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Hello, and welcome to a special breaking news edition of Prosecuting Donald Trump. Well, Mary, we're back because of so many new developments in particularly the Mar-a-Lago case that we're going to talk about. But we're also going to talk briefly also about the Stuart Rhodes sentencing and how that relates to potential charges with respect to Donald Trump, at least federally.
and also the much-touted letter to Merrick Garland. But the big thing that caught our eye is the truly explosive reporting, first in The Washington Post and then in The New York Times, about the Mar-a-Lago documents case. It definitely, in my view, is the clearest indication yet that an indictment is nigh. So, Mary, welcome.
Well, good to be here. This is really, you know, the episode about boxes going into the storage room, boxes going out of the storage room, maybe the reverse order of that. And what does that mean? So maybe the first thing to start with is just that, Mary, which is like, what's the reporting been? What is it? Now, again, let's just make it clear. This is reporting. Now, it is true that The Washington Post and The New York Times have generally been
been really accurate. I mean, when you've seen what has ultimately happened, their reporting, you know, not 100%, because no reporting is 100%, but they've actually been pretty good. So, you know, again, doesn't mean this is going to be totally taken to the bank. But there are two sources for a number of different things. The one aspect is that
There's evidence that documents were being moved just prior to even the day before the Department of Justice arriving in June. And somebody who Mary and I have both worked with, Jay Bratt, who is longtime DOJ employee.
A.U.S.A. I know, Mary, you know him really well. I know him from the special counsel investigation. We had to deal with him a lot in terms of the FARA charges, the Foreign Asian Registration Act. So, you know, he famously went down in June to talk to Mr. Corcoran, somebody you also know, Mary, really well. But apparently there were tapes, videotapes that showed boxes being moved around
apparently out of, but then also back into the famous storage unit. And I wanted to first get your sense, Mary, of like, just before we go to like the other types of reporting, but just that issue of sort of boxes moving in and out and the fact that it appeared to happen just before, what your take is on the import of that and why you think that is or is not important to Jack Smith? Yeah.
Right. So, you know, again, we are speculating on what it could mean. But if we go back a ways before this new Washington Post and New York Times reporting, there had already been reporting about, in particular, Walt Nata, but potentially others moving boxes out of that storage unit. And then there had been reporting about that being on the videotapes, as you just indicated, Andrew. What was so new yesterday was that
This reporting, which is very much more specific, including from another Mar-a-Lago employee's own attorney speaking to reporters, that another employee assisted Walt Nada in moving boxes back into the storage room the day before the Department of Justice visited in order to retrieve any responsive documents that were responsive to the subpoena.
And that would have been June the 2nd because Jay Brat and the FBI came to Mar-a-Lago on June the 3rd. And the reporting also indicates that the boxes were moved back into the storage room before Evan Corcoran even did his review of the boxes directly.
to determine if there was any classified information in there. And you'll recall we talked, I think, our last episode, if not the one before that, about the fact that what was pretty explosive at that time is the 50 pages of notes that Evan Corcoran had taken and turned over to Jack Smith, detailing his engagement with
Donald Trump and others at Mar-a-Lago about where he should be looking to make sure that he could find all of the documents that were responsive to the subpoena. And where he was told to look was in that storage room, not in
Donald Trump's office, not in some other rooms within Mar-a-Lago, but in that storage room. So the fact that there is reporting now of boxes being moved out of that storage room at some unknown point of time after the subpoena and before June 2nd, and then being moved back in on June 2nd, you know, if we're just speculating, one could posit they were moved out so that someone, maybe Donald Trump, could look through them.
take what he might want and move back in after that. Now, there are other explanations, of course, but if I'm, you know, working as a prosecutor, these are, this is a building block. This is something I want to learn more information about and obviously talk to that employee, which they've done and, you know, put that together with all the other evidence. Because again, Jack Smith is investigating whether there was an attempt to obstruct this investigation. And so this kind of evidence is very important.
Yeah, I mean, the way I looked at it was really similar. I mean, again, we still don't know a lot, but Mary, you and I are on the outside, which is an unusual position because usually, you know, we're on the inside listening to news people like us, you know, speculating about what's going on. But that's where, you know, it's helpful we put our hats on what we would have done. And to me, this looks very much like
sort of tampering with the crime scene. And if you're looking at sort of what's the big picture, as you said, we don't know exactly, but you appear to have at least one employee, a low-level employee whose attorney is speaking and saying, my client, this low-level employee, had no idea that he was doing anything wrong, but he saw that
Mr. Nauda was doing this and moving documents out and back in. You can be pretty sure that Mr. Corcoran did not know about this because he's just not going to lose his bar license over this. Again, we've talked about the fact that there might have been red flags, but this just has all the sort of indicia of that there are at least two witnesses, a lawyer and a low-level employee who are going to be
potentially really important witnesses on this obstruction piece and also essentially intent evidence by the former president if he's sort of monkeying around with where the documents are. And it's a really interesting way for Jack Smith to differentiate this case from Joe Biden or
Mike Pence, because there's just, you know, whatever those cases are, there is so far no evidence that anyone's heard of that suggests any sort of obstruction. There may be improper retention. It's not clear there would be illegal retention, but improper retention, but there's no suggestion of obstruction. So this has sort of operates on two fronts of both
justifying potential charges and explaining to the public why there would be charges here, but not there. I did think one thing that was really interesting, just going to other pieces of the reporting, was that there was evidence that there were more classified documents found by the Trump legal team in Donald Trump's, wait for it, bedroom. So that's
huge, if that's the case. I mean, obviously, the more they are there, you know, the harder it is for Donald Trump to say, I didn't know that there were documents there and I didn't know that they were classified. Of course, it doesn't matter if they were classified or not, but it's not helpful for him if they are. The other
piece of reporting that also is, you know, potentially quite damning. And the reason that Mary and I wanted to jump on this podcast and talk to you is that there is reporting that
at least one witness, maybe more, said that Donald Trump shared the documents or the information in them with aides and visitors. Just to remind people, Mary McCord was the head of the National Security Division in the Department of Justice. So you don't get higher in the National Security Division than the position that Mary McCord had. And I just thought if you could maybe
talk to us about what, if that is true, if there is that solid evidence of sharing documents with aides and visitors, how would that, or
relate to either potential charges or just the discretionary decision of whether to go forward with charges? Yeah, I think it's important on multiple fronts. You know, we've been talking about this case as a retention case, right? However, it was that the documents might have originally gotten to Mar-a-Lago. At some point, Donald Trump clearly knew he had classified documents at Mar-a-Lago where they were not permitted to be and was
demanded to send them back, did not send them all back. Therefore, there's a potential for an unlawful retention after you've been asked to return them. That's the crime that was listed in the affidavit in support of a search warrant before that search warrant was executed last August. And it's one that fits that kind of the pattern that we've seen.
There's been various times, as you'll recall, Andrew, where there's been speculation that some of this might have been shared. But this is the most – and it's still not concrete, I'd say, reporting, but this is the most specific reporting I think we've seen about, yeah, this was shared with some people. So that means a couple of things, as you indicated. It means there's a potential for additional criminal charges involved.
also potentially under the same statute that applies to the retention, but also another statute that applies to knowingly and willfully communicating or transmitting national defense information and classified information. For these purposes, for the purposes of the Espionage Act, national defense information is the term that is typically used as opposed to classified. But this particular statute under 18 U.S. Code 798 states,
different from 793, does use the term classified information. Anyway, that's my long legal geek out on the statutory language. But, you know, precision, precision. A friend of mine told me that's why she listens. She wants the geek out. Yeah. And, you know, for me as a lawyer, right, it's all about attention and detail. And I don't want to just gloss over something because that's just not what, you know, that's not what we were trained to do. And in a court, you never do that. We were trained to be boring.
But can you believe it? We're now on a podcast. Yeah. Apparently a lot of people like that stuff. But anyway, so this statute applies to when you communicate or otherwise transmit to someone who has not authorized to see it classified information. And it's an offense with an up to a 10-year penalty. So it opens up the possibility of there being another offense charged. But
But maybe equally as importantly, you know, we've talked before about the Department of Justice, even when it does have evidence to prove a crime beyond the reasonable doubt in court, still has, you know, an element of prosecutorial discretion that is exercised by prosecution. In fact, I thought through my career, that was one of the things that was the most important to me. I could use my judgment. Yeah.
Hardest part.
Whether Jack Smith decides to charge an additional crime for the sharing of this information to unauthorized persons or not, it will be a factor in his exercise of discretion about bringing charges. I have no doubt about that. Yeah.
So one thing that we did at NYU is we did a real deep dive into the prior cases that the department has charged for illegal retention, even when there was no
evidence of dissemination to a third party. And it is routinely charged, as you can imagine, because the government wants to deter that kind of behavior. And, you know, there are famous cases like General Petraeus or Sandy Berger. And, you know, one of the things that we did is we assumed sort of the best case scenario for Donald Trump, which was that there was no dissemination. If there is dissemination, that just makes it
beyond peradventure for the very important issue of making sure that Donald Trump is treated the same regardless of what his last name is. But dissemination of particularly these kinds of documents after
illegally retaining them would be, there's no question that would be charged if it was anyone else. So here he would really be treated substantially better than anyone. I mean, it's just such an important factor, just looking at what the department has done previously. There is another piece that I just thought was what I would call a tantalizing tidbit, which was definitely not
sort of teased out fully in the reporting that there may have been taking of these documents to Bedminster. Right. And
You know, it wasn't fleshed out, but you can be sure Jack Smith is trying to follow up on that if he hasn't already. And that to me, it was reminiscent of what we heard quite remarkably from Trump's now former counsel, Tim Parlatore. I'm not sure if I'm pronouncing his name correctly, but he suggested that Boris Epstein was sort of obstructing the efforts to search for
other locations like Bedminster. So if you put those two pieces together, again, it's wispy from what we see right now, but it's potentially also this idea of lying to your lawyers so that they don't know where things are.
making false representations to the government about what's been produced and essentially tampering with the crime scene and not responding to a grand jury subpoena, which, by the way, as you and I know, we would take really, really seriously because that's sort of the heart and soul of, you know, a key tool that the Department of Justice uses to build cases. Let me just interrupt you there because that leads sort of directly into some of the other reporting that was in the New York Times story.
that pretty shockingly to my mind quoted from the former chief judge of the district court in D.C. from her sealed opinion in rejecting the crime or actually applying the crime fraud exception
in order to order Evan Corcoran to testify because Evan Corcoran did have an attorney-client privilege with Donald Trump, and that can only be overridden by the crime fraud exception or granting immunity or something like that. Well, even granting immunity wouldn't do it unless you were granting the immunity to Donald Trump, but I don't think that's happening here. Even then—
even then it wouldn't apply. He could get immunity and still claim privilege. And still, that's true. You're right. So anyway, crime fraud exception is generally how you would get around attorney client privilege. If you can meet that criteria, which again, we've talked about before is when the attorney doesn't have to be part of the fraud, but when the attorney is being actually used sort of an instrument of fraud to commit a crime by either what's being communicated to the attorney or what's information is being supplied to him, et cetera. And again,
There are actual quotes from Judge Howell's opinion applying that crime fraud exception in the New York Times article. And before we even get into the details of those quotes, basically, it's some quotes with her describing how she's finding that there's sufficient evidence of obstruction of justice by, you know, Trump's communications with his attorneys to go ahead and apply the exception. But aside from that...
Andrew, who's reporting this? Who's sharing this sealed opinion with The New York Times? And is that a problem for whoever is doing that? Well, there's no question if it was somebody within the Department of Justice. And remember, the FBI is an agency within the department. If it's, you know, attorneys at the Department of Justice or agents at the FBI, that's a huge deal. That's improper reporting.
It's under seal. I'm confident Jack Smith and Merrick Garland would take actions with respect to disciplining people like that. I mean, when I was on the Mueller investigation, it would have been by SIA. The end. Yeah, the end.
So, you know, I can't possibly rule that out, but I don't think that's where it's coming from, particularly since one of the defense lawyers for one of the witnesses, you know, is named in some of the reporting. But I just, I think one of the things that's useful to know is in litigating that issue before Beryl Howell, the issue of crime fraud, a number of people will see that opinion. The attorneys, like Mr. Corcoran and his attorneys see it.
Donald Trump sees it and his attorneys see it. So all of those people get to be heard and get to litigate it and they get the final decision. So there are a number of people. Now, if a defense lawyer were to speak today,
Obviously, there's an ethical issue. They would want to be able to do that with their client's permission. But sometimes it is done with their permission because it's to their advantage to try and get ahead of a story. But my experience from the special counsel perspective
Mueller investigation is very often it was pretty clear that's where it was coming from. So I think one of the things for our listeners to think about is, you know, when you see stories like that, it's always useful to know, like, where is this coming from? How should I view the source?
And, you know, obviously there's sort of different people, but it's useful to think of that coming from either the Trump camp or the witness camp and to think about what each side would have to gain from this reporting coming out. But it's not the case. This is something that
only the government knows. And thus, it has to be coming from the government. That's right. And in fairness, there are court personnel who also have access to it. Again, not trying to suggest that that's what happened here, but there would be a number of court personnel who would have access. So we just don't know, but it is surprising to me to see
literal quotes from a sealed opinion. Now, I put that in a different bucket, and I think you would too, from what you mentioned earlier and that I mentioned earlier, that the attorney for the employee at Mar-a-Lago also spoke openly and gave his name to news reporters, but that wasn't about a sealed opinion. That was just his representation of facts that his client was providing to Jack Smith. Yeah, which he's entitled to do. That's not even a leak. Yeah.
That's just like, he's entitled to speak. It's the same way that a witness who goes in the grand jury is entitled to speak about what happened. But, you know, the grand jurors and an attorney for the government is not allowed to. That would be a crime. More prosecuting Donald Trump, the Mar-a-Lago boxes, in just a moment.
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So the other thing that got lots of attention is this very short, pretty childish, in terms of its language, or maybe I'd say intemperate,
letter that was submitted by Donald Trump's attorneys to Merrick Garland saying, essentially, we'd like to be heard with respect to any charges that are brought. Everyone sort of assumes it's- Well, you said that in a much more respectable way than the letter said it, Andrew. Yeah.
That's so unusual for me, but I've cleaned up my act, Mary, for the podcast. Just to say we'd like to be heard, I think that would be fairly normal as opposed to, my client is being treated unfairly. We demand you basically rectify this unfairness. Yes. Well, I did say childish. Yes, you did. You did. I did throw in a little shade. Yes. Yes. You can make a playground, not fair, not fair. Yeah.
Just so everyone knows, it is really typical in a big case for a prosecutor to give an audience to defense counsel. It's actually, as Mary and I have talked about, it is the better practice to do that. I mean, there's no harm. You want to hear from the defense. You want to know whether you're making mistakes factually or legally. You want to hear about the discretionary calls.
There are all sorts of issues that you'd want to hear. And frankly, if you're a prosecutor, there's no downside from doing that. So, you know, do you think younger prosecutors tend to maybe not view it that way? But I think once you're more seasoned, certainly somebody like Jack Smith, you would do that. Then there's the issue of an appeal. And so the attorney general obviously doesn't hear all appeals.
But, you know, in big cases, the attorney general might hear an appeal. Here, it's a little different because you have a special counsel. But my quick take on this is that this may very well, assuming there was a rational actors, this may very well be appealable.
actually an appeal of something that's already happened in front of Jack Smith. Because you just don't really start with the Attorney General. If you started with the Attorney General, the Attorney General is going to, in a New York minute...
Just to show my origins, which by the way, having spent 10 years in DC, I'm like constantly reminding people I'm really a New Yorker. So anyway, in a New York minute, the attorney general would say, you started the wrong level. I mean, you have to talk to Jack Smith. So I just think they didn't want to maybe phrase this as an appeal because it would sound much worse. And they obviously, this letter obviously was given by Trump's attorneys for purposes. Yes.
And so this could be just already the appeal of what Jack Smith is doing. The attorney general, I think, would hear this, but under the standard of the special counsel regulations. And that is not sort of de novo, meaning, you know, that is hearing it. What would I do if I were had the case, but rather, you
Is this such an abuse of discretion on the part of the special counsel that I need to intercede? But I do think that the attorney general would would hear it. That's sort of my guess. And I think it's worth just a pause there, because I do think there's been confusion in some of what I've heard in commentary about how the special counsel regulations work, suggesting that Garland has no role. That's not how they work.
right? Exactly. There's an obligation of the special counsel, much like the same obligation that U.S. attorneys have to send up an urgent report before any significant development or major development in a significant case. And that includes a charging decision. And then under the special counsel regulations, in addition to that, you know,
at the end of an investigation, you have to give a final report to the attorney general. And as you said, the attorney general will basically defer unless he feels like the action being taken or recommended is so unwarranted or inappropriate or outside of
proper procedures that he needs to intervene. But it's not like it's not okay for Merrick Garland to be able to review this decision. I mean, that's actually contemplated within the special counsel regulations. And actually, that is why the special counsel regulations are constitutional. We actually renegaded this, which is that everybody, including Jack Smith, is subordinate to the attorney general. So it really isn't the case that the attorney general is just saying, you do what you want.
I do think, though, that he will adhere to the regulations and the standard there. And one of the reasons I think he'll do that is that we just saw him do that with respect to the John Durham report, which in my mind, you know, I hope I'm viewing this objectively, but I actually think there was some abuse of discretion on John Durham's part, and Merrick Garland still let that go through. So I think this is sort of going to be, you know, it's good for the goose, it's good for the gander in that
he's going to review it, but under that deferential standard. At which point, as soon as there is a decision, then Jack Smith would be free to charge. I think we'll leave to another day our speculation about when that will be. But note to self, I think that will be very soon. But that will be the subject of other podcasts imminently. Maybe next week. So let's just quickly talk, Mary, about the Rhodes case.
sentence, the head of the Oath Keepers. You know, he got 18 years and most notable to my mind, but I'm going to quickly turn this over to you, Mary, as the expert, he received the terrorism enhancement from the judge in sentencing. And I know there's a lot to say about the Oath Keepers, but just focusing on how does that, to your mind, relate to Donald Trump if he were to be charged with
with respect to January 6th. Right. So I think one of the things, and I'll note it, that Judge Maida applied the terrorism enhancement not just to Rhodes' sentence, but also Kelly Meggs. And this morning, one of the other people who had been convicted, not even of seditious conspiracy, but one of the other Oath Keepers who'd been convicted in that first trial was also sentenced, and the terrorism enhancement applied there. And that was to Jessica Watkins.
Now, the judge gave a higher level of enhancement to Rhodes and a lower level to Meggs and Watkins, reflecting, I think, their relative culpability. But what the judge was doing was saying, in this case, even though you weren't charged with a terrorism offense, I am going to enhance the level of your sentencing that raises your sentencing range because there's evidence that your offense was calculated to influence or affect the conduct of government through intimidation or coercion.
And we haven't seen that very frequently in seditious conspiracy cases that don't involve like a foreign terrorist organization or people in the U.S. trying to do something on behalf of a foreign terrorist organization. What's significant with respect to, I think, Donald Trump about this is not so much whether
At some point, if he's convicted of crimes related to January 6th, he'll get a terrorism enhancement. But what it shows is Stuart Rhodes, you may remember, unlike Megs or Watkins, did not go in the Capitol and did not assault a police officer or anybody else. He was more of a ringleader. He was an organizer. He was part of that conspiracy that went on for months before January 6th. And so that's part of what the support for his seditious conspiracy is.
guilty verdict was, as well as conspiracy to obstruct an official proceeding of Congress. But it shows that not only can the government prove up a case against somebody who was part of that conspiracy, that ringleader who never personally set foot in the Capitol, but the government will also seek and a judge will be willing to give a substantial sentence to
to someone who did not themselves personally commit an act of violence that day. And as we've been talking about Donald Trump and those in his inner circle for these last couple of months, I mean,
there's obviously no indication he personally committed any kind of acts of violence or entered the Capitol that day, right? That's pretty clear. Other than maybe throwing a bowl of spaghetti against a wall. Right. That's violent to the wall. But there is evidence to suggest that he had a role in...
in the plan, the scheme that then led to the violent attack. And so again, let's go all the way back to when Merrick Garland did a press conference to say, we're going to follow the facts and the evidence no matter where they lead, no matter how high up they go. And he has repeatedly said, we're searching for accountability and we'll take as much time as it takes to hold people accountable. So I think
that asking for a significant sentence is one thing. And the government did ask for more than 18 years. They asked for 25. And in fact, even though Judge Mehta applied the terrorism enhancement, he still did not sentence as high as that enhancement would have put Rhodes. That enhancement got Rhodes up to a sentence between 21 and 27 years, and he gave him 18. But 18 is a significant sentence, and I think it sends a big message. Huge. I mean, that's an enormous amount of time. It's
So I totally agree with you that this, I mean, it's just going to so play out in terms of this discretionary call if the proof is there in terms of holding Donald Trump to account. The final thought I have is just that for people who are saying, you know, is this going to be too little too late? Just focusing on first on the Mar-a-Lago case, which seems, you know, so imminent in terms of the reporting that, you know,
I do think that, obviously, depending on what judge gets it, and I do think, as you've said, Mary, that it's going to be brought in D.C. for reasons we've discussed, depending on what judge gets it, I do think that there'll be, as long as it's consistent with due process and fairness to Donald Trump, that judges are going to want to see this go to trial before...
the Republican convention before the election so that people have the ability to weigh this in their decision making. Again, the most important thing is to make sure that the defendant has due process and has the right to be heard, to make motions, to defend themselves. But I just think that you could have judges really making sure that the sort of
constant delay that any defendant engages in because nobody wants to have their day in court if you're a defendant or very rarely. Unless you're detained. Yes, exactly. That's true. Although even then, but yes, the calculus changes. But I just think with Donald Trump, he won't be detained and he's going to be trying to delay things. I do think that a judge is going to be really trying to push this forward. And Mar-a-Lago,
leaving aside the classified documents piece is a relatively straightforward case. So this really could go to trial, you know, relatively soon, like within a year. So with that, Mary, it's great to see you twice in a week. Yes, absolutely. But I have a feeling we might be doing this very fast and furious because you really feel like there's shoes dropping left and right. All right. Until next time.
Thanks so much for listening. We'll be back next week with much more. The senior producer for the show is Alicia Conley. Our technical director is Bryson Barnes. Her audio engineer is Cedric Wilson. Jim Maris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.
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