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July 15, 2024 - 7:55pm
The last 48 hours may come to be seen as decisive for Donald Trump and his presidential campaign. On Saturday there was the shocking attempt on his life by a would-be assassin. Then, today, the political world was again astonished — this time by a decision from the judge in one of the many trials against the former president. Judge Aileen Cannon dismissed the classified documents case in its entirety, ruling that the appointment of a special counsel by Attorney General Merrick Garland was unconstitutional.
Already, the decision has been met with howls of injustice by the media. As has been the case for the duration of this trial, news article after news article has attached a version of the term “Trump-appointed” to Judge Cannon’s name. The New York Times reported on “the ruling by Judge Cannon, who was put on the bench by Mr. Trump”. NBC News wrote of “U.S. District Judge Aileen Cannon, a Trump nominee”. Reuters made the same annotation, reporting: “U.S. District Judge Aileen Cannon, who was appointed to the bench by Trump”.
The insinuation is clear: the judge is biased or even corrupt because she was appointed by Trump. This comes after an intensive effort to get Cannon to recuse herself from the case.
However, legal scholars have found several aspects of the case problematic. One of the arguments in favour of the case proceeding is that special counsel Jack Smith’s role was no different to that of Robert Mueller, the special prosecutor who investigated Trump’s ties to Russia. But this may be backwards, because Muller also lacked constitutional authority. Indeed, according to some legal scholars, including a paper published in Notre Dame Law Review, in neither case did Garland have constitutional authority to make the appointment.
The debate over Cannon’s decision is further intensified by Trump’s role in her appointment, which critics use to question her impartiality. But if judicial appointments and familial connections are grounds for questioning impartiality, then both sides of the political spectrum have instances warranting scrutiny. In the so-called “hush money” case against Trump, the daughter of the presiding judge, Juan Merchan, heads a political consulting company whose clients raised nearly $100 million for the Democratic Party.
Beyond the legal technicalities, there is a glaring issue of selective prosecution that fuels claims of unequal justice. Hillary Clinton was never prosecuted for her use of a private email server that exposed classified information. President Joe Biden has similarly faced no charges for storing classified documents in his homes, as well as illegally sharing them with his ghostwriter, with age cited as a mitigating factor by special prosecutor Robert Hur.
For the past few months, much of the Democratic messaging about Biden’s age has focused on Trump’s own advanced years and allegations of similar levels of cognitive decline. Despite this, no one making claims about Trump’s alleged mental difficulties has suggested that the documents case against him be dropped, as it was with Biden.
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SubscribeGovt overreach yet again. I think you can argue that the obstruction charges are warranted, but the rest of it is vexatious litigation against a political appointment.
…opponent?
Oops
Weaponizing the justice system was bound to lead us here. It started innocently enough, as people tried to use courts to correct perceived injustices before they had sufficient support to get similar policies passed by democratically elected bodies at the state or federal level. Brown vs. Board of Education, the case that ended legal black/white segregation, was decided in 1955, many years before the Civil Rights act could be passed through Congress. The cause may have been just, but it set the precedent for the judicial activism that has slowly devolved into our present situation. Though lauded as being a correct and just decision by modern standards, it was also arguably the thin end of the wedge that is now firmly placed to hold the door open for all sorts of legal shenanigans whose ultimate goals are political, not legal. Roe vs. Wade was simply the most egregious example of courts bypassing Congress’s constitutionally established lawmaking power, and it’s led to half a century of vitriol and division over the issue which should have been spent debating the issue at the state level, then passing laws that we could all live with and adjusting them as necessary. I believe Roe vs. Wade will one day be regarded as one of the worst judicial rulings in American history or any history. Once one person uses the courts to get their way when they can’t sway the voters, there’s a temptation to do it again, and again, and again. Once it gets moving the avalanche is tough to stop. There’s also the risk that the other side will adopt the same tactics to accomplish their own goals. It’s a tragedy of short term thinking, seeking instant gratification rather than acceping the long slow process of converting voters and politicians one at a time. It’s easy to be angry about some issue and adopt whatever means are necessary to accomplish an immediate goal and forget about the long term consequences, but eventually those consequences catch up. It’s become so obvious now that both sides and the people themselves are beginning to accept this aspect of political warfare as normal. Some things are easy to do but nigh impossible to undo.
Judicial activism is alive and kicking in the UK too. Anthony Blair’s Supreme Court has gathered unto itself legislative powers, usurping the sovereignty of Parliament and undermining the democratic process whereby elected representative are meant make all laws in our name. This process has helped to fuel the scourge of identitarian politics by inverting the law in favour of minority interests – much of it through judicial review decisions that have overturned the will of Parliament.
Not good enough. Yet again a judge makes a decision that breaks with long-standing precedent to establish – not that Trump is innocent or that the evidence is insufficient – but that it is not possible to pursue him. And once again his propagandists claim that ‘if they did not convict the other guy they cannot convict me either‘. Much like a murderer saying ‘if they did not convict O.J.Simpson, they cannot convict me either‘. This has nothing to do with justice, and it certainly has nothing to do with ‘judicial impartiality’.
I think that the judgement does not say that it’s impossible to pursue him. Only that the pursuit has to be done in a way congruent with the constitution (which is by no means impossible).
First of all, this degree of presidential immunity is not in the constitution, any more than abortion or gay marriage is (see Sonya Sotomayor’s dissent). It is something the judges have invented for the occasion. Second, legally pursuing a president may be possible in theory, but the requirements are so high it seems pretty impossible in practice. And finally, we have now seen two cases of Republican judges changing established precedent to protect Trump from having to face a court. If anyone finds a loophole that allows taking Trump to court after all, what are the odds that some MAGA judge will not make sure it is closed?
Presidential Immunity was not the issue and the Justice Dept can refile the charges tomorrow with a current DOJ US Attorney as the lead, or they can appeal to the 11th Circuit of which Judge Cannon is a member. So they can continue the trial but not with him in charge.
Unlike the immunity decision, which is more akin to rubber-stamping existing custom and practice around the role of the president in the US constitution, I’m surprised by the bluntness of the decision that Smith’s appointment was unconstitutional, given the background history of special counsels/prosecutors. I was hoping/expecting more general commentary from people who understand these things more deeply (not the howling sideists). However, other events are drowning out any useful discussion.
I do wonder if the DOJ will appeal, but a second strand has also suggested that the immunity decision around presidential privilege may already have tainted some of the evidence Smith has, making continuing prosecution untenable on other grounds.
Common law systems based on case law allow referencing of similar cases in order to have legal consistency across cases and across time. Selective prosecution is a reason to challenge a case. Justice is supposed to be evenly handled, not used to attack individuals you don’t like. A better example of consistency than OJ Simpson, would be on lawyers querying the use of DNA evidence which then generated rules on sample handling and interpretability.
Amy Coney Barrett’s opinion sounds at least consistent with someone who actually tries to apply the law (instead of just implementing her politics). There is some degree of immunity, and presidents are entitled to have that tested before the case, rather than at the end. But she also said clearly that 1) Trump should not be immune when he gave instructions to state officials (to reverse the election result) because that is not part of his core duties, and 2) that the President’s official acts and their motives should be usable as evidence to establish guilt in other proceedings (such as bribery). The main opinion went with Trump in both instances. In fact their test – that anything even remotely official could only be pursued if the prosecution could prove that this could not in any way be a restraint on the functioning of the presidency – is well nigh impossible to fulfil. As was surely the intention. The only logical explanation is that the freedom of action and efficient exercise of power were so important that not only the law but even the risk of going to court (and likely being found innocent) afterwards would be an unacceptable restraint. That does not sound like ‘existing customs and practice’ to me.
Existing custom and practice is because attempting to use criminal law against a president has not been done before. Prior judgements meant civil action was already ruled out, so the exceptionalism of the case was the use of lawfare (and bad lawfare given the way laws had to be bent to get Trump) to pursue a president out of office using criminal law.
This was a thing that was not done by custom and practice, despite the laundry list of items that could be considered criminal done by previous presidents. Smith forced the SC to take a position on an area that custom and practice had deliberately left untested. The immunity ruling is his comeuppance.
I won’t follow up on the ‘stealing the election’ point. That’s still as moot as it ever has been. Everything flows from whether you think the electoral process was good or not. Obvious flaws left obvious questions that needed to be answered (and that still reverberate).
You being a sensible person, I’d like to argue this one out.
We can certainly agree that what has happened is without precedent, which is why the immunity question came up. The lawsuits are unprecedented, but surely we can also agree that Trump’s behaviour was unprecedented, trying to pressure election monitors, states, the Vice President and Congress to disregard the official election result. We cannot avoid the question: Was Trump’s actions perfectly reasonable, so the exceptionalism was in the ‘lawfare’? Or was Trump’s behaviour at best borderline (I am being nice) so the lawsuits were a reasonable reaction to Trump’s exceptional behaviour? In the interest of clarity, transparency, and good process (I believe you talked about those) one would want the courts to make that call. But the Supreme Court has not only de facto legitimised Trump’s behaviour – it has said that you are not allowed even to ask. Even if Trump’s actions are illegal it is irrelevant because he is allowed to do what he wants without investigation. That is rather amazing. So I would like to ask you: How do we decide whether it is Trump’s actions or the court cases that are unacceptable – so as to satisfy people about the decision – when you are not even allowed to investigate? What argument is there – except ‘We have the power so we do what we want’?
I also cannot figure out your position on the election. Sure, Trump and friends feel very strongly that they could not possibly have lost so there must be fraud. Presumably you will agree that the established procedures were followed, that the various election monitors (Democrat and Republican both) did not find any significant reasons for doubting the result, and that no one has come up with any reliable evidence? That leaves us with the government in power unilaterally deciding that they cannot accept the election result because they feel it has to be wrong, and proceeding to change it. Is that really how you think the system ought to work? Sure, you can get to the point where elections are so worthless that they can no longer be used to decide who should govern. Do you think that we are already there, though? And if we are, do you accept that the US is no longer a democracy, since you cannot rely on elections to change the government?
The US separation of powers makes presidential powers subject to constitutional review by the courts, and it leaves the person of the president subject to oversight from Congress, and of course, a four year election cycle. It’s how the division of powers was set up. The president is given exceptional powers as leader of the country to lead the county as he/she judges and to make difficult decisions. US law creates a number of privileged situations where the law cannot tread – eg attorney-client privilege and executive privilege – both of which have been breached by the lawfare cases. The Supreme Court has decided it cannot step into that long-established arrangement of presidential immunity for official acts, and judicial entry into executive decision making is not allowed.
However, American citizens also have rights and courts can prevent presidential orders from overstepping into the rights of citizens. The courts throw out executive orders all the time, and they allow citizens to sue the executive when rights are impaired. There is no carte blanche, as has been portrayed by the talking points of those anti the Supreme Court. (A Supreme Court that itself threw out a big election challenge). In many ways this Supreme Court is reverting to older constitutional norms of the separation of powers, determining that the blurring of lines of who sets the law and who runs the country from the last decades through judicial activism should be resisted – a particular view of the law needing to be set by Congress, not judges.
On the election I think no-one has found hard evidence but, unfortunately, the way the election was run it left a lot of suspicious fumes – the big swings in results as counts switched from in-person to mail-in, video images that looked suspicious, the time taken to count, the use of drop-boxes and votes with unverified signatures. A good election would have been completely transparent and answered all data queries from the losers. Instead the Republicans ended up going to court (a lot) to try to get access to data or to present what they thought was evidence – and they had issues about the elections before, during and after and still now – it’s more than loser’s regret. Remember underhand actions only needed to be the key swing states – not everywhere. The lack of transparency creates doubts, and the timeframes were short. For me, it’s obvious they were going to and did ask questions, and I don’t see that you can pursue them legally for that – even if they were later found to be wrong and the suspicions unfounded.
The background also doesn’t help – when state actors in the 51 officials suppressed the Hunter laptop story, or all the media hoaxes about Trump, and the previous Russian Collusion hoax run by the Democrats to undermine the presidency. Something very dirty has happened to US politics and that drives down trust (you may blame Republicans for starting it with Clinton and I wouldn’t disagree, but it’s much much worse now).
Consequently, the election left a bad smell and think it’s only fair that the losing party asks to have those smells checked out – the stated point of J6 was to get a delay and review, not an overthrow (no-one had weapons, ‘insurrection’ is another media talking point nonsense – see how they destroy trust). Instead we get these continual rounds of lawfare where the job is to find something, anything, to pin on your opponents while protecting your own. Dirty. Bad. Unjust.
In the end, the US simply needs better elections. Everywhere else in the world votes on paper, with ID and counts the votes in a night by hand. It’s not exactly hard.
OK, we are not going to agree. We are each going to go to hell in our own way, only unfortunate (from my point of view) that we, too, will suffer when you screw up.
I can agree that the US needs better elections. I cannot see a way of getting them, though. Who would make deals and compromises to improve the system when the rules are not binding on the losers anyway? We already know that the Republicans will disregard the rules any time they might lose, the Supreme Court will back them up, and the Democrats will disregard the whole thing as a partisan charade. Good luck with your partisan politics. We are all going to need it.
You’re unable to see that this is not a partisan position. It’s about justice, fairness and equality – old fashioned Democrat ideals at that. I really wish the Democrats would return to their old principles that supported these positions, and things like free speech, but they continue on a totalitarian road to ‘get’ or stop the opposition by any means possible even if it means constantly making up smears and misusing the law.
Funny, I would say exactly the same thing about Republicans. And the latest legal shenanigans can only convince the Democrats that they have no need for restraint. Certainly no one who is not a Trump voter can see either Trump or the Supreme court as being non-partisan or working for working for ‘justice, fairness and equality’. It is too bad, you sound like a reasonably sensible person, but we do not live on the same planet. We have no principles in common. We have completely different ideas about facts, evidence and reality. I do not know what to hope for – I would like to see a functional, agreed political system in the US, but I never will. All I can say that when? If? the Democrats really do succeed on their totalitarian road, they will have every justification. It is what you wanted, and what you have worked for. It is just a question of which side is going to win, now.
I don’t expect any principles from Republicans – they’re mostly in it for what they can get, especially the neo-cons who seem to delight in feathering their own nest. I am not pro-Republican or pro-right by any means.
But the Democrat core has become much much dirtier and nastier than I have ever seen – and by that I don’t mean the average Democrat voter who is mostly shares the same principle of fairness, justice and equality as I do – but the politburo party apparatchiks and money men that play behind the scenes.
Unfortunately the average Democrat has proven easy to lead simply by controlling the information they see and telling them not to look outside an approved canon – trust ‘the experts’ to tell you what to think.
In contrast, the average Republican has proven more free-minded and skeptical of institutional claims – part of wanting less government, not a big controlling state.
The solution will be transparency. Neither governments, nor elections, should be able to hide stuff (and before you say anything, Congress should be digging to make the president and executive transparent). Lay it all out and let the chips fall where they will. I think Trump, should he get in, will open it all up and make transparency and declassification his vengence on the deep state.
You are a Trump voter. Enough said. For all practical purposes that makes you pro-Republican and pro-right.
Nope. Not a Trump voter. Your labels aren’t working.
You mean you are voting for Biden? Really?
You appear to equate your policy preferences with right action. Will you even concede that Adam Schiff continuously lied during the Trump administration and was rewarded by the party for his ability to generate column inches?
I’ve never heard about Adam Schiff. But politicians who lie to generate column inches sounds pretty normal – on both sides.
So you have big problem with Trump.
Do you have a big problem with Biden speaking about court case of police officer restraining career criminal, announcing which verdict is just?
What about Biden and Democrats applauding BLM riots, burning of buildings and attacks on government and state officials?
Both much worse than any actions of Trump.
On BLM I agree with you. I am against abortion. I am against alll kinds of wokery. I strongly disagree with the US supreme court on flooding politics with corporate money (Citizens United), allowing unrestricted individual right to have guns, making it legal to accept bribes after the fact, or gutting the power of the administrative state to enforce it’s regulations. But OK, it is not my country, and even if the Supreme Court ought not to do politics those are legitimate political decisions.
Some things are totally unacceptable, though. Inventing ‘voting fraud’ out of thin air as a tactic to fire up your base. Trying to delegitimise elections and overturn the election result. Making the President immune to the law. And putting someone in power who does not know what he is doing but acts on gut instinct, who does not consider the consequences of his actions, who is capable of taking major political decisions just to stroke his petty ego, and who cares nothing about anything but himself and how big a man he is. And here Trump is unique. Uniquely dangerous. If you wanted Richard Nixon back I would wonder why you wanted your country and yourself to be represented by a slimy crook, but I would accept you had a point. Nixon was a very capable man and he knew what he was doing. Nixon was not going to be buddy-buddy with he-man dictators, or to start a nuclear war because someone had insulted his dignity and he could not be bothered to think through the consequences. With Trump there are no such guarantees.
Actually RF, it was the Garland appointments which broke precedent, the precedent being compliance with the specific regime in the constitution for the appointment of federal offices and officers.
From the UK it seems more than strange that judges can be politically appointed and also be designated either R or D. That means that there can never be judicial action of any sort taken against any politician, or anyone connected in any way with a politician, without cries of foul, whatever the merits or otherwise of the case. Is there any possible defence of this system?
The only other option is electing judges. I’m not sure that’s any better, and it may be worse. This never used to be an issue when politics were not so hyper polarized.
That’s not the only other option! I’m not exactly sure of the process, but in the UK neither political option is used; the judicial system really is independent, so there are no political appointments except for the two at the top, the Attorney General and the Solicitor General, and they don’t appoint judges. It can mean that the judiciary get somewhat sclerotic, but they do not bend to the whims and prejudices of the political class.
Really?
Maybe you should read Lord Sumption views on judicial activism.
Do you remember that women taking government to court because she did not like Brexit referendum result.
Most of the British elites including judges are of the Left fully subscribed to Remain, multiculti and other progressive idiocies.
It is better than USA but nothing like you described.
My partner is a lawyer and situation is more complex than you claim.
Judges are politically appointed in the UK Tony Blair saw to that. Compare the judicial action in relation to Brexit and Rwanda compared to Covid
Actually the very opposite – since 2006 (ie during the PMship of TB) UK judges have been appointed by an independent commission. Before that it was the Lord Chancellor, but he very rarely deviated from the recommendations of the judiciary. Just because you didn’t like the decisions on Brexit and Rwanda, which are and were overwhelmingly regarded as legally correct, it does not mean that they were wrong. herewith the details: https://www.judiciary.uk/about-the-judiciary/our-justice-system/jud-acc-ind/jud-appts/ . Also British judges are not given a label determining their electoral preferences!
The commission is not independent when you appoint the people on the commission and you ensure that any replacements are chosen from the same vetted pool. When the appointments were made by the Lord Chancellor the selection did take into account soundings taken from the senior judiciary but the Lord Chancellor’s department used to take soundings about potential candidates for years and at least it kept the judiciary out of the hands of political appointees.
I did not actually say that the courts were wrong about Brexit and Rwanda, but in my view they were and dispute that they were overwhelmingly regarded as legally correct. Rather my point was the courts were quick to jump in to thwart Brexit and Rwanda but were nowhere to be seen when it came to the Covid lockdowns
Would a Democrat ever give a Republican a fair trial? This is the question that must be asked and answered. I think we all suspect that we already know the answer …….
Try switching that around – political interference and/or control of judicial appointments is a disaster. Presumably another throwback to a system set up 250 years ago which no doubt was appropriate then but ain’t now.
Funny enough this ruling might help out Hunter Biden considering the special council appointment in his case was very similar.
I don’t know about the legal authority aspects of the case but perceived judicial partiality and selective prosecutions will destroy the trust people have in the US justice system.