The Dismissal of the Trump Documents Case Is Yet More Proof: The Institutionalists Have Failed

US District Judge Aileen “MAGA” Cannon dismissed the charges against Donald Trump for stealing classified documents earlier today. She ruled that the appointment of special counsel Jack Smith was unlawful, saying that Attorney General Merrick Garland had no authority to appoint a special counsel in the first place.

This legal argument is not “smart” or even “interesting.” At heart, it’s little different from a tax cheat claiming that they don’t have to pay their taxes because the Internal Revenue Service is an illegitimate agency. Nor is the argument new. The authority of special counsels has been challenged by countless defendants across multiple presidential administrations—from Ronald Reagan’s to Bill Clinton’s. But courts have roundly rejected these challenges on the basis that the power to appoint special counsels is widely recognized by statutes and precedent. Until now, that is. Until now, few serious people thought these challenges had a chance.

The problem these serious people have is that Federalist Society judges generally and Trump-appointed judges specifically are not serious people. They don’t give a damn about what the rules have been or should be. The only laws, precedents, and norms they believe in are the ones that help them achieve their current political goals. Any rule that stands in the way of their social reordering of America is a rule they feel free to ignore. Trump judges understand that judges make the rules, and they consistently act like it.

I’m not surprised that Cannon found some way to dismiss the case against Trump, and frankly I do not think most people reading this are surprised either. Trump was going to escape these charges the moment Cannon was appointed as his judge, and everybody who has an honest understanding of what Trump judges do for a living knew it.

The questions I always have in these moments are why are there still institutionalists who spend ink and air time telling us how things are supposed to work—and when will these people abandon their ivory towers and come down to sit in the muck of reality with the rest of us? How many times do Trump judges have to show us who they really are—and when will the people who defend institutions and courts acknowledge that their cherished “rule of law” does not exist any time a Trump judge gets to decide what the rules are? When will the misguided faith people have placed in Robert Mueller or Jack Smith or John Roberts or “the courts” give way to the stark, dystopian reality that the institutions—and institutionalists—are not only powerless to stop Trump’s authoritarian takeover of America, but are in fact tools of that takeover?

It is depressingly common on the left for people to refer to Cannon as incompetent, but she is not that. She has proven herself not only to be quite an adept careerist but enormously skilled at using the levers of her job to her—and her party’s—advantage. I expect that, should Trump win reelection, she’s in line for a major promotion, either to the Court of Appeals for the 11th Circuit or, should an opening arise, the Supreme Court of the United States.

And if Trump loses? Cannon loses nothing. There is literally no professional downside to her ruling as she did today. Cannon will still be a judge with a lifetime appointment in Florida. Her job is secure, unless someone can find a majority of votes in the House and 67 votes in the Senate to impeach and convict her. So long as the Republicans she aids hold any shred of power, getting fired from her job is not something that Cannon ever has to worry about.

I don’t know how many professional principles each of you would ignore in exchange for that kind of job security and opportunity for advancement, but don’t act like that number is “zero.” Cannon might be a biased partisan hack, but she’s behaving rationally given the utter fecklessness of her opposition. We might feel morally superior to people who take candy from a baby, but Cannon is the one licking the oversize lollipop she filched from institutionalists while all anybody is going to do is cry about it.

Jack Smith, of course, has no choice but to play the losing hand he’s been dealt to the bitter end. As to how he does that, he has two options. First and most likely, he can appeal Cannon’s dismissal to the 11th Circuit. The circuit court will likely stay the dismissal pending a full hearing on the merits, at which point Trump’s lawyers will appeal the 11th Circuit ruling to the Supreme Court. There, six judges who have already declared Trump immune from accountability for official acts while president will have to determine if their fear of Trump’s being held accountable for crimes he committed after he was president is so great that they need to functionally destroy the special counsel rule in order to get him off once again. Of course, all of those determinations will happen after the election, and if Trump wins that election, the whole issue becomes moot anyway.

I’m sure institutionalists will materialize online or on television soon to tell you that the Supreme Court will surely reject Cannon’s ridiculous ruling. They’ll also point out that Smith could ask for the case, when it’s sent back to the district court, to be assigned to some other judge, instead of Aileen Cannon. I promise you, there will be people so desperate to prop up the courts as a legitimate institution that they will try to spin this ruling into a “good” thing. From the institutionalist perspective, “the courts” are good and decent; it’s just that some individual judges, like Cannon, are problematic.

I refuse to drink this Kool-Aid. Trump has hacked the courts by stacking them with his people. We simply have to assume that the Supreme Court will do everything in its power to keep Trump from facing accountability, and that will include destroying the special counsel rule if need be. Once again, Trump has won his battle against accountability, and the people telling you otherwise are selling you something (and probably asking for you to donate money to their campaigns).

Smith’s second option is to take the “L” and punt the case back to the Department of Justice. Attorney General Merrick Garland does have the authority to charge Trump. If Garland wanted to, he could file charges against Trump tomorrow, and he could do so in Washington, DC, obviating the possibility that Cannon gets her hands on this case again. At the time Smith was appointed, I made the argument that Garland should have been handling the case from his own office anyway. Even though Smith has far exceeded my expectations in terms of his diligence and speed in bringing charges, I maintain that the DOJ is perfectly capable of prosecuting a case of document theft without special help.

Unfortunately, what the DOJ is capable of and what Garland is capable of might be two very different things. If you take Garland at his word and believe that he appointed Smith to avoid the political optics of a presidential cabinet member prosecuting a case against their administration’s defeated rival, those optics are probably even worse now, as Trump is about to be nominated by his party, and the case has no chance of being resolved before the next election. All of which means that Garland is unlikely to take the case under his own authority, even though that would be the most expedient and effective legal move.

It is worth noting that the desire to appear apolitical is what pushed Garland to appoint a special counsel, which then opened the legal door for a partisan hack judge to make a political ruling focused on that appointment, instead of the underlying case. Maybe, the next time Democrats hold power (if there is a next time), they could, I don’t know, do what is right instead of worrying about the political optics of it all? Just a thought.

Still, even those thoughts, though, those dreams of what could have been done with a stronger AG who didn’t appear at all times afraid of his own shadow, feel somewhat fanciful. Because the real failure of Democratic Party leadership, and most left-of-center folks, in the Trump era has been the unsupported belief that the institutions and especially the courts can and would hold.

That was simply never going to be the case. Institutions cannot work if only one side agrees to be bound by them. Rules cannot exist if only one side agrees to follow them and there are no consequences for rule-breakers. You cannot have “unity” between people who don’t accept a shared notion of reality. It’s like the institution of marriage: If one person doesn’t believe they are married anymore, it really doesn’t matter how desperately the other person holds on to the idea of their union. The marriage has failed, and if you don’t get that, you’re not a hopeless romantic; you’re just a poor sap who can’t move on with your life.

Two weeks ago, the Supreme Court proved that it valued Trump over the rule of law when it granted him absolute immunity. Today, Aileen Cannon proved that she values Trump over the rule of law when she dismissed the charges against him. The rule of law is not failing—it has failed.

We live in frightening times because the rule of law has failed. America is right now, functionally a failed state. It is wrong and intellectually facile to pretend otherwise. I don’t have the solution, but I know we’ll never find one if we don’t accept the reality of our situation.