Jack Smith Calls Trump's Bluff

[0] Welcome to the Bull Work podcast.

[1] Because it's Thursday, it's a new episode of the Trump trials, and it has been a busy week.

[2] Jack Smith goes to the U .S. Supreme Court.

[3] Judge Chutkin puts the case on hold.

[4] And Rudy Giuliani's defamation suit goes to the jury after America's mayor decides that he doesn't want to testify after all.

[5] Meanwhile, in Congress, Republicans move ahead to impeach Joe Biden for, well, TBD, they're not exactly clear.

[6] what the grounds are, but at least they've opened an inquiry.

[7] So we have a lot to talk about today, and we are joined by, and this is rather extraordinary, a newly released Ben Wittes who is live in The Hague, you are in the Hague, fresh from being released from detention by the police in Brussels.

[8] So you've had a busier week than I have busted in Brussels.

[9] This would be your memoir.

[10] Yeah, exactly.

[11] You've got to work to get busted in Brussels.

[12] Now, detention may be at that implies like being taken to a jail.

[13] I was detained at the scene and not allowed to leave for about an hour at the Russian embassy.

[14] I'm not sure what it's more than a stop.

[15] You know, they were contemplating arresting me. And this is, of course, for projecting on the Russian embassy to Belgium, which now that I'm no longer in Belgian custody, I can freely admit, which I actually freely admitted while in Belgian police custody that I did, that I'm proud of, and that as Christopher Walkin says in King of New York, I feel no remorse.

[16] So yeah, I projected on the Russian embassy and the day before that on the French Senate.

[17] And the French police did not seem to notice or mind projections on the French Senate.

[18] The Belgian police very much minded my projecting on the Russian embassy, which seems to have called it in as a laser attack on the embassy.

[19] Wouldn't you be curious to know what your security file looks like?

[20] I mean, you're already kicked off Twitter.

[21] I just want to keep you off the no -fly zone in the EU.

[22] Just to be clear, I have never been charged with any, even infraction in the EU.

[23] And my relationship with the Estonian police and the Finnish police is quite cordial.

[24] And I think by the time I left the informal custody of the Belgian federal police yesterday, we were on pretty good terms.

[25] I introduced them to my laser projector.

[26] And I think we got along very well.

[27] And it would have helped if I could speak French or if the Belgian police had anybody who could speak English on the scene.

[28] That would be helpful.

[29] That would have been helpful.

[30] I think we would have gotten along better.

[31] But we did fine.

[32] And I'm going to meet the Dutch police.

[33] night, I'm sure.

[34] And so, you know, if they're, oh, there they are.

[35] I don't know if you can hear them.

[36] They're driving by my hotel.

[37] No, if, if, you know, for some reason, when we say we'll be back next week and we'll do this all over again, I don't show up next week.

[38] Just check for me in Dutch prisons.

[39] If any of our listeners happen to be in any police station, anywhere in Europe, just look around because they probably have Ben's picture up on the wall somewhere, just, you know, He's coming.

[40] Although I was bitterly disappointed yesterday when they looked me up, this woman, a cop who looked me up and reported back, said, you are unknown in Belgium.

[41] And I felt so insulted, you know, but it turns out what all she meant was that I didn't have a criminal record in the EU.

[42] Yeah.

[43] You are now known in Belgium and about to be known in the Netherlands.

[44] Okay, so before we get into all of us, I want to talk to you a little bit about.

[45] the impeachment before we get to the big case in front of the Supreme Court and whether you agree that this is the big one, Jack Smith's motion to have the court decide the question of presidential immunity.

[46] Before we do this, I have given over the years a great deal of shit to my good friend Paul Ryan for his compromises and his Faustian bargains with Donald Trump.

[47] He has tried to finesse all this.

[48] And he and I had a back and forth earlier this year about his opposition to Trump, which was mainly based on his electability rather than his fitness.

[49] I have to play a little sound bite.

[50] Here is Paul Ryan.

[51] I'm not sure that this is the strongest criticism, but he clearly is upping his game.

[52] So let's just listen to Paul Ryan doing an interview over the last 24 hours.

[53] How will history regard people like Liz Cheney and Adam Kinzinger and people of that, their ilk?

[54] Maybe it's just the two of them.

[55] Yeah, I mean, I think, I mean, they're friends of mine, I think they called out, look, Trump's not a conservative.

[56] He's an authoritarian narcissist.

[57] So I think they basically called him out for that.

[58] He's a populist authoritarian narcissist.

[59] So historically speaking, all of his tendencies are, you know, basically where narcissism takes him, which is whatever makes him popular, makes him feel good at any given moments.

[60] And he doesn't think in, in classical liberal conservative terms, he thinks in an authoritarian way.

[61] And he's been able to get a big chunk.

[62] with the Republican base to follow him because, you know, he's the culture warrior.

[63] And so I think Adam and Liz stepped out of the flow and called it out and, you know, paid for it.

[64] Paid for it with their careers.

[65] But I think, again, back to my earlier point, I don't think you can be really very good at these jobs unless you're willing to lose these jobs.

[66] And there has to be some line, some principle that is so important to you that you're just not going to cross so that when you're brushing your teeth in the morning, look yourself in the mirror, you like what you see.

[67] Hmm.

[68] Okay.

[69] Good.

[70] And I'm not going to say things like too little too late, but, you know, boy, I wish you would have said that back in fall of 2016.

[71] I wish he would have looked in the camera and said, okay, you know what?

[72] I have this job, but I need to be willing to lose it.

[73] And I want to look at myself in the mirror.

[74] And this guy is not a conservative.

[75] He is a narcissistic authoritarian.

[76] So I just wanted to give him a shout out for that.

[77] Absolutely.

[78] I want to be Will Salatin here and say, welcome to the fight.

[79] And, you know, it's important when people are ready to join you to not push them away.

[80] I will just say the only word of criticism I will say of that statement is that I wonder whether he understood it as self -criticism.

[81] You know, when he is praising Liz Cheney and Adam Kinney.

[82] Kinsinger, by the way, who joined a special military operation against the Russian embassy in Washington the other day.

[83] If you're praising them and you're saying there has to be some point at which you, I think his word was get out of the flow and because there are some lines you can't cross, do you say that?

[84] Is he being just a pundit now?

[85] Or does he understand that that is something he did not do?

[86] And that these words would have been enormous.

[87] helpful and meaningful as Speaker of the House.

[88] I don't want to criticize him for saying those words now.

[89] I'm just wondering, does he understand himself to be criticizing himself now?

[90] Because that would be significant.

[91] I don't know the answer to that, but my instinct is that if he's not, he's moving in that direction, which is positive.

[92] Okay, so let's talk about the impeachment vote.

[93] Every single Republican voted to open an inquiry into impeaching Joe Biden, although there's no consensus.

[94] There's no clarity about what they're actually impeaching him for, what the inquiry is about.

[95] So here's a little soundbite from Manorajou, who's talking to three Republicans from swing districts.

[96] This is David Valado, who actually voted for the Trump impeachment, Mark Molanaro of New York and Tony Gonzalez of Texas, where they're basically saying, yeah, it's like, we'll get the evidence later.

[97] It's too early to tell.

[98] Let's just play a little bit of a montage here.

[99] It sounds like you're not sold yet on whether to actually support, removing, charging, and then removing a president from office.

[100] That's a very different level.

[101] Obviously, the inquiry is the beginning of it, and where we end up, we'll have to figure out when we get there.

[102] But what we're talking about now is an inquiry to ask some serious questions and force the administration to respond to him.

[103] I did not come to Congress to expel a member of Congress nor impeach a president, but I have a constitutional responsibility to provide the oversight and accountability.

[104] Do you think there's evidence yet, act of corruptly, to benefit his son?

[105] I don't dive into that piece of it too much.

[106] That's not what, what I guess gets me going on it.

[107] I look at the border and Afghanistan is the things that really upset me, and I'd like to see that be included in the inquiry, but I think it's kind of too early to tell.

[108] Just kind of too early to tell, Ben.

[109] Yeah, I have a suggestion for these guys.

[110] In fact, for Congress in the future.

[111] It seems to me that if you're not sure whether you're impeaching Joe Biden for Afghanistan withdrawal, or for the border, or for allegedly corrupt engagements with his son, of which you have no evidence, or just as a general oversight mechanism, because you have serious questions and you want to force the administration to answer.

[112] Clearly, our new policy should be to open an impeachment inquiry on January 20th at 1201 that is authorized for the entirety, and then we do it in the next Congress, and that you should just sort of always have.

[113] an open impeachment inquiry because otherwise, you know, the president might get away with something and you might not have time to open an impeachment inquiry.

[114] So that's my reaction to that.

[115] It's so dumb that if you took it seriously, you would have to say, well, there should always be an open impeachment inquiry against every president.

[116] I think maybe that's where we're trending.

[117] Hey, but points for honesty on all this for Troy Nell's.

[118] E -H -L -S, I'm going to mispronounce all these guys' names, a MAGA Republican from Texas who was asked.

[119] He's outside the Capitol today, and he's asked about this.

[120] And I'm going to give him points for giving the honest answer, but this is all about.

[121] Let's play that.

[122] Representatives, what are you hoping to gain from an impeachment inquiry?

[123] All I can see is Donald J. Trump, 24, baby.

[124] Yep.

[125] All I can say is, yeah, okay.

[126] Like, just cut through all the shit, the evidence, all this stuff.

[127] They're doing this because Donald Trump's sitting down in Maragawa and he's got a short list and this is one of his demands.

[128] And if you don't want to go through the speaker, you know, shitstorm again, you have to do this.

[129] You know that if Mike Johnson did not push this through, we would be right back to where we've been like most of the year.

[130] Right.

[131] So Troy Nell's credit, you know, credit for honesty.

[132] There is one other important point to make about impeachment of Joe Biden, which is if you're actually going to do it, it rather than open and a frivolous impeachment inquiry.

[133] That's a freebie.

[134] But writing an article of impeachment is not a freebie because you can't actually write an article of impeachment with no facts in it.

[135] You have to say that there's some.

[136] But you can.

[137] How do you do that?

[138] This is a party that doesn't even have a platform, you know.

[139] Okay, but you're going to try him on something.

[140] You have to allege that he committed a high crime and misdemeanor.

[141] Yeah, just allege.

[142] He committed high crime and then just like throw stuff in.

[143] Just take some truth social post, cut and paste and put him in and have the vote.

[144] And then it's done, right?

[145] So I don't know.

[146] Right.

[147] And the senators would love you for that, the Republican senators.

[148] Yeah, exactly.

[149] All right, switching to a much, much more important issue.

[150] This is, I wrote that this was the big one.

[151] I wanted to get your take on this.

[152] Jack Smith goes straight to the Supreme Court on Monday.

[153] He asked the Supreme Court to rule on Trump's argument.

[154] that he is immune from prosecution.

[155] Judge Tanya Chutkin has already ruled on this.

[156] She rejected that argument.

[157] Trump has appealed a matter to the D .C. Court of Appeals.

[158] So this move by Jack Smith has been described as bold.

[159] It was unusual for a couple of reasons.

[160] You know, number one, Smith asked the justice to rule before the appeals court ruled on the question of whether the Constitution bestow as a president with immunity from federal prosecutions for crimes he committed while in office.

[161] And second, he's telling the Supreme Court to move with exceptional speed.

[162] And within a couple of days, the court agreed to decide whether to take up the case before the appeals court.

[163] So ordered Trump's legal team to respond by next Wednesday.

[164] Now, so I want to be clear here, this is not SCO disagreeing to take up the case now.

[165] It's about deciding whether it's going to do it.

[166] But talk to me about this one, because this one seems like the big one for multiple reasons, right?

[167] Or at least a big one.

[168] I mean, there are a few others that are maybe just as big.

[169] But if you're asking the question, is Donald Trump going to go to trial on January 6th charges before the election?

[170] This is where the action is on that question.

[171] And it's for a very simple reason, which is he claims presidential immunity for technical legal reasons that we don't need to go into.

[172] he is entitled to an immediate appeal of Judge Chuckins' denial of that.

[173] And so there's two ways Trump can win here.

[174] One is that the Supreme Court could actually agree with him, that there is presidential immunity.

[175] I think that's quite unlikely.

[176] But the second way he can win is if they don't move quickly.

[177] And this thing gets bogged down in two layers of federal appeal.

[178] You have a lengthy process at the D .C. Circuit or a semi -lengthy process, and then you have a lengthy process at the Supreme Court that because you've, you know, eaten up some time in the D .C. Circuit, the Supreme Court doesn't actually have time to hear this term, and so it kicks it over to next term, and then all of a sudden you can't bring him to trial, even when you win as Jack Smith.

[179] And so what Smith has executed here is, you know, what they call and bridge a jump shift.

[180] And it's basically, he says, I've got two layers of review here.

[181] I'm just going to signal I am super, super confident in the hand I'm holding.

[182] And by the way, there's an exigent reason for speed here, which he can't be entirely honest about.

[183] But the reason is the November election.

[184] And so I am going to say to the Supreme Court, pardon my language, tell the D .C. Circuit to go fuck itself.

[185] You guys deal with this yourself.

[186] I want oral argument tomorrow and I want a decision as fast as you can give me one.

[187] What that's saying is I have a March 5th trial date and I need that trial date because this man could become president again and mix this case.

[188] And I need this trial date.

[189] And the only way I'm going to get it is if you guys act quickly.

[190] And so he's basically, laying those cards on the table without quite laying them on the table.

[191] And that's what this is about.

[192] And it's a very, very important question.

[193] Trump has succeeded in potentially delaying the trial.

[194] Judge Chutkin has put everything on pause.

[195] So if the Supreme Court either does not grant cert or drags its feet on all of this, in effect, it's kind of a backdoor victory for Trump, right?

[196] Because it pushes that date off of March.

[197] Yeah.

[198] So just to be clear, everything in a meaningful sense, everything was on hold the day he appealed this decision.

[199] She cannot proceed with the body of this case.

[200] There's some argument around the edges about whether she can proceed with ancillary matters or not even that.

[201] She can't proceed with the case while the D .C. Circuit or the Supreme Court has it.

[202] And so the question is, how long are they going to hold on to it?

[203] Okay.

[204] So there's two tracks here, the process track, whether they're going to grant this, how fast it goes.

[205] And then there's the substance track.

[206] And Trump is arguing basically two major things.

[207] And you correct me if I'm wrong on all of this, that he is immune from any criminal liability for his acts as president.

[208] And he's also arguing that he has double jeopardy protections because he was impeached for similar crimes.

[209] Now, I am not the lawyer here, but my sense is there's a lot of case law that would suggest that he's unlikely to win on the merits.

[210] I'm just on the merits, not talking about the schedule or the process.

[211] Let's treat those two issues separately.

[212] There is zero chance he is going to win on the double jeopardy question.

[213] That is a frivolous claim.

[214] Double jeopardy is the right not to be tried twice criminally for the same criminal offense.

[215] An impeachment is not a criminal proceeding.

[216] That's why when we impeach people, they don't get their heads cut off at the end of the impeachment like Charles I did.

[217] Right.

[218] Traditionally in the United Kingdom, the impeachment was literally a criminal trial, and the result of it was the execution of the office holder.

[219] We don't do that because it's not a criminal trial.

[220] And the Constitution actually says specifically that after an impeachment, you can be held to account in the normal course of business.

[221] Okay.

[222] That's what I wanted to ask you about.

[223] It's right there in the Constitution, right?

[224] I mean, yes.

[225] And he has, he has.

[226] He has a rather capricious reading of that phrase.

[227] So the double jeopardy component of this is trivial.

[228] The presidential immunity issue is not trivial.

[229] And it's not that I think he's got a good argument, but there's actually zero case law on this because we have never indicted a president, former president before.

[230] And so there is no support zero for the idea that the president is immune from criminal matters.

[231] But then there wouldn't be any such support because, after all, we haven't tested the proposition before.

[232] So the question boils down to, are you going to extend the immunity that the president has in the civil context?

[233] You generally can't sue the president for conduct related to his presidency.

[234] Are we going to extend that into the criminal arena.

[235] And the answer to that question is I cannot count three votes for that on the Supreme Court.

[236] And I'm not even sure I can count any.

[237] But, you know, sometimes the court surprises you.

[238] So I would not describe that as a trivial question.

[239] I've been flagging it as a potentially important question.

[240] Well, it could be a landmark decision.

[241] I mean, it really does change the constitutional balance if, in fact, the court says that, yes, the president is immune.

[242] That is a BFD.

[243] Yeah, it's kind of like saying the president's above the law.

[244] I think the answer is it's not going to happen.

[245] There are not five votes on the Supreme Court for that.

[246] It's an extraordinary proposition.

[247] But it can suck up some time in resolving it.

[248] Now, I will say that the Supreme Court is capable of handling matters like this with extraordinary speed.

[249] Everybody remembers the Nixon tape case.

[250] Well, not everybody.

[251] Can I just remind people of this?

[252] Okay, so I mean, this is, you know, United States versus Nixon's 1974.

[253] And this is probably the most famous, you know, before judgment cases, right, involving this is Nixon's refusal to turn over the tape recording to the special counsel.

[254] And they went right to this case.

[255] Smith cited that case, arguing the Trump matter also involved a case presenting similarly consequential issues of presidential privilege.

[256] So he went right back to Watergate for that big case.

[257] And cert before judgment is rare, but it's not unheard of.

[258] And it's particularly not unheard of when a special counsel is trying to bring somebody to trial in the context of an extraordinary claim of executive authority.

[259] And so I do think he's got good historical.

[260] echoes here.

[261] What he also mentions in the brief, which people forget about U .S. v. Nixon, is that it was decided in 16 days after oral argument.

[262] And it was unanimous, right?

[263] It was unanimous decision.

[264] It was unanimous.

[265] It was written by the Chief Justice.

[266] And, you know, I do think that when the Supreme Court wants to handle one of these cases in a highly expeditious fashion because a president is, in that case, a sitting president, in this case, a former president is trying to, you know, use a claim of executive authority in order to do something truly scary.

[267] The Supreme Court is perfectly capable of acting decisively and quickly in that regard.

[268] The problem here arises because there are certain justices, particularly Justice Alito, who may or may not have some sympathy with this idea, but has been both he and Justice Thomas have at times, you know, sort of sounded more sympathetic to Trump executive authority claims in the specific context of criminal proceedings than I would have expected.

[269] And I know some listeners are going to say, well, what did you expect?

[270] But, you know, I'm still old -fashioned and expect people to act like judges.

[271] So there may be some sympathy for this that would cause people to not move as quickly as possible or want to think very hard about the issue.

[272] But I agree with you, if Jack Smith can pull this off and get the Supreme Court to rule decisively and quickly and cut the D .C. Circuit out of the equation, that would be an extraordinary boon to the idea of bringing Trump to trial in a fast and serious way.

[273] And the flip side is if the court, and I agree with you that I don't think they're going to do it, but the flip side is if five justices decide that, yes, in fact, the president does have this kind of extraordinary immunity.

[274] Then we live in a different world that we understood.

[275] That is exactly right.

[276] We live in a completely different world.

[277] I can't approve on that.

[278] Okay.

[279] So in a separate, but related matter, the court also agreed to hear an appeal from a January 6th defendant.

[280] defendant, this appeals a challenge to the federal law that makes it a crime to obstruct or impede an official proceeding.

[281] So it's not directly related to the Trump charges, but it's obviously related to January 6th.

[282] I mean, so those charges, the obstructing or impeding an official proceeding, have been brought against one of 300 defendants, including Trump, 152, defendants have been convicted at trial or have pleaded guilty to the charge.

[283] Now, this guy, this one defendant, Joseph Fisher is arguing that the obstruction statute only applies in cases where defendants had taken some action with respect to a document, record, or other object.

[284] The district judge agreed, but the court of appeals ruled.

[285] The statute applies to all forms of obstruction.

[286] So talk to me about this because a lot of legal experts are saying that while a Supreme Court ruling could impact the charges against Trump, this one won't slow the proceedings down.

[287] But obviously, you can can't really separate the implications of the court taking this particular case.

[288] Yes.

[289] So first of all, there are many good, non -corrupt reasons why the Supreme Court would have taken this case.

[290] And one of them is that a majority of this court has a suspicion of very broad readings of obstruction statutes.

[291] And there are a series of cases in which the court has you know, sort of read some of these statutes more narrowly than their text would have suggested.

[292] In addition, while all of the district judges except one agreed on the broad ruling of this in the January 6th context, the D .C. Circuit was quite split.

[293] And it's not to me a completely crazy thing that the Supreme Court says, like I wasn't all that surprised that they took it.

[294] This would have, if you adopted the narrowest reading of this statute, it would have terrible consequences for a lot of the sort of mid -level serious January 6 cases.

[295] The top most serious are the ones where they're, you know, beating people or engaged in seditious conspiracy, right?

[296] And the bottom level are these cases where they're trespassing or, you know, but there's this middle tier where this has been one of the workhorse statutes.

[297] And so the question with respect to a lot of these mid -level guys is, and they are almost mostly guys, the question is, you know, relatively few of them would walk free entirely, but you would kill the lead case on a bunch of these matters.

[298] And it's not a small number.

[299] With respect to Trump, I think the issue is a little bit more muted because, first of all, the statute is it is potentially at issue, but there's a lot more to the indictment than this.

[300] So it might cause you to have to narrow the indictment in some way, depending on how they ruled.

[301] This is a court composed of extremely politically sophisticated people.

[302] You know, say what you will about John Roberts and Brett Kavanaugh, the non -hard line conservatives, right, to some degree, Amy Coney Barrett, although criminal law kind of isn't her thing.

[303] But these are not people who are going to want to have reached out and grabbed a case to narrow a statute to aid Donald Trump.

[304] That's a bad look for them.

[305] And so here is, here is my prediction.

[306] However this case comes out, John Roberts, Brett Kavanaugh, and Elena Kagan will all be on the majority opinion.

[307] Like, I don't think this is going to be a six -three conservatives intervene to help Trump case.

[308] I think there's a, this is an area where, you know, you're going to have a genuine effort by the strong center of the court, which has, you know, conservatives and liberals to work together on this.

[309] A couple other things just for listeners who don't know this, 85 % of the serious material that has been written on the subject of Fisher has been written on lawfare, a lot of it by my colleague Roger Parloff.

[310] And we are actually having a discussion this afternoon at 4 o 'clock, which I guess most people won't have heard this by then on our Trump trials and tribulations live stream.

[311] I asked Steve Vladick, who's both very sophisticated on this issue, but also a really knows the Supreme Court in a way that most law fair people do not.

[312] And so he and Roger are both going to be on this.

[313] It'll be on a podcast on Saturday, and it'll be live and on YouTube as of this afternoon.

[314] So for people who want to do a real deep dive on Fisher at the Supreme Court, do join us for that.

[315] Outstanding.

[316] Okay, so I want to get to the Rudy case in just a moment.

[317] One more question, though, about Jack Smith and this January case.

[318] One of the big stories this week was when Jack Smith revealed his plan to use Trump's phone data at the trial.

[319] Now, this is from Politico.

[320] Smith plans to call an expert witness who extracted and reviewed data copied from Trump's own phone as well as a phone used by another unidentified individual in Trump's orbit.

[321] This could reveal Trump's Twitter habits, which aides had access to his account, who wrote some of the key tweets like Mike Pence didn't have the courage to do what should have been done.

[322] So how significant is this?

[323] I mean, is this just what you would have expected as part of his due diligence?

[324] Or does this potentially fill in some of the huge gaps of what Trump knew, what he did, what he didn't do during those hours of January 6th?

[325] Look, when this case goes to trial, the amount of new information about Trump's state of mind and about his micro behavior, we know his macro behavior, we can have no new information about that.

[326] But at the level of details, the amount of new information is going to be just extraordinary.

[327] Really?

[328] Oh, yeah.

[329] I can say that with absolute confidence for three reasons.

[330] One is that the January 6th committee didn't hear from a bunch of people, you know, because they stiffed it, or because they went and then asserted executive privilege about certain things, right?

[331] even a bunch of the lawyers, Pat Philbin and Pat Cibolone, like there were all kinds of questions that they wouldn't answer the committee.

[332] They answered those questions to the grand jury because they had no legal basis not to.

[333] And so there's just an enormous amount.

[334] Oh, and by the way, Mike Pence, right, refused to, although he had sort of surrogates testify.

[335] Mark Meadows never testify.

[336] Huge amount of material that Meadows Trump, right?

[337] What did Trump know?

[338] What did Meadows tell him?

[339] Right.

[340] We're going to learn all that.

[341] And then the second reason is because there's all kinds of data that the Justice Department can get that the committee can't get, right?

[342] And that's what we're talking about here.

[343] And then, by the way, a third reason is that I can't tell you this, but don't bet against it.

[344] there are going to be people who, you know, do what Cassidy Hutchinson did and not because they're basically good people like Cassidy Hutchinson, who I think is probably basically a good person, but because they got threatened with prosecution.

[345] And you're going to have people testify who have not testified before.

[346] There is nothing like the exquisite pressure that the federal government can bring to bear on somebody who has criminal exposure.

[347] More flippers.

[348] You know, so when this case goes to trial, we are going to learn just an extraordinary amount every single day.

[349] We're going to learn the technical term is a shitload, and this story is one small component of that.

[350] But, you know, the feds go through your phone.

[351] That's one of the things the feds do that the January 6th committee can't do, right?

[352] the feds lean on people who are close to you and remind them that, you know, they might not want to be indicted as well.

[353] People are going to be surprised how much we still have to learn about January 6th.

[354] This feels a little bit like an early Christmas present, I have to say.

[355] You got to get past what you call the big one.

[356] But I can promise you, if we can get this case to trial, you don't write an indictment like that.

[357] and not have a shitload.

[358] All right.

[359] Speaking of shitloads, let's talk about Rudy, which is such a sad, outrageous case in so many ways.

[360] So the headline today was that Rudy was supposed to testify, decided not to, obviously, on advice of counsel.

[361] This is just the damages portion of the case.

[362] He's basically already lost the defamation case.

[363] It's $41 million in damage.

[364] This is the case where he's already been found to have intentionally inflicted emotional distress on these two election workers, Ruby Freeman and Shane Moss.

[365] I think many of our listeners will recognize them.

[366] He's also been found, as formerly found, to have engaged in a conspiracy with others when he publicly accused them falsely of election fraud related to their work, counting absentee ballots.

[367] This week, I have to say the testimony was very dramatic, very compelling.

[368] Ruby Freeman took the stand to describe how Giuliani falsely accuser of manipulating ballots in the election, a smear campaign that prompted a torrent of threatening messages and just basically kind of destroyed her life.

[369] And then the president of the United States picks up this lie in his call with Brad Raffensberger.

[370] And at that point, the threats became much, much, much worse.

[371] And, you know, Freeman's testimony, she described what it was like.

[372] She says, I just felt like, really, this is the former president talking about me, me, how mean, how evil.

[373] I just was devastated.

[374] I didn't do anything.

[375] It just made me feel you don't care that I'm a real person.

[376] And then using 45 instead of Trump's name, she continued.

[377] He didn't know what he was talking about, really.

[378] He had no clue what he was talking about.

[379] He was just trying to put a name to somebody stealing ballots, which was totally a lie.

[380] Trump used her name in the call with Raffinsberger 18 times.

[381] And Trump was basically echoing the language, the lies from Rudy Giuliani's team.

[382] So, you know, Freeman talks about how she left her house after the FBI, told her her name had been on a death list.

[383] The death list was likely kept by oathkeeper Thomas Caldwell, who was arrested shortly after the attack on the Capitol.

[384] And then she reads some of the threats she received.

[385] Kill yourself now so we can save ammo.

[386] Or I hope the federal government hangs you and your daughter from the Capitol Dome.

[387] You treasonous piece of shit.

[388] I pray that I will be sitting close enough to hear your next snap.

[389] She's still, to this day, she says, now wears a mask and sunglasses outside her new home just to avoid being recognized.

[390] And her daughter, Shea Moss, also, again, talks about how she never goes out alone.

[391] Her son failed his ninth grade classes after he started getting harassed.

[392] She talked about how she'd worked herself out of the mail room, you know, to get to the elections office.

[393] And this was, you know, one of her great dreams.

[394] And she becomes a complete pariah.

[395] Because of Rudy Giuliani's, why?

[396] And the way that Donald Trump amplified that lie.

[397] I just remember the day they testified before the January 6th committee.

[398] And I think I wrote something like, Donald Trump did this.

[399] These are the people who Donald Trump maligned who he was willing to destroy because he and his supporters either just completely did not understand how the votes were counted or believe somebody who also didn't understand what they were seeing in the video or just didn't care and just decided that it was so important to lie about this election that they were prepared to spread these malicious falsehoods about these two women whose lives they destroyed.

[400] And now, Rudy Giuliani is facing $40 million in damages.

[401] So, Ben, this has been an ugly, ugly case.

[402] And your thoughts on the case before I have another question for you about Rudy.

[403] You know, so you've just said what's important about this case, which is that, you know, These are two of the, and there are others, dramatic victims of this crime.

[404] I mean, there's, you know, a generalized injury to the polity and a threat to democracy, right, which we all experienced.

[405] Right.

[406] But there are individual Capitol Police officers who were killed or who were very badly injured.

[407] There are lots of others who were traumatized.

[408] There are congressional staff who nobody talks about.

[409] who, you know, were hiding in closets in a fashion that's, you know, not actually something you should have to go through as a congressional staff to be basically in a lockdown situation.

[410] And then there are people like Ruby Freeman and Chey Moss who, I guess, are, you know, kind of like the Brad Raffensberger and Gabe Sterling's situation, only they're not politicians.

[411] They're not people who, you know, who put themselves out there.

[412] They're just public servants who were trying to do election work.

[413] And in both of their cases, of course, there's a very substantial racial component to this, which is if you listen to the words that Rudy Giuliani spoke about them, you know, he talked about them in languages like hustlers and like they were doing some kind of a dirty deal in ways that, you know, I'm just sorry.

[414] I just don't believe Rudy Giuliani would have said that if they were two guys who looked like us.

[415] So I think it is a reminder that not all accountability is criminal accountability, and I want to specifically call out in a positive way our friends that protect democracy who represent Seymos and Ruby Freeman.

[416] and, you know, we think about these criminal cases as the means by which there is accountability for something like January 6th or the post -election period, but civil liability is part of the picture too.

[417] Bar disciplinary proceedings are part of the picture.

[418] Legislative changes are part of the picture.

[419] It's a very complex picture, and I do think this is an important component of it.

[420] know that it's, it's probably pointless to try to get inside the, the mind or what's left of the mind of Rudy Giuliani.

[421] But, you know, he basically conceded over the summer that, you know, everything he said was a lie.

[422] But then he is giving interviews outside the courthouse where he is repeating saying, you know, that everything he said about them was, in fact, was true, which, of course, the judge is like shaking her head going, okay, this is like another act of defamation.

[423] So I guess the question is, he's not going to testify.

[424] It's likely that he's going to be hit by a very, very large judgment.

[425] We've seen this before in other cases.

[426] What happens if he said, are they going to see any of this money?

[427] Is Rudy Giuliani ever going to pay up?

[428] Because I guess the question is, you hope there's accountability, but some of these guys like Alex Jones find ways to avoid the accountability.

[429] Well, so, you know, first of all, he has famously got major debts, right?

[430] Yeah, he's broke.

[431] He's broke.

[432] And so one question, you can't make somebody pay a giant judgment.

[433] that they don't have the assets to pay.

[434] I don't know enough about his financial picture or how judgment -proof he is or isn't at this point.

[435] Look, the likelihood that they'll collect everything is very small.

[436] The likelihood that they'll collect nothing, I suspect, is also pretty small.

[437] Ben Wittes is editor -in -chief of Lawfare, Senior Fellow in Governance Studies at the Brookings Institution.

[438] He is joining us from The Hague in the Netherlands.

[439] He also writes, as you know, dog shirt daily on Substack.

[440] Good to talk with you, Ben.

[441] Great to talk to you.

[442] We will be back.

[443] You know, the last time I said this, it turned out I was lying because we weren't back next week.

[444] But we will be back next week and we will do this all over.

[445] Next year.

[446] No. Oh, we're not going to.

[447] You and me. You and me, this is it for, we are going to be diving into 2024, the year of Trump's trials.

[448] We will not be back next week and do this all over.

[449] We'll be back in the new year and do this all over again.

[450] Exactly.

[451] Thank you all for listening to today's Bullwark podcast.

[452] I'm Charlie Sykes.

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

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