Judging Freedom - Judge says FBI’s evidence for Trump search is ‘reliable’

Episode Date: August 22, 2022

Judge says FBI’s evidence for searching Mar-a-Lago is ‘reliable’ The new order underlines the historic significance of a typically secret part of the criminal investigative process. https://www.politico.com/news/2022/08... #trump #fbiSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Monday, August 22, 2022. It's a little after 4 o'clock in the afternoon here on the east coast of the United States. Judge Bruce Reinhart, who is the federal magistrate judge who signed the search warrant that authorized 50 FBI agents to enter former President Trump's Florida home two weeks ago today, has issued an opinion and an order in which he summarized what he did and summarized without being specific what he concluded. And then at the end of the order, directed that the government take the affidavit, which was originally submitted to him before he signed the search warrant, remove identifiers from it, and release the rest. In doing this, the judge characterized the evidence against former President Trump as reliable. Now, that sounds like it's a big deal. It has to have been reliable, or he couldn't have relied on it. He had nothing before him

except the affidavit and the Q&A that he had with the FBI agent who signed the affidavit. And if he didn't find it reliable, then he shouldn't have signed the warrant. So calling the evidence that was presented to him reliable is a bit redundant, although it sounds profound because the evidence is in two categories. One, that it is more likely than not that a crime was committed, and two, that it is more likely than not that there is evidence of that crime in the place to be searched, Trump's house, or the persons or things to be seized, documents in the house. So how much of the affidavit is he going to release? Well, the government is probably

haggling with him now over what to release. So you may say, well, look, if Johnny Jones or Susie Smith blew a whistle on Trump, and one of them's an undercover FBI agent who got himself hired by Mar-a-Lago, and the other is a housekeeper at Mar-a-Lago, why don't they just keep their names out? Well, of course, they'll keep their names out. But the government must keep out all identifiers, not just the proper name, but what the person is and even to an extent how the person knows what they know. Otherwise, that person could be identified by the former president. Let's face it, it's the target of a criminal prosecution. It is the target of a criminal prosecution, is the target of a criminal investigation. It's not a prosecution until they, or less than until they indict. Or with the help of his employees and staff there could help him figure out who it is. The government believes it has a duty to protect the identity of its witnesses, and it certainly wants to protect

its sources. I mean, suppose the government has been listening to the former president's phone calls, or suppose the government has someone who overheard him saying, yeah, I got top secret stuff in my safe. That would be profound evidence, but the government doesn't want the judge to reveal that the government told that to the judge because it doesn't want the Trump lawyers and investigators to figure out who overheard that conversation because they don't want any pressure to be put on that person to say something different. The government is fastidious, you might even say fanatical, about protecting its sources and its methods. And in the arguments made before Judge Reinhart,

it kept emphasizing in writing and orally in the courtroom that it must protect its sources and methods. The judge is a former prosecutor and a former criminal defense lawyer. He understands how these things work. Now, earlier today, I commented that Trump's lawyers in wanting a special master, a retired or former judge, to examine all the documents and decide which are personal and not within the scope of the search warrant, which are attorney-client privilege or executive privilege and not within the scope of the search warrant, which are evidence of crimes and are within the scope of the search warrant. I gave the opinion that filing an application for a special master now is too little too late. And of course, I stick by that opinion.

But one of you has asked, or several of you have asked some very good questions. The lawyers were not allowed to watch the FBI as they went about the house. So how do they know what was taken? Well, they don't have to know what was taken. First of all, President Trump and his family watched the search through the Mar-a-Lago closed circuit security system. They watched it from New York where the president was preparing for a deposition in another case. And secondly, one of Trump's in-house lawyers was there. They just didn't let her watch. But at the end of the search, they gave her a receipt for what they took.

If Trump's lawyers had been on the ball, they would have taken that receipt and filed it immediately with the judge who signed the search warrant and said, we want a special master appointed because in here we know our items outside the scope of the search warrant, our personal items, our attorney-client privileged items. Right now, it's too late because the government has already gone through every single one of those documents. Of course, the government has copies of everything. At some point, it will return the originals unless the originals are going to be used in a criminal prosecution. If there's a trial of Donald Trump and the government is going to accuse him of possessing

original documents that the law prohibited him from possessing them, the government is going to have to present those documents in court. Filing for a special master now is moot. It's too little, too late. You can't unring the bell. If there are things in there that are personal to Donald Trump, and there probably are, if there are things in there that are protected by the attorney-client privilege, and there may be, if there are things in there that are protected by executive privilege, I doubt it, because the courts have ruled generally that executive privilege ends when you leave office. Whatever it is, the government has seen it, the government has it, and the government's analyzed it. You know, even if some of these things were unlawfully taken, they can't be used in any criminal prosecution. The government's already read them.

You can't unring the bell. The government already knows what's in there. that this evidence probably has some words coming out of the mouth of the former president, which is why it's been characterized as reliable. I suspect that either someone overheard or surveillance overheard the president saying, former president saying that he has top secret materials in his safe. Knowing the president's personality and penchant for speaking in confidence to people when at times it's not in confidence, that's just my guess. Or as we get it, Judge Napolitano for judging freedom. you