The Bulwark Podcast - Ben Wittes and Steven Shepard: He Is Still a Criminal

Episode Date: July 2, 2024

No matter how much the Supreme Court pretends that the words 'high crimes and misdemeanors' are not explicitly in the Constitution, Donald Trump is still a disqualified law-breaker and is exactly the kind of guy the Founding Fathers warned us about. Character is now the only real check on presidential power. Plus, if push comes to shove, what are the basic rules that govern a change at the top of the ticket? Ben Wittes and Steven Shepard join Tim Miller.

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approved by the FDA. Hello and welcome to the Bullard Podcast. I'm your host, Tim Miller. We are here today with our man, Ben Wittes, on the Trump trials, on the SCOTUS craziness. He's the editor-in-chief of Lawfare, senior fellow in governance studies at theOTUS craziness. He's the editor-in-chief of Lawfare, senior fellow in governance studies at the Brookings Institution. He also writes Dogshirt Daily. When we're finished with Ben, I'll be giving you an update on the state of play in the presidential race. Then we'll have Steve Shepard on to discuss what a brokered convention may or may not look like. Ben Wittes, a lot of news. How are you doing? Yeah, a lot of news and it's all bad. You think the debate sucks. So you say, well, there's going to be a French election and then

that sucks. And you're like, well, to heck with France, at least we're going to get a Supreme Court opinion. And then that's a disaster. You know, you got to look at puppy videos at this point. Yeah, puppy videos, maybe some good news out of Britain. I tried to watch the bear for distraction last night. That is not a distraction. I just want to warn people. And so then I flipped over to presumed innocent. It's doing pretty good. That distracted me for about 30 minutes from the horrors. So my Twitter feed ranges from some legal experts who are saying that Joe Biden is now a king, we no longer have a constitutional democracy. And then some on the other side saying this is being way overinterpreted, sends a lot of stuff back to the lower courts. So where do you fall on that spectrum?

Well, Joe Biden is a king, we no longer have a constitutional democracy is an excessive formulation of a true point, which is that there isn't any longer any ability to prosecute a president for criminal activity taken within his core constitutional responsibilities, and there may not be the ability to prosecute him at all for activity that is reasonably characterizable as within the outer limits of his responsibilities at all. Look, is it rhetorically excessive? Sure. But it's not wrong in the sense that yesterday morning, we assumed that a president who commits criminal activity in office is prosecutable for it. And today, we assume that a president who commits criminal acts in office has a very high degree of immunity, although the exact contours of it are still unspecified.

Yeah, so let's talk about those contours. Yeah, so they basically broke it down into three different types of acts. Right, although they didn't distinguish. I mean, and one of the just hair-pulling aspects of this opinion is that it failed in the most basic responsibility of an appellate court, which is to give clear direction to the lower courts. I have read this thing carefully. I cannot distinguish what's in what basket. That said, there are three baskets leaking into one another, right? So one basket is the core irreducible functions of the presidency that are not regulable by Congress. So for example, the pardon power, giving a state of the union address, hiring and firing cabinet officers, right? These are things that are core presidential powers

that the Congress can't really regulate. And so the Supreme Court says, if the Congress can't regulate them, it follows that the president must be immune from prosecution for acts of that nature. Now, whether that's right or wrong, the formulation as immunity is controversial, but the basic proposition that you can't prosecute the president for doing things that the Constitution gives to him and only him is not especially controversial. And so I think if the court had stopped there, the opinion would have been, it would have had its critics, it would have been debated, but it wouldn't be especially controversial. It would have knocked some facts out of the indictment, particularly about the contemplation of firing the acting attorney

general and replacing him with the environmental lawyer but you wouldn't have had everybody's hair on fire yeah okay before we get to the next act though i do i do want to drill in on one of those points though because you mentioned the pardon power and you know several people i saw including mona sharon my colleague and others pointing out the fact that okay well if there's immunity for some, for pardons, then essentially a president couldn't be prosecuted for, for being bribed for a pardon. Is that how you read this? Like you could bribe presidents for pardons and have immunity? Again, this gets to a different aspect of the opinion that is, I just think, wildly incorrect. So the court holds not merely that you are immune, you can't be charged with issuing an improper pardon, but that evidence of the

Immune Act cannot be used against you in some other charge. And so that aspect of the immunity, which just seems to me wildly excessive, does seem to prevent a bribery prosecution for a, you know, a bribed pardon, a purchased pardon. You would be able to charge the bribery, but you couldn't use the fact of the pardon as either the quid or the quo. And so, yeah, I think Mona is right about that. I don't think it's an inevitable consequence of saying that core presidential acts you can't be prosecuted for. It's a consequence of a second or third or fourth step that the court goes. So the second step is to say that there's this other immunity that covers all the other official acts that a president may take. They don't know if it's absolute yet, or they don't say. So, for example, a veto is a core presidential function. But, you know, giving a speech at a rally or consulting with Mike Pence about whether he should be hanged,

it's an official thing in some respect, but it's not necessarily core, irreducible presidential power. So they say there's a presumptive immunity there, but it can be overcome if you can show that prosecuting it would have no deleterious consequences for presidential power. So how robust an immunity that is, is unclear. That's my first hair-pulling criticism of the court. Why do you leave a question that important unclear, right? Your job is to give, you know, you haven't defined the boundaries between the core function and the non-core function. And then you haven't defined really when the non-core function is and isn't protected. So let me give you an example of the porousness of the boundary, which goes to one of the examples that hypotheticals that people keep throwing around. Droning your political opponents, calling out SEAL Team 6,

right? On the one hand, you can say, well, wait a minute, that's a core presidential function, commander-in-chief of the military, totally core, right? On the other hand, you can say, well, wait a minute, Congress regulates the conduct of war, the Uniform Code of Military Justice, right? They have all kinds of functions in regulating the military. So it's not core, it's in this second basket. So I don't even know the answer to that, which basket that is. If Biden were to call out a drone strike on Donald Trump, is that absolutely immune or is it merely presumptively immune? I honestly don't know the answer to that.

Even if it's presumptively immune, there then are still a lot of limits on evidence gathering the presumption, you would have to show that the prosecution of it poses no risk to, you know, the legitimate exercise of executive authority. So the final basket is personal conduct, which is not immune. Now, we know this includes, for example, sexually harassing an Arkansas state worker before you were president. But what the line is while you're president between the personal and the official is completely unclear. And the court gives very, very little guidance about that. Stealing from a CVS feels like that's definitely a personal act. But, you know, stealing from the Treasury, maybe not. Court seems to entertain consulting with state officials about the integrity of an election,

i.e. an official act? Or is that your conduct as a candidate trying to corruptly get a secretary of state to change the outcome? I thought I knew the answer to that yesterday morning. I don't know the answer to that anymore. And by the way, neither does anybody else. And then finally, the court takes this additional step, which I think is really the most mind-boggling, which is that you can't use, it's not merely that you can't charge the conduct, you can't use the conduct as evidence of something else. So, you know, it'd be one thing to say, okay, you can't charge him for leaning on Mike Pence, because that's somehow official, though I don't understand how, and it's presumptively immune. But you can use the evidence that he did that as evidence that there was some kind of corrupt slate of electors scheme going on. They say, no, you can't do that.

You know, Amy Coney Barrett, who joins for much of the opinion, jumps off the bandwagon for that. So that's sort of an outline of what they did. Okay. I want to go a little bit deeper on these Trump hypotheticals in a second. But first, I want to listen to President Biden's response in a four-minute teleprompter address from the White House last night. The outset of our nation, it was the character of George Washington, our first president,

to find the presidency. He believed power was limited, not absolute. And that power always resides with the people, always. Now, over 200 years later, today's Supreme Court decision, once again, it'll depend on the character of the men and women who hold that presidency that are going to define the limits of the power of the presidency, because the law will no longer do it. I know I will respect the limits of the presidential powers I have for three and a half years, but any president, including Donald Trump, will now be free to ignore the law. I concur with Justice Sotomayor's dissent today. She hears what she said.

She said, in every use of official power, the president is now a king above the law. With fear for our democracy, I dissent, end of quote. So should the American people dissent. I dissent, end of quote. So should the American people dissent. I dissent. The president and Sonia Sotomayor obviously falling on the more alarmed side of the discussion here, but it seems to me that everything that he laid out there on substance is pretty reasonable. Yeah. So again, as I say, the description of it as king is a little bit overheated in the sense that kings are hereditary, right? There are other features of monarchies. But the point is not wrong. Being above the law.

Being above the law, knowing that you wield the entirety of the executive power of the United States, and you can't be prosecuted for violating the law. He's absolutely not wrong about that. Justice Sotomayor is not wrong about that. And I thought his statement last night was excellent. And I thought the subtle point that he made by saying, I know I will respect the limits of presidential authority, that that respect is now voluntary, you know, and that you're purely relying on character as the check, because the check is not that we'll fucking prosecute your ass after the fact. The check is not that we'll impeach you because, by the way, the president will always have, you know, enough votes in the Senate to prevent impeachment from being meaningful, at least in this political environment. And so the check is

your character. And I do think that's a good theme for him. You know, whether it overcomes other impediments with which you're more familiar than I, I don't know. Well, good thing that we don't have the person with the worst character in the entire country as the leading candidate to be the next president since character is the only check. Can we just do a one minute sidebar before we get back to the Trump trials? I just want to do a one minute sidebar with you. Sure. I agree with you. The substance of that, the president's statement was good last night. He has some new bronzer, it looks like, but that four minutes was the only time that he was public in the past 48 hours. My alarm, as people know, is, is extreme as a political matter, literally more than as like a functional

matter of the government. So, you know, I'm just quizzing people. So on the scale from me, extremely panicked about, about the situation that we're in politically to the Biden campaign, which says that he's, he's vigorous, and there's no problems here. Where do you fall on that scale? I'm less temperamentally inclined to panic than you are just as a you know matter of sort of baseline anxiety i think but i'm this is true this is true me and my brother i said to other people when we're talking about our sports teams it's like you know you have a good quarter and i'm like we're winning the championship and you have a bad quarter and i'm like we need to trade everybody so i i do i do recognize that weakness in my temperament that That said, things are pretty bad.

You know, I didn't say it was a weakness in your temperament. It may be a weakness in mine, because sometimes the situation calls for panic. Look, my analysis of the situation is not different from yours. During the debate, I threaded or whatever. I don't know what the verb is for that. I bleated that Joe Biden needs to reflect on his performance in this debate and then do the right thing. I stand by that. I became convinced during that debate that he should not be the candidate. That is not up to me. As best as I can tell from the DNC's rules, it is entirely up to Joe Biden.

If he chooses to proceed, I will support him and I will have the slogan, vote for the codger, it's important, or codgers, not criminals. Look, he came out of that debate having had the mask pulled off, and I honestly have doubts about whether he can win, and I have doubts about his performance capability. And so, yeah, I'm worried about it, very, very worried about it. And the sequence of that debate happening and then the Supreme Court ruling is a very stark sequence that we cannot count on the criminal justice process to create accountability for Donald Trump, either retrospectively or, God forbid, prospectively. And we cannot count, I don't think, on Joe Biden to responsibly assess his own limitations as a candidate. And frankly, I don't pretend to understand how this all interacts with his capacity as president. I'm willing to believe that he's wise and fine in private

settings. If that's what people who have been in those settings with him are saying, I don't really have an opinion about that. The fundamental duty is to win because the capacity of the other side for evil is so magnificent. So yeah, I would say I agree with you. But in a more somewhat low key way, I also don't have large numbers of people harassing me on Twitter about it. I can take the harassment, because I agree with everything you said. So that was a dark and measured sidebar. And I mean, my request is also I will be with Joe Biden. My request is simple, though. I would like for him to recognize that he's losing this campaign right now and to act accordingly. And being in hiding for 48 hours is not assuaging my concerns at all. It's exacerbating them. Can you think of a time when you didn't feel like you could be yourself? Like you were hiding behind a mask? BetterHelp Online Therapy is convenient, flexible, and can help you learn to be your authentic self so you can stop hiding. Because masks should be for Halloween fun, not for your emotions. Take off the mask with BetterHelp.

Visit BetterHelp.com today to get 10% off your first month. That's BetterHelp, H-E-L-P.com. This is an ad by BetterHelp Online Therapy. October is the season for wearing masks and costumes, but some of us feel like we wear a mask and hide more often than we want to, at work, in social settings, around our family. Therapy can help you learn to accept all parts of yourself, so you can stop hiding and take off the mask. Because masks should be for Halloween fun, not for your emotions.

Whether you're navigating workplace stresses, complex relationships, or family dynamics, therapy is a great tool for facing your fears and finding a way to overcome them. If you're thinking of starting therapy but you're afraid of what you might uncover, give BetterHelp a try. It's entirely online, designed to be convenient, flexible, and suited to your schedule. Just fill out a brief questionnaire to get matched with a licensed

therapist, and switch therapists at any time for no additional charge. Take off the mask with BetterHelp. Visit BetterHelp.com today to get 10% off your first month. That's BetterHelp, H-E-L-P, dot com. Back to the Trump trials of this. Sarah Isger over at the Dispatch wrote this, the Trump people and the left's court haters are hot to trot on this being a complete victory for Trump. The delay is undoubtedly good for Trump, but as of now, it looks like all but one of the January 6th charges will probably move forward. What do you think about that? I don't have any idea how she can purport to say that. I certainly hope she's correct. Chutkin, the district court judge in this case, needs to assess every allegation, perhaps fact by

fact, for immunity. And first of all, she's going to have to hear from Trump's lawyers about each and every fact, each and every paragraph of that indictment. There are going to be, I agree with Sarah, a lot of them that are not plausibly official but are personal, but there are going to be some of them that are in this muddy zone that are, you know, plausibly within the outer perimeter under as the court understands it. And those are going to have to, you're going to have to have a question about whether those can go forward. Then once you've done all that work at the district court level, which will take, you know, months, it's subject to immediate appeal before you go to trial. So,'re going to have another trip up and down the appellate ladder. So at the end of the day, she may be right, but without knowing what five of the six justices in that majority think of which facts are private and which facts are official, She's kind of talking out of her ear. And so is everybody else who's pronouncing confidently about this. Just to clarify, because you've already

mentioned this, the five of six, because Coney Barrett and the co-concurrents did speak specifically about the elector scheme and, you know, saying that she did not think that was included. Yeah, exactly. I think Coney Barrett has shown her hands about what's private and what's official in a way that the other five have not. The implications don't end with this case. People say, okay, the South Florida case is fine because it only involves post-presidential conduct. But remember, a bunch of the evidence of it involves the hoarding of those documents is presidential conduct and probably involves official acts that he will claim immunity for. The transfer to Florida, South Florida, right? I mean, like the literal transfer of the documents to Mar-a-Lago.

Yes, but also his packing of those boxes, his hoarding of that material, all took place while he was president. Finally, the Georgia case is largely the same conduct as the federal case. That's all on hold, but we're going to have a very serious set of implications for that if the case ever unlocks. And then the New York case, there are isolated facts in it that took place while he was president, including a presidential tweet. He will surely go and try to have that case overturned. The New York Times says he already has, although I don't have independent confirmation of that. So I think it has broad implications for a bunch of those cases. And that's not to say the sky is falling. It could be that those implications are very manageable, just based on the limited guidance

in this opinion. We just don't know. Okay. And so Trump then has obviously been bleeding. Just want to correct the record earlier. You don't bleed. Only Trump bleats. You send considered posts on threads.com. Okay. But he's been bleeding that this does absolve him of New York. And obviously, we're coming up.

We have sentencing in nine days. What's your sense on that? I think his argument in the New York case is quite weak, and I don't see any reason to believe that Justice Merchan will accept it. I doubt that the appellate courts in New York will accept it. It affects a very limited amount of evidence, and so the evidence that he can show prejudice as a result of this, I think is minor. That said, you could appeal to the U.S. Supreme Court after this goes up the New York appellate ladder. And again, who knows how justices will think about that. So I would say it's a very outside chance, but it's not a zero possibility. I do think Justice Mershon is likely to proceed with the sentencing. And one technical point, none of it absolves him. So when you're immune

from something, it doesn't mean you didn't commit a crime. If a diplomat from a foreign country murders somebody, they're guilty of murder. Our courts merely don't have the power to try them, right? And so I do think as a normative matter, when we describe this, we should always talk about the crimes he committed. The finding that he is immune is not a finding that he is innocent. It is a finding that the courts lack the power to adjudicate it. So just as a member of Congress who releases a whole bunch of classified information on the floor of the Senate, they still released classified information. They committed the crime. They have speech and debate immunity, right? I do not want to concede ever that if we have to drop a charge or two or

three or all of them from the January 6th case, he's still a criminal. That's a good point. Okay. I have one question about just how outraged I should be about this court and their actions and just kind of the plain absurdity of a couple of their decisions. And then I know that rapid fire isn't really your cup of tea, Ben, but we do have a couple of questions from our sub stack from our Borg Plus subscribers. But these two comments from Chris Hayes and Mona Charon just really stood out to me. Chris wrote, grimly hilarious to compare the textual foundation for disqualifying Trump for insurrection right there in the 14th Amendment and the foundation for absolute criminal immunity for official acts, which is nowhere to be found in the Constitution, despite explicit grants of other forms of immunity. Mona adds, trying to absorb the Supreme Court immunity ruling, POTUS is immune from prosecution for all official acts, yet the Constitution itself says presidents can be impeached for treason, bribery, and other high crimes and misdemeanors. And it explicitly says the president can be impeached and prosecuted. That is the thing that is like the most outrageous about this, right? And this is just on a strictly textual basis. This has been an absurd run of rulings. I completely agree. And it goes back a little further than that.

It is very hard. And I say this as somebody who I am not a particular critic of conservative judging as a, there are a bunch of judges on that court, conservative judges whose nominations I supported. I am not a hair on fire person about the courts. It is very hard to look at this string of rulings and not see that the textual fidelity of the court is directly dependent on who is the president. And I'm just not going to spend time trying to square the circle anymore. The Constitution says Donald Trump is disqualified from further office and trust, and it does not say that he is immune from prosecution. And the court finds the former point not to be in the constitution, though you can read it. And the second point to be in the constitution, though you can't. Fucking outrageous. Okay. Let's go to the sub stack questions. First,

can Congress change the law to establish limitations that the Supreme Court doesn't create? Is there anything that Congress, and it's a Republican House right now, so, but hypothetically, is there anything that Congress could do to deal with this? The answer is no. If there's a presidential immunity that's found in the Constitution, the president is immune and Congress cannot remove that immunity. Related to that then, and you mentioned earlier that the likelihood of a president getting impeached and convicted in this political environment seems to be basically zero.

But hypothetically speaking, if Congress impeached and convicted, does that open up prosecution for all acts covered by immunity? Apparently not. And again, this is notwithstanding what the Constitution appears to say in the impeachment judgment clause, which is that I don't have the clause right in front of me, but that the president shall be liable post-conviction in impeachment to prosecution in the ordinary course of law, right? It's something that's very close to the language. And notwithstanding that language, so Trump's argument was he can be prosecuted for anything that he was convicted of in impeachment. But the court's argument is, no, you can impeach

him and remove him, and you can still prosecute him, but you can't prosecute him for the official acts subject to the caveats about that it's just i just i'm sorry i just have to laugh just thinking about macabre laughter is the only thing that you can do in these situations just thinking about fucking mitch mcconnell you know talking about how he was not going to convict trump because he could be the law was going to take care of it and now we have the conservative Supreme Court saying that the law can't take care of it. You know, it's just... You can't impeach him because he's out of office and the law should take care of it in criminal prosecution. And you can't prosecute him because of immunity, or at least there are serious limits on your ability to prosecute him. It's just Calvin ball. Did you ever read Calvin and Hobbes?

It's just Calvin ball all the way down. Calvin just gets to change the rules so that he wins no matter what happens. But you're allowed to declare, you know, Hillary Clinton a criminal by pointing your finger at her, right? Lock her up. Yeah. All right. Here's a couple more subset questions.

Can King Biden do anything now to stave this off and help stop King Trump? There's some people that want you to give Biden some Machiavellian ideas. Well, I mean, he basically announced last night that he wasn't going to do that. He said in the speech, I will respect the limits of the presidency. Some of us don't think that should be a voluntary thing. So the answer is he won't, nor would I urge the president to behave like a dictator. I would urge him to behave like a candidate. Same. That's exactly where I am. And I've continued to have nothing but respect for Joe Biden and the way that he's handled himself in

the face of all these attacks on his family and extrajudicial efforts by his opponent. And by continuing to abide by the norms, it is admirable. But he also needs to take seriously the threat. And that reflects on his candidacy and the choice that's coming up. Why did the court feel like they had to rule on this so expansively when there's never been a problem of a president being pursued for official acts in the past? I think that's a profound question, and the answer is completely unintelligible to me, which is one of the reasons that I did not see this opinion coming. Despite the oral argument, this opinion is kind of like if you take all the worst questions,

the most suggestively bad questions that every justice asked, that's this opinion. And I really did not believe that was going to happen. The reason is exactly the rationale behind the question, that there was no reason to do this. The last one, it's not the last one. We have many, many great questions from you. We have great Bullard Plus subscribers, but I did my best to pick out ones that we could do quickly. But the self-pardon issue, which we've mentioned a couple of times in past episodes,

but now this question is, if a future President Trump committed crimes that were clearly unofficial acts, couldn't he just self-pardon since pardons are official acts and nobody would have standing to bring up that challenge? So look, I have always taken the view that the court would never tolerate a self-pardon. I will not say that today. And yes, the consequence of a self-pardon, it would be hard to review as a general matter. The only party withstanding to challenge it would be the Justice Department in the next administration could try to bring a case. You plead the pardon. The Justice Department contends the pardon is invalid. The problem in this situation is that

if Trump gets elected and he makes his case go away, and he would probably do it administratively, not by self-pardon, then the case is over. I think you should all just get used to the idea that if Trump gets elected, these cases are going away. By one means or another, they're going to disappear. But yeah, we have a question now. A lot of the underlying conduct can't be prosecuted, and some of it can. And there's an open question about whether the president can pardon himself for it. Okay, I said that was the last question, but we have a little breaking news item here. The Manhattan DA's office said Tuesday it would not oppose Trump's request to file a motion arguing his conviction should be tossed, a move that will almost certainly delay Trump's sentencing.

This guy's the luckiest son of a bitch in the world. I don't know if you have anything on that. So I'm not sure why it would delay his sentencing. Maybe it will. As I say, I don't think that motion is going to be particularly strong. So maybe it delays it by a couple of weeks or so. But I do think Trump is going to proceed to sentencing. Ben Wittes, thank you. What a pleasant report that was from the hammock. Yeah, isn't it? So tell me, is your world the political world or my world the legal accountability world, which is darker?

I think it's a really close call and it's something that i'm gonna i'm gonna have to marinate on uh between now and our next get together before i can give an official answer of the two the merger where they crash into each other is really dark creating one of these horrible monsters like from transformers or he-man or something that combines like the two evil powers into one super monster anyway ben with us uh thank you very much okay up next i'm going to give a very brief update on the campaign side and then we're gonna have steve shep stick around you all right so we're gonna get to steve shepherd here i want this to be an informational episode

uh you know both about the court and about what a brokered convention could look like tomorrow. You know, we're going to get more into the implications, but just to lay the groundwork for why I think this is a worthwhile conversation to keep having. As I mentioned with Ben, I think there are legitimate questions about why Joe Biden has not been out more, why he's not taking any questions. He's not done a press conference. He's not done anything to assuage concerns about the debate besides teleprompter speeches. That is totally unusual. And so I think that leaves open questions about what's to come. I think another thing that leaves open questions is some big name Democrats are starting to speak out a little bit.

Jamie Raskin did. Senator Peter Welch said he criticizes the campaign for the dismissive attitude towards people raising questions. Senator out of Vermont, Tim Ryan, former congressman and former Ohio Senate candidate, endorsed Kamala Harris. Then we have Senator Sheldon Whitehouse, Democrat out of Rhode Island, said that he wants reassurances after the debate that the president and his team are being candid with us about his condition, that this was a real anomaly, not just the way he is these days. That's a pretty serious comment. And another thing I've been hearing is that there haven't been a lot of private conversations between Joe Biden and leading Democrats, like you would think. Democratic House member Mike Quigley said Biden

has to be honest with himself about whether he should be the party's nominee. And also, as we're taping this, we have breaking news. The first Democratic elected official to call for Joe Biden to drop out is a House member, Lloyd Doggett, out of Austin. He says that President Biden has continued to run substantially behind Democratic senators in key states, and he trails Donald Trump. I'd hope the debate would provide some momentum to change it. It did not. Instead of reassuring voters, the president failed to effectively defend his many accomplishments

and expose Trump's many lies. So Lloyd Doggett, the first Democrat to call for President Biden to drop. So these are elected Democrats are starting to speak out. And then as far as the polls are concerned, and there's a Pennsylvania poll yesterday that showed Biden losing to Trump by four on the same poll. Bob Casey, the Democratic Senator, was winning by four, an eight-point gap. In New Hampshire a state president biden won with 52 percent of the vote last time poll showed him losing by two points 44 to 42 a 10 point drop and then i don't really love the harvard harris poll because mark penn does it and he's a hack but um it has trump up by

six so that context i think reflects the fact that there remain very real concerns if we want to beat down Trump and deal with the threats that Ben Wittes just laid out, that there has to be a change, of course, maybe with Joe Biden, maybe without Joe Biden. And so I want the next conversation to talk about what it would look like if there was a move to a different candidate. And with that, I'm here with Steve Shepard, an old friend, a fellow GW Hoops superfan. It's been a rough decade for us. Senior campaigns and elections editor at Politico. Also, he's our chief polling analyst.

We're not going to be talking Atlantic 10 basketball today, unfortunately, Steve. Actually, that might be fortunate, given, like you said, the sad state of affairs over the last eight years or so. I mean, I don't know. The state of affairs for GW basketball has been bad, but is it as bad as the Biden campaign's state of affairs? I guess that's a close call these days. So I wanted to talk to you because we've been having these discussions in the bowl where, okay, if Joe Biden can't do it, then what? These if-then conversations. And some listeners, some people have wanted to hear the practical, what this looks like, you know, rather than just sort of wish casting and fantasizing. So I wanted to talk to you about

this because you've been covering conventions and delegates and politics campaigns for Politico. And I think we're out with the first story about like what would happen if like literally before the debate was even over, it felt like your story was out. So I figure you could get our folks up to speed. Does that sound good? Yeah, no, that sounds great. And I think for a lot of folks, certainly it was the case here in our newsroom. I'm going to back office here in the Politico newsroom. But we were all here last Thursday night. And about halfway through the debate, when we had that first commercial break, that's when, you know, all of our editors gathered and sort of decided that, you know, people might be interested in what the mechanics are at this stage when all

the primaries are over and all the delegates have been awarded and pledged. How does it work if the presumptive nominee didn't want to be the actual nominee? Exactly. So I want us to start with that with the basics. If Jen Psaki was on and having a heated disagreement with my colleague Bill Kristol on this week on Sunday, where her side of this case was that it would be very, very messy. And Bill was thinking the case that was like, maybe not necessarily. I sort of leaned towards the Bill side of that argument, but I wanted to play it out. So if we go through the basics here, we should just start with the first assumption is that this means that Joe Biden decides that he's going to back out and give his delegates up, right?

Because there's not going to be like a challenge to Joe Biden on the floor, right? No, keep in mind, Joe Biden won about 95% of the delegates during the Democratic primary season. Uncommitted got a few. You may recall Jason Palmer winning the caucuses in American Samoa, he got a couple. But Joe Biden, the vast, vast, vast majority of delegates are not only pledged to Joe Biden, but it's been the Biden campaign and the state parties who have selected the individuals who will actually serve as these delegates in the roll call vote. And, you know, a lot of times these folks are selected for

their loyalty to the party and their loyalty, you know, in the case of the Biden campaign to the president. So the idea that this could happen without President Biden agreeing to forego the nomination, it's pretty fanciful. Who would have thought Jason Palmer, potential power broker with his eight delegates, whatever he has. All right. So let's say then that Joe Biden makes his choice of his own volition. Then the next question is, is it an open convention? Can he just pass the delegates over to Kamala? How would that work? Like, let's say they tried to do it clean. Could he just pass his delegates to Kamala? Or could he pass his delegates to another person? Well, first, let's define the terms here. When I talk about delegates being pledged, there's a key distinction between the way Democrats do their convention and the way

Republicans do theirs. On the Republican side, the delegates are not pledged, they're bound. And that means they're required to vote for the candidate to whom they're bound via the results of the primaries or caucuses in their state or their congressional district. And if they try to go rogue and vote for somebody else, the votes don't count. On the Democratic side, delegates are supposed to, according to the DNC's bylaws, are supposed to, in good conscience, follow the instructions of their pledging, but they're not required to. Again, the kind of mass revolt that Joe Biden, you know, dragged kicking and screaming, you would need a majority roughly of those

delegates to vote against him. It's not going to happen. However, you know, these are folks, there is no instruction if the candidate to whom they're pledged is not placed in nomination. So Joe Biden endorses somebody. It's just, it's like, that's Joe Biden's endorsement. I mean, but maybe people could say, okay, I don't really, if you've dropped out, I don't care about that. Someone else throws their hat in the ring. They could say that. However, again, these are people who've been selected for their party loyalty, for their loyalty to the president. And so you would need of those roughly 3,900 delegates who have been pledged to Joe Biden, you would need about 1,900 to 2,000 of them to vote

for a candidate other than presumably he would endorse Kamala Harris under basically any possibility he would endorse Kamala Harris. And so you would need a majority of them essentially to shun his endorsement and vote for someone else. And if you got that on the first ballot, then you would have what we would consider sort of a brokered convention, the subsequent ballots to try to identify a nominee, you would bring back and we can we can talk about this a little bit. The superdelegates folks who were around in 2016. And in years before, we'll remember that concept, there have been some reforms to the DNC process since 2016, that has taken away these

people's vote in the first round of balloting. But if no one wins a majority, they get to vote for whomever they want on the second ballot and could be potentially decisive if we ever got to that point. And for folks who aren't getting a little gray hairs on their temples like you and me and don't remember the great superdelegate debate of 2016? Remind folks who the superdelegates are. So they're elected officials within the party, members of Congress, governors. They are members of the Democratic National Committee. They are former elected officials, former presidents, former vice presidents, former party leaders,

former congressional leaders. Luminaries. It's luminaries. So if it goes to a second ballot, the luminaries, it becomes not just about the real American delegates, but it becomes the, you know, these superdelegates as well. Right. And there are about 4,000 pledged delegates. And then there's another, there's no like publicized list of these people, but most estimates have it around 700 or 800 of these superdelegates. And so, you know, they, they alone can't decide the nominee, but they can certainly be decisive in a close vote if we ever got to that

point. So I'm with you. I think the kind of dealing with anything besides Joe Biden, I mean, Joe Biden leaving at all might be fanciful, but if you were to leave Joe Biden doing anything besides endorsing Kamala seems, seems farfetched to me but let's say that he doesn't let's say that Joe Biden says he's going to you know drop out of the race and that he thinks that you know there should be an open conversation among the delegates about who should replace him now I've seen some reporting that in that case Kamala still gets Joe Biden's operation, which would include the money, the staff. Is that right? And Kamala is the only person that could get access to that? Yes. The Federal Election Commission has pretty strict limits over how much money one candidate

for federal office can give to another. So we had just today, the Biden campaign assert with the Democratic National Committee included. So this is an aggregate number that DNC money would be available for any future candidate, no matter who it is. But there's a lot of money in Joe Biden's presidential campaign. There's a lot of money in his joint fundraising committee that it's over $200 million as of the end of June, according to the campaign's announcement just shortly after the quarter ended. There are limits on how much one federal candidate can donate to another, but Kamala Harris is on the paperwork as the running mate and as the vice presidential

candidate for the Biden campaign, and so she could get all of it. Other candidates, the amount that you could transfer would be a very, very, very, very tiny fraction of that. So they would essentially be starting from scratch unless they were an existing candidate for federal office that maybe had some money left over, like a Senate candidate who might have a few million in their account. Whoever it is would essentially be starting from scratch when it comes to those hard dollars that the candidates will use largely on television advertising, which they can buy at a much cheaper rate than the outside spending. It would be very difficult for outside groups to sort of make up that difference because they pay five, 10 times more for the same TV ad that you might see on TV. If it's from a super PAC, they're paying a lot more to show that to you than if it's from a

candidate themselves. So this is the one area when I've been hearing feedback from people. It's like, Tim, we can't do this. The convention chaos is a problem. The ballot is a problem. Maybe I want to get to that next. The money is a problem. The money is the one area that I'm like a little, I'm not that concerned about that. I'm not impressed by that as a potential problem. And like I said, I think Kamala is likely the choice anyway. And so she would be able to have, you know, the entire war chest. But if somehow they came to a different type of candidates, I know it would just be so much interest and so much excitement. I like the ability to raise money. And we've seen from Democratic candidates, you know, there'd be a week or two lag, but most of that week or two,

there'd be wall to wall coverage of this insane, unprecedented thing happening that everybody would be seeing for free anyway. So I don't know. Do you think I'm being a little Pollyanna about that? No, I don't necessarily. I think it's so unprecedented that I'd hate to be the person in charge of the ActBlue servers if that ever came to pass, because we do know and have seen it since 2017, the fear that a lot of small dollar or online Democratic donors have when it comes to Donald Trump, both as president or as a presidential candidate, has been an extraordinary motivator for Democratic fundraising. That's been abundantly clear from January 20th, 2017 until now. We've never had this kind of scenario where everything would be sort of spun up right from scratch. And it seems clear to me that even as there's been some fatigue among longstanding office holders and the money they're able to bring in now compared to what

they were able to bring in in, say, 2018 or 2019. The reality is that, you know, everyone, whoever gave on ActBlue would be coming to whoever this new person is, as long as it was someone who excited them and excited the party. I do think that's true. I think it would break a lot of records for fundraising in that moment. But also, remember, the person will be starting from zero. And so you'd have to even remotely be competitive with the Trump campaign, which is actually doing a much better job of fundraising over the past couple of months than than before, and seems to actually be able to raise money that doesn't go entirely to legal fees. Now, I'm of the view that TV ads in presidential campaigns have pretty minimal impact compared to other races at this point. I mean, Joe Biden has outspent Donald Trump on the airwaves by lots and lots already to basically little effect, hopefully little effect, actually,

because if it's been to significant effect, that means he's losing by even more without the ad advantage. So I want to get to the ballot part. But but just really quick, going back to this convention chaos question. So if Joe Biden drops out, if he endorses Kamala, I assume it'll be pretty clean. But going back to your question, let's say other people throw their hat in the ring. I mean, have you had conversations about what that looks like? Like, could they, I don't know, like, have a debate, have a forum? You know, do they go to these states and meet with the convention delegates? I mean, I guess there's, you can't really do reporting on this because if it would leak,

if Gretchen Whitmer said that she was already planning how she was going to go meet with the Texas delegates, but like, what do you imagine that could look like? Well, I imagine it would take place under a very compressed timeline. We're all thinking about the convention as this thing in Chicago in late August, but the reality is, that the Democrats have said they're going to use a virtual roll call to choose their nominee very likely sometime this month in the back half of July. That roll call could be as early as Bloomberg's reported July 21st. I'd heard maybe something the week after instead. But we're talking about, you know, three, four weeks tops from now. And it would happen all virtually, which would kind of, for some Democrats worried about the like, shades of 68 or, you know, convention floor chaos, either on the floor or outside the convention

hall to use the 1968 example. I'm not sure that that would come to pass because theoretically under this scenario, the nominee would be chosen in this virtual roll call, even if it got messy, even if it required multiple ballots. And then the convention the following month could still be this television show that is a big show of unity, the whole party coming together to the extent the Democratic Party can ever come together. That would still be the case. In terms of what the three to four week stretch would look like, you know, I think certainly you would see the veil lifted on what some of these other folks might be doing. Right now, you know, I personally think what they're doing is mostly about positioning for 2028. You want to be seen as a good soldier for the party at when the party needs you most, showing up, not shoving the old guy out the door.

And if the old guy decided he wanted to leave, you know, there you are in addition to that. So it kind of serves two purposes to me, probably 95% about 2028 and 5% about the break glass in case of emergency scenario. Yeah, no, the Zoom roll call has been really lost in a lot of these conversations as one of my favorite listeners keeps texting me because especially in the Kamala scenario, like in theory, there could be a clean pass off, you know, where the delegates choose Kamala by essentially acclimation in the same Zoom, you know, convention roll call that they were planning on having anyway because of the ballots and you know like you said like that that would eliminate all of the messiness now that who knows right like once you like open a pandora's box like this you know somebody else

might say well wait a minute i want a challenge and then how do you do a zoom ballot you know where there's multiple candidates right like you know not, I think, is an important point here, particularly if it's the vice president. Yeah, and the typical sort of movement of candidates from hotel suite to hotel suite to woo the various state delegations that we've all read about. Certainly, you and I are not old enough to have experienced that. The campaign trail, I'm thinking back to old days.

Making of the president, 1972 like all of that stuff you know that would take place via phone and zoom and it'd be very very sort of 2020s era for sure okay so then let's talk about this the ballot side of things so the reason why they're doing the zoom roll call is because of the Ohio state law, I guess, about when the candidates need to file by, which is before when the actual DNC convention is. The Democrats aren't going to win Ohio. So in some ways, it's kind of a meaningless point if they do have to extend it past. So my question is, what about these other states? There's been some discussion that Heritage is going to sue and thinks that they might have standing in, I think it was Nevada and Wisconsin, maybe one other of the swing states that might actually matter. What's your sense for the ballot side of things? Well, look, I think that's also one

reason why sort of time is of the essence, because, you know, we have like in-person early voting starting in a lot of these places in early to mid-September, which seems sort of crazy early, especially if there is a new candidate who needs to introduce themselves to the broader electorate. I think this is something I'm sure that the Democratic Party has many lawyers who will make sure that before they were to ever approach this scenario, that they would have all the boxes checked in all the states that matter. You know, Ohio, you mentioned, yes, Joe Biden or whoever the Democratic nominee is likely to be, is not going to win Ohio. However, you know, Democrats very much need Sherrod Brown

to win his Senate race. You do worry about tamped down enthusiasm, I guess, if you're not on the ballot. Yeah. And then there's Marcy Kaptur, Amelia Sykes. That's a fair point. Greg Lansman, you know, some of the competitive congressional races. And they want to keep Republicans from sort of that filibuster proof majority, super majority in the state legislature. So, you know, there's more to worry about there. Look, you know, I think if this were to ever come to happen short of an incapacitation scenario, I'm pretty sure they would have all the legal boxes checked before they tried it. All right. Last question is on the vice president side of this because I haven't seen a lot of discussion about that. So let's say the clean option happens and Joe Biden, you know, clean. We're in really strange times, relatively clean given the situation, where Joe Biden chooses to leave the race, endorses Kamala Harris.

She wins on the first ballot. Can she then pick her vice president? Or are we in a 1972 situation where multiple people put their hat in the ring and the delegates pick the vice president? Ultimately, the delegates pick the nominee. The delegates pick the vice president? Ultimately, the delegates pick the nominee, the delegates pick everybody. Obviously, you know, in modern times, the delegates have deferred to the nominee's choice of running mate. You know, there's a couple different scenarios here. Does Kamala Harris keep nearly all of the Biden delegates because they're loyal and, you know, they go along with whomever she wants to choose, probably somebody among the group of folks that we're talking about

in this sort of shadow primary? Or is it a closer race? Is it she's only getting between 50% and 60% of the delegates, and some of those delegates would seek as a negotiating tactic or negotiating position a specific running mate that maybe you could grab the Michigan delegation by promising to choose Gretchen Whitmer as your running mate, or maybe you could grab the Kentucky delegation by promising to choose Andy Beshear. The one person that would kind of take off the table would be Gavin Newsom,

because of course then a Harris-Newsom ticket would make Democrats ineligible to win the 54 electoral votes from California. And there's just very little way to make up that kind of math when it comes to the electoral college majority. So, you know, I think that that could be someplace where the delegates were to have some sway. Ultimately, you know, unless it's a super, super contested convention for the actual presidential nominee, it's difficult to imagine a wide open race where the delegates are choosing and ignoring whoever the presidential nominee's preferred running mate is and just choosing someone on their own. I'm having lots of conversations with Democrats. Any Democrat that will talk to me, I accept their phone calls these days. But somebody suggested a little Roy Cooper. We could use somebody with a Southern accent, a good old boy on the ticket. I don't know.

Maybe the North Carolina delegation could help us with that. Anyway, Steve Shepard, that's been super helpful. Thank you for the briefing. Keep up the good work over there. We'll talk to you soon, brother. Raise high. You got it, Tim. Good to see you. All right. Keep up the good work over there. We'll talk to you soon, brother. Raise high. You got it, Tim. Good to see you.

All right. Thanks to Steve Shepard. Thank you to Ben Wittes. It was a pretty depressing show. I don't know that tomorrow is going to be a ton better, but there will at least be some laughs because I'll have your friend in mind, Crooked Media's John Lovett.

One problem, despite the fact that John was recently on Survivor, he still needs his beauty rest. So the show might be out a little bit later in the afternoon. That's all right. It's a long weekend. And so stick around, refresh your little podcast app. You'll see me and John tomorrow late afternoon. Peace. a while to be there in velvet yeah

to give them a smile it's good to get high and never come down it's good to be king of your own little town yeah the world

would swing Or if I were king Can I help it if I Still dream time and time It's good to be king and have your own way Get a feeling of peace at the end of the day When you pull dark bars and your canary sings, you're out there with winners. It's good to be king.

Yeah, be king when dogs get winged. Can I help you to find still dream time to time? The Bullwark Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.