Flawed special master ruling shows that when you have the courts, you can get away with anything
Lawyerly takedowns of Judge Cannon's opinion overlook that for Trumpers, the law is whatever Trump says it is.
“Frankly, any of my first year law students would have written a better opinion,” former acting solicitor general Neal Katyal wrote Monday in an exasperated Twitter smackdown of District Judge Aileen Cannon. Cannon is the Trump-appointed judge in the Southern District of Florida who threw sand in the DOJ’s criminal investigation of Trump by ruling that an independent master should be appointed to review documents seized by the FBI at Mar-a-Lago in order to determine whether they are covered by executive privilege.
Katyal is no doubt correct. But that’s not because his first-year students are smarter than Cannon (though they may be). It’s because his first-year students are (hopefully) not engaged in a deliberate fascist takeover of the United States.
Like Katyal, many prominent lawyers were horrified by the decision, which defies both legal precedent and straightforward rules of logic.
Even Trump’s former loyal attorney general Bill Barr went on Fox News on Tuesday to argue that Cannon’s ruling is “wrong” and should be appealed.
There are a number of obvious flaws in Cannon’s reasoning. To start with, Trump is not president, so executive privilege does not apply to him, and the actual president, Joe Biden, has rejected Trump’s claims. Second, federal agents have already reviewed the files, so blocking the Justice Department from using them is “a genuinely unprecedented decision,” according to Paul Rosenzweig, an attorney who was senior counsel for the Office of the Independent Counsel that investigated Bill Clinton.
Attorneys such as Katyal by their nature tend to focus on lawyerly professional standards. Legal scholar Laurence Tribe, for example, said that “Cannon’s order will go down as part of the judicial anticannon” — decisions like Dred Scott that professors use to teach “how NOT to wield the judicial power.”
This kind of pushback is important, not least because it can drive media coverage. It may (may!) even lead some Trumpist GOP judges to moderate decisions for fear of professional ridicule, as political scientist Jonathan Bernstein points out.
However, the focus on good lawyering and technical competence can also be a distraction from the real dangers, and real evil, of the current far right assault on the judiciary. As liberal lawyer Max Kennerly put it on Twitter, “law is fake, it's all just Trumpism now.”
Cannon’s shoddy ruling is straight from the fascist playbook
The special master ruling wasn’t born of incompetence, just as Neil Gorsuch didn’t misstate the facts of the case in Bremerton out of incompetence. Conservative judges are ideologically committed to using the bench to reshape society, and Cannon, who’s been a federalist society member since 2005, is no exception. They fail to meet professional standards because they have contempt for those standards. They do not think their movement should be constrained by law.
Cannon’s ruling is obviously deferential to Trump in particular. That makes it look corrupt, hackish, and confused rather than ideological. But when you’re talking about fascism — or as Joe Biden characterizes it, “semi-fascism” — personal deference is ideological.
Trump has argued that the documents at Mar-A-Lago were not sensitive because as president he had the absolute authority to declassify them, even if he told no one he had done so. This “magic wand” defense sounds ridiculous. But it also sounds fascist.
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Hitler’s central theory of law was called the Führerprinzip, or leadership principle. Basically it meant that the leader’s word was above the law. The leader shaped the law; the law did not bind the leader, who “was not subject to any constitutional checks and balances,” per historian David Welch.
The leader’s power in fascism is (like Trump’s mental declassification) virtually mystical. It does not arise from written law or from established institutions. Rather, it comes from the leader’s spiritual connection to the masses.
“The purpose of the law in the eyes of the Nazis was not to apply long-held principles of fairness and justice,” historian Richard Evans explains, “but to root out the enemies of the state and to express the true racial feeling of the people.”
From this perspective, Cannon’s decision is not a failure of reasoning. It’s simply the application of an alternate set of legal principles. Or, as composer Frank Wilhoit put it, “Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”
The issue here is not really whether Trump has executive privilege. Or rather, Cannon is operating under the assumption that Trump, as leader of the in-group whom the law protects but does not bind, has sweeping privileges which she is grouping under “executive privilege” for lack of other legal language.
This is only illogical if you think that Trump’s power as president came from the law. If you are operating under Führerprinzip, or something like it, then Trump’s power comes from embodying the spirit of MAGA, and always puts him above the law.
Deference to Trump, then, is deference to the movement which Trump embodies, just as embracing the movement means embracing Trump. Trump even said as much during his first post-FBI search rally Saturday in Pennsylvania.
“It was not just my home that was raided last month. It was the hopes and dreams of every citizen who I’ve been fighting for since the moment I came down the golden escalator in 2015,” he claimed, shortly after describing his MAGA movement as “the greatest in the history of our country — and maybe in the history of the world.”
This is the actual legal reasoning behind Trump’s refusal to accept the 2020 election results. From the traditional empirical and legal standards, there was no election fraud, and Biden’s victory was valid. But if you hold to Führerprinzip, as Trump does, then any vote cast against the leader is by nature illegitimate and illegal. The law is there to crush those who defy the leader. Trump, from the view of Trumpism, isn’t lying when he says he was the winner. Or his lying is justified because is serves a greater truth. Either way, Trump remains president no matter the law, because the true purpose of the law is to validate his presidency.
The conservative legal movement that Trump advanced has been moving more and more towards Führerprinzip and the law of MAGA. The Supreme Court has mostly abandoned any pretense of ruling by precedent, truth, or reason, and has signaled its willingness to abandon voting altogether and simply allow Republican legislatures to choose the next president (presumably, Trump).
The courts will not save us — especially after Trump stuffed them with MAGAs
Cannon’s ruling would be overturned instantly by any court that believes in the rule of law. But the government would have to appeal to the 11th Circuit of Atlanta, which has a Trumpist majority. And ultimately it would be up to the conservative supermajority at SCOTUS. They have ruled against Trump before. So anything’s possible. But as Vox correspondent Ian Millhiser said, “I miss having the most minimal amount of faith that members of the judicial branch would act in accordance with the law.”
Biden and the Democrats do in general seem to understand the seriousness of the January 6 coup attempt, and the dangers that violent insurrection and election denial pose to democracy. They’ve been distressingly slow, though, to understand the threat posed by a rogue judiciary that seeks to make the law a tool of white Christofascism. Biden refuses to support expanding the Supreme Court, and Democrats don’t talk much about the fact that a 6-3 conservative majority could strike down basically any and all progressive gains, certainly including national abortion protections.
Cannon’s ruling that Trump retains executive power isn’t (just) confused and poorly reasoned. It’s a warning that she, and her movement, believe they retain rightful power regardless of elections or laws. Katyal and other lawyers see the ruling as a contemptible failure of legal reasoning. They’re not wrong. But it’s also a chilling assertion of power.
That’s it for today
Aaron will be back with more Friday.