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(upbeat music) - Will Scharf is a real former federal prosecutor and he's running for attorney general of Missouri and he'd be a great attorney general in the Show-Me State. By the way, they may wanna change that phrase, Show-Me State these days, it could be misinterpreted, but that's a whole 'nother story. Okay, Will Scharf. Espionage Act, Presidential Records Act, how do we make this simple? We have a former attorney general who's all over television saying, "No, no, no, it's the Espionage Act," and can you tell me any other former president who's been charged under the Espionage Act since 1917? Do you have one? - It's never happened before and this is a controversial act to begin with. A lot of free speech advocates think it's unconstitutionally overbroad as written. Certainly as it's being applied to President Trump here, there are real legal issues with the way that they've brought this case. Jack Smith, the special counsel, wants America to think this is a very simple open and shut case. They found documents at Mar-a-Lago and therefore President Trump is guilty, but anyone with a passing familiarity with the law here knows that that's just not the case and that's why it's so important that we fight back against the dominant mainstream narrative here. - Why is it at the case? - So under the Presidential Records Act, when a president leaves office, he has the right to determine which of his records are presidential records, official documents, that sort of thing, and which are personal records, items of a personal nature, diaries, journals, memorabilia, items that are of personal importance, not official importance. That determination by the president, courts have said, is essentially unreviewable. Now in order to prove an Espionage Act count, it's not enough for them to show that President Trump had some documents. They have to show that President Trump knew that he wasn't supposed to have those documents. They have to show that he knew that those documents were a particular type of documents called national defense information. They have to show that he then willfully failed to turn those documents over to a government official that he knew had the right to receive them. So when you take all of that put together, this case is really more about President Trump's state of mind than anything else. And I think that when you look at the president's responsibilities, duties, and rights under the Presidential Records Act, it's going to be very difficult, if not impossible, for Jack Smith to prove that President Trump had documents he knew he wasn't supposed to have and that he then willfully failed to turn those documents over to an official he knew he had to turn them over to. -And he's publicly said over and over again, "I've declassified this." And your point is it doesn't matter if he did or didn't. He thought he did as a president, or he has said over and over and over again, "That information, I believe, belongs to me." So if you have someone who goes on to, "Obviously, this information didn't belong to him. It was classified." Your point is that's not enough. It's what's in the president's thinking. It's his state of mind. It's his intent. Not what the prosecution and some talk show guys think. He had to say, "Now, what about this attorney-client privilege issue? Everybody out there knows what this is. You hire an attorney on a contract case, not even a criminal case. You have to be able to consult that attorney and ask them whatever questions you want. And by asking them whatever questions you want, it doesn't mean you're luring them into some kind of criminal scheme. Explain." -Yeah, so under American law, the attorney-client privilege is one of the most crucial guarantees given to a defendant. The right of a defendant to consult with his attorney, to develop legal strategy with his attorney, to ask his attorney what he is and isn't allowed to do. Jack Smith has taken those sorts of conversations between President Trump and a former lawyer of his named Evan Corcoran, and they've said that the questions President Trump was asking amounted to his enlisting that lawyer in some kind of a criminal conspiracy. Relying on that argument, they've then used conversations between President Trump and his lawyer that would otherwise be privileged, and that underlies a lot of this indictment. Without that information, big chunks, if not all of this indictment, will probably end up being dismissed. So they've run roughshod over attorney-client privilege. They've intruded on conversations that I believe they didn't have a right to intrude on, and that's really at the heart of this case here. Which is why he wants a rush job when it comes to a trial as fast as he can. He doesn't want these issues challenged and so forth. He just wants to have the whole field to himself, and I notice also, just quickly here, Will, they're basically trying to intimidate the federal judge. The federal judge was appointed by Donald Trump, and so you have articles that she's very limited criminal background experience, that she screwed up on the special master appointment issue, that she's in Trump camp and Trump got a favorable appointment. So they're trying to influence the outcome of her decisions on motions and other things so she can get straight with the left, the media, and these anti-Trumpers, no? - Yeah, instead of letting this case play out in court as a normal case would, Jack Smith and his team are playing to the Peanut Gallery. They're playing to the mainstream media. They're trying to make arguments in front of the mainstream media that this judge, who by the way was a former federal prosecutor herself, really an eminent legal mind, they're trying to say that she's somehow biased or somehow not up to taking this case. And the reason for that, Mark, is that they are terrified of litigating some of the very serious legal flaws in the case that they've strung together against President Trump. - Yes or no, 'cause I'm out of time here. These documents are in question that are cited by the prosecution. The defense has a right to see every one of these documents. We have not secret trials, but public trials, and to see every one of these documents in public, in the courtroom, with the press there, and with all the rest of us looking over their shoulders. Yes or no? - Absolutely. The jury has a right to see all of these. For these documents not to be made public would be highly, highly irregular. We're going to get to watch this case unfold in public, and I think that's what the special counsel's scared of. - Well, I wish you all the best. You'd be a fantastic Attorney General of Missouri. Will Scharf, God bless you, and thank you for your insight here. - Thank you so much for having me, Mark. Great to be with you. - We'll be right back.

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