berg80
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- Oct 28, 2017
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A Ruling Untethered to the Law
One of the most dispiriting aspects of the decision yesterday by Federal District Court Judge Aileen Cannon—which granted former President Donald Trump’s request to appoint a special master to review the evidence seized from Mar-a-Lago by the FBI—is that it undermines the work of all the other judges who have tried to adhere to their oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … faithfully and impartially discharge and perform all the duties incumbent” on the office. Her ruling is untethered to the law and presents a skewed recitation of the facts. Her actions make the question “Who appointed the judge?” a sadly relevant one in evaluating a judicial opinion.
Cannon’s opinion, by contrast, is so deeply flawed that it’s hard to know where to begin a critique. Let’s start with the unequal application of the law. Although Trump wallows in feigned claims of persecution, in fact he has been privileged by the Justice Department, and now Cannon, in a manner unheard of for any other defendant. Every defendant would relish the opportunity to delay a criminal investigation by having a court enjoin the government from investigation, but that never happens. The time-honored recourse for someone aggrieved by a search is not to have an unelected judge unilaterally decide to enjoin the constitutionally delegated power of the executive branch to investigate and prosecute. The defense remedy is in a post-indictment motion to suppress evidence from a search.
Cannon addresses the departure from normal practice by inventing a new right for the former president, on the grounds that a post-indictment remedy would be insufficient for him to reclaim his good name. Leaving aside the question of whether her observation about the irreparable consequences of a delay in when he could assert a claim is factually supported, there are at least two other issues with this ruling. First, it is hard to see how her conclusion about harm would or should be cabined to Trump: Why would others under investigation not have the same claim? Is the extra protection of a special master—and the delay it entails—applicable to all public figures? Would we now have a new rule limiting investigations of government officials like Bill Clinton, as well as leaders of large corporations like Enron and Volkswagen and start-ups like Theranos? And if so, how is a rule that offers special privileges to the most advantaged members of our society consistent with providing equal justice for all? Cannon does not deal with any of this. Her ruling, in this respect, resembles the decision of former Attorney General Bill Barr to extend benefits to Roger Stone and Michael Flynn that were simultaneously denied to other defendants. The law, it seems, is simply different for Trump and his close allies.
https://www.theatlantic.com/ideas/a...annon-trump-mar-a-lago-special-master/671349/
When I first heard of the ruling I wanted to believe it was due to incompetence (not a stretch seeing as Trump appointed her), not an attempt to favor Trump. It is impossible to sustain that belief now. One former US attorney I saw being interviewed said in order to justify her ruling Cannon had to believe Trump would prevail with his EP claim. But that flies in the face of legal precedent.
The larger takeaway is more profound. While the author of the article points out the courts have done an admirable job preventing Trump's attempted abuses to date, this is a glaring exception. I fear it's a sign he and McTreason have been successful in packing the federal bench with sycophants who, like the staffers Trump chose, put loyalty to Trumpery above fidelity to the rule of law........and the country.
