Bill Barr is, in his core, a political animal. His legal acumen is always at the service of his sense of which way the wind blows. It’s why he wrote a nonsense love letter to Trump in order to jump back into the Attorney General role and it’s why he delivered haymaker after haymaker in his January 6 testimony. Barr always knows the right legal answer, even when he’s actively undermining the rule of law.
That’s why Barr, with no present political aspirations, is quick to call out Trump acolyte Aileen Cannon’s soon-to-be red-flagged special master order as nonsense.
But while a right-wing legal luminary is trashing the order, Jonathan Turley is so addicted to his carefully cultivated audience of Q-Curious MAGAheads that he can’t bear to let them down. So he’s back with a new piece scolding all the meanies out there who cruelly demand that federal judges… have a passable grasp of American law.
When U.S. District Judge Aileen M. Cannon issued an order for the appointment of a special master, she instantly became the latest jurist targeted by a furious mob of media and pundits. Rather than simply disagree with her order, these critics attacked Cannon personally and ethically, including lawyers and law professors.
“Simply” does a lot of work here. It’s a common propaganda tool where the speaker accepts that people will disagree, but then sets the boundaries of “proper” disagreement. Boundaries that just happen to prevent anyone from lodging more than a superficial, cursory dissent. Turley’s demanding that critics of the order just disagree and move on: don’t comment on how far the opinion deviates from legal precedent, don’t comment on how the judge acted without any apparent jurisdiction, and don’t dare point out how any of this might be a function of her lack of experience or motivation to cater to the person with the best chance of advancing her career!
It’s intellectually insulting to treat “the judge applied a three-prong test when a four-prong test is called for” with “judge without jurisdiction made up new law in groundless opinion.” Poor decisions are not all equally bad. Some are mistakes, some are understandable differences in interpretation, and some are wildly off-base.
When something’s wildly off-base, it’s not a sin to try to figure out why.
As always, MSNBC regular (and columnist for Above the Law and The Nation) Elie Mystal struggled to outdo a panel assembled to attack this jurist:
“She’s biased and corrupt. Like, I don’t know what to tell everybody anymore. Like, I’ve been saying this since he took office. When you allow Republicans to control the courts you get nothing. Trump judges do not believe in the rule of law, they do not believe in precedent, they do not believe in facts, they do not believe in logic—they just believe in whatever’s going to help Donald Trump, and they’ve proven it again and again and again.”
I’m on record that Elie did overstep here. A number of Trump-appointed judges dropped his Big Lie voter suppression efforts like toxic hot potatoes, so it’s not fair to paint them all with the broad corruption brush.
That said, this statement is more accurate than not. Mystal claims Trump judges don’t believe in the rule of law… because the lion’s share of them were selected by the Federalist Society specifically for their propensity to disregard precedent. Trump explicitly said of the election that “I needed better judges” and bemoaned that he didn’t pick the right people for those seats. Trump is the one saying that the Republican judge machine is intended to operate as a quid pro quo… don’t blame Mystal for acknowledging that.
So when a judge issues a comically inept opinion to protect Donald Trump, contextualizing that within her ascending to the bench as an inexperienced hack for an organization beholden to Donald Trump is salient analysis.
But Turley’s got other people he’s mad at:
Harvard Professor Laurence Tribe declared that an order to appoint a special master to review the documents is analogous to the Dred Scott decision as an abuse of judicial power.
Comparing a special master to upholding slavery! That’s crazy talk! I wonder what Tribe said exactly:
“Cannon’s order will go down as part of the judicial anticannon — the body of decisions, like Dred Scott or Korematsu, that lawyers use for generations to teach students how NOT to wield the judicial power.”
Oh. Well that’s completely accurate then. He’s not substantively comparing this opinion to Dred Scott or Korematsu. He’s saying these are cases that have entered the language as shorthand for undermining the rule of law to nakedly advance political goals and this opinion will join that list. That’s probably accurate.
One can reasonably disagree with Judge Cannon’s order, but it is designed as a check on government power and abuse. Yet, Tribe believes it is akin to a decision allowing the government carte blanche to imprison Americans based on race or nationality.
Again, Jonathan Turley thinks you’re stupid.
Judge Cannon was faced with a breathtakingly broad search that appears to have seized attorney-client material and personal material, including passports and personal medical information. She is allowed to conduct in camera inspections of such documents but elected to appoint a special master to conduct such reviews.
Now he’s deliberately misleading his audience. There’s no evidence that attorney-client privileged or personal material was seized improperly. The warrant seems to have authorized this in order to show the carelessness of Trump’s commingling with national security information and the DOJ screened the material with a taint team. If there’s any document that Trump can specifically identify that the DOJ is still using then the judge can consider that. A blanket order like this is a joke.
And, more to the point, the order even recognizes that this is a red herring and conjured up a potential executive privilege that Trump might have in documents that the executive branch doesn’t want him to have.
The documents will remain under secure controls of the government and the national security investigation will continue unabated.
This is also misleading. She allowed the Director of National Intelligence to continue evaluating what was taken but that’s NOT the DOJ investigation into Trump’s alleged mishandling of national security documents.
The attacks on Judge Cannon follow a familiar pattern. It is not enough to disagree with a judge. You must attack the jurists as unethical or corrupt — and standout in your rhetoric. Notably, some of these same experts denounced Trump for attacking jurists as “Obama judges” or ideologues when they ruled against him. Now it appears perfectly acceptable in dealing with Trump appointees.
Once again, we play the game “Inveterate Charlatan Or Utter Moron?” Turley certainly seems like an ethically bankrupt grifter using his sepia-toned credibility to make a play at cable news fame, but then he says something so astoundingly stupid that you wonder if he just doesn’t even get what’s going on.
Back to propaganda studies, this is an instance of “every attack is an admission.” Republicans spent years blasting milquetoast former prosecutors appointed by Obama as dangerous radicals because the GOP intended to flood the court with stuffed-robe FedSoc avatars. It’s about setting the tone and nurturing the sort of useful idiot who would whine about mutual respect when one side puts up veteran Biglaw partners and the other puts up associates who can’t read dictionaries.
Is Turley just the dumbest mark in the legal long con?
This question continues to keep me up at night.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.