Trump's Trials - Judge's handling of classified documents case invites scrutiny from legal experts

Episode Date: April 6, 2024

This week on Trump's Trials, host Scott Detrow is joined by NPR Justice Correspondent Carrie Johnson and NYU law professor Melissa Murray.This week Judge Aileen Cannon dismissed one of former President Donald Trump's motions to dismiss the Florida classified documents case. Trump argued that when he left the White House he designated the highly sensitive documents as "personal" under the Presidential Records Act. But Cannon has not prevented Trump from using that same argument as part of his defense — something Special Counsel Jack Smith pushed back against in a recent brief. Topics include: - Presidential Records Act- Jury instructions - Gag order in hush money case- Civil fraud bondFollow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Just what is happening in the Florida documents case? And how should we think about the way the judge is approaching it? From NPR, this is Trump's Trials, I'm Scott Detro. We are less than two weeks out from the start of the New York hush money case, the first criminal case to go to trial. We also have more key arguments coming up soon at the US Supreme Court. But before this podcast really digs in on that first criminal trial, we are going to use this week's episode to catch you up on everything that's been going on in the Florida

documents case. And it's been interesting and a little confusing. This week, Judge Eileen Cannon rejected one of former President Trump's motions to dismiss the case against him, which remember centers around his alleged possession of classified documents and his resistance to efforts by the federal government to get them back. Cannon had earlier dismissed another Trump attempt to get the case tossed, but, but, but, but, Cannon has continued to issue pre-trial decisions

that have a lot of legal experts concerned or confused. And this week in a filing, special counsel Jack Smith even called Cannon's recent order on jury instructions, quote, fundamentally flawed. And while the trial is still nominally set to start next month, no one sees that as a real trial date, and Canon has yet to set one. We will sort through all of that and more after a quick break. This week's guests are NPR Justice correspondent Kerry Johnson

and NYU Law professor Melissa Murray. Stick around. our app. some are calling a life-changing celestial alignment. Prepare for the full body experience with Shortwave, the science podcast from NPR. Instead of scrolling mindlessly, engage mindfully with the NPR app. With a mix of on-demand news, stories from this station, and your favorite podcast, you can relax without shutting off your brain.

Download the NPR app today. Big news stories don't always break on your schedule. But with the NPR app, news, culture, and podcasts are ready when you want them in your pocket. Download the NPR app today. We are back and I'm joined now by NPR Justice correspondent, Carrie Johnson, as well as law professor, Melissa Murray, whose book, The Trump Addictments, is out now. Welcome back to the podcast. Thanks for having me. Thanks, Scott.

I want to start with this question to both of you and Kari, I'll start with you. What actions or statements from Judge Cannon have really stood out to you? I got to go back all the way to the start of this investigation. Remember, in 2022, Judge Cannon basically tried to appoint a special master to review documents the FBI had seized from former President Trump. And it was such a bizarre move that the appeals court in the 11th Circuit, a very conservative panel of that court, reversed her, basically saying she was giving Trump special treatment that no other defendant would get who had been searched and whose materials had been seized.

And that sort of set the tone for the rest of this case in so many ways with her taking steps that were maybe legally questionable. Melissa, how about you? I think Kerry's exactly right. She's actually been rebuked twice by the 11th Circuit, which is the intermediate appellate court above her. And Jack Smith in this most recent filing essentially gestured toward the idea that he would go to the 11th Circuit again because he believed her most recent request regarding

the Presidential Records Act was so far out of keeping with the laws. And then of course, there is also the slow walking of this case, which is a pretty much open and shut case in many respects. We're going to get into a lot of those details down the line. We're going to talk about these jury instructions that Judge Cannon asked both sides to produce and why that was so controversial. But Carrie, a lot of this conversation stems from the Presidential Records Act and how it is or

is not relevant to this case. Can you just back up and refresh us on this act? Sure. The Presidential Records Act was something Congress passed in 1978 after all the controversy surrounding former President Richard Nixon, who remember tried to keep hold of documents and tapes. Congress wanted to make clear that papers a president gets in the course of his or her job belong to the people, not the president, and they're supposed to be under the control of the National Archives. Trump has really resisted that at every turn, but that's the start and the end of it. Is it relevant to this case?

One of his key defenses to these 32 charges of unlawful possession of national security documents is that he had the power to turn those into personal papers. But the special counsel Jack Smith says Trump actually concocted this excuse, this defense, more than a year after he left the White House, not a decision that he made while he was the president. And Jack Smith also says Trump never said he explicitly took this step and made these papers personal. Jack Smith says this week in court papers that this whole idea is pure fiction. Nat. And Melissa, that gets to this jury instruction situation. Can you remind us what exactly

Judge Cannon did and why this led to so much concern and outcry from a lot of the legal community? So jury instructions, just for your audience, are basically directives that a judge will give a jury about various aspects of the law and sort of explaining to them how they ought to take the evidence that's presented at trial and then apply it to the law that is applicable. The fact that she requested jury instructions on the Presidential Records Act suggested that she was buying into this alleged defense or explanation that Donald Trump had offered that, in fact, he was authorized to keep these

and that she was crediting that argument, which many view as specious. Nat. And, Kerry, that gets to the special counsel's response to this request from Judge Cannon really raising concerns about the fact that the way the Presidential Records Act could be treated or viewed in this case is really key and needs to be figured out soon. Why was Jack Smith so concerned about that? Kari Sands The prosecutors seem to think this is an existential issue with respect to their case. They said the judge's legal premise with respect to the Presidential Records Act is totally wrong.

It has nothing to do with this trial. And they wanted the judge to rule relatively soon because they may want to appeal that issue. They don't want a trial to start and to get into a whole bunch of arguments with the judge about former President Trump's defense, including the Presidential Records Act issue, and then have the trial underway. The judge make rulings against them, against the Justice Department, and the Justice Department basically having no way to appeal and basically double jeopardy attaching. That's what happens after, you know, somebody is prosecuted. You can't prosecute them again. And so it was a very, very powerful set of

arguments and a very lengthy filing from Jack Smith's team this week because this issue is essential to the heart of their case. And if the judge doesn't decide it soon, it could really hurt the case down the line. There's also in criminal procedure, the opportunity for a judge to really kind of intervene in the trial even after a jury has begun deliberating to issue what's known as a Rule 29 motion. And on a Rule 29 motion, the judge can essentially say that based on the law here, it might be the Presidential Records Act, the jury either has rendered an illegitimate verdict or isn't allowed to render a verdict

at all. And it can basically grant an acquittal here. And if that happens on a Rule 29 motion, there's no appeal. Matthew 16 So this is a key question to this case because either this act is a key part of the conversation or it's not. The judge has not issued a firm directive on this and instead has kind of asked both sides to give their arguments about how they would view it. And again, this is all getting really confusing to people who aren't following this closely. But again,

earlier this week, Judge Cannon issues a ruling rejecting Trump's team's request to dismiss the case based on this act. But that still leads to the question of how it could be dealt with in the trial. Carrie, Judge Cannon's ruling also kind of got to how she is thinking about the Presidential Records Act, what she was thinking with these jury instructions requests. And it was a little defensive, wasn't it? Carrie Kennedy It was really defensive. The judge basically said Trump can't get this case dismissed at this stage because of the Presidential Records Act, but she seemed to leave open that issue as a possible defense if and when this case goes to trial. She also said that prosecutors in their filings with

her seemed to be asking for unprecedented and unjust treatment because they wanted this jury instruction issue handled sooner rather than later. And she said that she was basically engaging in this jury instruction conversation out of what she called a genuine attempt to reckon with issues in a case of first impression. So it was both kind of rough on the prosecutors and also defensive of her own actions. Matthew 20 Melissa, let me put the question to you this way. When you look at all of Judge Cannon's actions, are you the inquisitive, like one eyebrow

up finger to the mouth emoji or are you the angry emoji? Like, what do you think is going on here? Melissa 20.00 I mean, I think the most generous way to view this is that she is an inexperienced judge. She's a recent appointee. She doesn't have a lot of criminal experience, certainly not criminal trial experience. She had been in the U.S. Attorney's Office, but in a role that did not require her to do criminal trials. As a judge, she's only had a handful

of criminal trials, and they've been pretty anodyne fair, not this kind of high profile, more complicated case involving classified records, which is its own animal. So a generous way to look at this is that she may be out over her skis on this case. The less generous way to look at this is that she has been appointed by her defendant. And maybe the fact of that appointment shadows some of the way she looks at this. And, you know, the Chief Justice, of course, would push back on this and the idea that there are Trump judges or Obama judges or whatnot.

But I think looking at some of her rulings, there would be many who are hard pressed to say that this all looks above board. Melissa, before we shift gears and kind of do some key updates on what's happening in New York and DC, are there any other big questions you have about this documents case right now? Well, again, I think the fact that we don't have a trial date is really surprising at this point. Andrew Weissman, who is my co-author on the Trump indictments, and I have always said this documents case is the most open and shut case that the government could bring. I mean, it's just very clear what needs to be proven.

And if the allegations and the indictment are correct, the government will have very little trouble meeting its burden. The fact that we have not gotten a trial date, the fact that this isn't even starting anytime soon, and there's been so much deliberation and delay really raises eyebrows about why this very straightforward case has not been put to a jury. Why in your mind is it more open and shut than say the federal election interference case? Is it just the overwhelming evidence?

I think the evidence, if it's correct and proven before a jury as alleged in the indictments, I think it is very damning. One, the requirements here are pretty straightforward. This is about the unlawful retention of classified materials. So we know that the material was classified. We know they were retained. The only real question was, was it retained unlawfully? That is, knowing they were supposed to be returned and willfully keeping them without

regard for the law. And then you have apparently all of this evidence as alleged in the indictment that individuals, the co-defendants here, were moving the items around. I mean, that all sort of goes to the question of intent and makes it a lot easier to make out the whole issue of mental state, like whether this was done purposefully or willfully or whatnot. All right. Let's shift gears to New York to end the conversation. Reminder that the Hush Money case, the first criminal case to go to trial starts in about two weeks. We also have some loose ends from the civil fraud case and the payment and the bond.

First on the criminal case, Kerry, this week Judge Mershon, who's presiding over the case, expanded the gag order against Trump to include the judge's family. This is after Trump repeatedly attacked the judge's daughter on social media. Kerry, what can happen to Trump if he violates this gag order? Kerry Sills The judge could find him. He could even potentially jail Donald Trump, which I do not expect. And finally, the judge raised a new option this week. He said that it's possible that if Trump behaves in a way that would endanger the jury or the

integrity of the proceedings, he could bar the former president from getting access to juror names. Aaron Ross Powell And Melissa, this had been in the headlines a couple of weeks ago, but there was development this week. And I just wanted to know how you were thinking about it. This week, Trump did post that bond for the New York civil fraud judgment. When it was $454 million, there were real questions as to whether Trump would be able to do that.

A court lowered it. Trump was able to provide the $175 million bond to proceed with appeal. I mean, how typical is it for a court to lower the amount of a bond, let alone by $300 million? Well, I think it depends on the nature of the case. Here, the Intermediate Appellate Court in New York apparently thought that the fine that Judge Engeran had imposed was just too weighty and reduced it. And so, they didn't issue a written opinion with an explanation of why they were doing so.

They sort of did it, but you might read into that that they disapproved of what Judge Ungeron did. Either way, it is a sizable amount that Donald Trump had to put up, $175 million bond. And again, given the other civil judgments against him in the E. Jean Carroll case, for example, very hard, I think, to come up with that given that many of his assets are illiquid. They're assets like real estate. And so he actually did find a company to bond this for him. They stepped in. Don Hanke apparently is someone who admires President

Trump, but it is very clear he has never met him or worked with him in any other way, but he stepped up to provide this bond. And I think it does raise some questions, given that this company, spurred by this individual, has offered this bond to guarantee the president's judgment. Were promises made to Mr. Hanke? What were the nature of those promises? How much of this bond came from cash sources that are unspecified? Where are those cash sources coming from?

I think those are big questions that should be answered as this particular defendant goes forward as a presidential candidate. Right, right. The unprecedented situation of a former president in this position, I think it was magnified by the even more unprecedented situation of somebody who president in this position. I think it was magnified by the even more unprecedented situation of somebody who could be president again, getting into these financial agreements. Right. That's NYU Laws professor Melissa Murray. Thanks as always.

Thank you. Also joined by NPR justice correspondent, Kerry Johnson. Thanks, Kerry. Happy to do it. We'll be back next week with another episode of Trump's Trials. Thanks to our supporters who hear the show sponsor-free. If that is not you, still could be. You can sign up at plus.npr.org or subscribe on our show page and Apple podcasts. This show is produced by Tyler Bartleman and edited by Adam Rainey, Krishnadev Kalamar

and Steve Drummond. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Marapotti is NPR's vice president of news programming. I'm Scott Detro. Thanks for listening to Trump's Trials from NPR. Hey, there. This is Félix Contreras, one of the co-hosts of Alt Latino, the podcast from NPR Music where we discuss Latinx culture, music and heritage with the artists that create it. Listen now to the Alt Latino podcast from NPR. These days, it can feel like the news is fighting for your attention wherever you turn, but

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