Judging Freedom - DOJ alleges _obstructive conduct_ by Trump

Episode Date: August 31, 2022

'Thought they wanted them kept Secret?' Trump claims the FBI threw documents on the floor at Mar-a-Lago 'pretending it was me who did it' - and 'took pictures for the public to see' https://www.dailymail.co.uk/news/arti... #Trump #FBI #investigationSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, August 31st, 2022. It's about 1045 in the morning here on the east coast of the United States. Late yesterday, the Department of Justice, pursuant to an order from the federal judge hearing this matter, filed its response to the application of former President Donald Trump for the appointment of a special master. To give you a little background, a special master is an independent person, often a retired judge, who receives the documents that the FBI or the local police or the state police, whoever it may be, have seized pursuant to a search warrant, in this case, the FBI. The special master then decides if any of the documents are personal or privileged, and if any of the documents are evidence of crime. He then surrenders the ones that are evidence of crime to the agency that conducted the search, in this case, the FBI, and returns the ones that are's application for a special master is too little too late.

Because the FBI and the DOJ have already examined everything. And the harm that they say might come about from looking at privileged documents, attorney-client privilege, or personal documents, has already been done. And it can't be undone. The time to apply for a special master, particularly in a sophisticated case like this, where you already have a team of lawyers working for you, where you're the former president, where you have a staff, where you have security, where you have a custodian of records, where you have people that are supposed to know what they're doing and what's going on, is during the search so that the

judge will sign the order telling the FBI, you know, take what you think is relevant to the search warrant, but don't surrender any of it to the DOJ. Surrender all of it to the special master whom I've appointed. This case, whoever that would have been, would have to have had a top secret security clearance. This issue of whether a special master ought to be appointed after the documents were reviewed and after a filter team at the DOJ, DOJ lawyers, but not lawyers involved in this prosecution, have pulled out what's attorney-client privilege and are prepared to return it to Trump. That issue will be argued in federal court in West Palm Beach, Florida tomorrow. It does not appear after reading the filing from the DOJ that was filed last night as though the judge will appoint the special master. Again, it would be too little too late

and disruptive to the government's work. What did they file last night? Last night, they filed an explanation of what they found at the president's home, the former president's home, including a photograph showing top secret materials. Here it is, strewn on the floor. Now what you're looking at is just a couple of feet from the desk chair where former President Trump sits at his desk. If you look carefully, that one in the center with the sort of burnt orange border shows secret SCI. Secret SCI is the highest level of top secret there is, and those other ones with the yellow borders are also top secret. That these should be found on the floor of the former president's office commingled with other documents shows the failure to secure these, shows that he knew he had them. Now, when he saw this

picture, here's what he said, to be fair to the former president, terrible way the FBI during the raid of Mar-a-Lago threw documents haphazardly all over the floor, perhaps pretending it was me that did it, exclamation point, and then started taking pictures of them for the public to see. Thought they wanted them kept secret. Lucky I declassified. Very, very bad for the president to have said that. By saying it, he's admitting he had these documents. So the defense that, well, they were just packed up by the GSA, the Government Services Administration. That's the people that are the custodians of the White House. They were just packed up by people.

I didn't know anything about it. That defense is gone by the wayside. He knew those documents were there. He's still claiming that declassification is a defense. It is not because he is not, the government anticipated that defense. And it is not about to charge him, excuse me, with possessing classified documents. It is about to charge him with possessing national defense information, which is a crime to possess outside of a federally secured area,

whether it's classified or not. And as for the FBI strewing them about, look, the FBI does do those things. I can't imagine they did it this time. Why? There's a security camera in that office which filmed the FBI raid. The security camera will show if the FBI threw these on the floor and then took a picture pretending that's the way they found it. If that's the case, the FBI agents who did that will be prosecuted for tampering with evidence. If it's not the case, if that's the way they found it and the tape shows it, then the president in the statement that we just showed you and that he posted yesterday,

and which I just read to you, is Trumpian bluster, which does not help his case. In fact, it helps the government's case for the reason I just suggested. He acknowledges that he had these documents. Look, I am not in favor of this prosecution. It does not give me any joy to be explaining this, but the president is in hot water entirely by his own behavior, much of which is after he got lawyers in this case, who I'm sure have told him, don't make public statements until you know what the government knows and until you've been accused. President Trump is committing a mortal sin of criminal defense. Do not deny until after you've been accused. You don't know what the government knows and you don't know

what they're going to accuse you of. They are prepared to accuse him of crimes that do not have as their defense that the documents were declassified. Back to the documents that the feds submitted with Judge Eileen Cannon, who'll hear the special master application on Thursday. Those documents reveal the following. One, the lawyers for President Trump, with whom the Feds negotiated, never said that anything was declassified. That would be very unusual for them not to say that because they knew that the Feds had obtained 184 documents that were marked classified, at least 67 of which were marked top secret. Two, after the Trump folks voluntarily surrendered these documents, from which 100 classified documents or 184 classified documents were found,

they asked if there were any more classified documents remaining on the property. A Trump lawyer, whose name mercifully has been redacted, swore under oath that a diligent search for these documents found no more classified documents. Feds didn't believe this lawyer. They haven't identified who it is, but whoever this lawyer is either lied under oath and made a material misrepresentation to the government, two crimes, or was misled by Trump and made a material misrepresentation to the government, in which case this lawyer will be a witness. And because there is obviously some deception here, either from Trump to the lawyer or from the lawyer to the DOJ or both, where the lawyer or the client are involved in deception, there is no attorney-client privilege. Again, this is a mess. I just can't

overemphasize how grave G-R-A-V-E the former president's legal woes are. Whether you like the FBI or not, I don't. Whether you like the DOJ or not, I'm skeptical of it. Whether you think these laws are sound, I think many of them are unconstitutional or not. These are the laws under

which we operate, and this is the way the government is moving. It is moving progressively and aggressively against the way the government is moving. It is moving progressively and aggressively against the former president. By misleading the government as to whether or not there were documents there and by moving documents from place to place, Trump or people at his direction engaged in the action of obstruction. Obstruction is the failure to return or the intentional concealing of documents that belong to the government. Okay, Trump says the documents are his. left the White House with just 36 hours notice, actually about 20 hours notice, at noon on August 9, 1974, when he resigned. And he flew to his home in Yorba Linda, California.

He reached out to the man who became the president, Gerald Ford, and said, I want my documents and tapes. We didn't have time to pack everything up. They're all over the White House. Ford didn't know what to do. The attorney general had resigned. So Ford went to the head of the Office of Legal Counsel. That's the small law firm within the DOJ, the best and the brightest of the DOJ's lawyers, to advise him as to what to do. The head of the office of the legal counsel was a lawyer by the name of Antonin Scalia. Yes, that same Antonin Scalia, who said, well, the documents belong to the president. Every president since George Washington has taken his own documents with him.

Ford told that to Nixon. Ford told it to the Congress. Nixon said, okay, pack up the documents, Jerry, and send them to me. Congress said, wait a minute. Congress enacted the Presidential Recordings Act of 1978, which said the documents belonged to the government. And then Nixon sued Ford and sued the government for the documents. The case went all the way to the Supreme Court, and the Supreme Court ruled unanimously, nine to nothing, that presidential documents belonged to the government and not to the former president. It also ruled that there is no executive privilege between the former president and the executive branch. There may be an executive privilege as against the Congress, but there's no executive privilege as against the Department of Justice,

and there is absolutely no executive privilege when the president leaves office. So look, all of this is not good news for the former president. I don't even know what his defense would be. His Department of Justice, ironically, charged Julian Assange and Edward Snowden with the very same crimes for which he is now about to be charged. Trump commented once to my former radio partner and Fox colleague and buddy Brian Kilmeade, and once in a more public setting, the comment to Brian Kilmeade was taped, that both Assange and Snowden should be executed. Well, fortunately for Assange and Snowden and Donald Trump, these statutes do not have capital punishment as the penalty. But Assange and Snowden have defenses. They are American heroes. Assange revealed war crimes committed by the Bush

administration. And the Pentagon Papers case says when you work for the media, and he did at the time, he ran and owned and was a journalist for WikiLeaks, and you receive information materially in the public interest, even if that information is stolen, you are insulated from criminal and civil liability for publishing it, as long as you're not the thief. Sonich is protected by a Supreme Court opinion. Snowden's protected by the Constitution. He revealed that the Bush and Obama administrations had been engaged in the most massive,

massive violation of human liberty in wartime in the history of the United States by spying without warrants on everybody in the country. He's protected by the Fourth Amendment. I don't know what protects Donald Trump. Judge Napolitano for judging freedom.