This transcript was automatically generated and might contain errors.

[0:00] Alan Seales: Welcome to episode 14, Mar-a-Lago Mess. Trump's threat to national security.

[0:12] Alan Seales: On August 8th, 2022, the FBI seized over 300 classified FBI and CIA documents held by Trump at Mar-a-Lago, including many top secret documents compromising national security. We are now hearing that Trump is withholding even more documents. In February 2017, Reality Winner was charged with leaking one government document, proving Russian interference in the 2016 election. Reality received the longest prison sentence ever imposed for the unauthorized release of government information: five years and three months. To put it in perspective, Reality Winner was prosecuted by Trump under the Espionage Act and sentenced to five years and three months for the mishandling of one classified document. Trump is now being investigated for the same crime, the irony of which is not lost on us.

[2:12] Marcy Wheeler: The first set, uh it was 15 boxes that he had sitting in Mar-a-Lago for a year. They went back to the archives in January. And in those 15 boxes, there were close to 200 documents that were classified. And it's a range of classification levels. And then in an attempt to get what he had back in May, DOJ subpoenaed uh everything in his possession, not just at Mar-a-Lago, that had classification marks on it. And he gave back maybe another 50 documents, and again, a range of classification levels. And then DOJ knew that he hadn't given everything back, and they got a video showing that basically they showed that he had removed documents before his own lawyer went in and reviewed what was in there, and in the process hid documents from him.

His storage closet. They took the leather bound box from his office and then they took a bunch of papers from his desk drawer and found another 103 classified documents. So that's the scope of what he had at Mar-a-Lago. One of the most interesting things about it though is that he had that leather bound box in his office. And that had, as they described, stuff that's so classified, the FBI agents had to get extra clearance to be able to deal with the documents. And this is the same office where he's entertaining, you know, like Bolsonaro or Farage or any of his crazy MAGA followers. And so, and you know, and going back, there were some claims that he was showing off his love letters from Kim Jong-un.

And so, you know, that's one of the risks is were these super classified documents in his leather bound box in his office, along with a Time magazine cover, um, were they things that he was showing off to brag to people with, or were they something else? And um that's one of the things DOJ would be trying to learn if they weren't at this time fighting Trump to get the rest of the documents and to be able to do the investigation with the unclassified part of the documents.

[4:47] Marcy Wheeler: This search is significant because under the Presidential Records Act, Trump was obligated to return all of these documents to the National Archives. All told the government has gotten 42 boxes of documents that should have been left with the archives back from Trump thus far. So those documents, none of those documents should have walked out the door, but then there are the classified documents. So he just stuck them in his beach resort, um, which has been targeted by foreign spies from the start, and which they're not secure. If you remember from episode five with Reality's defense lawyer Titus Nichols, SCIF is short for sensitive compartmented information facility. It is a U.S. Department of Defense term for a secure room.

It is a secure room or data center that guards against electronic surveillance and suppresses data leakage of sensitive security and military information. And from what we know, Trump had documents in his office that should only be viewed in a SCIF facility.

[5:59] Joe Conason: Those documents which have the highest classification are not to be read by anyone who is not cleared to read them, and they're also not to be read except in under special uh protected circumstances, which is a SCIF, which is a secure compartmented information facility. There used to be one at Mar-a-Lago, although he apparently didn't use it very much, but there isn't one anymore since he left the White House. Uh, they're very expensive to build and to maintain. It violates the law for anybody to be looking at these documents, which were shown in the photograph strewn around his office, except under those special circumstances. He said numerous times on his uh Truth Social Twitter imitation that he declassified everything and he has the power to declassify everything.

So when something is declassified, if it said classified on it or secret or top secret, after it's declassified, though those markings are struck out. They're actually crossed out. The things that were in Trump's office, none of them had struck out. You can see very clearly that they are all still marked with a very high levels of classification. Now, his people have also claimed, well, it doesn't matter because he declassified them, but the truth is there's actually a process to declassify any document. It takes time. It has to be approved by the agency, what's sometimes called the owning agency of the document. They there's a process. And the reason for that is a logical reason. That's so everybody knows what's classified and what isn't. If the president could uh just willy-nilly declassify anything, how would anybody know what was or what was not classified?

And the answer is you couldn't. So those claims are specious and false, like so many others that he's made. There's no evidence to support that he declassified anything. We don't know a lot about the contents of them, except that the government has decided that this was national security information that needed to be protected in the most rigorous ways, and that there's a lot of it. There's a lot of classified, there's a lot of uh secret, and there's a lot of top secret SCI uh information too, papers that were in his house, some of them in a sort of hotel safe there, some of them apparently just in his office and in his desk, uh, which is unbelievable. And some of them, you know, in a room in the basement that had a padlock on it.

Mar-a-Lago has been crawling with spies for years. I mean, they recognize that this was a very careless president who would talk on unsecured phones, who would sit at the, you know, dinner table in Mar-a-Lago with classified papers. It's precisely this carelessness that puts our national security at risk.

[8:50] Marcy Wheeler: So that's one problem. And it could be not even of his own doing, but that, you know, the woman who pretended to be a French countess who was targeting him, or the Chinese woman who kind of snuck into Mar-a-Lago or anyone else that we don't know about, any of those people, from January until August, those people knew Trump had been storing stuff in his basement. And so sophisticated spies would say, hey, let's go see whether we whether he got it all. Let's go see whether it's still there. So it could be that these documents would be compromised by somebody else, or it could be that Trump would misuse these. And one of the hypotheses for keeping this is this is leverage over people. We only have descriptions of one document or one set of documents that uh were seized.

And part of that document is some kind of clemency for Roger Stone. Everyone sort of assumes it's the existing pardon we know about for Roger Stone. My guess is it's not. My guess is it's something that Trump basically gave a pocket pardon to Stone for. And I wouldn't rule out that some of Stone's associates were involved in the GRU hack and leak of Macron in 2017. So Jack Basobiek is the most famous person. He was the first person, he was the second person to leak at it. But it was a bunch of white supremacists who were involved with that, all very close to Roger Stone. Roger Stone was involved in a meeting where supposedly there was advanced discussion of this. Let's just hypothesize for the moment if Roger Stone was involved in a hack and leak with Russia, and Trump needed to cover that up.

You pardon him, and then he can't be charged. And then there's not this embarrassing fact that your rat fucker has cooperated with Russia to hack and leak Macron. So that's the one document that we know exists. I mean, we don't know for sure that it pertains to Macron, but one of those documents is classified secret. And that document was in Trump's desk drawer. Why is any pardon for Roger Stone in Trump's desk drawer? Uh especially since we know that Roger Stone visited Trump right before he got his pardon or right around the time he got his pardon. Um, and that was in the lead up to January 6th. Like there, there's this discussion, like all these people who were involved in January 6 were kind of trading pardons.

Paul Gossar was saying, well, if you help us with a coup, you'll get a pardon. Um, pardon here, pardon there, the build wall people were going to get pardons for helping Trump with the coup. And then in Stone's case, in Bernie Carrick's case, in Mike Flynn's case, you've got three centrally involved players in January 6th who had already been pardoned by the time of January 6th. So you know, that's all background to say for some reason Trump had whatever clemency that is for Roger Stone in his desk drawer with a document, either the pardon itself or the document it was attached to, with a document that was classified secret. And that's that's just one example of a document that we know he had that we could see him using for leverage over other people, and that was not secure at all. It was right there in his desk drawer.

[12:00] Joe Conason: It's quite unimaginable that any former U.S. president would be so careless with documents that pertain to national security. But here we are. As with so many things that pertain to Trump, it's mind blowing. And yet he's done them. And the question is that is before the attorney general is what do you do about this? These are serious crimes. And some of them you're familiar with the Espionage Act. I know there are people who think you know it's too draconian and it punishes free speech and can be used against the press. And some of that is true. But the country does have secrets that need to be protected, particularly when we're facing uh countries like Russia, like China, like Iran and North Korea.

We have to have some capacity to assess them. And that requires a degree of secrecy, uh, especially when it comes to human intelligence. And apparently some of the secrets that have been exposed in this scandal are secrets involving our people who are friendly to us, people who work for us overseas. Uh that can't be exposed. And because it you wind up with people getting killed, and he just has violated them without, you know, with absolute recklessness. Some of the documents that Trump had in his possession were so top secret, pertaining to human intelligence sources, that the FBI had to get special clearance to access the documents.

[13:28] Marcy Wheeler: There are two classifications for human sources. One is a report based on human sources. So, in other words, like a CIA asset overseas uh was used to collect it. Uh, another one is human sources operation. So, in other words, like the means by which the CIA recruits human sources is one example. And there were some of both kinds in what was taken. Imagine that Trump wanted to um get two billion dollars given to his son-in-law, right? From Mohammed bin Salman. Well, trade something, trade information about Iran, which is probably one of the things in there, like the Iranian nuclear program, trade information about collection of Saudi Arabia by the CIA. And then you get your two billion dollars. That's one of the things that you could see him doing is basically monetizing these documents or using it to build and retain uh relationships with his authoritarian buddies overseas.

[14:39] Joe Conason: So if Donald Trump is indicted for the offenses that appear to have occurred in his taking of these documents out of the White House into an unsecure location, so that violates the Espionage Act. And it doesn't the one of the quirks of this is that it doesn't really matter what their classification was.

[14:58] Marcy Wheeler: This is called national defense information. And that's what the Espionage Act refers to. It doesn't talk about classified documents, because actually, when it was written, the classification system barely existed and not the same as it is now. So that's not what it refers to. It's talking about national defense information. And he has violated that now. He's also being investigated for other aspects of that, which is did he damage, destroy, lose, conceal these documents, documents that relate to national defense information, and also for potential violations of obstruction statutes, because he clearly was hiding these documents.

[15:42] Marcy Wheeler: The crimes listed on the warrant were 18 USC 793E. And so that's unlawful retention of classified information, which means, you know, basically he was hoarding classified documents, DOJ said, "Hey, give them back," and he said, "No, I won't do it." So that's what was on the table for the search, as well as obstruction tied with his refusing to give them back and hiding them from his lawyer, as well as basically removing documents from the government. So those were the three crimes that were on the table on August 8th with that warrant. It's pretty clear that he took a bunch of the Russian investigation documents with him. And so from the day he left the White House, that was no longer authorized.

And if, for example, he took, and this is something John Solomon said they were talking about, taking the FISA application against Carter Page. If he took an unredacted version of that, that would be a separate violation of FISA because of the way they were protecting that. But as soon as Trump gives it to somebody else, it's an added charge on the statute. And if his own negligence led to, say, a Chinese spy to wander in and help themselves, that would be a separate charge as well. So basically what they would do is start larding on the 793 charges based on every kind of compromise of the document. If they were to learn, for example, that he gave some of these to Mohammed bin Salman, then you'd see 794, a different part of the espionage act for giving it to a foreign government knowing that it was going to hurt the United States. So those are the things that DOJ might be considering based on what they've learned about the documents.

[17:29] Marcy Wheeler: Trump and those closest to him claimed that the documents in his possession had been declassified, but there's no proof that official declassification actually occurred. So John Solomon and Cash Patel have their own little story about the Russia investigation documents. And they claim that Mark Meadows tried to declassify everything literally like hours before leaving the White House, if not minutes. And that, you know, for them, they're gonna say, "Well, we believe they were declassified because Mark Meadows told us they were declassified." They may be trying to kind of establish their own defense. But what's interesting about that is John Solomon told this story, claiming that he had gone to the archives and FOIA'd Mark Meadows' document, declassifying these documents.

But the version he published has a date of September 2021, like the creation date of September 2021 and not June of 2022 when he claims he got the documents. So I sort of wonder whether September of 2021 somebody copied all those Russia investigation documents. I've seen at least one unclassified document from that set online. So I suspect that those are circulating. And so those I would be frankly surprised if they weren't copied. The question is whether people have madly destroyed all of them soon enough to avoid the FBI discovering that. But that's an example where I think it's probably likely that classified documents were removed from the White House and copied. And Trump and Cash Patel and Mark Meadows are all gonna say, "Well, we thought it was declassified," but the paper trail doesn't even say that. The paper trail says that in the last hours that Trump was president, Mark Meadows ordered the attorney general to declassify these things, but there's no sense that declassification happened.

[19:23] Marcy Wheeler: I mean, and it is true that presidents don't have to go through a real formalized process before they declassify things. Normally, I mean, like, that's how Trump avoided going to prison when he shared Israeli intelligence with the Russians. That's how Trump avoided going to prison when he released a satellite image of Iran on Twitter. That's how Trump avoided going to prison when he shared with Tucker Carlson information about Josh Shulte the morning before the FBI searched him. Those are all classified. He's not prosecuted because of the president. And if you leak something as president, it's as if you declassified it. However, in this case, it's different because this happened after Trump was in office and his withholding of documents violated a different law, the Presidential Records Act.

Like normally, when they charge somebody with the Espionage Act, right? You were not an original classification authority, so you couldn't like the president just decide to walk home with it. And when they prosecute people with the espionage act, they always say, "Here's the non-disclosure order they signed." And by walking out with these documents, they knew that they had violated the law. In Trump's case, they're going to say, "You are uniquely bound by the Presidential Records Act. There's a special law written just for you that says you can't bring 40 boxes of documents home." And that meant that anything you had, whether it was classified or not, you had unauthorized possession of, because under the Presidential Records Act, you had to leave it at home.

And then we kept asking you for it, and you kept not giving it back. And so you get to all of the elements of the prosecution a different way with Trump than you would with other people, but you still get there because of the Presidential Records Act. You get there because there's a special law written just for people like Donald Trump and prevent them from walking home with their documents that meant everything Trump took was unauthorized, including the classified documents. And then, particularly given that Biden chose not to continue briefing him, there's no waiver to waive need-to-know rules so that Trump can have access to classified information.

[21:39] Marcy Wheeler: Marcy explains the different types of classified documents that Trump would have had in his possession as president. So what they do is they put classified documents, you know, with the like secret or top secret mark on the header, they put it inside a folder, and the folder is color-coded based on what's inside it. So it's orange, it's a top secret. And they use the folder to make sure that as they're ferrying it into the president, no one gets to see it. Well, there are 88 of those kinds of folders that were seized from Mar-a-Lago. And no one knows whether the contents of those folders were among the 300 documents discovered, or whether those empty folders are maybe something he brought with him to Bedminster when he was going up to meet the Saudis at the golf course, or whether, you know, he just kept the empty folders when he was in the White House.

No one knows which of those three scenarios is true. And so each of those 88 folders could be another document that already has been compromised or already has been shared with somebody else, or already is, you know, in Saudi Arabia or something like that. I think in the Trump case, one of the interesting things about it is the Washington Post said, "We know that there's nuclear-related documents in the batch, or we expect there to be." And that may have only been based off of information from the subpoena, because the subpoena specifically asked for former Atomic Energy Act documents. I forget the former restricted materials. So it's another one of the classification marks. And so as soon as you saw that in the subpoena, you would know that they were looking for potentially nuclear documents.

The Washington Post got confirmation that they found nuclear documents. And Trump has done this in the past. Smart defendants do this all the time, is leak stuff and then accuse the other side of leaking. Paul Manafort did that as well. And so I think that the press is being played. Judge Cannon, who is presiding over Trump's case, used that leak about the content of the documents to justify having to protect Trump. Judges can have great influence over the direction of an investigation.

[23:52] Marcy Wheeler: So the 11th Circuit ruled that originally Judge Cannon said, "You can't investigate using these classified documents anymore." The 11th Circuit said, "No, you can't say that, Judge Cannon." So up until that point, though, she was claiming that she could actually overrule the executive branch's decisions on classification. So in other words, she was going to sit there in her courtroom with Donald Trump, and Donald Trump was going to say, "Well, I declassified, you know, thought about it, and so it's all declassified." And she wouldn't even need to have said he was right. She could simply say, "Well, you know, it sounds reasonable. I disagree. I think that, you know, that Biden is the one who gets to decide these things now, not you, but it still seems reasonable."

And had she done that, and if she finds a way to do something similar going forward, then I think that it would make it a lot harder to charge him under the Espionage Act. In the same way that remember when Bill Barr kind of declined prosecution of Trump for the obstruction acts that Mueller found, this is something people don't really understand.

[25:00] Joe Conason: In response to the judge's request, this is a Trump judge, you know, should I appoint a special master to look at these documents, which is a ridiculous thing. And can't believe she's even entertaining it. But she is, and she's, you know, a very right-wing, apparently kooky judge. But the government's response to that was to show that he had no right to have these documents. None of them are covered by executive privilege. There's no need for a special master if you were going to appoint a master to look at the documents, that that person would have to have the highest possible security clearances because they can't look at the documents otherwise. So the whole thing is kind of ridiculous. But the government also went out of its way to show that the Trump people, probably including the president himself, former president himself, had concealed the documents, had resisted the subpoenas, had refused to give documents back, and had moved the documents.

They have videotapes showing that the documents were moved from the one storage facility with the little padlock on it, you know, apparently to his office or somewhere. They were taking them away from where the government knew they were and putting them somewhere else, which again is evidence of obstruction and concealment.

[26:14] Joe Conason: It's impossible for us not to see the parallels between Trump's case and Reality's case. And we also cannot ignore how individual privilege can impact how a defendant is prosecuted by the law in our country. Well, certainly the reason for the imbalance that I mentioned is the contrast between the power of, you know, a young military officer with no connections and versus a president or a general or, you know, any of the other kinds of people who've done these acts and not gotten in nearly as much trouble as she did. So, yes, that imbalance exists, and it means that certainly Trump has various means to try to escape justice here. And he's using them. I mean, I don't think they're doing a very good job.

One of the reasons is he can't get a good lawyer. You know, his lawyers are idiots, and they're doing a terrible job in defending him. He seems to have sort of decompensated and gotten hysterical. And he has people going out like Lindsey Graham did the other day, making threats of violence, which, you know, a senator to say we're gonna have riots if you prosecute someone for crimes. I hope with all my heart that the Justice Department will ignore that and that justice will be done because let though the heavens fall, as they say. I mean, it's that's what we're supposed to have. We're supposed to have the rule of law. And if we don't, then we don't have our republic anymore. And that would be tragic for us and for the world.

[27:52] Marcy Wheeler: In our next episode, we speak with journalist Michael Lee and Reality's mother, Billy Winner Davis, about the implications Trump mishandling and withholding of top secret government documents might have on Reality and her hopes for a presidential pardon. You can support Reality by signing her petition for clemency at StandwithReality.org. Please join us for the next episode of This Is Reality. And make sure to check out all the podcasts on the Broadway Podcast Network. We're incredibly grateful to our special guests, Marcy Wheeler and Joe Conason. Reality's interrogation by the FBI was captured in the critically acclaimed Broadway play, Is This a Room, conceived and directed by Tina Satter. This podcast is created, written, and produced by Dori Berinstein, Sally Horchow, Rebecca Aparicio, and the Broadway Podcast Network.

Sound engineers are Alan Seales and Kimberly Garris. Podcast editor is Alan Seales. Please join us for our next episode of This Is Reality by following and finding out more information on BPN.fm/ThisIsReality. And finally, special thanks to Bea Westby and the rest of the team at the Broadway Podcast Network.