The Bulwark Podcast - When the Hammer Comes Down

Episode Date: August 23, 2023

Almost nothing concentrates the mind more than an indictment, so expect other minor players in Trumpland—especially in Georgia—to flip on the don. Plus, the constitutional argument for blocking Trump's candidacy. Ben Wittes is back with Charlie Sykes for a special edition of The Trump Trials. show notes: https://www.lawfaremedia.org/article/dry-run-ouster-county-official-insurrectionist-creates-ominous-precedents-trump

If it's a flat or a squeal, a wobble or peel, your tread's worn down or you need a new wheel, wherever you go, you can get it from our Tread Experts. Ensure each winter trip is a safe one for your family. Enjoy them for years with the Michelin X-Ice Snow Tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin Tread Experts dealer near you at treadexperts.ca slash locations. From tires to auto repair, we're always there. TreadExperts.ca

This is an ad by BetterHelp Online Therapy. October is the season for wearing masks and costumes. But some of us feel like we wear a mask and hide more often than we want to. At work, in social settings, around our family. Therapy can help you learn to accept all parts of yourself so you can stop hiding and take off the mask. Because masks should be for Halloween fun, not for your emotions. Therapy is a great tool for facing your fears and finding ways to overcome them. If you're thinking of starting therapy, but you're afraid of what you might uncover, give BetterHelp a try.

It's entirely online, designed to be convenient, flexible, and suited to your schedule. Just fill out a brief questionnaire to get matched with a licensed therapist and switch therapists at any time for no additional charge. 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.

It's August 23rd, 2023, and another inflection in the ongoing legal saga of the people versus Donald John Trump. On this episode of The Trump Trials, we're going to talk about flipping witnesses, perp walks, and a former president's latest bail restriction. It's just another summer day in Trump's America. But first, let's talk a little bit about tonight's debate. If past is any indication, there can be a lot of hot takes, punditry and gross over analysis for an event that might not mean anything at all. But that doesn't mean that it won't make any difference. I mean, if Ron DeSantis has a really, really bad night, that might be it for the Florida man. On the other hand, if he's engaging, funny, effective and remotely human, he just might turn

things around. But how likely do you think that is? Somebody actually asked me. So what would surprise you if it happened at the debate tonight? If Ron DeSantis shows up as an actual human being who doesn't read from the talking points that he's already telegraphed in that memo. But, you know, just take a step back. I know we keep saying that we shouldn't allow ourselves to be numbed by all of this, but we do. If you think about this moment, where we are at on a Wednesday where eight Republican candidates are going to be debating here in Milwaukee. By the way, it's really, really hot here. But they're going to be on a stage without the nearly prohibitive front runner.

Meanwhile, tomorrow, he's going to be charged, arrested, mugshot for the fourth time. I mean, I talked to David Smith from The Guardian about this yesterday. I pretty much said the same thing that I said on the podcast with Tom Nichols. I said, it's just impossible to overstate how surreal this moment is that you have a former president of the United States who is going to be charged with another 13 felonies. And this will be the fourth time this year. We will see his mugshot. He's going to be weighed. He's going to be out on bail. And yet he is leading the Republican field by basically 40 points. I mean, we've been battered and bruised for the last eight years. But this is kind of an extraordinary moment, this split screen in American politics,

where you have these Republican candidates running for president over here. And on the other side of the screen, you have Donald Trump facing more felonies. And Republican voters are sitting back and they're looking at this and going, yeah, we're pretty much okay with this guy. Orange is the new black. So it is extraordinary. In my Morning Shots newsletter, and by the way, if you don't subscribe, I would appreciate if you would at least consider it. We really are very, very grateful for all of our subscribers and particularly the Bulwark Plus members. And I offer kind of a modest suggestion for tonight's debate.

You know, part of the problem is there are just too many candidates on the stage. And that means that even though they may have 100 minutes of talk time, just do the math. You have eight candidates means that they'll get about, what, 12 and a half minutes each to get their big breakout moment to express their vision. How likely is that to happen? I mean, these debates just come down to a couple of soundbites. But I was thinking, and again, I don't expect anyone to take my advice, although there may be one moment where they do, which I'll get to in just a moment. But I mean, the moderators are in kind of a tough spot because time is at a premium.

And you know that all these guys are going to be, and women, are going to be showing up with the talking points in their, you know, stump speech blather. And when you ask a question, there's always that chance you'll get one of those meandering on the one hand, on the other hand, convoluted rationalizations. So one way that they could deal with this is to ask a series of direct yes or no questions and ask for a show of hands. And this has been done before. I remember this happened four years ago. Wasn't it one of the Democratic debates where everybody was asked to raise their hands on a number of issues involving health care and immigration? So I think, and it is possible that Brett Baier might do this. But here's my suggestion.

You know, say, OK, everybody on the stage, we can talk about this at greater length. But I want to ask you a direct yes or no question. Please raise your hand. If you believe that Joe Biden won the 2020 election, how many of you here believe that Joe Biden won the 2020 election? Then you're going to have a moment, right? They raise their hand or they won't raise their hand. Okay, that would be number one. Now, if I was more ambitious, if I was there, I would keep going on. I would say, okay, how many here think that Mike Pence did the right thing on January 6th by resisting Donald Trump's pressure to throw out the electoral college votes, you know, cast by millions of

Americans? You know, how many people here, raise your hand, if you think Mike Pence did the right thing on January 6th? Right there. We can talk about it later, but that's a defining moment. Don't you think so? Want another one? How about, how many here? Raise your hand. If you trust Vladimir Putin more than U.S. intelligence services? Now, you could set that question up by reminding people that back in Helsinki, Donald Trump very specifically and explicitly said that he trusted Vladimir Putin more than U.S. intelligence services. So you could read that quote and say, okay, how many here today standing on this stage trust Putin more than U.S. intelligence services? Okay, if you read Morning Shots, you know that I have a bunch of other questions.

For example, how many of you here would support congressional efforts to defund the special counsel investigation into Donald Trump? That would make news, wouldn't it? Somebody's hand would go up. You know that Vivek's hand would go up. I don't know about anybody. I mean, his hand will always go up. How many of you here are prepared to vote for a convicted felon for president of the United States? That's my favorite. Okay. This is the Law and Order Party. All eight of you claim to be supporters of the rule of law and law and order.

How many of you here would vote for a convicted felon in November of 2024? Raise your hands. Okay. We're not. How many of you would pardon Donald Trump if he's convicted of crimes by a jury? If you have more time, you see how this would go. I mean, and also, you know, think about the clarity of this. You know, you really do cut through the blah, blah, blah. Let's have a show of hands. How many people here, if you were president, would ban Muslims from entering the country? How many of you here would sign a nationwide six-week abortion ban? Yes or no, please? How

many of you would just raise your hand if you would sign a nationwide six-week abortion ban? I'm guessing that pretty much everybody, maybe not Christie, would probably say yes. Give Rhonda Sandis a little time in the barrel. Rhonda Sandis has described Russia's invasion of Ukraine as a territorial dispute. Let's have a show of hands. DeSantis has described Russia's invasion of Ukraine as a territorial dispute. Let's have a show of hands. How many of you think Russia's war on Ukraine is just a territorial dispute? Okay, I mean, I have some others as well, which you can read in Morning Shot. How many of you think that 9-11 may have been an inside job? I mention this because Vivek Ramaswamy is going through some things. He has spent the last couple of days trying to wiggle and spin

and lie his way out of the fact that he was really suggesting that maybe 9-11 was an inside job, which is really kind of classic crackpotism. You know, Philip Bump says that there's sort of an inevitable link between conspiracy theories about January 6th and about 9-11. But you know, I think that even in mainstream Michael World, if that's a thing, 9-11 trutherism is still a little bit out there. And Vivek is not making things any better because he denies saying what in fact he said. And then after denying it, the Atlantic Magazine comes out and says, actually, here's the tape recording of him saying it. So I think you can be sure that he's going to be attacked. I think it is fair to say, you know that Chris Christie is going to go after Trump. And, you know, somebody was saying,

what are you looking for? And, you know, I said, I'm going to be looking for how awesome Chris Christie is, how awful Ron DeSantis is, and how many people beat up on Vivek. I mean, Vivek's kind of a free fire zone. Nikki Haley is looking for somebody to spike with the stilettos, right? What's the downside of her going after Vivek? She's not going to hurt her chances, her pretty much non-existent chances to be vice president if she does that. In fact, if you think about it, there's really no downside for any of the other candidates to go after Ron DeSantis. There is no cult of personality around Ron DeSantis. In fact, if you aren't Tim Scott and you are running not for president, but for vice president, isn't the best thing you could do would be to, you know, look tough by going after Ron DeSantis because you take out Ron DeSantis. And at the same time, you're sucking up

to the orange God King who might pick you to be the vice president. So I think all of those things are going to be interesting. And then, of course, you know, there's going to be a lot of spin about the timing of Trump's, oh yeah, before I forget, of course, Trump is counter-programming. He is doing what I described in the newsletter as a mutual tongue bath with Tucker Carlson, the disgraced, fired former Fox executive. And apparently that's going to be streaming on X, you know, the site that used to be known as Twitter. Kind of a comedown, but that's his counter-programming. And then, of course, the ultimate counter-programming will be when he surrenders himself and has the perp walk, and that turns into this huge circus. And we'll talk

about this later in the week, because like a lot of folks around here, I suffer from a little bit of PTSD, you know, having seen these gambits by Donald Trump work. But there's also a contrarian streak in me that wants to challenge this sort of growing media narrative. Have you noticed, I'm going to talk about this on the next couple of podcasts, so, you know, just make sure you tune in. There's almost this new, you know, conventional wisdom among the smart kid pundit class that all of these moves by Trump are, you know, we need to appreciate the genius. Look what Trump has done. You know, he's actually now going to steal all of the thunder from the Republican candidates

by making a big deal of his surrender down in Georgia. You know, I'm not sure that all of this stuff is as smart as it looks. I'm not so naive as to think that it might not give him a short-term bump. And I said this the other day, the split screen between the other alternative, you know, relatively normal Republican candidates here and Donald Trump, the accused, charged felon out on bail over here, I'm not sure works for Donald Trump in, even in, you know, Earth 2.0, whichever Earth we're in, Earth 1.0, where reality is so distorted. I'm not sure that diminishing himself by talking with Tucker Carlson on ex-Twitter is really the galaxy brain genius move that a lot of people say. I mean, there seems to be this new default setting that whatever Trump does is going to be so much smarter. Now, in part, I do understand that line because he has pulled this off. And, you know, if you're comparing the political genius of Donald Trump versus the political genius of Ron DeSantis,

I mean, one of Ron DeSantis' great accomplishments is that he makes Donald Trump look like he knows what he's doing in contrast. So again, that debate is tonight. We're going to have a live stream, a chat, you know, check it out. We have some of the details in our newsletters if you want to join with the Bulwark team to watch that. And of course, we'll be talking about that tomorrow and the next day. But today, again, we have to focus on this, the extraordinary legal developments involving Donald Trump, not just in Georgia, but with a new flipped witness, new filings in the Mar-a-Lago case that I think are objectively a BFD. And who better to talk with this about than our good friend Ben Wittes, editor-in-chief of Lawfare, who amazingly enough, folks, is talking to us today from beautiful Iceland. So good morning, Ben. You're joining us from the airport in Reykjavik.

Hey. You're in Iceland. I am in Iceland as of about morning, Ben. You're joining us from the airport in Reykjavik. Hey. You're in Iceland. I am in Iceland as of about 10 minutes ago. You landed from Norway after many military operations against the Russians in Scandinavia. Yes. So I had a glorious special military operation against the Russians in Norway last night. Picture the John le Carre-esque scene. It's kind of a misty evening. It's dark.

I am outside the embassy entirely by myself. There are no police around. So if the Russians had wanted a chance to come get me, this was the moment to do it. If you look at the live stream, I admit that I'm a little bit nervous about it. And on the other hand, the conditions for projecting were kind of perfect. I was right up there, right up front. And so I started projecting and immediately street traffic develops around it. You know, just people wandering in, taking pictures, and it immediately becomes really safe because there are people there. People had things they wanted to say to the Russians, and it was glorious. I have things I'd like to say to the Russians. Okay, so what did you project on the Russian embassy? Oh, my usual mix of symbols and, you know, expletives in Russian and, you know, things that warm Ukrainian hearts when they see them projected on the Russian embassy.

Okay. So while you are waging this one-man psychological war against Russia, you've been tracking some of the BFDs back here, I assume? I have, yes. Because remember, Charlie, one of the great battlefronts in the war for a free Ukraine is Fulton County Courthouse. And one of the battlefronts for a, in the long run, free America is, you know, Donbass.

So we, you know, we just have to keep in mind that this is all one struggle in the largest sense. Well, let's talk about the struggle over the last 24 hours. We had this rather extraordinary filing by Jack Smith in the Mar-a-Lago case where the security aid is apparently flipped. It's never a good thing when a witness flips. Here's the lead from Politico. A Trump employee who monitored security cameras at Donald Trump's Mar-a-Lago estate abruptly retracted his earlier false grand jury testimony and implicated Trump and others in obstruction of justice just after switching from an attorney paid for by a Trump political action committee to a lawyer from the Federal Defender's Office in Washington.

Now, according to this filing from Jack Smith's office, I think it's Yusel Tavares, the director of information technology at Mar-a-Lago, initially testified to the D.C. grand jury that he was unaware of efforts to erase videos from the security cameras, but they squeezed him. They said, okay, you're under investigation for perjury. He basically now dumped his Trumpist lawyer and has told the prosecutors, yeah, I lied to you about that. I did talk about this attempted erasure, this attempted cover-up, and he has fingered Donald Trump and others. So talk to me about this, because this seems like a really extraordinarily bad development for Donald Trump. And it also makes the lawyers and the judge look pretty bad, too. I just throw that in. It is a bad development for Trump. It does make

the lawyers look bad. But there's a more important element of it that has relatively little to do with this case in particular and everything to do with the January 6th cases, both in federal court and in Fulton County. So this case involves relatively few unindicted co-conspirators. There are a few people, Mr. Dale Rivera and Walt Nauda, who have been indicted along with the former president. And then there are a number of people who, you know, are alluded to and who may have some jeopardy, but you don't have a list of, say, 30 unindicted co-conspirators and 17 or 18 co-defendants like you do in Fulton County, and you don't have six very prominent unindicted co-conspirators who everybody knows exactly who they are, at least five of them,

as you do in the case of the January 6th case. And what this incident shows, which of course we already knew, but was kind of a hypothesis, is that, you know, these cases are going to simplify by people pleading out of them. And so here you have, in the initial phase, you have a whole lot of people who are going to be willing to go down with the ship, and they're going to lie to grand juries, and they're all going to get the same lawyers who are going to be paid for by the don of the organization. And it all feels very safe. And it feels like the dangerous thing is breaking ranks. But then, you know, you get indicted. And there is nothing like an indictment to concentrate the mind. And you've now lied to a grand jury,

you're represented by the firm. And the firm looks more like a John Grisham firm than it does like, you know, Arnold and Porter. And there are dozens of these people, literally dozens of them, you know, who are relatively minor players who have really important information, did some bad things and will flip. And you're going to see it in Fulton County. It's going to be the reason why Fannie Willis is going to be able to gain momentum

faster than her skeptics think she is, because she's got 30 unindicted co-conspirators and 18 co-defendants to work with. And one by one, those people are going to face the same question that this gentleman did, which is, when the hammer comes down, do I want to be under it or not? And a lot of those people are going to say no. So when I heard this story about the, you know, dropping the lawyer and then changing the testimony, inevitably, I thought about the story of Cassidy Hutchinson. It seemed like the same story where she had had a Trump-financed lawyer and you would basically told her, you know, you don't remember anything, don't say anything. And she decided that she actually wanted to tell the truth. So she had to dump the Trump-paid-for lawyer, got a different

lawyer, and we know what happened. She testified about this. Just in terms of legal ethics, can you just talk to me a little bit about this whole world of lawyers who have these very clear conflicts of interest? Because in these cases, at some point, the defendant or the witness realizes the lawyer that Donald Trump has foisted on me does not necessarily have my interests first. He is really not really working for me. Doesn't that really raise some kind of fundamental issues about legal ethics and who these lawyers really are working for and in whose interest? Well, it does. They're not easily addressable issues, however. So let's start with the big picture and work our way down. It is a good principle of being a client, you know, who has to hire lawyers or has to have lawyers that you never, ever let anyone pay for your lawyers whose interests are

not concurrent with yours. And I'll give you a really personal example of this. An individual whom I will not characterize, but I invite people to read his pleadings about me in which he accuses me of a RICO conspiracy to destroy his life, sued me. And I have a umbrella policy that would allow me to foist this off onto my insurance company. But I didn't do it because the insurance company's interests may be to settle this

matter and make it go away. And I cannot settle with somebody who is accusing me of a RICO conspiracy to destroy his life. And so I spent an inordinate amount of money on lawyers to make this be dismissed in a fashion that was as clear as possible that there was no merit to it. So that's a sort of microcosmic, unimportant example of what this is a macrocosmic, important example of. If you let Donald Trump's political committees pay your legal fees, and you are somebody whose actual interests do not lie in going to prison for Donald Trump, they do not lie in lying for him before federal grand juries. That is an enormous strategic mistake on your part. And the problem is it is an ethical problem for lawyers to advise people to do things that aren't in their interests. The problem arises because all conflicts of

interest or most conflicts of interest are waivable. And these individuals, some of whom are not sophisticated actors, some of whom are sophisticated actors, but they're under pressure, both political and sometimes the mob to stay the course. And they're also under enormous financial pressure because hiring lawyers is expensive, and a lot of them don't have the resources to do it. And so then they're presented with what seems like a pretty innocent waiver, which is, hey, I have a conflict of interest. I also represent 30 other people who aren't going to cooperate with this investigation, just like you're not, right? And they sign the waiver. And so that actually, to some degree, takes care of the legal ethics problem, at least formally. I think it's

a gross thing, but it's a very hard problem. Hey, folks, this is Charlie Sykes, host of the Bulwark podcast. We created the Bulwark to provide a platform for pro-democracy voices on the center right and the center left for people who are tired of tribalism and who value truth and vigorous yet civil debate about politics and a lot more. And every day we remind you, folks, you are not the crazy ones. So why not head over to thebulwwork.com and take a look around? Every day we produce newsletters and podcasts that will help you make sense of our politics and keep your sanity intact. To get a daily dose of sanity in your inbox, why not try a Bullwork Plus membership free for the next 30 days? To claim this offer, go to thebullwork.com slash charlie. That's thebullwork.com forward slash charlie. We're going to get through this together.

I promise. If it's a flat or a squeal, a wobble or peel, your tread's worn down or you need a new wheel, wherever you go, you can get it from our tread experts. Ensure each winter trip is a safe one for your family. Enjoy them for years with a Michelin X-Ice snow tire. Get a $50 prepaid MasterCard with select Michelin tires. Find a Michelin Tread Experts dealer near you at treadexperts.ca slash locations. From tires to

auto repair, we're always there. TreadExperts.ca. 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 at work and social settings around your family? 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. Okay, so speaking about flipping witnesses and where that's all going, the Mark Meadows story has actually gotten very, very interesting. I mean, he seems to be walking quite a tightrope. He's been indicted down in Georgia. He was in the news this week, obviously, for filing a motion to have his case removed to federal court. He also wanted an extension on his arrest and asked Fannie Willis, hey, can I not have to show up and be perp walked until we get a ruling on this federal case?

And she basically slam dunked him and said, no, I gave you I gave you plenty of time. You're going to be treated like every other defendant. But it certainly looks from the outside. And when I get your take on this is if he is providing some valuable cooperation to Jack Smith in other cases. For example, it's been reported this week that he told the grand jury, he told the special prosecutor that no, Donald Trump did not have a standing order to declassify all records that went from the White House down to Mar-a-Lago. Now that is really one of Donald Trump's central defenses that he ordered these things declassified or that there was a standing order. And apparently both Meadows and Mike Pence are saying, yeah, we don't know of that. That

didn't happen. And then, you know, the chief of staff would generally know about something like that. So give me your sense about where Mark Meadows is right now and where he might be going. And you think that Mark Meadows is going to become a cooperating witness for Jack Smith? Let's take the easy one first. He is clearly not cooperating in Fulton County. He is indicted along with everybody else. The curiosity of his federal position starts even before the point that you made about ABC's reporting. it starts with the fact that he is not listed as an unindicted co-conspirator in the case, right? There are six unindicted co-conspirators, not seven. He's kind of weirdly missing from the federal case. And given the facts that are alleged about him in the Georgia State case, which, you know, he's clearly a, it's not like

these facts were unknown to Jack Smith. The omission is interesting, and it raises a question of what his status in the investigation is. Then we do have this leak that clearly, at least in my opinion, comes from, likely comes from the Meadows camp, that appears to contradict the president's position in exactly the way that you say. All that said, I don't believe he has a cooperation agreement yet. And the reason for that is, I think if he had a cooperation agreement, first of all, it's very hard for me to imagine, given what's alleged about him in Georgia, that he would have a cooperation agreement without a plea of some kind. It's very hard to see how he's not a co-, unlike these other people, that he has clearly given testimony that they regard as helpful. It may be that one of the reasons there is no plea deal involving him yet, there is no cooperation agreement, is that there's this other state process in Georgia that he's vulnerable in, and he wants to resolve everything

in one shot. Which, by the way, would be quite, if you were representing Mark Meadows, you don't want to be a cooperating witness in the federal system, just so Fannie Willis can throw the book at you. You want to figure out a way to cooperate with everybody. And so my guess is that he is cooperating, but there's no formal cooperation deal yet. Yet. Yet. And that there will be sometime in the next few weeks or months, a plea deal that has, you know, a federal component. I mean, it's, it may be more than one deal, but he will resolve his issues both with the federal government and with the Georgia state government. And so that he will be in a position to be in a cooperating witness in both rather than a cooperating witness

in one who's got the sword of Damocles of the other hanging over his head. But that's just a guess. I really don't know. Let's talk about what's going to happen tomorrow. We don't know whether it's going to be tomorrow during the day or during the evening. It's going to be circus-like. It will be different for Donald Trump in Fulton County because he will be treated like other defendants. And because the Fulton County jail is a famously bad place.

Famously bad shithole. Yeah, it's ugly. But, I mean, the sheriff has said that they're going to take his mugshot. There are reports that he's going to be weighed. And also, they've put a cash bail number on. He's got a bond agreement. He says he's going to be released under a $200,000 bond. And it has very strict and very, very pointed restrictions. And the restrictions are aimed at Donald Trump rather than his co-conspirators. He's not allowed to communicate with witnesses or co-defendants about the case, except through

lawyers. He's barred from intimidating witnesses or co-defendants. He's forbidden from making any, quote, direct or indirect threat of any nature against the community or to any property in the community, including in posts on social media or reposts of posts by others on social media. We could have a running pool on how long it's going to take Trump to violate the terms of that. But, you know, once again, we have the question, how much leeway are the judges going to be giving him? I mean, in this particular case, it sounds like the Georgia judge is, you know, putting him on a relatively short leash. But of course, that only matters if he's prepared to do something about it if and when Donald Trump violates those terms.

What do you think? First of all, I think it is a credit to the DA's office that they have insisted on terms like this. It is in the public interest that somebody do this. You know, because she is in no sense a part of the Biden administration, right? She's not really vulnerable to the same attacks that he can make on Jack Smith through Merrick Garland through Joe Biden. You know, it's an independent state system and they have leeway to, you know, depart from the kid gloves that the federal government kind of needs to engage in to some degree. I think the wild card here, as you rightly point out, is the judge. The judge in this case is not the judge who supervised the Fulton County Special Purpose Grand Jury, Judge McBurney, whom those of us who

spent quality time with the Fulton County process, I think almost uniformly came away with a lot of respect for. He was no nonsense. He was very businesslike. He was very sensible in his rulings. You know, we don't really know, at least I don't have an instinct for what kind of judge the trial judge is. We're going to learn that in the context of the pretrial rulings. But we're starting with a set of restrictions that give that judge a lot of leeway to say, hey, you just crossed a line, dude. And it's a line that is a condition of your $200,000 bail. This is an ad by BetterHelp Online Therapy. October is the season for wearing masks and costumes, but some of us feel like we wear a mask and hide more often than we want to, at work, in social settings, around our family.

Therapy can help you learn to accept all parts of yourself so you can stop hiding and take off the mask. Because masks should be for Halloween fun, not for your emotions. Therapy is a great tool for facing your fears and finding ways to overcome them. If you're thinking of starting therapy but you're afraid of what you might uncover, give BetterHelp a try. It's entirely online, designed to be convenient, flexible, and suited to your schedule. Just fill out a brief questionnaire to get matched with a licensed therapist and switch therapists at any time for no additional charge. Take off the mask with Better Help. Visit betterhelp.com today to get 10% off your first month. That's betterhelp, H-E-L-P.com. So I wanted to get your initial take on this other big issue that people are discussing. And I had a long discussion yesterday on Nicole Wallace's show with Andrew Weissman, where I was completely and totally out of my depth.

This took place after an interview with Judge Ludig. As you know, Judge Michael Ludig, you know, legendary conservative judge, has written a piece with progressive legal scholar, Lawrence Tribe, endorsing the theory that, you know, Section 3 of the 14th Amendment automatically disqualifies Donald Trump from the presidency because he's an insurrectionist. And they, of course, are going off the work of two other legal scholars who have written a law review article for the University of Pennsylvania Law Review, again saying that this constitutional provision very clearly applies to Donald Trump, and that it is self-executing, that Donald Trump should not be allowed to be president, should not be allowed to even be on the ballot. I guess my question is, I still don't get it. I

don't understand the mechanisms by which it works. I mean, ultimately, this would require a majority of the U.S. Supreme Court to make a ruling, and they would have to make that in a very, very timely way after some dispute, after a Secretary of State or something makes a ruling. But still, in the absence of some finding of fact, some adjudication of Trump's role, I just don't see how you get to the U.S. Supreme Court invoking the Constitution to throw Donald Trump off. It feels like, you know, a wish for a deus ex machina, some great thing that is going to, you know, save us. And, you know, what I said was, look, guys, no one's coming to save us. This is an interesting academic exercise, but I don't think that it's practical

in any realistic way. What do you think about it? I know you and your colleagues have thought about it, but I mean, I find the articles persuasive. I agree, but I just don't know how you get from point A to point B. And also, I'm concerned that it's just going to be very messy if you have the Secretary of State in Michigan sort of just unilaterally declaring that no one should be able to vote for Donald Trump in November or the Secretary of State in Wisconsin. I mean, I just don't see how that really works. You've thought about this, Ben. You've thought about this more than I have. to that it really should, which is there is a law professor who a year and a half, two years ago, wrote a substantially similar article to the Bode and Pearson piece. This is Gerald Magliotta.

And it was largely ignored for exactly the reason that you describe, except by one Roger Parloff writing in Lawfare, who covered the litigation in the 2022 elections over this precise issue very thoroughly and very carefully. And so, like, the issue isn't new. It's been lurking around there for a while. Will Bode is, I know him better than his co-authorauthor is a superb legal scholar at the university of chicago and uh you know this is a very serious piece of work and it's not surprising to me at all that a duo like jane michael ludig and larry tribe who by the way have been friends for many many years you know are engaged by it and advocating it now together. There's two arguments for pushing it. And one of them is that the text of the Constitution is super, super clear, right?

And so you have to ask the question, what is textualism and originalism good for, if not to say that a disqualification provision that covers people who have engaged in insurrection covers Donald Trump? So one possibility is that it's a kind of a win-win from a jurisprudential point of view. Either you get the interpretation that actually disqualifies him, you get the disqualification deus ex machina, or you get something else, which is you force the Supreme Court to behave extremely politically in order to avoid that. Not in a fashion that we're used to seeing, which is, you know, the Supreme Court behaving like they have strong policy views of things that aren't always consistent with their, but, you know, really intervening in the face of very clear language to protect Donald Trump.

And so I think part of the attraction of it for people, you know, is that if you win, you win. And if you lose, you lose really righteously. I think that's probably the explanation for the attraction. I think it has a low probability of success for the simple reason that there are six votes on the Supreme Court who are likely to be skeptical of it for some combination of political and I actually can't think of other reasons. I think it's right as a matter of constitutional law and history. You know that I would like nothing more than for Donald Trump to be, you know, summarily removed from American politics. You know that I would regard this as a great moment. So my skepticism about this, though,

is that, okay, you go to the Supreme Court, and then maybe this will happen, and they will look at this and they go, okay, so the 14th Amendment also provides due process, and none of this has been litigated. You say, Charlie Sykes and Ben Wittes say that Donald Trump engaged in insurrection. Where is the actual court ruling or finding of fact that backs that up? Just simply because you and I believe that, and we say that, they will say, where is the due process? And you are asking us to do something really radical and extreme, which is to deny Americans the right to vote up or down on this candidate for president of the United States, which from a political point of view, I don't know, is going to be perceived as the righteous position. I mean, you and I, I think, understand

the issues here, but I think the blowback to basically saying you people who claim to be for democracy are now saying that you are not even going to allow the Republican nominee for president to be on the ballot. Boy, I sometimes be careful what we wish for here. Okay, so first of all, I agree with you. I think there's a very decent chance that that is what the supreme court will do with this although by the way just as a bracket this point i'm happy to explain it i actually think that decision would be wrong as a matter of constitutional law but i can totally understand how you might get five or, dare I say, six votes for that view. But then you have two jurisdictions that have alleged facts that are consistent with

insurrection, both of which want to go to trial before the election. And so imagine that we had a ballot access skirmish that resulted in a Supreme Court ruling that says, hey, there's no finding that he engaged in insurrection. There's just the colloquial use engage in an insurrection. We're just going to say, in the absence of a conviction or some form of due process, we're not going to find disqualification. So then you have two possible mechanisms of due process. The first is that you've got these two pending cases that allege it doesn't charge the crime of insurrection, but they both charged the crime of, you know, trying to overturn a federal election by illegal means and retain power illegally. And so you would have a, I think, a press to get those cases done and then go back to the Supreme Court, go back to the ballot access question and say, all right, you said there was no finding. We've had a full due process criminal trial proving X, Y, and Z beyond a reasonable doubt. Now we want to strike him from

the ballot. Which trial? I mean, Jack Smith very specifically did not charge him with inciting the insurrection. But I think you would have a really interesting question at that point. You'd have a better case, yeah. You'd have a really interesting case. Whether you have to use the word insurrection in your criminal due process, but there's a second mechanism. So let's say the Supreme Court says, first of all, there is a gentleman, and again, Roger Parloff covered this very well. He was a county commissioner in New Mexico, I believe, and he was actually thrown out of office. The state court found that he was disqualified under the 14th Amendment for having participated in January 6th. And there was a minor criminal conviction associated with it, I think a

trespassing case. And so one question is, when you, you know, as a Secretary of State, or as a county, the ballots are printed by counties, right? So a county decides, you know, receives a challenge to his ballot status, you know, hey, Charlie Sykes wants to run for president, but we've noticed that he's not 35 yet. He's not eligible to be on the ballot. You know, if a county found that about you and you wanted to prove that you were actually 65 or not even cross the 65, not just the 35 threshold, you know, you would be able to do that civilly as a sort of matter of local administrative law. And, you know, one possibility is that by the time it gets to the Supreme Court, you're going to have a bunch of records in a bunch of counties and state

jurisdictions and courts in which they've held what are effectively mini-trials and said, gee, this man looks like an insurrection. And it won't be entirely without due process. It just won't be with a criminal conviction for the crime of insurrection. Okay, I want to get to two points. I mean, so one of my concerns, especially with the makeup of the Supreme Court right now, you know, the 6-3 conservative majority, is what would the political effect be in the middle of 2024 when you have a headline, Supreme Court finds that Donald Trump did not incite an insurrection. If they throw this case out, and in any of the language of this, they don't just make it a technical case about due process, but they find that, no, you asked us to disqualify him as an insurrectionist.

We are rejecting this case. We find January 6th was not an insurrection. I don't know. That would be bad. Here's my other more practical question. Okay, so in many states, if you are a convicted felon, you lose your civil rights, right? You are not allowed to vote and you are not eligible to run for or serve in public office, correct? This varies a lot by state. Some states have very

easy and quick return of civil rights. Some have, like Florida and Virginia, have really restrictive return of civil rights. Notice that the president lives in Florida. Right. I guess the question is, so the question of ballot access for a presidential race, is it a state issue or ultimately is it always going to be decided at the federal level by the federal courts? Okay, so that is a purely federal issue. And the reason is because it is the qualifications to be president are written into the Constitution. That is, you have to be a native born citizen, you have to be 35 years old. They're very clearly laid out. And there's only one negative qualification, which is from Section 3 of the 14th Amendment, you can't have participated in an insurrection. Yeah, there is that little detail,

or if you've been impeached, too. Oh, sorry, to be precise, you can't have participated in an insurrection against the United States having previously sworn an oath of loyalty to it. So, you know, if you're just some dude, Section 3 is not going to cover you. You have to have sworn loyalty. That's really interesting. Okay, so one thing happened this week that was somewhat unusual. Donald Trump apparently did listen to his lawyers. He was going to have that big press conference where he claimed he was going to lay out all of the non-existent evidence of fraud in Georgia. His lawyers probably told him, we will quit if you do that, if you repeat the same lies that resulted in all of this. So Donald Trump said, all right, I'm not going to have this. We're going to

file this with the court as part of our defense, which also, Ben, strikes me as unlikely because isn't filing false information with a court the kind of thing that got him in trouble in the first place? I'm the layman here. It seems highly unlikely that his lawyers will allow him to file his farrago of lies as formal pleadings in Georgia State Court either. What do you think? Correct. So, you know, unlike a lot of his lawyers, the guys who are representing him in these cases are pros. Mr. Laro is a serious lawyer, and anybody who doubts that should listen to his presentations on the Sunday talk shows. And, you know, Chris Kyes is a very serious guy as well. These are not

trivial people, and they are not going to defend him by filing documents that will get them sanctioned. Good criminal defense lawyers are very good at being good criminal defense lawyers, which is to say, make arguments that are ethical in the world of legal ethics, ethical for them to present and don't contain bald-faced lies, but which are favorable to and advantageous to their client. Whether they can control the rogue elephant is one question, but another question is whether they will advance this material in court, and the answer is no. Well, Ben Wittes, this was a first. This is the first time that we have done a podcast from Iceland and appreciate it very much. Ben Wittes talking to us from the Reykjavik airport in Iceland, where he landed just a few minutes ago

from Norway and yet was able to roll off the plane and do an entire podcast. You're an amazing beast, Mr. Wittes. Well, thank you. And from here to special military operation Reykjavik against the Russian embassy, I will be posting the live stream link for it this afternoon. So, you know, tune in and you can follow all of these special military operations on Facebook. I've been kicked off of Twitter, but Facebook, on Instagram and YouTube, all the places. And they're fun. You know, we annoy Russian diplomats worldwide. You are doing the Lord's work. Ben Riddes, thank you so much for joining us again. And thank you all for listening to this episode of The Trump Trials. I'm Charlie Sykes. We will be back tomorrow and we'll do this all over again.

The Buller Podcast is produced by Katie Cooper and engineered and edited by Jason Brown. you