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--:-- Noelle King: Welcome to Today Explained. I'm Noelle King.
--:-- Noelle King: In his role as Attorney General, Merrick Garland has been the silent type. Since I became Attorney General, I have made clear that the Department of Justice will speak through its court filings and its work. He has his reasons. Much of our work is by necessity conducted out of the public eye. We do that to protect the constitutional rights of all Americans and to protect the integrity of our investigations. But exactly one week ago, Merrick Garland was in the position of needing to say something. Republican lawmakers and some regular Americans were going after the FBI, conspiracy theorizing about the raid on Mar-a-Lago. So Garland made himself clear. I personally approved the decision to seek a search warrant in this matter. The attorney general spoke for fewer than four minutes, and now a lot of work lies ahead. Coming up on Today Explained, Merrick Garland's dilemma.
--:-- Noelle King: Support for this show comes from ServiceNow. AI is only as powerful as the platform it's built into, don't you know? That's why it's no surprise that more than 85% of the Fortune 500 use the ServiceNow AI platform. Didn't know that. While other platforms duct tape tools together, ServiceNow seamlessly unifies people, data, workflows, and AI, connecting every corner of your business. And with AI agents working together autonomously, anyone in any department can focus on the work that matters most. I've never met an AI agent. Learn how ServiceNow puts AI to work for people at servicenow.com.
--:-- Noelle King: Support for this show comes from strawberry.me. Be honest. Are you happy with your job? Or are you stuck in one you've outgrown? Or never wanted in the first place? Sure, you can probably list the reasons for staying. But are they actually just excuses for not leaving? Let a career coach from strawberry.me help you get unstuck. Discover the benefits of having a dedicated career coach in your corner. Go to strawberry.me slash unstuck to claim a special offer.
--:-- Noelle King: It's Today Explained. I'm Noelle King. Zach Beauchamp, senior correspondent at Vox, what do we know about the investigation into Donald Trump that we didn't know last week?
--:-- Zach Beauchamp: We learned more or less what Trump was under investigation for, right? Like why they raided his house. We knew it related to classified documents, but we didn't know exactly what the legal authority was for pursuing him.
--:-- Noelle King: It turns out that there is a suspicion in the Justice Department that his handling of classified documents at Mar-a-Lago, I mean bringing it there in the first place, was in violation of three different statutes. One of which, the most important and significant, is the Espionage Act.
--:-- Zach Beauchamp: Not just about spying, as it may sound, but in general governs the handling of information by government officials and non-government officials for that matter. It was the authority for the prosecution of Julian Assange.
--:-- Noelle King: What is the either potential or alleged crime that the DOJ is investigating?
--:-- Zach Beauchamp: What we should look at is something called Section 793 of 18 U.S. Code Chapter 37. So broadly, it covers the mishandling of national security information that could possibly harm the United States or aid its enemies.
--:-- Zach Beauchamp: So we're talking about classified documents to be sure, but also anything having to do broadly with national defense information potentially being stored unlawfully in the former president's home.
--:-- Noelle King: What do cases against people who are charged with violating the Espionage Act typically look like?
--:-- Zach Beauchamp: Usually it's not a former president. We can start there. Who is it usually? No, it is basically never. One example is Julian Assange, the head of WikiLeaks. Assange was charged with violating the Espionage Act by disseminating classified information.
--:-- Noelle King: Another example is Reality Winner. I'm not a traitor. I am not a spy. This is a person who is a contractor with the National Security Agency, leaked a classified report about Russian meddling in the 2016 election to The Intercept.
--:-- Zach Beauchamp: Something in the documents that were posted by The Intercept allowed Winner to be identified by the government and was arrested shortly after the story was published. I am somebody who only acted out of love for what this country stands for.
--:-- Noelle King: Another famous case, an older one, is Daniel Ellsberg, who was tried in 1973 for leaking the so-called Pentagon Papers, all these documents about the Vietnam War and the U.S. government's handling of it that were pretty damning to the Washington Post and the New York Times.
--:-- Zach Beauchamp: Ellsberg's case was dismissed, and both he and Winner had legal access to their documents. Assange did not. Those are sort of a variety of different cases. But generally, the thing that ties them together is that somebody got some classified information and leaked it publicly.
--:-- Noelle King: How has Donald Trump been responding to all of this?
--:-- Zach Beauchamp: So Trump does what he always does, right, which is like throw shit at the wall and see what sticks. Former President Trump is battling back against the Justice Department. He is demanding that the department release to him and to the public the underlying evidence and justification for the search at his Mar-a-Lago residence.
--:-- Noelle King: He has argued that Barack Obama also retained classified information. That's not true.
--:-- Zach Beauchamp: He said that the documents that were acquired in the search were planted, especially the damning ones that, as far as we can tell, is completely made up. He also claims that he declassified all of the documents. There's no public evidence of him having declassified this stuff.
--:-- Zach Beauchamp: But one variant of the argument that has been picked up on especially among right-wing commentators has been that the president just like – if the president takes a document out of a government building, then the president declassifies it basically using the powers of their mind.
--:-- Noelle King: The feds say they seize classified documents. How'd they know that? Just because some little lawyer didn't put a C on the bottom of the page?
--:-- Zach Beauchamp: You don't need a little C on the bottom of the page. Once the president says something's declassified, that's it. The rest is bookkeeping.
--:-- Noelle King: It something akin to like you know there that scene in the office where Michael Scott wants to declare bankruptcy And instead of going to file the legal process where he declares bankruptcy he says I declare bankruptcy This is basically the presidential equivalent of that is how the argument works.
--:-- Zach Beauchamp: Does the argument that when a president leaves the White House with documents, those documents are then declassified by dint of the fact that he's the president and he's leaving with them. Does that hold water?
--:-- Noelle King: What do scholars tell us about that?
--:-- Zach Beauchamp: So it's obviously not something that's ever been tested in court, right? So we don't have authoritative rulings that would answer the question. My gut read of what I've seen so far is that that is not going to be an effective defense, right? Like if Trump had tweeted out the document, maybe that would be different than just like taking it home, right? Because you're choosing to make it public rather than just sort of like hiding it.
--:-- Zach Beauchamp: I also don't know if that distinction would hold. What I do know is that there are certain documents the president does not have unilateral authority to take and handle as he might choose. So even if the declassification theory is true, and I'm very much not confident that it is, there are other regulations governing the handling of these documents and their storage.
--:-- Noelle King: What are the odds, Zach, that Donald Trump will be charged with something?
--:-- Zach Beauchamp: Nobody knows. Literally nobody knows. Part of it is that the Garland Justice Department has been very leak-free. Since I became attorney general, I have made clear that the Department of Justice will speak through its court filings and its work.
--:-- Noelle King: Unlike the Mueller investigation, where there was like a constant drip, drip, drip of information coming out about what they were doing about Trump throughout that entire Russia inquiry, We just don't know a lot about what the Justice Department is thinking about trying the former president.
--:-- Zach Beauchamp: And until we have information about how strong they think the case is, how Merrick Garland is thinking about the political consequences of indicting a former president, there's just too many variables for me or anyone else on the outside to be able to make some kind of authoritative assessment.
--:-- Noelle King: Hey, do you think Merrick Garland knows if Trump will be charged?
--:-- Zach Beauchamp: I don't know if he knows. He may not have made up his mind yet.
--:-- Noelle King: The thing is they just got these documents. Federal law, longstanding department rules, and our ethical obligations prevent me from providing further details as to the basis of the search at this time.
--:-- Zach Beauchamp: They probably need to go over them and look at them and then look at the evidence, any other evidence they got from the search of Mar-a-Lago.
--:-- Zach Beauchamp: Did they learn more about how it was secured there? And then there are also like other prosecutions. There's investigations of Trump in Georgia about his election interference allegedly. There's two different cases in New York at least, right, like one at the state level and one at the Manhattan level relating to the Trump organization's business practices.
--:-- Noelle King: And so we have all of these different legal lines of inquiry into the president. Then there's the one that we know the Justice Department is pursuing related classified documents. And like any one of these could result in an indictment of Trump down the line.
--:-- Zach Beauchamp: We just don't know where they're going. One piece of information Garland does have is he knows what the documents were. And since we don't know, we don't know how seriously dangerous it was that they were there.
--:-- Noelle King: And the more serious they are, the more Garland may feel that he has no choice but to indict the president.
--:-- Zach Beauchamp: This is all I can say right now. More information will be made available in the appropriate way and at the appropriate time. Thank you.
--:-- Noelle King: Support for Today Explained comes from Built Rewards. These days, it seems like everybody has a rewards program. You swipe your card and you get one cent on the hundred dollars. But with your rent, frequently, you just pay month after month. You never get anything from it other than that roof over your head. Not anymore, says Built Rewards.
--:-- Noelle King: Built Rewards says it lets you earn points on your rent. By paying rent through Built, they say you can earn flexible points that can be redeemed toward hundreds of hotels and airlines, perhaps a future rent payment, your next Lyft ride, and so much more.
--:-- Zach Beauchamp: Your home isn't just where you sleep, it's your community, and Built wants you to go out and do things in the community. You can eat at your favorite local restaurants, then earn more points. You can get VIP treatment at certain fitness studios. You can enjoy exclusive experiences just for Built members every month.
--:-- Noelle King: When you're ready to travel, they say Built points can be converted to miles or hotel points all around the world.
--:-- Zach Beauchamp: You can earn points on rent and around your neighborhood wherever you call home by joining built.com slash explained.
--:-- Noelle King: That's J-O-I-N-B-I-L-T dot com slash explained.
--:-- Noelle King: Support for the show comes from Charles Schwab. At Schwab, how you invest is your choice, not theirs. That's why when it comes to managing your wealth, Schwab gives you more choices.
--:-- Zach Beauchamp: You can invest and trade on your own. Plus, get advice and more comprehensive wealth solutions to help meet your unique needs.
--:-- Noelle King: With award-winning service, low costs, and transparent advice, you can manage your wealth your way at Schwab.
--:-- Zach Beauchamp: Visit schwab.com to learn more.
--:-- Noelle King: My parents! It's Today Explained. I'm Noelle King.
--:-- Noelle King: We're back with Vox's Zach Beauchamp. And Zach, I guess there were always going to be two big questions. What might Donald Trump have done? And how would the Republican Party respond to all of this messiness?
--:-- Zach Beauchamp: Republicans had an opportunity to say, OK, we got really mad about Hillary Clinton storing classified information improperly on her private server in 2016.
--:-- Noelle King: Secretary Clinton sent and received emails that contained highly classified information. If the average American did that, they'd lose their clearance, their job, and might even go to jail.
--:-- Zach Beauchamp: And maybe we should apply the same standard to what looks to be a much, much, much more serious mishandling of much much much more serious classified information They decided to do the exact opposite of that So the entire response of the Republican Party as an organized institution has been to say this is a politically motivated witch hunt The FBI raid of President Trump is a complete abuse and overreach of its authority.
--:-- Noelle King: To double down on the idea that the FBI and the Justice Department are tools of the Democrats, the deep state and the capital R regime.
--:-- Zach Beauchamp: So I think every Republican believes that the FBI, when it comes to Trump, and other organizations have lost their mind.
--:-- Noelle King: It seems like nearly the entire apparatus of the Republican Party, from the institutional party to state and local officials to conservative media, they've all aligned themselves with Trump or said nothing, with just a handful of prominent party members starting to speak out against Trump and in support of the FBI.
--:-- Zach Beauchamp: Mike Pence. Yeah, this one was actually a little bit surprising, but it seems like Pence, despite taking a somewhat craven position after being literally threatened to be hanged by Trump supporters on January 6th, is starting to be a little bit more outspoken in positioning himself in opposition to some of Trump's stance, not all of them.
--:-- Noelle King: He hasn't said he wouldn't vote for Trump or anything, but he said, and I quote, these attacks on the FBI must stop. Calls to defund the FBI are just as wrong as calls to defund the police.
--:-- Zach Beauchamp: That is a really interesting line, right? Like that's the pushback that you've been seeing from some of the more never Trumpy, very establishment-minded Republicans who are frustrated with the Trumpy wings, anti-FBI demagoguery.
--:-- Noelle King: But Pence is, I would say, probably the most prominent Republican to take this position so publicly.
--:-- Zach Beauchamp: Let me ask you about the Republicans who didn't take the Mike Pence route. How did House Minority Leader Kevin McCarthy respond?
--:-- Noelle King: McCarthy called for an investigation into Merrick Garland as soon as he takes the Speaker's gavel. Why would you go to this level without just communicating? That's what's different to me. Why would you have him wait?
--:-- Zach Beauchamp: So many questions I think all of America's asking. Which could be as soon as 2023. If McCarthy in fact does retake the House, he's going to conduct a politically motivated inquiry into a neutral investigation that he is alleging was in fact politically motivated.
--:-- Noelle King: Which is Orwellian in one sense, but also disturbing in another because it's the weaponization of the U.S. House against one of the core institutions of U.S. democracy, a guardrail that prevents the abuse of power by powerful people.
--:-- Zach Beauchamp: How did Florida's governor, Ron DeSantis, respond?
--:-- Noelle King: Yeah, look, DeSantis is the only plausible 2024 candidate except for Trump. He also could have gone in two directions, trying to position himself as somebody who didn't do these terrible things that Trump did in advance of the 2024 race. Again, he did the opposite of that.
--:-- Zach Beauchamp: They're enforcing the law based on who they like and who they don't like. That is not a republic. Well, it may be. It's a banana republic when that happens.
--:-- Noelle King: Shortly after the news broke, he sent a tweet accusing the search as being an operation of the capital R regime, which is a term that you typically find associated with a sort of fringe right intellectuals on the internet.
--:-- Zach Beauchamp: The idea of using that term is to claim that there's a kind of shadowy cabal of people who actually run the government, a confluence of big business and entrenched liberal interests and academia and like this whole melange of different liberal forces in society as they see it, right? And the government is doing their bidding in this case.
--:-- Noelle King: For him to say that, to essentially accuse the search as being part of a conspiracy against conservatives, it's really profoundly disturbing.
--:-- Zach Beauchamp: He's not only putting himself on Trump's team. He's putting himself on the same team as the more conspiratorial elements of the Trumpist coalition.
--:-- Noelle King: What did Senate Minority Leader Mitch McConnell say?
--:-- Zach Beauchamp: Ah, now Mitch McConnell is – he's a little cagey, right? So McConnell basically said, you know, we need to see some serious evidence about this. He asked to see the warrant. He wanted to understand what was going on.
--:-- Noelle King: He was, I would say, the most influential and powerful Republican not to jump on the this is a conspiracy train.
--:-- Zach Beauchamp: He didn't condemn them either, which would be the responsible thing to do. He's, again, trying to do this balancing act between not going full Trumpist but also not rejecting that tendency of the Republican Party in case he needs it.
--:-- Noelle King: And a question we have to ask is, is there any merit to what Trump supporters in Congress are saying, that this raid was politically motivated?
--:-- Zach Beauchamp: Garland decided based on the evidence that he had and actually quite a long period of time of negotiating with Trump to try to get the documents back.
--:-- Noelle King: and Trump was not just like handing them over, that they had no choice but to send people to execute a search warrant and take the documents, which they did.
--:-- Zach Beauchamp: They then provided a listing of what the documents are, at least in broad strokes. Most of them just said like the level of classification of the documents in a particular box.
--:-- Noelle King: One of them said information RE president of France, which is hilarious. I'm like really curious what it is about Emmanuel Macron that Trump took home.
--:-- Zach Beauchamp: But like we know that the documents were there now, right? They took them out of Mar-a-Lago. They existed, right? This isn't just some kind of made-up thing designed to get Trump and make him look bad.
--:-- Zach Beauchamp: He had the things that he should not have had and they took them away. And then the question is whether what he did constitutes a federal offense under the Espionage Act or some other statutes. Maybe. We'll find out. But right now, we have every indication that this was very cautiously pursued deliberately over the course of months after Trump refused to turn over the documents without the FBI showing up.
--:-- Noelle King: So I just don't know what to tell people who see this as a conspiracy theory. Like I get why you're concerned about it, especially if you voted for Trump in 2020. But you can't let those concerns turn into like a totally unreasonable suspicion of something that based on what we see right now really does appear to be on the level.
--:-- Zach Beauchamp: Are there any Republicans who have come out and said, I don't support Donald Trump on this?
--:-- Noelle King: Even Mike Pence kind of hedged and said, don't mess with law enforcement. Don't mess with the FBI. They're few and far between. You're Liz Cheney's and you're Adam Kinzinger's, right? People who are very very already skeptical of what the Republican Party is doing with Trump and basically hate him
--:-- Zach Beauchamp: This past weekend Brian Fitzpatrick who a Republican from Pennsylvania went on Face the Nation and basically told other Republicans like don jump to conclusions about what the federal government is doing. They are not your enemy.
--:-- Noelle King: We live in a democracy that's 246 years old. That's not long. That's just a few generations. And yet we're the world's oldest democracy. And the only way that can come unraveled is if we have disrespect for our institutions that lead to Americans turning on American and the whole system becomes unraveled.
--:-- Zach Beauchamp: And a lot of that starts with the words we're using.
--:-- Noelle King: What does all of this disarray mean for an institution that Americans, for the most part, 10, 15, 20 years ago, seemed to trust more or less, the FBI?
--:-- Zach Beauchamp: Look, I see what's happening to public perceptions of federal law enforcement as a symptom of a broader disease, right? There's just been a pretty wide collapse in trust in government institutions across the board.
--:-- Noelle King: And that owes primarily to – I mean among other causes – to political polarization, to a sense that when a government institution makes decisions that go against your party, that they are acting immorally, illegally, improperly, et cetera.
--:-- Zach Beauchamp: And then also by members of the two parties, but I think in my judgment, especially Republicans, working to politicize these institutions, either like in the case of the Supreme Court, treating it as a political post basically in terms of how appointments work and ensuring that they get a majority on it to change policy and in terms of the FBI and the Justice Department deliberately trying to cast them as political actors even when they're not acting politically.
--:-- Noelle King: People are so identified with their political parties that attacks from one party on an institution are less likely to undermine the party than they are to undermine the institution itself.
--:-- Zach Beauchamp: I think we are starting to see polarization of opinions about the Justice Department and the FBI. But that's part of a much bigger problem that is chipping away at the kind of broad-based respect for government that's at the heart of American democracy.
--:-- Noelle King: Today's episode was produced by Victoria Chamberlain. It was edited by Amina El-Sadi. It was fact-checked by Laura Bullard twice. Fun story there, I'll tell you sometime.
--:-- Zach Beauchamp: It was engineered by the great Afim Shapiro.
--:-- Noelle King: I'm Noelle King. It's Today Explained.
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