The Bulwark Podcast - What Will the Supreme Court Do?

Episode Date: January 4, 2024

SCOTUS will have to take up up the insurrectionist clause, after Colorado and Maine took steps to remove Trump from their ballots. Plus, Trump's absurd and audacious immunity claim. Ben Wittes is back with Charlie Sykes for The Trump Trials.

This message comes from BetterHelp. Can you think of a time when you didn't feel like you could be yourself? Like you were hiding behind a mask? BetterHelp Online Therapy is convenient, flexible, and can help you learn to be your authentic self so you can stop hiding. Because masks should be for Halloween fun, not for your emotions. Take off the mask with BetterHelp. Visit BetterHelp.com today to get 10% off your first month. That's BetterHelp, H-E-L-P, dot 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, 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. Welcome to the Bulwark Podcast. I'm Charlie Sykes. It is January 4th, 2024. We are coming up on the third anniversary of the January 6th insurrection, which is hanging fire at

multiple levels of the legal system. In our episodes of the Trump trials, we've been looking at the legal perils faced by the former president, but they have never been as severe as they are today. And of course, we are joined by our good friend Ben Wittes from Lawfare. Ben, first of all, Happy New Year. Happy New Year to you and to everyone listening. Buckle up, people. I've been quoting you, your conversation in the kitchen with Mona Charon at the New Year's party about the stakes here. I mean, it's one of those moments again, and I think I've started every podcast this week by saying, you know, it is rare that as you go into a year, you are aware that this is the hinge of fate. And I was thinking about knowing in January, I think

maybe in January of 1944, people realized that this was the hinge of fate. But certainly that's true of 2020 for so many things right on the knife's edge. Yeah. And one of the things about it that gives it that choose your own adventure novel quality where, you know, you actually do sort of know the list of possible outcomes. You don't know which one you're going to get, but you kind of know the list. And the reason is that there's a Democratic nominee for president and there's a Republican nominee for president. And you 100% of the time, since, you know, we became a two-party system, you get one or the other. And right now, the probability that those two are, one is a small d democratic figure that is kind of roughly consistent with the American tradition, and the

other is promising a radical break with the American tradition, and the other is promising a radical break with the American democratic tradition and promising something much more authoritarian, that is really, really stark. And they're ballot entry, or they're going to be ballot entries. And so you know a particular date on which we are going to make a choice between those two. And you also know a particular date on which we are going to make a choice between those two. And you also know a particular date, New Year's Day 2025, where the world might be very similar to the world today, or it might be really different from the world today. Really different. You know, what's also stark, though, as I was thinking about the third anniversary of January 6th is how inconceivable this moment would have been on January 7th, 2021. You know, we start the week with that poll that was in the Washington Post showing what percentage

of Republicans, what percentage of Americans, frankly, don't really have a problem with what happened on January 6th. They're not only supporting Donald Trump and willing to minimize his role in that attempt to overturn the election, but are quite sympathetic to the people who attacked the Capitol. I guess, you know, Ben, we've been talking for the last, you know, seven years about, you know, being a post-fact society, post-fact political culture. I feel like we've moved past that to sort of almost post-reality. The success of Donald Trump in his historical revisionism is really amazing. And I'm trying to think of any parallel to that in American history. And I'm coming up short. I mean, how amazing is it three years after that we are where we are right now?

I want to reflect on that for a moment. I really appreciated your conversation with Susan Glasser about it yesterday, about the degree of sort of reality suspension that is a kind of not predictable norm based on life in our lifetimes that you could convince, you know, something like 40% of the American people that an event they saw with their own eyes didn't happen. Look, I will point out that I don't remember the exact numbers in the poll, but this is not majority sentiment, right? It is a strong minority sentiment, and it's a minority sentiment that correlates quite precisely with a lot of other quite pathological beliefs. For example, the beliefs that Donald Trump

should be president again, right? That Donald Trump is a figure oppressed by the deep state. These are kind of wild fantasies. And the fact that in the midst of a set of wild fantasies that have no basis in truth, we've now added yet another one that's, you know, kind of a comprehensive wild fantasy that, you know, the event that disqualified him never really happened or was good or was an expression of patriotism. I cannot think of good corollaries to this in American history except one, which is the rewriting of what the Civil War was. Which is oddly relevant these days. The conversion of the Civil War from a rebellion against the United

States in defense of the privilege of slavery for white Southern landowners into the lost cause, right? And that was an intellectual transition that, you know, started over a few months and became a kind of national mythology in the South over a few years and, you know, persists not a cult of personality around one person. And it was not about one person's will to power. It was about other horrible things. But it wasn't about, you know, Jefferson Davis's efforts to seize power after the Civil War or Robert E. Lee's, right? That is an excellent analogy. The one that I was thinking about was, and you point out that this is not a majority point of view, but it is a substantial minority. But even though it's a substantial minority, it also has one of the two major political parties in its grips, and that political

party may be on the brink of power in Washington, D.C. This would be a little bit like, you know, we've dealt with conspiracy theorists all of our lives, you know, people who thought that the moon landing was fake or that the CIA assassinated John F. Kennedy. But imagine one of the major political parties suddenly, you know, seizing that as a litmus test, as one of the tenants of belief. That's how weird it is to me, what's happened with January 6th, which makes it so much more exponentially dangerous. There is one other analogy, but it's not an American history analogy, and that's the Beer Hall Putsch. You know, for those whose early Nazi history is, you know, not conversant, in, I believe, 1925, Hitler, you know, the leader of the then new Nazi party, tried to overthrow the Weimar Republic. Maybe it was 23, actually, and tried to overthrow the new Weimar Republic.

It was something of a riot in a Munich beer hall. And it was putatively led by General Ludendorff, who had been the sort of commander-in-chief of the German forces during World War I. It was actually led by Adolf Hitler. And, you know, Hitler was tried and sentenced, did time for treason, during which he wrote Mein Kampf. And he converted this rebellion into sort of a great patriotic uprising. And Mein Kampf, the book, was a kind of apologia, you know, written from prison for, among other things, this abortive uprising. And I do think the conversion of that and into, you know, a great patriotic moment, which is what he did and did rather successfully over time, provides sort of some analogy to what Trump is trying to do with the conversion of this great

moment of shame, and specifically anti-democratic shame, into, you know, a patriotic choirs of, you know, prisoners. As opposed to a shambolic, bloody fiasco, failed coup d'etat. By the way, for our history buffs, this was November 8th and 9th, 1923. So about a century ago. Hitler analogies are always bad. And so I don't want to dwell on that one. I do think at a time where Trump is, you know, quite self-consciously invoking Hitlerian rhetoric, and it's not not a good idea to remember that there are abortive putches and uprisings that become valorized in right-wing, or for that matter, left-wing mythologies. I think the better example in American history is probably the Civil War.

Well, okay, so these all come together, coup d'etats and insurrection, because let's dive into the big stories. I mean, we've been doing this for some time, the Trump trials, many of them having to do with, in comparison, the minutiae of various motions and hearings and everything. We have moved right into the Super Bowl right now. The U.S. Supreme Court almost certainly, feel free to disagree with me, is going to be taking up the 14th Amendment, Section 3 litigation. Donald Trump has, and I think correctly, said this is an issue of national importance and has to be decided by the Supreme Court. So let's start with the so-called insurrectionist clause, since there were developments yesterday related to Section 3, which very explicitly bars people from serving in office

if they had sworn an oath to uphold the Constitution and then participate in an insurrection. Since you and I spoke last, Colorado Supreme Court ruled during my vacation, weirdly enough, both of our vacations, that Trump is constitutionally ineligible to run because that section covers his conduct during the attack on the Capitol. Secretary of State was ordered not to place his name on the ballot. Then on December 28th, Maine, the Secretary of State ruled that Trump's name must be removed from the primary ballot. So they have gone now to the Supreme Court and they are basically saying, all right, we want the nine members of the U.S. Supreme Court to decide whether or not Donald Trump can remain

on the ballot. So Ben, give me your take on Colorado, Maine, and whether you think the Supreme Court is going to take up this case. Well, I want to take you back, Charlie, to a conversation that we had on this podcast. I remember exactly where I was when we had it, which was in the airport in Reykjavik, Iceland. That's memorable. And we were talking about this, these obscure litigations. And I said, you know, watch this space. This is going to be a big deal. And the reason it's going to be a big deal is because one state, I think we were talking about Minnesota at the time that the Minnesota Supreme Court was thinking about it. And I said, look, one state is going to do this. And the moment one state does it, the Supreme Court has to resolve it because this is actually an issue in which federal law has to be uniform. And so if you'd asked me which state I thought was the

likely one for this, I'm not sure I would have picked Colorado. The Colorado Supreme Court, I thought, did a very creditable job laying out the case that the Constitution does, in fact, prohibit Donald Trump's future service. A lot of people are dismissing this as a bunch of liberal judges, but that is the position of, in the conservative world, people like David French, people like Mike Ludig, people like Will Bode and Mike Paulson. It's very serious people. It is not a trivial argument. And by the way, if you are a textualist or an originalist who takes seriously what the Constitution says, you know, take a moment to read Section 3 because it sure does seem to be describing somebody like Donald Trump. That said, this is contrary to what a lot of liberals think. It is not a slam dunk at all.

And there are, I think, four distinct and serious questions that the Supreme Court would have to resolve all in the same direction in order to get to affirming the Colorado Supreme Court. So the first is, is Section 3 of the 14th Amendment self-executing, which is a term that basically means, does it do what it purports to do by itself, or does it require that Congress somehow implement it? So, for example, if Barack Obama wanted to run for president next year, he is barred by the Constitution from having a third term. That doesn't require an act of Congress or something to say, no, you can't be on the ballot, right? I mean, you just go to a court. Exactly. On the other hand, there are provisions of the

Constitution that do not execute themselves. And by the way, the 14th Amendment contains a bunch of such provisions. So the section, I forget whether it's four or five of the last line of the 14th Amendment, I think it's Section 5, says, Congress shall have power to effectuate by appropriate legislation the provisions of this. So the 14th Amendment itself names Congress as having a role in creating the legislation that does the work. Right now, due process and equal protection in 14th Amendment Section 1, we don't wait for Congress to enact that, right? It's self-executing. But the question of which provisions are and aren't self-executing is a tricky one, and the court would have to rule

that the 14th Amendment Section 3 is self-executing. Second, the court would have to rule that the 14th Amendment, Section 3, is self-executing. Second, the court would have to rule that the presidency is an office under the United States and that the president is an officer under the United States. That seems kind of easy to me, but... So, it's easy commonsensically. It's less easy legally. Oh, I'm sorry to hear that. And we can dive into the reasons if you want to. I actually don't think it's a very interesting question. No, I don't think so either.

But it is a really important question. And it's the one that, by the way, the district court in Colorado tripped up on. I know. And said, you know, yeah, he engaged in an insurrection. But I don't think this provision applies to the presidency. And there's some reason to, even the Supreme Court of Colorado kind of struggled with it a little bit. They basically said this would lead to an absurdity, which is right. It does lead to an absurdity. But sometimes the, you know, application of the Constitution to certain facts leads to absurdity. So you'd have to get past that.

That's ball of questions number two. Ball of questions number three is, was January 6th an insurrection within the meaning of the Constitution? And here, I find this question easy, actually. A lot of people do not. And I'm including, again, serious people. And the argument goes something like this. Hey, we have a statute that defines insurrection. And that's, you know, Congress has the authority to create self-execution legislation for this. And it did. It created an insurrection statute. Trump has not been indicted under that statute. Nobody's been charged in connection with January 6th under that statute, reflecting the fact that maybe this is not an have you been charged with or has anybody been charged with insurrection or have you been convicted of it? The question in the Constitution is, did you do it? It doesn't, by the way, spell out how you figure out the answer to that question.

But the question is not a question that sounds in criminal law. It's a question that sounds in criminal law. It's a question that sounds in objective reality. And I think the objective reality is that Donald Trump did something that seems awfully like lead an insurrection. And that brings me to the fourth question, which is, did he engage in it? Let's assume, for example, that the riot was a insurrection within the meaning of the Constitution. Donald Trump did not participate in the riot, right? He didn't storm the Capitol himself. He actually didn't order anybody to storm the Capitol. And what he did do is he made an inflammatory speech and he praised people. There's a series of things that he did that the Supreme Court would have to be

convinced collectively amounted to engaging in insurrection. So my point isn't that any of these questions, the answer to them favors Donald Trump. I actually think probably the best reading of the Constitution is that he's barred. But I do think you have to get through all four of them, and they all have to cut the same direction, and you have to get five justices to agree with that. So I do think it's a pretty heavy lift at the Supreme Court. That said, I don't believe that it is a 0% chance. Okay. Put yourself in the shoes of Neil Gorsuch. Your whole claim to legitimacy as a justice is originalism and is taking the text of the Constitution

seriously and the text of statute seriously, irrespective of where they lead you politically. And so that means this is a guy who, he's no kind of lefty. He will vote that Title VII anti-discrimination law covers trans and gay people who were clearly not on the minds of the people who wrote it, because that's what the text, in his view, says. By the way, rightly, I think. He also is the best friend of the Indian tribes on the court, because of, first of all, a sensitivity, I think, being from that part of the country to, you know, some of their grievances, but also that he reads Indian law seriously. And he takes what Congress said, and, you know, wants to apply it. How does a guy like

that look at a section like Section 3 and say, no, for prudential reasons, you know, all this, yeah, it seems to bar Donald Trump, but we just can't go there. I think that's going to be a problem for him. I don't know if it's going to be a problem for Clarence Thomas and Sam Alito, but I do think the more originalist you are, the more difficult this problem gets. And that's why you see some very prominent originalist scholars like Bode and Paulson, who write a piece that says, you know, this isn't really a close question. Okay, so here's my take as a non-lawyer here, and I agree with everything you just said.

However, you look at the history of the court and the intersection of the law and politics, it has always been a factor for the court. And you know that the Supreme Court hates to inject itself into these highly partisan toxic issues. They certainly do not, Justice Roberts, and actually no one in this court, wants to go through another Bush v. Gore type situation. And this is, I would say, exponentially more complex than that. And so, yes, you know, this does pose a challenge to the originalists, like, for example, Gorsuch, but the justices have all sorts of ways of kicking something or ruling narrowly or finding technicalities or other issues rather than dealing it. There is, I'm actually willing to die on this hill, I just, I think there's a little bit of

wish casting, there's a little bit of unicorn hunting here. There is no way that this U.S. Supreme Court is going to throw Donald Trump off the ballot in the middle of a presidential election year. No court wants to take a step that would be perceived as that radical. I don't think it's extreme. I agree with you. Whatever your definition of insurrection is, I believe that inciting and stoking and conspiring to have the violent overthrow of a free and fair election is insurrection. I do believe that the 14th Amendment does apply. However, you know, in the real world, in the prudent world, Supreme Court justices just do not want to play that role. And so I just don't think that there's any way that that is going to happen.

I do wonder whether there's any way that that is going to happen. I do wonder whether there's any sort of interplay, and again, we're talking about things that we do not know, between this ruling and the ruling on the question of presidential immunity, because that is, to me, and you and I have talked about this, that's the big one. This question of whether or not the president is immune. I've always expected the court would reject Donald Trump's claims of immunity. In some ways, they have now the opportunity to balance, say, no, we're not going to throw him off the ballot, but we are also not going to say that he is immune. That strikes me, if I'm Justice Roberts, from a political legal

point of view, that seems like a sweet spot. But what do I know? What do any of us know? Right. So since we last talked about this case, there have actually been very substantial developments in it. And the most important is that the Supreme Court said, no, we're not going to hear it as a preliminary matter. Right.

Follow the regular order. D.C. Circuit, go first. That is a significant development, either because it signals that the Supreme Court's not that interested in this subject and may not take it at all, or because it adds a layer of delay, one or the other. In the meantime, the D.C. Circuit had set a a lightning fast briefing schedule. The briefing is now all done and is going to be argued on Tuesday. And so, you know, by the time we do Trump trials next week, we could even have a ruling from the DC Circuit. Seriously? Well, you know, I think it's going to be very fast. You don't set a briefing schedule that fast in order to

dawdle on the answer. And so when the DC Circuit rules, let's say by mid-January, then one of two things happens. Either the Supreme Court then has to take it up or lose its chance to do so before conviction, or it declines to do it, and then we're back in trial land. And so, you know, I think the D.C. Circuit is sending a very clear signal here that this trial is not going to not happen in a timely fashion because of us. If the Supreme Court wants to slow this down and push it deeper into an election year, that's on them. But the judges of the D.C. Circuit, God bless them, are saying, we understand the need for expeditious resolution of the immunity question. This message comes from BetterHelp. Can you think of a time when you didn't feel like you could be of the immunity question. Masks should be for Halloween fun, not for your emotions. Take off the mask with BetterHelp. Visit BetterHelp.com today to get 10% off your first month.

That's BetterHelp, H-E-L-P dot com. On Tuesday, Trump's legal team filed that brief in support of, you know, granting immunity. And it's quite, as we say, an unodacious argument they're making. He's claiming he's absolutely immune from prosecution for actions he took while in office. And his lawyers cite the impeachment judgment clause in Article 1, which reads, Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. So the clause indicates that a party convicted can still face prosecution. Trump, I'm sorry to

laugh, but Trump is arguing that the clause means something even more, that the president who is not convicted by impeachment may not be subject to prosecution. This strikes me as kind of a high lob in terms of absurdity. What do you think? Well, I want to preface this, Charlie, by saying I'm the guy who always says, actually, wait, let's give the devil his due and take this argument seriously. Right. Not this time. This is a freaking stupid argument. And I think the DC Circuit will treat it as frivolous. Literally nobody until this litigation has ever thought that this is what the impeachment judgment clause means. There is no scholarly

support for it. I have spent time with this clause since the Clinton impeachment in 1998, 1999, and nobody thought that Clinton could not be charged having been acquitted in impeachment. No one's ever argued that before. This has no votes at the Supreme Court. It has no votes at the D.C. Circuit, unlike the claim of presidential immunity, which is a different and more substantial claim that some people are not taking seriously enough. So let's get to that. Jack Smith has been pushing back very, very hard against, for example, Trump's opening brief that was filed back in December. If Trump's argument is correct that he's immune, Smith's team told the court, a president could order the National Guard to

kill critics, tell the FBI to plant evidence or take bribes for government contracts. In each of these scenarios, the president could assert that he was simply executing the laws or communicating with the Department of Justice or discharging his powers as commander in chief. And Trump's approach would leave no recourse to deter a president from inciting his supporters during a State of the Union address to kill opposing lawmakers, thereby hamstringing any impeachment proceeding to ensure that he remains in office unlawfully. Okay, so you think that some folks are not taking this seriously, because I think that this is a very clear bright line for the Supreme Court to say, no, you are not immune, because if they ruled the contrary way, we would live in a completely different constitutional universe. So what are we not taking seriously enough? Okay, so first of all, let me distinguish between several different types of immunity claims by presidents. One, the easiest question to

address is the question of absolute immunity that Trump has argued for. This is clearly wrong for a lot of the reasons that the hypotheticals in the special counsel's brief written undoubtedly by the redoubtable Michael Dreeben, who is one of the finest appellate criminal lawyers in the history of the country. And I don't need to say more than the hypotheticals that you just quoted to say, okay, it cannot be that the president is absolutely immune in the way that he is, by the way, absolutely immune from civil liability under Nixon v. Fitzgerald. That leaves a question that is much harder, which is, is there some non-absolute immunity that covers the president? You know, a cop gets qualified immunity famously, right? For stuff within his line of duty. Trump

is not asking for qualified immunity. Like, I think that is actually a tricky question. The reason he's not asking for qualified immunity is because it's not good enough to protect him, right? You know, if you give Trump qualified immunity, Jack Smith can overcome that with the power of this evidence. The third thing, and this is the area where I think the issue is very hard. So the federal government, even as it argues that Trump does not have immunity, absolute immunity in this context, has a long line of arguments that you can't apply certain criminal laws to the president. For example, the Office of Legal Counsel has a longstanding rule that says unless a statute specifically says that it does apply to the president, a criminal statute, you as a prudential matter assume that it doesn't

if its application to the president could in some way impede the presidential function. So let me give you an example. If I purported to send military troops overseas to accomplish some objective of Ben Wittes's, I would be probably charged with conspiracy to commit murder, you know, right? But if the president does that, you would never think of applying the conspiracy to commit murder to the otherwise lawful activity of the commander-in-chief in his capacity as commander-in-chief. That set of questions is another way of saying immunity, right? When you don't apply criminal statutes to the president because his function is different, right?

He has certain articulated constitutional functions. So I think Jack Smith, clearly with a lot of input from OLC, has done a remarkable job of distinguishing between these different threads. And, you know, his basic position before Judge Chutkin was, we have all kinds of ways to protect the president. The clear statement rule that I just referred to, prudential application of non-application of certain statutes to the presidency. By the way, if you're going to recognize an immunity, qualified immunity, there's no reason to give him absolute immunity. Give him qualified immunity. There's no reason to give him absolute immunity, give him qualified immunity, right? So the question of how the Supreme Court will think about the immunities of the president

in criminal cases is a very, that's a very hard set of questions. It's not a hard set of questions as to whether the immunity that Trump is claiming is valid or would be recognized. And that's the question though, right? The question is whether or not the court will say that Trump is immune from prosecution for the conduct for which he's been charged. And if I'm hearing you correctly, there is a qualified immunity that would not cover the specific charges that Jack Smith has brought against him. Well, so you could imagine the Supreme Court saying, we don't recognize the absolute immunity that the president has asked for. We do think the president is entitled to qualified immunity in the following fashion, and we remand the case to the district court to figure out whether the

indictment is defective in light of that, right? And that would surprise me if they did it, but it wouldn't rock my world particularly. The reason they are not asking for that is because it wouldn't do the work they need. This message comes from BetterHelp. Can you think of a time when you didn't feel like you could be yourself? Like you were hiding behind a mask? BetterHelp online therapy is convenient, flexible, and can help you learn to be your authentic self so you can stop hiding. Because masks should be for Halloween fun, not for your emotions. Take off the mask with BetterHelp. Visit BetterHelp.com today to get 10% off your first month. That's BetterHelp, H-E-L-P dot com. In the bulwark today, Kim Whaley, who actually is the lawyer, is pointing out that Trump's lawyers, who are all officers of the court,

are arguing in their final brief, basically using the big lie in their briefs that when Trump was carrying out his supposed duties as president, that there were, quote, they are vigorous disputes and questions about the outcome of the 2020 election, and that there was, quote, extensive information about widespread fraud and irregularities in the 2020 election. She says, look, these have all been refuted. These are clearly lies and says, you know, the falsehoods are so egregious, the lawyers should be sanctioned for misconduct, for including those falsehoods in their brief. But it is rather extraordinary that what Trump is now doing in his defense or his lawyers on his behalf are, in fact, invoking the big lie to justify his behavior. So speaking of audacious, your reaction? Well, so this is a problem as an initial matter

that Judge Chutkan's going to have to deal with because the only real defense of Donald Trump, and it only gets you part of the way, but if you're a defense lawyer who's going to defend Donald Trump, this has got to be part of your defense, right? He genuinely believed the bullshit that he was propagating. That was not simply self-serving, motivated reasoning. There was some good faith reason for him to believe that. And here's why he believed it. Now, once you go down that road, you're propagating the big lie, right?

You're saying, hey, you know, he actually believed this and there were good reasons to believe it. Well, actually, there weren't good reasons to believe it. There was no reason to believe any of it except motivated reasoning that it might keep you in power. And so it puts you in a very difficult position as a defense lawyer where the best defense of your client is to propagate the same fraudulent nonsense that he was propagating, that he's, by the way, charged with, among other things, fraud

for propagating. I don't want to sound entirely unsympathetic to his lawyers here. They're ethically obliged to make the most vigorous defense for him that they can, consistent with other obligations. But it's a really fine line they have to walk because they're not allowed to lie to the court. They're not allowed to make arguments that have no reasonable factual basis. There are constraints on their ability to do it. And there's a very narrow path that they can walk here in the pursuit of those things. Because it's the new year, I forget who I'm quoting here. But this whole question of what Trump actually believed and its relevance, didn't Jack Smith make the point that Trump's state of mind really does not

absolve him? So for example, if I believe that the bank made a mistake on my account, I am not therefore justified in robbing the bank. Or if I go in and I hold up the bank, you know, and take $100,000 out, it would not be a legitimate defense for me to say that I genuinely believe that they had made an accounting error on my account. That does not wipe away the crime. Whatever I thought, no matter how sincere my belief was. That is exactly why I started by saying it is not an adequate defense to say that he sincerely believed this, but that any defense you might muster would have to include that, right? It has to have other elements too, because there are some things he did like, you know, just getting on the phone with Brad Raffensperger and threatening him. You're not allowed to issue

threats just because you legitimately believe that you're right on the merits. By the way, a bank over the weekend did make a huge accounting error to my detriment. And I discovered it on January 1st. And it sent me into a murderous rage. And this is true, by the way, it was many, many, it was thousands of dollars. And it sent me in a murderous rage. And the law deterred me from doing something that I might otherwise have done involving buildings and property damage and injuries to people on the phone who were not. Your example hits home. Well, I'm glad to hear, by the way, that you're restrained. I was also probably fortunate that the banks were closed on January 1st. It was a bank holiday. Yes. And on January 3rd, which is to say yesterday,

on January 2nd, I wrote them a very, very angry note demanding that this be corrected. And yesterday, they acknowledged error and are restoring my money. And the money is back. So one other development, let's just veer off into the area of speculation, but something else happened when you and I were both on vacation. We got that report out of Michigan, the story of more tapes. Lordy, there were more tapes of Donald Trump urging members of the Elections Commission, Elections Board there, not to certify the election. We don't know how many tapes there are out there, but is this the kind of thing, first of all, do you think Jack Smith already knew about that? And if he didn't know about it, is this something that's going to be

folded into the prosecutions? What do you think? The investigation here has been so broad and so intense, and the powers of the federal government to get information are so powerful that my working assumption is that these things that may not have been previously known to the public may well have been previously known to Jack Smith, who's had a, you know, now three-year between the Justice Department pre-Special Counsel and the Office of Special Counsel. It's about three years of investigation. That said, you know, not always the case. And, you know, remember that Leon Jaworski learned about, or Archibald Cox, to be precise, learned about the Watergate tapes from congressional hearings, right? Like, there are always surprises, and it wouldn't entirely surprise me if

this were one of them. As to how it fits into the case, I don't know. Well, we are now moving into warp speed, though, as I think you've laid out in terms of the calendar. We're going to see what the D.C. Circuit does, what the Supreme Court does. These are huge decisions coming down. We may be having a trial as early as March. I thought it was very interesting in the twilight of Ron DeSantis' campaign. I highlighted this in my newsletter this morning. NBC reporter Vaughn Hilliard goes up to Governor DeSantis and says, so if Donald Trump is in fact convicted of a felony and wins the nomination, would you still stand behind him at the convention? And Ron DeSantis, brave Ron DeSantis, brave Sir Ron, ran away,

would not even answer the question. And of course, this is again, one of the unknowns of 2024. What does the Republican Party, and more importantly, what does the general electorate think about voting for a convicted felon or somebody still facing felony charges for president of the United States? I mean, this is a real issue that quite frankly, I don't know whether Ron DeSantis and other Republicans just hope it goes away, whether they're waiting for a unicorn to come over the hill and rescue them from this. But again, this is going to be one of the big questions of 2024. It won't be,

not just the legal outcome, but the political reaction to the legal outcome. Yeah, I actually think the legal outcome is more certain in my mind than is that question, the political reaction to the legal outcome. On the one hand, I've watched federal criminal cases my entire adult life. And so I feel like I have a really large end sample of what federal prosecutors are and aren't capable of, how juries behave, how judges behave. I feel like the judicial system's handling of the case of Donald Trump is a relatively predictable, some genuine variables, some genuine uncertainties, but we have a lot to compare it to in terms of other high-profile criminal cases. We know how the Justice Department behaves, right? How the

electorate responds to the conviction of a presidential candidate whom it has just nominated is a matter of which we have no N sample. It's an N of zero, unless you count Eugene Debs, who was not a good analogy. Not quite. And I do think that every prediction that has been made about the balloon bursting based on some event that's going to be three months from now has been wrong. And so we should not assume that we can predict with any confidence what the effect of a criminal conviction would be, except in one very limited sense, right, which is the following. There is, I think, no person in America who right now it is unthinkable

that they would vote for Donald Trump. But if you convict him, they'd be like, all right, now, now I'm going to vote for him. So there's no political upside to being convicted. And similarly, I think it is safe to say that the bottom will not fall out of Trump's support. His core base is going to support him even if he's locked up. And so the question really is, what is the swing? Is the swing 1%? Is the swing 7%? There's some group of people who right now say, okay, I could vote for Donald Trump. If he were a convicted felon, would not say that and would either stay home or would write in somebody else or would even vote for Biden. I think the meat of the question is what is that percentage? And is it a percentage that takes Trump from the department of running even with Biden to the department of being completely

unelectable? Or is it smaller than that? And no one knows the answer to that. And all the polls that measure that I don't think are predictive in that sense, because the many things that you think, well, if this happened, this will be the reaction, this will be my reaction when it actually happens, it's completely different. But to your point, we've been waiting for that moment. And every time it comes, the window moves. People say, well, behind the podium, pulls his pants leg up, shows the ankle bracelet on him and says, I wear this as a badge of honor. I wear this for you. And the place goes absolutely out of its mind. I want to add one thing that there's another moment that may be just as important as the moment of conviction, which is the moment of sentencing. And Donald Trump will not be in jail. He will almost certainly receive an appellate bond,

by the way, should in my view. But he could very well be sentenced in one or more cases. The sentence that he would get if he were convicted in the January 6th case would be lengthy. And you can rack up a lot of time by trying to overthrow the United States government. People talk about the moment of conviction, but there's a moment at which Judge Chutkin would, assuming he were convicted, look at him having, it's probably three months after conviction. She's gotten a pre-sentence report. Right in the middle of the campaign.

Okay, go on. Yeah. Right. And she's going to look him in the eye and say, I find that you did this in abandonment of your oath, in selfish, blah, blah. She's going to make some really dramatic, not dramatic because she's a drama queen or anything, but dramatic because the facts are dramatic. And she's going to say, and I sentence you to serve X amount of years in prison. And that's a pretty interesting moment too. Yeah, that's pretty interesting.

I would think that would be an understatement of today's podcast. Pretty interesting. But again, is it a powerful moment that causes nobody to abandon him? Is it a powerful moment that causes 1% to abandon him? Is it a powerful moment that causes 10%? You know, nobody has any idea what the answer to those questions are. That is an important point because we go into all of this and I think there are certain assumptions about the way things are going to play out. And there are so many variables because

as you point out, there are absolutely no precedents. There's no historical parallel that we can draw on. Ben Wittes, thank you so much for joining me again on the latest edition of Trump Trials. Ben? We're going to be back next week, and we're going to do this all over again. We haven't gotten to say that in a while. We are going to do this all over again.

In fact, thank you all for listening to the Bulwark podcast, because I will be back tomorrow, and I'll do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown. Bye.