Yuki Iwamura/AP Photo
Former President Donald Trump arrives at Trump Tower, late Tuesday, August 9, 2022, in New York.
Last week, President Biden gave a speech in Philadelphia. There’s “no question that the Republican Party today is dominated, driven and intimidated by Donald Trump and the MAGA Republicans,” he said. Such people “do not respect the Constitution. They do not believe in the rule of law. They do not recognize the will of the people. They refuse to accept the results of a free election, and they’re working right now as I speak in state after state to give power to decide elections in America to partisans and cronies.”
The speech caused a lot of fussy pearl-clutching from mainstream reporters and an outright tantrum from, well, MAGA Republicans, who condemned the divisiveness from an American president. But developments have since confirmed Biden’s diagnosis beyond any question. To start, as FiveThirtyEight documents in detail, at least half of Americans will have a 2020 election denier on the ballot when they vote this November. But to underscore Biden’s point even more, a hack Trump-appointed judge named Aileen Cannon is abusing her legal authority to try to hamstring the FBI investigation into the former president.
Cannon is a district court judge in southern Florida, and she appointed a “special master” to review the documents the FBI seized from Mar-a-Lago on August 8, for both attorney-client privilege and executive privilege. She also blocked the agency from using the documents in its investigation until the review is complete.
As Charlie Savage explains at The New York Times, Cannon’s ruling is legally preposterous. It’s nonsensical to block FBI agents from continuing to investigate based on documents they have already seen. Cannon complains that they took numerous other documents of Trump’s, when a key piece of evidence in the case involves the fact that Trump was not storing these highly sensitive documents, which are the property of the U.S. government, appropriately. Most obvious of all, executive privilege applies to the sitting president—as Savage writes, “a court has never held that a former president can invoke the privilege to keep records from his time in office away from the executive branch itself.”
Let’s not be children about what’s going on here. The conservative legal establishment has for decades viewed the legal system as an instrument of partisan power. It produces committed ideologues to be nominated to the bench—from the Supreme Court on down—where they implement conservative policy goals, trampling over precedent, norms, and laws as necessary. Cannon is following that script. She is attempting to prevent Trump from facing any accountability for his numerous crimes; it’s as simple as that. She’s not being subtle about it, either—she said she was going to do it before she even heard the Justice Department’s arguments.
Trump has long understood the egregious unfairness of the American court system. He instinctively knew that, as a rich celebrity, you can generally get what you want if you just refuse to play by the nominal rules of the system. File lawsuit after lawsuit, motion after motion, no matter how ridiculous, and eventually some judge or another will give you most of what you want just to make you go away—a system sometimes called “clown law” online. It’s a major reason why he escaped largely unscathed after repeatedly looting his own businesses into bankruptcy.
It is increasingly clear that democracy itself will be on the ballot during the midterms.
As a former president, of course, Trump now has even greater access to clown law, both because of the ludicrous deference granted to ex-presidents, and because he appointed a huge chunk of the judiciary personally. All he has to do is get one of his hack lawsuits in front of one of his hack judges, who will rule in his favor automatically. “Donald Trump is getting something no one else ever gets in federal court [and] he’s getting it for no good reason,” Duke law professor Samuel W. Buell told Savage.
Meanwhile, it is increasingly clear that democracy itself will be on the ballot during the midterms. Believers in the Big Lie that Trump did not lose in 2020 have been nominated in many states, where they will have wide powers over election administration. Kari Lake, Doug Mastriano, and Tudor Dixon are vying to become governors in swing states Arizona, Pennsylvania, and Michigan, and all of them profess that the 2020 election was stolen. The Big Lie is not so much a false belief as a motivating myth to justify the idea that only conservatives are allowed to have political power. If Republicans win control over a critical mass of swing states, it’s a safe bet that there won’t be a real election in 2024. They will rig the process to ensure a GOP “victory,” just like they tried to do in 2020. It’s clown law, extended into the electoral realm.
Congressional Democrats, especially Senate moderates, ought to be taking this a lot more seriously than they have thus far. A House-passed bill to protect voting rights stalled in the Senate because moderate Dems wouldn’t get rid of the filibuster. Proposals to add more justices to the Supreme Court don’t even get majority support within the party, and most of the party leadership are queasy about the idea. President Biden’s rhetoric is correct, but the follow-through has not yet met the severity of the challenge.
Even Supreme Court reform is plainly inadequate. We are seeing right now how crazy it is to allow the court system to be so infested with reactionary cranks appointed by a man who attempted to overthrow the government. It’s possibly even crazier to require that voting rights protections get an impossible 60 votes in the Senate. Winning the election is a top priority, but as we saw just a couple of years ago, that’s not enough. Should Democrats manage to hang onto control of Congress in the midterms, or even if it’s just Biden acting on his own authority, protecting democracy and restoring the integrity of the courts ought to be the top priority.
