Judging Freedom - Trump lawyers reject DOJ Arguments

Episode Date: September 12, 2022

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Save $80 with code SPACE80 at Talkspace.com. Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, September 12, 2022. It's about 4 o'clock in the moment in the effort to examine and use the documents seized from the home of former President Donald Trump by the FBI. Right now, those documents are still in the possession of the FBI, but the federal judge's order, Judge Cannon's order, that the government can't use them, a misleading word by use them. Can they talk about them? Can they ask people questions about them? They've already seen them. Are they supposed to pretend they haven't seen them anyway? The issue of using them is back

before the judge because the government has done several things. It has appealed her decision to appoint a special master. It has filed that appeal with the United States Court of Appeals for the 11th Circuit in Atlanta, which has jurisdiction over federal judges in Georgia and in Florida. That appeal is pending. It probably won't be heard for three or four weeks. The government hasn't even had a chance to file its papers in support of the appeal. It just filed what we call a notice of appeal, which is just one paragraph saying, we hereby appeal. They have a schedule by which they must file all their arguments, and that will trigger

a time for President Trump's lawyers to file their arguments. And then the court will either rule in the papers or will invite the lawyers to come to Atlanta for oral argument and rule shortly thereafter. That process, in my opinion, which normally takes a year or so, will probably take about a month. In the meantime, the government has also moved back before Judge Cannon to modify her order that they can't use the documents so that they can use the documents that contain national defense information because both the FBI, National Security Division, and the intelligence community needs to be able to examine those documents and interact with each other and determine whether or not any of the information in them has made its way out of them. That application is back before Judge Cannon. President Trump's lawyers have until Friday to reply to it. They replied today. So I think she's

going to rule probably in the next two or three days about whether or not she'll modify her order. Now she's a rookie judge. Hint, you'll stand a stronger position in the appellate court, Judge Cannon, if you do modify the order, if you do show some sensitivity to the needs of the government. It is unheard of for a federal judge to stop the executive branch from conducting a criminal investigation. Not only is unheard of, it's unconstitutional. That's why it's unheard of. But showing some sensitivity to the immediate needs of the government, they say these documents are hot, that they're top secret, that they contain national defense information, and they need to know now if that information has been leaked will enhance your standing with the appellate courts that review your work.

She doesn't need this advice from me, but it's just free advice, freely given in the interest of bringing this to a head. Is the decision to appoint a special master of victory for the former president? It is, but it's more like a rain delay in a baseball game that he is losing. Losing because the evidence against him is overwhelming. He's admitted to having the documents. He knows that they contain national defense information. His lawyers lied to the DOJ about whether he had returned the documents. He didn't return them when the government asked for them. In fact, he hid them. That's all the government has to prove, and we know that already. God only knows what we'll find out when those documents are presented in court.

Another problem with Judge Cannon is she's ordered the government to stop using documents that she hasn't seen. An experienced judge would say, let me see the documents. I want to look at them. I want to see if they're as hot as you say they are. If they are, I'm going to give them back to you and let you and your national security teams examine them. If they're not, I'm going to give them to the special master. Maybe she'll do that by Friday. Judge Napolitano for judging freedom.