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Judge Aileen Cannon's latest gift to Donald Trump
Once
again, the U.S. Court of Appeals for the Eleventh Circuit disagreed with her
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Earlier this week, one of Trump’s most avid political loyalists, U.S.
District Judge Aileen Cannon, issued an order (excerpted above) temporarily
blocking the release of Special Counsel Jack Smith’s final report in an attempt
“to preserve the status quo.” In two volumes, the report is expected to
describe in detail Smith’s prosecution of Trump for the classified documents
that he took the last time he was in office as well as the criminal charges
against him for his role in the bloody coup attempt on January 6, 2021.
Cannon blocked both volumes of the report—even though the
case she oversaw (notice past tense) in Florida has nothing whatsoever to do
with the January 6th case and thus she has no constitutional or legal authority
to do anything regarding that matter.
On Thursday evening, the U.S. Court of Appeals for the Eleventh
Circuit—which had an identical request
pending before it—refused to halt the release of the
report. Trump will likely appeal to the U.S. Supreme Court.
The volume that does relate to the case she dismissed is vital for the
history books for one reason: it would
shed light on what damage was actually done to national security by
Trump when he took classified documents from the White House and stored them
his personal residence, refusing to return them when the FBI repeatedly asked
for them back. Some of the folders found during the execution of a warrant on
Mar-a-Lago were empty.
So many questions remain unanswered: Who has the contents
of the empty folders? Is it a nation, person, or corporation aligned with—or
possibly adverse to—American interests? Does Trump know whether people without
security clearances saw the classified documents? Is America compromised as a
result?
The report might not answer any of these. But
one thing we do know: Smith’s report contains information that Trump does not
want the public to see.
In a brief filed in the U.S. Court of Appeals
for the Eleventh Circuit, his lawyers wrote that “[t]he report is nothing less
than another attempted political hit job whose sole purpose is to disrupt the
presidential transition and undermine President Trump's exercise of executive
power,” and that it “goes into more detail about the alleged crimes President
Trump and others supposedly committed and involves evidence that was never
released to the public . . . .”
Cannon issued her order after Trump’s co-defendants in the Mar-a-Lago
case (Waltine Nauta and Carlos De Oliveria) filed an emergency motion to stop
Smith from making his report public. As I wrote in The
Bulwark, Judge Aileen Cannon lacks the jurisdiction—or the legal
power—to decide whether the report should be released to
the public, as she had already dismissed the case and an appeal is pending in
the Eleventh Circuit. In general, only one court has the power over a case at a
time, for good reason: It avoids duplicative and possibly inconsistent rulings.
The Eleventh Circuit—not Cannon—is in charge now.
Cannon didn’t seem to care.
What’s the background of the Mar-a-Lago case?
This case arose after Trump left the presidency and took boxes of
documents with him, many of which were classified. He was subpoenaed on May 11, 2022, and ordered to
give back all classified documents that were in his possession. Trump merely
gave a “small fraction” of them back. The government then obtained a search
warrant and executed it at his Mar-a-Lago residence in Florida in August of
2022. The government continued to find classified documents at this residence
through December 2022.
The co-defendants, Nauta and De Oliveria, were seen on surveillance cameras moving boxes of
classified records around the residence, presumably at Trump’s orders. This
smacked of obstruction of justice.
The charges in the indictment fall into three categories.
Those categories are:
• willful retention of documents related to the national
defense in violation of the Espionage Act (18 U.S.C. § 793(e));
• obstruction-based charges, including destruction,
alteration, or falsification of records in federal investigations (18 U.S.C. §
1519), witness tampering (18 U.S.C. § 1512), and conspiracy to violate the
witness tampering statute (18 U.S.C. § 1512(k)); and
• false statement offenses (18 U.S.C. § 1001).
The indictment also includes 18 U.S.C. § 2 in several of
the counts; that provision specifies, among other things, that whoever “commits
an offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal.”
The trial date was initially set for May 20, 2024, but
Judge Cannon delayed it over and over again without any reasonable explanation.
This past July, she dismissed the entire case on the grounds that Special
Counsel Jack Smith’s appointment was unconstitutional, invalidating the entire
prosecution. The argument is silly for many reasons, including that it would
invalidate all Special Counsels, including the two who investigated the Biden
family (President Joe Biden and his son, Hunter Biden).
This came on the heels of the Supreme Court’s decision in Trump v. U.S., which, of course, created immunity for presidents who committed crimes using their official power. As I wrote on this page, Justice Clarence Thomas had laid the groundwork for Cannon in his concurring opinion in Trump v. U.S. by suggesting that the prosecutions of Trump were invalid because Jack Smith’s appointment as Special Counsel was unconstitutional.
Cannon followed Thomas’ logic and held that the general statutes that
allowed Attorney General Merrick Garland and his predecessors to hire
prosecutors were insufficient to hire Jack Smith as an inferior officer. She
also reasoned that Jack Smith’s paycheck violates a clause in Article I,
the Appropriations Clause. Cannon held that Congress needed to expressly authorize a prosecutor like Smith for
him to receive funds from the Treasury. The dismissal of the case was appealed
and now sits before the Court of Appeals for the Eleventh Circuit.
Did Trump’s lawyers file anything to trigger Cannon’s stay
order?
Todd Blanche, Trump’s nomination for deputy attorney general, and Emily Bove (who assisted Blanche in an unsuccessful attempt
to defend Trump in his New York hush money case) filed a motion that sought
Cannon’s permission for Trump to participate as an amicus in his co-defendants’
request for a stay of Smith’s report. The two questionably refer to Jack Smith
as "a “private citizen, and so-called Special Counsel,” who lacks
“basis…to be spending tax dollars to interfere with the Presidential transition
process by making false and presidential claims about President Trump.” To
justify a stay, they cite her own order dismissing the indictment on the
grounds that Jack Smith’s appointment was unconstitutional. If you are
confused, you are not alone; this is extremely circular and illogical
reasoning.
What was Judge Cannon’s reasoning for preventing the
release of Jack Smith’s final report?
Judge Cannon has always had the same mindset: She first and
foremost supports Donald Trump, which goes against her duty to serve the United
States Constitution and its rule of law. If she can prevent the report from
coming out before January 20th, then it will go to the basement of the
Department of Justice—or worse, be destroyed at Trump’s direction—and never see
the light of day.
And because it will be within Trump’s “official” power to
direct the DOJ to do or not do certain things, the Supreme Court majority’s
immunity ruling would protect Trump from being charged with obstruction of
justice after he leaves office.
Does Judge Cannon have the authority to prevent this report
from coming out?
As I mentioned, the case was simultaneously on appeal
before the Court of Appeals for the Eleventh Circuit (essentially Cannon’s
immediate boss), which refused the defendants’ request on Thursday night.
The fact that the Eleventh Circuit already had the case meant that Cannon had no clear jurisdiction to issue her contrary ruling in the first place.
There are exceptions to the general rule that jurisdiction gets transferred to an appeals court once an appeal is filed. However, Judge Cannon did not cite to any of that authority. She did acknowledge that the co-defendants had filed an identical motion in the Eleventh Circuit but that was the extent of it. Cannon’s intervention was nothing more than an obvious message of loyalty to Trump.
Cannon also basically ignored the Justice Department regulations governing the position of
special counsel. These rules state that the attorney general, not a judge, can
decide whether any portion of the report should be made public. This is a
separate question from whether Smith was properly appointed, which was the basis
for her dismissal of the indictment. Her lack of explanation suggests a lack of
concern for protecting the separation of powers.
What could be done to counter Judge Cannon’s efforts?
Now that the Eleventh Circuit has sided with the Department of Justice and denied the request to block the release of the reports, we will likely see an appeal to the Supreme Court on this matter (and, of course, Trump’s loyalist majority). At that point, it would be impossible to get a final answer before he is sworn in on January 20th. This would put the Supreme Court in a difficult position. Should it later allow publication of the report, Trump, as president, could ignore its ruling (as the president is the attorney general’s boss).
This leads us to the second possibility, which involves the current
president, President Joe Biden. As the boss of Merrick Garland (who, per
regulations, must receive the special counsel’s report), Biden
could order the release of the report himself. Cannon
would then lose any power over the matter, as the information would be public,
and Biden’s move would fall into the category of “core” official powers, which
would make him immune from any legal accountability under the ruling from Trump
v. U.S.
On Wednesday, Smith informed Congress in a letter that he intends to make the first volume of the report, which involves Trump's efforts to subvert the 2020 election, available to the public once he is “permitted to do so” by the courts. As for the second volume, Merrick Garland said he would wait to release it until the co-defendant’s proceedings wrapped up “to avoid any risk of prejudice."
At the end of the day, Jack Smith and Merrick
Garland should be looking for any and every avenue that
would allow them to publish the report(s) as
quickly as possible. And to protect Smith and Garland from any possible revenge prosecution
ordered by Trump, President Biden should pardon both of
them preemptively.
What’s the takeaway?
With just days left before Trump takes back the Oval
Office, the public deserves to know exactly what to expect upon his return.
Otherwise, all the evidence gathered in this classified documents case will be
withheld from American citizens and the annals of history.
Also: To anyone who is in the Los Angeles area or who has
loved ones there, my thoughts and prayers are with you all.
Follow the facts,
KW
