Heather Cox Richardson

Today, on the federal holiday of Labor Day, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida granted former president Trump’s request for a special master to review the nearly 11,000 documents FBI agents seized in their search of the Trump Organization’s property at Mar-a-Lago on August 8.

The special master will examine the documents, some of which have the highest classification markings, to remove personal items or those covered by attorney-client privilege or those that might be covered by executive privilege (although President Joe Biden, who holds the presidency and thus should be able to determine that privilege, has waived it). The order temporarily stops the Department of Justice from reviewing or using the materials as part of their investigation into Trump’s mishandling of classified information.

That is, a Trump-appointed judge, confirmed by the Senate on November 13, 2020, after Trump had lost the election, has stepped between the Department of Justice and the former president in the investigation of classified documents stolen from the government.

Legal analysts appear to be appalled by the poor quality of the opinion. Former U.S. acting solicitor general Neal Katyal called it “so bad it’s hard to know where to begin.” Law professor Stephen Vladeck told Charlie Savage of the New York Times that it was “an unprecedented intervention…into the middle of an ongoing federal criminal and national security investigation.” Paul Rosenzweig, a prosecutor in the independent counsel investigation of Bill Clinton, told Savage it was “a genuinely unprecedented decision” and said stopping the criminal investigation was “simply untenable.” Duke University law professor Samuel Buell added: “To any lawyer with serious federal criminal court experience…, this ruling is laughably bad…. Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he’s being persecuted, when he is being privileged.”

The judge justified her decision because she was “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

Energy and politics reporter David Roberts of Volts pointed out that this is a common pattern for MAGA Republicans. First, they spread lies and conspiracy theories, then they act based on the “appearance” that something is shady. “So this… judge says Trump deserves extraordinary, unprecedented latitude because of the ‘extraordinary circumstances’ and the ‘swirling questions about bias.’ But her fellow reactionaries were the only ones raising questions of bias! It’s a perfectly sealed feedback loop,” and one the right wing has perfected over “voter fraud.”

As political scientist Brendan Nyhan points out, bad-faith attacks on our democratic processes open the door for changing those processes.

Something else jumps out about the judge’s construction, though: it makes MAGA Republicans the only ones whose sentiments matter. This is the same construction President Andrew Johnson used to justify his plan to end Reconstruction and remove troops from the South in December 1865. He told Congress that using the army to protect new governments there “would have divided the people into the vanquishers and the vanquished, and would have envenomed hatred rather than restored affection.” Missing from Johnson’s equation were the four million Black southerners who, in fact, welcomed the injection of the weight of the federal government into the former Confederate states.

The idea that Cannon felt obliged to reassure MAGA Republicans that Trump is being treated fairly, rather than the rest of us that the rule of law is being protected, redefines the American public and American principles.

The neutrality of the law is central to democracy. But it is increasingly under question as Republican-appointed judges make decisions that disregard settled law, and Cannon’s decision will not help. She actually singles out Trump as having a different relationship to the law than the rest of us in a number of ways, but especially when she expresses concern over how his reputation could be hurt by an indictment: “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

This attack on the rule of law—the idea that the laws apply to everyone equally—has been underway since the administration of Ronald Reagan, when Attorney General Edwin Meese set out to, as he said, “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections.” Contrary to established procedures at the Department of Justice, Reagan appointees began to quiz candidates for judgeships about their views on abortion and affirmative action, to tilt the direction in which the courts would rule.

The 1982 establishment of the Federalist Society, made up of lawyers determined to roll back the legal decisions of the post–World War II era, made it easier to tilt the courts. Those lawyers stood against what they called “judicial activism,” decisions that justified the expansion of a federal government that regulated business, provided a basic social safety net, protected civil rights, and promoted infrastructure.

As Republican policies grew less popular, party leaders focused not on adjusting their policies, but on filling judgeships with judges who would rule in their favor in lawsuits. This focus was so strong by the time of Trump’s predecessor, President Barack Obama, that then–Senate majority leader Mitch McConnell (R-KY) stalled confirmations for Obama’s nominees, banking on leaving vacancies for a new president to fill. Most dramatically, of course, he refused to permit a hearing for Obama’s nominee for a Supreme Court seat in March 2016, inventing a new rule that that date was too close to the upcoming November election to allow the nomination to proceed.

This left the seat free for Trump to appoint Neil Gorsuch, who could not make it through the Senate until McConnell used the so-called “nuclear option” to get rid of the filibuster for Supreme Court appointments, which enabled him to squeak through with just 51 votes.

Trump and McConnell—who was known for saying, “Leave no vacancy behind”—made reshaping the federal judiciary their top priority. McConnell approved the new judges with vigor, keeping the Senate confirming them during the pandemic, for example, even when all other business stopped. And he continued to push through appointments—like that of Judge Cannon—even after Trump lost the election.

Philosopher Jason Stanley of Yale University, best known for his 2018 book How Fascism Works, tweeted today: “Once you have the courts you can pretty much do whatever you want.”

Cannon’s decision addresses only the criminal investigation of the former president by the Department of Justice, and it is not clear how much of a delay it will create. While that is on hold, at least temporarily, the intelligence assessment by the Office of the Director of National Intelligence will proceed without check. It is still unclear what documents are missing, and who has had unauthorized access to the information Trump took.

This breach of our national security has the potential to be catastrophic.

Trump certainly appears to think the game is not yet over. Once again today, he attacked the FBI and the DOJ and demanded the results of the 2020 election be overturned.