The initial impulse to read judge Aileen Cannon is pseudo-scientific 93-page elimination from the case of classified documents against Donald Trump for a list of legal errors and overreaches that demonstrate his brazenness and the possibility of his reversal. The opinion, which throws out the case on the dubious premise that the special counsel Jack Smith was not properly appointed, can be a target practice for first-year law students who have learned about statutory construction and precedent, principles that Cannon mangles when he strains. let the case go away.
But these conventional criticisms are no match for Cannon’s unconventional and embarrassing work. To analyze the case in terms of the nuances of the special advisory law or Cannon disregard of United States against Nixon is to miss what is right in front of them.
It is more useful and interesting to think about the dismissal as the first court decision of Project 2025, where the rule of law took a shameless backseat to the principle of loyalty to Trump.
Cannon has been operating under that principle with greater or lesser subtlety since he accepted Trump’s invitation in 2022 to render the 4th Amendment challenge to pedestrians searching the Mar-a-Lago property illegal. gumming from work.
This is an illustration of the gap between normal assumptions about judicial propriety and Cannon’s in-tank supervision of the case, which required many, including me, to accept the only hypothesis consistent with his continuous destruction. Cut-and-dry criminal cases: this is a matter of loyalty, not law.
That said, some aspects of his own opinion screamed out in response. First, although Cannon spoke repeatedly about the structural principles of the Constitution. appointment clause and separation of powers, the dismissal does not provide a constitutional analysis. Rather, it revolves around the fairly humdrum question of whether there is some statute authorizing the appointment of a special adviser as the Constitution clearly allows.
Second, the dismissal owes an enormous intellectual debt to one man, Justice Clarence Thomas, who raised the issue in agreement with the Supreme Court’s ruling on the matter. presidential immunity. Not content with joining the court’s extraordinary majority opinion, Thomas also chose to “write separately to highlight other ways that this prosecution could violate our constitutional structure,” floating a theory held by Cannon.
Despite Thomas’s well-known inclination to absolutist, the first principle opinion, however, even he stopped short of endorsing the theory Cannon adopts, noting with uncharacteristic tentativeness that “not sure” whether Smith’s office was “established by law.” However, the parlor room conjecture by a single justice was enough for Cannon to walk.
Third, Cannon expressly challenged the Supreme Court’s absolute finding, in US vs. Nixon, that Congress gave the attorney general “the power to appoint subordinate officers to assist him in the performance of his duties.” His solution to this problem is to publish a statement that is often called a “dictum” or “passing comment”.
So what now? Some observers have taken Cannon’s nuclear solution as a positive development because it will provide a clear basis for a reversal by the 11th US Circuit Court of Appeals as well as a possible Justice Department motion to overturn him. And if the circuit court disregards Cannon for established law, reversal must be granted. Recusal is a more serious step, but given Cannon’s wrongdoing with the search warrant and the reported denial of his fellow judges’ requests to dismiss this case, I think there is a strong prospect for a remedy.
Alternatively, federal prosecutors may try to refile the case in a different district. Either way, I suspect we’ve seen Cannon’s final decision on the matter.
Of course, after making the cottage industry fail to resolve issues in the case — there are nine contested motions that Cannon has yet to rule on — the judge released him at a time that was inconvenient for Trump’s cause. The appeals court probably won’t have time to reverse the decision before the election, which would ensure that Trump retains the political benefits of impeachment when he needs it. And if Trump wins the election, he will simply order the Justice Department to drop the case.
No one escapes the conclusion that Cannon has violated his oath to do justice without regard for others. Her earthly reward? It would certainly be consistent with Trump’s promised approach to a second term if he were appointed to the higher court. He may find himself with new friends in the circuit court who can turn him around. How can he shake hands?
Harry Litman is the host “Talking Feds” podcast. with “Say San Diego” speaker series. @harrylitman
