Good turn of events, made possible by a still sturdy judicial branch

by Laurence H. Tribe and Dennis Aftergut

Last week was a good week for the rule of law, the courts and the Constitution.

Last Thursday, Dec. 1, the U.S. Court of Appeals for the 11th Circuit handed a resounding victory to Attorney General Merrick Garland against former President Donald Trump. The decision rejects the bizarre decision by a renegade federal district court judge, Aileen Cannon, to appoint a special master to review the documents the government seized in a court-authorized search from Trump’s Mar-a-Lago residence.

Judge Cannon’s ruling, the appellate court makes clear, was a usurpation of power that did not belong to the courts. The opinion opens with a blunt rejection of Cannon’s assertion of authority to hear Trump’s case at all. It eviscerates every element of Cannon’s reasoning, reminding her of the constitutional separation-of-power limitations on the power of federal courts. And it patiently explains how federal law enforcement would grind to a halt if all defendants could get the kind of help she gave defendant Trump.

And as for her astounding claim that different rules apply to protect former presidents, the court decisively renounces it: “To create a special exception here would defy our Nation’s foundational principle that our law applies to all, without regard to numbers, wealth, or rank.”

No one is above the law.

The conservative three-judge panel issuing this ruling includes two judges appointed by Trump and one appointed by George W. Bush. Let Trump try to claim it was a partisan decision.

This ruling gives a green light to the newly appointed special counsel, Jack Smith, who is charged with investigating federal crimes committed leading up to the Jan. 6, 2021, insurrection and any crimes involving top-secret government documents at Mar-a-Lago. The investigation can now move full speed ahead to hold anyone who has committed crimes accountable, including the former president.

Trump will, of course, ask the Supreme Court to intervene, just as he did in an earlier phase of this case to no avail. But the court’s rebuff at that stage, coupled with the irrefutable reasoning of the appeals court decision, makes it all but certain that Trump will fail.

Last week also brought other critical court decisions affirming the rule of law.

On Tuesday, Nov. 29, a unanimous jury convicted Oath Keeper founder Stewart Rhodes and his top lieutenant, Kelly Meggs, of seditious conspiracy — the most serious federal crime short of treason — in plotting with others to prevent the lawful transfer of presidential power for the first time in American history. Their preplanned Jan. 6 attack on the Capitol was meant to obstruct the execution of the laws of the United States.

Also that day, South Carolina’s Supreme Court unanimously ordered former Trump White House chief of staff Mark Meadows to testify before a grand jury in Atlanta investigating the former president’s attempt to overturn the 2020 election results in Georgia.

On Thursday, Dec. 1, a federal court rejected claims of executive privilege by Trump’s former White House counsel Pat Cipillone and his top aide, Patrick Philbin, and required them to testify before the grand juries investigating the criminal plot that culminated in the Jan. 6 insurrection. That judicial decision provided yet another boost to the special counsel’s work.

In Arizona on the same day, a state court ordered the Republicans on the Cochise County Board of Supervisors to stop their defiance and certify that county’s Nov. 8 election results. Within hours, they did.

Together, these decisions in a single week sent a powerful message that the nation’s courthouses remain central to preserving constitutional order. Notwithstanding the attention paid to the U.S. Supreme Court, it is in the nation’s less lofty courtrooms where most of the work of justice takes place.

The state courts and the lower federal courts have proved a strong defense against those who would undermine the rule of law and bring down our constitutional republic. To all who wish to keep it, the rulings last week offer forceful reassurance.

Laurence H. Tribe is the Carl M. Loeb University Professor of Constitutional Law emeritus at Harvard University. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.