Scott Horton Show - Just the Interviews - 6/15/23 Judge Andrew Napolitano on the Indictment of Donald Trump

Episode Date: June 17, 2023

Judge Andrew Napolitano joined Scott to discuss the DOJ’s case against Donald Trump. Napolitano believes it is an incredibly strong case and that the former President—and current Republican front-runner—is likely facing prison time. He and Scott run through what was revealed in the indictment, how it fits into what we already knew and why a lot of the common counterarguments from Trump fans likely won’t hold up in court.   Discussed on the show: “Judge Andrew Napolitano: The case against Donald Trump” (Orange County Register) Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the of the daily show Judging Freedom. Judge Napolitano has written seven books on the US Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. This episode of the Scott Horton Show is sponsored by: Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott. Get Scott’s interviews before anyone else! Subscribe to the Substack. Shop Libertarian Institute merch or donate to the show through Patreon, PayPal or Bitcoin: 1DZBZNJrxUhQhEzgDh7k8JXHXRjY Learn more about your ad choices. Visit megaphone.fm/adchoices

All right, y'all, welcome to the Scott Horton Show. I'm the director of the Libertarian Institute, editorial director of anti-war.com, author of the book, Fool's Aaron, Time to End the War in Afghanistan, and The Brand New, Enough Already, Time to End the War on Terrorism. And I've recorded more than 5,500 interviews since 2004. almost all on foreign policy and all available for you at scothorton dot for you can sign up the podcast feed there and the full interview archive is also available at youtube.com slash scott horton's show now it's you guys introducing judge napolitano in a role reversal he interviews me all the time i had returned favor once in a while and i got some questions so welcome to the show judge how are you uh it's always a pleasure uh to work with you no matter who's doing the question we're the answering oh good uh well i'm always very happy to talk

to you too and i'm very interested in well obviously everyone is very interested in the case against donald trump here for retaining classified documents sounds like maybe uh trumped-up political type of a charge because of who he is and his station in the world and as a declared candidate and all of that, but I see you have a piece here saying that the Justice Department has a pretty clear-cut case against him, you think, huh? You know, I was surprised that the strength of the case, even Professor Dershowitz, who was one of Trump's lawyers in the first impeachment, had a piece in the Wall Street Journal this week expressing the same surprise.

You know the old phrase, when you strike at the king, you must kill him. So if you're going to go after a former president, you better have a lot of very strong evidence. They put far more in the indictment than they are required to, and they have a lot of very strong evidence, and nearly all of it is out of the mouth of Trump himself or people that work for him. These are not anti-Trump, never Trump, malcontents, or Democrats that fear him. that that may have been the motivation for initially investigating, but this is a very, very serious case that could easily have been resolved civilly, but Trump chose not to do so because of an obstinate and not well grounded at all in the law insistence that these documents are his personal property, which under the law, unfortunately for him, they're not.

all right so in the article right away you make a distinction between any old classified documents and these specific ones that are national defense information including reportedly do we know this or at least the government is claiming including plans for a war with iran so he doesn't um well he he did apparently say iran on this tape but on the version uh of the transcript of the tape including in the indictment statement, they have blocked the name of the country and the author of the plans. We know from somebody who was in the room that the author of the plans was none other than General Mark Millie, the chair of the Joint Chiefs of Staff, who authored it reluctantly, wasn't advocating a war with Iran, but Trump asked for plans, and we know from somebody in the room that the country is Iran. So how did this come about? Trump was actually doing a very generous thing, which I never heard of any president doing.

He was sitting for an oral history where you just talk out loud, Q&A, not for himself, but for his former chief of staff, Mark Meadows, who's writing a biography of Mark's 10 months as Trump's last chief of staff. So Meadows, ghost writer, two people from the publisher, not Meadows, President Trump, two assistants of President Trump are all sitting at a conference table at his home and golf club in Bedminster, New Jersey, having a freewheeling Q&A about his last 10 months in office, which was tumultuous, as you know. And he pulls out a piece of paper and says, oh, by the way, here are plans that General Millie gave me to invade Iran. They're still secret. I could have declassified them. That's wrong under the law, which I'll explain in a minute. But he said, I could have declassified them, but I didn't. They're still secret. And then one of the aide says, I guess we have a problem. And he said, isn't that interesting?

And then they move on to something else. Now, how do I know this? This was excerpted in the indictment. So it shows awareness, knowledge of the possession of the documents. This is an element that government has to prove. It can now prove it out of the mouth. But, Your Honor, my client is not a lawyer. He's a real estate tycoon, and he doesn't know what he's talking about.

Of course, he declassified it once he ordered his subordinates to move it down to Florida. when he was still the president and so just because he said that all that proves is that he's ignorant of the law he's the president of the united states he can declassify whatever he wants well he can't declassify uh ndi which is national defense information now the government charged him with keeping uh 37 uh documents 32 were ndi five were uh classified and never declassified by him well now so the government very sure truly avoided the issue of, did he declassify them or did he not declassify them? Could he declassify them or could he not?

NDI is always NDI and it can't be declassified. So I'll tell you what NDI is. It's national defense information. That's what the letter stand for. And it typically explains the strengths and weaknesses of the United States military. Now, here are two people talking and don't even believe we should have a standing military, but we do. So it explains the strengths and weaknesses of the U.S. military, the strengths and weaknesses of a foreign military, and the sources of the conclusions of those strengths and weaknesses. That is always and everywhere unlawful to possess outside of a secure federal facility, no matter who you are.

If he had taken these documents to Mar-Lago, while he was still the president, it would have been unlawful to possess because Mar-Lago was not a secure federal facility. even when he was president it wasn't we know that they arrested the chinese spy there okay but so i hate to quote al gore here but isn't it right that there's no controlling legal authority higher than the president on whether to decide whether a piece of paper secret or not in other words no that no that is not true uh it is secret if it contains national defense secrets he can't make that uh unsecret and i think he realized that uh because you know this that But wait, so, Judge, you're telling me it's in the statute that national defense information can never be declassified even by the president of the United States of America. No, it is not in the statute.

The statute doesn't refer to classification because national defense information is not subject to presidential whim. It would be like him declassifying your bank account. And you ask me if that's in the statute. No, it's not in the statute. He just doesn't have the authority to do it. Hmm. Okay. So, you know, when the FBI executed the search warrant on his house last August, he was in New Jersey.

They waited for him to be out of the way. And he learned what was happening because there are 50 security cameras, his own, not government surveillance, his own security cameras. Mar-a-Lago is 50,000 square feet. It's enormous. So there are 50 security cameras in there. saw what was going on. He also had a phone call from one of his own personal security people, and they told him what was going on. And he immediately went on Fox and said, oh, don't worry about it. I had to classify that stuff they're looking for. That violates criminal law 101. Never deny

before you've been accused. What did that do? That is an acknowledgement that he had the documents. So again, something the government will prove out of his own mouth that these documents, in fact, were there. what they were, but they sort of tricked him because he believed they were subject to declassification, but all but five of them were not subject to declassification. Now, if we back up a little bit, he did surrender over 300 classified documents. If he had surrendered the remaining five classified and 32 NDI, there'd be no conversation here. And he had lawyers who encouraged him to do that, but he refused to do so. Instead, he had his co-defendant, Waltine Nauda, a former Navy butler slash valet at the White

House, bonded with the president, and who worked with him after he left office, physically moved documents and hide them. So there are tapes of Mr. Nauta, taking documents out of the storage area. Next day, the feds go in there. The next day, he puts the documents back in. When he was subpoenaed before the grand jury, they asked me if he did that. And he said, no, forgetting that he was on tape. That's why he was indicted for lying to a grand jury.

I guess he forgot that he was under, that he was on tape. And then there are other text messages showing that it was Trump personally who asked him to move this stuff. Then the most troublesome for Trump, Scott, is not what he said and not what he said to Walt Nauta, but it's what his lawyers said. Now, what about the attorney-client privilege? How can a lawyer testify against the client? So as you're saw in my column, here is attorney-client privilege 101. The client comes into the lawyer's office and says, I expect to be charged with bank robbery. What are my defenses?

Okay, you didn't do it. You were a thousand miles away. The money was yours anyway. The bank is crazy. They charge you with bank robbery every time they're in there because they don't like the way you smell. You don't remember it. It's an insanity defense. Whatever the defenses could be, that's a privileged conversation that can never.

be revealed. Or the client comes in and says, I'm about to rob a bank. If I do, what will my defenses be? That conversation is not privileged because that is the client using legal advice to perpetrate a fraud or a crime. That's what a federal judge found Trump did. So he tells lawyer A, and we know who this is, tell the grand jury that we gave them everything. I don't have any more documents that they're looking for. Lawyer A is smart enough not to do it himself. He tells lawyer B. She signs a statement under oath, swearing that there are no more documents in the House. Then, of course, the FBI executes the search warrant and finds the documents. Well, when that happened, the Fed's subpoenaed lawyer A and his notes, he moved to quash the

subpoena. Trump joined the motion. The federal judge had a secret trial, secret because it pertains to grand jury materials. Everybody but Trump testified. The federal judge at the end of the trial found that Trump lied to his own lawyers. Therefore, the crime fraud exception to the attorney client privilege pertains. He used his lawyers to perpetrate a fraud in the FBI and a crime on the grand jury by inducing one of them to commit perjury. So when lawyer A. Well, that's not exactly the same as asking your lawyer how to get away with robbing a bank? Does that precedent apply? I'm giving

you the first year law school example of how the attorney-client privilege works. Of course, it's not the same. No two examples are the same. So when that lawyer, whose name is Evan Corcoran, was testifying before the grand jury,

he says, by the way, the president told me to take these documents to my hotel room and make sure they disappear. Now, that's the basis for conspiracy to obstruct justice. So back to your original question. The evidence against him is so strong. It doesn't come from Democrats who hate him. It comes from people that he employed, people he trusted, people who worked for him or his own mouth. That's why this indictment so startled people like Alan Dershowitz and me. Listen, I love the guy.

sent me a message last week, love you and miss you. How startling is that? I've been his friend for 37 years, but I have to be intellectually honest when appraising this. I'm not saying that I would charge him with this if I were the Attorney General. I'm just saying the charges as frame are powerful. The evidence as presented is overwhelming. The defenses available are limited. Where do we go? To a trial, I guess. well folks sad to say they lied us into war all of them world war one world war two korea vietnam iraq war one syria afghanistan iraq war two libya syria yemen all of them but now you can get the e-book all the war lies by me for free just sign up the email list at the bottom of

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See The Roses, only in theaters, August 29th. Get tickets now. All right, now, I know this isn't your expertise, Judge, But as you're telling this story, I have to wonder, what the hell is going on down at Donald Trump's country club, where he's decided to keep these documents specifically, where he's got these ridiculous shenanigans going on. Go hide this in your hotel room. I mean, how compelling is the evidence? That's really true. A guy testified to that.

We know an indictment is still just one-sided. How much of this is really demonstrated in the indictment? And look, I understand that we're talking about Donald Trump, and he makes very strange decisions a lot of times. You know, felony stupidity, I think, would be one way to put it. I mean, here, he's not harming anyone. He's not committing a crime, but he's committing the ultimate offense against the national security state that he knows, hates him. You said that if you come at the king, you better not miss. Hell, they don't care about that.

They pretended to investigate him for treason for three years. years you know he knows how bad they have it in for him and he's just walking right into a buzz saw here what the hell you know if you know him as i do you know that he's a very headstrong person who rarely takes advice from his lawyers he had a team of lawyers who have since resigned who told him that they could work out deals with the DOJ and with the national archives which would have resolved this as a civil dispute. Then he had another team of lawyers who persuaded him, this is not you, this is not your personality, you've got to fight this tooth and nail.

Now, as a result of taking that very poor advice, he's facing likely prison time. Is there anything to substantiate, to answer your question, what this lawyer, Evan Corcoran told the grand jury? I'm sorry to say there is. Mr. Corcoran took almost verbatim notes in shorthand, and the government has all of those notes in shorthand and translated. Yeah. Well, and now so about him going to prison, I mean, it is pretty unprecedented that they would bring these charges.

And, okay, I admit I didn't read the article, but I saw a tweet that said that Andrew McCarthy, the former federal prosecutor, wrote in the National Review that Biden himself had to sign off on the Justice Department making this a criminal matter and calling the grand jury together and all these kinds of things. And I guess the idea is that like Bill Clinton and George Bush and Barack Obama, Donald Trump should remain above the law. Presidents can do whatever they want. When the president does it, that means it's not illegal, said Richard Nixon, who,

Yeah, I was forced to resign from office. But look at the rest of these guys, and I know they call it, What Aboutism? But it seems pretty strange that this guy is actually going to be brought to the dock here? I don't know. Sounds pretty crazy. Well, you know, I know, and I like Andy McCarthy, but I disagree with him that Biden would have signed off on this. I don't know if Biden did. I don't know what the relationship is between Biden and Attorney General Garland.

But under the law, Garland is the only one who needs to sign off on this. Okay. Well, I should have read that article before I went bringing it up to the judge in court. I should have known that was going to get overruled. All right. So what else do we know about the documents other than these supposed Iran war plans? That's a very interesting question. Is the government going to show the documents to the jury and thereby expose the secrets

that the government says the secret? Well, there's a federal statute that addresses this. I hate the statute. I think it's unconstitutional, but it does allow a federal judge to examine the documents in secret with prosecutors and defense counsel and the defense counsel. the defendant there and then conclude as a matter of law that they are NDI, and that relieves the government from the obligation of demonstrating to a jury that they are NDI. Now, if the defendant wants to challenge that their NDI, normally that challenge would be

done in secret so that the eye of the NDI, whatever the information is, so I'll give you an example. and so, a member of the Revolutionary Guard, is also an asset of the CIA. And while being a lieutenant colonel in the Revolutionary Guard, has been paid a half a million a year to provide us with information about the Ukraine or about the Iranian military capabilities. Now, if that information were to get out, you can only imagine without getting graphic what would happen to the so-and-so. That's the level according to the government of the NDI secrecy. Would that be shown to a jury? Probably not.

The jury would risk, the feds would risk losing the case before showing something like that to a jury. That's why they'll go through this procedure whereby a federal judge sees it, the defendant challenges it, the federal judge rules. That's for the gray male. That's how they deal with the gray male defense, right? That's how Ali North was acquitted. And now it really does sound like, I mean, I don't know Trump as well as you do.

I only know him from the TV, Judge, but it seems like, you know, he probably wasn't going to sell this stuff to Israel. They have it all anyway. Oh, I can't imagine. I can't imagine he was going to sell it. That's the Rosenberg's case. That elevates this to death penalty case. and there's no allegation of that at all. Knowing him as I do,

I think he can't accept or tolerate the reality that he lost the election to Joe Biden and he wants to surround himself with as many trappings of the presidency as he can. And I think he enjoyed the type of, hey, look at what I have here, plans to invade Iran, just like I was still president.

have this stuff so I think it was vanity and boastfulness I don't think it was traitorous yeah and that's the thing is what a trivial thing right is just for because it makes him a sort of giggle

and giddy to be able to have this status I hate to say this but I said it in the article he is often his own worst enemy because he he believes the the advisors he's been speaking to last on he believes the political side of the advisors

who show him as a macho man rather than the more sensible ones who can tell him how to get out of it you know can you go back to the lawyer to whom he said take this to your hotel room said i'm not going to touch it i don't i can't put my fingers on it i don't have a national security clearance and neither to you mr president yeah I'm sorry, could you take us one more time through how many different opportunities they gave him to give up these documents before they actually started moving to indict him? Well, I don't know, but it's at least three or four. First, very amicably, in a letter from the – see, the National Archives keeps a record of everything that comes into the White House so they know everything that comes and everything that comes out, so they know if the lists don't match. The first letter resulted in 15 boxes from Mar-a-Lago going back to the National Archives.

And in there was NDI. Now, the National Archives, people can't touch NDI. They didn't know what the hell to do with it. They called the FBI. The FBI went over the National Archives. They couldn't touch it. The FBI called other FBI agents who do have national security clearances, and they picked it up, and they brought it to FBI headquarters,

and they examined it, and they realized what it was. And that resulted in a letter from the DOJ to Trump asking for more. He sent in more. They checked with the national archives. It still wasn't everything. That resulted in the opening up of a criminal investigation. They explained all this to a grand jury. The grand jury sent a subpoena.

That's when the shenanigans started, take it out of the storage room, move it in, move it out, to your hotel room what happens if we just tell them we don't have it they're not going to break into my house that kind of a conversation um that resulted in the lawyers saying in response to what the government says is trump's lies you have everything that resulted in the FBI execution of the search warrant so there were probably funny about how you count them three or four opportunities to cure this there was an opportunity to cure it as recently as a few weeks ago before the grand jury voted to indict. I don't know what the terms of the cure were,

but whatever they were, Trump rejected them. The indictment came out. The lawyers who negotiated the cure resigned. This is another problem. What's the cure again now? Can you? Yeah, I don't, I don't know. That's essentially, that just means an offer like a compromise, a plea deal. Yeah, some sort of a resolution of this on the civil side. He probably would have had to have admitted that he took the stuff, but it's not admitting a crime. And if he had done that. The lawyer's resigning is a very serious issue because in this case, there are more than one million pages of documents. He now has nobody on his team familiar with those.

And he doesn't even have a new legal team. So he, his new lawyers are going to have to start from scratch. One last question was if he had resolved that on that cure a couple of weeks ago on the civil side, that would have short-circuited the criminal case probably then? Yes. But it would have impaired his ego because he would have admitted it was not criminally but civilly that the documents were not his, they belonged to the government. Man.

Now, I haven't seen the terms of the cure. I've only read about it in open sources. All right. Well, what a story. Thank you, Judge, so much for your time. Really appreciate all your insight. Oh, my pleasure, my man. Talk to you soon.

All the best. All right, you guys. That's Judge Andrew Napolitano. Watch a show Judging Freedom every day on YouTube. The Scott Horton Show, Anti-War Radio. can be heard on K-P-FK 90.7 FM in LA. APSRadio.com, anti-war.com,

Scott Horton.org, and Libertarian Institute.org.