The Bulwark Podcast - Thumbprints on a Conspiracy?

Episode Date: August 17, 2023

Could Trump have been dumb enough to use Twitter DMs for his plot? Plus, the dangers of not fearing the law, the politics of four indictments, and the irony of whining about election fraud and then being indicted for conspiring to commit it. Ben Wittes and Anna Bower join Charlie Sykes for The Trump Trials. show notes: https://www.lawfaremedia.org/article/the-fulton-county-indictment-an-initial-examination https://www.lawfaremedia.org/article/what-the-heck-happened-in-coffee-county-georgia

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Wittes, editor-in-chief of Lawfare, who is speaking to us from Helsinki. Good morning, Helsinki, Ben. I'm not in Helsinki anymore. I am in the small Estonian town of Narva, which is right on the Russian border. And as I look out my hotel room window, I could literally throw a baseball into Russia right now if I had a better arm than I do. You can see Russia from your window. In a fashion that is much more literal than Sarah Palin. I am probably about a football field and a half from the Russian border. By the way, just on a serious and unrelated note to anything we're going to talk about today, if anybody has any doubt about the importance of NATO in defending human freedom, I invite them to come to this town. You know, this is something that's occurred to me over and over again. We talk a lot about courage, but what must it be like to be, you know, in Latvia, Lithuania, and Estonia with their history of being dominated by the Soviets right across the border and then standing up against them?

I mean, it's right there. This is not theoretical. This is not something that they have to deal with in seminars. They can look out their window and see where the bear is, right the freak there. And when Stalin was finished destroying it, he refused to allow Estonians to come back to it and populated it entirely with Russians. So this is a Russian-speaking city in Estonia. And to this day, it is populated by entirely, almost entirely by Russian-speaking Estonians. And when you walk down the street, you not only are separated by a narrow river from the Russian city of Ivangorod, and the river, by the way, has a maritime border in it. You can see buoys in the river that, you know, if you're on the wrong side of those buoys, you're in Russia. But there are also buildings in this town that were prisoner of war facilities where thousands of people died. And so, yeah, it is really not a joke. Well, what's happening here back home, Ben, as you know, is also not a joke. I want to get to

the Fulton County indictments in a moment. But let's just start with this, because we've had a lot of conversations about the threat of violence, the cloud of intimidation and threat over these charges. Donald Trump pledging, you come after me, I'm coming after you. The latest story, which I assume you've seen, a Texas woman has been charged with leaving a voicemail message saying that she would kill the federal judge overseeing Trump's criminal case in Washington, D.C. A woman named Abigail Jo Shree called the chambers of Judge Tanya Chutkan and left a voicemail message threatening to kill anyone who went after President Trump. Lots of racist comments against Chutkan, who is African-American. The prosecutors say that

Shry called the judge a stupid slave N-word in the voicemail and said, if Trump doesn't get elected in 2024, we are coming to kill you. So tread lightly, bitch. You are in our sights. We want to kill you. It feels as if we are flicking matches on a kerosene fire on a daily basis, and no one is restraining it. Your thoughts about all of this, and I know it's almost getting old at this point, but to ask, how much leeway are the courts, all of the courts going to give Donald Trump? Because the threats against jurors, witnesses, and judges are not just theoretical. They're actually happening. We have people who are making these threats. If you pay any attention to what's happened in places like Italy or Colombia, attacks on the justice system become part of the culture. So, I mean, obviously, we ought to be concerned. So, I'm not going to ask you, should we be concerned? I mean, I think we ought to be very alarmed. But

what do you think, Ben? How much leeway are the courts going to give Donald Trump? It's a tough question, isn't it? It is a tough question, because it's bounded on one side by the need to, you know, not interfere in a presidential campaign, which is, of course, what Trump is accusing the courts of doing, and the courts actually don't want to do, and the prosecutors don't want to do. And so you don't want to do anything that is going to reasonably interfere with his First Amendment right to have a campaign and also the First Amendment, you know, rights of people to participate in that campaign. On the other hand, I'm a genuinely soft on crime guy as a general matter. I get very allergic to really tough sentencing regimes.

There are a few exceptions to that. And one of them is this. I think there needs to be a zero tolerance policy or something really close to it, to things that threaten the integrity of the system. And, you know, I'm willing to believe in all kinds of second and third and fourth chances for people who've done bad things in life. But when you come after a federal judge who's handling a tough case, I really think the system's got to come down really hard on you. And one of the reasons that I am more sympathetic to the way the Justice Department handled the post-January 6th stuff than a lot of people are,

that is focusing on the violent people and everybody who showed up at January 6th and crossed the legal line, is that I think it had a major deterrent effect. And I think for the Justice Department to say, hey, we've got a statute of limitations on the political echelon. And what's really important right now is that we deter people from engaging in violent activity associated with Joe Biden's inauguration, associated with the 2022 campaign, associated with these indictments of Donald Trump, right? And we've had very little actual, you know, violent activity. And that was not a foregone conclusion, right? That is partly, and we'll never know how much, that's partly the result of deterrence from 1200 January 6th

prosecutions. I think every time somebody threatens a federal judge, you know, the FBI needs to be at their door as quickly as possible. And that's true in low profile cases, by the way, as well as high profile cases. You know, people forget this, but there are folks who've had federal judges killed. And there is a famous case of somebody who actually had a white supremacist who actually had a plot to kill a federal judge and ended up killing her whole family. And I just think the system doesn't work if people fear for their lives for participating in it. And, you know, I think the system has to be very severe about this sort of thing. I wish I shared your optimism about the effectiveness of the deterrence. I wonder whether or not we're simply seeing a hiatus because the

rhetoric is ramping up. You have lone actors like the heavily armed MAGA guy from Utah who was just killed by the FBI. I mean, I wonder whether it would help at some point if even if they cannot bring themselves to criticize Trump for his actual crimes, if other Republicans would stand up and say this would be a moment for you to stop making threats, stop pledging retribution, tone down your rhetoric. You would think that at minimum, if they did that. As the excellent Will Salatan article and sort of mini book and podcast series reflects, Lindsey Graham evolved into somebody who threatens violence, and that needs to stop. So look, I don't mean to say that the deterrence was total or was permanent. Just think what might have happened had whatever deterrent effect we saw not been present. You know,

we had a bomb threat against the Brookings Institution directed at my then-lawfare colleague Susan Hennessey, you know, who's now a Justice Department official. And, you know, the FBI went and arrested the guy who was in New Orleans and has subsequently, I believe, is now deceased. He died while awaiting trial. You know, if people are afraid to participate in the system, the system grinds to a halt. And there just has to be an ongoing... I agree with that. And to his credit, if you listen to Merrick Garland's one-year anniversary of January 6th speech, he focuses on this issue like a laser beam. And it's not just political people he was

talking about or judges, it was flight attendants, right? It's, at the time, there was an epidemic of attacks on flight crews over mask requirements. And he took the view, and I just really agree with him, that the system needs to take this stuff really seriously. And so I think Judge Chutkin's office deserves credit for taking her safety seriously. And the FBI and the marshals, I don't know who did the investigation, deserve credit for bringing it to a rapid and conclusion. And it needs to be, you know, these cases need to be resolved in a very firm way. Well, I agree. Now, I want to get into the details of the case, because on the Trump trials,

we want to talk about the legal issues, what happens in the courtroom, but it's impossible not to talk about the political context, at least briefly. I mean, now, we're at this moment right now, here, you know, August 17th, Donald Trump faces 91, I'm reading from Keith Boykin's tweet here, 91 criminal charges, 26 sexual assault allegations, four separate indictments. He's been impeached twice. His company has been convicted. His fake charity has been shut down. But as we know, Trump is still the dominant figure in the Republican Party. He leads in the latest Quinnipiac poll, Trump leads DeSantis by 39 points. He has 57% of Republicans supporting him over everybody else in the field. 63% of Republicans still want Trump to run again. He has 57% of Republicans supporting him over everybody else in the field. 63% of

Republicans still want Trump to run again. He's got a 70% approval rating among Republicans. But there are also numbers suggesting, and this is where I wanted to get your take on this, because I think that we're becoming newer to this culture of LOL, nothing matters, nothing ever makes a difference. In fact, this new AP poll out shows that nearly two-thirds of Americans, 64%, say they either definitely or probably would not support Donald Trump in a general election. I mean, we've been navel-gazing and focus grouping about, you know, the MAGA voters out there. But meanwhile, nearly two-thirds of Americans are saying that they are done with

Donald Trump. And also, you break down these numbers. And in terms of the number of people who say that Trump's done nothing wrong, that he's completely innocent, Aaron Blake from the Washington Post looked at the poll numbers and said, look, basically about one in five Americans say they believe Trump did nothing wrong in each of the four legal cases. And if you ask how many people say that Trump did wrong in none of them, that he's completely innocent, you're down to about 7% of Americans think that Trump is just a completely innocent man. And more interesting, only 16% of Republicans say he did nothing wrong. So I'm just looking at some of these polls today. Quinnipiac, 54% say they want to see him prosecuted. Even a Fox poll says that a majority of Americans think that he did something illegal

here. He's got a 35% favorable rating. So I think that at the moment, we ought to challenge the conventional wisdom that nothing matters or this constant narrative that every time he gets indicted, he gets stronger. He may get stronger in the Republican Party, but this is not good news for Donald Trump in 2024. Yes. So I am not a political analyst, as you know, and the bulwark has about 10 people who are better positioned, including you, to address the politics than I am. I will just say the following. I have to believe, as a matter of democratic faith, that four indictments has to matter. You're not talking about, all right, the first one you could say, well, who hasn't paid off a porn star? And by the way, it's not that different from

the Monica Lewinsky stuff, right? Paying off a porn star and hiding it is kind of like lying under oath about having an affair with an intern. It's not exactly the same thing, but it's in the same ballpark, right? And we tolerated it with Bill Clinton, who was never charged, reached a kind of effectively a plea deal. And so like, we didn't think of him as disqualified. So we shouldn't think of Trump as disqualified. I deeply disagree with that, by the way. And I actually was not a really totally okay with the disposition in Clinton's case either. But I can understand how if it were just that one, you shrug it off and you say, okay, yeah, so maybe he tripped over the line in that one, but I still like him better than Joe Biden. And then you have the second one.

So the second one is heartland kind of Ben Wittes national security territory. Mar-a-Lago docs. The Mar-a-Lago docs case. This is like core national security law. There isn't a major one of these cases that I have not been at least tangentially covering in the last 20 years. This case is nothing like any of them, but I totally understand how somebody who isn't steeped in illegal document retention, Espionage Act stuff, could say, okay, well, Joe Biden had some documents, Mike Pence had some documents, Donald Trump had some documents. They all do it, right? It's kind of, and by the way, John Deutch, and there was the whole thing with David Petraeus gave code word classified documents to his mistress, right? And so, you know, I can understand how somebody who does not, has not really read this document next to 20 other cases of people mishandling classified material could not understand that it's not just different

in degree, but different in kind. But then you get to these third and fourth indictments where we've never had a president be accused of trying to overturn the results of an election by illegal means before. And these are two separate prosecutorial offices who are both making that same core allegation through different legal means, very different indictments in many ways. But the core of it is the most profound affront you can imagine to not just this democratic system, but any democratic system. And I just don't believe at the end of the day that the American populace as a whole cares so little about democracy that it is willing to look at these four indictments together and shrug with an LOL, nothing matters. I'm appalled and shocked

that 40% of the country actually considers it a virtue or something. That alone is a deep threat to our political way of life over time. But in the immediate sense of the 2024 election, I just don't believe that we are in the land of people not caring, at least with enough swing voters to the extent that there's such a thing anymore, that Donald Trump doesn't get to a point of non-viability. That is an article of Democratic faith for me. You know, my faith may be as misguided as many faiths are, but I just don't really know how I would go on if I didn't. The other question is whether any of this gets better. I mean, there's two questions. You know, obviously, look, the megabase is not going

to move. So let's just set them aside. Then you have the soft Republicans, the maybe Trumpers, the suburbanites who, you know, rented themselves out to the Democrats, those swing voters in places like Georgia and Arizona and Pennsylvania and Michigan and Wisconsin, trying to imagine how these cases bring any of them home. The only scenario that I can see, you know, that would be pro-Trump in terms of his prospects would be that it would, you know, galvanize an even bigger turnout in rural areas. But I'm skeptical about that as well, because I'm not sure that there's much that will happen between now and November of 2024 that will make Donald Trump look better. I mean, he could, of course, be acquitted. I mean, there could be this dramatic moment where the cases fall apart, but it seems very, very unlikely to me. And also the nature of the cases. One of my concerns was originally that we would go small or go petty. That was one of my concerns about the Alvin Bragg charges that people would think, okay, that's it. You're going after him for this, you know,

four-year-old case of paying off a porn star. it. You're going after him for this four-year-old case of paying off a porn star. Are they going to go after him for some technical violation? But you look at the charges and they're big. Conspiracy, fraud, obstruction, racketeering. So let's talk about this Fulton County indictment. You guys at Lawfare have been all over this. This is a document of extraordinary ambitions. And you said, we don't know yet whether it's touched by prosecutorial genius or a massive overreach. Well, which is it?

What do you think? So that was an article with a giant multi-person byline, but I did write those lines. And I actually agree with myself about that. That's always a good thing. I have questions about the institutional capacity of Fannie Willis's office to handle a case of this magnitude. They've never done anything like this. It's not like, you know, the United States Department of Justice taking on a mega case. There's never been a mega case in the history of the Fulton County DA's office. And so, you know, when you see a case of this kind of just extraordinary ambition, it is a nationwide case.

It involves conduct all over the place, including in the halls of power in Washington, including in, you know, seven states around the country and the District of Columbia. I mean, it's a crazily broad document for a local DA. And I'm not ragging on Fannie Willis here, any local DA. That said, I do think that the idea of thinking about Donald Trump in the language of racketeering has a lot to be said for it. There's a reason why when you and A.V. Stoddard did your podcast yesterday or a few days ago, sorry, time all blurs together. It was yesterday. It was yesterday? Yeah. No, I'm sorry, it was two days ago. I'm sorry. I don't even have the time zone. Yeah, I mean, it's also just who slept in the last 72 hours. But, you know, there's a reason why it made sense to play the Godfather

music. It was funny, but it was funny because it made sense, right? And that aspect of the indictment is speaking to something that's very deep in the way we understand what Donald Trump did and the kind of organization that he ran. brought his case that alleged a conspiracy against rights, a lot of people scratched their head and said, wait a minute, that's a novel legal theory. And the people who actually know how that law has been applied said the opposite. That's well-trodden territory. And that's exactly what he did. He conspired against the right to vote and have your vote counted. And so I have mixed feelings about this. Part of me is worried that that office and that court system just may not have the institutional capacity to litigate this case in an effective way. And there is a case called the YSL case that's been hanging around Fulton County for, it's been in jury selection for months and months and months. It's not clear to me that that office is really in a

position to litigate this effectively. That said, I also respect it. I think, you know, she is a person who decided that it was important for her office to put down an indictment that told the truth in a kind of holistic way. her, to someone stole those computers in Coffey County, to the president of the United States organized fake electors in seven states, right? From the very grand to the really local and really tawdry. And I have to say, I respect that. I have a foot in both worlds about it. And I guess what I think is, if she pulls it off, it is the indictment that is most touched by a prosecutorial genius. If she can't pull it off, it's a wild overreach. And, you know, it would have been better if she hadn't brought it. I like the way you put it that she shows she has a monster of a hand, but now she has

to play it. I want to drill down into some of these other issues, the issues that are coming up, what happens next. But let's talk with one of your colleagues first, Anna Bauer, correspondent for Lawfare, who was in the courthouse in Fulton County on Monday. Well, Fannie Willis was presenting evidence as witnesses arrived to testify when the grand jury voted on the indictment. And she was there the moment the indictments were handed up to the presiding judge. So that was an incredible day, wasn't it, Anna? It was an incredible day. It was also an exhausting day. I think it was 1130 when they ultimately had the press conference to announce the indictment. So why was it so late? Give me the take on that, because that seemed a little bit unusual. They had that false start when they posted it early in the day. Did they feel the need to get it out that day?

But why would you do it at 1130 at night? So I think that it has something to do with the false start. So just for listeners who maybe missed that, Fonny Willis was widely expected on Monday to start presenting evidence to the grand jury that was sitting that day. And she started to present evidence and was calling in witnesses. Sometime around midday, the docket started to show charges against Trump. And it was only up very briefly, but a Reuters reporter caught a screenshot of it and sent it out to the world. And all the reporters in the courthouse, everyone was freaking out. People were texting me like, what is going on? What's happening? The district attorney's office denied that Trump had been indicted. And the clerk sent

out this email saying that it was a fictitious document. So it was after that, that more witnesses who were scheduled to be on Tuesday started coming in on Monday instead. And I think what happened is they got nervous that, you know, this had been reported on and that maybe there'd be some argument down the road from Trump's team if they sent the grand jurors home and they were exposed to, you know, a lot of reporting about this document that had been released and that kind of thing. So they kind of just wanted to go ahead and, you know, squash that conversation outright by just keeping the focus and momentum on getting the indictment done. So they brought in the witnesses and it just so happened that it took them, you know, until 8.30 to actually deliver the indictment because they continued on. And then after that,

they had to upload this long document and get it filed into the system. So that's what was up with the 11.30 p.m. press conference, but it was quite a day. One other detail you mentioned, you were talking about the grand jury members who are now are have been sent home. A far right pro-Trump website has published the names and the addresses of these grand jurors at this point. Are these names public in Georgia? Is there any sort of a protective order in place? What's going to happen now? Yeah, I think that's something that folks are very concerned about, and we were concerned about it before the indictment was published because we had an idea that these names would be on the indictment. The reason why those names are on there is because

it's required by state law in Georgia's code. You know, it says that the indictment has to have the names and there's been case law saying that the indictment would be defective if it did not include the names of the jurors on it. So Fannie Willis's office was aware in advance that these grand jurors, you know, they would have to keep the names on there and there's no mechanism for redacting them. And if they did redact those names on the public document, there was a chance that, you know, the indictment could be quashed on that ground. So unfortunately, you know, they had to put those names on there and this is the result. I am sure that there are investigators who are looking into this. I don't know what the security situation is

in terms of taking any steps to protect the grand jurors who have been now doxxed, but it is really concerning. So you're going to be there, I assume, for the surrender and the arraignment? Yes, I will. I mean, I don't know how I will survive all 19 of them if they're all in one week, because as you know, people have been lining up overnight to see these arraignments, but I will certainly be- They're not going to all show up on a bus together, right? I mean, they don't have to be arraigned together. Jenna Ellis might not want to be in the same back seat with, I don't know, Jeffrey Clark. Oh, yeah. I don't know. I mean, she said in her recent order or motion that they

wanted to do all the arraignments the week of September 5th. But as people know from the press conference, it's a two-step process in Georgia. You first do the surrender to the sheriff's office, and that's where the booking and the fingerprinting will occur. And we know from the sheriff's comments, mugshots. Yes. The sheriff has said that he intends to treat all of these folks as any other defendant. And the word on the street here is that Trump may show up the day of the Republican debate on the 23rd. That's just speculation, right? No, these are just rumblings that are kind of, you know, around the courthouse and around Atlanta that people are talking about. That's

totally speculation. But, you know, keep your eyes peeled for that because it may be, it seems very Trumpian, right, to try to take attention away from the Republican debate by showing up for his surrender. Yeah, I think there's a lot of too clever by half thinking going on there now. So going back to this, the sheriff has said that he will, they will take a mugshot. Is there any reason to believe that he won't do that? No, no reason to believe. And I mean, because he's made this public statement, I feel that he's kind of... So it's going to happen.

Yeah, I think it's going to happen. And important to say that, you know, in the federal system, when there's a mugshot, it's not released to the public. But in the state system, it will be released. So we should have mugshots of all of these folks once they're surrendered. All right. You also did some great reporting on what was going on in January 2021 in Coffey County, Georgia. This is an interesting sort of sidebar to the big event. And this is a small rural county where a group of election officials and Republican operatives, what did they do? They went in and got access to the

most sensitive voting software and equipment in the state. I mean, they scanned it, they copied it. And you wrote, it's a story of how in the name of preventing election fraud, this group appropriated county election systems and in the process made voting machines there and elsewhere less secure against future attack and came to be charged with conspiring to commit election fraud themselves. So just take me inside the thinking. Why Coffey County? This is a county that Donald Trump won big. Why did this happen there? What were they looking for? What did they get?

Charlie, it's a complicated story. And so I don't want to get too in the weeds with it because, I mean, I could talk about it all day. But Coffey County, you know, it's a county that Trump won by a landslide. It's a very deep red county in southern Georgia. And these election officials and GOP operatives were very friendly towards Trump. They seemed to have believed that there was something wrong with the Dominion system. Although they insisted that their system and their outcome in the results was fine, they still kind of insisted that their system and their outcome, you know, in the results was fine, they still kind of insisted that there was something wrong. And so when they tried to do a machine recount, there

was this 51 vote discrepancy with their election night recount, which of course would not be enough to change the outcome of the election and really did not matter in coffee County, especially because, you know, Trump won by a landslide, but somehow this just snowballed into, you know, proof that there was something wrong with the machines because coffee County could not replicate its election night results. The secretary of state's office later found that that was a result of human error. It did not have anything to do with the machines. But they went on this, you know, quest to bring this to the attention of the Trump campaign. And all of a sudden, you see, in the late November, December period in 2020, all of a sudden, Coffey County starts showing up in all of these campaign documents. And then some of these folks who would eventually go in and have unauthorized access to the election

systems. So who is pushing this? Was this Rudy Giuliani? Was this his plan to get the voting machines? I mean, is this Jenna Ellis? Was this Sidney Powell? Who's going to get their hands on this? What were they going to do with it? It's a little bit unclear right now who was truly the kind of mastermind, or if there even was a mastermind behind all of this. But I will say that if people will think back to that 2020 post-election period, there were plans to access machines because Trump's team thought that they could get evidence of the alleged fraud, which was obviously not true. But they thought if they could get access to these machines, they could show that there was fraud. So Sidney Powell had a plan to use an executive order to have the Department of Homeland Security seize voting machines. And then we know from reporting and deposition testimony before the

January 6th committee that Giuliani wanted to get voluntary access to machines. There were a lot of people in that inner circle who wanted to get access to these machines. And we know they had at least some contact with some of these folks in Coffey County. And Sidney Powell actually paid for the work of copying the voting machines. Yeah. So it's a tangled tale. But if you read the piece that we wrote in our reporting on it, it shows that there's a lot of connections there that I think people don't realize. And that's why it shows up in the Fulton County indictment. Well, I mean, one of the questions that people have had is, you know, well, so what? What is the there there? So they came and they looked at the stuff, they didn't find anything. But I think

you make the point that these events could have a long tail by making voting systems and voter data available. they have potentially made these systems less secure. How does that work? I mean, you're basically saying that the allegation is that by doing what they have done, they've actually made voting fraud more possible than it was before. So what they did when they went in is they had a forensics team who copied our elections system software as an exact replica, right? And usually that software is held under lock and key for a reason, because you don't want bad actors to be able to go in and examine that software, check it for vulnerabilities, figure out the best ways that it could be manipulated, right? So here, what's happened is

they took an exact replica of that software and put it on a share file site that was then distributed or accessed by multiple people in several states, according to, you know, court filings and access logs that we've reviewed. And the question is, how many people was this distributed to? Who got their hands on it? And what will be the future vulnerabilities or threats? Because potentially bad actors are now able to examine this stuff. And the Secretary of State's office in Georgia has said that they do not intend to do an update to the software before the 2024 election. So that same software that was accessed and distributed is the same software that will be used in Georgia in the 2024 election as well. So it's concerning also just from a disinformation perspective, because as we saw in instances like Antrim County,

Michigan, when voting systems were accessed, there are ways that by looking at this stuff, people can misrepresent what's going on with our systems, make these reports that include disinformation, but seem to have some kind of legitimacy if you don't really know what you're talking about, right? So there's multiple ways that this kind of thing is dangerous, and there are reasons why we keep our voting software under lock and key. One last question. Speculatively, the prosecutor wants to have this trial begin in March, March 4th. On a scale of 1 to 100, what are the chances that that will actually take place in March of 2024? What do you think? I think this is not going to be the answer that people want to hear, but I would say it's about zero. Yeah, I was going to go for that. Look, in Fulton County, RICO cases take a very long time

to go to trial. Usually you're looking at between one to three years to go to trial for a RICO case. This is a massive case. It is shocking that the district attorney has even suggested that the case could go to trial by March because it's not going to happen. All right, Anna, we will talk to you again after the multiple perp walks, after more than a dozen perp walks and get your take. Thanks for joining us today. I appreciate it. Okay. Thank you. All right, we are back with Ben Wittes. So, Ben, there are so many questions now around this case and around Jack Smith's case, and I want to ask you about the whole Twitter thing in a moment, but

one issue that we're going to have to confront, I think, in the short term is the question about whether or not this stays in Georgia state courts or whether it goes to the federal court. Mark Meadows, one of the co-defendants, has already moved to have the case transferred because, of course, he says he was acting as a federal official. From a practical point of view, at least from my point of view, one of the big differences between state court and federal court is the state court trial would be televised, the federal court trial would not be televised. But give me your sense about these arguments, because at least in Mark Meadows' case, I have to admit, it doesn't sound frivolous to me that he's doing this.

I don't think it's frivolous in any of the cases. I think those people who were federal officials are probably entitled to removal to federal court. That is not a punishment to Fannie Willis. It's a very old principle in federal law that you don't want states to be able to harass federal officials by indicting them or by trying to regulate the way the federal government does its business by dragging federal officials into court. And so while we can't tell states what to criminalize and whatnot, we can at least say, okay, if you're a federal official, you're indicted by a state official for matters related to your federal responsibility, you get to have that trial done in federal court. So I think that it is likely that Donald Trump, Jeffrey Clark, Mark Meadows, and maybe a couple others will be removed to

federal court. I don't think that's a bad thing, actually. And it does have some negative consequences for publicity and for televising proceedings. But I think it is likely to happen. And I'm not sure it's the worst thing in the world, especially because of some of the institutional capacities in the Fulton County court system. Fonny Willis will still be litigating it. This is a technical question. So it goes to federal court. It will still be Fonny Willis and her team that will be prosecuting, and they will still be prosecuting it under state law. Is that correct?

Correct. Okay. So it's a federal court, but they will be adjudicating a case predicated on state law. Under Georgia state law. And if Donald Trump is convicted, he is convicted under Georgia law, not under federal. It doesn't turn it into a federal case. It merely changes the trial venue. It's a weird quirk, but it's very old. So let's talk about RICO for a moment. I mean, there is the sort of Greek tragedy element that Rudy Giuliani, who had built his reputation using the racketeering law against the mob in New York, now finds himself facing it. But it also is a very powerful weapon by prosecutors, especially in a state where there is a five-year mandatory minimum sentence and no prospect of a

presidential pardon. So how likely is it that some of these other 18 co-defendants will sort of have a come-to-Jesus moment and realize that they need to cooperate with prosecutors. Is that part of the strategy, do you think, to charge that many people at the same time? I think it is. So first of all, you've alluded to something important, which is that the Georgia state RICO law and the federal RICO law are not the same law, right? They have a name in common, but the Georgia law is much broader. And there's a reason why Fannie Willis has said publicly that she likes it as an instrument, which is that it's extremely powerful. And it's kind of like a very souped up conspiracy statute. She has used it to prosecute teachers in the Atlanta

public school system. She has a bunch of other RICO cases pending. And one of the things that it does, as you've alluded to, is it gives her, and this gets into my left-wing distaste for tough-on-crime stuff. I don't like mandatory minimums. But in a case like this, leaving aside my preferences, this is a heck of a hammer that she's got because some of the people that she's indicted are fairly low-grade participants in this conspiracy. You know, the election official who let people into the coffee county election official to steal equipment, right? Some GOP state officials, right? And you say, would these people in a federal court indictment likely get five years, much less a minimum of five years? And the answer is no. They're looking at this and saying, or at least

their lawyers are saying to them, you got to think real hard about whether you're going to trial about this, because if you go to trial and you lose, you are going to prison for a minimum of five years. And five years is a long time, not in the violent crime world, but in the white color crime world for a relatively low grade offender who can plead out. And so I think, yeah, over the next few weeks and months, you are going to see a bunch of people plead out of this case. There are 18 co-defendants in addition to Donald Trump, and a lot of them have been given a heck of an incentive to reach an understanding with Fannie Wallace. So one of the really interesting things about this is the way that it makes it clear,

you know, the role of the fake electors and going right after the fake electors scheme, which obviously did not take place in Georgia. And to your earlier point about the deterrent effect of the January 6th prosecutions, I mean, this prosecution and maybe others that will follow certainly also send a message around the country to election officials and activists. Be careful what you do, because there might be a very serious legal reckoning, because I don't think it's beyond the realm of possibility. We will face the same kinds of stress tests in 2024. So there's already talk of prosecution of the fake electors in places like Arizona. I don't know why in Wisconsin they

wouldn't do the same thing or in some other states. I don't know whether you've had a chance to see that MSNBC got a hold of a videotape of, of all people, Roger Stone immediately after the election laying out the plot for fake electors. I mean, he's caught on videotape. I mean, what a surprise that the original dirty trickster sleazoid Roger Stone would have his fingerprints all over this. This is another element of this that I thought was really interesting, that it raises the question, how are forged fake elector documents any different than other kinds of electoral fraud that Republicans actually claim to be indignant and upset about? They're not. And, you know, I noticed in your conversation with Anna, you focused on this part of her article in which she noted the irony of people who were

complaining and fretting about election fraud being indicted for, among other things, conspiracy to commit election fraud. You know, everybody talks about the downside of litigating these cases and indicting these cases in an election cycle. But I think there's deterrent value to litigating these cases in an election cycle. Absolutely. And I don't mean you're indicting it to, you know, force Donald Trump out of the election. I'm not talking about that. But I am saying, you can't do this as Donald Trump or anybody else without a lot of people who are willing to ride shotgun with you. And for them to see that the people who rode shotgun are all going to go to prison,

you know, that Rudy Giuliani is in a world of hurt right now. There are six unindicted co-conspirators at the federal level who are not unindicted anymore at the Georgia level. They're going to face indictment at the federal level. And, you know, one of the messages that this thing sends is in your constellation of fears as a Republican Party operative or lawyer, you have feared Donald Trump too much and you have feared the law too little. And these cases change that calculation for people. Just as when you call a federal judge and leave threatening voicemail messages, or call the Brookings Institution and leave threatening voicemail messages full of hatred, you are fearing something too much and the law too little, right? And deterrence in the criminal justice system is about changing people's sense of fear

and greed and what threatens them and what doesn't. And for somebody to be reminded in the middle of an election cycle or at the beginning of an election cycle, there are things that Donald Trump might ask you to do or that the Republican Party establishment in your county might expect you to do in the name of preventing voter fraud. And let's be honest, what we mean by voter fraud is what we're afraid black people are going to do in Fulton County. And so I want you to commit some voter fraud to prevent that. And you should be really, really afraid of complying with that request, not just because it's racist and horrible, but because you're going to get indicted. And one of the shocking things about 2020 was how unafraid people were of the law. And one of the values of having these prosecutions going on right now is that people in election campaigns are reminded that there's got to be a limit to what you're willing to do. And it is possible to,

you know, fear Donald Trump or fear your community too much and fear, you know, whether you want to think of it as Jack Smith or Fannie Willis or Merrick Garland or Tanya Chutkin, too little. You've got to change people's sense of that calculation. I think this is an incredibly important point. Okay, one final question, not on the Georgia indictment, but this is a development in the January 6th case. We found out in the last couple of days that Jack Smith has gotten access to direct messages or DMs that Trump sent privately through his Twitter account. Actually, they got all kinds of stuff, deleted tweets, draft tweets. New York Times reported it's unclear what information he was messaging, but it's kind of a hit as a revelation that Trump

had used that because he's famously been cautious about using written forms of communication in his dealings with aides and allies. But again, this access to the data, which includes these draft tweets, these deleted tweets, came after this apparently just really knocked down fight with Twitter's attorneys in January and February. And, you know, before the prosecutors got everything, the federal judge overseeing the matter, this would be Judge Beryl Howell, wondered in this blistering analysis whether Elon Musk, who went all out to protect Donald Trump, whether Musk was actually just trying to, these were her words, trying to cozy up to Trump by resisting the special counsel's demands, these extraordinary steps to make Donald Trump feel

like he's a particularly welcome new, renewed user of Twitter, Judge Howell asked. So give me your take on why Jack Smith wants this Twitter data and what could be in there. You know, anytime you're dealing with personal communications of a target or defendant of an investigation, you want all their comms, right? So that Jack Smith would want them is completely unsurprising. I don't want to speculate about what they are because I don't have any more idea than anybody else. The shocking thing about this story is, first of all, that Donald Trump was dumb enough to use Twitter DMs as opposed to any of a million more secure ways of communicating. Just note to listeners, don't commit your crimes on Twitter DM, use Signal. And secondly, about a month before this battle happened, Elon Musk fired as his deputy general counsel, my friend Jim Baker,

who used to be the general counsel of the FBI under Jim Comey. And Jim Baker is a truly superb lawyer who, among other things, was responsible for the Twitter litigation strategy that forced Elon Musk to pay $44 million for a company early December, and this issue arose in January and February. I can promise you that this would not have happened had he not fired all of his good lawyers. And big companies do not get into knockdown, drag out fights with federal judges and get sanctioned in order to protect criminal former presidents under normal circumstances, right? And so this is a creature of Donald Trump, but it's also a creature of Elon Musk's acquisition of Twitter and his purge of people who were there to keep the company out of trouble. And so within a month of firing Jim Baker, he is in a battle with Beryl Howell, a very fine judge on the district bench here in Washington, he says from Estonia, that, you know, was completely avoidable and is

just a reflection of the general mayhem that Musk and the politically inflected general mayhem that Musk was causing at the time at Twitter. By the way, very satisfying for me to see him get into trouble like this for this because he, of course, I have been banned from Twitter. It's personal. It's a personal thing at this point. Wouldn't it be ironic if the one thing that really tied Donald Trump most directly to the conspiracy to overthrow the government was Jack Smith finding his thumbprints on his Twitter account? Literally the thumbprints. If he was undone by his thumbs.

Remember also, I mean, you're sort of joking, but not entirely. No, I'm not. Remember that Donald Trump Jr. had, I believe, Twitter DM exchanges with Julian Assange, you know, that who are way too engaged on Twitter tend to use Twitter DMs for things that you should be using more secure means of communication for that don't leave records that are unencrypted. And so, you know, it got Donald Trump Jr. in some trouble with, and Roger Stone, I believe, had Twitter DMs with Guccifer, too. I may be misremembering that. You know, you live by Twitter, you die by Twitter. Wouldn't that be the great epitaph for the Trump presidency? The one thing, and in the end, what brought down Donald Trump? His thumbs on Twitter. I just think we need to leave it there, this latest episode of Trump Trials,

live from Narva, Estonia, with our good friend Ben Wittes. Ben, have a great trip. We want to hear all about it when you get home. Yeah, we'll debrief. It was great to talk to you, and we'll do it again next week. I'm going to need a really deep, deep debrief when you come back from this particular adventure, including your various special military operations. And thank you all for listening to the latest episode of Trump Trials with our partners from Lawfare. I'm Charlie Sykes. We will be back tomorrow and we will do this all over again. The Bullwhip Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.