Merrick Garland Painted Himself Into a Ridiculous Corner

CLAY: We are breaking down here on this Friday edition of the program the just released redacted affidavit to justify the FBI raid on Mar-a-Lago. I would say 50 to 60% of this document is completely blacked out. We are discussing the parts of the document that we can see. Buck, based on everything that I am reading — and again this has just come down in the last 20 or 30 minutes; so, we’re reacting in real time to it — this effectively is — we talked about Merrick Garland being painted into a corner.

There is no dispute that I have seen that Donald Trump had access to all of these documents legally when he was president of the United States. The dispute now seems to be, did he have the ability to keep these documents? And, if not, was his keeping of these documents such a significant deal that there can be criminal charges brought against him? Absent, Buck, absent any suggestion or evidence that Trump was somehow trying to sell these documents or that there was in some way a threat of him — it’s basically committing espionage, right?

Like, “hey, oh, Saudi Arabia, do you want to see what the new fighter jet looks like? Give me $500 million and I’ll give you those documents.” Absent something like that happening, which so far there is zero evidence of it, and I think would have already been leaked to the New York Times or the Washington Post, friendly media to the Biden administration, Merrick Garland is faced with a ridiculous choice that he has put himself in, which is either acknowledge that ultimately, we got these documents back. There’s no issue. We think maybe there were crimes committed over storage but we’re just gonna move on.

Or he’s going to charge Donald Trump with improperly storing government documents, which, to me, would be a complete political gift to President Trump because it would confirm in many of our minds what we already suspect, which is there has been a rig job designed to try to get Donald Trump since he announced that he was running for president. And ultimately all they could get him for was improper storage of potential government documents. That’s my big-picture analysis of this, Buck. What would you add that you’re seeing as you’re reading through this with, to be fair, a substantial national security background and lots of experience dealing with redacted documents and top secret and classified documents in your career?

BUCK: One of the up sides of radio is you do get the occasional commercial break, right?

CLAY: Yeah.

BUCK: So, I read the whole thing which was made easier by the fact that there are whole pages that are basically redacted. So, while 38 pages it’s really more like reading, you know, 15 pages. Some things that stuck out to me, Clay. And of course, talk about reading between the lines, I mean, that’s exactly what you’re doing here ’cause there are lines that are blacked out all over the place. You gotta read, really, between the redactions. They say that they found in the 15 boxes of information that was initially transferred to the National Archives 25 documents marked top secret, and then a larger number of confidential and secret level documents. Confidential and secret, for anybody out there, is generally not really — I mean, it is covered under law, but it’s usually stuff, especially the confidential level. I mean, there’s a lot of stuff that you’ll say, should this even be classified? Probably not.

CLAY: And they aggressively would be more likely to label something confidential than not —

BUCK: Yeah. Overclassification in the federal government means that confidential and even at the secret level is often information that most of the people listening to the show, if they saw documents marked — depends. There’s millions and millions of pages of this stuff. But most of the time you see they’d say, that doesn’t seem that secret to me.

CLAY: Yes.

BUCK: It depends, though. If the source and method is compromised, that’s where it gets a bit tricker. Sources and methods are what the intelligence community always has to protect. They go into an explanation in the affidavit of HCS, FISA, ORCON, and NOFORN which is different designations for classified information. 25 top secret documents in 15 boxes of presidential records does not seem to me like a very… You know, it seems to me like obviously these would be things that if they were legitimately classified at that level, it was an accident that they were brought or Donald Trump decided that these are declassified when he’s president.

Now, there’s supposed to be a procedure for that, but they do make a case here in some of the legal correspondence between Trump lawyers and the National Archives. They make the following claims. One, that the president has total, absolute authority. This is in a letter, May 25th, 2022, from one of his lawyers, Jay Bratt, the president has absolute authority to declassify these documents and cites the statutory authority for that and then presidential actions involving classified documents are not subject to criminal sanctions. So, he’s essentially saying the president can take whatever documents he wants.

There’s actually no criminal liability here. That’s the case that the Trump lawyer is making which is an interesting one. The other thing, though, Clay that this will… I’m gonna throw the ball back to you here for a second. They had a privilege review team that the set up and deployed here because they knew in the search for records, they were taking legitimate presidential records that Trump has a right to keep. They have seized boxes full of that now and also attorney-client privilege information. Now, they set up the privilege review team in this affidavit to tell us all, don’t worry. Whatever Trump and his lawyers were talking about or anything like that, you can trust that we would separate that out, and that won’t be in the custody of the DOJ now. That’s where I start thinking January 6th, fishing expedition, what else do they have in store? So, that really stuck out to me.

CLAY: That’s why Trump is asking for a special master to review all of these seized documents. And for those of you who don’t know, the Trump legal team has filed saying, “Hey, we need effectively a third party to be reviewing what the National Archives is trying to take into their possession. What I just come back to again and again, Buck, is, ultimately is the first prosecution of a former president in the history of our nation brought by, even worse, his top political rival, as he prepares to run against potentially that man, is it gonna be over improper storage of presidential papers?

BUCK: Can I add one thing to this? ‘Cause you’re setting it up entirely properly. I would just put one more little piece into the puzzle. After the clear precedent was already set by the DOJ in the previous election of, this president, Donald Trump’s, chief political rival, 100% violated the Espionage Act, did so repeatedly, did so with top secret documents, did so with special access documents, did so in a way that was reckless and that was intentional and was not an accident, and she wasn’t the president.

She had no — the secretary of state has no declassification authority. They came out and said, “Sorry. She’s too important, so we’re not gonna prosecute her, Hillary Clinton.” In that context, they’re really thinking about bringing… Clay, it’s hard to fathom that they would really bring an indictment based on this, and I am not naive. I know how dirty they play. I know. But they gotta understand our side will completely lose their minds, and rightly so.

CLAY: Well, and I think it would play strongly to Trump politically. I think, honestly… Again, this is assuming there’s not some smoking gun, crazy allegation that’s redacted in here. But, Buck, don’t you feel like that would have already been leaked to the Washington Post and the New York Times if there was some… If they said, “Oh, we think we got a video of a Saudi Arabian sheikh showing up at Mar-a-Lago and Trump secretly trying to pass him the documents to decide how you get…” I mean, if any of that stuff existed, it would have been on the front page of the paper already.

BUCK: There’s also mentioned specifically in the affidavit of handwritten notes by the president containing classified information. Now, this is exactly what I was saying before. This gets into a very murky area. First of all, if the president writes it down and the president says, this is not declassified, who could possibly override that? Let’s think this through for a second. How you have separation of powers, this is executive branch information. How is somebody going to override…?

When I was classifying things in the CIA, I was doing so as an executive branch employee on behalf of the president of the United States. Yes, there are statutory considerations set forth by Congress, but ultimately the actual execution of the documents is all in the presidential purview. So, if President Trump wrote something up by hand and he says, “I’m taking this with me. This is not classified,” are we to believe that there’s some other…? What is that other entity that says, “Oh, no, this is classified”?

CLAY: Yeah. And here’s the other thing I would point out, Buck. To my knowledge there has been no suggestion that Trump didn’t have lawful access to all of these documents when he was president. Okay? I think that’s —

BUCK: The president can see anything.

CLAY: Anything.

BUCK: I was told this when I was in CIA — just so you guys all know — Clay, I did a couple of Oval Office briefings for George W. Bush —

CLAY: Yeah.

BUCK: — they’re like, if he asks you something, the quickest way to get fired is to say, “I don’t know if you’re cleared for that.” The president is cleared for everything on the planet.

CLAY: Okay. So, he has access to all of that. And then you’re telling me that on Inauguration Day of his successor, documents that he’s written on, documents that he has taken from the White House office, he doesn’t have access to them anymore. And this is where these crimes that would be alleged or charged or indicted for are only in response to a Presidential Records Act that I believe was passed, Buck, in the wake of Richard Nixon and did not take effect until Ronald Reagan came into office in 1980. The point I’m making here is, to my knowledge, there has never been a prosecution for anyone under this statute — this Presidential Records Act statute particularly.

BUCK: Yes.

CLAY: So, if there was a decision… Because prior to — and this is my understanding; I’m not a presidential scholar. But my understanding was, prior to this, everyone pretty much kept their presidential papers. So, if Ulysses S. Grant is writing his memoirs, he’s in his office going through all these other documents that he had. Everyone kept their documents until Nixon obviously was forced out and there was fear over him; and so, this new law was passed.

The reason why I bring it up is, it’s not only unprecedented to charge a former president with a crime, not to mention from the opposing political party as he prepares to potentially run against the guy who is your boss — all of that is unprecedented — but you’re also prosecuting under criminal statutes that are based to a large extent on presidential records acts under which no one has ever been prosecuted before. So, I guess what I’m building here, Buck, is, for everybody out there listening, you have an unprecedented potential charge being brought against the president.

And when I say “unprecedented,” I mean it literally has never happened before — and then you are building your unprecedented charges upon an act where no one as president has ever been charged under this act and, relatively speaking, it’s new in nature, it’s only existed to a large extent for 40 years. So, it’s double unprecedented acts for this to be occurring. It is staggering to me that Merrick Garland could even consider doing this.

BREAK TRANSCRIPT

BUCK: Taylor Budowich, who is a spokesman for President Trump, put out the following: “The release of a heavily redacted, overtly political affidavit only proves that the Biden administration is desperate to cover up their unprecedented, unnecessary, and un-American raid against President Donald J. Trump. This is a grave travesty. And what is unredacted only further supports President Trump’s position. There was no reason for a raid. It is all politics.”

Clay, one part of this that has to be added into the discussion I would be, if it were so sensitive and it were such a risk to national security, why did it take months? Why was it okay to go back and forth with lawyers? Trump said 15 boxes. It’s not like he said, “Molon labe my documents.” Anyway, I thought that was good. You know what I’m saying.

CLAY: I think that’s a fantastic question. And if they now have the documents, what crime is there, right? So, the crime is not that he has the documents. The crime is that he had it for 18 months. But if it was so significant to national security, why did he keep them for 18 months, why did the National Archives not know it? And again, I just keep coming back to this question: Is the National Archives really the place where every important, secure classified document is kept? Like, that seems crazy to me. I can walk into the National Archives, as I have done — history nerd brag here — and request that they bring documents out for me to review —

BUCK: You may be the only person I know who’s actually hung out in the National Archives.

CLAY: I know.

BUCK: It’s a baller move, Clay. It’s quite a flex.

CLAY: The chicks, you know, when you walk into National Archives; you walk out, they’re just throwing their bras at you. It’s like —

BUCK: Hey, baby, I’ve got my own National Archives pass. You want to go party?

CLAY: Sex-appeal incarnate. But you would have a ton of people, Buck, who would have access to these documents inside of the National Archives —

BUCK: Only if they… I mean, there’s a classified, obviously, storage section, but if you had a clearance.

CLAY: Right. But they’re going through all of the documents that Trump sent back, the 15 boxes to say what’s there. It just feels like a library book that was kept too long, and now you’re gonna charge somebody with a felony over it who wants to run for president?