The Bulwark Podcast - The Proud Boys: GUILTY

Episode Date: May 4, 2023

It was not an Ocean's 11-style conspiracy that convicted the Proud Boys in their sedition case. But the government made a compelling case that the conspirators' goal was to stop the certification of the election by any means necessary. Plus, the E. Jean Carroll rape case, the Fani Willis investigation, and Clarence Thomas' grifting. Lawfare's Ben Wittes, Roger Parloff, and Anna Bower join Charlie Sykes today. Learn more about your ad choices. Visit podcastchoices.com/adchoices

landlord telling you to just put on another sweater when your apartment is below 21 degrees? Are they suggesting you can just put a bucket under a leak in your ceiling? That's not good enough. Your Toronto apartment should be safe and well-maintained. If it isn't and your landlord isn't responding to maintenance requests, RentSafeTO can help. Learn more at toronto.ca slash rentsafeTO. Welcome to the Bulwark Podcast. I'm Charlie Sykes, and this is the second installment of our new companion podcast, The Trump Trials. Each week on Thursdays, we're going to focus on the prosecutions, criminal investigations, civil cases, and legal issues surrounding the former president, as well as key players in

Trump world. We're partnering with Lawfare, and once again, we are joined by Ben Wittes, editor-in-chief of Lawfare, who is back from London. Good to talk with you again, Ben. Great to be here, and great to have this opportunity to introduce you to some of our people. Well, we are going to have a number of guests, including Roger Parloff, senior editor at Lawfare. Also, Anna Bauer is going to talk about Fonny Willis's investigation. So, of course, we're going to get to the fact that Donald Trump will not be calling any defense witnesses or testifying in the rape case brought by E. Jean Carroll in Manhattan. We're going to talk about that. I want to get an update from Twitter Jail. I want to get your thoughts on Vladimir Putin's possible false flag attack

that he's blaming Ukraine for. But first, we are going to be talking about the bombshell verdict that came down this morning in the Proud Boys sedition trial in Washington, D.C. This is the New York Times account. Four members of the Proud Boys sedition trial in Washington, D.C. This is the New York Times account. Four members of the Proud Boys, including their former leader Enrique Tarrio, were convicted on Thursday of seditious conspiracy for plotting to keep President Donald J. Trump in power after his election defeat by leading a violent mob and attacking the Capitol on January 6, 2021. The jurors in the case failed to reach a decision on the sedition charge for one of the defendants, Dominic Pozzola, although he was convicted of

other serious felonies. The verdicts, coming after seven days of deliberations in federal district court in Washington, were a major blow against one of the country's most notorious far right groups and another milestone in the Justice Department's vast investigation of the country's most notorious far-right groups and another milestone in the Justice Department's vast investigation of the Capitol attack. The trial was the last of three major sedition cases that federal prosecutors brought against key figures in the Capitol attack. And to put this in some perspective for our listeners, you will remember when the issue of the Proud Boys came up during one of the presidential debates in 2020, where the former president was asked about the Proud Boys and he responded that they should stand back and stand by. Do you remember this?

Proud Boys, stand back and stand by. remember this. Well, joining us to discuss this verdict is Roger Parloff, senior editor at Lawfare and a Washington-based journalist who is speaking to us from the courthouse. You were there in the courtroom moments ago, Roger. So first of all, welcome to the podcast. Good to have you. Thanks very much, Charlie. Let's put this in context. The Justice Department went big on this case, a very rare charge of seditious conspiracy. I mean, this goes back to the Civil War. So just give me your sense from 30,000 feet, how big a victory for the Department of Justice was, is how significant are these guilty verdicts? They're very significant.

You know, this, like you say, this is a rare charge and it is hard to succeed. This would be the 14th conviction of seditious conspiracy, 10 by jurors that they have obtained in the January 6th case. And of course, these are the first four by jury of Proud Boys. So it's a huge accomplishment. So without getting too deep into the weeds here, this was a partial verdict. Dominic Pizzola was not convicted of the most serious charges. He was convicted of other charges. Do you have a sense of what might have been going through the jury's mind? And I bring this up because you had written about some of the, what you described as the essential ambiguities in this seditious conspiracy charge. Do you have some sense of what happened here? Yeah. In fact, and of course it's a partial verdict. So by the end of the day, or, you know,

this could change. Maybe there will be more convictions. Maybe some of these will just be dropped. Yeah, the evidence against Pozzola as far as conspiracy was weaker, even though he was a more prominent person in terms of, you know, your viewers have probably seen him on camera because he's the guy that broke out the windows, the two window panes just south of the Senate wing door, allowing the first rioters to jump in. But he did not know the others very well. And he had only been a Proud Boy for about two months. And he was a low-level guy, although he had already been sort of recognized by leadership for his valor in street fighting. So it sort of makes sense that the jury would have a pause about whether he was fully in on this conspiracy. In fact, I would say that about every charge that they have so far not decided, that it sort of helps the other charges in that it shows that this Washington,

D.C. jury was proceeding in a careful way, in a discerning way, and not just, you know, it wasn't just like a hanging judge or something. It's a discerning verdict. In your coverage of this, you highlighted the testimony of a government witness and cooperating proud boy, Matthew Green, who testified that on January 6th, he showed up. He'd been wondering what the plan was, right? He didn't know that it was going to play out the way that in fact it did. So what did he tell the jury?

Yeah, he said he had wondered what the plan was. He had come to the Washington Monument. This big crowd of 200 proud boys has started walking to the Capitol. And that surprised him in itself because he thought they'd be staying and listening to the speech. But when he got there and the barricades fell, it suddenly all gelled for him. And he thought, oh, the S word, this is it. And that was the sort of captures some of the ambiguity of the case. There wasn't evidence that even the defendants got there with a, this wasn't an Ocean's Eleven style conspiracy where they had a plan worked out for months about how they would achieve this. So there was an element of

spontaneity, but the instruction was that even if the meeting of the minds, the agreement, which is the essence of a conspiracy, the agreement to do an unlawful act, even if that occurred on January 6th for the first time, and even if it occurred after the first barricades toppled, that was sufficient. And that's really, assuming that's a correct statement of law, I think the evidence was there to convict and they did. As you wrote, Green also testified that he followed, you know, Dominic Pozzolo through the barrier that day that Pozzolo was already kind of known for his street fighting skills. And Green wanted to be near the action and near Pozzolo. And, you know, if there was going to be a civil war, Green testified, this could be the opening. So, I mean, he understood exactly some of this.

What exactly did the Proud Boys then do on January 6th? They were really the tip of the spear. And although you couldn't say that it was not clear that they caused the toppling of that first barricade, which was really accomplished by a non-proud boy named Ryan Samson and a couple others. They were 20 yards away, even there, at what the government called Breach 1. And when they arrived with 200 people, it changed the complexion of, you know, there was a small crowd when they got there. And when they arrived, that changed the complexion of things.

And they were using a megaphone, and when they arrived that changed the complexion of things and they were using a megaphone and they weren't just saying their usual chant of f antifa they were saying whose house our house whose capital our capital you know 20 yards from the barrier and once it broke they were at the tip of the spear of three additional breaches, which the government considers the first three crucial breaches, and the last being the breaking of the windows by Pozzola, where the rioters start penetrating the building itself. The other two were a black metal fence across the West Plaza that two of the defendants were charged with personally pulling up anchors in the cement. And Breach 3 was a police line under the scaffolding right at a crucial staircase that led up to the level

from which you could break windows and enter through the doors. So we're going to get an explicit rating for this, but the language is, I think, quite telling. You wrote about Pozzola, when he cleared one of the barricade breaches, he was taunting the police officers. And I keep coming back to the party of law and order and the way they treated these cops. And he taunted the officers with, you better be fucking scared. We ain't fucking stopping. Fuck you. And then Pozzola also allegedly obtained a riot shield from one of the officers, and he used it to smash out windows near the Senate wing doors. Another one of the defendants, Zach Rell, made an iPhone video of one of the breaches, including shouts of fuck them, storm the Capitol.

The jury was able to see this video and hear this audio? Oh, absolutely. Yeah, no, there was there was a ton of video for them them to wade through, and it was pretty rough stuff. You also wrote that the chairman of the Proud Boys, Enrique Tarrio, he actually had celebrated the new year with these dark musings on Parler, let's bring in this new year with one word in mind, revolt. He wasn't actually at the Capitol on January 6th, but he was in a hotel room in Baltimore, allegedly helping to drive the attack on the Capitol. So this is where the conspiracy charge comes in, doesn't it? The fact that you don't actually have to be the guy breaking down the doors to be convicted of this if you're pulling the strings. Exactly. The allegation was that he had helped with the planning, or he had really

led the planning, and he had created a special chapter on December 20th. That's the day after Trump issued his tweet calling people to Washington, the will be wild tweet. He created a special chapter of Proud Boys devoted to January 6th. And then, of course, during January 6th, he was also on Parler sort of encouraging things as even once the riot was in full swing, he issued Parler posts like, don't fucking leave 1776, do what needs to be done. And there was one also along the lines of Washington, D.C. doesn't exist anymore. It's now the city of the people of the United States. Come and get it.

Of course, the most damning thing was that at about the same time he wrote a elders group. That's the Proud Boys governing body on one of these encrypted chats. He said at 2.40 p.m. So the riots still totally underway, he said, make no mistake, we did this. So that's a pretty damning piece of evidence. As you wrote, you believe the government did do a good job in proving its case that the defendants were not just rioting, they were there to oppose the lawful transfer of power by force, which is really the key to this, isn't it? That we're not just talking about guys out for a walk who broke windows and did these things.

This was at the heart of the case. Am I right about this, Roger? That it was the fact that this use of force was to oppose the lawful transfer of power. Exactly. That's what makes this so hard to prove. It has to be a conspiracy. A lot of the felonies in January 6th are to obstruct the proceeding. Here, there has to be a conspiracy to either oppose by force the authority of the United States or to, by force, prevent, hinder, and delay execution of any law of the United States, and the laws alleged were the ones that govern the transfer of presidential power. So, yeah.

And as you wrote, one of the cooperating witnesses, you know, a proud boy named Jeremy Bertino, testified that he understood their objective was to stop Joe Biden from being certified as president by any means necessary. I mean, he just laid it out here. So, let me ask you to speculate about something and feel free to say you don't want to speculate about it. But if you're Jack Smith and you're watching this and you're looking at this and you're seeing the way the conspiracy charges played out in court, does this influence you? If the government would have lost its case, it clearly would have been a big blow

to the Department of Justice. It would have been a red light, right, for Jack Smith. What is this? What message does this send to Smith? That is a tough one for me to parse out. On the one hand, the Proud Boys were doing Trump's bidding. That's true that it's the day after that tweet that they organized this committee. On the other hand, sort of the big defense argument for at least two of the defendants was the Proud Boys didn't do this. Trump did. This was their defense. Well, for a couple of them, yeah. They were saying you didn't need a conspiracy.

This was a spontaneous riot. This was the guts of the defense. And they were like the other 1,000, 2,000 people who flooded the restricted zone and entered the Capitol. You know, they were acting in response to him, not a separate conspiracy. The people who've just been convicted of seditious conspiracy are basically saying, wait, we were just doing what Donald Trump asked us to do. He incited this. He instigated this.

We were doing this at his bidding. That's their defense. At least two of them, yes. That's fascinating. So the same morning of this verdict coming down, the Washington Post has a big piece behind Trump's musical tribute to some of the most violent January 6th rioters. Most nights at 9pm, defendants in the January 6, 2021 attacks on the U.S. Capitol flicker the lights in their D.C. jail cells to signal to supporters outside that it's time to sing the star-spangled banner together. The recital has become a sacred ritual for a subset of Donald Trump's movement devoted to heroizing the accused rioters. The former president is now embracing their cause, lending his voice to the recording of the J6 prison choir and playing it to start the first rally of his 2024 presidential campaign.

The song, Justice for All, features Trump reciting the Pledge of Allegiance mixed with the rendition of the national anthem. Our people love those people, Trump went on to say at the rally. Speaking of those who are jailed, what's happening in that prison, it's a hellhole. There are people that shouldn't have been there. And today a federal jury came back and said, no, these guys are felons. They conspired. They engaged in a seditious conspiracy. Rather extraordinary moment, Roger. Thank you so much for joining us. I appreciate it. And thank you for all of your coverage. Thank you for having me. I appreciate it. All right. Well, this is not the only thing that is happening. And we are joined by Anna Bauer, who is Lawfare's Fulton County correspondent, covering Fannie Willis's investigation into

the 2020 election interference. And she is from Georgia. So welcome to the podcast, Anna. Good to have you. Thank you. I'm really happy to be here. Thanks for having me on. Well, the rest of us are sitting and wondering, what is going on? What is taking so long? And Ben and I talked about this on last week's podcast, about the delay and the possible reasons for it.

So you are there on site. And late last week, one of these alternate fake electors, right, Kathy Latham, filed a motion seeking to join Trump's effort to quash the Fulton County Special Grand Jury report and to block evidence gathered during the grand jury investigation. So tell me what's going on here. What is the state of play in Georgia right now? And let's talk about this Kathy Latham aspect. Right. So I think to understand what's going on with the Kathy Latham thing or what we think might be going on, you have to kind of get a little bit of background on things that happened a little bit earlier as well. One of them being that back in the fall, there's these two attorneys,

Kimberly DeBrow and Holly Pearson, and they've been representing 11 of these fake electors in Georgia. And in November, Fannie Willis filed a motion saying that they need to be disqualified from representing all those co-defendants because it creates all these conflicts of interest between the interest of the co-defendants, which is unethical. And so they should be disqualified from representing that group. So Fannie Willis filed this motion to disqualify these attorneys for the fake electors. And when she did that, Judge McBurney, the supervising judge said, you know, you can represent 10 of them, except one, David Schaefer, you know, he needs to get separate

representation. So they split from David Schaefer, and then there were 10. So then that brings us forward to April. And, you know, Fannie Willis files another motion, and she wants to disqualify Kimberly DeBrow, who is representing, you know, these remaining 10 electors. And she claims that not only did DeBrow not offer these immunity deals to the electors, which is a huge, you know, ethical no-no, but she also says that one of the electors in this interview that her staff recently had with the elector claimed that there was some additional criminal conduct that one of the potential co-defendants committed. And so this kind of creates this conflict of interest. Do we know who's paying for this attorney, Kimberly Dubrow, who didn't tell the electors that there was a deal on the table? We do know who is paying for the fake electors,

at least that group of fake electors, it's the Georgia Republican Party. You know, I think they've spent at this point over $300,000 paying for the representation of these electors, according to FEC filings, various other filings as well. So it is interesting that there's that element, of course, that's not supposed to be something that comes into play whenever an attorney is representing folks. Of course, that's not supposed to be something that comes into play whenever an attorney is representing folks. But there is that element in terms of who's paying. What's interesting about the Kathy Latham motion is that she now has a different attorney who filed that motion to join Trump's efforts to kind of block this grand jury report. So the implication there may be that the person

who was called out as doing some kind of additional criminal conduct very well could be Kathy Latham. And I think that's interesting because as you all may be aware, Kathy Latham is, in addition to being a fake elector, she's one of the individuals who was involved in the unauthorized copying of voting machine data in Coffey County on January 7th, 2021. So we do know that Fannie Willis was interested in that element of the plans to copy or seize voting machines. So I think that perhaps that may have something to do with why Kathy Latham now seems to be kind of severed. So let's pull the lens back a little bit here. And again, this is something that Ben and I talked about last week. It is May 4th, 2023.

We had been reliably informed that charges were imminent much earlier in the year. Now it looks like they're not going to be coming until late summer. Just give me your sense of, you know, is this just tangled up? What's your view of what's taking so long? It's hard to say. I think there's a few things. One is that, you know, Fannie Willis did say charging decisions as opposed to, you know, indictments are imminent.

So it may be that she relatively quickly made some charging decisions. And that is one aspect of it. Beyond that, I mean, I think that you've got to realize that some of the January 6th committee materials that were coming out were this trove of materials that any prosecutor would want to very thoroughly look through. There may have been some elements in there that she wanted to follow up on and wanted to continue to do investigative work. We know that her team was doing that because there has been reporting that they sought to interview Christina Bob. You know, also, I think that it's

important to realize that this is a state prosecutor's office. So, you know, it's a team of less than a dozen people. They don't necessarily have the experience and the manpower that an office like DOJ does. And so things might just take a little bit longer whenever they hit an obstacle. You know, and it also seems that they were trying to flip people and that may have taken a little bit longer than they expected. And then finally, it's important to note that Fannie Willis has indicated that she may be eyeing these RICO charges, which is quite uncommon, maybe at the federal level, but it's not necessarily as uncommon in Georgia to go after a RICO prosecution for this type of case. And that's not only just a

really sprawling type of case that you have to really craft the indictment very well. It's probably going to be a speaking indictment that's really long and elaborate. But also, you know, she has a RICO specialist that she hired on her staff. His name is John Floyd, but he's been wrapped up in this other RICO prosecution. And he just argued about two weeks ago, this, you know, constitutional challenge to Georgia's RICO law that some of the attorneys in that case brought. I assume that most people know this, but we ought to at least spell it out that RICO is racketeer-influenced and corrupt organizations. There's a state RICO statute and there's a

federal law. This would be the most complicated kind of case to go for. I mean, this is the kind of case that people bring against, you know, John Gotti and organized crime. It's a conspiracy case, right? I mean, it's much more sweeping than, for example, what Alvin Bragg did up in Manhattan. Right. It's super sweeping. It's meant to go after organized crime. That was the original intent. But in Georgia, it's really broad and it's been used to, you know, go after court clerks who, you know, fudge their, you know, transcripts or hours. It's been used to go after teachers who kind of, you know, come up with a scheme for cheating for their students in public schools. So it's been used in ways in Georgia that I think people are

maybe really unfamiliar with, but it's not as uncommon in these types of situations going after, you know, a political campaign or something like this. It wouldn't be as unusual as it would be if you were to use it at the federal level, but it's just much more complicated, as you said. And so I think that it makes sense for them to put in some additional time. That is fascinating. I mean, that would explain a lot if they are doing that. Anna Bauer will continue to cover all of this. Anna is a law fair's Fulton County correspondent covering that investigation into the 2020 election and interference. And she is from Georgia. Anna, thank you so much for joining us today. Thank you. All right. So back to you, Ben. We've done the Proud Boys. We've done Georgia. Let's talk about

E. Jean Carroll case. I've said this many times. I'm not a lawyer. I don't play one on radio, on television, or on podcasts. I make no projections or judgments on it. But give me your sense of where we're at. There was a kind of a false flare that went up earlier this morning that Donald Trump was going to fly back from Scotland to confront his accusers. That's not apparently going to happen. So he's not going to present any witnesses in this rape trial, and he's not going to testify himself. So where are we at? What do you think, Ben? So as I said last week, I have not followed this case. We don't have somebody in the room like we have, you know, Anna or Roger in these other cases. So I'm working off of the same press

reports that everyone else is. That said, it seems to me if, you know, this is a civil trial, of course, and so if one side puts on evidence and the other side doesn't, it's pretty hard unless the jury finds that the evidence that E. Jean Carroll put on is wholly incredible. It's hard for me to see how the jury gets to anything other than that there is liability here. You know, E. Jean Carroll has put on her own testimony. She has put on the corroborating friends that she talked to at the time. She has put on Donald Trump's own grab-them-by-the-pussies statements and other known conduct in this area. And so, look, you can never predict jury behavior, but it's very hard for me to see how 51% of the evidence does not favor the plaintiff's side here. And so I do expect that a sane jury anyway will find him liable. There are a couple interesting questions here,

though. The first is why he chose not to put on a defense at all other than cross-examining her witnesses, including her, and arguments. And I think there's two possible answers to that. One is that they don't see a way to avoid a liability finding, so they just want to get it over with as quickly as possible, weave it into the witch hunt narrative and move on and just get it out of court as quickly as possible. The other possibility is, which I think is maybe more likely, is that since the only evidence they could put on would be Trump's own testimony disputing E. Jean Carroll's testimony. And there are multiple pending criminal investigations against Trump. The last thing you want to do is to put him on

the stand to testify. There was zero chance he was going to testify. Exactly. And so if you're not going to do that, there's really very little for you to do. And so I think both of those may be a factor here. But I think, you know, now you will have arguments and it will go to a jury relatively quickly. And as I say, I don't see how when one side puts on evidence that isn't whatever you think of Eugene Carroll's testimony, and I found it, you know, quite credible, it's certainly not negatively credible. And so I just don't see how a jury gets to, it's more likely than not that nothing happened here. Remember, the standard is not proof beyond a reasonable doubt. It's preponderance of the evidence. Well, this is something that we need to keep remembering is that this is a civil trial. It

is not a criminal trial, which not only means that the standard is different, but also the rules of evidence. So they are able to introduce things that may not have been allowed in a criminal trial. So this verdict will turn almost solely on whether or not the jurors found her credible, right? I mean, she is the centerpiece. Her testimony was graphic. It was emotionally distressing. The attorney for Donald Trump, Takapina, pressed her on certain inconsistencies, statements she has made, the fact that she can't identify when this happened, what year it happened. Did he make any progress on that? I mean, I've heard some commentators say that he did demonstrate that there are some fuzziness in her testimony, and he was able to at least partially impeach some of her witnesses because their animus to Donald Trump was so well-known and well-publicized. Do you think

that he scored any points there? Sure, I think he did. You know, look, Mr. Takapina has a very difficult job there, which is defending somebody who says he sexually assaults women against a credible allegation of sexual assault by a particular woman of precisely the variety that he has announced that he does. You know, I don't think it was reasonable to expect him to, you know, walk in there and, you know, have a Perry Mason moment in which he reduced her to saying, no, I made the whole thing up. out in the mind of the jury and reminding the jury and bringing out that this is something that allegedly happened a long time ago and she doesn't know precisely when or even at the level of what year it was, let alone the date, that there have been details that have changed in her account of it, and that, you know, she didn't tell anybody other than the people that she told for a very long time, maybe about the best that you can do. And so I think, you know, making sure the jury knows that, and I'm sure he will make a big show of that in closing arguments, is the work that's available to do if you're not

going to put on any evidence. And while this isn't exactly the most elite legal team ever assembled, I think he did it reasonably well. Stepping back from the case a bit, I wrote about this, I wanted to bounce this off of you. This case reminds us that there are 26 women out there who have made accusations of sex abuse and or rape against Donald Trump. And I'm just trying to imagine anyone else in American society, in business, entertainment, sports, any segment of American life, who would be able to survive this. And yet, Donald Trump was elected president and might be elected president again. And it's one of those moments where it is as if we have created, we've carved out an expectation for the presidency that is below the expectation him to an executive position. There's no publicly traded company will put him on the board. You know, none of his billionaire friends would actually trust him with money, right? I'm not sure that a senator, governor, or legislator could survive

this. He wouldn't be allowed to own a team in the NBA, you know, or at the NFL. I'm not sure he'd get a management job at Burger King, right? And the founding fathers, you know, people like, you know, Alexander Hamilton, you know, he wrote The Federalist, you know, said that he was pretty sure, he said, it will not be too strong to say that there will be a constant probability of seeing the presidency filled by characters preeminent for ability and virtue. And I wonder what he would think about the fact that right now, we basically say, yeah, I wouldn't trust this guy to babysit my kids or walk my dog. I wouldn't buy a used car from him, but yeah, I might actually give him back the nuclear code. It's just a strange world where everything's upside down.

Yeah. And I think this case is a very poignant example of that, right? Like, there is, I'm sure, lots of people in the country who choose not to believe E. Jean Carroll, but nobody, if you put them on Dersonian Pentothal, would actually say, hey, the guy who recorded the Access Hollywood video, when a woman comes forward and makes allegations that are exactly consistent with his self-description and that, do you believe her, is really under sodium panethol going to say, no, I think she's making it up. And so I think there's some split in the, and you're a better student of this psychology than I am. this abusiveness to be kind of exciting and transgressive in a way that is, frankly, part of the appeal. Okay, so in the time we have left, a couple of things that I wanted to touch on that are not directly related to the trials of Donald Trump. We have the story from ProPublica. Clarence Thomas had a child in private school. Harlan Crowe paid the tuition, this billionaire friend of his,

paid for the private tuition for a grandnephew of Clarence Thomas, somebody that Thomas said he was raising as a son. Former White House ethics lawyer says this was way outside the norm. So Harlan Crowe was paying something like $6,200 a month for the tuition for this child. So give me your sense about the continuing ethical questions about Supreme Court justices. And if you were the Chief Justice, John Roberts, what would you be thinking right now and what would you be doing? I mean, how bad is this story? Yeah, so there's a few different elements of this. Let's start with how bad the story is. And I want to distinguish between the Thomas part of the story and the other parts of the story. I honestly think the parts of the story involving the chief justice himself, which is that his wife is a law firm lawyer recruiter who's done some work with law firms

that have business in front of the Supreme Court. I think that is a non-issue, frankly. And similarly, I think Neil Gorsuch selling his house in Colorado to a lawyer whom he didn't know in Colorado is sort of a non-issue. The Clarence Thomas stuff is awful, and much lesser gratuities in the late 1960s caused Abe Fortas to have to resign from the Supreme Court. And those amounts of money were, even I think in inflation-adjusted terms, small compared to what Thomas has received from this billionaire. I don't understand, honestly, the difference between paying your child's or adopted child nephew's tuition over a long period of time, simply extending a salary. And, you know, if we said Clarence Thomas, and ditto, you know, having a house renovated by and purchased for his mother, which she lives in rent-free forever.

This has gone far beyond hospitality and just, you know, hanging out. Yes, it's far beyond hospitality. It's far beyond, honestly, things that should be allowed. It's basically a second living that Clarence Thomas is getting from this guy. And you can't dismiss it as, hey, when a judge in Colorado moves to Washington, he has to sell his house and somebody who's about as rich as him is going to be the one who buys it, and that's likely to be a lawyer. That doesn't turn my head in the same way. The Clarence Thomas stuff is really, really shocking, and people have been forced off the court for less. Okay, so that's my next question is, you know, what's different between now and when Abe Fortas was forced to resign? Will anything happen? So when I asked the question, what should John Roberts do? I mean, how would you characterize the ethical clout over the court? And if you are an institutionalist and you are concerned about the credibility of the court, what should you be doing? Is there any step that if Chief Justice Roberts called you up and said, what do I do now? What do you think I should do? Should we unilaterally impose an ethics code on ourselves? What? Let's start with the observation that the Chief Justiceship in this sense is a very weak

position, right? There's not that much he can do on his own. He cannot force Clarence Thomas to resign, although he could go to him and say, you are bringing disgrace upon the court, I think you should resign, but that's not likely to be very moving to Thomas, who has all but said publicly that he doesn't respect the chief. He could energetically embrace the idea of a judicial code of ethics. However, doing that without the buy-in from his colleagues query whether it would be more than a hortatory statement. I think the thing that he could do that would at least be significant would be to acknowledge that there's a real problem here. And, you know, to acknowledge that justices have done things that we would think are inappropriate from any other public officials, and that justices shouldn't be doing these things, and he should be willing to criticize

his colleagues, and he shouldn't be honestly dodging congressional, the appearance at the Senate. You know, I see no reason why he shouldn't go address this issue forthrightly in front of the Senate. So if he called me, and he won't, to ask for one piece of advice, the one piece of advice I would give him would be go face the issue directly and acknowledge that what some of your colleagues have done here is inappropriate and brings discredit upon the court, erodes trust in the court, and that you would support change and you are pushing for change to make it harder to behave in ways that do that. And I think that would help a little bit. But at the end of the day, if Clarence Thomas is not ashamed of this, and the Congress is not prepared to impeach him, there isn't that much that can be

done. Well, that's what I suspected. And there's so many awful aspects of this, but one that just jumps out at me is, you know, the failure to disclose. If there's nothing wrong here, this should have all been disclosed. And certainly after the first reports about all of the trips and, you know, then the report about, you know, his mother's house, you would think that somebody in the Supreme Court or in Clarence Thomas' world would have said, okay, you know what, we need to get all this stuff out right now. We can't have this drip, drip, drip. And yet they managed to not disclose all of this. And I'm noticing just the emotional level of the response,

the people who are just really pushing back. You probably saw Mike Lee essentially saying that this was some sort of a racist attack, that only bigots are raising this. And they tweeted out that I admitted that I did not have Mike Lee playing the race card on my 2023 bingo card. But I mean, come on. I mean, the race card thing is completely offensive. If Ruth Bader Ginsburg had been on the take from George Soros to the tune of $6,000 a month for a child or grandchild's tuition, plus vacations, plus... This is great. Mike Lee would be out there standing with a bayoneted weapon in front of the Supreme Court demanding her head on a pike. This is a great point. I mean, honestly, Ruth Bader Ginsburg had all of these arrangements with George Soros.

Go. Tell me how they would cover it at the Washington Examiner, at the Free Beacon, at the National Review. All of these folks, what would they be saying about it? What would we be hearing from Mike Lee if George Soros was paying Ruth Bader Ginsburg, was renting a house for her, was flying her around the world, or paid the tuition for her nephew? I mean, come on. One last question I had for you on a subject that I know is near and dear to your heart, the war in Ukraine, and of course, the great mystery, who did it? Who was behind the apparent drone attack on the Kremlin? There's a lot of speculation that this might have been a false flag, the Kremlin, you know, Vladimir Putin,

using this as a pretext to really rattle some sabers. What is your take? What do you think happened? And what should we be concerned about going forward? Okay, so I addressed this issue briefly last night on my sub stack, Dog Shirt Daily. I think there's three points to make. The first is that we don't know who is behind this. And there is a good case to make that it was the Ukrainians. They are definitely interested in using drones and bringing the war home to Russia. The Russians have also responded to this in a way that is very different from prior Ukrainian attacks inside Russia. They've tried to make a propaganda thing out of it, and that always raises the false flag question. Oh, and the

Ukrainians have flatly denied it. Normally, when they do something that's, you know, an aggressive attack inside Russia, they never confirm it because they don't want to antagonize the United States or the Western European countries. But they do, they make kind of wink-wink jokes, like, you know, it's a shame things keep seeming to blow up in Russia, you know, or people should be careful where they smoke cigarettes. They're not doing that here. They're actively denying it, and that's at the presidential level. So, you know, I think you should keep in mind both the possibility that it's a Ukrainian operation, and secondly, the possibility that it's a Ukrainian operation and secondly the possibility that it is a false flag Russian operation. The second point is if it

is a Ukrainian operation is a completely legitimate and lawful one. The Kremlin is the official residence of the president of the Russian Federation. The president of the Russian Federation is the commander-in-chief of the Russian armed forces The President of the Russian Federation is the Commander-in-Chief of the Russian Armed Forces. So this is a lawful target. And if it was an effort to kill Vladimir Putin, that is not unlawful. And the third point is U.S. officials are very squeamish, and I understand why, about attacks inside Russia. And they don't want U.S. weapons used for that purpose, and they're afraid of the escalatory potential of it. I'm a lot less squeamish about it. I think bringing the war home to Moscow is a very good

idea for the Ukrainians. And making sure the Ukrainians know, we know you can hit us in Kiev, but, you know, we can also hit you in Moscow, including at the fortress that is the seat of the Russian government. I think sending that message every now and then, if only in symbolic ways, has a very Doolittle Raiders kind of vibe to it. It was important to us early in World War II to hit the Japanese mainland, and we expended resources and lives to get it done, even for totally symbolic purposes. And that is similar to what this operation is, if it is in fact a Ukrainian operation, which I don't know. We didn't deny the doodle-little bombing of Tokyo.

Correct. If I had to force you to choose, would you say that it was the Ukrainians or do you think it's false flag? I guess I would say, I would guess false flag, but only by a hair. I can really make a case either way. Yeah, in my newsletter, I excerpted from Tom Nichols, who thinks that the most likely scenario is that it is a Russian government put-up job from start to finish. And he points out that, you know, the attack on the Kremlin gives Putin the rationalization he's been seeking for some kind of a dramatic and murderous action that might not make any military sense, but that would destabilize Ukraine and unsettle the world on

the eve of this counteroffensive. And of course, they've been doing this, there's a, you know, the faking a drone attack would fit in, he writes, into the long standing Russian affinity for false flag operations, you know, even though conspiracy theorists in the United States often, you know, come up with these unfounded claims of false flag, the reality is the, you know, Moscow has been particularly fond of them all the way back to the Soviet period. So this might be the same play. We just don't know at this point. And by the way, there is an actor who is worth following on this because it can be expected to be relatively trustworthy. And that's the United States intelligence community. And over the next few days, watch the press for reports of, they won't release it publicly, but yesterday,

Anthony Blinken, undoubtedly informed by intelligence estimates, said, we really don't know. Take the Russian claims with a big grain of salt. Over time, you will hear U.S. officials reflecting the intelligence briefings that they're getting, shading this in one direction or another. We think this was likely a false flag operation, or they will shut up about it entirely, which means it was the Ukrainians. U.S. intelligence has every incentive to get this right. So my inclination is let's wait until we hear from them. Ben Wittes is editor-in-chief at Lawfare, senior fellow in governance studies at the Brookings Institution. He also writes the must-read Dog Shirt Daily on Substack.

Roger Parloff is senior editor at Lawfare and a Washington-based journalist, also a recovering attorney. And Anna Bauer is a lawfare's Fulton County correspondent covering Fonny Willis's investigation into the 2020 election. And she is from Georgia. Thank you for joining us for the second edition of The Trump Trials. We'll be back tomorrow and we will do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.