The Bulwark Podcast - Did the FBI Get a Pass on Jan 6?

Episode Date: September 14, 2023

Romney's text message to Mitch McConnell renews questions about what law enforcement knew ahead of the attack on the Capitol. Plus, the weak counter-programming planned for Trump's prosecutions, and the foolish ploy against Judge Chutkan. Ben Wittes joins Charlie Sykes for the Trump Trials. show notes: https://www.lawfaremedia.org/article/five-observations-about-the-georgia-special-purpose-grand-jury-report

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Don Valley North, Don Valley North for Lexus. A proud member of Wayne's Auto Group. Donald Trump still faces 91 felony charges, but Republicans in the House of Representatives have decided to engage in a little bit of counter-programming, beginning an impeachment inquiry into President Joe Biden. Meanwhile, it's been a week of a lot of motions, hearings, and orders, and we're going to be catching up with all of that in a moment. But first, let's talk a little bit about Mitt Romney. Up for that, of course, it is Thursday, which means I'm joined by Ben Wittes, Editor-in-Chief of Lawfare. Ben, you up for talking a little bit about Mitt Romney? I'm excited to talk about Mitt Romney.

Let's just start with some of the revelations in that rather extraordinary Atlantic article by McKay Coppins, which maybe I've become too cynical and jaded, but it's always interesting to me to read about a politician who is actually introspective, who thinks about things like history and the fragility of civilizations and death and the verdict of posterity and all of those things. And apparently he, what he used a crowbar on old file cabinets to look at old notes that he'd made and just turn them over to McKay, McKay Coppins. You know, I wrote in my newsletter today that he's leaving the Senate pretty much the way he came in. He was the conscience of the Republican Party, which made him a very, very lonely man. And so here is this former presidential nominee,

former governor of the state of Massachusetts, one-term United States senator, heading off to join Liz Cheney and Adam Kinzinger in exile and pondering what the hell happened to his party. So, your random thoughts on Mitt Romney deciding not to run for re-election, Ben? Let's start with the big one, which is this is a person who made a significant contribution. And it's not the contribution that lots and lots of people like you and me would have asked him for. We all wanted more. It's a great deal more than any of his colleagues

in the Senate have done. That is his colleagues in the Republican caucus in the Senate. Let me ask you this, Ben. What more would you have liked him to have done? He was the first United States senator in history to vote to impeach a president of his own party, and he did it not once, but twice. Right. So, I don't, first of all, I mean this in praise, not in criticism. You know, if you listen to the Bulwark podcast or the Next level on a regular basis, you often hear people asking, you know, where was Mitt Romney on this vote, right? And, you know, there were a lot of things on which he was criticized for siding with Trump, right? Particularly on policy matters, and people always noted his voting record. Unlike Liz Cheney, he did not devote himself single-mindedly to the war against Trump and all his works in the Republican caucus, which is, by the way, one reason he had more longevity, right? He was more diverse in his

interests and consequently less single-mindedly obsessed. And some people found that frustrating. I want to say in his praise, first of all, the longevity is partly a virtue, right? He was elected to a six-year term. He has been an effective senator. He has been a key vote on important matters, including in that first impeachment being the only or one of the only Republicans to vote for conviction. The first one, only one. Yeah, he was symbolically quite significant. I thought a number of his speeches have been really terrific. And so, look, this is a person who made a significant contribution, and that's the big picture. And I think he, at a time when a huge number of people kept quiet, never kept quiet about what he thought on the big picture. And that was part of his running for that office. It was part of his service in that

office, and it's part of his departure from that office. I mean, I know you're being positive, but when you think about how really unusual, just run the tape back to the mid-2000s and try to think about what role would Mitt Romney play? It was certainly not inevitable that Mitt Romney would be the conscience of the party, especially when we've seen so many of these other invasions of the body snatchers, so many other Republicans caving in. And Mitt had his stiffness and his sort of wonkiness. Well, and also there was a time that we thought of Mitt Romney as the opportunist candidate, right? He was the guy who flip-flopped on abortion rights in order to be the Republican nominee. He, you know, became, I think his words were severely conservative when he had been quite a moderate Republican governor. He was somebody who

people did not think of as in the language of like the conscience of the party. He was a- Right, not back then. No. And you're right. You know, all of those years, and I'm thinking back on all of that, he was not really comfortable in his own skin. He was not comfortable in the role that he was playing. So the last few years, I think, is when he really came into his own, a man in his mid-70s. And you can tell the level of his conviction about what Donald Trump represented. I mean, he made the warning back in 2016 in a rather extraordinary speech. It was, of course, too late to change things. I mean, I guess, you know, when I say that it's unexpected, it's like, you think your life is going to have a certain narrative. You think this is the meaning of my

career. And then at the end of it, you look back and you go, no, all of that was kind of a run-up to this. And what is also interesting is that he's clearly, even though he's leaving the Senate, he's not done because now comes the verdict of history. And clearly, he has a story to tell. He's trying to figure out what he did, his own role. He's got thoughts about the fragility of democratic institutions. And so this is kind of his moment. And again, I never really thought of him as a particularly strong and courageous leader, but I think that a lot of us underestimated that whole Mormon thing. And please don't misunderstand me about this, but the intensity of his integrity and the focus on doing what is right, that I think we kind of, sometimes we think is a little corny or we roll our eyes about

it. But then you see him sitting next to people like Josh Hawley and Ted Cruz and Ron Johnson and J.D. Vance. And you realize, you know, oh, yeah, that's what a good, decent man looks like. That's what a statesman looks like. That's somebody who actually goes into public service because he wants to do good things as opposed to the performative bullshit that has now become the norm in the United States Senate. So I think it's also just the underappreciated virtues that he brought that has brought him to this moment. Yeah, so I would agree with all of that. I'd put a little asterisk on the Mormon thing, just because his co-senator, Mike Lee, also a member of the church, has shown none of the same virtues. So, I don't want to overstate the religious dimension of it. I do want to focus on the

decency dimension. I forget who it was who said of Gerald Ford when he died, everybody always used to say he was a decent man, but, and the gravamen of the sentence would come after the but, and that was wrong. The relevant part of the sentence was before the but. And, you know, that's actually the way I feel about Mitt Romney, that at the end of the day, in a society in which decency is a depleting commodity that is ever more valuable, the fact that whatever your criticisms of him, they come after the but. He is a decent man. Whenever the war becomes a war for or against decency, he is generally on the right side of that, and that is more important than any criticism one ever might have of him.

When I was writing up my newsletter this morning, I was going over my notes, and I realized, and I think I had forgotten this, the very first piece I wrote for the Bulwark when we founded it back in January 2019 was about Mitt Romney. And the headline was what Romney exposed about late-stage Trumpism. I thought it was late-stage back then, but, you know, who knows? And we remember he was coming into office, and the first thing he did was to write this op-ed piece for the Washington Post, you know, saying that to a great degree, a presidency shapes the public character of the nation. A presidency unite us and inspire us to follow our better angels. I mean, it was a shot at Donald Trump. What I thought was

so interesting back then was back in the before times, the whole argument would not have been very controversial. It was kind of a boilerplate, you know, restatement of what conservatives, you know, claim to believe about character for decades. But what was really interesting to me was the blowback from Trump supporters attacking Mitt Romney for even suggesting that character was a factor, that it was not just about policies and appointments. And I wrote at the time, you know, Mitt Romney had performed a useful service because he brought out this reaction and he exposed the extent to which the acceptance of Trump's character hardened from tactical improvisation into habit. And this habit has now become full-blown intellectual justification. So I think that he was a little surprised by the fact that this restatement of

conservative principles was met with a kind of blowback, but it was kind of an indication of where we're going. And the thing about Mitt Romney, and I'm sorry to go on about him, is that, you know, time and again, he was the only member of the Senate who would stand up and call Donald Trump out. And I guess the question now is, you know, how will history remember him? And I know that this has become very unfashionable in Washington. Remind me, Ben, was it Bill Barr who was asked about his legacy and he says he doesn't care about that because he'd be dead anyway? Wasn't that a strange sort of, you know, flex? A lot of these guys obviously care about winning the next news cycle.

They don't care about history. I do think there's a chance, a very good chance, that Mitt Romney is going to really stand out. In the same way that, say, Margaret Chase Smith, who denounced McCarthy when everybody else was cowering in the cloakroom, the way that she is remembered by history. I think there's a very real chance that Mitt Romney's role is going to look a lot better than, shall we say, Paul Ryan's or Mitch McConnell's or Josh Hawley's. What do you think? I think that's the wrong standard. Okay. Because those guys are going to be remembered as flaccid capitulators in the face of evil.

I certainly hope so. Right, and so I think history will be extremely unkind to them, and it will not be extremely unkind to Mitt Romney. The question, and I think the, is whether it will remember Mitt Romney as a kind of well-meaning but ultimately ineffectual flailer, right? Who said the right things when it mattered, cast some courageous votes, but ultimately was completely ineffective. Or whether it will remember him as somebody who planted a very principled flag on the most important issue of the day. He did not prevail on that. He got kind of run over by the stampede of history, but the planting of that flag was important. There's a group of people in the Senate. Jeff Flake is one, again, already mostly forgotten.

Bill Cassidy, to some degree, has a claim on this, but Mitt Romney has a certain pride of place among these. And unlike, you know, Ted Cruz, who said, you know, vote your conscience at the Republican convention and then seemed to have misplaced his, you know, vote your conscience at the Republican convention and then seemed to have misplaced his, you know, he really did never waver on the most important issue of the day. And so I think there's an interesting question whether he will be remembered sort of along with Jeff Flake as somebody who sort of ineffectually waved his hands, or whether he's a kind of closer to Margaret J. Smith or from a different era, a William Lloyd Garrison, right, who's somebody who was a fixture of what in his time was a losing cause. I think you're right, and I do stand corrected there, and I think that's

one of the things that we're seeing right now is that he clearly is thinking about this verdict of history, which is why he is cooperating with this book and speaking out in the way that he is. Because I think he does understand, you know, that history is written by the people who write the history, right? I mean, it's like, he needs to make this case. And by the way, a couple of the passages from McKay Coppin's article really stood out to me, including his fixation and even his obsession about historical patterns. And Coppin tells a story about how Romney, shortly after he moved into his Senate office, hung this big rectangular map on the wall. It was his Rand McNally histo map, and it attempted to chart the rise and fall of, you know, the world's most powerful civilizations through 4,000 years of human history. And he writes, when Romney first acquired the map,

he saw it as a curiosity. But after January 6th, he became obsessed with it. He showed the map to visitors, brought it up in conversations and speeches. More than once, he found himself staring at it alone in his office at night. The Egyptian empire had reigned for some 900 years before it was overtaken by the Assyrians, then the Persians, the Romans, the Mongolians, the Turks. Each civilization had its turn and eventually collapsed in on itself. Maybe the falls were inevitable, but what struck Romney most about the map was how thoroughly it was dominated by tyrants of some kind, pharaohs, emperors, kaisers, kings. Direct quote here. A man gets some people around him and begins to

oppress and dominate others. He said the first time he showed me the map, it's a testosterone related phenomenon, perhaps. I don't know. But in the history of the world, that's what happens. America's experiment in self-rule is fighting against human nature. And then there's this quote. This is a very fragile thing, he told me. Authoritarianism is like a gargoyle lurking over the cathedral, ready to pounce. And there's a man who is looking at this, the broad sweep of history, and recognizing how fragile and contingent what we have thought of as our sort of exceptional immunity from history. Yeah. So I want to say, first of all, that it

amazes me that so many of his colleagues don't think about it this way. Right. Okay. I agree. Yeah. To use the one you're sort of obsessed with, Paul Ryan, he genuinely does not seem to understand that he's not one of the good guys and that you can't be the Speaker of the House and focus on, well, I can get some tax cuts out of this and some sort of regulatory reforms. You know, you are at some level confronted, not even at some level, pretty directly by the problem of authoritarianism and evil. And if you're not standing against that as a political figure, you are enabling it.

And in a hundred ways, Paul Ryan enabled it and doesn't seem to understand that and seems to sort of make a kind of fetish of the times he put a stop on something or made something not happen or ameliorated something and then leaves to go be on Fox's board of directors, you know, to help cover for defamation of Dominion voting systems and Shea Moss and Ruby Freeman, and never seems to take a step back and say, where am I on that map? Right? Am I the guy next to some Kaiser who's enabling the oppression of people, or am I part of the defense of that fragile thing? And I find it unbelievable that it's a sort of singular thing on Mitt Romney's part that he has that map on the wall, and he's thinking about it in big picture terms. This is exactly the reason I'm bringing this up, because it is singular. You would think that this would be natural. And for a guy like Paul Ryan, who is very intelligent, and, you know, has had time to think about what

happened to him, he paid a tremendous price about it. And yet you're right. And I wrote that open letter to him in Politico saying, you know, if not now, then when? You know, think about what is your legacy? You know, what are you, you know, keeping your powder dry for, if not this, if not this moment? And in this Romney book, though, this is a pretty devastating anecdote. So he tells the story after he decided, very reluctantly, as it turns out, to vote to convict Donald Trump for trying to shake down the president of Ukraine. He was the only Republican senator to vote to convict. He was the first senator in U.S. history to vote to convict a president of his own party. So the word gets out, apparently leaks out to Paul Ryan that Romney's going to do this. Ryan then calls him, calls him

on the phone to try to talk him out of it, to lobby on Trump's behalf. So McKay Coppins writes, Romney had been less judgmental of Ryan's acquiescence to Trump than he'd been of most other Republicans. He believed Ryan was a sincere guy who'd simply misjudged Trump. But here was Ryan on the phone making the same arguments Romney had heard from some of his more calculating colleagues. Ryan told him that voting to convict Trump would make Romney an outcast in the party, that many of the people who tried to get him elected president would never speak to him again, and that he would struggle to pass any meaningful legislation. Ryan said he respected Romney and wanted to make absolutely sure that he thought through the repercussions of his vote. Romney assured him that he had and said goodbye.

Wow. So there you have Paul Ryan. He's already out of power. He's not speaker. He's got nothing on the table and he's lobbying and he's whispering in the ear to Mitt Romney, don't show the kind of courage that I failed to show. You should make the same calculation that I and other Republicans have made again and again and again. And I had to say that as somebody that's known Paul Ryan for years, that was one of those, oh, God, moments, just reading that. But you're right. It kind of tells you everything. It's that one of these people is the kind of person who has that map on his wall and ponders it, and the other is not. Yeah, the other is thinking like, okay, I got to go to the Fox board meeting, and I certainly don't want to answer questions about

this. Okay, so going back to now our theme of the Trump trials, there is a relationship because there's a lot about January 6th and what went on, and he tells the story of a text message that Mitt Romney sent to Mitch McConnell a few days before the violent attack on the Capitol. This is what Romney wrote. And again, imagine you're Mitch McConnell and you get this text. In case you have not heard this, I just got a call from Angus King, who said he had spoken with a senior official at the Pentagon who reports that they are seeing very disturbing social media traffic regarding the protest planned on the 6th. There are calls to burn down your home, Mitch, to smuggle guns into

D.C. and to storm the Capitol. I hope that sufficient security plans are in place, but I am concerned that the instigator, the president, is the one who commands the reinforcements the D.C. and Capitol Police might require. And then Coppins notes in one very short sentence, McConnell never responded. So that's stunning on a whole number of levels, but it also does raise the question, you know, how did law enforcement and how do people like Mitch McConnell, but he was not alone. And in fact, anybody who was following social media carefully in the days before January 6th knew that there was going to be an attempt to storm the Capitol because there was a trending hashtag that was hashtag storm the Capitol. I remember the night before this is the fifth, but this is back when I used to do this daily live show on YouTube in lieu of fun. We had

a conversation with, it was me and Steve Vladek. I think maybe Pete Strzok was there. And we were talking about whether there was going to be an attempt tomorrow to storm the Capitol. And we all got one big thing right, which was that they seemed to be going to try it. We also got one big thing wrong, which was that the Capitol Police were very prepared for this sort of thing, and they were very unlikely to get very far with the effort. But that there was going to be an effort to storm the Capitol was available to anybody who wanted to know it. And I say that as somebody who, you know, literally contemplated it in public on January 5th. And this brings me to a hobby horse of mine that has bothered me ever since then, which is that the FBI has gotten a real free ride for frankly not telling the truth about its

intelligence failure in this regard. Chris Wray and Jill Sanborn, who was the deputy director or the assistant director for national security, went up to Congress and, you know, said a bunch of things that I think are very questionable in terms of the FBI's preparedness and its authorities in defense of their organization's performance in the run-up to January 6th. And nobody calls them on it. And why does nobody call them on it? And I think there's a bipartisan agreement to let the FBI get away with this. And the reason is that Republicans want to pretend the whole thing didn't happen at all. And Democrats want to focus on Donald Trump. And I agree with the focus on Donald Trump, by the way, but there are still institutional failures that let it

happen. And one of them was the failure to read social media and create operational plans in response. And that was fundamentally a Bureau failure. You can get it from our tread experts. Ensure each winter trip is a safe one for your family. Enjoy them for years with a Michelin X-Ice snow tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin tread experts dealer near you at treadexperts.ca slash locations. From tires to auto repair, we're always there at treadexperts.ca. This message comes from BetterHelp. 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 dot com. All right, so I want to come back a little bit later.

I want to loop back on the Republican counter-programming on Joe Biden. But since this podcast is devoted to the Trump trial, let's talk about the Trump trials for at least a little while here. So just this morning, as you and I were beginning to record this podcast, the judge in Georgia has ordered that both Kenneth Cheeseborough and Sidney Powell will be tried separately. He did break them up, but he did not separate them from one another. What is your take on this? What is the significance? Because clearly it was in Funny Willis's interest to have all 19 defendants tried at the same time. So how does this affect your case that Cheeseborough and Sidney Powell go first? Right. So first of all, why did he separate them? And the answer is he separated them because they

are invoking their speedy trial rights, which means they are, unless something intervenes, going to go to trial next month. And everybody else is objecting to going to trial that fast. And so there is a kind of irreconcilable divergence of interests among the defendants, and they also wanted to be tried separately from each other. He's denied them that, so she now has a trial of two people that is going to start next month, and then a trial of 17 people, including the former president, which can start at a more convenient or more relaxed trial schedule. Given that, there's another reason why these guys had to be severed from the rest, which is that there is still an ongoing federal court fight over whether to remove the larger

case from Fulton County Court into federal court. That now has been decided by the district court, but it's going to go up probably to the Supreme Court for resolution. And given that these guys have invoked their speedy trial rights and need to go to trial next month, there's no way that's going to be resolved in time to do that. So that's why they've separated it. What does it mean? It means that Fannie Willis has to present what she imagines to be a four-month trial twice, at least, assuming nobody else gets severed. That means she'll have to present it once as a sort of practice run with Ken Chisbrough and Sidney Powell, and then she'll have to present it again.

So this is actually bad news for her because anytime you present a case once, you got to drag all the witnesses in. If there are any discrepancies between the way the witnesses testify the first time and the second time, that gives the defense some material to work with. They also, frankly, get a real preview of the case because it's going to be presented the first time. Now, one thing that is important to remember here, of course, is the fact that a trial is scheduled does not mean that it happens, right? You could imagine one or both of these defendants pleading out, although these two strike me as two of the defendants less likely to plead out for reasons we can talk about, if you want. All right, so since you and I spoke last week, we had a rather unusual development, that release of the full report from the special purpose grand jury that's

been more than seven months, you know, investigating the efforts to overturn the election. And your colleague, Anna Bauer, laid out over at Lawfare, the document is, of course, you know, less dramatic than the indictment, but it includes the list of charges that the special grand jurors recommended against a long list of possible defendants, which Fannie Willis did not feel compelled to actually indict. Now, let's just make the note, Ben, this is very unusual, isn't it? To see the notes from a grand jury, to hear the names of people who were investigated but not indicted, this is not the way it usually plays out with grand juries, correct? Well, it's not the way it ever plays out in the federal system.

Yeah, the federal system. And to give you an example of how unusual it is, a few years ago, some colleagues and I decided to try to get the federal grand jury's report to Congress from the Watergate era, the actual impeachment referral that special prosecutor Jaworski sent up to Congress about Richard Nixon. And this had been under seal for, you know, 50 years because of federal grand jury secrecy. we went to court and finally got it unsealed after many, many, many decades at this point. That's federal grand jury secrecy. Georgia grand jury secrecy is a whole different animal, and it's much more relaxed, and there's a whole lot of things that are

presumptively protected by federal criminal law at the federal level that are public in Georgia. One of them is the names of grand jurors, which is mind-boggling to me, because it really involves the safety of people who get dragooned into court service. Another one of them is special grand jury reports, which become public in the Georgia system as a matter of something close to routine. And so we have known that this report was going to be public at some point since the day that special grand jury was convened, because that's the way the Georgia system works. So let's just talk about some of those names that popped up in this report. I mean, obviously, there were, you know, the charges against the current defendants,

but the list of people who were not indicted, awfully interesting. Lindsey Graham, Michael Flynn, former Senators David Perdue and Kelly Loeffler, and also some of the other counts that were not actually charged. For example, you know, during that Brad Raffensperger call, this special grand jury had recommended charging Trump with influencing witnesses, criminal solicitation to commit election fraud, election interference, and making false statements. And it turns out only one of their recommendations actually made it into the final indictment. Trump was charged under the statute that prohibits making false, fictitious, or fraudulent statements. And again,

among those allies who were in charge, you know, Graham, Flynn, Perdue, Loeffler, it looks like, tell me what your take is, that they might have avoided prosecution because, you know, while a majority of the jurors voted to charge them, there were a lot of no votes. And was this a signal to the DA that, hey, you know, these cases might result in a hung jury, or we might have a little bit more time. Give me your take on that, seeing the votes of the grand jurors. Like, should we indict Lindsey Graham on a felony? And the majority said yes. Seven said no, I think. Seven said no. I think that was a factor. As a general matter, if you look at the cases that didn't happen, with a few exceptions,

they tend to be cases where there were a substantial number of no votes. And so there may have been some signaling to the prosecutors there that these are going to be harder cases. There are some other factors as well. The indictment is primarily, it has other charges in it, but it is primarily telling a single story under the Georgia Rico statute, and she clearly focused on stuff that was within the bounds of that narrative. The other factor that I think particularly affected the senators, those were three sitting senators at the time, and there would be substantial speech and debate clause defenses that are not available to people who are not in Congress, speech and debate clause being an extremely powerful federal constitutional immunity that is currently protecting various members of

Congress from Jack Smith. You know, I think there was probably a calculation on the part of the Fulton County DA's office that, you know, we have a big enough fight that we're picking with the RICO doctrine alone. We don't need to have a war about the speech and debate clause immunity of senators. Your tread's worn down or you need a new wheel. Wherever you go, you can get it from our tread experts. Ensure each winter trip is a safe one for your family. Enjoy them for years with a Michelin X-Ice snow tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin tread experts dealer near you at treadexperts.ca slash locations. From tires to auto repair, we're always there at treadexperts.ca. dot ca slash locations. This message comes from BetterHelp. 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 dot com. Okay, let's switch gears. Let's talk about the documents case down in Florida.

On Wednesday, Judge Eileen Cannon finally entered a protective order governing disclosure of classified information during discovery. The government had filed a motion for the protective order back in July. Judge Cannon finally granted it. Andrew Weissman was on the social media site formerly known as Twitter saying it's unbelievable how long this has taken. The delay means government discovery could not go out until this was signed by the court. But she also rejected Trump's request to speak about classified documents outside of a SCIF, and she didn't grant his desire to have a SCIF facility down at Mar-a-Lago. Apparently, one of the things we learned was that Trump had 3,500 pages of documents at various classification levels. So how is that case

proceeding? What are you seeing from Judge Eileen Cannon? Well, so mostly what we're seeing is relatively little action and the slowness of this, and Andrew is absolutely right, entering a protective order is something that normally takes a couple days. And if you compare this with Judge Chutkin's conduct in D.C., where I think within the first week after the arraignment, they had a hearing on disputed issues with respect to the protective order, and she entered a protective order, right? This shouldn't be a complicated litigation that takes nearly two months to resolve. And so that's not a good sign regarding her case management ability. That said,

there's nothing really wrong with the protective order she entered. There's a few little oddities of it, but there's nothing terrible about it. And so mostly what you're seeing is that she's not ruling in a timely fashion, and that can have some significant negative implications. I still think it's too early to say this case is a disaster, but there are definitely some concerning signs in the way she's managing it. Well, in contrast, and you mentioned this, Judge Tanya Chutkan has been moving very, very quickly. And one of the big developments this week, of course, was Trump has moved formally to have Judge Chutkin recuse herself from the January 6th case based on

comments she made in other cases. And he cites the fact that Judge Chutkin had criticized a January 6th defendant during sentencing for having blind loyalty to, quote, one person who, by the way, remains free to this day. First of all, I mean, nobody expects that Judge Chutkan is going to recuse herself, but it is striking how aggressively Trump continues to attack the judge, both in the court papers and on social media. So give me your thoughts on this. Striking and, in my judgment, very foolish. Yeah. this? Striking and in my judgment, very foolish because Judge Chutkin is a former public defender. She is not somebody who is hostile to defendants' interests. She has been a tough sentencer in the January 6th cases, but we're nowhere near the sentencing phase of this right now. And if you're Donald Trump alienating

this particular judge, who is, by the way, not going to recuse herself, I think it's safe to predict. She's not going away. I'm not going to be forced to recuse herself either. I don't really understand what you get from that. It strikes me as a very foolish and self-defeating idea. I agree, except that, let me try this here, is that it makes no sense if we think of Donald Trump as a conventional defendant in a criminal case who has respect for the court and is really concerned about what happens in court. Donald Trump is waging a completely asymmetrical war here. I mean, first of all, because, you know, the courts can't fight back. This is part of his long

march through American institutions, discrediting any of them that challenge him. So we've seen the success he's had in discrediting the news media to the point where, you know, no matter what is reported, no matter what investigations are published, he and his supporters can simply dismiss them because they've been discredited. They have no credibility. Well, now, yes, conventionally, it makes no sense for him to be doing the things that he's doing. But I think that his agenda here is to do to the entire criminal justice system what he has done to other institutions, whether it was the deep state or any of his opponents, and that he is very, and I use the word consciously with an asterisk beside it, is trying to discredit the entire prosecution so that the people no longer trust juries, courts, judges, so that at the end of the day, when he is convicted of all of this, he will say,

see, it was rigged against me in the first place. And his supporters will say, well, yeah, why should we care about a federal judge or why should we care about a judge in D.C. or in Fulton County? this massive campaign of the destruction of the credibility of these institutions and the implications of that ban, I think are just massive because it's not just Donald Trump getting away with stuff. It's Donald Trump convincing an entire political party and tens of millions of Americans not to believe the evidence that they see, not to trust juries, not to trust prosecutors, not to trust the outcome of these trials. And I don't know how we come back from that if he succeeds. So you're certainly describing accurately the strategy. And I have no doubt that you are right that that's what he's doing.

But he's leaving a hole for Judge Eileen Cannon, right? He's not doing that to Judge Cannon. And actually, I don't think, I'm not sure, but has he attacked Judge McAfee in Fulton County? Not yet. Give it a minute. Right, sure. But my question is, like, you know, is the attack on the judge here because of anything she's actually done? Or is it just because she's a democratically appointed black woman? Well, I think there's a pattern in there as well. I mean, there's a reason why he has been so aggressive with Alvin Bragg, Fonny Willis, and Judge Chutkan. I mean, he knows how to pick his targets and his enemies. I think that's right. I think the only thing Judge Chutkan has done that he has a reason

to be upset about is that she's set a trial date in a relatively aggressive fashion. By the way, it's not that much more aggressive than Judge Cannon, who set one for a couple months later, but one of them is his appointment, one of them is an Obama appointee who's a Black woman. I think that's really the only difference. And I do think, you know, even if you're Donald Trump and you're not really capable of being strategic in your emotional response, there's something to be said for not publicly attacking somebody who can order you put in prison or locked up in jail while you're, you know, like there's a certain, like, we're going to have months and months and months of this. And I don't know whether judge Chutkin has the patience of a

saint or not, but if I were in front of her as a criminal defendant on bail, which is what he is, I would not necessarily want to, you know, be aggressive about finding out. I don't know. Like, I'm clearly not him. So yeah, mess around and find out. This is an indication, though, I think, and another tell about how radical the gamble that he's placing in this sort of Trump legal casino, which is that he's putting all of his hopes now in winning the election and making everything go away. Right. I mean, because if he's playing in the world of the criminal justice system, this is really stupid and it's very, very dangerous. So he's put all of his chips basically on, I'm going to overturn the board,

I'm going to be elected president and make everything go away. That is clearly what he's doing. Okay. Now, speaking of his strategy, not a surprise that he has been in close contact with House Republicans who this week announced, without a vote, an impeachment inquiry into Joe Biden. I was on a show yesterday with the historian John Meacham, who I thought had an interesting way of describing this. He said, basically, Trump and the Republicans have decided they needed some counter-programming.

Yes. Right? Because we're talking about all of the Trump trials, all of the indictments, all of this. So they figured, we need to have our own show. And so we're going to have the Trump impeachment show. You know, over the last couple of days, it was striking me to the extent to which the media narrative shifted from following the Trump trials to now, like, what's the impeachment going to be? What evidence do they have? So I think it's an open question about whether or not this counter-programming will accomplish what they want it to. Your thoughts, Matt? Again, this is getting into an area that is

political prognostication rather than anything that has to do with law. But let me just say that I think there's a problem with this strategy, which is if you're going to impeach him, you need to be able to write a document. It's called an article of impeachment. And it needs to be able to say that Joe Biden did something and that that something was a high crime and misdemeanor. And that we have this evidence that he did it. Or even if like you could, you could allege something falsely, right? But you got to be able to say Joe Biden did X and X is a high crime and misdemeanor. And I still don't understand what X is. I understand

that they could have an article of impeachment against Hunter Biden, but Hunter Biden isn't in an office and they can't impeach him. I understand that they really want to impeach Joe Biden, but you actually need this document. And I just don't know what it's going to say that 218 of them actually have to vote for. I think what the risk here for them is that they're setting up counter-programming that has no climactic scene, right? You just saw the climactic scene, which is Kevin McCarthy giving a press conference saying we're going to have an impeachment inquiry. But when they sit down to write the document that says Joe Biden, president of the United States, did X, and X is a high crime and misdemeanor, they're going to have writer's block.

Well, see, I am more cynical than you are, Ben. Or hang on, let me just tee it up for you. Or they're going to have this problem where you write it down, and then because it's clearly not true, you can't get your people to vote for it. Have you met these guys? But there are 30 of them whose votes they thought were unreliable for purposes of even starting this thing. So now you're going to accelerate it. You're going to get to the end of it, whatever it is, and you're going to have them vote. Some of them are in districts that Joe Biden won. And you're going to say you're going to vote for either a document that doesn't describe a high crime or misdemeanor, that doesn't describe Joe Biden's conduct, or that is factually false.

How does this work for them? Okay, so you're just saying that what will have to happen is they would have to be craven and stupid. I think they've demonstrated repeatedly that they're capable of doing that. No, I don't think that this is a smart move. This is not a move of political genius. Kevin McCarthy, real man of political genius, I think it's going to blow up in several ways. Number one, it shines a spotlight on their leading investigators who are clearly not ready for prime time. I mean, if you're a Democrat, I think you want as much attention and scrutiny on James Comer as possible because that guy is a hot mess. To that extent, these

hearings, they're not going to be like the January 6th committee because the Democrats are going to be there and they will offer very, very strong defenses of Joe Biden. And the people who have been pushing the conspiracy theories, this may sail on, say, Fox News or Newsmax, but I think it's going to be much more difficult, particularly if there's a lot of attention. And so, you know, some of the least competent, least able members of the House are going to become much more famous at a time when they don't want them to. That's number one. You mentioned the problem of the swing districts. So if Kevin McCarthy were in his great wisdom to decide that he has to cave into Matt Gaetz and Marjorie Taylor Greene and force a vote and make this a litmus test vote, he is forcing dozens,

potentially, of his own members to walk the plank. So in order to keep his job, to keep that hollow gavel this week, he's putting his entire majority at risk. And of course, then the larger picture is, and again, this may sound somewhat cynical, this throws Joe Biden a lifeline because, you know, there's been a lot of, you know, fetching about his age and polls suggesting, and polls suggesting weakness among the Democratic electoral base. Nothing focuses the mind to rally around as much as an impeachment like the one that Kevin McCarthy has just launched. So on so many levels, I think that this counter-programming is another example of that sort of short-term. They're playing checkers. They're

not thinking long term. They're not only not thinking about the verdict of history, they're not even thinking about the third move, fourth move, or what it's going to look like after they have closed the government and potentially crashed the economy. They're not even thinking how this was going to play out next March and April. These are folks that are just trying to get through today, right? It's not the verdict of history. They're not thinking about the verdict of next week. Exactly.

This is the problem, which kind of loops back to this original thing. You have Mitt Romney looking at the sweep of thousands of years of history, and you have the great mind of Kevin McCarthy thinking, how can I get through Thursday? Right. Was it Ken Buck who basically said, I haven't seen any evidence of a high crime and misdemeanor? They need his vote, right? They need the votes of a bunch of people like him. They do. You could really imagine that over the next three months, they contemplate or try the impeachment of the president with no evidence that he did anything wrong and shut down the government. And it's not really a, I don't know, it's not a record

that you'd want to run on. No. And, you know, again, you have to think that there are rational Republicans who are thinking, look, look at these poll numbers. We can win this election. Here are the issues that we would like to talk about. And yet they can't turn down the volume on the crazies. And so you have Kevin McCarthy, and I can't remember who said this, just made too many promises to too many, you know, lunatics in his own caucus. And even though clearly, you know, like you run on inflation, you run on this, you run on, you know, all of the things that a conventional political party will do. And yet where are they at? We're going to, you know, talk about Hunter Biden's laptop

endlessly while we're shutting down the government and then trying to convince the American people that we ought to be trusted with more power. I don't know. Let's stay out of the business of prognostication, but it doesn't seem like a genius move to me. It'll keep you and me busy. Which we will continue to be. Benjamin Wittes, thank you so much for joining me on the latest edition of The Trump Trials. We'll do this again next week, okay? I'm excited about it. All right. Thank you all for listening to week, okay? I'm excited about it. All right. Thank you all for listening to today's podcast. I'm Charlie Sykes. We will be back tomorrow. We'll be joined by a very special guest. The Bulwark Podcast is produced by Katie Cooper and engineered and

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