Matt Whitaker: "I don't have any reason to believe there's enough evidence to indict President Trump."

Just days after former President Donald Trump launched his third bid for the White House, the U.S. Department of Justice ramped up two investigations that may be the greatest impediments to his fight back to Pennsylvania Avenue. 

Veteran prosecutor Jack Smith is heading both DOJ investigations as a special counsel, examining Trump’s role prior to the Jan. 6 riot and whether he retained sensitive documents at his home in Mar-a-Lago.

"If you're inciting a riot by saying go peacefully and patriotically to the Capitol, then, you know, we have turned the First Amendment upside down on its head," former acting Attorney General Matt Whitaker told Fox News Digital. "I don't see that part of the investigation being of much concern or consequence to President Trump."

"This classified document investigation certainly, you know, appears to be a little more serious." 

In response to the special counsel, Trump is echoing attacks he made during the Mueller probe from 2017 to 2019, now targeting Smith personally, telling Fox News Digital, "They found nothing, and now they take some guy who hates Trump. This is a disgrace and only happening because I am leading in every poll in both parties."

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"We'll see if [Jack Smith] can use the discipline and the traditions of the Department of Justice and, you know, do his job really above the political fray," said Whitaker. 

While Attorney General Merrick Garland said that the "extraordinary circumstances" of a Trump-Biden rematch escalated the urgency of the DOJ cases, Trump told Fox News Digital he would "not partake" in the DOJ probes.

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But Whitaker says that the former president may be making a mistake.

"I would recommend if [Trump] asked me that he should take an active role in defending himself," Whitaker said. "The average citizen can't exert executive privilege, I think the president of the United States and, you know, certainly Donald Trump could, and I think that issue needs to be adjudicated. So I think there is a role for the special master."

"If I'm sitting in the shoes of somebody that needs to indict a case, I want to I want to know the why, I want to understand the motive, understand who's the victim and what damage has been done."

But Whitaker tells Fox News Digital that he disagrees with former Attorney General Bill Barr and believes the DOJ may not have the smoking gun to indict the former president. 

"I don't have any reason to believe there's enough evidence to indict President Trump. I don't think ultimately he gets indicted."

And as the Trump legal battles intensify, the Biden administration is still struggling to get a grip on the crisis at the southern border. 

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On Monday, 15 states filed a motion to extend Title 42 explosions before the Dec. 21 deadline as Customs and Border Protection say an average of 2,693 migrants per day are evading apprehension.

"I don't expect that there's a legal justification for Title 42. There's certainly a political justification," Whitaker said. "This administration desperately wants it to continue in place no matter what they might say in court filings, because it's really about the only tool that they can use."

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Whitaker also revealed that he met with cabinet members in the Biden administration to find solutions but though discussions went nowhere.

"I worked with the president and others in the cabinet and, you know, even the legislators to come up with a solution that addressed all these issues. I thought we were close in the meetings that we had, but ultimately nothing got done."