Judging Freedom - AG Garland Lied to Congress_ Hunter Plea Deal_ Trump Recording_ FBI & Jan6th

Episode Date: June 28, 2023

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Thank you. Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, June 28th, 2023. It's about 4.30 in the afternoon here on the East Coast of the United States. Here are your hot topics for today They include the famous or infamous, depending upon which side of this dispute you're on Tape of President Trump had his golf club in Bedminster, New Jersey The government says he is admitting to the crimes for which he is charged We'll play the tape for you

We'll also play the president's response to it and the latest Supreme Court decision and whether or not that helps or hurts the concept that maybe the people that were elected as electors really weren't elected. Here we go. The New York Times today quietly acknowledged what its bitter adversary in New York, the New York Post, has been alleging for several months. It's a very serious issue. It's not just a dispute between two major but very different newspapers. The Times conceded in the 21st paragraph of a piece that it ran this morning that Attorney General Merrick Garland may very well have lied under oath to Congress when he said he did not interfere in the prosecutions

of Hunter Biden. Now, all this Hunter Biden stuff is very, very controversial. It's controversial because on its face, it appears that he's being given special treatment because he's the son of the President of the United States. He probably is, and the officials involved in this probably don't want to admit it. This is not a surprise. I remember when I was an undergraduate at Princeton, two years ahead of me was a young man who was the nephew of Lyndon B. Johnson. He went on to become a world-famous legal scholar at the University of Texas Law School. I won't even mention his name. His last name is not Johnson. And one night, after he had a little too much to drink, he threw a cinder block through the plate glass window of a liquor store so that

he and his buddies could get more liquor. These were very well-to-do kids who didn't need to steal the liquor, but it was after hours. Let's just say the White House took care of that, even though this is a very, very, very local crime. Fast forward to today, the White House takes care of its own. I'm not saying that every president has done it, but often law enforcement will do a favor for the man in the White House. That's the allegation here. The allegation is based on a couple of things. One, the potential crimes charged and the actual crimes charged have a vast gap between them. The actual crimes to which

Hunter Biden will plead guilty are far less than what the crimes could be. Two whistleblowers, one publicly, notoriously, with his face and his name revealed, and he's in management at the IRS, and one without revealing his name or his face have claimed that the Department of Justice refused to file charges, even though the evidence of guilt, according to these whistleblowers, is overwhelming. Guilt of what? Guilt of income tax evasion. This is not failure to pay. This is failure to report. And the guilty plea, of course, is two misdemeanor not paying on time charges and one pretrial intervention for lying under oath in a gun application. If accepted by a judge and the date for acceptance is right after the 4th of July, so next week or the week after.

If accepted by a judge, that's it. It's over with no matter what the shenanigans were that led to this. However, if the judge rejects the guilty plea, then the DOJ is going to have some egg on its face and some explaining to do. Where does Merrick Garland come in? Well, Merrick Garland is the Attorney General of the United States. Theoretically, he approves all federal prosecutions. As a practical matter, he and his 70-some-odd predecessors have all given the U.S. attorney in a judicial district. Delaware is a judicial district. New Jersey is a judicial district. New York, because of its size and population, has four judicial districts. That's why there's 70 U.S. attorneys. Merrick Garland, like his predecessors, has given the U.S. attorneys in each of those judicial districts the authority to file whatever charges they

believe should be filed and that they can prove. Congress asked Merrick Garland if he withheld permission or interfered with potential prosecutions or denied potential prosecutions in Delaware or in California. Why California in a minute? And he said no, the whistleblowers say yes, and that they can prove it. This is very serious. The interference is, if it happened, is lawful, that is a very, very, very serious problem, and he may very well have to appoint a special counsel to investigate himself, in which case he would probably resign from office. Why California? Because Hunter Biden was living in California one year when these alleged violations of federal law involving the IRS took place. The Constitution requires not only DOJ regulations, but the Constitution requires that a person be charged in the judicial district where the crime is alleged to have occurred.

Why is that in the Constitution? Ah, because the British government charged colonists with crimes and then shipped them to London for prosecution. So when Madison wrote the Constitution, he wanted to be sure that that would never happen here. So the Constitution specifically says you must be charged in the judicial district in which the government says the crime took place. So now there's a lot of pressure on this judge to reject the guilty plea. The judge was appointed, nominated by President Trump, but the judge has also contributed to Hillary Clinton's campaign. So we don't know what's going to happen.

I don't like the idea of evaluating judges on the basis of their prejudicial, not prejudicial, prejudicial politics. Having been a life tenure judge, though, on the state side, I can tell you your attitude about politics and about the government changes radically once you put that lifetime black robe on. You really don't care about the politics, even the politics that helped you get to the judgeship. You have a profound intellectual obligation to be intellectually honest. The politics be damned. So I don't care if Trump appointed her or if she gave money to Hillary. She has an obligation to be intellectually honest. If she can't, then she's got to get off the case and pass it on to somebody else. You've heard me say this before. Judges have two attitudes about guilty pleas. One, I'm a judge. My job is to resolve disputes. That's all I do. I don't set policy. I don't

investigate the DOJ. I resolve disputes. If the DOJ,. I don't set policy. I don't investigate the DOJ. I resolve disputes. If the DOJ, the Department of Justice, and the defendant come in my courtroom and they want the same thing, I'm going to go along with it. The other attitude is I'm not a potted plant. My job is to do the right thing. If the DOJ comes in here with radically reduced charges, with enough evidence for far more serious charges. I'm going to want to know why. And if I don't agree with why, I'm going to reject the guilty plea. Your humble correspondent was in the latter camp during his judicial days.

I don't know enough about this judge to know which camp she's in. We'll find out right after the 4th of July. The Supreme Court earlier this week, yesterday, in fact. By the way, there's two more days for the Supreme Court to come down with opinions. It's too late today. But Thursday and Friday, this very, very hot decision that you may have heard me talk about on other people's podcasts this morning about whether Harvard, a private university, and the University of North Carolina, owned by the state of North Carolina, can discriminate on the basis of race in admissions. Harvard, even though it's private, receives between $80 and $100 million a year from the federal government.

In return for that, it agrees to be bound by the Bill of Rights, more or less, by American civil rights laws. Civil rights laws clearly prohibit a state institution from engaging in racial discrimination, although the Supreme Court let the University of Texas do it in three Supreme Court opinions. I think the Supreme Court in the next two days will come down with a blockbuster saying no affirmative action, no discrimination based on race if you are owned by the state or if you accept money from the government. Well, that's the background. What did it come down with this week? It came down with this week a rejection of, quote, the independent state legislature closed quote theory. What is that theory? That theory, articulated by the late Chief Justice

William Rehnquist and stated in the Constitution, says that the state legislatures shall decide how presidential electors are chosen. Remember, when you vote for president, you don't vote for the candidate. You vote for electors pledged to vote for the candidate and then there's the electoral college and the counting of the electoral college votes that's what they were doing on january 6th when they were interrupted by by the crowds um so each state has the same number of electors as it has um representatives in congress in both houses so new jersey which has as an example, 11 members of Congress, of the House of Representatives and two senators has 13

electors. You vote for those electors. Do they pledge to vote for Joe Biden or do they pledge to vote for Donald Trump? The state of North Carolina took the position, again, from the language in the Constitution, which says the state, the independent state legislatures shall decide how the electors are chosen. North Carolina took the position that it can choose the electors. And indeed, Chief Justice Rehnquist said that in Bush versus Gore. There's no requirement that the public vote. The state legislature can choose the electors itself. It could choose all for Biden or all for Trump, or it could split the difference.

That issue was before the Supreme Court today. The Supreme Court of North Carolina rejected that. Then an election took place, and the membership of the Supreme Court of North Carolina changed. Then the new election in the new Supreme Court of North Carolina said they can do it. So now there's no dispute because what the plaintiffs want, the independent legislature theory, is the same as what the defendants, the state of North Carolina, want. And the Supreme Court is not supposed to hear cases that have already been resolved,

that have already been settled. Why? Because the Constitution requires that there be a case or controversy before any federal court has jurisdiction. And according to Justice Thomas's dissent, there's no case or controversy. He's right. Nevertheless, the Supreme Court ruled yesterday by a vote of six to three, there is no independent legislature theory. The states have to let people vote, and whoever wins the popular vote in the state, their electors choose the president. Excuse me. They have basically invalidated the language of the Constitution. That's Justice Gorsuch's dissent, and I agree with him. But that's the law. This will prevent the type of thing that Rudy Giuliani urged upon the legislature of Georgia, which was to invalidate the election, which showed that Joe Biden won by

11,000 votes. This will make that type of argument impossible. Today in a state court in New York City, Daniel Penny pleaded not guilty. Now, normally this would not be something that we would cover in our Hot Topics today, but you all know this case. We're not going to run the tape of what happened with Penny because we got wrist slapped by the people that carry all this when we ran it, even though it's been run on New York City television over and over and over again. Daniel Penny is the tall, thin, blonde haired, blue eyed ex-Marine, now a college student sitting on a subway in New York. When a guy by the name of Jordan Neely, who was homeless, begins to act erratically and uses threatening language against other people in the subway car. He doesn't have a gun and he doesn't touch anybody, but he uses threatening language. Penny decides to restrain him.

He restrains him with a chokehold. He holds him for so long with such pressure that this fellow, Jordan Neely, dies. And now Penny is charged with homicide. Depends on which side you're on. If you think Penny is a hero who protected people on the subway car, then you think he didn't commit a crime. If you think Penny used far more force than is necessary and failed to retreat, as the law requires, and because he didn't see any deadly weapons on the part of Neely, did not have the right to use a deadly weapon, his trained arms on Neely's throat,

then you're happy about this prosecution. This will be another show trial, but today, to the charge of homicide, basically reckless manslaughter, reckless in his regard for human life. He pleaded not guilty trial sometime in the fall. It'll probably be after Christmas, the same time, the same courthouse, not the same judge, in a different judge in a different courtroom will be trying the criminal case against Donald Trump, not the Mar-a-Lago one, but the one involving the alleged falsification of his business records in New York. CNN has released a copy of the tape of Donald Trump discussing NDI, National Defense Information. I don't know how CNN got it. The FBI are the best leakers in the world. I think the FBI is wrong if they leak

this stuff. Maybe I'm wrong and maybe it wasn't the FBI, but this is the tape and we're going to play it for you in just a moment. This is the tape in which Donald Trump in New Jersey at his country club in New Jersey, to which he brought from Florida, this NDI, this National Defense Information, is talking about a military plan to invade Iran. He seems upset because the PR that he's getting about this is that he asked for the plan. You'll hear him claim that he didn't ask for it. The military just gave it to him. However, it got on his desk. Thank God he didn't act on it. Nevertheless, it's NDI. What's NDI? NDI is National Defense Information, which shows the methods and

sources of the acquisition of data about the U.S. military and about foreign military. It is always and everywhere unlawful to possess outside of a secure federal facility. Even the incumbent president of the United States cannot possess NDI out of a secure federal facility. Donald Trump, as you'll hear in the tape, misunderstands that. He thinks he can declare it declassified and possess it wherever he wants. This tape is the prosecutor's dream. which he, you're going to hear this, the glee with which he bandies about the documents which show this plan to invade Iran. He apparently, and the government will argue, and when they play this tape to the jury, he apparently kept these documents so that he could impress his friends

and colleagues. Okay, what is he doing? He's in a conference room at his country club in Bedminster, New Jersey. He's being interviewed on tape. It's not surveillance. He knows the tape recorder is going. He consented to it to help his former chief of staff, Mark Meadows, write an autobiography. So he's being interviewed by two Trump staffers, and two persons from the publishing company, and a ghostwriter for Mark Meadows. And there's another person there operating the tape recording. So you're going to hear his words, and you're going to see a transcript of what he said. And then you're going to see a transcript of what his response was when this tape was released. Now, bear in mind, this tape was played to a grand jury.

It's covered by the laws regarding secrecy. It shouldn't have been released. However, much of it is quoted verbatim in the indictment against Trump. Here's the Bedminster tape. These are bad, sick people. That was your coup, you know, against you. Well, it started right at the beginning. Like when Milley's talking about, oh, you were going to try to do a coup. No, they were trying to do that before you even were sworn in. That's right. Trying to overthrow your election. Well, with Milley, let me see that. I'll show you an example. He said that I wanted to attack Iran. Isn't it amazing? I have a big pile of papers. This thing just came up. Look. This was him. They presented me this. This is off the record, but they presented me this.

This was him. This was the Defense Department and him. We looked at him. This was him. This wasn't done by me. This was him. All sorts of stuff. Pages long. Wait a minute. Let's see here. I just found, isn't that amazing? This totally wins my case you know except it is like highly confidential there's a secret information

look at this Hillary would print that out all the time she'd send it to Anthony Weiner the pervert by the way isn't that incredible I was just saying because we were talking She'd send it to Anthony Weiner, the pervert. By the way, isn't that incredible?

Yeah. I was just saying, because we were talking about it. And he said, he wanted to attack Iran. He's in the papers. This was done by the military, given to me. I think we can probably, right? We'll have to see. Yeah, we'll have to try to figure out.

See, as president, I could have de-classified. No, I can't. But this is the lesson. Now we have a problem. Isn't that interesting? Yeah. It's so cool. And you probably almost didn't believe me, but now you believe me. No, I believe you.

It's incredible, right? No. Hey, bring some cokes in, please. It ends with bring some cokes in, please. This is a prosecutor's dream. This is the defendant admitting that he possessed NDI, thinking he could classify it, but even acknowledging that he didn't, admitted that he had attack plans to attack Iran, waving them around, showing them, talking about them to people in the room in a non-secure federal facility. So it wouldn't matter if those people had top secret security

clearances. They didn't. But even if they did, it wouldn't matter. It would still be a crime under the law as it's interpreted because this NDI material, as I said earlier, cannot be possessed outside of a secure federal facility. The president, of course, was furious that this was leaked. The leak might be a problem. Was it an intentional leak? Was it done to pollute the jury pool? What does that mean? Well, sometimes the FBI leaks damning information about the defendant to the public, since the jurors are going to be chosen from among the members of the public. The FBI would love nothing more than for the jurors to have a predisposition toward guilt. Of course, jurors are supposed to have a predisposition toward innocence. They're not supposed to be neutral.

They're supposed to have a predisposition towards innocence because the defendant is presumed innocent. He's innocent as the trial starts. He's innocent as the trial proceeds and judges remind them of that. He's only guilty after he's been proven guilty beyond a reasonable doubt and to a moral certainty. That, of course, will all be explained at the time of trial. But in terms of this tape, it's the prosecutor's dream. It gives them a motive. Isn't this cool? The president, the former president, boasting about the top secret NDI, National Defense Information, that he still had with him, in this case, traveled with him from Washington to Mar-a-Lago and from Mar-a-Lago to New Jersey. Now, as you can imagine, the president was not happy when CNN ran this. Here's what he said in a tweet. The deranged special

prosecutor, Jack Smith, working in conjunction with the Department of Justice and the FBI, illegally leaked and spun a tape and transcript of me, which is actually an exoneration rather than what they would have you believe. This continuing witch hunt is another, in caps, election interference scam. They are cheaters and thugs, retweeted 5 000 uh times so um he is wrong that this is an exoneration uh this is an enormous incrimination uh of him uh and a monumental headache for his lawyers more as we get it scott uh ritter tomorrow at 1 30 in the afternoon. We have a new military analyst. I forget the time on tomorrow or Friday. Matthew Ho, a Marine Corps major who believes that the purpose of the Department of Defense is to be strong enough to deter wars, but not to be engaging in them as the United States is doing in Ukraine today. And you

probably heard Joe Biden, old Joe, saying Vladimir Putin is losing the war in Iraq. All right, slip of the tongue, he meant Ukraine. Whereas we get it, some time off next week because of the 4th of July. I'll go through all of that tomorrow or Friday. Judge Napolitano for judging freedom. Thank you.