Ben Wittes and Steven Shepard: He Is Still a Criminal

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Speaker 11 Hello, and welcome to the Bullard Podcast. I'm your host, Tim Miller.
We are here today with our man, Ben Wittis, on the Trump trials, on the SCOTUS craziness.

Speaker 11 He's the editor-in-chief of Lawfare, senior fellow in governance studies at the Brookings Institution. He also writes Dog Shirt Daily.

Speaker 11 When we're finished with Ben, I'll be giving you an update on the state of play in the presidential race.

Speaker 11 Then we'll have Steve Shepard on to discuss what a brokered convention may or may not look like.

Speaker 11 Ben Wittis,

Speaker 11 a lot of news. How are you doing?

Speaker 13 Yeah, a lot of news, and it's all bad. You think the debate sucks.
So you say, well, there's going to be a French election and then that sucks.

Speaker 13 And you're like, well, to heck with France, at least we're going to get a Supreme Court opinion. And then that's a disaster.

Speaker 13 You know, you got to look at puppy videos at this point.

Speaker 11 Yeah, puppy videos. Maybe

Speaker 11 some good news out of Britain. I tried to watch the bear for a distraction last night.
That is not a distraction. I just want to warn people.
And so then I flipped over to Presumed Innocent.

Speaker 11 It's doing pretty good. That distracted me for about 30 minutes from the horrors.
So, my Twitter feed ranges from some legal experts who are saying that Joe Biden is now a king.

Speaker 11 We no longer have a constitutional democracy.

Speaker 11 And then some on the other side saying this is being way overinterpreted, sends a lot of stuff back to the lower courts. So,

Speaker 11 where do you fall in that spectrum?

Speaker 13 Well, Joe Biden is a king.

Speaker 13 We no longer have a constitutional democracy, is an excessive formulation of a true point, which is that there isn't any longer any ability to prosecute a president for criminal activity taken within his core constitutional responsibilities, and there may not be the ability to prosecute him at all for activity that is reasonably characterizable as within his outer limits of his responsibilities at all.

Speaker 13 Look, is it rhetorically excessive? Sure, but it's not wrong in the sense that yesterday morning we assumed that a president who commits criminal activity in office is prosecutable for it.

Speaker 13 And today we assume that a president who commits criminal acts in office has a very high degree of immunity,

Speaker 13 although the exact contours of it are still unspecified.

Speaker 11 Yeah, so let's talk about those contours. Yeah, so they basically broke it down into three different types of acts.

Speaker 13 Right. Although they didn't distinguish, I mean, one of the just

Speaker 13 hair-pulling aspects of this opinion is that it failed in the most basic responsibility of an appellate court, which is to give clear direction to the lower courts. I have read this thing carefully.

Speaker 13 I cannot distinguish what's in what basket. That said, there are three baskets leaking into one another, right?

Speaker 13 So, one basket is the core irreducible functions of the presidency that are not regulable by Congress.

Speaker 13 So, for example, the pardon power, giving a State of the Union address, hiring and firing cabinet officers, right?

Speaker 13 These are things that are core presidential powers that the Congress can't really regulate.

Speaker 13 And so the Supreme Court says if the Congress can't regulate them, it follows that the president must be immune from prosecution for acts of that nature.

Speaker 13 Now, whether that's right or wrong, the formulation of as immunity is controversial, but the basic proposition that you can't prosecute the president for doing things that the Constitution gives to him and only him is not especially controversial.

Speaker 13 And so I think if the court had stopped there, the opinion would have been, it would have had its critics, it would have been debated, but it wouldn't be especially controversial.

Speaker 13 It would have knocked some facts out of the indictment, particularly about the contemplation of firing the acting attorney general and replacing him with the environmental lawyer, but you wouldn't have had everybody's hair on fire.

Speaker 11 Yeah, okay, before we get to the next act, though, I do want to drill in on one of those points, though, because you mentioned the pardon power.

Speaker 11 And, you know, several people I saw, including Mona Sharon, my colleague, and others, pointing out the fact that, okay, well, if there's immunity for pardons, then essentially a president couldn't be prosecuted for being bribed for a pardon.

Speaker 11 Is that how you read this? Like, you could bribe presidents for pardons and have immunity?

Speaker 13 Again, this gets to a different aspect of the opinion that is, I just think, wildly incorrect.

Speaker 13 So, the court holds not merely that you are immune, you can't be charged with, you know, issuing an improper pardon, but that evidence of the immune act cannot be used against you in some other charge.

Speaker 13 And so that aspect of the immunity, which just seems to me wildly excessive, does seem to prevent a bribery prosecution for a

Speaker 13 bribed pardon, a purchased pardon. You would be able to charge the bribery, but you couldn't use the fact of the pardon as either the quid or the quo.

Speaker 13 And so, yeah, I think Mona is right about that. I don't think it's an inevitable consequence of saying that core presidential acts you can't be prosecuted for.

Speaker 13 It's a consequence of a second or third or fourth step that the court goes. So the second step is to say that there's this other immunity that covers

Speaker 13 all the other official acts that a president may take. They don't know if it's absolute yet or they don't say.

Speaker 13 So, for example, a veto is a core presidential function, but you know, giving a speech at a rally or consulting with Mike Pence about whether he should be hanged, it's an official thing in some respect, but it's not necessarily core irreducible presidential power.

Speaker 13 So, they say there's a presumptive immunity there, but it can be overcome

Speaker 13 if you can show that prosecuting it would have no deleterious consequences for presidential power. So, how robust an immunity that is is unclear.
That's my first

Speaker 13 hair-pulling criticism of the court. Why do you leave a question that important unclear, right? Your job is to give,

Speaker 13 you know, you haven't defined the boundaries between the core function and the non-core function, and then you haven't defined really when the non-core function is and isn't protected.

Speaker 13 So, let me give you an example of the porousness of the boundary, which goes to one of the examples that hypotheticals that people keep throwing around.

Speaker 13 Droning

Speaker 13 your political opponents, calling out SEAL Team 6, right?

Speaker 13 On the one hand, you can say, well, wait a minute, that's a core presidential function, commander-in-chief of the military, totally core, right?

Speaker 13 On the other hand, you can say, well, wait a minute, Congress regulates the conduct of war,

Speaker 13 a uniform code of military justice, right? They have all kinds of functions in regulating the military. So it's not core.
It's in this second basket.

Speaker 13 So I don't even know the answer to that, which basket that is, if Biden were to call out a drone strike on Donald Trump, is that absolutely immune or is it merely presumptively immune?

Speaker 13 I honestly don't know the answer to that.

Speaker 11 And even if it's presumptively immune, then there are still a lot of limits on evidence gathering and all that, right? And isn't that the other element to this?

Speaker 13 Right. Well, you would have to show for it not to be immune, but to overcome the presumption, you would have to show that the prosecution of it poses

Speaker 13 no risk to

Speaker 13 the legitimate exercise of executive authority. So the final basket is personal conduct, which is not immune.

Speaker 13 Now, we know this includes, for example, sexually harassing an Arkansas state worker before you were president, but what the line is while you're president between the personal and the official is completely unclear, and the court gives very, very little guidance about that.

Speaker 11 Stealing from a CVS feels like that's definitely a personal act, but

Speaker 11 stealing from the Treasury, maybe not.

Speaker 13 Right. What about calling Brad Raffensberger and saying, hey, I just need 11,782 votes? Is that, as the Supreme Court seems to entertain, consulting with state officials?

Speaker 13 about the integrity of an election, i.e. an official act? Or is that your conduct as a candidate trying to corruptly get a Secretary of State to change the outcome?

Speaker 13 I thought I knew the answer to that yesterday morning. I don't know the answer to that anymore.
And by the way, neither does anybody else. And then finally,

Speaker 13 the court takes this additional step, which I think is

Speaker 13 really the most

Speaker 13 mind-boggling, which is that you can't use, it's not merely that you can't charge the conduct. You can't use the conduct as evidence of something else.
So, you know, it'd be one thing to say, okay,

Speaker 13 you can't charge him for

Speaker 13 leaning on Mike Pence because that's somehow official, though I don't understand how, and it's presumptively immune.

Speaker 13 But you can use the evidence that he did that as evidence that there was some kind of corrupt slate of electors scheme going on. They say, no, you can't do that.

Speaker 13 You know, Amy Coney Barrett, who joins for much of the opinion, jumps off the bandwagon for that. So that's sort of an outline of what they did.

Speaker 11 Okay. I want to go a little bit deeper on these Trump hypotheticals in a second, but first,

Speaker 11 I want to listen to President Biden's response in a four-minute teleprompter address from the White House last night.

Speaker 14 At the outset of our nation, it was the character of George Washington, our first president, to define the presidency. He believed power was limited, not absolute.

Speaker 14 And that power always resides with the people, always.

Speaker 14 Now, over 200 years later, with today's Supreme Court decision, once again, it will depend on the character of the men and women who hold that presidency.

Speaker 14 that are going to define the limits of the power of the presidency because the law will no longer do it.

Speaker 14 I know I will respect the limits of the presidential powers I have for three and a half years,

Speaker 14 but any president, including Donald Trump, will now be free to ignore the law.

Speaker 14 I concur with Justice Sodomeyer's dissent today.

Speaker 14 Here's what she said: She said, in every use of official power, the president is now a king above the law.

Speaker 14 With fear for our democracy, I dissent, end of of quote.

Speaker 14 So should the American people dissent.

Speaker 14 I dissent.

Speaker 11 The president and Sonia Saramayora are obviously following on the more alarmed side of the discussion here, but it seems to me that everything that he laid out there on substance is pretty reasonable.

Speaker 13 Yeah, so again, as I say, the description of it as king is a little bit overheated in the sense that, you know, kings are hereditary, right? There are other features of monarchies.

Speaker 13 But the point is not wrong. And being above the law.

Speaker 13 Being above the law, knowing that you wield the entirety of the executive power of the United States and you can't be prosecuted for violating the law. He's absolutely not wrong about that.

Speaker 13 Justice Sotomayor is not wrong about that. And I thought his statement last night was excellent.
And I thought the subtle

Speaker 13 point that he made by saying, I know I will respect the limits of presidential authority, that that respect is now voluntary, you know, and that you're purely relying on character as the check, because the check is not that we'll fucking prosecute your ass after the fact.

Speaker 13 The check is not that we'll impeach you, because by the way, the president will always have

Speaker 13 enough votes in the Senate to prevent impeachment from being meaningful, at least in this political environment. And so the Czech is

Speaker 13 your character. And I do think that's a good theme for him.

Speaker 13 Whether it overcomes other impediments with which you're more familiar than I, I don't know.

Speaker 11 Well, good thing that we don't have the person with the worst character in the entire country as the leading candidate to be the next president, since character is the only check.

Speaker 11 Can we just do a one-minute sidebar before we get back to the Trump trials? I just want to do a one-minute sidebar with you. Sure.
I agree with you.

Speaker 11 The substance of the president's statement was good last night. He has some new bronzer, it looks like.
But that four minutes was the only time that he was public in the past 48 hours.

Speaker 11 My alarm, as people know, is extreme as a political matter, literally more than as like a functional matter of the government. So, you know, I'm just quizzing people.
So on the scale from me,

Speaker 11 extremely panicked about

Speaker 11 the situation that we're in politically to the Biden campaign, which says that he's vigorous and there's no problems here. Where do you fall on that scale?

Speaker 13 I'm less temperamentally inclined to panic than you are, just as a matter of sort of baseline anxiety, I think. But I'm

Speaker 11 this is true. Me and my brother always say to other people when we're talking about our sports teams, it's like, you know, you have a good quarter and I'm like, we're winning the championship.

Speaker 11 And you have a bad quarter and I'm like, we need to trade everybody. So

Speaker 13 I do recognize that weakness in my temperament that said things are pretty bad you know I didn't say it was a weakness in your temperament it may be a weakness in mine because sometimes the situation calls for panic look my my analysis of the situation is not different from yours during the debate I threaded or whatever I don't know what the verb is for that post it I bleated that uh Joe Biden needs to reflect on his performance in this debate and then do the right thing.

Speaker 13 I stand by that.

Speaker 13 I became convinced during that debate that he should not be the candidate. That is not up to me.
As best as I can tell from the DNC's rules, it is entirely up to Joe Biden.

Speaker 13 If he chooses to proceed, I will support him and I will have, you know, the slogan, vote for the codger, it's important, or, you know, codgers, not criminals.

Speaker 13 Look, he came out of that debate, having had the mask pulled off. And

Speaker 13 I

Speaker 13 honestly have doubts about whether he can win. And I have doubts about his performance capability.

Speaker 13 And so, yeah, I'm worried about it, very, very worried about it.

Speaker 13 And the sequence of that debate happening and then the Supreme Court ruling is a very very stark sequence that we cannot count on the criminal justice process to create accountability for Donald Trump, either retrospectively or, God forbid, prospectively.

Speaker 13 And we cannot count, I don't think, on Joe Biden to responsibly assess his own limitations as a candidate.

Speaker 13 And frankly, I don't pretend to understand how this all interacts with his capacity as president.

Speaker 13 I'm willing to believe that he's wise and fine in private settings, if that's what people who have been in those settings with him are saying. I don't really have an opinion about that.

Speaker 13 The fundamental duty is to win because the capacity of the other side for evil is so magnificent. So, yeah, I would say I agree with you, but in a more

Speaker 13 somewhat low-key way, I also don't have large numbers of people harassing me on Twitter about it.

Speaker 11 I can take the harassment because I agree with everything you said. So that was a dark and measured sidebar.
And I mean, my request is also, I will be with Joe Biden. My request is simple, though.

Speaker 11 I would like for him to recognize that he's losing this campaign right now and to act accordingly. And being in hiding for 48 hours is not assuaging my concerns at all.
It's exacerbating them.

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Speaker 2 Get Ready for Malice, a twisted new drama starring Jack Whitehall, David DeCovney, and Carice Van Houten.

Speaker 1 Jack Whitehall plays Adam, a charming manny infiltrates the wealthy Tanner family with a hidden motive to destroy them.

Speaker 3 This edge-of-your-seat revenge thriller unravels a deliciously dark mystery in a world full of wealth, secrets, and betrayal.

Speaker 2 Malice will constantly keep you on your toes. Why is Adam after the Tanner family?

Speaker 8 What lengths will he go to?

Speaker 9 One thing's for sure, the past never stays buried, so keep your enemies close.

Speaker 4 Watch Malice, all episodes now streaming exclusively on Prime Video.

Speaker 11 Back to the Trump trials of this. Sarah Isger over at the Dispatch wrote this, the Trump people and the left's court haters are hot to trot on this being a complete victory for Trump.

Speaker 11 The delay is undoubtedly good for Trump, but as of now, it looks like all but one of the January 6th charges will probably move forward.

Speaker 11 What do you think about that?

Speaker 13 I don't have any idea how she can purport to say that. I certainly hope she's correct, but

Speaker 13 under

Speaker 13 this opinion, Judge Chutkin, the district court judge in this case, needs to assess

Speaker 13 every allegation, perhaps fact by fact,

Speaker 13 for

Speaker 13 immunity. And first of all, she's going to have to hear from Trump's lawyers about each and every fact,

Speaker 13 each and every paragraph of that indictment. There are going to be, I agree with Sarah, a lot of them that are not plausibly official, but are personal.

Speaker 13 But there are going to be some of them that are in this muddy zone, that are

Speaker 13 plausibly within the outer perimeter under as the court understands it. And those are going to have to, you're going to have to have a question about whether those can go forward.

Speaker 13 Then, once you've done all that work at the district court level, which will take

Speaker 13 months, it's subject to immediate appeal before you go to trial. So, you know, you're going to have another trip up and down the appellate ladder.

Speaker 13 So, at the end of the day, she may be right, but without knowing what five of the six justices in that majority think of

Speaker 13 you know which facts are are private and which facts are are official she's kind of talking out of her ear and so is everybody else who's pronouncing confidently about this just to clarify because you've already mentioned this the five or six because kony barrett and the cocoa curtains did speak specifically about the elector scheme and you know saying that she did not think that was included yeah exactly i i think kony barrett has shown her hands about what's private and what's official in a way that the other five have not.

Speaker 13 The implications don't end with this case. People say, okay, the South Florida case is fine because it only involves post-presidential conduct.

Speaker 13 But remember, a bunch of the evidence of it involves the hoarding of those documents, is presidential conduct, and probably involves official acts that he will claim immunity for.

Speaker 11 Yeah, the transfer to Florida, South Florida, right? I mean, like, the literal transfer of the documents to Mar-a-Lago.

Speaker 13 Yes, but also his packing of those boxes, his hoarding of that material, all took place while he was president.

Speaker 13 Finally, the Georgia case is largely the same conduct as the federal case. That's all on hold, but we're going to have a very serious set of implications for that if the case ever unlocks.

Speaker 13 And then the New York case, there are isolated facts in it that took place while he was president, including a presidential tweet. He will surely go and try to have that case overturned.

Speaker 13 The New York Times says he already has, although I don't have independent confirmation of that. So I think it has broad implications for a bunch of those cases.

Speaker 13 And that's not to say the sky is falling. It could be that those implications are very manageable.
Just based on the limited guidance in this opinion. We just don't know.

Speaker 11 Okay. And so Trump then has obviously been bleeding.
Just want to correct record earlier. You don't bleat.
Only Trump bleats. You send considered posts on threads.com.

Speaker 13 Okay.

Speaker 11 But he's been bleeding that this does kind of absolve him of New York. And obviously, we're coming up.
We have sentencing in nine days. What's your sense on that?

Speaker 13 I think his argument in the New York case is quite weak. And I don't see any reason to believe that Justice Marchon

Speaker 13 will accept it. I doubt that the appellate courts in New York will accept it.

Speaker 13 It affects a very limited amount of evidence, and so the evidence that he has can show prejudice as a result of this, I think, is minor. That said, you know, you could appeal to the U.S.

Speaker 13 Supreme Court after this goes up the New York appellate ladder. And again, who knows how justices will think about that? So I would say it's a very outside chance, but it's not a zero possibility.

Speaker 13 I do think Justice Mershon is likely to proceed with the sentencing. And one technical point, none of it absolves him.

Speaker 13 So when you're immune from something, it doesn't mean you didn't commit a crime. If a diplomat from a foreign country murders somebody, they're guilty of murder.

Speaker 13 Our courts merely don't have the power to try them, right? And so

Speaker 13 I do think, as a normative matter, when we describe this, we should always talk about the crimes he committed. The finding that he is immune is not a finding that he is innocent.
It is a finding that

Speaker 13 the courts lack the power to adjudicate it. So just as a member of Congress who releases a whole bunch of classified information on the floor of the Senate, they still released classified information.

Speaker 13 They committed the crime. They have speech and debate immunity, right?

Speaker 13 I do not want to concede ever that if we have to drop a charge or two or three or all of them from the January 6th case, he's still a criminal.

Speaker 11 That's a good point. Okay.
I have one question about just kind of how outraged I should be about this court and their actions and just kind of the plain absurdity of a couple of their decisions.

Speaker 11 And then I know that rapid fire isn't really your cup of tea, Ben, but we do have a couple questions from our sub stack, from our Bulgar Plus subscribers.

Speaker 11 But these two comments from Chris Hayes and Mona Sharon just really stood out to me.

Speaker 11 Chris wrote, grimly hilarious to compare the textual foundation for disqualifying Trump for insurrection right there in the 14th Amendment and the foundation for absolute criminal immunity for official acts, which is nowhere to be found in the Constitution, despite explicit grants of other forms of immunity.

Speaker 11 Mona adds, trying to absorb the Supreme Court immunity ruling, POTUS is immune from prosecution for all official acts, yet the Constitution itself says presidents can be impeached for treason, bribery, and other high crimes and misdemeanors.

Speaker 11 And it explicitly says the president can be impeached and prosecuted.

Speaker 11 That is the thing that is like the most outrageous about this, right? And this is just on a strictly textual basis, like this has been an absurd run of rulings.

Speaker 13 I completely agree. And it goes back a little further than that.
It is very hard, and I say this as somebody who I am not a particular critic of conservative judging.

Speaker 13 There are a bunch of judges on that court, conservative judges whose nominations I supported. I am not a hair on fire person about the courts.

Speaker 13 It is very hard to look at this string of rulings and not see that

Speaker 13 the textual fidelity of the court is directly dependent on who is the president. And

Speaker 13 I'm just not going to spend time trying to square the circle anymore.

Speaker 13 The Constitution says Donald Trump is disqualified from further office and trust, and it does not say that he is immune from prosecution.

Speaker 13 And the court finds the former point not to be in the Constitution, though you can read it, and the second point to be in the Constitution, though you can't.

Speaker 11 Fucking outrageous. Okay, let's go to the substat questions.
First, can Congress change the law to establish limitations that the Supreme Court doesn't create?

Speaker 11 Is there anything that Congress, I mean, it's a Republican House right now, so, but hypothetically, is there anything that Congress could do to deal with this?

Speaker 13 The answer is no. If there's a presidential immunity that's found in the Constitution, the president is immune and Congress cannot remove that immunity.

Speaker 11 Aaron Powell, related to that, then? And you mentioned earlier that the likelihood of a president getting impeached and convicted in this political environment seems to be basically zero.

Speaker 11 But hypothetically speaking, if Congress impeached and convicted, does that open up prosecution for all acts covered by immunity?

Speaker 13 Apparently not.

Speaker 13 And again, this is notwithstanding what the Constitution appears to say in the impeachment judgment clause, which is that I don't have the clause right in front of me, but that the president shall be liable post-conviction in impeachment to prosecution in the ordinary course of law, right?

Speaker 13 It's something that's very close to the language.

Speaker 13 And notwithstanding that language, so Trump's argument was he can be prosecuted for anything that he was convicted of in impeachment.

Speaker 13 But the court's argument is, no, you can impeach him and remove him, and you can still prosecute him, but you can't prosecute him for the official acts subject to the caveats about that.

Speaker 11 It's just, I just, I'm sorry, I just have to laugh just thinking about

Speaker 11 macabre laughter is the only thing that you can do in these situations, just thinking about fucking Mitch McConnell, you know, talking about how he was not going to convict Trump

Speaker 11 because the law was going to take care of it. And now we have the conservatives, the Supreme Court saying that the law can't take care of it.

Speaker 13 You know, it's just you can't impeach him because he's out of office and the law should take care of it in criminal prosecution.

Speaker 13 And you can't prosecute him because of immunity, or at least there are serious limits on your ability to prosecute him.

Speaker 11 It's just Calvin Ball. Did you ever read Calvin and Hobbes? It's just Calvin Ball all the way down.
Calvin just gets to change the rules so that he wins no matter what happens.

Speaker 13 But you're allowed to declare, you know, Hillary Clinton a criminal by pointing your finger at her, right? Lock her up. Yeah.

Speaker 11 All right. Here's a couple more subsequents.
Can King Biden do anything now to stave this off and help stop King Trump? There's some people that want you to give Biden some Machiavellian ideas.

Speaker 13 Well, I mean, he basically announced last night that he wasn't going to do that. He said in the speech, I will respect the limits of the presidency.

Speaker 13 Some of us don't think that should be a voluntary thing. So the answer is he won't, nor would I urge the president to behave like a dictator.
I would urge him to behave like a candidate. Same.

Speaker 11 That's exactly what I am.

Speaker 11 And I continue to have nothing but respect for Joe Biden and the way that he's handled himself in the face of all these attacks on his family and extrajudicial efforts by his opponent.

Speaker 11 And by continuing to abide by the norms, it is admirable. But he also needs to take seriously the threat.
And that reflects on his candidacy and the choice that's coming up. Okay.

Speaker 11 Why did the court feel like they had to rule on this so expansively when there's never been a problem of a president being pursued for official acts in the past?

Speaker 13 I think that's a profound question, and the answer is completely unintelligible to me, which is one of the reasons that I did not see this opinion coming.

Speaker 13 Despite the oral argument, this opinion is kind of like if you take all the worst questions, the most suggestively bad questions that every justice asked, that's this opinion. And

Speaker 13 I really did not believe that was going to happen. The reason is exactly the rationale behind the question, that there was no reason to do this.

Speaker 11 The last one, and this is not the last one, we have many, many great questions from you. We have great Bulwark Plus subscribers, but I did my best to pick out ones that we could do quickly.

Speaker 11 But the self-pardon issue, which we've mentioned a couple of times on past episodes, but now this question is, if if a future President Trump committed crimes that were clearly unofficial acts, couldn't he just self-pardon since pardons are official acts and nobody would have standing to bring up that challenge?

Speaker 13 So, look, I have always taken the view

Speaker 11 that

Speaker 13 the court would never tolerate a self-pardon.

Speaker 11 I will not say that today.

Speaker 13 And yes, the consequence of a self-pardon, it would be hard to review as a general matter.

Speaker 13 The only party withstanding to challenge it would be the Justice Department in the next administration could try to bring a case. You plead the pardon.

Speaker 13 The Justice Department contends the pardon is invalid.

Speaker 13 The problem in this situation is that if Trump gets elected and he makes his case go away and he would probably do it administratively, not by self-pardon, then the case is over.

Speaker 13 I think you should all just get used to the idea that if Trump gets elected, these cases are going away. By one means or another, they're going to disappear.
But yeah, we have a question now.

Speaker 13 A lot of the underlying conduct can't be prosecuted, and some of it can.

Speaker 13 And there's an open question about whether the president can pardon himself for it.

Speaker 11 Okay, I said that was the last question, but we have a little breaking news item here.

Speaker 11 The Manhattan DA's office said Tuesday it would not oppose Trump's request to file a motion arguing his conviction should be tossed, a move that will almost certainly delay Trump's sentencing.

Speaker 11 This guy's the luckiest son of a bitch in the world. I don't know if you have anything on that, but.

Speaker 13 So I'm not sure why it would delay his sentencing. Maybe it will.

Speaker 13 As I say, I don't think that motion is going to be particularly strong. So maybe it delays delays it by a couple of weeks or so.
But I do think Trump is going to proceed to sentencing.

Speaker 11 Ben Wittis, thank you.

Speaker 11 What a pleasant report that was from the hand.

Speaker 13 So tell me,

Speaker 13 is

Speaker 13 your world the political world or my world, the legal accountability world, which is darker?

Speaker 11 I think it's a really close call and just something that I'm going to have to marinate on between now and our next get-together before I can give an official

Speaker 13 of the two.

Speaker 11 The merger

Speaker 13 where they crash into each other is really dark.

Speaker 11 Creating one of these horrible monsters, like from Transformers or He-Man, or something that combines like the two evil powers into one super monster. Anyway, Ben Wittis, thank you very much.

Speaker 11 Okay, up next, I'm gonna give a very brief update on the campaign side, and then we're gonna have Steve Shepard. Stick around.

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Speaker 11 All right, so we're going to get to Steve Shepherd here. I want this to be an informational episode, you know, both about the court and about what a broker convention could look like tomorrow.

Speaker 11 You know, we're going to get more into the implications, but just to lay the groundwork for why I think this is a worthwhile conversation to keep having.

Speaker 11 As I mentioned with Ben, I think there are legitimate questions about why Joe Biden has not been out more, why he's not taking any questions. He's not done a press conference.

Speaker 11 He's not done anything to assuage concerns about the debate besides teleprompter speeches. That is totally unusual.
And so I think that leaves open questions about what's to come.

Speaker 11 I think another thing that leaves open questions is some big-name Democrats are starting to speak out a little bit. Jamie Raskin did.

Speaker 11 Senator Peter Welsh said he criticizes the campaign for the dismissive attitude towards people raising questions.

Speaker 11 Senator out of Vermont, Tim Ryan, former congressman and former Ohio Senate candidate, endorsed Kamala Harris.

Speaker 11 Then we have Senator Sheldon Whitehouse, Democrat out of Rhode Island, said that he wants reassurances after the debate that the president and his team are being candid with us about his condition, that this was a real anomaly, not just the way he is these days.

Speaker 11 That's a pretty serious comment. Another thing I've been hearing is that there haven't been a lot of private conversations between Joe Biden and leading Democrats, like you would think.

Speaker 11 Democratic House member Mike Quigley said Biden has to be honest with himself about whether he should be the party's nominee. And also, as we're taping this, we have breaking news.

Speaker 11 The first Democratic-elected official to call for Joe Biden to drop out is a House member, Lloyd Doggett, out of Austin.

Speaker 11 He says that President Biden has continued to run substantially behind Democratic senators in key states, and he trails Donald Trump. I'd hope the debate would provide some momentum to change it.

Speaker 11 It did not. Instead of reassuring voters, the president failed to effectively defend his many accomplishments and expose Trump's many lies.

Speaker 11 So Lloyd Doggett, the first Democrat to call for President Biden to drop. So these are elected Democrats that are starting to speak out.

Speaker 11 And then as far as the polls are concerned, and there's a Pennsylvania poll yesterday that showed Biden losing to Trump by four on the same poll.

Speaker 11 Bob Casey, the Democratic senator, was winning by four, an eight-point gap. In New Hampshire, a state President Biden won with 52% of the vote last time.

Speaker 11 Poll showed him losing by two points, 44 to 42, a 10-point drop. And then I don't really love the Harvard Harris poll because Mark Penn does it and he's a hack, but it has Trump up by six.

Speaker 11 So that context, I think, reflects the fact that there remain very real real concerns.

Speaker 11 If we want to beat Donald Trump and deal with the threats that Ben Wittis just laid out, there has to be a change of course, maybe with Joe Biden, maybe without Joe Biden.

Speaker 11 And so I want the next conversation to talk about what it would look like if there was a move to a different candidate.

Speaker 11 And with that, I'm here with Steve Shepard, an old friend, a fellow GW Hoop Super fan. It's been a rough decade for us, senior campaigns and elections editor at Politico.

Speaker 11 Also, he's their chief polling analyst. We're not going to be talking Atlantic 10 basketball today, unfortunately, Steve.

Speaker 12 Actually, that might be fortunate, given, like you said, the sad state of affairs over the last eight years or so.

Speaker 11 I mean, I don't know. The state of affairs for GW basketball has been bad, but is it as bad as the Biden campaign's state of affairs? That's, I guess, that's a close call these days.

Speaker 11 So, I wanted to talk to you because, you know, these discussions, we've been having these discussions in the bulwark. Okay, if Joe Biden can't do it, then what? You know, these if-then conversations.

Speaker 11 And some listeners, some people have wanted to hear like the practical, what this looks like, you know, rather than just sort of wish casting and fantasizing.

Speaker 11 So I wanted to talk to you about this because you've been covering conventions and delegates and politics, campaigns for Politico.

Speaker 11 And I think we're out with the first story about like what would happen if like literally before the debate was even over, it felt like your story was out. So

Speaker 11 I figure you could get our folks up to speed. Does that sound good?

Speaker 12 Yeah, no, that sounds great. And, you know, I think for a lot of folks, certainly was the case here in our newsroom.

Speaker 12 I'm in a back office here in the political newsroom, but we were all here last Thursday night.

Speaker 12 And about halfway through the debate, when we had that first commercial break, that's when, you know, all of our editors gathered and sort of decided that, you know, people might be interested in what the mechanics are at this stage when all the primaries are over and all the delegates have been awarded and pledged.

Speaker 12 How does it work if the presumptive nominee didn't want to be the actual nominee?

Speaker 11 Exactly. So I want to just start with that with the basics.

Speaker 11 So Jen Saki was on and having a heated disagreement with my colleague Bill Crystal on this week on Sunday, where her side of this case was that it would be very, very messy.

Speaker 11 And Bill was making the case that was like, maybe not necessarily. I sort of lean towards the Bill side of that argument, but I wanted to play it out.

Speaker 11 So if we go through the basics here, we should just start with the first assumption is that this means that Joe Biden decides that he's going to back out and give his delegates up, right?

Speaker 11 Because there's not going to be like a challenge to Joe Biden on the floor, right?

Speaker 12 No, keep in mind Joe Biden won about 95% of the delegates during the Democratic primary season uncommitted got a few you may recall Jason Palmer winning the caucuses in American Samoa he got a couple but Joe Biden the vast vast vast majority of delegates are not only pledged to Joe Biden but it's been the Biden campaign and the state parties who have selected the individuals who will actually serve as these delegates in the roll call vote.

Speaker 12 And, you know, a lot of times these folks are selected for their loyalty to the party and their loyalty, you know, in the case of the Biden campaign to the president.

Speaker 12 So the idea that this could happen

Speaker 12 without President Biden agreeing to forego the nomination, it's pretty fanciful.

Speaker 11 Who would have thought Jason Palmer, potential power broker with his eight delegates, whatever he has.

Speaker 11 All right, so let's say then that Joe Biden makes this choice of his own volition. Then the next question is, is it an an open convention? Can he just pass the delegates over to Kamala?

Speaker 11 How would that work? Like, let's say they tried to do it clean. Could he just pass his delegates to Kamala? Or could he pass his delegates to another person?

Speaker 12 Well, first, let's define the terms here. When I talk about delegates being pledged, there is a key distinction between the way Democrats do their convention and the way Republicans do theirs.

Speaker 12 On the Republican side, the delegates are not pledged. They're bound.

Speaker 12 And that means they're required to vote for the candidate to whom they're bound via the results of the primaries or caucuses in their state or their congressional district.

Speaker 12 And if they try to go rogue and vote for somebody else, the votes don't count.

Speaker 12 On the Democratic side, delegates are supposed to, according to the DNC's bylaws, are supposed to, in good conscience, follow the instructions of their pledging, but they're not required to.

Speaker 12 Again, the kind of mass revolt that Joe Biden dragged kicking and screaming, you would need a majority roughly of those delegates to vote against him.

Speaker 13 It's not going to happen.

Speaker 12 However, you know, these are folks, there is no instruction if the candidate to whom they're pledged is not placed in nomination.

Speaker 11 So Joe Biden endorses somebody. It's just, it's like, that's Joe Biden's endorsement.
I mean,

Speaker 11 but maybe people could say, okay, I don't really, if you've docked out, I don't care about that. Someone else throws their hat in the ring.

Speaker 12 They could say that. However, again, these are people who've been selected for their party loyalty, for their loyalty to the president.

Speaker 12 And so you would need, of those roughly 3,900 delegates who have been pledged to Joe Biden, you would need about 1,900 to 2,000 of them to vote for a candidate other than presumably he would endorse Kamala Harris under

Speaker 12 basically any possibility he would endorse Kamala Harris. And so you would need a majority of them essentially to shun his endorsement and vote for someone else.

Speaker 12 And if you got that on the first ballot, then you would have what we would consider sort of a brokered convention.

Speaker 12 The subsequent ballots to try to identify a nominee, you would bring back, and we can talk about this a little bit, the superdelegates, folks who were around in 2016 and in years before, will remember that concept.

Speaker 12 There have been some reforms to the DNC process since 2016 that has taken away these people's vote in the first round of balloting.

Speaker 12 But if no one wins a majority, they get to vote for whomever they want on the second ballot and could be potentially decisive if we ever got to that point.

Speaker 11 And for folks who aren't getting a little gray hairs on their temples like you and me and don't remember the great superdelegate debate of 2016, remind folks who the superdelegates are.

Speaker 12 So they're elected officials within the party, members of Congress, governors. They are members of the Democratic National Committee.

Speaker 12 They are former elected officials, former presidents, former vice presidents, former party leaders, former congressional leaders.

Speaker 11 Luminaries. It's luminaries.
So if it goes to a second ballot, the luminaries, it becomes not just about the real American delegates, but it becomes the

Speaker 11 superdelegates as well.

Speaker 13 Right.

Speaker 12 And there are about 4,000 pledged delegates. And then there's another,

Speaker 12 there's no like publicized list of these people, but most estimates have it around 700 or 800 of these superdelegates.

Speaker 12 And so, you know, they they alone can't decide the nominee, but they can certainly be decisive in a close vote if we ever got to that point.

Speaker 11 So I'm with you.

Speaker 11 I think that kind of dealing with anything besides Joe Biden, I mean, Joe Biden leaving it all might be fanciful, but if you were to leave Joe Biden doing anything besides endorsing Kamala seems far-fetched to me.

Speaker 11 But let's say that he doesn't. Let's say that Joe Biden says he's going to

Speaker 11 drop out of the race and that he thinks that there should be an open conversation among the delegates about who should replace him.

Speaker 11 Now, I've seen some reporting that in that case, Kamala still gets Joe Biden's operation, which would include the money, the staff.

Speaker 11 Is that right? And Kamala is the only person that could get access to that.

Speaker 12 Yes. You know, the federal election commission has pretty strict limits over how much money one candidate for federal office can give to another so we had

Speaker 12 just today

Speaker 12 the biden campaign assert with the democratic national committee included so this is an aggregate number that dnc money would be available for any future candidate who matter no matter who it is but

Speaker 12 There's a lot of money in Joe Biden's presidential campaign. There's a lot of money in his joint fundraising committee.

Speaker 12 That it's over $200 million as of the end of June, according to the campaign's announcement just shortly after the quarter ended.

Speaker 12 There are limits on how much one federal candidate can donate to another, but Kamala Harris is on the paperwork as the running mate and as the vice presidential candidate for the Biden campaign.

Speaker 12 And so she could get all of it. Other candidates, the amount that you could transfer would be a very, very, very, very tiny fraction of that.

Speaker 12 So they would essentially be starting from scratch, unless they were an existing candidate for federal office that maybe had some money left over, like a Senate candidate who might have a few million in their account.

Speaker 12 Whoever it is would essentially be starting from scratch when it comes to those hard dollars that the candidates will use to...

Speaker 12 largely on television advertising, which they can buy at a much cheaper rate than the outside spending.

Speaker 12 It would be very difficult for outside groups to sort of make up that difference because they pay five, 10 times more for the same TV ad that you might see on TV.

Speaker 12 If it's from a super PAC, they're paying a lot more to show that to you than if it's a candidate themselves.

Speaker 11 So this is the one area when I've been hearing feedback from people. It's like, Tim, we can't do this.
The convention chaos is a problem. The ballot is a problem.
Maybe I want to get to that next.

Speaker 11 The money is a problem. The money is the one area that I'm like a little, I'm not that concerned about that.
I'm not impressed by that as a potential problem.

Speaker 11 And like I said, I think Kamala is likely the choice anyway. And so she would be able to have, you know, the entire war chest.

Speaker 11 But if somehow they came to a different type of candidate and there would just be so much interest and and so much excitement. I like the ability to raise money.

Speaker 11 And we've seen from Democratic candidates, you know, there'd be a week or two lag, but most of that week or two, there'd be wall-to-wall coverage of this insane, unprecedented thing happening that everybody would be seeing for free anyway.

Speaker 11 So I don't know.

Speaker 11 Do you think I'm being a little Pollyanna about that?

Speaker 15 No,

Speaker 12 I don't necessarily. I think it's so unprecedented that, you know, I'd hate to be the person in charge of the Act Blue servers if that ever came to pass because

Speaker 12 we do know and have seen it since 2017.

Speaker 12 The fear that a lot of small dollar or online Democratic donors have when it comes to Donald Trump, both as president or as a presidential candidate, has been an extraordinary motivator for Democratic fundraising.

Speaker 12 That's been abundantly clear from January 20th, 2017 until now.

Speaker 12 We've never had this kind of scenario where everything would be sort of spun up right from scratch.

Speaker 12 And it seems clear to me that even as there's been some fatigue among long-standing office holders and the money they're able to bring in now compared to what they were able to bring in in, say, 2018 or 2019, the reality is that

Speaker 12 everyone whoever gave on Act Blue would be coming to whoever this new person is, as long as it was someone who excited them and excited the party. I do think that's true.

Speaker 12 I think it would break a lot of records for fundraising in that moment. But also, remember, the person would be starting from zero.

Speaker 12 And so you'd have to even remotely be competitive with the Trump campaign, which is actually doing a much better job of fundraising over the past couple of months than

Speaker 12 before and seems to actually be able to raise money that doesn't go entirely to legal fees now.

Speaker 11 I'm of the view that TV ads and presidential campaigns have pretty minimal impact compared to other races at this point.

Speaker 11 I mean, Joe Biden has outspent Donald Trump on the airwaves by lots and lots already to basically little effect, hopefully little effect, actually, because if it's been to significant effect, that means he's losing by even more without the ad advantage.

Speaker 11 So, I want to get to the ballot part, but just really quick, going back to this convention chaos question.

Speaker 11 So,

Speaker 11 if

Speaker 11 Joe Biden drops out, if he endorses Kamala, I assume it'll be pretty clean. But going back to your question, let's say other people throw their hat in the ring.

Speaker 11 I mean, have you had conversations about what that looks like? Like, could they, I don't know, like have a debate, have a forum?

Speaker 11 You know, did they go to these states and meet with the convention delegates?

Speaker 11 I mean, I guess there's, you can't really do reporting on this because if it would leak if Gretchen Whitmer said that she was already planning how she was going to go meet with the Texas delegates.

Speaker 11 But like, what do you imagine that could look like?

Speaker 12 Well, I imagine it would take place under a very compressed timeline.

Speaker 12 We're all thinking about the convention as this thing in Chicago in late August, but the reality is the Democrats have said they're going to use a virtual roll call to choose their nominee very likely sometime this month in the back half of July.

Speaker 12 That roll call could be as early as Bloomberg's reported July 21st. I'd heard maybe something the week after instead, but we're talking about, you know, three, four weeks tops from now.

Speaker 12 And it would happen all virtually, which would kind of, for some Democrats, worried about the like shades of 68 or, you know, convention floor chaos.

Speaker 12 either on the floor or outside the convention hall to use the 1968 example.

Speaker 12 I'm not sure that that would come to pass because theoretically, under this scenario, the nominee would be chosen in this virtual roll call, even if it got messy, even if it required multiple ballots.

Speaker 12 And then the convention the following month could still be this television show that is a big show of unity, the whole party coming together to the extent the Democratic Party can ever come together.

Speaker 12 That would still be the case. In terms of what the three to four week stretch would look like, you know, I think

Speaker 12 certainly you would see the veil lifted on what some of these other folks might be doing. Right now, I personally think what they're doing is mostly about positioning for 2028.

Speaker 12 You want to be seen as a good soldier for the party when the party needs you most, showing up, not shoving the old guy out the door. And if the old guy decided he wanted to leave,

Speaker 12 there you are in addition to that. So it kind of serves two purposes to me, probably 95% about 2028 and 5% about the break glass in case of emergency scenario.

Speaker 11 Yeah, no, the Zoom roll call has been really lost in a lot of these conversations as one of my favorite listeners keeps texting me, because especially in the Kamala scenario, like in theory, there could be a clean pass off,

Speaker 11 you know, where the delegates choose Kamala by essentially acclamation in this same Zoom, you know, convention roll call that they were planning on having anyway because of the ballots.

Speaker 11 And, you know, like you said, like that, that would eliminate all of the messiness. Now, who knows, right?

Speaker 11 Like once you open a Pandora's box like this, you know, somebody else might say, well, wait a minute, I want to challenge. And then, how do you do a Zoom ballot, you know,

Speaker 11 where there's multiple candidates, right? Like, you know, it could also not, I think, is an important point here, particularly if it's the vice president.

Speaker 12 Yeah. And the typical sort of like movement of candidates from hotel suite to hotel suite to woo the various state delegations that, you know, we've all read about.

Speaker 12 Certainly, you know, you and I are not old enough to have experience.

Speaker 12 The making of the president, 1972, you know, like all of that stuff, you know, that would take place via phone and Zoom. And it'd be very,

Speaker 12 very sort of 2020s era for sure.

Speaker 11 Okay, so then let's talk about this, the ballot side of things.

Speaker 11 So the reason why they're doing the Zoom roll call is because of the Ohio state law, I guess, about when the candidates need to file by, which is before when the actual DNC convention is.

Speaker 11 The Democrats aren't going to win Ohio. So in some ways, this is kind of a meaningless point if they do have to extend it past.
So my question is, what about these other states?

Speaker 11 There's been some discussion that Heritage is going to sue and thinks that they might have standing.

Speaker 11 And I think it was Nevada and Wisconsin, maybe one other of the swing states that might actually matter. What's your sense for the ballot side of things?

Speaker 12 Well, look, I think that's also one reason why sort of time is of the essence because, you know, we have like in-person early voting starting in a lot of these places in

Speaker 12 early to mid-September, which seems sort of crazy early, especially if there is a new candidate who needs to introduce themselves to the broader electorate. I think this is something I'm sure that

Speaker 12 the Democratic Party has many lawyers who will make sure that before they were to ever approach this scenario, that they would have all the boxes checked in all the states that matter.

Speaker 12 You know, Ohio, you mentioned, yes, Joe Biden or whoever the Democratic nominee is likely to be is not going to win Ohio.

Speaker 12 However, you know, Democrats very much need Sherrod Brown to win his Senate race.

Speaker 11 You do worry about tamped down enthusiasm, I guess, if you're not on the ballot.

Speaker 12 Yeah, and then there's Marcy Kaptur, Amelia Sykes,

Speaker 12 Greg Landsman, you know, some of the competitive congressional races. And they want to keep Republicans from sort of that filibuster.
proof majority, super majority in the state legislature.

Speaker 12 So, you know, there's more to worry about there.

Speaker 12 Look, you know, I think if this were to ever come to happen short of, you know, an incapacitation scenario, I'm pretty sure they would have all the legal boxes checked before they tried it.

Speaker 11 All right. Last question is on the vice president side of this, because I haven't seen a lot of discussion about that.
So let's say the clean option happens and Joe Biden, you know,

Speaker 13 clean.

Speaker 11 We're in really strange times, relatively clean, given the situation, where Joe Biden chooses to leave the race, endorses Kamala Harris. She wins on the first ballot.

Speaker 11 Can she then then pick her vice president, or are we in a 1972 situation where multiple people put their hat in the ring and the delegates pick the vice president?

Speaker 12 Ultimately, the delegates pick the nominee, the delegates pick everybody. Obviously, you know, in modern times, the delegates have deferred to the nominee's choice of running mate.

Speaker 12 You know, there's a couple different scenarios here. Does Kamala Harris keep nearly all of the Biden delegates because they're loyal and

Speaker 12 they go along with whomever she wants to choose, probably you know somebody among the group of folks that we're talking about in this sort of shadow primary or you know is it a closer race is it you know she's only getting between 50 and 60 percent of the delegates and some of those delegates would seek as you know negotiating tactic or negotiating position a specific running mate that you know maybe you could Maybe you could grab the Michigan delegation by promising to choose Gretchen Whitmer as your running mate, or maybe you could grab the Kentucky delegation by promising to choose Andy Bashir.

Speaker 12 The one person it would kind of take off the table would be Gavin Newsom, because, of course, then

Speaker 12 a Harris-Newsom ticket would make Democrats ineligible to win the 54 electoral votes from California.

Speaker 12 And there's just very little way to make up that kind of math when it comes to the Electoral College majority.

Speaker 12 So, you know, I think that that could be someplace where the delegates were to have some sway. Ultimately, you know, unless it's a

Speaker 12 super, super contested convention for the actual presidential nominee, it's difficult to imagine a wide open race where the delegates are choosing and ignoring whoever the presidential nominee's preferred running mate is and just choosing someone on their own.

Speaker 11 Well, I like that Bashir idea.

Speaker 11 I'm having lots of conversations with Democrats. Any Democrat that'll talk to me, I accept their phone calls these days, you know, but somebody suggested a little Roy Cooper.

Speaker 11 We could use somebody with a southern accent, a good old boy on the ticket. I don't know.
You know, maybe the North Carolina delegation could help us with that.

Speaker 11 Anyway, Steve Shepard, this has been super helpful. Thank you for the briefing.
Keep up the good work over there. We'll talk to you soon, brother.
Raise high.

Speaker 12 You got it, Tim. Good to see you.

Speaker 11 All right. Thanks to Steve Shepard.
Thank you to Ben Wittis. It was a pretty depressing show.

Speaker 11 I don't know that tomorrow's going to be a ton better, but there will at least be some laughs because I'll have your friend and mine, Crooked Media's John, love it.

Speaker 11 One problem, despite the fact that John was recently on Survivor, he still needs his beauty rest. So, the show might be out a little bit later in the afternoon.

Speaker 11 That's all right, it's a long weekend. And so, stick around, refresh your little podcast app.
You'll see me and John tomorrow, late afternoon. Peace.

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Speaker 11 The Bullworth Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.

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