The Bulwark Podcast - Trump Baits the Judge

Episode Date: August 10, 2023

The ex-POTUS's ugly threats and intimidation against Jack Smith, Fani Willis, and Judge Chutkan will only escalate. Plus, the fake electors are the real voter fraud, there's likely evidence of crimes inside Trump's Twitter account, and the risks of prosecution vs letting him walk. Ben Wittes joins Charlie Sykes for The Trump Trials. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Even as Donald Trump mounts a multi-front defense and tries to get a change of venue, the former president's legal troubles continue to mount. Last week, it was an indictment by the special counsel in Washington, D.C. He now faces 78 separate felony counts that could carry a maximum prison sentence of nearly 650 years. But it is about to get worse. Next week, Georgia prosecutors may add more than a dozen laying out the coup conspiracy because, and even potential jurors. Welcome to this week's edition of Trump Trials with our partner from Lawfare, Ben Wittes. Good morning, Ben.

Hey, Charlie. The zone is full. Can we just start just going back to late last week, where less than 24 hours after he is arraigned in front of a federal magistrate who tells him, yeah, don't try to intimidate witnesses or jurors. Donald Trump tweets out or bleats out in all caps, if you come after me, I'm coming after you. The special counsel put this in its motion for a protective order. They're not specifically asking for a gag on that. But give me your sense of how the judge is going to react to a criminal defendant who, if not in the technical sense, but certainly in any other colloquial sense, is on an hourly

basis showing absolute, complete contempt for the court. Yeah, so this is contempt of court in both the literal and the figurative sense of it. You know, this has not been an issue for him with Judge Eileen Cannon in South Florida, because he hasn't been attacking her and because, you know, she's pretty sympathetic anyway, but it's going to be an issue for him with the DC judge, Tanya Chutkin. She is of the other cases. You know, she's a Democratic appointee. She's also, let's face it, in a Democratic jurisdiction, and she's not white, right? And an immigrant. Right. She's got a bunch of the different features that causes him to go after judges from the time that he went after the judge. A lot of things triggering him there.

Exactly. So the question is, what does Jack Smith do about it? And what does Judge Chutkin do about it? We know the answer to the first question so far, which is Jack Smith has not asked for any specific remedy, but he has made a point of getting it into the record. And the significance of that is that, you know, you and I can just talk about all the things that Donald Trump has done. In a court case, you're not allowed to do that. You actually can only talk about stuff that's been entered into the record. And so my assumption is what he's doing here is he's figured out a way to get it in front of the judge. He's going to let the stuff accumulate a little bit so that by the time he asks for some kind of a remedy, and what remedy there may be available

is a really complicated question, there will be a bunch of these incidents in the record, and he'll be able to say, notwithstanding the court's conditions of release, he has done X, he has done Y, he has done Z. You want, before you ask for a judge to take an action on it, you want something really egregious and really on point. And so I assume what he's going to do is he's going to make sure the judge is aware of every single one of these, but play a longer game. It did feel, and I wrote this earlier this week, that it felt like Trump was baiting the judge, daring the judge, and putting her in, and let's be honest about it, his outrageous behavior does create a dilemma for her because it's almost as

if he wants to be a martyr, that he is trying to bait her into trying to impose some sort of a gag order because he figures he wins either way, right? That he's out there saying, they are taking away my First Amendment rights. He's already making this argument. They're trying to silence me. They're trying to say that I can't defend myself. And yet, if she lets it go, then he simply rolls over Trump and his lawyers into her courtroom and ask Donald Trump himself, what do you mean by these statements? If you come after me, I'm coming after you, or whatever statements they are. Does she have the ability under the Fifth Amendment to ask Donald Trump himself to explain to her, not in front of a jury, not as part of the actual trial itself, does the judge have the ability to make Donald Trump in court just answer questions? What are you doing? What

did you mean? Because that would be an extraordinary moment. Is that possible, first of all? Yeah. So I think as a general matter, the counsel would answer questions for him. But look, she can definitely haul him in for a contempt hearing or for, you know, a revocation of supervised release. He is out on bail, actually. And so, the terms of release are subject to, you know, his following the judge's conditions of release, which do not include threats to participants in the case. I do think she would very likely wait for a motion from the prosecutors for this. I think, normally speaking, judges are loath to do things like this on their own motion. They can get so offended that they do it, but generally speaking, she's going to follow Jack Smith's lead here, I think. But look, we've never seen a situation

like this. Well, exactly. Yeah. I mean, we use the seen a situation like this. presidential nomination. He is out in the middle of a presidential campaign. What do you do with somebody who is flouting all of the normal rules and norms of a case like this? Yeah, and that's the problem. And the answer is you're improvising. You have a lot of rules that are the normal order and you're going to follow them whenever you can. But then you're going to have a situation where the defendant bleats out, if you come after me, I'm coming after you. And you got to figure out, is that different from if somebody, you know, a normal criminal defendant says that on Twitter? Is it the same? Should it be interpreted as a threat to the prosecutors or to the judge, or should it be interpreted as political speech? There aren't

really good answers to these questions, and so she is going to have to do a lot of improvisation. So let's talk about what's going to happen in this first hearing that is coming up for the protective order. Protective orders are not unusual, and there is a distinction, isn't it, that we probably should describe, a distinction between a protective order and a gag order, because there's some confusion in the media accounts, and of course, Donald Trump wants to characterize this as an attempt to gag him. So what is the issue in front of the court involving the protective order in this case? So the issue here is the protection of matters produced to Donald Trump and his lawyers in discovery. The government has a whole lot of information and evidence that it is obliged to turn over to the defendant. And the question is, what rules,

if any, guide his or restrict his ability to bleed about them or go on Fox News and talk about them? These are not classified materials, but they can be individually sensitive materials in terms of people's home addresses or phone numbers, or could potentially bear on the safety of witnesses and that sort of thing. Having a protective order with respect to discovery in major criminal cases is utterly routine, but it is also fair enough for the defendant to try to spar over the precise parameters of it. And so that's the hearing today. What is the protective order for? What is the purpose of the protective order? What is it designed to shield? What are the concerns that the judge has to have about it? Is it about threats to witnesses?

What? I mean, at a certain point, you know, this is going to be a public trial. Why not put everything out there? Why not just, you know, do the full monty? So the answer is the obligations of discovery are much broader than the materials you're actually going to use at trial. And so the concern is, you know, if you're obliged to turn over hundreds and hundreds of thousands of pages of material, some of which includes, you know, again, not national security sensitive stuff,

but personally sensitive stuff, the home addresses of witnesses who you might never end up calling, right? And so, yeah, everything that comes in at trial is going to become public. But what about all the other stuff? And so, the concern is simply there's a privacy concern, there's a witness safety concern, there's just a not making more stuff public than you need to, given that all of this stuff is potentially, you know, involves private material. Well, one of the reasons why I was asking this question is because among the many unique or close to unique facets of this prosecution is the atmosphere of threat and intimidation that is out there. You know,

the threats against Fannie Willis, the threats against Alvin Bragg, the threats against Jack Smith. We're seeing, I mean, we just saw yesterday in Utah where the FBI had a confrontation with a super MAGA Trumper who was threatening not just to assassinate Joe Biden, but a lot of the people who were involved in the prosecution of Donald Trump. Now, Donald Trump can't be held directly legally liable for all of that, but is this something that has to be in the mind of the judge that this information can and will certainly be weaponized at a moment of maximum tension where the potential for violence cannot be minimized and will be rising exponentially over the next few months. That is absolutely right, and that is one of the concerns. But even

well short of that, you know, in high-profile cases, having a protective order to protect unnecessary disclosure of discovery of this type is more norm than exception. And so the idea that you would have some degree of protection that prevents a high-profile defendant from spilling material out to attack witnesses or to distort testimony. Remember, this is the man who had a phone call with Mike Pence in which he just lied and then made a statement that the vice president and I are in full agreement that he has the power to act, right, after a phone call in which Pence said precisely the opposite. And so would he simply lie about what witnesses had said? You know, having a protective order in this situation is just common sense, and I would be stunned if Tanya Chutkan does not enter some kind of a protective order and, you know, resolve the question of the parameters of that protective order on the side of caution.

But even if she does do that, even if she does issue that order, what really does prevent Donald Trump from being Donald Trump, from going out and lying about the content of the witness testimony, because you're right. I mean, you know, there's a pattern in practice here that he gets out in front and says, you know, there's material in there that it completely exonerates me. In fact, turns out that Mike Pence actually has, you know, told multiple different, he could just make this shit up and get out in front of this. You're seeing this happening up on Capitol Hill with some of the other testimony going on with the Biden cases, which I don't want to get into, where you have

testimony that is characterized that when you actually see the testimony, when you actually hear it, there's no resemblance to what they're describing. I mean, can a protective order stop that sort of thing from happening? It can't stop it entirely. It can discourage the selective release of information that it covers. Now, what happens if he does it anyway? The answer is there's some, you know, you can be held in contempt, you can be penalized in the context of the litigation, and ultimately the conditions of release are potentially revocable. So there are remedies, but the judge has to be prepared to use them. See, in Trump's mind, though, he's thinking, okay, you know, his lawyers will tell him all of this, and he'll say, yeah, they wouldn't

dare. They just won't dare. Let them try. What, you think they're actually going to lock Donald Trump up? You know, if it was you or me, and we behaved in this particular way, the judge might say, I'm sorry, you've been found in contempt of court, Mr. Wittes. You know, bailiff, would you take Mr. Wittes into custody? Because this is what your sanction is going to be. Donald Trump is calculating either A, they won't dare to do that, or B, if they do, there will be such a backlash against it that it will, in fact, redound to his benefit. I mean, in his mind, he is sort of daring them. I want to see how far I can push this. And the reality has been,

we don't know how far he can push it. We don't know what he can get away with. Correct. He has never faced a judge and behaved badly enough in front of a judge who is inclined to run a very tight ship in court. Remember, he's only been in court in criminal cases since March. And so there's not a long track record. This is new to him. And it's also new to the judges, right? And so I think what you're going to see is as you approach trial in some of these cases, as it gets closer, we're going to have some of these cases come to confrontation. And this is an initial skirmish in the question of how far is he allowed to go. All right, because we have so much ground to cover here, I don't want to spend a lot of time on this because I think I know what the answers are. You know, Donald Trump has made it clear and his lawyers have made it clear they're going to try to push for a change of venue, moving the trial out of D.C. to West Virginia. And he has suggested, his lawyers have not, but he has suggested that he would ask for the recusal of the judge. My guess is that neither one of those is going to happen. Do you agree? He's not going to get a change of venue and he's not going to get a change of judge. My guess is that neither one of those is going to happen. Do you agree? He's not going to get a change of venue and he's not going to get a change of judge.

Agreed. There's no basis for, he doesn't like Tanya Chutkin for some reason. That is not a basis for recusal. To my knowledge, she has no record that would require or even suggest a recusal, the chances of a change of venue are near zero. Okay. So let's get onto the meatier, juicier stuff here. Okay. Kenneth Cheeseborough and the secret memo. Now, the prosecutors have had this for some time, but we hadn't seen it until the New York Times broke the story on Tuesday of this previously unknown internal campaign memo that actually, again, keeping in mind the immortal words of Stringer Bell, are you putting a criminal conspiracy into writing? They laid out the plot to use the false electors to avert the 2020 election. It's being portrayed as a crucial link in how the effort became a criminal conspiracy. And this memo was referenced in last

week's indictment, and the Times somehow got a copy of this. And it is the work of one of the lesser-known unindicted Koch conspirators, Kenneth Cheeseborough, who is very active here in Wisconsin, by the way. And in this memo, Cheeseborough acknowledges that this idea is a, quote, bold, controversial strategy that the Supreme Court would likely reject. But the memo may have been instrumental in stoking all the chaos that followed. So what is the significance of this memo, Ben? Well, so the significance of the memo is that it is a link in the chain of how this, you know, recruitment of fake electors for purposes of preserving rights in case you prevail in litigation turns into this broader effort of sort of to heck with

the actual election results. Let's appoint our own electors and get Mike Pence to accept them instead of the electors that the people actually, you know, elected. And I think it shows that the difference between what you can get as the committee, right, and then what you can get if you have a grand jury and you're really focused on it. This is material that is new. And it also, I think, will be a part of the story of the progression of the argument. So the indictment lays out, you know, first, this was an argument related to preserving our position in the event that we prevail in litigation. That's what the Democrats did in Hawaii in 1960, and actually prevailed in the litigation, and their alternative slate of electors was ultimately accepted. So it starts kind of as that, and then kind of evolves into just a pure criminal scheme. And this is an

important link in that chain. What I found interesting, he's talking about the messaging strategy that the alternate electors were just a routine measure. And of course, you know, they would like to say, well, this is just politics. This is just free speech. But the indictment calls it a criminal plot engineer, a fake controversy that would derail the proper certification of Biden as president-elect. So from the memo, Cheeseboro writes, I believe that what can be achieved on January 6th is not simply to keep Biden below 270 electoral votes. It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count unless and until Biden can obtain a favorable decision from the Supreme Court upholding the Electoral Count Act as constitutional,

or otherwise recognizing the power of Congress and not the President of the Senate to count the votes. So then this resulted in seven lawyers working in seven different states to get these fake electors, and the Times says it became the cornerstone of the indictment against Mr. Trump. To this whole question of the fake electors, I was listening to a very interesting discussion yesterday about this and, you know, pointing out that in Arizona, they actually submitted a forged certificate to the archives about the electors. And I guess I'm wondering, you know, how is this different than any other kind of election fraud? Republicans have been railing against vote fraud. If you went

in and you forged information on your voter registration, or if you tried to vote in an illegal way, Republicans would universally say, well, that's voter fraud. That's terrible. We had to take this seriously. How are the fake electors different than just voting fraud, the kind of voting fraud that people actually go to jail for if they do it in, say, Philadelphia or Milwaukee? Yeah. So the answer is at the extreme case, it isn't different. And this is indicted as among other things, a conspiracy to defraud the United States, right? And the nature of the fraud, at least in part, is trying to count fake electors like real electors. State by state, there is variation in how it is done, right? In some states, there's this little

fine print that says, by the way, only to be used in, you know, if blah, blah, blah. In some states, there's this little fine print that says, by the way, only to be used in, you know, if blah, blah, blah. In some states like Arizona, it's really just simple fraud. And there's no caveats. They are actually presenting themselves as real electors, even though they are not elected. And I think that some of the fake electors in Michigan have been indicted. Some of the fake electors in Georgia have received target letters, though they may have testified under a grant of immunity. And so they may not be individually charged by Fannie Willis. We'll have to see. I think it's going to vary state by state, but you're actually not allowed to submit to the Senate and the National Archive a certificate that says you're the rightful elector of the state of Wisconsin if you're not. One of the other big stories of the

last 28, 48 hours is it turns out that Jack Smith had a search warrant for Trump's Twitter account. He obtained the warrant back in January based on probable cause there was evidence of a crime inside of the Twitter account. The New York Times reports, this is the first known example of prosecutors directly searching Mr. Trump's communications, adding a new dimension to the scope of the special counsel's efforts to investigate the former president. Ben, what are they looking for in the Twitter account? I mean, that's nothing secret. I mean, right, it was out there in broad daylight. So give me your sense of what's going on here and whether there's any legitimacy to Trump's complaint. Wait, now you're really going after my First Amendment rights. There's no legitimacy to that.

Your communications are seizable with a probable cause order, and that's exactly what happened, and there's certainly probable cause of a crime. I think there's two possibilities here, and I don't know which is the correct one. One is, I suppose, that there could be some private communications in there that are germane and that they had information about, for example, a Twitter DM of some kind, right? So there's something that's not simply the public communications. I think that's unlikely, honestly, but it's possible. The other possibility, which I think is the more likely one, and we will have to wait to see how this material, if it's used, how it's used,

is just that they were either verifying that there is no such information or that they want the official records from Twitter to be able to put them on trial. So in other words, you put on an FBI agent as a witness that says, we obtained the following material from Twitter that Donald Trump tweeted. And then that way you get all of the tweets into the record that you can then use. So it may be just a formal mechanism for getting Twitter material into the trial record. Politico's Kyle Cheney, who I think initially broke this story, was kind of spitballing a couple of theories about what Smith might be looking for, he might be checking to see if the relevant tweets came from Trump's own personal device, whether somebody else sent the be peaceful tweets,

which I'm not sure how that would matter, but also checking his DMs, his draft tweets. Smith could also have testimony from Dan Scavino and Mark Meadows about the circumstances surrounding the various tweets that could be corroborated. New York Times noting that the special counsel's office has seized the phones from John Eastman and Jeffrey Clark, two of the likely unindicted co-conspirators. So just a little side note. I mean, you know, it's awfully interesting, I think, that Elon Musk apparently fought this and to the extent that Twitter was fined $350,000 for not complying with the subpoena.

It's what happens when you fire all your lawyers. Yeah, exactly. But it's also interesting that Elon Musk always complies with the demands of dictators and oligarchs. Right, but not Jack Smith. Yeah, exactly. Turkey says, we want you to censor information. Elon Musk says, yes, sir, absolutely. Or if Russia says, please get this wittest guy off the site, he's impersonating our embassy in Washington, the wittest guy is gone. Are you still gone from Twitter or whatever it's called now?

Yeah, yeah. I am permanently banned from Twitter. Permanently banned from Twitter? Yeah. There are some of the worst actors in the world who are on it. I know. I can't tweet foot pics at Rick Grinnell anymore. He's allowed on the site, but I'm not. And, you know, the Russian embassy, you know, they represent genocide in Ukraine. They're fine on Twitter, but I impersonate them.

I'm off. You know, go figure. It's Elon Musk. I want to take a couple of steps back from where we are at, because, you know, when Jack Smith's indictment first came down, I think many of us thought, you know, this is a very, very powerful indictment. This is very, very strong and remarkably broad. Since then, of course, there's been massive pushback from Trump world, including sending his lawyers onto all the talk shows over the weekend, known colloquially as the full Ginsburg. But you're also seeing some, and I want to be nice about this, some kind of hand-wringing from people that we know, from people who have been critical of Trump. And I know that you know Jack Goldsmith,

who served in the Bush administration as an assistant attorney general and a special counsel to the general counsel of the Department of Defense. Is he a colleague of yours? I mean, you've worked with him, right? Yeah, no, he's one of my two co-founders at Lawfare and one of my very closest friends. And I think the world of Jack Oldsmith and take all of his arguments extremely seriously. Okay, well, that's why I wanted to ask you about this, because he has a piece in the New York Times this week. The prosecution of Trump may have terrible consequences, and I'll just read a couple of paragraphs and then get your response. It may be satisfying now to see the special counsel, Jack Smith, indict Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice

that will compound the harms to the nation from Mr. Trump's many transgressions. And I'm skipping quite a bit down. The prosecution may well have terrible consequences beyond the department, what it does for the Department of Justice, for our politics, terrible consequences for our politics and the rule of law. It will probably inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future congresses and by the administration of the opposition party to the detriment of sound government. It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth-shading in the facilitation

of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. These practices will probably be disputed in the language of and amid the demands for special counsels, indictments, and grand juries. Okay, he goes on, you are familiar with his argument. Here is somebody with solid credentials from the anti-Trump world saying, yeah, you know, this whole thing might backfire. The damage it will do, it will be incalculable. So what think you, Mr. Wittes? Will the prosecution of Donald Trump have terrible consequences? So it won't surprise anyone to know that I disagree with Jack about this. Although whenever I disagree with Jack, I take it as an occasion to consider whether I may be wrong,

because that is the nature of my regard for him. A couple of things. One is that Jack himself, a lot of the sentences that you read are written in a very tentative way. This may may have terrible consequences. The charges may be justified, right? And I agree that it may have terrible consequences. For example, if Trump is acquitted or if the Supreme Court were to throw out the case, you know, that would be a terrible outcome. And so I don't disagree with the possibility that this could all backfire. The problem that I have, and Jack alludes to this toward the end of the piece, is that I believe that you can prove beyond a reasonable doubt that he's committed the offenses that are described in this indictment, are you really going to not bring that case out of concern for things that might happen? I don't think that's really an option realistically available to the Justice Department. Well, you know that I agree with you. I think that, again, we sort of need one column that lays out all of the risks, all of the dangers,

and the terrible potential consequences of prosecuting Donald Trump, which are all real, and he lays them out. But you need to have another column, you know, set side by side, what are all of the risks and terrible consequences of essentially saying that Donald Trump should get away with all of this, that he is in fact above the law, that there is no accountability, that under the law, he can't be charged when he is the president. And in his post-presidential life, he will never also be held for account. And that in fact, impeachment is really a dead letter. There are real risks here, you know, and it is this calculation of risk versus reward, but also risks versus risks. Now,

you know, one of his points in terms of just the political optics here, he says, look, there's no getting around the fact the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden. This, by the way, is a big line you're going to be hearing from the right, from Republicans, from Trump world. But, you know, it's got some validity. And he writes, this deeply unfortunate timing looks political and has potent political implications, even if it is not driven by partisan motivations. And it is the Biden administration's responsibility, as its Justice Department reportedly delayed the investigation

of Mr. Trump for a year and then rushed to indict him well into the GOP primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated. This does seem to be, at least in terms of the optic, but this is one of the really unfortunate consequences of Merrick Garland's slow walk of this, isn't it? I don't know. Like, it seems to me they're sort of damned if they move full speed ahead because then it looks like they're gunning for Trump, right? So they try to follow the regular order and then they get dinged for that on the other end because now it looks like you've delayed and slow walked into the election season. I think the answer has to be that if the indictment is

justified, then it's justified. It was justified a year ago. It's justified now, and it's justified a year from now. If it's not justified, it's not justified. It can't be that the Justice Department should have been really focusing on the timing back in March and April of 2021 and saying, okay, we've got to get this done quickly enough that it doesn't look like we're in the election season next time. And remember, Trump accelerated his announcement to create this optical problem. So we have to do it fast enough to avoid that optical problem, but slowly enough so that it doesn't look like we're departing from the normal order of going, doing these investigations ground up. I don't think there was a way to do this that people who want it to look political aren't going to find that it looks political. The ultimate question is, is the indictment provable and is it justified? Again, there's two different lenses to look at this through, right? I mean, there is the political lens. What does it look like? How

will it play out in the campaign? And then there is also the more orthodox Department of Justice legal lens, which is what you are talking about here. Is this the right thing to do? Is there a case? Is it a legitimate case? Should we pursue it? Or should we not pursue what we regard as a legitimate indictment because of the political optics. And remember, the normal way that the Justice Department avoids the appearance of interfering in elections is to not take overt steps in an election season within 60 days of voting, right? Right. within 60 days of voting, right? We're now talking about a year and three months before

the general election and a full six, eight months before the first primary. So, you know, you're not talking about a situation in which they're anywhere near the window in which Justice Department policy says, wait, be careful here. You don't want to interfere in an election. But now we've extended the window to the Republican primary season as defined by whenever Donald Trump announces that he's a candidate. Two years before the election with the specific understanding that he's trying to throw a wrench into the optics of a prosecution. I don't really want Jack Smith to be playing ball with that, honestly. Okay, so let's switch gears. We've spent a lot of time on all of this for obvious reasons.

What is Eileen Cannon up to? What's going on with the document case? Earlier this week, it looked like she was digging the special prosecutor and denying his motion to make some sealed... Well, again, you describe what she's doing and whether you think that it's out of the ordinary. She's also apparently a little bit bent out of shape about the fact that there is another grand jury, which is also investigating this particular case. So what's going on in that case? Which she appears to have revealed the existence of. Yes, she did. The short answer is we don't quite know yet because the documents that she has stricken from the record were filed under seal anyway. But the government filed some motions that appeared to offend her for some reason, and she ordered them stricken from the record. was proper for the government to continue using or to use an out-of-district grand jury to continue

investigating this matter post-indictment in Florida. This was taken rather badly by a lot of legal commentators. The particular issue at stake is probably not the biggest deal in the world, but it does seem like a kind of minor league judicial temper tantrum that does not bode well, especially for those who are concerned that Judge Cannon is sort of in the tank for Trump. It does seem like a very odd behavior, among other things, because the government was doing this, was trying to keep this stuff sealed because it has obligations of grand jury secrecy. And so she then prevents it from filing under seal and reveals the existence of the grand jury, which is precisely what the government was presumably trying to protect. You know, you can attribute it to the fact that she's a very inexperienced judge in criminal matters, which is true, by the way. You can attribute it also to the fact that, you know, she does always seem to make stupid mistakes in the same direction, which is in favor of Donald Trump.

However you interpret it, I don't think it bodes especially well for the conduct of the trial in Florida. So the latest development is Trump wants his SCIF back. What is SCIF? That's like this secret sealed room. I mean. Yeah. So this is the most ridiculous thing. A SCIF is a secure compartmentalized information facility, which is where you, the only place

where you're allowed to handle classified information is in a facility that is secured for classified information. Donald Trump is accused of having unauthorized possession and retention of classified information and securing it in a location that is not secure, i.e. the bathroom at Mar-a-Lago and the stage at Mar-a-Lago and the storage room at Mar-a-Lago, to which his answer is, okay, well, give me a skiff. But that's, you know, kind of ridiculous. You know, like the response to your committing the crime is not to, you know, repeat the crime, right? You're not supposed to have access to this information. So it's a, you know,

it's basically a motion to allow me to continue committing crimes. So next week is the week for the Fulton County indictments. Your colleague Anna Bauer tweeted that there are signs that next week it looks like the grand jury is going to hand down these indictments. Now, witnesses did not get a notice to me today, Thursday, and the judge is scheduled to serve as a presiding judge next week. And CNN is reporting that Fannie Wallace is expected to seek more than a dozen indictments when she presents her case to the grand jury next week. Obviously, we'll be discussing that next week's program. But your thoughts about all of this and how much overlap

there's going to be with Jack Smith's case? Well, there will definitely be a lot of overlap because Jack Smith's case, of course, involves to a very heavy degree activity in Georgia that is central to Fannie Willis's indictment. That said, there is material that she is clearly looking at that is beyond the scope of the federal indictment. She has, for example, sent target letters to the fake electors in Georgia. Jack Smith hasn't indicted any fake electors. I don't think she's likely to charge them, but she's clearly looking at them and I think has gotten testimony from them under some kind of immunity grant. She is clearly looking at some of the people who assisted the president. She is, for example, sent Rudy Giuliani a target letter,

which he's a co-conspirator, named co-conspirator in the federal indictment, but has not yet been charged. I think you're also likely to see some of the other co-conspirators at the federal level charged in this in a fashion that is maybe coming in the federal case, but hasn't happened yet. And then there are some odd events that are very Georgia-specific. For example, there was some computer intrusion and theft of material in Coffey County that I think probably does not, at least that I can tell, has not attracted any particular federal investigative interest. But Fonny Willis,

at least according to some press reports, may be interested in. Yeah, this is going to be ugly. By the way, that's not breaking news that Trump is going to make it as ugly as possible. But once again, he continues to push the edges here. He was in New Hampshire this week. Trump calls Fannie Willis racist, something, by the way, he always uses as a way of signaling. And he never calls white people racist. They're all racist if they happen to be a black person. Jack Smith is deranged. He's mentally ill, but he's not

racist. But Alvin Bragg and Fonny Willis are racist, and one assumes that means because they're black prosecutors prosecuting him. Tanya Chuck, her time in the racist barrel will be coming. Yes.

You just know it. I mean, that's his card. But he went beyond that. So Trump calls her. He's attacking her as racist. And then he claims she had an affair, a sexual affair, romantic affair with the head of a gang she was prosecuting. I had missed that.

Which, as far as I can tell, is complete bullshit, completely made up. Now she's got the dilemma of basically saying it's completely not true. She wrote a memo to her staff saying, let's not respond to this. There's no truth to it whatsoever. We don't want to get caught up in the food fight. But once again, you have Donald Trump in this sort of debating, like, you know, if I have you denying that I win, right? So they're actually running out an ad bankrolled by his campaign. They're running a television ad in Atlanta, repeating the gang leader story. Now, again, funny, Wallace was saying this was false and derogatory, but the ad's titled The Fraud Squad,

and the narrator calls her Biden's newest lackey. So, you know, not a surprise that Donald Trump is attacking judges, that he's attacking prosecutors, etc. But he's almost named to take a deep breath and go, you know, but every week it seems that he escalates it. So it's not just same old, same old. What's been in the past may have set the pattern of it, but this is going to be just incandescently shitty. It is going to be incredibly ugly. He is going to escalate and escalate and escalate until some higher power makes him stop. Right now, there is no case in Georgia, right? So he's not, if you're attacking the prosecutor who hasn't indicted you, there's no court you can go to complain about that unless, as Fannie Willis, you're going to sue him for libel, which of course she's not going to do. and there are orders from the court to not contact or threaten witnesses or court officials or prosecutors, then there are potential remedies for that sort of thing. But see the earlier part

of this conversation, somebody has to be prepared to enforce them. I will say that the judge who has supervised the special purpose grand jury, Judge McBurney, has impressed the heck out of me. He's a very serious judge. And in the federal system, people sometimes scoff at mere state judges. Judge McBurney is a first-rate judge. I don't know if he will be assigned to this case or not, but I would not want to tangle with him if I were Donald Trump. Just based on my observations of his handling of the special purpose grand jury, I think he might be the wrong judge to mess with in something like this. Well, we don't know whether this is going to make a difference, whether this is going to change the dynamics of our politics. That seems to be unlikely. I think at this point, we've figured out what the Republican base and the Republican Party is willing to tolerate. I don't know if there's going to be any new information, a lot of speculation that she's going to be bringing racketeering charges, which,

which by the way, you know, makes quite a resume for Donald Trump. Conspiracy, conspiracy, obstruction, espionage, and racketeering. It's just like, put that on your business card. One thing that will be different next week down in Fulton County is the sheriff is making it quite clear that, yeah, Donald Trump is charged and he is arrested and arraigned. He's going to get a mugshot. We are going to get the Donald Trump is charged and he is arrested and arraigned. He's going to get a mug shot. We are going to get the Donald Trump mug shot. That's coming. And the world will be a better place for it. I will say people are going to make a big deal about the RICO thing, partly because there's so much great mythology about RICO. The Georgia RICO law is a hell of a lot broader than the federal RICO law, and Fonny Willis has used it. She's described herself as a fan of it, and she used it. Atlanta public school teachers cheating scandal where they basically fudged test results to keep

up the Fulton County scores in national testing standards. And Fannie Willis used, as an assistant DA, used the Georgia racketeering law to prosecute a whole bunch of people who were involved in that and got convictions and significant sentences on a bunch of them. So this is a statute that she likes. She has retained the services of a prominent expert on the subject for purposes of this investigation who she's worked with before. So I think the possibility of a Georgia RICO component of this indictment is non-trivial. So next week's episode of the Trump trials, we may be spending a lot of time talking about RICO and racketeering, and I am looking forward to that, Ben.

I am looking forward to it as well. I will be joining you from some northern European place where I will be harassing Russian diplomats with lasers. But I will take a break to join you and to chat about, you know, all kinds of indictments that may have come down between now and then. Well, stay tuned for that. And thank you all for listening to today's Bulwark podcast, our latest episode of Trump Trials. I'm Charlie Sykes. We will 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.