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.
Written by Noah, so strong. I agree with it.
"[the SCOTUS] has signaled its willingness to abandon voting altogether and simply allow Republican legislatures to choose the next president (presumably, Trump)."
That we have yet to see. I agree about the fears expressed, losing faith and the overarching outrage, hard to subdue.
This is a battle and it has to be engaged. We heard lawyers on N.Wallace MSNBC last night- a nice selection including Katyal. The woman lawyer ( forget her name) laid out the dilemma. This is maybe a game of chess ( though not a "game" at all).. the pros and cons of the DOJ challenging this ruling and the delay involved versus alternative paths. So many legal minds agree with this take, including the puzzling but useful (of late) Barr. The law must be used. If we cannot deal with this threat by democratic means, the tools of democracy, then maybe it is time for revolt and boiling over. We are the majority..not to forget. The enemy is also complacency. Keep on.
Thank you.
As I travel around Minnesota and see people proudly wearing their Jensen for governor shirts at the state fair or posting Jensen signs in their yards (Iron Range) and desperately trying to convince their fellow Minnesotans “Walz failed” by imposing mask mandates, vaccine mandates over two years ago, it occurs to me that these people are living in an alternate universe that has no connection to current, actual reality, that they’re addicted to their anger and resentment, that their anger and resentment is the only thing that gets them out of bed in the morning, that they need their fix of Trump induced anger and resentment and belief that their lives could have turned out so differently if only Trump had been president forever. Of course there are elements of Christian-nationalism and fascism in this group but my contention is that the majority of MAGAs understand that something has gone terribly wrong in America over the last 50 years. They’re not wrong. Think about all the aspects of American life that are broken and weren’t fixed but simply tinkered with, starting with out health care system; student loans; banking system; housing; federal minimum wage; abortion laws superseding medical professional training; court system; justice system; prison systems; electoral college; voting restrictions. This is not an exhaustive list but it’s a start and shows that America has been resting on its laurels for the last 40 years while we were convinced by mostly Republicans that either we could not afford to fix things or that fixing things would hurt the right kind of person and help the wrong type of person. That’s been the foundational philosophy of politics and government for the last 40 years. I wouldn’t call it fascism, I’d call it simply neglect. MAGAs feel neglected and ignored. Trump exploits them by creating an alternate reality for them to exist in. When MAGAs’ actual reality becomes more satisfying that Trump’s alternate reality, will they be able to give up their addiction?