Trump's Trials - Trump's classified documents case is dismissed - what happens next?

Episode Date: July 20, 2024

For this episode of Trump's Trials, host Scott Detrow speaks with Constitutional expert Kim Wehle.Federal Judge Aileen Cannon dismissed former President Donald Trump's classified documents case on Monday. Cannon ruled the appointment of Jack Smith to special counsel was unconstitutional and therefore the indictment should be dismissed. Trump faced 40 felony counts for allegedly taking classified material and obstructing the government's efforts to retrieve them. Special Counsel Jack Smith has already filed an appeal — and this could very likely make its way to the Supreme Court. Follow 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

It's Trump's Trials from NPR. I'm Scott Detro. This is a persecution. He actually just stormed out of the courtroom. Innocent to proven guilty in a court of law. On Thursday night, former President Donald Trump accepted the Republican presidential nomination for the third time in a row. The moment came days after Trump narrowly escaped an assassination attempt. And amid all of that, Trump still took time in his convention speech to take a victory

lap on another big win. On Monday, a major ruling was handed down from a highly respected federal judge in Florida, Eileen Cannon, finding that the prosecutor and the fake documents case against me were totally unconstitutional and the entire case was thrown out of court. The day the convention began, federal judge Eileen Cannon, a Trump appointee, threw out the federal criminal case centered around classified documents Trump allegedly took with him after he left the White House and refused to return to the government.

It was the latest in a string of remarkable legal victories for Trump in the criminal cases he's faced, cases Trump has tried to paint as illegitimate and politically motivated. The Democrat party should immediately stop weaponizing the justice system and labeling their political opponent as an enemy of democracy. Trump is facing charges stemming from alleged actions taken before, during, and after his presidency. And though he was convicted in a New York courtroom this spring, it's increasingly likely he will not face a trial on any of these other cases.

Because now the case viewed as the one with the most serious evidence against him has been dismissed, and the other two remaining cases are in a deep freeze as judges and prosecutors examine what the wide immunity granted to Trump by the Supreme Court earlier this month means for those charges. So as always, there is a lot to examine. Ahead, we'll take a close look at Cannon's ruling and its implications with one of our go-to experts, Kim Whaley. Support for this podcast and the following message come from Wwise, the app that makes managing your money in different currencies easy.

With Wwise, you can send and spend money internationally at the mid-market exchange rate. No guesswork and no hidden fees. Learn more about how Wyze could work for you at Wyze.com. Black perspectives haven't always been centered in the telling of America's story. Now we're taking center stage. Introducing NPR's Black Stories, Black Truths, a collection of black-led stories from NPR's podcasts. Search NPR Black Stories, Black Truths wherever you get your podcasts. In this country, some truths aren't self-evident. In NPR's Black Stories, Black Truths, a collection of stories is

wide ranging and real, is the people who tell them we celebrate the black experience for all its soul and richness. Search NPR Black Stories, Black Truths, wherever you get podcasts. We are back with constitutional law expert and author of the upcoming book, Pardon Power, Kim Whaley. Kim, always good to talk to you. Thanks for being here. Adam S We are back with constitutional law expert and author of the upcoming book Pardon Power, Kim Whaley. Kim, always good to talk to you. Thanks for being here. Kim Whaley Great to be here with you. Adam S Before we get your response to it and the analysis of it, can you start by telling us

the best explanation of Judge Cannon's reasoning for throwing out this case. What she says is that special counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland, that Congress has to make that appointment or empower Merrick Garland to make that appointment, and that the basic default statutes that have been in place for decades allowing the attorney general to hire and fire prosecutors don't apply here. Nat. Jensen We have spent just about a year analyzing, asking critical questions about the way that Judge Cannon has handled this case, her decisions, her lack of decisions.

Were you surprised on Monday to see this ruling? Julie Snell Not really, although it probably fell on the heels of the immunity ruling that is Justice Clarence Thomas filed a really gratuitous concurring opinion in the majority decision granting Donald Trump and future presidents criminal immunity that is a free pass if they commit crimes using official power. And that really teed up this basis for throwing the entire case out. But given, you know, a very unusual track record for a federal judge in a case that should be fairly straightforward, the exception of the classified information management part

of it, it wasn't surprising. And before we get into what could happen next year, you know, because I think there's a lot of different scenarios, depending on how the election goes and other factors. I want to talk about how you view this growing conservative movement that special councils themselves are unconstitutional. What do you make of that? My viewpoint is given the immunity decision, specials might be irrelevant, regardless of whether they're constitutional or not. The whole point behind what are now called special counsels, but in Watergate, they were

called special prosecutors. In the Ken Starr era, I worked with Ken Starr in the Whitewater investigation, they were called independent counsels. The whole point of all of these iterations is to insulate prosecutors from the political influence of a president. The idea being we want prosecutors with independence to protect the subject of an investigation and prosecution from political persecution. And in the Supreme Court's immunity decision, the majority went out of its way to say communications with DOJ, even if that results in a crime, are now absolutely immune from any legal scrutiny.

So in a way, the Supreme Court said vindictive prosecutions are within the scope of the president's authority. So we'll have to see what future presidents do with this newly minted mass of power. There might be future presidents who say, listen, I like the old way. I want to be independent. I want to engender trust in the public in the way the Justice Department operates. I don't want it to be either perceived or in actuality become an arm of vengeance. But other presidents might say, listen, the Supreme Court said this is my constitutional right now and there really isn't any oversight.

So I'm not going to bother with the special counsel. This is a new day when it comes to the DOJ. Nat. So much has happened the last few weeks that the immunity ruling itself might not be top of mind for a lot of listeners. I just want to clearly walk through this. Donald Trump has said in his many words, I will tell the Department of Justice to stop these investigations into me and I will target my political opponents with the Department of Justice and the Supreme Court as you understood it basically said, yeah, that's fine. A president can do that.

Correct. That is what the Supreme Court effectively said and said the real problem for democracy are out of control rogue prosecutors that abuse their power without even really seriously addressing the concern of rogue presidents abusing their power. When the framers of the constitution understood that ambition needs to be made to counteract ambition, I'm quoting James Madison, that we need checks on presidential power because abuses there are the really most serious ones of all. Matthew 20 But I think, you know, one of the things we talked about with the classified documents case is that the evidence was so seemingly clear cut that it was a pretty damning indictment of alleged

allegations in terms of the evidence that was laid out. The bulk of this seemed to be actions that an ex-president took. Did you think this was something that was affected by the immunity ruling itself before we get into to Justice Thomas's concurrence? Yes, I do think to a lesser extent than the January 6 case. So for two reasons. Number one, the majority was very clear on carving out sacred spaces of official power that are completely immune. They went through detailed points, including talking to your attorney general, but did

not find anything in January 6 or anything in the scope of a president's activity that it felt comfortable carving out as clearly unofficial. So the court left up to itself in a future case the discretion to tell everyone else what is unofficial. In the Mar-a-Lago case, Donald Trump directed that boxes be packed up in Washington, D. Washington DC and has taken the position under the Presidential Records Act I think wrongly that it was his exclusive prerogative to take classified information so we could be in a scenario where Jack Smith or a future prosecutor if if Attorney General get Merrick Allen or someone else just said I'm just going to use a line prosecutor regular prosecutor forget about the special

on or someone else just said I'm just going to use a line prosecutor, a regular prosecutor, forget about the special counsel provisions, they would have to make a case just based on what happened in Florida. The alleged obstruction by hiding the materials, directing people to do stuff with videotapes, refusing the FBI's request for them, making misstatements and official representations about having turned the documents back over. So I do think a lot of that would be probably unofficial acts, but the court didn't tell us what would be unofficial. So all of that, there's a big question mark looming over it.

Nat. Do you think it is fair to connect a dot between this concurring opinion that Thomas puts out with the immunity ruling saying, and by the way, I think special counsels are unconstitutional. And then Judge Cannon saying, special counsels are unconstitutional. Dr. Patrick Larson I do because Thomas didn't have to make that point. That wasn't what the case was actually about. And in fact, at oral argument in the immunity case, you know, Justice Gorsuch went on his way to say, we're not writing an immunity law for the January 6 case, we're writing it for all future cases, which was, I think, probably outside the scope of what they should have been doing.

But meaning, you know, it really didn't flow naturally from the immunity ruling to make a comment about Jack Smith. That's kind of a different topic. And the reporting of when Judge Cannon heard this argument in her courtroom, among many others that Donald Trump's legal team raised, she didn't seem at least particularly sympathetic to the argument. And probably because the law and the history supporting these kinds of independent lawyers in the Justice Department is so robust. In the Nixon case, the Supreme Court effectively said that the special prosecutor there

that didn't have some fancy tailored congressional statute did have the authority to investigate Richard Nixon. So it's against that precedent, 9-0 Supreme Court ruling, that she stretched her neck out here to throw away, as you indicate, you know, a very serious case. And I just to say, what's serious about it is to this day we don't know what happened to the classified information that was missing or whether anyone saw it by mistake in wandering around Mar-a-Lago. I mean, there are deep national security issues that affect every member of the American public that we don't have answers to and now we might never have answers to.

And just as a reminder for people that these documents were characterized by prosecutors as containing military information, as containing information tied to the nuclear program, like pretty serious stuff. So let's say Trump loses this election and does not come back into power and immediately dismiss this case. Do you see any world where this case goes to trial, given the string of rulings coming from the Supreme Court this year on presidential immunity, on dismissing the attempts to remove Trump from the ballots on the official Ax case that also ties to January 6th, given

the three different cases that we have rulings on tied in one way or another to Donald Trump and his legal problems. Do you see any world where the Supreme Court lets this case go forward? Well, pieces of it. It's hard to say. I don't think it's hyperbole to read what the court has done as biased in favor of Donald Trump in particular. It's pretty stunning. This cascade of rulings and the immunity case effectively rewrote the constitution

itself, turned it into a system of government where each branch is checked to one where the presidency is not checked when the president's using official power, the stuff we really need to worry about, not the unofficial stuff. That being said, a prosecutor could move forward, an attorney general could decide to move forward on whatever pieces are left. It will take a lot longer because the question of official versus unofficial, say in the Mar-a-Lago case, will have to go up through the courts of appeals into the United States Supreme Court.

But, you know, it did create this unofficial category and you know mental gymnastics notwithstanding it might be in a spot where they have to green light some evidence going before a jury but at the end of the day there are elements that have to be satisfied for every crime and the Supreme Court also held that when it comes to anything official you cannot use the evidence relating to official acts in the case. You cannot look into motive behind why the president did what he allegedly did. So it really does knock a lot of stuff off the table that is necessary as a building blocks of a criminal case.

So we're in a new world. Even if there was an appetite to move forward, the prosecutors would have to make sure they have the evidence to convict beyond a reasonable doubt. That would be months, if not well over a year, even in a democratic administration. And as you indicate, the court has left itself the power to second guess whatever makes its way to the Supreme Court. How are you personally feeling about the rule of law in this country after the last month or so? You know, I've been teaching constitutional law for many years now and, you know, despondent

is probably the word I would say. I mean, I don't know how to teach students anymore because the foundations of legal education, the idea that the constitution is the top law of the land, the idea that judges have constrained powers, that they adhere to precedent, that they respect the will of Congress, all of those things. It's really difficult now to square the circle and to avoid this real looming question,

is this a corrupt court? Is this a biased court? Students are logical, they understand this. And I think the response is, okay, what do we do about this? I mean, the court is rolling back, not just empowering presidents, rolling back foundational rights, rewriting major parts of the Constitution,

and leaving itself as the final arbiters of all the law, of regulatory law, of regulatory law, of presidential powers, of what Congress can and cannot do. And none of these folks are accountable at the ballot box. So... Adam Skelter And I'm gonna remind people listening that you're saying all this as somebody with a conservative legal background. Dr. Julie Kastner Yeah, I mean, as you indicated, I worked in the Whitewater investigation. That was an investigation of Bill Clinton. But yeah, I grew up professionally with this deep, deep belief in the integrity of the

judicial system. And it's painful to see it go by the wayside as it seems to be doing right now. That is Kim Whaley, who we regularly talk to on this podcast, law professor at the University of Baltimore and the author of the upcoming book, Part and Power. Kim, thank you so much. Kim Burtleman Thank you for having me. Scott Dettro This show was produced by Tyler Bartlem, edited by Tinbeat Ermias and Krishnadev Kalamur. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripodi is NPR's vice president of news programming.

I'm Scott Dettro. Thanks for listening to Trump's Trials from NPR. This is my voice. It can tell you a lot about me. And I'm not changing it for anyone. In NPR's Black Stories, Black Truths, you'll find a collection of NPR episodes centered on the Black experience. Search NPR Black Stories, Black Truths wherever you get podcasts. It's a high stakes election year, so it's not enough to just follow along. You need

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