Judge Cannon denied the DOJ’s request to exempt 100 classified documents from her order prohibiting the Article II branch of government from performing its constitutionally mandated duties. Before discussing Cannon’s reckless and dangerous opinion, let’s focus on the most important point:
At most, the review of the documents by the special master will delay but not stop the DOJ’s investigation of Trump’s espionage. Trump is cornered. He has failed to raise any substantive defenses to the DOJ’s strong case of criminal culpability, so he is seeking to delay his day of reckoning. That day will come.
That said, it is difficult to express how bad Judge Cannon’s order is. (The order is here: Order Denying Motion for Partial Stay.) The best I can do is to say that it is lawless, corrupt, and dangerous.
The order is lawless because it ignores judicial procedure, established precedent, and the co-equal status of the Executive branch under Article II of the Constitution.
The order is corrupt because it asserts that presidents are entitled to a special standard of justice—a proposition unknown in the law and a reflection of Judge Cannon’s bias in favor of the man who nominated her to the court.
The order is dangerous because it hampers the ability of the US intelligence community to assess whether Trump’s theft of defense secrets has compromised the national security of the US or other nations that have trusted the US with sensitive intelligence.
Cannon’s opinion is also disingenuous to the point of deceit and falsehood. Acting as Trump’s advocate, Cannon ignores the fact that Trump submitted no evidence to contradict the sworn affidavits submitted by the government and instead manufactures “disputes” where no such disputes exist in the factual record. For example, Cannon writes:
[T]he record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials.
That statement by Judge cannon is a falsehood. There is nothing “in the record” about “factual disputes” over personal property and privilege—because Trump submitted no evidence asserting privilege over a single document.
Cannon realizes that the above-quoted statement is a lie and so attempts to create a smokescreen to cover her fabrication. She writes,
[I]t remains the case that [Trump] has not had a meaningful ability to concretize his position with respect to the seized materials . . . .
That statement is also a falsehood. Trump has had multiple opportunities to “concretize” his position by submitting an affidavit asserting privilege—but he has repeatedly failed to do so. The proper procedure in federal court would be for a judge to conclude that Trump has failed to meet his procedural burden and, therefore, grant the DOJ’s motion.
Judge Cannon also dismisses the threat to national security by delaying the damage assessment. She writes:
[T]here has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property.
Judge Cannon’s above statement is a logical absurdity. Until the intelligence community conducts its damage assessment—which Judge Cannon has hampered—it is unable to identify an emergency or possible imminent disclosure. Making that determination is the very point of the damage assessment and the criminal investigation that Judge Cannon has stayed.
There is more to criticize in Judge Cannon’s order, but a more significant point deserves discussion. Within minutes of the release of Judge Cannon’s order, I received texts and emails from readers expressing outrage, disgust, disillusionment, and despair. All of those feelings—and more—are warranted. Trump and the Federalist Society have managed to place corrupt judges on the federal bench—with Judge Cannon being only the latest example.
A claim of corruption is extraordinary. There are other possible explanations. As one reader texted within minutes of the opinion’s release, “Corruption or incompetence?” While it is true that Judge Canon’s order demonstrates appalling incompetence, it is corrupt because it ignores the law and national security while inventing new judicial doctrines that apply only to Donald Trump. If that is not evidence of corruption, nothing is.
Watching the corruption of the federal judiciary by the Federalist Society is sickening. But a note of caution is warranted. Some Trump appointees have acted honorably and followed the law. Despite the preponderance of Trump appointees on the 11th Circuit, we should assume they will honor their oaths to the Constitution until they prove otherwise.
But in the end, federal judges at the trial and appellate level will follow the law only if they believe the Supreme Court will act as a check on dishonesty and bias. The current Supreme Court will not do so—having demonstrated that the reactionary majority views the law as an obstacle to the implementation of its religious and cultural agenda.
The solution to judges like Aileen Cannon is a Supreme Court that enforces the rule of law and standards of judicial conduct and competence. That solution can be implemented tomorrow—by enlarging the Supreme Court to 13 justices. The only thing standing in the way of that solution is a lack of imagination and courage by Senate Democrats. Sadly, things will have to get worse before they get better, but when Democrats have had enough of judges like Aileen Cannon, they can rein in rogue judges by rehabilitating the Supreme Court. Do not despair. We have a solution at hand. We need only be brave enough to use it.
Joe Biden averts national rail workers strike.
Yesterday, the media was filled with breathless descriptions of damage to the economy that would be inflicted by a rail workers strike. (The current contract between rail workers and employers ends on Friday.) The media was primed to blame Biden for the strike and the damage.
Biden’s Secretary of Labor, Marty Walsh, managed to facilitate an “agreement in principle” to be submitted to union members for a vote—thereby averting a national strike for now. If a strike had been called, it would have been “above the fold” front-page news. Having averted a strike, Biden is receiving only begrudging “second-page” coverage of the successful negotiations. See WaPo, Biden’s last-ditch move to head off a politically catastrophic strike, and Politico, `Could have gone either way’: Railroad union deal barely survived.
Add the averted strike to the growing list of Biden victories that are under-reported in the media. No matter. Union members know that Biden intervened on their behalf. As do student loan borrowers. And seniors on Medicare. And climate activists. And people who depend on the Affordable Care Act . . . You get the point. Biden is making people’s lives better, and they are grateful. Although gratitude isn’t the point, Biden’s long list of accomplishments is giving Democrats a tailwind heading into the midterms.
DeSantis’s cruel stunt.
Florida Governor Ron DeSantis sent two planeloads of migrants to Martha’s Vineyard as a political stunt. He called a press conference to say that he was transferring migrants to “sanctuary states” as a way of “sticking it to the libs” (my words, not his).
The stunt was cruel and may have been illegal—a violation of both state and federal law. As explained in Talking Points Memo by Josh Marshall in an article entitled, WTF?. Marshall writes:
DeSantis apparently sent a team to Texas who approached a few dozen Venezuelan immigrants after they emerged shelter in San Antonio, Texas. According to one of the migrants, Luis, age 27, they were “promised a flight to Massachusetts, along with shelter, support for 90 days, help with work permits and English lessons.”
Instead of receiving shelter, work permits, and English lessons, they were abandoned near the airfield. Thus, it appears that DeSantis’s team lied to the immigrants about (a) their destination and (b) the benefits that would be waiting for them when they arrived. And why would DeSantis send a team to Texas to nab immigrants for his stunt? And as Josh Marshall writes, “He may also have broken Florida law by using state money for this purpose.”
DeSantis’s cruelty is receiving harsh criticism in some places, including an Editorial in the Miami Herald, With shameful Martha’s Vineyard stunt, DeSantis dishes out cruelty with a smirk. But among the right-wing media, DeSantis is being hailed as a hero. His recent actions mimic Trump’s use of cruelty as a political stunt. As with Trump, “The cruelty is the point.”
DeSantis has recently adopted the rallying cry of Christian nationalism in campaign appearances. See The Recount tweet, DeSantis says, “So put on the full armor of God and take a stand against the left’s schemes.” Generally, politicians shouldn’t be criticized for their religious beliefs. But when they use those religious beliefs to advance a dangerous creed like Christian nationalism, it is time to start speaking candidly about the perversion of religion for political purposes. I will write more about the dangerous mixture of politics and religion in the future, but for now, let’s acknowledge that DeSantis’s abuse of immigrants is the antithesis of what the Christian religion teaches about caring for immigrants. DeSantis is a hypocrite on many levels, including in his supposed Christian faith.
Focus for Democracy Event.
Focus for Democracy vets and recommends organizations that are particularly effective in registering and motivating voters to show up at the polls. Join Focus for Democracy on Sunday, Sept. 18th at 5pm Pacific/8pm Eastern as it features Working America’s amazing persuasion program and Movement Labs outreach to mobilize thousands of voters, especially Black, Latino and Asian American voters.
I attended a Focus for Democracy presentation on these two groups last week and it was inspiring! Check it out. To register, click here and a Zoom link will be emailed to you.
I followed the rule regarding use of an apostrophe followed by an “s” to form the possessive of a proper name ending in “s” (i.e., DeSantis’s). The rule is ridiculous and should be abolished. If you choose to follow my suggested reform, the correct citation for this new rule is “Hubbell, R., Today’s Edition Newsletter, “Rant Regarding Apostrophes.” (September 16, 2022.)
Trump was interviewed by Hugh Hewitt today and threatened violence if he is indicted. Trump said of a possible indictment,
[I]f it happened, I think you’d have problems in this country the likes of which perhaps, we’ve never seen before. I don’t think the people of the United States would stand for it.
If we put on our “Mob boss de-coder rings,” it is clear that Trump is threatening violence the way all mobsters threaten violence: indirectly.
Trump made his comment because he is frightened and cornered. If he had legitimate defenses to the multiple investigations, he would be making that case on his vanity media platform. The dozens of subpoenas issued in the last two weeks increase the likelihood that one of Trump’s associates will turn on him—making an indictment all but inevitable.
But what of the threats of violence? Is the threat real? Should we be concerned? Yes, the threat is real and we should be concerned. But we must also be realistic about the scale and scope of the threat. Will there be scattered violent protests and an occasional lone wolf? Yes—we have already witnessed both. But we will not see widespread violence. Most people are focused on work and family rather than fighting in the streets for Donald Trump.
We cannot allow Trump’s bluffs dissuade us. If all it takes to suspend the rule of law is the threat of violence, then the rule of law is dead. We must move forward with confidence and determination that might and right are on our side. If there is scattered violence, so be it—and sooner rather than later! The Constitution is worth defending—especially against the empty threats of small-time bully who senses that people no longer fear him. We have the high ground and Trump is on the run. Now is the time for the DOJ to act—as we do our part by defending and expanding our majorities in Congress, state legislatures, county boards, and city councils. We can do that. We did it in 2018 and 2020. Let’s do it in 2022!
Talk to you Monday!
As a subscriber to Today’s Edition (and also to LFAA), it’s become increasingly clear, at least to me, that the two principal factors that will determine whether we remain a liberal democracy or devolve into an illiberal autocracy are the ballot box and the Courts. Were it not for the rich conversations among us inspired by our remarkably learned Substack leaders, speaking perhaps not only for myself, I don’t imagine I would be nearly as adept at asking sufficiently pertinent questions that have guided me towards increasingly plausible solutions. I am grateful beyond words.
It would appear that Justice Roberts needs look no further than Justice Cannon to see why and how so many in our country think the judiciary are becoming political hacks. There can be little doubt left that Justice Cannon is playing to a party of one: tfg.