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Amicus With Dahlia Lithwick | Law, justice, and the courts
Judge Aileen Cannon Closes Trump Mar-a-Lago Classified Documents Case [Preview]
00:12:47
Ruling Special Counsel Jack Smith’s appointment unconstitutional was a big swing, but could it actually revive the case?
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- [00:02]
A
Hi, this is Dalia Lithwick, host of Amicus Slate's podcast about the courts and the law and the rule of law and the Supreme Court. We are releasing a bonus episode for our plus subscribers and I wanted to share some of it with you. And well, bonus doesn't quite capture the feeling for this episode. Lawless is a lot more like it. In a shocking move, on Monday morning, Judge Aileen Cannon, who has been overseeing the Trump stolen documents prosecution in Florida, dismissed the entire criminal case against the former president president on the grounds that Jack Smith, the special counsel, was appointed unconstitutionally under the appointments clause. Matthew Seligman joined me to explain what just happened. He argued for the constitutionality of the special counsel in Judge Cannon's federal district courtroom in Fort Pierce, Florida, just last month. Matthew is a partner at Stress and Mar and a fellow at the Constitutional Law center at Stanford Law School for with a focus on election law. And here is a part of our conversation. Can we just start with the very, very basics? And would you outline for us how Jack Smith came to be appointed? What was the case he was trying to bring, what Jack Smith's role was in this case?
- [01:20]
B
Sure. So Jack Smith was appointed by Attorney General Merrick Garland and he was appointed to, to prosecute, to investigate and then potentially prosecute former President Trump and potentially others in relation to two specific incidents. The first incident is the events leading to January 6th. And the second is the potential unlawful retention of classified documents by the former president, primarily at his home, Mar a Lago in Florida. And so when the Attorney general appointed Jack Smith as special counsel, the reason to do that is because the special counsel has a certain degree of day to day independence from political oversight in the Department of Justice. So ordinarily, when crimes are prosecuted by a federal prosecutor, there are a couple different parts of the Department of Justice that might prosecute crimes, but ultimately there's a chain of command that goes up to the attorney general. And for decades there's been a recognition that sometimes that ordinary chain of command isn't appropriate, usually because there's some kind of political conflict of interest. And we've seen this for decades. There was, you know, the first famous special counsel was the special counsel. The special prosecutor was called then to prosecute the Watergate break in. And so since then, for decades there's been under various different legal authorities, there's been a practice of appointing these semi independent prosecutors. And we can talk about what that independence is. Now the reason to do that in this case is because obviously Merrick Garo, Garland Answers to President Biden. President Biden and Merrick Garland both reasonably recognize that there's a certain political conflict of interest. And so it makes sense to have someone, a prosecutor who is not overseen on a day to day basis, make the decision about whether this prosecution really should be brought or not. That's why Jack Smith was appointed outside of the usual chain of command of the Department of Justice. It's supposed to provide a degree of independence from politics. And, and now Judge Cannon has said that that appointment is unlawful.
- [03:31]
A
And I want to do one more beat on this, Matt, because this is another area where we can talk about the contours of the lawfulness of the special counsel. But like, up until Monday morning, the lay of the land was pretty well known. I mean, we understood, I think, what the rules were and that's all changed. But it would be immensely helpful if you can just sort of walk us through the last couple of decades of what, what we believed the law held with respect to this position.
- [04:03]
B
So there's a constitutional level to this question and a statutory level to this question. The constitutional level is the Appointments Clause. So the Appointments Clause says that the President of the United States shall appoint officers, except that Congress can vest the appointment of inferior officers in the head of a department. And the Attorney General is an example of a head of department. And so what this does is it gives rise to a distinction between principal officers, on the one hand, which have to be appointed by the President and confirmed by the Senate, and inferior officers, which can be appointed by a head of a department by the Attorney General, but only if Congress has passed the statute saying that the Attorney General or other head of department can appoint that inferior officer. So this means that there are two questions that got argued in this case. The first question is whether the special counsel is a principal officer or an inferior officer. And then if the special counsel is an inferior officer, can Attorney General Merrick Garland appointment Special Counsel Smith as an inferior officer? Which means has Congress passed a statute saying that Merrick Garland can appoint Jack Smith as special counsel? So there's those two levels of these questions. And no court has ever held that a special counsel or any official remotely like 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. And this question has come up. It came up first in United States v. Nixon, which is a case that the Supreme Court heard in 1974 that addressed the special prosecutor in the Watergate case. And so the special prosecutor at the time had subpoenaed the Watergate tapes that were recorded in the Oval Office. They were evidence that was relevant to the prosecution of the actual burglars in the case. And President Nixon, sitting President Nixon challenged that subpoena on the grounds of executive privilege and the separation of powers. And the Supreme Court unanimously rejected that challenge. And I'll read here a quick quote from the decision because it's pretty direct. Under the Authority of Article 2, Section 2, the Appointments Clause, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. It is also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. It cites a couple of statutes, including the ones that are at issue here, sections 515 and section 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in this case to a special prosecutor with unique authority and tenure. So the Supreme Court already addressed this issue 50 years ago, and when it did so, it was 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.
- [07:24]
A
I also want to just point out, for those of us who don't know how you got into this case, this was just a deeply strange from the jump. This has been a very strange litigation. Judge Cannon, appointed by Donald Trump in 2020, by the way, seemed to sort of do this. What I can only think of, Matt, of like, 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. And you had filed an amicus brief or what's a friend of the court brief regarding this question of the appointment of Jack Smith. So far, everything normal. And suddenly this question of Smith's appointment, as you said, this is a settled issue. But up she calls Amiki to come in and explain it. You and two other lawyers have to come in and explain and argue this to her. And that was a couple of weeks ago. And I just want you to give us a sense of how just deeply strange it is to be summoned into court to argue something that we all kind of thought was settled and certainly felt awfully orthogonal to the criminal case until suddenly it wasn't.
- [08:35]
B
So what's really, I'll say, procedurally unusual about my involvement in the case is that on June 21, not that long ago, I participated in an oral argument before Judge Cannon. And what's unusual about that is that I represented a group of amici, a very distinguished group of amici, including, for example, former special counsel Patrick Fitzgerald. But, you know, usually the way that amica's participation in cases go is you file a brief, you hope it gets read, and then the parties themselves, which in this case would be the government, and the defendants in the case, including former President Trump, would actually participate in oral argument, if there is an oral argument. The unusual aspect of this proceeding is that on her own, several months ago, in early April, after the briefs had been filed, Judge Cannon issued an order saying that if any of the Niki wanted to participate in the oral arguments, they should file a motion asking to. I thought that was a bit curious. Most district courts don't even permit amicus briefs at all. Judge Chuckin, for example, doesn't accept any amicus briefs. So I had my eye on this. And so there were two other groups of amici that had filed briefs on this issue, both supporting the former president. One is a group led by former Attorney General Edwin Meese, along with some law professors, and former Attorney General Michael McKayzy ultimately joined them as well. And the other is a law professor named Seth Barretilman, who is a very independent thinker. And so he also recently has gained a certain degree of prominence because he was the source of the argument in the disqualification case, Trump v. Anderson, that the President is not an officer of the United States. That's covered by that disqualification clause. So he's, as I said, a very independent thinker. And so I had a hunch that both of those groups were gonna ask to participate in the argument. And as the deadline approach, you know, I sort of had my eye on the docket. And, you know, the deadline for these motions to participate in the argument was on Monday. And on Friday, Attorney General Mies and his fellow amici filed a motion asking to participate in the argument. And on Monday, Professor Tillman filed his motion seeking leave to participate in the argument. And so I conferred with the amici, and, you know, it was a little bit of a puzzle for us, to be honest, because 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. So I did some research, and there is no data on amicus participation at the discord level, because, at best I can tell, I don't think it's ever happened before. But there is data about the Supreme Court. And so the Supreme Court has amicus briefs, sometimes stacks and stacks and stacks of amicus briefs in every case. But still, outside of the government itself participating in amicus, it's only happened in a single digit number of times in over 4,000 oral arguments over the last 20 years. And so in our motion we said we recognize that this is extraordinarily uncommon. You know, for example, nine of the last 4,000 oral arguments at the Supreme Court involved a non governmental amicus arguing. Nonetheless, if the other amici are participating, we think that the equitable presentation of the arguments required us to participate as well. And at that point I had a hunch that I would be traveling to Fort Pierce, Florida.
- [12:06]
A
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