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Complete and Total Immunity

January 18, 2024
Notes
Transcript
No, American presidents don’t need to be able to commit crimes to do their job. Plus, Trump is begging to be made a victim of a big, bad judge, and looking like someone who plays a lawyer on TV does not make you a good lawyer. Ben Wittes joins Charlie Sykes for The Trump Trials.
This transcript was generated automatically and may contain errors and omissions. Ironically, the transcription service has particular problems with the word “bulwark,” so you may see it mangled as “Bullard,” “Boulart,” or even “bull word.” Enjoy!
  • Speaker 1
    0:00:08
    Welcome to the Bulwark Secret Podcast. Our new episode of the Trump trials. It is twenty twenty four, and the trials have begun. Donald Trump has decided that he’s going to show up. He’s not just going to show up at the criminal trials.
  • Speaker 1
    0:00:21
    He’s going to show up at these civil trials. Which he apparently intends to turn into a circus. And if that is not enough, he continues to attack the judge and the prosecutors in social media posts, in press conferences, and in, and I wanna talk about this. One AM Ranch and meltdowns. Who better to talk about this than my co host on the Trump trials, Ben Whittis of Lawfair?
  • Speaker 2
    0:00:47
    The king Of the one AM meltdown.
  • Speaker 1
    0:00:50
    Well, listen. I by the way, I appreciate the shades. We have so much talk about what’s going on in Georgia? What’s going on in Florida? What’s going on in Florida?
  • Speaker 1
    0:00:56
    What’s going on with Jack Smith, this smackdown by the judge. I mean, this was theater. I mean, let let’s admit it. So to that extent, Trump is getting what he wants. You know, the judge threatens to throw him out of the courtroom.
  • Speaker 1
    0:01:08
    His attorney one of the most incompetent attorneys I’ve ever seen. I mean, so can we just set that aside for a moment? Because I can’t stop thinking about your dog shirt, daily newsletter today, which was devoted to all the things you do not care about. And I’m reading that and I’m thinking, Ben, this speaks to me. And I think it speaks to a lot of Americans because at a certain point, we have to, like, winnow down things we don’t care about, you know, we have so much bandwidth, and I’ve been learning about limited bandwidth.
  • Speaker 1
    0:01:40
    I don’t have bandwidth to worry about whether or not Taylor Swift is gay. I don’t have the bandwidth to worry about I mean, so talk to me about this. Harry Frankfurt, the great book, the importance of what we care about. I think your newsletter was much pithier going through the things that we can’t care about because we cannot carry the shit around our heads all the time.
  • Speaker 2
    0:02:00
    Right. So I was struck by listening to all the bulwark podcasts about the Iowa caucus and the next level. And Then I’m living in DC, of course, where the whole city was paralyzed by, you know, five inches of snow, And, you know, when DC gets paralyzed by five inches of snow, of course, all we talk about is the snow and our paralysis about it. Right. And I was realizing that, you know, I couldn’t decide which was stupider to be talking about how we’re paralyzed by snow or to be talking about how the press is responding exactly, you know, as though an earthquake had happened to exactly the results in the Iowa Caucus that everybody knew was exactly what was gonna happen.
  • Speaker 2
    0:02:59
    And I realized that I just don’t care. About the snow, and I don’t care about the Iowa caucus, and I don’t care about who Taylor Swift is dating And I don’t care whether some New York Times, editorial writer thinks she’s gay or not. And I actually don’t give a rat’s ass about King Charlie Sykes’ prostate, and I don’t care.
  • Speaker 1
    0:03:22
    Oh, where is the king?
  • Speaker 2
    0:03:23
    I know. But it’s his prostate, and I don’t care. Yep. And I also don’t care about whether the Ann Arbor school board votes to endorse a ceasefire in Gaza because you know what? The Ann Arbor school board runs the Ann Arbor school system.
  • Speaker 2
    0:03:37
    It has nothing to do with the war in college.
  • Speaker 1
    0:03:39
    And nobody else cares either. Really, nobody cares. Yeah.
  • Speaker 2
    0:03:42
    And so I just compiled a list of things in the news that I don’t care about, like, the ME’s and, you know, what’s animating, how speaker might Johnson and whether drizzly is gonna get shut down by Uber, which it is. And also, finally, the the legions on Donald Trump’s hands, you know, and I just made a list of things I don’t care about. And I think I put it on dog shirt daily, and it seems like a lot of other people don’t care about these things as well. And I just wanna say I have room in my head end of heart for three giant news stories right now. One is the future of American democracy.
  • Speaker 2
    0:04:29
    The other is the defense of Ukraine and other democracies under attack by authoritarian states. And the third is the war in the Middle East.
  • Speaker 1
    0:04:41
    Big? That’s it. Each or bid, and
  • Speaker 2
    0:04:42
    everything else falls into the category of trivia. And to be able to think about those three big things, I need to be able to triage other things out. And so I’m sorry, Taylor Swift sexuality. I just don’t have room for you. By the way, it’s also none of my business, which is a different matter.
  • Speaker 1
    0:05:06
    No. Different not. No.
  • Speaker 2
    0:05:07
    Like anything that is a denny of my business is just getting triaged out. Anything related to sports and celebrities and movies and stuff. Whoa. Whoa. Whoa.
  • Speaker 1
    0:05:17
    Whoa. Whoa. Hey. The packers the packers in the playoffs, so I can’t go with you there. Okay.
  • Speaker 1
    0:05:20
    No. No. I’m not saying that everybody
  • Speaker 2
    0:05:23
    needs go with me on the specific list, but everybody needs to have a list.
  • Speaker 1
    0:05:28
    I am desperate to get to the weekend where on Saturday, I won’t think about anything other than the packer at forty nine again. See, I so I agree with you so fundamentally. I think this is one of those things where there has to be that triage. The flip side of that, though, is that I think even in these dangerous times, there has to be other things that we care about and think about that we don’t go crazy and we don’t lose our sense of humor. Now it’s not the trivial news stories.
  • Speaker 1
    0:05:53
    It’s not this firehose of inanity and back and forth and, you know, lazy pungent and all of that stuff. You know? But I have been finding, you know, thinking that I need to access parts of my brain that are not focused on this because otherwise bad things are gonna happen. You know what I mean?
  • Speaker 2
    0:06:12
    So Everybody’s listed gonna be different. If you’re a sports fan, you’re gonna keep room in your brain for those things that you care about. For me, there’s a list of, you know, music, there’s a list of
  • Speaker 1
    0:06:26
    Right.
  • Speaker 2
    0:06:26
    I’m really into, right now, things that I can make with my hands. I’m keeping space for that. But I’m talking about the big news stories just being able to mentally turn off the flood of bullshit
  • Speaker 1
    0:06:46
    You have to do that.
  • Speaker 2
    0:06:47
    And being able to say These are the things I care about if it’s not. I’m not even saying it’s unimportant, although some of them are objectively unimportant. I’m saying I don’t have space for it. I’m just not gonna care.
  • Speaker 1
    0:07:01
    I was reminded of something when I when I was a much younger man, I was a newspaper reporter, and I was given him a beat And, you know, my predecessor said one of the most important things you need to do as a journalist is to turn down the white noise. Is to be able to focus on the things that matter and basically screen out all of the things that are the ephemera or just not important, don’t affect anybody. You know, they might be amusing for the moment, but you have to ration in part because if you try to care about everything, if you try to cram everything, you’re just gonna get exhausted I mean, the system’s gonna overload. Just like, if you worked out, if you worked out, you know, twenty, twenty three hours a day, you know, if you lifted weights every single day and then you ran and then you did this, you know, your body is going to give out. I think your brain gives out if you try to think and care about too much.
  • Speaker 1
    0:07:52
    Especially it’s too much stuff that just does not matter.
  • Speaker 2
    0:07:54
    Yeah. So I had a very similar experience, but it was when I left being a journalist, or a daily journalist. So when I left the Washington Post, I had been the legal Affairs editorial writer for ten years, nine years, it was my job to follow every supreme court opinion, every DC Circuit opinion, and to have an opinion about all of
  • Speaker 1
    0:08:18
    it. Boy.
  • Speaker 2
    0:08:18
    And on less than a day’s notice, to write a reasonably well informed editorial. And so I had trained myself to care institutionally about the output of these courts. And then I had this probably five, six months in to being a brookings scholar. I suddenly realized I don’t have an obligation to care about every decision the Supreme Court makes anymore. I don’t, like, the DC circuit I can care about one in every thirty.
  • Speaker 2
    0:08:52
    DC circuit opinions. I don’t have to read them all.
  • Speaker 1
    0:08:55
    So how did that feel? How did that feel? Did you you feel like you’d come out into the broad uplands, sunny uplands of liberation?
  • Speaker 2
    0:09:02
    It took me, like, two or three years to get used to it. It was it was so conditioned that I had to know and have an opinion about this huge range of activity and just the ability to say, I don’t need to know about this. I don’t need to care about this. It was one of the most liberating intellectual experiences of my life.
  • Speaker 1
    0:09:29
    Okay. Now you’re you’re tempting me because, I mean, this really hits home for me because, you know, for forty five years, I’ve been basically involved in daily journalism for, like, more than twenty years I had a daily radio show three and a half hours where I had to care about, well, or just pretend to care about so many things. I didn’t have an opinion about so many things every single day. And when I left that, I had the mini experience of, like, oh my god. I don’t have to have an opinion on everything, every single day.
  • Speaker 1
    0:09:56
    But there is that, especially now with social media and with with a flood of news and everything, and the demand that you care about, everything, it does feel like you’re on the hamster wheel. You’re on the hamster wheel all the time, and you kind of strapped to the mast, you know, with with your eyes open, and you you have to, like, watch by the way, those are two completely contradictory metaphor. That’s an ultimate mixed metaphor because you can’t be on a hamster wheel and tied to the mask, but you know what I mean, that you’re sort of trapped and you have to pay attention to it all the time. It is exhausting. And I do think about that a lot.
  • Speaker 1
    0:10:25
    Just the the change in perspective, you just step back. You get out of the flood. You get out of the know, all of this. And you you say, I’m gonna care about this, but I am not obligated to care about all of these other things, or to have an instant opinion about something that maybe I think I understand.
  • Speaker 2
    0:10:45
    The fact that a lot of people that I care about because they care about x and I care about x, they also care about y does not mean that I have to care about y. I think this
  • Speaker 1
    0:10:58
    so true.
  • Speaker 2
    0:10:59
    That sense of peer pressure. And, you know, I hear a lot of people saying the key is turn off social media, and I actually don’t think that’s necessarily right. I think the key is to turn off the heart of your brain that feels obligated to care about everything.
  • Speaker 1
    0:11:19
    Oh, boy. I am with you.
  • Speaker 2
    0:11:20
    And so, like, one of the items on my list of things I don’t care about is that a judge has blocked JetBlue’s acquisition of Spirit Airlines.
  • Speaker 1
    0:11:31
    Past over that headline this morning.
  • Speaker 2
    0:11:32
    If I were an antitrust guy, I suspect it’s probably important. You know, and I fly JetBlue pretty frequently. So I’m not saying it’s unimportant. It’s just not on my list of things that I’m gonna spend one one hundredth of an ounce of of emotional energy on. I’m not gonna read the story.
  • Speaker 2
    0:11:56
    I’m not gonna learn about it. And I’m gonna trust the people who do antitrust for a living. I do national security and law and democracy and that stuff for a living. I’m gonna focus on my value add. Let them focus on their value add and whether we have spirit or jet blue or jet spirit blue or spirit blue or whatever.
  • Speaker 2
    0:12:19
    I just don’t care.
  • Speaker 1
    0:12:20
    Yep. Because I’m not gonna fly either one of them. Just trust me on Okay? You’re my spirit animal. So let’s talk about things we do care about.
  • Speaker 1
    0:12:26
    You and I both care about. We care about passionately. We care about deeply, which is the rule of law. So we start with the one AM tweet because I don’t know that you’ve seen this yet.
  • Speaker 2
    0:12:34
    I have not seen the one AM tweet because I don’t care about waking up at one AM in the morning and, reading bleats.
  • Speaker 1
    0:12:42
    Okay. So, Trump has been ranting about the judge in the Eugene Carroll case, which we’re gonna get to in a in a moment. But apparently, he’s also, you know, thinking about this immunity case in front of Breme Court, which we have talked about. Let me give you a complete reading of his one AM post. Here’s Donald Trump, he of the white splotchy hands, which we’re not gonna talk about.
  • Speaker 1
    0:13:02
    Saying that he deserved complete and total presidential immunity even for events to cross the line. Are you ready? Here we go. A president of I should do this in a Trump voice, but I’m not I can’t. A president of the United States must have full immunity without which it would be impossible for him her to properly function Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end, even events that, quote, unquote, cross the line, must fall under total immunity, by the way.
  • Speaker 1
    0:13:30
    All of this is in caps. Everything is in caps. Must fall under total immunity, or it will be years of trauma trying to determine good from bad. There must be certainty. Example, you can’t stop police from doing the job of strong and effective crime prevention because you want to guard against the occasional road cop or bad apple Sometimes you just have to live with great but slightly imperfect slightly.
  • Speaker 1
    0:13:54
    All presidents must have complete and total presidential immunity where the authority and decisiveness of a president of the United States will be stripped and gone forever. Hopefully, this will be an easy decision god bless the Supreme Court exclamation point. So apparently, Donald Trump’s world, he thinks it is impossible. Be president without breaking the law occasionally, just like cops. So, Ben, I care about that one.
  • Speaker 2
    0:14:23
    Yeah. I do too. So one is that this isn’t before the Supreme Court. It’s before the DC Circuit Court of Appeals.
  • Speaker 1
    0:14:29
    For now.
  • Speaker 2
    0:14:30
    It’s not clear to me at all that the Supreme Court is going to hear it once the DC Circuit rules, though that’s certainly possible. Second thing is cops don’t have complete immunity. They have what’s called qualified immunity. And so the analogy that Trump is drawing is actually incorrect. There’s a reason why Trump hasn’t asked Qualified Immunity here, which is that it wouldn’t be good enough to protect him against this indictment.
  • Speaker 2
    0:14:58
    The third thing is that if he’s right, then Joe Biden could pick up the phone today and have Trump killed. So he should be careful, you know, what he wishes for because what he’s asking for is, among other things, president, there’ll be no need to prosecute him. You could just offer. And then finally, the premise here is incorrect. Which is that the system only works if presidents have this complete immunity.
  • Speaker 2
    0:15:31
    President have never had total immunity. And Richard Nixon didn’t think he had total immunity. That’s why he accepted a pardon from Gerald Ford. Will Saletan didn’t think he had complete immunity. That’s why he reached what amounted to a plea deal with Ken Star’s successor, Bob Ray,
  • Speaker 1
    0:15:50
    You know?
  • Speaker 2
    0:15:51
    He wouldn’t have done that if he could just say, hey, you know, I have total immunity. No president has ever acted as though he had total immunity, and the system hasn’t ground to a halt. And by the way, multiple presidents have been investigated after they left office for potential criminal activity. Larence Walsh’s investigation of Iran contra, of which Ronald Reagan was a subject, continued throughout the irity of the first Bush administration. So he’s simply wrong as a factual matter that presidents have always been able to rely on the idea that they were immune, presidents have never been able to rely on the fact that they were immune.
  • Speaker 2
    0:16:38
    And the system has not ground to a halt because presidents need to commit crimes in order to conduct their job. Finally, I will just say that the system has a lot of ways of accommodating the fact that presidents are differently situated from you and me. And we’ve talked about this before, but, you know, the Office of Legal Council at the Justice Department has a whole spate of opinions about how certain laws cannot be applied to the pres certain criminal laws cannot be applied to the president because they don’t specifically say that they applied to the president and that they could encumber his functioning as president. And so these are ways of addressing the problem that Trump very crudely alludes to. There’s an elaborate set of accommodations that the executive branch has made over the years to the unique situation of the president.
  • Speaker 2
    0:17:39
    And by the way, the same OLC that made those opinions has signed off on the indictment of Donald Trump which never would have happened without OLC’s, at least tacit acceptance that this does not infringe presidential prerogatives. And there is no earthly way that Jack Smith’s brief on the immunity question wasn’t vetted by OLC. There’s just no way that that was done without LLC’s involvement because LLC is the government’s internal guardian of executive authority and prerogatives. And so every aspect of what Trump says in this bleat is really bullshit.
  • Speaker 1
    0:18:31
    What a surprise?
  • Speaker 2
    0:18:32
    And god bless the Supreme Court.
  • Speaker 1
    0:18:36
    God bless them. All in caps exclamation point. Okay. Let’s talk about the e Jean Carroll case. Federal judge yesterday.
  • Speaker 1
    0:18:41
    I think people have heard about this story, threatened to, eject Donald Trump from the court after he repeatedly made comments with an ear shot of the jury hearing the defamation case against him, despite being told, don’t speak too loudly. He’s sitting there at the defense desk, saying things like con job, whack job. She’s getting her memory back. Before we get into this, Let’s set the stage. What is this trial?
  • Speaker 1
    0:19:02
    Why is there an e g Carol trial? Another defamation case. My understanding, correct me on all of this. This is not a case, a trial that is to determine whether or not he sexually assaulted her. That’s already been litigated.
  • Speaker 1
    0:19:16
    That finding has already, you know, done. It’s in the books. It is also not a trial to determine whether or not he defamed her. It’s a trial solely to determine how big the damages should be against Donald Trump. Am I correct in this?
  • Speaker 2
    0:19:34
    Yes. So here’s the the the issue. And again, there are important lessons to this for all the listeners. When you raped somebody and defame
  • Speaker 1
    0:19:43
    her, Yeah. Bad.
  • Speaker 2
    0:19:44
    Don’t repeat the deformations over and over and over again because each time can be a separate defamation that you can be held liable for. So it’s really important when you engage in the grossest of sexual misconduct and then add defamation onto it by denying it to only deny it once. Only engage in the defamation once because you don’t want repeated findings. The underlying conduct is already determined. And the fact that the statements are defamatory is already determined.
  • Speaker 2
    0:20:25
    What has not been determined is in these repetitions of the defamation, how much is Eugene Carroll entitled to collect in both compensatory damages and punitive damages. Now this brings me to my second lesson in how to be a litigant, which is we’ve already talked about the important lesson of not going out of your way to piss off the judge. Mhmm. But not going out of your way to behave like a raging asshole in front of the jury?
  • Speaker 1
    0:20:58
    Of the jury.
  • Speaker 2
    0:20:59
    The jury? Because these are jury questions.
  • Speaker 1
    0:21:01
    Because they’re watching all of this. Right.
  • Speaker 2
    0:21:03
    They’re getting to see all this. And if the judge is reprimanding you in front of the jury, you know, it’s possible that some members of the jury are gonna be like, wow. This guy’s a raging asshole. I suspect that I should believe her you know, her sworn testimony, and remember, he hasn’t given any sworn testimony, at least not yet, about any of this. So, you know, he’s really risking a pretty substantial monetary penalty at this point.
  • Speaker 1
    0:21:33
    But she obviously doesn’t seem to care about this.
  • Speaker 2
    0:21:35
    Right. Cause he’s not paying them bills.
  • Speaker 1
    0:21:37
    Always hesitate to ask what is Donald Trump thinking? Because there’s obviously two strategies here. One strategy is clearly political that he wants to shine the spotlight on Trump as victim. I think that’s really questionable because, and I wrote this yesterday, and I keep thinking about this. You know, I we maybe we’ve fallen into the the trap of thinking that his lizard brain sees something the rest of us can’t.
  • Speaker 1
    0:21:58
    I just think calling attention to a case where he has been found liable for raping a woman and then lying about it, you know, is not really genius politics because You know, you and I know what happened in this Eugene Carol case. I was not paying really close attention the first time around until the verdict came down. My guess is that there are tens of millions of Americans that may be understating it who really have not been following this, don’t know anything about it. But by showing up he guarantees that that trial is center stage. So that’s the one strategy that he’s trying to, you know, play victim.
  • Speaker 1
    0:22:34
    Also, to your point, basically heckling the judge and the jury and a rape victim. Just doesn’t seem like a good legal strategy. I mean, so the this is the way it went back and forth. He’s saying things like it’s a witch hunt. It’s false.
  • Speaker 1
    0:22:48
    It’s really a con job. She’s gotten her memory back. So Carol’s lawyer basically objects and says, look, look what he’s doing, your honor. The judge says, look, you have a right to be here, but that right can be forfeited if you are disrupted, which is what has been reported to me if he disregards court orders Then he turns to Donald Trump and said, mister Trump, I hope I don’t have to consider excluding you from the trial. I understand that you are very eager for me to do that.
  • Speaker 1
    0:23:12
    Trump then responds, throws up his hand, says, I would love it. I would love it. And the judge says, I know you would like it. You just can’t control yourself in this circumstance, apparently. And then Trump says in return, you can’t either.
  • Speaker 1
    0:23:28
    Whoa. You know? I don’t know. If you were advising clients, probably would not be on your to do list.
  • Speaker 2
    0:23:35
    So, first of all, judge Kaplan is an extremely fine trial judge, and he is not going to be bated into something rash. He’s I mean, no one’s ever dealt with anybody like Trump before, but this is a very experienced trial judge, and he’s a very, very able experienced guy. But you’re right. I think only to the extent that it’s calculated, and whether it’s calculated or id, I just don’t know. But to the extent that it’s calculated, the only calculation that makes any sense to me is, look, I can raise whatever money with a few bleats.
  • Speaker 2
    0:24:18
    They assess me as liable for. And it’s all a rounding error on the Tish James suit anyway. Right? So whether, you know, she’s asking for three hundred seventy million dollars So the money is actually not important. What’s important is that I stick my chest out and show that I’m not afraid of any of these legal proceedings.
  • Speaker 2
    0:24:44
    And so that’s what I’m gonna do. And I wouldn’t have predicted that any of this stuff would have been effective from two thousand sixteen on. So I’m clearly the wrong one to to ask whether this kind of behavior makes any sense strategically, it is not what you do if you’re trying to minimize liability.
  • Speaker 1
    0:25:04
    This is the dilemma that the judge is faced, and and the judge in the New York case is is faced with the same dilemma. Trump is trying to bait them into doing something that he could use against them or use on appeal. And therefore, including judge Kaplan, you know, he’s basically saying, yeah, I want you to throw me out of this courtroom because then I can play a victim. But that creates the dilemma. You can’t let him get away with this.
  • Speaker 1
    0:25:28
    If you do let him get away with this, you’ll have what happened in New York where he’s basically kind of filibust and, you know, giving his own closing remarks, even though he’s not supposed to, or he is trying to either influence or intimidate the jury, I think, ineffectually, in this particular case, during the the rape case. So either let him get away with it, or you fall into his trap by holding him accountable. I mean, this is kind of the catch twenty two, these judges find themselves in. How do they resolve that?
  • Speaker 2
    0:25:55
    Right. So an experienced judge has a few. And look, the judge in a in a criminal case has more tools than in a civil case.
  • Speaker 1
    0:26:04
    Mhmm.
  • Speaker 2
    0:26:04
    But there are a few tools that the judge has. One is that the judge instructs the jury. And the jury is going to come up with some number here. Right? And the instructions the judge gives can guide whether that number is big, very big, or really big.
  • Speaker 2
    0:26:25
    Right? And the judge has a lot of discretion to do that. So one way to do it is to sublimate, not give Trump what he wants, and just embed whatever you want to punish and sort of fold it into jury instructions. Second possibility is, look, sometimes defending the integrity of the court requires giving Trump what he wants, and you throw him out and And then he gets a win, but you’ve maintained order in your court. The third possibility is I suppose a contempt finding.
  • Speaker 2
    0:27:01
    I think you could imagine a judge particularly on the criminal side where there are conditions of release saying you’re violating your conditions of release, show cause why you shouldn’t be locked up. Now that would be nuclear.
  • Speaker 1
    0:27:21
    So, again, let’s just go back a little bit. You know, this case has already been tried. The jury did find that he had sexually assaulted Carol in this, dressing room at a BergDorf Goodman department store back in the nineteen nineties. She was awarded five million dollars in damages, two million for the rate, three million for defamation. None of this dissuaded Donald Trump who then went on the CNN town hall meeting.
  • Speaker 1
    0:27:42
    It was, like, the next night and made a joke of the whole thing, which has now resulted in all of this. I wanna just restreras that we’re not relitigating all of this. But it is interesting the way this plays out politically because Donald Trump obviously knows he’s he’s not gonna win this case. Legally. He he’s not even playing for it.
  • Speaker 1
    0:27:59
    I don’t think. So he’s going to portray himself as the innocent man. Like, yes, I was upset because I was falsely accused. How would you like to be falsely accused? And then on cue, of course, all of the other Republicans, including the people running against him.
  • Speaker 1
    0:28:13
    Decide to look the other way. And you probably have seen Nikki Haley asked about this, and she says, yeah, I haven’t really been paying any attention to this. You know, he’s innocent until proven guilty. And You know, there are charges against Biden and charges against Trump, and there’s like nothing to see here. And so we’re in this weird world of the asymmetry of the actual trial verdict, Trump’s huge megaphone denying it and the complete inability even of his opponents in the Republican party to say Yeah.
  • Speaker 1
    0:28:41
    You know what, raping a woman should be disqualifying. I mean, Ben, this is this is what we we feel like we have the crazy pills because before two thousand sixteen, It would not have been a close call. Someone found liable for raping a woman would not be supported for president Now, as Mitt Romney says, doesn’t even seem to be moving the needle.
  • Speaker 2
    0:29:02
    Yeah. So this is a really important point, and I think it’s one on which we should we should insist on certain facts. When Nikki Haley says he’s innocent until proven guilty, that has already happened.
  • Speaker 1
    0:29:15
    Yeah.
  • Speaker 2
    0:29:15
    The federal court in New York In a civil case, we’re not talking about criminal. Anything found that he had sexually assaulted her. Found that he had defamed her. This is fact. It is not an allegation anymore.
  • Speaker 2
    0:29:33
    Now He is not criminally liable, but he is as liable for having done this as, say, British petroleum dumped a lot of oil into the ocean. We don’t say that’s an allegation. The courts have found that. Right? There comes a point where you get to drop the in a sentinel proven guilty thing, and you get to say this was something that a court found happened.
  • Speaker 1
    0:30:05
    Well, here’s an analogy. How about the analogy of the OJ Simpson case? OJ Simpson acquitted in a criminal case, but he was found liable in a civil case. So I suppose if you ask Nikki Haley, so do you think OJ’s Simpson, was he guilty? She could either say she never heard of the case.
  • Speaker 1
    0:30:22
    Or say that he’s innocent till proven guilty because, k, criminally, he was not found guilty. Civilly jury, you know, courts did find him liable for the murders. So what do you make of that? You know?
  • Speaker 2
    0:30:34
    Yeah. So, I mean, I think that’s the comparison’s a little bit unfair to OJ because OJ was after all acquitted. In the criminal case, Trump has never been acquitted of this. Trump was given an opportunity to defend himself, did not do so remotely credibly and a jury found in her favor, and then he repeated the libel. We’re allowed to say for purposes at least of the civil justice system that he was found to have done this
  • Speaker 1
    0:31:08
    Okay. So the other drama in the courthouse is the the only the best people chapter eighty nine thousand for Donald Trump. He’s lost some of his veteran attorneys. Joe Takapina has bailed. We don’t know quite why.
  • Speaker 1
    0:31:20
    So he’s left Will Saletan Hava, who is, like, maybe, you know, reasonable on TV, but wow. I mean, you’ve watched courtrooms, you’ve watched cross examinations, Elena Haba. Well, like you tell me, I mean, you know, a lot of lawyers are having kind of a field day over her apparent lack of any lawyering skills. I mean, she can’t impeach a witness with a prior statement. She can’t submit documents into evidence.
  • Speaker 1
    0:31:44
    The judge basically had to tell her, no. I’ve ruled on that. Would you just sit down? I mean, here’s the former president of the United States with somebody who looks like they, you know, barely got out of law school with a d plus. What do you think?
  • Speaker 2
    0:31:57
    So here’s a another word to the litigation wise, you know, Litigation skills are not actually taught in law school. They’re taught in apprenticeships who when people go work for law firms or go work for the government, When you go to law school, you learn legal reasoning, you learn legal writing, you learn, but the actual skills of lawyering are taught in practice. And if you’ve never, you know, done a federal court litigation before, you don’t learn how to do it by watching, you know, special victims unit.
  • Speaker 1
    0:32:32
    No. Really?
  • Speaker 2
    0:32:33
    You really did it. And there are all these rules, and the judges actually do expect you to follow the rules, and they expect you to know
  • Speaker 1
    0:32:41
    in federal court. A
  • Speaker 2
    0:32:42
    federal court rule. But local courts have local court rules, and you’re expected to know them. And you’re expected to know when to stand up and when to sit down and you’re expected to know how to formulate an objection and you’re expected to know what rules you’re citing. And if you’re the former president of the United States, and you surround yourself with people who don’t actually know what they’re doing, but kind of look the part, which he really cares about, you know, people who who look the part or in case of young women, a attorneys. He likes ones that are very beautiful and look good on Fox News, you can end up with some real disasters.
  • Speaker 2
    0:33:27
    And Lelina Hobba’s performance. I mean, obviously, I wasn’t there, but from the press coverage and the live tweets, she really does seem to have not been doing a very good job yesterday. And and I think that’s a really a function of Trump’s selection process and also his inability to retain lawyers once he hires them.
  • Speaker 1
    0:33:54
    In the time we have left, I wanna, briefly touch on, two other cases, what’s going on with the fourteenth amendment case, but also, happening with the Mar a Lago document case. Aileen Cannon continues to be Will Saletan Cannon. She is who we thought she was dragging her feet on this. And then there was this filing by Trump’s lawyers Tuesday night, that signal they plan to accuse the intelligence community of bias against him as part of their defense into why he held on to dozens of these highly sensitive classified documents. This is the New York Times reporting.
  • Speaker 1
    0:34:25
    Lawyers indicated they will seek to prove the whole investigation was politically motivated and biased. His lawyers are requesting reams of documents that they believe can fight the charges. This is a sixty eight page filing. The time said often read more like a list of political talking points than are brief for legal arguments. So where is that gonna go?
  • Speaker 1
    0:34:44
    How is that going to play?
  • Speaker 2
    0:34:45
    Well, so it’s a really interesting problem, and we’re gonna learn a lot about Aileen Cannon and how she handles this. So Trump’s lawyers, both in DC and in Florida, have sought to use expansive discovery, you know, try to raise the cost to the government for litigating the case. Right? You seek to get discovery against as many possible, government agencies as possible. You define the trial team really broadly.
  • Speaker 2
    0:35:19
    And the thing that protects against this is the judge. Right? The judge limits discovery, So then you have a judge like Aileen Cannon, and you don’t really know whether she will serve that function. And you can imagine the discovery here getting very intrusive and very irrelevant. And the government is going to have to fight I think very hard to show her that some of these discovery requests are patently unreasonable But then you get into the problem of what if she doesn’t care, and that’s just one of the problems that you have with her.
  • Speaker 2
    0:36:03
    So I think we’re gonna learn a lot over the next couple of months. I don’t believe the May trial date is stable, but I think we are gonna learn over the next several weeks whether she is going to have patience for and time for basically exploring conspiracy theories through the discovery process. And I think there’s reason to worry about. I don’t wanna assume she’s gonna do something awful before she does, but I I do think it’s something to look out for.
  • Speaker 1
    0:36:33
    What are the options to go to the appeals court or to take other steps What cards does Jack Smith have if they become convinced that Aileen Canada is just tanking this case?
  • Speaker 2
    0:36:42
    Well, there are some. They’re not wonderful. So if she does it in the context of the classified information procedures act, there’s a direct appeal available. So if you’re Jack Smith, what you really want is for the first major outrage by Judge Cannon to be in that department. Then you can go up and maybe if it’s bad enough, you can try to get the court to reassign the case to somebody else.
  • Speaker 2
    0:37:09
    If it’s in some other area, You don’t have a direct appeal available unless it’s super, super outrageous, in which case you could go up on what’s called a mandamus writ. Those are really, really disfavored. And look, the trial judge in a criminal case is the most powerful person in the world, and you know, mostly you cannot appeal trial judge orders on a interlocutory basis. So she has a lot of power here. And she has to do something really, really outrageous before you really have a a vehicle through which to get her reined in.
  • Speaker 1
    0:37:51
    Okay. So let’s talk about the, fourteenth amendment section three litigation. Things seem to be pretty much on hold. State judge in Maine, yesterday, put off deciding whether Trump’s name can appear on that state primary ballot, waiting on the US Supreme Court, Judge ruled that, the Supreme Court has to rule on that case out of Colorado, which did find that, Trump had violated the insurrection clause in the fourteenth amendment. On January sixth and then the days before that.
  • Speaker 1
    0:38:16
    So those arguments in the Colorado case are scheduled for February eighth before the Supreme Court. So we have two big decisions kind of hanging fire. Number one, the, DC Circuit Court of Appeals will hand down a ruling on the immunity question. And then the Supreme Court will have these very high stakes, arguments on the fourteenth amendment. Nothing’s gonna happen before then.
  • Speaker 1
    0:38:38
    I’m guessing. Do you agree?
  • Speaker 2
    0:38:40
    Yeah. I think functionally all the states, whether they’re formally on hold or not, it doesn’t really matter what they do between now and when the Supreme Court rules on that. I’m pretty sympathetic to the court here that just basically says to the Secret Podcast state, hey, you’re about to get some guidance from the Supreme Corps. Why don’t you wait until you have that? The Supreme Court briefing.
  • Speaker 2
    0:39:07
    I think the initial briefs are due today from the Colorado Republican Party. I believe they’re due today There have already been some Amicus briefs filed. So I think we’re gonna have relatively rapid action at the Supreme Court. One interesting question that I don’t know the answer to is whether the court will ask the federal government to weigh in and if so, what the federal government will say. But I think, realistically, now we are waiting for the next real sign of where this is going will be the oral arguments on on February eighth, which will we will learn a lot, I think.
  • Speaker 2
    0:39:48
    And then we will get a ruling relatively quickly thereafter, the DC Circuit ruling on immunity could happen any day, like today tomorrow next week. And the big question there is not what they will do. They will rule against Trump. The question is on what basis they will rule against Trump and whether the Supreme Court will then turn around and review it or not.
  • Speaker 1
    0:40:16
    Unlikely that they will be swayed by Donald Trump’s one AM bleed on truth social. Ben witnessed, of course, the editor in chief of law senior fellow at the Brookings Institute, and most importantly, the author of the dog shirt daily newsletter. Thank you so much for another episode of the Trump trials.
  • Speaker 2
    0:40:34
    Hey, Charlie. We will be back next week and we will do this all over again.
  • Speaker 1
    0:40:40
    Indeed, we will. And thank you all for listening to today’s Bulwark podcast. I’m Charlie Sykes. We’ll be back tomorrow, and we’ll do that all over again too. Boulder podcasts is produced by Katie Cooper, and engineered and edited by Jason Brown.
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