The Bulwark Podcast - Indictment Day

Episode Date: July 20, 2023

Jack Smith will move very quickly on a new indictment, numerous court appearances and trials can be quite disruptive to a presidential campaign, and Trump may have violated civil rights laws by trying to block qualified votes from being counted. Lawfare's Ben Wittes and Anna Bower join Charlie Sykes for The Trump Trials. show notes: https://www.lawfaremedia.org/article/judge-cannon-holds-a-hearing Learn more about your ad choices. Visit podcastchoices.com/adchoices

This is the week that Donald J. Trump got the letter from the Department of Justice telling him that he was a target in the grand jury investigation into the attempts to overturn the 2020 election. This would be the third indictment of the former president, but it will not be the last, which is one of the reasons why we launched this podcast, The Trump Trials, with our partners at Lawfare. So once again, in a very, very timely week, we are joined by Ben Wittes, Editor-in-Chief of Lawfare, and Anna Bauer, Correspondent for Lawfare. Ben, Anna, good morning. Hey.

Hi. Okay, I need to start off with a public service announcement, though. I feel it is necessary on this particular July 20th, 2023, as a public service announcement to tell all of our listeners, you did not actually take crazy pills this morning. You are not the crazy ones. I bring this up because we wake up in a world the day after a federal judge very explicitly said, yes, Donald J. Trump did rape a woman, E. Jean Carroll. It may not have been the technical definition of rape under New York law, but it is rape. He is saying that the former president of the United States is a rapist. And it's probably

not the top 10 story of the day. Okay, so that's number one in terms of crazy pills. Crazy pill number two. I'm looking at the Drudge Report, the headline. Big picture of Marjorie Taylor Greene. It reads, Republican freak show, exclamation point, house of porn, Hunter Biden sex in open committee, Greene whips out dick pics. This actually happened in the Congress of the United States, that Marjorie Taylor Greene, a representative of a party that is obsessed with banning books that might hint at or depict some kind of sexual activity in schools. They are obsessed with getting rid of that, protecting children from this. And here she is with a picture. And I'm sorry to say this, Hunter Biden getting a BJ from a prostitute.

And she held up the pictures in the House of Representatives. This actually happened. Anna, is she your member of Congress? Thankfully, she is not my member of Congress. My member of Congress is Andrew Clyde. That is a big upgrade. So we're not going to spend any time talking about Hunter Biden or whether or not he felt the need to have dick pics, whatever. The third story that I think is just fascinating, I just wanted to throw it out here, is the scoop from Politico that Kevin McCarthy, who is quite accurately referred to by Donald Trump as my Kevin, had secretly promised that he would expunge the Trump impeachments from the House records. And apparently, this is something that he promised after he suggested on national TV last month

that Trump might not be the Republicans' best presidential candidate in 2024. Apparently Trump was so mad at him and he was railing at him. And so Mike Kevin had to go, oh, Donald, Donald, don't be mad at me. I will actually expunge your impeachments. Apparently Trump fumed on his way to a campaign event in New Hampshire. Donald, Donald, don't be mad at me. I will actually expunge your impeachments. Apparently, Trump fumed on his way to a campaign event in New Hampshire. He needs to endorse me today. But the House GOP leader, who has felt compelled to stay neutral during the primary so as not to box in his own members, was not ready to do that. Yeah, count down to three. Instead, to calm Trump, to appease Trump, to lick the boots, McCarthy made a promise, according to a source close to Trump and familiar with the conversation,

that the House would vote to expunge the two impeachments against the former president. And as McCarthy would communicate through aides later that same day, they would do so before the August recess. Can we just point out that it is actually impossible to expunge an impeachment? Yeah, that's awkward. That's what is awkward. The House is not a continuing body. The House that impeached Donald Trump went out of existence. The next House that impeached Trump went out of existence. It is impossible for the current House to do anything more than say, we don't agree with the previous House. It doesn't get to say the previous House never did that. Like, there's no record of it. It's not actually constitutionally possible.

Well, stop with the norms and the logic and the law, Ben. I'm just saying, you can do with it what you want. I report, you decide. Of course, the other embarrassment here is that even though this promise was made, you know, reflexively to save his own skin, it's kind of hard for him now to deliver for the reasons you mentioned, but also because there are actually, believe it or not, several allegedly moderate House Republicans who are loathe to revisit Trump's impeachments, especially the charges stemming from the January 6th attack on the Capitol. But I don't know, based on track record, I'm guessing that Mike Kevin will try to follow through and he's going to force them to go

along with him. So whatever. But again, my public service announcement is if you woke up, you're looking at all this going, why are Republicans doing this? Why are they doubling down on this? The guy is a rapist. He's a crook. He's a serial liar. He is demented. He is threatening violence in all caps, bleats on truth social. And yet he has more than 50 percent of the vote in the primary.

And no, you are not the ones that took the crazy pills. Have we established this now? I think we're good. OK, so let's get to the news of the day. The big story of the week, and it's likely to get even bigger. The third indictment appears to be imminent. Mr. Wittes, you have made a prediction on the timeline. When do we think that Jack Smith is going to drop the next big indictment on Donald Trump? So I'm sure I'm going to eat these words, but I think it's happening today. Whoa.

Today. So here is the logic, okay? If you're Jack Smith, after what happened last time, you want to minimize the amount of time between the target letter and the indictment, because any additional time you give is time that Trump can lie about the indictment and you can't talk, right? Since you're not going to talk anyway, except through the text of the indictment, you want to put that text out there as quickly as you ethically and reasonably can just to minimize disinformation. We know from Donald Trump that from his bleat on Monday that he was given four days to come in.

Four days from Sunday is today. We also know from press reporting last week that a gentleman named Thomas Windham, who's one of the chief prosecutors in the special counsel's office, has been spending a lot of quality time with the grand jury without witnesses. And so what that means for people who are not familiar with grand jury procedure, that is a prosecutor presenting the case to the grand jury. So I think we can infer that the case is essentially fully presented and the only thing left to do is vote. And the question is, how quickly after the four days have elapsed will they proceed to a vote. And my assumption is they will do it immediately. And because getting Trump in and out of the building is, first of all, not going to happen

because he's not going to come in, but secondly, would be quite a production. If it did happen, you'd have to know pretty early that it was happening. So they already know that it's not happening, which means they can proceed basically any time today that they want to. And I think what will happen is they will do it, you know, today, tomorrow, at the very latest next week, they will do it initially under seal, and then Trump will break the seal. And all of that is worth exactly the many figures that the bulwark pays me to provide analysis. Well, since we want to get our money's worth, let's break down what we know about this target letter. Lots of reports would suggest that the target letter mentions three statutes related to number one, conspiracy to defraud the U.S., number two, obstruction,

and number three, deprivation of rights under law. I think some of those are self-explanatory, but some of them are not. Now, obviously, Smith's letter isn't going to list every potential crime that could arise from the investigation, right? He didn't need to mention no false statements or mail wire fraud if they arise from the conduct. But let's just talk about this. The New York Times last night is suggesting that one of the charges against Trump could be violating a civil rights statute that dates back to the post-Civil War reconstruction era that was written basically targeting the KKK and white Southerners. Can you explain what that's about and how that might fit into all of this? First of all, it is not entirely clear how it fits into all of this.

So, Section 242, which, as you say, was part of the original, one of these Reconstruction-era statutes, forbids the deprivation of somebody's civil rights under color of law. And under color of law means it's a sort of archaic legal expression that means using the power of the state. And usually, we think of this as, you know, violently preventing somebody from trying to vote, for example. And so the question is, and I think we don't know the answer to it at this stage, is, is this some legal theory in which by trying to prevent the counting of electoral votes, the proper counting of electoral votes. Trump was effectively denying or attempting to deny to the voting public its civil rights. There is some, I am not an expert on this area of case law at all,

but there is some case law that suggests that that could be a theory. The other possibility is that there is some individual victim here, which would imply a fact pattern that maybe we don't know. So I think this is a big surprise, the presence of this statute, and it's not clear to me whether this is a sort of a legal theory that the January 6th committee didn't think of, right? They thought of the obstructing a proceeding theory. They thought of the fraud against the United States theory. They did not present a civil rights theory. And the interesting question is whether that's because the Justice Department has constructed the facts differently and developed a theory under a different statute, or whether it's because the Justice Department knows things that the January 6th committee didn't know. Yeah, I'm looking at the New York Times story. I mean, they noted that Congress, you know, enacted that to go after Southern whites who were attempting to prevent, you know, formerly enslaved citizens from voting. And they suggest in the modern era, it could be used in cases involving voting fraud conspiracies, raising this possibility that Trump could face prosecutions

on accusations of trying to rig the election himself. And they explained that Jack Smith could use the law to address efforts by Trump and associates to flip the outcome of states he lost. So that could be a lot of things. It could also include, obviously, that call to Georgia Secretary of State Brad Raffensperger to find the extra votes. I far, as far as we know right now, no one else has at least come forward to say that they received a target letter. So if in fact, this is a conspiracy, wouldn't that suggest that there will be more people included in this indictment than just Donald Trump? You can't have a conspiracy of one, can you? I mean, what about John Eastman? What about Rudy Giuliani? You can have unindicted conspirators, right? And so you don't have to indict all conspirators.

The other thing is that you can deal with them in separate indictments. And the third thing, of course, is that most of the time, most criminal defendants do not come forward to announce that they've gotten target letters. And I'm not certain that we should assume that the fact that the, you know, John Eastman's and Jeffrey Clark's and Mark Meadows's aren't lining up to announce that they're about to be indicted doesn't mean that they're not. Okay, so this raises the interesting point that all the information we're having, I think, is it fair to assume is probably coming from defense sources from the Trump team because the Jack Smith's operation is unlikely to be

leaking out this material? I mean, so that's just something to keep in the back of your mind? I think we can go a little stronger than that. There is zero evidence of any prosecutorial leaks in this case. Everything we know is stuff that is either from the target letter, that is somebody read portions or declared what was in portions of the target letter to a number of reporters, the statutes in particular, and from Donald Trump and his lawyers' public statements. And so we're dealing with a situation in which the defense has announced that it's received the target letter and then disclosed some of the contents of the target letter. There's no whisper of a leak here. Well, there's so much other stuff going on. I mean,

this is a good time to note that just on Tuesday, Michigan's attorney general announced the charges have been filed against 16 Republicans who signed onto the fake elector scheme. They signed a certificate falsely stating that Donald Trump won Michigan's 2020 presidential election. The attorney general is named Dana Nessel. She said the pseudo-electors have been charged with eight felony counts each, including forgery and conspiracy to commit election law forgery. These electors all met at the state Republican Party headquarters in December 2020, claimed they met inside the Michigan Capitol. Talk to me about this because, you know, there are fake electors in a number of states. Is there something uniquely bad about Michigan, or are they just being uniquely aggressive in Michigan? or at least some of the other states, which is that in some of the states, there was this language in the document that was sort of like a caveat that said, you know, we're submitting this in case

a valid court order throws out the election and hands it to Trump, right? And there was no such caveat in the Michigan case. And I do think that to the extent that somebody was using careful legalese to avoid fraud, and it wasn't that careful. So I think there's exposure in other areas, in other states. And we know there's an investigation in Georgia. We know there's an investigation in Arizona. Michigan seems to have been really uncareful. I also think part of the explanation is that the attorney general in Michigan actually cares. It does matter if a prosecutor cares enough to investigate and do something about it. Look, the case is important because it will cause prosecutors in the other four battleground states where this happened. Including my state, Wisconsin.

Including Wisconsin to have to answer the question, why is the situation different here? And is it that the facts are different? Is it that the law is different? Or is it that you've been sitting on your ass? So let's talk about Georgia. Anna, you have been covering Georgia extensively. And I want to talk to you about also what you saw down in Florida. You were at that courtroom in Eileen Cannon's courtroom in Fort Pierce, Florida this week. But let's start with Georgia because that's also hanging fire. When I was sort of planning my vacation, I had circled this week because I remember maybe it was in one of our discussions,

you know, it came up that Fannie Willis was going to be dropping her indictments probably the first two weeks in August, and probably Jack Smith would go earlier, which is right now. But what is the state of play in Georgia? Earlier this week, again, so much going on, Donald Trump had tried to have the Georgia Supreme Court essentially throw out the entire grand jury investigation, and he lost unanimously in the Georgia Supreme Court. I don't know why it keeps happening to these guys unanimously. So where are we at in terms of the Fannie Willis indictment and the timing and the coordination with what's going on with

Jack Smith? What do we know? What do we not know? So we know that there was a grand jury that was selected at the beginning of this month. I was there for grand jury selection, which is something that is very unusual. You know, Georgia has these very quirky state grand jury procedures, including the fact that, you know, grand jury selection was open to the media. I did not know that was a thing. Right. It was very strange. I mean, and we were able to take photos, not of the grand jurors, but, you know, of the proceedings. And so it was very interesting because usually grand jury procedures are very shrouded in secrecy and you don't really

get a peek behind the curtain. But in this instance, we did. So those grand jurors have started their work. There are two grand juries that is typical for Fulton County every term of court. And we understand that one of those grand juries will hear the 2020 election case. And we're just waiting for Fannie Willis to start presenting that case. I've been following the docket and looking at the indictments that those grand juries have been putting out. And I think they've been too busy to have started hearing a massive potential conspiracy or RICO case. So I think that they have not started presenting evidence yet. I think they're waiting for a window of time that Fonny Willis set out in a letter to Atlanta

officials, which would be from July 31st to August 18th. So sometime around there, we're looking for indictments. And in terms of what we know about potential coordination between Special Counsel Jack Smith and Fannie Willis, we really don't know anything. There's no public signs of coordination. And I think that that would be appropriate considering that there's, at the federal level at least, there's grand jury secrecy rules that does not include exceptions for transmitting grand jury testimony or grand jury transcripts to state prosecutors. So I'm not sure that it would be appropriate at this stage for there to be coordination, but I do think it's the kind of thing where eventually, you know, Fannie Willis very much could shore up her case and end up having a much stronger case than she maybe would have had it not been for Jack Smith bringing charges as well at the federal level.

So we will see. Well, let's talk about that ruling from the Georgia Supreme Court. First of all, what can you tell me about the makeup of that court? My gut sense is I'm just guessing that it is a conservative court. It is a conservative court. You're right. But the way that I put it to Ben is it's not the Texas Supreme Court. You know, there are certain state Supreme Courts in the South. The other one that comes to mind is the Supreme Court of South Carolina, where for whatever reason, they have a very highly professionalized legal kind of establishment that means that, you know, the court ends up being, although conservative,

and I disagree with so many of the decisions that they make, it was the kind of thing where most Georgia legal watchers did not expect the Georgia Supreme Court to intervene and kind of, you know, run interference for Trump. And it was really unsurprising to those of us who are in Georgia that the Supreme Court very quickly, I think it was within a matter of days after Trump filed this motion trying to, you know, get them to put a stop to Fannie Willis's investigation, they almost immediately rendered a decision saying, we don't think that this is warranted. We don't think that you filed it in the right court or went through the right procedure. I will say there is still a pending similar petition that Trump has filed in Superior Court. So that is still pending. However, that's in Fulton County Superior Court, and it's very unlikely that that's going to go anywhere.

So we're still waiting for that decision. But yeah. So here's the pattern that we're seeing. We're seeing it in the federal and at the state level. Trump also tried to have his payoff to the Pornstar case shifted to federal court and got slam dunked on that. It strikes me that Trump's lawyers are just throwing the spaghetti up against the wall in many of these motions. And you can see this, that the judges are essentially saying these are borderline frivolous. We're not even going to take them seriously, which underlines, I think, the larger picture that Donald Trump is not really counting on winning these cases, either on the law or on the facts, that for him now, this is a political issue, that he is playing to the court of public opinion. And his best chance to beat these cases is to be elected president, that he's

basically now pursuing a strategy that will say, I'm going to try to delay all of this. And if I get back in the White House or I get an ally in the White House, we're just going to nullify this. We're going to have the biggest jury nullification in the history of the country. And, you know, a serious defense does not throw this kind of crap up against the wall. What do you think, Ben? Oh, I very much agree with you that there are defense arguments that you make because you're trying to prevail on them. There are defense arguments that you make because you know you're not going to prevail on them in the trial court, but you're setting up something for appeal.

And sometimes those will look very unusual or outlandish, but there's a strategic judgment behind them. And then there is defense arguments that you make because you are buying time for something else. And that's what this is about. These defense arguments are part of a public relations strategy, which is of, you know, in the case of the one that was made to the Georgia Supreme Court, attacking Fannie Willis as a, you know, racist partisan Democrat who's out to get Donald Trump as part of a witch hunt. That's part of a public relations strategy in the short term. And in the longer term, it is an effort to buy time. And the theory of the case is put as much off until after the election as you can, win the election, and then use the power of the state to make it go away.

So our colleague Mona Charon describes this as the OJ defense. When you don't really have a substantive defense, you just attack the prosecutors. And that, of course, is something we've seen from Donald Trump in the past. He has no compunction about attacking the prosecutors, attacking the grand juries, attacking the judges, attacking members of their family. have embraced the same defense, not even waiting for this indictment to come down before joining in the coordinated attack on the Department of Justice and the special counsel. I mean, it's one thing for Donald Trump, and Donald Trump is Donald Trump. But the way the Republican Party has now internalized the idea that obstructing justice in this case should be central to their agenda is pretty extraordinary, even by their standards, isn't it? I think so. But look, I mean, if I had asked you a week ago and said,

on Sunday, Trump will get a target letter, on Tuesday, he will announce it, and Kevin McCarthy will be asked for comment without having seen a word of the indictment, what will Kevin McCarthy do? You would not have been naive and said, well, I'm sure he'll reserve judgment, right? You would have predicted exactly what Kevin McCarthy did. So at one level, it is surprising, among other things, because it's so stupid. You know, as soon as the indictment becomes public, he's going to have to answer for his own comments about it. But at another level, it's not surprising at all in the sense that you would have predicted exactly this behavior based on your own conditioning, watching these people lick boots for as long as we all have.

I will also say that, look, as you know, they are responding to a different incentive structure. The incentive structure that they're responding to is not one where they get burned for being wildly wrong. They get burned for being inadequately loyal and zealous. And so, whereas you and I look at it and say, wow, that's a stupid thing for Kevin McCarthy to say because he doesn't know what Jack Smith knows, the truth or the reality of what's in that indictment actually don't matter to him. This is also a result of the extraordinarily successful gaslighting that's taken place over the last two years, where Donald Trump has convinced Republicans that what happened on January 6th was no big deal, that what you saw really didn't happen.

It may not have been Antifa, but it was legitimate. You're right. We shouldn't have been surprised by this, say, if we had been told this last week. But just imagine if you'd been told this a couple of years ago. And I was talking with Willie Geist, and he was saying that you look at a lot of what's happening in the news and try to explain it to somebody who just came here from another planet, another planet like, for example, three or four years ago, where if you had been told that a leading candidate for president had just basically been, you know, accused of being a rapist by a federal judge, was facing the third indictment, including indictments for espionage and all of this stuff, it would have blown your mind to think that this would have no effect.

I mean, right? If you'd been told this in 2015 or 2016, it would have been almost inconceivable to think that anyone would have survived at any level in politics. But even more recently, if you'd been told on January 7th that all of this would happen in the wake of January 6th, the Republican Party would decide that they were completely okay with what happened and in fact would continue to embrace Donald Trump and would rail against holding him accountable, you would have thought that was mind-blowing. So it's easy to sort of become numbed by all of this and say, well, all of this was inevitable. I think it is worth stepping back and going, okay, it's not shocking now, but we kind of have a, maybe I have a little bit of historical

perspective that it really is pretty shocking and how far we've come in a relatively short period of time. Well, I certainly agree with that. And I don't know how you restore in a society its capacity for shock. But, you know, as you pointed out in your public service announcement up front, we are also a society that, unlike five or six years ago, we are now a society that introduces dick pics on the floor of the House of Representatives, or in committee hearings, at least. I mean, I think there is a level at which there is, at least in the Republican world, a sense of shock that does not register anymore and used to. Okay, so Anna, let's go back to what happened in the courtroom this week. You were one of the few

reporters in the courtroom in Fort Pierce, Florida on Tuesday, where Eileen Cannon's presiding over the documents case. There are a lot of questions about Eileen Cannon, about whether she was in the tank for Donald Trump. She made some rulings that were quite out of bounds during the first iteration of this case involving the special master. Just give me your sense, first of all, of what's going on right now. This was a routine trial scheduling conference, but it wasn't really routine since it involves Trump and his body man, Walter Nauta. And it obviously could alter the course of the presidential campaign. So tell me again, not just what happened, but what is your sense of Eileen Cannon? I mean, is she the fire breathing

partisan that I think some people fear? Did she learn her lesson? Does she feel chastened? What is your sense of her? Charlie, just for context, the hearing, as you said, it was a routine scheduling hearing. It was supposed to deal with issues related to classified evidence that might arise later on down the road. It was supposed to be this kind of preliminary hearing for those issues, but it turned into this hearing on when the trial date will be set, the government had asked for December 11th and Trump's team had argued no, no, no. The leading Republican presidential nominee candidates could not put the trial past the 2024 election because that decision could alter the outcome of the election. She did not end up making a decision on that. We are still waiting to hear what she will decide. But in terms of what I gathered about

her, there was good and bad. So I wish I had a better answer for you, but there were signs that potentially she has been a little bit chastened by the 11th Circuit's overturning of her ruling in the related special master case. She seemed very well-versed in the facts of the case and the law, which I think was good because in the last time that I was in her courtroom, she seemed a little bit fuzzy on some of the principles that were relevant to the special master litigation. But she also seemed to be very focused on not looking at Trump as a potential presidential nominee. So there's this statute called the Speedy Trial Act. It sets out a number of factors that judges can consider when

setting a trial. That's things like, you know, how complex the case is, the volume of evidence that the defense attorneys will need to sift through. And Trump's team had made arguments that went wildly outside of those factors. They said that Trump should get special treatment and that his trial should be delayed because he is running for president. And there was some question about how she would respond to that argument, because when she presided over Trump's related civil matter, she seemed to really be willing to look at Trump differently than any other defendant because of his status as a former president. But he or she consistently guided the defense attorneys kind of, you know, back to the factors

that are in the statute and kind of repeatedly said, you know, I think we just need to stick to these factors of the volume of the evidence and the complexity of the case. You know, that might mean that she still gets to a result that Trump's team wants, but it was a bit of a good sign that she really seemed to want to stick to the factors that are set out in the law and wasn't willing to really kind of let them, you know, take over the hearing by focusing on his status as president or former president. So what about this holdup with respect to a protective order that the Department of Justice had asked for? And apparently the Trump team is just not talking to them or cooperating

with them. There was a lot of criticism that she'd, in effect, just seem to be endorsing that kind of delay. What was your sense of that? So the Justice Department, the day before the hearing, the hearing was on a Tuesday. On a Monday, they filed a protective order related to classified evidence. So it basically just sets out the terms that the court would potentially put in place to govern rules you know, rules around how defense attorneys will handle classified evidence and that kind of thing. So the government asked the court on Monday to, you know, grant that protective order. But under the local rules in the Southern District of Florida, you have to have meaningful efforts to confer with the defense so that, you know, they can avoid potential appeal issues that might kind of, you know, hold up the proceedings. But it turns out

that they had only provided the protective order to defense counsel on the Wednesday of the week before. They tried to have a phone call on Friday with defense attorneys, but they were told that defense counsel wouldn't be available until the next week and that they could set something up then. And defense counsel said, you know, we won't be available on the weekend. Sorry. So the special counsel's office went ahead and filed it. Cannon did, you know, kind of snap at the prosecutor, Jay Bratt. She said, you said, well, so you tried to do something on Friday and then went ahead and filed on Monday. And to her, that didn't really amount to meaningful efforts to meet with defense counsel. It may well be the case that defense counsel would have kept

stringing the Justice Department along and not be willing to meet with them the next week. But I think that, you know, to be fair to Judge Cannon, it actually is something that seems like in this instance, maybe that's a mistake on the special counsel's office part, because, you know, only giving defense counsel two days to go over this protective order and then expecting them to meet over the weekend, I think that maybe Judge Cannon made a pretty reasonable decision there. And all that the Justice Department has to do now is just meet with defense counsel and then they can refile it. So I don't think that will end up being a huge delay, hopefully. I'm not sure it says much about Judge Cannon other than that she was not happy in court with the prosecutors when this was revealed. Okay, so she's dismissing the whole notion that you can't have a trial before the election because

he's running for president. She was very skeptical of that, but she was also skeptical of the DOJ argument that you could start the trial in December because there are millions of documents here. Do we have any sense at all when this trial will take place and whether or not it would take place before the election? We don't quite have a sense. I will say a few things that I'm, if I had to guess what she will do, I don't think that she will agree to an indefinite delay. She frequently mentioned needing a concrete schedule. I do not think that she will necessarily agree to putting the trial after the 2024 election. Something that I would note is that she asked

if the New York criminal case against Trump, which is related to Alvin Bragg's probe, which is set for March of 2024, she asked if that is something that is set in stone, if they think that it will actually go to trial then. So I'm wondering if she potentially had a date sometime in spring of 2024 or maybe soon thereafter, so maybe summer of 2024 in mind. What I'm really getting at is how they're going to coordinate all these different cases. And Ben, feel free to weigh in on all of this, because I guess my sense is that what's about to drop today or tomorrow or early next week, I mean, the indictments about January 6th, that's going to overshadow all of these other cases. And I guess the question is, if you're Jack Smith, do you want everything else on hold? And do you want to go with this one first? And does

he have the ability to do that? So I think if you're Jack Smith, this is an obvious point, but it's an important point that you will not have a conflict between the Mar-a-Lago case and the January 6th case because it's the same prosecutor. You know, you may have conflicts with Fulton County and with New York, but the feds are going to be very well coordinated and their trial schedule for Washington will not conflict with their trial schedule for South Florida. Look, the big problem here for Trump, and this is news for maybe news for any of your listeners who may be going out thinking about committing crimes in multiple jurisdictions

and getting caught for them, it's time consuming being a criminal defendant. And it's not really consistent with running for president because you have these judges, and remember, there's going to be four of them who are going to do things like say, you have to be at this hearing on this particular day. There's already a hearing scheduled for in the New York case that Trump is expected to be at. So when you have four cases, and by the way, you know, some of these cases will take a few weeks to try. So if you stack up three or four, three to six week trials in the middle of an election campaign, it's actually quite disruptive to the conduct of an election campaign. It's amazing. Yeah. It's actually quite disruptive to the

conduct of running for president. And that's even before some judge might decide to put movement restrictions on you or put an ankle bracelet on you, right? Which I don't think is likely to happen. No. But the other thing that certainly will happen is, and you already saw, you know, talk of this in New York, is whether there are restrictions on what Donald Trump is allowed to say. You know, there's a protective order in New York. What happens when he starts bad-mouthing the judge, attacking the prosecutors, which he's already doing. So what does that, what is the answer to that? Well, I think the answer is we're, it's, we're totally uncharted territory and we really don't know.

But the point is the more charges you have in the more different jurisdictions, the more time consuming it is, the more different judges you're answerable to for things that you say, the more your ability to talk about your message becomes, you know, the subject of potential contempt motions. Well, speaking of contempt motions, I'm looking at his truth social bleat from this morning, and he's given a number of interviews where he has sort of implied that there will be violence if Jack Smith tries to put him in jail. And there's this specific, you know, language here where he talks about potential death and destruction. Or in this interview that he gave in Iowa yesterday, you know, he's talking about how dangerous it will

be, you know, to indict him. Are these the kinds of things that a judge is going to look at, particularly in the January 6th case, and say, look, you know, I have a defendant in my courtroom who incited an insurrection who is continuing to incite violence. So what are the possible consequences for that? So first of all, it very much depends what kind of judge you have. Yeah, absolutely. So the bench in the District of Columbia is one that I know extremely well, and there are judges who would be more and less tolerant of that sort of thing than others. There is no judge in the District of Columbia who would not take seriously possible threats to or incitements against witnesses or jurors or prosecutors or court officials. And I don't know how you control him as a defense lawyer, but at the extreme end, you can have a gag order, which is what they did in the Roger Stone case. That raises certain First

Amendment and constitutional issues. But we're going to find out, I think, pretty quickly, because Trump is so little in control of his own logoreal tendencies, that, you know, whatever restrictions are in place, he will tend to violate. No, and I think that that's also part of the uncharted territory. Now, we don't have a lot of time to get into all of this, but feel free to push back on my argument that I made in my newsletter this morning. Look, I mean, I understand that there's not a moral equivalency to what's going on on the right, on the left. I'm not arguing that.

This is not a whataboutism thing. But I do think that people need to realize that right now there's going to be a full-on, full-throated attack on the entire justice system in our country. It is very much in Donald Trump's interest to discredit prosecutors, juries, courts. And this takes place in the context of a lot of folks on the left who have been engaging in, I'm thinking unrestrained language about the legitimacy of the U.S. Supreme Court. Like, I mean, people may not like their decisions. They may disagree with their decisions. I think the concerns about ethics are completely valid and

reform is urgently needed. But, you know, when you're talking about the legitimacy of the court, keep in mind that ultimately the U.S. Supreme Court is going to be the final bulwark against Trumpism. On our constitutional system, a lot of this depends on him. You look back on January 6th, and they recognize that you can't really have a coup without the Supreme Court. And I think that it's pretty obvious that in 2024, the court is going to be the, you know, is going to be put on the spot again. Donald Trump is not going to concede that he lost the election. 2024 election will be litigated. There will be attempts to, you know, go to the court.

Anyone who thinks that a Republican Congress is going to be an effective check on, say, Trump 2.0 is wrong. So I guess the point is, be careful what you wish for with all of the rhetoric here. Because I mean, I know that we're, we kind of lost our capacity to be shocked. But I mean, would it really be shocking if a restored Donald Trump took his cue from, say, Andrew Jackson and said, I'm just going to ignore Supreme Court decisions if they block unconstitutional moves? And if the President of the United States basically says, I'm going to ignore the Supreme Court because I agree with you, it's illegitimate. Ben, where do we go to get the democracy back then? I agree with that. I mean, I think the term legitimacy is a difficult one, because I think what some people mean by it is that, look, if you look at the Supreme Court's

approval rating, it's a lot lower than it used to be. And people don't have confidence in the court or the court system in the way that they used to. By the way, the court's no different from just about every other institution in that regard. But it has seen a notable loss of prestige. When you're talking about the courts in particular, and you talk about their legitimacy, there is another intonation of that, which you just alluded to, which is the question of whether you have to obey a court when it says something, whether a government institution that is enjoined from doing something needs to follow that restriction. And, you know, the courts are a funny business because they actually don't have the power to enforce their own rulings. They require the executive branch to enforce their rulings. The Federalist Papers said neither force nor will, right? They would be the least dangerous branch. Well, their ability to get other branches to follow their orders is a function of legitimacy at some level. And the sense that they're allowed to and constitutionally authorized to issue these opinions and strike things down and we all follow

them. Now, if you say, are the courts less legitimate than they used to be? Do they have a legitimacy problem? Not in the sense that anybody doesn't follow court orders, right? I mean, so, you know, all the people who were complaining, not yet, complaining about the Dobbs opinion, which is, you know, in my opinion, worth complaining about. Nobody's not following it, right? Well, in Alabama, though, the Alabama legislature is ignoring the U.S. Supreme Court order that they create two black majority congressional districts. I mean, they seem to be defying the court order. Go ahead, Justice Roberts. You made the ruling, you enforce it. Yes, at least for now. And I guess what I would say is I have no problem with people complaining about the legitimacy of the courts in the sense of if what they mean by legitimacy

is I used to have high confidence in them. And now if a pollster calls me, I and my friends will say we don't approve of the job they're doing. And so think those are two very different uses of the word legitimacy, and it matters which one you're talking about. I think so. I think it's an important distinction. I think it's also important to mention, though, that there are people like J.D. Vance who have been very, very open and outspoken about the fact that Donald Trump should ignore Supreme Court rulings. He said, I think that what Trump should do, if I was giving him one piece of advice, fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people. And when the court

stops you, stand before the country and say, the chief justice has made his ruling. Now let him enforce it. That is breathtaking. And, breathtaking. And given the way in which norms have been shattered and what we know that Donald Trump is capable of doing and what the GOP is incapable of standing up against, that's not completely far-fetched. And that's my warning flag here that somebody who is prepared to burn it all down and says, I will burn it all down, might actually someday burn it all down. Right. And I will also say that, you know, that if you asked J.D. Vance what he thinks about Antifa, he would say something about, you know, crazy hard left anarchists. But that is what he is espousing right there. Not hard left, obviously,

but he's describing lawless anarchy, right? We have a court system. It is entitled to issue opinions. We don't like some of the opinions. I understand he doesn't like some of the opinions, but in a society that has a rule of law, you don't just get to say, you know, the chief justice has spoken, now let him enforce his opinion. You just don't get to do that. And we should call that what it is, which is J.D. Vance joining Antifa. Ben Wittes, Anna Bauer. Ben Wittes is the editor-in-chief of Lawfare. Anna Bauer is correspondent for Lawfare. Thank you so much for joining us on the latest episode of The Trump Trials. Thanks, Charlie. Thank you. And thank you all for listening to today's Bulwark Podcast. I'm Charlie Sykes. We will be back tomorrow and we'll do this

all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.