Republicans Have Corrupted Justice
Judge Cannon goes another step too far.
The Post’s Editorial Board
The classified documents case against former president Donald Trump has been going nowhere for a long time. Judge Aileen M. Cannon of the Southern District of Florida had all but eliminated the possibility of a timely verdict even before her decision this week to dismiss the case on the theory that special counsel Jack Smith was improperly appointed. But her action this week might spell broader trouble for American justice, too.
Judge Cannon’s insistence on holding in-person hearings on nearly every arcane question the defense sent her way, no matter how outlandish, promoted delay in a case that is not nearly as complicated as she and the defense attorneys have made it seem. The prosecution against Mr. Trump for retaining privileged materials, including nuclear intelligence and details of military operations, at his private Mar-a-Lago residence is the strongest of the multiple legal cases pending against him — not least because of the way he allegedly obstructed the investigation. The former president’s strategy has been to forestall a verdict until, if he becomes president again, he can terminate the prosecution; Judge Cannon has helped.
Even so, her willingness to consider implausible statutory readings or constitutional theories was less troubling than her readiness now to adopt them. In her Monday opinion, she promulgates a point of view scholars, and indeed courts, have widely considered far-fetched: that Attorney General Merrick Garland lacks the authority to appoint and fund Mr. Smith. The special counsel, she writes, qualifies as a “principal officer,” or else the administration wouldn’t be emphasizing his independence. And the absence of an immediate supervisor means he requires approval from the Senate to serve in his role.
This contention is refuted both by context and by history. The attorney general doesn’t look over the special counsel’s shoulder, and nor should he; the point, after all, is to shelter politically sensitive investigations from, well, politics. But he does have the authority to review major steps in those investigations and to ensure they don’t breach Justice Department protocols. Attorneys general have long been assigning touchy subjects to outside actors — under Richard M. Nixon, George W. Bush and, yes, Donald Trump. Before that, presidents did the job themselves, starting with Ulysses S. Grant after the Whiskey Ring scandal.
The courts have blessed the tradition, pointing to the 19th-century statute that authorizes the attorney general to “appoint officials … to detect and prosecute crimes against the United States.” The Supreme Court cited the code in U.S. v. Nixon after Watergate; the U.S. Court of Appeals for the District of Columbia Circuit confirmed the same thinking in a case about the Iran-contra independent counsel; the D.C. Circuit said in 2019, pursuant to the appointment of Robert S. Mueller III, that “binding precedent” settled the debate. Judge Cannon, meanwhile, looked not to precedent at all. Her only reference was Justice Clarence Thomas’s recent concurring opinion in a Trump immunity case — in which no other justice joined.
Justice Thomas’s concurrence has no legal force, and it wasn’t even relevant to the case at hand. Yet it sent a signal to lower court judges, and to Judge Cannon in particular, encouraging them to throw out cases about post-presidential conduct. The Justice Department can appeal the decision to the 11th Circuit, perhaps asking for a new judge while they’re at it. Or prosecutors could refile in the District of Columbia. But if there had been any chance of overcoming previous delays in this case, there’s no chance of overcoming this one. The public will not get a speedy trial in a case of national importance.
Worse still, the ability of the Justice Department to appoint special counsels at all is apparently in play, even though the institution, for all its faults, is necessary to remove partisan tint from extraordinary investigations, particularly those that pose potential conflicts of interest for Justice officials. The alternative to Mr. Smith would be Mr. Garland, whose motivations Trump allies have assailed, probing the former president himself. It also would have been Mr. Garland, not former special counsel Robert K. Hur, scrutinizing the current president’s own mishandling of classified documents. These arrangements would have put strain on the department’s credibility. They would also, however, have aligned with many conservatives’ shared vision for the Justice Department: one that possesses no independence from the person in the Oval Office.
More corruption right in front of our eyes:
— Election Bombshell: RNC Uses Fake Electors to Crown Trump! The Republican Parties of Arizona, Georgia, Pennsylvania, Michigan, Nevada, New Mexico, and Wisconsin have sent fake electors associated with Trump’s criminal attempt to steal the 2020 election to this year’s RNC coronation. Many of these people have been criminally charged and needed to get court permission to leave the state to show up in Milwaukee in two days, again showing how the GOP is just fine with criminals in its midst.
— Voter Suppression Alert: House Republicans Pass Controversial SAVE Act! Texas Republican Congressman Chip Roy proposed legislation to make it harder to vote, requiring people to prove their citizenship over and over again whenever they want to vote; every Republican in the House voted for it. The GOP has known since the days of the Goldwater race in 1964 (when William Rehnquist was part of “Operation Eagle Eye” to harass Black and Hispanic voters) that if they can drive down the number of voters, it usually works to the benefit of Republicans. Right now in America, a state has to go to court and prove before a judge that they have justification to take away your gun, but doesn’t even have to let you know when they strip you of your right to vote. As President Biden noted a few days ago, we need to pass legislation making voting a right (like owning a gun) rather than a mere privilege.