The NPR Politics Podcast - Should Trump Make It Official? Depends If He's More Worried About The FEC Or DOJ

Episode Date: August 24, 2022

Trump has gobs of money is his political action committees and as long as he's not officially running for office he can basically spend it however he wants. The rules get more complicated if he announces his reelection bid, but — on the other hand — an official announcement would put immense political pressure on the people investigating him.This episode: political correspondent Danielle Kurtzleben, political reporter Deepa Shivaram, and justice correspondent Ryan Lucas. Learn more about upcoming live shows of The NPR Politics Podcast at nprpresents.org.Support the show and unlock sponsor-free listening with a subscription to The NPR Politics Podcast Plus. Learn more at plus.npr.org/politics Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's Asma with some exciting news. We are getting ready to take the show back on the road. And Houston, you all are up first. Join Tamara Keith, Susan Davis, Ashley Lopez, Domenico Montanaro, and me at Zilka Hall on Thursday, September 15th. You can find more information about tickets, including student ones, at nprpresents.org. And thanks to our partners at Houston Public Media. We hope to see you all there. Hi, this is Steve from the USCIS parking lot in Santa Clara, California. And thanks to our partners at Houston Public Media. We hope to see you all there. Hi, this is Steve from the USCIS parking lot in Santa Clara, California, where I'm about to enter to take my citizenship test.

This podcast was recorded at 1.06 p.m. Eastern Daylight Time on August 24th, 2022. Things may have changed by the time you hear this, and hopefully I'll be eligible to vote in the midterm elections. Okay, here's the show. Well, that's fantastic. Congratulations. That's so cool. That's great news. Hey there, it is the NPR Politics Podcast. I'm Danielle Kurtzleben. I cover politics.

I'm Tifa Shibaram. I cover politics. And I'm Ryan Lucas. I cover the Justice Department. And today we're talking about some news that hasn't happened, namely that Donald Trump has not announced whether he will run for president in 2024. And yet there is plenty of political news swirling around the former president. There's, of course, the FBI search of his Mar-a-Lago club in Florida. And then there's the fact that Trump has used the search to raise copious amounts of money for his Save America pack. So all of this raises some new questions. He's not running for president that we know of yet. So how is he going to spend all those millions of dollars he's raised? And how would a presidential run change that? And while

we're at it, what would it mean for his apparent legal problems if he declared that he would run for president? That was a lot. So, Deepa, we're going to start with you. Let's start with the campaign finance side of things. At the end of last month, the Save America PAC, that's Trump's largest political action committee, it had nearly $100 million on hand. So tell us quickly, what can he do with that money and do we know what it's being used for thus far? Yeah. So there's a huge amount of money here that Trump has raised. And after the FBI search of Mar-a-Lago, there were reports that he was raising a million dollars a day. And because it's PAC money, it's not an official campaign fund. There aren't many restrictions on what Trump can spend the money on. He's raking in millions of dollars that can be spent on his rallies around the country. He can donate some of that money to political candidates he supports. And he's even

using hundreds of thousands of dollars here to fund his presidential portrait at the Smithsonian Museum. And there are no rules here saying that he can't do that. And all of that is possible because Trump has not declared if he will run for president. If he does say that he's running and he spends $5,000 towards furthering his campaign, then all these restrictions from the Federal Election Commission start to kick in. And once you're a presidential candidate, there are limits on how much people can donate to your campaign and personal use laws on how that money can be spent. The problem is Trump isn't exactly known to be a rule follower. And since his 2016 campaign, he's faced about 40 claims of FEC violations that

have gone pretty much unchecked by that commission. Let's talk about those potential FEC violations. Why has there been no action from the FEC on that? Is that typical? You know, it's complicated. The commission is made up of six members, three Democrats and three Republicans, all of whom are nominated by the president and then confirmed by the Senate. And in order for any of these claims of a violation to move forward, the FEC needs to have a majority of votes, so four votes. And since about 2008, the commission has become a lot more politicized. And when it's come to claims against Trump, they've been deadlocked along party lines every time. Even in the case of Trump's lawyer, Michael Cohen, paying off Stormy Daniels in the 2016 election, Cohen himself was sent to prison. And the FEC's lawyer said it was a violation,

but the commission itself chose to drop the case. Republican members said that it wasn't a good use of the commission's resources. And it's worth pointing out here that all three of the Republican members on the commission right now were selected by President Trump when he was in office. Wow. OK, there was a lot there, Deepa. So let me sum up. So one, a presidential run would tighten the rules on how Donald Trump could spend all of that money he's taken in. But two, because the FEC has gotten so politicized, it's not clear how much he would be held to those tightened rules if he were to declare his run for the presidency again, right? It's kind of unclear here if he'll be held accountable if he does. Right. Well, let's change tracks here slightly.

Let's turn to Ryan and talk about the FBI search of Trump's residence at Mar-a-Lago. The FBI, of course, searched his Florida residence and recovered what they say are more than a dozen boxes of documents, some of them classified. Let's start here, Ryan. What more have you learned about this action by the DOJ? Well, there are a couple of things that have happened in the past couple of days. One is that Trump's legal team has kind of taken his first legal action, pushing back against what happened. It filed a motion asking for what's known as a special master to be appointed. It's somebody who's a neutral observer who would sift through the items that were taken from Mar-a-Lago and basically set aside stuff that might be considered

privileged. But the important thing here is that Trump is making this request two weeks after the FBI took these materials, which means the FBI spent two weeks sifting through them already with its own filter team and is then going through all of these documents. So this is really coming very late in the game. And former prosecutors that I've spoken with say that this is probably just kind of a moot point right now. Now, the other thing that's happened is we learned from a letter that was sent by the course of 2021 between the archives and Trump's legal team about getting materials back from Trump that should have gone to the National Archives after he left office. But we also learned that among the 15 or so boxes that the National Archives recovered in January, so separate from the FBI search of Mar-a-Lago, stuff that they recovered in January, there were more than 700 pages of

classified materials in there, some of which were at a classification level known as special access program. This is something that one former intelligence official told me is essentially that the crown jewels of American intelligence. This is stuff like code word material stuff that, if made public, could put spies' lives in danger. It could put a serious national security agency, for example, intelligence capabilities in danger. So this is highly sensitive stuff, and it was sitting at Mar-a-Lago. All right. We're going to dig more into that after a quick break. More in a second. And we are back. So, Ryan, just before the break, we mentioned Trump's legal issues regarding that search of Mar-a-Lago. Let's talk about how a Trump run for president would affect those legal problems and vice versa, how his apparent legal problems could affect a presidential run. So can a political candidate for president be charged or even prosecuted? Or is the risk of the DOJ interfering with an election just too high to even do that? I spoke with a law professor and former prosecutors about this, and they have all said uniformly, in terms of legal calculation and legal analysis being made by investigators, prosecutors, a candidacy has zero impact. But the political considerations, particularly in the case of Trump, are going to be thorny, incredibly complex.

I mean, pick your adjective here. It's going to be a very difficult thing for the various investigations that Trump is facing. So you have federal and state investigations that are going to have to deal with a potential Trump candidacy. People tend to think, experts tend to think that the calculation for the Justice Department is going to be more difficult because of the fact that, one, this is President Biden's Justice Department. Attorney General Merrick Garland was appointed by President Biden. Deputy Attorney General Lisa Monaco was appointed by President Biden. And if Trump were to declare his presidency, he's not just a former president. He would be a future president and potential opponent in 2024 of President Biden.

So the political atmosphere and stew that a decision would have to be made in are rough. Okay. So Ryan, you made a really important distinction there between legal issues and political issues. Essentially, if I'm hearing you right, that if Trump declared a run for president in 2024, it wouldn't change anything legally, but it would change the political calculus for anybody doing one of these investigations. What does that look like then in practice? Does it just mean the DOJ is more careful in its investigating? How does this play out? Investigators are going to be extra sure to dot every I and cross every T to make sure that the case is extra strong,

if the evidence that they develop, of course, is strong enough to bring a case against Trump. We don't know that it is, but they know that any decision that they make is not going to be made in a political vacuum. They are aware of the current dynamics in this country, the fact that after the search at Mar-a-Lago, there was a spike in threats against the FBI. We saw someone try to storm the FBI field office in Cincinnati after the search at Mar-a-Lago. A former president has never been charged in this country. Taking such a move would be unprecedented. And it's a weighty decision in any circumstance, and it becomes something that could affect the future politics of this country if he were to declare his candidacy as well. So it's something that

Merrick Garland, of course, is aware of. He has made clear in his public statements for several months now that they are going to follow the facts in the law in their investigations. He has also said time and time again that the Justice Department, while it follows the facts and the law, is also going to make sure that nobody is above the law. Right. And Donald Trump, we should also add, is very willing to call investigations into him, witch hunts. Were he to run for president, it seems that he now. I mean, he did that with the Russia investigation. Yes. And he's continued to make those statements since the search at Mar-a-Lago, the court-authorized search, I must add, at Mar-a-Lago. One thing that I heard from a law professor that I spoke with at Loyola Law School, Jessica Levinson, that I thought was really interesting.

And that's what she said, the good political and legal advice for Trump right now would be this. I think if somebody is a legal and or political advisor for Trump, the good legal and political advice right now is basically the same, which is declare that you're a candidate, because even though it doesn't legally insulate you, it politically complicates all of these legal investigations and it could make prosecutors both on the federal level and the state level much more reticent to bring charges because it will look like it's potentially politically motivated as opposed to a legal decision. But she also had advice for prosecutors. There's enormous implications for deciding to charge a former president and current candidate, and there are enormous implications for the rule of law and politically for deciding not to charge somebody because they are a candidate, even a candidate for president of the United States.

So we need to be very careful that simply declaring candidacy means Trump won't be charged. It means that it's a more difficult decision likely for prosecutors. But again, there are huge harms that I believe prosecutors will face by not pursuing charges if they otherwise would have. All right, Deepa, let's turn back to the campaign finance side of things. If Trump declared his candidacy, as we said before, it would greatly restrict how he could use those tens of millions of dollars he has in his pack. But also, we talked about how the FEC has increasingly become a partisan organ. So let's say Trump did declare his candidacy and broke rules around spending. Could the DOJ also act on that in addition to the FEC? Yeah, the DOJ could take criminal action here,

but the experts I've talked to say that it's a rare scenario. Like Ryan was talking about, you know, it's a little cloudy on the political front. There would have to be knowing and willful violations of the law. So it's a possible avenue legally, but politically, it's a little muddy. It would look like the DOJ is going after a political candidate in an election. So it's not really the best look there. It is possible to sue the FEC, though, for not acting on these claims of campaign finance violations. So if the commission didn't vote to move forward with the claim like they haven't been doing with all of these Trump claims, they could get sued by a nonprofit or another group and a judge could potentially get involved. That's a lengthy legal process, though, and there are a few examples of that happening, but it does take a while.

All right. Before we go, let's get to what Trump has said. Has Trump commented directly about any of this? Yeah, on the finance front, you know, Trump has really towed the line here on saying whether or not he'll run for president in 2024. He kind of has hinted at it, but he hasn't come outright and said that he's running. And experts I've talked to say that's kind of a legal strategy. As long as he remains vague about it, a lot of those financial restrictions that would kick in once you're an official presidential candidate don't apply to him. So he's kind of towing the line and trying to exist in this gray area as of now. All right, we are going to leave it there for today. I'm Danielle Kurtzleben. I cover politics. I'm Deepa Shivaram. I cover politics. And I'm Ryan Lucas.

I cover the Justice Department. And thank you for listening to the NPR Politics Podcast.