Neama Rahmani, President of West Coast Trial Lawyers, joined Forbes Senior Legal Editor Liane Jackson on "Forbes Newsroom" to discuss Judge Aileen Cannon's dismissal of former President Donald Trump's classified documents case and the dismissal of the involuntary manslaughter charges against actor Alec Baldwin in the 'Rust' movie set shooting.
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NewsTranscript
00:00Good afternoon, I'm Leanne Jackson, senior law editor at Forbes, and I am joined today
00:06by Nima Rahmani.
00:08He is the president of West Coast Trial Lawyers and also a former federal prosecutor.
00:13And I wanted to talk to you.
00:15I'm glad that you're with us because as a former federal prosecutor, I wanted to find
00:18out a little bit more because today we're talking about Judge Eileen Cannon and her
00:22latest decision to dismiss the classified documents case against former President Trump
00:27to dismiss the entire case.
00:29And one of her reasons, one of her reasons in the decision was that she felt that special
00:34prosecutor Jack Smith was unlawfully appointed.
00:38I want to get your take on that and what this means for going forward and for potential
00:43appeal.
00:44Leanne, I was shocked.
00:46We have decades of precedent appointing special prosecutors in this country.
00:51Judge Cannon ruled that that appointment was unconstitutional for two reasons.
00:56Senior officers of the United States, like the attorney general and U.S. attorneys, have
01:00to be appointed by the president and confirmed by the Senate.
01:04So Judge Cannon ruled that Smith's appointment violated the appointments clause of the Constitution.
01:10She also said that because the special counsel is funded automatically, that violates the
01:17appropriations clause of the Constitution, which requires Congress to affirmatively decide
01:23whether to appropriate funds or not.
01:26Do you think this was quite an interesting decision?
01:30Those are some people call this sort of a stretch and that a lot of her decisions have
01:35seemed to be trending towards finding ways to at least at the minimum delay the case.
01:39And in this case, she's tossed out the entire case.
01:42What do you think about the reasoning behind these, those that you described just now?
01:48Judge Cannon is either a bad judge or she's biased.
01:52She's considering arguments that no other judge would.
01:56And she's favored Trump at every possible turn.
01:59I felt that she may dismiss the case, but on presidential immunity, the Supreme Court
02:04gave her a very clear path to do so.
02:06But to rule that the special counsel is unconstitutionally appointed, that's something
02:13that has ramifications not just for this case, even though she said a ruling is just
02:16limited to this case.
02:18Think about Hunter Biden, who has been and continues to be prosecuted by a special
02:23counsel. The same reasoning would apply to his case.
02:26Could his case be dismissed?
02:28No other judge would have considered this argument.
02:30No other judge would have granted this argument.
02:33I wouldn't be surprised if Judge Cannon gets reversed on appeal by the 11th Circuit or
02:37even the Supreme Court.
02:39The 11th Circuit has not been a fan of her previous rulings.
02:42Do you feel like this also opens up an opportunity, as some have said, for the special
02:47counsel to ask for a substitution of the judge in this case to replace her?
02:52I wouldn't be surprised.
02:53Cannon's already been reversed twice by the 11th Circuit, which does lean
02:56conservative. I would expect them to reverse her again, either a three-judge panel or
03:02for a petition for a re-hearing on Bonk, which would be the entire 11th Circuit.
03:08There's really no precedent for what she's done.
03:10And even in the unlikely scenario where the 11th Circuit affirms her ruling, now we
03:15have a circuit split and the Supreme Court would have to step in near the case because
03:20there are constitutional consequences for what she said.
03:24And ultimately, you can't have some circuits saying that the Department of Special
03:29Counsel are unconstitutional, others that allow prosecutions to move forward.
03:34You know, in this case, Trump was indicted on 40 federal felony charges for allegedly
03:39withholding national security documents, keeping them at his home in Mar-a-Lago, bringing
03:44them back to his private residence and obstructing the investigation after that.
03:49If Judge Cannon's ruling were to be affirmed, which most observers feel that's not going
03:54to be the case, but if that were to happen, stranger things have been happening in the
03:58courts these days. What does this say for the future of presidential immunity?
04:03We've seen a lot of cases that are testing the limits of executive power, potentially
04:06abuse of power, that you're able to just take classified documents, allegedly in this
04:12case, and do sort of whatever you want without consequences.
04:17Well, it's a huge issue and there are two real separate issues, right?
04:19Presidential immunity, the Supreme Court gave a very broad definition of what constitutes
04:25an official act and which would be subject to immunity versus a personal one, which
04:30would allow for a criminal prosecution.
04:32But I think this is just an entirely separate issue altogether.
04:36We're talking about the appointment of a special counsel, which should be appointed in
04:41a case where the president or the attorney general may have a conflict of interest.
04:45Let's not forget, I mean, this is the Justice Department that's prosecuting Donald
04:48Trump or the Justice Department that's prosecuting Hunter Biden.
04:52So if we're not going to allow for special counsel appointment in these types of cases,
04:57we're going to rely on local U.S.
05:01attorneys who are appointed by the president, confirmed by the Senate, and they may be
05:05aligned with the president, which may create a problem.
05:08And also, this, you know, this ruling does come after Clarence Thomas made a Supreme
05:15Court Justice Clarence Thomas made sort of an allusion to the fact that that the special
05:21counsel may be inappropriately appointed.
05:24Do you feel like Judge Cannon took a cue from that and the timing of this in general?
05:31I agree that Judge Cannon took a cue from Justice Thomas.
05:35This is a fringe argument.
05:37Not many folks would entertain it.
05:39But Justice Thomas, in one of his opinions, did say that the appointment of the special
05:44counsel may be unconstitutional.
05:46I think Judge Cannon took that argument, ran with it.
05:48Certainly the defense did in their briefing and their arguments.
05:53And I think that's something that ultimately, if you poll legal scholars, if you poll judges,
05:59I don't think many would agree with this ruling.
06:02I'm currently teaching.
06:04I'm currently helping run a program at my alma mater, Harvard Law School.
06:08And talking to professors here, when the decision came out this morning, they were shocked.
06:13This is not a majority opinion.
06:15Whether you're talking about Judge Cannon or Justice Thomas, there's not going to be a
06:19lot of judges that agree with it.
06:21So much of what's come down lately has been what most would describe as unprecedented.
06:25In general, what, Nima, what are your thoughts on the former president has had a number of
06:31legal, not wins, but successes in terms of delaying trials.
06:38And I mean, he was he was convicted in New York on 34 counts.
06:43But so far on many of these other cases that people thought were going to be sort of not
06:48slam dunks, but definitely solid cases against him, some of the most important cases against him.
06:52He's had it's been very fortuitous for him.
06:55What are your thoughts on how this has played out?
06:57No question that Trump has had a lot of procedural wins.
07:00And if you look at the cases, the Hushman case was probably the most questionable in
07:05terms of the charges and the merits.
07:07And the classified documents case, many legal scholars thought it was a slam dunk.
07:12The documents were removed from D.C.
07:15They were at his personal residence in Mar-a-Lago.
07:18If you believe the allegations, Trump refused to reply to a lawfully issued grand jury subpoena,
07:25tried to obstruct justice, hide the documents.
07:27So if you look at the different cases of the four criminal trials, a lot of legal scholars
07:32thought that this was the strongest case.
07:34But of course, Judge Cannon was such a favorable draw for Donald Trump.
07:39And at every stage of the proceedings, whether it was discovery or disclosures pursuant to
07:46the Classified Information Procedures Act, she's delayed this case.
07:49And we know that delay is the friend of the former president.
07:53If, some people would say, when he's reelected in November, it's well established that a
07:58sitting president can't be prosecuted.
08:00So all these cases, whether it's South Florida, whether it's Washington, D.C., or even
08:05Fulton County, would have to be dismissed.
08:07Because there's no timeline of when the 11th Circuit would even take a look at this at
08:10this point, correct?
08:11Oh, of course.
08:12Jack Smith has 30 days to appeal, but by the time there's a briefing schedule, an oral
08:16argument, there is no way we're going to get a trial in the documents case before the
08:21election.
08:22So Judge Cannon, even before this ruling, taken the trial date off calendar indefinitely.
08:27Right.
08:28So she made sure of that even before this happened.
08:31And so just real quick, I know you have to go.
08:34I appreciate you joining us.
08:35You're kind of talking to us from a classroom there at Harvard.
08:37And I appreciate your time.
08:39But I wanted to get your opinion, because I know you've discussed this as well, on the
08:42Alec Baldwin case.
08:43Another surprising ruling out of Arizona, where the judge tossed that case because
08:48the prosecutors hadn't turned over bullet evidence that the defense had requested or
08:53didn't know about.
08:54One thing I do want to ask you about this is, you know, he's a celebrity.
08:58He has high-powered attorneys.
09:00Do you feel like that played into the decision to dismiss this case with prejudice against
09:04Alec Baldwin?
09:05I think the Baldwin case was more of a loss for the prosecution than it was a win for
09:11Baldwin and the defense.
09:12And obviously, Baldwin's lawyers, Quinn and Manuel, they did a very good job.
09:15They went to Harvard Law School, where I'm at right now.
09:18But every first-year law student knows that you have to disclose exculpatory evidence.
09:23It's a criminal law issue.
09:24It's a constitutional issue under the U.S. Supreme Court's seminal decision in United
09:29States v. Brady.
09:30So the fact that the prosecutors in the case, Morrissey and Johnston, received ammunition
09:35that suggested that someone other than Armour and Hand and Gutierrez-Reed supplied the live
09:41rounds that showed up on set and killed cinematographer Helena Hutchins, that was evidence that had
09:46to be disclosed to the defense.
09:47Because the argument is that Kenny, who has a prop store, he was the one who was responsible.
09:54And the fact that the prosecution didn't disclose this evidence was such a huge intentional
10:01error.
10:02That's the important part.
10:03When Morrissey took the stand, if she had testified truthfully that it was an inadvertent
10:09failure, maybe, just maybe, the case could have been salvaged.
10:13But it was clear that the failure to disclose this exculpatory evidence was intentional.
10:18The judge had no real choice but to issue the ultimate sanction, and that was dismissal
10:24of the case.
10:25I thought the prosecutor had also suggested that it was an inadvertent mistake, an oversight,
10:30that they had not turned over this ballistics evidence.
10:32Is that incorrect?
10:33I think that was because there was an affirmative decision to place it in another file that
10:38was not disclosed to the defense.
10:40And I think it was that decision that the judge in the case pointed to.
10:44And let's not forget, this isn't the first mistake made in the case.
10:47It was certainly the most serious.
10:49But from the beginning, the prosecution charged an unconstitutional enhancement.
10:54The New Mexico legislature passed a law that called for a five-year mandatory minimum sentence
11:00in a state prison for certain types of firearms enhancements.
11:04And obviously, we know that criminal laws can apply retroactively.
11:08That law was passed after the Rust shooting.
11:10Prosecutors tried to charge it, but that was stricken because it violated the ex post facto
11:15clause of the Constitution.
11:17Then the district attorney appointed a member of the New Mexico state legislature to be
11:21a special prosecutor in the case.
11:23And we know that's a separation of powers issue.
11:25Prosecutors are part of the executive branch.
11:27And obviously, legislature is the legislative branch.
11:30And when it was clear that prosecutors weren't ready for a preliminary hearing,
11:34they didn't dismiss the case, go to a grand jury and get indictment a year later.
11:39So really, this is the fourth mistake in the case, probably one of the most botched
11:44prosecutions in American history.
11:46And really, people should lose their jobs and potentially get sanctioned by the state
11:51bar.
11:52I mean, these are some really bad violations by the attorney's handle in this case.
11:56Yeah, it was almost a soap opera in itself.
11:58It could have been a movie that stumbles that kept appearing and kept happening in this
12:03case.
12:04Like you said, there were a lot of botched and missed opportunities.
12:08Not making a judgment on whether Alec Baldwin was guilty, but the prosecution definitely
12:14missed a lot of opportunities.
12:16I really appreciate you speaking with us, Nima, on both of these cases and giving us
12:20your time.
12:21And I hope you'll join us again.
12:22It was a fascinating discussion of these really intricate and interesting legal cases
12:26that are taking place.
12:27And I appreciate your time.
12:30Thanks, Sabah Milian.
12:31Look forward to being on soon.