Resolute Square

Beware The Lawyers (Follow-Up)

Teri Kanefield writes that in the end, "All we’ve got are individual people formed by the norms and institutions they are embedded in making decisions, hopefully coming to the right conclusions and acting in good faith. Or at the very least, bowing to some sense of public pressure or shame not to do the wrong thing."
Published:May 22, 2024

*Published with the generous permission of Teri Kanefield. Read all of her writing here.

By Teri Kanefield

Last week I summarized Peter Arenella’s 1998 piece, The Perils of Legal Punditry. Among other things, Arenella argues that much of legal punditry is “Hot air that passes for legal commentary.” If you missed it, start here.

I suggested that people don’t need lawyers to decode the news.

I turned off my comments and added a “contact” button. I promised to read what people wrote. As a follow-up to last week’s blog post, I thought I’d share a few of the comments and respond to them.

A few people said a variation of this:

Teri, I think you’re overestimating the ability of people to decode the news.

I disagree. Newspapers are written at a high school level. I suggest if people stop listening to legal pundits speculating, they won’t feel confused and they won’t think they need help from lawyers decoding the news.

Allow me to demonstrate.

Judge Cannon: Facts v. Speculation

Recall that last week people were “losing their heads” over Cannon’s latest order taking the trial date off the calendar. No surprise, a number of people who wrote to me had questions about Judge Cannon. So I’ll use news reporting and legal punditry about Judge Cannon as an example.

Let’s start with the facts. I have linked to traditional reporting to show that the facts are easily understood.

In 2019Sen. Marco Rubio’s office reached out to Aileen Cannon, saying he “wanted to consider [her] for a judicial vacancy in the Southern District of Florida.”
2020: Cannon was nominated by Trump and confirmed in November of 2020. Until she was assigned to Trump’s case, she drew no national attention. 
August 8, 2022:  When Mar-a-Lago was searched pursuant to a search warrant, the world (and Trump) learned that Trump was under criminal investigation for taking classified documents when he left office.
August 22, 2022Trump filed a lawsuit demanding a special master to look at the documents before the DOJ could use them.
September 5, 2022: Cannon was assigned to the case. She agreed with Trump’s lawyers and appointed a special master.
September 21, 2022Cannon’s special master decision was reversed on appeal. Two-thirds of the panel of justices that overturned her decision were also Trump-appointed judges.
October 13, 2022The Supreme Court (stacked with Conservative justices) refused to hear the case allowing the appellate decision to stand. 
December 1, 2022: Cannon was again overturned by the court of appeals, this time for taking jurisdiction of the case in the first place. This time the appellate court also gave her a blistering smackdown:
The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.
June 8, 2023: Trump was indicted by the DOJ for taking classified documents with him when he left office. The case was again assigned to Cannon.
June 8, 2023 – May 2024:

I really doubt anyone would be confused by those facts. Now, let’s venture into the realm of speculation by listing the possible reasons Cannon keeps siding with Trump.

  1. She agrees with Trump and doesn’t think the case should have been filed as a criminal case. (Variation: She thinks the case is political.)
  2. She believes a former president is differently situated with respect to classified documents he had legally in his possession and should be treated differently.
  3. She has zero experience with the Classified Information Procedures Act (CIPA) and the Presidential Records Act (PRA) and doesn’t understand them.
  4. She is corrupt. (My dictionary, the Oxford American, defines corruption as “dishonest or fraudulent conduct by people in power.”)
  5. Some combination of the above.

If Cannon agrees with Trump, she is not alone. Lots of people agree with Trump. Many of them have law degrees. Some are even judges.

One reader of last week’s blog post, who did the same appellate work in California that I did (representing indigents through what are known as the projects) said this:

Is Judge Cannon moving slower than a different judge would, yes. But since she was reversed harshly twice there is a reason, if you look at it from her side.

(A word about defense lawyers. We have a habit of looking at things from the viewpoint of the Bad Guys.)

Being overturned on appeal is like getting an F in law school. You do all that work and it doesn’t count. If you are overturned in a high-profile case, it’s like having your F make national headlines.

Here are some possible reasons Cannon is moving slowly:

  1. She is being ultra cautious because she doesn’t want to be overturned again on appeal.
  2. She has zero experience with the Classified Information Procedures Act (CIPA) and the Presidential Records Act (PRA) so she’s on a steep learning curve. These are complex pieces of legislation. If you don’t believe me, click here and start reading.
  3. Given the complexity of the law and her inexperience, she’s having trouble keeping this case going forward along with the rest of her workload.
  4. She is deliberately dragging her feet to help Trump.

In April, a reader asked me to tell her what was happening with Judge Cannon. She said, “You have been keeping me sane for years. I need you to inject some sanity into this.” So I said:

“Trump has lots of trials and court cases. In the classified documents case, he got lucky and drew a judge who was sympathetic to him. In his other cases, he wasn’t so lucky.”

Later I gave a similar answer on Mastodon. An angry person responded with:

So we’re just supposed to accept that kind of corruption?

(This person was particularly annoyed when I told him that the solution to bad judges is electing better candidates because judges are either elected or appointed by people who are elected. I suspect he wanted a quicker solution.)

Because a few people in their comments to me last week described Cannon as “corrupt,” I started poking around for the source. I wanted to find out if there was evidence of corruption.

First, I googled “Cannon” and “corrupt.” Nothing came up in traditional news reporting, but there were lots of results on Podcasts, Substack, and social media. The first item that came up was this from a legal pundit with a Substack account:

Judge Aileen Cannon shows us what judicial corruption looks like with her help of Trump. This undermines confidence in the judiciary.

I clicked and learned from an emotion-packed newsletter that the evidence of corruption was that Cannon is trying to help Trump win the election so he will appoint her to an appeals court. (This, of course, is pure speculation.) Other evidence of corruption offered in the newsletter included: (1) the prosecution is deeply annoyed with Cannon and (2) her rulings help Trump.

Newsflash #1: Court rulings often help one of the parties.

Newsflash #2: It is not unusual for a judge to be sympathetic to one of the parties. In criminal cases, at least when I was practicing in California, judges were far more often biased in favor of the prosecution. The stats support this. Prosecutors win more than 90% of their cases. The reversal rate for appeals in criminal matters in California is less than 5%. So it probably isn’t just in the imagination of defense lawyers that judges more often side with the prosecution. When judges seemed biased against my clients, it was annoying and often discouraging (because c’mon all my clients were innocent) but not corrupt.

Newsflash #3: If the prosecution is annoyed with a judge, this doesn’t mean the judge is corrupt.
It’s possible that political pundits, who are accustomed to judges showing sympathy to the prosecution, are genuinely flummoxed when the opposite happens.

Newsflash #4: There are bad judges. Sometimes good judges make bad decisions. For perspective, one person who wrote to me said:

If you try enough cases you will win one you ‘never’ should have won and lose one you ‘never’ should have lost. Both experiences are humbling, and I know this from personal experience. Thank you trying to help readers stay grounded.

I searched for “Judge Cannon” without “corruption” and an opinion piece in The New York Times told me that her delay was “inexcusable.” For comparison, a Google search for Clarence Thomas brought up “conflict of interest” and articles about the large sums of money that Thomas has accepted.

Next, I did a search on Twitter for “Cannon” and “corrupt” and hit pay dirt. This came up first:

Notice how much engagement those posts received. I watched the clip, which you can see hereLisa Rubin, a legal pundit who got her start working for Rachel Maddow, said:

[Cannon] has a number of motions that have even yet to be scheduled that are required under the Classified Information Act. She has a number of motions that have been fully briefed for months now on which she has made no decision. I wouldn’t venture a guess when this case would be ready for trial, and I believe that is by design.

I continue to be disappointed by Aileen Cannon in her execution of the role of federal juris. I also think, based on some reporting by David Lat, that this is a judge who is overwhelmed and is second-guessing herself at every corner. She seems to be overwhelmed with anxiety about the import of the case.

A combination of insecurity in your own decisions, the gravity of the case before you, and maybe also some inclination to slow walk where you don’t have trust in yourself — that’s a toxic brew and we are all drinking it right now.

The only facts offered in the above clip are that Cannon hasn’t scheduled a number of the motions and hasn’t ruled on others that have been fully briefed. The rest is an emotionally laden stream of speculation. It’s also confusing. Is Cannon delaying things by design? Or because she is overwhelmed? Is she being ultra-cautious after being overturned twice on appeal?

It is not clear from this clip how Cannon’s slow pace is a “toxic brew that we are all drinking,” but it sounds really bad.

From Rubin’s monologue, a blue-check Twitter account with a large following concluded that Cannon is “unhinged.” It seems to me that “unhinged” is the opposite of an “inclination to slow walk where you don’t have trust in yourself” but I see how the monologue, while saying nothing very specific, would leave a person angry and frightened.

This post also came up in my search for “Cannon” and “corrupt”: (You can always count on Larry Tribe to get in on the act.)

The banner under Chris Hayes says, “Judge Cannon Delays Trump Case Citing Backlog of Motions She Has Yet to Rule On.” If you are unfamiliar with how Twitter works, Larry Tribe is offering his reaction to a clip of Chris Hayes.

To find out how Cannon’s “delays citing a backlog of motions” means we are in danger of “going down the tubes,” I listened to the Chris Hayes monologue. You can listen to it here. Hayes said:

The problem becomes what to do about it. And the only answer I can come back to (and I’ve thought about this a lot at the human level) is shame. Norms. Because in the end, remember, that’s what saved us the last time around.

Yes, the law helped, right? But again, if the DOJ had bent to Trump’s will, if there had been 3 or 4 lawyers at the top of that Department of Justice who were willing to send the letter baselessly claiming there was widespread voter fraud, or if Mike Pence had agreed to throw out the electors from the swing states Biden won, if his lawyers had advised him he could do that, I don’t know, no one knows what would have happened.

All we’ve got are individual people formed by the norms and institutions they are embedded in making decisions, hopefully coming to the right conclusions and acting in good faith. Or at the very least, bowing to some sense of public pressure or shame not to do the wrong thing.

So in this case, the least we can do now is state plainly and openly that what Trump-appointed judge Aileen Cannon is doing is a scandal. When our judges don’t act in good faith, when they work only to weaponize the judiciary in an effort to achieve a desired outcome, we are in very dangerous territory. That is especially true of Donald Trump effectively running to finish the job he started on January 6, a job that can only be completed if the judiciary allows itself to be corrupted. And right now, the signs are not promising.

It seems to me that anyone listening to Chris Hayes ominously comparing Cannon’s delays to the attack on January 6 would feel terrified and confused. But as far as I can see, the only fact relating to Judge Cannon in the above clip is given on the banner: “Judge Cannon Delays Trump Case Citing Backlog of Motions She Has Yet To Rule On.” The rest is a mishmash of emotion, speculation, accusations, and a false equivalence.

I glanced at the comments. No surprise, people were confused and alarmed. The comment with the most engagement was someone asking, “Why is there nothing in place to stop her?” I was recently asked a similar question. A reader wanted to know how Cannon can get away with what she is doing.

In this blog post, I set out to prove that if people stopped listening to legal pundits, they wouldn’t feel confused and they wouldn’t feel like they need help decoding the news. I think I could rest my case right here. I don’t think an ordinary person following fact-based news would compare Cannon’s handling of the classified documents case to the attack of January 6 or think we are all being forced to drink a toxic brew.But let’s take a few more comments that came to me after last week’s blog post. This person said:XX [an anonymous Twitter account who claims to be a lawyer] says that CIPA doesn’t figure into Cannon’s delays because she hasn’t done anything with the CIPA motions.

That makes no sense to me. If she hasn’t ruled on the CIPA motions, why can’t the sheer complexity of CIPA be reason it is taking her so long?

Hey Teri. Lawyer X looked Cannon’s docket, her planned hearings (most of which he thinks are flimsily based), and the way her schedule of hearings line up with both Trump’s election themes, and events on Trump’s election calendar. As I read Lawyer X, he seems to be saying that this is too structured to be coincidental.

I removed the lawyer’s name because I didn’t confirm that he said this. Lawyer X posts almost nonstop on social media, my reader didn’t include a link, and I got tired of wading through his feed. But let’s assume a lawyer said that the hearings are “flimsily based” and Cannon’s schedule is “too structured to be coincidental.”

To begin with, I have no idea what it means for scheduled hearings to be “flimsily based.” It is common for hearings to be scheduled on motions. I also have no idea what it means for a judge’s calendar to be “too structured.”

The sense my reader had, though, was that the structure of Cannon’s calendar suggests that Cannon is secretly structuring her schedule to help Trump’s campaign. If that’s what is going on here, it’s an example of conspiracy thinking. Conspiracy theorists reject the possibility of coincidence (in other words, they confuse chronology with causation). They read tea leaves for clues that people in power are behaving corruptly. They then take their conclusions as facts.

It is certainly possible that Cannon sat in her office and thought to herself, “How can I structure my calendar to offer the most assistance to Trump’s reelection campaign?” but it is an unsubstantiated allegation. It also strikes me as less probable than the other alternatives.

The alternative that strikes me as most probable is a cross between her inclination to agree with Trump because she thinks he is right and her fear of being overturned again by the appellate court. It’s all speculation though. All we know is that she is moving slowly and she sides with Trump more often than with the prosecution.

In her book, Wrong: How Media, Politics, and Identity Drive our Appetite for Misinformation, Prof. Dannagal Goldwaith Young offers this pattern for conspiracy thinking:

  1. People face a situation that is confusing or seems incomprehensible. (The judge is moving slowly and is more often sympathetic to Trump.)
  2. They look for a way to assign blame.
  3. They grasp onto an easy-to-understand theory that assigns blame. (It must be because the judge is corrupt.)
  4. The theory will be reinforced if people in their community and people they identify with (or look to as an authority) also hold the theory. (Look! Larry Tribe agrees!)
  5. Holding a conspiracy theory gives them a renewed sense of energy. Instead of feeling out of control, they have an explanation.
  6. Fueled by anger, they become defiant—but they have a direction. They feel they have agency. They can get behind a banner. They feel back in control.

I have observed that not everyone gets to #5 and #6. While there are plenty of True Believers who march confidently behind Larry Tribe and wave the banner, others feel confused. I suspect the people who are confused are the ones who ask me to inject some sanity into the discussion.

Lawyer X, by the way, who thinks Cannon’s calendar is “too structured to be coincidental,” often asks for donations to support his work. Beware of someone who confirms your biases and asks you for money.

See how self-serving all of this is? First, the lawyers confuse people. Confused people then turn to lawyers for explanations. Lawyers thus create a demand for their punditry services, which they then monetize.

I rest my case.

One reader wrote this:

I do think there is an opportunity for you to create an online course on how to decode the media / social media, using all the theory you’ve pulled together on your blog and real life case studies.
People would pay money to access your expertise on the subject.

You don’t need a course. If you feel confused about legal proceedings and think you need a lawyer to decode the news, do the following:

  • Stop listening to pundits who offer speculation (which is most of them, most of the time)
  • develop the habit of distinguishing speculation from facts,
  • take all speculation with a grain of salt,
  • if speculation is causing you to feel a strong emotion, recognize that the speaker is manipulating your emotions, and
  • stay anchored to facts.

A few people asked me some version of:

From where would you suggest we get reliable, non-rage-inducing information? Also, it is possible to read or listen to commentators and not simply believe or accept everything that is said?

The way to evaluate any source of information is to balance how much is devoted to facts and how much is devoted to speculation. Facts are verifiable. All writing has some slant, so be sensitive to the slant. If what you are consuming is mostly speculation and opinion, you are being entertained and your emotions are being manipulated. On the other hand, if what you are consuming is mostly facts, you are being informed.

I also received this question about juries:

Because jurors can’t un-hear or un-see, how does having things stricken from the record work?

That is an interesting question. I may devote a future blog post to a discussion of trust (and distrust) of juries.

I concluded last week’s post by asking if anyone has heard any good lawyer jokes. A few people sent lawyer jokes. As a reminder that lawyers have not traditionally been looked to as Knowers of All Things, I will offer a few of the jokes:

The Post Office tested a series of Famous Lawyer stamps. But people didn’t know which side to spit on.

* * *

A rich man was dying and called for his priest, doctor, and lawyer. He gave them each $10 million cash and told them to put it all in his casket. At his funeral, each slipped an envelope into the casket.

The doctor later admitted he held back a few million to help the sick.

The priest said he held back a few million to feed the poor.

The lawyer proudly said he wrote a check for the full amount.