Background reading:

• “Indictments and Incitements: Threats of Violence Surround Trump Arrest,” Jackson Katz, Ms. magazine, Mar. 22, 2023.
• LISTEN: “The Trump Indictments: Unpacking the E. Jean Carroll Litigation (with Moira Donegan)”
• LISTEN: “How Trump Made Political Violence Mainstream (with Rep. Leslie Herod)”

Transcript:

0:01 Michele Goodwin: 

Welcome to 15 Minutes of Feminism, part of our On-The-Issues platform at Ms. Magazine and Ms. Studios. As you know, we report, rebel, and we tell it just like it is, and we count our minutes in our own feminist terms. In this episode we are continuing our series that follows the litigation and indictment woes of the former President, Donald Trump. 

Very recently the former President has been indicted after a Department of Justice investigation with regard to the materials that were classified, which he has held onto and had held onto and in fact, where documents were found in Mar-a-Lago, including that photo that many of you have seen all around the world with documents in a bathroom at Mar-a-Lago, in ballrooms, and other places.

And I’m joined in this episode by Professor Leah Litman. She’s a professor of law at the University of Michigan Law School where she teaches and writes on constitutional law, federal courts, and federal post-conviction review. Her research examines unidentified and implicit values that are used to structure the legal system, our federal courts, and the legal profession as a whole, and she is a reoccurring guest on our show, and she’s one of the co-hosts of a terrific podcast, Strict Scrutiny. 

I couldn’t be more pleased than to have this conversation with Professor Leah Litman. Leah, thank you so very much for joining us as we are diving into our multipart series on the Trump Indictments, and very recently the Department of Justice released an unsealed federal indictment against the former President, Donald Trump, with 37 felony counts related to the mishandling of classified documents, obstructing justice, and making false statements. Leah, can you tell us a bit about this particular indictment?

2:25 Leah Litman:

So, this indictment grows out of the efforts to basically get the documents of the federal government back from the former President. So, what happened is, you know, when he left office, President Trump apparently took with him a bunch of classified and secret documents. 

Now, many people are familiar with other incidents in which this sometimes happens, you know, former federal employees or maybe current federal employees accidentally or perhaps intentionally take with them classified material.

But what makes this case different is the federal government basically begged him to give them back, right, over a series of escalating, legal coercive measures, investigating, requesting, subpoena, search warrant, and now finally, right, since he’s still refusing to admit he did this they indict him.

So, that’s basically what it grows out of is the federal government’s efforts to get back these documents and Trump’s efforts to resist that.

3:22 Michele Goodwin: 

Well, so, Donald Trump has said on any platform that is carrying this, where he’s responded, he said, well, look, Biden has classified documents or had, that the former Vice President, Mike Pence had classified documents as well. To his supporters, this seems to be an answer to Donald Trump having had classified documents. How do you respond to that?

3:59 Leah Litman:

So, that’s why I emphasize that this case is not just about him taking the documents, but him refusing to give them back because once it was pointed out, you know, that President Biden, former Vice President Pence had classified documents in their possession, what was their response? Oh, my goodness, we’re sorry, here you go, have them back.

Whereas Donald Trump’s efforts were to call a lawyer, asked do we have to respond to this subpoena, how about you come around and we hide the documents and let’s reshuffle them around to another bathroom? So, it’s the refusal to give the documents back.

4:30 Michele Goodwin: 

Oh the bathroom Leah

4:30 Leah Litman:

Yeah.

4:31 Michele Goodwin: 

Okay. See, now we’re going…I was going to like have this straight-faced conversation with you, but you’ve brought up the bathroom. What’s the bathroom scenario? People have seen…and some of his supporters say that it’s made up, that he never had boxes of important documents of federal documents in his bathroom, but what do we know?

4:53 Leah Litman:

So, in the indictment the government included photographs of boxes of the government’s classified, secret information, national security information just strewn in boxes in a bathroom at Mar-a-Lago next to some toilets. Of course, they were also apparently in ballrooms and other rooms at Mar-a-Lago, but that is literally an image in the indictment, so the country’s most secret information just next to the toilet at Mar-a-Lago.

5:23 Michele Goodwin:

Okay, he would probably respond that folks are just haters, haters. Doesn’t everybody include, you know, place their important documents in their bathrooms right next to the latrine, right next to the toilet?

5:36 Leah Litman: 

You know, I wouldn’t know never having had access to classified documents. What I will say is I was under perhaps the misimpression that Republicans took very seriously what happened in bathrooms, that they were obsessed with people comporting themselves properly in bathrooms, and I just don’t know that keeping around classified documents next to the toilet is correct bathroom decorum.

6:01 Michele Goodwin: 

Okay, you went there. Okay, yes, he would probably be saying Leah Litman is a hater. As is true, there’s been so much attention around bathrooms that it’s a bit ironic that classified documents were found not only in the ballroom and other places at Mar-a-Lago, but also right next to the toilet there.

So, Trump is not the only person that faces charges with regard to this indictment. It seems that there are other people who may have aided or abetted or conspired with this, including Walt Nauta who is, also faces charges with the indictment. 

He was actually seen removing boxes at Mar-a-Lago on a surveillance camera, and that’s also one of the ironies in this is that it’s actually footage from the former President’s house, Mar-a-Lago, whatever we would call Mar-a-Lago, estate, resort, what have you, that evidence also played a role in this indictment.

7:09 Leah Litman:

I mean, look, when you are constantly going on TV and saying I’m doing some crimes, bragging about it on social media and videotaping yourself doing some crimes, it turns out at some point the federal government will indict you.

7:26 Michele Goodwin:

That’s right. Well, I guess if you’re a personality that really seeks out being in the media and showing exactly, this is how he rolls. So, we have the Special Counsel, Jack Smith. What do we know about Jack Smith?

7:38 Leah Litman: 

So, he has kept a really low profile, I think, throughout this entire investigation, and I think really wanted his work to speak for itself. You know, the indictment is what’s known as a speaking indictment. It lays out in detail the government’s theory of the case, the factual allegations, the evidence that the government wants to present, and I think he is really trying to move the case as efficiently as possible, but also abiding by all of the rules and being overly formal, such that the government’s fairness and procedures are above reproach and can’t be questioned.

8:15 Michele Goodwin: 

So, Leah, how serious is this? So, Jack Smith has said that our laws that protect national defense information are critical to the safety and security of the United States and they must be enforced. He’s also said the violations of those laws put our country at risk. 

It seems that in media interviews the former President has downplayed this. He has said that he could have declassified these documents at any time. Seemingly, there’s no real big deal with regard to the documents that were still in his possession that, as you say, he really resisted turning back over. So, how serious is this?

8:56 Leah Litman:

I mean, I think it is serious in that it really lays bare the former President’s contempt for the law and his feeling that he is above the law and just now bound by it. You know, when the federal government asked for the materials back, he basically tried to find people to hide the documents and to help him get away with this. 

He is apparently recorded, as the indictment lays out, admitting that he knows he doesn’t actually have the legal authority to declassify these documents anymore. So, he knows, right, that what he’s doing doesn’t comply with the law. 

I think the point is he just doesn’t care, and that has always been one of the greatest threats of the former President is he does not believe in the concept of law or democracy when that runs counter to what he wants to do. And he apparently just wanted to show off, you know, the attack plans and the government secrets because that made him feel special or important.

9:57 Michele Goodwin: 

And what about the sort of threats to national security? Do you think that any of that happens to be overblown in any kind of way? I mean it’s worth noting that there’s some reporting that there were assets of the United States that have now gone missing individuals, not like paper assets, but individuals that were useful to US national security interests around the world, and the security interests of allies, one might say, that have now seemingly disappeared.

10:29 Leah Litman:

I mean, look, I think people are familiar with the notion that the government probably overclassifies documents, but what has come out about the secret, classified material that former President Trump had is extremely serious. 

When you think about, for example, allies or other countries making a decision about whether to share highly sensitive secret information with us in the future, right, or cooperate with us on human intelligence, or people willing to become human sources for the United States and they think, well, what if some crazy reality television, you know, star becomes President and again, wants to feel like the big man on campus and goes around blaring, right, that I am a spy and secret source, I mean, of course that is damaging to the country’s security, its relationship with its allies, its credibility, and its ability to carry out, right, covert intelligence.

11:26 Michele Goodwin: 

Yeah, I mean it really is crazy time, isn’t it, right? Big man on campus, I’ve got secret documents, look at me, I get to store them at Mar-a-Lago even after I leave the White House, I don’t have to turn them over, I can even put them in the bathroom next to the toilet essentially.

11:43 Leah Litman:

Yeah.

11:44 Michele Goodwin: 

So, what happens next because the former President is running for the Republican ticket, and Leah, according to polling, and we know that polling doesn’t always get it right, he is leading other Republican contenders. So, how does that sit with regard to this particular indictment?

12:05 Leah Litman:

I mean we will see whether or to what extent this indictment has any effect on his prospects in either the primary or the presidential election. I think it has been deeply dispiriting to see how his appeals to lawlessness, right, to the ostensible party of law and order, have helped him succeed, you know, previously in the Republican Primary and even the presidency. 

So, could we see some negative effect from this indictment or from the prospect that he is jeopardizing the country’s national security? I hope so. I am, I guess maybe more confident that that might happen in the general election when I hope that, you know, normies would be worried about that and would not be taken in by his crazed rantings and conspiracy theories. 

I mean if you listen to the stuff he’s saying on Truth Social, I just don’t think normies would understand half of what he is saying. I mean you have to be pretty immersed in like QAnon in order to understand some of his…

13:07 Michele Goodwin: 

Conspiracy theories?

13:08 Leah Litman:

Yeah, references. So…

13:12 Michele Goodwin: 

But haven’t we seen that, right? I mean, look, there…folks that thought that Hillary Clinton had a group of kids that she was holding hostage under a pizzeria in Washington, DC, and someone became so emboldened as to get in his pickup truck and go with guns and whatnot blazing into the pizzeria. So…

13:33 Leah Litman:

No, I have…I have very real concerns about him facilitating and mobilizing extremist violence, right? We have already seen…

13:39 Michele Goodwin: 

January 6th…

13:41 Leah Litman:

…incidents of that. Exactly.

13:41 Michele Goodwin: 

…right? I mean…

13:42 Leah Litman:

Exactly.

13:43 Michele Goodwin: 

I mean there were people that were protesting outside of the courthouse when the indictment came down.

13:50 Leah Litman:

Yes. No.

13:51 Michele Goodwin: 

Right.

13:52 Leah Litman:

Right. And like, he makes these statements, you know, see you outside the courthouse that, you know, he insists are not actually inciting people, right, to show up and you know, potentially cross the line and make threats and whatnot, but the subtext is very clear given past practice, given him basically promising to pardon the January 6th insurrectionists and people who engage in political mob violence.

14:17 Michele Goodwin: 

You can’t make it up. All right, Leah, just a couple other quick questions. And thank you so much for joining us on this 15 Minutes of Feminism show where we count minutes in our own feminist time and terms.

So, people are wondering what happens if in fact the former President is found guilty of half, one, maybe all of these charges and yet he is running for office. How does that all sort out?

14:47 Leah Litman:

I mean we don’t know. I think there’s a very real possibility that this trial is not going to be completed by the time of the election, and I think there is a real threat that if he is elected President that he would stop the prosecution, pardon himself, right, and any other people to put a stop to this. So, I think that that is a real possibility that we are staring down.

15:16 Michele Goodwin: 

Okay, we always ask, although I have to say in this series it’s hard to ask the question, and that is what’s the silver lining going forward and the weight of where we are in our democracy to…in my view is just thinking about people scaling the Capitol, the confederate flag for the first time making its way to Washington, DC, and yet throngs of, millions of Americans who believe that the former President was in fact wronged, was in fact robbed, that he is speaking truth to power. 

How does one sort out a future in light of that, and how does one actually think about a silver lining, but since that is what we do and there’s a reason why we ask about silver linings. Leah, what in all of this could we possibly make out of a silver lining?

16:10 Leah Litman:

I mean, I think one silver lining is, you know, he is finally facing some accountability for flagrant, brazen violations of the law and the prospect that he could actually face accountability, whether that is a result of this 37-count indictment in Florida or some of the proceedings in New York, or some of the potential investigations in Georgia, or the investigations into January 6, right? 

I think that that is the silver lining because the worst thing you can do for a democracy is just let it slide when people try to do a coup and undermine democracy, right? That is how democracies die, right? And so, it is worth pursuing the fight to keep people accountable under the laws for undermining our democracy.

16:58 Michele Goodwin: 

Guests and listeners, that’s the brilliant Professor Leah Litman at the University of Michigan. Thank you so very much for joining us again and for this episode of 15 Minutes of Feminism as we are tackling the Trump Indictments.

17:15 Leah Litman:

Thank you for having me.

17:17 Michele Goodwin: 

Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. Magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode where you know we’ll be reporting, rebelling, and telling it just like it is. For more information about what we discussed today, head to msmagazine.com and be sure to subscribe. 

And if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America and being unbought and unbossed and reclaiming our time are important, then be sure to rate, review, and subscribe to On the Issues with Michele Goodwin at Ms. Magazine. 

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