Judging Freedom - Trump Interview Break Down _Hunter Biden Plea Deal _FBI Spying Blunder

Episode Date: June 20, 2023

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Thank you. Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, June 20th, 2023. It's 1.30 in the afternoon here on the East Coast of the United States. Here are your hot topics for today. And they range from Hunter Biden's guilty plea to the FBI's reluctance to investigate Donald Trump for his alleged criminal behavior on January 6th to the absolutely disastrous interview. We're going to show it to you or parts of it that Donald Trump gave to my friend and former colleague, Brett Baer last night. This is why his lawyers quit on him, not because of this interview, but because of these interviews that he keeps giving. All of this

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Keep them safe with the Headrest Safe. Use promo code JUDGENAP and enjoy $50 off for a limited time at theheadrestsafe.com. So Hunter Biden and his lawyers reached an agreement with the federal prosecutors in Delaware to terminate all the criminal investigations of him, which would result in a guilty plea of two misdemeanors of failure to pay your taxes on time and a pretrial diversionary program of lying on an application to obtain a gun. Many will say, of course, and justifiably so, that this is a slap on the wrist. It's a very light penalty for misbehavior of this magnitude. The tax bill

is $1.4 million. That's not the income on which the tax is to be paid. That's the tax bill, $1.4 million. So obviously he still has to pay that, but he only has to undergo probation for about two years because he pleaded guilty to the misdemeanor version of it. In terms of the gun, he was charged with lying under oath. So when you go to buy a weapon in the United States, you have to fulfill state requirements. Some states have no requirements. Some states mirror the federal requirements. Some states like New Jersey have more requirements than the feds. And then you still have to satisfy the federal requirements. Some states like New Jersey have more requirements than the feds.

And then you still have to satisfy the federal requirement. One of the federal requirements is that you not be a habitual drug user. When he was asked this question on his gun application, he said, no, he is not. Then he wrote an autobiography in which he said he was. So the feds felt obliged to prosecute him for this. On this one, it's not a guilty plea. On this one, it's called pretrial intervention, meaning before he's tried and before he's even indicted, he can enter a probationary program. And if he fulfills the requirements of the probationary program, which will mean

absolute total abstinence from alcohol or any controlled dangerous substance, or even marijuana in states where it's legal, if he meets the requirements of that program, then the gun charges will be dropped. Now, who is the prosecutor? Well, the prosecutor was appointed by, you're ready for this, Donald Trump. Right. This is the same federal prosecutor that Trump appointed when he was in the White House to be the chief federal prosecutor for the state of Delaware. Joe Biden, now it turns out brilliantly wisely, decided to leave this prosecutor in place rather than putting his own person there. Usually, when a president of the opposite party comes in, all 70 U.S. attorneys resign. Sometimes you have to fire them. They won't resign. In Biden's case, he kept some on, and this is one of the Trump prosecutors that he kept on. Did Merrick Garland, the Attorney General, have to approve this deal for Hunter Biden? Answer, no. This does not rise to the level that requires the

U.S. Attorney in Wilmington, Delaware, to go to Washington, D.C. for permission. This is not like Jack Smith asking a grand jury to indict Donald Trump. This is a lower level prosecution for which the U.S. attorney has total and absolute authority to resolve it however he wants. Now, what becomes of it? Well, they'll go before a judge. If they haven't done so already today, it'll be very soon. Now, here's interesting because judges take two attitudes on this. One is, well, I'm not a potted plant. I'm the judge in this case. I'm not going to approve this just because both sides want it. I'm going to look at it. If I think the punishment is too light, I'm going to reject the guilty plea.

If I think the government is demanding too much, I'm going to reject the guilty plea. And when I reject the guilty plea, I'm going to say, file your indictment. We'll start the trial in six months. That's one attitude. The other judicial attitude is, I'm just the judge. These people come into my courtroom with an agreement. Good. I'll accept the agreement. The case is over. If it satisfies the government and satisfies the defendant, why should I get involved? The latter is the view of most judges and probably will be

the view of the federal judge in this case. Now, I don't want to prejudge the judge. I don't know who the judge is. I don't know her or his record on guilty pleas, but most judges, federal and state, are reluctant to disturb a guilty plea that has been carefully crafted by the government and by defense counsel. We'll know either in a few hours or at the most in a few days. Once the terms of the guilty plea are announced, the government wants to put it on the record right away because the defendant accepts the guilty plea under oath. And once he does that, that's it. He can't really change his

mind under extreme circumstances not necessary to address here. Since his indictment, Donald Trump has expressed his views of the indictment, of the Department of Justice, of the FBI, of the special counsel, Jack Smith, in no uncertain terms. I would have advised him against doing all that. Of course, it's very difficult to restrain him, which is probably why his two principal lawyers in the Mar-a-Lago case resigned the day the indictment came down. And as we speak, even though there were two lawyers next to him, two very fine lawyers, one from Miami, one from New York during the arraignment last week in federal court in Miami, neither is the counsel of record in this case. So as we speak at 1 45 in the afternoon on Tuesday, January 20th, 2023, Donald Trump does not have a legal team in place to defend him in Mar-a-Lago, even though yesterday the judge in this case fixed the trial date, the right to a speedy trial, where the rule in

that part of the country is 70, seven zero days between the day of the indictment and the day of the trial. What is August 24th? 70 days after the day the indictment was released. Okay, all of that is background. The former president gave what I think is a disastrous and incoherent interview with my friend and former colleague, Brett Baer, the chief political reporter and 6 p.m. anchor for Fox News. It went on for an hour. We have three clips. They're each about a minute long. There's the tiniest little break in between each one. You may see my smiling face in between each one. We're going to play all three for you. You'll get a flavor of Brett's questions, his frustration at trying to get the former president to answer. And I think you'll get a flavor of the former president's head on this

for better or for worse. Take a listen. According to the indictment, you were here at Bedminster on July 21st, 2021, after you're no longer president. And you were recorded saying that you had a document detailing a plan of attack on another country that was prepared by the U.S. military for you when you were president. The Iran attack plan. You remember that? Ready? It wasn't a document. I had lots of paper. I had copies of newspaper articles. I had copies of magazines. This is specifically a quote. You're quoting on the recording saying the document was secret, adding that you could have declassified it while you were president,

but quote, now I can't. You know this is still secret, adding that you could have declassified it while you were president, but quote, now I can't. You know, this is still secret, highly confidential. And the indictment cites the recording and the testimony from people in the room saying you showed it to people there that day. So you say on this, on tape, that you can't declassify it, so why have it? When I said that I couldn't declassify it now, that's because I wasn't president. I never made any bones about that. When I'm not president, I can't declassify it. And that's what you said. You didn't declassify it. I said, no, no.

I said I couldn't declassify it. But that wasn't a document. Brett, there was no document. That was a massive amount of papers and everything else talking about Iran and other things. Why do you want to hold on to those documents after you're president? I don't say I do. You just didn't know it was in the box? We were discussing with NARA, giving them back.

All of a sudden we've got raided, which is a violation of my, you know, Fourth Amendment rights. They raided my home and they came and they took things. We were discussing this with NARA. Look at Obama. Look at Clinton. You know, Clinton took documents. We were discussing this with Nara. Look at Obama, look at Clinton. You know, Clinton took documents. Clinton took tapes in his socks. Interviews with his story. The Clinton socks case.

I do know it well. And it basically said the president has every right to keep whatever he wants. And that includes me. I have every right to have those boxes. This is purely a Presidential Records Act. This is not a criminal thing. In fact, the New York Times, of all, had a story just the other day that the only way NARA could ever get this stuff, this back, would be please, please, please, could we have it back? And they asked for it. Because they have no...

They did ask for it. No. They said, can you give the because they have no we were talking no and they said can you give the documents back and we were talking and then they said they went to doj to subpoena you to get which they've never done before right and you know why not just hand them over them because i had boxes i want to go through the boxes and get all my personal things out i don't want to hand that over to nary yet oh sorry to say, because as many of you know, Donald Trump and I have been friends for nearly 40 years, and we spoke many, many times during his White House years.

But he is terribly confused and terribly ill-advised, because I don't know who's advising him, as I just explained to you, to give an interview like this. He comes across as incoherent, as willfully evading the question, and as having a fundamental misunderstanding of the charges against him. The Presidential Records Act allows the former president to keep documents that the former president has created, which is why Bill Clinton was allowed to keep tapes that he made of his own words and his own behavior in the White House. That has nothing to do with NDI. NDI is National Defense Information, by definition created by the CIA, the State Department, the Department of Defense, some other entity. The president and the former president have no authority whatsoever to retain those documents. I'm sorry to say to my friend, but he is mistaken when he says those are his documents.

And as for its rights being violated, the feds got a search warrant. They followed the Fourth Amendment. They demonstrated under oath that it was more likely than not that evidence of criminal behavior would be found in the place to be searched and the things to be seized. And they've pretty much proven that already. I don't know where any of this is going to go, but the more Donald Trump says, the more it's going to harm him. The feds will capture every word he says and analyze the look on his face

and the movement of his hands and the twitches under his eyes and they'll have experts analyze it. They'll know what he's thinking and when he's lying and when he's telling the truth. They'll know when he's convinced himself of a lie. And they'll be totally prepared to cross-examine him if he ever chooses to take the stand in his case if there is a trial.

Obviously, there wouldn't be a trial if it's some kind of a guilty plea. So where this is going to go, I don't know. But Mr. President, stop giving these interviews. I know you like to be the center of attention. I know you want to persuade your base that you believe you're not guilty. The base already knows that. But every time you give an interview to anyone, whether it's Brett Baier or whether it's the young woman from CNN. You are hurting yourself, hurting your case, and separating yourself from your lawyers. When we come back, why did the FBI resist opening a probe for January 6th against Donald Trump himself? And how did the FBI spy on, you ready for this, 278,000 Americans by mistake right after this?

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each other. A conspiracy is an agreement between two or more persons to accomplish an unlawful end, and it only requires one of the conspirators to engage in at least one act in furtherance of the agreement in order for everybody in the agreement to be guilty. Clarence Darrow famously put it this way. Now, the numbers don't make sense because he said this 150 years ago. If a boy steals a dime, he's not going to go to prison. A small fine will be sufficient. But if two boys conspire to steal a dime and then don't steal it, they're candidates for prison. He was right then. He's right today. By the way, after he says it, and what kind of a country does that

to its own people? And then he whispers very slowly so the jury has the strain to hear him. Hours. Some of you may recall that I'm about to do an off-Broadway show in the fall called Clarence Darrow Tonight. So a lot of these lines that I'm memorizing for the show stick in my brain. But back to the FBI and January 6th, the argument will be that Trump participated in a conspiracy by his words, by riling up the crowd, and then by not doing anything to stop the crowd. I happen to think you can't be prosecuted for what you say, even if you do encourage others to break the law, that the First Amendment protects you. We'll see where it goes. However, it wasn't until February of 22 that the FBI agreed to get involved in this case. Now, there's two ways to look at it. One is, well, the FBI can't tell the DOJ what to do. The FBI works for the DOJ. And if the FBI doesn't

want to get involved, we'll find other FBI agents. There's 7,800 of them. Who the heck are they to tell the DOJ they don't want to investigate? Just like some FBI agents did not want to participate in the execution of a search warrant at former President Trump's house. Okay, I get it. We needed 50 people. You got 7,800. These three don't want to do it. Go find three more. It's either that case, moral qualms about investigating Trump for a behavior that is arguably protected by the Constitution, or it was a facade put on by the FBI and the DOJ. Remember, when Merrick Garland became the Attorney General, the opinion of the DOJ was very, very low. Bill Barr had just left office. The DOJ had aggressively pursued Donald Trump via the Bob Mueller investigation. Donald Trump had continued to blast the DOJ and the FBI, famously fired Jim Comey. One of the things that Attorney General

Merrick Garland wanted to do was to improve the PR of the Department of Justice and the FBI famously fired Jim Comey. One of the things that Attorney General Merrick Garland wanted to do was to improve the PR of the Department of Justice and the FBI. So they all may very well have slow walked their involvement in this so as not to appear too over eager to investigate the former president. I suggest to you it was that rather than ethical qualms. But like most truthful things, there's a little bit on both sides. I'm sure, listen, I know a lot of FBI agents and in the arms of many of them, I would repose my life, the lives of my loved ones and everything I own. Not all of them, but many of them. And I can see where many of them would have had ethical qualms. I can also see where this was part of a scheme, if you will, to enhance the reputation of the FBI and the DOJ. Paul Abate, A-B-B-A b a t e uh the number two person you probably never heard of him i never had

the number two person in the fbi uh told senator josh hawley republican of missouri uh last week two weeks ago now excuse me uh that the fbi unintentionally spied on 278 000 americans man what a head shaker that this could actually happen. Senator Hawley, of course, was outraged, accused Director Abate of lying. This will probably go nowhere, except here's how it happened. Section 702 of the Foreign Intelligence Surveillance Act expires every five years. Its next expiration is this Christmas, six months from now. The FBI, the CIA, the DOJ, the NSA, all those people that spy on us are lobbying heavily to have this section reinstated or extended.

What does this section of the law authorize? It authorizes federal agents to spy on foreign persons physically or digitally present in the United States without warrants. And it authorizes them to spy on those with whom these foreign folks speak in America, and those with whom the Americans speak, and those with whom the Americans speak and those with whom the Americans have spoken to whom they speak out to the sixth degree. Short answer, the database of Americans who have spoken to foreign persons out to the sixth degree, meaning most of these conversations are American to American is huge. It's about three and a half million people.

The FBI is not supposed to access that database without a search warrant. In 2022, they accessed it 278,000 times before somebody said to them, hey, you're not supposed to do this. That's what Director Abate was confessing to. Why is he confessing to it now? Why does he say, well, it was only 278,000 times. There's three and a half million names in there. And there's, excuse me, 333 million Americans. Be grateful it happened so few times. Why?

Because they want this Section 702 extended. It should not be extended. There should be no warrantless spying in the United States. The Fourth Amendment protects people, good people, bad people, Americans, non-Americans. There's no distinction in there. The statute is patently and profoundly unconstitutional jim jordan who's the chair of the house judiciary committee understands that and he may single-handedly block this thing from being reenacted and i hope he does in the meantime the fbi agents who did this i'm sorry they should be punished or prosecuted whether it it was inadvertent or not, let a jury decide. Questions from our TikTok friends. Why doesn't the indictment of Trump mention the Presidential Records Act?

As I said earlier, the Presidential Records Act has nothing to do with NDI, National Defense Information. The Presidential Records Act lets American presidents, after they're out of office, keep documents that they created, not documents that were given to them. Talking about the attorney-client privilege. How about the scenario where a client tells the attorney about the crime but does not ask for assistance? Okay. Client, you're the lawyer. Client comes into your office and says, I'm about to be accused of robbing a bank. What are my defenses? The conversation is privileged.

Oh, client comes into your office and says, I'm about to rob a bank. And if I do so, what will my defenses be? The client is not privileged because the client plans to use legal advice to further a crime. And there's an exception called the crime fraud exception and the attorney-client privilege for that. Now, the questioner asks a good question. This rarely, how do I say never, but rarely happens. The client comes into your office and says, I just robbed a bank. I did it. What do we do?

That's privileged. That is the quintessential conversation of the attorney-client privilege. Next question, Judge Aileen Cannon, the trial judge in the Trump case. Can or might she be pressured into recusal? Are you confident in her capabilities in this case? I am not confident in her capabilities. She's only tried three criminal cases, and they were low-level, easy two- or three-day trials. She has never handled a matter of this magnitude. She also was severely reprimanded. I shouldn't say reprimanded. Forgive me. Not reprimanded. Reversed by the 11th Circuit Court of Appeals. The type of reversal one rarely

sees for all of her rulings when the search warrant was initially served on Trump's house. Remember, she's the one that installed the special master to review all the documents. She wouldn't even let the DOJ look at documents that it had legally seized until the 11th Circuit stopped her. I don't think she's the right judge. We'll see what happens. However, recusal goes to the judge. So you have to ask the judge to recuse herself. She may surprise everybody and say yes, and then whoever's up next, it's random, will get the case. If she says no, then you either accept that or if you're the government, you ask for recusal, you go to the 11th Circuit. Navy versus Eagan, then you either accept that or if you're the government, you ask for accusal, you go to the 11th Circuit. Navy versus Eagan, is there any relevance to Trump's case? No.

Navy versus Eagan is a Supreme Court case that says the president can take away the classified status of somebody who's in the Navy or who works for the federal government. And there's no appeal from the president's decision to do that. Next question, what makes Trump's case different than possible case against Biden? Is it that he willfully knew and said no? Well, as Bill Barr said, he jerked the FBI around. He sent them on a wild goose chase. He conspired with his lawyers to hide documents. He even asked one of the lawyers to destroy documents. If President Trump had returned all the documents the government sought, we wouldn't be having this conversation. Joe Biden kept documents, returned all of them. Mike Pence kept documents, returned all of them. So these are apples and oranges.

All right, my friends, enough for one day. Coming up later this week, Colonel McGregor, you know who that is. Scott Ritter, you know who that is. And more of these solo hot topics as and when they develop. As always, more as we get it. If you like what you see, I know you do, like, subscribe, tell a friend. We're up to about 166,000 YouTube subscribers. Our goal is 175,000 by Independence Day. Judge Napolitano for judging freedom.

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