Oops! … They Did it Again

And they are not so innocent

Judge Aileen Cannon’s decision Monday to dismiss the classified documents criminal case against Donald Trump is not merely spurious jurisprudence or an example of incompetence. 

In any other country, we would recognize Cannon’s actions—dismissing a major criminal case against a presidential candidate on the first day of his party’s convention—to be part of an ongoing constitutional coup. Even more so if that judge had been placed on the court by the defendant after he had lost his re-election bid (and before he incited an attempted insurrection, for which three of his appointments to the Supreme Court immunized him from prosecution two weeks ago… but I digress.)

Any foreigner would see this as a coup led by a revanchist alliance of plutocrats like Charles Koch and theocrats like Leonard Leo, whose approval is now a prerequisite for any Republican judicial appointment.  

This alliance seeks to repeal and replace the 20th century’s major advancements on civil rights and economic justice—doing as much as they can to return America to the era of robber barons and unchallenged white Christian patriarchy. This agenda could never be accomplished through anything resembling a democratic process, which is why the revanchist alliance has spent decades building power through the Federalist Society to secure lifetime judicial appointments for their loyalists. 

Election Interference Redux

Until yesterday, the question of the lawfulness of the special counsel’s appointment was universally considered settled law. It has been upheld multiple times, most recently by the DC Circuit Court of Appeals in 2019 upholding the Mueller appointment as special counsel and originally by the Supreme Court in US v Nixon in 1974. 

Moreover, those arguing for Trump's fringe claim at Cannon’s hearing included the likes of Koch and other groups backed by billionaires, including Citizens United (the organization, not the case) and the Landmark Legal Foundation.

Therefore, Cannon’s decision can only be seen as intended to shield Trump from prosecution before the election—and, should he win, to save him the trouble of pardoning himself. 

As such, Cannon is acting in lockstep with the six MAGA justices on the Supreme Court. Her decision has to be added to a list of a dozen examples of judicial interference in democratic elections by Republican-appointed judges. (See Tipping the Scales: The MAGA Justices Have Already Interfered with the 2024 Elections.) All of these actions were obviously intended to advance the revanchist alliance’s agenda, and none of them had the support of a single justice appointed by a Democratic president. 

Repealing and Replacing the 20th Century

Regardless of what eventually happens, we have to understand how the plutocrat-theocrat coalition has spent billions to take over, or exploit weaknesses in, the following levers in our system to coordinate their ongoing coup. The same moneyed and ideological interests have been pulling (or supporting the Republicans who are pulling) each lever listed here. Therefore, we must understand each of the incidents listed below not as isolated outrages, but a series of steps taken by agents working in concert toward a larger shared goal.

In particular, it’s important to understand the symbiotic relationship between Senate Republicans and the Republican-appointed Justices that became fully apparent in 2010 with the Citizens United decision. That decision, along with others eviscerating the Voting Rights Act, greenlit gerrymandering and countenanced voter suppression laws that significantly increased Republicans’ electoral fortunes and helped them translate national voting minorities into governing majorities, and turned state legislatures into right-wing fortresses that have recreated pre-VRA one party rule in Red States. (The Two Nations of America).¹ The Republican Senate majorities (which never represented a majority of voters; see chart below) broke all norms to stack the Supreme Court and the federal judiciary. And, crucially, with an assist from Democrats’ inability to get past their filibuster, they have protected the Republican appointees to the Supreme Court from even the mildest efforts to hold them accountable.² 

Media Myopia

If you limit your field of vision (as the media does almost exclusively) to a single governing venue, your understanding of our current peril is limited by what can be speculated about the actors on that one stage, whether it’s McConnell in the Senate or Roberts on the Court. Often biographical details loom large.  

Yet, you don’t have to expand your field of vision much to see that it’s been exactly the same interests that: 

• Finance and evangelize for Republican House, Senate, state legislative, gubernatorial, and presidential candidates in the electoral arena, including primaries against RINOs, backing the most committed pro-MAGA ideologues as candidates (How White Christian Political Might Made the Republican Party Hard Right, in 8 Charts);  

• Finance the law schools and journals as well as the careers of judges who are willing to use the smokescreen of “originalism” or “conservatism” to nakedly advance the agenda of the Federalist Society and its billionaire donors—facilitating most of the other actions listed above (To the Supreme Court, the 20th Century Was Wrongly Decided), not to mention the often expensive publican relations and lobbying campaigns to assure their Senate confirmations; 

• Finance dark money networks of faux activist groups (for example, Americans for Prosperity) and think tanks (for example, the Heritage Foundation) that do the public relations laundering to brand what is good for the plutocrats as good for everyone else; and

• Also finance the establishment of an alternate reality media ecosystem, as well as dark money. 

As Georgetown Law School professor Lisa Heinzerling said recently on Amicus with respect to the Chevron decision: “The court is just serving as the vehicle to deliver those benefits to the billionaires. Could be any of the branches of government. Right now it’s the Supreme Court.” The Court and Red State trifecta governments deliver the benefits, and the Republican congressional caucuses shield them from accountability. 

Until we stop waiting breathlessly for, and then spend endless time analyzing, what these “courts” do in terms of any pre-existing notion of principled jurisprudence or personal biography, we will never turn our attention and collective power to defeating the interests whose influence has metastasized throughout our institutions.

1.  In a paper titled “After Citizens United: How Outside Spending Shapes American Democracy,” researchers  show the extent to which the Citizens United case “increased the electoral success of Republican candidates, thereby leading to more ideologically conservative legislatures.” Additionally, Jake Grumbach documents that since 2000, Republicans nationwide have used their trifectas to become laboratories of democratic backsliding.

2. Such actions by Senate Republicans to frustrate accountability include: (1) acquitting Trump in the second impeachment trial; (2) filibustering the creation of an independent bipartisan January 6th commission; (3) refusing to cooperate with the January 6th Committee and attacking it as a partisan witch hunt; (4) filibustering allowing debate on election reform legislation; (5) refusing to hear the Garland nomination nine months before the 2016 election; (6) ramming through the Coney Barrett nomination after people had already started voting in the 2020 election and it was widely anticipate that Trump would lose the election; and standing in the way of holding hearings on Thomas and Alito’s corruption.