What's next for Justice Department after Trump's classified documents case dismissed

Judge Aileen Cannon’s dismissal of the classified documents case against former President Trump is his second major legal victory in weeks. In a 93-page ruling, Cannon said the appointment of special counsel Jack Smith, who is overseeing the case, was unlawful. The Justice Department is expected to appeal the ruling. Geoff Bennett discussed more with Mary McCord.

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Amna Nawaz: Judge Aileen Cannon’s dismissal of the classified documents case against former President Trump is his second major legal victory in weeks.

In a 93-page ruling, Cannon said the appointment of special counsel Jack Smith, who’s overseeing the case, was unlawful.

Geoff Bennett: A spokesperson for the Department of Justice says it will appeal the ruling.

And joining us now is Mary McCord. She was acting head of the Justice Department’s National Security Division and a longtime U.S. attorney.

Mary, thanks so much for being with us.

(Crosstalk)

Amna Nawaz: And, Mary, we should point out here that this was not dismissed on the merits of the case, but, rather, as we pointed out, it was about the way in which special counsel Jack Smith was appointed by Attorney General Merrick Garland.

Other federal courts have upheld the constitutionality of a special counsel. So, based on your understanding, how out of step is the judge here with what you know legal precedent to be?

Mary McCord, Former Justice Department Official: Well, she’s quite out of step with the legal precedent. And I would say all of the cases, all of the courts who have upheld the appointment of the special counsel in the past, they have relied on a Supreme Court case called us v. Nixon, which accepted for purposes of that case that the attorney general had the authority to appoint special prosecutors with special responsibilities and actually pointed to the same statutes that the attorney general in this case relied on in appointing Jack Smith.

But you know who she’s not out of step with is Justice Thomas, who, in his concurring opinion in the immunity decision, spent several pages — in fact, the entire point of his concurring opinion was to call attention to the fact that he thought it needed to be examined whether the appointment of Jack Smith violated the appointments clause.

And that’s not an issue that was before the court in the immunity case. It hadn’t been briefed. It hadn’t been argued. Nevertheless, he set out real — a road map for determining that the appointments clause was invalid.

And if you read his short concurrence and her much longer opinion, Judge Cannon’s much longer opinion, you will see that she basically took his road map, added some more flesh to it, and that’s her decision.

Geoff Bennett: Mary, among the remaining cases facing the former president, this classified documents case was largely seen as the clearest-cut.

Could the special counsel, Jack Smith, bring this case, in another jurisdiction in D.C., for instance, where the courts there and the judges have far more experience handling these kinds of cases?

Mary McCord: So, I think the smartest thing, frankly, for Jack Smith — for the Department of Justice to do right now would be actually to re-indict the case, have a U.S. attorney re-indict the case, because one of the main points here is that Jack Smith is not presidentially appointed and Senate-confirmed.

And even if he’s an inferior officer — one of the main points, I should say, of Judge Cannon’s opinion, even as an inferior officer, she argues there was no statutory authority to appoint him. Well, you know who clearly has statutory authority to bring indictments is the U.S. attorney.

And so this could be re-brought in the Southern District of Florida. Again, it might then end up back in front of Judge Cannon. But at least this argument that the appointment of the special counsel is unconstitutional would be completely off the table, would avoid that issue going through appeals and up to the Supreme Court.

A U.S. attorney could bring it in D.C. as well. And, legally, I think there’s jurisdiction there. But that would, I think, receive a lot of criticism as being judge-shopping, looking for someone other than Judge Cannon.

But one thing that the department could do in really relatively short order is re-indict the case.

Amna Nawaz: Mary, we saw the former president welcome this decision. He issued a statement online. He also reiterated without evidence that the case had been brought as a result of what he called the weaponization of the Department of Justice.

He also said that this should now lead for the other cases against him to be dismissed. What about that? Could this decision have any impact on the other cases he’s facing?

Mary McCord: Well, I’d say at the outset it’s interesting that he says this shows the weaponization of the Department of Justice, because Judge Cannon, the basis for her opinion really, is that Jack Smith is not tethered tight enough to the attorney general, and that’s why the attorney general lacked authority to appoint him, because he’s got too much independence.

So it’s actually completely at odds with what Mr. Trump is saying. But with respect to application to other cases, I mean, right now, this is just a district court opinion that is binding on no other judge outside that district and no other judge in that district.

Now, so no one — it does not necessarily mean, for example, that the January 6 case will be dismissed on this grounds or anything like — well, that would be the only other one, I guess. But, certainly, we will see Mr. Trump filing, I expect, any moment now, any day now, filing something before Judge Chutkan in D.C. District Court.

He may wait until the judgment actually comes back from the Supreme Court, but I suspect he will file there asking the judge now to consider dismissing that case on the same grounds that Judge Cannon dismissed the Mar-a-Lago case.

Geoff Bennett: And, briefly, Mary, is there any universe in which the government’s appeal of this case could give Jack Smith an opening to push to have Judge Cannon removed from this case?

Mary McCord: So he could appeal this decision to the 11th Circuit and also seek her recusal.

In doing so, though, he’d be bringing a lot more into that than just this decision, I think. I think he’d be having to sort of — he would need to set forth a number of her decisions and opinions that — and make a case that she is biased and should be taken off this case.

I am not going to put money on Jack Smith doing that. Again, it is extraordinary for the Department of Justice to seek to have a judge removed. And it is extraordinary for higher courts to remove a judge. The bar is very, very high when it comes to bias. And I think a lot of people have the opinion that she’s biased in favor of Mr. Trump.

And, certainly, she has issued favorable decisions toward Mr. Trump, but she has also issued some favorable decisions, obviously, not this one, in favor of the government. And so I think it’s a very, very steep hill for the government to climb to seek her recusal.

But, yes, it is on the table as something they could do when they appeal.

Geoff Bennett: All right, that is Mary McCord.

Mary, thanks so much for your insights and for walking us through all of this. We deeply appreciate it.

Mary McCord: My pleasure.