Pod Save America - Trump Arraignment Syndrome

Episode Date: June 15, 2023

Donald Trump turns his federal indictment into a campaign event/fundraiser/birthday party. Chris Christie cannon balls into the CNN townhall waters. Strict Scrutiny host Leah Litman talks about SCOTUS ruling on the Indian Child Welfare Act and what comes next in Trump's legal process. And finally, highlights from California Governor Gavin Newsom taking on Sean Hannity on Fox News. 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 back to Pod Save America. I'm Tommy Vitor. I'm Dan Pfeiffer. Jon Favreau is feeling a little under the weather today, Dan. So we are about to record what many people are calling the single best Thursday pod in history. You know that, right? Roger Ebert called this episode ingeniously conceived and seamlessly executed. No, that was actually a Wes Anderson movie review, but we'll try to do our best here without our fearless leader friend, Jon. and movie review, but we'll try to do our best here without our fearless leader friend, John. So on today's show, we got Donald Trump turning his federal indictment into a campaign event slash fundraiser slash birthday party. Someone does. He turned 77 on Wednesday, Dan. I think

that raises serious questions about whether Trump is too old to do the job. Don't you agree? What else we got? We got Chris Christie cannonballing into the CNN town hall waters. Strict Scrutinies, Leah Littman and Dan talk about what comes next in the legal process. So there's an actual smart person in the B block. We have to get one in every three to four weeks. So usually that person is a host of strict scrutiny. Yeah, listen, thank God for them. And then Dan and I are going to talk about California Governor Gavin Newsom's interview with Sean Hannity on Fox News. Was that last night, last week? When does anything happen?

It was very recent. I watched it on YouTube. Monday, maybe? Sunday? I don't know. Yeah. Anyway, it was good. I think they broke it into multiple parts, too.

Sean is just milking that thing for all he can. But Dan, because we all love California politics, if you cannot get enough of them, San Francisco mayor London Breed is going to be a special guest at a Love It or Leave It live show at the Palace of Fine Arts in San Francisco on June 22nd. Go to crooked.com slash events for more info on how to get tickets. And there is still time to support our fuck bands, leave queer kids alone, funds that go to help support organizations on the ground in states that are passing bigoted laws attacking trans adults and trans youth. You can choose to donate to a nonprofit fund. You can donate to the political action organizations. Both are great. Both are greatly appreciated. So go to vote, save america.com slash fuck bands to learn more. We already had to double our goal, Dan, because we were just raising so much cash.

So thank you to everyone who did. All right. News time. So Trump was arrested in Miami. He pleaded not guilty to 37 felony counts of violating the Espionage Act and obstruction of justice. He was fingerprinted. There were no photographs, bail.

There's no gag order or travel restrictions that we know of, though the judge did say Trump is not allowed to commit any more crimes before the trial. That seems unfair to me, Dan. It's kind of like in his nature. The crowd of Trump fans and protesters outside the courthouse was smaller than expected, but Trump did make an unannounced campaign stop at a famous Cuban restaurant before flying to Bedminster, where he held a campaign style rally. Here's a clip. Joe Biden broke the law and so far has not gotten indicted. I did everything right and they indicted me. So I did. I love it. Trump doesn't just give like a campaign style speech about the indictment and do the fundraiser complete with teleprompter and crowd and all the trappings. They also scheduled what people in

politics call an OTR at a famous Cuban restaurant. That means you don't advise the president advance, you just sort of show up. So Secret Service doesn't have to lock down the place. Were you surprised that the Trump team turned this into just another day on the campaign trail? I'm not surprised, but I am impressed. Look, going on a campaign stop immediately after you were charged with 37 felony counts is definitely a thumb in the eye of the legal system. When those 37 felony counts are for mishandling classified information, it's probably a thumb in the eye of the military and our intelligence professionals and all of that. But it probably is smart politics. Trump is, he wants to seem unbothered, uncowled, triumphant in the face of his incredibly precarious legal situation. He did it. He did it after the indictment details came out over the weekend. He went to a waffle house in Georgia and bought waffles for everyone. Now he's at a Cuban restaurant.

Cuban restaurant. And I do think that in the, yes, Trump is a self-destructive buffoon, which is why he's in this mess. But this version of his campaign, unlike 2016 and unlike 2020 actually has some strategies surrounding the cell phones from Trump that are, is pretty impressive. Like there's an actual plan here and he is working aggressively to maximize his political position despite all possibly being sent to jail for decades. Um, and so I think it's impressive. And I think I tell any Democrat that I talked to about this is that his campaign this time around has a plan and this is part of that plan. Yeah. We, I should say we can't confirm reports that he wrapped up half of his sandwich to go in some nuclear secrets, but there's some talk of that online. Yeah. Like legally speaking, I mean, maybe this goes without saying, but attacking the guy,

prosecuting you, attacking his wife, constantly commenting on a case that hasn't been tried yet is probably a bad idea, but you're right. I mean, Trump probably rightly views everything in life as a political problem first and foremost. And I don't know, maybe he wants to raise money. He wants to keep his supporters on sides. He wants to keep the Republicans on sides. And he probably thinks all I need to do is convince one juror that I'm innocent, future juror, I should say, and that this is unfair. So why not go big and influence public opinion? And to your point about the plan, the restaurant you went to, Versailles, is a famous spot for politicians to visit. He's clearly appealing to a more conservative

Cuban community in Miami. Stone crab season is over. It's worth mentioning that, so we didn't go to Joe's. But question for you, Dan. He may have a little competition in the Miami Cuban community. The mayor of Miami, Francis Suarez, jumped into the race today. He once suggested that the US should consider airstrikes on Cuba. He might be most famous for creating a cryptocurrency called Miami coin, which is only down 96% from its peak so far. So some room to grow there. He may also be under indictment. He also said publicly he didn't vote for Trump or for DeSantis. So, uh, competitor, what do you think? So when you say it's down 96%, it's, that means it's outperforming most cryptocurrencies. Is that

correct? Well, yeah. Listen, all I see is a potential. That's what I see here. Look, I think it's, I think it fits perfect with his campaign slogan of buy the dip. Buy the dip. Francis Suarez, buy the dip. So, okay. Let's talk about Trump's speech. I watched it this morning on YouTube. Thank you again. What speed did you watch it? I was going to thank the YouTube engineers for allowing 2X because I needed it. It was a weird mix of sort of political rally. He clearly likes speaking at Bedminster because it's got those white columns that look sort of like White House adjacent, you know? Like the 2008 Obama convention speech?

Oh, yeah. For those who aren't Obama-pilled like we are, we had columns. They looked Greek. Everyone attacked us for a while at our outdoor event in Denver. Anyway, it was a rally, but he was also trying to fire up the crowd by explaining kind of how the Presidential records act governs document retention, which seems to confuse people for big stretches. He gave my old boss, John Edwards, a shout out. There was a lot of whataboutism when it comes to Biden's classified documents and Hillary's server. CNN and MSNBC did not take the speech live. What did you make of this thing?

It was so long and so boring. i felt i actually felt bad for the people at bedminster who were i think trapped in the room and could not get out and had to listen to it it was very reminiscent of his campaign announcement speech that he did down at mar-a-lago i think these speeches are basically uh sort of catharsis and therapy for Trump, where he just like spits out everything he's going to say. And then there's one or two, like 30 second soundbites that he has been told by his campaign staff that he has to say, and you can see him just like switch and start reading, right? He goes, I mean, he's the least subtle teleprompter reader in history where he's like this way and now this way and then back

this way but in it and you know i think he there's no he doesn't pay a price for any of these speeches no one sees them cnn didn't not that anyone would have seen him if cnn knows to be seen as silly air of them or certainly no one who's going to make up their mind based on the speeches so he just goes out says his crazy things and then hopefully in the eyes of his campaigns have the one or two lines that matter to them or the ones that get picked up by TV. Yeah, I felt bad for the crowd, too. I mean, to be fair, it's a collection of some of the worst people in America is my guess. Yeah.

Get Out 2 will be filmed at Bedminster at the Trump rally. One piece of good news, such as it is, there wasn't some, you know, massive crowd. There wasn't a violent protest. Does it make you feel better? Do we think the series of headlines about January 6th insurrectionists going to jail kind of helps keep the Proud Boys away? No, I think it's the fact that there's always another indictment to attend if you're busy for this one. So it's like- There's options. It's like a band going to a city too much. I can't make it to New York. I can't make it to

Miami, but I can probably make it to Fulton County in August for that one. Or I can make it to DC for the January 6th one. An indictment a day keeps the Proud Boys away. The Miami police chief said he was preparing for 5,000 to 50,000 people. About 500 to 2,000 showed up. I wonder if the Delta was K-pop fans on TikTok buying other tickets. That was just a one-time thing. Another esoteric reference, just a little more recent than the one I just made.

I mean, 2,000 people is not nothing to show up. No, it's not. It's not. Although there were some counter protesters, one of whom got arrested for running in front of his car, I think dressed up as like an old school burglar in like the stripes. Anyway, so as so often happens with Trump scandals, the first few days after he

drops a new banger the defenders kind of flail away with a number of let's just say creative uh responses and defenses here's sort of a a poo-poo platter of the bullshit that we all saw on tv over the last couple days i don't know is it a good picture to have boxes in a garage that opens up all the time a bathroom door locks if somebody who's been to mar-a-lago you just can't walk through mar-a-lago of your own accord because secret service is all over the place there are 33 bathrooms at mar-a-lago uh he really liked mementos uh his office in new york spilled with him uh and the letter from kim jong-un would uh would fit into that if he had cocaine in those boxes that were him. And the letter from Kim Jong-un would fit into that.

If he had cocaine in those boxes that were stacked up in the ballroom, then maybe if he's running a cocaine ring out of Mar-a-Lago, maybe they don't circle the wagon. Joe could send Hunter to check that out. Exactly. But he's not.

We're talking about a piece of paper. What's happened to the public's trust in institutions is, I think, far more significant than a bunch of documents being kept sloppily in a bathroom. We had a lady or a man that now claims to be a lady, you know, going topless at the White House two days ago at a Pride celebration thing. I mean, we can do whatever we want, can be as decadent as we want in our society and our culture.

We can break our politics. We can take our institution and weaponize them for political purposes on both sides. You think this ends here? The next Republican president is going to be under tremendous pressure to bring charges and indict Joe Biden, his family, his crackhead son, whoever. What a dickhead. That was Speaker Kevin McCarthy, Congressman Byron Donalds, Byron York, a pundit, Fox News' Jesse Waters, then Laura Ingraham from Fox, and then finally Senator Marco Rubio. Dan, why won't the MSM cover any of the bathrooms that did not have classified information next to the shitter? I think that the Byron Donalds explanation was really pitch perfect. Because how many bathrooms have you been in that lock from the outside? No, that was kevin mccarthy that was kevin mccarthy he kevin mccarthy thinks that the boxes got put in the

bathroom and then one of them stood up and either latched the door or pressed a little button on the handle and that made it all safe that was kevin mccarthy who said that at the top yeah byron donalds was the one what about the 33 uh bathrooms that weren full? I also think I'm surprised that 33 is, that seems like a small number of bathrooms for Mar-a-Lago for me. Yeah, it is a public club. Do people stay, like, I have to admit, I've tried to learn as little as possible at Mar-a-Lago. Is it like a hotel? Do people stay there?

I genuinely don't know. I think they probably have golf. They seem to have a pool from all the shots I see from above. They do a lot of events, sort of like a country club. YMCA cover band also there. Trump likes the DJ from his iPad we've learned recently from the sort of deck of the veranda. These are real fall of empire times happening right now. Yeah, truly.

But like, okay. So any of these arguments, you think they'll just abandon this? Like, does anyone going to keep defending the underlying conduct here? Or do you think they're all just going to go to the, you know, this treatment of Trump is unfair as compared to Biden and Hillary? I think they are going to continue to throw as much shit at the wall as possible because the goal is not really to persuade anyone. It's they sort of, there are sort of two target audiences for this group of yahoos who's we just heard. One is people who want to be

with trump are looking for any excuse to stick with them and defend them and they will take anything they will take the presidential records act bullshit they'll take the bathroom locks they'll take joe biden or what about just whatever it is just so you just give them a cheesecake factory's menu worth of options and then the other group are the swing, that swing vote is not the right word, but sort of the voters who end up deciding elections, the ones who engage, who are inherently skeptical of the media, cynical about politicians, and they do not engage deeply in the news. So they don't, they're not paying attention to the differences between the Espionage Act and the Presidential Records Act. They don't know how the special counsel is walled off from Merrick Garland and how the

justice department is walled off from the white house. And so they just throw a bunch of shit out there. And then these people will throw up their arms and say, I don't know, I don't care. And they'll disengage on this issue or from the election altogether. And so I think that's what's happening here. Yeah. I just bore everybody into not listening. Marco Rubio brought up breast for some reason. I don't know what's wrong with him. I've felt that way for years. But it's worth noting that about Trump's document retention, Rubio said, there's no allegation that there was harm done to the national security. There's no allegation that it was sold to a foreign power or that it was trafficked to someone else or that anybody got access to it. About Hillary Clinton's email server back in the day, he said, mishandling of classified

information was disgraceful and unbecoming of someone who aspires to the presidency. Actions were grossly negligent, damaged national security, and put lives at risk. So there you go. Wait, are you saying Marco Rubio is full of shit? I think I am, Dan. I think I'm saying he's inconsistent. But the difference so far, maybe, is that there are some Republicans, including some of Trump's 2024 opponents, who are finding a spine. Let's hear from a few. If this indictment is true, President Trump was incredibly reckless with our national security. More than that, I'm a military spouse.

My husband's about to deploy this weekend. This puts all of our military men and women in danger. I do have concerns about all the news about misuse of classified information. I happen to be on the Senate Intelligence Committee and I get classified briefings on a regular basis. And what they did was unacceptable. But I do think that even half is true, then he's toast. I mean, it's a pretty, it's a very detailed indictment. And it's very, very damning. And this idea of presenting Trump as a victim here,

a victim of a witch hunt is ridiculous. That was Dickie Haley, Senator John Cornyn, and Ralphie from A Christmas Story, now all growed up Attorney General Bill Barr. Din, am I wrong to feel a little bit hopeful about the fact that there's a small but growing – I wouldn't say it's a chorus yet. It's more of an a cappella group worth of Republicans who aren't necessarily like never-Trumpers who are willing to criticize his conduct in this case. In the past, nobody goes first, right? They don't want to go first, and there's sort of a collective action problem. I think that this is going to play out slightly differently in the 2024 primary than the 2016

primary. I think everyone to some degree understands that to be the nominee, you're going to have to beat Trump. Now, what a lot of these people are doing, Nikki Haley, most notably are trying to calculate their chances of beating Trump versus their chance of being Trump's VP. And so you're going to see different approaches here. But I think people are beginning to make a case. The problem is it's a mealy mouth version of the case. And too often they are already echoing Trump's primary talking points by essentially saying, yes, Joe Biden has weaponized the government to unfairly attack Donald Trump. But if Donald Trump did these things, that's bad. And that's not a strong enough case. You can't reinforce Trump's message narrative and then make

the criticism. You just have to make the criticism. You have to make it strongly. Yeah, that's fair. Although, you know, I'm trying to find a little hope here. Like sometimes politicians float arguments like this. They test the waters. They gauge the reaction before kind of walking it back or going all in. Maybe that's what's happening here. I have to assume that everyone in this case is pretty clear eyed that the MAGA base is going to hate even the lightest criticism.

Mike Pence is calling the allegations very serious. I think Tim Scott said it's a serious case. Everyone is leaning, I think, rightly, frankly, on innocent until proven guilty, because we do live in a nation of laws here. But I don't know. It does seem like they're dipping their toes in. But I can't imagine them walking this back. this is fall from grace probably as exhibit A of this, that you're going to have to separate Trump from his base if you want to win. There's not a lane big enough for something else, so you're going to have to go at it. And that could be very politically painful in the short term, in the long run, but it's your only chance. Yeah. So the one 2024 candidate who is truly flailing away at Trump is Chris Christie. He did a CNN town hall the other night. Let's listen to a clip. is Chris Christie.

He did a CNN town hall the other night. Let's listen to a clip. Do you believe President Biden has weaponized the Department of Justice against Donald Trump with these indictments? You know, look, I don't think so. Everyone's blaming the prosecutors. He did it. It's his conduct.

And let me ask you a question. What exactly was he doing with them? Did someone remind him he's not the president anymore? This is vanity run amok, Anderson. Run amok. Ego run amok. And he is now going to put this country through this when we didn't have to go through it. He wants to continue to pretend he's president.

He wants the trappings of the presidency around him. And I think one of those trappings is these documents. I am convinced that if he goes back to the White House, that the next four years will all be about him just settling scores. I'm gonna take him on directly, and not because I don't like him. I'm gonna take him on directly because he's the leader.

Like, how do you, I just don't understand the other candidates who won't even mention his name. I watched that Joni Ernst roast and ride thing. It was like he was Voldemort from Harry Potter. Say his name. How do you beat someone if you won't talk about them? How do you beat them if you won't distinguish yourself from them?

He hasn't won a damn thing since 2016. Don't allow the showmanship to obscure the facts. The facts are he lost. So Dan, I mean, the vanity run amok explanation is interesting. I'm not sure I find it to be like the most compelling argument. I love the criticism of Trump as a loser. What do you, what do you think of this message? I think that Chris Christie's campaign is a Lincoln project ad come to life in the sense that you like it. I like it. Our friends on Twitter love it.

But every piece of research will show that Republican voters who should be the target of it do not like it. And that is as much a messenger problem as it is a message problem. Chris Christie has a minus 54 approval rating in a recent poll among Republicans. He is a deeply, deeply unpopular individual. Minus 54. Oh my gosh. He is only slightly more popular than Mike Pence, who was nearly murdered by his own voters. So that gives you a sense of where he is.

There is a part of it that I think is useful and could – I think it's a useful thing. as a disqualifier for some more moderate, never Trump Republicans or Trump skeptical Republicans who may view Christie more, he may not be in that minus 54 cohort. So I think it's largely, I'm glad he's doing it. I just don't think it's necessarily going to work. Yeah, I'm glad he's doing it too. He is also like, he's a compelling speaker. He's brash. You're right. If you have a negative 54 approval rating, you're probably not the best messenger, but I have a thought experiment for you, Dan. It's not a fun one. As we've discussed, there's a polling threshold and a donor threshold that number that he needs to get invited to the debate. Would you give him $1 and encourage others to do so to get him on that stage? I'm calling this a Christie's choice. I don't think I would do it. And I don't think I would encourage other

people to do it. What? Fuck. I already did on pod. Save the world. Can we cut that and redo? I'm just kidding. Keep going. I mean, mean if other people this is one of those things like one buck if people want to give them one buck great they should do it when you spend it on your uh your avocado toast and your latte you liberal just give them a dollar get them on that stage like i'm recording this in boston right now i gotta hit a duncan um yeah i gotta go to duncan i look if people want to do it fine i i the debate will be more interesting for us at least if he is on stage so great and let's be honest who knows if trump will be on that stage at all he might refuse the debate yeah i mean so then what like there's be such a boring stupid debate maybe they'll kick the shit out of ron desantis but probably not maybe they'll all just kick the shit out of trump in

absentia which is gonna make them look even weaker so maybe they'll pick someone funny to kick the shit out of just like the back ramaswamy gets his ass handed to him for like two hours and then everybody wins. I don't know. We'll see. Okay. We're going to take a quick break. And when you come back, you'll hear Dan's conversation with legal expert and co-host

of Crooked Media's amazing legal analysis podcast, Strict Scrutiny. You'll hear from Leah Littman. So stick around for that. Joining us now to talk about the Trump indictment is our resident legal expert and the co-host of Crooked's fantastic legal podcast, Leah Littman. Leah, welcome back to the pod. Thanks for having me. I listened this morning to the emergency strict scrutiny episode that you and Kate Shaw did in response to the details of the indictment and the arraignment. I encourage everyone to listen to it. It is great, but I have some follow-up questions for you. So I'm so glad you're here. Let's do it.

Okay. Let's just start with the real basics here. Donald Trump has been arraigned. He's been given a set of release guidelines, things he can and can't do. What happens next? So the initial next steps are going to be a series of discovery processes, as well as pretrial motions. So discovery basically means that the government will be exchanging evidence with the defense counsel and defendant in order to kind of show them what they have. The prosecution also has an obligation under the Supreme Court's decision in Brady versus Maryland to turn over any evidence or material that might be exculpatory to the defense. So basically any evidence that's favorable to Trump and suggests he might not be guilty. There might not be any of

this, but like, who knows? And then aside from that, the defense will probably start to file motions seeking either access to certain documents if the prosecution isn't turning them over, or seeking to challenge various aspects of the prosecution's case, maybe saying it's legally insufficient, or, you know, other bases to basically prevent the trial from going forward. But that's basically what we're looking at next. How much does it complicate things that some of the evidence in this trial includes some of America's most highly classified documents? That's likely to complicate things considerably, particularly as part of the prosecution's obligations to turn

over, you know, evidence that they have, as well as negotiations between the prosecution and the defense to turn over other evidence as well. You know, as we noted during the emergency episode, it's not clear that Trump has yet secured a lawyer that has the requisite clearance to look at some of these materials. And so there might be some delay in finding, you know, a lawyer who could do such a thing or obtaining some permission from the government for one of the lawyers to access the information, but that is likely to lead to additional delays. There may also be squabbles over like what sort of procedures or restrictions the court can put on the defense's ability to look at the evidence or have it. And so that's likely to happen as well.

I would say I was more than a little disturbed to hear Kate on your episode say that she felt pretty confident that this case would get pushed past the 2024 election. Is that your feeling as well? It is, but, you know, that's partially because of the judge who is overseeing it. And it's also partially because, you know, there are going to be some legal issues that courts probably haven't confronted before because there hasn't been, you know, a prosecution of a former president who kept classified secret documents in bathrooms, you know, a prosecution of a former president who kept classified secret documents in bathrooms, you know, after the federal government was trying to take them back. So, you know, it's not like that judge can just point to, well, here's a case that said, you know, no, former presidents can't just keep classified secret documents like strewn about the bathroom

and wave their hands saying some things about the Presidential Records Act. And also because this judge has shown, Judge Aileen Cannon, that she is more than willing to kind of go out of her way to be indulgent, too much so of Trump's legal strategies and legal arguments. And so those are the two things that lead me to think this is probably not going to be settled before the 2024 election. Of course, there might be surprises. Sometimes that happens. But yeah, I kind of agreed with Kate's prediction. Is there an argument or a legal

process that Jack Smith can follow to try to expedite the trial here, given the very real one that the voters will, you know, should have a say here, but also that Trump, if reelected, could pardon himself? I mean, of course, you know, the special counsel, just based on the length of the indictment, the fact that it is a speaking indictment that laid out, you know, all of the evidence in very clear fashion, it seems like that office is really trying to make the process and this case as easy and as simple as possible. So of course, right, they can try to expeditiously and clearly, right, respond to whatever requests, you know, Trump's lawyers are going to make and say, no, right, that's not warranted, right, this is bananas. And like, here are all of the reasons why. And they can try to move the case along a

similar timeline as other cases in that particular jurisdiction, which again, is among the faster, you know, areas for handling cases in the United States. So yes, of course, they can, you know, respond to motions that Trump's counsel may file. They can make requests of the court and propose their own timelines. But at the end of the day, the schedule is going to be determined by the district judge overseeing this case who has very limited experience with criminal cases and certainly no experience with criminal cases that involve really novel facts and a host of legal issues that haven't been presented to courts before, and again, is pretty indulgent of Donald Trump thus far in related litigation. I mean, when you say limited experience in criminal trials, isn't it four trials that last a total of 14 days in her career? Yes, that is the limited experience I was referring to. Now, of course,

she hasn't been on the bench that long. She was kind of confirmed in the lame duck session in 2020. But yeah, she does not have a ton of criminal law experience. The ultimate decision of recusal starts with her, but Jack Smith could try to force it by appealing above her. Is that correct? And do you think he should do that? Or is he stuck between this terrible choice between trying to get a more experienced, potentially less biased judge, and further delaying this likely to be delayed case? Yes. So he could first ask Judge Cannon, and if she refuses, seek what's called a writ of mandamus from the Court of Appeals. And if that fails, ask the Supreme Court.

But in addition to the delay factors that you note, and if the special counsel wants this case to proceed quickly, then that would operate kind of intention with any recusal requests. with any recusal requests. I think, again, given Judge Cannon's willingness to bend the law to favor Donald Trump, the government is, and this is going to sound scary, kind of relying once again on the 11th Circuit, which is a very conservative court of appeals, and the U.S. Supreme Court, which is also supermajority justices appointed by Republican presidents, those are the two courts that they are relying on to basically police Judge Cannon's abuse of the law. And the government needs to be able to maintain credibility and not annoy those courts and those judges and justices in the event that Judge Cannon does something insane and they need to ask one of those courts to intervene. And it's that posture that makes it really difficult for lawyers in general and federal government lawyers in particular to sound the alarms about what is happening with our courts

because they need to maintain a posture under which they're not really pushing any of the federal court's buttons or annoying them too much. One time when you were on the show during a previous potential indictment of President Trump, I asked you to pretend to be his legal defense attorney. I am not going to do that again. I still feel bad about that to this day. We should all remember, particularly those of us who get everything we know about law from your podcast, that the indictment is essentially the government's best case, right? It does not include exculpatory evidence. It does not include what Trump's defenses could be. What do you – so there have to be some holes in this case, theoretically. Where do you think Trump's – if and when he finds a defense attorney, what do you think that defense will be?

I think the defense is going to focus on a few different things. One is similar to what we talked about last time. There's probably going to be some allegations. And to be clear, I think they're unsubstantiated and unsupported, but allegations of prosecutorial misconduct and that this is basically political retribution and a political prosecution. So that's going to be one angle. I think that a second angle is probably going to be some version of the argument we heard in Trump's post-arraignment speech slash campaign event, which was also the line of argument he pursued before Judge Cannon in an earlier round of litigation in this case, which is that these documents are somehow his and, you know, they're kind of invoking the Presidential Records Act, which makes no sense. Previous times they've suggested, you know,

he declassified them, or there's going to be some kind of variation of this argument where they're going to say basically all of the documents created by any federal agency are prepared for the president and the president owns them and can kind of do what he wants with them. Again, this argument makes no sense of the law and is absolutely insane, but we'll probably see some variation of that. And then the third is, you know, on those charges that actually require the government to show that President Trump knowingly, you know, defied the government's orders or knowingly, you know, concealed and refused to give over classified secret information, we'll probably hear challenges that, oh, he didn't actually know that or he didn't actually understand that he didn't have the legal authority to possess that. That's why,

you know, the recorded audio conversation of him admitting, I know I can't actually declassify this is so damning and important, but those would be my early predictions about what we're likely to see. Do you think they will try to get his attorney's notes thrown out? Yes. So they are also certainly going to challenge some of the evidence underlying the obstruction of justice charges in particular, relate to conversations that Donald Trump had with his lawyers, during which he basically told the lawyers, don't comply with this subpoena, or can we just hide the documents, or something like that. And of course, they are likely to assert that any conversations

and directives between Trump and his lawyers are privileged and subject to attorney-client privilege. Now, in another case in D.C., a district judge concluded that even though the conversations were between Trump and his lawyer, those conversations were not protected by attorney-client privilege because they fell within what's known as the crime-fraud exception, where if you are committing a crime with your lawyer or using your lawyer in furtherance of a crime, you know, that's not privilege. But Judge Cannon will basically decide that anew here. And so that will also probably be a challenge to the government's ability to use some evidence or some theories, you know, to support an obstruction charge as well as some others. you know, to support an obstruction charge as well as some others.

I will say a lot of legal terms can be obscure and confusing, but the crime fraud acceptance, particularly well-named piece of legal jargon. Yeah, no, very apt here. Yes. Trump obviously has a very full dance card when it comes to his legal entanglements. He has a trial scheduled around a civil investigation into his businesses in New York. He has his other indictments scheduled for next March. We are looking at potentially two more indictments in the coming months. Does this indictment in this case affect the timing of his New York case? Attorney General James in New York at a Positive America show on Monday night suggested it could affect both her case against the Trump organization and Alvin Bragg's indictment against Trump on the hush money

payments. I mean, it absolutely could. You can imagine, right, Trump's defense lawyers saying, you know, we cannot be defending, you know, three proceedings simultaneously and basically asking for continuances from some, you know, on the other hand, committing a bunch of different crimes and being charged with all of them is not exactly supposed to be a defense to any one particular trial or proceeding. But I do think that courts, again, because they are giving him additional process

and additional protections, given the importance of these proceedings, It's likely that if there is some conflict between the timeline of these cases, that they will basically allow him to delay some of the proceedings while others play out. Oftentimes when we have you on the show, for reasons unrelated to Trump's criminality. It is about terrible things the Supreme Court has done or is about to do. Today, they actually did something good. Could you explain the somewhat surprising and very important decisions the Supreme Court made today?

Sure. So the court in large part upheld the Indian Child Welfare Act. It turned away two major challenges to that federal law that contains a bunch of really important protections for Native families that make it more difficult to break up Native families and more difficult to place Native children outside of Native communities. Now, it is surprising in the sense that the court often does shitty, bad, flawless things. That would be the rule. This would be the exception, I guess. Right. But on this particular challenge, based on how the oral argument went,

we did expect that the court was going to rule against those challenges. Now, technically, it didn't rule on two other challenges, one of which is the equal protection challenge that maintained that the Indian Child Welfare Act by protecting Native Americans actually engaged in unconstitutional race discrimination. And what the court said is we're not going to address that challenge because the plaintiffs in this case aren't actually injured by the relevant provisions in the Indian Child Welfare Act that contain these placement preferences. And Justice Kavanaugh wrote a concurrence that was like, well, you know, if there were such a case that ever came before the court, you know, it's possible that I might rule for this equal protection challenge and invalidate parts of ICWA. But, you know, the court again turned away major challenges to ICWA and upheld the statute to the extent it addressed the challenges. So that is happy, welcome news. And not to claim too much credit,

but I will just point out that strict scrutiny went to DC last week for the live show. And ever since then, the court has basically been behaving. So is that causation? Is that correlation? I'm not sure, but of note. I think that's notable. I think maybe you should get back to DC since there are decisions on affirmative action, LGBTQ plus rights, and a whole bunch of other things that the Supreme Court could drop on our head any day. Indeed. Usually I'm the downer, but that one was from you.

Yeah. I mean, it's very rare there is a conversation with two people where I am not the downer. So I fell into my natural role here. Okay. Leah Lipman, thank you so much for joining us. We will talk to you again soon. Sounds good. All right, before we go, we did also want to talk about California Governor Gavin Newsom's hour-long interview with Fox News host Sean Hannity. Here is a sampling of how it went.

I will tell you, on every measure, from the economy, inflation, borders, energy, national security, he's missing in action. Let's talk about them in order. Let's hang on. Wait, but I want to challenge the premise. You said the economy, 13.1 million jobs. He's created more. These are post-COVID jobs. You know that.

That's an artificial number. No, no, no. Then let me just let me stipulate this as an as an opportunity to engage civilly on this. OK, fair point. Your president, Donald Trump, lost two point six million jobs during his four years. We've created thirteen point one million. Fine. You can maintain a covid frame. How about the fact that Joe Biden's created more jobs, six times more jobs than the previous three Republican presidents? You're right. Are you? I think he's a man of decency and character. I'm really proud of the president, proud of what he's accomplished. He's strong enough to be president. I think he's a man of decency and character. I'm really proud of the

president. I'm proud of what he's accomplished. He's strong enough to be president. That's strong enough. Look what he just did to McCarthy. He ran circles. Look at the vote card. I didn't vote. I wouldn't have voted for it. Exactly. Kevin got played by the president of the United States. You would do a two hour debate with Ron DeSantis. I'd make it three. Three hour debate. Yeah. Do I hear four and do it with one day notice with no notes i look forward to that okay i'm a border state ron de santos is not i know he's desperate to get in on the action no because a lot of people belly flop donald trump is going to clean is it fair that joe biden de santos was belly flopped do you he will clean

his clock he i don't have a crystal ball attention and he set this up months ago by doing an RFP. I have the contractors that he tried to hire saying he was going to send people to California. This is a stunt. It's embarrassing. It's pathetic. I like how Hannity crumples up paper, whatever Gavin is doing well in that conversation. Dan, let's divide this into two parts, performance and then the venue. How do you think Gavin did in terms of his performance? and then the venue. How do you think Gavin did in terms of his performance? He was great. He was really, really good. He was prepared. He was crisp. Other than that one use of the term RFP, he spoke like a normal human, explained things in very easy to understand ways. I think he dealt with the Biden age question in the most easily understood way possible, particularly with this

audience with, if Biden is not strong, why did he just run circles around Kevin McCarthy and the debt ceiling deal, which worked really well because Sean Hannity opposed the debt ceiling deal. And so it was very, very well done. Yeah. He was so much better prepared for this interview than Sean Hannity was, even though Sean had his little charts in his brown paper bag. But like Gavin had command of the facts, he pushed back hard. I thought he was civil and thoughtful. He didn't seem defensive. Like when Hannity started pressing him on homelessness numbers in California, Gavin said the status quo is disgraceful. You know, he was just like very honest about that. The tone, though, was positive and impressive. I think it's worth noting that what Fox News did with that performance was turn around and use Gavin's performance to contrast with Biden to make Biden look old. Now, Gavin Newsom can't control that, but that's just

what Fox does. I spent some time with Gavin Newsom fairly recently. I'll be honest, I went into it feeling like I'm not really sure about this guy. I don't know what I think about recently. I'll be honest. I went into it feeling like I'm not really sure about this guy. I don't know what I think about him. I came out really impressed. He clearly works his ass off. He has in private conversations and on TV, he has facts like this at his fingertips at all times. He memorizes a lot of stuff because he's dyslexic. And this is how he works. He just commits things to memory. As you and I know, Dan, having lots of facts and statistics available to you as a communicator can cut both ways. We saw Obama do really well with this and not. But in this case, he really did well with Hannity. I also think like Gavin is super competitive.

He wants Democrats to be tough. He wants to win. You can tell that he hates Ron DeSantis's guts. Anyone who wants to spend three hours with that guy at a debate or anywhere else has something going on. He is very worried about the information bubbles. I think he said it to Hannity in his interview, and he clearly watches Fox all the time. I told Gavin that I would like to see him go on Joe Rogan's show,

because I think Rogan's got a big audience of people who are far more likely to be persuaded than the typical Fox voter. But that gets us to this question of why do you think he did Hannity? And do you think that's the right venue? I am someone who has been pretty skeptical of Democrats spending their time going on Fox, largely for the reason you said, which is even if you do great in the moment, they will take what you say, cut it up and weaponize it on all the 23 other hours of the day that where they're trying to destroy democracy in America. But in this case, I think there are some exceptions to the Democrats don't go on Fox rule. And that is for a certain number of communicators who are talented enough and have a plan to go in there and win the fight and win the fight in a way that will go viral beyond just the people who happen to be

tuning into Hannity at that time at night, because none of those people are persuadable. Just there was very few of them. The odds that any of them live in a battleground state are quite small, but because he did it and he did it well, it went viral and got attention elsewhere and people will consume it by osmosis on social media through other coverage. And so I think it was the right thing to do. And what you want to do in this sort of disaggregated media environment is do things that get attention beyond the people who are watching the moment in which you do it. And so he had a plan to do it and he did it well. Yeah. I mean, I think in 2020, there was this big controversy about whether Democrats should

go on Fox News and do these special town halls they were creating. And I think what's gotten forgotten about that debate was that it happened in the midst of a major effort to get advertisers to boycott Fox. And that's why people were so pissed about it. But this broader question of like whether Democrats should go on Fox or not is not a new one. We struggled with this in 2009. I agree with you. What made Gavin's interview so smart and compelling was it won't just reach those Hannity viewers, but it became like a media event that was covered unto itself. And that will get his brand out. It'll get the message out. If I worked at the White House, would I advise Joe Biden to do Fox News? No, because I think

ultimately, like, there's more downside than upside. And when the chips are down, we know that Fox is going to go all in for the Republican Party. We read all the Dominion emails about what they really think about the call in 2020 for the election. We saw the other night they called they called Biden a wannabe dictator in a chyron. I'm not sure that's the most like level, even handed place. But I agree with you. I think surrogates should go on. I think Democrats should go on who are ready to push back hard and do it with a smile. But I do think to your point, Dan, like big picture, I agree. Like Fox News is not really the audience I'm worried about. The average Hannity viewer is probably like 70 years old and super conservative and not about to change. The people I think about a lot are like disaffected voters who feel like politics is lame, a waste of time. All politicians are the same. So why even bother? And I think increasingly you see polling where there's young men of all races falling into this category, like kind of like Joe Rogan, kind of barstool sports,

fans, demographic. And I think if you want to persuade people who are skeptical and hard to reach, I think you need to make a push there and just help those people understand that like politics isn't annoying people who annoy you on Twitter or cable news from both sides. It's like you vote for the person who sends your buddy to Iraq or not. You vote for the person who says your mom with breast cancer has a precondition and can't get health care or the person who fixes that problem and allows your mom who had breast cancer to get health insurance. Or, you know, you vote for someone who thinks that trans kids should be treated like human beings, like everyone else in this country or not. And I think finding those people and talking to them about kind of like the underlying stakes of politics are what is so important and making them understand that no, all politicians are not the same. Like we're all smart people. We can all figure out where they stand on things and figure out who is making choices that matter to you.

And I think getting to those folks is the hardest part of politics. It's not even the message. It's like the delivery mechanism. Yeah, I think that's exactly right. I, you know, I, I don't disagree with you that I don't think Joe Biden should go on Fox per se. It, I think there really is there, there's this question about going, why are you going on Fox? Are you going on Fox to reach some sort of mythical Fox viewing open to Democrat voter? That's a mistake. Thinking that like Brett Baer is going to give you a fair shot or some stupid shit like that. What if you do it to get a reservation at Cafe Milano? Is that a good reason? Sorry, keep going. Is he still allowed there? I guess he probably is. I don't know. God knows. But I think if you, Joe Biden, I'm not saying he should do Fox. I just want to stipulate that.

But some of his best moments are when he's mixing it up with Republicans, like during the State of the Union. So in the course of this campaign, as it unfolds over the next year and a half here, like some moments like that, you know, I think when he gets into a little bit of argument or something with Peter Doocy during either, you know, Q&As or press conferences or whatever. He usually comes off pretty good, I think. I mean, I even thought when he called him a son of a bitch, that was pretty good too. He seems human and real and on his game. And so finding some moments of conflict like that, you don't want to give Sean Hannity or the rest of these yahoos the president of the United States, which would be a huge boost for them ratings-wise and dollar wise but there is there is something in what gavin newsom did that also works for biden so so joe biden should go on newsmax and start the interview like listen you piece of shit and kind of go from there just have a super viral moment grab the guy by his collars and just say listen to me just just shake him have a secret service guy come in and take care of him i think that's great advice.

I hope Ben LeBold is listening to this right now. He never misses an episode. He's got nothing better to do. Dan, last question for you before we let you go. Listeners probably know that you're like a famous YouTube star and you do this show called like Experts React or some shit like that. And I've been doing this really fun new show on YouTube with my friend, Brian Tyler Cohen, where we draft and rank fun things like the greatest campaign gaffes in history.

It's called Liberal Tears. And for some reason, you keep attacking us on your show, which is far more people watch it. And I'm just wondering why you feel the need to gatekeep YouTube and what Brian did to you to get us to this place and how we can kind of fix it. Is your show, what is your show called again? I thought it was liberal tears, but T I E R S. Oh, that was called Brian's coattails. He is like a YouTube. He's a gigantic YouTube star.

Yes. Look, I love your show. It's great. We look, we have a little fun competition around here. You know, I'm just trying to, I'm just trying to keep up. We look, we have a little fun competition around here. You know, I'm just trying to, I'm just trying to keep up. Yeah. Okay. Well, look, the next episode is coming out on Wednesday, June 21st. It features some truly sadistic punishments for the loser of our competition.

In the previous episode, I spent the morning borrowing my to wipe a off my fucking back. So make sure you subscribe to the Positive America YouTube. And if Dan keeps coming after us, Elon, if you're listening, because Dan is trying to deplatform us, we are willing to take the Tucker Carlson deal and take the show to Twitter. Like, I think that's a great pitch.

If you love sadism, watch that show. Thank you. Thank you very much. I still have fucking anyway. Final note, we just wanted to say a big thank you to our amazing producer, Andy Gardner-Birdstein. This is her last week. She has been a critical part of the team that works their asses off long hours to make this show happen. We are incredibly grateful to her, to everybody that works here,

but incredibly grateful to Andy in this moment and we'll miss her and just want to say thank you. You know Andy because of the sock puppets, but Andy has done an incredible job on this show, helping us make the show that we want to make, helping us return to having a lot of fun on the show. She has been a huge asset to Crooked Media and Pod Save America and we're going to miss her.

Damn right. And those sock puppets were just incredible. Just, I mean, they looked, they're're uncanny how do you make a sock puppet that good anyway well that's it for this week's episode i'm about to get in the car and just drive over to john's house and just sort of like ladle soup into his mouth or something we're gonna baby burn him back to health so uh we'll let you go dan and uh talk to everybody we have no episode tuesday because it's juneteenth so I think the next episode is Thursday. Bye 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 Charlotte Landis. Thanks to Hallie Kiefer, Madeline Herringer, Ari Schwartz, Andy Taft, and Justine Howe for production support. And to our digital team, Elijah Cohn, Phoebe Bradford, Mia Kelman, Ben Hefko, and David Tolles. Subscribe to Pod Save America on YouTube to catch full episodes, exclusive content, and other community events. Find us at youtube.com slash at Pod Save America.