The Bulwark Podcast - Wait, Is This Guy a Freakin' Criminal?

Episode Date: June 8, 2023

Jack Smith will need a barn burner of a case, rich in facts, and one that holds up under the scrutiny of conservative legal analysts on Fox. Plus, Pence is simultaneously for the rule of law and letting Trump slide. Ben Wittes is back with Charlie Sykes for The Trump Trials. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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. How much legal trouble is Donald J. Trump really in? Are indictments imminent? What will the charges be? Will it make any difference in the race for the presidency? Welcome to the Bulwark

Podcast. I'm Charlie Sykes, and this is our new episode of our 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, the author of the invaluable dog shirt daily newsletter. Ben, welcome back. Thanks. It's been a big week. And it's going to get bigger, especially when we have the signs of the apocalypse over New York City. Do you have the smoke in DC? I believe right now the air quality in DC is even less healthy than in New York. It is amazing.

And although the sky is a little bit less orange, I think. I just want to say that if I were Donald Trump, I would be pointing out that the Justice Department is contemplating or preparing for my indictment, and the heavens have darkened in response. Okay, that would be one interpretation. I mean, there's a lot going on right now that's very, very strange. I mean, we have this conservative revolt in the House, which has resulted in they want to punish Kevin McCarthy.

And so they've shut down Congress. They basically just put it out of business. That's one story. Meanwhile, the Ukrainian counteroffensive long awaited is apparently on. Pat Robertson, an icon of the evangelical right, died at the age of 93. And as a sign of times, we had a Republican candidate for president, Asa Hutchinson, who felt it was necessary to issue this clarification. I'm going to read this to you, Ben. The GOP should clarify that there is no pledge to support a nominee if they are found guilty of espionage or a serious felony. Donald Trump is the target of an

ongoing criminal investigation, and he should step aside and put the good of the country above his candidacy. So, yes, you have the former governor of Arkansas raising his hand saying, hey, by the way, could we just clarify that if you've actually been convicted of espionage or a serious felony, we're not really obligated to support you. I mean, you think? You know, it's one of those things that you wouldn't have thought you needed to say, but I do think it's a good challenge to Romney McDaniels, who does seem to be taking the position that all Republicans in good standing are obligated to support the candidate

of the party, even if that person is facing multiple felony indictments. Okay, so we'll talk about Mike Pence's fancy dance about all of this a little bit later, but let's just dive right into this. We have multiple outlets reporting that Trump's lawyers have been told that he is the target of this investigation into the Mar-a-Lago classified document case. Is an indictment imminent, Mr. Wittes? Yes, it is imminent. And I think the signs of that are very clear. First of all, multiple press reports have indicated that Trump received a target letter. For those who are not familiar with the way federal prosecutors work, you only issue a target letter to somebody who you have already made a decision that you

intend to indict. That's actually the meaning of the phrase target in this context, is somebody whom federal prosecutors intend to seek a grand jury indictment of. And so to report that Trump has received a target letter is to report that federal prosecutors intend to bring a case against him. Secondly, as a general matter in federal practice, a target letter precedes an indictment by a short period of time. It's not like you issue a target letter and then you do the investigation. Generally, prosecutors will keep people as what are called subjects of an investigation for as long as they can. A subject of an investigation is somebody whose conduct is at issue, whose conduct is under investigation at some level, but who's not merely a witness,

but there has been no decision to charge them. Once you are a target, they intend to seek an indictment of you, and they usually move you to target status right before they bring the case. The final piece of evidence that an indictment is imminent is this meeting that took place on Monday. Normally, when you designate somebody as a target in a white-collar investigation anyway, where there is no flight risk or no fear that the person's going to go on a mass shooting or something, you give their lawyers a chance to come in and try to talk you out of it. And from the prosecutor's point of view, this is a device to preview some of the defenses you're going to see at trial. You see what the best argument they can make is, and maybe that causes you to strengthen the way you frame your

case or something. That happens as a general matter immediately before an indictment. So I think the fact that that meeting happened this week indicates that we are looking at an indictment this week or next week, if I had to guess. So when you say imminent, you're not using that word in the way that Fulton County DA Fannie Willis used it when she said back in January that her charging decisions were imminent. And of course, it's June now. So imminent means like today, tomorrow, soon, any minute now. Right. So Fonny Willis used the word imminent, I think, to mean coming soon, and then realized she had a lot more investigation to do. I think she misspoke or something got in the way, but that is not the sense in which I mean imminent.

I mean imminent in the dictionary sense of the term, which is about to happen. Okay, so I'm going to break this case down. Big question this week is, why has the venue been shifted to South Florida? We're getting these reports from the Washington Post that looks like that is the focus of the indictments. What is Jack Smith doing? Why are there two grand juries looking at the same case, and where will the charges come from? We don't know the answer to the why or internal discussions question, but we can speculate about it a bit responsibly, I think, based on what we know. So venue is a complicated subject in the law, and I don't want to go into the details of it. There's an excellent article on Lawfare about

venue in this case that was written by one of the, among other people, by one of the Mueller prosecutors, Brandon Van Graak, that people should take a look at if they want the details on venue in this instance. But suffice it to say, if you are a federal prosecutor, you would like to bring this case in Washington if you can. The district bench in Washington is of a very, very high quality. As we saw with Judge Eileen Cannon in South Florida, the district bench is of a little bit more erratic quality. In addition, the jury pool is more favorable to prosecuting Donald Trump in the district than it is going to be right near his home in Mar-a-Lago. That said, as a general matter in federal cases, you got to bring the case with a certain degree of latitude

where the crime took place. And there are parts of this case that took place in DC. For example, if Donald Trump purloined material from the White House or lied to NARA, the National Archives, in letters that were sent to Washington, you can say, well, all right, that's D.C. But the gravamen of the activity in the case, the storing, hoarding material at Mar-a-Lago, the obstructions of the federal investigation, the showing the documents to people, all appears to have taken place in South Florida. And so what I infer has happened, and this is an inference based partly on the Washington Post reporting and partly on my own instincts. We know that at some point, Mr. Smith determined that he was going to have to bring a bunch of the case in Florida. I think that probably was reluctant on his part, that he probably spent some time trying to figure out whether he could approve venue in the district. Ultimately decides that he can't.

The entire investigation was done here before a grand jury. And so you then have to open proceedings before a grand jury down there if you're going to bring a bunch of the case there. That seems to have happened in May. And I expect that they will bring the body of the case there, but anything that they can bring in D.C., I expect that they might. So that's my best guess. So there could be indictments coming both from South Florida and from the grand jury in D.C.? It's certainly possible, particularly if you have evidence that related to the removal of the documents in the first place, as well as to, say, false statements to the National Archive, right? There are individual components of the case that may be more appropriate

in the district. Okay, so let's break down, again, we don't know what the exact charges will be, and maybe people by the time they listen to this podcast will know this. So I thought that Andrew Weissman and Ryan Goodman from Just Security did a nice job of sort of breaking down 10 things to look for if Trump is indicted by the DOJ, actually 11 things to look for, including the distinction between retention versus dissemination. I mean, let's just talk about some of these, whether or not he's going to be charged just for having the documents or whether or not the dissemination is going to be a key element of the case. So the Espionage Act prohibits three different things that Trump could be accused of. One is the taking of documents, right? So if you are a government employee, including the president, and you are not entitled to remove the material from a classified setting, and if you're president, you getident, you don't, right? And so there's this point at which they

remove a whole lot of documents from the White House and they bring it to Mar-a-Lago. Now, the first question that I'm looking for is, was that removal intentional? Were 300 classified documents mixed up in stuff that they were moving and it was an accident and it was done at the staff level, kind of like what appears to have happened with Mike Pence and probably what happened with Joe Biden as well, though we don't have resolution of that. Or was this trophy hunting by Trump or was it stealing stuff for some other reason, right? So were the documents mistakenly removed, not a crime, or were they stolen, a crime? That's the removed, taken issue. The retention issue is a separate crime. Now, these are all in the same statute, but they could theoretically

be charged separately. If you take a bunch of stuff by accident, we pack up all the boxes, the classified documents are in the material, like with the White House souvenirs and the other documents and the MAGA flags, right? And you pack them all up to Mar-a-Lago and and then you're unpacking, and you discover, oh my God, there's 300 classified documents here. You have a positive obligation to give those back. So what happens when you discover that you have them, if you discover that you have them, and you don't return them? That's the retention issue. A subcategory of the retention issue, which is the area that we know they are extremely vulnerable, is at some point the National Archive gets in touch and says, wait a minute,

we think you have a lot of national security information. You need to return it all. And they willfully do not return some of it. I don't have the statute in front of me, but there's specific language in the statute about retention when you are required to return it. That's a third possible espionage offense. And then the most serious of them, because it's the one that actually looks like spying, right, is dissemination of the material to third parties. Because remember, if you think about what the Espionage Act is about, it's about protecting the material from dissemination. So the reason you are not allowed to take classified material home is not that they're

afraid that you know the classified material because you were cleared to know the classified information. It's the possibility of dissemination. So dissemination is really the completed problem that the whole statute is designed to prevent. And there are basically three types of dissemination. The most serious, which is called espionage, is dissemination to a foreign government or actor, right? That's spying. I don't think that Trump is suspected of that, though there's clearly been some investigation of some matters that relate to that, like his business deals with the Saudis and stuff. That said, there's been no evidence that I've seen of dissemination to foreign governments. The second area is general spillage. You give it to the press, right? Dissemination, that's the classic leak situation, right? You have classified information and you give it to

the New York Times. And then the third area, these are legally the same, but they're functionally a little bit different, is that you give it to some individual who is not entitled to receive it, who's not cleared. And it's very clear from the tape that has been described in the press that Trump at least contemplated doing that, wanted to do that, that he knew that it was not proper for him to do it. It will be very interesting to see whether the charges include any dissemination allegations. That would be a much more serious offense than mere retention. Well, another possibility, of course, is that Jack Smith could decide not to charge under the Espionage Act and charge only obstruction offenses. And obviously,

that would differentiate Trump's prosecution from the facts in the Biden and the now-closed Pence investigations, which involve improper possession. So it is possible that he would go just for obstruction. Weissman and Goodman write, wildcard if the Justice Department alleges that Trump or his aides were involved in tampering with Mar-a-Lago video surveillance footage, that is as acute a form of obstruction of justice as the allegedly false June certification that represented that a diligent search for responsive documents had been performed and all of them had been returned. So it is possible. And again, these things are to watch. Does he charge under the Espionage Act or could he just go for slimmed down obstruction only? What do you think? So I think it's very unlikely that he would go for obstruction only. And frankly,

in my view, it would be a sign of weakness. So as a general matter, a prosecutor wants to and should want to charge obstruction and leave out the substantive offense. Then you set yourself up for lots of national review type saying, this is just a process crime. They couldn't prove the Espionage Act stuff, so they got him on some 1001 lies, or you get the Mike Flynn argument, right? And I think that's undesirable. I think if you're Jack Smith here, what you're looking for is to deliver a barn burner of a case. And to me, again, based just on the press coverage and the information that we know they have been seeking and the testimony that they've been taking, I think the case looks something like this. Donald Trump, willfully or unwillfully, I'm not sure which, absconds with hundreds and

hundreds of pages of classified information. He boasts about it to people. He maybe shares it with people, dissemination. We're not sure about that. We know he boasts about it to people. He is personally involved, we think, in the hiding of this information. Then when NARA comes to get it back, at his direction, they lie about it, and they contend it has all been returned when they know that it has not, and they take active obstructive steps to prevent both NARA and then later the FBI and Justice Department, up to and including, I don't know if they're going to be able to prove this, flooding the camera room with the Mar-a-Lago swimming pool

water. The Rosemary Woods moment. Exactly. So I think if you're Jack Smith, you don't want to be Alvin Bragg here. You want to come in with a case that Andy McCarthy is not going to be American people why this is happening, why it is important that it is happening, what the stakes are, and they need to have a narrative. And so that is the speaking indictment. That's one of my big questions. Will he do what Alvin Bragg did with just listing the statutes, essentially, or is he going to do

exactly what you described? Tell us this story of what Donald Trump did. He will certainly not do what Alvin Bragg did. And there are two reasons for that. The first is that what Alvin Bragg did is sort of common in New York prosecutorial practice, I'm told by people who've worked in that office and who've practiced in New York. But it's not common in federal practice. In federal practice, when you're dealing with a high-profile individual, you lay it out. You call it a speaking indictment. That's sort of what prosecutors call it. In this case, you don't want to behave politically as Jack Smith. You really, really don't. You want to be extremely responsible. But you also have to be aware that it's not just a speaking indictment that you want here.

It's a speaking to Republicans indictment. And what you want to do is put enough facts on the record, tell the story in a clear and full enough way that it breaks through so that on Fox News, they have to have the conversation, wait a minute, is this guy a freaking criminal? And that is something that Alvin Bragg has not been able to do. The entire conversation was about these supposed defects in his indictment and the charging manner. Here, I think you want this indictment not just to speak, but to speak really loudly. And that means it has to be fact perfect. Anything in it that you can't prove is going to come back and bite you in the ass. But it also has to be fact rich. Laying out the evidence, because we have a lot of hard evidence, the audio recordings, the written documents, the emails, the letters, the notes, all of that.

Every fact has to be true. A speaking indictment can provide all. And it should read like a novel. Okay. That's how I would be thinking about it. But look, he's a federal prosecutor and I'm not. So the other things that we don't know at this point, we don't know whether or not there is a conspiracy, whether other people will be charged as part of this. That is certainly conceivable, especially now that they're moving the venue to South Florida. But the big questions still also are what exactly is in this classified information?

We have some hints we don't fully know. And finally, what is the motive? Why did Donald Trump do this? What was so important for him to put himself in this legal jeopardy, which he probably didn't expect? So what is in those documents and why did he keep them? And I think that's going to be relevant because if it turns out that they're a bunch of nothing burgers and stuff, you know, I mean, obviously that's going to have, will generate certain

blowback. On the other hand, if it does turn out that they are military plans or that they are records about nuclear capacity, I mean, that's a BFD and that will be much, much harder for the Fox News folks to dismiss as trivial. That's right. And I also think that the why question is really important. So, you know, the whole thing has an air of silly trivia that got out of control.

If this is his love letters with Kim Jong-un that he's keeping for sentimental trophy reasons than if there are substantive documents that he's keeping for reasons that he has something he wants to do with them. And one of the significant features of the conversation about the Iran war plans document was that he seemed to be retaining this material. Having retained this material, he wants to use it for Mark Meadows' autobiography, right? He wants to use it for some strategic purpose. That is really, really a no-no, right? The ultimate no-no is you want to use it to give to foreign governments in exchange for $2 billion for your son-in-law, right? But I don't actually believe

that's what happened. But what he was doing with them, were they just sitting in his desk, or are there a number of instances like this Meadows autobiography where he's using them, where he's talking to people about what he wants to do with them, what the purpose is? And I think that motive question will shape a lot of the way the indictment is presented, to the extent that they know the answer to it. So one thing you mentioned a little bit earlier is kind of haunting me to go back to this change of venue to South Florida. Could this case be heard by Eileen Cannon, the super Trumpy judge who embarrassed herself earlier on this case? It is more than theoretically possible. But of course, they are very aware of Eileen Cannon because because a lot of this was before Special Counsel Smith was

appointed, but they were the victim of her antics. So I imagine they will, if they can, without, you know, you don't want to look like you're forum shopping, and you don't want to create arguments for Trump that will then delay things about whether you're in the right court. So what I think it's fair to say, if they can avoid filing in her courthouse, they will. If they cannot, they will have her to deal with. Hopefully, she has learned a lesson from the absolute spanking that the 11th Circuit, that the conservatives on the 11th Circuit, including Chief Judge Pryor, gave her in response to her prior behavior. But I would not relish being the Office of Special Counsel having to try this case in front of Judge Cannon.

So we also mentioned Mark Meadows, and there was a lot of speculation, a lot of rumors yesterday, unconfirmed rumors that he might have flipped. What we do know is that apparently he did testify before the grand jury on the January 6th case. He would obviously also have information about the documents as well. I think it's pretty obvious how important it would be if they actually had the cooperation of Mark Meadows, because by every account, Mark Meadows was in the middle of everything. And when I say everything, I mean from the end of the election through January 6th, being in the room, knowing what people were saying, what they were thinking, why those documents were moved out. So what do we know and what do we not know about Mark Meadows? So we know relatively little. We do know that he testified. Now, there are many levels at which one can be said to be cooperating. So one level of cooperation is you get called in front of the

grand jury and you answer questions and you don't lie, right? And if that happened, a lot of the issues that you've described are satisfied, right? Mark Meadows is probably the single most important witness in the January 6th matter. He's much less important in the Mar-a-Lago matter, but he's a very important January 6th witness and potential defendant, by the way. So, you know, if he shows up at the grand jury and answers questions, that's a big deal. Unlike the January 6th committee, people notice are not stiffing these grand jury subpoenas. And the reason is civil contempt, right? So the January 6th committee can hold you in contempt, but then it needs the Justice Department to file a criminal case to enforce it. That's not true of a grand jury.

If you refuse to appear before a grand jury, the judge will send a federal marshals to arrest you and lock you up in jail until you cooperate. And some of our listeners may be old enough to remember Susan McDougal going into contempt rather than testifying against Bill Clinton. And she spent, you know, like a year and a half in jail or something. And so it's easy to bluster when the January 6th committee calls you to testify or subpoenas you to testify and just not show up and kind of roll the dice and see what happens. But in the criminal context, you know what's going to happen if you stiff a grand jury. And so when push comes to shove, Mark Meadows doesn't do it. That doesn't mean he is volunteering information, right? It doesn't mean he's cooperating at the level of, I know stuff, I will tell you. It merely means he's cooperating at the level of not refusing to answer questions and answering them truthfully when asked.

So I think we really don't know what the story is with Meadows at this stage. No, I don't think we do. The British newspaper, The Independent, had an unconfirmed story challenged by a lot of other sources that Meadows had cut some sort of a plea deal to plead guilty to certain offenses in return for immunity on others. So later in the day, and again, nobody replicated that. There were a lot of denials about that story. And the journalist for The Independent tweeted out later Wednesday that he'd spoken to Meadows' attorney who denied that Mark Meadows would enter a guilty plea,

but he did not address the question of immunity. Okay, so let's just move just for a second. I want to talk about where we're at on January 6th. We had the former Vice President Mike Pence yesterday who gave a rather strong denunciation of Donald Trump's conduct on January 6th, forcing him to choose between the Constitution and loyalty. It was actually one of Pence's strongest statements. But then later in the day, he's sitting down with, I think he's standing up in this particular case, with CNN's Dana Bash at one of their town hall meetings. And she's pressing him on the question of, okay, you've said that he is unfit for office. What about word that we're getting now that an

indictment might be imminent? What do you think about that? And this is how Mike Pence is trying to walk this tightrope. This kind of action by the Department of Justice, I think, would only fuel further division in the country. And let me also say, I think it would also send a terrible message to the wider world. I mean, we're the emblem of democracy. We're the symbol of justice in the world. And the serious matter, which has already happened once in New York, of indicting a former president of the United States sends a terrible message to the world. I hope the DOJ thinks better of it and resolves these issues without an indictment. Sir, I just want to clarify, what you're saying

is that if they believe he committed a crime, they should not go forward with an indictment. Sir, I just want to clarify, what you're saying is that if they believe he committed a crime, they should not go forward with an indictment? You just talked before about committing to the rule of law. Let me be clear that no one's above the law. Okay. But with regard to the unique circumstances here, look, I had no business having classified documents in my residence and i took full responsibility for it president biden had no business having him in his residence from when he was vice president as well and the same with former president trump but i i would just hope that there would be a way for them to move forward without the dramatic and drastic and divisive step of indicting a former president of the United States. We've got to find a way to

move our country forward and restore confidence in equal treatment under the law in this country. So, Ben, what do you make of that? Well, there are two important things that Mike Pence didn't say in that. One is, does he think Donald Trump committed a crime? And notice that he didn't say, I don't believe Donald Trump committed a crime. The second thing he didn't say, and he struggled with this, and Dan Abash kind of calls him on it, is, are you saying there should be impunity for former presidents when they commit crimes? And his answer is, I would hope there would be some other way to resolve

it. Well, I actually don't. I think it's a good thing that we've never had to prosecute a former president before. By the way, the only reason it's true is that Richard Nixon was pardoned by Gerald Ford. Jaworski was prepared to indict him, and the grand jury wanted to indict him. So Nixon certainly would have been indicted, but for a presidential pardon. So the rule is a rule with certain important exceptions. And of course, two former vice presidents have been prosecuted, Spiro Agnew and Aaron Burr, at least. So I don't think the rule is quite as firm as Pence seems to say it is. But look, to the extent that it is, I am grateful to the 44 other non-criminal presidents who did not commit crimes after they left office. And to lay that at the feet of prosecutorial restraint assumes that

there was this sort of unprosecuted crime wave among former presidents. Well, I just don't know. What did Ronald Reagan and Jimmy Carter do after they left office that warranted prosecution in his years out of office? Was Harry Truman, you know, robbing liquor stores? You know, come on. And so, like, most presidents don't live that long after they leave office because they tend to be older. They don't tend to be engaged in crime sprees. Donald Trump leaves office and he's committed multiple felonies since leaving office. Is Pence really suggesting that should be merely subject to political criticism? So I have some sympathy for the predicament Pence finds himself in, where he did a courageous thing and is loathed for it by Trump's supporters. He wants to

appeal to those supporters, which is, of course, a fruitless endeavor. So he can't be as full-throated about denunciation of Trump as you sort of suspect he would like to. That said, he talks himself in bizarre circles, and what he's saying doesn't really make any sense. No, and I think that was one of the problems that he had last night, and he was challenged on this by Dana Bash, who, again, did a really, really good job last night. So on January 6th, he was very, very forceful earlier in the day. I mean, he said some of these things before, but he said President Trump's words were reckless. They endangered my family and everyone at the Capitol. But the American people deserve to know that on that day, President Trump also demanded that I choose between him and the Constitution. Now voters will be faced with

the same choice. I chose the Constitution and I always will. And then he says, anyone who puts themselves over the Constitution should never be president of the United States. And anyone who asks someone else to put them over the Constitution should never be president of the United States again. And then later in the evening, he is asked by Dana Bash, well, would you support him if he's the nominee? And Mike Pence, who has claimed that he was a Christian, a conservative, and a Republican in that order, basically says, yeah, I'm a Republican first.

I'm going to put on the jersey because party loyalty over everything. And I would support Donald Trump for another term in office. If he wins the nomination, how do you square that circle? And who does he make happy by doing this? Because Megaworld is going to hate him no matter what he says. Chris Christie's like, okay, I got nothing to lose. I'm going to throw this out there. If I say you're completely unfit for office, I'm meaning that you're completely unfit for office. But Pence and other Republicans are sort of still dancing around that. He's between a rock and a hard place on this, but he's wedged himself. He's put himself there. Yeah. And so it's hard to have too much sympathy for him. He also doesn't ever acknowledge that the choice that Trump demanded of him on January 6th,

trues between me and the Constitution, that's the same choice he gave Jim Comey at the loyalty oath dinner. And Mike Pence, when that came out, sided with Donald Trump. There are a million incidents over the course of the Trump presidency in which he put people in the position of choosing between the Constitution and him. And Mike Pence did not really have a problem with it until it was him on January 6th. And I honor what he did on January 6th. I really respect it. But I'm also bewildered by the fact that it took him until January 6th to notice what Donald Trump was doing and to his pretense that the Trump administration, what he likes to call the Trump-Pence administration, was this honorable and effective and serious thing until the day it put him in that position. You know, what about Helsinki?

So here's an interesting thing that's going on with Mike Pence and why it's so difficult to sort of parse out exactly where he's going, what he thinks his lane is here, because, again,, he was very, very strong on January 6th. And then in the evening, he was saying he would support him anyway and shouldn't be indicted. But then this morning, I don't know whether you've seen this, the Penn Super PAC has put out an ad hitting Trump. And it is a remarkable ad. Part of the script here is a weak man appeases a mob, a man of courage and character stands up to them. That day, one man failed the test of leadership while another stood tall. I mean, it is a direct attack on Donald Trump juxtaposing the two. This is the Pence super back.

Let me just play the audio of this because this is the kind of thing you might have expected from, say, the Republican Accountability Project or something like that. And yet Mike Pence is launching this ad. So he's doubling down on making one sixth central to his attack on Donald Trump. Let's play the audio of this. A president begging him to ignore the Constitution, a mob shouting for him to die, and an anxious nation watching for one man to do what's right. A weak man appeases a mob. A man of courage and character stands up to them. That day, one man failed the test of leadership, while another stood tall. And since then, this so-called leader has continued to abandon our conservative principles. Now, with a woke mob trying to take away our freedom, we need a president who won't flinch, who won't try to cut deals with our values. A president with the courage and the faith

to lead us through turbulent times and keep America the beacon of freedom for all mankind. Mike Pence for president. Committed to America PAC is responsible for the content of this advertising. So, damn. I mean. So, I think that would be a terrific ad for Liz Chang. All the praise of Mike Pence for what he did. But the problem with that ad for Mike Pence is that, first of all, this Republican primary is not going to be won by campaigning on having

done the right thing on January 6th. It's likely to be won by people who record videos with the January 6th convict tabernacle choir. It's not going to be won by saying, I did the right thing on January 6th. Moreover, it only begs the question, then why have you done so little since then? Why have you tried to keep a foot in both worlds? Why aren't you Liz Cheney? Yeah, why did you not testify before the January 6th committee? Why are you still saying you would support him in a general election?

Look, I'm glad he's running this ad. Somebody ought to run this ad. I think it's a good ad. So pat on the back. I'll give him a cookie for that. But I do think you're right. And I think that you're going to see that playing out. He just has such, he's almost schizophrenic when it comes to this issue, because at moments like that, listening to that ad,

he recognizes one of the central moments in his history and the real dividing line between him and Donald Trump. And then the rest of the time, he has been backpedaling and he's been distancing it and he goes back and forth on it. I mean, there's a real vacillation. Am I going to embrace that moment and explain how important it was? Yes, sometimes. Will I back away from it and downplay what should be my signal moment in my legacy? And he does that too. So who is he satisfying with all of this? But again, I'm glad he's running the ad. I agree with you. That's not going to win him Iowa. But you know, it is interesting that over the last 48, 72 hours, you've had Republicans punch Donaldeney go after Donald Trump on January 6th. So maybe we're entering into, I don't know, I mean, maybe it's going to be the same old, same old. We have the indictments that are imminent. We don't know what the fallout's going to be, whether or not the

cumulative weight of that is going to weigh in on them. But we are seeing Republicans willing to punch at Trump in a way that was not totally predictable, that they would hit him and hit him this hard. I agree with that. I also think the Georgia case matters here for a very specific reason. So we don't know what's happening with the federal January 6th investigation. Unlike the Mar-a-Lago investigation, it has been something of a black box. We see people going in to testify. We kind of contract the subpoenas a little bit, but we really don't know where they are. We do know where Fannie Willis is, even if she doesn't quite understand

what the word imminent means. We know she's bringing charges this summer because she's essentially said that. So I think if you imagine that this indictment in Mar-a-Lago comes out and it is some kind of a barn burner that tells a real Mar-a-Lago classified document story, and then a month and a half from now, you get an election interference story focused not on January 6th, but on efforts to overturn the Georgia election. You are going to have two Republican candidates in Pence and Christie in particular, Christie being much more pugilistic and full-throated about this, making the case of Trump's unfitness, even as three different prosecutors in three different jurisdictions are telling the story with admissible evidence of his behavior post-presidency, of his behavior after the election, and of the scumminess of his behavior toward paying off porn stars. And also, I think that the conventional wisdom is that nothing ever matters, but there's some

polling data that would suggest that maybe some of this could change the dynamic. So, for example, I think you got a YouGov poll recently, kind of a deep dive, and this relates to a second Trump indictment. 65% of voters say that taking highly classified documents and obstructing efforts to retrieve them is a serious crime. That's a big number. Two-thirds of Americans think that's a serious crime. 63% say that committing a serious crime should disqualify a candidate. 50% say both of those things. So the electoral threat of another Trump indictment is a real thing. And you are seeing, you know, I mean, so, but again, we don't know. This is,

to say it's uncharted territory is understating it rather dramatically. Right. And there's a very important element of the public opinion data that we don't have. We have seen Trump's resilience against investigation and And the whole Russia investigation, the impeachment stuff, but we have never tested what happens when you actually have a prosecution of Donald Trump and how that affects public opinion. And I don't know the answer to that. I'm not saying there's a breaking point after which he gets abandoned. I'm really not saying that. I am saying that a federal prosecution for multiple felonies is a very serious thing, and it will occupy a lot of mind space. And it's different from the Mueller report coming out and him declaring total exoneration

and people like you and me reading it and saying, wait, wait, it's a little bit more complicated than that. There's these damaging facts and there was a Trump Tower meeting and Trump Tower Moscow, right? And all of that stuff gets lost. But when you have the federal government bringing a criminal case against you, I would not be surprised if that actually had an effect on people's perceptions of electability.

I don't think we should rule that out. Okay, one last question about this January 6th investigation, which we, again, it's pretty much a black box. We're now hearing that Steve Bannon has been subpoenaed by the grand jury in connection with the insurrection. And apparently the subpoena was issued late last month, separate from the classified documents case. We kind of know that Steve Bannon doesn't want to testify. I mean, he's already been convicted of contempt of Congress after refusing to testify before the January 6th committee. And for reasons that are not totally clear to me, he is still walking free. But why do you think they are doing this? Is he a target of

the investigation? What is your sense? When you heard that, what did you think? Well, he's almost certainly a subject of the investigation. See earlier part of the conversation, prosecutors keep people as subjects as long as they can. And there's a reasonably strong norm against compelling targets to appear before the grand jury. So once you've designated somebody as a target, they would presumably assert their Fifth Amendment rights before the grand jury. So I assume he's a subject. I, first of all, doubt very much that he will stiff this grand jury the way he stiffed the committee because of the civil contempt power that we discussed earlier. Why would you want to talk to Steve Bannon? He was really involved in the events that led to

January 6th, and I suspect his conduct is at issue. I also suspect he's a critical witness in a lot of respects, but about what, I don't know precisely. Yeah, I'm skeptical that he would provide them with much information, but also I'm skeptical that he will show as much bravado in dealing with a federal grand jury as he did with Congress. I think this is, again, another illustration of the big difference between thumbing your nose at Congress and thumbing your nose at a federal jury. Ben Wittes is editor-in-chief at Lawfare, senior fellow in governance studies at the Brookings Institution, and my main man on our Thursday's Trump Trial podcast. Ben, thank you so much for coming back. We will do this again next week. Great pleasure, as always. And thank you all for listening to today's Bulwark Podcast. I'm Charlie Sykes. We'll 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. you