1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Bresso from Bloomberg Radio. 2 00:00:09,320 --> 00:00:12,560 Speaker 1: The controversial order by a federal judge to appoint a 3 00:00:12,640 --> 00:00:17,320 Speaker 1: special master to review documents seized from former President Donald 4 00:00:17,320 --> 00:00:21,880 Speaker 1: Trump's Florida home has been roundly criticized by legal experts, 5 00:00:22,120 --> 00:00:25,439 Speaker 1: even by former Attorney General Bill Barr on Fox News. 6 00:00:25,920 --> 00:00:28,720 Speaker 1: The opinion, I think was wrong, and I think the 7 00:00:28,760 --> 00:00:32,519 Speaker 1: government should appeal it. Uh, It's deeply flawed in a 8 00:00:32,640 --> 00:00:36,199 Speaker 1: number of ways. I don't think the appointment of a 9 00:00:36,240 --> 00:00:40,040 Speaker 1: special master is going to hold up, and the Justice 10 00:00:40,120 --> 00:00:44,360 Speaker 1: Department has decided to appeal Judge Aileen Cannon's order, taking 11 00:00:44,360 --> 00:00:47,199 Speaker 1: a legal sledge hammer to her ruling. Joining me as 12 00:00:47,320 --> 00:00:51,479 Speaker 1: national security law expert and former federal prosecutor, Jimmy Garula, 13 00:00:51,760 --> 00:00:55,200 Speaker 1: a professor at Notre Dame Law School. Jimmy, let's start 14 00:00:55,200 --> 00:00:58,880 Speaker 1: with the judges order. I frankly thought that Trump's motion 15 00:00:59,000 --> 00:01:02,520 Speaker 1: for a special man ster was the longest of long shots. 16 00:01:03,000 --> 00:01:05,880 Speaker 1: What was your reaction to the ruling? Well, I was 17 00:01:05,959 --> 00:01:10,680 Speaker 1: surprised by the decision, and then when I read the decision, 18 00:01:11,080 --> 00:01:15,760 Speaker 1: I was even more concerned by the lack of really 19 00:01:16,040 --> 00:01:20,360 Speaker 1: thoughtful legal reasoning. It's a deeply flawed ruling an opinion, 20 00:01:20,480 --> 00:01:23,280 Speaker 1: And I would say this as a law professor. Had 21 00:01:23,400 --> 00:01:26,560 Speaker 1: this been the quality product that one of my students 22 00:01:26,600 --> 00:01:29,040 Speaker 1: had submitted for a grade, I'm not sure that it 23 00:01:29,040 --> 00:01:31,440 Speaker 1: would have received a passing grade. It's that poorly written. 24 00:01:31,600 --> 00:01:34,560 Speaker 1: Is the judge's decision that the special Master can review 25 00:01:34,600 --> 00:01:39,080 Speaker 1: the documents for executive privilege as well as attorney client 26 00:01:39,160 --> 00:01:43,600 Speaker 1: privilege especially troubling. The problem is that there's no legal 27 00:01:43,640 --> 00:01:49,040 Speaker 1: authority whatsoever for the proposition that a former president of 28 00:01:49,120 --> 00:01:54,120 Speaker 1: the United States may properly invoke executive privilege. And more so, 29 00:01:54,200 --> 00:01:58,120 Speaker 1: it's problematic because executive privilege has been raised in the 30 00:01:58,240 --> 00:02:03,320 Speaker 1: context of whether or not Congress the legislature can access 31 00:02:03,800 --> 00:02:09,400 Speaker 1: presidential documents, not whether the executive branch itself can access 32 00:02:09,520 --> 00:02:13,560 Speaker 1: such documents. And that's the case here. He's claiming that 33 00:02:13,600 --> 00:02:17,440 Speaker 1: there's an executive privilege not only for former presidents, but 34 00:02:17,520 --> 00:02:22,080 Speaker 1: that the executive privilege further banned the executive branch of 35 00:02:22,120 --> 00:02:27,079 Speaker 1: the government from accessing certain documents involving communications with the president. 36 00:02:27,160 --> 00:02:30,160 Speaker 1: And there's no authority for that proposition whatsoever. You said 37 00:02:30,240 --> 00:02:34,480 Speaker 1: this decision was deeply flawed. What's the most flawed part 38 00:02:34,520 --> 00:02:36,760 Speaker 1: of it. I think there's two aspects to it. And 39 00:02:36,800 --> 00:02:39,400 Speaker 1: by the way, Judge Cannon admits that this is an 40 00:02:39,400 --> 00:02:43,399 Speaker 1: open issue, does not cite any authority for the proposition 41 00:02:43,680 --> 00:02:47,600 Speaker 1: that executive privilege applies here. In fact, the one case 42 00:02:47,680 --> 00:02:51,440 Speaker 1: that she cites, which is Trump versus. Thompson, which involves 43 00:02:51,440 --> 00:02:54,520 Speaker 1: the January sixth Committee, a decision by the Supreme Court 44 00:02:54,520 --> 00:02:58,680 Speaker 1: decided earlier this year that involved the legislative branch, and 45 00:02:58,720 --> 00:03:01,639 Speaker 1: again the January six Committee that was seeking documents from 46 00:03:01,680 --> 00:03:06,160 Speaker 1: President Trump, and she quotes from Justice Kavanaugh, but again 47 00:03:06,200 --> 00:03:09,400 Speaker 1: that quote involves a very different context, not the legislative 48 00:03:09,400 --> 00:03:13,880 Speaker 1: branch seeking to obtain executive records. But secondarily, the other 49 00:03:13,960 --> 00:03:17,960 Speaker 1: problem with the ruling, as she grants a restraining order 50 00:03:18,280 --> 00:03:22,200 Speaker 1: on the Department of Justice the FBI from continuing to 51 00:03:22,320 --> 00:03:26,839 Speaker 1: investigate the matter while these eleven thousand documents are being 52 00:03:26,840 --> 00:03:31,520 Speaker 1: reviewed by the Special Master. And the legal standard for 53 00:03:31,600 --> 00:03:36,080 Speaker 1: an injunction is first and foremost number one, a substantial 54 00:03:36,160 --> 00:03:39,160 Speaker 1: likelihood of success on the merits. And then she finds 55 00:03:39,320 --> 00:03:42,360 Speaker 1: that there is a substantial likelihood of success on the merits. 56 00:03:42,400 --> 00:03:46,440 Speaker 1: But the merits here involved whether the executive privilege applies 57 00:03:46,480 --> 00:03:49,120 Speaker 1: to a former president with respect to requests from the 58 00:03:49,160 --> 00:03:52,680 Speaker 1: executive branch, that's an open question. How can there be 59 00:03:53,200 --> 00:03:57,560 Speaker 1: a substantial likelihood of success that there's this executive privilege 60 00:03:57,560 --> 00:04:01,480 Speaker 1: that applies here when there's no authority to support it whatsoever. 61 00:04:01,720 --> 00:04:05,480 Speaker 1: So that just is an absurd conclusion and certainly undermines 62 00:04:05,760 --> 00:04:08,840 Speaker 1: and is going to hamper d J's investigation. Is it 63 00:04:09,160 --> 00:04:12,920 Speaker 1: unheard of for a district judge to enjoin a federal 64 00:04:12,960 --> 00:04:18,159 Speaker 1: criminal investigation. I'm unaware of any precedent. If there is precedent, 65 00:04:18,360 --> 00:04:23,680 Speaker 1: it is extremely, extremely rare for the judiciary to intervene 66 00:04:24,279 --> 00:04:28,640 Speaker 1: in an executive branch criminal investigation and order that that 67 00:04:28,720 --> 00:04:33,080 Speaker 1: investigation be halted. So, this, in my opinion, is unprecedented 68 00:04:33,160 --> 00:04:36,400 Speaker 1: ruling by the court. The judge can set out limits, 69 00:04:36,600 --> 00:04:38,360 Speaker 1: I take it. But how long do you think it 70 00:04:38,360 --> 00:04:41,680 Speaker 1: would take for a special Master to go through these? Well, 71 00:04:42,480 --> 00:04:46,560 Speaker 1: it's complicated because you know that that's just simply the 72 00:04:46,600 --> 00:04:50,040 Speaker 1: first the first effort here's I mean, so the special 73 00:04:50,040 --> 00:04:52,000 Speaker 1: Master is going to take some time. I think with 74 00:04:52,040 --> 00:04:56,400 Speaker 1: respect to the attorney client privileged documents, I think that 75 00:04:56,400 --> 00:04:59,160 Speaker 1: that the Special Master should be able to go through 76 00:04:59,160 --> 00:05:03,039 Speaker 1: these eleven thousand and documents in a reasonable period of time. 77 00:05:03,040 --> 00:05:05,040 Speaker 1: But I mean that it could take months. I mean 78 00:05:05,080 --> 00:05:08,120 Speaker 1: it's not inconceivable. This process could take months. On the 79 00:05:08,200 --> 00:05:12,560 Speaker 1: executive privilege issue, that one is just confounding because how 80 00:05:12,680 --> 00:05:16,600 Speaker 1: is the Special Master to determine whether something falls within 81 00:05:16,680 --> 00:05:20,279 Speaker 1: the executive privilege when it's never been established by by 82 00:05:20,320 --> 00:05:23,080 Speaker 1: any court that there is such an executive privilege. So 83 00:05:23,080 --> 00:05:25,560 Speaker 1: this is just going to be a lot of subjectives, 84 00:05:25,600 --> 00:05:29,440 Speaker 1: you know, second guessing, speculation by the Special Master. And 85 00:05:29,480 --> 00:05:32,960 Speaker 1: then let's assume that the Special Master decides that certain 86 00:05:33,040 --> 00:05:37,120 Speaker 1: documents do in fact or privileged under the executive privilege, 87 00:05:37,560 --> 00:05:39,680 Speaker 1: then what's going to happen? Then I think that d 88 00:05:39,720 --> 00:05:43,720 Speaker 1: o j would challenge that ruling or those rulings conceivably, 89 00:05:44,440 --> 00:05:46,400 Speaker 1: and that could go up to the Court of Appeals, 90 00:05:46,400 --> 00:05:49,279 Speaker 1: and that could go up to the Supreme Court. And 91 00:05:49,360 --> 00:05:52,799 Speaker 1: so this is gonna be just protracted and protracted delay 92 00:05:52,839 --> 00:05:57,000 Speaker 1: and delay, which of course benefits former President Trump. Did 93 00:05:57,000 --> 00:06:00,880 Speaker 1: her ruling carve out a special accept to the normal 94 00:06:00,960 --> 00:06:04,320 Speaker 1: legal process for the former president. It's putting him in 95 00:06:04,320 --> 00:06:08,120 Speaker 1: the special category of one. In contrast to the Justice 96 00:06:08,160 --> 00:06:10,640 Speaker 1: Department saying over and over again that we're going to 97 00:06:10,760 --> 00:06:13,799 Speaker 1: treat him just like any other person. You know. The 98 00:06:13,800 --> 00:06:17,240 Speaker 1: the Judge Cannon seemed to place a great deal of 99 00:06:17,240 --> 00:06:21,800 Speaker 1: emphasis on the second requirement for an injunction, and that 100 00:06:21,960 --> 00:06:27,680 Speaker 1: is a harm irreparable injury. And so here Judge Cannon 101 00:06:27,720 --> 00:06:31,880 Speaker 1: found that there would be irreparable injury if a special 102 00:06:31,880 --> 00:06:36,320 Speaker 1: Master is not selected to review these documents, because if 103 00:06:36,400 --> 00:06:40,039 Speaker 1: ultimately d j's investigation results in an indictment, that indictment 104 00:06:40,120 --> 00:06:43,159 Speaker 1: would damage the reputation of the president. Well, guess what, 105 00:06:43,560 --> 00:06:48,200 Speaker 1: you know, Surprise, surprise, Every indictment damages the reputation of 106 00:06:48,240 --> 00:06:51,560 Speaker 1: the defendants. So there's nothing unique here. And so for 107 00:06:51,680 --> 00:06:56,479 Speaker 1: the court to place this this emphasis on the reputation 108 00:06:56,800 --> 00:06:59,960 Speaker 1: of the former president being damaged by a criminal investigation 109 00:07:00,040 --> 00:07:04,359 Speaker 1: and being damaged by a indictment of an indictment, in fact, 110 00:07:04,360 --> 00:07:07,880 Speaker 1: return that happens in every single case. And so it 111 00:07:08,000 --> 00:07:12,440 Speaker 1: seems to me that former President Trump is being treated 112 00:07:12,520 --> 00:07:18,000 Speaker 1: differently by this court than defendants and virtually every other case. 113 00:07:18,120 --> 00:07:21,280 Speaker 1: They're certainly not afforded a special master to review the 114 00:07:21,320 --> 00:07:25,000 Speaker 1: evidence that was sees pursued into a lawfully issued search 115 00:07:25,040 --> 00:07:28,920 Speaker 1: warrant and executed by by law enforcement officers and also, 116 00:07:29,000 --> 00:07:32,680 Speaker 1: the FBI already went through the documents and set a 117 00:07:32,760 --> 00:07:37,760 Speaker 1: sign attorney client privileged documents. Well, that's that's really interesting too, 118 00:07:37,800 --> 00:07:42,240 Speaker 1: because with respect to the injunction, it should be underscored 119 00:07:42,760 --> 00:07:46,520 Speaker 1: that this was not never requested by the plaintiffs and 120 00:07:46,520 --> 00:07:50,320 Speaker 1: their mission and their initial motion for a special master, 121 00:07:50,840 --> 00:07:55,800 Speaker 1: they wholly requested that that the FBI not be permitted 122 00:07:55,960 --> 00:07:59,720 Speaker 1: to review the documents. And of course, because that motion 123 00:07:59,800 --> 00:08:03,880 Speaker 1: was file so late after the execution of the search warrant, 124 00:08:04,480 --> 00:08:07,640 Speaker 1: it was too late because the FBI had time to 125 00:08:08,160 --> 00:08:11,520 Speaker 1: view all of the records that were sees. And so, 126 00:08:12,240 --> 00:08:18,080 Speaker 1: in essence, the court is affording the plaintiffs something that 127 00:08:18,120 --> 00:08:21,840 Speaker 1: they did not request and their initial pleadings, and that 128 00:08:22,000 --> 00:08:26,960 Speaker 1: neither party was permitted to brief and litigate and argue 129 00:08:27,040 --> 00:08:31,239 Speaker 1: before before the court. Can this hurt the FBI's investigation 130 00:08:31,680 --> 00:08:35,280 Speaker 1: besides just delaying it, Well it can. It can hurt 131 00:08:35,320 --> 00:08:37,560 Speaker 1: it in a couple of ways. Certainly delay and the 132 00:08:37,640 --> 00:08:40,440 Speaker 1: delay you know, conceivably could be multiple months, you know, 133 00:08:40,520 --> 00:08:44,000 Speaker 1: even even a year longer. And then the problem becomes, 134 00:08:44,320 --> 00:08:49,920 Speaker 1: is this going to run up against presidential election? You know, 135 00:08:49,960 --> 00:08:55,720 Speaker 1: assuming that former President Trump is the Republican candidate presidential candidate, 136 00:08:56,280 --> 00:09:00,000 Speaker 1: in which case, based on d J policies and procedures, 137 00:09:00,160 --> 00:09:05,480 Speaker 1: maybe too close to the presidential election where the FBI 138 00:09:05,640 --> 00:09:07,800 Speaker 1: or d J may say, well, we just can't continue 139 00:09:07,800 --> 00:09:11,160 Speaker 1: the investigation. We cannot return an indictment, you know, two months, 140 00:09:11,160 --> 00:09:16,000 Speaker 1: three months before election, and then of course you know, 141 00:09:16,040 --> 00:09:19,840 Speaker 1: taking it, you know, speculating, you know. Further, if former 142 00:09:19,880 --> 00:09:24,080 Speaker 1: President Trump was was re elected to the presidency, then 143 00:09:24,120 --> 00:09:27,720 Speaker 1: I suspect that that this investigation would be halted by 144 00:09:27,720 --> 00:09:30,640 Speaker 1: the Department of Justice, that the Trump Department of Justice 145 00:09:31,080 --> 00:09:35,719 Speaker 1: immediately the same day that he's sworn in as presidents. 146 00:09:35,720 --> 00:09:40,360 Speaker 1: So it can certainly hurt the FBI investigation beyond simply 147 00:09:40,400 --> 00:09:44,160 Speaker 1: the delay. And then one additional issue. If the Special 148 00:09:44,200 --> 00:09:48,200 Speaker 1: Master concludes a certain documents fall within either the attorney 149 00:09:48,200 --> 00:09:51,520 Speaker 1: client privilege or the executive privilege, then the FBI will 150 00:09:51,559 --> 00:09:55,679 Speaker 1: not be permitted to use those documents as evidence to 151 00:09:55,920 --> 00:09:59,800 Speaker 1: prove whether or not the former president violator federal law. 152 00:10:00,440 --> 00:10:03,440 Speaker 1: The Justice Department has filed notice that it's going to 153 00:10:03,520 --> 00:10:07,400 Speaker 1: appeal the judge's order, but it's also asking the judge 154 00:10:07,559 --> 00:10:11,760 Speaker 1: for an emergency stay. Tell us about that. The Department 155 00:10:11,760 --> 00:10:14,880 Speaker 1: of Justice is seeking the partial state, focusing on two 156 00:10:14,880 --> 00:10:18,520 Speaker 1: important aspects of the Court's earlier ruling. First, the part 157 00:10:18,559 --> 00:10:21,520 Speaker 1: of the Court's ruling that enjoyed the Department of Justice 158 00:10:21,760 --> 00:10:26,400 Speaker 1: from using classified documents that were seized at Moral Lago 159 00:10:26,600 --> 00:10:30,240 Speaker 1: in their criminal investigation. The Department of Justice wants to 160 00:10:30,280 --> 00:10:33,400 Speaker 1: be able to use the classified documents not only for 161 00:10:33,440 --> 00:10:37,400 Speaker 1: the purpose of determining any damage to national security, but 162 00:10:37,520 --> 00:10:41,280 Speaker 1: also for purposes of their criminal investigation, which d J 163 00:10:41,720 --> 00:10:45,600 Speaker 1: states that these two issues are inextricably linked and they 164 00:10:45,640 --> 00:10:50,120 Speaker 1: can't be separated. As Judge Cannon had previously ordered. She 165 00:10:50,240 --> 00:10:54,240 Speaker 1: stated that the Department of Justice was prohibited from using 166 00:10:54,600 --> 00:10:57,160 Speaker 1: any of the documents sees to Morrow Lago, including the 167 00:10:57,200 --> 00:11:01,120 Speaker 1: classified documents, for purposes of the criminal investigation, but at 168 00:11:01,160 --> 00:11:05,560 Speaker 1: the same time, they could use those documents to assess 169 00:11:05,600 --> 00:11:09,719 Speaker 1: the damage to national security as a result of their mishandling. 170 00:11:09,760 --> 00:11:12,120 Speaker 1: And so this is kind of a very narrow focus, 171 00:11:12,280 --> 00:11:14,439 Speaker 1: and I think the point here is that they're hoping, 172 00:11:14,520 --> 00:11:17,319 Speaker 1: and I think that our arguments are very persuasive and compelling, 173 00:11:17,640 --> 00:11:20,520 Speaker 1: that they can get the Court to reconsider its previous 174 00:11:20,600 --> 00:11:23,400 Speaker 1: ruling on these narrow issues and avoid kind of a 175 00:11:23,440 --> 00:11:27,440 Speaker 1: long protracted, you know, appeal with respect to these issues. 176 00:11:27,960 --> 00:11:31,160 Speaker 1: Do you think the Justice Department has a good chance 177 00:11:31,480 --> 00:11:34,679 Speaker 1: on its appeal to the Eleventh Circuit, even though it's 178 00:11:34,720 --> 00:11:38,840 Speaker 1: considered the second most conservative circuit in the country, with 179 00:11:39,520 --> 00:11:45,480 Speaker 1: six out of eleven judges Trump appointees. I do so. First, 180 00:11:45,559 --> 00:11:48,640 Speaker 1: d o J is arguing that the Court's ruling on 181 00:11:48,720 --> 00:11:52,840 Speaker 1: September five is going to result in irreparable harm to 182 00:11:52,920 --> 00:11:57,880 Speaker 1: national security. And historically, the courts have been very deferential 183 00:11:58,000 --> 00:12:02,880 Speaker 1: to the executive branch on determinations related to national security. 184 00:12:03,200 --> 00:12:06,600 Speaker 1: You know why, because the executive branch is in a 185 00:12:06,679 --> 00:12:12,160 Speaker 1: much better position to evaluate and assess any potential threats 186 00:12:12,200 --> 00:12:15,560 Speaker 1: to national security, certainly much more than the courts. You know, 187 00:12:15,600 --> 00:12:19,280 Speaker 1: the courts don't have the information, the evidence before the 188 00:12:19,320 --> 00:12:22,480 Speaker 1: court to make that determination. So this claim by d 189 00:12:22,640 --> 00:12:25,080 Speaker 1: o J that the Court's order is going to result 190 00:12:25,160 --> 00:12:29,400 Speaker 1: and irreparable damage to national security, I think that any court, 191 00:12:29,800 --> 00:12:33,360 Speaker 1: including the Eleventh Circuit, including the Supreme Court, should be 192 00:12:33,480 --> 00:12:39,840 Speaker 1: very differential to d o J's determination on national security grounds. Finally, Jimmy, 193 00:12:39,960 --> 00:12:43,480 Speaker 1: as a national security expert, what are your concerns about 194 00:12:43,520 --> 00:12:48,239 Speaker 1: the mishandling of these classified documents. Over a hundred classified 195 00:12:48,280 --> 00:12:51,360 Speaker 1: documents were seized by the FBI during the search, and 196 00:12:51,640 --> 00:12:57,079 Speaker 1: dozens of those were classified as top secret documents, documents that, 197 00:12:57,320 --> 00:13:02,560 Speaker 1: if obtained by our adverse areas, could result in severe 198 00:13:03,040 --> 00:13:07,920 Speaker 1: damage to national security. So the fact that former President 199 00:13:07,960 --> 00:13:11,400 Speaker 1: Trump literally had dozens and dozens of these top secret 200 00:13:11,559 --> 00:13:15,319 Speaker 1: documents at his moral logo residents that were not properly 201 00:13:15,559 --> 00:13:19,720 Speaker 1: stored that he did not have proper authority to retain 202 00:13:20,440 --> 00:13:24,199 Speaker 1: is not only shocking and stunning, but again, it raises 203 00:13:24,320 --> 00:13:30,520 Speaker 1: serious concerns regarding the jeopardy national security jeopardy that Trump's 204 00:13:30,600 --> 00:13:34,199 Speaker 1: reckless actions have placed the United States. Thanks Jimmy, that's 205 00:13:34,280 --> 00:13:42,720 Speaker 1: Jimmy ga rule of Notre Dame Law School. Remember to 206 00:13:42,840 --> 00:13:46,160 Speaker 1: build the Wall chance that rang out at Trump rallies. 207 00:13:46,559 --> 00:13:50,280 Speaker 1: Well thousands of Trump's supporters gave more than fifteen million 208 00:13:50,400 --> 00:13:54,000 Speaker 1: dollars to a nonprofit that promised to build that wall 209 00:13:54,080 --> 00:13:57,920 Speaker 1: on the southern border. But Manhattan District Attorney Alvin Bragg 210 00:13:58,040 --> 00:14:01,240 Speaker 1: says though We Build the Wall group was a scam 211 00:14:01,320 --> 00:14:05,240 Speaker 1: and that former Trump strategist Steve Bannon was the architect 212 00:14:05,280 --> 00:14:08,320 Speaker 1: of it. It is a crime. It's a profit off 213 00:14:08,360 --> 00:14:13,840 Speaker 1: the backs of donors by making pretenses. Bannon was charged 214 00:14:13,880 --> 00:14:18,800 Speaker 1: with money laundering, fraud, and conspiracy. If those charges sound familiar, 215 00:14:19,160 --> 00:14:23,520 Speaker 1: it's because Bannon faced similar federal charges in but he 216 00:14:23,600 --> 00:14:25,960 Speaker 1: never went to trial and because of a last minute 217 00:14:26,000 --> 00:14:29,640 Speaker 1: pardon from former President Donald Trump. Here's New York Attorney 218 00:14:29,680 --> 00:14:34,240 Speaker 1: General Leticia James. Mr Bannon lied to ordinary citizens about 219 00:14:34,240 --> 00:14:38,520 Speaker 1: this project. He diverted their hard earned money, He preyed 220 00:14:38,600 --> 00:14:42,240 Speaker 1: upon the emotions of New Yorkers and Americans, and then 221 00:14:42,280 --> 00:14:46,560 Speaker 1: when Mr Bannon was held accountable for his criminal actions, 222 00:14:47,800 --> 00:14:51,160 Speaker 1: the former president pardoned him. After pleading not guilty to 223 00:14:51,200 --> 00:14:54,840 Speaker 1: the charges, Bannon left the courthouse making his familiar claim 224 00:14:54,960 --> 00:14:58,160 Speaker 1: that the charges were politically motivated. We're not going to 225 00:14:58,280 --> 00:15:00,360 Speaker 1: back down, and they will not be able to shut 226 00:15:00,400 --> 00:15:03,640 Speaker 1: me up, and I'm gonna stay and fight this. My guest, 227 00:15:03,680 --> 00:15:07,760 Speaker 1: his former federal prosecutor, Robert Mint's a partner McCarter in English, 228 00:15:08,120 --> 00:15:11,080 Speaker 1: Bob tell us about the charges against Bannon. All of 229 00:15:11,120 --> 00:15:16,000 Speaker 1: these charges relate to a privately funded entity in which 230 00:15:16,160 --> 00:15:20,800 Speaker 1: funds were raised from private individuals, mostly in smaller amounts 231 00:15:20,800 --> 00:15:23,400 Speaker 1: five and ten dollars, in order to raise money for 232 00:15:23,480 --> 00:15:26,440 Speaker 1: a boarder's wall. In two locations in Texas and in 233 00:15:26,440 --> 00:15:30,080 Speaker 1: New Mexico. According to authorities, while none of this money 234 00:15:30,120 --> 00:15:34,520 Speaker 1: was supposed to go to the individuals running this charitable entity, 235 00:15:34,800 --> 00:15:37,560 Speaker 1: money instead was funneled to both the CEO of this 236 00:15:37,640 --> 00:15:41,400 Speaker 1: company and to Mr Bannon for various private and personal uses. 237 00:15:41,520 --> 00:15:43,560 Speaker 1: And that's essentially what they have been charged with here. 238 00:15:44,000 --> 00:15:48,040 Speaker 1: So the charges echo of federal case brought against Bannon 239 00:15:48,120 --> 00:15:51,880 Speaker 1: two years ago, but he was pardoned by former President 240 00:15:51,920 --> 00:15:56,160 Speaker 1: Trump before trial. Are there any double jeopardy concerns here? 241 00:15:56,440 --> 00:16:01,040 Speaker 1: Double jeopardy essentially prevented individual for being ride twice for 242 00:16:01,120 --> 00:16:03,760 Speaker 1: the same offense. Now, in this case, there were federal 243 00:16:03,880 --> 00:16:07,480 Speaker 1: charges that were brought and ultimately Mr Bannon never went 244 00:16:07,520 --> 00:16:10,400 Speaker 1: to trial because he was pardoned by President Trump. In 245 00:16:10,440 --> 00:16:13,720 Speaker 1: that case, double jeopardy does not apply because the jury 246 00:16:13,840 --> 00:16:17,480 Speaker 1: was never convened to weigh the federal fraud charges. That's 247 00:16:17,480 --> 00:16:21,040 Speaker 1: why these state charges will withstand a challenge to double jeopardy, 248 00:16:21,240 --> 00:16:25,160 Speaker 1: even though Mr Bannon was already charged federally those charges. Again, 249 00:16:25,440 --> 00:16:28,160 Speaker 1: no jury was ever in Canada, which means the trial 250 00:16:28,320 --> 00:16:31,960 Speaker 1: never began and therefore double jeopardy did not attach. So 251 00:16:32,040 --> 00:16:35,400 Speaker 1: the Manhattan District Attorney's office has sort of made itself 252 00:16:35,440 --> 00:16:39,800 Speaker 1: the guardian of presidential pardons, and New York even passed 253 00:16:39,840 --> 00:16:42,280 Speaker 1: a law three years ago. Why do you think the 254 00:16:42,280 --> 00:16:45,360 Speaker 1: Manhattan District Attorney has taken this on not only Alvin 255 00:16:45,360 --> 00:16:49,280 Speaker 1: Bragg but before him, Syvance. Well, this indictment it gets 256 00:16:49,360 --> 00:16:52,520 Speaker 1: Mr Bannon is an example of the continuing efforts by 257 00:16:52,560 --> 00:16:56,160 Speaker 1: the Manhattan distrit Attorney's office to charge recipients of federal 258 00:16:56,320 --> 00:17:00,240 Speaker 1: pardons by President Trump. Because the State Prosecutors Bill leave 259 00:17:00,320 --> 00:17:03,160 Speaker 1: they broke state laws as well as federal laws. So 260 00:17:03,280 --> 00:17:07,400 Speaker 1: another example of state prosecutors charging someone who was pardoned 261 00:17:07,400 --> 00:17:10,400 Speaker 1: by President Trump was the case in twenty eighteen where 262 00:17:10,440 --> 00:17:14,720 Speaker 1: Trump's former campaign manager Paul Manaport was convicted in federal 263 00:17:14,720 --> 00:17:18,679 Speaker 1: court of financial fraud, but was later pardoned by President Trump. 264 00:17:18,760 --> 00:17:23,760 Speaker 1: In March nineteen, then Manhattan District Attorney Cyrus Vance charged 265 00:17:23,840 --> 00:17:27,639 Speaker 1: Paul Manaport with mortgage fraud and a dozen other state 266 00:17:27,720 --> 00:17:31,440 Speaker 1: felonies in that case. However, the judge ultimately ruled that 267 00:17:31,480 --> 00:17:34,840 Speaker 1: those charges did violate the state's double jeopardy law because 268 00:17:34,960 --> 00:17:38,400 Speaker 1: Mr Mantaport had stood for trial and had been convicted, 269 00:17:38,600 --> 00:17:40,879 Speaker 1: and in that case, based upon the law as it 270 00:17:40,960 --> 00:17:43,640 Speaker 1: existed in New York State at the time. Double jeopardy 271 00:17:43,720 --> 00:17:46,840 Speaker 1: prevented the Manhattan District Attorney's office from bringing these charges, 272 00:17:46,880 --> 00:17:49,480 Speaker 1: which were very similar to the federal charges that Mr 273 00:17:49,480 --> 00:17:52,399 Speaker 1: Manafort had already been convicted of. Three of Bannon's former 274 00:17:52,480 --> 00:17:55,760 Speaker 1: partners and We Built the Wall, were also charged to 275 00:17:56,000 --> 00:17:59,240 Speaker 1: pleaded guilty, and a third went to trial that ended 276 00:17:59,280 --> 00:18:03,040 Speaker 1: in a mistruy because the jury couldn't reach a unanimous verdict. 277 00:18:03,440 --> 00:18:07,040 Speaker 1: In fact, and this is unusual, eleven of the jurors 278 00:18:07,040 --> 00:18:09,679 Speaker 1: sent a note to the judge asking her to remove 279 00:18:09,760 --> 00:18:12,280 Speaker 1: the twelfth juror, who they said had spoken of a 280 00:18:12,359 --> 00:18:16,639 Speaker 1: government witch hunt and refused to deliberate based on the evidence. 281 00:18:17,160 --> 00:18:19,520 Speaker 1: What does that tell you about the upcoming Bannon trial 282 00:18:20,280 --> 00:18:22,760 Speaker 1: In this case, I think we can expect from Steve 283 00:18:22,800 --> 00:18:27,520 Speaker 1: Bannon a politically charged defense. He's going to raise exactly 284 00:18:27,640 --> 00:18:30,760 Speaker 1: those types of claims, but this is a political witch hunt. 285 00:18:30,960 --> 00:18:33,880 Speaker 1: He's going to try to channel a lot of the 286 00:18:33,960 --> 00:18:38,040 Speaker 1: rhetoric we've seen from President Trump regarding his own legal 287 00:18:38,080 --> 00:18:40,720 Speaker 1: issues and hope that they can get at least one 288 00:18:40,800 --> 00:18:44,720 Speaker 1: member of the jury to simply reject the evidence and 289 00:18:44,880 --> 00:18:48,360 Speaker 1: buy into the theories that this entire prosecution is simply 290 00:18:48,520 --> 00:18:53,359 Speaker 1: politically motivated. What prosecutors will have to do during the voidier, 291 00:18:53,440 --> 00:18:55,919 Speaker 1: which is the part of the process where they pick jurors, 292 00:18:56,480 --> 00:18:59,800 Speaker 1: is trying to make sure that every juror that's selected 293 00:18:59,880 --> 00:19:03,240 Speaker 1: is wanting to be able to impartially unfairly way the 294 00:19:03,320 --> 00:19:06,679 Speaker 1: evidence and make a decision solely based on that. I 295 00:19:06,720 --> 00:19:09,960 Speaker 1: think we can also expect the judge to curtail the 296 00:19:10,080 --> 00:19:12,719 Speaker 1: defense to the extent they are trying to make this 297 00:19:13,000 --> 00:19:15,560 Speaker 1: a political issue. I think we're going to see the 298 00:19:15,640 --> 00:19:19,360 Speaker 1: judge limit that type of argument and force the defense 299 00:19:19,400 --> 00:19:22,560 Speaker 1: to focus on the evidence that prosecutors are presenting a trial. 300 00:19:22,880 --> 00:19:25,560 Speaker 1: That's certainly what happened in the trial where Bannon was 301 00:19:25,600 --> 00:19:29,320 Speaker 1: convicted of contempt of Congress. Thanks so much, Bob. That's 302 00:19:29,440 --> 00:19:32,240 Speaker 1: Robert Mints of McCarter and English, and that's it for 303 00:19:32,240 --> 00:19:34,879 Speaker 1: this edition of The Bloomberg Law Show. Remember you can 304 00:19:34,880 --> 00:19:38,119 Speaker 1: always get the latest legal news on our Bloomberg Law Podcast. 305 00:19:38,440 --> 00:19:41,440 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 306 00:19:41,600 --> 00:19:46,639 Speaker 1: www dot Bloomberg dot com, Slash podcast Slash Law, and 307 00:19:46,680 --> 00:19:49,440 Speaker 1: remember to tune into The Bloomberg Law Show every week 308 00:19:49,560 --> 00:19:53,120 Speaker 1: night at tend M Wall Street Time. I'm June Grossow, 309 00:19:53,240 --> 00:20:00,800 Speaker 1: and you're listening to Bloomberg FO