Starting today in her Florida courtroom, Judge Aileen Cannon, whom Trump appointed to the bench during his waning months in office, is hearing arguments about whether Jack Smith’s appointment as special counsel is constitutional. It’s staggering that this is even happening, for a couple reasons.
First, Donald Trump’s legal team is arguing that Attorney General Merrick Garland had no legal authority to hire Smith. This is absurd. Attorneys general—and, sometimes, presidents and the D.C. Circuit Court—have been appointing special counsels since Ulysses Grant tabbed John Henderson to probe the Whiskey Ring. Since the 1970s, The New York Times reports, the courts have routinely rejected such challenges. The Supreme Court upheld the appointment—by Robert Bork, no less—of Leon Jaworski as special prosecutor for Watergate. Other similar challenges have been tossed.
Second, when courts have considered these petitions, they’ve usually done so on the basis of written arguments. To schedule a hearing that will extend over two days is … is what, exactly? A show of fealty to Dear Leader, probably. In addition, Cannon is allowing three lawyers who have filed amicus briefs to make 30-minute oral presentations. As one law professor told the Times: “The fact that Judge Cannon granted the amici request for oral argument seems to suggest that she is seriously considering the constitutional argument against the appointment of the special counsel.”
So, yes. Cannon is entirely capable of ruling that Smith’s appointment was unconstitutional. Lord knows, she has shocked us before. After the FBI Mar-a-Lago raid, she barred prosecutors from using any of the evidence collected there pending a review by a special master. Earlier this year, she issued an order asking both legal teams to submit preliminary jury instructions. The order seemed to embrace a key tenet of the Trump legal defense. There’s a lot more.
Next Monday or Tuesday, the arguments about Smith’s appointment will wrap up, and sometime thereafter, Cannon will render her decision. Can you imagine this relatively minor judge, one of 29 federal judges for the Southern District of Florida, who sits in the great metropolis of Fort Pierce, can hold the fate of the republic in her hands like this?
Well, she does.
And remember—if she decides that Smith’s appointment was unconstitutional, that deep-sixes not just the classified documents case over which she’s presiding but the even more important (in my view) January 6 insurrection case that’s supposed to be heard in Washington, pending the Supreme Court’s decision on presidential immunity. (The Justice Department would presumably appeal an adverse determination, so the Smith appointment matter may also end up at the Supreme Court one of these days.)
It’s just mind-boggling to think about this. It’s just never been more obvious that a judge is doing the bidding of the president who appointed her. It’s worth taking a look, by the way, at her confirmation vote before the Senate. It happened on November 12, 2020, five days after Joe Biden was finally declared the winner of the election. She was confirmed 56–21, with 12 Democrats joining the Republicans to elevate her. And 23 Democrats, including Judiciary Committee Chairman Dick Durbin, didn’t even vote.
So that’s the indifferent way she got to the bench in the first place. And now, she has the power to let a man who stole national security secrets and spent months ignoring polite requests from the FBI to come down to Palm Beach to see what he had, and who egged on a violent mob to break into the Capitol building and try to hang his own vice president get away with it all.
And of course there’s the Supreme Court too. Remember the high court’s timeline. The court announced that it would take up the immunity case on February 28. It heard the arguments almost exactly two months later, on April 25. And now here we are, creeping up on two months after that. And still no decision.
Why is all this being slow-walked? It’s obvious enough. They’re trying to help reelect Trump and hasten the arrival of the Christian nationalist post-democratic order. Federal judges and Supreme Court justices can read newspapers and polls. They’ve seen the polls showing Trump’s felony conviction in the Stormy Daniels case is hurting him, especially with independents, and they have no doubt seen this new crop of polls showing Biden creeping into the lead—Thursday, for the first time this year, Biden edged ahead of Trump on the FiveThirtyEight poll tracker. It’s 0.1 percent, but it’s a lead.
So this is what we’re going to see over these next months. The Trump campaign will be getting a push from corrupt right-wing judges, a right-wing propaganda network (actually, two, three, four, or five of them, depending on how you count), and a bunch of CEOs who want their next tax cut more than they value the continuing survival of the world’s oldest democracy. And Aileen Cannon is the most potent symbol of the whole corrupt network: She cares nothing about the law and the country’s best traditions, and there is no way for any of us to do anything about it.
Well, there’s one thing: Vote, in huge numbers. We’re still enough of a democracy that that matters.
