Trump’s Classified Documents Case Has Been Dismissed. Now What?

CHRISTIANE AMANPOUR, INTERNATIONAL HOST:  Now, earlier this week, after the assassination attempt and as the Republican Convention got underway, the Trump appointed federal judge Aileen Cannon dismissed the classified documents case against him. Over 93 pages, she cited her doubts about the appointment of Special Counsel Jack Smith. The backlash was fast and furious, with many criticizing what they called her delay strategy. To piece together how this could impact Trump’s presidential hopes and the integrity of America’s legal system, Hari Sreenivasan spoke with Leah Litman, law school professor of the University of Michigan.

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HARI SREENIVASAN, INTERNATIONAL CORRESPONDENT: Christiane, thanks. Leah Litman, thanks so much for joining us. Just recently, there was a very consequential case where a Trump appointed judge, Aileen Cannon, dismissed the charges against him in the documents case. Tell us why this case was so important. Why the judge’s ruling was as significant as it is?

LITMAN: It’s definitely novel in that there have been special counsels appointed like Jack Smith for over a century in the United States that includes many of the special counsels that were appointed by Watergate. And so, her ruling unsettles that practice. And I think is strikingly novel in that respect, basically concluding that what we have been doing for over a century is apparently no longer good enough in her eyes. And it unsettles precedent in the process, of course, because, thus far, all of the courts who have considered the issue have concluded that special counsels are lawful, and that includes the United States Supreme Court because in United States v. Nixon, the court heard a case that involved a Watergate special counsel and the court described how that special counsel had been appointed pursuant to various federal laws that Judge Cannon all of a sudden declared don’t actually allow for special counsels at all.

SREENIVASAN: One of the interesting connections that people are making with her decision is just a few weeks ago at the Supreme Court, Clarence Thomas wrote a concurring opinion where he referenced this very idea. And here we are, just a couple of weeks later, on the day that the RNC was starting where Judge Cannon cites his very statement. Why is that more than coincidence?

LITMAN: I think Justice Thomas’s separate writing in the immunity case really was a way of encouraging Judge Cannon to pull this trigger and conclude that special counsels were not lawfully appointed. And I think he gave that position, a patina of legitimacy that it doesn’t deserve and didn’t have because, again, up until that point, no court that has considered the issue remotely thought it plausible that Congress had never, by law, authorized the appointment of special counsels. And so, he basically said, you know, come on, Aileen, and, you know, winked and nodded in that direction. And she picked up the hint.

SREENIVASAN: In this specific case, Jack Smith is going to appeal, correct?

LITMAN: Absolutely. He has already noticed an appeal and the solicitor general of the United States, the top lawyer for the United States, approved his appeal. And so, that’s going to happen.

SREENIVASAN: OK. When Jack Smith appeals, what is he likely to point out? Is he looking at a pattern of her actions? Is he looking specifically at just the clause about the constitutionality here when he essentially takes it to her bosses, so to speak?

LITMAN: So, there’s definitely a pattern here of Judge Cannon bending over backwards in order to benefit Donald Trump, occasionally in quite lawless ways that the very conservative U.S. Court of Appeals for the 11th Circuit has reversed before. But my guess is that Jack Smith will focus this particular appeal on the very narrow question, although it’s not really that narrow at all, about whether special counsels are legal. I think he has a very strong case. Again, every court, every judge that has considered the issue up until now has sided with the lawfulness of special counsels. And so, I think he is more likely to focus on the particular issue in this appeal rather than to point out Judge Cannon’s long history in this case of trying to give a leg up to Donald Trump.

SREENIVASAN: What is the threshold that must be crossed for an appellate court to say, we don’t like your behavior in this, we either — here are the steps that we can take to remedy that?

LITMAN: Yes. So, I would say there are really a few things that are on the table. One is that an appellate court might choose to what’s called reassign a case to another judge. That is, if they conclude that a judge has a pattern of showing bias or can’t be trusted in a case, then they might redirect the case to another judge. That’s very rare and an extraordinarily high bar. Is it possible in this case? Do I think it would be warranted? Yes. Am I expecting the conservative 11th Circuit to actually do that? Not really. But I also think that Judge Cannon’s behavior in this case should matter to two other audiences as well. You know, you mentioned, of course, that federal judges have life tenure. But they can also be impeached and investigated. You know, Congress can hold hearings. And there is a world in which, you know, a Democratic Senate or Democratic House actually looked into this matter and concluded that Judge Cannon has showed such this and bias and disregard for the law, that impeachment or something else might be worth considering. And the third audience, I would say, is the public at large. You know, we are at an incredibly important moment for the future of our institutions and American democracy. And I think it’s very important for people to understand the stakes of the upcoming presidential election, as far as who will be sitting on the federal courts, you know, one of the three major institutions within the federal government.

SREENIVASAN: Let’s talk about a couple of the other cases that the president has faced recently. I mean, the Supreme Court weighed in on essentially the amount of immunity that should be granted and the amount of leeway that should be granted in the acts, the official acts carried out by the president. What’s that do to the other cases that he’s facing? Let’s tackle first the election interference case in Georgia.

LITMAN: So, the Supreme Court’s immunity ruling will have, I think, the greatest effects on both the election interference case in Georgia, as well as the election interference case in D.C., in federal court. And that’s because the U.S. Supreme Court has already said that some of the bases for those prosecutions cannot actually be used to prosecute the former president. They also added that some of the other allegations in the various indictments, such as the president’s attempts to pressure the vice president to throw out lawfully cast votes, that those acts are entitled to a presumption of immunity and that the government would bear a difficult burden in order to justify being able to prosecute the former president on those grounds as well. And so, the expansive immunity that the court announced, as well as its application of that immunity to the particular election interference cases I think suggest that that ruling will have the most effect on the election interference cases, which, in many respects, are the most serious. In addition to the immunity ruling, five of the justices who were in the majority adopted an evidentiary privilege, basically saying prosecutors cannot introduce any evidence of any official acts that are themselves entitled to immunity. They cannot probe those official acts with other evidence. They cannot inquire into the motives the president had in performing those official acts, and that will eliminate some possible evidence that prosecutors in all of these cases might have used against the former president.

SREENIVASAN: Look, Donald Trump has been found guilty in a criminal procedure in New York, in the hush money trial. And Judge Juan Merchan has put the sentencing for that trial on hold. Why did he do that?

LITMAN: In part so that the prosecution and defense can engage with arguments about the extent to which the Supreme Court’s immunity ruling potentially affects that conviction as well. Donald Trump’s lawyers are arguing that some of the evidence that was introduced in that prosecution pertained to official acts and therefore rendered the entire conviction potentially invalid.

SREENIVASAN: What happens here if these cases are not ended by the election and Donald Trump wins?

LITMAN: I think there is no doubt that Donald Trump will end the federal prosecutions. He would order those charges to be dropped in the federal election interference case and the federal obstruction and wrongful retention of classified documents cases in Florida. As to the state cases, you know, I think there would then be a kind of additional constitutional question presented, which is whether you can proceed with a trial against a sitting president rather than a former president. And so, it’s possible that that issue would result in an indefinite suspension of the Georgia election interference case. It is also possible that the New York courts would conclude they can’t actually impose a sentence on someone who is the incoming or sitting president of the United States. And so, it’s very possible that the state cases are suspended. And I think it’s a certainty that Donald Trump would eliminate the federal prosecutions against him.

SREENIVASAN: Regardless of whether President Trump comes back into office, he is going to go down in history as one of the most consequential presidents, primarily because of the three Supreme Court justices that he was able to appoint. But as you point out in your articles and writing and your study of this, we forget all of the other judgeships that make up the national justice system, right? And why have those appointments been so significant and why should we be thinking about that as one of the consequences of who we elect?

LITMAN: I mean, Judge Cannon is a perfect case. You know, you previously noted how none of the cases against Donald Trump had actually proceeded to imposition of sentence. But that’s in part because of who Donald Trump appointed to both the U.S. Supreme Court and the lower federal courts. Judge Cannon and her conduct of this trial has done everything to delay the proceeding, from outright dismissing the case, which just happened, to effectively dragging it out over time. You know, remember, she tried to interfere in the special counsel’s investigation by suggesting that Donald Trump had some interest in limiting the special counsel’s ability to go through the evidence seized from Mar-a- Lago, and all of that delayed the prosecution and proceedings in what — in many respects is the most straightforward open and shut case, obstruction of justice and wrongful retention of documents. I mean, there’s literally video and audio evidence of them moving around the documents at Mar-a-Lago and the president on audio tape saying he didn’t just declassify the documents when he was president. And so, all of that came to a halt because Judge Cannon, Donald Trump’s appointee, decided she was going to drag her heels and drag this case out until after the election. And there are judges like that who are lying in wait in both the federal trial courts, like Judge Cannon, as well as on the Courts of Appeals around the country because Republicans prioritized the appointment of judges who were young, who were ideological, and who would advance the interests of the Republican Party.

SREENIVASAN: Now, Congressman Matt Gaetz is a — was a huge supporter of the president. Right after Aileen Cannon’s decision, he tweeted a photo, future Supreme Court Justice Cannon. That was the caption that he had with a photo of her. What does that say to you?

LITMAN: It is the perfect encapsulation of how the Republican Party is signaling to aspiring officials, whether in the courts or otherwise, that maybe the most important criterion is whether you are willing to sacrifice your morals, ethics, the rule of law, in order to benefit Donald Trump and the Republican Party. They are holding that out as the criteria for professional advancement, including in the federal courts, and I think that’s very scary.

SREENIVASAN: The ideology of the court or the grip that ideology has on the court has already been revealed in the last couple of years. Obviously, the overturning of Roe versus Wade was an enormous case, but there have been several other cases in both the previous sitting of the court and this session, which ones strike you as having kind of these longer-term effects that we’re not really thinking about today because it might not have as visceral a reaction as the Dobbs case and Roe v. Wade overturning was, but are still really important in how the country is run?

LITMAN: It’s really hard just to list a few. I just have to say one additional sentence about Dobbs, which of course is Dobbs unleashed the current landscape where we are now, two years after the decision, debating whether states can prohibit hospitals from offering emergency care to pregnant patients whose life and health depends on it. It is hard to get more consequential than that.

SREENIVASAN: Yes, yes.

LITMAN: I would also add a kind of trio or grouping of administrative law cases where the court has limited the authority of expert federal agencies like the Environmental Protection Agency or the Consumer Financial Protection Bureau or the Securities and Exchange Commission in order to make a variety of rules that affect our health, safety, welfare environment. And in all of those cases, the court has basically given the federal courts more power to second guess everything that agencies do. And in a world in which the courts are controlled by Republican appointed justices who are hostile to the project of regulation and who are sympathetic to corporate interests, that is going to affect people’s lives over the next decades. And probably the third one I would list is the court’s 2022 decision in Bruen, the Second Amendment case, in which the court adopted a new legal test that would determine whether firearm restrictions are constitutional. And I think that that is a significant decision that is playing out in the federal courts that we are likely to see fall out from for however many years as it remains good law.

SREENIVASAN: “The Washington Post” reported earlier this week that President Biden is considering perhaps ways to rein some of the powers of the Supreme Court, including maybe term limits or an enforceable ethics code. Are these things even constitutionally possible?

LITMAN: I think many of them are. We don’t yet have the proposal. And so, it’s a little bit difficult to analyze, you know, the precise constitutionality of different ways that the president might be thinking about the Supreme Court. You know, I do have to say term limits are probably the option that has the most constitutional questions about them, just because of what the constitution says about federal judges holding their office for good behavior. Now, I do think there is a pretty good case that Congress could alter the terms of the office of federal judges or Supreme Court justices going forward. But I very much doubt that Congress could impose term limits retroactively on justices who have already been confirmed. And so, prospective term limits are not really going to change the court we have for a pretty long while. And relative to some other options I think have more serious constitutional questions.

SREENIVASAN: What are your kind of top three suggestions if you were able to whisper into the ears of anybody that’s looking to reform the court system that might be more fair, regardless of who’s in power?

LITMAN: So, I do think term limits would be good prospectively, but I think by themselves are absolutely insufficient. And I think term limits are good because they put the public on notice that when they go to the polls next, they are picking the person who will pick a Supreme Court justice. And I think democratizing the selection process is a good thing. Another reform that I think has to be on the table is limiting the power of the federal courts in various ways. I think there are pretty targeted proposals that could limit, for example, the Supreme Court’s ability to strike down the Voting Rights Act or to strike down federal laws that authorize the appointment of special counsels to investigate wrongdoing in the executive branch. There are already a bunch of federal laws that restrict court’s power to kind of interpret and implement them. So, I think Congress would be well within its power to enact various statutes that limit court’s authority to eliminate those laws. And then, I would add to that, court expansion on all levels. I think this Supreme Court, as it exists is, a threat to American democracy and I think is likely to invalidate any kind of proposed reforms to the Supreme Court. And I think in order to democratize the court and limit its power, you have to add some number of additional justices who would allow Congress to enact those reforms.

SREENIVASAN: Professor Leah Litman of Michigan Law School and the host of the podcast “Strict Scrutiny,” thanks so much for joining us.

LITMAN: Thanks for having me.