Judging Freedom - Trump Indictment Analysis

Episode Date: June 12, 2023

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🎵 Thank you. Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, June 12, 2023. It's about 9.15 in the morning here on the East Coast of the United States. I'm going to analyze the 49-page indictment filed last week against President Donald Trump, and I'm going to go through the indictment with you. But first, this. When it comes to carrying valuables or even firearms in your vehicle, most people feel they have to choose between safety and convenience. A vehicle break-in occurs every 36 seconds in America. Give dad the perfect Father's Day gift this year. The Headrest Safe.

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a liberal or a conservative, a libertarian, a progressive, an anarchist, an atheist, whatever you might be, you need to know exactly what's in the indictment. The indictment is very powerful, very strong, and makes allegations of very, very serious charges against him. I'm going to analyze this indictment for you now, and I'm taking off my hat as a libertarian and putting on my hat as a legal scholar and former judge, so I can help you get into the thinking of the feds who

crafted this indictment and the grand jury which signed off on it. So there are seven different charges. All of these pertain to the documents in Mar-a-Lago. there are 37 counts in the indictment, but the 37 counts amount to seven different crimes because one of the counts, there are 31 different crimes. So the first count, which is willful retention of national defense information, they accuse him of having done that 31 times. That's how you get 38 crimes, but seven different criminal statutes. One of the statutes, it is alleged he violated 31 different times. But first, a little bit of background. The background here is that the National Archives sought documents from the former president shortly after Joe Biden was inaugurated and Donald Trump had moved himself and his family from the documents that were returned, the archivist noted there were classified materials and NDI.

What's NDI? That's what this case is about, NDI. NDI is National Defense Information. It doesn't matter if it's classified or not. NDI is always and everywhere unlawful for anyone to possess outside of a secure federal facility. It would have been unlawful for President Donald Trump on a vacation from the White House in Mar-a-Lago to possess NDI because Mar-a-Lago is not a secure federal facility. It would be unlawful for President Joe Biden at his home in Rehoboth Beach, Delaware to possess NDI because his home in Rehoboth Beach, Delaware is not a secure federal facility. So the idea that

some of this may have been declassified by the president has been avoided by the manner in which this indictment is crafted. The indictment, though there's a lot of talk in there about classified documents, which basically tipped Trump's hand, which basically told the National Archives and the grand jury and the FBI that he had NDI. The fact that it was classified or that it had been declassified is irrelevant. Stated differently, you cannot make it legal to possess NDI outside of a secure federal facility. What is NDI? We're going to go through a conversation that Donald Trump had with some folks here in New Jersey at his home in Bedminster in which he's discussing NDI. But NDI is information about America's national defense or information about the national defense of other countries or plans to use American military assets against other countries. In one of the more damning aspects of this indictment, which I'll read to you in just a minute, the former president apparently holds the NDI in his hand.

I say apparently because it's an audio tape, not a videotape, I have not hesitated in the past to be critical of former Attorney General Bill Barr when he was the Attorney General under Donald Trump. But here he is yesterday with my former colleague and my friend Shannon Bream on Fox News Sunday, discussing the duty of the government to protect NDI documents. I was shocked by the degree of sensitivity of these documents and how many there were, frankly. So the government's agenda was to get those, protect those documents and get them out. And I think it was perfectly appropriate to do that. It was the right thing to do. And I think the counts under the Espionage Act that he willfully retained those documents are solid counts. Now, I do think we have to wait and see what the defense says and what proves to be true. It's a very detailed indictment and it's very, very damning. Here's Jack Smith on Friday. Jack Smith is the special counsel in the Department of Justice with overall supervisory authority over this prosecution.

The men and women of the United States intelligence community and our armed forces dedicate their lives to protecting our nation and its people. Our laws that protect national defense information are critical to the safety and security of the United States, and they must be enforced. Violations of those laws put our country at risk. Adherence to the rule of law is a bedrock principle of the Department of Justice, and our nation's commitment to the rule of law sets an example for the world. We have one set of laws in this country, and they apply to everyone. Applying those laws, collecting facts, that's what determines the outcome of an investigation.

The prosecutors in my office are among the most talented and experienced in the Department of Justice. They have investigated this case hewing to the highest ethical standards, and they will continue to do so as this case proceeds. Well, I mean, that's the position of the government, obviously. One of the reasons that he said we behave to the highest ethical standards is in anticipation of a defense of prosecutorial misconduct. What's the prosecutor, the alleged prosecutorial misconduct? Well, there's a co-defendant here whose name is Waltine Nauta. Mr. Nauta, a former

naval official who worked in the White House for President Trump, left the White House with Donald Trump and worked for him at Mar-a-Lago. And Mr. Nauta is accused of moving and hiding the documents around Mar-a-Lago and then lying to the FBI about it. You can't make this stuff up. Mr. Nauta's lawyer is a candidate for a federal judgeship having nothing to do with this. And that obviously wouldn't be appointed, but Donald Trump, he's no longer the president. And the feds were aware of that and sort of dangled it before the lawyer as they were trying to persuade Mr. Nauta to turn state's evidence against the president. So is that unethical? It remains to be seen. If it happens

the way the Trump people says it happened, yes, it's unethical? It remains to be seen. If it happens the way the Trump people says it happened, yes, it's unethical. It doesn't diminish the importance of the indictment, but it's the reason that you just heard Jack Smith mention the fact that in his view, the government behaved ethically. Here's Bill Barr again, because Shannon Bream says to him, is the former president a victim? Yes, he's been a victim in the past. Yes, his adversaries have obsessively pursued him with phony claims. And I've been at his side defending against them when he is a victim. But this is much different. He's not a victim here.

He was totally wrong that he had the right to have those documents. Those documents are among the most sensitive secrets that the country has. They have to be in the custody of the archivist. He had no right to maintain them and retain them. And he kept them in a way at Mar-a-Lago that anyone who really cares about national security, their stomach would churn at it. Wow. And finally, in terms of the videos we have for you, here's the former president himself on Friday evening after the indictment had been released. Very sadly, we're a nation in decline. And yet, they go after a popular president, a president that got more votes than any sitting president in the history

of our country, by far, and did much better the second time in the election than the first. And they go after him on a boxes hoax, just like the Russia, Russia, Russia hoax, and all of the others. This has been going on for seven years. They can't stop because it's election interference at the highest level. There's never been anything like what's happened. I'm an innocent man. I'm an innocent person. All right. I'll start going through the indictment itself, including reading for you aloud Donald Trump's words on tape right after this. You want to feel safe in your vehicle. And for you, that means easy, rapid access to your firearm. But safety also means your items don't fall into the wrong hands. You don't have to

choose between safety and convenience. The Headrest Safe keeps your firearm where you can access it and no one else can. Just order your Headrest Safe, install it yourself when it arrives, and enjoy peace of mind. It starts at theheadrestsafe.com. So as I indicated, welcome back, my friends. As I indicated, there are seven different crimes charged here, the most serious of which is willful retention of NDI. So that means that the government says that Donald Trump knew that he had NDI and he willfully kept it because he knew that he had a legal obligation to surrender it. The second charge is conspiracy to obstruct justice. That means the government says there was an agreement between Donald Trump and his co-defendant, Mr. Nauta, the former Navy guy, to frustrate the ability to send the FBI on a wild goose chase, if you will,

by interfering with their lawful access to the documents. The third is withholding a document that has been demanded. I know that sounds very similar to the first, and it is, but it's a separate charge. It's a separate crime on the way Congress wrote the statute. One is holding on to a document that you shouldn't have. This one is holding on to a document after the government has demanded it. The fourth crime alleged is concealing a document, hiding it, knowing that the feds are coming looking for it. The indictment itself recounts photographs and instances in which Mr. Nauta and his colleagues literally hid the documents in

Mrs. Trump's clothing closet, in a bathroom, in all kinds of places in Mar-a-Lago where they expected the FBI would not find it. And of course, they were wrong. The FBI found what it was looking for. The fifth charge is concealing a document in a federal criminal investigation, pretty much repetitive of the ones so far. The sixth is crafting a scheme, entering into a conspiracy to conceal documents. And the seventh one is very interesting. That's making false statements to the FBI or to a grand jury. Question, did Donald Trump actually speak to

the FBI or to the grand jury? Answer, no. Question, how did he make these false statements? Answer, through his lawyers. How do we know they were false? Well, this is very interesting. There are two principal witnesses against Donald Trump here. One is his own words, which I'll read to you in a moment. And the other is his former lawyer, Evan Corcoran. Well, how could a lawyer possibly testify against the client? What about the attorney-client privilege? Here's a one-minute lesson on the attorney-client privilege? Here's a one-minute lesson on the attorney-client privilege. You're a lawyer. You're sitting in your office. The client walks in and he says, I've just been accused of robbing a bank. What are my defenses? And you go

through the defenses. The money was yours. It wasn't you. You were a thousand miles away. Insanity defense. You have no memory. The bank hates me and they've been accusing me of this all along and none of it is true. That conversation between the lawyer and the client is absolutely privileged. Second example, client walks into your office and says, I plan to rob a bank. If I do, what defenses will be available to me? That conversation is not privileged. So if the client uses information from the lawyer to perpetrate a fraud or a crime, or if the client uses the lawyer to perpetrate a fraud or a crime, then the communication between the lawyer and the client is not privileged. And that's apparently what happened here. So the feds in a trial, a secret

trial, because it pertained to the grand jury, persuaded a federal judge in Washington, D.C. that the lawyer in this case, Evan Corcoran, was used by Donald Trump to lie to the federal government. Therefore, the attorney-client relationship was used for a fraud or crime. Therefore, there's no privilege. That's what the judge ruled. And that was appealed to an appellate court and the appellate court upheld the trial judge. Once the appellate court upheld the trial judge, then Mr. Corcoran had no choice but to testify. And in the indictment, there's a lot of information that comes directly from Mr. Corcoran. There's also a tape. Donald Trump here in New Jersey sat down in front of the tape recorder with an author and with some editors and with one of his staff and started recording in real time his recollection of his last year in office.

This was really done as a favor to Mark Meadows. His former chief of staff was writing a biography of his 10 months as Donald Trump's chief of staff. And Trump agreed to have this conversation and have it recorded. Of course, when the feds found out that the conversation was recorded, they subpoenaed the conversation and they got it. So here's the conversation. We're going to put it up on the screen so you can see me as I read it, see it as I read it aloud for you, Trump. Well, the senior military official, now we know who this senior military official is. This is chair of the Joint Chiefs of Staff, General Milley. Oh, let me see that. I'll show you an example. He said that I wanted to attack

country A. We know it was Iran. Isn't it amazing? I have a big pile of papers. This thing just came up. Look, this was him. They presented me this. This is off the record, but they presented me this. This was him. This was the Defense Department. The writer says, wow, Trump. We looked at some. This was him. This wasn't done by me. This was him. He keeps referring to General Milley. All sorts of stuff, pages long. Look, Stafford. Trump, wait a minute. Let's see here. Stafford, yeah. Trump, I just found. Isn't that amazing? This totally wins my case, we know, Stafford. Trump, except it's like hugely confidential. To the next page. Stafford, yeah, Trump's secret. This is secret information.

Look at this. You attack and, by the way, isn't that incredible? Yeah. I was just thinking because we were talking about it. And, you know, he said, talking about the general, he wanted to attack Iran. And what? Stafford, you did? Trump, this was done by my military, given to me. Ah, I think we can.

Probably right, Stafford? I don't know. We'll have to see. Yeah, we'll have to. Trump, declassify it. Stafford, yeah. Trump, see, as president, I could have declassified it, yeah. Now I can't, you know, but this stuff is still a secret. Staffer, yeah. Now we have a

problem. Trump, isn't that interesting? So that is a transcript of a conversation that the president had at Mar-a-Lago in which the government will say he admitted that he had national defense information, a plan to attack Iran, showed it to others. He didn't have a national security clearance at that point. They didn't have a national security clearance. Knew he They didn't have a national security clearance, knew he shouldn't have had it, knew it was secret, knew it wasn't declassified. What he didn't know is that it couldn't have been declassified. Didn't matter if there was no classification marking on it, because as I explained, it was NDI. Back to Evan Corcoran's notes in the indictment. He's quoting the president as saying, I don't want anybody looking. I don't want anybody looking through my boxes. I really don't. I don't even want you looking through my boxes, Trump. Well, what if we, what happens if we don't

respond at all or don't play ball with them? Talking about the Suprena from the grand jury, Trump. Wouldn't it be better if we just told them we don't have anything here? Well, look, isn't it just better if there aren't any documents? Then again, Mr. Corcoran's notes. He made a funny motion as though, well, okay, why don't you take them? He's saying this to Evan Corcoran, them as the documents, to your hotel room. And if there's anything really bad in there, like, you know, pluck it out. That was the motion he made, like, pluck it out.

There's the case against Donald Trump. The bulk of the indictment actually lists the 31 documents. The strange thing about this is Trump had 300 of these documents and he returned 269. If he had returned all of them, if he hadn't tried to hide them from the FBI, there'd be no case here. The government understood that some of these documents may have been taken by mistake. He wasn't indicted for those, just like Mike Pence hasn't been indicted for the documents he kept by mistake. And Joe Biden hasn't yet been indicted for the documents he kept by mistake. It's the documents that he kept, that he knew he didn't have, that he talked about, that he showed to others, that he tried to hide from the FBI that formed the essence of this indictment. Later on today at 10.30 Eastern, Ray McGovern, why did the United States, why was a United States Navy ship destroyed by the Israelis 60 years ago today, and why did LBJ lie about it?

More as we get it. Judge Napolitano for Judging Freedom. The headrest safe is quick and easy to use. Some may even call it a game changer. The headrest safe acts as a safety net, protecting your belongings while keeping them out of sight and out of bounds of others. Serving us security while also keeping your valuables in bounds. That's what the Headrest Safe provides for me. Game. Set. Match. Thank you.