The Chaser Report - The Siege of Mar-A-Lago | Dr David Smith

Episode Date: August 10, 2022

Dr David Smith joins Charles and Dom to unpack the FBI raid of Trump's home in Florida. Dr Smith gives insight in to why Trump may have been searched, and what the repercussions of this event are. Plus Charles finds out the perks to becoming a presidential candidate. Hosted on Acast. See acast.com/privacy for more information.

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Instacart, groceries that over deliver. Striving for mediocrity in a world of excellence, this is The Chaser Report. Hello and welcome to The Chaser Report. It is Thursday the 11th of August 22. Dom Knight and Charles Firth with you. Following up on the shocking news that those scumbags at the FBI, the jackbooted thugs, have invaded the sanctum. Yes.

Former President Donald Trump down in Mar-a-Lago, Charles. They even broke into his safe. It's the deep state gone mad. Is there nothing sacred when a former president is accused of breaking the law? To find out why they did that, and what it all means about how justice works in the US, because this is all to do with the Justice Department and the Attorney General Merrick Garland and how all those pieces of the puzzle fit together. Associate Professor David Smith is with us once again from the US Study Centre at Sydney.

Hello, David. Good morning. The GOP tweeted, if they do this to a former president, what will they do to you? Well, most of the you that they're talking about aren't people who illegally remove documents from the White House. So I would actually say most of Trump supporters have very little to worry about. But this does tap into something that Trump has been saying for a long time, which is, I'm the only thing standing between them and you. And when they come after me, they're really coming after you. And this is part of a long term and very successful strategy that

he's had of deflecting things like criminal responsibility for his actions by saying, no, this is all motivated by these people coming after the half of the country that supports me. It's been a very successful strategy for him. And even though, as we were discussing a couple of weeks ago, it's clear that parts of the Republican Party are going a little bit cold on Trump, this has really shown how when something like this happens, Republicans will rally behind it. The media seems to be saying that it's focusing on the removal of classified documents from the White House, right?

Why wouldn't they just ask for them back? You know how, when you leave work, you leave a job. I took my laptop with me. You fill your boxes up, you leave. And you go, oh, I had that CIA report on North Korea or something there. Like, why wouldn't they just polite request to... to Trump saying, oh, by the way, we think you might have got a few documents here. Yeah, you accidentally took a whole bunch of boxes of for your eyes only documents.

Yeah, and I mean, as a former president, he'd have top secret clearance. Why is it so bad that he said the, like, it's not, it's not that illegal. Okay, there's a couple of things here. First of all, he was never supposed to take documents with him. That is illegal. Any document that is generated by the presidency is supposed to be turned over to the National archive. So he wasn't supposed to take documents. Hang on. Isn't there a loophole, David, if you as president tear them into tiny pieces

and throw them all over the room? Isn't that a loophole in the law? We will come back to that because that's a very, very interesting point. So even though Trump's children have been saying, look, dad's just really into scrapbooking. He like to take souvenirs with him. He's not supposed to. And he wasn't even supposed to take those from the White House officers into his White House residence, let alone all the way to Florida. But to the other point about couldn't they just ask for them back, the thing is the National Archive has already done that. Last year, they identified that Trump had taken 15 boxes of material with him to Mar-a-Lago,

and they did ask for them back, and there was a bit of a legal battle over that, but they eventually got those 15 boxes back in January, which included, among other things, a personal letter from Kim Jong-un that Trump had described as a love letter. Now, I think it's not very often that I'm going to agree with the adult Trump children, but I think that there is a strong possibility that at least most of the stuff that Trump took with him, he did take it with him as a kind of souvenir. I don't think that he was taking anything out of the White House, so that other people wouldn't see it. I think he was taking stuff out of the White House

so he could show it to people in Florida. And the reason why I think that is, because of all of these reports about Trump's proclivity to destroy documents, that's what he would have done if he didn't want people to see something. So there have been all these stories about Trump ripping documents to shreds.

And his poor staff, when they saw him doing this, they would know that legally they then had a responsibility to put them back together again with sticky tape or whatever was it had so they could be turned over to the National Archive. So the National Archive actually got a lot of documents in this reassembled form. Like a kind of serial killer puzzle. Yeah. And then this raid coincided yesterday with the news website Axios, publishing photos to back up Maggie Haddon's claim that Trump would try to flush documents

down the toilet so that his staff couldn't get to them. I don't know if you saw these photos, but it was photos of watered up balls of paper in the bottom of toilets in the White House with Trump's handwriting visible on them. So when Trump actually wanted to get rid of stuff, he really did try to get rid of it, if not very effectively.

I suspect that the things that he took to Florida, they weren't necessarily things that he was trying to hide from people, but nonetheless, the National Archive did say that some of the stuff he'd taken within to Florida included classified documents. Now, that is a big no, documents at the level of secret or top secret. That is completely illegal to remove them because it could compromise US intelligence operations. It could compromise the lives of people who were gathering this information. So that is absolutely illegal.

But as against that. Can I just sort of like, it seems very high risk of the Attorney General to do something like this, knowing that there would be enormous backlash and just hatred from half the country if it's literally just about,

oh, well, we didn't have all the documents in our library. You know, like, I don't know, it just seems to me there must be something else. That's why I was keen to hear from David on this, because the whole calculus of the, of the Attorney General, who was appointed by Biden launching these raids and the notion that, you know, I think was Eric, the brilliant Eric Trump, who said, you know, this all comes back to Biden because he's scared of my dad. Let's get to that. But before we do, David, the Mara Lago cocktail party, we know that he likes bringing out a little

bit of exciting stuff for the members, doesn't he? Didn't he previously bring various world leaders and didn't he, didn't he mastermind like an attack, an overseas attack, pretty much at the edge of the cocktail lounge at Mara Lago at one point? It's an exciting place to be a member of. He does like showing off to members and there have been these reports of there are all these people at Mara Lago who are basically just there so that they can give Trump a standing ovation every time he walks into the dining room. For 200 grand a year.

Yeah, on Charles's point about is this. basically library cops gone mad, overzealous policing of documents, that might be what it looks like from the outside. But at the same time, that process of everything that the president does as part of their presidency then becomes part of the National Archive, that is very important for the integrity of government in the United States. It shows everything that the president does is the property of the American people. It's not the personal property of the president. Now, that is not how Trump saw it.

Trump treated the presidency as a personal office, which he was going to benefit from personally. And he treated his staff as personal lieutenants who were supposed to do his bidding rather than follow the law. there are actually bigger issues at stake here around the rule of law. However, I do take the point that this was always going to be seen as the Justice Department becoming really politicized, as Merrick Garland on behalf of Biden going after one of Biden's main rivals in the in the 2024 election. So as you say, there's a huge amount of risk involved. And I've certainly heard people saying there must be more to it. than just mishandling of documents. Mishandling of documents is considered a serious crime

in that it can be punished by up to three years in jail, but cases of mishandled documents are so rarely brought for prosecution that no one even knows whether that three-year penalty would be likely to apply because it's been so long since we've seen a case of someone being prosecuted for mishandling federal documents. So there are people who are suggesting that there must be more to it than that. this must have something to do with January 6th. This must have something to do with that missing period in the record with missing documents

that the National Archive has been after. Now, once again, I'm not sure about that because if Trump wanted to get rid of that, I would have thought he would have got rid of it rather than taking it with him. I mean, if he were competent at anything, including cover-ups, I guess. Yeah, yeah. And I think implied in Charles's question and observation is the idea, could a US government department really be stupid enough to bring this level of political backlash on itself in the course of investigating a crime, which most people would think is really pretty trivial? The answer is a US government department is entirely capable of making mistakes on that scale, I guess. Absolutely. I've seen worse missteps than that by government departments in the US.

Biden apparently was pretty shocked to discover this was going on. And I think at the moment, he would probably be a little bit worried about the possibility that, yeah, if all this raid is about is mishandling federal documents, is Trump taking some souvenirs with him to Florida that then didn't get sent back with the rest of them in January? that this is going to cause a level of backlash that is a lot bigger than any possible benefit. Can I suggest just suggest one other theory, which is it's a bit like Al Capone, right? They couldn't get him for all these gangster-related crimes. So they got him for some breach of the tax code, right?

Is it like that? Is it that they want to prevent him from running again? they get him on some technical breach of mishandling of documents. He gets a criminal record. If he's convicted for this, he's out, right? Therefore, he can't. Can he run for Parliament? Isn't it actually explicit in the law, David?

This, yeah, this was being circulated yesterday, and a democratic affiliated lawyer called Mark Elias pointed out that in the criminal code that governs this, there is actually a section saying if you're convicted of this, you're disqualified from holding federal office. And that's obviously a lot more serious than any possible prison sentence, which probably wouldn't apply anyway. However, over the course of the day yesterday,

this was argued a lot about legally. And it was pointed out that back in 2016, Republicans were actually pointing at something fairly similar when Hillary Clinton was facing an investigation over her emails, which is sort of the same thing in terms of mishandling of government information and taking it out of the place where it's supposed to be. So there were Republicans saying, well, she might have violated a law that would prohibit her from holding office.

But Republican lawyers looking into that at the time, going back to a case from 1969 about a member of Congress who was seated despite the fact that he had been convicted of something, what they actually came up with was it's the Constitution alone that determines eligibility to be president. It's not this law passed by Congress. It's the Constitution alone. If that's in conflict with the law passed by Congress,

the Constitution is supreme law and it will prevail. Now, that could be potentially challenged because this specifically hasn't been tested before, but the legal expertise seems to think, that in this case, it would just defer to the constitutional eligibility for president, which it's a very low bar to clear. I mean, you have to be a natural born American citizen. You have to be over the age of 35. And you have to have not been disqualified from office by impeachment, which of course Trump faced twice, but was never convicted. So Trump would still be eligible

under the constitutional criteria, although there's been a lot of talk about, but And, yeah, even though, if there's a legal challenge, though, that's still pretty damaging. Yeah, okay. But if only the Supreme Court had been appointed by Trump himself, which they clearly were. When does fast grocery delivery through Instacart matter most, when your famous grainy mustard potato salad isn't so famous without the grainy mustard? When the barbecues lit, but there's nothing to grill, when the in-laws decide that actually they will stay for, dinner. Instacart has all your groceries covered this summer. So download the app and get delivery in as fast as 60 minutes. Plus, enjoy zero dollar delivery fees on your first three orders. Service

fees, exclusions and terms apply. Instacart, groceries that over deliver. None of the medical advice contained in the Chaser report should legally be considered medical advice. The Chaser report. Just on the Justice Department, because this is the interesting thing about it to me is how the system works. So basically the president gets to appoint the Attorney General, who has far more scope, I think, than in our system to run the Justice Department. And Americans seem very comfortable with elected officials, essentially running judicial processes and not having a much more independent system

as we have here. So, and Merrick Garland, as people might remember, was the person who Barack Obama wanted to put on the Supreme Court but got blocked by Mitch McConnell and the Republicans for at least a year. So he's kind of got skin in the game in a way. in that he was pretty upset, you would imagine, with the Republicans back then. What kind of person is he and how much faith can people have in him? I mean, because he was always described as being very thorough, wasn't he?

Yeah, one of the surprising things about this raid is that Merrick Garland had such a reputation as a moderate and an institutionalist, someone who was not willing to politicise or be seen to politicise the Justice Department, somebody who, in the words of one story in the Washington Post, was not going to provide catharsis to Democrats. And as the January 6th hearings have been going on, Garland has been very tight-lipped about whether there's any possibility

of Trump actually being prosecuted. There have been reports that the Department of Justice is investigating Trump. But Garland was very reluctant to say anything that suggested that there was a prosecution in the pipeline. And a lot of Democrats, even including Biden, were reportedly getting quite frustrated by how slowly Garland seemed to be moving and by how little he seemed to be offering them. So until a couple of days ago, I would have said it's really pretty unlikely that Trump is going to face any criminal consequences. for January 6th, because Merrick Garland just didn't seem to be predisposed to operating that way. It seemed Merrick Garland really saw his job as restoring the independence of the Justice Department,

which had been really seriously compromised under Trump. William Barr, as Attorney General, under Trump, really did act until the last few days of Trump's presidency as Trump's personal lawyer. And one of the first things that he did was when the Mueller report was released, it was released to him first, was to give this very inaccurate summary of it to the media claiming that it essentially completely exonerated Trump when it did no such thing. And that really set the tone for Barr's entire stint as Attorney General. So Trump was really accused correctly of politicizing the Justice Department.

and the Attorney General is supposed to be the most politically independent member of cabinet. So they had not been under Trump. And Merrick Garland seemed to see it as his responsibility to restore that independence and to act completely independently. Having been a judge, right? He was a judge. Obitius.

Yeah. Yeah. Now, all of the, everything I've just said suggests, if the FBI is now raiding Mara Lago, which that would have required a federal warrant. It's been confirmed that it was authorized by a federal court. That would have also required very high-level clearance in the Justice Department, not necessarily by Garland himself, by someone pretty high up. That's another thing that suggests there might actually be something really serious going on.

There may be something really serious and consequential that they are looking for in this raid, just because of how careful Garland has been to this point. Garland, if anything, made it harder to prosecute Trump because he's been implementing new rules around if somebody is a presidential candidate or a high-level political candidate, that raises the bar that's required for prosecution. Among other things, everything around those investigations has to be authorized at the top level. That is supposed to stop the Department of Justice from, being used as a political tool against the president's enemies or against the government's

enemies, which was always the fear that that was how Trump was using it. So Garland has really tried to reverse the politicization of the Justice Department that happened under Trump. And that's why looking at this raid happening now, which was always going to be interpreted as politicization, that could make you think there must be something really serious going on here if the Justice Department has been prepared to sign off on this. Could it be the PP tape? Well, apparently they did raid his safe.

Like, one of the things that they did was they broke open his safe. Although, do we have any word of how they broke it open? Because I am willing to bet a lot of money that the combination code on his safe was one, two, three, four. Or it was a Trump brand safe that didn't close. Didn't have a pop a lot. At the moment, the only source I've seen on the day broke into my safe story is Trump himself. So I think we've got to wait to see if there's a bit more information.

And so how long until we know what was in those documents? Like is this going to unfold before the midterms? Because it's very close to the elections. And very close to him potentially announcing. I want to get on to what this means for his campaign. Yeah, so the FBI has been very tight-lipped about it, and we would expect them to be tight-lipped. So until the investigation gets to a point where they decide to prosecute or not prosecute, we might not know either what it is they were looking for or what it is they actually found.

By the time you hear this, then Merrick Galen may have come forward and made an announcement. Yeah, he may. By the time you hear this, quite. But we're probably going to have to be patient. in terms of the timing of this. And so Republicans have been making all of these claims about how the Department of Justice is just acting on behalf of Biden

to try and stop Trump from running again in 2024. But the political reality of this is this is not great timing for Biden at all. This was supposed to be a week where Biden was enjoying some significant political wins. He had finally got, a major piece of legislation through Congress for the first time in more than a year that addressed some very serious Democratic Party priorities around climate change,

around health, and around corporate taxes. He had had this successful assassination in Afghanistan of one of the world's most wanted terrorists. Now, among other things, that's a reminder that no war in Afghanistan ever really ends if a superpower is involved in it. But anyway, that was that was supposed to be a big win for Biden as well. And there was also this renewed energy in the Democratic Party that's come in the wake of the Supreme Court overturning Roe versus Wade, which is that we're seeing mass Democratic Party mobilization on behalf of abortion rights, resulting in this referendum in Kansas about whether the state constitution should keep a right to abortion, where 58% of the state.

voted to keep that right, despite Kansas being a fairly conservative state, which voted for Trump by 15 points last time. And then on top of all of that, you've got the January 6th hearings, which have been going on since June, which have been really pretty damning for Trump. And even if Republicans haven't been paying a lot of attention to them, Democrats and to some extent, independents certainly have. So things were actually looking pretty good for Biden and for the Democratic Party. I doubt that they would be very impressed by the timing of this raid, which its main effect is likely to be galvanising Republicans just at the point where Republicans seem to be having really serious doubts about Trump and really giving them something to vote for

in giving them something more to vote for in November with the House leader Kevin McCarthy promising that if Republicans win the midterm election, then they will investigate Merrick Garland. Kevin McCarthy tweeted out yesterday to Garland, preserve your documents and clear your calendar. Now, of course, you don't need to tell a normal government official to preserve their documents. That's what they actually do.

That's great to hear a McCarthy maybe launching a witch hunt. That always goes very well. Do you think maybe actually the conspiracy here is the deep state, working against Biden by getting Garland to do this raid, thus undermining the Democrats in favour of Trump. This is all a deep state ploy to protect Trump. I mean, the Democrats are pretty good at undermining themselves. Yeah. I mean, there is, there's a serious point to consider here, which is, if you look historically, the FBI is a really conservative institution. If you want to do a bit of historical reading on this, Athen Thea Harris's book from

The Secret Files of J. Edgar Hoover is a fantastic book about the way that the FBI acted for a lot of its existence as an arm of conservative politics in the United States. Now, things have changed a bit, but still, when the origins of the Russia investigation were being investigated, there were all these stories coming out that were showing that a lot of people in the FBI, were really pretty pro-Trump and didn't like these investigations going on. And if you look at the FBI's recent record, the most politically consequential thing that anyone in the FBI did recently was James Comey announcing two weeks before the election that Hillary Clinton had been investigated.

I have never been able to take seriously the idea that the FBI is actually conspiring against Trump or Republicans. So while I'm not endorsing your conspiracy theory, if you look at the history of the deep state in the United States, it's been far more hostile to Democratic presidents than to Republicans. They also gave Brett Kavanaugh the least thorough investigation ever. They really did, yes. Anyway, that's a whole other thing.

So last thing, David, in terms of Trump's attempt to win back the presidency, I guess the first thing is now, would seem presumably he'd be more motivated because he'll get immunity if he wins, how will this, I mean, you've mentioned that his fellow Republicans are somewhat on board, but if it turns out that there is a smoking gun, which, as you say, is somewhat likely, people have been saying, even though Republicans have been defending him, there's clearly a little bit of worry about what they're going to reveal, because this may make Trump all the more toxic, or it may make him the new kind of savior.

that being the case, when do you think he'll announce? Because there was this whole narrative about, you know, once he announces they can't pay his legal bills anymore and so on. But is he going to announce, you know, this week to try and make it look like even more of a witch hunt than it already does to GOP supporters? Yeah, so on that first point about he wants to be president again because he'll get immunity,

it's not just being president. Merrick Garland has actually raised the bar for prosecution of a presidential candidate. so high, that there's a possibility that if Trump isn't announced candidate, that actually makes it less likely that he's going to be prosecuted, either for removing documents or for involvement in January 6th, or for trying to pressure the Georgia Secretary of State to overturn the election results, or even for business misdeeds in New York, any of these things that he's under investigation for. There's been speculation for a while that Trump might be announcing a lot sooner

rather than later, even though that has financial disadvantages, because he feels that it will make it less likely that he'll be prosecuted. So this raid happening now, which does suggest that there's a serious investigation going on, even if we don't know the exact nature of it, that could prompt him to make that announcement as early as possible. If he announces it as early as possible. He also steals the march on some of his opponents, people that we were discussing a couple of weeks ago, like Ron DeSantis or, yeah, Mike Pence or Mike Pompeo. So, yeah, I think that this does raise the possibility that he's going to announce sooner rather than later. Because while he's not a candidate, it does seem more plausible for the Justice Department to say,

we're investigating, yes, he's a former president, but he's a private citizen now. He's not a someone in any kind of position of office. And until he actually announces that he's running for office, that takes a bit of the sting out of the claim that the Justice Department is being used to persecute a potential rival. So, yes, the long-winded way of answering your question is, yes, he may announce very quickly, maybe this week, as a way of saying this is a witch hunt. Can I just ask, with that whole, we're not going to prosecute people who are running for president.

Does that mean that if I go to America and I murder someone, I can just say, oh, sorry, I now am announcing that I'm running for president and you can get away. Yes, I'm running for president as a party whose sole issue is allowing non-American citizens to run for president. That and David, the notion that you wouldn't want to know whether the guy was president before, committed any crimes before letting him run again. You wouldn't possibly want to know if he'd committed crimes last time. Let's not find that out now because he wants to run again. That doesn't seem a very good system.

Well, not from the perspective of the rule of law, but perhaps from the perspective of political reality. What I find increasingly in the US is that you have to start looking at it in the same way that you look at other really conflict-ridden. societies. So when questions about prosecuting Trump first came up years ago, I remember a colleague of mine who's from Northern Ireland saying, I think it's a bad idea to prosecute it. I think it's a terrible idea. And one of the reasons for that is the context that he comes from in Northern Ireland is such that you just, in order to have any kind of peace and political progress,

there has to be a certain amount of just kind of letting go of the past. And when your side takes power not using retribution against the other side in order to try to create lasting peace. And I think this is how people from conflict-ridden societies often see the situation. And, you know, we don't think of the US as being in a Northern Ireland-type situation, but it may well be in a Northern Ireland-type situation pretty soon. This is one of the possible paths that the U.S. could go down, that it's not full-blown civil war, but that there is a strong sense of two roughly equal parts of the country at each other's throat

where there are sporadic acts of violence, sporadic acts of terrorism, assassinations, you know, politically motivated violence, a real sense of this part of the country is that side's territory. This part of the country is the other side's territory. And so while for more than half of the country, going after Trump in this way is just a matter of actually enforcing the law of showing that nobody is above the law, political reality in the US might be such that we've actually got to treat it as being in a low-level civil war or approaching a low-level civil war, a Northern Ireland-style situation, where you've actually got to make concessions. you've sometimes got to lay off the retribution in order to create the possibility of peace and progress. That might be where we actually are. That's a nice ultimistic note to leave things on, David, an undeclared civil war in the United

States. What better to try and help them through this difficult time than another term of Donald Trump in the White House. I can't think of anything better. Thank you very much for that. My pleasure. It's really fascinating. It sort of feels poised to explode at any minute.

And what better place to explore that than the Chaser report. Get out the popcorn. There you go. Yes. Our gears from Road and we're part of the Acast, Creator Network. Catch you next time. All right. See ya.

Thanks, David. See ya. What's better than a well marbled ribby sizzling on the barbecue? A well marbled ribby sizzling on the barbecue that was carefully selected by an Instacart shopper and delivered to your door. A well marbled ribeye you ordered without even leaving. the kitty pool. Whatever groceries your summer calls for, Instacart has you covered. Download the Instacart app and enjoy $0 delivery fees on your first three orders. Service fees, exclusions, and terms apply. Instacart. Groceries that over deliver. Great. Great. I was very disappointed that

I don't get to listen to the ads while I'm doing the podcast. We can arrange that if you like. All right. Talk to you later. No, that's okay. I'll just listen to them on the podcast. Thank you.