Trump Baits the Judge

Even as Donald Trump mounts a multi front defense and tries to get a change of venue, the former president’s legal troubles continue to mount. Last week, was an indictment by the special council in Washington, DC. He now faces seventy eight separate felony counts that could carry a maximum prison sentence of nearly six hundred and fifty years, but it is about to get worse. Next week, Georgia prosecutors may add more than a dozen new felony charges against Trump and some of his allies. Meanwhile, this week, we got a detailed look at a memo ling out the coup conspiracy because they actually put it in writing.

We also learned that Jack Smith had obtained a search warrant for Trump’s Twitter account And the lawyers are tangling over a protective order in the special counsel’s case in Washington, DC even as Trump makes it abundantly clear, that he fully intends to talk about the case, lashing out at prosecutors, judges, and even potential jurors. Welcome to this week’s edition of Trump trials with our partner from Lawfair, Ben Wittis. Good morning, Ben. Hey, Charlie. The zone is full.

Can we just start just going back to, late last week where, less than twenty four hours after he is arraigned in front of a federal magistrate who tells him yeah, don’t try to intimidate witnesses or or jurors. Donald Trump tweets out or bleats out in all caps If you come after me, I’m coming after you, this special counsel put this in its motion for a protective order. They’re they’re not specifically asking for a gag on that, but give me your sense of how the judge is going to react to a criminal defendant who, if not in the technical sense, but certainly in any other colloquial sense, is on an hourly basis, showing absolute complete contempt for the court.

Yeah. So this is contempt of court in both the literal and the figurative sense of it. Right. You know, this has not been an issue for him with Judge Eileen Cannon in South Florida because he hasn’t been attacking her and because you know, she’s pretty sympathetic anyway, but it’s gonna be an issue for him with the DC judge, Tanya Chutkin. She is, first of all, you know, not unespecially sympathetic, psychophantic figure, you know, he’s also going after her in a way that is not true in some of the other cases you know, she’s a democratic appointee.

She’s also let’s face it in a democratic jurisdiction, and she is not white. Right? So

And an immigrant.

Right. She’s got a bunch of the different features that causes him to go after judges from the time that he went after the judge and A

lot of things triggering him there.

Exactly. You know, so the question is what does Jack Smith do about it and what does, judge Chuck can do about it? We know the answer to the first question so far, which is Jack Smith has not asked for any specific remedy, but he has made a point of getting it into the record. And the significance of that is that, you know, you and I can just talk about all the things that Donald Trump has done. In a court case, you’re not allowed to do that.

You actually can only talk about stuff that’s been entered into the record. And so my assumption is what he’s doing here is he’s figured out a way to get it in front of the judge, he’s gonna let the stuff accumulate a little bit so that by the time he asks for some kind of a remedy, and what remedy there may be available is a really complicated question. There will be a bunch of these incidents in the record, and he’ll be able to say notwithstanding the court’s conditions of release. He has done x. He has done y.

He has done z. You want before you ask for a judge to take an action on it, you want something really egregious and really on point. And so I I assume what he’s gonna do is he’s gonna make sure the judge is aware of every single one of these, but play a longer game.

Did feel, and I wrote this earlier this week that it felt like Trump was baiting the judge, daring the judge, and, you know, putting her in a and let’s be honest about it. You know, his his outrageous behavior does create a dilemma for her because it’s almost as if he wants to be a martyr that he is trying to bait her into trying to impose some sort of a gag order because, he figures he wins either way, right, that he’s out there saying, they are taking away my first Amendment rights. He’s already making this argument. They’re trying to silence me. They’re trying to say that I can’t defend myself.

And yet if she lets it go, then he simply rolls over her and makes it clear that he’s not abiding by the same rules that would apply to any other criminal defendant. So he is really trying to put the judge in the corner. Is it possible at some point that the judge calls Donald Trump and his lawyers into her courtroom and ask Donald Trump himself, what do you mean by these statements? If you come after me, I’m coming after you, or whatever the statements there. Does she have the ability under the fifth amendment to ask Donald Trump himself to explain to her, not in front of a jury, not not as part of the actual trial itself.

Does the judge have the ability to make Donald Trump in court Just answer questions. What are you doing? What did you mean? Because that would be an extraordinary moment. Is that possible, first of all?

Yeah. So I think in as a general matter, the council would answer questions for him. But look, she can definitely haul him in for a contempt hearing or for, you know, a revocation of supervised release. He is out on Bulwark, actually. And so the terms of release are subject to, you know, his following the judge’s conditions of release, which, you know, do not include, you know, threats to participants in in the case.

I do think she would very likely wait for emotion from the prosecutors for this. I think, normally speaking, judges are loath to do things like this on their own motion. They can get so offended that they do it. But generally speaking, they’re gonna she’s gonna follow Jack Smith’s lead here. I think.

But look, we’ve never seen a situation like this.

Well, exactly. Yeah. I mean, we use the word unprecedented too much, but the reality is is that there is no parallel to this. At all. I mean, there’s no place you you go into the into the case law and go, okay, you have a former president of the United States who is currently the, front running candidate for his party’s presidential nomination.

He is out in the middle of a presidential campaign. What do you do with somebody who is flouting all of the normal rules and norms of of a case like this.

Yeah. And that’s the problem. And the answer is your improvising. You have a lot of rules that are the normal order, and you’re gonna follow them whenever you can. But then you’re gonna have a situation where the defendant bleeds out.

If you come after me, I’m coming after you, and you gotta figure out, is that different from if

— Mhmm. —

somebody, you know, a a normal criminal defendant says that on Twitter? Is it the same? Is it should you it’d be interpreted as a threat to the prosecutors or to the judge or should it be interpreted as political speech? There aren’t really good answers to these questions, and so she is gonna have to do a lot of improvisation.

So let’s talk about what’s going to happen in this first hearing that is that is coming up for the protective order. Protective orders are not unusual, and there is a distinction isn’t that that we probably should describe a distinction between a protective order and a gag order because, there’s some confusion in the media accounts. And, of course, Donald Trump wants to characterize this as an attempt to gag him. So what is the issue in front of the court involving the protective order in this case.

So the issue here is the protection of matters produced to Donald Trump and his lawyers in discovery. The government has a whole lot of information and evidence that it is obliged to turn over to the defendant. And the question is what rules, if any, guide his or restrict his ability to bleed about them or go on Fox News and talk about them. These are not classified materials, but they can be individually sensitive materials in terms of, you know, people’s home addresses or phone numbers, or could potentially bear on the safety of witnesses and that sort of thing, having a protective order with respect to discovery in major criminal cases is utterly routine, but it is also fair enough for the defendant to try to, spar over the precise parameters of it. And so that’s the hearing today.

What is the protective order for? What what is the purpose of the protective order? What is it designed to shield? What are the concerns that the judge has to have about it? Is it about threats to witnesses?

What? I mean, at at a certain point, you know, this is going to be a public trial, why not put everything out there? Might not just, you know, do the full monthly.

So the answer is the obligations of discovery are much broader than the materials you’re actually gonna use at trial. And so the concern is, you know, if you’re obliged to turn over hundreds and hundreds of thousands of pages of material, some of which includes, you know, again, not national security sensitive stuff, but personally sensitive stuff, the home addresses of witnesses who you might never end up calling. Right?

Mhmm.

And so, yeah, everything that’s comes in at trial is gonna become public. But what about all the other stuff? And so the concern is simply there’s a privacy concern. There’s a witness safety concern. There’s just a not making more stuff public than you need to given that all of this stuff is potentially, you know, involves private material?

Well,

one of the reasons I was asking this question is because among the the many unique or close to unique facets of, of this prosecution is the the atmosphere of threat and intimidation that is out there. You know, the threats against Bonnie Willis, the the threats against Alvin brag, the the threats against Jack Smith we’re seeing, I mean, we just saw it yesterday in Utah where the FBI who had a confrontation with a a super manga trump who is threatening not just to assassinate Joe Biden, but a lot of the people who are involved in the prosecution of Donald Trump. Now, Donald Trump can’t be held directly legally liable for all of that. But is this something that has to be in the mind of the judge that This information can and will certainly be weaponized at a moment of maximum tension where the potential for violence cannot be minimized and will be rising exponentially over the next few months.

That is absolutely right, and that is one of the concerns. But even well short of that, you know, in high profile cases, having a protective order to protect unnecessary disclosure of discovery of this type is more norm than accept And so the idea that you would have some degree of protection that prevents a you know, high profile defendant from spilling material out to attack witnesses or to distort testimony. Remember, this is the man who had a phone call with Mike Pence in which he just lied and that, you know, then made a statement in that the vice president and I are in full agreement that he has the power to act, right, after a phone call in which Pence said precisely the opposite And so would he simply lie about what witnesses had said, you know, having a protective order in this situation is just common sense, and I would be stunned if Tanya Chutkin does not enter some kind of a protective order and, you know, resolve the question of the parameters of that protective order on on the side of caution.

But even if if she does do that, e even if she does issue that order, what really does prevent Donald Trump from being Donald Trump from going out and lying about the content of of the witness testimony because you’re right. I mean, you know, there’s a pattern in practice here. That he gets out in front and says, you know, there’s material in there that it completely exonerates me. In fact, turns out that Mike Pence, actually has, you know, told multiple difference. He could just make this shit up and get out in front of this.

You’re seeing this happening up on Capitol Hill with some of the other test money going on with the Biden cases, which I don’t wanna get into, where you have testimony that is characterized that when you actually see the testimony, when you actually hear it, There’s no resemblance to what they’re describing. I mean, can a protective order stop that sort of thing from happening?

It can’t stop it entirely. It can discourage the selective release of information that it covers. Now what happens if he does it anyway. The answer is there’s some, you know, you can be held in contempt. You can be penalized in the contact of the litigation.

And, ultimately, the conditions of release are potentially revocable. So There are remedies, but the judge has to be prepared to use them.

See, in in Trump’s mind though, he’s thinking, okay, you know, his lawyers will tell him all of this, and he’ll say the ad, they wouldn’t dare. This won’t dare. Let them try. What, you you think they’re actually going to, lock Donald Trump up. You know, if it was you or me and we behaved in this particular way, The judge, I said, I’m sorry.

You’ve you’ve been found in contempt to court, mister Willis. You know, bailiff, would you take mister Will Saletan into custody? Because this is what your sanction is going to be. Donald Trump is calculating either a, they won’t dare to do that. Or b, if they do, there will be such a backlash against it that it will, in fact, redown to his benefit.

I mean, in in his mind, he is sort of daring them. Yes. I wanna see how far I can push this. And the reality has been, we don’t know how far he can push it. We don’t know what he can get away with.

Correct. He has never faced a judge and behaved badly enough in front of a judge who is inclined to run a very tight ship.

Mhmm.

In court, remember, he’s only been in court in criminal cases since March. And so there’s not a long track record. This is new to him, and it’s also new to the judges. Right? And so I think what you’re gonna see is as you approach trial in some of these cases, as it gets closer, we’re gonna have some of these cases come to confrontation.

And this is an initial skirmish.

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Alright. Because we have so much ground to cover here, I don’t wanna spend a lot of time on this, because I think I know what the answers are. You know, Donald Trump has made it clear. And his lawyers have made it clear they’re gonna try to push for a change of venue, moving the trial out of DC to where Virginia, and he has suggested his lawyers have not, but he has suggested that he would ask for the recusal of the judge. My guess is that neither one of those is going to happen.

Do you agree? He’s not gonna get a change of venue and he’s not gonna get a change of judge.

Agreed. There’s no basis for he doesn’t like Tanya Chuck in for some reason. That is not a basis for recusal. To my knowledge, she has no record that would require or even suggest a recusal, the chances of a change of venue are near zero.

Okay. So let’s get on to the meteor, to see your stuff here. Okay. Kenneth Cheesboro and the Secret memo. Now the prosecutors have had this for some time, but We hadn’t seen it until the New York Times broke the story on Tuesday of this previously unknown internal campaign memo that actually Again, keeping in mind, the immortal words of Stenger About, are you putting a criminal conspiracy into writing They laid out the plot to use the false electors to subvert the twenty twenty election.

It’s being portrayed as a crucial link in how the effort became a criminal conspiracy And, this memo was referenced in last week’s indictment. And the time somehow got a copy of this, and it is the work of one of the lesser known unindicted coke conspirators. Can it Cheesboro, who is very active here in Wisconsin, by the way. And in this memo, Cheeseburger acknowledges that this ID is a, quote, bold controversial strategy that the Supreme Court would likely reject. But the memo may have been instrumental in stoking all the chaos that followed.

So what what is the significance of this memo, Ben?

Well, so the the significance of the memo is that it is a link in the chain of how this, you know, recruitment of fake electors for purposes of preserving rights in case you prevail in litigation turns into this broader effort, Oak, sort of, to heck with the actual election results. Let’s appoint our own electors and get Mike Pence to accept them instead of the electors that the people actually, you know, elected. And I think it shows that the difference between what you can get as the committee Right? And then what you can get if you have a grand jury and you’re really focused on it. This is material that is new.

And it also, I think, will be a part of the story of the progression of the argument. So the indictment lays out, you know, first, this was an argument related to preserving our position in the event that we prevail in litigation. That’s what the Democrats did in Hawaii in nineteen sixty. And actually prevailed in the litigation and their alternative slate of electors was ultimately accepted. So it starts kind of as that and then kind of evolves into just a pure criminal scheme.

And this is an important link in that chain.

What I found interesting of, but he’s talking about the, messaging strategy that the alternate electors were a routine measure. And, of course, you know, they would like to say, well, this is just politics. This is just free speech, but the indictment calls it a criminal plot to engineer a fake controversy that would derail the proper certification of Biden as president-elect. So from the memo, Cheeseburo writes, I believe that what can be achieved on January six is not simply to keep Biden below two hundred and seventy electoral votes. It seems feasible that the vote count can be conducted so that at no point will trump be be kind in the electoral vote count, unless and until Biden can obtain a favorable decision from the Supreme Court upholding the electoral account act as constitutional.

Or otherwise recognizing the power of Congress and not the president of the Senate to count the votes. So then this resulted in seven lawyers working in seven different states to, you get these fake electors, and the time says it became the cornerstone of the indictment against mister Trump. To this whole question of the fake electors, I was listening to a very interesting discussion yesterday about this and, you know, pointing out that Arizona they actually submitted a forged certificate to the archives about the electors. And I guess I’m wondering, you know, how is this different than any other kind of election fraud? Republicans have been railing against vote fraud.

If you went in and you forged information on your voter registration or if you tried to vote in an illegal way, Republicans would universally say, well, that’s voter fraud. That’s terrible. We had to take this seriously. How are the fake electors different than just voting fraud? The kind of voting fraud that people actually go to jail for if they do it in, say, Philadelphia or or Bulwark?

Yeah. So the answer is at the extreme case, it isn’t different. And this is indicted as among other things, a conspiracy to defraud the United States. Right? And the nature of the fraud at least in part is trying to count fake electors like real electors.

State by state, there is variation in how it is done Right? In some states, there’s this little fine print that says, by the way, only to be used in, you know, if blah blah blah, in some states, like Arizona, it’s really just simple fraud. And there’s there’s no caveats they are actually presenting themselves as real electors even though they are not elected. And I think that, you know, Some of the fake electors in Michigan have been indicted. Some of the fake electors in Georgia have receive target letters, though they may have testified under a grant of immunity, and so they may not be individually charged by Fannie Willis.

We’ll have to see think it’s gonna vary state by state, but you’re actually not allowed to submit to the Senate and the National Archives. A certificate that says you’re the rightful elector of the, you know, the state of Wisconsin if you’re not.

One of the other big stories, the last twenty eight forty eight hours is, turns out the Jack Smith had a search warrant for Trump’s Twitter account. He obtained the warrant back in January Based on probable cause there was evidence of a crime inside of the Twitter account, New York Times reports This is the first known example of prosecutors directly searching, mister Trump’s communications adding a new dimension of the scope of the special council’s effort to investigate the former president. Man, what are they looking for in the Twitter account? I mean, that’s that’s nothing secret. I mean, right, it was out there in broad daylight.

So give me your sense of of what’s going on here. And whether there’s any legitimacy Trump’s complaint. Wait. Now you’re really going after my first amendment rights.

There’s no legitimacy to that. Okay. Your communications are seasable with a probable cause order, and that’s exactly what happened. And there’s certainly probable cause of a crime. I think there’s two possibilities here, and I don’t know which is the correct one.

One is I suppose that there could be some private communications in there that are German and that they had information about, for example, a Twitter DM of some kind. Right? So there’s something that’s not simply the public communications. I think that’s unlikely, honestly, but it’s possible. The other possibility, which I think is the more likely one, and we will have to, you know, wait to see how this material, if it’s used, how it’s used, is just that they were either verifying that there is no such information or that they want the official records from Twitter to be able to put them on try, you know, so in other words, you put on an FBI agent as a witness that says we obtained the following material from Twitter that Donald Trump tweeted.

And then that way, you get all of the tweets into the record that you can then use. So it may be just a a formal mechanism for getting Twitter material into the trial record.

Political is Kyle Cheney who I think, initially broke this story was kind of spitballing, a couple of theories about what Smith might be looking for. He might be checking to see if the relevant tweets came from Trump’s own personal device, whether whether somebody else sent the be peaceful tweets, which I’m not sure how about that would matter. But but also, you know, checking his DMs, his draft tweets, with could also have testimony from Dan Scavino and Mark Meadows about the circumstances surrounding the various tweets that could be corroborated New York Times noting that the special counsel’s office has seized the phones from John Eastman and Jeffrey Clark to the likely undited, co conspirators. So just a little side note. I mean, you know, it’s awfully interesting.

I think that, Elon Musk, apparently fought this and, to the extent, the Twitter was fined three hundred fifty thousand dollars for not complying with the subpoena.

What happens when you fire all your lawyers? Yeah. Exactly.

But but it’s also interesting that Elon Musk always complies with the demands of dictators and oligarchs, you know, if

but not Jack Smith.

Yeah. Exactly. You know, Turkey says, we want you to censor information Elon Musk says, yes, sir. Absolutely. And, you know, and Or

if Russia says, please get this wittest guy, off the site. He’s impersonating our embassy in Washington. The wittest guy is gone.

Are you still gone from Twitter? Or whatever it’s called now?

Yeah. Yeah. I I am permanently banned from Twitter.

Permanentently banned from Twitter. Yeah. There are some of the worst actors in the world. Tour on it.

I know. You know, like, like, you know, I I can’t tweet, you know, footpicks at Rick Grenell anymore. He’s allowed on the site, but I’m not. And, you know, the Russian embassy, you know, they represent genocide in Ukraine. They’re fine on Twitter, but I impersonate them.

I’m off. You know, go figure. It’s it’s Elon Musk.

I wanna take just a couple of steps back from where we are at because, you know, when Jack Smith’s indictment first came down. I think many of us thought, you know, this is a very, very powerful indictment. This is very, very strong. And remarkably broad since then, of course, there’s been, you know, massive pushback from Trump world, including sending his lawyers onto all the talk shows. Over the weekend, known colloquially as, the full Ginsburg.

But you’re also seeing some and I wanna be be nice about this. Some kind of hand wringing from people that we know, from people who have been critical of Trump. And I know that, you know, Jack Goldsmith who served in the, Bush administration as an assistant attorney general and the special counsel to the general counsel at the department of, defense. You see a colleague of yours. I mean, you’ve worked with him.

Right?

Yeah. No. He’s one of the my two cofounders at Lafayette Air and one of my, very closest friends and and I think the world of Jack Old Smith and take all of his arguments extremely seriously.

Okay. Well, that’s why I wanted about this because he has a piece in, the the New York Times this week. The prosecution of Trump may have terrible consequences, and I’ll just read a couple of paragraphs and then get your response. It may be satisfying now to see the special counsel Jack Smith indict Donald Trump for his reprehensible and possibly criminal actions in connection with the twenty twenty presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from mister Trump’s many transgressions, and I’m skipping quite a bit down.

The prosecution may well have terrible consequences beyond the department. What it does for the Department of Justice. For our politics, terrible consequences for our politics, and the rule of law. It will probably inspire ever more aggressive tit for tat investigations of presidential actions in office by future congresses and by the administration of the opposition party to the detriment of sound government. It may also exacerbate the criminalization of politics The indictment alleged is that mister Trump lied and manipulated people in institutions in trying to shape law and politics in his favor.

Exaggeration and truth shading in the facilitation of self serving legal arguments or attacks on political opponents have always been commonplace in Washington These practices will probably be disputed in the language of and amid the demands for special counsels indictments and grand juries. Okay. He goes on, you are familiar with his argument. Here is somebody with solid credentials from the anti trump world saying, Yeah. You know, this whole thing might backfire.

The damage it will do, it will be incalculable. So What thank you, mister Willis, will the prosecution of Donald Trump have terrible consequences?

So it won’t surprise anyone to know that I disagree with Jack about this. Although whenever I disagree with Jack, I take it as an occasion to consider whether I may be wrong because that is the nature of my regard for him. Couple things. One is that Jack himself A lot of the sentences that you read are written in a very tentative way. This may have terrible consequences the charges may be justified.

Right? And I agree that it may have terrible consequences. For example, if Trump is acquitted or if the Supreme Court were to throw out the case, you know, that would be a terrible outcome. And so I don’t disagree with the possibility that this could all backfire. The problem that I have and Jack alludes to this toward the end of the piece is that I don’t really see what the alternative is.

If the alternative is not prosecuting him and letting him walk away having committed the offenses or if you believe that you can prove beyond a reasonable doubt that he’s have committed the offenses that are described in this indictment. Are you really gonna not bring that case out of concern for things that might happen. I don’t think that’s really an option realistically available to the justice department?

Well, you know that I agree with you. And I and I think that, again, we sort of need one column that lays out all of the risks, all of the dangers, and the terrible potential consequences of prosecuting Donald Trump, which are all real. And he lays them out. But you need to have another column, you know, set side by side. What are all of the risks and terrible consequences of essentially saying that Donald Trump should get away with all of this, that he is, in fact, above the law, that there is no accountability that under the law, he can’t be charged when he is the president and, in his post presidential life, he will never also be held for an account.

And that in fact, the impeachment is really a dead letter. There are real risks here. You know, and it is this calculation of risk versus reward, but also risks versus risks. Now, you know, one of his points in terms of just the the political optics here. He says, look, there’s no getting around the fact the indictment comes from the Biden administration when mister Trump holds a formidable lead in the polls, to secure the Republican Party nomination and is running neck and neck with mister Biden.

This is, by the way, is a big line you’re gonna be hearing from the right from Republicans from, Trump world. But, you know, it’s it’s it’s got some validity. And he writes, this deeply unfortunate timing looks political and has potent political implications, even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility as its justice department reportedly delayed the investigation of mister Trump for a year and then rushed to indict him well into the GOP primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against mister Trump, if he is nominated.

This does seem to be at least in terms of the optic, but, This is one of the really unfortunate consequences of Merrick Garland’s slow walk of this, isn’t it?

I don’t know. Like, it seems to me they’re sort of damned if they move full speed ahead because then it looks like they’re gunning for Trump. Right? So they try to follow the regular order and then they get dinged for that on the other end because now it looks like you’ve delayed and slow walk into the election season. I think the answer has to be that if the indictment is justified, then it’s justified.

It was justified a year ago. It’s justified now, and it’s justified a year from now. If it’s not justified, it’s not justified. It can’t be that the Justice department should have been really focusing on the timing back in March and April of twenty twenty one and saying Okay. We’ve gotta get this done quickly enough that it doesn’t look like we’re, you know, in the election season next time.

And remember, Trump accelerated his announcement to create this optical problem. So we have to do it fast enough to avoid that optical problem but slowly enough so that it doesn’t look like we’re departing from the normal order of going doing these investigations grounds up. I don’t think there was a way to do this that people who want it to look political aren’t gonna find that it looks political. The ultimate question is is the indictment provable and is it justified?

Again, there’s two different lenses to look at through. Right? I mean, there is the political lens. What does it look like? How will it play out in the campaign?

And then there is also the more orthodox department of justice legal lens, which which is what you are talking about here. You know, is this the right thing to do? Is there a case? Is it a legitimate case? Should we pursue it, or should we not pursue what we regard as a legitimate indictment because of the political optics.

And remember, the normal way that the justice department avoids the appearance of interfering in elections is to not take overt steps in an election season within sixty days of voting. Right? We’re now talking about a year and three months before the general election and a full six eight months before the first primary. So, you know, you’re not talking about situation in which they’re anywhere near the window in which Justice Department policy says wait be careful here. You don’t wanna interfere in an election.

But now we’ve extended the window to The Republican primary season as defined by whenever Donald Trump announces that he a candidate. Two

years before

the election. With the specific understanding that he’s trying to throw a wrench into the optics of a prosecution. I don’t really want Jack Smith to be playing ball with that, honestly.

Okay. So let’s switch gears. We’ve spent a lot of time on all of this for obvious reasons. What is Aileen Canon up to? What’s going on with the document case?

Earlier this week, she It looked like she was, digging the special prosecutor and, you know, denying his motion to, make some sealed, well, again, you describe what she’s doing and whether you think that it’s, out of the ordinary. She’s also apparently a little bit bent out of shape about the fact that there is another grand jury, which is also, investigating this case. So what’s going on in that case?

Which she appears to have revealed the existence of. Yes. She did. The short answer is we don’t quite know yet because the documents that she has stricken from the record were filed under seal anyway. And so but the government filed some motions that a appeared to offend her for some reason, and she ordered them stricken from the record.

And she also ordered a briefing on the question of whether it was proper for the government to continue using or to use an out of district grand jury to continue investigating this matter post indictment in Florida. This was taken rather badly by a lot of legal commentators. The particular issue at stake is probably not the biggest deal in the world, but it does seem like a kind of minor league judicial temper tantrum that does not bode well, especially for those who are concerned that Judge Cannon is sort of in the tank for Trump. It does seem like a very odd behavior among other things because, you know, the government was doing this. We’re trying to keep this stuff sealed because it has obligations of jury secrecy.

And so she then prevents it from filing under seal and reveals the existence of the grand jury, which is precisely what the government was presumably trying to protect. You know, you can attribute it to the fact that she’s a very inexperienced judge in criminal matters, which is true, by the way. You can attribute it also to the fact that, you know, she does always seem to make stupid mistakes in the same direction. Which is in favor of Donald Trump. However, you interpret it.

I don’t think it bodes especially well for the conduct of the trial in Florida.

So, the latest development is Trump wants his skiff back. What is skiff? This they this secret sealed room. I mean

Yeah. So this is the most ridiculous thing. A SKF is a secure compartmentalized information facility.

Thank you.

Which is where you the only place where you’re allowed to handle classified information is in a facility that is secured for classified information. Donald Trump is accused of having unauthorized possession, and retention of classified information and securing it in a location that is not secure. I the bathroom at Mar a Lago Ron DeSantis stage at Mar a Lago and the storage room at Mar a Lago to which his answer is, okay, well, give me a skiff. But that’s, you know, kind of ridiculous. The re

you know, like — Quebec the currency. —

the response to your committing the crime is not to you know, repeat the crime. Right? You’re not supposed to have access to this information. So it’s, you know, it’s basically a motion to allow me to continue committing crimes.

So next week is the week for the Fulton County, indictments, your colleague Annabauer tweeted that there are signs that next week. It looks like, they’re the grand jury is gonna hand down these indictments. Now witnesses did not get a notice to meet today, Thursday. And the judge is scheduled to serve as, presiding judge next week. And CNN is reporting that Fannie Willis is expected to seek more than a dozen indictments when she presents case to the grand jury next week.

Obviously, we’ll be discussing that next week’s, program. But but your thoughts about all of this and how much overlap there’s going to be with Jack Smith’s case.

Well, there will definitely be a lot of overlap because Jack Smith’s case, of course, involves to a very heavy degree, activity in Georgia that is central to Fannie Willis’s indictment. That said, there is material that she is clearly looking at that is beyond the scope of the federal indictment. She has, for example, sent target letters to the fake electors in Georgia, Jack Smith, hasn’t indicted any fake electors. I don’t think she’s likely to Charlie Sykes. But she’s clearly looking at them or and and I think has gotten testimony from them under some kind of immunity grant.

She is clearly looking at some of the people who assisted the president. She is for example, sent Rudy Giuliani a target letter, which, you know, he’s a coconspirator named coconspirator in the federal indictment, but has not yet been charged. I think you’re also likely to see some of the other co conspirators at the federal level charge in this in a fashion that is maybe coming in the federal case, but hasn’t happened yet. And then there are some odd events that are very Georgia specific. For example, there is was some computer intrusion and theft of material in a in Coffee County that I think probably does not, at least that I can tell, has not attracted any particular federal investigative interest, but Fannie Willis at least according to some press reports may be interested in.

Yeah. This is gonna be ugly that, by the way, that’s not breaking news that, the Trump is gonna make it as ugly as possible. But Once again, he continues to, to push the edges here. He was in New Hampshire this week. Trump calls, Fannie Willis racist.

Something he, by the way, he always uses we we have signaling And

he never calls white people.

Yes. No. No. They’re they’re all racist if they happen to be a black person.

Jack Smith is deranged. He’s mentally ill,

but

he’s not racist.

Right.

But Alvin Bragg and Fony Will Saletan racist And one assumes that means because they’re black prosecutors prosecuting him.

Tanya check-in with, you know, her time in the in the races barrel will be coming. Yes. You just know it, and that’s his card. But he went beyond that. So Trump calls her, he’s attacking her as racist, and then he claims she had an affair A sexual affair, romantic affair with the head of a gang she was prosecuted?

I had missed that.

Which as far as I can tell, is complete Bulwark, completely made up. Now she’s got the dilemma of basically saying it’s completely not true. She wrote a memo to our staff saying let’s not respond to this. There’s no truth to it whatsoever. We don’t wanna get caught up in the the food fight.

But once again, you have Donald Trump and it’s sort of debating. Like, you know, if I have you denying that I win, right? So they’re actually running out an ad bankrolled by his campaign. They’re running a television ad in Atlanta, repeating the gang leader story. Now, again, funny Willis is saying this is false and derogatory, But the ads titled the fraud squad, and the narrator calls her Biden’s newest lackey.

So You know, not a surprise that Donald Trump is attacking judges, that he’s attacking prosecutors, etcetera, but He’s almost need to take a deep breath and go, you know, but every week it seems that he escalates it. So it’s not just same old same old what’s been in the past may have set the pattern of it, but this is gonna be just incandescently shitty.

It is gonna be incredibly ugly. He is going to escalate and escalate and escalate until some higher power makes him stop. Right now, there is no case in Georgia. Right? So he’s not if you’re attacking the prosecutor who hasn’t indicted you, There’s no court.

You can go to complain about that unless, you know, as Fanny Willis, you’re going to, you know, sue him for libel, which, of course, she’s not gonna do. But again, once there is an indicted case and there are conditions of release and there are, you know, orders from the court to not contact or threaten witnesses or, you know, court officials or prosecutors, then there are potential remedies for that sort of thing. But to see the earlier part of this conversation, somebody has to be prepared to enforce them. I will say that the judge who has supervised the special purpose grand jury, Judge Mcburney, has impressed the heck out of me. He’s a He’s a very serious judge.

And, you know, we in the federal system, people sometimes scoff at, you know, mere state judges. Judge Mcburney is a first rate judge. I don’t know if he will be assigned to this case or not, but I would not want to tangle with him if I were Donald Trump just based on my observations of his handling of the special purpose grand jury, I I think that would he might be the wrong judge to mess with in something like this.

Well, we don’t know whether this is gonna make a difference. This is gonna change the dynamics of, of our politics that seems to be unlikely. I think at this point, we’ve figured out what the Republican base and the Republican party is willing to tolerate. I don’t know if there’s gonna be any, new information. A lot of speculation that she’s going to be bringing, racketeering charges, which which, by the way, you know, makes, quite a resume for Donald Trump, you know, conspiracy conspiracy, obstruction espionage, and racketeering.

It’s just, like, put that on on your business card. One thing that will be different next week down in Fulton County is the sheriff is making it quite clear that, yeah, Donald Trump is charged and he is arrested in a ring. He’s gonna get a mug shot. We are going to get the Donald Trump mug shot. That’s coming.

And the the world will be a better place for it. I will say people are gonna make a big deal about the Rico thing partly because

— Yeah. —

there’s so much, great mythology about Rico. The Georgia Rico law is a hell of a lot broader than the federal Rico law and Fony Willis has used it she’s described herself as a fan of it, and she used it. Some people may remember the Atlanta public school teachers cheating scandal where they they basically fudged test results. To keep up the Fulton County scores in national testing standards. And Fony Willis, use as an assistant DA used the Georgia racketeering law to prosecute a whole bunch of people who were involved in that and got convictions significant sentences on a bunch of them.

So, this is a statute that she likes. She has retained the services of a prominent expert on the subject for purposes of this investigation. Who she’s worked with before. So I think the possibility of a Georgia Rico component of this indictment is, nontrivial.

So next week’s, episode of of the Trump trials, we may be spending a lot of time talking about Rico and racketeering, and I am looking forward to that, Ben.

I am looking forward to it as well. I will be joining you from from some Northern European place where I will be harassing Russian diplomats, with lasers, but I will take a break to join you and to chat about you know, all kinds of, indictments that may have come down between now and then.

Well, stay tuned for that. And thank you all for listening to today’s Bulwark, podcast, our latest episode. Of Trump trials. I’m Charlie Sykes. We will be back tomorrow, and we will do this all over again.

Bolebrook podcast is produced by Katie Cooper, and engineered and edited by Jason Brown.

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