MILWAUKEE—All the assembled awoke on Monday, the first day of the Republican National Convention, and found that the MAGA Fairy had left them a nice little breakfast bonbon, as the prolonged farce that was Judge Aileen Cannon’s time in the spotlight came to its utterly predictable—and utterly dismal—end down in Florida. Having spent months trying to pick one of the many reasons, and all of them preposterous, to dismiss special counsel Jack Smith’s case against the former president* in the Pool Shed Papers case, she finally settled on one, and, yes, it was preposterous. From Reuters:
The judge found that U.S. Attorney General Merrick Garland, who named Smith in 2022 to oversee investigations involving Trump, did not have the authority “to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith.” Cannon also found that Smith’s investigation has been improperly funded through a permanent and unlimited fund Congress set aside in the 1980s for independent investigations.Reaction to the ruling was swift and also predictable. The former president* called for the immediate dismissal of all the pending criminal cases against him in the interest of national unity, which is going to be the insufferable theme of the week here on the shining banks of the Menomonee. CNN, which was collecting reactions in Washington, got a beauty from Rep. Eric Swalwell of California.
“I knew this mad man would soon be back. He’s incapable of unifying peanut butter and jelly.”Good line, but it doesn’t change the fact that quid and quo danced a slow dance in Judge Cannon’s ruling.
Cannon’s ruling is the most consequential in a series of decisions she has made favoring Trump and expressing skepticism about the conduct of prosecutors. The judge previously delayed a trial indefinitely while considering a flurry of Trump legal challenges. In an unusual move, she allowed three outside lawyers, including two who sided with Trump, to argue during a court hearing focused on Trump’s challenge to Smith’s appointment. Conservative Supreme Court Justice Clarence Thomas provided a boost to Trump’s challenge to the special counsel. In an opinion agreeing with the court’s decision to grant Trump broad immunity, Thomas questioned whether Smith’s appointment was lawful, using similar arguments to those made by Trump’s lawyers.Well, at least Judge Cannon didn’t have to burden herself with too much research. This is what Justice Junket wrote in his concurrence to the equally godawful presidential immunity only a couple weeks ago.
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.”And this is what Judge Cannon ruled on Monday.
The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.However, in a fascinating footnote, Judge Cannon seemed to be working hard at the CYA element of jurisprudence. She claims that Smith didn’t give her enough legal arguments against the Appointments Clause argument that she ultimately used to punt the case. This could be interpreted as a preemptive strike in what is most likely an appeal by Smith to the 11th Circuit, a court that already has batted Judge Cannon upside the head a number of times for her handling of the case. Even if that appeal is heard, and if the appeals court takes the case away from Cannon, its ultimate resolution seems to be located on a timeline between the next Ice Age and the Twelfth of Never.
It’s time we all face a grim truth: There is no bulwark within our present constitutional structure to resist the kind of politics that will be celebrated at this convention. In just the past two weeks, the federal courts have proved to be hopeless against, if not actively supportive of, those politics. The Democratic party insists on devouring its own entrails, and the political press seems to be perfectly happy with its role in creating a martyrdom cult within which the Republicans can create a winning alternate reality. All around sunny Milwaukee, happy people in red hats are celebrating. Unity, they cry. Unity! Join us.
Or else.
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Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.
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