January 26th, 2023

January 26th, 2023

On Thursday’s Mark Levin Show, the USA Today and other media outlets are lying about a Vice President’s position on declassification. It is the President, not the Vice President, who holds the constitutional authority as commander in chief to classify or declassify documents. Biden has no argument to make, as Vice President, about his classified document scandal, and is instead saying he was in the dark about documents winding up at his house. We know for a fact that Biden did not have the authority to declassify the materials he took, and none of the legal analysts have pointed out that Biden stole the documents – they weren’t misplaced and someone didn’t take them for him. The National Archives won’t give the Republican majority in the House of Representatives anything, and the FBI will make them fight for every document – this is a corrupt administration. House Republicans need to jump into these documents now.  Also, Democrats now want asylum for illegal immigrants as a right, and challenging that idea gets you labeled as a racist and replacement conspiracy theorist by people like Sen. Cory Booker. No country can survive the level of migration that we’re seeing – over 5 million people in 2 years not even seeking asylum, but just to get into this country. We have handed the southern border over to the drug cartels, and people on both sides of the border are being hurt by it. What’s happening right now can be stopped, but it cannot be reversed. Later, Mark speaks with Professor John Eastman about his response to the California Bar investigation for representing President Donald Trump.

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Photo by Nathan Posner/Anadolu Agency

The podcast for this show can be streamed or downloaded from the Audio Rewind page.

Rough transcript of Hour 1

Hour 1 Segment 1

Today is one of those days, ladies and gentlemen. Where we go to constitutional class, where we go to law school together. On a couple of areas. Declassification. And also contempt. What do you do if you Republicans in the House? And you seek to hold somebody in contempt because they will not cooperate. And that person might be the attorney general of the United States who has the power to determine. Whether U.S. attorney will prosecute or not. Interesting question, isn’t it, ladies and gentlemen? And I try to make this very compelling to you. So you will not hear much repetition from prior shows or prior days from other shows. We’ve been right about. I think everything the National Guard, National Guard, the National Archives is now telling the former presidents and vice presidents. What are they telling them to do? Mr. Bitzer? What I’ve been saying. They’ve told them. Now you need to do searches. Fresh searches of your homes, of your officers, of your libraries and so forth. Because you have an ongoing obligation and we want to make sure he didn’t keep some documents behind. I mean, I said the question that needs to be asked is not. What happened on the day that they left and the archives collected this site or the other. But have you looked for any classified documents lately? Because in the case of Biden, in the case of Pence, they both had said they didn’t have them. And yet. When somebody started to look, they did have them. But we’ll get into that later. The National Archives, another issue where USA Today, in my view, was lying and other media outlets are lying. And people are regurgitating what they. What they say is. That a president and a vice president stayed in the same position when it comes to declassification. I be getting this question over and over again, especially since a phony USA Today article appeared, and I want you to stick with me. And I want to give kudos to James Freeman of The Wall Street Journal. James Freeman. I’ve known his parents for 40 years. It’s not that I’m in touch with them all the time. For 40 years, the first position I held in the Reagan administration. I went into a building. I was 22, 23 years old. And there was James father, Neil. I’m assuming it’s the same family. And he’s got it exactly right. And he says a popular media defense of the president collapses. He’s completely naked, they say. One nice thing about being President Joe Biden, is that sometimes media outlets will make arguments on your behalf that you’re not even willing to attempt on your own. Witness journalists responding to the news of government secrets casually strewn around Biden’s property. Some have been suggesting Biden received significant authority over classified documents while serving as vice president during the Obama administration. There are many reasons why Mr. Biden doesn’t seem to find this argument as compelling as his friends in the media do. Now, the latest discovery inside his Delaware home seemed to confirm that the argument is irrelevant. They also suggest a much greater legal danger for this president. The discovery of classified records from Mr. Biden’s time in the Senate means he can claim the protection of an Obama order, the Presidential Records Act, or any other type of executive privilege. One can understand why media folk did not want to concede the possibility that Donald Trump might have a greater claim to the documents at Mar a Lago than Joe Biden does to the documents found in his private office, home and garage. And by the way, has anyone looked under the seats of the Amtrak Northeast Regional? Last week, this column noted it makes sense that Mr. Biden and his lawyers are not trying to claim that as a former vice president, he enjoyed some authority to keep such documents. It is the president and I’ve been saying this for months since August. It is the president, not the vice president, who holds all the constitutional authority as commander in chief and therefore authority over the classification system for national security secrets. Presumably, if either President Obama or President Trump had ordered the documents to be stored in various Biden locales, this fact would have come to light by now. Moreover, the vice president is explicitly expected from the section of the Presidential Records Act entitled Constitutionally based Privileged Against Disclosure. Former presidents are thus empowered to contest the determination of the National Archives in a way that former vice presidents are not. And that’s exactly what Donald Trump was doing when they tried to set him up. With obstruction. And I’ve said it over and over and over again to the point where many of you are probably tired of it, but I have to get it out. In short, Mr. Biden has no argument to make, and he’s not making one. Rather, he’s claiming to have been left completely in the dark about how classified documents from secure government facilities ended up in his office, his home and his garage. Since then, PolitiFact has joined in the chorus touting Mr. Biden’s vice presidential privileges. Did Biden have the power to declassify documents while he was vice president? They say the short answer is yes. Other another group of flat out liars. The official documents that govern classification and declassification are from presidential executive orders. And in 2009, Obama issued executive order 13 5 to 6. The classified National Security Information Section one three. That order gives the President and vice President original classification authority, which means authority to initiate classifying information. Readers are bound to stumble on that last sentence for a few reasons. The president already held, excuse me, robust constitutional authority, and he didn’t need to issue an executive order authorizing himself to exercise power over the classification system. The passage also may seem to suggest the vice president was given the same authority as the president. But of course, the United States government has a unitary executive, not a binary one. One executive. The president. That’s it. And reading the Obama Executive Order one, Fine said Mr. Biden was given the same authority over classified documents as various other senior government officials. Not some special Obama bequeathed superpower. In other words, needs to be treated as no bigger than or better than than a cabinet secretary. Also, I’ve been saying for months. PolitiFact, by the way, is some left wing operation and it continues its story of the Obama executive order. Section 31 says information shall be declassified, declassified or downgraded by, among others, the official who authorized the original classification. If that official is still serving in the same position that has original classification authority. This means that because Biden had original classification authority as vice president, he also had authority to declassify information that he had classified in the first place. Exactly what I said. That’s not classification or declassification at will. At will. We don’t know who initiated the classifications on the documents found Biden’s home and office. But we do know that vice presidents are usually consumers, not producers of classified reports. And therefore it’s highly unlikely he had the authority to declassify all the material found in his various private spaces. If the documents contain information on military capabilities or methods and sources of intelligence. Does anyone think that Mr. Biden was in the field collecting and then classifying such secrets? And if he actually did have the authority to declassify all these documents and he followed the declassification process dictated by the Obama rules, there would be nothing to investigate. And speaking of the 2009 executive order, it seems that just like Biden, Mike Pence also seemed to think he was imbued with vice presidential superpowers by Barack Obama. And I would add, these vice presidential superpowers, as I said repeatedly, including yesterday, president does not have the authority. To delegate core constitutional powers to anybody. For instance, as I said, he can’t say, you know what, I’m tired of being commander in chief. I delegate those powers to the secretary of agriculture. Or. You know what? I’m kind of busy here dealing with the economy and the environment. For now on, the attorney general will make the nominations to the Supreme Court. Can’t do that either. Can’t do that either. This brings us to the latest Biden Revolution revelation, he says. The Journal’s Andrew Ross Tosha reports on Mr. Biden’s personal lawyer, Bob Bauer, announced that Justice Department search of the president’s home in Wilmington prompted authorities to take possession of six additional items with classified markings where the initial classified documents appear to be from Biden’s time as vice president. Mr. Bauer said last Saturday that the latest items collected by federal agents included items from Mr. Mr. Biden’s tenure in the Senate. Which, of course, doesn’t affect any of the executive. Protections and privileges. And in fact, I would say, what are they waiting for? They need to get to the university and get their hands on those documents. Time to clarify who exactly is expected to follow the law and protect America’s secrets. So James Freeman. Is, to my knowledge, the single writer, whether opinion writer or journalist. To understand this. You’ve understood it for. What is it now, Mr. Producer? Six or seven months. You’ve understood it since last summer. You’ve understood it since I went on first HANNITY show, my own Sunday show. Maybe it was even July. And explain this in exquisite detail. The media are filled with frauds. Now. And so these legal analysts and the phony professors. Next subject, James Comer has said on numerous programs. That the Department of Justice is not forthcoming. At the White House is not forthcoming, that the National Archives will not produce information and missed its deadlines. Make no mistake. This is an investigation. Of the executive branch. This is an investigation of the Biden administration. This is an investigation of a corrupt FBI, a corrupt DOJ, a corrupt National archives and a corrupt president. Now, what if you do have these corrupt entities, circle the wagons and say, Sorry, we have an investigative exception here and. We have executive privilege. We were busy, we’ll try and work with you, but blah, blah, blah. What do you do when they’re covering up? Well, let’s talk about that. I’ll be right back.

Hour 1 Segment 2

Only a few minutes. Here, let me set this up. National Archives, according Axios, didn’t meet the Tuesday deadline to turn over request materials to the House Committee on Oversight. That’s chaired by James Colmer. National Archives has not produced the requested documents to the committee at this time. Jamie Combs request still stance anticipates moving forward with a transcribed interview with Nara’s General counsel soon. The archives didn’t immediately return Axios request for comment, but has said it needs to consult with the Department of Justice before sharing information. Of course you know how that works. So you have a lot more than an iron triangle, an iron octagon of executive branch cover up taking place now. And you have a separation of powers issue under Article one. We know what’s in Article one and we know what’s in Article two, and we know it’s an Article three and we know what’s in Article five. Unlike a judicial nominee by the Biden administration, maybe we’ll have time to get into that later. All that said. The problem is if Congress doesn’t enforce. Its implied powers at oversight implied because they are and the court has recognized this. Powers that that are linked to legislative powers if they’re legitimate oversight activities, unlike getting Trump’s taxes in order to leak them. Then Congress has no power. Then Congress is denuding itself. In order to make spending decisions and taxing decisions and barring decisions which come out of the House are supposed to. Unless Mitch McConnell and Schumer are doing their thing in the Senate. They need to know how various aspects of the government are functioning. And the bureaucracy sits in the executive branch, not in the legislative branch. Now if the executive branch is under investigation. Four ubiquitous acts of illegality are partisan politics a politics? And the executive branch says no. I want you to think about this. What if Ronald Reagan had said no during the Iran situation? What if Nixon had said no during the Watergate situation? We have a lot of situations that would never have been investigated. The Biden administration is the least. Transparent administration in modern American history, period, just the way it is. So what can Congress do? Well, believe it or not, Congress has a few options. I touched on them. Sunday night. I know Life, Liberty and Levin, but there’s others and I won’t expand on them. In part two, obviously to inform you the American people, but also informed the Republicans on Capitol Hill. Right here behind the mike.

Hour 1 Segment 3

All right. I’m hearing voices. Anyway, I’d mention to you that there’s no way the prior officials had had had their homes or officers searched. I was challenged by somebody who said, I don’t know that. How do you know that? Because they would have said so. And this this stuff about the media asking in in these ex-presidents and vice presidents saying, you know, when we left, everything was turned over and but nobody asked you that. The question is whether you have today, but the proper question is any classified information and has anybody searched for it? That’s the question. And the answer is, no, they didn’t. Now, how do we know that? Because the archives has now said that all of these individuals need to go back and look, that it’s an ongoing obligation. Now, the National Archives is. Is a stickler for following the law, isn’t it? Except it doesn’t. Joe Biden purloined some of Barack Obama’s documents. He was there prior to the executive branch. He was the president. So even the statement that his propaganda has put out was inaccurate, that the archives took all of it. We know the archives hasn’t properly tracking classified information. How do we know it? Because it’s everywhere. That’s how we know. We know Joe Biden, as a matter of fact, did not have the authority to declassify what he took. We know for a fact that the material he took from the Senate. Uh, they have a skiff. The senator say that there’s no way you can do it. There is one way you can do it. The Sandy burglar way. Shove it down your pants. Stick it in your jacket. You know. So he he knew what he was doing when he took it out of the Senate to. He stole the documents and noticed none of the legal analysts and none of the morons on CNN and MSNBC. I don’t think any news host has pointed out. Hello. He stole those documents. Those weren’t misplaced. Somebody didn’t do that for him. Well, look at this. We have a fall guy. Don’t worry. We’ll take care of your payments. We’ve already talked to Hunter. No. Joe had to do it himself. That’s what happened. Now, what do we do when you have obstruction and cover up? Real obstruction and cover up from administration? Starting at the top of the White House. Then at the Department of Justice, the FBI, then the National Archives. What do you do? It’s not easy. Simplest thing you can do. And real power that the House has is the power of the purse. Even in these negotiations over the debt ceiling, they’re not without options. There’s a couple of things they can do and they can get creative and they can do it. Flat out. They can take the Levin recommendation and slash the Department of Justice budget, and that includes the FBI by 20%. That’s discretionary spending. It’s not a so-called entitlement. And transfer that money to the Border Patrol and ICE that needs it desperately. Agree to cut it only 10%. If they provide the information demanded by Jim Jordan and his committees and COMAR and other committees. Quoting the Intelligence Committee. I should mention Mike Turner over there. So slashed their budget regardless. Help the Border Patrol and ICE but slash it more if they’re not responsive. And if the Senate won’t go along, the duke it out. That’s worth duking out. There is also based on separation of powers issues. It’s a little more complex, may take a little bit too much time, but it is what it is. The fact is the House of Representatives can hold. Somebody in contempt. Goes from a committee. You saw what Dizzy Lizzie did and had Case Kinzinger did, and the rest of the band of reprobates. So what they can do is then have the Republicans vote to hold certain executive officials in contempt. Now, that said, you do have problems like the sparks and mace. Two goofballs, kind of gadflies. Hey, look, I believe in equity. We believe in the rule of law. So what do you do? And by the way, along with cutting the budget, can cut personnel to it, can target it or do it across the board. But what else can you do as a legal matter? You know, when the Constitution came into existence, there was no Department of Justice. There were no U.S. attorneys. But Congress did hold certain individuals in contempt nonetheless. Well, how did that work? Congress enforced its own contempt citations. Now listen to me. You can read this also from the Congressional Research Service. I wanted to see if they had covered it. And they have. It’s called implied or inherent contempt power. What does all that mean? It means that if Congress can be ignored by the other elected branch of government, it cannot carry out its functions. Then it’s not a co-equal branch anymore. So there’s a balancing act between the branches. But Congress has, as its implied, an inherent or implied power. To hold individuals and public officials in contempt. It hasn’t been used since the 1930s. I’m doing this by memory now. I believe it was in the 1870s that it was done, I believe, to a to an individual, to a to an ambassador. Now, as you can imagine, this might take a little while to handle it. But Congress can also put that on an expedited process or procedure. Again, as a matter of legislation, they could tie it to this budget. And even the Supreme Court has upheld this. Now, the Supreme Court is loath to get involved in these situations. But thanks to John Roberts, when it came to Trump and his taxes and the battles between the executive branch and the congressional branch, he’s opened the door wide here and he should not have. That is for Congress to enforce. Are subpoenas. Trump told his accountants. Don’t give them my tax returns. So as accountants were subpoenaed, Trump intervened and said no, went all the way to the Supreme Court, and they ruled against him and he wasn’t covering up anything, was the principle. Case was Trump versus I believe it was Mason’s. Something like that. In 2020. This general area implied her inherent contempt of power. The Supreme Court has said on a couple of occasions that it is a real power. Through the necessary proper clause. Now, what does that mean? The Constitution says Congress has the power to make all laws which shall be necessary and proper for carrying. Into execution the foregoing powers, and that would include legislating, obviously spending, taxing the necessary proper clause as applies to. Congress authorizes Congress to act, particularly in a case like here. With a people who literally we’re not talking about the Department of Agriculture, the Department Education Department. And you weren’t talking about the Department of Justice. We’re talking about the FBI. We’re talking about the officers of the United States attorneys. They’re not going to charge themselves. They’re not going to investigate themselves. They have a conflict of interest, let alone a separation of powers issue. So they’re not going to do it. So does that mean Congress is finished? They can never really pursue the Justice Department or the. No. They may have to dust off the implied or inherent contempt power. You’re now learning more than any member of Congress knows. And virtually any constitutional lawyer not. Because this is what I do. This is what I live and breathe and study. Stick with me. Stick with me. So the necessary and proper clause is really the basis. If Congress cannot get information, then they might as well shut down the Intelligence Committee, the Judiciary Committee, and the Oversight Committee. That means the executive branch is all powerful. Does it mean you’re gone? Fishing expeditions like the January six committee and you go after private citizens and their lawyers? That’s not what we’re talking about here. They want to know how these classified documents wound up, where they are and what’s in them. And the API. That was created by. I guess Theodore Roosevelt and the Department of Justice that was created by Ulysses S Grant. They’re not in the Constitution. They don’t have plenary power and superior power to Congress. If there are particular issues that could raise questions involving, say, the Bill of Rights, freedom of speech, due process, warrants, that sort of thing, that sort of thing. Then, of course, you have a constitutional right, constitutional issues where it’s understandable when you have separation of powers issues. They can be very complex issues. But that doesn’t mean the executive branch can just cover up. Cover up. And protect its own potential miscreants and malcontents. How does Congress determine how much money should go to the FBI? How does Congress determine how much money should go to federal prosecutors or a U.S. attorney’s office? How does Congress determine how many personnel should be in those offices? How does Congress determine whether the classification system in the executive branch is functioning properly or the National Archives is, or if the FBI is partisan and not impartial? And it’s using the power of federal laws passed by Congress against one party or another. How does Congress determine whether to impeach a sitting attorney general of the United States if he’s involved in cover ups? You get my point. That doesn’t mean the legislature Congress can’t be tyrannical, of course, but in this case, the door has been slammed shut. The National Archives won’t give the House anything the Department of Justice has already indicated. We’re going to make you fight for every every syllable on every piece of paper in every paragraph. Merrick Garland does not merit. A reasonableness belief when he targets. Trump when he targets Republican members of the House when he appoints a rogue special counsel. No. When he refuses to enforce federal law, to secure the border, when he refuses to enforce several law to protect Supreme Court justices, when he unleashes the full power and resources of the United States Department of Justice against parents and against pro-lifers. No, no, no, no. He doesn’t merit any consideration. And he in particular. Is among those who should be prioritized for the potential use. Of implied or inherent. Contempt. Now, what does this mean? Okay, Congress puts this out. You ready for the guts of the matter? Means they can set out the sergeant at arms. To arrest an official who refuses to comply. And put him in jail. Until he or she does comply. What do you think of that? It’s true. The criminal contempt statute that is the usual way to proceed was not enacted until 1857. This power that Congress has implied or inherent has existed since Congress was created by the Constitution. I want to discuss this a little bit further in depth when we return. And my good Mr. Producer on the sponsors. We’ll be right back.

Hour 1 Segment 4

You should know you have the Bill of Rights to process and all the rest of this for the Court has spoken to that. And the Supreme Court said the subject of trial for contempt of Congress. Is not afforded the same procedural protections as a defendant in a criminal trial. So that in 1972, the past decisions of this court strongly indicate that the panoply of procedural rights that are recorded, a defendant in a criminal trial have never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the Contender with an opportunity to appear before the bar of the House or before a committee. Give answer to the misconduct charged against him. So clearly the standards are much, much lower. Much, much lower. Could take time. Don’t get me wrong. I said it hasn’t been done since the 1930s. It’s not always successful. But it can be done. Now the House of Representatives, the majority has a very small majority and you have a couple of boneheads in there. These boneheads are different. They are the liberal rhino Republicans. You don’t believe that when the Democrats come to fight? In a UFC style. They believe that you should be limited to slapping the other side with mittens on. But they come to a gunfight and we bring a knife, as they say. People like Mace and others who are truly becoming increasingly pathetic. Do I have enough time to. Jump into another thought. I don’t I only have 25 seconds here. We’ll be back. I want to pursue this a little bit further. We will then move on. But I want to thank you for listening. And I know this is why you listen to this program. I’ll be right back.