Judging Freedom - DOJ asks judge to force Trump lawyers to testify in Jan. 6 probe

Episode Date: October 26, 2022

Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, October 26, 2022. It's about 1035 in the morning. There's some secret litigation going on in the federal courthouse in Washington, D.C. that I want you all to know about. Judge, what do you mean secret litigation? I thought courtroom doors were open and the press was allowed. Well, generally, yes, but there are some times when it's not, and one of those times is when it pertains to grand juries. Grand juries, as you know, meet in secret. They gather evidence. Prosecutors bring in witnesses and bring in tangible evidence and show it to the grand jury. And then theoretically, the grand jury decides whether or not to indict someone. And theoretically, if the person is not indicted, then the world doesn't even know that they were the subject of an investigation.

I keep saying theoretically, that's the way it's supposed to work. In reality, if the prosecutor wants the grand jury to indict someone, it will do so because there's no judge in that room. There's no defense lawyer in that room. And if the prosecutors want to leak what happens before the grand jury, they will make sure that it gets out. That's why I kept saying theoretically, theoretically. Well, theoretically, the prosecutors have subpoenaed former President Trump's lawyers in the White House, and they, of course, because the subpoena is secret and the testimony will be secret and the grand jury meets in secret. So secret motions to suppress those subpoenas. And they lost the motion to suppress the subpoenas and the lawyers are now scheduled to testify before the grand jury. So a judge has ruled that there is no executive privilege and there is no attorney-client privilege for the former president to assert.

The former president is appealing that to the federal appeals court in Washington, which sits in the same courthouse as the federal trial courts do. But I believe that the testimony will happen before the United States Court of Appeals for the District trial courts do, but I believe that the testimony will happen before the United States Court of Appeals for the District of Columbia Circuit, which is what the appeals court, the federal appeals court in D.C. is called, can even hear the appeal. There are, however, a lot more members of Trump's inner circle in the White House who have been subpoenaed by this grand jury. All of this has to do with either January 6th or the removal of classified documents from the White House. So this shows that the DOJ is ratcheting up its investigations of Donald Trump's behavior on or about January 6th? Was it an effort to

overthrow the government? Did he lead the effort? Did he know what was happening? Did he intentionally look the other way while the Capitol building was being trashed? Is he an innocent bystander? Did he honestly think that these people were just expressing a political opinion? These are all the issues the grand jury will have to sort out, and the feds are trying to get their version of these events in front of the grand jury. To me, it's fascinating that these issues are being litigated in secret. We won't even know the rationale behind the judicial decisions until after all this is over with. If Trump is indicted or if anybody is indicted, well, then we'll see how the judges ruled and why they ruled. If Trump is not indicted or

nobody's indicted and none of the White House people have been indicted for January 6th and nobody's been indicted for the retention of national defense information at Mar-a-Lago, presumably. I say presumably because there's such a thing as secret indictment. Somebody could have been indicted already and the government just hasn't unsealed or opened or revealed the indictment yet. I don't think that has happened in this case. I don't like all the secrecy. I understand the reasons for it. It's traditional in the Anglo-American system that grand juries meet in secret. I do think that when judges make profound legal rulings, when they make any legal rulings, it should be in public so that the public knows what's happening, so that lawyers and other judges know what these rulings are, so that we can

agree with them, disagree with them, comply with them, or challenge them. But that's not the way the system works. Right now, the DOJ is winning its arguments before federal judges in Washington and Trump's people are being compelled to testify. More as we get it. Judge Napolitano for judging freedom.