It had been little over a week since President Joe Biden called Donald Trump and his supporters "semi-fascist" when a Trump-appointed judge, Aileen Cannon of Florida, proved Biden's point. While most Americans were too busy enjoying Labor Day cookouts to pay much attention to the news, Cannon let loose with a decision breathtaking in its disregard for both the law and the judicial branch's legitimacy.
In one sense, it's not a surprise that Cannon, a judge who Trump selected precisely because he knew how corrupt she was, eagerly issued a ruling slowing down the Department of Justice's (DOJ) efforts to investigate Trump's theft of hundreds of classified documents from the U.S. government. But even though she had already taken the highly unusual action of signaling her intention to do her crony this favor, the most cynical observers of Trump's shady judicial appointees were surprised at how far she took it. Cannon not only threw a bunch of wrenches in the DOJ's ability to investigate a former president, undergirding her decision with the same logic of the Big Lie and the January 6 insurrection, but she extended a nearly unlimited right to Trump to break the law. As national security legal expert Bradley Moss noted on Twitter, this ruling "is meant for Trump and Trump alone," giving him special rights not enjoyed by any other person in the country, including the actual president. All of this, even though Trump is a private citizen and not the president at all.
At stake are boxes of classified documents that Trump stole from the government when he left the White House. For months, the DOJ has been trying to get these documents out of Trump's illegal possession, but Trump — for whatever no-doubt nefarious reason — has been resisting. Even after the FBI raided his Mar-a-Lago resort in an attempt to seize the stolen documents, they found that many of the folders marked "classified" were empty, suggesting Trump removed the documents and either hid them, sold them or gave them away.
In an attempt to delay the DOJ investigation into what is looking like an extensive amount of criminal behavior, Trump sued, demanding a "special master" go over the documents seized by the FBI to determine what the agency has a right to review. From the beginning, the lawsuit was frivolous nonsense, as a federal judge had already signed the warrant to seize the documents. But Cannon didn't just overrule the original judge in letting Trump have his "special master," she also put a halt to the investigation. Because, in a truly alarming move, the judge instructed the special master to consider the former president's supposed "executive privilege" in retaining the documents.
"It's a hell of a thing if the mere assertion of executive privilege by someone who no longer holds office can stop an existing officeholder from engaging in a core executive function."
The problem with this should be obvious: Trump is no longer the president and thus has no "executive privilege." Biden is the president. He and the FBI, which is part of the executive branch, do possess executive privilege over the documents. By issuing this ruling, Cannon is functionally saying that Trump has more presidential powers than the actual president. As Boston University law professor Robert Tsai noted on Twitter, "It's a hell of a thing if the mere assertion of executive privilege by someone who no longer holds office can stop an existing officeholder from engaging in a core executive function."
Call it the Big Lie decision.
Cannon's opinion rests on an unsubtle implication that Trump is somehow more president than the actual president. As a New York Times article explained, "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." As Slate's legal expert Mark Joseph Stern noted on Twitter, no legitimate judge would "take Trump's absurd filing seriously," but "Cannon is not a real judge, but a Trump judge, and one of the most corrupt of the bunch."
That Cannon was chosen for her corruption is not even in dispute. As investigative reporter Jose Pagliery of the Daily Beast wrote, Trump's lawyers avoided filing this lawsuit in any court close to Mar-a-Lago, instead picking "a satellite location that's 70 miles from Mar-a-Lago" because they wanted a judge he appointed, one that could be trusted to ignore the law and instead rule in Trump's favor. But what they got was likely beyond even their fondest hopes: A judge who would rule as if Trump's right to executive powers exceeds that of the actual president's.
For the past week, we've been subject to an endless stream of bellyaching from Republicans over Biden's speech calling MAGA Republicans "semi-fascist," followed by his Thursday speech in Philadelphia warning Trump's movement "threatens the very foundations of our republic." In response, House Minority Leader Kevin McCarthy whined that Biden should "apologize for slandering tens of millions of Americans as 'fascists.'"
Judge Cannon ruled that Trump's right to executive powers exceeds that of the actual president's.
All of this umbrage, of course, is totally fake. That Trump and his supporters subscribe to a fascist ideology was clear before January 6 and indisputable after Trump incited a riot in an attempt to stop the peaceful transfer of power. As historian of fascism Federico Finchelstein explained in the Washington Post, Trump "aspires to return to a form of fascism." Trump may have been unsuccessful at becoming a fascist dictator, but the January 6 riot was absolutely an effort to become one. And as Rep. Jamie Raskin, D-Md., explained on "Face the Nation" this past Sunday, both the Big Lie and the embrace of political violence are "hallmarks of a fascist political party."
Cannon's ruling on Monday is just further proof that Trump is, ideologically, a fascist leader. By asserting that Trump enjoys all these powers that the duly elected president does not, Cannon is reinscribing the foundational — and utterly fascist — assumption of Trumpism: Trump's power should be absolute and not constrained by either rule of law or a lost election.
There's been, for good reason, a lot of interest in exactly what Trump wants all these classified documents for. Is it for selling them? Or perhaps exchanging them to hostile foreign leaders for political favors? It's hard to say, but even without knowing his purpose, it's alarming that Trump is going to such lengths to hang onto the documents, and that his supporters are going to such lengths to defend his illegal behavior. This is all about putting Trump above the law. By issuing this ruling, Cannon has blessed Trumpism's basic premise: Donald Trump has powers that not only above those of the elected president but powers that exceed those of the office itself. This ruling proves that Biden was right to warn Americans: Trump is a fascist and a threat to democracy.
