Ben Wittes: The Trump Indictment Is Not Trivial

[0] Welcome to the Bull Work podcast on the day after the arraignment of the former president.

[1] It is April 5th, 2020.

[2] Quite a show yesterday, as I wrote in my newsletter this morning, this was the man in full from the sulking defendant to the dock to the seething victim who erred all of his grievances in that bizarre diatribe to the faithful at Mara Lago.

[3] But for the first time in American history, a former president of the United States was arrested, read his Miranda rights, reign on felony charges.

[4] So that, That was new, but we're going to have to work through exactly what it means, how we got here, what's about to happen, and somewhere in my youth or childhood, I must have done something good because I am joined today on this historic day by Ben Wittis, editor -in -chief at Lawfare.

[5] Ben, thank you so much for coming back on the podcast.

[6] There is nowhere I would rather be.

[7] I have only done two media appearances on this other than the Lawfare podcast itself, and they are back -to -back, you and Prit Bharara, and that is a mark of my respect for you both.

[8] Well, and that's why I dropped the Julie Andrews Sounded Music line on you there.

[9] I hope you caught that reference, because I know that Tim Miller would not have got it, since he's never heard of Sounded Music.

[10] I don't think he's ever watched it.

[11] Yeah, he pretends not to have.

[12] You've got to respect that Tim is faking his illiteracy on matters of Annette Funicello and the sound of music and whatnot.

[13] Okay, he might be faking the sound of music, but I think he's definitely sincere about not knowing who Annette Funicello was.

[14] Okay, we have to get into this.

[15] There was so much to talk about, and you guys at Lawfare have done a brilliant job of analyzing this indictment and the statement of facts and where we're going.

[16] But could you indulge me for just a moment?

[17] Because I'd like to talk about what happened in Wisconsin last night.

[18] I am going to learn from you about what happened in Wisconsin because I was working on this hearing until like 2 a .m. yesterday.

[19] And so I'm just dimly aware that something electoral happened in Wisconsin.

[20] I think you are more than dimly aware.

[21] So every election in Wisconsin is close, generally decided by about 20 ,000 votes.

[22] The state Supreme Court election was decided by nearly 200 ,000 votes.

[23] The liberal candidate just absolutely shawl.

[24] lacked of the conservative, Dan Kelly, who's a former Supreme Court Justice, who now has lost twice, which also almost never happens.

[25] This was the most expensive judicial race in American history, more than $40 million.

[26] The stakes could not be higher.

[27] I mean, normally I kind of roll my eyes at the hype, but in this case, the hype is justified, as I've said.

[28] Pretty much everything in Wisconsin politics is on the line from abortion to gerrymandering to the future of Act 10.

[29] And for the first time, in a decade and a half, liberals have now flipped the Wisconsin court.

[30] So to say that this is a cataclysmic shift in politics is putting it mildly.

[31] We could talk about the vote patterns as well.

[32] I was on Morning Joe this morning, Ben, with Steve Kornacki, and I'm just sitting there and Steve, who's just this amazing beast, is analyzing my hometown, talking about the voting trends throughout the state where a lot of the suburban counties that had once been solidly Republican continue to shift.

[33] I live in Ozaki County, one of the so -called wow counties used to be the people like Mitt Romney would get in the upper 60s.

[34] Dan Kelly, the conservative, only got 52 % of the vote in crucial Waukesha County, where Dan Kelly needed to get at least 68, 69 % of the vote, he only got 58%.

[35] He also lost in the so -called bow counties, Brown County, Outa Gemi County, Winnebago County.

[36] Truly an extraordinary story, though, to see how much of an impact the Dobbs decision has had on our politics.

[37] I mean, it's one thing to sort of theoretically talk about how this is going to motivate voters, how it's going to alienate independent voters.

[38] But you look at this result, and there's no other way to read it other than is Dobbs, Dobbs, the abortion decision.

[39] Also, a really sound repudiation of election denialism.

[40] Dan Kelly had actually been on the payroll.

[41] of the Republican Party in advising them on the fake elector's scheme.

[42] But an ugly, ugly, ugly election, you're asking, Ben, Charlie, how ugly was it?

[43] How bitter was this judicial election?

[44] I was asking that.

[45] I was about to say how ugly was.

[46] Okay.

[47] Here is, what I'm going to suggest in advance is the least gracious concession speech in the history of American judicial elections.

[48] I don't.

[49] just want to say I could not be more excited to hear this.

[50] This is former state Supreme Court Justice Daniel Kelly, who has just been defeated by double digits by Janet Protissowitz.

[51] And he's speaking to his devoted supporters.

[52] And look, I mean, I suppose the good news is he actually conceded that he lost the election, which is kind of an innovation now in the MAGO world.

[53] But listen to this guy, former state Supreme Court justice, this is his concession speech last night.

[54] And it brings me no joy to say this.

[55] I wish that in a circumstance like this, I would be able to concede to a worthy opponent.

[56] But I do not have a worthy opponent to which I can concede.

[57] This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts.

[58] It was truly beneath contempt.

[59] Now, I say this not because we did not prevail.

[60] I do not say this because of the rancid slanders that were launched against me, although that was bad enough.

[61] But that is not my concern.

[62] My concern is the damage done to the institution of the court.

[63] My opponent is a serial law.

[64] liar.

[65] She's disregarded judicial ethics.

[66] She's demeaned the judiciary with her behavior.

[67] And this is the future that we have to look forward to in Wisconsin.

[68] As they say in the wow counties.

[69] Wow.

[70] Yeah, wow.

[71] So how does he really feel about all of this?

[72] Yeah.

[73] What do you really think?

[74] One of his big selling points as he was running for Supreme Court is that he had a judicial temperament.

[75] But rancid, the serial liar.

[76] And so I'm guessing that he did not call her and congratulate, but...

[77] Although, you would love to be a fly on the wall for that call.

[78] There was no call.

[79] I think it's safe to say.

[80] I think he sent the message.

[81] I mean, the obvious interpretation of this is that this is a big victory for pro -choice folks, for liberals, for Democrats in Wisconsin.

[82] But this was not a...

[83] great case study in judicial elections, we have to say.

[84] There are reasons to think that this might be exhibit A and why maybe electing judges is not the best way to go.

[85] I mean, look, the whole idea that there are nonpartisan judicial elections in Wisconsin such that, you know, we have to hide the party nature of the culture war behind the idea that Janet Protisewitz, is the liberal but not a Democratic candidate.

[86] And this fine fellow is a conservative but not the Republican candidate.

[87] There is a partisan election for Supreme Court in Wisconsin that tracks on to partisan views of things like redistricting in the state and in things like abortion.

[88] And nobody should kid themselves otherwise.

[89] And that is a, you know, repellent reality if you believe or want to believe that, you know, the law should exist as some kind of discipline that while not independent of politics is not simply a professional gloss on politics either.

[90] And so I have a kind of allergy to partisan or clearly but not acknowledgeedly partisan.

[91] Partisan.

[92] judicial elections.

[93] That said, this is the way most states do it.

[94] And that means that the more partisan our politics gets, the more we are going to have this kind of polarization over elections to courts.

[95] And the more we're going to have party caucuses on courts, which is exactly what we have in Wisconsin.

[96] And the reality is this has been a long time coming.

[97] There's been a liberal conservative split on the court.

[98] You know, it's been hand -to -hand combat for some time.

[99] Of course, nothing remotely like in terms of the scope that we're seeing in Wisconsin.

[100] You know, look, when we talk about how consequential this is going to be, this was a binary choice when it comes to abortion.

[101] Wisconsin has an 1849 blanket ban on abortion, including in cases of rape or incest.

[102] Had Kelly been elected, it's pretty certain that would have been upheld, or at least, you know, in whole or in part, with Janet Protisaywitz, it seems more likely than not, if not a slam dunk, that they will find that unconstitutional.

[103] I think people have somewhat unrealistic expectations for what the court is going to be able to do with gerrymandering.

[104] Jurymandering is a particular problem in Wisconsin because the voters are so concentrated in, you know, geographically.

[105] When you have Dane County that is basically 81, 82 percent Democratic, how do you draw lines to make competitive districts?

[106] same thing with Milwaukee, but a whole host of other issues will be decided by the court because you have a Democratic governor, you have a Republican legislature, which looks like it may have a supermajority.

[107] So they have complete gridlock.

[108] So everything shifts to the court and it's an indication of how radicalized our politics has become.

[109] But in terms of what it means for Republicans, they understood what an existential threat this election was, which is why they brought in, you know, tens of millions of dollars.

[110] Democrats saw how crucial it was, because the entire Scott Walker legacy now could be, you know, in jeopardy.

[111] All of these things could be decided by the court.

[112] I also think that it's not going too far to say that Wisconsin, like Kansas last year, this is a huge warning sign to Republicans about the way the abortion issue is going to play out.

[113] If they roll into 2024 with the same kind of politics on a woman's right to choose.

[114] They're going to see probably a similar kind of result, and I don't see that any of them are looking for an exit ramp at the moment.

[115] So I obviously defer to you on Wisconsin.

[116] I do note that the Republican prospects in major statewide elections have been repeatedly declining.

[117] So they've lost two straight governor's races.

[118] They've lost the last presidential race.

[119] They've lost now two right major Supreme Court races.

[120] And so it is really only the gerrymandering and the underlying separation, sort of great sort kind of separation of parties that is holding the Republican party viable in the state of Wisconsin.

[121] Yeah, it's going to be interesting to see how Republicans react to this.

[122] There was a lot of speculation before the election.

[123] that if Republicans got a two -thirds majority in the state Senate, which they may have gotten as well last night, that they would use that power to impeach and remove one of the liberal justices like Janet Prasaywitz.

[124] The fact they were even talking about it before the election.

[125] Now, I don't know whether they would actually pull the trigger on that kind of nuclear option.

[126] I have a friend who was texting me, oh, Charlie, you don't believe that.

[127] We wouldn't do anything like that.

[128] And I guess I'm interested to know, are you?

[129] Are you really going to stay?

[130] up against this?

[131] Will you be the decisive vote against this?

[132] I mean, I'm watching what's happening in state legislatures around the country.

[133] And it does seem as if the most extreme tactics are being employed.

[134] I haven't been able to follow really closely.

[135] In Tennessee, they're actually expelling three Democrats for participating in a pro -gun control demonstration on the floor.

[136] I mean, we know what they're doing down in Florida.

[137] So we will see.

[138] I'm not making any predictions right now, except that If you are a Republican in Wisconsin, there is nothing about that election that should be anything other than deeply alarming, especially if you have the prospect of Donald Trump.

[139] Speaking of Donald Trump, we had the quasi -perp walk.

[140] He's sitting in court next to his lawyers who are now going to have to handle his defense.

[141] This may be the first of many cases.

[142] I don't know whether you heard former Attorney General Bill Barr commenting on Trump's newest lawyer, quit.

[143] it, you know, his very prestigious law firm because he really wanted the opportunity to represent Donald Trump.

[144] Bad life choices.

[145] That's what.

[146] So Bill Barr, who is a bleep, bleep, bleep, bleep, bleep, bleep, was on Fox News and he was asked about this.

[147] And it's kind of one of those blind squirrel moments.

[148] Even a blind squirrel finds it not.

[149] But listen to Bill Barr talk about that life choice by the attorney to quit his job to go represent Donald Trump.

[150] He left Cadwallader, his firm where he was a partner.

[151] He said he could not, something along the lines of I couldn't pass up the opportunity to do this, to handle this.

[152] Why do you think he says that?

[153] Because he hasn't worked with Trump before.

[154] You think he'll be sorry?

[155] Is that what you're saying?

[156] Lawyers inevitably are sorry for taking on assignments with him.

[157] They either spend a lot of time before grand juries or depositions themselves.

[158] And, of course, there's no way that you're going to control him.

[159] Right?

[160] I mean, isn't he like the worst nightmare of every criminal defense attorney?

[161] Well, he is, but, you know, not just of criminal defense attorneys.

[162] Barr's comment there is darkly humorous, but it's also quite factually accurate.

[163] Barr himself, of course, spent a lot of time in essentially compulsory interviews with the January 6th committee, the White House Counsel's Office people, Mr. Chippalone and Mr. Philbin and, you know, others have spent a lot of time, both with the January 6th Committee and with grand juries, and as have, you know, Mike Pence's lawyers.

[164] And so it's a funny quip on Barr's part, but it's quite accurate that, you know, it's not just that he's leaving Cadwallader, which is a, you know, a partnership that's worth a lot of money.

[165] and has a lot of job security and whatnot.

[166] But it's also that he's, you know, buying himself a world of pain.

[167] So a partner at a firm like Cadwallager, and we're just speculating here, but, I mean, when you say that that's a remunerative position, I mean, do partners, like, make them like a million dollars a year at a firm like that?

[168] Would that be unreasonable?

[169] So many of them make quite a bit more than that.

[170] It very much depends on the partner and the law firm and what.

[171] what their practice looks like.

[172] But he gave up a lot to do this, to take what may be one of the shittiest jobs in American law.

[173] Yeah, and, you know, one interesting question is, you know, Cadwallader may have lots of reasons for not letting him take it on as a partner, including, by the way, that, you know, Trump is famously not very good about paying his law firms.

[174] And in addition, of course, a big law firm, you know, may have conflicts with, respect to representing the former president for any of several reasons, but also it's just not great reputationally for a major law firm to be associated with Donald Trump at this point.

[175] So it's an interesting problem that, you know, the former president, just as a comment on where he is as a client, that, you know, the former president of the United States can't get major law firms to represent him.

[176] And if you're a lawyer who wants to represent him, you've got to leave those firms and sort of hang up a shingle so you look as much like Joe Tacapina as possible.

[177] This is Charlie Sykes, host of the Bullwork podcast.

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[184] I want to talk about the indictment.

[185] And in my newsletter this morning, because I'm not a lawyer, I step back from it.

[186] I said, let's leave aside, you know, the punditry and the gamesmanship and all of this and everything.

[187] It is worth putting this in context, you know, what Donald Trump has already done to our politics and our norms and our collective conscience.

[188] And I said this yesterday.

[189] Donald Trump is the only man in American presidential history who could pay off two porn stars and orchestrate a criminal conspiracy to cover it up in the final days of a presidential election and have people.

[190] People think that it's trivial or a nothing burger.

[191] So I was really anxious to get, you know, your take, law fair, you had the whole team put together a piece.

[192] And you point out that I'm just read you, you know, the key paragraph here.

[193] The indictment sought by Manhattan District Attorney Alvin Bragg is not a trivial document.

[194] And Trump's defenders should not kid themselves.

[195] This case is mere politics.

[196] It alleges serious misconduct, plotting to pay hush money to multiple people to avoid electoral consequences.

[197] and falsifying documents to cover it up.

[198] And it does so, with an apparently powerful array of witnesses and documents to back it up, the evidence appears both more diverse and more substantial than previously understood.

[199] That said, the precise legal theory underlying the document remains somewhat obscure.

[200] So, Ben, walk me through all of this, because I agree the underlying conduct seems quite serious, but I am not qualified to analyze the question of the legal theories and, you know, trumping up a misdemeanor to a felony and bootstrapping it on to federal charges.

[201] So help me understand this.

[202] All right.

[203] So let's talk about where I think the indictment is frankly a little bit stronger than I expected and then where it is still a little bit confusing or murky and what we should make about that.

[204] So one thing about the indictment and the statement of facts is that, you know, a lot of conservative commentators and Trump defenders have tried to dismiss this as, you know, a routine NDA sort of confidential settlement agreement.

[205] And it's clearly not that, right?

[206] It's a arrangement and sort of scheme to bury by by, you know, quite tawdry means, you know, having the National Enquirer buy stories and kill them, catch and kill, but which is not limited to Stormy Daniels, includes also, you know, a doorman at Trump Tower and, you know, Karen McDougal, the Playboy model.

[207] It includes the creation of false records at multiple companies in order.

[208] to hide the nature of the payments.

[209] And, you know, it is amusing to see a lot of conservative columnists and members of Congress crying out, you know, it's outrageous that you can't, you know, falsify your hush money payments to your porn star mistresses anymore.

[210] You know, what is this country coming to?

[211] It is presented as a much more orchestrated scheme and much more closely tied to electoral machinations than I had understood before.

[212] And the critical piece of evidence here, which I think is new, is this contention that there was an explicit understanding meeting or statement between participants in this.

[213] If you could get this until after the election, you don't have to pay because it doesn't matter if it comes out after the election.

[214] So much for trying to keep it quiet because you were concerned that Melania would get mad.

[215] They actually have details in there that, in fact, Trump didn't care if it came out after the election.

[216] Exactly.

[217] And so I do think the factual claims, and I thought Bragg was fairly effective yesterday in his press conference, about saying, hey, this is not unconnected to concerns about democratic integrity, right?

[218] If you're launching a scheme in the immediate run -up to the election to pay off people with bad information and then disguise the payments as routine business records by way of influencing voters, that is not unrelated to, you know, election interference to the Russia stuff, which was happening concurrently.

[219] It's not directly related, but it's, it kind of sounds in echoes of that.

[220] The second thing that I thought was interesting, again, in a sort of positive sense was that I do think the evidence that the statute in question is kind of bifurcated.

[221] There's the misdemeanor version of the statute, which is just if you falsify business records with intent to defraud.

[222] And then the felony level is if you falsify business records with intent to defraud while in the course of or intending to commit some other crime, right?

[223] they have him, I think, pretty dead to rights on the misdemeanor stuff.

[224] Like, the business records were falsified, and it surely wasn't with innocent intent.

[225] And so I think one of the things that gets lost in here is that there's 34 misdemeanor counts that are really unsubtle.

[226] So the question of the integrity of the indictment really boils down to the question of this step up?

[227] Was this done with the intent to commit some other crime?

[228] And if so, which crime?

[229] And here, I think there's legitimate questions about the indictment, honestly.

[230] It's not completely obvious what the crimes he was intending to commit were.

[231] He didn't spell it out in the indictment.

[232] Right.

[233] We all expected that Bragg would lay this out in the documents released yesterday, and he didn't.

[234] He said very candidly at his press conference, I didn't because I don't have to yet.

[235] I just have to make allegations, and I have to state a claim under the statute.

[236] I did that.

[237] The result is that that analysis that we're all going to do of whether he's really got a case for felony step -up here is going to be deferred until we see briefing on a motion to dismiss.

[238] And so I think that the challenge to this indictment intellectually and legally has not really been resolved.

[239] I think people are still on both sides, both in defense of it and in criticizing it, are being just way too confident about what we know.

[240] And my working theory is that the facts with Trump are always worse than you expect, and therefore the step up is probably, probably has integrity, but I don't think the public record supports that yet.

[241] I do think Braga acquitted himself quite well yesterday.

[242] And so I have more confidence in this process than I did a week ago.

[243] So when we talk about the step up, it's basically there's a misdemeanor that you make into a felony because you falsify the records, which is a misdemeanor, in order to cover up a more serious crime.

[244] So there have been a lot of speculation that that more serious crime and that felony was a violation of federal election laws, campaign finance laws, which raised question because nobody's ever quite done it that way before.

[245] You could imagine the defense attorney's coming in and saying, you can't charge somebody in that particular way.

[246] You know, you're a state court.

[247] This is a federal issue.

[248] Let me read you what Charlie Savage writes in the New York Times this morning, though.

[249] He says, and the headline is, a surprise accusation bolsters a risky case against Trump.

[250] The unsealed indictment laid out an unexpected accusation that bolstered what many legal experts have described as an otherwise risky and novel case.

[251] Prosecutors claim that he falsified business records in part for a plan to deceive state tax authorities.

[252] For weeks, observers have wondered about the exact charges the Manhattan District Attorney would bring, accusing Mr. Trump of bookkeeping fraud to conceal campaign finance violations, many believe, could raise significant legal challenges.

[253] that accusation turned out to be a major part of Mr. Bragg's theory, but not all of it.

[254] Quote, pundits have been speculating that Trump would be charged with lying about the hush money payments to illegally affect an election, and that theory rests on controversial legal issues and could be hard to prove, said Rebecca Rafi, a New York law school professor and former state prosecutors.

[255] It turns out the indictment also includes a claim that Trump falsified records to commit a state tax crime.

[256] That is a much simpler charge that avoids the potential pitfall.

[257] So that was one little wrinkle that he brought in the possibility of violating state election laws, state tax laws, you know, as perhaps a bulwark against a motion to dismiss because it involved federal charges.

[258] Is that the way you see it?

[259] It is.

[260] So again, the indictment and the statement of facts are a little bit murky and, you know, keep the hand close to the vest.

[261] on precisely what the crime he was intending to commit in the course of each of these 34 allegations.

[262] It alludes to both tax and election crimes, and in his press conference, he elaborated on that a little bit, talking mostly about state election law, but also alluding both to federal election law and to tax law.

[263] And so my assumption here is that for each of these 34, he is going to throw all three bits of spaghetti at the wall and try to show that, you know, Trump was doing this with intent to conceal the reality both for campaign finance purposes at the state and federal level and for tax purposes at the state and federal level and see which one.

[264] the judge will allow a jury to hear.

[265] That's sort of my assumption about what he's doing, but I don't think we will know until Trump files his motion to dismiss.

[266] And Bragg responds to it.

[267] Let's go back to the underlying question about whether or not this was a conspiracy to affect an election.

[268] Because, you know, for people who think this is trivial, it's just to pay off to a porn star, I think the context is important here.

[269] And to be clear, it is not charged as a conspiracy, which is one of, I think, the weaker weirdnesses of the indictment.

[270] Yeah, they use the word scheme.

[271] So I'm using conspiracy colloquially.

[272] It certainly alleges a conspiracy, but it doesn't charge one.

[273] I'm having flashbacks to October 7, 2016.

[274] And this was one of the dazzling details, I think, of the statement of facts.

[275] About one month before the election, Honor, about October 7, 2016, news broke that the defendant, Trump had been caught on tape, saying to the host of accidents, Hollywood, just start kissing them.

[276] It's like a magnet, just kiss.

[277] I don't even wait.

[278] When you're a star, they'll let you do it.

[279] You can grab anything.

[280] You can grab them by the, you know what.

[281] You can do anything.

[282] They bracket it out, pussy, by the way, which it's really important to behave with good taste in dealing with Donald Trump.

[283] And also, you're dealing with Manhattan criminal courts.

[284] They're very squeamish about these things, right?

[285] When Trump and Manhattan criminal court are together, it's just really important to behave with decorum and propriety.

[286] Actually, just don't use those words.

[287] Yeah.

[288] So the statement of facts goes on.

[289] The evidence shows that both Trump and his campaign staff were concerned the tape would harm his viability as a candidate and reduced his standing with female voters in particular.

[290] Shortly after the Access Hollywood tape became public, the National Enquirer editor -in -chief basically came forward and said another woman, Stormy Daniels, was alleging she had a sexual encounter with Trump while he was married.

[291] and David Pecker told the editor -in -chief to notify Michael Cohen, and of course, they agreed to pay those money.

[292] Okay, so October 7th, 2016 was one of the pivotal moments in American politics.

[293] It was a pivotal moment for the Republican Party and for the outcome of that election.

[294] I remember it very well because that day it certainly looked like that the Trump campaign was at great risk of falling apart.

[295] One Republican after another was bailing.

[296] They were pulling their endorsements.

[297] I wrote about this.

[298] I was texting back and forth with Reince Priebus at the time.

[299] It was chairman of the Republican National Committee in Wisconsin.

[300] I'm a good friend at that time.

[301] And he was telling me, I'm in tears.

[302] We have to get him to pull out of the race and, you know, what a disaster it was.

[303] But then the sainted Mike Pence came rescuing.

[304] Yeah, well, exactly.

[305] So this was one of those real turning points.

[306] If you put your finger on the real turning point, the Republican Party had a chance to say, okay, we're going to move on from this guy, this is too much for us, or we're going to basically swallow this gigantic shit sandwich and we're going to embrace him, which of course was what they did and it set the pattern for the next seven years.

[307] And so at that moment, it becomes very relevant where they're thinking if one more shoe drops, we're done and we're speculating, But if, in fact, very shortly after the Axis Hollywood tape had dropped and all these Republicans were looking, which way do we go, which way is the wind blowing, and one more serious allegation like that came forward, might it have made a huge difference in a race that was decided by a handful of tens of thousands of votes.

[308] And so in terms of the magnitude of this and why there was this scheme to pay off this person, to cover it up.

[309] and then to lie about it and all of this stuff.

[310] It is relevant in American politics as opposed to, oh, this is so trivial.

[311] Because I do think that that whole moment and that whole decision structure really is what brought us to where we are right now.

[312] And I mean that in a global sense.

[313] Am I waving my hands?

[314] All of this, everything that we're experiencing.

[315] So I think that's right.

[316] And that was one of my big takeaways in reading this thing, which was before, I sat down with the document itself.

[317] My instinct was, you know, you've got Georgia, which is about trying to undo the election result in Georgia.

[318] That's a BFD, right?

[319] You've got the January 6th investigation, which is about, you know, January 6th.

[320] Well, that's a really big BFD.

[321] And then you have Mar -a -Lago, which is about, you know, the potential theft and certainly the retention of classified materials and obstruction, which all of which are, you know, very close to my deep state heart.

[322] Those are a big deal.

[323] But this is really just kind of about, you know, sex.

[324] And, you know, for those of us who were concerned about the Bill Clinton stuff, and I was one of them, it's roughly at that level of seriousness.

[325] But, you know, that stuff may be serious, but it's nowhere near the democracy threat level.

[326] And in any event, Clinton was never prosecuted.

[327] So it feels like it's at just a completely different level of seriousness.

[328] But then you say, well, okay, but consider when it happened and consider why it happened and consider what the purpose of the concealment was.

[329] And then all of a sudden it starts to feel, not just like 2020, not just like January 6th, certainly, or Georgia certainly, but it becomes inflected with those democracy concerns in a way that I think elevates it.

[330] And I think the fact that it is organized all around that October 7th date and the Access Hollywood tape really does elevate that point.

[331] And by the way, I actually think the corrupt relationship with the aptly named David Pecker of the National Enquirer, I mean, that is a deeply corrupt relationship in which, you know, the National Enquirer explicitly puts itself at the service of the Trump campaign, buys stories that are unfavorable to him, promote stories that are favorable to him.

[332] And that really presages the role that Fox is going to play for which it is now facing the Dominion suit in the 2020 context.

[333] And so I actually walked away from yesterday.

[334] This is still not the case that I would want to have started with.

[335] I'm not confident of it, but I do feel better about it than I did yesterday morning.

[336] And I do think the argument for the case having integrity and something we should take seriously is better than I thought it was going to be.

[337] No, I agree with you.

[338] I'm really glad to hear you say that because there were a number of those details, including the scheme slash conspiracy, where David Pecker meets with Donald Trump, you know, at Trump Tower in 2015.

[339] And they come up with this deal that we are going to cover up for you.

[340] We will catch and kill any negative stories.

[341] and we will run negative attacks on your opponents, as of course they did with Ted Cruz.

[342] I thought another dazzling detail was that after the payoffs, after the scheme to cover up those payoffs and to create the false documents involving Michael Cullen, that Michael Cullen actually discussed this scheme with Donald Trump in the Oval Office, in the White House.

[343] That, I mean, this continued into his presidency.

[344] I don't know whether this was known before.

[345] I think we knew that there were, you know, audio tapes of Cohen and Trump talking about paying off Karen McDougal.

[346] But the fact that they actually met in the Oval Office to sort of reconfirm the scheme that Cohen would pay it, that they would pay him back.

[347] They would pretend that it was, you know, legal fees, which was total bullshit because he didn't actually have an agreement with them.

[348] But that they did it, I thought it was also a tell, that this extended into his presidency.

[349] I agree with that.

[350] And I also think the, the, other factor that is interesting here is that the indictment and the statement of fact refers very explicitly to a group of witnesses who we hadn't really been thinking much about for a while.

[351] So we've always mentally thought of this as the Michael Cohen case, right?

[352] And you can dismiss it by saying, well, Michael Cohen, he's a convicted perjurer and he's totally unreliable, and he's told different versions of this story, etc., etc. But a surprising amount of the statement of facts is not actually attributed to Michael Cohen.

[353] It's document -based.

[354] David Pecker is a very significant player in it.

[355] There's a part of the indictment that describes conversations between Cohen and Alan Weisselberg, which raises the question to me of whether Weisselberg will be called to testify.

[356] And the allegations are more diversely sourced and not unreliant on Cohen by any means, but less reliant on Cohen than I expected.

[357] And that's a significant factor as well.

[358] And there's another factor as well.

[359] I was listening to the wall -to -wall punditry about all of this, and it struck me that much of the analysis was by people who think this is a game of checkers rather than chess, because this trial will not take place until next January at the earliest.

[360] Most likely it would be shoved back into the spring, which means to bring into the primary season.

[361] But, Ben, by next January, this whole thing is going to be very, very old news because one, you know, it's certainly possible that we will have these other indictments, much more weightier indictments out of Georgia, out of Jack Smith and the Department of Justice.

[362] this.

[363] So whatever happens in this case, this is not going to be the only case.

[364] This is not going to be necessarily the top line case.

[365] This is going to be, and by the way, you know, that New York case is still pending.

[366] So I think for a lot of the handling, oh, this is terrible, this is going to do anything, just wait.

[367] I think you need to think about how this will look six months from now, seven months from now, eight months from now.

[368] We had the perp walk.

[369] We will always have that perp walk.

[370] We will always have those pictures from inside the courtroom.

[371] But I'm not sure.

[372] that this is going to be the case that we'll be talking about by the end of the year.

[373] I think that's right, especially because under the judge's scheduling order, it's going to go into a bit of suspended animation.

[374] Yes.

[375] So the judge gave a four -month scheduling order for motions, meaning that Trump actually doesn't have to file anything until August.

[376] So we likely won't get a motion to dismiss until then, though we might get some other less important motions.

[377] And then, you know, the government has asked for a, or plans to ask for a trial date sometime in January.

[378] And so we're really not going to have that much litigation in this right up front unless Trump does what I suspect he may do, which is to try to get this into federal court somehow.

[379] So you could try to set up an Eileen Cannon -like situation.

[380] I do think we're going to have a period of perp walk into deep freeze for at least a time.

[381] And it is exactly during that time, I think that we should be expecting a Georgia indictment and or a Mar -a -Lago indictment.

[382] I think the January 6th might be a little further off.

[383] Okay, so here's the other big wildcard.

[384] And it's going back to the snarky comment by Bill Barr about what a mistake it was for the attorney to quit his fat cat job and go to work for Donald Trump.

[385] The other wildcard is Trump's own behavior.

[386] So we have here, you know, many things that are unprecedented about all of this.

[387] We also have Donald Trump in many ways being an unprecedented criminal defendant, utterly undisciplined, prepared to attack the judge, the prosecutors.

[388] You know, members of his family are going after.

[389] members of the judge's family, posting pictures on social media of the judge's daughter, gives that bizarre, unhinged diatribe last night in Mara Lago.

[390] The judge yesterday cautioned him.

[391] Don't foment violence.

[392] Don't say anything that undermines the rule of law.

[393] But it's hard to imagine that Donald Trump will behave rationally or will exercise any self -control.

[394] What's the possible fallout from that?

[395] So I followed this part of the hearing with particular closeness, and for those who want a very detailed account of it, I posted one with my colleague Anna Bauer on Lawfare late last night.

[396] We went through the hearing kind of line by line, and a good 40 % of it was about this issue.

[397] Yeah.

[398] The prosecution very methodically presented to the court.

[399] what Trump has been doing.

[400] The court was concerned about it.

[401] Mr. Barr's friend Blanche, fresh from off his partnership at Cadwallader, defended the former president on grounds that he was very upset and denied that he had been stoking violence or anything.

[402] The judge made clear that he was not prepared at this stage to put in place any kind of gag order.

[403] But, he did say, watch what you do, because if you keep doing this, I may have to revisit that.

[404] So I think the prosecution kind of made its point of raising the matter to the court and putting the court on alert about it, if the judge wasn't already on alert about it, and also having the court put Trump on notice that there would be consequences if he didn't hone it down.

[405] I normally make a near religious point out of not watching Trump's speeches or listening to the sound of his voice.

[406] I actually, for this reason, made an exception to this rule and listened to his statements last night.

[407] He was pretty careful, actually.

[408] Really?

[409] The worst thing he said was that he's before a judge who hates me. But mostly what he's, he said was that, you know, the case has no merit and that nobody believes this case is legit, but he had really toned down the very personal attacks on Bragg.

[410] For now.

[411] For now.

[412] I share your skepticism that he is capable of sustaining that over time.

[413] I very much agree with Will Salatin's point on the show the other day that he only talks about black people this way.

[414] And so imagine that Fannie Willis brings a second case in the next few weeks.

[415] And she is, of course, an African -American woman from Fulton County.

[416] And Alvin Bragg is an African -American man from New York.

[417] I do think two black prosecutors from liberal jurisdictions pursuing two independent cases against him is going to be too much.

[418] for his racist little heart to ignore.

[419] And I do think he's likely to say some very, very inappropriate things that this prosecution will bring to this judge's attention and will force the issue of what is he, if anything, going to do about it.

[420] What can he do about it?

[421] Because I agree that it's unlikely that he's going to impose a gag order on, you know, a former president who's running for office.

[422] I mean, there are First Amendment issues there.

[423] But the prosecution is asking for protective orders, not clear exactly what they want.

[424] A protective order involving some of the discovery.

[425] It is clear what they want.

[426] Oh, it is.

[427] I'm sorry.

[428] We spelled it out again, and for people who want the details, look at the piece we posted on lawfare last night, they are very concerned about the use of materials that they are going to turn over to go after witnesses and to go after people in the criminal justice apparatus.

[429] And so they are asking for three major components.

[430] One is that the protective order, which they're, by the way, negotiating with the defense.

[431] And so this is, you know, they say they're pretty close to having it.

[432] You know, Trump is not going to be allowed to use this material for any purpose other than his defense, i .e., you can't go out and speak to a campaign rally about it.

[433] He's not allowed to disclose it to the media, and he's only allowed to review it in the presence of his lawyers and not to remove it from the presence of his lawyers.

[434] So the point of laying all that out in a protective order is so that a violation of it would be punishable as a contempt of court.

[435] And clearly the intimation of the the prosecution here is we don't believe he's going to observe the terms of the protective order.

[436] Fair bet.

[437] So put it in place now, Mr. Judge, so that when he gives a speech and reads from Michael Cohen's grand jury transcript and, you know, threatens his life, we can come back to you for relief at that point.

[438] Yeah, it certainly would not be in Trump's interest to have the prosecution add more charges that the jury's going to have to consider if he continues to behave this way.

[439] So speaking of the undisciplined way that Trump is behaving, we still have that pending charges about the documents at Marilago, the possible obstruction.

[440] He continues, it seems to say, yes, I committed that crime.

[441] I did it, you know, and I think I was justified.

[442] He said it to Sean Hannity the other day during an interview.

[443] He said it again last night.

[444] He did a complete right.

[445] I mean, these are the kinds of statements that if you're Jack Smith, you have to be pressing, you know, record, right?

[446] Because anything that he says can and will be used against him in a court of law, and he will just not shut up about that.

[447] Correct on all points.

[448] These are admissions, at least as to, I mean, one, of course, question is whether any statement by Trump is reliable in any context.

[449] and that's a complicated sort of epistemological question.

[450] But as a legal matter, these are statements of fact that are potentially admissible and certainly usable.

[451] So there has clearly been substantial movement in the Mar -a -Lago case.

[452] There have been new witnesses.

[453] The Washington Post did some new reporting.

[454] There's suggestions that Jack Smith has developed evidence that Donald, Trump personally rifled through materials that were under subpoena.

[455] A lot of people said that case was dead a few months ago when Biden and Pence's problems arose.

[456] I never thought that case was dead.

[457] The Justice Department does not, and the FBI did not let sleeping dogs lie with respect to, you know, covering up theft of classified material or even obstruction with respect to the retention of classified material.

[458] My assumption is that that case is really, really bad and that it is heading toward indictment relatively swiftly.

[459] I also think the evidence that the January 6th case is proceeding is overwhelming at this point.

[460] There have been a series of former presidential advisors who've had late -night litigations in the D .C. Circuit or trying to prevent their grand jury testimonies.

[461] Mike Pence, of course, has been litigating to prevent his.

[462] These are things that you do sort of toward the end of an investigation.

[463] Now, as you know, there are some complications with prosecuting Trump on this.

[464] So I'm not sure whether this issue is really about a Trump indictment or whether it's about an indictment of a whole lot of the people around him or whether it may be the latter as a prelude to the former.

[465] But I do think the January 6th investigation is really, you know, steam is coming out of the kettle at this point.

[466] And I know that a lot of people have been frustrated with the pace of it.

[467] We have now learned a lot about what has slowed it down over the last couple years.

[468] And I do think it is a very serious problem for them over the next six months.

[469] Yeah.

[470] So for people who are concerned and wringing their hands over the fact that this was the first prosecution and they wish something more serious had been to just wait, just wait a few months because I think that the perspective is going to change rather radically.

[471] Okay, so we have to talk about a little bit of personal news, Ben?

[472] Yes.

[473] You have been suspended from Twitter by Elon Musk.

[474] What happened?

[475] What did you do?

[476] What did I do?

[477] Well, it is now April 5th.

[478] On the morning of April 1st, woke up, and I found that my good friend Matt Tate, who is on Twitter at, as Pone All the Things, was engaged in a delightful April Fool's prank in which he was abusing his blue checkmark by having changed his name to Ministry of Foreign Affairs of the Russian Federation.

[479] He was impersonating the Russian foreign ministry, and he was tweeting hilarious stuff in the voice of the Russian foreign ministry.

[480] I thought it was brilliant.

[481] Matt is a genuine Russia -Ukraine expert, as well as a bunch of other polymathic things.

[482] I thought it was very clever.

[483] And so I immediately, because I have all these wonderful images of things I have projected onto the Russian embassy, I thought I can do that.

[484] So I changed my name to Russian Embassy, USA, impersonated the Russian Embassy for April Fools and tweeted images that I had collected over the months of things I had projected onto the embassy, fun images that people had sent me in support of Ukraine and other such stuff.

[485] In the evening, I was writing my substack dog shirt daily, which is now the only way to follow me on social media unless you're on Mastodon or post -news or spoutable or Facebook.

[486] And I was writing my dog shirt daily, reflecting on this wonderful April Fool's experience.

[487] And I decided I was going to, I had literally just typed, I'm inclined to leave my account this way until I'm banned from Twitter or my blue check mark is taken away.

[488] And then I decided I should tweet that fact.

[489] So I tweeted it.

[490] And within seconds, the account was gone.

[491] So I want to say, if the question is, did I violate Twitter Rules of Service, let me just say I have so little respect for Twitter Rules of Service that I'm sure I did violate them, but I haven't bothered to look them up to figure out which one I will have violated, but I do not deny violating Twitter Rules of Service.

[492] I do not deny impersonating the Russian embassy with intent to deceive and amuse all other people on Twitter at the Russian government's expense.

[493] And if that makes me, while Donald Trump's account has been reinstated, if that makes me unfit to be on Twitter, while the accounts that I was impersonating continue to promote war crimes and genocide, then I'm really comfortable with having been banned from Twitter.

[494] And I just urge people to subscribe to www .orghumeddaily.

[495] That's dogshirt with an R daily .com.

[496] And, you know, all the tweeting that I've been doing, the beast of the day, the good morning image, which is now the good evening image, it's all migrated over to Dogshirt Daily, where Elon the musk rat has no control.

[497] And you have zero interest in groveling to either cat turd or Elon Musk for reinstatement?

[498] Because it turns out you actually have some dignity you wrote?

[499] Yeah, I mean, look, people think because I wear dog shirts and I, you know, joke around and shine lights on embassies that I don't have any dignity.

[500] But I am not going to file a fucking appeal to Elon Musk and say, you know, please, Elon.

[501] I didn't mean to do it.

[502] I'm so sorry.

[503] I'm not sorry at all.

[504] I'm kind of appalled that this sort of, like, you know, self -criticism, kind of Maoist re -education camp of these appeals.

[505] I did what I did.

[506] If it makes me unfit to be on Twitter, fine.

[507] Ben Wittes, editor -in -chief at Lawfare, senior fellow in governance studies at the Brookings Institution.

[508] His books include Unmaking the President.

[509] Former Twitter presence.

[510] Former Twitter presence.

[511] The book is Unmaking the Presidency, Donald Trump's War on the World's Most Powerful Office, and he writes Dog Shirt Daily on Substack.

[512] With an R. Thank you so much for coming on the podcast.

[513] As I said, the introduction to have you the day after the former president does his perk walk, sometime in my youth or childhood, I must have done something good.

[514] So thanks for coming back.

[515] You're a great American, Charlie.

[516] It is always a pleasure, and let's do it again soon.

[517] And thank you all for listening to today's bulwark podcast.

[518] I'm Charlie Sykes.

[519] We'll be back tomorrow and we'll do this all over again.

[520] The Bullwark podcast is produced by Katie Cooper and engineered and edited by Jason Brown.