STEVE INSKEEP, HOST:
Let's get one perspective now on yesterday's court ruling in favor of former President Trump. Judge Aileen Cannon in Florida dismissed the charge that Trump mishandled classified documents by taking them out of the White House and failing to return them. Michael Gerhardt is watching this case. He's a professor at the University of North Carolina School of Law. Welcome, sir.
MICHAEL GERHARDT: Thank you very much.
INSKEEP: OK, Judge Cannon asserted that the special counsel prosecuting Trump was doing something unconstitutional. He hadn't been confirmed by the Senate. He wasn't spending money the right way. What do you see when you read her reasoning for that?
GERHARDT: Well, as somebody who's graded over thousands exam answers in constitutional law, we realize that in constitutional law, some answers can be good, some can be bad, some can be weak, some can be strong. Her opinion reads to me as if it vacillates between being weak and wrong. It's really a terrible opinion, has very little support and I think is likely to be overturned on appeal.
INSKEEP: There's a lot in these 93 pages and we've only got a few minutes but tell me one thing that strikes you as weak or wrong.
GERHARDT: It's completely counter to Supreme Court precedent.
INSKEEP: Ah, meaning that in the past, going back to the 1970s, the Supreme Court has ruled on the constitutionality of special counsels, and now she says otherwise. Is that what you mean?
GERHARDT: Yes, there's - in a very famous case, Watergate tapes case, United States v. Nixon, the court unanimously upheld this very mechanism that she has claimed is unconstitutional.
INSKEEP: OK, let's talk about what could happen now. Could the Justice Department say, OK, you find the special counsel unconstitutional - we can just refile this case using a regular United States attorney who is obviously constitutional?
GERHARDT: Yes, that would be one simple way of doing it. But also, that simple way of doing it underscores why her opinion is so outlandish. It's because she's basically ruling out what is relatively routine conduct within the Justice Department.
INSKEEP: What do you mean routine conduct within the Justice Department?
GERHARDT: This kind of appointment is not new. When President Trump was in office, this process was used to appoint Robert Mueller, for example, and Trump back then did not say it was unconstitutional. Nobody objected to it, and that's because it was routine.
INSKEEP: Mr. Gerhardt, I want to talk explicitly here about bias. And I want to be careful as well. People have institutional roles in our system. Judges apply the law. We shouldn't assume that a judge is a politician in robes solely because of which president appointed them or whatever the ruling was. But at the same time, this is a Trump appointee who's been reversed on appeal repeatedly in this case and now released this ruling on the opening morning of the Republican National Convention. What do you make of that?
GERHARDT: I make of the fact that - I make of that that she has, I think, demonstrated a pattern of bias in favor of former President Trump. The federal court of appeals that governs sort of the area in which she's a judge have twice overruled her very quickly and said she's just dead wrong. I think the appeal in this case will go the same path. But that could well raise the specter of three strikes and you're out, because Jack Smith is going to also ask that she be removed from the case on his appeal because she's demonstrated bias. And this very weak, I think, wrongly reasoned opinion is good evidence of that.
INSKEEP: You think that Jack Smith, the special counsel, could or will ask for a new judge in this case?
GERHARDT: Yes, I think as part of his appeal.
INSKEEP: And would that be - I mean, I don't know how often this happens. Would that be a normal thing, for an appeals court to say, well, yes, in fact, our own judge does seem to be biased here - there's an appearance of bias - let's try again?
GERHARDT: It would be unusual, that's for sure. But that, again, is - what we're looking at in this situation, what she's ruled here, is basically backed up by a concurrence, a single concurrence from Clarence Thomas. That's basically her primary authority. No other justices have demonstrated their interest in overturning this mechanism.
INSKEEP: Oh, you're talking about an earlier case in which Clarence Thomas voiced an opinion that was not shared by any of the other eight justices.
GERHARDT: That was the recent case of Trump v. the United States dealing with presidential immunity.
INSKEEP: OK. All right, Michael Gerhardt, thanks very much for your insights. I really appreciate it.
GERHARDT: Thank you very much.
INSKEEP: He's a member of the faculty at the University of North Carolina School of Law.
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