It didn’t take long. On July 1, Supreme Court Justice Clarence Thomas wrote a lengthy concurring opinion in Trump v. United States making it clear that he thought the special counsel was appointed unlawfully and lacked authority to bring cases against Donald Trump. US District Judge Aileen Cannon, presiding over the classified documents case in Florida, got the message loud and clear. All she had to do was ignore precedent and put the Southern District of Florida heading on Thomas’s concurring opinion — and sign it, which she did Monday. Poof! The case against Trump for wrongfully retaining some of the most sensitive of our national defense secrets was gone.
This was the most straightforward case of all the cases brought against the former president, and among the most serious — the unlawful retention of national defense documents. He was accused of holding them at his Mar-a-Lago estate in Palm Beach, Fla. And while Trump surely would have tried to shoehorn the Supreme Court’s immunity decision into this case, it was a long shot since the unlawful retention occurred after he left the White House.
And the timing of Cannon’s decision? How was it she managed to get this decision out quickly, unlike the numbers of truly specious motions she has been sitting on for months? Oh yes, Thomas’s opinion was a great first draft. And what better time to issue the decision than the day Republicans were starting their nominating convention, allowing them to crow about Trump-appointed judges who delivered for him — including Cannon. She’s no doubt auditioning for a higher court if Trump is elected and may be a lock with this decision.
Here’s the problem: A district court judge cannot base a decision on a concurrence, let alone one written by only one judge. District court judges have to follow the existing precedents found in the formal opinions of the court, even when they disagree. Only the Supreme Court has the authority to rip apart precedent (as this court has done with alarming speed).
And this concurrence was outrageous. It was about an issue that Trump did not raise in the immunity case, that the parties did not brief, and that was not relevant to the immunity question presented to or decided by the court.
Judges are not supposed to issue advisory opinions — “by the way, in case you are interested, here’s what I think about x or y.” They judge the issues presented to them. Worse, Thomas’s concurrence was inconsistent with the decisions of all the courts that considered the issue. His opinion was so far from the mainstream of the precedent, the bedrock principles of judging, that no other member of the conservative majority joined in. And, yes, this was a concurrence that if adopted by the court would wipe out the cases Thomas had no business participating in at all, such as the January 6 case since his wife was present at the Ellipse and texting then-White House chief of staff Mark Meadow about the election’s steal.
The only good news from Cannon’s ruling is that she decided it. That will allow an appeal by the Justice Department to the 11th Circuit Court of Appeals which is likely to reverse her; they too are bound by precedent. Since this would be her third reversal — they reversed her bizarre rulings before Trump’s indictment — they could finally remove her as they have done in other cases.
But that’s the only good news. The classified documents case will take years to try, and should Trump win the presidential election, it will probably be dismissed by his Department of Justice. The message that dismissal would send — about how seriously we take the disposition of national defense secrets — would be chilling.
Then there is the ripple effect on other courts. In an ordinary case, no district court judge would dare to undo decades of precedent. But with this Supreme Court there is no ceiling; all precedents are up for grabs. Lower court judges under a wayward Supreme Court — mainly judges appointed by Trump — apparently have permission to consider anything, precedent be damned.
Many — including me — have speculated about Cannon’s motives in delaying the case, dignifying motions that have no merit with hearings or briefings and ignoring others. Is she incompetent? Not likely given her academic background. Is she just inexperienced? Inexperienced judges default to precedent, as judges are supposed to do. Is she biased? Now we know. An ethically compromised Supreme Court justice issues a wholly illegitimate concurrence — and Cannon jumps to attention.
Nancy Gertner is a retired US District Court judge and senior Lecturer at Harvard Law School.