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

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 threw out the case.

Remind us about this case.

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.

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.

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.

What argument actually succeeded?

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.

How are special counsels typically appointed?

I mean, how does it actually work?

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.

be actually investigating.

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.

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.

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 be fired.

Not to feel pressure from essentially their bosses.

The prosecutor should have some independence, but not so much that they have no

accountability. Yes, that's right.

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.

I mean, given the fact that it departs from years of precedent about how special

prosecutors have been appointed.

The reasons behind judicial decision making is basically opaque.

That said, there have been a couple of clues along the way.

So Judge Cannon 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. And that was, you'll recall that the Supreme Court granted Trump a broad

version of immunity from criminal prosecution.

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's misappointment 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's

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

Republican's presidential nominee.

Judge Cannon handed Trump a huge legal victory at 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.

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cases, but let's start with this case.

What happens next?

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 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.

There is no case against Trump anymore.

involvement in January 6th, because it calls into question, of course, Jack Smith's ability

to bring any case.

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.

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.

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.

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?

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.

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.

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.

So what Judge Kannon 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.

So whether she meant to or not, what Judge Kannon has essentially given Trump is a way

to say, hey, you don't have to believe me.

Believe her.

The witch hunt is real.

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, ever been a foreign agent.

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 Chattervedi.

It was edited by Mark George, with help from Paige Cowett.

Contains original music by Rowan Nemisto, Dan Powell, Alicia Beatube, 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.