Legal AF by MeidasTouch - Top Legal Experts REACT to midweek legal BOMBSHELLS - Legal AF 8/17/22

Episode Date: August 18, 2022

The Midweek Edition of the top-rated news podcast, LegalAF x MeidasTouch, is back for another hard-hitting look in “real time” at this week’s most consequential developments at the intersection of law and politics. On this episode, co-anchors Michael Popok and Karen Friedman Agnifilo, are joined by national security and intelligence community expert Dr. Nicholas Rostow, and discuss: Trump’s ‘defenses’ to having mishandled 15 boxes of government documents including those involving the national defense; the DOJ’s motion to prevent the unsealing of the Trump search warrant affidavit because it would reveal the roadmap of its criminal investigation against him and put informants and law enforcement in harm’s way; a possible plea deal for Trump’s former CFO Allen Weisselberg for tax evasion and what it means for the criminal case against the Trump Organization and possibly Trump himself; the Fulton County (Atlanta) Georgia prosecutor informing Giuliani before he testifies this week that he is a “target” of the grand jury’s work meaning an indictment could be imminent; and Lindsey Graham losing in his bid to avoid testifying to the same grand jury. DEALS FROM OUR SPONSORS: https://www.aspiration.com/LEGALAF Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 Zoomed In: https://pod.link/1580828633 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of Legal AF with your regular co-anchors, Michael Popock and Karen Friedman Agnifalo. And boy, do we have a lot to talk about this week. We're going to do it all. We're going to start with Alan Weiselberg, the CFO for the Trump Organization who looks like he's going to cut a deal and plead, be convicted, go to jail for some time, but not have to go to trial on the 15 counts of conspiracy to commit tax fraud that's currently pending against the Trump organization.

We're going to talk about that. I'm going to do most of the talking, but Karen has some interesting opinions about the plea deal that she can talk about having left sort of recently the Manhattan DA's office itself. We're going to go from New York all the way down to Atlanta for Fulton County to talk about Fawni Willis and the progress of her special grand jury, specifically in two ways. One that Rudy Giuliani not only has to testify, and that's going to happen this week that's so ordered by the chief judge of Fulton County, but he's now been informed as his council been informed that he is a target,

meaning he is likely to be indicted by the special grand jury, at least recommended for indictment by the special grand jury. And so that's good news. And in the world of thinking people that Rudy Giuliani is looking down the barrel of an indictment. Lindsey Graham who tried hard and rushed off to federal court to try to prevent his testimony before that same grand jury, he lost that bet. And he's been ordered to appear in addition in August before the same grand jury. And that's where we are with Faudi Wells. We'll talk more about it on this podcast. That, of course, we're going to end it with the Trump search warrant and the aftermath of it and the motion practice related to it. And for that, we are joined by a very special guest, Nicholas Rostow, who is a preeminent national security expert. He's been in administrations. He's been, he worked for two presidents. He's worked

for the Senate. He is, he is, by far, a blue ribbon member of the national security world. And he will give his, his, his excellent developed opinions about what transpired with Trump. What was he thinking about taking those 15 boxes? And then we'll talk about the statutes that are implicated by the search warrant. And does it really matter whether any of these things are classified or not classified the way the statutes are written? And we'll comment on that. So Karen, it's time.

It's that time where you and I get to Commune for an hour or so on a Wednesday about all things legal and political. How are you? I'm good. Thank God you got back from vacation just in time, Popak. Every time I go away, our ratings go up by the way. I just want to make that clear to the suits. I went away last summer. They were like, oh, you can't. What are we gonna? How? And I think the ratings like doubled while I was away and then continued from there. I need to go away in order for this show to succeed. That's what I've learned, although we've had a great

way of this. But it's like you were away and the world came to an end, you know? Yeah, all the things that Ben and I and you have been talking about for the last year all happened and popped at the same time while I was away. But I'm here, I'm back. I'm back. Ben and I hosted last Saturday and you and popped at the same time while I was away. But I'm here. I'm back. I'm back. Ben and I, Ben and I hosted last Saturday and you and I are back where we are on Wednesday.

Let's talk about Aaron something here and dear to your heart and you'll pick through the mind field of things you can talk about things you can't. Let me first update the listeners and followers about Alan Weiselberg, the 30 year plus chief financial officer, the only chief financial officer, Trump is ever known for the Trump organization. So if anybody knows where the bodies are buried, it's going to be Alan Weiselberg, which is why Sy Vance, your old boss, you were his number two, decided to try to pinch people like Alan Weiselberg and Matt Colomari and all these other people within this organization who

did not have the Trump last name to try to roll over onto Trump. Unfortunately, like a good mob, none of them rolled over despite indictments, despite looking down the barrel of, you know, 15 years or more if he got convicted. Weiselberg decided that it was in his best interest not to turn on Trump. And so he was going to trial. He moved to dismiss his indictment. It sat around for eight months or nine months. The hearing was last week. And as we reported on legal AF, Mr Weiselberg lost his motion to dismiss. And therefore that case was going to trial in October. And I think he also lost or was about to lose the motion of suppress certain statements that he made while he was in eight hours of interrogation with the Manhattan DA's office and law enforcement.

And so he knew that, you know, things he was running out of moves here. He lost all the moves. And and just to remind everybody, we've been talking about this for 70 episodes or so of like a layoff, the number one witness against Weiselberg and the indictment was his daughter and ex-daughter law, who happened to have boxes and speaking of a boxes at home, she had boxes and boxes and tens of thousands of pages of financial information because she used to work at the Trump Organization too. She just happened to have laying around the house that she turned over to your old office and the investigators and flipped on her ex-father-in-law.

So that's the facts. Now let's get down to what happened here. The reporting is that he's about to cut a deal that could be announced as early as this Thursday in court because the judge is scheduled to hearing. That looks like the leaks have been out there. He's going to take a deal where he's only going to have to serve five months and maybe less than that, maybe three months in jail. And he's not going to cooperate. Now, now we've switched from side-vants, your old boss to Alvin Bragg, who has understandably gotten a lot of flack

in the last year about all things Trump, especially when his two special prosecutors walked off and said, we could have indicted had Alvin Bragg allowed us. And now we've heard nothing about the Trump investigation or the Trump prosecution since those two prosecutors left office. And now you have Alvin Bragg agreeing because obviously it has to go through him to cut a deal if the reports are true with Weiselberg for five months in no cooperation. Why is that Karen former prosecutor? Why did that if that's true? why is that happening? I have no inside information whatsoever on this. I'm reading the same reports you're reading.

But I think that when you look at a case like this, I think Alvin Bragg wants a win in the Trump world and he probably reviewed the facts of the case and he thinks he has a stronger case against the Trump org than Ellen Weiselberg and so get him out of the case and just go forward with the Trump org case. Is what I'm thinking or maybe it could also be that Weiselberg went to him and asked for a plea deal

and a guilty conviction generally speaking for a felony is certainty. And trials have uncertainty. You never know what is going to happen one way or another. So at least this is a conviction, it's certainty, and he can go forward with the remaining case. Let me ask you a question, though, from, and I get, I'm sensitive to your restrictions on being able to talk about things that you worked on. So I'm gonna ask it in a hypothetical.

When you were there for an organization that they're going after criminally, and you got the CFO, would five months be considered around the water cooler at the Manhattan D.A.'s office? Five months prison sentence for the CFO with bigger fish to fry. Would that have been considered a backslap? That's a win high five. Well, it all depends. It depends on how on the situation on a few things. It depends on

the severity of the crime. It also depends on the strength of the evidence. the severity of the crime. It also depends on the strength of the evidence. And, you know, you make these, he also depends on his age. I mean, he's an older gentleman. And so five months to him is different than five months to somebody who's 25 years old. Things like that. I mean, you know, there's lots of factors that go into when you make plea negotiations, but some of it is certainty, some of it is a felony conviction. It's, and I don't think five months at Ryker's Island is gonna be easy for an elderly gentleman.

Well, that's a good point for our followers and listeners. A lot of people joke about club fed and all these low security, minimum security, federal facilities. And there's a whole cottage industry of consultants. Some of them were inside and came out, became consultants. Some of them were just consultants. They try to get a federal defendant into a BOP bureau of prison location of their choice.

Some of them are better than others. If you're kosher, there's better food than others. If you want to be closer to your family, if you don't want to be close to your family, I mean, there's different considerations. But this, in the state system, and in New York, I don't know if anybody in our listeners and followers live in the tri-state area of New York, New Jersey, Connecticut, but Rikers is terrible. You know, it's not Attica, but it's close and it's not, it's not going to be a

fun place for I think a 75 year old to do his time. You have it at the end of being three or four months. Now, now, I know a lot of people are going to say, oh, you know, they didn't get anything out of them. He's not cooperating and they should just, you know, string him from the rafters and go to trial and and all of that. But, but you're right. He could lose. I mean, you know, string him from the rafters and go to trial and and all of that, but, but you're right. He could lose. I mean, you know, so there could be some sympathy on the jury for the guy and and think that he's being hung out to dry by by Trump. And you know, maybe he gets acquitted. And then everybody's like, Oh, why did they try that case? That case was so weak. So I think you're right. You take the win. You take the win. And I mean, like I said, going to going to any jail, you know, we don't know the specifics

of this deal. We don't know if he's going to have to pay a fine. We don't know what the ultimate plea deal is going to be. But whatever it is, there's been some kind of, I'm sure some kind of calculation, get them out of the case and just move forward with with the Trump organization. Let me ask you something because it was an interesting little tidbit and you might know this from your world that you operate in but in June June just two months ago He added Nick Ravante to the team of lawyers. Do you know Nick? I don't and People think that that is what led because Nick's a little bit of a dealmaker

That is what led to the discussions being open about the plea deal the addition of this new lawyer who I'm not sure He was gonna try the case, but he certainly was brought in for a reason in June and here we are in August And now we've got a potential plea deal So again, it's something interesting I would hope for our listeners and followers that just as we saw with Cassidy Hutchinson who changed counsel to somebody who was respectable, to somebody who worked in the administration and worked for Jeff Sessions, and suddenly she was no longer in Trump world, and she was testifying truthfully and courageously against Trump because of that change in counsel, getting better guidance, better counseling.

Maybe that happened here with Alan Weiselberg who kind of been holding out for the last two years or more and not trying to cut a deal. So we have that. You want to move on, Karen, to one of our favorite prosecutors, Fawni Willis, who's the advisor to the special grand jury in Fulton County, who's the advisor to the special grand jury in Fulton County, who's getting really close to bringing indictments against people. Let's talk about her. What did you, what did you make of the fact that it was announced just a few days before Giuliani was compelled to testify in front of the grand jury that he is a,

quote unquote, target, meaning could be criminally indicted. Would you make of that? So at first I thought why did she say he's a target? That's a federal term. That's not really a state term and why did she do it? But when and so it was interesting to me when when I was reading about this whole the whole turn this investigation has taken and I think I know why he was named as a target. I think there's a couple of reasons. So number one, he was subpoenaed to testify before the grand jury.

And if you're a target in Georgia, if you're a target in Georgia, there are certain rules that apply, you should get a lawyer, or at least have an opportunity to consult with one. And so I think that's one of the reasons they told that to him. But I think there's two other reasons that were more significant. Number one is, if you want to subpoena a witness in, like say in New York, if I wanted to subpoena you to testify before the grand jury when I was a prosecutor, I would

hand you a grand jury, Sapina, and that's all I had to do. I don't have to put any facts in it. I don't have to do anything other than Sapina, you to appear before the grand jury to testify. In Atlanta, it's the same if you're a, or it's just in Georgia, it's the same if you're a Georgia citizen or a Georgia resident, but if you're an out of state resident, you can't do that same service. You have to actually apply to the court and ask them to do an out of state subpoena. And in that, you have to make a showing of what exactly it is that you are that you're looking for and why you have to, You have to make a special showing. So I think that's one of the reasons

that he was identified as a target. Because they have to state, they have to state your unnecessary and material witness in order to, that's the legal standard to get an out of state witness. So I think that's one of the reasons. But another reason, I think the main reason he was identified as a target is Giuliani's going to say, you can, you can bring me before the grand jury, but I'm going to say that my statements were attorney

client privileged with Trump. So I'm not going to, I was his lawyer. And so I don't have to tell you anything that we said. But there's something called the crime fraud exception to the attorney client privilege. And I think that's what Fannie Willis is applying here and saying, you guys were co-conspirators. And this was a crime fraud exception to that privilege. And so in order to get to that point and get him to testify,

I think she had to make out and say, look, you're a co-conspirator and you're a target and basically she's saying you're a criminal. So that's what I think and that's why I think she did what she did. The other thing I was reading up, so I was doing a little digging in preparation for this podcast because in New York,

if you were to subpoena someone to testify before the grand jury, they get immunity. They get complete transactional immunity for that crime, not just use immunity where you can't use fruits of the statement. They get complete transactional immunity for the crime. So a prosecutor has to be really careful who they call before the grand jury or right because you can confirm unity on them or They have to wave immunity if they want to go in and testify and that's what defendants who testify in the grand jury You want to tell their side of the story and plead to the plead to the grand jury You know their their story and I was curious to know to see if if Georgia had that same, has that same immunity provision in their grand jury. And I couldn't find anything that said that. So

don't I'm not 100% yeah, I don't think so either. So so again, that those are the, those are the reasons that I think. So let me comment on the three or one of the three. I think you're totally on point with all of them. I think she's got a chief justice, chief judge who's breathing down her neck and policing the whole process. If you recall, we talked about three weeks ago when he sort of wrapped her knuckles with a ruler related to Bert Jones and the fundraiser that she held. And in that, she also reminded everybody and Fannie Willis' team as well, but she's not the prosecutor yet. She is the special advisor to a special grand jury that is issuing a report and recommendation that goes to him. I mean, she was very clear so that the press could hear it. What this process

is in Georgia. And, and you, if you, if you recall, he wrapped her knuckles about using the term target. He's, I don't know why you're using the term target. That's a, like you said, that's a federal term. However, I think she now then goes back to him and says, look, in the abundance of caution and advance of his testimony, I've told him and his lawyers, whether you call it target or something else, that he's not just a witness here, that he could be entited. And he needs to know that before he testifies, because he also needs to know that, because he might want to assert his Fifth Amendment privilege. And so I think we're going to see this struggle at the grand jury level. We're going to see his attempts to assert the Fifth Amendment, which is going to be relatively easy now because she's told him he's a target. So I'm not sure how much

he's going to be able to testify in front of that. And on the attorney client, I think you're exactly right that they'll have to go back to the chief judge every time or at least one time about his testimony and he'll have to make a decision about whether she's properly established that the crime fraud exception eliminates his ability to use the shield of attorney-climbed privilege. So this is going to be between that and the federal judge in the hallway while Jody Heist testifies. I know right.

I mean, this is going to be a lot going on at this at this grand jury next week and this week. And then Lindsey Graham, I'm sure is going to try to pull the same stick where I think it's the same judge is Atlanta, Atlanta federal judge. And he's going to say, I can't answer that, but he's already ruled that listen, your whole legislative thing, legislative privilege, speech and debate. That's not going to work here. We're talking about phone calls that you made, Lindsey Graham, to Brad Raffinsburger, to try to find a way to avoid mail-in balloting.

That's not legislative. That's not speech and debate on the House floor or the Senate floor. So you're gonna have to testify to that. He's, oh, I'm also the highest ranking, whatever I am, and I'm an apex person. And, you know, I, and that didn't fly either. So Lindsey Graham is going to have to talk about ultimately those phone calls that he made and others phone calls that he made on behalf of Trump doing Trump's bidding while he was sitting and wherever he was sitting. So we've got Lindsey Graham testifying and looks like he's got not much to shield or prevent

testimony from coming out of his mouth. And you got Giuliani who's going to still try to do hand-to-hand combat between attorney client privilege and his fifth amendment application. I don't think they're going to get much out of Rudy at the end of the day. He had one, Rudy I did have, I don't know if you caught this, Karen, Rudy did have one bright spot about the Southern District of New York and the Ukrainian investigation. Did you catch that? No.

Yeah, the rumor mill is he's, they're not going to go forward with the prosecution on Southern District that he was a foreign agent working up a half of the Ukrainian ticket rate of the U.S. ambassador. So he had one good thing happen. Southern district that he was a foreign agent working up behalf of the Ukrainians to get rid of the US ambassador So he had one good thing happen. This is where they picked up 18 Electronic devices from him and in his own dog right right a more than a year ago year and a half ago So he might have avoided that one, but it looks like he's in the crosshairs and if he's in the crosshairs in Fulton County What are the odds that Trump will also be indicted? I mean, I don't see how you can indict Giuliani and not

indict Trump, but we'll find out those that will be for future episodes. It's a crazy chess game that everybody's playing, right? But one more comment on Giuliani that is that that could play itself out here. So the whole fifth amendment and attorney client, privilege, assertion, typically happens question by question. And it's not just this overall sure you can, everything's privileged, right? It's each question or each thing. And so one tool that a judge typically has

in their toolbox, there's two tools that they have to compel testimony. One is you can grant the person immunity, the prosecution can grant immunity. So that's one, depending on how important his testimony is, Fannie Willis could do that with Giuliani, or there could be something that the judge rules is not attorney client privileged and orders him to testify. And if he refuses, the tool that the judge has in his toolbox or her toolbox is to hold him in contempt of court and could potentially either put him in jail or find him. You know, we've seen these contempt, these, these contempts

of court and, and, and, and interestingly though, the subpoena, this out of state subpoena, that we, that we just talked about, that you make that special showing that, that he's this important witness that, you know, has to come there, actually specifically in there says that if you come, you will be protected from arrest or service of process and That's to so it's sort of interesting in this game of chess of how that's gonna play out because there aren't too many tools left in the toolbox If the judge can't can't can't hold him in contempt So it's just I it'll be interesting to see if anything it just seems like a toothless So it's just, it'll be interesting to see if anything. It just seems like a toothless show of bringing him there.

He's gonna take this privilege and this fifth and everything else and nothing's gonna come of it. And hopefully Fani will move forward before Trump declares that he's running again. And then nobody will, you know, nobody will touch him with a 20-foot pole, but we'll see. Karen, what if I told you there was a new product out there that can tackle your negative impact on our climate just by using it once a day.

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Our national security expert Nick Rostow is going to walk us through as a spirit guide. What happened in Mar-a-Lago and why it matters or doesn't matter what he took with him, and we'll do that next. And now we're gonna turn to the story there, but he's been waiting for the execution of the search warrant at Mar-a-Lago against the former president. And the resulting defenses that are flying around social media by Trump and by everybody associated with Trump.

They've moved from, well, the 15 boxes, he took it home because he was working on things and when that didn't really fly because he's known for not working on anything. He was one of the laziest presidents we ever had. John Bolton was on CNN today saying exactly that they never could get the guy to pay attention to anything that was important when it related to foreign policy or national security. So he wasn't like taking home work that didn't fly. Then it was, well, I magically declassified everything.

Well, frankly, a that's probably not true. And and our guest, Nick Ross, does gonna talk us through that. And B, it doesn't matter based on the statutes that are implicated by the search warrant, because none of the three statutes, the crimes from the SB&AJ act all the way to the other two, none of them have anything to do with classified documents. It's just national defense documents,

or other types of documents that belong to the government and don't belong to the person that walked them out the door. So that doesn't help him. And then it was a version of, oh, it's stale information. You didn't need to execute the search warrant, but that doesn't matter. That's not the basis of a search warrant. Basis of a search warrant is whether there is probable cause to believe that there's evidence of a crime that's sitting in boxes or evidence in a room. It doesn't matter how long it's been sitting there.

So I heard all these Republicans on Fox News today, because I occasionally listen to that to see what the other side thinks. And they're all like, well, it was so important. Why didn't they move faster? This was sitting on Merrick Garland's desk for who? By the way, that was my artist impression of Republicans talking about Trump, but it doesn't matter. None of this matters. That's why people come to legal a after we want to keep them focused on the facts that they can use that they're armed with at their next cocktail party,

dinner party on the street, lunch, work,. And we've now have the special pleasure and to have somebody join us who I call friend and partner, law partner, Dr. Nicholas Rostow, who is a senior partner with the law firm of Zipano Patricius and Popak. He's also a senior research scholar at Yale Law School and way to you here, his credentials. He's currently the visiting, a visiting professor at Cornell Law School. He was in the past, the university professor and senior director for the Center for Strategic Research at the National Defense University, and that's as big a job as it sounds like. He was general counsel and senior policy advisor to the US permanent representative to the United Nations. He was the Charles H. Stockton chaired international law at the US Naval War College

staff director, Senate select committee on intelligence, counsel and deputy staff director to the House select committee on military commercial concerns with the people's Republic of China. He was special assistant to presidents Reagan and George H. W. Bush for national security affairs. A legal advisor or the legal advisor to the national security council and special assistant to the legal advisor at U.S. Department of State. He's a bestselling author. He currently is writing a book on cybersecurity. This is the person you want to go to when classified or unclassified or documents belonging to the government are in play.

And I couldn't be more pleased to have my little partner and friend Nick Ross. I'll join us Nick. How are you? I'm well. Thank you very much, Michael. Yeah. And just for our listeners and followers to think we have a Republican who's joined us, it's true. He is a Republican and has worked for Republican administrations and has a special claim to fame. He signed not one, but I think three or four separate letters, which were Republican and Democrat members of the national security community who wrote letters of objection to the way that Trump ran for in policy, national security, and everything

else. And if you go to those and we'll post a couple, I will have our producer, Adam Salten, post a couple, you'll see along with a list of dozens and dozens of people with really important names, you'll see another one, Nick Ross down, Nicholas Ross down. So pleased to have you here. So Nick, we laid out what happened. We've we've spent three or four episodes talking about what happened at Mar-a-Lago. You've heard Donald Trump and his minions talk about the defenses to these things.

Let's start from scratch. Why is it important for the national archive to get a catalog of every scrap of paper that comes out of the West Wing or is the positive of the West Wing? Why is the office of the president? Why is that important? Well, it's a matter of law. The current legal regime makes all documents generated in the White House presidential documents, and they belong to the National Archives under the presidential record deck. And presidents may, I suppose, well, that's why their presidential libraries run by the national archives. That's where they are supposed to be. And classified documents are supposed to be maintained in special facilities at those libraries and periodically reviewed for classification, pursuant to the executive orders that govern the classification system.

So it's these aren't personal papers. They're not, they're not the private property of presidents or secretaries of state or anybody else. They used to be in the old days, you know, before. Well, that's interesting. That's interesting. So there was a time when the presidential papers were like momentos, he could just box up on the way out and take with them.

When did that change, Nick? Well, I think it probably, well, first of all, as a statutory matter, it changed with Richard Nixon. And so, after the Nixon presidency and the scandals surrounding Nixon, the Watergate, and so on, prior to that, the law wasn't really so clear and presidents like Franklin Roosevelt, they created a library at Hyde Park, New York, where all his documents are. But the president was Washington's papers were his. The president's papers were his.

And that's why there's no George Washington presidential library. Right. I mean, and trying to answer when Princeton University Press has been publishing, maybe they've finished finally, the papers of Thomas Jefferson, they had to corral them from all over the world, really. And people want to insult them. I mean, Lewis and Clark's journal, what's belonging to the federal government,

but was treated as Lewis and Clark's private property. So the legal situation really changed once the modern presidency became such a big thing. the modern presidency became such a big thing. I mean, after all, Franklin Roosevelt had two or three assistants only. Lincoln had two secretaries. Wooder Wilson wrote his own speeches. I mean, the modern bureaucratic establishment

around the president is really post-World War II. And it's certainly the Nixon presidency which transformed the legal position of all these documents. And the Obama, no, was the Clinton administration, got a judge to say that the Freedom of Information Act did not apply to national security council documents. They were presidential documents because the president's chair of the national security council. You know it's missing. I don't want to hear carrots of you on this. I've heard all of these ridiculous, you know, Trump untruth social about return my passport and, you know, unseal the affidavit. We're going to talk about that next with Karen. But you know, it's missing

from all of this. There's not one explanation by Trump as to why why these 15 boxes with 11 categories of various classifications from classified all the way up to top secret and above top secret, top secret, compartmentalized review only or whatever it is. He's never said, yeah, I wanted to take home the file on the French president, Grun. Why? I wanted to take home, the stuff about Michael Flynn, why? And, and, and Stone, and Stone, why and the other things in there, I mean, I don't know if there's nuclear codes in there or not, but the government does now because they have all the boxes and they're going to be reviewing them and we won't find out about it in a press release or a press conference with Merrick Garland.

We'll find out about it when it's being used in a prosecution or an investigation. That's the way I like my Department of Justice to operate. So that's an interesting thing. I mean, he's got no defense for it like I needed it It was mine. It's not his you just heard Nick Ross down tell you again. It is not his every scrap of paper that's generated is not for citizen Donald Trump. It's for president the office of the it belongs to the office of the president for continuity. Now Nick, before we move on to talk about search for it, talk to me about the classification system since President Truman and whether it matters at all or for you having been kind of invested in the intelligence community, the national security

community for as long as you have, what chill went up your spine when you read the categories of information, at least categorically, if not, if not specifically by page, that was in the 15 boxes sitting behind a relatively easy door to break into in the basement of Mar-a-Lago. What did that do to you? How did that hit you? Well, you know, there are three categories of classified information, top secret, secret confidential. Nuclear secrets, nuclear weapons secrets are governed by statute and totally different.

And the president doesn't carry around the codes. And there's no way that could be part of a box of documents. There he has a military aid who carries around a locked suitcase. And if the balloon goes up, it's all by key. Right. I mean, what were they suggesting? The nuclear football was sitting in the basement of Mar-a-Lago? Yeah.

Yeah. Doesn't happen. So much more interesting question is, where was the nuclear football on January 6th, but leaving that aside, the there are rules about how you need to store classified information. If it's top secret, it's got to be stored in a certain kind of safe, if it's compartmented, especially compartmented or is sensitive compartmented information, SCI, it can't be read in an unsecured room. I mean, a secure room is essentially a room within a room. So it's windowless, it doesn't, it can't be bugged.

It's, and because this is very, very sensitive stuff, goes to how the United States knows what it knows. And when that kind of information gets out, then bad guys change their habits. That's right. And sometimes the president feels compelled to reveal that kind of information. President Reagan did it in justifying his raid on Libya in response to the bombing of a discotech in Berlin. But the Libyans changed their communications habits as a result. Yeah, and we're going to talk about that with Karen about what was in the affidavit.

Or what was I personally would like to see the affidavit? Well, we're going to talk about why we're not seeing it. And the motion practice around it down the Southern District of Florida. But just to remind everybody that I'm going to turn it over to my co-anchor the three statutes And it's not the only statutes the only criminal statutes that they might be investigating But it's the one they use with the magistrate to say that there's a probable cause to believe that there's information to support potential violation of these three criminal statutes And we talked about it at length on the weekend edition with Ben. One is the espionage act of 1917, title 18, section 793, which only deals with,

it's beautiful and it's simplicity. The unauthorized retention of information related to the national defense. So it's called national defense information. It's not confidential information. It was it was passed in 1917, 33 years before Truman invented the classification system. So it can't be that. So all it has to be is national defense information that you have unauthorizedly retained and have not returned. So if you mishandle secret documents or national defense information documents, you have potentially violated the SB NOS Act. Nowhere in there is there a baked in defense that I waived the magic one and it was no longer classified. It doesn't matter. That's not that's that's that's that's that's foolish Information misinformation that's being generated by supporters who are not lawyers the second act that's listed from lack is 18 USC

19 which is destroying or concealing documents Or with the intent to obstruct an investigation again Listen Listen carefully investigation. Again, listen, listen carefully, no mention of classification systems. Doesn't matter. Just matters whether you took documents, trying to keep them out of the hands of the investigator to obstruct justice. And the last one, my favorite one, is 18 USC, 2071, which is the theft or destruction of government documents. Government documents, just means the providence of them, they were, they're government documents. There's no question that every document in that box

that he took out of the White House is a government document punishable by five years and potential bar of holding future federal office will leave for another day, whether that's gonna work under the Constitution or not, it's still one of my favorite. So why his acolytes, why his supporters are saying, well, they've changed their position

about five different times, are focused on class five or unclassified when it doesn't matter to the criminal statutes. I have no idea except they want to win the day on the new cycle, which has no, has no connection or tether to reality of the prosecution of, of their client, which is Donald Trump. Let me turn to Karen. So you've got motion practice going on.

You've got Trump, the blow hard puff it up his chest and saying, release it, release the affidavit. I want to know it's something in it that, how does he know what's in it? And you've got, you know, Lindsey Graham, all the American people deserve it. Get the affidavit out there. Talk about why the affidavit and an investigation like this is not something that you reveal, even if the press would love to get their hands on it and Trump would. And the references in the motion practice brought by the Southern District Florida office about techniques,

CIs, confidential informants and the like talk, talk our listeners and followers through that from a prosecutor's standpoint. So just to remind everybody, a search warrant is actually multiple documents in one. And it has a cover sheet, it has an affidavit, it has the actual court order, and it has a return, and a few other ministerial type attachments to it. But the three main parts of a warrant are this affidavit, which is sworn under oath by normally an FBI

agent or law enforcement person. And you go before the court and you raise your right hand and you swear to tell the truth and you sometimes they're usually in writing. These at the the affidavit is usually in writing, but in an emergency, you can do an oral search warrant and that has happened, but clearly this one's in writing and you swear in front of a court that the contents are true and in the aff the crime and they spell out why that there's probable cause that a crime occurred. But also that there would be a particular evidence of that crime in a particular location. The search warrant can't be too broad. It has to be fresh. In other words, the information can't be stale. It can't be months old. So I found that interesting when you think about this warrant, it means that they knew that it was at that location in Mara Lago very recently. So they must have some inside or who's telling them, these are the documents that are in Mara Lago in this location. They didn't have the, they would never be able to search the entirety of the resort or even his private home.

They'd have to go to a particular location looking for particular documents. So somebody's telling them what's there and where to find it recently and that it's still there. So all of that would be in this app of David. Now then there's the warrant that just says, I judge so and so, find that on this state that there's probable cause for these things at this location. And so I ordered blah, blah, blah. So it's very whatever. And then the return is what law enforcement fills out after the fact and says, we got this, we got this, we got this, we got this. And if it's classified or confidential, they'll have to redact some of

that. But so normally, all of that is under seal until somebody's charged with a crime because that's just it's you're it's part of an ongoing investigation and under seal means it's not public right it's like it's it's it's um filed with the court and it's and the only thing that the person who when you go execute the search warrant the only part of it the only document they get is the actual court order the warrant warrant, and the return. They don't get, they don't even get to see or know or have the affidavit. So Trump and his lawyers already have the warrant and the return, but it's still under seal. And so because Trump was saying huffing and puffing and making all these accusations Trump was saying, huffing and puffing and making all these accusations about it. He could have released it, but he didn't.

So, Marik Garland took the step to ask what the court looked. Trump, you put this into the public view. This is a matter of great public importance. Please unseal this document and release it to the public. And then Trump says, yes, but what about the affidavit? Because that's, of course, what everyone wants is the affidavit. But what happened was, and what happened in court recently, is all the news organizations really, really, really want it. And so they're the ones who are bringing multiple, multiple news organizations are bringing motions before the court saying, we think that

you should release this affidavit because there is all this information in there and this is a great public import. So what happened this week is the Department of Justice filed a response to these applications to unseal the warrant affidavit and they are saying that please don't do it. It's the legal standard is you have to balance the public interest in accessing these documents with the government interest of keeping these things confidential. And when you do that, you have to take into consideration certain things. For example, what they ultimately said was it'll prejudice the criminal investigation. And there's reasons why it would prejudice the criminal investigation, because this is very detailed.

And it's going to detail in there what it is and how they know what it is. I mean, I guarantee these, I mean, when you ask the question, pop, what, what differences it may give these things are top secret or classified or confidential in any matter, it doesn't matter. I think it matters partly because, because if this was, if we were talking about, you know, the Valentine that Rudy Giuliani gave to Donald Trump, you know, in February, and he took that with him,

I don't think we'd be here, right? These gotta be- No, I said it doesn't matter from a prosecution stamp. From a prosecution stamp. Not from a national defense stamp. Yeah, yeah, yeah. No, but that's why I think people, that's why I think, and that's part of what Trump and his cronies, you know, why they do such damage is because they really have made it so that

we can't, they're really calling into question, trust for law enforcement and trust for the national security of this country. And so we, it's so we don't trust, you know, we're saying we want to see this because we can't just say, trust me, these are important documents and he shouldn't have taken them. And because by releasing the affidavit, because we're what we're saying and what everybody's saying about releasing this affidavit, they're saying we don't trust you, Marigarlan, we don't trust our institutions of law enforcement that you have a really important interest in this.

So we need to see for ourselves, because otherwise, why are you going after a former president? This is political, et cetera. But it really could jeopardize the investigation significantly. And so the reasons, some only some of the reasons that were laid out are, for example, if a witness is new that the information that they were giving to the Department of Justice would be released, they're not going to be likely to want to come forward anymore. And they might hesitate.

And we already know that Trump and his people retaliate against people. I mean, look what they've done to the FBI since this August 8th, you know, raid on Mar-a-Lago. There's been threat. Go ahead. That's a footnote in the moving papers. Yeah, exactly. They've been already, that's true. They've already been threats to the FBI since then. So they said in the moving papers, this isn't theoretical or hypothetical, that this is already happening. And so this is to law enforcement. Imagine just your average, this is why Cassidy Hutchinson is so heroic, right? She's this 20-something year old who comes forward and is taking on

the big bad Trump because once you do the wrath of all of them come down on you. And so, you know, it's, it could, that could jeopardize the investigation. They could try to influence witnesses and, and they could even try to influence grand jurors if, if, if, if that were happening. Or they could destroy evidence if they knew what was in there. Or they could alter the trajectory of the investigation because you would do things differently. If you knew that law enforcement was about to make a certain move or doing going in some direction. It could, on, you know, reveal sort of future investigative efforts.

So there's so many reasons that it could have devastating consequences to a criminal investigation. And that is why they are opposing the release of this affidavit. It's just highly sensitive information. Yeah, I don't think this affidavit gets released. I think people can go pound sand if they think this is going to intimidate Merrick Garland. This is a precedent that would be terrible for future investigations.

And I think the magistrate judge that's running the show here, my prediction, I'm sure if you have a different prediction, say it, is that he's going to deny the motion to release the, um, the affidavit during the penance of, uh, of the prosecution. You think there's a, no, but there was one other thing that I noticed in the moving papers and I, I could be totally paranoid here, but I felt that there was a line in there that the DOJ, the DOJ is preparing for this to go all the way up to the Supreme Court. And there was a line in there that they put in preparation for that because there's a-

Which line? When they said that there's no 11th Circuit case addressing whether the First Amendment is a basis to reveal these documents, what they said was, what the Department of Justice said was, but there's no history or precedent of it being part of the first amendment. And that to me was a direct communication to the Supreme Court, because that's what they seem to look at these days. That's all they seem to look at.

Anyway, so I don't know about you, but that's what I read that into that. Yeah. I got very interesting. Let me turn back to Nick. Another side to this, which is we're in a, I mean, Salmon Rusty is an, you know, perhaps an extreme example. But we have seen law enforcement people, ordinary citizens attacked for holding unpopular views or unpopular positions, or offices like working for Trump and people would attack

them when they went to restaurants in Washington, for example. And revealing the names of informants who are ordinary citizens is not a joke. We know in the national security world, any number of intelligence ass, human intelligence ass, that's been murdered because their names have been revealed. And this is the political climate in this country as such that that's ought to be a concern. Even if the affidavit were released, names should be blacked out, et cetera.

And it's a very sad comment, I think Karen just made about the degree of distrust of our institutions. In the intelligence world, that distrust goes back a long, long way, historically, and that's why there are two committees of Congress and so forth. But basically, an awful lot of people don't trust CIA analysis, or they want to see the raw intelligence and make their own judgments and intelligence like criminal investigative intelligence is not always understandable to somebody who doesn't have real training to analyze it and understanding your context.

Yeah, I think that's very, very good. I have one last question for you because we're going to wrap for the midweek for Nick Why do you think and this could open up an opinion? I know that you and I talked about up for the show Why do you think? Donald Trump took 15 boxes of Obviously presidential records with him and thought nothing of it. Why?

presidential records with him and thought nothing of it. Why? I guess as he didn't even know he took 15 or 16 presidential records. I mean, the guy was you know a slob about these things. And he tore up documents he read as a sign that he'd read them even though their presidential documents and you're not put that we preserved So he had staff going around taping them up. I doubt even knew what was that there were They asked John they asked John Bolton today on CNN Do you think if there were nuclear secrets in there? That Trump would have had.

Trump is the person that would have been able to execute a plan to use them to harm America or to sell them. And Trump Bolton said, he's got the attention span of a fruit fly. There is no way he would have been able to do this, even if they were in those boxes. Trump's not your man, if that's your plan is basically what John Bolton said, who served as in the administration. And as the, you know, he's not just some random, you know, Trump likes to call him the rhinos.

He's not just a random rhino. He served at the administration. So I think it's consistent with what with what Nick just said, Nick, what a special pleasure. You've known about this show since the very beginning. We've been trying to find different angles like Ukraine or this and that fit. And then look, Trump gave us one right down, right down your wheelhouse. And I'd love to have you back on with Karen and me on other shows. How would you would you be into that? Of course. Anything I'm available whenever you ask and it's very kind of you to have me on the show. Absolutely.

Karen, wasn't it great? It's actually such an honor to have someone like Nick on the show when I was reading your history and your pedigree and your experience. You were literally in the room where it happened. I mean, you were the guy who saw it all and you must be just scratching your head with disbelief at where this country is today. He's just given everything that you've experienced and all the threats that come from the outside and now we're sort of internally imploding a little bit.

and now we're sort of internally imploding a little bit. Yeah. Well, I have great faith that we're going to implode. I was fearful that there'd be a more violent reaction to the Supreme Court decision abortion. And I think people are going to go to the ballot box and that's where the response will be. And I think Kansas has shown the way. I couldn't ask for a better ending to legal AF

and the Midas mighty network than what Nick Rostow just said. Okay. We've reached the conclusion, right Karen? We've reached the conclusion of another episode of legal AF midweek edition with Michael Popuck and Karen Friedman at Nifalo. Get this audio wherever you pull your podcast from Google, Apple pod, Spotify and the like. You can watch us on YouTube, of course.

And we'll see you next Wednesday for a regularly scheduled episode. Karen, see you next week. You know what else I'm going to pro-pop, by the way? What is that? I'm gonna get an aspiration zero credit card after this because now I can't, when my husband says you're spending too much money on the credit card, I can say I'm saving the planet.

I'm planting trees back off. Sure. But that's so great. I love that sponsor, it's such a great sponsor. And we'll see everybody next week. Take care.