On Tuesday, July 16, 2024, Norman Eisen, co-founder and a board member of State Democracy Defenders Action, E. Danya Perry, former federal and state prosecutor, and Joshua Kolb, attorney at Perry Law, published an article on MSNBC criticizing Judge Aileen Cannon’s recent decision to dismiss the criminal case against former President Donald Trump regarding the classified documents found at Mar-a-Lago.
The article argued that Judge Cannon’s decision demonstrated the ‘MAGAfication’ of the judiciary, with judges aligning themselves with Trump and moving towards lawlessness. Eisen, Perry, and Kolb asserted that Judge Cannon’s handling of the case from the outset showed clear bias in favor of Trump and that her latest ruling dismissing the criminal case entirely was a dramatic departure from legal precedent.
The article reviewed Judge Cannon’s previous controversial decision earlier this year to appoint a special master to review documents seized in the search of Mar-a-Lago, which was overturned by the 11th Circuit Court of Appeals who found the intervention into the criminal investigation to be unprecedented and without basis.
Eisen, Perry, and Kolb then turned to Judge Cannon’s recent decision, arguing it embraced a legal theory that had never been accepted by any court before. They stated Judge Cannon found that the appointment of special counsel Jack Smith to take over the investigation was unlawful under the Appointments Clause of the Constitution and that the appropriation of funds for the special counsel was similarly improper.
However, the article asserted this interpretation ignored both Supreme Court precedent from 1974 that had upheld the appointment of the Watergate special prosecutor, as well as the plain text of the federal statutes that authorize such appointments. The article argued every other court for 50 years had agreed with this precedent, including a unanimous ruling by the D.C. Circuit Court of Appeals just 5 years ago that had upheld Robert Mueller’s appointment.
Despite this clear and long-standing precedent, the article stated Judge Cannon had discarded it and instead concluded the appointment statutes did not actually authorize the attorney general to appoint a special counsel, going against the statutes’ plain meaning. Eisen, Perry, and Kolb characterized this as “shameless judicial activism with no other basis than to immunize Trump from accountability.”
Looking ahead, the article noted special counsel Jack Smith planned to promptly appeal the ruling to the 11th Circuit. It argued another reversal was warranted given Judge Cannon’s dramatic departure from precedent previously. However, the article also posited Smith could seek Judge Cannon’s removal from the case due to the appearance of lack of impartiality.
In conclusion, the article warned that the recent immunity ruling from the Supreme Court had shifted norms of lawless judging and that while the Court may reject Judge Cannon’s ruling, the Court itself had become unmoored from legal principles like stare decisis in recent terms. It framed the ongoing politicization of the judiciary as a serious threat to the American experiment.
Source: MSNBC
