Judging Freedom - Afghanistan Withdraw Report & Trump latest

Episode Date: April 6, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, April 4, April 6, sorry, 2022. Holy Thursday for the Christian world, Passover for the Jewish world, the middle of Ramadan for the Muslim world. It's about 2.25 in the afternoon here on the east coast of the United States. These are your hot topics for today. And the first one is truly breaking news. The Pentagon just held a nationally televised press conference at which Admiral Kirby, John Kirby, the spokesperson, not for the Pentagon, but for the National Security Council, Admiral Kirby was the spokesperson for the Pentagon in the Trump administration. He's now the spokesperson for the National Security Council in the White

House. That's when I met him when I was at Fox and he was working for the Pentagon in a retired status as a courtesy, still, of course, called Admiral. Anyway, the Pentagon, apparently, unbeknownst to the rest of the world, has prepared a very lengthy report on the circumstances surrounding the departure of U.S. troops from Afghanistan, why it was a disaster, why so many innocents were killed, why the government fell. And surprisingly, the Pentagon blames the Biden administration. Not surprisingly, it also blames the Trump administration. The Pentagon recognizes that American troops left too quickly and that the Ghani government, President Ghani of Afghanistan, was not prepared for our departure. What the report doesn't tell you is that President Biden, a week before we left, lied to President Ghani and told him, don't worry, we'll be here, we'll protect you.

And then unbeknownst to everybody, just announced the departure and we left in a week. At one point, we had hundreds of thousands of troops in Afghanistan. President Trump brought it from 50,000 down to 2,500. However, when the Russians left Afghanistan, it took them eight months to do so. Now, the Taliban took over after they left, but none of the Russians was killed and none of their, at least not a substantial amount of their equipment was left behind. We lost 13 American service members during the actual departure, but the result on Afghanistan, of course, was catastrophic. Now, the report blames President Trump for degrading Afghanistan, and a reporter asked Admiral Kirby just 15 minutes ago what is meant by degrading. Here's Admiral Kirby's explanation.

The report says the Trump administration's four years of neglect, including deliberate degradation of Afghanistan operations and despair. Could you be specific about deliberate degradation? What are you specifically referring to? There are many aspects if you look at the Doha agreement and what led up to that. When President Trump took office, there was more than 10,000 American troops in Afghanistan. He took it down to 2,500. He negotiated the release of 5,000 Taliban prisoners that were being held by the Ghani government without consultation with the Ghani government. He negotiated the Doha agreement with the Taliban without the Ghani government. He negotiated the Doha agreement with the Taliban

without the Ghani government in the room. And he all but froze the special immigrant visa program, which had been providing opportunities for some of our Afghan allies to get out of the country and to come back. So it was a general sense of degradation and neglect there that the president inherited. And do not underestimate the effect that Doha agreement had on the morale and the willingness to fight on the Afghan National Security and Defense Forces. It had a very corrosive effect on their willingness to continue to fight for their country.

All right. I misspoke when I said President Trump inherited 50,000 troops. Admiral Kirby is correct. President Trump inherited 10,000 troops, reduced it to 2,500, negotiated directly with the Taliban. Used to be a crime to communicate with the Taliban. Freed 5,000 Taliban prisoners. Used to be a crime to provide material assistance to the Taliban. There are Americans in American jails for that. And did all of this outside any dealing with the Afghan government. Is it any wonder that they fell? I think a fair assessment of this report, and some of you asked

about the report, is there a PDF of it? There is not. The report is classified, but there is a 12 page summary of the report, which was handed to reporters right before Admiral Kirby spoke. So you probably will be able to Google that report, that summary, the parts the government wants you to see. If you start Googling right now, I would imagine that one of those reporters has posted it. Look, this is largely the blame of both administrations. The Trump administration was so anxious to get out of there that Trump actually broke federal law by negotiating with the Taliban and releasing 5,000 Taliban prisoners. Could you imagine a foreign government negotiating directly with prisoners in the United States and releasing them from an American prison

without involvement with the American government? Well, that's what our relationship was to Afghanistan. It was as if it were a vassal state of ours, where we not only told them what to do, we reordered their own law enforcement and governmental priorities without them even knowing about it. Nevertheless, the summary departure in seven days was absolutely insane. Why President Biden ordered it in seven days, maybe only history will reveal. The report, as I understand it, is illuminating, shockingly fair, since it's the government's evaluation of itself. Normally, the government can't fairly evaluate itself any more than any of us could evaluate ourselves. And it is critical of both administrations. FBI official named Charles McGonigal, a 30-year FBI career agent who had risen to among the highest ranks in the FBI. He was in charge of the counterterrorism office in New York

City, which as I understand it, is the second largest counterterrorism office in the country. The only larger one is in Washington, D.C. And he was arrested for a couple of different charges, not the least of which was receiving money from a Russian oligarch whom he had formerly been investigating without reporting that to the federal government. He was also arrested for opening an investigation while he was a senior member of the FBI on the political opponent of a friend of his, another Russian, Albanian intelligence agent. So he's investigating this Albanian intelligence agent, finds no wrong. They become friends. The Albanian intelligence agent tells him, go investigate so-and-so. He's your troublemaker. Turns out so-and-so is a

troublemaker for the Salbanian agent. FBI agents are sent to do that bidding. That's a misconduct in office. There was no American criminal basis for that investigation. It is also a violation of federal law to work for and receive money from a foreign agent or a person being investigated by the foreign government as if they were a foreign agent without reporting your receipt of money to the American government. So those are basically the charges against him. Why is that in news today? Ha! Because last night the Department of Justice wrote a letter to the federal judge in Manhattan in the case saying, oh, we inadvertently hid evidence in the case against former FBI Deputy Director McGonigal. And we will release that inadvertently hidden evidence by the end of the week, which means tomorrow, Good Friday. What a quaint coincidence that they hid this evidence and found it during Holy Week and now have decided to release it. We don't know what

the evidence is. We don't know if it's exculpatory, if it helps the defendant, or inculpatory, if it helps the government. It's hard to believe it would be inculpatory and the government failed to release it. Here's the difference, if you will, between the state of New York prosecuting Donald Trump and the federal government prosecuting this FBI agent. When the feds prosecute you, they release the evidence against you right then and there. When the state of New York prosecutes you, it's like pulling teeth. You got to ask for it. You got to identify it. You have to know that it exists. Feds use a far more modern and far fairer system. State of New York uses an old-fashioned adversarial system where

you don't get anything until you ask for it. But you can't hold back. There is an obligation on the part of all prosecutors at every stage of the game, as soon as they get it, to release exculpatory evidence. What is exculpatory evidence? That's evidence that either helps the defendant or hurts the government. And you might say, well, why would the government release that? Ah, because the government has an oath under the Constitution to be fair. The government is often not fair. But on its face, the government is required by a federal statute and by a Supreme Court case law to reveal exculpatory evidence as soon as it gets it. We don't know what this evidence is. We don't know when the government got it. We do know it's going to be released when the courts are closed and

nobody's working on Good Friday. You can come to whatever conclusions you want. Late last night, former Vice President Mike Pence announced that he will not appeal a decision of the United States Court of Appeals for the D.C. Circuit requiring him to testify next week before the federal grand jury investigating President Donald Trump's involvement in the events at the Capitol building on January 6th. Now when that subpoena came the government jumped the gun beat by former vice president to the punch, so to speak, and before he could file a motion to quash, as in squash, the subpoena, I say as in squash because that's the way we learned it in law school, quash. What does that mean? Okay, think of it as squash without the S. Before the vice president

could move to quash the subpoena, the feds moved to enforce it. Subpoena is a, it's not a court order. It's a document from a grand jury. You have to either comply with it, excuse me, getting hoarse today, comply with it, or move to quash it. You can't do nothing. Pence did nothing. The government moved to require compliance, and then Pence cross-mo moved to quash. A federal judge supervising the grand jury made a very sophisticated analysis saying, well, there's no executive privilege because this doesn't apply to national security, diplomatic, or military secrets. Those are the three areas where executive privilege prevents the government from intruding upon the president's conversations. That's from a case called United States v. Nixon in 1974.

But there is a little bit of a problem with the speech and debate clause. The speech and debate clause protects members of Congress from being called into account when they are on their way to, on their way from, or actually on the floor of the House of Representatives or the Senate. Now, Vice President Pence was on his way to, on his way from, and was on the floor, actually at the dais of the House of Representatives when he was presiding over a joint session of Congress. Senators were there, members of the House of Representatives were there. So the court said you do not have to testify about what you said and did on the floor of the House, nor on your way to the floor of the House or on your way leaving. In that, in those moments, you were acting as the president of the Senate, as if you were

a member of the Senate, and therefore you have immunity. But everything else, what Donald Trump said to you in the days and weeks and months leading up to January 6th, what he said to you in the morning of January 6th, what he said to you in the afternoon and evening of January 6th, you'll have to testify about. Mike Pence appealed that decision to the United States Court of Appeals for the District of Columbia Circuit. That court, by a vote of three to nothing, upheld the decision of the trial judge. Last night, Mike Pence said he will testify. He will not appeal this to the full 13-member Court of Appeals or to the Supreme Court of the United States. The same court, the United States Court of Appeals for the District of Columbia Circuit, while we were all watching the circus, circuit and circus, while we're all

watching the circus surrounding Donald Trump's arraignment on Tuesday, the United States Court of Appeals for the D.C. Circuit released an opinion requiring the former president's senior aides to testify, very similar to the Pence situation. The senior aides received a subpoena from the grand jury. The feds moved to comply with the subpoena. The senior aides, actually using Trump's lawyers, moved to quash the subpoena. The senior aides, actually using Trump's lawyers, moved to quash the subpoena again on executive privilege grounds. A trial judge, a different trial judge from the one that ruled in the Pence case, ruled there is no executive privilege for the same reasons. There's no executive privilege in the Pence case.

Trump's lawyers, in behalf of his senior aides, appealed it to the District of Columbia Circuit. A different panel of three judges on the D. it to the District of Columbia Circuit. A different panel of three judges on the D.C. Circuit ruled three to nothing. There is no executive privilege for these senior aides, so they will testify as well. They have not yet revealed if they will appeal this decision to the full D.C. Circuit or to the Supreme Court. I'm going to guess they won't. It has been the pattern of the Trump lawyers who are rowing the boat in these cases to stop their appeals once the DC Circuit rules against them. So this is Mark Meadows and other senior members of the White

House staff. And there's no carve out here like there is in the Pence opinion of areas where they do not have to testify. They have to testify about everything. Everything Trump said to them, everything they said to Trump, every observation they made of Trump, everything they did pursuant to what Trump told them to do. That testimony will also come next week. This testimony before the January 6th grand jury tells me that Jack Smith, the special counsel investigating former President Trump for January 6th and a separate investigation for the documents at Mar-a-Lago, is nearing the end of his investigation. I believe that the witnesses who testified in the Mar-a-Lago grand jury, it's two different grand juries, one Mar-a-Lago, one January 6th, because the January

6th one has other potential defendants. So does the Mar-a-Lago one for that matter. Who are the other potential defendants? I'm sorry to say they're Trump lawyers. There are some Trump lawyers and former lawyers like Rudy Giuliani who are in the crosshairs here. Some present lawyers are in the government's crosshairs as well for material misrepresentations they made to the government on the basis of what Trump told them. But I believe for better or for worse, both of these grand juries are nearing the very end of their investigation. And in both cases, the special counsel, Jack Smith, will soon go to Attorney General Merrick Garland and say, we have enough

evidence to indict and we have enough evidence to convict Donald Trump. Here's the charges. Here's the evidence. Tell us what you want us to do. And then Merrick Garland will have to make the most important decisions of his long career in the federal government. The other grand jury that Donald Trump should be concerned about, you heard me say this on Tuesday and yesterday, is the state grand jury impaneled by D.A. Fonney-Williams in Fulton County, Georgia. That grand jury is also finished. When I say finished, I mean finished hearing testimony. I don't know if they voted.

Just like I didn't know, we didn't know that the grand jury in Manhattan had voted when, in fact, it had. That grand jury, of course, does not need the president's, the attorney general's permission to indict because that grand jury is a state grand jury. And we have from observers of what's going on in that courthouse, it appears that a DA Williams is ready to make her decision there. And the decision would be, should she ask for an indictment or not? It's not always an easy decision to make, as I've discussed. There are two levels of evidence that the DA must have. The DA needs probable cause to indict.

It is more likely than not that Donald Trump committed this crime. She or he also needs to know that there's enough evidence to convict. I have enough evidence to prove his guilt beyond a reasonable doubt and to a moral certainty. Now, those numbers are vastly different. My left hand here, the lower hand is probable cause. That's 51%. My right hand here is proof beyond a reasonable doubt. That's 97, 98, 99% certainty. That's the level of proof needed before you can indict.

You can't indict just for the hell of it. You can't indict because you want to. You can only indict if you have enough evidence to convict. These are the decisions that the DA in Fulton County, Fannie Williams, the special counsel in Mar-a-Lago on January 6th, Jack Smith, and the Attorney General of the United States, who was the boss of Jack Smith, will have to decide. While all this is going on, President Trump has lashed out at those investigating him. I've advised publicly, I haven't spoken to him personally in a while, certainly not since

Tuesday, but I've advised publicly that he stopped this lashing out, that he stopped these public statements about the prosecutions against him. I know he has a First Amendment right. As a judge, I'm proud and happy to say I never, ever signed a gag order because I believe all gag orders violate the freedom of speech. And the defendant, no matter who he is, has every right to attack the prosecution, to attack the prosecutor, to attack the prosecutor's wife. I think that's stupid and counterproductive, but you can do it. On Tuesday night, Trump attacked the prosecutor in his case, Alvin Bragg, Mrs. Bragg, the prosecutor, the special counsel of the federal cases, Jack Smith and Mrs. Smith. He attacked Fannie Williams. I don't know if he attacked her husband. But doing that serves no good purpose. One of the potential defenses in the New York case is that all this money that was spent to this, given to this support star, which were corporate funds, which is one of the two potential crimes, using corporate funds to help a campaign or using corporate funds to pay a personal debt. In the first case,

it was an illegal campaign contribution. In the second case, it wasn't a corporate debt, it was a personal debt. So there was no tax paid on that income. So in the case of the campaign assistance, Trump may very well say it wasn't to help the campaign, it was to help my wife. Okay. You didn't want your wife to know that this porn star, this female porn star was going to go on national television and say you slept with her, even though you deny it. I get it. Then why on the heels of your arraignment, did you go on national television and thank and wish well every member of your family, except your wife. Now look, he can say whatever he wants about his family, but when he does things like this and he is a criminal defendant,

the government takes note and the government will use all of this against you. At the time of his arraignment, when he was not handcuffed, he was given his Miranda warnings. And so a cop said to him, Mr. President, you have the right to remain silent. And anything you say from this moment forward can and will be used against you. Went in one ear and out the other because of what he said when he was back at Mar-a-Lago. The government has a way of finding out what you say about it. It can twist the words or it can take the plain meaning of those words. One of the things he said, here's the point of what I want to say. I'm going to read it directly. Republicans in Congress should defund the DOJ and the FBI until they come to their senses. There it is, until they come to their senses.

The Democrats have totally weaponized law enforcement in our country and are viciously using this abuse of power to interfere with our already under siege elections. Okay. In New York is being prosecuted by the state of New York. That's who the DA represents in a criminal case. This has nothing to do with the DOJ and the FBI. The Republicans are not in a position to defund the DOJ and the FBI. I have some sympathy for this argument about defunding them. I have often argued that the DOJ enforces 5,500 federal criminal laws. Do you know how many are authorized by the Constitution? Two.

Treason and debasing the money supply. And for the first 80 years of the United States of America, until the administration of Ulysses S. Grant in 1870, there was no DOJ. There is no mention of an attorney general in the Constitution. If the federal government needed to sue somebody, they hired a private law firm, and that law firm represented the federal government in court. If the federal government needed to prosecute somebody, they went to a state. Let's see, what state was the bank in when the bank was robbed? Okay, there were federal funds in the bank, but the bank was in New Jersey, so New Jersey will prosecute the defendant. That's the way it was done.

That's a check on federal power when the feds have to go to the states and ask for prosecution. That's the Constitution Madison gave us. So Trump may be on to something here when he wants to defund the FBI and the DOJ. Unfortunately, that's not going to happen. Unfortunately for President Trump, the Republicans in Congress are not in a position to do it. It would require both houses of Congress and the president, probably two-thirds of both houses of Congress because President Biden is not going to sign legislation to this effect. But that's what is on President Trump's mind this holy Thursday, second day of Passover, middle of Ramadan in New Jersey, beautiful spring afternoon. We will be dark for the Easter triduum, Good Friday, Holy Saturday, Easter Sunday.

Unless there's some breaking news, something that I think you should know about and that I'm dying to express an opinion on, I'll be right here. Otherwise, a blessed holiday weekend to everyone. If you like all of this, like and subscribe. More as we get it. Back to our usual schedule next week. Judge Napolitano, for judging freedom.