OUR CLOSE WORKING RELATIONSHIP
REGARDING DOCUMENT TURNOVER.
WE GAVE THEM MUCH.
THE BIG QUESTION TONIGHT, WHERE
DOES IT ALL GO FROM HERE?
JOINING US WITH ANALYSIS, THE
AUTHOR OF THE PRICE OF
PRINCIPLE.
HARVARD LAW PROFESSOR ALAN
DERSHOWITZ ALONG WITH FORMER
U.S. ATTORNEY BRETT TOLMAN AND
FOX NEWS LEGAL ANALYST GREGG
JARRETT.
THANK YOU FOR JOINING US.
YOU ARE A FORMER U.S. ATTORNEY.
I WILL START WITH YOU.
I CANNOT GET PAST THE FACT THAT
A JUDGE LESS THAN TWO MONTHS AGO
HAD TO RECUSE THEMSELVES.
WE DON’T KNOW WHY, BUT HAD TO
RECUSE HIMSELF FROM A TRUMP
ISSUE AND LESS THAN TWO MONTHS
LATER HE IS MAKING THIS RULING.
I DON’T GET HOW THAT HAPPENS IN
TODAY’S LEGAL SYSTEM.
CINO JASON, IF THE RECUSAL CAME
AS A RESULT OF THE POLITICAL
CONNECTION BETWEEN THIS JUDGE
AND HILLARY CLINTON, WHICH MOST
LIKELY IT WAS, THEN IT REALLY IS
OUTRAGEOUS THAT HE WOULD NOT
RECUSE HIMSELF WHEN THE MAIN
POLITICAL ADVERSARY OF HILLARY
CLINTON, OBAMA AND BIDEN AND
ANYONE ON THE LEFT AS FORMER
PRESIDENT DONALD TRUMP YOU WOULD
HAVE THOUGHT IT WOULD HAVE
APPLIED ALSO IN THIS
CIRCUMSTANCE ESPECIALLY IN THE
CRIMINAL LAW WHEN THERE’S A LOT
MORE ON THE LINE.
>> CRAIG, I LOVE THE PIECE YOU
WROTE ON FOX NEWS.com, BUT
ESSENTIALLY THEY WERE GIVING A
FISHING LICENSE TO GO TO TOWN ON
DONALD TRUMP’S RESIDENTS.
WHAT IS YOUR REED ON WHAT YOU
READ IN THE AFFIDAVIT?
>> THIS IS WHAT I READ.
THERE ARE 20 PAGES OF THIS OUT
OF A TOTAL OF 30.
YOU WILL REQUIRE THAT MERRICK
GARLAND STOOD IN FRONT OF
CAMERAS AND MICROPHONES AND
WOULD SAY WE WILL SPEAK FOUR OUR
FILINGS.
THIS IS HOW HE SPEAKS.
HE MUZZLES HIS VOICE WITH
BLACKING.
HE PROBABLY RAN THROUGH 2 OR 3
SHARPIE PENS TO DO ALL 20 PAGES
OF THIS.
THE FIRST EIGHT PAGES WE
ACTUALLY GET TO SEE THAT THAT IS
SIMPLY A RECITATION BY ROTE OF
LEGAL STATUTORY QUOTATIONS AND
VAGUE BACKGROUND INFORMATION.
BUT YOU DO LEARN TWO THINGS.
TWO MISTAKES BY THE FBI AND
MERRICK GARLAND.
FIRST OF ALL, THEY ASSUME THAT
ALL OF THESE DOCUMENTS THEY
WANT, OR SOME OF THEM ARE
CLASSIFIED WITHOUT CONSIDERING
THAT TRUMP MAY HAVE DECLASSIFIED
THEM.
THE SECOND MISTAKE IS THEY
AUTOMATICALLY ASSUME THAT THESE
THREE STATUTES, CRIMINAL
STATUTES, GENERAL STATUTES THAT
THEY CITE AS AUTHORITY THAT
GIVES THEM PROBABLE CAUSE TO GO
INTO TRUMP’S HOME IS CONTROLLING
THE LAW.
THEY NEVER CONSIDERED THAT IT’S
NOT A CONTROLLING LAW OF THE
PRESIDENTIAL RECORDS ACT.
IT IS A SPECIFIC STATUTE THAT
TAKES PRECEDENT OVER THE GENERAL
STATUTES AND IT DOES GIVE A
FORMER PRESIDENT A MEASURE AND A
RIGHT OF CONTROL AND CUSTODY,
ACCESS AND POSSESSION.
BUT THEY NEVER CONSIDER THAT AND
NEITHER, BY THE WAY, DO THE
MAGISTRATE WHEN THEY SIGN OFF ON
THIS.
>> PROFESSOR DERSHOWITZ, YOU
HAVE SEEN A LOT OF CASES IN YOUR
TIME.
WHAT DO YOU MAKE OF THIS
SITUATION?
>> I DISAGREE WITH YOUR TWO
PREVIOUS SPEAKERS.
REINHARDT DID THE RIGHT THING BY
SIGNING THE SEARCH WARRANT.
EVERY SINGLE JUDGE AND
MAGISTRATE IN THE UNITED STATES
WOULD HAVE FOUND PROBABLE CAUSE
BASED ON THIS AFFIDAVIT.
THEY MAY HAVE NARROWED THE
SEARCH SOMEWHAT, BUT THERE IS
ABSOLUTELY NO DOUBT THAT IT WAS
PROBABLE CAUSE.
THAT IS NUMBER ONE.
NUMBER TWO, THE REAL PROBLEM-
>> HOLD ON A SECOND.
I WANT TO ASK A QUESTION.
THE JUDGE RECUSED HIMSELF LESS
THAN TWO MONTHS LATER ON A CASE
ON DONALD TRUMP.
HOW DOES HE TURN AROUND AND SAY
I CAN MAKE A RULING ON THIS?
>> EVERY JUDGE WOULD HAVE MADE
THE SAME RULING.
NO HARM, NO FOUL.
THE PROBLEM WAS NOT WITH
REINHARDT.
IT WAS WITH THE ATTORNEY GENERAL
WHO DID NOT FOLLOW HIS OWN
GUIDELINES.
THERE SHOULD NEVER HAVE BEEN A
SEARCH WARRANT REQUESTED TO
HERE.
THERE WAS A SUBPOENA ISSUED AND
WHAT I READ, AND I READ IT ALL,
OF THE UNREDACTED MATERIAL MAKES
A STRONG CASE AGAINST A SEARCH
WARRANT.
THERE WAS NO URGENCY.
IF THEY WANTED A SEARCH WARRANT,
IF IT WAS SO URGENT, THEY COULD
HAVE GOTTEN IT FIVE MONTHS AGO.
AND EVEN WHEN THEY GOT THE
SEARCH WARRANT, THEY WAITED TWO
DAYS.
THERE WAS NO JUSTIFICATION 4A
SEARCH WARRANT.
IF YOU WANT TO TALK ABOUT WHO IS
TO BLAME IT IS NOT REINHARDT.
IT’S THE ATTORNEY GENERAL OF THE
UNITED STATES.
HE SHOULD NEVER HAVE SOUGHT A
SEARCH WARRANT.
THE OTHER IMPORTANT THING IS
THERE IS ENOUGH EVIDENCE HERE TO
INDICT TRUMP.
BUT TRUMP WILL NOT BE INDICTED
IN MY VIEW BECAUSE THE EVIDENCE
DOESN’T PASS WHAT I CALL THE
NIXON/CLICKS AND STANDARDS.
THE CASE HAS TO BE SO
OVERWHELMINGLY STRONG AND NEED
REPUBLICANS WORK.
THE CLINTON STANDARD IS WHY IS
THIS CASE MORE SERIOUS THAN
CLINTON’S CASE WHERE THERE
WASN’T A CRIMINAL PROSECUTION?
I THINK THE THREE POINTS ARE
THERE WAS PROBABLE CAUSE, THEY
SHOULDN’T HAVE A WARRANT.
THERE ISN’T ENOUGH OR AN
INDICTMENT BUT THERE WILL NOT BE
AN INDICTMENT AND SHOULD NOT BE
AN INDICTMENT BASED ON WHAT WE
HAVE SEEN UP TO NOW.
ONCE IT’S UNREDACTED WE WILL
CHANGE OUR MINDS.
>> LET’S HEAR YOUR REACTION.
>> A FAIR AND IMPARTIAL JUDGE
WOULD HAVE LOOKED AT THIS THING
AND ASKED TO CHALLENGING
QUESTIONS.
THEY WOULD HAVE SAID, WAIT A
MINUTE.
THE CONTROLLING STATUTE HERE IS
PRESIDENTIAL RECORDS ASK.
WHY AREN’T YOU SEEKING AN
ENFORCEMENT PROCEEDING HERE TO
GET THE DOCUMENTS THAT YOU WANT?
THAT’S WHAT A GOOD JUDGE WOULD
HAVE DONE.
A JUDGE WOULD HAVE SEEN THROUGH
THIS CHARADE.
>> NAME A JUDGE.
>> HOLD ON.
LET’S LET BRETT RESPOND TO THIS.
WHAT IS YOUR TAKE?
>> IF THERE IS PROBABLE CAUSE IN
THIS AFFIDAVIT, IT IS IN THE
REDACTED PARTS.
THE UNREDACTED PARTS DO NOT HAVE
PROBABLE CAUSE.
IT IS NOT SUFFICIENT BASED ON
WHAT WE KNOW IN ORDER TO JUSTIFY
THE SEARCH WARRANT.
I AGREE WITH THE PROFESSOR THAT
A SEARCH WARRANT WAS NOT
JUSTIFIED IN THIS CASE BOTH
BECAUSE WE DON’T HAVE THE
PROBABLE CAUSE NECESSARY TO
ISSUE IT BUT ALSO BECAUSE THE
VERY THINGS THAT ARE OUTLINED IN
THE UNREDACTED PART EXPLICITLY
INDICATE A BACK-AND-FORTH
DIALOGUE.
IT READS MORE LIKE A CIVIL
DISPUTE.
LET ME TELL YOU, JASON, IF YOU
HAVE TO TAKE 38 PAGES TO TRY TO
CONVINCE A JUDGE THAT THERE IS
PROBABLE CAUSE WE MAY HAVE A
PROBLEM WITH YOUR CASE.
>> IT IS AN EXTREMELY LOW
STANDARD.
WARRANTS ARE GIVEN OUT LIKE
CHRISTMAS GIFTS.
THIS JUDGE DID A MUCH BETTER JOB
THAN MOST DID.
MOST JUDGES WOULD NOT HAVE
ISSUED THE AFFIDAVIT EVEN WITH
REDACTIONS.
THIS JUDGE HAD NO CHOICE.
I DON’T BELIEVE THERE’S A JUDGE
IN THE COUNTRY WOULD NOT HAVE
ISSUED A SEARCH WARRANT.
SOME OF THEM HAD ASKED SOME HARD
QUESTIONS.
THE JUDGE JOB IS DIFFERENT FROM
THE ATTORNEY GENERAL.
THE JUDGE HAS TO LOOK AT THE
EVIDENCE IN THE AFFIDAVIT AND
MAKE A LEGAL DECISION.
THE ATTORNEY GENERAL HAS TO MAKE
A DISCRETIONARY DECISION.
HE HAS TO ABIDE BY JUSTICE
DEPARTMENT STANDARDS.
IF YOU ARE GOING TO POINT THE
FINGER AT ANYBODY, POINTED AT
GARLANDS, NOT AT REINHARDT.
THAT IS MY VIEW.
I THINK THEY HAD ENOUGH TO GET
PROBABLE CAUSE, BUT THEY
SHOULDN’T HAVE SOUGHT A WARRANT
IN THE FIRST PLACE.
IF THEY DID SEEK A WARRANT IS
SHOULD HAVE BEEN NARROWER.
THERE IS NO JUSTIFICATION FOUR
SEARCHING THE CLOSET OF MISSES
TRUMP OR EVEN GOING INTO THE
SAFE.
I DIDN’T SEE ANY CAUSE WERE
THAT.
GENERAL PROBABLE CAUSE IS THAT.
>> GREG, WHY DIDN’T THIS JUDGE
TAKE A LOOK AT THE WARRANT
ITSELF AND SAY WAIT A MINUTE,
THIS IS A GENERAL SEARCH
WARRANT.
THAT’S A DIRECT VIOLATION OF THE
FOURTH AMENDMENT TO THE
CONSTITUTION WHICH REQUIRES
SPECIFICITY, PARTICULARLY
DESCRIBED DOCUMENTS TO BE SEIZED
AT PARTICULAR LOCATIONS.
NONE OF THAT IS IN THIS MOURNING
TO.
SO A GOOD JUDGE WOULD HAVE SEEN
THROUGH THIS SHAM AND WOULD HAVE
SAID, WAIT A MINUTE.
I WILL NOT SIGN OFF ON SOMETHING
LIKE THIS.
IT’S A VIOLATION OF THE TARGET’S
CONSTITUTIONAL RIGHT TO.
>> BRETT, WHAT IS YOUR REACTION
TO THAT?
>> THIS IS NOT A NORMAL CASE.
THIS IS NOT A STANDARD CASE.
THIS IS ONE IN WHICH THE
PRESIDENT CLEARLY CAN POSSESS
CLASSIFIED DOCUMENTS.
THE PRESIDENT ALSO HAS THE
UNFETTERED ABILITY THE SUPREME
COURT TELLS US THAT HE CAN
DECLASSIFY DOCUMENTS.
WITHOUT THE JUDGE BEING INFORMED
PROPERLY OF THAT, YOU DON’T HAVE
A BASIS IN JUDGE REINHARDT’S
POSITION TO UNDERSTAND WHETHER
OR NOT YOU TRULY HAVE A STATUTE
THAT APPLIES IN THAT
CIRCUMSTANCE.
IT MAY BE ACCURATE, BUT WE DON’T
KNOW YET.
WE DON’T KNOW WHETHER OR NOT
THERE WAS PROBABLE CAUSE.
>> PROFESSOR, HOLD ON.
I WILL GIVE YOU THE LAST WORD.
I WANT YOU TO KEEP IN MIND THAT
THE PRESIDENT OF THE UNITED
STATES ALWAYS IN PERPETUITY HAS
THE HIGHEST CLASSIFICATION THAT
IS POSSIBLE.
TO SUGGEST THAT THEY ARE NOT IN
A A SECURE SITUATION WHERE THEY
ARE PROTECTED BY THE SECRET
SERVICE, FOUR GOODNESS SAKE, IS
HARDLY A CASE TO BE MADE THAT
THEY ARE OUT THERE FLOATING OUT
THERE IN THE PUBLIC AND IMPOSE A
GRAVE DANGER.
I DO AGREE WITH YOU THE IDEA
THAT THEY DIDN’T ACT IMMEDIATELY
IF THERE WAS SUCH URGENCY THAT
WHY 19 MONTHS AFTER DONALD TRUMP
LEFT OFFICE THAT THEY ARE NOT
JUST DOING THIS IT DOES NOT LEND
TO THE CREDIBILITY BEFORE WE GO
INTO THE MIDTERMS.
>> I AGREE WITH ALL THAT.
THERE WAS PROBABLE CAUSE EVEN
WITHOUT THE CLASSIFICATION
ISSUE.
TO GET PROBABLE CAUSE ALL YOU
HAVE TO SHOW IS THAT THERE IS A
PROBABILITY THAT YOU CAN FIND
EVIDENCE OF SOME CRIME AND THE
CRIME SPECIFIED IN THE WARRANT.
THEY INCLUDED ALL KINDS OF
THINGS THAT HILLARY CLINTON WAS
CHARGED WITH.
SHE WAS NOT SUBJECTED TO A
SEARCH WARRANT, THUS THE DOUBLE
STANDARD.
I WANT TO MAKE A SHARP
DISTINCTION BETWEEN WHAT THE
JUDGE DID AND SHOULD HAVE DONE.
I AGREE WE SHOULD HAVE NARROWED
THE SEARCH WARRANT AND ASKED
MORE QUESTION.
THERE WAS PROBABLE CAUSE, BUT
THERE WAS NOT ENOUGH URGENCY
BEFORE THE ATTORNEY GENERAL TO
VIOLATE THE STANDARDS OF THE
JUSTICE DEPARTMENT, PARTICULARLY
AGAINST A FUTURE PRESIDENTIAL
CANDIDATE WHO IS RUNNING AGAINST
THE PRESIDENT WHO APPOINTED THE
ATTORNEY GENERAL.
IN THAT SITUATION YOU HAVE TO BE
EXTRA CAREFUL TO MAKE SURE THAT
JUSTICE IS NOT ONLY DONE, BUT IT
IS SEEN TO BE DONE.
THIS DOES NOT SATISFY THAT
STANDARD.
>> GENTLEMEN, YOU ARE GETTING TO
THE HEART OF THE KNOB.
WE HAVE TO MOVE ON.
I WANT TO THANK THE THREE OF
YOU.
WHEN I WAS THE CHAIRMAN OF THE
OVERSIGHT COMMITTEE AND I ISSUED
SUBPOENAS AND HILLARY CLINTON
TOOK A BLEACH BIT AND DESTROYED
DOCUMENTS, WHEN WE ISSUED
SUBPOENAS ON THE IRS FOR
DOCUMENTS ON POLITICAL TARGETING
AND THEY DESTROYED DOCUMENTS,
WHEN WE HAD THESE TYPES OF
SITUATIONS, GUESS WHAT?
THE DEPARTMENT OF JUSTICE DIDN’T
GO IN GUNS BLAZING WITH
DOCUMENTS TO GO SEES THINGS.
THEY HANDED OUT IMMUNITY
AGREEMENTS TO THOSE PEOPLE.
THAT’S THE RUB.
IT’S THE UNEQUAL APPLICATION OF
JUSTICE THAT MAKES THIS TOTALLY
AND FUNDAMENTALLY TARGETING
SITUATION AND IT’S NOT WRITE.
UNTIL LADY JUSTICE ASK THE SAME
WITH A BIDEN AND A CLINTON AS IT
DOES WITH A TRUMP OR ANYBODY IN
BETWEEN, WE ARE GOING TO
CONTINUE TO HAVE A PROBLEM IN
THIS COUNTRY.
I HAVE TO MOVE ON.