“Once you have the courts you can pretty much do whatever you want.”

Commentary

Is the Trump-appointed federal district judge’s ruling calling for a “special master” while simultaneously directing the Department of Justice to stop any further investigation of Trump’s absconding with classified documents “proof of the [offal] pudding?

(Note: Around the Block’s coverage of my Baltic cruise followed by an incredible stay in Krakow, Poland will continue later this week.)

The headlined quote comes philosopher Jason Stanley of Yale University, best known for his 2018 book “How Fascism Works.” It was one of many statements of outrage Heather Cox Richardson quoted in her newsletter today, Letters from an American.

As Cox Richardson pointed out, “Legal analysts appear to be appalled by the poor quality of the opinion.”

• Former U.S. acting solicitor general Neal Katyal called it “so bad it’s hard to know where to begin.”
• Law professor Stephen Vladeck told Charlie Savage of the New York Times that it was “an unprecedented intervention…into the middle of an ongoing federal criminal and national security investigation.”
• Paul Rosenzweig, a prosecutor in the independent counsel investigation of Bill Clinton, told Savage it was “a genuinely unprecedented decision” and said stopping the criminal investigation was “simply untenable.”
• Duke University law professor Samuel Buell added: “To any lawyer with serious federal criminal court experience…, this ruling is laughably bad…. Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he’s being persecuted, when he is being privileged.” 

Going on, Cox Richardson notes, “Energy and politics reporter David Roberts of Volts pointed out that this is a common pattern for MAGA Republicans. First, they spread lies and conspiracy theories, then they act based on the ‘appearance’ that something is shady. So this… judge says Trump deserves extraordinary, unprecedented latitude because of the ‘extraordinary circumstances’ and the ‘swirling questions about bias.’ But her fellow reactionaries were the only ones raising questions of bias! It’s a perfectly sealed feedback loop, and one the right wing has perfected over voter fraud.” 

Cox Richardson goes on to assert, “As Republican policies grew less popular, party leaders focused not on adjusting their policies, but on filling judgeships with judges who would rule in their favor in lawsuits. This focus was so strong by the time of Trump’s predecessor, President Barack Obama, that then–Senate majority leader Mitch McConnell (R-KY) stalled confirmations for Obama’s nominees, banking on leaving vacancies for a new president to fill. Most dramatically, of course, he refused to permit a hearing for Obama’s nominee for a Supreme Court seat in March 2016, inventing a new rule that that date was too close to the upcoming November election to allow the nomination to proceed. (A rule McConnell completely disregarded when it came to the seat now occupied by Amy Coney Barrett.)

“This left the seat free for Trump to appoint Neil Gorsuch, who could not make it through the Senate until McConnell used the so-called “nuclear option” to get rid of the filibuster for Supreme Court appointments, which enabled him to squeak through with just 51 votes.”

Lest we forget, the judge in the Trump case, Aileen M. Cannon, a member of the Federalist Society, was confirmed by the Senate on November 13, 2020 after Trump had lost the election. In her ruling she stepped between the Department of Justice and the former president in the investigation of classified documents stolen from the government. Before she ruled, even conservative lawyers were critical of Trump’s position.

Orin Kerr, a conservative law professor at UC Berkeley noted that many actual lawyers were “giggling at Trump’s motion, and how poorly it was done.” Former Attorney General William Barr, a former Trump ally, was asked for his opinion about the argument for a special master. “I think it’s a crock of s—,” he said, adding, “I don’t think a special master is called for.”

Beyond the opinions quoted in Cox Richardson’s letter, other experts chimed in on Cannon’s ruling. Peter Shane, a legal scholar at NYU and a specialist in separation of powers, told The New York Times yesterday, “The opinion seems oblivious to the nature of executive privilege.”

Stephen Vladeck, a law professor at University of Texas, called the outcome “preposterous,” adding that yesterday was “a sad day“ for the judiciary. And Andrew Weissman, a longtime Justice Department veteran described the ruling as “lawless“ and “nutty.”

And although former acting solicitor general Neal Katyal initially didn’t know where to begin, he ultimately found a way, going on to describe Cannon’s legal analysis as “terrible” and “awful,” before concluding, “Frankly, any of my first year law students would have written a better opinion.”

Is Judge Cannon a living breathing example of “Once you have the courts you can pretty much do whatever you want?”

Or as Florida’s senior U.S. Senator Marco Rubio, who Trump once denigrated as “Little Marco,” said, implying this is a lot to do about nothing, “This is just a storage issue.”