Donald Trump was indicted on 37 federal counts earlier this month, becoming the first U.S. president to face such charges. The case centers around Trump’s alleged mishandling of classified documents, which were found at his Mar-a-Lago home. And even though entire situation screams of partisan politics, Trump will likely still have to face the court. So, is he in REAL legal danger? Are these charges ACTUALLY serious? Or is the far-left’s case against him as weak as their current commander-in-chief? In this clip, two legal experts — Judicial Watch’s Michael Bekesha and well-known attorney Alan Dershowitz — both join Glenn to give their own, differing opinions on the Trump case...

Transcript

Below is a rush transcript that may contain errors

GLENN: Michael Bekesha is on with us. Judicial Watch senior attorney. Michael, how are you?

MICHAEL: I'm good. Thanks for having me.

GLENN: So let's talk about Trump's case. Alan Dershowitz is coming on in a minute. And he's saying, he thinks he's on trouble on this one.

You're saying the opposite.

So explain the case, that they have against Donald Trump. And where you think the bright spots are.

MICHAEL: Yeah. So basically, the prosecution of Donald Trump, with respect to the documents, all started because the national archives. Somebody at the national archives, thought that maybe President Trump had some records that maybe he shouldn't have taken with him. When he left office.

That's how this started. And in the Wall Street Journal, I wrote a piece, talking about a similar case. That Judicial Watch had against the archives, when it came to President Clinton, and his records.

While he was in office, President Clinton created these audio recordings. And on these audio recordings, had all sorts of information. You know, they had conversations with foreign leaders.

It had discussions about cruise missile attacks to get Osama bin Laden.

It had information that would be classified, had it gone through proper channels. But instead, President Clinton kept these tapes in his sock drawer, and decided to take them with him, when he left office.

GLENN: And did he declassify them before he took them?

MICHAEL: He didn't do anything. According to what we know, he simply took them with him. And Judicial Watch wanted the tapes, when they found out about them. We figured, these are presidential records. These are tapes showing President Clinton being president.

So we sued the national archives for the tapes. And in that case, between 2010 and 2012, the Justice Department, the Obama Justice Department, took the position that whatever President Clinton took with him, were not presidential records. They were personal records. And there's nothing that they could do to get them back.

In 2012, the district court here in -- in DC, agreed with the government.

And the judge in that case said, the soul -- it is the sole responsibility of the president, to decide, what records are personal.

What records are presidential.

And once they are taken out of the White House, there's nothing that the court could do to get them back.

GLENN: Now, is that because -- I'm just trying to play devil's advocate.

Is that because these were tapes that he made. And not top secret documents.

Even though, they may have contained top secret information. But he made the tapes.

MICHAEL: You know, it doesn't -- Glenn, it doesn't really make a difference.

GLENN: Okay.

MICHAEL: Not only -- it wasn't as though President Clinton was pressing record. And going out and buying the tapes.

You know, based on, he was doing this along with a historian. And based on the historian's discussions about it. What he's told the public. The White House operation staff, helped schedule the interviews, helped prepare the tapes, probably went out and purchased the tapes.

And so the only thing that President Clinton did was place the tapes at the end of the session, into a sock drawer. And that's very similar to what president -- documents. If you look at the indictment, paragraph two, says while he was president, Trump placed documents in boxes. Paragraph four says, when President Trump left office, he took those boxes with him.

To me, it's not a sock drawer. But it was boxes. It was the same process. President Trump decided what he wanted to keep. What episode to leave.

And he took what he wanted to keep with him, when he left office.

GLENN: Okay. So help me out on this.

Again, I want to ask tough questions. Because I don't know legally where this is headed.

Except, all the way around, trouble.

Trump's defense, is that his actions were protected under the presidential records act. But that act excludes, and I'm quoting, any documentary materials that are official records of an agency.

So the indictment alleges that he had the information about our nuclear program. Defense. Weapon's capabilities. Potential vulnerabilities.

Of the US and our allies.

Is it -- is it your view that these kinds of documents are protected under the PRA, because of the Bill Clinton.

Or is there more?

MICHAEL: There's more. The fact that the presidential records act talks about agency records is really -- is really a red herring.

Because as the courts -- the DC appellate court here found that really, the focus is, are the records received by the president?

Once the president receives a record from the agency, it's no longer just an agency record. It's now a record received by the president.

So it has a different status. I mean, just imagine. It doesn't make sense, that once a president. The president gets a record from the agency. Is it like a library book, and he has to return it within 21 days.

Absolutely not.

It's his record.

And under law, he can do what he wants with it.

GLENN: Right. And there are exceptions.

No, no, no. It is treated that way, with things like the nuclear code.

He has access to that. But it's in a football, held by the member of a Department of Defense. That's with him all the time.

So there are some records, that do have to be signed in and signed out, right?

MICHAEL: Well, maybe. The question is: What is allowed by the Constitution? And these are questions that have never really been addressed. The president of the United States is commander-in-chief. Everything in the executive branch flows from him. So there is one question on, what limitations can Congress place on the commander-in-chief? But there's also a question of whether or not Congress can mandate or require, another branch of government to do something.

And so there are strong arguments, that if the presidential records act, is what some folks say it is.

Then that would be unconstitutional, because it's placing burdens on the office of the president, that is not allowed.

The other question under the Espionage Act, is authorization.

While -- while someone is in office, while President Trump was in office, he was authorized to maintain that information. To maintain those documents.

If you went into the Oval Office, he could show you that document. Because he had slight authorization to do what he wanted with it.

So the question is: Did he authorize himself by -- to take those records with him when he left?

GLENN: Well, hang on just a second. Because he does have the ability to declassify. But even according to his own words, in the indictment, there's a transcript of a conversation where he holds up a classified document to somebody. And somebody writing a book about him. See, as president, I could have declassified it. Well, now I can't. So this is still a secret.

So he knew that he possessed something secret. He knew that he hadn't chosen to declassify it as president.

And now he's showing it to a member of the press. Not as president.

MICHAEL: Right. And the question there. And I think it's facts that, again, indictments are just one side of every fact.

And I don't know the fact. You don't know the facts. The American public don't know the facts.

But the question is, whatever document he had in his hand, to how did he get into his hand?

And I think we need what we need to do and what the public needs to wait. Is to wait until all the facts come out.

To see whether or not he was, in fact, authorized to still have that record. And maybe the facts will show that he wasn't.

You know, I keep thinking, if President Trump, after he had left office, somehow got access to records, he must have access to, when he was president. That would be where a problem may lie.

GLENN: Right.

MICHAEL: But if the records were in his possession while he was this office. And he took affirmative steps to maintain those records when he left, there are real constitutional legal questions about whether or not that was authorized.

GLENN: Okay. Let me give you a statement from Bill Barr.

And I'm sorry. I'm just playing devil's advocate. Both sides. I will hit Alan with the same thing.

Both sides hard. Because I want to ask the questions. That people aren't asking. But I think the American people are asking.

There's a statement from -- not one of my favorite people in the world.

A former attorney general Bill Barr. And I want to give you a chance to respond to it.

He said, quote, I think this counts under the Espionage Act, that he willfully retained those documents are solid counts. They gave him every opportunity to return those documents.

They acted with restraint. They acted very deferential with him. And they were very patient. They talked to him for almost a year to try to get those documents. And he jerked them around.

They finally went to a subpoena. And what did he do according to the government. He lied. And obstructed that subpoena.

And when they did a search, they found a lot more documents.

There are official records. They're not his personal records. Battle plans for an attack on another country. Defense Department documents about our capabilities. In no universe, Donald J. Trump, do these belong. Or are personal documents of Donald J. Trump.

MICHAEL: There's a lot there.

To begin with, the end part. The Obama Justice Department, would disagree. So would the federal court, that concluded, that once a president leaves office, it is assumed that the president chose to take those records. Had designated them as personal.

And that there was nothing that could be done about it. And so just because former Attorney General Barr doesn't think those records should have been taken, doesn't mean that lawfully, they couldn't have been taken.

The other interesting part is Attorney General Barr seems to focus a lot on the fact that President Trump may have not -- all the records that he had been asked to turn over.

Well, under the Espionage Act, that's irrelevant. So even if he had returned those records. If the espionage is what everybody thinks it is, then President Trump could have still been charged under the Espionage Act.

GLENN: Okay.

MICHAEL: So the idea that it's somehow different because he had the records, really is just showing an emphasis that he's displeased or unhappy with President Trump's actions and has nothing to do with what the law actually is.

GLENN: When Trump was indicted last week, I was on vacation. And I was not paying attention to the news.

And I mentioned it on Monday, when I came back. But I told you, I wanted to really get the best minds on both sides.

And talk to them. And because there's -- there's people who like -- I should say. Have defended Trump.

And may like Trump. But one of those who I think is very credible on this. Because he has defended Trump time and time and time again. Written books about it

Now says, this is real trouble. And his name is Alan Dershowitz.

So I just had, this is no big deal, we can win this.

And he says, there's real trouble. So let's get the real trouble side now from Alan Dershowitz. Hi, Alan. How are you?

ALAN: Hey, how are you? There's real trouble. But that doesn't mean that it cannot be won. This is a very, very, very serious charge. You know, in my book, Get Trump, I predicted all of this. I also predicted the indictment of Hunter Biden on minimal charges in order to nonsense the -- the claim that there's equal justice. But the problem with Donald Trump is illustrated by that plaque, that some people have in their homes, with the stuffed fish on it, that says, if I had only kept my mouth shut, I would still be swimming. All of Trump's problems comes from his own statements. What he said, the most serious one was what he said to a writer, who was writing a book on Meadows, in which he allegedly showed him some classified material. He says, it wasn't. It was just newspapers.

GLENN: Right.

ALAN: You hear it, apparently, rustling.

And I don't know what the facts are. But -- and saying, I could have declassified this, but I didn't. So it's still secret.

That seems like the government was using it as an admission, that he didn't declassify anything. If he hadn't said that, his claim of declassification would be very strong. Then he spoke to his lawyers. Now, I don't think those statements should ever be admissible. Those are the lawyer/client privilege statements. I would be fighting like hell to keep those out. Because I can't talk to my clients anymore, as a result of that ruling.

GLENN: Thank you. So wait. Wait.

I watched enough Perry Mason. And I know that's not actual law.

But if you break the bond of attorney-client privilege, you -- sometimes you're working with a dummy like me. And I'm like, I don't know. What happens if we don't give it to them?

Well, I'm asking for your legal opinion.

ALAN: What if you tell it to a priest? What if you say to a priest, you know, I know this would be a sin. But I'm thinking of perhaps of not giving it over. And the priest says, no. You have to give it over. Or you talk to your doctor. All of these privileges are now at risk as a result of this terrible position.

Made by judges who handpicked by the special prosecutor. Remember the case is in Florida. But this special prosecutor brought these legal motions to compel the lawyers to speak in DC, where he knew he would get him on federal court.

So he was judge shopping. Then he got his favorable rulings. And then he takes the case to Florida.

GLENN: Wow.

ALAN: And I would hope the Florida court would look at that in a very, very critical light because, as I say, I have to tell my clients now. Don't ask me any questions. Because I may have to disclose them. I'm not taking notes anymore with clients. I'm not turning over anything that my clients tell me in confidence, just because some court says -- you know, and then there's this absurd thing of a tainting. Where if you say something that is lawyer-client privilege, the government says, all right. We'll pick some government lawyers, who have lunch every day with the prosecutors, and stand next to them in a urinal every day, and we will allow them to look at the lawyer/client privilege material. Read them. Oh, they promised they won't.

GLENN: No, I don't say anything to the prosecution.

That's what's happening now. And just had the courage to have a decision saying, no. She was going to appoint an independent judge. A former judge. A great judge in New York, to look over the lawyer, client classified materials. The court said, no, no, no.

No, that's special treatment for Trump. No, that's what everybody should get.

GLENN: So the crime -- the crime fraud exception to attorney/client privilege. You don't buy into that here?

ALAN: I buy into it in general, but I have to tell you, I have done 250 cases involving criminal defendants.

I would say in half of them, the conversation included some reference to maybe if I went to Brazil, I couldn't get caught. No, I don't that. You'll get caught. But the client raises all kinds of questions. That's why it's confidential.

GLENN: Correct.

ALAN: To allow the client to say anything they want.

GLENN: Correct. Isn't it the same reason why we have the presidential confidentiality? When -- when you're talking to the president in the Oval and you're brainstorming, people don't want to say things that are maybe unpopular. Or say things that are maybe crazy in hindsight. But you're brainstorming. I don't want that on the record. I want to have a private conversation.

If you can't have that, you don't really have anything.

ALAN: No. I agree you with. What I taught at Harvard for 50 years. I would say to my students, what you're saying is confidential. And you can be as speculative as you want.

You can say any wild thing about criminal law. You can make statements that you would be ashamed to have made public.

This is for a Socratic discussion. And Socratic discussions is anything goes.

GLENN: The indictment doesn't ever mention the Presidential Records Act.

ALAN: Or espionage. Or the word espionage.

That's being thrown around all over the place.

Yeah.

GLENN: So where is -- because I have gathered from what I've read from you, that this is a serious charge. And he will have a hard time. Why?

It sounds like there's a lot of other legal issues to really go after.

ALAN: There are. That's why it's not a slam-dunk case. That's why the case should never have been brought. Forget about former president.

You don't bring against the man who is running to become the president against the incumbent, head of your party, unless you have a slam-dunk case. Now, I think they have a case.

But it's not a slam-dunk case. There are these legal issues, involving lawyer-client privilege. The government doesn't have the piece of paper that was waved, allegedly in front of the writers. So they have a hard time proving that. They have to deal with the classification issue. It's a winnable case. But it's also a losable case. Whereas the case in New York, is absurd.

The case in New York, the prosecutor should be disciplined for bringing it. In 60 years of this, doing this business, I've never seen a weaker indictment than New York. I cannot say that about the Florida case.

That doesn't mean, it's going to end up with Trump being convicted. Particularly, since the trial is in a fair district, unlike Manhattan.

I love Manhattan. I live in Manhattan. You can't get a fair trial for Donald Trump in Manhattan. Maybe you can in Palm Beach County.

GLENN: Okay. So let me -- let me take you through the crazy scenario, that he goes to trial. In the middle of an election season.

He's convicted, sentenced. What does this look like?

We've never -- we didn't do this with Nixon. We've never did this before. What does this look like?

ALAN: Nobody knows what it looks like. The only thing we know for sure, is he can run for president even if he's president. Eugene V. Debs, Curly became mayor of Boston, while he was in prison. The Constitution specifies only several criteria. And the Constitution means what it says. So you can run.

You can even serve as president. That's not going to happen. The judge will not sentence him to prison. These crimes -- these crimes did not endanger national security. They're not espionage. The media is throwing around the term espionage. The first thing that has to happen, is this trial has to be on television. We, the American people do not trust the media to tell us the truth about the trial. If you watch MSNBC and CNN and read the New York Times, you're going to think it's an open-and-shut case.

If you see other networks, you will see it's an open-and-shut case of innocence. You know, I was a lawyer in the O.J. Simpson case. There was a poll that showed that people who actually watched the trial on television, were not surprised at the verdict.

But people who read about it in the newspapers, was shocked beyond belief.

So we have to be able to see this trial. And the word espionage should not be allowed to be used in the trial by the prosecutor. And if he does use it, there should be a mistrial.

GLENN: Why is this espionage -- where did they even get that?

ALAN: It's the name of the statute. It's as if Congress passed the statute entitled The Child Molestation and Inside and Trading Act.

And they indict somebody for insider trading.

And they go in front of the jury and say, this man has been indicted under the Child Molestation Act.

GLENN: Wow.

ALAN: It's the name of the statute. It was passed in 1917 to go after war resisters, mostly religious people who had a conscientious objection about going to the First World War. And Woodrow Wilson passed the Espionage Act, which had very little to do with espionage. It had mostly to do with dissent and whistle-blowing. And all of the whistle-blowers have been indicted. Under the Espionage Act.

I defended many anti-war protesters, and other dissenters under the Espionage Act. And the government loves to use the word espionage. But there's no allegation here, that led to foreign enemies