Speaker 1: This is Bloombird Law with June Bresso from Bloomberg Radio.
Speaker 1: The controversial order by a federal judge to appoint a
Speaker 1: special master to review documents seized from former President Donald
Speaker 1: Trump's Florida home has been roundly criticized by legal experts,
Speaker 1: even by former Attorney General Bill Barr on Fox News.
Speaker 1: The opinion, I think was wrong, and I think the
Speaker 1: government should appeal it. Uh, It's deeply flawed in a
Speaker 1: number of ways. I don't think the appointment of a
Speaker 1: special master is going to hold up, and the Justice
Speaker 1: Department has decided to appeal Judge Aileen Cannon's order, taking
Speaker 1: a legal sledge hammer to her ruling. Joining me as
Speaker 1: national security law expert and former federal prosecutor, Jimmy Garula,
Speaker 1: a professor at Notre Dame Law School. Jimmy, let's start
Speaker 1: with the judges order. I frankly thought that Trump's motion
Speaker 1: for a special man ster was the longest of long shots.
Speaker 1: What was your reaction to the ruling? Well, I was
Speaker 1: surprised by the decision, and then when I read the decision,
Speaker 1: I was even more concerned by the lack of really
Speaker 1: thoughtful legal reasoning. It's a deeply flawed ruling an opinion,
Speaker 1: And I would say this as a law professor. Had
Speaker 1: this been the quality product that one of my students
Speaker 1: had submitted for a grade, I'm not sure that it
Speaker 1: would have received a passing grade. It's that poorly written.
Speaker 1: Is the judge's decision that the special Master can review
Speaker 1: the documents for executive privilege as well as attorney client
Speaker 1: privilege especially troubling. The problem is that there's no legal
Speaker 1: authority whatsoever for the proposition that a former president of
Speaker 1: the United States may properly invoke executive privilege. And more so,
Speaker 1: it's problematic because executive privilege has been raised in the
Speaker 1: context of whether or not Congress the legislature can access
Speaker 1: presidential documents, not whether the executive branch itself can access
Speaker 1: such documents. And that's the case here. He's claiming that
Speaker 1: there's an executive privilege not only for former presidents, but
Speaker 1: that the executive privilege further banned the executive branch of
Speaker 1: the government from accessing certain documents involving communications with the president.
Speaker 1: And there's no authority for that proposition whatsoever. You said
Speaker 1: this decision was deeply flawed. What's the most flawed part
Speaker 1: of it. I think there's two aspects to it. And
Speaker 1: by the way, Judge Cannon admits that this is an
Speaker 1: open issue, does not cite any authority for the proposition
Speaker 1: that executive privilege applies here. In fact, the one case
Speaker 1: that she cites, which is Trump versus. Thompson, which involves
Speaker 1: the January sixth Committee, a decision by the Supreme Court
Speaker 1: decided earlier this year that involved the legislative branch, and
Speaker 1: again the January six Committee that was seeking documents from
Speaker 1: President Trump, and she quotes from Justice Kavanaugh, but again
Speaker 1: that quote involves a very different context, not the legislative
Speaker 1: branch seeking to obtain executive records. But secondarily, the other
Speaker 1: problem with the ruling, as she grants a restraining order
Speaker 1: on the Department of Justice the FBI from continuing to
Speaker 1: investigate the matter while these eleven thousand documents are being
Speaker 1: reviewed by the Special Master. And the legal standard for
Speaker 1: an injunction is first and foremost number one, a substantial
Speaker 1: likelihood of success on the merits. And then she finds
Speaker 1: that there is a substantial likelihood of success on the merits.
Speaker 1: But the merits here involved whether the executive privilege applies
Speaker 1: to a former president with respect to requests from the
Speaker 1: executive branch, that's an open question. How can there be
Speaker 1: a substantial likelihood of success that there's this executive privilege
Speaker 1: that applies here when there's no authority to support it whatsoever.
Speaker 1: So that just is an absurd conclusion and certainly undermines
Speaker 1: and is going to hamper d J's investigation. Is it
Speaker 1: unheard of for a district judge to enjoin a federal
Speaker 1: criminal investigation. I'm unaware of any precedent. If there is precedent,
Speaker 1: it is extremely, extremely rare for the judiciary to intervene
Speaker 1: in an executive branch criminal investigation and order that that
Speaker 1: investigation be halted. So, this, in my opinion, is unprecedented
Speaker 1: ruling by the court. The judge can set out limits,
Speaker 1: I take it. But how long do you think it
Speaker 1: would take for a special Master to go through these? Well,
Speaker 1: it's complicated because you know that that's just simply the
Speaker 1: first the first effort here's I mean, so the special
Speaker 1: Master is going to take some time. I think with
Speaker 1: respect to the attorney client privileged documents, I think that
Speaker 1: that the Special Master should be able to go through
Speaker 1: these eleven thousand and documents in a reasonable period of time.
Speaker 1: But I mean that it could take months. I mean
Speaker 1: it's not inconceivable. This process could take months. On the
Speaker 1: executive privilege issue, that one is just confounding because how
Speaker 1: is the Special Master to determine whether something falls within
Speaker 1: the executive privilege when it's never been established by by
Speaker 1: any court that there is such an executive privilege. So
Speaker 1: this is just going to be a lot of subjectives,
Speaker 1: you know, second guessing, speculation by the Special Master. And
Speaker 1: then let's assume that the Special Master decides that certain
Speaker 1: documents do in fact or privileged under the executive privilege,
Speaker 1: then what's going to happen? Then I think that d
Speaker 1: o j would challenge that ruling or those rulings conceivably,
Speaker 1: and that could go up to the Court of Appeals,
Speaker 1: and that could go up to the Supreme Court. And
Speaker 1: so this is gonna be just protracted and protracted delay
Speaker 1: and delay, which of course benefits former President Trump. Did
Speaker 1: her ruling carve out a special accept to the normal
Speaker 1: legal process for the former president. It's putting him in
Speaker 1: the special category of one. In contrast to the Justice
Speaker 1: Department saying over and over again that we're going to
Speaker 1: treat him just like any other person. You know. The
Speaker 1: the Judge Cannon seemed to place a great deal of
Speaker 1: emphasis on the second requirement for an injunction, and that
Speaker 1: is a harm irreparable injury. And so here Judge Cannon
Speaker 1: found that there would be irreparable injury if a special
Speaker 1: Master is not selected to review these documents, because if
Speaker 1: ultimately d j's investigation results in an indictment, that indictment
Speaker 1: would damage the reputation of the president. Well, guess what,
Speaker 1: you know, Surprise, surprise, Every indictment damages the reputation of
Speaker 1: the defendants. So there's nothing unique here. And so for
Speaker 1: the court to place this this emphasis on the reputation
Speaker 1: of the former president being damaged by a criminal investigation
Speaker 1: and being damaged by a indictment of an indictment, in fact,
Speaker 1: return that happens in every single case. And so it
Speaker 1: seems to me that former President Trump is being treated
Speaker 1: differently by this court than defendants and virtually every other case.
Speaker 1: They're certainly not afforded a special master to review the
Speaker 1: evidence that was sees pursued into a lawfully issued search
Speaker 1: warrant and executed by by law enforcement officers and also,
Speaker 1: the FBI already went through the documents and set a
Speaker 1: sign attorney client privileged documents. Well, that's that's really interesting too,
Speaker 1: because with respect to the injunction, it should be underscored
Speaker 1: that this was not never requested by the plaintiffs and
Speaker 1: their mission and their initial motion for a special master,
Speaker 1: they wholly requested that that the FBI not be permitted
Speaker 1: to review the documents. And of course, because that motion
Speaker 1: was file so late after the execution of the search warrant,
Speaker 1: it was too late because the FBI had time to
Speaker 1: view all of the records that were sees. And so,
Speaker 1: in essence, the court is affording the plaintiffs something that
Speaker 1: they did not request and their initial pleadings, and that
Speaker 1: neither party was permitted to brief and litigate and argue
Speaker 1: before before the court. Can this hurt the FBI's investigation
Speaker 1: besides just delaying it, Well it can. It can hurt
Speaker 1: it in a couple of ways. Certainly delay and the
Speaker 1: delay you know, conceivably could be multiple months, you know,
Speaker 1: even even a year longer. And then the problem becomes,
Speaker 1: is this going to run up against presidential election? You know,
Speaker 1: assuming that former President Trump is the Republican candidate presidential candidate,
Speaker 1: in which case, based on d J policies and procedures,
Speaker 1: maybe too close to the presidential election where the FBI
Speaker 1: or d J may say, well, we just can't continue
Speaker 1: the investigation. We cannot return an indictment, you know, two months,
Speaker 1: three months before election, and then of course you know,
Speaker 1: taking it, you know, speculating, you know. Further, if former
Speaker 1: President Trump was was re elected to the presidency, then
Speaker 1: I suspect that that this investigation would be halted by
Speaker 1: the Department of Justice, that the Trump Department of Justice
Speaker 1: immediately the same day that he's sworn in as presidents.
Speaker 1: So it can certainly hurt the FBI investigation beyond simply
Speaker 1: the delay. And then one additional issue. If the Special
Speaker 1: Master concludes a certain documents fall within either the attorney
Speaker 1: client privilege or the executive privilege, then the FBI will
Speaker 1: not be permitted to use those documents as evidence to
Speaker 1: prove whether or not the former president violator federal law.
Speaker 1: The Justice Department has filed notice that it's going to
Speaker 1: appeal the judge's order, but it's also asking the judge
Speaker 1: for an emergency stay. Tell us about that. The Department
Speaker 1: of Justice is seeking the partial state, focusing on two
Speaker 1: important aspects of the Court's earlier ruling. First, the part
Speaker 1: of the Court's ruling that enjoyed the Department of Justice
Speaker 1: from using classified documents that were seized at Moral Lago
Speaker 1: in their criminal investigation. The Department of Justice wants to
Speaker 1: be able to use the classified documents not only for
Speaker 1: the purpose of determining any damage to national security, but
Speaker 1: also for purposes of their criminal investigation, which d J
Speaker 1: states that these two issues are inextricably linked and they
Speaker 1: can't be separated. As Judge Cannon had previously ordered. She
Speaker 1: stated that the Department of Justice was prohibited from using
Speaker 1: any of the documents sees to Morrow Lago, including the
Speaker 1: classified documents, for purposes of the criminal investigation, but at
Speaker 1: the same time, they could use those documents to assess
Speaker 1: the damage to national security as a result of their mishandling.
Speaker 1: And so this is kind of a very narrow focus,
Speaker 1: and I think the point here is that they're hoping,
Speaker 1: and I think that our arguments are very persuasive and compelling,
Speaker 1: that they can get the Court to reconsider its previous
Speaker 1: ruling on these narrow issues and avoid kind of a
Speaker 1: long protracted, you know, appeal with respect to these issues.
Speaker 1: Do you think the Justice Department has a good chance
Speaker 1: on its appeal to the Eleventh Circuit, even though it's
Speaker 1: considered the second most conservative circuit in the country, with
Speaker 1: six out of eleven judges Trump appointees. I do so. First,
Speaker 1: d o J is arguing that the Court's ruling on
Speaker 1: September five is going to result in irreparable harm to
Speaker 1: national security. And historically, the courts have been very deferential
Speaker 1: to the executive branch on determinations related to national security.
Speaker 1: You know why, because the executive branch is in a
Speaker 1: much better position to evaluate and assess any potential threats
Speaker 1: to national security, certainly much more than the courts. You know,
Speaker 1: the courts don't have the information, the evidence before the
Speaker 1: court to make that determination. So this claim by d
Speaker 1: o J that the Court's order is going to result
Speaker 1: and irreparable damage to national security, I think that any court,
Speaker 1: including the Eleventh Circuit, including the Supreme Court, should be
Speaker 1: very differential to d o J's determination on national security grounds. Finally, Jimmy,
Speaker 1: as a national security expert, what are your concerns about
Speaker 1: the mishandling of these classified documents. Over a hundred classified
Speaker 1: documents were seized by the FBI during the search, and
Speaker 1: dozens of those were classified as top secret documents, documents that,
Speaker 1: if obtained by our adverse areas, could result in severe
Speaker 1: damage to national security. So the fact that former President
Speaker 1: Trump literally had dozens and dozens of these top secret
Speaker 1: documents at his moral logo residents that were not properly
Speaker 1: stored that he did not have proper authority to retain
Speaker 1: is not only shocking and stunning, but again, it raises
Speaker 1: serious concerns regarding the jeopardy national security jeopardy that Trump's
Speaker 1: reckless actions have placed the United States. Thanks Jimmy, that's
Speaker 1: Jimmy ga rule of Notre Dame Law School. Remember to
Speaker 1: build the Wall chance that rang out at Trump rallies.
Speaker 1: Well thousands of Trump's supporters gave more than fifteen million
Speaker 1: dollars to a nonprofit that promised to build that wall
Speaker 1: on the southern border. But Manhattan District Attorney Alvin Bragg
Speaker 1: says though We Build the Wall group was a scam
Speaker 1: and that former Trump strategist Steve Bannon was the architect
Speaker 1: of it. It is a crime. It's a profit off
Speaker 1: the backs of donors by making pretenses. Bannon was charged
Speaker 1: with money laundering, fraud, and conspiracy. If those charges sound familiar,
Speaker 1: it's because Bannon faced similar federal charges in but he
Speaker 1: never went to trial and because of a last minute
Speaker 1: pardon from former President Donald Trump. Here's New York Attorney
Speaker 1: General Leticia James. Mr Bannon lied to ordinary citizens about
Speaker 1: this project. He diverted their hard earned money, He preyed
Speaker 1: upon the emotions of New Yorkers and Americans, and then
Speaker 1: when Mr Bannon was held accountable for his criminal actions,
Speaker 1: the former president pardoned him. After pleading not guilty to
Speaker 1: the charges, Bannon left the courthouse making his familiar claim
Speaker 1: that the charges were politically motivated. We're not going to
Speaker 1: back down, and they will not be able to shut
Speaker 1: me up, and I'm gonna stay and fight this. My guest,
Speaker 1: his former federal prosecutor, Robert Mint's a partner McCarter in English,
Speaker 1: Bob tell us about the charges against Bannon. All of
Speaker 1: these charges relate to a privately funded entity in which
Speaker 1: funds were raised from private individuals, mostly in smaller amounts
Speaker 1: five and ten dollars, in order to raise money for
Speaker 1: a boarder's wall. In two locations in Texas and in
Speaker 1: New Mexico. According to authorities, while none of this money
Speaker 1: was supposed to go to the individuals running this charitable entity,
Speaker 1: money instead was funneled to both the CEO of this
Speaker 1: company and to Mr Bannon for various private and personal uses.
Speaker 1: And that's essentially what they have been charged with here.
Speaker 1: So the charges echo of federal case brought against Bannon
Speaker 1: two years ago, but he was pardoned by former President
Speaker 1: Trump before trial. Are there any double jeopardy concerns here?
Speaker 1: Double jeopardy essentially prevented individual for being ride twice for
Speaker 1: the same offense. Now, in this case, there were federal
Speaker 1: charges that were brought and ultimately Mr Bannon never went
Speaker 1: to trial because he was pardoned by President Trump. In
Speaker 1: that case, double jeopardy does not apply because the jury
Speaker 1: was never convened to weigh the federal fraud charges. That's
Speaker 1: why these state charges will withstand a challenge to double jeopardy,
Speaker 1: even though Mr Bannon was already charged federally those charges. Again,
Speaker 1: no jury was ever in Canada, which means the trial
Speaker 1: never began and therefore double jeopardy did not attach. So
Speaker 1: the Manhattan District Attorney's office has sort of made itself
Speaker 1: the guardian of presidential pardons, and New York even passed
Speaker 1: a law three years ago. Why do you think the
Speaker 1: Manhattan District Attorney has taken this on not only Alvin
Speaker 1: Bragg but before him, Syvance. Well, this indictment it gets
Speaker 1: Mr Bannon is an example of the continuing efforts by
Speaker 1: the Manhattan distrit Attorney's office to charge recipients of federal
Speaker 1: pardons by President Trump. Because the State Prosecutors Bill leave
Speaker 1: they broke state laws as well as federal laws. So
Speaker 1: another example of state prosecutors charging someone who was pardoned
Speaker 1: by President Trump was the case in twenty eighteen where
Speaker 1: Trump's former campaign manager Paul Manaport was convicted in federal
Speaker 1: court of financial fraud, but was later pardoned by President Trump.
Speaker 1: In March nineteen, then Manhattan District Attorney Cyrus Vance charged
Speaker 1: Paul Manaport with mortgage fraud and a dozen other state
Speaker 1: felonies in that case. However, the judge ultimately ruled that
Speaker 1: those charges did violate the state's double jeopardy law because
Speaker 1: Mr Mantaport had stood for trial and had been convicted,
Speaker 1: and in that case, based upon the law as it
Speaker 1: existed in New York State at the time. Double jeopardy
Speaker 1: prevented the Manhattan District Attorney's office from bringing these charges,
Speaker 1: which were very similar to the federal charges that Mr
Speaker 1: Manafort had already been convicted of. Three of Bannon's former
Speaker 1: partners and We Built the Wall, were also charged to
Speaker 1: pleaded guilty, and a third went to trial that ended
Speaker 1: in a mistruy because the jury couldn't reach a unanimous verdict.
Speaker 1: In fact, and this is unusual, eleven of the jurors
Speaker 1: sent a note to the judge asking her to remove
Speaker 1: the twelfth juror, who they said had spoken of a
Speaker 1: government witch hunt and refused to deliberate based on the evidence.
Speaker 1: What does that tell you about the upcoming Bannon trial
Speaker 1: In this case, I think we can expect from Steve
Speaker 1: Bannon a politically charged defense. He's going to raise exactly
Speaker 1: those types of claims, but this is a political witch hunt.
Speaker 1: He's going to try to channel a lot of the
Speaker 1: rhetoric we've seen from President Trump regarding his own legal
Speaker 1: issues and hope that they can get at least one
Speaker 1: member of the jury to simply reject the evidence and
Speaker 1: buy into the theories that this entire prosecution is simply
Speaker 1: politically motivated. What prosecutors will have to do during the voidier,
Speaker 1: which is the part of the process where they pick jurors,
Speaker 1: is trying to make sure that every juror that's selected
Speaker 1: is wanting to be able to impartially unfairly way the
Speaker 1: evidence and make a decision solely based on that. I
Speaker 1: think we can also expect the judge to curtail the
Speaker 1: defense to the extent they are trying to make this
Speaker 1: a political issue. I think we're going to see the
Speaker 1: judge limit that type of argument and force the defense
Speaker 1: to focus on the evidence that prosecutors are presenting a trial.
Speaker 1: That's certainly what happened in the trial where Bannon was
Speaker 1: convicted of contempt of Congress. Thanks so much, Bob. That's
Speaker 1: Robert Mints of McCarter and English, and that's it for
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
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Speaker 1: night at tend M Wall Street Time. I'm June Grossow,
Speaker 1: and you're listening to Bloomberg FO