A Raging Bull Elephant

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Speaker 3 How much legal trouble is Donald Trump in?

Speaker 3 Well, I think you know, he's been indicted four times, faces more than 90 felony charges, and every week we catch up on the latest developments in the legal system's attempts to hold Donald J.

Speaker 3 Trump accountable.

Speaker 3 Finally, on this episode of Trump Trials, of course, we are once again joined by Ben Wittis, who is the editor-in-chief of Lawfare, who is joining us from sunny New York City, it looks like.

Speaker 4 Yeah, right above St. Patrick's Cathedral.
It's a great view out your hotel window, and it's a beautiful day in Manhattan.

Speaker 3 And I'm talking to you from the Midwest, because we're doing this very early in the morning. It's still zero dark 30 here.

Speaker 3 Okay, Ben, before we get into everything, and there's a lot to talk about, a lot of developments in all of the cases. And I want to talk about Merrick Garland's day in the dock.

Speaker 3 He was grilled by Republican members of the House.

Speaker 3 I thought it was a pretty revealing moment. I want to get to that.
But we have to start with a palate cleanser.

Speaker 3 I want to use this as kind of a public service announcement because, of course, this is our podcast. The Trump Trials is part of the Boltwork podcast.
But I'm not sure, Ben, that you knew.

Speaker 3 That Senator Ted Cruz has a side gig. Did you know that he has a podcast?

Speaker 4 I did know that he has a podcast, though. I have a confession.

Speaker 4 I've never listened to it. And so I feel like my cultural horizons have been limited by the fact that I've never actually heard Ted Cruz's podcast before.

Speaker 3 I want to broaden everybody's cultural horizons here because, in case you folks did not know what Senator Ted Cruz spends his time on, he clarifies it again and again and again. Here's Ted.

Speaker 5 Some of y'all know I do every week a podcast. I do every week a podcast.
I do a podcast every week. I do a podcast three days a week.
I do a podcast. I do a podcast.
I do a podcast.

Speaker 5 Last year I launched a podcast. Two years ago I launched a podcast.
Three years ago I launched a podcast. I do a podcast, my last podcast.
Today's podcast on the podcast. Podcast on my podcast.

Speaker 3 Back to Katachi Brown Jackson's confirmation hearing. You know, a couple of years ago, I was doing my weekly podcast.
podcast.

Speaker 5 My podcast, my podcast, my podcast, my podcast, my podcast, my podcast, my podcast, podcast, podcast, podcast, podcast, podcast, podcast, podcast, podcast.

Speaker 3 If you're a grifter, you got a grift.

Speaker 3 Whoa.

Speaker 3 So, Ben, apparently he has a podcast and he's really, really excited about it.

Speaker 3 Now, I would think that being a United States senator, you'd have a lot of things, but as one of our colleagues, Jim Swift Swift often comments, Ted Cruz really doesn't want to be a senator anymore.

Speaker 4 I mean, let's be honest. Being a senator is kind of a part-time job in any way.
If you're Ted Cruz, they have all this staff. Most of them don't do a lot of work.

Speaker 4 And it's mostly a job about raising money so that you can continue to be a senator.

Speaker 3 And being important.

Speaker 4 And being important. And dirty little secret between us chickens, podcasting is, you know, which you and I both do a lot of,

Speaker 4 is,

Speaker 4 you know, it's more work than being a senator, but it's not that hard.

Speaker 4 You sit around in front of a microphone and talk. And so I think it's a kind of good combination, you know, for Ted.
You do some senatoring, you do some podcasting.

Speaker 3 You do less damage with the podcast, right? I mean, as a United States senator, you can F up the whole country. That's right.

Speaker 3 The fact that Ted Cruz now spends his time on a podcast is actually an upgrade because I'm old enough to remember Benjamin when it was Ted Cruz who was shutting down the government.

Speaker 3 Remember when he was the bright, shining Taliban bomb thrower who was, you know, going to kill Obamacare and nobody could figure out what the end game was?

Speaker 3 Now the baton of crazy has been passed to members of the House of Representatives. And what's Ted Cruz got to do? He can't bollocks anything up anymore.
So he's putting his energies into podcasts.

Speaker 4 And even in the Senate, the torch of inane obstructionism has been passed to Tommy Tuberville. And so he's sort of not the leading edge of, you know, Mullah Ted is kind of yesterday's Taliban senator.

Speaker 4 Today is the younger generation that's kind of taken over.

Speaker 3 Yeah, it must be kind of tough being Ted Cruz because you're looking around and going, hey. Tommy Tuberville, that's my zone.

Speaker 3 And of course, now we're hearing that Kerry Lake is going to launch her Senate race in Arizona. What could go wrong there?

Speaker 4 There's another really big advantage to the combination of senatoring and podcasting, which is, as people in the podcast business know, you're always looking for cross-fertilization and marketing attempts and opportunities.

Speaker 4 You're always looking how do you leverage, you've got to use the word leverage, leverage your podcasting position for, you know, some other market opportunity. And Ted is doing that.

Speaker 4 He's leveraging senatoring to promote his podcast. And I'm sure he's raising money for his Senate campaigns and stuff on the podcast.
And so I think it's a good business for Ted.

Speaker 4 And I think we should maybe have him on the Trump Trials podcast and have ourselves on the, you know, we can cross-market with Ted's podcast.

Speaker 4 I think we, you know, we're really looking at this wrong, Charlie.

Speaker 3 I also did want to point out,

Speaker 3 since you're pointing out the need to, you know, market these podcasts, I'm just looking at the Apple political podcast chart for today, and it goes up and down.

Speaker 3 I don't know whether you can see this, but if you're watching this on video, the verdict with Ted Cruz is number eight. Bannon's War Room is number seven, but leading them, the Bulwark podcast.

Speaker 3 So you've come to the right place.

Speaker 4 So, Ted, you would be doing yourself a favor in the ratings by partnering with us.

Speaker 4 I just also want to say one thing to both Steve Bannon and Ted Cruz.

Speaker 3 On that note, now that our palates have been completely cleansed, let's talk about what happened yesterday.

Speaker 3 I want to get into, again, the Ray Epps episode, what's going on down in Florida, the new evidence that we're getting out of Mar-a-Lago.

Speaker 3 But very interesting moment yesterday with the Attorney General of the United States is in the dock and he's being hectored and bullied by Matt Gates. And you watched most of it.

Speaker 3 I listened to some of it.

Speaker 3 I was just struck again by the degree to which Republicans are ready, willing, and eager to try to retcon January 6th, to turn January 6th into something different than it was. But give me your sense.

Speaker 3 He goes in front of this committee to explain that the Department of Justice was independent and get beat up. So, how did it go? Your thoughts, Ben?

Speaker 4 Well, it was completely embarrassing, but not for Merrick Garland. To me, the striking thing about it is that Republicans didn't seem to understand that it was embarrassing for them.

Speaker 4 No, no, why would they? They seem to think

Speaker 4 that they have proven that the Justice Department is corrupt and favoring Joe Biden and Hunter Biden and persecuting Donald Trump.

Speaker 4 And they are peppering the Attorney General with unanswerable questions that reveal the degree of his corruption.

Speaker 4 And they don't seem to understand that Merritt Garland's answer to all of these questions is complete

Speaker 4 and kind of unassailable. So Garland's answer

Speaker 4 is number one, he's had no contact with the White House and neither has the rest of the Justice Department. So there's no political interference from Joe Biden or people associated with him.

Speaker 4 Number two,

Speaker 4 when Garland came in, The investigation of Hunter Biden was being run by the U.S. Attorney in Delaware, a guy named David Weiss,

Speaker 4 who who was Trump's U.S. Attorney in Delaware, but a very well-respected career prosecutor.

Speaker 4 And so Garland, A, left him in place, and B, as part of his confirmation hearing, committed himself to respecting the finality of David Weiss's judgments with respect to the decision of whom to prosecute and for what.

Speaker 4 And that he has respected Weiss's independence and authority ever since, and consequently not involved himself in the details of the case because he doesn't want to interfere in the case, which is, of course, exactly what Republicans purport to want, right?

Speaker 4 An independent investigation.

Speaker 4 And that when David Weiss asked him to be made a special counsel, he did that within three days, and that he has allowed Weiss to run the case as he wants to, and consequently is not all that conversant in the details, which he wouldn't discuss anyway, because it's a pending matter, and that Weiss, like any special counsel, will have to write a report at the end of his investigation, in which he'll presumably answer.

Speaker 4 the questions and the criticisms that he's received. To me, this answer is essentially complete.

Speaker 4 There is one question that Garland refuses to answer that I think is salient, but we can talk about that separately.

Speaker 4 But it's an essentially complete answer, and it leaves these Republican members sputtering with rage because they are now furious that Garland hasn't involved himself in the details and therefore can't and won't answer questions about them precisely when and because,

Speaker 4 as they were demanding, he essentially recused himself from the question of Hunter Biden's prosecution.

Speaker 3 Aaron Ross Powell, so what is the Sillian question that you think he's not answering?

Speaker 4 So, the question that he will not answer, they remarkably didn't focus much on, but I think is

Speaker 4 an interesting question: is what changed for David Weiss when

Speaker 4 he went from not asking to be special counsel to asking to be special counsel.

Speaker 4 And Garland in the document refers to, this is the language of the special counsel regs, extraordinary circumstances that led to the request.

Speaker 4 And the question is, what are those extraordinary circumstances? And he was asked this question and he said he wouldn't

Speaker 4 wouldn't give more information on that at this time. I do think that is a fair question and it's a curious one and it's non-obvious.
In the case of Mr. Hur

Speaker 4 or Jack Smith, it's very obvious what the special circumstances are that give rise to these special counsel investigations. In the case of Mr.
Weiss, it's not.

Speaker 4 And I don't think the answer to that is likely to be anything corrupt or nasty, but I do think it's a missing piece of

Speaker 4 the puzzle.

Speaker 3 You know, I was thinking about your comment that their performance was embarrassing, but they don't seem to realize that they are embarrassed. This also seems to be kind of a

Speaker 3 phenomenon of our times. In part, people like Matt Gates don't care that they are embarrassing themselves because they do live in an alternative reality where they're going to tell their own story.

Speaker 3 So they don't have to worry about what does the mainstream American think about them. They're thinking about what is my YouTube moment.
I am going to create my YouTube moment, which will go viral.

Speaker 3 Or my podcast.

Speaker 3 Well, exactly. So this has changed their behavior.

Speaker 3 Also, it is interesting the degree to which you see that Republicans have figured out, people like Matt Gates have figured out, that you don't need evidence if you have the allegation.

Speaker 3 All you need to do is throw out the charge, be as loud as possible, and it will stick.

Speaker 4 And repeat it as often as possible. Exactly.
Biden crime family.

Speaker 3 Well, and there is this new poll out. I think it's the YouGov poll, something like that, where who enriched themselves while they were in office?

Speaker 3 I think the exact same percentage, say, Donald Trump as, say, Joe Biden. What they've done is successfully, you throw this stuff up, you know, the smoke and the dust and everything, and it does stick.

Speaker 3 Now, of course, this reminds us how the standards of evidence outside of a courtroom are completely different.

Speaker 3 In Matt Gates' world, all he has to do is just throw out the bullshit, you know, throw it up against the wall.

Speaker 3 And he knows that he will be able to get that amplified and spread and the people will believe it because they want to believe it. So in 2024, we're going to see this sort of the two screens, right?

Speaker 3 The evidence in a courtroom that you actually have to back up versus the political world where Donald Trump can say anything on social media, Matt Gates can say anything on social media.

Speaker 3 They can make any sort of charge. And it will be interesting whether or not the truth-based evidence that comes out in court can compete with the blizzard of bullshit.

Speaker 4 I agree with that entirely. I think, so you said a couple of individual words in there that I want to spotlight.
One is the word loudly.

Speaker 4 And one of the striking things about the Republicans at yesterday's hearing is just how many decibels they were generating. The quintessential example of this is Jim Jordan,

Speaker 4 who has only one,

Speaker 4 you know, it's like in the old fake rockumentary, these amps go to 11, right? But in Jordan's case, they're always there. Always.
There's only one volume, and it's 11.

Speaker 4 And he starts yelling the moment the hearing begins. He starts, I think his words to open the hearing are the fixes in.
And he starts yelling, and he doesn't stop.

Speaker 3 It's all performative. Right.
They see this as a show. They see this as performative.

Speaker 3 And this is what worries me as well, about the asymmetry, because people in the criminal justice system, they can't just perform. They're not just putting on the Broadway play, right?

Speaker 4 That's right. And the other key point, I think, is just repeating the same phrases over and over again.

Speaker 3 Over and over.

Speaker 4 So the phrase Biden crime family, which is a constructed phrase designed to impute.

Speaker 4 whatever wrongdoing Hunter Biden may have engaged in to his father.

Speaker 4 It's a zooming out of the lens so that if you have a tax evasion issue on Hunter Biden's part, you can attribute it to the family rather than to the individual.

Speaker 4 And you can turn fairly garden variety family influence pebbling into hopefully an impeachable offense on the part of Biden.

Speaker 4 And the third element that I think was really on display yesterday, which again, really offended Merrick Garland.

Speaker 4 I mean, I think he has this patience of a saint act, but you could see that it was kind of getting to him.

Speaker 4 You know, this just glossing over huge holes in their record and what the facts will state with just

Speaker 4 announcements. For example, they're quite obsessed.

Speaker 4 It's odd because it wouldn't prove anything if it were true, but they're quite obsessed with this bureaucratic question of whether David Weiss was correct or not when he said he had the authority to bring cases anywhere.

Speaker 4 And they keep saying

Speaker 4 that he's changed his story several times over a short period of time.

Speaker 4 And Garland points out that the letters that Weiss wrote are actually consistent with one another on this arcane point of law, which involves a provision 515.

Speaker 4 And they just announce he's changed his position, he's contradicted himself, and they never actually explain what the contradiction is or seek to see if it can be reconciled.

Speaker 4 You just announce it and announce it and announce it.

Speaker 3 No, you're right. And this repetition has been effective.
And

Speaker 3 this is where the normie heads explode.

Speaker 3 Because after watching the Trump crime family over the last, what, seven years, watching Jared Navanka and Donald Trump with their massive grift, to wake up and realize that the meme that is trending is the Biden crime family.

Speaker 3 I mean, this is the world we live in, the projection. So I would like to think that what about Jared is the Trump card that's going to answer all of this.

Speaker 3 But again, there's a certain asymmetry, in part because you lay out the evidence in a sober way, it's hard to compete against the announcement in the decimals. Okay, so let's get to the business here.

Speaker 3 Let's start off with some of the things that happened this week. We have extensive notes.

Speaker 3 One of the things that came up during the hearing yesterday, though, was this obsession, again, about January 6th and were there agent provocateurs in the crowd.

Speaker 4 How many were there? How many were there, Merrick Garland? That's right.

Speaker 3 I believe you just perjure yourself when you say you did not know.

Speaker 3 I mean, that was the moment where, you know, a normal human being just, you know, basically takes takes the papers, throws it on the desk, and walks out.

Speaker 3 You know, Ray Epps came up again, even though it has been debunked over and over again. So Ray Epps is this Trump supporter who got swept into Tucker Carlson's conspiracy machine.

Speaker 3 If you trace it back, on Wednesday, though, he pleads guilty to a misdemeanor charge connected to an attack on the Capitol.

Speaker 3 And, of course, there was a lot of, you know, heavy breathing about like, is this just coincidental that Ray Epps finally gets charged? Let's just talk about this.

Speaker 3 I mean, it's not directly related to the prosecution of Trump, but Epps, this former Marine who is a wedding venue owner, became somehow the target of all of these far-right conspiracy theories around events on January 6th.

Speaker 3 My understanding is this is a guy that voted for Trump twice, and he became this unlikely focus.

Speaker 3 It was promoted by Fox News and right-wing outlets that somehow he was a government or FBI asset who instigated the riot.

Speaker 3 This is the false flag theory that they just latched on in the face of all of the evidence that no.

Speaker 3 So what is the significance of the charging of Ray Epps at this very late date after all that has happened?

Speaker 4 The significance is that he apparently reached a plea deal.

Speaker 4 And of all the 1,200 cases that the Justice Department is trying to resolve and the unknown number of hundreds that it is adding to that with you know additional suspects they continue to arrest people they continue to file new charges they were ready to deal with ray x and he pled and that's the story and of course it does undercut obviously this narrative that he was being protected by the federal government well of course He pled to a misdemeanor.

Speaker 4 So if you want to continue the conspiracy theory, you can say he got a sweetheart deal.

Speaker 3 Well, that's what they'll say.

Speaker 4 That only several hundred other people also got.

Speaker 4 Look, there is no evidence that Ray Epps was a FBI plant. No.
If indeed he was cooperating, has been cooperating, good for him.

Speaker 3 Well, he's also suing. I mean, he's filed a defamation suit against Fox.
You know, he says, look, all of these conspiracy theories and Tucker Carlson's bullshit has torn apart his life.

Speaker 3 He's been forced to leave his job, forced to leave his state, and his lawyer said this guilty plea was an effort to put his life back together.

Speaker 3 Again, the asymmetry is the fact that the conspiracy theory has been discredited over and over and over again, and clearly, you know, one more time is not going to mean that the conspiracy theory goes away.

Speaker 3 It will never go away.

Speaker 4 The conspiracy theory will never go away because it's useful. It's useful to members of Congress, so it will show up in hearings.

Speaker 4 Those hearings will then be quoted by other people to whom it is useful as evidence that there's a viable theory. I'm afraid Mr.

Speaker 4 Epps is going to have trouble putting his life back together for that reason, which is regrettable. I will say that I have less sympathy for him than I do for Shea Moss.

Speaker 3 Oh, yeah, not in the same category.

Speaker 4 You know, these were people who were dragged into something by doing nothing other than good, i.e., being election workers in Fulton County.

Speaker 4 This is a guy who showed up at January 6th, engaged in criminal activity, and lay down with dogs, and is surprised that he woke up with fleas.

Speaker 4 That said, the conspiracy theories about him are lunatic, and people should be able to plead out and go on with their lives and have second chances. And, you know, let's wish him the best.

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Speaker 3 So let's move on to the biggest, I think the biggest story, you can disagree with me on this, the biggest story since you and I spoke over the last week was the very narrowly tailored motion, but still quite a banger, from Jack Smith asking for a gag order against Donald Trump.

Speaker 3 I thought this was an extraordinary document, this government motion laying out the pattern of practice of Donald Trump, intimidating, bullying, insulting people who are involved in the criminal case.

Speaker 3 This is what Jeff Smith wrote. The defendant has an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.

Speaker 3 The government said that Trump made clear his attent to issue public attacks related to his case when the day after his arraignment, he posted a threatening message on social media, which was, if you go after me, I'm coming after you.

Speaker 3 Okay, now Trump is trying to weaponize this, is saying they're trying to take away my First Amendment rights.

Speaker 3 So let's talk about this because This motion felt like it was inevitable that Jack Smith has been paying attention and he's finally said, okay, I want you, Judge Shutkin, to at least draw some lines about witness intimidation, attempts to pollute the jury pool.

Speaker 3 So, Ben, your take on this gag order, because again, on the right, it's going to be you're gagging a candidate for president of the United States.

Speaker 3 The other point of view is, tell me whether you agree with this. If it was any other criminal defendant, they would have already been sanctioned or jailed.

Speaker 4 Let's start with the terminology. I don't think it's a request for a gag order.

Speaker 4 I think it's a request for the court to enforce its most basic rules of defendant conduct that can influence juries and witnesses.

Speaker 4 And the term gag order has this very pejorative connotation, though some of us might enjoy seeing Trump bound and gagged. We don't normally,

Speaker 4 the haste with which the press jumped to call it a gag order, this is a request that he not be able to intimidate witnesses and potential jurors.

Speaker 4 Look, this is a very tricky problem. And it's a tricky problem for Jack Smith, and it's a tricky problem for Judge Chutkin.

Speaker 4 You have this raging bull elephant who

Speaker 4 no chains can bind.

Speaker 4 And you have to vindicate the interests of the justice system in not tolerating efforts by defendants to affect their trials by behaving in ways that are, frankly, at odds with court rules, at odds with court orders, et cetera.

Speaker 4 On the other hand, you don't want to arm him in the political arena, and you don't want to set up a situation in which he's going to have a potentially valid First Amendment claim that you've stifled his political speech in the context of an election, and you've stifled the ability of voters to hear from the presumptive Republican nominee for president.

Speaker 4 This gets more acute as you head toward days in which people are actually going to cast votes, either in the primary or the general.

Speaker 4 And there is very little precedent that helps you with it in the sense that most political candidates in history aren't on a crime spree of violating court order.

Speaker 3 Hasn't Jack Smith, in effect, decided that I'm not going to think through that political lens. I'm not going to treat Donald Trump as a candidate for president.

Speaker 3 I'm going to treat him as a criminal defendant who's engaged in this pattern of practice of bullying, intimidation, and threats.

Speaker 4 Yes, but the two aren't entirely separate.

Speaker 3 Right, of course. In the real world, I'm just saying that.

Speaker 4 No, no, no, but even in the theoretical world, because Trump's First Amendment argument would be different from yours or mine, right? Your First Amendment argument would be, hey, I'm Charlie Sykes.

Speaker 4 I'm a podcaster. I'm entitled to talk like any citizen.
His argument is I am a presumptive candidate of a major party for president.

Speaker 4 So there are First Amendment rights associated with the Republican Party. There are First Amendment rights associated with voter access.

Speaker 3 Wait, wait, he doesn't have more First Amendment rights than you or I have. No, but he...

Speaker 3 The First Amendment does not make a distinction between

Speaker 3 him and any other, say, a podcaster like Ted Cruz and us.

Speaker 4 It doesn't, but it also gives particular solicitude to voter access to information in the context of elections, to political speech as opposed to other things.

Speaker 4 So I think it's an area where he knows to expect the courts to tread carefully.

Speaker 4 Jack Smith is treading carefully. As you noted earlier, if this were any other defendant, there would be a bail revocation hearing already.

Speaker 4 You know, look what happened to Roger Stone when he engaged in much less egregious activity pretrial. And so I do think there's an expectation here that everybody's going to tread carefully.

Speaker 3 Everybody except Donald Trump, who is not treading carefully.

Speaker 4 Which gives rise to precisely the asymmetric problem that you're describing.

Speaker 4 So here's my best read on what they're actually doing, which is, first of all, Judge Chutkin said at the hearing on August 28th that the real remedy she is contemplating is moving up the trial.

Speaker 3 Right.

Speaker 4 And the logic of this is if you're going to try to influence jurors and witnesses, the remedy of having less and less time to do it is a powerful one.

Speaker 3 Right. Because money is not going to dissuade him.
That's a cost of doing business. As you point out, she's unlikely to, you know, slap him in an orange jumpsuit and put him in jail.

Speaker 3 So, this is the most effective

Speaker 3 weapon she has.

Speaker 4 This is a heck of a remedy. Yeah.
And what I think Jack Smith is doing is,

Speaker 4 first of all, the purpose of a motion like this is to create a record. It's a 19-page motion, if memory serves.

Speaker 4 And it's full of like, on ex and such a day, he truthed this, then he did this, then he said this. It's bringing the receipts of a lot of things that he said.
And remember, after that,

Speaker 4 he has the sit-down with Kristen Welker. Just documenting it, showing that every time he does it, it ends up in the court record, is step one.
Step two is you get her,

Speaker 4 I'm paying attention and the judge is paying attention. Step two is you ask the judge for modest remedy, which is what this is.
Tell him he can't do this. Maybe you do that two or three times.

Speaker 4 And then once you've established a record of bringing this stuff to her attention, She then responds with an order that says cut it out. He defies the order.
And you have a serial example of that.

Speaker 4 Then you come in with a motion that says

Speaker 4 either lock him up or failing that,

Speaker 4 move the trial date way forward as a punishment and a prophylactic measure against jury tampering and witness tampering. And that's what I think they're setting up.
The goal is not to

Speaker 4 get him locked up. The goal is to get the trial accelerated.

Speaker 3 Yeah, no, I think that makes sense. So I was looking up the exact language of this motion because he is clearly creating a record.

Speaker 3 And we need to keep reminding ourselves that this is in just one of the four cases that Donald Trump is facing. And he's engaged in similar conduct in each of those four separate cases.

Speaker 3 And so, what Jack Smith wrote is: since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a nearly daily basis regarding the citizens of the District of Columbia, the court, prosecutors, and prospective witnesses.

Speaker 3 Now, what I thought was interesting was he links this to, you know, the long-term

Speaker 4 criminal conduct in the case. Right.

Speaker 3 Like his previous public disinformation campaign regarding the 2020 presidential election.

Speaker 3 The defendant's recent extrajudicial statements are intended to undermine public confidence in an institution, the judicial system, and to undermine confidence in and intimidate individuals, the court, the jury pool, witnesses, and prosecutors.

Speaker 3 Now, again, they're looking for this narrow, well-defined restriction targeted at the extrajudicial statements. To your point, I mean, Jack Smith recognizes what's going on.

Speaker 3 He understands the stakes, and he's willing to play. He understands the asymmetry here, but he's not fooling around.
So this is the initial shot across the bow.

Speaker 3 But he also understands, I think, the bigger picture. And I've talked about this before.

Speaker 3 Donald Trump's long march through institutions that he thinks are a threat, and his willingness and his success in discrediting each and every one of them, delegitimizing them, whether it is the media, now it is the courts, and the threat that this poses.

Speaker 3 And the judges are going to have to deal with this. So, what do you think in the short term, Judge Chutkin will do with this motion?

Speaker 4 My guess is that she will issue a stern warning and not enter an order. You get a mulligan on the first motion, so that then she can say later,

Speaker 4 I gave him a lot of leeway. I did not sanction them.
I did not issue an order the first time that Jack Smith asked. But I don't know.

Speaker 4 It may depend on how concerned she is about actual witness tampering. Remember that witness tampering is one of the obstruction.

Speaker 4 There's underlying concerns here about getting people to do illegal things. Mr.
Oliveira, Mr.

Speaker 4 Nada, and Evan Corcoran are all,

Speaker 4 it's not necessarily charged as witness tampering, but there's a whole underlying thing here of getting people to do illegal things. And the idea, you know, she may be quite concerned about that.

Speaker 4 And so I don't know. If it were me,

Speaker 4 I would haul his lawyers into court

Speaker 4 and read them the Riot Act and probably not enter an order the first time. But again, you have to imagine a sort of communication.

Speaker 4 Obviously, you want to signal to the prosecutors, keep collecting the record, keep informing me of the record, and when the time comes, I'll take action.

Speaker 4 But you want to set set it up in a way that shows that you didn't do it precipitously.

Speaker 3 Okay, on Judge Shutkin, of course, Trump has made a motion to have her taken off the case, recuse herself. That's going nowhere, I assume.

Speaker 4 Correct. It's very weak.
We have a good piece by Roger Parloff on lawfare explaining the weakness for anybody who wants it.

Speaker 4 The bottom line is that having opinions about matters that come from sitting on cases is simply not grounds for recusal.

Speaker 3 Trevor Burrus, Jr.: So, the reminder that this is a motion in just one of the four cases, I certainly wouldn't be surprised if prosecutors in New York, in Fulton County, and perhaps Jack Smith also in the Mar-a-Lago trial were to make similar motions to the court because the fact is it is the pattern and practice of the bullying, the obstruction, the intimidate, all of this applies to each and every one of these cases.

Speaker 3 So I wouldn't be surprised if they're sitting up there in New York or in Fulton County thinking, well, look, why don't we almost cut and paste some of this and make similar motions?

Speaker 4 It's true, although I do think the

Speaker 4 I follow New York a little bit less carefully, and I think Trump is less obsessed with it, honestly.

Speaker 4 But in Fulton County, they are real busy right now with trial preparations for cases that are going to trial in October for Sidney Powell and Mr. Chesborough.

Speaker 4 They're also fighting off these removal motions to federal court.

Speaker 4 And in Florida, they are dealing with a situation of a judge who is just taking her own sweet time to do anything, including the most basic. protective orders.

Speaker 4 You know, she took two months to enter a protective order. She

Speaker 4 has

Speaker 4 asked for a truly like dissertation-like set of briefings on the Classified Information Procedures Act.

Speaker 4 And so they may make the judgment that, in that case, that anything that you file that makes her busier is going to give her an excuse to delay.

Speaker 4 The advantage that you have in Chuckin's courtroom is that she has a sense of the urgency of the matter. She seems to want to get the thing to trial in a timely fashion.

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Speaker 3 Okay, so let's talk about that documents case. What happened over the last several days? We have another Trump aide, yet another, another individual from Trump World.

Speaker 3 Molly Michael, former personal assistant to Trump, who worked outside the Oval Office and then in his post-presidential office,

Speaker 3 reported to federal investigators that Trump told her to say that she knew nothing. about the boxes containing classified information.
This was an ABC News report.

Speaker 3 They reported that Molly Michael received requests requests or taskings from Trump that were written on the back of note cards, and she later recognized those note cards as sensitive White House materials with visible classification markings that were used to brief Trump while he was still in office about phone calls with foreign leaders or other international-related matters.

Speaker 3 The note cards with classification markings were at Trump's Mar-a-Lago estate. when the FBI searched the property last August.

Speaker 3 Sources also told the network that Michael has told federal investigators that last year she grew increasingly concerned with how Trump handled recurring requests from the National Archives for the return of all government documents being kept in boxes at Mar-a-Lago.

Speaker 3 And she felt that Trump's claims about it at the time would be easy to disprove. She resigned last year.
She is believed to be Trump employee two in the indictment.

Speaker 3 So

Speaker 3 how does this add to the case, or does it simply just underline what we already knew?

Speaker 4 Well, it underlines what we already knew. It also adds to it in the sense that you and I discussed when I was in Reykjavik.
Once one of these people

Speaker 4 comes forward, once you have the Stanley Woodward death grip around the necks of all these witnesses is perceived to loosen a little bit, all of a sudden you have a cascade of people coming forward.

Speaker 4 And I think I said from the airport in Reykjavik that I expected a flood of these. This one appears to be not exactly new, right? She was known about in time to get her in the indictment.

Speaker 4 But I do think you're going to have a bunch of new people. And you saw that with Jenna Ellis the other day as well.
You know, she

Speaker 4 has suddenly discovered that Trump is a malignant narcissist. Amazing.

Speaker 4 That he cares only about himself, giving rise to David David French's memorable quip, that it's good that she suddenly discovered this.

Speaker 4 It'd be even better if she showed any self-awareness about having spent the last several years attacking people who had discovered it before her.

Speaker 3 It is amazing how criminal indictments can marvelously focus the mind. Okay, so let's flip to Georgia.
A bunch of activity in Fulton County.

Speaker 3 Three fake elector defendants in the RICO case claimed in court that

Speaker 3 they were, in fact, duly elected and qualified electors following federal law for a contested election. They're trying to have their case removed to a federal court.

Speaker 3 Prosecutors are calling this nonsense and fantasy, which of course it is.

Speaker 4 Yeah, so let's deal with this one quickly. There are some hard removal questions.
I think Mark Meadows is a tough case that's going to, the 11th Circuit's going to spend some time on.

Speaker 4 The Supreme Court's going to spend some time on. Trump is a tricky case as well.
Fake electors are not a tricky case. You have to be a federal officer in order to qualify for removal.

Speaker 4 These people are fake federal officers, and actually, electors themselves are not federal officers. They're state officials.
So it's simply a non-question.

Speaker 4 Cosplay does not entitle you to removal.

Speaker 3 Okay, so speaking of federal officers and easier cases, Jeffrey Clark, former acting assistant attorney general, is also asking to have his case removed. You covered this law fair very extensively.

Speaker 3 There was a hearing this week. He didn't bother to show up for his hearing.
It It does not sound like it went well for him. He is the guy that Trump wanted to install as acting attorney general.

Speaker 3 His brief was environmental law, but he's claiming that he acted under color of law, of his position.

Speaker 3 Give me your sense of whether he's going to be more successful than Mark Meadows in getting this removed to federal court.

Speaker 4 I think he's not, and there are a few reasons for it.

Speaker 4 So the first is that he was acting in defiance of the direction of the Attorney General and the Deputy Attorney General, both of whom forbade him to do precisely the things that he was trying to do, that is, send a false letter to Georgia saying falsely that the federal government, the Justice Department, had uncovered evidence of irregularities in the Georgia election.

Speaker 4 Now, Clark can argue correctly that President Trump seemed to approve of these actions and seemed to okay them.

Speaker 4 But here's the thing, Trump contemplated removing the acting attorney general Rosen and the Acting Deputy Attorney General Donahue, but he didn't.

Speaker 4 And therefore, they have the authority to tell Clark what he is and isn't allowed to do. Moreover, even if he was authorized to engage in this activity, and I think he was not,

Speaker 4 even if he was authorized, it is not part of the authority of the Justice Department to write a lying letter to the state of Georgia informing it that it is investigating allegations of election fraud that it is not in fact investigating.

Speaker 4 And so the nature of the activity is sufficiently fraudulent that it's very hard to see how his office entitles him to do that.

Speaker 4 So I think this is actually a bad case for removal. I think it's a less difficult one than Meadows.
And they also, as you point out, didn't actually put on any evidence. Clark didn't show up.

Speaker 4 That's awkward. And the judge refused to accept, except in very limited parts, the affidavits that he advanced.

Speaker 4 And so I don't think there's a record that will really support the motion, which in any event has no merit.

Speaker 3 So another strange little twist in Georgia in this, in a matter involving a conflict of interest among defense counsel, Fonnie Willis, the DA, made a filing that identified Lynn Wood as a witness for the state in the Georgia election subversion case.

Speaker 3 And for people who have didn't have him on their bingo card, Lynn Wood was one of the bat shittiest crazies of the lawyers out there.

Speaker 3 I mean, he was, you know, in the whole release the Kraken world, but he filed a lot of completely bogus lawsuits following the 2020 election.

Speaker 3 Now, he's denying that he flipped on Trump, but there's obviously some legal drama. So, what did you make of Lynn Wood popping up as a witness?

Speaker 4 I mean, the state can call him whether he's cooperating or not. I also wouldn't trust Lynn Wood to represent his status accurately.
He did manage to avoid indictment somehow.

Speaker 4 They clearly are using him for some purpose in connection with the case, and we will just have to see what it is.

Speaker 3 Okay, so Rudy Giuliani back in the news again. Apparently, this is also Georgia-related.

Speaker 3 Rudy's going to be required to appear in person for the remainder of his trial on the damages that he owes Ruby Freeman and Shea Moss in their defamation suit against him.

Speaker 3 That begins in early December. That's kind of interesting that he has to sit there.
He's already lost that suit. Not specifically Georgia-related, but feels like it's related to everything.

Speaker 3 Cassidy Hutchinson has a new book out.

Speaker 4 With the least surprising allegation you could imagine.

Speaker 3 You know, we're at the point now where where America's mayor has become America's groper.

Speaker 3 And you step back and you think, and I'm sorry to keep doing this, but the fall of Rudy Giuliani, the way he has become this cartoon version of his own cartoon version, I mean, it just keeps getting worse.

Speaker 3 So

Speaker 3 she says that he groped her on January 6th, just when you think he could not get any stranger. Quote from the book.
By the way, he says, fingering the fabric, I'm loving this leather jacket on you.

Speaker 3 His hand slips under my blazer, then my skirt. And everybody that hears that story goes, just another Rudy story.
Freaking pathetic.

Speaker 4 Yeah. And remember, this is a guy who the harassment case against him from his former employee is one of the most graphic.

Speaker 4 In Earth 2.0, where we cared about things like this, would be one of the most outrageous documents ever filed about a public figure.

Speaker 3 It would end anyone's career in anyone else's.

Speaker 3 I mean, this is the thing in the Trump world: the number of things that shortly before, like five minutes ago, would have completely driven you from polite society and now are just kind of like speed bumps.

Speaker 3 And I am thinking of Lauren Boebert out there. Do you remember when Pee-Wee Herman performed certain acts in a theater? And that was the end of Pee-Wee Herman?

Speaker 4 That was the end of Pee-Wee Herman, yeah. Well, Lauren Bobert, here's my bold prediction: she's not going to resign.

Speaker 3 Oh, I think that is a safe one. By the end of the week, it's like, wait, she was.

Speaker 3 Oh, never mind. I just, just let's not.

Speaker 3 Okay, yeah, let's not. Okay, I have here some notes on this Rolling Stone piece, the Trump is worried about prison.
It says that Trump is privately fretting about orange jumpsuits.

Speaker 3 I have to say that feels a little bit like fan fiction.

Speaker 3 We don't know what he's actually saying here because Donald Trump's entire focus clearly is, I don't really need to worry about what's happening in the courtroom because I'm going to be elected president.

Speaker 3 I'm going to make it a go away. So I think this idea that he's worried, again, I don't know.
I frankly don't care what he's worried about.

Speaker 4 Yeah, I care what Trump does, what he says, and what the effects of his action are. The internal state of his mind is not my concern.

Speaker 3 Right. It's easy enough to simply say, this is what he is doing.
This is what he is saying. This is what he is threatening.

Speaker 3 And I think that in terms of the retribution and the weaponization of the Justice Department, we've talked about this before, I think that he's very much in earnest. I don't think he's bluffing.

Speaker 3 And I think that in 2024, it ought to be very, very clear that if you elect this man, this is one of those promises he's not going to break. He's going to be your retribution.

Speaker 3 He's going to do all of these things. He's going to pardon the January 6th rioters.
And somehow, That hasn't been disqualifying up until now.

Speaker 3 Because maybe, Ben, we live in an age where nothing is disqualifying.

Speaker 4 Well, and we also live in an age where nobody's making the case. Nobody?

Speaker 4 I mean, among the politicians who were running against him, Joe Biden obviously is trying not to talk about him yet because we're not in a general election context. So you can forgive that, I suppose.

Speaker 4 Chris Christie, in the one debate that he had,

Speaker 4 actually soft-pedaled a lot of his criticisms of Trump, although he's made the case elsewhere.

Speaker 3 Relentlessly.

Speaker 4 Asa Hutchison is too much of a gentleman, and the others are out competing themselves to say that they would do it too, right? The Vivek Ramaswamis.

Speaker 4 You know, somebody has to prosecute the case in the political arena other than Sarah Longwell and the bulwark. Somebody needs to make the case that this is what you're getting.

Speaker 4 If you vote for him, you are getting the retribution. you are getting the pardon of January 6th and the retconning of what happened that day.

Speaker 4 You're getting a different meaning that that's a heroic event, a prelude to the revolution, rather than a attempt to overthrow democracy. Somebody has to make that case.

Speaker 3 Right. And that's why 2024, I think, is different than 2016 or even 2020, because there can be no illusions about what a Trump presidency means, who he is, what he is promising.

Speaker 3 I mean, take him at his word when he says these things. In 2016, you could pretend that somehow he would change himself and he would grow into the office.

Speaker 3 In 2020, you could think that he was just a, well, I don't know what people thought in 2020. They figured more the same.

Speaker 3 But after the insurrection, after his behavior, there's nothing that is unclear. about Donald Trump.
I mean, every illusion has been.

Speaker 4 Including what he's promising.

Speaker 3 Exactly. And he is promising it.
This is not what you and I are saying he's promising. This is what he is saying day after day after day.
Ben Wittis, enjoy your time in New York.

Speaker 4 Thank you, sir. We will do it again next week.

Speaker 3 We will do it again next week. Thank you all for listening to today's Bulwark podcast.
I'm Charlie Sykes, and we'll be back tomorrow. We'll also do this all over again.

Speaker 3 The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.

Speaker 3 This is Matt Rogers from Los Culturistas with Matt Rogers and Bowen Yang. This is Bowen Yang from Los Culturalistos with Matt Rogers and Bowen Yang.
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