The education of Aileen Cannon

July 16, 2024

Judge Aileen Cannon is not smart enough to come up with the idea of ignoring controlling precedent to hold that special counsel Jack Smith’s appointment violates the Constitution. Instead, she received not-so-subtle tutoring from six reactionary justices on the US Supreme Court who have signaled that judicial precedent has the binding force of fairy tales—“just so” stories to be invoked when convenient but otherwise irrelevant to the process of judicial decision-making. When precedent is meaningless, the law is rudderless, and we are reduced to judges running popularity contests or selecting random outcomes from a Bingo hopper. To state the obvious, that is not good for the rule of law.

On Monday, Judge Cannon gave Donald Trump a hostess gift for the Republican National Convention. She dismissed the federal indictment against him for unlawfully retaining defense secrets after the National Archive, DOJ, and FBI demanded the return of the documents. To achieve that lawless result, she ignored dozens of other decisions—including binding Supreme Court precedent, which previously held that appointing a special counsel is consistent with the Constitution.

Cannon dared to tell the Supreme Court that its prior acceptance of the validity of special counsel appointments was “dictum”—that is, unnecessary surplusage not relevant to the decision in a case. See Just Security, Judge Cannon Dismisses Trump’s Classified Docs Case: What’s Next?

As explained in Just Security, the Supreme Court upheld a subpoena by special prosecutor Leon Jaworski issued to then President Nixon. Although the Supreme Court did not rule on a challenge to the validity of Jaworski’s appointment in US v. Nixon, the Court did rule on the authority of Jaworski to issue a subpoena to the president. If the Supreme Court believed Jaworski had no authority to issue the subpoena because he was not validly appointed, it would have told him so. It did not. Rather, the Court ruled unanimously in US v. Nixon that the special prosecutor had the authority to issue subpoenas to the president—and that the president was required to comply with those subpoenas.

The justices on the Supreme Court who unanimously joined in the US v. Nixon opinion were Warren Berger, William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun and Lewis F. Powell. Several legal giants were included on that bench!

But Judge Cannon rejected the unanimous ruling of those legal giants in US v. Nixon and instead favorably cited the solo dissent of Clarence Thomas in Trump v. US—a case that involved the existence of a legal defense but not the validity of the special counsel’s appointment. None of the other reactionary justices joined in Clarence Thomas’s baseless dissent in Trump v. US in which Thomas claimed that appointment of the special counsel violated the Constitution.

Is Judge Cannon’s lawless decision good? Bad? Both? The answer is a qualified “Both.” Jack Smith has already announced he will appeal the ruling to the 11th Circuit. In a world where the 11th Circuit follows the law, it will overrule Judge Cannon and remove her from the case. That would be a good result.

But what will the Supreme Court do? In a just world where the Supreme Court respects the rule of law and its own precedent, the Court should affirm the reversal of Judge Cannon’s opinion. But after its gonzo ruling in Trump v. US, predicting outcomes in the Supreme Court is dangerous business. See, e.g., Robert Hubbell in this newsletter,

When precedent is meaningless, the law is rudderless, and we are reduced to judges running popularity contests or selecting random outcomes from a Bingo hopper.

 Moreover, Judge Cannon has ensured that the defense secrets case cannot be tried until after the 2024 presidential election. No matter. We are precisely where we were before Judge Cannon’s ruling: The courts will not save us. Trump will be held accountable only if Joe Biden wins the 2024 presidential election. We are not merely electing Biden; we are defending the rule of law.

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Trump selects JD Vance as his running mate

In a surprising but predictable move, Trump selected US Senator from Ohio JD Vance as his running mate. The move was predictable because Vance won the contest to see who could contort himself into adopting the most extreme MAGA positions. Senator Marco Rubio and Governor Doug Burgum were pikers compared to the pro-Russia, anti-democratic, anti-choice, anti-LGBTQ, election denialism of JD Vance.

Many of Vance’s positions starkly contrast with those of Vice President Kamala Harris and should make for an interesting debate. For example, Vance

-supports a national ban on abortion.

-supports banning mifepristone.

-opposes exceptions for abortion for rape, incest or the life of the mother (a position he moderated after he was considered as a possible running mate for Trump).

-opposes federal laws to ensure marriage equality for same sex marriages.

-voted against a federal legislation to protect access to IVF.

See The 19th, JD Vance, Trump’s VP pick, has opposed abortion and LGBTQ+ rights and Human Rights Campaign, Hate on the Ticket: Trump Chooses Anti-LGBTQ+ MAGA Acolyte JD Vance for VP Slot.

Vance opposes aid to Ukraine and NATO membership for Ukraine—a perfect gift for Vladimir Putin. See Kyiv Independent, JD Vance opposes military aid, NATO membership for Ukraine. He's now Trump's VP pick.

Before Vance realized that he might become vice president by running to the right of Donald Trump, he described Trump as “America’s Hitler.” See Talking Points Memo, Vance Scores Vice Presidential Nod In Exchange For Total MAGA Capitulation. Per TPM, Vance wrote the following to a friend:

I go back and forth between thinking Trump might be a cynical asshole like Nixon who wouldn’t be that bad (and might even prove useful) or that he might be America’s Hitler.

Vance also wrote in The Atlantic that “Mr. Trump is unfit for our nation’s highest office.”

The selection of JD Vance makes the choice between Biden-Harris and Trump-Vance clearer than ever. MAGA extremists are running two angry white men while Democrats are offering a compassionate, experienced president and a dynamic champion for women and minorities. The battle lines are drawn—in our favor.

We have the advantage on the ticket and on the issues. We should be feeling confident about our prospects—and projecting that confidence to others! As we navigate through this chaotic and confusing patch, people are looking for leaders and social cues to inspire them. If we tell them “All is lost,” they will believe us. If we tell them that Joe Biden and Kamala Harris are harbingers of a better, safer, more just America, they will follow us.

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Senior congressional Democrats criticized for doom and gloom leaks to DC press

Some senior congressional Democrats have apparently given up on their effort to replace Joe Biden on the Democratic ticket. So, instead of doing everything they can to elect Joe Biden, they have concluded that they will undermine Biden by leaking (anonymously) to the DC press that they are “resigned to another Trump term.” That corrosive, cover-your-a** whisper campaign is disrespectful to the millions of Democrats who are working tirelessly to elect Democrats up and down the ballot—including at the top. As Rep. Alexandria Ocasio-Cortez said,

If you’re a ‘senior Democrat’ that feels this way, you should absolutely retire and make space for true leadership that refuses to resign themselves to fascism. This kind of leadership is functionally useless to the American people. Retire.

See HuffPost, 'You Should Retire': Ocasio-Cortez Rips 'Functionally Useless' Senior Dem Over Trump.

Josh Marshall of Talking Points Memo also addressed the report in his daily editor’s blog in a piece entitled “On Not Being Pathetic.” Marshall wrote, in part,

The folks talking to the Capitol Hill [media outlets] didn’t say, “We’re dropping the swap Biden idea.” They apparently said, “Well, we’re giving up on presidential race altogether.”

That is just the kind of toxic loserdom that makes me see red every time. Can’t stand it. I’m agnostic on the replace Biden thing. If the big party players want to do it, then do it. And if not, then Biden’s the candidate.

I go back and forth on which option I think has the better shot at success. What I’m hearing now is that these ringleaders are just going to take a pass on the whole race or have their contribution be giving demoralizing quotes to Politico if they can’t get their way.

The truth is we don’t have any time for whining. If members of Congress want to replace Biden on the ticket, they can. They need to get together and do it. If not, then drop the idea and move on. But again, there is just no damn time for whining.

Marshall’s critique also highlights the danger of publicly stating “Biden can’t win” as a justification for replacing him. Taking that position publicly will compromise the ability of congressional and grassroots leaders to rally the faithful in re-electing Joe Biden if they do not force Biden out of the race

. It is not a well-thought-out strategy, to say the least.

I continue to receive a surprising number of emails from readers criticizing me for supporting Joe Biden. 100% of those emails fail to offer an alternative path to success. As I now reply to every reader (with a cut-and-paste reply), if you want a different candidate at the top of the ticket, calling for Joe Biden to drop out is only 10% of the plan. Please take a positive, proactive approach to identifying, funding, and promoting an alternative path to success. “Be the change you want to see in the world” rather than an issue-spotter whose only role is to criticize those acting on their convictions.

I support Joe Biden because he is the best candidate to beat Trump. If he ever changes his mind, I will work tirelessly to support the new Democratic nominee. But we learned today that some of those seeking to replace Biden are unwilling to make the reciprocal promise to support Biden if he remains the nominee. That isn’t fair or respectful to those Democrats who are going to support any nominee at the top of the ticket. We all want the same outcome and should be allies who deal with one another in good faith. Too much is at stake to walk away if your preferred candidate isn’t at the top of the ticket. I won’t. I hope you won’t, either.

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Opportunities for Reader engagement

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Fundraiser for Joe Biden with Robert Hubbell and Virginia McGregor

I will host a Today’s Edition reader fundraiser for Joe Biden on Thursday, July 18, 2024, at 8:00 p.m. Eastern /5:00 p.m. Pacific.

I did a similar fundraiser in 2020 for Biden’s campaign. Joe Biden needs money to run his campaign in 2024, but he also needs small-dollar donors to demonstrate to the doubters that Democrats have Joe Biden’s back. Do I hope you make a big donation? Sure! However, supporting Joe Biden with a donation of any size is at least as important as the donation amount. Suggested donations start at $25 and go up from there.

I hope you will join DNC Treasurer Virginia McGregor and me as we discuss the state of the race and Joe Biden’s efforts to improve the lives of all Americans.

Again, here is the link: Click here to sign up for Today's Edition Fundraiser for Joe Biden

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Join All in for North Carolina on July 22 to help turn North Carolina Blue!

On Monday, July 22 at 4:00pm ET, All In for North Carolina will be holding an open event for anyone interested in hearing about the exciting additions to the team that is working to turn North Carolina BLUE in the upcoming election. Each of them brings a unique skillset:

·      Cat Lawson, Civic Engagement & Voter Protection Director for the NC Dem. Party: Former clerk to the Chief Justice of the North Carolina Supreme Court and professor at Duke University School of Law. 

·      Monifa Drayton, Executive Director of Mecklenburg Co. Dem. Party: A member of the inaugural cohort of the Congressman James E. Clyburn Leadership Institute who can boast of a 100% win-rate as a campaign manager in Mecklenburg County.

·      Stu Thomas, Organizing Director for Mecklenburg Co. Dem. Party: A Mecklenburg native and organizer in NC and other states who served as Campaign Manager for US Rep. Kathy Manning in 2022, as the Regional Organizing Director for candidate Dan McCready, and with Senator Elizabeth Warren.

North Carolina represents 16 of the Electoral College votes that Joe Biden needs. We are in the home stretch and the stakes could not be higher. Join AINC for an hour of encouragement, hope, good news and calls to action from our friends in North Carolina: AINC Monthly Meeting, July 22, 4:00pm ET.

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Concluding Thoughts

I watched a few minutes of the Republican National Convention until I became nauseated. It is a non-stop commercial for MAGA extremism, and the interviews with Trump supporters on the convention floor were unbearable.

The Republican convention reminds me of the most difficult part of being a trial lawyer. I almost always represented the defendant, which meant that I had to sit through the plaintiff’s opening statement. With no real ability to object during opening statements, there was little to do other than watch opposing counsel present the facts in a misleading, incomplete manner. (To all the plaintiff’s lawyers out there, I understand that none of you ever engaged in such tactics, so no need to send emails clarifying that point.) It felt liberating when I finally got the chance to take the lectern.

But by the time the closing argument rolled around, the opening statements seemed like ancient history. So, too, with the political conventions. They are difficult and unpleasant to watch in the moment, but they quickly recede from memory. In other words, don’t fret over the conventions. We have real work to do and should not waste time watching glossy misinformation produced by dark money donors.

As noted above, I acknowledge that this has been an extraordinarily difficult patch in the campaign. The strength of the grassroots movement has kept the Democratic campaign on track. Everyone who is involved in voter-level politics should be proud of themselves. I am proud of you and grateful for everything you do. Whether you get the credit and recognition you deserve (or not), know that you are the true heroes of democracy who are on the front lines for the struggle for the soul of our nation. It is a noble calling and you are performing like true professionals while many around you are not. Keep up the good work!

Talk to you tomorrow!

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Post-script: Instead of watching the Republican Convention, contemplate the photo below:

The Iris Nebula—a gas cloud back-lit by a bright star. Approx. 1,300 light-years from Earth, with a 6-light-year span. Photo taken with a six-minute exposure on 7/14/24 in Los Angeles. The starless voids are dark dust clouds that are not visible in my photo. Amateur astronomers will immediately realize that my Celestron Origin did not capture the vibrant purple usually associated with Iris Nebula. Thoughts?