Pod Save America - BONUS: The Jan. 6 Indictment Drops

Episode Date: August 2, 2023

The January 6 grand jury hands up its indictment of Donald Trump, detailing how he and six co-conspirators knowingly peddled lies in an effort to obstruct the most important function of our democracy���and deprive you of your right to have your vote counted. Jon, Jon, and Tommy react to the indictment's most damning evidence and look at where the investigation could go next. For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

Welcome to Pod Save America. I'm Jon Favreau. I'm unindicted co-conspirator Jon Lovett. There it is. I'm Tommy Vitor. We have a bonus episode for you because Donald Trump has been indicted yet again. And this is the big one. He has been charged with four counts of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding,

and conspiracy against rights this is all related to his plot to overturn the 2020 election that began shortly after the election and went right through to january 6th when there was an attack on the capitol um there were six unindicted co-conspirators uh this indictment from Jack Smith. They have been identified by various reporters as co-conspirator number one, Rudy Giuliani. Number two is John Eastman. Number three is Sidney Powell. Number four is Jeff Clark. He was the Department of Justice official that Donald Trump made acting attorney general after Barr left.

You've last seen him being outside of his home while a search warrant was being conducted and he was in his boxers. Correct. Number five is Kenneth Cheesebro. Great name. Great name. He's bringing that character back from the January 6th hearings. And then unindicted co-conspirator number six is an advisor to Trump that has not been identified yet. It's a mystery.

Mystery. Some people think maybe it's Bannon. Some people think maybe it's Bannon. Some people think maybe it's Boris Epstein. I've seen some Ginny Thomas rumors. I doubt that one, but we'll see. That's too good to be true. I know, too good to be true. I can't help but picture the Hamburglar.

That's who I picture on the list of faces. It works. So the judge that Trump will appear before on this Thursday at 4 p.m. Eastern is Judge Tanya Chukin. She is an Obama appointee. She is one of the toughest sentencers of the January 6th rioters. She has previously rebuked Trump in a case where she decided that his records needed to be turned over. She delivered the line, presidents are not kings and the plaintiff is not president. So lucky draw for him. And after the grand jury handed back the indictment,

Jack Smith, special counsel Jack Smith, gave a brief statement, as is his usual, what he usually does, just a man of few words. Here's a clip from his brief statement today. what he usually does, just a man of few words. Here's a clip from his brief statement today. The attack on our nation's capital on January 6th, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation's process of collecting, counting, and certifying the results of the presidential election. Since the attack on our Capitol, the Department of Justice has remained committed to ensuring accountability for those criminally responsible for what happened that day.

This case is brought consistent with that commitment, and our investigation of other individuals continues. All right. So we have a 45-page indictment that we have all combed through. Got our highlighters here. You guys have some initial reactions to this and want to just dive into some of the highlights or lowlights, if you will? Yeah, I mean, it's worth just noting on balance, we knew a lot of this thanks to the January 6 hearings. There's not a ton of new sort of explosive facts. Well, there's a few of them, and we'll get to those. But the thrust of this, we already knew. The fact that he was charged for

them is the biggest, newest item. Yeah, I think there's a lot of detail. newest item? Yeah, I think there's a lot of detail. There's a lot more detail than we've had before about the machinations inside of the conspiracy between Trump and these lawyers and these campaign officials and a level of detail and evidence that we haven't seen before. There's conversations, there's texts, there's emails, there's contemporaneous notes from Mike Pence. Lots of Mike Pence. Lots of Mike Pence notes in this. And, you know, this was, I think, the biggest and most important indictment. It was also the one, I think, that we didn't, that felt like, you know, the documents case, it's simple.

It's easy to understand, right? He stole these documents. He didn't give them back. He obstructed justice to keep them. The question I think around this indictment was always going to be like, how do you spell out a case that isn't about, you know, stealing something and keeping it in your house? It's about fundamental American principles. It's about like the safety and security of our democracy. It's about whether you uphold an election.

And I'll say it before, I've said it before, I'll say it again. Jack Smith, the biggest scab in this writer's strike, this guy, this guy knows how to tell a story. It is a compelling document. I mean, it's interesting. It was interesting to me how many times Jack Smith feels the need in this indictment to prove that Donald Trump knew that he had lost the election, that he knew he was lying. And even at the beginning, as he sort of lays out in the opening of the indictment, he says the defendant had a right, like every American, to speak publicly about the election and even to claim falsely that there had been fraud and that he had won. His efforts to change the outcome in any state through recounts, audits, or legal challenges

were uniformly unsuccessful. But then he also pursued unlawful means of discounting legitimate votes and subverting the election results. And then he lays out the three criminal conspiracies. So he, you know, and we should know the conspiracy against rights probably sounds a little vague. It's conspiracy against the right to vote and to have one's vote counted. So like Lovey was saying, like a bedrock American principle of our democracy. one's vote counted. So like Lovey was saying, like a bad rock American principle of our democracy. Yeah. And you've, you know, there was been reporting about this ever since this statute was mentioned in the target letter a week or so ago that, uh, this was a statute that was used

to prosecute the KKK. And so it was the civil rights, civil rights in this case, in the sense that we all have the right to vote and to have our vote counted. And so that's, that's the connection there. Um, but it was interesting to me just how much, uh, this case rests upon proving that Donald Trump knew he was lying and knew that he had lost the election and still having known he had lost the election, tried to obstruct the count in Congress, tried to overturn the election, tried to fraudulently, uh, claim things and force others in states to fraudulently send fake electors. Yeah, there's two runs of there's two runs of proof points. One of all the different people that told Trump that the claims were false. There's also a run of Donald Trump specifically using basically verbatim claims of fraud that he

had been specifically been instructed weren't true. And yes, this is, I think, in this document, it is Jack Smith and the Department of Justice saying he knew these claims were false. But you also don't need, nobody is going to be able to hear, even if Donald Trump continues to claim, well, that's what these people told me. Other people told me that these were legitimate claims. I was just going based on conflicting information. I just wanted to get to the bottom of it. It lays it out in a way that just no reasonable person could look at this and believe he was telling the truth. There's just no way. Even if he keeps claiming it, he doesn't need to admit it. He can keep claiming whatever he wants. The evidence is there.

Yeah. So the people who told him in sort of formal briefings and settings that there was no mass election fraud include Mike Pence, top DOJ leaders, the director of national intelligence, the head of the Department of Homeland Security, senior White House attorneys that were selected by Trump to be in those positions. And then there's an interesting anecdote where, you know, he knows they're right, because there is a National Security Council meeting on January 3rd. Something happened overseas that they're briefing him on. And the chairman of the Joint Chiefs says to Trump, let's not take action on whatever this thing is, because the inauguration is 17 days away. And Trump agrees. And he says, yeah, you're right. It's too late

for us. We're going to give that one to the next guy. So he's witting of the fact that he is lost. I think the other this is so there's a couple new parts of the indictment tommy's right that most of it thanks to the january 6th committee we already know about um the new parts in the indictment are one is uh the fact that mike pence kept a kept a journal dear diary um and they have these conversations between trump and pence um and at one point pence says uh to trump point blank there is on page 33 for those following at home uh pence says pence says there is no constitutional basis for him to overturn the election i love this and in response trump says you're too honest mike you're too honest that that is and you know i just noticed before we came in here on twitter like the ap stories lead with that line because that is if that's

not evidence that trump knew he was full of shit and knew he hadn't won the election and was still telling the vice president to do something illegal i mean i don't know what is one of my one of my favorite moments in the in the document is on december 25th when the vice president to do something illegal. I mean, I don't know what it is. One of my favorite moments in the document is on December 25th, when the vice president called the defendant to wish him a Merry Christmas, the defendant quickly turned the conversation to January 6th and has requested the vice president reject electoral votes that day. The vice president pushed back, telling the defendant, as the vice president had already had in previous conversations, you know I don't think I have the authority to change the outcome. He's just stewing on Christmas.

Pence is calling him, calling the boss to wish him a Merry Christmas. It's incredible. Have you heard the good news? And then he just gets fucking broadsided. It's Christmas. It was also readily apparent reading this how comfortable a lot of senior Trump aides were with the prospect of violence. Deputy White House counsel tells Jeff Clark that there hadn't been determined fraud that would change the outcome,

but that if Trump stayed in office anyway, there would, quote, be riots in every major city in the United States, to which Jeff Clark responded, well, that's why there's an Interrection Act. So they're ready to beat the shit out of us if we all protest. The plan was to stage a coup and then use the U.S. military to put down any protest by force. That was the plan. And then another advisor told John Eastman, you're going to cause riots in the streets. And Eastman responded that there had previously been points in the nation's history where violence was necessary to protect the republic. So this brings up because we read this and we were all like, you know, Jeff Clark should be in jail.

These people should all be in jail. Right. They were not indicted. And I think the biggest surprise and what people are talking about right now is like, what's going on with the unindicted co-conspirators? There are we don't know is the short answer, but there are a few theories. One theory is that Jack Smith is laying this out there for them to try to get them to cooperate because if those unindicted co-conspirators can then testify, oh yeah, Trump knew he didn't win this election, then that's more powerful evidence. The other theory is they will be indicted at some point, and that perhaps Jack Smith just wanted to bring this now because he

wanted to get things going so that he can get a trial before the election, because we know that if he doesn't get a trial before the election and Trump wins, the whole thing will go away. It also could be a combination that he wants to turn some of them, use some of them. And I also think that the other important point here is naming. So four of the six unindicted co-conspirators are lawyers. Jeffrey Clark was a Justice Department official. So naming these lawyers as co-conspirators, even if they're unindicted, really hurts Trump's advice of counsel defense, which they have previewed that that's going to be their defense. Oh, I was just doing what my lawyers told me.

Well, your lawyers are co-conspirators who committed a bunch of crimes along with you. Yeah, they're all referred to as attorneys. And you just feel in this indictment, the dripping fury and disdain the Department of Justice has for Eastman, for Clark, for Rudy Giuliani, for Powell. One question I think we've talked about at length is, you know, how sophisticated was this operation? You know, how bumbling was it? How much was this just people trying things? How much of it was a concerted effort? And there's one thread that runs through this whole indictment that I think captures the way it was both. So early on in the indictment, the indictment makes the point that

some fraudulent electors. So there's basically, you know, there's three parts to this scheme. The first part is trying to get the legitimate elections thrown out and have Republican officials put in fake electors. When that fails, it's to have Pence, in some way, get these false electors to throw the election in results. And when that fails, you go to your insurrection. And early on, when they're starting to talk to potential fraudulent electors in the state, they're clearly leaving the conspiracy, the scam evolves. At first, it is a scam to just have backup electors in place

in case we need them. Now as the certification is getting closer, when the defendant's electors express concern about the signing certificates representing themselves as legitimate electors, co-conspirator one, that's Rudy, falsely assured them that their certificates would only be used if the defendant succeeded in litigation. Co-conspirator 6, the person we still don't know, circulated a proposed conditional language to that effect. So basically, some of these people that were about to be false electors said, hold on a second, you told me that I was doing this just in case, and none of this language says just in case, you're telling me I'm a real elector. And so language was floated to change it so that it could sound more conditional.

But a campaign official cautioned not to offer the conditional language to other states because the other states are signing what he prepared. If it gets out, we change the language for PA, it could snowball. So like in the middle of all this, they are well aware that they are coming up with a plan to overturn the election by using false electors. And when some of these electors balked at it and refused to sign, they were discussing whether or not they should do conditional language anyway. And it said, we don't need to. We've got enough people on the hook in all these other states to go along with this plan. They're just in real time. Very well. They're aware of what they're doing. And they're aware of how the plan evolved from just having a backup to trying to overturn the election and you see that happen they're very dumb about putting in writing uh their knowledge of the fact

that they're lying yeah john eastman emails the vice president's council remember this is a good one the vice president's not going along with all this his staff is pissed about it he says i implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations blah blah blah one more violation of the and adjourn for 10 days to allow the legislatures to finish their investigations, blah, blah, blah, blah. One more violation of the Electoral Count Act of 1887. You say emailing him, requesting a minor violation of the law. Also, John Eastman wrote on August, I'm sorry, October 11th, that neither the Constitution nor the Electoral Count Act provided the vice president discretion in the counting of electoral votes or permitted him to make the determination on his own. So right before

he launched this scheme to get Pence to overturn the election, he had written that Pence didn't have the authority. He also, he acknowledged to the vice president's counsel, the same person that he sent that email to, that he hoped to prevent judicial review of this because he understood that what they were doing would be, quote, unanimously rejected by the Supreme Court. That's a lot more faith in the Supreme Court than I have for the unanimous ruling. I do think they would have blocked it, but I don't think we were talking about seven. I think it's almost seven, too. But I will say, too, that that John Eastman email, Tommy, which said, I implore you to consider one more relatively minor violation of the law, came at 1144 p.m. on January 6th. This was at night. There was two other new parts of this indictment that did not come up in the January 6th hearing that are new.

One is we learned that Trump called two senators at 6 p.m. on January 6th as the riots in some places were still going on to ask them to block certification. We know that Rudy was trying to call people and like accidentally mike lee or whatever um and then pat cipollone he he's back pat cipollone remember him white house council um at that night after as january 6th was just as the as the capital had you know been cleared out and everything was going on the white house council asked implored trump to please call off the objections that from the senators and Trump refused even that. There's a moment during the where the campaign officials are saying to Rudy, here's the thing, the way this is morphed. It's a crazy play. So I don't know who wants to put their name on it. And that city advisor called it and this is a quote certifying illegal votes.

that city advisor called it, and this is a quote, certifying illegal votes. Yeah. Like they. And back to, you know, what Trump knew and everything. I do think we did, we heard this during the, this came out during the January 6th committee hearings, but they have Trump saying that Sidney Powell's Dominion voting machine claims were quote crazy. Yeah. And also, you know, who's number two again? John Eastman is calling officials in Arizona and being told by the Arizona House Speaker

that the state had investigated these allegations and uncovered no evidence of substantial fraud in the state. Eastman says, look, I don't know enough about facts on the ground, but, you know, decertify and let the courts sort it out. You know, he's knowingly advancing these lies. Which is similar to the line that we've all heard from Trump that I still think is one of the most damning lines of all, which is just say the election to Jeffrey Clark, to the to the Justice Department. Just say the election was corrupt and leave the rest to me and the Republican Congress. What what really comes through and some of it we've known, I think some of it we're getting more detail,

is the people that are saying no to this, and I think the people that are clearly being interviewed as part of this, these are Trump voters. These are Trump supporters and Republicans. You have in Arizona, in Georgia, in Michigan, and you have these extraordinary comments from them basically saying, I voted for Trump.

I wanted him to win. I'm not subverting my oath. There's nothing in our state constitution or in the law that gives me the power to do this. And over and over again, there's, again, some of this we've known, but now we're getting in more detail. The moment when Trump tries to make Clark acting attorney general, and you have the acting attorney general and the acting deputy attorney general saying no. And if you do this, we'll resign. Your White House counsel's office will resign like it'll be a scandal. You see over and over again that this scheme got a lot further than we even understood at the time. It was more sophisticated than we understood it at the time. And the reason it didn't succeed. And by the way, of course,

it was more and less sophisticated than we thought. Yes, it was more and less sophisticated than we thought. But I do think it was more concerted than we realized. And it was more coordinated than we realized. That's what this indictment makes clear. And the reason it didn't succeed is not for lack of effort. It didn't succeed because at the time there were just enough people with just enough scruples left to stand in this group of conspiracists way. It does highlight the amount of pressure that was put on Mike Pence. Because, you know,

I think sometimes we assume Trump has kind of like a public facing demeanor and message where he lies and is full of shit. You kind of assume that he's in on the joke and tells the truth behind the scenes. No, he was like in the vice president's face as late as December 29th saying that the justice department was finding major fraud and infractions. Like Pence knew that was a lie. Everyone had been briefed on the fact that that was a lie. And by the way, breaking news, Mike Pence just put out a statement about the indictment saying today's indictment serves as an important reminder. Anyone who puts himself over the constitution should never be president of the United States. So yeah, it it's interesting that he got into it.

Yeah, it was his line when he said that line when he announced for office. But I'm glad that he did not go to the sort of weaselly, I don't know if we should criminalize. You know, I think. Here it's in context of this indictment. Right. Well, I know. I saw that statement. I think it's in context of this indictment. Right. Well, I know. I saw that statement. But I think what he decided was, it's not on me to judge the legality of what the jury is going to do. The guy shouldn't be president again. And that's enough, which, you know, is fine.

And I think Hutchinson and Will Hurd, Asa Hutchinson and Christie have come out with statements condemning him as well. There's one other meeting where Trump and Eastman and Pence and Pence's chief of staff and counsel are all meeting. And basically, there was this sort of other proposal that was being floated that Pence has the ability to send the fake electors back to the states. And there's a moment where Pence is like, who says I can do that? And Eastman says, well, it's never been tried before, basically. And Pence says to Trump, did you hear that? Even your own counsel is not saying I have the authority. And Trump responded, that's okay.

I prefer the other suggestion. The other suggestion, yeah. Where he just overturns the election and certifies Trump. So, pretty damning. Pretty serious. You guys have any questions you're looking forward to being answered in the coming uh coming days on this one i'm kind of interested in the timing and and whether they think that they can actually get a uh a full trial in before the election on this one yeah you know i'm curious

about like look we're all learning these terms like speaking indictment and how much uh prosecutors decide to put or not put in these indictments i'm curious to see how much evidence was withheld here um we don't really know that i don't know how we could know that but yeah and and and you know we talked about what's going on with the unindicted co-conspirators jack smith did have one line in his uh very brief statement where he said investigations of various individuals are ongoing so um you know we could expect we could see more indictments on this this this is this is this indictment definitely doesn't read though that like rudy and eastman and clark were just dragged along they're written like people

that at least jack smith would love to throw in fucking prison oh i mean i think that it's more it's it's more damning for them than even Trump, the way the indictment reads, for some of the stuff that Jeffrey Clark said about the insurrection. I mean, all the stuff that we read. I think Eastman and Clark seemed like very criminal, what they did. Yeah, that's why I was sort of interested in the part where you see the evolution of the plan from just having backup electors to it becoming a crazy plan to overturn the election. Because that is five, mr cheese bro and uh that he he gets the least uh he gets sort of the least damning um attention throughout this as the six and you know you have to you have to wonder like man rudy is dead to rights in this thing clark is dead to rights in this thing eastman's dead to rights

in this thing like i wonder i wonder who's who they're actually going after to get to testify. Yeah. I mean, you know, to your point, like Rudy, look, there was like post 9-11, hey, geography, Rudy, wherever America's mayor, that whole bullshit. But like that image of Rudy, I think is long gone. He's been a clown for a long time. So I wasn't surprised to read his comments in this. John Eastman is someone who's considered like a pretty well-respected scholar, constitutional scholar, but before this insanity at the end here in this coup effort that he clearly was behind in knowingly, you know, putting forward lies and asking people to break the law. Might even call him a mastermind of this of this effort. I mean, it was really like you're right. Rudy Rudy just goes off the cuff. But like Eastman here is he's thought it out.'s thought it out he knows it's illegal and he just he's been pushing the whole time um just that we don't need to just get into the politics too much here but like this is one and I felt like this during the January 6th committee that I don't really care what the politics are like when I

read this indictment I'm like if Donald Trump again, these unindicted co-conspirators are coming back to the White House and next time, they're not going to fuck it up. Well, no, they're going to have those medals of freedom hanging around their necks. I mean, it's like,

this is, you know what? I don't know what other case you need to make to voters than, hey, all this shit that happened, them threatening that

if Donald Trump doesn't get to stay in power for as long as he likes, they're going to use the Insurrection Act to get the military to put down any protests. That's going to be our future if you elect this guy as president again. Well, not if he wins. Well, then what happens after that for those four years? I'll be old. What happens when we're debating the constitutional amendment to let Donald Trump serve as long as he wants and he tells the senators and House members, that's okay. You don't have to change it with a full majority. It's okay. Don't worry about it.

There's also one part in this where Tommy made this point before it recorded that Sidney Powell's texts are as bonkers as her personality. They're just half caps, half lowercase. One sentence in the same sentence. There's just a run of all caps text followed by normal. But John, on the political question, this indictment and all the news reports around it could certainly change the context. There was some polling, there's a YouGov poll back in January where you had pretty strong majorities of American voters saying Trump bore responsibility for January 6th. When you asked about whether they approved of Congress referring Trump for a criminal indictment, it got a lot more partisan. It was 45 to 37

Americans approved of referring him to DOJ for a criminal indictment. So we'll see if that more partisan split sticks once now that he's actually indicted. The, uh, yeah, the one, the one set of numbers that stuck out to me, I think I was reading last night is, uh, you know, you, like you said, it breaks down along partisan lines. And the question is what independents do, you know, how to independency this. And mostly they're sort of split on, you know, whether it was a crime, all that kind of stuff. But if you ask the question, if Donald Trump is convicted of a crime, should he be able to serve as president? It's like, like 75% of independents don't think he should. And, and the majority of all voters

don't think he should like a healthy majority, pretty big majority. So I do think that the only point here is as this goes on, the politics now and the polls we're looking at now are all sort of frozen in time and they're backward looking. We are about to head into a calendar season of court dates and extra indictments. We had a superseding one we didn't even expect in the Mar-a-Lago case case and this is going to go on and on and on and be in the news over and over and over again and right like maybe it doesn't make a huge difference in an electorate that is

very polarized it's possible but these elections are decided on the margins and is it you know do you want to put the guy back in the white house who did all this or do you want to give joe biden four more years that's it that's the choice yeah Yeah. Also, the point that Jackson makes the point when he gave the statement that he wants a speedy trial. That's a that's a message also to the judge. This judge, as you pointed out, is not Eileen Cannon. And she's the she's the complete opposite. Like she's bizarro Eileen Cannon. You know, is this going to affect Trump's poll numbers? He may die in prison because of this. Poll numbers are the least of his problems. He is going to be in court day

after day after day, covered exclusively on his crimes. That's why he's running so hard for president. Some things don't end up being on the margins. We'll see. But man, you read this, you're like, I finally can see it now. I see the end. If you think to yourself, maybe he's a little more disciplined in his run for president this time you're like, I finally can see it now. I see the end.

If you think to yourself, maybe he's a little more disciplined in his run for president this time. It's so he can stay out of jail. Yeah. He knows there's a lot more at stake right now. He's got a lot of legal bills to pay. It's going to, it's probably hurting. Yeah. All right.

Well, that's our bonus episode. We'll come back with another bonus if there's more indictments. I think, let's see, we had 74 felony counts yesterday on the pod we talked about. So now we're up to 78. 78 felony counts. I was reading, I was reading this indictment. I think, let's see, we had 74 felony counts yesterday on the pod we talked about, so now we're up to 78. 78 felony counts. I was reading this indictment. Is he 70? How old is he? He's 78. One per year. Yeah, he's got a felony count for every year.

Donald Trump, 78 years old, 78 felony counts. I was reading this indictment and all of a sudden I was like, wait, this is confusing. And I realized, oh, I accidentally turned into the other indictment. There was too many indictments on my desk. You gotta file those things. You can't just leave your indictments out. Alright, you still printed on the page. There was too many indictments on my desk. Too many indictments. You've got to file those things. You need a new highlighter.

You can't just leave your indictments out. All right. We'll talk to you on Thursday, everyone. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our producers are Andy Gardner-Bernstein and Olivia Martinez. It's mixed and edited by Andrew Chadwick. Jordan Cantor is our sound engineer, with audio support from Kyle Seglin and

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