“Once You Have the Courts….”

The first part of this story is obvious, and would not even shock Captain Renault:

A judge that Trump appointed sided with Trump in a criminal case against Trump, in a ruling that stunned virtually every credible legal expert. 

Also: dog bites man, water is wet, and the Jets suck. 

Yeah, yeah, there’s a lot of legal mumbo jumbo and dervish-like spin from the right wing trying to explain and defend this decision, the standard GOP tactic when it has shamelessly exploited the system for its benefit and wants us to believe it has not. So before we go into the details, let’s step back and take a one-over-the-world view of the philosophy—and the threat—undeniably underpinning this decision:

That the modern Republican Party does not bat an eye at weaponizing any aspect of American life to advance its own autocratic agenda, no matter how clumsy or hamhanded that effort may be. Amount of fucks they have to give? An Elvis Costello-like less than zero. 

The judicial system is very high on that list. Or in the words of Jason Stanley, a philosophy professor at Yale, and the author of How Fascism Works

“Once you have the courts you can pretty much do whatever you want.” 

A ZERO ON ROTTEN TOMATOES

The full array of America’s aforementioned legal experts have already thoroughly summarized the faults with Judge Aileen Cannon’s eyepopping decision granting Trump’s request for a special master in the government documents scandal, so I’ll recap only briefly:

Andrew Weissmann, former general counsel to the FBI and lead prosecutor in the Mueller probe, called it “Nutty. Crazy. Appealable.” His fellow New York University law professor Chris Sprigman said the ruling was “partisan hack judging,” while the prominent attorney Ted Boutrous said “Judge Cannon’s order is riddled with fundamental legal errors and is the opposite of judicial restraint.” Former acting Solicitor General Neal Katyal wrote: Frankly, any of my first year law students would have written a better opinion.” 

Samuel W. Buell, a professor at Duke University law school, told the New York Times that the ruling was “laughably bad,” adding, “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”

Even Bill Barr thinks the ruling is bullshit—and what Trump did re Mar-a-Lago was outrageous, and that the DOJ is dead right, and that he’s gonna be indicted. (But will he still vote for him? In the same breath Barr said he hopes that there will be no indictment because of the ostensible damage to the republic. No word on his thoughts re the damage from not indicting.)

So from whence comes this not-so-five-star ruling?

Judge Aileen Cannon of the US District Court for the Southern District of Florida was confirmed by the GOP-controlled Senate after Trump lost the 2020 election, part of Mitch McConnell’s mad rush to put as many of Donald’s nominees on the bench as possible while he still could. With only 12 years experience as a lawyer (and only 38 years of age when Trump nominated her for that lifetime gig), Cannon barely met the minimum standards to be rated “qualified” for the job by the American Bar Association. She had also been a long-time member of the radical Federalist Society—and I do think it’s fair to call it radical—which has been on a decades-long campaign to pack the judiciary at all levels with far right wing jurists. 

Beginning to make sense now?

In substance, her ruling allows Trump to pause a portion of the DOJ investigation while a special master reviews the material seized from Mar-a-Lago, predicated on multiple grounds including executive privilege and potential harm to his reputation. In The Atlantic, Andrew Weissmann writes that “Cannon’s ruling is untethered to the law.”

Let’s start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. 

Why would others under investigation not have the same claim? Is the extra protection of a special master—and the delay it entails—applicable to all public figures?….And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? 

The law, it seems, is simply different for Trump and his close allies.

Vox’s Ian Millhiser called the ruling “a trainwreck of judicial reasoning” and “egregiously wrong,” adding that the judge “mangles the law so completely that it’s hard to know where to even begin in criticizing her opinion.”

(Cannon) argues fairly explicitly that Trump is entitled to special rules that apply to virtually no other criminal defendant, because he used to be a powerful person. This opinion is an affront to anyone who believes that all Americans, whether a pauper or a former president, are subject to the same laws. 

The Daily Beast’s Shan Wu, a former federal prosecutor, noted that Cannon “mostly seems concerned with protecting Trump’s reputation” and her fear of “the potential injury to Trump arising from the ‘threat of future criminal prosecution’ is, in particular, poorly thought out.” 

In the judge’s apparent zeal to protect Trump, Cannon seems oblivious to the fact that every single person under investigation could assert this same potential injury, and any competent criminal defense attorney will try to use her decision as a basis for enjoining criminal investigations and prosecutions of their clients. Her opinion could open a floodgate of baseless requests for injunctive relief, which will jam the criminal justice system, even if most of them will be denied in slam-dunk fashion.

She even pointed out the stigma attached to Trump having to suffer the indignity of a search warrant being conducted on his home. But she failed to explain how the appointment of a special master can undo that stigma—given that the search already happened. Her opinion also suggests that a special master is necessary because of leaks to the press about the contents of the seized documents—as though a special master has some magical power to stop such leaks.

(Though Wu doesn’t say so, it bears mentioning that the public only learned of the August 8 search at all because Trump himself announced it. Absent that, the DOJ would surely have been happy for the entire event to remain undisclosed.)

Addressing this “reputational harm” Judge Cannon is worried that Trump will suffer, Yale law professor former FBI special agent Asha Rangappa agreed, tweeting: “The idea that an indictment would cause ‘irreparable reputational harm’ is…literally true for anyone, not just POTUS? Maybe don’t crime in the first place.”

Some, like The Week’s Joel Mathis, noted that it’s not even clear that Cannon can actually halt the investigation. “To my mind, this is one of the weirdest parts of Judge Cannon’s order,” law professor Orin Kerr wrote in a Twitter thread, as it “amounts to a judicial takeover of the executive branch’s investigation. I don’t see how a federal judge has the power to do that.” (More on that here.) 

On Substack, the attorney and incisive legal analyst Jay Kuo notes that there is no record in American jurisprudence of a civil court assessing a question like a special master ever enjoining a criminal investigation. Steve Vladeck, a constitutional law professor at the University of Texas law school, told the Washington Post, “It’s stunning insertion of the courts into what has historically been exclusively executive process. This is just not the way our legal system is set up.” If Cannon’s decision stands, the Post reports, “legal experts said, it would allow the targets of investigations to disrupt law enforcement operations before a case is charged or goes to trial.”

No—not all “targets of investigations.” As Ryan Goodman, an NYU law professor and former Defense Department special counsel, told the Post: “The opinion makes explicit what many of us have understood: There are special rules for former President Trump.”

WHITE HOUSE PRIVILEGE

The issue of executive privilege is another headscratching part of the judge’s ruling. As Vox’s Millhiser writes: “Cannon’s opinion is not simply wrong, it plays with legal concepts, such as executive privilege, which she seems to barely understand.” 

Yes, there is a spurious school of thought that holds that the Supreme Court has “not settled the question of whether a former president could assert executive privilege against the administration of the sitting president.” Cannon plainly bought Trump’s absurd claim on that count, even though he’s not the president any more, which it to say, the person to whom “executive privilege” by definition applies. As University of Baltimore law school professor Kimberly Wehle reminds us, “There’s only one president at a time under the Constitution, and in this moment, it’s Biden.”

And that’s not all. Millhiser:

An even more basic reason why executive privilege should not apply to this investigation is that Trump is trying to assert executive privilege against, well, the executive.

(I)f Congress or a court seeks a presidential document, that might raise executive privilege concerns. But the FBI, and the Justice Department more broadly, are part of the executive branch. And there are no separation of powers concerns raised by one part of the executive branch obtaining documents that allegedly belong to another part of the executive branch. 

Weissmann: 

(Cannon) does not explain how the former president has the power to assert executive privilege; how executive privilege could restrict documents from being shared with the executive branch (which DOJ is part of); how it could apply to any documents at Mar-a-Lago that emanated from agencies like the CIA, NSA, or FBI; or why it would not be outweighed by the fact that the documents are needed in a criminal investigation (an interest that the Supreme Court found would overcome a privilege assertion by former President Richard Nixon). And even if some of the documents are covered by executive privilege, the documents would, by law, still have to go to the National Archives and not be returned to the person who absconded with them.

(In any case, the government has already reviewed all the materials, which—and this is the real rub—Trump does not own and is not entitled to have. Weissmann proposes an analogy in which a bank robber who has a million bucks in his possession when the cops come knocking, then demands the money back and a special master to review the evidence even before he is charged. And the judge halts the criminal case for the duration of that review.)

Even if Trump were allowed to invoke executive privilege, it does not offer blanket immunity, especially when it comes to matters of national security, like stealing top secret documents related to nuclear warfare. (By the by, in arguing that the special master needs a TS/SCI clearance, Trump’s own lawyers give the lie to his own claim that the material in his possession was somehow magically declassified.)

On that front, David Ignatius writes in the Washington Post that “Cannon doesn’t seem to fully recognize the national security stakes here.”

How can the US government conduct a national-security damage assessment about possibly leaked classified documents if FBI criminal investigators can’t look at the documents or interview witnesses to figure out who might have had access to the material? That supposed division of labor—drawing a neat distinction between “investigative” purposes and a “national security” assessment—might make sense to Cannon. But some experienced national security lawyers are puzzled, to put it mildly.

“It is impossible to square these two rulings,” says Jamie Gorelick, a former deputy attorney general under President Bill Clinton. Jeff Smith, a former CIA general counsel, explains: “It’s not clear from Cannon’s opinion that she understands what’s entailed in a damage assessment. I think she must believe that all they have to do is look at the documents and decide what harm would result if they were leaked or given to someone without authority.”

Robert Litt, a former ODNI general counsel, observes: “Typically, when you do a damage assessment … you know who has access to the information: Edward Snowden released information to the world; Aldrich Ames to the Russians. I don’t remember ever seeing one during my time where we knew that information had been mishandled but we don’t have any idea whether anyone had access or who.”

THE APPEAL OF AN APPEAL

So our hostile foreign adversaries are surely cheered by Judge Cannon’s ruling, and the way it exacerbates this ongoing national security disaster. And it’s no coincidence that Team Trump is equally pleased. 

Millhiser hits the proverbial nail on the metaphorical head when he says that this order “could also allow Cannon or other judges to delay this criminal investigation into Trump indefinitely” and that “it’s far from clear that higher courts dominated by Republican appointees will stop her.” Which was very much the intent. 

Of course, the DOJ can appeal, and many—Weissmann prominent among them—have been adamant that it should. But that would only further delay matters, playing right into Trump’s hands, as the case could languish in the system for months or even years, certainly past the 2024 presidential election. More to the point, it is by no means clear that the Department would win that appeal in the Eleventh Circuit, where six of the 11 judges are Trump appointees The same is true if the case goes to the Supreme Court, where Trump will surely take it, with its 6-3 right wing supermajority, half of whom—fully a third of the Court—are Trump appointees. 

Some, like Slate’s Norman Eisen and Fred Wertheimer, have suggested it might just be better to get the special master onboard and get it over with. Others have mused that having a special master might even help the DOJ by inoculating against allegations of partisanship. But that claim laughably assumes that the American right wing will ever behave in good faith, or give up its perpetual claims of Christ-like persecution. And, of course, there is also the risk that the special master could hand down a damaging, Trump-friendly ruling, especially if he or she is yet another MAGA hack.

But Shan Wu argues that the risks of an appeal “are worth taking because Cannon’s decision is so potentially damaging to the DOJ’s ability to investigate and potentially charge Trump (and others) in cases not only arising from Mar-A-Lago, but also any case in which Trump seeks to assert executive privilege defenses—including his actions in Jan. 6-related potential prosecutions.” Millhiser concurs, arguing that by not appealing the DOJ will have given “up its shot to end this highly partisan judge’s supervision of one of the most sensitive criminal investigations in US history.”

Above all, as Eisen and Wertheimer point out, an appeal is necessary to prevent classified US government documents being returned to Trump and his lawyers—perhaps the most mind-blowing possibility, because “the court treated Trump’s request as a motion for the return of property under Federal Rule of Criminal Procedure 41(g)—a completely unacceptable result here.”

[checks GPS to make sure we have not one through the looking glass with Alice]

As this goes to press, the question has been answered, with the DOJ announcing its intent to appeal Judge Cannon’s order. In a separate filing, it also asked her to allow the criminal investigation to proceed while the special master’s review is underway, and to give that special master access only to unclassified documents, and not classified ones. Which makes perfect sense. If the point of a special master is to sort out any personal, privileged materials from the government ones seized in the search, the classified ones are in the latter category by definition. Indeed, it should have been so ordered from the jump. 

How will all this play out in a legal climate which, as we have established, is toxic with Republican malice, mischief, and malfeasance? We don’t know, but it’s encouraging that the DOJ—which appears to have been a step ahead of Trump at every phase of this case—is taking such an aggressive and pro-active approach, with Slate’s Eisen and Wertheimer praising the shrewd nature of the appeal in particular. They are optimistic that it will succeed. I hope they’re right.

Watch this space.

IF I DID IT, VOL. II

In a piece titled, “Trump-Appointed Judge Cuts Trump a Huge Break,” Truthout’s William Rivers Pitt writes:

Donald Trump has caught yet another break. He will get to dig in behind his plans to run for president again, and will use these legal maneuvers as fundraising tools even as he slathers himself in martyrdom. There are hundreds of Trump judges out there now, with three of them on the highest court in the land.

The legal system was built to prop up people like Trump, not to take them down. This is the world we live in, and although it might be enraging, it should not surprise us at all.

The fact that Cannon not only agreed to Trump’s request for a special master, but ordered the DOJ to halt its investigation—a move that not even Trump’s lawyers dared ask for—gives the game away. (Mercifully, Cannon did not grant some of the things they did ask for, like full access to the redacted portions of the underlying affidavit, including the names of witnesses against the Former Guy.) 

Another dead giveaway: Trump praised her decision, saying “it takes courage and ‘guts’ to fight a totally corrupt Department of ‘Justice’ and the FBI.”

In that sense, Cannon did a lot of the work for Trump’s hapless team that it had itself failed to do. Trump’s lawyers didn’t even file their very belated request for a special master until two weeks after the Mar-a-Lago search, at a time when the FBI had announced it had already completed its review of the seized documents. 

In that regard, the good news is that Cannon’s ruling applies only to materials seized in the August 8 search of Mar-a-Lago, and not to the already voluminous incriminating materials that were in DOJ’s hands prior to that, which in themselves ought to be sufficient to prove violations of the Presidential Records Act and Espionage Act, as well as obstruction, particularly by his lawyers Evan Corcoran and Christina Bobb, and possibly even by the micromanaging Trump himself.  In other words, as Kuo says, “the DOJ already has what it needs to prove that Trump was in possession of sensitive government documents he had no right to have.”

But the possibility that a compromised federal judiciary may try to protect Trump remains a very real danger. 

Pitt describes MSNBC’s Joy Reid asking Elie Mystal, justice correspondent for The Nation, “How on Earth could a judge who made it through law school think that Donald Trump can take the property of the government, the federal government, take it home and then have to have a special master decide whether they can investigate him?”

“Because she’s biased and corrupt,” Mystal replied. “I’ve been saying this since he took office. When you allow Republicans to control the courts, you get nothing. Trump judges do not believe in the rule of law. They do not believe in precedent. They do not believe in facts. They do not believe in logic. They just believe in whatever’s going to help Donald Trump and they’ve proven it again and again and again.”

After the Mueller probe was hijacked, distorted, and ultimately neutered by Trump and Barr in March 2019, I compared Trump to OJ Simpson as the wildly undeserving beneficiary “of honorable people following the rule of law—a rule of law that Trump himself holds in utter contempt, constantly besieges, and would deny to everyone else.” But in the Mueller inquiry Trump benefitted from the scrupulous fairness of his foes—overscrupulousness, some might say—and their admirable, almost naive, and ultimately fatal adherence to norms and protocol. In this case, however, it’s the right wing’s dishonest and self-serving exploitation of the judicial system that is helping him.

Increasingly the right doesn’t even try to hide it.

Heather Cox Richardson writes that “Bloomberg News’s Zoe Tillman recently revealed that seven senior officials who served in Republican administrations, including two former governors, a former attorney general, a former acting attorney general, and a former deputy attorney general, asked to send in a ‘friend of the court’ brief in opposition to Trump’s request (for a special master). Cannon denied their request, saying the court “appreciates the movants’ willingness to participate in this matter but does not find…[it]…warranted.’” 

Former US Attorney and Los Angeles Times legal affairs columnist Harry Litman said he didn’t think he’d “ever seen a court reject a proposed amicus brief, especially from eminent amici like the Former GOP prosecutors Cannon just refused to hear from.”

As Millhiser asks: “Why would a judge do this unless they are trying to advertise the fact that they are not open to opposing arguments? Just accept the…brief and then don’t read it if you don’t want to make a public spectacle out of not caring what anyone says.”

A RATION OF SHIT

Famously, the American right has engaged in a determined, methodical, decades-long campaign to gain control of the courts, the same way it has doggedly run candidates in local, county, and state races in order to obtain a chokehold on the US political system at the ground level. I don’t blame them a bit for that very smart and farsighted approach—only for the loathsome policy ends that they intend for those judges and elected officials to pursue. Shame on the Democrats for not being similarly tenacious and strategic, especially once they saw what the Republicans were up to.  

To reiterate: “Once you have the courts you can pretty much do whatever you want.”

While it is true that a large number of Trump-appointed judges ruled against him in his attempts to overturn the 2020 election, there is no guarantee that that pattern will continue going forward. In fact, should the Republicans regain power they are almost certain to do everything they can to reverse that trend by appointing even more slavishly loyal pro-Trump judges who can be counted on to rule as the party wishes and not show even a hint of backbone or principle.

The Washington Post’s Paul Waldman writes:

This is our future as long as Trump judges remain on the bench. In every election, every issue debate, and every controversy, the first thing Republicans will do is prepare their lawsuits and start shopping for Trump judges who will be guaranteed to rule in their favor. They won’t win every case; they did fail to get the courts to overturn the 2020 election, and even the right-wing supermajority on the Supreme Court will rule against them from time to time. But they got the judiciary they wanted, one dominated by hacks whose respect for the law will almost always yield to the GOP’s partisan interests. And they’re going to use it.

The party that once decried judicial activism—when practiced by Democrats—sure is keen on engaging in it itself. 

Friends of Judge Cannon assure us of her integrity. Perhaps they are right, in the sense that she may not be a hand-rubbing, mustache-twirling villain knowingly perverting the justice system to favor her ideological comrades. I don’t know, but I’m willing to take their word for it. At the same time, it’s impossible to square this decision with a picture of her as a nonpartisan jurist unswayed by the benefits that would accrue to her party as a result of her decision, especially given the tortured, precedent-defying logic behind it.

My surmise is that Judge Cannon is a prime example of an educated, intelligent public servant who has nonetheless talked herself into absolutely indefensible, self-aggrandizing behavior. Whether or not she can sleep at night, I dunno; that’s a matter of how high the Kool-Aid content is in her bloodstream. But I do know that rationalization is a powerful drug, one that dwarfs food, sleep, or sex. (As Jeff Goldblum’s character quips in The Big Chill: “You ever gone a week without a rationalization?”)

But young Ms. Cannon is the least of it. A lengthy profile of Samuel Alito in the new issue of the New Yorker makes clear how the new archconservative majority on the Supreme Court feels gleefully unconstrained in its power to remake America along retrograde lines. We are already watching it rapidly unfold, with Dobbs, with West Virginia v. EPA, with Kennedy vs. Bremerton School District, with New York State Rifle & Pistol Association v. Bruen

Heather Cox Richardson:

In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now trying to take control of our federal government permanently.

Like Cannon, the conservative justices may have convinced themselves of the twisted correctness of their rulings, which somehow conveniently always favor the right wing position on any given issue. (Except Alito, whose snide opinion in Dobbs sure makes it feel like he relishes tromping on the law, and on the beliefs of those fellow Americans with whom he disagrees.)

Perfect circle: the man who secured Alito’s place on the Court, after George W. Bush’s personal attorney Harriet Miers was laughed out of contention, was Leonard Leo, the founder and CEO of the Federalist Society. Just three weeks ago, a new right wing lobby group called the Marble Freedom Trust organized by Leo was the recipient of an unprecedented, record-breaking donation of $1.6 billion from an anonymous “dark money” donor—by some accounts, the largest single donation of that kind in American history. In a ferocious irony, such a donation, from a source under no obligation to disclose his identity, was possible—and legal—only because of Citizens United, the 2000 Supreme Court decision that the Federalist Society itself methodically engineered. As a result, Leo and the Federalists will now have even more power in our legal system, an ouroboros-like infinite loop in the perpetual motion machine of right wing American political corruption. 

(ProPublica later revealed that the donor was Barre Seid, a 90-year-old electronics mogul who has already given tens of millions to conservative groups. Icing on the cake: the $1.6B donation itself is suspected to do double duty as a tax dodge, as it is the exact price for which he sold one of his companies this year.)

Next up: Moore v. Harper, about which I have written at length, here and here, a case the US Supreme Court is hearing this term, which would affirm the risible “independent state legislature” theory, and conceivably give minoritarian Republican-controlled state legislatures the power to disregard the popular vote and assign that state’s electors to the candidate of their choice. Just this week the chief justices of all fifty state Supreme Courts (I’ll repeat that: all fifty) plus the District of Columbia and various US territories weighed in with an open letter pleading with the US Supreme Court to reject the Republican position in Moore. Just to be clear, that includes the chief justices of such ruby red states as Alabama, Mississippi, Idaho, the Dakotas, Missouri, West Virginia, and on and on. That’s how absurd and dangerous the ISL is. But that doesn’t mean that Alito & Thomas & Gorsuch & Kavanaugh & Barrett won’t endorse it. (Four of them have already intimated that they will.) 

OF AUTOCRATS AND ICEBERGS

In short, Judge Cannon’s ruling on the Mar-a-Lago search is but the tippy top of an enormous submerged judicial iceberg into which American democracy is sailing. How that particular case will play out very much remains to be seen. The appeal is cause for hope. But as Jay Kuo writes, the brazenness of Cannon’s ruling in the first place “should serve as a warning sign that our federal judiciary is deeply infiltrated by Trump loyalists who can act like landmines in our legal system for those seeking accountability by the former president and his cronies.” 

Make no mistake: The GOP intends to install itself in permanent, autocratic, one-party minoritarian rule going forward, and the transformation of the judicial system into a shameless tool of that autocracy is a crucial part of that. 

Let’s say it one last time:

“Once you have the courts you can pretty much do whatever you want.”

*********

Photo of Trump in illustration: Saul Loeb / AFP via Getty Images

3 thoughts on ““Once You Have the Courts….”

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