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host: we are here with the assistant president of law jamil jaffer from george mason university. we will be talking about the federal indictment of former president donald trump and the legal issue that came up because the case involved classified documents. let's start there. what do we know about what kind of documents former president trump is accused of mishandling? we are -- guest: we know there are 102 documents found by the fbi after the president and his lawyers certified all documents have been returned to the national archives. only 32 of the 102 documents have been charged in the indictments but 10 of those documents are classified at --

above top secret. top secret requires if the information is released, it can cause major harm to the united states, extraordinarily grave harm. above top secret is going part -- compartment information. that is 10 of those documents of the 31 and another eight are called special access programs. those special access programs are federally protected compartments that are more sensitive and go to a specific human source, a highly technical, highly confidential question, capability or the like and they are so sensitive, even the names of the compartment themselves are redacted. 18 of 31 are highly sensitive, above the top secret level. host: there have been a lot of conversation about, and i want

to go ahead and set the scene here. a lot of people say he is the president. they gave it to him. if you wanted to keep them, he can. do you agree with that, why or why not? guest: unfortunately, that is not the law. as a president, when he is in office, he has full authority to classify and declassify information. had he declassified the documents as president, they are not classified. there are two questions, can he keep them or not keep them and are they classified or not classified? he claimed he declassified them by keeping them. that is not the way --an write it down. though one way is to exercise a former declassification document. the former president himself

declassified an highly classified image by taking his iphone and tweeting it out. other than thinking about it, there is no evidence that we are aware of that he has declassify the documents and there is a question of keeping documents. if something is a presidential record that reflects his activities in office, it is required that they turn it over to the national archives. agency records like the last five documents issued here, if he did not take notes on them, go back to the agency in deal with them -- and they deal with them. does he get to take away and do what he wants. if there is a dispute of presidential record or personal record. it is hard for the president to make arguments that these

documents were official government documents and classified and some above top secret level with his nose on them and at minimum, those are -- presidential business. host: we are talking about former president trump's indictment in the way that classified documents are related to this case. you can call in with your comments or questions for professor jaffer, an assistant professor of law at george mason university. you can call in now. republicans, (202) 748-8001. democrats, (202) 748-8000. independents, (202) 748-8002. you can send us a text message at (202) 748-8003. include your name and where you live if you send us a text. while we are waiting to receive

some of your calls, you talked about the degree of different classifications. we know if there are classified documents that were in former president trump's possession that are not included in the indictment that were perhaps too sensitive to be exposed? guest: it is possible. we don't know the details of what other documents were there and at a general level, there were certain level of documents classified at the top secret level. we know there are number of documents, a little over 100. 31 charged in the indictment and we don't know the details better in the 70's -- 70's that were not -- 70 or so that were not in the indictment. host: how are classified and nonclassified information treated differently in child. guest: there is a law passed by congress that allows the

government to introduce classified material to the judge and allows the defense to look at it as well and allows the jury to look at it if there is a jury trial in order to protect it without being exposed to the public. often -- and there's every reason to think these documents will likely remain classified and they introduce it very -- to the jury and defense. host: henry in nevada, missouri on the democratic line. you are on. caller: hello, what was the question again? i did not get the question. host: we are talking about trumps indictment and -- in the involvement of classified documents. do you have a question or comment? caller: yes, i would like to say

-- it is too bad those documents were in his possession and i am assuming that biting --biden is under investigation for his handling of documents as well. my opinion on that is those documents like that especially in a location like mar-a-lago where they found them at, they shouldn't be able to get that far but they did. what they should do next is fine -- find out if trump will have further input in releasing any information from that and if he has not or they cannot prove he was or has, and at the time he was the president, before he had the documents, -- he had no clearance in having them. it is a bit mess. -- a big mess. it also seems like maybe

something is not all there in the picture. they read there is something we don't know that will come out -- maybe there is something we don't know that will come out later. host: let's let professor jaffer respond to that. guest: the president is -- -- the former president is innocent until proven guilty so the justice department bears the burden of proof to prove that he had these documents and have them unlawfully -- had them unlawfully and willfully obtain them -- retain them and failed to turn them over. there are other charges that were brought against him, obstruction of justice. destroying or moving records and also conspiracy and making false space -- statements. all those relate to what some may call a cover up, allegedly a

cover up. an attempt from the president to not only hide the documents from the fbi when they came to do their search but also their attorneys who did the search and certified to the national archives and the fbi that they turned them over. there is a lot there for the government to prove in the president is innocent until proven guilty. this is in the first time we had a senior official identify classified documents. former vice president mike pence turn documents over. president biden had a number of documents from his time as the vice president that were at his home in the d.c. area. we will see what happens with those. secretary of state hillary clinton had classified

information on a classified email server. there are a lot of senior officials who have challenges with classified documents. why is president trump in -- been charged here and not others? the had the documents. he asked -- he was asked for them back and did not return them and if the justice department's facts are improvement, he avoided turning them over and his lawyers perhaps said they were not here or lost them or whenever they're in the first place. host: our next caller is diana in florida, republican line. caller: 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 he -- we want him back. we will vote for him again and this business of documents here and documents there, biden

wasn't even supposed to have any documents. he was vice president, not president. and trump looks like, that is all they want to do is go after trump. first it was russia and then it was other things and president trump didn't pack his own documents. all that stuff was packed for him. he probably was not even aware of what was in every one of those boxes. they were all packed for him. all this is is a continuation of this witchhunt and we know it. i think it is disgraceful that the justice department, the fbi, 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: diana raises a number of points that americans are concerned about, the idea that

the former president is under investigation in a variety of places. these charges, january 6 insurrection and what happened in georgia and the efforts to identify more votes in georgia. there are multiple investigations and the president has made the point that this is part of a larger effort, a use of government resources to pursue him and those around him, which he argued during his time in office, the russian investigation were part of that. the challenge is looking to one side of the new york state and georgia charges, we look at the federal cases from january 6. you have evidence here that the government claims it has and has the burden of proof. that the president took these documents, he didn't have a clearance. he willfully retained them and -- and that he willingly

retained the. two diamines -- to diana's point, maybe he didn't know. there are a lot of things to suggest, at least as a government proves them, he may have known and talked to his lawyer saying maybe the documents were never here. saying to one of his aides, movies boxes from place a to place b. one wonders what that is about but the government has to prove that that demonstrates knowledge, willful retention of these documents and if he can, there is an uphill battle but there are a lot of people -- a lot of concerns that people in the country have about what is going on with the president and this is all taking place in a election cycle where the current president, for whom the attorney general works and special prosecutor works, running for

reelection and former president trump also running for election and best -- and that makes this prosecution brought for political issues --fraught for political issues. host: we have any indication yet what may be former president trump's defense. will it be i didn't know or will it be beazer my documents to keep? those seem like -- you can't table -- you can't say both. guest: we know what the president said publicly in the things he suggested and despite -- this might not be his defense but it appears to be some combination of i had a right to these documents. i am allowed to take them and negotiate with the national archives on whether i get them back or not, i declassify these document by thinking about them. i have a standing order to declassify. if you can bring witnesses, that

may be a defense. and none of this really matters, this is a conspiracy against me. folks are coming after me and this is a weaponized use of justice from the fbi. those are some of the defenses he laid out. declassification, authority to keep them and the larger witchhunt narrative taking place. host: jane is coming from hamburg, new york. independent line. guest: -- caller: caller: good morning. i find myself agreeing with the last lady. i have a question because this is legal. the declassification, when trump was president and he had possession of those boxes and he ordered these boxes to be sent to mar-a-lago as the president,

doesn't that imply that those are considered presidential records and we have to go back to the president records act and find out if that was in court and -- where the judges are very adamant about what are considered personal records. i don't know about this moving boxes. are they claiming he moved boxes out of mar-a-lago or around mar-a-lago and is in all of that under secret service protection? other than that, have a good morning. guest: these are great questions. as to the question about who are protecting the record and where they are removed, the indictment charges is a movement of documents within mar-a-lago from place a to place b and there are discussions about some of the documents going to a golf course in bedminster where the president is alleged to have shown documents in a recorded

conversation to folks were not allowed to see them. there are questions about documents that went to bed ms. -- bedminster. the main point about the documents moved by his aide, being moved the -- in mar-a-lago. the other question about the documents being guarded by the secret service. it is true the president have secret service protection but they are not there to protect the documents. remember the way beast documents are stormed normally. they are stored in a facility. it is a lot facility that is shelling around so singles can get in and out. it has safes and combination locks. when it is closed at night, it is closed with a combination lock with an alarm and a response after a certain amount of minutes and it is a specific

circumstance where you maintain the documents. if you take the documents out of them, you have to put them in two separate individually marked departments. and walk out and you have to have a courier caller -- card that says you are authorized to carry this information. no procedures were in place at mar-a-lago and eight that ballroom -- in that ballroom. the images raise a question, if they were classified documents, where they secured appropriately and that is the challenge here that the president will have defending himself. as to the first question, this question about did the president make them personal records by sending them to mar-a-lago or did he declassify them saying i will send them to the white house, was that like sending

them on twitter, that is a constructive conversation? the president has authority when he is president to declassify. did he make a declassification decision? it is hard to know and it is not laid out other than to say, i can do it by thinking about it. host: the caller mentioned bill clinton and there is 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 that former president made earlier this month, referencing the so-called bill clinton sock drawer case and denouncing his indictment and this was at a campaign event in columbus, georgia. [video clip] >> they don't mention the

defining lawsuit that was brought against bill clinton and it was lost against the government, the famous socks case that says he can keep his documents. these are minor details and that is the ruling law. when i left office and i was moving to florida, boxes were openly sipping -- sitting on the white house. this isn't someone smuggling boxes out, pictures of them sitting with people from gsa and other people waiting to put them on a truck but they were sitting outside of the white house waiting for a truck to come and the truck was there for a long time and they brought it to florida and they make it sound like it -- is that -- if that is a spy operation or something bad, we did a poor job. first things you learn, don't

put them on the sidewalk in front of the white house. as a former president, we were negotiating with the national archives and records administration just as any other president has done and the next thing i knew, mar-a-lago was rated --raided by gun toting fbi agents. we were negotiating. host: those were comments from former president trump not too long ago, comments he made in a rally around georgia. he referenced what is known as the presidential records act but i put out an article from the associated press. since legal efforts -- it says legal experts -- while the 2012 legal case involving clinton isn't a sound comparison to trump's current legal predicament.

i will bring it to you, president john for --jaffer. tell us about this sock drawer case from bill clinton. does it compare to the case president trump faces? guest: there are important similarities and differences. in the case of president clinton, he made these recordings about the time in office and he is talking about the official business he engaged in. he wanted to write a book after the fact. he stored these cassette tapes, these recordings in a sock drawer. the question was, are these tape recordings presidential records are they personal records? the presidential records act, as you pointed out, it is not mentioned in the indictment. everett presents three categories. there are records about the affect -- presidential time in

office, personal records, things that are his, and federal agency records, documents federal agencies create. the two candidates, these are for the agency and they go to the national archives. the question is are these documents like the clinton sock drawer case, are they personal records? 's like president clinton -- i president clinton's -- like president clinton' case -- the best record he can make is that they are my personal recollections of them and then they are mine. what are the notes about? you might argue it was a purely personal note. i love melania.