Judging Freedom - Biden & Trump Classified Docs - What difference does it make_

Episode Date: January 18, 2023

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Hi everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Tuesday, January 17, 2023. It's about 9.40 in the morning here on the east coast of the United States. Many understandable questions have been asked about the similarities and dissimilarities between the allegations of the misuse of classified documents against former President Donald Trump and similar allegations against those made against President Biden. There are some similarities. Both presidents, well, both of them at one point, Joe Biden still does, enjoyed the top secret security clearances and they could read whatever they wanted. They couldn't take with them wherever they go, whatever they wanted to read, but they

can read whatever they wanted. So presidents can take classified material with them, but if the classified material is NDI, National Defense Information, it can only be viewed in a secured federal facility, of which the White House is one, but Joe Biden's Wilmington, Delaware residence, Donald Trump's Mar-a-Lago, Palm Beach, Florida residence is not. So the removal of NDI to those two residences would arguably violate the Espionage Act. The Espionage Act prohibits the improper removal, handling, or distribution, giving it to an aid to file, of classified material. Was the material classified? Well, we don't know. We assume it was because that's what the people who found it say it was. Can a president declassify? Yes, a president can declassify while still the president and following procedures. Donald Trump once said he could declassify something just by

verbally declaring it declassified, then said he could declassify something by thinking that it's declassified. That's not accurate under the law. Under the law, a document can only be declassified when the declassifier goes through the procedures prescribed by law, which basically means informing the author of the document and informing the custodian of the document that it is about to be declassified and will in fact be declassified at a certain date. What does that mean? Well, if the document is a report from a CIA agent in the field, let's say in the Middle East, and it includes the names of his sources, let's say they are foreign agents who are spying for the United States, that material can't be declassified until the author of the document, the agent who wrote it,

his boss, the person to whom he sent it, and the people whose names that are mentioned in it are informed that it's about to be declassified because the declassification of such a volatile document could result in somebody's death and even worse. So the idea that it can just summarily be declassified is not true. Can only the president declassify? No. The author of a document can declassify. Can the president declassify? Yes. Can the vice president declassify? Good question.

Not saying it's a good question. I asked it. Somebody else asked it. The surprising answer is yes. George W. Bush gave Dick Cheney the authority to classify and declassify, and that authority has never been removed. I don't know if Joe Biden even knows that he had this authority because the instrument by which Bush gave this authority to Cheney was, it no longer is, was itself a classified document. Okay, now that's background. As to the two of them, well, the numbers are vastly different. If you believe what's been leaked in the Biden case, if you believe what's been revealed, remember when there was that special master, no longer exists, but the special master in the Trump

case, a federal judge in Brooklyn revealed how many documents. In Trump's case, it's about 380 documents, about 60 of which were top secret, many of which we don't know the numbers were in this NDI category, National Defense Information, which is always and everywhere a crime for anyone to possess outside of a federal, secured federal facility of which Mar-a-Lago is not one. In Biden's case, we have 20 documents. We don't know what category they're in. There are many categories of classification. The lowest is confidential. You know, Harry Truman and FDR used to stamp confidential, whatever they didn't want to have to talk to the press about, whatever they didn't want their political opponents to see. Confidential technically means the government would be embarrassed if revealed.

Next is secret, which means the government might suffer harm if revealed. Next is top secret, meaning the government would suffer severe harm if it's revealed. Then under top secret, there are three or four categories, one of which says can only be looked at in a secure government facility, one of which is this NDI, which can only be looked at in a secure government facility. We don't know in which level any of the Biden documents fall. We know that the Trump documents fall in all these levels. The most serious, of course, is the top secret, NDI, can only be looked at in a secure federal facility. The other difference between the two of them is the cooperation of the potential defendant.

As soon as Biden's people learned about this, they sent it to the National Archives immediately, which sent it to the DOJ immediately. Trump, on the other hand, doesn't dispute that he had the documents, says he took them with him because he believes they're his. Well, he's wrong under the law. Absolutely 100% wrong under the law. They are not his. They belong to the federal government. He then engaged, according to the FBI, in a shell game, whereby he moved the documents around to keep his own lawyers from finding them and to keep FBI agents from finding them. Well, that's called obstruction of justice. The government is very, very aggressive on people when they think that these people, criminal defendants, have engaged in behavior

to frustrate a government investigation. So the principal differences, to summarize this, between the allegations against Joe Biden and the allegations against Donald Trump, and they're both the subject of criminal investigations, special counsels only do criminal investigations, is that Joe Biden's documents appear to be limited to 20, and he and his lawyers fully cooperated with the feds. Trump's documents appear to be about 380, and he did nearly everything he could to frustrate the feds. We'll see where this goes more as we get it. Judge Napolitano for Judging Freedom.