The Bulwark Podcast - Flooding the Zone

Episode Date: November 10, 2023

Jack Smith's office filed an epic motion this week laying out the central role of Trump's lies in the election subversion case. Meanwhile, the ex-POTUS will never just shut-up. Plus, the proper way to dispose of dog poop bags. Yes, you read that right. Ben Wittes joins Charlie Sykes for The Trump Trials. show notes Ben's piece from 2016: https://www.lawfaremedia.org/article/trump-and-powers-american-presidency-part-i 

If it's a flat or a squeal, a wobble or peel, 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 the 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 dealer near you at TreadExperts.ca slash locations. Landlord telling you to just put on another sweater when your apartment is below 21 degrees?

Are they suggesting you can just put a bucket under a leak in your ceiling? That's not good enough. Your Toronto apartment should be safe and well-maintained. If it isn't and your landlord isn't responding to maintenance requests, RentSafeTO can help. Learn more at toronto.ca slash RentSafeTO. Welcome to the Bulwark Podcast. I'm Charlie Sykes. It is Friday. And as you have undoubtedly noticed, the former president of the United States is spending a lot of time in court, which he will be doing over the next year. Donald Trump spent much of the week in a New

York courtroom. And of course, he still faces more than 90 felony charges. And this does seem relevant to the presidential race, except, of course, if you watch this week's Republican debate. OK, so Ben Wittes, Ben Wittes, who joins me on the Trump trial. How surreal is it to watch a debate in which the fact that the former president of the United States faces multiple felony charges? He's been accused by the federal government of violating the Espionage Act, absconding with war documents. He's facing racketeering charges in Georgia. He is facing charges of defrauding the federal government and obstruction. And yet it barely came up during the debate. I'm sorry. I keep coming back to all of this. We need to step back and go, hey, you know,

we're not the crazy ones. This is a bizarre moment we're living through. Yeah. I just want to say that I don't know how surreal it is, Charlie, because I made a decision Wednesday night that I didn't need to watch the debate. These are irrelevant people. If we had a high school debate about, you know, who should be president, you know, the captain of the football team versus the robotics team, I wouldn't go to that debate. And this dead or withdraws from it until then. Show me a poll in which somebody is within 20 points of him. Maybe I'll pay attention. But I don't know how surreal it was because I was blissfully not watching it. Well, but everything is surreal. I mean, the fact that he gets 60% of the Republican vote during all of this, during all of the actual Trump trial. I mean, I think there were people who believe,

well, when the actual trial would begin, when people actually see him, when he takes the stand and America gets to see the lizard brain in full blustering. So let's just start there. Should we just start with a rather remarkable moment? I know it's Friday, but this was this week that Donald Trump actually did something that a lot of people thought he would never do. He took the stand, testified under oath, and put on a Trumpian performance. So give me your read of how that went, what you saw. Yeah, so it was, first of all, pretty dramatic in the sense that he, you know, was uncareful. People like to say that when Trump actually testifies, he's careful with what he says. He was not careful with what he says. He

admitted that he basically was, you know, quite aware of and quite involved in the valuation process and directed it, which is, I think, a very damaging admission for his fraud defense. He also attacked the judge, which I'm not allowed to give anybody legal advice, strangers. When you're in front of a judge who's going to decide when you get to how much money you owe in fines, Don't attack the judge. It's a bad move. There are no good arguments for it. And he's clearly made the judgment insofar as he's strategizing

as opposed to emoting that he's already lost this case. The show is more valuable for him than any marginal value or damage that he could do to himself. I think that's really where we are. He's already lost in the sense that the judge has already found liability. There's just sort of evaluating the scope of it now. But I do think it is a warm-up for some of the criminal cases where... But they will never let him testify in those cases, will they? Well, so first of all, you assume it's up to them, right, as opposed to up to him. And secondly, you assume that the purpose is to avoid liability or conviction, whereas I think Trump's purpose in the criminal cases is to win

by winning the election and then making the cases go away. And so I agree that no sane lawyer would ever let him take the stand, but that assumes that this is being run by sane lawyers rather than by Donald Trump himself. And I think he will take the stand if he thinks it is valuable for the show. Okay, I take your point. Let's go back to the New York case, because we had this strange moment where the judge, Judge Arthur N. Gorham, used the word beseech. I beseech you to control Donald Trump. And then, of course, he didn't control Donald Trump. Donald Trump went on and blustered. Maybe the judge thought he would just sort of burn himself out. Give me your read on whether or not the judge handled that correctly. You know,

on the one hand, he's probably thinking, if I am too harsh on him, if I hold him to the same standard, I'd hold any other human being. I will look bad. He will score political points. I might be more vulnerable on appeal. On the other hand, he kind of let Donald Trump run rampant in that courtroom. So talk to him about that. He did. On the other hand, I'm quite sympathetic to the judge here. I do not think anything in your training as a superior court judge in the city of New York quite prepares you for something like this. And so I don't think it's a question with a right and wrong answer. The big problem that Judge N. Gorin has here is that we all know what he's going to do, which is he's going to find some massive liability for Trump. He's going to do something to dispose of his businesses that involves removing them from his control.

And you're doing that with the eyes of the entire world on you and your poor law clerk. And, you know, you want to do it in a way that minimizes the possibility that you're going to be reversed on appeal and have Trump claim a huge victory as a result of it. And so the judgment is clearly, let's first of all, be a bit permissive in terms of you don't want to give him the argument that I was unable to make my defense, that I was prohibited from doing X, Y, and Z. So you tolerate a certain amount of antics. Now, by the way, those antics all create a record, which you're going to write an opinion. And every one of those ignored I beseech you's becomes evidence you can use in the record.

And it also gives Letitia James a whole lot of arguments on appeal that the court was extremely tolerant. The court allowed Trump to do X, Y and Z. The only problem with it is that in the very short term, it allows Trump a certain amount of theatrical. He got to put on the show. I mean, look, I mean, before we move on here, clearly in Trump's lizard brain, he knows that he's lost the case. He's putting on the show for the MAGA base or for the appeal. But also knowing Donald Trump and knowing his track record, I wonder whether or not he actually thinks that behaving that way will browbeat and bully the judge. Because in the past, it's worked. If you push back, he's seen people cave in. And I wonder,

you know, in his calculation, to the sense that the word calculation applies here at all, which it really doesn't, you know, he's actually thinking, you know, when I punch people and I hit them and I insult them, I watch them cave and grovel. Maybe, maybe, maybe it will work again. It won't, but do you think that's part of his thinking in the lizard brain? Yeah. I don't know. His thinking is really opaque to me. And I like to think about it more as I can't get inside the brain. I can only predict behaviors kind of like a shark or a lizard, as you would say. I don't know what the shark is experiencing when it's going toward the school of fishes with that menacing expression on its face and absolutely no emotional valence. I can't get inside the shark's head, but I do know what the behavioral result is, right? I know. And that's

sort of the way I think about Trump. I don't really report to understand what he's thinking. I'm not a clinical psychologist. I do think it was very predictable that he would do this, and he did this. And I think he'll do it as much as any given judge will let him. The calculations are different in a civil case than they are in a criminal case where he's, you know, both in Florida and in Georgia and in Washington on supervised release from pretrial detention, right? Which is relevant, right? So I think the questions are quite different and probably the proper way to handle it for a judge may be also quite different. But I do think for a civil case in New York, a certain degree of tolerance makes a lot of sense.

Okay. I want to ask you about this. It's a tweet that went out a little while ago from Elise Stefanik. Okay, Elise Stefanik, who has become the super MAGA congresswoman who replaced Liz Cheney in Republican leadership. She just said, I just filed an official judicial complaint against Judge Arthur N. Gorin for his inappropriate bias and judicial intemperance in New York's disgraceful lawsuit against President Donald J. Trump and the Trump Organization. Americans are sick and tired of the blatant corruption by radical leftist judges in New York. All New Yorkers must speak out against the dangerous weaponized lawfare against President Trump. Read my full complaint below, and it is a complaint to the New York State Commission on Judicial Conduct, blah, blah, blah, blah, blah. Can I just translate this into English?

Before you do, I just want to announce that I have filed a House Ethics Committee complaint against Elise Stefanik for cultural appropriation of the word lawfare. Lawfare. I was thinking you were going to do that. I just want to put that on the record. That complaint has been filed. You can read the whole thing on my fictitious website. Yeah, yeah. Well, I'm just going to translate this into English. Elise Stefanik, I just filed an official complaint. No, what it should read is, I really, really want to be Donald Trump's running mate. I really, really want to run for vice president. And it might

actually work for her. Okay, before we get to what I thought was a rather epic filing by Jack Smith's team this week, the 79-page motion, which I kind of briefly excerpted in my Morning Shots newsletter, I want to take a step back to Donald Trump's continuing escalation of his threats to weaponize the Department of Justice and the FBI. I mean, in case there's any ambiguity about all of this. So earlier in the week, the Washington Post had a deep dive in the way that he's basically planning a campaign of revenge, that he will turn the Department of Justice against his political opponents and his critics, including people who had worked in his own administration, talking about perhaps prosecuting not just Mark Milley,

but General John Kelly, who is his chief of staff. Their crime being that they said bad things about him. So Washington Post has a story. Donald Trump intends to use the Department of Justice as a weapon of retribution. And today, he basically is confirming it. He gives this interview to Univision where he says that, yes, absolutely, I'm going to weaponize it. When they indicted me, they basically said that I can indict you. And so in a piece, people think that this is taken out of context or it's a gaffe or like, oh, you guys are exaggerating this. Here is Donald Trump again describing how he is going to go after his political opponents. Listen to this. We will start by exposing every last crime

committed by crooked Joe Biden, because now that he indicted me, we're allowed to look at him. But he did real bad things. We will restore law and order to our communities. And I will direct a completely overhauled DOJ to investigate every Marxist prosecutor in America for their illegal, racist, and reverse enforcement of the law. Ben, he keeps telling us who he is and what he's going to do, and I think it's completely plausible. Your thoughts about this? Well, so let me say that I published my thoughts about this back in May of 2016. That's a little bit ahead of the curve.

Yes. I think I was the first person to flag this issue. I'm just going to read what I wrote at the time. Let me be blunt. The soft spot in weaponization of the federal government is not the NSA, and it's not the drone program. The soft spot, the least tyrant-proof part of the government is the United States Department of Justice and the larger law enforcement and regulatory apparatus of the United States. The first reason you should fear a Donald

Trump presidency is what he would do with the ordinary enforcement functions of the federal government, not the most extraordinary ones. Did people think that you were being a little bit, oh, come on, Ben, it can't be that bad. We have norms. We have guardrails. So this was a three-part series that I wrote in 2016 called Trump and the Powers of the American Presidency. All three parts are still on Lawfare. One of them, the entire thing, is about the Justice Department and about the fact

that everybody's looking for these esoteric powers that Trump could abuse. Would he do domestic drone strikes and what's he going to do with blah, blah, blah. And the fact is that the ordinary powers of the government are extraordinarily powerful and dangerous if they're in the hands of sociopaths. I think at the time, the people who follow executive power issues carefully were quite sympathetic to the argument. It became obvious that it was right at the time of the Comey firing. It's one of those things that, once again, it's happening in broad daylight. It's not subtle. I mean, what was the common feature of every Trump rally in 2016? Lock her up. Lock her up. It's like, what do they mean by that? What could they mean? Right. Lock her up.

What does that suggest about his willingness to use the power of the government? So he's been telling us this consistently. Right. And there is only one defense against this. And it is a doozy, ultimately, but it's not good enough. So the one defense is that, look, you can say you're going to sick the Justice Department on Bill Barr, which, by the way, would have a certain cosmic justice to it, karmic justice. There's a karma there, a little bit of karma.

You can say that. But at the end of the day, if Bill Barr hasn't committed any crimes, the Justice Department, there's going to be a limit to what it can do, you know, and we saw that a little bit with John Durham, right? So John Durham could, you know, harass and ultimately indict people, but it took a jury a very short amount of time in two big cases to, you know, a matter of hours, not days to acquit people, not hang, but acquit. You know, I do think there is to some degree a limiting factor. Here's the problem. The problem is fighting off a federal investigation is a big, big headache. Most people don't have the resources to do it. You go after Bill Barr, who can spend $30,000 on a christmas party he's gonna be fine you go after some mid-level you know bureaucrat that is a big problem for that person and so i look you know that the justice department and the fbi are terrifyingly powerful institutions and that's why we have layers and layers and layers of protections, normative,

legal, and bureaucratic protections against their misuse. And what Trump has been promising since, you know, 2015, really, is to strip those away. He did that in a substantial way in his first term. Can he do that? What are his powers? I mean, in theory, right, as part of the executive branch, these norms and these limits, how vulnerable are they to a president who's figured out where the buttons and the levers are? Well, should I read to you further from my piece in 2016? I would be honored. The Justice Department has some institutional defenses against this sort of thing, but they are far weaker than the intelligence community's institutional defenses against abuse. They mostly do not reside in statute or in the sort of complex oversight structures that civil libertarians complain in the case of the NSA are not restrictive enough. They reside in the Levy guidelines, in certain normative rules

about contacts between the Justice Department and the White House, in norms that have developed over the years in the FBI, and they reside in the hearts of a lot of replaceable people. Ultimately, they reside in an institutional culture at the Justice Department, and that is precisely the sort of thing a tyrant leader can change. Okay, that was not reassuring, Ben. That was not reassuring in any way. I don't think it should be reassuring. I think the Justice Department, it works because it has a culture. And Trump is promising to change the culture. The first time Trump was elected, the day after the election, a very stressed young assistant United States attorney came into my office and told me he was planning to resign. This is a career person, not a political appointee. And I said, I don't think you should do that. We still need people to prosecute crimes. We still need. And he said, yeah, Ben, but I just can't imagine myself standing up in court and saying, I'm, insert name here, and I represent the United States when the federal

government is run by Donald Trump. Now, I and some other people persuaded this person not to resign at the time, but he did resign six months later and is now a prominent professor. And I think you will have a very significant exodus of career officials, which is, by the way, what Trump wants. Right. See, that's the dilemma. He wants the deep state to be hollowed out. He wants to make them all Schedule F fireable. And a lot of that stuff is doable. And I think also people's own professional interests don't lie in standing up in court and defending the indefensible. What's really, I think, dangerous about all of this is the people who would most likely say, I cannot work for Donald Trump, are A, the people of that culture, the people of

good character who understand the value of the independent. So in other words, the best are the ones most likely to leave if they're not fired. They're also likely to be the kinds of people who could walk out of the Department of Justice and actually increase their salaries someplace else. And so this is very real as a possibility that Donald Trump is basically saying, I'm going to get rid of the best and the brightest and the best and the brightest may say, we're not going to wait for you. We have options and we are not going to stay here and be complicit in what you were about to do. On the other hand, again, this is the ongoing debate. You need those people. If you're going to preserve

that culture, they have to stay. And yet the people who will uphold the culture are the ones most likely to be the most vulnerable and most likely to head for the exits. Shit. I think that's exactly right. And by the way, it's not something that will be visible to the public because when career law enforcement resign, when career assistant United States attorneys take jobs at Covington and Burling or Arnold and Porter, that's the normal trajectory anyway. And so if 5,000 of them do it six months to six years earlier than they would otherwise have done it. And by the way, it happens over time, not like instantaneously, right? So over time, you have a drainage of such people into the jobs that they will otherwise occupy. And they do tend to go into them anyway, because as their kids get

older, they have tuitions to pay and the salary differentials are immense here. And so, you know, then they go into these jobs a little bit faster or sometimes a lot faster. And by the way, the intake valves, the Justice Department Honors Program, the program in which you staff these positions with first rate people, many fewer first-rate people apply because who wants to go into the lock her up department, right? And so you have a quicker exit and a replacement with much lower quality people, and it's completely flat or a squeal, a wobble or peel, 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 slash locations. Slightly better news. I actually did read that 79-page motion from Jack Smith's team where they pushed back against Donald Trump's efforts to have the January 6th election subversion case thrown out. And a couple of things struck me about this is that, and this is perhaps not new and certainly not news to you, Jack Smith has really learned the lesson of the previous attempts to go after Donald Trump, including the Mueller investigation.

No disrespect to the Mueller investigation, but that was an asymmetric struggle between kind of an old school guy who thought that the old rules applied versus Donald Trump, who threw every piece of shit he possibly could, obstructed, attacked, vilified. And Mueller never said anything. It was much quieter. Jack Smith realizes what he's in for. And I am struck by reading this, how forceful the filings are, how direct and clear they are, one declarative sentence marches after another as he lays out the case, details and catalogs all the lies so precisely in actual comprehensible, vivid English, as opposed to the usual legal

gobbledygook and jargon. And what I really thought was interesting about the filing this week, it ties together why Donald Trump's lies are central to all of this. And even if he believed the election was stolen, even if he sincerely believed the big lie, that doesn't provide cover for all of the other little lies. And the lies are all the way down. So Jack Smith's team continues to impress. So one other reason to distinguish between the Mueller team and the Smith team, the Mueller team, of course, never ended up in litigation with Trump, right? And so you're sort of comparing the pre or non-indictment language of a report with the advocacy language of a brief. And Trump was president. He could have fired them at any

moment too. That's the other thing, right? I mean, there's a big difference there, you know? But you're also definitely right that Mueller is very old school. You know, how many interviews has Mueller given since he left office? None. You know, there's a very old school, you know, pardon me, WASP elite. This is the Robert Swan Mueller, right? Where you do your job, you do your duty, and then you disappear, and you comment in court. And it speaks for itself. It really speaks for itself. You know, Jack Smith, again, it's a different environment. He's actually in criminal litigation against the guy, but they are defending every step as they go. They are writing briefs that are with a real awareness that every single one of them is going to be read by

the press and talked about in environments like this. And Trump is, I think, in the impressive vernacular of Steve Bannon, is trying to flood the zone with shit. And so you have a, you know, a 79-page brief that is responding. It has two jobs, really, here. One is to respond to the motions, which are a series of motions to dismiss on various statutory and constitutional grounds, some of which arguments are, frankly, ridiculous, to create a clear record for Tanya Chutkin to rule on those motions. But the other is to signal to the public, this is flooding the zone with shit and we're not putting up with it. And maybe that's the key, is that he understands that he's got multiple audience, that it is the judge, but it's also there is the public and they're watching it. And they're creating a historical record. Well, and they're creating a record for the DC Circuit and ultimately the Supreme Court. And there are a whole lot of issues here, one of which has its own motion,

which is the most important one, the presidential immunity issue. That may go to the Supreme Court. There's nothing else here that is substantially colorable. There are some interesting obstruction questions under 1512, but most of this is just noise. And being able to say to the courts, hey, winnow this out, deal with the stuff that could be subject to immediate appeal, particularly the immunity stuff first, and the rest just signal to the public, we are really unworried about this. The evidence is overpowering and create a path for the courts to get rid of a lot of it. And I think they're doing a very good job with that. Okay, let's read a couple of things here. This was filed on Monday and it, you know, urges Judge Shutkin to sweep aside all of Trump's efforts to sanitize his conduct. This was written by Assistant Special Counsel James Pierce. He wrote,

the defendant attempts to rewrite the indictment, claiming that it charges him with wholly innocuous, perhaps even admirable conduct, sharing his opinions about election fraud and seeking election integrity, when in fact, it clearly describes the defendant's fraudulent use of knowingly false statements as weapons in furtherance of his criminal plan. And it lays out, you know, all of, you know, the fact that the indictment is full of Trump's claims of election fraud as knowing lies, so that it's not just whether the election was stolen, but the specific lies that it goes through. Prosecutors are now also signaling they're paying attention to what he's doing in real time. Prosecutors will use his pardon promises. They will use his decision

to record the Star Spangled Banner with the January 6th inmates and the false slates of presidential electors as evidence. Here's more from Pierce. The defendant stands alone in American history for his alleged crimes. No other president has engaged in conspiracy and construction to overturn valid election results and illegitimately retain power. See, that's what I found so powerful about how clear this is and brushing aside the everyone does it. I was just expressing my opinion. And as a non-lawyer, I thought it was very interesting, the analogy they used saying, you know, if there's a business executive who subjectively believes that his company is going

to succeed, right, believes that his company is going to be profitable, that does not give him license, him or her license then, to engage in fraud and to use knowingly false statements out there, even though their intent may be based on their subjective beliefs. So they explain it in ways that I think that the American public can understand if the American public is paying any attention. Trump's strategic objectives, or rather Trump's lawyer's strategic objective in these briefs, is to zoom out to a level of altitude where you can say, well, he was just giving a speech. And presidents give speeches all the time. All the time, right. Or he was just calling state officials to express his opinion, and presidents do that all the time. Oh, and no specific words that he said constitute an incitement within the meaning of incitement law. always here to remind that the same words can be criminal or First Amendment protected

entirely depending on context. So if I say to you, Charlie, that's a nice house, it would be a shame if something happened to it. If I'm Don Corleone, that is a threat, right? A true threat. If I'm an insurance salesman trying to sell you a policy, an insurance policy, that's a perfectly valid and constitutionally protected- But a different context. If I say to you, Charlie, I have a bridge to sell you, please transfer the entire contents of your bank account to mine, and I am trying to defraud you of your money, that is a crime. We're in different states, so we're communicating by wire here. That would be classic wire fraud. On the other hand, if I'm a comedian saying, well, if you believe that, transfer me all your money. I've got a bridge to sell you.

You know, it might not be a good joke, but it's clearly constitutionally protected. And so, you know, the job of the prosecutors here is constantly to keep the courts and the public focused on the meaning and purpose of what he was trying to do and the voluminous evidence of that, rather than on what are the specific words that he spoke and have other presidents said something like that at some other time in some other context. That's important to keep in mind. Speaking of the nesting doll of lies, I really liked, for example, the way they just sort of went through it and say, you know, whatever you believe about whether the election was rigged, it doesn't change the fact that these statements, and they list them, you know, one after another, are lies. And you knew they were like, Timothy McVeigh earnestly believed that, you know, the federal government had

murdered innocent women and children at Waco, and it was all because of the Jews and the, that the people, that doesn't mean it's not murder when you blow up a federal building. So look at these things. There's like five or six of them. The claim that 36,000 non-citizens had voted in Arizona. Donald Trump said it is a total lie that more than 10,300 dead people had voted in Georgia. Total lie that there had been an illicit dump of more than 100,000 ballots in Detroit. Totally false. That there had been 205,000 more votes than voters in Pennsylvania. Now, by the way, the prosecutor has, and the January 6th committee, has specific tape and testimony of people who say, you know, this came up and I told him this was not true. Bill Barr, his own attorney

general, told him this was not true about Bill Barr, his own attorney general, told him this was not true about Pennsylvania, for example, in Georgia, that there had been tens of thousands of unlawful votes in Wisconsin, no evidence whatsoever, that voting machines in various contested states had switched votes from the defendant to Biden. This is the Dominion lawsuit, which to say that there's a lot of evidence showing that all of those allegations about Dominion were bullshit, it has been pretty well established and it cost Fox News $787 million. So this is what they're honing into, is that Trump wants to litigate whether his belief about the overall election is somehow consciously protected free speech, as you point out, but that does not provide cover for these very clearly palpable and provably false statements that he made as

part of his effort to overturn the election. can get a pro at Tread Experts. Ensure each winter trip is a safe one for your family. Enjoy them for years with a Michelin X-Ice snow tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin Tread Experts dealer near you at treadexperts.ca slash locations. From tires to auto repair, we're always there at treadexperts.ca. Okay, Ben, one last comment before I ask you the most important question of the day. Eileen Cannon down in Florida ruled today that she's not delaying the trial, but she's going to be hearing motions in March. Give me your sense of what she is doing because she seems to be dragging her feet. And I think a lot of the observers are just sort of assuming that Eileen

Cannon is just going to punt this thing after the election as Trump wants. What do you think? So I think there's a huge amount of reason to be suspicious of Eileen Cannon. She is not, well, on one very public issue, she was not a straight shooter. I think there are a lot of reasons to be suspicious of her handling of this case so far. That said, I think this decision is the right decision, which is to say, if the D.C. case is really going to trial on March 5th, which Judge Chutkin wants it to, the government really wants it to, and it seems on track to do, then it is implausible that she can actually hold the trial in May in Florida, because the trial in Washington is going to take some serious time. And so I think keeping the date on the books for now and saying, we're going to try to be prepared to go to trial, I believe it's

May 25th, I forget what the exact date, but sometime in May, we're going to try to be prepared to go to trial. I believe it's May 25th. I forget what the exact date, but sometime in May, we're going to try to be prepared to do that. But we're going to hear motions at the time of, you know, to delay, you know, if that's appropriate in connection, we're going to keep our eye on Washington. I think that's sort of the only thing she can do here. The problem that we're going to have with Eileen Cannon is that she is really dragging her feet on the classified information litigation. There's a huge amount of classified discovery in this case, and she is not moving with alacrity to resolve classification issues. And that's going to end up forcing her, if she doesn't speed up and get a fire lit under her butt, that's going to end up forcing her if she doesn't speed up and, you know, get a fire lit under her butt. That's going to force her at the end of the day to postpone the case, which,

you know, may be what she wants anyway. So I think this was a pretty reasonable disposition of this issue, but I'm still very suspicious of the way she's handling the matter. Okay, so trigger warning for those of you that just want to obsess about Trump's trials. You can move on now because we're going to move on to... Well, we're going to flood the zone with shit. We are going to flood the zone with shit. We really are. For people who know that Ben has a daily newsletter, the Dog Shirt Daily, which this week was changed to the Dog shit daily because there was an incident and there's an issue

involving the disposal of, shall we say, dog waste in the District of Columbia. What is neighborly? What is not neighborly? I know you're running a poll. We'll get to the poll results later. Who do you agree with? Ben Wittes, his neighborhood Karen, the shit-throwing woman. So tell me what happened in your own words, Ben. Yeah, so what happened was I unknowingly violated a D.C. city ordinance. No, no, no. Don't get to the ordinance. I just want to know what happened.

Tell me the facts. I want to stick to the facts, Mr. Wittes. All right. I was taking my dogs for a walk. One of them did his business in an alley where we often walk. Defecated. Yes. Canine defecation.

Number two. An act of canine defecation. Okay, okay. I picked it up and I deposited the bag. In what? I'm sorry, Mr. Wittes, be more specific. In a poop bag. A poop bag.

Green poop bag? Green poop bag. And I tied it off and I put it in a trash barrel that I was walking by, you know, in DC, a lot of alleys have, you know, there were people have their trash barrels where the trash truck comes. And so I put it in and I went off listening to Yasha Monk's new book as I walked with my dogs and a woman. Is your claim, by the way, that you were distracted by Yasha Monk's book when you placed the dog defecation in the- No, no, no, no, no. This is not part of your defense, right? I do that every day. No, no. My defense is simply- We're not blaming Yasha Monk. Okay.

I mean, most things are Yasha Monk's fault, but- Well, I know. But the relevance of Yasha Monk's book was really that I didn't notice. I was aware that a woman was shouting. I didn't really notice that she was shouting at me because I was listening to Yasha talk about Foucault. And so I was like thinking about Yasha and Foucault. A woman is yelling at you about dog shit while you are listening to a discussion of Foucault. Okay. Exactly. And so all of a sudden it penetrates my head that she's yelling at me because I hear her yell, other people's garbage. And I turn around over my left shoulder and there's this woman halfway down the block with a poop bag of dog shit.

Your poop bag? Well, I assume so. Okay. That she's fished out of her trash barrel, which I had put it in, and she hurls it at me. She throws the bag of dog shit at you? Yes, dogs. When I say flood the zone with shit. Did she say words that sounded like Foucault?

No, she said, take it to the park and dispose of it in a public barrel. And she throws it at me and then storms off back into her yard. And I am left with half a block between us and a bag of dog shit in between, thinking, well, first of all, all of these garbage cans are kind of public property. They're the city's garbage cans. So the legal question is, did you have, under DC law, the right to place this dog shitbag in her... The answer is no. I later looked it up.

DC law is on her side. The DC government calls my conduct illegal and unneighborly. It even makes a moral judgment about it. So I stand condemned in the eyes of the D.C. government. And yet I sort of think the Karen was more the asshole here than I was. I was, after all, throwing trash in a trash can and she was throwing dog shit at a stranger. But OK, I acknowledge I was in the wrong legally. So the law sides with the woman hurling shit at you. Yeah, well, at least as to my conduct.

I don't know if the law has anything to say about throwing dog shit at people. I think that may be an assault. So I put up a poll on Dog Shirt Daily under the headline Dog Shit Daily. Who's the asshole in this story? And I want to just announce the results. What are the choices before we? So Wittes is the asshole. The Karen is the asshole.

The Karen is mostly the asshole. Wittes is mostly the asshole. Both are equally assholes are your options. So results. Do you want the results in the form most favorable to Wittes or least favorable to Wittes? You choose. It's your shitty poll. All right. I'm going to do both. So if you are friendly to Wittes, you will notice in this poll, this poll is like a Rorschach test. Only 8% said I was the asshole. Now these are your readers, right? These are your people, though.

Okay, so it's a little bit skewed, right? Granted, it is not a random segment. These are people that actually subscribe to your newsletter who read you every day. Okay, I just want to put that in context here. I don't think the Karen wrote it up in her newsletter, but just the Karen is the asshole got 20%. Okay. So I beat her by 12%. Okay.

So on the mostly the asshole, I got 12% and the Karen got 35% and the equal assholes were 25%. So it's really quite a bell curve spread. Yeah. So, but here's the bad news for you if you're friendly to Wittes. So this is my, as you point out, a readership that can be expected to be disproportionately friendly to Wittis. And if you sum up the, I am the asshole, the Wittis is the asshole, the Wittis is mostly the asshole, that's 20%. And the both are equally the assholes, that's 25%. So if you sum up the group that says, I am at least as much to fault as the Karen, that is 45%, which is suspiciously like Joe Biden's approval numbers, I just want to point out. And so a huge percentage of the audience, 45% thinks of my audience thinks I'm at least as much of the asshole. So I am thinking that a large

portion of those people are not dog owners or do not walk dogs because this seems very harsh. It seems very judgmental from folks that do not understand the difficulty of dealing with dogs and dealing with those green poop bags. I mean, if you've actually dealt with the green poop bags, I think you're going to be a little bit more, a little kinder and gentler in your analysis of your behavior. Like, I understand that people have strong feelings about this. And now that I know that DC law is on the Karen side, I will, starting yesterday,

have been carrying the poop bags to my can or to some public can. Fine, whatever. It's not the biggest problem in the world. I got to say, getting mad at people for throwing garbage in garbage cans, because it's not like, you know, some of the ones in our neighborhood smell great and some smell bad. It just, it strikes me as a ridiculous thing to get upset about. And however upset you are, throwing dog shit at your neighbors seems like an overreaction to me. But I accept that 45% of my readers hold me at least 50% accountable for this. And I will only just say my revenge against that 45% will be swift and terrible. And we will all await it. Ben? We're going to assign the Justice Department to it. I'm going to run for president.

Retribution. So that I can, I am your retribution. Ben, thank you for the analysis and for the sharing. I appreciate it very much. We will be back next week with or without dog shit, and we will do this all over again. And if there's any fallout, if you ever run into the Karen again, make sure you let us know. Will you please? I'm never walking by her house without a camera again. I wonder if Karen has a newsletter and whether she put up an online poll on this, what the results would be. I suspect she does not and did not, because I got to say, as humbled as

I am to find out that my activity is illegal and unneighborly according to my government, I suspect if she had to describe her behavior, she would be more embarrassed than I. Yeah. See, I'm just guessing that given your neighborhood and stuff that, you know, it's possible she'll turn out to be like an assistant secretary of state or something like that. It is possible. Right. This could have been a federal judge. You just never know. Thanks so much. Thank everybody for listening to this weekend's Bulwark Podcast. I'm Charlie Sykes. We will be back on Monday and we'll do something like this all over again. Buller podcast is produced by Katie Cooper and engineered and edited by Jason Brown. We'll be right back. Ensure each winter trip is a safe one for your family. Enjoy them for years with the Michelin X-Ice Snow Tire.

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