Plain English with Derek Thompson - How Strong Is the Case Against Donald Trump?

Episode Date: April 6, 2023

Derek talks to ‘Semafor’ political reporter Dave Weigel about how the Trump indictment could reshape the election—or turn out to be a big ole nothing burger. But before that, Norman Eisen, a lawyer who served as cocounsel for the House Judiciary Committee during the first impeachment and trial of Donald Trump, argues that Alvin Bragg's case is much stronger than the conventional wisdom. If you have questions, observations, or ideas for future episodes, email us at [e-mail]. You can find us on TikTok at www.tiktok.com/@plainenglish_ Host: Derek Thompson Guests: Norman Eisen and Dave Weigel Producer: Devon Manze Learn more about your ad choices. Visit podcastchoices.com/adchoices

Rough year for your favorite NFL team. Join me, Danny Hyfitz, along with Danny Kelly, Ben-Sulloch, and Craig Krollab on the Ringer NFL Draft show where we talk about all things NFL draft. And more importantly, how to fix your mediocre team. Check out the Ringer NFL Draft show every Tuesday and Thursday. Today's episode, The Case Against Donald Trump. So there's a line in my favorite law movie, a few good men, where Kevin Bacon opens his prosecution by saying, the facts of the case are these, and they are undisputed.

And that movie really made me want to become a lawyer. I did not end up becoming a lawyer, but this seems like a good moment to quote Mr. Bacon, because underneath all the hubbub, this case isn't very complicated. The facts of the case are these, and they are undisputed, at least undisputed by just about everybody paying close attention. Donald Trump slept with Stormy Daniels. Donald Trump's team instructed his lawyer, Michael Cohen, to pay her hush money. then they paid back Michael Cohen in several installments which were recorded in the business as ordinary legal fees. This deal was struck during the heat of a razor-tight presidential election in 2016.

Those are the pieces of the case, and they are basically undisputed. What is disputed is the law. What law did this break? And all those facts that I just recited, is that all that happened? or is there some other smoking gun that turns what might ordinarily be a business fraud misdemeanor into a felony? On Tuesday, Donald Trump pled not guilty to 34 charges. 11 counts for false invoices. 11 for false checks and check stubs.

12 for false general ledger entries. That indictment is now but unsealed. I told you that when it would be unsealed, we'd have a legal expert on to talk about it, and today that's what's happening. But here's what's so interesting to me. Legal experts do not agree about the strength of this indictment. On one side, a lot of lawyers I've read and heard say, this case is a nothing burger. This case is a legal embarrassment. It is an inevitable win for Donald Trump. We are trying out an entirely new legal recipe on an ex-president. It is completely inappropriate. On the other side, there are people like today's guest, Norman

and Eisen. Eisen says, actually, the ex-president has something to worry about. He is a lawyer. He's a senior fellow at the Brookings Institution. And Eisen was also, this is relevant, a co-counsel for the House Judiciary Committee during the first impeachment and trial of Donald Trump. Eisen and I talk about the indictment, the strength of Alvin Bragg's case, and why the naysayers are, according to Eisen, and you will hear us push back and forth a bit, why he thinks the naysayers are dead wrong. Of course, as we talked about last week, the indictment of an ex-president who is also running for president, who is also now the faraway frontrunner for the Republican nomination. This is not just a legal story. This is a politics story.

And so we've got the great political reporter, Dave Weigel, from Semaphore on the second half of the show, to talk politics. No big wind up from me today. Politics and law are, I might as well be blunt and honest about this, interests of mine. but this is not my bag, this is not my expertise. In all honesty, I am just out there, probably like the rest of you, just reading and trying to figure out what the hell is going on. Thank you, as always, for listening, trusting me to make plain, that which is sometimes not particularly plain, even when the facts are undisputed.

I'm Derek Thompson, and this is plain English. Norman Eisen, welcome to the show. Delighted to be with you. Norm, you just published a big piece in the New York Times about this Trump indictment. And before we evaluate the strength of the case, what makes you and your co-author qualified to assess this indictment? Well, you're testing my false modesty, Derek. I'll start with my co-author, Karen Agnophilio, former chief deputy, in the Manhattan District Attorney's Office,

has worked on countless cases, including, as I'll explain, many cases that are actually very similar to this one, although it has unique aspects. The books and records charges and the campaign finance violations that make those charges of felony have been charged often,

New York State and books and records all the time by the Manhattan DA under her supervision as the former chief deputy. As for me, I am one of the only living American lawyers to have actually charged a president with crimes and misdemeanors and then put a president on Trump on trial. That's because I was counsel in the impeachment, first impeachment of Donald Trump. It was high crimes and misdemeanors, not the low crimes of misdemeanors, but I investigated these identical hushmane claims as high crimes and misdemeanors. I know the evidence. I know the law. And I have been a criminal defense lawyer doing criminal practice and a scholar for more than three decades. So those are.

are the qualifications of Karen and myself. I think those qualifications absolutely suit. Thank you for pushing through your own humility. You've had a look at this indictment. False humility. False humility. Excuse me, Norman. Before we get to your assessment of the indictment and the statement of facts, just give it to me plain. When you looked at this, what was important? What is DA Alvin Bragg charging Donald Trump with? Well, he's charging him with attempted interference in the 2016 election that was a precursor, as I wrote in the Times and in another CNN opinion piece that I published immediately after. This 2016 conduct involving the Hushmoney was a gateway drug for the attempted election. interference involving getting the president of Ukraine to attack Joe Biden, at least the attempt

in 2019, that was the subject of the impeachment, first impeachment, and then the massive election interference that constituted the attempted coup and insurrection following the 2020 election. This was the gateway drug, and the way it's being pressed. prosecuted, you know, there's no crime on the books for pushing a gateway drug of democracy to denial. But the way it's being prosecuted, as you always do, is to look for the specific crimes that were violated when you have one of these assaults. Here, Trump, it seems to me, powerful evidence that Trump created false books and records. He characterized hush money payments that were made to Stormy Daniels as legal fees. Under New York law, you can't write in your

corporate books and records that something is a legal fee if it's a hush money payment. That is a slam dunk New York crime. And it's a felony crime. If you do it to hire, another offense. And here it appears that there were campaign finance violations. Michael Cohen can't give a $130,000 payment or loan to benefit the campaign. He bled guilty to that in federal court. There's state campaign finance violations. There's tax issues. So when you cover up or advance another crime has happened here, that is a felony books of records violation. And of course, the reason, returning to my point, election interference, the reason for this hush money payment was to benefit Trump's campaign. There's a ton of evidence of that,

including that it came right after the Access Hollywood scandal. A second sex scandal might have killed Trump in an election that he only won by a little over 70,000 votes in three states. Anyhow. So Bragg's charges are righteous. are not petty New York misdemeanors and felonies. They're major democracy crimes, just like the ones that other prosecutors, state and federal, are looking at for 2020. I'm going to give you a chance to respond to some people

who have made the opposite claim, which is that they worry that the indictment is not as strong as they were expecting. But before we get there, there's a couple numbers I want to run over that I got from your reporting, from your articles. There are 34 charges in this indictment, 11 counts for false invoices, 11 counts for false checks and check stubs, 12 counts for false general ledger entries.

This is not the first time that DEA Alvin Bragg has indicted people on false record charges in his brief tenure as district attorney. Is that right? That is right. He's charged now with Trump 30 defendants. in a little over a year with false books and records. Books and records are the meat and potatoes of Manhattan DA and in general, New York DA charging.

And for people who aren't lawyers, books and records, what are we talking about in plainer language here? You cannot create fake business records like the false checks and check stubs, the false invoices, false general ledger entries that say these hush money payments were legal fees. And the reason that we have that rule is that precisely because this is a badge of fraud. And authorities want businesses to be honest to stop them. If you can create false books and records, then you can, you're

you're on the Royal Road to all kinds of other frauds. So this is to prevent exactly what we have here, the kind of wrongdoing that may have illegitimately changed an election. They stop it at the front end with books and records. It's charged frequently, not just there. I looked at, it's been charged thousands of times across New York. I did a table of, you know, 50 of the most comparable cases over the past years.

There's nothing unusual about a Books and Records Charge in this situation, and there's nothing unusual about a Books and Record charge being bumped up to a felony, as is happening here, treated as a felony crime,

because it covered up a campaign finance violation. Michael Cohen was not allowed to make $130,000 payment, $130,000 loan, however you characterize it, to benefit the Trump campaign. He pled guilty to it.

The proof is powerful that Trump intended this as a payment that, but for the campaign. That's the legal test he never would have made. You know, it doesn't count on Michael Collins' guilty plea or Michael Collins' word. There's a lot of other proof of that proposition. So that is the book and records crime here. I want to get your take on what the strongest and potentially weakest parts of this case are. But before we get there, just a really quick question. You mentioned that the DA has brought this charge thousands of times in the last few years, 30 defendants on books and records just in the

last 12 months alone. What is the DA's batting average on these kind of cases? Are we talking like 20%, 50%, 80% conviction rate? It's well over 90%? 90% conviction rate. It's well over 90% the high 90s. I mean, I haven't done the analysis, but, you know, we're talking about extremely rare cases where you don't get a conviction. I talk about them all, the successes and the failures in my essays for Justice Security have published a series of really doing deep seven, doing deep, deep dives into the facts, the law. There's a big chronology and there of evidence and all of the different legal aspects

and tables of these cases, both for books and records, and specifically campaign finance prosecutions based on books and records and analogous statutes in New York and nationally. Let's get right into that. The title of your essay is, quote, we finally know the case against Trump,

and it is strong. What is the strongest part of this case? Is it the abundant evidence? Is it the fact that Alvin Bragg and the DA's office is incredibly and routinely practiced in bringing these kinds of cases to court? What in your mind and in the minds of audiences should people take away as the strongest piece of this case? The strongest piece of this case is that Trump did it.

He paid hush money, light of it. about it in the books and records in order to benefit his campaign, violating campaign finance law. And he may have changed the outcome of the election. There's the theory of the case in one sentence. It is a strong case. Bragg has the wind at his back. It is not a slam dunk. There's some legal arguments that are going to be oddly contested. I believe Bragg has the better of those legal arguments. And I believe that he is going to succeed in getting this case before a jury. And while Trump is presumed innocent and as a lawyer who for most of my career has been a criminal defense lawyer until Congress hired me to prosecute Trump, I take that presumption very seriously.

But to me, it looks like a powerful case. Yeah. So let's say, that Alvin Bragg, you know, let's say you are advising Bragg's team, and they come to you and they say, we want to know what the most likely obstacle is for actually getting a conviction in this case. What is the weakest part of this case? What's the biggest unknown that they should be

anxious about going into this trial? Derek, do you know you are the first person to ask me the question in that form of the hundreds of questions that I have been asked about this case since it heated up in the past weeks on TV and podcast, the radio reporters, my editors, all these publications I've done. So I think the weakest, some people say the weakest part of the case is Michael Cohen, my friend. I got to know him because I investigated the same stuff during impeachment.

He was one of the first people I talked to about the hush money associated proof. But Michael Cohen, having read the statement of facts, I believe, is going to be 5% of this case or less. They have built a case that will allow a very strong cross-examination of Michael Cohen and is going to be a vibrant one. and he's going, you know, I think he's going to do well, but to the extent the jury sees that cross-examination, what they've done, that's why Greg, I think, took a year to build this case. He's built a case that includes Michael,

but has a much broader sweep. So I don't agree with the people who say, Michael is the weakest part of the case. There's been a fair amount of conventional wisdom that the novelty of applying the well-recognized law that allows Bragg to do a books and records case about campaign finance violations about state campaign law,

all of which has been done before successfully, and I wrote about them in the New York Times, again and again and again, that's been prosecuted. But never against the federal president. I should say a federal candidate in applying New York state law. That's right. I think I read from your reporting, from your reporting, I read that the Brooklyn DA convicted an assemblyman,

Clarence Norman, for soliciting illegal campaign contributions and for felony falsification on business records. That, however, and this is getting into the point of disagreement, here, not between you and me, but between you and other legal scholars, you know, this is, this is obviously a local race. This is a New York Assemblyman, but the people who disagree with this case, and I've read several essays of disagreement, the school of thought there, and I think it was probably maybe best articulated by Richard Hassan, who is a UCLA legal scholar, wrote this up in Slate. I'm just going to quote to you and get your response, quote, based on what I've seen so far,

the decision to charge Donald Trump with felonies in New York State is a man. mistake both legally and politically. He continues, quote, it is far from clear that Trump could be liable for state campaign finance crimes as a federal candidate. Moreover, state prosecutors may be precluded from prosecuting federal candidates for federal crimes under a rule called preemption, meaning they have to be brought by federal authorities rather than state authorities. Alvin Bragg is a state authority. He is not a federal authority. And so under the preemption, rule, they could maybe throw this case out or lose it. Could you define preemption for us? Just define preemption as you understand it and tell me why you're less concerned that preemption

could spoil this case. So, Derek, there's two issues that I think are, where I think Bragg has the better of the argument, but they're the two most contested, let's not say weakest, but they'll be the two most contested legal issues, and then Cohen will be the most contested factual issue. and a second contested factual issue will be Trump's intent. Would he have done this but for the campaign? I think there's proof beyond a reasonable doubt. So those are probably three and four, those two factual issues. One and two, we talked about, and it's not just Clarence Norman.

It's a wide array of political figures in New York who've been prosecuted books and records, New York State campaign finance violations, convictions obtained, but they were state figures. So applying that state law to a president is one. You're raising the other contested issue in this case, which is Bragg has said he's going to do belt and suspenders. He's going to apply state law and federal law. Can a state prosecutor apply federal law in a state prosecution? the answer to that question is preemption.

And there is a doctrine, but it has exceptions that federal prosecution or that the prosecution of federal campaign finance matters has to be done in federal court by federal prosecutors. That's what it is, in other words, preempted, blocked off for state. prosecutors. But here's the thing. The preemption doctrine is highly varied from issue to issue. And the preemption that applies to FICA, the federal campaign finance law statute, is as full holes as Swiss cheese. And again, and I wrote about this. in the New York Times, and the contestants are not going through case by case, just like on the state. They have to deal with Norman and the many other cases that I've itemized.

State authorities have been allowed again and again under this very gap-ridden exception-laden preemption doctrine on federal campaign finance issues, to prosecute matters against individuals who are related to or connected to federal campaigns. And I linked to all those cases in the New York Times. Is there one that's exactly on point? No. Are they analogous? I believe so. And we will soon find out.

But the brilliance of what Bragg has done is he's done belt and suspenders. He said, well, I'm going to try the state case. I'm going to try the federal campaign finance issue. He's not stopping there. He says I'm also, he's raised the possibility in the documents he filed with the court that he's going to raise a tax issue here. There was a tax conspiracy. So it's belt suspenders and the tax is kind of like duct tape. Belt suspenders and duct tape here.

He's leaving nothing to chance. as it should be because as you asked me a few minutes ago, you know, this is a very powerful case and I think Trump should be prosecuted for it. Thank God Bragg is doing it because the Donald Trump-Barr-justice department, which should have done it, didn't do it.

Last question before I let you go. I read your piece. I'm listening to your arguments. I do find them compelling. I'm placing that alongside the fact that there's a lot of people writing at the Atlantic, where I work, writing in the New York Times, like David French, who are no fans of Trump, who are also lawyers, who are also legal experts, who have not come to your conclusion. In fact, they've come to the opposite conclusion. They are upset with Bragg and upset that the indictment is not as much of a slam dunk as they wished. I mean, Andrew McCabe was just on CNN, saying that he's disappointed by this indictment. In your view, what is it that there's fundamentally getting wrong if you're confident that this case is strong and they're confident that this case is weak? Well, where would we be without debates? I think that they are at the most

fundamental level, misapprehending that this case is a very important democracy matter because it might have, out of all the cases we're considering, it might have changed the outcome of an election. I don't think that they're adequately accounting for, they say, well, it's novel, but they haven't accounted for the many, it's not just the Norman case, the many times that a state prosecutor in New York has gone after books and records cases based on state law campaign finance violations, which we have here. They are not accounting for, and state law allows that.

State law doesn't say you can only prosecute based on state violations. It says if there's a false book and record in New York that, and it's done for another, quote, unlawful purpose, different statutes use different words. It doesn't say that the unlawful purpose has to be a state one. So this bump up is actually allowed by New York law. Why shouldn't you be able to prosecute a books and records case if there was a federal cover up? That doesn't,

you know, that, that, that doesn't for the state law piece, there's no preemption. Then they're saying, well, but wait a minute, he's also bringing in federal crimes, but they're not looking at all of the preemption cases. And this, they don't, you know, haven't, I've done campaign finance at my prior watchdog group, grew, you know, I've done campaign finance work for decades. I advised President Obama on it as part of being his ethics are in the White House. When you look at those preemption cases, it's not as clear cut as they say. So I think they're, and then they have hesitations about the facts.

They haven't investigated the hush money case like I have for almost a year in impeachment. They haven't sat with Michael Cohen again and again with his story never changing. And, you know, some of them have not been practitioners. I've done these cases for 30 years, including in New York. So I did them all over the country. So these kinds of criminal cases. So for all those reasons, I respectfully disagree. But I love the debate.

Bring it on. And, you know, I linked to some of their arguments, many of their arguments, all of the main arguments that were out there in my writings and then attempted to respond to them. Great. Norman Eisen, thank you very much. And we'll soon find out who's right, Derek. Thank you very much. That was Norman Eisen. And next up, we have politics reporter at Semaphore, Dave Weigle. Dave Weigel, Semaphore, welcome to the show. Good to be here. Thank you. So first off, I just want your reaction to a historic day in American history, the Trump indictment. What does you see?

What does you read that surprised you? What were your big takeaways? Oh, it's hard to have a surprise today because I think there have been like Starworth movies analyzed from fewer angles that this indictment was that this moment in New York was. I did guess I got some amusement from George Santo showing up and then saying it was a media circus, which I think is the only climate he ever moves. in. But no, what was new was the indictment itself, and I feel that it was validating for people who have worried that while there are several ongoing investigations, which could lead to criminal charges against Trump, this remains the one that is very hard to nail somebody for, for several reasons. Yes, there's 34 counts of falsifying business records. There's Trump really guilty,

but there's not really a denial of Michael Cohen paying off Stormy Daniels before the 2016 election. I feel that every time that's in the news, it is generally bad for Trump and not good for him. But as a case that might nail him, and we now know there's not much more for the indictment than this, and we know that unless it's push, which probably there'd be an effort to,

Trump is not back in court until December. So there's going to be a whole campaign primary season where this is hanging over Trump and they're trying to dismiss it. Yeah, but that's what I think about it. The rest of the media circus around this was not new. And some of the hyperventilating about how, I'm not accusing you hyperventilating. I mean, it is unprecedented for this to happen to a former president,

but it's not unprecedented to happen to a politician. Like there have been crazier things. I've seen ex-governors and ex-members of Congress accused of and go to trial for. So that part of it, I feel like I'm missing, like, whatever is in, people's brains that makes them rip their garments and disbelieve that this could have a new president. I think, well, I don't know. Like, sometimes politicians commit crimes. What do you got to do? Trump is next due in court in December. That is so far from now. That is the middle of the primary season. I mean, so much can happen between here and then. He could be indicted for one, two,

three more crimes. How meaningful is it to you that the next time that he's doing, in court, we're going to be an entirely new reality in politics. Well, we had a dry run for this, which was the impeachment in 2019, rolling over in 2020. What it does among Republicans, this is much more tense than he was president, is say, we don't buy it. This is our icon, our hero, our Caesar. We're not going to, and I'm using the word Cesar, because I've read columns of Convernernerner to Caesar. We're not going to let these investigations stop him from staying,

president or becoming president again. That's the Republican response. I think in the Republican primary field, the response to this has been to criticize the investigation and not talk about the contents and try to move the conversation to something else. It is, if you've been watching Trump navigate the Republican Party for the last eight years and you wonder, are they ever going to get better at this? They're not going to get better at this. They have no strategy. They hope that maybe Republican voters are convinced that he can't win again because he's so under duress. But that's not what they're saying. They're kind of validating this idea that Trump is only being investigated and only being

charged because he is the essential man who's going to take back America. And the attitude, I guess I would describe as if any other Republican nominee would be less legitimate at this point, just because they would have benefited from a political prosecution. Nobody's really contradicting that in this race. the exception of Asa Hutchinson, the former governor of Arkansas, he's the one Republican running for president. He's at between 0 and 1 percent in polls, which I don't need to dismiss him as a person. He is. He said that Trump should be disqualified from running based on this.

That is something that most Americans, according to CNN poll, 60 percent of Americans agree with. Trump should be disqualified. It shouldn't be running again. But only 20 percent of Republicans agree. And their thought leaders, whether running for president, they host TV shows, they write books, they write columns. Their attitude generally is, yes, this is a – they handle it basically the way that – very different circumstance, but the, you know, prosecutions of Dilma Rousseff and Lula in Brazil were handled. I don't want to get into the weeds. They are not the same thing.

But within Lula's political alliance on the left, Rousseff's allies, the thought was they're doing this, disqualify this person from becoming president. There is no legitimacy. But look at Lula. He was very popular president who won 60% of the vote in his first two wins and won 4-52% last time. It hurt him. It hurt him to be seen as legally exposed. This is what I wanted to get at because I do feel like the conventional wisdom that is solidifying right now is that this is good for Trump in the primaries and it is bad for him in the general election. And that is because a gap has opened up

between the ideology of Republican supporters who have very firmly in his camp and the ideology, or at least the attitude toward Trump, of the great American middle. Is there anything, whenever there's like a conventional wisdom that becomes really, really conventional, there's always a little bit of me that's like, should we double check that?

Are we sure it's true now that everyone is saying it? I'm not entirely sure that I can think of a reason why this conventional wisdom is wrong, though. Do you have any pushback to this general idea that Trump will be sort of tailwinded by this indictment in the next nine months, but that once he, if he does, win the nomination, it will have soured a lot of independence and moderates against him. Yeah, I'm glad you keep delineating who is talking about this, because in Republican circles that that don't know what to do with Trump, they say one thing that I think sometimes they believe, sometimes they are trying to convince themselves of.

And I went back to 2016. There are things Donald Trump was accused of that were going to be legal problems for him. Stormy Daniels he paid to cover up. But we knew that Trump University was a legal problem. The fraud committed by Trump University, Hillary Clinton ran against it. Republicans worried that it was real and that it would hurt him and he might lose the election. And then once he won the election, they said, well, okay, you can't actually, you can't touch him anymore. He's the president.

Same thing with the documents they took from Mara Lago. Most voters think that was bad. The biggest issue in the planet for them, the most disagreed with Trump taking these documents from Mara Lago when they first heard about it. In Republican circles, it was backfilling. Well, actually, if the president says anything, takes anything, he's disclassified by his person. And it gets very weedsy and I think tedious if you're not super into this, the constant defense of Donald Trump. And you need to do it in the Republican Party because if he remembers, Republican voters,

I think more importantly, remember, if you don't stand up for Trump in real time or if it sounds like you're validating a criticism to him, you get punished for it. They are not out of this trap. And you could go down the list of Republicans, not just to vote for impeached Trump, but I covered lots of Republicans in primaries who, let's say, during the Access Hollywood tape, said he shouldn't have said that. And then four years later, the fact that they criticized Trump was used against them, they lost a primary. It's a very self-preservation-focused instinct going on in Republicans, and it is not

coterminous with what the rest of the electorate thinks. That remains their problem. It just, the one other thing I'd add is that Republicans, 35 percent, I say, maybe at this point two-thirds of Republican voters do believe that the election was stolen that Trump actually won it. That's been declining over time. But, Moser wasn't believe that. Well, it follows.

If you think that Donald Trump won the last election, you don't get into questions, like, is he unpopular? Are there people who don't like him? Does he need to change what he's doing to win? Does he need to run on this popular position instead of that unpopular position? You don't even have the conversation. You're like, well, no, he really want. So we used to run Trump again, but control the electoral system.

And I even saw today, I mean, this, I was writing, I was Wisconsin last week, ran about the Supreme Court race. Charlie Kirk, very influential conservative leads to turning point USA, you know, says matter-of-factly to his audience, well, this makes it harder to win Wisconsin 24. Well, why would it? Wisconsin's close. There's going to be an election in 2024. Democrats are going to spend a lot of money.

You probably will spend a lot of money. What they're saying is, well, we all know that, like, Trump, probably won the state last time, which he didn't. The Trump probably won, and he only lost it because of this chicanery with absentee ballots, and they're going to make it harder. What they're thinking of is, for example, the conservative Supreme Court in Wisconsin after 2020 said, hey, by our interpretation of the law, you can't have drop boxes. The new liberal court might say, actually, you can't.

And if your belief is, well, Donald Trump won that election, but they was stolen from him because of drop boxes, then sure, you're going to say, dang, the drop boxes are back. we can't win. None of that is policy. None of that is about what you run on. None of that is the image you present to the voter. And there are lots of them who liked Trump the second time. I mean, there were millions more voters who didn't vote for him the first time, voted for him. They don't care. They don't want this stuff. This is not what they're voted for and for. They're compelled. Like, oh, maybe he was better at handling inflation. Maybe he was, but we were safer in Russia was debating anybody. You're not even having the conversation.

you're just like, he did everything right, do it again, control the course. That's the one. And that is the, that's the dominant attitude in the party that, again, I mentioned one Republican who disagrees and he's polling between zero and one percent. Exactly. I mean, it's so interesting because Donald Trump has this reputation of Teflon Don and, you know, nothing gets to him and the Democrats keep shooting arrows and it keeps bouncing off of his exoskeleton. But in a larger sense, Donald Trump is not popular. This is a guy who lost the popular vote in 2016. I'm not saying he lost the election in the legal sense, he lost the popular vote. In 2018, they lost the midterms.

In 2020, he lost the election. In 2022, a lot of his preferred candidates lost races that Republicans, moderate Republicans think they should have won. Inditing Donald Trump is popular if you poll it. And even half of Republicans, I think I'm getting this from your own reporting, say that paying to squash the Stormy Daniels story before the 2016 election was unethical. Half of Republicans think that the underlying facts in this case, whether or not you agree with Alvin Bragg bringing the indictment.

They think the underlying facts speak to an ethical behavior on the part of Trump. He's not popular in any majoritarian sense. This gets to New Hampshire. New Hampshire poll that just came out, which has Trump with 44% of the vote. The rest of the field is splitting the other 56% of the vote with, I think, DeSantis, around like 29%. So it seems to me, like we are headed for an absolute potential sequel of of 2016, where Trump has under 50% support of the Republican Party, but the never Trump contingent

splits the vote all the way to Super Tuesday, and we end up with Trump being nominated. How realistic does never Trump, colon, two, the sequel, seem to you at this point? You never mean never Trump, but that fails. I feel like that's, that's very likely. One, they're, what the, the gas, the tank of never Trump in 2016 was the idea that Donald Trump could not win. And what really hurt them is that Trump's best, strongest competition once Rubio melted down with Ted Cruz. I do think, I mean, I think and it's funny that Chris Christie's back campaigning against Trump, had Chris Christie just laid off Murdo in a debate in New Hampshire.

It's possible that it gets down to a Rubio versus Trump race. Rubio is weak in a lot of ways as a candidate, but who knows? But that's gone. The idea, again, the idea, that he cannot win is not sellable in the Republican Party right now. A good example is that Nikki Haley is running for president against Trump wants to be the nominee, not him, whatever one thinks about her running for VP, which I don't bro it out of that. It's possible. But the way she puts it is that we have lost the popular vote in seven of the last eight elections. That is true. I mean, you could also say, say we lost the last elections.

Chris Sununu will say we lost the last three elections. That gets a little further. Trump lost. We lost the midterm. We lost 2020 effectively. He's not running yet. But when he is a poll, there's a New Hampshire poll this week, the governor of New Hampshire who wins landslide reelection, less and less, but he's been winning reelections for winning elections for a year, four terms, I should say. he is at 14% and Trump is way ahead.

So I feel that it's less what is going to happen to Trump ethically, sorry, legally, what are Trump's ethics for most Republican voters? The thought is, well, we know that already. And not just we think that we're okay with him being morally compromised, but we now think I'm speaking as the voice of the Republican voters. voter. We now think that when he is attached for something, it is because he's so effective.

It is that because they know he's going to take the presidency if they don't try to drag him down. That is not what Democrats will tell you. You can polygraph them. They honestly think Trump is a weaker nominee than Nikki Haley. I'll talk on and off the record about this. Like, boy, we hope it's not

Mike Pence. We hope it's not Mickey Haley. We hope it is somebody who's so unpopular that most voters say I can't possibly vote for him. That's not Republicans think. They don't talk to Democrats. They don't think that's true. They think everything Trump absorbs is because Democrats are so worried about it that they want him to go. And so you can get into the nitty gritty of all these cases, and they're just going to say, like, well, you're only doing that because you're trying to sack our quarterback. That is the attitude. It does seem possible to me, and maybe I'm just recapitulating what you said at the top of the interview, that this indictment is much more historic than it is in.

important. Trump is the favorite to win the Republican nomination, and he will remain the favorite, really, whether or not he's indicted. He is, after he wins, say, above 50% chance of winning the Republican nomination, going to be in a really tough race against an incumbent president, the contours of which will be shaped by a bunch of things that you and I can't really predict. Maybe we have recession in 2024. Maybe there's an invasion of Iran or something, or in Iran of a vaden's neighbor, like just some craziness out of the Middle East that can't even possibly predicted. But we simply enter sort of the jambalaya of 2024 politics that are difficult to predict. And that, you know, fundamentally, the indictment, while it is enormous news, doesn't actually

change the contours of the election that much. Is there something to that? Yeah, well, the essential fact about Biden is that he is very old. He's in his 80s. He benefits when he's not making news. I saw some people attacking New York Times today as they do for just saying, oh, it's a problem. The White House is trying to get his message out there and we're talking about Trump instead. It's like, well, it's not really a problem for them.

Like when people are not thinking that much about Joe Biden, Biden does not suffer. Like the idea that you need to have the president fixed in your mind you're not going to vote for him, I think, is based on nothing. It is a, well, I think it's based on media self-reflection. Might it be true for the primary in a way that it isn't for the general? I don't know if this is the perfect sort of contrast to draw. It does seem like Trump's ability to get and hold attention is useful as a weapon against Ron DeSantis specifically. But it's not necessarily useful as a weapon against Joe Biden specifically. Yes. Yeah.

So that that's a very good way of putting it. I think it hurts him. It overall hurts the, GOP and helps Joe Biden when the conversation is what Trump wants it to be about. I mean, an example I think about a lot is that Trump's administration, like, had anti-trans policies. It opposed critical race theory, opposed the 1619 project. It did so.

Memo's from the White House. Trump would criticize it. But when Trump was doing it, 60% of the country said, I don't like this guy, I don't care. Trump was gone. And then in 2021, there were these elections in Virginia and Republicans are like, what we really to do is get rid of the 1619 project and these like gender stuff in the schools. And without the face of Trump, it kind of sold. It got over. A lot of voters said, I don't like that. I'm a Democrat, but that sounds bad to me. When Trump reappears, the funnel that he builds around himself

to get the attention, it polarizes things. And there's, I'm blanking on the exact political scientist. Ezra Klein years ago from New Yorker kind of did a summary of it. Well, like, political science is pretty clear. Like, when a president, even if he's popular, starts talking about something, it now polarizes. Only the partisans agree with the president. When he's an unpopular president, unpopular figure, it polarizes. And most people are like, I don't agree with that. I mean, I feel like it very clearly, like we had in 2022, Republicans running very Virginia-like campaigns where they could. But Trump was back and Trump was campaigning everywhere. And Trump was saying, you know, turning rallies into rambling about 2020. And people said, I don't like that guy. And he

voted for Democrats. That's, that's, it's so weird about the last two years. It's just the disbelief that 2020 was real and the polls are real, has persisted even after the midterm, which showed, actually the polls are pretty, pretty right. And there was a month, I would say, because I was going to a Republican, the R&C meeting and the Republican Governor Association, Republican Jewish Association, there was this kind of perestroika of Republicans saying, hey, whatever we think of this guy, can't win. We need like somebody electable. And then that faded because we got further from the midterms and Republicans were like, well, I don't know. Like that's, that was a fluky election. Like, we know that Trump can win. Let's go back to him. My last question for you is, you know,

I wrote down a note as you were talking where I said, you know, the GOP primary is more of a media primary while the general election is more of a fundamentals election. I'm not saying fundamentals don't matter in the GOP primary. I'm not saying that media doesn't matter in the general, but it seems to me that there's something about attention politics that is more important for Republicans in their own primaries. And it makes me wonder, you're maybe a perfect person to ask this question to, because I've sort of been circling this point, especially in talking to some friends on Twitter. And the fact that I'm talking to them on Twitter makes the following question ironic.

Does the GOP have like a touchgrass problem? Like, DeSantis talks so much about wokeness. And Trump and his speech last night was talking about all of these. issues that were an extremely online interpretation of the indictment. And a lot of people were saying, I don't even know how people who aren't constantly all over, you know, the subreddits and the truth social posts would even understand half the things that Trump is talking about. Like maybe, I guess there's two questions here. One is, do you agree with this premise that Republicans have this two online problem? And two, if you do agree with the premise, where

does it come from? Well, I generally think I agree. The roots are very long. Nixon's concept of the silent majority is now 54 years old. But at the same time Nixon was talking about that and saying there's an East Coast elite media that doesn't understand the rage of the actual working American, there was an effort to build up a more conservative alternative. media. I think that has succeeded to the dreams of everyone who thought about it 50 years ago.

If I'm a Republican voter right now, and I talked to lots of voters, both parties or independents, but I talk to Republican voters, I'll ask them sometimes, like, what do you, you know, what are you, where do you get your information? I'm not demanding they read my stuff, like where you get it. And they have tuned out for years, CNN, your Times, AP, they listen to, I mentioned Charlie Kirk, they listen to Ben Shapiro, they listen to Joe Rogan to some extent, and I honestly think it's good to have a diverse media diet. I'm not allergic to listen to anything like that. But I do think it has led to, you mentioned touching grass.

I think it happens pretty frequently, like Republicans are bringing up a concept, and I've heard about it because I've listened to Charlie Kirk, and then I ask anyone in like my newsroom or like that other person's up by the person to pay attention to politics. do you know what that means? They don't know. It is so obscure they don't know. This happens on the left, but the media infrastructure on the left, I mean, people have tried to start a left-wing media company that you need instead of, you know, or America, you can read that instead, or listen to that instead of watching CNN. It doesn't work. Like, there still is a connective tissue between Democrats, liberals, and the establishment media. I saw it when I was at the Post, during the Trump years. people subscribe more and they loved it.

They would thank it for what it was doing. And it is still, for most people, I think information is getting more and more atomized all the time. But for most people, like, was it on the TV news that night? It's more determinative, like a thing that happened. You get fewer code words. You're less aware of certain scandals. It takes, I mean, you saw this, I mentioned CRT and stuff that Trump talked about in 2020.

It took like a year for people, for that. to get enough into the mainstream conversation through conservatives pushing it that there was a political constituency to stop, you know, to take some race lessons out of school, et cetera. But it was very confusing to people for a very long time. I mean, you saw this with the grumer branding Republicans used for gender issues. That sort of sounds weird to a lot of people. And the idea is, yes, but if they unplugged from the, you know, coma inducing mainstream media and they see what's really going on.

Well, it probably is like, most people are not going to do that, not because they are ideologically attuned, but because they're busy and they don't care. Like, it needs to rise the level of, why is this thing so bad? And that's why I think, although it might be fading now, like Democrats saying things like we should defund police departments and put more resources into something,

into social welfare, that didn't really click until, like, crime went up. And people said, well, I remember Democrats saying that. But it took a lot. They didn't care that Democrats did, like, land acknowledgments, which they also do, which I think Concert is also find very silly and annoying. They don't care. This is like the world people operate in. They would mostly would like politics to leave them alone and they get angry when it's not, either it's because the government service is failing or because something stupid is happening, but they generally don't care. And I think,

you're right, Republicans at this point are so invested in alternative media that is trying to change the narrative that they often just, they're three weeks through a year ahead of something that most people don't care about. I think that keeps happening. And I think there's also some final thing I'll say that there's some denial. This Wisconsin election last night, their Democrats said from the outset, hey, we're going to run on, we'll keep abortion legal and we're going to, you know, we believe in democracy, so we're going to revisit these maps and these voting rules. And Republicans had a couple messages, but they never, came up the great response to the abortion one. They just said, like, well, that's, that's a

partisan distraction. And they had a lot of advertising about just the importance of a non-partist, a unbiased court, a judge that they just came up with some stuff that just was a little to Mark Levin, like a little too conservative that didn't make, didn't appeal to somebody who says, you know what? Actually, I'm kind of worried that abortion might be banned in Wisconsin. They never had an answer to that because they didn't think they needed one. It turned out they did. Like, they can, like, lots of Republicans can win elections in safer states, without doing any of this stuff. But I feel like that, too.

I said the final thing. There are other point I'd make is that, like, a lot of states, there are no competitive politics anymore. If you're in Missouri, you have a supermajority. If you were in Alabama, you're a super majority. And things can rocket through there with no political consequence to the Republican Party whatsoever. I do think then when you gear up to, like, campaign in Wisconsin, you don't what the hell people are talking about.

Because, like, it's a different set of issues and a different set of concerns, and there are political consequences. You can, like, lose an election if you go too far right. The big irony to me, from a demographic standpoint, is that for a long time, we've been talking about how millennials and Gen Z liens left, and you'd think in terms of news diet, that this is the demographic that would more likely rely on rabbit holes of the internet to get their news from. But it turns out that the most rabbit-holed contingency in American policy, is the right. And I know that some listeners who are more conservative are going to say, no, that's not true. The left has its own extremely online weirdness. Of course they do.

But look at the president. Look at President Joe Biden. Is there anything extremely online about this guy? I mean, can you imagine Joe Biden doing like a land acknowledgement? This is not, this is not an internet poisoned mind. This is guy, this is someone who I think one of the benefits the administration, frankly, is that they seem to be almost optimally online. They seem to have an awareness of a lot of online discussions, but they don't fall into these rabbit holes that prey on this majority illusion that lots of people fall prey to online, where they say, I got 10,000 retweets for this message. Therefore, it is broadly popular from a majoritarian standpoint in the electorate. That is an illusion. It is a delusion that I think has gotten a lot of certain parts of,

certainly the left, but specifically the right in this conversation, caught into thinking that certain positions are significantly more popular than they are. Dave, I know that we promised you that you could run at 1.30, Steve, if you can make a phone call, go make that phone call. Thank you so much for talking to us, and we'll have you back soon. Okay, well, thank you very much. Thank you for listening. Plain English is produced by Devin Manzi.

If you like the show, please go to Apple Podcast or Spotify. give us a five-star rating, leave a review, and don't forget to check out our TikTok at plain English underscore. That's at plain English underscore on TikTok.