Strict Scrutiny - Trump Arraigned and Arrested (BONUS episode)

Episode Date: June 14, 2023

Former President Trump pleaded not guilty to 37 counts in the case against him for allegedly mishandling classified documents. He was arraigned on Tuesday at the federal courthouse in Miami, and then he spoke to supporters from his golf club in New Jersey. In this bonus episode, Leah and Kate talk about what to expect for the timeline of the case, reenact part of the indictment by the Department of Justice and more.Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello and welcome to yet another special indictment slash arraignment episode of Strict Scrutiny, which is usually your podcast about the Supreme Court and the legal culture that surrounds it, but it also sometimes moonlights as a podcast about the disgraced former president

who's now repeat arrested, repeat indicted. Anyways, I'm still your host, Leah Littman. And I'm still your host, Kate Shaw. We are without Melissa for this emergency episode, but don't worry, she'll be back in our next regularly scheduled episode. Okay, so as Leah just mentioned, we are bringing you a one-off emergency arraignment day. That's the second arraignment day.

So this is not Trump's first arraignment day, and it may not be his last arraignment day, but it was an important arraignment day. And so we are bringing you an episode that, again, is more about the law and the legal culture, broadly speaking, than the Supreme Court. Although, who knows? Down the road, it could intersect with the court. But let's dive right in. Donald Trump was indicted in federal court in Florida on 37 counts related to classified secret documents, although that description conceals an awful lot of details we will unpack. But at the time we recorded the live episode, the indictment had not yet been unsealed. We actually unboxed the indictment at the happy hour after the live show. And yes, there is video of that if you'd like to watch that. But the video mostly involves a little dramatic reading and then throwing the papers into the air. So we actually didn't read it that carefully at the happy hour. But of course, it's been a few

days and we now have read that indictment very carefully. It does hit different after you've had a Samuel Mojito. I will say that. Or three. But yes, it does. Okay, so you had your Samuel Mojitos. You were able to pore over the details after the unboxing. What, Leah, were your big takeaways? I mean, one is the potty photo seen around the world. And the potty photo is, of course, the photo of the bathroom in which boxes containing classified secret documents that had been ordered to be returned to the federal government were just strewn around Trump's properties like near the toilet. And, you know, we know Republicans are obsessed with what people do in bathrooms. So I'm sure they are going to take this piece of evidence at least very seriously. You know, more generally, there are also photos of the documents and boxes and like the Mar-a-Lago ballrooms where like thousands of people passed through. So those were some things that

really struck me. Security closet with documents spilling out of a box, right? These documents were treated, I mean, Cavalierly doesn't begin to describe the treatment of these documents. You sort of have to see the images to really grasp the conditions in which they resided while they were actually lawfully the documents of the United States government and had been requested with increasing urgency by first the National Archives and then the FBI. So that's essentially the documents. So the pictures are, I think, a big part of the story. But the indictment itself is this, you know, kind of 49-page document that I think is very well crafted to provide an accessible narrative of what actually went on here,

how the federal government tried diligently to get former President Trump to return these documents, and how he responded and refused and induced others to assist him in refusing to just turn the documents over. So, you know, this was what's known as a speaking indictment. It really told a story. It didn't just kind of lay out the basic elements of the offenses being charged, as did the Manhattan indictment that we saw in the April charges regarding the hush money payments to Stormy Daniels. This is a really different document. And I think when special counsel Jack Smith held his very short press conference on Friday, he really encouraged people to read the indictment for themselves.

And it's clearly written in that spirit. Like, people should be able to read and understand it. So I really do want to encourage listeners who haven't read the document, like, to do it. There's actually even, like, a YouTube and several podcasts have done readings of it. So if, you know, you take in your information through your ear holes, you can do that, too, with the indictment. But I think it's really worth reading or taking in in some fashion. Okay, but Leah, okay, but beyond the pictures, like what are the big highlights of that document? We do not have the bandwidth to do a live reading of the entire indictment. I did, however, want to do a brief reenactment of one scene from the indictment, which is a July 2021 meeting at Bedminster between former President

Trump, a writer and a publisher and some staff members detailing a document about an attack that had been prepared for the president. And there is an audio recording of this conversation slash meeting. Just bear with me for a reenactment. And then I will... Wait, just what? Okay, I'll be Trump. I'll be Trump. But who's Trump? Oh, wait. So am I writer and staffer? Yes, you're writer and staffer. I volunteer to be Trump. Okay. Okay. All right. I'm excited. Let's do it. Clears throat. By the way, isn't that incredible? Yeah. I was just thinking,

because we were talking about it, and you know, he said he wanted to attack country A, and what you did. This was done by the military and given to me. I think we can probably, right? I don't know. We'll have to see. Yeah, we'll have to try to... Declassify it. Figure out a... Yeah.

See, as president, I could have declassified it. Yeah. Bracket. Laughter. Now I can't, you know, but this is still a secret. Yeah, bracket, more laughter. Now we have a problem. Isn't that interesting?

Okay, end scene. Okay, the reason why this is so bananas is it's basically like they have Trump recording a statement that he fulfills various elements of the crime that he has been charged with, including some of the more, let's say, hypothetically difficult to prove elements, like knowing that he actually had to return this document and that he did not have the legal authority to give himself the legal authority to possess it. It's an amazing kind of, I think you said this on Twitter, Leah, just like, you know, the challenge is how many elements of an offense can you admit to in a single conversation that we just, you know, reenacted? It's kind of that. And it very successfully,

I think, shuts down a defense that it seems like one of Trump's lawyers today outside of the Florida courthouse, you know, again, returned to this, the president could declassify anything he wants defense, which as an ex-president and hadn't exercised that authority as president. It's kind of like signed, sealed, delivered in this conversation. It's wild. And the context, because I think we maybe didn't set it up, is that this is, you know, so one of his former staff members is writing a memoir. And they're talking about allegations that late in President Trump's term, he contemplated military action against a third country that's not identified in the indictment. And he basically is saying to these third parties, like writers and editors, I've got the kind of proof that the story that kind of disparaged me or cast me in an unflattering light isn't true. And so he was just using it essentially to kind of shore up his own

record as president. So it was entirely just about kind of self-aggrandizement. And, you know, he was happy this document and basically saying, stay back, as if like classified information could be shown at like a sufficient safe remove. From like six feet away. Then it would be all right. So that is kind of bananas. So he can declassify documents with his mind. With his mind, uh-huh. And he can also set up like a 12-foot perimeter, you know, on the outside of which people can look at classified documents is what I understand he thinks the law to be. I think that's basically how it works in his mind.

Cool. Cool. So we have all of the allegations that he's retained these documents, and then there are these incredibly damning exchanges that are recounted in the indictment. We should say there are 37 counts in the indictment, and the first 31 are these willful, you know, retention of national defense information. So these, the first 31 are really the kind of document-related charges. And then there are accounts of withholding or concealing documents and making false statements and conspiring to obstruct justice. And that kind of ladder, kind of cluster of charges sort of grows more out of the kind of response to the efforts of federal officials to get these documents back, right? First requests and then a subpoena and finally an actual search warrant. But between the subpoena

and the search warrant, because again, the sort of the narrative that you see in the indictment is that he is resisting as the federal government gets increasingly urgent in its efforts to retrieve these documents, using increasingly coercive legal efforts to do that. And he resists harder and harder as the government really does seek more forcefully to get the documents back. So after he gets the subpoena, the indictment basically alleges that he kind of floats to his lawyer, could we just tell them we don't have any? Do we have to respond? You know, explicitly, like, these are his words as it seems recounted by this lawyer. He then has his aide, Walt Nauta, even though he doesn't even, Trump clearly doesn't want the attorney to conduct a search. The attorney does. He finds some documents. Trump seems to basically say, without explicitly quite saying, go through the documents you found and if there's

anything really problematic. And he kind of makes a plucking motion and suggests, it seems, get rid of the document without, again, explicitly saying it. So these are all the kind of items that surround the actual retention of the documents that are described in the indictment. And I think it's important to understand those efforts and also what he was charged for. As to my mind, it's kind of like the federal government begging him, begging him to return the documents so they won't charge him because they don't charge him with illegal possession for having the, you know, almost 200 documents that he turned over to the archives when asked to return them. You know, the Lawfare blog reports that from the dates listed,

it appears that, you know, 21 of the documents that he was charged over were recovered during an August search, while, you know, something like 10 of them were among those handed to the FBI by Trump's lawyer, you know, at the beginning of June of last summer in response to the earlier subpoena. So, you know, this, I think, disparity, you know, him not being charged with possessing the documents that he returned upon request and being charged with retaining the documents that he basically refused to turn over, relates to something we talked about during the last indictment and arraignment episode, which treated unfairly because he's a former president, the reality is he is getting a ton of leniency because he is a former high-ranking political official. They are not prosecuting, right, public and political officials for illegally retaining these documents before returning them, even though they probably charge normies or like less high-profile federal employees with this same very conduct. And again, it's the fact that he didn't return the documents upon repeated requests, escalating coercive measures from the federal government that distinguishes

his case and debunks his defense, which seems to be, quote, everybody does it, even though nobody else, nobody else refused to return these documents, you know, secret classified documents. When it's pointed out, you know, we think you have some. Yeah, the facts are just to the extent that, at least in the court of public opinion, what Trump seems to be litigating is this, I am being unfairly singled out when other former officials also had classified documents. I think the course of conduct described in this indictment is just light years away from what we know to have transpired with Hillary Clinton, with Mike Pence, with Joe Biden. I mean, just to take

Biden and Pence, like, they had some classified documents. Like, when you leave the White House, you take boxes, and those boxes should not contain classified documents, full stop. But if inadvertently there are some classified documents in those boxes and you come to learn of that and turn them over to federal officials, you will not be charged because intent is an element of this Espionage Act charge or set of charges that Trump is now facing. There's just no indication that any of these other officials intentionally retained and there's definitely no evidence that any of these other officials intentionally retained, and there's definitely no evidence that they obstructed in the way Trump did. And so they're just not comparable scenarios whatsoever.

So Trump is still speaking as we sat down to record this and as we are recording this, but we have some flavor for what he's saying. So let's listen in since part of it relates to the Espionage Act that you just referred to. Charging a former president of the United States under the Espionage Act of 1917 wasn't meant for this. An act for a crime so heinous that only the death penalty would do and threatening me with 400 years in prison for possessing my own presidential papers, which just about every other president has done,

is one of the most outrageous and vicious legal theories ever put forward in an American court of law. The Espionage Act has been used to go after traitors and spies. It has nothing to do with a former president legally keeping his own documents. I mean, a lot of former federal officials charged with the same offense would beg to differ. I mean, this is a charge that, right or wrong, like I'm not here sort of defending all the charging decisions made by the federal government, but a lot of people have been charged with precisely this conduct. It is, yeah, I mean, not surprisingly, that is not would like embiggen the number of years he might be facing in federal prison, like to, I don't know what. But sometimes even if he's convicted on all,

now it's true there's a 10-year maximum sentence in theory for each of these charges or at least espionage act charges. But even if he were convicted, the idea that you would actually serve or be sentenced to serve consecutively, like in a row as opposed to concurrently, all of these sentences, like most people that I've sort of seen really crunch these numbers seem to think we're talking, like, at the outside, like a 5 to 25-year period, which is real-time, not at all suggesting otherwise. But I, you know, the 400 years point is a rhetorical one, but doesn't actually reflect the legal jeopardy. Yeah. So the 400 years relates to the statutory maximum. And so the statutes set these ranges, the maximum sentences, but there's this also process in the federal system, the federal sentencing guidelines that set a more specific recommendation for particular defendants regarding their prior conduct as well as the specific offense. And that guideline range is not up to the maximum. And also based on past practice,

you can get some estimates. And yeah, it's not exactly, you know, a settled practice to be 400 years. I did want to highlight his statement here relies on the idea that these are his own presidential papers, which is basically the legal theory that, you know, his lawyers were pressing before the Judge Cannon earlier iteration of this case that the 11th Circuit smacked down, right? Like, he does not possess the classified documents of the United States. Like, he does not have a personal interest in looking at these, you know, attack plans, right, that generals prepared for the office of the president. Like, that's just not how this works. Yeah. And just to kind of unpack a little bit the argument that he seems to be alluding to here, he's basically, so there's a statute passed in 1978, the Presidential Records Act, that's a post-Watergate measure that responds to some

of President Nixon's abuses with respect to presidential papers and basically creates a statutory regime in which presidential records are the property of the United States and the people. And so the National Archives keeps them and they go into, you know, the archives and then they're available for researchers. And so we actually have a full picture of our history. But there is something called personal records that presidents don't have to turn over. And that's like if you're the president and your grandkid sends you a birthday card, like that doesn't actually have to go to the National Archives. That's okay to retain as a personal record. No one has ever suggested, nor would it be remotely consistent with the Presidential Records Act, that the kinds of

documents at issue here could conceivably be understood as personal records under that statute. And there's just a million reasons that that argument is a non-starter. One of which is these aren't even documents that the White House produced. These are agency records. They're records that belong to the CIA or the Defense Department or the Department of Energy in one case. So different federal agencies made these documents. So they're actually not presidential records even in the first place. And if they were, it still wouldn't be the sort of thing that the president could classify as personal records. But I think watch that space because this, I think you're exactly right, Leah. This is the argument that they are, and we saw it in the earlier Judge Cannon litigation, trying to, you know, suppress the fruits of this initial search warrant, that they're going to try to make this argument that somehow the Presidential Records Act provides cover. And I just, you know, I really

hope the judge in this case is less receptive to those arguments than she was in the earlier iteration. That's going to be some really textual-ish claims if they're going with the Presidential Records Act. So we've already alluded to this, but Judge Aileen Cannon was randomly assigned to this criminal case. Judge Cannon was also the judge that overheard basically prior litigation related to the investigation undergirding this case. That was when Trump's lawyers effectively asked a court to stop DOJ from using the documents that they had seized in the search warrant in furtherance of this investigation. So I guess what should we know about how it came to be that Judge Cannon was assigned to this case, and is it possible that this case could be reassigned away from her?

I mean, a couple of things. One, there actually just aren't that many active district court judges in this circuit, partly because this is a state with two Republican senators and the Biden administration just has not been able to fill some of the vacancies in the district bench there because of this practice of what are so-called blue slips, like basically the home state senators have to agree with the president's nominations to the district court. And so there just are, you know, not a huge number of active judges. So she had good odds of drawing this case. What the court officials have said publicly is she was not assigned this case because it's related to the earlier litigation that you were just talking about, Leah. Sometimes that is the case, right?

Judges get assigned cases that relate to earlier matters that they have handled. But at least as we have been told by this court, that actually wasn't the case here. It was just pure random assignment. But like, yikes, as pureed all the time. This really stood out even in the context of recent opinions that have, you know, emanated from various courts. Like, this was a truly lawless opinion that I think kind of across the ideological spectrum was condemned as baseless. And I think significantly, the 11th Circuit Conservative Court, and this was a conservative three-judge panel of that court, I think two of whom were actually Trump appointees, reversed her in kind of one of these, like, are you kidding me reversals that was just like, none of this makes any sense. Like, the order that DOJ can't look at its own records and a special master has to be appointed and this, you know, is going to take us 100 years to actually get through. Like, no, you had no authority to rule the way you did. And so, you know,

we don't have a lot of data points. She hasn't been on the bench that long. Trump appointed her actually after having lost the election in November of 2020. So she's a pretty green judge. But the one piece of evidence that we do have, I think, has to be giving the DOJ prosecutors in the special counsel's office concern, I would say, about how she's going to approach this case. Yeah, real concern because she elected to intervene, right, basically on her own volition because Trump had filed a motion titled Motion for Judicial Oversight and Additional Relief, which is not a real thing. And then she took that to basically inject herself in the case and tell the DOJ they couldn't actually use these documents.

They had ceased pursuant to a search warrant in their criminal investigation. So, you know, there is, of course, some theoretical prospect of recusal, asking the judge to recuse from this case because of some appearance of bias. In reality, there's just no way that's going to happen. I mean, DOJ would have to, I think, request that. That would delay the case. That would likely make the judge not look very warmly upon DOJ, who is trying to act like the adult in this room. There's no way the judge would recuse herself on the basis that her prior ruling was so bad and so lawless no one would think she could behave judiciously. And they had to know when they filed this case here, given the small number of judges, that there was a real chance that they would draw her.

And so I just don't think that's going to happen. Okay, so I think it's almost certainly the case that Aileen Cannon is going to be the judge on this case. So what should we kind of expect about the timeline? What do you think are kind of the best case scenario and worst case scenarios about how long this is all likely to take? to look at similar cases just because, as we were saying earlier, this case is already being given special treatment just in the amount of process and care that it is being afforded. So Florida, you know, has among the fastest timeline in cases in the federal trial courts. It's known as one of the rocket dockets. Though on this particular case, I'm just not sure that it actually will be wrapped up before the election. I think there will be a lot of motion practice, that is a lot of motions filed

about legal issues that will need to be resolved before a trial actually begins or takes place. And it might also be the case that they, the Trump team, you know, want to delay this case, you know, through the 2024 election, you know, and there are going to be lots of motions, legal issues to be filed and resolved. You know, there will be issues of attorney-client privilege because part of the obstruction charges relate to, you know, the conversations he had with lawyers and the directives he gave to his lawyers. In another case, a district judge in D.C. found it was more likely than not that he had engaged in a crime in conjunction with his lawyers and pierced the attorney-client privilege there, but the district judge here will need to rule on those issues.

There will also need to be some review and processes regarding the review of classified documents and rulings on certain legal defenses. So, you know, I think it could take a while. I also wouldn't be surprised if during like the lead up to the trial, we end up hearing more about an order that the magistrate judge issued at the arraignment, which is the no contact order, ordering Trump not to have contact with, you know, the witnesses in the case. And, you know, one of those people could include, you know, the person he is charged with as a co-defendant, Mr. Nauta, and, you know, other employees of the company. And I just don't know exactly how that works, given that, you know, he works with a lot of like personal acquaintances and family members. And so I think that that could also create legal issues

that end up needing to be resolved. I totally agree. So this was actually a condition of his bond. So he had to basically, you know, he signs this kind of bond agreement with some conditions. And one is that he is not to have any contact. And, you know, this all sort of filtered through, there were no cameras or, you know,

audio recording in the courtroom, but people inside the courtroom basically have reported out that initially the judge, it seemed the judge was ordering him to have no contact, right? Barring any contact with any witnesses, including, I think, conspicuously, right, Walt Nauta, who is his valet or body man who essentially staffs him all the time. And after some pushback from one of Trump's lawyers, the judge seems to have clarified that condition as being restricted to contact about this case. So it's not actually a broad no contact order. You know, you can talk about some things to people who might be witnesses in the case, but not about the case. So that I think we think coming out of today's hearing is the condition that Trump is now obliged to abide by. But of course, how to enforce that kind of condition, I think, is an enormous and difficult question. And these lawyers, so there's only two lawyers right now on this case, they're also both involved in the Manhattan prosecution. That's the hush money payments that's set for trial next March. But I mean, you know, Trump is an impossible client. Like, it's going to be impossible for these lawyers, I think, to keep him from talking to people like NADA and other staff members. As you said, Leah, people in his, you know, it's a pretty tight, it's a small operation,

I think. And there's no real distinction, as far as I can tell, between like staff members and friends. It's all like everyone in Trump world is sort of wearing lots of hats. And so he's saying you can't talk to anybody who might be a witness in this case, I think literally might mean you can't speak to a human, because maybe everybody he talks to is a potential witness in this case. Now, maybe that would be a good thing, but I can't imagine that the judge is going to try to actually enforce that interpretation of this order. And so I totally agree, we might see litigation around the actual, you know, parameters that the judge meant to impose as to this part of the order. So Trump's legal team is pretty slim, and he was unable to find a lawyer in time with a security clearance that specializes in national security law. So could that end up complicating his defense

or these proceedings? I mean, is it surprising to you, Leah, that he's having a hard time securing legal representation? You know, that did not shock me. You know, some of his previous lawyers had to resign when he basically involved them, you know, somewhat unwittingly on their behalf in additional federal crimes. He reportedly doesn't pay his lawyers. He involves them in criminal conspiracies. So not the greatest job in the world. There's also, we haven't even talked about, like there's the Evan Corcoran, the lawyer number one, who he's, you know, seeming to kind of direct to potentially manipulate or destroy documents,

you know, again, all as alleged in the indictment. But also there's another lawyer who they bring in and have signed this attestation that a thorough search has been conducted and no more documents have been found. And like, it hadn't. That didn't happen. So like, if you're a lawyer out there and you're reading the way lawyers get treated in Trump world, I think this otherwise really plum assignment, which is, you know, representing

a former president in, you know, a fascinating, you know, case that doesn't have a lot of precedent to guide, you're making, you know, like, I think that self-preservation, I think, will kick in for a lot of prospective lawyers. And I genuinely think it might be difficult for him to find people to represent him. But maybe that's, like, unduly optimistic of me. I mean, you know. There will always be people. There will always be people.

And I hope there are people and good people because better to have, like, a good real lawyer here so as to make these proceedings actually happen in ways that comply with general legal rules and kind of minimize any issues surrounding, you know, an appeal or interim proceedings. But I think it's right that sort of whenever and sort of however he's able to fully staff up his legal team, I think that a combination of all the motion practice that you just talked about, the possibility of, you know, litigation around the parameters of this no contact or limited contact order, you know, all of this, I think, means that we are looking at a pretty long timeline. Classified information procedures also, I think, will complicate things, although maybe some of these documents could be declassified, which I think would sort of accelerate proceedings. But I do think that it is

quite likely that, you know, unless something pretty unusual happens in terms of the pace that Judge Cannon sets, we are not likely to see resolution before the November election. And in some ways, like, now Trump has every incentive to kind of draw things out so that he actually has a chance of securing the Republican nomination, of actually winning the election, and then being in a position, if this still is ongoing, to, you know, find a way to make it go away. He'll have a new attorney general who could presumably fire the special counsel or shut down the investigation. Or if he's somehow been convicted in the interim, he, I am sure, would try a self-pardon, which, you know, is an untested

sort of legal move, but one I'm sure he would be happy to test. So I think that all of these things sort of come into focus if we have not seen resolution before the election. But I agree, given all the factors that we just identified, it seems the most likely course to my mind is we are not going to have a resolution before the November election when people go to the polls to vote for president. And on that note.

All right, so we're going to leave it there. I am sure we will come back to this ongoing criminal case against former President Trump, the second of what could be as many as four, right? There's another investigation ongoing in D.C. into Trump's involvement in the January 6th attack on the Capitol. There is also an active criminal investigation in Fulton County, Georgia, that we could see charges out of sometime this summer. So this may not be our last late night emergency Trump jeopardy episode of the podcast. So stay tuned. Before we go, a quick plug for two more Crooked podcasts. Keeping up with the

flood of news can be stressful. There are updates on anti-trans legislation, the upcoming primaries, not to mention our supremely sus courts. So it's hard to keep up. If 20 minutes is all you have, check out Crooked Media's What A Day, the daily podcast that breaks down the biggest news stories into bite-sized pieces that don't make you want to cry. What A Day is co-hosted by Traevel Anderson, Juanita Tolliver, Josie Duffy Rice, and Priyanka Arabindi. And then Crooked's newest limited series podcast, Dreamtown, the story of Adelanto, is now out. Dreamtown is the story of a small California city named Adelanto, known for its massive detention centers and not much else. When a stranger comes to town with a wild idea, which is to make Adelanto great again by becoming the first city in Southern California to legalize commercial weed cultivation, everything changes.

Listen to What a Day and Dreamtown, the story of Adelanto, wherever you get your podcasts. Don't forget to follow us at Crooked Media on Instagram and Twitter for more original content, host takeovers, and other community events. And if you're new to Strict Scrutiny or just really love this episode, make sure to rate and review us on Apple Podcasts and subscribe wherever you listen so you never miss an episode. And there might be more emergency ones coming your way depending on what the Supreme Court does over the next few weeks. I think there probably will. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman,

Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Raul. Ashley Mizzuo is our associate producer. Audio support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper. Production support from Michael Martinez, Leo Duran, and Ari Schwartz. Digital support from Amelia Montooth.