'Outrageous And Stupid': Legal Experts Excoriate Trump Judge's New Ruling
by Lawrence O'Donnell
MSNBC
Sep 15, 2022
Legal experts Neal Katyal, Andrew Weissmann and Bradley Moss join MSNBC’s Lawrence O’Donnell to discuss why a Trump-appointed judge’s ruling that classified docs seized from Donald Trump’s Florida home are not classified is “the end of the rule of law.”
Transcript
[Lawrence O'Donnell] ANDREW WEISSMANN, LET ME BEGIN WITH YOU. I'M GOING TO GIVE EACH OF YOU JUST AN OPEN MIC TO GIVE US WHATEVER YOU ARE THINKING ABOUT WHAT YOU HAVE READ TONIGHT FROM THIS JUDGE.
>> [Andrew Weissmann] WELL, LAWRENCE, THERE IS SO MUCH TO CHOOSE FROM. I AM CERTAINLY GOING TO LEAVE A LOT ON THE TABLE FOR NEAL AND BRAD, BECAUSE THERE ARE SO MANY OUTRAGEOUS AND STUPID, FRANKLY, PIECES OF THIS DECISION. IT IS REMARKABLE BECAUSE YOU NEVER THOUGHT THAT [THERE COULD BE] SOMETHING WORSE THAN HER LAST DECISION, AND THIS ACTUALLY TOPPED IT. BUT LET ME FOCUS ON SOMETHING I THOUGHT WAS PARTICULARLY IMPORTANT, AND THEN ALSO GO TO SOMETHING THAT IS MAYBE POSITIVE. SO, ONE OF THE THINGS THAT I THOUGHT WAS PARTICULARLY EGREGIOUS IS THAT SHE COMES RIGHT OUT AND SAYS, AT THE END OF HER DECISION, THAT SHE IS GIVING EXTRA WEIGHT TO TRUMP BECAUSE HE WAS THE PRESIDENT. SHE JUST COMES RIGHT OUT AND SAYS IT. IF ANYONE WANTS TO SEE THE END OF THE RULE OF LAW, IT IS, JUST READ THE DECISION. IF JOHN LOCKE FAMOUSLY SAID, "WHERE LAW ENDS, TYRANNY BEGINS," YOU READ THIS DECISION AND WHAT SHE SAID, AND SHE IS ADMITTING THAT A POSITION THAT THE PERSON HELD IS GOING TO CARRY EXTRA WEIGHT IN TERMS OF HOW HE IS TREATED IN COURT. THAT IS A VIOLATION OF HER OATH AS A JUDGE, TO TREAT EVERYONE THE SAME. I FOUND THAT JUST SO SHOCKING. AND I WILL LEAVE TO NEAL AND TO BRAD, ALL SORTS OF OTHER THINGS, BUT NOW WE TURN TO SOMETHING POSITIVE, WHICH YOU MENTIONED, WHICH, IS BECAUSE SHE IS ALSO, FRANKLY, I THINK, A CHICKEN -- SHE COULD BE DOING ALL THIS REVIEW HERSELF, BUT SHE HAS DECIDED TO HAVE A SPECIAL MASTER. WELL, THAT IS A BIG PLUS FOR THE DEPARTMENT HERE, BECAUSE RAYMOND DEARIE IS A REAL STEP UP, IN A COMPLETE DIFFERENT LEAGUE THAN THIS JUDGE. AND SO BY HER SUBCONTRACTING OUT HER OWN DUTIES AND ACTUALLY, AND I THINK SHE IS THINKING, "LET HIM BE THE FALL GUY; LET HIM HAVE TO SAY THAT DONALD TRUMP IS WRONG," BECAUSE THEN HER HANDS ARE SOMEWHAT CLEAN. I THINK THAT IS WHAT IS GOING ON HERE. AND IT'S REALLY DISGRACEFUL, THAT THAT IS THE WAY SHE IS APPROACHING HER JOB. BUT FROM THE DEPARTMENT OF JUSTICE'S POINT OF VIEW, I THINK THAT THERE IS A LOT OF HOPE THAT THEY SHOULD HAVE, GIVEN JUDGE DEARIE'S TRACK RECORD, AND HIS COMMON SENSE AND INTEGRITY.
>> [Lawrence O'Donnell] NEAL KATYAL, GO.
>> [Neal Katyal] SO, LAWRENCE, YOU'VE HEARD OF OLIVER WENDELL HOLMES, JOHN MARSHALL, RUTH BADER GINSBURG. THIS IS LIKE THE POLAR OPPOSITE OF THEM. AND WE USED TO SAY AT THE SOLICITOR GENERAL'S OFFICE THAT SOME APPEALS WIRTE THEMSELVES. THIS IS ON., AND IT IS A TERRIBLE, TERRIBLE ABUSE OF OUR LEGAL SYSTEM, FOR REASONS THAT ANDREW JUST MENTIONED A MOMENT AGO. IT WAS ALSO ENTIRELY UNNECESSARY. THE JUSTICE DEPARTMENT GAVE THIS JUDGE AN OPPORTUNITY TO WALK BACK HER NOT-SO-EARLIER OPINION. AND INSTEAD, SHE CHOSE TO DIG HER HEELS IN. I MEAN, BILL BARR CALLED THIS REQUEST FOR A SPECIAL MASTER, "A CROC OF S-WORD". AND WHILE I THOUGHT THAT WAS KIND OF MEAN TO CROCS, THIS OPINION IS LIKE A CROC OF CROC OF THE S-WORD. AND THE JUSTICE DEPARTMENT GAVE HER A LIFELINE, AND SHE JUST BLEW IT OFF. AND I CAN TELL, YOU THIS DECISION SHOULD BE REVERSED WITHIN A WEEK. AND THE JUSTICE DEPARTMENT GAVE HER THAT SENSIBLE PROPOSAL SAYING, "LOOK, THERE'S 100 DOCUMENTS. HE HAS NO, TRUMP HAS NO PLAUSIBLE CLAIM TO OWNERSHIP OF THESE DOCUMENTS. THEY ARE OBVIOUSLY GOVERNMENT DOCUMENTS. AT LEAST SEPARATE THAT OUT." SHE HAS NO REAL ARGUMENT AGAINST THAT. SO IF I'M THE SOLICITOR GENERAL, WHAT I WOULD DO IS GO TO THE 11TH CIRCUIT TONIGHT, OR TOMORROW MORNING, SEEK AN EMERGENCY STAY OF THIS DECISION, AND I WAS ALWAYS RELUCTANT TO SEEK EMERGENCY STAYS WHEN I WAS AT THE JUSTICE DEPARTMENT, BUT IN RARE CIRCUMSTANCES YOU WOULD. THIS IS THAT CIRCUMSTANCE. YOU STAY THIS RULING ABOUT THE HUNDRED OR SO DOCUMENTS. YOU LET THE CRIMINAL INVESTIGATION PROCEED. AND THEN YOU APPEAL THE ENTIRE BALL OF WAX, WHICH IS CRAZY, JUST SLIGHTLY LESS CRAZY THAN THE OTHER PARTS OF HER DECISION. AND LET ME JUST ISOLATE ONE REASON WHY I THINK THAT STRATEGY MAKES SENSE. THERE IS A WHOLE THING IN THE LAW ABOUT IRREPARABLE HARM, WHICH IS, IF THIS INVESTIGATION GOES FORWARD, WHO IS HARMED? AND THE JUSTICE DEPARTMENT PROVIDED THIS AFFIDAVIT THAT SAID "JUDGE, YOUR SPECIAL MASTER RULING IS GOING TO ENDANGER NATIONAL SECURITY," AND SHE SAYS, IN HER RULING TONIGHT, "WELL, I JUST DON'T SEE THAT," BASED ON I GUESS, HER EXTENSIVE NATIONAL SECURITY EXPERIENCE. LET ME JUST SAY IN A CONCRETE WAY, EXPLAIN HOW THIS MATTERS. BECAUSE BEFORE I WAS ACTING SOLICITOR GENERAL, I WAS NATIONAL SECURITY ADVISER FOR THE JUSTICE DEPARTMENT. SOME OF THESE DOCUMENTS ARE MARKED WITH "HCS", THAT'S "HUMAN SOURCE MATERIAL." AND WHAT THAT IS, IS LIKE SOMEONE WHO IS A SPY, WHO IS MAYBE WORKING IN A FOREIGN GOVERNMENT SPYING. SOMETHING LIKE THAT. THEY ARE IN THE FIELD. NOW, IF YOU'RE THAT PERSON IN THE FIELD RIGHT NOW, YOU HAVE NO IDEA WHETHER THOSE DOCUMENTS THAT TRUMP BROUGHT TO HIS GOLF CLUB ARE ABOUT YOU, AND WHO GOT TO SEE THOSE DOCUMENTS. IF YOU'RE THAT PERSON, YOU'VE GOT TO BE FREAKING OUT RIGHT NOW. NOW WHAT KIND OF INTELLIGENCE DO YOU THINK WE'RE GOING TO BE GETTING FROM THAT PERSON IN THE INTERIM, WHILE WE WAIT FOR THE SPECIAL MASTER TO REACH HIS DECISION? AND WOULDN'T WE WANT TO REASSURE EVERYONE ELSE IN THE FIELD THAT, YOU KNOW, "LOOK, THESE DOCUMENTS AREN'T ABOUT YOU, THEY'RE ABOUT SOMETHING ELSE. AND YOU DON'T HAVE TO WORRY." WOULDN'T YOU WANT THAT ASSESSMENT TO HAPPEN RIGHT NOW? SHE JUST BLOWS IT OFF! EASY APPEAL, EASY STAY.
>> [Lawrence O'Donnell] BRADLEY MOSS, YOU'VE SERVED AS A DEFENCE CRIMINAL ATTORNEY IN CLASSIFIED DOCUMENTS CASES. THE PART OF THE ORDER THAT IS CURIOUS TO ME IS, WHEN THE JUDGE ORDERS THAT THE SPECIAL MASTER WILL SHOW ALL OF THE CLASSIFIED DOCUMENTS TO DONALD TRUMP'S LAWYER. NONE OF THEM HAVE EVER SEEN A CLASSIFIED DOCUMENT. NONE OF THEM HAVE ANY SECURITY CLEARANCES. HOW IS THAT DONE IN THAT SITUATION?
>> [Bradley Moss] YEAH, SO, THEY'RE GOING TO HAVE TO GET SECURITY CLEARANCE. THEY ARE GOING TO HAVE TO GO THROUGH THE PROCESS, WHICH CAN BE EXPEDITED, TO BE FAIR. THEY'LL HAVE TO FILL OUT THE STANDARD FORM 86. IT WILL GET A QUICK RUN THROUGH ASSUMING NO IMMEDIATE RED FLAGS SHOW UP. THEY WILL REVIEW AND INSPECT THE DOCUMENTS IN A SECURE FACILITY, IN THE PRESENCE OF THE SPECIAL MASTER. THEY WON'T BE ABLE TO TAKE ANYTHING OUT. ANY NOTES THEY TAKE WILL HAVE TO BE REVIEWED FOR DE- CLASSIFICATION, AND IF THEY ARE CLASSIFIED, THEY WILL STAY IN THE CUSTODY OF THE SPECIAL MASTER. BUT HERE IS THE PART THAT MAKES NO SENSE TO ME WHEN I AM READING THIS SPECIAL MASTER ORDER. WHAT IS THE SPECIAL MASTER GOING TO DO WITH THESE MARKED DOCUMENTS WITH CLASSIFICATION MARKS? HE'S GONNA LOOK AT THEM, HE'S GOING TO SAY OKAY, I SEE TOP SECRET, SCI, WITH HCS AS, NEIL SAID,.WHAT DO YOU WANT ME TO DO WITH THAT? THAT'S PROPER CLASSIFICATION MARKING. ALL DONALD TRUMP CAN THEORETICALLY SAY IS, "WELL, I VERBALLY DECLASSIFIED THEM." AND LET'S ASSUME, FOR THE MOMENT, HE GETS KASH PATEL, AND WHOEVER, TO SUBMIT A SWORN DECLARATION SAYING "YES, I STOOD THERE WHILE HE DECLASSIFIED THEM VERBALLY." SO WHAT? THE RELEVANT STATUTES DON'T CARE. THE ESPIONAGE ACT DOESN'T CARE! THE TWO OBSTRUCTION PROVISIONS DO NOT CARE IF THE DOCUMENTS WERE STILL CLASSIFIED. THEY STILL HAVE CLASSIFICATION MARKINGS. HE JERKED DOJ AROUND, AS NO OTHER THAN BILL BARR SAID. AND HE DIDN'T TURN OVER, AND MADE HIS LAWYERS LIE TO THE FBI. WHETHER OR NOT HE VERBALLY, OR IN HIS MIND, WHILE PLAYING GOLF, DECLASSIFIED THESE RECORDS, IS ULTIMATELY GOING TO BE IRRELEVANT. AND I DON'T KNOW WHAT THE SPECIAL MASTER IS SUPPOSED TO SAY THERE OTHER THAN "THESE CLASSIFICATION MARKINGS ARE VALID." END OF DISCUSSION!