Did the FBI Get a Pass on Jan 6?

Donald Trump still faces ninety one felony charges, but Republicans at the House of Representatives have decided to engage in a little bit counter programming, beginning an impeachment inquiry into president Joe Biden. Meanwhile, it’s been a week of a lot of motions, hearings, and orders, and we’re gonna catching up with all of that in a moment. But first, let’s talk a little bit about Mitt Romney up for that. Of course, it is Thursday, which means I’m joined by Ben Whitis editor in chief of Law Fair. Ben, yep, for talking a little bit, about Mitt Romney?

I am excited to talk about Mitt Romney.

Let’s just start with some of the revelations in that, rather extraordinary, Atlantic article by McKay Copins, which maybe I’ve become too cynical and jaded, but it’s always interesting to me. To read about a politician who is actually introspective who, you know, thinks about things like you know, history and the fragility of civilizations and death and the verdict of posterity and all of those things. And apparently, He, he would’ve used a crowbar on old file cabinets to look at old notes that he’d made and just turn them over to Mckay. Mckay Copins. You know, I wrote in my newsletter today that he’s leaving the Senate pretty much the way he came in.

He he was the conscience of the Republican Party which made him a very, very lonely man. And so here is this former presidential nominee, former governor of the state of Mass Tucis, one term United States Senator, heading off to join Liz Cheney and Adam Kinzinger in in exile And pondering, what the hell happened to his party? So rear random thoughts on, on Mitt Romney, deciding not to run for reelection, Ben.

Let’s start with the big one, which is this is a person who made a significant contribution. And it’s not the contribution that lots and lots of people like you and me would have asked him for. We all wanted more it’s a great deal more than any of his colleagues in the Senate have done. That is his colleagues in the Republican caucus and the Senate.

Let me ask you this, Ben. What more would you have liked him to have done? He’d be he was the first United States senator in history devote to him teach a president of his own party, and he did it not once, but twice.

Right. So I don’t first of all, I I I I mean this in praise, not in criticism. You know, if you listen to the bulwark podcast or the, next level on a regular basis, you often hear people asking, you know, where was Mitt Romney on this vote. Right? And, you know, there were a lot of things on which he was criticized for siding with Trump, right, particularly on policy matters, and people always noted his voting record you know, unlike Liz Cheney, he did not devote himself single mindedly to the war against Trump and all his works in the Republican caucus, which is, by the way, one reason, he had more longevity.

Right? He was more diverse in his in his interests and consequently less single mindedly obsessed. And some people found that frustrating. I wanna say in his praise, first of all, the longevity is, you know, partly a virtue. Right?

He was elected to a six year term. He has been an effective senator. He has been a key vote on important matters, including in that first impeachment being the only or one of the only Republicans to vote for conviction.

The first one, the only one. Yeah. He was the only one. Yeah.

Right. And that, by the way, made that impeachment conviction vote of a bipartisan thing, which was symbolically quite significant I thought a number of his speeches have been really terrific. And so, look, this is a person who made a significant contribution and that’s the big picture. And I think he, at a time, when a huge number of people kept quiet, never kept quiet about what he thought on the big picture. And And that was part of his running for that office.

It was part of his service in that office, and it’s part of his departure from that office.

I mean, I know you’re you’re being positive, but when you think about how really unusual, just run the tape back to the mid two thousands and try to, you know, think about what role would Mitt Romney play? You know, it was certainly not inevitable that Mitt Romney would be the the conscience of the party, especially when we’ve seen many of these other invasions of the body’s stature, so many other Republicans caving in, and Mitt had his stiffness and his sort of, you know, wonkiness and it was Well,

and also there was a time that we thought of Mitt Romney as the opportunist candidate. Right?

He was

he was the guy who flipped flopped on abortion rights in order to be the Republican nominee. He, you know, became I think his words were severely conservative when he had been quite a moderate Republican governor. He was somebody who people did not think of as in the language of, like, the conscience of the party. He was, Right.

Not back then. No. And you’re right. You know, all of those years, and I’m thinking back on all of that, he was not really comfortable in his own skin. He was not comfortable in the role that he was playing.

So The last few years, I think, is when he really came into his own, a man in the mids in his mid seventies. And you can tell that the the level of his conviction about what Donald Trump represented. I mean, he he made the warning back in twenty sixteen and a rather extraordinary speech. It was, of course, too late to change things. Mean, I guess, you know, when I say that it’s unexpected, it’s like, oh, you think your life is going to have a certain narrative.

You think this is the meaning of my career. And then at the end of it, you look back and you go, no. All of that was kind of a run up to this. And what is also interesting is that he’s clearly even though he’s leaving the Senate, he’s not done, because now now comes the verdict of history. And clearly, he has a story to tell.

He’s trying to figure out what he did, his own role. He’s got thoughts about the fragility of of, you know, Democratic institutions. And so this is kind of his moment. And, again, I I never really thought of him as a particularly strong and courageous leader But I think that a lot of us underestimated that whole Mormon thing, and please don’t misunderstand me about this. But the intensity of his integrity and the focus on doing what is right that I think we kind of sometimes we think it’s a little corny or we roll our eyes about it.

But then you see him sitting next to people like Josh Holly and Ted Cruz and Ron Johnson and JD Vans. And you realize, you know, Oh, yeah. That’s what a good decent man looks like. That’s what a statesman looks like. That’s somebody who truly goes into public service because he wants to do good things as opposed to the performative bullshit that has now become the norm in the United States Senate So I think it’s also just the underappreciated virtues that he brought that has brought him to this moment.

Yeah. So I would agree with all of that. I’d put a little asterisks on the Mormon thing just because his co senator, Mike Lee, also a member of the church has shown none of the same virtues. So I so I I don’t wanna over state the the religious dimension of it. I do wanna focus on the decency dimension.

Yeah.

I forget who it was who said of Gerald forward when he died, everybody always used to say he was a decent man, but, and the gravamen of the sentence would come after the but. And that was wrong. The relevant part of the sentence was before the bus. Exactly. And, you know, that’s actually the way I feel about Mitt Romney.

That at the end of the day in a society in which decency is a depleting commodity that is ever more valuable, the fact that whatever your criticisms of him, they come after the but. He is a decent man. Whenever the war becomes a war for or against decency, he is generally on the right side of that. And that is more important than any criticism one ever might have of him.

When I was, writing up my newsletter this morning, I was going over my notes. And and I realized and I think I’d forgotten this. The very first piece I wrote for the Bulwark when we founded it back in January two thousand nineteen was about Mitt Romney. And the headline was what Romney exposed about late stage trumpism. I thought it was late stage back then, but, you know, who who knows.

You remember he coming into office. And the first thing he did was to write this op ed piece for the Washington Post, you know, saying that to a great degree, A presidency shapes the public character of the nation, a presidency unitas and inspire us to follow our better angels. I mean, it was a shot at Donald Trump. What I thought was so interesting back then was back in the before times, the whole argument would have not have been very controversial. It was kind of a boilerplate, you know, restatement of what conservative, you know, claim to believe about character for decades.

But what was really interesting to me was the blowback from Trump supporters attacking Mitt Romney for even suggesting that character was a factor that it was not just about policies and and appointments. And I wrote at the time, you know, Mitt Romney had performed a useful service because he brought out this reaction and he expose the extent to which the acceptance of Trump’s character hardened from tactical improvisation into habit and this habit has now become full blown intellectual justification. So I think that he was a little surprised by the fact that this restatement of conservative principles was met with a kind of blowback, but it was kind of an indication of where we’re going. And And the thing about Mitt Romney and I’m sorry to go on about him is that, you know, time and again, he was the only member of the Senate. Who would stand up and call Donald Trump out.

And and I guess the question now is, you know, how will history remember him? And and I know that This has become very unfashionable in Washington. It reminded me of Ben. Was it Bill Barr who was asked about his legacy? And he says he doesn’t care about that be easily be dead anyway?

Which wasn’t that a which is a strange sort of, you know, flex. A lot of these guys obviously care about winning the next news cycle. They don’t care about history. I do think there’s a chance, a very good chance that Mitt Romney is going to really stand out in the same way that say Margaret Chase Smith, who denounced McCarthy when everybody else was cowering in the cloakroom, the way that she is remembered by history. I think there’s a very real chance.

That Mitt Romney’s role is going to look a lot better than shall we say Paul Ryan’s or Mitch McConnell’s or Josh Holly. What do you think?

I think that’s the wrong standard.

Okay.

Because those guys are going to be remembered as flaccid capitulators in the face of evil. I suppose so. Right. And and so I think History will be extremely unkind to them, and it will not be extremely unkind to Mitt Romney. The question, and I think the is whether it will remember Mitt Romney as a kind of well meaning, but ultimately ineffectual flailer.

Yeah. Right? Who said the right things when it mattered cast, some courageous votes, but ultimately was completely ineffective. Or whether it will remember him as somebody who planted a very principled flag on the most important issue of the day, he did not prevail on that. He got kind of run over by the stampede of history, but the planting of that flag was important.

There’s a group of people in the Senate. Jeff Flake is one again already mostly forgotten. Bill Cassidy to some degree has a claim on this. And but Mitt Romney has a certain pride of place among these.

Got it.

And unlike you know, Ted Cruz, who said, you know, vote your conscience at the Republican convention and then seemed to have misplaced his You know, he really did never waver on the most important issue of the day. And so I think there’s an interesting question whether he will be remembered sort of along with Jeff Lake as somebody who sort of ineffectually waved his hands or whether he’s a kind of closer to Margaret Chase Smith or or from a different era, a William Lloyd Garrison, right, who’s somebody who was a fixture of what in his time was a losing cause.

I think you’re right. And I and I do stand corrected there. And and I think that’s one of the things that we’re seeing right now is that he clearly is thinking about this verdict of history, which is why he is cooperating with this book and speaking out in the way that he is. Because I think he does understand, you know, that history is written by the people who write the history. Right?

I mean, it’s like he needs to make this case. And by the way, Couple of the passages from McKay Copin’s article really stood out to me, including his fixation in even his obsession about historical patterns And, Cappen tells a story about how Romney shortly after he moved into his senate office, hung this, big tangular map on the wall. It was his Rand McNali histo map, and it attempted to chart the rise and fall of you know, the world’s most powerful civilizations through four thousand years of human history. And he writes, when Romney first acquired the map he saw it as a curiosity, But after January sixth, he became obsessed with it. He showed the map to visitors, brought it up in conversations and speeches more than once, He found himself staring at it alone in his office at night.

The Egyptian Empire had reigned for some nine hundred years before it was overtaken by the Assyrians. Then the Persians, the Romans, the Mongolians, the Turks. Each civilization had its turn and eventually collapsed in on itself. Maybe the falls were inevitable, but what struck Romney most about the map was how thoroughly it was dominated by tyrants of some kind, pharaohs, emperors, Kaiser, kings, direct quote here. A man gets some people around him and begins to oppress and dominate others.

He said the first time he showed me the map. It’s a testosterone related phenomenon, perhaps. I don’t know. But in the history of the world, that’s what happens. America’s experiment in self rule is fighting against human nature.

And then there’s this quote. This is a very fragile thing he told me. Authoritarianism is like a gargoyle lurking over the cathedral ready to pounce. And there’s a man who is looking at this the broad sweep of history and recognizing how fragile and contingent what we have thought of as our sort of exceptional immunity from history.

Yeah. I so I wanna say first of all that it amazes me that so many of his colleagues don’t think about it this way. Right.

Okay. I agree.

Yeah. To use the one you’re sort of obsessed with Paul Ryan, he genuinely does not seem to understand that he’s not one of the good guys. And that you can’t be the speaker of the house and focus on well. I can get some tax cuts out of this and some sort of regulatory reforms. You know, you are at some level confronted, not even at some level, pretty directly.

By the problem of authoritarianism and evil. And if you’re not standing against that as a political figure, you are enabling it. And in a hundred ways, Paul Ryan enabled it and doesn’t seem to understand that and seems to sort of make a kind of fetish of the times he put a stop on something or made something not happen or

— I think that’s true. —

ameliorated something. And then leaves to go beyond Fox’s board of directors, you know, to help cover for defamation of dominion voting systems. And Shay Moss and Ruby Freeman, and never seems to take a step back and say where am I on that map? Right? Am I the guy next to some Kaiser who’s enabling the, oppression of people, or am I part of the defense of that fragile thing.

And I find it unbelievable that that it’s a sort of singular thing on Mitt Romney’s part that he has that map on the wall, and he’s thinking about it in big picture terms.

This is exactly the reason I’m bringing this up because it is single. You would think that this would be rule. And for a guy like Paul Ryan, who is very intelligent, and, you know, has has had time to think about what happened to him. He paid a tremendous price about it. And yet you’re right.

And I, you know, wrote that open letter to him in politico saying, you know, if not now, then win. You know, think about what is your legacy you know, what are you, you know, keeping your powder dry for if not this, if not this moment? And in this Romney book, though, this is a pretty devastating anecdote. So tells the story after he decided very reluctantly as it turns out to vote to, convict Donald Trump for trying to shake down the president of Ukraine. He was the only Republican senator to vote to convict.

He was the first senator in a US history to vote convict a president of his own party. So the word gets out apparently leaks out to Paul Ryan, that Romney is gonna do this. Ryan then calls him Calls him on the phone to try to talk him out of it, to lobby on Trump’s behalf. So, McKay copies writes, Romney had been less judgmental of Ryan’s acquiescence to Trump than he’d been, of most other Republicans. He believed Ryan was a sincere guy who’d simply misjudged Trump, but Here was Ryan on the phone making the same arguments, Romney had heard from some of his more calculating colleagues.

Ryan told him that voting to convict Trump would make Romney an outcast in the party that many of the people who tried to get him elected president would never speak to him again and that he would struggle to pass any meaningful legislation. Ryan said he respected Romney and wanted to make absolutely sure that he’d thought through the repercussions of his vote, Romney assured him that he had and said goodbye. Wow. So there you have Paul Ryan. He’s already out of power.

He’s not speaker. He’s got nothing on the table. And he’s lobbying, and he’s whispering in the ear to Mitt Romney, don’t show the kind of courage that I failed to show. You should make the same calculation that I and other Republicans have made again and again and again. And I had to say that it says somebody that’s known Paul Ryan for years.

That was one of those Oh, god. Moments just reading that. But you’re right.

It kinda tells you everything. It’s that one of these people is the kind of person who has that map on his wall and ponders it, and the other is not.

Yeah. The other is thinking like, okay. I gotta go to the Fox board meeting, and I certainly don’t wanna have answer questions about this. Okay. So Going back to now our theme with the Trump trials, there is a relationship because there’s a lot about January sixth and what went on.

And he tells the story of a text message that Mitt Romney sent to Mitch McConnell a few days before the violent attack on the Capitol. This is what Romney wrote. And again, imagine you’re Mitch McConnell and you get this text. In case you have not heard this, I just got a call from Angus King, who said he had spoken with a senior official the Pentagon who reports that they are seeing very disturbing social media traffic regarding the protest planned on the sixth. There are calls to burn down your home, Mitch, to smuggle guns into DC and to storm the capital.

I hope that sufficient security plans are in place, but I am concerned that the instigator, the president, is the one who commands the reinforcements, the de see in capital police might require. And then Copins notes in one very short sentence, McConnell, never responded. So that’s stunning on a whole number of levels, but it also does raise the question. You know, How did law enforcement and how did people like Mitch McConnell and others and Nancy Pelosi? How did they not see what was coming?

How did they not see what Donald Trump was unleashing on them?

Well, so first of all, I think a bunch of them did see what was coming. And Romney’s note is getting a lot of attention because it was sent directly to Mitch McConnell, but he was not alone And in fact, anybody who was following social media carefully in the days before January six knew that there was gonna be an attempt to storm the capital because there was a trending hashtag that was hashtag storm the capital. I remember the night before this is the fifth that this is back when I used to do this daily live show on YouTube in lieu of fun. We had a conversation with, it was me and Steve Vladock. I think maybe Pete Struck was there.

And we were talking about whether there was going to be an attempt tomorrow to storm the capital. And we all got one big thing right, which was that they seem to be gonna try it. We also got one big thing wrong, which was that the Capitol Police were very prepared for this sort of thing, and they were very unlikely to get very far with the effort. But that there was gonna be an effort to storm the capital was available anybody who wanted to know it. And I say that as somebody who, you know, literally contemplated it in public on January fifth.

And this brings me to a hobby horse of mine that has bothered me ever since then, which is that the FBI has gotten a real free ride for frankly not telling the truth about its intelligence failure in this regard Chris Ray and Jill Sandborn, who was the deputy director or the assistant director for National Security, went up to Congress, and You know, set a bunch of things that I think are very questionable in terms of the FBI’s preparedness and its authorities in defense of their organization’s performance in the run up to January sixth. And nobody calls them on and why does nobody call them on it? And I I think there’s a bipartisan agreement to let the FBI get away with this. And the reason is that Republicans wanna pretend the whole thing didn’t happen at all. And Democrats wanna focus on Donald Trump.

And I agree with the focus on Donald Trump, by the way, but there are still there are still institutional failures that let it happen. And one of them was the failure to read social media and create operational plans in response, and that was fundamentally a Bureau failure.

Alright. So I wanna come back a little bit later. I wanna loop back on the Republican counter programming on Joe Biden, but since this podcast is devoted to the Trump trial, let’s talk about the Trump trials for at least a little while here. So just this morning, as you and I were beginning to record this podcast, The judge done in Georgia has ordered that both Kenneth Cheesboro and Sydney Powell will be tried separately. He did break them up.

But he did not separate them from one another. What is your take on this? What is the significance? Because clearly, it was in funny Willis’s interest to have all nineteen defendants tried at the same time. So how does this affect your case that Cheesboro and Sydney Powell go first?

Right. So first of all, why did he separate them? And the answer is he separated them because they are invoking their speedy trial. Right? Which means they are unless something intervenes gonna go to trial next month, and everybody else is objecting to going to trial that fast.

And so there is a kind of irreconcilable divergence of interests among the defendants And they also wanted to be tried separately from each other. He’s denied them that. So She now has a trial of two people that is going to start next month. And then a trial of seventeen people, including the former president, which can start at, a more convenient or more relaxed trial schedule given that there’s another reason why these guys had to be severed from the rest which is that there is still an ongoing federal court fight over whether to remove the larger case from fault County Court into federal court. That, you know, now has been decided by the district court, but is gonna go up probably to the Supreme Court.

For resolution. And given that these guys have invoked their speedy trial rights and need to go to trial next month, there’s no way that’s gonna be resolved in time to do that. So that’s why they’ve separated it. What does it mean? It means that Fannie Willis has to present what she imagines to be a four month trial twice, at least, assuming nobody else gets severed.

That means she’ll have to present it once as a sort of practice run with Ken Cheesebrow and Sydney Powell, and then she’ll have to present it again. So this is actually, bad news for her because anytime you present a case once, you gotta drag all the witnesses in if there are any discrepancies between the way the witnesses testify the first time and the second time, that gives the defense some material to work with. They also, you know, frankly get a real preview of the case because it’s gonna be presented the first time. Now one thing that is important to remember here, of course, is the fact that a trial is scheduled does not mean that it happens. Right?

You could imagine one or both of these defendants pleading out. Although these two strike me as two of the defendants likely to plead out for reasons we can talk about if you want.

Alright. So since you and I spoke last week, we had a rather unusual development, that release of the full report from the special purpose grand jury that’s been more than seven months in investigating the efforts to overturn the election. And Your colleague, Anna Bauer laid out over at law fair, the document is, of course, you know, less traumatic than the indictment, but it includes the list of charges that the special grand jurors recommended against the long list of possible defendants, which Fani Willis, you know, did not feel compelled to actually indict. Now this just make the note. Ben, this is very unusual, isn’t it?

To see the notes from a grand jury to hear the names of people who were investigated, but not indicted. This is not the way it usually plays out with grand juries. Correct?

Well, it it’s not the way it ever plays out in the federal system.

Yeah. The federal system.

And to give you an example of how unusual it is, a few years ago, some colleagues and I decided to try to get the federal grand jury’s report to Congress from the Watergate era, the actual impeachment referral that special prosecutor Jaworski sent up to Congress about Richard Nixon.

Mhmm.

And this had been undersealed for, you know, fifty years because of federal grand jury secrecy, we went to court and finally got it unsealed. After many, many, many decades at this point, that’s federal grand jury secrecy. Georgia grand jury secrecy is a whole different animal, and it’s much more relaxed. And there’s a whole lot of things that are presumptively protected by federal criminal law at the federal level that are public in Georgia, one of them is the names of grand jurors, which is mind boggling to me because it really involves the safety

of people who

get dragooned into court service. Another one of them is special grand jury report which, become public in the Georgia system as a matter of something close to routine. And so We have known that this report was gonna be public at some point since the day that special grand jury was convened because that’s the way the Georgia system works.

So let’s just talk about some of those names that popped up in this report. I mean, obviously, there were, you know, the charges against the current defendants, but The list of people who are not indicted awfully interesting, Lindsey Graham, Michael Flynn, former senators, David Purdue, and Kelly Leftler. And Also, some of the other accounts that were not actually charged. For example, you know, during that Brad Raffensberger called the special, grand jury, had recommended charging Trump with influencing witnesses criminal solicitation to commit election fraud, election interference, and making false statements. And it turns out only one of their recommendations actually made it into the final indictment.

Trump was charged under the statute that prohibits making false fictitious or fraudulent statements. And again, among those allies who weren’t charged, you know, Graham Flynn Purdue left flir. It looks like tell me what your take is that they might have avoided prosecution because, you know, while a majority of the jurors voted Charlie Sykes. There were a lot of no votes. And was this a signal to the the DA that, hey, you know, these cases might result in a hung jury or we might have a little bit more time.

Give me your take on on that. Seeing the votes of the grand jurors. Like, should we indict Lindsey Graham on a felony? And the majority said yes.

Seven said no, I think.

Seven said no.

So I think that was a factor, you know, as a general matter, if you look at the cases that didn’t happen with a few exceptions, they tend to be case is where there were a substantial number of no votes. And so there may have been some signaling to the prosecutors there that these are gonna be harder cases. There are some other factors as well. The indictment is primarily. It has other charges in it, but it is primarily a telling a single story under the Georgia Rico statute, and she clearly focused on stuff that was within the bounds of of that narrative The other factor that I think particularly affected the senators, those were three sitting senators at the time.

And there would be substantial speech and debate clause, defenses that are not available to people who are not in Congress speech and debate clause being an extremely powerful federal constitutional immunity that is currently protecting various members of Congress from Jack Smith, you know, I think there was probably a calculation on the part of the Fulton County DAAs office that, you know, we have a big enough fight that we’re picking with the Rico doctrine alone, we don’t need to have a war about the speech and debate clause immunity of senators.

Okay. Let’s switch gears. Let’s talk about the documents case down in Florida. On Wednesday, Judge, Eileen Cannon, finally entered a protective order, governing disclosure of classified informations during discovery. The government had filed a motion for the protective order back in July.

Judge Cannon finally granted it. Andrew Weisman was on, the social media site formerly known as Twitter saying it’s unbelievable along this is taken. The delay means government discovery could not go out until this was signed by the court, but she also rejected Trump’s request to speak about classified documents outside of a skiff, and she didn’t grant his desire to have a skiff facility down at Mar a Lago. Apparently, one of the things we learned was that Trump had three thousand five hundred pages of documents at various classification level So how is that case proceeding? What are you seeing from Judge Eileen Cannon?

Well, so mostly what we’re seeing is relatively little action, and the slowness of this, and Andrew is absolutely right, entering a protective order is something that is normally takes a couple days. And if you compare this with, you know, judge Chuckens, conduct in DC, where I think within the first week after the arraignment, they had a hearing on disputed issues with respect the protective order, and she entered a protective order. Right? This shouldn’t be a complicated litigation that takes you know, nearly two months to resolve. And so that’s not a good sign regarding her case management ability.

That said, you know, there’s nothing really wrong with the protective order she entered. There’s a few little oddities of But there’s nothing terrible about it. And so mostly what you’re seeing is that she’s not ruling in a timely fashion, and that can have some some significant negative implications. I still think it’s too early to say this case is a disaster, but it’s there are definitely some concerning signs in the way she’s managing it.

Well, in in contrast, and you mentioned this, Judge Tania Chutkin has been moving very, very quickly. And one of the big developments this week, of course, was Trump, has moved formally to have a judge Chuck can recuse herself from the January sixth case based on comments. She made in other cases. And he cites the fact that Judge Hutkin had criticized a January sixth defendant during sentencing for having blind loyalty to quote one person who, by the way, remains free to this day. First of all, I mean, nobody expects that judge Chutkin is going to recuse herself, but it is striking how Aggressively, Trump continues to attack the judge.

Both in the court papers, and on social media. So give me your thoughts on on this.

Striking and in my judgment very foolish. Yeah. Because You know, Judge Chuckkin is a former public defender. She is not somebody who is hostile to defendant’s interests. She has been a tough censor in the January sixth cases.

But we’re nowhere near the sentencing phase of this right now. And if you’re Donald Trump alienating this particular judge, who is, by the way, not gonna recuse herself. I think it’s safe to she’s

not going away. I’m

not gonna be forced to recuse herself either. I don’t really understand what you get from that. It strikes me as a very foolish and self defeating idea.

I agree, except that let me try this here, is that it makes no sense if we think of Donald Trump as a conventional defendant in a criminal case, who has respect for the court and is really concerned about what happens in court. Donald Trump is waging a completely asymmetrical war. Here. I mean, first of all, because, you know, the courts can’t fight back. This is part of his long march through American institutions, discrediting any of them.

The challenge him. So we’ve seen the success he’s had in discrediting the news media to the point where, you know, no matter what is reported, no matter what negotiations are published. He and his supporters can simply dismiss them because they’ve been discredited. They have no credibility. Well, now Yes.

Conventionally, it makes no sense for him to be doing the things that he’s doing. But I think that his his agenda here is to do to the entire criminal justice system what he has done to other institutions, whether it was the deep state or or any of his opponents, and that he he is very And I used the word consciously with an asterisk beside it, is trying to discredit the entire prosecution. So that the people no longer trust juries, courts, judges so that at the end of the day, when he is convicted of all of this, He will say, see, it was rigged against me in the first place, and his supporters will say, well, yeah, why should we care about a federal judge or why should we care about a judge in DC or in Fulton County. So part of what he is doing is this, in order to protect himself, this massive campaign of the destruction of the credibility of these institutions and the implications of that ban I think are just massive because it’s not just Donald Trump getting away with stuff. It’s Donald Trump convincing an entire political party and tens of millions of Americans not to believe the evidence that they see, not to trust juries, not to trust prosecutors, not to trust the outcome of these trials.

And I don’t know how we come back from that if he succeeds.

So you’re certainly describing accurately the strategy. And I have no doubt that you are right that that’s what he’s doing. But he’s leaving a hole for Judge Aileen Cannon. Right? He’s not doing that to judge Cannon.

Right.

And, actually, I don’t think I’m not sure, but has he attacked Judge McAfee in in Fulton County?

Not yet. Give it a minute.

Right. Sure. But my question is, like, you know, is the attack on the judge here Because if anything she’s actually done, or is it just because she’s a democratically appointed black woman?

Well, I think there’s a pattern in there as well. I mean, there there’s a reason why he has been so aggressive with Alvin Bragg, Fanny Will Saletan Judge Chutkin. I mean, he knows how to pick his targets and his enemies.

I think that’s right. I think the only thing Judge Chucken has done that he has a reason to be upset about is that she’s, you know, set a trial date in a relatively aggressive fashion. By the way, it’s not that much more aggressive than Judge Cannon who set one for, you know, a couple months later, But one of them is his appointment. One of them is an Obama appointee who’s a black woman. I think that’s really the the only difference.

And I do think you know, even if you’re Donald Trump and you’re not really capable of being strategic in your emotional response, There’s something to be said for not publicly attacking somebody who can order you put in prison. Or locked up in jail while you’re, you know, like, there’s a certain, like, we’re gonna have months and months and months of this And I don’t know whether Judge Chuckan has the patience of a saint or not. But if I were in front of her as a criminal defendant, on bail, which is what he is. I would not necessarily wanna, you know, be aggressive about finding out. I don’t know.

Like, I’m clearly not him. So

Yeah. Mess around and find out. This is an indication though. I think in another tell about how Radha hold the gamble that he’s placing in this sort of Trump legal casino, which is that that he’s putting all of his hopes now in winning the election and making everything go away. Right?

I mean, because if he’s playing in the world of the criminal justice system, this is really stupid, and it’s very, very dangerous. So he’s put all of his chips, basically, on I’m going to overturn the board. I’m going to be elected president and make everything go away.

That is clearly what he’s doing. Okay.

Now speaking of of his strategy, not a surprise that he has been in close contact house Republicans who this week announced. Without a vote, an impeachment inquiry into Joe Biden. I was I was on a show yesterday with the historian John Meek And I thought I had an interesting way of describing this. He said, basically, Trump and the Republicans have decided they needed some counter programming Yes. Right?

Because we’re talking about all of the Trump trials, all of the indictments, all of this. So they figured we need to have our own show. And so we’re going to have the Trump impeachment show. You know, over the last couple of days, it was striking me to the extent to which the media narrative shifted from following the Trump trials to now, like, what’s the impeachment gonna be? What evidence do they have?

So I think it’s an open question about whether or not this counter programming will accomplish what they want it to, your thoughts, ma’am.

Again, this is getting into an area that is political prognostication rather than anything that has to do with law. But let me just say that I think there’s a problem with this strategy, which is if you’re gonna impeach him, you need to be able to write a document. It’s called an article of impeachment, and it needs to be able to say that Joe Biden did thing and that that something was a high crime and misdemeanor.

And that we have this evidence that he did it.

Or even if, like, you could you could allege something falsely. Right? Yeah. But you gotta be able to say Joe Biden did x and x is a high crime in misdemeanor.

Yes.

And I still don’t understand what x is. I understand that they could have an article of impeachment against Hunter Biden. But Hunter Biden isn’t in an office and they can’t impeach him. I understand that they really want to impeach Joe Biden but you actually need this document. And I just don’t know what it’s gonna say.

That two hundred and eighteen of them actually have to vote for. I think what the risk here for them is that they’re setting up counter programming that has no climactic scene. Right? The you just saw the climactic scene, which is Kevin McCarthy giving a press conference saying we’re gonna have an impeachment inquiry. But when they sit down to write the document that says, Joe Biden president of the United States did x and x is a high crime and misdemeanor they’re gonna have writer’s block.

Oh, yeah. See, I I am more cynical than you are, Ben,

or hang on. Let me let

me just

tee it up for you. Or they’re gonna have this problem where you write it down. And then because it’s clearly not true, You can’t get your people to vote for it.

Have you met these guys?

But there are thirty of them whose votes they thought were unreliable for purposes and even starting this thing. So now you’re gonna accelerate it. You’re gonna get to the end of it. Whatever it is. And you’re gonna have them vote.

Some of them are in districts that Joe Biden won. And you’re gonna say, you’re gonna vote for either a document that doesn’t describe a high crime or misdemeanor that doesn’t describe Joe Biden’s conduct or that is factually false. How does this work for them?

Okay. So you’re just saying that what will have to happen is is they would have to be craven and stupid. I think they’ve demonstrated repeatedly that they are capable of of doing that. No. I don’t think that this is a smart move.

I this is not a move of political, genius, you know, Kevin McCarthy, real man of political genius. I I think it’s gonna blow up in several ways. And number one, it shines a spotlight on They’re leading investigators who are clearly not ready for prime time. I mean, if you’re a Democrat, I think you want as much attention and scrutiny on James Comer as possible because that guy is a hot mess. To that extent, these hearings They’re not gonna be like the January sixth committee because the Democrats are going to be there, and they will offer very, very strong defenses of Joe Biden.

And and the people who have been pushing the conspiracy theories, this may sail on, say, Fox News or News Max, but I think it’s gonna be much more difficult, particularly if a lot of attention. And so, you know, some of the least competent, least able members of the house are are going to become much more famous at a time when They don’t want them to. That’s number one. You mentioned the problem of the swing districts. So if Kevin McCarthy were in his great wisdom, to decide that he has to cave in to, Matt Gates and Marjorie Taylor Green and force a vote and make this a litmus test vote.

He is forcing dozens, potentially, of his own members to walk the plank. So in order to keep his job to keep that hollow gabble this week, He’s putting his entire majority at risk. And, of course, then the larger picture is and, again, this may sound somewhat cynical. This throws Joe Biden a lifeline because, you know, there’s been a lot of, you know, fetching about his age and, you know, through the polls suggesting, you know, weakness among the democratic electoral base, nothing focuses the mind to rally around as much as an impeachment like the one that Kevin McCarthy has just launched. So on so many levels, I think that this counter programming is another example of that sort of short term.

They’re playing checkers. They’re not thinking long term. They’re not only not thinking about the verdict of history. They’re not even thinking about the the the third move, fourth move, or what it’s going to look like after they have close the government and potentially crash to the economy. They’re not even thinking how this was going to play out next March and April These are folks that are just trying to get through today.

Right?

It’s not the verdict of history. They’re not thinking about the verdict of next week.

Exactly. This is the problem which kind of loops back to this original thing. You you have Mitt Romney looking at the sweep of thousands of years of history, And you have the great mind of Kevin McCarthy thinking, how can I get through Thursday?

Right. Was it Ken Buck who based said, I haven’t seen any evidence of a high crime and misdemeanor. They need his vote. Right? They need the votes of, like, a bunch of people like him.

Did you?

You know, you could really imagine that over the next three months, they contemplate or try the impeachment of president with no evidence that he did anything wrong and shut down the government. And it’s not really a I don’t know. It it’s not a record that you’d wanna run on.

No. And, you know, again, you have to think that there are rational Republicans who are thinking, look, look at these poll numbers. We can win this election. Here are the issues that we would like to talk about. And yet, they can’t turn down the volume on the crazies.

And so you have Kevin McCarthy, and I can’t remember who said this. Just made too many promises to too many, you know, lunatics in his own caucus. And even though, clearly, you know, the You run on inflation. You run on this. You run on, you know, a all of the things that that a conventional political party will do.

And yet where that We’re going to, you know, talk about a hundred Biden’s laptop endlessly while we’re shutting down the government, and then trying to convince the and people that we ought to be trusted with more power. I don’t know. Let’s stay out of the business of prognostication, but it doesn’t seem like a genius move to me.

It’ll keep you and me busy.

It will which we will continue to be. Benjamin Willis, thank you so much for joining me on the latest edition of the Trump trials. We’ll do this again next week. Okay? I’m excited about it.

Alright. Thank you all for listening to today’s podcast. I’m Charlie Sykes. We will be back tomorrow will be joined by a very special guest. Bohrk podcasts is produced by Katie Cooper, and engineered and edited by Jason Brown.