Why DOJ Would Want Mar-a-Lago Affidavit to Remain Sealed

Is this lawsuit? For real? Bloomberg Law with June Grasso from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm Kimberly Robinson and I'm Vidio Wheeler. We're in for June Grasso. Coming up on the show. We're going to discuss the latest battle between first a meenment rights and anti discrimination

laws to hit the U. S. Supreme Court. But first we're going to talk about how the public could soon see portions of the affidavit the FBI used to justify its search of former President Donald Trump's Mari Lago estate. A federal judge week gave the Justice Department a week to propose what parts of this highly sensitive document should be redacted. Media outlets pushed for the documents to be unsealed after the FBI rated Trump's Palm Beach, Florida home

on August eight. The search was part of an investigation into whether President Trump took classified documents from the White House when he left office. Joining us as the Honorable Alberto Gonzalez, who served as the country's eightieth Attorney General during the George W. Bush administration. He's now dean of Belmont University College of Law. Honorable Gonzalez, can you explain what an affidavit is and what information it typically contains? Well?

In this particular, an affidavit is a sworn statement by someone affirming the truthfulness of certain facts. In this particular case and a criminal prosecution, typically you provide an affidavit that lays out the information that supports finding a probable cause. Uh. That can be quite detailed, quite extensive, because of course you want to make the case, you want to meet the burden, the standard of probable calls and um. So that's what an affidavit typically would entail and include in

connection with a with a criminal prosecution. So this dispute is all about, you know, whether or not the public is to see this affidavit, and I'm just wondering, what does that matter. We've already seen the surcharrant itself, and you know it includes a description of some of the items that were seized. What other information does the affidavit have that we don't already know about. Well, without seeing

the affidavit, I'm going to be just speculating here. But for example, an affidavit might include the name the identity of a witness who provides information. Perhaps the affidavit would say on some and so day, we met with this individual and this individual provided this information, or so so date, this individual provided an email that included certain information that would form the basis of possibly evidence that crime has

been committed. So it can be quite detailed, quite frankly, because you do want to meet the standard before the judge, and you want to persuade the judge that yes, there's enough here to conduct the search, because of course a very contrusive investigatory tool, and so the information can be quite detailed. And I think part of the concern here

is that there are two concerns primarily for the prosecution. Generally, one is particularly if you have a witness that you don't want to have that identity is closed at this particular time, particularly there's a concern about safety or public harassment.

You want to protect the identity of that witness, of course, and there are other reason you want to protect information that is enclosed in an affidavit is that it does provide somewhat of a roadmap, not a very I wouldn't say a definitive roadmap, but does provide a hint indication of how the prosecution is going to use information or evidence or what evidence it has gathered in connection with a roadmap to strategy about how to prosecute the crime.

That's interesting the Justice Department set in one of the court filings that it actually wants to keep this affidate that sealed, you know, to protect the integrity of an ongoing law enforcement investigation. But can you explain for us how releasing it could harm the integrity of that investigation. I mean, I understand wanting to protect witnesses, but what is it about the integrity of the investigation that could

be harmed. Well, it will provide more information about the specific charges and the evidence that the prostitution already has. And if you know what evidence and what potential witnesses may be called to testify. As a defense lawyer, you're

better able to prepare for it. The other thing that there would be concerned about is, of course, is that your case may may hinge in large part upon upon the cooperation of a witness, and that witness may be discouraged from participating and cooperating if in fact, this identity that witnesses to publicize the witnesses or ass and the witnesses forget it. I'm not going to cooperate any in any way, and so it would force the government to

try to compel the witness to testify to cooperate. Of course, that's never an ideal situation. So you really do want to work with and protect the identity of witnesses, There's no question about it. So you know, this dispute comes as media groups have asked for the judge to make the affidavit here public. I'm just wondering, you know, how common is it for the press to try to intervene

in cases like this. Well, no, it's unusual because we have an unprecedented search, we have an unprecedented set of circumstances here, and so typically the press would not weigh in. I think the press would generally is more understanding of the fact that they don't want to do anything or they shouldn't want to do anything to put it that way that would compromise or hurt an investigation that would

make it more difficult to prosecute wrongdoing, for example. And so I understand the great public interests in this uh And maybe perhaps this is a press feeling like you need to at least appear to want to have this

information make public. But I have to believe that responsible journalists understand that it's important to keep certain information confidential as long as possible, if in the judgment of the prosecution, that's important to have a successful prosecution of actual criminal wrongdoing.

You know, I think when the judge makes the comment or discloses that perhaps certain parts of this affidavit is going to be disclosed, I can't imagine that on a case this sensitive and it's important for the government because

it is important. But it took a huge step in doing this search that the judge is going to allow any kind of meaningful disclosure of information in his affidavit, so that the press maybe you know, they're jumping up and down screaming for this information, and they're now look like they're going to get something. I think they're gonna be disappointed in what the judge actually allows to be released that is not redacted. Quite frankly, that's the honorable

Alberto Gonzalez. You're listening to Bloomberg Law. Up next, we continue our conversation with the former U. S Attorney General. I'm Lidia Wheeler and I'm kimber Le Robinson. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Lidia Wheeler and I'm Kimberly Robinson. We're in for June Grasso. We've been talking with the Honorable Alberto Gonzalez, who served as the country's eightieth Attorney General during the

George W. Bush administration. Honorable Gonzalez Trump said publicly and that the judge should unseal the affidavit, but his attorney has never actually filed a motion to ask for the judge to do that. So why do you think that is? I have no idea why it is. You know, typically someone who has actually committed a crime, they want to

get away with it. They don't want to disclose and so they would typically not want to disclose the fact that bet it Starts occurred, and if in fact it was Cromwell wrongdoing, you know, they may not want that disclose as well. In this particular case, I think former President Trump rather an orthodox in the way and he deals with the media and law enforcement in our court system, and uh, you know, I have no idea much of the rational reason behind some of the things that he's doing,

some of the things that he's saying. Well, without you know, being able to get inside the head of the former president and his attorneys, what could be the endgame here for the formal president? What about the Affidavid would give a defendant an advantage if there are any charges brought

that would benefit from having this affidavit unsealed. Well, again, depending what's in the affidavit, of course, he would be able to learn what witnesses had come forward and might be willing to testify, and uh, he would know have more information about what documents they actually the government has in its position, and so they would have a much better sense of the strength of their case. And so it would then at that point I think he would use that to gauge, well, what should I do here?

Should I not be worried about this moving forward? And I'll use this as an opportunity to embarrass the government and to bolster my chances of winning the nominee four. I can continue to say that this is all po local witch hunt, knowing that, in fact, if they move forward,

that I'm not gonna be prosecuted. On the other hand, if it looks like they've got some pretty strong evidence, I don't think he would calculate that he could deter he could bully his way out of its prosecution moving forward, but it may encourage him to perhaps have his lawyers sit down with the department and maybe negotiate some kind of, you know, plea deal or something like that. There's been a lot of talking, even you mentioned it, about how

unprecedented this investigation is. But is there any case in history or investigation that even comes close in comparison or that you would compare this to not really, because, um, you know, in the history of our country, there's never

been a former president that's had their home search. Um. Now, there may have been Polemary investigations of someone that you know, we just don't know about, but we're not aware of anything like like a search that occurred with respect to the Florida's state and it's for that reason you had the Attorney General make this decision. You know, total searches go on every day throughout this country and the Attorney

jenial is not involved. In fact that there are many senior officials within main Justice in Washington were gone involved. Typically it's going to be a senior person at the U. S. Attorney's office somewhere in one of the states. But in this particular case, UM, this was because it was so unprecedented, UH and involved the former president who may be thinking

about running for president, the Attorney general weighed end. When I was the Attorney General, I had the same situation where I had to make a call on a search that that was unprecedented and that involved the search of Congston William Jefferson's Congressional Hill office. UM. We can suspected

Hill of bribery, influence peddling, and money laundering. And I was approached by senior members of my team at the Department of Justice who informed me that they believed that there was evidence in Connorsman Jefferson's Capitol Hill office and they wanted to conduct the search in the heretory of our country. Best ever been done before, where you had

the FBI on Capitol Hill going through Congress in congressman's office. Now, we've conducted searches in the district offices of congressman's we've conducted searches in the cars of a congressman, but never in a Capitol Hill office. And they my team knew it was unprecedented and they wanted to make sure I was okay with it. In the same situation occurred with

General Garland. The team knew this was unprecedented, and so they knew this was a decision had to be made by the Attorney General because it is so unprecedented, and quite frankly, the attorney you know, would want to know any advance that they're about to do this because the attorney you'll needs to weigh in. And very one final point that's very important. When we did our search UM, I did not notify the wine House because it's a

law enforcement matter. You don't want to have this um characterized as politics by opponents, and so we just did what we do every day. And and my understanding is based upon the comments from General Garland, is that they didn't notify the White House either, because it's a law enforcement matter and they did it by the book and that's the way that they should be. That's really interesting.

Does having the weight of the Attorney General's office behind an investigation room, backing an investigation like this, does that bolster your case that you could potentially bring. I mean, what advantage does that serve any Well? Well, it may at the outset in terms of rulings by the judge, but at the end of the day, it's going to be based you know, the charging decision and the decision decisions at the trial, strategy and the and the presentations

at trial will be made based on the evidence. That's all you have. I mean, that's what you that's what you use, and that's what you flye upon the fact that the Attorney General has signed off on the search and he will sign off on the charging decision, I'm sure as well. I mean, if they don't decide to go forward, he will sign off on that. You know, again, it's all gonna be based on the evidence, not whether or not the Attorney General beliefs in fact that the

crime has been committed here. But Canada Department, does the Department feel comfortable confident as it will a will persuade twelve independent um unbiased jurors that in fact, all the elements of a crime can be proved beyond a reasonable doubt. And then just really briefly, on a final note, the Justice Department has a week under the course order to propose what parts of the documents should be redacted and

withheld from public view. How much information do you think at the end of the day the public is really going to learn from from this APPA, David, Well, as I said in sponsor and earlier question, I think that the public and in particular the press is going to be disappointed. I think they're not gonna learn much. Quite frankly, I think what will be release will be a very heavily redacted document that will not provide that will not be very satisfying to UM, Donald Trump and not satisfying

to the media. I just because I do believe the course will be very sensitive protecting had any of witnesses and to protecting the integrity of the investigation going forward, despite the great public interest in this in in this manner, honorable Gonzoz, thank you so much for being here. You're listening to Bloomberg Law. I'm Lidia Wheeler and I'm Kimberly Robinson.

Coming up, we speak with former Federal Appellate Court judge Michael McConnell about the latest LGBT battle at the U. S. Supreme Court and the ongoing clash for First Amendment rights. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Lidia Wheeler and I'm Kimberly Robinson. We're in for June Grasso. We're joined now by a former federal judge, Michael McConnell, to talk about Three or Three Creative, a Supreme Court case of the justices will

take up in the upcoming term. The case pits a state anti discrimination law meant to protect same sex couples against free speech rights. And we've seen a version of this dispute at the High Court before in the case of a Colorado baker who said his religious beliefs prevented him from making a custom wedding cake for same sex couple.

This time around, though, the dispute, also out of the Centennial State, involves a web designer who says she can't design custom websites for same sex couples without violating her

sincerely held religious beliefs. Briefing from both sides and their so called friends or amichi wrapped up last week, setting up the case to be heard sometime in late or early Judge McConnell as I mentioned, this case is very similar to Masterpiece Cake Shop, which the Justice is decided in, but it differs in one really important way, and that's that this dispute is framed as one about free speech instead of religious liberty. What if any difference is that

going to make this time around. Well, I think it greatly simplifies and narrows the case because a free exercise claim might be brought by anyone whose beliefs prevent them working with same sex wedding. This as a speech case, this is combined just to people whose activities are expressive in nature, people are actually speaking, so it's a much narrow work case. This didn't start out as just a

free speech case though. In the beginning, the web designer asked the justices to consider whether the state's anti discrimination law violated her religious freedom um. But the Justice has actually changed the question they were asked to sign and honed in exclusively on this speech right. So I'm curious how often do you see the court do something like that where they rewrite the question and what does that signal? So it doesn't happen very often. I mean, this is

not a unicorn. It happens from time to time, but this is somewhat unusual, and it indicates that the Court really wants to focus in on the speech claim, which, as I say, is narrower uh, and not the broader free exercise client m. So we've seen the Roberts Court under Chief Justice John Roberts issue ruling after ruling that a pretty protective of religious rights, particularly the right to

freely exercise uh, your religion. And that was so just his last term in cases involving educational funding and school prayer. I'm wondering, does the Court's reframing of this case as one involving only speech signal that the Court is kind of shifting away from robustly protecting religious rights. Have we reached kind of the high water mark there? I don't think so. I don't think it indicates anything of the sort.

It indicates that the facts of this case seemed to map more clearly onto free speech doctrine than anything else, and then so can you just give our listeners a brief rundown about what the major issues here are as the justices are set to decide this case. This case is simpler in many ways than the earlier cases that have gone up to the court, especially the one about

the baker. The main reason it's simpler is that there is no dispute in this case that the conduct is expressive and you know when when when looking at a wedding cake. The justices were somewhat uncertain as to how to view that, and during the oral argument, Justice Soda Mayor said that the cake was just food, indicating that it didn't really have an expressive component to it. But in this case, the lower court specifically held that web

design is speech and treated it as such. And secondly, there is no dispute in the case that the web designer does not discriminate on the basis of sexual orientation. She does not refuse to provide services to same sex couples. What she refuses to do is to provide services to any event that she believes is contrary to her beliefs. So it's specifically not a case about discrimination on the

basis of orientation. It's discrimination on the basis of the message, and that makes this a much clearer case of a free speech violation than the earlier decisions that had gone up to the court. It doesn't seem like this a case is going to end this tension between you know, the First Amendment and LGBT issues. I'm curious as to

what other disputes could be on the horizon here. Well, the Supreme Court decisions never end disputes that they could sometimes make them worse, and I am hoping that this would be an occasion for the Court to try to calm the waters rather than boil them. I think transgender issues are probably the biggest issue that are coming down the pike in terms of forcing people to say things

that are affirming. There was a six Circuit decision not long ago about a tenure college professor who refused to use students selected pronouns in class, and the court held that he had a right not to be forced to use pronouns that reflected a view that he disbelieved them. Well, that's Michael McConnell who said on the US Court of Appeals for the tense Circuit, which here's disputes like this

one out of Colorado. McConnell is now professor at Stanford Law and the director of the school's Constitutional Law Center. You're listening to Bloomberg Law. Up next, we continue our conversation with Judge McConnell. I'm Kimberly Robinson and I'm Lidio Wheeler. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Kimberly Robinson and I'm Lydia Wheeler.

We're in Virjune Grasso. We've been talking with former federal judge Michael McConnell about the latest battle between LGBT rights and the first Amendment to come before the U. S. Supreme Court. So I wanted to get into the legal arguments of this case. Three or three creative Uh. The court below, the court that you yourself set on for a number of years, said that Colorado's antidiscrimination law compels citizens to speak and at the same time prevents them

from saying certain things. Typically, such findings would doom the law under what's known in the legal world as strict scrutiny. But that's not what happened here. Can you tell us a little bit about the various levels of scrutiny that courts will apply when looking to see whether or not a law passes constitutional muster and what happened in this case. This is an over simple apification, but there are basically

three levels of scrutiny. Rational basis scrutiny is a case where yes, there may be a right involved, but it's not a fundamental right, it's not a clearly established right, and all that the government needs to do is to show that it has a rational basis for its action.

Then there is that the opposite in strict scrutiny, which is where there is a presumptive violation of an important constitutional right and the government is not permitted to do that unless it has what's called a compelling governmental interests, which is an extremely powerful interest that could not be

satisfied in a less restrictive manner. In between is something called intermediate scrutiny, which requires uh an important though not compelling interests, and narrow tailoring but not the least restrictive means. Free speech claims, where the government is actually regulating on the basis of the content of what someone says says are always governed by strict scrutiny, and quite frankly, they're

almost as is automatic invalidation. I mean when one scholar famously described it a strict in theory, but fatal in fact. It would be highly unusual for the court to hold that strict scrutiny applies in this case, but that the state wins anyway. But that's what happened in the court below, right, And so was that a bit surprising. The decision below was really quite surprising. The logic of the decision was that, yes,

this was compelled speech. That web designer was being forced to say something that she didn't believe in, and that's ordinarily a clear violation of the First Amendment. But in this case, the state had a compelling interest, according to the court, because her web designs are unique. Uh. This is not like you know, going to the grocery store and buying a commodity. It's not like buying a cake off the shelf of the bakery. Uh. Each web design is unique, and the web designer is highly skilled and

artistic and so forth. And so what the court held was that the state has a compelling interest to protect LBGT couples UH seeking same sex marriage. Website designs that they need to be protected because they are entitled to this highly unique service. Now, this is very surprising because

it's it actually flips the usual argument. The usual argument is that um and when when you talk about somebody like a baker, which was the last case, that if the person is simply buying goods off the shelf like pre made cakes, that the discrimination laws apply, but that they don't apply when an artistic or expressive person has to has to do a unique um item and the tent circuit in this case that it was the other way around. That it's when you're seeking the unique services

of an artist that the discrimination laws apply. That is highly counterintuitive conclusion. Interesting, Honorable McConnelly. Do you have an idea of how the Supreme Court will approach this case? You know? And are there any particular justices that you're watching clufully here. Well, it's very hard to predict a court that this This looks like it's a case it's

destined to be reversed at least six to three. And I wonder if it might be This is total speculation and I could be wrong, but I wonder if it might be that the court reached out for this especially powerful case and narrowed it in the way that they

did in order to produce a unanimous decision. It would be very good for our culture for the Supreme Court to speak unanimously on an issue that is this fraught and contentious, and it might help establish the idea that the decisions creating a right the same sex marriage we're really intended to be freedom decisions to allow people the freedom to marriage, to engage in marriage, but not an oppressive decision that forces everyone else to be as to

how they uh speak about it. And so I wonder if maybe this is a prelude to a unanimous decision that would help calm the waters of this uh devisive issue. Well,

that's interesting. You know. We we talked a bit about how this case is like the Masterpiece cake Shop that the Justice has heard before, and they were able to avoid kind of the regular split in that case by taking sort of an off ramp, And that is to say that they decided a really narrow factual issue in that case and send the dispute back to the lower

courts to deal with. I'm wondering, do you think this time around will actually get an answer as to how these state and A discrimination laws are meant to interact with First Amendment rights or do you think the court is going to look for and take another one of these kind of off roads. I don't see any obvious off ramp here. Again, it's hard to predict, but I think we'll get a real answer to the underlying question, and I think the answer is most likely to be yes.

People have a constitutional right to UM marry whom they want. The same sex marriage is constitutionally protected, but private citizens are not required to speak in support of that that people who don't approve of same sex marriage are entitled

to have their opinion. Who So, it strikes me that both of these cases UM come out of Colorado, and there is discussion in the corporlo about this masterpiece take shop and how the commission there and how a commission here would be kind of drawing off of that previous case. I wonder is it a coincidence that both of these cases come out of Colorado or is there something in particular about Colorado's law and the way that it's being

enforced that is bringing these issues really UM to the forefront. Well, other states have similar laws, and some of somewhat parallel cases have come off out of Arizona in the state of Washington, and I think they're bubbling up elsewhere. My guess is that this is not quite a coincidence, though it's probably the case, and I really don't know, this is speculation, but it's probably the case that the Colorado

Commission is especially aggressive. Interesting. You know, in the petition, the website designer here says that the Colorado law actually creates this pro LGBT Jerrymander, and I was hoping that you might be able to explain for us how exactly it does that. Well, the reason for that argument is that in general, artists, including web designers, uh, any person engaged in an expressive activity, have the right to reserve

their speech for what they want. And so, you know, nobody told Michelangelo that he had to do things that were supportive of the church rather than against it. Artists are free. The R and D discrimination laws, for the for the most part, don't even touch that. It's highly unusual a law. But here because of the protection for LGBT discrimination. That means that one side in this culture dispute is protected and the other isn't. So that if a web designer decided to specialize in lb GT weddings

and same sex weddings. Uh, they would be fine. It was perfectly okay to specialize for same sexed weddings, is by the way I think it should be. Uh, It's just that it's not okay when it's the other way around. And that is I believe why the party in this case argues that this is a gerryman or it's a kind of viewpoint discrimination. M So I want to try to understand the implications if the Supreme Court allows the

lower court ruling to stand. I'm wondering what will states be allowed to require, um, not just for website designers, but going forward, even out of the wedding business. You know, are there things that the government could force people to say or do if this case stands the way that it is now, The potential and occasions are very broad. Should you do it? I don't know. I think that the impulse to force uh supportive speech in this particular

area it is particularly strong. That means so for But to use an example sort of from the other side of a spectrum, you know, imagine that a a web designer or cakemaker or whoever, it was was being asked to give a to provide their services to a Roman Catholic or Mormon or other Islamic religious meeting at which uh, same sex marriages were being condemned, and they say, well, no, I'm not going to do that. I disapproval. That's in

a sense religious discrimination. They're refusing to serve a particular religious service, and I think under the logic they could be forced to do that thanks to Michael McConnell. And that does it for this episode of Bloomberg glob I'm Kimberly Robinson and I'm Lydia Wheeler. This is Bloomberg m