The Latest on Trump's Second Indictment

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. One of the most damning pieces of evidence cited in the classified documents, false statements, and conspiracy to obstruct justice indictment against Donald Trump can be summed up by this New York Post headline on Friday, "Trump admitted on tape, he didn't declassify secret military documents he kept." I'll read it, "kept." He didn't just keep them.

The tape, if you haven't heard about it yet, is a recording of him telling someone, "This is secret information. Look. Look at this. This was done by the military and given to me." That's a quote. Again, he said flat out, "This is secret information," and then, "Look. Look at this. This was done by the military and given to me." The context, according to the indictment, is Trump trying to argue to a writer working on a book for a publication no less, Trump trying to argue that he was right about something and the chairman of the Joint Chiefs of Staff was wrong.

He made that argument to the writer allegedly by revealing a classified document about the US military's planning for a possible attack on another country, a document that was still classified. The country was Iran, by the way, according to CNN. That's one little stretch of the 38-count, 49-page indictment. Of course, there is the law, there are the facts, and then there are the politics.

Just like many people believe Trump's stolen election lie, many Republicans are lining up to argue without evidence that this indictment is nothing more than Joe Biden trying to harm his likely opponent in next year's election. House Speaker Kevin McCarthy, with power that he has, is also vowing to use Congress to investigate the investigators. Here is Speaker McCarthy arguing that this is selective prosecution.

Speaker Kevin McCarthy: This is a very dark day in America. When you think about what they're trying to indict President Trump on, you've got a sitting president right now in the exact same situation. You have a former First Lady, senator, secretary of state that had the same situation that nothing was done to her.

Brian Lehrer: Kevin McCarthy there. We'll discuss that specific claim, but there's a lot more to this than did Trump commit these crimes or didn't he. He can be elected president again even if he's in prison serving time for a felony. Did you know that? The law allows that. The underlying question as it has been for eight years now, I think, remains how much are Donald Trump and his movement to discredit the foundations of democracy, that movement to discredit foundations like honest election certification and not enabling white-supremacist violence for political gain, how much will those democratic foundations crumble into something more like Trump's ally, Vladimir Putin, has in Russia.

We'll talk to two guests. With me right now, Democratic Congressman Dan Goldman of Brooklyn and Manhattan. You'll remember that before being elected to Congress, he was the Democratic Party's lead counsel in the first Trump impeachment, the one involving Ukraine and Trump's effort to threaten President Zelenskyy there with not helping defend them against Russia unless Zelenskyy announce he was launching an investigation of Joe Biden. Remember that? How quickly we forget. Before that, Goldman was an assistant US attorney for 10 years in the Southern District of New York covering Manhattan and other parts of the area. Congressman, thank you for joining us today. Welcome back to WNYC.

Congressman Dan Goldman: My pleasure, Brian. It's great to be with you.

Brian Lehrer: Let me start on what I think is one of the most important facts in the indictment. Trump is not charged with taking the documents in the first place. He's only charged with willful retention and deceptively hiding the documents that he kept after the National Archives asked for them back and after an actual subpoena was issued for the return of some of them. I think the number is 197 documents he did return voluntarily. There are no charges even if he was wrong to take them to Florida at all or to New Jersey and store them in a non-secure manner. How central is that to an understanding of this case?

Congressman Dan Goldman: Look, I think it's really important. According to the indictment, the investigation began 14 months after he left the Oval Office. We know that the National Archives had been repeatedly requesting that he return the classified documents, some of which he did return. The thrust here and the quote you talked about from the indictment, I think, really says it all.

The thrust here is whether or not he knowingly and intentionally took the documents from the White House. There is no question that, at some point, he learned that he had them. Instead of simply returning them to the government because they are the government's property, just as Joe Biden did, just as Mike Pence did, he instead entered into a somewhat convoluted and aggressive scheme to keep the documents.

Now, it'd be one thing if he only just kept the documents, but what this indictment alleges is exactly the reason why we don't want people to have classified information in unclassified settings. He started showing the most sensitive military and intelligence secrets to those individuals or other individuals who do not have the clearances to review them. That is exactly the problem here is that, as Kevin McCarthy said, it is a dark day.

It is a dark day because the former president of the United States had such disregard for our national security and the men and women who work in our military and our intelligence community every day to obtain the critical secret information that protects our country. That is why it's a dark day. This indictment is incredibly damning in laying out exactly how Donald Trump completely disregarded our national security.

Brian Lehrer: You heard the clip of Speaker McCarthy there arguing that this is selective prosecution because Hillary Clinton was not charged with what McCarthy argues was a similar act as a presidential candidate. To refresh people's memory, Clinton submitted about 30,000 emails, some with classified information, kept on her non-secure private server, but also deleted about 30,000 emails based on her own judgment of what was relevant to her job as secretary of state or not with no independent review. McCarthy says that was no different from what Trump did, keeping documents based on his judgment. Now, he's under indictment for it, which Clinton never was. Does McCarthy have a point?

Congressman Dan Goldman: No, for a couple of reasons. First of all, it's not a defense to what Donald Trump did. It will not be allowed to be raised in court. Even so, if we're going to talk about it from a political perspective, what Secretary Clinton did, and there was simply no evidence that she knowingly and intentionally concealed classified information when she was asked to return the information.

When you have high-level cabinet and presidential, vice presidents who get routine and regular access to classified information in unusual ways, the president's daily briefing as an example is brought to the Oval Office, used very frequently, and it has all sorts of classified information, but you're not looking at it in a SCIF, in a secured compartmental information place. You're looking at in the Oval Office.

There is the possibility that information is disseminated in unusual ways. The difference here is that Donald Trump didn't return the documents when he was asked to do so. He not only didn't return but he obstructed the FBI's efforts to obtain the documents by lying to his lawyers, by scheming with this Walt Nauta, his butler or whoever, valet, to hide the documents from his attorney and, therefore, from the FBI. We wonder why he did that.

I think that is somewhat of an open question in the indictment that I expect we will learn about more. There's such specific and damning evidence against Donald Trump that there was not with Secretary Clinton. Now, to be clear, and I think Director James Comey said it best, Secretary Clinton was reckless in dealing with that information, but recklessness is not a sufficient standard to charge someone criminally. You have to have higher mens rea of knowing and intentional conduct.

Brian Lehrer: Here's one more McCarthy clip from the other day. You mentioned just now, the SCIF, that secure room where people sometimes go to look at classified documents. McCarthy here references President Biden having been found to have classified documents outside the SCIF, but with no consequences. Here's McCarthy again.

Speaker Kevin McCarthy: What's even worse upon this, this is a leading contender to run for office with an administration of a current president that has exact same documents. Even worse from the aspect, there are documents that President Biden has that he had when he was a senator. I know from being part of the Gang of Eight, you do not remove any documents from the SCIF, so how does he even have the possibility of a document from the Senate? You've got to treat people equally.

Brian Lehrer: Congressman Goldman, your reaction to that, including how Biden would've wound up with such documents in his personal possession in the first place if they're supposed to be viewed only in the SCIF, that private classified screening room. I think the judiciary committee chair, Jim Jordan, is calling for a special counsel to be appointed to investigate the Biden documents and how they got to Delaware and other places.

Congressman Dan Goldman: Well, first of all, there is a special counsel. Special Counsel Robert Hur has been appointed by the Justice Department pursuant to the special counsel regulations just like Jack Smith was. The reason these special counsel regulations exist is to solve for the false accusations that the speaker just made, which is a special counsel is independent from the political appointees at the top of the Justice Department.

If the attorney general is going to disagree with any recommendations by the special counsel, he must notify Congress very specifically as to what those objections were and why. There is an independence and Speaker McCarthy is wrong. The obvious distinction here between the conduct of President Biden and the conduct of former President Trump is that when those classified documents were discovered by President Biden's team, they immediately reached out to the authorities to turn them over pursuant to proper protocols.

He is not trying to keep them. He is not trying to conceal them. He is not obstructing justice in order to keep them. That's exactly we are point at the very beginning of our conversation, which is President Trump is not charged with any of those documents that he did return to the archives voluntarily. He's only charged with the ones that he, for whatever reason, decided that he was going to deceptively conceal and maintain in his possession.

If Donald Trump had acted as Vice President Pence did and who has already been absolved of any potential criminal charges, then he likely would not be charged, but he didn't do that. That's why, ultimately, he's charged. Now, there's a special counsel looking into this exact question of whether there were documents from his Senate days, what they were. We just have some public reporting on that, and it's unclear whether that's true or not.

I do hope that that special counsel will do a thorough investigation because that is what the rule of law requires. The rule of law requires that we treat everyone equally and that no one is above the law, including a president, and that's where the Republicans' arguments fall on their face because the rule of law makes it very clear. It is very obvious from that indictment that anyone else in America would be charged criminally with that conduct.

What they're basically saying is that Donald Trump is the exception, that he is above the law because they argue he should not be charged. That's not how our system works, that's not how the rule of law works, and that is 100% incorrect. If Joe Biden is found to have willfully and knowingly concealed classified information and showed it to individuals who do not have security clearance jeopardizing our national security, then he should also be charged with the crime.

Brian Lehrer: If that piece of the indictment that I cited in the intro is true, then Trump did show classified information about a possible attack by the United States on Iran to a writer to help defend himself politically against something that the Joint Chiefs of Staff had said about Trump perhaps wanting to attack Iran. It seems like he succumbed to a temptation to use this still-classified material that wasn't even a document that he said he declassified as president. That came later. It seems like one of the worst things he may have done here is succumb to temptation to use a still-classified document to make a political point to a journalist in his defense. Do you think I'm reading that right?

Congressman Dan Goldman: I don't know whether he succumbed to temptation and showed it. What I suspect from my 10 years of experience as a prosecutor is that the two examples where he showed highly-classified information to people who did not have security clearances were likely not the only times that he did that. The reason why I say that is that the special counsel needs to be able to prove with admissible evidence beyond a reasonable doubt that he did that.

Oftentimes, you don't have that level of proof with other instances when he did it, but this is very consistent with what I found during the impeachment investigation and what we've seen from Donald Trump throughout his political career. He just has no regard for the law. He thinks he is above the law. He has escaped accountability his entire life. He just doesn't think that it applies to him, and he especially doesn't think that it applies to him if he's the president of the United States.

He believes that his personal interest is synonymous with the national interest, and he has demonstrated a clear disregard for the law in any number of ways, including the first impeachment, including the second impeachment, and the ongoing investigation related to January 6th, including campaign finance laws that he's now been charged with violating in the Manhattan District Attorney's Office.

Who knows what he did with those documents? It is clear from the allegations, the very specific allegations, that he showed still-classified information to people without security clearance that could potentially be very damaging to our national security. I would just add, Brian. You read part of the transcript of that recording, but that recording makes incredibly clear that Donald Trump said and knew that those documents he was showing were still classified.

He said that if he were president, he could declassify them. Because he was no longer the president, he did not have that authority. It is crystal clear from that indictment that those documents had not been declassified while he was president and he knew that. We will hear arguments from Republicans, especially in the House, that he declassified all these documents before he left a recording. Donald Trump's own voice is directly to the contrary of that assertion.

Brian Lehrer: We have just a couple of minutes left with Congressman Dan Goldman from Brooklyn and Manhattan. Remember, he was the Democratic counsel in the first Trump impeachment as well as an assistant US attorney for 10 years before that. Following up on what you just said, from what I've seen, Trump is not charged with using any classified information to purposely hurt the United States, nor does the indictment allege any motive. By contrast, the spy, Robert Hanssen, just died last week.

This was in the news, the former FBI agent who took classified information and sold it to Russia. That clearly compromised US national security. Can you argue that any damage was done here or that Trump did anything nefarious other than simply keeping the documents and maybe trying to show a writer in that one case that a claim the Joint Chiefs of Staff chairman made about him and Iran wasn't true? If not, is it worth putting the country through the challenge to the rule of law that will flow from this for what might be relatively minor infractions?

Congressman Dan Goldman: Well, I disagree with the assertion that these are relatively minor infractions. I think it shows a dangerous disregard for our most highly secretive and classified information. As I said earlier, this is only what we know. There may be much other stuff that we don't know. There certainly were a number of other documents that he went to great lengths to keep. The question then becomes, "Why?"

It doesn't make any sense for him to go to such great lengths to keep military plans that no doubt were prepared by the Joint Chiefs of Staff at Donald Trump's direction because he is the one who ultimately declares war with Congress's consent or he would take military action. The military does not go to him to say, "Sir, we should really attack Iran in your last three weeks in office." That's an absurd concept. Donald Trump, by the conduct that we see here, demonstrates his willingness to show information of the highest classified information.

We don't know what his conversations are with the Saudis or with other foreign governments. Clearly, he was placating the Saudis. He was placating Vladimir Putin while he was president. It's not far-fetched, even though the indictment does not allege it, that he would show that incredibly classified and secretive and important information to foreigners or foreign leaders of not just reporters or members of his political action committee. The fact that he went to such great lengths to hold onto it begs the question why.

Brian Lehrer: Congressman Dan Goldman from Brooklyn and Manhattan, thank you very much for joining us today.

Congressman Dan Goldman: Thank you, Brian.

Brian Lehrer: Listeners, we recorded that interview with Congressman Goldman last hour to fit his schedule, so we couldn't take calls. Now, we will as, next, we'll dig further into the facts and the law around the 38 counts themselves of illegal retention of documents, making false statements, and conspiracy to obstruct justice. We'll definitely get into that conspiracy-to-obstruct charge with NYU law professor and former Mueller investigation leader Andrew Weissmann. Your thoughts and questions welcome at 212-433-WNYC, 212-433-9692 as Andrew Weissmann is up next with us live. Stay with us.

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William Barr: Battle plans for an attack on another country or defense department documents about our capabilities are in no universe Donald J. Trump's personal documents. They're the government's documents.

Brian Lehrer: Former Trump Attorney General William Barr there speaking yesterday on Fox News Sunday. Barr, who helped Trump spin his way out of damning results of the Russia investigation when the Mueller report came out. Remember that? Then in 2020 told Trump he saw no evidence that the election had been stolen, and now saying what you just heard about the classified documents, false statements, and conspiracy-to-obstruct-justice charges from a Florida grand jury.

With me now, Andrew Weissmann, NYU law professor, a formerly prosecutor in Robert Mueller's special counsel office for the Russia investigation, former general counsel for the whole FBI, director of the Enron Task Force when he supervised the prosecution of more than 30 individuals in connection with that company's criminal collapse. Andrew Weissmann is also now the co-host of an MSNBC podcast called Prosecuting Donald Trump. He's the author of the book, Where Law Ends: Inside the Mueller Investigation. Andrew, I know you're super busy during periods like this, so thanks as always for fitting us in for a conversation. Welcome back to WNYC.

Andrew Weissmann: Well, as an inveterate New Yorker, it's a privilege to be on with you.

Brian Lehrer: Thank you very much. On the Bill Barr clip, he seems to be referring to that specific incident. We talked about it in the previous segment in which Trump was apparently caught on tape showing potential battle plans against Iran to someone writing a book. Trump admits or actually boasts on the tape that those were still-classified military documents that were given to him. He didn't say by whom, but he acknowledges he did not declassify that document as president. Could you describe that allegation further and say where you think it fits into the larger picture of 38 counts?

Andrew Weissmann: Yes, I think maybe a good place to start is the indictment that was unsealed on Friday details that particular incident along with an another incident that happened at Bedminster, New Jersey. Those are the two examples in the indictment of what I'll call actual dissemination of national security information. What I'm trying to suggest there is that the indictment really focuses on its charges of illegal retention of documents.

What Bill Barr was talking about is one of two instances where the indictment describes dissemination, but Donald Trump is not actually charged with the separate crime of dissemination. What the facts are as at least as alleged are instances where witnesses and, in one instance, a tape recording is made where Donald Trump is either displaying a classified map or discussing a classified document that he says relates to United States war plans with respect to Iran.

Both of those obviously being documents that he is not entitled to have and certainly isn't entitled to share as somebody who is a civilian, no longer the president of the United States. The fact that he admits on tape that he's aware that it is classified and that he doesn't, as a former president, have the ability to declassify it is pretty damning evidence when you're charged with the illegal retention of classified information.

Brian Lehrer: Would dissemination of classified information be an even more serious charge? If they're describing instances of dissemination, why didn't they charge him with that?

Andrew Weissmann: Those are excellent questions and I've been discussing that with a number of people. I think there are a number of possible answers. One of the things that I noted is that in the charging language, it talks about the fact that both of these instances happened at Bedminster, which is in New Jersey. In order to charge somebody absent a waiver by the defendant, the person needs to be charged in the district where the crime occurred.

The government could have had the view, at least from a conservative reading of the law, that those charges of dissemination were best brought in New Jersey, not in Florida. I can see a follow-up question, which is, is it possible that he might still be charged for those that dissemination in New Jersey? I think, legally, it is possible that that's the case, but I don't think it's terribly likely that they would bring two separate charges in different districts. That's one possibility.

Brian Lehrer: Go ahead. No, go ahead.

Andrew Weissmann: One other possibility is that the government has a good idea of what document Donald Trump was waving around and referring to on tape but isn't definitive about which exact document it was that he was disclosing the information about. There could be a concern if it was separately charged, could they prove that beyond a reasonable doubt?

Now, there's no question, dissemination is a more serious crime because the illegal retention, the concern is the risk of dissemination. When you've actually disseminated it, that's the risk that you're concerned it would happen. It doesn't though have to be separately charged. If Donald Trump is convicted, the fact that he disseminated it can be brought to the attention of the sentencing judge, and the sentencing judge can consider that dissemination in deciding how to sentence the defendant.

Brian Lehrer: That instance of showing a document at his golf club in Bedminster, New Jersey, do you know why he was only charged in Florida and not in New Jersey additionally?

Andrew Weissmann: Well, I think there's a sort of piling-on problem if you were to bring charges in multiple jurisdictions. This reminds me when we were prosecuting the case of Paul Manafort, we only ended up in two separate jurisdictions after we gave Paul Manafort the choice of waving venue and saying, "If you want to be charged just in one district, we can do that so you don't have to face two separate juries."

He preferred to have two separate juries because he thought he would have a more favorable outcome in one of the other districts. It's just not the preferred practice to be that heavy-handed and to try to bring, if possible, all of the counts in one district. As I said, there isn't an enormous sentencing difference because the allegations in the indictment, and it can be brought to the attention of the court if there's a conviction that he actually disseminated not one but two pieces of classified information.

Brian Lehrer: I want to take a caller right now from Anna in Manhattan. A call, I should say, from Anna in Manhattan, who I think has a question that almost everybody has been wondering about since this classified-document story first broke in the first place. Anna, you're on WNYC with Andrew Weissmann. Hi.

Anna: Thank you. Hi. Yes, my question has to do with the motives. For some reason, the bulk of all this discussion about why he did it and why he was hanging on to them, it always goes back to his obsessive personality, his habit that something belongs to him. Therefore, he cannot be touched, but we all know that the man is so transactional. Does it take rocket science to think that probably he is using this toward somebody to earn some money? Is this something that is going to be looked at? Is it seriously being looked at? Thank you.

Brian Lehrer: Anna, thank you very much. That's one theory about why he may have taken these classified documents. Maybe he stands to gain financially. I don't know. Andrew, you've thought about this a lot. What's his motive here?

Andrew Weissmann: It's useful to remember that the government doesn't have to prove motive because it's not an element of any of the charges. It is, however, something that the public and a jury does consider and is going to be curious about. I can give you an example of a case where motive was improved, where there was a conviction, which is the recent trial of a lawyer, Mr. Murdoch, for a double murder of his wife and his son, where it was very unclear to the jury and even the prosecutors exactly why he committed the crime.

He was convicted nonetheless. I don't know the answer to his motive, but I do think that it's possible that he had different motives with respect to different documents. It may be that some of the documents or even all. He had a view, which is the law doesn't apply to him and he's entitled to take them, as he said, "They're mine." It could also be that he was using them too in the way that, to take the example, Brian, that you gave where he's on tape using a classified document to basically berate Mark Milley and say that what Mark Milley is saying to criticize Donald Trump is not true.

It gives him leverage in being able to use that against his adversaries or perceived adversaries. A third, as the caller said, is a transactional one, where it's either not necessarily that he was going to sell it to a foreign country. If you're doing business abroad with foreign countries, the fact that they know and that you might let them know that you have information that could be useful, it's like a pay-to-play scheme without being quite so overt.

All of that is speculation on my part. I would note that of the 21 top-secret documents listed in the indictment, there's a remarkable number of documents that involve the military capabilities of a foreign country or our United States military capabilities. When I read that, I thought to myself, very much like the caller, whether that was something that he could leverage for a business purpose. Of course, the other thing was that it was being kept at a beach resort, which is a honeypot for foreign adversaries to infiltrate.

I think as John Brennan, the former CIA director, said, we're really never going to know the full extent to which these documents were actually accessed by any foreign adversaries. Just to make sure people understand, that goes to the very heart of what the intelligence community does to keep this country safe. This could not be more serious in terms of preventing something like another 9/11 attack.

Brian Lehrer: Let's take another phone call. This is Jim in Ocean County, New Jersey, who has a question about a very specific point from the indictment, which it looks like Jim has read. Jim, you're on WNYC. Hi.

Jim: Yes. Hi, Brian and Mr. Weissmann. I recommend everyone go online and pull it up. At the bottom of page 21, I was surprised to see a reference basically exonerating Hillary where Trump relates to Attorney 1. He was great. He did a great job. You know what? I'm reading from-- He said he did it. It was him. It was he who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty treatments. He was great. She didn't get in any trouble because he said that he was the one who deleted them. I don't know who Attorney 1 is, but it's right there, how reliable he is or not but that he's admitting that whatever all this attempt to defame Hillary was a witch hunt.

Brian Lehrer: We're hearing that a lot from the Republicans that Hillary Clinton was in charge, even though she deleted 30,000 emails based only on her own judgment about whether they are related to her job as secretary of state or not. There was no independent review. That's more of a political question than a legal question, but we're going to be hearing it a lot as an argument for selective prosecution here.

Andrew Weissmann: One very quick response to that is the people who are raising that were all in favor of prosecuting Hillary Clinton. One logical response to that is not that the result is that Donald Trump should not be prosecuted. It would be that there should have been a prosecution of Hillary Clinton. I should note that Donald Trump asked Bill Barr, and this is documented, to reassess that case.

Even Bill Barr, who I'm no fan of and who did many things that I thought were antithetical to the rule of law while he was the attorney general, could not find sufficient evidence to charge her. I think there's also just on the merits, just a huge gulf between what Hillary Clinton did and what Donald Trump did. There's no question that both of them were cavalier in their handling of classified information. For a crime to occur, there has to be knowing and willful retention of classified information.

There was no evidence of that with respect to Hillary Clinton. In addition and as the caller pointed out, the allegations in paragraphs 55 and 54, which I think, it's really great for people to read them, of the obstruction actions by Donald Trump are far and away more egregious than anything we know of with respect to Hillary Clinton, Joe Biden, Mike Pence. It's really unbelievable to read that about what a former president is alleged to have done.

Brian Lehrer: I'm glad you brought that up because I was actually going to ask you about that next. The conspiracy-to-obstruct-justice charge count number 32 in the 38-count indictment. Because even if one could argue against what Bill Barr said in the opening clip that taking and holding some documents is wrong but not that big a deal, well, everyone thinks obstruction of justice, which brought down Richard Nixon, is a serious crime. Can you just describe those allegations in some detail for our listeners?

Andrew Weissmann: Sure. Well, some of the most damning proof comes from Attorney 1. To the last caller's point, Attorney 1 is, by all accounts, I think Mr. Corcoran. Mr. Corcoran, by the way, is not a former attorney for Donald Trump. He is still an attorney for him in connection with the January 6th case, which is a little remarkable to me because he's pretty much a star witness in connection with the documents' case.

He, as you may remember, was required to testify and turn over his notes by the former chief judge of the District of Columbia, Beryl Howell, because she found that there was the crime fraud exception to the attorney-client privilege, which is a legal way of saying, "You can't use your lawyer to commit a crime." If the government can show that that's what you're doing, the attorney-client privilege doesn't apply. In paragraph 54, you see Donald Trump dealing with, "What am I going to do now that I received a grand jury subpoena from the government on May 11th, 2022?"

It's set out in verbatim. First, he said, "I don't want anyone else looking at these boxes." He really has this mania that he personally is going to be the one looking through them. There's a reference to some of his underlings referring to the boxes as his Beautiful Mind boxes, which is a reference to a movie where someone's really obsessive, former Princeton professor. He said, "I don't want anyone looking at them. Wouldn't it be better if we tell them, the Department of Justice, that we don't have anything?"

In other words, just to be clear, "Isn't it better if we just lie to the Department of Justice?" Then as the caller mentioned, the former president makes reference to what he believes happened with Hillary Clinton and basically said, "With Hillary Clinton, she had a lawyer who was willing to do the dirty work for her and get rid of the documents." This is like Becket, "Will no one rid me of this meddlesome priest?" He repeats, as the indictment says, more than once on that day. He says, "Why can't you just get rid of these and then I won't have the problem?" In other words, asking the lawyer to do this.

I should say, as somebody who worked in the Mueller investigation, that it was really reminiscent of what happened with Don McGahn where he asked Don McGahn, the then-White House counsel, to write a false declaration and give it to Donald Trump so he could put it in a safe. He obviously wanted Michael Cohen to commit a crime for him as Michael Cohen has testified. Michael Cohen, actually, unlike Don McGahn and Mr. Corcoran, actually went along with it and was caught and pled guilty to that. This idea of using lawyers in this way, this is not a unique instance that's recounted in paragraphs 54 and 55 of the indictment.

Brian Lehrer: When Trump said to his lawyer, and you have the exact words that you just cited, something like, "Wouldn't it be better if we just got rid of them?" was he asking his lawyer to destroy classified documents?

Andrew Weissmann: Classified and just government documents. Just remember, no government document belongs to a civilian. If any more than if you have taken the painting of George Washington or the famous posthumous painting of John F. Kennedy from the White House and put it in your home, these are government documents. Whether they're classified or not, they do not belong to an individual. The other is once you have a grand jury subpoena calling for them, if you destroy them, if you do it knowingly, that is, by definition, obstruction of justice. Also, lying to the government is a false-statement charge, one of the things that He and Mr. Nauta are charged with.

Brian Lehrer: Talk about Walt Nauta angle here. As some listeners know, some may not, one additional person besides Trump is charged in this case, described as a former valet, Walt Nauta. What did he do allegedly?

Andrew Weissmann: When Mr. Corcoran is being asked, and now I'm going to just paraphrase, "Why can't you just lie to the government? Why do you have to look for documents? Why can't you just get rid of them? Why can't you just tell them there are none?" and Mr. Corcoran is not going to commit that crime, Mr. Corcoran says, "I need to do the search. I'm going to go into the storage room, and I'm going to look through things to make sure that we've responded to the grand jury subpoena."

Again, I'm paraphrasing, but essentially, that's where Mr. Trump tries to figure out, "Okay, well, what am I going to do now?" He has Mr. Nauta remove the boxes from the storage room so that he, Mr. Trump, can go through the boxes and pluck out the material that he doesn't want to have turned over. There's actually a back-and-forth with various employees texting each other about Donald Trump's status in terms of how many boxes has he gone through.

That's just so damning because, usually, the defense for a very senior executive is to say, "I don't get in the weeds. I don't know what my underlings were doing. I don't know what was in the boxes. That's just far beneath me." Here, the government has clearly witnesses and contemporaneous text that puts Donald Trump essentially in the boxes, where he's really got a mania about what's in them.

As I noted, he said, "I don't want anyone else looking through these boxes." Mr. Nauta is charged with two things. One, helping Donald Trump do this to avoid complying with a subpoena. Then when Mr. Nauta is interviewed, it's charged, which, again, these are just allegations. It's charged that he lied to the government and said, "I don't really know anything about these boxes and where they were moved from or to."

It's clear from contemporaneous texts that that's not the case. I think that's the reason he was charged. Now, of course, the government, I think, would like him to flip the reports that they tried to get him to be a cooperating witness. He clearly said no. As we used to say in the government, he's on the wrong side of the V, meaning in the United States versus. He's not on the United States' side, he's on the defendant's side.

Brian Lehrer: We have a few more minutes with Andrew Weissmann, NYU law professor, former lead prosecutor, and Robert Mueller's special counsel office for the Russia investigation, former general counsel to the FBI itself. He's also now the co-host of an MSNBC podcast called Prosecuting Donald Trump and author of the book, Where Law Ends: Inside the Mueller Investigation.

A person who could help one side or another here, depending on how she sees things, is the judge assigned to this case. Aileen Cannon in South Florida, a Trump appointee who some of our listeners will remember, ruled in his favor earlier in the classified documents investigation. A listener writes, "Is there any chance this Trump-favored judge, Cannon, could disallow the tape of his admission of knowing he had secret documents?" Take that listener's question. More broadly, how do you see the Aileen Cannon factor here? I saw Slate had an article this weekend that was all about many ways that Judge Cannon could sink this case.

Andrew Weissmann: I think it's important to remember that just because she was appointed by Donald Trump, that's not the reason to be concerned. There are many judges who are appointed by Republicans and Democrats, Donald Trump or not, who do their job and they do it impartially. In fact, the 11th Circuit that reversed Aileen Cannon, not once but twice, was made up of several judges who were on the panel who were appointed by Donald Trump.

They reversed her in very strong language that she was not applying the facts or the law correctly. It's not who appointed them. It's the fact that she had rulings that were so untethered to either the facts or the law. I would think two things that stuck out to me from her prior rulings was, one, that she said that the former president is entitled to additional weight, and I'm paraphrasing, because of his former status as a former president.

That is antithetical to the rule of law and to her oath of office to treat people equally. He's not entitled to more weight. The 11th Circuit said that in no uncertain terms in reversing her. The other is that she was reversed for being particularly cavalier in the way that she was handling classified information and how she was letting it be seen by people who didn't necessarily have clearance or need to know.

She was reversed on that basis. That's particularly concerning because that's the very heart of what this case is about, which is the defendants accused both of them about the abuse of the classified documents and keeping them under lock and key. She has enormous power because she, in many ways, has a pocket veto because she could schedule this case to be heard, not just after the Republican nomination but after a general election.

The public would be unable to hear the trial and hear the evidence and be able to make a decision about who to vote for after jury, Donald Trump's peers, had an opportunity to consider whether he did this or not and whether the government could prove the case beyond a reasonable doubt or not, either way. In many ways, it would be more fair to Donald Trump to hold the trial beforehand so that he's either cleared or he's not.

On the issue of whether she could revisit the issue of the attorney-client privilege, which Beryl Howell ruled on, the answer to that is no, she could not. That is something called law of the case. If she were trying to reverse that decision, I think she would be reversed by the 11th Circuit for a third time. I just don't see that as a likely prospect. As I said, a district judge has enormous power. There are various ways that she could make the case very, very difficult for the government.

Brian Lehrer: Let me ask you a closing question. Is there an exhaustion factor here and maybe even a pointlessness factor? Trump was found to have obstructed by Mueller, impeached for Ukraine and January 6th, found libel in the E. Jean Carroll sexual assault lawsuit, indicted for falsifying business records by the Manhattan DA. Now, this. The country seems permanently divided into camps as you know that think Trump is a scoundrel who keeps getting away with stuff and those who think his enemies are just always out to get him.

None of this might matter politically. We don't know that yet. Nikki Haley's reaction to this was to say the other day after the indictment came out to move beyond the endless drama surrounding Donald Trump. I don't know. Could that be the best outcome at this point because the effect of any prosecution here might have diminishing, lessening, and lessening returns?

Andrew Weissmann: I'm going to answer that in two ways. Even though I'm no longer in the Department of Justice, I very much think of the world in terms of accountability. There's a reason I was in the department for over 20 years. Regardless of what the political consequences are or not, whether people take it seriously or not that you're risking the national security of the United States, numerous people who are barred junior to Donald Trump had been prosecuted and gone to jail.

Former CIA directors have been prosecuted. Former national security advisors have been prosecuted. He should be treated no better and no worse. There's just no question that this is not a case of selective prosecution. In terms of the political side, which I think your question goes to more than the legal side, I think that's a test for our country, not a test of what the Department of Justice should be doing. We either are a country that believes in the rule of law who takes this seriously or not.

We're either going to rise to the occasion and value the rule of law or we're not. To me, that's something that is a political question. I also think that you can't really decide whether you should indict somebody based on that. We don't know the answer to how this will be seen. I also have faith in the American people if and when there's a trial ideally, I think, before the election where they will see the evidence. They can assess the facts and the law and the government's conduct and the defendant's conduct and make a decision based on those facts.

Brian Lehrer: Andrew Weissmann, NYU law professor, now the co-host of an MSNBC podcast called Prosecuting Donald Trump, and author of the book Where Law Ends: Inside the Mueller Investigation. You want to just plug your new podcast? I see you have a full reading of the 38-count indictment. How long does that run?

Andrew Weissmann: Ali Velshi very kindly did that because, as one of your callers said, it's very important for people to either read or listen to the indictment. It's extremely readable or listenable now. Let me give a plug for my co-host, Mary McCord, who is a former career criminal and national security lawyer and is a just-the-facts-ma'am kind of person. We're trying to give a very apolitical discussion of what is going on and try to make some observations behind this, what's going on Biden's strategy calls behind the scenes. We try to emulate your show, Brian, having been a very loyal fan for years.

Brian Lehrer: Andrew, thanks again. Talk to you.

Andrew Weissmann: Bye-bye.

 

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