The Bulwark Podcast - David Priess: Trump's Very Bad Day at Court

Episode Date: November 23, 2022

A trio of conservative judges sounded very skeptical about Trump's need for a special master in the Mar-a-Lago case, and the Supreme Court basically told him, "No, we are not your justices." Plus, the post-shame culture of Tucker Carlson. David Priess joins Charlie Sykes. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Welcome to the Bulwark Podcast. I'm Charlie Sykes. It is the Wednesday before Thanksgiving, so I'm sure that many of you are already heading out and hopefully prepared to check out for the four-day weekend. And just a quick reminder that tomorrow's podcast, we will have a podcast on Thanksgiving, but it will be different. We will have the entire Bulwark family on the podcast to reflect on the past year and talk about what they are grateful for. And I think it will be worth your time. I think we can take a one day break from the punditry to do that. We wake up today, though, with another, unfortunately, quintessentially American story of another shooting in Virginia. I've lost track. Is this the 600th mass shooting, you have to say, well, you need to be more specific. Which mass shooting? The club in Colorado Springs or the Walmart in Virginia? And so joining me once again on the podcast, David Preece, who is the publisher of Lawfare and co-host of the weekly national security podcast called Chatter. Welcome back, David. How are you? I am okay. It's horrible to wake up to news like that.

And yet I balance that with kind of a smile on my face because of what you said about the podcast tomorrow, right? This is a chance to give thanks. And Unchatter, which is the lawfare podcast that Shane Harris and I co-host, we just recorded an episode that will also air tomorrow in which Shane and I give thanks. We spend the time instead of talking to a guest at length about a national security related topic. We spend time reviewing what happened during the past year, how grateful we are for our guests and our listeners and kind of putting putting some perspective on the daily dark news. Yeah, that is important. I think we need to cultivate gratitude. I think that we are unfortunately wired

to focus on the negative, the bad news. And I think it takes an act of will to step back and go, okay, what were the good things? Let's put things in perspective. You know, I've had this conversation with a lot of my friends, you know, that you may have, you know, 90 really good things happen to you,

but you'll focus on the two or three terrible things because I, maybe that's the way we're wired, right? We're out on the Savannah and we're wired to worry about, you know, the, the, the, the lion in the tall grass that's going to come and eat us as opposed to, Hey, that's a beautiful flower over there. Right. I mean, that's, that's how we've survived as a species, I suppose, kind of a miserable species. Yeah. That's how we've gotten here, right? But it also gives us the ability to appreciate the flower more because when you are aware of the darkness, when you're aware of the threat, you can actually step back and appreciate the things that might otherwise blend into the background. Well, let's come back to this later in the podcast because I want to spend a little

bit of time on this. But I don't know whether I've told you this. I've shared this many, many, many times. So people who have been following me over the years know what my reaction is. I hate the morning after mass shootings more than anything. I really, I find it very difficult to talk about it. I think as I get older, I get the sense of the tragedy and the loss, the irreparable loss more. But also, it is so soul crushing to go back into that doom loop of the same old talking points, the way that we have numbed ourselves to the tragedy. And we just retreat back to the corners of the same old feudal debates in the demagoguery. And it's just it's so depressing because there is this sort of line that we get from. And I'm sorry to say the gun rights advocates that that there's nothing we can do about these mass shootings that we need to learn to live with it. Well, we are the only country on earth that has, quote unquote, learned to live with these horrors. And you look at us from outside and people go, no, here's a sign that America is exceptional in the worst possible way. And it just keeps happening. Well, there is two thoughts, Charlie.

One is, yes, I know you and I have talked about this and maybe it was offline or maybe it was on a recording because statistically, I think I've been on the podcast often enough that it would be hard for us not to have recorded the day after a mass shooting that hit the headlines. So there's just that, which is a sad statement about where we are in America today. The other one is that we aren't the only country that has ever had gun violence and mass shootings. Other countries have had some experience with it. The difference is they actually enacted legislation and drastically reduced access to guns, especially certain kinds of weapons, but guns overall. And guess what? It's not a problem there. This isn't rocket science, how this happens. And what I'd like to see, and unfortunately, it's still not happening, and I don't know what it will

take, but I would like to see people acknowledging that, yes, there is a role for guns because of our national character, our national experience. There is a second amendment and that isn't getting overturned anytime soon. Deal with it. I would also like to see the radical pro-gun lobby acknowledge that there's a difference between different types of weapons and that there are reasonable safeguards that can be enacted. And those need to be much, much more than we have now. But we really don't have an issue with understanding the problem. We have an issue with getting politically to the solution that is somewhere in the middle, I think more on one end of the middle than the other, but that's me. But I think that there's a problem with the politics of getting there, not a problem with understanding exactly what's going on. Well, at minimum, maybe we should stop fetishizing guns.

Politicians perhaps ought to stop posing with heavy firepower or weapons of mass destruction as if they are toys or somehow a cultural social signaling. I mean, that would just be kind of a minimal thing here. So, Dave, I have been really reluctant and just reluctant, not because I don't believe there's a connection between the rhetoric and the violence, but just I think there's there's a point at which you wait for the facts to catch up with the speculation. So I have been slow in connecting all the dots between all of the anti-gay, anti-trans rhetoric and legislation out there and the shooting, because we don't know what went on in this young man's mind. I mean, Kara Swisher has this up as a podcast when she's on just a

splendid job. She says, you know, all this legislation, all this hatred, you know, Lauren Boebert saying she feels, you know, this is upsetting, you know, but she's been right at the forefront of using terms like groomers and pedos around gay people and trans people. And this is how you lead to violence. Again, we don't know what the motivation on the part of this, uh, this young man was, but it's not a binary choice is it? It's not, it's not like the rhetoric caused the violence versus no, it's one crazy person. This is one of the reasons you have to be restrained with the language is because there are unstable, unhinged individuals who might act out. And whether you're talking about the attack on Paul Pelosi or whether you're talking about the attack

on the Republican congressman a few years ago or or this, it's not a choice either or that you're dealing with one mentally disturbed individual or the rhetoric. The rhetoric seems designed to spark and flare the mentally unstable actors out there. And so I think that's worth saying. We definitely have a problem with definitions here, which is, and maybe it's me, I have a hard time finding a word to describe someone who makes the choice to go out and, and shoot a bunch of strangers with an intent to kill and, and not put in some kind of mental illness or not put in some kind of, as you said, crazy person, uh, taking this rhetoric and running with it. It's built in. Um, I can't find a rational calculation by which somebody would say this is ethically and

practically the right thing to do, and I'm doing this with a clear mind, I think by definition there's something wrong with someone who chooses to do that. But the solution to that isn't to say it's a mental health problem, not a gun problem, because what's happening is people are motivated to do it by the political atmosphere. And this is not new. This goes back to, you know, even presidential assassinations. You had McKinley assassinated by someone who was radicalized, if you will, by the anarchist movement. So this happens in American history. It's just now it's not, it's not a one-off, right? It's literally every day there are the shootings going on and

it's the availability of weapons, the availability of the rhetoric to justify the violence with those weapons that has led to an epidemic that somehow societally we've, we've learned to accept as background noise. It's not background noise. These are, these are people's lives. These are people living in fear. And I keep thinking, what is it going to take to break this? And I'm thinking just in my mind, Uvalde. I felt that way after Sandy Hook. I thought if that doesn't do it, nothing will do it. Literally nothing.

I mean, that kind of broke me, the Sandy Hook. I think I am in a very dark place when I think about that because it's horrifying as a parent, as a member of society. I still have some optimism there, however, because I think it is so apparent that this is a problem, that yes, eventually there will be some people who go to vote and they do not vote for the congressperson who is posing with guns and smiling and laughing at putting up a target of their political opponent. At some point, the population and maybe it takes a mass shooting in that district. I don't know. I don't know. But at some point, people have to turn against that if they have a shred of humanity left. Now, what will it take to get there? I don't I don't want to think about that. That's too horrible to

imagine. But there must be a breaking point. Well, you know want to think about. That's too horrible to imagine, but there must be a breaking point. Well, you know, you think about how anti-Semitic rhetoric leads to attacks on synagogues, talk about replacement theory and immigrant invasions leads to shootings like you saw in El Paso. And I have to say that the gay and trans community has to be very, very alarmed at the way in which, you know, years-long rhetorical attack might spur more violence i mean look this has become this has become a huge thing on the right it's not just q anon and if you if you're putting out the message that you're dealing with pedophiles and groomers and that they are uh they want to rape or castrate children um there will be people

who will think if that's actually true true, what is the appropriate rational response? Well, it is to go out, it's to grab a gun. Remember in Pizzagate, this guy kept hearing these conspiracy theories about a sex ring at Comet Pizza, and he goes there with a gun. Well, okay, he thinks maybe there are children in the basement. And, you know, people like Tucker Carlson, you know, elected officials, you know, have decided basically this is their wedge issue to to treat gay and trans people as if they are a threat to everyone else. It's not just a matter of, hey, if you don't want to go to a drag queen show, just don't go or let's tolerate. It's like, no, these people, they pose a threat to you. And even last night, he has a guest on the show and you know this guest says that shootings like the club q shooting are going to keep happening until we end this evil

agenda of gender affirming care she says this on the air after the massacre there i mean ideas have consequences this is terrifying culture war used to be a metaphor, a phrase, and now culture war is an aspiration. You have people who actually want this to escalate. And it's clear because after. And obviously it needn't be said, but obviously that's, that's bad for America in so many ways. And it's, it's purely unethical. And I don't understand the producers who go along with that, even if, if he decides that's what he wants to see is a literal culture war in America. What about the whole team around him that says, yeah, yeah, we're, we're on board with this. That's shameful. What about the Murdochs, you know, who put them on the air or the advertisers? But I mean, I think we need to understand this is the new culture that you asked the question,

what will it take? Well, you know, we're old enough to remember when after a horrific atrocity, that there would be a moment of sobriety. We would, you know, rally around that there would be a flare up of decency. But now the culture of never apologize post shame means that you have to lean into it. You don't take a breath and step back and say, OK, have I contributed in responsible for this. I am not going to stop saying these kinds of incendiary things. If anything, I'm going to double down and I dare you to call me a racist. Remember when Tucker Carlson, there was a big story in the New York Times about, you know, his overt racism and big story. And Tucker Carlson posed with a picture of this with a big freaking shit eating smile on his face. So it's like you embrace it. You don't back away from it. So everything that's been happening is going to continue and probably will get worse

because none of the main actors are going to learn anything from this or back away from this. Yeah. I keep coming back to the same place, which is this horrible mix of pessimism and optimism, right? The pessimism, it keeps happening. I wake up, I see the news. I, I, I start to wonder, okay, where, where, where is really safe anymore? Even if you're not directly engaged in the culture war, the culture war is going to directly engage you. And then I feel optimism because it's, it's not just my bubble. Um, you know, it. It's not just our space that we happen to inhabit. I have a pretty wide network from where I grew up of people from a wide variety of views, including some hardcore Second Amendment folks who are not the type who want to go out and get involved in a culture war. So even the people that, you know, Tucker may be talking to, he's making an assumption and taking for granted that there is this demand for it when, in fact, some of the people who are the most behind the principle are the most morally opposed to, you know, using those weapons in this way. And so I have optimism based on that, if nothing else.

Well, I want to talk about the Supreme Court decision on Trump's tax returns, Merrick Garland's appointment of the special counsel, the argument before the 11th Circuit about the special master in the Mar-a-Lago case. But I just want to spend just a couple more minutes here on what happened in Colorado. Our colleague Tim Miller had a great piece up yesterday where he pointed out this was preventable. Speaking of the law, Colorado has a red flag law, and it's known as the Extreme Risk Protection Order that allows the temporary removal of firearms from people who are considered at risk of committing a violent act. And this is overwhelmingly popular in Colorado. I think something like 81% of Coloradans support that red flag law. The governor of Colorado, Jared Polis, was just reelected by a landslide.

But despite that, getting to what happened here, 37 of the state's 64 counties declared some form of Second Amendment sanctuary where the local police have refused to enforce the law. And one of those sanctuary jurisdictions was El Paso County, home to Colorado Springs. So we have this story of this young man who was involved in this police standoff bomb threat back in 2021. Nobody really knows what happened to all those felony charges. Clearly a slam dunk red flag case to make sure that guy never has an AR-15. And yet in this Second Amendment sanctuary county, you know, the sheriff, the DA, they all look the other way. Yeah. What do you do about that? Yeah, I want to I want to pull out a line that Tim wrote in that great piece on the bulwark. He wrote, God willing, the people of Colorado Springs will see

this simple reality and replace these zealots with elected representatives who care whether or not their constituents live or die. That really captures it, right? That's what we're talking about. We're not talking about people changing their fundamental views on the Constitution and its amendments. We're talking about people actually being willing to uphold the laws that have been passed and to make sure that there are people who are passing common sense gun laws and avoiding their radical ideological ends. That's a lower bar. That's simply getting people to vote based on this factor among others. Tim put it better than I ever could when he says, you know, we want officials who want their neighbors to be able to go to their place of refuge, whatever that may be,

without fearing that some nutcase is packing heat because the people who are supposed to protect them are unwilling to act on the very law they are sworn to uphold. That's what it boils down to, is electing the right people and then having people enforce the law. Yeah. And I wish I was more optimistic about that. OK, so let's talk about the courts. Supreme Court yesterday. Yeah. Cleared the way for Trump tax returns to go to Congress. And Trump is not taking it well. I don't know if you saw his comment on Truth Social, because I'm guessing you may not.

Somehow I missed that one. So here's the here's's the, here's the former president lashing out at his own Supreme court majority. The Supreme court has lost its honor, prestige and standing, and has become nothing more than a political body with our country paying the price. They refused to even look at the election hoax of 2020 shame on them, exclamation point, lots of random capitalizations there as well. So Supreme Court, without comment, appears to be unanimous, clears way for Trump's tax returns to go to Congress. What do you make of that? I'm going to disappoint a lot of people here and say that I probably theoretically could care less

about Trump's tax returns. But on the list of things I'm concerned about, it's pretty low. And I don't think that there's anything there. I mean, look, this is a guy who could be indicted for involvement in an insurrection against the United States. This is a guy who could be indicted for taking, no kidding, top secret materials that colleagues of mine defended around the world, taking those to his private residence and then refusing to give them up. This is a guy who could be indicted for interfering with electors in Georgia and his tax return. That's like celebrity financial porn. It's not that there's anything substantively in those. Look, the IRS has reviewed those. Obviously the IRS received them.

They review them. They review them. They decide whether there's something that is needing of an audit, and they have investigatory tools to pursue that. The fact that politicians now have their hands on it and that the general public will get to see them, to me, we are focusing on the wrong thing. Now, is it a good step that finally there's some kind of accountability in that realm too? Yes. But the fact that it took the courts literally years to get to this point points out why people feel a sense of exhaustion about political accountability on all of these fronts, because it takes so long to do something that seems so obvious to get through the entire court

system. So we've spent a lot of time getting to a result that I thought we were going to get to eventually anyway. And I'm not sure that it's really going to be that anything beyond titillating when we find out what's actually in the returns. Now, this is going to disappoint you, but I agree with your take on all of this. That wait, wait, we can't have that. Yeah, well, especially because what are the tax returns going to show? The tax returns are going to show that he's a con man, a crook, and he probably doesn't pay much in taxes. We kind of know that. We've already priced that in, right?

That's already big in. The upside of this, though, is the signal that the court sent to at least Donald Trump, that they're not they're not his lackeys. And that's why he is so angry, because I think in Donald Trump's mind, he keeps thinking that the Supreme Court is his backstop for stealing the election, for overturning the election, for evading the rule of law. And the court is kind of saying to him, Donald, you know, thanks for the appointment, but we're not your justices. And so I agree with you on the taxes, but I think that the signal sent to Donald Trump was a welcome one. Definitely. And I think it's, again, I'm not going to dismiss that it's a step in the right direction. And it seems to be,

from what I've seen, a proper decision. I just hate the fact that it's headline news, because you're right, it's already priced into who Donald Trump is. And I don't think anything after the summer of 2016, you know, he vows to release the tax returns as every major party U.S. presidential candidate has done since about 1976. So through the lifetime of many Americans, the fact that he then decided, no, I'm not going to do it. And this is old news, right? We're talking five years ago that nobody really expected he was ever going to turn them over and it would take a fight to do it. But for what? I still think when we're talking about insurrection, when we're talking about interference with electors, and when we're talking about possessing classified

material you're not entitled to at your beach resort, we've got much bigger fish to fry. Okay, so let's move on to those things. And I want to get to your take on, I'm very interested in your take on Merrick Garland's appointment of a special counsel. But let's stick with the news of the day. The 11th Circuit Court of Appeals hearing arguments on the special master in the Mar-a-Lago case. The panel of judges yesterday down in Atlanta seemed deeply skeptical of the argument that the federal government violated Trump's rights when they searched

Mar-a-Lago in August. Also questioned whether a lower court judge, a Trump appointee, Eileen Cannon, erred in appointing a special master to review the documents seized from the Florida property. I mean, the Justice Department is arguing in front of this, it's kind of known as a conservative panel, argued that the appointment was an intrusion on the executive branch, and Trump didn't prove that the FBI search constituted an irreparable harm. And at one point, Trump's attorney, James Trustee,

argued that the carte blanche search included the confiscation of incredibly personal items like golf shirts and a photo of Celine Dion. I don't know, but at least from what I'm reading, it didn't seem that his argument persuaded the judges that this was overreach, even though they got the photo of Celine Dion. So what is your take on what's going on with the 11th Circuit and the special master argument? I think we know with almost certainty that it did not sway the judges. Because look, the 11th Circuit had already ruled previously on the fundamental merits of the case, even though they had a more limited motion at the time. But the logic they used applies to everything that was discussed yesterday. And they made clear that even this,

even the most Trump-friendly selection of judges on the circuit you could get, I believe two Trump appointed judges and one George W. Bush appointed judge, although I might be wrong on the balance there. But if you're looking for that as a measure of how people will rule, which I think is a much, much overrated parlor game. I don't like it. But even if you go to that point, this panel already ruled that the logic by which Trump was arguing his main points was invalid. So it would very, very much surprise me if anything comes out here. In fact, the intrepid Anna Bauer, who's been writing for Lawfare on the court cases in Georgia. Absolutely brilliant writer. I refer everybody to Lawfare today to look at her article called

Trump has a bad day at the 11th Circuit. The way she wrote it up after attending the entire session was that the sense around the court was that this time Trump will lose bigly. I don't see any way out of it. The reasoning that Judge Cannon used was specious. It did not have any real weight behind it. And the 11th Circuit has been forced by her, has been forced to embarrass her publicly for that. And they probably could put out a ruling today. I don't know. I'm not sure they want to rush it before the holiday. But because they'd already examined the merits, they'd already written it in a previous opinion. It wouldn't surprise me if sometime today a full opinion comes out that basically repeats the logic they had already laid out and shows that these arguments are ridiculous.

Well, and the Constitution of the panel is somewhat significant. Judge William Pryor, who was appointed by George W. Bush said, and he's one of the most conservative judges in the country said, I don't think it's necessarily the fault of the government. If someone has intermingled classified documents and all kinds of other personal property, which is kind of, they blows it out. That is the conservative argument, by the way. I mean, that, that if you think, talk about traditional conservative legal principles, you're damn right. That's what you should say. So it is interesting hearing that from Pryor.

And I probably should throw in here that my my son actually clerked for Judge Pryor in the past, by the way. So my producer sent me this little note here about, you know, about the Celine Dion photo and why this brought up that this was intermingled. And apparently one legal analyst pointed out that Trump has various obsessions with her because she refused to sing at his inauguration. And of course, you know, she famously sang Memory from Cats in a cat costume when she was 19 years old. And apparently that was one of Donald Trump's comfort songs. When people wanted to calm him down, they would play Memory. Pigeon Dr. Freud. Somebody who's designated the music man was part of his entourage used to play the song to soothe him when he was enraged, according to Stephanie Grisham, the former Trump. You know what? He's mad. Play Memory. I think about cats at this point. I had left my employment at CIA and I had taken dozens or hundreds of classified documents with

me up to and including top secret material, things that were restricted such that not even the people doing the search could all see them. And I had mixed them together with personal photos and personal notes and embroidered t-shirts. Do you think that the investigators would care? That's, that's not a reasonable argument. There's nothing legally to that. Now there is a point, and this is where the whole special master thing just got to me is a special master makes sense. Uh, in particular, if you are rating a legal office and you're going through file cabinets of actual physical paper. And you're trying to find some specific evidence that the court has approved for this warrant. And you go in, but it's intermingled with a bunch of other attorney-client privilege for not only that client, but other clients. That's exactly what a special master is useful for. That's not the case here.

The case here that they're arguing is because it's intermingled with pictures of Celine Dion and golf shirts, that that is the special master logic. It just doesn't seem reasonable for a case of this apparent clarity on the issue of classified material and the president's inability or unwillingness to return such classified material when it had been requested to be talking about pictures of singers and shirts. You'd kind of think that the lawyer would be embarrassed to make that argument, wouldn't you? Yeah. And that's an interesting point, Charlie, is the accountability issue. We've talked a lot, you and I, over the years about political accountability. We've talked somewhat about even within party accountability, but there is an accountability

within the legal profession here. And when somebody is making the best arguments they can on behalf of their client, that's built into the system. We've decided as a society, that's what we want. We want an adversarial political system whereby someone is allowed to make legal arguments, even if they're not objectively strong, if they're the best argument that can be made, we accept that lawyers will take positions that they may not even agree with. But when it's something like this, when it's something so egregious that it can violate the ethical

standards of the bar, bar associations really need to step up and show that you can't go into court and just have a fantasy land. At that point, you are wasting the taxpayers' money on the endless litigation. You are wasting the patients of America with accountability. And frankly, you're undermining your own credibility as a bar association if you allow that. And every law student coming through is learning a lesson from this, which is no holds barred. We get to say anything we want to say on behalf of a client, as long as they pay us or in Trump's case, say they'll pay us. Who knows if they'll ever get paid. And to me, that's part of the accountability situation too, is the legal system needs to

take a really hard look at itself. All right. So this leads us to the main event today, Merrick Erland's appointment of a special counsel. It seems so long ago. You and I are talking on Wednesday. This took place on Friday. It was like several months ago, but it's only been several dissertations have already been written about this appointment, right? It's been five days. So let's get your take on this. You at Lawfare had an emergency podcast the day that Garland made the announcement last Friday. So with five days of introspection and retrospection, what is your take? I think personally, and I won't speak for the others at Lawfare, but I will encourage everyone to listen to that podcast. Or if you're more of the reading

type, there was also a write-up of the quick take on that. My personal take is I have not shifted much from a couple of days before the announcement when it had been made clear that if the president announced that there probably would be a special counsel. I'm not sure my thinking has changed other than marginally since then, which is unpopular, but good. Like at this point, you have a situation where the attorney general of the United States, uh, apart from the fact that it's personally Merrick Garland, but just take the position. The attorney general of the United States is in charge of investigating a presidential candidate of a major party

who is according to polls, the leading candidate to get the nomination at this point, somebody who, if he wins the presidency, will remove you from your position as attorney general. It's something that always happens for that position. I think it's very hard not to appoint a special counsel at that point to oversee the investigations. So I think at one point, it's just ethically, there is a strong case for it. On the other side of it is the practical implications of it. And a lot of the immediate reaction I saw in social media, but also on some of the quick takes on cable news was, oh, haven't we waited long enough? Why haven't they brought indictments already?

This is just going to add years. Look how long the Mueller probe took and all this. Completely ignorant of the fact that they are two very different kinds of investigations. Yes, there had been work being done on some aspects of what Mueller ended up investigating before Mueller was named. That built on an existing investigation. But there was a whole lot of information that had to be uncovered. In this case, a lot of the work is done, and there's no reason that within days the new special counsel cannot be brought up to speed and then actually probably move more quickly than the Justice Department bureaucracy could have moved without

him being appointed. So I don't want to hear the arguments of this will elongate the situation. I don't think it does that. I think, if anything, it speeds up any ultimate decision and it removes the whole Attorney General Merrick Garland making a decision about somebody who could affect him personally, materially. I think it's a good decision for those reasons. I don't disagree with you, but I think it would be naive to think that this will somehow insulate the Biden administration and Merrick Garland from the accusation of political interference. I mean,

it doesn't really matter, right? I mean, Trump is going to throw whatever he's going to throw. He's already attacking Jack Smith, the special counsel for being a what a tool of Barack Obama and Eric Holder. I don't know what that's about and why he felt the need to go back. Well, actually, I kind of do know why he's playing that particular card. So you're going to get the same sort of blowback from Republicans and Trump as. But give me your take on Jack Smith, because this also struck me as an interesting appointment. You know, without any disrespect, Robert Mueller and Merrick Garland come from a certain generation, a certain tradition that meant that their conflict with Donald Trump was a little bit asymmetric because these are guys who respect tradition and norms and they're up against somebody who respects

neither of them. But Jack Smith seems to be a much more aggressive, younger guy who has been cutting his teeth dealing with war criminals. So give me your thoughts on why Jack Smith and what we can expect from him. Yeah, Charlie, you and I disagree a bit on the premises there, which is the Mueller kind of with his hands tied behind his back because he's old school and genteel, whereas the president at the time was not. I think it boiled down much more to the fact that Bob Mueller was following Justice Department procedures and people who argue that Mueller should have untied his hands from behind his back, taken his gloves off, and started

punching back the way that Trump punched, kind of missed the point that he could not have been special counsel and there would have been grounds for removal at that point. And there were already so many calls for his removal based on ridiculous reasons. But once you violate the norms of the Justice Department and the regulations of the special counsel, you give ammunition to that otherwise ridiculous argument. And the new special counsel is under the same regulations. The new special counsel is not going to be decidedly different. Now, it doesn't mean that he decides to bring an indictment when Mueller didn't. Well, they're two different cases, so you can't put that to the fact that he's more aggressive or more energetic than Mueller was. They're two very different cases. Look, Mueller made very clear in his report that there had been

obstruction of justice. He couldn't say it based on the fact that he could not, under Justice Department regulations, indict the sitting president. But he laid it out pretty clearly for those in Congress who wanted to hear it, most of whom did not, that it's up to you. This is something that impeachment is the remedy, and removal from office is the punishment. And I've given you all the evidence you need to do that, and they simply chose not to bring it up. This special counsel has a different situation. Not only is the substance very different, but you're not dealing with a sitting president and he is not bound by that part of the regulation and the memo from the office of legal counsel. So I think we are still looking at a situation where there is

a more likely indictment than not. Um, but I also not. But I also know, I don't know the special counsel personally. My time briefing intelligence at the Justice Department and the FBI to the Attorney General and the Director of the FBI and those around them introduced me to a whole lot of people of that generation that ended up becoming leaders in the institutions, but Jack was not one of them. From people I know who have worked with him and talked with him, say an inspired choice, not as well known a name, but that is not the point here. The point here isn't to have a celebrity special counsel. The point is to have someone who is well prepared by experience in issues of public integrity, which he is, who's experienced in very difficult and sensitive political issues involving judicial choices, as he is from the war crimes prosecutions, and someone who's familiar with the role of an attorney, as he is. So I think it's a good choice, and I actually don't see the Mueller parallel being exceptionally useful here. So I want to engage in some absolutely rank speculation here

with a fictional scene that I'm trying to imagine. The sitting around the attorney general's office and there's, you know, all the top officials there and they're discussing this. They've made the decision, okay, we're going to have to appoint a special counsel because Donald Trump has forced our hand on this. So we're going to do this. Who, you know, who should we appoint? And I'm imagining that someone is, you know, suggesting, well, we need someone with a lot of gravitas. We need a former retired federal judge or, you know, a former attorney general. We need someone, you know, someone of the Robert Mueller, you know, cast. And then somebody else will throw out other names of various U.S. attorneys or other prosecutors. I'm trying to imagine what the Congress, I think you've already answered this question,

was that somebody then says, no, we ought to go for somebody really young and aggressive and not worry about the gravitas thing. Let's go for this guy. How do you think that conversation went? Because it is an interesting choice. And I mean, there is that default setting when you think about the special counsels in the past, how you go for people with, you know, big reputations and lots of weight, you know, who've sat on, you know,

been on Supreme Court short lists. Remember when when Ken Starr was was a heavyweight, a former federal judge and everything. So they went for this guy. Did they go for him because he has the reputation for moving fast and breaking things and being an attack dog? It's an unkind way of putting it, but yeah. Yeah, I'm not sure about that. I'm not sure I can get in their heads and get to that point. But two thoughts occur to me, Charlie. One is that first, I don't think this was something that came up a couple of days before the announcement that they thought, uh-oh, you know, we got to get our heads together and figure out who it is. Okay,

let's start brainstorming candidates. I think the possibility of the need for a special counsel was such that this is probably something that they had been considering at the highest levels of the Justice Department for some time and looking at everything from potential conflicts of interest to experience. So I don't think it was a rush decision. I also don't think it was age-based. And honestly, I don't know Jack Smith's age. I know he had been working as a U.S. attorney back to the 1990s, so he's got to be above a certain age at least. And his experience definitely shows that he is not a hard-charging 20-something who's coming into this job. They found somebody who checked several boxes that I think you had to have and did not check one box that I think it's arguable whether you want or not. The boxes you had to have is somebody, I think, who has prosecutorial experience. And with his work at U.S. Attorney's offices,

he's got that. The fact that he had worked on public integrity cases, corruption-type cases, I think is, if not necessary, was a very good thing to have in this case. And honestly, I think the war crimes experience, I think having something that sensitive, something that requires very tough judgment calls, not only on the law, but on the situation around the law, is the kind of, the kind of experience, the kind of miles on your car you want when you're driving forward on a tough road like this. The one that I'm not sure you needed to check was the celebrity, right? The, the name, because I'm not sure who else would be out there and available. You know, William Webster

could be a good choice. Former CIA director, former FBI director, well up there in years. He has more experience than I think most living people combined on some of these issues, but he doesn't check all those other boxes in the same way. So yeah, it would be easier for the news stations to quickly write a profile of Judge Webster if he were nominated to do this, but he might not be the right person by experience for the job. Plus, to the extent that it is someone who is well-known and somebody who has that name recognition, that gets away a little bit from what the special counsel is supposed to do. The special counsel isn't supposed to be out there making a public case during the investigation.

And the Mueller investigation got a lot of criticism because they had a communications person who routinely would just say no comment and paid not to interact and give substance to the press. But that's what this is about. This is supposed to be an integrity-based investigation. This is not supposed to be a public spectacle. So I'm pretty pleased with the choice. Again, I don't know him personally, so I can't speak from personal experience. But from everything that I've seen and from talking to former colleagues who did have exposure to him and his work, I think it is a very good choice. So, David, William Webster is 98 years old. Yeah, that's probably one of several reasons he was not chosen.

I actually snarked a couple of seconds ago that he's like 100 years old. Yeah, that's probably one of several reasons he was not chosen. I actually snarked a couple of seconds ago that he's like 100 years old. And then I looked him up and he was actually born in March of 1924. So I got to tell you that if his name came up, that everybody said, what are you smoking? I gotta tell you, though, I have not talked with him in the last couple of years, but it wasn't much before that, probably three years ago that I had a healthy conversation with him. Sharp as a tack. I don't care what age he is. He was still really sharp and insightful. So he came to mind immediately when I thought, special counsel, are they going to try to get somebody with a name like Mueller? Because there ain't that many people who fit into that circle.

But no, I think Jack Smith is a good choice, and I think he's probably working hard on it already. Well, I like the fact that Andrew Weissman was so impressed. I think, you know, having seen all of this up close and from the inside, you know, one of Mueller's top aides and he thinks this was a good choice. So as we wrap up, David, I think it's important to acknowledge that we are going to the Thanksgiving holiday and this has been an eventful year for you. It's been an eventful year for me. I'm going to the Thanksgiving holiday. And this has been an eventful year for you. It's been an eventful year for me. I'm going to save most of my comments for tomorrow's podcast,

which I would strongly recommend because we have the whole Bulwark family coming in, you know, taping, recording what they are grateful for. But let's just talk about this because, again, I think this is something we need to cultivate, gratitude. So, David Preece, 2022, what are you grateful for? Wow, so much. It has been a difficult year,

personally, perhaps the most difficult of my life. And yet that somehow has made me feel more grateful for things that have happened around. We can talk politically as we have before. I'm grateful for independent voters because I think independent voters are the ones who are in some sense, the conscience of the nation, not to say that there aren't ethical calls on either side of the political spectrum, but when tough decisions need to be made, sometimes I think independent voters do that. And along with that, the political courage of people who will claim that they're not being politically courageous, like our friend, uh, Adam Kinzinger and Liz Cheney, but the people who are willing to speak truth, even when it's personally disadvantageous for whatever their immediate goals might be. Broadening it out, though, I think public servants, and you can see that as military service, you can see that as civil service. You can see that as election officials. The people who make our system work, frankly, are not the leaders. It's not the president. It's not the Speaker of the House. They have important customs on the border, people working as election officials, people working at the state and local level.

And we tend not to appreciate them except in times of crisis. So it's good to reflect back on that because of some of the personal difficulties. So, you know, all of these things, Charlie, but not everyone does. Our dog passed away at the beginning of the year, which was rough. And then we brought into our home, Ali, and we rescued each other and he's our new, our new companion. But not long after that, my father suffered and, and passed away. My mother is in significant decline and it's just been a really challenging year. And yet I find myself feeling such gratitude towards medical personnel. During the pandemic, at the start of it, there was a wave of support for medical personnel. And I fear that we've lost some of that. And yet, in many ways, the crisis

isn't over for them. And they've got to deal with all kinds of issues. And I've seen that up close and personal in myriad ways. And I just can't be, I can't express enough gratitude for the doctors, the nurses, the support staff who do their best in the most difficult of situations and somehow make it work. Those are the thoughts that immediately come to mind. Again, if you listen to the episode of Chatter that we'll post tomorrow, you'll hear some more professional thanks for the many guests, for the many listeners, and for the support staff at Lawfare and our audio partners there. But we have to remember, Charlie, that even as we focus on what could be better and what must be better in order to have a just, equitable society. We need to build on success, and a lot of that success comes from recognizing it and being grateful for what people are doing in the right way, at the right time, for the right people.

And Thanksgiving is a wonderful chance to do that. And I think that loss and challenge makes you appreciate what you have. You have a different sense about time and about the fragility of the things that you care about and appreciate them more. I always used to sort of, you know, have this sort of bizarre fantasy that, you know, 100 years from now, if I could come back for one day, what would I want to experience? You know, what part of my life would I like back? And now I'm in a mode of thinking, no, you're living it right now. It's not the bonus time that you can come back to. It's what you experience every single day. And I think this is a hard thing. You know, anytime losing a parent and people who haven't gone

through it, I think there's this myth out there that that at some point you get to the age where you are ready for that. And the real secret, I think, as you know, is that you're never ready for that. You are never ready to be an orphan. You're never ready to lose that that link with with the past. But it really does emphasize, though, all the things you should be grateful for, the years that you had together and what you still have now and to hold a little bit tighter to that. Absolutely, Charlie. And I look forward to hearing your reflections and your gratitude tomorrow on the episode that will be on Thanksgiving. And let me wish you and everyone there at the Bulwark and out there listening a very happy and relaxing Thanksgiving

day. Thank you so much, David. and thank you for coming back on the podcast. And thank you all for listening to today's Bulwark podcast. I'm Charlie Sykes, as David just mentioned. Tomorrow we will have a special Thanksgiving podcast, and we'd be grateful if you tuned in.