The DOJ can get Trump's hand-picked judge removed from the case — here's howHarvard Law Professor Laurence Tribe joined Lawrence O'Donnell on Wednesday night, and after hearing him address some of the legal matters facing Donald Trump, another law scholar was aghast anyone has to take the matters as if they're serious. But former acting-solicitor general, Neal Katyal, came up with a strategy for how the Justice Department can circumvent the Trump-appointed judge the ex-president shopped to get from the beginning.
Andrew Weissmann, who served as general counsel for the FBI and a prosecutor on special counsel Robert Mueller's team, began the discussion by saying that the Justice Department appeal the injunction but not necessarily the special master. The documents that fall under executive privilege are going to be very easy to suss out from those involving personal attorney-client privilege. At the same time, nothing that is in a classified or "top secret" folder is going to fall under privileged information for Donald Trump.
"This is like a thief taking documents then saying, 'Judge, I want them back,'" Weissmann said. "This is a complete farce. And to have somebody like Laurence Tribe and Neal Katyal have to address this, as if it's a serious argument, just tells you the depths that we are in. And just to be very serious for a moment the notion that in the documents there are state secrets involving nuclear capabilities — it means that there is present harm to national security. Our allies and countries that want to quietly cooperate with us are looking at all of this and making decisions about whether they should continue to do so if we cannot keep secrets. That is how we protect this country. It is how we thwart terrorist attacks. It is how we conduct important, lifesaving undercover operations."
That's why it's so important to get the information back, he explained, and the national security piece of the story is likely a factor in how Merrick Garland will act moving forward. He will do what is in the best interest of national security and get to a decision in reversing that piece of Judge Aileen Cannon's ruling quickly.
Katyal conceded that appeals take a very long time to deal with. Trump will also likely appeal to the Supreme Court and that will take even more time. It isn't clear, however, if due to this involving national security, and now we learn it involves nuclear secrets, if the courts would be willing to move faster. Given there are questions about whether Trump still has documents, based on the empty folders found, there could be even more search warrants issued.
His second point is that the more information that comes out the worse Judge Cannon looks, and it's only going to get worse.
"Every day, every week, we learn a new fact about just how bad Trump's behavior was. Now, it is nuclear secrets. That also underscores just how bad the decision was by this judge in Florida. So, appointing a special master is one thing, but stopping a criminal investigation of this magnitude in its tracks because you think, as a federal judge, that some documents might be privileged. That is insane. That is a bazooka when one needs, at most, a scalpel. And if you have lost Bill Barr, and Bill Barr is -- God. That is...." Katyal said, trailing off.
The other option, he suggested, is seeking clarification from the judge. Already it has been argued that the judge will likely have to issue an edit to her opinion because she misquoted a case.
"She said the current president, President Biden has not waived executive privilege," she obviously didn't read the last part of the government's brief saying that he'd said so. But the government, the solicitor general, can have a document from Biden saying, 'I hereby wave executive privilege.' They could then ask her to narrow the scope of the injunction, so that the investigation can proceed. The downside: this judge doesn't seem all that amenable to reconsideration or logic," Katyal continued.
The last option, he said, is one he suggests the Justice Department go with, and that is Judge Cannon basically argued that she shouldn't be overseeing the case to begin with.
"She pleaded herself out of her own court," said Katyal. "Because she planted remedies to the special master via the Presidential Records Act. And she has a footnote on this, Footnote 16, which says basically, the Presidential Records Act says that you can only bring these cases in Washington D.C. and only Washington D.C. judges can oversee them. So, that maybe that's what the Justice Department, I think, should do here. Get this case before judges who are experts on presidential records and executive privilege and the like."
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