The Bulwark Podcast - Trump Keeps Admitting His Crimes

Episode Date: September 7, 2023

Trump did himself no favors talking to Hugh Hewitt, the Proud Boys could've spared themselves a lot of prison time, the Fulton case may move quickly, E. Jean Carroll wins again, and when will the cascade of witness flipping start? Lawfare's Ben Wittes and Roger Parloff join Charlie Sykes for The Trump Trials. 

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maintained. If it isn't and your landlord isn't responding to maintenance requests, That's not good enough. Your Toronto apartment should be safe and well-maintained. If it isn't, and your landlord isn't responding to maintenance requests, RentSafeTO can help. Learn more at toronto.ca slash RentSafeTO. Welcome to the Bulwark Podcast, a new episode of the Trump Trials with our partners from Lawfare. Donald Trump did not have a great day on the legal front Wednesday, including E. Gene Carroll, who won another defamation case against him. And hearing one of his employees is actually officially cooperating with Jack Smith in the documents case. We're going to be talking about the Proud Boy trial. We're going to be talking about their sentencing. We're joined, of course, once again by Ben Wittes, editor-in-chief of Lawfare, and Roger Parloff, senior editor at Lawfare, who has been covering the Proud Boys trial. So, Ben and Roger,

welcome back on the podcast, first of all. Thank you. Good to see you. Okay. Could you indulge me for a moment? Because I just have to get this off my chest. The U.S. Senate's dumbest member, Tommy Tuberville, is explaining why he's put a hold on all of these promotions in the military. And he had some comments about the wokeness of the U.S. Navy yesterday. Let's just play this. There's no second place in war, okay? We have to have the best.

And right now, we are so woke in the military, we're losing recruits right and left. Secretary del Toro of the Navy, he needs to get to building ships. He needs to get to recruiting. And he needs to get wokeness out of our Navy. We've got people doing poems on aircraft carriers over the loudspeaker. It is absolutely insane of the direction that we're headed in our military, and we're headed downhill, not uphill. Ben, they're poems. They're poems. Dude, you can't have people writing poems during war. You know, that leads to Homer. That leads to, you know, all those World War I British poets.

You know, you just can't have it. You know, war and poetry don't go together. It's wokeism, no poetry for the military. I'm reluctant to venture into Tommy Tuberville's mind, because it's a scary and vastly empty place. But of all the things he could have picked to describe, he's talking about the wokeness of the military. I mean, he's holding the entire U.S. military hostage because of wokeness. So you would think that he would have just this killer anecdote.

This is why we cannot beat the Chinese. This is why I need to do what I am doing. And my example is they're reading poetry. Poetry, yeah. You should have just stopped with reading. they're reading poetry. Poetry, yeah. You should have just stopped with reading. It's a terrible thing. They're reading words. When you're so stupid that you do not know the long and storied history of poetry in warfare.

You said Tommy Tuberville's brain is a scary place. I think the empty places that you went to next is more accurate. This is a very stupid man, and that is a very stupid comment. It is. And I'm guessing that he doesn't know about Henry V's St. Crispin's Day speech to the soldiers. We few, we happy few, we band of brothers. Yes, they will hold their manhoods cheap. They were not here on St. Crispin's Day, but... Oh, wait, wait, wait, wait, wait.

This story shall the good man teach his son, and Crispin Crispian shall never go by from this day to the ending of the world, but we in it shall be remembered. We few, we happy few, we band of brothers. For he today that sheds his blood with me shall be my brother. Be he ne'er so vah. This day, this day shall gentle his condition.

And gentlemen in England now abed shall think themselves a curse. They were not here and hold their manhoods cheap. Well, any speaks that fought with us upon St. Crispin's day. I also just want to say that, you know, the whole of the Iliad is a war poem. Like, all of it. It's not like some of it. It's the whole thing. There are whole chapters of it that are just lists of people who were, you know, killed and what ships they brought to Troy. Tommy Tuberville, learn some poetry, dude. No, just learn to read, dude. I mean, I guess what's interesting is this, the culture war has gone to the point where he actually probably think he was scoring, you know.

There are people who go to college and they read books. You know, the Battle of Midway, they were not reading John Keats. There was no Percy Bysshe Shelley at the Battle of Midway. He wouldn't even know those names. What am I saying here? He's never heard of it. Okay, I am sorry. I just had to do this.

Yeah, sometimes you just got to have fun with them. Yeah, I know. Okay, let's start with the documents case. So Donald Trump goes on, of course, goes on the Hugh Hewitt show and said that he would absolutely testify in his own defense at his criminal trials. Would you like to hear the former president of the United States on with Hugh Hewitt explaining his legal strategy? Let's play Donald Trump on Hugh Hewitt. Did you direct anyone to move the boxes, Mr. President? Did you tell anyone to move the boxes? I don't think about anything. You know why? Because I'm allowed to do whatever I want. I come under the Presidential Records Act. I'm not telling you. And every time I talk to you,

oh, I have a breaking story. You don't have any story. I come under the Presidential Records Act. I'm allowed to do everything I did. If you have to go to trial, will you testify in your own defense? Oh, yes, absolutely. You'll take the stand. That I would. That I look forward to. Because that's just like Russia, Russia, Russia. That's all the fake information from Russia, Russia, Russia.

Remember when the dossier came out and everyone said, oh, that's so terrible, that's so terrible. And then it turned out to be it was a political report put out by Hillary Clinton and the DNC. They paid millions for it. They gave it to Christopher Steele. They paid millions and millions of dollars for it. And it was all fake. No, I think that obstruction charge is going to get to trial, Mr. President. I think that...

Okay, if you do, and they ask you on the stand, did you order anyone to move boxes? How will you answer? I'm not answering that question for you, but I'm totally covered under the law. Okay. If you read the Presidential Records Act, just read it. Just read it. Take a look at it. Okay.

I'm totally covered under the law. Is that what it says? It's a civil act. Just read it. Just read it. Take a look at it. Okay. I'm totally covered under the law. Is that what it says? It's a civil act. It's civil. Now, Biden had no civil act. The things he did are criminal. But he doesn't have a deranged person on his case. You know, they gave me deranged Jack Smith.

Deranged Jack Smith. All right, Ben, where do you want to start with that? The Records Act that says, that apparently explicitly says Donald Trump can do whatever he wants, and that's what he's going to testify in what's going to be an epic day in court, right, when Donald Trump actually goes on the road. I have three things to say on this rant. The first is that Donald Trump will not testify in his own defense if this thing goes to trial because no even marginally competent lawyer would allow him to take the stand. If he does take the stand, remember that

every single issue that is even ancillarily connected to this case, becomes subject to cross-examination. So there is no chance that he will take the stand. The second point is that the Presidential Records Act in no sense entitles him to hoard classified information at his compound at Mar-a-Lago, I agree with him that people should just read the Presidential Records Act. It really doesn't say what he thinks it says. Call his bluff. Actually read the thing. Actually, it's not that hard. It's not that complicated a statute. Read it. It does not say he can have classified material in the bathroom at Mar-a-Lago. The third point I would like to make, and Hugh Hewitt is not my favorite person in the world,

but he's a smart lawyer, actually, and he is picking up on something correct here. The obstruction counts in this indictment are not related to the document handling issue. And even if you completely buy Trump's bullshit about the underlying document retention case, there's still these subpoenas and failure to return material and the machinations to prevent the return of the material that violate the obstruction laws, even if the material weren't classified. And so Hugh Hewitt here is picking up on something significant, which is that the biggest danger to Trump, which doesn't depend on the Presidential Records Act or anything else. It's just that he had a subpoena and he went out of his way in a hundred different ways to defy it, including

moving the boxes, ordering those boxes moved. And Trump is just walking himself into a world of hurt with these admissions. So we also had some other developments, including the fact that his lawyers had warned him, you know, if you defy the Department of Justice, they actually could get a search warrant and the FBI could come to Mar-a-Lago. And apparently that didn't dissuade Donald Trump, who said, well, what if we just lie to the Department of Justice about this and, say that we're not going to do this? And the fact that his lawyer then makes a recording of his recollection of all of the conversations, and that's now in the record. Evan Corcoran, who was maybe covering- And who is still representing him on other matters, despite being apparently a prosecution

witness in this one. Wow. Now, one of the things that Jack Smith has done has been to pierce that attorney-client privilege based on the fraud exception, the crime and fraud exception. Is that something that will be re-litigated in the trial? Could Judge Eileen Cannon, could she reverse that and say, hey, no, we can't use any of that, I'm going to reinstate attorney-client privilege? That seems like a major issue because that piece of evidence, obviously, is pretty important, pretty damning. Yes, so she could. Presumably, the government

will try to introduce this. This was, for grand jury purposes, ruled on by, I believe, Judge Beryl Howell, who was chief judge at the time in the District of Columbia. And I suppose, you know, you could say to the extent that the government tries to put on Evan Corcoran's testimony or his notes or the recording of himself, Trump could challenge the admissibility on the basis of the attorney-client privilege and argue that Judge Howell was incorrect in her ruling. And that does leave potentially a fair bit of discretion in the hands of Judge Cannon, whose fidelity to the law and precedent has not always been perfect. And so I do think that's a bit of a wild card, especially because such matters are generally not going to be appealable on an

interlocutory basis. I do think that's an area where she could wreak some mischief, to be frank. Okay, one more question on the documents case. This information technology employee, Yusel Tavares, struck a cooperation agreement with a special counsel's office. This was revealed in a new court filing. CNN is reporting it is former attorney Stanley Woodward wrote in the court filing that Tavares agreed to the deal after being threatened with prosecution. This is the first public document showing that Jack Smith has won the cooperation of a key witness. We kind of already knew that, but it obviously has got to be sending a few tremors through Mar-a-Lago. Yeah, so we talked about this a couple weeks ago when I was in Iceland, and I mean, I think this flip has significance both obviously for this case, but also I do think

the bigger significance of it is potentially for other witnesses, both in this case and in the Fulton County case, where you have 18 co-defendants, you know, you have unindicted co-conspirators in the D.C. case. And by the way, everybody in the world is represented by Stanley Woodward. You know, it's like one lawyer to rule them all. No conflicts there. Yeah, no conflicts there. And so what happens is first Cassidy Hutchinson gets another lawyer and starts cooperating with the January 6th committee. Then this guy gets another lawyer

and magically starts cooperating. The question is when the cascade starts, right? Because at some point, all of a sudden, people are going to realize that it's not in their interest to be represented by the party lawyer who's representing everybody else only for purposes of holding their stories together. Experience amazing now at Dawn Valley North Lexus. Right now, lease the 2024 IS300 Premium Package from just $518 per month for 28 months at 2.9%. Or choose from Canada's largest selection of Lexus demonstrators with offers you won't want to miss.

Now is the time, and Dawn Valley North Lexus is the place. See website for details. Expect excellence. A proud member of Wayne's Auto Group. So let's talk about the January 6th D.C. case. Roger, you were in the courtroom for the nearly four-month Proud Boy trial earlier this year, and you were there when the jury convicted them in D.C. back in May, and I think we talked about this. So I know you were on vacation, well-deserved vacation. You weren't there for the sentencing, but you obviously followed it and you covered it. So I just want to get your observations on what happened this week when Enrique Tarrio was sentenced to 22 years in prison, the longest prison sentence handed out

to anyone involved in the attack on the Capitol. And Enrico Terrio was not there actually present at the Capitol, but obviously the judge was going to hold him accountable. So talk to me a little bit about what happened in court on Tuesday. And like you say, I wasn't present there, but I've tried to familiarize myself, including with Brandy Buckman's live tweeting. Yeah, 22 years is pretty hefty for anyone. The government was asking for 33 years, but I was impressed. This is four more than Stuart Rhodes received. He got 18 years, the founder of the Oath Keepers. It was not a surprise in the sense that he was the chairman of the Proud Boys and he had created the chapter that was devoted to activities on January 6th. He created it the day after

Trump issued that tweet on December 19th, the will be wild tweet calling people to DC. He created this group and he led it right up until January 4th, two days before, and then he was arrested. And this gets into some sort of interesting Freudian speculations about what was going on with Tarrio exactly. And there's different ways to interpret that. So he was in Baltimore, but while the thing was going on, he was in contact by telegram. He had a phone call with one of the other top five, Joe Biggs for 42 seconds. While the Capitol was under siege. He tried to reach Nordine by phone, Ethan Nordine, who was the ground leader.

And then he issued statements on Parler and also privately that were extremely powerful. At 2.38 p.m., he said on Parler, don't effing leave. Now, this is right in the middle of the insurrection at its most uncontrolled point. Then he said, proud of my boys and my country. He sent out a photo of a rioter sitting at the dais where the president of the Senate, the vice president, president normally sits 1776. But the most damning thing was at 2.40 p.m., he wrote a private email to the National Advisory Board of the Proud Boys on a chat called Skull and Bones and said, make no mistake, we did this. And Judge Tim Kelly, who is incidentally a Trump appointee. Which is interesting, an interesting footnote. Yeah. With all the rhetoric we hear about how the Biden regime is doing this,

no, it's actually a Trump appointee. I'm sorry. Yeah. He repeated that twice, that phrase, make no mistake, we did this, hitting each word the second time. Again, according to Brandy, I wasn't there. Make no mistake, we did this. So he was the top guy. I actually was not certain because Ethan Nordean was the ground leader that day. I wasn't sure who he would consider the top guy, but the government certainly considered Tarrio the top guy and also Biggs. Apparently, I was surprised by that. They sought 33 years for Tarrio and Biggs, who eventually got 17. Joe Biggs had been an employee of Alex Jones at Infowars at one point, and he had a huge

following in that parlor following, and he was sort of considered a war hero and had a huge following in that, you know, parlor following. And he was sort of considered a war hero and had a lot of influence. So the government also focused on him. But the sentence makes sense. But all the same, 22 years, just any way you cut it, it's a big number. I thought it was interesting. I mean, Tarrio's defense attorneys, I think, you know, understandably argued that, you know, because he wasn't there that day, he couldn't have foreseen what would happen. And the judge just wasn't having it, said, you know, you made that argument to the jury, the jury did not buy it. And he noted that a co-defendant's pepper spraying of an officer was in fact foreseeable, since Tarrio himself told the Proud Boys to bring pepper spray. He also ruled that sentencing enhancements should apply. So I think this was pretty wild. I thought it was also interesting

that Judge Kelly, the Trump appointee, said that he found the January 6th planning started as soon as December 19th, the day of Donald Trump's, you know, will be wild tweet. So, you know, part of this is tracing it right back to that call from Donald Trump. Absolutely. And if Trump does go to trial in the Jack Smith case and is convicted, you really have to wonder, the sentencing guidelines will be different because the crimes are slightly different. But how could you give him less than these sentences? Everybody was there for him. I don't see how you could.

A fifth defendant's been charged in connection with the attack on Officer Michael Fanone, a 59-year-old guy from Virginia named Louis Snoots, who apparently can be seen in footage restraining finon as another rioter you know is using a stun gun on the back of his neck and so far four other people have been convicted and sentenced in the assault of finon give me some insight into like why are they getting these guys now this is a long time after the event is it the online sleuths who are doing the video things i mean how how how did they get Louis Snoots? I was in Geneva when this happened, and I'm not up on snoots. But these online sleuths have been incredible.

So let me ask you about one other thing. So Joe Biggs called into Alex Jones and said that he basically fully expected that Donald Trump would pardon him. And we have Ron DeSantis, a presidential candidate who is out condemning what he calls the excessive sentences given to members of the Proud Boy, and at least hinting that he would look at the possibility of commuting the sentences or issuing pardons. How does it play in that you have this political world out there where they walk out of the courtroom facing these just massively devastating sentences, but also with the hope that Donald Trump might just wipe it all away. That creates a very unusual dynamic, doesn't it?

Yes. Dominic Pizzola, the guy that busted out the two windows, the first, very first windows and allowed the first rioters to come in. He apparently cried at sentencing and tried to show remorse. And then he got 10 years, which was 10 years below what the government was asking, 20 years. It's still a long sentence. It's still a long sentence. But on the way out of the courtroom, yelled Trump won after crying and trying to show remorse and all of this. So I think everyone realizes that if a Republican wins, that's their ticket out of here. In fairness, these are long sentences. There was an interesting thing this morning, well, actually last night, Norm Pattis,

who's the lawyer for Biggs and for Zach Real, two of these defendants at this point, disclosed what the plea offers were to these guys on the eve of trial, before they went to trial, what they were offered. Had they pled guilty before trial, they had an opportunity to get sentences that would have been half to, in one case at least, almost, well, a third of what they ended up getting. What he's going to argue on appeal is that this is a sort of an unconstitutional tax on asserting your right to go to trial. Now, it is dramatic, and a lot of criminal defense lawyers have complained about this for a long time. And in fact, I think when the sentencing guidelines took effect, the number of trials went down because the pressure to plead became more and more enormous.

And there's something to that. At the same time, these sentences were way below the guidelines. As big as they are, they are five to 15 years below the bottom of the guidelines, and they are 10 to 16 years below what the government sought. So, I don't know, it sort of works both ways. May I add something here? Please. Two things. One is, you know, when the Oath Keepers were sentenced, the 18 years that Stuart Rhodes got sounded like a big number. The government is appealing that. are big and yet they're way below the guidelines will not be lost on the U.S. Attorney's Office and query whether they will go to the D.C. Circuit and say, we should have gotten more. The second point is that the tax on the constitutional right to go to trial is very real, but it's a systemic issue. It doesn't affect these guys any more than it affects anybody else who feels pressured into pleading because if you don't get that credit and the guidelines for saving the government the time and expense of trial, you will serve more time. And that is a legitimate matter of dispute between prosecutors and the defense bar. And it's one in which I think there's a lot of reason to be skeptical of the current state of the law, but it's by no means unique to these guys, nor is this, I think, an especially dramatic example of it.

It's just an organic feature of life under the sentencing guidelines where if you force the government to go to trial, you're in a different category from people who plead out and negotiate a sentencing guidelines range. So, Roger, thank you very much for joining us today. Thank you. So there's so much other stuff going on. I don't want to have it long. I mean, E. Gene Carroll case, a federal judge on Wednesday ruled that E. Gene Carroll had already proved that Trump had defamed her back in May. So he basically just, you know, said, that's the finding.

You've been defamed. Now the jury's going to decide what the awards are, right? So the only matter left to decide is how much money. And that trial is scheduled for January. So it seems like Trump has just rolled over on that particular case. I mean, he's just taken the L, right? Yeah, I think that's right. I think, you know, for Trump, the important thing about that case is, you know, simply the amount of money that it's going to cost him. He's already taken whatever reputational damage he's going to take from what's effectively a civil rape charge, although, you know, it presents as a defamation charge, but it's effectively liability for raping somebody and then lying about it. And I'm old enough to remember when that would have been a big political issue.

Yeah, I am old enough to remember that too. And I think we should, you know, just as we are also old enough to remember when terrorizing election workers would have been a big deal. And also old enough to remember when running a scam university or paying off a porn star would have been a big deal. Would have been a thing. Right. I think we all just kind of have to remember that just because they're not a thing anymore that anybody cares about doesn't mean they're not objectively important. The functional question for Trump in the E. Jean Carroll case is simply how much money it's going to cost, right? In these other cases, there's a question of, is he going to do prison time? Is he going to have criminal convictions? The E. Jean Carroll case is just money.

And I think the reputational damage that the facts in the case are going to cause him, to the extent it's an issue, it's already caused him. And it's kind of priced in. For E. Jean Carroll, however, it is a big deal because there is a significant measure of vindication in that. And that's an independent good, in my view, that somebody who has been grievously wronged and then lied about, physically assaulted and then lied about in public, actually gets her day in court and gets the judgment that says, okay, that's an independently important thing, whatever it does to Donald Trump. For Trump, it's just

money. Yeah, for Trump, rape is just the cost of doing business now. He'll just write out a check or not write out a check. Because when you're a billionaire celebrity, they apparently let you rape people as long as you paid the money, I guess. I don't know. He even says it. When you're a star, they let you do it. Yeah. So separately, another case out there, that civil fraud trial. Again, a civil case.

New York judge rejects Trump's request to delay the civil fraud trial. This is the case brought by New York's Attorney General Letitia James, who is seeking $250 million, accusing Trump and his co-defendants of submitting years of fraudulent financial statements to get better tax benefits and loan terms for the Trump organization. I don't know, that's the kind of fraud that would probably get you or I thrown in jail, but it's a civil case when you're Donald Trump. So the judge just slam dunked Trump's attempted delay, saying that his request for delay was without merit. And that trial is scheduled currently for October 2nd. October 2nd. That's less than a month. So,

I mean, the calendar is really getting jammed, isn't it? The calendar is jammed. The civil trials, of course, don't require his personal presence. So he can kind of hang out and campaign at Mar-a-Lago. But the Letitia James civil trial in New York does have implications beyond money because it seeks, among other things, all kinds of limits on the activities of the Trump organization and who's allowed to run that business. And, you know, I have not followed it in particular depth, but, you know, first of all, the volume of money in question is enormous. You know, it's measured in the percentages of billions of dollars rather than, you know, the you defamed me kind of millions of

dollars thing. But secondly, and more importantly, I believe it asks for essentially, you know, the removal of Trump family members from authority positions within the organization and essentially the dissolution of the Trump organization as we currently understand it. And so that, I think, has some broader implications than simply the, you know, individual liability questions. All right, let's talk about Georgia. You were listening in on the hearing yesterday. So, Ben, what happened? Yeah, so this is really interesting. So, you're going to have to bear with me as I explain the severance issue here, because who's getting severed from who is really interesting,

if a little Byzantine. So you have 19 co-defendants, one of whom is Donald Trump. Some of them, like Trump, want to push this trial off as long as possible. Two of them, the estimable Kenneth Chesborough of your native state of Wisconsin, and the estimable Sidney Powell of Texas, have invoked their rights to a speedy trial. And so the first question is, does this force everybody to have a speedy trial? And speedy means October 23rd, right? Really soon. So their trial is scheduled for October 23rd. The first question is, do they get lopped off from the other 19? The second question, which was what was before the court yesterday, is whether they get lopped off from each other or whether they have to go to trial together. The judge answered the latter question, so they are going to trial together. They wanted to be separated from each other. But the first

question has not been answered yet. There is an outside possibility, and I think it's pretty remote, but there's an outside possibility that you could have a trial of the whole group as early as October. The whole group? The whole group, all 19. They have not been severed from that yet. And so I think that's going to happen next week because I don't think anybody thinks that we're really going to have a trial of Donald Trump as early as this October. But formally, that has not been ruled out yet. The judge yesterday, by the way, this judge, Judge McAfee, who is a new judge on the Fulton County District Court, seems really impressive. He's organized. He's thoughtful.

And he seems to be in under pretty difficult circumstances running a pretty good process. I urge people, you know, it's Fulton County District Court, so you can actually just subscribe to the guy's YouTube page and watch all the hearings. You can also see them all on Lawfare. Yeah, he's got a YouTube page, and that's where, you know, where all the hearings are. It's great TV, by the way. So one question is, are they going to sever these two from the other 19? The answer to that is almost certainly yes, but they haven't done it yet. whether this case is going to get removed from this Fulton County District Court entirely, at least on a temporary basis, and heard in federal court in Atlanta. And that question was argued last week by Mark Meadows and his attorneys in federal court in Georgia. And so

there's a lot of interesting action, both on the severance question and on the removal question. And one thing that could possibly happen, I think it's really unlikely, but it's not impossible, is if the federal court denies removal and the state court decides not to sever these cases, you could theoretically have a trial really quickly. You know, I don't think it could happen by October, but it could happen much faster than people think. I think for a bunch of reasons, I think it's very unlikely to happen that way, but it's not impossible. Okay, so just basically moments before we began recording this, you posted on Lawfare an article that you wrote with Anna Bauer and Alan Rosenstein. In Fulton County, fear not removal. You write the issue is complicated,

but removal of the Fulton County case to federal court would not be a disaster, and it's probably the right answer. Now, this is a little bit contrarian because there are a lot of media voices out there, a lot of pundits who are, you know, saying this is, you know, a right to hear many pundits discuss the question of Mark Meadows' motion to remove the Fulton County election interference case to federal court. You would think it posed a straightforward question. A trio of analysts in just security, right, even though the legal hurdle is low, the law is favorable to federal officers, Meadows faces a seemingly insurmountable barrier. The Washington Post editorialized not to do it. So give me your take on this, because you're saying, you know, slow down. This is not the worst thing in the world. Why not? Yeah, I actually think removal

might be a good thing. So explain yourself. Let me give you both the theoretical and the practical reason. The theoretical reason is... Now, by the way, is this a removal of everything or just Mark Meadows' part of it? It's at least removal of the parts that involve people who were in federal office. So Meadows, Trump, Jeffrey Clark. Okay. But it may be that the whole case moves with those parts. That's a sort of uncertain question. So look, the standard of removal is if you're a federal officer and there is a remotely plausible federal defense, that defense needs to be heard in federal court. The theory behind that is you don't want states criminalizing the federal government's policies and then indicting the officers who carry it out. Now, nobody sane thinks that Donald Trump is immune or that Mark Meadows is going to be ultimately held to be immune from state

prosecution by federal immunity. The question is, who should decide that defense question? That defense motion is coming. And the question is whether you want that motion decided by a Fulton County court and then appealed up to the Georgia Supreme Court so that the Georgia Supreme Court is kind of the final word on that. And then it becomes a sort of mess after conviction, how you get federal review of that, or whether you want a clean federal review of that at the front end so that once you have a trial, you don't get to say, but wait a minute, he was immune under federal law. I think there's a pretty good argument that you want that federal review up front, and that's what removal is for. So that's the sort of theoretical basis. The practical basis is more simple, and I think ultimately what motivates me, which is,

you know, Fulton County District Court is a bit of a docket mess. It has a huge backlog. It's moving these RICO cases incredibly slowly. There's a long-running RICO trial that has been, this is the Young Slime Life trial called YSL, which has been in jury selection for eight months. So this would be the old slime life. Yes, exactly. Old slime life. The Young Slime Life, and then we'll have old slime life. Okay. to move this case in an efficient fashion. And federal courts are really good at highly complicated cases. That's kind of their specialty. And so there's a good argument from my point of

view in let's deal with the federal issues up front rather than sort of pushing them to the back. And let's do it in the court that has the highest competence. I don't mean to snot on the Fulton County courts. They've been doing a good job in this case so far. This is a heck of a case. And if litigating it in federal court can make it a little bit more efficient, I think that's probably a good idea. I also think a lot of people's, and this is where I'll be critical of some of the commentariat, also think a lot of people's, and this is where I'll be critical of some of the commentariat, I think a lot of the commentariat have had their knees jerk by the fact that Mark Meadows moved for this and Donald Trump will move for it. And there's something

obnoxious to them about a motion that the defendants are proposing that Fannie Willis is opposing, their knees kind of jerk in her direction. And I think if you look at it instead from the point of view of what's the right answer from a judicial economy point of view, removal actually makes a lot of sense. Okay. No, I do think that there's a little bit of a little bit of knee-jerk thing. Now, of course, one of the big downsides of removal to federal court, though, would be that we would not get this televised version, would we? We would not see it on YouTube. That is the big downside. That's a big one, because I'm kind of looking forward to the show, I have to admit. You sold me on the show, and now you're taking it away from me. Okay, so wait, I want to give it

back, though. So here's what I think should happen. You remove the case to resolve the federal issues. You resolve the federal issues with a single motion to dismiss. Donald Trump, Mark Meadows files their motion for supremacy clause immunity. You litigate that. It's a complicated motion to litigate, but it's not the trial. And then, well, if they prevail on that, the case gets dismissed. Well, I don't think that's going to happen. But okay, if they don't prevail on that, the federal interest is gone, and the case then gets remanded back to Fulton County. So I think you can have your cake and eat it too. You can let them win on removal and still get your televised trial in Fulton County. We'll see, because I want to watch it on TV. Okay, so this is a little bit unfair because I have to admit that I'm obsessed with what's happening in my home state here, and I don't want to put you on the spot about all of this, but the push by Republicans in the Wisconsin state legislature to impeach and remove a newly elected liberal Supreme Court justice before she has issued a single ruling is extraordinary,

both as a legal matter, but as a political matter. As a political matter, I have to say that my hair is on fire about the political malpractice involved in Republicans spending this much political capital on an issue of recusal involving redistricting, because this is going to be this massive firestorm. in where Republicans in Congress and in legislatures around the country have really sort of internalized the idea now that it is part of their mission or that they are compelled or obliged to interfere in the criminal justice system, the legal system, to obstruct justice, to defund prosecutors, to remove judges who they disagree with. This feels like we're in a new era now where, in fact, the lines between the various branches of government are eroding and we can no longer talk about whether we're talking about the sentencing of the Proud Boys or what's going to happen with the Wisconsin Supreme Court, or whether or not Georgia's

legislature is going to kneecap Fannie Willis. I mean, the politicization of all of this, it feels to me like it is accelerating. So I wanted to get your take on all of this. So I will start by saying that literally everything I know about this subject, I know from listening to Hugh and Will Salatan discuss it the other day on the podcast, it is appalling to have a pretextual impeachment for no reason other than to prevent a duly elected, and I hate judicial elections, but them's the system in Wisconsin, a duly elected justice from ruling on a particular case, right? It's not actually based on anything she really did, although there is some pretext for it. It's based on a fear of what she will do in a particular case. So this is

bad in every conceivable way that a legislative response to the judiciary can be bad. It's almost the nightmare scenario. The nightmare scenario at the federal level is impeaching justices for the substance of their rulings, right? That's what the old Pickering impeachment was about in the early days of the republic. This is worse than that. This is the impeaching a justice for the anticipated substance of her ruling. So it's really, really, really bad. The only thing you can say, I think, in defense of it is that it is so bad that it amounts to, as you say, political malpractice and will kind of trigger a backlash that is itself a bit of a spanking. You know Wisconsin politics so much better than I do that I leave it to you to tell me whether that's likely or whether that's wishful thinking. And actually, Robin Voss is being clever here because he can get away with this. And so I want to turn the question around to you and say, all right, assume it triggers a backlash. What does that backlash look like? And how does it come to be the spanking for Robin Voss that he so

dearly, dearly needs? This is the key question. I have to tell you, I am getting mixed messages from folks in Madison about whether or not this is really going to happen. Obviously, if you read the New York Times story, it certainly looks like they are determined to do this. No Republican is pushing back. You have Scott Walker saying that the assembly is obligated to impeach and remove her. There are other Republicans who are privately saying this would be a disaster. And as I've said before, and I get some pushback on this, Robin Voss is a smart politician. Okay, now he has a deep sense of entitlement to his gerrymandered majority. This is his precious,

and he is prepared to spend a lot of political capital to protect it. The question is, at what point does the price tag become too high, too much political capital? And that goes to your question. How big is the backlash? If Robin Voss and the donor class, which includes the big business organizations, Wisconsin know, Wisconsin manufacturers and commerce and the realtors association. If they realize, if they come to think that if they do this, that they will be swamped with outside money, that they will have, you know, tens of millions of dollars pouring into Wisconsin is part of the backlash. They might rethink this, go, okay, we really, really want this supermajority. We don't want her to rule on this, but the price tag is just too high. That will get

their attention. And there's every reason to believe that that will happen because, first of all, the state Democrats who amazingly have gotten their act together here in Wisconsin, really reversal of fortunes here in Wisconsin, very, very smart chairman, Ben Wickler. They're mobilizing as if this is a statewide campaign. They're going to launch a $4 million ad campaign targeting this effort to essentially negate more than a million Wisconsin votes. These ads, Ben, write themselves. This is shooting fish in a barrel for the Democrats. They have a plan. The Republicans, as far as I can tell, have no counter plan other than we're going to pull this off. We're going to ram this through and then we're just going to keep our heads down. Well,

you know, if this results, for example, I'm not going to get too deep into it again, but if this results in another do-over special election next spring, it will once again be the most expensive judicial election in American history. And the question is, do Republicans really want that? Do they really want, you know, another hundred million dollar campaign that will center on the issue of abortion? Because even though they're going to impeach her because of her refusal to recuse on redistricting, you know, her removal from the bench has tremendous implications for the future of Wisconsin's abortion ban. So that's going to be back on the ballot. So this is one of those moments where it's the id versus the superego. Will they be able to control themselves?

The other question is, I can certainly imagine somebody like Robin Voss making the decision, I really, really want to do this, but no, it's too dangerous. But finding himself unable to control the fire that they lit, because you and I have watched this before, these ideas may start small, but then they catch fire in the base, you know, it's like, you know, pouring kerosene on all of this. And if the base begins to demand this as a litmus test, will they be able to say no? Now, again, I've been told by members of the state legislature, Charlie, 100%, there is no chance. We are not this stupid. We are not going to blow ourselves up in this way. This is just a bluff. I've also been told by

people who say, look, there's no way to stop this train. There's no way. You've seen this before. Wisconsin Republicans have shown a willingness to break norms if they feel they have to. Remember after the 2018 election, after Scott Walker was defeated, they rushed into special session to change all the powers of the governor and things like that. You know, they weren't embarrassed. They weren't ashamed to do that. And they didn't pay that much of a price for it. So I don't know, but it's awfully fascinating. It would be, it would be a dramatic escalation in a state that is already on a knife's edge. But it's hard to explain because things are so intense here, but this would take it to a whole different level. This would take it back to Act 10 level of political partisan division and passion. And I'm not sure that when Robin Voss, the Speaker of the State Assembly, floated this idea that he really had thought out exactly what the price tag would be. That's a long answer to basically say, I don't know, but damn, it's interesting. Yeah, it seems to me that's where the rub of the question is,

because realistically in a state where you have a supermajority reinforced by a legislative filibuster, and you're controlling by the impeachment the ability of the Supreme Court to interfere with that legislative majority, you have a locked-in power base. I don't think realistically there's a legal response to it. The only response is political. And so the question becomes, how high can you make the political cost? Yeah, I agree with you. There will be legal challenges. I mean, I can conceive a state legal challenge. I expect there will be one. I don't know whether, you know, how it will be resolved by a Supreme Court that will be completely deadlocked. Conceivably, there might be a, you know, a federal action based on the

First Amendment, you know, citing Justice Scalia's ruling and, you know, the Republican Party of Minnesota versus, was it White, that said that, you know, judicial candidates had a constitutional right to take positions on political issues. I don't know whether that's going to go on, but my sense is what you just said, that ultimately this will have to be decided politically. It will be decided by the ballot box. And even though it already was in some ways in April, when they elected Janet Protusewitz, they're going to have to do decided politically. It will be decided by the ballot box. And even though it already was in some ways in April, when they elected Janet Protusewitz, they're going to have to do it again. And then they're going to have to do it again and again and again. And we're seeing the willingness of Republicans in Wisconsin and around the country to overturn elections or ignore elections,

I think, on the upswing. I'm just imagining the ads that are going to run and the reaction. People went through this election and she won by more than 11 points in a state that is usually decided by less than one point. She won by more than 200,000 votes in a state where statewide elections are usually decided by 20,000 votes. And for Robin Voss to wipe that away with an assembly vote. Careful what you wish for again. The Jacobin wing of the Republican Party.

Yeah, absolutely. Ben Wittes, thank you so much for joining me again. Thank you, Charlie. I appreciate it. And thank you all for listening to this episode of The Trump Trials. We will be back tomorrow. We'll do this all over again. The Bullwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown. Thanks for watching!