The Bulwark Podcast - Jack Smith's Steely-Eyed Gaze

Episode Date: June 15, 2023

The special prosecutor had his eyes on Trump during the arraignment, but Trump—who seemed tired and resigned—didn't even look at him once. Plus, what if Judge Aileen Cannon assists the ex-POTUS with his defense? Lawfare's Ben Wittes and Anna Bower join Charlie Sykes for The Trials of Trump. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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For the second time this week, Donald Trump was indicted. For the second time, he was arraigned and afterwards defiant. Donald Trump said he would retaliate using his own weaponized Department of Justice. So what was it like in the courtroom? What does the indictment tell us? What are the strongest charges? What are the possible weaknesses? What about that judge? And does Jack Smith have a fallback position in New Jersey? And what happens next? And so, of course, joining us once again, Ben Wittes, Editor-in-Chief of Lawfare, Senior Fellow in Governance Studies at the Brookings Institution, and Anna Bauer, Correspondent for Lawfare, who was inside the Miami courtroom when Trump was

arraigned this week. So, first of all, welcome to the podcast, Ben and Anna. Thanks. We have a lot of ground to cover today, but Anna, this is kind of a special treat because you were one of the handful of reporters that was able to get into that courtroom in Miami after standing in line for, did I hear this right? You stood in line for 27 hours. You had to wait for 27 hours to get into that courtroom. I did have to hire someone to come stand in line for me so I could go stash my phone because we weren't allowed to have electronics in the courtroom. But the total time that Lawfare held its spot was 27 hours. Okay, I have to say that I did learn something from you.

I learned the existence of an app called TaskRabbit, where if you're standing in line and you go, I have to go, I have to be someplace else, you can hire somebody through this TaskRabbit to come and stand in line for you? Yes, it's an app that you can hire people to come and... News you can use. Right. Yeah, and you can hire people to do other things on TaskRabbit, other odd jobs. But I think that the TaskRabbit, his name was Richard. He was very confused about why I was asking him to stand in line for a few hours and what exactly was going on. But I think he had a good time. Okay. So the guy signed up on TaskRabbit. Isn't that the whole point? Like, hey,

you need to be available for anything and it could get weird. Right, right, right, right. Okay. So I'm sorry. That was a digression. So, Anna, tell me what it was like in the courtroom. You go into the courtroom, and based on other media accounts, there were a lot of reporters who were very unhappy that they were not able to get in the courtroom. They were in an overflow room, which means they basically watched a camera. You had the opportunity to look around, look at Jack Smith, look at Donald Trump, look at the interaction

between the two. So just tell me what it was like, what happened there? Right. There were dozens of members of the media who wanted to get into that courtroom. They placed us in a holding room from around 8.30 a.m. that morning on the day of the arraignment, and we weren't sure who was going to get into the courtroom, whether it would be on, you know, first come, first serve, or whether they would just select folks to go in. They ultimately kind of did a selection system, so only about 30-something members of the media got in, and I believe it was nine members of the public showed up to go in as well. And the rest of the room was filled with Secret Service agents, U.S. Marshal Service members, other protective detail and law enforcement members. And we walked in,

and I kind of expected that Trump would be brought in after everyone was seated. But it was a bit of a surprise because when you walked in, you could see that he was already seated at the defense table and he was seated next to Waltine Nauda, who is his co-defendant. And just to give you a sense of what it felt like and looked like in the courtroom, you know, it was very quiet in there. You could hear a pin drop. So not the typical pre-hearing kind of murmurs and whispers of people chatting. It was very, very quiet.

And the room was very large. It was held in this very modern courthouse in Miami. And the room was quite spare, but felt very ceremonial and kind of grand because the ceilings were extremely high. The gallery was not very large in terms of where the audience was sitting. I want to say that there are maybe less than a dozen rows there. So it wasn't a lot of people in the audience was sitting. I want to say that there are maybe less than a dozen rows there. So it wasn't a lot of people in the audience, but it kind of felt like being in a cathedral in the midst of a vigil when you walked in because you just have this very high ceiling and a marble slab bench. It just felt very kind of fitting to the seriousness of the circumstances.

And from talking to reporters who were at the Manhattan arraignment, it just had a different kind of feel in the air, a much more serious tone maybe than what it felt like when Trump was arraigned in Manhattan. No chandeliers over the toilets or anything? No chandeliers over the toilets. None of that Mar-a-Lago vibe. Well, Anna, you wrote something rather striking about this. As you looked at Donald Trump sitting at the defense table under this light, overhead, a warm white light appeared to shine directly on the former president,

casting his orange blonde hair in a golden hue. He is both literally and metaphorically in the limelight, yet it strikes me that Trump, the man who positioned bigness as a central issue of American politics, using words like hugely, bigly, little Marco, that Donald Trump looks unmistakably small sitting hunched with his attorneys. So talk to me a little bit about this. So what was Donald Trump's demeanor? Because of course, afterwards, he wants to give out this vibe that he is defiant, that he is unbowed, that this isn't getting to him, that he is, I am your retribution. But what was he like in

that courtroom? How small did he look? Right. He, as I said, because you had this very kind of grand setting of the courtroom and these really high ceilings. And when we walked in, Trump was slumped over and not moving. It was difficult to see his face, obviously, because we were seated behind him. But I did learn from other reporters after the fact who were in the overflow room and had more of a view from seeing Trump know, seeing Trump's face, we were told that during the time before the members of the media came in, Trump had been kind of very animatedly speaking to his counsel, Todd Blanch. And then as soon as members of the media entered and it was announced that the camera had been turned on, he kind of fell silent and was

very still. And it seemed to be the case from what I've heard from others who were in the overflow room that he had a scowl on his face. We did get a glimpse of that when he left the courtroom. He turned around and made a pointed stare at the members of the media and members of the public who were in the audience before he exited the room. And he looked very tired and almost somewhat resigned. It was very interesting. So tell me about Jack Smith. You were able to watch him as they waited for the judge to come in. So tell me about Jack Smith.

What was he doing? Right. That was a surprise. We did not expect that Jack Smith would be seated in the courtroom. It wasn't clear would he be making an appearance at that hearing, but members of the media were seated and this kind of murmur went down the row as a few of us realized that right behind the table where the members of the DOJ prosecution team were waiting to make their appearances, Jack Smith was seated in the gallery on the front row. And there's a lot that's been made of this

stare that Jack Smith made over in Trump's direction, people have commented that, you know, surely this is being blown out of proportion, that this staring that went on with Jack Smith looking over at Trump with this very intense gaze, surely it wasn't that big of a deal. And that's kind of, you know, just the media making a story out of it. But I will say it was a thing. It was very noticeable. You know, I had not had a lot of sleep. So I was like, am I just overthinking this of Jack Smith staring in Trump's direction throughout this? Steely-eyed. Right. But it was real. And other members of the media afterward confirmed that it was very noticeable. And at the end of the hearing, Trump rises from the defense table. He turns around,

looks at the media and the gallery. The whole time, Jack Smith has his eyes trained on Trump. Trump exits to a door on the right. Does Trump look at him? No, Trump does not look at Jack Smith one time. He only ever looks back whenever he looks back at the section that is directly behind him and Jack Smith was on the other side. And then, you know, kind of poetically, Jack Smith exits through a separate door on the opposite side of the room. And then all of us in the room kind of have this moment of just pausing and everyone seems to kind of exhale. And then we all start running out of the courtroom to go and, you know, file our stories and tell the world what happened. Well, just one question about what happened at the hearing, because it was pretty routine. There was a lot of discussion about the conditions of release,

and Donald Trump apparently got a lot of breaks that your average defendant does not get, right? I mean, he was not fingerprinted. He did not have mugshots. They didn't take DNA swabs or anything like that. But as his condition of release, his co-defendant is basically his body man. So how do they resolve that? Is he allowed to talk to Walt Nauda? Is he not allowed to be in the presence of other witnesses? What is the deal? Right. The main part of the hearing that was substantial and that there was any sort of discussion about was these conditions of Trump's release. The government essentially, as you said, was very generous towards Trump and only saying you can't commit any new crimes and you have to show up to

court. Those were the only two things the government wanted. But the judge himself decided that he wanted to impose what's called some special conditions of release. And it is customary that whenever you have a co-defendant situation, very often there is a kind of no contact order, which means that you rule that as a condition of release, the defendants cannot speak with each other except through counsel. Here, however, the judge noted that that would be an impossibility of sorts because Nauda works for Trump and is with him every day as his valet and the kind of man who does everything for Trump. It's kind of a personal assistant slash concierge role. that impossibility of making sure that the two don't talk to each other as a result of the employment situation, the judge said, I'm going to impose a restriction where you can speak to one another, but you can't speak about the case except through counsel. And so then the judge said,

I also don't want you speaking with witnesses or victims in the case. And at first, it seemed like that was going to be a special condition that was imposed as well. But Blanche, Trump's attorney, pushed back on that and said, I don't think that's necessary, Your Honor. There was some back and forth on this. And ultimately, the judge decided that he would kind of do what he did with Nauda, which is just say the government will come up with a list of witnesses. And with those witnesses, Trump and Nauda are not to speak with them about the case except through counsel. So it's not that there's no contact at all, but it's just about the case. Anna, thank you so much for this. I appreciate it very much. Anna is a writer with Lawfare. Thanks for having me. All right, Ben, that was amazing. But let's dive in now to

everything that's been happening now. Some of the headlines I want to talk to you about, this piece in The Atlantic Magazine by Ryan Goodman and Andrew Weissman, Jack Smith's New Jersey backup option, story in the Washington Post that Trump explicitly rejected lawyers' efforts to avoid classified documents indictment. And then, of course, the threats to weaponize the DA. Before we get into all of that, it feels like a lifetime ago. Since you and I last spoke, of course, we had the unsealed indictment. We have all of these details. And even though that was less than a week ago, I do think it's worth spending a little time. What was your reaction as you read this? Because you and I talked about this last Thursday morning before the indictment was formally announced,

and certainly before we knew what the details were, what was your reaction? What jumped out at you from that 47-page indictment? It's one of the best crafted indictments I have ever read, just as a matter of craftsmanship. There is not a sentence in it that is unnecessary or not doing a lot of work. And the more time I have spent with it, the more impressed with it I am. It's crisp. It tells a story. As we discussed last week, it speaks very loudly. And I assume the craftsmanship, the lawyering behind figuring out which are the documents to charge is equally strong. It is going to be a very hard case to litigate because of the amount of classified information involved. And then because this seems to be a matter of

argument, let me just say these charges are as serious as a heart attack. I know of document disclosure cases that are worse, but I don't know of many, and particularly not many that don't involve transmission to foreign governments. compare it to the Hillary Clinton case or to treat it as a routine records management issue that has been criminalized or a weaponization of the Justice Department is just mindless and stupid. There is nobody who would have done conduct like this that would not have been charged as aggressively as this. And I would note that the government as a general matter does not lose these cases. So I just want to stick with this for a moment. You said this is as serious as a heart attack. So what was it that made you think that this was this grave a case? Is it that tape of Donald Trump bragging about having war plans about the possibility of going to war with Iran? Is it other details? Yeah, so there's a few different things that make it really bad. The first is start with, if you go back to the much

maligned Jim Comey statement in closing the Hillary Clinton email investigation in July of 2016. Comey actually very usefully lays out what the difference is between cases that you handle as an administrative matter and don't charge, which is what they did in the Clinton matter, and the cases that you do charge. And he lays out these factors without one of which you will never see a prosecution. And those factors are the following. I'm doing this from memory, so I may get the details a little bit wrong, but this is the gist of it. Number one, large volumes of material or some other indicia that it was done on purpose rather than by accident. But volume matters. You're talking a few stray documents here and there is one thing,

but evidence of hoarding is really significant. Evidence of subsequent dissemination, right? Did you give it to a foreign government? Did you give it to the press? Did you give it to a foreign government? Did you give it to the press? Did you give it to some way that what they're really afraid of, what they're really trying to protect with the classification system is dissemination, right? So is there evidence of dissemination? The third is, is there evidence of obstruction, right? When you're asked for the material back, when it's discovered that you have it, do you shove it in your pants the way John Deutch did? Do you lie the way David Petraeus did, right? These are cases that get charged. Or do you return the stuff the way Hillary Clinton did and Mike Pence did and Joe Biden did? These are cases that don't get charged.

So if you think about this from the Trump point of view, this has all three of those aggravating factors. Number one, there is a grotesque conspiracy to obstruct. That includes lying to your lawyers. It includes spiriting documents out of boxes. It includes all kinds of everything that people are talking about, about the indictment. The second is it includes a very large volume of material. It's 100 documents that the FBI found, plus 38 that Evan Corcoran found, plus all the stuff that they returned voluntarily. This is a lot of pages. It's not an accident, and it was done willfully. The third is evidence of dissemination. Well, we have two incidents of dissemination,

although they're not charging dissemination. They have two incidents of dissemination in the indictment itself, both of which take place at Bedminster and one of which happens to be on tape. And so that's the first thing. The second thing is the level of classification and the nature of the documents. You know, this is not just top secret information. It is top secret information with some of them have SCI classifications. That's secure compartmentalized information. Some of them have special access program markings. This is crown jewels kind of stuff. Some of them are nuclear information. Some of them are battle plans. Hard to become more serious than that. Exactly.

This is the sort of material that is the reason you have a classification system. So I was talking yesterday for today's Lawfare podcast with Heidi Kittrosser, who wrote a piece for Lawfare in which she talked about some of the historical problems of the Espionage Act. And she's a critic of the overuse of the Espionage Act. But she was emphatic and in agreement with me that whatever problems the Espionage Act has, this case doesn't implicate them because this is the kind of material that you have a leaks law to protect. And so I think at every level that one of these cases can be serious, the volume of information, the intentionality of the conduct, the seriousness of the information, this is a super serious case.

Let me read you from this morning's Washington Post, which talks about the decisions that Trump made. Interviews with seven Trump advisors, which talks about the decisions that Trump made. Interviews with seven Trump advisors with knowledge of the probe indicate that Trump misled his own advisors, telling them the boxes contained only newspaper clippings and clothes. He repeatedly refused to give the documents back, even when some of his longest serving advisors warned of peril and some flew to Mar-a-Lago to beg him to return them. When Trump returned 15 boxes earlier this year, leaving at least 64 more at Mar-a-Lago, he told his advisors to put out statements to the National Archives and to the public that everything had been returned, but he quietly kept more than 100 classified documents, which we know. This is the media's paragraph here. Trump, time and again, rejected the advice from lawyers and advisors who urged him to cooperate and instead took the advice of Tom Fitton, the head of the conservative group

Judicial Watch, and a range of others who told him he could legally keep the documents and should fight the Justice Department. Trump would often cite Fitton to others, and Fitton told some of the Trump lawyers that Trump could keep the documents even as they disagreed, the advisors said. So there's a lot going on there. Before we get to the whole Tom Fitton thing, is there any doubt in your mind if Donald Trump had given back all of the documents, there would be no charges today, right? We wouldn't even be having this conversation. There would have been no arraignment. Correct. I don't know of a single case. I've, you know, I've studied the Espionage Act over the years in a lot of different contexts. I don't know of a single case where somebody takes classified material inadvertently, or at least you can't prove that it was done willfully, and then returns it when it's discovered and cooperates fully, and that gets charged. I've just never seen a case like that. Okay. So his lawyers are telling him, just give it back. Tell them what

you have, give it back. And he ignores them or rejects the advice over and over and over again. Instead, turning to this guy, Tom Fitton, who I don't actually believe is a lawyer, which also gives you some idea of the fact that he was told by his legal team, and that's one of the problems he has, that in fact his legal team was thrown under the bus here. But what does it tell you that the former and perhaps future president of the United States gets his legal advice not from his own lawyers, but from somebody like Tom Fitton, that these are the guys who have his ear. Right. So there's an important fact that you've omitted here, which is that Chris Kyes, who is the former Solicitor General of Florida and that Trump spent millions of dollars to bring

on board, went to Trump and said, look, I think I can defuse this situation. Let me go to the Justice Department and negotiate a return of everything and try to defuse this situation. And Trump refuses to let him, apparently on the advice of Tom Fitton. As a non-lawyer myself, I'm not going to disparage him for not being a lawyer. I will say that when you hire lawyers, it is a wise idea to follow the counsel they give you. That's what you're paying them for. And Kyes was, of course, correct. He was advising Trump of a course of conduct that may have averted the indictment. And certainly, if he had been brought on earlier and had managed the entire situation, I think it could have proceeded without an indictment. That said, this isn't the first time that Trump has done this and done it to his

detriment. I have a series of questions that a really smart friend asked me to ask you, okay? Can we just go through them? And believe it or not, I actually have smart friends, and they have questions. Yeah, I'm excited about it. Just give you a preview, then we're going to go back through them. So a lot of people have been wondering about, okay, what happens with this judge, the Eileen Cannon? What are the options? So here are the questions. What options does the government have to get a judge who has not already shown a strong Trump bias? That's number one.

Number two, what options, if any, does the government have if Judge Cannon summarily dismisses the charges? Number three, what options does the government have if the judge rules that piercing the attorney client privilege was good enough for a grand jury but not good enough for her jury and therefore disallows testimony from Evan Corcoran? Number four, can judicial moves during a trial be appealed while the trial is ongoing? Number five, what if those judicial moves, such as not admitting critical testimony, lead to a not guilty verdict? Does the government then have any options or is that the end of the case? And number six, in the

event of a guilty verdict, does the judge have complete discretion to ignore sentencing guidelines and give a suspended sentence on all accounts or throw out the verdict? Okay, so let's just go back through this. So what options does Jack Smith have to get a judge other than Eileen Cannon, or should we just simply assume that they're stuck with Eileen Cannon? So the answer to that question is you have basically three options here other than simply accepting her as the judge. The first is you could ask her to recuse herself and then perhaps appeal it if she refuses. You could ask for her disqualification from the appeals court in the context of some ruling that she made that you didn't like and appealed otherwise, right? So you wait for her to do a ruling that is flamboyantly incorrect, and we can get to the standard for that in a moment.

But you wait for her to do something outrageous, and then you go up on appeal, as they have done with her in the past, and you sort of throw in at the end, oh, and by the way, somebody who rules this way in a situation like this where the law is so obvious is clearly biased against us, and please remand it and assign it to a different judge. And then the third argument is live with it. She is a federal judge. You've shown her that you can get her reversed when she misbehaves. Maybe she's gotten the message. And by the way, the rules of federal criminal trials are much better defined than the rules of the type of case she was dealing with earlier. So maybe she's actually new woke Judge Cannon, and you can try to live with her. And I suspect what they will

actually do is some combination of the second two. That is, they won't preemptively ask her to recuse, but they'll try to live with her until she does something outrageous and then maybe try to get her removed when they go up on appeal on that. This leads to the next question, which is, okay, what if she just summarily dismisses the charges? So it comes before and she says, I'm sorry, I just don't think that the government's going to be able to prove this. And she throws the whole case out. What options does Jack Smith have then?

So that's an easy one because that is an appealable judgment. It's a final order. She would have to dismiss it as a matter of law. It's a final order. She would have to dismiss it as a matter of law. That's a legal interpretation. She doesn't get any deference on appeal. So you basically go up to the appeals court and you say, she's wrong. And any judge who would dismiss this case as a matter of law is clearly biased against us. So please reinstate the case and send it to a judge who's not insane. Okay, so what options does Jack Smith have if she basically throws out the Evan Corcoran

testimony and says, okay, I'm sorry. Yes, you can pierce the attorney-client privilege for grand jury, but not in my court. Right. So this is a much harder question because, first of all, generally speaking, and this answers one of the subsequent questions that you're going to pose, although only partially, generally speaking, judges' interlocutory orders, that is, orders that are short of ending the case, are not appealable, at least not unless the judge agrees to have them appealed. So I think the first thing that would happen if you tried to exclude Evan Corcoran's testimony would be that the Justice Department would ask her

to certify it for interlocutory appeal and say, hey, this is a genuinely contested question. There's a reasonable argument on the other side. And it would be very bad for our case if you were wrong and enforced this order. So let us take you up on this. And I think if she did not do that, boy, that's a complicated question, which we can get to later. But if she allowed it to be appealed, you would appeal it. If she didn't allow it to be appealed, you'd have two options. One is to try to take her up on what's called a writ of mandamus, which is basically an ability to go to the court of appeals when a district judge isn't just wrong,

but is flamboyantly, outrageously wrong, you can go up to the appeals court, even on an interlocutory basis, and say, hey, issue an order for her to do her job under the law because she's not doing it. The standard for that is super, super high. The other possibility would be to try the case without the Corcoran evidence. And when I said this was an exquisitely well-crafted indictment, one of the things that I was thinking about was that it actually is written in a way that a large part of it could proceed without Corcoran's testimony. There's parts of it that couldn't, but all the Espionage Act counts don't require Evan Corcoran's testimony. Only the obstruction counts require Evan Corcoran's testimony, and some of them may not. So you would definitely lose some counts on the obstruction side without Evan Corcoran's testimony, but you would definitely also not lose everything. It is designed in such a way that even if you lost

Evan Corcoran's testimony, you still would be able to proceed on a bunch of stuff. So I think you've answered the fourth question as well. I mean, it would apply to other judicial moves during the trial, which then leads to this fifth question. So let's imagine that she makes a series of rulings throwing out evidence that they are not able to get overturned by the 11th Circuit. And this leads to a not guilty verdict. It's over then, right? Because the government doesn't have any options. They can't appeal those other rulings once the jury has found him not guilty. Is this correct? That's exactly right. But there's a very important process point flowing from that. If you're Eileen Cannon and you're as corrupt as we worry that she is, what you want to do

is issue rulings that impair the government and impair the case, but don't create effectively a final ruling that can be appealed so that you set up exactly that situation. So we get now to the final question here. So if Trump is found guilty in the event of a guilty verdict, judge still has discretion, right? So let's say they find him guilty. Judge Cannon says, I'm sorry, I'm going to set aside that verdict. That's appealable, correct? So I don't know the answer to that question. And I think the answer is probably that you cannot appeal that. Because assuming she does it on the basis that substantively acquits him, you cannot be tried twice for the same offense. Now, if she were to do it on some other basis, like that was a matter of law, that would be appealable. But I think once you have been acquitted, double jeopardy says you cannot be tried again. And I am not a double jeopardy expert, but I think at the point at which you are found to have,

as a matter of fact, not committed the crime beyond a reasonable doubt, that is where double jeopardy kicks in. Okay, so this is interesting because this would be, of course, the most outrageous possible act. And you were describing before how if a judge commits an outrageous act that the prosecutors do have the ability to go to an appeals court. But in this particular case, this is so outrageous that it's not appealable, that it's in a zone by itself. I think it may be appealable, but you can't be retried, right? So it's functionally not appealable. Okay.

This leads me to this other option that's generated a huge amount of buzz, the piece in The Atlantic magazine by Ryan Goodman and Andrew Weissman that suggests that if everything goes sideways, everything goes bad in Eileen Cannon's court in South Florida, that Jack Smith has a backup option that he could bring the charges in New Jersey, the site of the Bedminster Club. And of course, you know, last week, I remember thinking a lot of people were wondering, well, why not? I think there was a lot of speculation that he might bring the indictment in D.C. You explain in great detail why they would shift the venue to South Florida. But the question, why was Bedminster never

searched? And what about what happened there? Because that famous tape of Donald Trump bragging about having war plans, that took place in New Jersey. So what do you think about that as a backup option? Is this a real possibility for Jack Smith? So I do think the, and my colleague Scott Anderson wrote a piece about this in Lawfare that there is evidence in this indictment of criminal activity that took place at Bedminster. And that raises the question, could you have a subsequent indictment at Bedminster in New Jersey? There's also a similar question about Washington, D.C. for the actual removal of the documents from the White House in the first instance. I don't think it is a good idea for Jack Smith to have an indictment

in an alternative venue as a backup plan. I think you should charge these if you think they're appropriate to charge in both locations. From what I understand from the Florida indictment, there would be plausible indictments in both of those jurisdictions. But I don't think you should say, all right, let's see how big a disaster this judge is and then file in an alternative jurisdiction if we really don't like Judge Eileen Cannon. I think the better way to do it is to say, and by the way, you do that before you hear when the case is ready. You say, should we charge a New Jersey case? Should we charge a Washington case? And if the answer to that is yes,

charge them. They may function as a backup plan, but you didn't do it for that reason. If the answer is no, then you litigate the case in Florida and you take your lumps. But I don't think filing duplicative charges as a backup maneuver, you know, we'll convict you in Florida if we can. If we can't, we'll convict you in New Jersey. If we can't, we convict you in Washington. That's, I don't think it's appropriate prosecutorial behavior. You made a brief reference to one of the issues in this trial that makes it somewhat unusual. It is a trial involving very, very secret, very sensitive documents, and yet it has to be a public

trial. That's a complication. How does Jack Smith prosecute this case without revealing the nature of those confidential documents? So the answer is a law called the Classified Information Procedures Act, generally referred to by its acronym SEPA. SEPA is a 1980s era, early 80s era statute that is designed to manage the handling of classified information in criminal cases. Now, unlike every other question we just talked about that involves appeals on an interlocutory basis in criminal matters, SEPA orders by the judge are appealable on an interlocutory basis. And so you should expect a kind of dialogue between Eileen Cannon and the 11th Circuit, if not on Evan Corcoran's testimony or on other evidentiary issues, likely on the handling of classified information issues. These are all appealable

orders. So we ran a lengthy lawfare podcast the other day with a former CIA lawyer named Brian Greer, all about how you handle classified material under SIPA in leaks cases specifically and document retention cases specifically. It is a very complicated little area of the law, and I expect that this will be a principal area of pretrial litigation because you have 31 counts, each involving a highly classified document, that the government has to figure out how to get that document in front of the jury and not release the information in the document to the general public, to adversary intelligence services, and also how can you cross-examine a witness about this document if the witness has to testify in open court? So it's a very complicated problem, even for a judge who is very serious and very earnest,

let alone one who has been neither of those things and not straight shooting and who has very little experience with classified information or discovery. So I think it's pretty clear what Donald Trump's strategy is going to be posing this indictment. He's going to fight this out in the court of public opinion as aggressively or maybe even more aggressively than in the courtroom. There was that, of course, famous scene where he goes to a Cuban restaurant and says, I'm going to buy food for everybody. Apparently now there are reports that he didn't pay the bill, didn't pay anything, didn't pick up the tab, which is so on brand. Donald Jr., as rather openly said, all we need to do is find a few jurors down there in South Florida who could screw this up. But also, I think at a larger, more important point few jurors, you know, down there in South Florida who could screw this up.

But also, I think at a larger, more important point, I wanted to ask you about, the New York Times writes about it, the radical strategy behind Trump's promise to go after Biden. And under normal circumstances, this would be the consuming story. And now it's, it's like number five or number six. But he's made it clear in writing and in every way possible that he's promising that he's going to retaliate against Joe Biden and he's going to appoint a special prosecutor to go after Biden and his family. And as the Times says, this is signaling that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence. I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States, Joe Biden, and the entire Biden crime family.

I will totally obliterate the deep state. And apparently the guy that he wanted to install as attorney general, Jeff Clark, who would do his bidding, has written pieces basically saying, yeah, this whole idea of the Department of Justice being independent, it's a bunch of eyewash. So he's made it very clear. We've been warned in terms of any vestiges of independence in the Department of Justice would be gone in the second Trump term. Yeah. And to be fair to Donald Trump, he's been very consistent about this since the 2016 campaign when he promised to go after Hillary Clinton. He demanded the prosecution of Jim Comey. He beat the drums for the Justice Department to prosecute Comey's deputy, Andy McCabe. He has been very consistent that he does not believe that the law should be, and the criminal

law should be, any kind of a discipline beyond the political needs of those in power, which makes it kind of ironic that he then complains of the weaponization of the Justice Department against him. The Justice Department, by the way, which is under the supervision of a extremely well-regarded, careful man like Merrick Garland, whom there's no evidence of politicization. He both complains of supposed weaponization, even as he promises weaponization. A little bit of projection. Yes, it's more than a little. Back in 2016, when he was still a candidate, I wrote a series of pieces about this exact issue, the weaponization of the Justice Department under Donald Trump. And I think I called it,

it was a series of articles called Trump and the Powers of the Presidency, or Trump and the Powers of the American Presidency. And one of the three articles was very specifically about what he aimed to do with the Justice Department and the extent to which it was accomplishable. So one other case that Donald Trump had this week, on Tuesday, a judge in Manhattan granted E. Jean Carroll's request to revise the defamation lawsuit she'd filed against Trump, adding in his redefamation of her during the CNN town hall meeting. This is an order by Judge Lewis Kaplan of Federal District Court. The order by Judge Kaplan came over Trump's objections. So this involves the Trump diatribe on CNN, which took place the day after he lost that civil jury verdict. So she's now able to tack on

what another 10 million dollars. It enables her to bring in all this recent conduct. Does she have to have a new trial or is it? No well so there are counts in this suit that were never tried because he was president at the time and I haven't looked at these documents carefully, but my understanding is that there's a part of the case that has been tried, a part that was held over, and that this is effectively being added to the part that is held over. It strikes me that the $5 million verdict against him did not sober Donald Trump, didn't back him off. Hey, when you're in the sexual assault and bombast business, defamation and sexual assault

judgments are just, you know, they're a cost of doing business and you price it in and- So $5 million, $15 million, screw them. This is it. That's what I do. You know, it's a few days of fundraising for the RNC. Ben Wittes, thank you so much. I want to thank both Ben Wittes and Anna Bauer from Lawfare for joining us today. It is a busy week. My guess is it's going to be a busy year. So, Ben, you and I will talk again next week.

And we'll do it all over again, as you would say. That's right. Thank you for listening to today's podcast. I'm Charlie Sykes. We will be back on Friday. And yes, we will do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown. Thank you.