Judging Freedom - Trump Team resists Special Master’s request

Episode Date: September 20, 2022

Trump team resists special master’s request to explain declassification of Mar-a-Lago documents https://thehill.com/policy/national-s... #TRUMP #TRUMP2024 #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 Tuesday, September 20th, 2022. It's about 1135 in the morning here on the east coast of the United States. Also on the east coast of the United States, the former president's lawyers and the Department of Justice lawyers are being kept quite busy today. We'll start with Atlanta, where the 11th Circuit Court of Appeals sits and where a former president, Donald Trump's legal briefs in opposition to the appeal filed by the DOJ are due at noon today, just 25 minutes from now. What's being appealed? The decision of Judge Aileen Cannon to appoint a special master is being appealed. Her decision prohibiting the government from using the documents it voluntarily received from Donald Trump and which it seized from him is being appealed. And her decision

ordering her to share these documents with people who don't have top secret security clearances, former President Trump's lawyers, is being appealed. So there are three issues before the 11th Circuit Court of Appeals. The government which filed the appeal filed its application, all 153 pages of it, in support of the appeal on Sunday. Trump's lawyers' opposition to the appeal or appeals, since we know there are three of them, are due today at noon. I don't think there's going to be oral argument because this is an emergency appeal. This is not an appeal of a case that's already over. And normally when there's an emergency appeal, sometimes called an emergent appeal, there is rarely oral argument, meaning the appellate judges, they sit in groups of three, the appellate judges will decide this emergent appeal on the basis of the documents filed in support of the appeal and the documents filed against the appeal. So that's one issue occupying one part of the former president's lawyers and lawyers from the DOJ. Occupying another part of those two legal

teams is up here in the Northeast, where in a federal courtroom in Brooklyn, lawyers for former President Trump and lawyers for the Department of Justice will be meeting with Judge Raymond Deary, who is, hey, he is a senior judge, meaning semi-retired, still sitting, still with the authority of a judge, reduced caseload, appointed as special master by Judge Aileen Cannon, the judge whose decisions are being appealed in Atlanta. And Judge Deary in Brooklyn, New York, in his courtroom, in the federal courthouse in downtown Brooklyn, will be meeting with lawyers for Trump and lawyers for the DOJ. Expect clashes. Not between the lawyers for Trump and the lawyers for the DOJ, but between the lawyers for former President Trump and Judge Deary himself. Why do I say expect clashes? Well,

Judge Deary ordered the Trump lawyers to have the former president state under oath how, when, where, and by what means he declassified the documents that he took with him. How do we know he did that? Well, we don't. We only know that he said he did it. Most people don't believe him because the process for declassification requires notification of so many people, and all of those people who would have been notified all said publicly that they weren't notified. Anyway, the president's lawyers have refused the instruction of the special master, probably because there was no declassification. If Trump certifies under oath that he did declassify and he didn't, he can then be charged with perjury. If Trump fails to certify under oath that he declassified, then the perception will be that there was no declassification.

There is no executive privilege. And the only thing for the special master to look for is attorney client privilege and personal documents. The special master has until November 30th to provide his report to Judge Cannon. The Trump lawyers are already complaining he's moving too fast. He intends to get his work done sufficiently in advance of November 30th so he can have a written report to Judge Cannon by that date. The whole thing is bizarre. Bizarre because sitting judges are normally not special masters to other judges. If Judge Cannon wants to toss this case to Judge Deary, then she can't have it as well. We don't have two judges ruling on the same case

at the trial level in America. We only have one. Judge Deary and Judge Cannon are the same rank and level. She can't overrule him. It's odd that one federal judge is working as sort of an assistant to another federal judge and just recommending to her rather than ruling. But in the process of recommending, he will make some rulings like, either you guys have your client, the former president, tell me under oath when, where, and how he declassified these documents, or I will rule that they are not classified. This is not something the Trump lawyers who suggested Judge Deary's name and the DOJ went along with it want to hear. So that's where we stand today. I think I'm going to be back in front of this camera again later today after Judge Deary meets with Trump's lawyers and the DOJ lawyers in about 20 minutes

and after Trump's lawyers file their brief in the Court of Appeals in Atlanta in about 20 minutes. More as we get it. Judge Napolitano for Judging Freedom.