WEBVTT - Fight Over Seized Mar-a-Lago Documents Escalates

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<v Speaker 1>This is Bloombird Law with June Bresso from Bloomberg Radio.

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<v Speaker 1>The controversial order by a federal judge to appoint a

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<v Speaker 1>special master to review documents seized from former President Donald

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<v Speaker 1>Trump's Florida home has been roundly criticized by legal experts,

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<v Speaker 1>even by former Attorney General Bill Barr on Fox News.

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<v Speaker 1>The opinion, I think was wrong, and I think the

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<v Speaker 1>government should appeal it. Uh, It's deeply flawed in a

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<v Speaker 1>number of ways. I don't think the appointment of a

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<v Speaker 1>special master is going to hold up, and the Justice

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<v Speaker 1>Department has decided to appeal Judge Aileen Cannon's order, taking

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<v Speaker 1>a legal sledge hammer to her ruling. Joining me as

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<v Speaker 1>national security law expert and former federal prosecutor, Jimmy Garula,

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<v Speaker 1>a professor at Notre Dame Law School. Jimmy, let's start

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<v Speaker 1>with the judges order. I frankly thought that Trump's motion

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<v Speaker 1>for a special man ster was the longest of long shots.

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<v Speaker 1>What was your reaction to the ruling? Well, I was

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<v Speaker 1>surprised by the decision, and then when I read the decision,

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<v Speaker 1>I was even more concerned by the lack of really

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<v Speaker 1>thoughtful legal reasoning. It's a deeply flawed ruling an opinion,

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<v Speaker 1>And I would say this as a law professor. Had

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<v Speaker 1>this been the quality product that one of my students

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<v Speaker 1>had submitted for a grade, I'm not sure that it

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<v Speaker 1>would have received a passing grade. It's that poorly written.

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<v Speaker 1>Is the judge's decision that the special Master can review

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<v Speaker 1>the documents for executive privilege as well as attorney client

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<v Speaker 1>privilege especially troubling. The problem is that there's no legal

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<v Speaker 1>authority whatsoever for the proposition that a former president of

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<v Speaker 1>the United States may properly invoke executive privilege. And more so,

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<v Speaker 1>it's problematic because executive privilege has been raised in the

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<v Speaker 1>context of whether or not Congress the legislature can access

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<v Speaker 1>presidential documents, not whether the executive branch itself can access

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<v Speaker 1>such documents. And that's the case here. He's claiming that

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<v Speaker 1>there's an executive privilege not only for former presidents, but

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<v Speaker 1>that the executive privilege further banned the executive branch of

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<v Speaker 1>the government from accessing certain documents involving communications with the president.

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<v Speaker 1>And there's no authority for that proposition whatsoever. You said

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<v Speaker 1>this decision was deeply flawed. What's the most flawed part

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<v Speaker 1>of it. I think there's two aspects to it. And

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<v Speaker 1>by the way, Judge Cannon admits that this is an

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<v Speaker 1>open issue, does not cite any authority for the proposition

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<v Speaker 1>that executive privilege applies here. In fact, the one case

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<v Speaker 1>that she cites, which is Trump versus. Thompson, which involves

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<v Speaker 1>the January sixth Committee, a decision by the Supreme Court

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<v Speaker 1>decided earlier this year that involved the legislative branch, and

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<v Speaker 1>again the January six Committee that was seeking documents from

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<v Speaker 1>President Trump, and she quotes from Justice Kavanaugh, but again

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<v Speaker 1>that quote involves a very different context, not the legislative

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<v Speaker 1>branch seeking to obtain executive records. But secondarily, the other

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<v Speaker 1>problem with the ruling, as she grants a restraining order

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<v Speaker 1>on the Department of Justice the FBI from continuing to

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<v Speaker 1>investigate the matter while these eleven thousand documents are being

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<v Speaker 1>reviewed by the Special Master. And the legal standard for

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<v Speaker 1>an injunction is first and foremost number one, a substantial

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<v Speaker 1>likelihood of success on the merits. And then she finds

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<v Speaker 1>that there is a substantial likelihood of success on the merits.

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<v Speaker 1>But the merits here involved whether the executive privilege applies

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<v Speaker 1>to a former president with respect to requests from the

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<v Speaker 1>executive branch, that's an open question. How can there be

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<v Speaker 1>a substantial likelihood of success that there's this executive privilege

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<v Speaker 1>that applies here when there's no authority to support it whatsoever.

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<v Speaker 1>So that just is an absurd conclusion and certainly undermines

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<v Speaker 1>and is going to hamper d J's investigation. Is it

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<v Speaker 1>unheard of for a district judge to enjoin a federal

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<v Speaker 1>criminal investigation. I'm unaware of any precedent. If there is precedent,

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<v Speaker 1>it is extremely, extremely rare for the judiciary to intervene

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<v Speaker 1>in an executive branch criminal investigation and order that that

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<v Speaker 1>investigation be halted. So, this, in my opinion, is unprecedented

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<v Speaker 1>ruling by the court. The judge can set out limits,

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<v Speaker 1>I take it. But how long do you think it

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<v Speaker 1>would take for a special Master to go through these? Well,

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<v Speaker 1>it's complicated because you know that that's just simply the

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<v Speaker 1>first the first effort here's I mean, so the special

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<v Speaker 1>Master is going to take some time. I think with

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<v Speaker 1>respect to the attorney client privileged documents, I think that

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<v Speaker 1>that the Special Master should be able to go through

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<v Speaker 1>these eleven thousand and documents in a reasonable period of time.

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<v Speaker 1>But I mean that it could take months. I mean

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<v Speaker 1>it's not inconceivable. This process could take months. On the

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<v Speaker 1>executive privilege issue, that one is just confounding because how

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<v Speaker 1>is the Special Master to determine whether something falls within

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<v Speaker 1>the executive privilege when it's never been established by by

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<v Speaker 1>any court that there is such an executive privilege. So

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<v Speaker 1>this is just going to be a lot of subjectives,

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<v Speaker 1>you know, second guessing, speculation by the Special Master. And

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<v Speaker 1>then let's assume that the Special Master decides that certain

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<v Speaker 1>documents do in fact or privileged under the executive privilege,

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<v Speaker 1>then what's going to happen? Then I think that d

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<v Speaker 1>o j would challenge that ruling or those rulings conceivably,

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<v Speaker 1>and that could go up to the Court of Appeals,

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<v Speaker 1>and that could go up to the Supreme Court. And

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<v Speaker 1>so this is gonna be just protracted and protracted delay

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<v Speaker 1>and delay, which of course benefits former President Trump. Did

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<v Speaker 1>her ruling carve out a special accept to the normal

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<v Speaker 1>legal process for the former president. It's putting him in

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<v Speaker 1>the special category of one. In contrast to the Justice

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<v Speaker 1>Department saying over and over again that we're going to

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<v Speaker 1>treat him just like any other person. You know. The

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<v Speaker 1>the Judge Cannon seemed to place a great deal of

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<v Speaker 1>emphasis on the second requirement for an injunction, and that

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<v Speaker 1>is a harm irreparable injury. And so here Judge Cannon

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<v Speaker 1>found that there would be irreparable injury if a special

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<v Speaker 1>Master is not selected to review these documents, because if

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<v Speaker 1>ultimately d j's investigation results in an indictment, that indictment

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<v Speaker 1>would damage the reputation of the president. Well, guess what,

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<v Speaker 1>you know, Surprise, surprise, Every indictment damages the reputation of

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<v Speaker 1>the defendants. So there's nothing unique here. And so for

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<v Speaker 1>the court to place this this emphasis on the reputation

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<v Speaker 1>of the former president being damaged by a criminal investigation

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<v Speaker 1>and being damaged by a indictment of an indictment, in fact,

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<v Speaker 1>return that happens in every single case. And so it

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<v Speaker 1>seems to me that former President Trump is being treated

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<v Speaker 1>differently by this court than defendants and virtually every other case.

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<v Speaker 1>They're certainly not afforded a special master to review the

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<v Speaker 1>evidence that was sees pursued into a lawfully issued search

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<v Speaker 1>warrant and executed by by law enforcement officers and also,

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<v Speaker 1>the FBI already went through the documents and set a

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<v Speaker 1>sign attorney client privileged documents. Well, that's that's really interesting too,

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<v Speaker 1>because with respect to the injunction, it should be underscored

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<v Speaker 1>that this was not never requested by the plaintiffs and

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<v Speaker 1>their mission and their initial motion for a special master,

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<v Speaker 1>they wholly requested that that the FBI not be permitted

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<v Speaker 1>to review the documents. And of course, because that motion

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<v Speaker 1>was file so late after the execution of the search warrant,

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<v Speaker 1>it was too late because the FBI had time to

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<v Speaker 1>view all of the records that were sees. And so,

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<v Speaker 1>in essence, the court is affording the plaintiffs something that

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<v Speaker 1>they did not request and their initial pleadings, and that

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<v Speaker 1>neither party was permitted to brief and litigate and argue

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<v Speaker 1>before before the court. Can this hurt the FBI's investigation

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<v Speaker 1>besides just delaying it, Well it can. It can hurt

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<v Speaker 1>it in a couple of ways. Certainly delay and the

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<v Speaker 1>delay you know, conceivably could be multiple months, you know,

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<v Speaker 1>even even a year longer. And then the problem becomes,

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<v Speaker 1>is this going to run up against presidential election? You know,

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<v Speaker 1>assuming that former President Trump is the Republican candidate presidential candidate,

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<v Speaker 1>in which case, based on d J policies and procedures,

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<v Speaker 1>maybe too close to the presidential election where the FBI

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<v Speaker 1>or d J may say, well, we just can't continue

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<v Speaker 1>the investigation. We cannot return an indictment, you know, two months,

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<v Speaker 1>three months before election, and then of course you know,

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<v Speaker 1>taking it, you know, speculating, you know. Further, if former

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<v Speaker 1>President Trump was was re elected to the presidency, then

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<v Speaker 1>I suspect that that this investigation would be halted by

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<v Speaker 1>the Department of Justice, that the Trump Department of Justice

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<v Speaker 1>immediately the same day that he's sworn in as presidents.

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<v Speaker 1>So it can certainly hurt the FBI investigation beyond simply

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<v Speaker 1>the delay. And then one additional issue. If the Special

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<v Speaker 1>Master concludes a certain documents fall within either the attorney

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<v Speaker 1>client privilege or the executive privilege, then the FBI will

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<v Speaker 1>not be permitted to use those documents as evidence to

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<v Speaker 1>prove whether or not the former president violator federal law.

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<v Speaker 1>The Justice Department has filed notice that it's going to

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<v Speaker 1>appeal the judge's order, but it's also asking the judge

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<v Speaker 1>for an emergency stay. Tell us about that. The Department

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<v Speaker 1>of Justice is seeking the partial state, focusing on two

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<v Speaker 1>important aspects of the Court's earlier ruling. First, the part

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<v Speaker 1>of the Court's ruling that enjoyed the Department of Justice

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<v Speaker 1>from using classified documents that were seized at Moral Lago

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<v Speaker 1>in their criminal investigation. The Department of Justice wants to

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<v Speaker 1>be able to use the classified documents not only for

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<v Speaker 1>the purpose of determining any damage to national security, but

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<v Speaker 1>also for purposes of their criminal investigation, which d J

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<v Speaker 1>states that these two issues are inextricably linked and they

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<v Speaker 1>can't be separated. As Judge Cannon had previously ordered. She

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<v Speaker 1>stated that the Department of Justice was prohibited from using

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<v Speaker 1>any of the documents sees to Morrow Lago, including the

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<v Speaker 1>classified documents, for purposes of the criminal investigation, but at

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<v Speaker 1>the same time, they could use those documents to assess

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<v Speaker 1>the damage to national security as a result of their mishandling.

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<v Speaker 1>And so this is kind of a very narrow focus,

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<v Speaker 1>and I think the point here is that they're hoping,

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<v Speaker 1>and I think that our arguments are very persuasive and compelling,

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<v Speaker 1>that they can get the Court to reconsider its previous

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<v Speaker 1>ruling on these narrow issues and avoid kind of a

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<v Speaker 1>long protracted, you know, appeal with respect to these issues.

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<v Speaker 1>Do you think the Justice Department has a good chance

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<v Speaker 1>on its appeal to the Eleventh Circuit, even though it's

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<v Speaker 1>considered the second most conservative circuit in the country, with

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<v Speaker 1>six out of eleven judges Trump appointees. I do so. First,

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<v Speaker 1>d o J is arguing that the Court's ruling on

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<v Speaker 1>September five is going to result in irreparable harm to

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<v Speaker 1>national security. And historically, the courts have been very deferential

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<v Speaker 1>to the executive branch on determinations related to national security.

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<v Speaker 1>You know why, because the executive branch is in a

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<v Speaker 1>much better position to evaluate and assess any potential threats

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<v Speaker 1>to national security, certainly much more than the courts. You know,

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<v Speaker 1>the courts don't have the information, the evidence before the

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<v Speaker 1>court to make that determination. So this claim by d

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<v Speaker 1>o J that the Court's order is going to result

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<v Speaker 1>and irreparable damage to national security, I think that any court,

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<v Speaker 1>including the Eleventh Circuit, including the Supreme Court, should be

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<v Speaker 1>very differential to d o J's determination on national security grounds. Finally, Jimmy,

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<v Speaker 1>as a national security expert, what are your concerns about

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<v Speaker 1>the mishandling of these classified documents. Over a hundred classified

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<v Speaker 1>documents were seized by the FBI during the search, and

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<v Speaker 1>dozens of those were classified as top secret documents, documents that,

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<v Speaker 1>if obtained by our adverse areas, could result in severe

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<v Speaker 1>damage to national security. So the fact that former President

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<v Speaker 1>Trump literally had dozens and dozens of these top secret

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<v Speaker 1>documents at his moral logo residents that were not properly

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<v Speaker 1>stored that he did not have proper authority to retain

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<v Speaker 1>is not only shocking and stunning, but again, it raises

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<v Speaker 1>serious concerns regarding the jeopardy national security jeopardy that Trump's

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<v Speaker 1>reckless actions have placed the United States. Thanks Jimmy, that's

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<v Speaker 1>Jimmy ga rule of Notre Dame Law School. Remember to

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<v Speaker 1>build the Wall chance that rang out at Trump rallies.

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<v Speaker 1>Well thousands of Trump's supporters gave more than fifteen million

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<v Speaker 1>dollars to a nonprofit that promised to build that wall

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<v Speaker 1>on the southern border. But Manhattan District Attorney Alvin Bragg

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<v Speaker 1>says though We Build the Wall group was a scam

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<v Speaker 1>and that former Trump strategist Steve Bannon was the architect

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<v Speaker 1>of it. It is a crime. It's a profit off

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<v Speaker 1>the backs of donors by making pretenses. Bannon was charged

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<v Speaker 1>with money laundering, fraud, and conspiracy. If those charges sound familiar,

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<v Speaker 1>it's because Bannon faced similar federal charges in but he

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<v Speaker 1>never went to trial and because of a last minute

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<v Speaker 1>pardon from former President Donald Trump. Here's New York Attorney

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<v Speaker 1>General Leticia James. Mr Bannon lied to ordinary citizens about

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<v Speaker 1>this project. He diverted their hard earned money, He preyed

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<v Speaker 1>upon the emotions of New Yorkers and Americans, and then

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<v Speaker 1>when Mr Bannon was held accountable for his criminal actions,

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<v Speaker 1>the former president pardoned him. After pleading not guilty to

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<v Speaker 1>the charges, Bannon left the courthouse making his familiar claim

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<v Speaker 1>that the charges were politically motivated. We're not going to

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<v Speaker 1>back down, and they will not be able to shut

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<v Speaker 1>me up, and I'm gonna stay and fight this. My guest,

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<v Speaker 1>his former federal prosecutor, Robert Mint's a partner McCarter in English,

0:15:08.120 --> 0:15:11.080
<v Speaker 1>Bob tell us about the charges against Bannon. All of

0:15:11.120 --> 0:15:16.000
<v Speaker 1>these charges relate to a privately funded entity in which

0:15:16.160 --> 0:15:20.800
<v Speaker 1>funds were raised from private individuals, mostly in smaller amounts

0:15:20.800 --> 0:15:23.400
<v Speaker 1>five and ten dollars, in order to raise money for

0:15:23.480 --> 0:15:26.440
<v Speaker 1>a boarder's wall. In two locations in Texas and in

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<v Speaker 1>New Mexico. According to authorities, while none of this money

0:15:30.120 --> 0:15:34.520
<v Speaker 1>was supposed to go to the individuals running this charitable entity,

0:15:34.800 --> 0:15:37.560
<v Speaker 1>money instead was funneled to both the CEO of this

0:15:37.640 --> 0:15:41.400
<v Speaker 1>company and to Mr Bannon for various private and personal uses.

0:15:41.520 --> 0:15:43.560
<v Speaker 1>And that's essentially what they have been charged with here.

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<v Speaker 1>So the charges echo of federal case brought against Bannon

0:15:48.120 --> 0:15:51.880
<v Speaker 1>two years ago, but he was pardoned by former President

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<v Speaker 1>Trump before trial. Are there any double jeopardy concerns here?

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<v Speaker 1>Double jeopardy essentially prevented individual for being ride twice for

0:16:01.120 --> 0:16:03.760
<v Speaker 1>the same offense. Now, in this case, there were federal

0:16:03.880 --> 0:16:07.480
<v Speaker 1>charges that were brought and ultimately Mr Bannon never went

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<v Speaker 1>to trial because he was pardoned by President Trump. In

0:16:10.440 --> 0:16:13.720
<v Speaker 1>that case, double jeopardy does not apply because the jury

0:16:13.840 --> 0:16:17.480
<v Speaker 1>was never convened to weigh the federal fraud charges. That's

0:16:17.480 --> 0:16:21.040
<v Speaker 1>why these state charges will withstand a challenge to double jeopardy,

0:16:21.240 --> 0:16:25.160
<v Speaker 1>even though Mr Bannon was already charged federally those charges. Again,

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<v Speaker 1>no jury was ever in Canada, which means the trial

0:16:28.320 --> 0:16:31.960
<v Speaker 1>never began and therefore double jeopardy did not attach. So

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<v Speaker 1>the Manhattan District Attorney's office has sort of made itself

0:16:35.440 --> 0:16:39.800
<v Speaker 1>the guardian of presidential pardons, and New York even passed

0:16:39.840 --> 0:16:42.280
<v Speaker 1>a law three years ago. Why do you think the

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<v Speaker 1>Manhattan District Attorney has taken this on not only Alvin

0:16:45.360 --> 0:16:49.280
<v Speaker 1>Bragg but before him, Syvance. Well, this indictment it gets

0:16:49.360 --> 0:16:52.520
<v Speaker 1>Mr Bannon is an example of the continuing efforts by

0:16:52.560 --> 0:16:56.160
<v Speaker 1>the Manhattan distrit Attorney's office to charge recipients of federal

0:16:56.320 --> 0:17:00.240
<v Speaker 1>pardons by President Trump. Because the State Prosecutors Bill leave

0:17:00.320 --> 0:17:03.160
<v Speaker 1>they broke state laws as well as federal laws. So

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<v Speaker 1>another example of state prosecutors charging someone who was pardoned

0:17:07.400 --> 0:17:10.400
<v Speaker 1>by President Trump was the case in twenty eighteen where

0:17:10.440 --> 0:17:14.720
<v Speaker 1>Trump's former campaign manager Paul Manaport was convicted in federal

0:17:14.720 --> 0:17:18.679
<v Speaker 1>court of financial fraud, but was later pardoned by President Trump.

0:17:18.760 --> 0:17:23.760
<v Speaker 1>In March nineteen, then Manhattan District Attorney Cyrus Vance charged

0:17:23.840 --> 0:17:27.639
<v Speaker 1>Paul Manaport with mortgage fraud and a dozen other state

0:17:27.720 --> 0:17:31.440
<v Speaker 1>felonies in that case. However, the judge ultimately ruled that

0:17:31.480 --> 0:17:34.840
<v Speaker 1>those charges did violate the state's double jeopardy law because

0:17:34.960 --> 0:17:38.400
<v Speaker 1>Mr Mantaport had stood for trial and had been convicted,

0:17:38.600 --> 0:17:40.879
<v Speaker 1>and in that case, based upon the law as it

0:17:40.960 --> 0:17:43.640
<v Speaker 1>existed in New York State at the time. Double jeopardy

0:17:43.720 --> 0:17:46.840
<v Speaker 1>prevented the Manhattan District Attorney's office from bringing these charges,

0:17:46.880 --> 0:17:49.480
<v Speaker 1>which were very similar to the federal charges that Mr

0:17:49.480 --> 0:17:52.399
<v Speaker 1>Manafort had already been convicted of. Three of Bannon's former

0:17:52.480 --> 0:17:55.760
<v Speaker 1>partners and We Built the Wall, were also charged to

0:17:56.000 --> 0:17:59.240
<v Speaker 1>pleaded guilty, and a third went to trial that ended

0:17:59.280 --> 0:18:03.040
<v Speaker 1>in a mistruy because the jury couldn't reach a unanimous verdict.

0:18:03.440 --> 0:18:07.040
<v Speaker 1>In fact, and this is unusual, eleven of the jurors

0:18:07.040 --> 0:18:09.679
<v Speaker 1>sent a note to the judge asking her to remove

0:18:09.760 --> 0:18:12.280
<v Speaker 1>the twelfth juror, who they said had spoken of a

0:18:12.359 --> 0:18:16.639
<v Speaker 1>government witch hunt and refused to deliberate based on the evidence.

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<v Speaker 1>What does that tell you about the upcoming Bannon trial

0:18:20.280 --> 0:18:22.760
<v Speaker 1>In this case, I think we can expect from Steve

0:18:22.800 --> 0:18:27.520
<v Speaker 1>Bannon a politically charged defense. He's going to raise exactly

0:18:27.640 --> 0:18:30.760
<v Speaker 1>those types of claims, but this is a political witch hunt.

0:18:30.960 --> 0:18:33.880
<v Speaker 1>He's going to try to channel a lot of the

0:18:33.960 --> 0:18:38.040
<v Speaker 1>rhetoric we've seen from President Trump regarding his own legal

0:18:38.080 --> 0:18:40.720
<v Speaker 1>issues and hope that they can get at least one

0:18:40.800 --> 0:18:44.720
<v Speaker 1>member of the jury to simply reject the evidence and

0:18:44.880 --> 0:18:48.360
<v Speaker 1>buy into the theories that this entire prosecution is simply

0:18:48.520 --> 0:18:53.359
<v Speaker 1>politically motivated. What prosecutors will have to do during the voidier,

0:18:53.440 --> 0:18:55.919
<v Speaker 1>which is the part of the process where they pick jurors,

0:18:56.480 --> 0:18:59.800
<v Speaker 1>is trying to make sure that every juror that's selected

0:18:59.880 --> 0:19:03.240
<v Speaker 1>is wanting to be able to impartially unfairly way the

0:19:03.320 --> 0:19:06.679
<v Speaker 1>evidence and make a decision solely based on that. I

0:19:06.720 --> 0:19:09.960
<v Speaker 1>think we can also expect the judge to curtail the

0:19:10.080 --> 0:19:12.719
<v Speaker 1>defense to the extent they are trying to make this

0:19:13.000 --> 0:19:15.560
<v Speaker 1>a political issue. I think we're going to see the

0:19:15.640 --> 0:19:19.360
<v Speaker 1>judge limit that type of argument and force the defense

0:19:19.400 --> 0:19:22.560
<v Speaker 1>to focus on the evidence that prosecutors are presenting a trial.

0:19:22.880 --> 0:19:25.560
<v Speaker 1>That's certainly what happened in the trial where Bannon was

0:19:25.600 --> 0:19:29.320
<v Speaker 1>convicted of contempt of Congress. Thanks so much, Bob. That's

0:19:29.440 --> 0:19:32.240
<v Speaker 1>Robert Mints of McCarter and English, and that's it for

0:19:32.240 --> 0:19:34.879
<v Speaker 1>this edition of The Bloomberg Law Show. Remember you can

0:19:34.880 --> 0:19:38.119
<v Speaker 1>always get the latest legal news on our Bloomberg Law Podcast.

0:19:38.440 --> 0:19:41.440
<v Speaker 1>You can find them on Apple Podcasts, Spotify, and at

0:19:41.600 --> 0:19:46.639
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0:19:46.680 --> 0:19:49.440
<v Speaker 1>remember to tune into The Bloomberg Law Show every week

0:19:49.560 --> 0:19:53.120
<v Speaker 1>night at tend M Wall Street Time. I'm June Grossow,

0:19:53.240 --> 0:20:00.800
<v Speaker 1>and you're listening to Bloomberg FO