In This Episode
- The Justice Department on Friday unsealed a 49-page federal indictment against former president Donald Trump. He faces 37 felony counts, including 31 counts of violating the Espionage Act. We’re joined by Kate Shaw, professor of law at the Cardozo School of Law and co-host of Crooked’s Strict Scrutiny podcast, to dig into the charges and what comes next.
- And in headlines: a section of the I-95 highway in Philadelphia collapsed after a tanker truck caught fire, “Unabomber” Ted Kaczynski died by suicide in his North Carolina prison cell, and four indigenous children were found alive after 40 days of going missing in the Colombian Jungle.
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Tre’vell Anderson: It’s Monday, June 12th. I’m Tre’vell Anderson.
Juanita Tolliver: And I’m Juanita Tolliver and this is What A Day where we’re still processing the departure of Padma Lakshmi from Top Chef.
Tre’vell Anderson: This is my chance. I’ve been trying to host Top Chef [laughter] for the longest.
Juanita Tolliver: [laughing] Shoot your shot friend.
Tre’vell Anderson: Where do I audition? I’m ready for my moment.
Juanita Tolliver: Bless. And we know you gonna bring the season in. So period. [laughter] [music break]
Tre’vell Anderson: On today’s show, a section of the I-95 highway in Philadelphia collapsed on Sunday after a tanker truck caught fire. Plus, four Indigenous children were found alive after 40 days of going missing in the Colombian jungle.
Juanita Tolliver: But first, unless you’ve been living under a rock for the past three days or traveling to see Beyonce perform in Marseilles, France, then you, like us, have been completely gagged by the explosive federal indictment that featured photos of bathroom toilets and ballroom stages covered with boxes, as well as the 37 felony counts that Trump has been charged with. Count them.
Tre’vell Anderson: Listen. 37. That’s a number that you can’t just explain away as this like political vendetta against you. But–
Juanita Tolliver: Nope.
Tre’vell Anderson: –obviously, Trump’s going to try to do that anyway.
Juanita Tolliver: [laughing] Of course he is. And it’s not even a round number. So, you know, evidence is backing up every single one of these charges.
Tre’vell Anderson: Mm hmm.
Juanita Tolliver: According to the indictment, the charges include 31 counts of willful retention of national defense information, conspiracy to obstruct justice, withholding a document or a record, corruptly concealing a document or record, concealing a document in a federal investigation, scheme to conceal, and false statements and representations, is giving crimes on top of crimes. And every bit of evidence to back it up from interviews with lower level staffers and tape recordings of Trump showing biographers classified documents. So that makes two different cases now with clear and crisp audio of Trump crime-ing.
Tre’vell Anderson: Mmm.
Juanita Tolliver: Naturally, just days after the indictment, Trump took a trip to Georgia and North Carolina to spread lies about the DOJ investigation, and his base ate it up, especially when a CBS poll shows that 76% of GOP primary voters believe that this indictment was politically motivated. To dig into the indictment and the severity of the charges and what comes next on the long legal road for Trump. We talked to Kate Shaw, a professor of law at the Cardozo School of Law and co-host of Crooked’s Strict Scrutiny podcast. We started by asking Kate how the hell we got here in the first place. Take a listen to what she had to say:
Kate Shaw: Well, I mean, the story really starts, I think, as Donald Trump is leaving the administration after having unsuccessfully tried to, unlose the election. And ultimately on January 20th, the outgoing president leaves the White House heads to Mar-a-Lago and, as we now know, takes with him many, many boxes of classified documents to which he has no legal right. But some months into the Trump post-presidency, the National Archives starts to realize they are missing many, many documents that should be in the possession of the United States and its agencies. Um. And so over the course of a number of months, a kind of sequence of exchanges ensues in which National Archives officials are trying to get voluntary relinquishment of all of these papers from the Trump operation. And essentially, there is just such slow walking and outright resistance that the National Archives makes a referral to the Department of Justice and first through requests and then through a subpoena and then through an actual search warrant to get documents after learning the voluntary compliance has been, shall we say, incomplete, we end up in a position where the special counsel, Jack Smith, has the possession of many, many classified documents that were not turned over. And those documents are essentially the heart of this indictment that we saw at the end of last week.
Juanita Tolliver: And I feel like we should all be alarmed any time an outgoing president skips an inauguration, because this is what they could be doing like–
Kate Shaw: That’s right.
Juanita Tolliver: –real talk. [laughter] But we know there are 37 criminal counts in total. And I saw the Strict Scrutiny team unboxing the indictment in real time. So please break down these charges for us.
Kate Shaw: Sure. So of the 37, 31 of them are for willfully retaining what’s called national defense information, mostly classified. Some of it isn’t actually technically classified, but is all sensitive information that the statute called the Espionage Act, that’s the statute that these 31 charges are brought under, makes unlawful to retain by somebody who doesn’t have the legal right to do that. So that’s both the security clearances and a need to have this information. So those 31 charges are of this kind of willful retention of these materials. There’s a count of conspiracy to obstruct justice. And then there are several counts of withholding and concealing documents and making false statements to investigators. And, you know, these documents have to do with things like nuclear capability, the intelligence operations and military planning of both the United States and foreign partners. So, you know, folks who really work in national security and intelligence world have said in kind of the starkest possible terms that information like this, when it falls into the wrong hands, causes people to die. Like, the stakes could not be higher from the perspective of what is at stake. Now a lot people think the United States government over classifies tons of documents. That I think is absolutely true. But it’s also the case that some classified documents contain information that’s really important and that it is really important to keep secret. The indictment does tell the story of the efforts of the Justice Department to get these documents and the tactics deployed by Trump and some members of his team, but mostly Trump personally to evade his responsibility to hand these documents over, including really explicitly saying things while showing documents to third parties like the ghostwriters of his former chief of staff’s memoir. Um and–
Juanita Tolliver: Which was just wild.
Kate Shaw: It was wild. When we were unboxing the indictment last week. Just that conversation is reproduced verbatim in the indictment in which he basically says to these writers, I have this document and I could have declassified, he says this to a staff member, I could have declassified it, but I didn’t. It’s still secret. Isn’t that interesting? And so you have kind of almost all the–
Tre’vell Anderson: Wow.
–elements of this charge admitted to in that exchange. I know I have these documents. I know I shouldn’t. I know they’re classified. I know I didn’t declassify the documents because some theory that’s been floated by Trump’s lawyers, although never actually in court, is that somehow he automatically had a standing order that every document and, you know, that left the White House was automatically declassified or that he was somehow like with his mind declassifying documents. And–
Tre’vell Anderson: Wow.
Kate Shaw: I don’t think those would be winning arguments anyway. But I really think it’s very hard to make that argument with a straight face after hearing his admission that he knew the documents hadn’t been declassified in this exchange.
Tre’vell Anderson: Yeah. Now Trump seems unfazed. Undeterred by the news of the indictment, he even took a trip down to Georgia and North Carolina Republican conventions. I wonder, what’s your legal take on how Trump has responded in the days since he learned of his indictment and, you know, told the rest of the world on Truth Social about it?
Kate Shaw: Well, you know, the initial polling suggests that no one in his base is troubled by this indictment–
Juanita Tolliver: That part.
Kate Shaw: –but actually, thinks that his numbers actually look like they’re going up in the wake of it. And so I expect him to talk maybe not of like nothing else, but this is going to be central to his rhetoric on the campaign trail. He’s going to talk about it a lot. And I don’t know how that will play politically, but my strong sense is it’s not going to play well legally because whatever he thinks he’s going to say, you know, again, speaking in a political register, might yield benefits, might not. But if he goes out and says, yes, I had these documents and I don’t know, I had the right to because I was the president or whatever else he says, the yes I had these documents is a very important admission that I think is, if not fatal to any defense his lawyers might want to offer, really a problem [laugh] for mounting a successful defense. So I do think that there’s going to be this tension between his political incentives, which are to talk about this a lot and his lawyer’s likely advice and the most you know cautious prudential legal course of action, which is to try to stay quiet. But, of course, we know Trump doesn’t listen to his lawyers about anything. And so I presume um, you know, he’s not it’s not even totally clear who’s going to represent him in this Florida–
Juanita Tolliver: Oh, yeah, his attorney’s–
Kate Shaw: –suit.
Juanita Tolliver: –quit!
Kate Shaw: Yeah.
Juanita Tolliver: They tweeted that they quit. [laugh]
Tre’vell Anderson: Mm hmm.
Kate Shaw: So he’s looking. [laughter]
Juanita Tolliver: Trump has made it absolutely clear that a conviction would not stop him from continuing on with his presidential bid. Like we talked about in the polling, his most ardent supporters, those GOP voters are fully turned up on the idea that this is only politically motivated. But what possible impact might a conviction and sentencing have on this presidential campaign if this case moves through the courts at warp speed?
Kate Shaw: Yeah, so that’s important. That last thing you said, it would have to move through at warp speed. I mean, ordinary federal litigation timing is like glacial. You know, it’s slow. And so we could be talking about a couple of years, I think, in the ordinary course. Now, a couple of things. One, this Florida court is known as a court that moves things along relatively expeditiously. So I think that from the Justice Department’s perspective is helpful. And so I think a lot will turn on what this judge is willing to do. Like, does the judge agree that it’s actually important that this all kind of run its course so that voters have full information when they’re making their choices? Or does the judge essentially allow Trump to kind of drag out proceedings, as I think everybody anticipates that he will? I mean, the identity of this judge does not give a huge amount of confidence if you’re the Justice Department, because this judge, Judge Cannon, in a previous stage of those early proceedings we were talking about at the outset, where the Justice Department is trying to get these documents ends up ultimately asking for and getting and executing a search warrant on Mar-a-Lago. After that, this judge basically sided with Trump in his efforts to restrict DOJ’s ability to access these documents. She appointed a special master. It was a very, very sort of pro-Trump ruling in the district court that was reversed in pretty sharp terms by the appeals court. But at least, you know, in terms of the one piece of evidence we have about her likely disposition vis a vis Trump in this suit, this judge seems like she’s going to be pretty sympathetic, although, you know, we don’t totally know what she’s going to do. But if she decides to sort of help move things along quickly, you know, these are charges that carry, at least in theory, very lengthy prison sentences. So if he were convicted and sentenced, we would be you know yet again in a new part of the uncharted water right of the entire sort of Trump era. Um. There’s no constitutional prohibition on a convicted felon running for or serving as president, but there certainly are logistical challenges that it could present. And I mean–
Juanita Tolliver: Come on.
Kate Shaw: If he were somehow actually sentenced to a period of incarceration and maintained his candidacy and I mean I can’t believe I’m going to finish this sentence this way, but one I–
Juanita Tolliver: Yikes.
Kate Shaw: I don’t. [sigh] We’re talking possibilities here. One is a district court could basically say, well, we have to suspend this sentence so he can serve out his term as president.
Juanita Tolliver: No, no, no!
Kate Shaw: I’m sorry. It could happen. It could happen.
Tre’vell Anderson: Wow.
Juanita Tolliver: No! [laugh]
Kate Shaw: And then, of course, I presume he would if, you know, he gets inaugurated, I presume he would pardon himself and then the whole thing goes away. So that at least is a possibility. It could be that if he was incarcerated and a district judge didn’t do this, kind of suspending the sentence, maybe it’s possible that there’s a provision in the Constitution, the 25th Amendment, that basically allows a president to be stripped of their power if they cannot execute the duties of the office. But that requires the cooperation of the vice president and the cabinet. It would have to be Trump’s own people agreeing that he needs–
Tre’vell Anderson: Huh yi yi.
Kate Shaw: –to be ousted from office. So it’s an enormous constitutional mess if that comes to pass. And again, that’s only, I think, something we would have to grapple with if things moved much, much faster than they would in their ordinary course. But, I mean, we could be looking at complete chaos. And if, remember, this is one charge. We already have eight Manhattan criminal trials scheduled for March of 2024, and we very likely will see charges out of Fulton County, Georgia, by the end of the summer. And Jack Smith, the special counsel, is also investigating and could well charge Trump with his participation in January 6th in D.C.. So, you know, there’s just so much legal jeopardy swirling around the ex-president, uh Donald Trump, and yet he does not seem deterred in his efforts to seek the presidency, if anything. I think he seems to be doubling down because at least as to the federal charges, being in a position in which he could try to self-pardon all of a sudden seems really, really important now we should say there’s no legal precedent on the possibility. Can a president even self-pardon? We don’t know. But obviously that wouldn’t stop him from trying if he had the chance.
Juanita Tolliver: That was our conversation with Kate Shaw, professor of law at the Cardozo School of Law and co-host of Crooked’s Strict Scrutiny podcast. When I tell you we went to some dark possible outcomes here, I think we all need to brace ourselves and we all need to be 1,000% motivated to turn out in 2024.
Tre’vell Anderson: Absolutely.
Juanita Tolliver: Of course, we’ll keep following all of Trump’s crimes and court cases, including his arraignment at a federal courthouse in Miami tomorrow in connection to this indictment. But that’s the latest for now. We’ll be back after some ads. [music break].
Tre’vell Anderson: Now let’s wrap up with some headlines.
Tre’vell Anderson: An elevated section of the I-95 Highway in Philadelphia collapsed on Sunday. Indefinitely shutting down a heavily traveled segment of the East Coast’s main North-South highway. According to authorities, a tanker truck carrying petroleum caught on fire while it was traveling underneath I-95 early Sunday morning, causing the section above it to cave in. Thankfully, no one was injured during the sudden collapse and the fire was easily contained. But the northbound lanes of I-95 in the section were pretty much dust and the southbound lanes were heavily damaged. Local transportation officials urged Philly drivers on Sunday to avoid the northeastern part of the city in wake of the disaster and warned them of extensive delays and street closures while they work to clean up the mess. But they gave no timeline for when the road would reopen. U.S. Transportation Secretary Pete Buttigieg said his department is working with city and state leaders to support them while they rebuild.
Juanita Tolliver: Ted Kaczynski, more widely known as the Unabomber, died by suicide over the weekend in his North Carolina prison cell. Kaczynski was the criminal mastermind behind a 17 year bombing campaign that killed three people and injured 23 others in various parts of the country between 1978 and 1996. The FBI manhunt defined Kaczynski, whose bombing sprees changed the way Americans mail packages and boarded airplanes, was one of the longest and costliest to date. After his arrest in 1996, he pleaded guilty and was sent to a maximum security prison in Colorado, where he was given four life sentences plus 30 years for his campaign of terror. In 2021, the Unabomber was sent to the North Carolina Federal Medical Center, a facility that treats prisoners suffering from serious health problems and where Kaczynski was dealing with his late stage cancer diagnosis. Kaczynski’s death comes after the Federal Bureau of Prisons has faced heavier criticism and examination in recent years over the suicide death of convicted pedophile Jeffrey Epstein in 2019.
Tre’vell Anderson: Several WNBA players are calling for better protections around player safety after Brittney Griner was harassed at a Dallas airport on Saturday morning. Griner was traveling with her Phoenix Mercury teammates when she was yelled at and filmed by far right social media figure Alex Stein, who later posted a clip of the encounter on Twitter. Phoenix Mercury forward Brianna Turner also took to Twitter to recount the incident, saying that the team nervously huddled in a corner together in the airport, unsure of how to navigate the situation safely. Saturday’s incident brought up ongoing frustrations within the WNBA to obtain charter flights for better safety and protection of players. WNBA Commissioner Cathy Engelbert said earlier this year that it’s an issue she’s aware of and working on, but it’s just too costly of a move for the league without sponsorships. Well lets find some sponsorships. Somebody got to be out there.
Juanita Tolliver: C’mon!
Tre’vell Anderson: To be able to sponsor this. Come on now.
Juanita Tolliver: Drop the coins.
Tre’vell Anderson: Right. In a statement responding to the harassment of Brittney Griner, the WNBA Players Association said, quote, “Everyone who was paying attention knew this would happen. We could have and should have been more proactive. We implore the league and the teams to not wait another day to change the rule regarding travel.”
Juanita Tolliver: Not a single lie detected, I promise. Four Indigenous children who went missing after a small plane crash in the Amazon were found alive over the weekend after surviving for 40 days on their own in the Colombian jungle. Just soak that in for a second, because that’s wild. The kids who are between the ages of 11 months and 13 years old were traveling with their mother by plane on May 1st when one of the engines failed mid-flight. The plane went down, killing the three adults on board, including their mother. And the kids were left stranded in the jungle where snakes, mosquitoes and other wild animals roam free. The key to their survival was a stash of cassava flour they found on board the plane and their intimate knowledge of the rainforest fruits and seeds. The children, who are members of the Amazon’s Indigenous Huitoto tribe, knew which foods were safe to eat in the wild and were able to keep themselves from starving to death. A group of Colombian soldiers discovered them in the jungle on Friday, and the kids were reunited with their family shortly after. Colombian government officials met with the children in the country’s capital of Bogota, where they’re expected to stay under hospital care for at least two weeks while they’re rehydrated and fed. And their rescue brings a thankfully happy end to a weeks long search led by community members and authorities. Huge, huge outcome.
Tre’vell Anderson: Absolutely. Love that they’re safe. Love that they somehow survived with their knowledge. This is the Indigeneity, you know, working to their favor, like knowing the seeds and the fruits.
Juanita Tolliver: I feel like we have a new word. But I’m here for it.
Tre’vell Anderson: Is it? No, that’s real. It’s a real word. Indigeneity.
Juanita Tolliver: Oh.
Tre’vell Anderson: I promise.
Juanita Tolliver: Oh, my bad. Let me step it up.
Tre’vell Anderson: I think. [laughing] But also, I just want to say the fact that they survived 40 days, it’s giving Yellow Jackets for anyone who’s watching. Minus the cannibalism, obviously.
Juanita Tolliver: Yikes.
Tre’vell Anderson: Yeah.
Juanita Tolliver: I don’t know nothing about no Yellow Jackets, but I know I would not have made it 40 days, period. This city girl? No.
Tre’vell Anderson: And in some good historic news you might have missed last week, New York Governor Kathy Hochul appointed 15 new judges to the state’s courts, one of them being the first openly trans man to sit on a judicial bench in American history. Seth Marin will soon preside over New York’s state court of claims, and he has an impressive resume under his belt going into his new role. Marin currently works at Columbia University as the school’s director of Affirmative Action and Equal Opportunity Training, and he’s previously served as the vice president for civil rights at the Anti-Defamation League, a legal group dedicated to protecting the rights of marginalized communities nationwide. Marin goes on to join the ranks of trans trailblazers like Victoria Kolakowski and Andi Mudryk of California. Kolakowski became the country’s first ever openly transgender judge in 2010, when she was elected to Alameda County’s Superior Court and Mudryk, an out transgender woman, was appointed to Sacramento County’s Superior Court just last year. Love this. Keep it coming, people.
Juanita Tolliver: Number one, another pride surprise that brings a lot of joy.
Tre’vell Anderson: Absolutely.
Juanita Tolliver: Number two, check these credentials. Columbia University, vice president of civil rights at Anti-Defamation League, like Seth Marin clearly is qualified, maybe even overqualified, because let’s be real. If you’re coming from any type of marginalized community, you got to be that great.
Tre’vell Anderson: That’s what they tell us, right? Work ten times harder, etc., etc., etc.
Juanita Tolliver: Come on.
Tre’vell Anderson: Shout out to Mr. Marin. Okay. And those are the headlines. [music break] That is all for today. If you like the show, make sure you subscribe, leave a review. Keep appointing and electing trans folks into office and tell your friends to listen.
Juanita Tolliver: And if you’re into reading and not just survival tips like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Juanita Tolliver.
Tre’vell Anderson: I’m Tre’vell Anderson.
[spoken together] And see you in court Trump.
Juanita Tolliver: Oh my God, I can’t wait. I don’t even know if it’s going to be televised. But, you know, I will be following this very closely.
Tre’vell Anderson: Mm hmm, listening to watching whatever we can get. Okay, out of that court house.
Juanita Tolliver: And you know, what else we going to get? Tongue tied Republicans who can’t get they lies straight because there ain’t no way they can talk–
Tre’vell Anderson: Yeah.
Juanita Tolliver: –their way out of this. There’s no way.
Tre’vell Anderson: Well you know, they’re going to try.
Juanita Tolliver: Hmm. [music break] What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itxy Quintanilla. Raven Yamamoto and Natalie Bettendorf are our associate producers and our senior producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka.