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      Joe Biden is politicizing US supreme court reform – and that’s a good thing | Austin Sarat

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      “Better late than never” is a useful maxim in all of life and in politics as well. On Monday, Joe Biden caught the “better late than never” bug when he unveiled a series of proposals to reform the US supreme court.Those proposals come more than two and a half years after the US president’s presidential commission on the supreme court issued its recommendations, and more than 40 years after Biden called former president Franklin Delano Roosevelt’s plan to impose term limits on the court “boneheaded”.In 2020, during his quest for the White House, Biden again distanced himself from people who were pushing for significant institutional reform at the court.How times have changed. That was before the court overruled Roe v Wade, the ethics scandals of justices Samuel Alito and Clarence Thomas came to light, and before the court gave the president almost blanket immunity from criminal prosecution.Biden announced his new thinking in a Washington Post op-ed, in which he detailed what he called “three bold reforms to restore trust and accountability to the court and our democracy”. They begin with a constitutional amendment designed to reverse the supreme court’s Trump v United States decision granting presidents immunity from criminal prosecution for their official acts.Biden calls it the “No One Is Above the Law Amendment”. It would “make clear that there is no immunity for crimes a former president committed while in office”.The second of Biden’s reform proposals would impose term limits on the justices who sit on the supreme court. It would institute “a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court”.Third, Biden called for enacting “a binding code of conduct for the Supreme Court”. Justices, Biden wrote, “should be required to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest”.While each of these proposals is a wise response to the current crisis of the supreme court, none of them has any chance of being enacted in the near future. Still, Biden has done a service by going public with these ideas and politicizing the court reform question.His op-ed and speech on court reform at an event commemorating the passage of the 1964 Civil Rights Act will help ensure that supreme court reform is a live issue during the remainder of the 2024 presidential campaign.The first of Biden’s proposals, the call for a constitutional amendment, is the most important but also the most difficult to achieve among his three ideas. Like earlier versions of the same idea, it offers an important vehicle for engaging the public in resisting yet another exercise of judicial supremacy by our increasingly rogue supreme court.America has a long history of using the amendment process to reverse repugnant supreme court decisions, like Trump v United States. But as Harvard Law’s Jill Lepore notes, over the long arc of American history, amending the constitution has “become a lost art”.In fact, Lepore noted elsewhere: “The US Constitution hasn’t been meaningfully amended since 1971.”However, by supporting an amendment to reverse Trump v United States, Biden has teed up a winning issue for Kamala Harris. Polls show that 65% of Americans do not think presidents should have immunity for actions taken in office.Among independent voters, that number is 68%.Even larger majorities support 18-year term limits for supreme court justices. As the Biden commission noted: “Up until the late 1960s, the average term of service was 15 years. It has now risen to roughly 26 years, and a number of Justices have served three or more decades, spanning numerous election cycles and presidential administrations.”skip past newsletter promotionafter newsletter promotionThis may be why a Fox News Poll conducted earlier this month found that 78% of the respondents favor that idea. That is up from 66% in 2022.While term limits are popular, it is unclear whether Congress could impose them by ordinary legislation or whether this proposal would also require a constitutional amendment. Even Biden’s supreme court commission was divided on that question.As an article in Forbes explains: “Article III of the Constitution states judges ‘shall hold their Offices during good Behaviour,’ which has been interpreted to mean justices have to hold lifetime appointments. The commission said Congress could get around the issue by having only the most recent justices hear most cases, which originate in lower courts, while still keeping the older ones on to hear cases that originate in the Supreme Court.”“That strategy … would create the ‘effective equivalent’ of term limits without actually violating Article III by kicking justices off the court.”What is clear is that Donald Trump is on the wrong side of the supreme court term limits idea. Earlier this month, the former president branded court reform proposals such as term limits “illegal” and “unconstitutional”.“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” he posted on Truth Social. “We have to fight for our Fair and Independent Courts, and protect our Country.”Trump is even out of step with his supporters on the idea of term limits for justices. Newsweek says: “Among those who voted for Trump in 2020, 54% supported term limits, while 20% opposed them.”Finally, a Politico/Morning Consult poll conducted last September showed that “three-in-four voters want the justices bound to an ethics code, the most popular reform proposal in the survey”. This figure reflects what Politico calls “a bipartisan consensus of 81% of Democrats, 72% of Republicans, and 69% of independents”.Here, too, Maga world is on the wrong side politically, as well as on the wrong side of history. Just last month, as NBC News reported, Senate Republicans “blocked a Democratic-sponsored bill that would have required Supreme Court justices to adopt a binding code of conduct”.In the end, no matter how Biden’s proposals play out in the presidential contest, by politicizing the issue, by going public with them in a high-profile manner, the president has offered the people of the United States a chance to make their voices heard about the kind of supreme court they want. It is now up to all of us to take him up on that offer and use our votes to weigh in on this most important question.

      Austin Sarat is a professor of jurisprudence and political science at Amherst College and the author of Lethal Injection and the False Promise of Humane Execution More

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      Biden calls for supreme court changes and decries Trump immunity ruling

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      Joe Biden, in a Monday address calling for sweeping reforms of the US supreme court, said the recent decision granting some immunity to presidents from criminal prosecution makes them a king before the law.Speaking in Austin at the commemoration of the 60th anniversary of the passage of the Civil Rights Act, Biden said a president was no longer restrained by the law and that this was “a fundamentally flawed [and] dangerous principle”.The decision in Trump v United States, which gives broad immunity from later prosecution for a president exercising his authority in his official capacity, is one of several recent court rulings – from the gutting of the Voting Rights Act to casting down Roe v Wade as the precedent on abortion rights – that stands in stark contrast to the era 50 years ago in which civil rights legislation passed, Biden said.“The extreme opinions that the supreme court has handed down have undermined long established civil rights principles and protections,” Biden said, invoking the specter of Project 2025 as a looming threat.“They’re planning another onslaught attacking civil rights in America,” he said.“For example, Project 2025 calls for aggressively attacking diversity, equity and inclusion all across all aspects of American life. This extreme Maga movement even proposes to end birthright citizenship. This is how far they’ve come.”Biden said he is proposing a new constitutional amendment that explicitly applies the criminal code to presidents. The conduct of Donald Trump demands legislative changes, he said.“No other former president has asked for this kind of immunity and none should have been given it,” Biden said. “The president must be accountable to the law … We are a nation of laws, not kings and dictators.”A constitutional amendment requires two-thirds of both the US House and Senate to agree to it, followed by the government of three-quarters of the states.Biden also said that the scandals involving supreme court justices have caused public opinion to question the court’s fairness and independence and impeded its mission.He said: “The supreme court’s current code of conduct is weak and even more frighteningly voluntary.”Biden called for a binding code of conduct for the supreme court and term limits for justices, noting that the United States was the only western democracy that gives lifetime appointments to its high court.The term limiting proposal would create staggered 18-year terms for justices, beginning with the next justice to leave the court.The idea for term limits and a binding code of ethics for the court is not new but has perhaps become more urgent. Biden’s proposal closely resembles legislation first proposed by Georgia representative Hank Johnson, the ranking Democrat on the House judiciary committee and the likely banner carrier for legislative movement on this issue if he regains the committee chairmanship in a Democratic House.Johnson’s Term Act would apply term limits to existing supreme court justices, giving each president appointments in the first and third year of their administration.“Right now, three justices have already served in excess of 18 years,” Johnson said. “And so, those judges would be replaced over a six-year period.”Johnson described term limiting legislation as “important foundational, structural change that will prevent the court from becoming the kind of court that this one is; one that, because of tenure, has become unaccountable, arrogant, and destructive to our democracy.”Johnson also has proposed the Supreme Court Ethics, Recusal and Transparency Act, legislation binding supreme court judges ethically.But what if the court rules that this legislation itself is unconstitutional?“There would be nothing that would stop them from ruling it unconstitutional,” Johnson said. “But if we get to that point, we could have we would say goodbye to the rule of law in this country.”Johnson likened the prospect to the reaction of President Andrew Jackson rejecting a supreme court ruling on Native American removals in Georgia nearly two centuries ago, with a federal government effectively ignoring the court. Ruling “something that’s clearly constitutional was unconstitutional would really be the end of our democracy, because there would no longer be respect for the rule of law”, he said. More

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      Trump ally asks supreme court to move Georgia election case to federal court

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      Attorneys for the White House chief of staff during Donald Trump’s presidency, Mark Meadows, have asked the US supreme court to move the Georgia 2020 election interference case to federal court.The petition cites the recent supreme court ruling that granted Trump immunity for any acts deemed official – which came as part of a 2020 election subversion case in Washington DC’s federal courthouse. Meadows’s attorneys claimed that a federal forum was needed to address their client’s actions as the White House chief of staff.“It is hard to imagine a case in which the need for a federal forum is more pressing than one that requires resolving novel questions about the duties and powers of one of the most important federal offices in the nation,” the Meadows legal team’s petition argued.That filing is the most recent attempt by Meadows’s attorneys to move the Georgia election interference case from an Atlanta state court to US district court. In December 2023, a three-judge appeals court panel denied their effort to move the case to federal court, ruling that former federal officials are ineligible to move their charges.Meadows and his attorneys have undertaken that effort in hopes of asserting immunity from prosecution on charges related to unlawfully attempting to overturn Joe Biden’s electoral victory in Georgia in the 2020 presidential race. If successful, they would affect Fulton county, Georgia, district attorney Fani Willis’s prosecution of Trump, Meadows and other co-defendants.The judges on the appeals panel ruled that – even if the transfer process known as removal extended to former federal officials – Meadows did not demonstrate he was acting in his official role as White House chief of staff. The ruling blocked a path for Meadows to assert immunity and other federal defenses.And it prevented the jury pool from being broadened to areas of Georgia with lower percentages of Democrats while also getting case overseen by a member of the federal judiciary, which is appointed by presidents.Meadows is one of 19 defendants, including Trump, who were charged last August in the Georgia election racketeering case.The case’s proceedings have been televised in Georgia state court, and the plan is to do the same for the trial.“Simply put, whatever the precise contours of Meadows’s official authority, that authority did not extend to an alleged conspiracy to overturn valid election results,” the judge, William Pryor, an appointee of president George W Bush, wrote in the appellate court ruling.Attorneys for Meadows also requested the supreme court wipe away the appellate ruling and send the case back to the lower courts if they opt not to fully review his petition.Meadows faces charges that he allegedly entered a months-long conspiracy with Trump and other allies to overturn Biden’s victory in Georgia during his winning presidential run in 2020.Meadows also faces a second charge alleging he sought to persuade the Georgia secretary of state, Brad Raffensperger, to violate his oath of office. The charge references Meadows’s involvement in a phone call from Trump to Raffensperger – the top elections official in Georgia – asking him to find additional votes needed for the former president to win the state.The Georgia election interference case is halted for now as a state appeals court is scheduled to hear arguments in December over Trump’s efforts to remove Willis from the case.Meadows has also been charged in Arizona over his efforts to assist Trump to overturn election results, along with the former New York City mayor Rudy Giuliani and 16 others.Meadows has pleaded not guilty in both the Arizona and Georgia cases. More

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      Biden calls for supreme court reforms including 18-year justice term limits

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      Joe Biden has called for a series of reforms to the US supreme court, including the introduction of term limits for justices and a constitutional amendment to remove immunity for crimes committed by a president while in office.In an op-ed published on Monday morning, the president said justices should be limited to a maximum of 18 years’ service on the court rather than the current lifetime appointment, and also said ethics rules should be strengthened to regulate justices’ behavior.The call for reform comes after the supreme court ruled in early July that former presidents have some degree of immunity from prosecution, a decision that served as a major victory for Donald Trump amid his legal travails.“This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States,” Biden wrote.“I served as a US senator for 36 years, including as chairman and ranking member of the Judiciary Committee. I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today.“I have great respect for our institutions and separation of powers. What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”Biden called for a “no one is above the law” amendment to the constitution, which would make clear that no president is entitled to immunity from prosecution by virtue of having served in the White House. Biden also said justices’ terms should be limited to 18 years, under a system where a new justice would be appointed to the supreme court by the serving president every two years.The president also called for stricter, enforceable rules on conduct which would require justices to disclose gifts, refrain from political activity, and recuse themselves from cases in which they or their spouses have financial interest.Last week Justice Elena Kagan called for the court to strengthen the ethics code it introduced in 2023 by adding a way to enforce it. That code was introduced after a spate of scandals involving rightwing justices on the court: Clarence Thomas was found to have accepted vacations and travel from a Republican mega-donor, while Samuel Alito flew on a private jet owned by an influential billionaire on the way to a fishing trip.skip past newsletter promotionafter newsletter promotionLegislation would be required to impose term limits and an ethics code on the Supreme Court, but it is unlikely to pass the current divided Congress.The constitutional amendment on presidential immunity would be even more difficult to enact, requiring two-thirds support from both chambers of Congress or a convention called by two-thirds of the states, and then ratification by 38 of the 50 state legislatures.Reuters contributed to this report More

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      Biden to announce plans to reform US supreme court – report

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      Joe Biden will announce plans to reform the US supreme court on Monday, Politico reported, citing two people familiar with the matter, adding that the US president was likely to back term limits for justices and an enforceable code of ethics.Biden said earlier this week during an Oval Office address that he would call for reform of the court.He is also expected to seek a constitutional amendment to limit immunity for presidents and some other officeholders, Politico reported, in the aftermath of a July supreme court ruling that presidents have broad immunity from prosecution.Biden will make the announcement in Texas on Monday and the specific proposals could change, the report added.Justice Elena Kagan on Thursday became the first member of the supreme court to call publicly for beefing up its new ethics code by adding a way to enforce it.“The thing that can be criticized is, you know, rules usually have enforcement mechanisms attached to them, and this one – this set of rules – does not,” Kagan said at an annual judicial conference held by the ninth circuit. More than 150 judges, attorneys, court personnel and others attended.The court had been considering adopting an ethics code for several years, but the effort took on added urgency after it was reported last year that Justice Clarence Thomas did not disclose luxury trips he accepted from a major Republican donor.Public confidence in the court has slipped sharply in recent years. In June, a survey for the Associated Press-Norc Center for Public Affairs Research found that four in 10 US adults have hardly any confidence in the justices and 70% believe they are more likely to be guided by their own ideology rather than serving as neutral arbiters.The Associated Press contributed to this report More

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      Biden’s address was a moving piece of political theatre and a rebuke of Trump

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      There was 6 January 2021, and a violent coup attempt by a president desperately trying to cling to power. Then there was 24 July 2024, and a president explaining why he was giving up the most powerful job in the world.Joe Biden’s address on Wednesday night was a moving piece of political theatre, the start of a farewell tour by “a kid with a stutter from modest beginnings” who entered politics in 1972 and made it all the way to the Oval Office. For diehard Democrats it was a case of: if you have tears, prepare to shed them now.The speech was also a rebuke of his predecessor Donald Trump’s authoritarian impulses in both word and deed. Although he never mentioned his predecessor by name, Biden laid out two radically different visions of the US presidency set to clash again in November.Last Sunday the 46th president bowed to a chorus of fellow Democrats questioning his age and mental acuity and announced that he would drop out of the presidential election. On Wednesday, recovered from the coronavirus, the 81-year-old made his first public remarks to explain why.Speaking against the backdrop of window, two flags, gold curtains and family photos including his late son Beau, Biden began by citing the Oval Office portraits of former presidents Thomas Jefferson, George Washington, Abraham Lincoln and Franklin Roosevelt.“I revere this office but I love my country more,” he said. “It’s been the honour of my life to serve as your president. But in the defence of democracy, which is at stake, I think it’s more important than any title.”It was a definitive rebuke of Trump, a man who has slapped his name on countless buildings and for whom the title is everything. Backed by the conservative Heritage Foundation thinktank, the Republican nominee is intent on an expansion of presidential power. But by giving power away – in what Hillary Clinton described “as pure an act of patriotism as I have seen in my lifetime” – Biden demonstrated he will always be the bigger man.Indeed, despite having months to prepare for this contingency, the Trump campaign has been struggling to find a strategy to take on the new Democratic nominee, Kamala Harris. Perhaps they were not quite able to believe that Biden would step aside because they know Trump never would.Biden wore a dark blue suit, white shirt, blue tie and US flag pin. There were no major gaffes but there were slight stumbles over certain words. Sitting off-camera to his left were his son Hunter and other family members. According to a pool reporter in the Oval Office, at one point Biden’s daughter Ashley reached for the hand of her mother, Jill Biden, who was sitting next to her.(Trump, who claims he recently “took a bullet for democracy”, watched the address on his plane after a characteristically mendacious and narcissistic campaign rally in North Carolina.)Biden is the first incumbent to announce he would not seek re-election since Lyndon Johnson in 1968, although some historians argue that Johnson secretly hoped for a breakthrough in the Vietnam war and for his party to come begging for him to make a comeback.Still, some of the parallels are irresistible. For Johnson, coming after the younger, more glamorous John F Kennedy, remarkable legislative achievements at home were clouded by the war in Vietnam. For Biden, coming after the younger, more glamorous Barack Obama, remarkable legislative achievements at home have been clouded by the war on Gaza. Just as in 1968, expect protests at next month’s Democratic national convention in Chicago.But whereas Johnson announced that he would not seek re-election at the end of a long and winding 40-minute speech, Biden, recovering from Covid-19, first did so via Twitter/X. And he quickly anointed a successor in Harris.Biden reportedly has mixed feelings about being pushed aside by some of those same Democrats now singing his praises. The presidency had been his lifelong ambition – he first ran in 1988 – and his victory in 2020 was a vindication of everyman strivers everywhere. On top of that, he did the job rather well. Yet now they were telling him enough. In his Oval Office address, he buried those resentments deep in his soul, though he could not resist a pointed comment about his qualifications.“I believe my record as president, my leadership in the world, my vision for America’s future, all merited a second term,” he said. “But nothing, nothing can come in the way of saving our democracy. That includes personal ambition.”He made a call for generational change in a country facing its first presidential election without a Bush, Clinton or Biden on the ticket since 1976. “I’ve decided the best way forward is to pass the torch to a new generation.“It’s the best way to unite our nation. I know there was a time and a place for long years of experience in public life. There’s also a time and a place for new voices, fresh voices, yes, younger voices. And that time and place is now.”That may seem to leave Biden a lame duck for his final six months. But he vowed to continue to pursue his agenda and slipped in an important line about calling for reform of the supreme court – a court that became embroiled in ethics scandals, overturned the constitutional right to abortion and declared presidents immune from prosecution for official acts.“The great thing about America is, here kings and dictators do not rule – the people do,” Biden concluded. “History is in your hands. The power’s in your hands. The idea of America lies in your hands. You just have to keep faith – keep the faith – and remember who we are.”In 2020, the year of a global pandemic, Black Lives Matter protests and Trump trauma, Biden’s signature empathy born of personal tragedies made him the right man at the right time to heal hearts and defend democracy. In 2024, his time has passed. That he came to recognise it reluctantly, and decided to pass the baton, taught a lesson about the presidency that Trump will never learn. More

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      US prosecutors retool January 6 plea deals after supreme court ruling – report

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      US prosecutors are “beginning to offer retooled plea deals” and drop charges in cases related to the January 6 attack on Congress, CNN said, citing legal filings in the weeks since the rightwing-dominated US supreme court narrowed how prosecutors can charge rioters with obstructing an official proceeding.The report noted a Monday filing concerning five members of the far-right Proud Boys group, which said each defendant had been offered a plea deal not including the obstruction charge.Should the deal be declined, CNN said, the obstruction charge would be dropped and the men taken to trial on other charges.A rioter famously seen carrying a Confederate battle flag through Congress is also among prisoners or defendants whose cases are being reassessed.On 6 January 2021, Kevin Seefried, from Laurel, Delaware, was part of the mob that stormed the Capitol at the urging of Donald Trump, seeking to stop certification of Joe Biden’s 2020 election win.A famous picture showed Seefried underneath portraits of the senator and vice-president John Calhoun, a champion of secession in the early 19th century, and Senator Charles Sumner, a leading voice for union and the abolition of slavery in the civil war years.In February this year, Seefried wept as he was sentenced to nearly three years in prison for obstruction of an official proceeding, as well as misdemeanour charges.But he was soon released to await a decision in Fischer v United States, a supreme court case concerning the obstruction charge.In late June, the court’s decision narrowed the grounds on which the charge could be used in January 6 cases.According to the chief justice, John Roberts, the obstruction charge should be applied to whether a “defendant impaired the availability or integrity for use in an official proceeding of [actual] records, documents, objects, or … other things used in the proceeding, or attempted to do so”.The opinion was sent to an appeals court for further consideration. Prosecutors were left to work out how to link the obstruction charge to threats to actual records, in particular the electoral college certificates used to formalise results, rather than to the general attempt to overturn an election.The supreme court decision prompted outrage among court observers.Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, or Crew, said Roberts and the other five justices who ruled in the majority had helped “insurrectionists dodge accountability”, adding: “If attempting to block the certification of the 2020 election isn’t obstructing an official proceeding in the court’s eyes, then what is?”The US attorney general, Merrick Garland, was also disappointed, saying the court had “limit[ed] an important federal statute that the [justice] department has sought to use to ensure that those most responsible for that attack face appropriate consequences”.Nonetheless, Garland said, “the vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the department charged a January 6 defendant only with the offense at issue in Fischer.”Though the department would “comply with the court’s ruling”, Garland said, it would “continue to use all available tools to hold accountable those criminally responsible for the January 6 attack on our democracy”.Earlier this month, the US justice department released statistics showing how January 6 cases would be affected by the supreme court ruling.More than 1,472 people had been charged in relation to the attack on Congress by the time the court said it would consider Fischer, it said. Of those people, “roughly 259 … were charged with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so”.Of those 259 defendants, Seefried and 132 others had been sentenced. Of those 133, the department said, 76 were convicted of obstruction and other felonies while “approximately 17” were convicted on the obstruction charge but no other felonies and were then still serving prison time.“Nearly all” the other 126 defendants were on pre-trial release, the justice department said.The department said it would review “individual cases against the standards articulated in Fischer, as well as the anticipated ongoing proceedings related to Fischer in the DC circuit, to determine whether the government will proceed with the charge”.The department also noted the wide range of other charges against January 6 rioters, many concerning violent conduct.“Approximately 531 defendants have been charged with assaulting, resisting, or impeding officers or employees,” it said, “including approximately 157 individuals who have been charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer.”Fourteen convictions have been secured for seditious conspiracy, the most serious charge arising from the Capitol attack.Running for president again, Trump leads Biden in most polling.He has promised pardons to those imprisoned over January 6. More

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      American rule of law is vanishing at the tips of Trump-appointed judges’ pens | Moira Donegan

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      Donald Trump stole thousands of classified documents when he left the White House in 2021, according to prosecutors, and shoved them in unsecured areas around the tacky Florida golf club where he lives. He kept them in basements, bathrooms and ballrooms; they were often unlocked, accessible to anyone who happened to wander by, as dozens or hundreds of people do, every day, at Mar-a-Lago. Trump refused to return the documents when asked; he also lied about what he had.On at least one occasion in 2021, he was recorded showing off one of the classified documents to a visitor, apparently for the sake of his own aggrandizement. “It is like highly confidential. Secret,” Trump said to the man, who was not authorized to see the information. “See, as president, I could have declassified it. Now, I can’t, but this is still a secret.”Aileen Cannon, a US district court judge in Florida whom Donald Trump appointed during his last year in office, has done everything in her power to make sure Trump is never held accountable for the theft of the documents. Since the special counsel Jack Smith’s case – widely considered to be the most legally airtight of the several criminal prosecutions against the former president – was formally assigned to Cannon in June 2023, she has often acted as if she was a member of the defense team; denying routine motions from the prosecutors, antagonizing Smith and his team personally, and dragging on the proceedings in endless rounds of briefings and delays, all surely meant to postpone the case until after Trump retakes the White House.On Monday, she dismissed the case entirely, throwing out all the document-related charges against Trump. Her purported reasoning? That special counsels such as Jack Smith are unconstitutional. Smith signaled that he plans to appeal the decision.Cannon’s ruling flies in the face of decades of precedent, going back to the Watergate era, wherein courts, including the US supreme court, have repeatedly reaffirmed the constitutionality of special counsels and their appointments. But although Cannon wears a robe, she is not interested in the law, which is a mere pretext for her bald effort to advance and protect Trump’s interests. She is not a judge any more than the man who works at the mall every December is Santa Claus. She has the trappings and the power, but none of the expertise, none of the obligations and none of the shame.Cannon’s dismissal of the Trump documents case was predictable: the prosecution, widely considered to be doomed, came at the end of months of strategic moves on her part meant to provide Trump maximum leeway to message publicly about the case, and minimum threat to his electoral process. When Trump lied about the FBI raid on his home, saying that it was a plot on his life orchestrated by the Biden administration, Smith, fearing violence and public misperception, asked for a gag order. Both the sensitivity of the case and the egregious danger posed by Trump’s conduct should have made it an easy call; but Cannon denied it, allowing Trump to continue lying about the raid.At one point during preliminary proceedings, Cannon outright refused to let prosecutors see the documents that had been seized from Mar-a-Lago, a move that prompted a reversal and rare rebuke from the appeals court above her, Atlanta’s 11th circuit. That 11th circuit warning seems to have prompted the first instance in which another federal judge urged Cannon to recuse herself from the case. It would not be the last.Cannon’s single-handed nullification of the classified documents case demonstrates the core problem with what has been, until now, the dominant theory of how to hold Trump accountable for his crimes: with the law. Increasingly, it seems prosecutions in the federal courts are a futile exercise when it comes to the former president. And that’s because the courts are packed with Republican partisans, Trump appointees and personal Trump loyalists, and large numbers of other right-leaning judges who aim to use their seats to roll back the social progress of the past century, further Trump’s authoritarian agenda, and shield him permanently from consequence. To the extent that they are controlled by these actors, the federal courts will never provide a check to Trump’s power. They will only augment it.This reality was underscored on 1 July. The supreme court’s last decision of the term, Trump v United States, created, out of thin air, a vast and near-absolute immunity from criminal prosecution that the court’s conservative justices say applies to presidents – or, at least, applies to their favorite former president.That decision stemmed from another of Smith’s prosecutions, in the January 6 case; in his concurrence, Justice Clarence Thomas, writing alone, signaled that he thought that perhaps special counsels such as Smith might not be legal after all. It was less like a real, considered legal position than like a set of instructions for Cannon: throw the documents case out on these grounds. Her argument mirrors Thomas’s; she took her marching orders straight from the top.The 11th circuit is likely to reverse Cannon’s dismissal, and it’s possible that Smith will get a chance to re-file his charges – possibly in Washington, closer to the site of the original illegal conduct, which will have the benefit of permanently removing his case from Cannon’s court. But the case will not be heard before the election, and so it may never be heard at all.Even prosecuting Trump might turn out to offer little more than a delay of the inevitable: the complicity of the courts in Trump’s criminality reveals an institutional rot that even locking him up would not solve. If the courts cannot hold the president accountable – or rather, if they choose to exempt one man from their authority, and instead bend themselves to his will – what, exactly, is the check on the presidency? How can a powerful criminal be held to account? Where does the rule of law apply, and where does it vanish?We have at least one answer: the rule of law vanishes at the tip of a Trump judge’s pen.

      Moira Donegan is a Guardian US columnist More