How far-reaching is two Trump-appointed judges' ruling against him?

A court's directive to the FBI to continue investigating the former president throws up important questions

Former US president Donald Trump speaks at a rally in Wilmington, North Carolina, last week. AP Photo
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In a swift and stinging ruling, the 11th Circuit Federal Appellate Court in Florida restored reason to a legal process that had spiralled wildly out of bounds. In its ruling, siding with the US Department of Justice on approximately 100 classified documents seized by the Federal Bureau of Investigation from Donald Trump's Florida hotel on August 8, the court allowed the government to once again access its own documents.

But the main reason the decision is significant is that two of the three judges who issued the rebuke of Federal District Court Judge Aileen Cannon were appointed by Mr Trump. He has frequently railed against judges who ruled against him, memorably denouncing one as "a Mexican" (he is from Indiana). And along with Republican Senator Mitch McConnell, he concentrated on filling the benches with highly ideological Republicans.

The impact on the Supreme Court has been most evident, not just in the ruling overturning the 50-year-old individual right to an early-term abortion, but numerous other dramatic rulings. This led to the fear that not only had he managed to pack the courts with right-wing ideologues, but that he had immunised himself from legal accountability.

Judge Cannon was one of the former president’s last appointees, rammed through in his final week. Her ruling was a mishmash of pretzel logic and factual inaccuracy, and was derided from all parts of the legal spectrum. It therefore strongly reinforced those concerns.

However, the rebuff by this conservative appellate court is not only appropriately contemptuous, it also raises a series of crucial questions about the impact and future of the Trump-inflected judiciary.

Documents seized during the FBI's search of Donald Trump's Mar-a-Lago estate in August. AP Photo
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It’s hard to imagine how the executive branch could enjoy a confidentiality privilege against itself

The ruling begins with a straightforward recitation of the facts and the parties’ claims. Halfway into the text, though, it unleashes an utter demolition of Ms Cannon's legal and factual mistakes. The most important of these is that, in the legally binding four-part test that everyone agrees must determine her decision, she had to find that the government displayed a "callous disregard" for Mr Trump's constitutional rights.

But, as the ruling notes, not only did Mr Trump not show that, he also didn't even really claim it. The rest of the decision makes for entertaining and, one hopes for Ms Cannon, instructive, reading, but it really isn't necessary. Without showing such "callous disregard", his case, and her ruling, collapse.

And that has profound implications for the rest of the case, because if the government didn't act with a callous disregard for his rights regarding the classified documents, how could it have done so regarding the other documents? The rest of the script writes itself.

What's more important is that a conservative and Trump-appointed majority court was not willing to reflexively side with him, and that it unanimously ruled, in 24 hours no less, against a lower court judge who was willing to do that, and in the process made Ms Cannon look ridiculous.

This is all good news but it's hard to know how far it might go.

Clearly there are still limits, and Ms Cannon's ruling was so indefensible that no appellate court was likely to fail to overturn it. Would they have been inclined towards a corrupt bias in a closer case? This is a conservative court, and it clearly has that bias. But would it have been willing to side with Mr Trump personally out of a misjudged sense of loyalty? That seems implausible.

Arguably the Supreme Court is the most conservative appellate court in the country today. Its ideological bias has been made clear in a series of shocking rulings that shred precedent and follow no real methodology other than right-wing, and especially religious, ideology.

That bias is also well-established. But would the high court’s five-vote right-wing majority, three of whom were appointed by Mr Trump, be inclined to personally protect the former president? We don't know, but there’s every reason to suspect we’ll find out. There are at least five ongoing investigations that could result in indictments against Mr Trump, and he is likely to fight not merely being put on trial but even being investigated, every inch of the way.

Donald Trump's Mar-a-Lago residence in Palm Beach, Florida. EPA

The crux of the Florida case are his claims that the FBI, despite a lawful court order authorising the search, had no right to take the government records he had removed from the White House, refused to give back despite a grand jury subpoena, and which his lawyers falsely attested he did not possess, because they may somehow belong to him and because he retains a degree of “executive privilege” even after leaving office.

Executive privilege is a legal notion that dates to the Watergate era and is presumed to protect confidential conversations between a president and his or her staff to promote frank policy advice. But this still poorly defined privilege does not apply to any form of criminal conspiracy or unlawful conversation. And it belongs to the executive, meaning the sitting president.

Some jurists, including Supreme Court Justice Brett Kavanaugh, have suggested that former presidents might retain aspects of executive privilege. But it’s very hard to imagine how the executive branch could enjoy a confidentiality privilege against itself. At any rate, none of that would provide protection from investigations into criminal activities, including crimes involving the removal, retention and concealment of government documents.

Mr Trump and his supporters keep insisting that he somehow declassified the classified documents in question. There’s no evidence of that and his lawyers have not made these claims in court, where there are serious penalties for lying. But, as the appellate court points out, it doesn't matter. None of the crimes the FBI was investigating when it searched his hotel and discovered the trove of government documents hinge on classification.

The only thing the classification markings prove is that those documents don’t belong to him or include communications with his personal lawyers. And now they are back in the hands of the FBI, which is trying to discover why Mr Trump took them, refused to give them back, apparently lied about having them, and was so keen on keeping them. That’s all very important, but legally the motivation is irrelevant. Intentionally doing any of that is a felony, including for a former president. And it’s getting very close to landing this one in the dock.

Published: September 28, 2022, 2:00 PM
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