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Making sense of Trump's current legal troubles

MARY LOUISE KELLY, HOST:

You could be forgiven this week for wondering if you have wandered into a time warp. By which I mean, pick up a newspaper, turn on cable news - once again, it seems every headline is about Donald Trump. There's the hullabaloo over the FBI search of Mar-a-Lago. That was Monday. In a totally separate development, the former president was supposed to testify under oath today, facing questions from the New York attorney general. He took the Fifth and declined to answer. And that barely scratches the surface of all the legal headaches that Trump is facing.

Here to walk us through the many investigations underway is Barbara McQuade, professor at University of Michigan Law School and a former U.S. attorney. She was appointed by then-President Obama. Welcome.

BARBARA MCQUADE: Thanks very much, Mary Louise.

KELLY: Let's start with the Mar-a-Lago search by the FBI on Monday. What question or questions are top of mind for you there?

MCQUADE: Well, I think what we don't know is what crime was used as the basis for that search warrant. We don't know that yet. Was it something as serious as the Espionage Act? Was it simply retention of government documents? Will Donald Trump be charged with a crime, or did the government simply want to get its documents back? I think all of those questions will come out eventually. But until then, it really raises more questions probably than it answers.

KELLY: Yeah. Meanwhile, today, I mentioned Trump took the Fifth, answered no questions. This is in the fraud investigation led by New York Attorney General Letitia James. Where does that leave things?

MCQUADE: You know, this is actually a smart decision. You know, Donald Trump has famously said, only mobsters take the Fifth, criminals take the Fifth, etc. But when push came to shove, he did it himself. And it's really the best advice, I think, under the circumstances because we know that in addition to Letitia James's civil investigation, meanwhile, the Manhattan district attorney's office has also been looking into some of the same issues for criminal fraud. And so if Donald Trump were to make statements in this civil case, those statements could be used against him even in a criminal case.

And it may be that the attorney general's office anticipated this is what would happen. And now they can move on and assess the strength of their case. And it could be that they file a civil case for civil fraud here based on tax claims, and it may be they can prove it even without his answers to the questions.

KELLY: Meanwhile - we've got a lot of meanwhiles here - but meanwhile, down in Georgia, there's a special grand jury investigating Trump's effort to overturn that state's election results. Rudy Giuliani, the president's former lawyer, has just been ordered by a Fulton County judge to testify. That's supposed to happen next week. There has been some discussion over whether local District Attorney Fani Willis might be more free to charge a former president than her federal counterparts. What do you think?

MCQUADE: Yeah, I don't know if the question about - the should charge question is any different whether you're a state prosecutor or a federal prosecutor. But in terms of can she charge, I think that we may see charges there more quickly than we see federal charges. And that's for two reasons. One is that the scope of her investigation is just much smaller. She only has to focus on the conduct relating to Georgia, not the entire United States and the seven states involved in the fake elector scheme.

KELLY: Sure.

MCQUADE: But the other is it appears that she's moving at a rapid clip. We have more visibility into what she's doing because she has to get a court order to bring subpoenas against witnesses who are out of state. And so we've seen who she's calling before the grand jury, whereas in the federal system, what occurs in the grand jury is secret. But I think there's just less bureaucracy for her to work through. She gets to make the decision. She's not, you know, sent seven layers of review. And so I think for both of those reasons, it may be more likely that she files charges than that we see federal charges.

KELLY: Meanwhile - another meanwhile - here in Washington, there's of course the congressional committee investigating January 6. They are paused for summer recess, but they're not done. And then a parallel investigation being conducted by the Justice Department into the events of January 6 - they have subpoenaed, among others, Pat Cipollone, former President Trump's White House counsel. What's the status of this one?

MCQUADE: Yeah, you know, I think they are going to have to either negotiate or litigate his claims of attorney-client and executive privilege. But ultimately, the law favors the Justice Department getting his testimony. When he went before the January 6 committee, the committee, I think, was willing to take half a loaf. They negotiated with him to get timely testimony, willing to give up certain areas in exchange for certain areas that they were interested in. But I think the Justice Department will insist on all of it. And I think they'll litigate it. And if they do, I think they'll win. And they'll be able to get his testimony. And that could be really important. I think the only other person who might know more about Trump's role in all of the January 6 activities is Mark Meadows.

KELLY: His former chief of staff.

MCQUADE: Yes. I think we'll have to wait to see whether he is a defendant, a witness or neither. So at some point, Merrick Garland is going to have to make a decision about charging. I don't anticipate that will be before the midterm elections. I think there's just too much work to do. But I think in the early part through mid-part of 2023, he's going to have to make a decision whether to charge or decline to bring charges.

KELLY: So the former president is keeping his lawyers busy, to put it mildly. If you were an attorney for Donald Trump, which, if any, of these probes would be keeping you awake at night?

MCQUADE: I think in the short term, the Georgia probe because I think that's the one that's most likely to result in charges in the short term. Also, you know, this takes a lot of steps to get there, but if Donald Trump is elected president again and takes office in 2025, he could pardon himself for a federal offense. He can't pardon himself for a state court offense in Georgia. So I think that's the one that I'd be keeping my eye on, at least for the moment.

KELLY: You just teed up my next question. Any of this effectively able to stop him from launching another White House bid?

MCQUADE: I don't think so. You know, there's been some talk this week that one of the charges, 18 U.S.C. Section 2071, has a provision in it for someone who wrongfully retains government documents shall be disqualified from serving in future federal office. But I can't imagine that that would pass constitutional muster when it comes to the president. That office, the qualifications are defined by the Constitution. I don't think you can use a statute to supersede that. So I don't think so. I think we could have this very unusual situation where someone could be charged and simultaneously running for president.

KELLY: University of Michigan Law School professor Barbara McQuade. Thank you so much.

MCQUADE: Thank you, Mary Louise. Transcript provided by NPR, Copyright NPR.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
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Ashley Brown is a senior editor for All Things Considered.