The Dispatch Podcast - The Trials of Donald Trump, Explained | Roundtable x Collision

Episode Date: March 1, 2024

Donald Trump's trials represent an unprecedented clash of American politics and law. To make sense of the madness, The Dispatch launched The Collision newsletter, written by Sarah Isgur and Mike Warren. With the ex-president's multiple cases crawling through the courts, Sarah and Mike (and a spice-addled Jonah) compare the legal arguments of the different trials, break down the possible timelines, and consider the political ramifications of this mess we're in. The Agenda: —SCOTUS hearing Trump’s immunity case —The lawfare argument —Majorities can be wrong —Alvin Bragg’s hush money case —Different rules for elites —Dead to rights on obstruction —Georgia on their mind —Biden impeachment update Show Notes: —The Collision newsletter —Liam Neeson does improv Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm Sarah Isger, and this is a collision takeover. Mike Warren and I are taking this podcast, and we're doing our own thing. We just need someone to interview us. Who, who could come and interview the team? of us. Well, I for one welcome my new collision overlords. And I have agreed to do this, even though I do not endorse this podcast version of settler colonialism. And the reason we thought we should do this is you may have noticed a lot of legal stuff, a lot of legal stuff that has

to do with political stuff has come on the come down the pike of late and we thought we should try and do a kind of explainer where Sarah doesn't have to be like the moderator person and ask the question type things so instead I'm going to be a very light moderator um I mean that figuratively um and um we'll just go down the horn I think we got to start with the breaking news from earlier today, which was the Supreme Court's decision to hear the case about immunity,

but hear it on a time frame that has caused several MSNBC host to spontaneously combust. So why don't we start with a law-type thing and go to Sarah. What is your interpretation

of these events? So first of all, you said it happened earlier today and just in no world, neither the world of the listener who's going to be hearing this on Friday nor the world of the Supreme Court that released that order

on Wednesday evening was it earlier today. Sure enough. Those are all fine technical objections. I mean, day, look, it's leap day. So, like, technically, this day is kind of invisible to me. It doesn't even exist.

Aren't you glad you signed up for this, Jonah, by the way? I really am. Right out the game. You know, I had this nice day. I went to go see Dune and then I come back and Mouadib, I got to deal with this stuff. All right. So what do we make of the Supreme Court's decision that was made at some point in the last 48 hours? Okay. So what the Supreme Court said was that they are going to decide whether a president and to what

extent a president might have any immunity from criminal prosecution for acts that they, you know, official acts that they did while president. And I think there's a few things to point out here. one, the Supreme Court decides questions, not cases. And I think nobody knows that. And I think it really confuses people. So they think the Supreme Court is deciding whether Donald Trump has immunity. No, actually.

In fact, the Supreme Court's wording of the question presented is really fascinating for that reason because, and again, I'll read their exact wording. This is the question that they plan to decide. Whether and if so, to what extent does a former president, enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. So this leaves open a few possibilities, including the fact, and I think actually the most likely outcome, that they are taking this case because the district court and the appellate court, I criticize their opinions because they basically said, no immunity whatsoever, no matter what, this is silly.

they sort of gnawed this entire idea. When in fact, you know, the law to this point doesn't really lend itself to that. So presidents enjoy full immunity from civil liability.

So you can't sue a president for an official act while they were in office. And in other parts of our immunity jurisprudence, there's something like qualified immunity, which I'm sure you've heard tons about. And so I think the Supreme Court has taken this to sort of give a,

look, you're not at a former presidents doesn't have absolute immunity but here's the type of act that they'd be immune from criminal prosecution and here's the type of official act that they might not be immune from criminal prosecution and this is why it becomes really important that they answer questions not cases because if that's the decision that they make here this case gets sent back to determine of the four things that trump was charged with where those things may fall into these two different buckets that they're going to create. We should clarify, by the way, that this all stems from a motion in the D.C. election

interference case. That's where this presidential immunity issue has been raised, although it has implications for some of the other criminal cases. But just for listeners who haven't been following the origin of this, I think it's important to note sort of the chain of where this question arose from. Sorry, Sarah, continue. I think that's pretty reasonable. But anyway, yeah, so that answers the first part about, like, why they took this case, what I think they'll decide it, and why it won't actually probably decide, decide this case.

But then there's another part that people are complaining about, and I want to rant about the ranters, which is people are upset that the Supreme Court has somehow ruined the chance of this going to try. before the election. There's so many things wrong with that rant. I want to just sort of take them piece by piece. One, it's definitely not the Supreme Court's fault. They've been the fastest deciders of anyone involved in this.

The Department of Justice had from January 7th, 2021, they had two and a half years before they indicted this case. That's where the actual delay came from. So blame DOJ if you want to. judge chuckin took quite a while ruling on some of these motions in the first place she had this case for what four or five months before it went to the dc circuit they kept it for two months and now the supreme court's going to have it for um you know about three months all told so there were delays all along the way the supreme court just happens to be the last delay and i don't

think they should get the most blame from it also if i'm right about how the supreme court may well decide this, then it didn't matter whether they did it six months ago. It was still not going to happen before the election. And another point worth making is like the OJ Simpson trial took 11 months. Everyone keeps assuming that this trial was somehow going to happen in two weeks and bada bing, bada boom, we've got a verdict. I have no idea why anyone thought that. This trial. Because they wanted it to be true, Sarah. Right. So this trial could last a really long time and it might not have wrapped before the election anyway. And the last point I'll make on the timing that I find frustrating, it's coming from the same people who said Donald Trump shouldn't be above the law.

He should be treated like any other criminal defendant. But when it comes to the timing of his criminal prosecution, they want him treated special and more quickly. And just to be clear, the Supreme Court is treating him special and more quickly because a normal criminal defendant who had this interlocutory appeal, meaning appealing before the trial, would have had their case, if the Supreme Court took it, docketed for November, and a decision wouldn't have come out until March, April, May, June. So by them basically saying they're going to decide this by May, they are treating him worse than a normal criminal defendant. And so I find the whole thing really frustrating. Like either we're going to treat Donald Trump

like a criminal defendant or we're going to treat him like a former president, but you don't get to pick which one to treat him as based on when it suits your political ends. Can I actually counter that just a little bit? I'd love you to. Because I think that

I want to be a moderator. Mike, can you counter that a little bit for me? Thanks for joining us, Jonah. Thank you, Jonah, for that opportunity. I do think that Sarah is getting into a tension that we certainly run into as we write the collision, the weekly newsletter that you can sign up for at despatch.com. And that is what is Donald Trump?

Is he a run-of-the-mill criminal defendant or is he a former president who is currently running for president? And when it comes to at least federal cases and federal indictments, is he somebody who, if elected, would immediately end these prosecutions, or at least pause them, I should say, while he is present. Because as we know, a president cannot be prosecuted

by his own Department of Justice. And I think that the tension between those two polls of trying to treat him like a normal criminal defendant, but also recognizing that there is a ticking clock on this is sort of the source of some of these, maybe the anti-Trump frustration with the way these have gone. But it does seem that whether it's in this case or in the, which we can talk about this one in a bit as well, or in the classified documents case, sometimes the way that these, the way that judges have decided certain pretrial motions have gone one way and they've gone the other. And that's kind of, like, the way that the actual process has happened doesn't always fit along these nice lines.

Because I think the courts and prosecutors, defense stories, they're all dealing with this tension. And I'm always looking for, in the way we analyze this, a little humility about the fact that this is a really unusual situation to have. have a criminal defendant, who's also a former president, who's also currently running for president. And I just think we should, I think we should acknowledge that, Sarah. No, no, I'm just kidding. You're 100% right. Like, yes, I just want some consistency in how people deal with it when they're going to complain. Yeah, so I'm with you on that point in principle, Sarah. But to join the pile on from Mike Warren.

part of the problem I put it to you is that the courts shouldn't be dealing with this crap at all right the reason why we're in this situation is we've got a guy running for president

who would rather put the country through all sorts of hell for his own personal purposes and the system was never designed for this level of bad faith. It was never designed, I mean, yeah, the system was designed for the bad faith of murderers and

rapists, right, and Ponzi scheme guys, but the assumption was that those guys wouldn't be like running for president to the United States, and that if they did run for president and won the first time, but then tried to steal election to stay in power the second time,

the American people and the system itself would just sort of say, as you, to use this technical term from advisory opinions, gnaw dog right and so we're asking courts to deal with something they weren't designed to deal with that there is no precedent for that there is no rule book for and while i agree with you treating trump like a normal defendant is probably the you know the best course of action it was your your your buddy at rosenstein at doj said you know you have the rules for the hard

situations not the easy situations i generally agree with that i'm a chestertonian kind of guy But at the same time, it's at least pointing out if we're going to talk about the double standards of the critics of all this. We should also talk about the double standard of the frigging guy putting the country through all of this who literally says, you know, his defenders said in two impeachments,

the president isn't above the law, but he's not a below the law either. And now his official position, which he repeats with almost, you know, manic repetition, is presidents need total and complete immunity for all the crime. crimes. And so like my sympathy for the people who say, I agree with you. I mean, you're fine on this. But there are a lot of people who are saying this is outrageous that this is this political

situation. Look how they're treating Donald Trump. And I haven't heard them criticize Donald Trump for taking the standard that the president can do anything he want with total impunity. So there are a lot of hypocrites out there. A hundred percent accurate. And to be clear, I think there is no chance. Zero chance that the Supreme Court says that presidents have total and absolute immunity from criminal prosecution. But I do think they had to take this case because the D.C. Circuit, frankly, said the exact opposite, which is actually equally as absurd. That the second a president leaves office, you can arrest him for any policy disagreement as long as you can find a broad enough state or federal law to prosecute him. So that's why I think

they're going to actually say, like, nope, there's this sort of core part of the presidency that you can't, you know, charge someone for, and then there's all these outer parts that you can. And now we're going to have to determine which one Trump's actions fall into, and we have to leave that to the lower courts potentially. But Jonah, so a few answers to your question. One, that question that you're raising, in my mind, should be up to voters, as in we don't speed up the criminal justice process and skip some steps because we don't trust voters not to elect the guy. It's a totally separate process in my mind. There's the criminal justice process. And by the way, I'm being a little facetious here. Like, I'm not saying we are skipping

steps or that anyone wants to skip steps. But we don't skip steps in the criminal justice process because of the political process. And at the same time, the political process probably should be separate from the criminal justice process and not have to take that into account either. And so what a lot of what I guess here is, I don't trust voters, therefore we need to do this other thing in this different process to make sure that that's not left up to voters. And that's where I guess I reject that. And Mike, from our collision last week, I was trying to explain to our readers why Republican voters, or I should say Trump voters,

therefore reject what's happening in the criminal justice process that it should affect their political choice because they see this as a form of lawfare. And I was trying to explain what that term means, how they would explain it to you, what their impression of a lot of these cases are. And the one case that looks like it might go to trial next month slash the month that you are hearing this in on Friday,

is the New York case with Alvin Bragg, which legally is the weakest case and really does kind of look like lawfare in a lot of ways. And Mike, I was curious if you wanted to step back a little on the lawfare side of this and give your take

since everyone I think kind of knows my take. But if they don't know your take, they should absolutely read last week's collision on this. Look, I think it is... My take is actually easily summarized in a man for all seasons, right? It's the idea that you cut down

all the trees to get to the devil. That's lawfare. Correct. And I think that that is, I tend to agree with your analysis of how Trump voters sort of digest the way these cases are going. They look at this as everything as a partisan attack on Trump. And they are reinforced in that view by Trump himself. And, and and Trump allies and acolytes. And something that we've talked about on the dispatch podcast. And I know Jonah has had frustrations about and has given voice to those is the way that Donald Trump's primary opponents, his political opponents, sort of made the case for Trump that DOJ is corrupt, that DOJ is going after Donald Trump, because, they're afraid of him being present.

I mean, I do think that there is a bit of a breakdown in the logic when it comes to this because everything we've seen is that if lawfare is designed by the puppet masters at the DOJ and in places like Manhattan and Fulton County, Georgia, to sink Donald Trump's political chances, if that's the contention, I think, of a lot of Trump supporters, it's not working very well because Donald Trump is about to secure the Republican nomination, and he is also leading Joe Biden in all the swing state polls at this point. And I think there is a little bit of a breakdown, as I said, in the logic where law fair is designed to hurt Donald Trump, and yet people who complain about it often assert that the act of the lawfare is only strengthening Trump.

And I think that, I think that's, there's sort of a problem. Okay, is going after Trump with these legal problems he has, which setting aside whether or not he's, there's evidence of his guilt of this, is it hurting him or is it helping him? And I think that's where the logic of the lawfare argument falls apart. So I want to move on to some of the other legal woes. And we don't, I'm not trying to spark a grand philosophical debate here. I just want to be on record with one thing. I'm not so much accusing you of this, Sarah.

I'm just, I'm accusing you of using this language, which I hear all over the place. There's nothing wrong with not trusting voters. voters screw stuff up all the time. Voters vote for the wrong people all the time. That's not an argument where I agree with you entirely is that just because you don't trust voters doesn't mean you should ask the courts to do the stuff that the voters won't do.

Yes, I mean taking things away from voters is the mistake. Well, yeah, but I'm all in favor of taking things away from voters that voters shouldn't be deciding, right? That's why we have a Supreme Court is to decide the things that voters shouldn't be decided. like, you know, how to enforce the Bill of Rights. Oh, I would phrase that slightly differently. We take things away from majorities, not necessarily voters.

We don't let the majority decide things. Fair enough. Fair enough. But my only point is, is like, there's a lot of language out there that makes it sound like whichever way, 50.1% of the people vote, all of a sudden, if they say Flan is good, I got to like Flan now. And that's just not true. It's like majorities can be wrong, and that's why we have a bill of rights.

This is how we get British suburb. Merciful's name Bodie McBoatface is just by taking the voters. Oh, come on. Boaty McBoatface was awesome. It was also the British, so I'm actually taking back that it was awesome because those royalist assholes don't deserve their good boat name. Can you tell it's later recording than you go? We're punching.

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is the case that almost, not everybody, but almost everybody thinks is the least worthy and where a large number of people think is not worthy of bringing in the first place that also promises, doesn't promise any person, possibility of putting Donald Trump in a suit that matches his skin tone behind bars, right? Which is the Stormy Daniels case. How do we think that's actually going to play out legally and or politically? Okay, so we've got a legal problem here, which is this is going to be a New York state criminal case,

and I am not a New York state lawyer. So to the extent there are specific state rules and laws that might affect the timing of this or how it goes, I'm not going to know them. And I just want to be really upfront about that. But I do understand the case. And just to summarize some of the problems, remember, basically what they're charging Trump with is a misdemeanor, but the statute of limitations on the misdemeanor ran out. So they needed to then have the same thing become a felony.

And the way that you get it to become a felony is by attaching another crime to it. And the only other crime they could attach to it was a federal crime that the Department Department of Justice decided not to prosecute Trump for. So there's some problems here. It's not clear to me, and it's never been clear to me, that a state prosecutor can prove a federal crime to a state jury that has never been charged or convicted to bootstrap the statute of limitations on a state crime.

And separately, the federal crime and the reason the Department of justice didn't try it, is because it's not a federal crime. It cannot be the case that paying hush money is a campaign expense when in fact, if you used campaign money for that, you would get charged with a federal crime of misusing campaign resources. So that's a like real damned if you do, damned if you don't federal crime there. If either way, you're committing a federal crime, if you're running for office and pay hush money. Because if you do disclose it, do you do use campaign dollars, it was a misuse of campaign dollars. And if you don't, then Alvin Bragg can get you on this weird state crime. And of course, Alvin Bragg's own office declined to prosecute

this as well. And this is where the law fair point comes in, right? Like the Department of Justice waited until right before the election basically to charge Donald Trump and then complains that the thing isn't going fast enough. Alvin Bragg gets into office and then charges Donald Trump also very close to an election year. And this is even worse, I think the argument's better, rather, because the actual allegations are from 2016. And he waited until 2023 to charge him, hence why the statute of limitations had run.

So all that being said, a judge has already declined to throw out the case. The trial is set for March 25th. I can't imagine a case that is better suited to help Donald Trump politically than this one, as compared to all of the other criminal trials that are pending, which all have, I think, real liability for Donald Trump, both, like, legally and morally, if that makes sense.

Like, the thing he did is actually a real thing versus this one, which might not even be against the law. I have, Jonah, if you do yield the floor here. I bequeath the floor. Oh, thank you. I don't even know if I entirely agree with what I'm about to say. Ooh, I love that. But it's something that I've been pondering, which is because I entirely agree and sort of and sort of seed the floor as it were to Sarah's analysis, legal analysis, of this case.

And the way in which Alvin Bragg basically campaigned on the idea that he was going to get Donald Trump, it's it's got bad written all over it um at the same time something makes me wonder if the kind of dirty details the sorted details of a hush money case where Donald Trump is alleged to have paid off this uh porn star who he had uh who he had had sex with I mean it's all like kind of it's the kind of seamy stuff of, you know, New York tabloids that Donald Trump, you know, came from, you know, he was, you know, he was born in the darkness kind of thing. This is his milieu, but I do think it's the part of Donald Trump that, or it is a part of Donald Trump that also repulses a lot of people. And I wonder if hearing about it, hearing stories about it, the kind of coverage that this trial is going to, going to get.

Will it be televised? Quick question? I don't know the answer to that question. So I know that in there are other. So for instance, if we talk about the Fulton County case, those proceedings are often live streamed or televised. So it may be the case in New York, but we should put a pin in that and find that out. But even just the coverage of it, part of me wonders from a political analytical point,

whether this running first, it's like the weakest legal case, but perhaps it has a negative effect politically on Donald Trump, on Donald Trump, by reminding all those kind of soft Trump voters, people who maybe didn't even vote for him in 2020, but were kind of going back because Biden's old and was Trump really that bad? Does it have some effect with them to remind them, oh, wait, this guy does kind of, he's kind of a skeevy, gross guy.

I don't know. I mean, we're just kind of to see what the coverage and what kind of details come out of it. And again, as I said, I'm not even convinced of my own position here.

So, Sarah, I don't want to argue with it. Yeah, no, I'm more sympathetic to it than I thought I would be insofar as, particularly if it's televised. And particularly if, and Sarah, I just don't know the answer to this either, does Trump have to attend his trial? No.

Okay. Will he be able to do? resist it. No. Yeah. If it's on TV, right? And Trump is there. And you have Stormy Daniels talking about his tidy whitties and endowments and all

of these kinds of things. And he insists because it's embarrassing to lie and say none of it. And none of it actually happened. I mean, you could see how legally the consequences might be very, very low. But the circus aspect of it could change. the narrative from him being a victim because I think we all agree this probably shouldn't have been brought, certainly shouldn't

go first, being a victim of lawfare and sort of politicized prosecutions because I mean the guy literally campaigned on doing this to like ick Sarah? You want to take the pro Ick position?

Jonah, you're letting people into our text chain. so a few things one there actually aren't many disputed facts in this case so this trial would be super short really i mean there's not a lot of witnesses you need to call they agree they paid the money it's just a question of whether it broke the law really so very few things that the jury really needs to decide here um and i guess uh i think the reason that it helps him is because it's largely baked in already and because it's going first, you're going to have the same effect

that the indictments had. This was also the first indictment. And I think it really immunized Trump against the indictments to come because it was so easy to dismiss this one. There's so many things wrong with it that if a jury were to convict him of this, I think a lot of voters would be like,

yeah, of course they did. this is what the DA ran on. These are the same voters who elected that DA. This was from 2016. The former chairman of the FEC says that it's not a crime, what he did, but then a state prosecutor gets to prosecute him for it. And so it hurts all the cases that come after it because it allows them to then ignore that,

which works a lot to Trump's benefit. That's what we saw with the indictment. That was my prediction of what we'd see with the indictment. Maybe I'm wrong about the trial. I leave open the possibility that Mike has a point here. I just don't know that Stormy Daniels on the stand, you know, talking about stuff. It's going to be salacious, but is it actually going to hurt him politically or help him? I could see it going the other way.

I'm just excited that you left open the possibility that I might have had a point. Maybe. That warms my heart. Maybe. Exactly. Maybe. Who knows? We should have a sound effect of like a door creaking slightly open.

which is as much as Sarah will allow for you to have a point. It's my three-and-a-half-year-old down the hall. I can record it right now. He's left his room three times since I put him to bed when we started this. All I know is that I sorely miss. Do you remember there was this moment about 10 years ago where everyone was in love with Taiwanese news animation of stuff? Like, that's what the Stormy Daniels trial needs every night.

Is that kind of summation about the allegations. and whatnot. All right. So classified documents. Yes. Sarah has been at the forefront of saying, how dare you suggest that the judge in Florida is somehow in the tank for Donald Trump.

I have not been. That's just false. It is her most anti-MSNBC position. It is her most Jonathan Turley-like. position. It's just made up. It's wildly exaggerated. I'll give you that.

I don't know. Not taking a position is taking a position. I said I don't have the evidence to say that she is corrupt and in the tank for Trump. That's literally the extent of what I said. How dare you. Read between the lines, people. Read between the lines. All right.

So I've been clear about all this. I think he's guilty of all of it, right? Not necessarily, not just a classified document. I think he's guilty of the Stormy Daniels thing. I think he's guilty of the January 6th thing. I mean, the way the actual charges are phrased, I grant you is an important distinction, and that maybe some of this stuff is bootstrapping,

that's all fine. But like the things, when you talk to a normal American and you say he did these things, all of the things that people like me say, I think he actually did and is just flat out guilty. But on this technical law stuff, it's pretty, it would seem pretty clear at the time that the thing he's most obviously provably guilty in a court of law, according to what the actual words in the order that they

appear on the law thingy, this is the one he's really guilty of, and it's the thing that should have gone first, it should have been the silver bullet kind of thing, and it just doesn't feel like that's going to happen at all. Why are you so in favor of that, Sarah? I want to rephrase what you said because I think what you mean is you believe he did the act he is accused of. But I don't think you mean that he committed the crime

because, for instance, I think you believe he paid hush money. But paying hush money isn't a crime. Yeah, fair, fair. So I just want to make that distinction for you. I mean, the brag thing, I don't think should have been brought at all. But I'm talking about, but like, yeah.

So on the classified document thing, I've always said this is the strongest legal case against Donald Trump. It still is. The problem for Jack Smith is that the even stronger, strongest case against Donald Trump is if he had limited the indictment to just the obstruction charges instead of the willful retention of national security information. The problem with doing that is then you were going to face a lot of people who said,

he didn't even commit a crime and you're charging with obstruction, but not an underlying crime. Like, this is ridiculous. And so Jack Smith, I think wisely, actually, is like, no, no, he can be. the crime too. The problem with that is once he charged him with the will for retention of national security information, this was never going to trial within a year because of all of the security issues around this. So basically the intelligence community gets to review all of these documents to decide whether any of them can be declassified. Trump's lawyers will need security clearances. And then what they're going to say is, ah, thank you for exhibit 27 of this

classified document, but you know what? It references this other classified document, and I'd like that one too. And then we start over. Then we go back to the intelligence community and ask whether that document can be handed over to the attorneys. And then that document mentions a document. And right, it's turtles all the way down for quite a while. Now, the judge in this case has set a trial date for July 8th as of now. I don't have much confidence in that being the final trial date at all. I've never thought this case would go to trial before the election for all of these reasons that I'm setting out. But there's one other wrinkle that's worth mentioning,

and that comes from the Rob Her report. And let me just put my disclaimer. I'm friends with Rob Her. I worked with Rob Her at the Department of Justice. I have not, however, helped Rob Her prepare for his testimony or anything else related to what he's doing. In Rob Her's report, they talk about Joe Biden's defense. which is referencing something that Reagan did.

Basically, Reagan took home his personal diaries from the White House, and that included classified information. Now, this isn't a document more classified. It's rather like Reagan writing down things that happened to be classified. Reagan took those home with him, and the National Archives and the Department of Justice needed them for a different, totally unrelated case. So Reagan was like, here you go.

They used those. They gave them back to him. He was allowed to keep them at his house until he died. the Department of Justice never charged him with a crime, National Archives, never asked for them back. I think the fact that that was Biden's defense for why he shouldn't be prosecuted for the willful retention of classified information because, quote, as a former vice president, I was allowed to do it, which sounds a whole lot like what Donald Trump said in this case, I think it does provide this additional wrinkle that they're going to have to figure out, they're going to have to make a real argument to this jury about why they charge something, why they charge Donald Trump with something

that they didn't charge Reagan with, that they didn't charge Biden with, and that in fact, they didn't even investigate Reagan for. They knew about it and just allowed it to continue. The distinction that they're going to try to make is the difference between sort of writing down classified information and keeping classified information next to the chandelier in your bathroom that's marked classified.

I'm just not sure I see the legal distinction. between the two, really. Anyway, that's a problem, a legal problem with the case that we're just going to have to work through. Mike, Jonah. Some of us were put off by Hillary Clinton's handling

of her classified material, of her server. I will never, ever let go of the fact that she said the server was secure because it was guarded by the Secret Service. Some of us also will never let go the true childlike joy that came with being able to make fun of Sandy Burger for shoving classified

documents down his pants. But there was this more serious things. There were a lot of people who said, if you were a lieutenant on a sub and did anything like this, you go to jail for five years. career would be over, it would be ruined, you'd be dishonorably discharged, and maybe he sent to Leavenworth or wherever. And this, like, I'm a big critic of populism, but like this defense, Reagan did it, Biden did it, so I can do it, presidents do it all the time,

vice presidents do it all the time. It's not great for the system if this becomes this thing where just elites are allowed to do stuff with classified information that gets the plebs thrown in the stockades. Is that going to come up in all of this? Is this going to come back? Or is it because it's now bipartisan in this tribal polarized world, you're not allowed to make populist points that indict your own side? I think that in the political realm,

your latter position or your latter point is correct, that this essentially becomes it's like trench warfare on the question of who is who is guilty for retaining classified which president or vice president is guilty for retaining classified documents

you did it no you did it and they're like I learned it from you dad I learned it from you Papa Reagan but one thing that is for us about, also, let me, let me deal with the political question and then go back to the legal question. So the political question, I think the Her report really takes the wind out of the sales of Trump critics who were saying that this proves that Trump is uniquely dangerous

when it comes to the way classified documents are handled by former presidents and vice presidents. I think on the surface, on the question of what does your average voter think about this, it does come across. The idea is, I think that it's out there in the ether is that Trump did it and Biden did it. And so it's a wash politically. I think that is, I think the facts are important and the facts if they were to be sort of litigated in the court of public opinion, would demonstrate that there is a significant difference in the Biden case and the Trump case and it comes down to to me at least

the the obstruction charge that Trump has been charged with. It's there is what is so sort of was egregious about that. Can I just add, by the way, the obstruction charge is dead to rights. You'll notice I didn't throw any shade on the obstruction charge. And I just also want to violently agree with your point that the facts between Trump and Biden are different, i.e., once the feds asked for the documents back and Trump said, no, that's where the willful retention arguments come for Trump. And where the problem is if he was allowed to keep them all la Reagan, then the feds didn't have

the right to ask for them back. That's where it gets messy. But fact-wise, I just want to really, really agree with you. The facts are very, very different. Yes. And I think that is a nuance that partisans on either side of this issue sort of lose sight of which is was always to me the most striking thing about reading that indictment of the

indictment of Trump was the facts and the evidence that the prosecutors are presenting in this indictment which demonstrate that Trump did not only have these and kind of try to hold onto them but he is alleged to have

essentially lied to investigators or asked people in his employee to lie or hide things. That to me is, there's a little bit too much nuance for the Court of Public Opinion, but if this were litigated in that court, say in a presidential debate, it, you know, I would, I would, and everybody was sort of operating on all cylinders, which we know Donald Trump and Joe Biden will be in the debate, in the president's debates that. absolutely happen. Basically, you and I should have this debate and it would be far more interesting than Trump and Biden having this debate. Exactly. So, but, but I, I, I tend to agree that the political, uh, element of this case has been severely neutered by the her report, uh,

and by the fact that, as Sarah pointed out, the, the, uh, process for prosecuting, for, for, to go into trial with a, uh, with a classified documents case like this, it's just, long and drawn out. And it ain't going to end anytime soon. So I just want to say, you know, it bothers me that we don't speak British English sometimes because it lends itself to better wordplay for headlines. And like if this was going on in England, you could have a headline because the word to throw something away or trash in British English is bin.

You could have all sorts of bin her headlines if we were in the UK. And that was labor, Jonah. That was labor, but go ahead. I had to get there. I've been trying to get, I've been wanting to do. Me talking about the her report with, like, people has been a who's on first escapade. Like, well, did you read her report? Whose report?

Her report. Not whose report. This episode is brought to you by Squarespace. Squarespace is the platform that helps you create a polished professional home online. Whether you're building a site for your business, you're writing, or a new project, Squarespace brings everything together in one place. With Squarespace's cutting-edge design tools, you can launch a website that looks sharp from day one. Use one of their award-winning templates or try the new Blueprint AI, which tailors a site for you based on your goals and style.

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Hunter wait we didn't do Georgia oh Georgia oh that's course we have to go to Georgia Georgia's not on your mind Georgia's not on my mind all right

let's take the midnight train to Georgia I don't know Mike do you want to do this one's such a mess it is a total mess it's not even law anymore it's just mess it's just soap opera look I'm happy I'm happy to discuss

I mean I don't know if you had a question Jonah but it's like Mike what are the basic contours of the state of play in the Georgia version of it. Do they call it RICO in Georgia? Or is it just the Georgia version of RICO? I believe...

Racketeering? I believe they call it I believe they call it in some places RICO. It's hard to tell. Let's just call it racketeering. Okay. It's Fawney. Not Fannie. Fawny Willis. Speaking of British terms. For sure. I got a giggle out of Mike.

Don't go there. Fanny will us? No, anyway, so. So. By the way, is that the word that is most different between British English and American English? Fanny? Fanny? No. Fanny in English and Fanny and British.

Nappy, maybe? Maybe. We will have that conversation the next time I have you on the remnant where I have full and complete authority to talk about what I want to talk about. So she made what some people would say are some poor decisions. Please dilate on this.

So, so to speak. So, cut that out, please. Definitely don't. So let me give some quick background here. So this racketeering case that Fonnie Willis... I'm going to be giggling for the rest of the podcast now. There's just every time Mike says anything, listeners, please hear me saying, that's what he said

to all of it. Okay, please continue. I was serious journalist. I would just like to say that for the record. You used to be before you looked up with me. Exactly. So, talk about poor decisions. We would be here all night.

That's what. So the background of this is that, is that Fannie Willis, as Fulton County DA, approaches what seemed to be a straightforward case of Donald Trump breaking a Georgia state law regarding election interference, for lack of

a better term, in his effort to urge officials in the state of Georgia to change the outcome of the election. She took that kind of straightforward case

and instead decided to prosecute prosecute a big racketeering case that brought in something like 19 co-defendants with Trump. Other lawyers and political aides to Donald Trump, who were all a part of this conspiracy in her estimation to change the outcome of the election. And the facts of that, I mean, I think a lot of it is pretty well established. And I bet, you know, on an individual basis, she might be able to prove a lot of that for all of these. But she sort of went the complex route.

And it was probably inadvisable for her to do that. I've talked to some lawyers in Georgia who say it would have been a slam-dunk case if she had just gone after Trump on this narrow issue. But she tried to do it. The real problem is that one of those co-defendants, a political aide named Mike Roman, a longtime Republican, and specifically his lawyers, have completely derailed everything by bringing forth some evidence that Fannie Willis had a romantic or had a romantic relationship with one of the people that she hired to help. her prosecute this case and that as a result of her hiring this, what they claim was a romantic partner beforehand, got him a really sweet contract that they used a lot of this public money that was meant to be prosecuting cases like this to give him a, yeah, again, a nice fat paycheck, to go on some nice vacations, that she just also happened.

to benefit from. And what has happened in this process is we've had just a soap opera in Georgia where Fannie Willis sort of never denied that she had this relationship. She went to a very famous historic black church in Atlanta and defended this man that she was having this relationship with. Then she admitted in court filings that, yes, they did have a relationship. But it didn't start until after she hired him. Now the lawyers for this Trump aide have got some proof that actually they did have this relationship.

Bottom line is it's a whole mess. It's a lot of he said, she said, when did they start seeing each other kind of question? And the bottom line of it all is there's a decision right now before the judge overseeing the case about whether to disqualify Fani Willis from this case, from prosecuting this case. And if he decides to do that, and a lot of people think he could, it's very possible. This trial ain't going anywhere fast because under Georgia law, a new prosecutor has to be appointed. There's a whole kind of commission that makes that decision.

there's another case in which Fannie Willis was taken off was disqualified having to do with the now lieutenant governor they weren't even close to trial in that case they still haven't appointed a new prosecutor for that and she was taken off the case a year ago this is not going anywhere anytime soon unless she's kept on the case and with every day every little bit of new revelation

I don't think that's going to happen so there it is so it's a big mess Is there anything you disagree with there? It's a big mess. Now, so I mentioned on the classified documents case. For each of these cases, there was a way to bring a case that could have gone to trial sooner. And it's worth just, I guess, going through those really quickly. So classified documents, you could have done obstruction only.

The January 6th case, just bring one of the charges, not for and don't include the DOJ thing. Alvin Bragg, there was nothing to bring there. But then in this Georgia case, I think it's worth mentioning, she could have brought just a single case against Donald Trump for the phone call that he made for the like, hey, find me 12,000 votes, whatever. There was a day where I had memorized that, and now it's all in a mush.

But instead, she wanted to indict 19 defendants and 41 charges because she was the last indictment. She also was an elected official. this was also part of her you know campaign and fundraising by making a sprawling indictment with so many charges over so many people um i'm not saying this was inevitable in any way but the delay actually was and the fact that these charges against her came from one of the like 19th defendant to get added basically according to uh you know sort of sources around georgia Mike Roman was sort of the last person that they were like, well, okay, let's include him.

And he's the one who got this on her. Again, it's not that this was inevitable, but something was inevitable. The delay was inevitable. We've seen the like, I want to remove this to federal court from two or three defendants. And you're like, well, I don't want to get tried with that guy. Like all of those motions were going to go on when you try to say that you're going to do 19 people together. It just doesn't work well. So does anybody actually think that?

The primary reason she brought the big 41-count 19 defendant racketeering thing was to justify giving her boyfriend a job? Or is that just like icing on the cake kind of thing? That's the allegation that would get her removed from the case. Right. There's no particular evidence for that aside from sort of the circumstantial evidence, you know, sort of what I said of like, well, if she hadn't done that, the case would have been easier, faster, harder, stronger, better, whatever.

But that's not evidence. Right, because there are other motivations that could explain it, which would do the trick in a court. Yeah, headlines. And again, I think to underscore Sarah's point, this is an elected official in Fulton County, Georgia, which is a Democratic county, does not like Donald Trump. And, I mean, an elected prosecutor looks for a case like this to prove to her voters that she means, you know, she means business on the things that they want to see prosecuted. It's a fringe benefit that she would get to enrich her boyfriend, her boy friend, toy, and herself. by getting, and I will say there's going to be some interesting down-the-line consequences.

There are some people in the Fulton County government who were unhappy with her because they've appropriated money. So it's going to get, I just, the word that keeps coming back to my mind on this is hubris. And there's something like Greek, I wouldn't call Fonnie Willis a tragic figure, but there's something Greek tragedy-ish about the circumstances in Georgia. and Trump once again has the best enemies. Well, see, but that's, I mean, that's sort of the Greek, tragic, weird, I don't even tragic, this isn't the Greek mythopoetic thing about this, is that Trump is not a sophisticated thinker about a great many things,

but because he pursues his advantage, with maximum aggressiveness in gusto and doesn't mind saying things like he whines until he wins and is utterly shameless about things. It puts him in this weird place where his luck just keeps working. I mean, he is wildly out on the right tail

of the distribution of luck when it comes to this stuff. Or, and this is where the lawfare argument comes in for the right, they would say, no, it's not luck, is that these people are corrupt and they're bringing bad cases and that's why every case falls apart

because they're not bringing them for the right reasons like they would against any other criminal defendant. You know, you get to the civil case against Donald Trump brought by the New York Attorney General and there's just no evidence that any similar case like that had ever been brought in the 12 times they've used that statute. None of them look like the Donald Trump case.

And so the argument from his voters is no, you think it's luck. We think it's proof of their corruption. Yeah, but I'm perfectly comfortable thinking it's both. Right? I mean, again, it's just sort of like... Incompetent corrupt people is really something. Well, but it goes back to my point at the beginning

where, like, courts shouldn't be deciding a lot of these things. Voters should just be repulsed by the behavior, and he should have no political future. But because we don't live in those times, every, all the other institutions that aren't designed to be dealing with this get tested. But it's because, see, again, like, that their argument would be, it's because those people don't believe they can beat Donald Trump at the ballot box. They don't believe they can beat him politically. So they're abusing the criminal justice system, which is what makes

us defend him and vote for him. Because the fact that they will go to those lengths when they're losing the political argument means that those people can't be trusted with power, that they can't be elected. And so Donald Trump is the person they fear most. Then by God, I'm voting for Donald Trump. Yeah, and I get that argument. It's just like, look, an escape monkey from a cocaine study goes around running with scissors, doing crazy things, and exposes the fact that lots of institutions aren't equipped to deal with that. That is not an argument for making the escape monkey president in the United States. And it gets back to my, I brought this up a million times, you know, like Richard Jewell, the guy who was falsely accused of being the Atlanta Olympic bombing, truly railroaded

by the federal government, truly given a raw deal, all that kind of stuff, that doesn't mean we should nominate that guy to be president of the United States, right? You can hold these two thoughts independently in mind. The thing I actually most often go back to is Bush v. Gore. The system was never designed to actually deal with a real tie. It just didn't, like, no one knows, like systems have margin of error in them, right?

They have, like, there's some play in the gears. And when you actually get an actual statistical tie, like it turns out it's impossible to prove the exact number of votes in a major jurisdiction, you know, down to like single digits. Jonah, I'm so concerned because when that case came down and I called my dad, that's literally exactly what he told me 20 plus years ago. That's weird. I'm sort of a surrogate father figure.

Anyway, I know we're, I know we're, going along now, but like we got to do, like, just work to use a phrase that's out of favor these days, fair and balance. We got to talk briefly about the Biden stuff. I'll do a little opining here and just put it out there that my view on this is that Republicans are completely screwed up. You can tell me where I'm wrong. We'll do it that way. Republicans are completely screwed up this impeachment stuff. They often mumble when it comes to the dates of the things that Joe Biden allegedly did because that's a way to make it sound like he was vice president or even president when he did things that would be questionable if he were in office but are

much less questionable if you're not in office. And that said, people who leave office with no, particularly people who leave office with, leave office with no intention of running for office again, do all sorts of shady things that I think are gross in terms of influence peddling. And I think that's what Biden was doing. He was influence battling. I think, It's obvious that he was influenced petting. I think if he had been a Republican, lots of people who say he did nothing wrong would be disgusted by a lot of the stuff

that he was doing. But no obvious, like, slam dunk evidence of crimes and this stuff with this Smyranoff guy who I thought was doing stand-up comedy and Branson, but that's a different Smyranoff. Total screw up by the Republicans on this. But it doesn't actually prove at all that what the Biden family, forget crime family was doing,

was shady and kind of gross, and that Hunter is a deeply flawed human being that was doing really gross and terrible things. Where am I wrong? So I just want to point out that this sounds exactly like the hush money case in the sense that he did the bad thing, the immoral thing, but that doesn't make it a crime.

Donald Trump paying hush money isn't a crime by itself, and Joe Biden influence peddling after he left the vice presidency isn't a crime. It's just gross. And that's where I think a lot of people on both sides kind of get lost. It feels like it should be a crime because lots of people want everything immoral to be a crime when it's sort of their morality that's being offended. But adultery isn't a crime. Cutting someone off on the freeway isn't a crime. And these gross things aren't crimes either. Wait till I'm elected president.

No, that stuff is a crime, Jonah, actually. You're, no. Animal cruelty. Animal cruelty. President of total complete immunity. Total immunity. I don't have much to disagree with. The Smeared off, so for context, this is the vodka.

Yeah, it's not Yacov. Not Yacov, smear enough. What a country. What a country. Yeah. I've got to recalibrate. Everyone's thrown off by my professionalism. Yeah, exactly.

I can't believe how professional this podcast is going. So I do think the indictment of Alexander Smyranoff, who was this FBI source that provided a story that gave the Republicans in the House. really the meat of their argument against Joe Biden. That Hunter Biden's icky influence peddling was something more than that. That it was, in fact, Joe Biden himself using his position as the vice president, making decisions, policy decisions on behalf of the Obama administration to benefit his son. This was the core of the Republican argument for impeachment. And, of course, as we know, impeachment doesn't have to be—impeachment isn't a crime in the statutory sense.

It is whatever Congress deems is a high crime or misdemeanor a president can be impeached for, or another federal official, for that matter. And Smyranoff's story, which placed a specific time period during which Joe Biden was somehow using his son's position in order to influence the Obama administration policy, that story, the FBI and federal prosecutors now say was completely made up. And that this Smyranoff guy is going to go to jail for lying to the FBI. FBI. And I think that puts, that is essentially the nail in the coffin. I don't think Republicans are going to stop pursuing the impeachment inquiry, but it is going to fizzle out. And as it really has been for the past few weeks and months, you know, it's going to become, it's going to devolve into a let's get Hunter Biden game, which, by the way, Hunter Biden is like, there is a criminal pursuit of under Biden.

There's a there are cases against him so they're going to get him in the criminal justice system but I think the effect of this is we're all going to forget about the Biden

impeachment inquiry in a year. I have something really important to say. Did you know today is only the 8th Thursday, February, the 29th in U.S. history? And I guess partly that sounds like too many to me.

Eight sounds high. No, that makes sense. I mean, it's correct. So I'm, I mean, just vibes. Vives. Eight Thursday, February 29th in U.S. history sounds high to me. Well, you know, there's like, was it President Tyler's grandkids?

Yes. Or alive, like, as of like five years ago. Yeah. I believe one has died since then. America's young. you know that's why the eight sounds too high yeah no you're right it does sound too high um i wonder what the jews were thinking with that um because you know they run everything um all right so i don't have enough worth your time because this is a collision takeover you control

the vertical you control the horizontal is there some some way we can get out of this or are we just going to spend eternity here i thought my eighth thursday was a pretty good way but then you've crushed it by making it not the end. Or insinuating that it's part of a Jewish conspiracy. We could just keep talking like this, and Adom can just slowly turn the volume down. And then nobody's great. It's like, and then like take 20 minutes, just like the podcast keeps going in total silence, like a fill-up class song.

And then the volume go back up, but we're still talking. It's the Strawberry Fields Forever of Dispatch Podcasts. And another thing about the Irish. How dare you, sir? How dare you? No, that was, John Belushi used to do these S&L commentaries. Yes.

And the whole point of it was he would just start on something totally reasonable. And by the end of it, he would get apoplectic and hurl himself at the ground. And don't get me, don't even get me started on the Hibachi, you know, just like these random things. Y'all saw Liam Neeson's going to do the Naked Gun reboot? I did. That brings me joy. I don't know how I feel about that. I put a thing in Slack about him doing improv,

and if you guys haven't gone and watched the video I put in there. Oh, I did. It was incredible. I haven't watched it. It was fantastic. That's what you're doing after this podcast. We can put in the show notes. Nah, jinks.

I like it. All right. We're done here. Clearly. We decided rather than, I'm a big believer as a writer and show, don't tell. That's right. So we thought we would show not worth your time rather than tell not worth your time.

So with that, thank you for the friendly takeover of the Dispatch podcast, Michael Warren, Sarasger. And by all means, if you don't already, don't let my jocularity and ridiculousness at this time of night disoad you from taking the collision seriously. It is a really valuable document that really does shed a lot of light and on the weird disco ball of assinity

that is the intersection of politics and law these days. So with that, thank you all for listening. Bye. Say words now. You can't make me. All right, bye, guys.