"A doomsday scenario": Former DOJ prosecutor warns Trump could profit from classified docs trial

Donald Trump Justin Sullivan/Getty Images
Donald Trump Justin Sullivan/Getty Images
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The so-called walls have not yet fully closed in on Trump and his political crime spree, but they most certainly are moving and appear to be gaining speed.

In New York, Donald Trump was recently fined more than 350 million dollars by Judge Engoron for financial crimes. Trump has also been punished with a more than 80-million-dollar judgment in the E. Jean Carroll defamation case.

Trump and his attorneys are continuing to argue that he is a type of king or god who has immunity from the law for any and all crimes he committed while president. Such claims, which are in direct conflict with the spirit and letter of the Constitution, the Founding, and America’s political culture more broadly, will likely be rejected by the United States Supreme Court.

However, these walls are encountering obstacles.

In Florida, Judge Cannon is clearly demonstrating her personal loyalty to Donald Trump and not the rule of the law and the public interest by showing great favor, bias, and deference towards him in the classified documents case. The trial in Georgia for Trump and his confederates’ attempts to steal the 2020 Election as part of the Jan. 6 coup attempt has been derailed, perhaps permanently, by accusations that Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade have a conflict of interest because they violated ethics rules by having an intimate relationship with one another. Trump’s trial in Washington D.C. for the crimes of Jan. 6, is encountering strategic delays by the ex-president’s legal team and may not be concluded before the 2020 election.

The American people and the world will soon see if these legal walls can trap Trump and stop his MAGA movement or if the corrupt and criminal ex-president is able to escape and fulfill his promise of becoming the country’s first dictator, with all of the horror that will mean for the American people and the world.

In an attempt to better understand Trump’s historic trials and legal developments and what they mean (or not) for the election and the country as a whole, I recently spoke with longtime attorney and author Kenneth Foard McCallion. He is a former Justice Department prosecutor who also worked for the New York attorney general's office as a prosecutor on Trump-related racketeering cases. McCallion's books include the companion pieces "Profiles in Courage in the Trump Era" and "Profiles in Cowardice in the Trump Era," as well as "Treason & Betrayal: The Rise and Fall of Individual-1."

In this conversation, McCallion explains that Trump’s trials and the election are a civics lesson and type of test for the American people and if their country will remain a democracy or succumb to Trumpism and authoritarianism. He also shares his concerns that Trump is acting like a mob boss who is trying to intimidate and otherwise threaten the judges, jurors, and witnesses in his trials – and that the FBI must be more active in stopping this behavior.

McCallion also warns that Trump and his inner circle must be carefully monitored by the country’s intelligence and law enforcement community to ensure that he does not sell or otherwise give away the country’s military and other secrets to a hostile foreign power or some other malign actor as a way of raising money to pay off his huge legal fines and penalties.

This interview has been lightly edited for clarity and length:

The walls have supposedly been closing in on Trump for several years from his various criminal and civil indictments and trials. There was a judgment against Trump last week in the financial fraud case in New York, where he will have to pay more than 350 million dollars. Where are we — and Trump — in the story of "the walls are finally closing in"?

He can run, but he can’t hide. Trump is facing multiple trials right now, and the recent civil judgments against him in the New York courts have been seriously damaging to him. On the criminal side, while I think there are some convictions that are going to come down against him before the election in November, he's probably less concerned about doing major time in prison than he is about losing his assets. Between Judge Engoron’s rulings and the E. Jean Carroll case, Trump owes close to half a billion dollars at this point. Trump's lawyers keep saying he can put up a $400 million bond, but that's going to liquidate all of his available cash. There's only so much that Trump can squeeze out of his election campaign fund to finance his legal bills and judgments.

What are the specifics and implications of the ruling against Trump and his business associates in the financial fraud case?

Trump is prevented from engaging in business in New York for three years, and his companies are prevented from conducting business in New York for three years, except under very close scrutiny of what is in essence a special master, who will be at the offices and will have financial oversight over checks that are written and the income and outgoing cash flow there. Trump's business operations, which have been freewheeling and rather sloppy over the years, are going to be severely scrutinized. Trump is going to have to account for every transaction. So, his businesses are going to be largely stalled at this point, and the real estate market and the value of his properties have already cooled off. Trump's New York properties alone are maybe worth at best 400 million dollars at this point. Trump is going to try to move money around or do some other sleight of hand to come up with the cash for the appeals of the recent rulings against him. Of course, Trump is going to try to keep the appeals process going for as long as possible — but he must put substantial assets into an appeal bond and that will tie up pretty much all his cash at this particular point. New York is the major sector for his businesses. Trump still does have operations elsewhere, such as in Florida, but his New York properties are Trump's crown jewels.

I believe that we are probably going to see some Trump bankruptcy proceedings before very long, along with auction sales of some of the properties in order to keep his business liquid. Trump has contracted some of his businesses already in order to raise cash. And he'll continue to do that. But this will take a lot of time and attention. Running a national campaign and trying to sort out what is going on with his businesses is going to be very difficult for Trump, made even more so by the fact that he doesn't have a very large team of people. He always pretty much did it all himself regarding real estate. We have come to the point where this is going to be a very rough year for Trump to balance the presidential campaign and important, critical life and death business decisions that he's going to have to make regarding his properties. Trump is definitely between a rock and a hard place at this point.

Donald Trump hoarded secrets and other confidential information and material during his presidency. He is on trial for those alleged crimes in Florida. As others have pointed out, now that Trump may owe half a billion dollars, all that information is something he could sell to raise money. The country is imperiled again by Trump.

That's a doomsday scenario.

Trump was either psychologically a kleptomaniac by taking the top-secret papers down to Mar-a-Lago or he's crazy like a fox. That secret information is an asset. When in trouble, Trump has shown that he is willing to monetize whatever assets he has. Trump is going to be running a fire sale for not only his real estate assets, but also for his personal memorabilia and maybe even a few top-secret documents. Given the desperation of Trump's circumstances right now he is extremely vulnerable and potentially receptive to an overture from a hostile foreign state actor. For all we know, Trump may have already reached out through intermediaries to market some of the top-secret information that he has.

How would the Department of Justice and the other law enforcement and intelligence agencies try to stop Trump?

Michael Flynn and others ended up in jail by thinking that their conversations with Russian actors and other foreign actors were not being monitored. The FBI and intelligence agencies have a pretty good surveillance net now on targets for possible treasonous activities. Konstantin Kilimnik, for example, was a Russian intelligence GRU agent dealing with Paul Manafort and Trump. He's not in this country, but he's still quite active overseas. In order to sell this information to the Russians, Trump or one of his operatives would have to actually deal with somebody close to the inner circle of Vladimir Putin and the Kremlin. America's intelligence apparatus has those sources pretty well covered at this point. Trump would sell America's top-secret information if he thought he could get away with it. Again, Trump is desperate, so he may run the substantial risk that he will get caught red-handed. The bottom line is that the criminal indictments may continue to multiply as Trump continues to push the envelope and monetize whatever assets and information that he has.

During your time as a prosecutor, you went up against Donald Trump. How are you feeling as you watch these trials proceed?

What we are seeing has never really happened in my lifetime or for that matter in American history. We are seeing with Trump a prominent former President and still active politician subject to criminal indictments, and his popularity has not been hurt, at least in MAGA Republican circles. With each one of the indictments and civil judgments against him, Trump has not only kept his popularity intact as measured by the public opinion polls among Republican voters, but has actually expanded that favorable percentage. I'm quite satisfied that the legal system is working correctly, but across our society there's an increasing lack of confidence in the Rule of Law among a large segment of the US population. This is not only a lack of respect, or confidence in the Rule of Law, but also a lack of confidence in our core democratic institutions as well. There is a growing longing for a strong man, an autocrat, an entertaining personality, such as Mr. Trump among wide swaths of the American public. I believe that no matter what happens in the interim, if Trump is still on the ballot in November, and anything can happen. There are so many wildcards in the mix at this point. It's very hard to tell what the endgame this year is going to be for the country with the presidential election and what happens after.

What is actually happening with Judge Cannon in Florida? She is clearly interfering on Trump's behalf. Can anything be done to stop her?

Judge Cannon had her hand slapped by the 11th circuit early on with some of her horrible amateurish rulings. Since then, Cannon has been more cautious about tipping the scales of justice in his favor, but she has still given Trump a lot of leeway. A schedule is developing where I hope we are going to see some court proceedings in Florida that are going to lead to Trump’s conviction for having willfully hidden classified documents and then lied about it. After all, Trump was caught red handed with top secret documents, and if Trump's classified documents case proceeds this year before the election, a criminal conviction is virtually assured. Cannon is walking a very fine tightrope. Despite the fact she was nominated and appointed by Trump, she does not want to get removed from this case. So the Justice Department will be permitted to introduce its overwhelming evidence against Trump, whether Judge Cannon personally likes it or not.

In Georgia, Trump and his confederates are on trial for interfering in the election there as part of the Jan. 6 coup attempt and plot against democracy. But that trial is being disrupted by allegations of inappropriate and unethical behavior by Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade. But the allegations about their relationship have nothing to do with the material facts of the case. Help me understand what is happening there.

It's a distraction, but a major one. The accusations are unfortunately not completely unfounded regarding their traveling together, expenses, and what money was used to pay for it and whether their vacation expenses came out of the budget for the Trump prosecution. However, those details do not affect the merits of the case against Trump and the other defendants. But these questions are a serious blow to the public confidence in the case and reflect poorly on the judgment of the district attorney. I would have liked her to step aside. She's an experienced prosecutor. But if she had stepped aside, we wouldn't be dealing with this distraction on a day-to-day basis, and we could move on with the prosecution of the case. She decided not to do that. She decided to take the hit in disclosing the intimate details of her relationship. This has slowed down and distracted from the important elements of the election interference case against Trump and the other defendants in the 2020 election. We need to get on with the trial.

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From where I sit, the January 6 trials are the main show and should be the primary focus of bringing Trump and his confederates to justice. The hush money, the financial and fraud crimes and judgments, and the classified documents are all important, but they are peripheral to the larger plot against democracy. 

The Jan. 6 DC trial is more complex and difficult. The low-hanging fruit are the cases in Florida and Georgia. If you have several prosecutions pending, you will want to lead with the relatively quick hit, where you have a very simple and straightforward case that a jury can understand. I am confident that a DC jury will know what happened on January 6, and they'll know that Trump is responsible for inciting the crowd and urging them on in their violent behavior and attack on the Capitol that day. Trump planned it. Trump executed it. Trump urged his followers to act   in the violent manner that they did, and then he sat there watching it all on TV for hours as our elected representatives were under physical assault and in mortal danger. I would like to see the January 6 case move forward but there are so many witnesses, and it won't be a fast trial. Given all the moving parts and variables involved, the trial could last for a few weeks or well-beyond the endurance of a normal jury.

You've dealt with the man directly. What do you think is going through Trump's mind? What are the conversations that Trump's attorneys are having with him right now?

Trump has gone through several experienced attorneys who have tried to talk reality to him. Trump's only viable exit strategy would be to cut a deal with the mutual prosecutors and do what Nixon's vice president did - Spiro Agnew - which was to enter into a plea bargain agreement that avoided jail time, with the promise not to run for public office again. Because of his ego, such a decision would be very difficult if not impossible for Trump. He's been well advised mainly by experienced former prosecutors who were his defense counsel, a group that has now either fired or left, to make that deal. It's not acceptable to Trump at this point, but he can still go that route. There's still an exit ramp for him. But it would require Trump stepping away from the presidential race. If Trump did not have the ego and psychological self-aggrandizement issues that he has, he would be making deals right now. Trump has a fatal personality flaw if he does not face reality and start cutting his losses at this point, which he definitely can still do.

Special counsel Robert Hur released a "report" on President Biden and his handling of classified documents. Instead of just stating the plain facts that Biden did nothing illegal that merits prosecution or further investigation, Hur wrote a political hit piece, describing the president as basically a senile old man. Hur was nakedly partisan. As a law enforcement professional at a high level, what was your reaction to Hur's report? 

It really mirrored the worst moments of James Comey's decision not to prosecute Hillary Clinton, but instead giving her a lecture on what she should have done and what she failed to do. It's basically the same thing with the Hur report. Prosecutors are not supposed to do that. We're not teachers, we're not schoolmarms. We are given the task of either making a decision, black or white, after having seen all the evidence, to prosecute or not to prosecute. That's it; Nothing else. As prosecutors we are not there to be the moral or ethical guides of public opinion. What special counsel Hur did against President Biden was a cheap shot. A quick hit for a media bite. It was unprofessional.

What Hur did has nothing to do with his legal professional responsibilities. It has a lot to do with career management and leaving the door open to a position in the Trump administration and keeping his Republican buddies still on his side. Hur should have simply concluded that there is not sufficient evidence, and it would be inappropriate to prosecute the president regarding these matters. Instead, Hur said that Biden is some type of doddering old man, which is really the best card, if not the only card, that the Republicans can play against Biden at this point.

Trump's attorneys are trying to stretch out the proceedings for as long as possible, literally running out the clock until the Election with the hope that he wins and becomes a de facto dictator. What are some of the specific tactics they are deploying in service to this strategy?

Dragging out the timeline for as long as possible is key to any defense strategy, and especially so given the elections and Trump. This includes everything from very technical scheduling orders, motions, and pretrial to limit and/or eliminate evidence. There is a whole array of arrows in a defense lawyer's quiver that can be used to delay a trial. Trump's attorneys are using all of those strategies in all of the courtrooms that they're in at this point, with varying success. The hope is that at least one or more of these criminal proceedings will come to trial by the summer. At some point after that, the Department of Justice's own guidelines would mean that the prosecutions would be suspended until after the results of the November election are in.

Trump is basically a political crime boss. He and his agents have been making both veiled and direct threats against witnesses, jurors, and members of law enforcement, including the judges and prosecutors, who are involved in his trials. What can be done to protect these people (and the public at large) from Trump and his agents so that a proper trial can take place?

I had organized crime cases where there were efforts to manipulate and influence jurors and intimidate witnesses. But I have never seen anything like the concerted attempt to do this by Trump and his agents. I am surprised that the Department of Justice and law enforcement have not come down harder on these attempts and responding to it. The judges are in danger of losing control of their courtrooms. There are a lot of dangerous people out there who are trying to track down witnesses and potential jurors in these Trump trials. The FBI has a unit working full time on this, but additional resources are going to have to be put in place to stop and prosecute those people who are attempting to interfere with the judicial process.

Trump's criminal and civil trials are a type of civics lesson for the American people. What are some of the lessons they are learning?

We still have to see how it plays out. I would like to see the civics lesson at the end of the day be that the rule of law has stood firm in these United States and that no man is above the law.  When the evidence warrants a guilty verdict – and I think it does in all of the various and sundry criminal prosecutions against him, Trump should be found guilty beyond a reasonable doubt. Jurors generally take their civic duty very seriously. They will deliberate and evaluate all the evidence and have the fortitude to return a guilty verdict if warranted. Unfortunately, there are growing numbers of our fellow citizens who want to enjoy the benefits of democracy, free speech, etc. but do not want to assume the responsibilities of being a juror or respecting the rule of law. I truly hope that once the guilty verdicts are returned, and the guilty are appropriately sentenced, that America will wake up and see, again, that our legal system is one of the bedrocks of our democratic system, and it has prevailed.