Judge Cannon did everyone a favor.

September 7, 2022

          In one respect, Judge Aileen Cannon did everyone a favor in her decision to appoint a special master to review the Mar-a-Lago search. She wrote an opinion so awful and bereft of legal reasoning that commentators on all sides of the political spectrum are panning the opinion as an abomination. Indeed, they are falling over themselves to find adjectives, comparisons, and metaphors that adequately describe the havoc of her decision. Here is a fair sampling:

• Her decision is utterly lawless [and] she disgraced her position as an Article III judge. [Laurence Tribe @tribelaw.]

• [H]er order in this case is nonsense. [Joyce Vance, Civil Discourse]

• [A] trainwreck of judicial reasoning. [Ian Millhiser, Vox]

• [L]awless partisan hackery. [Dahlia Lithwick, Mark Joseph Stern, Slate]

• [U]ntethered to the law. [Andrew Weissman, The Atlantic]

• [A] political conclusion in search of a legal rationale. [Jessica Levinson, MSNBC]

• [D]eeply problematic. [Ronald S. Sullivan Jr., a Harvard Law School]

• [L]aughably bad. [Samuel W. Buell, a Duke University law professor]

          And then there is Bill Barr, a man who destroyed his legacy to support Trump. Here is what Bill Barr told Trump’s supporters during an appearance on Fox News:

The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways.

[T]he government has very strong evidence of what it really needs to determine whether charges are appropriate . . . there’s some evidence to suggest that they were deceived.

[N]one of [the government’s case] really relates to the content of documents. It relates to the fact that there were documents [at Mar-a-Lago] and the fact that they were classified and the fact that they were subpoenaed and never delivered.

          My point is not to trash Judge Cannon’s integrity, intelligence, or fairness. She has already done so beyond my meager ability to add to the opprobrium already heaped upon her. Rather, the point is that Judge Cannon now understands she is universally regarded as the most incompetent, biased, and clueless federal district judge in the nation—and that is saying something!

          How Judge Cannon responds to that stomach-churning realization is what matters. Will Judge Cannon attempt to undo her grotesque error by revising her order? Will she reject efforts by Trump’s team to exploit the legal gruel disguised as analysis in her opinion? Or will she redouble her efforts to serve as Trump’s surrogate defense counsel from her position on the bench in the Southern District of Florida?

          The next few days will provide much more information about Judge Cannon’s intentions. I infer (read: speculate) that she is in legal waters way above her head and tried to kludge a remedy unsupported by the law. The result is a Frankenstein’s monster that will haunt her for the remainder of her career. Her decision is already being cited as “The Loose Cannon Rule,” under which criminal defendants can seek a stay of federal criminal proceedings whenever evidence is seized under a search warrant.

          The DOJ has many paths forward, most of which are legally complicated and equally unsatisfactory. But as Bill Barr also noted in his comments to Fox News, the decision is more like a “rain delay.” One of the most likely steps is for Merrick Garland to proceed with the special master process and appeal the order staying the investigation—which is a constitutional insult of the highest order.

          In her order, Judge Cannon has told the Article II branch of the government that it may not perform the duties granted to it by the Constitution. As Neal Katyal noted yesterday on MSNBC, none of his first-year law students at Georgetown would suggest such an outlandish and unsupported violation of separation of powers. Although the University of Michigan Law School is not the guarantor of the future performance of its graduates, the faculty at the U.Mich.Law should be revising their syllabi to add a few extra sessions on separation of powers—not to mention a deep dive into US v. Nixon. And judicial ethics. And legal research. And common sense.

          In the end, Judge Cannon’s decision is so bad it cannot stand. The DOJ will find a way to circumvent the worst parts of her ruling. Trump stole classified documents, concealed them, lied about it, and refused to return them after being served with a grand jury subpoena. He is in deep trouble. If past is prologue, Trump will make his predicament worse by uttering new lies and issuing new admissions. Read on!

WaPo reports that material seized at Mar-a-Lago includes information on nuclear capabilities of a foreign country.

          Shortly after the search of Mar-a-Lago, the Washington Post reported the FBI was seeking to recover documents relating to “nuclear” issues. After that initial article, Trump repeatedly taunted the Post (and the FBI) when the search inventory did not list “nuclear” documents—never mind that the descriptions of seized documents were intentionally vague to avoid disclosing classified information.

          On Tuesday, the Post ran a story with the headline, Material on foreign nation’s nuclear capabilities seized at Trump’s Mar-a-Lago. The story suggests but does not explicitly state that the “nuclear” material was classified or a defense secret. (For example, it is possible that Trump had public information such as a newspaper article describing the nuclear capabilities of Israel.) But a fair reading of the article is that the nuclear information recovered during the search was classified information and a defense secret.

          If Trump stole defense secrets relating to the nuclear capabilities of a foreign nation, the most pressing question is, “Why?” One reasonable answer is that Trump intended to barter that information for favors from a foreign country. But we need not worry about proving that Trump stole the information for nefarious purposes. National defense secrets are closely held because their unintentional disclosure could cause grave danger to US national security. Unauthorized possession of documents relating to a friend’s or foe’s nuclear capabilities is a crime and should alarm every American.

          Let’s see if Trump now denies that he had information relating to the nuclear capabilities of a foreign nation. If past is prologue, Trump will make his predicament worse by uttering new lies and issuing new admissions!

New Mexico judge bars county official from office over participation in “insurrection” on January 6th.

          The Fourteenth Amendment provides, in part,

          No person shall . . . hold any office . . . under any State, who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

          On Tuesday, a New Mexico state court judge invoked the Fourteenth Amendment to remove a county commissioner from office for participating in the January 6th assault on the Capitol. See Lawfare Blog, The Dry Run: The Ouster of a County Official as an ‘Insurrectionist’ Creates Ominous Precedents for Trump. The judge’s order is here: Findings of Fact, Conclusions of Law, and Judgment

          Commissioner Couy Griffin was convicted of a federal misdemeanor of entering and remaining in a restricted zone in the Capitol. Griffin was the founder of “Cowboys for Trump.” Three New Mexico residents filed suit to remove Griffin from office. After a two-day bench trial, Judge Francis Joseph Mathew made the following findings of fact and rulings of law:

Mr. Griffin and his organization Cowboys for Trump played a key role in the Stop the Steal movement’s mobilization efforts ahead of the January 6, 2021 attack on the United States Capitol.

The mob also made it clear—through their words, chants, flags, banners, and clothing—that they came to the Capitol for the explicit purpose of stopping the certification of the 2020 election and the transfer of presidential power by force.

Based on the trial evidence and argument, the Court concludes . . .  the January 6 attack and surrounding planning, mobilization, and incitement were an “insurrection” against the Constitution of the United States, and Mr. Griffin “engaged in” that insurrection.

          The ruling will be appealed but add the judgment against Griffin to the legal woes hounding Trump. For what it is worth, the judge who removed Griffin was appointed by New Mexico’s previous governor, Susanna Martinez, who is a Republican.

Two opportunities for reader engagement.

          Registering eligible high school students to vote is critical to preserving our democracy over the long term. The Civics Center is sponsoring High School Voter Registration Week starting on September 19th. Please check out the link to learn how you can help to boost registration rates for future voters in high school. You can volunteer and—after a training session—receive a “Democracy in a Box” kit to lead a successful voter registration event at your school. You can also help promote High School Voter Registration Week by sharing this blog post or tweet.

          And for those of you who are fans of Jessica Craven (and who isn’t?), she will be hosting an event on Thursday, Flip North Carolina with Red Wine and Blue - Thursday, September 8, 8:00 PM Eastern / 5:00 PM Pacific. Here is a note from Jessica:

Come meet Katie Paris, founder of Red Wine and Blue, and help channel the power of suburban women to win in North Carolina. Jessica Craven of Chop Wood Carry Water will moderate. Red Wine and Blue’s organizers are not political professionals. They are moms who live in the hotly contested communities they are organizing. They are the secret ingredient to reaching beyond the choir and engaging the voters we need to elect Cheri Beasley in November. Register for the zoom or donate here. Also, check out their clip from Good Morning America.

On a personal note . . . .

          Observant readers know that every few weeks during the summer, I retreat to a remote location where I have intermittent access to the internet. That remote location is a small cabin in a mountain community in an isolated corner of Sequoia National Park. Over the Labor Day weekend, my wife and I retreated to our cabin and, for the first time, were able to bring one of our granddaughters to the cabin—with her mother and father, of course! My wife posted a few pictures of our weekend adventure on her blog.

          My Managing Editor / wife constantly advises me that the newsletter has become too “big and impersonal”—unlike the early days when we knew everyone who received the newsletter and considered them friends and family. So, in the spirit of resurrecting that “family feeling,” I include a link to our weekend in the mountains with our granddaughter, which consists exclusively of pictures of our granddaughter (as you would expect from proud grandparents). See Cora at the Cabin! (everydaywithjill.com).

Concluding Thoughts.

          I am a lawyer and admit that I am exhausted and a bit overwhelmed by the deluge of legal developments relating to Trump, January 6th, and the Stop the Steal Movement. I can imagine that it is even more daunting for non-lawyers. The legal nuances, interminable delays, and procedural maneuvering make it difficult to discern what is important and what is spin. But despair not! The fact that there is forward movement on multiple fronts is a positive sign that should give hope to all who value the rule of law.

          Dennis Aftergut makes this point in his essay in The Hill, Preserving the Rule of Law: Successful law enforcement has a domino effect. (Aftergut is Counsel to Lawyers Defending American Democracy—a worthy organization!) Aftergut lists multiple instances where action by prosecutors in one case return results in other cases. For example, one week after the Mar-a-Lago search, Mark Meadows suddenly turned over texts to the National Archives that he failed to surrender in the prior two years. Coincidence? Maybe. Or maybe Meadows’ lawyers reviewed the redacted FBI affidavit in the search of Mar-a-Lago and concluded that Meadows might be facing charges of obstruction, or worse.

          Similarly, Aftergut notes that no January 6th defendant has taken a case to jury trial after Thomas Webster was convicted on May 2nd. (Webster later received a 10-year sentence.) Aftergut concludes, “Effective law enforcement by good investigators, prosecutors, judges and juries has a compounding effect.”

          There is more, but you get the point. Even when prosecutions are difficult, complicated, or lengthy, the fact of their existence changes behavior in unexpected ways. So, don’t put much stock in Trump’s bloviating about the special master appointment. His social media posts—a.k.a. “admissions”—will only serve to complicate (or doom) his defenses. It’s okay not to follow every legal twist and turn. The important thing is that the DOJ is finally creating momentum that is self-sustaining. Aftergut concludes,

          Political narratives are not what count with the FBI, with prosecutors and judges or with juries. What matters is how the facts fit into the criminal code. And what you say in public “can and will be used against you.”

          The dam is beginning to crack. Many Trump administration officials are having serious conversations with lawyers about conduct that seemed (at the time) designed to “stick it to the libs.” Now that conduct appears to be espionage, treason, obstruction of justice, lying to the FBI, theft of government property, and violations of the Presidential Records Act. The more Trump draws attention to the Mar-a-Lago search, the more nervous his co-conspirators will become. Eventually, one of them will flip. And then the dam will burst. Until then, we have elections to win in November, so stay focused on what we can control as we wait for the domino effect to begin.

          Talk to you tomorrow!