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A NOTE FROM FRED
In 2018, Chief Justice John Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
This proved to be true following the 2020 presidential election, when judges appointed by Democratic and Republican Presidents, including Trump appointees, acted at a historic moment to reject the dozens of meritless lawsuits brought by former President Trump and his allies to overturn the election of Joe Biden as President.
Now, however, a decision by federal District Court Judge Aileen Cannon may be a harbinger of things to come that could prove Chief Justice Roberts’ claim wrong.
Judge Cannon’s decision on Monday ordered the appointment of a special master to review the more than 11,000 documents that were removed last month from Mar-a-Lago under a court-approved search warrant in order to retrieve classified, secret, and top secret documents improperly taken by Trump to his country club and home in Florida.
Until the special master completes their work, Cannon also halted the Justice Department’s review of the documents in its criminal investigation. This could slow down the investigation for months.
(This afternoon, the Justice Department announced they would move for Judge Cannon to stay the portion of her ruling enjoining the government from further review of the classified documents taken from Mar-a-Lago, while they appeal the decision.)
Last week, Cannon issued a preliminary order that she was inclined to grant Trump’s special master request. This was highly unusual in that she seemingly decided the merits of the case before the Justice Department even had a chance to respond to Trump’s lawsuit.
Cannon’s decision on Monday authorized the special master to review the documents not only for Trump’s claims of attorney-client privilege but also for his claims of executive privilege. The latter was also highly unusual, if not unprecedented. (Yesterday, a Washington Post investigation revealed that one of the documents seized at Mar-a-Lago included top secret information about a foreign government’s nuclear capabilities.)
The Cannon decision has been widely criticized. According to The Washington Post, “The sheer volume of criticism on the opinion is remarkable, as is the ideological range of voices expressing it, from Harvard constitutional scholar Laurence Tribe to former attorney general William P. Barr.”
Barr, a staunch Trump defender during his tenure as Attorney General in the Trump Administration, labeled Cannon’s decision “deeply flawed” and “wrong.”
In a particularly criticized passage of her decision, Judge Cannon found that as a former President “the stigma associated with the subject seizure is in a league of its own.” In doing so, she appeared to be giving private citizen Trump preferential treatment, violating the fundamental principle of our country that all citizens should be treated equally under the law.
In a final unusual action, Judge Cannon denied a motion to allow the filing of an amicus brief that had been submitted by a distinguished group that included former Assistant, Deputy, and Acting Attorneys General and top Justice Department officials who served in previous Republican Administrations. (The brief was prepared by co-counsels Paul, Weiss, Rifkind, Wharton & Garrison, LLP; Amb. Norman Eisen (ret.); and myself.)
The brief strongly disagreed with the decision Judge Cannon ultimately reached. She gave no reason why she would not allow it to be filed.
The federal judiciary is the last line of defense in our constitutional system and did a historic job in protecting our democracy from former President Trump’s coup attempt in 2020.
The performance of Judge Cannon, however, is ominous.
There are millions of election deniers in our country, including a substantial number of candidates running for office, who hope to set the stage for a Trump victory in 2024, regardless of the actual outcome of the election.
How many judges like Cannon are out there? That could determine whether the judiciary continues to serve as the last line of defense for our democracy.
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EDITORIAL OF THE WEEK: PASS THE ELECTORAL COUNT ACT
Congress’s First Job Right Now: Safeguarding Democracy
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TRUMPWATCH: MAR-A-LAGO
BREAKING: Justice Dept Appeals Judge’s Order For A Mar-a-Lago Special Master, via The Washington Post.
Material On Foreign Nation’s Nuclear Capabilities Seized At Trump’s Mar-a-Lago
“Some seized documents were so closely held, only the President, a Cabinet-level, or near-Cabinet level official could authorize others to know,” via The Washington Post.
A Ruling Untethered To The Law
“By appointing a special master to review the Mar-a-Lago documents, Judge Aileen Cannon gave Trump the special treatment he asked for – and undermined the values of her profession,” via The Atlantic.
The Mar-a-Lago Raid And The Trumpification Of The Judiciary, via The New Yorker.
THE JAN. 6 INSURRECTION
Jan. 6 Committee Will Dig In On The Money Behind The Riot
Rep. Adam Kinzinger (R-IL) signaled that Trump’s “post-election fundraising efforts could be a ‘missing piece’ in the investigation,” via NBC News.
Ginni Thomas Pressed Wisconsin Lawmakers To Overturn Biden’s 2020 Victory, via The Washington Post.
Election Deniers Repeatedly Visited Ga. County Office At Center Of Criminal Probe, Video Shows, via The Washington Post.
The Election Official Who Tried To Prove “Stop The Steal”
“How a group of conspiracy theorists enlisted a county clerk in Colorado to find evidence that the 2020 vote was rigged,” via The New Yorker.
Citizens Guide To The Jan. 6 Hearings, via Just Security.
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ACTIONS HAVE CONSEQUENCES
New Mexico Official First Politician Removed From Office Over Jan. 6 Attack
“This marks the first time since 1869 that a court removed an official for participating in an insurrection.”
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MORE TRUMPWATCH
In Praise Of Iron Fists: Trump Leans Into His Authoritarian Instincts, analysis via The Washington Post.
Trump Shares Barrage Of QAnon Content And Other Conspiracy Theories On His Social Media Platform, via NBC News.
Trump Returns To Rally Team MAGA, via The Atlantic.
Claims Of Voter Fraud, Old As The Republic, Still Work As Weapons For Trump, via National Public Radio.
Updated: Tracking Trump’s Ongoing Investigations, Civil Suits, And Countersuits, via CNN.
THE “CON-CON” NIGHTMARE
A Second Constitutional Convention? Some Republicans Want To Force One, via The New York Times.
A Constitutional Convention Would Be A Nightmare. And Very Revealing, opinion via The Washington Post.
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🚨 WARNING OF THE WEEK 🚨
60 Percent Of Americans Will Have An Election Denier On The Ballot This Fall
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MIDTERMS, MONEY, & MORE
Explainer: How New State Laws Could Trip Up Voters This November, via Reuters.
With Just Weeks Until Midterms, Election Deniers Are Hampering Some Election Preparations
“Some election deniers have ‘weaponized’ against us, one election official says,” via ABC News.
Private Equity And Hedge Fund Industries Pour Nearly $347.7 Million Into Midterms, via Open Secrets.
How A Record Cash Haul Vanished For Senate Republicans
“The campaign arm of Senate Republicans had collected $181.5 million by the end of July — but spent 95 percent of it. A big investment in digital, and hyperaggressive tactics, have not paid off,” via The New York Times.
The Rise Of The Debate-Dodgers
“This year’s resistance — or flat-out refusal — to debate is likely a glimpse into the future of elections,” via Politico.
A $1.6 Billion Donation Lays Bare A Broken Campaign Finance System, via The Washington Post editorial board.
Billions In “Dark Money” Is Influencing US Politics. We Need Disclosure Laws, via The Guardian.
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