What Will the Supreme Court Do?

Welcome to the Bulwark podcast. I’m Charlie Sykes. It is January fourth two thousand twenty four. We are coming up on the third anniversary. Of the January sixth insurrection, which is hanging fire at multiple levels of the legal system.

In our episodes of the Trump trials we’ve been looking at, the legal perils faced by the former president, but they have never been as severe as they are today. And, of course, we are joined by our good friend, Ben Whittis from Lawfair. Ben, first of all, Happy New Year.

Happy New Year to you. And to everyone listening. Buck a lot, people.

I’m quoting you your conversation in the kitchen with Mona Charen at, New Year’s party. About the stakes here. I mean, it is it’s one of those moments, again, and I I I think I’ve started every podcast this week by saying, you know, it is rare that as you go into a year, you are aware that, you know, this is the hinge of fate. I was thinking about, you know, knowing in January. I think maybe in January of nineteen forty four, people realized that this was the hinge of fate, but Certainly that’s true of twenty twenty for so many things right on the knife’s edge.

Yeah. And one of the things about it that gives it that choose your own adventure novel quality where, you know, you actually do sort of know the list of possible outcomes. You don’t know which one you’re gonna get, but you kinda know the list. And the reason is that there’s a democratic nominee president, and there’s a Republican nominee for president, and you one hundred percent of the time since, you know, we became a two party system, you get one or the other. And right now, the probability that those two are One is a small d democratic figure that is kind of roughly consistent with the American tradition.

And the other is promising a radical break with the American Democratic tradition and promising something much more authoritarian that is really, really stark, and their ballot entry, though, or they’re going to be ballot entries. And so you know a particular date on which we are going to make a choice between those two, and you also know a particular date New year’s day twenty twenty five where the world might be very similar to the world today, or it might be really different from the world today.

Really different. You know what’s also stark, though, as I was thinking about the third anniversary of of January sixth is how inconceivable this moment would have been on January seventh two thousand twenty one. You know, we started the week with that, poll that was in the Washington Post. Showing what percentage of Republicans, what percentage of Americans, frankly, don’t really have a problem with what happened on January sixth. They’re not only supporting Donald Trump and willing to minimize his role in that attempt to overturn the election, but are quite sympathetic to the people who attacked the Capitol.

I guess, You know, Ben, we’ve been talking for the last, you know, seven years about, you know, being a post fact society, post fact political culture, I feel like we moved past that, sort of almost post reality. The success of Donald Trump in his historical revisionism is really amazing I’m trying to think of any parallel to that in American history, and I’m coming up short. I mean, how amazing is it? Three years after, that we are where we are right now.

I wanna reflect on that for a moment. I really appreciated your conversation with Susan Glasser about it yesterday. About the degree of sort of reality suspension that is a kind of not predictable norm based on life in our lifetimes that you could convince you know, something like forty percent of the American people that an event they saw with their own eyes didn’t happen. Look, I will point out that I don’t I don’t remember the exact numbers in the poll, but this is not majority sentiment, right? It is a strong minority sentiment, and it’s a minority sentiment that correlates quite precisely with a lot of other quite pathological beliefs, for example, the beliefs that Donald Trump should be president again, right, that Donald Trump is a figure oppressed by the deep state.

These are kind of wild fantasies, and the fact that in the midst of a set of wild fantasies that have no basis in truth, we’ve now added yet another one that’s, you know, kind of a comprehensive wild fantasy that, you know, the event that disqualified him never really happened or was good or was, you know, expression of patriotism. I cannot think of good corollaries to this in American history, except one, which is the rewriting of what the civil war was.

Which is oddly relevant these days.

The conversion of the civil war from a rebellion of against the United States in defense of the privilege of slavery for white Southern landowners into the lost cause. Right? And in the that that was a an intellectual transition that, you know, started over a few months and became, a kind of national mythology in the south over a few years, and, you know, persists to some degree as Nikki Haley. Reflects. And I do think that there’s some analogy to be drawn there.

In defense of the lost cause, You know, it was not a cult of personality around one person. And it was not about one person’s will to power. It was about other horrible things, but it wasn’t about, you know, Jefferson Davis’ efforts to seize power after the civil war or Robertie is. Right?

That is an excellent analogy. The one that I was thinking about was and you point out that this is not a majority point of view, but it is a substantial minority. But even though it’s a substantial minority, it also has one of the two major political parties in its grips, and that political party may be on the brink of power. In Washington DC. This would be a little bit like, you know, we we’ve dealt with conspiracy theorists all of our lives.

You know, people who thought that the moon landing was fake or that the CIA assassinated, John f Kennedy, but imagine one of the major political parties suddenly, you know, seizing that as a litmus test. As one of Ron DeSantis of belief. That’s how weird it is to me what’s happened with January six, which makes it so much more exponentially dangerous.

There is one other analogy, but it’s not an American history analogy. And that’s the beer hall putsch. You know, for those whose early Nazi history is, you know, not conversant in, I believe, nineteen twenty five, Hitler, you know, the leader of the then new Nazi party tried to overthrow the Weimar Republic, or maybe it was twenty three, actually, and tried to overthrow the the new Weimar Republic. It was something of a riot in a Munich beer hall, and it was putatively led by, general Ludendorff who had been the sort of commander in chief of the German forces during World War one, was actually led by Otto Hitler, And, you know, Hitler was tried and sentenced did time for treason during which he wrote mein Kampf and he converted this rebellion into sort of a great patriotic uprising. And mein Kampf, the book was a kind of apologia, you know, written from prison for among other things this abortive uprising And I do think the conversion of that and into, you know, a great patriotic moment, which is what he did, and and did rather successfully over time provides sort of some analogy to what Trump is trying to do with the conversion of this great moment of shame and and specifically anti democratic shame into, you know, a patriotic choires of, you know, prisoners.

As opposed to a shambolic bloody fiasco failed coup d’etat. By the way, for our history buffs, This was, November eighth and ninth nineteen twenty three. So, about a century ago.

Hitler analogies are always bad. And so I don’t wanna dwell on that one. I do think at a time where Trump is you know, quite self consciously invoking Hitlerian rhetoric. And it’s not not a good idea to remember that there are abortive pushes and uprisings that become valorized in right wing or for that matter left wing mythologies. I think the better example in American history is probably the civil war.

Well, okay. So these all come together. You know, coup d’etas and insurrection because let’s dive into the big stories. I mean, we’ve been doing this for some time, you know, the Trump trials. You know, many of them having to do with, in comparison, the minutiae, of various motions and hearings and everything, we have moved right into the Super Bowl right now.

The US Supreme Court, almost certainly. Feel free to disagree with me. It’s gonna be taking up the fourteenth amendment section three litigation. Donald Trump has, and I think, correctly, said this is a an issue of national importance and, has to be decided by the Supreme Court. So let’s start with the so called insurrectionist clause since there were developments yesterday related to section three, which very explicitly bars people from serving an office, If they had sworn to those who uphold the constitution, then participate in an insurrection.

Since you and I spoke last, Colorado Supreme Court ruled during my vacation, weirdly enough, both of our vacations. The Trump is constitutionally ineligible to run because that section covers his conduct during the attack on capital. Secretary of State was ordered not to place his name on the ballot then on December twenty eighth, Maine. The Secretary of State ruled that Trump’s name must be removed from the primary ballot. So they have gone out of the Supreme Court, and, they are basically saying, alright, we want The nine members of the US Supreme Court to decide whether or not Donald Trump can remain on the ballot.

So Ben, give give me your take on Colorado, Maine, and whether you think the Supreme Court is gonna take up this case.

Well, I wanna take you back Charlie to a conversation that we had on this podcast. I remember exactly where I was when we had it, which was in the airport in Reykjavík, Iceland. That’s memorable. And, and we were talking about this these obscure litigations. And I said, you know, watch this space.

This is gonna be a big deal. And the reason it’s gonna be a big deal is one state. I think we were talking about Minnesota at the time Mhmm. That the Minnesota Supreme Court was thinking about it. And I said, look, one state is gonna do this.

And the moment one state does it, the Supreme Court has to resolve it because this is actually an issue in which federal law has to be uniform.

Right.

And so if you’d ask me which state I thought was the likely one for for this. I’m not sure I would have picked Colorado. The Colorado Supreme Court, I thought did a very creditable job laying out the case that the constitution does in fact prohibit Donald Trump’s future service. A lot of people are dismissing this as a bunch of judges, but that is the position of, in the conservative world, people like David French, people like Mike Ludig, people like Will Saletan and Mike Paulson. It’s very serious people.

It is not a trivial argument. Right. And by the way, if you are a textualist or an originalist who takes seriously what the constitution says, You know, take a moment to read section three because it sure does seem to be describing somebody like Donald Trump. That said, this is contrary to what a lot of liberals think. It is not a slam dunk.

At all. And there are, I think, four distinct and serious questions that the Supreme Court would have to resolve all in the same direction in order to get to affirming the Colorado Supreme Court. So the first is is section three of the fourteenth amendment self executing, which is a term that basically means does it do what it purports to do by itself, or does it require that Congress somehow implement it?

So, for example, If Barack Obama wanted to run for president next year, he is barred by the constitution from having a third term, that doesn’t require an act of congress or something to say, no, you can’t be on the ballot. Right? I mean, you just go to a court and

Exactly. On the other hand, there are provisions of the constitution that do not execute themselves. And by the way, the fourteenth amendment contains a bunch of such provisions. So the section I forget whether it’s four or five of the the last line of the fourteenth amendment, I think it’s section five, says Congress shall have power to effectuate by a the provisions of this. So the fourteenth amendment itself names Congress as having a role in creating the legislation that does the work.

Right? Now, do process and, equal protection in fourteenth amendment, section one, we don’t wait for Congress to enact that. Right? It’s self executing. But the question of which provisions are and aren’t self executing is a tricky one.

Right.

And the court would have to rule that the fourteenth amendment, section three is self executing. Second, the court would have to rule that the presidency is an office under the United States and that the president is an officer under the United States.

That seems kind of easy to me, but

So it’s easy common sensibly. It’s less easy legally.

Oh, I’m sorry to hear that. And I

mean, we can dive into the reasons if you want to. I actually don’t think it’s a very interesting question.

No. I don’t think so either. But

it is a really important question. And it’s the one that, by the way, the district court in Colorado tripped up on

I know.

And said know, yeah, he engaged in an insurrection, but I don’t think this provision applies to the presidency. And there’s some reason to Even the Supreme Court of Colorado kinda struggled with it a little bit, they basically said this would lead to an absurdity, which is right. It does lead to an absurdity. But, sometimes the, you know, application of the constitution to certain facts leads to absurdity. So you’d have to get past that.

That’s ball of questions number two. Ball questions, number three, is was January sixth an insurrection within the meaning of the constitution? And here, I find this question easy, actually. A lot of people do not. And I’m I’m including again serious people, and the argument goes something like this.

Hey, we have a statute that defines insurrection. And that’s, you know, Congress has the authority to create self execution legislation for this, and it did. It created an insurrection statute. Trump has not been indicted under that statute. Nobody’s been charged in connection with January sixth under that statute, reflecting the fact that maybe this is not an insurrection within the technical definition of federal criminal law.

I think this is wrong. Because I think the question in the constitution is not have you been charged with or has anybody been charged with insurrection or have you been convicted of it? The question in the Constitution is, did you do it? It doesn’t, by the way, spell out how you figure they out the answer to that question. But the question is not a question that sounds in criminal law.

It’s a question that sounds in objective reality. And I think the objective reality is that Donald Trump did something that seems awfully like lead in insurrection. And that brings me to the fourth question, which is did he engage in it? Let’s assume, for example, that the riot was a insurrection within the meaning of the constitution, Donald Trump did not participate in the riot. Right?

He didn’t storm the capital himself. He actually didn’t order anybody to storm the capital. And what he did do is he made an inflammatory speech, and he praised people there’s a series of things that he did that the Spring Court would have to be convinced collectively amounted to engaging in insurrection. So my point isn’t that any of these questions, the answer to them favors Donald Trump. I actually think probably the best reading of the constitution is that he’s barred.

But I do think you have to get through all four of them, and they all have to cut the same direction. And you have to get five justices to agree with that. So I I do think it’s a pretty heavy lift at the Supreme Court. That said, I don’t believe that it is a zero percent chance.

Okay.

Put yourself in the shoes of Neil Gorsuch. Your whole claim to legitimacy as a justice is originalism? And is taking the text of the constitution seriously and the text of statute seriously irrespective of where they lead you politically. And so that means this is a guy who he’s no kind of lefty. He will vote that title seven anti discrimination law covers trans and gay people who were clearly not on the minds of the people who wrote it because that’s what the text in his view says.

Right. By the way, rightly, I think. He also is the best friend of the Indian tribes on the court because of first of all, a sensitivity, I think, being from that part of the country to, you know, some of their grievances, but also that he reads Indian law seriously, and he takes what Congress said and, you know, wants to apply it. How does a guy like that look at a section, like, section three and say, no, for prudential reasons, you know, all this yeah. It seems to bar, Donald Trump, but we just can’t go there.

I think that’s gonna be a problem for him. I don’t know if it’s gonna be a problem for Clarence Thomas and Samolito. But I do think the more originalist you are, the more difficult this problem gets And that’s why you see some very prominent originalist scholars like Bod and Paulson who write a piece that says, you know, this isn’t really a close question.

Okay. So here’s here’s my take as a non lawyer here. And I agree with everything you just said. However, you look at the history of the court and the intersection of the law and politics, it has always been a factor for the court. And you know that the Supreme Court hates to inject itself into these highly partisan toxic issues.

They certainly do not justice Roberts and actually no one in this court wants to go through another Bush V Gore type situation. And this is I would say exponentially more complex than that. And so, yes, you know, the this this does pose a challenge to the originalist, like, for example, Gorsuch. But the justices have all sorts of ways of kicking something or ruling narrowly or finding technicalities or other issues rather than dealing it. There is I’m actually willing to die on this hill.

I just I think there’s a little bit of wishcasting. There’s a little bit of unicorn hunting here. There is no way that this US Supreme Court is going to throw Donald Trump off the ballot in the middle of a presidential election year. No court wants to take a step that would be perceived as that radical. I don’t think it’s extreme.

I agree with you. Whenever your definition of insurrection is, I believe that inciting and stoking and conspiring to have the violent overthrow of a free and fair election is is insurrection. I do believe that the fourteenth amendment does apply. However, you know, in the real world, in the prudent world, Supreme Court justices just do not want to play that role. And so I just don’t think that there’s any way that that is going to happen.

I do wonder whether there’s any sort of inter play. And again, we’re talking about things that we do not know between this ruling and the ruling on the question presidential immunity, because that is to me, and you and I have talked about this. That’s the big one. This question of whether or not the president is immune, I’ve always expected the court would reject Donald Trump’s claims of immunity. In some ways, they have now the opportunity to balance.

Say no, we’re not gonna throw him off the ballot, but we are also not going to say that he is immune. That strikes me if if I’m Justice Roberts, from a political legal point of view that seems like a sweet spot. But what do I know? What do any of us know?

Right. So since we last talked about this case, there have actually been very substantial developments in it. And Right. The most important is that the Supreme Court said no. We’re not gonna hear it as a preliminary matter.

Right. Follow the regular order, DC Circuit, go first. That is a significant development, either because it signals that the Supreme Court is not that interested in this subject and may not take it at all. Or because it adds a layer of delay, one or the other. In the meantime, the DC circuit had set a lightning fast briefing schedule.

The briefing is now all done, and it is going to be argued on Tuesday. And so, you know, by the time we do Trump trials next week, we could even have a ruling from the DC circuit.

Seriously?

Well, you know, fast. I think it’s going to be very fast. You don’t set a briefing schedule that fast in order to dawdle on the answer. Right. And so when the DC Circuit rules, let’s say by mid January.

Then one of two things happens. Either the Supreme Court then has to take it up or lose its chance to do so before conviction, or it declines to do it. And then we’re back in trial and And so, you know, I think the DC Circuit is sending a very clear signal here that this trial is not going to not happen in a timely fashion because of us. If the Supreme Court wants to slow this down and push it deeper into an election year, that’s on them. But the judges of the DC Circuit, god bless them, are saying we understand the need for spaditious resolution of the immunity question.

On Tuesday, Trump’s legal team filed that brief in support of, you know, granting immunity. And it it’s quite as we say an audacious argument they’re making. He’s claiming he’s absolutely immune from prosecution for actions he took while in office. And his lawyers cite the impeachment judgment clause in article one, which reads judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor. Trust or profit under the United States, but The party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law So the clause indicates that a party convicted can still face prosecution.

Trump I’m sorry to laugh at it. Trump is arguing that the clause means something even more that the president who is not convicted by impeachment may not be subject to prosecution. This strikes me as kind of a high lob in terms of absurdity. What do you think?

Well, I wanna preface this, Charlie, by saying I’m the guy who always says actually, wait. Let’s give the devil his due and take this argument seriously.

Right.

Not this time. This is a freaking stupid argument. And I think the DC Circuit will treat it as frivolous. Literally, nobody until this litigation has ever thought that this is what the impeachment judgment clause means. There is no scholarly support for it.

I have spent time with this clause since the the Clinton impeachment in nineteen ninety eight, nineteen ninety nine, and nobody thought that Clinton could not be charged having been acquitted in impeachment. No one’s ever argued that before. This has no votes at the Supreme Court. It has no votes at the DC Circuit. Unlike the claim of presidential immunity, which is a different and more substantial claim that some people are not taking seriously enough.

So let’s get to that. Jack Smith has been, pushing back very, very hard against, for example, you know, Trump’s opening brief that was filed back in December. If Trump’s argument is correct, that he’s immune, Smith’s team told the court, A president could order the National Guard to kill critics, tell the FBI to plant evidence, or take bribes for government contracts In each of these scenarios, the president could assert that he was simply executing the laws or communicating with the Department of Justice or discharging his powers as commander in chief and Trump’s approach would leave no recourse to deter a president from inciting his supporters during a state of the union address to kill opposing lawmakers thereby hamstringing any impeachment proceeding to ensure that he remains in office unlawfully. Okay. So you think that some folks are not taking this seriously because I think that this is a very clear bright line for the Supreme Court to say, no.

You are not immune because if they ruled the contrary way, we would live in a completely different constitutional universe. So what are we not taking seriously now?

Okay. So first of all, let me distinguish between several different types of immunity claims. By presidents. One, the easiest question to address is the question of absolute immunity that Trump has argued for. This is clearly wrong for a lot of the reasons that the hypotheticals in the special counsel’s brief, written undoubtedly by the redoubtable Michael Durban, who is one of the finest appellate criminal lawyers in the history of the country.

And I don’t need to say more than the hypotheticals that you just quoted. To say, okay. It cannot be that the president is absolutely immune in the way that he is, by the way, absolutely immune from civil liability. Under Nixon Vee fitzgerald. That leaves a question that is much charter, which is, is there some non absolute immunity that covers the president?

You know, a cop gets qualified immunity famously. Right? For stuff within his line of duty. Trump is not asking for qualified immunity. Like, I think that is actually tricky question.

The reason he’s not asking for Qualified Immunity is because it’s not good enough. To protect him. Right? You know, if if you give Trump Qualified Immunity, Jack Smith can overcome that with the power of this evidence. The third thing, and this is the area where I think the issue is very hard.

So the federal government, even as it argues, that Trump does not have immunity, absolute immunity in this context has a long line of argument that you can’t apply certain criminal laws to the president. For example, the office of legal counsel has a long standing rule that says, unless a statute specifically says that it does apply to the president, a criminal statute, you, as a prudential matter, assume that it doesn’t, if its application to the president, could in some way impede the presidential function. So let me give you an example. If I purported to send military troops overseas, to accomplish some objective of Ben Whittices. I would be probably charged with conspiracy to commit murder, you know, Right?

But if the president does that, you would never think of applying the conspiracy to commit murder to the otherwise lawful activity of the the commander in chief and his capacity as commander in chief. That set of questions is another way of saying immunity. Right? When you don’t apply criminal statutes to the president because his function is different. Right?

He has certain articulated constitutional functions. So I think Jack Smith clearly with a lot of input from LLC has done a remarkable job of distinguishing between these different threads. And, you know, his basic position before judge Chuck in was we have all kinds of ways to protect the president. The clear statement rule that I just referred to. Prudential application of non application of certain statutes to the presidency.

By the way, if you’re gonna recognize an immunity, qualified immunity, there’s no reason to give him absolute immunity, give him qualified immunity, Right. So the question of how the Supreme Court will think about the immunities of the president and criminal cases is a very that’s a very hard set of questions. It’s not a hard set of questions as to whether the immunity that Trump is claiming is valid or would be recognized.

And that’s the question, though. Right? The question is whether or not the court will say that Trump is immune from prosecution for the conduct for which he’s been charged. And if I’m hearing you correctly, there is a qualified immunity that would not cover the specific charges that Jack Smith has brought against him?

Well, so you could imagine the Supreme Court saying we don’t recognize the absolute immunity that the president has asked for.

We

do think the president is entitled to Qualified Immunity in the following fashion. And we remand the case to the district court to figure out whether the indictment is defective in light of that. Right? And that would surprised me if they did it, but it wouldn’t rock my world particularly. The reason they are not asking for that is because I wouldn’t do the work they need.

In the bulwark today, Kim Waley, who actually is the lawyer is pointing out that Trump’s lawyers who are all officers of the court are arguing in their final brief, basically using the big lie in their briefs that when Trump was carrying on his supposed duties as president that there were, quote, they are vigorous disputes and questions about the outcome of the twenty twenty election. And that there was, quote, extensive information about widespread fraud and irregularities in the twenty twenty election. She says, look, these have all been refuted. These are clearly lies and says, you know, the the falsehoods are so egregious. The lawyer should be sanctioned for misconduct, for including those falsehoods in their brief, but it is rather extraordinary that what Trump is now doing in his defense or his lawyers on his behalf are in fact invoking the big lie to justify his behavior.

So speaking of audacious, your reaction.

Well, so this is a problem as an initial matter that Judge Chuckan’s gonna have to deal with because The only real defense of Donald Trump, and it only gets you part of the way. But if you’re a defense lawyer who’s gonna defend Donald Trump, this has got to be part of your defense. Right? He genuinely believed the bullshit that he was propagating. That was not simply self serving motivated reasoning.

There was some good faith reason for him to believe that. And here’s why he believed it. Now once you go down that road, you’re propagating the big lie. Right? You’re you’re saying, hey, you know, he actually believed this, and there were good reasons to believe it.

Well, actually, there weren’t good reasons to believe it. There was no reason to believe any of it except motivated reasoning that it might keep you in power. And so it puts you in a very difficult position as a defense lawyer, where the best defense of your client is to propagate the same fraudulent nonsense that he was propagating that he’s, by the way, charged with among other things fraud. For propagating. I don’t wanna be sound entirely unsympathetic to his lawyers here.

They’re ethically obliged. To make the most vigorous defense for him that they can

Right.

Consistent with other obligations. But it’s a really fine line. They have to walk because they’re not allowed to lie to the court. They’re not allowed to make arguments that have no reasonable factual basis Right. There are constraints on their ability to do it, and there’s a very narrow path that they can walk here in the pursuit of those things.

Because it’s the new year. I I forget who I’m quoting here, but this whole question of what Trump actually believed in its relevance, didn’t Jack Smith make the point that Trump’s state of mind really does not absolve him. So for example, if I believe that the bank, made a mistake on my account. I am not therefore justified in robbing the bank. Or if I go in and I hold up the bank, you know, and take a hundred thousand dollars out it would not be a legitimate defense for me to say that I genuinely believe that they had made an accounting error on my account.

That does not wipe away the crime. Whatever I thought no matter how sincere my belief was.

That is exactly why I started by saying it is not an adequate defense to say that he sincerely believed this, but that any defense you might muster would have to include that. Right? It has to have other elements too because there are some things he did, like, you know, just getting on the phone with Brad Rathensberger and threatening him. You’re not allowed to issue threats just because you legitimately believe that you’re right on the merits. By the way, a bank over the weekend did make a huge accounting error to my detriment, and I discovered it on January first.

And it sent me into a murderous rage. And this is true, by the way. It it was many, many it was thousands of dollars.

To rational response. Yeah.

And it sent me in a murderous rage, and the law deterred me from doing something that I might otherwise have done involving building property damage and, you know, injuries This

is reassuring.

People on the phone who were not your example hits home.

Well, I’m I’m glad to hear, by the way, that your your restraint, and it was also probably fortunate that the banks were closed on January first. So was it was it being validated?

And on January third, which is to yesterday. Don’t January second, I wrote them a very, very angry note demanding that this be corrected. And, yesterday, they acknowledged error. And are restoring my money.

And the money is back. So one other development let’s just veer off into the area of of speculation, but something else happened when you and I were both on vacation. We got that report out of Michigan, the story of more tapes. Lori, there were more tapes of Donald Trump urging members of the elections commission. Election board there, not to certify the election.

We don’t know how many tapes there are out there, but is this the kind of thing? For first of all, do you think Jack Smith already knew about that? And if he didn’t know about it something that’s gonna be folded into the prosecutions. What do you think?

The investigation here has been so broad and so intense. And the powers of the federal government to get information are so powerful that my working assumption is that these things that may not have been previously known to the public may well have been previously known to Jack Smith, who’s had a, you know, now three year between the justice department pre special counsel and the office of special counsel. It’s about a three years of investigation. That said, you know, not always the case. And, you know, remember that Leon Jaworski learned about or archbold Cox to be precise learned about the Watergate tapes from congressional hearings.

Right? Like, There are always surprises, and it wouldn’t entirely surprise me if this were one of them, as to how it fits into the case. I I don’t know.

Well, we are now moving into warp speed, though. As I think you’ve laid out in terms of of the calendar, we’re gonna see what the, DC circuit does, what the Supreme Court does. These are huge decisions coming down. We may be having a trial as early as March. I thought it was very interesting in the Twilight of Ron DeSantis’ campaign.

I highlighted this in my newsletter this morning. NBC reporter, Von Hilliard goes up to, governor DeSantis and says, so if Donald Trump is in fact convict of a felony and wins the nomination, would you still stand behind him at the convention? And Ron DeSantis braver, Rhonda Sanders, sir Ron, ran away would not even answer the question. And, of course, this is, again, one of the unknowns of twenty twenty four what does a Republican party and more importantly, what does the general electorate think about voting for a convicted felon or somebody still facing felony charges for president of the United States. I mean, this is a real issue that, quite frankly, I don’t know whether Ron DeSantis and other Republicans just hope it goes away.

Whether they’re waiting for a unicorn to come over the hill and rescue them from this, But again, this is going to be one of the big questions of twenty twenty four. Wanna be, you know, not just the legal outcome, but the political reaction to the legal outcome.

Yeah. I I actually think the legal outcome is more certain in my mind than is that question, the political reaction to the legal outcome. On the one hand, I’ve watched, you know, federal criminal cases my entire adult life. And so I feel like I have a a really large end sample of what federal prosecutors are and aren’t capable of. How juries behave, how judges behave, like, I feel like the judicial system’s handling of the case of Donald Trump is a relative predictable, you know, some genuine variables, some genuine uncertainties, but we have a lot to compare it to in terms of other high profile criminal cases.

We know how the justice department behaves. Right? How the electorate responds to the conviction of a presidential candidate whom it has just nominated is a matter of about which we have no n sample. It’s an n of zero, you know, unless you count Eugene Debbs who was not a good analogy. And I do think that every prediction that has been made about the balloon bursting based on some event that’s gonna be three months from now has been wrong.

And so we should not assume that we can predict with any confidence what the effect of a criminal conviction would be. Except in one very limited sense, right, which is the following. There is, I think, no person in America who right now, it is unthinkable that they would vote for Donald Trump. But if you convict him, they’d be like, alright. Now now I’m gonna vote for him.

Right? So there there’s no political upside to being convicted. And similarly, I think it is safe to say that the bottom will not fall out of Trump’s support. There’s a core his core base is gonna support him even if he’s locked up. And so the question really is what what is the swing?

Is the swing one percent? Is the swing seven percent? There’s some group of people who right now say, okay, I could vote for Donald Trump. He if he were a convicted felon, would not say that and would either stay home or would write in somebody else or would even vote for Biden. I think the meat of the question is what is that percentage.

And is it a percentage that takes Trump from the department of running even with Biden to the department of being completely unelectable, or is it smaller than that?

And no one knows the answer to that. And all of the polls that measure that. I don’t think are predictive in that sense because the many things that you think, well, if this happened, this will be the reaction. This will be my reaction. When it actually happens.

It’s completely different. But to your point, we’ve been waiting for that moment. And every time it comes, the window moves. People say, well, if this happened, if you got indicted, absolutely not well. Okay.

No. What about this? What about this? What about this? So I still envision that that moment at the Milwaukee convention where he steps out from, you know, behind the podium pulls his pants leg up shows the ankle bracelet on him and says, I wear this as a badge of honor.

I wear this for you. And this goes absolutely out of its mind.

I wanna add one thing that there’s another moment that may be just as important as the moment of conviction, which is the moment of sentencing. And Donald Trump will not be in jail. He will almost certainly receive an appellate bond, by the way, should, in my viewpoint. But he could very well be sentenced in one or more cases. The sentence that he would get if you were convicted in the January sixth case would be lengthy.

And, you know, you can rack up a lot of time by trying to overthrow the United States government. People talk about the moment of conviction, but there’s a moment at which judge Chuckkin would assuming he were convicted, look at him having it’s probably three months after conviction. She’s gotten pre sentence report.

Right in the middle of the campaign. Okay. Go on. Yeah.

Right. And she’s gonna look him in the eye and say, I find that you did this in abandonment of your oath in selfish, blah, but she’s gonna make some really dramatic, not dramatic because she’s a drama queen or anything, but dramatic because the facts are dramatic. And she’s gonna say, and I sentence you to serve x amount of years in prison. And that’s a pretty interesting moment two.

That’s yeah. That’s pretty interesting. I don’t think that’d be an un that’s the understatement of today’s podcast. Pretty interesting. You know?

But again, is it a powerful moment that causes nobody to abandon him? Is it a powerful moment causes one percent to abandon him. Is it a powerful moment that causes ten percent? You know, nobody has any idea what the answer to those questions are.

That is an important point because we go into all of this, and I think there are certain assumptions about the way things are going to play out. And there are so many variables because as you point out, there are absolutely no precedence. There’s no historical parallel that we can draw. Ben Willis. Thank you so much for joining me again on, the latest edition of Trump trials, Ben.

We’re gonna be back next week, and we’re gonna do this all over again. We we haven’t gotten to say that in a while.

We are gonna do this all over again. In fact, thank you all for listening to the Bulwark podcast. Because I will be back tomorrow, and I’ll do this all over again. Bulwark Comcast is produced by Katie Cooper, and engineered and edited by Jason Brown.