The Bulwark Podcast - Trump’s TV Strategy

Episode Date: June 22, 2023

Trump keeps undermining his own defense, but he's not wrong that if he wins, he can make the cases against him go away. Plus, John Durham gets humiliated again, and justice was served on behalf of police officer Michael Fanone. 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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off your first month. That's betterhelp.com. Landlord telling you to just put on another sweater when your apartment is below 21 degrees? Are they suggesting you can just put a bucket under a leak in your ceiling? 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. Donald Trump's legal troubles didn't get any better this week as he essentially confessed on national television. We also heard from the great anti-Mueller hope, John Durham,

who testified in front of Congress, some major developments in the January 6th case, the sentencing of one of the most violent of the rioters and the protesters. And we get a report from the Washington Post that the Department of Justice and the FBI may have slow walked the investigation. Welcome to the Bulwark Podcast. I'm Charlie Sykes. And this is the latest episode of our new companion podcast, The Trump Trials, that we feature every Thursday in partnership with our friends from Lawfare. And of course, joining me again this morning, Lawfare's Editor-in-Chief Ben Wittes, the author of the invaluable Dogshirt Daily newsletter. Good morning, Ben. How are you? Good morning, Charlie. Is your world rocked this morning by John Durham's testimony yesterday? Have you repented all your sins now that you realize that the entire sequence of Trump investigations was indeed a hoax perpetrated by secret deep state actors against a presidential candidacy? All of the hopes that were invested in John Durham by MAGA World. I mean, he was going to blow the lid off something, something, something, right?

I mean, so he investigated for years to expose, I think Donald Trump referred to it as the crime of the century. And it hasn't gone well for John Durham. He's been humiliated in the courtroom. His report was kind of a damn squib. And things didn't go that much better when he testified before the House Committee did it. I think his best moment yesterday was just the shot of his beard before he said a word. It's all downhill. Because, you know, the beard does look kind of menacing and, you know, like justice glued to a face.

But then he started talking and it just didn't go so well. One thing that I think needs to be underlined here is that, again, you know, when Donald Trump is promising that John Durham was the guy who was going to expose the crime of the century, John Durham comes out and makes it very clear that he's not criticizing the Mueller report in any way whatsoever. In his opening statement, the one part that he actually had prepared for, he said his report should not be read to suggest in any way that Russian election interference was not a threat. It was. And then he's talking about Mueller himself. He didn't hold back anything. He said, our object, our aim was not to dispute Director Mueller. I have the greatest regard,

the highest regard for Director Mueller. He have the greatest regard, the highest regard for Director Mueller. He is a patriot. This is not the way most Trump folks, and we'll get to this a little bit later. One of the guys who was really, really mad at John Durham yesterday was Matt Gates. So let's walk through. Did you catch the back and forth with Adam Schiff? I did. There were several back and forths over the course of the testimony, including that one, including with Representative Cohen, that revealed that Durham does not appear especially conversant in the findings of the Mueller report. Okay, that was, to me, the most shocking part, how little he knew and understood. And Adam Schiff, this seems very timely because, of course, Kevin McCarthy's majority voted to censure Adam Schiff last night. And, of course, this led to chaos on the House floor with Democrats saying, shame, shame, shame. And my guess is, and this is just some rank punditry,

is that it probably makes it far more likely that next year we'll see a senator shift since he's running for Senate in California. And there is nothing that would, I would think, support his campaign or give rocket fuel to his campaign more than being censured by Kevin McCarthy's majority. But in any case, let's play a little bit of this, because it was interesting. And just keep in mind, again, how overhyped, how hyped up this Durham report was and the way in which in, say, Fox News world, it's still considered to be, you know, this debunks the Mueller report. So, I mean, John Durham comes out and basically says, yeah, we're not debunking anything. We think it was really good. And then, you know, Adam Schiff asked Durham about, you know, details about the Russia collusion, including, you know, the fact that Donald Trump's campaign manager, Paul Manafort, was actually sharing polling data with a Russian operative.

Let's play cut number one. Both Mueller and congressional investigations found that Trump's campaign chairman, Paul Manafort, was secretly meeting with an operative linked to Russian intelligence named Konstantin Kalimnik, correct? That's my understanding, yes. And that Manafort, while chairman of the Trump campaign, gave that Russian intelligence operative the campaign's internal polling data, correct? That's what I've read in the news, yes. And that Manafort provided this information to Russian intelligence while Russian intelligence was engaged in that social media campaign and the release of stolen documents to help the Trump campaign correct you may be getting beyond uh depth of my knowledge but

well let me let me say very simply while Manafort the campaign chairman for Donald Trump was giving this Russian intelligence officer internal campaign polling data, Russian intelligence was helping the Trump campaign, weren't they? I don't know that. You really don't know those very basic facts of the investigation? I know the general facts, yes. Do I know that particular fact myself? No. I mean, I know that I've read that in the media. Oh, so bad. Yeah. I have to say that I thought I was kind of beyond shock. I figured this was going to be routine in that exchange. Yeah, I didn't really know much about that thing. I mean, at one level, it's just a humiliating moment for Durham. But at another level, it goes to something

very profound about the Durham project, right? So John Durham is appointed by Bill Barr initially, not as a special counsel, but to conduct a review of how the Russia investigation started. And he pursues a weird set of conspiracy theories that we still don't really know how Barr cooked up, but that he seemed interested in and committed to early in the period right after Mueller's report came out. And if you read the Durham report, he is fixated on this idea that when the George Papadopoulos information first came in, that is when you'll recall that George Papadopoulos gets a little too drunk and talks to the former Australian foreign minister and then ambassador to Britain, Alexander Downer, and sort of boasts that the Russians have dirt on Hillary Clinton. And at the point at which the Australians turn this material over to the FBI, the FBI, in my view, quite rightly, immediately predicates an investigation. And

Durham is, in his report, is very fixated on this idea that when they opened this investigation, they didn't have any other evidence of collusion, that the evidence of collusion that predicated the investigation was really the only thing they had on collusion, to which some of us respond, wait a minute, that's when you open an investigation, is when you get your first significant piece of information and you want to find out if it's true. So you investigate things. That's why you investigate things. But leave aside that sort of, I don't know, almost definitional point about an investigation. Durham seems remarkably uncurious throughout his investigation about the degree to which Mueller established all kinds of other evidence of contacts and

cooperation and offers of help between the Trump campaign and the Russians. He's uninterested in things like, you know, the Trump Tower meeting. Okay, let's play that because that was another one of those moments where Schiff is asking about Trump family members meeting with Russians at Trump Tower in June 2016. This was after they had promised they would dish dirt on Hillary Clinton and Don Jr. agreed to that meeting. Okay, let's play that. Anywhere Mr. Durham that Mueller and congressional investigations also revealed that Don Jr. was informed that a Russian official was offering the Trump campaign, quote, very high level and sensitive information, unquote, that would be incriminating if Hillary Clinton was part of, quote, Russia and its government support of Mr. Trump? Are you aware of that? Sure. People get phone calls all the time from individuals who claim to have information like that. Really, the son of a presidential candidate gets calls all the time

from a foreign government offering dirt on their opponent? Is that what you're saying? I don't think this is unique in your experience. Okay, so a little bit of a dig there. I don't think this is unique in your experience. So, you know, this causes a little bit of laughter, but without missing a beat, Schiff then keeps going. I asked Durham if he knows of any other sons of a presidential candidate getting calls from the Russian government. You said that it's not uncommon to get offers of help from a hostile foreign government in a presidential campaign directed at the president's son. You really stand by that, Mr. Durham? I'm saying that people make phone calls making claims all the time that you may have experienced. Are you really trying to diminish the significance of what happened here

and the secret meeting that the president's son set up in Trump Tower to receive that incriminating information? Are you trying to diminish the significance of that, Mr. Durham? I'm not trying to diminish it at all, but I think the more complete story is that they met and it was a ruse and they didn't talk about mrs clinton and and you think it's insignificant that he had a secret meeting with a russian delegation for the purpose of getting dirt on hillary clinton and the only disappointment to express that meeting was that the dirt they got wasn't better you don't think that's significant? I don't think that that was a well-advised thing to do. Oh, not well-advised. Well, that's the understatement of the year. No kidding. I mean, I think when you look at his obsessive interest in the lack of corroboration in the FBI's holdings at the time the Papadopoulos came in, and his total uninterest in later acquisition of, you know, information about, in fact, direct contacts

between the campaign and the Russians. And these include, you know, exchanges of poll data with a Russian intelligence officer, the Trump Tower meetings, a whole negotiation over building Trump Tower Moscow, all of which Trump was actively lying about. It almost seems quaint to me to focus on the fact that none of this was known at the outset of the investigation. I was trying to think of a good analogy for it. And it's like, if I get a tip that you're robbing banks, and it's completely uncorroborated, and maybe it comes from a source that I trust a lot and maybe from the Australian government, but the information itself is not that corroborated. And I open an investigation on you, and then I get criticized a lot for opening the investigation on a flimsy basis.

But then it later turns out that you've robbed hundreds of banks. It seems a little weird to say, yeah, but, you know, the whole investigation shouldn't have taken place because, you know, the Australian government didn't really, we didn't really have any corroboration of the Charlie Sykes crime spree at the time that I opened the investigation. And for political operatives, for the federalist people, for Matt Gaetz to be saying all this, I totally get it. They're hacks, they're propagandists. But for a federal prosecutor who's written a 400-page report or 300-page report to not really have an answer to the, yeah, but look at all the bank robberies we found problem, strikes me as weird. Yeah, I read about those in the media. And by the way, his account of that Trump Tower

meeting is just not true when he says they didn't talk about Mrs. Clinton, the Mueller report, you know, notes that in fact, they did discuss this, you know, in fact, I think it was in the Senate report, they also said that they did this. I mean, his characterization of the meeting, and David Korn has a great piece goes through all the false statements that he made, you know, Durham's characterization of that meeting that they didn't talk about Clinton does line up with what the Trump camp first claimed when the media happened. They lied about it. Later, Trump actually conceded the point of the meeting was to gather negative information on Clinton from a foreign adversary. This was a meeting to get information on an opponent, Trump said. So what's weird is that it's years later,

after they basically admitted it, that Durham is still peddling the original disinformation about the meeting that was propagated by Trump and his allies. I mean, it's just kind of amazing. Yeah, I mean, I think Durham's psychology and motives are genuinely opaque to me. You know, he's somebody whose career previous to this, I had some awareness of because, you know, he investigated some of the CIA secret prisons issues associated with the destruction of tapes of interrogation. And I've always had a mixed view of him, to be honest. But I never saw him as a raging partisan or a propagandist or a kind of Bill Barr type. And so I was very much taken by surprise by his conduct through this whole episode. And I think his performance yesterday and the report itself is a kind of mystifying coda to the whole episode.

Okay, also yesterday, a Donald Trump supporter who drove a stun gun into the neck of Washington police officer Michael Fanone was sentenced to 12 and a half years in prison. This would be, I think, the third longest prison term. This is Daniel D.J. Rodriguez. Just to remind people what happened, Michael Fanone has told this story multiple times now, you know, how he was basically, you know, grabbed by the rioters. You know, they were going for his gun. People were saying, kill him with his own gun. He was, you know, shocked by tasers over and over again until he had a heart attack. This is a short soundbite from Michael Fanone telling this story to Congress last year. That initial period of time where I was pulled, you know, off that line was kind of a blur.

I just remember getting violently assaulted from every direction and eventually found myself out probably about 250 maybe 300 feet away from the mouth of the tunnel where the other officers were at and I knew that was in I was up shit Creek without a paddle I was trying to push guys off of me, create some space. All the while, I recognized the fact that there were individuals that were trying to grab a hold of my gun. I remember one of them distinctly lunging at me time and time again, trying to grab my gun. And I heard people in the crowd yelling, get his gun, kill him with his own gun, and words to that effect.

Good grief. DJ Rodriguez, as he's leaving court, apparently shouts, Trump won. I wonder where he got this idea. as a result of basically amateur sleuths, a guy living in Germany who was doing a frame-by-frame analysis of what happened on January 6th and was able to pick out the guy that was attacking Officer Fanone. And then, of course, they found all of the social media texts where he'd actually bragged about what he did on Telegram. He said, OMG, I did such effing shit and got away. He wrote to fellow members of the Patriots 45 MAGA gang, tase the F out of the blue. So he confesses it, but appears to have no remorse whatsoever, despite his conviction and getting 12 and a half years in prison. What do you think?

Well, he'll have a long time to think about it. Unless Trump pardons him, of course. Yes. Look, there are really three possible bases in which people can get long sentences. And most people are getting relatively small amounts of time on, I think, on the theory that this is a huge event, but responsibility for it is dispersed among large numbers of people. And while they're all somewhat responsible, you have to assign criminal penalties based on what the individual did, which is usually not all that much, rather than what on the collective mob did together. And there are a few things that separate individuals and create really long sentences. One is sedition. There are these groups of people who've been convicted of seditious conspiracy, and those sentences, some of which have been enhanced by the terrorism enhancement,

get pretty long, you know, getting up near 20 years in some cases. The second is, and we haven't seen this yet, but I do think it's going to happen, is think about things like the Trump-Mar-a-Lago indictment, where you have these highly bespoke, this isn't in the January 6th context, but these highly bespoke indictments that are really about very individualized bad conduct. And I think as you see some of the political level indictments happening in the January 6th cases, if they ever happen, those will be on a very different scale, I suspect. But the third issue is violence. And you can be pretty low down the totem pole. But if you repeatedly tase a police officer, if you cause somebody to have a heart attack, if you beat somebody,

you know, you're going to rack up a lot of time. And that's what you see in these cases, which is, you know, the people who wander in and didn't have a plan to go in, but kind of wander in are getting probation, getting suspended time, sometimes doing a few days, you know, because basically they're guilty of trespassing. The people who destroyed things, who plotted, who did violence are getting a number of years. And the people who really did heavy duty violence, who attacked people, not just breaking windows or putting your feet on Nancy Pelosi's desk or something, but who actually caused injury. You know, the justice system takes that pretty seriously. As it ought to.

As it ought to. And by the way, I know you talked about this with Andrew Weissman yesterday, this Washington Post story about the slowness with which the Justice Department began looking at the political echelon stuff. about getting as many of these people off the streets as quickly as possible because the Biden inauguration was coming up, because you wanted to deter future violence. And we have now had two Trump indictments and arraignments without significant violence. And I do think we have to think about that as a likely result of a strategic decision by the Justice Department to get as many of the DJ Rodriguez's off the street as possible and send a really loud message to others. And so, you know, without getting into whether the focus on street-level violence was the right call or the wrong call, it's certainly a call with negative consequences, like that Trump remains unindicted for January 6th. It also has some positive consequences, and one of them is, I think, that Miami went off largely without a hitch.

I do want to come back to this a little bit later, and I want to talk about Trump's TV confession, but I have to do something first, Ben. My wife wanted me to tell you that she is a huge fan of your series, your Lawfare series called The Aftermath, and wanted me to pass on the apologies that she hadn't listened to the first couple of seasons until now. And now she is binge listening to all of these podcasts. So what are there now, five seasons of The Aftermath?

Yeah, so The Aftermath is the fourth season of a series that we started at the time of the Mueller Report. Some of your listeners may remember we did this series called The Report, which was actually telling the story of the Mueller Report as though we were this American life or something. And that series, which I did with Susan Hennessey and some other people, it's Lawfare's probably biggest smash hit in popular media. I think it was briefly number one on the Apple podcast charts. So we followed that up with during the Trump impeachment, a series that was essentially just found sound from the impeachment trials. Every day we did a kind of compilation of the sound and testimony of the day. So eight hours of sound, we would reduce it down to 45 minutes or an hour that

would kind of tell the story of what happened in the impeachment that day. And then the third season, which it was a real departure for us, was a story about Afghan translators who worked with U.S. forces over the course of 20 years of U.S. presence in Afghanistan who got left behind and who were trying to get out. And the problem of the special immigrant visas that we issued. That's a series called Allies. And then we started The Aftermath, which was an effort to tell the story. This is all on the same feed. It's called Lawfare Presents The Aftermath,

which is an effort to tell the story of the effort at accountability for January 6th. And it looks at diverse government efforts from things like the impeachment itself, to things like the criminal process, to things like the January 6th committee. And it's, again, an effort to do this in narrative form. We've now finished the first season of it. It's six episodes that take you right up to the point of the summer of last year when the January 6th committee was starting to do its hearings in public. remarkable array of people from, you know, members of Congress who were hiding in their offices during the riots, to journalists who have covered various aspects of the thing, to Trump's defense counsel in the impeachment, and to, you know, Doug Letter, who litigated all the House cases for the January 6th committee. So it's I think it's a genuinely different piece of work. And I'm delighted that your wife is enjoying it. She loves it. She absolutely loves it. I think it's helped her get through the past couple of

weeks. Okay, so let's talk about Trump's television confession. He sits down with Fox News's Brett Baier and explicitly admitted that yeah, he held on to boxes of subpoenaed documents and claiming that he couldn't turn the material over because he needed to go through them because his pants or something were in there. And his explanation, as others have pointed out, is inconsistent with prior claims that everything in the box is his. And as has been pointed out, black letter law violation of the Espionage Act to have unauthorized possession of a national defense document to willfully retain that document and fail to turn it over. There's also a special little known provision of the

Espionage Act that specifically prohibits storing national defense information with your pants. I mean, come on, that's just disgusting. So breaking news in the context of this, this is a story out of, I think it's out of Kansas City, ex-FBI analyst who kept classified information in bathroom like Trump is going to prison. See? Former FBI intelligence analyst from Dodge City, Kansas, who kept hundreds of classified documents at her home, including in her bathroom, was sentenced to nearly four years in prison by a federal judge in Kansas City on Wednesday for violating the same part of the Espionage Act that former President Donald Trump is accused of breaking. And there were no pants in that case. So it's going to get worse for Trump. It is going to get worse for Trump.

It is going to get worse. So what did you make of his confession to Bret Baier? So, you know, this is not the first time he has shouted a confession across the ether. And, you know, he's said everything from, I had every right to do it under the Presidential Records Act. These are mine, which is, of course, false. So he's said this stuff before, and I think every one of these statements is potentially usable against him. The thing about Trump, though, is that his stories are so inconsistent with one another, it's not clear to me what weight a confession like that would have before a jury, because, you know, everybody knows he'll say absolutely anything. That said, it's the kind of statement, exactly the kind of statement that any lawyer

for Trump would have an aneurysm upon seeing. It's exactly the sort of thing he shouldn't be saying. And, you know, when you finally get to present this case in front of a jury, the fact that he is completely unabashed about it makes it very hard for his lawyers to claim anything like it didn't happen, which is always your goal as a defense lawyer. We talked about this with Andrew Weissman yesterday. It does seem as if he's bypassing the legal process altogether, because as you point out, this is not helping him in court. No lawyer in America would tell their client to do what Donald Trump did. But Donald Trump is playing to the court of a public opinion,

isn't he? I mean, he's apparently not that worried about undermining his defense. And his strategy seems to be you delay the proceedings, or you tamper with the jury pool, or you just wait until you get back into the White House so he can pardon himself. Right. And all of that may be strategically wise if you are, A, super confident that you can beat Joe Biden, and B, super confident that you can delay things indefinitely. The problem with delaying things indefinitely is that ultimately you can't. And this trial will not happen before the election. That's actually not because of Trump's delaying tactics. It's just because of the volume of classified information involved

and the difficulty of managing that kind of volume of classified material. So he's not wrong that if he can win, he can make this case go away. But that's a big if, and I am never going to be the one to say there is no way Trump can win because God knows nobody who said that in 2016 looked good after the election. The major party candidate of either side can always win. And so we have to take the possibility of a Trump victory as seriously as a heart attack. That said, if I were Donald Trump, I would not want to stake everything on beating Joe Biden, because Joe Biden has already beaten me once. And the power of incumbency is real. And Joe Biden has, whatever Trump may think about it, a real record to run against. And by the way, Donald Trump is not the most popular man in America. And so I do think he's staking everything on an electoral win. And if I were responsible for his

defense, which thank God I am not, I would be very troubled by that because I do think eventually you have to walk into court and defend this case. And that is going to be a very hard thing to do under any circumstances. But having him shout from the rooftops, you damn right, I ordered the code red, doesn't make it any easier. You know, I'd be remiss not to point out, though, that, yeah, Donald Trump is extremely unpopular, but so is Joe Biden right now. A new Pew survey out showing that Biden's job approval rate remains under 40%. Actually, it's about 35%, 62% disapprove, 35% approve. This is one of those moments where you go, this is not a slam dunk in terms of the election, particularly even though it is a rerun.

And I remember saying back in 2016 that both parties had nominated a candidate that was absolutely unelectable, except that they were running against the other person. So speaking of the world of whataboutism, just briefly, your thoughts on the Hunter Biden plea bargain? Because of course, you know, MAGA world and virtually every Republican is saying this was a slap on the wrist. This is another indication of the two-tiered justice system. You know, if Merrick Garland thought that he could offload the criticism by having a Trump-appointed U.S. attorney do the investigation, giving him total authority. No, we don't live in a world in which you can cover yourself in any way. So your thoughts about the Hunter Biden case, was it a slap on the wrist?

Obviously, we don't know what Hunter Biden could have been charged with had Mr. Weiss decided to be as aggressive as possible. Normally, non-payment tax cases are generally prosecuted kind of mildly. And so I don't detect any reason to think this was handled with special kid gloves because the potential defendant was the son of Joe Biden, as opposed to some other rich guy capable of non-payment of, you know, $1.2 million in taxes, which, you know, by the way, that tends to be, you know, relatively under-prosecuted. I have no reason to believe that this was not handled responsibly. And I also, since it was honestly not involving the conduct of Joe Biden, it strikes me as sort of the kind of Billy Carter kind of thing. And I've always had an attitude toward the Hunter Biden stuff that the urge to get Hunter Biden, who is after all a somebody who's struggled with

addiction and who's, you know, lost his brother and had a, you know, kind of rough time of things. I've always found that a little bit ghoulish. And, you know, it seems to me if he's broken the law, he deserves appropriate prosecution, and I have no reason to think this isn't that. So I haven't delved into it all that much, and I don't see any reason to doubt the integrity of the disposition of the case. Yeah, and I think just going back to the point that I think can't be emphasized enough, this was a Trump-appointed special prosecutor. In effect, I mean, it was a Trump-appointed the U.S. attorney. Joe Biden or Merrick Garland could have removed him at any time. They gave

him complete authority over all of this. One other point on that, tying it to the Durham matter, there are actually two prosecutors who were investigating politically sensitive things, holdovers from the Trump administration, and Merrick Garland handled them both exactly the same way, which is just a John Durham and this U.S. attorney from Delaware who had the Hunter Biden case. And Garland came in and in both cases said, we're going to leave them alone. I'm not going to interfere. I'm going to protect their independence and they're going to do their jobs and they're going to come to whatever dispositions they came to. John Durham has publicly thanked Merrick Garland for, A, making that pledge and, B, honoring it. So you know, John Durham is blown the lid off of blah, blah, blah, blah, blah. And in another case, they're crying foul. Well, what's the difference? In one case, they have a report that for some reason they like. And in another case, they have a plea deal that they think is too lenient, though they don't know what the facts would support. And so I would just say that the criticism is entirely political. It has no basis in any sense of the conduct of the investigation

in either case. And in both cases, we have exactly the same behavior on the part of Merrick Garland, which is to leave in place Trump-era prosecutors who were handling stuff close to Democrats' heart and to Republicans' hearts. Okay, let's talk about the John Eastman hearings. This is rather extraordinary. Eastman, of course, one of the architects of the coup and the fake elector plot, is fighting to keep his law license in California. There may be criminal charges looming for his efforts to help Trump nullify the election. Yesterday, Greg Jacob, who was a lawyer for Mike Pence, testified over Zoom about how he was in the middle of a pointed email exchange with Eastman on January 6th when he heard the ear-splitting sound of breaking glass as rioters

using a police shield shattered a window. Jacob was about 35 feet away. He then sprints back to the Senate chamber, along with the aide who carries Pence's nuclear football. And as they caught their breath, Jacob typed out to Eastman, thanks to your bullshit, we are now under siege. So give me your sense of what's going on with John Eastman. I mean, Eastman and his supporters are saying, look, I was just on with John Eastman. I mean, Eastman and his supporters are saying, look, I was just, I'm an advocate. I'm, you know, testing, you know, some various legal theories, you know, that's not grounds for disbarment. But on the other hand, Eastman went far beyond simply throwing out legal theories. So what do you think about that

particular case? What do you think might happen? So it takes a lot to get you disbarred in California, but I would think that coming up with a garbage legal theory to support the overthrow of the constitutional order that are backed by facts that you've and your side has made up should certainly be enough to warrant professional discipline. I think in the long run, these professional discipline cases are very important because they are the way that the legal profession shows that there are, quite apart from if you get indicted, quite apart from what liability you may have if you defame Dominion voting systems or make up really crazy stuff that causes civil liability, that there are just limits to what you can do as a lawyer, and that there are professional limits to what the organized bar will tolerate. Eastman, it seems to me, has crossed several really important lines.

One is lying. The other is advancing arguments that he knows or should have known to be not merely wrong, but kind of wildly wrong. And, you know, the most prominent example of this, which Judge Carter called him out about in the January 6th committee litigation was when he described what he was arguing as only requiring a minor violation of the Electoral Count Act. And like most lawyers don't urge conduct that they acknowledge to be a minor violation of the law, leaving aside whether the word minor is a correct understanding of the magnitude of the violation he was urging. So I think these cases are very important. My

colleague Quinta Jurecic is following all of the professional responsibility cases very closely and knows them better than I do. But I do think the way a profession polices itself, particularly a profession that is supposed to be, no pun intended, the bulwark of the law, right? These are, after all, lawyers. And if they cannot be relied upon not to make the most democratically toxic arguments based on flat-out lies, like what does the concept of law mean as a bedrock and kind of tectonic plate language for a democratic society? So I take them pretty seriously, these cases. Eloquently put, Ben Wittes is Editor-in-Chief Lawfare, senior fellow in governance studies at the Brookings Institution, and my co-host for our new series, The Trump Trials. Ben, we'll talk again next week.

I'm excited about it. And thank you all for listening to today's Bulwark Podcast. 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. Music .