Judge Aileen Cannon

“It’s not theirs, it’s mine.”

by

Heather Cox Richardson | Letters from an American

Heather Cox Richardson

July 6, 2024

This morning, after a day of Republicans insisting that it is political polarization to suggest that Trump is a danger to our democracy, U.S. District Judge Aileen Cannon, who was appointed by Trump in the last days of his presidency, dismissed the classified documents case against the former president. She wrote that “Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution.” 

Other federal courts have tested this argument and dismissed it, but Supreme Court justice Clarence Thomas, whose wife Ginni was part of the attempt to overturn the results of the 2020 presidential election, suggested earlier this month that it could be the basis for getting rid of Jack Smith. Cannon cited Thomas repeatedly in her decision. 

When he left office in January 2021, Trump took with him to Mar-a-Lago hundreds of pages of classified national security documents, some of which bore the highest level of classification. The National Archives and Records Administration (NARA), where by law presidential papers must be deposited, noted that many documents were missing from the materials Trump released to them and, in May 2021, emailed Trump’s lawyers to get them back. 

When his lawyers tried to push him to do as the law required, they told FBI investigators, Trump answered: “It’s not theirs, it’s mine.” Finally, in December 2021, after Trump had personally gone through the documents, a Trump representative told NARA that they had found “some records,” and in January 2022, NARA retrieved 15 boxes from Mar-a-Lago. Archivists found more than 150 documents marked classified, making up hundreds of pages of classified national security information. 

By April the Justice Department had convened a grand jury to investigate Trump’s removal of the documents. Trump’s lawyers tried to keep those documents out of the hands of the Federal Bureau of Investigation (FBI) by claiming they were covered by executive privilege, but in May 2022, NARA gave the FBI access to the records. In June 2022, Trump representative Christina Bobb certified that “a diligent search” at Mar-a-Lago had turned up nothing more and that they were returning “any and all documents” they had found. Concerned about the sheer number of documents turning up, the Department of Justice subpoenaed security video tapes, which showed people moving the documents. 

Federal officials obtained a search warrant for Mar-a-Lago. When they executed it in August 2022, they found 13 more boxes with classified documents: a total of more than 11,000 government documents and photographs. They also found 48 empty folders labeled “classified,” but they did not check a locked closet on which Trump had recently changed the lock, or a “hidden room” in Trump’s bedroom. They found that the boxes, which contained the most valuable intelligence of the United States government, had been stored haphazardly in public areas, including a ballroom stage and a bathroom. 

In November 2022, after Trump announced his presidential candidacy—an early announcement that many thought was an attempt to avoid criminal prosecution—Attorney General Merrick Garland appointed a special counsel to oversee the two federal investigations that touched on the former president, thus deliberately moving those investigations outside the department so they could not be seen as part of the presidential race.

In June 2023 a federal grand jury indicted Trump on 37 criminal counts under the Espionage Act, including scheming to conceal documents; three more charges were added the following month. Trump allegedly compromised national security documents from the Central Intelligence Agency, the Department of Defense, the National Security Agency, the National Geospatial Intelligence Agency (surveillance imagery), the National Reconnaissance Office (surveillance and maps), the Department of Energy (nuclear weapons), and the Department of State and Bureau of Intelligence and Research (diplomatic intelligence). He was a one-man wrecking ball, aimed at our national security. 

The case fell randomly to Cannon, who has appeared to be trying to delay the case since it came into her hands. Today, she threw it out altogether.

Former attorney general Eric Holder called Cannon’s dismissal “so bereft of legal reasoning as to be utterly absurd.” Legal analyst Mark Joseph Stern called it “an extreme outlier view with no basis in precedent” and noted that “Cannon’s indefensible opinion will still serve its purpose of delaying this trial indefinitely.” 

Global politics scholar Brian Klaas wrote “Trump appoints judge. Trump does something that virtually all legal experts—including Trump’s own former Attorney General—see as a clear-cut felony. Judge that Trump appointed dismisses case.” Washington Post global affairs columnist Ishaan Tharoor wrote: “if this happened in another country, the DC establishment would immediately point to the erosion of the rule of law and the independence of the judiciary.” 

Special Counsel Jack Smith has said he will appeal Cannon’s ruling.

Trump responded to the news exactly as yesterday’s Republican demands that Trump’s opponents stop calling out his lawlessness suggested he would. He posted: “As we move forward in Uniting our Nation after the horrific events on Saturday, this dismissal of the Lawless Indictment in Florida should be just the first step, followed quickly by the dismissal of ALL the Witch Hunts—the January 6th Hoax in Washington, D.C., the Manhattan D.A.’s Zombie Case, the New York A.G. Scam, Fake Claims about a woman I never met (a decades old photo in a line with her then husband does not count), and the Georgia “Perfect” Phone Call charges. The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Joe Biden’s Political Opponent, ME. Let us come together to 

END all Weaponization of our Justice System, and Make America Great Again!”

The Thomas opinion on which Cannon relied was his concurrence in the July 1, 2024, decision in Donald J. Trump v. United States. In that decision, the Supreme Court overturned the central principle of American democracy when it said that the U.S. president cannot be prosecuted for crimes committed as part of a president’s “official duties.” Cannon’s decision echoes the idea that Trump cannot be held accountable even for what is allegedly the most serious breach of our national security in our history. Indeed, MAGA Representative Matt Gaetz (R-FL) posted a picture of Cannon on social media with the heading: “Future Supreme Court Justice Cannon.” 

Legal analyst Keith Boykin listed the many excuses and arguments Trump enablers have made over the years. “He can’t be prosecuted in office,” Boykin wrote. “He can’t be impeached because the courts should decide. He’s immune from prosecution after office. He can’t be prosecuted by Biden’s DOJ because that’s ‘lawfare.’ And he can’t be prosecuted by a special counsel. We have created a dictator.”

Legal analyst Norm Eisen noted that Cannon’s decision will boost Trump on the first day of the Republican National Convention, held in Milwaukee, Wisconsin, from Monday through Thursday of this week. So will the weekend’s shooting, which has inspired MAGA Republicans to insist that all their party members must rally around Trump. 

While Trump has been the presumptive nominee for years, that anointment was contested. Around 20% of Republican primary voters, who tend to be the most loyal and fervent partisans, consistently voted for former South Carolina governor Nikki Haley rather than Trump. Those voters seemed to be concentrated in the suburbs, thus making up a constituency Trump needs to win.

On the other end of the party’s spectrum, the fringe right has been saying that Trump is too soft for them. Antisemitic white nationalist Nick Fuentes has told his followers that he and his “groypers” are fed up with Trump because they are sick of “battling the Jews in the White House, battling the neocons, battling the Israel-firsters.” 

Conspiracy theorist Alex Jones and right-wing provocateur Ivan Raiklin have speculated for months that removing Trump from the running—they speculated about assassination—would open the way for Trump’s far-right former national security advisor Michael Flynn, and appeared to be putting pressure on Trump to name Flynn as vice president. Yesterday, Raiklin posted on social media a “Trump/Flynn 2024” graphic with the legend “FAFO,” under the words “Assassination-Proof.” 

This afternoon, perhaps in hopes of avoiding an embarrassing floor fight, Trump dashed the hopes of both ends of the Republican spectrum by naming Ohio senator J.D. Vance as his vice presidential pick. Vance is 39 and was elected to the Senate in 2022 with the help of $10 million from right-wing billionaire Peter Thiel. In the short time he has been in office, he has echoed Trump’s Big Lie that the 2020 presidential race was stolen, has said that he does not believe in rape or incest exceptions for abortion bans and that people should stay in violent marriages, and has praised Project 2025. He is pro-Russia and against the North Atlantic Treaty Organization. 

It “will be interesting to see how the RNC attempts to spin Vance as a candidate of Unity,” journalist Anne Applebaum wrote. The Fox News Channel helpfully reminded viewers that Vance has, in the past, said that Trump “might be America’s Hitler,” “might be a cynical a**hole,” and is “cultural heroin,” “noxious,” and “reprehensible.” 

Still, factional differences might not matter in today’s Republican Party. This afternoon, in the hall of the RNC convention, attendees chanted, “Fight, fight, fight,” as they punched an arm in the air, in an eerie echo of Germany in the 1930s.

Letter from Joint Chiefs: “Leaders must be diligent about keeping the military separate from partisan political activity.”

by

Heather Cox Richardson | Letters from an American

HCR
Heather Cox Richardson

September 7, 2022

When President Joe Biden called out “Donald Trump and the MAGA Republicans” last Thursday as representative of “an extremism that threatens the very foundations of our republic,” he drew a clear line between those supporting the former president and those from all parties who support democracy. He quite deliberately drew a line between Trump supporters and “mainstream Republicans” who do not embrace the “extreme ideology” of their former allies.

Immediately, Trump supporters attacked the president and rushed to defend Trump, just as more news broke about his theft of classified documents and other presidential records when he left the White House. This tied the Republican Party to Trump, along with what is a stunning national security story that continues to unfold. 

Just tonight we learned that FBI agents found a document detailing the military defenses of a foreign government, including its nuclear capabilities, during last month’s search of Mar-a-Lago. What is at stake here is not simply information about the U.S., or even information about the way our leaders conceive of what is best for the U.S. What is at stake is the security of the U.S. and our democratic allies. Some of the documents they found were so highly restricted that they required special clearances on a need-to-know basis. Trump kept them in boxes at Mar-a-Lago. 

This situation is extraordinary, but yesterday, Senator Marco Rubio demonstrated his loyalty to Trump when he referred to Trump’s theft and mishandling of the documents as “a fight over storage of documents.” Rubio is the top Republican on the Senate Intelligence Committee. 

Yesterday’s decision by Judge Aileen Cannon further illustrated the strength of the MAGA Republicans and their positions in places of power. 

Cannon was nominated by Trump and confirmed after he lost the 2020 election. Yesterday she granted Trump’s request for a special master to review the government documents the FBI recovered from Mar-a-Lago on August 8. Today, Ian Millhiser at Vox explained that Cannon’s order could delay the FBI investigation by as much as years (other analysts argue that she has cut off only one avenue of investigation, so they believe it will not be that big a speedbump). The Department of Justice can appeal the decision, which Millhiser agrees with other legal analysts is “riddled with legal errors,” but an appeal would go to the 11th circuit, where Trump appointed 6 of the 11 judges who, if they wished, could further delay the case, and then agree with Cannon. The Department of Justice could then appeal to the Supreme Court: which now has a 6 to 3 Republican majority, three of whom Trump himself appointed. 

Cannon’s order appears to have been intended to send a message. Bloomberg News legal and political reporter Zoe Tillman said today that seven senior officials who served in Republican administrations, including two former governors, a former attorney general, a former acting attorney general, and a former deputy attorney general, asked to send in a “friend of the court” brief in opposition to Trump’s request. Cannon denied their request, saying the court “appreciates the movants’ willingness to participate in this matter but does not find…[it]…warranted.” 

Millhiser asked: “Why would a judge do this unless they are trying to advertise the fact that they are not open to opposing arguments? Just accept the…brief and then don’t read it if you don’t want to make a public spectacle out of not caring what anyone says.” Los Angeles Times legal affairs columnist Harry Litman said he didn’t think he’d ever seen a court reject a friend of the court brief before. 

MAGA Republicans are standing behind Trump in his determination to overturn the 2020 election. In Michigan on Friday, six people filed a suit to order Governor Gretchen Whitmer and Secretary of State Jocelyn Benson to “work together to rerun the Michigan 2020 presidential election as soon as possible.” One of those joining the suit previously handed over her township’s vote tabulator to a group trying to prove “voter fraud” in the election. 

And today, Zachary Cohen and Jason Morris of CNN reported that newly released surveillance video shows that on January 7, 2021, a Republican county official in Georgia escorted into her county’s election offices two operatives working with Trump’s attorneys to try to find voter fraud. That same day the voting systems were breached. The official, Cathy Latham, is under investigation for her role as a fake elector and has given conflicting testimony about her actions. Some of Trump’s allies in the fake election scheme seem also to have launched a multistate effort to gain access to voting machines after the 2020 election. 

Lies about the election from right-wing media convinced these MAGA Republicans of the Big Lie that the election had been stolen, but documents emerging from the Dominion Voting Systems lawsuit against the Fox News Channel are illustrating that the people feeding those lies knew they were false. Dominion has sued the media giant for defamation, saying its hosts knew the stories they told of the voting machines switching votes were false and that it has been “irreparably harmed” by the lies that will lead to more than $600 million in lost profits over the next 8 years. The document production has yielded a November 2020 email from an FNC producer insisting that it must keep host Jeanine Pirro off the air because she was spreading conspiracy theories to back Trump’s lies that the election had been stolen. 

And, today, New Mexico judge Francis J. Mathew ruled that Couy Griffin, the founder of Cowboys for Trump, must be removed from his office as Otero County commissioner for participating in the January 6 attack on the U.S. Capitol. In a lawsuit brought by New Mexico citizens, Mathew ruled that Griffin is disqualified for office under the Fourteenth Amendment, which prohibits from holding office anyone who had engaged in “insurrection or rebellion” against the country. This is the first time this clause has been enforced since 1869, and the first time a court has found the attack on the Capitol was an insurrection.

Now other Republicans are weighing in to suggest that, now that the lines have been made very clear indeed, they will stand with the Constitution if there is an attempt to take the government by force. Today, eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff published an open letter in the national security outlet War on the Rocks outlining the “principles of civilian control and best practices of civil-military relations.” The leading illustration was an image of the U.S. Constitution. 

These former military leaders noted the many factors that have created “an exceptionally challenging civil-military environment,” and reiterated that “civilian control of the military is part of the bedrock foundation of American democracy.” They noted that “[t]he military—active-duty, reserve, and National Guard—have carefully delimited roles in law enforcement [that] must be taken only insofar as they are consistent with the Constitution and relevant statutes,” and that “[m]ilitary and civilian leaders must be diligent about keeping the military separate from partisan political activity.” 

This is a calmer echo of the open letter the ten living former secretaries of defense published on January 3, 2021, in the Washington Post, which called for a peaceful transition of power after the 2020 election and seemed to warn colleagues not to back the former president’s attempts to create an uprising. They said: “Efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory. Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic.”

Perhaps most notably, in an interview with Greg Sargent of the Washington Post, published today, longtime conservative Bill Kristol said that, at least in the short term, the Republican Party cannot be saved. “And,” he offered, “if we don’t have two reasonably healthy parties, the unhealthy party has to be defeated.”

And, finally, the formula shortage has largely fallen out of the news, but the administration has not dropped the ball. Yesterday, the administration completed the twenty-second mission of Operation Fly Formula, which has now flown in more than 85 million 8-ounce bottle equivalents.