Donald Trump has a friend at court. He appointed her.
U.S. District Court Judge Aileen Cannon favors the former president in the Department of Justice case about the presidential documents found in an FBI search at Mar-a-Lago, his Florida resort residence.
Former U.S. Attorney General William Barr, also a Trump appointee, has noted that it is “unprecedented for a president to take all this classified information and put it in a country club.” If so, why does the judge help Trump?
Chief Justice John Roberts has tried to assure Americans that while presidents appoint judges who share their political philosophy, the jurists are independent and non-partisan. “We do not have Obama judges or Trump judges,” he said, rebutting a comment by Trump who saw things differently.
Trump was right; Roberts’ claim simply won’t wash. The 2000 Supreme Court vote by 5-4 to make Republican George W. Bush the president over Democrat Al Gore left a lot of people believing the Court made a political, not a legal, decision. There was no judicial philosophy involved.
In this case, the judge gives Trump the breaks he seeks to derail or delay the investigation of his having kept documents, many of them secret, at his unsecured offices.
Right now, Trump faces no charges in the case. Trump, not the DOJ, gives the search big publicity. Federal agencies are conducting an investigation and have not yet determined what action, if any, should be taken, beyond recovering government documents and determining any harm to national security. But the judge now protects him in several ways.
Court nominees say they will not let their personal views influence their consideration of cases. They will “follow the law.” Just what law will a judge follow? There’s so much judge-made law available, they can choose what they will follow and ignore other applicable rulings.
To begin with, another judge in the same district court has been dealing with the FBI recovery of the presidential documents removed from Mar-a-Lago. But, when Trump made an added filing, she grabbed control of it instead of turning it over to the original judge.
Legal questions about a former president’s right to control documents are supposed to be determined by the D.C. federal district court, as Cannon acknowledged but ignored. Sharing his distrust of the FBI, she accepted Trump’s demand for a special master to screen the documents before the investigation continued.
Trump kept presidential papers, claiming they are his and frustrating Justice Department efforts to recover them. There’s a law clearly stating that most of them are government property. Cannon could have ruled that at least certain documents, especially those that had been classified, could not possibly be Trump’s property. She didn’t.
Judges can range even more widely. Under certain circumstances, a judge alone, without a jury, decides what needs to be done to put matters right and may decide differently from a narrower legal ruling. That’s called “equity.” And who decides the rules of equity? Judges, usually.
She has chosen to decide on the basis of equity, because Trump’s reputation would suffer if federal prosecutors had him indicted on the basis of documents that turned out not to be acceptable evidence. She uses a non-binding opinion of Supreme Court Justice Brett Kavanaugh, also a Trump appointee, to support her position.
She focuses on the embarrassment that a person suffers when wrongly indicted and finds that the damage would be much worse for a former president. In his filings, Trump claims he is the front-runner for the GOP nomination and the general election in 2024. He sees the case as an attempt to undermine his chances.
But the right to challenge evidence backing up an indictment comes only after the indictment, not before it. Trump has not been indicted. Because he’s a former president, he is receiving protection not available to average citizens.
These factors matter in this case, because they permeate Cannon’s decisions. In simple terms, the judge accords Trump special treatment in her court. And says so.
For the time being, Cannon has blocked the investigation. That’s just what Trump wants. His lawyers say it would take the special master three months to complete their review. That would delay the investigation and any resolution of the case beyond the mid-term elections, thus reducing their effect on Trump’s attempt to influence congressional races.
Unless the law gives a former president special rights, they enjoy no better treatment than the average citizen, which is just what they are. In this case, a judge he appointed is making unusual decisions giving Trump favorable treatment.
Perhaps we should have confidence that the process will ultimately yield the just result. But the judge’s bias appears to add to the already declining respect for the courts. This cannot be healthy for the American system of government.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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