Judging Freedom - Special Master Tells Trump Team - Back Up Privilege Claims

Episode Date: October 19, 2022

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, October 19th, 2022. It's about New York, over the documents that were seized by the FBI from the home of former President Donald Trump. Wait a minute, they were seized in Florida, the cases in Florida. Why were they in Brooklyn? A good question. Please remember that at the application and request of the former president, the federal judge in Florida to whom his challenge of the FBI search was assigned, Judge Aileen Cannon, granted Trump's request for the appointment of a special master. Inexplicably, she appointed another federal judge, same rank and level that she is, and asked him to be the special master. The special master's job, and this federal judge sits in Brooklyn, New York. That's why this argument I'm going to recount for you in a minute took place in a federal courtroom in Brooklyn, New York. The special master, Judge Raymond Deary,

D-E-A-R-I-E, agreed to review the documents that were seized by the FBI, minus the top secret ones, because the federal appeals court ruled that the DOJ does not have to surrender the top secret documents to Judge Deary, who has a top secret security clearance himself. Not all federal judges do, but he does. Or to Trump's lawyers who do not have top secret security clearances. Or to Trump himself, who once had a top secret security clearance but no longer does. The documents minus the ones that are indisputably top secret because they contain national defense secrets are to be reviewed by the special master. And he's going to decide which are privileged, attorney-client privilege, truly personal,

like tax returns, executive privilege, communications between the president while he was president and other members of the executive branch. Those are the three areas of privilege, personal attorney client, Trump talking to his lawyers or executive privilege. Yesterday, Judge Deary berated for the second time Trump's lawyers saying, where's the beef? You have this list of 22,000 pages of documents. Where are the ones that you say are personal, attorney, client, executive privilege. You've got to tell me which ones they are so that I know which one you claim I should prevent the DOJ from looking at and order returned to your client. Where's the beef, he said. Now, I don't know why former President Trump's lawyers have not done this unless there's nothing in there in either of those three

categories. And therefore, there's nothing that they can say is personal attorney, client, or executive privilege. Remember, when lawyers make this representation, they have to have a good faith basis for making it. They can't just say something off the top of their heads. Otherwise, they can lose their license to practice law. And when lawyers sign an affidavit swearing, this is personal, this is executive privilege, this is attorney-client privilege, I may be getting my fingers mixed up here, but you get the point. If they say it in an affidavit, then they've sworn it to be true. And if it's not true, then they have a serious issue of filing a false document and making a material

misrepresentation to the government. So you can come to your own conclusions as to why they haven't done this yet, but Judge Deary has given them one more round to do it. Otherwise, his role as the special master, which you know I argued against saying it was too little too late, and which, as you know, is before the 11th Circuit Court of Appeals. The DOJ has appealed the decision even to appoint Judge Deary, even though he seems to be not what the Trump people expected. It would render his job moot and needless and useless if there are no documents in there in any of those three categories. If there are, Trump's lawyers need to identify them. If they're not, special master's job is over. That's pretty much what he said yesterday. Judge Napolitano for judging freedom.