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The appeal Trump wants justices to decide is extraordinarily narrow, Wehle says


Former President Trump is asking even more judges to rule on the documents federal agents recovered from his home. Trump, you will recall, asked for help from a judge he appointed. He got it, but then was partially overturned by an appeals panel, two of whom he appointed. So now his lawyers filed a very narrow appeal to the Supreme Court, including three members he appointed. Kim Wehle, author of "How To Read The Constitution And Why," joins us once again. Good morning.

KIM WEHLE: Good morning, Steve.

INSKEEP: How narrow is this appeal? What's he asking for?

WEHLE: It's extraordinarily narrow. It has to do with sort of a wonky procedural question as to when this appeal should go forward. Should it go forward now? Or should it go forward at the end of the case? Like, most appeals happen after all the rulings are made. So that's one issue. The second issue is - it's even more technical. Essentially, they're saying the way this appeal went up - that the 11th Circuit can only address the injunction. That is, it can only address whether or not DOJ can keep looking at the documents.

INSKEEP: And I guess we should just mention this is only about a limited number of documents that were marked classified that Trump keeps claiming in public, but not in court, are declassified somehow. That's what this is about?

WEHLE: Yes. This is about - so the 11th Circuit said the special master can look at the 11,000 documents-plus except for about a hundred that were classified. They said, listen; that has to stay with the Department of Justice. And that is the question that this limited appeal addresses. But as I said, it's a little technical in which part of that question can go forward, whether the special master - the appointment of the special master can go forward or just DOJ's looking at those documents. At the end of the day, Steve, it's not going to stop the Department of Justice from continuing the investigation involving the classified information. It could slow things down because they've asked to vacate the 11th Circuit's order, stopping that part of the procedure before the special master.

INSKEEP: I don't want to speculate here. But I'm thinking about the nature of the case, the narrowness of the appeal, the somewhat delay in filing. And I know Donald Trump's legal strategy all his life has been to fight everything to the maximum all the time, which makes me imagine the former president pounding his fist on the table and demanding an appeal and his reluctant lawyers eventually coming up with something just to say that they appealed. Does it look that way to you?

WEHLE: Yeah, some people have said that because, as I said, it doesn't really change the dynamics. It doesn't change sort of what's happening in the litigation. But it does change public opinion. That is, people - I think Donald Trump - and we saw this with the 60-plus lawsuits after the 2020 election - by filing things, create an impression that somehow there's a there there, that somehow there's another side to the story, that somehow DOJ or the judges did something wrong. And he scores points, I think, in sort of the misinformation that circles around it. When actually, people can file whatever they want. They can make arguments with some limitations. That doesn't mean they're good or merit - you know, strong arguments that are actually going to win.

But when public - the public hears that something's been filed by Donald Trump, it means somehow that he has a really strong argument, that in this moment, the 11th Circuit or, you know, the judges below or Justice Department did something wrong. And so far, I don't think any of those have really hit the mark, except with Judge Cannon, who got roundly, roundly reversed by the 11th Circuit on many elements of this case.

INSKEEP: Well, let's talk about that, Judge Cannon. The original district court judge was openly solicitous of the former president, said he was a special case, deserves special consideration. The appeals court, including two judges that Trump appointed, said, no, we have normal rules. The normal rules apply. We're going to apply them. In a few seconds, how can the Supreme Court show that they are calling this case straight? What would demonstrate that?

WEHLE: Well, you know, I do think there is a legitimate argument that the appeal wasn't properly noticed here. But I think the Supreme Court should, as the 11th Circuit did, look at the big picture here, which is national security and just let this go forward.

INSKEEP: Kim Wehle, it's always a pleasure talking with you. Thank you so much.

WEHLE: Thank you, Steve.

INSKEEP: She is a visiting law professor at American University. Transcript provided by NPR, Copyright NPR.

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