The Daily - Nuclear Secrets and Taped Conversations: A Look at the Evidence Against Trump.

Episode Date: June 12, 2023

Last week, Donald Trump was charged with federal violations relating to his handling of classified material after leaving office.Ben Protess, who covers the government and law enforcement for The Times, discusses the indictment and walks us through the evidence.Guest: Ben Protess, an investigative reporter for The New York Times.Background reading: The Trump indictment shows critical evidence came from one of his own lawyers.The information about the yearlong inquiry contains a host of embarrassing and potentially devastating new revelations. Here’s what we learned.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From New York Times, I'm Michael Barbaro. This is The Daily. Good afternoon. Today, an indictment was unsealed, charging Donald J. Trump with felony violations of our national security laws, as well as participating in a conspiracy to obstruct justice. On Friday, when the federal indictment of Donald Trump

over his handling of classified materials was finally unsealed, we got a glimpse into just how strong the government's legal case against him will actually be. Our laws that protect national defense information are critical to the safety and security of the United States, and they must be enforced. Today, my colleague Ben Protess walks us through the evidence. We have one set of laws in this country, and they apply to everyone. It's Monday, June 12th. Ben, I want to recap for you where we were as of Friday morning, which is when we published our last episode about all of this. At that point, we understood that Donald Trump had been indicted over his handling of classified materials and that the charges involved obstructing the federal government's efforts to retrieve those documents.

But the indictment itself had not yet been made public. So there was a lot we still didn't really understand. So I wonder if you can pick up the story from there. Yeah, so on Friday, we actually get the indictment, the thing we've been waiting for. And it's a doozy. I mean, we've got 37 counts laid out in 49 pages. Many of the counts relate to his willful retention of the documents. He actually removed them from the White House. And then several of the counts relate to his refusal to return them or his obstruction of

the investigation. And the indictment just sort of lays out the evidence, much of it seemingly pretty damning, in this great detail. Well, let's talk about all that detail. And I think we should organize it in a few different ways, given what we already know about the case. So let's talk about the indictment in terms of, first, what does it tell us about the nature of these classified materials that Trump took, which has always been a little bit of a mystery. And then second, what we learned about exactly how and where Trump stored these classified materials during this period where he wouldn't return them. And third, the specific ways the indictment alleges that he tried to obstruct the government from ever getting the documents back.

All right, let's bite these off one at a time, Michael. So the indictment says that when he leaves the White House, he takes documents related to some of our nation's most important agencies. So we're talking the CIA, NSA, State Department, Defense. NSA, State Department, Defense. And some of the documents that are in the indictment that are cited that he took, these are things related to the military capabilities of a foreign country, one document that relates to the nuclear capability of a foreign country, one document concerned the military contingency planning of the United States, and yet another concerned nuclear weaponry of the United States. I mean, I just want to linger on one of the documents you just mentioned, Ben, nuclear weaponry of the United States. I mean, I just want to linger on one of the documents you just mentioned, Ben, nuclear weaponry of the United States. Donald Trump

took a document from the White House that in some way or another detailed the United States nuclear capacities. Correct. These are documents that, according to the indictment, left the White House and went down to Florida with him. And listen, the former president and his supporters have tried to portray this as, you know, just a few innocent documents. They're his documents. He had the right to do this and nothing to see here. But that's just not the case, at least not as it's laid out in the indictment. Right. So in no way is this the story of Trump taking a set of kind of harmless mementos, right? Like a personal letter from, you know, the prime minister of a foreign country or some treaty he signed that later became public.

Like you're saying, just kind of almost incomprehensibly top secret stuff. That's exactly right. So I think, Ben, this quite naturally brings us to the second category of information in the indictment, which is what it tells us about how Trump treated these ultra sensitive documents, given what the contents of them are. So what exactly does the indictment tell us about that? he was pretty careless with where he put them. So picture yourself walking into former president's club, Mar-a-Lago down in Florida, and you see boxes and boxes of documents. Now, some of them are kept in a storage room.

Some of these boxes though were not. They were in a ballroom, a bathroom, a shower even. A shower. A shower, yeah. Remember, these are top secret documents, right? But what the indictment shows is that they're kind of just put in random places without any real security. And in the indictment, you can see that Trump's aides are texting each other back and forth. What do we do with these documents? At one point, you've got one employee writing to another. There's still a little room left in the shower

where the other stuff is. I think there was just so little, according to the indictment, so little care given to where to store these records that they were just sort of everywhere all across Mar-a-Lago. So these aides, they're just treating them as the president's stuff and therefore putting them wherever they find space, including some very strange places to put classified documents like a bathroom, a shower, a ballroom stage. Right. And what the indictment tells us is that he didn't just keep them in strange places. He also shared them in some strange ways as well. Okay, explain that. So there are two potentially alarming examples that the indictment recites. The first is when Trump shared a highly sensitive, quote unquote, plan of attack against Iran to visitors at his golf club in Bedminster. This is in New Jersey and this is happening back in July of 2021.

So he takes documents from Mar-a-Lago to another Trump club, this time in New Jersey. Correct. Packed him up, put him on the plane and flew to Bedminster and is at his club and is being interviewed for a book. And so there's a recording that's going on here. It's on tape and the investigators have this recording and they have Trump in his own words describing a document that he has as highly confidential and in his words, secret. Now, what's really notable here is that he admits that he could have declassified it when he was president, but that he didn't. And that this was secret information that was now being shared. And you can kind of hear apparently on the tape, according to the indictment, one of his aides in the background saying something to the effect of, oh, no,

now we have a problem. Fascinating. So you get from this tape, very clear evidence that Trump, and it sounds like an aide close by, both understand that showing this document to the people in this room at Bedminster is illegal because they don't have the right credentials, the right clearance to see this stuff. That's the case that's made in the indictment. And I'm always hesitant to say what he knew was illegal or didn't know was illegal. But certainly what the indictment is laying out there is you're establishing his knowledge of the law. One of his central defenses all along is that, oh, I declassified these. These documents were mine. I declassified them. But you have them literally on tape saying, no, I didn't declassify this and I could have. And I'm not one to judge what a smoking gun is, but I bet prosecutors feel that that recording is as close as you're going to get. Ben, what's the second example of Trump showing a classified document to someone in a way that feels pretty alarming? So he also shared a top secret map, a military map with a staff member at his

political action committee, his PAC. And that person, according to the indictment, did not have a security clearance. And so it sort of describes how Trump quickly realizes that maybe he shouldn't have been displaying that. And he tells this person, wait, don't, no, don't get too close. Ben, does this indictment at all hint at why Trump would share these highly classified documents with super secret information despite knowing, as he appeared to know in both cases, that he shouldn't? Or are we kind of just left to speculate that doing this scratches a pretty well-known Trump itch for showing things off and kind of relishing in the power and access and importance he has. So the indictment need not get into the motive, but in talking this over with some of our colleagues, Maggie Haberman especially,

there's definitely that itch that you noted correctly that he has to show off and to feel important. He had just been burned and lost the election. And having these documents surely made him feel powerful and important. But there's another itch that he has to scratch sometimes, right? Which is settling old scores. So take, for instance, the Iran document that he was waving around at Bedminster and that they recorded him talking about. What you have there is Trump was locked in this feud in his mind with a former high-level official, Mark Milley. And Milley was getting all this good press for being a check on Trump and, you know, potentially saving him from attacking Iran and other countries. And Trump was seething.

And Trump felt like this document, which I guess sort of claimed was Milley's attack plan against Iran, was going to exonerate Trump and was going to be, in his own words, according to the recordings in the indictment, was going to prove his case for him. And so, yes, certainly it's the ego stroking, but there's also that ability for some of these documents in his mind to sort of help him settle old scores and beat back his enemies. So in Trump's mind, producing a highly classified document and being able to show it to someone in the room with him was just another way to get the best of someone, settle a score, prove he was right, the kind of thing he might do with any document on his desk.

But in this case, these happen to be the kind of documents that you're not supposed to do that with. Bingo. But how important to the charges that have just been brought against Trump in this case is this behavior we're talking about, the original taking of the documents, given how classified they are, and the showing of the documents to people who didn't have the clearance. Sure, it's important. But if you read through the indictment as you keep going through the sweeping document, you sort of get the sense that it's just the tip of the iceberg. Much of what's alleged is Trump's effort to obstruct the investigation or refuse to return

the documents. And so you get the sense that the government feels, and some of the experts we're talking to feel, that that is perhaps the most serious part of the indictment. The cover-up. We'll be right back. We'll be right back. So then let's turn to this question of obstruction. What does this indictment allege about Trump's efforts to hide these classified materials from the government once the government asks for them all back? Sure. So if you think of it, it all sort of flows from the subpoena that he got back in May of last year, May of 2022. And so he gets a subpoena from the FBI and Justice Department basically saying, we want you to turn over all these classified documents that you have. Whatever

you have, turn them over. Right. And this is already a point at which the government thinks, you haven't given us everything, even though we've asked. So now we're giving you a subpoena. So you now have to turn things over. That's what the subpoena means. Exactly. The subpoena means they had just convened a grand jury beginning a criminal investigation. And so now they're going to make a good faith attempt to recover the documents via subpoena. Okay. Okay. So what does the indictment say happens once the subpoena arrives? So instead of just turning them over, he first meets his lawyer, his new lawyer is a person by the name of Evan Corcoran. And Mr. Corcoran goes down to Mar-a-Lago and right off the bat,

Trump says to him, I just don't really feel the need to comply with this subpoena in essence. So he says things like, I don't want anybody looking. I don't want anybody looking through my boxes. I really don't. I don't even want you looking through my boxes. And then he sort of suggests things to Mr. Corcoran, his attorney, things like, what happens if we just don't respond at all or just don't play ball with them? And then he asked the question, wouldn't it be better if we just told them we didn't have anything here? Which is sure, except that that's illegal. You have to respond to a lawful grand jury subpoena. You can either comply with it or you can move to quash it, but you can't just tell the government a lie that you don't have anything there. So Trump realizes his lawyer will comply with the subpoena and is going to turn over

any documents he knows about and fines to the government. So then according to the indictment, Trump directs his employee, Walt Nada, who's also charged in the indictment as a co-conspirator, to move boxes out of the storage room where Corcoran was just about to look. So in the days and the weeks leading up to Corcoran's visit to search for those documents, Trump directs Nauta to move these boxes. And we're not just talking about one or two boxes. Ultimately, it's 64 boxes that Nauta moves out. So despite all the moving of those boxes, Mr. Corcoran does still find about 38 documents that have classified markings. Wow.

Now, Mr. Corcoran doesn't have security clearance to hold on to them or to view them, really. So Trump sort of suggests he take them back to his hotel room. And this is one of the more bizarre parts of the indictment. According to Mr. Corcoran, Mr. Trump makes a sort of a plucking gesture. If you can sort of imagine your hand dipping into a document and like plucking it out of a box, which Mr. Corcoran says is sort of like, well, okay, why don't you take him back to your hotel room? And if there's anything sort of really bad in there, you know, sort of just pluck it out. That's the motion he made.

Just sort of pluck it out. So Ben, I just want to make sure I'm understanding this. Trump has already hidden key classified documents from this lawyer. But when the lawyer eventually does find some limited number of documents that are classified and talks to Trump about it, Trump goes further and says,

I want you to go through those classified documents and pluck out anything that seems like a problem for me legally, and then you can turn over what's left to the government. Correct. And so you can't just pluck out bad or incriminating information in response to a subpoena. You have to turn over everything. Right. And that's why it's such. You have to turn over everything. Right.

And that's why it's such an important part of the indictment. Okay. And Ben, what should we make of the fact that the lawyer in this case clearly has offered testimony against his client? That would seem to be how we know that these conversations occurred. Usually they would be covered by attorney-client privilege, right? Yeah, that's a great question. So what happened is the government early this year decided to make an argument that they were able to see Mr. Corcoran's notes and to be able to secure the testimony from Mr. Corcoran, even though it was covered normally by attorney-client privilege. And that's because there is a notable exception to attorney-client privilege, which is the crime fraud exception.

And basically what that means is if a client is using his or her lawyer to further a crime and the government can make a showing of that, then prosecutors can absolutely pierce the privilege. If a judge agrees, in this case, sure enough, a judge agreed that Mr. Trump was trying to use Mr. Corcoran to further his crime, that allowed them to access these notes that Mr. Corcoran made and ultimately secure his testimony as well. Got it. So according to the indictment, what happens next in this alleged scheme to obstruct the government's retrieval of these documents?

Sure. So what happens after Mr. Corcoran produces these 38 additional documents is the government has reason to believe that that's not it. And so they actually get surveillance footage of the property of Mar-a-Lago 38 additional documents, is the government has reason to believe that that's not it. And so they actually get surveillance footage of the property of Mar-a-Lago. And they see that people are moving boxes in and out. And they start interviewing witnesses. And they figure out, absolutely, things were moved in and out. And perhaps it was just a drop in the bucket, what had already been turned over. And so they ultimately go to a judge and get a warrant

to search Mar-a-Lago last August. And there's this sort of extraordinary scene of former president's private residence being searched by a team of FBI agents. And this is sort of what alerted the world that this was not just some back and forth or discussion about documents, but a real live, serious criminal investigation.

And at that search, they sure, find over 100 additional classified documents. So, Ben, this FBI search, which we all watched more or less in real time, it was a huge event. It's kind of the culmination of this scheme that, according to the indictment, Trump has been up to. He has hidden documents from his lawyer. He has asked his lawyer to pluck things out. He has asked an aide to move boxes and hide things from his lawyer. He has asked his lawyer to pluck things out. He has asked an aide to move boxes and hide things from his lawyer and the government. And when the government shows up in this raid and starts looking around, what it finds is the, in some ways, successful for Trump

result of all that scheming. He has kept dozens and dozens of classified documents. That's exactly right. Ben, the volume and the strength of the evidence that you have just gone through and that is contained in this indictment, it feels very meaningful. So do legal experts that you and our colleagues have been talking to, do they see this as a strong case? Yeah. So most of the experts we're talking to would say that this is a very comprehensive indictment. It establishes in their minds his knowledge of the law and that he had retained these documents and tried to obstruct the

investigation, that there's a tremendous amount of evidence, both from documents, witness interviews, tapes. So while no case is perfect, I think a lot of the experts' reactions to this indictment is that it's pretty strong. Got it. And Ben, do we have any sense of what Trump's defense might look like yet? Well, originally his defense was that he had declassified these documents and that they were his documents. Obviously, that's going to be undermined by the recording they have of him at Bedminster. We're going to learn, I'm sure, in the coming weeks and months what his substantive legal defense is going to be. And he recently just switched legal teams in this case. So we don't quite know just yet. Rhetorically, his defense is going to be that this is a continuation of the witch hunt from previous impeachments, that it's all the Democrats that

are trying to get him, basically. So is it fair to say that this case is looking like it very well could result in a conviction? Well, not so fast. I think there are a lot of variables in a criminal proceeding. And one of the things that's really important to keep in mind is whose courtroom the case will be in. In this case, it's going to be in the courtroom

of Judge Aileen Cannon. And Judge Cannon was not only appointed by President Trump, but also she had ruled in his favor in a related matter in this document's case last year. And so at one point in this case, she effectively froze a portion of the government's investigation. I remember that. Yeah, she sort of barred prosecutors from using the materials they had seized from Mar-a-Lago. And she ultimately was overturned by the appeals court. But this was a big contentious matter. And she showed some sympathy to the former president's case. So I think we just don't know yet how it's going to play out in her courtroom. Ben, can the Department of Justice seek a different judge based

on the impression that she is a Trump ally? Do we know if that's even possible or something that they're contemplating? Well, actually, Michael, Jack Smith and his team made the decision to file this in the Southern District of Florida. That was their choice. And in fact, everybody originally expected they were going to file it in Washington. The grand jury had been sitting in Washington for almost a year, and all of that frenzy and flurry of investigative activity was in Washington. And then out of nowhere, a few weeks ago, the activities sort of shifted to Florida. And presumably, the government felt they had to do that because so much of the alleged misconduct that's in the indictment occurred in Florida.

And so they knew the risks of filing it down there. indictment occurred in Florida. And so they knew the risks of filing it down there. And also, you could view it from their perspective of this case is so bulletproof that we don't mind trying it in front of a judge who's been skeptical of us in the past. Obviously, we just have to sort of see it play out. Now, you also have to keep in mind that the jury pool down there is going to be a little different than if they had filed it in Washington. In Washington, you tend to get people who are government workers, people who are a little more sympathetic to the prosecution's viewpoint, broadly speaking. And generally speaking, you're going to have Democrats who are not huge supporters of the former president. different jury pool. So all it takes is one juror in that more skeptical jury pool to balk and you have a hung jury and the government would have to either forego its case or try it again entirely new. So that is the potential wild card in all of this is who's sitting on the jury and the judge

who's overseeing the trial. Right. And Ben, that makes me think of the other Trump indictment that you have been covering. You're now covering two. And the first one was an indictment brought in Manhattan against Trump for falsifying business records in an alleged hush money scheme. And there, the widely held view is that the jury pool is unlikely to be sympathetic to Trump, we think. Right. So you could almost view these as sort of the inverse of each other. So in Manhattan, you have a very sympathetic jury pool and a judge overseeing the case that has appeared pretty skeptical of Trump in the past,

but you don't quite have that national security level of import of the case. And that's not to undermine the significance of the hush money case. It's just not at the national security level. In the special counsel's indictment that we are now reviewing, you have perhaps a more skeptical jury pool and a more skeptical judge, but you have this sort of heavy weight of a national security indictment. So arguably, the indictment that carries the national security implications and that feels like this heavier, weightier indictment could actually be the one that's a little tougher to prove with that jury pool. could actually be the one that's a little tougher to prove with that jury pool. But you could also see in the middle of the election next year,

two different trials, both of which he's potentially convicted in, and he could be facing some very serious prison time from both. Well, Ben, thank you very much. We appreciate it. Thanks, Michael. They want to use something called the Espionage Act. Doesn't that sound terrible? Oh, espionage. We got a box.

I got a box. The espionage. Over the weekend, in speeches delivered in Georgia and North Carolina, Trump mocked the latest indictment against him, as well as the special counsel who carried out the investigation at the heart of it, Jack Smith. Deranged Jack Smith. And I watched him yesterday go up and talk. He talked for about two and a half minutes. He was shaking.

He was so scared. He didn't want to be there. In what is likely to be there. In what is likely to be a major theme of his presidential campaign, Trump told his supporters that the indictment was not about him, but about them. Because in the end, they're not coming after me. They're coming after you. And I'm just standing in their way. Here I am. I'm standing in their way and I always will be. Trump is scheduled to be arraigned in Judge Cannon's Miami courtroom tomorrow afternoon. We'll be right back. Here's what else you need to know today. On Sunday, a section of Interstate 95,

one of the busiest and most vital highways in the country, collapsed in northeast Philadelphia after a tanker carrying gas caught fire underneath it. This is an emergency that has created a tremendous challenge for our transportation network. The collapse, which affected the interstate in both directions, will take months to repair and is expected to disrupt traffic for hundreds of thousands of drivers throughout the summer. We are all going to need some extra patience in the coming days, especially tomorrow morning. Today's episode was produced by Alex Stern and Nina Feldman. It was edited by Mark George,

with help from Paige Cowan, contains original music by Marion Lozano, with help from Paige Cowan. Contains original music by Marion Lozano and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landfork of Wunderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.