Look Who’s Claiming to Care about Norms Now

Welcome to beg to Beg to Differ. The Bulwark weekly roundtable discussion featuring civil conversation across the political spectrum. We range from center left to center right. I’m Mona Charen indicated columnist and policy editor at the Bulwark, and I’m joined by our regulars. Will Saletan of the bookings institution in Wall Street Journal, Damon Lincoln, who writes the sub stack newsletter, notes from the middle ground in Linda Chavez, of the Nescannon Center.

Our special guest this week is Adam White. Adam is a senior fellow at the American Enterprise Institute and a professor at the Anton and Scalia School of Law. Thank you one and all. Adam, it is great to have you. I’m going to rely on you for some legal analysis because we are really in a lot of uncharted legal territory.

The former president this week was arraigned. He plead not guilty in the Georgia case, the January sixth case was scheduled. It’s going to start March fourth in Washington, DC. So There’s a lot going on, many, many, many moving parts. So I’m going to ask you to start by giving us a sense of that Georgia big monster case because there’s a lot of commentary that Fanny Willis, the DA, kind of bit off quite a lot here.

Nineteen defendants, and she’s saying that she wants them all tried together But some of them are already availing themselves of the speedy trial request. Others don’t want a speedy trial specifically trump. So is this case is it unwieldy and does that mean it’s going to be delayed beyond twenty twenty four.

Thanks, Mona. It’s really great to be back, and and I will give the best advice I can here. And I I will say these days reading through these legal arguments and all the context, sometimes I feel like I’m taking the bar exam on acid. These things are so sort of beyond the pale of anything one would normally think of. In terms of the Georgia case, I do think it’s it’s unwieldy.

It’s not to say she’s wrong to bring it this way. Maybe she thinks that This is the least unwieldy way to bring this case, although I suspect that’s not true. But, no, with nineteen defendants, and as you said already, a a barrage of procedural motions both in terms of the pace of the case and where the case should even be heard whether it’s really a federal case or not. I think she’s created an environment which It’ll be impossible for this case to proceed in a swift and orderly fashion. You’re gonna have so many cross cutting motions.

And if you think about a courtroom with nineteen defendants and the legal teams and everything, practically speaking, it’s impossible to see this case really proceeding in an orderly way, at least in a way that would resolve itself in months rather than a year or more. I’m sure she’s thought Jonathan Last I hope she saw that. But I think that’s the practical reality of this case.

Yeah. So regarding the, January sixth case, That’s the one where Judge Chutkin is presiding in DC. And she, along with all the other judges in the various cases that Trump is facing. Of course, he’s facing four criminal trials and then a whole slew of civil actions as well. But he has been given some strict orders by judges not to engage in any further crimes, for example, as a condition of bail, not to engage in witness intimidation or threats or disruptive public statements.

And it’s a question, this is part of the uncharted territory that we’re in. It’s a question as to whether he can even restrain himself arguably already has violated some of those strictures, like by saying if you come after me, I’m coming after you, So my question for you is, what power does a federal judge have to enforce the rules Other than contempt, like putting the defendant in jail?

Well, contempt is the main tool, and and I don’t know that the only punishment for contempt is putting the person in confinement. That might be true. I don’t think that’s true, but, of course, that’s what we tend to think of for contempt. The judge could put down more rules in terms of limiting former president Trump’s right to speak regarding the case could put those limits on him, and then those in turn would be enforced by contempt. At the end of the day, The real hammer is a contempt finding.

Judge Chutkin, who I think so far has done a very good job in handling this case, procedurally, and the setting of the timeline. I think she’s done a very job, actually. Mhmm. At the end of the day, she can’t keep president Trump in check by limiting his his procedural rights in the case, his substantive rights, she can’t limit his arguments as, say, or leverage for keeping him in line. At the end of the day, all the judge can do is put down some neutral procedural rules.

She can ratchet them up based on the defendants actual conduct going forward, but in the end contempt is her only real tool, Mona, you mentioned Judge shutkin’s statements about limiting president Trump. Could I digress on that for just a moment? Sure. You know, she said a couple of hearings ago, it was a widely quoted statement. I thought it was very powerful.

I I jotted it down. She warned a few weeks ago that president Trump is quote a criminal defendant He’s gonna have restrictions like every single other defendant. This case is proceeding in the normal order. The fact that the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in a criminal case. That was exactly the right note.

She absolutely nailed it. I’m glad she said that. And, of course, that statement got broad attention. But I think one thing to keep in mind is that all of us who are president Trump’s critics and opponents We read that with an eye to president Trump and what he can and can’t do. But the more I’ve sort of pondered that statement and thought about it, the more I’ve realized it’s actually a statement that applies to all of us.

The president Trump, he gets no greater leeway because he’s a presidential candidate, but he gets no lesser leeway either. And that statement that she uttered It is or it ought to be a reminder that president Trump is gonna have a lot of benefits in this case just like every criminal defendant does. And I think the longer this case goes on and the more the president Trump is able to rely on the procedures and the burdens of proof and all the other parts of our criminal justice system that are structurally built to favor the defendant and for good reasons. The more the Trump is able to rely on those, I think the more that Judge Chutkin’s warning is going to frustrate those of us who, like me, who very much want to see president Trump held accountable for his misdeeds.

So that’s interesting. You’re saying there are many, many, rules and laws that protect the rights of the accused. That’s not a widespread view. There are a lot of people on the left who think that the justice system is very racially unjust and skewed against Bulwark defendants. There are a lot of people on the right who believe that it is being politicized now to go after Trump and trump’s people.

So tell me what kinds of protections you’re talking about.

Well, I’m thinking of a few, and I I didn’t mean to derail your original question. So I’ll I’ll be really brief and just say, First of all, obviously, there’s the burden of proof. President Trump and the other defendants, ultimately, they can only be convicted for proof beyond a reasonable doubt. Including not just obvious objective facts of actions that happen in the real world, but it’s often said men’s rea wants understanding of what they were doing, and we shouldn’t overstate that, but that’s gonna be part of this case too that’s gonna have to be proven beyond a reasonable doubt to a unanimous jury. So there’s the jury system that’s gonna come into play in president Trump’s favor with the requirement of unanimity.

And then finally, a lot of these cases, especially the January sixth case pending in federal court in DC, It turns on some very broadly written statutes. The kind of statutes that the Supreme Court has been inclined to interpret increasingly narrowly, and not just in big regulatory cases, but in cases over the last twenty years, including over criminal fraud and so on, we’ve seen the unanimous Supreme Court, including progressive justices, like Justice Ruth Bader Ginsburg, being wary of really open ended criminal statutes. And so all of those things, the way the judges look at the statutes, the way the burdens of proof apply, the way the rules of evidence apply, and the jury requirements, All of those are structured in favor, increasingly in favor of criminal defendants. And president Trump is gonna seek refuge in that just like any other criminal defendant. And so that’s why judge Chutkin’s warning about Trump getting no greater or lesser latitude than any other defendant sort of rings in my ear.

The more I think of how this case is gonna play out.

Yeah. Okay. Let’s probe this men’s ray a thing because this has gotten a lot of attention in the weeks since the Jack Smith indictment. Lots of people are saying, well, you know, if Trump had a sincere belief, that he had not lost the election, then this whole case will founder, and it’s very difficult to prove Mens rea. But I find this a little bit doubtful.

Tell me if I’m wrong, but look, most criminal trials involve some kind of Mensreya. And you have to show the defendant knew what they were doing. And you do that by presenting evidence to a jury. And it’s a jury question, you know, getting into their mind. You do it you know, in the same way you would prove many other factors.

Right? You show that Trump was told by a variety of in the know, people who were in a position to know what they were talking about, that he had lost, and you bring them on and provide evidence, and then you show that you know, completely flatly denied what he was hearing and leave it up to the jury to decide whether that was a sincere belief or whether he just couldn’t possibly pedocence, your belief after all that. Right? Isn’t that how it would go? What am I missing?

No. I think you nailed it there, Mona. I think that’s exactly right. That at the end of the day, true that the prosecutors do have to prove beyond a reasonable doubt that Trump did the things he’s alleged of and with the unlawful intent. And understanding of what he was doing.

That’s all true. Trump can’t hide behind some sort of modified version of the insanity defense where he he just claims that well, I didn’t believe that I lost an election. I sincerely didn’t believe that. When everybody is telling him his own advisers, the normal course of election reserve and all of that, all the trial, all the court cases, challenging aspects, the elections, all of it came out against Trump. Trump can’t just sort of sit back with his hands folded.

And insist while I didn’t believe it. Ultimately, that’s up to the jury to make reasonable determinations based on the evidence that’s presented. So it’s true that the men’s Ray component is important, but it’s not at all as strong as I think a lot of Trump’s defenders make it out to be. At the end of the day, the jury is gonna decide whether his understanding of the situation was sincere and reasonable. And I think it’s strange.

It takes a willing suspension of disbelief to believe that Trump either, genuinely believed in something so stupid, or, well, I guess that’s basically what he’s arguing, and it it’s I I don’t think a jury’s gonna believe it.

Right. So if you were to rate the criminal cases, in terms of likelihood of conviction. How would you rank them?

The federal case in Florida over the documents. That’s the highest likelihood. Of conviction. Mhmm. After that, I’m not sure.

The New York case, I’ve always had a very low, opinion of although I have to admit, I haven’t thought about it in a little while since the other landslide of cases has been filed. Right. The two cases in the middle, the Georgia election case and the federal case in DC over insurrection. I put them sort of together in the middle. The Georgia case is difficult logistically.

Also, I I do think that the application of criminal Rico racketeering statutes to the election related conduct. I’m still not convinced. And I’m not an expert on this. I might be totally wrong, but I’ve always thought of Rico in terms of the traditional financial and property based corruption activities. Like, the kind of thing the statute, frankly, was written around normal racketeering.

I’m still grappling with wrapping That statutory framework around president Trump’s misdeeds, which obviously were wrong and corrupt in the ordinary sense of the term, but I’m not sure that they actually map well onto the the state Rico statutes. But I the state Rico lawyers are no better than I would. The January sixth case in DC, I mean, on one level, it’s very, very compelling. We all saw what happened that day. We all know what Trump was trying to accomplish that day, and we all know that what Trump did in the run up to that day was intended to bring us to a crisis point.

Of impeding the election. We all understand that. But at the end of the day, this case requires a really aggressive application of the federal statutes. And like I said, Jack Smith, as a prosecutor in other cases, has run into trouble trying to apply the the fraud statutes broadly And I think it was the McDonald case, the the Virginia case. Governor McDonald did some very, very bad and in the ordinary sense of things corrupt things as governor of Virginia, but the Supreme Court recognized that the statutes being invoked there, the fraud statutes they have to have some parameters on them, and Smith’s case there sort of stretch the lines.

I think both of those cases are uphill climbs. But the Florida case, I think, is I mean, I would never say open and shut, but it’s a very, very compelling case. And I was prepared to not like that case. I’m very wary of litigation around these political processes. I was instinctually before the case came in.

My my inclination was to not like whatever was filed, and I found myself convinced immediately to the contrary once I read the complaint.

That was a heck of an indictment, wasn’t it? I mean, it was really powerful. By the way, Fony Willis, she says I like Rico. Right? And she used it against the teachers.

In Atlanta who were cheating and was successful in that case.

True. True. True.

Alright. Well, Linda, did you wanna say something about that also?

Yeah, I did because I think a lot of people are not very familiar with the Atlanta Federation of Teachers story. It involved about a hundred teachers who were engaged in inflating their student scores on standardized testing which they did because the contract there gave the teachers raises and gave them bonuses depending on how their students did Mona Charen. And finally Willis brought this case. It took years. To actually come to a culmination trial.

At the end, there were I think there was something like twelve or eighteen people indicted the case actually ended up going to trial with twelve. There were convictions, I believe. In ten of those cases, and some hefty jail sentences meted out. So and obviously, as as Adam had suggested, this was not a racketeering case the way we normally think of, you know, the mob bosses, etcetera. But in this case, the head of the teacher’s union was actually deemed the organizer of a criminal conspiracy to defraud essentially the people of Georgia, and because they’re paid, our teachers are obviously public employees by inflating these scores.

So It did take a long time. There were lots and lots of defendants. Some of them pleaded guilty, but she ultimately got ten convictions and there were, they believe, a couple of appeals, which were upheld by the circuit court. So I’m not gonna count Fony Willis out on using Rico in a creative way.

Well, and Adam, I would just add to that that, you know, if judges are textualists, They’re gonna look at the wording of the Georgia Rico statute, which is very broad, and they’re gonna say, well, you know, Certainly, does make tempting to influence a public official to do something corrupt a crime. So there you go.

Well, yeah, fair point.

Alright, does anybody else want to talk with Adam about the legal ins and outs before we turn to the more philosophical side of things.

Yes. I do.

Okay. Go for it, Bill Galston.

Okay. When I opened up my copy of the New York Times. I found an op ed by Bert newborn, who is an emeritus professor of law at NYU. And he referred to a Supreme Court doctrine established good law of willful blindness. And let me just quote from the piece.

A dozen years ago in the case of global tech appliances versus SCB, justice Samuel Lito, writing for all but one justice, ruled that proof of willful blindness is the legal equivalent of proving guilty knowledge. As Alito explained it, quote, Many criminal statutes require proof that a defendant acted knowingly or Will Saletan, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances. So I guess my question to Adam is doesn’t this Supreme Court decision bear on the question of men’s rea? If the real burden of the prosecutor is to show that the then president was or should have been in full possession of the critical facts that would have deterred him from saying in doing what he did.

Well, thanks, Bill. It certainly seems to bear on it. Now I haven’t seen the op ed, and I’d have to look at the case. I don’t know whether willful blindness was a standard set by state law in a particular state or not, but it goes exactly at the point I was making earlier that in terms of men’s rea and whether president Trump knew that what he was doing was factually wrong and illegal. He can’t simply fold his arms and say, well, I didn’t believe that I lost the election.

Right when everything points to the contrary, his advisors, the ordinary operations of our election processes all the judges who ruled on the various cases challenging various aspects of it. At some point, a jury is able to determine that president Trump either was unreasonable in knowing in persisting in in his ignorance, or more likely president Trump is just lying that he actually did know and had good reason to know that what he was doing was simply unlawful and wrong.

Yeah. Can I just editorialize on a little bit too? I mean, you know, this also comes up in the question of whether he can say, well, I was taking the advice of counsel. So you’ve got the White House Council telling him that this is ridiculous. It’s rubbish.

You have the attorney general telling him it’s rubbish. You have the head of cyber security telling him it’s rubbish. You have more than sixty court cases telling him it’s rubbish, and the, deputy attorney general, etcetera, etcetera, etcetera. And so then he goes and asks Rudy Giuliani and Sydney Powell for their opinion. And, you know, at that point, you can say I was taking advice of counsel in certain environments where, you know, your lawyer advises you to plead, you know, and it’s bad advice.

But in a situation like this where you went shopping for just anybody. Anybody who had a law degree to tell you what you wanted to hear, it’s a lot less plausible, I think. But that’s my editorial view. What do you think, Adam?

That sounds about right to me, Mona. The these cases are so staggering both in terms of the the conducted issue, president Trump’s his own pathologies and his own mindset and his willingness to say whatever it takes to get out of the next just survive the next five seconds, combined with the the sheer scope of the misdeeds that we saw it all culminate with, that I’m always hesitant to try to map any previous case onto those events or this particular defendant But at the end of the day, the criminal justice system for all of its protections of the criminal defendants, it is ultimately a system that operates reasonably, and I expect it to do so here.

Okay. Great. Well, that is a perfect segue into our next topic because The whole question about how courts operate is implicated here. There are a lot of people who are saying this is a political matter and the courts should not be involved at all, and that to do so is in the words of the Trump supporters, for example, and even some people who wouldn’t call themselves Trump supporters, but who, you know, say that they are worried about the implications of the road that we have taken here that it’s politicizing the administration of justice. Let’s hear Senator Lindsey Graham who sort of crystalized this view.

This should be decided at the ballot box not a bunch of liberal jurisdictions trying to put the man in jail. They’re weaponizing the law in this country. They’re trying to take Donald Trump down, and this is setting a bad president And what I fear is that you’re changing the way the game is played in America, and there’s no going back. We’re in for a very hard time if this becomes the norm.

Okay. So, Damon, I’m gonna come to you on this. I mean, you hear this a lot from the Trump people, but, you know, you yourself have been predicting that, a prosecution of Trump would lead to this reaction, but I’m becoming less and less tolerant of this view because it demands that there be no points. I mean, people who say it should be decided at the ballot box forget that Trump’s fate was decided at the ballot box in twenty twenty and They didn’t accept the verdict of the voters. Is there any reason to think they would accept the verdict of the voters in twenty twenty four?

Probably not. Although I think it’s somewhat fluid and depends on what the outcome of the vote ended up being. I think A narrow results would end up being less convincing to them, and they would probably fight it pretty badly. I don’t think it would be as dangerous as twenty twenty was because back then, Trump actually had all the powers of the presidency on his side whereas this time he be kind of on the outside, you know, throwing rocks at at the castle walls. So I don’t think it would necessarily be as dangerous.

A wider victory for the Democrats or a bigger loss for Trump would, I think, be a little bit more difficult for him to explain away. Now, of course, you also have to keep in mind that the way the general election results are interacting with the electoral college and recent cycles make this a a complicated question. I mean, by one metric, Biden won a very decisive victory in twenty twenty, by seven million votes at the national level. But, at the same time, if forty three thousand votes in Arizona, Wisconsin. And Georgia had gone the other way, then we would have had a two sixty nine to two sixty nine electoral college tie.

And it was precisely that narrowness of Trump’s loss in certain key states that fueled his rather insane efforts to find extra votes. A few here, a few there so that he could change the the outcome. So I do think that that matters. But in the broader sense, I mean, my own position is a little complicated in a way. My hesitation and worry about going after or Trump legally was because I was afraid Republicans would talk the way Lindsey Graham is now talking.

So he’s sort of verifying my concern by him asserting that. But let’s really be honest here. I mean, has anyone made the argument that Trump shouldn’t try to overturn the twenty twenty election because then the next thing you know Democrats will do that the next time. I mean, no. Nobody said that because nobody thinks that the Democrats are now going to try to overturn elections because Trump showed it’s okay to do it.

I mean, that’s a bizarre thing to claim. The fact is this ratchet happens primarily in one direction that Republicans are often trying to use anything they can find as a an alleged double standard to then give themselves an excuse to do the stuff they wanted to do anyway. So they can then always turn and say, oh, we’re only doing what the Democrats either already did or what they would do if only they had the power to do it.

Oh, yeah. By the way, they said that when it came to filling Supreme Court seats. Remember?

Well, of course. Of course. Yeah. Absolutely. Yeah.

Yeah. There is a lot of bad faith as we all know out there on the right these days where this is happening in Lindsey Graham, is is, of course, as our Bulwark, Will Saletan, has argued so persuasively in his ebook on Graham and his role in the corruption of Republicans under Trump. That’s sort of where we are today, and I don’t see any way out of it. Frankly, I mean, like the documents case. He was begging for it.

What are we supposed to do? I mean, I understand the arguments and and I agree with a lot of what Adam said about. The kind of difficulty of the two January sixth cases, the Georgia one and the Jacksmith one in Washington and that, you know, do the statute supply? Are we stretching things? I don’t think the outcome in either is assured.

But in the documents case, I mean, it’s just simply a straightforward example where they were bending over backwards to let him slide, basically, please just give these things back and everything will be fine. And he just outright refused. And at a certain point, you’re forcing the hand of federal law enforcement. Are you going to enforce the law against this man ever, or are you just going to let it all slide because of who he is? And I I sort of throw up my hands at that point and say, I don’t know what else we were supposed to do.

Yeah. By the way, for the Lindsey Grahams of this world and the others, you know, you’ve got, representative Andrew Clyde, who’s trying to defund Jack Smith and Bonnie Willis and Alvin Bragg and so on, and you have Jim Jordan, they’re launching investigations, you know, all of this. But they should bear in mind when they keep saying that it’s entirely politically motivated, you know, Mike Pence was not charged for mishandling classified documents because as soon as he realized he had them, he returned them. And similarly, Trump was only charged for the documents that he failed to turn over after the subpoena was issued. Okay, Linda.

In line with Damon’s point about, you know, what else are you supposed to do? Look, there comes a point where when you have such a scoff law, somebody who is dragging the respect for the rule of law under namely Trump. If you fail to hold him accountable, then you’ve already reached the point where the rule of law is compromised So Mitch McConnell, by the way, had a re another health thing this week, which is very worrying, and we’re not sure where that’s going, but he seemed to freeze again in front of cameras, not good at all. Not good for Ukraine, by the way. But after he acquitted, Trump in the second impeachment, which was unforgivable, because he should have held him accountable through the political process, but he failed do it, but then he gave this impassioned speech saying we have a criminal justice system in this country, and so he hasn’t gotten away with anything yet.

Well, that’s exactly right. And, you know, one of you and I remember when the Republican Party believed the rule of law, And procedures and holding to the rules was something that Republicans very much believed in. There was none of this sort of well. Everything situational. It depends values neutral.

And now what we’ve seen is the tables have been reversed. And the right is very much in the position that the very far left was once in in my youth at least in the sixties and seventies when there was absolutely, no regard for the rule of law. And I’m remembering the wonderful play by Robert Bolt, a man for all seasons in which one of the characters William Roper says to Thomas Moore, who is the main character in that play. So now you give the devil the benefit of the law and more was very clear in responding that once you take all the laws down, which you cut a great road through the law to get after the devil, Then when the laws are all as he said flat, and then you have need of the law, what are you going to do?

And the devil rounds are with you.

Then what are you going to do? And so, you know, this is very disheartening to me. Look, there was a reasonable way for Donald Trump and his followers to protest the outcome of the election. And in fact, they filed sixty three, I think it was, lawsuits, in various states, Unfortunately, those lawsuits didn’t have a whole lot of meat or evidence in them and so they lost. All but one which was on a very narrow grounds of making sure that observers of election counting could be a little bit closer to where the action was taking place.

That’s the way it’s supposed to be done. That was what happened in two thousand when there was a contested election with the state of Florida’s votes being up in the air between Al Gore and George w Bush. It went to court. It went all the way to the Supreme Court. And Al Gore, who was not my favorite politician, he did what was right as vice president when it came time to count the votes after the Supreme Court decision and essentially declare that The win was for George w Bush, and he he had a really, I think it was the best speech he ever gave.

He had a really good concession speech. That’s the way it’s supposed to be done. It isn’t that there aren’t going to be times when people feel gee, the Ump made a wrong decision. And I’m gonna contest that. Or I wanna, you know, look at a replay and see whether that basket really was before the buzzer or not.

I mean, there are ways to protest when you think you have been rocked. But the rule of law in this country depends on everybody agreeing that once you’ve done that, once you’ve gone through your legal recourse, then you accept the results.

Yeah, Adam. It is Absolutely unprecedented and crazy that the person who is has been multiply indicted is the most likely nominee for a major political party. And so we are in again, as I said at the beginning, we’re very uncharted waters. At the same time, I have a sense, and I wonder if you do that there’s no way past this, but through it, to back down and to say well because he’s candidate. One of the reasons that he announced so early is that he thought it would provide him a kind of shield from accountability, legal accountability if Bulwark a candidate.

It’s not ideal. Obviously, it is a terrible situation, but the only alternative is to let him get away with flouting the law. Right?

I I basically agree with that. Not entirely.

Okay. Tell me the not entirely part.

For a long time, I’ve worried about the use of the criminal justice system in the context of our politics. One of the reasons why I was so dead set against Trump when he first began campaigning for president years ago was because of the the locker up mentality. Yep. The locker up chance, the attacks also on judge Curiel. Over and over again, I’ve worried about the political context around our justice system and the eagerness of all of us, at myself included at times, to wish that we could just make our political opponents go away.

Through application of the criminal justice system. And so everything I’ve said so far on the podcast I stand by, I think president Trump engaged in horrible misdeeds Many of which are criminal and and many more of which might be criminal, and we have a system to sort that out, but I do pause when we see the criminal justice system intersect with our political process, particularly in moments where there’s a lot of wind in the sails. Of the prosecution. There are a lot of people who will be very happy to see president Trump put in jail taken off the ballot. And that surely they all believe in good faith that what he’s done merits criminal punishment, but it does happen to coincide.

With what they would have liked to see happen on on moral grounds anyway. And I think at that moment, it’s incumbent upon all of us to pause Ron DeSantis this really worse than the alternative? The documents case again in Florida, the federal case, I think, is such a straightforward case that that should be prosecuted. The cases in Georgia and the federal case in DC, they do encompass a lot of political activity and speech around the elections. And a lot of it crossed the line, and I think a lot of it was criminal.

But if the criminal justice system actually begins to prosecute and punish people for this. We’re going to see the judges who hear these cases and, eventually, the Supreme Court. Have to think very hard and draw very careful lines about what is and is not beyond the line on this. Those are gonna be incredibly hard lines for the judges to draw. They’re gonna be an incredibly hard political context around the work of the courts there.

We’re gonna push the court to the edge, I think, of the political breaking point. And no matter which way the cases turn out, we’re gonna see a tidal wave of claims of illegitimacy. Whether say president Trump is convicted or whether, one of twelve jurors holds out and and refuses to convict president Trump, say, in the in the federal case. This is gonna push the the system to the breaking point, and it’s not clear to me that for those cases, this is the best of all outcomes.

Yeah. Bill Galston, one of the things that people who are, you know, eager to see Trump prosecuted don’t tend to dwell on much is that if he is acquitted in one or more of these cases, then that’s rocket fuel for him. I mean, it’s hard to imagine him not winning the presidency under those conditions. So there are many, many pitfalls to the road that we’re on But, where do you stand on the January sixth case that Jack Smith brought? Do you think with Adam that might have been better to just Leave that off and just go after the documents case.

Nine months ago, I inclined in that direction. But I think like you, Mona, I’ve gradually shifted over time. And it is utterly characteristic of Donald Trump to act in a way that leaves those around him and now the entire country with no good choices. Yeah. No safe choices.

And I think it was you who said this, The only way to is through. And we are going to have to continue down the path that we have chosen. There’s no turning back now. We’re gonna have to continue down this path, accept the risks, do the best to mitigate them and try to get through this with as little long term damage as possible Excepting, I think, from the start, that there will be some. Mister Trump has left us with no alternative I would, however, like to broaden the discussion a little bit because what we’re wringing our hands about now is nothing new.

Let me read to you from one of my favorite passages in Tokyo’s democracy in America. I think some of you probably already know what I’m gonna quote. Here’s the way it goes. Says tocqueville, There is hardly any political question in the United States that sooner or later does not turn into a judicial question. He found this quite remarkable, and he went on to meditate at some considerable length at the impact that the dominance of law has in the United States, the impact that it has on popular consciousness He says, thus judicial language becomes in a way the common language, so the spirit of the jurist born inside the schools and courtrooms spreads little by little beyond their confines.

It infiltrates all of society, so to speak. It descends to the lowest ranks and the entire people finishes by acquiring a part of the habits and tastes of the magistrate. And I bet the share of Americans who can recite their Miranda rights is a lot higher than those who could give a serious description of any aspect of local politics, for example. So We have been a legalistic country from the inception. Tokyo remarked, on the enormously high share of members of the house of representatives who were trained lawyers.

And in that respect, of course, very little has changed. This is not the way it works and other democracies, but it’s the way it works in ours. And in some ways, we’re living out Our cultural DNA. Whether that’s a good thing or a bad thing? I don’t know, but it is entirely characteristic of who we are as a people.

So that’s a great point, Adam. The law is a teacher, as somebody once said. So did you wanna say something else about what, Bill just said or about the January sixth case?

Well, yeah. Briefly, you know, but I’ve always loved any time people invoke Tokyo on the courts. And and Bill’s exactly right. I there’s another point that’s actually opt tocqueville pointed out that lawyers in America, lawyers everywhere naturally gravitate towards executive power. They love order, lawyer love order.

They love authority. And I think actually watching the story of John Eastman and all the other lawyers who tried to bulk up Trump in this I think that exemplified the worst aspect of what Tokyo was pointing at. But I also think one of the risks is that lawyers around America, especially us lawyer pundits. We tend to gravitate towards presidential power, prosecutorial power. We tend to oversimplify these things, and I think that’s one of the things we have to constantly guard against, but in the other direction, and your point about your quote from Senator Graham earlier exemplifies this, At the same time, we have to guard against the tendency of, especially our elected leaders, to not try to make things clearer.

The tendency of our political leaders to act like almost like color commentators on the situation. And Graham isn’t saying that necessarily that he thinks, the the process, the prosecution is political, but he says other people will think that. Mhmm. That’s the job of members of Congress and and people around the justice system too. To try in good faith to clarify the situation even when it cuts against them so that the American people can actually have a better understanding of these things.

We don’t need the American people to all be constant legal experts and legal pundits, we need the people closest to the system to be the most careful and the most good faith self strained in all of this, and and I think that comments like the one you quoted from senator Graham exemplify the worst.

So one of the things that can be beneficial about this whole process is that I think we would all agree that we live in an era of rampant lies and falsification and information silos. And while court rooms are not perfect discoverers of truth, they are a lot better at divining truth than cable TV or the internet or Twitter. And just this past week, Judge Sarah Longwell, in the Giuliani case, You know, talked about how his playing to the crowd, she said that may play well on a public stage to certain audiences, but in a court of law, this performance has served only to subvert the normal process of discovery in a straightforward defamation case and she went on to rule against him and to say that, as a matter of law, you know, he’s forfeited his rights and and now he owes Shay Moss and Ruby Freeman a lot of money. And it’s, already for their lawyer’s fees and other penalties, and he’s going to now face trial just on the matter of damages. And, you know, it is a nice corrective.

Sometimes we’re overloyered in America. No question about it. But At the same time, it will be refreshing won’t it to have a situation where somebody is going to be under oath and cannot engage in the kind of BS that is so pervasive in our system. Won’t that be possibly a kind of cleansing moment. Feel free anybody who wants to jump in on that matter.

Mon, I’ll just say on this. I I hope you’re right. I think you’re right. But I don’t know that courts are necessarily the best venue for finding truth. They’re supposed to be, but what they really are is the best venue for reaching factual conclusions that we treat as decisive and legitimate.

I think of how many cases in any episode of say law and order would turn on evidence being allowed in or allowed out. And it might be factually correct evidence that for some reason, you know, accurate factual material that for some reason can’t be allowed into the case. That’s gonna hold true for these cases too. So I hope it brings us to truth. But I also hope it brings us to, conclusions that that Will Saletan as legitimate, and I don’t know that either of those things is gonna actually carry out.

Okay. One more thing though about bringing this January sixth case. And that is that, I was very struck by something that Jack Smith said in the January sixth indictment. He said President Trump had the, or defendant Trump, had the perfect constitutional right to lie. And to claim to have won an election that he actually lost.

But it is one thing to lie to the American people. It’s another thing to attempt to defraud through lies. And that is the extra step that he took. It wasn’t just that he lied, and he’s not being prosecuted for lying. He’s being prosecuted for lying and attempting to, for example, seat fake electors, and thereby through fraudulent means avail himself of a second term that to which he was not entitled.

That’s defrauding the American people. And that just seems to me to be an enormous extinction that we all ought to bear in mind. Anyone?

Mona, I think you’re right about that, but I would add something else. And that is that there are dozens of people serving very hefty sentences right now for having participated in the you know, attack on the capital on January sixth. Many of them have said directly I did this because the president told me to do it. And this was not a spontaneous gathering serendipitously thousands of people suddenly found themselves on the the west side of the Capitol gathered at the time that Congress happened to be counting the votes. For the president.

So I think that’s important too, and I think in terms of our sense of justice, you have to have Some sense that it isn’t just the little guys who go to jail when something terrible happens. That you have to have people who were part of organizing the effort, who orchestrated what happened, that they have to have some measure of justice. And just this week, we saw that one of the organizers in the Proud Boys case, these were people remember that Donald Trump said during I believe it was a debate. Stand down and stand by.

Stand back and stand by. Yeah. Standby. Yep.

Standby. Right. Right. Standby. And so one of them has actually ended up now being sentenced for, I think, seventeen years for the January six crimes and Another is awaiting his sentence.

I think that’ll come next week. So I I think that’s important to take into account too. Justice matters.

Mona, may I add something?

Of course.

Really, two points. First of all, Jack Smith is obviously right that Donald Trump had a constitutional right to lie, but that simply tells us that rights often include the right to do wrong. And we should not lose sight of the fact that lies particularly from very high sources. Are a profound moral wrong with profound civic consequences. And So as we look at the legal aspects of this case, let’s not lose sight of how civically damaging lies can be.

My second point is a sort of a footnote to what Linda just said. In the middle of the civil war, Lincoln was confronted with a plea for clemency from a very young soldier who had deserted. And after honoring the case and considering all the facts and circumstances, Lincoln extended clemency to him, and he was challenged. And he said, shall I hang the soldier boy for desertion? While allowing the wily agitator who induced him to dessert to get off scot free.

I think that that was the right question.

I was thinking of that exact same thing, Bill, except I didn’t remember the quotations. Well, you did.

I’m not sure I got the quotation exactly right, but it’s pretty close. Yeah. And so I think our our greatest president created the analytical predicate for lenders’ remark, which I agree with completely.

Right. Okay. Well, these are deep questions. I would just close this topic by just pointing out that, I think all of us are very concerned about maintaining norms and standards and not politicizing things that ought not to be politicized. On the other hand, It’s just a bit rich that we’re getting these pleas for maintaining sacred norms from the camp of people that have been trashing them for the last eight years.

There’s deep irony there. Alright. Well, let us now move on to our final segment, which is the highlight or low light of the week, and we’ll start with our guest, Adam White.

Well, maybe if I could lighten things up slightly given the dark tone of the dark context of of today’s conversation. This week in the mail, I received a copy of a book from a small press called Fireflies Press. And the the title of the book is Witt Stillman, not so long ago. And it is a special retrospective on the career of the film director. Witt stillman, director of movies, like, Metropolitan and Barcelona, and one of my favorites, the last days of disco.

Contains a bunch of a number of reflections on his career and a long interview with him. And so if we haven’t had enough sort of reflection on social decline, in thinking about January sixth. I highly recommend this book and his movies.

I think Metropolitan might be one of the most conservative movies I ever It’s a good one. Okay. David Lincoln.

At the risk of appearing to be on the payroll of the Atlantic since I plugged a piece the Atlantic last week. I’m going to, run that risk and plug one from the Atlantic again this week And this one is sort of pertinent to, the conversation on the podcast up till now, this is a piece by David From, in which he weighs in on the, burgeoning debate about whether we might be able to bar Donald Trump from serving as president again under section three of the fourteenth amendment. Some very prominent lawyers, some of them kind of center right conservatives have come out in the last few weeks to endorse the idea of using the text from that passage of the fourteenth amendment, which was written to restrict confederate officials from serving in offices, and whether this could be up revived and a applied to Donald Trump, I presume, in the event of his conviction for these cases. While I came off sounding pretty ambivalent or in my remarks earlier in the podcast about these cases, I am not ambivalent about this suggestion I think the fourteenth amendment idea is, a really terrible idea. And, in fact, David from’s headline on this piece is the fourteenth amendment fantasy, which I think is a fitting title, and one I would endorse.

David from a good ally and a colleague who’s been on the podcast many times, I’d urge listeners to read this piece and ponder his arguments, which I think are quite powerfully rendered.

Okay. Adam, I think you’re also very dubious about the fourteenth amendment approach. Right?

I am. The author is Will Bowde and and Michael Stokes Paulson in this law review article. They’re they’re great scholars are very thoughtful, and I’m very wary of applying that part of the fourteenth amendment past the civil war at least in contexts where It really is not clear whether the conducted issue counts legally as an as an insurrection or a rebellion. And I think the most difficult part of their article is that they suggest that this prohibition against Trump’s candidacy is automatic and self executing. It must be applied, may be applied.

By any election official Secret Podcast of state. I think that approach is fundamentally at odds with our basic Republican structure of elections. It would be chaos. Alright, Bill Galston.

Well, now in news from the rest of the world, Three weeks ago, I took a deep breath and published my weekly column in the Wall Street Journal beginning with a with a sentence that went roughly as follows. At the roof of looking really foolish in five years, may I raise the question of whether we have seen peak China? Well, since I penned those self protective words, the floodgates have opened, and suddenly there is a flurry of pieces about the extraordinary difficulties that the Chinese economy in particular seems to be experiencing and the way those difficulties interact with Xi Jinping’s style of governance. In this connection, I would like to commend a very substantial chunk of the most recent issue of the Journal Foreign Affairs. That recently thudded onto my doorstep.

There are several articles there that are worthy of careful reading and reflection I was particularly intrigued by the article written by Adam Poseen, who’s president of the Peterson Institute for International Economics right across the street from where I’m sitting about the ways that China’s economic difficulties provide the United States with various opportunities, including the opportunity to perhaps adopt a less confrontational stance towards the Chinese economy without undermining any of our political or military objectives. Very challenging piece. One of many, I commend that portion of the issue to the attention of all listeners.

Okay. Thank you Linda Chavez.

I’m going to join Adam, I guess, in doing a little bit of nostalgia for My highlight of the week. This week, we celebrated the anniversary of Martin Luther King’s famous speech on the mall, which was part of the march on Washington. And I think everyone, even, you know, school children can tell you about the March on Washington and Martin Luther King’s role in that. Very few people, however, will be able to tell you who the real organizers of that March were. And in my view, the heroes that gave that platform to mlk junior And they included the labor leader, a Philip Randolph, who was the head of the brotherhood of sleeping car porters.

At the time, but also a man who has not a commonly known name in civil rights history, unfortunately, and that is byard rustin. And by our Dustin who was really behind putting together those thousands, they had hoped they’d get a hundred thousand people. To Washington. They ended up with more like a quarter million people gathered on the mall. And there’s a was a wonderful piece in the New York Times last weekend that really talks about this.

The nineteen sixty three March on Washington changed America. Its roots were in Harlem. And they talk about the role that the labor movement played, the role that again, People who are not necessarily common household names, Norman and Velma Hill. Velma Hill was a vice president of the American Federation of Teachers when I was there. Norman Hill led for many years.

I think he may still do that. He led the a Philip Brand Off Institute. I guess he’s now director of the Congress on racial equality, Eleanor Holmes Norton, who’s now a US congresswoman from Washington DC. And Rochelle Horowitz, who was a member of the staff of the American Federation of Teachers. So it’s a really interesting piece.

I think there’s actually going to be a movie coming out in the fall that is going to be on Netflix, which is about fired rustin, who was really somebody that was very controversial at the time because he was openly gay, which in nineteen sixty three was a very big deal. And was not embraced even by liberals. And there were those who wanted fired kept away from organizing, kept out of any kind of visible spot. But I think this piece which appeared in the New York Times is well worth reading and I would recommend it to our listeners.

Well, thank you for that. Early in my career, I got a letter from Bayard Reston — Wow. — over the

moon. That’s

that’s great.

I knew him as a young socialist, as a member of the young people socialist league. He occasionally came to meetings and stuff. So I had the privilege of seeing him.

Okay. I did have a a fairly, dark highlighter low light, but I I think I’m going to switch it out because there’s been enough of that. And this isn’t exactly uplifting, but it’s another topic that is important, and we don’t spend enough time on, then I’m gonna commend an op ed by Catherine Ramel, who has also been a guest on this podcast in the Washington Post, and it’s called Republicans and Democrats are falling for the false allure of autarky. And this actually also relates to Bill’s point about China because China too, under Xi Jinping, is tending toward wanting to be so called self sufficient in so many ways and not engage in international trade to the degree that it was. And of course, China pulled millions of people out of poverty by becoming a great trading nation, and now they are, to some extent, rethinking that whole thing.

And of course, in our country, don Trump imposed all of these misbegotten tariffs mostly on our allies and also on our competitors and, of course, most of these tariffs were paid for by American consumers and cost American jobs. And Joe Biden and the Democrats continued this same policy. So, you know, when you get both political parties joining hands to say, you know, that What we need is more tariffs and less trade. We’ve taken a terrible wrong turn. Free trade as Adam Smith taught is good, even if the other side doesn’t do it.

Right? That’s the thing. I mean, Britain benefited from having free trade policies in the nineteenth century, even when its opponents were imposing tariffs. And of course, It’s better if nobody imposes tariffs, and that is the system that the US and the wake of World War II attempted to encourage a low tariff international regime. And it was very, very good for us, and it was very good for the rest of the world and for our trading partners.

And the fact that there is now this bigger thy neighbor attitude in both parties is very disturbing, and I highly commend Katherine’s piece on this as well as many other articles that have pointed out how destructive the Trump tariffs were to ordinary American workers and consumers. With that, I want to thank our guest, Adam White, and our panel as usual. So our producer, Katie Cooper, and our Sound Engineer Jonathan Last. And of course, our wonderful listeners and we will return next week as every week.