Kash Patel: Trump 'should definitely consider' demanding recusal of anti-Trump judge who OK'd raid

Legal options also include seeking special master to segregate, protect privileged documents unresponsive to scope of search warrant, explained national security lawyer central to debunking Russia collusion narrative.
Donald Trump, CPAC, Dallas, Aug. 6, 2022
Donald Trump, CPAC, Dallas, Aug. 6, 2022
Brandon Bell/Getty Images

Donald Trump and his legal team "should definitely consider" demanding that the judge who authorized the FBI raid on Mar-a-Lago recuse himself from the case due to personal prejudice against the former president, former Trump administration national security offficial Kash Patel said Thursday on the John Solomon Reports podcast.

Under federal law regarding bias or prejudice of a judge: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."

According to published reports, Magistrate Judge Bruce Reinhart, who approved the warrant to search Trump's West Palm Beach, Fla. estate, posted a Facebook message impugning Trump's character and — just weeks prior to the raid — even recused himself from the 45th president's sweeping lawsuit against Hillary Clinton and others for conspiring to falsely portray him as colluding with Russia to hijack the 2016 election.

In his recusal notice in that case, Reinhart — who has made political donations to Barack Obama and former Trump GOP rival Jeb Bush — cited a statute that holds that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

In light of the judge's reported anti-Trump bias, podcast host John Solomon asked: "Should the president of the United States based on the Facebook post of 2017 of this judge, go into the court today and say, 'Your Honor, I'm filing this affidavit: You said this about me. You just authorized an invasive search of my home. You must step aside.'? Should the President do that?"

"It's something he should definitely consider with his legal team," responded Patel, a national security lawyer central in debunking the Russia collusion narrative as counsel to the House Intelligence Committeee under its then-chairman, former Rep. Devin Nunes. 

After reviewing the government's search warrants, the Trump team should then "calculate a way forward that not only helps to exonerate President Trump, but also at the same time, shows the American people what happened," said Patel. "And there's a couple of different ways to do that." 

Noting that Trump documents not germane to the narrow scope of the search warrant are protected by executive privilege and attorney-client privilege, Solomon asked whether there should "be some effort to segregate the materials and protect things that really aren't responsive to the search warrant?" 

"This is what a special master is for, and this is what the lawyers need to decide — if it's the best way forward," Patel responded. 

"In the 11th Circuit case law, where this district resides, it's favorable to having special masters cull through information documents, etc. to see if they're actually responsive to the crimes alleged in the search warrant," Patel explained. "And if they're not, then they can be immediately pulled back out and returned to the target party."