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Bruce:

A federal judge ordered the government to propose restrictions to the affidavit that was used to justify a search warrant executed by the FBI last week at Mar-a-Lago. Judge Bruce Reinhart said he was inclined to unseal parts of it. Reinhardt said it was very important that the public have as much information as it can about the historic search. Adding, whether those portions would be meaningful for the public or the media was not for him to decide. And he acknowledged that the redaction process can often be extensive and effectively turn documents into “meaningless gibberish.” Joining me live, via Zoom, is Page Pate, an expert on constitutional law, and recognized as one of the best legal minds in America. Good morning.

Page Pate:

Good morning, Bruce.

Bruce:

So the judge seems to be striking a middle ground here. That said, Justice Department officials did not respond to the ruling, but privately I’m hearing they’re shocked by the decision. Your take.

Page Pate:

Bruce, it is very unusual for a federal judge to unseal an affidavit in support of a search warrant before anyone has been charged and before the case gets to court. But we have such incredible amount of public interest and attention to this case, that the judge is taking the very unusual step in requiring the government to put up something. I mean, you executed this search warrant. There’s been a lot of attention. There’s some pushback on it. We need to tell the people why we executed the search warrant. So now, it’s back in the Justice Department’s hands. They’ve got to go through this affidavit, black out or redact the parts that they think could be damaging to their case, and then present it to the judge. And then the judge will make a decision, either I’m going to go ahead and release what the Justice Department is okay with, or I’m going to require more. And we’ll see.

Bruce:

So the property receipt that’s already been unsealed indicates there were four types of documents that have been unsealed. One set was classified as TS/SCI, and that acronym stands for top secret compartmented information. And the SCI acronym is what’s curious here, because it puts the documents in an entirely different classification. It means there’s highly restricted access. That I understand is what makes this a bigger deal.

Page Pate:

It certainly does from the government’s perspective, because they’re saying, “Look, this is not a regular criminal investigation, where we’re looking for drugs, or we’re looking for emails relating to fraud. We are looking for material that is sensitive to our national security. So if we’ve got to describe in our affidavit to the public why we think this is important, well, we may be releasing that same information to the public.” And so the Justice Department is very sensitive about this type of material, in particular.

Bruce:

And we may be talking about espionage, that’s to be determined. Let me go back to a point you made earlier. The DOJ has until noon next Thursday to send Judge Reinhart the proposed redactions under seal. Where does this land, because it’s hardly likely any critical issues will be made public.

Page Pate:

That’s right. The Justice Department will make their proposed redactions. It will go back to the magistrate judge. If the magistrate judge says, “Yeah, this is okay. I understand why you want to hold onto the other information, I will release this.” Or the judge could say, “It’s not enough. I want to see more from this affidavit to release to the public.” Either way though, the Justice Department can appeal the magistrate judge’s decision to the district court. So I don’t think it’s going to be over next week. I think this will still be in court for, at least, a week or so to come.

Bruce:

So we know cameras were rolling when the FBI executed the search warrant, because Donald Trump refused to turn them off. Surveillance footage of the FBI going through Mar-a-Lago. If there was anything stunning on it, do you think Trump would’ve released it by now? Or do you, as his former top aide, Stephanie Grisham, thinks it’s nothing more than FBI agents doing their job.

Page Pate:

Yeah, Bruce, I think if there was anything to see there, we would’ve seen it by now. I mean, normally when the FBI’s executing a federal search warrant, they’re going to be aggressive. They’re going to detain people. They’re going to go through everything. They will have firearms displayed. It’s going to be a scene. But I don’t think that happened here. I think the FBI went in a total different direction. They came later in the morning, they were dressed in plain clothes. While they were armed, they probably were not displaying any guns or anything like that. So I don’t think it was nearly as impactful as it would normally be, or you’re right, Trump would’ve already shown us that video.

Bruce:

And let me ask you about a Allen Weisselberg, who for decades was one of Donald Trump’s most trusted and loyal employees, CEO of the Trump family business. He pleaded guilty to 15 counts, ranging from grand larceny to tax fraud, to falsifying business records. And he said he will testify against Trump and the Trump organization. Damaging to Mr. Trump?

Page Pate:

Well, we’ll see. I mean, I understand the charges against Mr. Weisselberg relate directly to what he did as far as cheating on his taxes, taking income and benefits that he did not disclose on his income tax. Obviously that’s problematic. Obviously that’s a crime. But what information does he have about the organization and specifically, what information does he have that Donald Trump knew about these tax problems? We’ll see. He has not provided a proffer or a sample of what he’s going to say. That will have to come out in court during the trial involving the Trump organization.

Bruce:

Page Pate, always a pleasure. I appreciate your time.

Page Pate:

Thank you, Bruce.

Victor:
A closely-watched investigation into former President Trump and his allies’ efforts to overturn the 2020 election, it just hit a big hurdle.
Speaker 2:
A judge in Georgia has blocked the Fulton County District Attorney, Fani Willis, from probing a state senator who was one of the 16 fake Trump electors in that state. Joining us now to explain all of this is CNN’s Kara Scannell and criminal defense and constitutional law attorney, Page Pate. Kara, make sense of all this. Why did the judge do this?
Kara Scannell:
Right. So this came down to the issue of conflicts of interest. This Georgia State Senator Burt Jones, who is the person at issue here, he had asked the judge to disqualify the District Attorney Fani Willis, and here’s why. Jones is one of the fake electors. He’s also a target of the investigation, but he’s also running for Lieutenant Governor of the State. Willis, who is the District Attorney, has held a fundraiser for Jones’s rival, his political opponent, in that race. The judge said that is an untenable conflict of interest, so he has disqualified Fani Lewis and her office from investigating Jones.
Kara Scannell:
He said that she can’t question him, she can’t call him a target, and he can’t be included in the report that will be produced by the special grand jury. However, the judge said that she can continue to ask questions about him, and any potential prosecutorial decision would be made by another district attorney appointed by the Attorney General. This does not have broader implications on the investigation. In fact, 11 other fake electors are scheduled to appear before that special grand jury this week.
Victor:
The judge, Page, called this a what were you thinking moment for DA Willis. Kara says this doesn’t have a broader implication on the investigation. What does this mean then?
Page Pate:
Well, Victor, first of all, it means this could create some serious complications with Fani Willis pursuing her case as it is currently structured. What’s going to happen now is a new District Attorney will be appointed just to consider the evidence against Senator Jones. Now, if that DA cooperates with Fani Willis and has a very narrow investigation, tries to talk to Senator Jones, perhaps has him testify, records that testimony and then provides it to Fani Willis, no problem. But if that new district attorney has a different view of this investigation, maybe strikes an immunity deal with Senator Jones, could do all kinds of things that could disrupt Fani Willis’s investigation. So it really depends on what this new district attorney will do once that part of the case is transferred to him or her.
Speaker 2:
But Page, are district attorneys supposed to be holding fundraisers for political candidates. How commonplace or strange is this?
Page Pate:
Well, in Georgia, it’s not that strange. District attorneys in Georgia are partisan. They carry party labels. Fani Willis is a Democrat. There are other Republicans who hold office. So unlike our judges in Georgia, you have to declare a party affiliation to run as a DA. But I think it was absolutely a bad idea for Fani Willis, during the course of this investigation, to hold this fundraiser for Senator Jones’s Democratic challenger in the election. And I also think it was a mistake to send out this target letter ahead of time. That is not necessary under the law, so it’s a potential conflict that the District Attorney herself created, and it’s unfortunate given her investigation.
Victor:
Speaking of targets, Kara, one of the targets of Trump’s pressure campaign, Georgia Governor Brian Kemp is take taping a statement for the special grand jury today. Tell us about that.
Kara Scannell:
Right, Victor. So the Governor is taping this testimony that will be presented to the special grand jury at some point in the future. Kemp was one of those officials that Trump had reached out to after the 2020 election, and he was pressuring Kemp to try to institute a special session and convince the state legislator to overturn Biden’s victory in that state. Trump also wanted Kemp to order an audit of the absentee ballots and their signatures. Now Kemp, a Republican, declined to do either of those things. But his testimony, he’s one of the most high profile people to do this testimony. The reason why he’s doing it via video is because prosecutors said they understood that he is the sitting governor of the state, and so they’re trying to reach this accommodation with him. But he is one of several high profile people that will have evidence presented before this special grand jury.
Speaker 2:
Page, how valuable is his testimony?
Page Pate:
Potentially very valuable. We understand at this point that the nature of that call that Trump made to Governor Kemp was to get him to try to call this special session of the state legislature here in Georgia, which the Governor is authorized to do. Kemp apparently pushed back on that. So to find out exactly what was said during that call, how hard was Trump pushing for this, could certainly show evidence of his intent to interfere with the election results here in Georgia. So I think what was actually said during that call is critical, and it was not recorded and played like the call with the Secretary of State. So his testimony is very important.
Victor:
Page, do they lose something by not having questions, by just accepting this recorded statement?
Page Pate:
Oh, I think they absolutely do, but here it’s a compromise. I think Governor Kemp could have fought the subpoena like some of the other folks have. Maybe ultimately he would have lost that fight. But then, as would the fake electors, probably the DA’s ability to question the Governor would be limited to certain questions. So here, at least this is an attempt to let’s get some of your testimony on the record. I don’t expect you, Governor Kemp, to help us prosecute Trump. But if you’re honest about what was said in this call, that may be all we need. So I think it’s a good idea to go forward with this, keep the investigation moving, and not have the legal battle that would occur if she tried to subpoena him.
Speaker 2:
Okay. Kara Scannell, Page Pate, thank you for explaining all of this.

Aisha: So, a lot of people are wondering right now when you hear this information because it was a huge story. You say, “Well, what’s next? And could now he be released from prison with the most serious part of his conviction overturned?” Let’s bring in now 11Alive, legal analyst, Page Pate. Page, what can you tell us about what could come next in a case like this?

Page: Well, Aisha, I think the most important thing to know is Justin Ross Harris is not leaving prison anytime soon. The conviction on the sex crime charges, he was sentenced to 12 years for those charges, he’s still going to have to serve those regardless of what happens to the murder charges. But it is now up to the District Attorney in Cobb County, whether to retry him on the murder charges relating to the death of his son, Cooper. That decision will be made probably within the next few months and then he may face another trial on the murder charges while he’s still serving his prison time on the sex crime charges.

Aisha: So, let’s dig a little bit deeper now into how the high court came to this decision around that information that the jury was able to hear during that trial.

Page: Well, the big problem is they took two cases and brought them together in one trial, the charges involving the death of Cooper obviously, those were the murder charges, cruelty to children charges. And then they had these unrelated charges relating to Harris’s communication, mostly text messages, to an underage female, that were very sexual in nature. They brought those two charges together in one trial.

And the Supreme Court said, “Wait a minute, all of that evidence relating to his texting these underage girls should not have been considered by the jury when they’re deciding the murder case. And it was unfairly prejudicial.” It made Harris look like a bad guy. Obviously, he was, the jury convicted him on those sex crime charges. But they should not have had that evidence bleed over into the murder case. Only the text and messages he was sending on the day Cooper died should have been relevant and should have been admitted at trial. That’s what the state Supreme Court said.

Aisha: And I think that’s important to point out here that this is so separate because we have a couple of parents who have already been arrested for leaving kids in hot cars this year. We’ve had hot car-related deaths already in the metro of this year. So, you can’t look at this case as setting precedent for any of those.

Page: No. I mean, to an extent you can. The Supreme Court did find that there was sufficient evidence of the murder charges so that’s why they can retry him again. There was sufficient evidence if you take away all of the information about the underage female, the sex crimes. So, yes, this is still the type of case that police should pursue, the prosecutors should proceed on. And that’s why I think in this case, the Cobb County DA will go back and retry him on those murder charges.

Aisha: All right. So, this is definitely not over in that aspect and we will continue following this. And we thank you for joining us, Mr. Page Pate, giving us that in-depth perspective. Thank you.

Page: Thank you.

Fred: All right, tomorrow in Atlanta the Fulton County district attorney is expected to begin the selection process for a special grand jury to decide if former President Donald Trump should be charged for trying to pressure Georgia officials into overturning Joe Biden’s election win in that state in 2020. Prosecutors are looking into a January 2021 phone call in which Trump pushed Georgia Secretary of State, Brad Raffensperger to “Find the votes needed for him to win that state.”

Page Pate is a constitutional law and criminal defense attorney. And he’s with us now. Page, good to see you. So, given what you know, do you think it’s possible a special grand jury could recommend an indictment for former President Trump?

Page: I do, Fred. The special grand jury, of course, doesn’t have the power to indict Trump or anyone else on its own, but what they do have the power to do is subpoena witnesses for testimony, subpoena documents, review all of that evidence, and then make a recommendation as to whether or not another grand jury should actually indict the president and perhaps other people for this particular attempt at election interference.

Now, there are a number of different crimes that could apply here, misdemeanors, felonies, it will be up to this grand jury to look at the evidence and then make a recommendation as to what, if any, crime should be pursued.

Fred: And included in that evidence has to be this infamous call, right, former President Trump called Georgia Secretary of State Brad Raffensperger in January 2021. Here’s a portion of that call.

President Trump: So, look. All I wanna do is this. I just wanna find 11,780 votes, which is one more that we have because we won the state.

Fred: So what does that sound like to you? What will that sound to the potential grand jurors?

Page: Well, it sounds like the former president is attempting to interfere with the election results. But here’s what’s critical. We do not, at this point, have the secretary of state’s testimony about how that call affected him. If the district attorney is going to pursue Trump for interfering with election results by soliciting the secretary of state to not do his job, well then, we need to hear from the secretary of state. And that’s why we have this special grand jury. The secretary of state is not gonna voluntarily come forward and cooperate with the district attorney. So, she had to empanel this special grand jury. So, how that call affected him, I think is critical to the analysis of this case.

Fred: Well, will it be submissible? All of the interviews that Raffensperger did, where he did talk about his experience in that call, and he may have intimated if not said directly, what his feelings were. Is that admissible?

Page: It’s admissible if there was a prosecution against Raffensperger, but to actually be admissible in a trial against Trump, you’ve gottta have the testimony of the secretary of state. That’s why it’s so important to find out how he took that call and what if anything he did in response to that call.

Fred: Interesting. All right, so this is a county grand jury hearing, is the bar for an indictment any different in this type of hearing as compared to a federal court?

Page: No, the bar is the same. Is there probable cause that a crime has been committed? The difference here, again, we’re dealing with a special grand jury under state law. They don’t have to finish their work in a month or two months. They can take much longer than that. So, the analysis is going to be the same, but this process may take even longer.

Fred: Interesting. All right, Fulton County, DA, Fani Willis, said in an April interview with “The Atlanta Journal-Constitution” that she will wait until after the state’s May 24th primaries to issue subpoenas to public officials. So, maybe that’s an answer to the Raffensperger. So, do you see that, among those subpoenas, it could include Georgia Republican Governor Brian Kemp?

Page: Yes.

Fred: And, of course, the secretary of state?

Page: Yes, absolutely. But again, I think she’s smart to wait until after the primary, because then, potentially, they’ll either be out of office, in which case or at least on the way out of office, they may not be as reticent to testify about what Trump did to them and how that affected them. Or, you know, she doesn’t want their testimony to be with one eye towards the election. So, I think waiting still the primary is over is certainly a smart move.

Fred: Will you also see a potential subpoena for the former president?

Page: It’s possible, but I don’t think that’s going to happen. Normally, if you’re the target of a grand jury, you’re not gonna get a summons to appear in front of the grand jury. The investigations about you calling you to actually testify would be very unusual. What I do expect to see is some of the people, recipients of these subpoenas, challenging them in court. And there has been a Fulton superior court judge appointed to handle those challenges. And I think he’s gonna have a lot of work to do here.

Fred: All right, Page Pate, good to see you. Thanks so much.

Page: Good to see you.

Fred: All right…

Fred: Florida’s feud with Disney entered a new phase on Friday, Governor Ron DeSantis signing a new law that will dismantle the self-governing status the Disney World resort has enjoyed for the last 55 years. And it comes after Disney criticized a Florida law aimed at preventing schools from teaching young children about sexual orientation or gender identity, dubbed by opponents as the “Don’t Say Gay” bill.

Well, back with us again, constitutional law attorney Page Pate. Even though I said goodbye to you, I didn’t really mean it. It was a very short goodbye. Hello again. All right so…

Page: Hello. I didn’t wanna leave, [inaudible 00.00.36].

Fred: All right. Well, this is a really important topic, you know. Because from the outside looking in, I mean, the State Government of Florida is punishing Disney for taking a stance, verbalizing itself against this new law. So, would that ultimately be a violation of their First Amendment to speak as they wanted?

Page: I think so, Fred. I mean, we have to start with the proposition that a company, just like a person, has the right to freedom of speech. The First Amendment protects their ability to make statements about things they believe in, things they’re against. They absolutely have that protection. The only question here is, was this particular action to strip away their authority in the Middle Florida Orlando area, take away their ability to govern themselves, was that in retaliation for them speaking out about this “Don’t Say Gay” bill?

Fred: Well, does it seem like it is retaliation?

Page: Yes, absolutely. I mean, you look at the statements that the Governor has made, you look at some of the social media messages members of the state legislature have put out there, I think it is clear not just to punish Disney, but to send a message to other companies, not to take the same sort of position. So, I don’t think that’s a good argument. But what we have seen already is some members of the legislature saying, “Well, now wait a minute. It wasn’t just Disney. There were other tax districts involved. And maybe Disney should not have had this privilege to begin with.” But that doesn’t matter under the constitutional analysis. They had it, now they don’t. And it’s because of what they said.

Fred: Yeah, but it’s interesting because now it’s being analyzed in lots of different ways. I mean, it may be a privilege, you know, one point of view, but then we just spoke with, you know, the tax commissioner who says ultimately Disney may be saving. They may be saving $160 million, you know, in taxes that they would have paid with that kind of special privilege. So, are they really being punished because now Florida residents are gonna have to pay that cost? So, if Disney wants to push forward on this and challenge the state legislature, challenge this law, what kind of recourse does it have to potentially strike down the law?

Page: Well, Fred, they’d need to go to court. They would file a lawsuit. They would allege a violation of their constitutional rights by the State of Florida. And they would say, “They acted in retaliation by taking away this privilege we had. Whether we should have had it to begin with or not is not the issue for the constitutional analysis. We had it, they took it away.” So, that would go to a federal judge in Florida. But you’re right. They may not wanna do that. I mean, it looks like they’re gonna be able to unload a bunch of debt on the taxpayers of Florida. So, there may be political or business reasons not to even challenge the decision. We’ll see.

Fred: Oh boy. So, unlike most of, you know, Florida’s new laws that are set to take effect, you know, July 1st, this law against Disney’s Reedy Creek Improvement District doesn’t begin until 2023. So, there is time. And in that time, for the next year, what potentially could happen?

Page: Well, Disney, first of all, has to decide what they wanna do. And I think so far they’ve not made a public statement about what their intentions are, whether they’re gonna sue to try to undo this action. They’re gonna think about it. They’ve got lawyers. They have very good lawyers. They’re gonna decide if this is something they wanna do, not just from a legal standpoint, because I do believe they have a legal right to do it, but do they wanna do this as a business decision? And you’re right, they have time to think about it. It’s not an emergency. They don’t have to act next week or even next month.

Fred: All right. Page Pate, I’ll just say so long, see you later, instead of goodbye.

Page: Hope to see you soon.

Fred: Might have you come back really, really soon. Thank you.

Page: Look forward.

Fred: All right.