Are we getting tired yet? Are we sickened by all we see coming out of the extreme right, the former guy & his minions, and the exaggerated evangelicals? Would we like to just go somewhere ‘far away from the madding crowd’ and live out our days in peace? Yeah … me too. But guess what? That’s what they’re counting on … the right-wingers who would replace our Constitution with their bible, and replace our democracy with their theocracy are hoping we’ll get so exhausted by it that we’ll tuck our tails between our legs and slink off, leaving them to do as they will. But NO!!! We’re gonna all take a few nice deep breaths and remind ourselves what’s at stake here, then get back in the saddle and do whatever we can to stamp “PAID” on the lunacy that resides in the U.S. today.
I was enraged and incensed by the news that U.S. District Judge Aileen Cannon ruled to appoint a special master to review the Mar-a-Lago search, possibly delaying the Justice Department’s work that is certain to result in charges against Trump. The first thing I said was to call her a not-very-nice word meaning prostitute, for in my book she has prostituted herself … she indebted herself to Trump in exchange for a prestigious judicial appointment. And this week, he called in the debt. And she paid it, even though her decision goes against the people of this nation, goes against the rule of law, goes against everything she learned in her tenure at University of Michigan Law School.
I share here Robert Hubbell’s views of the horrendous decision …
Judge Cannon did everyone a favor.
7 September 2022
In one respect, Judge Aileen Cannon did everyone a favor in her decision to appoint a special master to review the Mar-a-Lago search. She wrote an opinion so awful and bereft of legal reasoning that commentators on all sides of the political spectrum are panning the opinion as an abomination. Indeed, they are falling over themselves to find adjectives, comparisons, and metaphors that adequately describe the havoc of her decision. Here is a fair sampling:
- Her decision is utterly lawless [and] she disgraced her position as an Article III judge. [Laurence Tribe @tribelaw.]
- [H]er order in this case is nonsense. [Joyce Vance, Civil Discourse]
- [A] trainwreck of judicial reasoning. [Ian Millhiser, Vox]
- [L]awless partisan hackery. [Dahlia Lithwick, Mark Joseph Stern, Slate]
- [U]ntethered to the law. [Andrew Weissman, The Atlantic]
- [A] political conclusion in search of a legal rationale. [Jessica Levinson, MSNBC]
- [D]eeply problematic. [Ronald S. Sullivan Jr., a Harvard Law School]
- [L]aughably bad. [Samuel W. Buell, a Duke University law professor]
And then there is Bill Barr, a man who destroyed his legacy to support Trump. Here is what Bill Barr told Trump’s supporters during an appearance on Fox News:
- The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways.
- [T]he government has very strong evidence of what it really needs to determine whether charges are appropriate . . . there’s some evidence to suggest that they were deceived.
- [N]one of [the government’s case] really relates to the content of documents. It relates to the fact that there were documents [at Mar-a-Lago] and the fact that they were classified and the fact that they were subpoenaed and never delivered.
My point is not to trash Judge Cannon’s integrity, intelligence, or fairness. She has already done so beyond my meager ability to add to the opprobrium already heaped upon her. Rather, the point is that Judge Cannon now understands she is universally regarded as the most incompetent, biased, and clueless federal district judge in the nation—and that is saying something!
How Judge Cannon responds to that stomach-churning realization is what matters. Will Judge Cannon attempt to undo her grotesque error by revising her order? Will she reject efforts by Trump’s team to exploit the legal gruel disguised as analysis in her opinion? Or will she redouble her efforts to serve as Trump’s surrogate defense counsel from her position on the bench in the Southern District of Florida?
The next few days will provide much more information about Judge Cannon’s intentions. I infer (read: speculate) that she is in legal waters way above her head and tried to kludge a remedy unsupported by the law. The result is a Frankenstein’s monster that will haunt her for the remainder of her career. Her decision is already being cited as “The Loose Cannon Rule,” under which criminal defendants can seek a stay of federal criminal proceedings whenever evidence is seized under a search warrant.
The DOJ has many paths forward, most of which are legally complicated and equally unsatisfactory. But as Bill Barr also noted in his comments to Fox News, the decision is more like a “rain delay.” One of the most likely steps is for Merrick Garland to proceed with the special master process and appeal the order staying the investigation—which is a constitutional insult of the highest order.
In her order, Judge Cannon has told the Article II branch of the government that it may not perform the duties granted to it by the Constitution. As Neal Katyal noted yesterday on MSNBC, none of his first-year law students at Georgetown would suggest such an outlandish and unsupported violation of separation of powers. Although the University of Michigan Law School is not the guarantor of the future performance of its graduates, the faculty at the U.Mich.Law should be revising their syllabi to add a few extra sessions on separation of powers—not to mention a deep dive into US v. Nixon. And judicial ethics. And legal research. And common sense.
In the end, Judge Cannon’s decision is so bad it cannot stand. The DOJ will find a way to circumvent the worst parts of her ruling. Trump stole classified documents, concealed them, lied about it, and refused to return them after being served with a grand jury subpoena. He is in deep trouble. If past is prologue, Trump will make his predicament worse by uttering new lies and issuing new admissions.