What the DOJ Should Do About Trump
Mary Curtis: When news broke last week that the FBI was searching Mar a Lago, it took Ankush Khardori a few minutes to process the headlines.
Speaker 2: Honestly, it was momentarily surreal. Truly.
Mary Curtis: Ankush writes for a couple of different news outlets now. But he used to work for the Justice Department. He’s gotten used to the agency’s cautious approach to Donald Trump. So he was stunned when reporters confirmed that the DOJ sent federal officials to retrieve classified documents from the former president’s home.
Speaker 2: Is this really happening? It’s so assertive and unexpected, but it was crazy. It was really crazy.
Mary Curtis: Now, Ankush is trying to slot this piece of information into the bigger picture of what we know and what he knows. As a former federal prosecutor himself.
Speaker 2: It’s like endlessly vexing because you get these kind of data points, but then you try to say, okay, if I were prosecuting or investigating this case myself, like, what is the full gamut of information that I would want or need to kind of reach some sort of informed decision? And it’s always way, way, way more than is publicly available.
Mary Curtis: What’s publicly available is that there’s a whole constellation of investigations into or related to Trump, both his administration and his business. But the signal to noise ratio is what concerns Ankush when it comes to these open inquiries.
Speaker 2: Because they really are kind of all over the map at various stages of progress and sort of public obscurity and being conducted by various people. And I think there’s a lot of smoke. I suspect a lot of people have not been able to follow the ins and outs and the differences between all these things closely. And there are meaningful differences.
Mary Curtis: The search at Mar a Lago felt like a familiar moment to Ankush an opportunity for federal prosecutors to engage with the public about their approach to the former president. Ankush worries that this opportunity is slipping through prosecutors hands.
Speaker 2: There are often these pops of news. We get a little bit and then all of a sudden it’s there’s a huge vacuum and it’s filled in with all of this speculation for weeks, if not months. I just think in these times, historically, it’s been a very sort of perilous time for, I think, earnest news consumers. And I’m afraid we’re maybe in the middle of another one of those periods.
Mary Curtis: Today on the show, Ankush Khardori is going to shade in some of the context that Justice Department officials are so hesitant to explain when it comes to the potential misdeeds of the former president. I’m Mary Curtis, filling in for Mary Harris. You’re listening to What Next? Stick around.
Mary Curtis: Ankush Khardori doesn’t begrudge anyone being a little breathless in the wake of the FBI search at Mar a Lago. It’s a big deal.
Speaker 2: The fact that there was a search of Trump’s home, it is historically unprecedented and I think understandably attracts a lot of people’s attention because obviously we’ve had at least one presidential candidate actively under investigation at a campaign season. That was Hillary Clinton, whatever one makes of that investigation. Right. But there was nothing as dramatic as this. This is more intrusive than any law enforcement action, so far as I can tell, that’s ever been taken against or concerning a former president, regardless of whether or not he’s charged or not.
Mary Curtis: Could you remind listeners. Because I probably forgot. What was the significance of the Hillary Clinton email saga? And how does that relate to the law at the center of the classified documents taken from Mar a Lago?
Speaker 2: Obviously, we all went through a very public saga involving Hillary Clinton and her emails. Look, factually and legally, there were significant differences. The fact that the FBI conducted a fulsome investigation and then came to the view that based on sort of really largely discretionary factors, that they weren’t kind of charged. Clinton, I think, is a potential resolution that we may see here. But, of course, you know, politically, Trump really hammered Hillary Clinton on that investigation used to his benefit. It is absolute height of irony that he’s now under investigation for doing something even worse potentially than she did not in like I’m wishing for this man’s downfall kind of way, but truly in just a cosmic literary sense. It is quite ironic and amusing.
Speaker 2: Yes. I mean, it hovers over this over this investigation in a sort of atmospheric way. But I think for the people at the Justice Department, it will be extremely important to them in terms of making sure that there is as much of a 1 to 1 relationship between how they conducted that investigation and this investigation. And I imagine Merrick Garland, being someone who’s been a judge for 20 plus years, is going to be very, very attuned to that. It’s something he talks about all the time, making sure people are treated equally.
Mary Curtis: Trump is no stranger to being investigated by a lot of folks, and he’s been playing cat and mouse with federal investigators for years. Does this action, this search change anything, move anything forward?
Speaker 2: You know, there are several different kind of investigative streams involving Trump even today. Right. And I’m referring to whatever it is the Justice Department is doing concerning January six. We’ve had investigations all the way going back to Mueller, to a couple of impeachments. And I’m not sure that this one is materially different just yet. But I kind of suspect that one of, if not the principal objective of this search last week was to retrieve the documents. I’m a little skeptical of the notion of a prosecution here.
Mary Curtis: Why are you skeptical?
Speaker 2: You know, obviously, the sort of handling of sensitive government information by high level government officials is something that has been kicking around on the public for a while, not just the Clinton investigation, but also Sandy Berger, who, you know, some people may remember, absconded with things from like in his socks at one point and then he paid a fine and that went away. General Petraeus, who gave classified information to the woman he was having a sexual relationship with so that she could write a book that played out in a misdemeanor form. He didn’t serve any actual prison time.
Speaker 2: And so, like, I think a lot of people are looking at the four corners of the statutes that are at issue. And that’s certainly one significant part of the analysis, obviously, which is like what do the statutes prohibit? But then there’s also this other body of kind of government practice things like, you know, was this intentional or inadvertent? Is it particularly bad material and material that he shouldn’t have sort of a personal interest in maintaining? And those are the things, I think that the government is just sort of necessarily going to be looking at in that we don’t have really much insight into at the moment. I mean, obviously, you know, we got this inventory of what was taken from from Mar a Lago, but it was a very, very high level and pretty vague as these things tend to be.
Mary Curtis: Now might be a good time to perhaps go through how many open cases there are against Trump. Can you briefly run through them?
Speaker 2: So, okay, so at the federal level, we now have this document issue that precipitated the Mar a Lago search. There is also what we know that the government is doing, the federal government is doing with respect to January 6th. And I say what we know, but that’s been, of course, a bit of a moving target in terms of whether and to what extent that they’ve really been pursuing Trump himself aggressively as opposed to of people around him or low level rioters. But we do know that there is an investigation concerning January six being conducted by the Justice Department and has picked up steam in the last few weeks. I think it’s been sort of maybe affected to some extent by the hearings that we had over the summer. But that’s sort of another sort of aspect of the federal investigation that has some elements to Trump.
Speaker 2: And then you have these other investigations which are at the local level of varying degrees. There’s there’s still as far as I know, there’s an active actual investigation being conducted by the West Chester County District Attorney’s Office into whether Trump misled local tax authorities about the value of a golf property there. There is been the New York Manhattan DA’s investigation of the Trump Organization and his finances. But but otherwise, there is reporting from earlier this year indicating that the newly elected Manhattan D.A. had decided not to charge Trump for the time being. So it looks like that that one is of lesser concern to Trump in the near term. And then we have the Fulton County, Georgia district attorney’s office investigating some combination of Trump’s call to the secretary of State, Brad Raffensperger, and the efforts to sort of create alternate or a, quote, unquote, fake slate of electors in the state.
Mary Curtis: Now we know that he did plead the Fifth Amendment on one of these cases recently. So how much does that matter?
Speaker 2: He pled the fifth in the civil investigation that’s being conducted by the New York attorney general’s office. They deposed Trump last week. He took the fifth sort of hundreds of times in terms of like the relevance to the criminal case by the DA’s office. Obviously, he’s invoked his fifth. So that’s not going to have any collateral negative effect on whatever remains of the criminal investigation by the DA’s office. However, as it relates to the New York attorney general civil investigation, it’s very useful to them because if they eventually sue the Trump organization and or Trump and other people in the Trump organization on some sort of theory of financial fraud, they can use Trump’s invocation of the Fifth Amendment in a civil case in order to get an adverse inference from the juror about what he would say if he had actually testified. So it could be quite significant to the attorney general in a civil case.
Mary Curtis: So how far along is the Department of Justice on these investigations and these other entities on on all of these cases and investigations?
Speaker 2: That’s an excellent question that we got to kind of got to take them one piece at a time. So on the documents issue, it’s a relatively new investigation. Right. The first report that precipitated all this scrutiny was back in January related to the National Archives receiving cheating the boxes. Then there was a grand jury investigation over time, and that’s sometime in the spring. And then, as we’ve seen from this reporting over the summer, really in parallel with the January 6th hearings, there was back and forth with the Justice Department and Trump’s lawyers. I would not assume that we’ll see anything in the way of charging decisions. If there ever any real charging decisions any time soon in that one.
Speaker 2: With respect to the January 6th investigation being conducted by the Justice Department, I mean, that one remains a bit of a mystery. Obviously, they have 800 plus cases related to the rioters. But in terms of the Justice Department’s focus beyond the rioters, you know, for the most part, it seems that the department moved a little slowly last year in terms of scrutinizing the conduct of people in the Trump White House and his campaign. But that at some point late last year, they decided to focus in in particular on this sort of alternate slates of electors issue. As for New York, as I mentioned, on the criminal side and the DA’s office for the time being, it’s effectively dormant as to Trump. That could change. But for the moment, he should be feeling pretty good about the status of that, only put that way for him or his lawyer.
Speaker 2: As for the civil investigations, the New York attorney general’s office is conducting. It does look like they’re getting closer to filing a sort of significant civil lawsuit against the Trump organization, alleging potential fraud on the part of the Trump Organization, potentially naming Trump and or his kids or other officers of the Trump organization as defendants themselves. So it’s last but not least.
Mary Curtis: Oh, there’s another one I forgot.
Speaker 2: Yeah. I was going to say that you have the Fulton County investigation, right, that’s going on in Georgia, where there’s been quite a bit of investigative activity very recently, including subpoenas to all of these elector subpoenas to Rudy Giuliani and to Lindsey Graham. There have been disputes that are getting resolved against these people as they’re trying to fend off these subpoenas. Those disputes are still very much ongoing, and that one, too, is like a bit of a wild card because it does seem like that investigation is picking up steam and potentially reaching a point where they going to make the charging decisions. But they’re to like every other criminal investigation that’s being really one that we hope is competently conducted. A lot of it is is outside of public view.
Mary Curtis: But it does sound like that one might be the fake electors, one that would be the most likely to go to trial, perhaps because they are, as you said, there’s a lot of action on it.
Speaker 2: Yes, I think that’s a fair read of the situation to say if among among all of these if you were kind of saying, well, which one do I think is the most likely to return potential charges against Trump himself? I would tend to agree. It’s probably that one. One of the reasons is this is a prosecutor who’s who’s operating outside of the bounds of kind of the standard Justice Department kind of protocols and bureaucracy.
Speaker 2: Right. So she has the flexibility to move a little bit more differently than everyone else. He’s also a political actor, is politically elected. So she may have different incentive than some of the other folks. But I don’t think that we should confuse that observation with the suggestion or conclusion that this is still a serious threat to Trump. And the reason why I say that is because obviously it’s not going to be good if for some reason the Fulton County somehow decides that they’re going to criminally charged Trump.
Speaker 2: However, it is not the same thing as the federal government criminally charging Trump, particularly if Trump decides that he wants to run for reelection. And I think, you know, if Trump is actually running for re-election, I think things are going to get very messy, both legally and politically. And if there’s ever an indictment, because there’s something, at least to me, that intuitively seems sort of off about a local prosecutor being able to put an active presidential candidate potentially on trial in the matter in the middle of a campaign season, much less like somehow convicting him and imprisoning him before the election or after the election.
Speaker 2: So I like I think the practicalities here are going to start mattering if these cases progress in this way, in a way that people haven’t really fully contemplated just yet. So I think when people are thinking, oh, Trump might even get indicted for this, and that if that comes to pass, depending on who does it, it may not achieve sort of the sort of outsized objectives or hopes that many people who dislike Trump have.
Mary Curtis: More after the break. I’m Mary Curtis, filling in for Mary Harris.
Mary Curtis: The Department of Justice has made an effort to clear the air since the FBI searched the former president’s home at Mar a Lago. But Ankush Khardori thinks federal prosecutors could do more to keep the public informed about this case, since it is so consequential. And since Trump and his allies have tried to spin the situation.
Speaker 2: I would have liked to have seen a little bit more disclosure, if not about what precipitated the search. And I can imagine that’s very, very sensitive then about sort of the status investigation and more to the point, really these other investigations and what, if anything, has been going on with them. Because I think. I don’t think it’s been healthy really for the country to be in this situation for the last year and a half where the Justice Department is doing something that people, to varying degrees and based on the reporting in real time, have been speculating about over the last year and a half. And for this to just be lingering and singing out in the air with everyone kind of doing their best to kind of peer into Merrick Garland mine and kind of understand what’s going on is I don’t think it’s healthy. I don’t think it’s necessary. I kind of don’t even think it’s really appropriate at this point for us to be operating in the dark here.
Mary Curtis: Now, Attorney General Garland has cited federal law, ethical obligations that prevent him from sharing too much about the search and about so much is going on. Does that explanation have merit?
Speaker 2: Yeah. It has some merit. It doesn’t. It doesn’t. None of those restrictions prohibit the sort of disclosure I’m talking about. The Justice Department has it has a media policy that says they generally do not comment on ongoing investigations. There is an explicit exception in that policy. If there is a basis or a reason to reassure the public that the Justice Department is investigating something. So just imagine, you know, when there’s a terrorist attack or there’s a potentially racially motivated hate crime. Right. It’s not unusual at all for the FBI or even the Justice Department itself to say we are looking into this for potential X, Y and Z reason that doesn’t obligate you to keep the public updated on every twist and turn right. But it it surprises the public that you are looking at something that has understandably attracted public attention.
Speaker 2: There are constraints on potential disclosures, on the particulars of what’s happening in an investigation and certain material that the government may have obtained. But again, those restrictions wouldn’t prevent necessarily sort of topical, sort of high level disclosures that I have in mind. I think the notion that the government is somehow fully constrained or prevented from commenting on an under on an ongoing investigation is is really overstated.
Mary Curtis: How so? I’ll Ailsa.
Speaker 2: Well, first of all, Garland himself demonstrated in his press conference last week that it’s not as true as many of the people who have been saying it would have you believe. Right. So like we heard this for days. You all Monday night, Tuesday. Wednesday. Oh, he’s not he can’t comment blah, blah, blah. Well yeah he can’t. And he, he demonstrated in the way in which he can and one reads it for which he can, which is to to help to ameliorate. Public confusion being caused by Trump himself.
Speaker 2: Current and former prosecutors don’t like talking about this, but let me just be very real about what the what prosecutors can and do do when they have a case of public significance. They if they charge someone, they’ll often use a speaking indictment, which includes a lot of detail that is unnecessary to include in the charging document detail that they include so that the public can have it. They hold press conferences when there are charges filed. Right. And they say a lot of things that are not in the indictment when those when those sorts of press conferences are held. Obviously, those are all post charging disclosures. But even in the pre charging stage, you know, not to be flip about it, but I don’t know who everyone thinks is the you know, the the senior government official with knowledge of the investigation was quoted in a lot of the news stories we have. Often these are coming these sorts of disclosures, not always, but in significant cases.
Speaker 2: The Justice Department will brief reporters of off the record or on background. I did it once when I was at the Justice Department. I conducted an on Background Briefing with a reporter who was interested in writing about a significant investigation I was working on because I wanted that person to get the story right and because it was important to the department. I went through protocols to do it. The Public Affairs Office was involved. A public affairs representative was on the call.
Speaker 2: So these things happen. That’s just the reality of it. The government has more tools available to it than the typical like kind of say nothing much that I think a lot of people believe this like really, really sort of a strict rule. I mean, I think Garland kind of suggested obviously that he was seriously constrained, but he did leave room. Open for further disclosures as the investigation proceeds.
Mary Curtis: Do you think that the Department of Justice under Biden wants to create that different tone, that they’re content to leave some of these questions unanswered, even if that means some people will think and interpret that to mean inaction? Do you think that’s just what their style is, that they want to do this intentionally?
Speaker 2: Yeah. I think that’s why I you know, I don’t think that their position is frivolous. I don’t mean to suggest that it is kind of the norm, you know, a presumption that little, if anything, will be said about an ongoing investigation. It it is sort of the norm. But like I said, it’s significant cases. And this is, you know, almost as significant as it gets given the nature of it, given the person who we’re talking about and the fact that he might be running for president, then I think it it warrants the Justice Department thinking a bit more outside of the box. And I was heartened to see them do that last week, to be honest.
Mary Curtis: I want to pitch it forward a bit. And we’ve talked a bit. You’ve talked a little bit about, you know, Trump not downplaying or distracting from all the exposure, using it to support his witch hunt narrative. So how does this play into a possible presidential run in 2024 for him politically and legally? And is there a universe in which this search and all of this renewed attention on Trump is good for him politically?
Speaker 2: It’s unclear, I think. I mean, certainly he acts as if he thinks it’s helpful to him to be in an adversarial posture to the Justice Department. Whether he actually believes that or not is anyone’s guess, because the other the other aspect of his publicizing these investigations that has been maybe sort of less less focused upon that we’ve talked about it here, is that it serves not just a political purpose, it serves a legal purpose, too, which is to complicate any efforts to pursue him, to potentially inhibit cooperating witnesses from coming forward, not in an obstruction type of way, but simply because, you know, if you’re someone who maybe is on the on the bubble in terms of like, oh, do I have some information that’s useful to federal authorities or that would might incriminate President Trump? You’re probably going think twice about that if you think he might be the president again in 2024 or taking office in 2025, and that he can pardon anyone and everyone who wants to.
Speaker 2: So politically, I think it’s unclear. People are posturing at a minimum, as if it’s helpful to him legally. The run is very useful to him. I mean, if you are under any sort of or in the vicinity of any sort of federal criminal investigation, and you have even like a fairly used to see yourself as having a fairly low probability of ever getting charged. And you had a realistic chance of being able to stop the investigation by replacing the attorney general in a couple of years. You need to think very seriously about exercising that option.
Speaker 2: Among among the other potential legal tools and defenses you might have available. That sounds pretty awful when I say it like that to many people, I’m sure. But it is the reality. I mean, he is potentially putting himself in a position to obtain the most potent legal tool imaginable to fend off, potentially shutdown, whatever any kind of criminal investigation that may be ongoing as of the end of 2024. You know, simply running that can exert its own effects, not just on the politics and the media coverage, but even on potential legal developments. Right. During the Mueller investigation, Trump was fond of, quote unquote, dangling pardons. Is going to be able to do that again if he runs.
Mary Curtis: It may sound awful to some, but it also sounds like a smart play.
Speaker 2: It’s the smart legal strategy to be seriously concerned. He has to, and I’m sure he is.
Mary Curtis: Ankush Khardori is a former federal prosecutor who specialized in financial fraud. He’s a contributing writer for New York Magazine’s Intelligencer and a contributing editor at Politico magazine. That’s the show. What next is produced by Madeline Ducharme Carmel Delshad, Elena Schwartz and Mary Wilson with help from Anna Rubanova, Jared Downing and Anna Phillips. We are led by Alicia montgomery and Joanne Levine and filling in this week for Mary Harris. I’m Mary C Curtis, columnist for Roll Call and host of It’s Equal Time podcast. I’ll catch you back in this feed tomorrow. Thanks for listening.