Judging Freedom - Trump & the DOJ today

Episode Date: September 19, 2022

DOJ motion for a partial stay pending appeal https://www.documentcloud.org/documents/22418142-22-13005-doj-motion-for-a-partial-stay-pending-appeal #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 Monday, September 19, 2022. It's about 3.35, 3.40 in the afternoon here on the east coast of the United States. I was off for a few days. I performed the wedding of the daughter of a dear friend of mine. The daughter graduated first in her class at Johns Hopkins and is fluent in Russian, Chinese, and Arabic, and her husband graduated first in his class at West Point and is also fluent in Russian, Chinese, and Arabic, and her husband graduated first in his class at West Point and is also

fluent in Russian, Chinese, and Arabic, and they both are in the Army. They're both captains in the Army. It was a beautiful experience on an island, Long Beach Island, which is a string bean-shaped island about six miles off the coast of New Jersey, about 25 or 30 miles north of Atlantic City. Anyway, it consumed my time for the past three days. Not much happened in our continuing efforts to follow the criminal investigation of former President Donald Trump's possession of national defense secrets, which came to a head or came to the public's attention when Trump publicized the FBI executing a search warrant at his home in Mar-a-Lago now a month ago. But the most recent state of affairs is this. On Friday afternoon,

Judge Aileen Cannon, the federal judge to whom the case has been assigned. The case is Trump's lawsuit against the federal government seeking the appointment of a special master, a retired judge, or a well-respected lawyer to be an intermediary between the FBI with its documents and the DOJ and their ability to view and use the documents. This judge, Judge Cannon, appointed a special master and denied the application of the Justice Department to modify her order. What in the order did the Justice Department want modified? Two very unusual aspects of the order, the likes of which I have never seen in my 45 years as a lawyer, eight of them as a judge. and using as investigatory tools documents which the government has already received from Trump. Both the documents that Trump voluntarily surrendered and the documents which the FBI took pursuant to a valid search warrant. She's prohibited the government, the prosecutors, from using those documents, excuse me, until after the special master looks at them. The second thing she did was to order that those documents be made available to Trump's lawyers.

Now, the Justice Department can't do that unless Trump's lawyers have a top-secret security clearance, which as far as I know, they don't have. These orders of Judge Cannon are bizarre because they are basically the – remember, we have three branches of government, executive, the president, legislative, Congress, judicial courts. This is the judicial branch of the government preventing the executive from doing its job. So if Trump were indicted and tried in Judge Cannon's court, and she felt that the documents were obtained unlawfully, or there were some shenanigans involved in the FBI getting the documents, that's when she would prevent the government from using them. But Trump hasn't been indicted. This is a criminal investigation. It is exclusively in the purview of the executive branch for the judiciary to intercede in that investigation.

So you've got to share these documents with the person you haven't even indicted. You've got to share these documents with the person you haven't even indicted. You've got to share these documents with the person who voluntarily gave them to you. Remember, there's 100 documents in the NDI, National Defense Information category, that Trump voluntarily returned. improper and unconstitutional intrusion by the judicial branch into the core functions of the executive branch, which is enforcing criminal laws. So I don't know where this is going to go. The DOJ, of course, was not happy with the appointment of a special master, even though they agreed to the person she appointed. More about that in a minute. And the DOJ certainly was not happy with her refusal to let them use, examine, talk about, have the Intelligence Committee examine the documents that they obtained from Trump, both voluntarily and involuntarily.

So the DOJ filed an emergency appeal, not one of those long appeals that takes months, but an emergency appeal that will probably be heard in a couple of days before the United States Court of Appeals for the 11th Circuit in Atlanta sits in its headquarters, and it is in Atlanta. It sits in Georgia and in Florida, and it hears appeals from the decisions of federal judges in Georgia and in Florida. I expect that the 11th Circuit will hear the appeal very soon. Normally, emergency appeals, there's no oral argument. Normally, because of the side that has made the application, that has filed the appeal, claims that it's an emergency. The courts usually accept that unless it's patently not the case. And so they don't wait for oral argument. They rule on the basis of the papers. I would expect a ruling this week, and I would expect that Judge Cannon will be

reversed because it is a violation of the separation of powers for the judicial branch to tell the executive branch how to do its job. Remember, this is not Judge Cannon conducting a trial saying, I'm not letting this document being shown to the jury because you obtained it unconstitutionally, DOJ. She can do that. That's her job. But for her to say, I'm not letting you look at this document without saying why is a violation. And without having seen the document itself, it's a violation of separation of powers. Now, about Judge Deary, Judge Raymond Deary, whom I've known since I was in college, is a federal district court judge, just like Judge Cannon. They are the same rank and level. He's semi-retired, meaning he's on senior status.

A federal judge on senior status has all the authority of a regular federal judge, has the office, has the courtroom, has the staff, does not hear criminal cases, and usually hears a lighter load. Often judges on senior status are there because they're senior. I'm 72. I don't know. I didn't look it up how old Judge Deary is. He's probably 10 years older than I am. It is bizarre for two federal judges of the same level, Judge Cannon in Florida, Judge Deary in New York, same level, same authority, both Article III judges, meaning appointed by a president, confirmed by the Senate, Cannon by President Trump, confirmed by the Senate, Judge Deary by President Reagan, confirmed by the Senate, Same level of authority. It is unusual for

one of them to say, you're going to become my assistant. You're going to advise me. I don't want to take the time to look through these 13,000 documents myself. You're going to look at them, and then you'll advise me as to what you think I should do. And I may accept your advice or reject it. I've never heard of two judges of the same rank and level having that relationship. I've heard, and I myself have appointed special masters to do things like look at these 13,000 pages of documents. I don't have the time to do it and advise me, but I wouldn't appoint another judge who's the same rank and level as I am. That judge would say, Judge DePauw, don't go take a hike. I don't work for you. But Judge Deary, big hearted soul that he is,

decided he will work for another judge who's the same rank and level that he is. It's unheard of and it's unusual. It's not unlawful. It just, as far as I know, hasn't happened before. Or if it has, it's not in a case that's very well known. So Judge Deary has two months until the middle of November to review the 13,000 documents. Four piles, attorney-client, executive privilege, serious national security, personal. Attorney client, if Judge Cannon agrees, remember Judge Deary can't rule, can only recommend, crazy for a federal judge, but that's the position that she has put him in and he's accepted.

So Judge Deary would recommend send the personal back, send the attorney client privilege back. I don't know what he's going to do on executive privilege. Executive privilege has to be ruled on by the judge who has the case, not by the assistant judge from New York that she's appointed. On the serious stuff, stuff, the possession of which is criminal, he'll tell her and he knows what it is. He had and may still have a national security clearance. Federal judges don't have it automatically. He has it because he sat on the FISA court. That's the Foreign Intelligence Surveillance Court, which only deals with the

nation's secrets. So in order to get on that court, you have to have the top secret security clearance, which allows you in the FISA courthouse, not in your courthouse in Brooklyn, where Judge Deary sits, not on his kitchen table at night, but in a secure federal facility, it would allow him to look at that stuff. Judge Cannon doesn't have a top security clearance. That's why she can't look at these. The Trump lawyers don't have a top security clearance. That's why they can't look at them. Many of the FBI agents who sees these documents

don't have top secret security clearances. They couldn't look at them. The person who's leading the investigation of President Trump does have a top secret security clearance. Jay Bratt, B-R-A-T-T, he can look at them. His team of lawyers have the top secret security clearance. They can look at them. So that's where we are now.

Do these appellate judges in Atlanta have them? Probably not, unless one of them was assigned to the FISA court and he or she kept that clearance. But they won't be looking at the documents. They'll just be deciding who gets to look at the documents. That's where it stands. If you're upset by this ruling, don't be. It's a rain delay in a baseball game. If you think this is a great victory for Trump, don't think it is, because Judge Deary is not

an outlier. Judge Deary is a mainstream person who knows a top secret document and an attorney client privilege document when he sees one. His rulings will be right down the middle. Judge Cannon, she's made a number of rookie mistakes. I wish she would stop making them. More as we get it. Judge Napolitano for Judging Freedom.