Of the four legal cases pending against former President Trump, which is the most likely to see a courtroom or end in a guilty verdict? Andy runs through the drama at Mar-a-Lago, the criminal investigation in Georgia, the January 6 madness, and the scrutiny of the Trump Organization’s business practices with two legal experts: the Brookings Institution’s Benjamin Wittes and Loyola Law School’s Jessica Levinson. They rank the four cases in order of legal liability, discuss what’s going on inside the Justice Department, and predict how a guilty or not guilty verdict would impact our society.
Keep up with Andy on Twitter @ASlavitt.
Joining Lemonada Premium is a great way to support our show and get bonus content. Subscribe today at bit.ly/lemonadapremium.
Support the show by checking out our sponsors!
- Click this link for a list of current sponsors and discount codes for this show and all Lemonada shows: https://lemonadamedia.com/sponsors/
Check out these resources from today’s episode:
- Read Ben’s piece about what’s in the Mar-a-Lago search warrant: https://www.lawfareblog.com/whats-unsealed-mar-lago-search-warrant
- Read Jessica’s latest pieces: https://www.msnbc.com/author/jessica-levinson-ncpn810301
- Find vaccines, masks, testing, treatments, and other resources in your community: https://www.covid.gov/
- Order Andy’s book, “Preventable: The Inside Story of How Leadership Failures, Politics, and Selfishness Doomed the U.S. Coronavirus Response”: https://us.macmillan.com/books/9781250770165
Stay up to date with us on Twitter, Facebook, and Instagram at @LemonadaMedia.
For additional resources, information, and a transcript of the episode, visit lemonadamedia.com/show/inthebubble.
Andy Slavitt, Jessica Levinson, Kyle, Benjamin Wittes
Andy Slavitt 00:18
Welcome IN THE BUBBLE, I’m Andy Slavitt. It is Friday, August 19. Donald Trump once said that he could stand in the middle of Fifth Avenue, shoot somebody, and he wouldn’t lose any support or something to that effect. Well, today he finds himself in the middle of multiple high level legal cases and investigations. And I think there are a couple of questions that occur to many of us. You know, first of all, is he going to face any legal accountability? And then I think there’s this doesn’t really matter question that people have. I think there’s a lot of skepticism which says that Donald Trump, even if he is accountable for something will face consequences. And of course, by the way, we live in a country where a good portion of the people believe X, the other half the people believe why. So the question is, what do these investigations add up to? What do they mean? What is he guilty of? And does it even matter? And so we’re gonna do a refresher on all of that and get some really great expert opinion from two people that I think you’re gonna love. First Joining me is Benjamin Wittes. Ben is a senior fellow at the Brookings Institute. He’s the editor in chief of lawfare blog. And if you’ve never seen it or read it, the name betrays how much fun Ben’s writing and musings are. Thank you for being in the bubble, Ben.
Benjamin Wittes 01:48
Thanks for having me.
Andy Slavitt 01:49
And Jessica Levinson, who is a professor at Loyola law school, you’ll see her on MSNBC a lot. You’ll see her on CBS News. She’s also a host of the podcast, passing judgment, which I got to say like comports with all of my thinking that every podcast name is more clever than the next. And it’s a clever name. Welcome to you, Jessica.
Jessica Levinson 02:13
Thank you, Andy. I like the in the bubble name and podcasts. And I’m a huge fan of lawfare blog. So I’m excited to be here.
Andy Slavitt 02:21
We got to circle love, we got to circle with love. That’s awesome. So I’m going to start this way. Okay. I don’t know if you have a piece of paper or pen, or just a good memory. But we’re going to start with a little like a game show quiz. I want to ask each of you to spend a second rank ordering in order of importance, whatever important means to you. The following cases, the January 6 investigation, the drama at Mar a Lago, the New York Attorney General investigation and the criminal investigation in Georgia, so those four events, January 6, Mar a Lago, New York and Georgia in order of importance, let me know when you’ve got your order. Done. Jessica. Oh, good. Okay. So Jessica, what’s your order?
Jessica Levinson 03:16
So I think in terms of legal liability, I probably put Georgia first then maybe Mar-a-Lago, then New York and then January 6, but let’s preface this all with the prosecutors and investigators no more than we do at this point.
Andy Slavitt 03:33
Got it. Okay. Then, how would you choose to answer that order?
Benjamin Wittes 03:38
Okay. In terms of the threat to Trump, I think you have to put Mar-a-Lago first, at this point, because it is a federal, the feds have a lot more power than the Georgia, the Fulton County District Attorney, and B, it has crossed a probable cause threshold already. Number two, I would say, has to be Georgia. There’s a quite advanced investigation. The woman who’s running it seems very serious about bringing charges. She’s identified Rudy Giuliani as a target at this stage, which is a fairly advanced stage of the investigation. Number three, as a threat to Trump, although in the long run, it may be the biggest threat is the January 6 investigation. I think Trump has a world of potential liability in there. But it’s clearly not as advanced at least with respect to him as some of the other matters. And then I agree very much with Jessica that the New York Attorney General’s Office is it may put the Trump organization out of business for civil liability, but I don’t think it poses a significant criminal threat at this point to Donald Trump anymore.
Andy Slavitt 04:59
Okay, So it sounds like we got Mar a Lago in Georgia one and two, arguably which one’s more liability, and then New York and January 6, 3 and 4. And we’re going to use that as the order in which we go through these. Not that people aren’t going to listen to the end, because actually the show you, you’ll get a painful shock if you leave the podcast in the middle. It’s a little innovation we’ve created. But let’s pick Mar-a-Lago to start with Benjamin and I invite both of you to answer any of these questions. I’ll just throw maybe the one of you first. You know, last week, the FBI searched his Mar a Lago estate, we know that the court unsealed the warrant and property receipt, forget what looks good, looks bad, etc. Politics. What are the legal issues at work here that are most relevant, Ben?
Benjamin Wittes 05:53
Well, the warrant identified three statutes that investigation is taking place under. One of them is a basic obstruction statute focused on the destruction or tampering with documents. One of them is essentially a theft of federal property document. It’s kind of dressed up in other guards sometimes, but it’s basically retaining federal records that aren’t yours. And one of them is the return, presumably the retention provisions of the Espionage Act, which basically criminalizes hoarding classified information and failing to return it when it’s demanded. So I think you can infer from these three statutes that there is a concern that the former president retained material that was not his to keep, some of which was classified. And that in the course of negotiating with the National Archive and the FBI for the return of that information, there may have been some document destruction. In addition, I think you can infer from the fact that this search was executed, that the FBI is IX was extremely concerned about the nature of the information in question. It is not the normal practice of the Bureau to execute search warrants at the houses of former presidents. Not that the situation comes up very often. But the Wall Street Journal has reported that Merrick Garland and the Attorney General spent a lot of time weeks or months reviewing this and pondering it. And so I think you have to imagine that the circumstances quite apart from what Trump’s defenders may be saying right now, must be extremely aggravated for this to have taken place.
Andy Slavitt 08:09
And Jessica, what’s the most damning case against Trump here? And what does that look like? And I’m gonna ask you both the question of what’s the most legitimate defense after that?
Jessica Levinson 08:26
So, I think what’s most damaging, frankly, is what Benjamin just described, which is, let’s remember everything that led up to this, you have to have a law enforcement officer who swears under oath and an affidavit that there’s probable cause, that there’s evidence of a crime that situated at Mar-a-Lago, what are those three crimes, Benjamin just laid them out Espionage Act, obstruction of justice, basically unlawful taking or destroying of government document, then you have to have a magistrate judge who looks at everything in the affidavit, looks at the search warrant application and says yes, okay, go ahead. I also think there’s probable cause. Now, I know some people say, Look, this is generally a rubber stamp from a magistrate judge. Let’s remember that there really is no generally here. We’re talking about the former president United States, we know that this is going to be highly publicized, we know that you and I are going to be talking about this. So I think there is practically speaking a higher standard. And I’m not sure I go with the oh, these are always rubber stamped anyway. But what this looks like is a president who took information and I believe very sensitive information that he should not have taken. So for people listening at home, you know, a lot of people have worked at private companies. And maybe on the way out the door, you take a stapler you take a paper away, you take a favorite pen, you shouldn’t do that. But my stapler. I’ve spoken to your colleagues before, let’s I’ve seen pictures of that stapler, and I know you didn’t buy that for yourself.
Andy Slavitt 09:57
I did return it.
Jessica Levinson 10:00
We’ll discuss that later. But what this is akin to is you apply a secret price list, for instance, or trade secrets or client information. That’s very sensitive. And that’s why I think this is the Department of Justice, who it looks to me like already said, we think you have this information. We don’t think you gave it to us. Turn it over. Looks like it was subpoenaed Trump and his attorney said, no, we’re not going to give it over. And I know, there’s been a lot of publicity, a lot of discussion about the Espionage Act. It’s important of course, remember, that doesn’t require espionage. It’s something broader. Right, as Benjamin said, I think they’re really focusing on the part that talks about retaining information that’s in the national defense. And Andy, that probably comes to your next question, which is this defense issue, you know, what’s Trump’s defense gonna be? It’s this ever changing, never twice the same of they planted it. And they planted highly, you know, highly sensitive information.
Andy Slavitt 11:08
They planted something that I already declassified, that I’m having a tough time under […] like following the logic of that one.
Jessica Levinson 11:14
I wouldn’t spend too much time trying to put that under the bucket of logic but, you know, let’s focus on the declassification issue, for a moment. And I’m sure we’ll talk about this more in a second. But if that’s your defense, it doesn’t look good, right? Because, yes, the President has broad power to declassify information. One, I don’t think he actually did, because you still have to go through a process. You don’t wave a magic wand, you don’t say it in your head, and it is just so, but two, even if he did, by their terms, none of these three statutes require it in my mind that there be classified information at issue.
Andy Slavitt 11:53
So Ben, what is a good defense? Is there a reasonable defense that you think the president or president Trump could put forward?
Benjamin Wittes 12:00
The best defense may be assuming that there isn’t some grossly aggravating factor like he retained material in order to sell it, or he retained material in order to blackmail somebody, right? Or so with some nefarious purpose, but assuming it’s just removal of material and not timely returning it on demand. I think the best defense may actually be, I didn’t really do that. The movers came, they moved my stuff out of the residence, I was entitled to bring the documents I was working to working on the residence. And when I learned there was an issue. I said to the lawyers, hey, deal with it, get back to the National Archive, whatever they need. I didn’t know what was in each individual box. I didn’t know what the portion markings on each individual document was, I never looked at it. I didn’t know which documents I had. I just, you know, use documents and they were in the residents and my people took them to Mar-a-Lago.
Andy Slavitt 13:12
So you may, you may be able to convince the public of that. But does it does that matter to a judge or a jury?
Benjamin Wittes 13:17
Oh, I think it matters very much.
Andy Slavitt 13:21
Benjamin Wittes 13:22
Intent is central. Yes. Intent is an element of all of these offenses. So I think the best defense for Trump may be that he’s just a certain distance from yeah, it was in my White House residence. And yeah, it was at Mar-a-Lago, which is my house, but I never laid eyes on any of that. I never. And so I think if you’re at the Justice Department right now, you are actually probably trying to prove that that’s not true. And you’re trying to show individual level conduct by Donald Trump. And I don’t think you’re gonna see a case. If they don’t think they have that. You might see a case against somebody else, because somebody didn’t do the search didn’t return material that should have been returned. But we’re all making an assumption because Donald Trump’s house was searched that, that was Donald Trump, and I think that assumption may be a little bit premature.
Andy Slavitt 14:18
So in a colloquialism, there could be a fall guy or fall woman hey, they did this.
Benjamin Wittes 14:24
Or even that we know that it’s true that somebody did it, but we can’t identify who did it
Andy Slavitt 14:30
is, who it is. Let’s take a quick break and come back and talk about what the consequences here are for the former president.
Andy Slavitt 14:59
All right. So, I think Benjamin laid out the arguments on both sides here. I want to use your career quickly, but what do you both think this case will turn on? And what’s the legal liability here and the consequences? If there’s something off here? And if you want to speculate on what you think, based on what you do today, what do you think this adds up, Jessica?
Jessica Levinson 15:24
I think it hinges on exactly the conversation you just zeroed in on with Benjamin, which is it hinges on first being able to show willfulness, all three of these statutes show willfulness. But it also hinges on the difference between there’s evidence of criminal activity at Mar a Lago and former President Trump is responsible for that potential criminal activity. That’s the line that you really need to draw there. And then third, probably it’s the difference between probable cause and proof beyond a reasonable doubt. But it’s really the line to not just the evidence, but the actions that the former president took.
Andy Slavitt 16:00
So what do you think happens here?
Jessica Levinson 16:04
You know, I will be honest with you for weeks, if not months, I have had two different feelings, which you can’t square and one is, if you had this evidence against John Smith, not Donald Trump, but John Smith, it’s almost inconceivable given maybe not just the three statutes we talked about. But everything else we’re going to talk about, it’s almost inconceivable that you wouldn’t face significant legal exposure. And then on the other hand, Andy, it’s really what you said in the introduction, which is, we’ve seen threats of legal exposure before, and we’ve seen the former president, avoid those threats. So it’s inconceivable in my mind, and maybe this isn’t a good lawyer Lee answer, but it’s a human answer. I can’t imagine there isn’t an indictment on something. And I can’t imagine that there is.
Andy Slavitt 16:50
Wow. Wow. How about that. Benjamin? Could you break the tie in Jessica’s mind?
Benjamin Wittes 16:57
Yeah, so I think there is going to be an indictment, but I think it is going to be deferred for a while for the following reason. So I’ve tried to reconstruct what Attorney General Garland would have had to be thinking about. And this is a very smart and sophisticated political figure who’s been around Washington for a long time. And his deputy Lisa Monaco is a very, very savvy, political actor as well. And so these are people who will have thought through how this is going to play, they will have been expecting a certain degree of the reaction they got and garlands steely response is a reflection of that. That says to me, that by doing the search, you have already absorbed a certain degree, a high degree of the political costs of bringing the indictment, you already have Fox News saying, you know, it’s a third, that’s another civil war, you have threats to FBI agents, you have the judge, you know, getting death threats. And so I think that to some degree, when you decide to execute the warrant, you are deciding you are willing to bring the case. Here’s the wrinkle, and I think it’s a big wrinkle, which is that they have a concurrent January 6 investigation. In fact, they have many concurrent January 6 investigations.
Andy Slavitt 18:34
They being Justice Department.
Benjamin Wittes 18:35
Exactly. And so if your Merrick Garland and Lisa Monaco, you are thinking about this case, in the context of a larger array of cases that you are thinking about with respect to the former president. And there is an exigency here that require that you act immediately, which is the recovery of the documents, but there is no exigency that requires that you bring the case quickly. And there is something to be said, for waiting, because these may not be your biggest charges. And we’ll get to agenda January 6, part of the conversation shortly, but I think there’s something to be said for don’t do the small discreet document retention case, months before you do the big trying to conspiracy to overturn the election case, because the whole thing works better if they’re coordinated and timed. And so I suspect that we’re about to enter we’re because of the midterms, a period in which the Justice Department will largely go dark. And so we’re not going to see anything happen until probably after November. And then this case will get or may get folded into a larger case, that’s my suspicion, it’s worth what you paid for it.
Andy Slavitt 20:04
Jessica Levinson 20:05
If I could jump in, of course, you mentioned the midterms. I mean, the complicating factor here is, does the former president become the future candidate? Does he declare that he wants to be candidate for office? As far as I can see, legally speaking, it really has very little consequence, other than that Department of Justice memo, which is basically try and do no harm when it comes to elections.
Andy Slavitt 20:28
You’re getting to the place where I think we should finish the conversation when we get through all these cases, which is literally picturing what happens with the prosecution of a presidential candidate sometime in 2023-2024. So, maybe we defer that, Jessica, talk a little bit about Georgia next. So you put Georgia first on your list, Jessica, as the highest amount of potential legal liability, to tell us what the legal issues are here in Georgia?
Jessica Levinson 20:58
So I put Georgia first. I think, in part because of the evidence here, we have the audio of that famous phone call between Trump and the Secretary of State Raffensperger where he’s basically saying, find me 12,000 votes, we have witness testimony, we have documents. In my mind, you know, we talked about some of the problems with respect to the Mar-a-Lago case of tying the President to the crime. The reason I listed Georgia first is because we don’t really have those problems, we have him on the recording. So maybe it’s not as, quote unquote, serious. But I think in terms of the easier case and the potential for liability, maybe the fastest or the quickest. That’s where I put Georgia. So of course, we’re talking about Trump’s attempt to undermine the 2020 election results, the pressure campaign that he exerted on the Secretary of State Ralph Hunsberger to I would characterize it as basically steal the votes in order to undermine the election. We’re looking at things like solicitation to commit election fraud. Maybe this varies by state, but a claim something like state racketeering. And the reason I also think there’s a great potential for legal exposure is look at what’s just happened to Rudy Giuliani this week. So in the Georgia inquiry, Rudy Giuliani was told that he is a target of the investigation. And if you look at the reasons why he is a target, again, he was serving as an attorney for the former president at the time. And his activities basically fall within kind of two buckets testifying to state lawmakers. propagating these lies peddling these conspiracy theories that there is fraud in the election, and the fake elector scheme that he was apparently involved in. It’s very difficult to disentangle the law and the facts between what Rudy Giuliani I think will be accused of and I think will be indicted for and the former president, and that’s why I list this up at the top.
Jessica Levinson 20:58
So you got this fake elector thing? You’ve got this find me the votes thing. I’d ask you again to do the unfun part, and tell me Is there a defense here that you think either for the president or let’s add Rudy Giuliani in, that you think is legitimate defense.
Benjamin Wittes 23:24
So I’m not in any sense an expert on Georgia criminal law, and therefore, how you would craft the defense. But if I were representing Trump in this, I would take the view I was not asking, my client was not asking Raffensperger or anybody else to do anything illegal or to cheat, he was merely convinced that the true vote count favored him. And he was asking Raffensperger to do his job and count votes appropriately, with the conviction that if that were done, he would be victorious. That said, I think the facts on in Georgia are extremely bad for Trump. And by the way, I think they’re bad for some other people too. And one of the interesting questions about Fani Willis’ investigation is what the parameters of it are. So she’s notified a bunch of people who were designated as fake collectors, that they are targets as well. And so she is not limiting herself to that phone call. She seems to be interested in the whole pattern of activity. visa vie, Georgia, it’s not clear to me what Senator Graham’s status is in that investigation. He liked Giuliani has an order to testify before her special grand jury, not clear to me whether he’s a witness a target or a subject. So I think you know, this investigation is important because it’s really intense. And it’s going on, it’s focused on one fact pattern. But I think it could be the thin edge of the wedge that is the larger federal investigation. That is, everything that’s at issue here could subsequently be the subject of federal interest.
Andy Slavitt 25:19
Well, let’s come back and talk about the big federal happening, which is January 6, you talked about that a little earlier, we’ll do a break and we’ll come right back. Okay, so let’s talk about January 6 page, we need to set something which I hadn’t thought of, which is that it’s possible that some of these cases combined at a federal level, given that these are this all work going on inside the Justice Department. Aside from the things we’ve learned in the embarrassment, and so forth from the perspective of the House Committee, someone is sitting there in the Justice Department, looking at all this information, doing a bunch of work. Can you help us think about like, in the closed doors of the building, Department of Justice, what do you think’s happening?
Benjamin Wittes 26:28
That’s a great question. And I want to start by expanding it a little bit, which is that people often say the Justice Department when what they mean is the FBI. And these are the FBI is part of the Justice Department. But it is, you know, what the Russians call an autonomous […], and it is really its own institution. And as an investigative matter, investigations are run out of the Bureau, not out of the Justice Department. The Justice Department oversees investigations in important respects. And it makes prosecutorial decisions based on the results of those investigations. But you know, this idea that Merrick Garland or Lisa Monaco is sending agents around to interview people and is kind of doing the investigation is a lot of fanciful nonsense. That’s not actually the way the investigations work. So first of all, let’s zoom out and say this is not one investigation. It is many investigations. It is the largest deployment of federal investigative resources in the history of the country.
Andy Slavitt 27:47
How many investigators does that mean to you?
Benjamin Wittes 27:50
We don’t really know. But it’s significantly larger than 9/11. And the reason is simply that there were several 1000 people who probably committed crimes and they dispersed all over the country. So it involves every single FBI field office, it involves literally 1000s of potential suspects. So far, more than 800, of whom 850 of whom have been indicted for federal crimes.
Andy Slavitt 28:20
And some convictions.
Benjamin Wittes 28:22
A lot of convictions and a lot of please, so let’s talk about baskets of investigative activity. So first, there’s your basket, that is people who physically committed crimes on January 6, that is rioters. And they range from, you know, people who basically trespassed on federal property and kind of didn’t do anything else to people who assaulted cops or broke windows, right that that can carry some serious time, destruction of federal property, assaulting Federal officers, to people who engaged in seditious conspiracy, which is that that is a conspiracy to overthrow the government of the United States. So this is an incredible range of human activity, each of these cases and there’s more than 850 of them now, they keep adding, you know, one or two a week have to be prosecuted separately. So just think of that as basket number one. Basket number two is this Justice Department conspiracy, led by Jeffrey Clark, which led to this effort to decapitate the Justice Department and replace it with a more pliant one that ultimately failed just before January 6. Basket number three is the fake collectors plot. They’re clearly investigating that. Basket number four is the effort to pressure Mike Pence which, you know, goes up to and including calling out a mob to hang him.
Andy Slavitt 30:07
What’s the specific crime that you think they’re looking at there?
Benjamin Wittes 30:11
Well, so I think my guess is that they are looking at all of this under a broad rubric of defrauding the United States. But I don’t know, it’s not clear. And then there’s this final basket of activity, which is, I think, is probably the least likely to produce a criminal case against Trump, which is actually inciting the mob itself. So we know that all of these areas have received some investigative attention. I’ll also pressure on state officials the matter at issue in Georgia, which is also an issue in some other states, right? And so I think all we know that there has been federal investigative activity with respect to all of these issues. We don’t know what the level of it is. We don’t know in some cases like the John Eastman matter and the Jeffrey Clark matter, we know that there’s been probable cause warrants served. But we don’t know how close they are to indictments nor what the shape of any such indictment would look like.
Andy Slavitt 31:23
So Jessica, do you think indictments come to the president here and you can include Mark Meadows just for kicks. But do you think that Ben talks to amount to charges?
Jessica Levinson 31:36
So potentially you had a conversation about obstruction of justice conspiracy to defraud the US by disrupting the Electoral College count. We have already had a federal judge in California who is ruling on basically an evidentiary matter regarding John Eastman, who was, of course, providing the roadmap for this unconstitutional fake electoral scheme. We’ve already had a federal judge say there’s probable cause here that those two federal statutes were violated. So in my mind it Benjamin’s right, I mean, there’s a lot of potential exposure here and a lot of potential players. But in terms of what could actually hit the former president, and or those very close to him, I really would continue to look at those two statutes that the judge referred to the obstruction or attempted obstruction of an official proceeding. And again, that’s about trying to stop the counting of electoral college votes, conspiring to defraud the US by disrupting the Electoral College count, again, related to what we just talked about. And then you have the conversation about, you know, the more serious or crimes that are cut to the heart of what I think people in the common vernacular thing happened. So seditious conspiracy, inciting an insurrection. These are words that I think make sense to people in terms of what they stopped play out on TV, in what they think happened. seditious conspiracy, it’s difficult to prove, right. It’s not a slam dunk, same thing with respect to inciting insurrection. And there’s actually parallels here to the conversation that we had previously, which is, I think, for all of these issues, the key will be tying what happened to the former president.
Andy Slavitt 33:25
I want to move to talk about the end game. But let’s do a quick stop in New York. We put this one behind some of these other cases, we’ve talked about this as being, at least today largely a civil matter. The former President recently invoked his Fifth Amendment Right. Which ain’t a great look for a guy who’s, well, it’s not a good look, in this particular case. It’s also not a terrific look, for somebody who has talked about only guilty people, in fact, do this. Just in a very, very briefly because I’d rather spend time on the on the end game. Jessica, what’s the potential to happen here, to the Trump Organization and to the President and his family?
Jessica Levinson 34:04
Yeah, and I’d love to pick up on why it’s not a good luck, both politically and legally. So what we’re looking at here is basically fraudulently inflating the value of holdings in order to get favorable treatment, favorable loans, favorable tax treatment for write offs, favorable insurance. And so what we’re looking at is defrauding banks defrauding loan officers defrauding, maybe even the IRS here exactly. And it’s basically saying all this stuff is worth more than it actually does. So things like fraud and tax evasion are potentially on the table. We know that there are parallel investigations here. There’s an ag investigation that covers civil issues. There’s a DEA investigation that covers criminal issues. And we also know that this is again based on activities that it looks like the Trump Organization and the former president took before he entered office. All the other things we’ve talked about are really things crimes potentially that he could only commit really, as a government official, this is separate and apart from that.
Andy Slavitt 35:06
So we learned earlier in the week that we actually have the former president’s colleague, Alan Weisselberg, from the Trump Organization took a guilty plea admitting his role in the long running tax scheme. The former president’s business, help us process that. And what that could imply?
Benjamin Wittes 35:30
First of all, my understanding of the plea deal is that it does not involve a cooperation provision. And so I think it’s unlikely to be a kind of breakthrough situation where, you know, you’ve got Weisselberg flipped on Trump. What you do have because of a quirk in in New York criminal law is the ability to stick Weisselberg in front of a grand jury now, and he will not be able to assert the fifth. So I do think you could potentially there could be a criminal consequence for Trump as a result of this deal. Honestly, I think it is unlikely and the reason is the flip side of the point I made about Fani Willis in Georgia, which is, in that situation, you clearly have a prosecutor who has a fire in the belly for the case. Whether you consider that as I do be, you know, righteous indignation on her part, or whether you consider it, you know, she’s an elected da, who’s going to build her career on this, you can be as cynical about it as you want. But she cares about this case a lot. And she’s invested a lot in it. The New York DA, Alvin Bragg has not been terribly excited about this case, he’s backed off of a number of things about it, his top prosecutors on it have resigned. And so it just doesn’t feel to me, like the disposition that he’s heading to is indict the former president. That said, if you put Alan Weisselberg in front of the grand jury and ask him all, all the questions, does it produce the missing pieces of what would otherwise be an indictment of Donald Trump? It’s certainly possible.
Andy Slavitt 37:15
So Jessica, let’s talk about the end game a little bit as we take these four cases. What does this all add up to?
Jessica Levinson 37:23
I think it all at you know, I feel like the theme of our conversation really has been, can you tie the former president to these actions to what happened? And the same is true, frankly, for the conversation you just had about the investigations in New York, which is that we know there was wrongdoing by the Trump Organization. We know that because Weisselberg took a plea deal. And we know that there’s wrongdoing, frankly, with respect, I think each of these buckets that we’ve talked about the big question, because we have a former president who really doesn’t put much in writing, who speaks in code, as his former attorney, Michael Cohen testified to who does many things with a wink and a nod, you know, can you tie him to potential exposure, particularly when the political stakes are so high? And what I would just say is, we have a lot of discussion about, oh, my gosh, can you imagine politically what would happen if a former president is charged with and fill in the blank? But we really also have to focus on oh my gosh, can you imagine what happens if Trump is not charged? Right, because that, I think, with respect to some of the crimes that we talked about here, I think that would be a terrible disservice to the American public to the rule of law, there is a real consequence to saying, well, it’s just politically difficult, it will look like a witch hunt, it will tear the country apart. Guess what, this country has huge fracture lines. And let’s not focus on what’s politically popular when we’re making legal decisions about whether or not to indict?
Andy Slavitt 38:57
You know, Jessica, I think what you just said, if you substitute the word, as you said earlier, presidential candidate for ex-president, or president, and presidential candidate, the stakes is you talk about, go up. And you know, you’ll have half of the people that have been some large portion of people feeling this person never faces consequence for their legal actions. Or you’ll have some large tech or people saying this has been the most brutal takedown and conspiracy to prevent someone from being president and both sides say, see, this is proof that we are no longer a democracy. That’s the one thing they will agree on for different reasons. What do you think the end game is, Ben.
Benjamin Wittes 39:41
I think there is very likely to be an indictment. And I think the reason for that is, if you look at the story that the January 6 committee tells, it is a horrifying story. It’s a story of a kid ordinated months long effort across a number of different dimensions, by a sitting President to retain power after losing the election, by corrupting the performance of federal officials and state officials across a number of different states. That is an egregious, egregious crime, leave aside for a moment how it maps on to federal criminal law. And one thing we know for sure is that the Justice Department’s ability to collect information about that conduct is dramatically in excess of the one six committees ability to do it. It has bigger, more powers, they’re there, they’re more robust. And the various defenses that people used to stiffed the committee or to withhold stuff from the committee are generally not available to them in the context of a grand jury investigation. And so I think you have to imagine that the facts are much worse, much more delighted that we have access to more detail at the federal grand jury level, for example, Mark Meadows has conversations with the President, the grand jury is going to get that. And so when you flesh all of that out, and then you say, how do you not indict this? And it will map onto some federal criminal offense because almost all bad path fact patterns do. How do you not indict that? What do you have the Justice Department for? If not to indict that? And so I just think when the investigation is done, it’ll be indicted because the conduct is really, really bad
Andy Slavitt 41:57
Speculation on top of speculation, I presume, Justice Department doesn’t indict. And without a very, very high probability that they think you’ll be found guilty. Correct. So but I’ll ask the question anyway, both of you. If he is indicted, what do you think the likelihood is? That he’s found guilty? And while it’s very difficult to answer, because we’re not even sure which crime he ultimately would be charged with. Do you think that there’s jail time, if he’s guilty? What do you think’s gonna happen, Jessica?
Jessica Levinson 42:28
I’ll take the second part, which is if he in fact is found guilty, and of course, it depends on what the specific crimes are, then yes, these are crimes, the ones we’re talking about that do carry jail time, that do carry time in a federal prison. One thing to mention, there’s a lot of discussion about one of the federal statutes that issue would say that a punishment is that you’re disqualified from holding future federal office, I think that doesn’t apply. And I think people should know that because the Constitution is supreme, and the Constitution sets out the qualifications to be president. And that’s obviously one of the big punishments or consequences that people are focused on, you know, will he in fact, be indicted? I will say every time I watch a January 6 committee hearing, I think, how could you possibly not move forward? If he is indicted, will he be convicted? I think the Department of Justice, as always understand you don’t bring a case unless you believe you can prove it beyond a reasonable doubt. And that shows how it would be true in this case.
Andy Slavitt 43:33
Let’s all get out of our lanes for a second, as we close the show. This is out of the political lane; this is out of the legal lane. This is in kind of we’re all citizens of the country, lane. And let’s just say that situation occurs. And look, the three of us are as good as any three people to have this conversation. So I’m not expecting that anyone knows the expertise, but like what goes down in this country? If, in fact, what you’re talking about, which has certainly no guarantee, but at least a high probability or likelihood of happening, actually happens? What goes on in this country? I don’t know that it’s apocryphal to use the word civil war. I don’t know that it’s after watching what happened on January 6 at the Capitol, I don’t know that there’s anything that’s an apocryphal statement. What do you think? What goes through your head?
Benjamin Wittes 44:18
I mean, look, I think we are in a period of heightened political violence, and of a variety of different sorts, and this is likely to exacerbate that. And, you know, we’re not in a period of heightened political violence compared to 1968 to 1972, of course, right? But I guess the question I would come to is, are you willing to be extorted out of what you believe as the Justice Department is the right answer if that’s the judgment that you come to because you’re afraid of it, because you’re afraid of the political reaction, I would hope the answer is not.
Andy Slavitt 45:07
That’s the for question for Garland. Right?
Benjamin Wittes 45:09
I think it’s actually a question for Biden, Garland’s job is to make the decision, should we indict this, is this conduct worthy of indictment as the public interest favor indictment? There’s an argument for Joe Biden, that we shouldn’t put the country through that. And that would be through the exercise of the pardon power. And I think that, but that’s a different and purely political calculation. Maybe if you’re really afraid of political violence, in response, maybe the right answer is for garland to bring the case. And for Biden to cut it short. I don’t know. That’s not my department. Really? I wouldn’t pardon the guy. But yeah, but I, but I think I think that the right address for that concern is more of the presidency than the Attorney Generalship and my view.
Andy Slavitt 46:00
Okay, Jessica, let’s give you the last word here. What do you think the consequences are like what happens to our country in this scenario?
Jessica Levinson 46:10
So I think there will be violence. I don’t know how exactly it looks. But we’ve certainly saw it in our nation’s capital. And that means it can be anywhere, right? There’s no place that’s immune. What I worry about is that, and I know you said, let’s get out of our lanes. So I’m gonna go back into my lane for a minute, which is, I really do worry about what that means. For us as a country in terms of holding elections. There’s a big election law case, that’s before the Supreme Court next term that could give state lawmakers a lot more power. And I wonder if working basically hand in glove with the Supreme Court and dissent, a diet of disinformation, whether or not we could just lose faith in free and fair elections. And we know what happens at that point, our country really becomes unrecognizable. And I love this podcast, and I’m sorry to end on that note, but that truly is what I’m worried about. I am worried both about people actually being killed. And I am worried about the destruction of our democracy. There’s no guarantee that we keep, it right? We keep it because we have faith in it. And I worry about us all losing that faith.
Andy Slavitt 47:20
That is a great point. And sobering, sure. But I think you said the right point, which is, you got to work at it. We are in unchartered territory. Should we face some of these situations we’re going to face there’s a lot of things very difficult to anticipate. But you guys gave us at least a sense of what the roadmap might look like, what the issues at hand are, and how to watch things step by step. We live in interesting times. Thank you both so much for being in the BUBBLE.
Benjamin Wittes 47:55
Thanks for having us. Thank you.
Andy Slavitt 48:12
Okay, next week, I gotta say, it’s probably Kyle, who’s our executive producer, and my two of our favorite shows are gonna be coming up next week. Kyle, why are you so excited about Monday show?
All right. All right. All right. Three words, one man, Matthew McConaughey.
Andy Slavitt 48:32
Why are you excited about that show?
Why no, Andy, you remember, I called you right after the shooting in Uvalde. And I was like, we should reach out to Matthew McConaughey. He had been at the White House. And I just felt like, of a person who fit our show and would have a great interesting conversation about important topic with you. He was right on the top of my list, and we’re always shooting for the stars here. That’s a big get it was a big get I you know; I’ve probably my eyes are a little bit bigger than my stomach. And I was like, yeah, sure. Let’s do it. And it comes together. And we’re gonna have a great time with him and talk about his new book and his movies and why he’s trying to make a difference in the world.
Andy Slavitt 49:11
And those six days around Uvalde. I had to tell you, like, sometimes I get a little bit nervous about having entertainers on our show. But I thought this was an interview exactly as you predicted it would be of incredible substance. We got into what was going on around those six days, that everybody was focused on around the shooting when he went to Washington, and that a lot of his broader thoughts on life like a lot when we lost his dad and what that made him think a lot of things that people can relate to. So hopefully it was everything you hoped it would be Kyle.
I can tell you that and I told you this when we recorded it, it is more than I ever imagined.
Andy Slavitt 49:50
A little bit about Wednesday. How do you feel about Wednesday show?
Tony Fauci, my first time I ever got to interview Tony Fauci what an exciting moment for me and on his return. Chairman tour, I was glad we could be one of the early stops answering your top 10 questions. You know people always have questions for Dr. Fauci about COVID About monkey pox. Should I get the polio vaccine? What are we doing there? Like, nobody knows it better than him, And what a one two punch.
Andy Slavitt 50:19
Thank you audience for soliciting. Giving me your questions. You have a lot of questions. What I loved about Tony is he actually answers them.
Right. And has answers, and it isn’t just modalities and multidomain strategies, he had real practical advice. And real, this is how I would handle it. You handle it your way, but this is what I would do. And this is what I would suggest. And that’s all we can ask for.
Andy Slavitt 50:42
So next week IN THE BUBBLE, McConaughey and Fauci. That’s, you know, people use that expression all the time, McConaughey and Fauci, they’re commonly said together, aren’t they?
Two great tastes that go great together.
Andy Slavitt 50:52
Oh, that’s chocolate and peanut butter. Which one of them chocolate which one of us peanut butter? It’ll be fine. Well, et’s think about that. As we get over the weekend. Have a great weekend everybody. Really look forward to next week shows and I hope you’re enjoying your summer. Peace out from Kyle and me.
Andy Slavitt 51:16
Thanks for listening to IN THE BUBBLE. We’re a production of Lemonada Media. Kathryn Barnes, Jackie Harris and Kyle Shiely produced our show, and they’re great. Our mix is by Noah Smith and James Barber, and they’re great, too. Steve Nelson is the vice president of the weekly content, and he’s okay, too. And of course, the ultimate bosses, Jessica Cordova Kramer and Stephanie Wittels Wachs, they executive produced the show, we love them dearly. Our theme was composed by Dan Molad and Oliver Hill, with additional music by Ivan Kuraev. You can find out more about our show on social media at @LemonadaMedia where you’ll also get the transcript of the show. And you can find me at @ASlavitt on Twitter. If you like what you heard today, why don’t you tell your friends to listen as well, and get them to write a review. Thanks so much, talk to you next time.