The Bulwark Podcast - Indictments for All the President's Men?

Episode Date: July 13, 2023

Prosecuting Trump for Jan 6 presents novel issues, but that's not the case when it comes to Giuliani, Flynn, and Mark Meadows—and charges may be imminent. Plus, a grand jury is seated in Georgia, the Oath Keepers may serve more time, and focus groups are reacting to Trump's legal woes. Ben Wittes joins guest host Sarah Longwell for The Trump Trials. show notes: https://www.lawfaremedia.org/article/they-ll-be-in-the-room-where-it-happens Learn more about your ad choices. Visit podcastchoices.com/adchoices

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. Hello everyone and welcome to the Bulwark Podcast. I'm Sarah Longwell, publisher of the Bulwark.

I'm here because Charlie Sykes is out, but Trump trials are in. This is a new companion podcast we feature every Thursday in partnership with our pals over at Lawfare. We'll talk about the latest legal news in Trump world, and I want to share some nuggets about how voters are reacting to it because I have been doing focus groups on this the whole time. I am joined by my great friend and former podcast co-host, Ben Wittes, editor-in-chief of Lawfare and author of Dog Shirt Daily on Substack. Ben, what is up? Hey, Sarah. It's like deja vu doing a podcast with you. So for Bulwark podcast listeners who don't know, Sarah and I had the nichiest of niche podcasts of the entire pandemic. We did a podcast together tracking the amazing show, The French Village, which Sarah conned me into watching and told me we should record a podcast about as I watched. And it was one of my favorite experiences of the pandemic.

So go back and listen to the French Village podcast. It was a great project. It was basically like my version of a sourdough starter. I was like, you know, like the pandemic hit. It was like, what weird project am I going to do? And it was, I'm going to make Ben Wittes watch this French show with me. And we're going to talk about the parallels to modern politics. And just for people who don't know, the French Village, which is available on Amazon streaming, is the best show about the Trump era ever made, partly because it has nothing whatsoever

to do with the Trump era. And yet all the themes, all the subjects, all the issues, except the whole murder thing, Holocaust thing, are remarkably eerily similar. And so go back and watch The French Village. And for color commentary along the way, listen to The French Village podcast. Our companion podcast. Well, we're reunited and it feels so good. And I'm especially excited to do this episode, not just because it's with you, but because I would say I have been deep with voters on how they're reacting to a lot of Trump's legal troubles, but I wouldn't say that I'm deep on the legal side. And so I'm pumped to have you walk me and our listeners through it, especially because there was kind of big news this week, which is that Trump's lawyers are trying to, not shockingly, move the documents

trial till after the election. As the New York Times reported, Trump advisors have been blunt in their private conversations that he sees winning the election as a solution to his legal problems. So Ben, I assume this is like, he thinks, well, it's two things, right? It's both when he's running for president, he can say they're politically motivated, he can try to slow this down. And then two, if he becomes president, he can what, pardon himself? Is that how this works? I don't think he would need to pardon himself. So this is uncharted territory. But, you know, given that the Justice Department has a policy that you can't indict a sitting president, there's probably follows from that, that you can't continue the prosecution of

a sitting president to the extent that that person was elected with an indictment pending. And so I think at a minimum, any indictment that's pending at the time that Trump is elected, God forbid, goes into a kind of deep freeze. In addition, I think Trump could almost certainly direct an attorney general to drop an indictment of him. And so I think Trump is not wrong that if he is elected president, his legal problems at least temporarily and probably permanently go away, even if he doesn't try to use the pardon power to nuke it completely. I think if you want Trump to face any kind of criminal accountability, not voting for him is probably an important component of that. Well, we're going to get to this later in the show when I talk about voters, but I will tell you, there is a real chunk of voters who think he may very well have broken

the law, but that doesn't mean that they wouldn't vote for him for president. That may sound counterintuitive, but so are voters. Okay, so Trump's lawyers, they sort of framed their request to judge Aileen Cannon as a plea for cautious deliberation and as a means of safeguarding democracy. So I want to just read the part about how they described it in the filing. This is from Trump's lawyers. The court now presides over a prosecution advanced by the administration of a sitting president against his chief political rival, himself a leading candidate for the presidency of the United States. Therefore, a measured consideration and timeline that allows for a careful and complete review of the procedures that led to this indictment and the unprecedented legal issues presented herein

best serves the interests of the defendants and the public. And so the lawyers are arguing to the judge that, besides being important for democracy, that Trump and his co-defendant, Walt Nauta, that they won't have time to prepare for the trial because Trump says he's running for president and he's got discovery to go through. And Nauta is saying that his job requires him to accompany the president, former President Trump, during most of his campaign trips around the country. And so that makes, you know, doing the trial preparation challenging. Is the judge going to go for this? So I don't think we know what this judge is going to go for. She's been a, frankly, a bad actor. So she could go for it out of bad actordom. I think there are three distinct issues here, and it's worth thinking about them distinctly. One is whether you should set a trial schedule that allows somebody to basically announce that he's running for president and thereby not face criminal scrutiny for a number of years. That is, in my view, meritless and borderline frivolous. It cannot be that Trump can't be prosecuted while he's president, he can't be impeached after he's

president, and he can't be prosecuted if he says he's running for president, right? Those three things can't live together. The second question is, are these questions going to take a long time to litigate? And the answer to that question is yes, and that is not a frivolous issue. Normally, the way judges do that is they set an aspirational trial deadline and then they defer it if people aren't ready, if they haven't had time to litigate the necessary issues. You usually don't say, well, I think this is going to take a long time, and so I'm going to set a trial date five years in the future. That's not actually the way the system works. The issue that is going to hold up this case is not any of the ones that Trump's lawyers

are mentioning. It is the volume of classified information in the case. And that issue may well, in fact, probably will push the trial date until after the election legitimately. But that should be done on an issue-by-issue basis. And so I think if Judge Cannon were to basically say, yeah, for democracy reasons, we can't have a trial any time in the next year and a half, that would be a real sign of her being in the tank for the former president. On the other hand, if this trial doesn't happen until after the election, that is not necessarily a sign that Judge Cannon is in the tank. So Jack Smith has asked for a December trial date because he says the case involves straightforward theories of liability and does not present novel questions of fact or law. So he wants it fast.

Yes. So one possibility there is that Jack Smith has thought through completely all the classified information issues. I mean, there's a few ways to do that. One is to just declassify a huge amount of material, particularly related to the 31 documents that have individual charges here. Another possible way to do that would be to drop a bunch of the charges, which I think is very likely to happen at some point, that you have an indictment that 10 of those documents or five of those documents can be declassified. And so you basically drop everything else in the interests of speed. So one possibility is that he has a real plan for how to get this case to trial in an expeditious fashion. Another possibility is that that trial

date is something of a fantasy. And he's trying to put Judge Cannon in a position in which she has to rule against the government to put this off. And the government can then make clear that it was prepared to try the case in an expeditious fashion. I don't know, and I don't think anybody else knows, which one of these is the reality. And we won't know until we see some of the classified information procedures act litigation, and specifically whether the government is basically able to say, okay, we've given Trump all the classified discovery he's entitled to, and, you know, we've declassified the following several dozen materials, and we're ready to go to trial.

If he does that, then I would think that trial date is non-fantastical. Otherwise, it looks pretty fantastical to me. You know, Trump's lawyers claim they could raise constitutional and statutory challenges to Jack Smith's authority. What could those be? There are no plausible constitutional challenges to his appointment. At the time of Bob Mueller's appointment, a law professor named Stephen Calabresi wrote a paper that was purported to raise constitutional issues about Mueller's appointment, which was under the same legal regime as Jack Smith's, the special counsel regime. Most observers thought it was a quite bad argument, and actually none other than George Conway wrote a piece in Lawfare critiquing it. I don't think there is a serious question about the constitutionality of Jack Smith's appointment. that, you know, a defense lawyer may feel you can gum up the works a bit by filing a motion about

that then the government has to litigate, the judge has to rule on, and I suppose can be a later basis of appeal. You're going to see a lot of those motions, just, you know, I'm sure you'll see a challenge to the search warrant. I'm sure you'll see some kind of political interference motion. This is Joe Biden selectively prosecuting his political opponent, right? These are situations in which, as a defense lawyer, you throw a lot of spaghetti at the wall and see what sticks. But the specific constitutionality of Jack Smith's appointment is not a motion that is going to prevail unless, you know, Judge Cannon really decides she's, you know, kind of in for a dime, in for a dollar with the man who appointed her. Broadly speaking, then, you think the chances, because I get asked this a lot, like, couldn't he be in jail before the election? And, I mean, I just can't give people reassurance that, like, couldn't he be in jail before the election? And I mean,

I just can't give people reassurance that like, this is how you're going to get Trump. But you basically think all things being equal, it's pretty implausible that Trump sees the inside of a courtroom, not the inside of a courtroom, but like that an actual trial, he faces a jury prior to the election. On this case, I think the New York case is likely to go to trial before the election. Now, I don't believe the New York case will produce any prison time for Trump, but I don't see a reason why it can't proceed. If Jack Smith were to bring a January 6th case, remember, this case involves a huge volume of classified information. There's no classified information involved in January 6th. So a huge number of the issues that are going to gum up this case and legitimately gum up this case, SEPA litigation is messy and it is time-consuming, are not necessarily at issue in a January 6th case.

So if a January 6th case were to materialize, I think that could move relatively expeditiously, particularly if it were designed to move expeditiously. I don't see this case going to trial before November of 2024, realistically. Again, unless Smith has some trick up his sleeve, like declassifying a remarkable volume of information and dropping the charges related to everything that he can't declassify. That could speed it up. But 31 charges, each involving a separate classified document, that is a huge administrative burden for the judiciary and the Justice Department and the agencies that classified these materials. That's a real management and litigation challenge. I don't even know if Trump's lawyers are cleared to receive

the discovery yet. I think they're not. When you're litigating with classified information, that is a big pain in the ass and it legitimately takes time. I don't think this case is likely to go to trial before the election. I do think the picture could be very different with respect to the Georgia case that everybody expects is coming, the January 6th case that people expect is coming. That's a little murkier and particularly the New York case. I think it is likely that Trump will be a convicted felon by the time of the election. It's just not likely that he'll be a convicted felon in this particular case. Yeah, I don't want to belabor this because I want to get to some other stuff. But, you know, the New York case is probably the weakest in terms of public perception

of caring, like whether or not he paid off a porn star. So even if he's convicted, I'm not sure how much that hurts him, period. So this is now getting to your turf more than mine. Imagine that you have a conviction in New York, an indictment in Georgia that alleges a RICO conspiracy, a Georgia state RICO conspiracy, and a January 6th indictment that is on core democracy issues as well as this case pending. So you have one conviction, albeit on the weakest case, and three separate indictments in three separate jurisdictions.

How does that play politically from a, you know, he's a convicted felon with multiple other indictments pending against him on election day? Yeah. I mean, my simple rule of analysis on voters and Trump's legal problems are that it helps him in a primary and probably hurts him modestly in a general due to polarization. I mean, I'll get into this later, but the swing voters right now, you know, they're not wild about Biden. And I've had a lot of people suggest that they might just close their eyes and turn off the TV and talk about Trump's economy. Somebody said that, you know, I'm going to turn off the TV, close my eyes and enjoy Trump's economy. And so I think it hurts them in the general, but man, we're so polarized and people are so dug in. aspect of these indictments collectively that is not about voter perception. It's about actually the mechanics of campaigning. When you have four criminal cases pending against you, that is enormously time-consuming in terms of the necessity of your appearing in court. If you imagine the New

York case actually proceeds to trial, he would have to be in court for every day of that trial. When you have an arraignment, you have to go to it. And so having four major criminal cases against you takes up time in an election year where you're really not supposed to be doing anything. You can't be on television in these cases, except in Georgia, where the whole thing will be basically live cast. You can't be campaigning. I don't know how you run a campaign and a criminal defense at the same time, just as a mechanical, time-consuming matter. Yeah, I suspect we may get to see how one does it. I want to use this to transition from Trump's sort of legal defense to his political defense

on this point, because a big part of the way that Trump did this with Hillary Clinton, you may remember when he showed up to the debate with all of Bill Clinton's accusers after his infamous grab them comments. And what he was doing there is he was drawing a moral equivalency. He was trying to create the what about scenario so that everything's a wash. And he's doing that again, and Republicans are trying to help him. And that brings us to a lot of the sort of Hunter Biden things, right? Part of making that such a big deal is about creating a sense of equivalency. They're all corrupt. In the docs case, I would say one of the things I hear the most from voters is simply the

idea that, well, Biden has all these documents and Pence had documents. And so I don't know, all these old elected officials have documents. And that's where you get this dynamic of people might be like, yeah, Trump did something wrong. Maybe it was illegal. He shouldn't have had the documents, but all these politicians do it. And so they both can see that it's illegal while still maintaining the idea that that doesn't mean they shouldn't vote for Trump or that he's not the best option. And so that sort of brings us to the Gal Luft affair, which is the newest development in the Republican whatabout strategy to argue that Biden is corrupt, his abuse of power surpasses Trump's, and that the DOJ is framing people. Do you want to talk about Gal Luft?

First of all, a huge amount of what you just described, starting with Hunter Biden and ending with Gaal Luft, falls into the category of argument by non sequitur, right? We sometimes call it whataboutism, but as best as I can tell, Hunter Biden is accused of kind of stuff that ranges from quite garden variety, being a cocaine addict, crimes, and related stuff, to quite garden variety for politicians, relatives. Very ugly, by the way, and I don't mean to dismiss any of it, trading on his father's name and being a kind of Billy Carter type embarrassment to his family. And I, without excusing any of that, want to say it has absolutely nothing to do with what Trump is accused of, which is in the case of the Mar-a-Lago investigation, essentially stealing hundreds of classified documents and then engaging in an elaborate scheme to avoid returning them and sharing them with people who,

for reasons of personal advantage, have no business receiving them. That's before you get to the theatrics of storing them in unsecured locations like Mar-a-Lago and the chandelier over the toilet, which is itself a crime, by the way. If we were talking only about the $2 billion that Jared Kushner has gotten from the Saudis, then the sort of comparison to Hunter Biden would make sense. Hunter Biden isn't an elected official. He's a family member of an elected official. There is really no whisper of a suggestion that Joe Biden has done anything wrong in that context. And really, until there is something substantial, there's no reason, in my view, to take seriously the comparison. There is, however, which brings us to Gaal Luft, which is the closest thing that the Republicans have to a suggestion that this is really about Joe Biden's

conduct, right? And the sequence here is that he makes these allegations that this is really about Joe Biden corruption, the Republicans, the Jim Comer crowd, and go nuts about it. He then vanishes, and it turns out that the reason he's vanished is that he's a fugitive from justice because the Justice Department is alleging that he is an unregistered Chinese agent, which, of course, all allegations being non-falsifiable, the Republicans have now turned into the oppression of the Biden administration's political enemies. Well, there's a simple test for this, which is the Justice Department has represented that it can prove these allegations in court beyond a reasonable doubt. Like Edward Snowden, I don't see Gall Luft showing up to contest them in court beyond a reasonable doubt. Like Edward Snowden, I don't see Gall Luft showing up to contest them in court. He is, I believe, in Cyprus. So if the claim is correct,

then the Justice Department will be unable to prove these allegations because we have a fair trial system here in the United States. And if the Justice Department is just making this shit up to oppress the political enemies of the Biden administration, then we should see Gahl Luft show up, prove the case meritless, prove the case unworthy, as, for example, two different people did in the context of the Durham investigation. They showed up, contested the allegations, and were quickly acquitted. If that happens, I promise you, Sarah, I will take very seriously the suggestion that the Justice Department went after poor Gaal Luft because he was a whistleblower about the Hunter Biden matter. Until that happens, I will work on the following working assumption.

One, Gaal Luft knew he had a criminal problem. He framed himself as a whistleblower by way of dealing with his criminal exposure. A whole bunch of very credulous Republicans lapped it up out of his hand. And then when it didn't work, he fled to Cyprus. Yeah, but this is the part I don't understand, which is about these Republicans, right? So like, Gaul Luft was indicted before the midterms, before the midterms. But Republicans like Comer kept suggesting he was charged for the purpose of stopping Luft from testifying before the new GOP House Majority's Oversight Committee about all the dirt he has on the Bidens. This is like a conspiracy theory that this guy was indicted just to keep him from testifying in front of Republicans when they were in charge. And they keep calling him a credible witness, even though the charges against him include

allegations that he lied to federal officials in 2019, he engaged in unlicensed arms trafficking, and acted as an unregistered foreign agent for China, as you pointed out. I've seen these Republicans on TV continuing now to say that this is all an elaborate plot, even from testifying. When you say credulous, like, is it that? What is going on with these Republicans? They must know this is nuts. They can't rely on this guy. Look, you're the expert on Republican psychology, not me. But I think this may be convenient, right? This way, you don't actually have to have a hearing with him. You can just accept all these supposed allegations as, you know, everything that discredits Gall Luft becomes a piece of the conspiracy to cover up the Biden administration's supposed misconduct. I am open to the possibility that there was Biden

administration misconduct. The proper way to evaluate that is for Gahl Luft to show up, to defend the charges against him, and to make whatever allegations he has to make, and let's evaluate the evidence. You can't do that when the guy is a fugitive. That's pretty bad though. It's sort of an embarrassing position for them to put themselves in and seems like that may discredit them down the road. But you know, these guys, and it brings me to another case. I want to talk about Georgia, which is the exact same sort of situation where you've got a totally non-credible actor named Rudy Giuliani, you know, making up wild accusations that then

it turns out he can't prove. You've got these Atlanta poll workers. They testified during the January 6th committee, Ruby Friedman and Shea Moss, and they are asking for severe sanctions against Rudy Giuliani in their defamation suit against him because he's repeatedly failed to produce material evidence. This is a trend, the failure to produce material evidence. So if they grant this request, the judge would essentially be ruling that Giuliani forfeited the case. He never turned over any evidence, right? So what he said, he said that there's this guy, Boris Epstein, there was like a text chain where he texts all the allies that there's an urgent POTUS request, which is to share examples of election fraud. And he explained it by saying,

doesn't necessarily have to be proven, but does have to be easy to understand. And so that's when Giuliani, he tells Epstein, tell Trump about the footage of Moss and Freeman moving the ballots around and said it will live in history as the theft of a state. But he never turned over evidence of this exchange. It came to light from the other lawyer, Christina Bob, despite multiple court orders, right? They kept saying, like, show me this evidence. And then so Giuliani claims that all of his devices came back wiped after the DOJ sees them and that he can't access his iCloud account. And then this motion also referenced a log of documents Giuliani had, some of which pertain to presidential findings,

findings that may have been Trump's pretext to seize voting machines in December 2020. So what do you think is going to happen to Giuliani here? Well, so Giuliani in this case has a lot of exposure. You know, Charlie likes to sometimes compare the Trump folks and Giuliani to a clown with a flamethrower. He does like his clown with a flamethrower analogy. Yeah, I just want to say for those who don't remember Ruby Freeman and Seamus's testimony at the January 6th committee, these are two people, their mother and daughter, who were badly, badly burned by the clown's flamethrower. And the fact that he is a clown does not reduce their

injuries at all. And these are people whose lives were really ruined by Rudy Giuliani making up bullshit about them. And it's one of the most moving parts of the January 6th hearings is their testimony. These are two election workers. They're both Black. And there is no way I think that these two women, had they been white Republican looking women, would have become for Giuliani the role that they played. You know, one of them passed the other a breath mint and Giuliani basically made up. This was captured on video that she was passing a flash drive with fraudulent votes and that they were doing something malevolent. And they were both basically driven out of their homes. I mean, this is a horrible, horrible case. And so I want listeners to remember, because this all sounds very clownish, right? The flash drives and

my material was wiped when the DOJ had it and blah, blah, blah. And it all sounds like a buffoonery. This was extremely malicious activity by Giuliani. And they have brought this suit against him. And he is going to lose it one way or another because his conduct was simply indefensible. Now, in addition to that, he appears to have been caught in some genuine abuses of discovery. And when you litigate against somebody, you have an obligation to produce information, they have an obligation to produce information. And Giuliani has just repeatedly defied court orders regarding his discovery obligations. That is stuff that judges take very seriously. I haven't studied the briefs in this case well enough to know whether I think

this is by itself fatal to Giuliani's position. Giuliani's position is indefensible, even if you cut him all kinds of benefits of the doubt. They are going to get a significant judgment against him, and that's because they should. That's what we have a tort system for. We're not going to get Trump in jail before the election. What about, could we get Giuliani in jail? So one possibility, and this arises both in the Georgia criminal case, which now has a new grand jury seated this week, but also in the January 6th case, I think it is very possible that you will see a Trump indictment in these cases or multiple Trump indictments in these cases. But one possibility, particularly on the federal January 6th side, is that you see indictments of a lot of the people around Trump, including Giuliani, separate from a Trump indictment or independent of it. Or maybe even that you don't see the Trump indictment, you only see the all the president's men kind of indictment.

And the logic of that would be that, you know, the Mark Meadows's and Rudy Giuliani's and Sidney Powell's and Mike Flynn's, none of these people have the defenses available to them that a sitting president might have. And so you have some novel issues with prosecuting Trump that you don't have with prosecuting any of these other people. So I wouldn't consider it beyond the realm of possibility that you get indictment of eight or 10 people or five or six people with Trump kind of named as an unindicted co-conspirator, saving the Trump question for later. I'm not saying that's likely necessarily, but I don't think it's beyond the realm of possibility either. Rudy has a lot of exposure. We know that he went in and gave a proffer to the special

counsel recently. We also haven't heard much from Mark Meadows recently. And so I think there's a lot going on behind the scenes in the January 6th case. I do think that's likely to come to fruition very soon. And when I say very soon, I mean, you know, in the next couple weeks, because frankly, Jack Smith is running out of time. One thing on the January 6th stuff. so the Justice Department, they're appealing the sentences of Stuart Rhodes and the Oath Keepers because they think they weren't severe enough. Correct. You know, they did get handed down in Maywood. So Rhodes got 18 years. He was the founder of

the group. He was convicted of seditious conspiracy for his role in the January 6th attack. But I guess that 18 years is below the 25 years the DOJ recommended and four years below the sentencing guidelines. And I guess many of the co-conspirators are facing sentences that fell below the guidelines. Is the DOJ just really want to, I guess they must want to make a point here. So I think there's two issues here and they're both from the Justice Department's point of view important. One is that Rhodes got 18 years, and that's a pretty good outcome from the Justice Department's point of view. And Tarrio, on the Proud Boys' side, he's going to be facing a lot of time, too.

But below Rhodes, the sentence drops off pretty dramatically, the sentencing time. I think one other got 12 years and, you know, some of the others are quite a bit lower than that. So, sentencing is done by comparison in a lot of situations, right? You look at people who've been convicted of the same thing, who have the same aggravations under the sentencing guidelines, right, who have the same, and then you do it by, you know, there's a lot of comparison work. And so if you can raise the ceiling and you can say, okay, nobody's going to get more than Rhodes because Rhodes is the leader. He's the guy who ran the thing. So we want to push Rhodes up as high as we can go because that creates room underneath for people who were really bad guys, really doing bad things, but were not necessarily

the leadership. That has spinoff effects on a lot of other potential sentencing in the Oath Keepers and Proud Boys area. So that's one issue. The second issue is that Judge Mehta, who was the trial judge, who, by the way, I thought did an excellent job in running the trial, he was consistently below the guidelines in the sentencing of these people. Whenever a judge in major felony cases is significantly below the guidelines, the Justice Department does have an

equity in saying, hey, wait a minute, we don't want the most serious felons in an insurrection to consistently get less than the sentencing commission sets as the guideline sentence for this. And so I think both of those factors are kind of at work here. And basically, this is a run it up the flagpole to the DC Circuit and say, hey, just letting you know that Judge Mehta is consistently giving Oath Keepers sentences that are substantially below the guidelines. Does that bother you? And let the DC Circuit say either, no, that's fine. You know, the guidelines aren't mandatory or yeah, we don't think this is okay. Got it. Hey, you mentioned that the Fulton Grand Jury, the Fulton County Grand Jury got chosen

and Anna Bauer in Lawfare had a good piece on Tuesday that they did a dozen jurors and then roughly a dozen alternates that will sit sort of for different days of the week. She says they're a diverse group, people of various ages, genders, and races. She said they wear light wash denim, beige linen slacks, cotton t-shirts, black suits. Some appear excited, others apprehensive. Many of them look bored. They won't stay bored. Whatever the Trump case may be, it's not boring. And she also wonders if they can imagine what they'll be tasked with. I wonder how many of them even realize what they're doing there or that they could be asked to decide a monumental question in modern American history. Did a president try to stay in power illegally despite an election defeat? So they just don't realize what case they're being chosen for? Well, we don't know. I think probably a lot of them figured it out. Yeah. Because, you know, if you read the Atlanta Journal Constitution, you know there's been

a special grand jury. You know that Fannie Willis, who's your elected DA, has been working this case. So some of them probably walked into court and they saw Fannie Willis, the DA, personally sitting there, right? They saw the press corps there. The press corps doesn't usually show up for a grand jury convening, right? That's a kind of a routine court matter. And they probably said, oh, this must be about Donald Trump. But I think some of them who are, you know, as you know better than most, most people are not following the news regularly. Some of them probably didn't know what this was about. And, you know, they got a grand jury summons,

they showed up, they answered the questions, they said they were qualified or not qualified, they, you know, they did what the court told them. And now they're going to find themselves on the grand jury that's going to decide whether to indict the former president. And that's going to happen over the next, you know, few weeks because this grand jury, you know, it's basically July and August. And so it's an interesting question how many of them knew what was going on. Yeah, if I just had to speculate, I'd say, I bet half had no idea what

they were doing there. And we're just, and we're just annoyed with jury duty. Yeah, I suspect that may be right. But I also, you know, they talk to each other, and they're allowed to talk to each other. And so, you know, once somebody figures it out, it presumably gets around, oh my God, this is the Trump case. Look, our system has two points in which we ask regular citizens to decide the fate of people. One is, you know the famous 12 angry men right it's the actual pettit juror deliberations where they've heard the evidence and they go into a room and they thrash it out and there's a million movies about that and we are all very familiar with that and the other one which is in some ways it's much lower profile because grand jury proceedings are generally secret, except in Georgia, where we ask people to go through the exercise of showing the grand jurors all the information and asking them to ratify the executive decision to bring this case. And they've got to persuade them to do it.

And that is not a small thing. Every now and then grand juries say no. The fear of grand juries saying no actually does impede prosecutors from bringing cases sometimes. And so I think there's a wisdom to that a couple dozen random but vetted Fulton County residents in denim and linen, whatever Anna described them as wearing, whose names I don't know and whose deliberations I will never learn, get to decide whether Donald Trump faces trial in Fulton County. Just real quickly, since I know you and Tim spent a lot of time on this last week, I want to do an update on Taylor Toronto, the Trump fanatic who was outside Obama's home with the guns and the ammo. So on Wednesday, he was ordered detained until trial. He faces misdemeanor charges in connection with January 6th and the magistrate ruled that he posed a threat to the public, but the magistrate also blasted officials who he said filled Toronto's head with conspiracy theories about a stolen election.

Did you have thoughts on the update? So I don't know that that is the magistrate's role to do that. I do think it is really important that people like Taranto not be allowed to menace members of the public. And we do have pre-trial detention is a disfavored kind of thing. We like to release people before they're convicted when we can, but there are people who are just too dangerous to be walking around the streets. And I think when you fill your van with explosives and go looking for people to target with them and post social media about yourself doing it, you've put yourself in that category. And is it undoubtedly true that there are officials who deserve that criticism? Yes, absolutely. I'm not sure that I want federal

magistrates making those kind of political comments. That said, I certainly understand the frustration. Okay. Well, as we wrap up here, I do want to just go through a little focus group stuff that I teased at the beginning. We have continued to do focus groups every week around all of Trump's indictments. We obviously talk about lots of other things, but we have started asking and have been asking now for months how people, Republican voters specifically, as well as some swing voters, but we've really, right now, because we're in the middle of a Republican presidential primary, we are trying to think hard about how Republican primary voters are thinking about this upcoming election. And

I'll just say the top line is that voters are basically split equally between either supporting Trump more because of the indictment or staying the same. So the indictments either make people just not feel any differently about Trump, or they make them much more supportive. And, you know, in the three groups since the second indictment, about half, so 12 out of 25, support Trump more, one supported Trump less, and then another 12 out of 25 were neutral. I think a lot of us who do this kind of work sort of predicted that it would help Trump. But even I've been surprised by how much in the voters' minds, it doesn't just make them say like, oh, I want to vote for him more. Also, what it does is it creates this sense for them that the DOJ and the FBI, who, by the way, they think are entirely corrupt and they have no faith in, that they wouldn't be trying so hard to get Trump unless they were afraid of Trump.

Trump's indictments, you said something about this earlier, and it really is true. They take Trump's indictments as evidence that Trump was sort of getting to the bottom of the deep state, that he was challenging the establishment. They don't just want to vote for him more because he got indicted. They want to vote for him more because they think something's up. And like they wouldn't be going after him this hard if Trump wasn't such a threat to them. And then the other thing I'll mention, and I briefly hit this earlier, is this idea that voters, it is easy to hold in their minds the idea that Trump may both be guilty and that it is fine to support him going forward. You know, I've seen a lot of people mention polls that come out about the number of Americans,

including the percentage of Republicans, which typically it's not insignificant, who think Trump is guilty. And they take that as like, well, they would certainly never vote for somebody who is guilty. But that's not the case, especially in the Doc's case. Some believe he did something wrong, but then they start talking about the two-tier justice system, right? And that sort of kicks into high gear. So there's just one quote. A jury could well find him guilty, and he may very well be guilty. But why are they going after him and not everybody else? If they're going to go after him, I want to see him go after the Clintons and I want to see him go after Biden and there's been others. This is a witch hunt. Here's another one. They're going after every little detail of Trump's life with a fine tooth

comb versus grazing over just about everything else that occurred with the current presidents and past presidents. So they're looking for a way to try to blemish his record and get him out of the race right now. We could grab just about any quote and they would all be roughly the same. Does that track for you, Ben Wittes? Well, so of course, I don't do focus groups, but I think it is the logical explanation for the resilience in the polls. One possible explanation, right, would be, I don't believe any of it. He's innocent, right? Which some people clearly believe. But Trump makes that very hard to believe because he goes and announces things like, yeah, I took the documents. They were mine, right? You know, he's kind of got the Colonel Jessa damn right I ordered the code red

thing going. So he makes that difficult. So the only other possible way to retain your position is, yeah, maybe he's guilty, but I don't care, right? And then you have this news machine, this information machine that feeds you the answer, right? Which is, yeah, maybe he's done it, but it's no different. And the real issue is that they're going after him instead of the Clintons, instead of the Bidens, instead of Obama, right? And of course, the fact that there's just no comparison to be made, then you're in a qualitative, not an objective department. I mean, that's an argument that I think is very clearly right. There's no comparison to be made. But it's also ultimately an evaluative judgment that somebody is entitled to disagree with. And so if somebody decides that in their heart they know that the Clintons and Joe Biden and Barack Obama are just as corrupt as Donald Trump, you can live with the cognitive dissonance of this selective prosecution argument. And the fact that it's bullshit doesn't mean you can't live with it. And so I think part of what the right-wing disinformation environment has done

is it has created a set of arguments that people can make to themselves based on real and false facts that allow you to hold the position, oh, yeah, he did it. I'm sure he's guilty of something, but I'm going to vote for him anyway, or I like him anyway, or he's my hero anyway. I don't know what you do about that. That's, again, an information messaging problem, and I think one that's profoundly difficult. and ultimately is being criminally prosecuted for, and anything else that any modern president has ever even thought about doing. And I would just point out that if all we had was New York, right, the weakest case, that is worse than anything Bill Clinton was accused of doing. Or it's roughly the same anyway. It's a consensual affair that he took active steps to cover up, including as president, and lied in official documents and statements about. That's what Bill Clinton was

impeached and almost prosecuted for. He was accused of roughly some other things that I would say were worse than that. Yeah, no, no. But I mean, formally, he was accused of a rape and credibly so. There was never a chance that that was going to be a prosecutable case because it had happened 20 years earlier. Donald Trump, by the way, is also accused of a rape. And by the way, the only reason that Clinton was not prosecuted for the Monica Lewinsky matter by Bob Ray, the successor to Ken Starr, was that they entered an agreed upon adjudication in which Clinton accepted some measure of

responsibility, accepted that he was going to resign from the bar, and Bob Ray declined prosecution. I have no doubt that if Donald Trump had been willing to have an agreed upon adjudication, that that case was resolvable too without criminal trial. There's no persuading somebody who really, really wants to believe the bullshit that it's bullshit. But boy, is it bullshit. Yeah. I mean, and this is where I'll just sort of leave it at this is that it doesn't even have to be that it creates for them a sense of, oh, I think he's guilty. Like all it has to do is muddy the waters. Like this what the republicans know like i asked this question about what are republicans doing with gal luft but i know what the answer to that is right this is a matter is a political matter of trying to create in voters minds a sense

where because ben i gotta tell you we just spent you know a full hour and you had to dissect a whole bunch of things many of which, as a very close news observer, only halfway grasp. I mean, I certainly grasp them when you explain them to me, but I only follow them so much. And I think that average voters, sometimes people talk about the accumulated weight as a thing that ultimately tips voters over, where I think it is just as likely, psychologically,

that the accumulated weight becomes so much white noise for people. You know, they can't really suss it all out. They can't really figure out what's going on and they can construct their own narrative. Fox News certainly gives them an alternate and every right-wing media outlet gives them an alternative theory to go and sort of cling to. And for a swing voter or a low information voter, the like, hey, they're all corrupt. Hey, they all do this. Hey, they're all bad guys. So I'm just going to choose the one that I think is better for me. Like that is a very powerful thing. And I think that is at the center of what Republicans are trying to do right now.

Yes. And I also think that, you know, the accumulated weight argument has, I think, a big flaw, which is if you believe that the weight that is accumulating is the weight of evidence of Donald Trump's criminality, then you can say, okay, well, New York is not enough by itself, but New York plus Mar-a-Lago plus Georgia plus January 6th, maybe that accumulated weight is enough. But if you believe that the individual indictments are each evidence of a witch hunt to go after and destroy Donald Trump, then the weight that's accumulating is not weight that's disfavorable to Trump. It's the accumulated weight of witch hunt after witch hunt after witch hunt. That's right. And the accumulated weight can cut in the other direction as well. Now, voters are not monolithic. Individual voters react to it differently.

But I do think for a lot of people, the weight that's accumulating is the weight of Trump's oppression, not the weight of Trump's criminality. I think that's an excellent observation and very true. Ben Wittes, thank you for all of the explanations of all of the legal things going on with Trump and his associates. It was great to talk to you, my friend. Sarah, it is so great to hang out and record podcasts with you again. We should find another TV show to watch and do another show.

Sounds great. And thanks to all of you. Charlie will be back soon, I promise. But my boy Tim Miller will be here tomorrow. Bye-bye. The Buller Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.