A federal judge has rejected the Justice Department's access to classified
documents seized by the FBI in last month search of former President
Trump's Mar A Lago home. The judge has also appointed a veteran New
York jurist to serve as a special master independently review. The
classified records help us understand what this means for the investigation
into the former president.
I'm joined by University of Michigan law professor and former U S
attorney Barbara McQuade, Barbara McQuade, Welcome back to the news
hour. So what is known about this jurist who has been appointed as
special master by the judge?
Well, he's really got a very good reputation. I think he's a fine
judge. He is a long time judge on the Eastern District of New York
and Brooklyn. He previously served as U. S attorney there and appointee
of Ronald Reagan and also served on the FISA court, the Foreign Intelligence
Surveillance Court, and that's important because that signals that
he has experience dealing with classified documents so that part
of the order is great, but the problem with it, Judy is it's as if
saying
Guess what? You've got a world class, Uh, surgeon who's going to
remove your appendix? Isn't that great? Except you say, but I don't
need my appendix remote, and we should say I should have said the
name is Judge Raymond dearie. Who, as you say, was a appointed to
the bench by former President Trump. He's now retired, but still
active in ways in the judiciary. What will his job be exactly?
Well, it's not exactly clear. But he has issued his first letter
to the parties today, asking them to appear on Tuesday, which is
a good sign that he's moving quickly, and he asked them to set the
agenda as to what he should be looking at. I think this is actually
a good move on his part and an opportunity for the Justice Department
to perhaps narrow the areas of disagreement, of course with the Justice
Department really wants so urgently is an opportunity to fully review
those 100 or so classified documents.
So that they can make sure that there is no damage to our intelligence
community and sources whose lives might be in danger or methods of
collection that have been compromised. And so it's an opportunity
for them to get that right at the top of the list. So what? Remind
us. What are the arguments then? That the judge who made this decision
took to get a special master involved one of the arguments that she's
then making in in her ruling that that in disagreement with the Department
of Justice
Well, she says, a couple of things that the Justice Department disagrees
with. And I have to say, I think the Justice Department has the stronger
argument here. One is that she argues that Donald Trump has potentially
possessory interest in some of these documents that were seized.
The Justice Department says no if their presidential records they
belong to the United States government, the Presidential records
Act says so.
Um, to the extent they are classified. These belong to the government,
and she says something that I thought was rather shocking, innit?
She said the mere fact that they say classified does not mean that
they are classified. That is, um I think a real breach of the separation
of powers because it is the Justice Department. The executive branch
part of really one of their core responsibilities to say what is
and isn't classified. The other area of dispute is whether Donald
Trump has any executive privilege over any of these documents again.
This is not seem like a viable argument the idea that he would exert
executive privilege against the very executive branch that owns it.
And so those areas of dispute may force the Justice Department to
file an appeal here.
They said earlier that they would at least as to this stay because
they're always thinking not only about this case but about institutionally
protecting other cases. That may come down the road. And that's what
I wanted to ask you about. When the Justice Department says we need
this, and we need to look at this information. We need to continue
our work and do it now we need we can't wait. Why? Why? What is the
reason that they give for needing to do it as soon as possible?
Well, what they want to do quickly is to assess any damage that's
been done to the intelligence community. So if, for example, there
is a source of information who is stationed in a hostile foreign
government, uh, whose identity has been compromised That person's
life could be in danger. Or if there is a method of collection, some
technological surveillance method that is not publicly known yet
if that should become discovered it could either dry up.
That source of information, or it could even be used as a channel
to push disinformation if people found out about that, so that's
a very urgent challenge. Now. The judge did say You can go ahead
and do that part of the investigation. But you can't use these documents
for your criminal investigation and what the Justice Department has
said. Is there really inextricably intertwined? They even got an
affidavit.
From the director of the counterintelligence Select its division,
saying so that you need to interview people to say, um, who had access
to these documents at Mara Lago? Do you know why there may be empty
folders there and what happened to the contents of those things?
That's all part of the damage assessment, But it's also part of the
criminal investigation and the worst thing that could happen here.
Judy is that the Justice Department in its effort to protect the
integrity of the intelligence
Does something that runs afoul of her order because then they become
tainted and anything that happens down the road in this case could
be a basis for reversal of a conviction. So they really want some
clarity. I think upfront about what they're allowed to do and not
allowed to do, and they don't want their hands tied so that they
can conduct this intelligence assessment. So many strands of this
story. And as you say, we are waiting to see tonight. In fact, whether
there is this appeal by justice, this story will definitely continue.
And as you say,
The special master will hold a hearing.
On Monday. Barbara McQuade, Thank you.