“Not so special.”
December 2, 2022
In a foregone conclusion, a panel of the 11th Circuit Court of Appeals ordered Judge Aileen Cannon to dismiss the lawsuit filed by Trump that sought return of documents seized by the FBI at Mar-a-Lago. Because the lawsuit is dismissed, the special master appointed by Judge Cannon has no further oversight of the documents seized pursuant to the search warrant.
The opinion of the 11th Circuit panel was a scalding rejection of every argument made by Trump—and by Judge Cannon on Trump’s behalf. The panel held the following:
Judge Cannon improperly exercised jurisdiction over Trump’s claims.
Judge Cannon’s orders violated the separation of powers between the judiciary and the executive.
Judge Cannon improperly granted Trump special consideration on the theory that “the stigma associated with the subject seizure is in a league of its own [because] of Plaintiff’s former position as President of the United States.”
Even if Judge Cannon had properly exercised jurisdiction over Trump’s claims, Judge Cannon ignored controlling legal precedent that would have nonetheless required dismissal of Trump’s lawsuit.
The above four-point summary is my effort to distill the essence of the 11th Circuit’s opinion and does not track the precise language used by the Court. If you are interested in a detailed but understandable explication of the opinion, I urge you to read Joyce Vance’s essay in Civil Discourse, 11th Circuit to Trump: You’re Not Above the Law! (substack.com). Or you can read the 11th Circuit’s opinion in full here: Trump vs. United States of America.
As Joyce Vance notes, the usually reserved 11th Circuit peppered its opinion with unmistakable expressions of pique with Judge Cannon. Vance writes,
The Court says, “the callous disregard standard has not been met here, and no one argues otherwise.” This is the judicial equivalent of saying: “You had only one job.”
All Americans should breathe easier tonight because a panel of the 11th Circuit that included two Trump appointees refused to create a “Trump exception to the rule of law.” The facts and law on appeal permitted only one outcome, and the 11th Circuit wasted no time in reaching the right result, i.e., that Trump is “not so special” as to deserve his own rules of jurisprudence.
But the detour to get to the right result impeded an urgent national security investigation for three months because a judge hand-selected by Trump’s legal team granted wildly inappropriate relief that everyone knew was egregiously wrong from the start. We cannot leave this sordid chapter in the Mar-a-Lago investigation without asking the question, “How was Trump able to achieve three months of delay by filing meritless claims?”
There are two likely answers, both involving Judge Cannon: She is either grotesquely incompetent or biased to the point of corruption. Sadly, the evidence suggests the latter is true.
On the issue of incompetence, a generous interpretation includes the following: Judge Cannon was a recent appointee to the federal bench with no background in handling national security matters and erred grievously in ordering a co-equal branch of government to suspend performance of its constitutional mandate to enforce the laws of the United States.
After Cannon’s initial order provoked national howls of disbelief, the DOJ filed a preemptive notice of appeal and request for stay that provided a compelling primer on the law of defense secrets and classified material. In effect, the DOJ offered Judge Cannon a “do-over” to recover from her initial blunder. She refused the generous invitation to follow the rule of law and save herself from a legacy of ignominy.
This brings us to the bias / corruption prong of the analysis. In this interpretation, Judge Cannon acted from a position of extreme bias designed to reward Trump for appointing her as a federal judge and curry favor with him in the event he is re-elected. No money changed hands; no bribe was paid. But the “quid pro quo” was obvious to even the most casual observers.
The evidence includes the fact that Trump’s lawyers “judge-shopped” their case by bringing to Judge Cannon a matter already pending before Magistrate Bruce E. Reinhart. Judge Cannon was initially shocked by the blatant judge shopping—as was everyone else. Her first action was to issue a clerk’s order that required Trump to file a supplemental brief addressing the following two questions:
The asserted basis for the exercise of this Court's jurisdiction, and
The effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart.
Thus, from the outset, Judge Cannon signaled her beliefs that she did not possess jurisdiction to hear the matter and that any challenge to the search warrant should be directed to Judge Reinhart. But Judge Cannon quickly had a change of heart (for reasons we will never know) and immediately began acting like Trump’s advocate instead of a neutral judge.
In particular, Judge Cannon never required Trump to (a) provide any admissible evidence to support his challenges to the search warrant or (b) state definitively if any of the seized records were protected by executive privilege (which was the original basis for his demand for return of the documents). Federal judges decide the matters before them based on the facts presented by the parties.
Here, Trump presented no facts on which Judge Cannon could grant relief. That fact alone should have been fatal to Trump’s request for extraordinary relief and is an inexplicable deviation from judicial procedure that reeks of bias to the point of corruption.
A rough analogy is this: Imagine your neighbor sues you over a boundary dispute between your adjoining properties. Before trial, the judge grants judgment in favor of your neighbor without requiring any proof that the neighbor has a possessory interest in the disputed property. You would be rightly outraged that relief was granted to your neighbor in the absence of any facts to support his claim.
That is the record on which Judge Cannon granted Trump relief that had never before been granted to any party in the history of the United States of America. If Judge Cannon was going to grant such extraordinary relief, she should have demanded facts from Trump to support his claim. That she did not bother to do so suggests an intentional disregard for judicial procedure.
And then there is Judge Cannon’s novel and offensive ruling that “the stigma associated with the subject seizure is in a league of its own [because] of Plaintiff’s former position as President of the United States.” In so ruling, Judge Cannon telegraphed that she was granting Trump extraordinary relief because he is Trump—the man who appointed her to the bench less than two years earlier. Her special standard of deference applicable to one man violates the bedrock principles of the Constitution, including the Fifth and Fourteenth Amendment Equal Protection clauses. Her “Trump is special” standard is the antithesis of justice; it makes a mockery of justice. It is nothing short of shocking.
So, what is the nation’s remedy against a rogue (and potentially corrupt) district court judge? Impeachment is the only remedy offered by the Constitution in such situations. As for Judge Cannon, she deserves condemnation and ridicule for issuing a series of nonsense orders that would receive a failing grade in a law school civil procedure class. Tell a friend.
Kanye. Elon. Trump. Antisemites.
Kanye West appeared on Alex Jones’s “InfoWars” podcast and made so many offensive statements that Jones tried to reel Kanye back to reality—to no avail. Among other things, Kanye said,
Well, I see good things about Hitler. Every human being has value that they brought to the table, especially Hitler.
The above statement finally caused the GOP members of the House Judiciary Committee to delete a tweet that has been up since early October. The tweet glorified the three spiritual heroes of the GOP’s white nationalist wing—“Kanye. Elon. Trump.” Of course, the GOP’s tweet remained posted for weeks after Kanye tweeted “I’m going death con 3 On JEWISH PEOPLE.”
So, just so we have this straight, implied violence against Jewish people is not enough to shame the GOP into to removing Kanye’s name from their list of heroes, but outright Hitler worship is beyond the pale. Okay, glad to see that there are some lines that even Jim Jordan won’t cross. Sadly, drawing the line at “Hitler worship” illustrates the depravity of the GOP.
Over at Twitter, Kanye retweeted a screenshot of a Jewish star with a Swastika superimposed in the middle, allegedly in an attempt by Kanye to show his mutual love for Nazis and Jews. See Mediate, Kanye West Shares Image of Swastika Combined with Star of David After He Says He Loves Nazis. How did Elon Musk respond in his new role as the uber-arbiter of content at Twitter? He did nothing.
We must condemn Kanye and Trump and Elon, not merely because they are (or tolerate) antisemites, but because we must demonstrate to Jews across the world that America will not tolerate antisemitism. I want you to know that readers of this newsletter have sent private emails to me expressing fears that America is starting down the path followed by pre-war Germany. Given what happened in Germany, their fears are not irrational, and they deserve the unstinting and vocal support of all Americans.
Senate passes bill to avert rail strike, denies paid sick leave.
The Senate passed the bill to avert a national rail strike but did not pass the separate bill to include seven days paid sick-leave. I have written about his subject in the last three newsletters and have received lots of reader reaction. So, rather than repeating my views, here are some reader comments that disagree with the points I have made in previous newsletter:
Reader WW said, “You and many others I read provide two figures on the potential damage of a railroad strike ($2 billion a day and 700,000 jobs lost). I think those figures are worth questioning because they apparently come from industry sources . . . Those amounts pop up so frequently that I suspect an organized campaign is circulating them to media. They are also repeated without any context. For example, how big a hit is 700,000 jobs when according to some sources 6 million jobs are lost or left each month. And how big a hit is $2 billion a day in an economy running a GDP of $26 trillion a month.
Several readers asked why it always seems to be union workers who are called upon to make a sacrifice to avoid damage to economy.
Several readers forwarded an essay by Robert Reich, The one thing you need to know about the railroads (substack.com). Reich argues that the rail industry is abusing its monopoly power to treat workers unfairly by holding the economy hostage.
Two readers recommended an article that attempts to explain why the issue of paid sick leave is such a sticking point in the negotiations. See NYMagazine, Rail Strike: Why The Railroads Won’t Give In on Paid Leave. Although the article did not change the readers’ minds about support for paid sick days, it does explain the tension between “precision scheduling” and inflexible work schedules.
Here’s the upshot: No one will remember that Biden avoided damage to the economy and preserved jobs, but the loss of paid sick days will be a thumb in the eye of union workers forever. Let’s hope that unions remember that Democrats voted for paid sick leave in the House and Senate while Republicans did not. See More Than 200 Republicans Voted Against Paid Sick Days for Railroad Workers (yahoo.com).
Cochise County election officials certify results.
The Republican election officials who failed to certify election results have finally done so after the Arizona Secretary of State obtained a court order compelling them to do so. See NBCNews, Arizona county that balked at certifying election results finalizes tally after court order.
This is a good outcome because it provides a dry run for 2024 and gives everyone information about the likely outcome for election officials who refuse to perform their statutory duties.
Georgia early voting.
The daily early voting in Georgia continues at a blistering pace—reaching 1.5 million after a week of early voting. But because the early voting period in the run-off is shorter than the regular midterm election, the total early voting in the run-off will fall far short of the midterm vote—which was 2.5 million. So, should we panic?
No, for two reasons. First, according to exit polling and modeling, Democrats have pulled ahead in the run-off early voting by about 8 percentage points. BUT . . . an early lead in the early voting can be overcome by election day voting. So we must continue to get out the early vote and show up on election day! We must not grow complacent or confuse turnout and victory. It will be a close contest, so every vote matters!
Of course, the big news in the real political universe is that Joe Biden hosted President Macron of France for a state dinner. Oh, and Biden has weighed in on re-ordering the primary schedule for Democrats. More on both of those over the weekend, and apologies for giving them short shrift in today’s newsletter.
I was struck by an article in Rolling Stone which exemplifies much of the problem with political reporting. Republicans are not good faith participants in the political process, but when journalists write about politics, they frequently treat both Republicans and Democrats as though they stand on equal footing. They do not.
Rolling Stone reports that DeSantis has instructed his team to “keep quiet” about Trump’s dinner with Kanye and Fuentes. See Rolling Stone, Team DeSantis 2024 Keeps Quiet Over Trump’s Dinner with Kanye, Fuentes. The article is well-written, detailed, and balanced. But it is all about “inside baseball” in the political world—who said what, who is stabbing who in the back, and which way the political winds are blowing.
So, what’s missing from the article? What’s missing is any comment on the fact that the governor of a state with a large Jewish population has chosen silence in the face of Trump’s socializing with two antisemites and a white supremacist. There is no sense from the author that DeSantis has done anything wrong, merely that he is calculating the political consequences of his every move. Really? That’s the story? Not DeSantis’s silence in the face of a groundswell of antisemitism in the GOP?
Journalists are under no obligation to be cheerleaders for the Democratic Party, and they must be fair and balanced—to a point. When someone burns down a synagogue, the story is not what type of accelerant the arsonist used or how long the fire burned—it is that someone burned down a synagogue because of animus toward Jewish people.
The story about Ron DeSantis’s silence in the face of Trump’s antisemitism is not how that decision will affect DeSantis’s chances of becoming president—it is that DeSantis is a calculating coward who will condemn antisemitism only if and when it benefits him politically—which makes him unfit to hold any public office. That’s the story Rolling Stone missed.
Talk to you over the weekend!
Excellent comments on Rolling Stone’s failure to call out DeSantis!
Your last paragraph describes exactly why I dropped my “paid” subscriptions to the NYT and WaPo and upgraded my Substack subscriptions to “paid” for HCR, JV, and your daily post. These are my first reads every morning. Your historical/legal perspectives are insightful and appreciated.