On Monday, U.S. District Judge Aileen M. Cannon struck a forceful blow for the right of judges to do whatever they want — and a blow against the rule of law.
Just as the Republican National Convention was about to convene in Milwaukee, Cannon, in a 93-page decision, tossed out the classified documents case against former president Donald Trump, who faced 40 counts of illegally retaining classified defense information and obstructing government efforts to retrieve the material. According to the indictment, Trump took sensitive classified documents from the White House, left them strewn around his Mar-A-Lago estate, lied about returning them to the National Archives, and let people who did not have the proper security clearance have a peek at them.
Just hours after Cannon’s ruling, Trump was set to be nominated as the 2024 Republican presidential nominee.
It would not be too much to call Cannon’s opinion absolutely shocking. Her ruling in favor of Trump is certain to further tear at the badly-frayed political fabric of our starkly divided nation. It comes at a time when Americans were already reeling from the shocking assassination attempt on the former president Saturday, and fearful about the threat of possibly more political violence in the days and months to come, at the RNC, at next month’s Democratic National Convention here in Chicago and during the ramped-up campaign.
Cannon, who was appointed by Trump, did not rule on the merits of the case. Rather, she took issue with the fact that Special Counsel Jack Smith, who indicted Trump, was appointed by Attorney General Merrick Garland. Cannon claimed the law providing for special counsels — which has been upheld by other judges — is unconstitutional because Smith was not elected and not approved by the U.S. Senate and his appointment was not based on a specific federal statute.
Under Cannon’s line of reasoning, the investigation led by Special Counsel Robert Mueller into Russian interference in the 2016 presidential election would also be null and void.
The ruling upends 25 years of law, a time during which both Republican and Democratic administrations have appointed special counsels to investigate matters such as Whitewater during the Bill Clinton administration and the Iran-Contra scandal during the Ronald Reagan administration. When the legality of special counsels has been questioned in other courtrooms, both Democratic- and Republican-appointed judges have rejected that argument. Cannon cited no previous rulings to support her decision or to show that she was merely interpreting the law, not showing favor toward Trump.
The only support for the ruling comes from U.S. Supreme Court Justice Clarence Thomas, who said, in a concurring opinion in the Court’s decision supporting broad immunity for presidents from criminal prosecution, that the constitutionality of the special counsel law should be revisited.
Cannon used one justice’s idea as an opening to overturn what many legal experts regarded as settled law.
Cannon does a disservice to the public
In the end, Cannon’s decision might not have much impact on the case, other than to delay it and to ensure Trump has a chance, should he be re-elected president, to order his Justice Department to drop all charges. Unlike some of Cannon’s other rulings, it can be appealed immediately, and many legal observers expect Cannon’s decision to be eventually overturned by the 11th U.S. Circuit Court of Appeals, which has overturned Cannon previously in the documents case.
Late Monday, the Justice Department confirmed it would appeal the ruling, which a spokesperson said in a statement “deviates from the uniform conclusion of all previous courts” that have considered the legality of special counsels.
Cannon’s decision comes as the attempted assassination of Trump at a Pennsylvania rally continues to dominate the news cycle, with questions raised about the failure of security at the event and the proliferation of military-style weapons in the hands of civilians who are a danger to others.
A small but frightening percentage of Americans said in a recent poll by the Chicago Project on Security & Threats at the University of Chicago that the use of force is justified to either keep Trump from regaining the presidency, or to restore him to the office. The percentages are small, but they represent millions of Americans, on both the left and the right, who pose a very real threat to this country’s stability.
Cannon’s ruling, which will delay the documents trial even longer, is of enormous significance at such a fraught time. She has denied the public its right to examine evidence, revealed in a court of law, to show whether Trump endangered our national security, including nuclear secrets, when he left office.
In a fully functioning democracy, voters would get complete information before they cast their ballot. Cannon is denying voters that right.
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