You may have been surprised (or maybe not) when judge Aileen Cannon abruptly dismissed the classified documents case against former President Donald Trump. We dig into how and why that happened.
Transcript
[00:00:00] Hannah McCarthy: Christina. Hello.
[00:00:02] Christina Phillips: Hello, Hannah.
[00:00:05] Hannah McCarthy: Uh, so we are here today to share a quick update with our listeners. This is about a major case involving former President Donald Trump, which, at least for now, is not a case at all because it was dismissed by Judge Aileen Cannon.
[00:00:20] News Footage: Breaking news on the classified documents case. Let's get right to Ken Dilanian. Ken? Jose, in a remarkable development, Judge Aileen Cannon in Florida has dismissed dismissed the indictment against Donald Trump in this classified documents case and his co-defendants on the grounds...
[00:00:37] Hannah McCarthy: And I'm going to get into that dismissal in just a moment. But first, this is Civics 101. I'm Hannah McCarthy.
[00:00:42] Christina Phillips: I'm Christina Phillips.
[00:00:42] Hannah McCarthy: Okay. So, Christina, can you please remind our listeners what was at stake here? What is this case that we're talking about that basically doesn't exist right now?
[00:00:53] Christina Phillips: So essentially, really quickly, what Trump has been charged with is holding on to willfully documents he shouldn't have that had sensitive national security information in them. Um, 31 counts of willful retention of national defense information, as well as conspiracy to obstruct justice, corrupt concealing of documents, scheming to conceal documents, and making false statements all when the federal government tried to get those documents back. And this case was brought by the special counsel, Jack Smith, on behalf of the Justice Department.
[00:01:26] Hannah McCarthy: Okay, that was actually great. I feel like that was a really good breakdown. Thank you. And, you know, I did refer to it as something that was at stake, right. Because I'm talking about the case being dismissed. Uh, it may well be at stake again soon. I will get to that. But just two days after the former president survived an assassination attempt at a campaign rally in Pennsylvania, the judge presiding over this case issued a 93 page ruling that rests on the following statement. "The superseding indictment is DISMISSED" - that's in all caps - "because Special Counsel Smith's appointment violates the Appointments Clause of the United States Constitution."
[00:02:08] Hannah McCarthy: And Christina, you know me. I see Constitutional clause and my little civics heart just has to at least try to make an episode about it. Um, so, Christina, do you know what happened here with the dismissal?
[00:02:23] Christina Phillips: Uh, no. Absolutely not, I have to say. And when we were talking about this in our morning meeting yesterday, I had a moment like I had seen this and hadn't had time to read about it, and I was trying to read about it as we were talking about it as a team. And I was like, wait, what? What? Hold on. What about his appointment? Jack Smith's appointment? I don't remember this part. There's been so many motions over the pretrial for this case, you know, motions to dismiss on behalf of Trump's legal team. And there had been so many different reasons why they said the case should be dismissed or delayed, that Jack Smith not being properly appointed was not even a reason that really registered to me. So I was like, hang on, that - that's the thing we're talking about right now?
[00:03:09] Hannah McCarthy: Yeah. And okay, so the other thing is that the the defense team here that did raise this idea of, uh, basically challenging the constitutionality of Jack Smith's appointment. They didn't even really push that particular defense until they were encouraged to do so by some conservative groups.
[00:03:30] Hannah McCarthy: So the dismissal is really interesting. Christina. It has been described at various times as stunning by members of the press. Um, because it is one of many things, one of many things that Trump's defense attorneys kind of threw at the wall, and that was not necessarily expected to stick, at least by, you know, many members of the press, by a lot of legal scholars, by the prosecutorial team. So the defense team, they challenged, essentially, Jack Smith's appointment as illegal. Now, Christina, can you just clarify, like, who Jack Smith is? I know we're saying that he did the investigation, but, like, who is he?
[00:04:09] Christina Phillips: Okay, I do have to say just I feel a little bit better about me being like, hang on, what was this? If you're saying that a lot of other people did not really think that this particular reason raised by Trump's defense attorneys was going to stick. Um, but so to the question of who Jack Smith is, what is the special counsel - so when the Justice Department is concerned that they will have a conflict of interest if they investigate something, or if the Justice Department decides that it's in the public's best interest to have someone outside of the government conduct an investigation, they hire a special counsel to do it for them.
[00:04:46] Hannah McCarthy: So a special counsel is like a third party and it's a lawyer.
[00:04:50] Christina Phillips: Yeah, right.
[00:04:50] Christina Phillips: So when federal agents found classified documents in President Joe Biden's garage, for example, Attorney General Merrick Garland decided to appoint a special counsel, someone who doesn't actually already work for the Justice Department, to investigate whether Biden mishandled those documents.
[00:05:09] Hannah McCarthy: And I do know that in that case, that special counsel, his name is Robert Hur, decided that Biden had not committed the kind of wrongdoing that warranted criminal charges.
[00:05:21] Christina Phillips: Which is not, by the way, what Trump's special counsel investigation found.
[00:05:24] Hannah McCarthy: Right. And the biggest difference there is that, I mean, like super broadly, Biden cooperated, Biden handed things over. And Trump, as you kind of outlined, did not. So, you know, there was sort of resistance on Trump's end. Biden didn't really resist it.
[00:05:40] Christina Phillips: And Trump is actually accused of, uh, doing the opposite, trying to withhold this information, knowingly keeping things from the federal government.
[00:05:48] Hannah McCarthy: Right, right. Um, but again, right now that is irrelevant because Judge Cannon, the US district court judge in Florida who is in charge of the Trump documents case, says Jack Smith never actually had the authority to investigate. So this is not a ruling about the merits of the case at all. It's a ruling about whether or not the investigation alone was basically done in the proper way. Right. So why like what is the reasoning here? Judge Cannon concluded that there is no legal basis for the Attorney General appointing Jack Smith.
[00:06:26] Christina Phillips: Yeah. So I guess my big question here is if that is true, how was he appointed? What is her argument? To say that there was no legal basis for his appointment? Um, and the bigger question, I guess, is how are any special counsels appointed?
[00:06:46] Hannah McCarthy: Okay, so I'll answer the last question first. So the Justice Department says essentially that their ability to do this comes from the United States Code and from their own regulations. And, Christina, we still have not done an episode on United States Code. But essentially the code is the law. It's the stuff that Congress passes. It is the big book full of general and permanent US laws.
[00:07:11] Christina Phillips: So there's our episode on on the US code. It's the Big Book of Rules. So there are actual laws on the books. This is what you're saying, is that there are actual laws that allow the AG to appoint a special counsel.
[00:07:25] Hannah McCarthy: Well, um, Judge Cannon says that these laws do not actually allow the AG to do this. So what the statutes say, right. The statutes in the code say in brief, is this the attorney general has broad supervisory powers. The attorney general can delegate those powers to subordinates, and the Attorney General can authorize a special assistant to conduct any kind of legal proceeding.
[00:07:56] Christina Phillips: All right, so, uh, you just said special assistant, right? Not special counsel.
[00:08:03] Hannah McCarthy: I did say that. And you know that that lack of specificity, while the Justice Department and several courts have interpreted it one way, Judge Cannon is, you know, seeming to interpret it another. And Judge Cannon says that these statutes do not give the attorney general - and this is from Judge Cannon's actual opinion - quote, "broad inferior officer appointing power or the ability to appoint the kind of officer with the kind of prosecutorial power that was wielded by Jack Smith." Cannon says that we have an appointments clause for a reason.
[00:08:40] News Footage: She says the bottom line is this the appointments clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The government's position...
[00:08:55] Hannah McCarthy: So, Christina, do you know the appointments clause?
[00:08:59] Christina Phillips: Uh, is that the one that says that the president can appoint people with the consent of the Senate?
[00:09:04] Hannah McCarthy: That is the one. Judge Cannon says that Jack Smith's appointment violated that constitutional clause. Basically, if the government had wanted to appoint Jack Smith the special counsel, they would have had to do it in the same way that other U.S. attorneys are appointed, and that way is the president nominates them and the Senate confirms or Congress would have to pass a specific law. So this gets to the specificity question, right. Specifically, a law consistent with the Appointments Clause that creates exactly that kind of appointment authority.
[00:09:46] Christina Phillips: Has this ever happened before? Like, has a judge ever issued a ruling specifically about special counsels and whether they're allowed to be appointed?
[00:09:56] Hannah McCarthy: So this is actually a really important question because the answer is yes on several levels. So the Supreme Court is largely believed to have upheld the appointment of a special prosecutor to deal with the Watergate scandal. Um, and that is often what is referenced when questions about a special prosecutor or a special counsel come up before a court. So Judge Cannon called that particular ruling, which I'm going to talk about a little bit more in just a second here, unpersuasive. Cannon also rejected the precedent set by appeals courts that upheld the appointments of a special prosecutor in the Iran-Contra affair, and the special counsel who investigated Russian interference in the 2016 election.
[00:10:45] Christina Phillips: So Judge Cannon says all of this precedent is bad precedent.
[00:10:49] Hannah McCarthy: When it comes to the Supreme Court case, which, by the way, is US v Nixon, cannon says that actually it is not precedent really at all. And the big sticking point here, Christina, is dicta.
[00:11:05] Christina Phillips: I'm sorry. What-a?
[00:11:07] Hannah McCarthy: Um, dicta, or the singular dictum, means something that a judge writes in an opinion or a statement that is quite literally beside the point of the case, something that they say in passing. So the example that we care about here is in an opinion back in 1974, in US v Nixon, referencing the statutes that allow the A.G. to appoint a subordinate officer with prosecutorial powers. Both the Justice Department and appeals courts have taken that reference to mean, indeed, that special prosecutors or counsels can legally be appointed and do have prosecutorial power.
[00:11:57] SCOTUS Archival Sound : Prosecution for the government was commenced by a special prosecutor who had been appointed by the Attorney General pursuant to federal regulations. The special prosecutor had been given broad authority. By a By regulation of the Attorney General, the Special prosecutor was given unique authority and tenure concerning specific investigations and prosecutions. His authority is to represent the United States as a sovereign, and it includes express authority to contest any privilege asserted by the executive branch.
[00:12:43] Hannah McCarthy: But, you know, Cannon says no, no, no, that is dictum. That is beside the point of this Watergate case. It is not the law.
[00:12:52] Christina Phillips: Now, I don't know if this actually matters, but, uh, what are people saying about Cannon's ruling?
[00:13:00] Hannah McCarthy: People are saying a lot. Um, some people are really surprised, as you are. Some say that they absolutely did see this coming, given how canon has, in their eyes, favored Donald Trump in rulings already. Uh, Donald Trump is unsurprisingly thrilled and considers this the first step in a fight against a department that he says he sees as having been weaponized against him. Uh, Republican Trump supporters have made it clear that they are thrilled, notably Congressman Matt Gaetz, who posted, quote, future Supreme Court Justice Cannon with a picture of the judge on X. One critic replied to this post with, are you admitting quid pro quo?
[00:13:44] Christina Phillips: Meaning are you revealing that Judge Cannon did this in order to one day get appointed to the SCOTUS bench?
[00:13:50] Hannah McCarthy: That is the implication here. On the other side, Democrats slammed Cannon. They said this decision was politically motivated. Legal scholars are debating about this. They are pointing out that, in his opinion on the recent presidential immunity case, Clarence Thomas actually suggested that Jack Smith was illegally appointed. So, you know, kind of put down a playbook that could be picked up. And some are calling Cannon's decision a Clarence Thomas concurring opinion.
[00:14:24] Christina Phillips: Okay, I just have to say, there are so many layers to this, and this is already a very, very complicated case or really pretrial to a case. It's - this is so complex.
[00:14:37] Hannah McCarthy: I know, it's so interesting because the dismissal itself is, on its face, kind of simple, right? And the reasoning seems really straightforward. But there are so many layers here and there's so much pushback, you know, and people are pointing out so many elements to it. There's a lot going on. And then, you know, that doesn't even take into account what a lot of people consider a major layer, the several instances, actually, of Judge Cannon, you know, issuing certain decisions, making certain rulings, having to do with this case in particular that have been overturned, overruled by other courts. So there has been quite a bit of, you know, doubt thrown Judge Cannon's way, a lot of questions as to whether or not Cannon is the right judge for this, etc.. But Christina, you know, at the end of the day, there are three big things that you need to take away from what has happened here.
[00:15:34] Christina Phillips: Okay. Yes. Please hit me. Give me the three things I can take away from what seems to be a very, very complicated situation.
[00:15:44] Hannah McCarthy: Okay, at number one: this is unequivocally a major victory for Trump. Everyone, including Trump's lawyers, considered this particular case to be of the biggest concern for the former president. Having it dismissed is a boon. Two: the Justice Department has already authorized an appeal, and this case could someday end up at the Supreme Court. Three: If Donald Trump wins the election, he will be restored to power over the Justice Department and the department has said it will continue to pursue cases against Trump until Inauguration Day. But after that, the chances of prosecuting the president could very well and probably will if he is elected, go out the window.
[00:16:34] Christina Phillips: I do feel like every new development these days, pretty much every day, sparks a whole new list of Civics 101 stuff we need to come back to in November and beyond.
[00:16:47] Hannah McCarthy: And so we will. Christina. So we will. All right, let's go to our jobs.
[00:16:54] Christina Phillips: I'll see you out there.
[00:17:05] Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with help from Rebecca Lavoie, our executive producer, and Christina Phillips, our senior producer. Nick Capodice is my co-host. He is currently out sick. Nick feel better. Catherine Hurley is our intern and she's crushing it. Music in this episode comes from Epidemic Sound, and you can find all of the rest of everything we have ever done at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.