The Bulwark Podcast - Trump’s Bravado Defense

Episode Date: June 29, 2023

Charging Trump for Jan 6 just got meaningfully harder after a Supreme Court ruling that has nothing to do with storming the Capitol. Plus, Rudy was Queen for a Day, John Eastman loses in a big way, and the end of affirmative action in higher ed. Ben Wittes is back with Charlie Sykes for The Trump Trials. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Donald Trump is rolling out a new defense this week after we got to listen to that bombshell audio tape. At first, remember, he claimed the documents at Mar-a-Lago had been planted by the FBI. Then he insisted that he had declassified them with his mind. Well, now he says that the war plans that he was talking about on the tape, all of that talk was just bravado. Secret plans? No, he says he was talking about plans for his golf course. Not Iran war plans at all, golf courses. Meanwhile, the Supreme Court nuked MAGA's independent state legislature theory, and Rudy is talking to the special counsel. Welcome to the Bulwark Podcast. I'm Charlie Sykes, and this is our new companion podcast, The Trump Trials, that we feature every Thursday in partnership with

Lawfare. And joining me again this morning, Lawfare's Editor-in-Chief, Ben Wittes. Ben, how are you? I am terrific. And anything I may ever have done wrong was just bravado. It was just bravado. It was just bravado. You know, locker room talk, bravado, and plans for my new golf course. And it's just outrageous that people would suggest otherwise. Also, Charlie, I have been indicted for you. For you. And I just sometimes feel like you don't appreciate my sacrifice for you enough. I am doing this for you. They really want you. It is a sign of the times, though,

that his new defense, the bravado defense, is basically saying, I was just bullshitting because I'm a bullshitter. And that millions of people go, that's right. Of course he was just bullshitting. Also, there is the rather epic gaslighting where Donald Trump is saying, no, what you just heard, you didn't hear. It didn't happen. None of that actually happened. It is gaslighting. Hey, before we get into all that, as you and I are speaking on Thursday morning, the Supreme Court, which has had a very, very busy week, just handed down, as expected, its ruling in the affirmative action case, essentially barring the use of race in affirmative action. It was 6-3 ruling by the court. And they write, this is the case called Students for Fair Admissions versus the President and Fellows of Harvard College. The decision is written by the Chief

Justice. And in brief, it's a very long decision. They write, eliminating racial discrimination means eliminating all of it. Accordingly, the court has held that the Equal Protection Clause applies without regard to any differences of race, of color, or of nationality, and it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. Any exceptions to the Equal Protection Clause's guarantee must survive a daunting two-step examination known as strict scrutiny. And it goes on to explain why the admissions policies of the University of North Carolina and Harvard do not meet that test. And so

as expected, the court has now turned the page on affirmative action. This will have tremendous implications for higher education. But your thoughts about this, Ben, because this is one of those cases that has been percolating, I want to say, for 30, 40 years now. At least since 1976, when the Supreme Court heard the Bakke case. I haven't read the opinion yet. It literally just came out. You informed me of it as we were about to go on air. I would say this is entirely unsurprising in that this is one of the foundational issues that most separates conservative from liberal

judges. There are six conservative judges on the Supreme Court. There are three liberal judges. That's the vote. So I would say this is an entirely predictable result of Trump getting to appoint three conservative justices to the Supreme Court. I think the conservatives may be surprised at the adaptation strategies of universities that will probably mitigate the impact of this. There are, I suspect, ways to design affirmative action programs that are more inconvenienced by this than forbidden. But look, if you're a classic judicial conservative, this is a result you have been thinking about really since affirmative action programs

in higher admissions were born. And if you're a liberal or a moderate who favors diversity programs, this is the highly offensive result that you've been worried about for a long time and up there with Dobbs as a kind of shock to your sensibilities of what the courts are for. And that's all without having read a word of the opinion. I think this inevitably will be seen through the lens of the Trump era and, you know, the new MAGA court. But the reality is, as you point out, this predates Donald Trump. This has been percolating for a very, very long time. I would also point out that I think this is going to play differently with the electorate than the Dobbs decision. The Dobbs decision was very

unpopular. In fact, I think polls would suggest that support for abortion rights has actually increased in the years since the court overturned Roe versus Wade. There are mixed polls on this, but the polls that I have been tracking would suggest that public opinion is pretty much turned on its head when it comes to race-based affirmative action, that the majority of Americans are skeptical of it. I think it was back in, was it 2020? There was actually a referendum in California on restoring race-based affirmative action. And, you know, this is one of the most liberal states in the country. And the same day that California voted overwhelmingly for Joe Biden, they voted overwhelmingly against restoring race-based affirmative action. Now, I know there's people who say that this is not a

harbinger, this is not a leading indicator, but I think it's an important data point to people that when this has been on the ballot, this is not an outlier position. I agree with that. The poll data, this is not similar to Dobbs in the likely voter reaction at all. When I said it was similar to Dobbs, I meant in the pantheon of liberal fears of what a Supreme Court would do. I actually think this is likely to be taken with a bit of a yawn by the general public and maybe even with modest favorability, especially because universities will be very creative in evading the consequences of it. And there are all kinds of strategies that universities will adopt to achieve diversity in their classrooms without overtly considering race.

And so I think the consequences of it may be a little bit less seismic than people expected, in contrast to Dobbs, where the consequences were, if anything, more seismic than people expected, in contrast to Dobbs, where the consequences were, if anything, more seismic than people expected. That said, you know, if you're a civil rights-oriented liberal, this is a big shock to the system. You made a reference to workarounds. This is from the court's opinion near the end of it. Nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.

So it's interesting. They anticipated at least one of the workarounds. I think the most likely alternative will be that this will become more income-based, more class-based, that the programs will be changed in that particular way. So we'll see how that plays out. Okay, so let's go back to the audio tape. Let's go back to the bravado defense, because in terms of developments in the Trump trials, this was the big one this week.

And for the first time, we got to hear this audio from the Mark Meadows memoir meeting at Bedminster when it was leaked to the media on Monday. Well, with Milley, let me see that. I'll show you an example. media on Monday. this is off the record but they presented me this this was him this was the defense department and him wow we looked at something this was him this wasn't done by me this was him all sorts of stuff pages wrong wait a minute let's see here yeah i just found isn't that amazing this This totally wins my case, you know. Not this case.

Except it is like highly confidential secret. There's a secret in front of it. Look at this. Your attack. This was done by the military, given to me. I think we can probably, yeah? We'll have to see. Yeah, we'll have to try to figure out a, yeah.

See, as president, I could have de-classified it. Yeah. Now I can't, you know, but this is the lesson. Now we have a problem. Isn't that interesting? Yeah. It's so cool. It is so cool.

So, man, I'm thinking how often do prosecutors get their hand on someone describing in great detail all of the ways in which they've committed felonies. Yeah, and with particular attention to explaining their own thinking in a fashion that highlights his criminal intent. It is pretty beautiful. So here's the thing. There is nothing in this tape substantively that we did not already know, in the sense that the material points of the tape are all transcribed in a much better position hearing his voice say those things, hearing the laughter, hearing the papers rustling, which are mentioned, by the way, in the indictment, but somehow hearing it feels different. You really are in a position in a way that you're not otherwise to say, how on earth is a juror going to say this is not what the government thinks it is? That this is not evidence that he, A, had this information, B, knew it was classified, C, was aware that he did not declassify it, as he said, was specifically aware of the level of

classification and the sensitivity of the material, and D, was using it for self-promotion to staff and to show off, and for entirely self-interested purposes, how is a juror going to hear that and reasonably conclude anything else? And I do think that point is made much more vivid by the audio, not just the transcript of the audio. But I have some questions. First, the document that we're talking about here is not included in the indictment. There's no indication that they actually found this document, and he's not charged with having this document. That's number one, which relates to my second question is, this took place at Bedminster. Why didn't they execute a search warrant in New Jersey? Why didn't they search for documents at Bedminster if they had this kind of information?

All right. So the first point, I'm not entirely sure that the premise is correct. So he says he could not find this document, but the government specifically refers to it as a classified document in the indictment. And that means that they are prepared to prove beyond a reasonable doubt that the document was classified, which means that they have to be able to prove that the document exists. And so my assumption is that they know more about this document than we do, and that they are prepared

to produce this document, that they are prepared to go through a SIPA process and use this document to the extent they need to. So I would not assume that this document is kind of missing. What we think is that this document was not returned. But there's only a limited number of documents that General Milley prepared on invasion of Iran. And remember, you can get him to testify that, A, yes, this is the document I prepared. Yes, I presented it to Trump. No, there is no other document like that. And by the way, the document that I prepared was classified at the secret level and dealt with military preparations for an attack on Iran. I think the government is almost certainly in a position to present, and remember, they also have the testimony of presumably everybody else who was in the room.

And so I think they can surround that with material. Now, your second question with testimony that will identify, and presumably with the document itself, that will identify it very precisely. Your second question is a really interesting one, and I don't know the answer to it. They have this audio tape that says, I at Bedminster presented a classified document to people unauthorized to receive it. And by the way, I'm unable to produce this document in response to demands for its return, or I'm refusing to, or whatever. And so the question of why they didn't execute a search at Bedminster is a bit mysterious and is presumably the answer to which is also related to the question of why the activity at Bedminster was not prosecuted. Remember, this conversation is in the indictment not because he's being charged with it. It's in there because it reflects state of mind evidence

vis-a-vis the conduct in Florida with which he is charged. And so the question of why nothing related to Bedminster has been charged is an interesting one. And I assume the answer to the search warrant question is tied up in there, but I don't know the answer to it. And it's one of the reasons we have to keep in mind the possibility that there is a Bedminster indictment shoe to drop. That is interesting. And speaking of state of mind, you also are getting, I think, a little bit of insight into Donald Trump's state of mind right now that he's flailing. I mean, these new defenses that it was bravado or that he was actually talking about golf course plans. I mean, these are like laughably absurd, but apparently he's just convinced that his supporters

will believe anything that he says, that he can engage in any kind of gaslighting. But it is interesting. I mean, I think that this is a moving target. And I mentioned this new AP poll to you right before we started the podcast. The Associated Press and the University of Chicago asked Americans, were Trump's actions in this classified document case illegal, unethical, but not illegal? Or do you think he did nothing wrong? Among all voters, only 13% said he did nothing wrong. More interesting, among Republican voters, only 26% say he did nothing wrong. Among all voters, 53% said what he did was illegal. 16% say unethical but not illegal.

You add those together, that's 69% of Americans think that Trump did something illegal or unethical. But also more interesting, among Republicans, 23 percent of Republicans think that what he did was illegal. Another 29 percent say unethical, but not illegal. So that adds up to 52 percent of Republicans. So I wonder whether or not, I mean, again, our conventional wisdom is that nothing matters, that he could shoot anybody in the middle of the street, et cetera. But as these dazzling details come out, and as people begin to read more and hear more, and it kind of breaks through the bubble, and people like Chris Christie are hammering on this, and Bill Barr hammering on this,

whether or not you are seeing, in fact, some movement of public opinion away from Trump on this issue. What do you think? Again, I don't know. I don't think anybody knows the answer to this question. His basic poll numbers are remarkably stable, you know, from 42% approve of him, irrespective of how clownish or vile or clown with flamethrower, as you like to say, his behavior is. And so I think we should start with a basic skepticism that anything moves the numbers. That said, these are super powerful allegations, and they're supported by a remarkable diversity of evidence that is extremely strong. And the more he tries to puncture it, the stronger it seems. flitted between they planted the documents that were classified, that I declassified, that was all just bravado, and that I had an absolute right to talk about my golf courses, and by the way, give me my documents back. At some point, the only reasonable conclusion from his own discussion of it is that he's guilty of sin and he can't stop talking.

He's a chronic liar and grifter as well, which is something we've known and we've known all along, but it's kind of right out there right now. The whole thing is sort of unsubtle and it gets unsubtler and unsubtler. But what is interesting about this, you know, that Donald Trump is a chronic liar and grifter and fraudster, also a threat to national security, and that he's been trading on his office for years. One of the interesting developments is that now we have at least one Republican who is saying it. And like, I do not want to be confused with being a Chris Christie fanboy. On the other hand, I have to say, this guy is bringing it. So Chris Christie sits down with Caitlin Collins and talks about a lot of this, including Jared Kushner and the trading for favors and raising money for his defense. As a palate cleanser, let's listen to Chris Christie last night on CNN.

Let's remember something. He's a billionaire. He's a billionaire, self-professed billionaire. Why can't he use his own money to pay his personal legal fees and not use money coming from the public? It's disgraceful. And it's a continued grift. And look, the Trump family has been involved in grifting for quite some time. He was doing this in terms of the people who got paid

out of this pact before, whether it was Kimberly Guilfoyle or other members of the family. Jared Kushner, six months after he leaves the White House, gets $2 billion from the Saudi sovereign wealth fund. When Donald Trump had put him in a position to be in the Middle East, what was Jared Kushner doing in the Middle East? We had Rex Tillerson and Mike Pompeo as secretaries of state. We need Jared Kushner. He was put there to make those relationships, and then he cashed in on those relationships when he left the office. So what Donald Trump's doing now is just a continuation of what he's permitted his family to do over the entire course of his time as president.

Why do you think he's not using his own money to pay for his legal fees? Because he's the cheapest person I've ever met in my life. That's why. And what he's very good at, Caitlin, is spending other people's money. And if you look at his history in New Jersey. And you think he's misleading his voters, his supporters by. I think those supporters write a check to Trump for president. They think they're paying for campaign expenses, not for personal legal expenses. What happened to him, let's say with the documents case, had nothing to do with the campaign at all.

It's a personal fault of his, mistakes he made, that he's now being held to account for and has to pay lawyers to defend him. He's just all out of bleeps to give, isn't he? I mean, he's just laying it all out there. He is, and he's, you know, attempting to make up for years of covering for Trump, which, of course, you can't do. But it is nice to see him try. and pugilistic and articulate as Chris Christie and smart on his feet, making this argument to Republican audiences so that you guys at the bulwark are not the only ones. But it's not just that. You know, I do. There's a couple of important substantive points here. One is, you know, Christie is right that the use of campaign

legal fees to pay personal criminal defense funds for matters unrelated to a campaign is a dicey proposition. And I have not studied the law on it, why the campaign thinks this is an appropriate or reasonable campaign expenditure, and I'm not an expert on campaign finance law, but I will say it is highly misleading to raise money for somebody's campaign for president and to spend it on their personal legal defense. I will also say that the logic of this theory runs out because you can't solicit donors to spend prison time on behalf of the candidate, right? So the logic of this would be, okay, you okay, give money to Donald Trump and you can externalize the cost of his legal jeopardy to the campaign and therefore ultimately to the donors to the campaign. but it doesn't work with criminal sentences. And so I do think the idea that Trump can basically pass on these costs to the voters, it's offensive and it's objectionable, but the logic of it is limited. Well, and this is not directly related, but we have heard reports that Jack Smith is also investigating the massive grift around the big lie that, in fact, Trump or the Trump campaign may have engaged in wire fraud

by telling people to contribute to a fund to try to overturn the election, when in fact, none of it went to all of that. So we don't know about that. I want to move on to some of the other major developments, including the Rudy Giuliani story, the importance and significance of two other Supreme Court decisions this week. But there's an interesting sidebar here. Walt Nauda, Trump's box-moving body man and co-defendant in the documents case, was supposed to be arraigned on Tuesday at the Miami federal courthouse. Your colleague Anna Bauer was writing about this. He was not arraigned on June 13th with Trump because he had been unable to secure any local counsel. But on Tuesday, he didn't show up because of travel delays out of New York, where presumably, you know, now he's working at Bedminster, supposedly spent eight hours at the airport. I mean, that kind of thing happens. But the real reason, and correct me if I'm wrong about this, the real reason why the arraignment for the magistrate, not Judge Cannon, didn't proceed was that Nauda still cannot find any local lawyer to take his case. So what's going on there? So again, we don't know. The amount of

information was limited and was limited to the fact that he had not yet been able to secure local counsel. This is, shall we say, unusual in a prominent white-collar criminal defense matter to have somebody who two weeks after initial arraignment, well, didn't have local counsel and so couldn't be arraigned as an initial matter. Arraignment gets postponed for two weeks and two weeks later still doesn't have local counsel. The explanation for it is murky. And actually murky is a generous word for it. No explanation was given. I would assume that the answer has something to do with a lot of local lawyers having conflicts in that a lot of local lawyers of a disposition to handle a case like this may have other Mar-a-Lago employees as clients and they may be witnesses. And so there may be some conflict issues. Maybe they just want to be paid and they just want to make sure they

get paid up front. That's the other issue, right? You know, it's unclear who would be paying these bills. And, you know, this is not a network of people who are famous for paying bills on time, unlike representing Trump. Trump has been able to navigate this over the years because he is a star, right? And when you're a star, they let you do it, including not pay your legal bills. So what happens is people get entranced with the idea of representing a president or a former president. And so they sign up and sometimes when they're smart, they get a huge retainer up front. And sometimes when they're dumb, they just end up getting stiffed, but you at least get the star fucking value out of having represented the president. Query whether for any of them it turns out to be worth it, but that's a different question. Walt Nauta, no one's going to remember his name 10 years from now. And so you were the unpaid local counsel because he's got counsel. He's got a good criminal defense lawyer. He's just not got local counsel. So you're going to be the unpaid local counsel for the Trump body man who

everybody forgot. And it'd be one thing if you expected him to flip and become the star witness, but I don't think people really expect that. Speaking of flipping and singing, I wrote in my newsletter that just a reminder that we don't know what we don't know and nobody knows really nothing. But we are hearing now that Rudy Giuliani was interviewed by federal prosecutors last week about Trump's efforts to overturn the election. He is saying, as lawyers are saying, was completely voluntary. And this voluntary interview is known as a proffer agreement and is seen as a sign that Jack Smith is seeking witnesses who might cooperate in the case because, as the Times explained, a proffer agreement is an understanding between prosecutors and people who are subjects of criminal investigations that can precede a formal cooperation deal.

The subjects agree to provide useful information to the government, sometimes to tell their side of the story, to stave off potential charges, or to avoid testifying under subpoena. So how should we read this? What is Rudy Giuliani doing, and why would Jack Smith basically make a proffer to this guy? So it suggests that Rudy is contemplating cooperating and seriously contemplating because you don't offer a proffer. And so usually what happens with a proffer is that somebody comes forward and they believe they're going to get indicted, which Giuliani clearly has reason to believe he's going to get indicted. They come forward and say, I have information that could be helpful. And the government says, well, what can

you give us? And the problem with that question is that you can't answer it without violating your Fifth Amendment rights, right? So if you answer that question, you give information that could then be used against you. So this is kind of like immunity for the day, queen for a day, isn't that what it's called? It is called queen for a day. And here's how it works. You come in, there's an agreement that as long as it's true, the information that you provide cannot be used against you. And on that basis, you give a voluntary, what's called a proffer. It's the information that you would testify to if you were in a position to testify freely. And then the government has a couple options. It can say, actually, this proffer isn't interesting to us. It doesn't give us enough. Sorry, we're

going to prosecute you anyway. But then it can't use any of the material. Or it can say, huh, this information is really valuable. We need it. Let's do a deal with you. And then you figure out, okay, what are you prepared to plead to? What are you prepared to, in the extreme case, will they just immunize you in exchange for the testimony? There's no way they're immunizing Rudy Giuliani. If there was a proffer, it is preceding some kind of a plea agreement. And the third possibility is that they decide you're lying in your proffer, and then they can use all the information that isn't true. If you lie in the proffer, that's Paul Manafort land stuff, and that's a real, real problem. So I think the best way to understand this is that Rudy Giuliani

is contemplating a plea deal. And probably what happened was that his lawyers went to the government and said, our guy can be helpful. And the government says, all right, let's sit down. What do you have? I mean, that's potentially just a huge development because Rudy Giuliani is at the center of almost everything that went on on January 6th. Correct. But there are important gaps. Remember that there is no conceivable worse witness than Rudy Giuliani. I mean, literally, there's video of him in a bed

with a 15-year-old from Sacha Baron Cohen. He might have some credibility issues. You're suggesting that he might not be the most reliable narrator in the world. Right. But he might be incredibly important for purposes of telling you what happened, but he's somebody you're going to, as a prosecutor, put on the stand very reluctantly. This isn't a Cassidy Hutchinson situation, but it is a situation where he can corroborate all kinds of things that you think you know. He can refute things that you think you know. And the other thing is, remember, having him plea would be an amazing accomplishment in its own right. That would be an earthquake, yeah. Right. I think it's a big deal. It's early to say what we think it means, but the fact that he's voluntarily talking and not

litigating to avoid a grand jury appearance or just being stuck in front of a grand jury, and the fact that somebody told the New York Times it was a proffer conversation, it's a big deal. So speaking of big deals, speaking of huge deals, Supreme Court came down with two major decisions this week. I want to start with this one. The independent state legislature theory, they nuked it from space. This idea that state legislatures have the authority to set all election rules with little or no oversight from state courts. This decision in the case known as Moore versus Harper basically blew up one of the favorite MAGA theories that legislatures could simply ignore the popular vote, ignore federal courts.

The court voted six to three, rejecting that theory in the case involving a North Carolina redistricting map. And a lot of observers have noted if the court had gone the other way, it would have upended both congressional and presidential elections. Judge Michael Ludick basically says this is just enormous in terms of its significance. So talk to me about this in terms of what happened on January 6th, because really, this theory was underlying a lot of what people like John Eastman were arguing, and now it has made it clear that that was legal BS. But also going forward, it's not one of the weapons, not one of the subterfuges that they would be able to

use to overturn an election in the future. So how big a deal was that decision? Well, so it's a big deal in a dog that didn't bark kind of way. So we're never going to look back on something and say, you know, there was an attempted coup, but the Supreme Court stopped it, right? Because this is going to actually prevent people from ruminating on the kind of legal theories that had John Eastman's heart going pitter-patter and that the president was trying to force Vice President Pence to adopt. So there are respectable and unrespectable versions of the theory. The respectable version is something that flowed from Bush v. Gore and has been floating around there for a long time, that the legislature of a state has special status in both congressional and the selection of electors' laws. And the Supreme Court kind of rejected that, actually. The unrespectable theory was never respectable

enough to warrant Supreme Court conversation. But because the respectable version was available, got this kind of, hey, we could be kind of edgelords and take this to its extreme, kind of. And that's what happened in the post-2020 context, and which was feared for future elections. And so I think the consequences of this is more that it sweeps that stuff off the table and says, don't even think about it. The basic premise is not correct. And there are six votes on the Supreme Court for that, including Brett Kavanaugh and the chief. So you're not in the same position that you were if you're John Eastman, where you can say there are these open questions and be 5% right. And I think that matters in a big way. Another case that might matter in a big way, which I have not paid this much attention to,

I really want to get your analysis of it. The case of Counterman versus Colorado, the implications it has for prosecuting Trump for January 6th. Now, this particular case had nothing to do with Trump or January 6th. It involves this Colorado guy who was convicted for stalking a local musician. He was sending her messages on Facebook for two years. The court ruled that the guy, Billy Counterman, was convicted on the wrong legal standard. And this was a 7-2 ruling. Justice said the jury should have been required to make a finding about whether he intended his comments to be genuine threats. You had a professor at the University of Minnesota on Lawfare writing about the most interesting part about this case is what it might signal

about the viability and probability of a prosecution of Trump. He said, look, in short, it just got meaningfully less likely because Justice Kagan, writing for the 7-2 majority, ruled that under the First Amendment, the government has to prove in these true threat cases that the defendant knew that the communication could be reasonably perceived as threatening. That is, the defendant was reckless in making the threat. So, I mean, all nine of the justices agree the prosecutions for inciting violent or lawless action, which is a different crime, do require establishing specific intent, not just recklessness. So what kind of a message did this send to Jack Smith on any cases that he was contemplating bringing against Donald Trump for inciting violence on January 6th?

Yeah, I think Alan Rosenstein, who wrote this article, has it exactly right, which is, look, it's not clear whether this was an intentional effort by the justices to send Jack Smith a message. I wouldn't say that. But all nine of them, in different ways, distinguish between the threats issue that were before them in countermen, which, you know, really, there's a lower First Amendment standard. If I say to you, Charlie, I'm going to kill you, you don't need to prove that I specifically intended to threaten you. You need to prove something much lower. But if I say, Charlie, let's go storm the Capitol, by contrast, all nine of them agree that for that to be an incitement under the First Amendment, I have to mean for you to be inspired to have imminent lawless action. And so, I think the message too that Jack Smith will take

away from that is, boy, you really can't fudge the degree of intent and imminence at issue in an incitement case. There's no way around it. None of the fancy legal theory is about how it's different because it's January 6th or it's different because it's Congress, right? There are all these theories about how to get to incitement. And the Supreme Court just unanimously really waved people off of that. There's not a lot of evidence, by the way, that Jack Smith was looking at an incitement theory. He's looking at the grifting stuff. He's looking at fake electors. He's looking at the contact with Pence. And I've always assumed that the reason that he was avoiding the incitement theory is that, frankly, it's a stretch under First Amendment law. The First Amendment is really protective in the incitement department under a case called Brandenburg from 69.

The Supreme Court just unanimously said, yeah, we mean that. And whether they said that about it in the context of trying to send a message to Jack Smith, he's a smart lawyer, he will read this opinion. And unless he's got overpowering evidence of intent to incite imminent lawless action, like, for example, evidence of the type that Rudy Giuliani or Mark Meadows could give him, for example, Donald Trump told me he needed to speak to the crowd so that they would go storm the Capitol. That would be the kind of evidence. But unless you have that, there will not be an incitement prosecution. More specifically, so before this counterman case, Trump stopped the Steele speech and is ordering the removal of the magnetometers at the Ellipse. Mike provided basis for prosecuting him for the insurrection, but now having to prove

that Trump intended violence instead of just being reckless about the possibility of violence, really no prosecutor is going to bring an indictment unless they're really, really sure that they can prove beyond a reasonable doubt that Trump was specifically trying to forcefully disrupt the Electoral College vote. It really raises the bar. You have to prove intent that he wanted them to commit acts of violence. And you can imagine the various defenses against that, including First Amendment defenses. Here's a good way to think about it. There's two types of evidence that can bear on intent. One is direct evidence, right? Charlie told me he was going to rob the bank. Well, the bank got robbed, right? This shows that it wasn't an accidental robbery. You told me you were going to do it.

The second is a sort of circumstantial, right? He did this, he did that, he did that. The only reason you would do these things, he got rid of the magnetometers, he said they're not here for me, blah, blah, blah. The only reason you would do these things is if you intended. Reading this opinion, you want direct evidence of intent, like him telling somebody, I want them to go storm the Capitol. I'm going to give this speech and send them to the Capitol. You want something really direct, really impossible. You want something like that tape. And if you don't have that, you're not going to bring the case. I suppose this is a more minor development in one of the New York fraud cases. It's hard for me to keep track of all of them without it right in front of me. I need a chart in front of me when

I'm talking with you. Ivanka Trump was dropped from New York's $250 million fraud case against Trump. Is there any significance to that, why Ivanka is now out of that case? I have no idea. And I have not followed the civil fraud cases closely. I mean, I've sort of read the newspaper about them. And I don't know what her alleged role was or why it has now been dismissed. This is, again, one of the reminders that there was once a time when the civil fraud trial would have been consuming, that anybody in public life would have been disqualified for any one of these things. And now it's like a footnote to a footnote sort of off on the side. And this is the world that we live in. Ben Wittes, thank you so much for spending time

with us today on this episode of The Trump Trial. We'll do it again. Thanks, Charlie. You're a great American. As are you. Thank you all for listening to the Bulwark podcast today. I'm Charlie Sykes. We will be back tomorrow and we'll do this all over again. The Bulwark podcast is produced by Katie Cooper and engineered and edited by Jason Brown. Thank you.