Trump’s Bravado Defense

Donald Trump is rolling out a new defense this week after we got to listen to that bombshell audio tape. At first, remember, he claimed the documents it Alaga had been planted by the FBI, then he insisted that he had declassified them with his mind. Well, now he’s says that the war plans that he was talking about on the tape, all of that talk was just bravado. Secret plans, no, he says he was talking about plans for his golf course. Not Iran war plans at all.

Golf courses. Meanwhile, the Supreme Court nuked Maga’s independent state legislature theory and Rudy is talking to the special counsel. Welcome to the Bulwark podcast. I’m Charlie Sykes and this is our new companion Secret Podcast, the Trump trials We feature every Thursday in partnership with Law Fair. Joining me again this morning, Law Affairs editor in chief, Ben Whittis.

Ben, how are you?

I am terrific and anything I may ever have done wrong was just bravado.

It was just bravado.

It was just bravado, you know, locker room talk, bravado, and plans for my new golf course. And it’s just outrageous that people would suggest otherwise. Also, Charlie, I have been indicted for you.

For you.

And I just sometimes feel like you don’t appreciate my sacrifice for you enough.

I am doing this for you. They really want you. It is a sign of the times though that his new defense, the bravado defense is basically saying, I was just bullshitting. Because I’m a bullshitter and that millions of people go, that’s right. Of course, he was just bullshitting.

Also, there is they rather epic gaslighting where Donald Trump is saying, no, what you just heard you didn’t hear? It didn’t happen. None of that actually happened. It is gaslighting. Hey.

Before we get into all that, as you and I are speaking on Thursday morning, the Supreme Court, which is had a very, very busy week, just handed down as expected. It’s ruling in the affirmative action case, essentially barring the use of race in affirmative action. It was six three, ruling by the court. And they write, this is the case called students for Fair admissions versus the President and Fellow of Harvard College. The decision is written by the chief justice, and in brief, it’s a very long decision.

They write eliminating racial discrimination means eliminating all of it. Accordingly, court has held that the equal protection clause applies without regard to any differences of race of color or of nationality and it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual, and something else when applied to a person of another color. Any exceptions to the equal protection clauses guarantee must survive a daunting two step examination known as strict scrutiny. And it goes on to explain why the admissions policies of the University of North Carolina and Harvard do not meet that test.

And so As expected, the court has now turned the page on affirmative action. This will have tremendous implications for higher education. But Your thoughts about this, Ben, because this is one of those cases that has been percolating I wanna say for thirty, forty years now,

at least since nineteen seventy six when the Supreme Court heard the Bakkey case. I haven’t read the opinion yet. It literally just came out. You informed me of it as we were about to go on air. Mhmm.

I would say this is entirely unsurprising in that this is one of the foundational issues that most separates conservative from liberal judges. There are six conservative judges on the Supreme Court. There are three liberal judges. That’s the vote. So I would say this is an entirely predictable result of Trump getting to a point three conservative justices to the Supreme Court.

I think the conservatives may be prized at the adaptation strategies of universities that will probably mitigate the impact of this. There are I suspect ways to design affirmative action programs that are more inconvenient by this than forbidden. But look, if you’re a classic judicial conservative. This is a result you have been thinking about really since affirmative action programs in higher admissions were born. And if you’re a liberal or a moderate who favors diversity programs.

This is the highly offensive result that you’ve been worried about for a long time and up there with daubs as a kind of shock to your sensibilities of what the courts are for. And that’s all without having read a word of the opinion.

I think this inevitably will be seen to the lens of the Trump era and, you know, the new Maga court. But the reality is as as you point out, this predates Donald Trump. This has been percolating for a very, very long time. I would also point out that I think this is going to play differently with the electorate than the Dob’s decision. The Dob’s decision was very unpopular.

In fact, I think polls would suggest that Port for abortion rights has actually increased in the years since the court overturned Roe versus Wade. There are mixed polls on this, but the polls that I have been tracking would suggest that public opinion is pretty much turned on its head when it comes to race based affirmative action, that the majority of Americans are skeptical of it. I think it was back in was it two thousand twenty? There was actually a referendum in California on restoring race based affirmative action. And, you know, this is one of the most liberal states in the country.

And the same day that California voted overwhelmingly for Joe Biden. They voted overwhelmingly against restoring race based affirmative action. Now I know there are people who say that this is not a harbinger. This is not a leading indicator. But I think it’s certainly an important data point to people that when this has been on the ballot, this is not an outlier position.

I agree with that. The poll data, this is not similar to dobbs in the likely voter React. At all.

Mhmm.

When I said it was similar to Dobbs, I meant in the pantheon of liberal fears of what a Supreme Court would do.

Oh, right.

I think this is likely to be taken with a bit of a yawn by the general public and maybe even with modest favorability, especially because universities will be very creative, innovating the consequences of it. And there are all kinds of strategies that universities Will Saletan to achieve diversity in their classrooms without overtly considering race. And so I think the consequences of it may be a little bit less seismic than people expected, in contrast to Dobbs, where the consequences were, if anything more seismic than people expected. That said, you know, if you’re a civil rights oriented liberal, this is a big shock to the system.

He made a reference to workarounds. This is from the the court’s opinion near the end of it. Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise. But despite the dissents assertion to the contrary. Universities may not simply establish through application essays or other means the regime we hold unlawful today.

So it’s interesting. They anticipated at least one of the workaround I think the most likely alternative will be that this will become more income based, more class based, that the programs will be changed in that particular way. So we’ll see how that plays out. Okay. So let’s go back to the audio tape.

Let’s go back to the bravado defense because in terms of developments in the Trump trials, this was the big one this week. And for the first time, we got to hear this audio from the Mark Meadows memoir meeting at Bedminster. When it was leaked to the media on Monday.

Well, with Milli, let me see that. I’ll I’ll show you an example. He said that I wanted to attack Iran. Isn’t it amazing? I have a big pile of papers.

This thing just came off. Look. This was him. They presented me this. This is off the record, but they presented me this.

This was him. This was the defense department in him. Wow. We looked it up. This was him.

This wasn’t done by me. This was him. Mhmm. All sorts of stuff. Page’s loan.

Adam, let’s see here. Yeah. I just found isn’t that amazing? This totally wins my case, you know.

Not this case.

Except it is, like, highly confidential and show secret. This is secreted

for it. Look look at

this secret. You attack

Pretty well, yes.

This was done by the military, given to me. I think they can bear with me. Right?

I don’t know. We’ll we’ll have to see. Yeah. We’ll have to try to

Didless about it. You’re out of yeah. See, as president, I could have did less

about it.

No, I can’t. You know, but this is Yeah.

It’s hard to have a prop.

Is that interesting? Yeah. This is so cool.

It is so cool, so bad. I’m thinking how often do prosecutors get their hand on someone describing in great detail all of the ways in which they’ve committed felonies.

Yeah. And with particular attention to explaining their own thinking in a fashion that highlights his criminal intent. It is pretty beautiful. So Here’s the thing. There is nothing in this tape substantively that we did not already know.

In the sense that the material points of the tape are all transcribed in the indictment itself. We knew what Donald Trump said on this tape. And yet, if you think about it from the point of view of a juror, you’re in a much better position hearing his voice say those things, hearing the laughter, hearing the papers rustling, which are mentioned by the way in the indictment. But somehow hearing it feels different, you really are in a position in a way that you’re not otherwise to say how on earth is a juror going to say this is not what the government thinks it is.

Mhmm.

You know, that this is not evidence that he a had this information, b knew it was classified, was aware that he did not declassify it as he said. Was specifically aware of the level of classification and the sensitivity of the material. And was using it for self promotion to staff and to show off. And for entirely self interested purposes, how is a juror gonna hear that and reasonably conclude anything else? And I do think that point is made much more vivid by the audio, not just the transcript of the audio.

But I have some questions. First, the document that we’re talking about here is not included in the indictment. There’s no indication that they actually found this document, and that he’s not charged with having this document. That’s number one, which relates to my second question is, this took place at Bedminster why didn’t they execute a search warrant in New Jersey? Why didn’t they search for documents at Bedminster if they had this kind of information.

Alright. So the first point, I’m not entirely sure that the premise is correct. So he says he could not find this document, but the government specifically refers to it as a classified document in the indictment. And that means that they are prepared to prove beyond a reasonable doubt. That the document was classified, which means that they have to be able to prove that the document exists.

Right.

And so by assumption is that they know more about this document than we do. And that they are prepared to produce this document that they are prepared to go through a CIPA process and use this document to the extent they need to. So I would not assume that this document is kind of missing what we think is that this document was not returned.

Okay.

But there’s only a limited number of documents that General Milli prepared on invasion of Iran. And remember, you can get him to testify that a yes. This is the document I prepared. Yes. I presented it to Trump.

No. There is no other document like that. And by the way, the document that I prepared was classified at the secret level and dealt with you know, military preparations for an attack on Iran. I think the government is almost certainly in in a position to present. And remember, they also have the testimony of presumably everybody else who was in the room.

And so I think they can surround that with material. Now your second question with testimony that will identify and presumably with the document itself that will identify it very precisely. Your second question is a really interesting one and I don’t know the answer to it. They have this audio tape that says, I at Bedminster — Yeah. Presented a classified document to people unauthorized to receive it.

And by the way, I’m unable to produce this document in response to demands for its return or I’m refusing to or whatever. And so the question of why they didn’t execute a search at Bedminster is a bit mysterious. And is presumably the answer to which is also related to the question of why the activity at Bedminster was not prosecuted. Remember, this conversation is in the indictment, not because he’s being charged that. It’s in there because it reflects state of mind evidence, visa v, the conduct in Florida with which he is charged.

And so the question of why nothing related to Bedminster has been charged is an interesting one and I assume the answer to the search warrant question is tied up in there. But I don’t know the answer to it, and it’s one of the reasons we we have to keep in mind the possibility that there is a Bedminster indictment shoe to drop.

That is interesting. And speaking of state of mind, you also are are getting, I think, a little bit of insight into Donald Trump’s state of mind right now that he’s flailing. I mean, if he’s these new defenses that it was Rovado or that that he was actually talking about golf course plans. I mean, these are, like, laughably absurd But apparently, he’s he’s just convinced that his supporters will believe anything that he says that he can engage in any kind of gaslighting. But it is interesting.

I mean, I I think that this is a moving target and I mentioned this new AP poll actually right before we started the podcast. The Associated Press and the University of Chicago asked Americans where Trump’s actions in this classified document case Will Saletan, unethical, but not illegal, or do you think he did nothing wrong? Among all voters, only thirteen percent said he did nothing wrong. More interesting, among Republican voters, only twenty six percent say he did nothing wrong. Among all voters, fifty three percent said what he did was illegal.

Sixteen percent say unethical but not illegal. You add those together that’s sixty nine percent of Americans think that Trump did something illegal or unethical. But also more interesting, among Republicans, Twenty three percent of Republicans think that what he did was illegal. Another twenty nine percent say unethical but not illegal, So that adds up to fifty two percent of Republicans. So I I wonder whether or not I mean, again, our conventional wisdom is that nothing matters that he could shoot anybody in the middle street, etcetera.

But as these dazzling details come out and as people begin to read more and hear more and it kinda breaks through the bubble, and people like Chris Christie are hammering on this, and Bill Barr are hammering on this, whether or not you are seeing, in fact, some movement of public opinion away from Trump on this issue? What do you think?

Again, I don’t know. I don’t think anybody knows the answer to this question. His basic poll numbers are remarkably stable.

Mhmm. Yeah.

You know, from forty two percent of proof of him irrespective of how clownish or vile or clown with flamethrower as you like to say

—

Yeah.

—

his behavior is. And so I think we should start with a basic skepticism that anything moves the numbers. That said, these are super powerful allegations. And they’re supported by a remarkable diversity of evidence that is extremely strong and the more he tries to puncture it, the stronger it seems. So if you’ve flitted between they planted the documents that were classified, that ID classified, that was all just bravado, and and that I had an absolute right to talk about my golf courses, and by the way, give me my documents back.

At some point, the only reasonable conclusion from his own discussion of it is that he’s guilty of sin and he can’t stop talking.

He’s a chronic liar and grifter as well, which is something we’ve known and we’ve known all along. But it’s kind of right out there right now.

The whole thing is sort of unsubtle, and it gets unsuttler and unsuttler.

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But what is interesting about this you know, that Donald Trump is a chronic liar and grifter and and fraudster, also a a threat to national security and that he’s been trading on his office for years One of the interesting developments is that now we have at least one Republican who is saying it. And, like, I do not want to be confused with being a Chris Christie fanboy. On the other hand, I have to say, this guy is bringing it. So Chris Charlie Sykes sits down with Caitlyn Collins, and talks about a lot of this including Jared Kushner and the trading for favors and raising money for his defense. As a palate cleanser.

Let’s just listen to Chris Christie last night on CNN.

Just remember something. He’s a billionaire. He’s a bill billionaire, self professed billionaire. Why can’t he use his own money to pay his personal legal fees and not use money coming from the public? It’s disgrace graceful.

And it’s a continued grift. And look, the Trump family has been involved in grafting for quite some time. He was doing this in terms of the people who got paid out of this pack before, whether it was Kimberly Gilfoyle or other members of the family, Jared Kushner six months after he the White House gets two billion dollars from the Saudi sovereign wealth fund when Donald Trump had put him in a position to be in Middle East? What was Jared Kushner doing in the Middle East? We had Rex Tillerson and Mike Pompeo as Secret Podcast state.

We need Jared Kushner. He was there to make those relationships and then he cashed in on those relationships when he left the office. So what Donald Trump’s doing now is just a continuation of what he’s permitted his family to do over the entire course of his time as president.

Why do you think he’s not using his own money to pay for his legal fees?

Because he’s the cheapest person I’ve ever met in my life. That’s why. And and and what very good at Caitlyn is spending other people’s money. And if you look at his history in New Jersey, through his And

you think he’s misleading vote his voters, his supporters by

Well, I think those support you know, write a check to Trump for president, they think they’re paying for campaign expenses, not for personal legal expenses. This what happened to him let’s say with the documents case, had nothing to do with the campaign at all. It’s a personal alt of his mistakes he made that he’s now being held to account for it has to pay lawyers to defend him.

He’s just all out of bleeps to give, isn’t he? And he’s just landed all out there.

He is, and he’s, you know, attempting to make up for years of covering for Trump. Which, of course, you can’t do, but it is nice to see him try.

Good.

And it is a good thing to have somebody as argumentative and pugilistic and articulate as Chris Christie and smart on his feet making this argument to Republican audiences so that you guys at the bulwark are not the only ones. But

It’s not just us.

You know, I I do there’s a couple of important substantive points here. One is, you know, Christie is right that the use of campaign legal fees to pay personal criminal defense funds for matters unrelated to campaign is a dicey proposition. And I have not studied the law on it, why the campaign thinks this is an appropriate or reasonable campaign expenditure, and I’m not an spurred on campaign finance law. But I will say it is highly misleading to raise money for somebody’s campaign for president and to spend it on their personal legal defense. I will also say that the logic of this theory runs out because you can’t solicit donors to spend prison time on behalf of the candidate.

Right? So the logic of this would be okay give money to Donald Trump and you can externalize the cost of his legal jeopardy to the campaign and therefore ultimately to the donors to the campaign. And that works with money. But it doesn’t work with criminal sentences. And so I do think the idea that Trump can basically pass on these costs to the voters.

It’s offensive and it’s objectionable but the logic of it is limited.

Well, and this is not directly related, but we have heard reports that Jack Smith is also investigating the the mass of grift around the big lie that in fact Trump or the Trump campaign may have engaged in wire fraud by telling people that, you know, contribute to a fund to, you know, try to overturn the election when in fact none of it went to all of that. So we don’t know about that. I wanna move on to some of the the other major developments, including the Rudy Giuliani story, the importance of significance of two other Supreme Court decisions this week. But there’s the interesting sidebar here. Walt Nouda, Trump’s box moving body man, and co defendant in the documents case, was supposed to be arraigned on Tuesday at the Miami Federal Courhouse.

Your colleague Anna Bauer was writing about this. He was not arraigned on June thirteenth with Trump because he had been unable to secure any local council. But on Tuesday, he didn’t show up because of, you know, travel delays out of New York where presumably, you know, now does working at Bedminster supposedly spend eight hours at the airport. I mean, that kind of thing happens. But the real reason correct me if I’m wrong about this.

The real reason why the arraignment for the magistrate not judge Cannon didn’t proceed was that now to still can I find any local lawyer to take his case? So what’s going on there?

So, again, we don’t know the amount of information was limited and was limited to the fact that he had not yet been able to secure local council. This is shall we say unusual in a, you know, a prominent white collar criminal defense matter to have somebody who two weeks after initial arraignment, well, didn’t have local counsel and so couldn’t be arraigned as an initial matter arrangement gets postponed for two weeks and two weeks later still doesn’t have local counsel. The explanation for it is murky. And actually, murky is is a generous word for it. No explanation was given.

I would assume that the answer has something to do with a lot of local lawyers having conflicts and that a lot of local lawyers of a disposition to handle a case like this may have other Mar a Lago employees as clients and they may be witnesses. And so there may be some conflict issues?

And maybe they just wanna be paid, and they just wanna make sure they get paid upfront.

That’s the other issue. Right? You know, it’s it’s unclear who would be paying these bills. And, you know, this is not a network of people who are famous for paying bills on time, unlike representing Trump. Trump has been able to navigate this over the years because he is a star, right?

And when you’re a star, they let you do it, including not pay your legal bills. So what happens is people get entranced with the idea of representing a president or a former president.

Mhmm.

And so they sign up and sometimes when they’re smart, they get a huge retainer upfront and sometimes when they’re dumb they just, you know, end up getting stiff But you at least get the star fucking value out of out of having represented the president query whether for any of them, it turns out to be worth it. But that’s a different question. Walt Nauga, no one’s gonna remember his name. Ten years from now. And so, you know, you were the unpaid local council because he’s got counts He’s got a, you know, a good criminal defense lawyer.

He’s just not got local counsel, so you’re gonna be the unpaid local counsel for the Trump body man who everybody forgot and, you know, it’d be one thing if you expected him to flip and become the star witness. But I don’t think people really expect that.

Speaking of flipping and singing, I wrote in my newsletter that Just a reminder that we don’t know what we don’t know and nobody knows really nothing. But we are hearing now that Rudy Giuliani was interviewed by Federal theaters last week about Trump’s efforts to overturn the election. He is saying, as lawyers are saying, was completely voluntary. And this voluntary interview is known as a Profer agreement and is seen as a sign that Jack Smith is seeking witnesses who might cooperate in the case because As the Times explained, a proper agreement is an understanding between prosecutors and people who are subjects of criminal investigations that can precede a formal cooperation deal. The subjects agree to provide useful information to the government, sometimes to tell their side of the story to stave off potential charges or to avoid testifying under subpoena.

So how should we read this? What is Rudy Giuliani doing? And why would Jack Smith you know, basically make a profit to this guy.

So it suggests that Rudy is contemplating, cooperating, and and seriously contemplating because you don’t offer a proper. And so usually what happens with a proper is that somebody comes forward and they believe they’re gonna get indicted, which Giuliani clearly has reason to believe he’s gonna get indicted. They come forward and say, I have information that could be helpful. And the government says, well, what can you give us? And the problem with that question is that you can’t answer it without violating your fifth amendment right.

Right? So if you answer that question, you give information that could then be used against you.

So it’s kinda like immunity for the day, Queen for a day. Isn’t that what it’s called?

It is called Queen for a Day. And here’s how it works. You come in, you there’s an agreement that as long as it’s true, the information that you provide cannot be used against you.

Mhmm.

And on that basis, you give a voluntary what’s called a proffer. It’s information that you would testify to if you were in a position to testify freely. And then the government has a couple options. It can say, actually, this proper isn’t interesting to us. It doesn’t give us enough Sorry, we’re gonna prosecute you anyway, but then it can’t use any of the material, or it can say, This information is really valuable.

We need it. Let’s do a deal with you. And then you figure out, okay, what are you prepared plead to, what are you prepared to, in the extreme case, will they just immunize you in exchange for the testimony? There’s no way they’re immunizing Rudy, on it. If there was a proffer, it is proceeding some kind of a plea agreement.

And the third possibility is that they decide you’re lying in your proper, and then they can use all the information that isn’t true if you lie in the proffer, that is you know, that’s Paul Manafort land stuff, and that’s a real, real problem. So I think the best way to understand this is that Rudy Giuliani is contemplating a plea deal. And probably what happened was that his lawyers went to the government and said, our guy can be helpful. And the government says, alright, let’s sit down. What do you have?

Mean, that’s potentially just a huge development because Rudy Giuliani is at the center of almost everything that went on on January sixth.

Correct. But there are important gaps. Remember that there is no conceivable worse witness. Than Rudy Giuliani. I mean, literally, there’s video of him in a bed with a fifteen year old from Sasha Baron Cohen.

You might have some credibility issues. You’re suggesting that he might not be the most reliable narrator in the world.

Right. But he might be incredibly important for purposes of telling you what happened, but he’s somebody you’re gonna as a prosecutor put on the stand, very reluctantly. This isn’t a Cassidy Hutchinson situation. But it is a situation where he can corroborate all kinds of things that you think you know, he can refute things that you think you know. And the other thing is remember having him plea would be an amazing accomplishment in its own right.

That would be an earthquake. Yeah.

Right. I think it’s a big deal. It’s early to say what we think it means, but the fact that he’s voluntarily talking and not litigating to avoid a grand jury appearance or just being stuck in front of a grand jury, and the fact that somebody told the New York Times, it was a proper conversation. It’s a big deal.

So speaking of big deals, speaking of huge deals, Supreme Court came down with two major decisions this week. I wanna start with this one. The independent state legislature theory, they nuked it from space. This idea, the state legislators have the authority to set all election rules with little or no oversight from state courts. This decision in the case known as Moore versus Harper, basically, blew up one of the favorite manga theories that legislatures could simply ignore the popular vote, ignore federal courts, The court voted six to three rejecting that theory in the case involving a North Carolina redistricting map.

And a lot of observers have noted the court had gone the other way, it would have upended both, you know, congressional and presidential elections. Judge Michael Ludwig basically says this is just enormous in terms of, you know, its significance. So talk to me about this in terms of what happened on January six because really this theory was underlying a lot of what people like John Eastman were arguing. And now it has made it clear that that was legal BS. But also going forward, it’s not one of the weapons, not one of the subterfuges that they would be able to use to overturn election in the future.

So How big a deal was that decision?

Well, so it’s a big deal in a dog that didn’t bark kind of way. So we’re never going to look back on something and say, you know, there was an attempted coup, but the Supreme Court stopped it. Right? Because this is going to actually prevent people from ruminating on the kind of legal theories that had John Eastman’s heart going pitter patter and that the president was trying to force vice president Pence to adopt. So there are respectable and unrespectable versions of the theory.

The respectable version is something that flowed from Bush V Gore and has been floating around there for a long time that the legislature of a state has special status in both congressional and the selection of electors’ laws. And the Supreme Court kinda rejected that, actually. The unrespectable theory was never respectable enough to warrant Supreme Court conversation. But because the respectable version was available got this kind of, hey, we could be kind of edge lords and take this to its extreme kind of and that’s what happened in the post twenty twenty context and which was you know, feared for future elections. And so I think the consequences of this is more that it sweeps that stuff off the table and says, don’t even think about it.

The basic premise is not correct. And there are six votes on the Supreme Court for that, including Brett Kavanaugh and the Chief. So, you know, you’re not in the same position that you were if you’re John Eastman, where you can say there are these open questions and be five percent right. And I think that matters in a big way.

Another case, it might matter in a big way, which I have not paid this much attention to us. I really wanna get your analysis of it. The case of counterman versus Colorado, the implications it has for prosecuting Trump for January six. Now this particular case had nothing to do with Trump for January six. It involves this Colorado guy.

Who was convicted for stalking a local musician. He was sending her messages on Facebook for two years. The court ruled that the guy, Billy Connerman, was convicted on the wrong legal standard. And this was a a seven to two ruling. Justice said the jury should have been required to make a finding about whether he intended his comments to be genuine threats.

You had a professor at the University of Minnesota on Lawfair writing about the most interesting part about this case is what it might signal about the viability and probability of prosecution of Trump. He said, look, in short, it just got meaningfully less likely because justice Kagan writing for the seven two majority ruled that under the first amendment, the government has to prove in these true threat cases that the defendant knew that the communication could be reasonably perceived as threatening. That is the defendant was reckless in making the threat. So, I mean, all nine of the justices agree the prosecution’s for inciting violent or lawless action, which is a different crime. Do require establishing specific intent, not just recklessness.

So what kind of a message did this send to Jack Smith on any cases that he was contemplating bringing against Donald Trump for inciting violence on January sixth?

Yeah. I think Alan Rosenstein, who wrote this article, Has it exactly right, which is look, it’s not clear whether this was an intentional effort by the justices. To send Jack Smith a message. I I wouldn’t say that. But all nine of them in different ways, distinguish between the threats issue that were before them in counterman, which, you know, really there’s a lower first amendment standard.

If I say to you Charlie, I’m gonna kill you, you don’t need to prove that I specifically intended to threaten you. You need to prove something much lower. But if I say Charlie, let’s go storm the capital by contrast, all nine of them agree that for that to be an incitement under the first amendment. I have to mean for you to be inspired to have imminent lawless action.

Mhmm.

And so I think the message to the Jack Smith will take away from that is Boy, you really can’t fudge the degree of intent and imminence at issue in an incitement case. There’s no way around it. None of the fancy legal theories about how it’s different because it’s January sixth or it’s different because there’s it’s congress. Right? Like, there are all these theories about how to get to incitement, and the Supreme Court just unanimously you know, really waived people off of that.

Mhmm. There’s not a lot of evidence, by the way, that Jack Smith was looking at an incitement theory. You know, he’s looking at the grifting stuff. He’s looking at fake electors. He’s looking at the contact with Pence And I’ve always assumed that the reason that he was avoiding the incitement theory is that, you know, frankly, it’s a stretch under First Amendment law.

The First Amendment is really protective in the incitement department under a case called Brandenburg from sixty nine The Supreme Court just unanimously said, yeah, we mean that. And whether they said that about it in the context of trying to send a message to Jack Smith. He’s a smart lawyer. He will read this opinion. And unless he’s got overpowering evidence of intent to incite imminent lawless action.

Like, for example, evidence of the type that Rudy Giuliani or Mark Meadows could give him, For example, Donald Trump told me he needed to speak to the crowd so that they would go storm the capital. That would be the kind of evidence. But unless you have that, there will not be an incitement prosecution.

More specifically. So before this countryman case, you Trump stopped the steel speech and is ordering the removal of, you know, the magnetometers at the ellipse, you know, might provide a basis for prosecuting him for the insurrection. But but now having to prove that Trump intended violence instead of just being reckless about the possibility of violence, really no prosecutor’s gonna bring an indictment unless they’re really, really sure that they can prove beyond a reasonable doubt that Trump was specifically trying to forcefully disrupt the electoral college vote. Really raises the bar. You have to prove intent that he wanted them to commit acts of violence.

And you can imagine the various defenses against that, including first amendment defenses.

Here’s a good way to think about it. There’s two types of evidence that, you know, can bear on intent. One is direct evidence. Right? Charlie told me he was going to rob the bank.

Well, the bank got robbed. Right? This shows that it wasn’t an dental robbery. You told me we’re going to do it. The second is sort of circumstantial.

He did this, he did that, did that. The only reason you would do these things. He got rid of the magnetometers. He said they’re not here for me, blah blah blah. The only reason you would do these things is if you intended.

Reading this opinion, you want direct evidence of intent, like him telling somebody I want them to go storm the capital. I’m gonna give this speech and send them to the capital. You want something really direct, really impossible you want something like that tape. And if you don’t have that, you’re not gonna bring the case.

Suppose this is a more minor development in the one of the New York fraud cases. It’s hard to keep for me to keep trackball without it right in front of me. I I need a chart in front of me when I’m talking with you. Avanta Trump was dropped from New York’s two hundred and fifty million dollar fraud case against Trump. Any significance to that why Ivanka is now out of that case?

I have no idea. I have no idea. And, you know, I have not followed the civil fraud cases closely. I mean, I’ve sort of read the newspaper about them, and I don’t know what her alleged role was or why it has now been dismissed.

This is again one of the reminders that that there was once a time when the civil fraud trial would have been assuming that anybody in public life — Right. — you know, would have been disqualified for any one of these things. And now it’s like a footnote to a footnote sort of off on the side. And this is the world that we live in. Ben Whitis, thank you so much for spending time with us today on this episode of the Trump trial.

We’ll do it again.

Thanks, Charlie. You’re a great American.

As are you, and thank you all for listening to the bulwark pod cast today. I’m Charlie Sykes. We will be back tomorrow, and we’ll do this all over again. Bower Podcasts is produced by Katie Cooper, and engineered and edited by Jason Brown.