 special master. That's the term of the day. This is American Issues, take one. I am joined by Chuck Crumpton, attorney Chuck Crumpton, who is a host of a number of shows on ThinkTech. And we're going to talk about what Eileen Cannon did in Florida to decide to appoint a special master. Welcome to the show, Chuck. Thanks, Jay. Always a pleasure. The same here. So, you know, we had this extraordinary decision by Eileen Cannon, and she ruled that there would be a special master in order to look at, I guess, the documents that were seized by the FBI a month ago. So, my first question to you is, who is Eileen Cannon? She's a United States district judge, and they used to be worthy. That's a picture of her. They used to be worthy of our, you know, total respect. But I'm not sure that's true in this case. Who is she? Well, it's noteworthy that Judge Cannon's appointment, who was actually completed and confirmed after Trump lost the election, this is another one of Mitch McConnell's shove it through any way you can, forget the rules, forget the procedures, forget all of the protocols that are supposed to apply to this. So, did she get a full review? Clearly not. Is she qualified based on this decision? Clearly not. Every commentator, every legal expert that I've read or heard regarding this decision uniformly agrees. It is untenable and indefensible legally. First of all, if you look at what a special master is and what their role is in a discovery issue, an information gathering issue like this one. First of all, they usually are involved in those in civil cases, where the volume of documents that needs to be perused and reviewed and evaluated exceeds the ability of the judge, the court, to be able to do that. So, they appoint someone to do that. And second, because there's an issue regarding the propriety of disclosure and use of some of that information in those documents that has a legitimate legal basis. This is not that. This is a criminal investigation, putting it in context. Number one, immediately after the election was confirmed, the National Archives reported to the Biden administration and the Department of Justice that there appeared to be a very large number of documents that have been removed. Including some that appeared to be very highly classified. So, that led to a request from the administration and the National Archives to Trump and his administration to return those documents. They don't have a right to remove them without the approval of both the National Archives and the new administration. Some documents were provided. Following the review of those, the National Archives again reported that there still appeared to be a very large number and amount of documents, including highly classified documents that have not been returned. At that point, the Department of Justice got involved, contacted Trump's lawyers, and made formal written requests for return of all those documents, which by law are supposed to be deposited with the National Archives. Again, more documents were provided. Trump's lawyers then went on record in writing, saying, this is all there is. The National Archives again went through it and again confirmed that there were still quite a few documents missing, including quite a number of highly classified documents that should not have been taken in the first place and that were important to national security. At that point, after a process to attempt to, for the third time, they get the return of those wrongfully taken and removed documents, including classified documents. Trump's lawyers again confirmed, no, that's all there is. It led to the submission of a very, very detailed affidavit chronology of all of this and listing of the categories of information that led the Department of Justice to believe that a crime had been committed and that evidence of that crime, including more unreturned documents, classified documents among those, was at Mar-a-Lago. The judge that reviewed those in that criminal investigation proceeding was satisfied that the standards for probable cause of a crime, wrongful removal, and non-return of documents, despite all of the efforts to get them back voluntarily, could be located at Mar-a-Lago and the search was approved. The search went forward. Over 11,000 documents, including well over 100 documents that appear to be highly classified, top secret, or at the highest levels of national security classification, have been secured by that search. The FBI has gone through those. They've confirmed that. There is no reason for or benefit to a special master. Number one, because Trump and his team have those documents for eight months before the August search by the FBI of Mar-a-Lago. They knew what was in there. They knew exactly what was and was not classified, what was and was not subject to a claim of attorney-client privilege, and they knew that there was no legal basis for a claim of executive privilege because that could only be made by the current administration. A past president doesn't have a claim of executive privilege. This judge has glossed that over, completely ignored that, and among her many legal errors in this order has assumed that a claim of political bias could substantiate having some effect on the documents obtained by and secured by the FBI, both prior to the search by request and in the search. There isn't any legal basis for that. This judge is out there twisting in the wind. Her only hope is that the Federal Court of Appeals above her, the 11th Circuit, consists of 11 judges, six of which were appointed by Trump. The question is, will enough of those judges, if the question comes to them, and eventually it certainly will, side with Trump regardless of whether there's a legal basis for it or not, as she has. That kind of gives us started. Yeah. Well, a couple of things. This judge is in a different location than the first judge who issued the warrant and who ruled on whether the affidavit or any part of it could be released. And we should talk about that in a moment. But as I recall, this judge is sitting 80 miles away in another courthouse. How did it get from courthouse one to courthouse two? I thought that when you start a federal case anywhere in the country, you get a judge. And that judge rides the case. Whatever comes up, that judge handles the case. I know that happens here in Hawaii. How all of a sudden did this second action get started in a completely different court, a completely different judge, but involving the same search and seizure? Do you have any thoughts on that? Yeah, that's a great question because the initial judge that reviewed the very, very detailed warrant, affidavit and substantiation for the search, approved it. That's a criminal investigation warrant. That's a criminal case investigation. That was the jurisdiction of that judge. It's over the propriety of the establishment and probable cause to believe that there was evidence of a crime at Mar-a-Lago and the substantiation for that that DOJ had provided. This judge has essentially treated this as if this is some kind of civil case, like an accident case or a libel case or a tort case. She's not applying any of the criminal standards for criminal investigation proceedings. She has not given any difference to the rulings or the substantiation upon which the other judge's grant of the warrant for the search was based. She's essentially starting over from scratch and not taking into account any of the applicable criminal and constitutional legal constrictions on the opposition to the search. You know, what's interesting is I've always felt that when you have an obvious case of judge shopping, which is exactly what we have here, you know, Trump, the principal, the plaintiff, I guess in both cases, wanted to get in front of a judge he had appointed and who, you know, would follow, would be loyal to him. Loyalty being the operative term criteria. He was able to do it and it shed some light on the system about judge shopping. If you are, you know, going to judge shop, who is going to stop you? Will it be the 11th Circuit? I don't think so. Is there some kind of judge shopping referee somewhere that says, wait a minute, this is obviously judge shopping. This is in the raw judge shopping, but the federal system, you know, didn't operate that way. It allowed Trump to shop the case to somebody who he felt would be loyal to him. That's a bit of a shocker room as far as I know because I always felt that if you tried that, you know, you would be criticized for it. But here, he and his lawyers have gotten away with it, right? Well, and it's interesting because, and that's a great question because he did try it 61 times in 61 different courts after the 2020 election, all of which failed because he had no evidence. He still has no evidence that would set aside the finding of the criminal investigation judge in the initial proceeding, in which Trump was not a party. The location of Mar-A-Lago was designated as the place where the evidence of crime was expected to be found based on all of the information provided in the supporting affidavit. But he was not a party to it. He initiated this other proceeding specifically in order to make himself a party and to attempt to obtain the leverage of claiming that as former president, he had rights, executive privilege rights, attorney-client privilege rights, and other rights that could outweigh that criminal investigation authorization that was provided by the judge in the search case. Your comments raise the specter of more with Eileen Cannon. If she favors Trump, which she clearly, clearly does politically on a loyalty basis, then he is going to be enamored with her and he is going to try other motions, other lawsuits and claims with her, not with the judge that ruled over the affidavit issue and issued the search warrant. So we can expect that Eileen Cannon is in for the long haul. They'll be more through her. That seems clear to me and if I were Trump, I would do exactly that. I think he will do exactly that. But let's talk about, I totally agree with you, this is completely inappropriate and I'm sure we'll hear a lot more from the bar around the country to appoint a special master in the circumstances of this criminal search warrant, where the FBI has already looked at all the documents, where they can make that decision. You know, why are you bringing someone else in? The first question that occurs to me, there are many logistical questions here. The first question is, this is, it's not only nuclear secrets, it's secrets at the highest level of government, of our government. And that does include nuclear, of course. It includes our nuclear. It includes their nuclear. It includes our strategies. It includes their strategy. I mean, it's at the top of the heap. The other thing is that you don't have to watch a lot of late night TV to know that when you put the identity of a spy, of an agent, of an intelligence organization, that person, A, has been neutralized. He has to come home right away or get killed. And B, if he doesn't come home right away, he will be killed. It's that simple. It's life and death if once you out a spy. And that kind of classified information is very sensitive because lives are on the line to say nothing about all the information that these agents could and would gather and to say nothing about the fact that they may be irreplaceable. Once you have to pull them out or they are somehow neutralized by assassination or whatever, you can't get back to where you were. You have to find another way to replace that spy. It may take years. It may be impossible. So you lose the leverage of your intelligence gathering for a long time, perhaps forever. This is why it is so important to keep this information secret. You don't have to watch a lot of late night TV to know all that I've said. That's the way it works in the world. So I don't know if the public, however, is really thinking about this. And I don't think that Eileen Cannon was thinking about this. But the problem is who in the world is going to have a clearance, a security clearance that goes so high that weed the public can have some confidence that it won't be revealed to the public. If this special master is another Trumper, I would be very concerned that a special master is a hole in the boat. Remember, one of the comments that Trump made early on was he felt that all these documents should be transparent. And he wanted to give them all to the public. What? You want to give nuclear secrets to the public? You want to give intelligence information to the public? Are you out of your mind? But that's what he said. And so I think he's got us all confused about exactly how critical these documents are to national security. I don't know if the president has really been clear about that. So she's got a problem in finding somebody who would be a special master and have a security clearance at the highest level in the country and be reliable enough if she appoints another acolyte. I'm afraid we could have no confidence out of it. Well, and your point highlights something that is probably one of the most glaring and disturbing legal deficiencies in the decision. She gives absolutely no weight and priority at all to national security interests. The whole point of this investigation is the violation of national security interests in a criminal act by the removal of these documents from the protective safekeeping that would safeguard them from that kind of exposure. She gives that absolutely no weight or priority. Instead, she gives overriding weight and priority to claims of political bias that have nothing to do with the legitimacy of the criminal investigation or the authenticity of the support and substantiation for that search, which did in fact turn up exactly what they said it would. Highly classified documents that were strewn not only in boxes, but in desktores and around in the office in Mar-a-Lago in very unsecured situations. Just doing that is a criminal violation. It also reflects his complete disrespect for the government and for his successor and of course for national security and the safety of the intelligence community. You know, it's not only assassination, it's torture. You don't have to go to rocket science to know that. So she was, it's almost as if he wrote the opinion that he gave her the instructions what to do. He called her up one night and said, hey, Eileen, I hope you appreciate my appointment of you as a federal judge. I hope you feel loyal and obligated to me. Here's what you need to do. And he gave her his perception. And that's why it's so naive. She's not competent, but she's also working for him. The other thing is when we go from here, this is the bad decision to appoint to even order a special master. It's going to be very problematic to actually identify a special master. But what exactly is a special, here's a question for you, Chuck. I never promised you a rose garden, Chuck. What is a special master supposed to actually do? She is at some point she's got to say, I mean I think she's got to say, I hope she knows, she's got to say what this appointee of hers is going to do. What is she going to do? Is there anything that he could do that would be useful or appropriate? In this case under these circumstances, as most legal commentators and experts have noted, probably not. There's probably not anything that a special master can add. Trump and his team had all these documents for far more than long enough to identify anything as to which they claimed attorney client privilege, as to which they claimed even though legally indefensible executive privilege or any other objection they may have to the use or disclosure of that document or that information. The burden is on them to produce it. She's now essentially shifted it to say, I'm going to appoint somebody who can lend support to their position that some of this information, some of these documents can't be used, can't be disclosed in criminal proceedings. But the main objective is delay, and by her putting out to the parties proposed lists of possible special masters without considering any of the national security clearance requirements that someone would need to have just to be able to see these documents. She's essentially engineered a process that could be self-perpetuating and gone for months and months and months. Yeah, and she doesn't understand at the end of the day, whatever he does or doesn't do, it's going to come back on her desk. She didn't have a security clearance. He's the wrong person to begin with if she thinks a special master would be in any way appropriate. But I think your point really is the wraparound point. You know, lawyers like to make timelines. And if you and I sat down to make a timeline on this, just from what we've said here in these few minutes, Trump has done so many things that reveal his basic strategy of delay. Remember, we haven't mentioned it yet, but there was this woman, Pat Murphy. I think Patricia Murphy, I think her name was, and she was the woman at GSA who was supposed to determine the likelihood that Joe Biden had won the election. And she waited for 60 days before she actually made that determination. He was another acolyte of Trump's. And while that 60 days passed, nothing went to Biden. And he was not included in the intelligence briefings. And he didn't get these documents. He should have had these documents on day one, obviously, to protect the country. But Trump separated him from these documents by using this flimflam thing with Murphy. So, you know, that's a delay. It was an attempt, obviously, to hobble Biden's new administration. And he's done everything he could do after that to hobble Biden's administration, everything. I mean, we, you know, the public only knows some of it. I'm sure there's much more. And I'm sure it includes, you know, the silverware and the napkins in the White House dining movement. You know, I'm sure he walked away with everything. He wanted to make it as hard for Joe Biden to start his presidency as he possibly, possibly could. Okay, so now we have this little gameplay with the archives that goes on for months. You know, I tell you the truth, if I had been, you know, the Department of Justice, Attorney General, I wouldn't have let it go on that long. I don't think you would either. It was obvious what he was doing. He was seeking delay. He was playing a game as he does, as he always does, seeking delay and seeking to manipulate the system. So he made him wait all that time. And finally, somebody said, hey, we're going to be embarrassed if we let this go on any longer. We better do something. And that was back in June, I guess, of 2022. If you made a timeline, you would see that everything Trump did was to delay this. And then going into that motion practice with the first judge, let's see the affidavit. We need to see the affidavit and getting into the redaction game. You know, that was intended only for delay. You know, when's the last time the Department of Justice or the FBI gave up an affidavit like that? That's part of their investigation. It's not for public consumption. And I think the judge, you know, was trying to run it down the middle. But in fact, I was rooting for him to say, no, sorry, this is an FBI investigation. You can't have that. We'll let you know after the grand jury meets. But not now. But Trump got, you know, he got his finger in the door there and made some delay over it. Thankfully, it wasn't very long. And we got through that without any significant delay. Good for that judge. This judge, however, pretends all kinds of delay. And you think about it, this this will go, you know, I mean, you think first of all, you think does any mileage whatsoever, Chuck, in moving to reconsider and asking her to, you know, clean up her act, clean up this opinion and order? My guess is that evaluation and that decision has already been made. And I tend to agree with it, that trying to get this judge who's trying to shift the focus off of herself onto some court appointed designee. And we have to remember, special masters have no legally binding authority. The only thing they can do is go through everything and make legal recommendations to the court for the court to make its decision. If she can find somebody who will go Trump's way, that shifts it off of her, she can then just say, well, the court finds the special masters recommendations compelling and appropriate and adopts them or doesn't. Well, don't forget that she's got to say, by when he's supposed to do what he's supposed to do, report back, you know, that would be appropriate in any special master appointment. So she could say, I want you to get back to me in two weeks. He's not going to say that. She could say, I want you to get back to me in two months. He's not going to say that. My guess, and I'll be happy to bet lunch on this, it's going to be four months and plus. And then when he's going to get back to her with whatever she tells him to do, which is going to be a waste of time, and then she's going to sit on it for a while before she makes another order. She's going to have to make another order, right? You just said that based on the report of the special master. So I give you another two months on that, maybe more. And by the time we finish, and the thing is right for an appeal to the 11th circuit, a long time has gone by. This is on ice. And one of the horrible things about her decision is she said, you can't investigate on the basis of these documents until this is resolved. Well, that's awful, because that really puts a crimp in their style. You said before the show began, you thought, well, it wasn't that big a crimp. How big a crimp is it? Well, let's start with the point that you just made, is how much does her order block? First of all, there's a substantial number of documents that are highly classified. Clearly, the removal of those is criminal. That doesn't change. And as to those documents, so far as Trump's lawyers have made known, there's no claim been asserted as to executive privilege or attorney client privilege. They're not asserting things that would block all of the documents that would be evidence of criminal conduct from being used. So there's a question as to how much her order can effectively preclude. But remember, Trump's real objective here is to prevent himself from being held criminally liable and accountable before the 2024 elections. As long as he does that, he can get away with anything else in his mind. And as far as he's concerned, he made this clear before his presidency, during his presidency, and since his presidency, anything he thought said or did as president or after that is protected because he was the president. That's his theory. If he gets to be president again, he can confirm that theory, don't you think? Well, that's the question. And we will see to some extent in the November 2022 elections, but certainly much more extensively and clearly in the 2024 elections, how much of that Republican base, the non-maga base, is going to go along with someone who has been proven to have attempted a physical violent overthrow of the election process to keep his office even though he clearly lost by all legal standards. Let me see if I can just put some of those pieces together on the timeline. It seems clear, given the special master of charade, that we're not going to have anything much more happening in Eileen Cannon's court before the 2022 election. It's 60 days away. It's no time at all. And nothing much is going to happen. This is going to be on ice in many ways. I don't think the Department of Justice can actually indict either with or without her decision within 60 days. So we can speculate as to how much trouble he's in, but we won't really see any accountability or even an indictment by the time the 2022 election takes place. On the 2024 election, it's even more interesting because I think that Eileen Cannon's going to be involved in this case with other motions, other issues, other complaints, who knows what, clarifications, if you will, all things that Trump requests. And he's going to try to, you know, and she will be loyal to him, he's going to try to delay that. Then when it's ripe for appeal, the government really has no choice, I think, but to appeal it to the 11th Circuit. The 11th Circuit, as you mentioned early, is a conservative circuit. And there are six out of 11 Trumpers on that circuit. And if they are loyal and the chances are substantial that they're loyal to Trump, it's the South, let's, let's we forget. You know, they're going to sit on it and or rule in favor of Trump. Oh, God, and I haven't had lunch yet. The other aspect is if it goes ultimately to the Supreme Court of the United States, you know, the one that turns on Ginny Thomas, that one, you know, are they going to do anything for the FBI? They're, you know, there's a fair chance their conservative Trumpism is going to rule against the FBI also. And there will be enough acolytism on the Supreme Court that you and I cannot sit here and say with any level of certainty, a Supreme Court will do the right thing on the special master on the search and seizure, you know, on this whole investigation against Trump. In any event, though, putting all that aside, Supreme Court doesn't necessarily move quickly, does it? And by the time you get through a cert process, whatever, by the time you get to oral argument, and by the time you research all the briefs and actually make a decision, could easily be in the throes of the 2024 election. So if what Trump is seeking, and I agree with you, is delay in every form, I think he's going to make it. I think he's all these weird appointments that he made of unqualified, but but loyal judges are going to work in his favor. And I don't think this is going to get resolved by then. And he is effectively going to stave it off. Remember to remember to let's we forget that if the Republicans take the house in November, they might, some people think they will, then the select committee is dead as a doornail. And they may make a report, but I'm not sure it goes anywhere. And it ultimately, it ultimately depends on Merrick Garland, just exactly how strong, how determined he is, don't you think? Because they'll give him a report. And he can start another investigation. But he'll be fighting upstream if Congress is controlled by the Republicans. Well, two points, Jay. One, on the January 6 criminal investigation, Garland already has everything that the House committee developed, together with whatever the DLJ has gathered on its own, and the ability to continue to gather more evidence, whether they'll proceed with criminal investigation on that or not, it remains to be seen. But there isn't anything that would preclude them from doing so for indicting before the 2024 elections. Second, the issue in this particular case, there is a legal issue. And we don't have any reason for confidence that either the 11th Circuit or the presently constituted right wing dominated U.S. Supreme Court will rule favorably. But the issue is really, does national security get priority and outweigh claims of political bias, as the criminal law has traditionally held for many, many years? Or are they going to change that too, as they did Roe v. Wade? That will be interesting to see, because that's the issue at the appellate level. Thank you for raising that. It has actually made it imperative for me to go have lunch now, although I may wind up losing my lunch at lunch. Thank you for this really important discussion, Chuck. Some of these points may or may not be raised by the mainstream media, but I think we have covered a lot of ground here today, and I really appreciate you coming on for this discussion. Always a pleasure, Jay. Thanks for the opportunity. Chuck Crumpton, lawyer par excellence, and also somebody who is really familiar with what's going on. Thank you, Chuck Aloha. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at thinktechhawaii.com. Mahalo.