Advisory Opinions - Indictment Watch: A Difficult Case Against Trump

Episode Date: August 2, 2023

Special counsel Jack Smith brings another round of charges against Donald Trump, this time concerning the former president's attempts to subvert the results of the 2020 election. How does this indictment compare with the previous two? Will prosecutors be able to prove Trump was knowingly lying about the election? Does the indictment change anything for Trump? And is the country ready for this trial? Plus: -Naming the co-conspirators -Weighing up the other indictments -Trump's campaign boost -An encouraging end note on our justice system Show Notes: -The Collision newsletter -David's column Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We're gonna get right into it. This is an emergency pod that's being recorded at our normal podcast time because finally something

worked out for us, I guess. But David, I just want to summarize the mood of the podcast today. I would say it's tired. I think we're both a little tired. We were up late last night writing separately, but then I saw yours and got cranky about it and added it to mine as a call and response. You were up super early then for Morning Joe, so early, in fact, that you've resorted to Diet Dr. Pepper, which is the drink of the gods. I mean, look, okay. I would never, ever disparage Diet Dr. Pepper except before noon. So

drinking it before noon in lieu of coffee, it's just, no, we're out of coffee, Sarah. We're out of coffee. Got up at 5.30 AM form. for morning, Joe. What's Lila even doing there? Seriously, this kid is two and a half at least. What a free one. I mean, come on. Yeah, it's ridiculous. So found out midnight last night, no coffee. Okay. I don't want to do this. So I just finished taping, um, a remnant with Jonah. Uh-huh. We were going to tape it about something totally different, but then of like, of course we have to talk about the indictment. And so he opens the podcast and I'm like, trees, trees are interesting. Let's talk about trees. And Jonah's like, um, it kind of sounds like you don't want to talk about this indictment. And let me guess why. And then he like psychoanalyzes me to a T. It was so deeply concerning. Um, but he's 100% right. I don't want to talk about this indictment.

And why? Well, I'm curious what you think. Are you pumped today? What's your vibe check? Okay. Okay. Well, okay. So before we get to your vibe check, I'm tired. I would actually say a tiny bit discouraged. Yeah. I think that's where, I think that's some of the feeling that I have. discouraged. Yeah, I think that's where I think that's some of the feeling that I have. Yeah. And it's multiple fronts, actually. So we can actually dive into it. So it's like leaning a little bit towards discouragement along multiple fronts, even though, to be clear, I think this was an indictment that should have been brought. I've just got a lot of thoughts,

not just about the indictment, but also how this will play. So I think this will be one of the episodes that you and I are going to disagree on a lot, but at the margins, you know what I mean? Right. So like, remember back, actually, this is like the topic that we disagree on the most. I think the last time we had a podcast like this was when we were talking about incitement and the crime of incitement and Donald Trump related to January 6th. We agreed on a bunch of the big picture stuff, but when it got down to the nitty gritty, we disagreed on whether anything Donald Trump did

on January 6th crossed the line for criminal incitement. You were like, yeah, I think so. And I was like, no, I don't think so. It was a violent disagreement. like, yeah, I think so. And I was like, no, I don't think so. It was a violent disagreement. It was violent. It was really one of our rougher moments, I'd say. This is going to be the same today. Yeah. It'll be similar, I think. It'll be in degree, not in kind. But I just recorded. So I've had a busy morning. You did Remnant this morning and were up late last night. I was up late last night, did Morning Joe, and then recorded something for New York Times Audio. And I said this, I said, there is a lot of stuff in that indictment that is horrible. And horrible is not a synonym for illegal. Yes. Oh, that's funny. I had

a similar line. I think I used outrageous and outrageous is not criminal. Outrageous might be impeachable. Outrageous is impeachable. It was impeachable and should have been convictable. Okay, let's back up for a second. We have a new indictment coming out of a DC grand jury. This is the third part of the special counsel's mandate from Attorney General Merrick Garland. I want to back up a little bit because six months, a year ago, we had every indication from the Department of Justice that Merrick Garland was not interested in pursuing criminal charges against Donald Trump related to January 6th. But in true Donald Trump fashion, I can trace everything that's happened to his own actions.

So you then had the documents down in Mar-a-Lago that Donald Trump was refusing to turn over. That leads to the FBI executing a search warrant on his home. At that point, it sort of forces the Department of Justice's hand at the point they've just executed a search warrant. Like, are you, at the point they've just executed a search warrant. Like, are you, what, what are we doing here? Uh, so then Merrick Garland decides that they need to at least investigate whether crimes were committed around that and that he needed to appoint a special counsel to do so based on the DOJ regs on conflicts of interest because of Donald Trump's potential, you know, what this, the second Donald Trump announced for president, there was a potential conflict of interest. Then Mayor Garland picks Jack Smith.

And Jack Smith, it's just worth a second on his reputation heading into this. Jack Smith is an aggressive prosecutor. Just super aggressive. He is a dog with a bone, man. If he gets his sights set on you, you're getting charged with something. And so that was the first time you and I talked about it where I was like, oh, well, this does change the odds of him getting charged around January 6th. Because while I don't think most prosecutors would want to do this, Jack Smith, this is like right up his alley. He's doing it. He's doing it.

I also think it's worth noting because Rich Donahue was someone who I worked with at the Department of Justice during the Trump administration. He was a political appointee, experienced prosecutor, all of the things. He's known Jack Smith for a long time. Interestingly, David, he has described his personal politics, what he believes Jack Smith's personal politics to be, as center-right. Yeah. Which is not at all surprising if you look at his background, like, hey, prosecutor. It would

probably come down a little bit more to our big C conservative versus small C conservative versus Republican in terms of where you're putting him on that center right spectrum he's a law and order guy he's a you know justice is my load star guy that's often going to put you on the center right of the spectrum but a lot of people are now not going to recognize that as necessarily conservative anymore i just think it's worth noting like this is not a progressive we can quibble over the definition of conservative here. So fast forward then, Jack Smith unveiled four charges against Donald Trump. There were six unindicted co-conspirators, and there were four buckets of topics related to those charges.

The number of charges and the number of topics are coincidentally the same, but it is not one for one. They're not to be confused. We're going to go through the charges. We're going to go through the topics. We're going to go through the unindicted co-conspirators. Okay, so that's my intro, David. Where do you want to start? Yeah, so that's a great intro. And so let me, I think we could kind of structure it like this.

We could say, look, okay, what are the strengths and weaknesses as a matter of law and fact here in these four charges? And just to sort of explain for a minute my vibe of discouragement, it was multifaceted. One was just reading the indictment and reliving the entire stop the steal effort, the entire insurrection, etc. And just how incandescently malicious and dumb it was. malicious and dumb it was. So you go back and you see some of the actual fraud claims, and they're just incandescently stupid, these fraud claims. And so you're looking at it and thinking millions, millions of your fellow citizens got sidetracked by something that when you just barely scratch it is ridiculous, just absurd. So reliving it was discouraging. The other thing though that was discouraging to me was if you're talking about as, and we'll dive more into this, this is a messier case

than the documents case. And in reading through the factual account, there is a messier case than the documents case. And in reading through the factual account, there is a lot of stuff there that was horrible, but not criminal. And the stuff that was criminal, as we'll dive into, I was reading it in defense lawyer, with defense lawyer mind. And I was thinking, oh, I can see both as a matter of law

and as a matter of fact, how he can go about rebut, how Trump can go about rebutting it. And so while at the end of the day, I think it was the right case to bring, this is not the Mar-a-Lago documents case. Boy, it ain't. No, no.

The Mar-a-Lago documents case is, by contrast with this, is a clean, simple case. It is, this is, the Mar-a-Lago documents case is not complicated. It's clean. The law is narrow. It's focused.

The facts meet the law. It would have been, the only reason not to bring a case like the Florida case would have been like oh he's running for president like it's almost the other direction right you would have had to come up with a way not to bring the case right it's not how I feel about this case David this is broad the statutes are vague in application, I think here. Um, and I mean that both in the sort of colloquial sense and in the legal sense, the indictment is, um, not meandering. It's well written, but in terms of criminality, it's meandering. It's very hard to say where the crimes are and the speech are like, what does DOJ think are the crimes here? They're not very clear on that. And for me, there was a real difference in like

the should you bring this case again in the Florida case? I think you'd have to come up with reasons not to bring a case this clear cut. This felt like the opposite to me. It felt like this was not a case you needed to bring and that they kind of talked themselves into it because of the outrageousness of the conduct and that he hadn't been convicted in the impeachment trial. And so it was like, well, the American people deserve something here. Closure, justice, I don't know.

And so now it's fallen to us, except that's not how it works. Yeah, I think that's going to be probably our key disagreement because my key point is if you believe you're a prosecutor and you believe you have evidence that establishes beyond a reasonable doubt that Trump actually did lie his way

through this whole darn thing as opposed to... That's not the question. Lying, they can prove and we'll get to all this i know they're going to prove that everything that donald trump said about his election fraud claims was a lie they're going to prove that there was a litany of humans telling him that his election fraud claims weren't true from his attorney general to white house lawyers to state officials and not just in the broad sense but in the narrow sense he's like

well these 5 000 people were dead and they no, sir, there were only 12 people who were dead. So the broad and the specific, they're going to prove all those things. And that's not enough under these statutes. They're going to have to prove he believed that they were lies, as in he believed that he lost the 2020 election and that there wasn't voter fraud. Well, that's my definition of a lie. My lie is you're saying something when you know it's wrong, as opposed to a falsehood, which you're saying something's wrong, whether you know it or not. Okay, well, it's good we define that then, because that's not a knowing lie. A lie is, yeah, as opposed to a mistake. So they're going to have to prove, if you believe beyond a reasonable doubt, that you can prove beyond a reasonable doubt that he intentionally lied his way through this thing, then under the, and we'll talk about this, under the existing precedents applying these very broad statutes, I think they've got a case. But Andy McCarthy at National

Review raises a good point about some of these very broad precedents that they've been interpreted by previous Supreme Courts that are different in their approach and outlook from the current court. And so as these statutes have been interpreted and applied, I believe they fit. The question is, A, can you prove the intentionality here? And B, will the interpretation of the statutes hold? And both of those questions, I think, are really key. And both of those questions, I I think are much more open than in the Mar-a-Lago case. All right. So let's run through the statutes. Then we'll run through the

buckets of topics. The two are related, but not the same as I mentioned. Okay. So we've got 1512 C. We have actually talked about almost all of these statutes before, which is interesting, David. All right. 1512 C. Whoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding or otherwise obstructs, influences, or impedes any official proceeding or attempts to do so. So here are the two words I'm going to flag on this one, David. Corruptly and otherwise. So first of all, there's a lot of question over what corruptly means and what mental state is going to be required to meet that corruptly standard.

and what mental state is going to be required to meet that corruptly standard. Clearly, it's not just otherwise obstructing, influencing, or impeding, or you don't need the word corruptly. So corruptly has to be doing something there on mental state. Do you need to know that the thing you're doing is illegal? Or is it doing the thing that turns out to be illegal? Okay, so that's the corruptly part. The reason that I flag otherwise, and again, we've done a whole podcast on this. That first one that I read, the first section that I read on mutilating, destroying, concealing

a record, document, or other object with the intent to impair the object's integrity or availability for use in an official proceeding is really specific. It's documents, It's doing something to the document, hiding the document, destroying the document, setting the document on fire, eating the document, whatever. It's a record. It's a document. Okay. And then you have this catch-all or otherwise obstructs an official proceeding. Is the catch-all building on the document record idea, or is it now the broadest just whatever? Like we had this really specific one, and now we're broadening it to all

the things. And there's a disagreement over that as well in some of the case law. Okay, so that's 1512. And it should be noted, this is the statute that's been applied to a bunch of the January 6th defendants. They have litigated this very issue, the otherwise issue. And the corruptly issue. And the corruptly issue. The otherwise issue was front and center in a two to one D.C. circuit case that we've talked about that adopted the prosecution's reading of the otherwise clause as expanding dramatically the language of the statute. We've walked through this at length, but it's important to know as of now, the case law favors the DOJ's reading of 1512. It has not been determined by the Supreme Court. So we need to put a pin in that as one of those known unknowns as to what the Supreme Court will do. And I think there's very smart arguments on both sides,

but I am still skeptical of the idea that you would have the really specific, like why bother to have part one if part two covers part one, which means that part two can't cover part one. So you're going to need to narrow part two. Does that, which means that part two can't cover part one. So you're going to need to narrow part two. Does that make sense to you, David? Yeah, it absolutely makes sense. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, so now let's do 371. This is the conspiracy to defraud the United States. And remember, just conspiracy is going to mean just two people, like anytime you're working with someone else. So they will have to prove that you did it with someone else. But after that, like your conspiracy box is checked and that's not going to be a problem here. Right. Obviously, lots of other people involved, those six unindicted co-conspirators that we

mentioned, which have been guessed at. I'll just run through the guesses of Rudy Giuliani, Guessed at? I'll just run through the guesses of Rudy Giuliani, John Eastman, Sidney Powell, Jeff Clark, a guy named Kenneth Cheeseborough, and then nobody seems to know who number six is, but might be Roger Stone. Oh, okay. I had not heard the Roger Stone floating, but makes sense. Just as a political consultant who helped organize the slate of electors. So there's only that one sentence to go on. Political consultants, really all we've got could honestly be any number of people, but I'll, you know, whatever. Yeah, because there are several people

who tried to execute the Green Bay sweep was the name of the plant. Yeah. Again, this is guesses from the peanut gallery. Okay, so here on 371, we have two or more persons conspire either to commit any offense against the United States, in which case you're going to need an underlying crime that you're charging, or to defraud the United States or any agency thereof in any manner or for any purpose. and one or more of such persons do

any act to affect the object of the conspiracy. Okay, so David, on this one, it's interesting because I initially assumed when I just saw the statute that they were going to just, basically, this is a tack-on conspiracy charge. So you've got your underlying offense, attack on conspiracy charge. So you've got your underlying offense. And since you did it with two more people, now we can add on 371 because it's a conspiracy to commit any offense against the United States. That's not actually what the indictment seems to say. They seem to be relying on that or part the to defraud the United States. Right. Which, again, if you want to look at case law, has really been narrowed, unless it's very clear to the contrary, to fraud fraud, meaning property, money, things, not feelings.

Except that there is older precedent, Supreme Court precedent, that talks about the statute criminalizes any interference or obstruction of a lawful government function by deceit, craft, or trickery. And so this is, again, one of those situations where you do have a Supreme Court precedent, or you do have court precedent that would appear to encompass the claim. But once again, it is not a concept that's really been tested by the current court. And also, I'd note that the current court has been taking a dim view of expansive reading of these sort of big, broad, vague,

white-collar crime statutes that we're talking about. Especially the word fraud. Right, exactly. Okay, so now we've got 241. We talked about this most recently. This is the conspiracy against rights. So again, two or more people, that takes care of the conspiracy.

Conspiracy is a scary word, so I feel like I have to explain. It just means two or more people in this case. Right. Conspire to injure, oppress, threaten, or intimidate any person in any state in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States or because of his having so exercised the same. So David, my go-to example now, you're on your way to vote i rob you if i rob you for money

i did not violate this law i violated other laws don't get me wrong i'm still getting arrested but if i robbed you because i wanted to intimidate you and prevent you from voting i knew you were on your way to vote i didn't want you to vote for whatever reason, because I know who you vote for. So I robbed you as a means of stopping you from voting. Now I violated 241. And what's really fun about that is you've got to prove why I robbed you. Yeah. So to apply this, for instance, to the slate of electors, electors. If I tried to have another slate of electors because I wanted to stay in power and knew I'd lost the election and thought this was just going to like throw some chaos out there and like buy me some time, that's a violation of this law. But if I had the alternate slate of electors, because I believed that the other slate of electors was fraudulent, the Biden slate of electors was actually the ones depriving people of their right to vote.

I did not violate the statute. Right. And now this statute. So this is the one that goes to intent that really I mean, they all do. So intense here. Really, really, really important. As you just laid out. all do. So intent's here really, really, really important as you just laid out. Also, this is another one of those statutes where the existing case law says, okay, yeah, absolutely. If you're

denying someone the right to vote or in the way the Supreme Court said in 1974, the right to an honest count is a right possessed by each voting elector and to the extent that the importance of his vote is nullified wholly or in part, he has been injured in the free exercise of a right possessed by each voting elector and to the extent that the importance of his vote is nullified wholly or in part, he has been injured in the free exercise of a right privileged security by the laws of the United States. Again, this is a 1970s era precedent. A lot of the key precedent

around 18 U.S.C. Section 241 dates way back, way back into the 30s, for example. And so you do have, I think, a weaker argument than say with 1512 or 371 that, wait a minute, these legal interpretations of 241 are too broad. I think that's weaker. There's a long line of precedent going through multiple eras of the court establishing that 241 applies to this right to vote. But Sarah, this is where that intent element, once again- It just kills you. It just creeps up and kills you. It just creeps up. And so that again, and we should really dive in on the intent

stuff. I don't know if you want to do that right now or not, but again and again and again, and this is the way I put it in my piece and the way I put it in the pieces, you can't win unless you can prove that Trump knew what he was saying was false. This is, you could say, well, he was just mistaken. No, mistaken doesn't get you there. That mistaken. He should have known. Any reasonable person would have known. This is not a reasonable person test.

It is him. It is his state of mind. It's a corruption test. It is a corruption test. That's what it is. And so that's why, in a nutshell, these other legal arguments I think are interesting and worth exploring, but the present state of the case law, in my view, supports these charges. Whether the present state of the case law will hold is a different question. But the present state of the case law supports these charges. It's the intent element that is really everything here before you're

even going to get to an appeal on the interpretation of the statutes. Okay, so let's start creating some buckets here because this is going to proliferate. So bucket number one is the intent problem. We're going to have to prove that Trump knew what he was saying was false. I think that is just going to be so hard. And when you read this indictment, there's tiny little snippets of evidence for that. For instance, at one point, they point to the fact that shortly after the election, he referred to co-conspirator to, sorry, three? Well, it doesn't matter. The one that we think is Sidney Powell and her ideas about the election as, quote, crazy.

Yeah, that's not enough for me if I'm on a jury. You can think someone is crazy. You can think their ideas are crazy. But they're on to something, you know? Like, it doesn't mean that you think the election wasn't stolen from you, etc. And Trump might get on the stand and say, I didn't say that. That's true, too. And then you're going to have other people with similar type stuff of like Donald Trump saying, for instance, in a meeting of his National Security Council slash military advisors shortly before January 20th. And they're like, well, sir, we don't actually think you should

do something because Inauguration Day is coming up. And he's like, you're right. Let's leave this as a problem for the next guy as proof that he knew he wasn't going to basically be able to stay in office. Again, that's slightly different. And then you're going to have some witnesses say, yeah, no, he definitely knew he lost. He just couldn't accept it. Well, wait, what do you mean he couldn't accept it? Because that kind of means he thought he hadn't lost. So I think that intent bucket, number one, is is hard i don't think the indictment i think they've got some stuff but i don't think it's like oh my god obviously he knew he was lying they've got tons of evidence for this they've got some silver bullet they don't that's bucket number one bucket

number two are the legal infirmities with these statutes either because they're broad because we don't quite know what corruptly means for state of mind, the otherwise hook. I agree with you that we're not even going to get to those in my view until we're so far into this thing. Maybe until there's already a conviction, as would normally be the case, where you then appeal the conviction. This will actually be part of my argument of why this is a bad case to bring because even if you get a conviction this thing is going to be up on appeal for years over what those terms mean what those laws mean whether they're vague for you know void for vagueness mean all sorts of problems that i don't think you um i agree with you that the case law is on doj's side right now in sort of a teeter-totter fashion.

It's not settled. It's not on the ground. Like that's teeter-totters in the air and it's leaning their way. That's not good enough for me on a case like this with these implications for the country. That's bucket number two. Come back. Don't worry. Bucket number three are going to be the actual areas the DOJ points to as criming.

So I want to run through those with you. One, pressuring state election officials to change the results. Two, organizing fake slates of electors. Three, using the Department of Justice to pressure state officials to change their electoral votes. using the Department of Justice to pressure state officials to change their electoral votes, or attempting to get the vice president to refuse to certify the results. Those are not all created equal to me, David. No.

Some of them are not criming at all, in my view. Some of them are closer calls. And I just want to read that in the opening section of the indictment where DOG seems to recognize this. So paragraph three, the defendant had a right, like every American, to speak publicly about the election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful. So here they're recognizing that you have a right to speak. You have a free speech right implicated here. You have a right to lie, which you do. The Supreme Court's definitely held that. And that you have a right to file lawsuits,

to contest the election, to ask for audits of the popular vote, yada, yada, yada. So let's go back to those four buckets. Pressuring state election officials to change the results, organizing fake slates of electors, using the Department of Justice to pressure state officials to change their electoral votes, and attempting to get Vice President Mike Pence to refuse to certify the results. Throughout those four categories,

there's a whole lot of speech lies. But again, I think we have to define the lies of whether how you define them knowingly false or mine, which is not true. Right. And doing things that presidents do all the time, like asking the Department of Justice to investigate something, calling a state official and saying that they should audit the results of the election. That's throughout the indictment. And it's throughout some of these examples of like, well, he called this state election official and said, you need to investigate this election fraud. You need to audit your election. Is DOJ mentioning that as evidence of his state of mind? Or are they saying that that's

a crime itself? Because that clearly isn't a crime itself to me. And that's where I thought the indictment got muddy. Well, I, you know, look, I put it like this and we were slacking back and forth as we were reading this thing. Let's walk through the phases. So the first phase was pressuring the legislators. I found that least compelling from a criminality standpoint. In other words, I thought that pressuring and jawboning of legislators, to me, this was not the strongest element of the indictment by far for the very reasons you talked about and for the very reasons the indictment says, that there's a right to jawbone these guys. But then we got into the fake elector scheme.

God forbid we criminalize presidents lying, by the way. Right. Then we get into the fake electors. God forbid we criminalize presidents lying, by the way. Right. Then we get into the fake electors scheme. Now, the fake electors scheme, this is the strongest, in my view, the strongest, one of the two strongest elements of the entire indictment. Because if you can prove he knew, so this is, you can't get around, remember, you cannot get around the corruption element here of proving that he knew that this is you can't get around remember you cannot get around the corruption element here of proving that he knew that he lied if you're proving if you prove that he knew that he lied here's where you're actually putting together and directing and this is this is again alleged in the indictment they would have to prove it that he directed a scheme to cast fake votes and to present fake electors as real voters.

And to me, that's where you're closest to your absolute wheelhouse here. But again, you can't get around the intent-proof element. But you prove that intent. This is where I think the teeter-totter on the case law is the strongest on teetering towards the DOJ. This is where the facts are strongest, minus the questions about the intent. That this is the kind of thing where it's like trying to criminalize the house of cards. That all of the bureaucratic infighting and viciousness and all of this stuff, horrible, terrible. I don't see the straight line of criminality as much. Be eager to hear what listeners say. And then on the Pence piece of this,

I have much more mixed feelings. The other element of this case that I think is strong is the Georgia element, as we've talked to, not so much because Trump is jawboning an election official, but because he raises the prospect of prosecuting the election official. That's something that really, really ratchets up against the stakes. Now, again, you can't get around the criminality piece of it, but if I was going to say,

if you made me say, what are the best, most compelling claims? It is fake electors, Georgia threat. That's on my billboard. that's on the neon sign flashing the rest of it isn't as compelling to me I agree with most of that I want to emphasize a couple things one, on the fake slate of electors

I agree that it has the potential to be the strongest I am concerned that the indictment doesn't actually tie Donald Trump to this very tightly. So it ties Rudy Giuliani to it, like wraps him around the pole. Yeah. But, for instance, the only times that I could find where the defendant, meaning Donald Trump, is in the action?

One, on December 6th, the defendant and co-conspirator two, which we believe is John Eastman, called the chairwoman of the Republican National Committee to ensure that the plan, the elector plan, was in motion. During the call, again, I'm just going to use Eastman instead of the number, but understand that we don't know that for sure. That is simply our best guess. best guess. Eastman told the chairwoman that it was important for the RNC to help Trump's campaign gather electors in targeted states and falsely represented to her that such electors votes would be used only if ongoing litigation in one of the states changed the results in the defendant's favor. After the RNC chairwoman consulted the campaign and heard that work on gathering electors was underway, she called and reported this information to Trump, who responded approvingly. So let me recast that call in a different light. Donald Trump's on a call where John Eastman says,

hey, because there's all this litigation pending, if we were to win any of these cases, we would immediately need an alternative slate of electors. So we're going to prepare these slates of electors in the hopes that we win one of these cases. electors. So we're going to prepare these slates of electors in the hopes that we win one of these cases. So that's why we're going to get these signed, documented, all of that stuff. If we win one of the cases, then we have it already ready. Donald Trump is on the call listening to this. There is nothing wrong with what John Eastman just described.

Now, they're going to prove that John Eastman actually had a very different plan in mind, that he wasn't going to wait for litigation. But of course, they don't tie Donald Trump to that plan. All they tie him to is this phone call, where I think they made a pretty good case that John Eastman knew he was lying to the RNC chairwoman. But did Trump know that Eastman was lying to the RNC chairwoman? That's not actually in here. And then, of course, was lying to the RNC chairwoman, that's not actually in here. And then of course, the RNC chairwoman calls back to tell Trump that they're working on gathering the electors and he's happy about it. Yeah, I bet he is. Like what? Yeah, I'm sure. The only other part is later on where it says, you know, at defendant's direction, but there's no evidence of like what that means, how that's going to be proved, what the evidence is for that. You know, there's one where it says

Trump asked a senior campaign advisor for an update, what was going on with the elector plan and directed him to put out a statement on electors. Again, like you've got to prove that he knew not that they were simply preparing these if they'd won litigation, but that they were preparing them for a different reason entirely. That's not really in here. Paragraph 66 says, on the same day at the direction of the defendant and co-conspirator one, fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots in favor of the defendant. That's the one that I mean they don't have the evidence for. It just says at the direction. That's the key. Yeah. Now they've made the claim.

They're going to have. Yeah, sorry. I don't mean they don't have the evidence. I mean, the evidence is not here in the indictment that we're reading. Correct. Yeah. And that's important to note that the indictment is not the sum total of all the evidence. It is the summary of the evidence. And so that's the money claim right there, that at the direction. So they're going to have to produce those goods, right? And if they produce those goods, if they have that evidence, Donald Trump's in real trouble here on the fake electors. But you see where this gets

slippery, right? If it's at the direction, meaning Donald Trump thought that they were preparing them in the alternative for when they won litigation, that could be at his direction. There's nothing wrong with that. It has to be at his direction. That's not the claim. The claim is that at his direction, they cast sham votes. So I'm going to read it again. It says, at the direction of the defendant and Rudy Giuliani, fraudulent electors convened sham proceedings. Yes. What if at his direction was only the convened?

The sham proceedings, the fraudulent, those are words being added. Yeah, that's not the allegation. I mean, so they're alleging that this whole thing was fraudulent and they'll have to prove it. Okay. So then on the second part that you talked about, which was the DOJ part, I find that one so totally lacking in merit and the most outrageous to me personally. Like I find it the most offensive and the least criminal. Because when you walk through it, you know, so you have Jeff Clark, this DOJ official who had been the head of the, you know, environment and natural resources

litigation section, who's acting head of civil, and he's gone off his rocker. And so he is walking around threatening DOJ officials, including the attorney general, deputy attorney general, saying Trump's going to appoint me acting attorney general, unless you guys sign this. That's all Jeff Clark. In the end, again, Trump's involvement with this is having lots of meetings with Jeff Clark where Jeff Clark lays bare his crazy. And then the president not putting Jeff Clark as acting attorney general. And they say like, oh, because everyone at DOJ and the White House counsel threatened to quit. All right. I don't really care why. He didn't do it. He never put in place any of those plans. So your evidence of criminality is

Jeff Clark. There was this guy at DOJ who kept telling the president crazy stuff about what he had the power to do and that the president didn't implement any of it. I don't even see that one as being close, David. What's even the best argument for why any of that's criminal? That's a good question, Sarah. Like crazy person meets with the president and the president committed a crime? Yeah. No, you know, the one, the beef that I had about the indictment is it's pretty obvious that there's some of the stuff in there is just part of telling the story. Not every paragraph of the indictment is a claim of criminality. Which is a bit confusing and muddies it all up. But they have the DOJ

part laid out separately as one of their four areas of crime. And I don't see a crime in that ever. Not even a little, not even if they proved it. Yeah, I don't see the DOJ. To me, that's right along with the jawboning the legislators. I see that as more potentially criminal than the machinations inside the DOJ.

The machinations inside the DOJ, as I said earlier, just felt like watching House of Cards type stuff that ultimately failed. Right, or like even the president calling the attorney general and saying, I want you to look into election fraud. Nothing wrong with that.

Like that's presidents do things like that. Like, I don't think we want to criminalize presidents calling senators and asking them to vote a way that we think is bad for the country or even unconstitutional, because I can tell you all sorts of examples of presidents calling senators to vote for laws that are unconstitutional, that are found later to be unconstitutional, that even the president at the time he's making the phone call believes are probably unconstitutional. We're not going to criminalize that. I hope that'd be a mess. I'm remembering I've mentioned this before, but you know, when George W. Bush signed the Bipartisan Campaign Reform Act, remember his signing statement said,

I don't know that this is constitutional. Like, did he commit a crime then when he signed that? No, of course not. Or, you know, did Joe Biden commit a crime because he said that he didn't have the power to forgive student loan debt? And then some advisors convinced him that he did? Well, but look, there were plenty of people telling him he didn't have the power to do that. Is that a crime now? No, of course not.

So be careful about letting your outrage overtake the precedent you're setting. I find everything in this indictment outrageous and impeachable. And I wouldn't vote for the guy for president again, I'll tell you that. But I am loathe to criminalize everything I see that I don't like, and particularly where I can come up with different benign examples that are technically the same conduct. Different results, different implications.

I get all of that. I don't want a bunch of hate mail about this. But like, tell me the difference, legally speaking, under the statute between some of these things, because if you can't, we're in a world of trouble. No, I'm just again, I'm with you. Horrible stuff. And for those of you who are screaming at your iPhones right now, none of this is defending the morality of what occurred. That's one of the very first things that when I read this,

I was so depressing. It is depressing. It's depressing that he did it. It's depressing that he wasn't convicted in the Senate for it. Like, I'm mad about that. I'm mad at Jeff Clark. All of it. It's depressing that tens of millions of people still think he hangs the moon, that they fell for something that was transparently, incandescently, not just malicious, but unbelievably dumb. And they all fell for it and they've still fallen for it. What about bucket four, the Pence element of this? I think that just fails on state of mind

really easily, actually, because you have lawyers telling Donald Trump that Mike Pence has the power to do this. And you have Mike Pence and his lawyers telling the president that they don't have the power to do this. Good luck proving state of mind. Yeah. You know, I think here's the interesting question about the state of mind. So this is, you know, I've been thinking through this and I think there's the prosecutor is going to have a field day introducing evidence of people who are Republicans, who are not selected by Donald Trump for their positions, who stuck with Donald Trump until late 2020, early 2021, who all who are extraordinarily well qualified to make the various assessments that they made. assessments that they made, he's going to be able to pile on evidence as he does in the indictment.

But in live and in person in the courtroom, it'll be vivid. People will use the language that they use to say how they told Donald Trump that he had lost, that these conspiracy theories were just that, conspiracy theories and not credible allegations. All of that is absolutely going to be coming in like a tsunami to the jury. Now, here's the question. As a practical matter when you're the defense, you know that the prosecution's got to prove intent.

How are you as the defense attorney going to present evidence to rebut or how are you going to rebut this do you have to put donald trump on the stand to talk about his intent what his intent was now remember in a criminal case donald trump does not have to take the stand um do you put these co-conspirators up? Would they go on the stand and speak about this or would they exercise their privilege against self-incrimination? So one of the interesting practical questions is the defense has to cast doubt on the intent element. And for it to be credible, it can't just be some sort of closing argument kind of closing argument attempt. There's got to be something concrete to wrap around.

And this is where there's going to be a real question. and look the jury in the eye and tell them this election was absolutely stolen and then get absolutely cross-examined into the ground in front of them. And that's going to be a very, very interesting strategic question. It's hard for me to Sarah, to see how they actually make the case for Trump's intent without putting Trump on the stand. If you had an array of people who could testify about, well, I mean, how many people would be able to get up and testify about what Trump told them as an open question, but how much can you make that case without Trump being on the stand subject to just extraordinary cross-examination on these extraordinarily bad facts. And that's an interesting strategic question for me.

And this is why I find this whole thing, we're getting to the nut at least of why I find this whole thing really depressing. Everything you just said is true, but it's almost missing the context in which this is all going to happen. Uh, so let's, let's put this in some context. One, one little note though, on the free speech stuff and just the indictment and the muddiness of it. I also did not like the DOJ was like Donald Trump tweeted this about these election officials and they got death threats. It is irrelevant. Like that's some heckler's veto stuff. And I don't like DOJ bandying it about and implying that it somehow became more criminal because these people got death threats. Again, as two people who get death threats from time to time. It's outrageous. It's not okay. The president of the United States did this, like all the caveats,

but he's allowed to criticize local election officials. And the results of that criticism do not make his speech less protected. Yeah, that's all true. So I found that annoying in the indictment. That's all true. I found many other things, but let's put this trial in context. There's lots of reasons that it could go sooner than the Florida trial. Basically, it doesn't involve classified documents.

There's no SEPA process, that classified information protection act stuff process that they're going to have to go through. But of course, the indictment came out two months later. And this is so broad and weird and will involve a lot more witnesses, like hundreds of witnesses. Oh, man, this is a case. Woo! Yeah.

So arraignment will be this week. You know, we're moving. But that's all to say, there's reasons to think this could go faster. So imagine, and there's reasons also, as I've said before, to think that the Florida case isn't going in May. So let's play out some of these scenarios. Imagine this is the first real criminal trial of Donald Trump. It is in the summer of next year.

We're heading into the 2024 election. The Department of Justice that is run by his opponent is prosecuting their boss's political opponent in the midst of conventions and everything else. And we're talking about Donald Trump taking the stand, being cross-examined. The special counsel, remember, is not independent. It's not an independent counsel. This guy reports to Merrick Garland, a political appointee of the president. Those Republicans are not going to suddenly say like, oh, wow, I guess Donald Trump was wrong. If anything, it's going to have the opposite effect. They're probably more likely to think the election is stolen after hearing him say that he believes the election is stolen. is stolen. Democrats, I think it is worth noting, who believe that, you know, Donald Trump incited the riots on January 6th, aren't going to be then dispassionately weighing the evidence and whether

the prosecution has met its burden of proof. You're going to have just, you're going to have a country on fire. And, you know, again, like, yep, he takes a stand and how does that work and self-incrimination and cross-examination and yeah but like none of that almost matters compared to placing this in a time and place in the politics of our country with a messy muddy legal factual indictment it's just not like Florida. And, you know, I think you and I talked about like whether you'd want Florida to go first and all of that stuff. I hope you'll talk about that.

But like, I don't like this. So I think this is necessary. This is where we disagree. Okay. And here's why I think this is absolutely necessary. Number one, the case law supports the claims. Like, I get that there are arguments that the case law should be, that this court would change that case law or overrule some of it or modify it.

I get that argument, but the case law supports the claims. That's where, when you're talking about the teeter-totter, that's where we are. Number two, I think the evidence supports the claims. Now, the difference between, and I feel like we're quite colored, and we might be colored a bit by Mar-a-Lago, because when you read the Mar-a-Lago indictment, the thing about the Mar-a-Lago indictment is it didn't even read like a summary, Sarah. It just basically read like... It sort of didn't mean anything else.

Yeah. It read like something you would just... Yeah. Jury. Ladies and gentlemen of the jury, allow me to read from this following short document. High rest, my kid. Now, that's, of course, not the way it would work, but it was so strong. You know, you had the Ty Cobb statement that this is overwhelming, which, you know, Ty Cobb is not

an anti-Trumper, right? So this is, so you had this overwhelmingly powerful indictment, but this one, this one actually, in my mind, you had the case law that supports it. I believe you have the facts that support it, but to say believe you have the facts that support it, but to say that you have the facts that support it doesn't mean that he, that Trump doesn't have defenses. And that's what makes this much more difficult. But here's the other, the other side of that coin. To me, what's really important here is look, there have been millions upon millions of Americans who, and I run into them many, I run into them all the time, people who say the election was stolen, the election was stolen, and why was the election stolen? Why do you believe the election was stolen? And unless somebody is like one of these super, super online people, they don't actually articulate it. They can't articulate it. They don't know why. articulate it. They can't articulate it. They don't know why. And one of the things I think that this trial can conceivably do is at least strip away any pretense through an actual legal

process with cross-examination where you can't say that this is like the January 6th committee, where there weren't, quote, real Republicans, as Trump's defenders would say on the committee. It strips away all that because you have Trump's full ability to launch a frontal attack against these charges, including a frontal attack based on why, what he says he believed and why. And I think that this could be a very clarifying moment for those who have eyes to see and ears to hear that percentage of people who are actually persuadable on this. Because one of the things that we can't underestimate is how this will play out day by day by day with each new witness coming forward and that testimony being reported into the public record when the eyes of the public

are going to be on this in a way that they were never once on the January 6th committee. This is the trial of the new century. And I'm with you, Sarah, on all of the problem and how this country, I mean, gosh, you could collect and in Slack, folks were collecting some of these unbelievably over-the-top statements. Like one person, a very famous podcaster tweeted out, you are in a civil war. Another MAGA personality tweets out, the Department of Justice is a domestic terror organization and this country will not be a free country until it is defunded and dismantled at its entirety. And so you're getting all of that. I absolutely agree with you that this is going to be dangerous. But you knew who made this thing dangerous? It's freaking Donald Trump. And I don't

think he gets the benefit of the doubt of the fire that he started. I don't want to give him the benefit of the doubt. I'm not trying to bend over backwards to protect him. I am worried about the path we are on and that everyone is acting in good faith. I want to be clear. I don't think that this indictment is...

This indictment's messiness or muddiness is because of a politicized DOJ or because Jack Smith has some ax to grind or any of those things. I, in fact, I think it's sort of the opposite. You have prosecutors who aren't political actors who aren't looking at sort of, aren't considering those bigger picture questions and maybe we don't want them to argue. Like, I think there's a good argument. We don't want them to, but that's how we got here. It's not corruption. It's not it's not those things. It's what you said, David. Well, the law supports it. The facts support it. Let's go.

And but you can have then everyone acting in good faith and leading us down a path that I think is pretty scary and that I don't think we know where we're headed. And look, I wrote this at the end of the newsletter and I wrote it like five minutes before it went out because I was like, I just can't send this out the way that it is. It is too depressing. But I said, in the end, it'll be up to 12 Americans who have sworn to be fair and impartial. And that's the most American thing at all. And I think we have to count on that. And God bless those 12 people, whoever they are.

They're going to have a tough job. And we're counting on y'all. You're out there somewhere. You just don't know it yet. And can I say this? Because I really loved that part of your piece, because I think that's profoundly true and actually profoundly comforting. It is. And I'll say, of all, I wrote a piece for the Times last week. Man, everything's blurring together,

Sarah, where I talked about of the american legal slash political institutions the the justice system has really shined during this entire trump stop the steel effort it was put under immense pressure and it's the political it's the branch of american government that has really shined and it shined in the Trump stuff, but it's also been shining in a lot of these other really, really contentious public issues. And so we have handed to juries, the George Floyd prosecutions,

the Ahmaud Arbery prosecution, Kyle Rittenhouse case. And this is not where juries convicted all the time. I mean, they acquitted Kyle Rittenhouse, and I thought appropriately, and they convicted these other defendants, I thought appropriately. But the jury system has actually, and we can point to circumstances and places where juries have, you know, I think made wrong calls. It's a human institution. Our jury system is not perfect. But what is interesting to me, Sarah, over the course of my career,

it's actually rare that I have encountered a judge who's really actually cynical about juries. Almost every judge that I've talked to about juries is actually refreshingly almost idealistic about it in an interesting way and so i do think that if we're going to hand this issue over to an american institution we are handing this over to our highest functioning institution and one of our most, as you point out,

this jury of our peers notion, an institution that we literally cannot have our constitutional republic without. Okay. Maybe that should have been the podcast, Sarah, just your sigh. Four seconds. Welcome to Advisory Opinions. Okay.

Subscribe and rate us. You could have skipped the whole last hour and just that sigh could have summarized this podcast. We'll have a lot more to talk about on this topic. There will be a judge assigned to this soon. We'll have a lot more to talk about on this topic. There will be a judge assigned to this soon. We'll have trial date stuff. We'll have, I mean, all the things. So this long running conversation, disagreements, agreements, all of that will continue. And in the end, I think you and I share a love of and trust of the American legal system. And this will test that.

And I hope that it all comes out well. But you know what could really de-escalate all of this, Sarah? A really good lightning strike? If Republican primary voters reject Trump. David, that's not going to happen. These indictments make that less likely, not more likely. I know.

I just had to throw it out there, you know, just in case you're listening. And you know what, though? I think it's worth mentioning, though, that there's something very rational about that because if you think that this is politicized, if you think that these are unwarranted charges,

that this is overreach by his political opponent, then yes, it makes you more likely to want to nominate him because, you know, F those guys. And if it were a, you know, different candidate, perhaps they would not be able to withstand this kind of pressure. So I really, really think it is very rational in some ways for Republicans to think this makes Donald Trump a more important candidate for them to rally around. And that's a problem too. Yeah. If you believe in unicorns, it's quite rational to worry about them sticking you with their spikes. But yeah. But on the flip side, David, you don't see a bunch of Democrats wringing their hands about whether they should abandon Joe Biden because there's credible allegations is the wrong term. There is no question that Joe Biden's family was making money off at least telling people that they had influence over his decision making.

Millions of foreign companies doing exactly that. So either his family was telling the truth and they did have influence over him, or his family was lying to those people and just bringing in millions that Joe Biden knew about while not having influence over him. You don't see Democrats bringing their hands over that, and yet we don't have an entire podcast dedicated

to why that's not rational either. It's not good. Well, then, yeah. I mean, sleepwalking into a Biden-Trump rematch is absurd. It is absurd. And listen, I'll give you a challenge, i want my the smartest if you think you fit this if you think you fit this category i want the smartest most zealous joe biden fan democratic listener that we have to if you haven't subscribed already to the dispatch subscribe and make the case why it is good for america that not just that Joe Biden won in 2020. Okay. All right. I,

I wanted Joe Biden to win in 2020. I voted, I voted third party, but I did not want Donald Trump to win. But, um, that Joe Biden is the right man for 2024. That,

that's the case. Oh, well, it's not Donald Trump. Like, no, no, no. Within the Democratic Party. Why Joe Biden over any of your other options? You've got any of your other options. Please make the case. I will. I will read it with an open mind. I promise you. like kind of a downer of a podcast. I feel like normally, David, you and I come with a lot of joy to this podcast because I feel a lot of joy taping this podcast and I didn't today. And so I felt like I needed to be really upfront about it, but I don't. I don't feel joy talking about this. It's one of the grossest chapters of American history that we're still living through and isn't anywhere close, at least medium term, to being over.

And so I think there's a lot of reasons to look at this with a sort of, I don't know exactly how to describe my vibes. I would say grim resolve. How about that? Grim resolve. All right. Well, barring some crazy episode external, I will see you next week. Yeah.