I’m fascinated, but not surprised, by the liberals’ reaction to Judge Cannon’s order appointing a special master in the Department of Justice’s investigation of Donald Trump for possessing classified documents at Mar-a-Lago. To me, that reaction is over-the-top and in some cases deranged.
To be clear, I don’t think Trump’s actions in this regard are defensible. And while I lack the expertise to take a firm position on the Judge Cannon’s order, I’m persuaded by reading Andy McCarthy and talking to Bill Otis that her ruling very likely was erroneous.
But judges make erroneous rulings all the time. And as far as I can tell, this erroneous ruling carries no dire consequences.
Yes, it will slow down the DOJ’s rush to indict Trump. But it won’t stop an indictment if, as seems to be the case, that’s what the DOJ wants to do.
And why should DOJ be in such a hurry to do something as unprecedented and game changing as indicting a former president and the current leader (to the extent there is one) of the opposition party? Does anyone doubt that if Trump is indicted some of his successors will get the same treatment whether they deserve it or not?
It might be argued that involving a special master to review highly sensitive material jeopardizes our national security. But the special master apparently has top clearance and is highly regarded by both sides to this dispute. It’s difficult to imagine anything other than hypothetical harm stemming form his access to classified material.
Nonetheless Larry Tribe compares Judge Cannon’s ruling to the Supreme Court’s decisions in Dred Scott and Korematsu (the case that upheld sending Japanese-Americans to camps during World War II). And Norman Ornstein accuses her of “obstruction of justice.”
If this ruling were the modern equivalent of Dred Scott or Korematsu, surely the DOJ would appeal it in full. I think the Department would have a moral obligation to do so. But the DOJ's appeal is limited to only certain aspects of Judge Cannon’s order.
I’m all for robust criticism of judicial rulings. And I have nothing against pointing out which president nominated a judge whose ruling one disagrees with — which the left and the media are doing relentlessly in the case of Judge Cannon.
Of course, when Donald Trump did this sort of thing for Obama-appointed judges, he was accused of throwing the legitimacy of the judiciary into question and thereby undermining the rule of law. Yet, E.J. Dionne does that explicitly in this column.
Dionne accuses Cannon of “delivering the goods for her patron.” One might expect such an accusation to be supported by a cogent legal analysis of the decision the judge delivered. But Dionne supplies none. The best he can do is intone that “no one is above the law.”
It’s true that a president isn’t above the law. But it’s also true, as Dionne must know, that the law for presidents isn’t the same as the law for everyone else. Presidents have the power to declassify documents (an issue in this case is whether Trump did that for the documents in question).
In addition, the doctrine of executive privilege provides protections for presidential communications that do not extend to the rest of us (an issue in this case is the extent, if any, to which that doctrine applies to particular communications). As Jonathan Turley says, it is not “unprecedented” for a court to conduct in camera reviews of seized material for purposes like assessing privilege, and special masters are sometimes used to aid judges in such functions.
Robust criticism of judicial decisions is one thing. Accusing a judge of doing the bidding of “her patron,” of obstructing justice, or, even worse, of issuing a decision comparable to Dred Scott, goes too far. Words like these might easily incite violence against the judge. Certainly, that’s what the left would be saying if such words were ever uttered against a liberal judge.
The left has also attacked Judge Cannon as being unqualified for the federal bench, quite apart from her latest ruling. Russ Feingold was once on the Senate Judiciary Committee. Fortunately the voters of Wisconsin voted him out years ago and he’s now in charge of the American Constitution Society, the left’s lame answer to the Federalist Society.
Feingold claims that nominees like Cannon show an “overwhelming preference” by Trump for individuals lacking the experience “previously considered necessary to sit on the bench.” As applied to Cannon, this is rubbish.
Cannon was a law clerk for appeals court judge Steven Colloton, who was on Trump’s list of potential Supreme Court picks. Then, she was an associate at Gibson, Dunn & Crutcher, one of the top law firms in the country.
After that, beginning in 2013, she served as a prosecutor in the U.S. attorney’s office in South Florida where she handled major crimes, including drug, firearm, and immigration cases. She did trial work at first, and then appellate advocacy.
The Washington Post quotes a veteran defense lawyer who went up against her as saying:
She was coming in against an old hand with a tremendously complicated record in an important case, but she seemed to handle it with ease. She’s quick, talented and bright. There’s no getting around it. She’s very effective.
So — law clerk for a top federal judge, associate at a top law firm, and effective, talented prosecutor. These are exactly the kind of qualifications presidents traditionally look for in filling district court positions.
Compare them to the qualifications of Ketanji Brown Jackson when she was first nominated for the bench at about the same age as Cannon. Like Cannon, Jackson had a prestigious clerkship (on the U.S. Supreme Court) and a few years of experience as a law firm associate (I’m told that at one of her firms, she was considered incompetent).
Like Cannon, she had argued appeals (in her case as a public defender). She had also worked for the U.S. Sentencing Commission. However, as far as I can tell, she had little or no trial experience.
If anything, Cannon’s qualifications as a trial judge exceed those of Jackson at the time she was nominated to be one. Yet, I’m certain that Russ Feingold, who was on the Judiciary Committee back then, did not consider Jackson a substandard nominee.
Issuing an erroneous ruling is no sin. But for the left, issuing one it doesn’t like is. And issuing one sought by Donald Trump, even if it’s not very consequential, is worse than a sin. It’s an atrocity.
Do you see now why I called some of the attacks on Judge Cannon deranged?
NOTE: The sixth paragraph of this post differs from the original version.