The Bulwark Podcast - Lauren Windsor and Ben Wittes: A Deep Rot

Episode Date: June 18, 2024

Justice Alito and his wife seem to have some pretty deep and dark feelings about the people they dislike. Tim Miller also asks Lauren Windsor about the ethics of her undercover recordings. Plus, Ben Wittes shares his predictions for a presidential immunity ruling, his praise for Amy Coney Barrett's handing of the case, and his observations about the criminals Trump unapologetically hangs out with. show notes: Justice Alito's 2022 Notre Dame speech Lawfare's piece on a presidential self-pardon

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 and welcome to the Bulwark Podcast. I'm your host, Tim Miller. We got a double header today, but first, isn't it nice to be pleasantly surprised? It's nice to be pleasantly surprised every once in a while. yesterday's podcast i made kind of a snide remark with will salatan about how the senate has a pretty light

schedule this week and despite the fact that the supreme court had overruled the bump stock ban there was not any evidence that democrats were going to actually move on this issue so you can imagine how pleased i was to find out just a couple hours after that, that Chuck Schumer was going to get off his ass and do something. Chuck Schumer announced yesterday that this week they're going to try to pass a bump stock ban. A wave of Senate Democrats came out to support him in that effort. Now the Republicans are obviously going to be able to block this. There are a variety of ways that Republicans could do that. But now Republicans have to actually get on the record and say they are for bump stocks, they are for making semi-automatic rifles, basically machine guns, in order to do that. And so I think that this is one of those cases where the policy is right, for the safety of our country, it is right to do this.

And hopefully the Republicans will get on board. But if the Republicans don't get on board, then it's a political winner for Democrats. Because me tell you this just isn't a winner you know the device that created a mass murder with our 800 rounds fired in in las vegas the republicans want to be the ones defending that device not even a gun then okay well we'll see how that works we'll see how what swing voters think about that. So I was pleasantly surprised. Good news. Good on you, Chuck Schumer. And now I'm delighted to be here today with Lauren Windsor. She's been in the news lately, an activist filmmaker. She's producing a documentary called Gonzo for Democracy. She recently obtained the

audio recordings of Supreme Court Justices Alito and Roberts, plus podcast favorite Martha Ann Alito, Samuel's wife. All of them are on tape. We'll be listening to that. And Lauren, excited to talk to you about the process. Good morning. For people who aren't as familiar with you, I think anyone who, I guess maybe not me since I was on vacation last week, but anyone who wasn't on vacation last week is already familiar with the audio that you obtained.

I managed to even penetrate my consciousness in Quechua, Portugal. But what about you? What's your backstory? How did you become a person that dresses up like a MAGA and shows up to Supreme Court confabs? I mean, I'm not sure that I was dressed up that much MAGA at a Supreme Court gala. I started this show, The Undercurrents, in 2012 with the Young Turks. I had come out of the Occupy movement and launched the web show. For the most part, I was doing straightforward reporting. I was showing up at events and trying to get interviews. So really like running gun,

bird dog reporting. There was some element of undercover work when I was dealing with events that were just impenetrable otherwise. So ALEC conferences, the American Legislative Exchange Council, or Koch Brothers conferences. So I broke a big story in 2014 with several hours of audio from the Koch Brothers retreat that a source gave me. I remember that. I think I was on the Koch Brothers sides back then. So, you know, we were wagging our finger at you. Yeah. That was a huge story because we had all of the Senate candidates on tape. At the time, it was Tom Cotton, Joni Ernst, Cory Gardner. The big story that meant the most to me was the one with Mitch McConnell because he was talking about the worst day of his life being campaign finance reform, the McCain-Feingold

bill passing. So there was undercover work prior to 2020. It just wasn't as big of a component to the work that I do. And that really came about because, you know, once the election happened and it was clear that Trump and his cronies were trying to overturn it, then I felt like this is a situation where I really need to go undercover because people aren't really apt to break out in conversation about their efforts to overturn the election if you're sticking a microphone in their face. So I felt that it was necessary. Yeah, back in 2014, we were actually on dueling sides of secret audio, because it was my group

that had uncovered the Bruce braley audio who was running against joan aaronston that cycle where he said that a farmer shouldn't be running the judiciary committee in retrospect he might have been right about that it was a stupid thing to say um but in retrospect it was very dumb i remember that comment all right well i want to kind of talk about the you know ethics and how you sort of walk the line of undercover video kind of at the end of this, but I think the actual substance is more important. So I want to get into all that first. But before we listen to the audio from the justices, what's your observations from these types of events of stuff that's not on the tape? You know, I spend a decent amount of time

at turning point events and at various, you know, kind of MAGA gatherings. What sense do you get for like kind of the nature of the threat, the nature of the movement, you know, from your time at these events? Well, I wouldn't lump the Alito, the Supreme Court Justice event in with that. It was a nonpartisan event. It wasn't MAGA at all. But you have done other stuff with Project Veritas. Oh, yeah, for sure. But please don't conflate me with Project Veritas. And we can talk about that all you want. We can talk about I have history there. And I don't think that what we do is anywhere in the same ballpark. But going to MAGA events, people are angry. And regardless of what anyone tells them about former President Trump, regardless of the evidence that would show otherwise about President Biden's record, people are really firmly entrenched in what they believe.

And they do really see it as a holy war and with apocalyptic sort of consequences. We're putting out a story today about Roger Stone. And the first time that I had talked to him was last summer at a teenage Florida Republican conference. And in it, he spoke in very stark terms about this is not a fight between liberals and conservatives or Democrats and Republicans. This is a fight about the godly and the godless, light and dark. And if we lose this battle, America will be plunged into a thousand years of darkness. And people believe a lot of this.

They've really attached religious terminology to it, religious imagery to it. And I think that we have to be prepared for that element to only get stronger. I do feel like the people that were spending a lot more time listening to what that crowd was saying, the Roger Stone crowd, was a lot more prepared for what was happening on January 6th than other folks who had their head in the sand. Did you feel that way? Did you sense the tension bubbling up? And how would you compare that to what you're hearing from that world now? Well, so I was on the ground in Georgia. That's right. I broke the story that there would be a Senate challenge with Tommy Tuberville and then David Perdue. And Trump

actually tweeted out both of those stories. And so a lot of people think that it was Josh Hawley that initiated the challenge and then Ted Cruz. It was actually maybe a week, a week and a half before that, I talked to Tommy Tuberville after a campaign event in Atlanta. And Madison Cawthorn was there. He was up on stage saying, you know, we've got to keep fighting for President Trump. We still have cards on the table. And this was in December. I think it was December

17th. So we're talking about a long time after the election. They're saying still fight. We still have a chance at this to win the election, which was nuts. And Tommy Tuberville gets up and he says the same thing. Y'all keep fighting for president Trump. And so when he got off stage, I was like, okay, what are you going to do to keep fighting? It's like, well, y'all seen what's going on over in the house. We're going to have to do it in the Senate too. It just ramped up the pressure on all of the political officials in Georgia to try to do it in the Senate, too. It just ramped up the pressure on all of the political officials in Georgia to try to overturn the election. And it really changed the narrative there because, you know, Kelly Loeffler and David Perdue didn't want to talk about overturning the

election. They wanted to talk about the economy. It's underappreciated, I think, the fact that that Georgia race, I remember the work you're doing there during that time really exacerbated the lead up to january 6th because there wouldn't have been these gathering places right that you were going to necessarily and i guess there would have been the whatever the real america's voice bus tour and stuff but there wouldn't have been quite as intense pressure on these guys to go along i don't think i mean the tubberville would have gone along anyway but the purdue's and the Lefflers and the McConnells. I mean, everybody who was anybody in MAGA world was stumping in Georgia,

and they were using it as a real rallying cry every place they went. To your comment earlier about the Holy War from Roger Stone, let's just start the audio from this recent event by listening to the one person you spoke to that was not actually on the Supreme Court, Mrs. Alito, Martha Ann. She's just a delight. Let's listen to what she had to say to you. You know what I want? I want a sacred heart of Jesus flag because I have to look across the lagoon at the pride flag for the next month. Exactly. And he's like, oh, please

don't put up a flag. I said, I won't do it because I'm deferring to you. But when you are free of this nonsense, I'm putting it up and I'm going to send them a message every day. Maybe every week I'll be changing the flags. There'll be all kinds. I made a flag in my head.

This is how I satisfy myself. I made a flag. It's white. It has yellow and orange flames around it. And in the middle is the word vergogna. Vergogna in Italian means shame. Vergogna. V-E-R-G-O-G-N-A.

Vergogna. Shame, shame, shame on you. You know, anyway. A lot there. Maybe she had seen the Pope Francis story yet, but I do think that Italian word for faggotry that he was saying, that might be a new idea for a flag as well. What was that like?

I mean, you had to, that had to just be kind of surreal, you know, that she just went off like that. Yeah, it was very surreal. And understand that I had no conception of being able to get either of them on the record with anything newsy because they're in the middle of a shit storm, right? They're at the center of a shit storm. I'm thinking they're going to be locked down and at the hardest to penetrate conversationally. But a couple of glasses of wine, I think was a good idea to approach her at that point after the dinner she was definitely the center of attention at the dinner like so were

there a lot of other like did she have some fans at the at the dinner what was the other what was the other uh you know rest of the crowd like everyone gets up from the dinner people are milling about i see justice roberts i make a beeline for him at some point i guess i was regrouping with my colleague and she went over to talk to martha ann and you know i was checking my phone on something and then i was like okay time to go i walked over and you know she just had clusters of people around her. And I walked up, asked her if she was Martha Annalito, and she was raring to go. I mean, she was not shy in any sense whatsoever. How did we get to the pride flag across the lake?

Is that just a random riff that she starts going on or i didn't you know try to open up the conversation necessarily with tell me about your you know obsession with flags your vexillology obsession i did very much you know apologize profusely for the harassment the treatment that she was getting you know so it in reference, obviously, to the flag debacle. Like, this is terrible, what they're doing to you. I wanted to commiserate with her and tell her that I was an ally. So I think that very much being in that place of grievance, she felt like it was an opportunity to go off on it with a sympathetic person

to your point sort of been different if this is like the federalist society dinner right or something where it's like you feel like everybody is on your side but like given the nature of the shit storm that they were in to be like ranting about all the flag ideas all the anti-gay flag ideas you have at a gala where there are other kind of legal minds there it just shows the deepness of the passion or you might say the deepness of the rot going on there and this is what he does one thing that i try to emphasize for people because they a lot of people have missed the fact that this is inside the Supreme Court. So there's a different comfort level there because this is where Justice Alito

works. They're there however many days out of the week. It's almost like home turf, right? And they feel the comfort of that cocoon. I think that had it been outside of the Supreme Court, they definitely might have been more guarded. Well, I'm not sure that any of them were guarded, actually. I want to listen to John Roberts' answer to your question next, because he said exactly what a normal, responsible person should say in this sort of environment. So good on you, John Roberts. But what was the thrust of the question you're trying to get to? Well, the question was, you know, how do we repair the polarization in this country? How do we

repair that rift? The country is in a very tumultuous time. I had asked that question of Alito in 2023. And he said a very normal thing for a justice to say. It was, I don't know. I don't know. I don't know that we have that role so he could have answered in 2024 like he did in 2023 it wouldn't have been newsworthy yeah that's why i juxtaposed the two in the video that i released uh the video transcript so that you can see okay well if you think that alito uh goaded into something, you can see what he said last year, and he didn't say anything like what he said this year. Let's flip it then.

Let's listen to Alito first, and then we'll just play John Roberts right after. You know, as a Catholic, and as someone who really cherishes my faith, I just don't know that we can negotiate with the left in the way that needs to happen for the polarization to end. I think that it's a matter of winning.

I think you're probably right. One side or the other is going to win. I don't know. I mean, there can be a way of living together peacefully, but it's difficult, you know, because there are differences on fundamental things that really can't be compromised. It really can't be compromised. They really can't be compromised.

So it's not like we're going to split the difference. It's difficult to figure out how to live peacefully, I guess, because some people, I don't know, want to be non-binary. I don't understand what's so difficult about that. I guess it is kind of difficult to live peacefully with your neighbors when you're constantly in a flag war with them. Let's listen to what a normal justice would say to that question. Let's listen to John Roberts. But you don't think there's like a role for the court in like guiding us toward a more moral path? No, I think the role for the court is deciding the

cases. If I start, would you want me to be in charge of guiding us toward a more moral path? That's for the people we elect. That's not for lawyers. Well, I guess I just, would you want me to be in charge of guiding us toward a more moral path? That's for the people we elect. That's not for lawyers. Well, I guess I just, I believe that the founders were godly, like, we're Christians. And I think that we live in a Christian nation. And that our Supreme Court should be guiding us in that path. Yeah, I don't know that we live in a Christian nation. I know a lot of Jewish and and muslim friends who would say maybe not uh and it's not our job to do that it's our job to decide the cases as best we can you know we talk have a lot of darkness around here at the bulwark at least the chief justice

of the supreme court still understands the point of our classically liberal republic freedom of religion the interesting thing about the little thing is he didn't like feel like you needed to be pushed that much really by you to just go straight there to like we're in some sort of internal holy war yeah i maybe it was having talked to him the year before there was a different comfort level i'm not entirely sure why he was more forthcoming this year. I guess this gets into the question of, you know, there've been some folks that criticized you about the tactics, but also just kind of about, is this like kind of a leading question? You know, you're meeting somebody at an event and it's like, oh, hey, you know, don't you think we're in a, you know, moral war and that we should be fighting for what's right like that the natural impulse to that is to say well yeah but the problem is that like roberts didn't say well yeah you know i think as as uh caris swisher was there was a panel about this on chris wallace's show on

cnn this weekend and i forget who it was i think it was that was conservative commentating yeah conservative commentators like oh yeah you just placate the questioner a lot of times at these events like caris was just like i don't placate the questioner a lot of times at these events. Like, you're just like, I don't placate people who come up to me and ask me crazy things. And like, that feels right. Like, John Roberts didn't say to you, oh, well, I appreciate your views. And that's great. He's like, no, I'm a Supreme Court justice.

It's my responsibility to say we have equal opportunity under the law, no matter what your religion is or your ideology. We're not in a holy war. And Sam Alito, likeito went exactly the opposite route. Yeah, I think it's really jarring the difference. Anyone who claims otherwise, I think, is trying to provide cover for Alito for partisan reasons. I went this route in this story because how do you get to the bottom of whether or not a justice has bias towards Trump? Asking either of them about Trump or Biden would have probably automatically shut both of them down. And they tell you in the guidance with the event, don't mention anything that has to do with pending business before the court. It's grounds to be expelled from the events.

Even just not wanting to be expelled, just wanting to be able to have a conversation where you might be able to have a little bit more probing questions. It's really difficult with a Supreme Court justice if you're thinking about it in the terms of, okay, what can I ask them that's going to provide a window into their thinking about the Trump immunity case without asking directly about it? And so it seemed to me that polarization was a convenient stand-in where, you know, our religion and politics in this country are really bound up kind of inextricably. So approaching it from the moral and religious angle with Alito seemed to me like the best chance to get him to answer anything that would be, okay, is he kind of already in the tank for Donald Trump in this immunity question? And I think this provides some window into that.

If he's looking at the world in a way of there are some things that can't be compromised and one side has to win, then what does that mean for his decision-making process and his jurisprudence? I think that that is an indicator of heavy bias, but I had heard that Katonji Brown Jackson was there, but I never saw her at any point. I would have asked her the same question had I seen her for a counterpoint. Had she answered differently,

that would have been a huge story too, right? If she had shown some kind of bias. Look, obviously there've been ideological judges, there've been ideological judges, but say we went about Scalia like there's a reason that Scalia and RBG had relationships right there were times when Scalia ruled against what would have been you know kind of the republican position you know because of law because of his reading of the constitution like once you get into a place where we are in a moral holy war with the other side you know it becomes a lot easier to rationalize if you're somebody like Alito. I was reading Constitution, like once you get into a place where we are in a moral holy war with the other side, you know, it becomes a lot easier to rationalize if you're somebody like Alito.

Well, I was reading something about how in his rulings on standing, 100% of the time, he's ruled in favor of conservative litigants, whereas with progressive or, you know, liberal litigants, he's ruled against them and standing 100% of the time is that I think that's accurate I think it's telling um I want to read you a quote I was going back and reading uh Sam Alito's speech at Notre Dame two years ago it's kind of a the quote got a lot of attention from that speech was he was mocking European leaders who were critical of the court's decision on Roe. There's another quote I think is more telling here. He said this, religious liberty is under attack in many places because it's dangerous to those who want to hold complete power. It also probably grows out of something

dark and deep in the human DNA, a tendency to distrust and dislike people who are not like ourselves wow i mean that's kind of like after like you're the quotes from alito from martha ann and samuel alito to you like are just the textbook definition of projection in that quote that they have something dark and deep in their dna that they distrust and dislike people that are not like them and they're going to try to take it out on i was shocked listening to her rant about vergonia i in the moment it was pretty intense let's just say like the enthusiasm she had for creating this flag that would shame her neighbors for being gay. How do you develop that intensity of hatred for your neighbors? And proclaim to be a Christian, it's mind-boggling.

It's disturbing. And proclaim to have a person that lays next to you at night be unbiased and has rulings about laws that will impact all of us. It's deeply concerning. Okay, so you mentioned earlier, don't compare me to Project Veritas. Some people are going to do that. Oh, always. How do you see what you're doing as different from the undercover, you know, Charlie Kirk sting videos

besides maybe their deceptive editing, which they do? Well, besides the deceptive editing, I really first and foremost try to, I think I've only ever gone undercover with public figures. The only time I would publish anything on someone who is more of a civilian with Mrs. Alito, for example, normally wouldn't be someone I would go after, but she's married to a Supreme Court justice and he thrust her into the political world by blaming her for the flags in the first place. So because she was already in the public spotlight,

that to me made it a fair game in that particular situation. But I look at targets of Project Veritas and James O'Keefe, and most of them are mid-level managers, people who might be interns on a campaign. I'm going after someone who is in a position of public trust with the beliefs that this person has violated that public trust and is worthy of having some accountability to that. Do you worry about just feeling corrupted about it do you think about it it was something that i thought about when i was doing oppo and i look back on some of my oppo time and i think you can justify stuff you know in an end justify the means way a lot of ways and um like one thing that stands out you said to alito that you like as a catholic you know like you're

not a catholic um according to your bio so like do you like worry about that why it was raised catholic are you right it's a cradle catholic you're counting it you're counting it as a cradle catholic well i mean i i wasn't born catholic i i was 13 i was baptized and confirmed your bio does say agnostic bisexual but i but you can be a baptized catholic and actually the most i think most catholics are these days in america are catholic and agnostic. I think most Catholics these days in America are Catholic and agnostic technically. So yeah, we'll allow it. I frequently say recovering Catholic. Yeah, there you go. I mean, do you worry about that? Just like that you get corrupted by the process at all of just like wanting to get a good story or wanting to get like, how do you balance that internally? I think lying about my personal background, I think is fair game.

This isn't an employment application. This isn't a contract that I'm writing with someone. This is a conversation that I'm having with someone in public. It's not private. It's not in a bathroom. It's not in a bedroom. I'm not making romantic advances. This is not a bedroom. I'm not making romantic advances. This is not a date. That's another

thing that O'Keefe and Project Veritas like to do is actually troll people on dating apps and go on dates with people. I've talked to victims of theirs where they've kissed this person. Can you imagine the violation of having a video published on you about a political issue and realize that it was all done through someone that you thought was a romantic interest who you actually kissed there's a physical violation there i find really disgusting i think if it's conversational it's fair game i guess it would depend on how outrageous the personal background lie were. I'm sure there are things I wouldn't say. I just would need you to give me an example of something.

I could be like. Well, I don't need to give you an example. This is about internal. This is about getting right with yourself. It's something that I've been working on. At the end of the day, I think that I'll be okay. Someone said that I've gotten lots of hate mails telling me that I'm going working on. At the end of the day, I think that I'll be okay. Someone said that I've gotten lots of hate mails telling me that I'm going to hell.

There was some preacher in an online video that was saying something about, I'm going to meet my maker and I'm going to get my lesson then. I was like, yeah, okay. I think I'll be okay when I meet our maker at the Pearly Gates. I'm satisfied that what I'm doing is in the public

good. And at the end of the day, public servants should be serving the public more than themselves. I'm just trying to aid that process along. Yeah, I think there might be a bigger problem for Martha Ann at the pearly gates. All right, I'll give George Conway the last word. He I think, summed up a defensive view of these tactics saying I just can't get excited about people legally recording conversations in a one party consent jurisdiction particularly when the people being recorded are public figures at a public event I don't say anything publicly to total strangers at cocktail parties that I wouldn't say on national tv I think that last point is the key point right you're being true to yourself and in this case I think Samuel Lito probably would have said what he said to you on

national tv uh because it's not too far away from what he said in that notre dame speech and i think that's the key element of all this and what just should be focused on is the concerns about having somebody with that with that worldview on our highest court any final thoughts for us lauren i would just say and i keep drilling this, is that the reason behind all of this, a major point of the film that I'm producing, Gonzo for Democracy, is we're at a crossroads. Do we want to continue with American secular democracy, or do we want to head down the road of Christian theocracy? And we really have got to hold our leaders to account if we don't want to go in the latter direction.

Agree with that. Actually, one more thing before I close this out. You mentioned you have a Roger Stone story coming out today. What are we going to learn from the man with the Nixon tattoo? So I spoke with him on a couple of occasions. We discussed the first one. It was a Catholics for Catholics event, an evening of prayer for Trump at Mar-a-Lago. He was there with Mike Flynn. And I was trying to delve more into the question of what's that plan

to stop Democrats from stealing the election, the question that I had asked him the prior year. And he was more forthcoming and talking about lawyers, judges, technology, but the courts factored in heavily. It's not a bombshell report, but it's just a window into how Roger Stone is thinking about this election and the importance of the courts. It's a really good tie-in with the reporting from last week. I look forward to reading that and hearing what Roger said. I do think Catholics for Catholics, Roger Stone is a famous swinger. No judgment here if you want to be a swinger, but it does, you know, it does seem to be in conflict. As a fellow recovering Catholic, I can assure you,

it does seem to be in conflict with the tenets of Roman Catholicism. So that's maybe something for him and Martha Ann to think about together. All right, Lauren Windsor, thank you so much. Appreciate your work. Come back soon and we'll be monitoring what you're doing at the Undercurrent and elsewhere. Thanks so much. Great, thank you. All right, up next with Ben Wittes. He's back in the hammock. He's not in the hype house in New York anymore.

Did you get to recover? Did you get any rest post-trial? I got some rest. You know, the Supreme Court's being dilatory with the immunity ruling has created a kind of shabbos for me. But it's bad for the country, but good for me, I guess. Yeah. You know, they're dragging their feet, I think is what we are. So, they're dragging them robes a little bit on the immunity ruling. I want to talk to you about the immunity ruling, but we just had Lauren Windsor on. And so I'm just I'm curious about your view on, you know, both the kind of conversations that she had with Roberts and Alito and the question about kind of whether that's a proper way to reveal the thinkings of the leaders of the justice on our highest court. Let's start with what they said. I thought Roberts's comments were exemplary and exactly

what you would want the chief justice to say. And by the way, I don't think it's that high of a bar that all nine justices just answer that question like John Roberts did. I mean, it's pretty much the fundamental thing about America. You know, it's like the fundamental thing about America is that people get to have different religion. People get to have different views. And we live together in harmony. And all the law does is make sure that people's rights are accommodated no matter what their views are. And if they're not accommodated, that people are held accountable.

It's like first year. Is it even first year law school? It's like high school. It's high school civics. And it's reassuring to know that the chief justice, you know, behind closed doors when being secretly filmed actually expresses the high school civics understanding of things. And, you know, I agree with you. It's not a high bar. But given what Sam Alito had to say, we should appreciate the fact that it was expressed. Look, I thought Alito's comments were, I have nothing to add to everybody who has, you know,

scratched their heads and said, gosh, you know, what the hell. I'm not surprised, given the Notre Dame speech, given the repeated suggestions in opinions that he's written, you know, the consequences of Obergefell are going to be that people like his wife, he never says it, are treated as bigots. And he's complained about that repeatedly. And so it shouldn't really be surprising that he has these views. It does surprise me that people of stature and prominence still feel comfortable expressing these views publicly or semi-publicly. And I think he deserves all the criticism he gets for that. As to the tactic, look, I have been on the other side of this. I have been surreptitiously approached by journalists who were undercover to try to out things about Jim Comey. I forget her name, but she was working for Slate at the time. And I objected to

it. Honestly, I didn't like being engaged that way by a journalist. And if you're asking me as a journalist, do I think it is a good way to gather information? No, I don't. If you're asking me as a citizen, do I disagree with George Conway that I'm not going to get terribly worked up about it? No, I'm not going to get terribly worked up about it. And so if somebody asked me in my capacity as the editor of Lawfare, can I do this? I would say no. Am I going to spend my time criticizing her? No. And do I think it's different from Project Veritas? Yes, it's different from Project Veritas. With Project Veritas, the problem begins with the fact of surreptitious taping. Here, that's really the limit of the problem. It is legal what she did. And my

distaste for it is not the most important thing in the world. That's a John Robertsian take on this, I think. Very appropriate, very measured, basically where I land. I do have to ask, when you were secretly recorded, did you- It wasn't recorded. I was have to ask, when you were secretly recorded, you know, did you just... It wasn't recorded. It was, I was phished. It was an email. That's also very different and violating.

It's how I'm doing this from memory. It wasn't that I was phished. It was that somebody sent to Comey an email purporting to be me to try to get him to click on a link for an article she was writing about, could you get the cybersecurity officials in government to click on a bad link and give up their email addresses? So it was that she posed as me. And then she also, for a separate article, mined a bunch of data about me in order to get to data about Jim. So, again, kosher, but it did feel violative, and I didn't like it.

Okay. Final thing on this. As a personal favor, I'm very hopeful that Martha Ann has not been exposed to your special operations. Because I think the poor gays that live across the lake from her are going to start, instead of flags, anti-gay slurs projected onto their home. And so we shouldn't let her know about this tactic. I will just point out about that, that private houses are different from public diplomatic facilities of foreign nations. I was not comparing it.

No, no, no, no, no. I'm not defending myself. I'm saying if she were to do that, her neighbors would have a remedy probably in local nuisance law that the Russians don't have against me because there's a, you know, you can't claim harassment as the Russian embassy, right? Whereas if your neighbor is shining lasers at your house, I think the local police might have something to say about that. So, if the neighbors need a consult about how to handle Martha Ann with a laser, hit me up. Noted. Good note. And frankly, the Russian embassy is like begging for, you know,

being targeted. They're just asking for it. I want to ask you about the immunity, the robe dragging. I guess that's it. Thoughts? People are expecting this on Thursday, I guess, but I don't know if you have other. Well, look, it could be Thursday. It could come Friday. It could come next week. It could come the week after. We expect it before July 1st is, and I kind of expect it to be a sort of last day of the term sort of thing. So why do some people think it's Thursday? What they're just hopeless optimists? Because it's a decision day. And so everybody's expecting it every decision day. But I'm thinking if you're Sam Alito, and you've dragged this thing out, or if you're Clarence

Thomas, and you've dragged this thing out, why if you're Clarence Thomas and you've dragged this thing out, why not drag it out a few more days because you can. So that's just my instinct. But at the end of the day, the two weeks between now and the end of the term is not going to make much difference. The question is how restrictive or permissive the decision is when it comes out. If it's permissive with respect to the district court, I expect Judge Chutkan will move quickly. She's had a lot of time to get herself ready to move quickly. I also expect, remember that there's two cases that bear on, one is the immunity case, the other is the Fisher case, which has to do with the scope of one of the statutes that's at issue. And I expect the

special counsel will do some very quick reading of the decision, deciding, do we need to drop a couple counts to make this move faster? Do we need to narrow the indictment to if they say certain acts are protected by immunity, you could just drop those acts out of the indictment. So I think what you should expect is you're going to get two decisions and they're not going to do anything until both of the decisions are out because you don't want to have to react twice. Then you're going to see, depending on how those opinions are written, you're going to see the special counsel walk into court and say, we want to drop count three and count one. And we're going to proceed on two and four. And we're going to drop the following passages from the indictment,

and we want a trial date in a week and a half. And, you know, the Trump people are going to respond a la the New Yorker cartoon, no, that doesn't work for us. How about never? Does never work for you? And Judge Tutkin is going to try to set a trial date. She's promised him 88 days. We'll see if she decides to stick with that promise or if she moves ahead faster. But I think, you know, people are going to be surprised at how fast this moves once she has a green light, assuming she gets a green light. Well, the host of the Bullock podcast is certainly kind of surprised by that take. I've chalked this up. I mean, 88 days after July is the end of September. She's really going to hold this trial one month before the election? So remember, she can argue legitimately she was prepared to hold it in May. The reason this trial has been delayed is because of the Trump request

to have this stayed and appealed. The delay is entirely at Trump's request. I have seen no indication from Judge Shutkin that she does not have a fire under her butt about this. Back to the decision side of things, I'm not asking you to be a predictor of what, I guess, who are the swing votes on this, Roberts and Coney Barrett. And why don't you just break that down for us? Like what is kind of expected on how the court is going to break down on the immunity ruling? So I think there are, as best as I can tell, zero votes for the hard version of immunity. Even Justice Alito at the oral argument did not entertain the most extravagant claim of immunity. Joe Biden can just drone Donald Trump. Alito's like, no, I draw the line at that. Right. At droning your political opponents.

I think there will be nine votes for the idea that there is not absolute immunity for everything. There will be, I think, two or three votes for the idea, minimum, that there is no immunity for anything. And so then the question is, in this group that would believe that there is some immunity for official acts, how do they treat the allegations in the indictment with respect to whether they are or are not official acts? Do they say there's absolute immunity for official acts? Do they say there's some qualified immunity for official acts? And how do they define the official acts? Now, Amy Coney Barrett, by the way, whose

performance at oral argument was terrific. I mean, she was a real grown up and very serious. I think Trump thought he was getting Eileen Cannon with Amy Coney Barrett. And she's not exactly been our progressive listeners idea of a model justice probably, but she's at least, she's not Eileen Cannon. But she was a model justice in this oral argument. It was a very serious performance. And she actually walked counsel for Trump through a series of allegations in the indictment and said, is this official or non-official? And he conceded that a lot of it were non-official. And so I think you could imagine five or six votes for saying, you know, there's some form of immunity

for official acts. You know, we remand it to the district court to decide which are the official acts in here. And some group of them saying, but clearly a lot of this is not. And then Jack Smith would have to decide, do you just purge the indictment, file a superseding indictment that's purged of a lot of the stuff that's plausibly official? There's not that much in there that's plausibly official. The stuff about firing the attorney general, replacing him with Jeff Clark, those are official acts, right? The stuff about calling Brad Raffensperger and leaning on him to change votes in your favor, you're not doing that in your capacity as president. You're doing that in your capacity as a candidate for president, right? And so I think there's a lot of that indictment that survives

comfortably if you adopt a reasonable definition of official acts. And I'm pretty confident that neither John Roberts nor Amy Coney Barrett, I would have said until oral argument, Brett Kavanaugh too, but after oral argument, I'm not confident about Kavanaugh. I am confident that the other two are not going to adopt a definition of an official act that swallows all of human behavior. Yeah, I was going to ask you, so if there were a sixth, it would be Kavanaugh? Or Gorsuch, I suppose, but I think both of them were kind of troublingly broad in their conception of the matter i wouldn't count on either of their votes for something reasonable right now one last thing on this so it's remanded back to canon or excuse me chutkin very different

doesn't that also extend this because it creates a period of you know jack smith's got to decide what is you know official what's not the defense can then you know a jack right like like doesn't that create a lot more churn potentially if it's a complex ruling it creates more churn if jack smith decides to defend the indictment as written. But you could imagine a version of this indictment that was stripped down to the bare facts that do not raise any of the concerns that the Supreme Court identifies

that are just purged of that stuff. And, you know, now you can't do that. You can't describe that until you get the Supreme Court ruling. But you can bet your butt that Jack Smith's office has anticipated a variety of options and rewritten, you know, drafts of the indictment in order to accommodate various ways that the Supreme Court could proceed. Steve Bannon has got a report to prison here, barring some last second intervention in the next, you know, 13 days, not that I'm counting. He has a podcast. I don't know if you knew that. He got an interesting phone call yesterday. Let me, let's play that for you.

Hey, Kerry, hang on for one second. I got a call from someone I got to take just to just to hang on okay hey mr president i'm live on tv can i go back i'll call you back sir thank you sir come back sir carrie go ahead continue on your favorite person i think he's commenting i think he's i know i think he's i think he's commenting on your last segment no my favorite people car Kerry, Steve, and Don. I don't think George Bush was calling Scooter Libby. I don't think that Obama was calling Bill Ayers. This stuff just does fall under the radar. We've come to accept this.

It's pretty insane. Steve Bannon's supposed to go to jail in 12 days, and the Republican nominee's just chatting him up. You know, I was sitting in back of Donald Trump one day during the New York trial. And this guy walks in as part of the retinue of, you know, people sitting in back of him. And he's looks like a, pardon me, looks like a fucking mobster. Yeah. And he's got two pinky rings rings the size of like my fist.

And I'm like, who is this guy? He looks like he just walked off the set of, you know, the Sopranos or something. It's not Boris Epstein. It's not. No, no, no, no, no. I know what Boris Epstein looks like. He also looks like he could be on the set of the Sopranos.

No, no, this guy is way more mobster. Like this guy is unmistakably dressing the part, looking like a mobster. I'm like, who is this guy? So fortunately, the Trump campaign every day released a list of the people who were accompanying the president. And so you look at the list and it's like, you know, Matt Gaetz, Laura Trump. And then there's one guy whose name is, I'm not making this up, Chucky Zito. And so it's like, well, clearly this is Chucky Zito. Who the fuck is Chucky Zito? And the answer is Chucky Zito was the head of the New York

Hells Angels. You know, he's got a pretty long rap sheet. And this guy is sitting in back of Donald Trump at his trial. And, you know, this is right around the same time that Trump goes to do that event in the Bronx and there are, you know, look, he unapologetically hangs around with criminals and he is a criminal. The only oddity of it is that he's running as the law and order guy, right? But he's not apologetic or subtle about the fact that he hangs out with criminals. Now, and on this point, other news today is the other man I mentioned, Boris Epstein, guy we know, guy I hung out with in green rooms a lot. He is, you know, been called Trump's wartime consigliere. He's being arraigned today in Arizona on the Arizona election interference charges. I do think that it has to have some

impact on this operation that so many of these guys are in court. It's not just Trump that's in court. That's correct. Epstein's got a prosecution in Arizona. Rudy Giuliani has one, of course, in Georgia and in Arizona. A number of other people Trump is, you know, in an ongoing way associated with are indicted in one jurisdiction or another, often but not always in connection with January 6th stuff. I mean, you know, in Bannon's case, the conviction is for contempt of Congress related to testimony about that, but not directly related to the activity. But look, I don't think we've had a candidate for president ever who was so surrounded by people who are either convicts, some of whom he's pardoned, some of whom he has not, convicts or facing charges. And of course, that makes a certain amount of sense, given the fact that he both is facing charges and is a convict at this point.

Yeah. And as mentioned on yesterday's podcast, the head of Blacks for Trump that he announced last week, Kwame Kilpatrick, another convict that he commuted. Okay. I wanted to get to the lawfare piece. The self-pardon question is coming. I think that's a very interesting question, but it merits more time than we have. So the next time we're together, we'll discuss that. I'll put it in the show notes. People can read it and have a little prep homework as we discuss the hellscape that might be a Donald Trump 2.0, where everybody debates whether he can pardon himself for all of his crimes. Hopefully, we don't ever get there. Ben Wittes, I always appreciate you.

Dog Shirt Daily on Substack, Lawfare, Brookings Institution. We'll be seeing you soon, brother. Take care. All right. We'll be back here tomorrow with a heavyweight. So we'll see you all then. Peace. You might get a little bit on ya And then you might get a little relief

You might meet your double in the middle of midnight You might be feeling the heat On you You don't touch your cover You don't touch your cover You don't catch your free You don't catch your cover You don't catch your free Put my hands up above the cover Your mind don't bother me The Bullwark Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.