Plain English with Derek Thompson - The Case for Indicting Donald Trump

Episode Date: October 18, 2022

For years, liberals have deluded themselves into thinking that Donald Trump was always on the verge of some calamitous legal defeat. Robert Mueller was made into an icon of the left. But no charges were filed. The Russiagate theory had a lot of smoke, and even some fire, but it failed to put Trump in a courtroom. At this point, you could be forgiven for checking out entirely on the efforts to charge Trump with crimes, since they all seem to end the same way. Without an indictment. If that’s going to change, it will largely rest on the decision making of one man: Merrick Garland, the attorney general of the United States. In a recent essay for The Atlantic, staff writer Frank Foer spent hours talking to Garland to understand who he is, how he thinks, and how his approach to law could help us predict the next chapter of the Trump legal saga. Foer comes away with a big prediction: The indictment of Trump is now "inevitable." And he’s here to tell us why. Host: Derek Thompson Guest: Frank Foer Producer: Devon Manze Learn more about your ad choices. Visit podcastchoices.com/adchoices

I'm Yossi Sallick, and I'm the host of Bandsplain, a show where we explain cult bands and iconic artists by going deep into their histories and discographies. We're back with a brand new season at our brand new home, the Ringer podcast network, tackling a whole new batch of artists, from grunge gods to power pop pioneers to new metal legends and many, many more. Listen to new episodes every Thursday, only on Spotify. Today's episode is about a big, important question that could determine the next American American president and the future of American politics entirely. Should the U.S. government indict Donald Trump? Now, depending on your ideology or your appetite for utter political chaos, your answer to that question could be anything from absolutely not, no, please, no, to absolutely yes, but I don't

even know which the 10,000 things that Trump has done were even talking about anymore. So for the purposes of focusing us in today's podcast, I think we should keep front of mind three alleged crimes that deserve our attention. Number one, there are the events of January 6th where Trump encouraged a crowd of election deniers to march on the Capitol, which they invaded in an attempt to disrupt an electoral process. Second, the Department of Justice is also investigating Trump's attempts to subvert the 2020 election by installing an alternate slate of electors that would have thrown out the votes of Democrats to give him the win.

Third, maybe most importantly, certainly most recently, we've learned that when Trump finally did leave the White House, he took classified documents with him, which he then refused to turn over to the National Archive, which he then lied about to the Justice Department, which then searched and seized more than a dozen boxes from his Florida residence at Maralago. For years, liberals have utterly deluded themselves into thinking that Trump was always on the verge of some calamitous legal defeat. Bob Mueller, remember him, who was made into an icon of the left, but no charges were filed in that investigation.

The entire Russiagate theory had a lot of the... of smoke and even some fire, but it failed to put Trump in a courthouse. And at this point, you could be forgiven for checking out entirely on the efforts to charge Trump with crimes, because they all seem to end the same way, without an indictment. If that's going to change, it will largely rest on the decision-making of one man, Merrick Garland, the Attorney General of the United States. In a recent essay for The Atlantic, staff writer Frank Foer spent hours talking to Merrick Garland, his friends, his former colleagues,

to understand more about who Garland is. How does he think? How might his approach to law allow us to predict the next chapter of the Trump legal saga? And Frank Fowler comes away with a big, bold prediction. The indictment of Donald Trump is now inevitable. And Frank is here to tell us why. I'm Derek Thompson.

This is plain English. Frank Fowar, welcome. to the podcast. Thanks for having me. So you recently wrote a profile of U.S. Attorney General Merrick Garland after spending some time with him and talking to the people around him. So for people who are curious to know, is this the man who will become the first Attorney General in American history to indict to former president? What should we all know about who Merrick Garland is? Merrick Garland, I think most people knew of Merrick Garland before he became Attorney General as the guy who never became a Supreme Court justice.

I mean, it was his lifelong ambition to be a Supreme Court justice on three separate occasions Barack Obama considered nominating him for the job. And it was only on the third occasion when he seemed too old to get the job that it actually fell into his lap. And then it was denied to him by Mitch McConnell, who transgressed every norm in the history of the U.S. Senate by denying Merrick Garland, even a hearing. before the Senate Judiciary Committee. And he is a guy who is known as a very cautious institutionalist.

He's kind of a creature of the legal establishment. And so he inherited this job of Attorney General as the nation's chief law enforcement officer coming on the heels of the Trump administration, which is essentially trashed the Department of Justice. It had ran roughshot over all of its norms, It used the department to punish political enemies and reward friends. And Garland was the guy who came in to restore the Justice Department,

to have it return to ways that it operated before the Trump administration ruin the place. And so that was his job. That was his mission. And then on the day that he is announced, or sorry, the day before he's announced as Attorney General is January 6, 2021. And so he comes into the job and all of the sudden he thinks he's going to do one thing and this massive case falls into his lap. And I think when I talk to people around him, they all said he came in hoping that he was going to be the guy who was going to lower the temperature around legal issues in this country. And instead, he's faced with this case that's filled with all sorts of contentious issues that might very well result in him. having to indict the last president of the United States.

And so people have always wondered, like, is he really going to be the guy who's going to go all the way to do this thing that's so unprecedented? Or is he going to revert to all of these cautious instincts that he accumulated over the course of a lifetime? He is a deep institutionalist. I mean, even as Garland's Justice Department

is investigating the president, he is also defending Trump in a defamation lawsuit filed by E. Jean Carroll, a writer who accused him of raping her. He's also, as you wrote in the Atlantic, permitted the special prosecutor, John Durham, to continue to investigate the origins of the Russiagate case. So it's really bizarre for me as someone who is not at all deep in the inner workings, the Justice Department, to think about this guy overseeing a bureaucracy that is simultaneously investigating a former president and serving as his attorney. Maybe just,

help us unscramble this? How is all this happening at once? So there was a phrase that you hear people in the Justice Department attribute to Merrick Garland, which is return to normal order. And so when he looks at something like the two instances that you mentioned, his instinct is, well, these are prosecutors in the Justice Department who are telling me that this is the right course for us to take. And I look at the precedent, I look at everything that's happened in U.S. legal history. And I say, like, well, I'm may not like doing either of these things, but if I'm just adhering to historical practices and norms, then I really don't have a choice but to do these things. And so that's one thing. And then I think you

look at the cases against Trump and other aspects. He keeps returning to another phrase, which is that no person is above the law. And so that's the norm that he's trying to preserve in those other cases. it does create this dissidence where, like, on the one hand, he's forced to defend Trump. And then in the other hand, he's forced to consider inditing Trump. It's almost like a Greek tragedy that his extremely conservative viewpoint about the role the Justice Department is leading him to take on a potential action that is extraordinary, right? Like, he's coming into office saying, I'm going to just follow the law, I'm going to have the most basic opinions about legal norms. No man or woman is above the law, but that extremely basic

attitude might lead him to be the first attorney general to indict a former president, which is, I mean, I think we can agree, like a kind of crazy proposition. It so obviously opens up a Pandora's box, even if it's just following legal doctrine. You spent all this time with Garland, the people around him, you concluded that it is, quote, inevitable, inevitable that the Justice Department will indict Donald Trump, which, be totally honest, surprised me. I'm not entirely sure that I agree, but you did the reporting, and I didn't. Tell me why you think it is inevitable. So I think it's, he's going to be reluctant at every step along the way. But I think that he is somebody who came of age professionally.

in the late 1970s. And in the aftermath of all of the horrible things that Richard Nixon did, there were a succession of three different attorney generals appointed by Gerald Ford and Jimmy Carter, who did the work of creating the modern Justice Department. And their job was to insulate the Justice Department from political pressures.

And the third of those attorney generals was a guy called Benjamin Civilletti. And Merrick Garland worked for him. And he was one of his special assistants and sat by him as he edited the rules that created the Justice Department. And so the core of those rules was to avoid political pressure. And at the core of that sentiment is that the Justice Department should never protect friends and it should never punish foes. And what it really needs to do is kind of very in this very straight ahead sort of way, apply the law. And so I would say that, you know, there are a number of cases that the Justice Department is looking at as it relates to Donald Trump, some of which are very complicated, some of which are just so screamingly straight ahead, straightforward cases where the Justice Department is dealing with, I think, fairly binary issues that are just very simple.

And if they were to ignore Donald Trump's behavior, they would essentially be undermining this concept of the rule of law that Mara Garland is so devoted to defending. So at any given moment, Donald Trump is always being accused of like 17,000 different things at once. And it's very confusing, I think, for a lot of people, even those that are following the news somewhat closely to disentangle all the different things that people are saying Donald Trump did. tell me what cases you are looking at when you make the determination that you think it's relatively inevitable that he'll be indicted. All right. So let me just give you a little bit of a taxonomy to begin with because part of the image of Merrick Garland is this slow-footed, cautious, institutionalist relates to the investigations around January 6th. And so we've had this really stark contrast between the congressional committee that's investigating January 6th,

and the Justice Department's own investigation. And the Congressional Committee has always flexed and said, see, this is the way you do it. Like, we're moving quickly. We're starting with the theory of January 6th that, you know, we talk to the foot soldiers, but we're really starting at the top because we know that it was Donald Trump who incited this mob to go invade the Capitol. And so we need to really just focus our efforts on pinning the crime on him.

And Garland has approached that in almost the opposite sort of way because there is a textbook way that the Justice Department approaches a big investigation, which it's like, I mean, we see it with mafia cases or drug drug, drug cases where you start with the street dealers and the mules and then you work your way up the ladder until you get the head of the cartel. And so that's the way that he's approached the January 6th investigation. And the January 6 investigations are very complicated because they're free speeches. issues that are involved with them. And there's questions about motive that are very hard. And the congressional committees have all made it look so easy because they've told a story, but they haven't made a legal case. And in fact, they've never had to deal with because of the way that the committees were structured, there was nobody on the case who was a Trump defender. So witnesses were never really cross-examined. There's a lot of hearsay evidence that was introduced

into those trials, into those hearings, which were very compelling, but would never stand up in court. And so I think the questions about January 6 are very complicated. That's a question about whether Trump played a role in obstructing a congressional hearing or was part of a seditious conspiracy. I don't really expect an indictment in those cases to come anytime soon. Right, because what seems difficult about January 6th, and I've been following the hearings, is that, of course, what happened at the Capitol was both a protest, which is clearly protected by the First Amendment, and also an assault, an attempted invasion of the Capitol, and, you know, different people were trying to do different things in terms of, you know, maybe some of them were just

there for the LARPs, and some of them were there to actually overthrow an election, and courts are going to figure out who intended to do what. But it seems to me, and just correct me a few things is wrong. It seems to me that we don't have a smoking gun piece of evidence where the president says to the people who are charging into the Capitol, I, Donald Trump invite you, beg you to charge into the Capitol to attempt to overthrow this election. Instead, what you have is Trump doing what he does, saying a lot of stuff that isn't true, and then doing a lot of wink-winking to his deputies to say, it would be really lovely if someone found 11,000 votes from me in Georgia, It'd be really lovely if someone maybe, you know, cancel this election.

But we don't have the smoking gun here showing that he was explicitly seditious. Am I wrong there? I think that that is correct. I mean, I think they're close just because his public statements just walk right up to that line. And I think if you were an attorney general who didn't care if you lost that case, like you could bring it. But then you would be inviting all sorts of other questions about whether you were actually being a fair-minded attorney general in the course of doing that. And I, so I think that that's it.

And the other thing that just struck me watching the congressional hearings last week is that there's this circumstantial case that they were trying to bring throughout, that they were never able to really fully connect the dots on, which is that one of the president's, the ex-former president's advisors, outside advisors, and oldest friends is a guy called Roger Stone. And Roger Stone sat at this place where there was a nexus between the right-wing paramilitaries who were the architects of the invasion of the Capitol and the ones who had the most advanced plans spoiling for violence and the White House.

And that Stone was the person who was communicating with both of those parties. And it's clear that the committee thought that there was something there and they could just only flick at it. And to me, this also highlights something that's very important about the Justice Department investigation, which is that, you know, in our society, which, you know, wants instant gratification, we kind of wrestle with the fact that some of these investigations are just complicated because the actors tried to obscure, they knew they were doing something wrong. And so they deleted all of their encrypted messages.

And so there isn't a trail of data. that kind of ties everything together in this neat, instantly presentable bow. And so that's why the arduous work that the department does of flipping people along the way is the only way, really, to be able to get, move up the ladder from the mules to the bosses. So that's one, that's one investigation. Yeah, let's talk about the second investigation. Because it seems like if we're just talking about January 6th, it's not entirely clear that an indictment is forthcoming. They're getting closer, closer to maybe having the smoking gun piece of evidence, but they're not there yet.

So what's the second vector along which the Justice Department is investigating Trump? Well, so clearly there's also adjacent to January 6th, there was this scheme to introduce a fake slate of electors in various states who would be presented to the Congress as legitimate in that there was this fraudulent conspiracy to, execute that. And along the way, I mean, the Justice Department has been explicit that they're pursuing this line. And they've subpoenaed fake electors from Arizona and I think Pennsylvania. And so it's clear that this investigation is churning along. But before you get to somebody as high as Donald Trump, you would expect that they would have indicted by now some of the actual state legislatures who are involved in the scheme, some of the masterminds of that scheme, and they haven't. So I don't think that that, an indictment in that case for Trump is anywhere remotely close to

happening. Okay. So at this point in the podcast, someone's like, all right, well, you've already talked about two different cases where you don't necessarily see an indictment forthcoming, but you also think that an indictment is inevitable. So that leads us to case number three. Case number three, I imagine, is the Mar-a-Lago mess. before we get up to the question of what happens to Merrick Garland v. Donald Trump,

let's talk about where we are in the Mar-a-Lago mess. What do people have to know about the story up to date? Right. So like a president produces millions of pages of papers over the course of their term. And those documents are officially the property of the United States government. And at the end of a president's term, they're supposed to get carted off to the National Archives. But when Donald Trump left the presidency, he carefully packed himself, at least as it relates to some of the paper that he wanted to take with him as he left the presidency.

And even though he was supposed to give it all back to the archives, he very explicitly, intentionally took it with him to his Beach Club in Florida. And so the Justice Department hears from the National Archives that these papers are missing. And some of these papers relate to very, very precious government secrets. And so there's a clear national security interest in retaining the paper in a safe sort of way so that it doesn't end up in the hands of people who could use it to undermine the interests of the United States government. And so the archives and then the Justice Department go and very politely ask Donald Trump to return the paper. And Donald Trump doesn't return the paper.

In fact, does all sorts of things that suggest that he's never going to return the paper. And it seems based on reporting that we have, it's unclear what the source of this reporting is, but that Trump ordered people within Moralago to move the documents around in such a way that they would be harder for the Justice Department. to ever recover them. And so here you have something that's very, very black and white, that you have a president who's broken a law, which is the laws that govern what happens to presidential papers. You have the fact that he's very clearly obstructed the Justice Department as it's sought to return these papers.

And I think if you're Merrick Garland, there are two things that start to enter your mind. The first is, like you've said that no person is above the law, yet Trump is acting in a way in which he is above the law, that these laws don't pertain to him. So I think that that case would be hard unto itself. But the fact that he's obstructed justice in such an obvious way, I think is something that Merrick Garland is going to find. almost impossible to swallow. Because they've given Trump all of these opportunities to comply, and he's resisted. And just to go back to an original theme of this conversation, we described Merrick Arland as an institutionalist. And in the course of this war that Trump has conducted with the archives in the Justice Department, he's made war on the Justice Department. He's accused

FBI and Justice Department officials of planting evidence. He's accused them of nefarious motives. He's unleashed a wave of threats and abuse targeting the Justice Department. And it's hard to make Merrick Garland's blood boil. But this is the sort of thing that makes Merrick Garland's blood boil. It also seems to me in this case that Trump takes these classified documents that could include secrets about foreign leaders. It could include information about agents in the field, the movement of our enemies, information about nuclear weapons. He takes them, the National Archives asked for them, and then when the Justice Department is contacted by the National Archives, we have a former president who won't give classified information back, he seems to clearly, or his lawyers seem to

clearly lie to the Justice Department and say, we don't have them or we don't have them here at Maralago. And so the DOJ subpoena's video evidence of people moving boxes in and out of the basement after they say there are no boxes in this basement of Maralago, it just seems like the clearest possible case of you say one thing to Justice Department about classified information, and then they immediately see on a videotape that the opposite is true. That's why far more than January 6th, which seems like an extremely unethical thing, wherein I, I can't find a smoking gun moment of clearly illegal behavior in the part of Donald Trump. This seems like another case of ethic of, of, of, of incredibly immoral behavior, where the

proof of the lie, the proof of obstruction is much clearer because nothing is clearer than a videotape. Yeah, that's right. So let's put ourselves in Merrick-Garland's mind at this moment. Like, I don't think, what you just described in the way that you and I have been thinking about this all along, we see. this constellation of cases is somehow interrelated that there's a bad guy who's being who's unaccountable and we you know we couldn't nail him on these first two cases so we're going to nail him

on this obvious third case. I don't think that's the way that Merrick Garland thinks about these cases. I think he'd find that kind of thinking abhorrent because you don't you don't use the Department of Justice to penalize somebody just because they're an enemy or just because is they're a deeply unethical person committed to the destruction of democratic institutions, right? And so for him, he has to decide the Mar-a-Lago case on its own terms and its own merits. And even then, even as it's black and white, there's this moment in any case where the prosecutor has what's called discretion. And so he can decide that it's not worth bringing a case against a former president, for whatever reason he decides that it wouldn't be worth it to do.

And so I just think that when you get to that moment of prosecutorial discretion for Merrick Arlen, as it relates to this case, the fact that Trump is assaulting something that's so near and dear to not just his heart, but to the way in which he thinks that our democracy functions, which is this question of is anybody above the law. When Julia Kayem came on the podcast, I talked about the fact that he's basically treating the White House, which a typical president should revere as a kind of museum as a gift shop. Like information comes across his desk. And he's like, ooh, this could be valuable. Information comes across his desk.

This is a nice collectible. Maybe I can find some way to monetize this later. And if I'm garland, this goes a little bit to, you know, thinking like an ordinary person rather than like the attorney general. But when you think about who Donald Trump is, this is someone who's talent, extraordinary. talent across his career is to make a business opportunity of every piece of land and every piece information that he sits on. And you really don't want a former president creating business opportunities of information about agents in the field and the affairs of our allies and the reality of our enemies. You don't want someone trying to monetize this sort of thing. So the urgency

around putting his feet to the fire seems much higher here versus something like January 6 where fundamentally, terrible as it is, you are investigating an event that is over. Ongoing attacks, you could argue,

on American democratic processes are not over. But January 6 itself has concluded, but there are still reasons to think that if Trump could keep some material in one basement of Marilago and lie to the DOJ about it, well, why should we trust that all of the information was gotten by the first search and sheiser by DOJ.

Like, this just seems like a much more important thing from Eric Garland to move on. The only thing that I would quibble with is in your analysis, which I basically agree with, is that, you know, January 6th was a day isolated in history, but it is part of kind of an ongoing attempt to subvert American democracy. And there are important reasons to punish that behavior in a world. order to deter it from happening again. And in that regard, I do think that all of these cases that Merrick Garland has brought to date actually do play an important role in deterring the repeat of January 6th.

I think, you know, I would wish personally as a citizen that he punished the fake elector schemes and some of these other schemes that are adjacent to the day itself, because those schemes clearly could be repeated again in the future. and there's a, to use a phrase from the January 6th commission, like a clear and present danger posed. And so there's a need for an important intervention now. When would Garland have to make this decision to indict Trump for, let's just say, Mar-a-Lago specifically?

Yeah, so one of the things that I engaged in was a kind of a thought exercise where I called former prosecutors and asked them, what would the trial of Donald Trump look like? And when I started to engage in this thought experiment with them, the question of timing was something that they brought up almost instantly, because you have to assume that there's a high possibility that there will be a turn of administration in 2024 where Republicans, maybe even Donald Trump himself,

assumes power and kills whatever investigations, whatever cases in motion on the first day that they're back in office. And so you have to start to think backwards from that date. And so you've got the day January 20th, 20, 25. You have a year, maybe even slightly longer for a trial to get scheduled. And so you need to make an allowance for that. Then there's a period where even there's a trial itself. And a document's trial would probably be much more straightforward.

than a case about January 6. When I asked him how long a January 6 case could take, I mean, I was told it could take almost six months. A document's case could take anywhere between two weeks and two months, is what I was told. And so you have to price that into the calendar. And so, you know, basically what I was told was by the end of the spring of the next year, there would probably have to be an indictment in order to have. a trial before the turn of administration.

And this is where to me the future just becomes almost unthinkable. Like I can't fully concretize what happens. Like, all right, so let's say Merrick Garland indicts Donald Trump. And six months later, or excuse me, a year later, a trial starts. And let's just say it's a really complicated trial because this is the first trial of a former president. So rather than take two weeks to two months, it ends up taking, you know, whatever, three months, four months. We are now basically in the middle of a presidential election. We're in the middle of the presidential election and Donald Trump has just been, let's just say, convicted for obstruction of justice

in the case of absconding with pieces of classified information from the White House. What happens then? I mean, there's a precedent, which is Eugene V. Debs, the socialist candidate for president in 1920, ran for president from prison. So, like, it's not, it's not, I mean, I don't, we don't know that Donald Trump would be convicted. We don't know that Donald Trump would go, would be sentenced to, to prison for whatever he's indicted for. You know, maybe it's just community service, but, or maybe he's not indicted at all. But, but it is the whole spectacle, just beginning, from beginning to end, is, is, is, kind of boggles the mind. The idea that this guy who's sitting at the defendant's table

during this trial would also be running for president is like, is it in and of itself something that is just so complicated. And so, you know, I thought about trial management in the course of this. So some of this depends on the judge who's randomly assigned, would be randomly assigned to his case. There's some judges who are Trump appointees, who are kind of, or cantankerous old codgers, who would be sympathetic to Trump and who could, like, abet his efforts to delay, because Donald Trump's primary tactic is going to be to delay as long as possible, preferably to January 21st, 2025. On the other hand, there are judges who presided over the case of Roger Stone and Paul Manafort when they were, when they were tried for

their role in Russia-Gate-related crimes. And those judges were very, very strict and ended up imposing gag orders. So Roger Stone, who has a disposition that's not dissimilar to Donald Trump's, who, you know, can't resist giving inflammatory quotes or to attacking his average his adversaries. By the time Roger Stone's trial was over, the judge had restricted his ability to post on social media. Judge it forbade Roger Stone from using proxies to speak on his behalf in the press. And so, you know, I as a judge, like, could find myself very, very frustrated with Donald Trump as a defendant and feeling like, well, if I'm just going to treat him like any other citizen, then I'm going to prevent him from using this trial as a campaign platform.

It's, I mean, it's so, so strange to put together what you consider an, inevitability and what at least the political betting websites consider a probability, which is Donald Trump narrowly edging Ronda Santis in the Republican primary and becoming the Republican nominee for president in 2024. You have a situation where it kind of the same way, what occurred to me, and maybe this is a terrible metaphor, but the same way that Joe Biden was essentially under like self-imposed house arrest in his basement for a lot of 2020, you know, just basically like sending out messages and recording, you know, videos straight to camera videos with his, wife saying, here I'm in the basement, COVID's really bad, you know, vote free for president.

The president is trapped at a defendant's table. So it is incredible material for Fox News, incredible material for the right, because this impression that the right has that the left is constantly trying to demonize Donald Trump is cast in vivid technicolor on people's televisions because there he is being prosecuted by the DOJ. But at the same time, I don't want to like go full Galaxy Brain here and say, oh, this helps Donald Trump. It's like, no, no one wants to run for president while being accused of obstruction of justice, maybe being incapable of tweeting or running normal presidential campaign protocols because the judge won't let you out of whatever courthouse area in Florida this trial is happening. It would be an absolute utter mess.

Yeah. I mean, there's no way. There's no way around it, which is why. I'm just to, I'm not to, the headline in my piece used the word inevitability. And my article, I certainly allow for the possibility that while I think that it's, this is the likely outcome, I could also be wrong about this. It's a piece of speculation. But I think that everything you just described is something that can't help but also enter into Merrick Garland's mind as he ponderes this decision. And if there's a reason why I'm wrong, it's that he looks forward.

He imagines this whole spectacle. He worries that maybe he's actually putting his thumb on the democratic processes by doing this in a way that he's not comfortable with. I mean, we all think back, obviously, to James Comey in the announcement he made about the investigation into Hillary Clinton's email and the impact that that might have had on the course of the 2016 presidential election. And I think clearly, for Merrick Garland, for other people who've examined that episode, that was a bad, this bad procedure. It was it was non, it was interference in a presidential election in the guise of non-interference. So I'm sure, I'm sure that this has to enter into Merrick Garland's calculus as he ponderes what he does. because how could it not? It seems to me like there's really no decision here that Garland can make

that doesn't bear significant risk to the legacy of the Justice Department. Because if he indicts the president, the far right will despise him and will use, we'll see this as the opening of a Pandora's box and use it to indict former Democrats for decades. At the same time, if he's seen as failing, to hold Trump to account. The left will despise him and perhaps even reasonable lawyers

will consider him a coward. They'll say you had evidence in your hands to clear obvious evidence of obstruction of justice. You had a videotape in your fingers showing that the president was lying to you about holding state secrets and you did nothing. You were the attorney general of the United States

and you did nothing? What kind of a law enforcement agent, are you? I, it really, it's excruciating to think about. And I, I don't think there is a path forward here that doesn't bear that kind of risk to the legacy. I think if you look at impeachment and the way that impeachment over the course of my own lifetime has been transformed from this thing that was used only once back in the 1860s in extraordinary circumstances to something that is now kind of a routinized piece of American politics, it's hard not to imagine. It's hard not to imagine. imagine that once you do the same thing with the indictment of a former president, that we end up in a situation that is akin to, it's just something that's afflicted Ukraine, where every former Ukrainian president gets prosecuted by the person who's replaced them. And it's created this horrible, horrible undemocratic practice. But what you've just described, this no-win situation.

that Garland finds himself in, I think, you know, in my piece, I described it as actually being a fairly liberating thing. So all of these, all of these external considerations really cancel each other out. If you try to appease the right, you're going to end up disappointing the left. If you think that you're preserving American democracy by preventing a civil war, you're undermining American democracy by allowing the rule of law to be run roughshod over by allowing this guy who's tried to disassemble democratic institutions to just keep on going. And in the end, what choice does Merrick Garland have? It becomes a matter of conscience. And for him, a matter of conscience is really ultimately about this principle of the rule of law. And so he's just stuck in this situation where

to think about the externalities means like you really just like your your your your institutions are going to get slam no matter what all you can do is faithfully apply the law these are his canonical text like this is the thing that he's actually most comfortable doing and i think in the end that's what he'll do we mentioned timing a couple minutes ago and i just want to end on the timing issue here. It's been what? In 2022, Donald Trump has been a part of our political lives in this case for about seven years. And I feel like every three months, there is a new article of faith among the left that we are near hours away from the indictment of Donald Trump and the removal of his specter from the American political scene. They've been wrong every time. The left

was wrong a thousand times up to now. For those who believe your analysis, when? Make a prediction even if it's loosely held. Around what time do you think we would get this indictment? Right. Well, so let me just say one thing about your, where you just described about the left.

I do think that there is this critique that's very fair where the left has held out this hope that legal processes could succeed, where democratic processes have failed. And I think that that's bad thinking on the left's part. I mean, the idea that there's- Well, democratic processes succeeded, I mean, in 2020. Right, right, right, right, right, right.

But there was like, I mean, the great hope of the Robert Mueller investigation, right, and that, and even here, I feel like there's this sense among a lot of liberals that Donald Trump possesses some sort of mystical powers. he's never going to disappear, you know, until he's shackled. And that's bad thinking. You know, it's like he should only be, he should only be indicted if there is a strong case that almost can't lose in the courts to indict him with. But on the question of timing, all right, you're, you're pinning me down.

But I've set myself up for this, like with the piece that I wrote. So I can't wheeze a lot of your question. My guess would be that it would happen sometime in late spring of next year. I mean, I don't think that Merrick Garland is thinking about the turn of administrations and the fate of his case. I think he's the clock, the timeline that I imposed on Merrick Arland is not the timeline that he's going to use to make his own decision. But I would think that if by late spring next year, you don't have a. case to bring against Donald Trump on Mar-a-Lago documents. You're never going to have a case to bring. There's nothing that you can do that would make, there's no, you couldn't wait any longer

than that to let the case ripen any more. This is so straightforward. Either you do it by then or you don't do it. All right. I'm setting my Google calendar, end of Q2, 2023. If you're wrong, I'll have you back in the podcast in June of next year and we'll light our Robert Mueller vote of candles and saw the Donald Trump's ability to wriggle out

of yet another one. Yeah, I'll meet at Coppil then. Yeah, Frank, thank you so much.

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