The Bulwark Podcast - A Bad Day for the Kraken

Episode Date: October 19, 2023

Sidney Powell pleaded guilty and agreed to testify for the state in Georgia—Trump's legal woes just took a turn for the worse. Plus, Jim Jordan's bad day, and a plea for social media types to wait for the facts before weighing in on the Israel-Hamas war. Ben Wittes joins Charlie Sykes for The Trump Trials. show notes: https://www.lawfaremedia.org/article/on-strategy-law-and-morality-in-israel-s-gaza-operation https://www.lawfaremedia.org/article/to-gag-or-not-to-gag-a-first-amendment-showdown-in-the-jan.-6-case

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Are they suggesting you can just put a bucket under a leak in your ceiling? That's not good enough. Your Toronto apartment should be safe and well-maintained. If it isn't and your landlord isn't responding to maintenance requests, RentSafeTO can help. Learn more at toronto.ca slash RentSafeTO. Welcome to the Bulwark Podcast. I'm Charlie Sykes. Interesting day in the news. Every week we set aside one show to talk about Donald Trump's trials. The former president facing four separate indictments in New York, in Washington, D.C., in Florida, and in Georgia.

Big developments today. Meanwhile, Jim Jordan appears to be failing once again. Why is Jim Jordan not winning, and what does that say? And of course, we continue to have the ghastly war in Israel, where the truth is limping to catch up with the spin. We're going to talk about all of that today with our usual guest, Ben Wittes from Lawfare. How are you doing this morning, Ben? Better than Sidney Powell. Okay, it's a tough day for the Kraken. It is a tough day. And better than Jim Jordan. That's how we measure these things. Is Jim Jordan having a better day than I am? Is Sidney Powell having a better day than I am? Right now,

the sun is shining. It's gorgeous in Washington, and it is a bad day for Jim Jordan, and I am relishing his pain. Well, what if Jim Jordan doesn't drop out? What if he forces vote after vote? You know, what is the limit on schadenfreude? How many days can we wake up and say, hey, Jim Jordan lost the vote for speaker again? I can enjoy this as long as he can suffer it. The only problem for me here is that there are Ukrainian soldiers who need weapons, and I actually don't want the federal government to close. And so as long as it does not persist long enough to actually do those things, I feel that like the eagle pecking out the liver every day of Prometheus, I can keep at this as long as he can. Okay, but he is not Prometheus. I don't want to leave that

analogy hanging there. There is nothing Prometheus-like about Jim Jordan. Correct. I just meant the repetitive nature of the infliction of pain. The pain doesn't bother me, really. The karma is truly extraordinary because the Freedom Caucus led by Jim Jordan never actually accomplished anything. He never built anything. He never passed any legislation. All he would do is blow things up, or rather, he would stop things. He would have a fit, hold his breath, and undo the work of the grownups. Well, interestingly enough,

this is the revenge of the grownups, isn't it? This is the revenge of the people who actually want to do their job, and who are basically saying, no, we're going to give you a little bit of your own medicine, Jim Jordan. And the interesting thing about it, as best as I can tell, a whole bunch of them are doing it for different reasons. So you have the Ken Bucks who are doing it because he's an election denier. You have the people who are standing up for the honor and integrity of Steve Scalise, who actually won the election. You have the people who are doing it because Jim Jordan is thuggishly bullying them, and his people are calling their wives and stuff.

And then you have the people who are doing it for governance reasons, because they actually disagree with him about things. And I think that's an interesting coalition. You know, some of these are not my favorite people in the world, but those are all totally legitimate reasons to oppose Jim Jordan. And I think it's interesting that all of them are in play right now. Right. And they're all legitimate reasons. Look, I think that there's a kind of a misleading shorthand to say that these are the moderates who are standing up against them. It's not just moderates. I mean, there are some very, very solidly conservative folks there. There's a different dividing line when it comes to dealing with the election denialism and the

the nihilism of a Jim Jordan. I wasn't going to get into this because I've already done a YouTube shots on all of this, but I think it's really interesting. John Adams, the second president, once described himself as obnoxious and disliked, but John Adams was a statesman. Jim Jordan is also obnoxious and disliked, and no one is going to mistake him for being a statesman, right? I mean, he is a world-class asshole. He's a jerk.

And one of the other reasons he's losing, and you mentioned this, Jim Jordan has relied on bullying and basically, you know, strapping on his suicide bomber vest, you know, for years to, you know, get his way. is, I think, significant in its own right, because up until now, MAGA has always relied on the bullying, the threats, the social media, the mean tweets and everything to get people to fall into the line. And they did fall into the line. But just like in a football game, you use the playbook as long as it works, right? But then when it stops working, and right now, I mean, you have to change it. And right now, Jim Jordan is relying on the exact same Trumpian playbook that has caused the squishes to cave. And they're not caving. You know, again, I'm not a believer in unicorns, but it seems like kind of significant. It might be a little bit of a shift. And there's a critical

mass. And it did take a critical mass of people basically saying, I'm not going to put up with this guy's bullshit. No, I'm not going to give in. You're not going to give in. I'm not going to give in. And so maybe if it was three or four, they would have caved. But when it's 20, 21, 22, totally different environment. Matt Labash posted on Substack Notes the three ways in which Jim Jordan is like Hamas, which is one, you can't negotiate with either, two, neither is capable of governing, and three, both are willing to blame others when they blow up their own side. I have two additional ones to add to this, which is both have a penchant for coups. Hamas ousted Fatah in 2007 from Gaza, while Jordan seems to be the nominee, even though Scalise won the recent leadership election and, of course, also played a role in the January 6th insurrection. And, of course, reason number five is that they

both take hostages. So I don't know what's going to happen. There's all this buzz about, you know, the Patrick McHenry option, where you might have a bipartisan coalition that would empower the acting speaker to be like the real speaker. This is something that I've been predicting all along, that there's a certain power to inertia, that once you're in the position, the easiest thing to do is to keep you there. The problem, of course, is that the dirtiest word in the House of Representatives right now is compromise, at least among Republicans. The idea that you would make a deal with Democrats, this is like the cardinal sin, but I don't know that they have any other way out. There's a lot of speculation about how this is going to play out, but you can tell

there's a real level of hysteria right now on the far right, realizing that if they do empower Patrick McHenry with some Democratic votes, that this is not just a short-term solution, that this really does marginalize what you call know, what you call the, you know, the crazed slavering jackal caucus. It makes them irrelevant, at least for the time being. And they're going to fight hard. But isn't it interesting how extremely they're going to fight hard against empowering a guy who's a very conservative Republican, Patrick McHenry. This is not that game, Jeffries. It is a emblem of this not being a conservative group. This is a kind of nihilistic slavering jackal group that the idea of a conservative speaker isn't good enough. If that were good

enough, Kevin McCarthy never would have been removed. The essence for the crazed, slavering tackle caucus is, will the speaker ever say no to us? We reserve the right to say no. The speaker cannot say no to us. And that is actually not a political test. It's a loyalty and fidelity test. Anyway, it's a glorious fall day in Washington, and I am not a sadist. I don't generally enjoy watching people's pain, but I am going to enjoy watching the third vote if it happens. I'm going to enjoy not watching the third vote if it doesn't happen. Jim Jordan's pain is a bomb to my soul. Speaking of interesting developments, I am sorry, once again, that we do not have your baby cannon.

And maybe you need to bring it out of mothballs. You know, it's sitting there right over there. Let me show you baby cannons sitting on the wall. Oh, this is a bonus. There it is. There it is there it is oh there is in fact a few of them right there right under the axe embedded in the pineapple is the original og baby cannon well the reason i was thinking of the baby cannon was today would be a good day for it to go boom not a good day for theken. This broke about 15 minutes before we began this

podcast. Sidney Powell, the wooliest of the woolly conspiracy theorists who is set to go to trial, pled guilty this morning. She pled guilty to these six misdemeanors and she's basically becoming a witness. So tell us about this. I mean, Sidney Powell, I have to say that on my bingo card, I did not have Sidney Powell being one of the first to roll over. What's going on? Well, so the first thing that's going over is jury selection was scheduled to start tomorrow. So this was one of the last days you could reach a plea. I am actually a little bit surprised that we don't also have a deal from Ken Chesbrough, who's the other person who's going to trial with her. But look, Chesbrough has a better case in defense than she does.

And I think Sidney Powell, you know, she is a crazy person, but in this case behaved like a rational actor, actually. She's going to get no jail time, only probation. She was facing potentially a very serious amount of time if she was convicted. She's not young. As she told the court today, she is 68, notwithstanding her extraordinarily youthful appearance, as she put it. You know, they say there's nothing like a hanging to concentrate the mind. This is the judicial equivalent of that.

And all this asks from her is an acknowledgement that she, in fact, did participate in the conspiracy to... Illegal conspiracy. Yes, to basically steal coffee county's election data so ben let's just play a little audio from the hearing that took place just a few minutes before you and i are having this conversation this is from the fulton county courthouse and ma'am do you understand that this is a negotiated plea which means that your attorney and i have reached an agreement or the state has reached an agreement as to the proposed sentence that will be made to the court? I do. Do you understand that the recommendation being made to the court as to this accusation on counts one through six that you be sentenced to 12 months of probation to run consecutive with one another?

I do. asking that a $6,000 fine be imposed and restitution of $2,700 be paid to the state of Georgia, an apology letter be written to the citizens of the state of Georgia, that you truthfully testify at all hearings and proceedings and trials involving the co-defendants in this matter, and that you have no communication with co-defendants, media, or witnesses until this case has been completely closed against all defendants. I do. That was not the clip I was expecting you to play. Okay. The clip I was expecting you to play was Judge McAfee asking her whether the state's evidence would in fact prove what the state says it was, and she acknowledges that it would, and he asks her whether she's pleading guilty because she is in fact guilty, and she acknowledges that she is.

Do you understand the nature of the charges that have been reaccused that you would be pleading guilty to today? I do, sir. And are you pleading guilty today because you agree that there is a sufficient factual basis, that there are enough facts that support this plea of guilty? I do. that there are enough facts that support this plea of guilty. Now, these are standard colloquy discussions in a plea hearing, but, you know, dramatic nonetheless. Not often you hear the Kraken acknowledge, yes, yes, I am the Kraken and I am guilty. So the key there seems to be that you will testify truthfully in all of the cases. So how significant is this? What will Sidney Powell be able to testify to in terms of Fannie Willis's overall case?

Just put this into perspective to me. How big a deal is this? I think it's a big deal along three separate axes. The first is that, you know, Sidney Powell is in the room in the December 18th crazy meeting in the White House in which, you know, they talk about seizing voting machines and declaring martial law and making her special counsel. There is some direct interaction with Donald Trump and Rudy Giuliani and company that she is immediately a party to, that she can testify to. And elsewhere in the hearing, by the way, there's a clip in which

the prosecutor makes clear that they have had a proffer session with her, which means they know what she's able to testify to. So that's the first thing. The second thing is she could be, and probably is, pivotal to the whole Coffey County episode, which is not especially of national salience, but plays a very big role in the Fulton County indictment. And I think she as a witness is, you know, capable of really nailing that down and giving some inside color to it. Remember also that Scott Hall, the bail bondsman who pleaded guilty earlier, was also involved in that episode. And so I think with these two pleas, Fonny Willis has really nailed down the coffee county side of the thing. And then the third element, which is going to be less discussed, I mean, we're talking a few minutes, but she waives her Fifth Amendment rights here, and that has very big implications for the federal case.

This is what I was going to ask you next, yes. She understands that she's waiving her Fifth Amendment right not to incriminate herself if and when she testifies, which means she must be anticipating some cooperation arrangement with the federal prosecutors because she is likely to incriminate herself very deeply at the federal level. And it is pretty apparent anyway that the feds that Jack Smith is not a party to this deal. So I think you have to now be looking for her to try to plead out at the federal level where, of course, she has not yet been indicted. To reiterate your point, one of the significant things about Sidney Powell is as crazy as she was, is she was in the room. She was in the White House. She was in that meeting in December. She can speak to what happened there. So, again, this is potentially valuable for Jack Smith. Okay, so- And by the way, Jack Smith will not let her plead to a, she's an unindicted co-conspirator in the federal case against Trump. So far, they have not indicted anybody else.

The feds will not take a misdemeanor plead out to this. All right, so let's shift to this election subversion case. Big news this week since you and I spoke, Judge Tanya Chutkan issued a gag order against Trump, barring him from making public comments targeting court staff, special counsel Jack Smith and his staff, and any potentially foreseeable witnesses. Chutkan ruled that his pretrial attacks threatened the integrity of the upcoming trial over charges related to his efforts to subvert the 2020 election. So a couple of days after, I've lost track of time now, after she issues this order in this case, Donald Trump goes out

and attacks the New York Attorney General, who's involved in a completely separate case, and actually retweets a post from a white supremacist that actually includes Letitia James's home address. So just give me a sense of how this is going to play out. Donald Trump continues to test the judges, test the judicial system. Judge Shutkin has now made her order. Now she has to decide how she's going to enforce it, doesn't she? Right. The order with respect to Judge Chutkan's case does not cover Letitia James. Right.

Exactly. Trump here is either being lucky or being clever that he's not in violation of the order by endangering the life and safety of Letitia James, but these courts are in dialogue with one another rather explicitly. So when Chutkin was considering this motion, the Justice Department brought to her attention actions that Trump had taken with respect to the court clerk in the New York civil case, in which he had suggested that the court clerk was dating Chuck Schumer, which is, of course, nonsense. And so they are very aware of what he's doing in these other cases. And I would not be surprised at all if

the New York case, where he also, by the way, has a gag order, or at least an order that somewhat limits his ability to do this stuff, takes notice of that in some ways. Judge Shutkin was extremely careful in her ruling the other day. She did not prevent him from attacking the city of Washington, D.C. She did not, I thought, in a fashion that was pretty classy, she did not prevent him from talking about her. She did prevent him from talking about court staff or witnesses. Right. her. She did prevent him from talking about court staff or witnesses. And I think you will see him prod around the edges of that. Like Sidney Powell, he's crazy, but he's not so crazy that he simply defies. He tries to defy in ways that give him plausible deniability about things. I would not.

I think the technical legal term is fuck with Judge Chuck. I think so. I think she's going to police this order relatively carefully. No, and I thought it was a very careful order. I mean, she did say that, you know, Trump was prohibited from using words like deranged and thugs because he doesn't have carte blanche to implicitly encourage violence against those who are just doing their job. And the term thug in her eyes could be a signal to his followers to do harm. But her order also included this

language. I mean, Trump's going to go out and say, I'm gagged. He's already said this. It's an attack on my First Amendment rights. It's disturbing. She wrote, this order shall not be construed to prohibit defendant Trump from making statements criticizing the government generally, including the current administration or the Department of Justice, statements asserting the defendant is innocent of the charges against him, he can do that, or that his prosecution is politically motivated, he can do that too, or statements criticizing the campaign platforms or policies of defendants' current political rivals, such as former Vice President Pence.

So she's kind of laying it out. Look, we're not preventing you from engaging in this kind of political speech. We're narrowly targeting this to dangerous speech. Correct, and to direct or couched calls for violence against court personnel, against witnesses, or against the special counsel's office. My colleague, Hayman Hahn, wrote an extremely detailed piece on lawfare describing the hearing, which took place, it was a two and a half hour hearing, and she really walked through it minute by minute. So for those who want to understand how Judge Chutkin, what the lines that she's drawing is, what she ruled for Trump on, and she did actually rule for Trump on some substantial matters, what the lines she's trying to draw is, what her reasoning is. I recommend Heyman's Dispatch from, I guess it was Monday or Tuesday, I can't remember which. at Tread Experts. Ensure each winter trip is a safe one for your family.

Enjoy them for years with a Michelin X-Ice snow tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin Tread Experts dealer near you at treadexperts.ca slash locations. From tires to auto repair, we're always there. TreadExperts.ca It is difficult, even for people who follow this stuff, to keep track of all of the trials. I do understand this. So there's also a lot of developments in this New York fraud case, not a criminal trial.

Some interesting developments that may not have great significance. The judge actually had to tell Trump to keep it down. He was talking and trying to say things during the testimony. It's boring to sit through a case that's taking away all your money. You know, you get you get restless. It's, you know, anybody who's been with a five year old at a show knows the sort of fidget urge that happens. And you you got to respect that.

The testimony that I thought was the most interesting this week. Yesterday, we had this appraiser, this professional appraiser who they have been citing. They're trying to say that, you know, we didn't overvalue this property. We relied on his work. And this appraiser who projected the value of 40 Wall Street was back in 2015 was cross-examined. I mean, the Trump lawyers want to get this appraiser to admit that he undershot the projected value, but the guy's name is Doug Larson. He wouldn't agree. Trump was in the courtroom, threw up his hands in frustration. So the guy is basically saying, no, I gave you a legitimate valuation of this property. I said,

what did he say? It was worth what? $40 million. And you said it was worth, they wanted to say it was worth $200 million. So this seems significant because just valuing property can be a subjective thing, right? It's not a science, it's an art. You and I could disagree. Is your house worth $800,000 or worth $750,000? On the other hand, in this particular case, the prosecutors are trying to say, we have evidence of intentional deception here, that you had professional hard data saying it was worth this, and you didn't just increase it by 10%. You just blew up the number by multiples. So this is kind of an important piece of evidence, an important witness. And you could tell that Donald Trump thought so. He was very annoyed by it. We've talked about this issue before. There is a range.

You never know what something is really worth until you sell it. Right. And the definition of value is what somebody is willing to pay for it. And when an appraiser appraises something, what the appraiser is really doing is making an educated guess about what it could sell for. And that is, as you say, more art than science. When you lie about what an appraiser said, if you're a professional appraiser and I say, how much is my diamond ring worth? and you say it is worth $10,000, and I list it as an asset as worth $100,000, that is not the art and science of appraising. That is literally you've had it appraised, and then you have misrepresented the appraisal. And so that gets to be a little bit more objective, I think. And Trump knows that that and he knows what he's doing

and what he's been doing for years and years. He feels entitled to do it. He believes, I think, probably sincerely that everybody does it and that, you know, anybody who doesn't do it is just a sucker. But there are these people who don't behave that way. And let me give you one example from this world, which is, it has been reported by the New York Times and by reporter Mike Schmidt, that Jim Comey was audited by the IRS after his firing. Former FBI director. Former FBI director, disclosure, good friend of mine. I care about Jim. But when he was audited, according to Mike Schmidt, the IRS turned out

to owe him some tiny, small amount of money. Because in fact, unlike Donald Trump, he does not cheat. Now, whether the audit was politically motivated or whether it was a random thing, I'm not going there. I'm just saying there are these people who don't cheat. And that's mind boggling to Trump, who cheats and feels entitled to cheat. And I think when you turn the mirror on him on that, it clearly causes him a lot of distress. Well, I mean, and this is not just a kink that he has. This is really central to his entire philosophy of doing business. You know, he's written about this. He's spoken about how you

exaggerate, you sell all of your successes. I mean, that's how he brazened his way through his various bankruptcies and everything. So this is very central to him, right? Yes. And in fact, he's not ashamed of it at all. Hillary Clinton accused him of it in their one of their debates that he doesn't pay taxes. He said in front of a national television audience while running for president, that makes me smart. And so now you have a proceeding. It's not a criminal proceeding, but it is a proceeding that's worth a boatload of his money and his ability to do business in which the court is assessing whether he considers the cheating that makes him smart to be, in fact, a basis for massive liability. And I think it causes him some genuine cognitive dissonance

and distress because he's proud of himself about it. A wobbler peel. Your tread's worn down or you need a new wheel. Wherever you go, you can get a pro at Tread Experts. Ensure each winter trip is a safe one for your family. Enjoy them for years with a Michelin X-Ice snow tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin Tread Experts dealer near you at treadexperts.ca slash locations. From tires to auto repair, we're always there at treadexperts.ca slash locations. Okay, so let's switch gears a little bit since we're talking about the law. We're going a little bit off our main target here, but you wrote this amazing piece here in Lawfare on strategy, law, and morality in Israel's Gaza operation. While law restrains

Israel in some ways, it does not prevent an Israeli response to Hamas that will morally discomfort not only those who hate it, but many of its friends as well. This is a really thorny, difficult, painful subject. And this is like, what is this like your 50,000 word essay? We won't be able to go through it all. But talk to me a little bit about all of this, because there is this necessity to parse out the laws of war involving targeting civilians, having civilian deaths, what is permissible, what is not permissible. The lines sometimes seem bright, but they're not. So just talk to me a little bit about your thesis here,

what you're wrestling with. I have really tried to stay out of the social media mudslinging about Israel and Gaza. I have spent a lot of time over the years with both Israelis and Palestinians. I care very much about this conflict and about the harms that it produces. And I don't really think yelling at each other about it is helpful. And so I don't do the Israel sucks, no Hamas sucks, no Palestinians suck, no Israelis suck thing. I just don't do that shit anymore. The problem in a lot of the dialogue about Israel and Palestine is that people pervasively confuse morality with law with strategy. And I want to insist that they are in dialogue with each other. They're importantly interlinking, but they're actually different. And so there's a lot of things that we think of as immoral that are actually perfectly lawful. For example, killing civilians is not a violation

of the laws of war. Targeting civilians is a violation of the laws of war. And when you conduct a military operation in Gaza that is pristinely legal, you are going to kill civilians. And that should morally discomfort everybody. This is complicated because when you bomb a city, you know, there may be terrorists in Gaza City. When you begin bombing residential, you know, apartment blocks, is that targeting civilians? How does this fall on the continuum? When the United States Air Force bombed Cologne, was that a war crime? Let's bracket the World War II examples because, first of all, they predate the modern Geneva Conventions and the additional protocols. The laws of war were pretty different then. But take as your general

legal rule that you are never allowed to target civilians. You are allowed to target combatants or belligerents of the other side. And when those two are not necessarily distinct from one another because of bases next to a civilian facility or in the case of Hamas, because they're literally basing themselves in the same buildings that civilians live in. You have to weigh factors like the necessity of the military strike, the expected military gain against the expected civilian harm. And you have to look at the question of whether the expected civilian harm is proportionate to the expected military gain. Is that subjective or objective? Because we talked about the difference between

art and science before. This sounds more art than science. Well, it has elements of both. So broadly speaking, the U.S. military and the Israeli military have similar attitudes toward what strikes are lawful. There are important differences that get technical really fast. The Israelis are conservative in certain situations in which we are aggressive, and they are aggressive in certain circumstances in which we are conservative. And so if you put a bunch of Israeli mags, which is what they call their jags, and jags in a room to argue about targeting law, there will be areas of difference. But broadly speaking, rule of law militaries are mostly aligned on what are lawful strikes in theory. Now, what happens in a place like Gaza is that the theory becomes very, very muddled in practice. And so, my first point is that if you're trying to ask,

is Israel committing war crimes, you cannot answer that question right now. Yes. And the reason you can't is if Israel were committing pervasive war crimes and targeting civilians in Gaza, it would look exactly like this. That is, you'd have a lot of apartment buildings bombed, you'd have a lot of people buried in the rubble, it would look exactly like this. That is, you'd have a lot of apartment buildings bombed, you'd have a lot of people buried in the rubble, it would be awful looking just as it is. And if Israel were conducting a pristine, perfectly LOAC compliant, law of armed conflict compliant operation, it would also look like this. And anything in between would look something like

this too. It's actually a bit of a mugs game in real time. The hospital bombing, which happened right after I published the piece, is a very good example of this. You have a catastrophic civilian strike that there's no apparent military reason for. And then within a couple hours of it, the Israeli army is saying it's not us. And the US military or US intelligence the following day backs that up. And so sometimes when you have these operations, you don't even really know, you don't know whether the target was military or civilian, and you don't necessarily know who's responsible for the strike at all. Oh, and by the way, nobody knows how to count Palestinian civilian deaths, because Hamas controls the health department and they assiduously don't distinguish. Let's talk about that for a moment because there was this rush to judgment and there's a lot of second guessing now and I'm engaging in this as well, both politically on the street and in the media where you had the big headlines, Israeli

airstrike kills 500 civilians, Palestinians say, well, not Palestinians, Hamas. So the New York Times rather famously, and it's getting dragged for it. This is true of Reuters and AP and the BBC as well. They basically went with the Hamas storyline. So in terms of like how we navigate all of this, because you're pointing out how difficult it is in the fog of war and the complexity of all of this and how muddled it all gets. Yet in real time, people have to react to these things or feel they have to react. So how bad was the media acceptance of the Hamas propaganda line? How damaging was that yesterday? It was a mistake. I think in all situations like that, you start with the fact that you know to be true, which is that there was an explosion at a hospital.

And explosion at hospital, many people killed. Palestinians allege Israeli airstrike would be fine with me, as long as you're prepared to update it when it turns out to be something else. Shouldn't it be Hamas? Make it very clear. You're talking about Hamas. We're not just talking about Palestinians. Sure. To me, the more upsetting thing than the media reaction was the reaction of international organizations, which were extremely quick. Yes.

These are organizations that are supposed to be authoritative on these matters, and they are just very fast out of the box to assume the facts. Who are you talking about here? Human rights groups, UN organizations. Well, they were playing off the media narrative, though. I mean, so Hamas puts out this story, when the New York Times goes with an AP goes with the BBC goes with it, it refuels the reaction of the Arab street, it fuels the politicians who cancel their meetings with the president of the United States.

And so everybody's going off of this, I think, is grotesquely misleading narrative. Right. So I agree with that. But I also think that, you know, the New York Times has to run a story immediately. And in the fog of war, if a hospital blows up or it turns out a parking lot next to a hospital blows up in Gaza, the New York Times doesn't get to wait and not run a story. It's a question of how responsibly it says it. The UN can wait. It can say something awful's happened. We're going to wait until we know what we're talking about before we say anything. And by the way, that's what you did. That's what I did. And I think the news organizations are in the diciest situation because they actually have to report it right away.

But nobody else does. But they have to report it. But going back to what you said, you have to report what you actually know. There's an explosion on or around the hospital. Hamas is claiming various things, make it very clear what the attribution is. Probably should include the fact that Hamas has not always been a reliable narrator. We certainly do not know that 500 civilians were killed. I have no idea what the actual number is. What we know is much, much smaller than what was claimed. So this is where I think the news desk had to go, okay, let's cut through all the spin. What do we actually know here? I agree with that. And I don't think very many news organizations shrouded themselves in glory with this.

You know, that said, I feel their plight more than I feel the plight of the groups that piled on and, by the way, jumped to allege that it was a war crime. A war crime by Israel rather than, say, an accident by Islamic Jihad in the course of attempting to commit a war crime, a different war crime. So the story is going to be more complicated. My big point in the piece is that we have a rush to think about these things in terms of law, and the better way to think about our biggest anxieties is in terms of morality. And here's my basic moral argument. I think a lot of what the Israelis are doing is entirely justifiable as long as there is a strategy. If there's no strategy, which is not at all clear, by the way, if there's no strategy, a lot of it looks much more like a reprisal strike. And I have a moral problem with reprisals in which a lot of civilians get killed. I have no problems with reprisals in which you're killing only Hamas. I'm fine with killing as many. But if you're going to kill a lot of kids, even lawfully, I want to know that

you're accomplishing something, that you have a long-term strategic objective. And I do fear, although I don't know, that the strategic thinking has not been adequate. I thought you made a very, very persuasive case there because we would all agree, or you and I would agree, that if the point here is to decapitate Hamas, that's fine. Then what happens? What happens the day after Hamas disappears? What is the strategy? And I think that it certainly looks as if you you know, you have this visceral reaction,

which is understandable. We understand the rage, but they seem to be making it up kind of day by day. And it's not clear they have a long term plan. I actually thought this was one of the more important parts of what Joe Biden and what Anthony Blinken are saying in the Middle East saying, OK, we really do. We have your back. We are with you. You're not alone.

We've experienced 9-11, but let me tell you about our experience after 9-11, the mistakes we made, what we learned from 9-11, because this is Israel's 9-11 times 10 or times 30. So the fact that they are, again, showing solidarity, but also saying, you know, you can make some serious mistakes here. You have to have a strategy. You have to think long term. You have to take into consideration these issues of law and morality. And so when we look back at the lessons of 9-11, you know, things like, you know, Abu Ghraib, you know, horrific disaster. Many, many, many others, you know, perhaps not having gamed out what would happen when Saddam Hussein was gone. What do we do next with Iraq?

We all remember all of this. So I don't know whether the Israelis are listening, but I thought it was a constructive thing to say. Well, I appreciate that. I worked very hard on not making noise until I was ready to say things that were ripe and developed. Very countercultural. Very countercultural, yeah. Yeah, it's very countercultural. You know, the nice thing about having been thrown off Twitter is that my temptation level

to, you know, sort of deliver myself of momentary thoughts is actually reduced. Interesting. momentary thoughts is actually reduced and you force yourself to take the time to kind of think through things in a logical way. And I also sent portions of the article before I had published it to a friend who's very sympathetic to the Palestinian cause. We had a sort of exchange of letters that I then incorporated into the article. So it was actually the way I like to write, and I'm glad it moved you. We were talking about some of the reaction. In my newsletter this morning, I talked about, of course, Rashida Tlaib, one of the squad members who put out, who did not wait,

who put out an immediate tweet buying the Hamas line and weirdly enough, or strangely enough, blaming Joe Biden for this carnage. And even as the evidence has mounted that, in fact, it was not the Israeli airstrike, she has not backed down. She's kind of doubled down on it. She has doubled down. Now, Elon Omar has kind of walked back her comments, you know, saying, hey, a lot of the information we get is wrong. She hasn't apologized. But Rashida Tlaib is doubling down and appears is not taking it down, is not apologizing, is not modifying her position in any way whatsoever. And then when reporters ask her about it, she just doesn't even answer them. She's certainly not covered herself

with glory. And by the way, I would make a distinction between the news media folks in the fog of war that made mistakes, who have now corrected those mistakes, versus the politicians who said, this matches my narrative, I'm going to push the narrative, and I'm not going to back off on it. I think that her situation is much worse. And also, you know, among the social media glitterati, people who are quick out of the gate to make allegations and make assumptions and assume facts, and then correct it, and people who don't bother because, look, there's a very simple methodological approach intellectually to when something awful happens in you can say in the middle east broadly or in but it's really concentrated in gaza which is first of all wait 24 hours take a deep breath just because the facts are going to clarify they may clarify in a direction that makes it worse than it looks they may clarify in a

fashion that but yeah don't assume that what you think has happened is what happened. Give the facts a little bit of time to write them. Number two, if you can sort of identify the area of factual dispute, right? So sometimes we all agree what happened and we disagree about who to blame for it, right? So a bunch of, to use an example that happens periodically, a bunch of Palestinian young men on a Friday are on the Temple Mount and throw rocks, and there's an exchange of gunfire, and some people are killed, right? It's happened numerous times. There's no real dispute about what happened. There's a dispute about how you want to assess blame for it. Often, there is a genuine dispute about what happened.

And I would say, respect the fact that your gut about what those disputes are may well be wrong. Also, there's a moral obligation to do that because the misinformation can be wrong. Also, there's a moral obligation to do that because the misinformation can be deadly. People will die as a result of these narratives. There will be more attacks. We could have embassies overrun. So it's not just a matter of like you want to uphold your own sense of integrity. It's also, this is dangerous, dangerous stuff. I think that's why I'm a little bit more critical of the media response, because the fallout could be horrific.

I agree with that. Then the final point, and I know there are going to be some listeners who dispute the integrity of this point, but I'm going to insist on it, is wait for the U.S. intelligence estimate. The U.S. intelligence estimate of a given incident will come out in one of two ways. Either the President of the United States will, in a case as high profile as this, tell you what the U.S. intelligence, right? So, in this case, we had Biden go out and say, I don't see any evidence that the Israelis were behind the strike. And when asked how he knows that, he said the assessment of the Defense Department. That's a pretty strong thing.

Now, what happens when it goes the other way with an ally is a little subtler. The president's not going to land in Tel Aviv and point at Bibi and say, you're responsible for this. Here's what's going to happen if the estimate goes the other way. Few days, few weeks, few months later, you're going to have a Washington Post story about how U.S. intelligence does not back up the Ukrainian claim that it had nothing to do with the bombing of Nord Stream 2. And we're not going to go out and publicly accuse the Ukrainians or of the killing of Dugina, the right-wing nationalist. We're going to be delicate with an ally about that, but the U.S. intelligence community's job is to figure out the right answer to advise policymakers.

And one way or another, that assessment is going to come out. I actually trust the U.S. intelligence community to try to do a rigorous assessment and give us their best guess. And so what I would say is don't under any circumstances make up the facts in the first 24 hours. And if you can wait until the U.S. intelligence assessment happens, that is why we have an intelligence community. And it's a super good methodological approach. It's a good note to end on. Ben, thank you so much for spending time with us today on this episode of Trump Trials. We're going to have a lot to talk about next week as well.

Indeed. We'll do it all. And oh, yeah, I forgot to say at this time, we'll be back next week and we'll do it all over again. All right. Thank you for listening to the Bulwark podcast. We will be back tomorrow as well. And we'll do this all over again. The Bulwark podcast is produced by Katie cooper and engineered and edited by jason brown We'll be right back. TreadExperts. Ensure each winter trip is a safe one for your family. Enjoy them for years with

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