The Bulwark Podcast - Ben Wittes: Jack Smith at Ramming Speed

Episode Date: February 16, 2023

Mike Pence is erasing his own profile in courage by trying to resist special counsel Jack Smith's subpoena, a Mar-a-Lago document prosecution is still viable, and Ben Wittes — who once challenged Putin to a fistfight — is still irritating the Russians. Wittes joins Charlie Sykes today. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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It is February 16th, 2023. Is it safe to look up yet? I don't know. I mean, there are major issues facing the country, including the prospect of adding $19 trillion to the national debt. And yet I hear that the president is about to address the nation about UFOs and stuff in the sky that we're shooting down. I just don't know. So welcome back to Ben Wittes, editor-in-Chief at Lawfare. It's been a long time, Ben. How are you? I am great. I have no complaints that anybody wants to hear. And, you know, unlike some people, I am unpanicked about unidentified aerial objects over your state. Yeah, I have never been panicked by these

unidentified flying objects. So if I am correct, you are sitting in a hammock right now in Washington, D.C.? I am. I want to set the scene. And you're wearing one of your many dog shirts, which of course is appropriate for the author of Dog Shirt Daily sub stack newsletter. Correct. I try to only wear dog shirts. There are certain occasions now where a dog shirt is not considered appropriate business attire. So I'm not dogmatic about it. But on a normal day, I will wear a dog shirt. And I think I'm the first person to wear a dog t shirt on MSNBC. Certainly on this podcast. Yeah. Yeah. And this I'm the first person to wear a dog t-shirt on MSNBC. Certainly on this podcast, yeah. Yeah, and this is not the first time I've worn a dog shirt on this podcast, but you can't see me on the podcast.

But at the beginning of the pandemic, when I realized that it was going to be a kind of long thing, it wasn't just going to be we're going to be off for two weeks. I decided if I'm going to spend the next two years in a home office or the next, I thought it would be like three months, I'm getting a hammock for my office. So I got a hammock and I have been using it for business meetings ever since. So I have to ask, so how many dog shirts? I think I have about 30 dog shirts now. I also have started a program at the Brookings Institution where

any junior staffer at the Brookings Institution who wants a dog shirt and commits to wearing it to work, I will buy one for them. And so we have now three participating staffers who have requested to join the dog shirt program at Brookings. So, you know, the dog shirt revolution is coming, and people need to be ready for it. So you mentioned that you have events coming up that you might not be able to wear the dog shirt. See, this is the dilemma. After three years, I have something next week,

and I'm honestly kind of concerned, you know, whether or not I have the pants to wear, because I'm trying to think the last time I wore a suit or anything remotely like a suit. See, even when I do television, I may have a jacket and a shirt and occasionally a tie on from the waist up, but it's been a very, very long time that I've been having to be concerned about other things. And so, boy, I don't know. Pants were the first casualty of COVID. Yeah, right. Look, I think, you know, society has many options in response. One is the possibility that we could

all sort of, by mutual agreement, decide that pants are not part of business attire and, you know, they're generally under the table anyway. And so, you know, really what you wear to work should be, it really should be a waist up thing. And below that, it's really up to you, anything from sweatpants to shorts, I suppose, for those who were into that sort of thing to very little at all. But, you know, just the idea that I think if the pandemic has shown anything, it's that the lower body is really unimportant to most people's professions. Well, certainly to ours. Yes, particularly to ours. I mean, it's a little bit different if you're a professional skier or an only fan star or you play World Cup soccer or something.

Then, okay, lower body probably matters a little bit more. But for those of us who talk, that happens in the upper body. And right, that's kind of an arms thing. Your pants really shouldn't matter. And so I think I'm going to be looking forward to your Paul Ryan event, Charlie, and I'm hoping— I will be wearing pants. You will be wearing pants? I will, yeah.

I don't want to mislead anybody that there's going to be any alternative there. I think it would be the appropriate show of respect to the former Speaker of the House if you showed up in shorts. Yeah, no. See, there's also the weather-related problem. In Wisconsin, you can wear shorts until it's about 20 degrees out, but below that, it becomes a little bit crazy. And so you're sitting in your hammock in Washington, D.C., and it's about 70 degrees. I am sitting here in Mequon, Wisconsin, and we're expecting six to 10 inches of snow later today. And so shorts would be inconvenient and inappropriate. Although I have to confess that I don't know

whether people think this is weird, but I actually look forward to snow blowing. I do not mind snow blowing, but I have to wear pants for that. I just want to make that clear. It really makes a statement if you blow snow with no pants. Oh, there'd be a lot of statements, let me tell you. Exactly. Anyway, the point is people should get on the dog shirt bandwagon and, you know, just accept that eventually, you know, if you're not wearing a kind of protuberant dog shirt with a snout that's kind of leaping out at your interlocutors, you are going to be considered fashion conservative. So just think about that for office attire.

You can see lots of dog shirts at Dog Shirt Daily. And I don't sell them, by the way. I have no financial skin in the game on the dog shirt thing. It's just a belief that the world would be a better place if more people wore dog shirts. It's not cheating if I have my own dogs on the shirt. No, no, no, no. So people are wondering, okay, Ben, Charlie, when are you going to get to it? Actually- This is all there is. We have had more substance and made more legitimate points than Nikki Haley's entire presidential run has so far. I just want to

make that clear. Okay. We have a lot of things to talk about. Unfortunately, we're going to have to do a little bit of legal heavy lifting. A lot of things going on today. The Meadows subpoena, Mike Pence confirming that he's going to fight the subpoena on some bizarre grounds from the special counsel. We have not yet seen it, but the grand jury report from Fulton County, Georgia is going to be coming out. We're going to talk about that. I want to update folks on what you're doing with Ukraine.

But could we just take a moment to talk about Nikki Haley? Exciting, telegenic, charismatic. And doesn't know anything about kicking people. She had that whole thing about heels, and they're not a fashion statement. They're for kicking things out of the way. I've done taekwondo for many, many, many years. I know something about kicking. Heels do not help on the kicking front. Otherwise, you would have more martial artists wearing them, right? The thing about kicking is it's actually impossible to do without standing on one foot. And any extra weaponry you get from having a spike on your heel is going to be completely undermined by the loss of balance that you have trying to kick while standing on one heel.

I cannot wait to hear Donald Trump make this point during the debate in New Hampshire. So here's my question about the Nikki Haley campaign. Can you actually run against Donald Trump without ever saying his name or raising a single issue with which you disagree with him on? She's kind of testing this out. I'm amazed I'm about to say this, but Sean Hannity actually asked for some pretty good questions last night.

Okay, just please, you know, save the comments here. So I only have one soundbite. This is the second soundbite. Sean Hannity asks her, and I, you know, save the comments here. So I only have one soundbite. This is the second soundbite. Sean Hannity asks her, and I think rather legitimately, can you name one issue you disagree with Donald Trump on? And she she she tap dances around and cannot name a single issue, not one thing. So amazingly, to his credit, Sean Hannity doubles back and asks her the question again. So this is the second opportunity he has for her to distinguish herself in any substantive way from anyone else who's running for president.

And here's how it went. Let me go back to my original question, though, because anybody that is looking or seeking a nomination, you're going to be comparing and contrasting your policy positions, your views, what direction you want to take the country with your competitors. Right now, there's former President Trump as the only other candidate for the nomination. We expect many others, maybe even Mike Pompeo was on earlier in the program today. Where do you see, if you see, policy differences beyond what you mentioned, which are generational differences? What specific policy areas would you say part with Donald Trump? Just name one thing. What I am saying is I don't kick sideways. I'm kicking forward. Joe Biden is the president. He's the one I'm running against. And what I'm saying is you don't have to be 80 years old to be president.

We don't need to have these same people going back again. We need something new. We need a new generation of fighters. We need people that understand whether you're American, you're average American is coming from, and we shouldn't be afraid to fight for that. And that's what I'm willing to do. I'm not going to kick sideways shouldn't be afraid to fight for that. And that's what I'm willing to do. I'm not going to kick sideways. I don't have time for that. That's not my focus. I'm kicking forward. It's all about Joe Biden. And it's all about the people in America winning again. And that's why we want everybody to go to Nikki Haley dot com, because we're in this to win. All right, Governor, we're going to be following, obviously, this race.

Oh, my, my, my, my, my. So she's really into the kicking, Ben. Yes, she's the Eric Swalwell of this campaign. Pass the torch. That's an interesting point because this was, you know, Eric Swalwell's whole thing was we need to pass the generational torch. And nobody even remembers that. Look, she had a pretty good day yesterday. Let's be honest about it.

She had a big crowd and everything. She's got the line. She's got the whole thing about the heels. You can't kick in heels, Charlie. You just can't do it. But how vacuous it is. This is a smart woman. How long is she going to be able to recycle the, I am not going to run on any issue. There is nothing that distinguishes me except for my age and my heels and my philosophy of kicking. That's it. Right. And also the fact that I am a minority woman from a southern state. I mean, I think a huge amount of the subtext of this campaign is show you're not a racist. We can show them that the Republican Party is actually not racist by putting forward me.

Yeah, well, I mean, that was a hell of an issue back in 2015, right? But maybe I'm excessively cynical here, but it's not clear to me that that is exactly what the Republican primary base voter wants to say about American politics right now. That doesn't seem to be at the top of their list. I agree with that. And I think that there's the fantasy Republican Party that Nikki Haley represents, which is, you know, a kind of conservative come-togetherness on the domestic side and a kind of conventional neocon foreign policy that pretends it is what it is even while it's fronting for Trump. And then there's the reality of where the Republican Party is, which has really very little to do with any of that. And it's not clear to me that there is a constituency for this. It's, you know, I think this was the presumed constituency

in 2015, but it turned out there wasn't really a constituency for it then either. At all. So I'm trying to remember the last time somebody launched a successful campaign that had no defining, distinguishing issue to it. Usually you have to have a rationale better than it's my turn or, you know, I am younger and female because what she's trying to do is to say that it's all about Joe Biden. And, you know, I've changed my mind about running for president against Donald Trump because Joe Biden is just so terrible. It just seems that, you know, at some point, if you want to be the leader of the free world, you actually have to, and this is kind of radical here, you actually have to lead. So then this is

the same problem that Ron DeSantis and anybody else is going to have. How do you run against Donald Trump if you're not able to say, this is where I disagree? And by the way, you mentioned something in passing there. There is a fundamental, or at least I think, you know, unless she's going complete Elise Stefanik on us, there is a fundamental difference between her and Donald Trump on issues like, for example, America's role in the world, including our support for Ukraine. I think, you know, Trump's made it very clear that he would cut and run and abandon Ukraine, whereas I haven't heard that from her. And yet, even on the issue of such moment as we're coming up with the one-year anniversary, she's not even willing to raise that issue. So what is the point of Nikki Haley?

Yeah, I think the point of Nikki Haley from Nikki Haley's point of view is Nikki Haley. I think the point of Nikki Haley from the voters' point of view is entirely elusive at this point. Look, I don't want to sell her short. She is a person of considerable talent. She was a successful governor. She was reasonably effective in her UN role. It is good that people are declaring candidacies and running because you don't want the only candidate to be Donald Trump and therefore for him to sort of stare down the rest of the field into not running at all.

So I do think it's a healthy thing that she's gotten into the race. That said, I can promise you few things in life. One of them is that Nikki Haley will not be the Republican nominee for president. Yeah, I think that's it. You know, I was actually thinking of, you know, what would the case for Nikki Haley be? And I couldn't motivate myself enough to write it. But, you know, as I was watching her speech and watching her video, I suppose one thing and I'm just throwing this out is that it might permit Republicans to sit back and sort of

take a deep breath and imagine what life would be like post-Trump. That there is life, there is a world in which you're not carrying that around, in which you don't have to defend this, in which you're not constantly wallowing in his grievances and his deceptions and his bigotries and everything that, gosh, you remember when Republicans could sound and look like this. So to the extent that she can play a positive role, it might be in at least opening the door to sort of encouraging the appetite for something different. It's not going to be her, and I'm not sure that it's going to be anyone like her, but at some point, you have to start putting a little bit of, you know, substance, meat on the

bone about, you know, turning the page, right? What does it mean to not have to live in Trump's world, you know, not have to obsess about his obsessions, not have to worry about his indictments, not have to worry about his lies. There's got to be a moment where voters are going, okay, I may not support her, but this doesn't feel terrible to me. Yeah, I'll make the case for Nikki Haley. If Nikki Haley could get the Republican nomination, the Republican Party would be a much safer, less dangerous party. Nikki Haley made a deal with the devil, and she has honored the deal, but she is not herself the devil. She is a perfectly normal, conventional 2015 conservative. And I think she is one of the people who, as you like to say, has engaged in turd polishing, but she is not the turd. it rather than a foil for Ron DeSantis and Donald Trump, you are imagining a much better place than the Republican Party actually is today. I don't have trouble making the case for her. I merely

have trouble imagining that case as remotely plausible. There were a lot of Nikki Haley's in 2016, and every single one of them walked away a completely diminished figure. Every single one. Every single one who ends up being something of a joke, whereas they walked into the campaign as a serious person. Remember, the slogan Jeb! was meant to be taken seriously. Yes, I do remember that. Let me just slightly disagree with you. You described her as a sort of, you know, normal Republican, you know, circa 2015. Well, the problem is that all of those normal Republicans have spent the last seven years being dipped in Trumpian mered.

And so they're not unchanged. They're not untransformed. And, you know, Tom Nichols wrote something very interesting in The Atlantic. He said, you know, Haley is a relatively centrist Republican, the kind who was at home in the old GOP. She's not going to lose all of her political moorings just because the base fell in love with Trump for a while. Is she? And then he goes on to say, allow me to remind you that Elise Stefanik exists. She was once the kind of Republican that Haley claims to be, but led by her ambition and

fueled by her liquid nitrogen cynicism, she has since fused herself to Trump, and it's paying off for her, obviously. To win in 2024, Haley and every other Republican candidate are going to turn into some version of Trump or Elise Stefanik or J.D. Vance, and this makes every one of them untrustworthy around the levers of national power. So he's saying, don't be misled by thinking that we can go back to 2015. Look what she's become. So I completely agree with that, but I don't think that point and my point are even intention. So what I would say is Nikki Haley has shown herself to be an opportunist willing to do all kinds of commerce with people and ideas that you shouldn't engage in commerce with at all. And I judge her very harshly for that. And if I could snap my fingers and make the Republican Party look more like Nikki Haley than it does, I would do that in a heartbeat. And I will say in her

defense, her compromises with Trump are nowhere near as awful as Elise Stefanik's. She has not trafficked in conspiracy theories. In the confines of the Trump administration, she was a relatively responsible actor. And so I take Tom's point that we don't want to put stuff past her in terms of where she might go. On the other hand, you know, if you said to me, would the Republican Party be a better or worse place if Nikki Haley were a viable candidate, I would say it would be a better place, which is why, by the way, I don't think she will be a viable candidate. Let's dive into the legal news of the day. The breaking story over the last 24 hours is that Special Counsel Jack Smith has subpoenaed Mark Meadows, the former chief of staff, both CNN and the Wall

Street Journal reported last night that they had subpoenaed Mark Meadows as part of the investigation into Trump's role in the January 6th insurrection. This subpoena predated a separate one for Mike Pence. So as a non-lawyer, we're both non-lawyers, but observers, this certainly does look like Jack Smith is moving at ramming speed or at least trying to wrap things up. These are the kinds of things that happen near the end of the investigation. But what is your read on the significance of the Pence subpoena and Mark Meadows subpoenas. So neither of them is remotely surprising. Both of them are consistent with, as you say, these are late stage subpoenas. These are the things that you do once you've collected all the information and you have

all the stuff that you're going to confront people with. In Pence's case, I'm quite certain that Pence is not a subject of the investigation. He's a witness. But in Meadows' case, I'm equally sure that Meadows is a subject of the investigation. I think you can assume that both of them will resist the subpoena. Meadows presumably on executive privilege grounds, which will fail, by the way. The law in the D.C. Circuit is very clear that the needs of the grand jury will outweigh the executive privilege claims in almost all relevant situations. Pence has apparently, according to Politico and some other publications, has a different argument he wants to make, which is that he is the president of the Senate and therefore

protected by the speech or debate clause of the Constitution, which is a provision that protects legislators against compulsory process. That is a slightly more complicated issue. I think at the end of the day, Jack Smith is likely to get testimony from both of them. I'm more confident about that on the Meadows side. And I do think we are heading relatively quickly toward a completion of this investigation. Okay, so let's go back to the Pence argument. Annie McCarthy, who is sort of MAGA-adjacent, a lawyer pundit over at National Review, thinks that Pence's argument is completely frivolous. He doesn't think that there's any grounds to it whatsoever, and that he appears to be laying the groundwork to explain to Republican voters that he took these amazingly extraordinary measures to try to avoid testifying about Trump, but he thinks it will backfire. I do think that to the extent that there is a

political calculation, that is Pence's, that he wants to look like he's drag kicking and screaming into doing it. But, and I've mentioned this on previous podcasts, I continue to be amazed by Mike Pence, who could be, you know, stepping into his legacy, his best moment, his greatest moment. And yet he, you know, at every single turn, he is politically, you know, wants to basically divest himself of the best thing he ever did and to downplay it, which is an interesting, you know, one of the patterns of this era about how people diminish themselves. You know, you would think that if you were Mike Pence, this is the moment where you stepped up and you defended American democracy. And yet, you know, he doesn't want to

embrace it. Right. It's like you erased your own chapter in Profiles in Courage. Exactly. I actually am going to outflank Andy McCarthy from the right on this. I don't think the question is frivolous. I think Pence is likely, but not certain to lose it. And actually, the legal scholar Josh Chaffetz at Georgetown, who's no conservative, convinced me on Twitter that I should take it more seriously. So Pence's larger posture is ridiculous, which is that he refused to cooperate with the January 6th committee on grounds of executive privilege, that he's, you know, an executive branch official. And now he's refusing to cooperate with the grand jury on grounds that he's a legislative branch official. Well, you can't have it both ways. That said, for purposes of

January 6th, that is the joint session of Congress, he is the president of the Senate. So the idea that that privilege might apply to him to one degree or another is not completely crazy. As I say, I don't think it's likely to prevail. I do think he's likely to end up having to testify. But it is an issue of first impression. And there are six conservative jurists on the Supreme Court. And so it may be a bit of a Hail Mary pass, but I don't think it's a crazy argument for them to make. And whenever you're writing on a blank slate, you should never be too dismissive of what somebody might write.

So didn't Senator Lindsey Graham tried to play this card? He tried to assert speech or debate immunity to avoid testifying in the Fulton County grand jury. And the 11th Circuit basically slam dunked it. They said that this applies to members of Congress and that the Supreme Court had warned that it shouldn't be extended beyond its intended who's actually a member of Congress, it seems really a reach for it to work for Mike Pence, who is not a member of Congress, but actually a member of the executive branch. So I am really having a hard time taking it seriously. Okay, so let me convince you, not that it will prevail, but that it will be an issue that is at least considered seriously.

So first of all, with Lindsey Graham, he was being subpoenaed about conduct unrelated to his legislative role, about material in which he was asserted to or believed to by Georgia state prosecutors to have intervened in Georgia's counting of Georgia's vote, right? That has nothing to do with your role as a senator. Now, the courts nonetheless said, hey, look, there's lots of things that they could ask him about that are outside of his legislative activity, and he's got to go testify about that. If there's stuff that invokes his legislative activity, he can assert the privilege in that setting. So they didn't say there's no privilege relevant here. They just said it's a kind of question by question thing. And if you're asking Lindsey Graham, tell us about the pressure you put on Georgia state officials to violate Georgia law. That has nothing to do with your role as a senator, so you can't assert the privilege over

that. On the other hand, presumably, if he got in the grand jury and they started asking him questions about legislative activity in his role as a senator, he presumably refused to answer those questions. And I think he would prevail on that. So the question, I think, for Mike Pence is, first of all, is being the president of the Senate for purposes of this hearing, this joint session of Congress, count as being a senator within the language of the speech or debate clause? And if it does, to what extent is some or all of the conduct Jack Smith wants to ask him about reasonably encompassed in legislative activity? Now, I think the answer is going to be he is not a member of the Senate for purposes of the speech or debate clause. But I'm not certain of that. And I would not want to be completely dismissive of this before Judge Beryl Howell and then the D.C. Circuit has a moment to the point that you made a few minutes ago, which is that if you put together the subpoena of Mike Pence, the subpoena of Mark Meadows, the fact that they're going after him, and maybe this is completely separate, they're going after Trump's attorney on the crime and fraud exception, that you do think that it's all an indication that Jack Smith is wrapping things up. Now, we don't know what he's going to do. I mean,

here's a caution that we ought to have learned a long time ago, that we do not know what charges, if any, will be issued. We do not know what the conclusion will be. But you do think, though, that we're reaching some sort of a conclusion, some sort of a recommendation to the Attorney General one way or the other on these various points? First of all, I don't think it will be a recommendation to the Attorney General. Under the regs, it will be a decision of the special counsel that the Attorney General will presumably be notified of and could, in theory, reverse. But as a practical matter, this is Jack Smith's decision to make. Look,

normally investigations proceed in two phases. You have an investigation phase, and the investigation phase always goes on for a longer time than people want it to. And then when the material is all collected, then you have a prosecutorial decision moment. And I don't think you're trying to bring Mike Pence or Mark Meadows before the grand jury unless you think you are nearing the point of decision. Now, that does not answer the question of what that decision is going to be. But I do think you're at a point where there are steps that are being taken that you would think of as the late stage steps in an investigation. Now, some of them are creating litigation. So there's litigation going on over Representative Scott Perry's phone. I don't think you're going to have an indictment

or a decision on indictment in the Justice Department, Jeffrey Clark matter until that issue is resolved, because you want to know what's on that phone before you make that decision. I don't think you're going to have a decision about any Trump indictment before they know if they can get Mike Pence's and Mark Meadows' testimony. The fact that the subpoenas are late-stage things doesn't mean you couldn't have very considerable delays as things get litigated, including over months. That said, I don't think you issue the subpoena unless hearing from Mike Pence or Mark Meadows or finding out what's on Scott Perry's phone is something you need to do in order to wrap up. So also today, we're going to be getting the partial release of the special Georgia grand jury report. And as you and I are speaking, it has not been released or we certainly have not read it. This, of course, is the grand jury that was impaneled at the request of Fulton

County District Attorney Fannie Willis, looking at Trump's efforts to overturn the Georgia election. They're going to be releasing part of this over the objections of the DA. The judge in the case on Monday issued an order denying full release, citing due process concerns for named individuals. Nobody's expecting a bombshell, but just talk to me a little bit about why you would release something in the middle of the process and why Fannie Willis has objected to this release. Yeah. So first of all, this is a case I have been following extremely closely, partly as a result of the fact that Lawfare has been covering it with particular care. So the background here is that the law requires the publication of a special grand jury report

if the special grand jury recommends publication of the report. The grand jury here did recommend publication of the report, and so the judge believes that publication is mandatory. However, he also believes that publication, while it may be mandatory, is not mandatory immediately. He thinks it's mandatory as parts of the report become releasable without compromising people's due process rights and without compromising an ongoing investigation. So right now, he determined on Monday that there are three portions of the report that can be released without doing either of those harms. One is the introduction, which presumably just

describes, we the grand jury investigated the following things, we talked to X number of people, we blah, blah, blah, right, but doesn't say who they're recommending indictments against the conclusion. And this section, it's section eight of the report, in which the grand jury, apparently without naming names, raises the concern that some witnesses have been lying to the grand jury. So I think we will probably learn today some stuff, at least about the contours and shape of the grand jury investigation. We might get some tea leaves. We got some interesting tea leaves in the judge's opinion on Monday, and I think we'll probably get some more just in terms of the sort of grand jury's body language. But the opinion suggested that the main reason he was releasing these sections was because they don't tell you who the grand jury is recommending indictment and for what.

He does, however, say in the opinion that the grand jury report contains the word he used was a roster of those people against whom it was recommending indictment and for what. And I do think the word roster is very interesting. A roster you think of as the list of people on an airplane or the list of people on a sports team or in a class, right? It's not one person. It's not zero people. You would never describe a roster as empty. And so I do think the body language of the judge's opinion really suggests that there is a list of people who the grand jury is recommending be indicted. So one last legal question. I admit that I am becoming increasingly skeptical about whether or not there would be criminal charges brought in the Mar-a-Lago document case,

especially with all of the confusion about whether Biden had documents and Pence had documents. But Jack Smith, again, moving very, very aggressively, subpoenaing one of Trump's attorneys, Evan Corcoran, to provide additional testimony. Now, normally, this is shielded by attorney-client privilege, but the Department of Justice, they're saying that Trump used this attorney, Corcoran, in furtherance of a crime or fraud, which, of course, would represent a pretty aggressive move yet. A lot of legal observers are saying this is an indication that Jack Smith is pivoting toward the whole question of obstruction, as opposed to just taking the documents, that he's going to be focusing on the possibility that there were lies, that the investigation was obstructed by Donald Trump, which, again, would be very much on brand for the former president. So what's your take on going after the attorney under these circumstances? I don't think it's a pivot. I think they have always been focused on the obstruction.

I think what separated this case from the Biden case and the Pence case and lots of other cases in which documents accidentally spill, or in Trump's case, maybe not so accidentally, but there's a spillage of classified information to out of skiffs and to where it's not supposed to be, is that the National Archive could not retrieve those documents in a responsible way. And the FBI felt lied to when it tried to retrieve them. And that is a super big no-no. And so I have never soured on the idea of a Mar-a-Lago prosecution. I still think for a lot of reasons, it is more likely than the January 6th prosecution of Donald Trump, the most important of those reasons, I'm talking about federal level prosecutions, not Georgia, The most important of those reasons, I'm talking about

federal level prosecutions, not Georgia. The most important of those reasons being that Donald Trump was not president at the time that this conduct took place. Prosecuting an ex-president for conduct while he was president is a very, very hard proposition. Not impossible, but it raises a lot of tricky questions. Prosecuting an ex-president for refusing to give back information and causing people to lie about it and obstructing a lawful investigation designed to protect national security is a much easier proposition. And I do think the evidence that Jack Smith agrees with me about that is that they do appear to be pursuing this aggressively. And they are alleging that Trump's use of his attorneys is not protected by attorney-client privilege because it was utilizing attorneys

for purposes of criminal behavior. So there are two separate lenses, though, that we need to look at this through. The legal case seems to be somewhat coming into focus, the distinctions between the cases. But then the question is, politically, will the Department of Justice, will Jack Smith be able to make the case that even though we found these documents with Joe Biden and Mike Pence, that the Trump case is different. The political case strikes me as much more complicated and fraught than the legal case you just described. First of all, I'm not sure that it is Jack Smith that will have to make the case that it's different. Because Jack Smith, imagine that he now brings

a criminal case against Donald Trump. We're not there yet, but let's say two months from now, such a case were to materialize. He's not the one who's then going to decline the case against Joe Biden and Mike Pence. That's a different special counsel. And so when that special counsel declines that case, if that's the direction that it goes, as I think it will, it will be he who has to explain why that case is different from the case that Jack Smith brought against Donald Trump. And I think he will be able to say three things. First of all, the volume of classified information is dramatically lower. Secondly, we developed no evidence that Mike Pence individually was responsible for mishandling these documents. We couldn't figure out whether it was staff,

whether it was him, whether it just got mixed up in some big... Yeah, and the third thing is they found it on their own and they cooperated fully with the return of it. And there was no evidence of efforts to obstruct the FBI in recovering it. So it's nothing like what is alleged in the Trump indictment. Now, if any of those facts is not true, that's going to get pretty muddy. But I don't think it is politically that difficult a situation. Will Jim Jordan rant and rave about it? Of course he will, but he's ranting and raving about it now, and nobody's brought or declined any cases yet. No, I don't think that you make a decision based on how it's going to play on Fox News. All right, so Ben, we are coming up on a major anniversary within the next week, one year of war in Ukraine. And the word on the street is that you were out last night making trouble again.

I was. I ordered a few weeks ago a new spotlight that I was hopeful would allow me to cover the front of the Russian embassy with a big, bright Ukrainian flag. And it arrived yesterday, and I was super excited to try it out. So I threw it in the back of my car and drove over and plugged it into a friend's house across the street from the embassy. And just- I cannot tell you how much I love this. And just shined it on the embassy. And, you know, whenever I do that,

it drags the Russians out of bed because they have to put up their own spotlights with with Z's and V's. And so but it was really just a test, you know, because it's for the anniversary of the 24th next Friday, the Ukrainian community in Washington and in New York and in Philadelphia and in the sort of mid-Atlantic area is organizing a number of events in connection with the anniversary of the full-scale invasion, which I would really encourage Washington-based people to attend. They have asked me to help out on the evening of the 24th. They're having a candlelight vigil at the Russian embassy, candles and lights. I don't do candles, but I do do lights. And so I've been working on some interesting displays, both with my laser and with this new spotlight. And so I was eager

to try it out. It's called a gobo. Is this right? It's a gobo spotlight. So the gobo is the filter that you put inside it. And I had this one made out of tinted glass. And so it projects a very, very sharp image of the Ukrainian flag. And I also had one made with a map of Ukraine. And, you know, the idea is this can project over rather large distances. This is 300 feet or more. And it came out beautifully. People can look on my Twitter feed and see the results of the test.

We've named the spotlight. I give all my lights names. This one is named Heimar, and she is 13 pounds and 12,000 lumens, which is a lot of light. And I'm very, very enthusiastic about her. So the Russians must be totally pissed off. They must have your name in a file somewhere in that embassy. Well, they've had my name in a file ever since I challenged Vladimir Putin to a fist fight back in 2015.

Elon Musk, by the way, stole that from me, the single combat with Putin thing. And back when lawfare became very prominent after Trump was elected, somebody at the Washington Post dredged this out of lawfare and found that I had challenged Putin to a fight. And the Washington Post did a big article about it. And in response, Dmitry Peskov, the press secretary of the Kremlin, was asked about it at the Kremlin Daily Brief about whether Putin would fight a, you know, middle-aged desk worker in Washington. And Peskov responded that they'd never heard of me and that Putin's martial arts skills were legendary. And ever since then, I have definitely been kind of on their radar screen. I've had, you know, some computer security issues and, you know, Google periodically warns me that I'm being targeted by a foreign state actor. And I've had FBI warnings as well. So

their interest in me is not new to the spotlight shenanigans, but they do definitely notice and they find it irritating. And they, you know, always drag the Secret Service guys out to talk to me. And so I had a nice little chat with the Secret Service last night. So, I mean, it's got to be gratifying to know that at some point in the next week, if it hasn't already happened, that there's a strategy meeting in the Russian embassy to figure out how to deal with this new powerful spotlight that's going to shine the Ukrainian flag on the embassy next Friday night. I mean, they must be strategizing, like, who's in charge of blocking it?

Who's in charge of putting up the big Z? Exactly. I mean, they have to have a plan to counter Ben Wittes' Gobo spotlight next Friday night. And they have to do it at multiple facilities. So, you know, to Ambassador Antonov, you know, I'm just saying after we're done at the embassy, we do reserve the right to hit the ambassador's residence as well. It's just a short car ride away. And we've got some special stuff planned. And so, you know, part of the point of this is just to force them to spend resources showing the world who they are. It's not that they don't do that in Kiev every day or in Bakhmut, but for them to,

you know, to have to bring that behavior a little bit, one tenth of one percent of that behavior to their conduct in Washington is actually the animating force behind the whole thing. And also just, you know, honestly, to show Ukrainian communities that we care about them and to show members of Congress who may be wavering on the subject that Americans actually care about what happens in Ukraine. I think this is important, although I hope that you get a remote car starter. Maybe we could do a GoFundMe for that. If I am reported to kill myself over any reasonable period of time, it wasn't a suicide. We need to mark the tape right there.

Ben Wittes, thank you so much for coming back on the podcast. Ben is the editor-in-chief at Lawfare, senior fellow in governance studies at the Brookings Institution, and his books include Unmaking the Presidency, Donald Trump's War on the World's Most Powerful Office, and he is best known, of course, for writing the Dog Shirt Daily on Substack. Ben, thanks for coming back. Thanks for having me. And thank you all for listening to today's Bulwark Podcast.

I'm Charlie Sykes. We'll be back tomorrow, and we'll do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.