There is no question that Donald Trump took documents marked classified with him when he left the White House in January 2021. Trump argued that he did so because they had all been declassified (through some unidentified and undocumented process) and/or that he had determined that they were personal, not presidential records (a determination he didn’t have power to make). But he didn’t deny having them.
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Those excuses emerged only after the FBI conducted a search of his Mar-a-Lago home to recover the documents. Before that, Trump rejected multiple opportunities to return the material as the government had demanded. A number of boxes were returned to the National Archive, reportedly sorted by Trump himself. A subpoena demanding the return of any other documents marked as classified led to a handover in June 2022 — and an attorney for Trump signing a document attesting that no other such documents remained at his home. They did.
The indictment of Trump and his aide Walt Nauta obtained by special counsel Jack Smith included charges related both to his retention of those documents and to alleged efforts to prevent the government from learning about them. A later, superseding indictment detailed an alleged effort to block the government from seeing security footage that would show boxes of documents being moved before attorneys began searching for documents responsive to the subpoena.
In other words, the case was solid, which is why Trump’s arguments centered on rationalization, not denial. Of the various charges Trump faced, this one was often identified as the most dangerous for the former president.
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And then it got assigned to Judge Aileen M. Cannon.
Cannon is a Trump appointee, joining the District Court for the Southern District of Florida the month Trump lost his reelection bid in 2020. She had no judicial experience before doing so. In short order, though, she was tasked with adjudicating the initial collection of evidence from Mar-a-Lago, earning a rebuke from the 11th Circuit Court of Appeals for her acquiescence to arguments made by Trump’s legal team.
That she got the case again once Smith obtained an indictment was a matter of chance — a particularly lucky one for Trump. From the outset, Cannon has slow-walked the process, repeatedly granting Trump’s legal team an unusual benefit of the doubt and ensuring that the case wouldn’t go to trial before the November election. Should Trump win, it is almost certain his appointed attorney general would end the prosecution.
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On Monday, Cannon got ahead of that possibility, dismissing the case entirely.
Her reason for doing so was rooted in an argument that has been popular within Trump’s orbit for some time: The appointment of special counsel Jack Smith was illegitimate from the outset. The lengthy decision offers a careful parsing of the verbiage of the Constitution, assessing the meanings of words used in an effort to undercut the idea that Attorney General Merrick Garland had the authority to make the Smith appointment. The Washington Post’s Aaron Blake outlined this argument last month.
The more influential articulation of it, though, came from Supreme Court Justice Clarence Thomas. Thomas, joining the majority in granting American presidents sweeping immunity from prosecution for their official acts, wrote a concurring opinion in which he explicitly argued that Smith’s appointment was illegitimate. As Lawfare’s Anna Bower noted, Cannon cited Thomas’s concurrence multiple times in throwing out the classified documents case, even as she shrugged at a conclusion from the actual decision in Nixon vs. United States.
By repeatedly pointing at Thomas, Cannon made obvious that her decision carries on the ideology demonstrated in the most recent Supreme Court session.
The immunity decision most clearly articulated the court’s willingness to empower Trump, with Chief Justice John G. Roberts Jr. (who wrote the decision) bolstering the right’s argument that the novelty in the moment was Trump’s being charged, not his doing things that warranted indictment. (In his concurrence, Thomas took the same tack, writing that "f this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”)
But that decision also followed the court’s curtailing the deference government officials had long been granted in implementing the letter of the law. In Loper Bright Enterprises v. Raimondo, the Supreme Court granted more power to the courts in determining how laws should be implemented — opening up the door to more successful challenges from those affected by the laws and shifting power to the judiciary. Instead of having experts from the Fish and Wildlife Service (for example) decide what species deserved protection under a federal statute, the determinations could instead be made by judges like Cannon.
This is what the political right has wanted to see for some time — a diminution of the power of the federal bureaucracy in favor of being able to pay lots of money to lawyers to try to win a case in court. But this is also what Trump has long wanted to see: a judiciary with pockets of loyalists to whom he and his allies could appeal. The hope going into Jan. 6, 2021, was that a challenge to the electoral vote would be upheld by the one-third of Supreme Court justices appointed by Trump. The odds at the time seemed low even to his allies; perhaps in the wake of the surprising decision on immunity, they would feel more confident.
Cannon long ago lost the benefit of the doubt. Her decisions have been almost unfailingly supportive of Trump’s position, to the point that they have inspired bemusement from legal observers. The dismissal of the classified documents case met with a similar reaction and expectations that the decision would be overturned on appeal (as was her decision on the previous Mar-a-Lago issue).
What is most revealing about the Cannon decision, though, is not that Trump will not face trial before the election. She had already seen to that. What it reinforces, instead, is the way that the system of accountability that the judiciary is supposed to represent can instead serve as insulation. It was made possible by Trump’s first term in office — the Supreme Court majority, Cannon’s initial appointment — and is a preview of what another four years would look like.
Imagine a judiciary more fully stocked with people loyal to Trump’s politics, working alongside a government bureaucracy rebuilt to accommodate more political functionaries. Imagine more people, in more places of power, who see their jobs as protecting one political party or one political leader — or at least, who are willing to help figure out loopholes through which their ideological allies can wriggle.
At some point, such porousness becomes unfixable.
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Those excuses emerged only after the FBI conducted a search of his Mar-a-Lago home to recover the documents. Before that, Trump rejected multiple opportunities to return the material as the government had demanded. A number of boxes were returned to the National Archive, reportedly sorted by Trump himself. A subpoena demanding the return of any other documents marked as classified led to a handover in June 2022 — and an attorney for Trump signing a document attesting that no other such documents remained at his home. They did.
The indictment of Trump and his aide Walt Nauta obtained by special counsel Jack Smith included charges related both to his retention of those documents and to alleged efforts to prevent the government from learning about them. A later, superseding indictment detailed an alleged effort to block the government from seeing security footage that would show boxes of documents being moved before attorneys began searching for documents responsive to the subpoena.
In other words, the case was solid, which is why Trump’s arguments centered on rationalization, not denial. Of the various charges Trump faced, this one was often identified as the most dangerous for the former president.
🏛️
Follow Politics
And then it got assigned to Judge Aileen M. Cannon.
Cannon is a Trump appointee, joining the District Court for the Southern District of Florida the month Trump lost his reelection bid in 2020. She had no judicial experience before doing so. In short order, though, she was tasked with adjudicating the initial collection of evidence from Mar-a-Lago, earning a rebuke from the 11th Circuit Court of Appeals for her acquiescence to arguments made by Trump’s legal team.
That she got the case again once Smith obtained an indictment was a matter of chance — a particularly lucky one for Trump. From the outset, Cannon has slow-walked the process, repeatedly granting Trump’s legal team an unusual benefit of the doubt and ensuring that the case wouldn’t go to trial before the November election. Should Trump win, it is almost certain his appointed attorney general would end the prosecution.
ADVERTISING
On Monday, Cannon got ahead of that possibility, dismissing the case entirely.
Her reason for doing so was rooted in an argument that has been popular within Trump’s orbit for some time: The appointment of special counsel Jack Smith was illegitimate from the outset. The lengthy decision offers a careful parsing of the verbiage of the Constitution, assessing the meanings of words used in an effort to undercut the idea that Attorney General Merrick Garland had the authority to make the Smith appointment. The Washington Post’s Aaron Blake outlined this argument last month.
The more influential articulation of it, though, came from Supreme Court Justice Clarence Thomas. Thomas, joining the majority in granting American presidents sweeping immunity from prosecution for their official acts, wrote a concurring opinion in which he explicitly argued that Smith’s appointment was illegitimate. As Lawfare’s Anna Bower noted, Cannon cited Thomas’s concurrence multiple times in throwing out the classified documents case, even as she shrugged at a conclusion from the actual decision in Nixon vs. United States.
By repeatedly pointing at Thomas, Cannon made obvious that her decision carries on the ideology demonstrated in the most recent Supreme Court session.
The immunity decision most clearly articulated the court’s willingness to empower Trump, with Chief Justice John G. Roberts Jr. (who wrote the decision) bolstering the right’s argument that the novelty in the moment was Trump’s being charged, not his doing things that warranted indictment. (In his concurrence, Thomas took the same tack, writing that "f this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”)
But that decision also followed the court’s curtailing the deference government officials had long been granted in implementing the letter of the law. In Loper Bright Enterprises v. Raimondo, the Supreme Court granted more power to the courts in determining how laws should be implemented — opening up the door to more successful challenges from those affected by the laws and shifting power to the judiciary. Instead of having experts from the Fish and Wildlife Service (for example) decide what species deserved protection under a federal statute, the determinations could instead be made by judges like Cannon.
This is what the political right has wanted to see for some time — a diminution of the power of the federal bureaucracy in favor of being able to pay lots of money to lawyers to try to win a case in court. But this is also what Trump has long wanted to see: a judiciary with pockets of loyalists to whom he and his allies could appeal. The hope going into Jan. 6, 2021, was that a challenge to the electoral vote would be upheld by the one-third of Supreme Court justices appointed by Trump. The odds at the time seemed low even to his allies; perhaps in the wake of the surprising decision on immunity, they would feel more confident.
Cannon long ago lost the benefit of the doubt. Her decisions have been almost unfailingly supportive of Trump’s position, to the point that they have inspired bemusement from legal observers. The dismissal of the classified documents case met with a similar reaction and expectations that the decision would be overturned on appeal (as was her decision on the previous Mar-a-Lago issue).
What is most revealing about the Cannon decision, though, is not that Trump will not face trial before the election. She had already seen to that. What it reinforces, instead, is the way that the system of accountability that the judiciary is supposed to represent can instead serve as insulation. It was made possible by Trump’s first term in office — the Supreme Court majority, Cannon’s initial appointment — and is a preview of what another four years would look like.
Imagine a judiciary more fully stocked with people loyal to Trump’s politics, working alongside a government bureaucracy rebuilt to accommodate more political functionaries. Imagine more people, in more places of power, who see their jobs as protecting one political party or one political leader — or at least, who are willing to help figure out loopholes through which their ideological allies can wriggle.
At some point, such porousness becomes unfixable.
