The Bulwark Podcast - Trump’s Bogus Defenses

Episode Date: August 3, 2023

Trump defenders are arguing that the charges in the latest indictment infringe on his free speech rights, but using words to carry out crimes is not protected by the First Amendment. Plus, Pence gets a backbone, and the tough new judge on the scene. Ben Wittes is back with Charlie Sykes for The Trump Trials. show notes: https://www.lawfaremedia.org/article/the-big-one-trump-is-indicted-for-jan.-6  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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for so long. The third indictment of Donald Trump, depending on how you are keeping score. Donald Trump has now been charged. I want you to just mark this down. Has now been charged with 78 felony counts. Later today, maybe this has already happened by the time you listen to this podcast, Donald Trump will do his third perp walk in Washington, D.C., where he faces the conspiracy and obstruction charges from Jack Smith. I have to

admit that I have spent the morning listening to podcasts and reading all sorts of, I would say, Trump world and anti-anti-Trump efforts to cope with this. And at the moment, I have to confess that I am feeling dumber, which is why I am looking forward to today's episode of The Trump Trials with our good friend from Lawfare, Ben Wittes. Good morning, Ben. How are you? I am exhausted, but otherwise fine. How are you? Well, I am also a little bit exhausted and a little bit frustrated by some of the commentary, some of which seems to me to be both disingenuous and

just flat out wrong. So hopefully we can correct the record here. So let's just start going through some of the, I think, top line issues here. Number one, and I see that Adam Kinzinger, who's going to be on the podcast tomorrow, was disappointed that Jack Smith did not bring specific charges related to the incitement of violence. So let's talk about that. Why not bring charges against Donald Trump for his role in inciting the violence of January 6th, as opposed to what he actually did in the indictment, which was to say that Donald Trump exploited, Donald Trump and his co-conspirators exploited the violence. So give me your sense of that choice. The answer is a Supreme Court case from the late 1960s called Brandenburg v. Ohio. And Brandenburg lays out a very rigorous standard for

what constitutes incitement or what can constitute incitement constitutionally. And basically, it says that unless an action is of a type that is intended to create and is of a type that would tend to create imminent lawless action, you cannot prosecute it as an incitement. It's protected speech. And this is a very, very high bar. So, what Jack Smith is trying to do here is say, all right, how do I include the speech? That is, make the speech and the violence that it precipitated a feature of the indictment, we're going to put on evidence about it, but not run across this need to prove that it meets the standard of Brandenburg? And the answer is don't charge it as an incitement. Include it as part of this larger conspiracy. And this is the way that Smith deals with all of these problems that you might otherwise have legal issues with. There are some involving other

areas of law as well, like seditious conspiracy. Would be hard to prove seditious conspiracy. Maybe he could do it, but it would be hard. Instead, you simply describe the conspiracy that you can prove in language that is evocative of, appropriately so, in my view, the fact that this was a conspiracy to prevent the sovereign exercise of the power of the United States, that is to overthrow the constitutional order. And so he does the same thing with the incitement issue. I actually disagree with Kinzinger. I think it's a very clever and elegant way to handle it. It allows him to rely on laws that are much better trodden territory. They have many fewer legal issues that he's going to have to litigate, and it's going to be a stronger case as a result. So I actually, with all due respect to Adam Kinzinger, I think he's got this one wrong. Okay, so in the Lawfare blog, you wrote, it is a powerful case, assuming that Smith can prove it in court, and it's one of which the

former president should be very afraid. But that is not the take we're getting from folks like National Review and the Wall Street Journal editorial board and much of Trump world and actually much of anti-anti-Trump world who are saying that, look, this still is about free speech. Yes, President Trump engaged in disinformation, but disinformation is not a crime. There are also various other defenses being floated out that perhaps he sincerely did believe that he won the election and that if he did sincerely believe that he won the election, and that if he did sincerely believe that he won the election, that that's a huge blow to this case. And then, of course, there is a third defense out there that he's simply going to blame his lawyers, that he was relying on counsel. So I don't know where you want to start with all of this. Let's talk about the

free speech. And this is something that we're hearing from Trump's lawyers, that you can't criminally charge the president for, you know, saying things about the election that he sincerely believed that he lost. All right, so let's start with the free speech one, because it's so dumb that you can dismiss it in a sentence. You know, Charlie, if I tell you I'm going to kill you, that is speech. It is not constitutionally protected speech, right? Most threats are speech, and they're all expressive. They're not protected by the First Amendment. There's another kind of speech that isn't protected by the First Amendment, and it's called making an agreement to commit a crime. We call them conspiracies. I mean, we actually have to communicate in order to make an agreement to commit a crime.

Usually the way you do that communication is you talk about it. When you are making an agreement to commit a crime, if you then take an overt act in support of that agreement, that is not protected speech. All conspiracies are speech. All conspiracies, or at least some kind of otherwise protected expression. All threats are expressions. All demands, extortions are expressions, right?

So the question isn't, did Donald Trump speak? The question is, did he engage in protected speech or did he speak in the form of committing a crime? There are ways that you can speak that constitute the commission of a crime. Fraud, for example, all speech, right? You know, I trick you into doing something. And here, the government is alleging three distinct conspiracies, one to violate rights by not counting the votes, one to obstruct a federal proceeding, and one to defraud the United States. It is certainly true that all of these conspiracies were done by people talking to each other. That does not make them free speech. It is also true that one of the overt acts in support of these conspiracies was the president giving a speech in which he urged the crowd to violence, and that some of the other overt acts involve how he exploited the

violence that that speech gave. You can't simply say, well, I was talking, therefore it can't have been part of a conspiracy. So that defense is just dumb. And I don't know if the president's lawyers will not make it in court, but it will not have legs in court at any level. Well, there's also this kind of an inherent flaw in the argument that, well, Trump may have sincerely believed that he won the election. Of course, the burden of proof is on Jack Smith, but Philip Rotner has a great piece in the bulwark. He said, you know, let's start with the factual problem of Trump proving at trial he really sincerely believed he won the election. How's he going to do that?

Is he going to testify? Is he going to take this in? I think that's unlikely. But I think that this point that you're making about the conspiracy and the way the conspiracy statutes are written is important. He says, think, for example, of a conspiracy to kidnap and hold a person for ransom. In furtherance of the scheme, the conspirators locate and rent a safe house. They stock up to hold a hostage for a protracted period of time.

They buy ski masks, restraints, and a telephone voice changer, and they carefully observe the comings and goings in the target area. Not one of those acts taken in furtherance of the conspiracy is standing alone, a crime, but individually and taken together, those acts are powerful evidence of a criminal conspiracy. So it is with Trump that many of the specific acts themselves are not

crimes, but they're powerful evidence of the criminal conspiracy alleged in the indictment. Exactly. And it's not even, you can go farther than that. You can say some overt acts in a conspiracy can be otherwise constitutionally protected. So for example, if you say to me, hey, Ben, I've got this great money-making scheme. Let's convince a whole bunch of people to invest in bulwark coin, our new cryptocurrency, and then you and I'll short the market, right? And so in support of this loony idea, I go out and give a speech about Bulwark coin and about how unstable conventional currencies are, and everybody should invest in Bulwark coin. It's got a little

picture of Sarah Longwell on it. It's a great thing. That speech is constitutionally protected. But if you do it as part of a criminal conspiracy scheme to defraud people of their money, the fact that the speech itself is constitutionally protected does not mean you cannot be charged with fraud. I want to address one other thing related to the not as stupid claim that the president, the former president, sincerely may have believed this. This is not a stupid point. It is an evidentiary point. And you can see that Jack Smith takes it extremely seriously in the indictment because he spends pages upon pages pointing out evidence that he is going to present that shows that Trump did not sincerely believe this. So I think this falls into the category of,

it may be a plausible defense under certain circumstances, though there are some problems with it. There's such a thing as willful blindness. But Jack Smith has anticipated this defense and means to bombard the jury with evidence that Trump knew that he was lying. And so it's a potentially plausible defense, and it's one that the prosecution is expecting. Yeah. And as a slight digression, I mean, Will Salatan has made the point that in some ways, it's worse if Trump really did believe he won the election, because then the man who's the president of the United States was completely deluded. But to beat this horse just a little bit, going back to Phil Rotner's piece, even a sincere, deeply held belief the election had been stolen would not, for instance, give Trump license to

participate in a fake electors scheme. Correct. You know, he says, think of it this way. You may be absolutely convinced that a charge on your credit card is not yours, but you cannot then hack into the bank server to remove it. You may know with all your heart that your neighbor took your Rolex, but you can't break into his house in the middle of the night to retrieve it. Just ask O.J. Simpson about that one. You may hold it as an article of near religious faith that the government is tyrannical, but you cannot blow up the federal building, believing that you have a legitimate gripe, even if you're right about it, which obviously Trump is not, does not give you license to commit crimes. And I think, again, this is, this is the point that, you know, the speech can still be part of a conspiracy. The sincere belief, which I think is somewhat far-fetched,

but plausible, does not give you license to engage in fake electors, etc., all of the other things that are alleged in this indictment. That's exactly right. And in addition, it assumes a factual premise that Jack Smith says he will prove to 12 jurors beyond a reasonable doubt is untrue. So what about the defense that, well, I was just following my lawyer's advice, which is being floated. By the way, let me just play a little bit of Mike Pence, who is, I don't know what's going on with Mike Pence. Maybe once every six months or so, he wakes up and he realizes, hey, I actually have a spine here, but he's been much more full-throated. But let me just play something that Mike Pence said yesterday about all of this, and this is a longer soundbite, but he does talk about this gaggle of crackpot

lawyers who are surrounding the president, which is certainly part of the story and part of the indictment. Let's play that. Let's be clear on this point. It wasn't just that they asked for a pause. The president specifically asked me, and his gaggle of crackpot lawyers asked me to literally reject votes, which would have resulted in the issue being turned over to the House of Representatives and literally chaos would have ensued. So, Martha, people can read the indictment. And frankly, I've said before, I had hoped it had not come to this point. You know, I don't know if the government can meet the standard, the burden of proof beyond reasonable doubt for criminal charges. But the American people deserve to know that President Trump and his advisers didn't just ask me to pause.

They asked me to reject votes, return votes, essentially to overturn the election and to keep faith with the oath that I made to the American people and to Almighty God. I rejected that out of hand and I did my duty that day. Okay, I want to come back to the lawyers. What is your take on what's going on with Mike Pence? Because that just strikes me as quite a bit more forceful than he's been before on this. Yeah, I mean, I suppose one could say he was waiting for the Justice Department to put it on paper so they add a text with which to work. My view of Mike Pence is that he, first of all, I don't think it was defensible for him to refuse to testify to the January 6th committee. I think his resistance to telling the story that he knows to be true is hard to understand for me. He's clearly making

calculations about his political viability, and yet I honor what he did that day and the fortitude with which he did it. And I respect him more every time he's willing to talk about it candidly and less every time he is not willing to talk about it candidly, which does seem to vary by the day. He clearly is cooperating with this investigation, including turning over those contemporaneous notes, which again raised a lot of eyebrows that he obviously knew something was going on and therefore took these contemporaneous notes, which apparently he has shared with the special counsel and the grand jury.

He's going to be a major witness at this trial, won't he? He will, yes. One thing that he may be calculating is that it is good to be forced. And he can say, I shielded the president's confidences to the best of my abilities. I didn't share anything with Congress. And I successfully asserted executive privilege in dealing with the partisan January 6th committee. And when federal prosecutors came, I asserted the speech and debate privileges. I limited what they could talk about. But when ordered ultimately by a court to cooperate, I, of course, did my duty as a citizen. And, you know, it's not the path I would have chosen, but Trump. It's like, listen, I was just listening to these guys, and my lawyers were telling me

X, Y, and Z. Now, it turns out his lawyers were co-conspirators with people like Rudy Giuliani and Sidney Powell and various other wingnuts. But is that a plausible defense, that I was simply relying upon advice of counsel? So I think it's his best defense, particularly in combination with I sincerely believed stuff, right? So, I sincerely believed stuff partly because I was advised by counsel that we could challenge this, that there was lots of fraud. You know, the former mayor of New York, America's mayor, was saying all this stuff, and I believed him, and he was my lawyer. And,

you know, John Eastman is a great, famous law professor. I think that's his best argument. Here's why I don't think it will work. First of all, you know, he had a lot of other lawyers, too. And when you're actively disregarding the advice of counsel because you prefer the advice of other counsel because the crackpot counsel is saying what you want to hear, you're not really following the advice of lawyers. You're looking out over the crowd and you're picking your friends, right? That's a tricky thing, especially because the better lawyers that he had were all making the other arguments. Secondly, the Justice Department was advising him of the reality, right? And so, it's not just his personal lawyers or the White House counsel,

it's also the institution that he runs, the government, is telling him this is nonsense. And then there's the third problem, which is that he knows that one of these crackpot lawyers is crazy, Sidney Powell. He is told by the other lawyer, Eastman, that he's basically just winging it, and he's aware that Eastman knows that this argument would not prevail. And third, that he gives away in, I think, one of the most stunning revelations of the indictment that he says to Pence, you're too honest. That is an acknowledgement that he knows at some level he knows what the actual law is and so i do think this is his best defense it's the one i think in court they will you know they're going to throw a lot of spaghetti at the wall and you're going to see a lot of you know pardon me bullshit motions but when they actually have to defend the case in front of a jury,

the attack on the evidence is going to be, hey, it's a chaotic situation. Some of his lawyers were telling him this, some of them were telling them this, and it can't be a crime to follow lawyer A's advice instead of lawyer B's advice. I think that's going to be the defense that they use in court. I don't believe that at the end of the day, you're going to convince a DC jury of that. Speaking of lawyers and his own lawyers released the Department of Justice, Bill Barr gave a rather, the former attorney general, gave a rather remarkable interview to Caitlin Collins on CNN last night where he said a lot of things, including this. Let's play this clip from Bill Barr. You read through the indictment and his behavior in that indictment, and it's nauseating. It's despicable behavior. Whether it's criminal or not,

someone who engaged in that kind of bullying about a process that is fundamental to our system and to our self-government shouldn't be anywhere near the Oval Office. Interesting. I think he's all out of bleeps to give. He also suggests that he thinks that Jack Smith has a lot more evidence that the 45-page indictment was kind of spare, and he thinks he's got a lot more in his back pocket. What do you think? Let me come back to that. But I want to say about Bill Barr, this activity, I agree with everything he said, it's nauseating. And I don't know that it's more nauseating than the activity in volume two of the Mueller report that Bill Barr bent over backwards to explain was just because he was upset and was, you know,

to make excuses for. And so, I'm perplexed by Bill Barr having suddenly discovered that Trump's nauseating activity is nauseating and criminal. I will just say to Bill Barr, welcome to the fight. I'm bewildered by Bill Barr's behavior through this whole set of episodes. But one thing Bill Barr is, by the way, is a very shrewd lawyer, and he's correctly reading the indictment as holding back a great deal. It's become common in this era to talk about speaking indictments. This is a speaking indictment in one sense, but it is not a dump-everything-you've-got-out-there-to-tell-a-story indictment. It tells the story in a fairly spare way that suggests that, you know, there are mountains and numbers of witnesses available to support specific sentences. So, for example, there are a lot of White House officials, campaign officials, who are going to be called to testify. I think it's paragraph 115 where Jack Smith describes a conversation between

Kevin McCarthy and Donald Trump. I don't know how you have that in an indictment unless you're prepared to call Kevin McCarthy, unless it was on speakerphone and somebody else can testify that they were in the room when it was said. I think if you go through the indictment with the question in your mind, what would they need to have in order to include this sentence and who would be able to testify to it? Because remember, you got to have a witness in order to get material in the record, right? So, what kind of material do you have and who is going to testify to it to get it into the record? If you go through the indictment with that question, you realize that we're talking about a huge number of witnesses, a huge volume of material, and, you know, it's going to be a long

trial with a lot that we're going to learn. Let's come back to the trial, but you're right, there's some really provocative questions there, including the role of Mark Meadows. Mark Meadows, the former chief of staff who was in the middle of everything, is not mentioned in this indictment. And we don't know whether he's cooperating. We don't know what he's turned over, but that's a question. And secondly, what about the co-conspirators? Let's talk about that for a moment. Why do you think Jack Smith has not indicted them? And do you think that he will? Well, so the easy question is whether he will.

And the answer to that is yes. Co-conspirator indictments are coming. Whether they come in the form of indictments or come in the form of plea agreements is a more complicated question, right? Whether he flips them. Yeah, exactly. So, by the way, this is exactly the opposite of the way Leon Jaworski handled the Watergate indictments. Remember, in the Watergate indictments, you had the Haldeman indictment that named all the president's men and named Nixon as an unindicted co-conspirator, but didn't indict Nixon, right? And they were saving Nixon until after he left office when, of course, Ford preempted

it by pardoning him. Here, you name the president only and none of the president's men, you list them as unindicted co-conspirators. It's exactly the opposite of what Jaworski did. I think the reason for it is that there's a premium on getting the Trump case done. That's a great point. Because of the electoral calendar, because once you go past a certain date, it really does start to look difficult from an electoral calendar point of view. And so getting it done relatively quickly is important. You have lots of time on Jeffrey Clark and John Eastman and Rudy Giuliani. Clark. You are having a conversation with him yesterday or today that says,

there is a bone-crushing draft indictment related to you. You need to have a serious conversation with your soul about whether you want to be on the receiving end of that indictment or whether you want to go in and cooperate. And six defense teams are having those conversations right now with those six co-defendants. And I don't know how many of them are going to decide to go in and cooperate, but I'd be actually surprised if the answer were none. If the answer is none, there will be a subsequent indictment that names them all or maybe separate indictments that name them all. Well, there's another card out there as well. The Jack Smith flashed last week with the superseding indictment within Mar-a-Lago basically signaling, hey,

once I've come down with indictments, does not mean that I am done, does not mean that I cannot add charges or add new information. I think we learned something about the way he goes about doing his business, didn't we? That this may not be the final word, and not just involving the co-conspirators, but involving Trump himself. That's right. I mean, I do think in this case, there is a speed argument that may, with respect to Trump, militate against adding additional charges. So if you're Jack Smith and you really want to bring this case to trial before the election, keeping things simple is important. This seems to be the big question now, is will he be able to bring this to trial before the election? When will there be a trial? How long will it last? You mentioned before,

this is going to be a long trial. I think people need to understand that we're not talking about a few days. How long does the trial of the U.S. versus Donald J. Trump go, presuming that it goes sometime next year? I don't know the answer to that question, but it's certainly weeks, and it may be longer than that. So remember, you have, is it seven states, six states, that are specifically listed as they're going to tell a story about what happened in these states. That means you have to call witnesses from each of

those states. There is a huge amount of material about what happened in Georgia. Every single sentence in this requires somebody to testify to speak to. And then you have the Mike Pence saga, right? There's like five different threads of narrative here. Each of them is going to require many witnesses to flesh out. This is a complex criminal matter that the government is going to be extremely careful to do right. And if you, again, comb through this indictment with the question of whom would you need to testify about it, it's a lot of witnesses. This could be weeks. This could be weeks or months. Months. So this is only one of the cases against Donald Trump. I've said this before, but I keep getting struck by the fact that, you know, being a criminal defendant is very time consuming, isn't it?

The calendar becomes very complicated for someone who is running for president at the same time that they are a criminal defendant. The judges have so far not shown much enthusiasm about saying, yeah, you're too busy to show up to answer these felony charges. Not even Eileen Cannon would postpone the Mar-a-Lago document case past the election. So what does Donald Trump's 2024 look like right now? So I've been trying to map this out in my head, right? Right now we have a criminal trial scheduled for March in New York and another one scheduled for May in Florida. Now, let's assume both of those are movable.

The New York trial is not the biggest, most complicated litigation in the world, but it's going to be time-consuming. The Mar-a-Lago case is not as complicated as this, but will take a lot of time as well. I'm skeptical that the Mar-a-Lago case will actually go to trial when it's scheduled because, again, the classified material there that's an added complexity. Here you have, it's a mega complicated case. There's no classified information. It's not obvious to me what would create major delays in this case. So I think, you know, if Judge Chutkin wants to bring it to trial in a timely way, I don't see why she can't do it. But once you're in court presenting this case, it is weeks and weeks of litigation. And then, of course, there's Fannie Willis in Georgia. That case hasn't

happened yet. But I think you could have as many as four trials in 2024. In the midst of a presidential campaign. Right. And these are cases that, unlike civil litigation, actually require that the defendant be in the room. Okay, so he has to show up. He has to show up. Really? So you could have a six-week trial in Washington, D.C., where Donald Trump's presence is required? were a federal judge, would you let a criminal defendant in your court absent himself from his own criminal trial? Criminal defendants have to show up for their trials. And remember,

you cannot give speeches, right? There's no cameras in these courtrooms, which is why you have these incredible lines to get in. You don't think that this will be televised? A lot of chatter about that? I think it's highly unlikely. Not highly unlikely. Will not happen. Federal rules do not allow cameras in trial courts. Should they for this case? No. It's too much capacity for witness intimidation, for intimidation of judges and court officers. There's a good argument for it in some state proceedings, and I think it's a great thing in federal appeals. But trial courts, particularly in a situation like this, could you imagine being a witness who maybe was a low-level White House staffer or somebody who worked at Mar-a-Lago and took the courageous step of complying with a federal law enforcement order, and all of a sudden you're going to spend hours and hours and hours on television so that everybody can threaten you. I think trial court coverage is best left to the written record.

We haven't talked about the judge yet. It's very, very interesting in terms of, I was telling somebody yesterday that in many ways, this is Donald Trump's worst nightmare in the sense that he's got a very, very highly respected judge. She was confirmed 95 to nothing. But it is a black woman immigrant from Jamaica who has a strong track record of calling bullshit on Donald Trump's legal arguments and has been a tough sentencer, even though she is a former public defender nominated by Barack Obama. She's been handing out some stiff sentences in the January 6th cases. And we certainly know how Donald Trump tries to weaponize attacks against prosecutors who are African-American or Jamaican-American. So, I mean, this is going to be lit. But so just talk to me

about the judge and her reputation and the way you think that she's going to handle this case. I think she's a very interesting draw and a very interesting sort of reflection of the difference between the D.C. bench and the South Florida bench. Tanya Chutkin was a public defender for many years in the district on the local side. And in that sense, I think has a sensibility that any criminal defendant would like in a judge. She is a no-nonsense judge, however, and has, as you say, been one of the tougher sentencers in January 6th cases. Unlike Eileen Cannon, she has, as all the judges, the district judges in Washington do, a lot of experience with the January 6th cases, because they've all had a lot of them. And so that

actually matters for a variety of reasons. The most important, in my opinion, is just the psychological sense of having sentenced a bunch of people for doing what he asked them to do. She is now facing him. And I think that is a really powerful psychological thing that would act on any judge in this district. She was responsible for a famous case during the Trump administration. It involved a detainee on a ship. The case was Doe v. Mattis, and she took absolutely forever to rule on it in a fashion that I thought was inappropriate, and a lot of other people did as well. So that gives me a little bit of concern about how she will move the case along since, you know, speed is at a bit of a premium here. But basically, I think this is a draw that Trump will be very unhappy about, though she does have

a public defender background and, you background and is certainly not unsolicitous of defendants' rights, and that the government will be pleased about because of her sentencing record in January 6th cases. She also, though, was the judge who really opened the door for the January 6th committee to get a trove of evidence. She wrote that famous decision with the line, the president is not the king, and basically, and you are not the president. So in many ways, we wouldn't be talking about this today if it was not for the January 6th Committee, and the January 6th Committee might not have been as successful as it was had it not been for her ruling. So she is certainly no stranger to the issues surrounding this. That's exactly right. And again, that's part of this larger picture of this bench in DC having a

great deal of intimacy with the issues around January 6th in general. And she is certainly part of that cadre of judges and also one of the judges who, you know, has not, there are judges on that court. I'm thinking of Judge Carl Nichols and Trevor McFadden in particular, who have issued some rulings that have caused some consternation among, in the Justice Department, and some of them have required appeals to the D.C. Circuit. She is not one of those judges at all. She has been solidly within the mainstream of the D.C. District Bench, which, unlike the South Florida Bench, is an extremely high-quality group of judges. Okay, so we are in the first week of August.

All indications are that Fannie Willis down in Georgia is going to be coming down with charges within the next couple of weeks. What happens next? First of all, do you agree with that? And then secondly, do you think that she will move ahead with that case, or will she let Jack Smith go first, considering that there's an overlap in some of the issues that they're going to raise? Yeah. So, first of all, one of the things that this indictment does is it vindicates Fannie Willis's investigation on a series of factual points. So if you read this investigation, Georgia is overrepresented relative to other states. And that's because Trump was very deeply engaged with Georgia, even beyond the call with Brad Raffensperger. And so the criticism that you've

heard of Fannie Willis over the last two years has been, why is she injecting herself into this? This is sort of a local prosecutor on the make. And the answer is, when you look at what the Justice Department has to say about it, she's interested in it because there are some serious crimes that took place in the place that she represents and that she's responsible for law enforcement in. And so I think a lot of people do owe Fannie Willis a bit of an apology. And I also think that when she brings her indictment, which is going to be, of course, solely focused on Georgia, people are going to be surprised at its breadth and the range of activity beyond what's in the federal indictment that it covers. How are we going to organize for trials? I don't know. I have the sense, in my own view, that this indictment of Jack Smith's should be the one that moves first and fastest. But that reflects both my own DC centrism and also my sense that January 6th is the most important issue of accountability for Trump. And so, you know, this is the case that represents the entire nation on the most important issue. And so, if I had the four judges in the room and was responsible for

working with them to create a schedule, I would start with assuming we can get all the motions done and it's just a question of scheduling. Does anybody mind if Tanya Chutkin goes first? But that's not really how this decision will be made. There will be no meeting like that. You know, I do think the judges are going to have to consult. Oh, do they? Okay. But I think Smith is going to have to decide what he asks for from each of the judges. And then each judge is going to have to decide, you know, the defense is going to try to throw

gum in the works in all four cases at the same time. And then, you know, the judges are going to have to figure out how to coordinate stuff. I was thinking about this. What was the last high profile case? This is, saying this is going to get me in trouble, but who was the last high-profile defendant to have simultaneous charges in four different jurisdictions at the same time like this? And the only person I can think of is John Allen Muhammad, the DC sniper, who had Maryland, Virginia, Alabama. I think there were DC charges. And coordinating that case was a nightmare. Eventually, they let Virginia go first because Virginia had the death penalty and had a faster docket. But it was a fight between prosecutors in different counties, between different states. The Justice Department had equities in it because it was an interstate matter.

And so I don't mean to compare Trump to the DC sniper, but I do think you have to reach to cases that weird before you get analogies that, least I do if somebody else can think of a different one that involves four different jurisdictions. So when anybody says that this is unprecedented, we can always cite this case. Once again, Donald Trump finds himself in very rarefied air, I guess. But Ben Wittes is the editor-in-chief of Lawfare, senior fellow in governance studies at the Brookings Institution, and our partner on our weekly. Every Thursday, we have the episode of the Trump trials. Ben, what a week. We'll have to see whether we have anything to talk about next week.

I have a feeling we're going to, but either way, Charlie, we will do this all over again. We will, and thank you all for listening today. I am Charlie Sykes. Thank you for listening to The Bulwark Podcast. We will be back tomorrow. You took my love. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.