Judging Freedom - Trump Case Latest

Episode Date: September 22, 2022

DOJ can resume criminal probe of classified documents from Mar-a-Lago, appeals court says https://www.cnn.com/2022/09/21/politics/appeals-court-mar-a-lago-criminal-classified-documents/index.html #Trump #dojSee 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 Thursday, September 22, 2022. It's about 11.15 in the morning here on the east coast of the United States. Last night at about 8.30 in the evening, I sat here and summarized for the Judging Freedom audience the decision by the United States Court of Appeals for the 11th Circuit reversing the decision of Judge Aileen Cannon, who sits in the Southern District of New York, a three-judge panel of appellate judges reversing a single federal trial judge. And I did so on the basis of my having read and studied the 29-page opinion that the three judges issued. I thought I would supplement that with some thoughts today. The decision last night reversing Judge Cannon was not a decision on the merits of the appointment of a special master. The government has appealed that, but that is another appeal. The decision last night was on the basis of the government's emergency appeal,

and the government asked the appellate court to look at just three issues. One, can the government use and examine and discuss the documents it seized from the former president's home that were either marked classified or which obviously contained national defense information. Two, here's my Chris. There you are, Chris. There you go. There you go, Chris. All right. Camera hog. Two, must the government share with former President Trump and his lawyers those same documents? Three, must the government share those same documents with the special master, federal judge Raymond Deary? The government won on all three of those points. It also won on a fourth point, which strictly speaking was not on appeal. So first, the appellate court ruled that a trial judge effectively cannot interfere with a criminal investigation. Trial judges decide what evidence a jury hears in their courtroom.

That's what trial judges do. But trial judges who are in the judicial branch cannot stop the executive branch from ordinary and traditional law enforcement barring extreme circumstances, and this is not one of those circumstances. So Judge Cannon was outside of her lane, a phrase that I and others have used to describe her opinion, preventing the government from looking at these documents. She used the word use, may not use the documents. Judge Cannon was outside of her lane and was wrong to deny the government the ability to use the documents. Second ruling was the one that wasn't strictly before the court. I make it the second because from it, the third and the fourth flow naturally. The second ruling was that there is no legal basis for the president, the former president,

to have had these documents. He has no possessory interest in them, a fancy legal phrase meaning he doesn't own them, and they are the property of the United States government. Now, that's what's known as the law of the case, meaning whatever judge, if Trump is indicted, whatever judge hears the case, whether it's Judge Cannon, if he's indicted in Florida, or whether it's another judge, Chris, whether it's another judge, if he is indicted elsewhere, say in Washington, D.C., the law of the case is, that is the rule that the trial judges will have to follow and on which the prosecutors can rely is that President Trump does not own the documents they belong to the government, whether they're classified or not. From that it follows, the other two rulings of Judge Cannon are also reversed. They are not going to be shared with President Trump's lawyers because he's not getting back his own property and President Trump's lawyers do not have top secret security clearances and they're not going

to be shared with the special master because the government owns the property and there's no reason for the special master to go through them. The 11th Circuit did not get into whether or not the special master has a top secret security clearance. He is a sitting federal judge who once sat on the FISA court, the Foreign Intelligence Surveillance Court. In order to get on that court, he'd have to have the top secret security clearance. So he once had it, but he hasn't been on the FISA court in a number of years.

I don't know if he still has it, but it's moot after the decision yesterday. The DOJ is not going to share the documents with him. And before that decision came down, Judge Deary said he didn't want to go through them because he too believed that the president, the former president, had no possessory interest in them, that they belonged to the federal government. The decision by the United States Court of Appeals for the 11th Circuit has been met with almost universal approval in the legal world and so far as I can tell in the judicial world as well. The decision by Judge Cannon was so far afield from what federal judges normally do that conservatives, liberals, progressives, and libert types criticized her for interfering with a criminal prosecution in a way, Chris is still wanting to get in front of the camera here, in a way that federal judges ought not to do. So what happens now? Hopefully she'll be a little chastened and her rulings will be a little bit more mainstream.

If not, if this keeps happening, well, the 11th Circuit can take the case away from her. The DOJ could take the case away from her, too, by indicting Trump somewhere else. If the DOJ is going to allege a conspiracy to take documents that he didn't have the right to take. And the conspiracy began while he was in D.C. Then it could theoretically present this to a grand jury in D.C., which it's already impaneled. And they asked them to indict him. If he's indicted in D.C., Judge Cannon is off the case. Wow. Now Chris has calmed down. More as we get it. Judge Napolitano for judging freedom.