The Bulwark Podcast - We're Talking Real Money

Episode Date: February 1, 2024

Trump hasn't re-defamed E. Jean Carroll, so it basically takes about $83 million to get him to shut up.  Plus, the big risk in the Georgia case, MAGA will be rooting for San Francisco, and Charlie talks about getting off the hamster wheel. Ben Wittes is back with Charlie Sykes for The Trump Trials.

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and there are so many of them. But this week, it feels like more like waiting for Godot. We're waiting on Judge Ngorin, at least as we're recording this. We're waiting on the D.C. Circuit Court of Appeal. We're waiting on Fannie Willis to come up with her response. We're waiting on Judge Eileen Cannon to basically do anything. So we're kind of doing a lot of waiting. Ben, how are you, by the way? Happy Thursday. this state of suspended animation, and it is aggravating. I got an email from one of your colleagues yesterday, which just had subject line, what's up with the DC circuit? And I was like, I don't know. It's frustrating. We could pretend to know. I mean, we have a podcast, so we're supposed to pretend to know, right? trying to a very careful negotiation to keep the court unanimous is one possibility. And the other possibility is that Judge Henderson, Karen LeCraft Henderson, is writing either a lengthy dissent or a lengthy concurrence that is taking her some time. And using a quill pen. Yes, and doing it in a slow fashion. Dipping it in ink. I honestly don't know which is more probable. My impression from the oral arguments was that

the three judges were not that far apart. I did have the impression based on the briefing schedule that they were quite aware of the time exigencies here, although, of course, nobody is allowed to speak the reasons for the time exigencies, but that they were aware of them. And so I'm surprised by how long it's taking and a little bit puzzled by it. Well, we're also waiting on Judge Ngorin, who had been widely expected to release that ruling in the New York fraud case yesterday. Can't really spend a lot of time on it because by the time this podcast comes out, we may know what he's doing. And again, this is all speculation. He didn't meet his own deadline.

There are kind of these new accusations about deficiencies in the Trump organization's financial reporting. Is that a possibility? I mean, this is a, the independent monitor was appointed back in 2022, flags this potentially significant irregularity in this report in the company. So could you kind of refresh people's memory and what that might be? Well, so there is a, an independent monitor who has been appointed to, sure that assets are handled appropriately, given that the attorney general is asking for a fine that would require a lot of their liquidation. And she's also asking for the business licenses of the relevant players to be revoked, or in some cases permanently, and in some cases, for lengthy periods of time.

And so there's some actor other than the current management of the Trump Organization, which, remember, has been, people forget this, but convicted as an organization of criminal offenses, right? And its chief operating officer has, or its chief financial officer has pled guilty. So, you know, this civil case is only one of their problems, right? And a lot of these assets at some point, assuming these judgments stand up on appeal, are going to be used to satisfy the judgment. And so the independent monitor is there to make sure that they are not liquidated and or mismanaged in the meantime. So, you know, that could be one of the explanations for the delay. The other explanation is more prosaic and probably explains the D.C. Circuit

too, which is writing good judicial opinions is actually hard and sometimes takes a little longer than you want it to. And when you're dealing with a once and maybe future president of the United States, you do want to get it right. And you do want to, you know, particularly if you're going to take hundreds of millions of dollars of his assets away. So the stakes are a little bit lower for the DC Circuit, which is immediately going to get appealed and, you know, and is in any event not going to determine whether Trump is guilty or not. But Judge N. Gorin is going to produce an opinion with a giant round number that says, you know, this is the amount of money that the state of New York gets from New

York. And that's going to be a huge deal when that number comes out. It's very likely to dwarf the $83 million that E. Jane Carroll got last week. And so, you know, you do want to be careful when you're writing that opinion because you really don't want to be the judge schlub who issues a big judgment and then gets reversed by the court of appeals. Yeah, I think applying Occam's razor, these are the most obvious explanations, is that they want to get this right. They want to make sure that it is ironclad. They're looking over their shoulder for the appeals courts and all of that. So I think that seems reasonable. So there's really no point in speculating about it until it comes out. So I want to talk about the Eugene Carroll verdict coming down. And I have some questions

to you about just about what's a lot of money these days and what's enough money and what is actually real money. I actually have a reason for asking all this. But before we do that, can we just talk about the elephant in the room that you and I have been doing this podcast for a long time? I've been doing it for, I said this morning, five years. Actually, this started off as the weekly standard daily podcast, so six years. And then if you add on a radio show that I used to do, you got another 23 years. And Ben, I blame you for this, that I decided this was a good time to get off the daily hamster wheel of crazy and did announce that next Friday will be my last podcast. And I just wanted to mention that at least at the top of this, in case people are tuning in,

we're not done yet. We're going to do this podcast. I'm going to be doing podcasts next week, but I think I'm stepping back and I kind of blame you, Ben, for all this. So I'm not sure how I feel about being blamed for this. I did tell you a week or so ago that not having to have opinions when I left the Washington Post editorial page, when I had to have opinions about every court opinion and being able to decide what not to read was one of the most liberating experiences of my life. You did say that. I did say that, but let the record reflect that I in no way knew at the time that you were contemplating stepping back. And had I known, I absolutely would not have said that because that encouraged you, apparently,

to take this drastic step that I so regret. All jokes aside, Charlie, this podcast has been so meaningful to so many of us. I say that as somebody who most recently has been a participant in it on a weekly basis, but long before that was a regular listener and sometime a person who appeared on it. It's one of the few podcasts I listen to absolutely every day, except when I'm on it. I know that there are, you know, just a gazillion people who have been moved by this kind of daily chronicle of the crazy and your meditations on it and your conversations with people on it, both at the Weekly Standard and here. And I just want to say on behalf of all of them, how much we have valued your scurrying on the particular hamster wheel. And while we don't begrudge you getting off of it and having that moment of absolute liberation where you don't have to have opinions about everything anymore. We will miss you very much and hope that we will get to continue to follow you in other forms.

I really, really, really do appreciate that. And, you know, I really have enjoyed doing the podcast. As I mentioned in my newsletter this morning, I had the opportunity to every day talk with, you know, the smartest people around, smart and interesting people, you know, and I was thinking back to when we first started this, if I'd made a list of the kinds of people that I want to talk about, I think I have most of them. I mean, I remember going to a conference in the before times, and I was thinking about, you know, there were a lot of interesting people there. I don't even think I've even told you this story. And I'm thinking, I've never met Ben Wittes. I really want to meet Ben Wittes.

I wonder, you know, if Ben Wittes is over there somewhere. And I was thinking that how cool it would be. And here are you and I, like we're having these conversations. So I have been, you know, very honored, very, very blessed. Can I just say about that, that that is one of the weird effects of the Trump era, is that it brought together all kinds of people who previously would have had no reason to interact with one another, Crystal's world enough that we knew each other by face and name and occasionally emailed, but not enough that I knew the Sarah Longwells or Tim Millers or Charlie Sykeses. You know, one of the oddities of the Trump era is that it caused people across the political spectrum, including people like me who exist uneasily on

the political spectrum, to decide that their fundamental political identity was that they were pro-democracy and to put aside a lot of other things and bond on that basis. And that has been an extraordinary experience. I mean, I can just name, you know, all the people that we've, you know, made common cause with that we don't agree. And I agree with you. I'm also sort of uncertain on the political spectrum, you know, because a lot of this is, you know, broken old alliances and made you rethink various things except about democracy. And I want to make it clear that I am not giving up the fight. I'm not walking away from this. One of my thoughts was, you know, you can't do this in the middle of the election year.

And, you know, as I thought about it, I thought, no, that's a decision I've made for the last 40 years, you know, stick through the election year. But in this current environment, and I'm not saying that everybody else needs to make the same thing. The fire hose is a very real thing. And it is, imagine your brain being hooked into Twitter 24-7 and all of this stuff just going through. As somebody that, you know, I love crazy every single day, you're not necessarily going to have the most important thoughts. You know, look, a lot of what we do is completely disposable anyway. But in order to understand our time, you know, I mean, my life is getting up at 5am every morning and writing a 2000 word email and newsletter, and then getting on a podcast with really, really smart people. Now, I'm not complaining. That's hard. It's just that, am I doing the best possible job I can do? Am I contributing as much as I can? Am I fully understanding this extraordinary moment you're

in? I mean, that's really been the process that I've been going through, in part. So let me say for those members of the audience for whom that does not sound super hard, that's super hard. Writing every day is hard. And having an hour of good questions, having done enough reading to conduct an interview in a serious way across the range of subjects that you do it. And then doing the political commentary that you do on television as well. That's a hell of a grind to do day in, day out, week in, week out, month in, year in. Look, I wrote editorials for the Post every day for 10 years. I know the writing thing every day, but the writing and podcasting thing in combination, that's a tough slog. Well, and then there's another thing as well. I thought obviously long and hard about how we got to this moment, how easy it is to get caught up

in partisan cheerleading and tribalism. It happened. I got drawn into it, you know, back in the, whatever you call them, the, you know, the aughts, whatever, when I was on conservative talk radio. And after a while, you know, it becomes about the team. You're not thinking about things, you're looking for ammunition. And it's so easy to basically put on that jersey and feel that you have to advocate. I don't want to do that anymore. In an election year, I think it's harder and harder to maintain independence of thought and to step back and say, okay, what's really going on, as opposed to being right in the trenches where all you can see is the bayonet in front of you and the need for you to stick

the bayonet in somebody else. And so I don't want to go from one sort of tribal mono thinking into another tribal mono thinking. I also think it's very, very difficult, Ben, to be a center right commentator in this particular moment, because the right has become so corrupted. It has been so subsumed with demagoguery and hackery and everything. And yet, you know, it's not enough to simply say, okay, I'm going to change my hat, because I think we still need to talk to the voters who, in fact, are confused by all of this, you know, and want to have trusted voices. So all of that is going on. And I don't have a formula for it. But back in 2016, when Trump came along, I realized I can't

keep doing this. The analogy I use with my wife all the time is, I feel like I'm strapped to the mast, you know, and the frigate is being blown around and I got to get off this frigate. I felt in 2016 that that was the time to make a change. And it was one of the best decisions I ever made. But I also feel that I can do, I can engage in this fight in the long run more effectively by not basically putting my face up against the fire hose. And part of that is that 2024 is not just about 2024. We have to sort of pace ourselves because this is going to be a fight that is going to last for a very, very long time, opinion on 20 things every morning, to have an opinion on one thing for a while. Cumulatively, you will deal with all the issues without driving yourself and everybody around you insane. I'm sorry. You may not deal with all the issues.

Right. And that's fine, right? You may deal with a narrow subset of the issues. If we can switch roles here and I can interview you about this for a minute, do you have a sense of what the next Friday is your last Bulwark podcast? Which means I get to say one more. We'll be back next week and we'll do this all over again. But this is the last week I get to say it. What happens to you the Monday after that? You don't get up at five o'clock to write morning shots.

What are you going to be doing? What are you going to, are you going to sleep in? Are you going to work on a book? What's the next act? Well, I don't know, except that that Monday, the odds are that I'll probably have to get up at 345 to do Morning Joe. So I don't get to sleep in. That's the only thing. I don't know the answer to that. But can we go back to blaming you for this? Sure. Because the other thing that you wrote that really sort of hit me was when you ran through the list of all the things that you don't care about.

Because, you know, this is part of the thing is I'm realizing is that you get so overwhelmed with all the stuff you go, you know, I'm sorry, I just don't care enough to have an opinion about everything. And if you step back, and you, I guess, give yourself a little more time, you might, again, still not care, or you might care about other things. But in answer to your question, I don't know, but I'm not leaving this fight. I just want you to know that. Yeah, no, I hear you. I just want to say about that list that when I wrote it, I think the first item on the list is that I don't care who Taylor Swift is dating. And I have to say that the MAGA freakout about who Taylor Swift is dating has made me actually not care about it. But I've been so amused by how angry people are at her and how angry people are about her that I've decided I'm just I'm a Swifty now.

I am with you on this. By the way, did you see the tweet? I thought this was really interesting this morning. Liz Cheney tweets to Taylor Swift something like, you are a national treasure. And I wrote, the planets are aligning. There's something going on. All of these things are converging. Taylor is inadvertently becoming part of the democracy movement. And I have a lot of time for that. I have time for that as well. But it is interesting.

You know, I mean, you know, we've talked about how the right wing has completely lost its mind. This is one of those extraordinary moments where even people on the right, I think, are kind of going, maybe this is not the smartest thing. We have a new poll out showing Joe Biden as a six-point lead now on Donald Trump. And a lot of it is the gender gap. And the Republican Party's response is, yes, let's put Taylor Swift at the top of our enemies list. Taylor Swift, Disney, the NFL, we're picking fights with pillars of American popular culture that are not obviously left aligned. I mean, I have not dug through Taylor Swift's music, but I don't think of her as a left... I've seen the concert.

I don't think of her as a left figure. And she's not particularly political. And at some point, you're just at war with the culture. And when you go to war with the culture, you lose. Well, and you're going to war with the culture in a way that you're suddenly getting the attention of people who are not hardcore voters. You have a lot of sort of unmotivated, disconnected voters. And suddenly, you're out there going, hey, you know, this is our jihad against Taylor Swift. And suddenly, you get their attention, but in the worst possible, in the worst possible way. So see, Ben, you asked what I want to do. I want to write more about things like this, seriously, but I want to do it in a more serious way. It's easy to do the hot takes and the cheap shots, which I do not mind doing. I want to

make this very clear. But, you know, for people who just listened to the podcast, there was a time in the before times when I actually wrote whole books, I've written nine books, I like long form journalism, I like writing columns that are thoughtful. When I walk my dogs, you know, and listen to audible, okay, I'm now I'm giving too much information. You know, by the way, just finished a Nathaniel Philbrick book about the Battle of Yorktown, which is just freaking fantastic. I mean, I don't know if you like stuff. What's it called? It's called In the Eye of the Hurricane, I think.

And it's about George Washington and the French and everything. It's also very interesting, you know, having, you know, French grandchildren, the detailed contribution of the French to the American Revolution, which I think people know about on a surface level, but it's really an extraordinary story. But anyway, but I also listened to the columns of Charles Krauthammer and George Will. It's now an anachronism to just listen to the thoughtfulness, the historical perspective, just the human decency in all of this. This is the way conservatives used to sound. And it's like, it feels like it's a lost art. It feels like an archaeological dig in some sense that we're not doing all of that. I actually love doing the daily short hits newsletter. But at the end of my career at this moment, is that what I want to be doing? I'm sorry, there's too much

about me. But if you want to talk about Taylor Swift more, I am more than into it. No, I am much more interested in you than I am in Taylor Swift. I've never written a line in an article, much less a lead, I don't care about Charlie Sykes. But I have written that about Taylor Swift and her boyfriend, which I slightly regret now. Well, you never knew. I mean, this is one of those things where eventually all the planets will align, that everyone has to connect it in some way. What I love, by the way, particularly, is the fact that now apparently if Taylor Swift

and Travis Kelsey are now coding as lib psyops, right, does that mean that conservative MAGA America has to root for San Francisco to win the Super Bowl? You dig your own grave culturally. And I think, yeah, they have to root against the flyover state and for San Francisco. And, you know, it's MAGA and Nancy Pelosi. Yeah, you knew that they were taking a weird turn when Ben Shapiro, you know, the Voltaire of the right, decided that he was going to, what, you know, throw Barbies in the trash

because the movie Barbie was a thing. Speaking of serious, I want to talk about money, which I think you know a lot more about than I do. So we found out yesterday, Donald Trump last year spent $55 million on legal bills. I guess my first point would be, you would think that if you had $50 plus million to spend on lawyers, you'd get better lawyers than he's been getting. You'd be able to get somebody other, Alina Haba. But that's a lot of money, isn't it? Yes. So first of all, let's be precise. Donald Trump did not spend $50 million on lawyers. Donald Trump's PAC. Which means Donald Trump's donors. Donors. Grandmas from Wichita. Why this is legal, I actually, you know, I'm the legal guy. I actually don't understand this. Why it is okay to spend PAC money on personal legal bills that aren't obviously related to the campaign. I think the reason is, has everything to do with whatever disclosures you make in the finest of fine print to your donors. But I am not a campaign finance law expert. And I frankly find this bewildering that this is legal. I mean,

this is a guy who is indicted on four separate occasions in his personal capacity, not for activity that the campaign obviously has some equity in. And so I do find it strange. That said, the amount of money is very large. It's not that large for a defense in four separate high-profile white-collar criminal cases, plus two defamation lawsuits, plus a couple of major civil suits. So I don't think it's that surprising given the magnitude of his legal problems, which are extraordinary. That said, it's a very large amount of money. And if you are thinking of donating to Donald Trump's super PAC or to the RNC, you should be aware that these leadership PACs are actually spending an enormous amount of money on Trump's legal problems, not on, you know, getting him elected.

His donors may not care. But you raise a very interesting question about the use of campaign dollars, because generally candidates that use campaign dollars for personal purposes will find themselves in trouble. Well, as a general matter, yes, I believe, but I'm not sure, that the explanation is that what are called leadership packs are not limited to campaign spending, and they can basically spend money on stuff as long as they are not defrauding anybody. They can spend money on personal expenses to the extent that they need to. That said, $50 million, it's a heck of a gratuity. I don't actually understand also why it's not

taxable income. Oh, that's another interesting question. Sure. Once it transfers over. You have a debt and it is satisfied by somebody else, why is that not a gift? Look, I am not a tax expert and I'm not a campaign finance expert. I just don't understand why a giant bill for legal fees can be satisfied out of donor pockets without raising significant legal issues. As to your question about the quality of his legal representation, it's exceedingly uneven. Alina Habbo was a disaster in the civil case. Mr. Sadow in Atlanta, who represents him in the Fulton County case, is not a disaster. He's a very

professional, serious lawyer. The team that represents him in D.C. has made some, I think, lousy arguments, but they are not incompetent. They're kind of loudmouths professionals. And, you know, he is definitely not represented he was represented by Jones Day, Don McGahn, and his crew, and, you know, they were there superb. He's driven away all the normal lawyers, and you're left with these sole practitioners who are quite uneven in their quality, and some of them he fires very quickly when they show any signs of independence or being limited in the stupidity of the arguments that they're going to make. And so it's definitely going to be an issue for him as some of these cases head to trial. I don't know how much it cost him in the final judgment to have Alina Haba representing him, but that $83 million, I don't think it discounts all that much because the conduct is so horrible. But I do think it cost him real money not to have

competent counsel there. That obviously cost him a lot of money, but also his own performance in the courtroom. I mean, deciding to show up in front of the jury, in the sight of the jury, you know, basically go through his performative assholery. I mean, you to show up in front of the jury, in the sight of the jury, basically go through his performative asshole for every moment that he was there. As I mentioned, I think, to Joe Klein on the podcast yesterday, look, it's not a surprise that Donald Trump has trouble getting good lawyers. I mean, he's notorious for not paying his lawyers. And now, in addition to possibly not being paid, you're watching lawyers being disbarred, being indicted. Not a great incentive. So let's talk about that judgment.

Eighty three million dollars. You know, we're talking about what's a lot of money. OK, we know that eighty three million dollars is a lot of money. Is it enough money to shut Donald Trump up? So far, he has not been redefaming E. E. Jean Carroll. So is $83 million, is that past the threshold of what it takes to get Donald Trump's attention? Well, at least for a week. Right. It has his attention for a week. He has not, at least not that I've seen, re-defamed E. Jean Carroll in that time period. By the way, that's an interesting argument that the judgment is reasonable. If you're going to go up and ask that these punitive damages be

cut, which I'm sure he will, one response to that is, hey, you know, nothing else worked. And boy, this jury said $83 million, and he's been awfully quiet in response. Okay, so I have a question that you've sort of been directly raised, though. So let's say that he has to post a bond or that he has to ultimately pay the $83 million. Can he take that from his campaign funds, his super PAC? He was asked about this the other day. Is that possible? He'd want to, you know. The answer is, I don't know. I think the answer is it depends on the specific fundraising appeals that the super PAC purports to be or the leadership pack purports to be but again it raises potential tax implications i think it raises campaign finance issues but i think if you solicit

money from people on the grounds that we're going to use this money to pay legal bills and satisfy whatever judgments that we have i I think you probably can. Wow. Isn't that something? Again, it requires a lot of knowledge of the details of what their fundraising appeals are, as well as what the bylaws of the organizations are that I don't have. So remind me how this works. I mean, obviously, he's going to appeal this judgment. Is E. Jean Carroll ever going to see this money? And number two, does he have to post a bond? I mean, if you're Donald Trump, when does it become real that you have to come up with $83

million and write a check to either E. Jean Carroll or into a posted bond for the court? How does it work? It's an escrow. It's a bond, basically. So yes, basically. And it's kind of real now. First of all, in New York, to appeal, the cost of the appeal bond, I believe, is 100 or 110% of the value of the judgment. And so if you're going to appeal it, you actually do have to put up the money. Now, you can put up the money either by writing a check that puts up the money or by hiring what amounts to a bail bondsman

to write the bond for you, and then you pay some fee, right? And they take the risk, right? They take the risk that you somehow run out on it, which that I don't think he would be able to do because he has real assets in New York. Like, he's got to put up real money now. And by the way, that would be, I believe, true of any judgment in the Ngoron case as well, which will be much larger. So you start to get into a position where it's not that she will not see the money pending the appeal, but he has to make arrangements for that money to exist in real form. And, you know, unlike Alex Jones, who can go through all kinds of contortions to make himself judgment-proof,

Donald Trump owns buildings. He owns the Trump Organization, which has real estate, and he has golf courses. And so I don't think it's that easy for him to evade judgments. That said, what he can do is scrape and fight and delay things over long periods of time. Okay, so let's talk about the big one that may come down by the time that people hear this. What should we be looking at in Judge Ungoran's ruling in the New York fraud case? I mean, obviously, the top line is going to be the headline. You know, it's going to be in the hundreds of millions of dollars. I believe Letitia James is asking for $370 million. You know, probably not going to be that much, but it's going to be a big number. What else should we be looking for? If you're

Donald Trump, other than the money, which is then that's a lot of money, and that will get his attention. What other details in that ruling are you going to be looking at? So there's a few things that you always look for in a district court opinion. The first is the findings of fact. When a court, a reviewing court reviews a lower court, they do not owe deference generally to the lower court on questions of law, but they do owe deference to the lower court on questions of fact. And the theory here is the trial judge is the one who listened to the witness testimony himself, right? He's the one who supervised all the

testimony, who heard all the backs and forths. And so when he finds something as a matter of fact, those will be overturned by a reviewing court only with a certain amount of hesitation. And so when you're dealing with a district court on a complex matter, you are always looking for, are the findings of fact rich? Did he do the work to document? People love to quote the highfalutin sentences and the rhetoric and the stuff, but look at the specific facts that he found. What value, what number does he put as a matter of fact on the total volume of fraud that the Trump organization committed in these valuations? Those are going to be very hard for appellate courts to overturn. The second thing is there's the big top round number, how much of that is the value of the fraud and how much of it is something else, right? Whether punitive damages or, you know, something that's more ethereal than, you know,

you owed X and you did Y, right? And then finally, what remedies does he order other than financial penalties? So there's all kinds of requests here for preventing the officers of this company from doing business in the state of New York, essentially dismantling the Trump organization. What does he do in that regard so the big headline will be the number but i think you also want to look at what are the findings of fact that underlie that number and what are the remedies other than that fine what are the components of that gestalt number and what are the remedies other than the financial remedies okay so let's talk about the other thing that we are waiting on. We're not going to get to Eileen Cannon because we'd wait forever for that, I think. Yeah, we can wait three more months for that. I know. The Georgia case, DA down there, Fannie Willis, and the special prosecutor, Nathan Wade, have been subpoenaed to testify at a hearing on February 15th involving motions to disqualify them both from the Georgia

election interference case. Now, this was obviously filed by an attorney representing one of the defendants in the racketeering case, and the allegations are that Willis and Wade were involved in an improper romantic relationship and should be disqualified. Wade had been expected to testify about his alleged relationship with Willis on Wednesday, but he and his estranged wife settled their apparently rather nasty divorce case. So we're waiting on her response. Where are we at on this? How grave a threat does this pose to the entire election interference Trump case?

So I am in the minority on this, and I don't think it's that serious a threat. Here down the Fulton County court system's filing system. And so the docket is at least yesterday when I last checked, the docket was not available. I'm not sure whether it will be by Friday or not. But she will file her brief. And, you know, if by a carrier pigeon pigeon it will eventually make its way to the press and we will see a copy of it and, of course, we will post a copy on Lawfare as soon as we have one. That will presumably respond at least to the legal argument that there is some conflict that requires disqualification here. But it also may respond

to the factual allegations. And the response on the factual allegations is important because of two things. One is, assuming there was a relationship or is a relationship between Fannie Willis and Nathan Wade, It actually matters when that relationship started. The allegations in the brief contend that she hired somebody she was dating. And it seems to me it's a rather different picture if that specific allegation is true than if she hired Nathan Wade and then they started dating at some point, right? That's a bit of a different picture. The second area in which the facts really matter here is, is it clear that he's spending money that he's earning from her office on her? That's a much uglier picture if she's paid her way or he paid for the tickets and she paid for the lavish dinners, whatever, I don't think that's not going to kill a case. The third issue and the really important issue is whether any of this creates a disqualifying conflict. And Anna Bauer has looked carefully at the disqualification decisions in Georgia,

it does not seem to me that these rise to the level that have caused disqualifications in the past. That said, the tighter the relationship, the financial relationship is with money that he is being paid by her office, the more that could change. And so what I would say is this is an area where both the facts and the law argument in that brief that she's filing tomorrow are going to be really interesting and are going to matter a lot. And then the second thing, I believe on the 15th of February, is this hearing where they will both have to testify, barring something that I don't anticipate. And I do think that they will have to answer for, you know, less for the fact that they

may be dating, which is not illegal, and then for any whiff that there is a financial advantage to her of retaining him for this work. I don't think that is going to kill the case, but we'll have to see what happens in mid-month. I mean, obviously this doesn't look good. I mean, there's a lot of political fallout, but I want to keep on this whole question of killing the case. Let's say that, in fact, their conduct did cross such a line that they are both disqualified from the case. Can the case survive in the worst case scenario of them both being disqualified?

Well, his disqualification doesn't matter very much because he's just, he's an employee or actually a contractor. And so, you know, if Nathan Wade gets disqualified, Fonny Willis has other trial lawyers and can hire other ones. If she is disqualified, that is a big deal because her office gets disqualified with her. Oh, it's not just her, it's the whole office. Yes, exactly. And so, because the whole office works for her. Okay.

And so if that were to happen, that is a big deal. And that would mean that there's an office in Georgia that would then have to reassign the case to a different prosecutorial office, which would come in and represent the state for that purpose, that would be a big deal. It would not immediately trigger the dismissal of the case. It would require the appointment of a different prosecutor to handle the matter. And actually, something similar happened earlier during the special grand jury when Fonny Willis went to or

hosted a fundraiser for somebody who turned out to be running against the lieutenant governor of the state, Burt Jones, and she was disqualified by the judge supervising the special grand jury from investigating Burt Jones. And that case, to my knowledge, still has not been reassigned. So I think if she were disqualified, it would be a very big deal. It would not mean that the case goes away. It's an indicted case. But it would mean that you'd have to bring in some other office to take it over. And that would be given the investment in this case, that would be a very substantial problem. So leaving aside Eileen Cannon, what else should we be paying attention to this next week? That's a global question. That could be anything.

Well, there's one big answer to this, which is one week from today, which is going to cause us to have to record at a different time than usual is the oral argument in uh the section three case before the supreme court of the united states and there have been 65 amicus briefs filed in the case i have not read them all yet i haven't read them all either but you know they're all available on Lawfare for anybody who wants them. You know, we are going to have a major Supreme Court showdown on whether Colorado can bar President Trump from the ballot. And it's your nightmare, Charlie. You've been warning about this for like a year now.

Yeah, February 8th. That's got to be on everybody's calendar. That's going to be a long and busy, busy day. So Ben, once again, thank you so much for joining me on the podcast. This is the last time I get to say this. We'll be back next week, but not at the exact same time

because there'll be an oral argument going on. And we'll do this all over again. We will indeed. Thank you all for listening to this Bulwark podcast. I'm very, very grateful. 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.