Trump Was Just Laid Baier

Image courtesy of Fox

Fox anchor Bret Baier did something unexpected on Monday night: He eviscerated Donald Trump. In a wide-ranging first part of a two-part interview, Baier surprised critics by actually asking hard-hitting questions of the former president, which Trump then stumbled over badly. In response, Trump produced word salads, non sequiturs, deflections, and, importantly, some key admissions that could expose him further in his federal criminal case, now pending in the Southern District of Florida.

It’s that last bit I want to focus on today, particularly with respect to two questions Baier asked. These led Trump to appear to confess to obstruction of justice and violations of the Espionage Act.

Let’s dissect what happened.

Why not just hand them over?

A key difference between Trump’s case and that of every other top government official found with classified documents—namely Hillary Clinton, Joe Biden and Mike Pence—is that when the government asked for cooperation and the return of the inadvertently retained documents, the others readily complied, but Trump did not.

On this question, Trump began by doubling down on his claim that the boxes and everything in them were his by right:

I have every right to have those boxes. This is purely a Presidential Records Act. This is not a criminal thing. In fact, the New York Times had a story just the other day, that the only way NARA could ever get this stuff, this back, would be, “Please, please, please, could we have it back?”

Trump appears to be, once again, confusing a claim under the Presidential Records Act with a charge under the Espionage Act. The former is not at issue in this case, but the latter most certainly is. 

This position builds upon the bad advice Trump received from Judicial Watch’s Tom Fitton, who is not actually a lawyer. Fitton told Trump to fight NARA and the Justice Department on their requests for the return of documents on the ground that they were his documents and not the government’s. This advice was just plain wrong, but it fit what Trump wanted to do, so he followed it. Fitton appears not to have learned anything, tweeting to his millions of followers about Trump’s above interview statement, “Fact check: True.” 

(Narrator: It was not true.)

That first statement by Trump led to this exchange between Baier and Trump. Note the part at the end (emphasis mine).

Baier: And they asked for them.

Trump: Because they have no— we were talking.

Baier: They did ask for it.

Trump: No!

Baier: And they said, “Can you give us the documents back?”—

Trump: — I gave them some, and we were talking —

Baier: And then they said, they went to DOJ to subpoena you to get the documents

Trump: —which they’ve never done before —

Baier: Right —

Trump: — and in all fairness—

Baier: Why not just hand them over then?

Trump: Because I had boxes. I want to go through the boxes and get all my personal things out. I don’t want to hand that over to NARA yet, and I was very busy, as you’ve sort of seen.

As law professor Orin Kerr at U.C. Berkeley noted, “‘I don’t want to hand that over’ is not, to my knowledge, a legal defense.” Trump is admitting here that he had the documents but he just didn’t want to cooperate in returning them. That is obstruction, open and shut. 

And if you’re wondering, yes, this is an admission, similar to other public statements Trump has made, that would be admissible in court against him. It could come in either because it’s a statement by a party in interest, in this case the defendant, or to impeach him if Trump takes the stand to offer some other explanation.

Baier then pressed on the question of obstruction and Trump’s efforts to hide the documents from his own lawyers.

Baier: Yeah, but according to the indictment you then tell this aide to move [the boxes] to other locations after telling your lawyers to say you’d fully complied with the subpoena when you hadn’t.

Trump: Right. Before I send boxes over, I have to take all of my things out. These boxes were interspersed with all sorts of things, uh, golf shirts, clothing, pants, shoes, there were many things. I would say much —

Baier: Iran war plans?

Trump: Much—not that I know of. Not that I know of. But everything was declassified, and Biden didn’t have the right to do that because he wasn’t president. Nor did Mike Pence by the way because he wasn’t president.

Again, Trump does not deny that he told Walt Nauta to move the boxes. He instead attempts to explain why he was obstructing, not whether he had obstructed. But even at face value, the desire to remove your personal effects from boxes that also contain the nation’s top military secrets, and that being the reason you hid the truth and the documents from your own attorney, is neither a defense to obstruction of justice nor to the Espionage Act. In fact, it is an admission as to both.

Why did you have it?

There was another legal bombshell admission during the interview. The indictment refers to an incident in the summer of 2021 when Trump was in a meeting discussing a secret war plan for Iran and appeared to show it to them. The indictment reads, at Page 3,

In July 2021, at Trump National Golf Club in Bedminster, New Jersey (“The Bedminster Club”), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a “plan of attack” that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was “highly confidential” and “secret.” TRUMP also said, “as president I could have declassified it,” and, “Now I can’t, you know, but this is still a secret.”

Baier asked Trump directly about his possession of this item. His response is telling (emphasis mine):

Baier: Why did you have this very sensitive, national security defense document, like the war plans for a strike on Iran?

Trump: So, like every other president, I take things out. And in my case I took it out pretty much in a hurry, but people packed it up, and we left. And I had clothing in there, I had all sorts of personal items in there, much, much stuff.

But as to this document, when Baier pressed on the specifics, Trump floated a new but rather risky defense: “There was no document,” he declared. He elaborated on what appears to be a blatant lie that contradicts the audio on the tape recording of the meeting, but he has trouble getting his story straight, so he hedges his answer:

That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn’t have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.

(Emphasis again mine.)

When Baier noted there were other people in the room, Trump shifted to impugn the integrity of the Justice Department. “These people were very dishonest people. They’re thugs.” Notably, Trump did not dispute the account of the others present, whom the Justice Department has undoubtedly interviewed and who very likely testified before the grand jury, either in Washington or elsewhere. Those individuals likely confirmed the fact that there was indeed a document and that Trump was referring to it and its contents to people unauthorized to hear about or see it.

No wonder they quit

Trump is a defense lawyer’s worst nightmare. He is a client who insists on talking, racking up the public admissions that are increasingly harder to explain away. Trump’s decision to go ahead with town halls and one-on-one interviews, where the question of his willful retention of national defense information and obstruction of justice would certainly come up, may have played a part in the departure of his top lawyers post-indictment.

It appears Trump continues to follow the misguided and now legally irrelevant advice of Tom Fitton, who is a big, opinionated man Trump seems to admire, but who gets the law badly wrong at every step. Every time Trump talks about the Presidential Records Act, which has nothing to do with this case, it’s hard not to hear Fitton’s whispers in his ear.

It isn’t clear why Trump’s new lawyers let him go forward with the interview. Perhaps they couldn’t stop him, or perhaps they thought it would be a softball set of questions like Trump has received from other Fox hosts. Why Baier decided to take the gloves off and go in on Trump also isn’t entirely clear. From where I sit, it’s likely that Fox has run the numbers and realizes that Trump will lose badly in 2024, possibly dragging the entire GOP down with him. Fox would rather see him dethroned from the top of the primary contenders pile than face an electoral wipe-out.

Trump won’t get taken down by a single interview, but each blow is a further dent in his armor, and they are coming fast and frequently of late. Trump probably doesn’t have the self-awareness to realize how badly he is hurting his own defense, or maybe he doesn’t care and is betting on winning the White House. Or perhaps he is counting on pulling at least one juror in South Florida willing to nullify the law, as a way out of his legal jeopardy.

It’s a high risk move and this admissions are big, unforced errors, but it seems Trump simply will continue to spout off and doesn’t believe what he says publicly will ever matter in court. 

Special Counsel Jack Smith knows better.