Hat Tip to Charles P. Pierce who has pointed to even more outrageous actions by Judge Aileen Cannon to protect Donald Trump.
If you ever wanted to know what the legal version of "LALALA, I CAN'T HEAR YOU" looks like.
The latest act in the foregone conclusion that is ongoing in the courtroom of U.S. District Judge Aileen Cannon down in Florida has once again smacked the gobs of actual legal minds in the general direction of Belize. From Law and Crime:
The federal judge who issued an unusual Labor Day ruling appointing a special master to review thousands of files seized from the 45th president’s Mar-a-Lago estate issued a brief order on Tuesday refusing to allow several onetime GOP officials from filing an amicus brief in opposition to the special master appointment. In late August, several anti-Donald Trump former officials who served under Republican administrations moved to submit a “friend of the court” document that would help U.S. District Judge Aileen M. Cannon sort through the various legal issues at stake in the unprecedented criminal inquiry into the former U.S. head of state.
Cannon, in a paperless order with one sentence of explanation, dismissed the need for the ex-federal and state officials’ thoughts on the matter. “Upon review of the Motion, the Court appreciates the movants’ willingness to participate in this matter but does not find the proposed appointment of amici curiae to be warranted,” the judge wrote. Additionally, six other attorneys sought leave from the court in pro hac vice motions to formally take part in the case as the counsels-of-record for the seven anti-Trump prospective amici. The Trump-appointed district judge denied those efforts as well.
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The article at Law and Crime is here.
The would-be-amici here were former federal prosecutors Donald B. Ayer, Gregory A. Brower, John J. Farmer Jr., Stuart M. Gerson, Peter D. Keisler, William F. Weld, and twice-elected former New Jersey governor Christine Todd Whitman, a former Republican who is now technically a member of Andrew Yang’s centrist Forward Party.
Describing themselves, the example amicus brief filed last month says “all served in Republican administrations and collectively have decades of experience prosecuting cases involving sensitive materials or advising on matters regarding the proper scope of executive power and executive privilege.” The filing goes on to say that each has relevant expertise including “substantial personal experience with the structure and process of law enforcement investigations, including investigations involving public officials.”
In their proposed brief, the lawyers and Whitman argued that there was “no legal basis” to appoint a special master in the Trump case and, even if there was, that Trump had no basis to claim executive privilege over the documents seized from his residence by the FBI.
To put a little extra frosting on the cake...
...The filing goes on to say that appointing a special master “would be a waste of time” because Trump’s executive privilege claims are “manifestly frivolous,” citing “[c]ontrolling legal precedent.”
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Cannon essentially told them to get lost. As Pierce puts it:
...Nothing could better illustrate what a thoroughgoing bag job is being fashioned in that courtroom than this petty, childish use of judicial power. Judges routinely accept amicus briefs. Occasionally they even read them, although they are under no compulsion to do so. Instead, Cannon went out of her way to make sure the arguments against her position—arguments presented by respected Republican legal experts, as well as Christie Todd Whitman, a former governor and member of the Cabinet in a Republican administration—would not sully the official record of whatever this proceeding is supposed to be. If you read the brief, you will understand why. The spurned amici tee up Judge Cannon good and proper.
...The alacrity with which she rejected it gives away the entire game. She doesn’t want even a hint in the official record that she is going out of her way to help the former president* who appointed her after he’d already lost the election. We’re all going to have to figure that out on our own, I guess. Luckily, it isn’t hard at all.
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It’s no secret that the Republican Party via the Federalist Society has been working to fill the judiciary with judges who are A) conservative ideologues and B) relatively young so they will be around for a long time, given that these are lifetime appointments. They’ve been doing this so long, it’s effectively been normalized as something conservatives are allowed to do. Heaven help Democrats if they nominate someone “too far left” to the courts.
The NY Times demonstrates just how ‘normal’ this has become. In an analysis of how the Department of Justice is being challenged to find a way to appeal Cannon’s dictat, they toss in this bombshell:
...Over the past several days, senior officials at the department have been huddling to game out options. They range from the relatively safe step of filing a motion with Judge Cannon, who was appointed as a federal judge in Florida by Mr. Trump, to reconsider all or part of her ruling; to requesting that the court limit the time and scope of the special master’s review; to the riskier move of appealing the ruling up to the 11th Circuit Court in Atlanta, which is stocked with no fewer than six Trump appointees.
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The Times implies that that court will rule along partisan lines, without batting an eye. So much for the rule of law.
The Republican Party knows it is trouble. It represents a shrinking share of the voters (although it has the super-rich base locked up — or is that vice versa?) That’s why the Party is pushing the Big Lie so hard, so they can claim elections they lose were rigged, and push through laws allowing them to overturn results they don’t like.
That goes hand in hand with their long-running effort to pack the judiciary with partisan hacks. What they can’t get through legislatures or block from the will of the voters, they can use their courts to get what they want — and those judges will remain in place even if Republicans happen to still lose elections despite their best efforts.
Congratulations Judge Aileen Cannon. As if the Trump Supreme Court wasn’t enough, you are now the poster child for what a completely partisan judiciary looks like. Your place in history is assured.
When the history of the end of the American republic is written, I suspect discerning historians will not spend as much time on the rise of El Caudillo del Mar-A-Lago as they will on the slow hollowing out of the republic’s foundations by a guy named Leonard Leo. He is now one small step from making permanent gerrymandered red-state legislatures and, through that, guaranteeing that no Democratic candidate in those places can be elected to the state or national legislatures ever again.
Next fall, the carefully constructed Republican majority on the Supreme Court—at least three members of which owe their jobs to Leo’s lobbying—will consider the case of Moore v. Harper, a case arising from the comically gerrymandered electoral maps drawn up last year by the Republican-majority state legislature in North Carolina. Back in February, the state’s supreme court threw out the maps. (The issue went to state courts because, in its absurd ruling in Rucho v. Common Cause, the U.S. Supreme Court took the federal courts out of the game in cases involving partisan gerrymandering.) Undaunted, the state legislature sent back another modern art masterpiece, and the state supremes responded by appointing a special master to oversee the process. Which prompted Republican legislators to lodge the suit that now has made it to the Nine Wise Souls in Washington.
This is where Leonard Leo re-enters our tale, on behalf of a fringe interpretation of the Elections Clause of the Constitution, a theory that—until Leo and the North Carolina legislature decided to wrap themselves in it—was looked upon by constitutional lawyers the way archaeologists look at the theory that alien visitors from Nibiru built the pyramids.
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Leo just got handed $1.6 billion by Barre Seid to further his work at the Federalist Society to install partisan moles like Cannon in the Judiciary all the way up to the Supreme Court. Regarding the exclusion of Federal Courts from ruling on gerrymandering (Rucho), Leo is now working to do the same with state courts to prevent them from ruling on elections, under the “Independent State Legislature” theory.
The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.
Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.
Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.
emphasis added
In other words, state legislatures would exercise total control over the way elections are administered, tallied, and certified under this theory, with no recourse to the courts or any other legal relief in case of dispute.
To put it another way, this is Republicans and the dark money behind them playing CalvinBall with the law. They push whatever legal theory of the moment that will give them what they want. Remember the Unitary Executive Theory?
Pierce gives Sheldon Whitehouse the closing word on this:
Nobody has dogged the corruption of the federal courts by the money-power more relentlessly than Sen. Sheldon Whitehouse, Democrat of Rhode Island. Whitehouse has pointed to Leo as the keeper of the dark money vault that has financed the takeover of the federal judiciary, which seems poised to validate permanent Republican majorities in several states. When a single donor, reclusive wingnut sugar-daddy Barre Seid, gifted Leo’s organization with $1.6 billion, Whitehouse told Joy Reid on MSNBC:
They want a Supreme Court that will give them what Congress will not give them. Even when Republicans control Congress, there are some things that even elected Republicans won’t do — like taking away abortion rights, like making dark money the law of the land. These are the things that they count on an unelected, but captured, Supreme Court to do, and they’ve spent $580 million to capture the Court.
We’ve said this before: These people are coming for it all.
It’s well worth the signup to get access to Pierce at Esquire. In a sane world, The NY Times would dump Douthat and Stephens to give Pierce a slot.
One More Thing: If you haven’t seen the Frontline report “Lies, Politics, and Democracy” make time to do so soonest. It lays out in chilling detail just how far gone the Republican Party is these days.