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David Priess: Trump’s Very Bad Day at Court

November 23, 2022
Notes
Transcript

A trio of conservative judges sounded very skeptical about Trump’s need for a special master in the Mar-a-Lago case, and the Supreme Court basically told him, “No, we are not your justices.” Plus, the post-shame culture of Tucker Carlson. David Priess joins Charlie Sykes.

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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 Boulevard Podcast. I’m Charlie Sykes. It is the Wednesday before Thanksgiving, so I’m sure that many of you are already heading out and hopefully, prepared to check out for the four day weekend. And just a quick reminder that tomorrow is podcast. We will have a podcast on thanks giving, but it will be different.
  • Speaker 1
    0:00:25

    We will have the entire Bulwark family on the podcast to reflect on the past year and talk about what they are grateful and I think it will be worth your your time. I think we can take a one day break from the punditry to do that. We wake up today though with another unfortunately quintessentially American story of another shooting in Virginia. I I’ve lost track. Is this the six hundred mass shooting?
  • Speaker 1
    0:00:56

    We’re at the point now where if at the end of the week, we look back and say, well, let’s talk about the mass shooting. You have to say, well, you need to be more specific. Which mass shooting the club in Colorado Springs or the Walmart in Virginia. And so joining me once again on the podcast David Priest who is the Publisher of Law Fair and Cohost of The Weekly National
  • Speaker 2
    0:01:18

    Security Podcast called Chatter. Welcome back, David. How are you? I am okay. It’s it’s horrible to wake up to news like that.
  • Speaker 2
    0:01:26

    And and yet I balanced that with kind of a smile on my face because of what you said about the the podcast tomorrow. Right? This is a chance to give thanks and on chatter, which is the the law fair podcast that Shane Harrison and I co host We just recorded an episode that will also air tomorrow in which Shane and I give thanks. We we spend the time instead of talking to a guest at length about national security related topic. We spent time reviewing what happened during the past year, how grateful we are for our guests and our listeners and kind of putting putting some perspective on the daily dark news.
  • Speaker 2
    0:02:02

    Yeah. That is important. I think we need to cultivate gratitude. I think that we
  • Speaker 1
    0:02:05

    are unfortunately wired to focus on the negative, the bad news. And and I think it takes an act of will to step back and go, okay, what were the good things? Let’s put things in in perspective. You know, I’ve I’ve had this conversation with with a lot of my friends, you know, that that you may have, you know, ninety really good things happen to you. But you’ll focus on the two or three terrible things because I I maybe that’s the way we’re wired.
  • Speaker 1
    0:02:30

    Right? We’re out on the Savannah and we’re wired to worry about, you know, the the the the lion and the tall grass that’s gonna come and eat us as opposed to, hey, that’s a beautiful flower
  • Speaker 3
    0:02:40

    over there. Right? I mean, that’s that’s how we’ve survived as a species, I suppose. Kind of a miserable species. Yeah.
  • Speaker 3
    0:02:45

    That’s how we’ve gotten here. Right? But it also gives
  • Speaker 2
    0:02:49

    us the ability to appreciate the flower more. Because when you are aware of the darkness, when you’re aware of the threat — Yeah. — you can actually step back and appreciate the things that might otherwise blend into the background. Well, let’s come back to this later in the podcast because I wanna I wanna spend a little bit of of
  • Speaker 1
    0:03:05

    time on this. But I don’t know whether I’ve I’ve told you this. I’ve shared this many, many, many time, so people who have been following me over the years know what my reaction is. I I hate the morning after mass shootings. More than anything.
  • Speaker 1
    0:03:18

    I I I really I find it very difficult to talk about it. I think as I get older, I get the sense of the tragedy and the loss the irreparable loss more, but also it is so soul crushing to go back into that doom loop of the same old talking points, the way that we have numbed ourselves to the tragedy, and we just retreat back to the corners of the same old feudal debates in the demagography. And it’s just it’s so depressing because there is this sort of a line that we get from and I’m sorry to say the gun rights advocates that that there’s nothing we can do about these mass shootings that we need to learn to live with it. Well, we are the only country on earth that as quote unquote learned to live with these horrors. And you look at us from outside and people go, no, here’s a sign that America is exceptional in the worst possible way.
  • Speaker 2
    0:04:15

    And it just keeps happening. Well, there is two thoughts, Charlie. One is, yes, I know you and I have talked about this and maybe it was offline or maybe it was on a recording because statistically, I think I’ve been on the podcast often enough —
  • Speaker 1
    0:04:31

    Yeah. —
  • Speaker 2
    0:04:31

    that it would be hard for us not to have recorded the day after a mass shooting that hit the headlines. So so there’s just that, which is a sad statement about where where we are in America today. The other one is that we aren’t the only country that has ever had — Right. — gun violence and mass shootings. Other countries have had some experience with it.
  • Speaker 2
    0:04:51

    The difference is they actually enacted legislation and drastically reduced access to guns, especially certain kinds of weapons, but guns overall and and guess what? It’s not a problem there. This this isn’t rocket science, how this happens. And what I’d like to see and unfortunately it’s it’s still not happening and I don’t know what it will take. But I would like to see people acknowledging that, yes, there there is a role for guns because of our national character, our national experience.
  • Speaker 2
    0:05:22

    There is a second amendment and that isn’t getting overturned anytime soon. Deal with it. I would also like to see the the radical pro gun lobby acknowledge that there’s a difference between different types of weapons and that there are reasonable safeguards that can be enacted. And those need to be much, much more than we have now but we really don’t have an issue with understanding the problem. We haven’t we haven’t issue with getting politically to the solution that is somewhere in the middle, I think more on one end of the middle than the other.
  • Speaker 2
    0:05:55

    But that’s me. Yeah. But I think that there’s a problem with the the politics of getting there, not a problem with understanding exactly what’s going on. Well,
  • Speaker 1
    0:06:04

    at minimum, maybe we should stop fetishizing guns. Politicians perhaps ought to stop posing with heavy firepower or weapons of mass destruction as if they are toys or somehow. Cultural, social signaling. I mean, that would just be kind of a minimal thing here. So, Dave, I have been really reluctant and and just reluctant, not not because I don’t believe there’s a connection between the rhetoric and and the violence, but just I think there’s there’s a point at which you wait for the facts to catch up with the speculation.
  • Speaker 1
    0:06:34

    So I I have been slow in connecting all the dots between all of the anti gay anti trans rhetoric and legislation out there and the shooting because we don’t know what went on in in this young man’s mind. I mean, Kara Swisher has this up as a podcast when she’s on just blended job. She says, you know, all this legislation, all this hatred, you know, Lauren Beaufort saying she feels, you know, this is upsetting, you know, but she’s been right at the forefront of using terms like groomers and petos around gay people and trans people, and this is how you lead to violence. Again, we don’t know what the motivation on the part of this this young man was. But it’s not a binary choice.
  • Speaker 1
    0:07:12

    It’s it’s not it’s not like the rhetoric caused the violence versus no, it’s one crazy person. This is one of the reasons you have to be restrained with the language is because there are un stable, unhinged individuals who might act out, and whether you’re talking about the attack on Paul Pelosi, or whether you’re talking about the attack on the Republican congressman a few years ago or or this. It’s not a choice either or that you’re dealing with one mentally herb individual or the rhetoric. The rhetoric seems designed to spark and flare the mentally unstable actor.
  • Speaker 2
    0:07:49

    Out there. And so I think that’s worth saying. We definitely have a problem with definitions here, which is and and maybe it’s me. I have a hard time finding a word to describe someone who makes the choice to go out and and shoot a bunch of strangers with an intent to kill and and not to put in some kind of mental illness or not put in some kind of, like you said, crazy person taking this rhetoric and running with it. It’s built in.
  • Speaker 2
    0:08:18

    I I can’t find a rational calculation by which somebody would say, this is ethically and practically the right thing to do, and I’m doing this with a clear mind. I think by definition, there’s something wrong with someone who chooses to do that. But the solution to that isn’t to say, it’s a mental health problem, not a gun problem, because what’s happening is people are motivated to do it by the political atmosphere, and and this is not new. This goes back to, you know, even presidential assassinations you had McKinley assassinated by someone who was radicalized, if you will, by the anarchist movement. So this happens in American history.
  • Speaker 2
    0:08:57

    It’s just now it’s not it’s not a one off. Right? It’s literally every day. There are there are the shootings going on, and it’s the availability of weapons. The availability of the rhetoric to justify the violence with those weapons that has led to an epidemic that somehow, societally, we’ve learned to accept as background noise.
  • Speaker 2
    0:09:15

    It’s not background noise. These are people’s lives. These are people living in fear. And I keep thinking, what is it gonna take to to break this? And I’m thinking just in my mind, you’ve all the And that was And I
  • Speaker 1
    0:09:28

    felt way after Sandy Hook. I thought that doesn’t do it. Nothing will do it. Literally nothing. I
  • Speaker 3
    0:09:33

    mean, I was I was that kind of broke me, the Sandy Hook. I think I I am I am in a
  • Speaker 2
    0:09:39

    very dark place when I think about that because it’s it’s horrifying as as as a parent as a member of society. I still have some optimism there, however, because I think it is so apparent that this is a problem that, yes, eventually, there will be some people who go to vote and they do not vote for the congressperson who is posing with guns and smiling and laughing at putting up a target of their political opponent. At some point, the population and maybe it takes a mass shooting in that district. I don’t know. I don’t know.
  • Speaker 2
    0:10:13

    But at some point, people have to turn against that if they have a shred of humanity left. Now, what will it take to get there? I don’t want to think about that that’s too horrible to imagine, but there must be a breaking point. Well, you know,
  • Speaker 1
    0:10:26

    you think about how anti Semitic rhetoric leads to attacks on synagogues. Talk about replacement theory and immigrant invasions leads to shootings like you saw in El Paso. And I have to say that that the the gay and trans community has to be very, very alarmed at the way in which, you know, years long rhetorical attack might spur more violence. I mean, look, this has become this has become a huge thing on the right. It’s not just queuing on.
  • Speaker 1
    0:10:55

    And if you if you’re putting out the message that you’re dealing with pedophiles and groomers and that they are They want to rape or castrate children. There will be people will think if that’s actually true, what is the appropriate appropriate rational response. Well, it is to go out as you can grab a gun member in PizzaGate. You know, this guy, you know, kept hearing these conspiracy theories about a sex ring at the, you know, at common pizza, and he goes there with a gun. Well, okay, he thinks maybe there are children in the basement.
  • Speaker 1
    0:11:22

    And, you know, people like Tucker Carlson, you know, elected officials, you know, have to sided basically, this is their wedge issue to to treat gay and trans people as if they are a threat to everyone else. It’s not just a matter of if you don’t wanna go to what a drag queen show, just don’t go or let’s tolerate, it’s like, no. These people, they pose a threat to you. And even last night, He has a guest on the show. You know, this guest says that shootings like the Club Q shooting are going to keep happening until we end this evil agenda of gender affirming care She says this on the air after the massacre there.
  • Speaker 1
    0:11:57

    I mean, ideas have consequences. This is terrified.
  • Speaker 2
    0:12:00

    Culture War used to be a metaphor, a phrase and now culture war is an aspiration. You have people who actually want this to escalate and it’s clear because after after a shooting like that when Tucker goes on the air and has that kind of rhetoric, I think the goal is is the violence. The goal is to elevate it to a culture war where it brings it all up. And obviously, it needed to be said, but obviously, that’s that’s bad for America in so many ways. And it’s it’s purely unethical.
  • Speaker 2
    0:12:32

    And I don’t understand the producers who go along with that even if if he decides that’s what he wants to see as a literal culture war in America. What about the whole team around him that says, yeah, yeah, we’re
  • Speaker 1
    0:12:44

    we’re on board with this. That’s shameful. What about the Murdoch? You know, who who put them on the air or the advertised? But, I mean, I think we need to understand this is the new culture that you you asked the question, what will it take?
  • Speaker 1
    0:12:54

    Well, you know, we’re old enough to remember when after a horrific atrocity that there would be a moment of sobriety. We we would, you know, rally around. I mean, that there would be a flare up of decency. But now the culture of never apologized post shame means that you have to lean into it. You don’t take a breath and step back and say, okay, Have I contributed in some way?
  • Speaker 1
    0:13:16

    Do I need to dial it back in any way? No. What you need to do is you need to push and say, you know, I am not responsible for this. I am not gonna stop saying these kinds of incendiary things. I if anything, I’m going to double down and I dare you.
  • Speaker 1
    0:13:30

    To call me a race. Remember when Tucker Carlson was a big story in The New York Times about, you know, his over racism and big story. And and Tucker Carlson posed with a picture of this with a big freaking shit eating smile on his face. So it’s like you embrace it, you don’t back away from it, So everything that’s been happening is going to continue and probably will get worse
  • Speaker 3
    0:13:55

    because none of the main actors are gonna learn anything from this or back away from this? Yeah. I I keep coming back to the same place, which is this horrible
  • Speaker 2
    0:14:04

    mix of pessimism and optimism. Right? The pessimism, it keeps happening. I wake up. I see the news.
  • Speaker 2
    0:14:10

    I I I start to wonder, okay, where where is really safe anymore even if you’re not directly engaged in the culture war. The culture war is going to directly engage you. And then I I feel optimism because it’s it’s not just my bubble. You know, it’s not just our our space that we happen to inhabit. You know, I I have a pretty wide network where I grew up of people from a wide variety of views, including some hardcore second amendment, folks who are not the type who want to go out and get involved in a culture war.
  • Speaker 2
    0:14:41

    So even the people that, you know, Tucker may be talking to, He’s making an assumption and taking for granted that that there is this demand for it when in fact some of the people who are the most behind the principle are the most morally opposed to, you know, using those weapons in this way. And so I I have optimism based on that if nothing else. Well,
  • Speaker 1
    0:15:02

    I I wanna talk about the supreme court decision on Trump’s tax returns, America, Ireland’s appointment of the special council, the argument before the eleventh Circuit about special master in the Marlago case, but but just I wanna spend just a couple more minutes here on on what happened in Colorado. Now our colleague, Tim Miller, had a great piece up yesterday where he pointed out, this was preventable speaking of the law. Colorado has a red flag law and it it’s known as the extreme risk protection an order that allows the temporary removal of firearms from people who are considered at risk of committing a violent act. And this is overwhelmingly popular in Colorado. Think something like eighty one percent of coloradans support that red flag law.
  • Speaker 1
    0:15:42

    The governor of Colorado, Jared Polis, was just reelected by a landslide, but But despite that, getting to what what happened here, thirty seven of the state’s sixty four counties declared some form of second amendment sanctuary. Where the local police have refused to enforce the law, one of those sanctuary jurisdictions was El Paso County, home to Colorado Springs. So we have this story of this young man who was involved in this police standoff bomb threat back in two thousand twenty one. Nobody really knows what happened to all those felony charges. Clearly a slam dunk red flag case to make sure that guy never has an AR fifteen.
  • Speaker 1
    0:16:27

    And yet in this second amendment, sanctuary county, you know, the the sheriff, the d a, they all look the other way.
  • Speaker 2
    0:16:35

    Yeah. What
  • Speaker 1
    0:16:36

    do you do about that? Yeah. I
  • Speaker 2
    0:16:38

    wanna I wanna pull out a line that Tim wrote in that great piece on the Bulwark. He wrote god willing the people of Colorado Springs will see this simple reality and replace these zealots with elected representatives who care whether or not their constituents live or die. That really captures it. Right? That’s that’s what we’re talking about.
  • Speaker 2
    0:16:57

    We’re we’re not talking about people changing their their fundamental views on the constitution and its amendments. We’re we’re talking about people actually being willing to uphold the laws that have been passed. And to make sure that there are people who are passing common sense gun laws and avoiding their radical ideological ends. That’s a lower bar. That’s simply getting people to to vote based on this factor among others.
  • Speaker 2
    0:17:22

    Tim put it better than I ever could when he says, you know, we want officials who want their neighbors to be able to go to their place of refuge, whatever that may be. Without fearing that some nut cases packing heat because the people who are supposed to protect them are unwilling to act on the very law they are sworn to uphold. That’s what it boils down to, is electing the right people and then having people enforce the law?
  • Speaker 1
    0:17:45

    Yeah. And I wish I was more optimistic about that. Okay. So Let’s talk about the courts. Supreme Court yesterday.
  • Speaker 1
    0:17:52

    Yep. Cleared the way for Trump tax returns to go to Congress, and Trump is not taking it well. Don’t know if you saw his comment on truth social, because I’m guessing you may not, you know Sometimes I miss that one. So here’s the here’s the here’s the former president lashing out at his own supreme court majority. The Supreme Court has lost its honor, precision standing and has become nothing more than a political body with our country paying the price.
  • Speaker 1
    0:18:15

    They refused to even look at the election hopes of twenty twenty shame on them exclamation point. Lots of random capitalizations there as well. So, Supreme Court without comment appears to be unanimous, clears way for Trump’s tax returns to go to to congress. What do you make of that? I’m going to disappoint a lot of people here
  • Speaker 2
    0:18:35

    and say that I probably theoretically could care less about Trump’s tax returns But on the list of things I’m concerned about, it’s pretty low. And I don’t think that there’s anything there I mean, look, this is a guy who could be indicted for involvement in an instruction against the United States. This is a guy who could be indicted for taking no kidding top secret materials that colleagues of mine defended around the world taking those to his private residence and then refusing to give them up. This is a guy who could be indicted for interfering with electors in Georgia. And his tax return that’s like celebrity financial porn.
  • Speaker 2
    0:19:17

    It’s it’s not that there’s anything substantively in those. Look, the IRS has reviewed those. Obviously, the IRS received them. They review them. They decide whether there’s something that is, you know, needing of an audit and they have investigatory tools to pursue that.
  • Speaker 1
    0:19:32

    The fact
  • Speaker 2
    0:19:32

    that politicians now have their hands on it and that the general public will get to see them. To me, we we are focusing on the wrong thing. Now is it a good step that finally there’s some kind of accountability in that realm too? Yes. But the fact that it took the courts literally years to get to this point points out why people feel a sense of exhaustion about political accountability on all of these fronts because it takes so long to do something that seems so obvious to get through the entire court system.
  • Speaker 2
    0:20:04

    So we spent a lot of time getting to a result that I thought we were going to get to eventually anyway. And I’m not sure that it’s really gonna be that anything beyond titulating when we find out what’s actually in the returns. Now this is going
  • Speaker 1
    0:20:18

    to disappoint you, but I agree with your take on all of this that
  • Speaker 3
    0:20:22

    Wait. Wait. We can’t have
  • Speaker 1
    0:20:24

    that. Well, especially because What are the tax returns going to show? The tax returns are going to show that that that he’s a con man, a crook, and he probably doesn’t pay much in taxes. We kind of refer to
  • Speaker 3
    0:20:34

    the president’s. Right? It’s all that’s
  • Speaker 1
    0:20:35

    all that’s already big enough. The upside of this though is the signal that the court sent to at least Donald Trump that they’re not they’re not his lackeys, and that’s why he is so angry because I think in Donald Trump’s mind, he keeps thinking that the supreme court is his backstop for stealing the election, for overturning the election, for evading the rule of law. And the court is kind of saying to him Donald, you know, thanks for the appointment, but we’re not your justices. And so I agree with you on the taxes, but I think that the signal sent to Donald Trump was was a welcome one. Definitely.
  • Speaker 2
    0:21:10

    And I think it’s again, I’m not going to dismiss that it’s a step in the right direction, and it seems to be from what I’ve seen a proper a proper decision. It’s I just hate the fact that it’s headline news because you’re right, it’s it’s already priced into who Donald Trump is. And I don’t think anything after the summer of twenty sixteen. You know, he vows to release the tax returns as every major party US presidential candidate has done since about nineteen seventy six, so through the lifetime of many Americans, the fact that he then decided, no, I’m not gonna do it, This is old news. Right?
  • Speaker 2
    0:21:46

    We’re talking five years ago that nobody really expected he was ever going to turn them over and it would take a fight to do it. But for what, I still think when we’re talking about insurrection, when we’re talking about interference with electors, and when we’re talking about possessing classified material you’re not entitled to at your beach resort. We’ve got much bigger fish to fry. Okay.
  • Speaker 1
    0:22:07

    So let’s let’s move on to those things. And and I wanna get to your take on I’m very interested to dig your your take on Merrick Arnold’s appointment of a special council. Let let let’s stick with the news of the day, the eleventh circuit Court of Appeals hearing arguments on the special master in the Mar a Lago case, the the panel of judges yesterday down in Atlanta seemed deeply skeptical of the argument that the federal government violated Trump’s rights when they searched Mar a Lago in August. Also, question, whether a lower court judge, a Trump appointee, Aileen that Canon aired in appointing a special master to review the documents seized from the Florida property, I mean, the justice department, is arguing in front of this, it’s kind of known as a conservative panel, argued that the appointment was an intrusion on the executive branch and Trump didn’t prove that the FBI search constituted an irreparable harm. And at one point, Trump’s attorney, James Trusty, argued that The carte blanche search included the confiscation of incredibly personal items like golf shirts and a photo of Celine Dion.
  • Speaker 1
    0:23:08

    I don’t know. But at least from what I’m reading, it didn’t seem that his argument persuaded the judges that this was overreach even though they got the photo of Celine Dion. So what what what is what is your what is your take on what’s going on with the eleven circuit and the special master argument? I
  • Speaker 2
    0:23:24

    think we know with almost certainty that it did not sway the the judges. Because look, the eleventh circuit had already ruled previously on the fundamental merits of the case even though they had a more limited motion at the time, but the logic they used applies to everything that was discussed yesterday. And they made clear that even this, even the most Trump friendly selection of judges on the circuit you could get. I believe two Trump appointed judges and one, George W. Bush appointed judge, although I might be wrong on the balance there.
  • Speaker 2
    0:23:57

    But a if you’re looking for that as a measure of how people will rule, which I think is a much much overrated parlor game, I don’t like it. But even if you go to that point, this this panel already ruled that the logic by which Trump was arguing his main points was invalid. So It would very, very much surprise me if anything comes out here, in fact, the intrepid Anna Bauer, who’s been writing for lawfare on the court cases in Georgia, Absolutely brilliant writer. I refer everybody to law fair today to look at her article called Trump has a bad day at the eleventh circuit. The way she wrote it up after attending the entire session was that the sense around the court was that this time Trump will lose bigly I don’t see any way out of it.
  • Speaker 2
    0:24:46

    The the reasoning the judge Canon used was specious. It it did not have any real weight behind it, and the eleventh circuit has been forced by her, has been forced to embarrass her publicly for that. And they probably could put out ruling today. I don’t know. I’m not sure they wanna rush it — Mhmm.
  • Speaker 2
    0:25:04

    — before the holiday. But because they’d already examined the merits, they’d already written it in a previous opinion, it wouldn’t surprise me if sometime today a full opinion comes out That basically repeats the logic they had already laid out and shows that these arguments are ridiculous. Well,
  • Speaker 1
    0:25:19

    and the constitution of the panel is somewhat significant. Judge William Pryor was appointed by George W. Bush said and he’s one of the most conservative judges in the country. He said, I don’t think it’s necessarily the fault of the government. If someone has intermingled classified documents and all kinds of other personal property, which is kind of a it blows it out.
  • Speaker 2
    0:25:37

    That is the conservative argument, by the way. I mean, that that if you think talk about traditional conservative legal principles, you’re damn right. That’s what you should say. So it
  • Speaker 1
    0:25:46

    it is interesting hearing that from prior, and I probably should throw in here that my my son actually clerked for judge prior in the past. By the way, so my my producer sent me this little note here about, you know, about the Sling Dion photo and and why this brought up that this was in contango. And apparently, one legal analyst pointed out that Trump has various obsessions with her because she refused to sing at his inauguration. And of course, you know, she famously saying memory from cats in a cat costume when she was nineteen years old. Apparently, that was one of Donald Trump’s comfort songs.
  • Speaker 1
    0:26:17

    When, you know, when people wanted to calm him down, they would play memory and doctor Floyd, somebody who’s designated the music man who was part of his entourage used to play the song to sue them when he was enraged according to Stephanie Grisham before Trump. You know
  • Speaker 2
    0:26:32

    what? I and he’s mad or being mad. To the NRA, thinking about cats at this point. But to me, you know, if if I were in a position where I had left my employment at CIA and I had taken dozens or hundreds of classified documents with me up to and including top secret material, things that were restricted, such that not even the people doing the search could all see them. And I had mixed them together with personal photos and personal notes and, you know, embroidered t shirts, do you think that the investigators would care?
  • Speaker 2
    0:27:03

    That’s that’s not a reasonable argument there’s nothing legally to that. Now, there is a point and and this is where the whole special master thing just got to me is A special master makes sense in particular if you are reading a legal office. And you’re going through file cabinets of actual physical paper, and you’re trying to find some specific evidence that the court has approved for this warrant. And you go in but it’s intermingled with a bunch of other attorney client privilege for not only that client, but other clients — Right. — that’s exactly what a special master is useful for.
  • Speaker 2
    0:27:41

    That’s not the case here. The case here that they’re arguing is because it’s intermingled with pictures of Celine Dion and golf shirts, that that is the special master logic. It It just doesn’t seem reasonable for a case of this apparent clarity on the issue of classified material. In the president’s inability or unwillingness to return such classified material when it had been requested to
  • Speaker 3
    0:28:04

    be talking about pictures of singers and and shirts. You kind of think that the lawyer would be embarrassed to make that argument wouldn’t you? Yeah. And that that’s
  • Speaker 1
    0:28:11

    that’s
  • Speaker 2
    0:28:12

    an interesting point, Charlie, is the accountability issue. We’ve we’ve talked a lot, you and I over the years, about political accountability. We’ve talked somewhat about even within party accountability. But there is an accountability within the legal profession here. And when somebody is making the best arguments they can on behalf of their client, that’s built into the system.
  • Speaker 2
    0:28:33

    We’ve decided as a society that’s what we want. We want an adversarial political system, whereby someone is allowed to make legal arguments, even Even if they’re not objectively strong, if they’re the best argument that can be made, we accept that lawyers will take positions that they may not even agree with. But when it’s something like this, when it’s something so egregious that it can violate the ethical standards of the bar — Yeah. — bar associations really need to step up and show that you can’t go into court and just have a fantasy land. At that point, you are wasting the taxpayers money on the endless litigation.
  • Speaker 2
    0:29:08

    You are wasting the patience of America with accountability. And frankly, you’re undermining your own credibility as a borrower association. If you allow that, And every law student coming through is learning a lesson from this, which is, I hope that no holds barred. We get to say anything we want to say on behalf of a client as long as they pay us or in Trump’s case, say they’ll pay us, who knows if they’ll ever get paid. And to me, that’s part of the accountability situation too, as the legal system needs to take a really hard look at itself.
  • Speaker 1
    0:29:37

    Alright. So this leads us to the main event today. Merrick Garland’s appointment of a special council. It seems so long ago, you and I are talking on Wednesday, and this took place on Friday. It doesn’t feel like it was, like, several months ago, but it’s only been
  • Speaker 2
    0:29:52

    several desertations have already been written about this appointment. Right?
  • Speaker 1
    0:29:55

    It’s been five days. So let’s get your take on this. You the lawyer had an emergency podcast today that Garland made the announcement last Friday So with five days of introspection and retrospection, what is your take? I
  • Speaker 2
    0:30:10

    think personally, and I won’t I won’t speak for the others at law fair, but I will encourage everyone to listen to that podcast. Or if you were more of the reading type, there was also a write up of the quick take on that. My personal take is I have not shifted much from a couple of days before the announcement when it had been made clear that if the president announced that there probably would be a special counsel. I’m not sure my thinking has changed other than marginally since then, which is unpopular, but Good. Like, at this point, you have a situation where the attorney general of the United States, apart from the fact that it’s personally Merrick Garland, but just take the position.
  • Speaker 2
    0:30:48

    The attorney general of the United States is in charge of investigating a presidential candidate of a major party who is according to polls, the leading candidate to get the nomination at this point. Somebody who, if he wins the presidency, will remove you from your position as attorney general. It’s — Mhmm. — it’s it’s something that always happens for for that position. I think it’s very hard not to appoint a special council at that point to oversee the investigations.
  • Speaker 2
    0:31:17

    So I think at at one point it’s just ethically there is a strong case for it. On
  • Speaker 1
    0:31:23

    the the
  • Speaker 2
    0:31:24

    other side of it is the the practical implications of it. And a lot of the immediate reaction I saw in social media, but also on some of the quick takes on cable news was, oh, haven’t we waited long enough? Why haven’t they brought indictments already? This is just gonna add years. Look how long the Mueller probe took and all this.
  • Speaker 2
    0:31:44

    Completely ignorant of the fact that they are too very different kinds of investigations. Yes, there had been work being done on some aspects of what Mueller ended up investigating before Mueller was named, that built on an existing investigation. But
  • Speaker 1
    0:31:58

    there was
  • Speaker 2
    0:31:59

    a whole lot of information that had to be uncovered. In this case, a lot of the work is done. And there’s no reason that within days, the new special council cannot be brought up to speed. And then actually probably move more quickly than the justice department bureaucracy could have moved without him being appointed. So I don’t wanna hear the arguments of this will elongate the situation.
  • Speaker 2
    0:32:23

    I don’t think it does that. I think if anything, it speeds up any ultimate decision. And it removes the whole attorney general, Marek Garland, making a decision about somebody who could affect him personally, materially I think it’s a good decision for those reasons. I don’t disagree with you, but I think it would be naive to think that
  • Speaker 1
    0:32:42

    this will somehow insulate the Biden administration. And Merrick Garland from the accusation of of political interference. I mean, it it doesn’t really matter. Right? I mean, Trump Trump is gonna throw whatever he’s going to throw, he’s already attacking Jack Smith.
  • Speaker 1
    0:32:55

    The special counsel for being a, what, a tool of Barack Obama and Eric Holder. I don’t know what that’s about and why he felt the need to to go back. Well, actually, I kind of do know why he’s he’s playing that particular card. So you’re gonna get the same sort of blowback from Republicans and Trumpists. But give me your take on Jack Smith because this also struck me as an interesting appointment without any disrespect, Robert Mueller and Marek Arlin come from a certain generation, a certain tradition, that meant that their conflict with Donald Trump was a little bit asymmetric because these are guys who respect tradition and norms and they’re up against somebody who was specs, neither of them.
  • Speaker 1
    0:33:32

    But Jack Smith seems to be a much more aggressive younger guy who has been cutting his teeth dealing with war criminals. So give me your thoughts on why Jack Smith and what we can expect from him. Yeah.
  • Speaker 2
    0:33:44

    Charlie, you and I disagree a bit on the premises there, which is the Mueller kind of with his hands tied behind his back because he’s old school in Gentile, whereas the president at the time was not. I think it boiled down much more to the fact that Bob Mueller was following justice department procedures, and people who argue that Mueller should have untied his hands from behind his back, taken his gloves off and started punching back the way that Trump punched, kind of missed the point that he could not have been special counsel and he there would have been grounds for removal at that point. And there were already so many calls for his removal based on ridiculous reasons But once you violate the norms of the Justice Department and the regulations of the special counsel, you give ammunition to that otherwise ridiculous argument. And the new special counsel is under the same regulations. The new special counsel is not going to be decidedly different.
  • Speaker 2
    0:34:38

    Now, doesn’t mean that he decides to bring an indictment and Mueller didn’t. Well, they’re two different cases. So you can’t put that to the fact that he’s more aggressive or more energetic than Mueller was. They’re two very different cases. Look, Mueller made very clear in his report that there had been obstruction of justice.
  • Speaker 2
    0:34:58

    He couldn’t say it. Based on the the fact that he he could not under justice department regulations, indite the sitting president, but he laid it out pretty clearly for those in congress who wanted to hear it, most of whom did not, that it’s up to you. This is something that impeachment is the remedy and removal from office is the punishment. And I’ve given you all the evidence you need to do that. And they simply chose not to bring it up.
  • Speaker 2
    0:35:24

    This special council has a different situation, not only is the substance very different. But you’re not dealing with the sitting president and he is not bound by that part of the regulation. And the memo from the office of legal counsel. So I think we are still looking at a situation where there is a more likely indictment than not. But I also know I don’t know I don’t know the special counsel personally.
  • Speaker 2
    0:35:49

    My time, briefing intelligence at the justice department and the FBI to the attorney general and the director of the FBI and those around them introduced me to a whole lot of people of that generation that ended up becoming leaders in the institutions but Jack was not one of them.
  • Speaker 1
    0:36:07

    From people
  • Speaker 2
    0:36:07

    I know who have worked with him and talk to them say, an inspired choice, not as well known a name, but that is not The point here, the point here isn’t to have a celebrity special counsel. The point is to have someone who is well prepared by experience in issues of public integrity, which he is. Who’s experienced in very difficult and sensitive political issues involving judicial choices as he is from the war crimes prosecutions. And someone who’s familiar with the role of an attorney as he is. So I think it’s a I think it’s a good choice and I actually don’t see the Mueller parallel being exceptionally useful here.
  • Speaker 1
    0:36:43

    So I wanna engage in some absolutely rank speculation here. With a fictional scene that I’m trying
  • Speaker 2
    0:36:50

    to imagine,
  • Speaker 1
    0:36:50

    be sitting around the attorney general’s office and there’s, you know, all the top officials there and they’re discussing this. They’ve made the decision okay, we’re going to have to appoint a special counsel because Donald Trump has forced our hand on this. So we’re we’re going to do this. Who, you know, who should we appoint? And I’m imagining that someone is, you know, suggesting, well, we need someone with a lot of gravitas.
  • Speaker 1
    0:37:09

    We need a former retired federal judge or, you know, former attorney general. We need someone. You know, somewhat of the Robert Mueller, you know, cat. And then somebody else will throw out other names of various US attorneys or other prosecutors. I’m trying to imagine what the I think you’ve already answered this question was, that somebody then says, no, we ought to go for somebody really young and aggressive.
  • Speaker 1
    0:37:34

    And not worry about the gravitas thing. Let’s go for this guy. How do you think that conversation went? Because it it is an interesting choice. And I mean, there is that default setting when you think about the special consoles in the past.
  • Speaker 1
    0:37:47

    How you go for people with, you know, big reputations and lots of weight, you know, who’ve sat on you know, bid on Supreme Court shortlist. Remember when when Ken Starr was was a heavy wind for a federal judge and everything? So they they went for this guy. Did they go for him because he has the reputation for moving fast and breaking things and being an attack dog? This unkind way of putting it, but now Yeah.
  • Speaker 1
    0:38:09

    I’m not sure about that. I’m
  • Speaker 2
    0:38:10

    not sure I can get in their heads and get to that point. But but two thoughts occurred to me, Charlie. One is that first I don’t think this was something that came up a couple of days before the announcement that they thought, uh-oh, you know, we we gotta get our heads together and figure out who it is. Okay, let’s start brainstorming candidates. I think the possibility of a the need for a special council was such that this is probably something that they had been considering at the highest levels of the justice department for some time and looking at everything from potential conflicts of interest.
  • Speaker 2
    0:38:43

    To experience. So I don’t think it was a rush decision. I also don’t think it was age based. And honestly, I don’t know Jack Smith’s age I know he had been working as a US attorney back to the nineteen nineties, so he’s gotta be above a certain age, at least, and his experience definitely shows that he is not a hard charging twenty something who’s coming into this job. They found
  • Speaker 1
    0:39:05

    somebody who
  • Speaker 2
    0:39:06

    checked several boxes that I think you had to have and did not check one box that I think it’s arguable whether you want or not. The boxes you had to have is somebody I think who has prosecutorial experience. And with his work, at the US attorney’s offices. He’s he’s got that. The fact that he had worked on public integrity cases, corruption type cases, I think, is if not necessary, was a very good thing to have in this case.
  • Speaker 2
    0:39:31

    And honestly, I think the the war crimes experience, I think having something that sensitive, something that requires very tough judgment calls not only on the law, but on the situation around the law is just the kind of the kind of experience, the kind of miles on your car you want when you’re driving forward on a a tough road like this. The one that I’m not sure you needed to check was the Celebrity. Right? The the name because I’m I’m not sure who else I don’t know. Would be out there and available, you know, William Webster.
  • Speaker 2
    0:40:01

    Could be a good choice, former CIA Director, former FBI director, well up there in years. He has more experience than I think most living people combined on some of these issues, but he doesn’t check all those other boxes in the same way. So, yeah, it would be easier for the new stations to quickly write a profile of a judge Webster if he were nominated to do this, but he he might not be the right person by experience for the job Plus, to the to the extent that it is someone who is well known and somebody who has that that name recognition, that gets away a little bit from what the special council is supposed to do. The special council isn’t supposed to be out there making a public case during the investigation. And The Mueller investigation got a lot of criticism because they had a communications person who routinely would just say no comment and paid not to interact and give substance to the press.
  • Speaker 2
    0:40:53

    But that’s what this is about. This this is supposed to be an integrity based investigation. This is not supposed to be a public spectacle. So I’m pretty pleased with the choice. Again, I don’t know him personally, so I can’t speak from personal experience, but from everything that I’ve seen and from talking to former colleagues who did have exposure
  • Speaker 3
    0:41:11

    to him and his work, I think it is a I think it is a very good choice. So David, William Webster is ninety eight years old. Yeah. That’s
  • Speaker 1
    0:41:21

    probably
  • Speaker 2
    0:41:22

    one of the reasons he was not
  • Speaker 1
    0:41:24

    chosen. I actually a couple of the seconds ago that, oh, he’s, like, a hundred years old. And then I looked him up and he was actually born in March of nineteen twenty four. So And I got a really good idea that if
  • Speaker 2
    0:41:32

    that if his
  • Speaker 1
    0:41:34

    name came up, yet everybody’s in line.
  • Speaker 2
    0:41:35

    What are you smoking? I can’t tell you though. I think I have not talked with him in the last couple of years, but it wasn’t much before that. Probably three years ago that I had a healthy conversation with him, sharp as a tack. I don’t care what age he is.
  • Speaker 2
    0:41:48

    He was still really sharp and insightful. So he came to mind immediately when I thought, special counsel, are they gonna try to get somebody with a name like Mueller? Because there aren’t that many people who fit into that circle. But no, I’m I think Jack Smith is a good choice, and I think he’s probably working hard on it already. Well, I like the fact that Andrew
  • Speaker 1
    0:42:07

    Weitzman was so impressed I think, you know, having seen all of this up close and from the inside, you know, one of Mueller’s top aids and and he thinks this was a good choice. So as we wrap up, David, I think it’s important to acknowledge that we are going to the Thanksgiving holiday and This has been an eventful year for you. It’s been an eventful year for me. I’m gonna save most of my comments for tomorrow’s pod cast, which I would strongly recommend is we have the whole bulwark family coming in, you know, taping, you know, recording to what they are grateful for. But let’s just talk about this because, again, I I think this is something we need to cultivate gratitude.
  • Speaker 1
    0:42:44

    So David Priest Twenty twenty two. What
  • Speaker 2
    0:42:46

    are you grateful for? Wow. So much. It has been a difficult year, personally, and perhaps the most difficult of my life, and yet that somehow has made me feel more more grateful for things that have happened around. We can talk politically as we have before.
  • Speaker 2
    0:43:01

    I’m grateful for independent voters. Because I think independent voters are the ones who are in some sense the conscience of the nation. Not to say that there aren’t ethical calls on either side of the political spectrum, but when tough decisions need to be made sometimes, I think independent voters do that. And along with that, the political courage of people who will claim that they’re not being politically courageous like our friend, Adam Kinzinger and Liz Cheney — Mhmm. — but the people who are willing to speak truth even when it’s personally disadvantageous for whatever their immediate goals might be.
  • Speaker 2
    0:43:35

    Broadening it out though,
  • Speaker 3
    0:43:38

    I think
  • Speaker 1
    0:43:38

    public servants.
  • Speaker 2
    0:43:39

    And you can see that as military service. You can see that as civil service. You can see that as election officials. The people who make our system
  • Speaker 1
    0:43:48

    work frankly
  • Speaker 2
    0:43:49

    are not the leaders. It’s it’s it’s not the president. It’s not the speaker of the house. They have important roles in the system. Yes.
  • Speaker 2
    0:43:56

    But it’s the tens of thousands, hundreds of thousands of people ranging from, you know, people working at customs on the border, people working as election officials people working at the state and local level. And we tend not to appreciate them except in times of crisis, so it’s good to reflect back.
  • Speaker 1
    0:44:15

    On that
  • Speaker 2
    0:44:15

    because of some
  • Speaker 1
    0:44:16

    of the personal difficulties.
  • Speaker 2
    0:44:17

    So you know all of these things, Charlie, but not everyone does my our dog passed away at the beginning of the year — Mhmm. — which was rough. And then we brought into our home, Ollie, and we rescued each other. And he’s our new our new companion. But not long after that, my father suffered and and passed away.
  • Speaker 2
    0:44:37

    My mother is insignificant. Decline, and it’s just been a a really challenging year. And yet, I find myself feeling such gratitude towards medical personnel during the pandemic. At the start of it, there was a wave of support for medical personnel and I fear that we’ve lost some of that and yet in many ways the crisis isn’t over for them and they’ve got to deal with all kinds of issues. And I’ve seen that up close and personal in myriad ways.
  • Speaker 2
    0:45:05

    And I just can’t be I can’t express enough gratitude for the doctors, the nurses, the support staff, who do their best in the most difficult of situations, and somehow make it work. Those are the thoughts that immediately come come to mind. Again, if you listen to the episode of chatter that will post tomorrow, you’ll hear some more Professional thanks for the many guests, for the many listeners, and for the support staff at law fair and our audio partners there But we have to remember, Charlie, that even as we focus on what could be better and what must be better in order to have a a just equitable society. We we
  • Speaker 1
    0:45:46

    need
  • Speaker 2
    0:45:46

    to build on success. And a lot of that success comes from recognizing it and being grateful for what people are doing in the right way at the right time for
  • Speaker 1
    0:45:56

    the right people. And thanksgiving is a wonderful chance to do that. And I think that loss and challenge makes you appreciate what you have. You you have a different sense about time and about the fragility of the things that you care about and appreciate the more. I always used to sort of, you know, have this sort of bizarre fantasy that, you know, a hundred years from now if I could come back for one day.
  • Speaker 1
    0:46:22

    What what I want to experience? What part of my life would I like back? And now I’m in a mode of thinking, no, you’re living it right now. It’s it’s not it’s not the bonus time that you can come back to. It’s it’s it’s what you experience every single day.
  • Speaker 1
    0:46:38

    And I think this is a hard thing, you know, anytime losing a parent and people have gone through it. I I think there’s this myth out there that that at some point you get to the age where you are ready. For that. And the and the real secret, I think, as you know, is that you’re never ready for that. You’re never ready to be an orphan.
  • Speaker 1
    0:46:52

    You’re never ready to lose that that link with with the pastor. But it really does emphasize though all the things you should be grateful for the years that you had together and what you still have now and to and to hold a little bit tighter
  • Speaker 2
    0:47:07

    to that. Mm-mm. Absolutely, Charlie. And I and I look forward to hearing your reflections and your your gratitude tomorrow on the episode that will be on Thanksgiving. And let me wish you and everyone there at at the bulwark and out there listening a very happy and relaxing Thanksgiving Day.
  • Speaker 2
    0:47:23

    Thank you so much, David, and thank you for coming back on the
  • Speaker 1
    0:47:26

    podcast. And thank you all for listening to today’s Bulwark podcast on Charlie Sykes, as David just mentioned. Tomorrow, we will have a special thanksgiving podcast, and you’d be grateful. You’d be too deaf. You’re worried about the economy.
  • Speaker 1
    0:47:48

    Inflation is high. Your paycheck doesn’t cover as much as it used to, and we live under the threat of a looming recession. And sure you’re doing okay, but you could be doing better. The afford anything podcast
  • Speaker 2
    0:47:57

    explains the economy and the market detailing how to make wise choices on the way you spend and invest afford
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    0:48:04

    anything talks about how to avoid common pitfalls, how to refine your mental models, and how to think about how to think. Make smarter choices and build a better life. Afford anything wherever you listen.
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