Judging Freedom - Biden Falls at AF ceremony_ NEW Trump tape_ Searches at the Border_ Ukraine update

Episode Date: June 1, 2023

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, June 1st, 2023. It's about 3.45 in the afternoon here on the east coast of the United States. Here are your hot topics. And as usual, they run the gamut from how deep into your iPhone the feds can search as you're crossing the border to what looks like a stomach-churning misstep by the President of the United States as he finished delivering a commencement address at the United States Air Force Academy in Colorado Springs. We'll start with that. So the president was the commencement speaker today at the United States Air Force Academy in Colorado Springs. I have a brother who many years ago attended the Air Force Academy. It's unlike Annapolis or West Point because it's modern and very, very new and,

of course, very expansive with all the land that the Air Force needs and that the federal government bought outside of Colorado Springs. But here is President Biden. We'll run this for you twice. He just finished giving the speech, boom, and he goes right down uh there's uh one of the military officers and two of the secret service agents picking him up as the secret service agent turns you're going to see an enormous weapon uh in his pant pocket we'll show this for you again the president is fine there was no injury he didn't harm his clothing he didn't harm his clothing. He didn't harm his body. He just slipped. Here they go, picking him up, and then he gets up partly on his own power, partly on their power, points to whatever it was that he says caused him to slip, and goes right back to his seat.

I have a lot of issues with President Biden, but I don't want him to get hurt. We thought you should see that. You'll probably see it all over the place on various media tonight. Okay. Former President Donald Trump's legal woes continue to grow. Apparently, he was part of a group, this is actually very gracious of him. I never heard of a president doing this before. He was part of a group after he left the White House of his former aides who were giving an oral history of his administration to publishers for Mark Meadows, who was his last chief of staff. I know Mark Meadows from his days as a North Carolina congressman. So they're sitting around a table at Bedminster, New Jersey, at the president's home and one of his clubs, not very far from where I am now. And they're each recounting events in the White House to help Mark is National Defense Information. That's different from classified. declassify. The law says he's got to go through a procedure to declassify. Former President Trump

says he can declassify just by declaring it declassified. I get it that there is that dispute. Most lawyers and judges say you got to follow the law. Most people that like the president say he can do what he wants with these documents while he's president. He obviously can't declassify them after he leaves. The NDI is different. National defense information is always and everywhere illegal, criminal to possess outside of a secure federal facility. It doesn't matter if it's classified or not. It would be criminal for the president of the United States to possess NDI outside of a secure federal facility. The Oval Office is a secure federal facility. The

West Wing of the White House is a secure federal facility. The Pentagon is a secure federal facility, etc. Mar-a-Lago is not. His club in Bedminster is not. What was this document? Well, he appears, I say appears, this is a video, excuse me, this is an audio, not a video, so you don't see anything. It sounds as though he's referring to a document that he's waving back and forth, in which he recognizes that he has, and that he took with him from the White House. And it sounds as though this document was a plan, are you ready for this, to invade Iran by U.S. military, given to him by the chair of the Joint Chiefs of Staff. Obviously NDI, obviously classified, obviously top secret. He may have declassified it, but he can't un-NDI it. It contains national defense information. Why is this significant? It's very bad. If the tape says what CNN and NBC News and the New York Times say it says, it shows that President Trump knew that it was unlawful for him to take this stuff and

knew that he had it. And that, of course, defies an argument that his lawyers have been making to the various federal judges that have been looking at this stuff. It's just like an overdue library book. Look, I know some of you think that I'm an anti-Trumper. I'm not. He's been my friend for 35 years. He interviewed me twice for the Supreme Court of the United States. Both times I recommended other people, one of whom is sitting on the Supreme Court of the United States today. There's no need to get involved in who those people are. He called me many times from the White House and from Air Force One. That's a trip. When he was president of the

United States. But as a lawyer and as a former judge and as a public legal analyst, my job is to explain the law as I understand it to be, whether I like him or not, whether I want him to run for reelection or not, whether I think he'd be a good president or not. And I'm telling you, if I have a bias, it's in favor of my friends. But notwithstanding that bias, this is very bad news for him. I know the federal prosecutorial mentality. They are jumping for joy over this. This defies what he told his lawyers to tell federal judges, and it undercuts his defense that, I didn't know I had this stuff. I didn't know it was national defense information.

This shows that he had it, that he knew he had it, that he recognized what it was, and that he knew he shouldn't have it at his home in New Jersey six months after he left the White House. He is, of course, running for the Republican nomination for president. Next week, former Vice President Mike Pence is scheduled to announce that he's going to run for the nomination against this former boss. And my longtime friend and fellow office holder from New Jersey, although I was just a lowly life tenured trial judge, Christmas, the king of the hill, Chris Christie, two term governor of New Jersey, is also going to announce that he's running. Donald Trump, I think, should be very happy at all these people running. The more the merrier, the easier it is for him to

capture a plurality of Republican votes, the easier voters in the primaries, the easier it is for the former president to triumph over all these people. If I were Trump, I would not be worried about Mike Pence, but I would be concerned about Chris Christie. Chris is one of the toughest guys I have ever met and also one of the smartest. Now, I say that as someone who's known him for many, many years, since before I was a judge, and that's obviously long before he was governor. We sort of came of age, even though I'm about 10 years older than Governor Christie, we came of age in New Jersey legal community at roughly the same time. He is one tough SOB who will not be cowed by Donald Trump. And I think he will take directly to Trump all of what Christie sees as

Trump's weaknesses. He will draw fire from Trump and the battles between Donald Trump and Chris Christie will totally dominate the news. The news will forget about Ron DeSantis and forget about Mike Pence and forget about Tim Scott and forget about Nikki Haley. These people are all my friends from my years at Fox. Asa Hutchinson, former Governor Hutchinson of Arkansas as well. And whoever else, Larry Elder is a friend of mine. Whoever else may jump into the race. I think the race will be dominated by the Chris Christie, Donald Trump back and forth, which will be nearly every day. Trump has the advantage because he's the former

president and is the better known. Chris Christie has the advantage because he's smarter than anybody else currently running in the Republican field, smarter in his knowledge of the government, smarter in his knowledge of the law, smarter in his knowledge and understanding of public policy and how the needs of the people can be met within the confines of the Constitution. I say that as somebody who disagrees with him on many issues, but as one who wants you to know when Trump and Christie go at it, you're in for a treat. Okay. You may not know of this crazy law, which basically says that within 400 miles of any international crossing into the United States, so that means the Atlantic Ocean in New Jersey, New Jersey is only about 78 miles wide. You can go another 132 miles, 22 miles into,

322 miles into Pennsylvania. 400 miles from any border, New Jersey, upstate New York, North Dakota, Texas, Arizona. And if you are from a foreign country, the feds can stop you and pat you down without a search warrant. In my view, that is an unconstitutional violation. There's no exception for that in the Fourth Amendment, which says all searches and seizures must be pursuant to a search warrant issued by a federal judge based on probable cause of crime and specifically describing the place Amendment. Now, it doesn't apply to everybody in that 400-mile strip. It only applies to someone as to whom there's reason to believe they entered the country and are physically present in that 400-mile strip. Until today, that rule was interpreted that not only could you be stopped, questioned, and patted down,

but the government could take your mobile device and demand the password from you and begin to enter the mobile device. But as a result of a courageous ruling by one of the more gifted federal judges in the system, Judge Jed Rakoff, sitting in the Southern District of New York. That's in Manhattan in New York City. This now requires a search warrant. He can't stop the pat-down searches because the Supreme Court has ruled on that with clarity. But he exempted from that pat-down search the ability of the government to get inside your cell phone. If they want to do that, they have to go to a judge, and they have to present that probable cause. This ruling by Judge Rakoff will be startling to the law enforcement and border patrol community because they have taken great advantage of their ability to enter almost anybody's cell phone whenever they can. Kavanaugh who when he was Judge Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit signed an opinion wrote an opinion saying the government does not need a

search warrant to get inside a mobile phone. Fortunately for the rest of us that opinion is not the law of the land. Judge Rakoff one of the more brilliant one of the more brilliant, one of the more gifted, one of the more courageous federal district court judges, trial judges in the system has written a brilliant and eloquent opinion today about why if the feds stop an immigrant, could be lawful or unlawful, but stop an immigrant within 400 miles of the border, the most they can do is pat the immigrant down to make sure the immigrant doesn't have a weapon. They can do that to you or me if they stop us. They need articulable suspicion to stop. And then if they're worried you have a weapon, they can pat you down. If you don't have a weapon, then that's the end of the pat down and they can ask you questions. Of course, you can leave. You don't have to answer those questions. You just simply say, am I under arrest? No, then I'm free to leave and I'm going, unless you want to answer the questions. The same is the case with the immigrant, legal or illegal.

But until today, when they patted the immigrant down, they could take the immigrant's phone and intimidate the immigrant into giving the password for the phone, but no longer today. A little bit about Judge Rakoff. Okay, he and I are friends, but put aside our friendship. I was a judge for many years. I have a lot of friends who are former and still sitting judges. Judge Rakoff is held in such high esteem that he's one of the few federal judges that other judges quote when they make decisions from the bench. That's how highly regarded he is by the rest of the federal judiciary, particularly the federal appellate judiciary, which is in a position to overrule him if they believe that he has violated the Constitution or misinterpreted the

law. So I was not surprised when my producer, Gary Villapiano, told me about this decision. I thought, geez, I wonder who this is. It's New York. Who could it be? There it was. Rakoff, Jed. My hat is off to him. My hat is off to anybody who believes that the Constitution means what it says. So I applaud this decision, of course, and I'm not surprised that it came from the great Judge Rakoff. One of the TikTok questions that came to us since yesterday was, you were surprised that the FBI has a presence in overseas embassies. Yes, I was. The FBI's job is to investigate crimes in the United States of America at the instruction of assistant U.S. attorneys. Now, assistant U.S. attorneys have no authority in foreign embassies and the FBI has no authority in foreign embassies. Putting FBI agents in a foreign embassy tempts them to do what? Engage in surveillance, engage in international surveillance on foreign persons, because that's what they like to do. You give them a little power and it will

expand. You give them a little more power and they'll grab a little more. That's not just the FBI. That's almost anybody in the executive branch of the federal government. So you station FBI agents in Budapest, in Hungary, in Kiev, in Ukraine, in Rome, in Italy, in London, in England, in Paris and France. Okay, you get my point. They're not going to stay in the embassy. They're going to go out in the streets and try and find someone who did something wrong that they can arrest and seek to extradite back to the U.S. Do they have arrest powers in these foreign countries? No, they don't. But these foreign countries, law enforcement community, will probably look the other way so that FBI agents can do what they want to do there. After all, they're the FBI.

I mean, you are giving them an opportunity to engage in foreign skullduggery intel with foreign persons in an atmosphere that's dangerous for them and dangerous for the foreign persons. And it's absolutely wrong. What do they do when they arrest somebody for breaking an American law that's not also a law of the land where they've arrested the person? They can't bring them to a local court because the local court's going to say, well, this is not a crime here. They can't bring them to the embassy.

The embassies don't have jails. They probably have some arrangement that they have made with local law enforcement where there's a secure venue where they can bring these people and then they'll persuade law enforcement. Oh, this is the guy we've been looking for. We just heard him on tape saying such and such. Come on. Come back to the United States and chase the bank robbers like the FBI is supposed to be doing. You know, it wasn't until George W. Bush, and you know I've been harshly critical of him for a variety of reasons, but it wasn't until George W. Bush became president that the FBI even had an intelligence division within it.

What does the intelligence division do? Fancy word for surveillance. What's surveillance? Fancy word for spying. There are now hundreds and hundreds of FBI agents from high ranking to street smart FBI agents called special agents. Edgar Hoover invented that phrase, special agents. What's special about them? They're all called special agents. But now that they have this intelligence branch, they can get themselves assigned to foreign countries.

They can begin surveilling without search warrants, Americans in foreign countries. They can begin surveilling without search warrants, foreign persons in foreign countries. What are they doing? Looking for a crime, looking for somebody to arrest, looking for somebody or something or somehow to justify their presence there. It's a waste of their time. It's a waste of your money. And it's more of an assault on the Constitution. More as we get it, 1 o'clock Friday afternoon, tomorrow, June 2nd, after a month's absence, and he'll tell you why when he's here. You'll be fascinated with what he's going to say. 1 o'clock Eastern, Scott Ritter returns to Judging Freedom.

More as we get it, my dear friends. If you like what you see and what you hear on this humble podcast, tell a friend. Judge Napolitano for Judging Freedom.