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Franklin Foer: Donald Trump Will Be Indicted

October 25, 2022
Notes
Transcript

It will be a terrible spectacle, there may be violence, and the country could be torn apart, but Trump’s autocratic, undemocratic behavior cannot go unchallenged. Franklin Foer joins Charlie Sykes to make the case that Trump’s indictment is inevitable.

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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
    0:00:00

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  • Speaker 1
    0:00:26

    At bolen branch dot com. That’s bolen branch b o l l a n d branch dot com promo code bauler. Welcome to the World War podcast. I’m Charlie Sykes. Well, after observing Merrick Garland for months, and talking with close friends, former deputies, and clerks, and interviewing the attorney general himself.
  • Speaker 1
    0:00:55

    Franklin four, believes that Garland is preparing a case against Trump, which could make Garland the first attorney general in American history to indict a former president and in his rather extraordinary piece in the Atlantic, four writes that based on Garland’s record his devotion to procedure, his belief in the rule of law, and in particular, his reverence for the duties’ responsibilities and traditions of the US Department of Justice that that will make him make this monumental decision. And Franklin, for staff writer for the Atlantic joins us on the podcast today. Thanks for coming on Frank. Thank you so much for having me. Well, as I said to you before we started, I think is the most interesting topic in America today.
  • Speaker 1
    0:01:37

    The question, what will the justice department do? So you write the inevitable indictment of Donald Trump. But before you get to that, you lay out I think rather masterfully, you know, why you think Garland will act? You walk through the very strong reasons that Merrick Garland might not bring an indictment of this the the reasons that that will be presented to Garland not to move ahead. So let’s let’s walk through this.
  • Speaker 1
    0:02:07

    Because this is a, you know, has to be one of the most difficult decisions any attorney general might be. So what are the reasons not to act?
  • Speaker 2
    0:02:15

    So they’re the they’re the screamingly obvious ones, which are that it he may not be able to bring a case against Donald Trump that if you’re gonna go after a former president of the United States and and which means that you’re in effect shattering some norms that have held in this country. Unlike France, Israel, or Ukraine, we don’t have a long tradition of indicting former heads of state. And so I think that when it comes to indicting any public official or former public official, there is this inherent deference to the choice of the voters and this reluctance for the justice department to interfere in elections. And so I think that there’s there’s a lot of natural hesitancy that just comes with the weight of breaking with that tradition. And and a desire not to get it wrong, especially.
  • Speaker 2
    0:03:06

    If you’re breaking with that tradition. Then then we get to the fact that the trial itself is likely to be one of the most unusual, maybe terrifying spectacles in American history. So if Donald Trump were to be indicted, he would likely be indicted in within within the next year. And he would be not just a defendant, but he would be somebody who is actively running to be president of the United States. And so every decision that the justice department would make in the course of a trial would be weighted with this perception that they were somehow penalizing or hamstringing a presidential candidate.
  • Speaker 2
    0:03:49

    So very elemental questions about, like like the the travel restrictions that would come with bail would be so complicated. Because if you if you gave the same restrictions on Donald Trump that any other defendant would face, he wouldn’t be able to travel to his rally. So I’ve been just to to sum sum up, it’s it’s Trump is also somebody who battles the legitimacy of everything that he touches. And he would no doubt attempt to try to destroy the legitimacy of the judge and the jury in this trial And so that would attempt to judge to impose a gag order on Trump, which is what a judge would do in normal circumstances. But that would mean that you were gagging a presidential candidate.
  • Speaker 2
    0:04:34

    It was likely trying to use his trial as a means of jitting up enthusiasm for his candidacy. So it’s just a devilishly complicated series of questions that America Olin faces. And I think that from the outside, there’s this temptation to view it all as just so simple, especially among a lot of Liberals and never Trumpers who’ve who’ve watched Trump do so many things that are just week of criminal wrongdoing so consistently. But I think we need to, you know, pursue those things, but we also need to respect the fact that this is also a test of civil liberties because one of the foundations of our rule of law is how we treat our political enemies and that we assert at the very foundations of our system that our our enemy should be treated with the same set of rules and procedures and the same mindset with which we treat our friends. Well,
  • Speaker 1
    0:05:28

    I mean, you you walk through this and and, you know, Garland has to be repelled by this drama and this would be the the ultimate stress test for the justice department. I mean, as you point out, it’s one thing to prosecute a former president, but also to prosecute a former president of the opposing party. I mean, that is — Yes. — it’s up. And then and then the the almost insoluble dilemma of the trial that you laid out because he’s supposed to.
  • Speaker 1
    0:05:53

    I mean, you know, if if the whole point is upholding the rule of law, then you have to hold Donald Trump. You have to hold him to the same standard and treat him the way that other defendant’s accused of serious crimes would be. And as you point out, wow, the implications of that, you know, would he would he have to I mean, would he have to be confined to the district for rallies if, you know, this is a guy that’s gonna, you know, in the
  • Speaker 2
    0:06:15

    middle of
  • Speaker 1
    0:06:15

    the campaign. And then as you also point out, I mean, there have been the hint of violence if he’s indicted, if you if he’s charred. And, you know, you you point out, I mean, the courthouse could, you know, for again, Merrick Garland, who does not want drama, this would be the ultimate drama. You’d have maybe paramilitary groups, maybe counterprotesters, there might actually be street clashes for all of this. I mean, as you point out, the trial could supply a climactic flashpoint for an era of political violence, and Trump obviously would make it as you described a carnival of grievance.
  • Speaker 1
    0:06:51

    So Look, Garland, you said that such a spectacle fills Garland with Dred, his friends say. Dred?
  • Speaker 2
    0:06:58

    Yeah. So you have this guy, Barrett Garland, who is a creature in some respects of the judiciary, the the Washington legal establishment of the justice department. I call him a hyperprudential institutionalist. He is somebody who is cautious by nature when I talk to one of his best friends early on who knew he shouldn’t say anything to try to ding his friend, admitted to me that his family dreads getting in the car with Merrick Garland because he is such a slow driver. I mean, he’s He’s a meticulous rule follower.
  • Speaker 2
    0:07:30

    Every stop sign, every speed limit is is just meticulously obeyed by this guy. He’s somebody who his career as a jurist was consisted of him writing very narrow opinions that would achieve consensus. He was a very bipartisan judge. None of his decisions were overturned, I think reversed by the Supreme Court. He always had an eye for understanding what the Roberts court would accept.
  • Speaker 2
    0:07:58

    And so that’s who he is. I mean, he’s he’s somebody who who cares deeply about protecting the legitimacy of the justice department. He’s somebody who get yearns to restore civility to American life. He’s somebody who is nostalgic for a time when Democrats and Republicans were able to get along. And so the idea of indicting Donald Trump and unleashing all of these forces that could break America is something that I think he he approaches with the greatest trepidation.
  • Speaker 2
    0:08:31

    It it fills him as you said with just pure dread. So, I mean, you know, there have been a lot of critics earlier rather than
  • Speaker 1
    0:08:39

    more recently who were concerned that Garland lacks the fortitude for this moment that he is just like not the right man for the moment to take on Donald Trump. And we’ve heard complaints from members of the January sixth committee about his his tentativeness And yet with all of that, you think he’s going to do it anyway.
  • Speaker 2
    0:08:58

    So I think we need to break down that cases against Donald Trump that he is considering right now. So you have the cases that are related to January six, and election subversion. And, you know, those cases are percolating along at a pretty slow pass. And he had a theory about how he would approach those issues. And and the analogy that he used was really, like, breaking up a drug cartel where you start at the bottom and then you work your way from the street dealers, you work your way up to the kingpin.
  • Speaker 2
    0:09:32

    And Right now, he’s just gotten beyond the street dealers. He’s he’s I think he doesn’t get enough credit for the indictments against the heads of the proud boys and the oath keepers and the significance of trying to dismantle the leadership of the the most ominous pair railway pair militaries in the country. But he’s yet to really get very close to the White House in either of those those prosecutions, although there’s evidence that Mark Short, who is vice president Pence’s chief of staff has kind of come in and out of the grand jury room subpoenas have been issued to state legislators involved with the state collector schemes. Those are rolling around, but he hasn’t really pushed those cases very hard. I think that his approach to those cases is if if I’m seen as putting the thumb of the Biden administration down on the scale of justice to try to hasten indictments in those cases, then I’ll be accused of politicizing those investigations.
  • Speaker 2
    0:10:32

    And so I think that’s the source of some of the criticism. But then as that that those investigations have rolled along, we’ve had the Mar a Lago documents case bubbled up to the surface. And I think that that case is different for a couple of reasons. And I think it hits Marigarin’s sweet spot in a way in which the January sixth cases were were just more complicated. At first, just as a matter of law, the cases are just much more black and white.
  • Speaker 2
    0:10:59

    And so when you go searching for intend or trying to prove the very complicated elements of of a case. Mar a Lago, it just it just all lays out very, very neatly for him. So there’s that. I think that’s an important distinction. The other important distinction is that when Trump has responded to the raid on Mar a Lago, he’s done so by basically thumbing his nose at the justice department.
  • Speaker 2
    0:11:27

    And thumbing his nose at the rule of law. And those just happen to be the two things that the ever cautious America Land becomes very emphatic and passionate about because those are key pillars of his worldview. Those are things that he’s worked on for the entirety of his career. And so when Trump says that the justice department planted evidence against him and when Donald Trump unleashes a wave of attacks on the FBI. Those are very triggering things from America, Ireland, and I think very emboldening things for him.
  • Speaker 2
    0:12:01

    And then he said all along. He said nobody is above the law. And he repeats this endlessly. He gets very frustrated when people don’t believe him when he says this. And Trump is just simply acted as if he’s above the law, as he’s negotiated with the justice department.
  • Speaker 2
    0:12:20

    So I think morally, legally, just to kind of in his guts this is something that’s just much clearer to him than January six. So
  • Speaker 1
    0:12:28

    do you think that does does Garland go big Or does he go for the low hanging fruit? You’re talking about it being in the sweet spot. Would he be more inclined to say, let let’s go with what may be a technical case, but but that I think of as as airtight and slam dunk if there is such such a thing, would you be more inclined to go for a more global charge. Do you understand the question that you
  • Speaker 2
    0:12:51

    Yes. I do. I do. Okay. Yeah.
  • Speaker 1
    0:12:53

    And so I just
  • Speaker 2
    0:12:54

    don’t think Merrick Garland thinks that way that I I don’t you know, as a judge, he he was somebody who didn’t actually have a real judicial philosophy. He wasn’t he wasn’t oppressive. He didn’t adopt any of the living constitute constitution there was never a philosophy. He really had kind of I I apply the law in each case as I as I see it. And so I think the same applies here that he’s not he’s trying to approach each case on its merits.
  • Speaker 2
    0:13:25

    I don’t think that he’s thinking strategically about how the law is applied. And I think that’s both the strength and the weakness. To when that he approaches things. So when he looks at Mar a Lago, I think he’s not he’s able to put it in a silo where he’s not actually thinking about these other investigations. At least at least, I think consciously that’s what he’s doing.
  • Speaker 2
    0:13:47

    I think, subconsciously, it’s hard not to be strategic when one thinks about all of these things and it’s hard not to think about the interrelationship between these two or three or however many we decide to chop it up into investigations that the justice department is pursuing. See,
  • Speaker 1
    0:14:03

    you’re right. If gone has a time seemed daunted by the historic nature of the moment that is at least in part because he appreciates how closely his next move will be studied and the role it will play in hitting off or not the next catastrophe. So in terms of all of the dread that he might have about the carnival and the blowback. He’s now at the moment where he has to weigh that the the possibility that there are worse consequences for not acting. Than for acting.
  • Speaker 1
    0:14:33

    I mean, he has has those two buckets. What in fact is riskier? Is that one of the calculations he makes in his mind? That he knows the risk of acting, but he has to be aware of the profound long term risks of not acting.
  • Speaker 2
    0:14:48

    So I think he’s been thrust into one of American legal histories, great, lose lose proposition. Yeah. And so He can you know, if if he indicts Trump, he risks igniting a civil war. If he doesn’t indite Trump, he risks letting autocratic anti democratic behavior pass. And so if he indicts Trump, the justice department’s legitimacy is is wrecked.
  • Speaker 2
    0:15:15

    With the right wing. If he doesn’t invite Trump, his his credibility the credibility and legitimacy that just sort of is is wrecked with the other side. And so you know, I think in the end, he’s kind of in this position where he just has to apply the law, and he he has to act as kind of a man of conscience, and he has to do what he thinks is the right thing. Because I think that there’s no other way to sort through the other externalities of this case, because they’re just also terrible. And again, if I if you think about your place in American, his story, which I don’t think he consciously will, but I think subconsciously that there has to be a consideration that’s bumping around his brain.
  • Speaker 2
    0:16:03

    You know, I think not acting here is really the the greater threat to one’s legacy than acting.
  • Speaker 1
    0:16:10

    So you’ll also write that that that Merrick Garland in twenty twenty two is not the same man who was sworn to the office last year. We talk about history thrusting certain roles on him. Mhmm. But this job has also transformed him. Talk to me about that.
  • Speaker 2
    0:16:26

    So one of the so when he came into office, it there’s this really fascinating Tableau on January seventh twenty twenty one. So that’s the day that that Biden introduces him as his attorney general in Bloomington Delaware during the transition. And so Biden officially names him as his nominee the day after January six. And so if you go back and you read the speech that Garland gave that day, it’s just interesting because he’s kind of caught He’s caught in a moment that he hasn’t kind of raised up raised up to catch yet. And so he he talks about restoring the justice department to its pre Trump status quo.
  • Speaker 2
    0:17:10

    And the whole speech that he gives that day is really about restoring norms, restoring the institution, restoring the justice department’s reputation for being an apolitical bastian of fairness. And so clearly, when he came into office, he was looking backwards, not to January sixth, but looking backwards to all the harm. That Trump had done the justice department over time. And his goal was to to be the institutionalist attorney general. And in that speech on January seven, twenty twenty one, there’s really only one fleeting, glancing reference to January sixth.
  • Speaker 2
    0:17:50

    It’s kind of it’s kind of extraordinary how in his opening remarks that momentous day failed to really imprint itself. But the thing about being attorney general is that you have one of the most panoramic views of American life. That when you touch the judiciary, you touch the national security apparatus, you you touch the FBI, all these things are within your portfolio. You actually have this really incredible picture of American Life circa twenty twenty two. And I think everything that he has learned as he’s done this job has led him to, you know, I wouldn’t call it a more radical view, but I would call it a more realistic view of the crisis of American democracy.
  • Speaker 2
    0:18:37

    And so for somebody who came in as a consensus minded institutionalist, I think as he’s seen the the very fragile state of American democracy and all the threats that are looming out there against the Republic I think he’s arrived at a different position, which is more hard edged, more confrontational, more pessimistic, than the Merrick Garland that arrived. And I think that that becomes the backdrop as he processes these very, very big decisions that we’ve
  • Speaker 1
    0:19:12

    been discussing. So you interviewed him in his office back in June. Yes. And was this the topic at the time? And was that of the point of the interview.
  • Speaker 1
    0:19:21

    I wanna talk to you about whether you’re
  • Speaker 2
    0:19:23

    gonna prosecute Donald Trump, but tell me about the interview, how it came about. I told him I wanted to write a profile of him. And this was before well, before the Mar a Lago raid. Although, I I don’t know if he was he was even considering them at that at that moment. I kinda It was probably even before he was forced to make his big decision about whether to raid Donald Trump’s speech club.
  • Speaker 2
    0:19:45

    And so I wanted to I wanted to talk to him about his approach to the law more generally and how he thought about his tenure as attorney general. And that was a person that I took because I felt like, well, first of all, you know, hey, what are the things about doing a piece of journalism? Over the months is, like, it it just changes because you learn things and then the world changes. And so I didn’t actually think that I was gonna write a piece that would so sharply come down on this question of Willy or wony, but that just seemed the most important question to answer as I’ve finished my study of the guy. And also, I just kind of knew better than to ask him directly about the investigation, like, over and over, which is what reporters tend to do because I knew what his wrote response was to that question.
  • Speaker 2
    0:20:37

    And so I really wanted to kind of just get inside of his head. And so just to be clear, he did nothing to tip his hand. He’s he’s so tight lipped. His caution certainly extends to the way that he talks about his about ongoing investigations and certainly extends to the way that he approaches the most important investigations that he’s doing like this one. Wait.
  • Speaker 2
    0:20:59

    And you also
  • Speaker 1
    0:21:00

    had an interesting little detail, you know, that he’s a little bit nostalgic the time when he was working with, you know, that attorney general Benjamin Civiletti during the car the Carter in administration. And he referenced this tattered blue book on a side table in his office principles of federal prosecution that was published back then. And you asked him, if he had anything to do with the publication, and he told you that he helped edit it, so it struck you at the time. He wrote that, Garland isn’t just a buy the book guy. He is the book.
  • Speaker 1
    0:21:30

    Yes.
  • Speaker 2
    0:21:31

    Right. This is the problem. So the justice department was recreated in the wake of Watergate because the Nixon Administration as things came out in the wash, a lot of other previous administrations, had really abused the Justice Department to try to help friends and try and certainly in the course of Watergate to protect Richard Nixon himself. And so you have a succession of three very interesting attorney generals in the nineteen seventies. The first is Edward Levy, who was appointed by Gerald Ford, who’d been the president of the University of Chicago.
  • Speaker 2
    0:22:02

    Really fascinating guy. Garland reveres him. He put his picture up in the conference room right outside of his office, and he cited him in the first speech that he gave as Biden’s nominee to to the job. And it’s somebody who’s kind of come back to you. Time and again is a model for how he wants to do the job.
  • Speaker 2
    0:22:20

    And the third of these attorney generals appointed by Jimmy Carter was a guy called Ben Civelletti. And Garland, who was in his mid twenties, was named as one of his primary aids. And so he was just he was just a young buck who was kind of sitting at the center of all of this movement to try to recreate a new justice department that would never be susceptible to the abuses perpetrated by the Nixon administration. And so they created just a whole new set of norms and policies that changed the way that the justice department worked so that it would be a political so that it would be relentlessly fair. And Garland was at part of all that.
  • Speaker 2
    0:23:03

    He didn’t just he wrote the updated that book that you described. And this comes full circle when he’s attorney general now. One of his first acts as attorney general was to rewrite a memo that he’d written when he was in his mid twenties, which was something called the no contacts policy — Mhmm. — which strictly forbids the Justice Department from talking to the White House about ongoing investigations. And Bill Barr had pulled back that policy during the Trump administration and and Garland felt so strongly about it that it was kind of it was the thing that he spent his first week on the job working on.
  • Speaker 2
    0:23:38

    And it was it was that yeah. Garland is the type of guy who when he’s working on a memo like that, when he cares so deeply about it. He’ll do a lot of the writing himself, and I’ll edit every word and just this in over ten to very meticulous, very thoughtful way, which is almost painful to a lot of his his aids to have to witness because it’s so it’s so painstakingly excruciating, but he does it because it’s something that he cares so much about. So to me, this is, like, the most important context for the way that he’s approached everything. It helps explain some of his slowness on the front end And then I think it helps explain why I think he’ll get to the point of indictment on the back end.
  • Speaker 1
    0:24:25

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    0:24:41

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    0:25:03

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  • Speaker 1
    0:25:33

    That’s bolen branch b o l l a n d branch dot com promo code bulwark. So when he talks about, you know, how he handles complex emotionally fraud investigation, he cited the bombing of the Oklahoma City federal building back in nineteen ninety five. He was the principal associate deputy attorney general back then he had to go to Oklahoma City to oversee that investigation. So, you know, that’s an interesting sort of counterpoint to this sort of just buy the book guide because that was about as high profile and difficult an investigation and I mean, not difficult to get a conviction, but just in terms of high profile. So he is no stranger to high profile, high media type events, although obviously you also mentioned that there was also the OJ Simpson trial at the time and seemed to would kind of imprinted on his mind that he doesn’t want to be part of any kind of a circus like that.
  • Speaker 1
    0:26:28

    Well, it was it
  • Speaker 2
    0:26:29

    was really interesting. And so Oklahoma City was an assignment that he actively saw. And it was not an orthodox assignment for somebody who had his job, which is the principal associate deputy attorney general. Talk about a a Washington mouthful. They call it the paid egg.
  • Speaker 2
    0:26:45

    And so he would sit in meetings with Janet Reno, who was the attorney general then. Who is somebody he also reveres because she was so apolitical. Gina Reno, just I’m just because I know your audience is is nerdy enough to enjoy these types of digressions. Just kind of parenthetically Janet Reno was somebody who was kind of despised at the time by the Clinton administration and Democrats because, of course, she appointed can start and she was she was so by the book in how she dealt with the Clinton scandals that she ended up imperiling her own administration that’s somebody who, I think, exerted a lot of influence on America. I’ll let somebody that he speaks of.
  • Speaker 2
    0:27:27

    In kind of the same referential way that he speaks of Ed Levy, who is your old Ford’s attorney general. And so, yes, you know, if you go off to Oklahoma City to oversee the investigation of the bombings. And she agreed, and before before he left for Oklahoma City, she pulled him aside, and she basically told him, you know, you gotta be you’re you’re doing this investigation as the public is gonna be watching the OJ Simpson trial. And that OJ Simpson trial is gonna give justice. The the the idea of justice, the American Judicial System such a bad name.
  • Speaker 2
    0:28:03

    Mhmm. Your job when you go to Oklahoma City is to redeem the name of justice, which means that you have to do this meticulously. You have to do this completely buy the book. There can be no screw ups here because if you screw up, you’re gonna just compound this terrible problem that we’re facing, thanks to OJ Simpson. And so when you went out to Oklahoma City, his his his mission was to kind of do things like, the most painstaking sort of way.
  • Speaker 2
    0:28:33

    And so if the FBI didn’t think that they needed a subpoena, he was gonna make sure that the FBI went and got a subpoena. And there were all sorts of things that they did to just make sure that that they when he was to who who who depreciated the bottom of the plumbing when he went on trial, he had he had attorneys who were specialized in death penalty cases, government paid for all of make phase, witnesses. It was all done in a way that to try to prevent any appeal against the justice department from ever succeeding. And to just show the public that this is this is the way to do it. And so I I also think that that’s on his mind as he goes through these investigations as as they relate to Donald Trump that if he screws up, if the justice department screws up on any of these cases, it does something that’s just a little bit in transgression of norms and procedures, then the Justice Department’s reputation will get killed because of that.
  • Speaker 2
    0:29:35

    And so that I think accounts for some of the the meticulous slow pace. With which he has pursued these things. So I think this point is very interesting how meticulous he is that
  • Speaker 1
    0:29:47

    because I I I have to admit that I’m was thinking back on the Timothy McVeigh case thinking, well, okay, that’s pretty open and shut case. You know, guy drives a bomb up, you know, and blows up the building. But his investigators conducted you’re right, twenty eight thousand interviews, and you point out the the subpoenas and the warrants. He he ordered them even when they weren’t strictly necessary. So this took longer.
  • Speaker 1
    0:30:08

    And, you know, I mean, obviously, this would took a lot a lot longer time. But all that extra work got it against slip ups. So when McVeigh tried to overturn the conviction, it obviously failed he was. Executed in two thousand and one. So this is really important, I think, to to understand, you know, the way Merrick Garland’s mind works that he will make sure everything is buttoned up.
  • Speaker 1
    0:30:33

    Everything is done. And perhaps, you know, this will be frustrating to some people why aren’t you going faster? Well, he knows, at this point, particularly when you take on say Donald Trump moving back to the, you know, current day that it has to be absolutely airtight. That the worst possible scenario is to is to either get an acquittal or a home jury or or something tossed out on appeal. Among the many bad choices, that would be the worst possible outcome.
  • Speaker 1
    0:31:03

    And and obviously, this is a guy who is not gonna rush things, Is he? No.
  • Speaker 2
    0:31:09

    No. And I I just like to add one thing, which is I spent a lot of time in Ukraine. And one of the things that happens in Ukraine is there is this never ending cycle where each president tries to imprison the president who came before. And even, Vladimir Zelensky, has pursued this case against Pedipur Ashchenko, who was the president that he beat in the the election that that came before. And the country gets stuck in this never ending cycle.
  • Speaker 2
    0:31:44

    And we all have our thoughts and feelings about Donald Trump, and we kind of — Mhmm. — we see these grave injustices, and we we want there we want them to be addressed. And people argue, well, there’s a moment to strike, you know, in January twenty twenty one. There was a moment to strike here and there. But I do think that it’s it’s of paramount importance that if we’re going to do this, we need to do it right.
  • Speaker 2
    0:32:12

    That — Yeah. — it it can’t be done in a sloppy sort of way. That there’s too much at stake in the system. And and maybe the system will just be what it is in Ukraine and there’s nothing that we can do about it. That once Donald Trump isn’t dated, then Hillary Clinton’s gonna get indicted and and and Joe Biden will get indicted.
  • Speaker 2
    0:32:31

    And this is just the way that the system’s gonna roll forever and ever because we know the ways in which — Yeah. — the this modern Republican party thinks about democracy and and and and norms and traditions and institutions. And, you know, even if America Ireland doesn’t go ahead, and Donald Trump returns to power. Like, these indictments could happen regardless. But I also think that there’s there’s competing imperatives.
  • Speaker 2
    0:32:59

    There is the imperative to preserve the democratic system and to address a democratic majority, which
  • Speaker 1
    0:33:06

    means finding
  • Speaker 2
    0:33:07

    some sort of solution to Trump. And then there’s an ethical imperative, which is that even knowing the crisis of our system, that it’s imperative that the
  • Speaker 1
    0:33:21

    wheels of
  • Speaker 2
    0:33:21

    justice still continue to churn in a way that privileges fairness and civil liberties above all else. And so when I look at these cases, I think to myself, well, there’s maybe a right reason and a wrong reason to deny Donald Trump, and it’s important that it be done for the right reason. So — Yeah. — the wrong reason to and Donald Trump would be that he’s a he’s a threat who could return to power in the next election. The right reason to indict him is that he’s committed crimes that are blatant.
  • Speaker 2
    0:33:55

    And if that they’re not addressed, then he’s gonna keep on heating them, and it sets this terrible example for the way in which the judicial system operates. And so you know, I I would think that I think that that Merrick Garland really does think about his ethical obligations, his legal obligations, more than he thinks about the threat that Donald Trump poses to democracy. Then I wanna go back
  • Speaker 1
    0:34:21

    to something that I found really interesting in your piece, which is the the transformation of Merrick or Linda. Okay. So, you know, he he’s meticulous, he’s by the book, but he obviously also is prepared to change and to adapt. And I I think it’s interesting that that you write that when he took office last year wait, last year, by the way. It feels like a million years ago.
  • Speaker 1
    0:34:41

    He he actually thought for a moment apparently that he could lower the temperature in the nation and use the justice department to restore a measure of civility that seemed to slip away during the Trump years. And he you know, we’re seeing these stories about harassment and rudeness, you know, things that were happening at school board meetings, you know, flight attendants being assaulted, you know, police officers harangued officials getting death threats, and he wanted to make an example. But you’re right. But to his dismay, those efforts proved ineffective no matter how many cases he brought the DOJ could not stanched the flow of Invicta. There was something profoundly wrong with the national culture.
  • Speaker 1
    0:35:14

    You, right? And it was undermining the possibilities for collective coexistence and healthy Democratic practice. So this is a older, wiser, more realistic Merrick Garland.
  • Speaker 2
    0:35:27

    I think so. I mean, that that exchange happened. I read his commencement speech that he gave at Harvard in the spring, and there was a line there about what the justice department couldn’t do. And I was interested in that because so much of the aggressive speech was about a sort of description of what the justice department could do. And so he started to talk to me about how he there were these cases that he tried to bring in order to stop harassment.
  • Speaker 2
    0:35:56

    And he thought, well, if I if I can get some some if there’s some swift justice and there’s some clear examples of people being punished in very substantial ways. It might have some deterrent effect on harassment. And and and yet, like everybody know is that there’s a chance that they could get arrested for bullying public behavior as it relates to judges or or flight attendants or school officials And there is no deterrent that’s happened. People’s rage is kind of beyond deterrence. And so I think that this is this reflects just generally what I described before to you as the more hardened, more pessimistic Merrick Garland, who’s emerged from his time on the job.
  • Speaker 1
    0:36:46

    So during your interview with him, he took issue with your description of him as an institutionalist. He he says that he he told you that he never used that word to describe himself, which also found surprising because I I think that was the image that he’s kind of the ultimate institutionalist. So why does he push back against that? It was just too funny. It was a yeah.
  • Speaker 1
    0:37:05

    So
  • Speaker 2
    0:37:05

    I asked him about that, and he said, like, I haven’t used that word, and they turned to his a’s, and he said, oh, he was basically, like, have I used that word? Like, you they can look it up for you, but I’m pretty sure I haven’t used that word to describe myself. And I think what he was trying to tell me was that institutions alone are not enough to save democracy — Mhmm. — that democracy institutions exist within a fabric of democracy. But it was it’s It’s institutions.
  • Speaker 2
    0:37:36

    It’s the culture of the democracy. That’s also crucial for for its its survival. And then he, you know, I think that he he believes he didn’t quite tell me this, but my sense was that if it determined authoritarian tried to take over institutions, that the norms of those institutions wouldn’t be enough to stop that authoritarian. This is good. He realizes that.
  • Speaker 2
    0:38:04

    Yeah. I think so. And so I think he was just trying to flash to me that he wasn’t naive. About the ability of institutions to protect democracy. As important as institutions are, institutions alone can’t save us.
  • Speaker 2
    0:38:20

    So,
  • Speaker 1
    0:38:20

    as you’re right, his faith in institutions had begun to wobble. Perhaps he was letting you know. And so with this optimism bruised and shattered, You’re right. He’s showing more of an appetite for confrontation, which brings us back to Mar a Lago because that was that was gutsy. For Merrick Garland to pull the trigger on that?
  • Speaker 1
    0:38:38

    It is. It
  • Speaker 2
    0:38:39

    was a fascinating moment because, like, you could say that we’ve had a norm against using the FBI to and just started to raid the homes of former president. He was doing something that was unprecedented, that he knew would be exploited for demographic purposes by Trump, and he went ahead and he did it anyway. And then went out and defended it in highly personal way, which is I think pretty unusual for him to say, look, I ordered this and and then he unsealed a whole series of documents in order to essentially call out the way in which Donald Trump had been lying about the raid. So to me, that was emblematic of the New America, England. Okay.
  • Speaker 2
    0:39:26

    So
  • Speaker 1
    0:39:27

    he he also reminds you that he’s prosecutor. He wants to win. He knows how to win. Right? And so let’s talk about a a timetable.
  • Speaker 1
    0:39:37

    You write about the the data on the calendar. I mean, a judge, any judge would give Donald Trump at least a year to prepare for a trial. Right? That would be normal. I mean, it would be longer if it was for January sixth, maybe.
  • Speaker 1
    0:39:49

    The trial itself could go for as long as six months So what does that mean for the timetable? So, Merrick Garland, realistically, this clock is running on him based on your timeline there. It
  • Speaker 2
    0:40:03

    is. And so this was a question that I hadn’t really thought of until I started to ask. I started to call former prosecutors and asked them, what would the trial of Donald Trump look like? And they started to mention, and we so I just would ask them very mechanical questions about what was his male proceeding, who would look like. So in the course of these conversations, the timeline questions started to emerge.
  • Speaker 2
    0:40:30

    And what I gathered is just when you factor in all of the things that you’ve just described, it would mean that in order for a jury to issue a verdict in the trial of the United States versus Donald Trump before the turn of administrations, an indictment would likely happen have to happen by late spring of next year. Maybe a little bit earlier if it was a complicated case around January six. Yeah. That
  • Speaker 1
    0:40:58

    that actually does seem like the most realistic timeline spring of two thousand thirteen, late spring really at the latest. Okay. So let’s get to the
  • Speaker 2
    0:41:08

    decision point. You
  • Speaker 1
    0:41:09

    you’ve made the point that he can’t win politically. Obviously, he’s gonna upset both the right and the left. He’s going to become deeply unpopular. He absolutely knows this. I mean, there’s going to be significant blowback damage to the Department of Justice.
  • Speaker 1
    0:41:21

    But you argue he doesn’t really have a choice. He can’t help but tear America apart. And he he’s very frustrated when people keep asking him, what does he mean by? No one is above the law. So tell me exactly how this ends.
  • Speaker 1
    0:41:39

    What will the moment be like for Eric Garland when he says go, no go? So
  • Speaker 2
    0:41:45

    so it’s interesting part of his devotion to rules and norms and the Department of Justice is that there’s almost I don’t know a better way to describe it, like an algorithm for how a case proceeds. The rule book means that there’s a step by step process for what you do. And it’s a very decentralized process where at least at the very early stages of an investigation, you have the prosecutors who are overseeing the case making the most important decisions. But as the case moves along the line. There there are moments where it gets brought to the attorney general for for decisions.
  • Speaker 2
    0:42:22

    And there’s a principle that’s called prosecutorial discretion. And so in any given case, the the primary prosecutor can say, you know what? It looks like there was a violation of the law here, but we don’t have a strong enough case to go forward. And so they pull the plug or there could be a whole variety of reasons why a prosecutor deploys their discretion not to bring a case. And so we’re gonna get to this moment where
  • Speaker 1
    0:42:49

    It will
  • Speaker 2
    0:42:50

    but Garland will be the prosecutor and it will be his discretion as to whether a case is brought against Donald Trump. And I think that at least with the Mar a Lago case, by the
  • Speaker 1
    0:43:02

    time that that
  • Speaker 2
    0:43:04

    moment comes, I think Garland’s minds gonna be pretty well close to made up because he’s been deep in the weeds of his case for a very long time. I think that he is emotionally, it’ll be emotionally invested in defending the Department of Justice in the way in which it’s been tossed around by Trump and lied to by Trump. And,
  • Speaker 1
    0:43:28

    you know, there is
  • Speaker 2
    0:43:29

    this moment in every press conference that Merrick Garland gives where Reporters lined up, and they they ask him, you know, what do you do? Can you do about Trump? What do you do about Trump? What do you do? Too bad Trump?
  • Speaker 2
    0:43:39

    And his answer is nobody is above the law. Nobody is above the law. Nobody is above the law. And I think for him, it’s a very it’s it’s his most elemental proposition. It’s it’s it’s the kind of the bedrock principle in his calculus and either he’s been faking his his strident when he says nobody is above the law or it’s a heartfelt belief.
  • Speaker 2
    0:44:03

    And I think at the end of his moment
  • Speaker 1
    0:44:06

    approximates
  • Speaker 2
    0:44:06

    it. This No. Yeah. This moment of prosecutor’s question is the moment where where he’s gonna have to show that he means it. Okay.
  • Speaker 2
    0:44:13

    So
  • Speaker 1
    0:44:13

    we we we’ve we’ve gone on a little bit too long here, but I have to ask you this question since you obviously have been studying him so closely. Merrick Garland is the justice that wasn’t. Yes. How does he feel about that? That he was nominated I mean, most of us can’t even imagine going through the of having the president of the United States call you up nominating you for the supreme court, you know, announcing that you are the nominee for the supreme court, and then nothing happens.
  • Speaker 1
    0:44:40

    How’s how does how does he process? How does this fit into you know, his his look, just give give me your sense of this. What’s it? Yeah. What is it like being Merrick
  • Speaker 2
    0:44:51

    Garland who
  • Speaker 1
    0:44:51

    is not just as Merrick Garland?
  • Speaker 2
    0:44:53

    Right. And he didn’t just get nominated for it. He wanted it and he wanted it real bad. He was two times before that Obama had considered had put him on a short interviewed him for the job. So that when it went to Kagan, when it went to sit in my ore, he was in the running for both of those appointments, and it just didn’t happen for him.
  • Speaker 2
    0:45:14

    And then he assumed that he’d aged out of the job because I think he was about sixty years old, which just by the standards of the modern supreme court justice is too old. Correct. And so at the in twenty sixteen, Scalia dies, Obama nominates him, and it’s just a very surprising thing to Merrick Garland. Comes this wonderful occurrence. I think part of the reason that Obama nominated him is that he he was maybe one of the few democrats who actually had a chance of winning — Yeah.
  • Speaker 2
    0:45:42

    — bipartisan support at that moment. Because he had such good relationships with the likes of Roberts and Kavanaugh and all these other kind of pillars of the federalist society. And then McConnell, basically says you’re not gonna even get a hearing. And for somebody who believes in the system like Merrick Garland, you think this would be an utterly crushing moment. Of course, it’s not personal, but still it’s just get your dream job dripped away for you in this sort of way.
  • Speaker 2
    0:46:15

    And so when I started to ask friends and from where courts and the like about how he reacted, I was really surprised to hear that Garland was the one who was basically consoling everybody else who was who was upset on his behalf that he never expressed rage. He never vented his anger about what had happened to him. And I found that to be just a fascinating window into his psychology, and maybe even a window into how he approaches the questions about Donald Trump. And on the one hand, you could say, well, he’s just a really repressed guy who doesn’t express emotions. And there may be some some truth to that, although he’s kind of a crier.
  • Speaker 2
    0:46:57

    In other circumstances. He he’s very misty eyed. He’s very sentimental. When he talks about America and his family’s debt to America, Like, he can’t help but get emotional. Or when he talks about his own family and his debt to his family, he gets very emotional.
  • Speaker 2
    0:47:11

    But when it came to himself and and kind of this injustice to his career, he was able to set aside his personal feelings and to not not feel vengeful, not feel rageful about it. And there was a term that came to my mind as I was studying that, came from the great theologian, Reinhold Neiber, who talked about the spiritual discipline against resentment. And this idea that if we’re ever going to get these sides, these warring political tribes to stop crushing each other, to escape this cycle, there has to be a moment where you almost turn the other cheek and you you’re able to offer up forgiveness to the other side. And I don’t think that this is quite what America Ireland feels, but it’s kind of to me, it was the closest I could get to capturing this part of him. And so as he processes this decision about Donald Trump, where everybody feels such strong emotion about Donald Trump and what he’s done and what should happen to him, I think he distrust those those very strong political emotions, that impulse, to punish the other side.
  • Speaker 2
    0:48:23

    And so I think that speaks to probably the fair mindedness with which he has approached a lot of these cases and his maybe reluctance to go the full distance when, like, the rest of like, a lot of America really feels that he needs to move move quickly. And, obviously, it is
  • Speaker 1
    0:48:43

    a gross understatement to say that the fate of his supreme court nomination has had tremendous consequences both politically and in the future of the court. But I think that’s that’s a subject for another discussion, Frank. Franklin, for a staff writer for the Atlantic. Previously, the editor at the New Republic Staff writer at Slate in New York magazines, his books include world without mind the existential threat of big tech. And of course, we’ve been talking about his fascinating piece in the Atlantic, the inevitable indictment of Donald Trump Frank, thank you so much for coming on the podcast today.
  • Speaker 1
    0:49:16

    Thank
  • Speaker 2
    0:49:16

    you.
  • Speaker 1
    0:49:16

    The Bulwark podcast is produced by Katie Cooper with audio production by Jonathan Seres. I’m Charlie Sykes. Thank you for listening to today’s Bulwark podcast. We’ll be back tomorrow. We’ll do this all over again.
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    0:49:33

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