This week on the CAFE Insider podcast, Barb McQuade guest co-hosts with Joyce Vance while Preet is traveling. Barb served as the U.S. Attorney for the Eastern District of Michigan from 2010 to 2017. She is now a CAFE contributor, a law professor at the University of Michigan law school, and a legal analyst for NBC News & MSNBC.
In this sample from the episode, Joyce and Barb discuss the reports that former President Donald Trump took classified documents to Mar-a-Lago instead of giving them to the National Archives, as required by the Presidential Records Act. They also break down Trump’s potential criminal liability for taking the documents, and the national security concerns surrounding mishandling classified materials.
In the full episode, Joyce and Barb discuss:
– The decision by Trump’s long-time accounting firm, Mazars USA, to cut ties with him in response to the New York Attorney General’s ongoing investigation into the Trump Organization; and
– The latest January 6th Committee developments, including the ongoing battle to compel John Eastman, the author of a memo outlining methods for Trump to overturn the election results, to comply with a subpoena, and reports that Rudy Giuliani is in communication with the committee.
Stay informed. For insight into the most important issues of our time, try the membership free for two weeks: www.cafe.com/insider. You’ll get access to full episodes of the podcast, and other exclusive benefits.
This podcast is brought to you by CAFE Studios and Vox Media Podcast Network.
REFERENCES & SUPPLEMENTAL MATERIALS:
44 U.S. Code Chapter 22, Presidential Records
18 U.S. Code §1512 - Tampering with a witness, victim, or an informant
18 U.S. Code §1924 - Unauthorized removal and retention of classified documents or material
18 U.S. Code §2071 - Concealment, removal, or mutilation generally
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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Hey folks, jurists, fancier, pleaded in Miami at the pivot. Am I a conference said today. I'm joined by a special guess, toast farmer, Quaid
What is many listeners may know served as the US attorney for the Eastern District of Michigan. She is now a cafe contributor, a law professor at the University of Michigan LAW School and the legal analyst for NBC News and MSNBC. As usual. We have plenty of news to discuss we're learning that Trump took classified documents tomorrow, Lago, instead of giving
to the national archives, which is required by the presidential record that, in other news from long time, accounting firm, Massage USA has cut ties with him in response to the New York
turning generals, ongoing investigation into the Trump Organization Lard Mc Wait- and I discuss all of this and more on the cafe insider
I cast today were sharing a clip from the episode with listeners if stay tuned, to hear our full conversation and access all other cafe. Insider content. Try the membership free for two weeks. You can do that Cathay, DOT, com, slash insider, that's cafe, dot com, slashing cider,
We look forward to having you as a part of the insider community. That's the perfect backdrop for us to talk about this week's news about the Presidential Records act in this increasing news about documents being a sort of taken back from Mara Log of fifteen boxes of documents that had to be returned from trumped to a very outraged archivist at the national archives. What's interesting, I think about this new right now is that apparently, some of those documents are classified, and that seems to me to be a little bit next level there
NEWS throughout the Trump presidency that he had no respect for the Presidential Records ACT, which requires that those documents be maintained. The act is really important because if, if there's no way to hang on to all of the presidential records and make sure that they all become public at the appropriate time, then history is written completely by former presidents who would get to spend their administrations. However, they wanted to Richard Nixon tried to do that in his library. He tried to portray Watergate as a personal attack on him and he was forced through these document measures to provide a fuller picture to the country, so I dont even need to suggest how damaging that would be with Trump. If he's the one who gets to write his
three hour listeners may not know barbed that you have a really deep background in national security. In addition to your work is in a USA before you became the? U S attorney you round the National Security Sub Committee for the? U S attorneys! Well, while we re- U S attorneys, so I've wanted to hear you
thoughts on whether the knowledge that some of these documents were classified does that turn this into more than a question about turning documents back over to the archives. Does it have maybe a criminal dimension or something serious to it? Now? Yes, it has a potential criminal dimension, because mishandling classified information may constitute a crime depending on the intent back too intent of the person who mishandled it so
There is even a gross negligence level for mishandling of classified information. The worst case scenario is that your intent is to share it with a hostile foreign adversary, but at the very least, I think investigation from a criminal perspective needs to be done to figure out why those documents were. There was just an oversight in her.
of packing to trump himself to it. You have a hard time, imagining Trump ever packing a box in his life that someone else did this for him, but there has also been reporting that he was very particular about making sure AIDS didn't see what was in some of those.
So that perspective. But I think even more urgently, there needs to be an investigation from a counter intelligence perspective. Even if the inclusion of those documents in the boxes was inadvertent, there is still a concern that that information has gotten into the wrong hands. This is sometimes referred to as a spill, unintentional disclosure of classified information, and the worry is that this is now shared with the world
compromises. Others. These were labelled choice at the top secret level, that is a very high, lovely and others. Their secret Topsecret is defined it's a little bit circular by what the consequences would be if the contents were disclosed, it has to be within the category of national defence information, but it means that if this document were disclosed, it would cause exceptionally grave harm to the national security of the United States. So you know this: isn't just somebody put a rubber stamp on their lunch order. This is national defence information, the disclosure of which would be exceptionally grave to the national security of the United States,
and so there needs to be some investigation done to determine number one. Have any sources been compromised in that is, we are we ve got an asset in Russia who is posing as a diplomat or as a traveling salesman,
and we need to get him out of harm's way, because now that this information is out there in the ether we don't Donna who has access to it, his life may be in danger or
it may be, that an investigation that that person was working on has now been compromised because of this disclosure, the other one is methods. Topsecret designation often covers methods of collection. There are all kinds of ways: the government collects information, surveillance techniques that are unknown to the public and if those get disclosed, it compromises those things. You know that FBI oftener. Firstly, this is going dark. So if there is a particular.
Channel of Communication that their aim to monitor, and now that gets compromise. It immediately goes dark. Everybody stops using it. They moved to some other method of communication, and so you lose the visibility that you had into that and then of course, the worst case scenario is that this information was substantive, the location of troops, location of weapons, capabilities of our military, so any of those things would be very damaging, and I think somebody at the very least has to come in and assess the damage, so that can be mitigated. So Trump has notoriously declassified documents to serve his own purposes in the past. Do you think he could use? That's enough, I'm gonna say as a defence, even though its not occur
when a proceeding. But could you just say well, I D classified these documents like he did with documents that compromise the security of israeli operatives or put on twitter pictures of installations in IRAN. Can you do that here? He can't do it retroactively, because
it's, not the president anymore. We no longer has the power, but I suppose, if you were to say
on January 20th, at one thousand one hundred and fifty nine a dot m, instead of being at the swearing in of my successor to signal the peaceful trance
power, I was it back at the White House declassified these documents that are can play around with them and you
and to have someone right my memoirs for me. So I think there is a possibility, but that is now-
alleviate the counter intelligence concern, which would require an assessment of where this information went, even if he irresponsibly declassified it, and even if he had the authority to do that. Someone at some time did market Topsecret took the time to get their topsecret stamp out. Put that in a safe handle it carefully, because they believed that the disclosure of that information would cause exceptionally great harm to the national security of the United States. So I take your point that there has to be national security investigation, no matter what, in this situation the question I've heard a lot of people asking and even folks suggesting that there could be criminal implications for this and pretend I talked about this last week. A little bit is that the clean case here would be if there was intent. I think we're going to spend the whole pod cast today talking about and tat if there was intent that these documents were taken to Morrow Logo, or some of them were
the intent to obstruct a future investigation. That would be a violation of specific eighteen: U Dot, SC one thousand five hundred and twelve. I think that's the sort of thing that could get criminal attention, but intense it's hard to prove, and there are other options here: there's a eighteen USC, one thousand nine hundred and twenty four that talks about unauthorized removal and retention of classified documents. There's eighteen USC, two thousand and seventy one that talks about
feel my removal mutilation of documents. Do you think either of those could fly d? Think Deo J would prosecute the act of removing classified material by a former president. I don't. I think that the penalties are three years which is not insubstantial, especially in times of war and president. But, as you know, during the principles of federal prosecution have two pronged one is, I always refer to as the can we,
large prong and the other is the: should we charge prong, I do the same thing. That's the whole theme of my fear that too, but you just did the demo down for myself. That's where I think of it. I'm sure they're, more precise legal terms for that. But the can we charge prong is: do we have evidence to prove each and every element beyond reasonable doubt? We think its probable that we can obtain and sustain a conviction. So if you are able to find that that would include that evidence of TED you're not done with the inquiry, you know you dont charge every case. This is what is known as prosecutor discretion. You try to use the scarce resources of the Justice Department to advance substantial federal interests, and I think, if you think about the downside of charging a former president during the administration of his successor, I think it does set a damaging precedent and me, I don't think we would want the next president to be
prosecuting Joe Biden lightly, but I think that if he was intending to obstruct the work of the January six committee, for example, or sharing classified information with foreign adversaries, then I think that is a big enough deal, that it would advance a substantial federal interest and, despite the downside of charging of our present in an appearing political, I think he'd have to charge that one. So I think this should we charge prong would be just as important here is the can we charge per it's obviously very fat, specific inquiry and I think you're right. You know virtually every president walks out with some documents, sometimes with permission to use in their library. Sometimes folks, presidents and other people in government will walk away with some documents that they want to use to write a book. Usually it doesn't result in prosecution. It results in negotiation. Where
archival tries to get the documents that here she believes that they need that. There has been, though, a recent prosecution in this area, a woman in Hawaii was charged with removal and retention of classified materials. She was successfully prosecuted. She received a sentence of only three months of imprisonment, so a little bit less than what the statute justifies. But it's interesting to note that in that case, she's overseas, she serving a detail overseas and she's, removing very sensitive documents that relate to on the Indo Pacific Command. Other military, sensitive
arguments and that's the sort of situation where there is a prosecution D. Think that cases helpful at all in understanding, prompt and what you just explained about. Can we prosecute versus? Should we prosecute
think it does shed some light on this. Should we prosecute prong because, as you say it, it doesn't sound like somebody who accidentally had a few pieces of paper. In a brief case, it sounds like somebody who deliberately remove classified information. She also had some notes relating to national defence information and she had it lying out in planes
at a party she hosted overseas, and so, when you are in an overseas post, there is a very real risk that the information could be compromised and for other reasons we discussed earlier about compromising sources or methods or capabilities could be
very damaging to the national security. So is an important one, and you know when you prosecute people. A main purpose for prosecution is deterrence, and so you want to let people know that there is a cost for mishandling classified information, and so you know in this case it does suggest why it's a danger
who gets prosecuted. But I think it does show that this is not a absent minded moment. This
is an intentional removal and then a extremely reckless at the very least here
one of those by hand having them out in the open when you have guests in your home, some people have suggested that trumped should be prosecuted under twenty seventy one, because it would prevent him from holding office in the future. Of course, the constitution sets up the criteria for someone to hold the the office of the presidency. What do you think about the notion that a twenty seventy one office could prevent him from being president in the future? You know a statute that conflicts with the constitution is unconstitutional, so in others that other method by the fourteenth amendment that bars people from holding office in the future, so but that provision is tricky because it doesn't really explain the mechanism for making such a fine
You know it doesn't have to be a bad, a court does it have to be by Congress, so I dont know that that sir, a foolproof method, in fact I'd, be sceptical that it works. What do you think you know? I am reminded that Steve Ban and has always been explicit, that his goal is to burn things down right, took to create chaos, and if you want to talk about chaos, you could have a twenty seventy one prosecution and people claiming that trunk couldn't be president with an election that he, God forbid winds and that sort of disaster chaos scheme. I think D, O J, has a legitimate interest in acting carefully here. Sort of almost like doctors would to first do no harm and part of the harm here is more chaos in our system, more damage to the rule of law. I think we ve talked a lot about the fact that merit garlands goal here is,
restore the rule of law and the fact that Dear J is a political and people have a concern that that means that he won't hold trump accountable, but there's a line between what you're talking about these sorts of prosecution
and made during you know well trumped successor is in office that could appear to be purely political,
and prosecutors that are clearly merited for criminal conduct. That has nothing to do with politics. That's a hard line at the little bit fuzzy, but I think it's important
Always remember: we don't want to be a banana republic, where every president can look forward to being prosecuted by his opponent once he's out of office which takes us interesting Lee enough to Hillary Clinton, lock her up, you know, but her emails. She is pronounced by Trump during the campaign for using a private server for having a limited number
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Transcript generated on 2022-02-15.