Judge Cannon’s latest ruling proves the judiciary has become MAGAfied

On Monday, in an opinion that was shocking both for its reasoning and its timing, Judge Aileen Cannon dismissed the Mar-a-Lago classified documents prosecution against former President Donald Trump. She declared that Jack Smith’s appointment as special counsel is unlawful under the Appointments Clause of the Constitution. Even given Cannon’s clear bias and reckless handling of the case from the outset, this development is jaw-dropping. In the wake of the Supreme Court’s anything-goes majority opinion on presidential immunity, we are witnessing the “MAGAfication” of the judiciary, joining Donald Trump in the march toward lawlessness. It should be met with repudiation by voters come November.

Fittingly, Cannon has bookended her handling of this matter with the worst decisions we have seen a district court judge make in our collective half-century-plus of legal practice. In both instances, she bent over backward to help Trump avoid accountability. 

Back in 2022, before Trump was indicted, Cannon attempted to interfere with the government’s ongoing investigation by appointing a special master to review documents seized from Mar-a-Lago under a search warrant. That move was completely baseless — and the conservative 11th Circuit swiftly ordered an end to her unprecedented intervention into a criminal investigation. 

Now Cannon has again deviated from the law to dismiss the case entirely. Embracing a theory that has never been adopted by any court, Cannon found that Smith’s appointment was not authorized by Congress and so violated the Appointments Clause of the Constitution. She went on to hold that the appropriation of funds to the special counsel was similarly inappropriate. 

That interpretation ignores both Supreme Court precedent and the plain text of the statutes that authorize the appointment of the special counsel. In 1974, the Supreme Court upheld the Watergate special prosecutor’s subpoena of President Richard Nixon’s Oval Office tapes. In reaching that conclusion, the court explained that Congress had “the power to appoint subordinate officers to assist [the attorney general] in the discharge of his duties,” including the special prosecutor, through precisely the same statutes that authorize Smith’s appointment. Every other court that has ruled on the issue in the 50 years since then has agreed. Just five years ago, the D.C. Circuit Court of Appeals cited the Nixon case in unanimously upholding the appointment of special counsel Robert Mueller.

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‘Almost unprecedented’: Judge drops Trump’s classified docs case July 15, 2024 / 07:47

But Cannon discarded that unbroken line of precedent. Instead, she concluded that a statute that says “the Attorney General may appoint officials to detect and prosecute crimes against the United States” does not authorize the attorney general to appoint a special counsel to detect and prosecute crimes against the United States. This is not a conservative, textualist legal decision grounded in a careful reading of the statute. It is shameless judicial activism with no other basis than to immunize Trump from accountability.

So what does Smith do now? Already, the special counsel’s office has announced he will promptly appeal Cannon’s ruling to the 11th Circuit. That court has reversed Cannon before when she dramatically departed from precedent, and another prompt reversal is warranted here. But regardless, the appeal will most likely end up at the Supreme Court. 

Smith can also go one step further and seek Cannon’s removal from the case entirely. That rarely happens, and the Justice Department seldom reaches for such an extraordinary intervention. But we think the extraordinary circumstances of this case warrant it. 

Under 11th Circuit precedent, “[r]eassignment is appropriate where the trial judge has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.” Even when the trial court judge has not shown “actual bias,” as the 11th Circuit termed it, the judge can still be removed from a case when “the original judge would have difficulty putting his previous views and findings aside” or if “reassignment is appropriate to preserve the appearance of justice.” 

As we have previously argued, Cannon’s handling of the case betrayed bias sufficient to support removal even before Monday’s decision. After this ruling, Smith should seek a reassignment in the interests of justice. All of this could happen fairly quickly. The 11th Circuit acted briskly when Cannon overstepped last time, and we could see action within a matter of weeks. That suggests that this could all come to a head during the election season — as if we needed one more destabilizing turn of events on this political roller coaster.

Looming over all of this, though, is the devastation the conservative members of the Supreme Court have unleashed. The high court has now shifted the Overton window of lawless judging with its recent immunity ruling. The conservative justices set the bad example that Cannon has now followed.

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What might the Supreme Court do if the government’s appeal of Cannon’s disastrous opinion reaches its steps? Even now, it is hard to believe that a majority of the court would embrace Cannon’s unprincipled, atextualist conclusion. But at least one justice would. In the court’s immunity decision, Justice Clarence Thomas issued a concurring opinion — joined by no other justice — questioning the constitutionality of the special counsel position. The issue was not before the court, and none of the parties had even briefed it. Yet, in an all-too-predictable act of judicial brazenness, Thomas opined anyway. 

Cannon cited Thomas’ solo concurrence as if it were law while disregarding the Supreme Court’s long-standing precedent as if it were purely optional. It is hard to imagine a clearer encapsulation of MAGA judicial philosophy: The law as they find it is irrelevant; all that matters is what Trump’s hand-picked justices decide they want the law to be.

Maybe that would be a bridge too far, even for this court. The court’s precedent and the statute’s text are crystal clear. So it is possible that the Supreme Court will slap Cannon’s ruling down — as it has done with other rogue conservative district court judges this term who far exceeded their parameters.

But the Supreme Court has become unmoored. Beyond defying the text and spirit of the Constitution in their immunity ruling, it has also thrown out the foundational legal principle of stare decisis, in which courts adhere to precedent. It has overruled long-settled law on everything from the role of administrative agencies to abortion.

We must view Cannon’s latest entry in the continuing partisan politicization of our courts together with all of the destabilizing events of the past four years. That starts with the attempt to overthrow the results of the 2020 election, the tragedy of Jan. 6 and Trump and his allies’ authoritarian threats, which we catalog in our American Autocracy Threat Tracker. And it includes the violence targeting political figures including Trump, Michigan Gov. Gretchen Whitmer and Nancy Pelosi’s husband, Paul Pelosi,

We are now facing the most serious internal challenge to the American experiment since the Jim Crow era, or perhaps the Civil War. (That crisis is the subject of a major cross-partisan summit that we are hosting next week at NYU.) Cannon’s decision and its naked unlawfulness need to be located in that context. The court’s immunity ruling was a form of election interference, slow-rolling the case to make a trial in 2024 impossible. But the content and the timing of Cannon’s decision here are perhaps even more blatant. Dropping this opinion on the morning the Republican convention begins is a political gift to the man who nominated her and an unmistakable signal of her bias. Whatever this is, it is not judging as we have known it.