The Daily - The Surprise Ending to the Mar-a-Lago Documents Case

Episode Date: July 17, 2024

As the Republican National Convention entered its second day, former President Donald J. Trump and his allies absorbed the stunning new reality that the most formidable legal case against him had been thrown out by a federal judge, who ruled that the appointment of the special counsel who brought the case, Jack Smith, had violated the Constitution. Alan Feuer, who has been covering the classified documents case for The Times, explains what it means that the case could now be dead.Guest: Alan Feuer, a reporter covering extremism and political violence for The New York Times.Background reading: Judge Aileen Cannon dismissed the classified documents case against Mr. Trump.The effort to hold Mr. Trump to account has already yielded a Supreme Court decision giving former presidents broad immunity. Now another case could make prosecuting political figures more complicated.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. As the Republican National Convention entered its second day, Donald Trump and his allies absorbed the stunning new reality that the most formidable legal case against him had been thrown out by a federal judge. Today, my colleague Alan Foyer on what it means that the classified documents case may now be dead. It's Wednesday, July 17th. So, Alan, it's been a pretty relentless week of news about Donald Trump, an assassination attempt, him announcing his vice presidential pick at the start of the Republican National Convention in Milwaukee on Monday night. And amidst all of that, we got the news that really in any other week would have been the only thing anyone was talking about. And that is what appears to be a major legal victory for Trump. The judge in the classified documents case throughout the case.

Remind us about this case. Sure. This is the case against Trump in which he stands accused of taking a trove of highly classified documents from the White House after he's left office down to his new post-presidential home in Mar-a-Lago, his club in Florida. And not only has he been accused of taking this stuff, these state secrets that really no longer belong to him because he's no longer president, he then has been charged with willfully obstructing the government's repeated efforts over the course of months to get these

documents back, right? And the one investigative step in this case that everyone will surely remember is when the FBI executed a search warrant at Mar-a-Lago two summers ago, and they hauled away 45 boxes of stuff and found more than 100 classified documents in those boxes. Right. The boxes stacked in the bathroom, the classified documents all over the house in Mar-a-Lago. And if I remember correctly, this was the most straightforward of all of the Trump cases, right? This was the one that was the most clear cut against him. Yeah, the charges were relatively simple. And, you know, the evidence against him was very strong evidence for the government. Nonetheless, Trump's lawyers filed

a barrage of motions attacking the validity of the charges. And these motions fell to the judge who was handling the case. Her name is Eileen Cannon. And as you may recall, she herself was appointed by Trump in his final year in office. And she was assigned to this case really when she only had about three years of experience on the bench and had extremely limited experience in handling criminal trials in particular. And so, you know, she had to sort of deal with this flurry of motions that Trump's lawyers filed, and she gave a quite serious hearing to all of them. And in the end, lo and behold, one of those motions to dismiss the case finally worked.

So what sticks? What argument actually succeeded? It had to do with the way in which Jack Smith, the special counsel who filed the indictment against Trump, got his job, how he was appointed to his post. And what Judge Cannon ultimately ruled was that Jack Smith, the way in which he

was appointed as special counsel, violated the Constitution. Okay, so let's unpack that a little bit. How are special counsels typically appointed? I mean, how does it actually work? So a special counsel is simply a prosecutor with some level of independence from the Justice Department who is brought in to handle very sensitive political investigations. They've had different names over time, and they've also been appointed differently at different points in our

history. So, for example, in the wake of Watergate, Congress passed a law called the Independent Counsel Act. And that gave prosecutors, special prosecutors, a great deal of leeway and latitude and freedom for how they wanted to conduct their investigations. Because we just had this massive political scandal and the thought was, we need to give prosecutors who are looking at official corruption a lot of independence. You want them not to be under the thumb of the political leaders they're supposed to be actually investigating. Precisely.

So that way of doing business lasted really from 1978 to 1999. And in 1999, there was a sea change in how special prosecutors got their jobs. This happened in the wake of another political scandal, the Whitewater affair, if you remember, that was the event that kind of consumed the Clinton White House. You know, it was an investigation by the special prosecutor Ken Starr. It started as this real estate deal and it eventually metastasized, of course, into a full-blown presidential sex scandal. scandal. And it was at that point that there was kind of a consensus in Washington that special prosecutors maybe had too much power. And the idea was, let's move the framework and bring special prosecutors inside the Justice Department so that there was a little more accountability. And what happened was the Independent Counsel Act

was allowed to expire. And in place of that law that was passed by Congress, special prosecutors were given their jobs by internal Justice Department regulations. And so you move from a law governing the way special counsels were appointed and operated to internal Justice Department regulations doing that job. They wanted to strike a balance between giving special prosecutors enough independence that they could successfully resist pressure from the outside on their work, but not so much independence

that they might run amok and abuse their powers. And there was, you know, lists and lists and lists of rules and regulations about how they could operate. They didn't have to report on their day-to-day activities to the attorney general. The attorney general had the right to fire them for good cause, right? They had to obey all the Justice Department rules. And so there was an attempt to put the attorney general on the hook for what the special counsel was doing, but still give the special counsel enough leeway not to feel pressure from essentially their bosses. So in a way, it was a kind of Goldilocks solution, right? The

prosecutor should have some independence, but not so much that they have no accountability. Yes, that's right. It was absolutely independence versus accountability, a balancing act. Absolutely. Independence versus accountability, a balancing act. So then how did Cannon's ruling change all of this? So Judge Cannon took a wrecking ball to this way of doing business by saying that Justice Department regulations alone aren't enough under the Constitution to appoint or govern a special counsel. There has to be an actual law passed by Congress, as in the old post-Watergate days, or a special counsel has to get their job just like any other high-ranking, say, cabinet official. They have to be nominated by the president and confirmed by the Senate.

And so she said, neither of those options, A or B, apply to Jack Smith. And so this just flew in the face of 25 years of sort of practice, procedural practice, of how the Justice Department operates. And it flew in the face of

many, many court decisions reaching back to Watergate that have upheld the legality of this mode of doing business. And what do we know about why Judge Cannon would make this pretty expansive ruling? I mean, given the fact that it departs from years of precedent about how special prosecutors have been appointed. Look, there's no way of knowing what Judge Cannon was thinking. The reasons behind judicial decision-making is basically opaque. That said, there have been a couple of clues along the way. Hannon decided last month to hold two days of hearings on this very subject, which was itself a bit unusual because there was so much court precedent already in place that she didn't really have to hold a hearing. She could have just read the other cases. There's plenty of information

out there and made her decision. That's not what she did. And so it really seemed to be a signal that she was taking this issue very seriously. And, you know, there was another interesting development shortly after she held those hearings. Okay. And that was, you'll recall that the Supreme Court granted Trump a broad version of immunity from criminal prosecution. The blockbuster case in this most recent term. Correct.

So as part of that opinion, Clarence Thomas issued a very unusual concurrence. And in this concurrence, he essentially went out of his way to express doubts about Jack Smith's appointment, even though that issue had no relevance to the larger question that the court was deciding on immunity. The lawyers in that case never raised the question of Jack Smith's appointment at all. He just sort of took a tangent and wrote a nine-page opinion that sounded a lot like what Judge Cannon ultimately ended up writing. And so it was kind of widely read as some sort of invitation to Judge Cannon, some sort of encouragement to Judge Cannon because her opinion cited Justice Thomas' brief concurrence several times.

And the legal reasoning was very close to the reasoning that Thomas offered for why Jack's misappointment was unconstitutional. And look, there has been a separate but related conversation about Judge Cannon from the moment that she was assigned the classified documents case, which is, you know, she has made so many unusual decisions, decisions that are sort of outside the norm along the way, that legal scholars who have been watching this case have been trying to figure out,

does she have some sort of bias in favor of Trump, right? And honestly, this most recent decision has just sort of increased the volume and intensity of that conversation because the ruling not only dismissed in their entirety the charges that Trump was facing in this case, the decision was handed down at a hugely consequential political moment for Trump, which was, of course, on the first day of the Republican National Convention, where he was going to be formally nominated as the Republicans'

presidential nominee. Judge Cannon handed Trump a huge legal victory at a giant political moment. a giant political moment. And it's raised all kinds of questions, not only about this case in particular, but about what all cases involving special prosecutors might look like moving forward. We'll be right back.

Okay, so Alan, you just said that there are implications for this case and for future cases, but let's start with this case. What happens next? Jack Smith has promised to appeal Judge Cannon's decision. And so what he will do is he will take the case up to the appeals court that sits over her, which is the 11th Circuit Court of Appeals in Atlanta. In theory, it's also possible that Jack Smith could try to get Judge Cannon removed from the case. That would also involve the 11th Circuit. But the point is, regardless of what the 11th Circuit. But the point is, regardless of what the 11th Circuit ends up doing on any of these issues, all of this is very likely to end up

at the Supreme Court in front of Justice Thomas and his colleagues. And that will be the moment we'll get a much clearer picture of the future of special counsels. But in the meantime, it sounds like the case is dead. The case against Trump is dead. There is no case against Trump anymore. And Alan, does this affect the other Jack Smith case? You know, the one about Trump's involvement in January 6th, because it calls into question, of course, Jack Smith's ability to bring any case. It certainly could eventually. Trump's lawyers in that case have not raised this issue about Jack Smith's appointment. They might do so.

Don't forget, that case has been on hold for seven months while the courts up to the Supreme Court were deciding the immunity issue. And it's about to become unfrozen in the next few weeks. So there will be a flurry of activity in that case. And one of the things that might happen is the lawyers in the Washington case, the January 6th case, could say, hey, if Jack Smith has been found to be invalid in the case in Florida, why not here too?

In the meantime, we're starting to see the first signs that Judge Cannon's ruling is being used by defense lawyers in other cases involving other special counsels trying to use it to their advantage. So, for example, hours after Judge Cannon's decision came down, lawyers out in Las Vegas in a totally separate special counsel case said, hey, our special counsel should be invalidated too because look what Judge Cannon said. Wow. You know, now there aren't a ton of cases across the country that involve special counsels.

There are some. There's another case that involves Hunter Biden. It's out in California. It's a tax case. And the lawyers in that case have already tried to claim that the special counsel, David Weiss in that instance, was invalidly appointed. Who knows? Will they use Judge Cannon's ruling to seek to reopen

that question? Maybe. Remains to be seen. So there are some trickle-down effects here already. Yeah, I mean, small as they may be, yes. And all of this is just sort of percolating right now until, as we discussed, it sort of makes its way up the food chain to the Supreme Court, which will really, should it be so inclined, make some changes. Okay, so say this case were to stand. What would that mean for that balance you were talking about before in terms of, you know, prosecutors and their independence. Independence on the one hand versus accountability to public officials on the other. Clearly, Judge Cannon has come down on the side that special prosecutors need to be more constrained, that there aren't enough regulations

on them. So on the spectrum of independence and accountability, she wants much more accountability and much less independence. And that issue, once it gets played out through the courts, could have important ramifications in a world in which Donald Trump retakes the White House and carries through on his promises to weaponize the Justice Department against his enemies. Who will be there should special counsels be stripped of the independence that they have traditionally have to investigate the kinds of abuses of prosecutorial power that Trump is contemplating, that Trump has promised to do. And so at the moment that this country might most need to look to independent prosecutors to hold powerful political figures accountable, it's conceivable that their powers of independence might be constrained.

So in the longer term, this ruling really could have some pretty far-reaching consequences. I mean, depending on how it moves through the courts and on what happens in November. And in the immediate term, I have to imagine that the political implications are going to be pretty profound too. Yes, that's right. Judge Kennedy's decision didn't only just get rid of this case for Trump. What it really did is it bolstered a narrative that he has been pushing from the very beginning of all of these cases, which is that they were lawless, brought by a prosecutor who shouldn't have been there in the first place and that they were unconstitutional. And Trump can now point to a ruling by a federal judge that essentially says, this guy, Jack Smith, who has brought these two federal cases against me,

got his job improperly and should never have been in place to begin with. improperly and should never have been in place to begin with. So what Judge Cannon has done is hand Trump a political cudgel at this extraordinary moment in his presidential campaign, right as he's getting the nomination. And that allows him to kind of push back against one of the central arguments that the Biden campaign has made against him, which is that he is a convicted felon with four criminal cases brought against him. And, you know, Trump now gets to point to a federal judge's ruling that ratifies his own narrative. ruling that ratifies his own narrative. So whether she meant to or not,

what Judge Cannon has essentially given Trump is a way to say, hey, you don't have to believe me, believe her. The witch hunt is real. Alan, thank you. You're welcome. We'll be right back. Here's what else you should know today. A jury in New York found Senator Robert Menendez, a Democrat of New Jersey, guilty on all counts in a sweeping scheme to sell his office to foreign powers and corrupt businessmen in

exchange for hundreds of thousands of dollars in cash, a luxury car, and bars of gold. I have never been anything but a patriot of my country and for my country. I have never, ever been a foreign agent. Speaking after the verdict, Menendez remained defiant and vowed to appeal. Menendez is the first U.S. senator to be convicted of acting as a foreign agent. He now faces potentially decades in prison. Meanwhile, in Washington, Senate Majority Leader Chuck Schumer called on Menendez, whose term expires at the end of the year, to resign immediately. New Jersey's Democratic governor, Phil Murphy, said that if Menendez

stepped down, he would make a temporary appointment to fill the seat. Today's episode was produced by Nina Feldman, Will Reed, and Aastha Chaturvedi. It was edited by Mark George with help from Paige Cowett. Contains original music by Rowan Nemisto, Dan Powell, Alicia Baitu, and Diane Wong. And was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi.

See you tomorrow.