The Bulwark Podcast - Lordy, There Are Tapes

Episode Date: June 1, 2023

Trump's own recorded words appear to undercut his already weak defense that he had declassified the documents he took from the White House—and he may have invited a charge under the Espionage Act. Ben Wittes joins Charlie Sykes for the latest edition of The Trump Trials. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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off your first month. That's betterhelp.com. 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. How much legal trouble is Donald J. Trump really in? Are the walls closing in or are we about to find out some people are in fact above the law? Welcome to the Bulwark podcast. I'm Charlie Sykes and this is our new companion podcast, The Trump Trials, that we feature

every Thursday in partnership with Lawfare. Today, potentially huge developments, new audio tapes of Donald Trump talking about classified documents, reports that Jack Smith is scrutinizing how Trump aides handled surveillance cameras at Mar-a-Lago, new interest in the firing of Chris Krebs and the latest developments in the New York prosecution, and a new poll showing a growing number of Americans believe that Trump committed crimes. And joining me again this morning on this June 1st, Lawfare's editor-in-chief, Ben Wittes, the author of the invaluable Dog Shirt Daily newsletter. Good morning, Ben. How are you? Lordy, there are tapes.

There are tapes. You know, that is kind of the amazing thing that after all this time, you realize that there are tapes. Although I suppose it's not that shocking that Donald Trump, who is known for his verbal incontinence, would have just spewed out to somebody, yeah, this does follow the first rule of criminal behavior, which is do not record yourself doing it. And it's not a hard rule to follow. I mean, we're not talking about hidden cameras or somebody being, you know, don't do the crimes in recorded medium. It's just bad practice if you're going to be a criminal. And there's, you know, arguments for and against that. But being a criminal on digital media is really a bad idea. It is ill-advised.

So CNN broke the story. The reporting has been matched by other outlets. But their initial report, federal prosecutors have obtained an audio recording of a summer 2021 meeting, and this took place at his golf club in Bedminster, in which former President Donald Trump acknowledges that he held onto a classified Pentagon document about a potential attack on Iran. Multiple sources told CNN, undercutting his argument that he declassified everything. The recording indicates that Trump understood he retained classified material after leaving the White House, according to the sources. On the recording, Trump's comments suggest that he would like to share the information, but he is aware of limitations on his ability post-presidency to declassify records. And as CNN notes with some understatement,

the revelation that the former president and commander-in-chief has been captured on tape discussing a classified document could raise his legal exposure as he continues his third bid for the White House. Well, yes, it would. So before, Ben, before you weigh in on all this, Andrew Weissman, who is one of the top prosecutors in the Mueller investigation, former assistant U.S. attorney, was on with Nicole Wallace yesterday. And this is into a completely different ballpark when you're at the Department of Justice examining the seriousness of the violation and whether to bring charges. It also is a separate crime to disseminate versus just possess. It differentiates Biden and Pence.

So from just a political perspective, it's huge because it's a way of saying there's no evidence that this happened with respect to President Biden or former Vice President Pence. The information is not just classified information. It's one of the most sensitive types of classified information, which is war plans involving potential attack on Iran. So from every single aspect of this, if this reporting is accurate and there is this tape recording, there will be an indictment. And it is hard to see how, given all of the evidence that we've been talking about, that there will not be a conviction here.

Ooh, all right. I kind of want to slow everybody down here because we've done this before, but give me your sense of this. So he is focusing on the dissemination. So are we talking about obstruction? Are we talking about a violation of the Espionage Act? How do you break this down, Ben? Right, so the first thing we want to do is exactly

what you just said, which is slow everybody down. This is a news story. It appears to be a credibly sourced and reported news story as evidenced by the fact that the New York Times matched it rather quickly, which suggests that the information is verifiable and obtainable by others. But it is a news story based on anonymous sources. CNN candidly acknowledges that they have not heard the tape in question. They've merely had it described to them. And so the gap from what we know to what you would need to know to bring an indictment is non-trivial. And I do think we should be very careful in, without being critical of Andrew Weissman, I will be more circumspect in making predictions than he was. That said, I think the story is an important breakthrough in at least four different respects. And I'm going to get a little bit wonky here. They all relate to the Espionage Act, not to obstruction, by the way.

So the obstruction case arises later when the Justice Department and the National Archive try to retrieve the material and they are stymied and lied to by the Mar-a-Lago folks, that may actually be the meat of the case. But the original sin is the retention of this classified material. And remember, the FBI recovered a lot of it, 100 documents, many, many pages. So the first important thing about this revelation is the date of it, that it took place in the summer of 2021. You'll recall that that is significantly before the matter becomes public. It's significantly before the Trump people develop their defense and their responses, which is, you know, hey, we're allowed to do this, right? So one of the questions that has always hung over the investigation is, was Trump individually responsible for the retention of the material, the taking of the material, or did he merely resist returning it when the National Archives

demanded it? And, you know, there was always this suggestion, well, people just packed up boxes and nobody did anything on purpose. And then when they were asked for it, he said, hey, it's mine, and he refused to return it. This, if you take these facts at face value, seems to answer that question, that he acknowledges here that he retained this document knowing it was classified and knowing that it was improper for him to disseminate it, right? That there were restrictions. So this shows, again, if you take these facts at face value, that Donald Trump took the materials, that he was personally involved in the removal, not just in the retention. That strikes me as a very important component of assessing his personal responsibility. The second thing, this is probably the least important thing, is it shows that he's aware that this material is

classified and there are restrictions on his use of it or dissemination of it. That is, you'll recall his defense was, I'm allowed to do whatever I want. I can just think about material and it declassifies it, right? So I can do whatever I want. And this shows that in the summer of 2021, when handling a particular piece of material, that wasn't the way he thought about it. What he thought about it was, huh, I'd like to do stuff with this, but it's classified at the secret level. Notice it is classified at the secret level, not it was until I thought about it and thereby declassified it. It's in an important sense in significant tension with the defense that he and his people have offered. The third point is that he appears to be sharing it with people who are not authorized to receive classified information. That is a big no-no. It's, you know, depending on who those people are,

that's called a leak, right? It's a leak of classified information, an unauthorized disclosure of classified material. Now, if they were foreign government officials, then that would be spying, right? But you're not allowed to give classified material to people who are not authorized to receive it. And then the fourth element, which is hardly a big surprise, but is, if you're a prosecutor assessing material, you always count this in, is it shows that they've been lying about the whole thing, which is no surprise when you're dealing with Donald Trump. But again, nailing down the no surprises with if you're a prosecutor is really important. And so I look at it and I say, all right, let's be very cautious

about it. People, particularly on cable television, get way too excited about incremental stories about investigations. But these are at least three and maybe four very bad facts that really exacerbate the problem and bring the problem earlier in time and make the problem much more about how the material got out of the White House in a Trump-focused sense and not just about obstruction of the National Archives' efforts to retrieve it. So let's just put this in context, what in fact we're talking about. This is a recording that was made, you know, at his club in Bedminster, New Jersey, when he was meeting with people who were helping his former chief of staff, Mark Meadows, write his memoirs.

These are his ghostwriters or his assistants. And so this was not a secret recording. He knew that he was being recorded at the time. And what he's really talking about, apparently on this recording, he's railing about the chairman of the Joint Chiefs of Staff, Mark Milley. I mean, obviously, we kind of know what his role was in pushing back against some of Donald Trump's more extreme elements. And he's suggesting that he has this document saying that it had been compiled by General Milley and was related to attacking Iran, according to the sources, among other comments. He mentioned his classification abilities during the discussion.

Mr. Trump can be heard handling paper on the tape, though it is not clear it was the document in question. So we don't know. But again, you break this down, and I think you've done a really good job on all of this. I mean, first of all, let's just start with the fact that we're talking about war plans, which are among the most highly classified sensitive documents you can imagine. Although the document itself was apparently classified at the secret level, not at the top secret level. Okay. It's war plans, though. I mean, yeah. It is war plans, but we should mention, you know, both that it's a category of particularly sensitive material, but probably what it means when it's classified secret, not top secret, is that it doesn't involve sources and methods.

Okay. That's important. So, obviously, as you also mentioned, this goes to show, you know, knowledge and intent because the recording indicates that he understood that he retained these classified material, the secret material. This is from Ryan Goodman from Just Security, who writes, the recording also appears to knock a hole in the already weak non-defense, defensive declassification because he suggests that he would like to share the information, but he's aware of the limitations. Now, this is what Goodman says, and I wanted to get your take on this. He says, make no mistake, this is squarely an Espionage Act case. It is not simply an obstruction case. There is now every reason to expect former President Trump will be

charged under 18 U.S.C. 793 sub E of the Espionage Act. The law fits as reported conduct like a hand in a glove. Let me just read you this subsection, which I know you're familiar with. Whoever having unauthorized possession of, access to, or control over any document, writing, codebook, signal book, sketch, photograph, photographic, negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense or information relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted,

or attempts to communicate, deliver, or transmit, or cause to be miswriting, or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it. And it goes on. So this is the subsection of the Espionage Act. I'm still skeptical whether even a very aggressive Jack Smith is goingsection of the Espionage Act. I'm still skeptical whether even a very aggressive Jack Smith is going to use the Espionage Act to go after Donald Trump. But what is your take on all of this? Because that does seem to describe the conduct that's being

reported. So the Espionage Act, first of all, is not only used to prosecute espionage. It is also the standard statute with which the federal government prosecutes leaks of classified information. And so to say that somebody is charged under the Espionage Act is not to say that they committed espionage. You know, although colloquially, that seems weird, the Espionage Act covers a whole lot of activity. It'd make a hell of a headline. Well, it sure would. So I agree with Ryan on all of the analytical points. I'm always hesitant to predict things. And I don't like it when Ryan or Andrew Weissman jumps to say there will be an indictment based on a news story that you can't evaluate the tape the way a prosecutor would. That said, look, Ryan is correct that the statute that

squarely addresses this activity is the Espionage Act. It addresses it in three separate ways. The first is that it prohibits the unauthorized retention of classified material by somebody who is authorized to receive it. So Trump is authorized to receive it. He's not authorized to keep it or to bring it home. There's a sort of anti-hoarding provision of the Espionage Act. The second is you have to give it back when asked. So the Espionage Act doesn't, the law kind of accepts that sometimes there are what are called accidental spills. These are not crimes and they're never prosecuted. So you discover you have some classified information that you're not entitled to have. Maybe it got mixed up with some other stuff. This is the Pence situation. This is the Biden situation.

As far as we know, you have to give it back, right? You have to yield it up when asked or when it's discovered. This appears to suggest that that didn't happen. And then the third is, and the most important element, is you're not allowed to transmit it to people not authorized to receive it. You can't give it to the press. You can't give it to a foreign government. You can't give it to Ben Wittes, even to consult with him about what you should do on a policy issue, right? You can clear the person if you're authorized to do that, but Donald Trump isn't. So you're not allowed to give it to,

or talk about it, or give the information to the guys who were doing the authorized biography of your former chief of staff if they're not authorized to receive it. It seems to me Donald Trump is vulnerable now on all three of these components. And then, and all of that is separate from the question of his vulnerability on the obstruction of the investigation. And so I, with the caveat that I do not like predicting indictments, and I do not like, I think people jump too fast from the fact of an investigation to there's going to be an indictment and thus set up a lot of disappointments. So I dissent from that part of what Ryan said. But beyond that, host of the Bulwark podcast. We created the Bulwark to provide a platform for pro-democracy voices on the center right and the center left for people who are tired of tribalism and who value truth and vigorous yet civil debate about politics and a lot more. And every day we remind you, folks, you are not the crazy ones. So why not head over to thebulwwork.com and take a look around? Every day we produce newsletters and podcasts that will help you make sense of our politics and keep your sanity intact. To get a daily dose of sanity in your inbox, why not try a Bullwork Plus membership free for the next 30 days? To claim this offer, go to thebullwork.com slash charlie.

That's thebullwork.com forward slash charlie. I'm going to get through this together. I promise. Among the other people weighing in on this is a former Trump White House lawyer, Ty Cobb, rather well known in D.C. for the white beard and everything, who's been increasingly vocal on all of this. I believe he was on CNN and he's describing Jack Smith as having his, basically his boot on Donald Trump's neck. Let's just play what Ty Cobb had to say. I don't see any eagerness on the part of Jack Smith and his team to slow down. I think they have their foot on his neck. I noticed that Trump, as he did three days before he was indicted by Alvin Bragg, was raising money today on the

alleged coming indictment by Jack Smith. So I think Trump and his own team believe this is going to come quickly. That is an interesting point, because based on Trump's own comments, I mean, he does seem and, you know, he's acting like somebody who has been told by his attorneys that something is coming. And by the way, there have been some interesting reports about the infighting in the Trump legal team going at one another. I saw a Guardian story about all of this that actually mentioned lawfare. It kind of took a gratuitous shot at you guys. So you're seeing a little bit of disarray there, aren't you? First of all, I want to saying he does not have any interest in

talking to the New York Times or Lawfare. And I believe the reason that he was upset about us is that we had used the verbs complained and whined in describing some of his oral arguments to Judge Eileen Cannon. So proud to have lawfare associated with the New York Times in The Guardian by the president's lawyers. And I just want to say get a little bit of a thicker skin, guys. If you're complaining and whining to a federal judge and somebody describes you as complaining and whining, grow up. Yes, there is a lot of infighting in the Trump legal team. That is, of course, nothing new. This has always been a viper's nest. I think Ty Cobb speaking publicly as an analyst about a former client is actually really bad form and he shouldn't be doing it. And so the mere fact that he's out there talking, you know, and predicting the indictment of his

former client as though he's some sort of dispassionate analyst is a very strange thing for a lawyer to do, you know, and reflects this sort of same, all of these lawyers are kind of protecting their own asses and reputations as well as protecting the client, which is actually their job. Well, and this, of course, is part of the story is that he's assembled this very sort of strange ragtag team of attorneys who are, what a surprise, you know, at each other's throats. This story in The Guardian, the headline is, months of distrust inside Trump legal team led to top lawyers departure. Two Trump lawyers

considered a murder-suicide pact where one would resign if the other was fired. And this is the story of Tim Parlatore, who abruptly resigned two weeks ago from the team, citing irreconcilable differences with Trump's senior advisor and in-house counsel, Boris Epstein. With all due respect, any legal team that relies on Boris Epstein is in deep trouble. I'm sorry. It's just absurd. But again, there's a pattern here that's important, right? Which is that Trump typically acquires very serious, responsible lawyers who then cannot function because they are interfered with by people in this internal kitchen cabinet that make their lives impossible. So think about earlier in the history of the Trump administration, right? You had a very serious lawyer like Don

McGahn, who finds himself in a battle with John Dowd and Ty Cobb, and there were a whole lot of stories about that. Then you have an attorney general like Bill Barr, who, whatever people may think of him, is a very smart and serious guy who can't function because there's a sort of kitchen cabinet of crazy people like Sidney Powell and Rudy Giuliani after the election. And then perhaps less noted upon, but just as important, are the White House Counsel's Office people, Pat Cipollone and Pat Philbin, who are real white shoe Washington lawyers, very serious people, who are entirely marginalized by the outpatient contingent. But this basic theme that you have, you know, a kind of outpatient caucus that makes it impossible to lawyer on behalf of the current or former president, either from the Justice Department or from a law firm, it's a recurrent theme. And the outpatient in chief, of course, is Trump himself, who can't shut up and demands actions from lawyers and takes

actions himself that are simply incompatible with his own best interests as a subject of an investigation, a target of an investigation, or a defendant as he now is in New York. I want to get to the next development of the Mar-a-Lago case, but just to put this whole Iran war plan thing in some context. And again, we're speculating because we haven't actually heard the tape. This Bedminster meeting was with the, again, as I mentioned, two people working on Mark Meadows' memoir. And the memoir does talk about, you know, what appears to be the same meeting, because in the book, they have Trump discussing what he referred to as Mark Milley's plan to attack Iran, even though all the sources are now saying and telling CNN that Milley did not produce this document. I mean, obviously, the U.S. has contingency plans, you know, a lot of different contingency plans for a variety of situations

around the world. But this meeting in Bedminster occurred shortly after the New Yorker's Susan Glasser published a story detailing how General Milley had instructed the Joint Chiefs to ensure that Donald Trump, after the election, did not start a military conflict with Iran as part of his effort to remain in power. There was kind of, remember, there was a fear of sort of wag the dog, pushing back, apparently. Trump brings up this Pentagon document in response to that story and how, you know, he allegedly says, I could show it to people and that it would undermine what General Milley was quoted as saying in The New Yorker. So again, there's a reason why he might have that document. And this is some of the potential motivation here. Other big development, lots of news outlets

reporting over the last two days that the Jack Smith's investigators are looking at how Trump aides handled surveillance cameras at Mar-a-Lago in response to the documents case. So the New York Times reporting investigators are trying to determine whether Trump and some of his aides sought to obstruct the government's efforts to obtain security camera footage from Mar-a-Lago. Investigators have been questioning low-level employees, the people who, you know, played a role in moving the boxes around. And of course, there were also, you know, some suggestions that there had been kind of a dress rehearsal of moving the boxes around. So the first part of our discussion was the potential of using the

Espionage Act. This seems squarely in the obstruction bucket of this investigation. Correct. But it also follows the first rule that I articulated on this show, which is, you know, do not film yourself or use digital media to record your commission of crimes. And that applies both to the Espionage Act and to the obstruction statute. And it also applies to the conspiracy statute, which can be, of course, applied to the obstruction statute. I just think, you know, we need some remedial lessons in, you know, defensive behavior. Yeah, too late to these guys too late. Right, like, do not have stuff on your security cams that you're going to have to turn over. Don't record yourself violating the Espionage Act. Just don't do it. This really does sound, I mean, bad.

In and of itself, this story wouldn't be all that important. But if you frame it in the context of the larger obstruction investigation. And remember, back last summer, the Justice Department already had probable cause to conduct a search warrant at Mar-a-Lago. So you're starting at a high baseline of evidence before any of this ever comes out, right? You already have enough to persuade a federal judge to issue the warrant. Now, you add to that a whole lot of things, right? They've interviewed and put in front of the grand jury just about everybody who works at Mar-a-Lago. So they presumably have a very detailed forensic reconstruction of what happened to these documents, who put them where, who moved them when,

who was told to do what. Very little of that is public, but we know that they know it. And now you have this evidence that, or this suggestion in this story, that part of what they know is that there were efforts to not deliver, to avoid, to tamper with security cam footage, which of course is both an obstruction of its own if it took place, but also is clearly part of this larger pattern, which I think will be framed in terms of conspiracy to obstruct justice, by the way, because it's a long pattern of behavior, right, that incorporates many, many different acts and many different people. And speaking of that, the Washington Post had reported last week that, you know, they have evidence that two Trump employees moved boxes of paper the day before the FBI showed up at Mar-a-Lago to retrieve documents under a subpoena.

And they're suggesting that Trump and his aides carried out what they're calling a dress rehearsal for moving papers before a subpoena was issued. And this is the way the Post connects all the dots. Taken together, the new details of the classified documents investigation suggest a greater breadth and specificity to the instances of possible obstruction found by the FBI and Justice Department than have been previously reported. It also broadens the timeline of possible obstruction episodes that investigators are examining. This is exactly what you're talking about. It is a very detail-rich pattern of conspiracy to obstruct. Yeah, I think you have to imagine, so people have been

frustrated at the pace of this investigation, both under Jack Smith and previously under Merrick Garland, and they've been frustrated at the pace of the January 6th investigation particularly. But I think you have to look at it from Jack Smith's point of view here. And what he wants is a minute-by-minute ability to detail what happened to every single one of these documents from the time they leave the White House until today, or until the time the FBI recovers them. He wants to know what box they're in. He wants to know who handled which boxes. He wants to know which person was instructed by whom to do what with what boxes and what documents and what security cameras. The level of detail of what they are collecting about the handling of the material, it's not just the handling of the material, it's the meta-handling of the material, right?

It's the handling of the people who handled the material. It's the handling of the security cameras that watch the material. If you're a federal prosecutor who's contemplating an indictment against a former president, the number of surprises that you are willing to tolerate is zero. And you want to know every single detail. And what we're learning from these stories is that that's the level at which they're investigating this. And by the way, I think they're right to do it that way. I think you do not want to go into court without total factual mastery of the entire domain.

And so I think they're being very professional, very methodical about it. And what they're finding, at least these stories intimate, is that every rock they turn over, they find some seething mass of slugs. Let's just step back for a moment for the political context, because there's a new poll out from Navigator Research, which is pretty well regarded, suggesting that there is a shift in public opinion, you know, for people who believe that nothing ever matters. Two in three Americans now believe that Trump has committed a crime, which they describe as a notable increase since March. Since late March, the share of Americans who say that Trump has committed a crime has increased by a net of 12 points from net plus 25 in late March to a net of plus 37. That's the comparison of the gap between the number who think Donald Trump has committed a crime versus has not committed a crime. So right now, you have 65% of Americans think that Donald Trump's committed a crime. Only 28% has not committed a crime. Among Republicans,

34% say that they believe Donald Trump has committed a crime, which is up rather substantially since March. 57%, of course, do not. But 34% think that he committed a crime. which is up rather substantially since March. 57%, of course, do not. But 34% think that he committed a crime. And here's the number that really ought to make Republicans nervous. 68% of independents now say that they believe that Donald Trump has committed a crime. So that is a net of 50 points, 68 to 18 in terms of, you know, has committed or has not committed a crime. So this is breaking very badly, incrementally. And I guess the question is, you know, drip, drip, drip. Majorities now support Donald Trump's indictment and think a New York jury made the right decision in the E. Jean Carroll case. So, you know, that's the trend line. So question, is there any data in that poll

about the number of people who believe Trump committed crimes and support him anyway? And that is, I think, the most interesting question. No, they don't have that. But clearly, we've seen from other surveys that there is that universe out there with people who say, yes, we believe that Donald Trump has committed crimes, is a felon, may have sexually assaulted a woman, but we're still going to support him to become president of the United States again, because it's 2023. I think there is a very important difference between the Mar-a-Lago investigation and the January 6th investigation on the one hand, and the previous matters that have resulted in litigation, the New York stuff, the E. Jean Carroll stuff. So both of those have to do, and I take them both extremely seriously, I'm not belittling them, but they both have to do with material, the content of which

was fully known before the case was ever brought. So we know what Trump did with Stormy Daniels and with paying her off. We know that story already. We know what E. Jean Carroll alleges. The question in that civil case was, would a jury believe her, not what are the facts, right? We knew the facts that she claimed. We knew Trump denied them. The Mar-a-Lago investigation actually involves conduct that we don't know, we don't fully understand, which is why, by the way, these stories are so interesting. We learn that there are efforts to monkey with security cameras.

We didn't know that before. We learn that there is the use of a classified document in the summer of 2021 to prep for Mark Meadows' biography or autobiography. We didn't know that. And when this indictment comes, if it comes, it will tell a story. And the broadest outlines of the story, which is that Trump retained improperly classified material and obstructed efforts to retrieve it by the National Archive, we know. But the details of the story, we don't know at all. That story is going to be, you know, dozens and dozens and dozens of pages told in enormous detail. Many of the details will be shocking. And I don't think we know how that affects public opinion. And I think the fact that public opinion appears to be moving even without it suggests to me that Trump may be more vulnerable in the face of repeated indictments based on novel conduct than we all assume. We assume you

indict him, you make him stronger. I'm still not sure that's true when you indict him for conduct that still has the capacity to shock the public because it's stuff we didn't previously know. So a couple of other developments I wanted to ask you about. The Chris Krebs firing while Donald Trump was trying to cling to power. This is a story in the New York Times on Wednesday that Jack Smith has subpoenaed former Trump White House staff members who may have been involved in the firing of Krebs, who was the Trump administration's top cybersecurity official.

People who who forgotten all this. He had said publicly after the election in 2020, that it was the most secure in American history. He said this nine days after the election, which got him fired on November 17th, 2020, two weeks after the election. Trump in a tweet thread claimed that Krebs' statement was highly inaccurate. So apparently, according to The Times, Jack Smith's team have been asking witnesses about efforts by Trump officials to test the loyalty of federal officials and potential hires. Johnny McEntee, who was brought in to overhaul the government's hiring process, was seen going into the grand jury in recent weeks. How does this fit in, do you think, with everything else that we know about this investigation into Trump's

post-election behavior? Because I'm not quite clear how this would be relevant to this investigation, unless this is just another case of Jack Smith dotting every I and crossing every T. What do you think? Well, I don't know. And I think, unlike the Mar-a-Lago investigation, which is sufficiently mature, that people are expecting indictments, and because they're expecting indictments, they are very talkative. I don't mean the prosecutors here, I mean the defense lawyers and the witness lawyers. Unlike that, the January 6th investigation, as pertains to the political echelon, is still something of a black box. We know certain material because, you know, there have been certain litigations, right? You know, was Mike Pence going to have to testify. Certain people have disclosed certain subpoenas, including, for example, this one related to Krebs. But I don't think we have a sense of

what the basic theory of this investigation is. It's much more closely held than the Mar-a-Lago investigation, I think, because there are many fewer witnesses. You know, with the Mar-a-Lago investigation, I think because there are many fewer witnesses. You know, with the Mar-a-Lago investigation, you and I can sit here and say, there is clearly an obstruction investigation, there is clearly an Espionage Act investigation. And by the way, we have documents that prove that. The search warrant specifies the statutes, right? So we really do know what they're investigating. We have a lot of people who have spoken publicly, well, semi-publicly, right, whispered in the ears of reporters about their grand jury testimonies. And so we have a really good sense of the parameters of the investigation. And by the way, the president's lawyers have also corresponded with the National Archives so that we know the parameters of the original dispute very publicly. January 6th committee report, which gives you a sense of what Liz Cheney and Benny Thompson

and their very professional staffs think the Justice Department should be doing. We have a certain amount of grand jury tracking, which reporters have been able to do through litigation and also just through staking things out. We have a bunch of subpoenas, and we kind of have a working theory about what the charges could be against Trump. But that's kind of all we've got. And so I think we need to be cautious about it. It could be that what he's doing is eyes dotting and T's crossing, or it could be that there is something deeply corrupt as well as democratically toxic, which it certainly was the latter, about the firing of Chris Krebs for telling the truth and for, by the way, being the rare person who was a political appointee in the Trump

administration and emerged from the exercise with his professional integrity and reputation enhanced by the exercise. I mean, I think Chris Krebs is one of the only people who can say, I served in the Trump administration and the world is just a much better place because I did that. Well, he would also make then a very effective witness in any trial. So, I mean, that's just something to, you know, put off to the side. One last major development in the New York prosecution, and I want to get a sense whether these are serious motions or whether these are frivolous motions. You know, the D.A. in Manhattan, Alvin Bragg, on Tuesday moved to block Trump's attempt to get a federal court to take over the state criminal case. Because back in May, Trump's lawyers argued that a federal court had jurisdiction because the checks were allegedly written he was president.

Bragg argued the money was paid to Stormy Daniels before the election. He was therefore not a federal officer. So yesterday and Wednesday, Trump's lawyers try to get the judge overseeing this case, Juan Merchan, to step aside because of his family's ties to democratic causes. Apparently, under New York rules, the decision rests with Judge Merchan himself. So what's going on here? Is this the usual sort of just Trump throwing stuff, spaghetti against the wall, or is there a serious argument to be made here? On removal in New York, I don't believe there is a serious argument. We had a pretty detailed piece about this on Lawfare by Seth Barrett Tillman and Josh Blackman, who are two conservative lawyers mostly known for

making relatively Trump-friendly arguments. I don't think there's a good argument for removal in New York. There may be a much better one in Georgia where Trump's activity took place while he was president and maybe arguably in his capacity as president. I think that's a closer question. So I have not reviewed the motion on recusal for Mershon. I know there has been some grumbling from the Trump crowd, including Trump himself, that he has family members who have been involved in political activity. I do not know whether any of that would rise to the level of recusal. I do note that I doubt very much that any of his family members have the kind of political activity that Ginny Thomas is involved in routinely without triggering recusals on her husband's part. So I think the

bar there is quite high, honestly, and I suspect that had he thought he had a conflict with respect to this case, he would have recused already. We'll just have to see how he handles it. Ben Wittes is the editor-in-chief at Lawfare, senior fellow in governance studies at the Brookings Institution. His books include On Making the Presidency, Donald Trump's War on the World's Most Powerful Office, and he is also, perhaps most importantly, the editor and author of the Dog Shirt Daily Newsletter on Substack. Ben, thanks for coming on for our latest episode of Trump Trials. I think we're going to be busy this year. I'm just thinking.

It's going to be a long year. I think it's going to be a fun. Accountability is coming. And we will never have a day in which we will say, geez, what are we going to talk about? There's just nothing to talk about. I have a feeling this is one of those stocks that's going to appreciate rather dramatically in value. Ben, you have a great weekend.

We'll talk to you next week. Take care. And thank you all for listening to today's Bulwark Podcast episode of The Trump Trials. I'm Charlie Sykes. We will be back tomorrow. We'll do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown. This message comes from BetterHelp. Can you think of a time when you didn't feel like you could be yourself? Like you were hiding behind a mask at work and social settings around your family? BetterHelp online therapy is convenient, flexible, and can help you learn to be your authentic self.

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