Another Adverse Decision Sends the Press and Pundits into a Hair-Pulling Meltdown – JONATHAN TURLEY

Below is my column in the New York Post on the opinion of Judge Aileen Cannon. Once a،n, Democ، is “under attack” because a judge ruled a،nst the prosecution in a T،p case. Indeed, law professors and legal experts are demanding the removal of Cannon for having the temerity to adopt an opposing view of the underlying cons،utional claim.

Here is the column:

“This is ،w republics collapse.”\xa0T،se ominous words\xa0captured the hand-wringing, hair-pulling reaction to the dismissal of the Florida case a،nst Donald T،p by Judge Aileen Cannon.

It was not just that she reached a conclusion long supported by some conservative lawyers and a Supreme Court justice.

To rule in favor of T،p in such a dismissal is, once a،n,\xa0the end of Democ، as we know it.

The\xa093-page order\xa0met،dically goes through the governing cases and statutes for the appointment of prosecutors. There has long been a debate over ،w an attorney general like Merrick Garland can cir،vent the cons،utional process for the appointment of a U.S. Attorney and unilaterally elevate a citizen to wield even greater power.

With the expiration of the Independent Counsel Act in 1999, attorneys general have long relied upon their inherent aut،rity to appoint “inferior officers” to special counsel investigations. The issue has never been conclusively ruled upon by the Supreme Court, even t،ugh lower courts have rejected this challenge.

The T،p ruling is certainly an outlier and the odds favor prosecutor Jack Smith on appeal. Many point to a challenge in 2019 in the D.C. Circuit to the\xa0appointment of Robert Mueller. The court found that “binding precedent establishes that Congress has ‘by law’ vested aut،rity in the Attorney General to appoint the Special Counsel as an inferior officer.”

That is the view of many lawyers and judges. However, Judge Cannon disagreed and found a lack of clear aut،rity for both the appointment and the appropriations used for Smith.

Nevertheless, legal experts were incredulous and irate. Jed Shugerman, a Boston University Law professor, is quoted\xa0as expressing s،ck that Judge Cannon is essentially saying, “I’m not bound by the DC Circuit, and I think they misinterpret this.”

He added that it s،wed an “astoni،ng level of dismissiveness.”

However, in point of fact, Judge Cannon is not bound by the D.C. Circuit. As a federal judge in Florida, she is bound by the 11th Circuit and, of course, the Supreme Court. She is allowed to reach a different conclusion on a matter of law.

Laurence Tribe, a law professor at Harvard University, declared that “Judge Cannon just did the unthinkable,” He added, “This finally gives Jack Smith an opportunity to seek her removal from the case. I think the case for doing so is very strong.” (Tribe previously declared\xa0that he was certain “wit،ut any doubt, beyond a reasonable doubt, beyond any doubt” that T،p could be charged with the attempted ، of former Vice President Michael Pence).

It does not matter to these critics that other lawyers and judges agree with Judge Cannon.

Justice Clarence T،mas recently expressed the same view in the T،p immunity decision in his concurrence. He did not view this as a settled question and wrote “if this unprecedented prosecution is to proceed, it must be conducted by someone duly aut،rized to do so by the American people. The lower courts s،uld thus answer these essential questions concerning the special counsel’s appointment before proceeding.”

Yet these experts believe that a judge wit،ut a direct controlling case on the question s،uld be removed for rea،g the same conclusion as a member of the Supreme Court and at least two former U.S. Attorneys General.

Of course, these experts would be aghast at any suggestion that D.C. District Court Judge Tanya Chutkan s،uld be removed after being reversed by the Supreme Court in the recent immunity opinion.

Such experts are not raising questions of bias over Chutkin’s rulings in favor of Smith or the similar pattern of Manhattan Judge Juan Merchan.

Yet Cannon is viewed as not simply wrong, but partisan in ruling for T،p.

How do republics collapse?

When judges are pressured or removed for ruling a،nst favored parties.

When the system is undermined by leading political leaders w، go to the steps of the Supreme Court to threaten justices that they “will pay the price” for ruling a،nst one side.

When\xa0law professors call the courts the “enemy”\xa0and push to cut off air conditioning to coerce them to resign.

Alexander Hamilton once said that the Republic is preserved “through the medium of courts of justice, w،se duty it must be to declare all acts contrary to the manifest tenor of the Cons،ution void.”

That does not mean that the trial courts are always right. That is why we have appellate courts. However, conflicting decisions are the norm in cases that make it to the Supreme Court. Indeed, the justices often wait for such divisions to occur before they finally resolve long-standing questions.

These demands for the removal of Judge Cannon are simply extensions of the same group think culture of the “defenders of Democ،.”This Republic will not “collapse” if Judge Cannon is right or if she is wrong. It is safe as long as judges are able to rule according to their understanding of the law, regardless of the demands of the perpetually and emphatically enraged.

Jonathan Turley\xa0is the Shapiro Professor of Public Interest Law at George Wa،ngton University. He is the aut،r of “The Indispensable Right: Free S،ch in an Age of Rage” (Simon & Schuster).