Filenews 19 July 2024 - by Timothy L O'Brien
Perhaps it's just a coincidence that U.S. District Court Judge Aileen Cannon overturned the criminal case accusing former U.S. President Donald Trump of embezzling classified information on the first day of the Republican National Convention.
It may be a coincidence that, instead of dismissing the case when it first came to its courtroom in 2022, Cannon may have discovered the legal rationale for doing so only after Supreme Court Justice Clarence Thomas laid the groundwork for her in an opinion published two weeks ago.
And it may be a coincidence that Cannon, whom Trump appointed to the federal bench, has delayed the case since it arrived in her office — giving Trump and his lawyers plenty of leeway to delay the process until a second term gives him the authority to bury her completely.
However, these are many coincidences.
Coincidences aside, the case of the documents against Trump rested on a damning body of evidence, including surveillance footage from Trump's own security cameras at his Mar-a-Lago residence in Palm Beach, Florida. Trump allegedly hid classified files in piles of boxes there — including in a ballroom and bathroom — including some related to nuclear weapons programs. He may have violated the Espionage Act. He may also have lied to federal officials about the documents and thus obstructed justice.
Among the many prosecutions against the former president, the case of the documents seemed easy to explain to the jury. It is also very much about Trump's post-presidential behaviour and would not enjoy the legal protections afforded by the recent Supreme Court decision expanding presidential immunity from criminal prosecution. And now all that goes.
It's another milestone that shows how deeply engaged Trump has been with the rule of law — and how much — he has been undermined since coming to power.
Cannon argued in her ruling that special counsel Jack Smith, who is prosecuting the documents case, was unlawfully appointed by the Justice Department and Attorney General Merrick Garland. Special advisers require congressional approval, she argued.
In her ruling, Cannon also cited Thomas' unusual assent to the immunity case. "If there is no law defining the office held by special counsel, then he cannot proceed with this prosecution," Thomas wrote in his concurrence, referring to Smith's appointment. "A private individual cannot prosecute anyone, let alone a former president."
Thomas said those appointments violated the appointment clause, opening a door that Cannon then walked through. Cannon certainly could have forged her own decision long before Thomas wrote his, and it may have had no influence on how she thought about the documents case. However, this reinforces any theories.
Thomas' reasoning raises questions about who should lead federal prosecutions — law enforcement officials or members of Congress. The judge's logic could have been more authoritative and persuasive if he had also noted the appointments of two other special counsels: Robert Herr, who oversaw a classified documents case involving President Joe Biden, and David Weiss, who is handling Hunter Biden's gun case. But he did not mention them.
Cannon said in her ruling that "the validity of this order is limited to this proceeding." That's a weird little addition he made. I'm not a lawyer, but I can't help but wonder if he wanted to make sure he didn't offer legal fodder to critics of Herr and Weiss' appointments. Maybe it's just another coincidence.
The Justice Department has historically used special counsel to avoid political conflicts of interest. Garland, for example, was nominated by a Democratic president, and his team prosecuted a Republican candidate. Smith's appointment was meant to remove Garland's own judgment from the mix.
Thomas and Cannon would substitute for congressional judgment on such matters, suggesting that they believe politicians will not politicize prosecutions involving other politicians. Congress has never been particularly reluctant to settle political arrangements, and the idea that its members will responsibly exercise such new powers is ridiculous.
The Justice Department will undoubtedly appeal Cannon's decision, which offers Smith a chance to finally walk away from a case he oversaw with plenty of procedural amateurism. Perhaps, this will finally be a bright spot for prosecutors.
But this assumes that law enforcement can indeed take its case to the end. If Trump is re-elected in November, he will nominate his own attorney general. The chances are high that Trump will then remove Smith from the case or force the Justice Department to drop it.
There are laws. There is the rule of law. And then there's Trumplandia, where Trump does whatever he wants. Choose, because no matter how you do it, you will shape the future and success of the American experiment.
Performance – Editing: Stathis Ketitzian
