The Bulwark Podcast - Indictment Time?

Episode Date: May 25, 2023

Jack Smith is wrapping up his investigation into the Mar-a-Lago classified document collection, and Trump world is bracing for indictments. Plus, defamation, court dates, and the actor playing a human launches his presidential campaign. Ben Wittes and Quinta Jurecic join Charlie Sykes for The Trump Trials. Learn more about your ad choices. Visit podcastchoices.com/adchoices

How much legal trouble is Donald J. Trump really in? Are the walls closing in or are we about to find out that some people are in fact above the law? Welcome to the Bulwark Podcast. I'm Charlie Sykes. This is a new episode of our new companion podcast, The Trump Trials, that we feature every Thursday. We know all the headlines of the federal and state prosecutors may or may not be closing in on the former president, the civil lawsuits, the discovery, the protective orders, the indictments. We thought we would take a deeper look and try to separate the substance from the hype. So every week, we'll bring you up to speed on the major legal issues surrounding the former president and key Trump world players, the sedition trials in D.C., the New York indictment, the Jack Smith probes of January 6th, and the Mar-a-Lago documents, the election probes in

Georgia, and the fallout from the E. Jean Carroll trial. And joining us this week, Ben Wittes, editor-in-chief at Lawfare, senior in Governance Studies at the Brookings Institution, and Quinta Jurecek, a Senior Editor at Lawfare, also a Fellow in Governance Studies at the Brookings Institution. Ben, Quinta, thanks for coming back on the podcast. Thanks for having us. Glad to be with you. Okay, we need to start with this, though, before we get to the legal stuff, because we have to talk about the desantis failure to launch last night in case you missed it here is how it went this is elon musk these were his

final words before one of the glitches cut out the audio this like the samsung delay um all right we're just uh reallocating more uh more server capability to be able to handle the load here. It's really going crazy. So, yeah, I'm actually very excited to have Governor DeSantis. Oh, I just crashed and burned as I wrote in my newsletter. Other than that, Mrs. DeSantis, how was the show? So, I mean, I imagine that there have been worse campaign launches than the one we heard last night, but nobody can actually remember any of them. So thoughts about the spectacular failure to launch. I mean, we can spend a lot

of time on the glitches and I'm perfectly okay, you know, wallowing in that, but everything about last night seemed to have been an Epic fail from the concept going in and announcing on Twitter spaces with Elon Musk, the technology, obviously, you know, screwed up, but also the content and, you know, just sort of amazing, you know, that just to watch as I wrote, you know, screwed up, but also the content. And, you know, just sort of amazing, you know, that just to watch, as I wrote, you know, Florida beta man abases himself before an erratic oligarch, only to find out that the oligarch had apparently fired all the people who were supposed to keep the site from crashing and goat roping. Ben, your thoughts about what happened last night? Somebody declared it Twitter space's total landscaping, which I thought was kind of witty.

It's a metaphor for something. I'm just not sure what. You buy a company for $44 million. You fire all the- Billion, billion. Billion, sorry. You fire all the people who know how it works so that you can't actually keep it running. Then you have this mystical transformation into a Trumpist troll, which maybe you always were anyway, and you invite a would-be Trumpist

troll to announce his presidential campaign on the thing. In the meantime, the campaign of this guy who turns out to be sort of an actor playing a human is collapsing. And it all comes together when he tries to announce his campaign on a platform that doesn't work with somebody who is some kind of egomaniac who's destroyed the platform. Again, I'm not sure what it's a metaphor for, but it represents 2023 very well. Yeah, I went with the Hindenburg. So Quinta, you want to be the leader of the free world, you want to be commander in chief, and you go on Twitter spaces to officially launch your campaign. I mean, who knew that this might be a fiasco? What really got me about this was how unbelievably predictable it campaign. I mean, who knew that this might be a fiasco? What really got me about this was how unbelievably predictable it was. I mean,

anyone who's ever used Twitter Spaces, and Ben and I have certainly experienced this in our work with Lawfare, knows that it was glitchy. It was glitchy even before Musk took over the company and fired all the engineers. It was glitchy. There was a lot of people saying, you know, can you hear me? Can you unmute? Right? People getting dropped. And so the idea of running a presidential campaign launch on it, to me, always struck me as pretty farcical from the beginning. And then you add the fact that, you know, DeSantis is trying to endear himself to the Republican primary base, which I don't have the demographic statistics in front of me, but which is largely older folks. A very small portion of Americans are on Twitter, probably a much smaller portion have ever used or heard of Twitter spaces. And that's going to be even smaller within older demographic. So as with, you know, Tucker Carlson's announcement that he was going to relaunch his show on Twitter when DeSantis announced that he was going to launch his presidential campaign on Twitter spaces, I just thought, you know, how incredibly odd to be using a medium that A, doesn't really work, and B, is totally foreign to and probably unusable to a lot of the people

that you're trying to meet. Years ago during the Trump, I'm not sure whether it was the campaign or the administration, Jane Koston, who's now at the New York Times, wrote in Vox that Trump's big problem, or one of them, was that he was far too online, that he was just making comments that were unintelligible to people who didn't spend their entire lives on the internet and stewing over various grievances. And I think that we're now seeing exactly the same dynamic with DeSantis. The idea that, oh, we're going to launch a presidential campaign on Twitter spaces, we're going to align ourselves with Elon Musk. And then to go to the substance of what he talked about when they finally did get it working, it was full of acronyms. It

was full of buzzwords like ESG. He talked about Chevron deference, which all the legal nerds had their ears perk up, but I don't think that the average voter in Ohio knows or cares very much about what that is. That's not to say that you couldn't frame it in a way that folks would care about, but using those terms is just not something that's going to mean very much to the average primary voter. And I think that this is, you know, representative of the flaws with the DeSantis campaign as a whole. You see this also in his obsessive attacks on Disneyland and on gay and trans people. These are sort of red meat to extremely online conservatives and right-wingers, but they just come off as kind of weird and off-putting.

Last night didn't help the narrative that he's a little bit weird and off-putting. Look, just in case people think this is the rhino take on all of this, you know, look at the headlines, Fox News on their homepage, much hyped Ron DeSantis presidential announcement, a disaster on Twitter, and they trolled them. The Telegraph headline, crackling voices that sounded like a pre-war wireless. DeSantis launch marred by Twitter shambles. Yahoo, DeSantis debacle. Twitter spaces presidential announcement marred by technical problems. Daily Beast, very online, very glitchy. DeSantis announces for President Reuters. Ron DeSantis joins White House race tripped up by chaotic Twitter launch. New York Times, awkward silence. Ron DeSantis'

bold Twitter gambit that flopped. Kara Swisher on Twitter. This was a fuck up, plain and simple. Once the system was working, though it still sounded like a low-rent version of the Joe Rogan Experience podcast, it was then made worse by the avoidable bloviating of its junior varsity moderator, David Sachs, and cack-handed political kingpin, Elon Musk, neither of whom can escape their me-me and also me proclivities, which is a fatal flaw if you want to make actual media. Pro tip, you know, STFU and listen since DeSantis, however, charmless was allegedly the center of action, political

playbook. Let's be clear. This was a bad night for DeSantis. Look, I mean, the usual turd polishers were working all night to come up with, you know, some sort of a way of explaining this, but this was really bad. And I keep coming back to the thought process behind the DeSantis folks going, yeah, let's go to Elon Musk. Let's launch this campaign. Instead of having a big rally, let's go to, you know, tug the forelock to the world's richest man, Elon Musk. I mean, here's a guy, you know, who spent the last few months taking advice from someone, you know, called Cat Turd, who now wants to be a kingmaker. And Rhonda Santus was willing to go along. Cat Turd 2. He's not even the first Cat Turd.

That's right. It's hard to keep up with all the Cat Turds. I have to say about Cat Turd, if he is Cat Turd 2, then Elon Musk is basically Cat Turd Polisher. Yeah, that's right. He's kind of the alpha cat turd, right? There you go. Okay, so I mean, this actually all gets kind of worse. Trump's response. We could devote the entire podcast to this. This is the headline from Mediaite.

Trump posts impossibly insane fake audio of Hitler, George Soros, and himself crashing the DeSantis campaign announcement. In the video, Soros, Musk, DeSantis, some guy named Schwab, Hitler, and the devil can be heard squabbling with each other over who gets to speak. Totally normal, not at all dangerously insane. Just want to mention this. So did you see the video, though, the DeSantis people put out, sort of a montage of Ron DeSantis and Elon Musk sort of flipping back and forth? Half the time in the video is spent with Elon Musk. I mean, and forth. Half the time in the video is

spent with Elon Musk. I mean, very weird. It's one of those things like, okay, Ron, you're running to be president, and yet you are clearly focused on sucking up to Elon Musk. And I guess I'm wondering, and I'm engaging in some rank punditry and speculation here, whether all of that was, you know, to Quinta's point about how small the audience was, that it was really an audience of one, that in Ron DeS, you know, to Quinta's point about how small the audience was, that it was really an audience of one, that in Ron DeSantis' world, in his head, he thinks that Elon Musk is the kingmaker and that the main point is if he can just get Elon Musk on his side, he's off. He's great. Because how else do you explain all the sucking up? I am really perplexed by why DeSantis thinks that Elon Musk should have a prominent public-facing role in his campaign.

I mean, I know that we all understand that rich people play important background roles in campaigns. That they, you know, you can say contribute to campaigns, you can say they buy candidates, you can formulate it however pejoratively or neutrally you want, but we all know that they're there. And the idea that the announcement of Ron DeSantis' campaign features Elon Musk, who, by the way, a lot of people don't like. For good reason. For very good reason. And, you know, look, he threw me off of Twitter. I'm one of the people who doesn't like him. It's just I'm trying to think about it strategically from Ron DeSantis' point of view, and I don't understand, except for space. And by the way, you're going to lose in a competition for space with Elon Musk, competing for attention with one of the world's

great narcissists. Look, what I go back to is that House GOP, the now notorious tweet, where they tweeted Kanye, Elon, Trump, right before Kanye started going fully off the deep end and spewing anti-Semitic bile, only when he was doing so implicitly, not explicitly. And I think that the way that I read it, at least, is that sort of lashing himself to the mast of Elon Musk is a way of trying to tap into that sort of far-right celebrity culture because Trump has an edge over him in that space. The problem is that, as you pointed out, Charlie, it makes him look like he is not the main attraction, which is not really what you want if you're running as a presidential candidate. And of course, Musk has an incredible capacity to make things, you know, blow up on the launch pad,

literally and figuratively. And so it's sort of beyond me what the DeSantis team thought was going to happen here. Those metaphors are just too easy. Well, I think that's also a safe bet that the phone lines were very, very busy in the governor's mansions in places like Virginia and Georgia, people calling up Glenn Youngkin and others saying, hey, you know, this is your moment. I want to move on to the cases in a moment. But it is interesting listening to Elon Musk talk about, well, there's all this traffic here. It's, you know, we're breaking the internet. You hear the peak audience numbers for live streams. So the DeSantis launch last night, the peak audience was 300,000. Let's put this in some context.

When April the giraffe gave birth, there were 1.2 million people watching on live stream. When AOC played a video game on Twitch, she had 430,000 people watching. When Buzzfeed made a watermelon explode, there were 807,000 people on the live stream. When Drake played Fortnite, he had 628,000. When Cristiano Ronaldo accidentally recorded himself in a sauna, that got 700,000 views on live stream.

DeSantis had 300,000 and it broke Twitter. I mean, just put it in some context. Okay, so folks, where do we start here? Do you want to start with the Mar-a-Lago investigation or Donald Trump's week in a New York courtroom? Oh, let's start with what we don't have to speculate, which is Trump in a New York courtroom, and then we can engage in irresponsible speculation about the state of the Jack Smith Mar-a-Lago investigation. I'm here for that. So let's talk about this. So Donald Trump gets his court date for his multiple felony trials in March of 2024,

right in the middle of the presidential primary. He was clearly frustrated about that. The judge also lectured him, made it very, very clear that if he violated the protective order, that he would be subject to contempt. His former lawyer, Michael Cohen, says that he really has zero confidence that Donald Trump will be able to restrain himself. So where are we at here? is that don't take this trial date too seriously because initial trial dates often don't happen at the time that they are initially scheduled for. Although, if Trump believes and Trump's legal team believe it is actually going to trial, and I'll come to that in a minute, they may want to do it early and not push it back so that it interferes minimally with the election. Now, a March 2024 trial date is super, super problem from the point of view of interference with his primary campaign. That's the height of

the primary season. On the other hand, you push it back into the summer or into the late spring, and you're in the general election season. And so it creates a real problem for Trump if they think it's going to go to trial at all. Now, we have not yet seen what I think will be the big questions in this case, which is when Trump, I believe the date is in August, files his pretrial motions, specifically his motions to dismiss, do they get any traction? And there are some interesting bases on which that motion could proceed. But I think if you start with the idea that this case may survive a motion to dismiss, and it certainly may, he's going to have a trial in the middle of the campaign unless he can figure out how to push it

back fully nine months. I honestly think it's a big problem for him. And if you're the Trump legal team, Mr. Takapina and his crew, you really have a problem now with this thing being scheduled. And remember, this is only the first case in a fashion that is maximally intrusive from the point of view of running a presidential campaign. Well, talk to me about the protective order. How routine are these protective orders, you know, dictating how Trump can talk about discovery materials during the trial? Are these unusual? Are they common? It is completely routine to have a protective order for discovery in a trial, particularly a trial with high degree

of public interest. It is not completely routine to have the judge start with a presumption that the defendant will not be able to control himself and has a super high profile and ability to promote things to gazillions of people at the drop of a bleat. You have here something that I do think is unusual, which is the judge presuming that Trump, without some very, very specific warning, is going to violate the protective order and kind of preemptively warning him about the possibility of contempt. And I think you see there what Trump will call bias on the part of the judge, and a lot of other people might call very reasonable, savvy about who he's dealing with as a defendant. And I think this interacts, interestingly, with the E. Jean Carroll.

Right. In terms of impulse control. Yeah, it's an impulse control. He's got a serious impulse control problem that's without reference to his legal troubles and, you know, is not especially well managed by the threats against him. And so that aspect of it is quite unusual. I've always been skeptical of Michael Cohen, but I really couldn't improve on his description of Trump as a petulant, angry child. And the fact that Trump has no impulse control when he gets angry, he's going to fire something off. And of course, we're going to get to the Eugene Carroll thing. And in many ways, Donald Trump might actually invite an escalation. If he thinks, you know, this is a mess, to actually escalate the fight with the judge, to play the victim card

even more, to dare the court to find him in contempt. Under normal circumstances, that threat would deter a defendant, but that might not be the case with Donald Trump. Thoughts? I think that's probably right. At the same time, I want to be careful that we're not sort of giving Trump too much credit. So I completely agree that, you know, we've seen again and again, that his strategy is sort of to lean into conflict, to take a hyper-aggressive approach to countering whatever institution is trying to hold him accountable. We saw that with Mueller. We saw that with the impeachment. We saw that with the January 6th investigation, which then allows him to sort of tar that entity as partisan, as you say.

And I certainly think we're seeing that in the Manhattan case. At the same time, that aggressive approach and that willingness to create an environment in which he can claim that he's being unfairly targeted, that is catnip to his base. But he's not just going to be running in a primary, he's going to be running in a general election. And I can certainly buy that being indicted might help him, being indicted and being found liable for sexual assault and defamation might help him in the primary because he has such a strong, loyal base of supporters who just eat this up. I am not quite so brain poisoned as to believe that it could help him in a general election. And it seems to me that if he really digs into that again and again and again, that that is not going to appeal to, you know, the same people who he needed to appeal to in 2020,

right? Like the suburban white mothers, the Republicans who care about tax cuts and don't like the tweeting, that this is just more of the same kind of behavior that really turned them off last time. That's exactly right. And yet, I think his calculation is a little bit more short-term than that. It's that the one thing he can never survive is showing weakness. And weakness in the most sort of middle school sense of the term. And so if E. Jean Carroll gets a judgment against him, and he responds the way any normal defendant would,

which is to say, have his lawyer say, we disagree with the jury's ruling with respect, we will take this up on appeal, and then shut up. That would be damaging for him. And if he were to respond to the discovery in this by not denouncing the judge, that would be damaging. And so I agree with Quinta that the same behaviors that make him retain his viability in a primary environment are not necessarily good for him in a general election environment. I very much agree. But I also think he's never thinking that far ahead. He's thinking, and he's got a good, Charlie, what you call lizard brain instinct about this. His calculation is, what do I need to do right now to show that I am still me and I am still

alpha? Well, and you've mentioned this, the E. Jean Carroll case is a perfect example of this lack of impulse control. And this, again, is an indication of how unusual these cases are. You have a federal jury, orders them to pay $2 million for sexual abuse, $3 million for defamation. Okay? So what does he do? The very next day, he goes out and he repeats the defamation. He says she's a whack job, that she is lying. And she has come out now. Eugene Carroll now has filed an amended complaint saying, you know, he continues to say these things that the court has already found to be defamatory. he's putting out on social truth social again, a bleat where he is doubling down on the very things that the jury had found were, you know, malicious lies about E. Jean Carroll. So most human beings, if they were faced with a $5 million judgment, might exercise a certain degree of prudence. We're seeing exactly the opposite from Donald Trump. There's no deterrence whatsoever.

He's going to keep saying it. So what do you make of her amended complaint? Does she have a chance to actually up the damages? Because he won't shut up because he keeps doing it. Right. So Carol has already added a request for greater damages, I believe, to her pre-existing lawsuit that is separate from the lawsuit in which we received a ruling. This is the one that's still mired up in the question of whether or not the

Justice Department can substitute the United States as a defendant under the Westfall Act because the allegedly defamatory comments were made during Trump's presidency. I don't know how effective that will be. I believe, and Ben can correct me if I'm wrong, that the fact that a jury has already ruled those comments to be defamatory would make it significantly easier for her to win on that claim and to get damages. It does make me wonder whether we're kind of heading for a situation where, you know, what the future looks like is Trump defaming Carroll again and Carroll suing him again on and on and on forever. And you can make up your own mind as to what that looks like and whether it's good or bad. But he does

seem to have kind of boxed himself into a corner. Ben, does that sound right to you? I think it does. And I also think you have to think of it from the point of view of, you know, Trump is not a rational actor, but let's treat him as one for a second. It cost $5 million to him to rape and defame or to sexually abuse and defame E. Jean Carroll, it will cost X amount of money to defame her each time. And we don't know what X is, but money is something that he has a lot of and it doesn't cost him additional reputational damage because he's already priced that in. And so I think he may just think about it as it's really important to me to say what I have to say about this woman that I never met her and that she made this all up and that she's a whack job and she's not my type. And I'm going to repeat that and it's just going to cost me

however much it costs me. And by the way, I'll figure out a way to pay it out of donor funds one way or another. That's the scam. Right. So I do think it interacts with these other scams he's got going that cash to pay people off is something that he has in large supply. So sometimes you pay people off, you know, like Stormy Daniels, you know, preemptively, and sometimes you do it through a judgment. But what's really important is that you say your piece whenever asked so that you don't look weak. Yeah, and so it's the cost of doing business. All right, let's talk about the Mar-a-Lago document investigation earlier this week.

Wall Street Journal reports Special Counsel Jack Smith has all but finished obtaining testimony and other evidence into the investigation whether Trump absconded with classified documents at his Mar-a-Lago club. The story says that associates are bracing for indictment, also anticipating being able to fundraise off a prosecution, which again indicates what a different world we're dealing with here. Wall Street Journal reports, prosecutors working for Smith have completed interviews with nearly every employee at Trump's Florida home from top political aides to maids and maintenance staff. In some cases, apparently multiple rounds of testimony, questions zeroing in on elements needed to prove a crime. So we don't know whether Smith has decided to charge Trump, whether he's presented recommendations to Merrick Garland or not.

But Smith's team has obtained evidence that Trump held onto documents after being asked to relinquish them. So where are we at? What is your sense now on where we are at in this investigation and what the timeline might be going forward? A couple thoughts on this story. The first is that the sourcing for this story makes very clear that these are witnesses or lawyers for witnesses or potential defendants who are talking to the Wall Street Journal. This is not Jack Smith leaking information about the status of his investigation. This is people who've realized that the investigation

is nearing a close, and they are anticipating indictments or charging decisions, and they're trying to lay a certain amount of groundwork for that with the public. So that's a first layer of thought. This is coming from the Trump or the witness side, not from the prosecution side. My second thought about this is it's clearly true that the investigation is winding down. The Wall Street Journal is not the only paper that has reported that, but they're finishing the investigative phase. The decision phase, however, may not be that brief. You know, you're going to be super, super careful before you bring a case like this, and there's going to be a whole lot of cross-memo kind of stuff. So I wouldn't be surprised if this story doesn't mean

indictments are coming next week, but in fact means really that we're now at the stage where we're going to be thinking about indictments and charging decisions rather than the stage where we're thinking, where we're conducting active investigation. The third point is that I don't think the Trump people would have leaked this story if they didn't think an indictment was coming. That doesn't mean an indictment is coming, but that means they think it's coming. And I don't have any reason to think they're wrong about that. Well, Tuesday night, we had two of the remaining Trump lawyers sending off a letter to Merrick Garland's office asking for a meeting with the attorney general regarding the documents probe. What do we make of that? I know that Harry Littman wrote that kind of move is like the

final arrow in the quiver of a defendant trying to stave off indictment. I mean, clearly, I mean, it is safe to say that the Attorney General is not going to be meeting with them? So why do you write a letter like that saying, hey, can we come in and make our plea to you directly? So the Attorney General will not take that meeting, I suspect, because he's delegated the matter to Jack Smith. I do think they are likely to have a meeting with Jack Smith. And that is the kind of thing that a good prosecutor, senior prosecutor, office head will do in a white collar case. Anyway, you don't do this in violent crime cases. But, you know, when you're contemplating

indictment, you will often have a discussion in which you lay out your evidence for the defendant and the defendant tries to talk you out of it. And that's a fairly common thing. The show here is not asking for a pre-indictment meeting. The show here is asking for one from the attorney general who is not actually in a day-to-day sense in charge of this investigation and who doesn't, except under very limited circumstances, does not claim or have the authority to supervise the special counsel, knowing that he won't do it so that you can then say Merrick Garland wouldn't even meet with us, right? That's, I think, the novelty here. Right. I will say it reminds me a great deal of the same technique which Trump and his lawyers used during the Mueller investigation where they would send irate letters. I can't

recall if they ever sent them to the Attorney General because obviously the dynamic was a little different given that the Attorney General actually worked for Trump, but they would send loud complaining letters to Mueller and then would provide them to the New York Times, Trump would post about them on Twitter, and so on and so forth. And so, in that respect, this sort of, as Ben says, not just the letter, but the public performance of the letter seems very familiar to me in the way that we've seen Trump sort of work the refs before. And we've seen these other letters that they apparently sent, you know, comparing the documents found at Mar-a-Lago to documents found at Joe Biden's house, Mike Pence's house, and all that.

One of the authors of that earlier letter making that point, which was, I think, for public consumption rather than internal consumption, was a lawyer named Tim Parlatore, who has now withdrawn from Donald Trump's defense. And he's saying publicly that he quit because Boris Epstein, top Trump advisor, he said, is making it harder to defend Donald Trump than it had to be. You know, I mean, there are people in the inner circle who are saying that Epstein has hindered communications with Trump, may have exposure in the special counsel's criminal inquiry. Apparently, he doesn't want lawyers to try to explain what the law actually says. So what do you make of this kind of dissension within the defense team at this particular moment in the investigation?

And this also seems very familiar. I mean, Trump's legal world is constantly sort of in upheaval, isn't it? But as an outsider, it certainly looks interesting that you would have this kind of sniping going on the very week that we're told that an indictment is rolling down that hill. Yeah, I mean, to me, at least, it reminds me of the famous line from Casablanca that I'm shocked, shocked to discover that there's gambling in this establishment. I mean, I don't know at this point, if you sign up to work on Trump's legal team, what exactly you think is going to happen. But the discovery that it's not 100% on the level seems like, frankly, the bare minimum that you should probably expect going in. And I believe

that we had known previously that Epstein might have some exposure in the Mar-a-Lago investigation himself. He's one of a string of lawyers who had put themselves in a potentially bad position in terms of making declarations to the Justice Department about how all the documents had been handed back over that then turned out to not actually be true. So I guess on a sort of meta level, again, the thing that I found really interesting about this was less the fact that it's happening and more that parlatore, because all of Trump's lawyers seem to be Italian for whatever reason, or Italian American, and I can say that because I'm from New Jersey, that he decided to go to

the New York Times about it. And, you know, that this became a story and that that speaks not only to the level of infighting, but to the fact that Proletari at least seemed to feel like it's important for him to sort of cover his own back in whatever is going to happen. I mean, what were they expecting? This is a great point. I mean, it's not like it is a mystery. If only they had been warned. I mean, being a lawyer for Donald Trump in a criminal proceeding is about the worst job you could have in the world, isn't it? Look, I think the history of this is long, right? So you had the infighting between the Trump personal lawyers in the Mueller investigation and the White House counsel's office, and also among themselves, right? You had the separation of Michael Cohen from the others, and then the attempt to influence

his cooperation when he got himself in legal trouble. You had a long history of people and then the White House Counsel's Office behavior in the context of the aftermath of the election. They're fighting with the Rudy Giuliani folks, right? And so you have this long history of the Trump legal team not being able to get along, being a weird combination of highly professional lawyers and people like Pat Cipollone and Pat Philbin, who whatever you might say about them are highly professional and serious lawyers, and then alongside people like Boris Epstein and Rudy Giuliani and others who are sort of weird television characters of third-rate attorneys who were kind of part mobster, part actor, part lawyer. And so there is nothing new here except one thing. And I think it's one important thing, which is that the reason this is happening right now is that everybody's anticipating that it's indictment time. yourself from the ship as it goes down, and perhaps more importantly, to make sure that

you don't get blamed and that you are not yourself the subject of exposure. Okay, so now we're going to get into the area of speculation, but it's informed speculation because we know the what of, you know, the fact that Donald Trump took the documents. We still don't know the answer why he took them in the New York Times. Reporting this week, the federal prosecutors have issued subpoenas for information about Trump's business dealings in foreign countries dating back to 2017. This would be, you know, when he was president. It's unclear what they're hoping to find, but the subpoena suggests that investigators are casting a wider net as they're looking for evidence of whether Trump broke the law. And they're indicating

the documents would suggest that Jack Smith is looking for details on the Trump organization's real estate licensing and development dealings in, ready for this, China, France, Turkey, Saudi Arabia, Kuwait, the UAE, and Oman. So what do we make of this? Because this would, I mean, the Trump organization claimed to swarf any deals while Trump was in the White House, but some of these new subpoenas seem related to Saudi-backed golf venture known as LIV Golf. So is there a connection? I mean, is this, I mean, this would take the Mar-a-Lago document investigation to a whole different level if there's a connection between Trump's dealmaking and those classified documents that he took with him when he left office.

So what do you make of this? So the speculation that perhaps there was some, as you say, desire for dealmaking on Trump's part that might have led to the squirreling away of these documents, I think was there from the beginning, just in public conversation, just because as you say, Charlie, nobody really knows why this happened. And the idea that perhaps Trump just took them because he wanted them or he had the absolute right to take them, as he likes to say, seems just simply so stupid, for lack of a better word. Why would you open yourself up to that? I think it's tempting

to try to figure out a deeper underlying reason. I will say I personally find the idea that he took them just because he wanted them and he felt like they were his because he felt like the government was his to be a pretty convincing explanation. But that said, it makes perfect sense to me that Jack Smith would be investigating this further and that looking into Trump's business dealings is a sort of a natural way to do that., if you're looking to see whether he might have had some financial advantage, some sort of horse trading, that trying to figure out what was going on in those communications and those deals seems like a pretty natural way to go about things. I don't know if this is a, you know, it breaks the whole case wide open situation more, to me, at least, I read it more as, you know, it makes sense that Smith is pursuing this line of inquiry, though I don't believe from the reporting it's clear whether it will actually end up with anything. Yeah, it does seem that one of the explanations might be he's, you know, dotting all the I's and crossing all of the t's there's a very important piece of evidence that

that's what it is and that quinta's analysis is right and that's that this the news of this subpoena which it was relatively recent and the news was just the other day coincides with the news story that the investigation is wrapping up or has all but wrapped up. And if you were pursuing the grand theory here that Trump stole these documents in order to trade them to the Saudis in exchange for golf franchises, presumably you would have been investigating that before the last several weeks of the investigation. And so I read this very much as a, okay, he's got to file a final report eventually. So you want to be able to say, we saw no evidence in the Trump business records of an exchange of documents for business deals. We saw no evidence that the material had been, you know, monetized or given overseas. But I do think it looks more, to me anyway,

like an I dotting and T crossing exercise at the end of the investigation where somebody says, okay, what haven't we examined that we need to before we wrap this up, then it does like this is the heart of the thing. So one more thing that we're keeping an eye on here is that as we are taping this today, people listening to this will know the result of this. Stuart Rhodes, one of the leaders of the Oath Keepers, is up for sentencing in federal court today. The government is asking for 25 years. What I find interesting is that one of the arguments that the defense has made in this case and in other cases is that they shouldn't be held responsible for this because they were just doing what Donald Trump asked them to do. And so,

you know, they were arguing today, you know, January 6th was not a thing until Trump made his infamous tweet on, you know on December 19th, 2020, be there, it will be wild. It is interesting. And this doesn't seem to, just in terms of the public debate, to settle into people that the people who were directly responsible for the attack on the Capitol continually and consistently point the finger at Donald Trump, what he said, what he wanted them to do, what they believe they were doing in his service. Thoughts? So I think this is a terrible argument on Stuart Rhodes's part for leniency. The argument that, you know, I tried to stage a revolution and, you know, resist the lawful authority of the United States,

but Donald Trump made me do it. It's a bad argument for leniency. That said, it is a very powerful argument for the idea that the search for accountability for January 6th is incomplete. And the fact that so many of the January Sixers say the same thing, which was they were there because Trump told them to be there, that doesn't have legal significance from the point of view of whether Trump is indictable for a criminal offense, but it has incredibly important moral significance that, you know, we are now at the end with the Oath Keepers and Proud Boys verdicts. We are now at the end of the big wave of the highest value on the ground January 6th prosecutions. But we have not yet begun the political echelon prosecutions. And the fact that Stuart Rhodes can say this and it not be ridiculous, and it's not

ridiculous, is a powerful argument of the necessity of those prosecutions. And where we are in that process is more mysterious, frankly, than where we are in the Mar-a-Lago process. But I think the fact that one person after another gets up at sentencing and says, I was only there because Donald Trump told me to be, if I were Jack Smith, that would really mean something to me as a light a fire under my ass kind of thing. I think Ben is exactly right. I mean, and it's worth underlining that we have far less visibility into where things stand with the federal January 6th investigation. We know that the Georgia investigation is moving forward, that there have been immunity deals for a number of the fake electors, that Fannie Willis has indicated that she's planning to move forward potentially with an indictment in the end of summer or early fall, but we really don't know what's going to happen when it comes to the federal case. It has just been a lot more quiet. And so we'll see if things heat up more.

Ben Wittes is editor-in-chief at Lawfare, senior fellow in governance studies at the Brookings Institution. He also writes the Dog Shirt Daily newsletter on Substack, which you should really subscribe to. And Quinta Jurecic is a senior editor at Lawfare, also a fellow in governance studies at the Brooks Institution and a contributing writer at The Atlantic. Ben, Quinta, thank you so much for coming on the podcast today. Thanks for having me. See you next week. Thank you all for listening to this episode of The Trump Trials. I'm Charlie Sykes.

We will be back tomorrow. We'll do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown. Thank you.