Will Saletan: A World Series of Whataboutism

Good morning, and welcome to the Bulwark podcast. It is Monday, June twelfth two thousand twenty three, and it is gonna be just one hell of a week. And because it’s Monday, I’m joined by my colleague Will Saletan. First of all, happy Monday, Will.

Thank you, Charlie. It’s summertime here. The days are getting longer. The rabbits are out. I start moving boxes to hide them from the FBI.

You know?

You don’t put them in the bathroom, though.

No. We don’t have room in our bathroom.

It is interesting. The front pages, this is like a digression right at the top of the show. Thought it was interesting that that all of the newspapers in America went with pictures of the boxes in the bathroom — Mhmm. — on Saturday morning. Well, as we all know, since we last spoke in fact, since we did the regular podcast, the details of the indictment were unsealed forty nine pages of just, I have to say, jaw dropping details.

Jack Smith did not disappoint. You know, but don’t take our word for it. We’re gonna do a deep dive into all of this. And by the way, if you have not listened, we have an audio version of the indictment. We put out a special bulwark podcast.

On Friday night, it is an a high generated voice, but it sounds very natural. So if you have not had a chance to read it, I would urge you to read it. You’re not able to read it, listen to it. But I’ll tell you in in some ways listening to it is even more compelling. But what I thought was interesting is, you know, again, we have a lot most of the Republican Party has rallied around the president trying to play the game of what about ism.

It’s sort of like a world series of what about ism. It has been a fire hose of disinformation and spin, which is why I wanna start with these remarkable comments, from of all people Will Saletan, Donald Trump’s handpicked former attorney general, and let’s just stipulate that Bulwark was a terrible attorney general home. Who defended Donald Trump again and again who lied on his behalf, who prevaricated But in the end, there was a line he would not cross. And so he was out after the election. And he has been critical of other investigations into Trump.

I wanna make this clear. He was critical of Alvin Bragg’s indictment in New York. But he is he is not hedging at all on his comments on Jack Smith’s indictment. And the details of that indictment that we saw last Friday night. So here is Donald Trump’s own attorney general talking about the details in this indictment.

There are two big lies, I think, that are out there right now. One is, oh, these other presidents took all these documents. Those were situations where they arranged with the archives to set up special space under the management control and security provided by the archivist to temporarily put documents until the libraries were ready. These were not people just putting them in their basement. Okay?

And the second thing that the president this idea that that that the president has complete authority to declare any document personal is it’s obvious it’s facially ridiculous. That opinion had to do with the distinction between official records which are records prepared by government agencies for the purpose of government action and personal documents as opposed official documents, which are things prepared by the president such as a diary or notes, which are not used in the government’s deliberations. And yes, as to the second class, stuff that the president himself generates, the president has some discretion. But these are official documents. It’s inarguable.

The president’s daily brief provided by the intelligence community is not Donald j Trump’s personal document. Period.

And, of course, the most dramatic quote, if even half of it is true, he’s toast. So Will, I know you have been studying this indictment over the weekend. What jumped out at you? What do you think were the most salient points, the, what I’ve called, the dazzling details in the indictment?

Of course, people who looked at this visually saw the pictures of all the documents shrewing around. Like, we’ve all been hearing for months. All the talk about Joe Biden having boxes of stuff next to his corvette and how it was unkempt and it was dangerous. It was exposed. This is ridiculous, of course, you’re seeing an entire bathroom full of boxes that presumably some of which hold classified documents.

But in terms of the facts of the indictment. The things that stood out to me were first of all, there’s the detail about Trump having his aid, well, not a move boxes right before Trump’s attorney is gonna come look at them and tell the archives what’s there. At this point, the FBI was involved in the case. So there is the clear moving of boxes out of the area that’s gonna be viewed. It’s a pretty obvious example of obstruction.

There’s the remarkable audio tape. That’s the one that has caught a lot of people in which this is what July of twenty twenty one, Trump is telling the ghost writer and the publisher for Mark Meadows’s autobiography, He’s holding up a document that apparently is a United States government plan of attack on Iran, a document which, if it fell into the hands of the Iranian government would result in the deaths of god knows how many American troops involved in such an operation. Right? And he’s waving it around and telling them this is, you know, classified. I could have declassified it when I was president.

I can’t now. Essentially conceding that he doesn’t have the authority he claims to have had, that he could be classified anytime just by thinking about it. And so he’s just exposing it to them for the sheer purpose of settling a political score with Mark Nelly, the former joint chiefs chairman. And there’s Charlie, there’s one other thing. There’s the line in the indictment where Trump says to Evan Corker and his attorney, after he has received a subpoena, a subpoena for these classified records, what happens if we don’t play ball?

What happens if we just tell them we don’t have anything? Right. So it’s classic Donald Trump What if I break all the rules can I get away with it?

Yeah. I mean, his first instinct is, can we lie to the government about the documents? His second instinct can we destroy them? Can we get rid of all of them? And this is coming from his own lawyers.

I mean, the level of detail is rather extraordinary. I think this indictment makes it clear that he knew he knew very well that these documents were in fact secret that he did not have the ability to do it. I don’t know if you’ve heard I’m I know you watch a lot of cable television. I just think these montages of Donald Trump from twenty sixteen talking about how important it is to protect class fight information and how he is going to clamp down on anyone that doesn’t understand what confidential or secret documents are. And all of this is listed in the indictment.

I think one of the most extraordinary thing and I agree with everything you just said. One of the most extraordinary things about this is the nature of the document. Because when this story first broke, it was certainly possible we were talking about very routine, you know, over classified pieces of information or trinket or souvenirs or love letters and things like that. What we now find out is that these were very, very significant documents. This is actually from the indictment, which lays it out very, very clearly.

This is like a third paragraph of the indictment. The classified documents Trump stored in his boxes. Included information regarding defense and weapons capabilities of both the United States and foreign countries. United States nuclear programs potential vulnerabilities of the United States and its allies to military attack, and plans for possible retaliation in response to a foreign attack And then having established that he stole them, then he knew that they were classified and that he did not have the power to classify them. What does he do?

He then, you know, is recorded showing them off and talking about them. Battle plans, highly classified maps of war zones are the ones we know about. So I think it’s interesting. Even national review, I looked at this and went, okay, guys, this is really, really bad. Here’s a piece I linked to it in my newsletter this morning.

Trump is nailed dead to rights. And what matters most of all is that it is not some technical offense. What he was doing before only physical rate on Mar a Lago stopped this madness. Turns out to have been less an act of mere carelessness than an act of threat to United States National Security. One fueled solely by Trump’s demented behavior and sense of self entitlement.

That is national freaking review will.

Right. And part of what we find out in these cases against Donald Trump is who on the right was serious about principles that they previously articulated Yeah. Your answer is gonna be nobody. Yeah. But we discovered in the Stormy Daniels prosecution, we discovered in the e g and Carol case who among the so called social moral cultural conservatives was serious about family values and all that.

The answer was almost nobody. They defended Trump on that. Now here in the classified documents case, we’ve moved over we moved out of the sphere of sex and out of sexual abuse and harassment. And we’ve moved into the sphere of national security Right? And so now we find out who in the Republican party is serious about national security.

And I will say, Bill Barr, to his credit, has done a lot of work in national security. Takes this stuff very seriously. Whatever you may think of him in regard to the Russia investigation. And like you, Charlie, I have a very low opinion of the way he handled that. But on this stuff, he really cares, and you can hear in that interview, Charlie — Okay.

—

Bar was on — Yeah.

—

what? Fox News Sunday yesterday. He said, anyone who cares about national security, their stomach would turn at the way Trump kept these documents at Mar a Lago. So The difference is there are so many people on the right who claim to be serious about national security. But when Donald Trump leaks freaking battle plans, You know, one of the most dangerous things, they just turn the other way they don’t care.

I’m glad you brought that up because in the before times, you know, if you’d asked me, Which Republican in public office cares most about national security? I’ve probably come up with a, you know, a number of names, but I might also mention Lindsey Graham. Lindsey Graham, mister National Security, you know, good buddy of John McCain back in before times. And yet there’s Lindsey Graham, and, of course, I might get your take on this because you’ve written so extensively about him. He’s on with George Stephhanopoulos, and he gets kind of mad.

Let’s play Lindsey Graham getting angry that George Tap Annopoulos is asking him questions about what Donald Trump did. Lot of what about is I’m here.

Here’s what I believe. We live in an America where if you’re the Democratic candidate for president, Hillary Clinton, Secretary of State, you can set up a private server in your basement to conduct government business and when an investigation is had about your activity. No. Let me

finish.

You didn’t answer the question. That was ridiculous. Well, yeah, I’m trying to answer the question from a Republican point of view.

Okay. Will, you are a Lindsay Graham watcher for some time. What was that about? I thought he was gonna cry. I mean George said, well.

Well, let me fit?

I mean,

what the hell? What’s going on?

So, Charlie, what’s the famous line about lawyers? If you don’t have the fact you argue the law, if you don’t have the law or the fact you pound the table. Right? So that’s Lindsey Graham pounding the table because he’s angry because once again, like all Trump’s stooges, he has been put in the ridiculous position of having to go on TV and defend

—

Yeah. — Trump’s absurd behavior, and he’s got nothing.

He can kinda feel the embarrassment, you know, percolating in there.

Of course, he’s angry. And at no point does it seem to occur to him, well, maybe I could sort leave the cult and do what Bill Barr did and revert to being a national security conservative.

Well, he also had some other comments on it, and I think you pointed out on Twitter. He’s got experience in military law, and he’s talking about trying to defend what Donald Trump did in saying, well, he’s not a spy. It’s not the espionage. I mean, look, being charged under the espionage act does not mean that you have committed an act of spying it. That’s the name of the law, which he, of course, knows this.

But here’s Lindsey Graham trying to spin the fact that his buddy has been charged with violating the espionage.

Most Republicans believe we live in a country where Hillary Clinton did very similar things and nothing happened to her. President Trump will have his day in court, but espionage charges are absolutely ridiculous. Whether you like Trump or not, he did not commit espionage. He did not disseminate, leak, or provide information to a foreign power or to news organization to damage this country. He is not a spy.

He’s overcharged. Did he do things wrong? Yes, he may have. He will be tried about that. But Hillary Clinton wasn’t.

Your old boss committed perjury in a civil lawsuit. Lost his law license obstructed justice and a dozen ways and he didn’t get prosecuted. I know. He was impeachable.

He said right

with me. He wasn’t a gate.

Okay. So before I get your take, Will, let’s hear from Bill Barr on this, because Bill Barr seemed in some ways to be answering that kind of a defense, like, oh, come on. There’s no espionage here. There’s no I mean, this is overcharged. That’s what Bill Barr had to say about the keeping of the battle plan.

If he had just turned over the documents, which I think every other person in the country would have done. They’re the government’s documents. They’re official records. They’re not his personal records. Battle plans for an attack on another country or or or defense department documents about our capabilities are in no universe.

Donald j Trump’s personal documents. They are the government’s documents.

Yeah. I mean, including Terry plans. So, Will, this is the most damaging part. You know, listening again to Lindsay Graham. I’m struck by the way.

In both of the sound bites we played, He’s really talking about I’m giving you the Republican position. Most Republicans think as if he’s slightly distancing himself from his position. So, again, me about this because Lindsay Graham knows better, doesn’t he? Yeah.

So, God, there’s, like, hundred threads I could pull on here. Let let me pull on this one since you just raised it. The Republican defense that most Republicans think. What we have is a whole bunch of Republican politicians. Many of whom know the details of this case, know about national security.

They go on TV, and they don’t have a substantive defense of Trump on this indictment. So what they say is ordinary Republican voters believe that this is a ridiculous double standard that Trump is innocent. There’s no case here or whatever. And they’re deferring the substance. They don’t have to answer that because It’s a circular argument, Charlie.

Everybody’s a pundit now.

Yeah. So what’s happening is the Republican politicians are going on TV and saying, There’s no case here. This is just the deep state, Biden weaponizing the justice department. And so they’re promoting that idea, that myth among Republican viewers and voters. And then simultaneously, they’re claiming that because Republican viewers and voters think what Republican politicians just told them that there’s no case here, that that somehow undercuts the case.

It is not a rebuttal on the substance. It is a circular argument in which they’re trying to use political propaganda and then citing that political propaganda and public belief to go around the legal arguments. In misstating the

law, again and again, I mean, this is one of those moments where the facts are going to have to work very hard to catch up with some of the spin Lindsey Graham was bad, but Jim Jordan was in a category all of his own. Jim Jordan was on with Dana Bash from CNN. He went there defending putting these very, very sensitive documents in a bathroom. It was a kind of, I would say, it was an intense back and forth between Dana Bass And Jim Jordan, who is the chairman of the judiciary committee of the House of Representatives. Let’s play Jim Jordan.

I don’t know how many more times I can say it. Okay. So if he wants to storm If he wants to store material in a box, in in a bathroom, if he wants to store it in a box on a stage, he can do that. That is the that that is just what the law and the standard is.

What is he talking about? The large point here is that what you’re seeing in Jim Jordan’s comment

and in the comments of many other Republican politicians Ron DeSantis, is essentially a version of the authoritarianism that they learned from defending Donald Trump when he was present. Right? This is a massive all encompassing theory of presidential authority in which any piece of legislation, any executive order, any text can any legal case can be interpreted to say that the president has complete authority to declassify anything he wants, to imagine in his head that it’s declassified, to put it anywhere. The fact that Jim Jordan ends up saying it’s okay to put it in the bathroom, you know, in law classes or logic classes, they call that reductio Ad absurdum. Right?

You’ve reached the point where you’re saying the president can put stuff in the bathroom and that’s fine.

Yeah.

So I’d like to think of this as the bathroom defense. And that’s sort of an illustration of the absurdity to which you end up when you pursue this authoritarian line of thinking. And just to be clear, it’s not true. It’s not true that the Presidential Records Act warrants that. And if we can go back for just a second to what Bill Barr said

— Mhmm. —

Bill Barr was drawing a very clear distinction between things that are arguably personal, things that the president himself or herself created. Right? I took some notes. I wrote this thing. I sketched this thing.

As opposed to a government document. And if we ever get around to talking about the difference between the Trump case and the Hillary case, that’s a highly relevant distinction.

I do wanna do that, but you raise the the point of absurdity. And speaking of absurdity, just one more of this. Judge Janine Janine Parro who amazingly still has a job at Fox News. She lashes out at Jackson. I think you’re gonna be hearing a lot of this.

In fact, somebody was asking me the other day, well, you know, Jack Smith, they can’t you know, I’m not gonna attack him there because, you know, he’s behaved with such integrity. And I said, that’s just naive. It doesn’t matter who you are. You know, if it was mother Theresa bringing the charges, you know, she would be she would be a legal strump it by the time they’re done. But here’s judge Janine giving you a flavor of the kind of sterical attempts to to smear Jack Smith.

And now what you’ve got is a loser prosecutor. Jack Smith who’s been slapped down by the United States Supreme Court in his in one of his prosecutions that if I were a lawyer, I would give up my law life since I’d be so embarrassed hiding under a rock. He’s the one who prosecuted John Edwards. He’s got a political agenda. And this is all over president of records act, which is Civil civil suit, a civil issue.

Okay. First of all, see the thing about judge Janine is like, did she listen to herself? Because he’s the one who prosecuted John Edwards is so it’s political. John Edwards was a Democrat. John Edwards was the Democratic nominee for vice president.

So if he is, in fact, this political hack, why would you bring that up?

So, of course, what these politicians are doing and what these pundits are doing is they’re just they don’t have a defense on the merits, so they’re throwing stuff at the wall. One of the problems when you start doing that, is you start saying things that contradict each other. And so here we have a clear example of what is one of the reflexive attacks on an investigation? The special counsel is partisan. He’s biased.

You know? Bob Mueller, a lifelong Republicans. All he’s best friends with Jim Comey. There’s always some argument you come up with. And by the way, Jack Smith not only did the John Edwards Casey did the Sheldon Silvercase, the sworn speaker of the assembly in New York.

So he’s got plenty of in his record of going after Democratic politicians. He is a tough prosecutor, but he doesn’t care which party you

Hey, folks. This is Charlie Sykes, host of the Bulwark podcast. We created the bulwark to provide a platform. For pro democracy voices on the center right and the center left, for people who are tired of tribalism and who value truth and vigorous yet civil debate about politics and a lot more. And every day, we remind you folks.

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I promise. Let’s just switch gears for a moment. Tomorrow is going to be the the surrender. We don’t we don’t know there’s actually a report out now that there can’t actually be an arraignment unless Trump can find a local attorney. For whatever reason, he’s having some trouble.

Doesn’t matter. He’s still gonna surrender. He’s still gonna be bumped. And but the headline on the Washington Post right now is Trump’s Miami Court date brings fears of violence rally plans. And and this is in the context of, you know, Trump summoning people, you know, see you in Miami.

He didn’t quite say, but it’s implied it will be wild. You haven’t really rashing up of the rhetoric you saw over the weekend. That Carrie Lake had to say. You know, you’re talking about, you know, gun owners you’re gonna have to come through. I mean, it’s it it is ugly out there.

And one of the points I made in in morning shots today was you’d have to be pretty naive after January six not to sense the danger here. You know, he’s pushed into a corner and he clearly wants to have some sort of a disruption. So I don’t know what he’s hoping. You know, not necessarily to delay the agreement because I don’t think that’s going to happen, but to create so much chaos around it that somehow this will cause the justice department to back down or the people will become disgusted. Like like, look what you’ve done.

You’ve created this massive civil war in in America. Let me just play for you. I mean, he’s spoken in Georgia and North Sarah Longwell, is you listen to this I have mixed reaction to this. Listen to his word, the language he’s using, which is incendiary, but and also listen to the tone, which we’ll get we’ll get to on on the other side. This is Donald Trump over the weekend.

We are a failing nation We are a nation in decline and now these radical left lunatics want to interfere with our elections by using law enforcement It’s totally corrupt and we can’t let it happen. This is the final battle With you at my side, we will demolish the deep state. We will expel the warmongers from our government We will drive out the globalists. We will cast out the communists. We will throw off the sick political class that hates our country.

We will roll out the fake news media. We will expose the rhinos for what they are. We will defeat Joe Biden and we will live ate America from these villains. Once and for all, we will liberate we’re gonna liberate our country.

After I take a nap. But you I mean, will. You have this fiery rhetoric we it will demolish and it’s like, that was a little low energy, man. I mean,

Okay. You that’s very funny, Charlie. But but let me come back on this.

Well, hopefully, actually, it’s not just me. Let me just read it. This is this is the the daily mail. Has federal indictment broken Trump viewers blast famously energetic ex president over low energy North Carolina speeches he faces decades in jail. He’s reading it through, and the language itself is, you know, I am coming.

We’ll burn it all down. It’s, you know, it’s really eye alone. And yet, it was like, oh, I don’t know.

Because what am I gonna

do after I finish reading? I was like, what do you think?

Yeah. Okay. So usually, I’m I’m obviously in our discussions, I’m the optimist and you’re the pessimist. But here, I’m gonna play the other way around because, okay, it’s low energy in the delivery, but I’ve seen what happens when Donald Trump tells his people that the system is rigged and it’s out to get them Yeah. So obviously January six was a warning that when Trump talks this way, it can lead to violence.

It it obviously did.

I agree. Okay.

So we’re we’re in agreement about that. But I wanna sort of make the argument here that when Trump stirs people up this way and says, you know, the deep state, basically, everyone in the government who doesn’t support me is out to get me and we have to stand up to them. That’s the first half of a very dangerous strategy. So the first half is to get people stirred up and really upset, get a lot of Republicans believing that the government is out to get them, and we have to do something. And that can lead to violence, obviously.

If it doesn’t lead to violence, even if it’s not actual violence, imagine at this arraignment, imagine people a mob of people showing up, people really angry. Okay? That’s only the first half. The second half is when these Republican politicians. They claim that they don’t support violence, and Lindsey Graham certainly did this during the second impeachment of Trump.

I don’t support the violence. I don’t support these people storming the capital. But we mustn’t impeach Trump, end the impeachment of Trump to end the violence. So these politicians are using the emergence of civil war, using the emergence of violence and saying, you, the government, mustn’t prosecute this guy, mustn’t impeach him in the in in that case, and now mustn’t pursue him in the documents case or these other cases because now that he has stirred up and we have all stirred up all these angry Republican voters, we could have a civil war if we do that. And they’re basically using that to undercut the rule of law.

I agree with you on this. I am really struck by the fact that it’s pretty obvious after January six, how dangerous this kind of rhetoric is. And you see, you know, out on social media, you know, people who are know, saying this is like an insurrection. This is like a coup. This is terrible.

This is this terrible crime. And you would think that this would be the moment when sober heads in the Republican Party would recognize they need to moderate the rhetoric, maybe dial down the temperature. I mean, they could urge the base. Hey. You know what?

Keep calm, carry on. Let’s trust the rule of law. Let’s trust the criminal justice system. Under our system, Trump’s innocent until proven guilty. He’s gonna get his day in court.

He’s gonna have all the protections of due process. Instead, they’re all throwing this kerosene on the fire. You know? Saying it. I mean, you have Josh Holly saying that the president in power can jail his political opponents.

Which is what Joe Biden is trying to do tonight. We don’t have a Republican anymore. We don’t have the rule of law or constitution. So he’s basically saying, you know, this is the fight for democracy. And we’ve lost the country.

This is the kind of thing that leads to it. Now alright. I’m gonna engage in some speculation here. Actually, this is not speculation. This is complete fantasy.

And you can rip me for this if you want. I’m talking to the listeners out here. Okay? I’m trying to imagine, because I think sometimes we have a failure of imagination And I remember having conversations on January fourth and January fifth. You know, asking, what could possibly happen?

What could go wrong? And I don’t think that anybody imagined that it would be as bad as it was. But now we have no excuse to be naive. So what if a mob assembles? In Miami.

And what if? And again, this is just complete you know, I’m this is this is fiction. I’m gonna underline this. This is I’m not making a prediction here. But what if?

What if this mob then attacks the federal courthouse? And the court proceedings are delayed at least temporarily. But there is a massive clash with police and and federal marshals. And as a result of all of this, five people die. What would the fallout from that be?

And I’m sorry we know what the fallout would be. We know that after a while, there’d be shock. There would be a lot of people saying this is terrible. But eventually, they’d get around to accepting it. The way they accepted January six because what I’ve described is really no different than what happened on January six.

And Donald Trump now is the dominant figure in the Republican Party, and the vast majority of Republicans are actually kind of okay with what on January sixth or have bought a revisionist history of it. So Donald Trump, it’s very clear that he really does think that these mass demonstrations and the potential of mob pressure is something that is to his benefit. And if he feels desperate enough, he will call upon it, and they will answer. And I’m sorry for people who think that you know that’s Trump derangement syndrome, but I’m just really recounting what’s already happened, that you’ve already accepted, you’ve already rationalized and asking, if it happened again, Why would anybody think it would be different then? Right.

Shirley, you’re completely off the rails. No. Okay. I I I can I can

Well, you we would have a replay of post January six? So you would have some republican politicians coming out and saying, you know, we never supported this violence and, you know, maybe somebody would stand up and say what Mitch McConnell said, you can’t ferment this kind of thing and then be surprised when it happens. At the same time, there would be a hell of a lot of people doing the Marjorie Taylor Green thing. Right? Going to the prison and saying, these are all political prisoners who were arrested in the, you know, Trump uprising.

Who shot Ashley Babbit? There’d be a version of that. Right? They all these so called law and order conservatives would be, you know, questioning whether the police had the fire on the crowd or whatever it was, you know, to cure gas. So, yeah, they would rationalize that.

Trump and his supporters would would use the mob in any way they could, and this may be a reach. But it’s part of a larger thing where they they try to generate an uprising as a substitute for having a point. It’s kind of an extension of Lindsay Graham getting angry and, you know, barking at the media. One of the Republican excuses, one of the Republican responses to all this evidence against Trump, for example, has been to say and that actually, this is coming from Trump’s own lawyer, Elena Haba, saying they’re trying to take your vote away. In other words, This case against Trump should be settled by voters in the election.

And so instead of being able to argue in court using evidence in front of a judge in a jury, we’re just gonna go and do what Donald Trump’s always done, which is to go stir people up, get them to turn out at a protest or out to vote And if we win that, then we win the whole case and we don’t have to win on the merits.

No. I think that’s exactly right. And, of course, this is, again, this this circular argument. Don’t charge him, you know, let the voter aside and then during the campaign, you say, well, look, he’s never been convicted of anything. Why wouldn’t you vote for him?

Right. I mean, if there was something. One of the big themes over the weekend was this is just like Hillary Hillary should have been indicted, you know, she used hammer and bleach to destroy hard drives, and we heard that over and over and over again. So help walk us through, Will. The differences between the Hillary case and Donald Trump’s case if there are any.

There are a number of distinct let me start off by conceding. The Hillary case is the closest case in terms of a disparate treatment.

Yes.

One of the key differences between them is the one that Bill Barr, just described in the clip that we played. Barr is saying the Presidential Records Act distinguishes between personal records and presidential records. So the classic thing is, as Barr said, a diary or note, something that you wrote. Mhmm. Right?

It’s not a government document or something you wrote. It may be about something classified. It may refer to classified information, but it’s not the government document itself. The Hillary emails that were deleted. Oh, this is Rich Charlie.

Part of what is in the indictment is a scene where Donald Trump

— I love this. —

tells his own attorney Right? That he wants the attorney to get rid of some unhelpful documents. And the way he does it is to repeatedly refer to Hillary’s attorney. And he says, I talked to this guy. He’s the one who deleted the thirty thousand emails, and they were about her going to the gym.

They were about her getting her hair done. They were about her scheduling. So Trump is conceding privately. Right? That the stuff that was deleted in the Hillary case wasn’t classified information.

But even to the extent that there were any Hillary Clinton emails about classified topics, they weren’t themselves government documents like a battle plan against Iran. Right? What Trump did is very different because there is no arguable way that these are personal. That’s what Bill Barr is trying to say. These are things prepared by the defense department, prepared by the intelligence agencies.

Right? There isn’t the same plausible argument that you can make in the case of the Hillary Clinton emails. And then there’s also the question. There are larger complicated things about protocols for when something like your emails are being requested by other government agencies and how your lawyers can go through it and whatnot. But the Trump case is just distinct for the nature of the documents.

And also, of course, you have the absurd thing of Donald Trump. Directing his age or move boxes out of the area that’s gonna be searched. It’s just obvious obstruction of justice.

And and the obvious hypocrisy, and there have been some montages the people who put together of of Donald Trump repeatedly saying, you know, how seriously we need to take classified information and secret information. This was a huge issue in twenty sixteen. When Donald Trump was running. And if you listened to the sound bites, it’s very clear that at least back then, he understood or pretended to care very, very deeply. About the abuse of this and, you know, wanted to lock Hillary up because she abused classified information.

And now here’s Donald Trump, you know, pretending he doesn’t understand it at all and that it’s completely trivial. And we now find out that he actually admired Hillary because he thought she had destroyed it. I mean, if only Richard Dixon had burned those tapes — Right.

Right.

—

what a surprise. I would recommend this to everyone. I think it was June of twenty sixteen, the press conference that Jim Comey held to explain why he wasn’t gonna charge Hillary. Right? This is the press conference.

Everyone said, Comey shouldn’t have held, and he shouldn’t. But we do have the benefit of that. And one of the things that he articulated was, I think there were four criteria there. For explained why he’d reasonable prosecutor wouldn’t bring a case. I would recommend everyone go back and look at those four criteria and apply them to the Trump case because several of them clearly apply in this case and didn’t apply in that case.

Alright. How worried are you about the judge? Aileen Cannon.

I mean, I’m not happy that the case went to her because she’s obviously already issued a ruling and the build up to this and the procedural what was it about whether they had to go to a special master. And so she’s demonstrated a significant pro let’s call it pro presidential ex presidential bias, if not a pro Trump bias in favor of the guy who appointed her. So that worries me. But on the other hand, Charlie, don’t you think this will make it much more difficult if if Trump does get convicted for the right to argue that the judge was biased?

Yes. I agree with that. But it’s not just that she’s biased that she’s pro Trump. She is willing to twist the law to protect him. She really is still, you know, within that manga movement, and she now has a chance to become a great manga hero.

So it’s not just that she’s biased. I think that, you know, her let’s say that her jurisprudence has been questionable, which I’m dancing around saying that She’s just a bad judge. She’s terrible. I mean, her stuff is shit. And the eleventh circuit I mean, keep in mind, the eleventh circuit is a very, very, very conservative appeals court.

And, you know, when her first ruling went up to the eleventh circuit, it went to, you know, three very, very conservative judges and they just slammed her. I mean, they just threw it back. And you would think that a normal person would be shagrined by this, would be shamed by this. But she did it again. And so this same court had to slap her down and overrule her twice, not just once but twice.

So anyone that thinks, well, she learned her lesson there, no. No. She’s probably sitting at home, you know, watching News Max and OAN, you know, watching social media. I’m I’m sorry. Now I’m being perhaps unfair to her.

I think if you made a list of people who the legal community would say, this is an outstanding and respected federal judge. And then you made a separate list of the most questionable federal judges or the least qualified federal judges, she would fall on the second list. And that I think is the real problem with the venue move moving from DC to to South Florida because in DC, you have a lot of, you know, very highly respected talented judges. And what do you get in South Florida? You get one of the nation’s I mean, most almost laughably incompetent judges.

So I don’t know what can happen there.

Yeah. I mean, obviously, it could be a problem. The scenario that I’m thinking about is before we even get to discussion of the evidence in this case, there could be like a motion, for example, up by Trump’s defense to exclude any evidence that was gained by forcing Trump’s lawyer to testify. Right? That would be a problem.

A lot of what’s in the indictment is from Evan Corcoran based on that. And if judge Cannon wants to chuck the case on that basis now, that’s getting appealed up the chain. How long does it take? Does that end up in supreme court, does it end up there before we get to any trial? So that could extend the timing of this thing a lot.

I remain naively optimistic. And my optimism isn’t entirely naive because, of course, Trump’s Supreme Court refused to get involved in his election challenges. And many many Trump judges, by the way, upheld the rule of law and the facts in in the election challenges. I remain hopeful that as this goes up the chain, you get to judges who although they are conservative, they’re not you know, blindly trumpest and that eventually, Trump will lose those procedural challenges to this case.

Well, this may surprise you, but I actually agree with you on that. However, I think Canon can do tremendous damage because she has now the cover of all of these right wing pundits and politicians if she were to throw out the case or if she were to, in some other way, imply that it was illegitimate. It really supercharges a lot of that denialism. Look, I think this is a rock solid case. I think they do have him dead to rights.

This is one of the most dramatic cases and just in terms of all of the evidence they have making an absolutely clear And yet, we’ve seen the ability of the right wing ecosystem and the Republican Party to be in denial. If a federal judge provides them some more ammunition. We’re back to this two universes here. So I think a lot of it will be the framing of it. I mean, I agree.

The best case scenario is that she does not try to interfere because she knows that a spotlight’s on her. The worst case scenario is she doesn’t care because she has a lifetime appointment. And she really really wants to be a MAGa superstar. I mean, maybe she thinks this is how she’s gonna get on the Supreme Court in the second Trump term. I have no idea.

And that she, in fact, decides to posture from the bench because that could do a lot of damage to all of this.

But to your point about this being a solid case, I mean, I think it’s gonna be very difficult for her to make this go away for the reasons you just articulated

— Fair. —

the New York case, the Alvin Brad case. The prosecutor is trying to cobble together different charges in a novel way. To get Trump. You can argue whether that’s, you know, allowed or not, but the point is it was a stretch. It is a stretch.

What’s so powerful about the Mar a lago case, about the classified documents case is that these are charges that get prosecuted all the time. Right? Anyone in the military, anyone in the intelligence establishment, And anybody who treats documents the way that this certainly anyone who would deliberately manifestly withholds documents when the government asks for them of a classified nature of a secret nature. These people get prosecuted. They get stiff sentences.

And so it’s really gonna be hard for judge Cannon. To get Trump out of this. There isn’t some well, this is a novel legal theory, a kind of defense that a judge can use to clear him. So I think she’s got her hands full, Charlie.

Well, I hope so. And of course, we need to keep reminding ourselves that we’re only halfway through of this whole process. We still have the January six case out there. We still have Fanny Willis in Georgia. I think Robert Costa was saying he was talking to some Republican consultant who said he didn’t think that this charge would make reference that Republicans would rally around, but that might change when the Georgia charges came down, which was such bullshit because no.

If you’ve accepted everything up until now, you’re gonna keep accepting it. But what is interesting? And there’s that tendency. And, you know, obviously, we were keeping an eye on what the republican base is doing. But there’s a tendency to miss something else that’s going on, which is the gap between Republican voters and the rest of the country.

There was a very interesting graphic that I put in my my morning shots, newsletter. It’s from the CBS poll. And people were were asked the question. So do you think that there’s a national security risk of Trump kept nuclear and military documents? Only thirty eight percent of likely Republican voters said that that was a national security risk.

Eighty percent of the rest of the country thought it was a risk. You you had this ABC Ipsos poll showing that sixty one percent of Americans now think the charges in each indictment, including the New York indictment, are serious. Okay? So that’s up from April. Back in April, it was fifty two percent.

Now it’s sixty one percent. Among Republicans, it went from twenty one percent to thirty eight percent. Okay. So thirty eight percent of Republican voters are saying that the charges are serious. Now we do know there are voters who would vote for Donald Trump even if he was a convicted felon.

Maybe I’m gonna be the optimist now. Because this is such a detailed rich case. It is such an evidence rich case. It is such an ultimately understandable case. That I think it gets worse for Trump rather than gets better.

And the reason I’m saying this is this is Monday. It’s only been since Friday that the document was unsealed. It takes a while, I think, for information to percolate out there. Maybe the tribal lines will just harden up But maybe as people, you know, hear more of these details, and they hear from people like Bill Barr. And they you know, Chris Christie is saying, You know, he found the Trump indictment devastating.

And I know we have a disagreement, you know, internally about Chris Christie, but You know, when you start to have these voices coming from inside the house, I just think it’ll be interesting to watch whether or not public opinion moves. And and it won’t move in a big huge swing, but at least incrementally, which we’re already seeing.

Yeah. So the CBS poll and the ABC poll, which both done since the indictment very interesting stuff. The thing that’s totally horrifying, of course, is that in the CBS poll, this is of Republican primary voters. Twice as many said the indictment changed their view of Trump for the better as for the worse.

That’s just the middle finger. You know what that is.

You know? Okay. Okay. Let’s set that aside. Let’s go to your larger point about the change over time.

So first of all, the increase in Republicans being concerned about the seriousness of the charges. One question is, can this affect a Republican primary? What was the number twenty one to thirty eight?

Yeah.

At some point, if the numbers go up, you start to create inside the Republican primary electorate, a constituency that might be enough to push somebody ahead of Donald Trump to get that nomination. So that’s one scenario. The other thing though is This is also from the CBS News poll. They asked people, if Trump is convicted, should he be able to be president? If he’s convicted in this case.

So Republican primary voters said by eighty to twenty, yes. Right? They’re saying, we’ll nominate them anyway. But then, the general electorate, the general respondents, it was fifty seven forty three note. That’s fifty seven percent of the people being polled are saying this is disqualifying.

Now that creates a second argument inside the primary that Trump can’t get elected. But even if he does get nominated, despite the electability concerns. I guess Charlie, I’m weirdly comforted to know that around fifty seven percent of people are saying that it would be disqualifying. I don’t know if they would actually vote that way, but that would at least protect us.

That’s a big number. Yeah.

It would protect us from a second Trump presidency, which is to me, the most important thing.

That I don’t wanna take away from your joy at all. But these polls also show that his approval ratings down to thirty one percent Donald Trump. Which sounds good until you also see the Joe Biden’s approval ratings down about thirty one percent. And I guess that’s the concern. You can see that that America is basically saying, please do not make us go through a second Biden Trump election, except that’s what we got.

I mean, I I think that’s where we’re headed. I mean, we may not want it, but that’s that’s the prospect. And I just keep wondering, the Republican party is not made up of complete idiots. Okay? Can we just stipulate that.

And they have to understand that right now, they would be in a relatively good position if they nominated any one else other than Donald Trump. They are going to nominate perhaps the only candidate who is is regarded as disqualified by a pretty strong majority of Americans. I mean, that’s an amazing moment in American politics.

And isn’t it bizarre, Charlie, to keep hearing Republican politicians claiming that the Biden Justice Department. Right? There’s always doesn’t matter that it’s a special counsel. It’s well, Jack Smith works for Merrick Garland. And Merrick Garland works for Joe Biden.

Joe Biden wants to take out Donald Trump. Really? I mean, because as you just pointed out, the best way for Joe Biden to get reelected would be to let Donald Trump coast to the nomination and then take him on in a general election. If Biden actually succeeded, you know, in taking out Trump, Somebody else would get the Republican nomination, and I thoroughly agree with you that person would have a much better chance of unseating Biden than Trump does.

They would. The other thing about this issue that I think is interesting. And I’m not in the messaging business, but I’m just going to suggest that This is another one of those issues that could drive a wedge if it’s handled well between Donald Trump and some of his base, including in the military. Because, I mean, the case should be made. Do you understand that if any of you who are fighting and defending the country behave this way?

You know what would happen to you. And yet here is somebody that wants to be the commander in chief, should he be held accountable? Also, How do you feel about being in the military and putting your life on the line to defend the country? Knowing that these very sensitive military secrets are being handled with this cavalier attitude by the man who wants to be the commander in chief. I don’t know whether that makes a difference.

Maybe no evidence, maybe no arguments make a difference. To anyone anymore because it’s all about tribal loyalty. But I think that particularly people within the national security world or within the military, They know what the rules are. They know why the rules exist. They know how serious the rules are.

And they know what would happen to anyone else they behave this way. And if you are a if you’re a major or a captain in the US army or the air force, and you have these kind of documents, you know, in your house you know, stuffed in your pants. And the government comes and says, you need to give them back right now and you hide them. You know what’s going to happen to you.

And I don’t think anyone would argue it shouldn’t happen to you. And it’s been a talking point of Republicans for days now that everyone should be treated equally. We have one set of laws as Jackson says, Donald Trump said it himself. One of those quotes I think it’s in the indictment was from what August of twenty sixteen, and he says, I’ll enforce the laws to protect classified information. He says, quote, no one will be above the law.

Yep. Yeah. Yeah.

And yet, The argument we are now hearing from many of Trump’s defenders goes exactly to your point about, you know, anyone in the military would be thrown. In fact, people in the military have been executed have been put in jail for this kind of thing. But the president is different. We are now hearing. We’re now hearing from these so called national security conservatives that the president has the presidential records act, that he can declassify anything, that the rules that apply to other people don’t apply to him.

And to be clear, there are differences in the sense that, you know, there are rules written out about the presidency that aren’t written out for other people. But in this case, We have offenses that have been and are prosecuted against people in the military, and these so called conservatives are claiming that Donald Trump should be treated differently and should be exempt from them.

Going back to Lindsey Graham, I just think there were a couple of tells though is, you know, the fact that he keeps hiding behind what most Republicans think. And then And then the way his voice kind of breaks and everything, you know, when you’re really confident of the argument you’re making, you can be deliberate. You can be calm. You can be rational. Right?

But when you know that you are peddling — Mhmm. — no hot on fire bullshit, you’re going to be a little bit edgy. And so listening to Jim Jordan, and listening to Janine Piro, etcetera, which God knows why we’re doing that. But, you know, I just get the sense they’re embarrassed. You know, there there’s a little level of stereia, which may actually be dangerous.

I mean, this may not be a good thing because when people are shoved in the corner and they’re not able to make a coherent argument as you pointed out, they kind of lash out. And that’s the real danger. You know, what does a cornered Donald Trump? What does a cornered maga movement do in something like this. And it’s very obvious that Trump’s gonna keep ratcheting it up, keep ratcheting it up, know?

And then eventually after his nap, he’s gonna have a little bit more energy when he gives the next page. And you are right. No. That message comes out. The tweet that said, you know, be there on January sixth.

It will be wild. He may have been half asleep when he wrote it, but the words were out there and they were heard and we know what happened.

Let me just pluck at Lindsay here for a little bit, because in that interview where he loses his cool at Staphanopoulos, he’s throwing stuff at the wall again. So there are three parts of this interview, little bits I just wanted to flag. He says about Trump that he’ll argue the Presidential Records Act. That as president, he had these rights to do what he wanted. Right?

And Graham’s claiming that the supplies even after Trump left the presidency, which is ridiculous. The second thing is Graham says, he complains Stephanopoulos representing the media, representing the left, whatever Trump Trump haters, he says, you impeached him after he was out of office. Meaning, after he had left the presidency. He’s just a humble private citizen. You persecuted this poor man who was just trying to leave public life.

Then the third thing Graham says is that, quote, the leading candidate for president of the United States on the Republican side is being prosecuted by his opponent. So now Trump having returned from private life and running for president again, now you can’t prosecute him because he’s a candidate. So the Republicans have every stage of Donald Trump’s life covered. He’s you can’t indict the city president, then because he’s president, he’s got the he’s got special rights under the presidential records act. Then he’s left, but he’s a poor victim.

Why prosecute the man? Then he’s coming back, and therefore, it’s election interference. No matter what happens to Donald Trump, no matter what he does, no matter what status he’s in, they’re going to claim that he’s exempt.

You know, you had to make a diagram of that and then do a whiteboard presentation. I would actually pay to see this. Will explains how the circular logic Bulwark. And it is a hermetically sealed, you know, circle. Right?

Amid of all of the chop logic Will Saletan. Thank you so much for joining me again. Gonna be a heck of a week. Isn’t it? Wow.

Thank you, Charlie. We’ll do this again next Monday. Talk to you soon. Alright. And thank you all for listening to today’s Bulwark podcast on Charlie Sykes.

Moving back tomorrow and we’ll do this all over again. The Bullbrook contest produced by Katie Cooper, and engineered and edited by Jason Brown.