Is Aileen Cannon Seriously Going to Shut Jack Smith Down?

Starting today in her Florida courtroom, Judge Aileen Cannon, whom Trump appointed to the bench during his waning months in office, is hearing arguments about whether Jack Smith’s appointment as special counsel is constitutional. It’s staggering that this is even happening, for a couple reasons.

First, Donald Trump’s legal team is arguing that Attorney General Merrick Garland had no legal authority to hire Smith. This is absurd. Attorneys general—and, sometimes, presidents and the D.C. Circuit Court—have been appointing special counsels since Ulysses Grant tabbed John Henderson to probe the Whiskey Ring. Since the 1970s, The New York Times reports, the courts have routinely rejected such challenges. The Supreme Court upheld the appointment—by Robert Bork, no less—of Leon Jaworski as special prosecutor for Watergate. Other similar challenges have been tossed.

Second, when courts have considered these petitions, they’ve usually done so on the basis of written arguments. To schedule a hearing that will extend over two days is … is what, exactly? A show of fealty to Dear Leader, probably. In addition, Cannon is allowing three lawyers who have filed amicus briefs to make 30-minute oral presentations. As one law professor told the Times: “The fact that Judge Cannon granted the amici request for oral argument seems to suggest that she is seriously considering the constitutional argument against the appointment of the special counsel.”

So, yes. Cannon is entirely capable of ruling that Smith’s appointment was unconstitutional. Lord knows, she has shocked us before. After the FBI Mar-a-Lago raid, she barred prosecutors from using any of the evidence collected there pending a review by a special master. Earlier this year, she issued an order asking both legal teams to submit preliminary jury instructions. The order seemed to embrace a key tenet of the Trump legal defense. There’s a lot more.

Next Monday or Tuesday, the arguments about Smith’s appointment will wrap up, and sometime thereafter, Cannon will render her decision. Can you imagine this relatively minor judge, one of 29 federal judges for the Southern District of Florida, who sits in the great metropolis of Fort Pierce, can hold the fate of the republic in her hands like this?

Well, she does.

And remember—if she decides that Smith’s appointment was unconstitutional, that deep-sixes not just the classified documents case over which she’s presiding but the even more important (in my view) January 6 insurrection case that’s supposed to be heard in Washington, pending the Supreme Court’s decision on presidential immunity. (The Justice Department would presumably appeal an adverse determination, so the Smith appointment matter may also end up at the Supreme Court one of these days.)

It’s just mind-boggling to think about this. It’s just never been more obvious that a judge is doing the bidding of the president who appointed her. It’s worth taking a look, by the way, at her confirmation vote before the Senate. It happened on November 12, 2020, five days after Joe Biden was finally declared the winner of the election. She was confirmed 56–21, with 12 Democrats joining the Republicans to elevate her. And 23 Democrats, including Judiciary Committee Chairman Dick Durbin, didn’t even vote.

So that’s the indifferent way she got to the bench in the first place. And now, she has the power to let a man who stole national security secrets and spent months ignoring polite requests from the FBI to come down to Palm Beach to see what he had, and who egged on a violent mob to break into the Capitol building and try to hang his own vice president get away with it all.

And of course there’s the Supreme Court too. Remember the high court’s timeline. The court announced that it would take up the immunity case on February 28. It heard the arguments almost exactly two months later, on April 25. And now here we are, creeping up on two months after that. And still no decision.

Why is all this being slow-walked? It’s obvious enough. They’re trying to help reelect Trump and hasten the arrival of the Christian nationalist post-democratic order. Federal judges and Supreme Court justices can read newspapers and polls. They’ve seen the polls showing Trump’s felony conviction in the Stormy Daniels case is hurting him, especially with independents, and they have no doubt seen this new crop of polls showing Biden creeping into the lead—Thursday, for the first time this year, Biden edged ahead of Trump on the FiveThirtyEight poll tracker. It’s 0.1 percent, but it’s a lead.

So this is what we’re going to see over these next months. The Trump campaign will be getting a push from corrupt right-wing judges, a right-wing propaganda network (actually, two, three, four, or five of them, depending on how you count), and a bunch of CEOs who want their next tax cut more than they value the continuing survival of the world’s oldest democracy. And Aileen Cannon is the most potent symbol of the whole corrupt network: She cares nothing about the law and the country’s best traditions, and there is no way for any of us to do anything about it.

Well, there’s one thing: Vote, in huge numbers. We’re still enough of a democracy that that matters.

Those of you of a certain age will recall the phrase “the Silent Majority,” made popular by Richard Nixon—and his crooked, cash-thirsty Vice President Spiro Agnew—in 1969 to refer to those middle-class Americans who weren’t out in the streets making noise about Vietnam or civil rights but sitting quietly at home seeking normalcy, law and order, and someone to save the country from extremism. Pat Buchanan, the old Nazi war criminal defender, has claimed that he placed the phrase before Nixon in a memo and the president seized on it.

Republicans have used it ever since. It was used by Ronald Reagan. It was employed by Rudy Giuliani and Mike Bloomberg (when he was running, as a Republican, for mayor of New York). Donald Trump gave it a spin in 2016. Overseas, Tory David Cameron and rightist leaders in Italy and Portugal have taken it up.

No candidate on the broad left has ever, to my knowledge, invoked the phrase. It’s high time that changed.

Earlier this week, you may have noticed, there was a special election in Ohio’s 6th congressional district, which runs from Youngstown to the West Virginia border. The Cook Political Report rates that district R+16, meaning a Democrat wins it about as often as Trump emits an untangled sentence. In 2020, Trump carried it by 29 points.

And Tuesday? The Republican still beat the Democrat—but by single digits. Michael Rulli, the Republican state senator who won the seat, spent $570,000. The Democratic candidate, an Air Force veteran who most recently worked as a waiter, spent $7,000.

What’s this have to do with the Silent Majority? I suspect maybe a lot.

If an amateur Democrat who couldn’t put two metaphorical nickels together can come within nine points of an experienced pol Republican in a district as scarlet-red as the Buckeyes’ jerseys, something is up. And this result is not an outlier. As Aaron Blake pointed out in The Washington Post, there have been six special congressional elections this cycle and the Democrat has outperformed in four of them, the Republican in just one. In the sixth race, Blake notes, the results (the Democrat won) closely mirrored the 2020 results, but “Democrats swung the results by double digits from the 2022 race for the same seat and flipped the seat blue.”

Simon Rosenberg, the high priest of Democratic optimism with his Hopium Chronicles Substack, constantly preaches: Don’t look at the polls; look at election results. We do not of course know whether his optimism about this November will be validated. We do, however, know that he (and pretty much he alone) was correct that the Democrats would hold their own in the 2022 midterms. He was right then, and he’s been right about most of these elections ever since.

So, a theory for you: Maybe, just maybe, there is an army of Americans out there who may not call themselves liberal or progressive but who are anywhere from sort of turned off to massively repulsed by MAGA. And while Trump and Fox News and Steve Bannon and Marjorie Taylor Greene and all the rest of them spend their days fulminating about America dying and hyping the authoritarian tsunami coming—talk that the mainstream media picks up and that dominates our discourse—there are in fact millions of Americans sitting quietly at home who detest these histrionic harbingers of hatemongering (a Safire-esque turn of phrase for you, since I mentioned Agnew).

They are out there. And they, I submit, are your new Silent Majority.

They’re not all liberal. But they definitely support abortion rights. They’re not rushing to join trans rights groups. But they want people to be treated with empathy and tolerance. They’re not reading gender-bending young adult fiction. But they recoil against censorship. They’re not socialists. But they want the government to do more for working- and middle-class people. They’re not Earth Firsters. But they believe climate change is real. They may still tell pollsters they’re wary of “big government.” But new interstates and bridges, and airport expansions, and new light-rail tracks, and expanded broadband access? They’re great with all that.

And most of all: They, just like Nixon’s old Silent Majority, seek normalcy, law and order, and someone to save the country from extremism. But in Nixon’s time, the extremism came from the left, while today it comes from the right. It’s the Trump right that attacks normalcy, on a daily and sometimes hourly basis. It’s the Trump right that is lawless, as evidenced most obviously by the fact that all these Republicans are tripping over themselves to support a convicted felon to be the president of the United States. And it’s the Trump right that is extremist on just about every issue, from health care to foreign policy.

So they sit at home, probably not watching much cable news, not marching in any marches, but just waiting until Election Day to register their opposition to MAGA. And in case you were wondering—yes, Michael Rulli, the Republican in that Ohio district, was MAGA all the way. He ran an ad in which the voiceover said: “On June 11, vote pro-gun. Pro-life. And pro-Trump.”

I would love to see the Democrats run with this idea that they are the new Silent Majority. It would infuriate the Republicans, who have assumed for 50 years that it is they who represent “regular America.” But with their slavish embrace of a sexual assaulting, classified document stealing, insurrection leading, twice impeached, quadruply indicted, and once (so far) convicted felon, they have waved goodbye to all that. They’re a noisy minority, and they’re alienating Americans by the millions.

You are, I’m sure, familiar with Occam’s razor. It’s the old philosophical theorem that holds that the simplest explanation for an event, the one requiring the fewest assumptions, is probably the best explanation. If you wake up in the morning and there’s snow on the lawn, there are any number of possible explanations. Maybe some friends played a practical joke on you and dumped snow in your yard. Maybe space aliens visited during your slumber and dusted your lawn with the white stuff. Or—maybe it snowed last night.

Republicans keep asking, completely dishonestly, why so much criminal suspicion surrounds Donald Trump. They say it’s all being orchestrated by Joe Biden and Merrick Garland. They insist it’s an effort to interfere with his election campaign. They say a lot of things, but if ever there was a case where Occam’s razor applied, it’s this one. Trump is surrounded by criminal suspicion because he’s a criminal.

He’s been doing criminal things for decades. He just finally got cornered and caught on something. I’ve been writing recently that Democrats have to make sure every voter in the country remembers by Election Day, having heard it said thousands of times, that Donald Trump is a convicted felon. That’s true, and so far, Democrats and affiliated groups aren’t doing a terrible job of this. It’s a little sad that the best expression I’ve seen of this so far comes from a Republican—fiercely anti-Trump Republican Sarah Longwell’s group, Republican Voters Against Trump, has put up some blunt billboards around the country featuring photos of voters, with their names, under the statement: “I won’t vote for a convicted felon.”

But Democrats need to do more. Trump’s criminality, both past and future, should be central to the campaign. There’s a story to tell here, and it’s all true. No matter what the pollsters and the messaging gurus say, it’s impossible that all of this, taken together, doesn’t matter to swing voters.

To tell the story, you go through Trump’s record:

• convicted on 34 felony counts
• determined by a court to have raped a woman and ordered to pay her $83 million
• found by a court to have overvalued his assets and ordered to pay $364 million
• ordered to pay a $2 million settlement after admitting that he misused his charity, which the state of New York shut down
• found by the Justice Department to have refused to rent apartments to Black applicants; settled out of court
• sued by the Justice Department for violating proper procedures in the purchase of stock; paid $750,000 in civil fines
• charged by the New York State Lobbying Commission with violating state lobbying laws while purchasing a casino; paid $250,000 to settle fines
• found by the courts to have grossly defrauded students at the so-called Trump University and ordered to pay them $25 million in restitution

This list isn’t even the tip of the iceberg. It’s the tip of the tip. Trump has spent four decades being sued for something or other, typically not paying his bills, like those famous cases where he stiffed the poor vendors for his casinos, filing his own ridiculous countersuits and libel suits, and paying fines to make things go away. If indeed he actually paid the fines. I wonder if anyone has ever really gotten to the bottom of that. And I haven’t even mentioned the current charges around January 6 and the stolen classified documents because, so far, they’re just charges. But whatever the courts end up saying on those two matters, we’ve all seen with our own eyes the insurrection that he obviously incited (as of this January, 718 rioters had pleaded guilty to various federal charges, and 139 had been found guilty in court) and the photos of the boxes of documents at Mar-a-Lago that he refused for months to turn over to the FBI.

Another important point: The criminality around Trump isn’t limited to Trump. Eight Trump associates were sentenced to prison time: Steve Bannon, Michael Cohen (joined the good side but still served time), Rick Gates, Paul Manafort, Peter Navarro, George Papadopoulos, Roger Stone, and Allen Weisselberg. Others copped pleas: Michael Flynn, Sidney Powell, Kenneth Cheseboro, and Scott Hall, another Georgia defendant.

This is not a coincidence. As GOP strategist Rick Wilson said, “Everything Trump touches dies”; he corrupts everything and everyone around him. And does anyone seriously think that if he gets back to the Oval Office, the same thing isn’t going to happen again? It’s going to be worse.

It’s going to be far worse. First, he’s going to start, on that dictatorial day one, by pardoning himself. Joe Biden and the Democrats need to try to get voters focused on this. If it happens, people will be completely outraged. Yes, the 38 percent or so who are MAGA world will be fine with it, but majorities will be flabbergasted at such an act. Is it possible to get voters pre-outraged about something that hasn’t happened? The polls will say no. But as I’ve written over and over lately, polls can either be accepted—or they can be changed.

Right now, what’s most terrifying to me about the polls is that they tell us emphatically that people forget. They forget all the horrible things Trump did. That includes presidential actions, like his lies to the American people about the pandemic, but it also includes his history of criminality and the way that history guarantees he’ll keep behaving that way.

In sum: Trump’s criminal record hardly begins and ends with Stormy Daniels. Somebody needs to make sure that, by November 5, voters know the entire, sordid history.

The only thing that was more fun yesterday than watching the Trump verdict come in was watching Republicans and assorted right-wingers sputter in outrage. I flipped on Fox News not long after the verdict was announced and caught Jeanine Pirro in the middle of an unhinged rant. “We have gone over a cliff in America,” she howled, concluding: “And in the end, with all this smoke and mirrors, at 34 counts, and a hooker, and a guy [who] according to a federal judge is a serial perjurer, we have convicted a former president of the United States of America.”

In a way, she got that last part right, even if her description of Stormy Daniels is unfair. But yes, Jeanine: That’s how the legal system works. If a jury returns 34 guilty counts in less than 10 hours of deliberation, it’s pretty clear that the prosecutor made his case. The jury of Donald Trump’s peers found Daniels and Michael Cohen to be credible witnesses. That must really frost the MAGA elites on Fox. Trump lawyer Todd Blanche tried and tried to discredit them, especially Cohen. Obviously, the jury wasn’t buying what he was selling.

And by the way: If Cohen and Daniels were such terrible witnesses, you know what action by the defense could have immediately canceled them out? Having Trump take the stand! He threatened that he was going to, but that was obviously bullshit, just like everything he says. Trump can’t take a witness stand, as any credible lawyer knows, because he lies every time he opens his jowly mouth. But if the alternate universe they live in on Fox was real, then Trump should definitely have taken the stand, because he would have obliterated Cohen and Daniels with his righteous truth-telling.

But of course he didn’t. Because every word he has said about this is a lie. He had sex with her. He paid her off. It was obviously about the 2016 campaign. We’ve known all these things for years, but, the law being what it is, we had to say “allegedly” and “if proven” and things like that, and we had to print Trump’s disavowals. Now we don’t. He did it.

Not in that alternate universe, though. Republicans … well, you know what they did after the verdict. Especially the vice presidential supplicants. Senator Tim Scott was maybe the most extreme, but actually all of them—Marco Rubio, Tom Cotton, Elise Stefanik, J.D. Vance, and more—were over the top.

That, we’d expect. More interesting were the elder statespersons of the party, who are to a person moral cowards but aren’t exactly card-carrying MAGA-heads. Senator John Barrasso: “The case in New York against President Trump has never been about justice. Democrats are weaponizing the justice system against a political opponent.” Mitch McConnell: “These charges never should have been brought in the first place. I expect the conviction to be overturned on appeal.”

But the dumbest of them all was Susan Collins’s statement, especially this part: “The district attorney, who campaigned on a promise to prosecute Donald Trump, brought these charges precisely because of who the defendant was rather than because of any specified criminal conduct.”

She got pounded on X/Twitter all night. It’s pretty hard to say that criminal charges are corrupt and illegitimate after a jury handed down an unequivocal thunderclap of a verdict like that. We should pause for a moment and think about the contempt for the justice system inherent in Collins’s words. Maybe she became disillusioned after her buddy Brett Kavanaugh voted to overturn Roe.

Her smear of Alvin Bragg is a common one on the right. The reality is more complicated. Bragg was running for district attorney in 2021. Of course, Trump came up during the campaign—a lot. The incumbent D.A. at the time, Cy Vance, had opened an investigation into the Trump Organization. So naturally, Bragg and his main opponent were frequently asked what they’d do about Trump. And Bragg did boast about his prior work in the office of the state attorney general bringing “hundreds” of actions against Trump. But he did not say he was going to pursue Trump, and the campaign also turned on other issues.

And when Bragg did take office, what did he do? He ended the Trump Organization probe that Vance had opened. Two of his top prosecutors resigned in disgust over it. That probe was taken up by Letitia James, and it resulted, as we know, in a judge ruling that Trump had committed fraud for years and levying a hefty fine.

One has to wonder why Collins went out of her way to make this kind of statement. Maine isn’t exactly MAGA-land. She’s probably in her last term. On a personal level, Trump probably has very little use for her, and she probably doesn’t care much for him. So … why?

Because the cancer runs so deep now in the organs of the Republican Party that no officeholder is cancer-free. Did one GOP officeholder say we should respect the jury system? Yes, I know of Larry Hogan’s statement. But he is not currently an officeholder, with constituents to offend. And look at what Trump’s campaign manager said in response to Hogan. That guarantees that no one else will try to say anything measured.

The party is an appendage of one man. Republicans want to talk about banana republics? They are the Banana Republicans. This is like Argentina under Perón or the Philippines under Marcos.

And to what manner of man are they appended? Let’s review. He’s a rapist—yes, a judge used that word and said it was accurate, after, remember, another jury of Trump’s peers ruled against him. He’s a massive tax cheat. Six of his political associates, plus Allen Weisselberg (and Cohen, if you want to count him), have been sentenced to prison. Three took plea deals to avoid prison. And now, he’s a convicted felon.

The emperor is stripped barer and barer with each passing month, and the Republican response is to praise his finery more passionately than ever.

By now, we’ve seen poll after poll showing that voters look back fondly on Donald Trump’s presidency. The polls suggest that millions of people forget completely, for example, Trump’s shambolic panic when the pandemic was coming, his total failure to order up ventilators and masks, his serial lies that the 15 Covid cases would soon be down to zero, and so on—behavior so obviously disqualifying that failing to see it is, to my mind, akin to seeing a man holding a smoking gun over a dead body and denying that the man was the shooter.

Lately, these polls have been joined by other polls that say something just as false and just as dangerous. These polls show people giving Trump credit for things that Biden has accomplished and people being miffed at Biden for all manner of bad stuff that just isn’t real. In the latter category, we find a Harris Poll (yes, Mark Penn, but even so) showing the following hall-of-mirrors results, as Harold Meyerson wrote in The American Prospect: 56 percent of Americans think the country is in a recession, 49 percent believe the stock market is down, and 49 percent also believe unemployment is at an all-time high.

We are not close to a recession, which is a decline in gross domestic product in two consecutive quarters. That did happen in early 2022, but the second-quarter dip was very shallow, and most economists didn’t call it a recession. The Dow is up 8,000 points since Biden took office. Unemployment is at its lowest level in half a century.

Meyerson fingers—correctly, I think—the fact that so many people get their “news” from social media, which is usually just a collection of video and photo images that can pack an emotional punch but that explain and contextualize nothing. Social media, as Meyerson wrote, “has a built-in bias for the negative, the apocalyptic, the unedited, and uncurated.” A steady stream of clips showing high gas prices or rubble in Gaza or students being arrested is bound to lead the consumer of said clips to some dark conclusions about the country teetering on the knife’s edge of chaos and collapse, which, once formed, facts are powerless to dislodge.

There’s another recent survey, one of the most depressing and telling I’ve seen this year, that seems to confirm this too. This was an NBC News poll that divided respondents based on where they got their news. Pay attention here. Among people who don’t follow political news at all, Trump led Biden 53–27. Among social media users, Trump led 46–42. But among people who actually read newspapers, Biden led—ready?—by 70–21.

Pretty grim. But it’s even worse. This week on his Substack, New America fellow Lee Drutman wrote a really interesting piece about how our brains process thoughts about the past and the present. When we think about the past, he writes, we always remember it as better than it was. It’s called nostalgia bias.

But when we think about the present? We tend to think of it as worse than it actually is. This is called negativity bias. As Drutman put it: “Our brains are deeply attuned to possible threats, and so we have a strong negativity bias in how we process the present. In an environment of nonstop national media and hyper-partisan confrontational politics, we are constantly getting triggered. This makes us especially likely to see the present moment as a crisis.”

Social media of course plays a key role here too. A 10-second video of undocumented people crossing the Rio Grande tells the brain: “Chaos!” And Biden is doing nothing. The people may have been apprehended or turned back, who knows. But those 10 seconds have done their job.

Our brains have always worked liked this, as Drutman readily acknowledges. But Trump has made it all worse by constantly carrying on about how awful things are today—the sweeping and totally false generalizations about how no one is safe anywhere anymore; the unprovable (but, crucially for his purposes, un-dis-provable) assertions that Ukraine and Gaza and so on would never have happened if the election hadn’t been stolen from him.

And what Trump is doing, by the way, isn’t simple nostalgia. Nostalgia is an innocent pining for our younger days, when we looked better and our backs didn’t hurt and we had more sex. What Trump is doing is much darker. What Trump is doing is fascism, which throughout its history, as Drutman notes, is obsessed with tropes of social decline.

This is where we are, and this is really what Biden is up against—what perhaps any president would be up against in this jittery and overcaffeinated age. Even Trump fell victim to it in 2020 to some extent. But on balance, Trump benefits, and I’d say tremendously, because a media environment that encourages people not to think but only to react is a perfect mate for a political candidate who does the same.

Yet I’m not saying all is lost. I don’t think it is. There are millions of Americans who reject Trumpism outright. There are millions of people who seek facts, remember the awful things Trump did, read newspapers. Trump has lost a lot more elections (if you count the ones since 2016 when he was “on the ballot,” as it were) than he’s won. Still, it’s different now that Trump is out of office and can spin myths about his tenure and himself that too many people are willing to believe.

The best counter to Trump’s mythmaking about the past? Insistently telling people about the ugly future Trump promises. Read Jamelle Bouie today on Trump’s deportation plans. I have to believe most Americans do not want their country to do that. The Democrats’ answer to Trump’s obsession with the past is to warn people about a Trump-led future.

This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.