The Daily Beast Podcast - Trump Mar-A-Lago Judge Should Have Recused Herself Yesterday

Episode Date: June 13, 2023

On this week’s episode of The New Abnormal, MSNBC Legal Analyst Glenn Kirschner joins us to talk about what’s next in Trump’s bombshell indictment. Plus! Princeton University historian Kevin Kruse debunks the theories being spouted by the former president’s supporters. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy, and current cable news conscientious objector. I'm a former libertarian who now sits pretty comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Cannon, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears.

What an excellent show we have today. NBC legal analyst Glenn Kirshner joins us to talk what's next in Trump's indictment. That will be joined by Princeton University historian Kevin Cruz, who will tell us about the historical precedent of Trump's second indictment. But first, let's have some fun. So, okay, Andy, we've now had several days to digest the fact that Donald Trump's bathroom are so fucking tacky. And it is the place where he feels the most classified and secret documents of the United States should be stored next to cheap curtains under a

chandelier on a stage. And the whole of it is just, it's so wild. It feels like we're all being punked, like that this is where we are. And Donald Trump is, because the media can't help themselves is following his every fucking move via drone or helicopter as he makes the move from New Jersey to Florida for his arraignment on 37 federal accounts. I mean, how did you celebrate this week? I guess it's the better question. Well, first of all, I need to defend Donald Trump on something here. And if we are going to start prosecuting every man who keeps reading material in the bathroom, you can forget about this country, okay, if not the world. I mean, look, I remember my dad used to keep photography magazines

and golf magazines in the bathroom, and I don't see any difference between that and what Donald Trump did. So, shame on you for attacking my deceased father like this, Danielle. Did he also keep maps, though? He did not keep maps. Okay. Interesting. No. Yeah, the bathroom pictures are incredible. Just absolutely amazing. And look, full disclosure, I do not watch cable news for the most part. That's why you're so sane. It's, well, I don't know if I'm even remotely sane, but imagine what I'd be like if I did watch cable news. But yeah, they never learn, which is one of the reasons I don't watch it, because they do this every time with this breathless coverage of plane flights and motorcades. We saw it when Trump was arraigned here in New York City. And they did the same thing. And they got mocked for it.

it fairly roundly, but look, I don't know if it rates, it rates, I guess. I just think it's incredibly stupid and it's usually got some ridiculous breaking news, Chiron on the screen. And this is a bit of a diversion. And one of the things I used to do at Fox on Red Eye was fake news alerts. And we stole the Fox News like the graphics and the bell ringing. And then it would come to me and I would say this is a Fox News alert reporting for, well, whatever, this is Andy Levy. And then I would say things like, I think the first one I did was the soda machine in the newsroom is out of Mr. Pib. And the reason I started doing these is because I had on one night when we were there, it was Greta Van Cestern show. And she had this huge

breaking news thing all over the screen. And it was a bunch of cameras focused on a driveway. And I can't even remember whose driveway it was. It might have been OJ's for some reason, I think it was. But it's like, this is not breaking news. You are looking at a bunch of journalists, quote unquote, waiting at someone's driveway. And I was like, if everything is breaking news, then nothing is breaking news. And that's how I feel about this. That was a very long-winded way of getting to that. And it's like they throw this breaking news shit on the screen and they show you a motor

cake. It's not news. It's gross. And it's why I don't watch cable news. And again, they get pilloried for it. And everyone looks at this and goes, this is so stupid. And then they go and do it again. And we're sitting here with literally we have a historic event.

we have a president about to be arraigned for crimes. And they decide that they need to cover motorcades. And I don't get it. Yeah. I mean, I think that it's bullshit. Because here's the thing. I don't remember the last time that I saw them following Joe Biden like this. I don't remember them when Obama was president following him like this.

It's only Donald Trump. It's like, let's be on the fucking tarmac. Let's have the drone up in the sky. Like, we all don't know. Like, are we going to go through TSA precheck? Like, what the fuck? Like, it's not. logical and the small screen picture and picture as you're doing a broadcast to show the highway

is just so ridiculous to me. But I digress. I want to say this. Folks have been saying like to prepare yourself for the arraignment, like prepare yourself that there may be violence and all of these things as people are gathering and as Trump and all of his allies. I mean, the craziest thing that I think that we've seen since the indictment that news came out, at least crazy in my eyes, is Representative Andy Biggs's tweet that he had to then walk back. But in response to 37 federal counts and a 49-page indictment that read so clearly, you did not need to have a law degree to understand what was wrong with all of the things that Donald Trump did. And the fact is, is that if he just returned the documents when they were asked for,

we wouldn't be here. Andy Biggs, though, decided to tweet and say, quote, we have now reached a war phase. I for an eye. On all of the far right wing social media platforms, people are talking about war and being, quote, well armed. I have to read these two, because I'm just like, what's happening? Like, the news instead of following Donald Trump's fucking motorcade should be talking about what Donald Trump is doing and what his followers are willing to do in another phase of the insurrection and inciting violence against Jack Smith and his family, against the Department of Justice, against the FBI, against anyone who goes after this like, I don't know, lifetime criminal. But the person tweeted, quote, I used to laugh when my mom said that she was afraid if she

registered Republican, she may be arrested one day. I'm not laughing anymore. just buying more ammo. Yeah, that same guy said Mago will make Waco look like a tea party. And I don't think he means a tea party protest. Look, we've heard this. I want to be a little cautious about this because we've heard rhetoric like this before. We heard it in New York and the turnout was. And nothing happened.

But I will say that Miami ain't New York City. I mean, New York City is reliably liberal or whatever you want to call it. And there's not a ton of MAGA support here. Florida is a little closer to, shall we say, ground zero, maybe for Trump support. And so, look, I'm assuming security will be incredibly high level. But yeah, all of this shit is just, I mean, there are people who are basically, here's another, I want blood, I want fucking blood. We've seen this as a vice magazine rounded a bunch of things up. Someone posted a picture of Merrick Garland writing, America cannot allow this cowardly thug to destroy our democracy. This is what the Second Amendment was made. for buy a gun or help organize your local militia today. I mean, it is like the rhetoric is already approaching out of control territory and we ain't even at a trial yet. Like, I cannot even imagine what a circus it's going to be when we get there. And of course, it doesn't help that we have elected Republican officials like Jim Jordan and Lindsey Graham. I mean, Lindsay Graham going out there basically saying Trump is even more powerful now and saying you may hate Donald Trump's guts,

but he is not a spy. He's not being accused of being a spy. He's being accused of violating the espionage act, but those are not the same things. And you have Jim Jordan out there and to the point where even, I don't want to say even Danabash, but you have Jim Jordan saying if he wants a store material in a box in a bathroom, he can do that.

No, he can't. It's literally against the law. It's a violation of the Presidential Records Act. And you've got her basically sitting there telling him, And what you're saying makes no sense. I mean, it just, which is true, it doesn't. But they're going to keep saying these things. They're going to keep repeating these lies.

And they know damn well, it's going to rile up the people that we talked about earlier, just the people whose names we don't know. And hopefully we'll continue to not know because they won't have killed 25 people. But they're going to keep riling them up. It's what they want. They want the proud boys and groups like those to show up in Miami. Andy Biggs wants it. Louisiana Senator John Kennedy put up a bizarre.

saw our tweet talking about know your bridges and stuff like this. And it's all like these little code phrases for militia types. And these are sitting officials in the Republican Party. And this is where we are now. I mean, it's just watching Jim Jordan on CNN, which it was difficult to watch. I got to be honest. Because one, roll your fucking sleeves down also. But I mean, that's just an aside. I can't stand Jim Jordan's like. He's hard at work. He's hard at work, Daniel. Is that what that means? Yes. Yes. But. him just speaking over Dana Bash, him just saying that essentially Donald Trump can do whatever he wants, lying about the fact that Hillary Clinton did the same exact thing, which it's just like, no,

actually, the investigation that took a year showed that she was not sharing, selling, nor was she in the incoming classified information that she was receiving. It wasn't even notated in the right way as classified. Donald Trump is in a fucking tacky-ass bathroom with classified materials that say in big red letters, classified, strown all over the place. He's on tape bragging about. I could have declassified this when I was president, but I didn't. So stand a few feet back while I wave this thing that I have in my hand. And when asked, Lindsay Graham, when asked by Stephanopolis, Lindsay Graham says, I didn't listen to the audio. Yes, you fucking did.

And I just wish that these journalists would act in real time. Oh, you didn't hear the audio? Let us play it for you. Exactly. Yeah. Let us play it for you before commercial break. Give you a time to digest it. And on the other side of the break, let's come back and get your thoughts.

Yeah. And look, that's what they do all the time. You know, they've been doing this with Trump since 2016. Senator, what do you think about this that Donald Trump tweeted? Oh, I haven't seen it. And that's their MO is when it's something they don't want to talk about. They pretend they haven't seen it. And you're right.

It's infuriating. And I get why. sometimes the guy is walking away and you can't say, well, this is, let me read you the tweet or whatever. But you're right, Dana Bash is right there. And I'm sure they could have easily had that queued up to play it. But look, I guess we have to give a little bit of credit to Bill Barr, who was U.S. attorney. I'm not giving him credit, but we can talk about him. It's a very little bit of credit. And it's only because he, at least on Fox News of all places, said that the, indictment is quote unquote very, very damning. And he said that, quote, this idea of presenting Trump

as a victim here, a victim of a witch hunt is ridiculous. He was totally wrong that he had the right to have these documents. He said it was facially ridiculous. And he went on at length. Yeah, a couple, first of all, I think Bill Barr is kind of a dissantis guy at this point. And I'm curious because Bill Barr has said all along that we saw this in the January 6th hearings, that he would vote for Trump again, even knowing all this. And I'm assuming that still stands, which is why I say he only gets a very, very, very little bit of credit for this. I mean, I just think we give Bill Barr credit for what, telling us the truth for once, right, as opposed to what he did before the Mueller report came out with his four-page fucking summary that was a bold face fucking lie. I just, the bar is just so literally

and pun intended, is so goddamn low at this point that somebody just acknowledging reality. is worthy of a headline and praise. And it's just like because when you watch in comparison, Lindsay Graham, Jim Jordan, Andy Biggs and the rest of them, in comparison to Bill Barr saying, oh no, actually, this is a really tight fucking case and really clear. And he didn't have the right to have the documents. And just be honest about what you're seeing.

It's like, oh my God, bravo, let's stand up and applause. And I'm like, my God, I'm not saying that. Republicans should not want to defend their leader, the leading candidate for their party and for election in 2024. But how hard is it to say we're going to let the facts play out here? We believe that Donald Trump is innocent, but we're going to let the facts play out. When the fuck did that go out the window? It's not saying that you can't defend the man, but either calling for violence or like saying things that are just factually just bullies. making these false equivalencies and knowing good goddamn well that if you saw Obama's

vacation home and he had a post-it note that said classified on it, you would have called for a motherfucking raid. So give me a break that you're looking at these pictures. And when Dana Bass said to Jim Jordan, look at this. Does this look okay to you? He didn't answer the question. And if I were hurt, I would have come back to it again. I'm asking you, look at the screen. do you think that this seems secure? Yeah, look, it's not that I don't agree with you, but I guess it's sort of like the Mike Pence January 6th thing. It's like on one day of his life, he did the right thing and applause for that.

And that's the same way I guess I feel about Bill Barr. You're right. The bar is, again, pun intended, incredibly low. But it's Bill Barr and the only other Republican, I'm sure there are others I haven't seen, but the only other sort of semi-major Republican figure I've seen say anything like that is Mitt Romney, who basically just said, yeah, Trump did this to himself and refused to jump on the train of all these other people. And you asked when all this shit went out the window as far as just saying, let's wait for the facts to come in or let's just tell the truth. I mean, I'm not saying it first started in 2016, because obviously it goes back way further than that.

But look at Ted Cruz and Marco Rubio were absolutely. bullied were absolutely just belittled by Donald Trump. And what are they now? They are people who will say anything or do anything to defend him. So if you're looking for a time when all this went out the window, I think 2016, it really is. The Trump era is, if not a complete change, because again, the shit, particularly of the Republican Party, goes back decades, a century, put a number on it, whatever. But it really, there was like a fundamental sea change in 2016 where now it's just, they want a king. And they've been fairly clear about this. They want a king. They want a czar. Put whatever name on it you want. They want someone who pretty much has absolute power.

That is what they want. And they have started to make that very, very clear. And there's nothing that makes that clearer than this right now, which is where you have a guy who is out of office and they are saying he should not even be able to be accused of these crimes because anything he did as president is okay. And that is not the way a republic works. It's not the way a democracy works. That's the way a monarchy works. That's the way dictatorship works. And it is just so clearly what they want. Yeah. I mean, even the fact that, again, I think it is Chris Christie. and Asa Hutchinson are the only two so far folks that have come out and use this as an opportunity to bolster their own brands and their own campaigns and say that Donald Trump is basically a criminal

and needs to be investigated and like, we will follow the facts here. But the rest of these people, DeSantis being the number two in this presidential race is backing this motherfucker up. And I'm like, are you actually trying to become president or are you guys all just auditioning for vice? president because I'm confused that when given a huge opportunity like this to take over the lead, they're still like doing the fucking jig for Donald Trump. And I honestly, with this group of Republican candidates, I really don't get it. I'm like, is the goal to win the nomination or is the goal to make sure that Trump still likes you and will put you in his cabinet if he wins? Yeah, it's just the absolute fear that they have of him is,

unreal, of him and his supporters. And I was trying to figure this out. And so DeSantis' best path to the nomination is for Trump to have to drop out. And really the only, I don't know that that's ever going to happen, but the only way it's going to happen is if he's just swamped with indictments. So on that level, DeSantis has to be happy about this, regardless of what he says publicly. But there is that other level where I don't know that Lindsey Graham is wrong when he says that this makes Trump even stronger in a Republican primary. I don't think it does in a general

election, but in a Republican primary, shit like this may make Trump a stronger candidate. So if you look at it that way, then DeSantis is probably shitting himself. And look, none of that excuses what he's saying. I mean, yes, what he should be saying is, yeah, this guy should not be president. But he's never going to say that. He's too much of a, in their terms, he's too much of a beta to Trump's alpha. But I don't know. What do you? you think? Do you think he's happy about this or do you think he's worried that this makes Trump stronger? I mean, I think that with the MAGA base, there is nothing that Donald Trump can do that is going to have them decide not to support him. But you need more than the MAGA base to become president of the

United States. And I think that DeSantis here, I think, sure, privately he's probably like, oh, I hope that he goes up in flames. But I'm also like, you're not showing that in this moment. that you could even be a leader, like that you have the gravitas, the charisma, to fill his shoes. So I'm like, if you're not taking every opportunity to actually take on the quote-unquote Maga King, then what the fuck are you really doing?

I think maybe what we're seeing is that Ron DeSantis has gone woke. I think it's time to start spreading that. Yeah, well done. Folks, I am very excited to welcome back to the new abnormal. My friend, MSNBC Legal Analyst, the host of Justice Matters,

Glenn Kershner, who is a 30-year former federal prosecutor. Glenn, we've been in conversation for years, waiting for the moment that happened late last week after Merrick Garland assigned Jack Smith to be a special counsel over the documents investigation. also overseeing the January 6th insurrection investigation, and Donald Trump's ties to that.

I believe it is what? 38 counts that Donald Trump was indicted on federal charges last week. And I just want to run through them. But before we do, your reactions to this finally happening. And look, this comes after Alvin Bragg, Manhattan DA, charges that were filed with regard to the hush money payments to Stormy Daniels. What do you make of how this has proceeded? Danielle, we've often heard the saying, sometimes justice seems to take forever,

and then it comes all at once. And we are finally at long last at the all at once part. I think it's worth noting that Jack Smith was only appointed on November 18th. And in a little over six months, he has gone scorched earth in the direction of accountability. Talk about without fear or favor. Every Trump loyally and acolyte and slunky that tried to throw up legal hurdles, legal impediments to having to go into the grand jury and testify about the crimes of Donald Trump, Jack Smith defeated every single one. when Mike Pence threw up hurdles, when Evan Corcoran, one of Donald Trump's lawyers who was being used by Donald Trump to facilitate and further his crimes threw up legal hurdles. And Trump

threw up legal hurdles, claiming executive privilege. Jack Smith litigated everyone to its conclusion and he defeated every single privilege. I mean, this is somebody who I think, is up to the task of holding a criminal former president accountable for his crimes. So now that we are in a new era in our American saga, which I'm calling the Trump trials, when I saw the speaking indictment that Jack Smith and his team crafted and unsealed or had the court unsealed, it's all over but the crying. I mean, the evidence is so compelling. Now, that doesn't mean, mean we don't have lots of ups and downs ahead of us because one moment we're up when we see this blockbuster indictment that, among other things, Danielle, charges Donald Trump with espionage,

with violations of our nation's espionage laws, with obstructing justice, with conspiracies, multiple conspiracies, with mishandling classified information, compromising our nation's most closely guarded secrets and the evidence that they have supporting the charges is overwhelming. But then the next thing we learn is that Eileen Cannon, one of Donald Trump's nefarious judges, is certainly the way it feels, is at the moment presiding over the case. And we can talk about whether that will remain true or whether she's going to have to either recuse herself or suffer a DOJ motion. to recuse. But just when we think we're up, then we're back on that justice roller coaster

plummeting down again. So there's going to be a lot of that. And I think we should all brace for it. But I'm confident that at the end of the day, given the strength and the quality of the evidence, and mind you, a lot of the most sharply incriminating evidence has come and will continue to come from Donald Trump's own lawyers. Because the speaking indictment says Trump lawyer number one provided this information. Trump lawyer number two, Trump lawyer number three, Trump employee at Mar-a-Lago, number one, number two. This is not a bunch of angry Democrats who will be testifying against him. It's his own lawyers. It's his own employees. There's also a mention of a Trump family member. So I think this prosecution is going to be so buttoned up that it can even

withstand whatever Judge Aline Cannon tries to throw at it. So let's talk about Aileen Cannon for a minute. So she presided initially over whether or not there was going to be the supposed raid, right, into Mar-Lago. And she did several things that provided favor to Donald Trump. Can you just walk us through what those things were? and why then, I believe it was a three-judge panel, rejected things that she had did. And like what kind of, I guess, the public perception of who she is and why she was placed there in particular.

Yeah, there's so much to unpack with respect to Judge Aline Cannon. And let's break it down to its essence. First of all, of course, she was a member of the Federalist Society before being nominated to the federal bench by Donald Trump. She was confirmed as a federal judge after Donald Trump lost the election while Donald Trump was on his Stop the Steel tour, trying to lie to the American people about their vote being stolen, their election being rigged, their president being unlawfully taken away from them. That's when she was confirmed to the bench, when Donald Trump was in the throes of trying to overturn a presidential election thwarting the will of the American voters. So she ascends to the bench. Fast forward to the FBI obtaining a search warrant for Mara Lago because they convinced a federal judge based on the evidence that Donald Trump was unlawfully concealing classified documents at his home in Florida. There was probable cause for a judge to conclude that that was the case. The FBI executed that search warrant. And even though

Donald Trump and his lawyers had certified that all classified material, had been returned, there were more than a hundred of additional classified documents found at Mar-a-Lago, including in his office, in his desk drawers, which makes a prosecution damn near a lock. So what happened? Once the FBI recovered that evidence of crime, Donald Trump runs to court, somehow finds Aileen Cannon, gets a civil suit assigned to her, and says, I want DOJ to stop. I want the FBI to stop investigating my crimes, at least in as much as they pertain to those classified documents. Now, mind you, there was no law. There was no precedent that allowed Judge Aileen Cannon to put a stop to a DOJ investigation of Donald Trump's crimes, but she did it

anyway. He did him what looks like a dirty favor. The reason I say dirty is because after she ordered DOJ to stop investigating these classified documents, this evidence of crime, the Department of Justice, thank goodness, filed an appeal. The case went up to the 11th Circuit Federal Court of Appeals. And as you say, a unanimous three judge panel, all three judges having been appointed by Republican presidents, I believe, if I'm not mistaken, two of the three were Trump appointees. Yeah, they were. They concluded unanimously that basically what Judge Cannon did was lawless. Let me tell you, as a prosecutor for 30 years, including in the appellate courts, military and civilian, local and federal. Trial judges sometimes get it wrong, Danielle, but they don't

usually get it lawless. She got it lawless. Why do I say lawless? Let me boil down the two appellate court opinions to their essence. They said, this jurisdiction, the 11th Circuit, has a very exacting test for when a court can try to put a stop. to a criminal investigation or prosecution. It's called the Ritchie test. The reason it's called Ritchie is because the litigant in the case that resulted in the opinion, setting out that test was named Ritchie, right? So there are four Ritchie factors.

And they said what Aileen Cannon did didn't satisfy even one single Ritchie factor. And you need all four if you're going to exercise jurisdiction. So they basically said she abused her discretion, more precisely. They said, the United States, if this litigation proceeds, will win the argument that she abused her discretion. So they reversed her. And they used the word interfere. They said, the Ritchie factors this test is designed to prevent judges from interfering in criminal investigations. And that's what she did.

I mean, if that is not an enormous slap in the face to a sitting judge, I don't know what is. And now, even though she showed that bias by getting it lawless, not just wrong, she's now going to be the presiding judge over the same trial, the very case in which she did this enormous favor that had no basis in the law for Donald Trump. You know, the judicial rules of ethics say, if your impartiality can reasonably be questioned, you need to remove yourself, recuse yourself from the case. If she is an honest juror, if she cares about the reliability of the results of this trial, she will sua sponte, fancy word that we use in the law fancy term that means on her own, before she's even asked by anybody, Sue Esponte, she will recuse herself from the case and let a fair, impartial, uninvolved judge. Let that person be a Republican appointee, a Democrat appointee.

It doesn't matter. It shouldn't be alien canon. Now, do any of us think she will? Suisphonte, remove herself from the case. The next question becomes, will the Department of Justice file a motion to recuse her? And I think they have to. I think. think this issue, her unsuitability to serve on this or preside over this criminal trial of the very president who appointed her, I think it's too important an issue not to litigate. I think we have to litigate it. I think all of this has to see the light of day. And then we have to see if she is willing to do what I think is the right thing, the honorable thing and the ethical thing, and remove herself. If not, then it has to go up to this 11th Circuit.

Court of Appeals. So walk us through what we can expect. By the time folks listen to this, Donald Trump will be in Miami on Tuesday. Walk us through what exactly is going to happen on that day. And frankly, at what point in this process would we expect a judge who had ethics to recuse themselves? I would expect a judge who had ethics and understood the implicitly. of presiding over a trial in which she has already been found to have abused her discretion in favor of the defendant. I would expect her to have recused herself yesterday. Of course, she hasn't. So let me walk you through the process real quickly.

Donald Trump will be arrested. They've negotiated a voluntary turn-in, a voluntary surrender. That will be at the Miami FBI field office Tuesday morning. he will be booked, he will be fingerprinted, there will be an arrest photo, which didn't happen in New York for reasons that I still don't quite understand. They let him sort of bypass some of the normal booking procedures. I don't think that's wise. I understand why they did it. They didn't want him to take advantage of, be able to fundraise off an arrest photo. He's already fundraising. He's already fundraising. Yeah. He released a phony arrest photo after that anyway to fundraise. So I think that

highlights the folly of departing from the normal procedures. So he'll be booked, he'll be arrested, he'll be fingerprinted, he'll be mugshot, and then he'll be presented to court. Now, after you've been indicted, your first court appearance is called your arraignment. What happens there is the indictment is read to you unless your attorney's waive formal reading of the charges. Nobody wants to sit there and listen to 49 pages of incriminating information about you. But the arraignment is designed to put a defendant specifically on notice of the charges against which he will have to defend. That's why they read the indictment to the defendant. Then he enters a plea of not guilty. Everybody enters a plea of not guilty at the arraignment. And then the topic will turn to what I think is a consequential issue of should he be released or should he be jailed? I don't think anybody expects him to be jailed. Though as I tweeted recently, there are thousands of people who are suffering in pretrial detention right now.

When I say suffering, let me amend that. Appropriately so if you are a danger to the community or a flight risk, right? And what else would you call a man who had maps that he had laying around in a bathroom of potential U.S. targets that had essentially somebody had put up a New York Times article when we found out that Donald Trump had those documents. And then the very instance of many informants being killed in that same time frame. It was a New York Times article. And not linking this.

I'm just saying, interesting. that it happened during the same time, that this is what the FBI and others had said that Donald Trump is putting folks at risk by having this information. And then that, on top of the fact that there is just a hotbed of Nazism and white supremacist organizations that have taken out their flags that are ready in Florida, Donald Trump is a threat. So if he did not hold the title of president at one time, of course he would be remanded to prison because he's a danger to society. But of course, once again, his privilege and his wealth is going to bypass that. There are thousands of people who are in pretrial detention right now who don't pose one,

one millionth of the threat to the community and to our democracy that Donald Trump poses. And yet they're sitting in pretrial detention. And I don't expect Donald Trump will be. though I can still hope that the prosecutors request pretrial detention, the legal standard, is if they can show by clear and convincing evidence, and for people's benefit, that's somewhere between a preponderance of the evidence, which is 51%, and proof beyond a reasonable doubt, which is a standard to convict the trial, clear and convincing evidence is somewhere between those two. if you can convince a judge by clear and convincing evidence that the defendant is a flight risk or a danger

to the community, the court can order pretrial detention. Do I expect it to happen? No, I hope the prosecutors are seriously considering at least making that request and litigating the issue. Let's air it out. Let's shine the light of day on it and let's have a judge rule that, no, I don't think this man's a danger. The man who tried to violently overthrow the government on January 6th, right? The man who is tweeting out photographs and names of Jack Smith's family, the man that has threatened people while they were testifying right before the January 6th committee and others. Last question for you, Glenn. Republicans have shown no faltering. They are circling the wagons. They are rallying behind him. They are going after our own FBI, Department of Justice,

our own systems of government. How do you see this moving forward? And are you fearful for what violence could come in reaction to the way that they've been tweeting and talking on cable news? So first of all, I fear no violence because you can't decline to do the right thing, like hold an abject criminal former president accountable for fear of how. how the wrong people will react, the people who are inclined to engage in violence if they don't get their way because their political deity is held accountable for his crimes. I fear no violence.

If it comes, it comes. This is too important to make the decision. Maybe we shouldn't hold them accountable because there might be pockets of violence. No, both. You meet the threat when it comes. You prepare for the threat. If you anticipate, it will come. I was in the Army and a half years, I was willing to literally fight for what I believe was right for my country, for our democracy, right? And that, in my mind, is for decency and fairness and equity. But if people want to fight for the wrong thing, we can't stop them. And it's not going to stop us from doing the right thing. I also don't happen to think there will be organized violence. There may be isolated pockets here and there. I view January 6th as different because Donald Trump

had lied to everybody and convinced them that they had a personal stake in the fight because their vote had been stolen. This is not about their vote having been stolen. This is about their decrepit old former president being held accountable for his crimes. I don't think people have personal buy-in to that the way they were lied to and made to have buy-in on January 6th. So I actually am not that concerned about concerted violence. And here's how I absorb the Lindsay Graham. and the Jim Jordan of the world holding fast. Donald Trump didn't do anything wrong. Well, y'all are complicit, very likely complicit.

You have criminal exposure, right? Lindsay Graham was being looked at for what he did in Georgia, helping Donald Trump interfere down there. Jim Jordan, for God's sakes, Lord knows what he did on and around January 6th to assist Donald Trump. So, of course, they have to continue to falsely proclaim Donald Trump's innocence because they know full well. Donald Trump is a snake. And if he flips, because let me tell you,

if Donald Trump feels the heat and makes a business decision that I can do better for myself by accepting some kind of a plea deal and telling the world, telling the law enforcement authorities what I know about Lindsay Graham, what I know about Jim Jordan, what I know about Scott Perry,

what I know about Mark Meadows. That's why these people can't make a break from him. because it mutually assured destruction. So here's how I interpret. Every single defense of Donald Trump by the dirty Republicans, the nefarious Republicans, I hear everyone as an admission of guilt because they can't walk away from him

because he can give up so many of them. That's how I read it. Yeah. Well, Glenn Kushner, we will have to leave it there. We will stay in touch with you as this case unfolds. Jack Smith's award that we would see a speedy trial. We know that speed is not justice's way. So we will be in touch with you as this all unfolds. Appreciate you, Glenn. Thank you. Thanks, Daniel. Joining me now with a look at the historical antecedents for Donald Trump's indictment is the eminent

historian and professor of history at Princeton University, Kevin Cruz. He's the author of books, including One Nation Under God, How Corporate America Invented Christian America, and White Flight, Atlanta, and the making of modern conservatism. He's also the co-editor of this year's Myth America. Historians take on the biggest legends and lies about our past and has a brand spanking news substack called Campaign Trails. Kevin, thanks for coming back on. Hey, a pleasure to be here.

Hey, great timing with launching campaign trails, huh? I planned it this way. It was all trying to time executive Trump's indictment, and we nailed it. Yeah, between that and Pat Robertson dying, really... You know a bomber. Apparently, my newsletter is kind of the Grim Reaper, so watch out. And I wouldn't just note that all those people that have died, the Unabomber, Sylvia Berlusconi, Pat Robertson, on, non of them were subscribers.

So if you want to be safe, subscribe. Yeah, I've seen you make those vailed threats online. They're not bailed, my friend. They're very direct. I'm considering reporting you. Okay. So as you write, Republicans are working over time to tell us that a former president being under federal indictment is, quote, unquote, illegal and unprecedented.

But as you also write, it's not at all illegal. reason it's unprecedented is because of Gerald Ford. Now, not that our listeners, whom I found to be pretty much the smartest people on the planet, need it, but let's remember some history all the way back in 1974, which I will now pretend was before I was born. Watergate happens. Nixon resigns, Ford pardons him. What would have happened had Ford not done that? So we often think of Nixon's resignation and Ford pardon as happening almost instantaneously. But there was a month between those two events. And during that month, a lot of people, including President Ford, including former President Nixon, thought that Nixon would possibly, if not probably, be indicted on federal crimes.

He'd already been roped into the Watergate discussions. He was named secretly by a grand jury in March of 1974 as an unindicted co-conspirator in the Watergate break-in. And there was a sense that now he was out of office, he would surely be indicted along with all the rest of them. Ford's pardon in fact talks about the last. likelihood that Nixon would be indicted for federal crimes. So everyone knew this was going to happen. Everyone knew this was coming. And it was a real possibility. Yeah, as you say, the text of Ford's pardon includes the sentence, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Exactly right. And also, as you know, the Watergate special

prosecutor's office made it clear it believed that not only could Nixon be indicted, but sort of that he needed to be, right? Yeah, the day he resigns. They draw up a memo listing the pros and cons of indicting the president. And the pros are pretty strong. It seemed quite likely, but they were not all in favor of this. They were certainly leaning that way. So basically, to sum it up, indicting a former president appears to be completely legal. And the only reason it's unprecedented is because of a pardon. Well, because of a pardon and also because most presidents haven't committed major crimes. That's, I think, something that has often left out here. Why are we going after Trump? Well, it's probably for all the crimes he did. That's a small reason why he's a little different.

But it's interesting that they've sort of turned this into a, if they're They can do this to Trump, imagine what they can do to you thing, where it should be the other way around. They've always been able to do it to us. Exactly right. And this is the first time they've been able to do it or have had the balls to do it to a former president. That's absolutely correct. Yeah.

The idea is that somehow if we extend the rule of law to include Trump, that's something new. That's always been the case. The idea that we somehow need to carve out an exception for him, that's just really radical and dramatically different right now. Yeah, and it's, I don't want to use the word interesting, because it's more annoying than anything else. I know the New York Times piece today about how there's a real tension here for Republicans because they've been the party of law and order. And it's like, I know you and I have talked about this. Law and Order, they were never the party of law and order. They were the party of using law and order as a code for something very different.

That's right. They were the party of quote, law and order, unquote, trademark. And what that meant was, kind of really rabble-rousing, using imminent threats as they portrayed them, whether it be African-American criminality or migrants at the border, whatever, that that was the real threat to the status quo. It was never about holding people in power accountable, actually not within their own party. They might have chanted in locker up about Hillary Clinton, but the idea that the party itself would be immune to the lawlessness is really ridiculous. I mean, they've spent a lot of time from Iran-Contra up until the present day. There have been a lot of Republican leaders who have themselves been involved in crime and why should Trump be any different?

Yeah. How would you compare the reaction now from Republicans to the reaction back in the early 70s vis-a-vis Richard Nixon? Well, a lot of the reaction was exactly the same. I mean, right up until Nixon's resignation, well, really around the smoking gun tape. So kind of late July, 1974, there were hardcore supporters of Nixon who insisted he had done nothing wrong. This was all a witch hunt.

This is all driven by his political enemies. They were furious. He'd been reelected in a landslide in 1972, and this is the only way they could tear him down. I mean, all these things that we've heard from Trump were certainly true there. There were a lot of diehards who actually said they were more supportive of Nixon after Watergate. I believe it was William Russia, the publisher of National Review, said, I wasn't a Nixon fan until Watergate. Right. And so they saw that he had a hard edge who was going to take it to liberals. the same way we've seen some corners of Trump's support have increased with the indictment, since that he's in there fighting for us. A lot of people felt that way about Nixon.

And we've got to remember, even through his resignation, a full quarter of the country was still in his corner, right? It wasn't that everyone suddenly turned on Nixon. He had a full 25 percent about in most polls to support him. And that was in an era without Fox News and the conservative social media sphere. And so it's really remarkable that he, even had that much. It is interesting that something you said was up until the smoking gun, because it feels like there's sort of a smoking arsenal in Trump's case, and that doesn't seem to make a difference to people. No, I mean, it's a humidor of evidence. It's unbelievable how much is in there. And again, they're all insisting, this isn't a big deal, this isn't a

crime. They're making excuses for Trump. I saw several people say, well, Trump declassified those documents. He is literally on tape saying, I did not declassify these documents. And they're not, they're still arguing it, right? And so it just shows how completely detached from reality they are. And as much as I've spent time on Twitter, on Substack now, pushing back against the kind of the lies and misrepresentations of the right, we've got to all realize they're going to stick to the script of the better end. Of course. And just like the country proceeded with the impeachment and case against Nixon, even with his hardcore supporters in his corner, we've got to do the same with Trump now. Okay. So let's turn to another fun lie we've been hearing from a lot of Republicans

that the Presidential Records Act allows the president to keep their records when they leave office. Now, Mr. Cruz, I'm just a simple country lawyer, but doesn't the PIA say the United States shall reserve and retain complete ownership, possession, and control of presidential records? Yeah, the text is not that hard to read. And what I find hysterical is it all the people who have been arguing for kind of a textual reading of the Constitution, you've got to stick to the strict letter of the law, seem incapable of reading the very obvious, letter of this law. And at the same time, the original intent crowd. Well, the intent behind this law passed in 1978 in the wake of Watergate in the wake of the fight over Nixon's

presidential records is very clear. It was all about making the records public, making them the property of the United States, the property of the American people. The headlines on this. You can go to any newspaper. There's some variation of, as I noted on substack, some variation of the president's papers now belong to you. The president's papers are the public's papers, right? It is explicitly clear. And yet we're seeing people today. One of Alex Jones's lawyers was arguing that this shielded prompt from any investigation, that these were his documents.

And Daniel Dale had a great line. He goes, this is like arguing a red light means you should proceed through the intersection. It's 180 degrees around and just as easy to understand as that red light should be. Well, and there's this Republican lawyer named Mike Davis, who I guess clerked for Justice Gorsuch. And was advised Grassley on Trump's judges. Yeah. And he's going around saying exactly this, that the Presidential Records Act gives the president the right that they're his records. It's exactly wrong.

I mean, it is exactly wrong. And again, the letter of the law is clear. The intent is clear. I find it baffling, but someone could be that bad of a lawyer. So I just had to give a charitable interpretation, which is that he's just outright lying about what he knows is wrong. Yeah. And it's interesting, as you know it at your substack, that the National Archives have decided, we need to put out sort of a fact on what's going on here.

And I love that one of the things they mention is that, no, you don't have six months or five years after leaving office to turn in all your records. You have to do that before you leave office. Yeah. As of noon on January 20th, you're out the door and the records are theirs. That's it. There's no kind of long tail of this process where you get to casually sort through boxes on the shitter like Trump did.

I don't understand it at all. I like what you said about Mike Davis because it's always the case where you look at these things and you're like, are you stupid or are you lying? And often it's hard to tell, but you have to think a guy like that is fairly intelligent. So I don't know. He's at least literate, right? I mean, he's using this app and able to type out words in English, presumably, so he should be able to read it. Like, you don't even need a law degree to read this. It's very simple. And whatever you think about him, Neil Gorsuch is a super smart guy. I mean, look, full disclosure, I was friends with him in college. He's a super smart guy. He's not. He's

not going to hire some absolute moron to clerk for him. Right. I'm baffled. And so again, the only charitable conclusion I can draw is that he's lying. Something you said earlier, it doesn't matter how often you call these people out on Twitter, on substack, on cable news, in op-eds. They are not going to change. And I'm assuming you think that this is going to continue straight up and through a trial. Oh, absolutely. And you're going to be dumbfounded at how will the ignorance is at how deep the refusal to accept basic facts are, how any charge that might seem to anyone outside is obviously warranted based on the letter of the law and the evidence before them is somehow a grand conspiracy to drag the deer leader down. It is going to be

off the walls insane. And the level of kind of lick spittery we saw from Nixon's diehards at the very end is going to be nothing compared to this. Yeah, though it's going to be on utter circus. Let's talk about some more recent history, and that would be one Hillary Rodham Clinton, because her name is getting invoked constantly right now. What is the difference between what she did and what Trump did? Well, she had a server at her home, right, and was doing official business through it, but was not maintaining and retaining classified documents there, was not taking them out of the White House, the State Department, and hoarding them at home, but was instead engaged in business. A problem? Yeah. Nothing compared to this. And Trump's own DOJ looked into it and dismissed this.

And I think the real point here is to kind of maybe a group are in with what Biden did and what Pence did too, which is when they were told they had made an error, they immediately moved to correct it, right? And if you had told Hillary Clinton, somebody made this point on Twitter, if you told Hillary Clinton, if you can go back in time and undo that server at home, you could be president. She knew it in a heartbeat. Trump, however, had many options and many chances to take an off ramp here in which they bent over backwards and say, no, really has this is all the material. And he kept digging in and getting deeper in his kind of defense of his boxes, as he called

him. And so the level of commitment here is really insane. Again, I think Trump had a chance as a last year to turn over all this stuff and stop this process. Instead, he just kept doubling down. That's the really remarkable thing about this, is that. Clinton's actions happened while she was on the job. All of Trump's real problems, at least in this case, have come after he left the presidency.

Right, because look, having those documents in an unsecure location would have been an issue while he was president, but not in the way that having them at all is an issue for his post-presidency. And that, I want to go back to what you said about talking about President Biden and Mike Pence, because both of them, as we know, had documents, I believe that were called. classified that were in locations they should not have been, to put it charitably. But as you said, they were notified of this or they discovered this and they immediately took steps to rectify the situation. Whereas I just want to amplify the point you were making. Had Trump come across these boxes and said, oh shit, I've got a bunch of documents here, classified and unclassified, either way,

that aren't supposed to be here. They're supposed to be at the National Archives. And if he would have had someone pick up the phone and call the National Archives and say, hey, I just discovered I got a bunch of boxes here, something must have gotten screwed up when I left. I need to get these to you ASAP. He would never have been prosecuted for this, right? No, no. And he had multiple chances to do that. And again, that's what happened with both Biden and Pence. I don't think either of them knew what was in those boxes. And once they learned about it, once it's made a way up the food chain from their people to them, they immediately contacted the FBI or NARA. I can't remember which one they did. But they contacted some authorities and said, look, let's get this sorted out. And that's all you can

expect from these politicians. Whereas with Trump, we know, A, he knew he had them. He was showing them off to Kid Rock, to people in his pack, to random people. God knows who else. He was bragging about them, talking about them on tape to reporters who were writing a book. And so he knew about this. He knew he wasn't supposed to have them or talk about them. And yet he was. And he was repeatedly asked to return them. And he refused. He lied about it. So we've seen all these things over and over again in his case that are remarkably different. from what Biden and Pence said. The idea that there's a one-to-one comparison there is insane. The other one we're hearing about is the Clinton sock drawer, where he had, what, notes from his

conversations with Taylor Branch about a book they were doing. Those are actually personal records. They're an extension in the PRA for diaries and journals and things like that, but a president keeps. That's what the president keeps. He doesn't keep CIA documents on Iran or a military strike potential for, I don't know, wherever. Those are the kind of things you're allowed to keep. Your notes about a conversation with a journalist? Yes. Notes about CIA intel on the Middle East? No. Yeah, it's pretty cut and dry. But I have to say, Kevin, that the way you described Trump's actions, that showing them off to reporters, showing them off to washed up rock stars, bragging about having them, refusing to return them, none of that sounds like the Donald Trump, I know.

He's certainly not a guy who likes to impress people with shiny objects. No. No, not at all. And not a person who is at all himself impressed by shiny objects. Not at all. Kevin, thank you so much for joining us. Everybody rush out, obviously, and subscribe to Kevin Substack campaign trails if you want to live. And I've said this before. I've had you on to talk about it, but the book you co-edited and wrote a great chapter on the Southern Strategy in Myth America is an absolutely fantastic book and everybody should read it. Kevin, thanks so much. You're very kind. Great being here. Take care, man. You too. Andy Levy.

Daniel Moody. Andy was starting the week off strong. So who is your fuck that guy to kick things off? My fuck that guy is an entire state's police department, if you can believe that. And that state would be West Virginia. And I was not aware of this story at all until some people were posting it on Twitter over the weekend, basically saying, why isn't this story getting more coverage? And I read it. I was like, yeah, why isn't this story getting more coverage? So West Virginia has the police academy, the state police academy, and they have a thing called the Junior Trooper Academy, which is filled with minors. And because it's West Virginia, I want to not coal miners. I'm talking about people under the age of 18. So it came out that the police had put a bunch of hidden cameras in the women's locker room in the state police academy and taped women in obviously various states of undress, including people at this junior trooper program. Again, those would be minors with an O. And we are now up at, there are 10 minors, and 42 women, including 10 minors, are filing lawsuits against the West Virginia police. Their attorney says that our ongoing investigation shows rampant sexual misconduct, including Hididon videotaping, toward female cadets and others while they attended the academy.

And so, again, this went beyond the videotaping. And although, that is obviously unbelievably egregious, but there are a whole host of other charges in this about sexual misconduct towards female students at the academy. And back in March, the state police superintendent resigned because of this. And this happened months ago. This happened in the lawsuit was originally filed, I believe, in April. And it was just updated because more women came forward. And it's absolutely unbelievable that this was, because this is one of the things that they can say this was a few bad apples, but apparently these tapes were widely shared throughout the state police department. And I believe there are accusations that police then tried to

destroy evidence by stepping on USB drives and stuff like that. And it is, again, this is the, so it is the entire West Virginia state police that is having lawsuits filed against it. And it's absolutely incredible. And this, again, this happened two months ago. And outside of West Virginia coverage, the main place I'm looking at is WTRF down in. in West Virginia. It hasn't really gotten any national coverage and it really feels like it should because it's absolutely disgusting. It's absolutely abhorrent. And it does seem to go well beyond the usual, quote unquote, few bad apples that we always hear about. So that's my fuck that guy for today. It's the entire West Virginia state police. I mean, I wish that cable news or anyone had time.

Maybe they should put those women that are filing the cases on the tarmac for Donald. Trump's plane and then maybe they could get into the shot because they're so fucking busy. But that is disgusting and I hope that we hear about arrests because I don't know, man, but every time I say this, it is not just a few bad apples in our police force. It is a poisonous fucking orchard across the country. Yep. So Danielle, who or what or how many people or you're a fuck that guy is your fuck that guy for today?

Well, I have a thousand of them, literally. So the North Carolina Republican Party held its annual convention. And get this, they decided to vote, a thousand delegates voted to reprimand U.S. Senator Tom Tillis. Now, you may say, oh, what did Tom get himself caught up in? Does he have boxes too? Did he pay a porn star? Did he do something criminal? No, no, no, because that would be worthy of applause.

So according to The Guardian, more than 1,000 delegates at the North Carolina Republican Party's annual convention boated behind closed doors over the weekend to censure Tillis because of his support of gun control and same-sex men. marriage. This is what one Republican delegate said, and as they told this to the Associated Press, quote, we need people who are unwavering in their support for conservative ideals. And this is from Republican delegate Jim Foster. And he said that Tillis broke with the party on his stances with LGBTQ plus issues, gun control, and immigration policy. And that, quote, his recent actions don't reflect the party's shift to the right. In fact, they're moving in the exact wrong direction.

These are who these people are. It is wild to me. So if you are not transphobic, if you are not like putting human beings on buses and planes and lying to them and sending them to different states because you're trying to get rid of actual people, if you are not effectively for AR-15's just being handed out like slurpees and the mass killing of children, then that is what is deserving of censure for the North Carolina Republican Party. Like, how far, how low, how just unbelievable the Republican Party who used to say law and order, who used to be about fiscal conservative, like, they just don't give a fuck about people, about anything. And if you're not following the Maga cult, that's what's going to get you censured.

Nothing else but that. And it is just so for that reason, the 1,000 delegates that voted to censured Tom Tillis for not following their cult-like behavior, all of you can get a fuck that guy. The interesting thing about Tillis, I was just looking at that Guardian article. So one of the things they're mad about is that he voted for. federal legislation that would protect same-sex and interracial couples because we still need to protect same-sex and interracial couples in the year of our Lord 2023 in America. But as the piece notes that back in 2012, so only 11 years ago, Tillis played a huge role in helping get a same-sex marriage

ban passed in North Carolina. He was the speaker of the state's House of Representatives at the time. So it's interesting to note that he at least, and again, I'm not here to be praise on Tom Tillis, but at least on one issue, he has evolved in the past decade. But not so much the rest of his party, which still wants to fight the same unbelievable fights that should have been relegated to the dustbin of history a long time ago. So fuck all of them. Mm-hmm. Hope you enjoy checking out this episode of The New Abnormal.

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