Clay and Buck

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Clay Breaks Down the WSJ Report on What the FBI Seized at Mar-a-Lago

12 Aug 2022

CLAY: We have spent much of the show discussing the Monday raid on Mar-a-Lago, former president Trump’s residence in West Palm Beach, Florida. There is a report out that has come out in the last 20 or 30 minutes or so from the Wall Street Journal which purports to give us some indication of what exactly may have been taken from Mar-a-Lago as a part of this raid. The headline at the Wall Street Journal — and this is right now a Wall Street Journal exclusive report — is, “FBI Recovered 11 Sets of Classified Documents in Trump Search, Inventory Shows.”

That is the main block headline. Subhead is: “Trump Allies Claim Former President Declassified The Documents Recovered From Mar-a-Lago.” So, you can see how this argument may be setting up to take place. Trump — and maybe we can grab the audio from Kash Patel when he was on our show back in May. When this story started Trump had claimed and the people around Trump claimed, “No, no, no, the president declassified all of these documents already.”

So, there may be a multifaceted legal analysis that we need to go through here based on some of this information that is coming out right now. But let me give you the latest information from the Wall Street Journal, And I’m reading directly from the Wall Street Journal. It says that they “removed 11 sets of classified documents. The Federal Bureau of Investigation took around 20 boxes of items,” I’m reading this directly from the Wall Street Journal, “binders of photos, a handwritten note, and the executive grant of clemency for Mr. Trump’s ally, Roger Stone, a list of items removed from the property shows.

“Also included in the list was information about the quote, president of France, Emmanuel Macron, theoretically, this is on a three-page list. The list is contained in a seven-page document that also includes the warrant which was granted by a federal magistrate judge in Florida,” And I’m continuing to read from this story. Again, this is breaking news, Wall Street Journal. “The list includes references to one set of documents marked as “various classified top secret and sensitive compartmented information.”

It also says, “Agents collected four sets of top-secret documents, three sets of secret documents, and three sets of confidential documents. The list didn’t provide any more details about the substance of the documents.” Okay. So, this is what the Wall Street Journal is reporting. I trust… I was talking earlier about how I have very little trust for the Washington Post, the New York Times, MSNBC, CNN. They were all proven to be so egregiously wrong in their coverage of Trump and Russia collusion that I have zero faith in their sources or in their reporting.

That’s me. Maybe some of you out there have a lot of faith in those four organizations. The Wall Street Journal has been better. I think the Wall Street Journal, among newspapers, is by far the best newspaper in the country today. And I make fun of myself still — this is an old man habit that I have. Every morning I get the actual physical newspapers, and I sit down and I pore over the actual physical newspapers. It is something I’ve loved to do my whole life. And I might be the last man in America who is still getting multiple newspapers delivered to his home.

But I get the Wall Street Journal, I get the New York Times, the Washington Post (audio drop) delivered to my home. So, I read it online. I’m a subscriber to virtually everything. Some of you out there are like, “I don’t know why you’d subscribe to the New York Times or the Washington Post.” Well, the answer is, you need to read everything. You can’t just get in an information silo and only read things that you agree with. Having said that, I love the Wall Street Journal, and my favorite thing that I read in any newspaper is the Wall Street Journal’s editorials, both the newspaper itself editorials and all of their guest columnists.

I think those two pages are the best journalism that exists anywhere in the country, in a newspaper context, on a day-to-day basis. Okay. I also run my own media company still, OutKick — well, it’s not mine anymore. Fox bought it, so I’m kind of plugged in all the time. And I also think we do really good work, plug at OutKick.com where you should be going if you’re not going at all. If you like me, you should be going to OutKick.

If you hate me, you should be going to OutKick because there will be tons of things that you’ll find there every single day that will make you hate me even more. And hopefully you’ll share it with all your friends. So, I spend my time all the time in the media. So, I trust the Wall Street Journal reporting. All right, that’s my media analysis. Now, let me be a lawyer here with you. So, what we’re learning, based on that Wall Street Journal reporting, is a really intriguing battle is setting up.

First of all, you’ve heard me talking this week about criminal prosecutions in general. Most cases require two acts in order to find a criminal violation. They require an act — actus rea — and an intent, a mens rea. There are some tiny number of cases that are strict liability where the intent doesn’t matter. You might be saying, well, what kind of case might that be? If you sleep with someone who’s underage, your intent doesn’t really matter; it’s a strict liability offense.

So, if you’re 18 years old and you sleep with… Well, that’s kind of complicated because you’re still young — let’s say you are 30 and you sleep with someone, and you say she showed me a fake ID that said she was 21, and she was actually 17, that’s strict liability. Your intent doesn’t necessarily matter in most cases, all right? Most of the time cases require actus rea and mens rea.

Anything that Donald Trump, in my understanding of the criminal code, would be charged with would require both of those things. So, if I were Trump’s criminal attorney, I would be arguing, he did not have the intent to violate any law when he took these documents to Mar-a-Lago. One, he may not have even known they were coming, right? ‘Cause again, Buck and I have been pointing out it ain’t like Donald Trump spent a lot of time boxing up, I would imagine, things from the White House.

But, two, associated with this, Trump declassified a massive amount of documents. So, I think there are multi-tiered defenses here. One is there’s no intent, right? There was no intent to actually take these documents out of the White House. Two — and this defense is probably going to be a major battleground in the event that there are attempted to bring criminal charges over this.

Two, Trump has a really good defense that he declassified all of these documents. And, in fact, in the next segment I think we’ll have some audio from Kash Patel who will let you hear — he was on the show with us saying all of this is a big mess that isn’t necessary because Trump declassified these documents that are in question here. So, you can’t say that he had top secret documents because the president of the United States, when he is president, has the ability to declassify documents.

So, Trump has… This is me legally kind of taking you through what the arguments are likely to be, two very strong arguments here. Even in the event there are criminal charges that are brought against him. One is, there was no intent to commit a crime here because he didn’t even necessarily know that these documents came with him. And that, therefore, is no mens rea associated with these crimes. And again, I’m assuming these are not strict liability defenses which most crimes are not.

And I walked you through what a strict liability crime might look like. And the second part of this defense is he declassified all these. So, you can’t argue that he violated any law when, as president, as is his authority to do so, he already declassified all these. Now, these are significant arguments, but it’s part and parcel of what feels like — I know to many of you listening to me right now, what it feels like is this is just a continuation of the deep state conspiracy to take down Donald Trump.

And we have seen the Rachel Maddows of the world so many times say, “Oh, he’s dead to rights, caught now,” and they’ve sold that story to their audience time after time after time and then, man, they are like Charlie Brown running right up, if you remember the old Peanuts comic, they’re really gonna kick that football now, and then Lucy pulls it away at the last minute and they take that big kick and they’re sitting there laying on their back, staring up at the sky, thinking to themselves, “How did he get away again?”

Well, one way he gets away is by not committing a crime in the first place, which is what I think is going to be the clear argument here. And this increasingly, to me, is one of many reasons why Merrick Garland shouldn’t be involved in actually prosecuting this case and why I believe the evidence is starting to suggest quite clearly that our Justice Department wildly overreached in making a decision to go after Donald Trump on Monday with this unprecedented raid on Mar-a-Lago.

When we come back, though, I’ll play you that audio from Kash Patel who’s gonna be on with us Monday to discuss this in greater detail but about Trump declassifying so many of these documents that may well be in question now. And this conversation happened way back in May before there was any major discussion even going on surrounding any of this at all.


CLAY: I’m telling you where this story is headed as it pertains to the Mar-a-Lago search. There is going to be a legal battle over whether these were declassified documents or not as part of many different battles that may be fought legally. And I’m here to tell you that the Trump people have been arguing for a long time that Trump declassified a massive amount of documents in terms of his presidency. And the president has the ability to do that.

He has the ability to make that choice so long as he’s president, right? There will be an argument that maybe he tried to it after his president by some people because, although it’s kind of strange to think about, his power to declassify documents he’s involved in ends when his presidency ends. So, he can’t do it after the presidency ends. But Kash Patel is gonna join us Monday, Buck will be back in studio with me, and we will have an interesting conversation with him about this because this was one of his jobs. And before this had emerged as a major controversy like it is now, we had Kash on the show with us in May, and he said this.

PATEL: What he did was on his way out of the White House, he declassified — made available to every American citizen in the world — large volumes of information relating not just to Russiagate, but to national security matters, to the Ukraine impeachment, to his impeachment one, impeachment two.

CLAY: Okay. So that’s a little synopsis of what Kash told us. What I would ask you is this. Does the FBI maybe want to seize these documents because they are afraid of what they prove? I mean, just think about that for a minute. The FBI is arguing, “Oh, there’s major national security issues although play here.” What if there’s also “protect the FBI” issues at play? What if they are worried about Trump having access to these documents because they convey, potentially, complicity involved in the FBI itself? And we don’t know…

We’ve got the report from the Wall Street Journal about exactly what these documents might say. And as you just heard Kash Patel say, there is a strong argument that the Trump people are going to be able to make from a legal perspective that these are declassified documents, in other words, that they are not improperly being held by the president because they were his property and because he had declassified them.

And this is why this is not gonna be some layup, slam-dunk argument from the FBI and the Department of Justice. Now, I want you to watch how this story is conveyed. Most media are not going to mention what we just shared with you, that Trump had declassified a massive amount of documents. They’re just gonna say, oh, there were all these classified documents at Mar-a-Lago. They’re going to accept the truth of the FBI argument. But you, having listened to us, will be smarter than to do that.

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