.
"Most drastically, she can do things that can't be repaired. Once a jury is impaneled, she can dismiss the case. And there's not a goddamn thing anyone can do about it. Double Jeopardy attaches; you're done. She can grant a motion for directed verdict of acquittal after the government's case. And then we're done. You can't be retried, can't be reviewed. It's over."
White's analysis on the Serious Trouble podcast left his cohost, Josh Barro a little stunned.
Barro asked White: "Is it possible that the Department of Justice is walking us into a situation that not only could fail to obtain convictions here, but they could end up setting off a chain of events that's quite damaging to the federal judiciary?"
"Absolutely," White said.
He went on.
"People are saying that by charging Trump you're riling up his base. You're making it more likely he's going to get elected. And then he's going to have a more conservative judiciary, insulate himself more, pardon himself, all this type of stuff. And it's all true. All that is perfectly possible."
"But if you're the Justice Department, you can't think that way. Okay, you simply can't think that we now have to retreat from rule of law because it's too politically costly."
"If they do that, then they're basically sort of giving up."