On a recent episode of the Stanford Legal podcast, David Sklansky, the Stanley Morrison Professor of Law and faculty co-director of the Stanford Criminal Justice Center, discussed the recent dismissal of the classified documents case involving former President Trump. Calling it “a really extraordinary decision that reverses what has been viewed as obvious and commonsensical by courts and lawyers for five decades,” Sklansky says the decision is “almost certainly going to be reversed.”
Professor of Law
Sklansky also addressed other cases involving the former President, including the recently decided Supreme Court case involving presidential immunity.
A criminal law expert and former Assistant U.S. Attorney, Sklansky was interviewed by Stanford Legal co-hosts Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of Stanford Law School’s Supreme Court Litigation Clinic, and Richard Thompson Ford, the George E. Osborne Professor of Law.
The following is an edited version of the full podcast transcript, which can be found here.
Rich Ford: What do you think about Judge Cannon’s decision to dismiss the classified documents case? What are the prospects for the case going forward, as there’s likely to be an appeal?
I think there is going to be an appeal, and the decision is almost certainly 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. 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. 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.
Pam Karlan: The idea behind a special prosecutor or special counsel was to deal with the appearance, and potentially the reality, of a conflict when the President directly appoints the person who then investigates the President. 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 constitutional obstacle to that. It seems ironic because what she’s really saying is, “You want the President, the political opponent of the person who’s being investigated, to be much more in charge of the investigation.”
Ironic is a mild term here. It seems topsy-turvy. Everybody, 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. 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, she says, an aggrandizement of executive power.
Pam Karlan: I think everybody started off believing this case was a straightforward slam dunk, and she has turned it into a several-year-long odyssey through odd rulings and the like.
The ruling that first got her a lot of attention was before this case was assigned to her for trial. She ordered a special master to be 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 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! 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.”
Her opinion is also extraordinary 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.
Pam Karlan: Your point is for 50 years, people have construed things this way, but the statute that governs this case has been on the books even longer than that. It’s been around since the 1960s, and it says 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.
Yes, 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: To what extent do you think what’s going on here is strategic as opposed to a straightforward interpretation of the law?
That’s hard to say. None of us know Judge Cannon. She doesn’t say, “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,” but it’s hard to understand how appointing a special counsel aggrandizes executive power. She suggests 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 a “unitary executive”–that it’s good to have a really strong president, but it’s bad to have a really strong bureaucracy. It is possible that this is motivated by a sincere belief that it is important to roll back the administrative state.
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, will go forward?
It’s possible, depending on what happens in November. The case is going next to the 11th Circuit. I think it’s highly likely the 11th Circuit will reverse Judge Cannon, but whether the case then proceeds to trial will depend on who’s president.
Pam Karlan: Is the 11th circuit even going to rule on this before the election?
Unlikely, and even if the 11th Circuit reversed before the election, there’s no chance that this case could go to trial before the election.
Pam Karlan: As a practical matter, the judge has come fairly close to giving former President Trump immunity on this charge. Even if he loses, she has a gazillion other motions to get through until this case goes to trial, unless the 11th Circuit decides it has had enough of this judge.
They may decide that. If it were 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: This is not the only recent 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. Tell us a little bit about the immunity decision.
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. The trial judge is going to have a hearing and will 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: 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 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?
That’s the oddest and the hardest to understand part of the opinion, and that’s the basis for a motion that Trump’s lawyers have now brought 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 for that reason, the Manhattan convictions need to be thrown out. 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.
We could say that nothing the president does in the White House can possibly be the basis for criminal prosecution, but not even the Supreme Court said that. 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. 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 the correct way to interpret the Supreme Court’s opinion, but it’s very hard to say because of all the parts of the Supreme Court’s decision in the immunity case, it’s the murkiest.
Pam Karlan: You’ve pointed to the two extreme ends of the Supreme Court’s decision, but what worries me is something that’s in the middle, which is if something is arguably within the outer bounds of his official role, that it’s presumptively unconstitutional.
Yes, 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 the evidentiary part, it gets even broader. One way to deal with the issue about things that are within the core authority of the president 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 the case can’t even go forward. That’s what Trump has wanted all along. He 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. When these cases were initially filed most people, including me, thought that both 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: 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.
Well, that’s not clear. Justice Barrett, who concurred in the opinion, did not agree with the evidence portion. Bribery was actually the example she used when arguing that 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 bribe. 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. 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 footnote changes what the evidence portion of the ruling says. 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.
I’d say the good news is that even a majority of the Supreme Court seems to believe that it’s important 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.
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.
David Sklansky teaches and writes about criminal law, criminal procedure, and evidence. His scholarship has addressed the law, sociology, and political science of policing; the relationship between criminal justice and democracy; the proper exercise and constraint of prosecutorial power; the interpretation and application of the Fourth Amendment; fairness and accuracy in criminal adjudication; the relationship between criminal justice and immigration laws; the history of the hearsay rule and its connection with American slavery; ideas about violence in criminal law; and the role of race, gender, and sexual orientation in law enforcement. He is faculty co-director of the Stanford Criminal Justice Center, a faculty affiliate of Stanford’s Center for Comparative Studies in Race and Ethnicity, and a member of the American Law Institute.