The US Senate confirmed Amy Coney Barrett to the Supreme Court eight days before the 2020 presidential election. At the time, the man who appointed her, Donald Trump, said he expected that the court would be called on to decide the election, and he wanted Barrett involved in that decision.
Things didn’t work out the way the famously transactional Trump had hoped: The Supreme Court didn’t decide the election, and justices and judges from around the country, even those Trump picked, rejected 61 of the 62 lawsuits he and his allies filed in an effort to overturn the will of the people.
Almost two years later, however, Trump has finally found a judge who will do what he expects: rule on his behalf despite all relevant law, logic, and precedent. On September 5, US District Court Judge Aileen Cannon, nominated by Trump and confirmed nine days after the election he lost, ordered the federal government to stop investigating the former president for hanging on to classified documents and potentially violating the Espionage Act until a special master can review the documents. Her excuse? The special master is necessary to make sure that none of the documents are protected by attorney-client or executive privilege.
Cannon’s decision blew right past “unreasonable” and straight to “unethical.” Contrary to her argument, Trump can assert no claim of executive privilege, because he is no longer the chief executive—Joe Biden is. But even if Trump could assert executive privilege, he has no privilege over documents that belong to the US government and cover sensitive defense information and intelligence. Moreover, even if he did have some kind of heretofore unknown executive privilege over these documents because he splattered them with Big Mac sauce, he’s not entitled to steal them and keep them in his home. They belong in the National Archives, not Trump’s beach club.
Cannon’s arguments were panned by every credible legal journalist and scholar—as they deserved to be. But even those who scolded Cannon treated her indefensible opinion as a one-off Trumpian hiccup from a misguided judge, instead of the judicial drivel we should all now expect from Trump appointees. Cannon’s refusal to apply basic law is indicative not merely of her own corruption but of a deeper truth: Trump’s astonishing 245 judicial appointees, alongside other GOP judges, have been delivering increasingly partisan political victories to Trump and his Republican compatriots for several years.
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Judge Cannon’s decision feels egregious because it is so blatantly helpful to Trump’s personal quest to avoid accountability for his actions, but recent rulings from other district court judges have been every bit as legally unjustifiable. Trump judge Jeffrey Brown’s ruling to block the implementation of President Biden’s vaccine mandate was legally indefensible. Trump judge Drew Tipton has been the white wing’s go-to judge to stop Biden’s immigration reforms. Trump judge James Wesley Hendrix’s ruling to prevent Texas hospitals from following guidance from the Health and Human Services Department to perform abortions to save the life of the mother was both wrong and evil. Sure, these judges didn’t personally try to spring their benefactor from the pokey, as Cannon figuratively tried, but their decisions still reveal them as enemies of the rule of law, democratic self-government, and basic fairness.
And yet there are some in the legal-industrial complex who won’t even admit that “Trump judges” exist. These legal institutionalists are so desperate to cling to the narrative that courts are impartial that they stick their heads in the sand and ignore all of the evidence that our courts have been infected with Trumpism. These are the kinds of people who would head into the Fire Swamp while insisting there’s no such thing as a Rodent of Unusual Size.
Trump judges are real, and they are out there, menacing the rule of law. Their decisions do not merely threaten the perceived legitimacy of the courts; their decisions are illegitimate—and the least the rest of us can do is to start talking about them that way. While the Department of Justice, which appealed the Cannon decision, has to dutifully fight the battle on the bad-faith terms dictated to them by Trump judges, we do not have to offer these people that deference or obedience.
The judicial branch has no power to enforce its own rulings. Its power is based on its legitimacy in the eyes of the people. It’s time we deprived them of that legitimacy.
