The Power of Whataboutism

Could today be the day? Could this week be the week that Donald Trump is indicted? Could it be next week? Welcome to a new edition of the Trump Trials with our partners from Lawfare. Ben Wittes from the Brookings Institution joins me on today's podcast.
First of all, good morning, Ben. How are you? I am better than either Donald Trump or Hunter Biden.
Okay. Well, I want to talk about both of those cases.
So as we are speaking, the grand jury is meeting in Washington, D.C. could vote as early as today on an indictment.
Apparently, the Trump folks think that that is imminent. Of course, he received the target letter 11 days ago.
Also, we're getting reports that Trump's lawyers are meeting with the Department of Justice, with members of Jack Smith's team, which of course is their right. It's one of those last minute gambits to try to talk the Department of Justice out of indictments.
So those generally do not succeed. Before we get into it, and I do want to talk about what happened with the Hunter Biden case tomorrow, just sort of wrap up a lot of the things that we are hearing that we may know or we may not know about what the special counsel is doing.
I mean, clearly Jack Smith is continuing to gather evidence and interview key witnesses in the 2020 election and January 6th probe is taking shape. New York Times reporting prosecutors are following multiple strands as January 6th indictment decision looms.
In recent weeks, Smith's team has pushed forward in collecting new evidence and arranging new interviews with witnesses who could shed light. In the past few days, a lawyer for Bernie Kerrick, the former New York City police commissioner who worked closely after the election with Trump's lawyer, Rudy Giuliani, gave hundreds of pages of documents to prosecutors working with Jack Smith.
NBC is reporting the special counsel is examining a 2020 meeting where Trump was briefed on U.S. election system integrity.
In the meeting, officials from multiple agencies, including the FBI, the Office of the Director of National Intelligence, and the Cybersecurity and Infrastructure Security Agency, laid out why it is extraordinarily difficult for hacking or fraud to change the results of an election. As CNN is reporting, the top election security official fired by Trump confirms that he has also spoken with special counsel.
This would be Chris Krebs, confirmed to CNN. For the first time Tuesday, he has spoken with investigators.
The New York Times previously reported that Krebs had been among those interviewed by Smith's office. NBC News is reporting that former Trump DOJ official Richard Donahue has met with the special counsel's office.
Donahue said weeks before the attack on the Capitol that Trump had urged DOJ officials, including then acting Attorney General Jeffrey Rosen, to just say the election was corrupt and leave the rest to me and the Republican congressmen. So, you know, we are waiting as we have been waiting for days now on the indictment.
Ben, it could come as early as today. It could come early next week.
What do you think based on reading these tea leaves, knowing what we don't know? Well, so we know as a general matter, the meeting with defense counsel typically immediately precedes indictment. That is, you have this meeting from a defense point of view.
It's an opportunity to try to talk prosecutors out of it. From a prosecutor's point of view, it's an opportunity to kind of get a preview of some likely defenses, vet some arguments.
And after you have it, you normally proceed immediately to ask a grand jury for an indictment. So the grand jury is meeting today.
In fact, it's meeting as we speak. I believe, but I'm not certain that it does not meet on Friday.
So under normal circumstances, you would say, okay, there's no rush. You have the meeting today.
the indictment would likely happen early next week. I do think there's a chance, however, that in this situation, there is something of a rush.
You want to get this because of the oddities of this being a presidential election candidate who, you know, the further you get into the election season, the more you feed the argument that this is election interference. So I do think there is some chance that they will proceed today.
I think that's a relatively low chance, but I wouldn't be entirely surprised if we saw an indictment this afternoon or one that was filed under seal today and unsealed tomorrow, as happened last time in the Mar-a-Lago case.

More generally, I think you can say that the plethora of stories, some of which you have just summarized about continuing activity by this grand jury, shows that there is a lot of stuff going on that is not specifically about this indictment. That is, if they've scheduled a testimony from Bernie Kerik sometime in August, they are clearly looking at other people, not just Donald Trump.
And that makes a lot of sense because if Donald Trump conspired to overturn the election, he had a lot of co-conspirators. And I do think one issue we need to have our eye on is the indictment of Trump.
But another issue we need to have our eye on is the indictment of all the president's men, which may happen in a single indictment or may happen in a string of indictments. And it's very clear to me from the activity of the grand jury that they're looking at a lot of things and a bunch of people.
It is not clear to me at all who, other than Donald Trump, they're really focusing on or what the likely body of defendants looks like. Well, this is exactly what I was going to ask you.
Who else is going to be indicted? Does it all have to happen today? And obviously it does not have to all happen today. They may take a vote on one set of indictments, but they're not done.
And so just keep that in mind that it's still hanging fire. And yes, the fact that they continue to move at the speed that they are moving and continuing to bring people in would suggest that this is ongoing.
All right, we're going to double back on this in a moment, because obviously this is going to blot out the sun if it comes down later today or tomorrow or early next week. But before we do, what happened with the Hunter Biden case was also extraordinary.
This was not usual. I think we always mention as boilerplate that judges are not obligated to accept plea bargains, but most of the time they do.
So the lawyers walk in to the judge's courtroom yesterday expecting that he would plead guilty to a misdemeanor, that there was a plea bargain. He was under the impression that this immunized him.
The prosecutors had a different understanding. The judge just wasn't buying it.
So let me just read you a little bit from the New York Times account. Judge Norica, who, by the way, before people jump on the judge, I think she did a pretty good job.
She was the only person who seemed to know what was really going on or trying to get it right. Judge Norica quickly zeroed in on a paragraph offering Mr.
Biden broad immunity from prosecution in perpetuity for a range of matters scrutinized by the Justice Department. The judge questioned why prosecutors had written it in a way that gave her no legal authority to reject it.
Then in 10 minutes of incisive questioning, the Times reports, she exposed serious differences between the two sides on what exactly the paragraph meant. So Biden's lawyer said it indemnified Hunter Biden, not merely for the tax and gun offenses that were uncovered during the inquiry, but for other possible offenses stemming from his lucrative consulting deals with companies in Ukraine, China, and Romania.
And then the prosecutors were asked, and they said, no, that's not our understanding. They saw Hunter Biden's immunity as limited to offenses uncovered during their investigation of his tax returns dating back to 2014 and his illegal purchase of a firearm in 2018 when he was a heavy drug user.
So when the judge asked the lead prosecutor in the case, Leo Weiss, if the investigation of Hunter Biden was continuing, he answered yes. And then she asked, hypothetically, if the deal would preclude an investigation into possible violations of law regulating foreign lobbying by Hunter Biden connected with his consulting and legal work.
And he replied, no. And then, of course, Hunter Biden's attorney said, well, then the deal is off.
So what happened? How can something like this happen, Ben? I mean, these deals are hammered out in great detail. Everybody goes over every sentence, every word, and they come in to the courthouse and clearly had radically different understandings and the thing fell apart at least temporarily.
So how did this happen? Yeah, so unclear whether it fell apart or fell apart for a moment. By the time the hearing was over, the defense and prosecution seemed to be on the same page as to what the language meant.
That is, the defense accepted the prosecution's understanding. The judge, however, was unsatisfied and said, which I think, by the way, was the right thing to do.
She's taking a bit of a beating as a Trump appointee, but the incident did expose a different understanding of a contract, which is what a plea agreement is. And, you know, for a judge to accept a plea agreement, knowing that there is some discrepancy as to how the sides understand it, I think would be irresponsible.
And so I actually think that the judge's behavior is commendable. And somebody screwed up here.
It's not clear who, actually. And one thing, as Ken White, the gentleman who writes the Pope Hat site on Substack, points out, we don't actually have the plea agreement itself.
I think Politico is claiming that it has a copy, and so they published something that purports to be the deal. Ah, so I have not seen that.
But again, other news outlets have not necessarily confirmed whether or not it is the final agreement, whether it is the agreement that was presented to the court yesterday or the agreement as it exists in real time right now. Yeah, so it's hard to figure out without eyes on the agreement and a transcript of yesterday's hearing and a news story here is not an adequate substitute for a transcript.
Exactly what happened. But what we know is that in any plea agreement, the so-called immunity clause is one of the key or sometimes the key paragraphs.
So the immunity clause says, okay, you agree to plead guilty to X, and in exchange, we are immunizing, we agree not to prosecute for the following things, right?

Now, normally, the rule is for any offense related to the conduct described in the plea agreement. But here you have a situation where Hunter Biden apparently has some exposure in other areas not covered by the plea agreement.
And usually you would have a meeting of the minds between the parties about to what extent the immunity agreement does or doesn't cover that stuff. And here that seems to not have been the case.
And the judge picked up on that. And again, it's not clear to me how, but picked up on the fact that there is some discrepancy in the understanding and rightly went after it and sent them back to make sure they were on the same page.
So I assume this is a temporary blip. Yeah.
And that if this plea agreement is in both sides' interests, as I assume it is, they will figure out how to finesse the point of dispute. But I do think it's an embarrassment to U.S.
Attorney Weiss, who- He's already been under fire. He's been under fire from Republicans.
I mean, this is a blood in the water moment, isn't it? I mean, the Republicans have been saying, and they've had the whistleblowers and, and, you know, we haven't gone down that rabbit hole, but suggesting that this was a very unusual deal, that there might have been some favoritism involved. And that narrative seemed to have gotten a boost yesterday when the judge basically says, I've never seen anything quite like this.
Why is it written that way? It did not put the U.S. attorney in the best possible light.
And clearly it's going to feed this narrative that somehow Hunter Biden got special consideration. I agree, although it's not clear at all that the facts actually support that.
So what we think happened is that Hunter Biden's lawyers had an expansive understanding of the immunity clause and that the prosecutor had a narrower one and that the prosecutor's view prevailed. This agreement doesn't prevent other charges against Hunter Biden in relation to, say, foreign representation or Farah or that sort of thing.
Now, I think that's very likely that the statute of limitations would have run on any of those things. But remember, all of this conduct is stuff that happened like eight years ago or something.
So I don't think further charges are likely. But if the idea is that he got a sweetheart deal, you would have to ask, well, why then does the prosecutor not accept his reading and his lawyers end up accepting the prosecutor's less broad understanding of that clause.
So I think, look, it's embarrassing to the US attorney at a time when he can ill afford embarrassment, but it's not clear to me that, in fact, it's fairly clear based on the news stories that this is not the judge having accepted the sweetheart deal theory. Yeah.
Okay. So leaving aside what's happening in the courtroom, what might happen over the next few days or I guess she gave them 30 days to figure this out.
It is a real political problem. Yes.
It would certainly indicate that the Hunter Biden story is not going to go away and that this is going to redouble the focus on all of this and that the attention is going to turn to the fact that I don't know how to put this in a delicate way, but there is a cloud of sleaze around Hunter Biden that is extraordinary. What we do not know is whether or not it ties Joe Biden.
There's no evidence whatsoever linking the actual president to any of this.

But we live in an era in which you don't necessarily need to connect all the dots, right? I mean, you just have this sort of penumbra of sleaze and corruption and all of the dysfunction of Hunter Biden. Look, and I'm very, very sympathetic to the argument that Joe Biden's great sin here is that he loves his son, that he is supportive of his son, that he's not going to throw a son who's gone through some terrible things.
He's not going to throw him under the bus. On the other hand, this does appear to be a much larger political problem, I think, than a lot of Democrats would have hoped.
But again, we don't have any evidence linking Joe Biden to Hunter Biden's dealings. But we're going to be hearing about this through the end of next year, aren't we, Ben? A lot.
I think so. You know, Kevin McCarthy has all but capitulated to Republican demands for an impeachment inquiry against the president for the activities of his son eight years ago.
And so I think, you know, in much the same way that the Benghazi committee was used in 2000... Whenever that was.
15, 14, 15, 16, I can't even remember. I think you're going to have some kind of attempt at this, and we will have to pay attention to the Hunter Biden story because there will be impeachment hearings related to it.
And so that's an escalation that sort of requires your attention. In addition, I do think, so I have tried for several years now to avoid thinking about the Hunter Biden story in the same way that I don't think about Don Jr.
or Ivanka stories to the extent that they don't directly involve Donald Trump, right? I don't care what the president's children do unless it involves the president's activities, which in Ivanka's case, she was working in the White House. In Don Jr.'s case, sometimes he was representing the campaign, running his father's organization.
So there was more relationship there. But my view is, unless you have an allegation that involves

Joe Biden, you cannot impeach the president or prosecute the president for the activities of his children. But I do think that the, you know, there is a recent New York Post article reflecting that Mr.
Comer purports to have a witness who's going to testify next week who will claim, and again, the veracity of this I have no sense of, that he saw Hunter Biden call his father repeatedly to show off dozens of times to show off before business partners or prospective business partners and that Joe Biden as vice president would take these calls. Now, taking phone calls from your son is in no sense a crime, but I do think we have to keep our eye on these proceedings because, you know, sometimes when you go on a fishing expedition, you churn up Hillary Clinton's email server, right? And things become real political problems, real issues.
And I think we just have to be mindful of the fact that They have not generated any serious allegation of misconduct by Joe Biden, but they have generated activity that makes you look at it and say, huh, wonder how that's going to play out. And of course, this is the political moment we're in.
We're going into a presidential election year. And as we've learned over the last seven years, whataboutism is a powerful weapon.
It's often a hypocritical, disingenuous weapon, but it is a powerful weapon. And when you're dealing with the incredible sleaze and corruption dishonesty of Donald Trump and of the Trump crime family, the best way to deal with this, there's a political necessity here, but also a psychological impulse to say, well, you know, what about this guy? And the best way or the only way psychologically and politically to divert attention from the incredible sleaze of Donald Trump, the incredible level of corruption, the kind of dealing that Jerry Kushner was engaging in, is to change the subject and say, well, everybody does it.
This guy is even worse.

And they're doing the same thing with impeachment, aren't they? And I talked about this with Asa Hutchinson on yesterday's podcast, kind of a two step. Number one, you expunge Donald Trump's impeachments.
And by launching an impeachment of Joe Biden, you also, in effect, kind of normalize it. Because if everybody's impeached, then it's no big deal, right? I mean mean you and i are both old enough to remember when impeaching a president was a really really big deal but now the currency has been debased because if we look back on this 50 years from now and every single president has been impeached by the congress controlled by the other party then it becomes a yeah well what else is new and so they to debase, devalue, and normalize the impeachment process while also what abouting the incredible level of corruption and criminality of Donald Trump.
I think that's exactly right. And I also think that your adage that the highest form of Trumpism is projection is a clear factor here.
You have serious allegations of, and quite diverse allegations of corruption involving the former president and his family. And so the only response to that has to be that the current president is the most corrupt president in history.
Facts be darned.

The fact that there really are no serious or even non-serious corruption allegations

directed at Joe Biden as opposed to Hunter Biden doesn't really matter.

You have to make that allegation.

You have to make that allegation over and over and over again.

And so loudly that it becomes true for very large numbers of people.

All right, let's change gears and look at what's going on in Georgia, where there was a very interesting development, although I want you to put this in some context. Rude Giuliani concedes in this late night filing in a civil defamation lawsuit that he made defamatory statements about Georgia election workers, Ruby Freeman and Chez Moss.
He acknowledged the statements carry meaning that is defamatory per se. He admitted that his statements were actionable and false, but he plans to argue that his accusations were protected speech and he denies they suffered any damages.
Again, so does this carry over into any other case? What is the significance of Rudy Giuliani rolling over and saying, yeah, that whole story about Ruby Freeman and Sheamus was bullshit. I made it up.
I'm not going to defend it for the purposes of this lawsuit. I'm basically going to concede that, yes, it was completely untrue, and I'm not going to repeat them.
What is the significance of this?

Well, let's start with the significance within the case, which is that, and for those who don't remember Shemos and Ruby Freeman, who testified in the January 6th committee, These are the mother and daughter election workers who Rudy Giuliani accused of basically vote packing and who supposedly passed a USB drive between them, which was caught on film. It turned out to be a breath mint.
And these two women really had their lives destroyed and turned upside down by threats. And we also should mention that Donald Trump himself pushed this rather significantly.
In fact, in that call with Brad Raffensperger, the Secretary of State of Georgia, I believe he mentioned Ruby Freeman's name something, I mean, like more than a dozen times. So, I mean, he bought this completely.
He pushed it. And in Trump world, at least for a time, Ruby Freeman and Chez Moss

were basically, you know, the number one vote stealers in America. So in terms of the notoriety

and the damage done to their reputation, it's a little hard to overstate it. And they testified

very dramatically, if people recall, in front of the January 6th committee about how they couldn't

go anywhere. They didn't go to the store anymore.
They wouldn't get business cards.

They had to leave their houses. I mean, it was the idea that they did not suffer damage as a result of what Rudy Giuliani did is quite absurd.
I would also be remiss if this were television, we would show pictures of them, but let's be candid. These are two black women from Fulton County, Georgia, and Rudy Giuliani talked about them in ways that were, frankly, racially demeaning.
And there was, I would say, a racial subtext, except that it was not sub at all. These are two black urban women working as election workers, and he was accusing them of vote rigging, you know, with an implication that they were like, you know, sort of drug dealers or something based on absolutely nothing.
And so I think you start with the fact that within the case, the admission effectively will amount to an admission of liability. He's going to continue to try to defend the case on other grounds, but those will not succeed.
At least they should not succeed. Outside of the case, I'm not sure it has that much significance, except moral significance, where it's a reminder that you can't just make garbage up about people without any consequence.
And I think that's really healthy. It will be interesting to see who else Ruby Freeman and Shea Moss can go after.
Can they go after Donald Trump? Can they go after successfully some of the news outlets that uncritically propagated this nonsense? I don't think it has criminal implications, but if anybody doubted whether Rudy Giuliani was talking out of his ass when he destroyed these two people's lives. He just admitted that he did.
And that's a really important thing. Aaron Blake in the Washington Post points out that Giuliani is just the latest of the Trump lawyers who are now conceding that what they had said was untrue.
He said this has been a trend among Trump-aligned lawyers. In her own court filings, Sidney Powell conceded that her wild claims of rampant fraud in Michigan.
She said that reasonable people would not accept such statements as fact. Really? More recently, Trump legal advisor Jenna Ellis admitted to 10 specific misrepresentations about the election as part of a deal with the Colorado Supreme Court to censure her while avoiding stiffer penalties.
Ellis agreed that she acted with at least a reckless state of mind and that her comments undermine the American public's confidence in the election, violating her duty of candor to the public. So in effect, Trump-aligned lawyers have now conceded as false, and this is Erin Blake, their most hyped supposedly direct evidence of mass fraud, Freeman and Moss, the idea that Trump was the proper and true victor, as Jen Ellis claimed, the idea of the election was stolen and Trump won by a landslide, as Ellis claimed, the idea there was a coordinated effort in all of these states to transfer votes either from Trump to Biden to manipulate the ballots or to count them in secret, as Ellis claimed.
and then of course you have the Rudy Giuliani so there does seem to be a pattern here where they are running away from

the kinds of things that played well on Newsmax or OAN, but play less well in a court of law. Yeah.
So I think this is a really important point and it has a hole in it. The really important point is when lawyers do this in the practice of law, they are potentially liable.
They are actionable under their state bars. Remember Rudy's bar license has been suspended.
Jenna Ellis, the context of the admissions that you just cited are a bar action against her. There are pending bar actions.
Sidney Powell has been, I believe, recommended for disbarment or her license has been suspended. And there are pending bar actions against a bunch of other figures as well.
So I think we are, like, for the lawyers, it's clear what the action, you know, what the accountability mechanisms are. These are, of course, non-criminal mechanisms.
There are also possible criminal actions against some people. The problem is if you're Fox News and you do the Dominion thing, you have $750 million in liability for that.
So there's some extreme case in which non-lawyers are liable as well. But it's not clear what the mechanism here is for Trump, the non-criminal mechanisms.
He's not a lawyer. Right.
For non-lawyers or even for lawyers who are not engaged in this activity.

What about just flat out defamation, defamation lawsuits?

So defamation, notice that nobody has successfully brought a defamation action for Trump when he was president.

There are some powerful defenses that the president has there.

Also, what about the networks that are putting Sidney Powell on to propagate this?

They're not doing it themselves, right?

Thank you. Also, what about the networks that are putting Sidney Powell on to propagate this? They're not doing it themselves, right? But they're putting Rudy Giuliani on over and over again to propagate this stuff.
That's a much harder question. Yes, defamation law can eventually get you there.
But it's not, you know, defamation law is a really, really high bar. There's no analog to the, hey, you have an obligation to tell the truth when you're in a court, when you're talking to a court standard that a lawyer has.
And so I think one of the things, you know, the defamation suits, including against Giuliani, have been salutary in this area.

Yeah.

But I do think there's a question of, like, we've seen greater accountability for lawyers

than we have seen for just about anybody else.

And I think there's an interesting question, what the bar is doing right here that other professions should think about. All right.
So since our last Trump trials episode, Judge Eileen Cannon set the classified documents trial down in Mar-a-Lago to commence on May 20th next year in Fort Pierce, Florida. And she scheduled a set of hearings for both parties.
The Justice Department wanted to push the trial to start in December. That was never going to happen.
Trump's legal team wanted to push it past the 2024 election, so they failed. Again, just to recap here, Trump is facing 37 charges, including more than 30 alleged violations of the Espionage Act.
The government's alleging that Trump personally was involved with packing the documents, that he bragged about having them, that he pushed his lawyer to mislead the FBI about them. There are apparently more than a million pages of non-classified discovery in this case, nine months worth of camera footage, at least 1,500 pages of classified discovery.
So how realistic is it to expect that that trial is even going to take place before the election? If I had to guess, I would say the probability is low. And the reason is not, you know, Judge Cannon being a perfidious Trumpist.
The reason is the volume of classified material. It's just a lot.
It's a lot. 37 counts each with classified discovery surrounding it.
The amount of litigation under the Classified Information Procedures Act to figure out how you can handle that material, that is a no-joke process. So I would say for perfectly legitimate reasons, the likelihood that this goes to trial before the election is not that high.
That said, I think Jack Smith has almost certainly selected the 31 documents in question. It's 31, I think, not 37.
37 total counts, 31 document counts. I think he's almost certainly selected those on the basis of which ones he can facilitate, either by disc declassification or by some other means, some easy summaries, taking a little bit of additional risk.
He seems to believe the government can get done all the discovery and motions, and he was pushing for a very aggressive trial schedule. I got to say, I thought Judge Cannon's scheduling was very reasonable.
I know she's taken a big beating, including from me, for her handling of prior matters. Oh, justifiable.
Oh, totally justified. I mean, her handling of the pre-indictment litigation was, I think the technical word is deplorable.
That said, I thought her handling of the scheduling matter, and for those who want a detailed account of it, Anna Bauer wrote up that hearing in great detail on lawfare.

I thought her handling of the scheduling matter was very reasonable. And by the way, puts the hearing at the, if you take this trial schedule seriously, a May hearing in the election year after a March trial in the New York case would be an unbelievable disaster for Trump.
So look, there's a lot of evidence that Eileen Cannon is in the tank for Donald Trump. This handling of this matter does not seem to me to be an example of it.
So what do we make of this NBC report from Tuesday that there had been eight search warrants filed in connection with Trump's handling of the documents? I mean, this came out as a result of some media efforts to get information about what was going on. The government has released the contents of the other warrants.
I mean, we know one of the warrants because Trump announced it when the search was executed on his old property. What do we know about the seven other warrants? They don't mean that they were for locations.
They could have been right for phones. They could have been for computers.
They could have been for other parts of the property. What do we make of them? Or do we know anything? Yeah, so there's many things that these could be.
So first of all, often when you open a phone, you need a warrant for that. Also, when you get email records, phone records you can get with a subpoena or an order.
But once you're dealing with contents of communications, like email contents or other telecommunications contents, you're generally in warrant land. And so I don't think it's surprising, actually, that there would be additional warrants.
I did find the number eight a little surprising. So let's go back to, or waiting on today, the indictment involving the January 6th and the subversion, the attempted subversion of the 2020 election.
Your colleague Quinta Jurecic had a great piece in Lawfare about the potential application of that law, 18 U.S.C., what is it, 241, the criminal statute that was passed during Reconstruction as part of the Ku Klux Klan Act, and reportedly that was named in Trump's target letter. And specifically, this law prohibits conspiracy to, quote, injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the constitutional laws of the United States.
And as she points out, there's a kind of a recent precedent of this, as applied by the Justice Department. The DOJ secured a conviction for interference with the 2016 election in the case called U.S.
versus Mackey involving this guy who went by the name Ricky Vaughn, high-profile Twitter user who spread falsehoods during the election. I mean, this was the guy that actually encouraged Hillary supporters to vote from home by texting or posting their vote on social media.

And it looked like he was flying under the radar for about five years, but he was charged with violating this law two days after Biden was sworn into office. So as Quinta explained, Section 241 originally passed to secure the rights of black Americans against a campaign of white supremacist violence following the Civil War, has long been used to prosecute conspiracies threatening the right to vote.
So that's something really to keep an eye on today. Yeah.
So I was initially surprised, as were a lot of people, when I saw the... And puzzled.
Well, so part of it related to the fact that the initial news stories that referenced this statute actually cited it wrong and cited 242, which is also part of the Klan Act, but it hasn't been used in quite the same way. And so there was some confusion over which statute was at issue.
Quinta had followed this Ricky Vaughn, so-called Ricky Vaughn case. And I do think it is a very interesting window into the way the current Justice Department understands the law in question.
That is that You don't need to be out there in hoods, burning crosses to violate this law. If you're sending large numbers of text messages to Black voters telling them, or to voters in general, telling them that they can vote by text, and you're doing that in order to prevent them from voting,

that's a conspiracy against rights. And similarly, there are cases from way back where if you conspire to not count the votes properly, that's a conspiracy against everybody's right to vote, And here, maybe the theory goes, if you put pressure on people, on Brad Raffensperger not to count the votes correctly, and you put pressure on Mike Pence not to count the electoral votes properly or to count the wrong electoral votes, and you maybe gather a mob to menace people not to finish counting the votes, and you create a whole lot of fake electors by way of encouraging, muddying the counting of votes so that it's done incorrectly, and you honor the wrong votes, the minority of voters, not the majority of voters.
That seems to fit if you look at the government's theory of this case. It makes a lot of sense in light of these recent prosecutions.
I have to admit, it feels a little bit esoteric, but then we have to wait to see how he lays it out. Because if Jack Smith does with this indictment, what he did down in Mar-a-Lago, we will get a speaking indictment.
He will tell the story. He will put it in context, and we will understand what all of these things mean.
As we pointed out on last week's podcast, it's worth remembering that as of right now, as you and I are speaking, almost everything that we have learned about this probably comes from the defense team, from Trump world, because there's no indication whatsoever that the Department of Justice itself is leaking. So keep in mind, there are things that we know, and there are a lot of things that we do not know, and we're not going to know until this is unsealed.
So we're going to be watching what is happening in Washington. We know the grand jury is meeting.
We know the jurors are there. We know that they could take a vote.
What is the usual gap between a target receiving the letter and actually being indicted? Do we

know that? Number two, what is the usual gap between a grand jury vote to indict and that

indictment being unsealed? Do we know that? Is there some rule of thumb? Yeah. So the gap between

a target letter and an indictment can be, I would say it

is seldom more than a few weeks. You issue a target letter when you are ready to proceed against somebody, but there may be some I's to dot and T's to cross.
The gap between when the meeting happens and when the indictment happens is normally very short.

Yeah.

Like a day or two, sometimes three. So a good benchmark here is the Mar-a-Lago case where we know the meeting happened on the Monday and the indictment happened on the Thursday.
And so I would say if it were to happen today, that would be very fast. And the only reason to think that it might happen today is that we know the grand jury is meeting today.
And we know that because there are people standing outside it tweeting as grand jurors go in. So we know the grand jury is there.
We know the meeting is happening. So I would say low probability, but not zero probability that the grand jury is there because the meeting is happening.
And as soon as the meeting is done, unless the Trump lawyers are particularly persuasive and throw a wrench into everything, the grand jury will then proceed to consider the matter. I think that's a relatively low probability, and the higher probability is that we are looking toward early next week.
I think the grand jury meets on Tuesdays and Thursdays, not on Fridays, so that we will not see an action tomorrow, but I would be surprised if we got through next week without it happening.

Yeah, it certainly feels like today is indictment day. Ben Wittes is editor-in-chief of Lawfare,

senior fellow in governance studies at the Brookings Institution, and most importantly,

writes Dog Shirt Daily on Substack. Ben, thanks again for joining me on today's edition of

The Trump Trials, and we will do this again next Thursday, all right?

Always happy to join, and I think by next Thursday, we're going to have an indictment to talk about.

Thank you. of the Trump trials, and we will do this again next Thursday, all right? Always happy to join, and I think by next Thursday, we're going to have an indictment to talk about.

We'll have a lot to talk about.

I think we're going to have a lot to talk about for the rest of the year.

Thank you all for listening to today's Bulwark Podcast.

I'm Charlie Sykes.

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

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