DC Circuit Judge Karen Henderson – Aileen Cannon LITE?

THERE’S your problem!” (Mythbusters)

It’s been three weeks now since oral arguments were heard on Trump’s appeal claim of Presidential Immunity. Since Then? Still not a peep from the DC Court of Appeals panel that caught the case.  Prior to the January 9 oral arguments pundits were talking about how “swiftly” they were moving. I’ve disagreed, given judge Chutkan’s initial ruling that’s being appeals was handed down on Dec. 2, 2023. Still, starting the afternoon of Jan. 9 legal experts expected a ruling within days. Maybe a week. Even the “this has to be done exactly right” types said two weeks at most. It’s now THREE weeks so WTF is taking so long?

As the headline suggests I think it’s possible if not likely DC Circuit Judge Karen Henderson is doing a version of Florida judge Aileen “Loose” Cannon LITE. Even before being assigned Trump’s Florida trial Cannon might as well have hired skywriters to say “Whatever Trump Needs I’ll Give Him.” Her handling of the National Security case makes it clear she has no intention of any trial taking place until after the November election. Sure, she still has the last week of May on her calendar for things to begin. And if anyone believe THAT she’ll be happy to sell them a box of Trump Steaks and/or a case of Trump Vodka. She might as well have a big “I (picture of a heart) Trump button pinned to her robe.

I’ve complained here on Politizoom already about the delay from the DC Circuit. Some here have agreed with me and some not. I’ll freely concede since those the latter category can point to pundits with actual DC court (including appellate) experience saying compared to normal timelines things have moved quickly I might be wrong. But I’m not changing my opinion. For starters let’s leave aside this is NOT a normal case nor is it happening in normal times. I mentioned that even those I call “apologists” felt in a couple of weeks there’s be a ruling. I think MY definition of urgency is should be used and again cite Bush v Gore back in 2000. Moreover, last week I sometimes saw some commentary about it did seem to be taking longer than expected. And why.  So I say this has taken too long and if anyone disagrees well we can agree to disagree.

If, like me (all the pundits did) you listened to the actual oral arguments it was clear all three judges were at best dubious of the arguments advanced by Trump’s lawyer. Skeptical is probably a better description and for a couple of the judges borderline dismissive even. However, the punditry started to talk about the desirability of a “Per Curiam” ruling as in getting everyone to agree to a single opinion instead of separate (signed) opinions. More importantly they gave more attention to judge Karen Henderson’s questions regarding the “outer perimeter of Presidential duties” claim of Trump’s. If you read the just provided Wikipedia link like I did when I first looked her up last week (due to the pundits mention of her perhaps being the reason for the delay) like me your heart will sink.

Henderson was first appointed to the federal bench by Reagan for a District Court position down in South Carolina. Bush 41 elevated her to the DC Circuit in 1990 to replace Ken Starr who had been appointed Solicitor General. Think about that, and her positions since then on various issues shouldn’t come as any surprise. Including multiple Trump friendly opinions. But in hindsight she telegraphed that once again Trump might find a friend in her back in December. This Newsweek article back back then noted in December suggests that she telegraphed we’d be where we now are. From Newsweek:

“Judge Henderson would stay any further action by this court until the United States Supreme Court has taken final action on the Government’s petition for certiorari before judgment now pending before it in this case,” Monday’s order states.

Had Henderson succeeded, it would have delayed Trump’s case even further, as the Supreme Court would first have had to make a ruling, and then the case would have been passed down to the appeals court for decision.

Given what I’ve told you so far I hope you’ll agree a picture is forming. One of Henderson engineering a slow-walking of Trump’s DC trial. With that, let’s take stock of just where we are now and the future. There’s an article by Politico today that explores what to me is a troubling scenario both now and to come. Politico sums it up well:

Even if the appeal were resolved this week against Trump, that calculation would put his earliest trial date in late April. But if the D.C. Circuit and the Supreme Court take additional weeks or months to deliver a final ruling, the opening days of Trump’s trial could be pushed to the summer or fall.

Keep in mind that while she hasn’t officially said so judge Chutkan has already conceded there’s no way she’ll be able to stick to her original trial schedule, and that the March 4 date will be pushed back. She’s scheduled a different Jan. 6 related trial for early April. It won’t take long, so in theory at least a late April or early May Trump trial is still possible. However, above it mentions between the DC Circuit (how long they might take to decide on the inevitable Trump request for an en banc hearing, and if they surprise everyone and grant it  how long THAT will take) and SCOTUS it’s not looking good.

I still say SCOTUS wants no part of this and a solid ruling from the DC Circuit will result in them denying Cert. However, they can take their sweet ass time doing so and the delay from the DC Circuit is giving the six Federalist Society groomed appointees cover to do so. That means the earliest a trial in DC could start would be mid to late summer.  When it comes to that Politico goes on to say:

If, at that point, Trump retains his grip on the 2024 GOP presidential nomination, he and his allies are certain to exert intense pressure to postpone the trial until after the election. Chutkan, an Obama appointee, could plow forward with a trial anyway — and she’s repeatedly indicated that the campaign calendar has no bearing on her own.

The linked Political article talks about how during oral arguments the panel seemed poised to swiftly reject Trump’s appeal. However it also noted there seemed to be differing reasons and therein lies the problem. Henderson in particular has drawn increasing notice when it comes to her questions which indicate what her concerns might be. You might say “So what?” Instead of a short and focused Per Curiam opinion let them each write their own version of why they are rejecting Trump’s appeal. Well, first of all that would increase the chances of SCOTUS, however reluctantly having to weigh in after all and the time that would take would likely mean game over. At least until after the election. However there’s more to it than that:

Henderson, the panel’s senior judge, had expressed opposition to taking up the case on an expedited basis and also had the most cryptic outlook based on her questions during oral arguments. As the most senior judge, she has the right to write the majority opinion if she’s in the majority. And even if she disagrees with her colleagues, she could potentially hold back the court’s ruling for weeks or months while she crafts a dissenting opinion.

That last part is bad. Really bad but it gets worse:

There is no formal rule or policy at the appeals court that allows the majority on a panel to force the release of a ruling when another member of the panel hasn’t completed his or her opinion, according to Matthew Seligman, a former D.C. Circuit law clerk who is co-counsel on a friend-of-the-court brief in the case filed by former Republican officials opposing Trump’s immunity claim.

If you’ve read this far I thank you. If you’ve done so and think I’m being unfair in suggesting a comparison between Henderson and Cannon sorry. Henderson is experienced and can cover her tracks a lot better than Cannon’s been able to do.  Plus, she’s pushing eighty years old and can retire anytime she wants. If she’s engaged in a more skilled, slicker and more subtle version of Cannon’s hackery Henderson isn’t risking her own future like Cannon is. So no, I don’t think I’m being unfair if I’m right about Henderson trying to give Trump exactly what he wants which is a delay of his DC trial until AFTER the election. When, if god forbid he wins he’ll order DOJ to shut the whole thing down.

During the past week as the comments about Henderson and her touching on the “outer perimeter” argument from Team Trump have percolated in my mind as I said a picture started to form. Once of a robed hand writing on the wall “Mister Trump, You’re getting your delay.” And on the bottom right the artist’s signature will be Henderson’s.

I loved the old Mythbusters show and if you watched it with any regularity you know how both Jamie and Adam had a running gag of when an “issue” came up that halted things and required a fix one of them would point and say “THERE’S your problem!” I’m pretty sure when it comes to this appalling delay with Trump’s ridiculous appeal the problem is judge Karen Henderson. Since last Friday came and went without a ruling from the DC Circuit with each passing day my belief Trump will sit in a criminal court prior to the election grows. I’m a combination of fearful, disgusted and angry. But it’s looking to me like Trump’s got a “friend” in the right place at the right time. That just like he lucked out down in Florida drawing judge Cannon, he again lucked out in DC drawing judge Henderson for the panel that would hear his appeal.

And from where I sit it sure as hell is looking like judge Henderson is judge Aileen “Loose” Cannon LITE.