Judge Aileen Cannon Does Trump’s Bidding in Dismissing Mar-a-Lago Case

This week is full of reminders that Donald Trump expects and rewards obedience—from Cannon’s Florida ruling, to Trump’s VP pick of JD Vance.

This column was originally published on Law Dork.

U.S. District Judge Aileen Cannon is a Trump appointee who rules on the bench exactly how Donald Trump expects his appointees to rule: for him.

On July 15, Cannon did so by dismissing special counsel Jack Smith’s case against Trump brought in Florida that is based on his mishandling of classified documents after leaving office and subsequent efforts to obstruct the investigation into the former president’s actions.

It was the latest of several moves in multiple courthouses this month reflecting the fallout from the U.S. Supreme Court’s Trump v. United States immunity decision and a growing perception that, yes, the Court did rule that Trump is above the law.

Cannon, who took her seat on the federal bench days after the 2020 presidential election was called for Joe Biden, ruled that Smith’s appointment violated the Appointments Clause of the U.S. Constitution and, because of that, the money spent by his office also violated the Appropriations Clause.

It’s a weak-on-the-law ruling, for which Chief Justice John Roberts deserves a not insignificant amount of blame—despite his name not appearing once in her 93-page opinion.

Roberts has led the Supreme Court into an era in which precedent can selectively be ignored, eviscerated or overruled when it gets in the way of conservatives’ goals. That, in turn, has led lower court judges to feel that they have been given power to do the same—predicting, in essence, the precedents that they believe the current Court would ignore.

This is not how the law is to work. And yet, one need only glance through Cannon’s decision to see that reality at work Monday in her effort to do Trump’s bidding.

To reach her conclusion, Cannon relied heavily on Justice Clarence Thomas’ solo concurring opinion in Trump v. United States; Justice Antonin Scalia’s solo dissent in a case upholding the then-active independent counsel provision on a 7-1 vote; and work by Steven Calabresi, a co-founder of the Federalist Society known these days for his descent into ranting pro-Trump posts at the Volokh Conspiracy. Notably, Calabresi was also backing Trump’s arguments before Cannon—and in other courts—as amicus.

The opinion itself is remarkable work if for no other reason than its shifts between hubris and indecision.

Cannon freely rejected past decisions of the U.S. Supreme Court—a little case called U.S. v. Nixon—and U.S. Court of Appeals for the D.C. Circuit, in which the courts approved acts of independent (or “special”) prosecutors because those courts did not think through the matter as thoroughly as she did “in Chambers at Fort Pierce, Florida, this 15th day of July 2024.”

At the same time, she repeatedly declined to decide several matters because the issues were “muddled” or because “the Court admits of uncertainty in this regard.”

Chief Justice John Roberts has led the Supreme Court into an era in which precedent can selectively be ignored, eviscerated or overruled when it gets in the way of conservatives’ goals.

When Cannon is discussing the limited tenure of Smith’s appointment in considering whether he is a principal officer (who would need to be nominated and approved by the Senate) or inferior officer (who would not), we get this:

“The disposition of these factors is unclear, but they remain in the amalgam of considerations in Supreme Court caselaw.”

No, you don’t need to understand what that means. It means nothing.

Dig down a step deeper, however, and the reason for this is clear: Cannon ignores other courts when she thinks there is any possible argument for Trump’s claims, and she waffles to indecision when the weak arguments of Trump and friends are not necessary for her ruling.

And that comes back to Roberts: Where there is no settled law, there is no law.

Less than six months ago, Judge Karen Henderson, a George H.W. Bush appointee, joined the D.C. Circuit’s unanimous three-judge panel ruling that it was clear that former presidents were not immune from criminal prosecution. “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct,” the appeals court declared in its February decision.

Since then, Roberts said they were wrong and that lower courts should act to protect Trump—and, for now at least, all former presidents—from any prosecution relating to their “core” powers (and, presumptively, from any prosecution relating to any “official acts” at all).

In that sense, Monday’s order from Cannon, though based on another area of law, is just a continuation of the Supreme Court’s July 1 ruling in Trump v. U.S. Although Cannon had to turn to Thomas’ concurring opinion in the case to do so, Roberts is the one who opened the door.

Like clockwork, Trump then made clear the benefits of such obedience: He announced that JD Vance—the one-time Trump antagonist who, like Calabresi, has become an obsequious sycophant—is his vice presidential choice.

I am sure the news brought a smile to the Trump appointee “in Chambers at Fort Pierce, Florida.”

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