Damage National Security if released. The departments Court Challenge again expected any moment would be an attempt to reverse cannons restrictions. But theres another aspect of all this to keep in mind. The appeal were talking about would be heard in the 11th u. S. Circuit court of appeals where six of 11 judges happen to be trump appointees. All of this remains up in the air. Another major advancement to tell you about in this story, judge cannon also appointed a Special Master to review those seized document. His name is Raymond Deariement a semi retired u. S. District judge from new york. He was originally suggested by trumps team. He ultimately was approved of by both parties. Dearies deadline is one week after thanksgiving, thats November 30th. Weeks, of course, after the midterm elections and more than a month after the date doj had requested. And when were talking about potential threats to National Security, we all know at this point time is of the essence. Just what makes it shocking to read sections of cannons decision, sections like this, quote, theres been no actual suggestion by the government of any identifiable emergency or imminent disclosure of Classified Information arising from the plaintiffs allegedly unlawful retention of the seized property. Instead and unfortunately, the unwarranted disclosures that float in the background have been leaked to the media after the underlying seizure. Wow. Here we go. Its where we begin. Joining us, brandon banggrak, former National Security official at the department of justice. Importantly a veteran at doj. He investigated and prosecuted dozens of cases involving National Security and the espionage act. He was also a Senior AssistantSpecial Counsel to Robert Mueller during the russia investigation. Without take trump out of it just for a second. What is cannon getting wrong about the material thats been seized . 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, it should be restricted, controlled, thats the purview of the president of the United States because he or she is commander in chief. And the Supreme Court has codified that. Thats sort of a longstanding principle. And in her opinion, she challenges the representation of the department of justice and says ultimately i dont 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. Thats just not the role of the Judicial Branch, thats not the role of this judge. And i said take trump out of it for a second. It muddles everything. But i think its an important distinction. Youre saying Classified Information belongs to the government, that classified it. And whether trump declassified certain things is irrelevant to what has been seized. Talk about the chain of custody now before it could get back into the hands of the government. Right now the government still has that information. Cant use it. It cant well, it cant 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 governments 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. Right now the government does not have the ability to make that determination. When you were at doj, this case would have been something you would have been involved in. Have they argued this as planely as you think plainly as you think they can . What is the best argument to make . I think the last two filings that the department of justice has made, its elegant in terms of its tone and substance, and what you have here is even though were talking about a Special Master, they have substantially narrowed the question here. Thats 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, its 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, attorneyclient information, Sensitive Information between attorney and his or her client. Trump and rudy or trump and whoever you know, even in youre taking away trump from the conversation. Lets 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 thats 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 its an untenable circumstance. And the reason were 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 its the reason why i think were going to see an appeal, you know, any minute now. What do you think will happen on appeal . Well, not near up, i dont 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 were 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, its not tenable. Whats not tenable i want to make sure i understand. Whats not tenable is a private citizen saying its mine and you cant have it back to proceed with the Damage Assessment or proceed with the case . I actually what im trying to know is why do you have everyone, you know, everyone from the left to the center to john, you, and bill barr saying that trumps case is garbage . Youre talking about a private citizen. Im saying the Judicial Branch is not in apation, 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, thats the reason why the department of justice has no option but to appeal this. There are principles here that go far beyond what is happening in this case. So i think youre going to see a very vigorous defense of preserving the Executive Branchs ability to protect and classify information. Thats interesting. Thats a first sort of sboind understanding why you have the far right, legal minds like bill barr making the same argument that some on the left are. Is that the principle whats remarkable is like there is no right and left here. Right. This is there is not legal principles that are in dispute. I mean, theres a famous case from the 1980s where the Supreme Court explained this. For decades, including filings i did, everyone cites to this one case because it has to be true. Ill sort of make a further extension. Theres a piece in the opinion where the judge challenges the representation of the department of justice when the department of justice says it would cause irreparable harm to be compelled to disclose this Classified Information to the Special Master because its highly classified. Right. 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. How did we get here . How did how did trump end up being the one judge that sees this very black and white, as you said, nonpartisan, nonpolitical issue about access to Classified Information in such a trumpfriendly manner . 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 industrytegicly strategically done and how. Were at a point where there are serious concerns in terms of the separation of powers. There are really serious concerns about National Security based on this opinion. And so it doesnt matter who said it. It doesnt 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. Lets pull trump back into the conversation. What does it say obviously if youre still in the department and if you were working on this case you couldnt weigh in on this. But sort of informed analysis. What is your sense of trumps end game . Wants to hang on to classified stuff indefinitely to show his friends . You know, i dont i dont think the department of justice right now is even focused on the end game because in terms of the National Security issue, it doesnt 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 is a significant National Security issue even if the motivation was sloppy recordkeeping. Even if it is the most youre saying take the motive and end game out, the alleged crimes have already taken place . Whether theyre crimes or not from a National Security perspective, it is while its relevant, even regardless of what those motives are, it is significant and serious. And the charges that are being contemplated completely irrelevant what the motive is. It is in terms of the espionage act, it is the retention, solely the retention of that information that is unlawful. Theres nothing there are laws that make it unlawful to disclose and transmit. The department of justice has not indicated that thats within the purview of this investigation at this time. Theyve sent a lot of tea leaves is the right way to describe it, the department does, it doesnt write in tea leaves. Theres a lot of publicfacing evidence about obstruction. How would you evaluate whats in the public sphere about the obstruction . The obstruction is inextricably linked to the fact that right now we have this criminal investigation. Its 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. Even though we know now that the fbi, there was a referral made in the open investigation, i dont 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 to maralago, has a subpoena, and collects additional Classified Information. If all of the Classified Information was provided at that time, i dont think we would be talking about criminal charges. We would not be having this discussion. Something happened, and thats 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 wasnt 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. Thats the obstructive act. So it really elevates i think the concern and really the level of seriousness of the conduct were talking about. When you look at the publicfacing evidence of obstruction, do you see things that normal person wouldnt . I mean, do you see that theres somebody cooperating that had access to this mishandling of classified documents . Do you see that theres a flow of information to doj . I wish i could say i knew what, you know, redacted paragraph 65 referred to. Me, too. 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 didnt if those individuals havent with that knowledge cooperated and participated, thats when you would see criminal charges. When you go to a circuit with all of these trump appointees, does that matter if youre making what you just described as a nonpartisan Executive Branch argument . I think it does. I mean, again, you know, one of your questions was how did we get to this judge who appeared to be friendlier to the former president s arguments. And it is a calculation. It is. So if there was if you were dealing with a Circuit Court that perhaps has more experience with this or that wasnt perhaps as concerned, it you would potentially see a broader appeal. And again, were sort of trying to anticipate what the department of justice would do. I think at a minimum it would current composition of the issue would influence the departments decision to potentially narrow the scope to a very limited window in hopes of getting quick resolution. And when so what theyre narrowing is theyre focusing even for their appeal around access to these 100 classified documents thats right. Youre saying it was a friendlier thats right. Lets be clear, i could be completely wrong right now. We could all be wrong. But if they were to file a narrow continuing the bred crumbs that theyve shown us in their motions and actions before the district court, exactly right, which is just saying the Judicial Branch, this court, this Special Master, this private the judge, also a member of the Judicial Branch, by the way and a former fisa judge. And a member of the Judicial Branch. It should not be in a position to tell the Executive Branch they cannot use and possess this Classified Information. That is the narrowing of the there are still significant consequences for all of the other information in terms of the many months it will be before the department of justice can get access to it and use that to further its investigation. For this narrow issue, thats strategically that may be the way to go. Theyre looking for a court to say no, Classified Information belongs to the executive, and no judicial, no judge and no Special Master can take it or keep it from the executive. Or ultimately the Executive Branch cant be denied access and use of that info