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Brigid Bergin: It's The Brian Lehrer Show on WNYC. I'm Brigid Bergin, a senior reporter in the WNYC and Gothamist newsroom, filling in for Brian who's off today. On today's show, we will talk about what we know about the latest indictment of former President Donald Trump and later on the magofication of New York. Plus a conversation with the city's health commissioner about what we need to know now and what we learned for the future about how to protect our health from the recent stretch of toxic air. Plus, how clean or not the ocean and other bodies of water are in this area. Full disclosure, this conversation was supposed to happen yesterday, but the Supreme Court changed our plans. First, as you may have been hearing or reading this morning, former President Trump has been indicted again.

This time it's on federal charges stemming from the Justice Department's investigation into his handling of classified documents after leaving office. A grand jury in Miami, Florida handed up the indictment. This marks the first time a former president has faced federal charges. That's an important distinction from his first indictment here in New York back in March on state charges for falsifying business records for alleged hush money payments to an adult film star Stormy Daniels. Trump is expected to appear in court on Tuesday in Miami. Joining me now to help make sense of this latest case is Quinta Jurecic, a fellow in Governance Studies at the Brookings Institution and senior editor at Lawfare. Quinta, welcome back to WNYC. Thanks so much for joining me.

Quinta Jurecic: Good to be with you.

Brigid Bergin: Quinta, can you tell us what do we know about the specific charges against Trump in this latest indictment? There have been reports of seven charges according to Trump's lawyers. Here's a little bit from Trump's Attorney Jim Trusty on CNN, just recently.

Jim Trusty: They basically break out from an Espionage Act charge, which is ludicrous under the facts of this case, and I can certainly explain it, and several obstruction-based type charges, and then false statement charges, which are actually, again, a crazy stretch just from the facts as we know it.

Brigid Bergin: Can you expand a little bit on what we understand these charges to be so far?

Quinta Jurecic: Sure. Absolutely. I should really emphasize as you've hinted with that audio from Trump's lawyer, Jim Trusty, we're operating only on the basis of information that Trump and his defense team have chosen to provide us. Obviously, they've spoken about this publicly, Trump announced this publicly in a post on his bespoke social media network, Truth Social. It seems like most news publications have been reporting out from that information. I think it's important to keep that in mind. The New York Times has reported that yes, as you say, there's a total of seven counts, and that the precise details of the charges are not clear, but that the charges include willfully retaining national defense secrets. That's a violation of the Espionage Act if your listeners have become familiar with that, in the course of this investigation, along with conspiracy to obstruct justice, and as Trusty mentioned, making false statements.

That essentially means that someone, perhaps Trump, lied to federal investigators and that that is also a charge here.

Brigid Bergin: Just to underscore the point, as you said, we have not heard from the Justice Department on these charges. Is that something we would expect in this case or is that pretty typical?

Quinta Jurecic: Usually, what happens in these cases is that the Justice Department will reach out, in a white-collar case, to the defendant and say, "Hey, we're going to indict you, we're going to ask you to present yourself for an arraignment in court on this date." Analogous to what listeners might be familiar with has happened in the Manhattan indictment. Typically, the defendant does not then go off on a press tour telling everybody everything that he knows about the charges. I think what I would usually expect to see is that the document itself would be unsealed in advance of the arraignment. In this case, because Trump has jumped the gun and started spreading all this information publicly, perhaps the Justice Department would change its approach. It's extremely possible that we could be waiting until Tuesday when the arraignment is according to Trump's schedule to see the actual charges.

Again, I feel like a little bit of a broken record here, but it really is very similar to the Manhattan case report that was brought by Manhattan DA, Alvin Bragg, by their state government, not by the federal government. You see a very similar pattern where Trump is apparently informed by prosecutors on Wednesday or Thursday that he's going to be facing indictment. He immediately goes to social media and sends his lawyers out there. Everyone is just waiting for the actual material to drop in the meantime. In the Manhattan case, of course, DA Bragg chose not to release any additional information until the actual arraignment itself. We may well see the same pattern here.

Brigid Bergin: It's interesting. Listeners, we can take your calls on the federal indictment of former President Donald Trump. He's accused of mishandling classified documents he kept after leaving office and then obstructing the government's efforts to get them back. Based on what we've seen so far in the reporting-- The number, of course, is 212-433-WNYC. That's 212-433-9692. You can also send a text to 212-433-9692 if you want to join the conversation. Quinta, you've talked about how there are some parallels to what we saw in the state indictment, but these are federal charges brought forward by the Justice Department. Can you talk about why that matters or how does that differ from the charges Trump faces here in New York over the hush money payment to Stormy Daniels?

Quinta Jurecic: Absolutely. The cases regarding the Stormy Daniels hush money, I think it's easy to maybe write it off as less significant in some way. It doesn't speak to Trump's actions as an officer of the public, somebody who's operating with a public trust. Now, I would argue that there is an aspect in which that is actually an important aspect of the case. When you look at the material that is at issue in the Mar-a-Lago case from public reporting, and from the documents that we have seen filed by the Justice Department in this case so far, it really speaks, I think, to how Trump understood himself and his role as president.

Now, the particular facts, and I'll just run through them quickly to just give a quick overview has to do with the fact that Trump reportedly or allegedly took material that was classified, that belongs to the US government, with him when he went to Mar-a-Lago in his post-presidential life, and then repeatedly failed to give that back to the government when it came looking, both when the National Archives came looking and when the FBI showed up with a subpoena. That I think is significant in terms of what it says about Trump's conception of himself as a former chief executive. This is somebody who does not consider himself to be bound by the usual structures that constrain public actors. You're not supposed to just take documents home with you when they belong to the government, especially when they're classified.

This is also somebody who feels himself to be above the law, in a sense. That even though he was leaving the presidency, these documents belong to him in an abstract sense. I'm framing this here as what this tells you about Trump's conception of his own role. I do think the fact that it is a federal charge obviously speaks to the fact that the federal government has jurisdiction because these are crimes that are related to material that belongs to the federal government. Then on just a very crass level, people tend to take the federal government a little more seriously, whether they should or not. If someone's indicted on federal charges, that has maybe a little more heft to it. There's also a significance in the sense that this is the Justice Department, a special counsel in this case, who is going after a person who was previously in charge of that department, and may if he wins the presidency, be in charge of that department again.

You don't run into those same questions on the state level, simply because it's a different government. Now, you do run into other questions that Trump has tried to raise about the ability of a state prosecutor to go after a former president. I think that the particular posture of a federal case really underlines the extent to which we are truly in uncharted waters here.

Brigid Bergin: If you're just joining us, you're listening to The Brian Lehrer Show. I'm Brigid Bergin filling in for Brian who's taking the day off. I'm speaking with Quinta Jurecic, a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. We are talking about the latest indictment of former President Donald Trump. We're going to go to some of our callers. Let's go to Richard in Brooklyn. Richard, welcome to WNYC.

Richard: Thank you. Good morning. One quick comment and then a question. I don't think we need to look very far to see what this guy's motivation is, because long before he was president, this is somebody who just doesn't like to be told, "No. You can't do anything." His attitude is, "I can do whatever I want." My question is, there's all this talk about perhaps the DOJ will make a motion to the judge requesting that the indictment be unsealed prior to Tuesday's arraignment. My question is, why does Quinta think that the indictment was sealed in the first place? I've listened to a lot of legal analysis since last night, and I haven't heard anybody say what the motivation is for it being sealed in the first place. Thank you.

Brigid Bergin: Richard, thanks so much for your question. Quinta, thoughts on why they are keeping this indictment sealed at this point?

Quinta Jurecic: Absolutely. It's pretty typical for an indictment to be sealed ahead of an arraignment and the reason is often that it has to do with the privacy of the defendant. If you think about it, let's say I'm being indicted on something, I'm not going to have an opportunity to speak publicly and say, "I'm not guilty of this charge," until I actually show up in court on that day and reporters can put that out there. Now, of course in Trump's case, it's a little different because he has in some ways the nation's largest megaphone but essentially it's important to understand this is very, very typical. This is not a sign that anything is happening that is unusual or anything like that, that this is pretty much par for the course.

Brigid Bergin: Quinta, can you remind us a little bit about this special counsel, Jack Smith, who is leading this investigation? What is his background?

Quinta Jurecic: Smith is a career prosecutor. I believe he worked on public corruption cases before he headed off to the Hague where for the last few years he has been working to prosecute war crimes out of the former Yugoslavia. If you look up pictures of him, you can see him wearing some very impressive purple robes. Unfortunately, I don't think he's wearing those robes in his current role as the special counsel, but you can see how that might make sense as someone who you'd want to step in and say, this is not somebody who has a political background. This is someone who is familiar with the challenge of investigating politicians, and of investigating high-profile political conflicts, for example. It's also somebody who hasn't been in the United States recently and so maybe has a little bit more distance from these kinds of political dogfights than other folks who might have been tapped.

Brigid Bergin: This documents case is not the only thing Smith is investigating. He's also investigating Trump's effort to overturn the 2020 election in connection to January 6th. Is that right?

Quinta Jurecic: That's correct. Smith has essentially consolidated two different threads of the Justice Department investigations. As you say, he's investigating the Mar-a-Lago case. He's also investigating what we might think of as the white-collar element of January 6th. Not the folks who were on the ground that day invading the capitol, but the folks who were more responsible in terms of engineering what happened, looking at Trump's culpability, looking at the culpability of people around Trump. That investigation, it seems like is moving a little bit more slowly than the Mar-a-Lago investigation. We haven't heard an enormous amount of news about it recently. We do know that Vice President Mike Pence recently testified in front of a grand jury in that case so at least there's some indication that that case is moving forward.

We don't have indication that it's headed full-steam ahead toward an indictment, or that an indictment is already in the bag in the way that we do here. I think it's also important to emphasize that in some ways, the January 6th case is a harder case. What I mean by that is that in the Mar-a-Lago case, it's relatively straightforward. There were documents that belonged to the US government that were classified that Trump took that he shouldn't have had, and he refused to give them back. That's a very simple story to tell. In the January 6th case, there are a lot of more complications that have to do with what exactly did Trump do in the run-up to the 6th? Were the things that he did illegal or were they protected by the First Amendment?

Also importantly, is he shielded by the fact that he was president at the time? In the case of the Mar-a-Lago documents, all this took place after he was president and so you don't run into some of those same questions about what the scope of presidential authority is and whether Trump could conceivably argue that his actions were actually within the scope of presidential authority that you saw Robert Mueller run into and that you also now are seeing hashed out when it comes to the January 6th investigation. In that sense, it's not hugely surprising to me that this case was charged first, even though the investigation began, of course, much later.

Brigid Bergin: We are talking about the latest indictment of President Trump. We have to take a short break, but lots more to talk about and your calls. Stick around.

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It is The Brian Lehrer Show on WNYC. I'm Brigid Bergin from the WNYC and Gothamist newsroom, filling in for Brian today. We're talking about the federal indictment of former President Donald Trump with Quinta Jurecic, a fellow in governance studies at the Brookings Institution, and a senior editor at Lawfare. Quinta, we were talking before the break about what this indictment says about other potential indictments facing the former president. I'm wondering if there's anything that this indictment tells us about the autonomy of Jack Smith's role within Merrick Garland's Justice Department.

Quinta Jurecic: It's a great question, and I think that there's a lot that we just don't know. I believe that if you look at the Special Counsel authorization, there is a possibility that Smith's actions could be reviewed by Garland. That he could, for example, decide not to make a decision about whether to charge on his own but that he could, say, take a memo overview of what decision that he might make to Garland and say, "What do you want us to do? We think that we should charge him. What do you want us to do?" I don't think we know if that's taken place here.

What that means is it is entirely possible that Smith is just acting on his own, and that, as you say, he really has a strong degree of autonomy here. I think that that would be consistent with what we might expect from Attorney General Garland, who said when he appointed Smith that he felt it was important that this decision be made in a way that not only was independent, and made with integrity, but that was understood by the public to be made with integrity, that this is really not a case of Garland being out to get somebody who might put his boss out of work, to frame it in the most crass possible terms. In that sense, I think that it certainly does indicate that there's a certain amount of freedom on Smith's part, although, like I said, we don't know for certain if this option was presented to Garland.

Brigid Bergin: It's interesting. Just to be clear, in this classified documents investigation, it had been based in Washington. A grand jury there was hearing from witnesses, evidence had been gathered. Is it possible that Trump could face charges there too in this case?

Quinta Jurecic: The question of where exactly this case was going to be brought has long been a really thorny one. That's because of something that is called venue, which is what lawyers use to describe essentially where a case can be brought. Defendants have a constitutional right to be tried in the location where the crime was committed. In the case of the Mar-a-Lago documents, you have a bit of a puzzle because there are two locations. There is Washington DC where the documents were loaded up, and where some folks who were talking to Trump were throughout this process, and then of course you have Mar-a-Lago where the documents actually were, and where Trump refused to hand information over to the Justice Department.

There has long been this question about how the Justice Department would choose to play it. I have read arguments, and I'll definitely say I'll show my own website, lawfareblog.com, where I work. We have some really great write-ups about hashing out the different venue issues. If you look at it one way, you could say, "Well, most of the conduct that seems to be at issue was in Mar-a-Lago in the Southern District of Florida." If you look at it another way, you could say, "Well, sure, that's definitely true, but it's also true that subpoenas were served on Trump's offices in DC, that if there is a conspiracy charge at work, which it seems like there may be that some of the actors who were involved in that conspiracy charge that they were in DC," and so you might have a hook to bring the case in Washington DC. Until recently, it really seemed like the government was going to go with DC, that this was being presented before a DC grand jury except then in the last few weeks, reports started to show up that prosecutors were actually beginning to read out evidence before a grand jury in the Southern District of Florida.

Now we know from Trump, so just according to Trump, but assuming that we can trust him on this, that he seems to think that this case will be brought in Miami, or at least that he will be arraigned in Miami, which suggests that the Justice Department really is planning to bring this case or at least Trump's portion of it perhaps, if it's a conspiracy case, there may be other indictments down the road as well, perhaps in Washington DC and in Florida, maybe because they decided that it's simply an easier case to make in terms of that venue issue.

Now, it does raise a lot of questions about how friendly is a Florida jury going to be? How friendly is a Florida judge going to be? There was some reporting this morning from ABC that the judge might be Judge Eileen Cannon, who presided over the initial round of back and forth between Trump and the Justice Department last year, and who I'm comfortable saying pretty dramatically mismanaged that case. All those questions pop up if you bring the case in Florida instead of in DC.

Brigid Bergin: Let's bring some of our callers back into the conversation. Diane in South Orange, New Jersey. Diane, welcome to WNYC.

Diane: Hi. The reason I called was it's been bothering me that all the Trump excuses keep saying that, "You know what Biden has documents, and then Obama has documents." They forget that Biden's documents were found by Biden and turned over and nobody else lied and said they wouldn't turn over or didn't have them. I think that Trump is the only one who actually refused to cooperate and lied about it. I think people have to remember that that's what this is about. It's not about the fact that he had the documents, was asked to return them and returned them. That would've let him off the hook, but he didn't.

Brigid Bergin: Diane, thank you so much for your call and for raising that. Quinta, I think Diane raises a really interesting point and we do hear some of that in the Republican reaction to the indictment this morning, pointing to the fact that this is something that other officials have done in the past, that this is not the first time classified documents have been found in the possession of someone who's no longer in the White House. Can you talk about the distinction between those cases and really the point that Diane was underscoring there?

Quinta Jurecic: I think that Diane makes a great point. It's really the key distinction between these cases is not just that classified documents were found where they shouldn't have been found. I know we've also heard that there had been a Justice Department investigation into former Vice President Mike Pence because classified documents showed up at his estate where they shouldn't have been. The Justice Department recently closed that case because as with everything we know about the Biden fact pattern, this is not a situation where either Biden or Pence tried to keep that information from the Justice Department. I believe certainly in the Pence case, I believe in the Biden case as well these are instances where staffers proactively identified the information and alerted the federal government.

Not a situation like Trump where they only handed over those documents under a subpoena and then even kept some still at Mar-a-Lago that had to be secured from a search warrant and that they only announced that those documents were there because the federal government came looking for them. That if you look at the Justice Department filings from this first round of litigation in 2022, like I mentioned, what's really striking about the Trump case is that again and again, he was given the opportunity to just hand this material back and he refuses. That I think is what is so damaging about this pattern of conduct exactly as Diane says, and that's what you don't see in the Pencer, or Biden situations.

Brigid Bergin: Let's take another caller. Ron in Suffern, New York. Ron, welcome to WNYC.

Ron: Hi there. Thanks for all your good work. I had a quick question and a slightly different theory on some of this, which might be that after listening to Trump's attorney yesterday or former attorney and then the fact that this went to the National Security Division, I'm wondering if there's any merit to the idea that potentially this information that Trump had had been caught up in our own intelligence stagnant, meaning that potentially that information was stolen and then by our spying technology being able to understand if that was caught up on the other side of things and that's why this has been so serious, not just the conduct that we've seen so far, but the fact that perhaps our adversaries have this information and we have knowledge of that. Do you think there's any merit to that idea?

Quinta Jurecic: It's typical that in a case that involves classified documents that the National Security Division of the Justice Department would get involved. That's what you'd expect to see here. It's definitely true that Jay Bratt's involvement, who's a higher-level attorney in that division signifies that DOJ is taking this really carefully. I don't think it's true or I should say we don't have any indication that this information was spread to adversaries of the United States or people who the US really wouldn't want to have it. That said, the caller is absolutely right that the possibility of that is why the Justice Department takes this stuff so seriously. If you look at some of the descriptions about where these documents were being held, it's in closets off Mar-a-Lago, it's in closets off a pool, there's indications that anybody could walk in Mar-a-Lago quite close to where that material was.

If you're the National Security Division, you can get really anxious about that because you can say exactly like the caller did, "Who might have access to this material that we don't know about?" We haven't seen any indication that that's happened, but the risk is exactly why the Department is taking this so seriously.

Brigid Bergin: So interesting. We're getting also some really interesting response from our listeners via text. Philomena from Westchester makes a bunch of good points. She wrote, "One of Trump's lawyers points out that some of the documents he had were copies as if that makes having documents less of an issue." She points out that Snowden and Chelsea Manning had copies, and, "I keep seeing quotes that Merrick Garland didn't sign off on the indictment. It wasn't for him to sign off on the indictment. According to Neal Katyal who wrote the special prosecutor rules, it was only for Garland to object if he objected to any of the particular charges in the indictment." That second point there, Quinta, do you agree or do you think she makes some points in either of those observations?

Quinta Jurecic: I think that that is right. Yes, that's referencing Neal Katyal who helped write the special counsel regulations under which Smith is operating and under which Mueller operated. Yes, I believe that it is correct that Garland could have stepped in if he wanted to. We don't have any indication that he did. Again, the fact that Garland made the decision to pass this case off to Smith shows you that he did not want to be involved in this. I think if you go back and look at his statement when he announced Smith's appointment, that that was very clear that this is not a situation-- Or rather, let me amend that. The Justice Department has done everything that it could here to make it seem like the department is not going after Trump for political reasons.

Now that doesn't mean that Trump and his allies won't make that argument anyway, but I think if you look at the facts that it is very clear that Garland is trying really, really hard not to have his hands on this at all.

Brigid Bergin: Anne in South Salem asks a question that I think many of us might be wondering about this case. Anne, welcome to WNYC. What's your question for Quinta?

Anne: Hi. Maybe this has been answered before, but I was sitting here and thinking, what was the main objective for him keeping these papers? Was this personal pleasure so he could say, "Ha ha ha," a passive-aggressive way of getting back at whoever because he's known to do that, or was there more involved in this? Just, I'm curious.

Brigid Bergin: We know you may not know the exact answer to that Quinta, but just a sense of what would motivate someone to take and hold on to these types of documents?

Quinta Jurecic: It's a fantastic question, and I don't think anybody knows the answer to be completely honest because I agree, if it's just the pleasure of having them, it seems high-risk. If you're going to have a collection, maybe collect something that's not going to get you hit with federal charges. I think that there's been some reporting recently that Smith has been looking into Trump's business deals with foreign governments, with folks around the globe, which suggests that perhaps Smith may be looking into the question of whether Trump was trying to hold on to sensitive information to sell it out to other folks, to use it as a bargaining chip in his business. We don't know if that's the case.

There's also been some reporting about a tape of Trump talking about a document that he admits was still classified after he left office, where he essentially is pointing to it to try to argue against something that his former Joint Chiefs of Staff, the current Chief of Staff, Mark Milley, had said regarding a war with Iran, and that Trump is pointing to this document that he's held onto to say, "See. This just shows that Milley is lying." Maybe that shows that he's been holding on to these documents because he feels like they give him one up over his critics, or it could just be he feels like they're his. I don't have the quotes in front of me right now, but I remember when this first happened, there's some indication of him saying to folks that he felt like these documents belong to him, that they were his.

They did not belong to the US government, that he felt ownership over them, and so he took them because he felt like he could. It may be as simple as that. Now, that's somewhat absurd given that-- again, usually, if you take something that you think is yours, even if you don't really have a claim to it, you're probably now putting yourself at risk of federal espionage charges, but I just don't think we know. We may find out more over the course of the trial, we may not, but I think as with so many things with Trump, it just comes down to his unique psychology.

Brigid Bergin: Interesting. I have a couple of logistics questions, and then one more caller who has been waiting patiently with a question that I think we will all be interested in hearing the answer to. Just in terms of logistics, Quinta, when Trump faced charges here in New York, it was just this extraordinary media circus outside the courthouse. Have you seen any reports on the kind of security measures that are going to be in place outside of the courthouse in Miami next week? We know that the federal courthouse in Lower Manhattan has high-profile trials on a regular basis, this is also a federal courthouse, but is this the type of place where we could see the circus coming to town again?

Quinta Jurecic: I haven't seen any reporting along those lines, but that would not surprise me at all. I think we saw after the search of Mar-a-Lago initially took place there were threats made against the FBI. There was at least one threat or attack that someone tried to carry out against an FBI building. We know that there really is a risk of violence here. Of course, anywhere that you have any former president somewhere, there's going to be a lot of security, there's going to be Secret Service, and so I would definitely expect pretty much the same kind of zoo that we saw in Manhattan.

Brigid Bergin: What are the likely next steps when Trump appears next week?

Quinta Jurecic: He will be arraigned. He'll go in front of the judge. Presumably, he is going to plead not guilty. One only guesses based on his Truth Social posts. The indictment will be unsealed. We'll all be able to take a look through it and figure out which way is up and what we make of those charges. Then it's going to be a slow process where there's going to be a long, long pretrial litigation period before we actually get to the trial itself. I wouldn't be expecting-- this is not something that's going to go to trial next week or next month. If you think of the Manhattan case, I think that the next hearing for that case was scheduled in December or something. It might optimistically go to trial in March. I'm not sure how quickly the Southern District of Florida tends to do things, but again, we are looking at a long, long road ahead here, probably with a lot of back and forth as Trump tries to fight the Justice Department on everything that he possibly can.

Brigid Bergin: Our final question is going to go to a very patient caller. TJ in Manhattan, thank you for calling and thank you for waiting. Can you ask your question to Quinta about what this means going forward?

TJ: Yes. Good morning, Quinta. The question I have for you is hypothetical. The trial of Trump will be during the presidential campaign. Number one, can he run for president while he being on trial? Second, if he found guilty and he goes to prison, can he still run and pardon himself?

Quinta Jurecic: Excellent questions. Eugene V. Debs, who was a socialist, ran for president from prison in 1920. He did not win. There is some precedent for that, and there's no reason to think that Trump wouldn't be able to run for president even if he is found guilty. Now, I don't think we would actually expect him to be physically in jail at that point because there will be a lot more to happen over in terms of the sentencing, that kind of thing, but yes, it could happen. In terms of what happens if he wins the presidency, then we're in uncharted territory. I think that there's been some suggestion of what happens if he's serving as president from jail. He has Secret Service agents in the jail, maybe, with him. You could spin up all kinds of crazy hypotheticals.

I don't think there's any reason to think that he-- well, there's a broader question about whether or not the president can pardon himself, and whether that would be constitutional. Usually, that's thought of in a prospective way. Could the president-- when Trump was leaving office, we were maybe expecting him to potentially pardon himself for his conduct around January 6th. That didn't happen. There's both the question of can the president pardon himself period, and can the president pardon himself retrospectively. Those are open questions. We would have to see if he takes that step, and if he does take that step, perhaps fight it out in the courts. Like I said, we're really in uncharted territory here.

Brigid Bergin: Uncharted territory, for sure. We've gone far down a hypothetical path that I think will keep my wheels turning for many hours after the show. I want to thank my guest, Quinta Jurecic, a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. Quinta, thank you so much for joining us today.

Quinta Jurecic: Thank you for having me.

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