When Judge Aileen Cannon handed down her latest ruling in the prosecution of Donald Trump for stealing classified documents, many legal observers immediately understood the shady gamesmanship lurking behind it. She did, technically, rule against Trump by refusing to dismiss the case—but actually made it easier for herself to kill the case later, or to steer a jury toward an acquittal.
Trump’s lawyers had argued that the Presidential Records Act, which was passed in the wake of the Watergate scandal, allowed him to reclassify national security documents as his personal property. That’s a grotesque misreading of the law’s history and intent, and Cannon appeared to agree, declaring that the PRA “does not provide a pre-trial basis to dismiss” the case. The media reported this as a partial “win” for special counsel Jack Smith’s prosecution team.
But as constitutional scholar Laurence Tribe put it, this was a “pretend” ruling against Trump that ended up “reserving” Cannon’s ability to decide the case for Trump in a way that cannot be appealed. In short, Cannon seems to recognize that as she moves toward that endgame, it’s essential to maintain plausible deniability throughout.
“Judge Cannon is being canny in her Trump-protective approach,” Lee Kovarsky, a law professor at the University of Texas at Austin, told me.
Trump doesn’t seem to have noticed the “canny” part. He doesn’t bother hiding his expectation that Cannon—who was appointed to the federal bench by Trump in 2020—will put a heavy thumb on the scale in his favor. That complicates Cannon’s efforts to maintain that objective legal aura she’s striving for.
Which points to a larger pattern: On numerous fronts, Trump’s allies—overt and tacit alike—seek to run interference for his corruption and likely criminality in ways that allow them to maintain a veneer of respect for the rule of law. But Trump keeps demanding that they openly pervert the rule of law on his behalf, not least because a central feature of the MAGA movement is explicit contempt for the very idea that the law should apply to him and his supporters at all.
After Smith requested Thursday that Cannon rule quickly on the Trump team’s claim that the PRA absolves him of wrongdoing, Trump posted this on Truth Social:
Deranged “Special” Counsel Jack Smith … should be sanctioned or censured for the way he is attacking a highly respected Judge, Aileen Cannon, who is presiding over his FAKE Documents Hoax case in Florida.… He shouldn’t even be allowed to participate in this sham case, where I, unlike Crooked Joe Biden, Hillary Clinton, and all the rest, come under the Presidential Records Act. I DID NOTHING WRONG, BUT BIDEN DID, AND THEY LET HIM OFF SCOT-FREE. HOW DID THAT HAPPEN, JACK? A TWO TIERED SYSTEM OF JUSTICE. ELECTION INTERFERENCE!
Everything here is exactly backward. President Biden was cleared of wrongdoing by a special counsel appointed under Biden but originally nominated as a U.S. attorney in 2017 by Trump. Whereas Robert Hur could not find evidence that would persuade a jury of criminal wrongdoing, Smith secured an indictment against Trump from a grand jury of the former president’s peers. What’s more, a judge considered reams of evidence that Trump had improperly stashed classified documents at his Mar-a-Lago resort, concluding that probable cause existed to authorize a search of it.
Yet in Trump’s hands, none of these details matter—he steamrolls right over them—because the sum of his message is that, by definition, Biden is guilty and Trump is innocent. As with his ceaseless attacks on Smith and everyone else trying to hold him accountable to the law, any such efforts are to be presumed illegitimate by virtue of the fact that he’s their target. That’s also the message of Trump’s attacks on the family members of officials involved in cases against him: not just that he’s trying to prevent the application of the law to himself by any means necessary, but also that he’s flaunting it.
Similarly, Trump has no basis for declaring Cannon “highly respected” other than his correct perception that she’s on his side.
Having all this out in the open is the last thing Cannon wants because, by all indications, she’s striving to appear neutral in the case—while sneakily leaving the door open to help Trump later. To wit: Cannon didn’t rule on Trump’s claim that he was authorized under the PRA to take the documents. Had she done so in his favor, as many legal experts noted, it would have been subject to appeal. But by deferring that question, Cannon has given herself two options later: Instruct the jury at trial to take that argument seriously into account, making acquittal more likely, or dismiss the case herself on those grounds.
Such a move would place Trump’s acquittal beyond appeal, as it would transpire after a jury was seated. Given that this comes after a string of tortured and inexplicable rulings in Trump’s favor in the case—Jonathan V. Last describes Cannon as effectively a “MAGA judge in the tank for Trump”—it can no longer be denied: She really may be preparing to take such action, which would kill Smith’s case for good.
“By refusing to decide the PRA issue now, she avoids near-certain reversal,” said Kovarsky of the University of Texas. “By deferring it until after the jury’s sworn, she can make appellate correction impossible.”
To the degree that Trump makes it explicit that he fully expects Cannon to scuttle the case, it complicates executing this game with credibility.
We see this pattern regularly. Many Republicans have resisted holding Trump accountable for the January 6 insurrection, but for them, the sweet spot is to say that of course rioters who are actually convicted of breaking laws should pay a price; it’s just that January 6 was mostly a peaceful protest and Trump himself is the victim of a witch hunt!
Trump insists on an entirely different proposition: Even those convicted in a court of law for January 6 are victims, martyrs, “hostages.” When Trump suggests he will pardon them, it’s as if he’s observing something as obvious as the weather: It goes without saying that the law doesn’t apply to his supporters. That leaves no space for Republicans to allow that the workings of our legal system with regard to January 6 are legitimate in any way.
Meanwhile, this week in Michigan, Trump posed with law enforcement officers while denouncing Biden’s border policies. Many noted the absurdity of this, given that Trump has vowed to pardon people who attacked cops on January 6, including some who were directly involved in some of that day’s most vicious violence against them.
But Trump sees no need to account for this absurdity. He hails the heroism and bravery of cops, as long as they support him; he hails the heroism and bravery of people who viciously attack cops, as long as those people also support him.
All this is a feature of autocratic politics, which turns on the idea that the system is hopelessly corrupted and perpetually out to drag the strongman down, and the only political arrangement that’s unsullied and virtuous is the bond between him and his followers.
Just as Trump openly characterized the attorney general he appointed as his personal attorney, he sees Cannon as his judge, and cops who support him as his cops. “The reason he tells his supporters all this explicitly is he’s conditioning them to turn away from democracy,” says Ruth Ben-Ghiat, an expert on strongman rule. “He’s conditioning them to accept authoritarian modes of governance and the idea of the leader as unbound and unaccountable.”
Cannon does not seem to relish being perceived as a servant of this twisted ethos. Trump doesn’t seem to care; he’s openly telling the world exactly what he expects her to do for him. We can only hope Trump has left her no option but to prove him wrong.
