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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Here's the challenge right now or one way to look at it for Attorney General Merrick Garland, as described by New York Times justice correspondent Katie Benner, who will join us in a minute. She writes, "A decision to prosecute or to decline to prosecute has political implications that Mr. Garland cannot escape. Trump supporters have viewed any investigative steps around the former president as illegitimate attacks by a partisan Justice Department that is out to get him. Trump's detractors believe that any decision not to prosecute, no matter the evidence, would show that Mr. Trump is indeed above the law."

We'll talk to Katie Benner about that dilemma facing Garland in a minute, but only one of those sides seems to be threatening civil war if it doesn't go their way. Maybe you've heard by now this statement by Republican Senator Lindsey Graham talking the other day to former Republican Congressman Trey Gowdy.

Senator Lindsey Graham: If there's a prosecution of Donald Trump for mishandling classified information after the Clinton debacle, which you presided over and did a hell of a good job, there'll be riots in the streets.

Brian Lehrer: Now, Senator Graham may argue he's just describing the situation, not threatening or condoning riots in the streets, but it's not just Democrats who might hear his words as a call to arms. We know that's how many of the January 6th rioters heard Donald Trump even as he carefully retained some plausible deniability in his provocative language. A new YouGov poll from The Economist magazine finds a majority of people who describe themselves as strong Republicans, 54%, think a civil war is very or somewhat likely in the United States in the next 10 years. Only 40% of strong Democrats, which is high enough, predicted that compared to 54% of strong Republicans.

Lindsey Graham must know how he will be taken among the most violence-prone Americans on his own side, right? One consideration for Merrick Garland, though in theory prosecutors stay out of politics, is how much of a crime they think Donald Trump may have committed is worth how much in political and cultural consequences. With us now is New York Times Justice Department correspondent Katie Benner. Her latest article on all this, Document Inquiry Poses Unparalleled Test for Justice Department. Katie, thanks for tackling the tough stuff and thanks for coming on to share it with our listeners. Welcome back to WNYC.

Katie Benner: Thank you so much for having me.

Brian Lehrer: Let me start here. You report, "Prosecutors working for Attorney General Garland are nowhere near making a recommendation to him about whether to prosecute or not." I've seen other reporting that also suggests this investigation is still in its early phases. I think to a lot of our listeners, to a lot of the general public, it might feel closer to the end. Trump took some of the most classified kinds of information and he took a lot of it.

That seems demonstrated already. He resisted giving it back for all this time. Then he apparently lied about giving it all back, which sounds like obstruction of justice, and the large volume of classified material seized in the search seems to prove it. Whether or not that's worth bringing charges for, it feels like the investigation might be near the end when people watch or read or hear the news. Why is it not?

Katie Benner: Let's break down some of those elements one-by-one because you've made great points. I think first and foremost is the fact that the FBI is still gathering evidence. They did subpoena documents from Donald Trump, they asked for documents from Donald Trump, NARA requested them, and then they took the extraordinary step of actually going to his home in Florida to Mar-a-Lago to retrieve documents.

It's not known whether or not they have all of the documents, first of all. They haven't yet had time to go through everything they found to determine whether or not they believe that what was taken was not just marked highly classified but really harmed US national security interests in some way. I'll get to that point in a second. First of all, the investigation is still ongoing.

Keep in mind, there are also more witnesses perhaps to interview, to try to bring context to bear as to why it took so many tries for the Justice Department to get this information. There's more video camera footage they've requested. Who knows if they'll get it? There are other investigative steps. For starters, that is one reason why they're still in very early innings despite the fact, as you described, the narrative coming to the public does seem very damning on its face.

Brian Lehrer: Interesting.

Katie Benner: Second of all--

Brian Lehrer: Oh, go ahead. Sorry.

Katie Benner: No, I'm saying, but then second of all-

Brian Lehrer: "Second of all." Go ahead.

Katie Benner: -is the evidentiary piece, right? The documents have very serious classified markings-- sorry, very top-secret classified markings. It's clear that they're considered within the national security community to be of grave importance. Keep in mind, and I think this is an example we'll probably touch on a lot, in the Hillary Clinton investigation, she also had documents that had classified markings and were considered within the intelligence community to be very secretive.

However, some of those issues in the documents had already been widely reported by The New York Times, by The Washington Post. We put those very issues and the information contained in those documents on the front pages of our newspapers. Imagine being a federal prosecutor trying to prosecute Hillary Clinton for the crime of having that information and having to make the argument before a jury that doing so had harmed US government interests and put people in danger.

It's really hard to make that case once the press has already published those kinds of stories, so it would be a really hard case to win. They will have to go through all of the classified information that Donald Trump had held on to, to try to run that analysis. Is this something that we can truly argue before a jury that the retention of this document actually put the United States of America in danger?

Brian Lehrer: Yes, that is so core. It goes to what Lindsey Graham was referring to in that clip, not just the fact that they're investigating Trump and might prosecute him, but the fact that they investigated Hillary Clinton and did not prosecute her for retaining and allegedly lying about retaining classified materials. In fact, I want to read from The Wall Street Journal editorial page today that claims there is a very close and very recent historical parallel.

Everybody's calling this decision facing Garland unprecedented. The editorial is called, The Comey-Clinton Document Standard and Trump. I'm going to read a couple of paragraphs. It says, "When Jim Comey held his July 2016 press briefing on Hillary Clinton's emails, his conclusion was this, 'Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.'"

Then it says, "As Mr. Comey said in his 2016 press statement, Mrs. Clinton falsely claimed that she had turned over all work-related emails to the State Department, but the FBI found several thousand work-related emails that weren't turned over." That's obviously drawing a parallel with Trump saying he turned everything over and didn't really. It continues, "He also said Mrs. Clinton's lawyers hadn't even read her emails when deciding what to turn in. They relied on 'header information and search terms' and then 'cleaned their devices in such a way as to preclude complete forensic recovery,'" which sounds like it could be obstruction of justice, right?

The Wall Street Journal editorial page concludes, "All of this sounds similar to the behavior the FBI says in its affidavit that it suspects of Mr. Trump, who may not have turned over all the documents the National Archives and FBI wanted. One complicating legal difference is that Mr. Trump operates under the Presidential Records Act, whose language assumes there will be some give-and-take between the archives and a former president over documents."

Katie, that's from The Wall Street Journal editorial board. Obviously, that tends to be a partisan Republican editorial board, but it makes those points. My question is, from your reporting, what would somebody more inclined to prosecute Trump say is different about his case compared to Hillary Clinton's and the decision Comey made not to go there?

Katie Benner: Again, I'm going to take that in two parts. I think inside the Justice Department, they would say that the actual cases are not going to be treated differently, that they're going to be treated exactly the same. I can walk you through right now what that entails. Once the information comes in, in the case of Clinton, and I talk about this in the story that I wrote, in the case of Clinton's use of a private email server while she was the Secretary of State, officials in the National Security Division and the career prosecutors there, but officials asked them to do a deep historic dive of the possible crime she committed, the statute that she possibly could have violated, which was the Espionage Act.

This is also a statute in question here for former President Trump. The issue was whether or not Clinton's handling of classified information indicated she had engaged in a part of the statute that makes "gross negligence" wrong. They had to go through and look at the history of the Espionage Act and when it had been charged and what it took for the Justice Department to successfully argue a compelling case of gross negligence.

They did find a case and it involved a former FBI agent, but they found that what the FBI agent had done also included far more serious factors. By looking through all these past examples, they just found that the Clinton case did not meet the standard that the department would need to successfully prosecute this case. They didn't have enough evidence of wrongdoing. When they look at the Espionage Act vis-à-vis President Trump, they're going to do that same exact historic dive and it will, in fact, include Mrs. Clinton's case.

That standard that she was held to will be a factor in Donald Trump's case because the Justice Department really, really takes serious precedent in history. Mrs. Clinton's case is actually going to be part of the analysis done to decide whether or not the Justice Department have the evidence necessary to be able to prove that Donald Trump violated the Espionage Act.

Now, there are some differences, of course. The Justice Department was not necessarily investigating whether or not Hillary Clinton was obstructing justice. We actually do not know whether or not the Justice Department will determine based on the facts that they find and they continue to uncover. We don't know whether or not they will find that Donald Trump has obstructed justice.

The first part is the analysis that I just described. The second is that I caution anybody, whether it's me as a reporter or anyone. I would be very cautious about making a determination knowing so little about what the Justice Department will ultimately find vis-à-vis Donald Trump and whether or not they will, in fact, come to similar conclusions as Comey did with Hillary Clinton or whether or not they will conclude something else.

We really just don't know. While I understand that The Wall Street Journal wants the Justice Department to run the same sort of robust analysis in the Trump case that they did in the Clinton case and I think that is right to do and I think that is what they will do, I think that saying that the Justice Department must come to the same conclusion as they did in Clinton's case is-

Brian Lehrer: Premature at least.

Katie Benner: -probably a little bit premature because the Justice Department is not even done collecting evidence.

Brian Lehrer: Listeners, your thoughts and questions are welcome here for New York Times Justice Department correspondent Katie Benner as she reports on the historic challenge now at hand for Attorney General Merrick Garland regarding Donald Trump with potential political consequences, among the potential consequences overall, on any side of the political divide in this country. 212-433-WNYC, 212-433-9692, or you can tweet your comment or your question @BrianLehrer.

Katie, let me go back to something you alluded to a few minutes ago that you addressed squarely in your story. Your article describes one of the challenges for deciding whether to prosecute as a challenge of the credibility of the Justice Department if the national security threat presented by Trump's possession of the documents does not seem substantial enough to warrant a prosecution.

I think that's a really important point that isn't getting discussed very much. That is Trump might have illegally kept all these documents and even illegally obstructed the government from even learning what documents he had. Unless he intended to give this classified information to enemies of the country, let's say, for nefarious purposes, maybe all he's guilty of is being a power-hungry, narcissistic hoarder. [chuckles]

Katie Benner: Well. [chuckles]

Brian Lehrer: In that telling though, it's no harm, no foul, right? The search brought the documents back, called the guy reckless like Jim Comey called Hillary Clinton, and live on another day to fight battles worth fighting. My question is, does your reporting give us any evidence yet of the Justice Department's assessment of the actual threat to national security or any actual damage done by Trump having these documents?

Katie Benner: That's an assessment that's still underway and it's an assessment that the department probably won't be able to do just on its own. It will need to reach out to the agencies that own or generated the information. For example, whether it's the Pentagon or whether it's the CIA, whomever it might be. I'm just throwing those agencies out as hypotheticals. I don't want anybody to think that that's most certainly the agencies at hand in question, but they'll have to actually talk to these folks and say, "What do you feel is at risk here by having this not secured as a classified information should be?"

I think one really interesting example that we can talk about because we know that Donald Trump hung onto these and we know that they were considered very sensitive were the letters that he received from North Korean leader Kim Jong-un. They were not top secret, but they were certainly something that would be considered important, historic, and he didn't want to give those back.

He wanted to wave them around. He wanted to show them to visitors. He wanted to keep them as trophies. You say to yourself, "Okay, well, is it a violation technically of the Presidential Records Act for him to have kept those? Absolutely, but are you going to bring somebody before a jury of his peers to say he should be put in jail for wanting to, I'll use some of your terms, not all of them, to hoard them?

Then, for example, if we look at a hypothetical piece of classified information as in the Hillary Clinton case, she had classified very sensitive information about drone strikes. Those drone strikes had already been reported on extensively in the media. Do you put Hillary Clinton on the stand and say she endangered the United States when The Washington Post had already run that information or when The New York Times had already run that information in its pages? A really hard case.

Again, that is the analysis they need to be able to do because if they do not find information that rises to the level of being able to say, "Yes, this really threatened the United States," that's going to be hard for a jury. The other complicating factor is that some classified information is so sensitive that it cannot even be presented to a jury. Then how does the Justice Department make the argument that Donald Trump risked the national interest and security of the United States, put people in harm's way when it's really difficult to talk about some information publicly?

Brian Lehrer: Another dilemma for Merrick Garland. Based on your reporting, do people you talk to have any leading theories about or do you about why Trump took so much classified material home and what he intended to do with it? I know something like the Kim Jong-un letter might be a trophy as you describe it, but there was all this other stuff.

Katie Benner: Hundreds of pages.

Brian Lehrer: Hundreds of pages and reportedly including the names of spies and people who provided intelligence to the United States whose lives could be at risk if their names got out. I'm having trouble finding any guest, no matter how many segments we do on this, who have a really good theory about what he intended to do with that stuff and why he wanted so badly to keep it. Are you hearing anything?

Katie Benner: I think part of the reason why you, me, and every other guest is having a hard time coming up with a theory is simply because it's impossible to really understand Donald Trump or to be in his head. I think the person I know who does the best job of it is probably my colleague, Maggie Haberman. If Maggie tells me that she isn't really quite sure why he would've done this, then I'm going to say that there's no way I could possibly answer. What we do know is that he very much, throughout his entire presidency, wasn't really interested in information that was classified for security reasons.

He didn't treat classified information as special. We've reported incidents of him being bored by it or taking classified briefings and not taking appropriate security cautions of having private conversations at Mar-a-Lago in public places that shouldn't have happened. He didn't really have a respect for classified information that we do know. Clearly, he wanted to keep things that caught his interest and caught his attention regardless of their classification marking. We also know that he did not have a lot of respect for the rules and norms of the government.

Brian Lehrer: We'll take a break in a second and then take some questions from our listeners. Our caller board is full as it probably doesn't surprise you on this topic. Wouldn't the National Archives have had copies of the things that Trump took and so they have it or, conversely, if he made copies for himself but the government still had the originals, would that be the same kind of potential violation?

Katie Benner: Well, that's an interesting thing about Trump. There are a lot of stories of him ripping up papers, throwing them away, his aides having to scramble to Scotch-tape them back together. Maggie has reported that he also tried to flush pieces of documents down the toilet. The thing is, is when you're the president, the papers that you create, including your own handwritten notes, those things, which the archives might not have because handwritten notes wouldn't be on a server, still should be given to the archives and archived.

In fact, in one of its letters to, I believe, the House Oversight Committee, the National Archives described-- I don't remember if it was a letter to the National-- I don't remember if it was a letter to Congress or if it was in one of the more recent court filings, so don't quote me on that part. The National Archives has described receiving information from Mar-a-Lago and opening up and finding papers not in folders, crumpled up, in really bad shape. Clearly, they were flummoxed by this. To your point, there is some information the archives wouldn't have. Anything on a server, they would have immediately.

Brian Lehrer: A number of people are calling in on the Hillary Clinton parallel that some people see here and some people see less of. Let's see what some folks are saying or asking about that, beginning with Elsa in Long Beach. Elsa, you're on WNYC. Thank you for calling in.

Elsa: Yes, I wanted to point out that I believe Hillary Clinton was mainly accused of having emails on her personal server and not of actually carrying paper out of any office or anything of that sort. I do also remember, and I heard it on WNYC, Colin Powell saying, he said, "Well, that's what I did. I used my personal server." He said that they hadn't really established another way of doing things with the government. We learn slowly about all these new methods of communication.

Brian Lehrer: Technological tools, yes. Thank you very much. Good memory about Colin Powell. I think there's a question about, which is more potentially damaging to national security, having it on your server or having paper copies in your closet? We'll get back to that, but let's hear another caller. James in Greenwich, you're on WNYC. Hi, James.

James: Yes, hello. My question is related in that, I guess, we don't know exactly what was in Hillary Clinton's emails, unless they were attachments of documents. Normally, people write emails. They write dialogues regarding a document or suggestions about a document or comments. We don't know for sure, but versus Trump when he had these sensitive, compartmentalized documents, that it's hard to believe that someone would attach those to an email. I guess it goes to the likely difference in the nature of the classified information. We don't know for sure, but we could imagine that there is a difference.

Brian Lehrer: James, thank you very much. Dennis in Rockland County, you're on WNYC. Hi, Dennis. Thanks for calling in.

Dennis: Hey, how are you, Brian? Thanks for having me on, but I differ with some of your call as I hear what they're saying. Hillary clearly also broke BlackBerrys. That's destroying physical evidence even in the penal law in New York. How do you not draw the parallel between the two acts, both the president and the past president and Hillary and what she did? Like your guest said, they both said that they turned over everything when, in fact, they didn't. I think it's just too early to call. You have to be careful when you're really prosecuting an ex-president.

Just to go to her point as to why he may have done it. He is a New Yorker at heart and he probably did it simply because he thought he could as the president. Not anything complex. I really don't think there's any complex thinking going on with him. You know his background. He was a real estate magnet, how he came up in our world, in our generation. He's the president and he's like, "I do it because I can." I don't think that he was looking to share this information with any foreign government, no less than was Hillary.

Brian Lehrer: Dennis, thank you. Thank you very much.

Katie Benner: Can I just make one statement to that, Dennis?

Brian Lehrer: Katie, you want to jump in on that? I think you're going to do the same fact-check that I was going to do, but go ahead.

Katie Benner: Well, no, I was just going to say quickly about the parallel between Trump and Hillary. The Justice Department wouldn't say that they are drawing a parallel, but the Hillary Clinton case is going to be one of the many cases that they put into that matrix of previous prosecutions/investigations that did not end in prosecutions regarding mishandling or handling of classified information.

While the public draws a parallel between the two and tries to compare one to the other in a way, which was better or worse, know that the Justice Department is doing not that but something similar that Hillary's going to be thrown into the hopper with all the other investigations. They're going to debate why different conclusions were drawn. They're going to use that to compare it to Trump and say, "Well, this is the evidence we have in Trump." Was it more egregious, was it less, was it more serious, et cetera?

Brian Lehrer: There's a Hillary Clinton standard. There may also be a David Petraeus standard.

Katie Benner: Absolutely.

Brian Lehrer: Maybe we'll get to that in a second. The last caller mentioned, Hillary Clinton destroying BlackBerrys. I don't remember that. Maybe it happened. Maybe you know specifically, but The Wall Street Journal editorial board did quote Comey from that time. The FBI director saying that, I'm looking for the reference, Clinton's lawyers "cleaned their devices in such a way as to preclude complete forensic recovery." That would suggest the destruction of data even if not a destruction of the physical Blackberry. What do we know?

Katie Benner: In the actual report that came out on Hillary Clinton, I don't remember if it was the FBI that put it out. I think it was the FBI. They did put out a report. Politico very helpfully pulled out the most oh-my-goodness moments from that. One does talk about how Hillary's aides would set up her devices. Then when she was done using them, nobody really knew what happened to them once she transitions to a new device.

According to the report, and this is Politico's reporting, "Cooper, according to the report, 'did recall two instances where he destroyed Clinton's old mobile devices by breaking them in half or hitting them with a hammer." That's not out of the blue. Keep in mind, while that was noted in the FBI report, that was not found to be nefarious.

Brian Lehrer: To the point that the earlier two callers were making, which I think we can boil down to, all Clinton did was have them on a server. Trump took the actual documents. I saw a Republican congressman on CNN a few weeks ago, I forget who, making the case that on a server, it's actually more vulnerable because spies from other countries or whoever can hack a server if they're skilled enough. If you have the physical papers in a box in your closet, it's actually less vulnerable. How does law enforcement actually see that comparison?

Katie Benner: Well, interestingly, in this case, we know that law enforcement didn't think that having the papers in the box in the closet was secure because when a Justice Department official visited Mar-a-Lago, one of the things he noted was that the classified information was not being properly held, that it was not safe. He asked for that standard to be raised.

The Trump team decided they would put an extra lock on the door of the room where things were being stored. Certainly, that's not an ideal way to secure classified information. While you're right, hackers can get into US government servers and they certainly have. Keeping things as, I love this term, "unfoldered" out of its folders, strewn around, cast about in an unlocked room is also not safe.

Brian Lehrer: A couple of more callers. Chad in Manhattan, you're on WNYC. Hi, Chad.

Chad: Hi, thanks for taking my call. If anyone else had taken as much information and had lied about it as Trump had, there would be a massive counterintelligence investigation. The, at least, sort of presumption would be that they were going to shop it to foreign governments. Have you heard any indication that the FBI is carrying out that kind of counterintelligence investigation to see who Trump may have leaked it to or may continue to try to sell it to, or do you think Trump is going to be treated with kid gloves as usual and not even investigated for that?

Katie Benner: Well, I think that in order to conduct the kind of counterintelligence investigation that you've referred to, and we don't know that that wouldn't happen, but I think in order for that to happen, the department first needs to know everything that they have. They need to do an assessment with the intelligence community to try to determine whether or not it would be terrible for the US government if it were to fall into other hands. They would need to find evidence, which is, keep in mind, they're conducting witness interviews. They're looking at security footage.

They would also need to find evidence that Mr. Trump had ever attempted to do any of the things that you just described. Now, certainly, in the course of their investigation, they find evidence that anybody, any of the people walking through Mar-a-Lago who might have had access to this room had tried to, for example, sell it as you proposed. That would, of course, open up an investigation. The government doesn't go into an investigation, an inquiry, and say, "Well, we should open up a counterintelligence investigation just in case." They actually have to look at the evidence. They have to see if it leads them to the conclusion that that kind of example had actually occurred.

Brian Lehrer: We keep talking about the sensitivity of this classified material with names of spies and everything else, but there's also the issue of Trump's right as president to have declassified anything he wanted before leaving office. I've seen reporting that whether or not the material is classified is actually irrelevant to the crimes the Justice Department told the court it's investigating. To this day, I don't understand that. Is it clear to you if that's the case and why it would be irrelevant?

Katie Benner: I'm not going to get the US code number correct. [chuckles] In at least one of the statutes, the way that it's written is it doesn't refer ever to classified information. That term, it doesn't use classified information. It only speaks of information that speaks directly to the national security interest of the United States, to the safety of the United States, the national security of the United States. In that way, it doesn't need to be technically classified if the Justice Department can show that having that information out in the wild unsecured hurts the interest of the United States.

Brian Lehrer: Stefan in Linden, you're on WNYC. Hi, Stefan.

Stefan: Oh, good morning, Brian. How are you?

Brian Lehrer: Okay, what you got for us?

Stefan: My question may sound obvious for some or stupid for others. If I get caught or I'm taking a candy bar from the store, nobody asks me for the intentions. The intent was to eat it, to give it to someone else, maybe to return to the store the next day. It's shoplifting, so theft. He took something, which I think doesn't belong to him. Is it easy to go with that charge like theft?

Brian Lehrer: Easy, but, Stefan, if he was the president of the United States entitled to know all this classified information, is it the same as walking into a store and stealing something?

Stefan: Yes, but at the moment when he took the stuff, he wasn't the president of the United States. It was he left on that day after the inauguration. He wasn't the president at the moment when he took it. Even if he was the president, that belongs to the people of this country, not to him, I guess. Maybe I'm wrong.

Brian Lehrer: Stefan, thank you so much. Please call us again. Katie, we're getting a good sampling of exactly the premise of your article, which is that if they do prosecute Trump, there's going to be a firestorm on one side from people who think he's being politically picked on. If they don't prosecute Trump, there's going to be a firestorm from the other side. Maybe not as much potential violence, but still a lot of unhappiness feeling like they're letting him off the hook because he's Donald Trump and they don't want trouble.

Katie Benner: Well, that's why it's imperative for the Justice Department to be able to fully explain his decision either way. In the instance where it would indict Donald Trump, the department will speak through its filing. It will speak through its court documents and lay out its strong case should it have a strong case for doing so and in the instance where it chooses not to indict Donald Trump. One of the interesting things, it's the department's own filings that have put the possibility of things like obstruction of justice or violations of the Espionage Act into public view.

If the department decides that it does not have the evidence necessary to charge those crimes or it doesn't feel that what Trump did or the security risk of the documents didn't rise to a level that they find that they should charge those crimes, then it will have to find some way, I think. Now, this is where I am willing to proffer an opinion. I think the department will have to find some way to explain to the public that decision. It's not something the Justice Department often does. They generally don't discuss declining to charge somebody. In some cases where the public interest has been so great, they have made that step.

The most recent example I can think of is in Ferguson when Michael Brown had been shot, the officer in question was being investigated. There were protests all over the country. There was violence. When the department chose not to charge that officer because it decided the evidence it had did not rise to the level of bringing charges against that officer, it actually did put out a full report with an explanation.

Brian Lehrer: Interesting. I know you got to go. One quick fact-check from a listener tweeting what might be a correction to me. It says Hillary Clinton's server was not connected to the internet, so it couldn't have been hacked. Do you know if that's true?

Katie Benner: That, I don't know. I just know that it was her personal server, but I have no idea how often it was ever connected to the internet.

Brian Lehrer: Katie Benner, New York Times Justice Department correspondent. Thank you so much for all your reporting and giving us a lot of time today. Thanks.

Katie Benner: Thank you.

 

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