Bill Kristol and Ben Wittes: The Split-Screen Reality

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Hey, JVL, it's been months since I've seen you without a screen intermediary. I'm just dying to lick your face and put my hands on you.
And so are you going to come do some public events with us and be among the people? Human contact? Yes. Yes, I'm going to do it.
I'm coming out of the house. I'm leaving the basement for two days.
May 1st in Philadelphia and May 15th in Washington, D.C. This will be the first Bork event where we encourage jeering because it's Philly, people, so jeer us.
Yes. May 1st.
If we have a bad show, I expect the Philly crowd to boo us.

Please.

Or anyway, even if it's a good show, boo us anyway.

We deserve it.

May 1st in Philly, May 15th, 6th and I, Synagogue in Washington, D.C.

Come hang out.

Go to thebullwark.com slash events to get your tickets.

Thebullwark.com slash events.

And JVL, I just can't wait to get all up on you.

Gah! to get all up on you. Hello and welcome to the Bulldog Podcast.
I'm Tim Miller. It's Monday, April 15th.
This is a huge, massive news day. So we're doing three segments.
We'll get to the historic first trial of Donald Trump, which is underway as I speak with Ben Wittes in segment three. So stick around for that.
But first, Bill Kristol, thanks for being with me. A lot happening.
I think we should, of course, start with the Iran attack on Israel over the weekend. It was a successful defense of just an absolutely massive missile attack.
There were some out there that were saying that it was, you know, kind of they were trying to fail, but that's a crazy statement, given the degree and the intensity of the amount of weapons that were shot at Israel from Iran. U.S., of course, played a key role in helping with that defense and Iron Dome, etc.
So talk about the policy implications of that attack. Yeah, Iran wanted to do damage to Israel.
Their package of cruise missiles and drones that they launch actually is very much like what Russia has been launching against Ukraine. It has worked, unfortunately, against Ukraine as they don't have the air defense capabilities that Israel does and that we and other allies helped provide on Saturday night, which makes one wonder maybe we should do some of that for Ukraine as well.
But they wanted to do damage. They failed to do damage.
We did a good job of assembling the military assets to stop them from doing damage. Did a good job diplomatically, the Biden administration, I think, in getting other countries to help.
But we stopped the damage. But we haven't made Iran pay a price yet.
Yeah, I mean, you got into that a little bit in the newsletter with Biden and Iran. I mean, I'm obviously sympathetic to the notion that escalation here, going into a broader regional war is probably not advisable.
But just recognizing the malign influence of Iran, this should be a wake-up call to some who've tried to minimize that. Yeah, very much so.
It's funny, there's a CENTCOM tweet or statement, actually, that they tweeted out last night that was much more aggressive than President Biden himself. Maybe that's appropriate, but really did refer to the sort of ongoing malign influence of Iran and made it seem so that's something we still have to deal with and maybe have to set back, not just kind of parry each time they try to do something.
And I think there's a broader point, which Elliot Cohen made in the fine article in The Atlantic, which quoted in the newsletter as well.

Our friend Elliot Cohen, who's co-host of the very important podcast, not quite as important as yours, Tim, but doesn't have quite as many viewers, but very high quality. Much higher quality viewers, shield of the republic.
Do check that out for all your foreign policy needs. No, it's really great, Ian, Eric Edelman.
And Elliot makes the point that we also need to think about the fact that there really is an alliance or coalition, maybe is a better word, of Iran, Russia, and China, North Korea too, Syria, and other actors. And they are helping each other.
And they're all being more aggressive. Putin invaded Ukraine to make the most obvious point.
Hamas and now Iran attacking Israel. China really not getting nearly as much publicity, but really aggressive actions against Philippines as well as other things.
And so they've all decided apparently that their aggression, it's checked, that they paid a price for it, certainly Putin has, but they're not being deterred enough. And deterrence requires not just stopping people from doing things that making sure their aggression doesn't work, but also making them pay a price for their aggression.
Yeah. And the Cohen article, folks want to read it in the Atlantic is called the coalition of the malevolent.
I pulled out one quote from that that struck me, which was those four countries you mentioned are united by a growing belief that their moment is coming when a divided and indecisive West richer, but flabbier will not fight. And then he goes on, American leaders will err if they attempt to compartmentalize each of these challenges today, Ukraine, Chinese aggression, Middle East conflict.
It feels right. And there's a much more brain dead version of this argument, which is being made by the Lindsey Graham's of the world on the right, that it's like, Joe Biden's weakness is creating this and that these actions are happening because, they know, they don't think that America will or that they think they can push this old president around, which I mean, is obviously stupid, given the fact that there's a lot happening in the world that doesn't have to do with the American president.
I think Nick Grossman, who writes for the blog sometimes wrote that like the world stage is not a reality show where every action and reaction is a result result of what the main character of the president of the united states wants but you know i mean biden has acted i think in each of these instances to want to help ukraine to defend israel successfully to make sure we are defending israel successfully over the weekend etc but the cohen criticism i think is more valid that maybe there isn't a isn't a recognition of the seriousness of the moment and the broad nature of the threats. Or if there's a recognition and not quite enough will and sort of a real thorough attempt to kind of reorganize the U.S.
government and reorganize policies kind of across the board to deal with these threats, which sort of he's dealing with it in a competent and responsible way. I mean, I'd say B, B+, whatever, you know, sober and serious way.
Certainly, my cat Lindsey Graham has a lot of nerve, right? I mean, his party is basically against dealing with these threats, at least in the case of Putin. And it stops really doing a huge amount of damage now for six months, not just damage to Ukraine, but across the board in terms of our credibility.
That damage so exceeds any evidence, any instance of Biden's weakness, you can't even compare the two. But having said that, given the fact that there is this genuine coalition acting against us and against our friends, I think Biden needs to sort of step it up one more notch and not just parry the threats, but really have more of a Truman-like strategy to kind of deal with this situation we'll now face for quite a while.
Thinking about the options we have here in the split screen, over the weekend, I was pretty struck that while Joe Biden was helping support Israel with CENTCOM in Israel and pushing back against these attacks from Iran, We had his opponent, Donald Trump, was at a campaign rally. We keep hearing from these national security conservatives that feel disappointed that Joe Biden isn't going full-throated in support of Israel, and so they can't support him because of that.
And so they just can't help it, Bill. They just can't help it.
The libs are thrusting them into Donald Trump's arms by doing anti-Semitic chants on college campuses. So I was interested by what happened to the Donald Trump rally this weekend.
Let's take a listen. And Pennsylvania energy is a big problem.
Janicide, Joe! Janicide, Joe! Janicide, Joe! Janicide, Joe! Janicide, Joe! Janicide, Joe! They're not wrong. I don't know if you heard that.
They're not wrong. They're not wrong.
They're not wrong. So there you go.
There's the campus left, river to the sea crowds, nickname for Joe Biden, appearing at a chant at the Donald Trump rally this weekend. Not exactly a McCain moment there from Donald Trump on stage.
Really extraordinary moment. Okay, so a bunch of idiots at the rally start to chant something that they understand to be anti-Biden.
Maybe they don't even know what it refers to or that it's anti anti-israel anti-semitic i'm gonna say i think a couple of them knew what it referred to at least a couple of them did yeah but anyway the story is trump this has not gotten enough that donald trump himself personally reacting to it said they're not wrong and he said it twice right two or three times so i mean that kind of amazing. It shows how utterly superficial any position he takes that happens to coincide with that of national security hawks or pro-Israel people or whatever, how utterly superficial that coincidence is.
And how deep down there's nothing there. There's no ground for it.
And if anything, I'd say the ground goes the other way with Trump, with America first. Eric Edelman, who I mentioned earlier, Elliot Cohen's co-host, has a longer article in a journal making the point that right-wing isolationism ultimately is not good for Israel.
Never has been, isn't going to be this time. America First is not pro-Israel, was not pro-Jewish in 1939, 1940.
He's not going to ultimately be pro-Israel this time. And so this notion that Trump would be doing better, I mean, maybe temporarily or accidentally, so to speak, but in terms of actually grounding serious support for Israel, as for other allies, there's just no comparison.
Again, I come back to that Trump. Trump said it himself.
This isn't just, you know, someone else said something and Trump didn't denounce it, which is the more normal situation we're in all the time, right? Or he had dinner with someone who had said something three months before that's really horrible. That's not good.
But here, Trump himself, what is it? They're not wrong. They're not wrong.
They're not wrong. He said over and over again, genocide, Joe.
And again, the thing that frustrates me about all this, we talked about this with Jonathan Chait, but it's just worth continuing to drive home, is like the political implications of this, where Biden finds himself stuck, where he's got this progressive left that's very unhappy with him. Sarah did a focus group round on this on the focus group podcast over the weekend.
It's worth listening to if you want to hear the progressive left's thoughts on this in their own words. But a lot of them that are unhappy with him because of his actions that have been largely in support of Israel, though at times he's spoken, you know, tried to tamp BB's worst excesses down and nudge him the right direction.
But the left doesn't feel like that's been enough. And yet, the pro-Israel side has said that they're unhappy with Biden for not giving a total blank check to Bibi.
And so instead, they're more leaning towards Trump. And their rationale for this that they've given time and again is, well, it's just Biden is trying to appeal to Dearborn, Michigan or something.
You hear these things on Fox and on the Wall Street Journal ed board, and Biden is, well, it's just Biden is trying to, you know, appeal to Dearborn, Michigan, or something like you hear these things on Fox and on the Wall Street Journal ed board and Biden is softening. And it's like, the people that are that are protesting Israel, Israel's actions that are protesting the American administration, hate Joe Biden, they think he's committing a genocide, they hate him.
And many of them are happy to help elect Donald Trump to punish Joe Biden. And here we have at the Donald Trump rally, people echoing their attacks on the president, echoing their attacks on the president for being too strong with Israel.
It's a Donald Trump rally, and they are attacking Joe Biden for being too strong with Israel. You would think that would maybe sink in with some of the people in the Wall Street Journal crowd, but it doesn't really seem like it is.
And you got Tucker Carlson, some of the most influential people out there. And Tucker Carlson and Kenneth Owens echoing this.
They're saying Israel is committing genocide and Joe Biden is genocide Joe because he's defending Israel. And he's defending Israel and Israel is not committing genocide.
And Donald Trump endorsed the notion that Israel is committing genocide and Joe Biden is in supporting Israel is genocide, Joe. So, yes, maybe all of our pro-Israel friends could rethink their silly.
I mean, I would be a tick different from Biden on Israel. But the idea that that should drive them to Trump is really ridiculous.
All right. Two more things rapid fire.
Then we'll get to keep you around for Ben Wittes for segment two. We've got a New York Times-Siena poll out over the weekend, 46-45, a tick up for Biden, as he has basically coalesced a lot of the Democratic folks who were in these polls who were, I think, saying that they're undecided because of unhappiness with Biden over maybe Gaza or maybe inflation or some other issue.
So that is at least a marginal good sign that he's starting to coalesce his base here in the spring, which is something we expected. One sub point in that poll that jumped out to me, which you mentioned in your newsletter, I just do want to mention.
Among young voters, 18 to 29, they were asked if Donald Trump has ever said anything offensive. They said 23% of them said yes recently.
52% said yes, but not recently. And then the remaining said never.
Another striking example of how Trump is kind of benefiting from the news environment right now that people aren't. I mean, it was just what, last week you were on the podcast, we were talking about his racist immigration comments.
And he does offensive things all the time. Yeah, no, the poll's good news and it's moving in the right direction.
Biden's picked up just that poll, four points in about six weeks, which is very good. He's now four points behind where he was still in the 2020 vote, so that's not so good.
And he needs to pick up more, and they need to really make the case, obviously, to emphasize what Trump has been saying. I do think the abortion rights issue, and what it signifies more broadly, we've talked about this and written about it, too, I mean, a lot of the bulwark, but the degree to which it seems extreme, it seems, you know, just cruel and crazy.
And that that's what you get when you get Republican governance, Arizona being the latest example, but not the only example. I think the degree the Democrats can make that not just about one state and not even just about one issue, but about a whole mode of governance that you're going to get.
If you get Trump and a Republican Congress, you're going to get Arizona and you're going to get Texas and you're going to get every state that has the most irrational and draconian curtailment of freedom in this area and in other areas and in other areas. All right.
I would be remiss if we made it through segment one without listening to a friend of the podcast, Chris Zanuno. So just to sum up, you would support him for president even if he's convicted in classified documents.
You support him for president even though you believe he contributed to an insurrection. You support him for president even though you believe he's lying about the last election.
You support him for president even if he's convicted in the Manhattan case. I just want to say the answer to that is yes, correct? Yeah, me and 51% thanks for your time this morning no not right actually not 51 this is the key point not 51 of america well a trump's at 46 but most of the trump voters don't believe that this is not to you know defend the people in the mega cult who think that the deep state is out to get donald trump and he didn't do anything wrong.
But like, it's not 46% of America. It's a very small percentage of people who are college educated, who live on the coasts, who are political animals, who recognize that Donald Trump tried to overthrow the government, said as much, and yet still support him anyway, because of, you know, their irrational hatred of the left left or because they still want to be relevant or because they want to be invited to the lighthouse and they want to be commerce secretary or whatever.
It's a very small number of people who are that fucking craven. And Chris Sununu is at the top of that list.
So I don't know. Do you have any other thoughts about Chris Sununu, Bill Kristol? For governor, you should also rise above, you know, voters who don't pay attention to politics quite as much.
And he's a fancy kind of conservative governor of a well-educated state. He's probably read Edmund Burke on how leaders, you know, representatives should not just pander to their constituents.
He probably could quote that even maybe. As you say, he overstates the situation in terms of the public, but it's like, well, the public maybe is wrong.
So I'm entitled to be not just wrong, but utterly irresponsible. Yeah, but wrong and smug.
I'm entitled to be wrong and smug about it. Okay.
We'll be back on the other side. Bill, stick around and we'll bring in our friend Ben with us.
Looking to transform your business through better HR and payroll? Meet PayCore, the powerhouse solution that empowers leaders to drive results. From recruiting and development to payroll and analytics, PayCore connects you with the people, Bill Crystal and Ben Wittes, Editor-in-Chief of Lawfare, Senior Fellow at Brookings.
Hey, Ben. Hey, how are you? You're in a hammock.
Are you saying anything offensive in the hammock? I haven't said anything offensive recently, but if you go back a ways, there are a few offensive things. All right, let's see if we can change that uh here today uh me and ben are gonna get down with stormy that that came out wrong but you know we're gonna get down on the stormy trial here in a minute but first i wanted to have both you guys because i do think that the iran attack on israel put the situation ukraine in a little bit of a different perspective there's one tweet from Jay and Keeve that I wanted to just share and get your guys, both of your reaction to.
After seeing U.S. and British jets shoot down hundreds of Iranian missiles and drones last night, saving thousands of Israeli lives, everyone in Ukraine is saying the same thing.
The Russian military is weaker than Iran's. But not only will allies not shoot down Russian missiles, they won't even give us the jets to do it ourselves.
We even know where all Russia's bomber aircraft sit, but allies refuse to give us the tools to destroy them. Russia is completely destroying Ukraine.
It's only getting worse. Whose side is the US on? Pretty compelling from Jay and Ukraine, Ben.
First of all, I spent a lot of the weekend with Ukrainians, and that is a quite widespread sentiment. Not the whose side is the US on, but why not us? It's a little bit more plaintive and less aggressive than that, in my experience.
But there's this sense, look, Israel is not a NATO ally. It's actually very similarly situated to Ukraine in the U.S.
security constellation that is a extremely close non-ally partner, right? We don't have a treaty relationship with Israel. We have a highly developed military aid relationship and diplomatic relationship and And it's very fair for Ukrainians to say, hey, if the US has this capability, both to give the Israelis this capability, and a lot of that was done by the Israeli Air Force, which is a first rate air force, why can't the US supply the Ukrainians with that kind of capability? And to the extent the U.S.
did it itself, and the U.S. did a lot of it itself, why not do that here? And there are a lot of dead Ukrainians who would be alive today if they were Israeli.
Bill? Oh, that's well said. I mean, just three quick points, mostly echoing Ben, but I mean, one, it's just, it's so beyond disgraceful that Congress has sat on this aid package for six months.
There's so much blood on their, on their hands. It's not on Congress's hands.
It's on the Republicans in the House on their hands. Maybe that'll change this week.
But the damage that is done on the ground, as well as more broadly in terms of U.S. foreign policy is really, I think the greatest damage I know of any Congress doing in my memory over these six months.
Secondly, the Biden administration could have and should have done more in terms of providing weapons at different stages. And I think they've, as I say, they've done pretty well, but not enough, not enough.
And it became more obvious that it wasn't enough, and they still didn't really ratchet it up. And third, I've always thought, I mean, there was talk very early on about no-fly zone in Ukraine.
It's really worth looking at.

I mean, we do have NATO in the U.S. We did it in the Balkans.
We didn't have a treaty relationship there against Milosevic. We've done it in effect with Israel.
And I think that's a strong case for thinking about expanding the U.S. and NATO role in terms of stopping Russia from pummeling Ukraine from the air.
It's pretty compelling on all sides for me. from put a finer point on it, on the Republican side, that I think it's worth just spending a little time stewing on.
From writes, Ukrainians ask, why won't the Americans help shoot down the missiles barraging us? The actual answer is that the Americans who are denying Ukraine aid is a faction in Congress that takes orders from an ex-president who wants Russia to win. Pretty blunt, but like, show me the lie, Ben Wittes.
No, there's no lie there. And Trump, you know, when he's being candid, is actually pretty candid about it, right? His idea of a peace plan here is to let the Russians have a big chunk of Ukraine.
And that's his, you know, I'll fix this in 24 hours. The good news is that everybody knows who spends the time to understand the first thing about US politics.
Everybody knows where this is coming from. And if you believe in a, whether you call it liberal internationalism or neoconservatism

or, you know, a muscular foreign policy or the post-war consensus, if you believe in any of that stuff, one party today represents it and the other party does not. And it's the flip side of what it used to be.
On the other hand, the bad news is that there is no earthly reason for the average Ukrainian to spend the time to understand this distinction. And what they understand is that the United States is abandoning them.
And in exactly, by the way, the same way that Slovakia just elected a pro-Putin president and Hungary has a pro-Putin president, they see one by one the countries turning against them and turning toward Russia, and we are among those. And the fact that the overwhelming majority of Americans don't feel that way, the administration remains committed with all of its flaws, is actually a nuance that is quite lost on a lot of people.
And you can't blame them. They've got missiles coming at their house.
Why should they distinguish between the MAGA wing of the Republican Party, the mainstream wing, and Democrats? Yeah. Bill, we talked about this a little bit just with regards to the genocide, Joe, but to put a finer point on it, given the state of play out there, how are the Tom Cottons of the world, how are the Republican military hawks, like, rationalized and continued support for Trump? Because I can understand criticizing Joe Biden from those groups, but then taking the next step to saying that Trump is going to be better when you're staring down somebody that is, you know, essentially Putin's best asset in the West and the war in Ukraine.

He's going along with the genocide Joe chance. He was happy to insult BB.
He's totally who the hell knows what he would actually do in this situation. How are these guys rationalizing this just given this the gross irresponsibility of Trump across the board and maybe the active support of Putin in one of the theaters here.
It occurs to me that the interview with your friend, Kristen Unu, that you played the clip of and referred to, happened after the genocide Joe chants, which, if I'm not mistaken, was Saturday night, right? And the interview was Sunday morning. Seems not to have startled, you know, moved him at all.
And I bet it won't move anyone. So, yeah, how do they rationalize rationalize it i don't know they've got to keep those horrible campus liberals out of the white house even though trump is now the one who's supporting the chant to the campus left liberals is unfair the campus far left the genocide joe you know against biden right and the ukraine thing with this is more clear right i mean there doesn't seem to be any push right like? Like the Lindsey Grahams of the world and the Contons, like where is the, what are they saying that they're going to, they're going to deal with him privately or they're hoping maybe that Trump actually won't care and he gets back in there and he makes Tom Cotton secretary of defense because he doesn't have any care about policy and that's just the bet? Well, look at how little they've done to get to Ben's point of it.
Ben, distinguished correctly, MAGA Republicans and mainstream Republicans. But the mainstream Republicans

could overcome the MAGA Republicans here. They have agency, as we like to say these days,

in the House. It would take X number of them to join a discharge petition.
It would take X number

of them to tell Speaker Johnson that they're going to vote to vacate the speakership if he

doesn't bring it to the floor. We'll see if it happens finally this week.
Some of them have been

doing their best, but doing their best in a very timid and tentative way, not in a way

I don't know. going to vote to vacate the speakership if he doesn't bring it to the floor.
We'll see if it happens finally this week. Some of them have been doing their best, but doing their best in a very timid and tentative way, not in a way that is responsive to the urgency and importance of the moment.
Yeah. One more from Frum just to point it out.
The Democratic House has already approved four aid requests to Ukraine, totaling $75 billion. And since then, it's a Republican House that's refused all aid.
It's just, it's pretty cut and dry. Bill Kristol, thank you so much.
Ben, stick around. Let's talk some Trump trials.
All right, Ben Wittes, Lawfare is just doing the Lord's work covering these trials. I've been following this morning your colleague, Tyler McBrien, the managing editor there on X.
If you can stomach X, I would recommend this follow. He's let me know that Donald Trump is in the courtroom this morning.
He's hunched over and he appears to be bleeding. So that's the latest news we have.
But why don't you give us some big picture about what is happening in the courtroom today? We've got jury selection and just a little bit at the 30,000 foot level. So I know nothing about bloodshed in the courtroom.
I can't speak to that. Trump is in court in New York for jury selection.
Here is the story about jury selection in New York. There is a 42 question jury selection questionnaire that contains all the usual questions, as well as some highly unusual unusual ones like have you ever worked for an organization run by the trump organization or i just have to tell you i saw this question here ben sorry to interrupt but i have to tell you i was reading through it and you get down to one it's like question 41 or something it's like do you have any strong opinions or firmly held beliefs about former president donald trump and i was just like i was imagining being a new york resident and receiving my jury summons like no no i was going the other way from my perspective i was like what a dream piece of mail to get like i'm looking at it i'm going ah i get to be on the trump jury i's like i don't know what is what is legal and what illegal here.
Can I take the fifth on jury questionnaires? But I would be very anxious. Donald who? I'd love to be on this.
I would love to be on this jury. So you would have to remember you are, these are going to be done orally.
They're not filled out. And so remember, you would have to lie repeatedly to a judge's face to do these.
That would be very tempting. To lie your way onto a jury.
But I have to tell you my single favorite question. I don't have the questionnaire in front of me, but it's, you know, are you a member of or associated with any of the following organizations? And they're like the Proud Boys, the Oath Keepers, the Three three percenters, and then stuck in right at the end is Antifa, which I think is just in case, you know, you have any face masked dudes who want to like blow up the court.
Look, it's going to take a good while to seat a jury in this case. The good news is Judge Murchon, Justice Murchon, the presiding judge, has done it before.
He was the judge in the Trump organization criminal case. So he's presided over jury selection in one of these cases before.
And in New York, between the civil cases and the criminal cases, they've actually had a bunch of these. You know, the E.
Jean Carroll cases were jury cases and the Trump Organization case. So there's a bunch of different cases where there's some experience picking a jury.
that said it's going to take a while my guess is it'll take two weeks. And you're going to end up with a collection, a very odd collection of New Yorkers who profess either truthfully or falsely to have an entirely open mind about Donald Trump, have never engaged in political activity for him or against him, and have never worked for any organization either that he controls or like a contractor that he's stiffed, right? Or a media organization, any organization that either side would be suspicious of.
So I think you're going to end up with like the most apolitical Washington Heights grocery delivery guys, I think is what we're looking for here. Okay.
Well, that's America. That is America.
No, no, I'm not mocking it. I was just trying to imagine what the actual profile of a juror in Manhattan who could get through this questionnaire without arousing suspicion looks like.
I'm just hoping it's one resistance mom on Xanax who's able to play it cool enough to just sneak on through. That's what I'm praying for, but we'll see if it happens.
For the folks that just need a refresher on the case, Phil Rotner wrote for the Bullwark about this. That's when we read that once we get a jury, what are going to be the essential facts that the prosecution needs to prove for Trump to be held liable? And he writes, one, that the Trump organization falsely recorded payments made to reimburse Michael Cohen, who went to jail, you might remember, for hush money payments he made on Trump's behalf.
Two, Trump personally either made or caused those false entries to be made. Three, Trump acted with intent to defraud.
I think the most important one. Four, Trump's intent to defraud included an intent to commit aid or conceal the commission of another crime, in this case, campaign finance violations.
Or tax violations. It's actually a combination of the two.
Explain. So you don't actually need to have committed another crime to do it in the course of committing another crime.
You need to have done it in the course of intending to commit another crime. So it's possible to intend to commit more than one crime.
And the prosecution only has to prove one. And they have three theories.
One is state campaign finance law. The second is federal campaign finance law.
And the third is various tax laws. And so basically, if Trump does it intending to defraud by way of violating some other law, they will throw a lot of different laws as spaghetti at the wall here, and the jury only has to believe one of them.
I mean, I think this is, right, basically the nub of the actual legal, you know, questions here. That is basically it, right? Like the Trump defense will come down to essentially that, you know, they weren't intending to commit other crimes, that this was about he didn't want Melania to know, blah, blah, blah.
Yeah, I think so. There'll be a couple other elements of the Trump defense.
The first is the Michael Cohen is a lying sack of shit. Yeah.
Stormy Daniels is a lying sack of shit defense. Say, don't believe them.
But if it is true. Exactly.
And if it is true, it was just that he didn't want. Yeah, in a kind of OJ sort of way.
I think that those are the sort of two big defenses. And then I think they will get as much in a very OJ-like way, they will do their own version of the, you know, Mark Furman is a racist cop defense,

which is right.

These guys are out to get me.

And it all amounts to, by the way, this isn't a criticism.

This is the way defense lawyering works. It all amounts to throwing up a lot of smoke and then arguing to the jury that there's

a reasonable doubt.

The bigger criticism of this case, I don't think is that it's weak, though people often frame it as a weak case. On the evidence, it's a pretty strong case.
Like, he did this stuff, and they've got a lot of evidence of it. I always keep bringing this up when people are like, this is a weak case.
It's like, someone literally already went to jail for this. Right.
This already happened. So what people actually mean when they say it's a weak case is two things.
One is that this step up theory is sketchy. Yeah.
And by the way, the judge in this case said that was wrong. The step up theory, for people who don't know, is what we were talking about earlier.
That has a felony, it has to be in service of intending to do another crime. Exactly.
And people have said that that's sort of a novel legal theory. They have all these sort of disparaging words for it, as though it were kind of a creative way to kind of get around the fact that Trump didn't do anything illegal.
Well, the judge took about like three pages to dismiss this argument in the course of his opinion on Trump's motion to dismiss on this ground. He really treated it as a very pretty conventional application of New York criminal law.
And he like didn't think it was a hard question that this was a viable theory of liability. Look, I think the actual criticism of this is that the case is not weak, but trivial, right? That people feel about this case the way Democrats felt about the Monica Lewinsky case, right? With Clinton.
Like, not that he didn't do it, not that it wasn't illegal, but that, come on, he was just lying under oath to cover up an affair, or he was just falsifying business records to cover up an affair and in the immediate run up to an election that he thought he might lose. That it was kind of normal behavior for a super powerful alpha male.
I don't know. Just thinking about Bill Clinton and Donald Trump and the super powerful alpha male preying on younger women just kind of gave me the ick.
I hear you, but it just gave me the ick for a second. Just the way you phrased it.
I don't know what it was. I just got icked.
But continue. I feel like as somebody who I am old enough to have been, you know, writing about law

at the time of the Clinton Starr investigation, I wrote a book about the Starr investigation.

I always thought it was a pretty significant case. Was it worth impeaching him over? No.

Was it worth an investigation? Was it completely disgusting on presidential behavior? Yes. And that's how I thought about it at the time.
And that's exactly how I think about this case. The other importance of this case is that it may be the only case that actually goes to trial before the election.
And that means that if you're concerned about the criminal president problem, the entire weight of that problem or a wildly disproportionate percentage of the weight of that problem is falling on this case, as opposed to the cases that are more weighty in terms of the gravamen of their allegations. And so it's possible that you could have to cast your vote with 34 convictions on these relatively trivial New York charges and pending cases on much more serious charges elsewhere.
And that's an important piece of the picture as people think about criminality and Donald Trump in the run-up to the election. I am probably on the most bullish, open, whatever you say, interested, excited side of the bulwark, with maybe the exception of George Conway, who's just ready to see Donald Trump be held in a cell for this crime.
I'm like maybe next on the list of people that are like, this was totally appropriate. And George, by the way, is also being consistent.
He was also excited to lock Clinton up for. Yes, exactly.
And I was also very Team Monica. Well, this is a very Team Monica podcast.
So this is consistent. But George is the most chuffed about the possibility of Donald Trump getting prosecuted for this.
I'm down a level from that. The one hesitancy that I have is just that like the campaign finance element of this like our campaign finance laws aren't really being enforced the fec is a joke you know and and i think on the merits you can make a strong argument that it would have really hurt donald i know people say that that's crazy to think because of the access hollywood but i think adding the access hollywood thing on to stormy, on to Karen McDougal, on to the sexual assault.
Like, had there been more information out about all this? I think it may have mattered. It was a very, very close election.
You can't tell me the Jim Comey letter mattered. But learning about Donald Trump cheating on his wife while she was, you know, in labor wouldn't have.
Maybe. We don't know.
So, I think that there's a merited argument on campaign on campaign finance but like we're not really doing campaign finance law in this country right now right but we do do tax law and remember the campaign finance law at issue is not merely federal it's also state i don't know what new york campaign finance enforcement of new york campaign looks like, to be honest. But there are a set of more diverse theories of that second liability element than merely a federal campaign finance violation.
Okay, we have Tyler in the courtroom here, just reading not a lot. He's saying Trump's stone-faced as they're talking about the way he cheated on his wife while they're pregnant, as the prosecutors do.
No reactions. He is posting through it all hunched over now, mostly looking at his phone, looking up every now and then.
He's posted about polls already this morning. He's posted about the 2016 New Hampshire primary.
So, you know, there you go. Our poster in chief in the courtroom this morning.
Ben, any other big picture thoughts on the political implications of all this and where you think this trial goes over the next few weeks? So, first of all, I think the trial will move faster than people expect it to. This is not a super dense case.
We're going to hear from the aptly named David Pecker, who's the chairman of the company that runs the National Enquirer. We're going to hear from, you know, a group of super seedy characters.
You know, it's not the January 6th case. It can be presented in a pretty crisp fashion.
So I think it'll run probably six weeks or so. And I think it's going to be really interesting to see whether having Trump tied up in court every day, what effect that has on just sort of the process of campaigning, other than when Eugene Debs was in federal prison in 1920 when he ran for president.
We've never really seen anything like this. And Debs was a minor party candidate, not a major party standard bearer.
I do want to, on the David Pecker side of this, for listeners, there was a great New York Times Magazine story about this recently by Lachlan Cartwright

that was what I saw working at the National Enquirer during Donald Trump's rise.

Just the grossness of the National Enquirer in 2016 is extremely, I think, lost on people.

And it's worthwhile, fresher.

Maybe I'll get Lachlan on the podcast, actually.

You've just inspired me.

Okay, last question for you.

The potential penalties.

Let's dream. Let's just get excited for a second.
Let's get a little, you know, it's Monday morning, lift our spirits, a lot happening in the world. Donald Trump, let's say, is convicted, then what? I think you're realistically looking at a high sentence on the three to four years side.
this is not going to be the one that, you know, sends him to prison for the rest of his life. I think it's very unlikely that he's at would actually get that much.
But if you imagine him convicted on all counts, and having gone on the campaign that he has been on to, you know, attack the judge's daughter, right? I mean, he's not exactly showing remorse here, or, you know, making amends. And so I think you could imagine a judge being pretty stiff with this.
The question to my mind is, when would sentencing happen? And, you know, when does that, like everybody talks about the impact of conviction on the election, but I'm always focused on the question of the impact of sentencing. It's one thing to vote for somebody who in some abstract sense has a criminal conviction.
It's another thing to vote for somebody who, you know,

if he doesn't win the elections, going to prison for four years, you know, that's, that's a, like a psychologically sort of a different step. And I think Trump is, you know, definitely making matters worse for himself with his conduct toward the court, with his conduct toward the prosecution and toward the witnesses in the case.

The jury has to be anonymous because of fears of Trump's behavior toward them. You know, that's the kind of thing that comes back and smacks you in the face hard when you face sentencing.
And if he is convicted, I see no reason why he wouldn't be sentenced relatively promptly, you know, eight, ten weeks after conviction. What does probation look like for a guy that's running for president? What does it, I mean, like, generally speaking, you know, if there was a period between a conviction and sentencing, there would be limited travel.
Right. I think the prosecution has sort of waived all that stuff, at least for purposes of trial.
And they have at the federal level, too. That said, look, I think, you know, the other question is everybody assumes, and I do, too, that he would be free pending appeal, that you're not going to lock up the major party presidential candidate while there's an appeal pending.
But is that right if he's hurling invective at the judge, if he's attacking the system as corrupt? And I don't think we know the entirety of the answer to that question. Judges have a lot of discretion, advice to listeners when you're on trial in front of one, don't go out of your way to piss him or her off.
There's just nothing in that for you. You're not supposed to call the judge's daughter a tramp.
That's not a general, that's not a general strategic move for a defense. Look, I'm not saying there aren't circumstances in which you would want to do that, but there aren't that many.
I think that there probably are no circumstances. Well, once again, we have Donald Trump who's complaining that everybody's out to get him, that he's treated so unfairly, getting special treatment from the courts.

So we will leave it at that.

Thank you for being back for this report.

And I think we'll probably be seeing more Ben Wittes over the next six weeks.

We'll talk to you soon.

Talk to you later.

All right.

We'll be back tomorrow with another edition of the Bulldog Podcast.

Hopefully less news tomorrow.

Lots happening out there.

But we'll see you then.

Peace. They call it Stormy Monday.
But Tuesday's just as bad.

They call it Stormy Monday But Tuesday's just as bad Wednesday's worries And Thursday's also sad Lord, have mercy

Lord have mercy on me

Lord have mercy My heart's in misery You know I'm crazy about my baby

Yeah, it's in a home to me

The Borg Podcast is produced by Katie Cooper

with audio engineering and editing by Jason Brown.