Fight Over Seized Mar-a-Lago Documents Escalates

number of ways. I don't think the appointment of a special master is going to hold up, and the Justice Department has decided to appeal Judge Aileen Cannon's order, taking a legal sledge hammer to her ruling. Joining me as national security law expert and former federal prosecutor, Jimmy Garula, a professor at Notre Dame Law School. Jimmy, let's start with the judges order. I frankly thought that Trump's motion for a special man ster was the longest of long shots.

What was your reaction to the ruling? Well, I was surprised by the decision, and then when I read the decision, I was even more concerned by the lack of really thoughtful legal reasoning. It's a deeply flawed ruling an opinion, And I would say this as a law professor. Had this been the quality product that one of my students had submitted for a grade, I'm not sure that it would have received a passing grade. It's that poorly written.

Is the judge's decision that the special Master can review the documents for executive privilege as well as attorney client privilege especially troubling. The problem is that there's no legal authority whatsoever for the proposition that a former president of

the United States may properly invoke executive privilege. And more so, it's problematic because executive privilege has been raised in the context of whether or not Congress the legislature can access presidential documents, not whether the executive branch itself can access

such documents. And that's the case here. He's claiming that there's an executive privilege not only for former presidents, but that the executive privilege further banned the executive branch of the government from accessing certain documents involving communications with the president. And there's no authority for that proposition whatsoever. You said this decision was deeply flawed. What's the most flawed part

of it. I think there's two aspects to it. And by the way, Judge Cannon admits that this is an open issue, does not cite any authority for the proposition that executive privilege applies here. In fact, the one case

that she cites, which is Trump versus. Thompson, which involves the January sixth Committee, a decision by the Supreme Court decided earlier this year that involved the legislative branch, and again the January six Committee that was seeking documents from President Trump, and she quotes from Justice Kavanaugh, but again that quote involves a very different context, not the legislative

branch seeking to obtain executive records. But secondarily, the other problem with the ruling, as she grants a restraining order on the Department of Justice the FBI from continuing to investigate the matter while these eleven thousand documents are being reviewed by the Special Master. And the legal standard for an injunction is first and foremost number one, a substantial likelihood of success on the merits. And then she finds that there is a substantial likelihood of success on the merits.

But the merits here involved whether the executive privilege applies to a former president with respect to requests from the executive branch, that's an open question. How can there be a substantial likelihood of success that there's this executive privilege that applies here when there's no authority to support it whatsoever. So that just is an absurd conclusion and certainly undermines and is going to hamper d J's investigation. Is it unheard of for a district judge to enjoin a federal

criminal investigation. I'm unaware of any precedent. If there is precedent, it is extremely, extremely rare for the judiciary to intervene in an executive branch criminal investigation and order that that investigation be halted. So, this, in my opinion, is unprecedented ruling by the court. The judge can set out limits, I take it. But how long do you think it

would take for a special Master to go through these? Well, it's complicated because you know that that's just simply the first the first effort here's I mean, so the special Master is going to take some time. I think with respect to the attorney client privileged documents, I think that that the Special Master should be able to go through these eleven thousand and documents in a reasonable period of time. But I mean that it could take months. I mean

it's not inconceivable. This process could take months. On the executive privilege issue, that one is just confounding because how is the Special Master to determine whether something falls within the executive privilege when it's never been established by by any court that there is such an executive privilege. So this is just going to be a lot of subjectives,

you know, second guessing, speculation by the Special Master. And then let's assume that the Special Master decides that certain documents do in fact or privileged under the executive privilege, then what's going to happen? Then I think that d o j would challenge that ruling or those rulings conceivably, and that could go up to the Court of Appeals, and that could go up to the Supreme Court. And so this is gonna be just protracted and protracted delay

and delay, which of course benefits former President Trump. Did her ruling carve out a special accept to the normal legal process for the former president. It's putting him in the special category of one. In contrast to the Justice Department saying over and over again that we're going to treat him just like any other person. You know. The the Judge Cannon seemed to place a great deal of emphasis on the second requirement for an injunction, and that

is a harm irreparable injury. And so here Judge Cannon found that there would be irreparable injury if a special Master is not selected to review these documents, because if ultimately d j's investigation results in an indictment, that indictment would damage the reputation of the president. Well, guess what, you know, Surprise, surprise, Every indictment damages the reputation of

the defendants. So there's nothing unique here. And so for the court to place this this emphasis on the reputation of the former president being damaged by a criminal investigation and being damaged by a indictment of an indictment, in fact, return that happens in every single case. And so it seems to me that former President Trump is being treated differently by this court than defendants and virtually every other case.

They're certainly not afforded a special master to review the evidence that was sees pursued into a lawfully issued search warrant and executed by by law enforcement officers and also, the FBI already went through the documents and set a

sign attorney client privileged documents. Well, that's that's really interesting too, because with respect to the injunction, it should be underscored that this was not never requested by the plaintiffs and their mission and their initial motion for a special master, they wholly requested that that the FBI not be permitted to review the documents. And of course, because that motion was file so late after the execution of the search warrant, it was too late because the FBI had time to

view all of the records that were sees. And so, in essence, the court is affording the plaintiffs something that they did not request and their initial pleadings, and that neither party was permitted to brief and litigate and argue before before the court. Can this hurt the FBI's investigation besides just delaying it, Well it can. It can hurt it in a couple of ways. Certainly delay and the delay you know, conceivably could be multiple months, you know,

even even a year longer. And then the problem becomes, is this going to run up against presidential election? You know, assuming that former President Trump is the Republican candidate presidential candidate, in which case, based on d J policies and procedures, maybe too close to the presidential election where the FBI or d J may say, well, we just can't continue the investigation. We cannot return an indictment, you know, two months, three months before election, and then of course you know,

taking it, you know, speculating, you know. Further, if former President Trump was was re elected to the presidency, then I suspect that that this investigation would be halted by the Department of Justice, that the Trump Department of Justice immediately the same day that he's sworn in as presidents. So it can certainly hurt the FBI investigation beyond simply

the delay. And then one additional issue. If the Special Master concludes a certain documents fall within either the attorney client privilege or the executive privilege, then the FBI will not be permitted to use those documents as evidence to prove whether or not the former president violator federal law. The Justice Department has filed notice that it's going to appeal the judge's order, but it's also asking the judge

for an emergency stay. Tell us about that. The Department of Justice is seeking the partial state, focusing on two important aspects of the Court's earlier ruling. First, the part of the Court's ruling that enjoyed the Department of Justice from using classified documents that were seized at Moral Lago

in their criminal investigation. The Department of Justice wants to be able to use the classified documents not only for the purpose of determining any damage to national security, but also for purposes of their criminal investigation, which d J states that these two issues are inextricably linked and they

can't be separated. As Judge Cannon had previously ordered. She stated that the Department of Justice was prohibited from using any of the documents sees to Morrow Lago, including the classified documents, for purposes of the criminal investigation, but at the same time, they could use those documents to assess the damage to national security as a result of their mishandling.

And so this is kind of a very narrow focus, and I think the point here is that they're hoping, and I think that our arguments are very persuasive and compelling, that they can get the Court to reconsider its previous ruling on these narrow issues and avoid kind of a long protracted, you know, appeal with respect to these issues.

Do you think the Justice Department has a good chance on its appeal to the Eleventh Circuit, even though it's considered the second most conservative circuit in the country, with six out of eleven judges Trump appointees. I do so. First, d o J is arguing that the Court's ruling on September five is going to result in irreparable harm to national security. And historically, the courts have been very deferential to the executive branch on determinations related to national security.

You know why, because the executive branch is in a much better position to evaluate and assess any potential threats to national security, certainly much more than the courts. You know, the courts don't have the information, the evidence before the court to make that determination. So this claim by d o J that the Court's order is going to result and irreparable damage to national security, I think that any court, including the Eleventh Circuit, including the Supreme Court, should be

very differential to d o J's determination on national security grounds. Finally, Jimmy, as a national security expert, what are your concerns about the mishandling of these classified documents. Over a hundred classified documents were seized by the FBI during the search, and dozens of those were classified as top secret documents, documents that, if obtained by our adverse areas, could result in severe

damage to national security. So the fact that former President Trump literally had dozens and dozens of these top secret documents at his moral logo residents that were not properly stored that he did not have proper authority to retain is not only shocking and stunning, but again, it raises serious concerns regarding the jeopardy national security jeopardy that Trump's reckless actions have placed the United States. Thanks Jimmy, that's

Jimmy ga rule of Notre Dame Law School. Remember to build the Wall chance that rang out at Trump rallies. Well thousands of Trump's supporters gave more than fifteen million dollars to a nonprofit that promised to build that wall on the southern border. But Manhattan District Attorney Alvin Bragg says though We Build the Wall group was a scam and that former Trump strategist Steve Bannon was the architect of it. It is a crime. It's a profit off

the backs of donors by making pretenses. Bannon was charged with money laundering, fraud, and conspiracy. If those charges sound familiar, it's because Bannon faced similar federal charges in but he never went to trial and because of a last minute pardon from former President Donald Trump. Here's New York Attorney General Leticia James. Mr Bannon lied to ordinary citizens about

this project. He diverted their hard earned money, He preyed upon the emotions of New Yorkers and Americans, and then when Mr Bannon was held accountable for his criminal actions, the former president pardoned him. After pleading not guilty to the charges, Bannon left the courthouse making his familiar claim that the charges were politically motivated. We're not going to back down, and they will not be able to shut

me up, and I'm gonna stay and fight this. My guest, his former federal prosecutor, Robert Mint's a partner McCarter in English, Bob tell us about the charges against Bannon. All of these charges relate to a privately funded entity in which funds were raised from private individuals, mostly in smaller amounts five and ten dollars, in order to raise money for a boarder's wall. In two locations in Texas and in

New Mexico. According to authorities, while none of this money was supposed to go to the individuals running this charitable entity, money instead was funneled to both the CEO of this company and to Mr Bannon for various private and personal uses. And that's essentially what they have been charged with here. So the charges echo of federal case brought against Bannon two years ago, but he was pardoned by former President Trump before trial. Are there any double jeopardy concerns here?

Double jeopardy essentially prevented individual for being ride twice for the same offense. Now, in this case, there were federal charges that were brought and ultimately Mr Bannon never went to trial because he was pardoned by President Trump. In that case, double jeopardy does not apply because the jury was never convened to weigh the federal fraud charges. That's why these state charges will withstand a challenge to double jeopardy,

even though Mr Bannon was already charged federally those charges. Again, no jury was ever in Canada, which means the trial never began and therefore double jeopardy did not attach. So the Manhattan District Attorney's office has sort of made itself the guardian of presidential pardons, and New York even passed a law three years ago. Why do you think the Manhattan District Attorney has taken this on not only Alvin

Bragg but before him, Syvance. Well, this indictment it gets Mr Bannon is an example of the continuing efforts by the Manhattan distrit Attorney's office to charge recipients of federal pardons by President Trump. Because the State Prosecutors Bill leave

they broke state laws as well as federal laws. So another example of state prosecutors charging someone who was pardoned by President Trump was the case in twenty eighteen where Trump's former campaign manager Paul Manaport was convicted in federal court of financial fraud, but was later pardoned by President Trump. In March nineteen, then Manhattan District Attorney Cyrus Vance charged Paul Manaport with mortgage fraud and a dozen other state

felonies in that case. However, the judge ultimately ruled that those charges did violate the state's double jeopardy law because Mr Mantaport had stood for trial and had been convicted, and in that case, based upon the law as it existed in New York State at the time. Double jeopardy prevented the Manhattan District Attorney's office from bringing these charges, which were very similar to the federal charges that Mr

Manafort had already been convicted of. Three of Bannon's former partners and We Built the Wall, were also charged to pleaded guilty, and a third went to trial that ended in a mistruy because the jury couldn't reach a unanimous verdict. In fact, and this is unusual, eleven of the jurors sent a note to the judge asking her to remove the twelfth juror, who they said had spoken of a government witch hunt and refused to deliberate based on the evidence.

What does that tell you about the upcoming Bannon trial In this case, I think we can expect from Steve Bannon a politically charged defense. He's going to raise exactly those types of claims, but this is a political witch hunt. He's going to try to channel a lot of the rhetoric we've seen from President Trump regarding his own legal issues and hope that they can get at least one member of the jury to simply reject the evidence and buy into the theories that this entire prosecution is simply

politically motivated. What prosecutors will have to do during the voidier, which is the part of the process where they pick jurors, is trying to make sure that every juror that's selected is wanting to be able to impartially unfairly way the evidence and make a decision solely based on that. I think we can also expect the judge to curtail the defense to the extent they are trying to make this

a political issue. I think we're going to see the judge limit that type of argument and force the defense to focus on the evidence that prosecutors are presenting a trial. That's certainly what happened in the trial where Bannon was convicted of contempt of Congress. Thanks so much, Bob. That's Robert Mints of McCarter and English, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast.

You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, Slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at tend M Wall Street Time. I'm June Grossow, and you're listening to Bloomberg FO