Wednesday, September 07, 2022


Noah Berlatsky explains why focusing on District Judge Aileen Cannon's flawed understanding of the law and obvious deference to Donald Trump (the man who awarded her a lifetime appointment to the bench) distracts from "the real dangers, and real evil, of the current far right assault on the judiciary".

Cannon's ruling fails to meet even the most basic professional standards, not because she is incompetent, but because she has contempt for established laws and professional standards. Berlatsky says Cannon's ruling is both "a warning" and "a chilling assertion of power" because it is proof that she (and the extremist movement of which she is a part) believe "they retain rightful power regardless of elections or laws".
Trump has argued that the documents at Mar-A-Lago were not sensitive because as president he had the absolute authority to declassify them, even if he told no one he had done so. This "magic wand" defense sounds ridiculous. But it also sounds fascist.

Hitler's central theory of law was called the Führerprinzip, or leadership principle. Basically it meant that the leader's word was above the law. The leader shaped the law; the law did not bind the leader, who "was not subject to any constitutional checks and balances," per historian David Welch. The leader's power in fascism is (like Trump's mental declassification) virtually mystical. It does not arise from written law or from established institutions. Rather, it comes from the leader's spiritual connection to the masses.

"The purpose of the law in the eyes of the Nazis was not to apply long-held principles of fairness and justice," historian Richard Evans explains, "but to root out the enemies of the state and to express the true racial feeling of the people."

From this perspective, Cannon's decision is not a failure of reasoning. It's simply the application of an alternate set of legal principles. Or, as composer Frank Wilhoit put it, "Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect." . . .

This is only illogical if you think that Trump's power as president came from the law. If you are operating under Führerprinzip, or something like it, then Trump's power comes from embodying the spirit of MAGA, and always puts him above the law. . . .
This is the actual legal reasoning behind Trump's refusal to accept the 2020 election results. From the traditional empirical and legal standards, there was no election fraud, and Biden's victory was valid. But if you hold to Führerprinzip, as Trump does, then any vote cast against the leader is by nature illegitimate and illegal. The law is there to crush those who defy the leader. Trump, from the view of Trumpism, isn't lying when he says he was the winner. Or his lying is justified because is serves a greater truth. Either way, Trump remains president no matter the law, because the true purpose of the law is to validate his presidency.

The conservative legal movement that Trump advanced has been moving more and more towards Führerprinzip and the law of MAGA. The Supreme Court has mostly abandoned any pretense of ruling by precedent, truth, or reason, and has signaled its willingness to abandon voting altogether and simply allow Republican legislatures to choose the next president . . . 

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