Judging Freedom - Trump World - the Latest

Episode Date: August 10, 2022

Donald Trump to Be Deposed Wednesday by New York Attorney General https://www.wsj.com/articles/donald-t... #trump #fbi #raidSee 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 for Judging Freedom. Today is Wednesday, August 10, 2022. It's a little after 11 o'clock in the morning on the east coast of the United States. And of course, the story of the hour, the story of the day, the story of the week, maybe the story of the year, I don't know, is the FBI execution of a search warrant at the home of former President Donald Trump in Palm Beach, Florida. Interestingly, today, President Trump was scheduled to be deposed. That's an examination under oath before trial with just the lawyers there in a lawsuit against the Trump Organization brought by the Attorney General of New York. Now, the Trump president, former president and his children, each of whom were scheduled to be deposed, went back and forth and back and forth a couple of times in which they claimed that he couldn't be deposed. Went back and forth and back and forth a couple of times, in which they claimed that he couldn't be deposed, and went all the way to an appeals court in New York, which ruled that he could. He then agreed to be deposed. They sat down for the deposition. He refused to answer anything. I think he's in hot water because he already agreed to answer.

We'll see where the courts go. Generally, you have the right to remain silent, but if you waive that right, if you waive it by speaking about the subject matter under oath or not under oath, or by agreeing to waive it, then you've given up the right and you can't reclaim it. That's the law. You can't selectively invoke the Fifth Amendment. You have to invoke it for all matters pertaining to the subject of the deposition or for none. Because he has spoken publicly about these matters and because a court ordered him to testify and because he agreed to testify, I don't think he still has a Fifth Amendment right. I think he's waived it. And I say this as somebody who always defends individual rights. We'll see where it goes.

Speaking of individual rights, of course, his property rights were violated when 50 FBI agents, some carrying high-powered weapons, weapons of the Democratic House of Representatives called weapons of war, entered his home at 6 o'clock yesterday morning. We know more about it than we did the last time I discussed this. The head of the FBI team calls the head of the Secret Service team protecting him, even though he's not physically in the house at the time, and says, we have a search warrant. I'm going to fax it over. Secret Service says, okay, it's a search warrant. We'll open the doors and we'll get out of your way, but we're not going to help you do the search. Search went on for about 12 hours.

They even went into Mrs. Trump's closet. We understand they're looking for national security-related documents, documents of the nature of which Mrs. Clinton kept on her personal server in her home. It's the same statute that he allegedly violated, that she allegedly violated. Of course, she wasn't subject to the search because the documents were digital and she destroyed the server. So the feds didn't have the documents and couldn't get them. He's subject to the search because he admitted that he took these documents when he left the White House and he declined to return them. He had been involved in negotiating his lawyers with Justice Department lawyers about which documents were his personal property and which were property of the federal government. So there's two statutes here. One is the Presidential Records and Recording Act,

which says basically everything the president touches in the White House belongs to the federal government. The other is the espionage statutes. The espionage statutes, which basically say the failure to keep national security secrets in their proper location is a crime. That's what Mrs. Clinton could have been charged with and wasn't. Donald Trump can be charged with either of those statutes. The Presidential Records and Recording Act, if convicted, pardon me, would keep him from ever running for federal office.

The Espionage Act, if convicted, would cause him to be incarcerated. The Espionage Act, again, the removal of top secret materials to a non-secure place. That is the only federal statute that does not require the government to prove intent, meaning if you negligently remove top security materials to a non-secure, non-federal place, that's all the government has to prove is negligence. So I don't know where they're going with any of this. I don't know what these documents are. None of us does. I know if I were the judge, I would have made sure that every I was dotted and T was crossed, that I had interrogated and cross-examined every FBI agent that appeared before me before I signed the search warrant.

I don't know how thorough this judge was. Presumably he was thorough. Presumably he's not stupid. Presumably he's a federal judge and he knows that the whole world is going to scrutinize the affidavits that the FBI submitted to this judge, any testimony that they gave him under oath, and any representations made to him by federal prosecutors. All this is done in secret. Secret. That's the way search warrants work. They're all done in secret. I myself signed many search warrants, and I declined to sign many search warrants. State police in New Jersey once came to me at three in the morning wanting a search warrant. I welcomed them into

my home. They showed me what they had. They made statements under oath. There's no stenographer there. I wrote down what they told me. I signed the search warrant. I then found out they didn't tell me everything, and I then rescinded the search warrant. Judges must do the right thing, not what they think the government wants. The government must prepare what's called a return. A return is a list of every document or item seized. They will send that back to the judge and eventually that return will become a public document and we'll know exactly what they took from the former president's home. If we're talking about a cocktail napkin on which he played TikTok with Shinzo Abe, that's obviously something he can keep without violating the law,

even though technically it belongs to the federal government. On the other hand, if we're talking about a list of those who financed 9-11, that's obviously something he can't keep. He had a top security clearance. He lost that top security clearance at noon on January 20th, 2021, when Joe Biden became president. Joe Biden didn't take that security clearance away from him. The law did. Many ex-presidents have had the security clearance re-given to them by their successors. Joe Biden chose not to give it back to Trump, but it was the law, the statute, that took it away from Trump. There are six categories of top secret security clearance. The president has the highest clearance. He can see anything and he can declassify anything.

He can't declassify it by snapping his fingers. He's got to go through procedures. So whatever he took, when he took it, he was the president, perfectly lawful, perfectly lawful to bring it on Air Force One. At some point while he's on Air Force One, he's no longer the president. At that point, it is unlawful for him to retain this. But again, if it's a tchotchke, if it's a memento, if it's a menu of a dinner he attended with Queen Elizabeth, the government may want the document for historic purposes, but they're not going to prosecute him for it. But if it is top secret national security,

to which he's no longer entitled any more than you or I, they probably will prosecute him for it. So we'll see where this goes. What I want to see is the affidavits submitted by the FBI to the federal judge, any testimony, the transcript of any testimony given by the FBI to the federal judge, any representations made in writing or orally by the federal prosecutors to the federal judge, and the warrant signed by the federal judge, as well as the return, the list of items they took. When I see that, I'll give you my opinion of it, having done this process at the New Jersey state level many times.

While President Trump's property was being searched by 50 FBI agents. Scott Perry, a Republican congressman from Pennsylvania, was driving his car on the highway with his wife and one of his children. Two SUVs sort of pushed him over to the side, cutting him off and preventing him from leaving. Gets out, said, what the hell is this? There were three FBI agents that said, Congressman Perry, we have a search warrant for your cell phone. Give us your cell phone. Right there in a public street in front of his wife and child. Same thing happened to John Eastman. You may know that name. John Eastman is the constitutional law scholar, former law school dean, former lawyer to former President Trump. They had a search warrant for his cell phone. They stopped him as he was walking out

of a restaurant. This is a new level of Gestapo-like tactics when the FBI stops you on a public street, particularly when you're represented by a lawyer, as John Eastman was, and particularly when you're a member of Congress and you have what's called the speech and debate clause to protect you. Whatever is in Congressman Perry's cell phone, if it pertains to his work as a member of Congress, is absolutely protected from scrutiny by the FBI, but they have it. So I don't know where these new Gestapo-like tactics come from. From my experience, it is unfair to blame the FBI directly because every FBI agent works for at least one federal prosecutor. The federal prosecutors direct them where to go and what to

do. Is this a new breed of federal prosecutor that's having FBI agents hand people warrants in public streets and take property off their persons? That's Gestapo-like. So I don't know where any of this is going to end. I need to see the documents. I would think if this is, again, the cocktail napkin at which he played tic-tac-toe with the late premier of Japan, Merrick Garland, the attorney security, say it reveals the name and methods of undercover CIA agents or the murderers who financed 9-11, then Donald Trump will be a defendant in a criminal case. Judge Napolitano for judging freedom.