The latest in the Mar-a-Lago search drama is the ruling by the MAGAist federal judge Aileen Cannon that the Department of Justice (DOJ) must stop its investigation until a “special master” can review all documents to see if “attorney client privilege” and “executive privilege” are violated in any of them. Most U.S. workers and nearly all socialists are ignoring the crisis swirling around the FBI search of Trump’s Mar-a-Lago estate. They couldn’t be more wrong. This whole crisis really reveals the political crisis of the US capitalist class. Regarding this particular ruling: It does not bode well for inevitable federal court rulings regarding upcoming elections, both this year and even more so in 2024.
First of all, let’s be clear what documents we are talking about:
- Documents that detailed the defense plans and the nuclear weaponry of a foreign
- Documents that would reveal who U.S. spies are in other countries.
- Documents that would reveal the methods the US “intelligence community” uses to intercept internal communications of other governments.
This is not a matter of supporting the spying or “intelligence” methods of the US government. It’s simply a matter of understanding the unprecedented political crisis of the US ruling class, when a former – and possibly future – president may be engaged in espionage against the “executive committee” of his own ruling class! Even a Fox News host (of all people) speculated on whether Trump was planning on or has actually sold these secrets to the Saudi or Russian government.
To repeat: We are talking about a former president who might actually be engaged in espionage for profit against the government that he led! It is difficult to see any other reason why Trump was so determined to hold onto the following highly, highly secret documents:
Historical Distortions of Ruling
To understand the possible future implications of this ruling, we should start with understanding the legal issues involved in Cannon’s ruling as well as the ruling itself.
Cannon has ruled that the government must stop all review of the seized documents until a supposedly impartial appointee – a “special master” – can review them.
A Trump appointee, Aileen Cannon’s ruling is so one-sided that it can only be understood as a political document. She reviews the history of the search warrant that was carried out on August 8, but she ignores the repeated lies and cover ups that Trump and his legal team carried out for nearly a year and a half. Starting in January of 2021, first the National Archives and then DOJ tried to get Trump to turn over the documents that Trump had stolen. Time and again, Trump and his legal team refused to do so. Time and again they lied to federal agents, claiming they’d given the federal government all the classified documents.. Any regular citizen would have already been charged with the crime of lying to the feds.
“Attorney Client Privilege”
Part of the basis for her ruling is “attorney client privilege” – in other words, that a client has the right to have private communications with her or his attorney. But this privacy does not apply where the attorney and the client together conspire to commit a crime. That is exactly what appears to have happened here, with Trump’s legal team conspiring with Trump to lie to the feds and to illegally keep classified material.
The other basis of her ruling is “executive privilege”. The whole theory of “executive privilege” is based on the separation of powers of the federal government. According to the Constitution, the executive branch must have a degree of independence from the legislative branch. This means that the legislative branch cannot interfere in some functions of the executive branch. But in this case, the legislative branch – congress itself – is not involved! It’s one wing of the executive branch investigating a former president! That, on the face of it, rules out executive privilege, never mind the fact that Trump is no longer the president.
From the point of view of the interests of the US capitalist class, there are also two critical problems with the appointment of a “special master”: First is that this individual would have to have the very highest security clearance. Even some of the FBI agents who raided Mar-a-Lago on August 8 weren’t cleared to view those documents. How both sides in this case can agree on such an individual is hard to see. The second problem involves the fact that while the intelligence community was allowed to continue reviewing the material, the DOJ was prohibited by Cannon’s ruling. But a key task of the US intelligence community is to find out as quickly as possible whether any of the information in these documents was passed on and if so to whom. In other words, damage control. That can only be done by the DOJ, which is now prohibited from viewing the documents.
Bill Barr Critical
Cannon’s decision has many legal experts scratching their heads. According to the N.Y. Times, these include Paul Rosenzweig, a former homeland security official in the George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton and Peter M. Shane, who is a legal scholar in residence at N.Y.U. Even long time Trump enabler and co-conspirator, former Trump attorney general Bill Barr, called the ruling “wrong” and “deeply flawed”. It’s not that Barr opposes any of the political goals of Trump; it’s just that he sees what Trump is doing is completely outside the control and the interests of the US capitalist class, which is a sign of the crisis of the US capitalist class itself.
Cannon and MAGA Judiciary
We should consider who Aileen Cannon is and what she represents:
According to Wikipedia, before working for the federal government, she worked for the law firm Gibson, Dunn & Crutcher (now Gibson Dunn). This is a huge international law firm that represents such clients as Chevron in its $27 billion environmental dispute in Ecuador. A truly slimy firm, in 2007 the US Supreme Court found them guilty of “legal thuggery” in one case. As is the case with many of Trump’s appointees, Cannon is a member of the far right wing Federalist Society.
Cannon is not some lone renegade. She is one of the 228 federal judges appointed by Trump – 28% of all such judges. As we know, the Supreme Court is packed with a Trump/far right Republican absolute majority.
2024 and Future Court Rulings
What does this ruling portend for the future?
At present, we are seeing a concerted drive to get MAGA politicians elected into state offices that run the elections. These are usually the state secretaries of state. This drive coincides with the voter suppression and, even more important, the vote nullification bills currently being considered or already passed. We now know that these same MAGA Republicans tried to send fake electors to Washington DC to overturn the 2020 presidential election results. That’s an indication of the lengths they will go to.
2024 could be different. It is foolhardy to ignore the plans the MAGA Republicans are now drawing up to force their candidate in as president. The MAGA state officials will be intimately involved. Then there will likely be court challenges, which will certainly go to the Supreme Court. The MAGA Supreme Court judges – 5 hard core ones (a majority) and one who is concerned about the reputation of the court but sympathizes with the other five – are likely to rule that whether they like the actions or not, it’s up to the states to run the elections in any way they see fit. If that’s not good enough, they will throw the matter to the House of Representatives for a final decision. The House will vote based on one vote for every state delegation, no matter how many are in that delegation. California, with 53 Representatives, gets one vote. Arkansas, with four Representatives, also gets one vote. Even when the MAGAists were a minority in absolute numbers, they had the majority in over half the state delegations. So, even if the Democrats maintain a majority after November, the MAGAists will be able to install their own person as president. Then they will have full control over the judicial and executive branches and very possibly over the legislative branch also. All that will remain will be for the MAGA president to appoint more Aileen Cannon’s to his cabinet and we will have a serious and immediate threat to the democratic form of rule in the United States. Capitalism cannot solve any of its problems, no matter what form it rules through, whether it be democracy or one person dictatorship or outright fascism. The point is that it’s far more difficult to resist the depredations of capitalism and to organize its overthrow under the latter two forms of rule.
Update: On reading further, it seems this ruling and in fact the entire process is worse than I ralized. In the first place, Cannon explicitly says that Trump must be treated differently because he is a former president. That comes close to meaning that he is above prosecution because any prosecution for any crime would be subject to these same challenges. DOJ also faces a serious challenge in appealing the ruling. That’s because the appeal would go to the 11th Circuit Court of Appeals. Six of the eleven judges there are Trump appointees and from there an appeal would go to the Supreme Court and we know the composition there. So the situation is this: In nearly any case, Trump could find a friendly court in some part of the country. And the fact is that the judges are now increasingly interfering, making political rulings. So the MAGAists are now a long way towards having already seized control of the government.The entire process, though, is based on the assumption that the U.S. working class will remain divided and more or less passive, especially in the political arena. The way to reverse this process is through a working class mobilization. How and through what channels that occurs is the million dollar question.