S2 Ep1023: Ben Wittes: Sorry, We Still Have Due Process

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Speaker 1 Hello, and welcome to the Bullard Podcast. I'm your host, Tim Miller.

Speaker 1 Delighted to be back with my pal, editor-in-chief of Law Affairs, Senior Fellow in Governance Studies at the Brookings Institution. He also writes Doe Shirt Daily on Substack is Ben Wittis.

Speaker 2 Ouch.

Speaker 1 Now, is that not right?

Speaker 2 No, you know, that hurts. First of all, Dog Shirt Daily predates Doge.

Speaker 2 And, you know, that's like something I would expect Dan Bongino to say to me. And I, you know, who I saw on the Amtrak the other day, he was sleeping.

Speaker 1 Mouth open or closed?

Speaker 2 It was closed. He wasn't a bad sleep, you know, but it was.
He is the deputy FBI director sleeping during business hours. And

Speaker 2 if Dan Bongino on his podcast called it Doe's shirt daily, I would think, okay, but for Tim Miller to do that, oh, that's like.

Speaker 1 Well, he used to be a competitor with me in the Apple Pod ratings, you know, now that he's been promoted, I guess, to deputy FBI director.

Speaker 2 You have to aspire to.

Speaker 1 No, yeah, it was nice for me. I moved up one slot.
And, you know, in the Wes Moore administration, who knows what I could be deputy of.

Speaker 2 Do you feel qualified based on hosting the Bulwark podcast to be deputy FBI director?

Speaker 1 Boy, you know, and it does prepare you for a lot. You got to have a wide remit.
You know, you got to think about that. You got to be up relatively early in the morning.
Right.

Speaker 1 So I also take naps midday. I guess I'd say this.
I think I could do a better job than Dan Bongino.

Speaker 1 I don't know if I should be at the top of the recruitment list for the future, but I don't want to close any doors to myself, Ben. You never know these days.

Speaker 2 You know, for those who don't know, I also host a podcast, the Lawfare Podcast, and my guerrilla one, Dog Shirt TV.

Speaker 2 And I feel very qualified to be deputy FBI director against the Bongino standard. And so I just, I have some experience that he doesn't have.

Speaker 2 For example, I've run Lawfare, which is at least an organization devoted to national security issues, whereas,

Speaker 2 he really had never run anything.

Speaker 2 So I feel like

Speaker 2 this gives hope to all of us who are wildly underqualified to be FBI deputy director.

Speaker 1 I'm going to float you for the short list

Speaker 1 in our dystopian AI politico newsletter in 2036, if we ever get our democracy back.

Speaker 1 Ben,

Speaker 1 Ford Lawfaire, which you mentioned, a venerable publication that I'm reading more often than I'd like lately.

Speaker 1 You wrote, I I guess, two days ago now about Judge Bozberg and the other Alien Enemies Act case that has kind of gotten pushed out of the news because of Obrego Garcia. And so I want to start there

Speaker 1 and I guess we'll just leave it at the biggest picture. Can you give us the kind of state of play on what we know about the case with regards to the Venezuelans who were also sent to Sukote?

Speaker 2 Yeah, so what we know is that

Speaker 2 Judge Bozberg, you know, tried to prevent this from happening by issuing an order that basic, while planes were in the air

Speaker 2 saying they need to turn around, the government did not follow that order. The planes landed in El Salvador and the

Speaker 2 contents of the planes, which is to say 260 plus human beings, were transferred to the custody of the Salvadoran government and have been, one of whom was Mr. Abrego Garcia, by the way.

Speaker 2 But the others who have not had kind of individual attention on them, and some individuals have, but

Speaker 2 most of them on these three planes, two planes of which were covered by this order, have kind of become this mass of people who are alleged to be Trenda Aragua members. And

Speaker 2 Judge Bosberg has been in the position ever since of trying to figure out what happened, who violated the order, did somebody violate the order.

Speaker 2 The Supreme Court now 10 days ago vacated the order on the theory that these cases should have been brought as habeas petitions in the locations in which the people were being held.

Speaker 2 But yesterday, Judge Boseberg issued a 46-page opinion that basically held

Speaker 2 three things. The first is

Speaker 2 while my order was later vacated, it was valid at the time and the government was obliged to follow it. Number two,

Speaker 2 that the government didn't follow it and there is probable cause to believe that somebody in the government intentionally and willfully violated that court order.

Speaker 2 And number three, that the government therefore has a choice, which is it can either act

Speaker 2 to

Speaker 2 remediate, in the language of contempt law, purge the contempt, which probably means bringing these people back.

Speaker 2 Or in the alternative,

Speaker 2 it can identify the person who made this decision decision so that I, Judge Boesberg, can hold him or her.

Speaker 2 And by the way, we all kind of know that the person in question is Stephen Miller, but we don't know that in a way that a court can find, right?

Speaker 2 And so finger the person

Speaker 2 so that they can be individually held in contempt. And as of I can't remember if it was late last night or this morning, time all blends together.

Speaker 2 The government has announced that it is appealing this ruling.

Speaker 1 Got it. Okay.
So, this ruling then will go back to SCOTUS.

Speaker 1 And then simultaneously, there is like a group effort where, like, I guess the ACLU and others are suing on behalf of these Venezuelans, like in the Texas Circuit and New York, I guess.

Speaker 1 What's happening with that?

Speaker 2 So, there are various efforts to sue on behalf of people who are still here. Right.
But, this is really the main line effort to see if you can force the government to bring them back. And,

Speaker 2 well, it doesn't go directly to the Supreme Court. It goes to the DC Circuit first.

Speaker 2 And there's a question about whether they will hear it, because normally an action like this is not final enough to appeal. There's been a lot of give in what counts as an appealable order recently.

Speaker 2 So I wouldn't be surprised if the Supreme Court

Speaker 2 thought about it in a kind of shadow docket sort of way.

Speaker 2 But right now, Judge Boesberg is moving along and has given the government, I think until, I can't remember what his deadline was for them to respond to the order, maybe the 25th or the 28th or something.

Speaker 1 You know, the thing about this case, which is why it's important and why I wanted to lead with it, is that you can already see in the public discourse of the Abrego Garcia case, like making all of this about one individual person, you know, on the one hand, has some benefits, right?

Speaker 1 It can be can be a lightning rod for people to, you know, engage on this. There's focus on one person in the media.

Speaker 1 That's a, you know, I guess using a George Floyd and Black Lives Matter as an example for something like that.

Speaker 1 On the other hand, you know, like kind of the debate over what the government did can get bogged down in

Speaker 1 the details of that case. I'll get a little bit more into Obrego Garcia in a second.

Speaker 1 And so like taking it out to the 30,000-foot level, you know, arguing on the grounds that actually, no, the government just doesn't have the right to take people off the street without due process, send them to a foreign concentration camp, leave people there indefinitely, and then just say, trust us.

Speaker 1 The people that are there are all are all evil gang members. Like, that's just not how the American system works.

Speaker 1 And, you know, I think that that argument, you know, you're already seeing the polls is compelling if you can get it in front of people. Right.

Speaker 1 If instead what gets in front of people is the details of like each individual and whether or not they find them personally sympathetic, you know, there are going to be some potential pitfalls with that.

Speaker 2 Yeah. So let's talk about these two cases and why they're individually important.
First of all, but for.

Speaker 2 Kilmar Abrego Garcia, the number of people who would give a shit about these three airplanes that went to El Salvador would be dramatically lower. You would still care.

Speaker 2 I would still care. You know, JVL would still care.

Speaker 1 Anyone suffering through my rants on Instagram would care.

Speaker 2 But maybe because they want you to calm down and shut up.

Speaker 2 But

Speaker 2 you get it, Tim. I have listened to all of them and said, you go.

Speaker 2 But I acknowledge that I'm the minority on that. You know, the number would be the bulwark crowd, right? Would be the people who are reluctantly reading lawfare again crowd.

Speaker 2 Those are the people who will care without a name.

Speaker 1 Civil liberties lefties.

Speaker 2 The name

Speaker 2 Abrego Garcia and the specific facts of his situation

Speaker 2 matter a great deal in terms of putting this in front of people. And

Speaker 2 when you have an individual,

Speaker 2 Stalin, I don't know if he really said the death of one man is a tragedy, the death of a million men is a statistic, but it's famously attributed to him.

Speaker 2 And once you take it from the 280 people and you bring it down to the level of one person,

Speaker 2 you humanize it. And that's the role that the Abrego-Garcia case has taken here.

Speaker 2 Also, the fact that the government, in court at least, acknowledges that it was an accident and that it was a screw-up, which the other cases it's very, very proud of, right?

Speaker 2 So if you read Judge Boesberg's opinion yesterday,

Speaker 2 and I urge people to do it because it is a model of

Speaker 2 the craft of holding the administration accountable for these barbarities, it's this is how it's done.

Speaker 2 And, you know, one thing it isn't is personal. He refers to himself constantly as the court, you know, as though he's some disembodied entity.
There is no Kilmar Abrego Garcia, right?

Speaker 2 None of the detainees have names, right?

Speaker 2 It's super, super impersonal, but it is a methodical catalog of the events that convince him that the government didn't just not follow his order, but willfully defied his order and conspired to defy his order.

Speaker 2 And,

Speaker 2 you know, that is great for the law nerds like me. Like, you want a record like that.
It's really good for the D.C.

Speaker 2 Circuit and the Supreme Court, because if Sam Alito, you know, has a knit to pick, he's going to pick that nit. And so you want to close every door and dot every I and cross every T

Speaker 2 and make sure your record is pristine. And that's what Judge Boseberg did.
But if the goal is to appeal to the public, this is dry as dust. You know, and for that purpose, you need a name.

Speaker 2 You need somebody who's

Speaker 2 married to a U.S. citizen and has a five-year-old autistic child and

Speaker 2 has been working, never been charged with a crime in either this country or in El Salvador, right? You want to humanize it. And that's why the Abrego Garcia case is so important.

Speaker 1 I mean, I agree with that in this case that the Abrego Garcia case is also just so cut and dry, right? It's like the government admitted they made a mistake.

Speaker 1 And, you know, so he can be the lightning rod. You know, now we see what the downfalls of that are.
Like there's, you know, now this domestic, you know, violence filing, you know, from five years ago.

Speaker 1 You know, his wife made some court accusations about abuse. you know the MAGA folks are talking about that.

Speaker 2 Yeah, although I would like to say that that's a little bit of an overbroad argument, because if you could summarily deport all people who had a domestic violence, like half of the MAGA folks themselves would be on the next plane.

Speaker 1 I mean, the president of the United States is an adjudicated sexual assault committer.

Speaker 1 So we could send him to CCOT,

Speaker 1 which

Speaker 1 people might have mixed views on.

Speaker 1 Yesterday, like the full filing related to

Speaker 1 when Brego Garcia was initially detained,

Speaker 1 he is in the group outside.

Speaker 1 Now I'm having a brain fart, whether it's like a Home Depot or a Walmart or something, that he's in a group outside a big box store a couple of the other people there it seems like were

Speaker 1 ms 13 you know he had some you know wads of bills on him again like all this stuff none of this stuff justifies sending a person to a hole in a foreign country without due process obviously like that said you know getting bogged down into the details of the case i had a maga friend text me the other day they were like i was with you more when you were talking about the gay makeup artists because i was thinking man we might have screwed that one up like this guy seems like a gangbanger to me right the media side of this how do you get attention on stuff and then it's political matter i think that there's importance to kind of just talk about the broad principle of this yeah so that's why both cases are important yeah um one case brings it home and the other case is about the policy it's about the decision to defy a court order and do all this stuff anyway.

Speaker 2 I will say about Obrego Garcia, it is, I think,

Speaker 2 important not to assert that he's innocent of anything. I don't know who he is.
That's why we have process.

Speaker 2 And if the government wants to bring him back and initiate another deportation proceeding against him on the basis that they have evidence that he's MS-13, fine.

Speaker 2 I'm not going to assert that they could have no possible basis for believing that. I will say that that is not what happened here.

Speaker 2 What happened here is that they rounded him up because he was standing in a parking lot with some other people and they deported him summarily with no process, notwithstanding a withholding of deportation order that said he could not be deported to El Salvador.

Speaker 2 And so until you've fixed that problem,

Speaker 2 don't bring me casual allegations that he can't possibly respond to.

Speaker 1 It's not like you have credibility, not you tim miller but you the government it's not like you have credibility to be making casual allegations about this guy right uh that's true you know and that and and to your point like uh you know in the first term like trumps what was rob porter's job trump's staff secretary was like accused of multiple domestic violence situations so you know again this is like these sort of casual accusations are not uh you know not how in america we determine whether someone uh gets sent to a prison camp uh speaking of uh the contrary views on this, I wanted to get your take as a law affair expert.

Speaker 1 I was perusing the free press, Barry Weiss's outfit, last night, because I couldn't go to sleep. I don't know why I thought that was going to help me with that, but that's, I guess, another question.

Speaker 1 And there's an article by a Jed Rubenfeld headlined, No, the president has not defied a Supreme Court ruling. What do you think about that?

Speaker 2 So I have not read the article. What do you think about the headline? The argument depends on splitting hairs.
So let's split the hairs and determine how we feel about it.

Speaker 2 The Supreme Court said two things.

Speaker 2 One is that you cannot deport people under the Alien Enemies Act without reasonable notice to them and an opportunity for them to challenge their designations in habeas proceedings.

Speaker 2 They haven't done it since the Supreme Court said it, but they did do something times 268 that the Supreme Court has subsequently said was illegal.

Speaker 2 Number two, the Supreme Court also unanimously said about Mr.

Speaker 2 Obrego Garcia in particular, that it is lawful and appropriate for the district court in that case, this is Judge Sines, to order that the administration facilitate his return, but not appropriate to interpret the word effectuate his return too aggressively.

Speaker 2 And so far, the administration has done exactly nothing to facilitate his return.

Speaker 2 So, you know, is that violating a court order, or is that merely litigating about what the contours of the Supreme Court's ruling mean?

Speaker 2 I don't think it constitutes.

Speaker 1 That's where lawyers kind of annoy me. Can't we just call John Roberts and be like, bro, what do you mean?

Speaker 2 Well, that's exactly what's happening, right? Because Paula Sines entered an order saying, here's how I interpret the word facilitate, and the Trump administration is appealing that order.

Speaker 2 And that's exactly the phone call that you're describing translated into the language of appellate law.

Speaker 1 How long is that going to take? That feels like kind of a, you know, I could just reply to the Supreme Court with like, facilitate means facilitate.

Speaker 2 Can we, you know, well, yeah, so that's actually pretty literally what her order says, actually.

Speaker 2 And look, appellate law always takes longer than you want it to, particularly when you're sitting in a gulag in El Salvador or when you're concerned about somebody who is.

Speaker 2 But one thing the Supreme Court has not been in these cases is slow.

Speaker 2 So I look, I think it is reasonable to say they have not complied with what the Supreme Court said. Would I say they've defied it?

Speaker 2 Yeah, I would, honestly.

Speaker 2 But I can see how you might split that particular hair and say, if I were Jeb Rubenfeld, I might say, okay,

Speaker 2 they haven't defied it. What they've done is interpreted it aggressively.

Speaker 1 Yeah, if I were Jeb Rubenfeld, if I was, you know, writing for the free press and I care about individual rights and the rights of free speech, and that's the animating element of my website, I might think the thing that outrages me in this case is not that the government unilaterally swooped up someone fleeing communism off of the street because of their tattoos and sent them to a fucking hole outside of El Salvador.

Speaker 1 What I would be upset about is that there are some liberals out there that are overstating the case a little bit on the constitutional crisis.

Speaker 1 And that, to me, is the real threat that faces the country.

Speaker 1 I could see that if I was on their side.

Speaker 2 Let me say this as somebody who does not use the word defy in my own writings and does not ever use the term constitutional crisis. And so I literally cannot be accused of this.
Great.

Speaker 2 I agree with Tim that to be hung up on the excess of the way liberals talk about this, it's not the way I talk about it, though I am a liberal, and it is not precise.

Speaker 2 to be hung up on the precision at this point, rather than to be hung up on what is a genuine,

Speaker 2 whether you call it a constitutional crisis or whether you call it what I would call it, which is a grave confrontation between the executive branch and the courts.

Speaker 2 You know, the problem here is that the executive branch did a set of things, some of them involving the life and liberty of many individuals that are in very dubious

Speaker 2 relation to the law and claim that nobody can force them to undo them. And if you're not confronting that reality,

Speaker 2 you have a moral instinct for the capillaries. Let's just put it that way.

Speaker 1 Yeah. How about if we're going to just pick words, how about an assault on the natural rights of the individuals who fled Venezuela?

Speaker 1 You know, maybe a Lockean appeal to our friends over there at the free press. I don't know, something to think about.

Speaker 2 Yeah, I look, I, you know, my enthusiasm for the free press is altogether under control. Look, the premise.

Speaker 1 Our enthusiasm for the free press not capitalized. Very high, very high.

Speaker 2 Right. But look, let me put it this way: the bulwark and the free press, you know, were founded within a reasonable space of time of one another on opposite premises.
The bulwarks premise was:

Speaker 2 there is a crisis in American democracy, and the Trumpist movement is that crisis. And so, reasonable center-left and reasonable center-right people, it started in the center-right, of course,

Speaker 2 need to come together and confront that crisis. Is that a fair summary?

Speaker 1 Great premise. Yeah, that sounds great.
Yeah, I'm excited about that.

Speaker 2 The premise of the free press, as I understand it, is that there is a crisis in liberals responding to previous crisis.

Speaker 2 And we need to all come together, center-right and center-left, and pick nits from the liberal critique of that crisis. And I have to say, I don't find that a compelling premise.

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Speaker 1 I want to get to the Ukrainians and some other stuff. We've gone longer than I tended on the El Salvadorans, but you can tell I get my hackles up.
But just really quick,

Speaker 1 two other items from yesterday. I just feel like we should mention.
Chris Van Holland went to El Salvador, said he met with the vice president.

Speaker 1 It's interesting to have a vice president in El Salvador when, since

Speaker 1 the world's coolest vice dictator, right?

Speaker 2 He's the second coolest. The second coolest.

Speaker 1 Van Holland Center from Maryland said that the vice president said, so we're, you know, we're relying a little bit on hearsay here, that

Speaker 1 they don't have evidence that Virgo Garcia is MS-13. And he also said that the vice president said that America is paying them to keep these folks.

Speaker 1 These seem like pretty relevant matters for the American courts. I want your take on that.

Speaker 1 Really quick, also, the highest legal officer in our government, Pam Bondi, the Attorney General, countered that.

Speaker 1 She was on Fox, as she usually is, saying that he is, quote, one of the top MS-13 members.

Speaker 1 So it's the first accusation we've heard about that. So anyway, I don't know whether you would think any of this has any legal ramifications ramifications or this is all in the political sphere.

Speaker 2 Well, so there are two legal ramifications. The first is regarding a representation by a senior officer of that government to a U.S.
senator about the state of the evidence.

Speaker 2 Now, that is not going to be admissible as such, but it's atmospherically very interesting.

Speaker 2 And it will be interesting at some point whether El Salvador makes any representation to the court as to what information it has about this individual. The more important element

Speaker 2 is the element about the money,

Speaker 2 because one question is whether Abrego Garcia and the others are still,

Speaker 2 in the language of the courts, in constructive U.S. custody.
That is, you know, if we put you in a U.S. prison, there are steps that the United States can be ordered to take to release you, right?

Speaker 2 But if we put you in a tin box in El Salvador, you know, in a black site or whatever, and it is entirely under their control, there is an actual respectable argument that it may not be remediable by a U.S.

Speaker 2 court. But if we pay somebody to run that black hole that you're being held in, then there is a subsidiary question as to whether that entity is just an agent of us.

Speaker 2 And that becomes much more potentially addressable.

Speaker 2 So I think the allegation about payment is going to be something that both Judge Boesberg is going to care about a great deal with respect to the question of whether there are remediable steps that he can take with respect to the 260 people, but it's very important with respect to, you know, Brego Garcia's case, particularly.

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Speaker 1 All right, let's move on to what's happening in Ukraine.

Speaker 1 I played this audio the other day, but I think it's worth playing again of Steve Witkoff, our

Speaker 1 chief envoy, I guess, to this negotiation, if you want to call it that, between our friends in Russia and our counterparties in Ukraine. Before we get to that, just one other item to set the table.

Speaker 1 Our friend Michael Weiss uh reported that his sources say that there were pentagon figures close to trump that recently questioned one of our allies about why they were still supplying weapons to ukraine that challenge was ignored by the ally and he says also that diplomats in washington report that some Trump aides say privately that they are fed up with Europe's effort to strengthen Ukraine.

Speaker 1 So that's what our European allies are hearing in private. Here's what Steve Wickoff is saying in public.
And there's a little audio hiccup on this, but it's Tucker's fault, not ours.

Speaker 1 You know, don't blame Jason.

Speaker 2 Always blame Tucker.

Speaker 8 What did you think of him?

Speaker 8 I liked him. Yep.
I thought he was straight up with me. Of course, by the way, I've said that.
And you can imagine, by the way, I say that, I get pilloried. Oh, my gosh.

Speaker 9 You're actually. It's so-called communication,

Speaker 9 which many people would say.

Speaker 9 You know, I shouldn't have had because Putin is a bad guy. I don't regard Putin as a bad guy.
That is a complicated situation, that war, and all the ingredients that led up to it.

Speaker 9 It's never just one person, right? So

Speaker 9 I think we're going to figure it out.

Speaker 1 Complicated situation. A lot of ins, outs, and what have yous.
Then maybe you can bring a little clarity to Steve Witkoff.

Speaker 2 You know, I've never met Steve Witkoff.

Speaker 1 You weren't a deal man. You were in a New York real estate deal man.

Speaker 2 I was not a New York real estate man. And look, I mean, Steve Witkoff managed to get a ceasefire in Gaza, albeit didn't last that long.
So I don't want to be entirely dismissive of him.

Speaker 2 That said, I'll play that role on the pod.

Speaker 1 So, you know, it's important that everybody has their own job.

Speaker 2 I'm trying to be, you know, bend over backwards to be fair here.

Speaker 2 This is a morally outrageous statement. And let's focus on three components of it.
The first is, I liked him

Speaker 2 about Vladimir Putin. now

Speaker 2 there are many things you could say about vladimir putin

Speaker 2 who i'm sure is capable of being personally affable um that's part of being a politician and a male manipulator a manipulator to say

Speaker 2 about somebody who is responsible for the deaths of at this point millions of people that you liked him again, just elevates the salience of personal affect over

Speaker 2 aggregate effect on the world. This is a deeply, deeply evil,

Speaker 2 you know, this is somebody who has had a terrible, terrible impact on his own country, on a lot of the surrounding countries, on the United States. And the question was, what did you think of him?

Speaker 2 It was not, you know, how was his manner? Was he polite, right? Was he good company? And it really deeply misses

Speaker 2 the moral point.

Speaker 1 Can I just pause you right there before we get to the other two? Because

Speaker 1 I've been dying to get this off my chest lately because there have been a lot of examples of this very flaw recently.

Speaker 1 There's a pretty widely familiar pop culture totem, particularly for us elder millennials. There's a show called The Sopranos on HBO.

Speaker 1 It's not really that complicated of a moral question, but yet people really seem to struggle with it, which is Tony Soprano.

Speaker 1 It was an actor, it was just a character, but Tony Soprano was a charming character. You might want to go to the Bada Bing and have a whiskey with him and hang out.
He'd tell some funny jokes.

Speaker 1 He would make you laugh. At times, he seemed like a good dad.
Sometimes a bad dad. He likes ducks.
He loves animals. Yeah, he seems to be a lover of animals.

Speaker 1 Like, he also is a fucking bad person who caused the deaths of a lot of people and got himself rich on the back of other people who worked hard. Like this is not complicated.

Speaker 1 Like this is happening a lot when people talk about Trump administration people. J.D.
Vance uses this tactic a lot. Tucker uses it a lot.

Speaker 1 And it's like, yeah, people that are bad and make bad moral choices can also be a good hang.

Speaker 1 I don't really understand why this is complicated, but people's experience with Tony Soprano demonstrated that the human mind sometimes really struggles with this concept.

Speaker 2 Yes, and there's a historical antecedent to this, which is

Speaker 2 the reaction of people to Adolf Hitler. A bunch of

Speaker 2 Western journalists would go there and interview him. And he actually gave a lot of interviews and people were dazzled by him.
He was charming. He was, people found his eyes mesmerizing, right?

Speaker 2 And so you have all these interviews with him where people go there and they're really impressed with him personally.

Speaker 2 So what?

Speaker 2 So that's thing number one. Thing number two is

Speaker 2 the claim he was straight with me.

Speaker 2 You know, this also has a historical antecedent with Putin, which is George W. Bush saying, I looked into his eyes and I, you know, saw a piece of his soul.

Speaker 2 And by the way, like that was unforgivable when George W. Bush did it, right? It's much more unforgivable now.

Speaker 2 Because, you know, then you could say, well, he was elected. He's not the nicest guy, but he's being helpful, whatever.

Speaker 1 We have two decades of info now.

Speaker 2 We have two more decades of info. And none of it supports the idea that he's being straight with you.
He is a methodical liar who, whatever he's being, it's not being straight with you.

Speaker 2 And then the third part is this is complicated. Look, you know,

Speaker 2 there are things in the world that are complicated. Crossing the border of a sovereign state, invading it and stealing 20,000 children, annihilating major cities,

Speaker 2 all on no provocation. This is not complicated, right?

Speaker 2 And the insistence on making it complicated, making it sound like Putin has real grievances, making it sound like there was a real movement in Ukraine to

Speaker 2 join Russia or for like, this is all not true.

Speaker 2 And my closest Ukrainian friends are native Russian speaking.

Speaker 2 Like to say that somebody's native Russian speaking and to say that they are pro-Russian, this is just a nonsensical piece of disinformation.

Speaker 2 And so like everything that could be wrong about that statement is wrong. And I want to add that the only thing more outrageous than that statement is what Trump said in the Oval Office.
Great.

Speaker 1 That's where I was going next. Yeah.

Speaker 2 Go for it. Where he went further.

Speaker 1 You have to do an impression of him, though, because I don't play his audio whenever possible.

Speaker 2 I can't do an impression on him, of him, but I will say what he said, which is he was asked about the attack on Sumi on Palm Sunday, you know, killed 34 civilians at last check.

Speaker 2 On my part, I haven't looked at the latest numbers, but, you know, this is an attack on the center of a city. People were going to church.
And he

Speaker 2 started by saying it was a mistake, which he can't possibly know.

Speaker 2 and a matter about which Russia does not deserve the benefit of the doubt, given its systematic attacks on civilians.

Speaker 1 Are you sure, Ben? Are you sure we want to be fair?

Speaker 1 Are you sure it's not possible that Putin called them, you know, late night, like over a little vodka and was just like, Don, Don, I, you know, I meant like what we meant to do there was like bomb some

Speaker 1 European tanks. You know how we both don't like Europe.
We meant to bomb some European tanks, but we missed by a mile and we accidentally bombed 300 civilians. Like my B.

Speaker 2 So,

Speaker 2 first of all, I'm not saying it wasn't a mistake.

Speaker 2 I'm just saying, like, see previous thing about he's not, he's being straight with you. Great point.
Okay. You know, Russia makes mistakes all the time.

Speaker 2 It's perfectly plausible to me that they were trying to hit a military target. And it's also equally possible that they're trying to terrorize Ukrainian civilians.

Speaker 2 I don't give them the benefit of the doubt. It's not like when the U.S.
military hits a civilian target and says, we fucked up.

Speaker 2 You know, you have a certain amount of credibility. But then he goes on.
He didn't just say, you know, it was a mistake. He goes on and says, this war was caused by Zelensky.

Speaker 2 This war was caused by Joe Biden. It never would have happened if I had been in office.
And so he's asked about the deaths of Ukrainian civilians in a military attack in an aggressive war

Speaker 2 launched by Vladimir Putin. And his response is, you know, it was a mistake.
And the whole thing is the fault of the victim government and Joe Biden. Well, guess what?

Speaker 2 The whole thing is not the fault of Volodymyr Zelensky, and it's not the fault of Joe Biden.

Speaker 2 And if you take these two statements together, you know, you have Witkoff saying he likes Putin, he's got a relationship.

Speaker 2 You know, he looked in his soul and, you know, he thinks he's being straight with me. And by the way, the situation is complicated.
And then Trump fleshes out that complexity into,

Speaker 2 by the way, what we mean when we say it's complicated is it's Biden and Zelensky's fault. You know,

Speaker 2 I got news for you. Sometimes a cigar is just a cigar.

Speaker 2 And sometimes when it looks like the aggressor country in a war of conquest is just killing the civilians of the victim country, you don't need to look for complexity. It's actually just that simple.

Speaker 1 I feel like I always ask you this when you're on, but you do work with Ukrainian advocacy groups.

Speaker 1 I'm just kind of wondering, as you talk to people, you know, kind of this mindset at this point and, you you know, what people think about the state of affairs over there.

Speaker 2 Yeah, so look, it's a very diverse crew.

Speaker 2 It's not diverse on the question of, you know, is it a just fight, right? And, you know, there is a lot of sense of betrayal. There is a lot of commitment.

Speaker 2 You know, people are not going to give up because Donald Trump says he's on Russia's side now. On the part of government officials, the strategy is

Speaker 2 agree to everything we can possibly agree to

Speaker 2 and

Speaker 2 let Putin run out his leash.

Speaker 2 And there was some indication a couple of weeks ago when Trump said he was getting really pissed with Putin that maybe they were getting there. This is a setback in that regard.
Yeah.

Speaker 2 That they're blaming Zelensky for suing.

Speaker 1 Yeah, it's like, I guess if you're in their shoes, you have to imagine that there's a leash. Right.
Right. Like, you have to believe that there's a leash because that is like the hope.

Speaker 1 And you just work with the theory that there's a leash, that at some point it might be possible that the Yankees will, you know, come to their senses.

Speaker 2 You know, that's their only play. So they're playing it.
They're not stupid. Right.
So that's at the government level. At the individual level,

Speaker 2 you know, there's a lot of heartbreak and it's mixed up with people

Speaker 2 not knowing what their personal fates are going to be because a lot of them are here on either U4U visas

Speaker 2 or on temporary protective status, which

Speaker 2 both of which could disappear quickly. And so

Speaker 1 they get temporary protective status other places.

Speaker 2 I mean, that's probably. So most of them have

Speaker 2 ability to spend significant amounts of time in Europe. Europe has Ukraine visas, but people have built lives here.
And

Speaker 2 so there's a lot of anxiety about that.

Speaker 2 And there's also a confusion, I think, because it is quite unreasonable to expect Ukrainians who often don't have perfect English and haven't followed Trump's psychological dramas since 2016 to be deep in what you and I understand intuitively, which is why he hates Ukraine, right?

Speaker 2 What the relationship is between

Speaker 2 Ukraine today and the Russia investigation in 2016, 2017, right? There's a reason why he hates Ukraine. And

Speaker 2 it's not based in the facts of anything that Volodymyr Zelensky has done. It's based on a bunch of crazy conspiracy theories that have their roots roots in 2017.

Speaker 2 And you and I can swap stories about that stuff and about the crowd strike server and Rudy Giuliani's, right? We know that stuff.

Speaker 2 It's all bullshit, by the way, but it has affected the way he thinks in a profound way.

Speaker 2 And it is quite unreasonable to expect a Ukrainian 23-year-old who just doesn't want Russia to invade her country to understand that at an intuitive level.

Speaker 1 He like literally thinks that him and Putin were on the same side of the so-called Russia hoax and that the Ukrainians were plotting with the deep state and the New York Times and Ben Witt, like James Comey.

Speaker 1 Like he really believes that

Speaker 2 this all has something to do with Hunter Biden's lack of

Speaker 2 Ukrainian 27-year-old, you were like a teenager. when some of this shit happened and you weren't following it because American domestic politics, so what?

Speaker 2 and so all of a sudden this is the reason why Steve Witkoff is saying nice things about Putin when he bombs your country yeah right and it is totally unreasonable to expect them to understand this and I have sat around a table with young Ukrainians trying to explain this and where this comes from and had them look at me like I'm speaking Greek.

Speaker 2 And,

Speaker 2 you know, and they're not wrong.

Speaker 1 I tried to explain this in an article a long time ago. I'll put it in the show notes.
It was one of my funnier articles.

Speaker 1 People can go read it if they are like the Ukrainians who think that we're speaking Greek right now.

Speaker 2 But it's really important to understand. And I remember this article.
This is your Rolling Stone article about. No, it's from the Bulwark.

Speaker 1 I might have done a version of it for Rolling Stone, too. I don't know.
Now time is a flat circle, but it was.

Speaker 2 So, look, when you read this article, you have to understand that this story about the so-called server

Speaker 2 is actually an important component of U.S. domestic politics then.
But this is now affecting Ukraine's ability to get weapons.

Speaker 1 Yeah, it is crazy. On the youth thing, just really, really quick, somebody was speaking to my alma mater earlier this week.

Speaker 1 And in the middle of the talk, I was like, what year were you guys born in again? And a kid goes, 2009.

Speaker 1 And I was like, oh my God. And I was like, so forget being in your teens when all this was happening.
For like high school students, they were seven, like they were the age of my child. So anyway,

Speaker 1 you know, the linear nature of time is confounding.

Speaker 1 Last topic, I need to mention my friend Chris Krebs really quick.

Speaker 1 I think obviously listeners to this know he was at DHS in charge of protecting the election in 2020 when he just honestly testified that there was no, you know, fraud.

Speaker 1 There were no efforts to break into the machines. There were no Chinese bamboo ballots.

Speaker 1 Donald Trump got very mad at him about this, and as a result, put out an executive order last week saying that Chris Krebs should be investigated, that he should lose a security clearance, and that the company he works for should lose their security clearance and suffer other consequences.

Speaker 1 So yesterday, Krebs announced that he was resigning from that company, Sentinel-One. It's a cybersecurity company.
He said the choice was his

Speaker 1 and that he wants to focus on this fight to protect our democracy and our institutions. I just, I got to say, number one, good on Chris Krebs.
We don't deserve him.

Speaker 1 It is wonderful that we have somebody out there that is willing to just be honest and straightforward and unapologetic and take on this fight. Number two,

Speaker 1 like this is really unbelievably fucking pernicious and bad. And if any other president in our lifetime had done this, this would be the front page New York Times story every day.

Speaker 1 The President of the United States specifically targeted with an official executive order an American citizen who did nothing except for their job because the president doesn't like that person.

Speaker 1 The president of the United States is targeting and menacing an American citizen as a result, causing him to have to quit his job. A man that's a parent with many, many kids.
This is crazy.

Speaker 1 It is un-American. It is not with precedent.

Speaker 1 And

Speaker 1 because there's so much other crazy shit up there, it's kind of getting swept under the rug. You know, the story that he quit, I saw a lot of places didn't even cover.
So good on Krebs.

Speaker 1 We'll do what we can to help support him. But I don't know if you have any other thoughts on either Chris or on the legal side of this.

Speaker 2 Well, so I have thoughts on both. First of all, on Chris Krebs, you know, one thing Lawfaire spends a lot of time on is cybersecurity.

Speaker 2 And so on the substance of his work, Chris Krebs was one of really two people who created

Speaker 2 CISA as a major cybersecurity powerhouse, the other one being Jen Easterly during the last administration. But this is an organization that

Speaker 2 became a serious government player in election protection, in a bunch of other stuff.

Speaker 2 And Chris Krabs is one of several reasons for that. He did remarkable work.

Speaker 2 And so this isn't a situation in which some minor player is being oppressed for saying something about, this is somebody who made a real contribution and who is being oppressed.

Speaker 2 And the word is not too strong because of that contribution and because he had the temerity to say that the elections that he helped secure were in fact secure.

Speaker 2 And so, I don't want to lose in this that, you know, there were a lot of people who, in the first Trump administration, who said,

Speaker 2 okay,

Speaker 2 it's important that people like me be in, because otherwise, crazy people are going to be in. And as a general matter, I was not all that sympathetic to those claims.

Speaker 2 And I think a lot of people kidded themselves about how essential they were. Chris is not one of those people.
Chris made a real contribution in the first Trump administration.

Speaker 2 And one of the reasons that we had a quite pristine election in 2020 was Chris Krebs. The second is about the oppression.

Speaker 2 You know, the Constitution has a very specific provision barring what are called bills of attainder. You can't legislatively declare Ben Wittis or Tim Miller a criminal.

Speaker 2 You don't get to pass a bill that says you're a traitor.

Speaker 2 You actually have to indict them under law that exists and prove it. Yes.
The British Parliament used to declare, write a bill of attainder and then execute people on the basis of it.

Speaker 2 This is a bill of attainder. It's actually an executive order of attainder.
It's slightly different, but it's the same thing. It's I, the president, point at you and say you're a traitor.

Speaker 2 And it is morally outrageous, it's legally outrageous, and it works anyway. And the reason it works anyway is because if you're a cybersecurity consultant,

Speaker 2 who wants to do business with somebody who's that controversial?

Speaker 2 You know, so Chris will prevail in whatever the fight involves, right? If he sues and challenges it, he'll win, just as the law firms have won, right? Who've challenged it.

Speaker 2 But note that a lot of the law firms fold instead of litigating, even though they know they can win. And why is that? Because it's bad for business to be on the wrong side of the president.

Speaker 2 We have this challenge then.

Speaker 2 We really have to think about it, which is how do we incentivize people to do the right thing when they're legally right, when they're morally right, even though it's bad for business.

Speaker 2 And so hats off to Chris Krebs. He's doing the right thing.

Speaker 2 And

Speaker 2 we should all figure out ways to

Speaker 2 soften the landing pad for people who do the right thing in government and people who are

Speaker 2 four plus years later being oppressed for it while private citizens.

Speaker 1 Amen.

Speaker 1 I should close, but I just want to put one finer point on that just by giving an example, because anyone that is ever a whistleblower is going to suffer some consequences, right?

Speaker 1 Like I think back to the first person that comes to mind is Scott McClellan during the Bush administration, right? Who is a spokesperson who then resigned and kind of spoke out about the Iraq War.

Speaker 1 And that didn't help him, right? Like had he just resigned, he could have gone out and gotten a much fancier job.

Speaker 1 You know, the controversy surrounding it certainly didn't help his future job prospects. But, you know, that's a personal choice and, you know, he should be commended for that.

Speaker 1 Imagine then, if instead of that pointing out how it did, George W. Bush signed an executive order that said Scott McClellan needs to be investigated, that we need to look into this person.

Speaker 1 Again, the New York Times would have covered that every day. Like that would have been the craziest thing that happened.
Anyway, I just think that this is a very important story.

Speaker 1 I don't want to lose sight of it. Ben Wittis, I appreciate you very much for sticking around with me.
Any final thoughts or plugs you have for us before I let you go?

Speaker 2 Can I mention Lawfair's fundraiser? Please.

Speaker 2 We have a fundraiser going on for Lawfair that has gone completely viral for reasons that I'm not sure I understand, except the excellence of my colleagues and the work that they're doing. But

Speaker 2 a lot of people have been tweeting about it and supporting us. So if you are inclined to do do the same, please go to GiveButter,

Speaker 2 G-I-V-E-B-U-T-T-R dot com slash journalism and

Speaker 2 support the work that we're trying to do.

Speaker 1 It's great work. I appreciate it.
It makes me smarter. Not every day.
I can't take it every day, but on the days that I read it, it makes me smarter. It's funny stuff.

Speaker 1 Thank you, as always, to Ben Wittis. Everybody else, thanks for hanging out.
People keep telling me that this podcast is helping them stay sane and is their therapy.

Speaker 1 I've had several people tell me that this week that is boggling my mind because I think it's making me crazier.

Speaker 1 So, like, there's some kind of cosmic thing happened where, like, the sanity is you're absorbing the insanity of the audience

Speaker 2 and you're internalizing it all. It's like the picture of Dorian Gray.

Speaker 1 Yeah, there's a metaphysical side to this. So, anyway, I appreciate it, everybody that's listening every day.
And so, we'll see you back here tomorrow for another edition.

Speaker 2 Peace.

Speaker 1 The Bullwork podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.

Speaker 1 So sorry,

Speaker 1 goddamn, a goddamn shake like a

Speaker 1 baby

Speaker 1 got a

Speaker 1 Got a beam in your eyes.

Speaker 1 Yeah, I know.

Speaker 1 Just can't help yourself.

Speaker 1 Just can't help yourself.