In July, U.S. District Judge Aileen Cannon dismissed a criminal case charging former President Donald Trump with hoarding classified documents at his home in Mar-a-Lago and obstructing justice. Judge Cannon reasoned that the prosecutor in this case, Special Counsel Jack Smith, was not properly appointed by the Justice Department. Matthew Seligman of Stanford Law School and Josh Blackman of the South Texas College of Law Houston, who argued before Judge Cannon on opposite sides of this issue, join Jeffrey Rosen to debate the legal basis for the special counsel role.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Matthew Seligman is a partner at Stris & Maher and legal scholar and non-resident fellow at the Stanford Constitutional Law Center, whose academic research focuses on election law, with a particular emphasis on disputed presidential elections. His broader research interests span constitutional law, federal courts, contracts, and private law theory.
Josh Blackman is a professor of law and Centennial Chair of Constitutional Law at South Texas College of Law Houston, and adjunct scholar at the Cato Institute, and president and co-founder of the Harlan Institute. His work has been quoted during two presidential impeachment trials, he has testified before Congress and advises federal and state lawmakers.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- United States v. Nixon
- Trump v. United States
- Josh Blackman and Seth Barrett Tillman, Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump (July 29, 2024)
- Matthew Seligman, Motion for Leave to File Brief by Constitutional Lawyers, Former Government Officials, and State Democracy Defenders Action as Amici Curiae in Opposition to Defendant Donald J. Trump’s Motion to Dismiss, United States v. Trump (April 3, 2024)
- Judge Aileen Cannon, Order Granting Motion to Dismiss Superseding Indictment Based on Appointments Clause Violation, United States v. Trump (July 15, 2024)
- Jack Smith, Brief for the United States, United States v. Trump, Eleventh Circuit Court of Appeals (August 26, 2024)
Excerpt from Interview: Matthew Seligman argues that Trump's case could continue under a different prosecutor even if the special counsel's appointment is ruled unconstitutional.
Matthew Seligman: : I think there are two ways to think about the collection, the array of decisions that you're talking about that are broadly skeptical of the prosecution of a former president here. One is that there is a potentially ideologically or politically motivated perspective that's driving a variety of different cases. Another is that these issues simply haven't been presented before because this is the first time we've had a former president who's been prosecuted. So, you know, different people are gonna read these trends in different ways.
I think it is certainly the case that the immunity decision would render the prosecution of Richard Nixon unlawful and the reason is because you know the conduct that Nixon would have been prosecuted for he resigned and was ultimately pardoned by President Ford and so this never came to pass question was never presented. But everybody at the time assumed that Richard Nixon was going to be prosecuted and the thing that he would have been prosecuted for is using the levers of government for his own political criminal political purposes including using the department of justice the FBI the CIA those are exactly the types of Presidential official actions that are core executive functions according to the supreme court for which, a president is absolutely immune So I think there's no question that the Nixon prosecution had the hypothetical Nixon prosecution would have been completely blocked So maybe Richard Nixon, shouldn't have resigned after all.
Now another important caveat to what we're talking about here, though in the appointments clause issue is that The Mar-a-Lago classified documents case does not go away if Donald Trump wins on this issue in the supreme court and the reason is because it doesn't go to the Legal or factual soundness of the prosecution goes to this procedural question about the constitutionality of the special counsel's appointment. So let's say it turns out that the supreme court says no special counsel Smith. You never really had a job. You were unconstitutionally appointed. Indictment dismissed. Okay, he can be re-indicted by the US Attorney for the southern district of Florida the very same day, And this case goes ahead and there's absolutely no question of the lawfulness at the appointments of the US attorney for the southern district of Florida who was appointed by the president with the advice and consent of the senate. So This is a procedural issue that even if former president Trump wins It does not make this case go away.
And I think that's an important context for something that Josh brought up before. You know, these constitutional issues are supposed to be decided in a political vacuum. It's difficult to really completely isolate the issues from the context here and that context is that holding aside whatever you think about the January 6th case, which does deal with novel factual circumstances and therefore novel applications of federal criminal statutes. The classified documents case is really a run-of-the-mill Classified documents case. It happens many times a year where people are sent to jail for decades. And there's absolutely nothing that has happened in Judge Cannon's courtroom including in this decision that casts any doubt about the ultimate soundness of this prosecution, which means that the stakes of the election for the former president are whether he will face trial or not for unlawfully retaining national security secrets.
Excerpt from Interview: Josh Blackman discusses legal precedents on special counsel appointments and speculates on how court rulings and election outcomes might affect Trump’s legal cases.
Josh Blackman: So it's often said that the DC Circuit is the second highest court in the land, and perhaps that's true. But they've also developed their own body of case law over the decades. And I think there are a number of decisions from the 1980s and 1990s where the court basically looked at United States v. Nixon and presumed that this decision authorized this idea of these outside people being appointed to these special counsel positions. And as an original matter, I think those cases are probably wrong, for the reasons I mentioned. I think they misread Nixon. But those precedents built up over the years. So it's unsurprising when all the district courts in DC reach the same conclusion. They were found by the same DC Circuit precedent. We're now in Florida. We are next to the Atlantic and North Potomac.
And I think there's a different set of precedent that applies. I think Judge Cannon's decision, I don't agree with it in all regards, but I think it at least advances a plausible reading of Nixon. I think there are other readings you can adopt as well. And then once you get over the hump of what Nixon controls, I think there's some very difficult statutory questions. And again, lurking in the background is a case we haven't mentioned yet, maybe in passing, is Morrison against Olson. This was this landmark case, a seven to one decision by the court, holding the independent counsel statute. Justice Scalia wrote, I think one of his most important dissents ever, where he said, this wolf comes with a wolf. This is unconstitutional. I'd wager there are five votes over Morrison, maybe six votes. I don't know. So when you're asking how many votes did Justice Thomas get, perhaps as a stopgap of overruling Morrison, they go with this sort of narrow statutory question. And the court always likes to say, "Oh, we're not gonna do constitutional. We're doing narrow statutory." This is a major question. I don't know. Make something up, right? So who can predict? But the question, of course, is the election. We don't talk about elections, but we do in this context.
If Trump wins, the AG fires Jack Smith on day one. The prosecution vanishes. Maybe Trump pardons himself. I don't know. And we don't have to decide this. If Trump loses, then Jack Smith goes full steam ahead with the trial. In fact, Smith might have a trial in December fully now. He could have it this year if Judge Chutkan moves fast enough. Then this case will go to the Supreme Court, and at that point, Trump is no longer a vital political candidate. And maybe the court said, all right, whatever, right? If we rule in favor of Trump, what's going to happen? We'll be like Bowsher before. So, I don't know. I'm very bad at predictions, usually wrong. But lots of stuff can happen in this case.
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