Judging Freedom - Trump & the FBI Search Latest

Episode Date: August 23, 2022

The Trump Warrant Had No Legal Basis A former president’s rights under the Presidential Records Act trump the statutes the FBI cited to justify the Mar-a-Lago raid. https://www.wsj.com/articles/the-trum... #Trump #FBI #warrantSee 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 Tuesday, August 23rd, 2022. It's about 1135 in the morning here on the East Coast. My apologies for the delay. These things are unavoidable at times, and they were today. The New York Times is reporting, and this could only have come from an inside the DOJ source, that when President Trump left the White House, he took with him, I don't think he physically carried it, but he took with him in those days more than 300 files and documents marked classified, and that about 150 had been returned voluntarily when the National Archives asked for them, and the remainder were either returned pursuant to the subpoena or seized by the FBI. But the most highly classified, remember there's classified and there's classified, the most highly classified, the ones marked top secret SCI, were seized by the FBI.

If true, this number would be extraordinary, and it's a head-scratcher as to what President Trump was doing with that much classified material. I myself am an opponent of all this classification, and I know from declassified documents that I have seen, which you can see, what my reaction was, what the heck was this classified for? Well, somebody didn't want to deal with the press or didn't want to deal with the Congress. Usually documents in the executive branch are classified because somebody, the Secretary of State, the Secretary of Defense, the head of the CIA, or people below them at various levels don't want to deal with the Congress on these things. They don't want to deal with the Congress on these things.

They don't have to answer the questions of the press. But when they're subpoenaed by the Congress and sworn to tell the truth, they have to give some kind of an answer. And that's often the reason for the gross over-classification of documents. Even Mrs. Clinton acknowledged in her time as Secretary of State that the State Department was guilty of over-classification. So there's five categories of classified. There's confidential, there's secret, there's top secret, and then there's three or four categories of top secret. Confidential means there's no reason to put this in the public right now. Secret means if it is revealed, it is likely to harm American national security. Top secret means if it is revealed, it will certainly harm national security. Top secret SCI means top secret. If revealed, it will harm national security.

So top secret, it can only be viewed in a government facility and only kept in a government facility where surveillance can't penetrate, where Wi-Fi doesn't work, and where all sorts of mobile devices are not permitted. If the FBI is being truthful, and Trump's lawyers signed a statement acknowledging this is what they took, she signed this statement as the FBI left Trump's home two Mondays ago, they found 11 files marked top secret SCI, the highest category of secret there is. So this does not look good for the president, nor does his boast. I declassified all of it look good. Well, why doesn't that look good? Well, first of all,

that's denying something before you've been accused. Criminal Defense 101, don't deny until after you've been accused. Don't even deny until after you know what the government has on you. Because by saying, I declassified all of it, what is he doing? He's admitting he had it. So he loses his argument that the FBI planted it or that he returned everything that the subpoena commanded. This is a difficult situation that the former president is in. One of his lawyers wrote a letter to the DOJ after negotiating with the DOJ after negotiating with the National Archives after complying with a grand jury

subpoena saying you now have everything that the former president formerly had subject to and commanded by the subpoena. Well, we know that's not true. So if the lawyer made a knowing misrepresentation to the federal government, that's a crime. That lawyer will become a defendant and can no longer represent the president. If the lawyer stated what she or he thought was true but relied on information intentionally given to her that was erroneous by President Trump or somebody around him, then that lawyer made an unknowing material misrepresentation to the government and that lawyer will become a witness and cannot represent the president. And because this letter involved an act of deception,

the attorney-client privilege does not apply. So either way, the lawyer can't represent Trump, either will be looking for legal counsel, him or herself, or the lawyer can't represent Trump and will be a witness who can be compelled to testify against Trump. It does not look good at this point. You heard me say earlier, the idea of a special master would have been brilliant had it been raised on the day of the raid. But two weeks after the raid is too little too late. The government has already surveilled everything in there.

The government already knows what it has taken from Trump, whether it's personal, whether it's political, whether it's attorney client, or whether it's executive privilege, or whether it's real evidence of a crime. There's been some talk this morning about executive privilege and some talk about the Presidential Records Act allowing Trump to take whatever he wants. All that talk is nonsense, even though some of it comes from lawyers that I respect. There is no executive privilege for the president, for the former president. We know that from the Supreme Court's ruling in 1978 in United States v. Nixon, a 7-2 opinion, when President Nixon said, give me the tapes, they're mine. And the Supreme Court said, no, under the Presidential Records Act, they belong to the federal government. In terms of whether the Presidential Records Act, which basically says the documents belong to the federal government and not to the president,

but the president and the National Archives should work things out since some things are harmless to national security and presidents should be allowed to keep them. That in no way changes the gravity of a president removing from the White House items marked top secret. I say this as somebody who believes fervently that a piece of paper sitting in Donald Trump's locked safe is harmless. I say this as somebody who believes that crime is harm proscribed by the statutes or by nature. I say this as somebody who believes that the only harm here was to the egos of the people in the deep state. But Donald Trump used to head the executive branch of the federal government, and the deep state went after him with all of its might in all four years that he was the head of the federal government. He knows how they operate and he knows what power they had. He taunted the alligator before crossing the stream,

so to speak, when he took top secret SCI materials with him to his personal residence in Florida. And more as we get it, I think he's going to pay a price. I've said already, I think he's going to be indicted. It's not just, and it'll be up to a jury to decide if he committed a felony. But I think the feds have decided that's the direction in which they're going to go. Judge Napolitano for judging freedom.