Donald Trump appears on Fox News for an interview with Bret Baier on June 19, 2023.
It feels so long ago since the discussion was whether Donald Trump would sit down for an interview with Special Counsel Robert Mueller in the Russia probe to help make it go away, and so long ago now since reports said the former president’s lawyers ran away from that proposition — fearing that Trump would only get himself in deeper trouble by talking. Special Counsel Jack Smith doesn’t have to concern himself with such things, because Trump’s Fox News interview with Bret Baier on Monday was about good as getting him on the witness stand and hearing him say: Yes, I willfully retained classified national defense information.
On a day when a protective order, unopposed by his lawyers, was issued in the Mar-a-Lago-Espionage Act case, Trump engaged in a course of conduct on national TV that was anything but protective of himself.
Asked by Baier why he didn’t return the documents to the National Archives, Trump offered an explanation that confirmed he willfully did not return the documents, which the DOJ sought via subpoena in May 2022 before the FBI’s Mar-a-Lago search in August 2022 — after Trump “jerked around” the government for more than a year, as the 77th and 85th U.S. Attorney General Bill Barr put it.
“Why not just hand them over then?” Baier asked, with regard to the subpoena.
“Because I had boxes — I want to go through the boxes and get all my personal things out. I don’t want to hand that over to NARA yet. And I was very busy, as you’ve sort of seen,” Trump answered.
There’s a lot going on here and this is going to reviewed: Trump on the recording of him pic.twitter.com/JpohMqb2Li
— Acyn (@Acyn) June 19, 2023
Then came an exchange that the conservative blog Hot Air deemed a possible confession to obstruction, a charge Trump also faces. Recall: According to the feds, Trump “endeavored to obstruct the FBI and grand jury investigations and corneal his continued retention of classified documents” in several ways, including by allegedly “directing” alleged co-conspirator Walt Nauta to “move boxes of documents to conceal them from TRUMP’s attorney, the FBI, and the grand jury.” The indictment said that Trump’s alleged scheme to hide the documents was why his lawyer-turned-witness submitted a false disclosure in June 2022 that the classified materials were returned to the U.S. government (the disclosure was signed by Christina Bobb and authored by Evan Corcoran).
“Yeah. But according to the indictment, you then tell this aide to move to other locations after telling your lawyers to say you’d fully complied with the subpoena, when you hadn’t,” Baier said after Trump’s too-busy defense.
Trump noticeably didn’t deny what Baier said. All he did was confirm that he delayed returning the documents — and for a reason: His personal things were mixed in.
“But before I send boxes over, I have to take all my things out of them. These boxes were interspersed with all sorts of things,” Trump said.
Federal prosecutors say FBI agents seized these materials from Mar-a-Lago. The contents of the documents were redacted with white squares. (Image via an Aug. 31, 2022 federal court filing.)
Here are the “sorts of things” the government alleged was in Trump’s boxes:
The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.
Unsurprisingly, Trump’s performance did not score high marks from legal experts, who pointed out that being too busy or not desiring to comply with the law is not a defense.
Trump invoked the “It didn’t fit my schedule” Defense to the Espionage Act
— Scott Shapiro (@scottjshapiro) June 20, 2023
DOJ: Give us the documents.
TRUMP: I cannot. The documents are in BOXES.
DOJ: We don’t want the boxes. Just give us the documents.
TRUMP: I have ALL SORTS OF THINGS in my boxes. https://t.co/GJIZDqjo3I pic.twitter.com/gEIsZWmrwa— Eric Columbus (@EricColumbus) June 20, 2023
“I don’t want to hand that over” is not, to my knowledge, a legal defense. https://t.co/6XLWXfrM6a
— Orin Kerr (@OrinKerr) June 19, 2023
It seems like deputy special counsel Bret Baier filleted the defendant today.
— George Conway (@gtconway3d) June 19, 2023
Also, how long does it take to grab some golf shirts out of some boxes? Or, put differently, how long does it take to open the boxes and remove anything with a big bold “Classified” cover sheet, which evidently dozens of documents in these boxes had? https://t.co/tjVvhpfjgp
— Neal Katyal (@neal_katyal) June 20, 2023
18 U.S. Code § 793(e), it should be noted, says the following (emphasis ours):
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; […] Shall be fined under this title or imprisoned not more than ten years, or both.
Even the places where Trump’s supporters might say “Hey, look! That ‘secret’ Iran attack stuff he was bragging about on the recording wasn’t even a real thing,” the former president runs into trouble. As attorney Mark Zaid observed, the recording of Trump talking about having “secret” and “confidential” information is important not because it necessarily proved he had the documents, but because it “demonstrated [Trump] understood declassification.”
It wouldn’t surprise me he didn’t have this particular doc & he was just trying to stroke his ego of importance & impress.
Doesn’t matter. That’s not the value of audiotape for prosecutors. It’s that he demonstrated he understood declassification & he possessed classified docs. https://t.co/r6PlnSpvcM
— Mark S. Zaid (@MarkSZaidEsq) June 20, 2023
“TRUMP told the individuals that the plan as ‘highly confidential’ and ‘secret,”” the indictment said. “TRUMP also said, ‘as president I could have declassified it,’ and, ‘Now I can’t, you know, but this is still a secret.’”
The interview was such that Fox News’ Brit Hume remarked on Trump’s “incoherent” legal explanations by saying they won’t “hold up in court”:
Fox News’ Brit Hume: Donald Trump’s explanations on why he took documents “verge on incoherent”. (Video: Fox News) pic.twitter.com/3598XunTaC
— Mike Sington (@MikeSington) June 19, 2023
Perhaps the right to remain silent needs to make a comeback.
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