Podcast Summary

Amicus With Dahlia Lithwick | Judge Aileen Cannon Closes Trump Mar-a-Lago Classified Documents Case [Preview]

Date: July 15, 2024
Host: Dahlia Lithwick
Guest: Matthew Seligman (Partner at Stress and Mar, Fellow at Stanford Law School Constitutional Law Center)

Episode Overview

This episode covers the stunning dismissal of the federal criminal case against former President Donald Trump regarding the retention of classified documents at Mar-a-Lago. Judge Aileen Cannon dismissed the charges, ruling that Special Counsel Jack Smith was appointed unconstitutionally. Dahlia Lithwick is joined by Matthew Seligman—who recently argued for the appointment’s constitutionality in Cannon's court—to unravel the legal earthquake, its context, and the unprecedented nature of both the ruling and courtroom process.

Key Discussion Points & Insights

1. The Appointment and Role of Jack Smith as Special Counsel

• [01:20] Matthew Seligman explains how Jack Smith was appointed by Attorney General Merrick Garland to investigate two incidents involving Trump:

  • January 6th events
  • Trump's alleged unlawful retention of classified documents at Mar-a-Lago

• The appointment aims to ensure day-to-day independence from political oversight— especially important given the conflict of interest of the Attorney General (appointed by President Biden) investigating the former president.

  "It's supposed to provide a degree of independence from politics. And, and now Judge Cannon has said that that appointment is unlawful."
  — Matthew Seligman [02:50]

2. Legal Background: The Appointments Clause & Precedent

• [03:31] Seligman outlines the constitutional (Appointments Clause) and statutory layers of the issue:

  • Presidential appointment required for “principal officers;” heads of departments (like the Attorney General) may appoint “inferior officers” if authorized by Congress.

  • The core legal questions: Is the special counsel a principal or inferior officer? Did Congress authorize the AG to make such an appointment?

  • Historical context: No court had ever ruled that a special counsel is a “principal officer” or that the AG lacked authority to appoint an inferior officer until Judge Cannon’s ruling.

  • Precedent: The Supreme Court nearly 50 years ago unanimously upheld the Attorney General’s authority to appoint a special prosecutor in United States v. Nixon, directly under similar statutes.

    "No court has ever held that a special counsel...is a principal officer. And no court has ever held until Monday morning that the special counsel is an inferior officer and the Attorney General has no statutory authority to appoint him."
    — Matthew Seligman [05:10]

    “[The Supreme Court in Nixon] simply stated that the Attorney General has the authority to appoint a special counsel pursuant to these statutes. And this week, Judge Cannon said no.”
    — Matthew Seligman [06:40]

3. Procedural Oddities and Judge Cannon’s Approach

• [07:24] Lithwick and Seligman discuss the highly unusual way Judge Cannon handled the challenge to Smith’s appointment:

  • Cannon, a Trump appointee, acted as if learning the law in real-time, calling on amici (friend of the court) lawyers to argue points most considered settled.

  • Seligman describes being summoned to court to argue an issue that until now had been viewed as resolved.

    "Judge Cannon, appointed by Donald Trump... seemed to sort of do this...do your own research judging where she's like, huh, here's an interesting question. Why don't I do a deep dive on this? Like, she's kind of teaching herself some law as she bumps along."
    — Dahlia Lithwick [07:32]

4. Unprecedented Courtroom Experience for Amici Curiae

• [08:35] Seligman recounts just how rare it was for amici to participate in oral arguments at the district court level:

  • Normally, amici submit briefs only; oral arguments are reserved for the actual parties.

  • Judge Cannon issued an order inviting amici to participate in oral arguments—a procedure basically unheard of at this level.

  • Seligman researched and confirmed that, even at the Supreme Court, non-governmental amici have argued in person less than 10 times out of 4,000+ cases over two decades.

  • Amici supporting both Trump and the Special Counsel all sought to participate in the argument. Seligman foresaw this and joined for balance.

    "As a general matter, amici don't participate in oral arguments ever. And we didn't want to give the indication that this was something that was the standard way of doing things..."
    — Matthew Seligman [09:56]

    "There is no data on amicus participation at the district court level, because... I don't think it's ever happened before."
    — Matthew Seligman [10:44]

    "Nine of the last 4,000 oral arguments at the Supreme Court involved a non-governmental amicus arguing."
    — Matthew Seligman [11:22]

Notable Quotes

• Dahlia Lithwick on the vibe of Cannon’s decision:

  “Bonus doesn't quite capture the feeling for this episode. Lawless is a lot more like it.” [00:14]

• Matthew Seligman summarizing the shock:

  “And this week, Judge Cannon said no.” [06:40]

• Lithwick on the broader significance:

  “...helping us navigate these very choppy waters, both for journalism and for democracy.” [11:49]

Timestamps for Key Segments

• [00:01] — Introduction, setting the stakes
• [01:20] — Explaining Jack Smith’s appointment and purpose
• [03:31] — The constitutional and statutory underpinnings; Supreme Court precedent
• [07:24] — The idiosyncratic conduct of Judge Cannon
• [08:35] — Seligman’s unique involvement and amici oral arguments
• [11:22] — The rarity of amici arguments, even at the Supreme Court

Episode Takeaways

• Judge Cannon's dismissal of the case on constitutional grounds is a radical break with longstanding practice and precedent.
• The courtroom process itself was dramatically atypical, with amici playing a live oral role hardly ever seen in federal courts.
• The episode frames this as legally shocking and of major consequence to the rule of law—leaving the future of special counsels, and the Trump case, highly uncertain.

This summary covers the main content and conversations, omitting advertisement and subscription-related segments. For a deeper dive, consider listening to the full episode on Slate.