Dem
47
GOP
53
Special Counsel Jack Smith was all ready to release his final report on Donald Trump's (alleged) crimes, and then to become former Special Counsel Jack Smith. But Trump doesn't want that report to come out, so he (indirectly) sued. And yesterday, he scored a (temporary?) victory, courtesy of his very favorite Florida judge.
That's right: Once again, Judge Aileen Cannon demonstrated willingness to jump in on Trump's behalf to give him what he wants, even when she has absolutely no authority to do so. We should next expect her to weigh in on whether Trump can annex the Panama Canal and Greenland or change the name of the Gulf of Mexico.
To recap, Cannon, a federal district judge in the Southern District of Florida, oversaw special counsel Jack Smith's case against Trump and his associates Walt Nauta and Carlos DeOliveira for illegal retention of classified documents and obstruction of the government's efforts to get them back. Cannon dismissed the entire case in July on the dubious grounds that the special counsel's appointment was unconstitutional. In her order dismissing the case, she did not retain jurisdiction over any aspect of it. At that point, she lost jurisdiction, regardless of Smith's subsequent appeal. Full stop. Smith's appeal meant that only the Eleventh Circuit had jurisdiction unless and until they reversed Cannon's dismissal and remanded the case. That appeal is still pending against Nauta and DeOliveira, after Smith dropped his appeal with respect to Trump following his re-election.
Fast forward to this weekend when, it would seem, Smith decided to give the defendants a peek at his pending report (why the DoJ continues to give these people openings for mischief is beyond us). Lo and behold, Team Trump didn't like what they saw. So, Nauta and DeOliveira's lawyers, who just so happen to be Trump's lawyers, filed a motion in the Eleventh Circuit (where the appeal is pending) to seek an "emergency stay" of the report claiming that its release would prejudice the case against their clients. That is not an unreasonable request, but given that such reports are usually released with heavy redactions, those concerns could likely have been negotiated with the DoJ. That approach would not get them any splashy headlines, though, so off to the Eleventh Circuit they went. They also filed the same motion with Cannon in the district court, despite the fact that Cannon lost jurisdiction over the case as soon as she dismissed it. She has no authority to hear motions like the one Trump and his co-defendants brought.
Nevertheless, she did exactly what they thought she would. On Tuesday, she issued an order staying the release of the report until the Eleventh Circuit can weigh in. Pesky separation of powers issues or laws governing the case have never troubled Cannon or stopped her from doing what she wants, which should be really troubling to the Eleventh Circuit, no matter how politically aligned they may be. In addition, the report is in two volumes, one for each case, but Cannon makes no distinction between the two cases. Perhaps Judge Tanya Chutkan can issue her own ruling telling Cannon to butt out of her case.
The truly troubling part is that Cannon must know that she has no authority to issue that order. But she simply doesn't care. She knows she will be rewarded for flagrantly disregarding her role, the rule of law and bedrock principles of separation of powers. Garland would be well within his rights to tell Cannon to pound sand, but that's not how the Democrats roll. As readers will remember, Garland released John Durham's report on the Russia investigation origins and Robert Hur's report on Joe Biden, which contained needlessly inflammatory rhetoric. And DOJ regulations require special counsels to prepare final reports, and they are routinely released. Such was the case with the Mueller report.
As a practical matter, Cannon's decision will likely have little effect, other than to further endear her to Donald Trump. One can expect the Eleventh Circuit to move expeditiously on this, and hopefully they will do the right thing. If they do not, well, there are FOIA requests, and there are leaks, and there are other ways the report could see the light of day. Heck, Joe Biden could release it at 11:59 a.m. on January 20. After all, it's not illegal if the president does it.
Meanwhile, all this wrangling, and all this squawking, makes it look like Trump is trying to hide something. Of course, he IS trying to hide something, so this would be a case where appearances are NOT deceiving. We just don't quite understand why he's fighting so mightily. He's done running for election/re-election and, besides, his base believes him whenever he declares something to be "fake news." Seems to us he would be better off remaining silent, rather than giving juice to the whole thing. We guess it's just his total inability to tolerate ANY unfavorable publicity, even if fighting back actually increases the amount of negative PR. Donald Trump, meet Barbra Streisand. (L & Z)