Too Crazy for Rudy

Welcome to this week’s episode of the Trump trials, our bulwark podcast that is tracking the four front war the Donald Trump is having to wage in various courts around the country, the rule of law, trying to hold him accountable. Lot to talk about this week joined once again by our good friend, Ben Whittis from Law Fair. Morning, Ben. Hey. Good morning.

Shall we start with the so called proper tapes? Wanna talk about cameras in the courtroom and argue about that and all this stuff and the gag orders, but could we just start with Jenna Ellis and Sydney Powell?

Let’s start with the proper tips.

Okay. In case you haven’t been paying any attention, which I assume most of our listeners have been paying attention, ABC News obtained portions of these proper sessions. With Jenna Ellis and Sydney Powell now. Correct me if I’m wrong any anytime you’re okay, man. But proper sessions are basically interviews with the prosecutors that typically part of a plea deal.

You get to come in, say, what you would testify to. You can’t be held accountable for it. Right? You then they decide whether or not they’re gonna make a deal with you or not. So in these sessions, the defendants disclose what they wanna share with the government.

And, in the portion with Jenna Ellis, She explains that, Trump White House official Dan Scavino, who is his social media guru, told her in late December two thousand twenty, the boss would not leave the White House, but listen to the way she describes it.

The conversation was around December nineteenth of twenty twenty, at the White House Christmas party. And I, emphasized him. I thought that the, the the claims and the ability to challenge. The election results was essentially over because he said, to me, and I kind of excited to well, we don’t care, and we’re not gonna leave. And I said, what do you mean?

And he said, well, the boss meaning President Trump and everyone under the boss, that’s what we all called him. He said the boss, is not going to leave under any circumstances. We are just going to stay in power. And I said, Tim will doesn’t quite work that way. You realize, and he said we don’t care.

Okay. Just a little footnote here, Jenna Ellis, you know, implies that she was, like, the voice of reason saying it doesn’t work that way. A couple of days later, though, she tweeted that president Trump should never concede the election. But, Ben, what do you make of of that little bit of hearsay evidence.

First of all, you know, Jenna Ellis, like all of these characters is somebody who is, at this point, turning on or trying to turn on Trump and his cadre. She’s a bit late in that. There’s obviously questions about her sincerity. And so you gotta keep all that in mind as you, imagine what she would be like as a witness Look, that said, there are some things in there that are pretty damaging to Trump. And, admittedly, this is not Trump himself saying this, but it is somebody close to him describing exactly what he ended up trying to do with two weeks to go.

And it’s not surprising. It’s not hard to believe how usable it is both for admissibility reasons, and they apparently have him saying similar things in his own voice So why you would need it through through Scaveno through Alice is not entirely clear to me. But look, with all of these proper videos, I think you you should keep two things in mind. The first is that it was in somebody’s interest to dump them in public. It’s not necessarily inappropriate for that to happen.

They’re not subject to a protective order. They were given to all the defendants, I believe, in discovery. And so any defendant who has a reason to want to give it out. It’s perfectly appropriate for their defense lawyers to hand them out. But somebody’s doing it for a strategic reason.

And maybe that strategic reason is because they think it makes Trump look bad or maybe this strategic reason is that honestly, they think that Sydney Powell comes off as deranged, and it doesn’t really do trump that much harm. So just ask yourself when you watch these

Who benefits?

Who benefits and why somebody wants this out right now

Fanny Willis clearly did not. She was, you know, filed a motion to seal some of this to to block this from happening. She seemed very unhappy, which is not that surprising because leaders do not want their evidence aired before trial. Correct? So I mean so again, I think it’s very, very clear.

This came from one of the defense teams What we don’t know is who and we don’t know why necessarily.

Right. And there’s a lot of possibilities. Right? You know, presumably it is not well, One would hope it is not one of the lawyers for the four defendants who pled out. And the reason I say that is that they are subject to, as part of their agreements, they’re not supposed to make press comments, they’re not And so

Yes. They

should be. There should be some restraint on the part of Jennifer Ellis’ lawyers on the part of Sydney Powell’ lawyers But any of the others, and there’s, you know, fifteen others, it is perfectly appropriate for them to do this. Appropriate? Is that the word? I mean, appropriate?

Well, it’s not inappropriate.

Okay. Okay. Let’s talk about the substance of this. Because, I mean, I have a couple of things to say about. The story that Jenna Ellis is telling about Dan Scamino at the Christmas party saying the boss has no intention of leaving the White House.

Number one, I mean, it is hearsay evidence. So I think it’s questionable whether that will ever show up in court of law. Number two.

Although what’s not hearsay evidence is if you then call Dan Scavino Right. Right. And say you know, Jennifer Ellis said this, first of all, is it true? Right? And they can it’s a lead.

You could get that in a way that is not necessarily hearsay.

He’s not likely to confirm. Okay. So, I mean, Dan Scovino is kind of a notorious idiot. He may be, you know, the Trump social media, Twitter, whisper, But he’s a guy who, you know, like so many people in Maga World promoted way past their own abilities. A guy who was a caddy who became a White House official.

It’s at a Christmas party, which raises the possibility of shall we say that mister Scavino, who’s a gas city is never great under normal circumstances might have been, over served, so we don’t know. On the other hand, what I think is interesting is the glimpse this gives us into what was going on in the White House. Bill Barr described Donald Trump as being detached from reality. And I think the more we learned about this, we realized how detached from reality, Donald Trump, and his inner circle were The fact that we have this report now from Jonathan Carl in his new book tapes that would suggest that that even after he left the White House, the Trump was weirdly and bizarrely fascinated with the possibility that he might actually be reinstated as president, which is absolutely insane. Yeah.

When you think about what goes on in this guy’s mind, as we realize that at the time, I think some some of us, some folks were more alarmed than others of what was going on. The emanations coming out of the White House as we’re learning, perhaps we should have been even more alarmed. I mean, remember when that letter came out from the Pentagon, saying the military will have no role, in the transfer of power. That was pretty alarming. And now we we peel back the curtain, and we realized that this was alarming.

And it all keeps coming back to Donald Trump, the mind of Donald Trump, and the way in which One lawyer after another, one staffer after another tells him he lost the election. But what does he do? He listens to people like Sydney Powell. He surrounds himself with people like Dan Scavino and even Jenna Ellis. So I don’t know how the prosecutors use this how they connect the dots, but all of the insanity and the detachment from reality comes back to Donald Trump, and we are just getting one example after another of that.

Yeah. And remember that we get a glimpse of this through Dan Scavino through Jenna Ellis, but we also have much more direct views of it. So, for example, Mark Meadows who will not testify in this trial where he’s a defendant could very well be made to testify or be asked to testify at the federal level. In fact, we know he’s spent a lot of time in front of that grand jury. And so you know, whether whether there are a fifth amendment bars given that he is under indictment in Georgia is, gets complicated.

But the prosecutors at the federal level have a lot of direct insight. Remember, they have Cassidy Hutchinson, They have the lawyers. They have all of these different actors who are in a position to testify to some of the things that Dan Scavino allegedly knew in this account. And remember also that Jenna Ellis’s full story may be richer than the snippets that ABC reported on.

Right. So, well, this will play one other clip from Sydney Powell. I mean, she describes, and, you know, there was there’s a lot here. You know, she talks about how she had plans to cease voting jeans around the country that she frequently spoke to Donald Trump, that she believed Trump won the election, but conceded she didn’t know any election law that she’d never practiced any law. In this clip, though, you get a sense of how absolutely insane this was, what a shit show, within a clown car.

This was when she describes this one meeting, where apparently she was so crazy that that even Rudy Giuliani had to draw the line. This is this is Sydney Powell talking about what Rudy Giuliani thought about her.

There was a big shouting match in which Rudy called me every name in the book. And, I was the worst lawyer he’d ever seen in his life. There were no circumstances under which he had worked with me on anything. He called me a I don’t know what all. And that’s pretty much all I remember about that one.

She remembered that, though. So too crazy for Rudy.

There you go.

This is the scorpion in the bag phase of all of this where they all hated each other. We’re ripping each other and screaming at each other and threatening one another.

I can promise you very few things in life, Charlie, but I can promise you that, Sydney Powell will not be called as a prosecution witness. And so in that sense, her proper is not deeply important. They won’t call her because in fact, She is, pretty nutty. Yeah. And she’s not an especially credible witness either and would be great fun for defense lawyers to take apart with impeachment, like, you know, were you too crazy for Rudy Giuliani

Yeah.

Ma’am, right?

And so Giuliani think about you.

Right. Exactly. So I I think, you know, you could see Jenna Ellis called you could see Scott Hall and Ken Chesborough called, for discrete pieces of information I think it’s very unlikely that you’re gonna see Sydney Powell called.

I would think that one of the most important developments in that racketeering case though, is that Fony Willis is now telling the Washington Post that she anticipated that the, the Georgia racketeering trial would conclude in early twenty twenty five. And for soft proceedings still being underway during the final stretch of the twenty twenty four campaign, She says the calendar, the election calendar plays no role in her decisions about the case. The judge in the case has not scheduled the case. He may be forced to take account of the timing of the other criminal proceedings. But for anyone who thought that the Georgia case was going to be wrapped up before the election, no.

This seems like a rather significant development, especially with Aileen Canon dragging her feet. So it really does, once again, underline something we’ve talked about many times in the past. It comes down to this sedition trial in Washington, DC. That’s that’s the one that is maybe the only one that’s likely to be concluded before the election.

So I think we gotta all keep an open mind about this. And,

let me I’m willing to do so.

Let’s throw some variables into the equation. The first is, Tanya Chuck in the judge and why seems very committed to her March fourth date.

Yes.

March fifth. I can’t remember which. The Only thing that I know of that can get in the way of that if she’s serious about it. Is this presidential immunity argument that could require an appeal between now and then And it is possible, though I don’t think very likely that that appellate process could slap a stay on the underlying proceedings. But I think you should assume that that trial is going forward on the fifth.

Like, that should be our working assumption. District judges are the most powerful people in cases and if Tanya Chuckkin wants the trial to go forward in early March, it is likely to go forward in early March. Now Right around the same time as that case is scheduled to go to trial. Judge Eileen Cannon says she will decide whether to move her May trial deadline in Mar a Lago. Everybody seems pretty confident that she’s gonna move it because of the way she scheduled

She’s Eileen Cannon.

Yeah. Because she’s Eileen Cannon and because she’s scheduled the pretrial motions in such a way that people who follow SIPA litigation very carefully are confident it’s inconsistent with the May, but she’s not gonna decide that. Until March. That means that judge McAfee, the Georgia superstar judge whom I am a big fan of, he cannot schedule a trial right now in a fashion that could interfere with either the March or the May dates May in Florida, March in Washington. So he can’t even schedule a trial now in a fashion that would be before mid summer.

However, come March when she pushes that deadline back, he could then schedule something say in June. And so I would not be surprised if the result ironically of Aileen Cannon’s machinations, is that you have a March trial and then you have a calendar opened up for essentially the whole summer And the result is kind of a worst of all world situation for Trump, which is that you have a conviction in March, April, early May time frame, and then a ongoing trial in Georgia Mhmm. That is not concluded yet at the time of the election. And I think that would be a really, really bad out come for Trump.

Awkward.

Very awkward. Yeah. Very awkward.

That’s a There are

a lot of variables involved in the trial scheduling here, but I am not sure that the answer will not be a conviction in spring. A trial that drags out over the course of the remainder of the election cycle and then the Mar a Lago case looming in the distance.

The worst case scenario, of course, is the is the one that you you hit it at, though, where you have the appeal an appeal that will result in a stay of Judge Chutkin’s trial. Who decides that? So let’s say they they appeal the the immunity argument, it goes up to the, the court of appeals or to the Supreme Court, then will it be up to the appeals court? Or, I mean, who will who will decide?

Yeah. Here’s how I think the question will present. So first, judge Chuckkin has to rule on the immunity motion.

Right.

She will deny the immunity motion. Then

Right.

Trump will ask her to stay the proceedings while he appeals. I assume because she’s shown a lot of commitment to that March trial deadline, she will deny that. He will then appeal it to the DC Circuit and ask the DC Circuit for a stay. My guess is they will issue a temporary administrative stay and then lift it. But that’s just my guess.

The Supreme Court Who knows?

I should have clarified it. So the the issue, the immunity issue is his argument that as the president of the United States, he should be absolutely immune from any prosecution for anything that he did. During his presidency, would that apply to his post presidency as well?

No. It do it doesn’t apply to his post presidency So it’s a killer argument if it’s a winner, which I don’t think it is. It’s a killer argument with respect to the January sixth case. It does not affect the Mar a Lago case.

Alright. The other really interesting debate, that broke out or intensified this week, is the effort to have this, DC trial televised? I mean, last week, Trump said that he wanted, Judge Chutkin to agree To the request by news organizations to broadcast the proceedings despite the fact that under federal rules, these trials are never actually televised. You know, his argument, of course, I’m a victim. I’m not being treated fairly.

And the only remedy is transparency. And prosecutors, however, are pushing back on this. They’re telling judge Judd, that she said that he would treat him like any other defendant and that he’s asking for special treatment to turn the trial into a media event. So where do you come down on all this? I talked about this on on my podcast with Mona Charen the other day.

And I was at least tentatively inclined to think that the blind squirrel had gotten the nut this time that maybe we ought to be. The American people ought to be able to see Donald Trump on travel. What do you think?

Well, first of all, let’s leave aside for a second the question of what ought to be and let us just read the text of rule fifty three of federal rules of criminal procedure, which reads in its entirety, except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. So we can debate all day whether we think that’s a good rule or not. It’s an old rule. There really aren’t exceptions to it in federal district court. And I think, you know, we can talk about all day about what we think the rule should be and whether we light cameras in the courtroom.

Tuesday, this is not gonna happen.

It is not going to happen.

Who can change the rule? Who can set the rule aside? Just I mean, just in in theory The

federal rules of criminal procedure are adopted. I believe by the judicial conference and enacted in statute. They operate with the force of law. You can’t waive them.

They the judge has no discretion in this.

Correct. Okay. That is essentially what the justice department has advised her, and Trump is showboating. Now I will say that there is a really interesting question, and I’m gonna break some news here on your podcast, which I have raised with the court. And I’ve raised it in a letter to the court’s public information office, which is if you put a speech to text engine in the courtroom or in the press room.

Would it violate the rule and the DC courts Yeah. Specific in has a local rule, a a local implementation the rule. Would it violate local rules to produce by AI, by by speech to text, a live transcript of the type that, you know, we get on c span all the time and watch you know, it’s sort of basically a closed captioning. I believe it does not violate the rule as written, and I have asked for their clarification of their understanding of the rule because I think what I would like to do is basically have a live blog of the text of what is being said. I think that has a plausible chance of being granted because I think I’m right on the law.

But I don’t think there is any chance in this world or the next that the court either will or think it has the authority to or does have the authority to say, okay. For this once, you can set up a camera.

Okay. Okay. I’m gonna concede that point to you, but let’s go back to your question about the AI generated, text. I don’t have a license to practice law or to,

Neither do I.

Or to deploy Latin legal terms. But is the term de novo here that that you’re asked the court to make a judgment that no one’s ever ruled on before? This seems really new. I mean, it’s just

Well, so You know, if you turn on Microsoft Word speech to text and you talk into your computer, it produces a fairly credible transcript of this.

We can do this with this podcast, by the way.

Exactly. Yeah. And if you click on the captioning on the YouTube version of this podcast, it’ll spit up a reasonably good transcript.

Although, it refers to me as Shirley occasionally. I just have to say.

Sure. You can’t be serious.

Surely. Yeah. That’s what I keep thinking about going.

So my question is and here’s I think here is the like, we would not be broadcasting the proceedings within the meaning of the rule, and we would not be recording the proceedings, which is also prohibited. It depends

what the word broadcast and recording mean now. Right? We’re now asking. It depends what comprises the the term broadcasting.

And particularly, I think what recording includes. So you’re not allowed to record the proceedings. But I don’t wanna record the proceedings if recording means retaining a copy of it. But technically, the sound does go into the microphone of the computer and run through a speech to text engine. Is that a porting for the millionth of a second that it has it.

And so my view is I think the better reading of the rule is the way I read it. Which is I would broadcast only text, and we already do that. We have Roger Parloff in the courtroom in the media room live tweeting. Right? So this is basically a tech enhance of the live tweeting.

And the question is, does the court agree with my reading? I will, of course, live with whatever judge Chuck in and the public information office decide, but my view is that we could kind of split this baby and what the press is asking for that is reasonable is the ability to convey exactly what is said to every witness, exactly what every witness says, the rule is really clear that you can’t do that with a camera or a tape recorder. There’s a kind of open question whether you can do it with text, and I wanna force the court to answer that question.

Well, and I think that, you know, we’re in this brave new world where we have to decide, you know, what does recording mean audio recording? Does it mean this? And although I must say, Ben, I’m I’m deeply troubled by your analogy just splitting the baby because remember, that played out. We don’t

Well, I I agree. We we don’t split babies.

The whole point of that that story is that, don’t split the

baby.

Don’t split the baby, but remember the one who one side wins, the the side that wins was the one who said, no. No. No. Don’t split the baby. And so don’t split the baby.

Just

saying to judge Chuckkin. No. No. No. No.

No. Don’t say nothing is allowed, say text is allowed.

So the other big issue, the gag order back again, process cuters this week made their case to a federal appeals court for the restoration of the Trump gag order in the subversion case We all remember the three judge panel this month suspended. The restrictions imposed by Judge Jutkin, and the New York Times reported the Jack Smith’s team argued it in a six seven page, finally the Trump has repeatedly sought to malign, Smith, a special prosecutor, and his family, and to target specific witnesses with attacks on their character and credibility. Prosecutors noted that his attacks were, quote, part of a pattern stretching back for years in which people publicly targeted by the defendant are as a result of the targeting subject to harassment threats and intimidation Miss’s office also pointed out how Trump had exploited suspensions of the gag order to mount some of his most inflammatory attacks on prosecutors and witnesses including his suggestion that Mark Millie be executed as reference to, Mark Meadows potentially flipping. He, suggested that anyone who made deals with the government was a weakling or a coward oral arguments on the matter are scheduled for Monday. So let’s talk about this because Trump seems to be escalating his rhetoric.

And as he has, You know, been buoyed by the polls. There’s the prospect that he, in fact, could become the president again. He’s made it clear that his presidency would be one of retribution and end. So on one level, he is making it very clear that if he thinks you are a vermin or scum or weakling, whatever, that he might come after you, use the Department of Justice that seems to be a rather significant threat against potential witnesses, on the other hand, people who, continue to be complicit or refuse to cooperate can perhaps hope, if not count on the possibility of a Trump presidential pardon. So talk to me about this how the courts are likely to see this gag order and how far they’re willing to go?

Yeah. So I think this panel of the DC circuit seems to me very likely to uphold Judge Shutkins ruling. And by the way, I think that’s right. Like, a judge has to have some inherent authority to manage conduct in her courtroom. And the fact that you happen to be running for president while you are under indictment cannot mean that you can issue essentially calls for violence against witnesses and court staff and prosecutors family and and staff, it just can’t mean that.

Now Are there some issues with the specific text of her ruling? Maybe. But I think there is a very good chance that at least this panel of the DC circuit sees it as this is a judge trying to control her courtroom And there’s a lot of sympathy, among judges for that predicament. Now once you take it up to the Supreme Court, you get into this whole other layer, which is that there are three of them who were appointed by Donald Trump there is a hell of a lot of caution about dealing with this stuff. So one possibility is that Green Court doesn’t wanna hear this at all.

Just wants to keep its hands clean of this. One possibility is that they are way less sympathetic to judge Chuck and you’re further removed from the district bench. One thing about this is not a trivial issue, at the DC Circuit. Which is in the same building as Judge Chutkin’s Chambers, they would actually have occasion to see each other. And the DC Circuit judges are directly affected by the security measures that are necessary to protect that courthouse from the consequences of Trump’s behavior, which is are, by the way, not trivial these measures.

And, you know, I think that the resonance of what she’s doing to the DC Circuit will be much higher than it is to the Supreme Court justices Although many of them, of course, come from the DC circuit. I think she’s very likely

to be upheld at

the DC circuit level. I don’t know how to think about it as a Supreme Court matter.

So let’s talk about the Supreme Court for a moment. How they might be regarding this let me just throw out a a possible theory. I had a discussion with somebody who said the last thing this court wants to do is become embroiled in the US versus Trump. They do not want a replay of what happened with Bush V Gore. The last thing they want to do is perceive you putting their thumb on the scale.

Either way. Do you think that there is that? I mean, because there are people who look at the court and say, well, hey, this is a Trumpist court. He’s this is the court that Donald Trump built. He’s got a majority of conservative.

I’m more skeptical about that. I’m guessing that they will go to extraordinary links not to get involved. And I think we saw maybe well, we keep going back through the the aftermath of the twenty twenty election. They didn’t wanna have anything to do with any of those cases. So your thoughts?

So the Supreme Court is a they, not an it for these purposes.

And I

think you can divide up different justices will have different views on it. But I think it is fair to say the institution of the court will not want to get dragged into the election. And from their point of view, this trial is the election more than it has to. Well, it’s gonna have to because of section three of the fourteenth amendment as we’ve discussed Right. On prior episodes.

That has nothing to do with Trump’s criminal trials, but they all know. All nine of them know that they are gonna have to hear a section three case this year, coming year, or at least that there’s an uncomfortable likelihood that they will. I think that will make them less eager to intervene in this case as well. Cause imagine your, conservative justice, that section three case puts you in a very difficult position because if you’re a textualist, boy is the text clear about what it means. Right?

And so you’re if you’re gonna try to give Trump a buy there, you’re gonna have to squirm textually to do it. And then you’re also gonna interfere in his criminal case. So I think there’s a a very good set of reasons to agree with you that the Supreme Court is not gonna be looking to stick its hands in this. It’s gonna be looking to keep its hands out of it. That said there are certain issues in this case that are present in this case that the Supreme Court justices have prior views on that are, you know, genuinely interesting and reasonably divisive among among reasonable jurists.

And some of them are questions the Supreme Court might eventually feel it has to answer. And that’s, by the way, true of some of the obstruction cases that are not trump specifically, but that affect his case. There’s some real divisive issues at the DC circuit around the meaning of certain obstruction statutes and what kind of conduct it does and doesn’t

Right.

I think there is a good chance that you are exactly right and the Supreme Court will be like Nope. DC circuit can handle this. We have discretionary review over everything. There’s nothing we have to look at. And boy, do we not need to look at questions of presidential immunity right now?

There’s also a chance that it could be a little bit diceier than that.

While we’re on the court, your thoughts about the court, sort of conceding that, yes, perhaps we ought to have a code of ethics. You know, glass half full, glass half empty? How do you how do you look at this?

I would

say glass a third full. I mean

Okay. Third.

It is a step forward that they have adopted a formal ethics code for the first time.

Which is amazing that they’ve never done it. I mean, that is amazing to me, but going.

Right. It is also absurd that there is no enforcement mechanism for this.

Well, that’s a problem.

I say absurd. It’s actually hard to figure out what an enforcement mechanism would look like. So maybe it’s not. But, you know, if we’re supposed to take the governance of that body by itself seriously. The fact that it doesn’t imagine an answer to that question seems a little bit hard to get your hands around.

That said, you know, given that justice Alito’s public position is that nobody has any authority over us So I think his technical position amounts to fuck you.

Yeah.

You know, it’s not an easy thing for John Roberts, the chief justice, You can’t just force this down people’s throats. This is a group of people who, you know, you don’t really have any authority over. And so you gotta do something that people are gonna consent to. I still think Congress should pass a statute and dare them to say the Congress can’t

might as well try, call the bluff. The other big trump trial development, this week is, of course, the New York fraud trial, the Trump organization putting on its defense this week. Of course, they’ve already lost the trial. Don junior returns to the stand. And on Monday, shared what he called the Haratio Alger style story of how his great grandfather, Frederick Trump, came to the United States.

I just wanna point out that horatio Alger did not join the KlookX clan.

Yeah. There were a few distinct. Just just saying. I have to admit, Ben, I’ve I’ve kinda tuned out on that because we kinda know how it ends. I was surprised that Donald Trump himself testified and put on that performance, which he thought clearly, I’m thinking he thought was a success.

Otherwise, he wouldn’t be asking for more televised, testimony, but we are seeing the whole trump family. So Where are we at on that trial?

So we are at the going through the motions phase, I think, because so the judge has already said the company is liable. Right?

Right.

And we’re at this point negotiating the price. And I don’t know what the right price is, and I’m perfectly happy to defer to judge Engorin. And the mechanism by which judge Engorin is gonna make this determination is by receiving evidence in the civil trial One part of that is the Trump people getting to put on their defense, which is what’s happening now. But as you point out, there’s a kabuki like quality to this because it’s a defense that amounts to given that we’ve already lost please make the penalty lower rather than higher. And, of course, they don’t formulate it that way, but that’s the legal question before the court.

So I think it really is at this point. The next significant event that’s gonna happen, there’ll be some closing arguments presumably, but the next significant event is that judge Engorin is gonna write an opinion and assign a number and a set of penalties. And I think we should expect the number to be high and the penalties to be substantial.

You said they’re going through, the motions here. And, I mean, obviously, all all Trump trials are, you know, appeals to public opinion with a with an eye toward, the electorate in his face, but in this particular case, because the stakes are so high for him and so tangible, he’s obviously also preparing for appeal. Right? You know, trying to create a record for appeal.

But I do think this one is different from the criminal trials. So in the criminal trials, you have twelve finders of fact on a couple alternates. And, you know, if you convince one that there’s a reasonable doubt Right. By the way, the jury never announces verdict in advance of the trial. Whereas here, the judge has said, you know, a lot of this we can resolve as a matter of summary judgment You’ve already lost that stuff.

And so he’s removed a huge amount of the suspense that’s built into a criminal trial.

Does that make it more vulnerable to appeal, though?

Not necessarily. No.

Basically, you have the verdict before the trial.

Right. You had the verdict before the trial, but not the verdict before a whole lot of evidence was collected. Remember, the summary judgment works as a way of taking stuff out of the trial realm because no reasonable trial of fact could find anything other than x. Right? So if I sue you for, I don’t know, for throwing a peach at me, and we do all the discovery and then you file a motion for summary judgment that says, look, look at this in the light most favorable to witness.

There’s no record that I purchased a peach. In fact, there’s only record that I purchased grapes. He doesn’t allege that I threw grapes at him And by the way, I have pictures of him after the alleged incident and there’s no peach on his face. Therefore, no reasonable trial or effect could find that I throw a peach at him. Therefore, I should win.

And based on that evidence, the judge says Charlie Sykes wins, we resolve this as a summary matter. Doesn’t need to go to a jury. So what judge and Goren did here is he issued a partial summary judgment order for the part of the case that the evidence clearly resolved, and that opinion is either right or it’s wrong. And that is subject to appeal and is being appealed. And then there is the matters that he let go to a jury, which in this case is not a jury.

It’s him, but he let go to trial and a lot of civil cases are resolved on summary judgment or in this case on partial summary judgment, and it’s it’s a perfectly valid way to resolve a case. Assuming the evidence supports. It’s exactly what happened to, you know, to Fox News in that libel case.

So let’s talk about a non legal issue very briefly. Congress appears to be avoiding a shutdown. They came up with legislation yesterday, mainly with democratic votes to latter the extension of government spending, but this is what I wanna ask you about. There’s no money for Ukraine. There’s no money for Israel.

How alarm should we be? If we wouldn’t run the tape back a few months ago and we said, okay. We’re going to have a CR passed at the end of the year, and there will be nothing. No emergency aid for Israel, no emergency aid for Ukraine. I would think that’d be pretty bad.

What do you think?

Well, I think it’s pretty bad. And I think it’s worse on the Ukraine side than on the Israel side. Israel has a deep military It’s having some supply issues as a result of using up a lot of material very quickly, but the Israelis is Right. In important ways can take care of themselves you know, the Ukrainians are are actually running out of ammunition, and it’s a very serious problem. And there are a lot of members Congress, most importantly, the speaker of the house, who should be very deeply ashamed of themselves that they have let it get this far, and I am worried about it.

I think the longer we get dug in on these stupid, unimportant questions that people love to talk about in Congress, you know, which is the Ukrainian military woke And, you know, the these very, very stupid, unimportant questions, there’s actually a seven hundred mile front in Eastern Ukraine and northeastern Ukraine in which people are dying every day. And the idea that we are subjecting that to our partisan games is really, really shameful. And I wanna say, I think the administration has done everything it can. Senator McConnell has been very good about this a whole lot of people are trying to do the right thing. And this needs to get over the finish line, and this is now the second time we are contemplating a CR to keep the government open that is essentially at the expense of the Ukrainian military other than saying it’s bad.

It’s dangerous, and I hope we resolve it really soon. I’m not sure what else to say about it, but it’s really, really upsetting.

Well, January is going to be do or die. I think it’s gonna be life or death for this. These things are going to have to be resolved There is a real clock running on all of this. The ammunition is not replenishing itself. And will the Congress be more serious?

Will it be more adult? Will America rise to its responsibilities in January when it has not done so in November. I don’t know. I am worried about this.

Well, it’s it needs to do it between now and then as a supplemental not as part of the CR. Right. But it’s not just Ukraine. It’s also Taiwan. And Israel.

Right? So the Taiwan supplemental was incorporated by the administration into the Ukraine supplemental and tied to the Israeli supplemental by way of saying, hey, you know, sending a message to China. Right? Right now, what Congress is sending is a kind of global message of we don’t care if you’re attacked by Hamas. We don’t care if people’s liberation army is threatening to invade.

And we don’t care if you’re currently being invaded by the Russians don’t look to the US Congress to help if that means that we actually have to do our jobs in a timely fashion because that is nonnegotiable. And people need to make distinctions between members of Congress about this as well.

Thank you.

In

these days, we’re all partisans in some sense since one of the parties represent democracy anymore, but there are a bunch of Republican senators starting with the minority leader who have been excellent. And it’s really important to understand the difference between a Mitch McConnell and Mike Johnson here. This is something where a lot of normie Republicans in the house are fine. If you give them the chance to vote on something, they will vote the right way. Their leadership is not allowing a vote on Ukraine money in a fashion that is untethered to domestic political issues.

And we just need to be really single mindedly focused here on who the problem is and what the problem is.

Well, I could not agree more with you. Ben, this has been fantastic. I really appreciate it. Normally, we will say that we’re gonna be back next week. We’re gonna do this all over again, but Ben, next week is Thanksgiving.

Right. We will not be back next week, and we will not do this all over again. We’ll be back in two weeks, and we’ll do this all over again.

Precisely. And enjoy the turkey, the ham, however you celebrate or whether or not you go to a Chinese restaurant on Thanksgiving. Just enjoy the holiday.

You too.

Alright. Thank you all for listening to today’s Bulwark podcast. I’m Charlie Sykes. We’ll be back tomorrow, and we will do this all over again. In fact, tomorrow’s podcast will be our live event from Washington, DC.

You’re gonna wanna check that out. Over, podcasts is produced by Katie Cooper, and engineered and edited by some brown.