More Fruit of the Poison Tree

In my posts yesterday I suggested that Judge Aileen Cannon’s ruling — despite its unsupportable claims — was likely just to mean a delay in the progress of the investigation into ex-President Trump’s theft of classified documents and government property. Having read the decision more closely now and read some of your comments, I’m less sure of that. As I noted, this whole decision — and Cannon’s presence on the bench at all — are fruit of the pervasive corruption of the federal judiciary. Private citizens have no right to assert executive privilege against the actual chief executive. The very idea is an absurdity on its face. But there’s much more in this decision which seeks to do everything possible to perpetuate Donald Trump’s invulnerability to the law into the indefinite future.

Others have noted the particulars better than I am able to. What I would like to note is that many of the most prestigious non-conservative legal thinkers and commentators are still operating in the mode of thinking this is just a really bad decision. There are various rules and precedents we operate through and this decision gets them all wrong. In one of yesterday’s posts I noted Neal Katyal’s excellent thread going over many of these.

But this all misses the point. For Trump judges, and many out of the same Federalist Society slipstream, we’re simply not working in that framework anymore. These decisions are simply pasted together either to protect Donald Trump or advance the partisan interests of the GOP. By this measure, it’s not a terrible decision. It’s a great one. This goes back to the on-going argument in the non-right-wing legal world about whether we’re still in a normal legal framework of contending judicial philosophies in which the main aim is to maintain respect and deference to the judiciary or whether it has been hijacked and corrupted and needs some thorough-going reform.

To many of us, we’re clearly in that latter scenario.

For the moment, what’s necessary is to immediately appeal this decision through an expedited process to get it overruled. There’s a good chance that won’t happen because the corruption goes to the very top. But we need to clarify that now.

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