Advisory Opinions - Indictment Watch: Trump Charged in Classified Docs Probe

Episode Date: June 10, 2023

In an emergency pod, Sarah Isgur and David French review the indictment against Donald Trump which was unsealed on Friday: what is and isn't in the indictment, and how does this case compare with those of Hillary Clinton and Joe Biden. Show Notes: -Trump Classified Docs Indictment, Annotated Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to an emergency edition of Advisory Opinions. I'm Sarah Isgur, joined by David French. And David, unclear whether this will be a series of emergency podcasts. be a series of emergency podcasts. We may end up doing like just sort of a separate serial podcast about this indictment specifically, but we're going to start here today and see where things go. So all I want to do today is walk through the indictment now that we have it, then reactions to it, what's missing, what's in there that we weren't expecting.

And then I want to answer some of the real criticism out there, that this is a double standard, that Trump's political opponents are indicting him with criminal charges. And I think that's all we're going to do today. Trump's getting arraigned on Tuesday. We'll have a Supreme Court podcast to do next week. We're going to be busy bees this month. That's the point, David. We're already so busy,

Sarah. We're not even talking about Alabama, which we were in the green room discussing our level of surprise and what that case means. We haven't talked about Jack Daniels. We've got Jack Daniels to talk about. No? All of that's going to wait. This is an emergency podcast. I'm sorry. Daniels to talk about. No. All of that's going to wait. This is an emergency podcast.

I'm sorry. Yeah. Okay. So can I just start with an overall assessment before we walk through? Yes. Okay. I think of it, the difference between thinking through the possibility of the indictment versus actually reading the indictment is the difference between being told the plot

of Star Wars and watching Star Wars. So we didn't, we knew, I mean, the general outline was already disclosed in Department of Justice filings. If you read Department of Justice filings before this, you already knew the overall arc of this story from the first provision of boxes to the you know to farah as a result of their request for presidential records to the discovery of classified information to the grand jury subpoena to the partial response to the grand jury subpoena that was supposed to be a full response to the search warrant and the finding of new classified documents. All of that is just, that's the basic outline. They disclosed it to courts before. That's the basic outline.

But it's all the sound and color, Sarah. It's the difference between hearing that Darth Vader comes through an airlock with a lightsaber and watching him come through the airlock with a lightsaber. That's my impression. It's just so much more alarming in the details, I think is the way that I would say it, than I thought it would be. I'm going to disagree slightly. I think what I found perplexing, like surprising, is the amount of audio recordings and transcripts and statements from Trump's own attorneys or associates of the let's do criming. Yeah, right. Because one of the big problems with this entire case,

which I've said from the beginning, is the mens rea aspect. You've got to have the mental state. Just keeping the documents ain't enough in a lot of cases. And it's going to be part of the problem when we talk about the comparison with Hillary Clinton. It's sort of the difference between correlation and causation. It's very easy to show correlation and it's incredibly hard to ever show true causation in anything. And yet in this indictment, they've managed to get the causation. So let's start here. It's a 49-page indictment. Starting around page 10,

we're going to get to the narrative story. Now, it's also worth saying, this is a speaking indictment. We talked about that with the Bragg lawsuit. And I think this is relevant, David, because you and I threw a lot of shade on the Bragg indictment coming out of manhattan yep um in the manhattan da's office and we just were like this it's like a speaking

indictment and sort of like coughing is speaking like yeah there's sound but there's no nothing discernible there there's no theory what evidence is pointing to what part of the case i'm so confused there's typos this is what a speaking indictment is supposed to look like um it tells you the theory of the charges what elements are required and then it walks you through a story like an opening statement really like a summary of what they're going to prove at trial and how they're going to prove it um you know, I know this is DOJ and I'm a little biased because I worked there, but like this is textbook.

This is what it's supposed to look like. So, okay. As Trump's preparing to leave the White House, he's packing a bunch of items and a lot of those are going into boxes containing hundreds of classified documents to head to Mar-a-Lago. Then they're getting stored in the ballroom at Mar-a-Lago.

They're just sort of out in this ballroom, and there's a picture of that. It's a stage, and there's just endless, you know, those boxes that you get when you're fired from a job. All right. So fast forward, and you have Trump employee one and Trump employee two talking about, okay, we kind of need to move the boxes. Where are we going to move them to? And they're like, yeah, yeah, there's that room in the shower. So now some of the boxes are going to go to the shower. So now some of the boxes are going to go to the shower. And they have a picture of that too. The shower has a chandelier, so it's not like your dorm room shower, but nevertheless.

So now we've got some boxes in some different places. 80 boxes or so in the storage room. Then there's some in the shower. Now some of the boxes are also, don't forget, going to fall over at one point. And spill open. And spill open. So Nauta is Trump's

former military valet. They called him the Diet Coke guy in the White House. Why? Because every time Trump wanted a Diet Coke, there was this guy with Trump's Diet Coke. When Trump leaves the White House, so does he. And he goes to Mar-a-Lago and continues to be an aid for Donald Trump. He's going to be indicted as part of this conspiracy. So he takes a picture of the boxes that have fallen over, and there's now just papers strewn across the

floor uh including by the way um document sorry uh the information in the document was releasable only to the five eyes intelligence alliance consisting of australia canada new zealand the united kingdom and the united states not a text employee two i opened the door and found this and he attached two photographs of the spill employee two says oh no oh no i'm sorry codis had my phone um the photo that he sent to employee two of the spilled documents includes visible classified information um they include that picture that picture is fuzzed out so that you can't see the classified information but you can see that it's a huge effing mess right okay so uh now we get to trump talking about classified information with people who don't have security clearances.

You've got Trump talking to the writer of Mark Meadows' biography. And basically, Milley, I guess, has said that Trump wanted to go to war with Iran and Trump's trying to push back and say, no, it was all Milley's idea. I don't really care. That's beside the point. I don't really care. That's beside the point. But in order to prove to this writer that it was Milley's idea, he's going to show him a classified document with basically plans to attack Iran. And so the writer says, wow. And Trump says, we looked at some.

This was him. This wasn't done by me. This was done by him, meaning Milley. All sorts of stuff, pages long. Look. Meaning Millie. All sorts of stuff. Pages long. Look. Hmm. Wait a minute. Let's see here.

I just found, isn't that amazing? This totally wins my case. Mm-hmm. Except it is like highly confidential. Yeah. Laughing. Trump. Secret.

This is secret information. Look. Look at this. Trump. By the way, isn't that incredible? Staffer, yeah. Trump, I was just thinking because we were talking about it and you know, he said he wanted to attack Iran and what? This was't know. We'll have to see. Yeah, we'll have to try to. Trump, declassify it? Staffer, figure out a, yeah. Trump, see, as president, I could have declassified it.

Staffer, yeah, laughing. Trump, now I can't, you know, but this is still a secret. Staffer, yeah, laughing. Now we have a problem. Ha ha ha. Trump, isn't that interesting? Can we pause? I mean, we're going to have to come back if we don't.

That's one of the do crimings. Yes. There's going to be more do crimes. But do you want to pause on this do crimes? I just want to pause on this do crime because there is just an absolutely uncanny way in which Trump allows his defenders to get out on various limbs. And he just even just saw the limb off. He chops it off and burns it in a fire. And then the same people singed, burned, bruised from the fall get up on a new limb that he then promptly chops off. This one is the chopping off of the limb that says, yeah, I just, I declassified everything. It was declassified.

Whether I went through a process or I declassified in my mind, I just declassified it. And here he says, now I can't. See, as president, I could have declassified it now which indicates he didn't now i can't this is still a secret my gosh sarah yeah so there's a few things here this gets my correlation versus causation right by saying i didn't declassify it it is still classified and i'm showing it to someone who i know doesn't have security clearance which is why we're discussing whether i would need to figure out a way to get this declassified in order to give it to you for the book even though i'm showing it to you now meaning admission of guilt like i know i'm not supposed

to be doing this that's what's incredible about the fact that not only they know about this exchange, but again, according to the indictment, they have the audio because the writer was recording the audio conversation with Trump. Yeah. All right. Let's keep going. I just, I just had a sigh.

That's all I had is I had a sigh. So yes, keep going. All right. So Trump is now going to show his political action committee representative a classified map and tells the PAC guy that he should not be showing him the map

and not to get too close to the map. I don't know what he thinks the map is going to do to him. But nevertheless, a similar situation. They don't have that in audio that I know of, but they do have the testimony, it sounds like, of the PAC guy. All right. So now the National Archives gets wind that there's all these classified documents at Mar-a-Lago.

So now we're going to get to a different messy part of this where nara is going to ask trump whether he has any classified documents and now trump is going to start caring about the whereabouts of these boxes and these documents all right i don't want to go through all of the details of this, but basically Trump and Nauta, remember that former military aide, are going to start having text messages back and forth about where the boxes are, who's going to be able to check the boxes, where the box is going, and Trump himself wants to review everything in all of the boxes. Trump himself wants to review everything in all of the boxes. Okay. So now the FBI is getting involved and they send a subpoena to get the boxes back. Now the attorneys get involved. Attorney one and attorney two are going to ask to review the boxes.

And Trump, they say, in sum and substance, meaning attorney one and two are going to be now relating what Trump told them, I don't want anybody looking. I don't want anybody looking through my boxes. I really don't. I don't want you looking through my boxes. Well, what happens if we just don't respond at all to the subpoena or don't play ball with them?

Wouldn't it be better if we just told them we don't have anything here? And well, look, isn't it better if there are no documents? At that point now, attorney one and two are going to ask to come look through the boxes. Attorney one and two are going to ask to come look through the boxes. Before they can get there, Trump and Nauta, the aide, are going to go through all the boxes and only make available to the attorneys some of the boxes. They've hidden some of the other boxes. Three boxes they have on security videotape. Nauta moving three boxes.

Then he's going to move another 50 boxes. And the attorneys aren't going to get to review all of it. Sorry, then there's another 11 boxes he removes. A lot of boxes moving around with Trump texting, you know, where are the boxes? What's going on with the boxes um okay so then the attorneys are going to review the boxes and get the classified material in a red well and tape that and then they're going to show it to trump 38 documents with classified markings removed placed in the red well folder and trump's gonna say did you find anything? Is it bad? Good. And then attorney one

says he made a funny motion as though, well, okay, why don't you take them with you to your hotel room? And if there's anything really bad in there, like, you know, pluck it out. And that was the motion that he made. He didn't say that. This is where we're going to get into, David, why there was a, let's say, an execution of a search warrant on his property. Because attorney three is then going to sign the document saying that there was a diligent search conducted after the receipt of the subpoena. All documents were located that are responsive to the subpoena and any and all responsive documents accompany the certification these statements were false because among other reasons trump had directed nauta to move boxes before trump attorneys won june second review so that many boxes were not searched and many documents responsive to the subpoena could not be found. All right. So then we have, of course, the classified, sorry,

the execution of the search warrant. And then we're going to go through the counts, willful retention of classified information, obstruction. All right, Davidid so that's the run-through of the indictment yeah and i think you're exactly right to the to identify the legal significance of some of the evidence as compared to say for example the the atmospherics the color so the atmospherics would be, the atmospherics would be, look at this stage, right? Or look at this, these boxes spilled out where you have a secret document that's plainly in front of everyone. Those are more atmospherics. talking about if you're talking about the well i don't even really know how much they matter legally truly because there was never really a credible argument that mar-a-lago even mar-a-lago under lock and key was a place for this national defense information that was this was not the proper place of storage so showing that it was stored on a stage or in a bathroom or in a closet doesn't change the fact that it's not in the proper place of storage it just shows sort of how brazen and egregious it

all was so i think that that's the difference between color and substance and you're exactly right to hit the substance when you're talking about, in particular, the recordings that illustrate that he knew it was already, that it was still classified. And he knew he didn't have the continued power to declassify it. And he states that he didn't declassify it before he left. I mean, that's quite legally significant right there. That is a very difficult assertion to run from that this assertion, the idea that, hey, I declassified everything. Oh, did you really? Here we have you on tape

saying you didn't and you can't declassify this right now. So I think you're exactly right to point that out. And it is actually pretty remarkable sort of how brazen the last minute series of messages and movements of the boxes before the service, before the production of a subset of the boxes before the grand jury subpoena. Again, this is something that strongly implies mens rea, that strongly implies intent, is moving around. And then finally, this is more sort of atmospherics, but my gosh, from a lawyer's standpoint, Sarah, if I'm sitting there and I'm about to sign a certification of a grand jury subpoena, and Donald Trump is my client,

and I've only looked in basically one room, and then say I've produced any and all documents, what on earth? You talk about A, a bad call by the lawyer and B, a client who is absolutely willing to throw his lawyer under the bus and to back up over top of him and then drive over him again,

him and her, by the way. It's pretty remarkable. So, yeah, there was color, sight and sound, you know, to go with my Star Wars analogy, but there was also substance, new parts of the script that we didn't know before. Yeah. And also worth noting, it actually says that lawyers one and two, of course, didn't sign. We all, we sort of know how this went down. The lawyer who actually signed that letter to the Department of Justice never reviewed any of the boxes herself. And this indictment

notes that she was asked to fly down to be the records lawyer and to sign this by one of the other attorneys, which does raise the specter, at least, that that attorney maybe knew that he hadn't seen everything and was throwing the other lawyer under the bus. Unclear exactly what the motivation was there, but there's an interesting line about why lawyers one and two, the ones who didn't conduct the search, somehow don't want to sign that document themselves. Yeah, somehow, somehow don't want to sign that document. And we'll take a quick break to hear from our sponsor today, Aura.

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Use code ADVISORY at checkout to save. Terms and conditions apply. And then I think it's important, when we go back and you're looking at the execution, the search warrant, this really jumped out at me. jumped out at me. So they've already, they've had production one to FARA with multiple top secret documents. They've had production two in response to the grand jury subpoena, again, with multiple classified documents. So then you get to production three, and it's not really production. We'll call it seizure one after productions one and two. And what do you see in seizure one?

You see 27 classified documents in Trump's office. You have 75 classified documents in the storage room. That's 102 classified documents, of which 17 are top secret and 54 are secret so this was a considerable amount of additional classified highly classified information that was withheld after two rounds of production uh so again i think if you if you serve you search warrant and you actually find that, well, he didn't give us all of the non-classified records, but he did give us all of the classified records, it changes the dynamics. But that's not what happened here. He kept withholding top secret information time and time and time again. And all of this goes to this intentionality

time and time and time again. And all of this goes to this intentionality aspect that we'll be talking about in connection with sort of the Hillary Clinton, Joe Biden, Pence comparisons. Yeah. And then there's another moment that I didn't talk about here where NADA, the military, the former military aid, is then instructed after Trump goes through some of the boxes to move some of the boxes or some of the documents in the boxes onto the plane to Bedminster. And then Melania is like, FYI, there's not going to be any room on the plane. The boxes aren't coming.

And he's like, oh, hi, ma'am. Well, basically, we're going to have to all talk this through about how that's going to happen. But I think just the papers are coming, not the boxes. And then, of course, what's going to end up happening is, yeah about how that's going to happen. But I think just the papers are coming, not the boxes. And then of course, what's going to end up happening is yeah, the boxes do end up on that plane. They do end up going to Bedminster and that's going to result in an

additional search. Right. Exactly. Yeah. It's so again, you, what you see time and time and time again is an effort to evade that we already had the broad brush strokes that we

knew that had happened, or at least we knew that the Department of Justice was claiming that it happened. But seeing the granular detail of it really does communicate a mens rea that the broad brush strokes didn't communicate as fully, in addition to the actual words that he says that are caught on tape, which indicate mens rea, but the level of movement here indicates intentionality. And I think that that's an important point. It's a point worth continually emphasizing as we talk about this case and other cases. So real quick, let me just mention some things that aren't being charged here. So all of the classified documents that come from the White House to Mar-a-Lago and that initial, you know, Trump ceases to be president and they fly to Mar-a-Lago, that's not what's being charged

here. When they are first asked for the documents back and they give back the 38 documents in the Redwell or whatever, those are getting a free pass. Those are out. It's really only going to be those that they can prove are retained after Trump leaves the White House, after he's asked whether he has any classified documents, and importantly, after there is now evidence that he personally went through all the boxes

to look and see what documents were in them and started segregating out basically which classified documents he was going to allow his lawyers to go through and find and then send back to the National Archives and which documents he then kept even from his lawyers so that multiple efforts to search couldn't turn them up. That's where the willful retention is going to come from. That's where the conspiracy to obstruct justice is going to come from when he's doing that with the former military aid because the conspiracy is going to be between the two of them now uh and we can get to this a little bit more in the pushback section yeah the former military aid this is a conspiracy with iran to sell united states secrets nobody said it was going to be nobody thought that trump was trying to give military or classified documents to a foreign government. The conspiracy here is with his own employee to hide classified documents lawyers who are then going to say that the subpoena has been met.

Any and all responsive documents have been turned over. And then even for the search warrant executed by the FBI. So then what are some of the other fun charges? More withholding for both of them, corruptly concealing a document again you're all this willfully corruptly that's all going to get to mental state and that's why they're including these recordings and that's why the recordings are so unique to this case uh concealing a document in a federal investigation scheme to conceal i mean that's just a great crime to be charged with in general scheme to conceal is a fun one false statements and representations uh obviously more false statements

um and by the way this is the false statements against nauta the former military aide he sits down for two interviews with the team and then when they ask for him to clarify some contradictions between the two interviews he invokes his fifth amendment right against self-incrimination this guy was getting some bad legal advice i just want to be clear oh my god really bad so here's one of the back and forths question are you aware of any boxes being brought to trump's home his suite suite? Answer. No. Literally, they have him on tape doing that. Okay. All right. So to the best of your knowledge, you're saying that those boxes that you brought onto the truck, first time you ever laid eyes

on them was the day when Trump employee number two needed you to correct um do you have any information that could help us understand like where they were kept how they were kept were they secured were they locked something that makes the intelligence community feel better about these things you know answer i wish i could tell you i don't know i don't i honestly just don't know and remember this is the guy who took pictures of the boxes that had fallen with all the classified information strewn on the floor. So he does know. Question. So you only saw 15, 17 boxes. The day of the move. They just showed up that day. Answer. They were in Pine Hall. Employee two just asked me, hey, can we move some boxes? Question. Okay. Answer. And boxes? Question, okay, answer.

And I was like, okay, question. So you didn't know, had no idea how they got there before. Answer, no. All right, David. So let's talk about how this is different from some of the other cases that we've seen before. Notably, I think Joe Biden, that special counsel is ongoing. Rob Herr, the special counsel, looks like he's a little bit behind Jack Smith, which makes sense. Jack Smith, of course, inherited an investigation. Rob Herr was starting from scratch when he was

appointed back in January. But look, Joe Biden had documents in boxes next to his Corvette in a garage for 10 years. Why isn't that worse? And then, of course, in boxes next to his Corvette in a, you know, garage for 10 years. Why isn't that worse? And then, of course, we need to talk Hillary Clinton. Yeah. Okay. Well, can we go with Hillary and then back into Biden?

Whatever you want. Future adventure. All right. All right. So let me just begin with the following statement, Sarah, just so there is absolutely no confusion from anyone who listens at all. I think Hillary Clinton should have been charged. Period. End of discussion. Had I been, had I treated documents the exact same way that she treated documents when I was a captain and a major in the United States Army with a secret

security clearance, I would have been charged. I feel extreme confidence, Sarah, when you had your security clearance at the DOJ, and if you had done what she had done, I have a lot of confidence that you would have been charged. So I am not coming at this from a position of saying Hillary should not have been charged and Trump should have been charged, and here's why. My position is Hillary should have been charged and Trump should have been charged. And here's why. My position is Hillary should have been charged. The standard that Comey articulated to not charge her was not a proper standard. But under the standard that Comey articulated, Trump meets that test. All right.

So let's back up and take a little walk down memory lane. So we should put this in show notes. July 5th, 2016 statement by FBI Director James Coney. You can click the link in the show notes and read the whole thing. But essentially, it all boils down to this. It says, now, let me tell you what we found. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence they are extremely careless in their handling of very sensitive, highly classified information. I looked at that and I jumped right on top of that by saying, isn't that actually what the law prohibits? It prohibits removing national defense information from its proper place through gross negligence. Isn't that what extremely careless is gross negligence.

But then he articulates how essentially that the Clinton team should have known that they shouldn't have had some of the conversations that they had in a non-classified system about information and about topics that were clearly highly classified. But then he goes on to say this, although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Bold statement there. Prosecutors necessarily weigh a number of factors before bringing charges.

There are obvious considerations like the strength of evidence, especially regarding intent. Responsible decisions also consider the context of a person's actions and how similar actions have been handled in the past. And he goes to this. In looking back at our investigations

into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted, and here's the key part, involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice. We do not see those things here, he says. So what does that mean? Does that mean, what should our stance be post Comey determination? This is a really important question.

Is the stance then, well, because Hillary wasn't charged when she should have been charged, then nobody should be charged no matter the facts? Or is the stance, okay, if that is your standard, then that is the standard. And if it applied to Hillary, it should be the same one that we apply to Trump, the same one we apply to Biden, the same one we apply to Pence and anybody else who has a classified information snafu. And I take that view as opposed to the view that, well, because Hillary wasn't prosecuted, no one can be prosecuted. My view is, okay, if that's the rule, can be prosecuted. My view is, okay, if that's the rule, that's the rule. Let's apply it to everybody. And if you look at that rule here, is there clearly intentional and willful mishandling?

Lots of evidence. Are there indications of disloyalty? No. But are there efforts, indications of efforts to obstruct justice? Yes. So So in my view, we saw evidence of intentionality and evidence of obstruction. And under this test, this indictment is proper. But I'm only applying this test because I want to treat Trump, Pence, Biden the same as Hillary even though i think hillary received too much consideration so that's where i am and if there's evidence of intentionality and obstruction with pence or with biden i think pence has already been cleared but with biden there's a special counsel looking at him now um then prosecute but it's a it's a tough thing sarah because i have to acknowledge completely totally openly i think hillary should have been prosecuted but i also do not think that the rule

going forward can be well because hillary wasn't prosecuted people who engage in more egregious misconduct should not be prosecuted also okay that's my general overall okay let me tell you let me tell you my reaction to it because it reminds me of the judicial confirmation wars and uh this is way more serious and i i'm only comparing them in the sense of the sort of tit-for-tat nature of them and where that landed us which is punchline in not no good place in my view yeah yeah and so what happened uh in the wake of the bork hearings is like oh there's a new standard we now get to block people just based on the fact that i don't agree with like their liberalness or their conservativeness cool then let's do that moving forward and we got so far away from um the president gets to

nominate a judge and if that person is qualified to serve as a judge the senate should advise and consent to that nomination and that person should be confirmed and you know during the kagan thing and i think i've talked about this before i came out as a conservative and said that I thought Kagan was qualified to be a Supreme Court justice, even though I would probably disagree on how she would vote on the outcome of cases a lot, most of, many times. But that I thought we should be voting yes on qualified nominees and that if I were a sitting U.S. senator, that's why I would vote yes on Elena Kagan's nomination because she's qualified. And David, it feels a little bit like what you're talking about. Because I get it. Unless everyone's willing to play by the same rules, one team shouldn't keep playing by the nice rules while the other team plays by the mean rules. And yet yet that to me is sometimes what's required i'm sorry that hillary clinton wasn't charged i agree with you david and i think that actually she meets the

standard that comey laid out i think there was evidence of willfulness and so it's sort of a joke to lay out those prongs um when i think the evidence for her willfulness would have been tough um to get beyond a reasonable doubt with 12 jurors for what that's worth but i think there was evidence of willfulness nevertheless and perhaps there would have been more if they had tried to find more potentially um i mean she didn't accidentally talk about that stuff on her private email no and that's right and so here what they have on trump was easier to get more egregious all of that stuff but i guess i don't agree that just because hillary clinton wasn't charged that means we're never charging people again i don't like where that ends up. That ends up with nobody becoming a judge. Sorry to keep mixing the two metaphors

together. But sometimes you have to stand and say like, nope, this has been a bad way to do this. And so we are going to start over. And I wish that were a realistic way to think about this. I understand it's not. So now we'll move on from my happy way and go to like how life works uh so a i think even under the comey standard hillary clinton came very came very close to meeting it with the evidence they had could have probably come much closer if they had pursued the willfulness arguments further i didn't think they wanted to charge hillary clinton and so i think they were coming up with sort of their best like well we don't have like beyond a reasonable doubt on willfulness so let's go with that and let it go and move on fair enough and you know before we

get tons of emails and stuff uh there are people in the leadership of the fbi who didn't want donald trump to win and therefore wanted hillary clinton to win there are people in the leadership of the FBI who didn't want Donald Trump to win and therefore wanted Hillary Clinton to win. There are people in the leadership of the FBI who thought Hillary Clinton would win regardless of who they wanted to win. They thought she would be their next boss. And there's plenty of people at the FBI who voted for and supported Donald Trump. So it's ridiculous to paint FBI agents, including those who are working on this case with too broad a brush. They fall into all three of those categories. Want Hillary to win, assume Hillary will win, want Donald Trump to win. There were probably very few people

who assumed Donald Trump would win. Very few in that. Yeah. But there's also, David, no question that the evidence here meets any standard the comey standard the pre-hillary standard the most egregious standard you could come up with yeah i mean they literally are caught on tape, on audio, saying like, hey, I am doing a crime. Do you know that I'm doing the crime? And all of these things that may mean that I'm not doing a crime, I just want to be clear, those don't apply here. The documents haven't been declassified. in this i am very um sympathetic to is maybe the best word to the arguments that there's been a double standard and that donald trump has been the target of investigations since 2016 they've been coming after him the hillary clinton campaign uh spent lots of money to investigate him, the Steele dossier, etc. That there have been investigation after investigation into Donald Trump. That Hillary Clinton was treated differently.

I'm sympathetic to the idea that I want your reaction to. That this is a Democratic administration with their head of the executive running again for reelection. This is the leader in the polling, at least, of the other party for that nomination to run against him. And they just charged him with a crime. Yeah, I don't think that's great for the country. I just don't know what you do when the evidence is this overwhelming, even though I'm incredibly sensitive to and sympathetic with the argument that there's a double standard, that this is bad for the country, and that Donald Trump has been the target of partisan and nonpartisan

and every other type of investigation for years now. Yeah. So let me just, can I just say what I would do if I was king of the universe? I would, if I was president, what I would do immediately is press the reset button on all this classified information nonsense. you know, if I'm AG, I'm issuing a memorandum saying, here's our standard for prosecuting and it's the statute. It is not some Comey standard or whatever. But I also think at the same time, once you have the Comey standard articulated, released, published,

until something else, until there's a new standard articulated, you got to run with that. And then, but the bottom line is, once you see this evidence and once you read the transcripts, it, if you're not charging that, what are you charging? That's right. Then there is no willful retention. And by the way, I just want to say that when you say, if I were the king of the world, all I'm hearing is Jeremiah was a bullfrog. And like, if I were the king of the world, I tell you what I do. And your answer was not, I'd throw away the cars and the bars and the war and make sweet love to you. That wasn't at all where you were going. No, it was, I'd have the OLC issue a different legal opinion. It doesn't, it doesn't rhyme as well well and i and that also makes me a little less exciting i think and and and might explain why i'm not in contender to be king of the world

or president or anything like that but yeah it's but i i think, and also to this point of, I'm 100% with you. To have the executive branch of the current president, led by the current president who's running for re-election, prosecuting his most likely rival for the presidency is, that's dreadful. That is dreadful. presidency is that's dreadful that is dreadful but the reason why we're here is not because of joe biden the reason why we're here is laid out in all of the that the prime reason obviously joe biden or obviously garland had to appoint the special counsel etc etc cetera, et cetera. So there, but if you're wanting to, if you're wanting to look at the true source of this unbelievable tension,

it lies with the person who chose to brazenly defy the law. Can we just talk a little bit about DOJ protocols here? Since you mentioned uh the relationship between joe biden and the department of justice so the white house said they were not informed in advance of the indictment coming down um and i got a couple messages that were like nobody believes that for a second didn't joe biden have to sign off on this nope nope so under the uh regulations involving the special counsel the attorney general absolutely had to be informed and approve um this indictment garland had previously said he

would defer to whatever jack smith wanted to do i hated that i thought it was passing the buck the point of a special counsel is not to have an independent counsel and some free-for-all. The point of a special counsel, well, and we can argue whether there is a point to a special counsel, that's a separate conversation to have someday, perhaps in this series of emergency podcasts, no less. But for all the criticisms of a special counsel, it is still supposed to be politically accountable to the Attorney General. In the case of Mueller, he was accountable to Rod Rosenstein, who was acting Attorney General. Remember, he was dagged by confirmation, but acting Attorney General over the Russia investigation. Here, Jack Smith reports to Garland. Garland had to sign off on this. So don't, I don't want any buck passing that like this was just Jack Smith doing Jack things.

He was special counsel, not king of the world, as David might say. That being said though, no way DOJ told the White House about this. Why? Because they're political appointees and they know the White House wants nothing. They want all deniability and not just plausible deniability.

They really don't want to know this. And therefore, the Department of Justice was never going to tell them this ahead of time for the exact reason so the White House could say, we did not know about this ahead of time. So I absolutely believe that whether that's a good thing or a bad thing is a separate conversation. But I assure you, they did not know. And this brings me to some historical thoughts, David. Gerald Ford pardoned Richard Nixon. Jimmy Carter commuted the sentences, I believe, of various people involved in Watergate.

I think some of the White House plumbers got their sentences commuted by Carter. So we have both the president of the same political party doing some pardoning. We have the president of a different political party doing some commuting after a guilty plea and some amount of time served. All right, if you were king of the world on that, what's Joe Biden supposed to do when this

is his main political rival running against him for the white house okay so that this i'm so glad you brought that up um so i have done the trump years have caused me a rethink because i used to be absolutely convinced that Gerald Ford did the right thing when he pardoned Nixon, the country needed to, are you about to, Oh my God, we are going to diverge wildly.

All right. I'm listening. Okay. Okay. So I, I was quite convinced that Gerald Ford did the right thing. Um, the country was moving on from Nixon.

Um, you had Nixonixon had resigned the system seemed to be working uh in the sense that republicans had asked nixon to step aside nixon had stepped aside stepped aside we had a new president the nation wasn't divided like we're divided now there was no january 6th but there was still you know a lot of loyalty to Richard Nixon amongst core Republican constituencies. A criminal trial would have been traumatic. So I was like, okay, yeah, pardon him. That's right.

The commutations, I had less what we've done for a long time is going back to Ford and the pardon, going back to the Democrats and the lockstep support of Bill Clinton when he committed perjury, continuing on to Donald Trump and two impeachments and mostly lockstep Republican support, impeachments and mostly lockstep Republican support is we have set a series of precedents that would lead a person to believe that presidents are just different. They're just different. And I think that is a root cause of an awful lot of problems that we have now is this sort of view that presidents, they're just different. They're just different in the way we're going to think about the law. They're just different in the way we're going to think about the law. They're just different in the way we're going to think about character. They're just different in the way we're going to think about it matters on a whole spectrum of things. And so I'm of the view that maybe we should have just gone ahead and prosecuted Richard Nixon to say very clearly,

not different. We've prosecuted governors. We've prosecuted federal judges. We've prosecuted senators, members of Congress, a vice president of the United States, not different, dude. You get to be a defendant just like anybody else. So that's my case, Sarah. By the way, I do think that this indictment reads a little like the White House plumbers in terms of the total, both hilariousness and ineptness of the shenanigans that are being described, except instead of like G. Gordon Liddy running around like an idiot,

it's literally the president and like a random former military aide hiding boxes in the shower. I mean, oh God. Okay. Strongly disagree. Oh, I can't wait. Listeners, you need to adjudicate this in the comments.

Ford absolutely did the right thing by pardoning Nixon. It was... I hear you that it started this precedent of maybe presidents are different. But frankly, like, it was the only way in so many respects that I think the country was going to be able to move on at that point. The problem here, as you noted, is that the reason that Ford was able to pardon Nixon is because the system had sort of worked itself out, i.e. the Republican electeds had turned on Nixon, Nixon had resigned, there was no coming back of Nixon. Biden can't pardon Trump and then have Trump run against him.

Like that doesn't work. And there's none of those other things that have happened. And so I don't think Biden has a choice. I know there's all this like fantasy stuff of like, well, what if he agreed not to run and then he pardoned them? Or what if he was convicted? Like that's not going to happen. I've also heard the fantasy leagues of like what plea deal can doj take look doj would take a guilty plea i think

but they ain't gonna get that offer no uh we don't need to play a lot of fantasy baseball with how this is all gonna go down um but yeah strong disagree that that on ford and nixon i think that's that was the absolute best way for that to happen understanding that it was going to ruin ford's career um which it you know largely did yeah i mean i i think it's the kind of thing that i fully recognize that what i'm doing is absolute Monday morning quarterbacking based on some developments in the future that I don't think are reasonably foreseeable. Right. You know, so from the Gerald Ford standpoint, you're not sitting there thinking, well, I need to drop the hammer on Richard Nixon because, you know, in about about 50 years we're going to have

maybe the craziest person ever to occupy the Oval Office and he's going to kind of even get like a cult around him and people are going to feel like presidents are immune for like so I get it I get it my view is not blaming Ford

my view is unforeseeable events cast ford's decision in a new light um still disagree but i hear you so okay let's talk about what's going to happen next trump will be arraigned on tuesday in miami the judge presiding is judge eileen cannon which is um david there's there's some times where I'm like, no, we're not living in an alternative multiverse system. This isn't being written. I'm not in purgatory.

And then Judge Cannon gets assigned to this case and I'm at a loss for how to not think that. Like, how can you not believe in a higher power it just may not be the higher power that you've been describing to me david there are spiritual forces at work it's just not the ones we want so trump trump will be arraigned on Tuesday. In that sense, I think it will look similar-ish in terms of perhaps the circus aspect to what we saw in Manhattan. But this will be even more contained.

There's no cameras in this courtroom. So I think there'll be less actual circus, even if I think being circus outside the Miami courthouse will be quite tent filled. But from there, we've got some questions, right? Because Trump has once again changed legal teams. Two of his attorneys resigned. Trump then announced that his attorney in the Manhattan case is going to represent him in this case and a, quote firm yet to be named which means a law firm yet to be hired uh there's rumors that trump has asked various attorneys in florida and they've said no

can't imagine why they're turning down that case but the biggest question and the one that we can't answer because we don't know who his attorneys are the fact that he doesn't have a consistent legal team makes this really hard to gauge at all this when when will this all go down and how quickly can it go down and will it be resolved before the 2024 election um if trump wanted to move quickly yes is the answer under the speedy trial act this thing could go zip zip zoom yeah the and and jack smith gave a very very short press conference if that thing lasted more than three minutes i mean i should have said an egg timer to it but he basically said we're game for the speedy trial

act trial of the century like let's go fast um and it's the you know it's in the interest of the accused and yada yada i think the the accused might have some different thoughts on what's in the interest of the accused and yada, yada. I think the accused might have some different thoughts on what's in his interest. Because again, politically, I think that Trump is A, better off not being in jail on election day. True. I don't know.

I don't know. Hot take, hot takes. Some people are going to disagree with that. Eugene Debs managed to get a million votes. What are you going to do? But I do think, I think he'd rather not. And two, politically, he is now going to be able to soak up all the oxygen for as long as he wants while this is pending. And that hurts Ron DeSantis, his number one rival currently, at least for the Republican nomination. So as much as for our emergency serial podcast that will now be ongoing, that I wish this would move quickly. I don't know. Another big question for me

is what types of evidentiary rulings, et cetera, could Judge Eileen Cannon be asked to make in this case? How many of them are going to be appealable on an interlocutory basis, meaning you can appeal them right away, which A, could delay things, but also B, would get it fixed before trial, versus how much of this is just going to have to wait until after the trial. But David, I'm going to tell you one thing I think about that, which is, hot take, I think it's a really good thing that for as overwhelming as the evidence appears in this indictment,

for the sort of balance of the country watching this, great. Let's have a judge who loves Donald Trump and wants to bend over backwards for him. She was the judge, of course, who assigned the special master earlier that you and I were like, say what now? It was wild. It was overturned on appeal

as quickly as humanly possible. I've never seen an appeal move so fast. So, okay, maybe she throws out some of the evidence maybe she rules against the government on some things that you and i are going to disagree on and they could even get overturned on appeal and trump still then got convicted or he wasn't convicted even i would argue either way that that's probably not a bad thing well and and it's also the trial is going to be in South Florida, which is Trump's home.

Now, you know, this is not a blue, blue, blue area anymore. You know, where, where Trump is,

the South Florida area is now much more politically diverse. This is not, you don't have the option of saying, well, it's a Manhattan jury or it's Washington DC jury. But I'll tell you this. If I were Trump's attorney, right before I resign because of ethics problems or I'm indicted, I would tell him, Mr.

President, there is no way you want to go to trial before the election. Why? Well, if you win, you run the DOJ. Drop, you can instruct the doj to drop the case um if you lose you go to joe biden and you'll at least have a chance to say look i'm not running again the country needs to get behind this and make your case for some sort of pardon after you've lost. But if you go to trial, and yeah, if you win your trial, it could catapult you into the White House. If you lose, you might be reporting to federal prison

in, say, September before the first debate. That's a big problem. So yeah, I don't think there's any way he should, you know, he would go for a trial rationally before the election. But who knows what his attorneys will tell him when he has some. Yeah. But let me ask you, I know we're on the Advisory Opinions Legal podcast, but I mean, come on. We have somebody who ran a presidential campaign as the main host here. So got to ask you this. Politically, you've just been hired by Ron DeSantis. And he says, what do I do now?

now and and let's say you've just been brought in today do you tell him that this statement that the statement he made yesterday which i'll read on twitter the weaponization of federal law enforcement represents a mortal threat to a free society we have for years witnessed an uneven application of the law depending on political affiliation why so zealous in pursuing trump yet so passive about hillary or hunter theSantis administration will bring accountability to the DOJ, excise political bias, and end weaponization once and for all. You say, yeah, that was good. Let's stick with that. Or do you say, you know, maybe if we're just backing Trump,

nobody's going to see the logic in going with not Trump. What's your advice? nobody's going to see the logic and going with not Trump. Um, what, what, what, what's your advice? Okay. You are asking me as a hired gun for Vonda Sanchez, not Sarah, not Sarah. I just want to be clear.

Yep. Yes. Yep. This is, this is you in pure mercenary mode. You're just cashing checks. Yeah. Just, yeah.

Hell yeah. Um, so a, i love that statement b my next statement is and i'm gonna wait a few days i want to let this cool down i want the arraignment to be done i'm gonna stick with that line for several more days now but when that cools down a little, my next statement is going to be something to the effect of, they're never going to stop going after him. If he couldn't stop them from going after him while he was president, if he couldn't stop the election from being stolen from him while he was president, and he couldn't get all this stuff done while he was president, what makes you think he can do it out of the White House? How can he prevent the election from being stolen from him how can he get all this stuff done with a second term that he couldn't get

done in a first term uh he he can't as frustrating as it might be as unfair as it might be they are going to prevent him from winning this election one way or the other he just can't win so let's find someone who can win and let's find someone who can serve two terms because that's how long it's going to take to undo the damage from the Biden administration. That's what my next line is. All right. Hired gun, Sarah.

You've just gotten a call from Tim Scott and says the million that Ron DeSantis is paying you is not enough. I'm giving you 1.5. Now come in. Is it the same advice for a Tim Scott as it is for Ron DeSantis? Very different. Oh, go, go.

Very different. Because with Tim Scott, I'm going to say, sir, you've paid me an absorbent sum of money and I appreciate it. I'll tell you what I'm going to use it for later. It might be similar to this vacation I was on now. For those hearing the water in the background, I can see the ocean. This was my first vacation in two years, but emergency pods were more important. Man. So everyone, all of you listening, oh, husband of the pod, an apology. He is sitting in the room right now on his phone. He's waving. He's waving. He hates you all, FYI.

Okay, so Tim Scott, thanks for the money so I can redo this vacation. No, sir, I assume that you want to maximize your options. You're not all in on presidency or nothing. You want presidency, if that happens, great. Vice presidency, great. High that happens, great. Vice presidency, great. High cabinet position, great. Or worst case scenario, maximizing your appeal with a Republican audience for speeches, book sales, and future political opportunities. I want you to position yourself as a defender of Donald Trump. Not any of the specifics of the charges against him,

but of the look at how they are wronging him and sort of the polarization, the political problems with this, us versus them optics, that's the line I want you to go down. You know, and to listeners who are shocked and appalled at what Grifter Sarah is saying, just shocked and appalled, but let me just, there's this, there's a short piece that Charlie Cook wrote in the corner at National Review. And the headline just says it all.

Again, colon, aren't you all tired of this crap? And it basically makes the point that this, and he starts off, in the wake of the federal indictment against Trump, which, unlike the brag nonsense, is absolutely devastating. I'll ask again, aren't you all tired of this? Don't you want to get past it? Don't you want to do some politics for a change? How much longer do we all have to put up with this garbage? Which is a really fair question. Especially when you've got a lot of other options. You've got DeSantis, you've got Tim Scott, you've got Nikki Haley. You've got a bunch of people who would all be better than Donald Trump in the Oval Office.

So I thought, hmm, I want to see how the National Review readers, who are not exactly the core of MAGA, right? How are they responding to this? So I did what I don't normally do, Sarah. I clicked the comments. Oh my. And here's the very first one. If you're tired of this crap, they win. Trumped up charge after charge. The Russian disinformation is a major crime on those who persecuted him. I will vote for Donald Trump with my dying breath because I don't trust that anyone else is not indicative of the mindset that I encounter in Trump voting Tennessee. They just can't win. And if I turn my back on Trump, they win.

And so that's what you've got a lot of GOP primary contenders. That's the mindset they're battling. And then if you turn on Trump, here's the other thing that I think is really important for people to understand. Nothing you've done for the conservative movement before matters a bit. Nothing. No, this isn't about policy. This is war.

And that's why the pivot that Ron DeSantis has to make, the timing of that pivot is everything. If he came out today and said, Trump can't win, so we need someone who can serve two terms, that would not work. You've got to stick with the current line and you've got to

find the right moment. It's like hopscotch, watch the ropes, watch them cross each other and jump in at the exact right moment for that pivot. Tim Scott's stuck. I think he's going to have to be the what about guy. I'm not answering any questions about the indictment against Donald Trump until Joe Biden is indicted for keeping classified records next to his Corvette. Just stick with that for as long as it takes, which is right. Which is forever. Yeah. I was just going to say the other complicator here, Grifter Sarah, is that you're probably telling DeSantis that, unfortunately, sir, you're probably going to have to do this two more times there's the january january 6th part of the special counsel investigation and then there's the georgia

part so if these things keep but see i'm excited for the january 6th part because you and i are probably going to diverge um i don't i don't think that jack smith will charge it that being said, Jack Smith by reputation, he has never not charged someone. So you may end up winning that because Jack Smith is a very talented prosecutor who likes to get his guy. But I, and we talked about this at length in previous long ago episodes about whether I think you can get anywhere close to that incitement or anything else related to January 6th. I think no. You think yes. Awesome possum.

Let's see where that lands. Very different than the Georgia charges, which we're expecting here. They basically said end of summer. i don't know if that means summer as i consider it end of summer is august or if they mean end of like the lunar summer you know the solstice which would be end of september um but then they went in they moved up there they they basically said okay our window is moving earlier in the summer. So as I understand it, the window now opens in like mid-July. Like July 11th is sort of the opening of the window.

I just assume they'll do it the next time I take a day off. So I don't have one planned right now, but I'll think long and hard about that. And then we can assume that it will come that day. Well, I have a little mini vacation beginning July 13th. Oh, perfect. So the 14th, 15th is probably when it'll happen. Yeah, no question. No question.

Evening of the 13th, it's going to drop. And then we'll do a live pod from a campground in rural Tennessee. Well, I really hope you guys could hear the ocean this whole time in the background. We're in Puerto Rico. It is beautiful. There's little happy green parrots and green iguanas. I didn't know iguanas climbed coconut trees, but boy, do they, David, with gusto all the way to the top. Isn't it 4,000 degrees in Puerto Rico right now?

It actually is, yes um and my sunscreen did not do the trick i have a very embarrassing snorkeling burn going on right now but worth it so worth it um so yeah with that i'm going to go hop back in the ocean the sun has set and so have i thank you for joining us for this emergency pod. We will be back with a regular episode on the Supreme Court opinions from last week, including your Jack Daniels dog toy, what, number two on your Tennessee rug or whatever.

And we've got a little aggravated identity fact with a great gorsuch line that you don't want to miss and then finally of course the surprise opinion so far of the term alabama redistricting alabama loses so plenty to talk about at the next regular episode but this has been an emergency podcast for the trump indictment by federal prosecutors out of the department of justice special counsel investigation thanks david We are actuaries. In a world filled with unpredictability, we use our math skills to navigate uncertainty. Actuaries make a difference in people's lives across industries and the world. Actuaries have the freedom to work anywhere.

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