Judging Freedom - Trump Affidavit Released - with Sec Jeh Johnson

Episode Date: August 26, 2022

Thoughts on the Mar-a-Lago Search and the President’s Classification and Declassification Authority https://www.lawfareblog.com/thoughts-... #Trump #fbiSee 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 with Judging Freedom. Today is Friday, August 26, 2022. It's about 1245 in the afternoon on the east coast of the United States. My guest today, who was previously scheduled to chat with us, is Jay Johnson. Secretary Johnson is the former General Counsel to the Air Force, former General Counsel to the Department of Defense, and former Secretary of Homeland Security in the Cabinet of President Barack Obama. Full disclosure, he and I are longtime and close friends. By coincidence, I have as a guest today someone who professionally created, classified, and declassified some of the nation's most important secrets. My interview with Secretary Johnson, which will begin live

in just a few seconds, comes within moments of the release of the redacted affidavit submitted by the FBI to a federal magistrate judge in West Palm Beach, Florida, three weeks ago, which the judge found contained probable cause of a crime and probable cause of the evidence of crime in the premises and home and club of former President Donald Trump, commonly referred to as Mar-a-Lago. So though the Secretary and I were planning to discuss some other but related matters, we're going to be discussing that affidavit and the process for classifying documents and declassifying them. Secretary, that is the longest introduction I've ever had for anybody. Thank you for listening to it, and thank you for joining us today on Judging Freedom.

Judge Napolitano, I always appreciate a good wind-up to the pitch. You're old enough to remember a pitcher by the name of Louis Tiant. A wind-up the likes of which has never existed before or after. There you go. Right. He actually turned around and in Yankee Stadium faced the bleachers at one point in his life. You and I have together, but without commenting on it substantively,

just reviewed the taffeta, regrettably, but without commenting on it substantively, just reviewed the affidavit, regrettably, but not surprisingly, the juiciest parts that everyone wants to see, which is how the FBI knows what they told the judge they knew, is redacted. It's blacked out. But tell us, please, first your initial impressions of this, and then we'll get into some more specifics about what's classified, what's secret. How can something be a national defense secret but declassified at the same time? Good questions. that I saw upon my very quick read of the affidavit in support of the search warrant was that the offenses cited do not require per se that the documents being sought be classified. The statutes invoked basically prohibit removing, hiding from the U.S. government records of the U.S. government, sensitive records of the U.S. government.

Having said that, let me tell you a little bit about how classification and declassification works. I got to ask you this first. Can the president just wave his hand and say, all this is declassification works. First? I got to ask you this first. Can the president just wave his hand and say, all this is declassified. If I ship it to Florida, it's automatically declassified. Can he do that while he's the sitting president? Well, first of all, well, in theory, yes, a president, a commander-in-chief can wave his hand and say this piece of paper and the information contained therein is hereby declassified. That is because the system of classification that we have is not something created by law. It is created by executive authority. And the president is the executive. The president is the commander in chief. And the classification system was created

by an executive order written, signed by a president years ago. And therefore, the president, by definition, can change it, revoke it, revise it, however he or she wants. Now, even though the president technically has that authority, it would be extremely unwise and probably irresponsible for a commander-in-chief or president to just simply say, I hereby decide that this document or this information is declassified without consulting the various relevant agencies of our government to understand the implications of declassifying something. Am I compromising sources and methods? What is the implication of this? Right. So suppose a document has really sensitive information in there, like the names of foreign agents who are double agents who are working for us. Information which, if made known or not properly kept secret, could result in immediate and irreparable harm, like their deaths. If the president were going to declassify that,

doesn't he have an obligation to inform the preparer of the document that it is no longer top secret? Well, you just touched upon my next point, which is that part and parcel of declassification is informing somebody else that you've declassified this piece of information. A document is not classified. The information in a document is classified, which is why when you look at a classified document, you will see a legend paragraph by paragraph indicating the level of classification of the particular information. So, you know, the opening paragraph of a very classified document might say, this document is authorized by Jay Johnson, Secretary of Homeland Security.

He was born in the year 1957. He's a really nice guy. And one of his best friends is Andrew Napolitano. None of that is classified information. So you would see next to that paragraph a U, unclassified. Then you get into the next paragraph. You might see information at the secret level, and then in another paragraph you might see information at the top secret level. So information is classified, not a document itself, federal government, this information that you have in your files or that you have on your classified email system or that you have in your head is now declassified and you may treat it as such. It is absurd and unheard of to say that declassification occurs simply by removing a document from

somebody's office and taking it home with you without telling anybody that you've done that. That's not real. That's not an act of declassification. That's simply taking very sensitive information and removing it from a place where it should be. Is it true, is it accurate for me to say that something can still be secret but declassified? Let me reframe that. Something can remain classified even though you have put it in an insecure place or you have shared it with someone who is not authorized to see it. Let's get specific. If Donald Trump has in his safe or had in his safe at Mar-a-Lago documents that are national defense implicated, were once at the top secret SAP or SCI level and of sensitive information in them, which, if made known to someone without this authorization, could and was cause irreparable harm. That is reasonable and feasible, is it not? Yes, that is correct. The eventual natural security is the same, whether the document is properly classified or somebody waved a wand and declassified it. You might be compromising some of the Espionage Act of 1917 and one section of the Presidential Recordings Act,

I think of 2018. I actually think President Trump signed an amendment to the act, but whatever year it is, the fact that a document was declassified is not a defense to those allegations. Is that correct? Correct. If a document has been declassified by a president while he's still the president and then his term ends, can the new president reclassify what the former president had declassified? Yes. Okay. Now, you and I went through the affidavit at different times. We read it very carefully, the FBI affidavit. It's 81 pages long. I'd say about a third of it is completely blacked out. I would say about two-thirds of it recites the personal experience of this FBI agent, which is standard in these kind of affidavits. The judge doesn't know this person, presumably. Andrew, I'm sorry. Let me go back to something I just said. You asked me whether

a subsequent president could reclassify something. There are circumstances where that simply is implausible. If a president declassified something and then gave it to the New York Times and gave it to MSNBC and another president tries to reclassify it, a whole lot of news organizations would bring a lawsuit saying, no, you can't. Right, right. But if he declassifies something, but if president number one declassified something and put it in his safe and president number two reclassified it, that would make sense. Yes, it would. Yes. Okay. Now the parts of the affidavit that develop probable cause, which is basically how the FBI knows what they know is all redacted. So we don't know anything from it. In fact, I don't think we really learned anything new other than the fact that this affidavit is extremely thorough and detailed in stating the events that and his lawyers that they had, in fact,

surrendered everything that the subpoena from the grand jury in Washington, D.C. had called for, and hence the reason for the search warrant. Yes. It's apparent that there was a dialogue of some sort to try to retrieve a lot of very sensitive documents, a lot of classified documents. And the dialogue reached a point where the government felt that the former president and his representatives were not being candid with them, were holding out on them with regard to a lot of sensitive information. And they felt compelled, therefore, to take the unilateral act of seeking and obtaining and executing a search warrant. Okay. In your experience as either General Counsel to the Air Force, General Counsel to the Department of Defense, or Secretary of Homeland Security, have you prepared documents which became classified, either classified secret

or top secret, excuse me, confidential secret or top secret? Yes. And the way that works, when an official who has the authority to do that, does that. You create the document, down at the bottom you'll see a legend that said, that says classification authority, J.C. Johnson, General Counsel, U.S. Department of Defense, declassify on, and there'll be a certain date, like 25 years out, and as you know, I'm sure, it is much, much easier to classify a document than it is to declassify a document. Under executive authority, there's a whole process for consulting various government agencies to declassify something. It's much easier to just simply classify it at its origin. What does top secret SCI mean and what does top secret SAP mean?

Top secret SAP, if I remember the acronym, means special access program. SCI means, I believe, sensitive compartmented information. But in plain English, what do they mean? Essentially what that means is there's a program or information that exists in a box someplace. And even if you have a top secret clearance, you still have to be given permission to look inside this box to see this particular program. So it is like super top secret. And somebody gets admitted, read into a SAP or an SEI program person by person by person. And there's a record kept of who has access to it and so forth. So even if you have a top secret clearance, you have to also be given

permission to have information for an SAP or an SCI. Okay. Last series of questions. When you became any one of your three federal government high ranking jobs, General Counsel of the Air Force, General Counsel to the Department of Defense, Secretary of Homeland Security, at the beginning of those jobs, you signed some document promising to keep secret the secrets that were made known to you called Red in. And then when you left the government, you promised that you would still keep those secrets called read out. The president is not read in or read out. He has his authority by virtue of his office. He doesn't have it before he has the office.

And he doesn't have it after he leaves the office. Am I right? Correct. I believe that's correct. I've signed a million non-disclosure agreements in connection with my involvement in national security. I do not believe that a president is required to do so. There may be some super secret program where a president, upon leaving office, has to sign an NDA. I don't control the paper flow on the desk of the Oval Office, but I think you are correct.

Where do you think this goes next, Mr. Secretary? Now I'm asking you as a lawyer, litigator, and person intimately familiar with the way the government works. My thought is the government would not have gone, Merrick Garland, whom you and I both know, the Attorney General, would not have gone this far without pretty much a decision in his mind to ask a grand jury to indict Donald Trump. I don't know that that's necessarily the case. Obtaining, seeking a search warrant for a former president's residence is definitely serious, unprecedented business. I don't know that the Attorney General has necessarily decided to go down the road of an indictment. I think we'll have to see. Okay. I have argued that President Trump's lawyer's application for a special master was like what Douglas MacArthur said is the reason for defeat in warfare too little too late.

The feds have no doubt already gone through everything they've taken from him and a special master with the useless at this point. My read of that is that Donald Trump's legal team was in disarray. And when you're in disarray, it takes a long time. You can't move. You're not very agile. And so it took them days to finally get their act together to decide what it was they wanted to do. And you're right. The milk is out of the carton. So what's the point of getting a special master to take control of the documents when they've been in the possession

of the government for two weeks? Got it. Mr. Secretary, it's a pleasure. I look forward to seeing you very soon. Thank you very much for joining us on Judging Freedom. I hope you'll come back on a regular basis. Andrew, always a pleasure. I have tremendous respect and admiration for you. Our politics don't align, but I have tremendous respect for someone who is intelligent and intellectually honest and consistent, and that is you. Feeling is mutual, Mr. Secretary. Thank you. Thank you.

That's the Politano for judging freedom.