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Jan. 20, 2023 - Rudy Giuliani
33:29
Two legal giants have a discussion about the stolen documents | January 20 2023 | Ep 307
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It's our purpose to bring to bear the principle of common sense and rational discussion to the issues of our day.
A great deal of the reason for America's constant ability to self-improve is because we are able to reason, we're able to talk to each other, we're able to listen to each other, and we're able to analyze.
We are able to apply our God-given common sense.
So let's do it.
Today we are going to examine both sides of the, let's call it the investigation of removed classified material.
And we're going to try to examine it in a way where we look at it dispassionately and from the point of view of what damage has this done to our Constitution and how can it be fixed.
Because the outcome of the case, or the cases, as you'll find out when we get into this, and I think maybe you know from prior podcasts, with one exception in terms of if something is found, it's pretty much obvious at this point.
We're going to waste millions of dollars and there's going to be no prosecution of either President Trump or President Biden.
The examination of this case, the facts of these cases are enormously important to our fixing a lot of what's wrong with our country right now.
And there's a lot wrong with our country right now.
Our constitution is in grave jeopardy.
It's been attacked horribly.
It's been trashed in the name of trying to get Trump.
Now it becomes trashed in favor of getting your opponent.
And we are now, instead of kind of the example to follow about how to have a fair and honest criminal justice system, we're a follower.
We're following the banana republics where it was common to try to put your predecessor in prison.
Look at what Lula is trying to do in Brazil.
He was the president of Brazil.
He went to jail because he's a crook and a communist.
Communists are crooks.
Please understand that.
I mean, they all are millionaires.
It's all a bunch of bull nonsense.
It was from the time Marx invented it.
It's the reason they all fail as governments.
It's the reason why they kill so many people.
So Lula was very popular.
He was going to save the people like the American left.
He didn't save the people.
He saved himself.
He went to jail.
A judge let him out of jail.
I think he had like a 12-year sentence.
A left-wing communist judge And somehow, don't ask me about the illegal system, had the power to sign something like a president can pardon and let him out of jail.
He ran against Bolsonaro, who was a choice that was a way out choice, a right wing.
He was the Trump of South America.
I know him.
I love him.
He's a very good man.
And then he defeated Bolsonaro in a very close and truly disputed election.
Truly disputed, meaning I wasn't there, I don't know, I can't tell you the details of it like I can 2020, but Bolsonaro and the people who work for him say that they were cheated.
The fact that they would cheat in a Brazil election is almost a given.
Who got the advantage of the cheating, I'd have to know more.
But I certainly wouldn't just dismiss the claim like, oh boy, and it was as close as this.
Now they're investigating Bolsonaro, they want to put him in jail.
This is typical banana republic politics.
Isn't that what they're doing with Trump, right?
The whole raid was nonsense.
The whole raid was a criminalization of something that should be civil by an attorney general who's a puppet.
I mean, this is like Edgar Bergen and Charlie McCarthy, if you're old enough to know what I'm talking about.
If not, look it up.
And they're being hung by their own petard, actually.
Because having set that standard with Trump, having tried to convince the American people that what Trump was doing was possibly criminal, instead of just leaving it the way it's been with every prior president, and particularly now under the Presidential Record Act, which has no criminal penalties, to try to read criminal penalties into it when you don't have to, shows the partisanship nature of our justice system.
It shows that we've become punitive, vindictive, and that we go after our political enemies, not just ideologically, but criminally.
And then all of a sudden, although it was known but hidden for a long time, it turns out that the current president who's bringing all these punitive malicious action against his predecessor and possible future opponent has done precisely the same thing and arguably worse.
Because in one case, the documents that were in question were all part of a process of debating and arguing over to whom they belonged under the Presidential Record Act, which I emphasize has no criminal penalties.
The other, the documents were missing for six years, under no statute other than the two statutes that carry criminal penalties, because one is the vice president at the time, and the criminal penalties apply.
The other is the president of the Presidential Record Act, criminal penalties don't apply.
And finally, the president can declassify any document any time the president said that he did, and it makes sense that he would.
To protect himself, among other things.
So, we got ourselves into this terrible situation, and now whether it's an indication of incompetence, lack of recollection, dementia, or criminality, The White House and the President have bungled it so much.
If they're not guilty of a crime, they made it look like they're guilty of a crime.
First they show certain documents, then other documents, then other documents.
The documents in one case are in an office, which is paid for by the Chinese communists.
The documents in the other are out on a stand next to a car in a garage.
And a certain drug addict, who at that time was in business with the Chinese communist spies, so was Joe Biden, was passing them every day, going past them every day.
So that's where we are.
To give some sanity to this, and also to give some balance to this, I thought it would be useful to talk to someone who can see both sides.
Purely as a lawyer.
And a lawyer with great dedication to the Constitution, whether you like him, you don't like him, or whatever.
I've known him for many, many years.
I've been his adversary in court.
I've debated him in his classroom.
I've debated him elsewhere.
I would say, to a large extent, in the answer to constitutional questions, we come out differently most of the time.
However, I would also tell you that we firmly agree on the same constitutional principles.
Our arguments are all about interpretation, and sometimes we can persuade each other, sometimes not.
That's the way it should be.
And I have to tell you, he's a great thing to have right now because there aren't too many like him anymore.
We will take a short break.
And when we come back, we will have our guest with us.
I want to remind you that we have got to help our friends.
And I've asked you before, but this time I want you to do it for sure.
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And now we are very pleased and honored to have a great constitutional law expert, maybe the preeminent in the United States, a great professor, a great lawyer, occasionally an adversary, a lot of times a friend, and a I think he's the last liberal that's left.
From my old days, the ones that I used to respect so much, even when I disagreed with them, one of the things I respected them for was defending the positions of people they vehemently disagreed with on the basis that's the only way you can protect the First Amendment.
I can think of a few people that still hold that view, which is so quintessentially American.
Alan Dershowitz is the hero of it.
Alan, thank you for being here.
Well, thank you so much.
I remember fondly when you used to come to my class at Harvard Law School, and we would argue.
And then you would invite me to come down to talk to your U.S.
attorneys, and we would argue.
But we talked to each other, and that's not happening today in the United States.
People are shouting at each other, bumper stickers, ad hominems, but they're not having conversation and learning from each other.
Yeah, and I think maybe we didn't even realize it.
But we did agree on a certain, we could probably write down 10 basic things, rights that we agreed on.
We might then disagree on interpretations of them.
Sometimes yes, sometimes no.
Sometimes you could persuade me, I could persuade you, or we couldn't.
We just agreed to disagree.
But we still believed in the right to counsel.
Like I think, I remember my years as US attorney.
For me to approve a search warrant for a lawyer's office, The lawyer would probably have, I probably have probable cause he was going to commit a murder in his office.
But to actually want to go after his records, I couldn't imagine doing that.
I mean, actually once, which I can tell now, turned down one for what could have been a mafia, a mafia commission meeting in a lawyer's office.
And I said, no, I think we, I think we can get it through.
I think we'll be okay.
We got a great case.
We got 2000 hours of great tape.
And this could jeopardize it.
I wasn't sure if it would or it wouldn't.
Maybe, you know, you'd make a great argument in the Supreme Court and the whole case would go, right?
So there was a certain amount of fear of those rights or respect for those rights that prosecutors have.
Now, now they just, they do anything and it's like we live in a different world.
Like those rights don't mean anything.
Yeah.
I think the search of Mar-a-Lago was such a mistake.
I don't blame the magistrate.
Magistrates are supposed to, based on probable cause, give out warrants.
I do blame Garland for seeking a warrant.
He could have gotten a subpoena.
He could have—member Trump was far away.
He was in New York or something.
He could have said, produce those boxes in court tomorrow, untouched.
There are so many alternatives, less than a full-blown search warrant, with also getting lawyer-client communications or That's the reason.
Yeah, yeah, yeah.
That's exactly the reason you don't do it.
That's right.
Yeah.
I mean, in my case, they searched my law office.
Yeah.
No, they did not.
I had ten other clients.
Look, what they have done to you, the idea of suspension without a hearing, is such a core violation of due process.
You know that I disagree with you on the election itself.
Right, right.
Defeated properly, but the idea, the idea that they should go after you and suspend your license without a hearing, without a hearing.
I've written about that extensively.
I appreciate that.
I hope that, you know, it's not for you to appreciate.
I didn't do it for you.
I did it for the Constitution.
I know you did, which is, which is the reason I have so much respect for you.
Well, so now, Alan, tell me about your view, because I don't think anyone else would be as valuable here, because you're being on both sides of this at different times in your career.
Tell me about your view of the two situations.
It really is a very, very unusual time in American history that the two, the President of the United States, the former President of the United States, possible opponents in an election two years from now, are being investigated Well, essentially, categorically for the same thing.
Different set of facts, but if you ended up with a prosecution, it would be similar statutes.
Both for anything from proper to criminal handling of classified information.
The good news is this is the first time in the last few years that all Americans agree about one conclusion.
Every American agrees that the Trump situation is categorically and dispositively
different from the Biden situation, except that half of Americans think Biden is the worst. So
they agree that there are differences, but in America today we can't agree. I mean, my analysis is
they were both sloppy.
They were both careless.
Neither did anything malicious.
Neither did anything to hurt the security of the United States.
Conceivably, maybe one of them or both of them wanted to take some material to have them available for the memoirs, but there's no evidence of that at the moment because they didn't seem to have access to them.
This is not Sandy Berger's case.
And so there are some arguments that make Trump worse.
The lack of cooperation by his lawyers early on compared to the apparent cooperation by Biden, but there are situations
that make Trump better.
Namely, he was the president at the time, and if he did declassify this material, then
it was appropriately declassified because there are no criteria.
But I think the headline is the same for both cases.
Both people mishandled material that they should not have had possession of outside
of secure areas.
And therefore, I think it's 100% clear that there will be no prosecutions of either of
them.
Yeah, yeah.
For practical reasons, if for none other, right?
First of all, the sitting president probably can't be indicted.
You can't not indict the sitting president, but indict the guy who's going to run against him.
And it's not so important that Trump is a former president.
What's much more important is that he may be the person running against the current incumbent.
And you can't have even the appearance of injustice.
Which is why I believe Garland did appoint a special prosecutor in the Biden case only because he had already appointed one in the Trump case, and he couldn't be perceived as doing anything different.
Now, there are all sorts of possibilities as to what the genesis of this was, but in a way, Garland created this situation by criminalizing the approach to Trump.
I can't believe, and in fact, I more than can't believe, I have every reason to believe that other presidents have been equally sloppy, equally careless.
I've handled classified information, but I was a kid at the time and I was frightened out.
Every time I touch it, I'd be frightened.
Yeah.
But as I got older and I was in the White House with Reagan, in the White House with other people, it's different when you're handling it every single day.
I'm sorry, they're just human.
And then the presidents believe they can take it anywhere with them because they're the president.
And my guess is the last five or six presidents you could have created a situation like this anytime you wanted to.
I agree with you completely.
Also, I think once you've seen so much classified information as you have, you come to the conclusion that over classification is rampant.
Too many things are classified.
No question about it.
Don't involve national security.
They involve protecting the reputations of the people involved.
And it's like crying wolf when you classify everything.
Then classification doesn't become as significant as it would be if you only classified the material that really affects national security.
Yeah, which is a far smaller amount.
I think your argument is absolutely correct.
But it also gets to the other thing that I know troubles you, troubles me.
Somehow we have to fix it.
That's the over-criminalization of anything political.
This is an area where 20, 30 years ago, and But look what's happening in Israel now.
You stay out of the political realm.
Yeah.
With criminal prosecution, unless you are forced to get involved, unless it's a bribery
that's apparent, a murder, an extortion.
But these are interpretations of record-keeping statutes.
But look what's happening in Israel now.
They made the terrible mistake of criminally prosecuting Benjamin Netanyahu.
That resulted in him having to form a government that is very right-wing.
It really influenced everything.
And in the end, there was nothing to it.
There is nothing to it.
Netanyahu did nothing that warrants criminal prosecution.
But all over the world we're seeing this.
Look, even taking it outside of the realm of politics, just to do one minute I don't think that it was right for the New Mexico prosecution authorities to go after Alec Baldwin.
That was a pure accident from his point of view.
Now, there may have been negligence from others, but he's an actor.
He's handed a gun.
He's told, clearly, there's no live ammunition.
He pulls back the hammer and tragedy— You know, if you read the defense of it in the newspapers, it's the way he's acted.
He's acted too arrogant.
But you don't prosecute somebody for acting too arrogant.
And you shouldn't be a prosecutor if you're going to be affected by that.
But it also follows from the Kim Potter case.
This is one of the greatest injustices of modern American history, where a former highly decorated police officer, one, is chasing a felon.
The felon has a history and is about to get in the car.
endangering the life of the other policeman.
Yes.
So she pulls out what she believes is her taser and shoots him and she made a terrible mistake
and she killed him with a real gun.
And now she's in prison for quite a long period of time.
You know, in America, accidents are not crimes.
You have to have some, some kind of criminal state of mind.
It can be gross negligence, okay, but you can't just prosecute people
because you don't like the result.
But that's what's going on with over-criminalization, mostly in the political area, but it's morphing into other areas as well.
How do you see how you pull back from this?
How do we reform and correct it?
Because it really is at the stage where it isn't just over-criminalization.
Most of these things are violations of due process and specific constitutional rights.
Let me tell you why it's going the wrong way.
So Trump gets impeached for a violation that doesn't meet the constitutional standards.
Abuse of power.
I defended him, as you remember.
It never should have happened.
So what are the Republicans doing now?
They're trying to go after Mayorkas on similar grounds that it was dereliction of duty.
That's not in the Constitution.
There's too much tit for tat, too much.
If the Democrats did it, the Republicans do it.
If the Republicans did it, the Democrats should do it.
And it doesn't help America when two wrongs are supposed to make a right and they instead make a third wrong.
Sure.
So you look at the Constitution and it says high crimes and misdemeanors.
Then the interpretation is, well, it can be interpreted beyond that to dereliction of duty.
But why would you want to interpret it beyond that?
Why would you want to expand the number of times the legislature can interfere with the executive and remove a president?
I mean, it should be construed strictly to limit the number of impeachments.
Wisdom would dictate that.
That's James Madison and Alexander Hamilton.
They both said it.
Madison on the floor of the Constitutional Convention rejected maladministration, saying it would give the Congress too much power over the executive and turn us into an English parliamentary system.
And Alexander Hamilton said the greatest danger would be using impeachment for political purposes and deciding not guilt or innocence, but who has the most votes.
The spirit and the words of our Constitution, but I agree with you.
It's over criminalization.
It's weaponization of the Constitution.
It's partisanship on both sides.
And I think we all, if we really love the Constitution, as we both do, we have to fight against it, whether it helps or hurts.
I 100 percent agree with you.
And in fact, that's the most valuable thing that can be done.
And it's the only way we can possibly get people to focus on it, because now the script for both sides is written and everybody just reads the script and they stop thinking.
Oh, it's you have to be you have to be On one side.
And if you deviate from that one side, you're a traitor.
And that's just not the way it should be when we have a constitution to construe.
Well, these ideas are priceless because they come from you.
And because they come from someone that can say, on the one hand, that you believe the election of 2020 was legitimate.
And that you have every right to believe that.
I respect your right to believe that.
I disagree with you.
We could sit here and argue all night about it, and then we finish and argue about the Yankees and the Red Sox.
Yeah, yeah.
Right?
And that we'd be angry about.
You know, we remember that game we went to where we showed our rings?
We put a Yankee ring.
And we'll see what happens next year.
As we used to say in Brooklyn.
Well, you know, you're a very, very special man, Alan.
I have tremendous respect for you.
You've probably always been very necessary.
You're probably more necessary now than ever before.
What I told my class, I remember when I introduced you once, is that I knew you would be a prosecutor rather than a defense attorney because you grew up in Brooklyn and you're rooted for the Yankees.
Well, it's great to talk to you, Alan, and thank you again for what you're doing for our Republic.
God bless you.
Well, that was a very interesting interview with Alan Dershowitz, my friend and a friend of America.
And someone who can argue the other side of many of our conservative positions, but he can do so based on common sense, logic.
Sometimes he even convinces us and sometimes we even convince him.
And many times we don't, but we leave with a better understanding of the other person's position.
This is the America I grew up in.
It's not the America of today.
This is the America I want for my children and grandchildren.
So do you.
That America is the greatest country in the history of the world.
You don't just claim that title.
You gotta prove it.
And I think Alan Dershowitz helps us in doing that.
And I think there are people on our side who do the same.
And then there are many people who hurt us.
We've got to listen to and give voice to the people who can argue and do so with respect for the basic rights that we have as Americans, even though we interpret them somewhat differently.
Well, I think Alan covered it.
I think I covered it, most of it, where we are right now.
I think the thing I should emphasize as we close is that analysis of Alan's is perfectly correct if the facts remain where they are right now.
And they could.
What I mean by that is there is no evidence on either side that there was any misuse of these documents or intent to misuse.
In the case of Trump, it was an analysis under the Presidential Records Act as to whom they belonged, which the Act talks about and allows.
If he went too long with it, that's really an interpretation of the archivist.
The statute doesn't say how long you have to decide this.
And to say he obstructed is really somewhat unfair, since he was in constant communication with them.
They came and looked at the documents during the course of this.
They actually took some earlier on.
They made recommendations to up the security, which he did.
And in the case of Trump, the documents were always, there's no allegation the documents were ever insecure.
They weren't as secure as they would be under the government, but they were more secure than they would be in 99% of America.
And they were gone for a relatively short period of time and they were always retrievable.
Hardly the makings of a criminal case, so that case should go away.
In the case of Biden, you could technically make a criminal case against him.
The statute says you can't remove a government record or a classified document.
Now, he did.
They are removed.
There they are in an office either wholly or partially funded by the Chinese communists and a foundation for Biden's benefit funded by his business partners, the Chinese communists.
And then they're in his home, in one case inside his home, in the other case they're outside in a garage in the wide open that people who have contacts with Chinese spies pass every day.
That reaches a recklessness, doesn't it?
And that's what the statute demands for prosecution.
So yes, you could prosecute.
But you can't, because the memo of the Justice Department says you can't prosecute a sitting president.
The most you could do is turn him over for impeachment.
Based on the facts we have right now, that would be completely irresponsible.
Because it looks like, right now, it looks like a terrible, stupid mistake.
And the same thing for prosecution.
Now, here's the difference.
Given the fact that there are some coincidences here, and any good investigator never closes the case until you answer the coincidences, right?
Because the coincidence is the real crime.
The coincidence is, of all the countries in the world that have taken documents about, they involve Ukraine.
I mean, these people, there's no question.
We can't, for this purpose, dismiss the hard drive the way the crooked Democrats do.
You know, it's been debunked.
It's Russian.
It's Russian.
It's true.
They took bribes from Ukraine.
And the documents involve the country he took bribes from.
Got to be run down.
And they've got to find out, is there any connection between the vast amounts of money the Biden crime family got and the documents that he took?
I mean, are there documents involving the other countries that he took money for?
China?
Russia?
Romania?
Kazakhstan?
A few others that I know about.
But don't have the proof that we have of those.
But there are four more countries that they should run down because they're in the hard drive.
Without the same level of proof as the ones that I just mentioned, where the Biden crime family got millions and Hunter Biden has told us that half of that went to his father.
I know you don't know that because they try to hide that from you.
But there's a definitive text right in the hard drive making it clear that Joe got half of it.
Half of the money, half of the bribe money for 30 years.
That revelation of the $50,000 rent That Hunter was paying for the home that he owned to his father.
It gives you some idea of how they funneled the money to him.
The mention of this guy, Eric, that you'll see in the hard drive, that's the guy who was the middleman.
So there's a lot here that's got to be looked at.
So we satisfy ourselves that this was, as it might be, just a mistake and a careless handling of information, which I think every president has done for the last 50 years, or it is connected to the vast and long-term and
very deep corruption of this thoroughly criminal family.
Well, thank you very, very much for listening in, for watching, and we'll be back very shortly,
both continuing on this and the many other things that are necessary to preserve our
way of life and to protect our form of government.
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Okay.
God bless you.
God bless America.
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