♪ folly: donald trump is heard on tape discussing classified documents. it's a crucial piece of evidence in a federal investigation into his handling of sensitive documents. so, how will this affect the case and the republican race for the white house? this is "inside story." ♪ hello and welcome to the program. i'm folly bah thibault. it's a 2-minute recording that could prove devastating for donald trump.

pres. trump: he said that i wanted to attack iran. isn't it amazing? i have a big pile of papers that say that. folly: media outlets anita: have obtained recording in which the president appears to acknowledge keeping classified documents after leaving office. it was reportedly made in july of 2021. the documents apparently referred her a possible attack on iran. trump is facing 37 federal charges of classified documents. he has plead not guilty. so how damaging is this recording, and will it affect next year's presidential race? we will put these questions to our guests in just a moment, but first, this report from our white house correspondent. >> >> ♪ and i want forget ♪ meaning in his first public remarks since the release of a controversial audio recording, donald trump lashed out

at those investigating him for allegedly removing classified documents from the white house. >> this stuff doesn't hold up and people know it. this is a continuation of the greatest witchhunt of all time, that is all that is. and its primary purpose is election interference. and we are not going to let this election be stolen from us. reporter: the former president made the remarks well campaigning in new hampshire on tuesday. in the new audio recorded during a 2021 interview at his new jersey golf course, trump appears to show classified materials to aides and a writer working on a member, about a pentagon plan for a u.s. attack on iran presented to him by the chairman of the joint chiefs of staff, mark milley. trump was president. >> with milley, let me show you

an example, he said that i wanted to attack iran. which, isn't it amazing? i have a big pile of papers and this thing just came up -- look. this was him. they presented me this. this is off the record, but they presented me this. this was him. this was the defense department and him. isn't that amazing? this totally wins my case, you know, except it is, like, highly confidential. [laughter] there says secret information. reporter: the u.s. justice department charged trump with 37 counts of mishandling top-secret documents the audio seems to counter trump's claim dozens of boxes found last year at his mar-a-lago estate were just newspaper clippings. prosecutors say, many of those documents were instead highly classified. the recording may also prove the government's case that trump did not declassify the material as he should have, while in

office. >> this was done by the military and given to me. i think we could -- yeah. >> will have to see. pres. trump: declassify it. if i was president i could have declassified it. now i can't. [laughter] reporter: former president trump is currently awaiting trial. he has pleaded not guilty to the charges. his trial date is set for august, prosecutors are pushing to have the date moved to the end of the year. folly: trumps legal issues extend well beyond this case. in march, he became the first former president to face criminal charges, after he was indicted for falsifying business records. it was in connection with the payoff he made to the point star , stormy daniels. one of the biggest cases is the justice department's investigation into trump's role in encouraging a violent attack

of the capitol in january, 2021. the case includes his efforts to overturn the results of the 2020 election. and there is the georgia investigation which focuses on trump's reported attempt to have officials there alter the results of the state's 2020 presidential vote. ♪ folly: let's bring in our guests for today show. in washington dc, john markham, vice president of the institute for constitutional government at the heritage foundation. he is also a former u.s. federal prosecutor. in birmingham in the u.k., scott lucas, professor at the clinton institute university college dublin. also in washington, d.c., bruce fein, a former u.s. soc deputy attorney general and constitutional lawyer. gentlemen, welcome to "inside story." thank you very much for joining us. bruce, let me start with you. former president trump has always said that the documents he took with him from the white house were declassified but this

published audio recording appears to contradict this. how damning is this and is this a nail in the case against trump? guest: i think it is an exaggeration to point to just one piece of evidence as a conclusion. the burden is on the prosecutor to prove beyond a reasonable doubt. this certainly undercuts the president's former claim. he could maintain that he could just think about declassify a document in his head and it became declassified by magic. at least the tape, if it is authentic, suggests that he knew that he would need to do certain things in a formal way to declassify a document and he hadn't done it, at least with regard to this document concerning a potential attack on iran. so this is not helpful to mister trump. i think it may force him to consider testifying, which he probably does not want to do, to try to undermine its impact.

but i wouldn't say it makes it a slamdunk. folly: bruce, is it clear from the indictment, if the documents referenced in the recording are the ones recovered by the investigators? guest: the indictment parallels exactly what you played, in terms of putting in transcript and written form, the exchange. especially when it is too late to declassify. so there is a parallel there which would lend authenticity to the audio that we listened to. but you have a trial so that the other side can cross-examine. you never take anything at face value. folly: john malcolm, what was your reaction when he heard this recording? does it tell you anything you didn't know already? guest: no, it doesn't tell me anything i didn't know already because that transcript is contained in paragraph 34 of jack smith's indictment that is pending down in florida. but just as a picture is worth 1000 words, and audio recording

has more of an impact in reading a transcript on camera. it also leaves open, i the possibility that jack smith could indict former president trump for disclosing classified information to a person who did not have the requisite clearances. and he could do that in new jersey since the exchange took place in his resort in bedminster, new jersey. i think if he was going to do that, he would have done it already. i agree with bruce, these are allegations. the former president has taken a scattershot approach. he said he had the right to keep them under the presidential records act. each of these incidents of evidence puts a chain contact defense. folly: he says in the tape, it is so cool that he has those classified documents -- his words -- why did he do it, you think? was it just about showing off? guest: i have no idea.

there are stories out there cons that he had a right to have these documents under the presidential records act. maybe he did it because he wanted to confront people who were saying bad things about him, which is what he appears to be doing in the tape that you just played. there could be a mirrored of reasons why he kept them and should not have. folly: scott lucas, your thoughts about the tape, how damning is it? guest: i agree with john and bruce that it doesn't change the case. the existence of this tape became known at the end of may, more than one week after trump was indicted. but on the political front, this amplifies, as it were, the indictment. it amplifies the seriousness of it, and it does cause a real problem for donald trump's public defense which has varied

very trump -- oh the fbi planted the documents, i didn't know the documents were there." and then, of course,, d idea that he could declassify them either with a signature or in his mind. that is gone now. what i find most interesting about this is is the context of this case. because this document was one of the most sensitive in the u.s government. it was about u.s war plans on iran. why would donald trump release u.s war plans on iran to a writer or a publisher as well as to staff who are in the room? it was because he wanted to score a point against the current and then chairman of the joint chiefs of staff mark milliy. donald trump, who had a series of grievances with, what i'd -- with milley wanted to make milley look bad, and make them

look like a warmonger on iran and portray trump as the sensible, responsible statesman who had avoided war. folly: trump has said in the past that he could shoot someone on fifth avenue and no one would care. is this a case with this recording, do you think his followers or his supporters will care about guest: there are some people who come hell or high water, have stopped with donald trump throughout his years as a candidate, as president, even to the point where he allegedly incited the capitol attack in january of 2020i don't think it shakes either of those folks. but there are a lot of americans who are in one of those two camps and i think what this does is, it sort of blows away the initial defense of trump supporters, which is, there is nothing to see here, let's move along, let's talk about other issues.

it highlights the fact that now, this is a serious issue. this is not just a court case. this is a court case about leaking documents, and not just about leaking documents, it is about leaking top-secret documents which are vital to america's national security . folly:bruce, what do you think his defense will sit in all of this, can the defense come up with anything to counter this evidence? guest: it is difficult. just talking about this one count -- we're talking about an indictment that alleges he does let's put the obstruction of justice aside for a moment. what can his defense say? you can say he didn't have any reason to believe that he could be adversely prejudicial to the interests of the united states. in fact, and i have written about this, my view is that, and i don't know whether you take the issue that you can make an

arguable case that the espionage act is overbroad under the first amendment because you don't have to prove there was actual injury or impairment to the national security of the united states . just that there was a reason to believe that it might happen. it is a standard of actual injury that was established in the pentagon papers case, in "new york times" versus united states. so you could challenge the constitutionality of the espionage act under the first amendment. he has never suggested that he would do that. in the past, he praised the espionage act will apply to others. but i believe that it's his best defense. otherwise, you don't have to under the fifth amendment to have any defense, just tell the prosecutors they have to prove beyond a reasonable doubt that i had reason to believe this would be damaging to the interest of the united states and i shared it with people not authorized . it is not the strongest case in the world if you are not taking your own defense, but he might do that. folly: john, do you agree?

how do you prepare a defense when it is right there on tape? guest: certainly that different bruce talked about is one that he is likely to raise. he has also talked extensively about the presidential records act and his belief that he had a right to have those documents , this is an audio tape, not a videotape. he could argue that, "i alluded to the documents but i didn't actually show the documents." the one thing where i disagree with bruce, i agree that anytime a defendant takes the stand, it is a very, very risky proposition. but this is donald trump we are talking about. i think it will be extremely difficult to keep him off of the stand. he will want to tell his story. folly: bruce, do will take the stand? guest: he could try to extrapolate from the track record. we know he did not take the stand in the civil case brought by e. jean carroll, on sexual assault issue. we know that his attorney, john

dowd, and i knew john when i was at the justice department, told trump, i am never going to let you be deposed by mueller -- openly -- because you will destroy yourself. his lawyers had urged him not to testify and he hasn't done so. on the other hand, he has been subject to depositions before. my view is his lawyers will urge him not to testify, but he may decide he will testify anyway. he thinks he can sway the jury. you can see how he performed on the cnn town hall interview, kind of barging through the interrogator. but i think it is very, very risky. but at this stage, you got to take risks, given the substantial laws he is confronting. folly: scott lucas, let's talk about the political implications of this. this is not the first case against donald trump, there are other cases -- the hush-money payments case, the january 6 insurrection investigation. the republican presidential

candidates, except for chris christie, perhaps, have largely defended donald trump, and criticized jack smith. can this be the opening, perhaps , for some of the republicans to change their tune on this? guest: we could ask them, but unfortunately, they are not here. so let's talk about the record today. remember, it's not just the case of trump being under indictment. i mean, the fact is that the trump organization was convicted in 2022 in new york state over business malpractice. there are pending cases in new york state regarding fraud. ed tax matters associated with trump. and of course, there was the conviction on sexual assault of e. jean carroll in the 1990's, with trump being ordered to pay out $5 million. so that is a lengthy, lengthy, lengthy legal record that he's compiled. that said, what you have seen so far from the republican

candidates, you have seen ron desantis, the florida governor, who is trying to ouout-trump trump. he is trying to take up fairly extreme positions and went over the trump voters. so he's probably not going to go after trump. folly: why are they so reluctant? why is something like ron desantis so reluctant to go after trump? guest: because the republican politicians are being held hostage by donald trump in the perception that trump voters are still a significant part of the republican constituency, and so if they alienate trump voters, they don't have a hope in the primaries next year. it's as simple as that. it's the reason why mike pence , even though donald trump was willing to let mike pence be attacked on january the 6th, 2021 did nothing to get him out of that predicament during the capitol attack. why mike pence has been loathe to come out against trump. it's why other candidates have tried to avoid comment on these legal matters. except for, you know, to chris

christie who has come from a slightly different background in the way that his campaign tactics work. i will refer you to something which happened a couple of years ago which is still striking to me, at a time when donald trump had survived the second impeachment trial and was not convicted, but at a time when even mitch mcconnell, senate majority leader, was saying that courts must hold him to account, kevin mccarthy, current republican house speaker, initially criticized trump over the capitol attack. within two weeks he went to florida and he pledged allegiance to trump. i think you will see other candidates who think, do i stand up against trump or do i not necessarily bow down before him, take a pass on this? they go further latter, because they think that trump votes in certain states is more essential to their chances of advancing. folly: john malcolm, your thoughts. why do some republican candidates want to take a pass on this, and does it have an impact on the republican primary? aren't republicans fearful that if trump represents them, they might lose the house and senate in the next election?

guest: first of all, joe biden is himself vulnerable. there are a majority of people across political parties that think he is too old and should not run. i agree with a lot of what scott said. the other thing i would say is that donald trump has done a remarkably good job at persuading a broad number of people, very, very large number of people that there is a two tiered system of justice at play that targets conservatives. he is also convinced his supporters that they are not really after donald trump, they are after them and that they are trying to go get to them through donald trump and that donald trump is standing up for them as their champion. i think that other than that, scott is right. everyone else is waiting to see what happens, whether these other indictments will make a dent, and they want to be able to get all of those current trump supporters to come over and vote for them if that happens. folly: wright.

bruce fein, for our international audience, what happens if a presidential candidate is indicted? guest: well, he has already been indicted. you are seeing it as you are speaking to three of us, we are watching things unfold. folly: will it hinder the campaign, i mean, will it hurt him in the polls? are there practical ways in which he could not be able to campaign, for example? guest: i don't think his numbers have been impacted substantially by the two outstanding indictments we have now, one in new york and one in mar-a-lago. i do think the political fallout would be greater if he is indicted for the january 6 insurrection. on that score, i want to call attention to another candidate, mike pence, who basically started this to himself, in my view, legally distancing himself from trump.

he said on the morning of january 6, trump approached him and said, you gotta choose between me and the constitution. in other words, are we going to have a rule of law or rule of men? and pence said i chose the constitution. and we know what trump did to pence. and the reason why january 6 looms so large politically, is because under section three of the 14th amendment, if there is a conviction under insurrection, there's a disqualification of anyone in that position from ever occupying not only the presidency, any office in the united states. i think that would move the issue in a different direction, because it will be very difficult for mike pence to walk back his words, which are about as incriminating as you can get. folly: interesting. so, what happens then if he is elected -- speculating, of course -- if he is elected when the case is still in progress? guest: we have this very unusual feature. could a president pardon

himself? i confronted that issue that didn't have to reach fruition at the justice department when president nixon was under investigation by archibald cox, and then he was fired. and then there was a special prosecutor, leon jaworski, and there were worries, is president nixon going to pardon himself in to prevent a prosecution? there was no clear recognition whether there would be any obvious conflict of interest that would prevent that pardon from being effective. it's unknown territory. it is possible that if president trump were elected, he could pardon himself and move all of these cases off the docket. because you can issue a pardon even before an indictment, not only after indictment. those are the stakes when it comes to the rule of law, at least as a possibility. i underscore, it is unconstitutional terrain right now. folly: uncharted territory. scott lucas, trump still holds a commanding lead over his announced primary opponents. could that change? who or what do you see as his biggest challenge right now?

guest: i have a lot of speculation. indeed, it plays into donald trump's hands to speculate about political ramifications. because what trump is trying to do is play the victim, and at the same time, say, if you pursue this, it only makes me stronger. we still have eight months before the first republican primaries and caucuses. we still have 17 months before it is the general election. that is a long and winding road. what i can tell you right now is that this lays out into something which it will be the case of facts and the legal process, versus white noise. and the white noise which will be on social media, on certain media outlets in the united states, is to try to simply cover up the legal process, to wish it away, to turn it into a deep state" plot against donald trump, to raise distracting issues. and that raises a broader issue.

because of that white noise triumphs, if the legal facts of this case and of the other case are obscured or ripped apart by deception, by misrepresentation, it says something about the challenge to american democracy. may challenge what could be at its greatest point since 1865. folly: it's still a long time, as you say, scott, until the republican primary. now, the biden team, interestingly, has been very quiet for the time being. will this change, interview, in the next few months as the campaign heats up? how will they handle this without commenting on the legal developments without looking like they are interfering in the case, one way or the other? guest: you don't comment on the case, because it would be interference. that is not just a political decision, that is a legal decision. this is a case which is being brought by the justice department. it is being brought by federal prosecutors. the judicial branch of the united states must remain separate from the executive branch, and that must be respected by the president,

whether he is named joe biden or someone else. so i would expect no comment on the details of this case now, or in the future. no matter how much, again, white noise is thrown up to try to push joe biden into making a comment, which would be inappropriate. folly: john, your thoughts. how do you see this progressing? it is complicated, is in, to deal with classified documents in court. it is. guest: so, commenting on what scott just said, that is not the only reason joe biden won't comment on this. he is himself still under investigation by a special counsel for possession in his own right of classified documents. and there are all of these reports out there from whistleblowers and whatnot, that his son, hunter biden, just got a real sweetheart deal in delaware and that the department of justice obstructed that investigation. so, president biden enters into very, very hot water if he comments, at this stage in this indictment.

scott is also right, there is a long time between the first caucuses and primaries and before the election. president trump, probably about 50% of his support is very firm. the other 50% are fishing around and they could be persuaded to join other candidates. he is waiting to see what other shoes drop. folly: bruce fein, last word. your thoughts about joe biden and the democrats, can they capitalize on this? and how do you see this case against donald trump progressing and proceeding? guest: well, i certainly agree, the position of mister biden should be complete silence. that is what it means to have a rule of law rather than a rule of men. process is so important. it is the centerpiece of our democratic dispensation. he shouldn't say a single word other than there is a presumption of innocence, mister trump is entitled to all the rides that any other defendant would have, led to have this decided in a court of law, and

in advance, we accept the verdict. no matter what it is. we don't hinge one way or the other. i do think this particular election and the investigations of mr. trump are truly the greatest test of our democracy. certainly since watergate. our processes are under threat. mister trump has questioned their legitimacy, basically saying i don't need to comply with the constitution. during 2019 he said, without any pushback, that under article ii, i have the right to do anything i want as president. if that takes hold in this country, the revolution of 1776 has been undone. folly: ok gentlemen. , thank you so very much for your insight. it was very interesting to hear your thoughts on this, bruce fein, john malcolm, scott lucas, thank you very much. and thank you, as well, for watching. you can always watch this program again anytime by visiting our website aljazeera.com. , for further discussion, go to our facebook page. that is facebook.com/ajinsidestory.

and of course, you can also join the conversation on twitter. our handle is @ajinsidestory. from me, folly bah thibault, and the whole team here in doha, thanks for watching. bye for now. ♪

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