Will Trump’s Supreme Court judges turn on him?

Trump got what he wanted from an inexperienced federal judge he appointed shortly before leaving office, but her rulings were riddled with favoritism and legal errors, and an 11th Circuit panel (2 Trump judges, 1 Obama judge) struck most of them down (see story here; read their order here).

He could appeal to the Supreme Court. But now that Gorsuch, Kavanaugh, and Barrett have secure seats on the court, they don’t have to cater to him, and my guess is they won’t. But before we delve into that, let’s review what happened in the lower courts. For brevity’s sake, I’ll quote a commenter on (here, at comment #94, the same poster I previously quoted here).

“DOJ … agreed to look the other way on all the jurisdictional fuckups and open defiance of precedent in the original order. And all Cannon had to do was let them continue working on the 100 documents clearly bearing classification markings. She said no to even that.”

But the appeals court lifted her stay and allowed DOJ to go ahead. The commenter continued at comment #95:

“To be clear about the extent of error in this ruling, Cannon did not merely disagree with the grave concerns expressed by the Executive Branch in classification interests related to national security. She completely ignore them. Her order reads as the DOJ never made any such arguments in their responses. The same can also be said about the jurisdictional arguments and quite a few others.”

(Italics added for emphasis.) The 11th Circuit judges did filled in the blanks, writing the order she should’ve written, but didn’t. You could say she left the barn door open and they went through it, although her rulings would’ve been reversed anyway, because they were erroneous. According to NBC News (first link above),

“The appeals court said that among the factors under consideration were whether or not Trump had individual interest or need for the classified documents, which the district court had not mentioned in its analysis. ‘Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents,’ the three-judge panel wrote in Wednesday’s opinion.”

(Italics added for emphasis.) This is simple: A judge who rules against the agency responsible for protecting national secrets without even mentioning its legitimate concern about potential harm to national security probably will be reversed by a higher-level court. But the reversals didn’t stop there:

“The judges went on to argue that certain documents are deemed classified because they contain information that could harm the national security, and for that reason individuals may only have access to them if they need to know that information.”

This “need to know” restriction includes ex-presidents, they said, which undercuts the entire basis for Judge Cannon’s rulings, i.e. that Trump might have a right to retain the classified records. The 11th Circuit judges ruled he doesn’t, which was DOJ’s position all along.

From here, things get downright silly. Remember, a central tenet of Trump’s argument is that he declassified those records. But even the special master his lawyers picked was skeptical of those claims after Trump’s lawyers “refused to identify any such documents” because, they argued, doing so might incriminate him.

Now, as for whether Judge Cannon’s rulings will be reinstated by the Supreme Court, first I’ll observe that even if the three Trump-appointed justices were so inclined, it would still take two more of the other three conservatives, and there’s no chance Chief Justice Roberts will be one of them, which leaves Alito and Thomas.

They may be political hacks, but they’re not Trump’s hacks, and the older generation of conservatives to which they belong usually aren’t hostile to America’s national security interests.

So if Trump appeals the 11th Circuit’s ruling to the Supreme Court, I think he’ll get Judge Cannon’s ass handed to him there, too.

His lawyers shouldn’t have picked her in the first place. All lawyers play the judge-shopping game. Obviously you want a judge who’s likely to agree with you, especially if you have a lousy case. But there are limits to this. You don’t want a bungler who’s certain to get reversed. You want a clever judge, not an incompetent one.

They should’ve shopped for a friendly judge who’s been around the block and could’ve danced around the government’s arguments, instead of ignoring them as Judge Cannon did. By the time anyone graduates from law school, and all of these people have (except Trump), they know nature abhors vacuums, and leaving blank spaces in a legal argument simply invites the other side to fill it in for you.

At the Supreme Court, blank spaces in arguments turn into black holes that swallow lawyers. But this case, involving as it does national security, isn’t only treacherous for Trump’s lawyers, it’s also treacherous for Trump-friendly justices. A political decision that threatens national security will further enrage an already pissed-of Democratic Congress.

Related stories: Two ex-federal prosecutors weighed in, one saying the 11th Circuit ruling “completely rebukes everything” Judge Cannon did (story here), while the other doubted the Supreme Court would intercede on Trump’s behalf (story here).

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