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The Left’s Vicious War on Judge Aileen Cannon
Federal District Court Judge Aileen Cannon has dismissed the Jack Smith Show in Florida. The reason? Under the United States Constitution, this guy was not properly authorized to be a United States special counsel. In the simplest of explanations: under the Constitution’s Appointments Clause, Art. II §2 cl. 2, a special counsel needs to have been appointed by the president and approved by the Senate at some point. Smith is a private citizen, appointed only by Merrick Garland, and never faced Senate scrutiny. Except for Robert Mueller, all prior special counsels, like John Durham, met that requirement, typically employed as United States attorneys at the time of their designation and approved by the Senate. In Mueller’s case, a court ruled that he technically had met the requirements, too.
Not Jack Smith. Joe Biden and Obama’s Dream Supreme Court justice, Merrick Garland, raced the private citizen through and sicced him on former President Donald Trump without Senate consultation. The messy procedure by which this guy was given carte blanche to persecute Trump from Washington, D.C., for the “January 6” lawfare to Mar-a-Lago in Florida for the “Documents” lawfare reveals the degree to which all the Democrat lawfare has been conducted with less focus on law but more focus on “nailing the bastard” as fast as possible in order to sway voters and skew the 2024 presidential elections.
When people race too hard without looking where they are going, they sometimes trip and fall over obstacles that other pedestrians easily avoid. That is what happened here. Instead of methodically researching law and proceeding at a deliberate pace, the mandate was to destroy Trump quickly enough to ruin him in the public mind as he pursued the presidency down the homestretch. It was all so perfect. Just like Hillary’s and the Democrats’ Operation Crossfire Hurricane. They had it all figured out.
Sandwiched between my first 10 years as a congregational rabbi and my return to that career in 2002, I practiced sophisticated complex litigation for 10 years at three of America’s most prestigious law firms: Jones Day, Akin Gump, and Baker and Hostetler. I experienced firsthand how high-stakes lawsuits are pursued. A team of top-notch attorneys is gathered, headed by a world-class litigation partner. He or she assigns members of the team to research different aspects of the law: substantive law and procedural law. The importance of substantive law is that, in all legal systems, defendants and plaintiffs are held to precedent — standards that have been set in the past. This is called stare decisis.
The idea of stare decisis is that, if law is applied consistently as it always has been previously, then the parties are getting the fairest justice. They cannot say, “You made this up to judge me differently from the way the law is applied to everyone else.” In part, that is why the Merchan–Bragg case against President Trump in New York will be overturned as soon as the appeal reaches an honest appellate panel. Another reason for stare decisis is that it enables every person to know the boundaries as to how to conduct his or her daily affairs. Perhaps surprising to those accustomed to Clinton and Obama judges, the judge is supposed to follow the precedent, not make up his or her own law the way that Sotomayor and She Who Cannot Define “Woman” do.
As a result, attorneys spend long hours researching past cases to find one or more that had facts similar to the present case and that resulted in the desired verdict. If a lawyer cannot find a really similar case that had the desired outcome, he looks for the cases with the closest facts and tries to show the judge that, although the old case’s facts were not identical to the instant matter, they were similar enough, and the holding was good. Meanwhile, the other side looks for cases with similar facts that say the opposite holding is the correct one. This can take enormous time, although online digital research apps like Westlaw and Lexis make the research faster and more effective. For this reason alone, sometimes attorneys’ hourly bills can run high, but they are totally honest. That is what the situation requires.
How can it be that various cases can come out in opposite ways sometimes? They may have had more distinctly different facts than meet the eye. Or they may have been decided in different jurisdictions that have established different rules and laws over the years. So New York and Massachusetts precedent may differ from that of Texas and Kansas. States may differ, and federal court circuits may differ. The Ninth Circuit, which includes California, Oregon, and Washington State, has evolved different precedents from the Fifth Circuit, which includes Texas, Louisiana, and Mississippi. When different jurisdictions’ precedents on certain issues conflict so heavily that a greater uniformity is needed, the matter may reach and be adjudicated by the United States Supreme Court.
In pursuing President Trump, to “nail him” quickly, Biden, Garland, and Smith did not “cross all their t’s and dot all their i’s.” They not only paid short shrift to substantive law but also to procedural law. Non-lawyers do not always get it, but a totally winning case can get kicked out of court if the proper procedures are not followed. For example, if the plaintiff does not have “standing,” a good case gets thrown out. Or if they neglected to first “exhaust their remedy” in certain administrative law cases. They need to establish subject matter jurisdiction and personal jurisdiction. All kinds of stuff. They have to be in the right court. Through almost 20 years, I taught some 2,000 law students the laws of California Civil Procedure. The course ran 13 weeks, and I taught more than plenty, but it could have been extra-advanced and run two more years. Experienced attorneys know that. They have to deal with forum non conveniens, ex parte notification, subpoenas duces tecum, and all kinds of stuff.
Biden, Garland, and Smith blew it. They were so excited, gazing straight ahead to destroy President Trump, that they did not bother to look down to confirm they were running on solid land. Jack Smith was appointed outside the law’s procedural and substantive requirements, and now their lawfare is stifled. The dismissed Florida “Documents” case will go on appeal, and the D.C. “January 6” case inevitably faces the same appellate journey, regardless of whether that Obama judge rules like Judge Cannon or goes the opposite way and approves Smith, because then the Trump attorneys will appeal. The appeals will go to the respective appellate circuits and probably will end up in the Supreme Court. That will take them way past the January 2025 inauguration. If Trump is elected, he will have his new attorney general file motions “to dismiss with prejudice,” and that will ensure the cases never can come back — because of double jeopardy.
But there is one more thang. When Merchan ran so much of his court without sensitivity to even the appearance of fairness, the left-wing news media loved him. A brilliant judge! A fair judge! A wise judge! Just the right judge up to the challenge!
But when Judge Cannon ruled, these were typical of the headlines:
“Judge Aileen Cannon has proved her critics right” (MSNBC)
“Aileen Cannon Ruling Leaves Legal Experts Stunned: ‘This is Bonkers'” (Newsweek)
“Bye, bye Aileen” (Salon)
“Dismissal Brings New Scrutiny to Judge With a History of Unorthodox Decisions” (New York Times)
That’s why the Constitution granted Article III federal judges lifetime tenure.
Here is what we know about Judge Cannon, a woman of Colombian parental heritage, thus a Latina. (Latinx? Not she.) She graduated from Duke, then from the University of Michigan Law School magna cum laude and Order of the Coif. That’s as good as it gets, and that law school regularly is ranked in the top ten out of 196 American law schools. Then she was an attorney at top 15 national law firm Gibson Dunn, then served successfully as a federal prosecutor for seven years. By contrast, Biden graduated 76th in a class of 85. (Dumma Cum Laude?) Harris was a joke in California, subject to constant criticism from both the right and left.
Compare Judge Aileen Cannon to the Obama–Biden loose cannons: Sotomayor and She Who Cannot Define Woman. Jackson’s prior service as a district judge was undistinguished. Her opinions even were overruled by liberal Democrat appellate judges, sometimes unanimously.
And Sotomayor: Laurence Tribe, a Harvard Law School judicial scholar of the Left, wrote a letter to Obama calling her utterly unworthy of being named to the Supreme Court: “[S]he’s not nearly as smart as she seems to think she is,” and “her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the court.”
She herself admits she got into Princeton University with low standardized testing grades and again into Yale Law School via “affirmative action” despite her low grades again in standardized admission testing. She called herself “the perfect affirmative action baby” and blamed her consistently low testing on “cultural biases” of the tests. She was given a try-out as a summer associate at the prominent law firm of Paul, Rifkind, Wharton and Garrison, and she herself admitted that her “performance was lacking.” Remarkably, contrary to standard practice at such firms, Paul, Rifkind did not invite her back after her 2L summer and did not offer her a position.
If only the Left were honorable, they would acknowledge that their loose cannons cannot hold a candle to Judge Aileen Cannon.
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The post The Left’s Vicious War on Judge Aileen Cannon appeared first on The American Spectator | USA News and Politics.
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