The Chaser Report - Donald Trump: (Un)Classified | David Smith

Episode Date: October 23, 2024

As the US election gets closer and closer, we throwback to that time one of the candidates first engaged in one of his very many lawsuits. Dom is joined by David Smith, who has all of the deep info on Trump's classified document case. Hosted on Acast. See acast.com/privacy for more information.

The Chaser Report is recorded on Gadigal Land. Striving for mediocrity in a world of excellence, this is The Chaser Report. Hello and welcome to The Chaser Report with Dom and Charles. This is Dom. Look, got to be honest, Charles and I didn't manage to get our together to record another daily episode today. We're going to think long and hard about whether daily is really viable. But as against that, yesterday, Chaz and I recorded a one hour and nine minute long episode, at least before it was edited, on the US election. Frankly, if you haven't listened to all that, you have no excuse, go and listen to that, finish that one off, and then you can give us a

hard time for not doing a daily one today at podcast at chaser.com.com.com. In the meantime, here is an episode lovingly selected by producer Loughlin. See you. We don't have Charles today, but we do have Associate Professor David Smith of the US Study Centre at Sydney, you need to fill us in on. On the latest going on is in the American election race, which I was expecting to be challenging, I was expecting to be complicated, but I wasn't expecting to involve multiple court cases, including potentially federal crimes, which one commentator suggested might involve hundreds of years of prison for Donald Trump.

David, welcome back to the podcast. Thank you for having me back. Yeah, this is a weird one, isn't it? I can't work out whether this is actually going to finally involve consequences for Donald Trump after many decades of none, or if it's just another charade that will go nowhere. It is weird because it just never needed to happen. Like, he took all of these documents with him, which is illegal, but he's not the only one who's done that.

We know that Joe Biden had documents with him. But he took so many with him that the National Archive actually noticed that they were missing, including classified documents, so documents that could endanger national security. they kept asking for the documents back and he kept stonewalling and lying about the fact that he actually had these documents or how many of these documents he had. And so what should have been really a fairly trivial violation of the law that could have been solved very easily if he had just sent the documents back at some point in the year when they asked for them instead of waiting for the FBI to actually raid the premises to retrieve the documents,

you know, this could have been resolved very easily. But now, as you say, it's escalated into federal charges, which at least theoretically could carry many years in prison, although I think that prison is an unlikely outcome. Yeah, it does seem completely bizarre. I saw a former senior federal judge on Twitter yesterday saying, I don't know why he wanted to fight this to this point. It could so easily have gone away.

but I guess he's just used to not giving in on any legal point ever. But so many strange details, the location of the documents in his bathroom and the photos of the bathroom at Mar-Marilago Bazaar in and of itself. I find it very baffling to try and figure out what the idea was. Why did he bother having this weird trophy room in an overly elaborate toilet? Well, I remember last year when this happened. he and his family were basically saying that these documents were souvenirs. I mean, they were understating how serious the documents were,

but they were basically saying that they were souvenirs. And that appears to be what they were. And what the government is alleging is not that Trump was planning to, you know, pass these on to foreign agents or anything. And there's no suggestion that any of it was exposed to the wrong hands, but that he was using it to impress people, that he just liked having these documents. around. And of course, this has been one of the things that has brought him undone, the fact that

there are recordings of him saying that he had these classified documents that show that General Mark Millie wanted to go to war with Iran. And unhelpfully, to his own case, he actually said in one of these recordings, oh, yeah, but I can't show it to you because it's classified. As president, I could have declassified it, but I can't do it anymore, which kind of, yeah, blows a hole in his argument that he declassified everything before he left. His claim that he's been making, which is that he declassified everything before he left, it's worth keeping in mind his lawyers were never, ever prepared to say that in court or to the media. And that's an indication that it is probably not true, or at least doesn't meet standards

of truth that would hold up in a courtroom and they don't want to perjure themselves. Although, David, you prove, as he claimed at one point, that he didn't think about them at one point, and thereby just purely through thinking about them, declassify them. So at the point where he went, oh, I'd like to take that pack to Mara Lago to show my guests that automatically declassified it. That's one argument he put up. But yes, what an amazing smoking gun. I know this is a classified document.

You can't look at it. I could have desclassified it, and I didn't. I mean, it basically every element that would be needed by prosecutors to satisfy them. them is right there in that one video. Yeah. Now, what can be used in evidence is going to be pretty contentious in this court case because a lot of the federal government's case actually comes from notes and recordings from lawyers.

So one lawyer in particular took a lot of notes on his meetings with Trump. Now, that is something that Trump does not like his lawyers doing. He wants his lawyers to leave as little evidence as possible. of his meeting, but nonetheless, he did that. And normally you would think, okay, but surely minutes of a meeting between a lawyer and client can't be used, right? Because that's an attorney client privilege. But what the government has argued and successfully argued back in March was that because

Trump had misled his own lawyers about the nature and location of the documents, that that attorney-client privilege no longer applies. Something called the crime fraud exception would mean that because he was lying to his lawyer in order to commit a crime, that means that the notes the lawyer took are now admissible as evidence. So that was according to a ruling in March, and that was what enabled the federal government to actually use this evidence in front of the grand jury. Right.

However, it's up to the judge in this case to decide whether that is going to be admissible as evidence in the trial. Well, let's talk about the judge in this case, because this is one of the bizarre details of this a Florida-based process. And I understand that part of the reason why a special prosecutor, isn't it? Jack Smith wanted to have it in Florida was to avoid arguments about whether it should be in Florida. But as a result, isn't there a judge there who Trump appointed, who is incredibly inexperienced

the New York Times reported today, has never done any criminal trial like this at all? And it has already been slapped down by higher courts for massively. favoring the former president in the past case. It doesn't seem like an ideal person to oversee this, I suppose, inevitably appealed case anyway. Yeah, so this is Justice Eileen Cannon, who was appointed by Trump after he lost the 2020 election. Yeah.

And I think there's been some speculation that one of the reasons he appointed her was in anticipation of circumstances like this. I mean, that's actually unusually strategic, if true, for Trump. Yeah, yeah. Well, when it comes to the law and when it comes to using the law for his own ends, Trump's very experienced in this. And my podcast co-host, Chas Lichendello, pointed out last year that Trump has actually repeatedly tried to draw her in various court cases that he's been involved in. So she, yeah, is not that experienced as far as judges go. She was actually rated by the American Bar Association as qualified, which is an improvement.

on some of the people because she'd had 12 years of experience, but it was a bare 12 years. So she graduated from law school in 2008. Interestingly, look, she was at the University of Michigan at the same time that I was alone. I did not know her or know who she did.

Hobnobbing with the stars. But even back at Michigan, she had a reputation as a conservative. She was recruited by the Federalist Society. And so, yeah, the reason why, why she's so significant to this case is because last year, she oversaw the Trump legal team's challenges to the investigation. And she permitted things that really raised eyebrows, especially appointing a special master to review the documents. And while the special master

was doing that, federal government couldn't have access to the documents, which sent them into a panic because they were saying, there are things relevant to national security in here. We need to know what's actually potentially been exposed. And yeah, that was the thing that was slapped down by a higher court. It's worth noting the higher court, which is the appeals court of the 11th Circuit, is reputed to be one of the most conservative in America. And two of the judges who rebuked Eileen Cannon were Trump appointees themselves. And they said she just had no jurisdiction to, you know, to do this. And what that did, was it really slowed the investigation down.

And basically her original rulings suggested that Trump was actually entitled to certain special protections and privileges as a former president. So obviously there are some people now who are pretty worried about the fact that she is overseeing this case. It's not just the fact that she's issued favorable rulings to Trump before. It's that there are going to be a lot of very complicated elements to this case before it even begins. Like Trump's lawyers are going to make a lot of challenges to everything from the evidence that can be involved, to the jurors who can be selected, to whether the trial should happen at all.

They're going to claim it's selective application of justice. They might claim prosecutorial misconduct. So she's going to be bombarded with all of this stuff from Trump's lawyer. She'll also face this really significant challenge of trying to keep the jury uncontaminated from the massive amount of media coverage. It's going to be going on. These would be huge challenges for any judge. She, as a judge, has only overseen four criminal cases that have actually gone to trial. And those have all been far, far less complicated than this and have only amounted to 14 days

in total of her career. So, you know, I can see why people are concerned about this. But if the prosecution is concerned about it, so far they're not giving any indication. that they are. So they haven't asked for her to recuse herself, which is something that they could ask for. There doesn't seem to be any indication from the special prosecutor, Jack Smith, that he's going to ask for a recusal.

So maybe they're just extremely competent in the case that they've got. I mean, it's possible, David, I suppose, that with all the scrutiny and media attention and having been slapped down by the higher court, she'll be on her best behavior. But it is a quirk of the system, isn't it, that you can appoint a judge who is clearly on your own side of politics. I mean, at the point where you're in the Federalist Society,

you're basically a card carrying member of the Scalia squad. Yes. And so he can go, oh, well, I want the judge who thinks the way that I do, who's likely to rule in my favour. That doesn't seem ideal for a system to have judges who are so openly partisan, but I guess at least that allows scrutiny, right? Probably more than here. I mean, it's worth noting in this case, she was drawn at random.

So I think she was one of five justices who could have been chosen. And that's because the federal government chose South Florida as the jurisdiction. Because I think they wanted to avoid what would have been an inevitable fight if they tried to take it to D.C. or somewhere like that. So they chose South Florida. There was, I think I read somewhere something like a 20% chance or perhaps a little bit higher, that she would have been drawn for this. And, you know, 20% is not zero, obviously.

sleep. So they've got her and I think they'll, they will realize they just have to live with this that if they tried to get her to accuse herself, it would just politicize the process further. And things are going to be wacky. I mean, they've chosen Florida. We know that when things go to Florida, there's a degree of this. But David, stepping back from this. So he'll now have this whole process, the trial, there'll be multiple appearances. He'll have to give evidence presumably at some point. This will play out in the middle of the primary campaign. He's He's already been using it to try and raise funds. Some of the candidates, I understand,

some of the sort of fringe candidates in the race are demanding that other Republican candidates vow to pardon him if they become president. So it's just an odd kind of confluence of another crazy GOP campaign where there are dozens of candidates. I saw another one entering the race today, the mayor of Miami. And but then... Oh, yeah, I saw that.

Yes, bizarrely, a Hispanic mayor of Miami is also running just because we need more florist. in the mix in this campaign, apparently. Absolutely. Along with Roda Sanders and Donald Trump, who also live in Florida. How's this going to work, having this campaign with the lawsuits going on? And at what point is this too much for Donald Trump to actually remain in the race? Is it possible that he would even pull out?

Because, you know, if he's president or my president, presumably can't get sent to jail? I don't think it's possible that he would pull out voluntarily. even if he was sent to jail, there's a theoretical possibility he could still run from prison. Oh, wow, that would be extraordinary. I kind of hope that happens in a way. That would be the most amusing outcome. Yeah, prison for that is Eugene Debs, socialist candidate in 1916,

actually ran from prison, which I think he'd been put there because of his objections to World War I. So this, I mean, this process can't, it's certainly not going to force him to withdraw out of, you know, shame or embarrassment or something. Yeah, that's, we can take that off the table, as always. Like that, but it certainly, it could hurt his, his prospects. This is why Trump's lawyers are going to try to delay this trial until after the election itself. And with Justice Island canon, they might think they've got a shot of being able to, do that. Certainly the prosecution wants a very speedy trial. They said they think that the trial

will take about three weeks. They want to have done as soon as possible. I believe the other charges that he's facing in New York, that is scheduled to happen, I think, around March. Oh, yes. Stormy Daniels, the harsh money allegations, that's going in there too. And he still hasn't even been charged for January the 6th or from ringing authorities in Georgia and demanding more votes. I mean, this is, these are even more potentially egregious charges, aren't they? I think that they, yeah, I think the worst is potentially still to come. The Fulton County investigation into him working to try to overturn the election results, which is also an investigation into the slate of fake electors that appointed itself in Georgia.

I mean, that is a lot worse than either of these things. We're still waiting to see if charges come from that. The Chaser Report. More news Less often Let's just talk about the fake electors Because this is This is probably past many Australians by

This was a bizarre moment In the attempt to steal the election Yes, this really was Which was that So Georgia like every state In the United States Has a rule That the electors who get sent

to the electoral college Are for the candidate Who Got the Most votes in that state And Georgia had more scrutiny than any other state in terms of its electoral results. It was, I don't know if it was closer or Arizona was close. It was very close. It was like 12,000, 12,000 votes. But nonetheless, the Republicans who were overseeing the process, the Republican governor,

the Republican secretary of state actually went over the results three times in order to ensure their integrity. nonetheless, Trump and his people were still claiming that the election had been stolen in Georgia. There was the notorious phone conversation between Trump and the Secretary of State, Brad Rappensberger, where Trump suggested all he needed was another 11,000 votes. You know, that was all he wanted. And, yeah, one of the things that was happening was that, okay, so there was a slate of Democratic electors who was sent from Georgia to the Electoral College. but then a rival slate was forming, a Republican slate,

which wanted to claim the right to actually go to the electoral college to represent Georgia. This was not the only place where this happened. I think a similar crew assembled in Wisconsin, but there wasn't actually a lot that they could do, you know, once they got together. What they were hoping was that by claiming to be the true electoral slate, that they could induce Congress to claim that, okay, the election then hasn't been resolved in Georgia because there are two competing slates of electors, which is that was similar to things

that happened back in the 19th century. Therefore, this is a disputed election, therefore it gets thrown back to Congress. Which was what Mike Pence would have ruled on, right? So they wanted him to say, oh my gosh, what happened in Georgia? There's these two slides. People might not get that the Electoral College is actually a meeting of people, as in sane as it might seem. They actually send, if you think back in the day

when presumably they'd all turn up on horseback or something and have to travel to a physical place to meet. Do we ever see the physical meeting? That would be a very odd event, wouldn't it? People arriving with a predetermined conclusion. It is not that conclave anymore. These days, it's a transmission of votes.

Okay, that's a little bit easier. But there are still physical people, when they say... There are still physical people. There's one California. as whatever dozens of electoral votes, that's physical people who are identified and sent to vote. It's a bizarre system.

And you do even occasionally get people voting not the way that they're supposed to vote. Yeah. Because that, to this point, in recent history, has only happened when the results were beyond doubt anyway. And so, you know, some elected just wanted to say it's for a you. This is so-called faithless. Oh, that's right, the faithless lexies.

So that was, that's the Georgia shenanigans. Is that, I mean, pressuring the Secretary of State to invent votes does seem a little bit like an attempt to steal an election. I think that's massively controversial to say. But then having a coup, inciting a mob to go and storm the Capitol and kill people. I mean, literally, Capitol Police were murdered on that day by the angry mob after Donald Trump spoke to them. That hasn't even faced court yet. I mean, where are we like that? This is another one that the special prosecutor, Jack Smith, has to rule.

another one is. And yeah, I mean, and that is, it's very complicated, uh, that one. And there's all kinds of elements involved, uh, in that about exactly what kind of responsibility did Trump have for that. Uh, you might remember the question has been thrown around quite a lot of, well, if he sincerely believed that the election was stolen from him, does that mitigate the, the crime in some way. So yeah, that's still going on. I'm not sure where that is or when or if charges will actually come down from that. But those are the other potential charges that he's facing. So, okay, to get back to your original question, he's facing all of these charges. So far, we've seen none of this makes any difference with the Republican base. If anything, it helps

with the Republican base. The first set of charges that he faced in New York actually really I think gave what was a flagging campaign, a shot in the arm, and it forced all of these Republicans to rally around him. And the same thing is happening again. Now, they haven't been quite so owned by Trump this time around as they were with the first set of charges. Some of them have very quietly managed to say out of the side of their mouth, things like, you probably shouldn't be taking classified documents with you.

I think Ron DeSantis said he would have been court-martialed if he'd done that, although he very blebly phrased it in terms of what Hillary Clinton had done with her private email server, not directly attacking Trump. So they're not quite as vigorous in their defense. They are saying that the Department of Justice has been weaponised and, you know, they'll... Yeah, lawfare, I believe, is the term that's... Yeah, yeah. They'll have inquiries into it.

some have been promising that they would pardon Trump. But at the same time, at least some of the candidates are trying to actually remind people that Donald Trump probably did commit a crime. There are two Republican candidates who are openly attacking him. That's Chris Christie and former Arkansas Governor Asa Hutchinson. Oh, yes, Chris Christie's back in the mix. How exciting.

Chris Christie is back in the mix, yes. Neither of them have any chance of winning unless Trump actually does get taken out of the race. somehow. Then I suppose it's open slather. And with a lot of these candidates, I kind of think that the reason why they're in there must be because they think there's a chance that something will take Trump out. You'd think so. I mean, I do, given that Mike Pence is running as well, I mean, bizarrely, I can't imagine who besides mother would be interested in seeing him elected. But I just want the moment on the debate stage where he says, your mob tried to hang me with a noose that they actually had there on.

I mean, it's going to be a very, very delightful primary campaign. The thing is that, yeah, it's hard to see unless Trump is actually sent to jail or the weight of all these court cases somehow changes the minds of Republican electors, bearing in mind that only Republican registered Republicans will vote in this contest. It's hard to see anyone other than Trump winning. It just seems as though he is inevitable, despite losing the last three, you know, National elections. And if we cast our minds back to late November last year,

he actually looked pretty weak because Republicans were blaming him. Yeah, the launch was very lackluster down at Marathon. There were no members of sitting members of Congress at the launch, apart from Madison Corthorn, who was on his way out of office. There were very few notable American conservative personalities there, although Gina Reinhart was for some reason. Oh, so proud. He really looked like he was at the absolute bottom at that point

and the New York Post was making fun of him and Fox News was ignoring him. But since then, without his major opponent, who was Ron DeSantis getting in the race until May, he basically had six months to rehabilitate himself. And the first set of charges helped with that. He was pretty much operating in a vacuum, the only other people getting into the Republican race didn't matter at all.

And now he looks, as far as the Republican field goes, as strong as ever. People who were previously wavering have swung back behind him again. It is hard to see anybody else winning. The big argument that Ron DeSantis had in his favor was electability. And still, if you look at polls, you see that DeSantis tends to perform better. in head-to-head polls against Biden than Trump does. Not necessarily by a lot, but he does tend to perform better, although the best performer of all is generic Republican performs best at all.

Sure, that's Mike Pence, David. Yes, good. But the thing is that now, the electability argument doesn't look as strong as it did because Trump is actually looking very competitive in polls against Biden. Now, there are a few caveats on this. One is polls this far out are often not very informative. Polling companies are still tweaking all of their formulas. We don't really know what the electorate is going to look like in 2024

compared to what it's looked like in other years. There's also like a whole lot of just garbage polls out there as well that are providing a lot of noise without a lot of information. But certainly just looking at the polls at the moment, Trump looks very competitive with Biden. So the electability argument maybe doesn't hold as much water as it might have. The other thing is that DeSantis is trying to run to the right of Trump. So he is trying to highlight the fact that he signed a six-week abortion ban in Florida,

one of the strictest in the country, whereas Trump has been very lukewarm on abortion bans. Even though Trump is more responsible than anybody for these abortion bans because it was his appointees to overturn Roe versus Wade. Trump recognizes that this was another issue that really hurt Republicans in 2022, and he has suggested at least privately that this is not an issue that Republicans should be pushing in 2024. So DeSantis is going to try to outflank him from the right on that. He is saying that it's bizarre that Trump is supporting Disney in his –

Oh, yes. The great DeSantis Disney battle is enormously entertaining. Disney. And yeah, and I think he's also going to try to outflank him on the right economically, which I think is a dangerous strategy because one of the reasons why Trump has the level of support that he has is because he doesn't follow conservative economic orthodoxy. He actually recognizes that that's unpopular. But I think that DeSantis is going to try to get him from the right in the primaries with that. So DeSantis' appeal is to people who think that Trump has deviated too much from conservatism. Trump's soft.

He's also, yeah, yeah. And he's also, I think, trying to position himself as someone who could appeal to people who likes Trump's policies, but don't like Trump himself. I just don't think that there's enough of those voters in a Republican primary for DeSantis to win. The line in general election. Yeah. If he actually manages to win the primary by running to the right. of Trump. That puts him in a very difficult position in the general elections, especially since Democrats are dying to make the general election all about abortion, because they believe

that that's the ground on which they can win. Okay. So it's still looking very much like Trump v. Biden again. And given how long court cases take, David, as you say, it does seem as though they'll be able to string this out until after the election. And then there'll be the whole claim of, well, you're trying to win the election through all these court cases, rather than rather than at the ballot box. Does Biden win comfortably over Trump again, given that it's hard to imagine anyone who voted against Trump last time going,

well, he's really changed. I think this new version with all the lawsuits is far more appealing. All my previous issues with him have disappeared. I mean, as underwhelming as Biden may be, is this just going to end in the same situation? Look, I certainly wouldn't predict a comfortable victory for Biden,

especially not in terms of the Electoral College because Biden managed to get 7 million more votes than Trump last time but still if 40,000 votes across three states had gone differently, he would have actually lost the Electoral College. It's a great southern gerrymander. Arguably those circumstances have improved slightly for Biden because Michigan and Pennsylvania seem to have got bluer. And also given the last Supreme Court,

court election in Wisconsin. Democrats are perhaps a little bit more confident about that. If they can keep hold of those three states, they'll probably win the election, whereas Republican gains at the moment seem to be happening in places that actually aren't that helpful to them anymore. So they can win Florida by a lot. They can win Ohio by a lot. Yeah, but they're not swing states anymore.

They're not swing states anymore. No. But no, I wouldn't predict a comfortable win for Biden. just because Biden's approval ratings have been so low, because people have really significant concerns about his age and about whether if they vote for him in 2024, whether he'll still be alive by the end of his term. How old is he now?

He's in his 80s. So at the end of his second term, he'd be, what, 86 plus, right? Yeah, yeah, I think he'd be 86. So I think that, yeah, even though, Trump's appeal certainly has not expanded. You never know what the electorate is actually going to look like in 2024. The question will be, will the surge of people who came out for Biden, mainly because they wanted to defeat Trump,

is that enthusiasm still going to be there in 2024? Having had four years of the reality of Biden versus the concept. And I mean, in some, like some Democrats, a lot of Democrats actually would be pretty happy with the job that Biden has done. Like, I think that there have been some moments where he did things that were very unpopular, like the withdrawal from Afghanistan. But those have been relatively few. For the most part, he has fulfilled a Democratic Party agenda. reasonably well, although perhaps not to the extent that many or most Democrats would have liked. So, I mean, he hasn't made himself completely unpopular with his own party,

but he's only the not, he's only the certain nominee now because of the fact the Democrats did better than expected in the, uh, in the 2022 election. If they had actually been trounced, I think there would have been a serious movement to, uh, yeah, to get rid of bite. Okay. So potentially a rematch, potentially a Biden victory. But given the bizarreness, who thought we'd be talking about massive numbers of classified documents hidden in the toilet at Mara Lago and federal charges for the first time in history for a former US president? So as ever, the campaign is even more bizarre and fascinating than we might have predicted.

David, thank you for talking us through it. My pleasure. That's David Smith, Associate Professor at the US Study Centre at the University of Sydney. Our gear is from Road. We're part of the Iconicast Podcast Network. Catch you next time.