we are here with assistant professor of law at george mason university. good morning. thank you for joining us. and we are going to be talking about the federal indictment of the former president donald trump and the legal issues that come up because the case involved classified documents. so, let's start there. what do we know about what kind of documents former president trump is accused of mishandling? >> there were 100 to two documents found by the fbi after the president certifies all documents have been returned to the national t archives.

only 31 of those documents are charged in the indictment but most of those documents there's about ten that are classified top secret. that sort of what you call above top secret. top-secret requires that if the information is released that it could cause major harm, extraordinarily grave harm to the national security, so compartment information that could involve information involving human intelligence over the imagery and the like. another eight are called a special access programs. those are also separate and more sensitive as well to the specific human source and highly technical and confidential collection capability. those are so sensitive that even the names of the compartments themselves are redacted out. so 18 of the 31 are highly

sensitive information about the top-secret level. >> okay, so there have been a lot of conversations about, and i just want to go ahead and set the scene. a lot of people will say he is the president. they gave it to him if he wanted to keep it he can. do you agree with that, why or why not? >> unfortunately, that isn't the law. as the president when he is in office he has full authority to classify and declassify informationl so how to declassify, then they are not classified that is apart from keeping or not to keeping the documents. can he two questions keep them or not to keep them are they classified were not classified on the question of classification or not to classification he claims to declassify them by thinking about it. that isn't a real way.

he can simply say they are declassified and to execute a formal decssification document but president trump himself declassified that in the highly classified imagese of man iranin missile by taking a photograph with his iphone and tweeting it out. as far as we know other than thinking about it there's no evidence and it may be in his defense that he declassify these documents. then on the question of keeping documents, if something is a presidential record that reflects the activities in office it's required to be turned over to the national archives that then maintains it for historical purposes. that's where the presidential records go. agency records like the classified documents here if you didn't take notes on them or anything else, they deal with them. and then any personal records, things that were his own sometimes even his own recollections of office he gets to take away and do what he

wants. so that is the dispute is that a presidential or personal record? in this case there's the argument for the president to make the argument that these were official government documents, classified some of the top-secret above level that at a minimum is agency records ornd presidential records with notes about what he was thinking during the meeting during the official presidential business. >> so we are setting the scene talking about former president trump's indictment in the way that classified documents aresi related to this case. you can call with your comment or your question for the professor. again assistant professor of law at george mason university. you can start calling now. w.republicans, 202-748-8001, democrats, 202-748-8000, independent, 202-748-8002.

you can also send a text message at (202)748-8003 and again include your name and where you live if you send a text. while we are waiting to receive some of your calls, you've talked about the degree of different classifications. do we know if there are classified documents that were in former president trump'ss possession that are not included in the indictment that would perhaps be too sensitive to be exposed? >> it's possible. we don't know the details of what other documents were there we do know at a general level they werewe classified at the top-secret leveling at a certain number classified as secret in a certain number at the confidential level so we know there's a number of classified documents a little over 100 to two documents, 31 charged in the indictment, but we don't know the details of what is in the 70 or so that weren't charged in the indictment.

>> then how are classified and nonclassified documents and information treated differently in a trial? >> there's a thing called the classified information act passed by congress that allows the government to introduce the classified material to the judge and allows the defense to have a look at it as well with appropriate clearances and the jury to look at it to protect it without being exposed to the b public so often times when they want to introduce information that remains classified into there's every reason to think they will likely remain classified they can introduce it to the judge, the jury, the defense can all see it but the public won't have the chance to see the details of the documents. >> we are starting to get some calls so let's go to the phone lines now. henry in nevada missouri on the democratic line. you're on. >> caller: what was the question again, i didn't get the

question. >> host: we are talking about a trump's indictment and involvement of classified documents. do you have a question or comment? >> caller: yes. i would like to say it's too bad that those documents were in his possession and i'm assuming biden is still under investigation for his documents as well. my opinion on that is if there's documents especially like that they shouldn't be able to get that far with what they did and what they should do next is find out if trump was going f to have any further input in releasing any information and if he hasn't or they can't prove that he has at the time he was the president

before the documents and after they found them he had no clearance and having them but i just big mess's it seems to me but at the same time it also seems like maybe something is not all there in the picture, maybe there's something we don't know yet that's going to come out later,u i don't know. >> host: let's let the professor respond to some of that. >> guest: she makes a few good points. number one the president, the former president is obviously innocent until proven guilty so the justice department has the burden of proof beyond a reasonable doubt that in fact he had these documents, he had them unlawfully and that he willfully retained them and failed to turn them over to somebody. that's what they need to do to prove up to 31 counts for the espionage act.ar there's others also against him, obstruction of justice, you know, destroying or moving

records and also conspiracy and making false statements. all of those related to what some might call the cover-up or alleges the cover-up and an attempt by the president to not only hired these documents from the fbi when they came to do the research, but before that from his own attorneys who then certifies they turned everything over. so, that we will see if the government can prove all those charges. there's a lot there to prove and again the president is innocent until proven guilty. two henries point this isn't the first time we've had a senior official identified classified documents. we understand the vice president had to the documents that he turned over into the justice department told him he is no longer under investigation. president biden had another document from his time as vice president and a facility in the dc area as well as some at his house.ho

he remains under investigation by the former counsel under president trump and maryland and so we will see what happens with those but again, secretary hillary clinton, that classified information on a private e-mail server, david petraeus director of the cia had classified material he gave to his biographer, so there's a lot of senior officials who had challenges with classified documents. the question is why does president trump charged and not others and the answer to that is he had the documents, he was asked for them back, didn't return them and it appears if the justice department's facts are proven that he made an effort to avoid turning them over suggesting to his lawyers let's say they are not here or we lost them where they were never here in the first place. >> host: the next caller yes diana in florida, republican line. what is your question or comment? >> caller: okay, i believe this is a continuation on the constant witchhunt that they are doing to president trump.

more than half of america loves president trump and we want him back. we will vote for him again. this business of documents here and there, biden wasn't a supposed to have any documents. he was vice president, not president. trump it just looks like that's all they want to do is go after trump. first it was russia and then it was other things and by the wayh president trump didn't pack hiss own documents. all that stuff was packed for him so he probably wasn't even aware of what was in every one of those boxes. they were all packed for him. all this is is a continuation of the witchhunt and we know it. i think it's disgraceful the justice department, the fbi, the cia, all of them are in cahoots. they hate trump because he

wanted to clean up washington. they are scared to death of him. >> host: all right, diana. how do you respond? >> guest: she raises a lot of points may americans are concerned about. this idea that the former president is under investigation in new york city, washington, d.c. commonalities charges, january 6th insurrection, and then what happened in georgia and of the effort to identify more votes in eurojust so there's multiple investigations going on and the president has made the point as did diana that this is part of a larger effort the use of government resources to pursue him and of those around him, which he also argued during his time in office that the russia investigation was part of that as well. the challenge here of course is putting to one side the new york state and the georgia charges looking at the federal cases coming out january 6 you have evidence that the government claims it has and has the burdea of proof the president is

innocent until proven guilty, but the president took the documents, wasn't authorized to have them, didn't have a clearance and that he willfully retained and kept them knowing he had a time. diana's point maybe he didn't pack the boxes or no. if he can demonstrate he didn't know, then he can't be convicted of those charges. but there are a lot of things to suggest that is laid out in the indictment that he may have known. talking tono his lawyers saying the documents were never here. maybe we lost them, maybe we can't find them. the saying move these boxes from place aid to be before my lawyers come in to do the search.on one wonders what that's about, they have to prove that it demonstrates knowledge, willful retention of the documents and if they can't't then there's an uphill battle. about a lot of people in this country have the concern about what's going on with the president and remember that this

is all taking place in the election cycle where the current president, forhe whom the attory general works into the special prosecutor works, running for reelection, former president trump being charged also running for reelection that makes this prosecution fraught with political issues that is what diana is raising. >> host: i'm curious, do we have any indication yet what may be former president trump's defense, whether it will be i didn't know or whether it will be these were my documents to keep? those kind of seem like you can to save both. do we know which one he might say? >> we don't know what the lawyers will sag in court.e we know what he said on a number of occasions into the things he suggested publicly. and again this may not be his defense. we will see what he says at trial but it appears to be a combination of i had a right to these documents, they are my personal documents.

i am allowed to take them and negotiate with her i give them back or not. i declassified them by thinking about them. i can do that. b i had a standing order to declassify, he can bringor witnesses to say he had a standing order or that may be his defense to the classification question. and that none of this really matters. it's a conspiracy as a part of the defense as well that folks were coming after me and this was a weaponize to abuse of the justice department and fbi to prosecute me. so those were some of the defense that he's laid out, declassification, authority to keep them and sort of the larger witchhunt narrative that's taking place. >> host: back to the phone lines. james is calling from new york, independent line. >> caller: good morning. i find myself agreeing with the last lady. i had a question because this is so legal.

the declassification when trump eswas president and had possessn of those boxes and order of ordered theseboxes to be sent ae president, doesn't that imply that those are considered residential records and then would have to go back to the presidential records to find out if that was ever in court and if it were something like that where the judge was adamant about what is considered official records. other than that i don't know about this moving boxes around. are they claiming that he moved boxes out or just around? isn't at all under secret service protection? other than that, haveet a good morning.t: >> guest: these are great questions. as to the question about was protecting the records and whether they are moved inside, outside, the indictment charges is a movement of documents within from place aid to place being. there is a discussion also about

documents goi o the golf course where the president is alleged to have shown some classified documents in a recorded conversation to folks that were not authorized to see them as well as to a political action committee representative so there's some questions but the primary charge, the obstruction is about the documents being moved by his aid from point a to point b before his lawyers came in to do the search. the other question about the documents it's only true the president they are not there too protect the documents they are there to protect the president. but the way they are stored, talk about top-secret, sensitive information they are sort of what is called a compartment information facility that is a locked facility with shielding around it so you can't get in or out. it has safes and combination

locks. when it's closed at night it's also closed with a combination lock with an alarm and responds in a certain number of minutes. at the very specific circumstances which you have to maintain them. if you ever take the document out of it you have to put it into separate individual locked compartments, double wrapped as it's called in one bag, lock that bag, and then you have to have a card with you saying you'rele authorized to carry top-secret information. obviously none of those procedures were in place in that ballroom or in the back in the way some of the boxes were stored. the images raise the question if there were classified documents where they secured appropriately and that's part of the challenge here that the president is going to have defending himself. now, as to the first question the caller asked about, this question about did the president

make them personal records by sending them down or did he declassified them simply by the act of saying i'm going to send them to the white house and put it on twitter, is that a sort of destructed classification it's a great question and the president may argue that at trial and we will see what the judge and the jury does. the president certainly has authority when he is president to declassify. did he make a declassification decision it's hard to know. he hasn't laid that out othernd than to say i can do that by thinking about it. >> host: the caller mentioned bill clinton, and there's an argument made by former president trump that there is a case regarding president clinton and some records that were challenged and that he should have similar discretion, so i want to first play the comments the former president made earlier this month referencing

the so-called bill clinton stock and lowercase and then denouncing his indictment this was at a campaign event in columbus georgia. let's watch a portion. >> the defining lawsuit that was brought against bill clinton was lost by the government, the famous case that he says he can keep his documents. they don't mention that. these are minor details and that's the ruling law. when i left office and was moving to florida, boxes were openly sitting on the white house sidewalk. everybody was taking pictures of them. this isn't a somebody smuggling boxes out. pictures of them you've all seen them, sitting with people from gsa and others waiting to put them on a truck but they were literally sitting outside of the white house waiting for a truck to come, then the truck comes, it was there for a long time, they put it in and brought it

down to florida and they make it sound like it's a big -- that's just by operation or that something bad we did a very poor job i will tell you. first thing you learn is don't put them on the sidewalk in front of the white house. as a former president, we were negotiating with a national archives and records administration just as every other president has done. and the next thing i knew, it was rated by gun toting fbi agents. >> host: those were comments from former president trump not too long ago, comments he made at a rally in georgia. now, he referenced what is known as the presidential records actf but i pulled up an article by the associated press. it says legal experts say trump's description of the law, which isn't mentioned in the charges against him is wrong and contrary to its very purpose,

while the 2012 legal case involving clinton isn't a sound comparison to trump's current legal predicament, again that's an associated press article but i will bring it to you. tell us a little bit about this case from bill clinton. in your opinion does it compare to the case president trump now faces? >> there are important similarities and differences in the cases. in the case of president clinton the question was, he made these recordings about his time in office, so he's talking about the official business he engaged in but there was personal recollection. there was memories -- he wanted to write a book or something after the fact him and he stored fees cassette tape recordings in a sock drawer and that's why it's called the clinton socket case. the question is are these tape recordings presidential records or personal records. ntremember the presidential

records act, which as you pointed out from the ap article is not mentioned in the indictment. it's represented in three categories, presidential records about the president's official time in office, the oprah show business and the like, personal records that are his own records that are his on his own rights and then federal agency records that they create under the federal records act. the presidential records and federal records these are to the national archives where the presidential records go to the archives. there's no question what happens with those. thee question is are these documents like the clinton sock drawer case are they personal records. president trump's argument is like president clinton's tapes they are aboutnt my time in offe but they are my own retion my notes o them, so they are mine. he can't just take any document becausthey will either be presidential records. the best argument he can make as

they are my persona recollection so they are mine.l then the question is okay about your time in office what are the notes about? it was a personal note, you know, whatever it might be. that note is a personal recollection but it's on a document that's an agency record that's highly classified data so putting aside whether it's personal or presidential record you can't take a classified document with you andas store it in an insecure place, and that's the fundamental challenge the president is going to face in these arguments. but there are some important similarities and differences in that case. >> host: let's go back to the phone lines. as a reminder, republicans, 202-748-8001, democrats, 202-748-8000 and independent, 202-748-8002. sheila is calling from youngstown ohio on the democratico. line.

>> caller: yes in the interview last night on fox news, trump returned to his defense the documents he had were declassified. if that's the case anyone can have access to them at this point which is a much bigger problem. any citizen can get copies and send them to anyone in the world. his lawyers were ordered to get clearances to prepare for the trial. if these w documents were declassified, they wouldn't need to get these clearances and you would think his lawyers would have objected to that. this is a national security issue. it's not politically driven because we can see that he's hes only gaining in popularity with his base. so i hope that people will take this seriously.

thank you. >> host: >> guest: if the president's argument is that he declassified of these documents, then the caller is right, they are no longer classified if in fact it is true that he declassified them and they can be distributed around the world. that may cause national security harm but the president has a right to make those decisions when he or she is in office. the president did it when he's in office, he is allowed to make that call and if that is true and they hold the documents, then yes they can be released publicly. now there is one small category ofs documents called formerly restricted data it's listed in oneof of the charges. that's nuclear data that's controlled by statute about nuclear weapons information. it used to be restricted to data, now it's formerly restricted data and that is controlled by statute. now there's an argument of the president can't declassify that to control the statute the better argument is the broad

classification of a ready and head of the executive branch yoa probably can't take that action as well so i think the caller's right this information can be plastered on the front page of the papers if in fact the president did declassify it. >> the next caller is pat in new jersey on the republican line. >> caller: hello. i want to go back to the clinton socket case. have you studied the opinion issued by a justice amy jackson she said a president is entitled to these documents if he determines that theyy are personal and she said in her decision that it doesn't matter if they are classified if he calls them personal he's allowed to take them and should this case, should the espionage act even have been used to proceed for the president and vice president less you have a case where you can prove he gave this

stuff to china. thank you. >> guest: i am not sure it is a correct reading of the case but certainly we can discuss the right approach to it. at the end of the day, the question about whether something is a presidential record versus a personal record is a statutory question. there's a definition in the statute and the president can make an assertion but the decision ultimately is made by the courts in litigation like this like the clinton socket case and like this litigation going forward against the president. now, certainly the president's view might be weighed in that analysis as the judge in that case did as the caller correctly lays out and with respect to the classification, look, at the end of the day the president, theac presidential records act doesn't change the rules about how the classified information is handled under various laws including the espionage act. the president and him or her soul can't make the decision to declassify something but if

something remains properly classified then yes the provisions like the act remain and continue to imply on the presidential records act whether the president or the vice president and the interesting thing that's going on here for president trump what's going to happen next is the george's are abroad and there's going to be litigation over whether the personal records, with a presidential records, the lawyers will also file arguments suggesting that these are not in fact presidential records and we will see this issue litigated in thee courts and we will not know a lot more about with the courts think about it going forward and by the way they can go all the way from the district court of florida to the 11th circuit and ultimately for the resolution to the supreme court if it chooses to take those cases. >> let's go to another caller in huntsville alabama. mark is on the independent line. >> a couple of calls. of the leading kind of touched

on a couple of things although a while ago the judge can seeoc these documents and the jury will be able to see all these documents. now if they are classified and you have to see these classified documents wouldn't all these jurors have to be in clearance or top-secret security clearance if they are going to be able to see theseif top-secret document? otherwise, you know, they've met [inaudible] >> host: yeah, let's go ahead. >> guest: the procedures under the procedures act, to give the jury and agreed upon a summary of what's in the documents they don't necessarily get to see the documents earlier when i said

that it can happen but as a general matter what will happen is the lawyers into the judges will look at the document and upagree upon a summary that cane given to the jury so that is typically how these things are handled. one of the callers earlier asked about clearances and while the president declassified them into the caller is right she's allowed to ask that question but the debate is were they declassified data so the court is going to treat them as though they are classified and if they are declassified in the caller is right and ultimately they can be released anywhere and the jury can see them and the like but if someone is going to have to make that call and that is a call to whether the declassification happened or not. it's a combination of stuff did the president to give an order and were they properly declassified. these are all things that will be litigated and that is what makes the case hard to bring in hard for the justice department

to prosecute because not only do they have these never before has the former president been charged with any crime, it's never happened during an election and where the current a sitting president is running for the reelection and is also running this is a very, very challenging scenario. at the justice department to solve is between a legal rock and an impossible place. >> host: speaking of that i want to bring up this concept of gray male and we have a defini can pull up on the screen that comes from a "new it talks about the threat t reveal classified information during a tnd using that threat to kind of force the government handhro drop the case or perhaps create a ple deal to

create classified infmation from becoming public which we havead. can you talk about that concept into do you think that could have an impact on this case? >> it all dependsds on what they choose to do. it's a common thing that takes place in a lot of cases involving classified information because the defendant, the person being charged with the crime, the spy or the person who took the classified information and reviewed it inappropriately or the like. remember people say the president is a spine uppity saying he's a spy. but there's also other things like retaining a document you are not allowed to have, disclosing them to the press or the like and so there's a variety of things in this case the president is charged with willful retention. but look that is what makes this case a challenge, right, is that these charges are hard to bring and improving them up is going to be hard for the justice

department. >> host: back to the phone lines. pete is in northern virginia on the democratic line. >> caller: yes, thank you. the trump family has been getting away with things since thero 1960s, whether it's civil matters or criminal matters for that parts. it started with the father and now it starteded with donnie and continuing with the son-in-law. anyway, my question is what really is going to happen. there's no accountability. nobody goes to jail. the case will probably never see the light ofof day. back in world war ii, there was something called loose lips sink ships. if there was people in the normandy invasion that had a secrets and if they spotted anad

offer or anybody caught them they were demoted were put in jail. we can't't afford, and people nd to wake up if he gets the levers of power again when you are in a show off what do you think is going to happen. >> host: let's let him respond. at that caller kind of echoes what we heard from bill barr, the former attorney general over thee weekend. >> host: he believes the president has made some mistakes clearly and that the charges are warranted based on what i heard and what he said. based on what the caller is saying, he is concerned if the former president got away with prior activities he will continue to get away with it here. the nickname for the president has been teflon bond coming is avoided a number of things people have said.

it's not fair to say he's gotten away with it. that's our system we prefer that evenen the guilty get away witht to protect being prosecuted and being charged. now in the case of president trump, look they brought thean charges, they will try to litigate them. it will take a while. it's not likely to happen. who knows how quickly it will go. they want the trial to go fast so they can resolve it. this incentive for a couple of reasons, one, politically the charges are benefiting him. they play into his narrative about being under persecution, the deep state of being used against him, the fbi being weaponize. he's making those claims now on the outside and this benefits him with a base of those like one of your callers called in and said this is about people coming after trump and so for

the president this helps like in the republican primary and it may even help in the general election and of course if he is elected he made the point that he will continue to run but if he is elected there is he an argument that he can pardon himself potentially. and the argument is also the prosecution he can tell the justice department to drop the charges. that would be unprecedented, but all these things are unprecedented, the charging of a former president, all these things are new. we are going to learn how to do thisyc going forward. >> host: republican line now. rudy iser an ohio. >> caller: yeah. i think donald trump as innocent as far as bringing these fake chargeski against him, deep sta. joe biden, he is the head of the jacobin branch. he lies and says that he neverce sick to these prosecutors on

trump. it was up to joe biden. he lies about it all the time. and i think that donald trump has got a really good case because he was the executive. there's no declassification form to fill out saying that he declassified this box andnd that box. he declassified that however he feels like it. i there's nothing in the constitution to describe the declassification process.st so, how can the government go after him when he was the man like joe biden is the man, illegally going after trump. >> host: all right. we have heard the argument about whether trump could declassify but he also got the concerns by many of the donald trump supporters that biden has weaponize to the department of justice. what is your response?

>> guest: the justice department is run by the attorney general, the special prosecutor. but the special prosecutor does work for the attorney general. it's not an independent counsel like by statute that use to have been back in the day. it expired. a special prosecutor is a career for the attorney general and the attorney general ultimately reports to and can be fired by the president's with the caller has a point. one of the biggest challenges in this is the fact that joe biden is running for the reelection. there might be a strong argument that there was a subrogation that it's not as politically flawed and may still be problematic to bring charges against the former president woparticularly one running for office but if he were running despite it would be a different scenario so in a lot of ways worst case scenario politically and charging political questions about the prosecution the caller raises. a sitting president running for

the reelection, his attorney general, special prosecutor prbringing the charges against a former president unprecedented also running for the reelection. this is fraught with challenges. on the other hand if you believe the president illegally had aor documents, didn't you store them properly and willfully retained them that is a violation of the law everybody else gets prosecutede for that why wouldt you prosecute the president. >> host: let's go to colony in highland california on the independent line. w >> caller: thank you for taking my call. i just want to say all about these boxes, biden took someone he was vice president and mike pence also took some but now that the trump is running all these things about the boxes being taken, if trump wasn't

running, would these calls -- i don't think anything would have surfaced or have been mentioned. i don't think anything would have come out of that. what do you think? now that trump is running they are making a big issue of it but if he wasn't running i don't think these boxes would have been mentioned. >> guest: this is a question a lot of people have raised. what's going to happen with of the biden investigation is he going to be charged as well. what about david petraeus the former director, what about president clinton's former lawyer who tried to sneak

documents out he went to the national archives and took documents out. what about hillary clinton who after the fact was determined to have information on these servers why weren't they prosecuted. these are questions thator at te end of the day there is discussion about the charges you bring into the charges you don't bring so then the question is in this case why was the prosecutorial discretion used to bring the charges at a time when the head of the executive branch is running against the former head of the executive branch?. these are valid questions for people to ask good questions that will be raised almost certainly at the trial. there is an argument that a sitting president can't be a crime orh prosecuted if the only remedy for that is impeachment. that was argued in the department of justice counsel memo and former president trump is reelected he might point to that and he might argue that

even out of office bringing the charges is unprecedented and the case might be staved off until after in which case that's another argument so there's a lot that's going to go on because of the fundamental unique nature of what's happening into the decision by the justice department and the prosecutor to exercise discretion and bring these charges but i will say this we are talking about a lot of documents,y some very sensitive sitting likely unsecured. knowing the facts that they've laid out in the indictment. >> host: professor, george mason university, thank you for joining us this morning. >> guest: thank you for having me.

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