Judging Freedom - Trump Gets a Special Master

Episode Date: September 5, 2022

Judge authorizes special master to review Trump Mar-a-Lago raid documents, temporarily blocks DOJ using records for probe https://storage.courtlistener.com/rec... #Trump #fbi #SpecialMasterSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu. Hi, everyone. Judge Andrew Napolitano here. Today is Monday, May 5th, excuse me, September 5th, 2022, Labor Day in the United States of America. It's about 1.20 in the afternoon here on the east coast of the United States. This is a special breaking news holiday edition of Judging Freedom

because just about 15 minutes ago, Judge Eileen Cannon, the federal judge in South Florida to whom the application filed by former President Donald Trump to appoint a special master in his case ruled, and she has indicated she will appoint a special master. She hasn't done so yet because of the great difficulty in finding a person to fit that role, about which more in just a moment. So Judge Cannon is not the judge who signed the search warrant. The better practice is to have the same judge handle all matters. But apparently in the federal courts in Florida, these assignments are handed out on a wheel, meaning whoever is up next gets the assignment. And the next assignment, whatever it might have been, was due to go to Judge Cannon

when President Trump's lawyers filed this application. Just by way of background, the initial application was so deficient, she didn't even file it. She sent it back to them and said, follow the rules and file a real application for a special master. The first one read like one of the former president's stump speeches. The second one, written by different lawyers and devoid of the former president's stump speeches, made the arguments that the government cannot be trusted to weed out of the materials that were taken from the former president's home, matters of attorney-client privilege, communications between the former president and his lawyers, one of whom is in-house at Mar-a-Lago, matters of executive privilege, communications that the president had, former president had, while he was still president, personal items that are not evidence at all. And then, of course,

the remainder is what the government believes evidence of a crime. The government told Judge Cannon that it appointed a filter team, which is what it does in these cases. The filter team is federal prosecutors, but not the team that will prosecute the case that did follow the rules, the one that did not have the jargon from the former president's stump speeches in it, the FBI and the Department of Justice sent over to the director of national intelligence for her people to assess the information in there. And if there was any harm to the country by them not being secured in the possession of Donald Trump at his country club, not at his home at his country club, though they did find some documents in his personal quarters in the country club. So the government said, as you've heard me say, that the application for a special master is too little, too late. Today, the judge rejected the government

arguments, and she said she is not satisfied that a special master can't do his job or her job. And she's not satisfied that the filter team at the Department of Justice would be fair to the former president. Stated differently, she doesn't believe the federal prosecutors. And she thinks that some matters of attorney-client privilege or executive privilege may have made their way past the filter team. So where does this go from here? I expect that the feds will appeal this decision within hours and that the 11th Circuit Court of Appeals, which sits in Atlanta, will enjoin it. This is an amateur decision written by a federal judge using the appropriate jargon. But there's too much language in there about her personal evaluation of the believability of the lawyers before her, which is not the role of the federal judge here. The lawyers are not testifying.

They're just making legal arguments. Secondly, she has enjoined, stopped the prosecutors from conducting any part of the investigation that relies on what they obtained from the president's home. That is a violation of the separation of powers. That is the judicial branch interfering with the executive branch. The remedy is for her or whoever the trial judge is, if Trump is indicted and there is a trial, to bar the use of the documents at trial. But judges are without authority to bar the use of the documents during the investigation preceding trial without violating the separation of powers, the judicial branch trampling on the inherent core rights of the executive branch. So we don't know where this will go. Looking at it from President Trump's point of view,

this will delay the investigation for however long it takes the special master to go through these documents. The court today ordered both sides, the feds and Trump's lawyers, to come up with a list of potential special masters to see if there's any one name that's on both lists. It will be difficult to find a special master. The special master needs to be a very experienced criminal litigator, a former federal prosecutor, or a former federal judge, or a former state judge who has a top secret security clearance. That's going to be very, very difficult for Judge Cannon, for the DOJ, and for Trump lawyers to find and agree on. We'll see where it goes. Perhaps when I next speak to you tomorrow morning at this time, the 11th Circuit may have gotten involved,

or if not, we'll know more about it. More as we get it. Judge Napolitano for judging freedom. With courses available online 24-7 and monthly start dates, WGU offers maximum flexibility so you can focus on your future. Learn more at wgu.edu.