When Donald Trump flooded the federal bench with judicial appointments, a leading critique was that they were Federalist Society clones who favored muscular executive power and rejected what some perceive as meddling by the courts in executive branch affairs.
Judge Aileen Cannon’s recent orders in the fight over the classified records the former president is accused of keeping at Mar-a-Lago have turned that perception on its ear.
A 41-year-old former federal prosecutor and Trump nominee, Cannon issued a series of decisions last week granting unusual requests from the former president in the probe over the storage of files in his home.
The judge appointed a semi-retired jurist to oversee the the review process, ordered that Trump’s attorneys be given copies of everything that was taken and, in the government’s view, effectively halted the investigation by declaring that prosecutors and the FBI could not use the seized records to question any witnesses.
The rulings were widely chastised by a wide array of legal experts, including many from the right, who noted how far out of the conservative judicial mainstream they were. Cannon, during her confirmation process in 2020, had included on her relatively-thin resume that she’d been a member of the right-leaning Federalist Society for a decade-and-a-half, since around the time she entered University of Michigan law school.
However, many lawyers who support sweeping executive authority say despite that affiliation, aspects of Cannon’s directives appear at odds with the prevailing views among the prominent conservative lawyers’ group.
“A robust view of executive power says it’s really not the job of the courts to decide what’s classified or unclassified,” said University of California Berkeley Law Professor John Yoo. “I think most people who agree on the unitary executive also think it’s the president who decides what’s classified and unclassified–the current, incumbent, sitting president.” [Continue reading…]