THE DOJ MUST APPEAL

Nutty. Crazy.” “Twisting the law into a pretzel.” “A poorly sewn-together fabric of factual misstatements and legal BS.” “Laughably bad.” “So bad it’s hard to know where to begin. … Frankly, any of my first-year law students would have written a better opinion.”

Those were some of the more prominent reactions from legal experts to Federal District Judge Aileen Mercedes Cannon’s decision to grant Donald Trump’s request for a special master to review documents seized from the former president’s Mar-a-Lago estate in an August search that turned up boxes full of classified, secret and top-secret information. Granting Trump’s request could push resolution of the case past the 2024 election.

The decision was so unexpected and so wrong that former Trump Attorney General William P. Barr called for the government to appeal in an appearance on Fox News:

“The opinion I think was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways. I don’t think the appointment of a special master is going to hold up. But even if it does, I don’t see it fundamentally changing the trajectory.

“I don’t think it changes the ball game except for we’ll have a rain delay for a couple of innings. But I think the fundamental dynamics of the case are set, which is the government has very strong evidence of what it really needs to determine whether charges are appropriate, which is government documents were taken, classified information was taken and not handled appropriately, and they’re looking into and there’s some evidence to suggest that they were deceived, and none of that really relates to the content of documents.

“It relates to the fact that there were documents there and the fact that they were classified, and the fact that they were subpoenaed and never delivered, but they don’t have to show the content, you know, the specific advice given in a memo, for example in order to prevail in this case. So I think it’s not really going to change the decision.”

Barr is right. There are serious doubts about whether or not a special master with the proper qualifications for a security clearance to examine top-level classified documents, as well has possess the legal knowledge and gravitas to be accepted by partisans on both sides can even be found. The fact that legal experts on both the left and right are trashing this order suggests that this is not a legal egregious mess.

As Robert Hubbell observed, “Her decision is already being cited as ‘The Loose Cannon Rule,’ under which criminal defendants can seek a stay of federal criminal proceedings whenever evidence is seized under a search warrant.”

That it comes from Aileen Mercedes Cannon, a 15-year member of the Federalist Society who was rated “Not Qualified” by the American Bar Association when she was nominated by Trump to fill the vacancy and then confirmed by the Senate two weeks after Trump lost the election as part of Mitch “Leave no vacancy unfilled” McConnell’s campaign to transform the Federal Judiciarty should not be surprising. She is a “Trump Justice” and her decision was delivered not to promote the rule of law, but to promote the interests of the man who appointed her to her position. Lawrence O’Donnell was right to show the “Godfather” clip in which the Godfather tells the supplicant whose request he has granted that “a day may come when I will ask you to do a service for me.”

For Aileen Mercedes Cannon, that day was September 5, 2022.

That someone who arrives on the federal bench this way will likely show themselves to be a Trumpist political operative in a robe, rather than an objective jurist is now the reality we operate within. It is our new reality.

Nearly every political controversy in years to come will include a vital legal component, in which Republicans will find a friendly Trump judge to grant whatever preposterous request they make, injecting the courts in place after place they have little or no business meddling.

In some cases - like this one - the effect might be merely to slow things down and give the GOP time to press its advantage or avoid disaster. In other cases this will give Republicans outright victory on their policy goals or the procedures that help them win more elections.

We’re now in an era in which the courts are more political than ever.

While this suits Trump perfectly, it was not his design, and it is no accident. Trump was merely the vehicle to perform a transformation planned and executed by the Federalist Society, the wider conservative legal movement, and Mitch McConnell. It was not a plan to merely install as many conservative judges as possible, but to politicize the courts in an unprecedented way.

This is far beyond the politicization that began when Reagan’s Attorney General Ed Meese swore he would lock in the results of the Reagan Revolution by questioning judicial nominees about their personal judicial philosophies; even those judges who were nominated under those conditions had legal backgrounds they were proud of, and a sense of shame, that prevented them taking actions that sullied both the reputation of the judicial branch and their own names.

Trump’s appointees are qualitatively different from those of his Republican predecessors. Aileen Mercedes Cannon was not the only nominee judged “Not Qualified” who received Senate approval by McConnell’s stooges. Judges with no experience of being a judge were the norm in this game.

Cannon’s ruling is the latest example, but we’ve seen others before. Back in April, District Judge Kathryn Kimball Mizelle in Florida - who had never even participated in a trial before as an attorney - issued a nationwide injunction that ended the federal mask mandate on interstate travel, basing her decision on the ludicrous grounds that stopping the spread of an airborne virus by requiring masks on planes and trains was outside the purview of the Centers for Disease Control and Prevention.

Mizelle’s legal analysis was inane, but there was no requirement that it be grounded in any reasonable reading of the law. All that mattered was that she delivered the outcome Republicans wanted. Like Cannon, Mizelle was confirmed after Trump lost the election. She too was rated “Not Qualified” by the ABA, but every Republican stooge in the Senate voted to confirm her, both conservatives and alleged “moderates.”

They knew exactly what they were getting; it was just what they wanted.

The shift in GOP thinking on the judiciary from “We want conservative judges” to “We want partisan hacks” didn’t start with Trump. Before Trump was elected, Republicans decided Chief Justice John G. Roberts Jr. was a traitor to Conservatism Inc. because he didn’t strike down the Affordable Care Act on the dubious grounds Republicans had offered in their many lawsuits against it.

Republicans now operate with the basic expectation that, if you’re a Republican-appointed judge, it’s your job to nullify laws passed by Democratic Congresses and keep Democratic presidents from carrying out their agendas.

And if a former Republican president is under investigation for committing crimes, Republican judges must make sure the law treats him with a deference afforded no other suspect.

This is our future as long as Trump judges remain on the bench. They constitute one quarter of the active federal judges in the country.

In every coming election, every coming issue debate, every coming controversy, the first thing Republicans will do is prepare their lawsuits and forum shop for Trump judges who are certain to rule in their favor.

They did fail to get the courts to overturn the 2020 election, and even the six Injustices on the Supreme Court will rule against them from occasionally, but Republicans have the judiciary they wanted, one dominated by hacks whose respect for the law will almost always yield to the GOP’s partisan interests. And they’re going to use it.

However, in the specific matter at hand, the case of Donald Trump and his acts of treason and espionage and obstruction of justice, Aileen Mercedes Cannon’s decision may present the Department of Justice with a spectacular opportunity that it wouldn’t have had otherwise.

If the DOJ follows the advice of William P. Barr and every other judicial authority and appeals this crazy decision, the department will be able to write a brief explaining why the matter is so serious, a brief that will lay out why criminal charges may be necessary. A brief that will be reported on by the media covering the case. Such an appeal allows Justice Department prosecutors to speak to the country, to justify their actions, to prepare the nation for what may be coming.

The department does not have to appeal the appointment of a Special Master, which might be upheld by the Eleventh Circuit, which is almost all Trump Judges now. While the entire ruling is bizarre, they can appeal the question of standing, that Cannon was the judge making the decision. The motion should have been filed in the same court that issued the search warrant, not with Cannon. She has even pointed out herself in a footnote to her ruling that her court was not the proper place for such appeal since, in the case of Presidential Documents, the court that is assigned to deal with those issues is not in Florida, it is the Court of Appeals for the D.C. Circuit.

However, Cannon then decided that she could hear the case, and the Eleventh Circuit might see their duty as upholding hat. But the injunctive relief, stopping the investigation, is unprecedented in any other Federal (or state) criminal case ever. As Professor Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas Law School says: “the ruling is preposterous, especially the part where it blocks the government from continuing to use materials already in its possession.” This is something even the Eleventh Circuit cannot allow. If Cannon’s decision stands, it would allow the targets of investigations to disrupt law enforcement operations before a case is charged or goes to trial. Even Trump judges understand the seriousness of that.

This can be one of the fastest appeals in history since time is critical. The FBI must work fast in order to close and cap any security breach caused by the fact that so many files are now compromised. The news tonight that at least one of the documents recovered was so secret that only the President or the relevant Cabinet Member can read anyone into clearance to even look at it, since it involves information regarding the nuclear capabilities of a foreign power makes this ruling even worse.

The FBI needs to search each document for fingerprints to establish who might have handled the documents, including Trump and any other known actors. Additionally, our allies want to know what went missing and who might have what information.

With tonight’s news, the matter of the injunction against investigation is far too important and far too time-sensitive to “sit” while a special master tries to make up the law regarding an “executive privilege” that doesn’t exist.

The Justice Department’s appeal to the 11th Circuit will include a brief explaining why this matter is so serious and how many things hinge on the investigation of the security breach. The DOJ thus gets a priceless opportunity to speak publicly to the American public about why this is a “huge deal.” The explanation will also, by its very nature, describe a situation so serious no one can say it’s “like Hillary’s emails,” no one can say it’s a “storage problem” ir a matter of “paperwork.”

This matter involves a security breach that is fundamental and essential to the highest and most important levels of our national security, right now, this minute.

Such an emergency appeal will be a warning to the country, “This is bad. It’s worse than you know.”

This potentially may have more political impact than the DOJ’s brief on the issue whether to release the affidavit for the search warrant with redactions, the brief with the picture, which became a “game changer” as the country appreciated the seriousness of the investigation. Now imagine this brief - far more focused, specifically designed to relay the seriousness of Trump’s behavior, laying out the ripple effect to other programs, to spies, and that the implications of this investigation spread across the world.

The Justice Department must decide by Friday whether to appeal Cannon’s ruling. It is a decision as political as it is judicial, given the impact of what their brief may say and how it will be reported

If the DOJ does appeal, the ensuing legal fight could take longer than any document review by the special master, but it will be a fight in which Trump and his crimes are before the public every day of the fight. If the case were to reach the Supreme Court, to which Trump appointed three justices during his presidency to solidify a 6 to 3 conservative majority, which has already lost public support and standing with its Dobbs decision in June the justices might realize they would do themselves more damage by “doing their Republican duty,” a realization that might lead to a decision made in defense of themselves by following the law.

By limiting the appeal to the injunction, the DOJ can improve its chances of winning even in courts controlled by the enemy.

As I stated in a previous post, a decision by a Special Master about the presidential records will immunize the DOJ in the coming indictment of the traitor Trump.

All of this legal fight will only provide the setting and the ammunition for the political fight that must take place if Trump and the Thousand Year MAGA are to be decisively defeated, which they must be if we are to preserve our democratic constitutional republic.

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