Judging Freedom - Fallout from Trump's Mar-a-Lago search by FBI

Episode Date: August 15, 2022

Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned https://www.nytimes.com/2022/08/13/us... #Trump #FBI #GarlandSee 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 Monday, August 15, 2022. It's about 10.15 in the morning here on the east coast of the United States. A lot to talk about today. The fallout of the FBI execution of a search warrant at the home of former President Donald Trump literally a week ago as I speak continues to interest and antagonize people depending upon which side of this issue you're on. And there's a lot of technical legal questions, which I want to address, and I will do my best to explain them to you. As we generally understand it, when the president left the White House on January 20th, 2021, a few hours before Joe Biden was sworn in to succeed him, he took a lot of materials

with him. And when the National Archives did an inventory in the earliest days of Biden's administration, just as they did in the early days of Trump's administration and Obama's administration and George W. Bush's administration, they concluded, because there was an electronic record of the existence of these documents, that a lot of them were missing. They reached out to Mar-a-Lago and Mar-a-Lago said, yeah, we have a lot of stuff here belongs to the president. They sent some people down to view these documents and Trump's representatives and the National Archives representatives agreed that a lot of them were federal government property and the archives representatives took about 15 boxes back. Then the archives came to the view that

some of the things that the Trump people did not show them were classified. Then they began negotiating with Trump's people again about returning classified documents. When Trump's people did not return what the archives wanted, the archives went to the Department of Justice. Then the Department of Justice began negotiating with Trump, and that didn't get anywhere. Then the Department of Justice presented this matter to a federal grand jury in Washington, D.C. Now, grand juries only do, in the federal system, only do one thing. They investigate crimes. So the DOJ concluded that some crime was committed in the process of getting these classified documents from the White House to Mar-a-Lago. Then the grand jury subpoenaed the documents. Now, when you get a grand jury subpoena, you only have two choices, or three choices. One is to move to quash it. A lawyer goes before the judge overseeing the

grand jury and moves to quash the subpoena, or you comply with it, or your lawyers call up the DOJ and you negotiate some middle ground, which is what Trump's people did. At the end of that negotiation, one of Trump's lawyers sent a letter to the DOJ saying, we have now given you all classified materials. That letter is very, very troublesome because it was inaccurate. So the question now becomes, what was the basis for the lawyer? Chris, my dog here getting a little excited. What was the basis for the lawyer making that statement? Was it the lawyer's own observation and conclusion? Was it something Donald Trump told the lawyer? It was obviously not true. If it was an act of deception on Trump's part to the lawyer or on the lawyer's part of the DOJ or both, then the lawyer must resign from the case, can no longer represent Trump because that lawyer will be a witness before the grand jury. And once that happens,

there's no attorney-client privilege going forward and going backwards, meaning the grand jury can ask the lawyer, one second, Chris. He's a ham like his owner. Chris, come on. Then the grand jury, the lawyer can testify before the grand jury, not only about what the lawyer knows, but about what the lawyer did. This is very, very dangerous for President Trump if his lawyer becomes a witness against him. But that's the consequence of engaging in an act of deception if the letter to the DOJ was an act of deception. Now, what has Trump been charged with? Without getting into the technical nomenclature and the technical sections,

it's basically three statutes. One prohibits gathering secrets. Another prohibits removing or concealing secrets. The third prohibits destruction or alteration of secrets. Now, the president has argued that he declassified everything that he brought to Mar-a-Lago. That may very well be true, but declassification is not a defense. Secrets are secrets no matter whether they're classified or declassified. So if Trump has a document that shows the inner workings of an American atomic bomb or a foreign country's atomic bomb, or the identities of undercover agents in the Middle East, American or foreign, or the transcripts of surveilled conversations with foreign heads of

state, those things are still secret whether the president has declassified them or not. So the allegation of gathering these things, of removing them to a non-secure, non-government place and destroying or altering them, the fact that they have been declassified is not a defense. Now, how do you declassify? The president can't just wave his hand and say declassified, declassified, declassified. He has to do several things. One is to sign an executive order of the document that it's no longer classified the preparer of the document needs to know my god the information in there is no longer declassified and the third is to physically alter the document by signing it declassified by order of the president and then that famous signature of his with the date of the declassification. It doesn't appear that that government secrets even those that are declassified in his safe he has gathered them he has removed them and he has concealed them those are all violations of the espionage act look i say this as as somebody who profoundly believes that almost

all federal criminal statutes are unconstitutional. I'll tell you why in just a minute. But as a lawyer and a former judge and now a podcaster, it is my job to explain the law to you. The law is not just, but this is the way the law works. If you gather, remove, or conceal secrets, the government will come after you no matter who you are because the government protects its secrets. It protects its secrets because it says to its intelligence agents, military, CIA, NSA, don't worry about risking your life. Your identity will never be revealed. Your sources and methods will never be revealed. Your sources and methods will never be revealed. The people you communicate will never be revealed. We will guard this stuff. And so the government takes that guarding very, very seriously. You have heard me argue that much of this is

unconstitutional. My friends, there are 5,500 federal criminal statutes. In my view, only two are constitutional. The only two that are mentioned in the Constitution, treason and debasing the money supply. In the old days, that would be replacing silver and gold with a substitute that looks like silver and gold. Today it would be putting counterfeit bills into the money system. When Madison wrote the Constitution, when the ratifiers ratified the Constitution, they expected that all criminal laws except for those two would be enacted and enforced by the states, and the federal government would have no business in the criminal justice system. In fact, when Washington assembled his first cabinet, there was no attorney general.

The Department of Justice is 150 years old. The country is 230 years old. The country is 230 years old. It wasn't until big government began to rear its ugly head that we even had a Department of Justice. Now, what about Hillary? Well, Hillary was prosecuted or wasn't prosecuted under a different Department of Justice. When Jim Comey came before the microphones on the weekend of July 4th in 2016, I remember this very well. I was in Italy at the time, and Fox, where I was employed, found me and put me on the phone and then put me in front of cameras. He made a statement that wasn't his to make. We're not going to charge Mrs. Clinton. That is not a judgment for the FBI. That is a judgment for

the Department of Justice. And while I'm at it, there's so much criticism of the FBI. That is a judgment for the Department of Justice. And while I'm at it, there's so much criticism of the FBI. Every FBI agent works for a federal prosecutor. Every FBI agent works for a federal prosecutor, either directly or indirectly. The FBI doesn't conduct searches unless the DOJ, a federal prosecutor, gets a search warrant from a federal judge and instructs the FBI to execute it. So the wrath against the FBI shouldn't be. The wrath should be against the, if you have wrath, should be against the DOJ. Now, a couple of questions have been put to me by well-thinking viewers of Judging Freedom. The judge who signed the search warrant, and the search warrant is signed by a wheel. In other words, whoever's name is next on the wheel gets this, unless you're the

emergent duty judge. In this case, the emergent duty judge was sick or was otherwise occupied. So it was just a matter of a luck of the draw that Judge Reinhart got this. However, Judge Reinhart once recused himself from hearing a case in which Donald Trump is suing Mrs. Clinton. So a lot of you have asked, well well if he recused himself from that why didn't he recuse himself from this short answer is we'll never know because recusal the decision to leave a case is the only decision a judge makes that he doesn't have to give reasons and it's not appealable and having done this i can tell you sometimes you recuse yourself for a lot of reasons you have strong feeling about the outcome get off the. You don't like one of the litigants. Get off the case.

The case is a pain in the neck. There are hundreds of thousands of documents. I don't have the time. I have more important things on my docket. Get off the case. I'm about to go on vacation. Get off the case. My mother-in-law was just telling me horrible things about one of the litigants, and she said it in a public restaurant, get off the case. There are a lot of reasons personal to a judge for getting off the case, which is why that's the only decision, the reasons for which don't have to be revealed and it can't be appealed. Last question that I've been asked. Some of my television colleagues apparently yesterday said that Trump's lawyers had asked Attorney General Garland for a special master.

Well, they made a mistake. You don't ask the government for a special master. You ask the judge for a special master. What does a special master do? A special master looks at the documents that have been seized. This is not a government employee. This is a lawyer, usually an ex-judge, like yours truly, appointed by the judge in the case. A special master looks at the documents to decide if any of them are attorney-client privilege, in which case the feds don't get to see them.

They go right back to the possessor, the original possessor of the document, in this case, Donald Trump. Merrick Garland is never going to agree to a special master. I'm sure those documents have already been examined by the government's experts to decide whether they're top secret or not. So Trump's lawyers, probably not experienced in litigation, are too little and too late on the appointment of a special master. I see a lot of questions coming in. Don't hesitate to ask me these questions, and I'll come on air and answer them. I'll even come on a little later today as the questions build up and as the news changes. You all probably know that I've been a friend of

Donald Trump for nearly 40 years, going back to when I was on the bench and was a colleague of his sister. She a federal judge at the time, I a state judge at the time. We tried a case together, half very unusual, but we did this, half in her courtroom, half in my courtroom. If you know New Jersey, I was seated in Hackensack. She was seated in Newark. The lawyers were driving back and forth all day, every day. But during that time, we became friends, and that's how I met her brother. And then later on, I got to know him socially. And then of course,

he was a regular on Fox and Friends when I was a substitute co-host on that show. So what I say has no animosity towards him. He twice considered me for the Supreme Court of the United States, and he had some other wonderful candidates on those lists, one of whom he chose from each list. I don't like the laws I'm talking about. I don't believe they're constitutional. But my job is to explain the law as it is, not as I want it to be, as the courts have interpreted it, not as I would have interpreted it, as the DOJ will enforce it, not as I would enforce it, so that I can help you to understand what the heck is going on. I expect a lot grand jury in Atlanta, Georgia, investigating what the government says is an effort to send phony electors, false members of the Electoral College from Georgia to the Electoral College in Washington, D.C. He challenged that subpoena from the grand jury,

lost the challenge, and he now must testify. Senator Lindsey Graham received a similar subpoena from the grand jury, lost the challenge, and he now must testify. Senator Lindsey Graham received a similar subpoena. He challenged it as well in federal court. Mayor Giuliani challenged it in a state court in Georgia. He lost. Senator Graham challenged it in a state court in Georgia. He lost. Both will now have to testify before those grand juries. There doesn't seem to be any end to Trump's legal woes. Judge Napolitano for judging freedom.