Thumbprints on a Conspiracy?

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Speaker 6 Another week, another set of indictments, the fourth indictment of Donald Trump.

Speaker 12 Welcome to the latest episode of Trump Trials with our partners from Lawfair, and I am joined by Ben Wittis, editor-in-chief of Lawfair, who is speaking to us from Helsinki.

Speaker 6 Good morning, Helsinki, Ben.

Speaker 16 I'm not in Helsinki anymore. Okay.

Speaker 16 I am in the small Estonian town of Narva,

Speaker 16 which is right on the Russian border. And as I look out my hotel room window, I could literally throw a baseball into Russia right now if I had a better arm than I do.

Speaker 18 You can see Russia from your window.

Speaker 16 In a fashion that is much more literal than Sarah Palin.

Speaker 16 I am probably about a football field and a half from the Russian border. By the way, just on a serious and unrelated note to anything we're going to talk about today, If anybody has any doubt about

Speaker 16 the importance of NATO in defending human freedom, I invite them to come to this town.

Speaker 12 You know, this is something that's occurred to me over and over again.

Speaker 12 We talk a lot about courage, but what must it be like to be, you know, in Latvia, Lithuania, and Estonia with their history of being dominated by the Soviets right across the border and then standing up against them?

Speaker 12 I mean, it's right there.

Speaker 23 This is not theoretical.

Speaker 12 This is not something that they have to deal with in seminars.

Speaker 21 They can look out their window and see where the bear is, right the freak there.

Speaker 16 The town that I am in was bombed into non-existence. There were no old buildings left in it.

Speaker 16 And when Stalin was finished destroying it, he refused to allow Estonians to come back to it and populated it entirely with Russians. So this is a Russian-speaking city in Estonia.

Speaker 16 And to this day, it is populated by entirely, almost entirely, by Russian-speaking Estonians.

Speaker 16 And when you walk down the street, you not only are separated by a narrow river from the Russian city of Ivangorod, and the river, by the way, has a maritime border in it.

Speaker 16 You can see buoys in the river that, you know, if you're on the wrong side of those buoys, you're in Russia.

Speaker 16 But there are also, you know, buildings in this town that were prisoner of war facilities where thousands of people died. And so, yeah, it is really not a joke.

Speaker 7 Well, what's happening here back home, Ben, as you know, is also not a joke.

Speaker 22 I want to get to the Fulton County indictments in a moment, but let's just start with this, because we've had a lot of conversations about the threat of violence, the cloud of intimidation and threat over these charges, Donald Trump pledging, you come after me, I'm coming after you.

Speaker 13 The latest story, which I assume you've seen, a Texas woman has been charged with leaving a voicemail message saying that she would kill the federal judge overseeing Trump's criminal case in Washington, D.C., a woman named Abigail Joe Shree.

Speaker 17 called the chambers of judge Tanya Chutkin and left a voicemail message threatened to kill anyone who went after President Trump.

Speaker 13 Lots of racist comments against Chutkin, who is African-American. The prosecutors say that Shrei called the judge a stupid slave N-word in the voicemail.

Speaker 12 I said, if Trump doesn't get elected in 2024, we are coming to kill you.

Speaker 21 So tread lightly, bitch. You are in our sights.

Speaker 30 We want to kill you.

Speaker 12 It feels as if we are flicking matches on a kerosene fire on a daily basis.

Speaker 26 And

Speaker 26 no one is restraining it.

Speaker 10 I just, your thoughts about all of this.

Speaker 34 And I know it's almost getting old at this point, but to ask, you know, how much leeway are the courts, all of the courts, going to give Donald Trump?

Speaker 20 Because the, you know, threats against jurors, witnesses, and judges are not just theoretical.

Speaker 12 They're actually happening.

Speaker 20 We have people who are making these threats.

Speaker 12 If you pay any attention to what's happened in places like Italy or Colombia, attacks on the justice system, you know, become part of the the culture.

Speaker 23 So, I mean, obviously, we ought to be concerned.

Speaker 29 So, I'm not going to ask you, should we be concerned? I mean, I think we ought to be very alarmed.

Speaker 17 But what do you think, Ben?

Speaker 12 How much leeway are the courts going to give Donald Trump? It's a tough question, isn't it?

Speaker 16 It is a tough question because it's bounded on one side by the need to, you know, not interfere in a presidential campaign, which is, of course, what Trump is accusing the courts of doing.

Speaker 16 And the courts actually don't want to do and the prosecutors don't want to do and so you don't want to do anything that is going to reasonably interfere with his first amendment right to have a campaign and also the first amendment you know rights of people to participate in that campaign on the other hand I'm a genuinely soft on crime guy as a general matter.

Speaker 16 I get very allergic to really tough sentencing regimes. There are a a few exceptions to that, and one of them is this.

Speaker 16 I think there needs to be a zero tolerance policy or something really close to it to things that threaten the integrity of the system. And you know,

Speaker 16 I'm willing to believe in all kinds of second and third and fourth chances for

Speaker 16 people who've done bad things in life. But when you come after a federal judge who's handling a tough case, I really think the system's got to come down really hard on you.

Speaker 16 And one of the reasons that I am more sympathetic to the way the Justice Department handled the post-January 6th stuff than a lot of people are, that is focusing on the violent people and everybody who showed up at January 6th and crossed the legal line.

Speaker 16 is that I think it had a major deterrent effect. And I think for the Justice Department to say, hey, we've got a statute statute of limitations on the political echelon.
And

Speaker 16 what's really important right now is that we deter people from engaging in violent activity associated with Joe Biden's inauguration, associated with the 2022 campaign, associated with these indictments of Donald Trump, right?

Speaker 16 And we've had very little actual

Speaker 16 violent activity. And that was not a

Speaker 16 foregone conclusion, right that is partly and we will never know how much that's partly the result of deterrence from 1200 January 6th prosecutions I think every time somebody threatens a federal judge you know the FBI needs to be at their door as quickly as possible And that's true in low-profile cases, by the way, as well as high-profile cases.

Speaker 16 You know, people forget this, but there are folks who've had federal judges killed.

Speaker 4 And

Speaker 16 there is a famous case of somebody who actually had a, it was a white supremacist who actually had a plot to kill a federal judge and ended up killing her whole family.

Speaker 16 And I just think the system doesn't work if people fear for their lives for participating in it. And, you know, I think the system has to be very severe about this sort of thing.

Speaker 13 I wish I shared your optimism about the effectiveness of the deterrence. I wonder whether or not we're simply seeing a hiatus because the rhetoric is ramping up.

Speaker 36 You have lone actors like the heavily armed MAGA guy from Utah who was just killed by the FBI.

Speaker 7 I mean, I wonder whether it would help at some point if even if they cannot bring themselves to criticize Trump for his actual crimes, if other Republicans would stand up and say this would be a moment for you to stop making threats, stop pledging retribution, tone down your rhetoric.

Speaker 7 You would think that at minimum if they did that?

Speaker 16 As the excellent Will Salatan article and sort of mini book and podcast series reflects, Lindsey Graham evolved into somebody who threatens violence. And that needs to stop.

Speaker 16 So look, I don't mean to say that the deterrence was total or was permanent. Just think what might have happened had whatever deterrent effect we saw not been present.

Speaker 16 You know, we had a bomb threat against the Brookings Institution directed at my then law affair colleague Susan Hennessy, you know, who's now a Justice Department official.

Speaker 16 And, you know, the FBI went and arrested the guy who was in New Orleans and has subsequently, I believe, is now deceased. He died while awaiting trial.

Speaker 16 You know, if people are afraid to participate in the system, the system grinds to a halt. And there just has to be an ongoing.

Speaker 16 And to his credit,

Speaker 16 if you listen to Merrick Garland's one-year anniversary of January 6th speech, he focuses on this issue like a laser beam.

Speaker 16 And it's not just political people, you know, he was talking about or judges, it was flight attendants, right?

Speaker 16 At the time, there was an epidemic of attacks on flight crews over mask requirements. And he took the view, and I just really agree with him, that the system needs to take this stuff really seriously.

Speaker 16 And so I think Judge Chuckin's office deserves credit for taking her safety seriously.

Speaker 16 And the FBI and the Marshals, I don't know who did the investigation, deserve credit for bringing it to a rapid conclusion.

Speaker 16 And it needs to be, you know, these cases need to be resolved in a very firm way.

Speaker 4 Well, I agree.

Speaker 9 Now, I want to get into the details of the case because on the Trump trials, we want to talk about the legal issues, what happens in the courtroom, but it's impossible not to talk about the political context, at least briefly.

Speaker 30 I mean, now we're at this moment, right now, here, you know, August 17th, Donald Trump faces 91, I'm reading from Keith Boykin's tweet here, 91 criminal charges, 26 sexual assault allegations, four separate indictments.

Speaker 13 He's been impeached twice.

Speaker 12 His company has been convicted.

Speaker 22 His fake charity has been shut down.

Speaker 7 But as we know, Trump is still the the dominant figure in the Republican Party. He leads in the latest Puinipiak poll.
Trump leads DeSantis by 39 points.

Speaker 14 He has 57% of Republicans supporting him over everybody else in the field.

Speaker 12 63% of Republicans still want Trump to run again.

Speaker 31 He's got a 70% approval rating among Republicans. But

Speaker 12 there are also numbers suggesting, And this is where I wanted to get your take on this, because I think that we become inured to this culture of LOL.

Speaker 26 Nothing matters.

Speaker 13 Nothing nothing ever makes a difference.

Speaker 7 In fact, this new AP poll out shows that nearly two-thirds of Americans, 64%, say they either definitely or probably would not support Donald Trump in a general election.

Speaker 7 I mean, we've been navel-gazing and focus grouping about, you know, the MAGA voters out there. But meanwhile, nearly two-thirds of Americans are saying that they are done with Donald Trump.

Speaker 20 And also, you break down these numbers.

Speaker 31 And in terms of the number of people who say that Trump's done nothing wrong, that he's completely innocent.

Speaker 10 Aaron Blake from the Washington Post, you know, looked at the poll numbers and said, look, basically, about one in five Americans say they believe Trump did nothing wrong in each of the four legal cases.

Speaker 12 And if you ask, how many people say that Trump did wrong in none of them, that he's completely innocent, you're down to about 7% of Americans think that Trump is just a completely innocent man.

Speaker 18 And more interesting, only 16% of Republicans say he did nothing wrong.

Speaker 6 So I'm just looking at some of these polls today.

Speaker 12 Quinnipiac, 54% say they want to see him prosecuted. Even a Fox poll says that a majority of Americans think that he did something illegal here.

Speaker 27 He's got a 35% favorable rating.

Speaker 20 So I think that at the moment, we ought to challenge the conventional wisdom that nothing matters or this constant narrative that every time he gets indicted, he gets stronger.

Speaker 14 He may get stronger in the Republican Party, but this is not good news for Donald Trump in 2024.

Speaker 2 Yes.

Speaker 16 So I am not a political analyst, as you know, and the bulwark has about 10 people who are better positioned, including you, to address the politics than I am. I will just say the following.

Speaker 16 I have to believe, as a matter of democratic faith, that four indictments has to matter.

Speaker 16 You're not talking about, all right, the first one you could say, well, who hasn't paid off a porn star? And by the way, it's not that different from the Monica Lewinsky stuff, right?

Speaker 16 Paying off a porn star and hiding it is kind of like lying under oath about having an affair with an intern. It's not exactly the same thing, but it's in the same ballpark, right?

Speaker 16 And we tolerated it with Bill Clinton, who was never charged, reached a kind of effectively a plea deal.

Speaker 16 And so, like, we didn't think of him as disqualified, so we shouldn't think of Trump as disqualified. I deeply disagree with that, by the way.
And I actually

Speaker 16 was not

Speaker 16 really totally okay with the disposition in Clinton's case either.

Speaker 16 But I can understand how if it were just that one, you shrug it off and you say, okay, yeah, so maybe he, maybe he tripped over the line in that one, but I still like him better than Joe Biden. Yeah.

Speaker 16 And then you have the second one.

Speaker 16 So the second one is heartland kind of Ben Wittis national security territory mar-a-lago docs yeah the mar-a-laga docs case this is like core national security law there isn't a major one of these cases that i have not been at least tangentially covering in the last 20 years this case is nothing like any of them but i totally understand how somebody who isn't steeped in illegal document retention, Espionage Act stuff could say, okay, well, Joe Biden had some documents, Mike Pence had some documents, Donald Trump had some documents.

Speaker 16 They all do it, right? It's kind of, and by the way, John Deutsch, and there was the whole thing with David Petraeus gave code word classified documents to his mistress, right?

Speaker 16 And so, you know, I can understand how somebody who does not has not really read this document next to

Speaker 16 20 other cases of people mishandling classified material material could not understand that it's not just different in degree, but different in kind.

Speaker 16 But then you get to these third and fourth indictments, where

Speaker 16 we've never had a president be accused of trying to overturn the results of an election by illegal means before.

Speaker 16 And these are two separate prosecutorial offices who are both making that same core allegation through different legal means, very different indictments in many ways, but the core of it is the most profound affront you can imagine to not just this democratic system, but any democratic system.

Speaker 16 And I just don't believe at the end of the day that the American populace as a whole cares so little about democracy that it is willing to look at these four indictments together and shrug with an LOL, nothing matters.

Speaker 16 I'm appalled and shocked that 40% of the country

Speaker 16 actually considers it a virtue or something.

Speaker 16 That alone is a deep threat to our political way of life over time.

Speaker 16 But in the immediate sense of the 2024 election, I just don't believe that we are in the land of people not caring, at least with enough swing voters to the extent that there's such a thing anymore, that Donald Trump doesn't get to a point of non-viability.

Speaker 16 That is an article of Democratic faith for me.

Speaker 16 You know, my faith may be as misguided as many faiths are, but I just don't really know how I would go on if I didn't do that.

Speaker 6 The other question is whether any of this gets better.

Speaker 12 I mean, there's two questions.

Speaker 29 You know, obviously, look, the mega base is not going to to move, so let's just set them aside.

Speaker 23 Then you have the soft Republicans, the maybe Trumpers, the suburbanites who,

Speaker 12 you know, rented themselves out to the Democrats, those swing voters in places like Georgia and Arizona and Pennsylvania and Michigan and Wisconsin.

Speaker 7 Trying to imagine how these cases bring any of them home.

Speaker 12 The only scenario that I can see that would be pro-Trump in terms of his prospects would be that it would galvanize an even bigger turnout in rural areas.

Speaker 7 But I'm skeptical about that as well, because I'm not sure that there's much that will happen between now and November of 2024 that will make Donald Trump look better.

Speaker 21 I mean, he could, of course, be acquitted.

Speaker 12 I mean, there could be this dramatic moment where the cases fall apart.

Speaker 7 But it seems very, very unlikely to me.

Speaker 17 And also the nature of the cases.

Speaker 12 One of my concerns was originally that we would go small or go petty. That was one of my concerns about the Alvin Bragg charges, that people would think, okay, that's it.

Speaker 13 You're You're going after him for this, you know, four-year-old case of paying off a porn star.

Speaker 29 Are they going to go after him for some technical violation?

Speaker 12 But you look at the charges, and they're big.

Speaker 14 Conspiracy, fraud, obstruction, racketeering.

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Speaker 29 So let's talk about this Fulton County indictment.

Speaker 7 You guys at Lawfair have been all over this.

Speaker 12 This is a document of extraordinary ambitions.

Speaker 13 And you said, we don't know yet whether it's touched by prosecutorial genius or a massive overreach.

Speaker 12 Well, which is it? What do you think?

Speaker 16 So that was an article with a giant multi-person byline, but I did write those lines and I actually agree with myself about that.

Speaker 31 That's always a good thing.

Speaker 16 I have questions about the institutional capacity of Fonnie Willis's office to handle a case of this magnitude. They've never done anything like this.

Speaker 16 It's not like you know, the United States Department of Justice taking on a mega case. There's never been a mega case in the history of the Fulton County DA's office.

Speaker 16 And so, you know, when you see a case of this kind of just extraordinary ambition, it is a nationwide case.

Speaker 16 It involves conduct all over the place, including in the halls of power in Washington, including in you know, seven states around the country and the District of Columbia.

Speaker 16 I mean, it's a crazily broad document for a local DA. And I'm not ragging on Fonnie Willis here, any local DA.

Speaker 16 That said,

Speaker 16 I do think

Speaker 16 that

Speaker 16 the idea of thinking about Donald Trump in the language of racketeering has a lot to be said for it. There's a reason why when you

Speaker 16 and A.V. Stoddard did your podcast yesterday or a few days ago, sorry, time all blurs together.

Speaker 8 It was yesterday.

Speaker 16 You were it was yesterday?

Speaker 4 Yeah.

Speaker 17 No, I'm sorry. It was two days ago.

Speaker 4 I'm sorry.

Speaker 13 I don't even have the time zone.

Speaker 16 Yeah, I mean, it's also just who's slept in the last 72 hours. But,

Speaker 16 you know, there's a reason why it made sense to play the godfather music. It was funny, but it was funny because it made sense, right?

Speaker 16 And that aspect of the indictment is speaking to something that's very deep in the way we understand what Donald Trump did and the kind of organization that he ran.

Speaker 16 Just as when Jack Smith brought his case that alleged a conspiracy against rights, a lot of people scratched their head and said, wait a minute, that's a novel legal theory.

Speaker 16 And the people who actually know how that law has been applied said the opposite. That's well-trodden territory, and that's exactly what he did.

Speaker 16 He conspired against the right to vote and have your vote counted. And so I have mixed feelings about this.
Part of me is worried that

Speaker 16 that office and that court system just may not have the institutional capacity to litigate this case in an effective way.

Speaker 16 And there is a case called the YSL case that's been hanging around Fulton County for it's been in jury selection for months and months and months.

Speaker 16 It's not clear to me that that office is really in a position to litigate this effectively. That's

Speaker 16 I also respect it. I think, you know, she is a person who decided that it was important for her office to put down an indictment that told the truth in a kind of holistic way.

Speaker 16 And that took her from the most granular, someone knocked on Ruby Freeman's door and terrorized her, to someone stole those computers in Coffey County, to the President of the United States organized fake electors in seven states, right?

Speaker 16 From the very grand to the really local and really tawdry. And I have to say I respect that.
I have a foot in both worlds about it.

Speaker 16 And I guess what I think is if she pulls it off, It is the indictment that is most touched by a prosecutorial genius. If she can't pull it off, it's a wild overreach.

Speaker 16 And, you know, it would have been better if she hadn't brought it.

Speaker 7 I like the way you put it, that she shows she has a monster of a hand, but now she has to play it.

Speaker 12 I want to drill down into some of these other issues, the issues that are coming up, what happens next.

Speaker 26 But let's talk with one of your colleagues first, Anna Bauer, correspondent for Lawfair, who was in the courthouse in Fulton County on Monday.

Speaker 12 Well, Fanny Willis was presenting evidence as witnesses arrived to testify when the grand jury voted on the indictment.

Speaker 26 And

Speaker 7 she was there the moment the indictments were handed up to the presiding judge.

Speaker 12 So that was an incredible day, wasn't it, Anna?

Speaker 42 It was an incredible day. It was also an exhausting day.
I think it was 11.30 when they ultimately had the press conference to announce the indictment.

Speaker 17 So why was it so late?

Speaker 33 Give me the take on that because that seemed a little bit unusual.

Speaker 28 They had that false start when they posted it early in the day. Do they feel the need to get it out that day?

Speaker 6 But why would you do it at 1130 at night?

Speaker 42 So I think that it has something to do with the false start.

Speaker 42 So, just for listeners who maybe missed that, Fonnie Willis was widely expected on Monday to start presenting evidence to the grand jury that was sitting that day.

Speaker 42 And she started to present evidence and was calling in witnesses. Sometime around midday,

Speaker 42 the docket started to show charges against Trump. And it was only up very briefly, but a Reuters reporter, you know, caught a screenshot of it and sent it out to the world.

Speaker 42 And all the reporters in the courthouse, everyone was freaking out. People were texting me, like, what is going on? What's happening?

Speaker 42 The district attorney's office denied that Trump had been indicted. And the clerk sent out this email saying that it was a fictitious document.

Speaker 42 So it was after that that more witnesses who were scheduled to be on Tuesday started coming in on Monday instead.

Speaker 42 And I think what happened is they got nervous that, you know, this had been reported on and that maybe there'd be some argument down the road from Trump's team if they sent the grand jurors home and they were exposed to, you know, a lot of reporting about this document that had been released and that kind of thing.

Speaker 42 So they kind of just wanted to go ahead and, you know, squash that conversation outright by just keeping the focus and momentum on getting the indictment done.

Speaker 42 So they brought brought in the witnesses and it just so happened that it took them, you know, until 8.30 to actually deliver the indictment because they continued on.

Speaker 42 And then after that, they had to upload this long document and get it filed into the system.

Speaker 42 So that's what was up with the 11.30 p.m. press conference, but it was quite a day.

Speaker 13 One other detail, you mentioned you were talking about the grand jury members who now have been sent home.

Speaker 18 a far-right pro-Trump website has published the names and the addresses of these grand jurors at this point are these names public in Georgia is is there any sort of a protective order in place what's going to happen now Yeah, I think that's something that folks are very concerned about.

Speaker 42 And we were concerned about it, you know, before the indictment was published because we had an idea that these names would be on the indictment.

Speaker 42 The reason why those names are on there is because it's required by state law in Georgia's code.

Speaker 42 You know, it says that the indictment has to have the names and there's been case law saying that the indictment would be defective if it did not include the names of the jurors on it.

Speaker 42 So Fonnie Willis's office was aware in advance that these grand jurors, you know, they would have to keep the names on there and there's no mechanism for redacting them.

Speaker 42 And if they did redact those names on the public document, there was a chance that, you know, the indictment could be quashed on that ground.

Speaker 42 So unfortunately, you know, they had to put those names on there. And this is the result.
I am sure that there are investigators who are looking into this.

Speaker 42 I don't know what the security situation is in terms of taking any steps to protect the grand jurors who have been now doxed, but it is really concerning.

Speaker 13 So you're going to be there, I assume, for the surrender and the enrainment?

Speaker 42 Yes, I will.

Speaker 42 I mean, I don't know how I will survive all 19 of them if they're all in one week, because as you know, people have been lining up overnight to see these arraignments, but I will certainly be.

Speaker 12 They're not going to all show up on a bus together, right?

Speaker 4 I mean, they don't have to be arraigned together.

Speaker 7 Jenna Ellis might not want to be in the same back seat with, I don't know, Jeffrey Clark.

Speaker 42 Oh, yeah. I don't know.
I mean, she said in her recent order or motion that they wanted to do all the arraignments the week of September 5th.

Speaker 42 But as people know from the press conference, it's a two-step process in Georgia. You first do the surrender to the sheriff's office, and that's where the booking and the fingerprinting will occur.

Speaker 42 And we know from the sheriff's comments,

Speaker 42 smug shots. Yes, the sheriff has said that he intends to treat all of these folks as any other defendant.

Speaker 42 And the word on the street here is that Trump may show up the day of the Republican debate on the 23rd.

Speaker 36 That's just speculation, right?

Speaker 42 No, these are just rumblings that are kind of, you know, around the courthouse and around Atlanta that people are talking about. That's totally speculation, but

Speaker 42 keep your eyes peeled for that because it may be, it seems very Trumpian, right, to try to take attention away from the Republican debate by showing up for his surrender.

Speaker 18 Yeah, I think there's a lot of too clever by half thinking going on there.

Speaker 12 So going back to this, the sheriff has said that they will take a mug shot.

Speaker 6 Is there any reason to believe that he won't do that?

Speaker 42 No, no reason to believe. And I mean, because he's made this public statement, I feel that he's kind of...

Speaker 4 So it's going to happen.

Speaker 42 Yeah, I think it's going to happen. And important to say that, you know, in the federal system, when there's a mugshot, it's not released to the public.
But in the state system, it will be released.

Speaker 42 So we should have mugshots of all of these folks once they're surrendered.

Speaker 14 All right.

Speaker 32 You also did some great reporting on what was going on in January 2021 in Coffey County, Georgia.

Speaker 23 This is an interesting sort of sidebar to the big event.

Speaker 31 And this is a small rural county where a group of election officials and Republican operatives, what did they do?

Speaker 6 They went in and got access to the most sensitive voting software and equipment in the state.

Speaker 12 I mean, they scanned it, they copied it.

Speaker 17 And you wrote, it's a story of how in the name of preventing election fraud, this group appropriated county election systems and in the process made voting machines there and elsewhere less less secure against future attack and came to be charged with conspiring to commit election fraud themselves.

Speaker 18 So just take me inside the thinking.

Speaker 34 Why Coffey County? This is a county that Donald Trump won big.

Speaker 13 Why did this happen there?

Speaker 7 What were they looking for? What did they get?

Speaker 42 Charlie, it's a complicated story. And so I don't want to get too in the weeds with it because, I mean, I could talk about it all day.

Speaker 42 But Coffee County, you know, it's a county that Trump won by a landslide. It's a very deep red county in southern Georgia.

Speaker 42 And these election officials and GOP operatives were very, you know, friendly towards Trump. They seemed to have believed that there was something wrong with the Dominion system.

Speaker 42 Although they insisted that their system and their outcome, you know, in the results was fine, they still kind of insisted that there was something wrong.

Speaker 42 And so when they tried to do a machine recount, there was this 51 vote discrepancy with their election night recount, which of course would not be enough to change the outcome of the election and really did not matter in Coffey County, especially because, you know, Trump won by a landslide.

Speaker 42 But somehow this just snowballed into, you know, proof that there was something wrong with the machines because Coffey County could not replicate its election night results.

Speaker 42 The Secretary of State's office later found that that was a result of human error. It did not have anything to do with the machines.

Speaker 42 But they went on this, you know, quest to bring this to the attention of the Trump campaign.

Speaker 42 And all of a sudden, you see in the late November, December period in 2020, all of a sudden, Coffee County starts showing up in all of these campaign documents.

Speaker 42 And then some of these folks who would eventually go in and have unauthorized access to the election systems.

Speaker 17 So, who is pushing this?

Speaker 22 Was this Rudy Giuliani?

Speaker 15 Was this his plan to get the voting machines?

Speaker 26 I mean, was this Jenna Ellis?

Speaker 9 Was this Sidney Powell?

Speaker 6 Who was going to get their hands on this?

Speaker 7 What were they going to do with it?

Speaker 42 It's a little bit unclear right now who was truly the kind of mastermind or if there even was a mastermind behind all of this.

Speaker 42 But I will say that, you know, if people will think back to that 2020 post-election period, there were plans to access machines because Trump's team thought that they could get evidence of the alleged fraud, which was obviously not true.

Speaker 42 But they thought if they could get access to these machines, they could show that there was fraud.

Speaker 42 So Sidney Powell had a plan to, you know, use an executive order to have the Department of Homeland Security seize voting machines.

Speaker 42 And then we know from reporting and deposition testimony before the January 6th committee that Giuliani wanted to get voluntary access to machines.

Speaker 42 There were a lot of people in that inner circle who wanted to get access to these machines. And we know they had at least some contact with some of these folks in Coffey County.

Speaker 42 And Sidney Powell actually paid for the work of copying the voting machines.

Speaker 42 Yeah, so it's a tangled tale, but if you read the piece that we wrote and are reporting on it, it shows that there's a lot of connections there that I think people don't realize.

Speaker 42 And that's why it shows up in the Fulton County indictment.

Speaker 12 Well, I mean, one of the questions that people have had is, you know, so what?

Speaker 22 What is the there there?

Speaker 15 So they came and they looked at the stuff, they didn't find anything.

Speaker 11 But I think you make the point that these events could have a long tail.

Speaker 13 By making voting systems and voter data available, they have potentially made these systems less secure.

Speaker 7 How does that work?

Speaker 34 I mean, you're basically saying that the allegation is that by doing what they have done, they've actually made voting fraud more possible than it was before.

Speaker 42 So what they did when they went in is they had a forensics team who copied our elections system software as an exact replica, right?

Speaker 42 And usually that software is held under lock and key for a reason, because you don't want bad actors to be able to go in and examine that software, check it for vulnerabilities, figure out the best ways that it could be manipulated, right?

Speaker 42 So here, what's happened is they took an exact replica of that software and put it on a ShareFile site that was then distributed or accessed by multiple people in several states according to court filings and access logs that we've reviewed.

Speaker 42 And the question is, how many people was this distributed to? Who got their hands on it? And

Speaker 42 what will be the future vulnerabilities or threats because potentially bad actors are now able to examine this stuff.

Speaker 42 And the Secretary of State's office in Georgia has said that they do not intend to do an update to the software before the 2024 election.

Speaker 42 So that same software that was accessed and distributed is the same software that will be used in Georgia in the 2024 election as well.

Speaker 42 So it's concerning also just from a disinformation perspective, because as we saw in instances like Antrim County, Michigan, when voting systems were accessed, there are ways that by looking at this stuff, people can, you know, misrepresent what's going on with our systems, make these reports that include disinformation, but seem to have some kind of legitimacy if you don't really know what you're talking about, right?

Speaker 42 So there's multiple ways that this kind of thing is dangerous. And there are reasons why we keep our voting software under lock and key.

Speaker 26 One last question.

Speaker 12 Speculatively, the prosecutor wants to have this trial begin in March, March 4th. On a scale of 1 to 100, what are the chances that that will actually take place in March of 2024?

Speaker 32 What do you think?

Speaker 42 I think this is not going to be the answer that people want to hear, but I would say it's about zero.

Speaker 29 Yeah, I was going to go for that.

Speaker 42 Look, in Fulton County, RICO cases take a very long time to go to trial. You know, usually you're looking at between one to three years to go to trial for a RICO case.
This is a massive case.

Speaker 42 It is shocking that the district attorney has even suggested that the case could go to trial by March because it's not going to happen.

Speaker 9 All right, Anna, we will talk to you again after the multiple perp walks, after more than a dozen perp walks, and

Speaker 7 get your take. Thanks.

Speaker 22 Thanks for joining us today.

Speaker 30 I appreciate it. Okay.

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Speaker 7 All right, we are back with Ben Wittis.

Speaker 20 So, Ben,

Speaker 17 there are so many questions now around this case and around Jack Smith's case.

Speaker 31 And I want to ask you about the whole Twitter thing in a moment, but one issue that we're going to have to confront, I think, in the short term, is the question about whether or not this stays in Georgia state courts or whether it goes to the federal court.

Speaker 23 Mark Meadows, one of the co-defendants, has already moved to have the case transferred because, of course, he says he was acting as a federal official from a practical point of view, at least from my point of view.

Speaker 21 One of the big differences between state court and federal court is the state court trial would be televised, the federal court trial would not be televised.

Speaker 13 But give me your sense about these arguments because at least in Mark Meadows' case, I have to admit, it doesn't sound frivolous to me that he's doing this.

Speaker 16 I don't think it's frivolous in any of the cases. I think those people who were federal officials are probably entitled to removal to federal court.
That is not a punishment to Fonnie Willis.

Speaker 16 It's a very old principle in federal law that you don't want states to be able to harass federal officials by indicting them or by trying to regulate the way the federal government does its business by dragging federal officials into court.

Speaker 16 And while we can't tell states what to criminalize and what not, we can at least say, okay, if you're a federal official, you're indicted by a state official for matters related to your federal responsibility, you get to have that trial done in federal court.

Speaker 16 So I think that it is likely that Donald Trump, Jeffrey Clark, Mark Meadows, and maybe a couple others will be removed to federal court.

Speaker 16 I don't think that's a bad thing, actually, and it does have some negative consequences for publicity and for televising and proceedings, but I think it is likely to happen.

Speaker 16 And I'm not sure it's the worst thing in the world, especially because of some of the institutional capacities in the Fulton County court system. Fonnie Willis will still be litigating it, but.

Speaker 7 This is a technical question.

Speaker 14 So it goes to federal court.

Speaker 12 It will still be Fonnie Willis and her team that will be prosecuting, and they will still be prosecuting it under state law.

Speaker 29 Is that correct?

Speaker 30 Correct.

Speaker 7 Okay, so it's a federal court, but they will be adjudicating a case predicated on state law.

Speaker 16 Under Georgia state law. And if Donald Trump is convicted, he is convicted under Georgia law, not under federal law.
It doesn't turn it into a federal case. It merely changes the trial venue.

Speaker 16 It's a weird quirk, but it's very old.

Speaker 7 So let's talk about Rico for a moment.

Speaker 12 I mean, there is the sort of Greek tragedy element that Rudy Giuliani, who had built his reputation using the racketeering law against the mob in New York, now finds himself facing it.

Speaker 12 But it also is a very powerful weapon by prosecutors, especially in a state where there is a five-year mandatory minimum sentence and no prospect of a presidential pardon.

Speaker 30 So how likely is it that some of these other 18 co-defendants will sort of have a come to Jesus moment and realize that they need to cooperate with prosecutors?

Speaker 12 Is that part of the strategy, do you think, to charge that many people at the same time?

Speaker 16 I think it is. So, first of all, you've alluded to something important, which is that the Georgia state RICO law and the federal RICO law are not the same law, right?

Speaker 16 They have a name in common, but the Georgia law is much broader, and there's a reason why Foni Willis has said publicly that she likes it as an instrument, which is that it's extremely powerful.

Speaker 16 And it's kind of like a very souped up conspiracy statute. She has used it to prosecute teachers in the Atlanta public school system.
She has a bunch of other RICO cases pending.

Speaker 16 And one of the things that it does, as you've alluded to, is it gives her the, and this gets into my left-wing distaste for tough on crime stuff I don't like mandatory minimums but in a case like this leaving aside my preferences this is a heck of a hammer that she's got because some of the people that she's indicted are fairly low-grade

Speaker 16 participants in this conspiracy. You know, the election official who let people into the Coffee County election official to steal equipment, right?

Speaker 16 Some GOP state officials, right?

Speaker 16 And you say, would these people in a federal court indictment likely get five years, much less a minimum of five years? And the answer is no.

Speaker 16 They're looking at this and saying, or at least their lawyers are saying to them, you got to think real hard about whether you're going to trial about this, because if you go to trial and you lose, you are going to prison for a minimum of five years.

Speaker 16 And, you know, five years is a long time, not in the violent crime world, but in the white-collar crime world for a relatively low-grade offender who can plead out.

Speaker 16 And so I think, yeah, over the next few weeks and months, you are going to see a bunch of people plead out of this case.

Speaker 16 There are 18 codefendants in addition to Donald Trump, and a lot of them have been given a heck of an incentive to reach an understanding with Fonnie Willis.

Speaker 7 So one of the really interesting things about this is the way that it makes it clear

Speaker 12 the role of the fake electors and going right after the fake electors scheme, which obviously did not take place in Georgia.

Speaker 12 And to your earlier point about the deterrent effect of the January 6th prosecutions, I mean, this prosecution and maybe others that will follow certainly also send a message around the country to election officials and activists.

Speaker 13 Be careful what you do because there might be a very serious legal reckoning.

Speaker 12 Because I don't think it's beyond the realm of possibility we will face the same kinds of stress tests in 2024.

Speaker 7 So there's already talk of prosecution of the fake electors in places like Arizona.

Speaker 12 I don't know why in Wisconsin, they wouldn't do the same thing or in some other states.

Speaker 13 I don't know whether you've had a chance to see that MSNBC got a hold of a videotape of, of all people, Roger Stone, immediately after the election, laying out the plot for fake electors.

Speaker 12 I mean, he's caught on videotape. I mean, what a surprise that the original dirty trickster, sleazoid Roger Stone would have his fingerprints all over this.

Speaker 22 This is another element of this that I thought was really interesting, that it raises the question, how are forged fake elector documents any different than other kinds of electoral fraud that Republicans actually claim to be indignant and upset about?

Speaker 16 They're not.

Speaker 16 And I noticed in your conversation with Anna, you focused on this part of her article in which she noted the irony of people who were complaining and fretting about election fraud being indicted for, among other things, conspiracy to commit election fraud.

Speaker 16 You know, everybody talks about the downside of litigating these cases and indicting these cases in an election cycle.

Speaker 16 But I think there's deterrent value to litigating these cases in an election cycle. Absolutely.
And I don't mean you're indicting it to you know, force Donald Trump out of the election.

Speaker 16 I'm not talking about that.

Speaker 4 But I am saying

Speaker 16 you can't do this as Donald Trump or anybody else without a lot of people who are willing to ride shotgun with you.

Speaker 16 And for them to see that the people who rode shotgun are all going to go to prison, you know, that Rudy Giuliani is in a world of hurt right now.

Speaker 16 There are six unindicted co-conspirators at the federal level who are not unindicted anymore at the Georgia level. they're going to face indictment at the federal level.

Speaker 16 And, you know, one of the messages that this thing sends is: in your constellation of fears as a Republican Party operative or lawyer, you have feared Donald Trump too much and you have feared the law too little.

Speaker 16 And these cases change that calculation for people.

Speaker 16 Just as when you call a federal federal judge and leave threatening voicemail messages or call the Brookings Institution and leave threatening voicemail messages full of hatred, you are fearing something too much and the law too little, right?

Speaker 16 And deterrence in the criminal justice system is about changing people's sense of fear and greed and what threatens them and what doesn't.

Speaker 16 And for somebody to be reminded in the middle of an election cycle or at the beginning of an election cycle, there are things that Donald Trump might ask you to do or that the Republican Party establishment in your county might expect you to do in the name of preventing voter fraud.

Speaker 16 And let's be honest, what we mean by voter fraud is what we're afraid black people are going to do in Fulton County. And so I want you to commit some voter fraud to prevent that, right?

Speaker 16 And you should be really, really afraid of complying with that request, not just because it's racist and horrible, but because you're going to get indicted.

Speaker 16 And one of the shocking things about 2020 was how unafraid people were of the law.

Speaker 16 And one of the values of having these prosecutions going on right now is that people in election campaigns are reminded that there's got to be a limit to what you're willing to do.

Speaker 16 And it is possible to

Speaker 16 fear Donald Trump or fear your community too much and fear

Speaker 16 whether you want to think of it as Jack Smith or Fonnie Willis or Merritt Garland or Tanya Chutkin too little.

Speaker 16 You got to change people's sense of that calculation.

Speaker 7 I think this is an incredibly important point.

Speaker 22 Okay, one final question, not on the Georgia indictment, but this is a development in the January 6th case.

Speaker 22 We found out in the last couple of days that Jack Smith has gotten access to direct messages or DMs that Trump sent privately through his Twitter account.

Speaker 21 Actually, they got all kinds of stuff, deleted tweets, draft tweets.

Speaker 7 New York Times reported it's unclear what information he was messaging, but it's kind of a, it is a revelation that Trump had used that because he's famously been cautious about using written forms of communication in his dealings with aides and allies.

Speaker 12 But again, this access to the data, which includes these draft tweets, these deleted tweets, came after this apparently just really knockdown fight with Twitter's attorneys in January and February.

Speaker 26 And, you know, before the prosecutors got everything, the federal judge overseeing the matter, this would be Judge Beryl Howell, wondered in this blistering analysis whether Elon Musk, who went all out to protect Donald Trump, whether Musk was actually just trying to, these were her words, trying to cozy up to Trump by resisting the special counsel's demands.

Speaker 7 Are these extraordinary steps to make Donald Trump feel like he's a particularly welcome new, renewed user of Twitter?

Speaker 17 Judge Howell asked.

Speaker 12 So give me your take on why Jack Smith wants this Twitter data and what could be in there.

Speaker 16 You know, anytime you're dealing with personal communications of a target or defendant of an investigation, you want all their comms, right?

Speaker 16 So that Jack Smith would want them is completely unsurprising. I don't want to speculate about about what they are because I don't have any more idea than anybody else.

Speaker 16 The shocking thing about this story is, first of all, that Donald Trump is dumb enough to use Twitter DMs as opposed to any of a million more secure ways of communicating.

Speaker 16 Just note to listeners, don't commit your crimes on Twitter DM, use Signal.

Speaker 16 And secondly, about a month before this battle happened, Elon Musk fired as his deputy general counsel my friend Jim Baker, who used to be the general counsel of the FBI under Jim Comey.

Speaker 16 And Jim Baker is a truly superb lawyer who, among other things, was responsible for the Twitter litigation strategy that forced Elon Musk to pay $44 million for a company he had rashly bid on and then decided he didn't want to buy.

Speaker 16 Elon Musk fired Jim in, I believe, in early December, and this issue arose in January and February. I can promise you that this would not have happened had he not fired all of his good lawyers.

Speaker 16 And big companies do not

Speaker 16 get into knockdown drag out fights with federal judges and get sanctioned in order to protect criminal former presidents under normal circumstances, right?

Speaker 16 And so this is a creature of Donald Trump, but it's also a creature of Elon Musk's acquisition of Twitter and his purge of people who were there to keep the company out of trouble.

Speaker 16 And so within a month of firing Jim Baker, he is in a battle with Beryl Howell, a very fine judge on the district bench here in Washington, he says from Estonia, that

Speaker 16 was completely avoidable and is just a reflection of the general mayhem that Musk and the politically inflected general mayhem that Musk was causing

Speaker 16 at the time at Twitter. By the way, very satisfying for me to see him get into trouble like this for this because he, of course, I have been banned from Twitter.

Speaker 36 It's personal.

Speaker 16 It's a personal thing at this point.

Speaker 12 Wouldn't it be ironic if the one thing that really tied Donald Trump most directly to the conspiracy to overthrow the government was Jack Smith finding his thumbprints on his Twitter account.

Speaker 13 Literally, the thumbprints, if he was undone by his thumbs.

Speaker 16 Remember, also, I mean, you're sort of joking, but not entirely.

Speaker 4 Remember that. No, I'm not.

Speaker 16 Remember that Donald Trump Jr.

Speaker 16 had, I believe, Twitter DM exchanges with Julian Assange, you know, that showed up in the Mueller investigation.

Speaker 16 And so, you know, people who are way too engaged on twitter tend to use twitter dms for things that you should be using more secure means of communication for that don't leave records that are unencrypted that are and so you know it it got donald trump jr in some trouble with and roger stone i believe had twitter dms with gooseifer too i may be misremembering that you know you live by twitter you die by twitter Wouldn't that be the great epitaph for the Trump presidency?

Speaker 25 The one thing, and in the end,

Speaker 33 what brought down Donald Trump?

Speaker 32 His thumbs on Twitter.

Speaker 12 I just think we need to leave it there. This latest episode of Trump Trials, live from Narva, Estonia, with our good friend Ben Wittis.

Speaker 7 Ben, have a great trip.

Speaker 29 We want to hear all about it when you get home.

Speaker 16 Yeah, we'll debrief. It was great to talk to you, and we'll do it again next week.

Speaker 37 I'm going to need a really deep, deep debrief when you come back from this particular adventure, including your various special military operations.

Speaker 6 And thank you all for listening to the latest episode of Trump Trials with our partners from Law Affairs.

Speaker 14 I'm Charlie Sykes.

Speaker 23 We will be back tomorrow, and we will do this all over again.

Speaker 13 The Bulwark podcast is produced by Katie Cooper and engineered and edited by Jason Brown.

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