>> WE HAVE ONE SET OF LAWS IN THIS COUNTRY, AND THEY APPLY TO EVERYONE. APPLYING THOSE LAWS, COLLECTING FACTS, THAT'S WHAT DETERMINES THE OUTCOME OF AN INVESTIGATION. NOTHING MORE AND NOTHING LESS. MARIA: AND THAT IS SPECIAL COUNSEL JACK SMITH ON FRIDAY AFTER PRESIDENT TRUMP WAS CHARGED WITH 37 FELONY COUNTS OVER HIS HANDLING OF CLASSIFIED DOCUMENTS. JOINING ME RIGHT NOW WITH LEGAL REACTION ARE FORMER ACTING U.S. ATTORNEY GENERAL MATTHEW WHITAKER AND HARVARD LAW PROFESSOR IF I EMERITUS ALAN DERSHOWITZ. GENTLEMEN, THANKS VERY MUCH FOR BEING HERE. >> THANK YOU. MARIA: ALAN, YOU ARE THE AUTHOR OF THE BOOK "GET TRUMP," AVAILABLE NOW. YOUR REACTION TO THE DOJ GETTING TRUMP. >> WELL, I PREDICTED IT. IF YOU PUT ASIDE ALL YOUR RESOURCES AND DO WHAT JUSTICE JACKSON WARNED ABOUT ABOUT 80 YEARS AGO WHERE HE SAID IT'S A QUESTION OF PICKING THE MAN AND THEN SEARCHING THE LAW BOOKS OR PUTTING INVESTIGATORS TO WORK TO PIN SOME OFFENSE ON, THAT'S WHAT THEY DID. AND JACK SMITH IS WRONG WHEN HE SAID THERE'S ONE SET OF LAWS. HE WAS ASSIGNED ONLY ONE JOB, TO GET TRUMP. SO HERE'S THE LEGAL ISSUE. LET'S ASSUME, LET'S ASSUME HYPOTHETICALLY THAT A DEMOCRAT PROSECUTOR ANNOUNCES IN ADVANCE I'M ONLY GOING TO INVESTIGATE REPUBLICANS. AND THEN THE INVESTIGATION PRODUCES SOME EVIDENCE OF CRIME. IS THAT ACCEPTABLE IN AMERICA? IF THE SAME INVESTIGATION DONE AGAINST DEMOCRATS OR DONE AGAINST SOMEONE ELSE WOULD ALSO HAVE PRODUCED CRIMES. IS IT LEGAL, IS IT JUSTIFIABLE? PUT IT FOR A MOMENT IN THE CONTEXT OF RACE IN THE SOUTH. WHAT IF A SOUTHERN PROSECUTOR IN THE '50s HAD SAID WE'RE ONLY GOING TO LOOK AT BLACK CRIMES AND THEN HE FINDS A CRIME BY A BLACK PERSON WHILE SIMILAR CRIMES ARE NOT BEING PROSECUTED BY WHITE PEOPLE. WOULD THE COUNTS ACCEPT THAT, THAT'S -- THE COURTS ACCEPT THAT, THAT'S THE KEY ISSUE PRESENTED BY THIS INDICTMENT. MARIA: YEAH. I THINK IT'S REALLY IRONIC AND, OBVIOUSLY, HYPOCRITICAL TO SAY THERE'S ONE SET OF LAWS IN THIS COUNTRY AND NO ONE IS ABOVE THE LAW WHEN, IN FACT, WE'VE GOT ALL OF THESE INSTANCES OF HILLARY CLINTON ABOVE THE LAW ARE, JOE BIDEN ABOVE THE LAW, ETC., ETC., JIM COMEY. WHAT ARE YOUR THOUGHTS, MATTHEW I WHITAKER? YOU BOTH READ THE INDICTMENT. GIVE US YOUR SENSE OF THE LEGAL ASPECTS OF THIS INDICTMENT. >> YEAH. SO IT'S A VERY AGGRESSIVE PROSECUTION BY JACK SMITH, AND I'LL POINT OUT THAT HE WAS THE ONE THAT GOT REVERSED 9-0 TO BY THE U.S. SUPREME COURT ON THE VIRGINIA GOVERNOR BOB McDONALD CASE FOR TAKING A VERY AGGRESSIVE POSITION ON A STATUTE. YOU KNOW, THE INTERPLAY BETWEEN THE PRESIDENTIAL RECORDS ACT WHICH SAYS ALL DOCUMENTS ARE COVERED BY THAT ACT AND THE ESPIONAGE ACT WHICH PRECEDED IT AND WAS PASSED IN 1917, ABOUT FOUR MONTHS INTO WORLD WAR I, I THINK, IS GOING TO BE THE MOST IMPORTANT ISSUE THAT THE COURTS ARE GOING TO HAVE TO DECIDE. AND AS I'VE READ BOTH THOSE STATUTES, I'VE THOUGHT ABOUT THE INTERPLAY, I'VE THOUGHT ABOUT ALL THE OTHER CASES THAT HAVE BEEN BROUGHT WITH URN THOSE, I JUST CAN'T SEE WHERE DONALD TRUMP'S POSITION THAT THE PRESIDENTIAL RECORDS ACT IS MORE SPECIFIC AND, THEREFORE, APPLIES TO THIS CASE IS GOING TO PREVAIL AND THAT THIS PROSECUTION IS GOING TO CRUMBLE BASED ON THAT ANALYSIS ONCE IT GETS TO THE SUPREME COURT. >> THERE'S ONLY ONE, THERE'S ONE PROBLEM WITH THAT, AND THAT IS THE TAPE RECORDING IN WHICH DONALD TRUMP FOOLISHLY WAVES A PIECE OF PAPER AND SAYS I COULD HAVE DECLASSIFIED THIS, BUT I DIDN'T. IT'S SECRET. HERE, LOOK AT IT. NOW, MAYBE HE DIDN'T ACTUALLY ALLOW THE PERSON TO READ IT, BUT THAT TAPE RECORDING -- WHICH CAN'T BE CROSSES-EXAMINED -- CROSS-EXAMINED, YOU CAN'T SAY IT'S A FLIP WITNESS OR A WITNESS WHO SHOULDN'T HAVE BEEN ABLE TO TESTIFY, THAT'S A DAMNING PIECE OF EVIDENCE. NOW, THE DEFENSE COULD BE, HEY, I HAD A RIGHT TO HAVE THAT PIECE OF INFORMATION BECAUSE THE RECORDS ACT PERMITS ME TO HAVE IT. BUT THAT'S GOING TO BE A KIND OF WEAK DEFENSE. I THINK THIS IS A MUCH STRONGER INDICTMENT THAN THE BRAGG INDICTMENT, BUT IT'S THE PRODUCT OF TARGETING. AND THE QUESTION IS CAN YOU PROSECUTE SOMEONE WHEN YOU TARGETED THAT PERSON AND WENT THROUGH EVERY HOOP, DOTTED EVERY I, CROSSED EVERY T, GAVE LAWYERS IMMUNITY, VIOLATED THE LAWYER-CLIENT PRIVILEGE IN MANY RESPECTS AND THEN CAME UP WITH SOMETHING. I DON'T KNOW HOW THE COURTS WILL LOOK AT THAT, AND TRUMP'S LUCKY HE GOT THE CASE TRIED IN PALM BEACH COUNTY WHERE HE MIGHT GET A MORE SYMPATHETIC JURY, AND HE GOT A GOOD JUDGE. I WANT TO SAY ONE WORD ABOUT JUDGE. SHE'S GETTING A LOT OF FLAK FOR HAVING RULED THAT THERE SHOULD BE A SPECIAL MONITOR APPOINTED TO REVIEW LAWYER-CLIENT INFORMATION. SHE WAS 100% CORRECT THIS IN THAT RULING -- IN THAT RULING. AND IT WAS A CIVIL LIBERTIES RULING. AND AS A LIBERAL, DEMOCRAT, CIVIL LIBERTARIAN, I APPLAUD HER FOR THAT RULING. WHEN THE GOVERNMENT SEIZES MATERIAL THAT'S LAWYER-CLIENT, IT SHOULD BE LOOKED AT BY A SPECIAL MASTER FIRST. AND THE 11TH CIRCUIT, WITH DUE RESPECT ARE, WAS NOT CORRECT IN REVERSING HER, AND THE MEDIA IS NOT CORRECT IN CONDEMNING HER. FROM EVERYTHING I HEAR, SHE'S A FAIR AND GOOD JUDGE. MARIA: MATTHEW, IS IN THE MOST DAMNING PART OF THIS INDICTMENT, THAT TAPE RECORDING? DO YOU AGREE WITH ALAN IN TERMS OF TRUMP TALKING ABOUT CLASSIFIED INFORMATION, I SAYING, YOU KNOW, IT'S CLASSIFIED BUT I'M GOING TO TALK ABOUT IT, I'M GOING TO TELL YOU ABOUT IT BUT YOU CAN'T DISCUSS IT? >> WELL, RIGHT. BUT THIS IS ONE OF THE THINGS THAT I THINK MOST AMERICANS DON'T LIKE ABOUT LAWYERS, ASK AND THAT IS THIS INDICTMENT ONLY TALKS ABOUT NATIONAL DEFENSE INFORMATION UNDER THE ESPIONAGE ACT, AND THAT'S A SEPARATE CATEGORY UNDER THE STATUTE'S THEN CLASSIFIED INFORMATION THAT'S MARKED CLASSIFIED. YOU KNOW, MY UNDERSTANDING OF THIS DOCUMENT THAT PROFESSOR DERSHOWITZ IS TALKING ABOUT THAT'S SPOKE ABOUT ON THIS TAPE RECORDING WAS NEVER RECOVERED. AND SO THERE IS GOING TO BE A VERY INTERESTING AT TRIAL ARGUNT THAT GOES ON AS TO WHETHER, YOU KNOW, DONALD TRUMP SOMETIMES EXTENDS THE TRUTH A LITTLE BIT, AND THIS MAY BE A CASE WHERE WE DON'T ACTUALLY KNOW WHAT THAT DOCUMENT WAS. AND SINCE THEY DIDN'T RECOVER IT, WE MAY NEVER KNOW WHAT THAT DOCUMENT ACTUALLY WAS. AND THIS IS THE KIND OF STUFF THAT A JURY THAT'S GOING TO HAVE REASON AND COMMON SENSE BUT NO BIAS IF THEY PICK IT RIGHT IS GOING TO HAVE THE DECIDE WHETHER THIS IS THE CASE, TO ALAN'S POINT, YOU KNOW, AFTER ALL OF THE TARGETING OF DONALD TRUMP, IS THIS CASE THAT WE WANT TO CONVICT HIM ON. MARIA: NO, IT'S A GREAT POINT. G . . >> YOU KNOW I'M A LITTLE BIT OF A BLOWHARD, YOU KNOW THAT I SHOW THINGS TO PEOPLE ALL THE TIME, YOU KNOW I DON'T ALWAYS TELL THE TRUTH, SO DON'T ASSUME THAT THE MATERIAL I SHOWED THESE PEOPLE WERE ACTUALLY CLASSIFIEDED. NOW, THERE'S NO EVIDENCE THAT THEY ACTUALLY ALLOWED ANYBODY TO READ THE MATERIAL -- MARIA: AH. >> -- BUT IT WILL BE A FASCINATING TRIAL. IT IS NOT A SLAM DUNK CONVICTION. MARIA: GREAT POINTS, BOTH OF YOU. DID YOU TALK ABOUT THAT LEGAL TWIST THAT YOU WERE REFERRING TO EARLIER, ALAN? >> THE LEGAL TWIST IS, YES, WHAT IF, IN FACT, THERE IS EVIDENCE THAT WOULD BE ENOUGH TO GO TO A JURY BUT THAT EVIDENCE WOULD NEVER HAVE BEEN OBTAINED IF NOT FOR THE ILLEGAL, UNLAWFUL AND UNCONSTITUTIONAL TARGETING ONLY OF ARE REPUBLICANS RATHER THAN DEMOCRATS OR BLACKS RATHER THAN WHITES OR TRUMP OTHER THAN ANYBODY ELSE. THAT'S GOING TO BE A VERY INTERESTING, NOVEL ARGUMENT THAT VERGINGLY THE SUPREME COURT MIGHT ACCEPT. MARIA: WOW. GENTLEMEN, THANK YOU SO MUCH, MATT
