Judging Freedom - Trump Indicted on 7 Counts in Classified Docs Probe

Episode Date: June 9, 2023

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, June 9th, 2023. It's 6.50 in the morning here in Los Angeles, where I find myself doing some commercial work today. Today, of course, the big news is the indictment of former President Donald Trump. Regular viewers of Freedom Watch, of Judging Freedom, sorry, Freedom Watch, my old show at Fox, are aware of the legal analysis that I have done my best to make available to you concerning this. Now we see all of this coming to a head, whether you like the former president or whether you don't like him, whether you want him to be president again or whether you don't want him to be president again, whether you think I like him, which I do, or don't like him. These are as pure and unadulterated a legal analysis

as I can provide, which is, of course, what you have come to expect from this show. We now know that Donald Trump has been indicted by a federal grand jury in Miami, Florida, for a variety of crimes. Pardon me. We don't know exactly what the crimes are, because the indictment is under seal, meaning it is literally in an envelope. And the only people that have seen it are the members of the grand jury, 23 of them, because they voted on it. Whoever actually typed it, printed it up, the prosecutors in the case, and maybe

one or two clerks involved in the process of printing it, distributing copies to the grand jury, taking those copies back. But the official copy, the one signed by the foreperson of the grand jury and by whichever federal prosecutor is in charge of this case, we don't know who, but we'll find out in a moment, is under seal and the prosecutor's office in Miami will be presented formally and publicly to a federal judge at 3 o'clock in the afternoon Eastern time in Miami. So let's start with some basics. Why Miami? Well, the Constitution says that when the government is going to prosecute someone, talking about the federal government now, that person should be prosecuted in the judicial

district where the crime occurred. As you may know, the country is divided into judicial districts, depending upon the geographic size. New Jersey is one judicial district. New York and California, where I am now, are four. Florida is three. So the Southern District of Florida, which is basically the bottom one-third of Florida, is a judicial district. In that district is the city of Miami and the city of Palm Beach, where Mar-a-Lago is located. So if the government is going to allege that the, and it appears that it is, that these crimes occurred at Mar-a-Lago, President Trump's residence in Palm Beach, Florida, then the government is obliged to bring those charges in that district. If the government is going to say there was really one continuous crime that began in the White House as he was taking documents with him or planning and plotting to do that, which the government says is a crime, it could conceivably argue that the crime commenced in Washington, D.C., and therefore the charges should be brought there. It still has the

opportunity to bring more charges against President Trump. I'm not talking about January 6th. I'm talking about documents in Washington, D.C., if it wants. It also, as we know, used the Washington, D.C. grand jury as a filter for those witnesses who refused to be interviewed ahead of time by FBI agents. The first time the government heard any words come out of their mouths was in front of a grand jury in D.C. If they said something, the witness said something, the government didn't want the grand jury to hear. They didn't have to worry about it because the indicting grand jury is a thousand miles away in Florida. They then would not bring that witness to the indicting grand jury. Does the defendant get the transcript of both grand juries? The defendant

gets the transcript of every witness who testified against him or who testified and whose testimony is relevant to the case. Now, back to what we think the charges are. Actually, let me go to the procedure. President Trump will appear in a federal courtroom at 3 o'clock Eastern in Miami on Tuesday. I doubt that this will be the circus that his appearance generated in New York when he was indicted by the Manhattan district attorney. The feds are a little bit more secure, a little bit more serious, a little bit more heavy-handed, a little bit less deferential to the press. I think they would be more deferential, but they're not, than state prosecutors and state court judges are. Will it be televised? No. Federal courts do not permit

video or live or even still shot photographs in federal courtrooms. So you're going to see the old-fashioned sketching of Donald Trump standing in front of a federal judge. Will he be given bail? He surely will be given bail. Will he be arrested? Technically, yes. Not where they will bang down the door of Mar-a-Lago and drag him out. They basically have said to his lawyers, we need your client to appear at three o'clock on Tuesday in federal court in Miami. Here's the address. Here's the person who will arrange for the appearance so that he can drive in through a basement garage underneath the courthouse, and that courthouse does have that facility. But it technically will be an arrest, and Andy will be booked, meaning his

mugshot will be taken, his fingerprints will be taken, he'll be weighed and measured. He'll then go up to the courtroom and the judge will announce what the charges are and ask the former president if he understands them or if he needs to have them explained to him. He no doubt will say he does understand. And then bail will be fixed at what we call ROR, released on his own recognizance, meaning, where is he going to go? I mean, he's the most well-known face in the world. He can't really escape. I suppose he could flee to a country that doesn't have an expedition treaty with the United States, like Ireland, where he has one of his golf clubs. But I don't think that Donald Trump will do that, and I think the judge will probably agree as well. As for the charges now, we know that they're in three categories. They are under the

Espionage Act, they are obstruction of justice, and they are conspiracy. Now the Espionage Act makes it a crime to possess national defense information outside of a secure federal facility. That's a crime for everybody. This has nothing to do with whether or not the documents were classified or unclassified. The former president sort of fell into a trap when the FBI at first executed a search warrant on his house saying, ah, don't worry, I declassified that stuff. They had anticipated his saying that. The charge has nothing to do with classified documents. And quite frankly, the Espionage Act, which was written in 1917, 40 years before the classification system came into play, the Espionage Act doesn't even mention classified documents. It only mentions national defense information. of data about the national security, national plans, military plans, nuclear plans of the

United States or of any other government. The United States regularly derives these plans about other governments, even its allies. It flips agents. So it'll go to an agent of the Mossad, Israeli intelligence. It'll go to an agent of MI6, the British intelligence, and it will say, you know, we'll make you very rich if you work for us as well as for your bosses. That, of course, is a crime, in some cases punishable by death for the other country. But they do that. Sometimes that happens, not so frequently, thank goodness, but sometimes that happens to our own agents. Anyway, that's one of the means by which they derive this information. And because the information,

the data, the national defense information contains all of this, here's how I got this, here's what we paid the person, here's who the person is. That stuff is the most highly protected information in the federal government, because if it got out, even inadvertently, it could result in torture and death to the individual who provided the information. It could also result in a fracture of the relationship, the diplomatic relationship between the United States and the country from which that informant came. So that's probably the type of information that was in these documents. The government has very shrewdly avoided the classified, declassified dispute. The former president has argued he could declassify something

just by thinking it declassified. That is not true. The statutes provide for a procedure for declassification, which requires the declassifying authority, declassifying authority, that would be the president, in this case the White House, telling the author of the document, we're about to declassify it so that the author can say, well, okay, but don't declassify this name or this date or this place because this guy will get killed. You have to go through all of those procedures before declassifying. You can't just willy-nilly declassify everything. But this dispute over classification and declassification is not in this case, because the indictment, I am sure, of course, I haven't seen it yet. The indictment, I am sure, accuses the president of violating the Espionage Act

by the failure to secure NDI, National Defense Information, moving or hiding NDI, national defense information, sharing NDI, national defense information, with other people. So if the president gave a box to somebody that works for him at Mar-a-Lago, and in that box was any of this NDI, and he said to that person, bring this to Mrs. Trump's clothing, shoe closet, which happened, or bring this to the storage unit in the basement of Mar-a-Lago, that would be an illegal sharing. That would be an illegal movement. That would be an illegal failure to secure national defense information. So there's three or four potential crimes right there. The government will apparently also argue that other people were involved in this. I don't know who they are or what their involvement may have been.

I say this because one of Donald Trump's lawyers, Jim Trustee, whom I know and like and whose work I admire, said on CNN last night that the summons that he received, that the president received, which was emailed to Jim Trustee, the president's chief lawyer in this case, mentioned conspiracy. Now, conspiracy is an agreement between two or more persons to undertake an illegal act where at least one of those persons took a step in furtherance of the conspiracy. You've heard me condemn conspiracy crimes, and I'll do so again now. They are thought crimes. People are being punished for thought. The great Clarence Darrow, one of the greatest trial lawyers in American history, used to argue this way

when he was defending a conspiracy case. Now this is 125 years ago, so the numbers are going to be off. If a boy steals a dime, if a boy steals a dime, he's not going to go to prison. A very small fine will be an appropriate punishment. But if two boys conspire to steal a dime and then don't do it, they are candidates for prison. What kind of a country does this to its own people, Darrow asks. And then he doesn't answer. He doesn't say ours because it's kind of obvious what the answer is. So conspiracies by their nature don't succeed. They're just an agreement. So the government is charging Trump and others, the others in a minute, for an agreement to violate the Espionage Act by moving these documents around. Now, who are the others? We don't know who the others are. Does

the government have to name them? No, it does not have to name them. The government may know who they are and can call them conspirator one, conspirator two, conspirator three, or it could say others unknown to the grand jury conspired with the president. I mean, this really is a low ball when they charge a conspiracy and don't even name the conspirators. But that is apparently one or two of the charges against Donald Trump as well. So we have two categories of charges so far. We have the Espionage Act, basically the failure to secure, the the failure, the handing to a person without a authority of the documents. We have a conspiracy to violate the Espionage Act,

and now we have a totally separate category of crime called obstruction of justice. Obstruction of justice is basically interfering with a governmental function, in this case, sending the FBI on a wild goose chase, knowing what they were looking for. There apparently is a lot of evidence about Trump directing people that work for him and Trump himself doing this, hiding and moving documents around Mar-a-Lago. Now, if you've ever seen Mar-a-Lago, it's enormous. It's about 50,000 square feet, just the building itself. We're not even talking about the grounds and the area underground. So it's a huge, huge facility, which is his principal residence, as well as a private country club that the Trump organization operates.

So the moving and hiding of documents around Mar-a-Lago would be another offense, which would be considered obstruction of justice. Now, all right, he's supposed to secure it. Can't he secure it? Well, yes, but if he knows that it's not his, and if he knows that the government is coming for it, if he knows that it's subject to a subpoena, if he knows that it was subject to a search warrant, he can't hide it. There is, of course, the natural inclination to want to hide something that the government is trying to take from you. But that actually compounds your criminal woes, as is the case here.

So the frustrating of the government, the hiding, the moving of the documents, that's obstruction of justice. Now, will he actually be tried? I think he will be tried. He's not going to plead guilty to any of this. It would be catastrophic for his personal freedom and for his political aspirations. When would the trial happen? In the federal system, about a year between the time of indictment and the time of trial. So we're talking about June of 2024. That's a month before the Republican National Convention, which of course would be highly relevant for Trump if he is still in the race by then. If you listen to Chris Christie and

Mike Pence and the others, they don't think, and Ron DeSantis, they don't think that Donald Trump will be in the race by then. If you listen to President Trump, he doesn't think that they're going to be in the race by then. Nobody, of course, can predict the future. But there most certainly will be a trial before a federal judge and a jury. The jury will be selected from the Southern District of Miami. So it's not just the city of Miami. It's from all those who are registered to vote in the lower third of

Florida. It'll be a cross-section of Floridians. It'll probably be a jury pool more favorable to President Trump than if he had been indicted in D.C. But by indicting him in Florida, as I said earlier, the government avoids the issue of where he should have been indicted, and the government complies with the constitutional requirement that defendants are to be tried in the judicial district in which it is alleged the crime occurred. Will another indictment come? I think two more indictments will come by this special prosecutor. I think the grand jury in Washington, D.C. will also indict the president on similar charges for his behavior in the White House. And I think another grand jury in Washington, D.C. will indict the president for his behavior on January 6th. As well, a state grand jury in

Atlanta, Georgia will surely indict former President Trump, I think along with former New York City Mayor Rudy Giuliani and others in Atlanta, Georgia for their efforts to overturn the election in Georgia. When will those cases be tried? It'll depend on when the indictments come down. What will happen to Donald Trump if he is convicted of espionage and obstruction of justice? I am sorry to say this, and I'll say it twice. He will go to federal prison.

He will go to federal prison. The government takes with the utmost seriousness violations of the Espionage Act, especially when they're in tandem with obstruction of justice. It doesn't matter who you are. It doesn't matter what the public uproar will be. If he is convicted of any of the espionage charges or any of the obstruction of justice charges, he will go to federal prison. Can he run for president while all this is going on? The short answer is yes. When the courts need him in the courtroom, he's going to have to be there. But of course, he can run for president. Can he run for president from jail? Never happened before. It would just be a guess

on my part, and the answer would be yes, he can. I'm not sure that the Republican Party would want to nominate someone who's in jail, but theoretically he could. The only requirements for running for president are age, citizenship, and residency, And Donald Trump meets, of course, all those requirements. So I'm in California for the weekend taping television commercials back on Monday for regular judging freedom. Of course, as this happens, more as we get it. Please remember to like and subscribe. We're up to 161,000 subscriptions. Our goal is 175,000 by the 4th of July. That's just a great holiday, but it's just four weeks away. Judge Napolitano for judging freedom.