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Major Legal Win for President Trump

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
The Truth Network Radio
September 6, 2022 3:15 pm

Major Legal Win for President Trump

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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September 6, 2022 3:15 pm

A federal judge yesterday granted President Trump's request for an independent special master. The special master will be a third-party assigned to review evidence seized by the FBI in their raid on Trump's Mar-a-Lago home that may be covered by executive privilege or attorney-client privilege. Jay, Jordan, and the Sekulow team break down the ruling and what it means for the case moving forward. This and more today on Sekulow.

Sekulow Radio Show
Jay Sekulow & Jordan Sekulow
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Brian Kilmeade

Breaking news major legal win for President Trump. Keeping you informed and engaged. Now, more than ever, this is Sekulow. We want to hear from you. Share and post your comments or call 1-800-684-3110.

And now your host, Jordan Sekulow. And what is, I think, a bigger victory for President Trump that has really actually been reported so far? This happened yesterday, so again on Labor Day, when not a lot of people obviously are watching the news or analyzing the news. But the judge and the case in Florida granted the Trump legal team's request for a special master. And what this does is more significant than even the special master itself because of where the FBI and Department of Justice and the investigation is.

There's a lot to break down here. We want to take your phone calls on it, help you through this continuing complicated legal process at 1-800-684-3110. Because this is a bigger deal than the media is reporting. And also some of the facts that are now, they're not allegations, but they're in the document themselves that we've got from the Department of Justice of how the FBI did not handle these documents correctly in the first place.

They did not. In fact, as we will get to when we break this down for you, documents that were noted as privileged, either attorney-client privilege, and probably in that case attorney-client privilege because they didn't even think executive privilege applied. The judge takes a very different view. But I will tell you this, and this is what I think is interesting about this, is the fact that that information that was privileged was shared with the investigators.

Which is exactly why you have a taint team to not do that. We're going to get into the specifics of this. But they actually showed the information to the investigators or gave them the information on at least two occasions. But let me start with what the judge said here. The judge said that you had to be mindful of the need to ensure at least, she said, the appearance of fairness and integrity under the extraordinary circumstances that were presented. So the court authorized the appointment of a special master to review the seized property for personal items and documents and potential privilege subject to both attorney-client and or executive privilege.

The government argued that there should be no special master review of executive privilege material. That was material that the President may have had when he was President. And this judge said, nope, that issue has not been addressed and finally adjudicated by the Supreme Court yet. There's enough there to say you can't do that. They also stopped the government from utilizing this information for the purposes of their investigation.

So they can continue to investigate, but what they can't do is take the information they gathered from this search and use it in a grand jury proceeding or anything else. So that's kind of the scope of what's happening here. I'm going to get into the specifics because, folks, some of this, I got to tell you, is pretty breathtaking. The fact that the government, once again, cannot get even this right.

This shows you how bad this is. Can I give a little – okay, so I went through the order page by page. If you get to pages 14, 15, 16, this is what – I'm going to read you this because, folks, this shows you how dangerous what has happened here really is and unprecedented. So it says that the judge says, as reflected in the privilege review team's report – they give a log of the privileged documents – they said that the investigative team has already been exposed to potentially privileged material. And then she says, without delving into the specifics, on at least two instances in which members of the investigative team were exposed to material that was then delivered to the privileged team and following another review designated as potentially privileged. She then says, even accepting the government's premise – and I'll get into what that premise is in the next segment – she says, there is no explanation how qualifying material ended up in the hands of the investigative team when it should have been maintained by the taint and filter team. That is the critical part of this, folks, and that's why this is a major victory for the President and his lawyers, the former President and his lawyers, on this. Again, stops the investigation as it relates to documents, doesn't stop the investigation as it relates to overall things. Yeah, so I think that is probably the most significant part within, is that already an FBI admission, they don't get into great detail, as the judge notes, that they've messed this process up. Yes, they've already – remember, their whole argument was, we're already done with the process.

But maybe going that fast and rushing through is the reason why there's now a special master being appointed. We'll be right back on Secular. Alright, welcome back to Secular. We are taking your phone calls, too, on this 1-800-684-3110. That's 1-800-684-3110, because I usually would not play Andrew McCabe's take on anything the FBI is up to, but he does admit when they lose what it means. So take a listen.

This is CNN. Andy McCabe on the significance of the special master. Again, this just happened yesterday, folks, so you might just be hearing this news and diving into some of the legal processes behind this and what it means, but take a listen to this. Bottom line, Andrew, is this a win for Trump, in your view?

Oh, no question. It's a huge win for Trump, for primarily two reasons, right? His strategy here, so strategically, his strategy is to play for delay, and he gets that, either with the appointment of the special master or potentially an even much larger delay if the government decides to appeal this ruling. The much larger delay there is you start getting into some highly complicated privilege discussion. That will go all the way to the Supreme Court. There's executive privilege, there is Presidential privileges at play here, I mean, there's attorney-client privileges at play here. This is basically all the privileges, and courts haven't weighed in and probably are reluctant to weigh in if they don't have to.

I think so, and what's interesting here is the government asserted a couple of things I want to go through. First of all, here's what the judge did. The judge said because of an appearance of fairness and integrity being required under the extraordinary circumstances of this case, that the special master should be appointed. So the court authorized the appointment of a special master. The court also temporarily enjoined the government, I'm going to read it exactly for you, from reviewing and using the seized materials for investigative purposes pending the completion of the special master's review or further court order.

So you have those two things. Then the judge traced the history of the case, but what's interesting, she says the government contends that after further investigation, the FBI uncovered multiple sources of evidence indicating that a response, this was the May 11th response to a grand jury subpoena, was incomplete. And this goes to the fact that they were in ongoing negotiations over these documents. But then the critical aspect of this, I think the most telling aspect of this, and the thing you have to be always concerned about, the government concedes, this is on page 13 of the document, the government concedes that the seized property included personal effects, 520 pages of potentially privileged material, and at least some material that is in fact privileged. So that's what they noted at the outset. And by the way, they also got documents involving his taxes, the former President's taxes and tax returns. What's interesting about that is it's well known that the President's been under audit with the IRS for a long time, and the idea that the Department of Justice then went in under the pretext of the search mark that they had for this privileged or this national security information for the National Archives, but then also grabbed tax information.

Of course, they were grabbing everything, let's be clear. But here's what's critical, okay, and this is where the judge really gets into this. The government, and she says to begin, the government's argument assumes that the privileged review team's initial screening for potentially privileged material was sufficient.

So that was what the government argued, that what they did was sufficient for the purposes of screening this out. Then she says, yet there is evidence from which to call that premise in question. Folks, I'm reading it to you from the opinion itself.

We've broken this down. She said, as reflected in the privilege review team's report, they put a report of what's privileged and what's not. She said the investigative team already has been exposed to potentially privileged material. What that means is that that investigative team, which should not have gotten that material, was given the material. This was privileged material.

Then she goes without, the judge says, without delving into specifics. The investigative teams, and this is what's so interesting here, the privilege review report indicates at least two instances in which members of the investigative team were exposed to material that was then delivered to the privilege review team and following another review designated as potentially privileged. The judge then says those incidents alone yield questions about the adequacy of the filter review process.

Now, Jordan, here's the next part, and then we'll talk about this. Then in footnote 13, that's why you've got to read the footnotes, folks, and that's what we do as lawyers. It says, in explaining these incidents at the hearing, in other words, the incidents when the taint team allowed the investigators, those are two different teams, to review this information, says counsel from the privilege review team characterized them as examples of the filter process working.

Now, think about that for a moment. Documents that were filtered out as tainted or potentially tainted were not normally then given to the investigators. But in this case, they were. But they said that shows that the process was working. This is the Department of Justice's argument. This is why this is, folks, so absurd. The court is not so sure.

This is what she writes. These instances certainly are demonstrative of the investigative team trying to return potentially privileged material. But they also indicate that on more than one occasion, the privilege review team's initial screening failed to identify potentially privileged material. The government's other explanation that these instances were the result of adopting an over-inclusive view of potentially privileged materials out of an abundance of caution. In other words, we said things that were privileged that may not have been just to be cautious. She says that does not satisfy the court either.

This is what she says. Even accepting the government's untested premise, this is a real rebuke of the Department of Justice, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the investigative team. Perhaps most concerning is the filter team's report does not indicate that any steps were taken after these incidents of exposure to wall off the tainted members of the investigative team. Total failure and collapse of the Department of Justice process. Complete failure and collapse of what the Department of Justice was doing here. And they went into court heavy-handed and came out admonished. Yeah, and that's why they're now in this situation.

People are asking, too, who selects the special master? So at the end of the opinion, both the parties get to put forward a list of people. Ultimately, it's up to the judge. Yeah, so she's given until Friday. The judge is given until Friday for both parties to agree on. She's usually a former judge that has security clearance or can get security clearance quickly. If they don't agree by Friday, the judge will appoint the person. And that process then is, you go document, we've done this before, it is document by document.

And I've done it on behalf of a President before. It's document by document. So this person doesn't have like a giant staff of... They'll usually give them some administrative staff, obviously law clerks, but no, but I mean this is, now the government is talking about the possibility of appealing this. Yeah. People have talked about that, too, because of the idea is that if you don't, this process is completely changed. And like it talks about, like we were just reading, this takes it out of their hands. I mean, they've lost now control of the evidence. Wait, and the judge, not only did they lose control of the evidence, the judge said they cannot use this evidence at any of their proceedings right now.

So that's why this is a significant win. There's a lot more to go through. We're also getting calls coming at 800-684-3110. You want to take a call to start going into some of these? Yeah, we can start with Sheila in California, online one. Hey, Sheila.

Hi, thanks for taking my call. My question is, since the FBI rants out trucks home, and then they splash these documents all over the place, all over the media, that they're supposedly so worried they're classified, how can they even still call them classified? Well, they don't show the contents of the documents, but that whole publicity photo stunt was like if you had a drug bust and you put up all the paraphernalia that you got on a drug bust.

That failed. I mean, they got roundly criticized for that. But let me tell you something else this judge said, which goes right to the heart of this, folks. She says on page 16 of the opinion, concerns about the perception of fair process are heightened here, where the privilege review team and the investigative team contain members from the same section within the Department of Justice division, even if they were, quote, separated for reporting purposes. And then she quotes this, prosecutors have a responsibility, not only see that justice is done, but also ensure that justice appears to be done, that the appearance of this is a problem. So I think the judge got it totally correct here, and the government, I mean, think about this, folks, the government here has a tank team set up, a review team, but yet documents from that review team end up in the hands of who? The investigators, and that was not supposed to happen. Yeah, when you go to those trust factors with the FBI, with the Department of Justice, this speaks to it directly, again, another time where they're caught, red handed, with kind of their hand, it appears, and that's what the judge said.

Listen, you could say this is an accident, but it doesn't necessarily look that way to outside observers. So this idea that, well, we have such a vigorous process that we catch our own mistakes, or you just got caught. And someone on that team said, hey, we shouldn't have this. And just like we've heard about, there are individuals in the FBI trying to do the right thing. But here they were coming from the same division.

That's the weird part. I mean, I think that this is all a good lesson for people to understand why when we talk about the mistrust of the FBI, it's not just a mistrust to mistrust the government. It's these kind of examples that make people so angry that the judges point out to the issue is, why not have a separate team inside? I mean, the FBI, they're so big, they have so many bureaucracies. They could put a separate team in place. But yet these are the same investigative teams, same people, share the same office.

Every single time on this as it involved the former President. Let me tell you what we'd like you to do, folks. There are a lot of you. Will, are we going to stay live during the break, or are we going to go to break? We're going to stay live?

Okay. So if you're on any of our social media platforms, we're going to say stay live because I want to go through some issues to clarify some things so you have a good understanding. If you're on Facebook, hit share. If you're on YouTube, it's thumbs up.

If you're on Rumble, it's plus. Share, in other words, share this feed with your group. Very important. We've got a lot of you watching right now. We encourage you to do that. We're going to be taking a break for our radio audience. You're going to have a two-minute commercial break. For our social media viewers and television viewers, we're going to stay live, and we're going to take more calls at 800-684-3110. But if everybody right now would share this with your friend, if you're on YouTube, hit that thumbs up. Very, very important to do that. We need you to do that right now.

Same thing with Rumble. Same thing with Facebook. Welcome back to setkill. We are taking phone calls to 1-800-684-3110.

That's 1-800-684-3110. So trying to get people to come out of the fog of the long weekend, and this idea of a special master, which was already discussed a lot in the news, but it was played down because everyone expected the government to come back and say, two weeks later, we've done our document review, and this is now with the investigative team. But what came out of that is that within those two weeks, at least twice, and the judge is about going into great detail, the government didn't go in a great deal either. They messed up privilege. So they have this whole team in place that's supposed to go through the first set of documents before the criminal investigative team goes through the documents to take out the documents that would cause them to basically be tainted. That's the word that we keep to the word.

So to see things they shouldn't see that they don't have the privilege to see that would be protected, whether it's attorney-client privilege, whether you're talking about executive privilege. And there's a lot of discussions here. In fact, Mary Ellen is pointing to this online too. So I want to go to this call because this does get to heart of kind of where this all starts with these privilege discussions online too. Hey, Mary Ellen. Hello. Thank you so much for all you do.

Just awesome work. I had seen the opinion and I saw highlighted that it, I don't know the exact words, but essentially the White House had ordered this, or they were involved in this. And all along they'd been telling us, oh no, they didn't know nothing about it.

We didn't see nothing. It was all. And then what's his name? Mary Garland. Oh, I was the one who was the one who.

Yeah. The Department of Justice, the attorney general acknowledged that he in fact authorized the obtaining of the search warrant. The White House can't claim, we don't know anything because they actually tried to waive the former President's executive privilege.

She's going to. Which is, so this document we find out, the current President Biden said, no more, no privilege on this. It waived executive privilege. And the question is, and the judge hits it too. These are all questions that have not been decided by courts. No.

In fact, Brett Kavanaugh in a recent opinion thought that executive privilege may well apply to a former President and that the current document of the White House doesn't get to waive it. But all of this comes up in the, now the context, Logan's joining us, of this, the populace, the people viewing and listening, the American people are trying to absorb this and you realize something really bad happened here. Yeah, I think so. And when you have a news media the way it is, a lot of these things get swept on the rug and you don't even hear about them. I think the news story, the headline, they make it easy to understand as possible. Sometimes the easiest thing is to tell people, hey, the special master was important, but what they don't say are these details that you all have uncovered. And I think that's a much bigger story. That should be the story we're hearing, which is, look, this is a win. We've said it's a major victory for the Trump camp, but it also doesn't come without faults. It doesn't come without problems. And that is the truth every time in these situations.

Yes. Every single investigation that has gone on on the former President has had irregularity. Let me be clear. And we know. Irregularities from the moment the investigation starts until they end up concluding.

Here you had, we can retrace it. They have a guy that's involved in all of these investigations, got all this anti-Trump stuff up. This is an FBI assistant director of the field office in Washington, DC, the special agent, Tebow. He is the one who initiates a lot of this and he squelches the Hunter Biden investigation. That's all going on in the election. Okay.

2020. Then you have this investigation start. The FBI and Department of Justice go to a judge, a magistrate, who had on his Facebook page, his social media, anti-Trump statements just right before he became a magistrate judge. But they go to him. Then the information, they grab everything, including stuff in the bedrooms and all this.

Okay. Now they've acknowledged that included personal information, tax return information, attorney client information, and over 500 personal items that have nothing to do with anything. Then they spew the pictures out, Logan, as if those pictures were exactly how the former President left the documents. That got them a lot of, they got a lot of flack for showing it that way.

Those pictures just like a drug bust. Yeah. I think a lot of people took that different ways. So some people saw that and said, oh, look, maybe it's mishandling. Then some people said, well, is this the photos they take? Did they just throw them around and take photos? So people see, we don't really know the answer to that, but we do know that it seemed illogical.

We do not find the documents that way. No, it's not the way they made that photo. To make up a photo. So this is why people don't trust them because it's like, okay, so someone had something, but why did you go to the next level to defame the person or disparage the person when you haven't brought charges against them? So you make everything look like, yeah, like you found it.

It's like you walked into Osama bin Laden's house or something and it was all spewed. This is not, they said it was in a carton. They took that out for a photo. They're the ones throwing it on the ground.

They're the ones choosing this camera angle. And it's the reason why people don't respect right now these federal law enforcement divisions because the same day they're reporting this news, they're reporting that the same, like you were talking about the same FBI guys are interviewing Hunter Biden's business partner who turned on Hunter Biden and turned on the Biden family. And they literally, is the headline in here, is it squelched or is it just buried?

HID intel. This is the FBI hiding information on whether or not at the time a Presidential candidate was compromised by the Chinese government. And that was the agent in charge. And he was the assistant agent in charge of that entire field office.

And the Washington field office is probably their biggest field office and has the most reach. Now, let's try to grab one more call. We're going to clear the lines here. We're taking calls.

1-800-684-3110. We've got another half hour of the broadcast. Let's try to grab this call before we go. Yeah, Gwen calling from Georgia on Line 3. Hey, Gwen.

Hi, how are you doing? And thank you for taking my call. Sure. You answered my question about the special master and how to pick. Yes, the judge will pick that.

I'm just wondering, yeah, I'm just wondering how we can trust that. Well, here's the thing about a special master that's better than when it's just handled by the Justice Department. You'll actually have proceedings. So it's usually a former retired judge.

And they'll have proceedings. In other words, you can make arguments about why a document is privileged, why a document may not be privileged. Does executive privilege apply?

Does attorney-client privilege apply? Does it not apply? You actually can make arguments. Before, it was the FBI reviewing the FBI. And in the next 30 minutes, I'm going to go back into what that ended up looking like here, which frankly, it looked like a disaster.

The taint team frankly was tainted. The very purpose for which they were set up, they could not accomplish. So the good thing about having a special master and at the same time telling the Justice Department, you cannot proceed with this evidence in your investigative process for now. In other words, you can't take this to a grand jury. It's very, very important.

We'll take calls when we come back from the break at 1-800-684-3110, another half hour of the program. But you know, that spewing of those photographs, I want to go back to it for a minute. Why did they think that is going to be okay that the American people aren't going to figure that out?

Because in the quick reaction of the world of social media, it was about mocking the carpet. I mean, that's what it got to. And that's what people I think forget that this is, we're talking about criminal charges against the former President of the United States is what they're trying to put together. And that's what they say this is about. And the idea that, again, every step, you would think if you care about the country, which the FBI should, these federal officials should care, is that you also are looking at what this makes the country look like.

But when you put together the Biden speech with the imagery of that and the imagery of the photograph as if, you know, you walked into the former President's office and he's just got a bunch of files all over, spewed all over the ground with top secret notifications on it. To me, it's just, again, it's because the guys leading the FBI, the men and women leading the FBI in Washington, D.C. are no good. They've been totally corrupted by the political process.

That's not most folks working for them even, because that's why you had them point out and say, hey, we shouldn't have this document. So the people I think underneath that group are probably fine. But that group that has risen to the top and they're doing it now to get TV contracts. Right.

And Andrew McKay, it doesn't matter. They lose their pitch and get their pitch and get fired. Go to court over that is the bigger picture is how do you become a star of the left? All right, we're taking a break.

We'll be back with more in a moment. For decades now, the ACLU has been on the front lines, protecting your freedoms, defending your rights in courts, in Congress and in the public arena. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at, where you can learn more about our life changing work. Become a member today. . Keeping you informed and engaged now more than ever. This is secular. And now your host, Jordan Sekulow.

Welcome back to Sekulow. We are taking your calls to 1-800-684-3110. That's 1-800-684-3110. We're getting into the news. Just yesterday, the court order out of the Mar-a-Lago raid case and former President that a special master, which most people thought it was too far in the process. And if you just didn't have the specifics. You would think that. Yeah. The FBI would come back in the Department of Justice with exactly what they tried to come back with, which is we're done with this already.

We're already moving on. Which is what they said. But what they added to it, which they had to add to it, was, by the way, we did a couple of times, the same team who was reviewing for privileged information and to exclude that, did actually give it over to the investigative team. And unlike like a special master who would just be going through this to say, okay, what can the investigative team have, they were trying to do this simultaneous.

And I guess they can't walk and chew gum at the same time. Evidently not. So I'm going to go through in the next segment what this actually, how it all plays out and the fact that the taint team actually received evidence they weren't supposed to have. But the public reaction, Logan, and what we're getting already on social media, has been pretty significant.

But let me just say this in the beginning. They acknowledge, the government has acknowledged that they have 520 pages of potentially privileged material for court review pursuant to the previously approved filter process. That was what they previously did. That's not including executive privilege. What this judge says may well apply here. That's just attorney-client privilege. And then it doesn't mention the hundreds of personal documents, including articles of clothing, tax return information. That was also in the former President's possession that they took. And that was with supposedly a filter team on, and that doesn't explain why the filter team then let the investigative team have it, which I'm going to get into in the next segment. But you have all of these happening simultaneously. And I think it's sending, if you were concerned about the process, this has just made it a lot worse. Yeah. I think that if you are concerned with the process, like you said, the details are there and you have to spend the time to really dig into them because most networks aren't going to do this.

They're not going to spend the time. And that's why we do this show here, is to really, that's why Joe and I are launching the podcast next week. So you have a much better full picture, 360 picture of what's actually happening. It's very easy to get lost in the headlines when there's so much going on, whether it's the blood red stage of Joe Biden's last speech that just happened. But that only was like four days ago, but it feels like a year ago. And then all of a sudden you have all different crises that have happened. And you do have to look at what the positives are, the big victory, but then don't be blind to a positive and see what actually can mean. Yeah.

And what it's going to actually mean. Now, we've got a lot of, you want to try to grab a call or you want to wait? Yeah, we can grab a call at 1-800-684-3110. Let's go to Brian in New York online too. Hey, Brian. Thanks for taking my call, guys.

I got two questions. Is there any new course President Trump can do to go after the bad actors, the FBI, to get justice? Can he sue them or can he just take over again in 2024 and fire everybody? Well, here's the thing. He did sue them. So let's be clear. That's what this was. That's what this was. This was a lawsuit which was entitled Trump. Okay, so let's be clear what happened. I think it's a good question.

Donald J. Trump versus the United States of America. So it took him a while, but there may have been a reason for that now. I've been concerned about that. I thought it should have happened sooner, but maybe they knew about some of this taint information.

But it doesn't cure it. So the President's actions have, in fact, been a lawsuit initiated to, A, stop to get a special master and, B, to stop them from using the information while the special master is determining whether, in fact, what's privileged and what's not, and the judge granted both of those. So we come back from the break, too, and I think, listen, there's already been discussions about how more of the bureaucracy can be cleared out, and I think that will be a discussion that happens after the midterms and more when you're focusing back to the general election, because it's not going to happen with Joe Biden in the White House, it doesn't matter what happens to Congress. But there's been a discussion of that, of reclassifying some of these folks who are in policymaking positions so that they can be removed easier by the incumbent Presidents, because if they're in policymaking positions, they have policies that are against the administration.

You think, hey, these are the people that are standing in the way of implementing the good policies. I also want to encourage you, go to We're going to get to it a little bit later in the week. You have until September 12th to take action here, but it's on Title IX and pro-life speech. And again, another attempt by the Biden administration to silence pro-life speech. So I encourage you, go to, because we need you to take action here. It doesn't cost a thing, but we need you to weigh in.

We'll be right back. We are going to continue taking calls at 1-800-684-3110. I think people tried to move quickly from this issue, one, it happened on Labor Day. Two, I don't think the significance of this can be overstated enough by how poorly this reflects on the Department of Justice and the FBI and how it changes their investigations so significantly. It takes it out of a realm where they were continuing their criminal investigation, and that has to stop. I think that is key here is that they had an ongoing criminal investigation that was just halted by a judge in Florida, and there were multiple reasons to halt it. But one of the reasons we found out that we wouldn't have known without this process is that the FBI had already messed up the review process and was allowing privileged information to go to the team that should not have privileged information, and that was getting through. So I think people have interesting questions and calls because this is getting into some legal issues that don't always make it onto TV in the biggest discussions.

Because it's complicated. We want to break it down for you, and here's what it says. This is on page 14 of the opinion. The judge says, the government's position is that another round of screening would be unnecessary, which is what they argued. Then she writes, the court takes a very different view on this record. Now let me tell you what that means. That means we're not just talking about hypothetically, but on this record, it is necessary.

It's not unnecessary. And then she says, to begin, the government's argument assumes that the privilege reviews team's initial screening for potentially privileged material was sufficient. And then she says, yet there is evidence from which to call that premise into question here. And then she said, as reflected in the privilege review team's report, the investigative team has already exposed to potentially privileged material. So the investigative team has already been exposed to privileged material that the taint team allowed them to have.

Without delving into the specifics, and you know why she's not delving into the specifics? Because classified information, that kind of thing. Without delving into the specifics, the privilege review team's report references at least two instances in which members of the investigative team were exposed to material that was then delivered to the privilege review team. And following another review designated as potentially privileged.

Those instances alone yield questions about the adequacy of the filter process. Then it says, in explaining these instances, this came up at the hearing. During the hearing, counsel for the privilege review team, that's the Department of Justice, characterized them as examples of the filter team process working. The court, the judge writes, is not so sure. These instances, and then she talks about the investigative team members who returned the potentially privileged material, but they also indicate that on more than one occasion, the privilege review team's initial screening failed to identify potentially privileged material. Then she said, the government's untested premises, the use of a broad standard for potentially privileged material, does not explain how qualifying material ended up in the hands of the investigative team.

In other words, documents that were clearly privileged, according to the government's own view, ended up with the investigators. And that, Logan and Jordan, is why people are saying, hold it, time out, what is going on here? Yeah, there's a lot of comments coming in.

This one came in from Rumble. They said, with the delay in the process, do you expect that we'll start seeing a lot more leaks of what the documents that the FBI took were? I don't know. The picture situation had me very concerned when they put that out there like they did. So I would put nothing by the process, except now they're under the microscope of a judge and a special master. Yeah, I think that that might prevent a lot of these leaking, because the documents that were being reviewed by this investigative team, they're not able to move forward with that. So the documents they would have to leak are now being taken away from them. All of it gets to the fact, remember they also said we have to be really transparent with this, we have to be really open and honest to the American people about this, and they weren't already.

But for this filing, I don't think you would ever learn necessarily about the issues they had, because they tried to paper over it as just, well this is because we have an intensive process and occasionally things get through. First of all, this is unprecedented. They're going after a former President of the United States who is a current political figure in the country.

So not just a former President of the United States, but also a current political figure in the country. So you would think with the unprecedented nature they would take unprecedented steps, but they're treating it... Well they took an unprecedented step. They allowed the taint team to get evidence into the hands of the investigators.

That's pretty unprecedented, even for them. Yes, it reeks of the corruption at the FBI and the problematic nature of any of these investigations, for good or for ill, is that why would you trust them? And again, this whole idea that we're not allowed to question, we're not allowed to question the people that we pay their salaries for, that we pay the bills, we are the reason why they exist, and they're to protect us from bad actors whether they're abroad or at home. And you wonder, maybe that's why these crises are happening in our country, whether it's a drug crisis, immigration crisis, is they are, their attention is in the wrong place. Their attention is in National Archives documents instead of drug cartels and fentanyl. Yeah, but the judge also said that, you know, the other irony of this, and this is what she says, is that concerns about the perception of fairness are heightened here when the privilege review team and the investigative team contain members from the same section within the Department of Justice. So even if they were, quote, separate teams, they're all part of the same group of DOJ.

So they took no precautions in any of this. Alright, you wanna go ahead and take a call? Yeah, let's take a call. Let's go to Jim, who's calling in Florida.

Frustrated, I know a lot of people are. Jim, you're on the air. Hi, Jim. Guys, appreciate you, Mike. The question I had, with all the corruption going on in the Trump... Okay, we're gonna have to... Hey, Jim, we'll put you back on hold.

We'll see if we can get to you. I know what your question was, and I hate that you waited on hold for 13 minutes and didn't get to say it on the air, but he said, is there any action that can be taken prior to the midterms? It seems like nothing has happened. Well, no, something big has happened.

I mean, the President's lawyers filed a lawsuit against the Department, against the United States, and he won. I think that's something that it's just not getting through to people, that they don't understand that with this... It's processing, so... People don't know the term special master.

They don't know these things, and including myself. You're having to educate yourself to figure out what we're talking about here. Yeah, so he took it out of the hands of the FBI and put it in the hands of a special master who will be appointed by a judge. So he filed, the former President filed a lawsuit against the United States of America.

It's Donald J. Trump versus the United States of America, and he won. And the taint team process is stopped. And the evidence can't be used right now in a grand jury, and a special master is gonna be appointed to review all of this. And the judge has already pointed out that it's been acknowledged here that documents that were privileged were shared with the investigative team.

That shouldn't have happened. And she points out that it also, interestingly here, amazingly and shocking, the Department of Justice is a big organization, so is the FBI. It happens to be these people, the investigators, and the so-called taint team, the review team, are out of the same department, same division. So that tells you the whole thing.

So I know people are frustrated, and I was frustrated that it took them three weeks to do it, but the end result was very good. Here's a comment that came out on YouTube, kind of counterbalance that. They said, is there a likelihood the DOJ appeals this order?

Is there a way to keep this going like this? They're talking about it, Jordan. Yeah, there was a lot of talk yesterday, and this was, again, this was on a holiday, but there was a lot of talk yesterday that this would so significantly slow down their investigation that they have to appeal. But I think that there's a big question that they start appealing this. You get into the other issues, which we just keyed in on, which the judge barely touches here, which is all of the privilege issues. Not just the normal attorney-client privilege that we know, but executive privilege and whether or not this waiver of executive privilege by, there's been a lot of talk about could Donald Trump waive the classified documents the way he did. There's also this question about whether or not the current President can waive the privilege for the former President. And also, then if that's the case, then it becomes a weaponization by political parties so that if you came in, you would always do this to whoever was the incumbent if they were in a different party to try and hurt them. Well, yeah, and the judge points out that Justice Kavanaugh had written in an opinion called Trump vs. Thompson that a former President must be able to successfully invoke the Presidential communication privilege for communications that occurred during his presidency even if the current President does not support the privilege claim, which is exactly what happened here. Concluding otherwise would eviscerate the executive privilege for Presidential communications. So they are, if the Department of Justice, Logan and Jordan decides they want to appeal this, this is a Supreme Court case. Let me tell you what that doesn't happen in an hour or a week or a month.

It would be months. So they've got a big decision here and there is, it's a question of whether the current occupant of the White House can waive the executive privilege of the previous President. I think that's open for serious review. All right. 1-800-684-3110.

That's 1-800-684-3110. Well, I think we need to talk about also, we've got about a minute until our next segment. We need to talk about next week.

Yeah. We have a brand new project launching, the Secular Brothers podcast. It's available right now to subscribe. We're going to be doing it three days a week at least. It's available.

Go to for the direct links or if you have a favorite podcast player, the Apple podcast Spotify, you can go ahead and subscribe. There's a little trailer there. It's going to be great. It's three days a week. We're going to be talking about all the news you hear, but also culture and change and family. It's going to be a very different casual show. We're looking forward to it. We're part of the Salem podcast family of shows. So if you are familiar with those shows, we're going to have a lot of those people on. We're going to be on a lot of their shows. It's just great to join that group at the Salem podcast network. Again, Secular Brothers podcast, Jordan and myself will host it again three days a week.

It's going to launch next Monday afternoon. So what will happen is you get it same day as we recorded. So what happened, we'll do this show.

We'll go have lunch. We'll come back. We'll record a new episode. We'll drop it to you guys all on your podcast feeds. And it really, we really appreciate it if you went ahead and subscribed. Because hundreds have subscribed already, but really could use a lot more heading into this launch. And we really appreciate it. Again, that's at If you do subscribe, send me a screenshot and tag me.

Love to see it. 1-800-684-3110. Let's talk to us on Secular. The phone call is to 1-800-684-3110. If people have good questions, I want to go to Bob in Colorado on Line 1. Hey, Bob. Hi.

Thank you very much for taking my call. I retired with 32 years law enforcement from LAPD. I've written warrants.

I've been on searches, things like this. One thing I don't see discussed very much in the media so far is violation of fourth amendment, which is essentially if you go in and you see something you're really not able to seize, which it sounds like that was done quite a bit. You start to crumble your entire case. When you have a team set in place, as they did, cannot just go in and just go take anything you feel like taking without looking at it. It's hard to say what was taken, but in fact it involves, let's say, tax records, let's say medical records.

It does. More and more and more that's going to get into fourth amendment violations, and if you get enough of them, you can literally lose your entire case regardless of how good the best case is. Well, there could be a motion to quash the entire indictment.

That has not been filed yet. So there's not been a move to quash the indictment. The judge says, as of right now, she does not see a callous disregard for constitutional rights. But Bob, you bring up a question, which is another series of motions that could be filed, which would be to quash the entire, basically the search warrant. And I'd start with the judge who should have been disqualified, as he disqualified himself from the civil case involving Trump and Clinton, he should have disqualified himself certainly from signing a search warrant.

But here, this is not a due process challenge in that sense. This is the taint issues, which is all part of due process, by the way, but it's not a quashing of the subpoena. Yeah, there were questions of that early on, because when people got to see the search warrant, and it got pretty close to almost, I mean, the size of Mar-a-Lago and all of this, but it wasn't like one room or one kind of documents, it was all these different kinds of documents. I think that's how you get passports, that's how you get 500 pages of personal documents, that's how you get attorney-client privilege documents. Even after working there, and they had already worked there going through documents, I just think it goes to the heart of this whole idea that we live in a modern world and they're still chasing paper.

They're still chasing paper, they don't know how to handle the paper they're chasing. And Andy McCarthy, a friend of ours, a former U.S. attorney out of the Southern District of New York, had an interesting take on this, which was that the government should have done pre-steps before they got into this because of the privilege issues, both attorney-client privilege and the executive privilege. The attorney-client privilege you're familiar with, you get communications with your attorney, it's privilege, it's zoned off. Executive privilege is different, that's conversations the President had, not with just attorneys, but with his advisors that should be then privileged.

Here's what Andy McCarthy had to say. The problem is it's not 100 percent settled, so I thought it was incumbent on them to get a ruling from the court on that question before they hauled off and did what they did, which was have the privilege team go through all of the seized documents, assuming that Trump only had attorney-client privilege, and then allowing all of the potentially executive privilege documents to go to the prosecution team. Which, if it turns out that they're privileged, that could taint the prosecutors who reviewed them, and it could also taint their investigation because they're now conducting an investigation. Remember, they got these documents two weeks ago, and they've had these documents the prosecution team has for about a week.

So here's what's interesting. The judge on page 17 of her opinion says, the question whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office in the face of a determination by the current President, the incumbent President, to waive the privilege are unprecedented and raise serious and substantial concerns, exactly what Andy McCarthy was talking about. And then she says, and quotes Justice Kavanaugh, saying, a former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his presidency, even if the current President does not support the privileged claim. Justice Kavanaugh then goes on to write, concluding otherwise would eviscerate the executive privilege for Presidential communications. So Andy McCarthy's right, so is the judge, and I think there is Presidential communication here that's privileged, because or else it would be meaningless if the next President comes in and says, well, all the information you relied on, I'm going to make it public. That's not the way an executive functions. So these are really serious issues, and the judge, and look, that's what Jordan said.

If they want to appeal this, it's got Supreme Court written all over it. Let's go ahead and take another call. We have Teresa in Illinois online. Hey, Teresa.

Hi, how are you, Jordan and Jay? Hopefully I can ask this question quickly and correctly. Okay. If they agree on a special master, what keeps the FBI or that side from intimidating that special master like they tried to do with the judges on Roe v. Wade? So here's the differential. You actually have a proceeding here. Okay, so where before it was the FBI checking the FBI, now you've got another judge that's the determiner, making the determination whether a documents privilege executive or attorney client, not the FBI. And lawyers for both sides get to actually make arguments.

So this is a totally new process. It takes a lot longer, but it's the right process to put in place in these unprecedented situations, especially when you know that there's at least two incidences where the tank team, that is the team reviewing the information, gave that document or documents which were privileged to the investigators, which they should not have done. They also would not be making decisions about right or wrong, whether or not there was criminal conduct.

That is not the special master's job. So that's why I think it takes them out of the public pressure as much. It's not like the less going to be saying find him guilty, because that's not their job here. Their job is saying what's the appropriate documents that should be reviewed by a criminal investigation team, and then it goes back to them. So I think that's an important clarification point.

This person is not deciding guilt or innocence of anyone. It is purely document review. It's just document review at the highest possible level because of what you're dealing with is privileged information. So what we're told is classified information.

There's questions about that as well. 1-800-684-3110. Let's take our final call of the day though. Mary in Maryland online. Hi, Mary.

Hi. My question is, the people that were there back in June, if these documents were so important, why did they confiscate them documents then? Why are they doing this now? Because they had them put extra locks on that room. Those people that were in that room back in June, if they were that important, why wasn't they taken then?

Well, there was an interesting dialogue that took place or a series of events. There was a subpoena that was issued by a grand jury for documents in this time period. And then there was evidently a certification, and I don't know the details of this, by the then President's former President's lawyer or lawyers saying, hey, we've reviewed it.

There's nothing privileged here. And then there were witnesses that came forward and said to the FBI and to the grand jury, hey, there are documents there that are national security. So I think that's what precipitated all of this. But something obviously broke down in the communication.

I mean, I can't really speculate on that, but that's another reason why it's good to have a special master in place. What doesn't make sense, though, is that when they got the authority to go in with the raid search warrant on a Friday afternoon, they still waited four days. And when people from the national security community weigh in on this, if you really have a national security issue at play, you get that warrant. You've already got the team ready to go prepared like you're going to get the warrant.

And you don't wait four days if it is something there that could put our safety at risk. So I think there's significant questions there. We haven't even gotten into that with the level of this hearing. And it looks like now there's going to be a huge delay by the FBI because now they've lost control of the evidence. Yeah, and of their own making. They're the ones that shared it with the investigators that shouldn't have happened. And it happened on more than one occasion. So they reaped what they sowed here. Folks, we gave you the breakdown line by line and that's what we do here at the ACLJ and that's what we do on Sekulow. Support the work of the ACLJ at and sign up for their podcast, Sekulow Brothers, Jordan and Logan's podcast coming out next week,
Whisper: medium.en / 2023-03-01 06:43:57 / 2023-03-01 07:05:15 / 21

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