DOJ Has No Option But To Appeal’: Brandon Van Grack
by Nicole Wallace
MSNBC
Sep 16, 2022
Former senior national security official at the Department of Justice Brandon Van Grack reacts to Judge Aileen Cannon yet again denying the Department of Justice access to roughly 100 classified documents
Transcript
[Nicole Wallace] TAKE TRUMP OUT OF IT JUST FOR A SECOND. WHAT IS CANNON GETTING WRONG ABOUT THE MATERIAL THAT'S BEEN SEIZED?
>> [Brandon Van Grack] WELL, PART OF IT IS IN TERMS OF HER AUTHORITY TO DETERMINE WHAT THAT MATERIAL IS. IT IS IN TERMS OF DEFINING WHAT IS CLASSIFIED INFORMATION, WHAT IS NATIONAL SECURITY INFORMATION, THAT SHOULD BE RESTRICTED, THAT SHOULD BE CONTROLLED. THAT'S THE PURVIEW OF THE PRESIDENT OF THE UNITED STATES, BECAUSE HE OR SHE IS COMMANDER IN CHIEF. AND THE SUPREME COURT HAS CODIFIED THAT. THAT'S SORT OF A LONG-STANDING PRINCIPLE. AND IN HER OPINION, SHE CHALLENGES THE REPRESENTATION OF THE DEPARTMENT OF JUSTICE AND SAYS ULTIMATELY, "I DON'T KNOW IF I SHOULD TRUST THIS REPRESENTATION AND, THEREFORE, WE SHOULD PROVIDE THIS CLASSIFIED INFORMATION TO A SPECIAL MASTER. AND ULTIMATELY, AFFORD THIS JUDGE THE ABILITY TO DETERMINE WHAT IS CLASSIFIED." AND THAT'S JUST NOT THE ROLE OF THE JUDICIAL BRANCH. THAT'S NOT THE ROLE OF THIS JUDGE.
>> [Nicole Wallace] AND I SAID TAKE TRUMP OUT OF IT FOR A SECOND, BECAUSE I THINK, LIKE EVERYTHING INVOLVING TRUMP, IT MUDDLES EVERYTHING. BUT I THINK IT'S AN IMPORTANT DISTINCTION. YOU'RE SAYING CLASSIFIED INFORMATION BELONGS TO THE GOVERNMENT THAT CLASSIFIED IT. AND WHETHER TRUMP DECLASSIFIED CERTAIN THINGS OR NOT, IS IRRELEVANT TO WHAT HAS BEEN SEIZED. TALK ABOUT THE CHAIN OF CUSTODY NOW BEFORE IT COULD EVEN GET BACK INTO THE HANDS OF THE GOVERNMENT.
>> [Brandon Van Grack] RIGHT NOW THE GOVERNMENT STILL HAS THAT INFORMATION.
>> [Nicole Wallace] BUT CAN'T USE IT.
>> [Brandon Van Grack] IT CAN'T -- WELL, IT CAN'T USE IT FOR ITS CRIMINAL INVESTIGATION, AND THIS IS WHERE THE JUDGE SORT OF SPLIT HAIRS, AND SAID, "FOR THE NATIONAL SECURITY ASSESSMENT, TO DETERMINE WHAT DAMAGE HAS BEEN CAUSED, IT CAN BE USED." BUT THE GOVERNMENT'S POINT IS, YOU CANNOT SEPARATE THAT FROM THE CRIMINAL INVESTIGATION. WHAT THE FBI IS DOING RIGHT NOW IS ESSENTIAL TO DETERMINING WHAT DAMAGE MAY HAVE OCCURRED, AND HOW TO -- HOW TO MITIGATE IT. THEY NEED TO KNOW WHO MAY HAVE HAD ACCESS TO THAT CLASSIFIED INFORMATION. WHERE WAS IT STORED. THAT IS -- THAT IS ESSENTIAL, BECAUSE DAMAGE OCCURS IF THIS CLASSIFIED INFORMATION WAS -- SOMEONE HAD UNAUTHORIZED ACCESS TO IT. AND THE MORE SPECIFICITY THEY HAVE, THE BETTER THEY CAN DETERMINE THE DAMAGE, THE BETTER THEY CAN MITIGATE IT. AND RIGHT NOW THE GOVERNMENT DOES NOT HAVE THE ABILITY TO MAKE THAT DETERMINATION.
>> [Nicole Wallace] WHEN YOU WERE AT DOJ, THIS CASE WOULD HAVE BEEN SOMETHING YOU WOULD HAVE BEEN INVOLVED IN. HAVE THEY ARGUED THIS AS PLAINLY AS YOU THINK THEY CAN? WHAT IS THE BEST ARGUMENT TO MAKE?
>> [Brandon Van Grack] I THINK THE LAST TWO FILINGS THAT THE DEPARTMENT OF JUSTICE HAS MADE, IT'S ELEGANT IN TERMS OF ITS TONE AND SUBSTANCE, AND WHAT YOU HAVE HERE IS, EVEN THOUGH WE'RE TALKING ABOUT A SPECIAL MASTER, THEY HAVE SUBSTANTIALLY NARROWED THE QUESTION HERE. AND THAT'S WHAT MADE, TO USE YOUR WORDS, THE DECISION LAST NIGHT "ASTONISHING." THEY HAVE NARROWED IT IN SAYING, "EVEN THOUGH WE DISAGREE WITH THE IMPOSITION OF A SPECIAL MASTER -- IT'S UNNECESSARY, UNREASONABLE -- PUTTING THAT ASIDE, YOU CANNOT TELL THE EXECUTIVE BRANCH, AND BY EXTENSION THE PRESIDENT OF THE UNITED STATES, THEY CANNOT CONTROL ACCESS TO CLASSIFIED INFORMATION. THAT THEY" -- REMEMBER, THE SPECIAL MASTER, THE PURPOSE OF THE SPECIAL MASTER IS TO DETERMINE, "IS THERE INFORMATION THAT THE DEPARTMENT OF JUSTICE AND FBI SHOULD NOT HAVE." FOR EXAMPLE, ATTORNEY-CLIENT INFORMATION, SENSITIVE INFORMATION BETWEEN ATTORNEY AND HIS OR HER CLIENT.
>> [Nicole Wallace] TRUMP AND RUDY OR TRUMP AND WHOEVER --
>> [Brandon Van Grack] YOU KNOW, EVEN IN -- YOU'RE TAKING AWAY TRUMP FROM THE CONVERSATION. LET'S TAKE TRUMP AWAY FROM THE CONVERSATION. THE POINT IS THERE ARE COMMUNICATIONS BETWEEN AN ATTORNEY AND HIS OR HER CLIENT. THE GOVERNMENT SHOULD NOT HAVE ACCESS TO, AND A SPECIAL MASTER IS SUPPOSED TO DETERMINE THIS INFORMATION SHOULD NOT BE PROVIDED. AND THAT'S WHAT MAKES THIS DECISION SO ASTONISHING, WHICH IS IT SETS UP THE POSSIBILITY THAT THE SPECIAL MASTER AND THE JUDGE COULD SAY, "THE DEPARTMENT OF JUSTICE AND THE EXECUTIVE BRANCH CANNOT HAVE ACCESS TO THIS CLASSIFIED INFORMATION. I MEAN, IT IS -- IT'S AN UNTENABLE CIRCUMSTANCE. AND THE REASON WE'RE THERE, IS BECAUSE THE DEPARTMENT OF JUSTICE HAD NARROWED THE SCOPE OF THEIR REQUEST, AND PUT THE JUDGE IN A SITUATION TO PRESUMABLY NOT REACH THIS DECISION. BUT IT'S THE REASON WHY I THINK WE'RE GOING TO SEE AN APPEAL, YOU KNOW, ANY MINUTE NOW.
>> [Nicole Wallace] WHAT DO YOU THINK WILL HAPPEN ON APPEAL?
>> [Brandon Van Grack] WELL, I'M NOT NEAL KATYAL, SO I DON'T WANT TO TAKE TOO MANY STEPS AHEAD. I THINK WE WILL SEE THE DEPARTMENT OF JUSTICE SEEKING AN IMMEDIATE EMERGENCY APPEAL AS QUICKLY AS POSSIBLE. AND I THINK IN DOING SO, WE'RE PROBABLY GOING TO CONTINUE TO SEE A NARROWING OF THE ISSUE, AS OPPOSED TO A CHALLENGING THE PRINCIPLE OF A SPECIAL MASTER BEING OPPOSED. AND THEY WOULD HAVE THE RIGHT TO DO THAT, NARROWING IT TO JUST THE CLASSIFIED DOCUMENTS, JUST THIS LIMITED PRINCIPLE, BECAUSE I THINK IT IS -- AS MEMBERS OF THE EXECUTIVE BRANCH, IT'S NOT TENABLE.
>> [Nicole Wallace] WHAT'S NOT TENABLE? I WANT TO MAKE SURE I UNDERSTAND. WHAT'S NOT TENABLE IS A PRIVATE CITIZEN SAYING IT'S MINE, AND YOU CAN'T HAVE IT BACK, TO PROCEED WITH THE DAMAGE ASSESSMENT, OR PROCEED WITH THE CASE?
>> [Brandon Van Grack] I ACTUALLY --
>> [Nicole Wallace] WHAT I'M TRYING TO KNOW IS, WHY DO YOU HAVE EVERYONE, YOU KNOW, EVERYONE FROM THE LEFT, TO THE CENTER, TO JOHN YOO AND BILL BARR SAYING THAT TRUMP'S CASE IS GARBAGE?
>> [Brandon Van Grack] YOU'RE TALKING ABOUT A PRIVATE CITIZEN. I'M ACTUALLY SAYING THE JUDICIAL BRANCH IS NOT IN A POSTION, SHOULD NOT BE IN A POSITION, TO TELL THE EXECUTIVE BRANCH AND THE PRESIDENT HOW TO CONTROL ACCESS TO CLASSIFIED MATERIAL. THAT IS THE PURVIEW OF THE EXECUTIVE BRANCH. AGAIN, THAT'S THE REASON WHY THE DEPARTMENT OF JUSTICE HAS NO OPTION BUT TO APPEAL THIS. BECAUSE THERE ARE PRINCIPLES HERE THAT GO FAR BEYOND WHAT IS HAPPENING IN THIS CASE. SO I THINK YOU'RE GOING TO SEE A VERY VIGOROUS DEFENSE OF PRESERVING THE EXECUTIVE BRANCH'S ABILITY TO PROTECT AND CLASSIFY INFORMATION.
>> [Nicole Wallace] THAT'S INTERESTING. THAT'S A FIRST SORT OF WINDOW INTO UNDERSTANDING WHY YOU HAVE THE FAR RIGHT, LEGAL MINDS LIKE JOHN YOO AND BILL BARR, MAKING THE SAME ARGUMENT THAT SOME ON THE LEFT ARE. IS THAT THE PRINCIPLE?
>> [Brandon Van Grack] WHAT'S REMARKABLE IS LIKE, THERE IS NO RIGHT AND LEFT HERE.
>> [Nicole Wallace] RIGHT.
>> [Brandon Van Grack] THESE ARE NOT LEGAL PRINCIPLES THAT ARE IN DISPUTE. I MEAN, THERE'S A FAMOUS CASE FROM THE 1980s WHERE THE SUPREME COURT EXPLAINED ALL THIS. AND FOR YEARS, FOR DECADES, INCLUDING FILINGS I DID, EVERYONE JUST CITES TO THIS ONE CASE, BECAUSE IT HAS TO BE TRUE. AND I'LL SORT OF MAKE A FURTHER EXTENSION. THERE'S A PIECE IN THE OPINION WHERE THE JUDGE CHALLENGES THE REPRESENTATION OF THE DEPARTMENT OF JUSTICE WHEN THE DEPARTMENT OF JUSTICE SAYS THAT IT WOULD CAUSE IRREPARABLE HARM TO BE COMPELLED TO DISCLOSE THIS CLASSIFIED INFORMATION TO THE SPECIAL MASTER, BECAUSE IT'S HIGHLY CLASSIFIED.
>> [Nicole Wallace] RIGHT.
>> [Brandon Van Grack] AND THE EXECUTIVE BRANCH KNOWS WHAT IS CLASSIFIED. THEY KNOW -- THE JUDGE AND THE SPECIAL MASTER HAS NO WINDOW INTO THAT, HAS NO BACKGROUND. IT HAS TO BE THAT THE EXECUTIVE BRANCH CAN DETERMINE WHAT IS SENSITIVE, AND WHAT CAN BE DISCLOSED. AND THE JUDGE SAYS, "THAT POSITION IS MERITLESS."
>> [Nicole Wallace] HOW DID WE GET HERE? HOW DID -- HOW DID TRUMP END UP BEFORE THE ONE JUDGE THAT SEES THIS VERY BLACK AND WHITE, AS YOU JUST SAID, NONPARTISAN, NONPOLITICAL ISSUE ABOUT ACCESS TO CLASSIFIED INFORMATION, IN SUCH A TRUMP-FRIENDLY MANNER?
>> [Brandon Van Grack] IT IS NOT UNCOMMON FOR LITIGANTS TO TRY TO FIND FAVORABLE COURTS, AND FOR THE DEPARTMENT OF JUSTICE TO CHARGE CASES IN FAVORABLE COURTS. I THINK MORE SO THAN EVEN DETERMINING HOW -- LIKE WAS THIS STRATEGICALLY DONE AND HOW. WE'RE AT A POINT RIGHT NOW WHERE THERE ARE REALLY SERIOUS CONCERNS IN TERMS OF THE SEPARATION OF POWERS. THERE ARE REALLY SERIOUS CONCERNS ABOUT NATIONAL SECURITY BASED ON THIS OPINION. AND SO IT DOESN'T MATTER WHO SAID IT. IT DOESN'T MATTER WHO APPOINTED THAT? THE DEPARTMENT OF JUSTICE, AND BY EXTENSION ALL OF US, WHO NEED THIS INVESTIGATION TO BE CONDUCTED, THOROUGHLY AND COMPLETELY, AND QUICKLY, THIS OPINION, THIS ORDER, THIS LIMITATION, IT JUST CANNOT CONTINUE. IT HAS TO BE APPEALED AND OVERTURNED.
>> [Nicole Wallace] LET'S PULL TRUMP BACK INTO THE CONVERSATION. WHAT DOES IT SAY -- OBVIOUSLY IF YOU'RE STILL IN THE DEPARTMENT, AND IF YOU WERE WORKING ON THIS CASE YOU COULDN'T WEIGH IN ON THIS. BUT SORT OF INFORMED ANALYSIS. WHAT IS YOUR SENSE OF TRUMP'S END GAME? HE JUST WANTS TO HANG ON TO CLASSIFIED STUFF INDEFINITELY TO SHOW IT TO HIS FRIENDS?
>>[ Brandon Van Grack] YOU KNOW, I DON'T -- I DON'T THINK THE DEPARTMENT OF JUSTICE RIGHT NOW IS EVEN FOCUSING ON THE END GAME, BECAUSE IN TERMS OF THE NATIONAL SECURITY ISSUE, IT DOESN'T MATTER. WHAT MATTERS IS THAT FOR 19 MONTHS, HUNDREDS OF DOCUMENTS, OF SOME OF THE MOST HIGHLY CLASSIFIED AND SENSITIVE INFORMATION, HAVE BEEN UNSECURED AND UNMONITORED AND UNCONTROLLED. THAT IN AND OF ITSELF IS A SIGNIFICANT NATIONAL SECURITY ISSUE, EVEN IF THE MOTIVATION WAS SLOPPY RECORDKEEPING. EVEN IF IT IS THE MOST GENERAL --
>> [Nicole Wallace] YOU'RE SAYING, TAKE THE MOTIVE AND END GAME OUT, THE ALLEGED CRIMES HAVE ALREADY TAKEN PLACE?
>> [Brandon Van Grack] WHETHER THEY'RE CRIMES OR NOT, FROM A NATIONAL SECURITY PERSPECTIVE, IT IS -- WHILE IT'S RELEVANT, EVEN REGARDLESS OF WHAT THOSE MOTIVES ARE, IT IS SIGNIFICANT AND IT IS SERIOUS. AND for THE CHARGES THAT ARE BEING CONTEMPLATED, IT IS COMPLETELY IRRELEVANT WHAT THE MOTIVE IS. IN TERMS OF THE ESPIONAGE ACT, IT IS THE RETENTION, SOLELY THE RETENTION OF THAT INFORMATION THAT IS UNLAWFUL. THERE'S NOTHING -- THERE ARE LAWS THAT MAKE IT UNLAWFUL TO DISCLOSE AND TRANSMIT. THE DEPARTMENT OF JUSTICE HAS NOT INDICATED THAT THAT'S WITHIN THE PURVIEW OF THIS INVESTIGATION AT THIS TIME.
>> [Nicole Wallace] THEY'VE SENT A LOT OF TEA LEAVES, TEA LEAVES ISN'T THE RIGHT WAY TO DESCRIBE IT -- THE DEPARTMENT DOESN'T WRITE IN TEA LEAVES. BUT THERE'S A LOT OF PUBLIC-FACING EVIDENCE ABOUT OBSTRUCTION. HOW WOULD YOU EVALUATE WHAT'S IN THE PUBLIC SPHERE ABOUT THE OBSTRUCTION?
>> [Brandon Van Grack] THE OBSTRUCTION IS INEXTRICABLY LINKED TO THE FACT THAT RIGHT NOW WE HAVE THIS CRIMINAL INVESTIGATION. IT'S IMPORTANT TO CONTINUE TO TAKE A STEP BACK. THE FORMER PRESIDENT OF THE UNITED STATES HAD CLASSIFIED INFORMATION FOR OVER A YEAR, THEN TURNED IT OVER TO THE ARCHIVES. AND EVEN THOUGH WE KNOW RIGHT NOW THAT THE FBI, THERE WAS A REFERRAL MADE IN THE OPEN INVESTIGATION, I DON'T THINK WE WOULD BE TALKING ABOUT THIS IF ALL THE CLASSIFIED INFORMATION WAS SIMPLY PROVIDED TO THE DEPARTMENT OF JUSTICE THEN. AND THEN IN JUNE THE DEPARTMENT OF JUSTICE GOES DOWN TO MAR-A-LAGO, HAS A SUBPOENA, AND COLLECTS ADDITIONAL CLASSIFIED INFORMATION. IF ALL OF THE CLASSIFIED INFORMATION WAS PROVIDED AT THAT TIME, I DON'T THINK WE WOULD BE TALKING ABOUT CRIMINAL CHARGES. WE WOULD NOT BE HAVING THIS DISCUSSION. BUT SOMETHING HAPPENED, AND THAT'S WHERE THE OBSTRUCTION COMES INTO PLAY. THERE WERE REPRESENTATIONS MADE TO THESE -- THESE ATTORNEYS AND THESE AGENTS FROM THE DEPARTMENT OF JUSTICE. THEIR MISSION, THEIR -- THEY ARE TASKED TO PROTECT CLASSIFIED INFORMATION. THIS IS WHAT THEY DO. THIS IS -- AND THE OBSTRUCTIVE ELEMENT, IT WASN'T JUST OBSTRUCTING AN INVESTIGATION. LIKE SORT OF A -- THAT WAS, BUT IT WAS OBSTRUCTING AN INVESTIGATION TO ENSURE THAT CLASSIFIED INFORMATION THAT COULD DAMAGE NATIONAL SECURITY WAS OBTAINED AND ANY DAMAGE RECTIFIED. THAT'S THE OBSTRUCTIVE ACT. AND SO IT REALLY ELEVATES, I THINK, THE CONCERN. AND REALLY THE LEVEL OF SERIOUSNESS OF THE CONDUCT WE'RE TALKING ABOUT.
>> [Nicole Wallace] WHEN YOU LOOK AT THE PUBLIC-FACING EVIDENCE OF OBSTRUCTION, DO YOU SEE THINGS THAT A NORMAL PERSON WOULDN'T? I MEAN, DO YOU SEE THAT THERE'S SOMEBODY COOPERATING THAT HAD ACCESS TO THIS MISHANDLING OF CLASSIFIED DOCUMENTS? DO YOU SEE THAT THERE'S A FLOW OF INFORMATION TO DOJ?
>> [Brandon Van Grack] I WISH I COULD SAY I KNEW WHAT, YOU KNOW, REDACTED PARAGRAPH 65 REFERRED TO.
>> [Nicole Wallace] ME, TOO.
>> [Brandon Van Grack] I THINK MORE TO THE POINT, I THINK WHAT IT SHOWS THAT THERE ARE CERTAINLY KEY PEOPLE WHO ARE, IN FACT, COOPERATING, KEY WITNESSES WHO ARE PARTICIPATING. AND I THINK WHEN YOU TALK ABOUT SORT OF THE END GAME, WHAT THIS LOOKS LIKE, REALLY THE ULTIMATE QUESTION IS GOING TO BE WHO IS -- WHO WITH DIRECT KNOWLEDGE OF WHAT HAPPENED TO THIS INFORMATION, WHO HANDLED THE INFORMATION, WHO DIRECTED THAT CERTAIN INFORMATION BE PROVIDED TO THE ARCHIVES AND THE DEPARTMENT AND WHO DIDN'T -- IF THOSE INDIVIDUALS HAVEN'T, WITH THAT KNOWLEDGE, COOPERATED AND PARTICIPATED, THAT'S WHEN YOU WOULD SEEK CRIMINAL CHARGES.