Oh Mea Amici!
Bringing democracy to court
I investigated and helped prosecute a lot of criminal cases involving political figures. Litigation involving wealthier, better connected people often magically invoked novel legal issues that somehow never arose in the courts of the typical defendants who came before them. For example, our prosecutors once spent months debating what it meant to ‘execute’ a search warrant. It was curious how among the probably millions of search warrants issued prior to this particular case, not one court thoroughly investigated the meaning of the word.
Even after courts made judgments, political defendants found ways to question them, sometimes in the middle of the prosecution — as opposed to on appeal when almost everyone else gets the opportunity to raise their issues. One time, for example, my coworker — an investigator with decades of experience investigating murders — pithily advised me that he had never heard of a court holding hearings on a motion to reargue barely weeks following the start of pre-trial motion practice. Imagine his surprise later when the defense filed a motion to reargue the first motion to reargue after they lost the latter, and the court granted it!
Given this experience, heightened levels of judicial chicanery should come as no surprise when the current defendant once held the highest political position in the world. Alas, even anticipated litigatory extremism can exceed expectations. Welcome to the Southern District of Florida, where the assault on law is rivaled only by that of the fifth circuit and the Supreme Court. Aileen Cannon, a federal judge appointed for life by Donald Trump very late in his presidential tenure, is overseeing the criminal case of… well… Donald Trump. Let no one question the integrity of the American justice system! But I digress…
Back in March, this fair-minded jurist granted leave to submit amicus briefs in Trump’s case, an unusual move at this stage in a criminal prosecution. Amicus briefs are legal filings submitted by amicus curiae, or ‘friends of the court.’ Almost always, these types of submissions occur at the appellate stage or before the Supreme Court. This is because they usually argue on issues of public interest — the types of legal questions courts decide that may affect policy for huge portions of the population for years to come. Often, amici comprise scholars of disciplines with expertise on the subject matter, such as historians who comment on what the Founders had to say about the right to bear arms, or national security experts opine on presidential immunity related to classified documents.
Nevertheless, Judge Cannon opened the floor for various vaunted scholars to insert their intelligent analyses into Trump’s criminal affairs. In one instance, she feels it necessary to hear what the America First Legal Foundation (AFLF) has to say about the Presidential Records Act (PRA), a law entirely irrelevant to the criminal case that nonetheless confounds and confuses this cautious and prudent arbiter of the law. A dissection of AFLF’s ludicrous arguments may come later. For now, suffice it to say that they are predicated on extrapolations of the brilliantly structured and carefully researched assertions presented on Fox News, Newsmax, and probably in Steve Bannon’s laundry room/podcast studio. (If we can associate the word ‘news’ with either of those propaganda outlets, surely we can speculate that Steve Bannon might sometimes wash his innumerable shirts.)
The America First ‘Legal’ Foundation is led by the ideological descendant of U.S. Representative Albert Johnson, who in the 1920s worried about “stream[s] of alien blood” poisoning the indigenous white society of America. His white supremacist progeny, Stephen Miller, proclaims to possess expertise on the PRA, acquired during his apparent free time between Fox appearances where he exhibits stoic emotional temperament while proffering his Nostradamusian warnings about swarms of brown people coming from Latin America to replace his white brethren.
Another group presenting a brief to Cannon’s court is Citizens United. Yes, that Citizens United. You know, the organization that convinced a Supreme Court led by its infamously corrupt wordsmith that money is speech. I haven’t the time here to breakdown the moral, intellectual, or legal bankruptcy of that ‘justice’ or case, but you can get a taste of his odiousness in an article I wrote here. Anyway, he’s dead now, but his legal scions strive to uphold his malfeasance, earning equal amounts of scorn from the sophisticated world as they go. But again, I digress…
Citizens United (the organization) has a lot to say about the legality of the appointment of Special Counsel Jack Smith. Its lead author, Edwin Meese, was attorney general under the failed Reagan administration, and a co-conspirator in the destruction of the middle class. The “Meese Amicus,” as Jack Smith’s office poetically calls it, argues that Smith’s appointment violated the law and he thereby “wields extraordinary power, yet effectively answers to no one.” Sounds suspiciously like a certain corrupt institution we know.
Anyway, Smith eviscerates the tired arguments in Meese’s brief, noting that the theories asserted within are neither “novel” nor “meritorious,” and that every court has rejected them including SCOTUS itself. The Citizens United brief amounts to about 15 pages of legalese that boils down to “no fair!” Indeed, in its conclusion it refers to Jack Smith as the “classic emperor with no clothes.” Then — for some reason — compares Smith’s authority to prosecute to that possessed by Tom Brady, Lionel Messi, or Kanye West. What a weird, feebleminded flex.
To Cannon’s credit, in one of the vanishingly rare instances that one can say that, she did deny permission to hear a brief by Jessica Nan Berk and Hilda Tobias Kennedy. This is only news at all because one should never try to predict when Cannon might actually make a ruling based in actual law or sense.
Here, the two filers describe themselves as “disabled, pro se, indigent, private citizens, [and] elderly.” Without intending to pick on any person for falling into any of those categories, the notion that these two thought their delirious exposition should be heard in a federal criminal trial says, perhaps, more about the judge presiding over it than about them.
If accepted, they had intended to provide “knowledge and experience the Court may find helpful.” Their Gloucesterian insight commenced with this:
[T]he funding the state has used, legal or not, to prosecute the Defendant is disproportional to the acts for which others in his same category and class have gone unpunished for the same crime as explained by the Defendant fillings [sic] without the semantics by the opposition.
Um… wut? It is no wonder Cannon disallowed this drivel. Even she probably couldn’t figure out how to extract from it some juridical chimera to heft in Trump’s favor. Maybe an evening with a certain kind of brownies and a VHS of Fear and Loathing in Las Vegas would have helped.
But Berk’s and Kennedy’s pro seing wasn’t finished. They also foisted concerns about the “misuse of government funds that do not support the people’s interest of justice but is more political in nature.” Prosecuting a thief of classified documents of the highest level of secrecy, who shared them with associates of unknown agendas or affiliations and then obstructed the government’s attempt to lawfully claw back said secret documents, for these two ‘friends of the court,’ exhibits a political problem lacking any substantial interests related to justice. As such, they averred, these crimes warrant merely “a fine and community service.”
In their view, this prosecution is happening to “imprison former President Trump only for the period of the election cycle since it has no money to continue after this year” [emphasis in the original]. I guess Berk and Kennedy suppose that Jack Smith’s office pays for the incarceration costs of defendants it convicts out of its own budget? Allowing the prosecution of Trump to continue, they concluded, would perpetuate the miscarriage of justice similarly (I guess) to the miscarriage of justice they themselves allegedly have suffered.
I spent a few extra paragraphs on this last brief not to specifically mock a 93-year-old and a Holocaust survivor (these are their own self-characterizations). The point is that the social media comment they copied and pasted into a legal document is utter nonsense, the pining of two people whose aging brains have no doubt suffered advanced rot from their excessive exposure to the pro-Trump Goebbels machine. It contains no legal argument, bristles with imagined or irrelevant harms, and — frankly — has the scent of elder abuse committed by Trump sycophants who probably put them up to writing or at least signing it.
But the true venality behind the submission of this brief was the supposition by someone — whether them or Trump cronies — that a sitting federal judge would give it even a fleeting consideration. Unfortunately, such a belief was not without merit. Cannon has been overturned in excruciating fashion twice already; the few orders she has issued have confounded legal scholars across the board, and her actions have been described as “wildly lawless” and “dopey and constitutionally dubious.” Why not try to insert additional demented arguments into this mockery of a criminal case?
One of the three branches of the United States government (at least) is an
embarrassment of epic and perilous proportions. Its highest court is littered with ideological extremists unafraid to openly take bribes from their billionaire overlords. Its so-called ‘justices’ invoke the viewpoints of people like witch-hanger Matthew Hale to support their opinions, and they defer to the High Court of Chancery in England as if it were precedential. District courts issue national injunctions driven by their warped religious views with the intent to overturn decades of established law for purely misogynistic or otherwise discriminatory reasons. State Supreme Courts find no problem with citing portions of the Bible as if that Grimm anthology bears any appositeness to secular jurisprudence whatsoever.
Aileen Cannon is just one judicial cancerous tumor among a national stage-4 metastasis. But at least she is willing to hear anyone’s thoughts on Trump’s criminal prosecution before she rules — if she ever does — no matter how inane the argument or insane the arguer. Yay for democracy! I guess.
Robert Vanwey was Senior Technical Analyst for the New York State Division of Criminal Justice, specializing in investigating public corruption, technology and financial crime. He also has a Juris Doctor and Master degree in history.
Be sure to check out Just Say We Won, his detailed narrative of Trump’s attempted soft coup to overthrow the United States of America, and According to Trump, Any President can do Anything, Including Kill You, a careful analysis of Trump’s immunity arguments made before the Supreme Court. Or check out the Evidence Files Substack for an exploration into technology, science, aviation, and the Himalayas, where Rob frequently lives and works.
