David Sklansky: She ordered a special master appointed to review all the materials that the government had seized in its search of Mar-a-Lago to make sure that none of those materials were attorney-client privileged, and that none of those and that all of those materials were materials that the government had a right to seize, which the 11th Circuit unanimously in a per curiam decision, reversed, saying, That’s crazy! We don’t do that! That’s not how criminal procedure works in this country. 

Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Rich Ford with Pam Karlan.

Please subscribe or follow this feed on your favorite podcast app, and that way, you’ll have access to all of our new episodes as soon as they’re available. Today, we’re talking with David Sklansky, our colleague who’s a regular guest on the show. David is a criminal law expert, a former federal prosecutor, a professor of law here at Stanford, and the faculty co-director of the Stanford Criminal Justice Center.

His most recent book is called A Pattern of Violence: How the Law Classifies Crimes and What it Means for Justice. We asked him to come back today to talk to us about the charges against former President Trump, the one conviction in New York, the Supreme Court’s immunity decision, how that might affect the convictions, and the recent decision by Judge Cannon to dismiss the charges in the case involving documents, so there’s a lot to talk about. Welcome back, David. 

David Sklansky: It’s good to be back. 

Rich Ford: So, why don’t we start by talking about Judge Cannon’s decision to dismiss the classified documents case? What do you think about that? What do you think of her rationale for dismissing that case? And what are the prospects for the case going forward, as there’s likely to be an appeal?

David Sklansky: Well, I think there is going to be appeal, and it’s almost certain that I think that this decision is going to be reversed. It’s a really extraordinary decision that reverses what has been viewed as obvious and commonsensical by courts and lawyers for five decades. For that entire time, pretty much everyone has agreed that federal statutes authorize the Department of Justice to appoint a special counsel in circumstances where the Attorney General determines that it would aid either justice or the appearance of justice to bring in somebody who clearly has some distance from the president, and the reason why that’s been viewed as obvious by almost everyone is that federal statutes say that pretty plainly, and the Supreme Court treated it as obvious 50 years ago when it decided the Nixon immunity case, and the lawyers in that case also treated it as obvious, so Judge Cannon takes 93 pages or so to engage in what I think has to be characterized as a very strained interpretation of the federal statutes at issue in order to conclude that the Supreme Court was wrong to think that federal statutes authorized the Department of Justice to appoint a special counsel. In fact, no federal statute allows the Department of Justice to do this, she says, and it would be a violation of the important constitutional principle of separation of powers for a prosecution like this to be allowed to continue. 

Pam Karlan: So can I ask you a question about this, David, which is the idea, as you say, behind a special prosecutor or a special counsel, and she makes a lot at one point in the opinion about the changes in nomenclature over time, that sometimes these people were called special attorneys and sometimes they were called special counsel, sometimes they were called special prosecutor, as if the nomenclature actually matters, but as you say, the idea behind this was is to really deal with the appearance and potentially the reality of a conflict when the president directly appoints the person who then investigates the president or the like. Although in this case, it’s more an appearance because she seems to acknowledge that if Merrick Garland had simply ordered the U.S. Attorney for the Southern District of Florida to bring this case, there would be no problem. There would be no constitutional obstacle to that, so it seems like kind of ironic because what she’s really saying is, you want the president here, the political opponent of the person who’s being investigated to be much more in charge of the investigation.

David Sklansky: Yeah. Ironic, I think, is a mild term here. It seems

Pam Karlan: Or perverse.

David Sklansky: Topsy turvy. Because everybody, I think, including Judge Cannon agrees that the Attorney General could have brought exactly this prosecution, so Judge Cannon’s argument is that it violates the separation of powers and it’s an encroachment by the executive branch on the prerogatives of the legislature for the Department of Justice to handle the case in this way by bringing an outside special counsel.

It wouldn’t be an aggrandizement of executive power for Mayor Garland just to have ordered that Trump be indicted and tried, but for Mayor Garland to say, I want to bend over backward to make sure that we are not, we not only are being impartial but that we can be viewed as being impartial and that everybody will understand we’re being impartial.

For Merrick Garland to say, I don’t want to do it myself. I want to bring in a more independent prosecutor to make these decisions. That’s, she says, an aggrandizement of executive power. 

Pam Karlan: Which does seem, as you say, to be kind of topsy turvy. The other thing is, she’s done some extraordinary things along the way.

I mean, I think everybody started off believing this case was a straightforward slam dunk of a case, and she has turned it into a several year long, kind of Odyssey through odd rulings and the like. 

David Sklansky: Yeah, so the ruling that first got her a lot of attention was before this case had even been assigned to her for trial.

She ordered a special master appointed to review all the materials that the government had seized in its search of Mar-a-Lago to make sure that none of those materials were attorney-client privileged and that none of those and that all those materials were materials that the government had a right to seize, which the 11th Circuit unanimously in a per curiam decision reversed, saying, That’s crazy! We don’t do that! That’s not how criminal procedure works in this country, and you don’t get special criminal procedure rules just because you’re Donald Trump, so, yeah, she already had made, gotten herself some notoriety. This will add to it. It’s also an extraordinary opinion, I think, in the ways that it strains statutory language.

She starts out as every judge always starts out when trying to construe a statute by saying we need to start with the plain words of the statute. When the words of the statute are clear, that’s what we follow, and then we have 93 pages that rest on the distinction between an officer and an official, on the distinction between commissioning somebody and appointing them.

At one point, she places a lot of weight on the fact that one of the statutes that seems to clearly authorize the Department of Justice to appoint a special counsel is in a part of the United States code that deals with the Federal Bureau of Investigation, so this is a statute that says the Attorney General can appoint special officers to investigate and prosecute criminal cases, and she says, well, since this isn’t a part of the code that deals with the FBI when the statute says investigate and prosecute, it must be thinking about appointing investigative agents that could help with the prosecution, so that’s what I mean when I say that these are fairly strained interpretations of the statutory language. 

Pam Karlan: Well, and the statutory language, I mean, your point is for 50 years, people have construed things this way, but the statute actually, that seems to me to kind of govern this case has been on the books even longer than that.

It’s been around since the 1960s, and it says, you know, the Attorney General or any other officer of the Department of Justice or any attorney specially appointed may, when directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal. 

David Sklansky: Yeah, and it’s been and it’s been used repeatedly, and as I, as you were alluding to earlier, Pam, she deals with this long history of relying on these statutes and of believing that the Department of Justice has authority to appoint special counsels by saying, well, we actually don’t have that long and consistent a history, and the reason why she says that we don’t have that long and consistent history is that the duties and the procedures used to appoint special counsels have varied from case to case and even the nomenclature has varied from case to case.

Pam Karlan: The nomenclature point is where I just felt, okay, this is like Alice in Wonderland. 

David Sklansky: Yes, but it does give her an opportunity to cite a law review article by now Justice Kavanaugh. 

Pam Karlan: Yeah. Yeah, and the other thing is it’s interesting how many times she cites Justice Thomas’s separate consent in the, separate concurrence in the immunity case where he sort of, he doesn’t say it was wrong to appoint a special counsel. What he says is there are some interesting issues. 

David Sklansky: Yeah. Well, yes. On the other hand, I mean, it is true that this opinion largely tracks the reasoning that Justice Thomas said he thought was worth exploring in his concurring opinion. I actually think it’s more interesting not how often she cites that opinion but how often she seems to go out of her way to cite this law review article by Justice Kavanaugh and the opinions of Justice Barrett.

Pam Karlan: So, to what extent do you think what’s going on here is strategic as opposed to a straightforward interpretation of the law? I mean, the 93 pages, the inviting in the various people who had written on the issue to kind of give her a seminar, the handing down of this opinion the day after the attempted assassination of former President Trump, right as the Republican Convention is beginning. I mean, what’s going on here? 

David Sklansky: Yeah, so that’s hard to say. None of us know Judge Cannon. We weren’t inside her chambers. The opinion isn’t, she doesn’t say in the opinion, I love former President Trump. I want to help him out however I can. On the other hand, another striking thing about the opinion is despite the fact that it goes on for 93 pages, it is a little hard to identify the important principle that she thinks justifies twisting statutes in the way that she does.

She starts out by saying, we’re talking about a guarding against executive power swelling too large, and as you’ve pointed out, Pam, it’s hard to understand prohibiting the appointment of a special counsel aggrandizes executive power. She suggests at some point that maybe the important principle is ensuring accountability, and there’s a hint there and elsewhere in the opinion that there is a set of ideas driving the opinion other than helping out President Trump, and it has to do with the idea of what’s sometimes it’s called the unitary executive, the idea that it’s good to have a really strong president, but it’s bad to have a really strong bureaucracy.

We want executive leaders who say, I’m going to do this, and this is what, and it’s going to go forward, and we don’t want bureaucrats and government employees who will cloak government decisions in a deceptive aura of neutrality and professionalism and who can be, I guess some, in some cases, nameless and faceless, although obviously, the special counsel is neither nameless nor faceless, so I, it is possible that this is motivated by a sincere belief that she wants to help in rolling back the administrative state.

Pam Karlan: So the idea. Let me just stop you there for a sec, David, and ask, so if you put that in more concrete terms here, it would be, it’s really important that Joe Biden himself own this prosecution, and the problem here is he’s pretending not to own the prosecution by creating this aura of, this is not me prosecuting Donald Trump.

This is some independent having made that decision. That’s the kind of concrete version of what you’re saying, right? 

Rich Ford: Is that it? Or is it an abstract idea of a unitary executive? There were pieces of this that reminded me of the rollback of Chevron deference, so I see that, but it almost seems like it’s that theory gone wrong because, as you both have pointed out, this makes the executive, this aggrandizes the executive branch, but it is a way of ensuring that the executive branch, the president is more powerful. Is it something like that? 

David Sklansky: Yeah, I think it could be both of those things.

As I said, she doesn’t explain any of this, so we’re really just having to interpolate, and imagine what could be justifying this other than a desire to help out President Trump.

Pam Karlan: If you really believe in the unitary executive, it’s hard to say that this is a real attack on that because the president decided to appoint Merrick Garland, and he can remove Merrick Garland for any reason whatsoever, and the Supreme Court has reaffirmed that recently, and the president could presumably tell Merrick Garland, fire Jack Smith. Don’t go forward with this prosecution, and if he doesn’t do it, the president can then tell Lisa Monaco to do it and the like, so it’s, you know, it’s hard to see how this actually is an attack on presidential power to have a special counsel here. 

David Sklansky: Well, it’s an attack on a particular way of exercising presidential power. It’s an attack on exercising presidential power by creating any kind of professional bureaucracy aimed at impartiality, as opposed to, as you say, Pam, President Biden just owning it and saying, I want the Department of Justice to go after Donald Trump. That would be okay, but if the president brings in outsiders because that will help him disguise what’s going on or diffuse the responsibility, and, again, I need to reiterate that we’re, this is really reading tea leaves because in this, in the 93 pages of this opinion, there’s only a few sentences that suggest that the concern here has to do with avoiding diffusion of responsibility and ensuring accountability.

Most of the time that she’s talking, talks about the great constitutional principles at stake, she says that she’s worried about aggrandizing executive power, which, as we’ve discussed, is very hard to make sense of in this context. 

Pam Karlan: The other thing about this is that I just have this feeling, given the oddity of the series of decisions she’s issued here, ranging from the one you talked about, the seizure of the materials to the asking people to give her dueling jury instructions before she ruled on the law that was actually going to be applied to this, I can’t help but feel that if there had been an indictment here by a regular U.S. attorney, she’d be entertaining claims of selective prosecution and impermissible government motives in the prosecution so that there really isn’t any version of this case that she’d be prepared to take to trial. 

David Sklansky: Yeah, and I think that a lot of the basis of this opinion is that Jack Smith’s appointment was illegal because he wasn’t in the Department of Justice at the time that he was brought in as special counsel, but you may remember that there were attacks on the appointment of the special counsel in the Hunter Biden case on the grounds that he was already in the Department of Justice and a special counsel needs to be somebody brought in from the outside, so I think if Jack Smith had been in the Department of Justice, there would have been a different set of arguments about why that’s an improper appointment, and if the case had been brought by a U.S. attorney, there would have been still a different set of of arguments, so although, we’ve spent some time trying to imagine what set of principles could lie behind this, Occam’s razor suggests that the principle may be helping out Donald Trump who appointed her, and who she may be hoping will appoint her to some higher office in the future. 

Rich Ford: Where does this go next? Is it possible that this case, which looked like it was going to be the slam dunk case against President Trump, is it possible that this case will go forward? 

David Sklansky: It’s possible, depending on what happens in November.

The case is going next to the 11th Circuit. As I said earlier, I think it’s highly likely the 11th Circuit will reverse Judge Cannon, but whether the case then proceeds to trial, I think, will depend on who’s president.

Pam Karlan: I mean, given the timing, and if you think about it, you know, the kind of briefing schedule and the like, is the 11th circuit even going to rule on this before the election?

David Sklansky: Unlikely, and certainly even if the 11th circuit reversed before the election, I, it’s, there’s no chance that this case could go to trial before the election. 

Pam Karlan: I know she has like a gazillion motions pending in front of her on other stuff. I mean, this really is a kind of run-out-the-clock case, I mean, so that as a practical matter, she has come fairly close to giving former president Trump immunity on this charge.

David Sklansky: Assuming he wins in November, yeah. 

Pam Karlan: Yeah, but even if he loses in November, she’s got a gazillion other motions to get through before this case goes to trial unless the 11th Circuit decides we’ve had enough of Judge Cannon on this case and reassigns it to another judge. 

David Sklansky: They may decide that. I think if it was just this ruling, I think that would be unlikely. I think the 11th Circuit would just reverse and send it back, but at this point, given her history, I think there is a chance that the 11th Circuit, when reversing, could say we should have a different judge brought in to handle this case moving forward. 

Pam Karlan: Yeah, and there have been news reports that some of her colleagues had urged her originally to step aside on this case precisely because of the appearance. I mean, this is a case about the appearance of independence and impropriety and politics both with regard to the special counsel and with regard to the judge.

David Sklansky: Yes, and I think a district judge can make a ruling that goes way out and is way aggressive in ways that don’t seem warranted by prior law or by the statute and get reversed for it without the appellate court thinking that we need to bring in somebody else, but when that happens twice, we may be in a different ballpark.

Pam Karlan: Yeah, it’s like fool me once, shame on you. Fool me twice, shame on me, so, speaking of immunity, this is not the only case that has broken strongly in former President Trump’s favor. The Supreme Court issued an opinion on the claims in the other prosecution brought by Jack Smith. Notably, with the exception of Justice Thomas, no one raised the question whether that prosecution was legitimate, and tell us a little bit about the immunity decision. 

David Sklansky: So, this was a challenge arguing that the indictment in the D.C. election interference case was unconstitutional because former President Trump is immune from prosecution for the events that are alleged in the indictment, and the Supreme Court wound up saying that might be right.

It depends on whether the events are official acts or private acts by the president, and the Court remanded to the district judge in D.C. to determine whether these acts that are alleged in that case are official or private, and the trial judge is going to have a hearing and we’ll need to make a decision about which of these acts, if any, are official and therefore can’t be the basis of prosecution.

Rich Ford: So, this is already a pretty shocking case. When this case started, I thought most people believed that it was almost inconceivable the Supreme Court would say there was absolute immunity even for official acts, and now here we are and trying to parse, you know, a series of fairly tricky distinctions because the Supreme Court also said that evidence that was gathered as a result of official acts couldn’t be used even to prove unlawful private acts, correct?

David Sklansky: Yeah, that’s, I think, in some ways, the oddest, the hardest to understand part of the opinion, and that’s the basis for a motion that Trump’s lawyers have now brought to the table in Manhattan to have his conviction in that case thrown out. It’s clear that the events for which Trump was prosecuted in that case are not themselves official acts.

Nobody, not even his lawyers, say that, but his lawyers argue that the evidence in that case involved some official acts that he took and that, for that reason, the Manhattan convictions need to be thrown out, and I think that motion is really a long shot. I’d be very surprised if Judge Merchan agrees with it for a bunch of reasons, one of which is that I think it’s hard to argue that even the evidence in the Manhattan case involved official acts. It involved acts that were taken in the White House.

Pam Karlan: It sounded like his personal checkbook, right? 

David Sklansky: Yeah. Yeah, so unless we say that nothing the president does in the White House can possibly be the basis for criminal prosecution and not even the Supreme Court said that I think that’s hard to argue, and then even if Judge Merchan decided that there was some evidence involving official acts that were introduced in that case, I think it’s highly likely that those errors would be deemed harmless. The former President Trump’s lawyers say this is a structural error, which means it’s the kind of error, that if it took place, you have to reverse the convictions, even if it didn’t seem to have any effect on the outcome of the case. I think it’s unlikely that that’s right or the correct way to interpret the Supreme Court’s opinion, but it’s very hard to say because this is, I think, of all the parts of the Supreme Court’s decision in the immunity case, it’s the murkiest, most difficult to understand piece.

Pam Karlan: Can I ask you a question about that, David, which is, as you say, there are some errors which are structural, so you don’t ask, was the error harmless? I mean, denying somebody the right to the appointed counsel of their choice is one, but even with regard to structural errors, don’t you have to have objected at trial?

David Sklansky: Yes, unless it’s viewed as a plain error, so, yeah, I think you’re right that even with a structural error, there could be an argument that it was waived, so that’s yet an additional reason why I think that the effort to get the Manhattan convictions thrown out on this basis is really a long shot, so we may, depending on what happens in New York, we may have the interesting scenario of an elect, a president-elect or maybe even a sitting president reporting to a court in New York for sentencing at some point. 

Pam Karlan: So here’s a, here’s the other thing, I mean you’ve pointed to, I think, the two extreme ends of the Supreme Court’s decision, the, you know, he’s absolutely immune for the stuff that’s within the core, solely presidential power, and I could sort of understand a version of that ruling, which is if Congress, if something solely within his power and Congress can’t limit it, then Congress can’t make it a crime either, and then at the other end, there’s this very bizarre evidentiary ruling, but what worries me is something that’s kind of in the middle, which is, they say that if something is arguably within the outer bounds of his official role, that it’s presumptively unconstitutional to. 

David Sklansky: At least. At least.

Pam Karlan: At least, he’s presumptively immune unless you can show that this won’t interfere with him at all, and then they say things like, you know, the president has a bully pulpit, so anytime he talks about anything, he’s really, within the scope of his job, which I have to say seems, first of all, I don’t understand how you really overcome that presumption, and the Supreme Court gives no explanation that, and second, it’s an extraordinarily broad version of the president’s job. I mean, so if he says at a, you know, if he says at a rally during his time as president, I think it’d be great if you go and beat up those people out there, well, he’s exercising the bully pulpit literally, and so the idea is that he’s presumptively immune. 

David Sklansky: Yeah, I agree with you. It’s a very broad view of what you need to prevent a president or former president from being prosecuted for, and then when you add on this evident, the evidentiary part, it gets even broader, and one way to deal with the issue that you raised a minute ago, Pam, about things that are, within the core authority of the president, Congress can’t criminalize them would be to say that federal statutes have to be interpreted so that they don’t reach that kind of activity by the president, but that’s different than saying that he’s immune because saying that he’s immune means that you have to decide this at the outset, that you can’t even, the case can’t even go forward, and it, that’s what Trump has wanted all along. He’s wanted to run out the clock, so the immunity issue was one of the ones he pushed, and another one was this argument that the special counsel was illegitimately appointed, and I think when these cases were initially filed, most people, including me, thought that both of those arguments were really non-starters.

They were so far outside the realm of what seemed like plausible ways to construe how the law applies to former presidents, but now the Supreme Court has endorsed one of them, and Judge Cannon has endorsed the other. 

Pam Karlan: Yeah, if I could just say, like, one other thing that puzzled me about the decision was the Court’s real failure to wrestle with the impeachment clauses of the Constitution because Article 2, Section 4 says the president dot dot dot shall be removed from office on impeachment for, and conviction of bribery or other crimes and high crimes and misdemeanors, and then article one says that, you know, the Senate should try the impeachment and then the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law, and what the Supreme Court now seems to be suggesting is if the president took a bribe to pardon somebody, he could be impeached, but he then can’t be tried for the bribery.

David Sklansky: Well, that’s not clear. I mean, Justice Barrett, who concurred in the opinion, did not agree with the evidence portion, and bribery was actually the example she used when arguing that what the Supreme, what the majority said can’t be right. She said, you have to be able to prosecute a former president for taking a bribe, and you can’t prosecute somebody for bribery without talking about the official act for which they took or solicited the bride, and the majority opinion by Chief Justice Roberts responds to that suggestion with a footnote that I’ve now read a dozen times, and I still can’t understand. He says, well, of course, we’re not saying that. We’re of course, you could point to the official record of the president’s acts, but what you can’t do is have testimony from the president or his aides or use their memoranda to probe that official act, so this opinion changes what the evidence portion of the ruling says. That the text of the opinion says you can’t introduce evidence of the president’s official acts in order to prove that his private acts constitute a crime.

The footnote says, of course, you can do that, but it can’t be testimony or by the president or his aides, and that’s a little hard to understand too, and it’s difficult to square with what’s in the text, so I’d say the good news is that even a majority of the Supreme Court seems to believe that it’s important that a former president, that it be possible to prosecute a former president for taking a bribe or soliciting a bribe. 

Pam Karlan: But not for any of the other high crimes or misdemeanors that involve an official act. 

David Sklansky: Well, it happens that’s the example that Justice Barrett uses, so that’s the one that Justice Roberts is responding to. It’s unclear how it would apply in other contexts. It’s unclear how it applies exactly in the context of bribery. It’s unclear what he mean, what Justice Roberts says when he says, of course, you could point to the official record. Like, I don’t know, what does he, what does that mean, the official record?

Pam Karlan: The official record is just going to be this, the pardon itself, which isn’t going to show that there was a bribe taken.

David Sklansky: Yeah, well, but, I mean, even introducing the pardon. The pardon is an official act, so if you’re proving the pardon by, I guess, introducing the document granting the pardon, that is proving an official act of the president.

Then to say, but you can’t probe it with the president’s writings or with testimony from his aides suggest that this is a different kind of privilege. It’s a privilege about the confidentiality of communications, which we have in evidence law, but that there’s nothing in the opinion that suggests that that’s what the Supreme Court was getting at.

Pam Karlan: What a mess. 

Rich Ford: So we have another, yet another quite confusing opinion where the one thing that’s clear is that President Trump wins. Thanks to David Sklansky for talking to us today. This is Stanford Legal, and if you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app.

It’ll help us improve and get new listeners to discover the show. I’m Rich Ford with Pam Karlan. See you next time.