- 37 Federal charges against Donald Trump on a collision course with 2024, this week on "Firing Line."

- We have one set of laws in this country and they apply to everyone.

- [Margaret] The Federal indictment of Donald Trump over classified documents marks a monumental moment.

If convicted, the former President faces prison time.

- I have every right to have those boxes.

- [Margaret] President Trump has received scathing criticism for the allegations in this case, including from some Republicans.

- It's a very detailed indictment and it's very, very damning.

- [Margaret] But his defenders say the prosecution is politically-motivated.

- There's a complete and utter double standard.

If you're going to indict someone for having classified documents, how about Joe Biden?

How about Hillary Clinton?

Nope.

- You don't indict a former President for just anything.

You don't indict a former former President unless your proof is rock-solid and I think the DOJ indictment passes those tests.

- [Margaret] Elie Honig is a former Federal and State prosecutor who has taken on organized crime and public corruption.

He is also an author and a prominent legal commentator.

- The specific charge against Donald Trump here is willful retention of national defense information.

Really the crime here is fairly simple.

- [Margaret] As the 2024 Presidential race heats up and a new headline emerges.

- I'm very proud of my son.

- [Margaret] The Hunter Biden plea deal.

What does former Federal prosecutor Elie Honig say now?

- [Announcer] "Firing Line with Margaret Hoover" is made possible in part by Robert Granieri, Charles R. Schwab, the Fairweather Foundation, the Tepper Foundation, the Margaret and Daniel Loeb Foundation, the Asness Family Foundation, Jeffrey and Lisa Bewkes, the Beth and Ravenel Curry Foundation, Peter and Mary Kalikow and by Craig Newmark Philanthropies, the Rosalind P. Walter Foundation, Damon Button, the Center for the Study of the International Economy Inc, The Pritzker Military Foundation on behalf of the Pritzker Military Museum and Library and the Mark Haas Foundation.

Corporate funding is provided by Stephens Inc. - Ellie Honig, welcome to "Firing Line."

- Thank you for having me.

- You are a former Federal prosecutor and you are a contributor at CNN where I am also a contributor.

We are no longer a nation, as you've written yourself, that has never sought to imprison its former chief executive.

You've called this moment both solemn and inevitable.

- Yeah.

- How is it both?

- Well, it's solemn and I would add surreal.

We've managed to go 230 years as a Constitutional democracy without ever seeking to lock up a current or former chief executive and there's a lot of reasons for that.

But the reason I say it's inevitable is because Donald Trump frankly made it inevitable by his conduct.

There are so many things that Donald Trump has done over his career in politics and even before that have now landed him in the crosshairs of prosecutors and now we're starting to see some of those cases come home to roost.

We now have two indictments of the former President, perhaps more to come and what makes this moment really so remarkable is this is all going to collide next year with the political calendar.

As we go through the 2024 process, as we get into the Republican primaries, the debates, the convention, these trials are going to be unfolding against that backdrop.

We've never seen anything like it in American history and we're gonna have to figure it out as we go.

- Is holding a former President accountable the same as seeking to lock them up?

- So it's an interesting question.

Here, they are one and the same.

We need to be realistic about what these indictments mean.

The DOJ indictment of Donald Trump, if he is convicted, that is a prison case almost any way you look at this.

Not to overstate it, but these are criminal prosecutions.

This is not an impeachment, this is not a lawsuit.

This is not a Congressional inquiry.

The stakes here are the individual, the defendant's personal liberty and so yes, that is what these prosecutors are seeking to do and I think it's appropriate because the stakes are so drastic that prosecutors take extra care and extra caution in when and how they charge and whether they charge a case and I actually have differing views about the Manhattan DA's indictment as opposed to DOJ's indictment.

I think DOJ's indictment is serious enough and well-supported enough that it merits a prosecution.

I don't necessarily think the same about the Manhattan DA's indictment.

- On the Federal prosecution, The Wall Street Journal Editorial Board called the indictment "a perilous path that will roil US politics for years to come."

Even if you believe that the Federal indictment of a former President means that justice is being served, which of course you do, how does one grapple with the argument that this is a crossing the Rubicon moment?

- I think it is a crossing the Rubicon moment and I do give a lot of credence to the argument that there is peril in seeking to lock up a former President.

I also think there is peril in not doing anything about criminal acts that a President or former President has committed and for that reason, I think the bar has to be higher.

That you don't indict a former President for just anything.

You don't indict a former President for a minor offense.

You don't indict a former President unless your proof is rock-solid and I think the DOJ indictment passes those tests.

I think the conduct is certainly severe enough and I think the proof is strong enough that it does merit prosecution.

- The Federal indictment charges Trump with 31 counts under the Espionage Act and six counts related to obstruction and false statements.

Is this the indictment you expected?

- This is.

Based on our reporting, based on what we knew publicly, this indictment reflected the core of what we knew about what Donald Trump did.

What caught me by surprise I guess in a good way from the prosecutorial sense about the indictment is just how well-supported it is.

Every single allegation in that indictment is supported by reference to a specific piece of evidence.

A quote from a text, an email, photos.

Of course, we had those vivid photos of the documents stacked up in the bathroom.

That I did not expect, let me just say that.

By audio recordings, incriminating audio recordings of Donald Trump.

It seemed to me reading it that DOJ made a point of saying "Let's not have any unsupported allegations in here.

Every fact that we're going to assert, let's back up with a specific cite to a piece of evidence."

- In your recent book, you wrote that "a criminal case against a former President would be extraordinarily difficult, regardless of the strength of the evidence."

- [Elie] Yeah.

- Do you think the evidence is strong enough?

- Here's the X factor, the jury pool, the human factor of juries.

I've stood in front of many juries and argued cases and jury verdicts are unavoidably human and they're tinged by emotion and prejudice and in a case like this, Donald Trump evokes such strong passions and emotions that I think it's gonna make the task of convicting him enormously difficult regardless of the strength of the evidence and I'll tell you what's really important here.

The fact that DOJ chose to bring this case in Florida because it looked for a long time like this case was going to land in D.C. That's where all the grand jury action was and if they had charged in D.C., they would've had a much better jury pool in terms of inclination towards Trump.

Donald Trump got 5.4% of the vote in the District of Columbia in the 2020 Presidential campaign, which if you do the math there means 94.6% of the jury pool in D.C. voted against Donald Trump.

In Florida, he won.

Given the choice, if you were Donald Trump, where would you rather be?

Clearly in Florida and I should say while I'm on the topic, DOJ made the correct legal decision I think to bring this in Florida even though prosecutors are going to end up with a less favorable jury pool because there's a concept in Federal law called venue, meaning if you have a crime, you have to charge it in the Federal district where it occurred.

So I think they made the right legal move.

I think they made a political statement by charging in Florida too which is we're not gonna try to choose a favorable turf here.

We're gonna charge him on his own turf in a state that he won and we're gonna let the proof speak for itself.

- The indictment cites a recording in which Trump allegedly talks to reporters about a confidential document involved in a military operation.

According to the indictment, Trump said on tape, quote "See as President, I could have declassified it.

Now I can't, you know, but this is still secret."

How pivotal is that moment to the prosecution's case?

- It's a really important piece of evidence.

He says essentially "I could have declassified this when I was President but I didn't."

That contradicts many public statements that Donald Trump has made since.

It shows that he knew these were sensitive documents.

That in fact he had not declassified everything.

So that recording is really important.

The other thing that's important about that, and there's one other incident in the indictment where he allegedly shows a classified map to somebody, is because it allows prosecutors to answer the question of what was he doing with these documents?

And without that, the answer would be hoarding them, not much, who knows?

Now prosecutors can say, and it's not as horrible as if he was selling these documents to foreign enemies or anything along those lines but it allows prosecutors to say "He was keeping these documents and he was using them for his own political advantage as necessary.

He was trying to shape the coverage that he got and shape the political narrative around himself."

- Explain why Trump is being charged using the Espionage Act.

- Donald Trump is being charged under the Espionage Act but he's not charged with espionage in the normal sense of that word.

The Espionage Act is a very broad law that has several different criminal components to it.

The specific charge against Donald Trump here is willful retention of national defense information.

So it's a fairly straightforward crime and DOJ always looks to do it this way.

You always look for what's the best fit that I can explain to a jury in the simplest way possible?

- There are Republicans who argue that there is no allegation that the former President was retaining documents with the intent to injure- - Right.

- The United States and they say that this is the fatal flaw for the prosecution's case.

What is your analysis?

- That's true on its face.

If you look at the indictment, there is no allegation that he was trying to use these documents to harm the United States but it's also beside the point.

It's not the crime charged here.

The crime charged here is retaining defense information unlawfully and then separately, obstructing justice and lying to the grand jury and the FBI.

So I do think that is a preview of part of what Donald Trump's eventual defense will be, which is there's no evidence that he ever did anything with these documents that actually harmed the U.S. Now the counter to that will be it's inherently harmful to our national security to have documents containing information about military plans, nuclear codes stacked up in the bathroom and on the stage of Mar-a-Lago.

- There are experts both on the left and on the right who criticize the Espionage Act.

They say that the Espionage Act is worded so broadly that it can be used to suppress dissenters, lead to selective prosecution, limit free speech of whistleblowers and journalists.

What do you make of the criticisms of the Espionage Act?

- I think there's some validity to those criticisms and that's why I think DOJ was smart here in the way they chose to charge this case, in a very specific, sort of straightforward way.

He unlawfully held onto national defense information that he wasn't entitled to, period.

But yes, I do think there's some legitimacy to those criticisms but I think DOJ is gonna manage to avoid those problems here.

- A Federal judge has set a tentative date for the trial as August 14th.

- Yeah.

- Tim Parlatore, that former defense attorney for President Trump who resigned in May said that it is likely the former President's legal team will file a motion to dismiss the charges over claims of prosecutorial misconduct.

What would Trump's team need to prove for the case to be dismissed?

- So first of all, nobody should cancel their summer plans based on that August 14th date.

This trial will not go forward in August.

That's a placeholder date.

It will be adjourned because Trump is going to bring various motions to dismiss as, by the way, any defendant has a right to do and any defense lawyer has an obligation to do.

So yes, it's quite clear that Trump's gonna bring a motion to dismiss based on prosecutorial misconduct.

Now, it's really hard to get an indictment dismissed on that basis.

You have to show, first of all, that prosecutors did something that constitutes misconduct and second of all, that it's so serious that it merits outright dismissal of the case and there will be other motions to dismiss as well.

- How long could they prolong the case?

- The typical rule of thumb in the Federal system that I have always used is you need to build in about a year from indictment to trial.

I think the best defense is to not have to defend this case at all.

I think the best defense here is to put this off until after the election and hope that he wins, if he wins- - But is there a path for that?

- Is there a path to push it past November?

I think there is.

The calendar is going to be so crucial here because we are coming up, we are in the 2024 primary season.

So is a court really gonna try a guy who could be the nominee or at least the front-runner in July and August of 2024?

Maybe.

- Why wouldn't they?

- Because you're so close to the election, because it's so politically-charged at that point.

DOJ has a longstanding policy against taking overt investigative steps within a few months of the election.

- So by what mechanism would they delay the trial?

- Well I think Trump's team in the initial stages will make motions and try to draw out the motion process, the briefing process.

If they lose, they'll try to appeal because that takes time.

I think they're trying to drag out the discovery process.

I think they're trying to make the classified documents redaction process as complex as possible and then when you get to a certain point, I think you can overtly argue to a judge if you're Trump's lawyer, "Your Honor, it's not fair.

It's not the best thing for our system to put one of the two major candidates on trial four months, five months, three months before the November election.

Put this thing off 'til afterwards."

- If he were to win the Presidency with a delayed trial.

- Yeah.

- Then what happens?

- If Donald Trump wins the Presidency, then 2029 is going to be a very busy trial year for all of us.

- Because all of the trials would be delayed- - [Elie] Yes.

- Until the Presidency is over.

- There's no law on point here but there is just no way practically, legally, politically, constitutionally that we will have a criminal trial of a sitting President.

I mean DOJ, forget about it.

Trump will either try to pardon himself, we don't know if that's legal or not but he may try that or just order what will then be his DOJ to drop the case.

If you look at the state cases, Manhattan and potentially Fulton County, there is just no way that they will be permitted to take the sitting President on trial in a Manhattan state-level courtroom or a Fulton County state-level courtroom.

That just won't happen.

- I want to ask about the judge in the Florida case.

- [Elie] Yes.

- The case was randomly assigned to Florida District Judge Aileen Cannon.

She has faced skepticism in recent weeks over her ability to remain fair and impartial in the case because she was appointed by Trump and has made numerous rulings in his favor earlier on in this classified documents investigation which were overturned on appeal.

You don't believe that she has to or will recuse herself.

- Right.

- Why?

- First of all, I object to the instant vilification of this judge and frankly the underestimating of this judge.

This is a serious person.

She was a Federal prosecutor for seven years.

She had a prestigious clerkship.

She worked at a top tier law firm and I don't agree with people who just immediately write her off.

"She's no good, she doesn't know what she's doing."

Show me a District Judge who's been on the bench for any amount of time and I'll show you a District Judge who's been reversed.

It happens and it doesn't mean there's an irreconcilable conflict of interest.

- The former President and his defenders argue that he is the victim not just of selective prosecution but of partisan prosecution.

They point to the investigation of President Biden, that there has been no prosecution for his classified documents or frankly the investigation of Hillary Clinton who had a private email server on her personal property when she was Secretary of State.

The classified information that was discovered in dozens of her emails and then the more than 30,000 emails that were deleted after her lawyers were ordered to preserve them are called into question by Republicans in terms of this disparity of treatment by the Department of Justice.

The Department of Justice concluded there was no willful mishandling of classified documents in Hillary Clinton's server, no deliberate attempt to obstruct justice and FBI Director Comey said in 2016, quote "No reasonable prosecutor" would bring a case against Clinton even though she was, quote "extremely careless."

- Yeah.

- So how do you explain this to what some see as a clear double standard?

- So first of all, I don't necessarily agree with James Comey based on what we know about the case.

I don't agree that no reasonable prosecutor would've charged Hillary Clinton.

I do think there are reasonable prosecutors that could have charged Hillary Clinton.

I think it's a very close call.

If the question is, well, what's the difference between the Hillary Clinton case which is right on the razor's edge and the Trump case?

I think it's a couple things.

First of all, the nature of the documents.

Hillary Clinton had some documents that had classified markings.

Donald Trump had over 100 documents that went to our most core national security issues.

Second of all, there's just the willful disobedience and obstruction by Donald Trump.

The fact that he lied.

This is the second half of the indictment, that he lied to his lawyers to get them to lie to DOJ and the grand jury.

So I don't necessarily agree that what Hillary Clinton did could not have been charged by any reasonable prosecutor but I certainly believe that what Trump did was worse.

- Do you think for the layman who is just hearing the basics of each of these cases- - Yeah.

- It is easily confusable?

- I do.

I do understand the argument.

I don't agree but I understand the argument that these cases are all somewhat similar and they are, they're similar but they're not the same.

- Yeah.

- All these cases, Trump, Hillary Clinton, Biden, Pence, they all involve classified documents.

They're all similar in that respect but again, they're not the same and the prosecutor's job is to drill into the facts and decide what crosses the line and what doesn't.

Biden, I think we all need to pause a second on Biden because there's a lot of assumptions Biden's been cleared.

There is still a special counsel out on Biden.

So let's wait and see.

But the threshold issue in that case or any case is did Biden even know these documents were there?

Did he have any ill intent?

That's the first question they'll have to answer.

- We've learned this week that President Biden's son, Hunter Biden will plead guilty to two Federal tax crimes and admit to illegally possessing a weapon.

Prosecutors recommended his sentence be probation.

Is a misdemeanor plea deal and probation a typical sentence?

- It is, nothing about the Hunter Biden resolution strikes me as outrageous or unusual.

Having Hunter Biden take a plea to a misdemeanor failure to pay taxes is completely within the norm.

Then there's the firearm charge where he's not going to have to plead.

He's being charged with a sort of obscure, rarely, not never but rarely-used Federal law that says an addict cannot possess a firearm.

I'll tell you honestly, I charged dozens of Federal firearms cases, I'd never even heard of that.

- The Oversight Committee Chair in the House of Representatives, Congressman James Comer called the Hunter Biden plea deal a quote "sweetheart plea deal" and he claims that it proves there's a two-tiered system of justice.

Many Republicans are picking up on this.

They're repeating this.

How do you concisely dismantle that argument?

- How do they know?

Because the only people who really know are the dozen or so people at DOJ and maybe Hunter Biden's legal team and here's one thing that I've not heard from Representative Comer or Speaker McCarthy or anyone else.

What Federal crime, actual Federal crime, and I don't just mean being a horrible guy and a horrible dad and a drug addict and being with prostitutes and making money from shady sources, what actual Federal crime is there a good faith reason to believe Hunter Biden committed?

And by the way, if Congress wants to dig into this, they should.

They have the right to do that.

I am no apologist for Hunter Biden.

I think the fact that he took $50,000 a month as a no-show job because of his name is disgraceful and maybe worse than that and deserves full scrutiny.

But unless there's evidence that that's criminal as opposed to just reprehensible, then you just don't have anything for DOJ to go on.

You cannot charge someone as a prosecutor unless you have evidence to prove commission of a specific crime and prove it beyond a reasonable doubt.

That's different than just he did that.

- Daniel Ellsberg died recently.

He of course leaked the Pentagon Papers and the next administration responded by ordering the White House Plumbers to break into Ellsberg's psychiatrist's office.

In 1976 after the convictions of those break-ins, William F. Buckley Jr. hosted on his program two people who later became quite famous, the notorious Roy Cohn.

- Yep.

- Along with Mark Felt of the FBI, who then we later learned was Deep Throat.

Listen to them here with Buckley in 1976 criticizing the prosecution of those responsible for the illegal break-in into Ellsberg's psychiatric office.

Take a look.

- I think what's not doable is the attempt to destroy the FBI and the whole system by the excess I believe of criticism that has come about in the last few months.

- The leaders in the Kremlin must be chuckling to themselves at this flagellation that's going on over here because if they planned it, they couldn't have harmed the FBI or the CIA any more than we've done ourselves.

- Yeah, we've done in a year what they haven't been able to do in 30 or 40 years.

- That's right.

- Does airing our dirty laundry in public damage our public institutions as Felt and Cohn claim or does it demonstrate the strength of our system?

- I think it's the latter and I think there's a valuable lesson in what they say there, which is that if you're going to take on this type of prosecution that implicates the highest levels of power, you better do it right and you better do it fair and you better do it straight because if you don't, you will do irreparable damage to our Justice Department, to our FBI and to the public's confidence- - Yeah.

- In those entities and as much as I'm a ready critic of DOJ and at times of Merrick Garland, I think that what we've seen so far from DOJ and from the Special Counsel Jack Smith does uphold the best traditions of the Justice Department.

It does protect those institutional interests.

- In your book "Untouchable," you predicted that an indictment was coming possibly imminently [Elie laughs] in Georgia over Trump's attempts to overturn the state's election results.

- [Elie] Yes.

- That has been delayed.

What do you make of the delay and does it impact your calculus on a possible conviction?

- So, I did make that prediction in the book and I think it will come true.

I think it's quite clear that the DA in Fulton County, Fani Willis, intends to indict Donald Trump.

She's all but given us the calendar on that.

She said it's gonna be in August.

I have some major problems with the way Fani Willis has handled her case as DA.

First of all, she's going to be third at best in line here when she had the biggest headstart.

She had the tape, the infamous tape of Donald Trump calling the Georgia Secretary of State Brad Raffensperger and saying "I need you to find 11,780 votes."

That became public on January 3rd.

- Yeah.

- 2021.

We're coming up on three years and she hasn't indicted?

It took her a year and a half to even get a grand jury seated.

That is utterly inexcusable.

One of the charges that would be made against her is that she slow-played this so it could land close to the election.

I don't know what her defense is gonna be to that.

- Do you think she was political?

Do you think it was politically-motivated?

- Well, let me say this.

I know that she has shown terrible political judgment as a prosecutor.

She has made public comments.

She's given over 40 public interviews about this case during which she has voiced her opinion that this is in fact a crime and her opinion that Donald Trump had a guilty state of mind.

Those are questions for the grand jury, the grand jury hasn't even voted on yet.

She has fundraised off this case.

So this is an example of where prosecution does cross the political line and can legitimately undermine our public confidence in whether this is a straightforward, fair prosecution.

- You wrote an entire book about Trump's second Attorney General, William Barr.

Barr wrote earlier this week, quote "Trump's indictment is not the result of unfair government prosecution.

It is a situation entirely of his own making.

How do you assess his speaking out against Trump in this final chapter?"

- On the merits, I agree with Bill Barr.

But I also think it's important that we keep in mind who Bill Barr is and his role in all of this as a longtime powerful enabler of Donald Trump and he did it as Attorney General.

Let's not forget, Bill Barr, I'll be charitable, bent the truth to help Donald Trump evade any real responsibility for the whole Mueller investigation, including obstruction of justice.

Bill Barr also, he was one of the biggest proponents of the election fraud theory in the crucial months leading up to the 2020 election and to do that from the Attorney General's suite is such an abuse of power that whatever he did later, and yes, after the election, he said there's no evidence of fraud, fine.

But let's not forget what he did to help contribute to the conflagration in the first place.

- Elie Honig, thank you for joining me on "Firing Line."

- Thanks for having me, it was great.

[relaxed electronic music] - [Announcer] "Firing Line with Margaret Hoover" is made possible in part by Robert Granieri, Charles R. Schwab, the Fairweather Foundation, the Tepper Foundation, the Margaret and Daniel Loeb Foundation, the Asness Family Foundation, Jeffrey and Lisa Bewkes, the Beth and Ravenel Curry Foundation, Peter and Mary Kalikow and by Craig Newmark Philanthropies, the Rosalind P. Walter Foundation, Damon Button, the Center for the Study of the International Economy Inc, the Pritzker Military Foundation on behalf of the Pritzker Military Museum and Library and the Mark Haas Foundation.

Corporate funding is provided by Stephens Inc. [upbeat ensemble music] [upbeat ensemble music ends] [relaxed electronic tones] [relaxed piano music] - [Announcer] You're watching PBS.