Sandwiched in between an assassination attempt and a VP pick, District Judge Aileen Cannon issued one of the worst, most nakedly political judicial decisions in decades, dismissing the classified documents case against Donald Trump in a flat rejection of decades of precedent.
Cannon’s decision is a sneak preview of what’s at stake in November: dozens of Trump-appointed federal judges who place nationalist politics above law, precedent, or even honor.
The classified documents case should have been a slam dunk. We all saw the photos of boxes of top secret documents in Donald Trump’s bathroom. Those documents, as everyone knows, are the property of the National Archives – and Trump surely knew it too, which is why he had them stashed away. There is no conceivable rationale for his making off with them, which is why Trump was charged with 31 counts under the Espionage Act. If this case had been before any honest judge in America, it would have been decided by now.
But, by chance, the case was assigned to Cannon. (There are 18 district judges in the Southern District of Florida; the judge for any particular case is picked at random.) Twice, in fact.
First, in August 2022, she was assigned to the civil case in which Trump sued the government for seizing the documents from Mar-a-Lago. The next month, she appointed a “Special Master” to vet the 11,000 records, shocking legal experts and interfering in the still-pending criminal investigation into Trump’s actions. That act, which was rendered in a contorted and frankly bizarre opinion, was overturned in sharp terms by the (conservative-dominated) circuit court.
Then, in June 2023, she was assigned to the criminal case she had previously interfered with. You can’t make this stuff up.
A protégé of right-wing operator Leonard Leo, Trump appointed Cannon to the court in 2020; she was confirmed after Trump had already lost the election. Cannon was young, new, and inexperienced, and after she was chosen to oversee the classified documents case, some of her fellow judges suggested she step aside, given the enormity of the case and the impropriety of her previous involvement. But she stuck to it, and proceeded to delay it every step of the way. Though a trial was originally set for May, Cannon immediately began delaying the case using every procedural pretext in the book. Her clerks said she was at once overly anxious and overly demanding, leading one to turn down an offer and another to quit.
And now, Cannon has dismissed the criminal case outright because of a legal theory that has been explicitly rejected by the Supreme Court as recently as five years ago: that the entire office of the special counsel – currently occupied by Jack Smith, who brought the case – is unconstitutional.
This theory is a play-thing of the far right. Justice Clarence Thomas mentioned it, out of nowhere, in his concurring opinion in the Supreme Court’s presidential immunity case. Federalist Society speakers talk about it often. And Judge Cannon requested a briefing on the question back in February.
There’s only one problem: It flies in the face of Supreme Court precedents from 1974 (Watergate), 1987 (Iran Contra), and 2019 (Russiagate).
“This is a very aggressive move on her part,” Yale Law School professor Akhil R. Amar told The New York Times.
Judge Cannon did attempt to distinguish away those precedents. For example, of the 1974 statement holding the independent counsel office constitutional, she said it was merely a “dictum,” i.e. a thing that a judge says in an opinion that is not an essential part of the precedent. Then again, the Supreme Court had already ruled on that point, holding in 2019 that “the Supreme Court’s quoted statement regarding the attorney general’s power to appoint subordinate officers is, therefore, not dictum.” In other words, the constitutionality of the independent counsel, and special counsel, is settled law.
Which Judge Cannon threw out the window.
If Trump loses the election, Cannon’s decision will almost surely be overturned, and he may, one day, face trial for stealing boxes of classified documents after losing the 2020 election.
But if Trump wins the election, his Department of Justice will surely drop the charges against him, and he’ll get off scot free.
More importantly, he’ll get the chance to appoint dozens of judges just like Aileen Cannon: MAGA ideologues who believe they have to “save America” by doing whatever benefits the movement.
Now, there is a word for systems like this, where the judiciary is merely an arm of the nationalist movement in power. It’s a misunderstood word, and maybe an inflammatory word, especially coming on the heels of an attempted assassination of the nationalist candidate. Maybe we shouldn’t use the word. But the word is “fascism.”
As Thomas Zimmer has persuasively written in the context of Project 2025, fascism doesn’t require concentration camps or jackbooted armed forces marching in unison. At its core, it’s simply a political system where a nationalistic, anti-liberal party controls all the parts of government and society, including the courts, the press, the educational system, and the military – and uses them to cement its own power. The word comes from the fasces, a tied up bundle of sticks that signified the power of Ancient Rome: all the strands of society united in the service of the nation.
Fascism is also a cult of personality, a style of romantic symbolism, a glorification of violence (and guns), an alchemy of rage and alienation into power and vengeance. All of these are present in the MAGA movement (Jeff Sharlet has written brilliantly on this), headed by a figure who many believe to be destined for leadership by God (and, most recently, saved from an assassin’s bullet by divine intervention).
I have no idea if Aileen Cannon believes any of this. But her rulings, consistently, have placed the “stick” of judicial power into Trump’s nationalistic bundle. And they are impactful; Unlike the Stormy Daniels case, the documents case was squarely about Trump’s acts in the wake of the 2020 election. And now it is gone.
But I see this decision in the context of the future, not the past. People may support Trump for many reasons, but they should know that their vote will bring about a radical, nationalistic vision in which some people – a numerical minority of Americans – seize all the reins of power and use it to shape America in their image. If you like that image, and don’t mind women, immigrants, DEI activists, and queer people having their rights taken away in order to achieve it, well, good for you. But if you don’t, there’s no denying that that is what this campaign has promised to do.
Judge Aileen Cannon is a cog in that machine. If Trump wins, there will soon be thousands of her.
Judge Cannon’s Decision Is a Glimpse of a Terrifying MAGA Future