The Bulwark Podcast - Too Crazy for Rudy

Episode Date: November 16, 2023

One person we can be certain will not be called as a witness in Georgia: nutty Sidney Powell. Plus, the unsettled Trump trial calendar, one way we may get to 'hear' Chutkan's trial, and the missing funding for Ukraine. Ben Wittes joins Charlie Sykes for The Trump Trials.

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having to wage in various courts around the country, the rule of law trying to hold him accountable. A lot to talk about this week. Joined once again by our good friend Ben Wittes from Lawfare. Morning, Ben. Hey, good morning. Shall we start with the so-called proffer tapes? I want to talk about cameras in the courtroom and argue about that and all this stuff and the gag orders, but could we just start with Jenna Ellis and Sidney Powell? Let's start with the proffer tapes. Okay. In case you haven't been paying any attention, which I assume most of our listeners have been paying attention, ABC News obtained portions of these proffer sessions with Jenna Ellis and Sidney Powell. Now, correct me if I'm wrong anytime here, okay, Ben, but proffer sessions are basically interviews with the prosecutors.

They're typically part of a plea deal. You get to come in, say what you would testify to. You can't be held accountable for it, right? Then they decide whether or not they're going to make a deal with you or not. So in these sessions, the defendants disclose what they want to share with the government. And in the portion with Jenna Ellis, she explains that Trump White House official Dan Scavino, who is his social media guru, told her in late December 2020, the boss would not leave the White House. But listen to the way she describes it. The conversation was around December 19th of 2020 at the White House Christmas party. And I emphasized to him, I thought that the claims and the ability to challenge the election results was essentially over because he said to me in a kind of excited tone, well,

we don't care and we're not going to leave. And I said, what do you mean? And he said to me in a kind of excited tone, well, we don't care and we're not going to leave. And I said, what do you mean? And he said, well, the boss, meaning President Trump and everyone understood the boss. That's what we all called him. He said the boss is not going to leave under any circumstances. We are just going to stay in power. And I said to him, well, it doesn't quite work that way, you realize. And he said, we don't care. Okay. Just a little footnote here. Jenna Ellis, you know, implies that she was like the voice of reason saying it doesn't work that way. A couple of days later, though, she tweeted that President Trump should never concede the election. But Ben, what do you make of that little bit of hearsay evidence? First of all, you know, Jenna Ellis, like all of these characters, is somebody who is at this point turning on or trying to turn on Trump and his cadre.

She's a bit late in that. There's obviously questions about her sincerity. And so you've got to keep all that in mind as you imagine what she would be like as a witness. Look, that said, there are some things in there that are pretty damaging to Trump. And admittedly, this is not Trump himself saying this, but it is somebody close to him describing exactly what he ended up trying to do with two weeks to go. And it's not surprising, it's not hard to believe how usable it is, both for admissibility reasons, and they apparently have him saying similar things in his own voice. So why you would need it through Scavino, through Ellis is not entirely clear to me. But look, with all of these proffer videos, I think you should keep two things in mind. The first is that it was in somebody's interest to dump them in public. It's not necessarily inappropriate for that to happen. They're not subject to a protective order. They were given to all the

defendants, I believe, in discovery. And so any defendant who has a reason to want to give it out, it's perfectly appropriate for their defense lawyers to hand them out. But somebody's doing it for a strategic reason. And maybe that strategic reason is because they think it makes Trump look bad. Or maybe the strategic reason is that, honestly, they think that Sidney Powell comes off as deranged, and it doesn't really do Trump that much harm. So just ask yourself when you watch these. Who benefits? Who benefits and why somebody wants this out right now?

Fannie Willis clearly did not. She was filed a motion to seal some of this, to block this from happening. She seemed very unhappy, which is not that surprising because prosecutors do not want their evidence aired before trial. Correct. So, I mean, so again, I think it's very, very clear. This came from one of the defense teams. What we don't know is who, and we don't know why necessarily. Right. And there's a lot of possibilities, right? You know, presumably it is not, well, one would hope it is not one of the lawyers for the four defendants who pled out. And the reason I say that is that they are subject to, as part of their agreements, they're not supposed to make press comments. They're not. And so there should be some

restraint on the part of Jennifer Ellis's lawyers, on the part of Sidney Powell's lawyers. But any of the others, and there's, you know, 15 others, it is perfectly appropriate for them to do this. Appropriate? Is that the word? Well, it's not inappropriate. Okay. Let's talk about the substance of this. Because, I mean, I have a couple of things to say about the story that Jenna Ellis is telling about Dan Scavino at the Christmas party saying the boss has no intention of leaving the White House. Number one, I mean, it is hearsay evidence. So I think it's questionable

whether that will ever show up in a court of law. Number two. Although what's not hearsay evidence is if you then call Dan Scavino and say, you know, Jennifer Ellis said this, first of all, is it true, right? And they can, it's a lead. You could get that in a way that is not necessarily hearsay. He's not likely to confirm. Okay. So, I mean, Dan Scavino is kind of a notorious idiot. He may be, you know, the Trump social media, Twitter whisperer, but he's a guy who, you know, like so many people in MAGA world, promoted way past their own abilities, a guy who was a caddy who became a White House official. It's at a Christmas party, which raises the possibility of, shall we say, that Mr. Scovino, whose sagacity is never great

under normal circumstances, might have been over-served, so we don't know. On the other hand, what I think is interesting is the glimpse this gives us into what was going on in the White House. Bill Barr described Donald Trump as being detached from reality. And I think the more we learn about this, we realize how detached from reality Donald Trump and his inner circle were. The fact that we have this report now from Jonathan Karl in his new book, tapes that would suggest that even after he left the White House, that Donald Trump was weirdly and bizarrely fascinated with the possibility that he might actually be reinstated as president, which is absolutely insane. on in this guy's mind, as we realize that at the time, I think some of us, some folks were more alarmed than others of what was going on, the emanations coming out of the White House. As we're learning, perhaps we should have been even more alarmed. I mean, remember when that letter came

out from the Pentagon saying the military will have no role in the transfer of power. That was pretty alarming. And now we peel back the curtain and we realize that this was alarming and it all keeps coming back to Donald Trump, the mind of Donald Trump and the way in which one lawyer after another, one staffer after another tells him he lost the election. But what does he do? He listens to people like Sidney Powell. He surrounds himself with people like Dan Scavino and even Jenna Ellis. So I don't know how the prosecutors use this, how they connect the dots, but all of the insanity and the detachment from reality comes back to Donald Trump. And we are just getting one example after another of that. Yeah, and remember that we get a

glimpse of this through Dan Scavino, through Jenna Ellis, but we also have much more direct views of it. So, for example, Mark Meadows, who will not testify in this trial where he's a defendant, could very well be made to testify or be asked to testify at the federal level. In fact, we know he's spent a lot of time in front of that grand jury. And so, you know, whether there are Fifth Amendment bars given that he is under indictment in Georgia gets complicated. But the prosecutors at the federal level have a lot of direct insight. Remember, they have Cassidy Hutchinson, they have the lawyers, they have all of these different actors who are in a position to testify to some of the things that Dan Scavino allegedly knew in this account. And remember also that Jenna Ellis's full story may be richer than the snippets that ABC reported

on. Right. So let's play one other clip from Sidney Powell. I mean, she describes, and there's a lot here. She talks about how she had plans to seize voting machines around the country, that she frequently spoke to Donald Trump, that she believed Trump won the election but conceded she didn't know any election law, that she'd never practiced any election law. In this clip, though, you get a sense of how absolutely insane this was, what a shit show within a clown car this was when she describes this one meeting where apparently she was so crazy that that even rudy giuliani had to draw the line this is this is sydney powell talking about what rudy giuliani thought about her there was a big shouting match in which rudy called me every name in the book. And I was the worst lawyer he'd ever seen in his life. There were no circumstances under which he'd work with me on anything. He called me a bitch and I don't know what all.

And that's pretty much all I remember about that one. She remembers that, though. So, too crazy for Rudy. There you go. This is the scorpion in the bag phase of all of this, where they all hated each other, were ripping each other and screaming at each other and threatening one another. I can promise you very few things in life, Charlie, but I can promise you that Sidney Powell will not be called as a prosecution witness. And so, in that sense, her proffer is not deeply important. They won't call her because, in fact, she is pretty nutty. And she's not an especially credible witness either and would be great fun for defense lawyers to take apart with impeachment like, you know,

were you too crazy for Rudy Giuliani, ma'am, right? What did Rudy Giuliani think about you? Right, exactly. So I think, you know, you could see Jenna Ellis called. You could see Scott Hall and Ken Chesbrough called for discrete pieces of information, I think it's very unlikely that you're going to see Sidney Powell called. I would think that one of the most important developments in that racketeering case, though, is that Fannie Willis is now telling the Washington Post that she anticipated that the Georgia racketeering trial would conclude

in early 2025 and foresaw proceedings still being underway during the final stretch of the 2024 campaign. She says the calendar, the election calendar, plays no role in her decisions about the case. The judge in the case has not scheduled the case. He may be forced to take account of the timing of the other criminal proceedings. But for anyone that thought that the Georgia case was going to be wrapped up before the election, no, this seems like a rather significant development, especially with Eileen Cannon dragging her feet. So it really does, once again, underline something we've talked about many times in the past. It comes down to this sedition trial in Washington, D.C. That's the one that is maybe the only one that's likely to be concluded before the election.

So I think we got to all keep an open mind about this. I am willing to do so. Let's throw some variables into the equation. The first is Tanya Chutkan, the judge in Washington, seems very committed to her March 4th date. Yes. Or March 5th. I can't remember which. The only thing that I know of that can get in the way of that, if she's serious about it, is this presidential immunity argument that could require an appeal between now and then. And it is possible, though I don't think very likely, that that appellate process could slap a stay on the underlying proceedings. But I think you should assume that that trial is going forward on the 5th. Like, that should be our working assumption.

District judges are the most powerful people in cases, and if Tanya Chutkin wants the trial to go forward in early March, it is likely to go forward in early March. Now, right around the same time as that case is scheduled to go to trial, Judge Eileen Cannon says she will decide whether to move her May trial deadline in Mar-a-Lago. Everybody seems pretty confident that she's going to move it because of the way she's scheduled. She's Eileen Cannon and because she scheduled the pretrial motions in such a way that people who follow SIPA litigation very carefully are confident it's inconsistent with the May. that Judge McAfee, the Georgia superstar judge whom I am a big fan of, he cannot schedule a trial right now in a fashion that could interfere with either the March or the May dates, May in Florida, March in Washington. So he can't even schedule a trial now in a fashion that would be before midsummer.

However, come March, when she pushes that deadline back, he could then schedule something, say, in June. And so I would not be surprised if the result, ironically, of Eileen Cannon's machinations is that you have a March trial and then you have a calendar opened up for essentially the whole summer. And the result is kind of a worst of all worlds situation for Trump, which is that you have a conviction in March, April, early May timeframe, and then an ongoing trial in Georgia that is not concluded yet at the time of the election. And I think that would be a really, really bad outcome for Trump. Awkward. Very awkward. And I think that would be a really, really bad outcome for Trump.

Awkward. Yeah, very awkward. There are a lot of variables involved in the trial scheduling here, but I am not sure that the answer will not be a conviction in spring, a trial that drags out over the course of the remainder of the election cycle, and then the Mar-a-Lago case looming in the distance. The worst case scenario, of course, is the one that you hinted at, though, where you have an appeal that will result in a stay of Judge Shutkin's trial. Who decides that? So let's say they appeal the immunity argument, it goes up to the Court of Appeals or to the Supreme Court. Then will it be up to the appeals court? Who will decide? Yeah, here's how I think the question will present.

So first, Judge Chutkin has to rule on the immunity motion. She will deny the immunity motion. Then Trump will ask her to stay the proceedings while he appeals. I assume because she's shown a lot of commitment to that March trial deadline, she will deny that. He will then appeal it to the DC Circuit and ask the DC Circuit for a stay. My guess is they will issue a temporary administrative stay and then lift it. But that's just my guess. The Supreme Court, who knows? I should have clarified it. So the issue, the immunity issue is his argument that as the president of the United States,

he should be absolutely immune from any prosecution for anything that he did during his presidency. Would that apply to his post-presidency as well? No, it doesn't apply to his post-presidency as well? No, it doesn't apply to his post-presidency. So it's a killer argument if it's a winner, which I don't think it is. It's a killer argument with respect to the January 6th case. It does not affect the Mar-a-Lago case. All right. The other really interesting debate that broke out or intensified this week is the effort to have this DC trial televised. I mean, last week, Trump said that he wanted Judge Shutkin to agree to the request by news organizations to broadcast the proceedings, despite the fact that under federal rules,

these trials are never actually televised. You know, his argument, of course, I'm a victim, I'm not being treated fairly. And the only remedy is transparency. And prosecutors, however, are pushing back on this. They're telling Judge Chutkin that she said that he would treat him like any other defendant and that he's asking for special treatment to turn the trial into a media event. So where do you come down on all of this? I talked about this on my podcast with Mona Cherin the other day, and I was at least tentatively inclined to think that the blind squirrel had gotten the nut this time, that maybe we ought to be, the American people ought to be

able to see Donald Trump on trial. But what do you think? Well, first of all, let's leave aside for a second the question of what ought to be, and let us just read the text of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. So we can debate all day whether we think that's a good rule or not. It's an old rule. There really aren't exceptions to it in federal district court. And I think we you know, we can talk about all day about what we think the rule should be and whether we like cameras in the courtroom. You say it's just not going to happen. It is not going to happen.

Who can change the rule? Who can set the rule aside? Just, I mean, just in theory. Federal rules of criminal procedure are adopted, I believe, by the judicial conference and enacted in statute. They operate with the force of law. You can't waive them. The judge has no discretion in this. Correct. That is essentially what the Justice Department has advised her, and Trump is showboating. Now, I will say that there is a really interesting question, and I'm going to break some news here on your podcast, which I have raised with the court, and I've raised it in a letter to the court's public information office, which is,

if you put a speech-to-text engine in the courtroom or in the press room, would it violate the rule and the DC courts specific has a local rule, a local implementation of the rule? Would it violate local rules to produce by AI, by speech to text, a live transcript of the type that we get on C-SPAN all the time when we watch, you know, it's sort of basically a closed captioning. I believe it does not violate the rule as written. And I have asked for their clarification of their understanding of the rule, because I think what I would like to do is basically have a live blog of the text of what is being said. I think that has a plausible chance of being granted, because I think I'm right on the law, but I don't think there is any chance in this world or the next that the court either will or think it has the authority to or does have the

authority to say, okay, for this once you can set up a camera. Okay. Okay. I'm going to concede that point to you, but let's go back to your question about the AI generated text. I don't have a license to practice law or to deploy Latin legal terms, But is the term de novo here that you're asking the court to make a judgment that no one's ever ruled on before? This seems really new. I mean, well, so, you know, if you turn on Microsoft Word speech to text and you talk into your computer, it produces a fairly creditable transcript of this. We can do this with this podcast, by the way. Exactly. And if you click on the captioning on the YouTube version of this podcast,

it'll spit up a reasonably good transcript. Although it refers to me as Shirley occasionally, I just have to say. Shirley, you can't be serious. Shirley, yeah, that's what I keep thinking. So my question is, and here's I think here is the like, we would not be broadcasting the proceedings within the meaning of the rule. And we would not be recording the proceedings, which is also prohibited. Depends what the word broadcast and recording mean now, right?

We're now asking, it depends what comprises the term broadcasting. And particularly, I think what recording includes. So you're not allowed to record the proceedings, but I don't want to record the proceedings if recording means retaining a copy of it. But technically, the sound does go into the microphone of the computer and run through a speech-to-text engine. Is that a recording for the millionth of a second that it has it? And so my view is, I think the better reading of the rule is the way I read it, which is I would broadcast only text. And we already do that. We have Roger Parloff in the courtroom, in the media room, live tweeting, right? So this is basically a tech enhance of the live

tweeting. And the question is, does the court agree with my reading? I will, of course, live with whatever Judge Chutkin and the Public Information Office decide. But my view is that we could kind of split this baby. And what the press is asking for that is reasonable is the ability to convey exactly what is said to every witness, exactly what every witness says. The rule is really clear that you can't do that with a camera or a tape recorder, there's a kind of open question whether you can do it with text. And I want to force the court to answer that question. Well, and I think that, you know, we're in this brave new world where we have to decide, you know, does recording mean audio recording? Does it mean this? And although

I must say, Ben, I'm deeply troubled by your analogy to splitting the baby, because remember how that played out? We don't. Well, I agree. We don't split babies. The whole point of that story is that don't split the baby. But remember, the one who one side wins, the side that wins was the one who said, no, no, no, don't split the baby. And so I'm just saying to Judge Chutkin, no, no, no, no, no. Don't say nothing is allowed. Say text is allowed. So the other big issue, the gag order back again. Prosecutors this week made their case to a federal appeals court for the restoration of the Trump gag order in the

subversion case. We all remember a three-judge panel this month suspended the restrictions imposed by Judge Chutkan, and the New York Times reported that Jack Smith's team argued in a 67-page filing that Trump has repeatedly sought to malign Smith, a special prosecutor, and his family, and to target specific witnesses with attacks on their character and credibility. Prosecutors noted that his attacks were, quote, part of a pattern stretching back for years in which people publicly targeted by the defendant are, as a result of the targeting, subject to harassment, threats, and intimidation. Smith's office also pointed out how Trump had exploited suspensions of the gag order

to mount some of his most inflammatory attacks on prosecutors and witnesses, including he suggested that Mark Milley be executed as reference to Mark Meadows, potentially flipping. He suggested that anyone who made deals with the government was a weakling or a coward. Oral arguments on the matter are scheduled for Monday. So let's talk about this because Trump seems to be escalating his rhetoric. And as he has, you know, been buoyed by the polls, there's the prospect that he in fact could become the president again. He's made it clear that his presidency would be one of retribution and revenge. So on one level, he is making it very clear that if he thinks you are a vermin or scum or weakling, whatever, that he might come after you. Use the Department of Justice. That seems to

be a rather significant threat against potential witnesses. On the other hand, people who continue to be complicit or refuse to cooperate can perhaps hope, if not count on, the possibility of a Trump presidential pardon. So talk to me about this, how the courts are likely to see this gag order and how far they're willing to go. Yeah, so I think this panel of the D.C. Circuit seems to me very likely to uphold Judge Chutkin's ruling. And by the way, I think that's right. A judge has to have some inherent authority to manage conduct in her courtroom. And the fact that you happen to be running for president while you are under indictment cannot mean that you can issue essentially calls for violence against witnesses and court staff and prosecutors, family and staff. It just can't mean that.

Now, are there some issues with the specific text of her ruling? Maybe. But I think there is a very good chance that at least this panel of the DC Circuit sees it as this is a judge trying to control her courtroom, and there's a lot of sympathy among judges for that predicament. Now, once you take it up to the Supreme Court, you get into this whole other layer, which is that there are three of them who were appointed by Donald Trump. There is a hell of a lot of caution about dealing with this stuff. So one possibility is that the Supreme Court doesn't want to hear this at all, just wants to keep its hands clean of this. One possibility is that they're way less sympathetic to Judge Chutkan. You're they would actually have occasion to see each other. And the D.C. Circuit judges are directly affected by the security measures that are necessary to protect that courthouse from the consequences of Trump's behavior, which are, by the way,

not trivial, these measures. And I think that the resonance of what she's doing to the D.C. Circuit will be much higher than it is to the Supreme Court justices, although many of them, of course, come from the D.C. Circuit. I think she's very likely to be upheld at the D.C. Circuit level. I don't know how to think about it as a Supreme Court matter. So let's talk about the Supreme Court for a moment, how they might be regarding this. Let me just throw out a possible theory. I had a discussion with somebody who said, the last thing this court wants to do is become embroiled in the US versus Trump. They do not want a replay of what happened with Bush v. Gore. The last thing

they want to do is perceive you putting their thumb on the scale either way. Do you think that there is that? I mean, because there are people who look at the court and say, well, hey, this is a Trumpist court. This is the court that Donald Trump built. He's got a majority of conservatives. I'm more skeptical about that. I'm guessing that they will go to extraordinary lengths not to get involved. And I think we saw maybe, well, we keep going back through the aftermath of the 2020 election. They didn't want to have anything to do with any of those cases. So your thoughts? So the Supreme Court is a they, not an it for these purposes.

And I think you can divide up. Different justices will have different views on it. But I think it is fair to say the institution of the court will not want to get dragged into the election. And from their point of view, this trial is the election more than it has to. Well, it's going to have to because of Section 3 of the 14th Amendment, as we've discussed on prior episodes. That has nothing to do with Trump's criminal trials, but they all know, all nine of them know that they are going to have to hear a Section 3 case this year, coming year, or at least that there's an uncomfortable likelihood that they will. I think that will make them less eager to intervene in this case as well. Because imagine your conservative justice, that Section 3 case puts you in a very difficult position,

because if you're a textualist, boy, is the text clear about what it means, right? And so if you're going to try to give Trump a buy there, you're going to have to squirm textually to do it. And then you're also going to interfere in his criminal case. So I think there's a very good set of reasons to agree with you that the Supreme Court is not going to be looking to stick its hands in this. It's going to be looking to keep its hands out of it. That said, there are certain issues in this case that are present in this case that the Supreme Court justices have prior views on that are genuinely interesting and reasonably divisive among reasonable jurists. And some of them are questions that the Supreme Court might eventually feel it has to answer. And that's, by the way, true of some of the obstruction cases that are not Trump specifically, but that affect

his case. There's some real divisive issues at the DC Circuit around the meaning of certain obstruction statutes and what kind of conduct it does and doesn't. I think there is a good chance that you are exactly right and the Supreme Court will be like, nope, DC Circuit can handle this. We have discretionary review over everything. There's nothing we have to look at. And boy, do we not need to look at questions of presidential immunity right now. There's also a chance that it could be a little bit dicier than that. While we're on the court, your thoughts about the court sort of conceding that, yes, perhaps we ought to have a code of ethics.

You know, glass half full, glass half empty. How do you look at this? I would say glass a third full. I mean, it is a step forward that they have adopted a formal ethics code for the first time. Which is amazing that they've never done it. I mean, that is amazing to me, but go on. Right. It is also absurd that there is no enforcement mechanism for this. Well, that's the problem. I say absurd. It's actually hard to figure out what an enforcement mechanism would look like. So maybe it's not.

But if we're supposed to take the governance of that body by itself seriously, the fact that it doesn't imagine an answer to that question seems a little bit hard to get your hands around. That said, given that Justice Alito's public position is that nobody has any authority over us, so I think his technical position amounts to fuck you. It's not an easy thing for John Roberts, the Chief Justice. You can't just force this down people's throats. This is a group of people who you don't really have any authority over. And so you got to do something that people are going to consent to. I still think Congress should pass a statute and dare them to say that Congress can't.

Might as well try. Call the bluff. The other big Trump trial development this week is, of course, the New York fraud trial, the Trump organization putting on its defense this week. Of course, they've already lost the trial. Don Jr. returns to the stand and on Monday shared what he called the Horatio Alger style story of how his great grandfather, Frederick Trump, came to the United States. I just want to point out that Horatio Alger did not join the Ku Klux Klan. Yeah, there were a few distinct... Just saying. I have to admit, Ben, I've kind of tuned out on

that because we kind of know how it ends. I was surprised that Donald Trump himself testified and put on that performance, which he thought, clearly I'm thinking he thought was a success. Otherwise he wouldn't be asking for more televised testimony, but we are seeing the whole Trump family. So where are we at in that trial? So we are at the going through the motions phase, I think, because the judge has already said the company is liable, right? And we're at this point negotiating the price. And I don't know what the right price is. And I'm perfectly happy to defer to Judge N'Goran. And the mechanism by which Judge N'Goran is going to make this determination is by receiving evidence in the

civil trial. One part of that is the Trump people getting to put on their defense, which is what's happening now. But as you point out, there's a Kabuki-like quality to this because it's a defense that amounts to, given that we've already, but that's the legal question before the court. So I think it really is at this point the next significant event that's going to happen. There'll be some closing arguments, presumably, but the next significant event is that Judge N. Gorin is going to write an opinion and assign a number and a set of penalties. And I think we should expect the number to be high and the penalties to be substantial. You said they're going through the motions here. And I mean, obviously, all Trump trials are, you know, appeals to public opinion with an eye toward the electorate in his base. But in this particular case, because the stakes are so high for him and so tangible, he's obviously also preparing for appeal, right? You know, trying to create a record for appeal. But I do think this one is different from the criminal trials. So in the criminal trials, you have 12 finders of fact and a couple alternates. And, you know, if you convince one that there's a reasonable doubt, by the way, the jury never announces its verdict in advance of the trial. Whereas here, the judge has said,

you know, a lot of this we can resolve as a matter of summary judgment. You've already lost that stuff. And so he's removed a huge amount of the suspense that's built into a criminal trial. Does that make it more vulnerable to appeal, though? Not necessarily, no. Basically, you had the verdict before the trial. Right. You had the verdict before the trial, but not the verdict before a whole lot of evidence was collected. Remember, the summary judgment works as a way of taking stuff out of the trial realm because no reasonable trier of fact could find anything other than X, right? So if I sue you for, I don't know, for throwing a peach at me,

and we do all the discovery, and then you file a motion for summary judgment that says, look, look at this in the light most favorable to Wittes. There's no record that I purchased a peach. In fact, there's only a record that I purchased grapes. He doesn't allege that I threw grapes at him. And by the way, I have pictures of him after the alleged incident, and there's no peach on his face. Therefore, no reasonable trial or a fact could find that I throw a peach at him. Therefore, I should win. And based on that evidence, the judge says, Charlie wins. We resolve this as a summary matter. It doesn't need to go to a jury. So what Judge N'Goran did here is he issued a partial summary judgment order for the part of the case that the evidence clearly resolved. And that opinion is either right or it's wrong.

And that is subject to appeal and is being appealed. And then there is the matters that he let go to a jury, which in this case is not a jury, it's him, but he let go to trial. And a lot of civil cases are resolved on summary judgment, or in this case on partial summary judgment. And it's a perfectly valid way to resolve a case, assuming the evidence supports. It's exactly what happened to Fox News in that libel case. So let's talk about a non-legal issue very briefly. Congress appears to be avoiding a shutdown. They came up with legislation yesterday, mainly with Democratic votes to ladder the extension of government spending. But this is what I wanted

to ask you about. There's no money for Ukraine. There's no money for Israel. How alarmed should we be? If we wouldn't run the tape back a few months ago and we said, okay, we're going to have a CR passed at the end of the year and there will be nothing, no emergency aid for Israel, no emergency aid for Ukraine, I would think that'd be pretty bad. What do you think? Well, I think it's pretty bad. And I think it's worse on the Ukraine side than on the Israel side. Israel has a deep military. It's having some supply issues as a result of using up a lot of material very quickly. But the Israelis, in important ways, can take care of themselves. You know, the Ukrainians are actually running out of ammunition and it's a very serious problem.

And there are a lot of members of Congress, most importantly, the Speaker of the House, who should be very deeply ashamed of themselves that they have let it get this far. And I am worried about it. I think the longer we get dug in on these stupid, unimportant questions that people love to talk about in Congress, you know, which is the Ukrainian military woke, and, you know, these very, very stupid, unimportant questions. There's actually a 700-mile front in eastern Ukraine and northeastern Ukraine in which

people are dying every day. And the idea that we are subjecting that to our partisan games is really, really shameful. And I want to say, I think the administration has done everything it can. Senator McConnell has been very good about this. A whole lot of people are trying to do the right thing. And this needs to get over the finish line. And this is now the second time we are contemplating a CR to keep the government open that is essentially at the expense of the Ukrainian military. Other than saying it's bad, it's dangerous, and I hope we resolve it really soon. I'm not sure what else to say about it, but it's really, really upsetting.

Well, January is going to be do or die. I think it's going to be life or death for this. These things are going to have to be resolved. There is a real clock running on all of this. The ammunition is not replenishing itself. And will the Congress be more serious? Will it be more adult? Will America rise to its responsibilities in January when it has not done so in November? I don't know. I am worried about this. Well, it needs to do it between now and then as a supplemental, not as part of the CR. But it's not just Ukraine. It's also Taiwan and Israel, right? So the Taiwan supplemental was incorporated by the administration into the Ukraine supplemental and tied to the Israeli supplemental by way of saying, hey, you know,

sending a message to China, right? Right now, what Congress is sending is a kind of global message of, we don't care if you're attacked by Hamas, we don't care if the People's Liberation Army is threatening to invade, and we don't care if you're currently being invaded by the Russians, don't look to the US Congress to help if that means that we actually have to do our jobs in a timely fashion, because that is non-negotiable. And people need to make distinctions between members of Congress about this as well. In these days, we're all partisans in some sense, since one of the parties doesn't represent democracy anymore. But there are a bunch of Republican senators, starting with

the minority leader, who have been excellent. And it's really important to understand the difference between a Mitch McConnell and Mike Johnson here. This is something where a lot of normie Republicans in the House are fine. If you give them the chance to vote on something, they will vote the right way. Their leadership is not allowing a vote on Ukraine money in a fashion that is untethered to domestic political issues. And we just need to be really single-mindedly focused here on who the problem is and what the problem is. Well, I could not agree more with you. Ben, this has been fantastic. I really appreciate it. Normally, we will say that, hey, we're going to be back next week. We're going to do this all over again. But Ben, next week is Thanksgiving.

Right. We will not be back next week. And we will not do this all over again. We'll be back in two weeks and we'll do this all over again. Precisely. And enjoy the turkey, the ham, however you celebrate or whether or not you go to a Chinese restaurant on Thanksgiving. Just enjoy the holiday. You too. All right.

Thank you all for listening to today's Bulwark Podcast. I'm Charlie Sykes. We'll be back tomorrow and we will do this all over again. In fact, tomorrow's podcast will be our live event from Washington, D.C. You're going to want to check that out. Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.