U.S. District Judge Aileen Cannon has been accused of entertaining Donald Trump’s every legal defense, no matter how absurd, bogging down the classified documents case she’s had for a year with motions and hearings that would never happen in another court.
Since being randomly assigned the case last June, Cannon has dutifully considered the former president’s every legal argument with the utmost seriousness, repeatedly delaying the case — by far the most serious she’s ever presided over — and recently scrapping the scheduled trial date, citing all the motions she’s allowed to pile up without ruling on, with no sign that she’s anywhere close to setting another.
Instead of tossing the claim aside, as another judge might, Cannon has treated as legitimate the argument that Trump, using only the power of his mind, could unilaterally declassify the nation’s secrets, including battle plans and information on nuclear weapons programs (Trump himself, in a recording obtained by prosecutors, denied he had that power). And she’s treated the defense and prosecution “very differently,” The New York Times reported, chastising the latter for actions that she’s allowed from the former, such as making legal arguments in court that were not first submitted in written form.
But Cannon, even in the eyes of her many critics, has outdone herself with a ruling made public late Tuesday. Now it’s not only Trump’s lawyers who will be arguing on Trump’s behalf: she’s scheduled a hearing where right-wing attorneys will make the argument that it’s actually the Biden administration that broke the law. Set for June 21, the lawyers will argue that it was illegal for the Department of Justice to appoint special counsel Jack Smith to handle Trump’s alleged theft of the nation’s secrets.
It is one thing for a judge to accept an amicus brief, wherein an outside party submits legal arguments relevant to the case, and another to spend time on oral arguments from lawyers who don’t even represent either side.
“The issue is Judge Cannon seems to be just entirely unable — or unwilling — to be normal,” commented Anthony Michael Kreis, a professor of constitutional law at Georgia State University. “She’s not up to the job as far as I’m concerned,” he continued, noting that he’s never seen a district court judge schedule such a hearing for arguments from lawyers not even involved in the case. Cannon, Kreis concluded, “is an absolute hack.”
It’s not like the arguments are novel, either. All the way back in 2018, then-President Trump was raging against special counsel Robert Mueller, who was investigating his campaign’s ties to Russia, declaring that his appointment “is totally UNCONSTITUTIONAL!” At the time, David Sklansky, a professor of criminal law at Stanford University, noted that the U.S. Supreme Court in a 1988 decision ruled that the executive branch does indeed have the right to allocate its powers to an independent counsel, making it not even “remotely plausible” to argue such an appointment violates the Constitution.
It’s also an argument that’s been tried in court multiple times before, all of them unsuccessfully. Paul Manafort, Trump’s 2016 campaign chairman, tried it in his case, CNN noted, and Hunter Biden gave it a shot too.
But it’s one that conservatives are insisting on making, at least with respect to Trump and Smith. “Improperly appointed,” states the amicus brief from Ed Meese, attorney general under President Ronald Reagan and part of the group that will argue in Cannon’s courtroom, “he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
At a congressional hearing Tuesday, Attorney General Merrick Garland — confronted by Republican lawmakers making the same claims — noted that his office’s ability to appoint special counsels had been in effect for decades now. “The matter that you’re talking about,” he told Rep. Thomas Massie, R-Ky., “has been adjudicated.”
It’s one thing for the arguments to be made in Congress, according to legal experts, and another for them to be treated seriously in a district court.
“The fact these motions are even being entertained with a hearing is itself ridiculous. That third parties are being allowed to opine at the hearing is absurd,” national security lawyer Bradley Moss told CNN.
“Not normal all,” added CNN legal analyst Elliot Williams. “There is literally no reason why the judge needs to have additional folks come in at the oral argument.”
Truthout Is Preparing to Meet Trump’s Agenda With Resistance at Every Turn
Dear Truthout Community,
If you feel rage, despondency, confusion and deep fear today, you are not alone. We’re feeling it too. We are heartsick. Facing down Trump’s fascist agenda, we are desperately worried about the most vulnerable people among us, including our loved ones and everyone in the Truthout community, and our minds are racing a million miles a minute to try to map out all that needs to be done.
We must give ourselves space to grieve and feel our fear, feel our rage, and keep in the forefront of our mind the stark truth that millions of real human lives are on the line. And simultaneously, we’ve got to get to work, take stock of our resources, and prepare to throw ourselves full force into the movement.
Journalism is a linchpin of that movement. Even as we are reeling, we’re summoning up all the energy we can to face down what’s coming, because we know that one of the sharpest weapons against fascism is publishing the truth.
There are many terrifying planks to the Trump agenda, and we plan to devote ourselves to reporting thoroughly on each one and, crucially, covering the movements resisting them. We also recognize that Trump is a dire threat to journalism itself, and that we must take this seriously from the outset.
Last week, the four of us sat down to have some hard but necessary conversations about Truthout under a Trump presidency. How would we defend our publication from an avalanche of far right lawsuits that seek to bankrupt us? How would we keep our reporters safe if they need to cover outbreaks of political violence, or if they are targeted by authorities? How will we urgently produce the practical analysis, tools and movement coverage that you need right now — breaking through our normal routines to meet a terrifying moment in ways that best serve you?
It will be a tough, scary four years to produce social justice-driven journalism. We need to deliver news, strategy, liberatory ideas, tools and movement-sparking solutions with a force that we never have had to before. And at the same time, we desperately need to protect our ability to do so.
We know this is such a painful moment and donations may understandably be the last thing on your mind. But we must ask for your support, which is needed in a new and urgent way.
We promise we will kick into an even higher gear to give you truthful news that cuts against the disinformation and vitriol and hate and violence. We promise to publish analyses that will serve the needs of the movements we all rely on to survive the next four years, and even build for the future. We promise to be responsive, to recognize you as members of our community with a vital stake and voice in this work.
Please dig deep if you can, but a donation of any amount will be a truly meaningful and tangible action in this cataclysmic historical moment. We are presently looking for 143 new monthly donors before midnight tonight.
We’re with you. Let’s do all we can to move forward together.
With love, rage, and solidarity,
Maya, Negin, Saima, and Ziggy