In the days since Judge Aileen Cannon issued her inexplicable 93-page dismissal of the classified-documents case against Donald Trump, I’ve been coming back to something JD Vance said on a podcast in 2021.
Mr. Vance, the Ohio senator and now Mr. Trump’s running mate, predicted on the podcast that the former president, who had been recently disgraced by his insurrectionary attempt to overturn the 2020 election, would nevertheless run again in 2024. Should Mr. Trump win, Mr. Vance said, he had some advice: “Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.” And if the courts ruled against him? No problem, Mr. Vance said: Just blow them off.
“We are in a late republican period,” he added, alluding to weakness in the ancient Roman Republic. “If we’re going to push back against it, we have to get pretty wild, and pretty far out there, and go in directions that a lot of conservatives right now are uncomfortable with.”
His interviewer, Jack Murphy, prominent in the right-wing pro-masculinity world, agreed and said, “Among some of my circle, the phrase ‘extra-constitutional’ has come up quite a bit.” Mr. Murphy said it was necessary “to become a little more robust in our behavior” in order to “refound the country,” and Mr. Vance responded, “That’s exactly right.”
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This exchange — with its disregard for the rule of law, its mockery of expertise and its elevation of outcome over process — gets to the heart of what is so alarming about the dismissal of the documents case, which had been widely regarded as the most airtight of the prosecutions of Mr. Trump. (As a reminder: He removed large quantities of classified national security documents from the White House without authorization, he refused to return them when asked politely, and he lied to the officials who tried to collect them.)
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Judge Cannon’s rationale for tossing the case was that Jack Smith, the special prosecutor who brought the charges, was not validly appointed to his post because no federal law authorizes the appointment of someone from outside the Justice Department to perform that task. “Mr. Smith is a private citizen exercising the full power of a United States attorney, and with very little oversight or supervision,” she wrote.
To support this argument, she relied heavily on a concurrence in Trump v. United States, a two-week old Supreme Court ruling that, without an ounce of constitutional support, effectively immunized Mr. Trump and future presidents from criminal prosecution. The concurrence, by Justice Clarence Thomas, questioned the constitutionality of Mr. Smith’s appointment — an issue that was not even before the court in that case. “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Justice Thomas wrote.
As a matter of law and fact, this is not merely wrong, it is flagrantly, embarrassingly wrong. Federal law explicitly authorizes the attorney general to appoint prosecutors like Mr. Smith, which makes him not a private citizen but an official of the Justice Department, subject to the same oversight as every other prosecutor. It is not a close or complicated legal question.
The Supreme Court itself blessed the arrangement in a 1974 case that unanimously upheld a subpoena issued to President Richard Nixon by Leon Jaworski, the special counsel investigating the Watergate break-in. In the decades since, lower courts, including the influential federal appeals court in Washington, have reaffirmed the principle, and presidential administrations of both parties have appointed special counsels without issue.
Judge Cannon vaulted over all of this inconvenient history. The court’s reference to the special counsel in the Nixon case was “dicta,” she argued, a legal term meaning it was not part of the official holding in the case and thus not binding law. She managed to reach this conclusion even though courts have long understood the reference to be essential to that ruling; after all, if Jaworski had not been properly appointed, he would not have the authority to issue any subpoenas.
At the same time as she was effectively rewriting a unanimous Supreme Court decision, Judge Cannon treated Justice Thomas’s concurrence in the Trump immunity case, which no other justice joined, as though it carried the force of law. This is not how it’s supposed to work. District court judges are free to disagree with precedents, but they aren’t free to disregard them. You might call it extra-constitutional.
“If district judges have as much authority as Supreme Court justices and a concurring opinion has as much authority as a unanimous opinion of the court, we’re in uncharted territory in terms of what the rules of the game look like,” Kate Shaw, a law professor at the University of Pennsylvania and a contributor to Times Opinion, told me.
Judge Cannon’s reasoning takes a page “right out of the authoritarian playbook, which is to denigrate most traditional sources of authority in favor of this narrow and quite radical conception of the law,” Ms. Shaw added. “In disparaging or minimizing the conclusions reached by previous Supreme Courts and the D.C. Circuit on this same question, she’s essentially making a similar rhetorical move: ‘You cannot trust them, you can just trust me.’”
Why did Judge Cannon act in this way? Was she simply doing the bidding of the president who nominated her to the bench? Many of her critics think so, but I’m not sure it’s that simple. Plenty of Trump appointees have shown no similar solicitousness to the former president when given the chance. Perhaps she sees herself as part of the “extra-constitutional” movement that includes Mr. Vance and Justice Thomas, dedicated to tossing aside precedents that impede the conservative project.
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Still, whatever Judge Cannon’s motives, the result is the same. As with the Supreme Court’s immunity ruling, she repeatedly delayed the resolution of straightforward legal questions, then upended decades of settled law in a way that directly benefited one man — a man who started his movement in 2015 on the gut instinct that power is all that matters.
Back then, the movement had little support from lawyers, politicians or intellectuals on the right. But in the past week alone, Americans have witnessed the remarkable consolidation of all three: in the law, from Judge Cannon and the Supreme Court; in politics, from Mr. Vance; and among the intellectuals, from the backers of Project 2025, which proposes politicizing the Justice Department by removing its longstanding independence from White House dictates.
The dismissal of the classified-document case is only the latest in a string of legal wins for Mr. Trump, including the Supreme Court’s immunity ruling and its rejection of the challenge to his eligibility for the White House under the 14th Amendment.
None of these rulings “absolve him of anything,” said Mary McCord, a law professor at Georgetown University. “No one is saying what he did on Jan. 6 was fine, no one is saying taking all those documents was fine. But to the average American who doesn’t read these opinions, what they’re seeing is, ‘The courts agree that the D.O.J. has been weaponized.’ That’s what I’m really worried about, because Trump has already done so much to undermine respect for institutions. It really does feed into his narrative, and that narrative feeds into a lot of dangerous things.”
This is what a second Trump term would look like. Ambitious judges who may not have been Trump loyalists at first will watch what’s been happening in recent days and get the message about what it takes to advance their careers. In this way, Judge Cannon embodies the future that Mr. Vance described in 2021. She is part of a legal elite raised on Trumpism that will use their perches in the judiciary and legal world to enforce a one-sided version of law that is about power and outcomes over any liberal principle. In this world, the rule of law is for suckers or, worse, only for specific people. Our people.
Mr. Vance, the Ohio senator and now Mr. Trump’s running mate, predicted on the podcast that the former president, who had been recently disgraced by his insurrectionary attempt to overturn the 2020 election, would nevertheless run again in 2024. Should Mr. Trump win, Mr. Vance said, he had some advice: “Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.” And if the courts ruled against him? No problem, Mr. Vance said: Just blow them off.
“We are in a late republican period,” he added, alluding to weakness in the ancient Roman Republic. “If we’re going to push back against it, we have to get pretty wild, and pretty far out there, and go in directions that a lot of conservatives right now are uncomfortable with.”
His interviewer, Jack Murphy, prominent in the right-wing pro-masculinity world, agreed and said, “Among some of my circle, the phrase ‘extra-constitutional’ has come up quite a bit.” Mr. Murphy said it was necessary “to become a little more robust in our behavior” in order to “refound the country,” and Mr. Vance responded, “That’s exactly right.”
Advertisement
SKIP ADVERTISEMENT
This exchange — with its disregard for the rule of law, its mockery of expertise and its elevation of outcome over process — gets to the heart of what is so alarming about the dismissal of the documents case, which had been widely regarded as the most airtight of the prosecutions of Mr. Trump. (As a reminder: He removed large quantities of classified national security documents from the White House without authorization, he refused to return them when asked politely, and he lied to the officials who tried to collect them.)
Sign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.
Judge Cannon’s rationale for tossing the case was that Jack Smith, the special prosecutor who brought the charges, was not validly appointed to his post because no federal law authorizes the appointment of someone from outside the Justice Department to perform that task. “Mr. Smith is a private citizen exercising the full power of a United States attorney, and with very little oversight or supervision,” she wrote.
To support this argument, she relied heavily on a concurrence in Trump v. United States, a two-week old Supreme Court ruling that, without an ounce of constitutional support, effectively immunized Mr. Trump and future presidents from criminal prosecution. The concurrence, by Justice Clarence Thomas, questioned the constitutionality of Mr. Smith’s appointment — an issue that was not even before the court in that case. “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Justice Thomas wrote.
As a matter of law and fact, this is not merely wrong, it is flagrantly, embarrassingly wrong. Federal law explicitly authorizes the attorney general to appoint prosecutors like Mr. Smith, which makes him not a private citizen but an official of the Justice Department, subject to the same oversight as every other prosecutor. It is not a close or complicated legal question.
The Supreme Court itself blessed the arrangement in a 1974 case that unanimously upheld a subpoena issued to President Richard Nixon by Leon Jaworski, the special counsel investigating the Watergate break-in. In the decades since, lower courts, including the influential federal appeals court in Washington, have reaffirmed the principle, and presidential administrations of both parties have appointed special counsels without issue.
Judge Cannon vaulted over all of this inconvenient history. The court’s reference to the special counsel in the Nixon case was “dicta,” she argued, a legal term meaning it was not part of the official holding in the case and thus not binding law. She managed to reach this conclusion even though courts have long understood the reference to be essential to that ruling; after all, if Jaworski had not been properly appointed, he would not have the authority to issue any subpoenas.
At the same time as she was effectively rewriting a unanimous Supreme Court decision, Judge Cannon treated Justice Thomas’s concurrence in the Trump immunity case, which no other justice joined, as though it carried the force of law. This is not how it’s supposed to work. District court judges are free to disagree with precedents, but they aren’t free to disregard them. You might call it extra-constitutional.
“If district judges have as much authority as Supreme Court justices and a concurring opinion has as much authority as a unanimous opinion of the court, we’re in uncharted territory in terms of what the rules of the game look like,” Kate Shaw, a law professor at the University of Pennsylvania and a contributor to Times Opinion, told me.
Judge Cannon’s reasoning takes a page “right out of the authoritarian playbook, which is to denigrate most traditional sources of authority in favor of this narrow and quite radical conception of the law,” Ms. Shaw added. “In disparaging or minimizing the conclusions reached by previous Supreme Courts and the D.C. Circuit on this same question, she’s essentially making a similar rhetorical move: ‘You cannot trust them, you can just trust me.’”
Why did Judge Cannon act in this way? Was she simply doing the bidding of the president who nominated her to the bench? Many of her critics think so, but I’m not sure it’s that simple. Plenty of Trump appointees have shown no similar solicitousness to the former president when given the chance. Perhaps she sees herself as part of the “extra-constitutional” movement that includes Mr. Vance and Justice Thomas, dedicated to tossing aside precedents that impede the conservative project.
Advertisement
SKIP ADVERTISEMENT
Still, whatever Judge Cannon’s motives, the result is the same. As with the Supreme Court’s immunity ruling, she repeatedly delayed the resolution of straightforward legal questions, then upended decades of settled law in a way that directly benefited one man — a man who started his movement in 2015 on the gut instinct that power is all that matters.
Back then, the movement had little support from lawyers, politicians or intellectuals on the right. But in the past week alone, Americans have witnessed the remarkable consolidation of all three: in the law, from Judge Cannon and the Supreme Court; in politics, from Mr. Vance; and among the intellectuals, from the backers of Project 2025, which proposes politicizing the Justice Department by removing its longstanding independence from White House dictates.
The dismissal of the classified-document case is only the latest in a string of legal wins for Mr. Trump, including the Supreme Court’s immunity ruling and its rejection of the challenge to his eligibility for the White House under the 14th Amendment.
None of these rulings “absolve him of anything,” said Mary McCord, a law professor at Georgetown University. “No one is saying what he did on Jan. 6 was fine, no one is saying taking all those documents was fine. But to the average American who doesn’t read these opinions, what they’re seeing is, ‘The courts agree that the D.O.J. has been weaponized.’ That’s what I’m really worried about, because Trump has already done so much to undermine respect for institutions. It really does feed into his narrative, and that narrative feeds into a lot of dangerous things.”
This is what a second Trump term would look like. Ambitious judges who may not have been Trump loyalists at first will watch what’s been happening in recent days and get the message about what it takes to advance their careers. In this way, Judge Cannon embodies the future that Mr. Vance described in 2021. She is part of a legal elite raised on Trumpism that will use their perches in the judiciary and legal world to enforce a one-sided version of law that is about power and outcomes over any liberal principle. In this world, the rule of law is for suckers or, worse, only for specific people. Our people.
