Wait, Is This Guy a Freakin’ Criminal?

How much legal trouble is Donald j Trump really in? Are indictments imminent? What will the charge B. Will it make any difference in the race for the presidency? Welcome to the Bulwark podcast.

I’m Charlie Sykes and this is our new episode of our companion podcast, the Trump trials we feature every Thursday in partnership with Law Fair. And joining me again this morning, Law Affairs editor in chief Ben Whitis, the author of the invaluable dog shirt daily newsletter. Ben, welcome back.

Thanks. It’s it’s been a big week.

And it’s going to get bigger, especially when we have signs of the apocalypse over New York City, do you have the smoke in DC?

I believe right now the air quality in DC is even less healthy than in New York.

It is amazing.

And although the sky’s a little bit less orange, I think, I just wanna say that if I were Donald Trump, I would be pointing out that the justice department is contemplating or preparing for my indictment and the heavens have darkened in response.

Okay. That would be one interpretation. I mean, there there’s a lot going on right now that’s very, very strange. I mean, we have this conservative revolt in the house, which has resulted in they wanna punish Kevin McCarthy. And so they’ve shut down Congress.

That you basically just put it out of business. So that’s one story. Meanwhile, the Ukrainian counter offensive long awaited is apparently on Pat Robertson and icon of the Evangel cohort died at the age of ninety three. And as a sign of times, we had a republican candidate for president, Aissa Hutchinson. Who felt it was necessary to issue this clarification I’m gonna read this to you then.

The GOP should clarify that there is no pledge to support a nominee if they are found guilty of espionage or a serious felony. Donald Trump is the target of an ongoing criminal investigation and he should step aside and put the good of the country above his candidacy. So, yes, you have the former governor of Arkansas raising his hand saying, hey, by the way, could we just clarify them? If you’ve actually been convicted of espionage or a serious felony, we’re not really obligated to support you. I mean, you think?

You know, it’s one of those things that you wouldn’t have thought you needed to say. Exactly. But I do think it’s a good challenge to Romney McDaniel’s — Mhmm. Who does seem to be taking the position that all Republicans in good standing are obligated to support the candidate of the party even if that person is facing multiple felony indictments.

Okay. So we’ll talk about Mike Pence’s fancy dance about all of this a little bit later, but let’s just dive right into this. We have multiple outlets reporting that Trump’s lawyers have been told that he is the target of this investigation into the Mar a Lago classified document case, is an indictment imminent. Mister Willis?

Yes. It is imminent. And I think the signs of that are very clear. First of all, multiple press reports have indicated that Trump received a target letter

— Mhmm. —

for those who are not familiar with the way federal prosecutors Bulwark, you only issue a target letter to somebody who you have already made decision that you intend to indite. That’s actually the meaning of the phrase target in this context is somebody whom federal prosecutors intend to seek a grand jury indictment of. And so to report that Trump has received a target letter, is to report that federal prosecutors intend to bring a case against him. Secondly, as a general matter in federal practice, a target letter precedes an indictment by a short period of time. It’s not like you issue a target letter and then you do the investigation.

Generally, prosecutors will keep people as what are called subjects of an investigation for as long as they can. A subject of an investigation is somebody whose conduct is at issue, whose conduct is under investigation at some level, but who’s not merely a witness, but there has been no decision to charge them. Once you are a target, they intend to seek an indictment of you, and they usually move you to target status right before they bring the case. The final piece of evidence that an indictment is imminent is this meeting that took place on Monday. Mhmm.

Normally, when you designate somebody as a target, in a white collar investigation anyway where there is no flight risk or no fear that the person’s going to go on a mass shooting or something. You give their lawyers a chance to come in and try to talk you out of it. And from the prosecutor’s point of view, this is a device to preview some of the defenses you’re going to see at trial, you see what the best argument they can make is and maybe that causes you to strengthen the way you frame your case or something. That happens as a general matter immediately before an indictment. So I think the fact that that meeting happened this week indicates that we are looking at an indictment this week or next week if I had to guess.

So

when you say imminent, you’re not using that word in the way that Fulton County d a, Fony Willis used it when she said back in January that her charging decisions were imminent and Of course, it’s June now. So imminent means, like, today tomorrow soon. Any minute now.

Right. So Fanny Willis used the word imminent I think to mean coming soon and then realized she had a lot more investigation to do. I think she misspoke or something got in the way. But that is not the sense in which I mean imminent. I mean imminent in the dictionary sense of the term, which is about to happen.

Okay. So I’m gonna break this case down. Big question this week is, why has the venue been shifted to South Florida? We’re getting these reports from the Washington Post that looks like that is the focus of the indictments. What is Jack Smith doing?

Why are the two grand jury’s looking at the same case and where will the charges come from?

We don’t know the answer to the why or internal discussions question, but we can speculate about it a bit responsibly, I think, based on what we know. So venue is a complicated subject and the law, and I don’t want to go into the details of it. There’s an excellent article on law fair about venue in this case that was written by one of the, among other people, by one of the Mueller prosecutors, Brandon Van Grack, that people should take a look at if they want the details on venue in this instance. But suffice it to say if you are a federal prosecutor, you would like to bring this case in Washington if you can — Mhmm.

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the district bench in Washington is of a very, very high quality, as we saw with Judge Eileen Cannon and South Florida, the district benches of a little bit more erratic quality. Just In addition, the jury pool is more favorable to prosecuting Donald Trump in the district than it is gonna be right near his home in Mar a Lago. That said, as a general matter in federal cases, you gotta bring the case with a certain degree of latitude where the crime took place. And there are parts of this case that took place in DC. For example, if Donald Trump per loined material from the White House or lied to narrow the National Archives in letters that were sent to Washington, you can say, well, alright, that’s DC.

But the gravamen of the activity in the case the storing hoarding material at Mar a Lago, the obstructions of the federal investigation the showing the documents to people all appears to have taken place in South Florida. And so what I, in fir has happened and this is an inference based partly on the Washington Post reporting and partly on my own instincts. We know that at some point, mister Smith, determined that he was gonna have to bring a bunch of the case in Florida. I think that is probably was reluctant on his part that he he probably spent some time trying to figure out whether he could approve venue in the district ultimately decides that he can’t. The entire investigation was done here before a grand jury, and so you then have to open proceedings before a grand jury down there if you’re gonna bring a bunch of the case.

There. That seems to have happened in May. And I expect that they will bring the body of the case there, but anything that they can bring in DC, expect that they might. So that’s my best guess.

So there could be indictments coming both from South Florida and from the grand jury in DC.

It’s certainly possible particularly if you have evidence that related to the removal of the documents in the first place, as well as to say, false statements to the National Archives. Right? There are individual components of the case that may be more appropriate in the district.

Okay. So let’s break down again, we don’t know what the exact charges will be, and maybe people by the time listening to this podcast will know this. So I thought that Andrew Weisman and Ryan Goodman from Just security did a nice job of sort of breaking down ten things to look for if Trump is indicted by the DOJ eleven things to look for, including the distinction between retention versus dissemination. I mean, let’s just talk about some of these. Whether or not he’s going to be charged just for having the documents or whether or not the dissemination is going to be a key element of the case.

So The espionage act prohibits three different things that Trump could be accused of. One is the taking of documents. Right? So if you are a government employee, including the president, and you are not entitled to remove the material from a classified setting and you know, if you’re president, you get to do that because anything you do is okay. But if you’re the ex president, you don’t.

Right? And so there’s this point at which they remove a whole lot of documents from the White House and they bring it to Mar a Lago. Now the first question that I’m looking or is was that removal intentional? Mhmm. Were three hundred classified documents mixed up in stuff that they were moving, and it an accident, and it was done at the staff level, kind of like what appears to have happened with Mike Pence and probably what happened with Joe Biden as well, though we don’t have resolution of that.

Or was this trophy hunting by Trump or was it stealing stuff for some other reason. Right? So were the documents mistakenly removed not a crime or were they stolen

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Mhmm.

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a crime? That’s the removed taken issue. The retention issue is a separate crime. Now it’s all these are all in the same statute.

Right.

But they could theoretically be charged separately. If you take a bunch of stuff by accident, we pack up all the boxes, the classified documents are in the material like with the White House souvenirs and the the other documents and the the MAGa flags. Right? And you pack them all to Mar a Lago, and then you’re unpacking and you discover, oh my god, there’s three hundred classified documents here. You have a positive obligation to give those back.

So what happens when you discover that you have them, if you discover that you have them, and you don’t return them? That’s the retention issue.

Mhmm.

A subcategory of the retention issue, which is the area that we know they are extremely vulnerable. Is, at some point, the National Archives gets in touch and says, wait a minute, we think you have a lot of national security information. You need to return it all and they willfully do not return some of it. Mhmm. I don’t have the statute in front of me, but there’s specific language in the statute about retention when you are required to return it.

That’s a third possible espionage offense. And then the most serious of them because it’s the one that actually looks like spying.

Right? Mhmm.

Is dissemination of the material to third party. Because remember, if you think about what the espionage act is about, it’s about protecting the material from dissemination. So the reason you are not allowed to take classified material home is not that they’re afraid that you know the class material because you were cleared to know the classified information. It’s the possibility of dissemination. So dissemination is really the completed problem that the whole statute is designed to prevent.

And there are basically three types of dissemination. The most serious, which is called espionage, is dissemination to a foreign government or actor. Right? That’s spying. I don’t think that Trump is suspected of that, though there’s clearly been some investigation of some matters that relate to like his business deals with the Saudis and stuff.

That said, there’s been no evidence that I’ve seen of dissemination to foreign governments. Right. The second area is general spillage. You give it to the press.

Mhmm.

Right? Dissemination, That’s the classic leak situation, right? You have classified information and you give it to the New York Times. And then the third area, these are legally the same, but they’re functionally a little bit different, is that you give it to some individual who is not entitled to receive it, who’s not cleared. And it’s very clear from the tape that has been described in the press that Trump at least contemplated doing that, it wanted to do that.

That he knew that it was not proper for him to do it. It will be very interesting to see whether the charges include any dissemination allegations, that would be a much more serious offense than mere retention.

Well, another possibility of course is that Jeff Smith could decide not to chart under the espionage act and charge only obstruction offenses. And obviously, that would differentiate Trump’s prosecution from the facts in the Biden and the now closed tense investigations. Which involve improper possession. So it is possible that he would go just for obstruction. Weisman and Goodman right, Wild card up the justice department alleges that Trump or his aids were involved in tampering with Mar a Lago video surveillance footage.

That is as acute a form of obstruction of justice. As the allegedly false June certification that represented that a diligent search for responsive documents had been performed and all of them had been returned. So it is possible and again, these things are to watch, does he charge under the espionage act, or could he just go for a slim down obstruction only? Anything.

So I think it’s very unlikely that he would go for obstruction only. Mhmm. And, frankly, in my view, it would be a sign of weakness. So, as a general matter, a prosecutor wants to and should, want to charge the most serious offense available to him that he can prove beyond a reasonable doubt. And if you have evidence that Trump is hoarding classified material and refusing to return it, I don’t think you want to charge obstruction and leave out the substantive offense.

Then you get you set yourself up for lots of national review type saying, this is just a process crime. Right? They couldn’t prove the espionage act stuff. So they got him on some one thousand one lies or you get the Mike Flynn argument. Right?

And I think that’s undesirable. I think if you’re Jack Smith here, what you’re looking for is to deliver a barn burner of a case. And to me, again, based just on the press coverage and the information that we know they have been seeking, and the testimony that they’ve been taking, I think the case looks something like this. Donald Trump, Will Saletan unwillfully. I’m not sure which, absconds with hundreds and hundreds of pages of classified information.

He boasts about it to people. He maybe shares it with people, dissemination. We don’t we’re not sure about that. We know he boasts about it to people. He is personally involved we think in the hiding of this information, then when Nara comes to get it back, at his direction, they lie about it.

Mhmm.

And they contend it has all been returned when they know that it has not. And they take active, obstructive steps to prevent both Nara and then later the FBI and Justice Department, opt to and including I don’t know if they’re going to be able to prove this, flooding the camera room with the Mar a Lago swimming pool water.

The Rosemary Woods movement.

Exactly. So I think if you’re Jack Smith, you don’t want to be Alvin Bragg here. You want to come in with a case that Andy McCarthy is not going to be able to say this isn’t serious.

Right? So you’ve anticipated my next question was that what you’ve just described what’s known as a speaking indictment. Right? I mean, Alvin Bragg just sort of list you broke these laws, these all these laws. You think that Jack Smith needs to lay it out.

And I agree with you here because At some point, you need to explain to the American people why this is happening, why it is important that it’s happening, what the stakes are, and they need to have a narrative. And so that is the speaking indictment. That’s one of my big questions. Will he do what Alvin Bragg did with just listing the the statues essentially, or is he gonna do exactly what you described? Tell us this story of what Donald Trump did.

He will certainly not do what Alvin Bragg did. And there are two reasons for that. The first is that what Alvin Bragg did is sort common in New York — Mhmm.

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prosecutorial practice. I’m told by people who’ve worked in that office and who’ve practiced in New York. But it’s not common in federal practice. In federal practice, when you’re dealing with a high profile individual you lay it out. You call it a speaking indictment.

That’s sort of what prosecutors call it. In this case, You don’t want to behave politically as Jack Smith. You really, really don’t. You want to be extremely responsible. But you also have to be aware that it’s not just a speaking indictment that you want here.

It’s a speaking to Republicans indictment.

Mhmm.

And what you want to do is put enough facts on the record. Tell the story in clear and full enough way that it breaks through so that on Fox News, they have to have the conversation. Wait a minute, is this guy a freaking criminal? And that is something that Alvin Bragg has not been able to do. Although the entire conversation was about these supposed defects in his indictment and the charging manner.

Here, I think you want this indictment not just to speak, but to speak really loudly. And that means it has to be fact perfect. Anything in it that you can’t prove is going to come back and bite you in the ass. But it also has to be fact rich.

Laying out the evidence because and we have a lot of hard evidence. The audio recordings, the written documents, the emails, the letters, the notes, all of that. Every fact has to be true. It would this a speaking indictment can provide all.

And it should read like a novel. Okay. That’s how I would be thinking about it. But look, he’s a federal prosecutor and I’m not.

So the other things that we don’t know at this point, we don’t know whether or not there is a conspiracy whether other people will be charged as part of this. That is certainly conceivable, especially now that they’re moving the venue to South Florida. But the big questions Still also are what exactly is in this classified information? We have some hints, we don’t fully know. And finally, what is the motive?

Why did Donald Trump do this. What was so important for him to put himself in this legal jeopardy, which he probably didn’t expect, So what is in those documents and why did he keep them? And I think that’s going to be relevant because if it turns out that there are a bunch of nothing burgers and stuff, you know. I mean, obviously, gonna have we’ll generate certain blowback. On the other hand, if it does turn out that they are military plans or that they are records about nuclear capacity.

I mean, that’s a BFD, and that will be much, much harder for the Fox News folks to dismiss as trivial.

That’s right. And I also think that the why question is really important. So, you know, the whole thing has an air of silly trivia that got out of control. If this is his love letters with Kim Jong Un that he keeping for sentimental trophy reasons, then if there are substantive documents that he’s keeping for reasons that he has something he wants to do with them. And the the one of the significant features of the conversation about the Iran war plans document was that he seemed to be retaining this material, having retained this material, he wants to use it for Mark Meadows’s autobiography.

Right? He wants to use it for some strategic purpose. That is really, really a no no. Right? The ultimate no no is you wanna use it to give to foreign governments in exchange for two billion dollars for your son-in-law.

Right? But I don’t actually believe that’s what happened. But what he was doing with them, were they just sitting in his desk Or are there a number of instances like this Meadows autobiography where he’s using where he’s talking to people about what he wants to do with them, what the purpose is. And I think that motive question will shape a lot of the way the indictment is presented to the extent that they know the answer to it.

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So, one thing you mentioned a little bit earlier is kind of haunting me to go back to this change of venue to South Florida. Could this case be heard by Aileen Tannon? The super trumpy judge who embarrassed herself earlier on this case?

It is more than theoretically possible. But, of course, they are very aware of Aileen Canon because a lot of this was before Special Counsel Smith was appointed, but they were the victim of her antics. So I imagine they will, if they can, without, you know, you don’t want to look like you’re forum shopping, and you don’t want to create arguments for Trump that will then delay things about whether you’re in the right court. So what I think it’s fair to say if they can avoid filing in her courthouse, they will. If they cannot, they will have her to deal with.

Hopefully, she has learned a lesson from the absolute spanking that the eleventh circuit, that the conservatives — Yes.

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on the eleventh circuit, including chief judge Pryor, gave her in response to her prior behavior, but I would not relish being the office of special counsel having to try this case in front of judge Cannon.

So we also mentioned Mark Meadows, and there was a lot of speculation, a lot of rumors yesterday, unconfirmed rumors that he might have flipped. What we do know is that apparently, he did testified before the grand jury on the January sixth case. He would obviously also have information about the documents as well. I think it’s pretty obvious how important it would be if they actually had the cooperation of Mark Meadows because by every account, Mark Meadows was in the middle of everything. And when I say everything, I mean from the end of the election through January six, being in the room, knowing what people were, saying what they were thinking, why those documents were moved out.

So what do we know and what do

we not know about Mark Meadows? So we know relatively little, we do know that he testified. Now there are many levels at which one can be said to be cooperating. So one level of cooperation is you get called in front of the grand jury and you answer questions and you don’t lie, right? And if that happened, a lot of the issues that you’ve described are satisfied.

Right? Mark Meadows is probably the single most important witness in the January sixth matter. He’s much less important in the Mar a Lago matter, but he’s a very important January sixth witness and potential defendant, by the way. So, you know, if he shows up at the grand jury and answers questions, that’s a big deal. Unlike the January sixth committee, people notice are not stiffing these grand jury subpoenas.

And the reason is civil contempt.

Mhmm.

Right? So the January sixth committee can hold you in contempt then it needs the justice department to file a criminal case to enforce it. That’s not true of a grand jury. If you refused to appear before a grand jury. The judge will send the Federal Marshals to arrest you and lock you up in jail until you cooperate.

And, you know, some of our listeners may be old enough to remember Susan McDougal going into contempt

— Gosh. Yeah. —

rather than testifying against Bill Clinton and she spent, you know, like a year and a half in jail or something. And so it’s easy to bluster when the January sixth committee calls you to testify or subpoenas you to testify and just not show up and kind of roll the dice and see what happens. But in the criminal context, you know what’s going to happen if you stiff a grand jury. And so when Push comes to shove, Mark Meadows doesn’t do it. That doesn’t mean he is volunteering information Right?

It doesn’t mean he’s cooperating at the level of I know stuff, I will tell you. It merely means he’s cooperating at the level of not refusing to answer questions and answering them truthfully when asked. So I think we really don’t know what the story is with Meadows at this stage.

No. I don’t think we do. The British newspaper, the independent, had an unconfirmed story challenged by a lot of other sources that Meadows had cut some sort of a plea deal, the plea guilty to certain offenses in return for immunity on others. So later in the day, and again nobody replicated that. There were a lot of denials about that story.

And the journalists for the independent tweeted out later Wednesday that he’d spoken to Meadows’s attorney who denied that Mark Meadows would and are guilty plea, but he did not address the question of immunity. Okay. So let’s just move just for a second. I wanna talk about where we’re at on January sixth. We had the former vice president Mike Pence yesterday who gave a rather strong denunciation.

Of Donald Trump’s conduct on January six, you know, forcing him to choose between the constitution and the loyalty. It was actually one of pence’s strongest statements. But then later in the day, he’s sitting down with I think he’s standing up in this particular case, with CNN’s Dana Bash at one of their town hall meetings. And she’s pressing him on the question of, okay, you said that he is unfit for office. What about word that we’re getting now that an indictment might be imminent?

What do you think about that? And this is how Mike Pence is trying to walk this tight rope?

This kind of action by the Department of Justice, I think would only fuel further division in the country. And let me also say I think it would also send a terrible message to the wider world. I mean, we’re the we’re the Emblem of democracy. We’re the symbol of justice in the world. Indeed, the the serious matter, which has already happened once in New York.

I’ve been dating a former president in the United States, sends a terrible message to the world. I hope the DOJ thinks better of it and resolves these issues without an indictment.

Sir, I just wanna clarify, what you’re saying is that if they believe he committed a crime, they should not go forward with an indictment. You just talked before about committing to the rule of law.

Let me be clear that no one’s above the law. Okay. But with regard to the unique circumstances here, look, those classified I had no business having classified documents in my residence, and I took full responsibility for it. President Biden had no business having him in his residence from when he was vice president as well. And the same with former president Trump.

But I would just hope that there would be a way for them to move forward without the dramatic and drastic and divisive step. Of indicting a former president of the United States. We’ve got to find a way to move our country forwarder and and restore confidence in equal treatment under the law in this country.

So, Ben, what do you make of that?

Well, there are two important things that Mike Pence didn’t say in that. One is, does he think Donald Trump committed a crime? Mhmm. And notice that he didn’t say, I don’t believe Donald Trump committed crime. The second thing he didn’t say, and he struggled with this.

And Dana Bash kind of calls him on it is — Mhmm.

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are you saying there should be impunity for former presidents when they commit? Crime.

That’s a great question.

And his answer is I would hope there would be some other way to resolve it. Well, I actually don’t. I think it’s a good thing that we’ve never had to prosecute a former president before. By the way, The only reason it’s true is that Richard Nixon was pardoned by Gerald Ford, Jaworski was prepared to indite him and the grand jury wanted to indict him. So Nixon certainly would have been indicted, but for a presidential pardon, So, the rule is a rule with certain important exceptions, and of course two former vice presidents have been prosecuted.

Spiro Agnew and Aaron Burr — Mhmm.

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at least. So I don’t think the rule is quite as firm as Kent seems to say it is. But look, to the extent that it is, I am grateful to the forty four other non criminal presidents who did not commit crimes after they left office. And to lay that at the feet of prosecutorial restraint assumes that there was this sort of unprosecuted crime wave among former presidents. Well, I just don’t know what did Ronald Reagan and Jimmy Carter do after they left office that warranted prosecution in his years out of office was Harry Truman, you know robbing liquor stores.

You know, come on. And so, like, most presidents don’t live that long after they leave office because they tend to be the be older. They don’t tend to be engaged in crime sprees. Donald Trump leaves office, and he’s committed multiple felonies. Since leaving office?

Is Pence really suggesting that should be merely subject to political criticism? So I I have some sympathy for the predicament Pence finds himself in, where he did a courageous thing and is loathed for it by Trump’s supporters, he wants to appeal to those supporters, which is of course a fruitless endeavor, so he can’t be as full throated about the denunciation of Trump as you sort of suspect he would like to. Yeah. That said, he talks himself in bizarre circles and what he’s saying doesn’t really make any sense.

No. And I think that was one of the problems that he had last night, and he was challenged on this by Dana Bashu again. Did a really, really good job last night. So on January sixth, he was very, very forceful earlier in the day. I mean, he said some of these things but he said president Trump’s words were reckless.

They endangered my family and everyone at the capital. But the American people deserve to know that on that day, president Trump also demanded that I choose between him and the constitution. Now voters will be faced with the same choice. I chose the constitution and I always will And then he says anyone who puts themselves over the constitution should never be president of the United States. And anyone who asks someone else to put them over the constitution should never be president of the United States again.

And then later in the evening, he is asked by Dana Bashwell, would you support him if he’s the nominee? And Mike Pence, who has claimed that he was a Christian, a conservative, and a Republican in that order. Basically says, yeah. I’m a Republican first. I’m gonna put on the Jersey because party loyalty over everything.

And I would support Donald Trump for another term in office, if he wins the nomination, how do you square that circle? And who does he make happy by doing this? Because mega world is gonna hate him no matter what he says. Chris Christie is like, okay. I got nothing to lose.

I’m gonna throw this out there. If I say you’re completely unfit for office, I’m meaning that you’re completely unfit for office. But Pence and other Republicans are sort of still dancing around that. He’s between a rock

and a hard place on this, but he’s wedged himself. He’s pretty himself there.

Yeah.

And so it’s hard to have too much sympathy for him. He also doesn’t ever acknowledge that the choice that Trump demanded of him on January sixth choose between me and the constitution, that’s the same choice he gave Jim Comey at the loyalty oath dinner. And Mike Pence, when that came out sided with Donald Trump. There are a million incidents over the course of the Trump presidency in which he put people in the position of choosing between the constitution and him. And Mike Pence did not really have a problem with it, until it was him on January sixth.

And I honor what he did on January sixth. I really respect it. But I’m also bewildered by the fact that it took him until January sixth to notice what Donald Trump was doing and to his pretense that the Trump administration, what he likes to call the Trump Pence administration, was this honorable and effective and serious thing until the day it put him in that position, You know, what did you What about Helsinki?

So here’s an interesting thing that’s going on with Mike Pence, and why it’s so difficult to sort of parse out where he’s going, where he thinks his lane is here. Because, again, yesterday, he was very, very strong on January sixth. And then in the evening, he was saying he would support him anyway, and we shouldn’t be indicted. But then this morning, I don’t know whether you’ve seen this. The Penn’s super pack has put out an ad, hitting Trump And it is a remarkable ad.

Part of the script here is a weak man that pieces a mob, a man of courage and character stands up of them. That day, one man failed the test of leadership while another stood tall. I mean, it is a direct attack on Donald Trump juxtaposing the two. This is the Penn super let me just play the audio of this because this is the kind of thing you might have expected say the Republican accountability project or something like that. And yet Mike Pence is launching this ad.

So he’s doubling down on making one sixth central to his attack on Donald Trump let’s play the audio of this.

A president begging him to ignore the constitution a mob, shouting for him to die, and an anxious nation watching for one man to do what’s right. A weak man, a piece as a mob, a man of courage, and caret, stands up to them. That day, one man failed the test of leadership while another stood tall, and since then, This so called leader has continued to abandon our conservative principles. Now with a Wokamaw trying to take away our freedom, we need a president who won’t flinch, who won’t try to cut deals with our values, a president with the courage, and the faith to lead us through turbulent times and keep America the beacon of freedom for all mankind. Mike Pence, for present, Commmitted to America Pack is responsible for the content of this advertising.

So damn. I mean So I

think that would that would be terrific ad for Liz Chase. Mhmm. All the praise of Mike Pence for what he did. But the problem with that ad for Mike Pence is that first of all, this Republican primary is not going to be won by campaigning on having done the right thing on January sixth. It’s likely to be won by people who record videos with the January sixth convict to Tabernacle choir, it’s not gonna be won by saying I did the right thing on January sixth.

Moreover, it only begs the question, then why have you done so little since then? Why have you tried to keep a foot in both worlds. Why why aren’t you Liz Cheney?

Yeah. Why did you not testify before the January six committee? Why are you still saying you would support him in a general election? Look, I’m glad he’s running this ad. Somebody ought to run this ad.

I think it’s a good ad. So pat on the back will give him a cookie for that. But I do think you’re right, and I think that you’re gonna see that playing out. He just has such he’s almost schizophrenic when it comes to this issue because at moments like that, listening to that ad, he recognizes one of the central moments in his history and the real dividing line between him and Donald Trump. And then the rest of the time, He has been backpedaling and he’s been distancing it and he he goes back and forth on it.

I mean, there’s a real vacillation. Am I going to embrace that moment and explain how important it was? Yes, sometimes. Will I back away from it? And downplay, which should be my signal moment in my legacy, and he does that too.

So who is he satisfying with all of this? But again, I’m glad he’s running the ad. I agree with you. That’s not gonna win in my But you know, it is interesting that over the last forty eight seventy two hours, you’ve had Republicans punch Donald Trump harder than they have punched him in six years. I mean, we have not seen anything like what Chris Christie did to him and we have not seen any other Republican other than say Adam Kinzinger and Liz Cheney, go after Donald Trump on January six.

So maybe we’re entering into I don’t know. I mean, maybe it’s gonna be the same old same old We have the indictments that are imminent. We don’t know what the fallout’s going to be. Whether or not the cumulative weight of that is gonna weigh them, But we are seeing Republicans willing to punch at Trump in a way that was not totally predictable, that they would hit him and hit him this hard.

I agree with that. I also think the Georgia case matters here for a very specific reason. So we don’t know what’s happening with the Federal January sixth investigation. Unlike the Mar a Lago investigation, it has been something of a black box. Yep.

We We see people going in to testify. We kind of contract the subpoenas a little bit, but we really don’t know where they are. We do know where Fannie Willis is even if she doesn’t quite understand what the word imminent means. We know she’s bringing charges this summer. Because she’s essentially said that.

So I think if you imagine that this indictment in Mar a Lago comes out, and it is some kind of a barn burner that tells a real Mar a Lago classified document story. And then a month and a half from now, you get an election interference story focused not on January sixth, but on efforts to overturn the Georgia election. You are going to have two Republican candidates in Pence and Christie in particular. Chris being much more pugilistic and full throated about this, making the case of Trump’s unfitness even as three different prosecutors in three different jurisdictions are telling the story with admissible evidence.

Yeah.

Of his behavior post presidency of his behavior after the election and of the scuminess of his behavior toward paying off porn stars.

And also I think that the conventional wisdom nothing ever matters. But there’s some polling data that would suggest that maybe some of this could change the dynamic. So For example, I think you got a Hugo of poll recently kind of a deep dive, and this relates to a second Trump indictment. Sixty five percent of voters Say that taking highly classified documents and obstructing efforts to retrieve them is a serious crime. That’s a big number.

Two thirds of Americans think that’s a serious crime. Sixty three percent say that committing a serious crime should disqualify a candidate. Fifty percent say both of those things. So the electoral threat of another Trump indictment is a real thing. And you are seeing You know, I mean, so But again, we don’t know.

This is to say its uncharted territory is understating it rather dramatically.

Right. And and there’s a very important element of the public opinion data that we don’t have. We have seen Trump’s resilience

—

Yeah.

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against investigation.

Mhmm. Mhmm.

And, you know, the whole Russia investigation, the impeachment stuff. But we have never tested what happens when you actually have a prosecution of Donald Trump and how that affects public opinion. And I don’t know the answer to that. I’m not saying there’s a breaking point after which he gets abandoned. I’m really not saying that.

I am saying that a federal prosecution for multiple felonies — A whole

different animal. —

is a very serious thing. And it will occupy a lot of mind space. And it’s different from the Mueller report coming out and him declaring total exoneration and people like you and me reading it and saying, wait, wait, it’s a little bit more complex cheated than that. There’s these damaging facts and there was a Trump Tower meeting and Trump Tower Moscow race. And all of that stuff gets lost.

But when you have the federal government bringing a criminal case against you, I would not be surprised if that actually had an effect on people’s perceptions of electability. I don’t

think we should rule that out. Okay. One last question about this January sixth investigation, which we again it’s pretty much a black box, we’re now hearing that Steve Bannon has been subpoenaed by the grand jury in connection with the insurrection, and apparently the subpoena was issued late last month separate from the class documents case. We kind of know that Steve Bennett doesn’t wanna testify, and he’s already been convicted of contempt of Congress after refusing to testify before the January sixth committee. And for reasons that are not totally clear to me.

He is still walking free. But why do you think they are doing this? Is he at target of the investigation? What is your sense? When you heard that, what did you think?

Well, he’s almost certainly a subject of the investigation see earlier part of the conversation. Prosecutors keep people as subjects as long as they can. And there’s reasonably strong norm against compelling targets to appear before the grand jury. So once you’ve designated somebody as a target, they would presumably assert their fifth amendment rights before the grand jury. So, I assume he’s a subject, I, first of all, doubt very much that he will stiff this grand jury the way he stiffed the committee because of the civil contempt power that we discussed earlier.

Why would you wanna talk to Steve Bannon? He was really involved in the events that led to January sixth. And I suspect his conduct is at issue. I also suspect he’s a critical witness in a lot of respects, but about what I don’t know precisely.

Yeah, I’m skeptical that he would provide them with much information. But also, I’m skeptical that he will show as much bravado in dealing with a federal grand jury as he did with Congress. I think this is, again, another illustration of the big difference between thumbing your nose at congress and thumbing your nose at a federal grand jury. Ben Wittis is editor in chief at law fair, senior fellow in governance studies, at the Brookings institution and my main man on our Thursday’s Trump trial podcast, Ben. Thank you so much for coming back.

We will do this again next week.

Great pleasure.

As always. And thank you all for listening to today’s Bulwark podcast. I’m Charlie Sykes. We’ll be back tomorrow, and we’ll do this all over again. The Bulwark podcast is produced by Katie Cooper, and engineered and edited by Jason Brown.