Tuesday, September 6, 2022


 By Dominique Paul Noth

John Roberts (hardly having a liberal bone in his body) has lost any semblance of control of the conservative court he is chief justice of. He’s been pushed aside not just by Trump’s ability in four years to make three appointments. Old buddies like Sam Alito are shoving him into the toilet.

For three years in speeches and reports, Roberts has been urging his colleagues to move more slowly through past decisions and insisting the federal court system is nonpartisan.  There are not Obama judges or Trump judges, he has proclaimed, but judges doing the best they can to protect democracy and the Constitution.

Guess what, John?  For any who doubted there are Trump judges willing to put politics above the law, it’s not just Alito. Welcome to the special master decision by a Trump appointed novice district judge in Florida.

She has invented a special deference for former presidents (or just one of them) when facing criminal investigation, forcing a special master to be appointed before the Department of Justice can use the documents seized in August at Mar-a-Lago.  That seems to mean that even forensic evidence about who handled what has to be deferred until a special master decides what is in bounds and what it not.

Legal experts respond with
rage and sadness to
Aileen Cannon

Constitutional lawyers on all sides are frankly aghast.  Aileen M. Cannon based in Florida -- and only appointed by the disappearing GOP Senate majority in the days after Trump lost the election – has basically invented standards beyond the attorney-client privilege a special master is supposed to protect.  She has imagined a standard for ex-presidents (those named Trump not Obama) and ordered the DOJ not to use any of the material seized in August for criminal prosecution, though the DOJ knows full well (while we don’t) what it found.

The DOJ, the national archives and the FBI found a lot more at Mar-a-Lago before August, none of which is hampered by the Cannon fodder.  (Though the August haul is more clearly stuff Trump was hiding.)  Plus, there are arrays of grand juries and legislative hearings probing Trump that will not slow down.  It does mean that several of these impending charges are about money and influence, though some want to find him guilty of Jan. 6.

Trump may wind up an Al Capone echo, forced into prison by tax stuff though we knew his mob behavior killed people.

TV’s usual array of talking heads – right, left and supposedly middle – seem equally muddled. Some see a victory for Trump, others expect it is activating his opposition and speeding his doom (sort of like Russia buying missiles from North Korea, which can be seen as a sign of Putin’s deterioration).

All acknowledge its main gain is a delaying tactic forcing the DOJ into a difficult decision as it lays grounds for what it will accept or oppose by Sept. 9 in the choice of special master. In a rare display of judicial balance, Trump’s former attorney general, Bill Barr, likened the special master ruling to a baseball game “rain delay of a couple of innings.”

Traditionalists, recognizing how this novice judge has created new rules just for Trump, want the DOJ to go the formal appeal route to a higher court, the 11th Circuit where 5 of the 11 judges were appointed by Trump.  But all are probably more restrained by their judicial temperament than she was.  The appeal route could force intermittent delays, briefs, a trial-level presentation, even an appeals panel that can be appealed to a full court, causing even more months.

Meanwhile simply choosing a special master – who is supposed to have judicial experience – may also be a delay but far quicker.  Hovering over all is the public and legal anger that the Cannon novice has written new rules of the road, and these must be forced away by judicial sensibility.

But honestly, how do these delay tactics benefit Trump? The public is clearly impatient to see him penalized or absolved. His tactics do suggest he still holds some power.  Yet the tactics give the various branches of the law more time and clout in pursuing him. Meanwhile the public is getting sick of the game and disinterested, which may work to Trump’s advantage. People are asking themselves if the full force of the government can’t lock him up, maybe the public should just let him be.

And that’s the only way the delays will work – IF in November the Republicans gain power at the polls. IF the Republicans take enough seats in the House to stop the Jan. 6 hearings. IF the GOP gains enough leverage in the Senate to block the range of good things the 50-50 split (with VP Kamala Harris as tiebreaker) have put in place. IF enough states gain enough GOP voters to revive abortion laws passed in the 19th century when women didn’t have a vote.  IF such antiquity and GOP gerrymandering (under the inane false equivalency that “we’d better do it to the Democrats before they do it to us”) gain even an inch of ground.

That Trump judge in Florida has actually clarified how real are the worries about our democracy being in danger.  The extremes of the SCOTUS abortion ruling gave voters, even those who didn’t like Roe v Wade, more reason than ever before to roll away from the extreme right wing. 

 Biden’s successful infrastructure and inflation reduction bills are also making inroads, as are his speech efforts to separate responsible Republicans from MAGA ones.

For the public that refused to worry about the future of our democracy, the special master decision should have a very specific meaning.  The danger warnings no longer feel like the left side of right-wing conspiracy paranoia. More of the public is now activated by concern for one person, one vote, for the basic standards of democracy. 

These voters realize the danger is real – if a judge in Florida can violate all expectations to rule somewhat in his favor, if he can still draw several hundreds to his rallies almost two years after leaving office, if states continue to try to elevate false electors,  if  state GOP legislators try to override the votes against them in an election. 

If these attacks and more succeed, it will only be because voters didn’t pay attention and organize to shoot them down.

About the author: Noth has been a professional journalist since the 1960s, first as national, international and local news copy editor at The Milwaukee Journal, then as an editor for its original Green Sheet, also for almost two decades the paper’s film and drama critic. He became the newspaper’s senior feature editor. He was tapped by the publishers of the combining Milwaukee Journal Sentinel for special projects and as first online news producer before voluntarily departing in the mid-1990s to run online news seminars and write on public affairs. From 2002 to 2013 he ran the Milwaukee Labor Press as editor. It served as the Midwest’s largest home-delivered labor newspaper, with archives at milwaukeelabor.org. In that role he won top awards yearly until the paper stopped publishing in 2013. His investigative pieces and extensive commentaries are now published by several news outlets as well as his DomsDomain dual culture and politics outlets. A member of the American Theatre Critics Association at its inception, he also reviews theater for Urban Milwaukee. 

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