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Washington Wednesday: Political obstruction of justice

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WORLD Radio - Washington Wednesday: Political obstruction of justice

Donald Trump faces a federal trial over mishandling national defense documents while Republicans draw attention to alleged misbehavior of the Biden family


Former President Donald Trump speaking at Trump National Golf Club in Bedminster, N.J., June 13, 2023 The Associated Press/Photo by Mary Altaffer

MARY REICHARD, HOST: It’s Wednesday, June 14th, 2023. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

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Because it is time for Washington Wednesday. Today, legal peril for a former president, and maybe the current president.

Former President Trump was arraigned in a Miami courtroom yesterday. He faces dozens of felony charges around possession and handling of classified documents.

In total: 31 charges under the Espionage Act and six more charges for impeding an investigation.

REICHARD: At the same time, House Republicans are digging into allegations that President Biden was involved in a $10 million dollar bribery scheme during his time as vice president.

We will focus largely today on Trump’s legal woes as that case is currently unfolding.

EICHER: But first, let’s turn back the clock to the Clinton email scandal. In 2016, then-FBI Director James Comey held a press conference. He revealed that more than 50 email chains on a private server Hillary Clinton set up in her home contained classified information, including 8 chains with top secret information. But then he added this:

JAMES COMEY: 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.

With Trump now indicted, Republicans say there is a double standard here.

Joining us now to talk about it is Bobby Higdon. He is a lawyer in private practice in Raleigh, North Carolina. He’s the former U-S Attorney for the Eastern District of North Carolina and before that, 24 years as Assistant U.S. Attorney.

REICHARD: Bobby, good morning!

BOBBY HIGDON, GUEST: Good morning, Mary. Thank you.

REICHARD: Well, you were a federal prosecutor for many, many years. Do you agree with James Comey's assessment that no reasonable prosecutor would have brought a case against Hillary Clinton? And do you think there is a double standard on display here?

HIGDON: Well, I think there is a double standard. But let me back up to the first part of your question. I don't know whether I agree with Mr. Comey or not. Mr. Comey was leading an investigative agency. They don't make decisions about whether individuals get prosecuted. And that's where I begin with my concerns about any type of double standard is the FBI does not make decisions about prosecutions, prosecutors do that. Assistant United States Attorneys and federal prosecutors make those decisions. And so that case was handled inappropriately from the get-go because the investigative agency was the one announcing the decision with respect to prosecution or non prosecution. So the inconsistency begins there.

REICHARD: I see. Some experts who analyze this case say two things make it different from other officials who wrongly possessed classified documents. First is that Trump is reportedly on record as having shown a classified document to somebody after leaving office, and then clearly stating that he knew it had not been declassified. And he reportedly said, quoting here, "As President, I could have this declassified. But now I can't." So how big of a problem might that be for Trump in this case?

HIGDON: Well, you know, it's not clear to me that the the ability to to classify or de-classify is going to be all that relevant to the case. So what he's charged with is the willful retention of National Defense Information. Now, there is some language in that statute regarding that the possessor in this case, President Trump, had reason to believe that the information could be used to the injury of the US. But it doesn't really revolve around the classification. It revolves around it being Defense Information and failing to turn it over to officials that are responsible for keeping those records when asked to do so. And so it's a fairly narrow charge. And it's not clear to me whether it's going to turn on classification, rather than just the content of the of the documents.

REICHARD: Well, another difference here, according to prosecutors, we haven't heard the defense yet, is obstruction of justice. The indictment says that upon receiving a subpoena for government records that Trump told his lawyers, "I don't want anybody looking through my boxes," and added, "Wouldn't it be better if we just told them we don't have anything here?" Now, based on what we know, what's the legal peril with regard to obstruction of justice charges?

HIGDON: Well, obstruction of justice charges are not uncommon. This is something that prosecutors bring frequently, and it revolves around any effort to alter the testimony of witnesses to alter documents, the integrity of documents or to alter the availability of evidence. In other words, encouraging someone to withhold evidence, to lie about the evidence, to suggest it's not available that you don't have it, can all be the basis for an obstruction charge. The prosecutors in this case have laid out a pretty detailed, factual summary of what they believe that they'll be able to prove in court. And if they're able to prove that I think there's cause for concern.

REICHARD: Trump may also soon face charges of alleged election interference in Georgia. How long do you think that will take for those cases to be resolved? Is there a chance that we won't even have a verdict until after the Republican nomination or even after election day next year?

HIGDON: Well, it's hard to know with respect to the Georgia case, because that hasn't been charged yet, but when you're looking at the federal indictment in Florida, the case is now on a clock. We don't know exactly how fast the clock is ticking. But there are certain indicators in the law that give us some idea. You know, what will happen next is that, of course, the President appeared yesterday for his arraignment where he entered a plea of not guilty. That then begins the trial process, which starts with the exchange of discovery information, the prosecutor will be required to show the President and his attorneys all of the information that they have, that they'll use to prove up their case: witness statements, documents, any other types of evidence that they have, recordings, whatever those may be. And there'll be a period of weeks to months where that information is exchanged largely on a one way basis. There'll also be a timetable for motions practice. And I'm sure there will be a number of motions filed by the President's attorneys with respect to constitutional issues, evidentiary issues and any claims that they may have of misconduct by anyone involved in the investigation. The combination of those things is likely to take months. I could imagine that a federal trial would occur sometime early to mid next year. So you're right. It may occur right in the middle of an ongoing election where the President, the former president, is the leading Republican candidate right now.

REICHARD: All right, well, let's move on to the accusations against President Biden, now. Republicans on the House Oversight Committee have subpoenaed an FBI 1023 document. It is not classified, but FBI director Christopher Wray, says they can't hand it over without endangering informants or the integrity of the Bureau's investigations. Explain to us if you would what this 1023 document is, and what it reveals according to those who have seen it.

HIGDON: Well, these numbers are assigned---they're the form numbers that correspond with the type of document the FBI is using, and it has meaning to it. But I think what you want to focus on is what the director is saying. And this is not an uncommon thing, when they believe that it'll be a risk to witnesses or will reveal techniques and the manner of investigations, the FBI will often withhold that information, where they believe it's likely to get out into the public sphere. And of course, they're always concerned whenever they have to share it beyond their own body of agents or beyond prosecutors that that may happen. So that's what they're saying. I have no idea whether that's a legitimate claim or not, obviously, members of Congress are taking issue with that without knowing what the information is. It's hard to know. But that's why they're saying that in response to the request of members of Congress.

REICHARD: We know that President Biden and his son deserve the presumption of innocence. But if the accusations are true, what laws might have been broken here?

HIGDON: Well, again, I can only go on what I what I know from the public record and what what I understand the claim to be, but it would sound to me as if the claim is one of bribery, that in return for payments and other actions, I the president current President, I'm willing to take certain actions on your behalf, or to decline to take certain actions on your behalf, that's that's sort of a classic bribery case. If the public record or public reports are to be accurate, but you know, of course, we don't know, because we don't know what the evidence is that's contained in those reports, or what other evidence that the FBI or other investigators may have.

REICHARD: Do you think it would be appropriate to have a special counsel investigate the matter?

HIGDON: I do. Anytime that you're asking prosecutors to investigate their boss, and let's be clear, that's exactly what this is, when you have the FBI and the Justice Department involved, you're talking about agencies that work for the President of the United States. So it's in the, it's in the chain of reporting and so that's sort of to me classic when you would appoint someone from the outside, i.e. a special prosecutor, to come in and review the matter and prosecute it if appropriate.

REICHARD: Bobby Higdon is a former federal prosecutor now in private practice in North Carolina. Thank you so much, appreciate your time.

HIGDON: Thank you, Mary.


WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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