Lawfare Daily: Trump Trials and Tribulations Weekly Round-up (September 5, 2024)

[Intro]

Benjamin Wittes: Hey folks, quick programming note. After we recorded this edition of Lawfare Live on Thursday, Justice Juan Merchan in New York decided to postpone the Trump sentencing until after the election. This was recorded while we were still expecting that maybe to happen on September 18th.

Anna Bower: I think that the, one of the key lines of the day was when Lauro said, as the Supreme Court has said, this case involves the presidency of the United States and Judge Chutkan interjects to say, I'm not talking about the presidency of the United States. I'm talking about a four-count indictment.

Benjamin Wittes: It's the Lawfare Podcast, Trump's Trials and Tribulations. I'm Benjamin Wittes. Lawfare's Editor-in-Chief, here with Lawfare's Senior Editors, Anna Bower and Roger Parloff.

Roger Parloff: If nothing else, this is very cathartic to read. I don't know if it'll do the trick, but it's a well written brief. And it's quite interesting.

Benjamin Wittes: In a live recording on September 5th, we discussed Thursday's hearing in the DC case, Judge Chutkan’s scheduling order on the briefing on immunity issues, Trump's efforts to remove his New York hush money and election interference case to federal court, an interesting amicus brief in the classified documents case. And of course, we took audience questions.

Anna Bower: Lauro tried to suggest that the Supreme Court specifically said that she should deal with the Pence stuff first. Of course, what the Supreme Court was saying there is this trial court's going to get the first go at it, and then it'll come back up to us and we'll decide. So it was a quite inventive reading of, of that particular line in the Supreme Court's order.

[Main Podcast]

Benjamin Wittes: Hey folks, Ben Wittes here, coming to you from the bathroom at Mar-a-Lago. I am joined by Roger Parloff in the famed sconce studio and Anna Bower in the what I forget what room that's the name of, the doctor's waiting room studio-

Anna Bower: Yeah, the doctor's waiting room-room, in the palatial mansion, because, of course, the palatial mansion includes an entire wing for all of my health and medical needs, so.

Benjamin Wittes: Right. Including a waiting room. Alright, we are going to talk about, it's going to be fabulous, we're going to talk about all the late breaking developments in the District Court in Washington. But before we get there, folks, there's a really important thing we've got to talk about. Which is the body cam footage of Fani Willis and Nathan Wade, because, whoa! This has reached peak reality show TV. Anna Bower, what do we have on camera?

Anna Bower: Yeah, so, a story came out a few days ago that I, you know, thought to myself, this is so irrelevant, why is anyone reporting on this? It was about Fani Willis’ daughter getting pulled over for driving on a suspended license. It seemed totally irrelevant to anything happening in Fulton County. And then, of all outlets, the Daily Mail-

Benjamin Wittes: That font of-

Anna Bower: -published a piece that included body camera footage of the event. And, lo and behold, who shows up in the wake of, of Fani Willis' daughter being pulled over other than Fani Willis and Nathan Wade, the former special prosecutor, who, it was the relationship, the romantic relationship between Nathan Wade and Fani Willis that of course, led to Trump's case in Fulton County being put on pause for several months. We have hearings coming up in December in that case. Really Ben, we don't need to spend long discussing it because Nathan Wade is no longer the special prosecutor. He resigned. But it does, you know, raise some optics questions. There is a pending appeal.

Benjamin Wittes: You don’t say!

Anna Bower: There is a pending appeal. The pending appeal relates to claims that the district attorney and Nathan Wade were not fully candid about the timing of both the beginning and the end of their relationship. They claim that the relationship ended in August or July before the indictment of Trump and, and others in Fulton County. Of course, it could very well be that they're just friends still. It could very well be that you know, they, as they've claimed, that they grew closer after the evidentiary hearing that kind of caused a media storm back in February. However, it is still not great optics when you have a pending appeal that is about this relationship. You've said that the relationship is over. And, and yet, you know, Nathan Wade continues to appear publicly, you know, with Fani Willis and, and in her orbit. Again, these are two people who have absolute freedom to be in a relationship and maybe that is their choice if they are in one. But again, we, the only reason we raise it is just because it does seem to present a kind of optics issue going into this appeals process.

Benjamin Wittes: No, no, no, no. There's another reason we raise it which is that, you know, what are the Trump Trials and Tribulations, if not great reality TV? And who is the best reality TV characters in this whole thing? I'm sorry, Boris Epsteyn, but you have not outperformed Fani Willis and Nathan Wade. I have one question.

Anna Bower: Okay, but what about David Pecker?

Benjamin Wittes: Well, David Pecker had a moment, but he doesn't keep coming back the way, the way these two do. Okay, I have one question about this very important episode, which is, did Nathan Wade reimburse or get reimbursed the cost of the ticket in cash?

Anna Bower: Well, it was Fani Willis's daughter who was ticketed, so I, so I have no idea because it seems that, but whether Nathan Wade, I, I can't remember who in the video was driving. I think it was Fani Willis, but so I don't know if maybe there needs to be some kind of reimbursement there, but no, I don't know, Ben. I'm sure that if there was a reimbursement, it was, it was potentially in cash.

Benjamin Wittes: All right, we are going to move on to the high-minded stuff that this show is known for. No bodycam footage here. In fact, no footage at all, because in the much-vaunted U.S. District Court for the District of Columbia, Judge Tanya Chutkan presiding, there is no camera. There is only Roger Parloff live tweeting, and that's how we find out what happened. That's how I found out what happened today. So, Anna, while Roger was, you know, typing away, you were in the courtroom. Give us the scene. What happened at the status conference today where there was no bodycam footage?

Anna Bower: Yeah, well, Ben, there definitely was no bodycam footage because there's no cameras or audio recording allowed in federal court. But it was the first hearing that Judge Tanya Chutkan has held in this case in nearly a year because the case has been on pause while the immunity ruling was appealed by Trump. That appeal ate up several months. Finally, Judge Chutkan got the case back, directed the parties to brief the issue of how the case should proceed following the Supreme Court's immunity ruling. And so going into this hearing today, it was very much a back-to-school feel. And, and it was fitting because of course it is early September. It’s almost fall. There's this feeling of change in the air. It's right when everyone's going back to school. And that very much is how it felt today, I think for members of the media and for court watchers who were there on the fourth floor. Roger, you were down in the media room, but I was up on the fourth floor in Judge Chutkan's courtroom. Trump, however, was not there today.

The second issue that was on the agenda was Trump's arraignment on the superseding indictment, that new indictment that Jack Smith and his team went to a grand jury and a grand jury returned and it pared down the case. It removed, I believe, prosecutors today estimated about nine pages of the case were removed. They did add a few additional framings, but really the case was slimmed down to comport with the Supreme Court's immunity ruling. So those were the two things on the agenda. Again, Trump was not there for that arraignment, but he was arraigned in absentia. That did not take very long at all. It was essentially just Judge Chutkan kind of saying, you know, to, to John Lauro, you know, do you want to waive the reading of the indictment? Does your client plead not guilty? That kind of thing. It was very you know, only a few minutes.

Most of the hearing was about this issue of how the case should proceed. And I think that I'll hand it off to Roger to discuss the substance of that. But I will just say briefly for some more color, Trump was not there, but Jack Smith was there, sitting in the gallery. He left it to the lead prosecutors of the case, Molly Gaston and Thomas Windom, to deal with matters before Judge Chutkan, but Jack Smith was there observing closely with a beard that I noticed was very long and unruly this time around. I, he usually has a, he does have like a beard in terms of, but it's typically a little bit more closely shaved. And so it was quite interesting because there were some jokes that people who were watching were making about you know, Jack Smith being too busy dealing with you know, a, a judge throwing out one of his cases and then the Supreme Court deal ruling in the immunity issue. He's basically just been in a cave briefing issues for the past few weeks. And so he has this beard that is kind of just growing longer and longer all the while. So-

Benjamin Wittes: How was the icy stare, though?

Anna Bower: Well, Trump wasn't there, so there's no icy stare, but you know, he's a man with many icy stares, so I'm sure that there were some of those, but I think he saves the iciest of stares for Trump.

Benjamin Wittes: All right, Roger, let's talk about the business of the day. What happened today and how did it compare with what you expected to happen?

Roger Parloff: It was about what I expected. I sort of had hoped for insights into a couple things that I didn't get insights into. All of that will have to await, I think, the government's first filing. I think it's pretty clear she's going, you know, there was a status report. The joint status report was filed August 30th, and the government had one path and Trump had another. I think it's pretty clear it's going to much more closely resemble the government's proposed path. And the main-

Benjamin Wittes: Give us a, give us a brief summary of how each side would have this go.

Roger Parloff: Yeah, the main dispute is, and it sounds trivial, but you'll see why it's important is who goes first. The government wants to go first and say, okay, here's our view of why, and that is a little unusual because usually this is, you know, a motion to dismiss really. It originated as a motion to dismiss so ordinarily the defense files the motion, the government responds, the defense replies. The government wants to go first. It will explain both why it thinks the superseding indictment is fair game, either unofficial or if it's official you can rebut the presumption that it's immune. But in addition, it will also discuss categories of unpledged evidence and, and so that it wants to introduce. Because, you know, an indictment never contains anything remotely like all of the evidence that you plan to put in. In fact, it doesn't have to, it doesn't have to contain any evidence. You could just cite the statutes and then, you know, fill it in a little bit in a bill of particulars. So, they want to go first so that everything can be on the table. Trump wanted him to go first, them to go first, you know, the conventional way.

So, to me, initially when I read that, I sort of stupidly thought, oh, this is about who gets the last word, because, you know, you file something, the other side responds, and then you reply so you get the last word if you go first. But no, what it's really about is the impact that this could have on the election. You know, if the government goes first and it's before the election and they say, look at all this evidence that we need, you know, and a lot of it has never is not in the indictment, so we might be seeing it for the first time. I mean, it's hard to believe there'll be a lot we haven't seen given the January 6th Committee. But you know, they'll be presenting a ton, a lot of evidence and that's really what Trump wants to postpone.

So in Trump's version, he not only wants to go first, but he wants to put things ahead of the immunity motion, so to make sure none of this happens before the election. And so he wants to discuss first, he wants to raise, they never raised it here, the, the issue of whether Jack Smith is properly appointed. Because there's an important jurist down in Florida who has decided that he's not. And of course, they had, and you know, it's way past the deadline to file your dispository motions, your Rule 12 motions, which is what they should have been. And in addition, there are two D.C. Circuit rulings that are binding on Chutkan that say, you know, people like Jack Smith are properly appointed. That's probably why they didn't file it. But they could have filed it just to preserve the issue. In fact, it would have made sense if they did, to preserve it in case it went to the Supreme Court. Anyway, they wanted to do that first, and, and to stall so that all of this would be put off. It looks like she's going to let the government, I mean, because even Trump realizes he has to let Jack Smith go first, at least with a letter to tell him about what the unpledged evidence is, the evidence that they want to put in that isn't in the indictment.

There's one other way that they plan to postpone and delay this process, that Trump would like to delay this process. And that's by dividing up the immunity argument into two pieces and litigating them piecemeal, apparently, as two interlocutory appeals. And the first would be, you know, just to focus on the Pence allegations, the Vice President Pence. Because remember, the court said, unlike all the rest, the court did say, look, the Pence stuff is official. It might be you can overcome the presumption that it's immune, but it is official. The rest, we don't even know if it's official. That, that, that's what Chutkan- So they want to litigate Pence first on the theory, the stated theory that because we think we can knock that out and then the whole case craters. I don't know if the whole case craters. They're saying that's in part because this grand jury saw that evidence and so you would probably have to go through, you might have to go through another grand jury. That doesn't really take a lot of time. So that's their theory: Let's do this and maybe the whole case craters and we don't have to do the rest and you'll save a lot of time. She thinks, and the government thinks, this is just an effort to slow things down by having a piecemeal interlocutory, do two interlocutory appeals instead of one.

Anna Bower: Yeah, just-

Roger Parloff: So that was the key thing.

Anna Bower: Yeah, and just to clarify, I mean, Roger just said it, but just to clarify for folks why they would slow things up if she, just exclusively looked at the Pence issue first. It's because if she decides that, then there will be an interlocutory appeal. It'll go up to the D.C. Circuit, eventually to the Supreme Court. And then it'll come back down and then she'd have to decide on all the other factual questions around, is the other evidence in the indictment actually official conduct? Is it subject to immunity? Are all of the unplead facts, so things that might be introduced at trial that aren't in the indictment, are those official acts that need to be, you know, taken out under the court's evidentiary ruling? The part where they said, even if the indictment is scrubbed of immune conduct, you still can't introduce official conduct that is subject to immunity at trial. So, that's kind of why it would be gumming up the works if she just looked at this question of the Pence conduct. And, and the government made it very clear when they were arguing at that, they want her to consider everything because their view is that the best way to go about it is that all of the immunity things should be subject to one single interlocutory appeal as opposed to multiple interlocutory appeals.

And then one other thing I will add to what Roger mentioned, he mentioned, you know, Trump's team wants to go first. The government thinks that they should go first, so there are differences there. Trump's team wants the Pence stuff to be decided as a first question. But then the other kind of difference between the parties as well, that came out at the hearing today is that the special counsel's team, as Roger mentioned, wants to do a proffer of the evidence and its brief. So it wants to write a factual descriptions of the evidence both in the indictment and then outside of the indictment that they would presumably want to introduce a trial as a part of its argument about why this stuff is either not official or not immune because it can overcome the presumption. But according to Trump's counsel, they think that for the most part, this can be stuff that is argued as a matter of law, particularly the Pence stuff. They argued that the question that has to be decided around the Pence conduct is whether the Special Counsel's office can overcome that presumption of immunity by showing that there's no danger of intrusion on the executive branch, if the conduct would be subject to immunity. That's the test laid out in the Supreme Court's opinion. And according to Lauro, all that the Supreme Court's opinion requires is that the judge decide that based on briefing about the law, as opposed to, you know, bringing in additional evidence or facts. Roger, if you understood that to be, I hope that that is how you understood it as well. But, but I think that that's kind of a third issue of disagreement between the parties today, was that question of, is it a factual matter? How much evidence does Judge Chutkan need? Or can it be just decided as a question of law?

Benjamin Wittes: All right. So let me try to simplify all of this to a very simple core disagreement. And you guys tell me whether I'm oversimplifying or wrong. Seems to me the government is saying, let us put forward all the evidence we want to use. You snipe at it as much as you want, you respond. And then Judge Chutkan, you issue a series of rulings about what we can and can't use and then you guys, the defense, take whatever up on appeal you want. We do it all in one consolidated shot and one interlocutory appeal, then the Supreme Court or the D.C. Circuit has its say. We get back and we can set a trial date.

Anna Bower: Yeah. Oh, go ahead.

Benjamin Wittes: The defense says, screw all that. Let's have a threshold litigation over whether the Pence stuff gets rid of the whole case. We'll have a, we'll argue that. We'll have a interlocutory appeal over that. Then we can come back and we can do these discussions of other issues and we can appeal that. Is that a fair summary? Admittedly a little bit simplified, but is that a fair account of the dispute?

Roger Parloff: I think that's, I think that's right. And there are, yeah, I think those are the key things. There's other side issues. Trump also wants discovery before, you know, he has to respond or even file, you know, even file his opening brief on this because there were some open discovery issues at the time that everything was frozen back on December 7th. And some of those, I guess, there might conceivably be discovery issues relevant to immunity. But I mean, I think those are the key disputes.

Anna Bower: One thing I'll add, Ben, is that you mentioned that in the government's proposal, it would be this proffer of evidence. There'd be a response from the defense. And then Judge Chutkan would rule. But the government also made clear, and I think Judge Chutkan mentioned this possibility as well, that after there's the proffer and the initial briefing, it could very well be the case that Judge Chutkan says, I need to bring live witnesses in to hear about this, because all of the briefing would just be on the papers. It would be documentary evidence. So, things that, you know, could be included in an exhibit or that kind of thing. It wouldn't be that you have a witness coming in testifying subject to cross and that kind of thing. But the government very much left it open that at the end of this initial process, she could within her discretion as the trial court judge say, I need some, some live witnesses because I need more information on this stuff.

Roger Parloff: And the government, that's a good point, and the government was very open to that. You know, they said, that's your decision. We brief it and then you decide what, what additional information you need. But, and then there was something that confused me and I don't know if, Anna, what you made of it. But there was one question to Lauro where Chutkan said, so, do you want to hear evidence? And, he said, he seemed to say well, it might come to that. We might. And I was a little confused because the bulk of his presentation was that you certainly don't need evidence. And I don't know what he meant by that. In his written papers, it looked like they might have wanted some sort of, you know, secret depositions that sort of, you know, they might want to depose, I'm not sure if that's what they were talking about because the idea of a public hearing. But what did you make of that exchange or did you not hear it that way?

Anna Bower: So, you know, Roger, I admit that I think that this is a situation, which we don't have a transcript, but it would benefit to look at the transcript about this exchange because there were a few moments in which I was confused about exactly how Lauro wasn't contradicting some of his positions. Because there were times in which he would say, well, Judge, these witnesses that they've had have been, you know, they've been able to interview them. We haven't had these witnesses subject to cross. There's all this exculpatory evidence that we would want to put forward because, you know, it shows that President Trump is innocent. He would say things like that at one point. But then at other points he would say, well, Judge, we don't think this is a question of law that we just think you can decide based on input from counsel.

It seems to me like maybe what's going on there is that he's taking the position, especially on the Trump, excuse me, on the Pence conduct question that that is a pure question of law, that there doesn't need to be evidentiary, you know, inputs. It's just an argument kind of question. And then he's saying maybe like, if it gets to us arguing over the rest of this stuff and having to introduce more context on some of these other things that the Supreme Court didn't decide if it's official, then it might come to us, you know, needing to or wanting to either cross examine people or introduce documentary evidence through exhibits. He mentioned that they would want a bunch of grand jury testimony unsealed. That was a point of contention. So it is a little bit confusing to me, Roger, exactly what it is that he wanted at different points, but I think that maybe it has to do with the fact that they want that Pence stuff dealt with first. And then they're kind of saying, well, if it comes to us having to get to this other stuff, you know, it may be that additional facts need to come in at some point.

Benjamin Wittes: Look, I'm working here only from Roger's account of it, on Twitter. But I took it to be, they're trying to leave open their possibilities. Is it conceivable that they might want to call a witness if the other side is calling a whole bunch of witnesses? Sure. Do they, would they rather that the whole thing be resolved on the basis of, you don't get to use the Pence stuff, therefore, the whole indictment falls apart, therefore, we can rule on the papers. Yeah!

Anna Bower: Yeah, I think that's right.

Roger Parloff: There was also definitely a, a sort of threat that, oh, if you're going to present evidence, you know, in any form, you know, in this writing before the election. We want to have a chance to unseal, you know and very stagely, you know, these unbelievably exonerating things about our client that allegedly exist in the grand jury. And we can't do it right now because of the protective order. And so there was sort of a tit-for-tat thing that maybe we should both, just, I think they were trying to say put it off. But we may see some sort of motion to unseal something. But he got very, Lauro was very explicit about the election stuff at one point, he said, it's incredibly unfair that they get to put into the record these, this factual evidence at this terribly sensitive time in our nation's history. And Judge Chutkan really was having none of that. She was saying, I'm not taking the election into account in any respect. You know, that's out.

Anna Bower: Yeah, I think that one of the key lines of the day was when Laurel said, as the Supreme Court has said, this case involves the presidency of the United States, and Judge Chutkan interjects to say, I'm not talking about the presidency of the United States. I'm talking about a four count indictment. And, and so there were a lot of moments like that in which Judge Chutkan made it very clear, as she has, and, you know, to her credit, this is something that has been very consistent with her is she has said from the beginning, I am treating this like any other criminal case. I am not taking any kind of electoral matters into account when I'm setting my schedule and dealing with this case. And she was very insistent that this is a case that needs to move forward. And basically, we need to get going with it because it's been on pause for a year. And you know, making sure that she was clarifying that it wasn't because of the election, but because there is, you know, an interest in moving a criminal trial forward.

Benjamin Wittes: All right, so where did we leave things in this regard? She says she's going to issue an order by the end of the day. That order is going to have a schedule for what, Roger?

Roger Parloff: Yeah, you know, probably by the end of the day. She said, I'm not going to issue it at the hearing. I'm going to try to issue it today. So, it will have this schedule for the immunity stuff, which will obviously, she was very clear. She thought it was clear from the ruling and from other immunity rulings that that has to go first. But it was also clear, and I was surprised that both parties seem to agree on this, that other stuff could go on concurrently. So there will be, there are other motions pending, and the government.

And she said also, so in your motion you wrote that you were prepared to file this promptly at any time. What did you mean by that? Any day? Any, any week? And, and he basically said, this was Tom Windom, for the government, two or three weeks. And then he said three weeks. So it sounded like September 26th was the most likely deadline for the first filing. And then there really wasn't discussion of how much time, it sounded like Trump would want a lot of time to respond. So, but I, I'm looking for something that will say that his filing will be, that the government's filing will be around September 26^th, and there will be other deadlines, interwoven. The, Trump will be expected, probably expected, to file motions the same day on some other issues like, remember the Fischer issue and the statutory challenges to the indictment over statutory problems. And so, in fact, there are discovery deadlines that were interrupted.

So, it will include, it will get pretty into the weeds.

Benjamin Wittes: And so-

Roger Parloff: There was there was sort of a funny moment to me where he, she was talking about, you know, where things stood when the stay took effect. You know, like, you had five days left on your, you know, to produce your, your list of witnesses. You had, you know, three weeks left on your motions in limine, and you really got a picture. It reminded me of like, you know, in Pompeii, when you see those people embedded in lava from, you know, fleeing the, you know, 2000 years ago, it just exactly, you got a sense of where everything was when this froze, you know, in December 7th. So, anyway, she's trying to get it back.

Benjamin Wittes: So it looks like we have an order from Judge Chutkan.

Roger Parloff: Oh! See-

 Anna Bower: Oh! Why does this always happen to us? Every four o'clock on Thursday?

Benjamin Wittes: You know, it's cause there is no day that is safe. So we will as soon as we, I can get my hands on that. Oh, there we go! Thank you, John Hawkinson. So what this says is-

Roger Parloff: Yeah, I can read it too.

Benjamin Wittes: Yeah, so Roger, why don't you take a look at that while we are talking about other things and then we'll come to you in a second. So my takeaway from this is that she is eager to move on terms reasonably favorable to the government. But is mindful of the fact that the Supreme Court has a very different attitude about this than she does. Is that consistent with the way you saw it, Anna?

Anna Bower: Yes. I mean, you know, Judge Chutkan did make some pointed comments. At one point, I need to look back to see the exact quote, but she made a comment that at one point she said something to the effect of, you know, I read the Supreme Court's opinion to say this. And then she said, but it is an opinion that's subject to many different interpretations. And it seemed to, the tone that she said it in, seemed to suggest that she was recognizing that the opinion did not give clear guidance to a trial court judge. And so that was quite interesting. But yes, Ben, I think that's right. I will say something that I think was, you know, just from a strategy perspective, that was smart on the special counsel's part. Remember in their proposed brief for the schedule going forward, they did not actually suggest any, you know, this is how fast we need to move. This is when we need to do all this. They said it's up to the judge. It's up to Chutkan’s discretion to decide those issues. And I think they were making the bet that she wants to move forward with things quickly and get things back on track and that she would want to address the immunity motion first. And then today when she said, you know, so if I give you the date of September whatever, you'll be able, you'll be prepared to meet that. And they said, yes, but to be clear, judge, it's up, it's to your discretion to decide the timing of this. And I think that that gives them kind of, the ability to then, you know, avoid any allegations from Trump that they were pushing ahead to get things out in front of the election and that they, that it was politically motivated, that kind of thing. And reading this now, this order, it looks like Roger was right on the money with September 26th. The government's brief on immunity being due then. So, Roger, well done.

Benjamin Wittes: Yeah, so Roger give us the relevant part of the order. What's the briefing on immunity going to look like?

Roger Parloff: Well, it's the government's brief on immunity is September 26th, with defendant's response and renewed motion to dismiss based on immunity due October 17th. Government's reply and opposition due October 29th. Yeah, and then there are other things mixed in. There's one thing, though, I don't know if it's related or separate. It's earlier in the order. It says government's evidentiary disclosures due September 10^th. So, I don't know if that is referring to the disclosures we were expecting to see when-

Benjamin Wittes: I think that's only with respect to the motion to dismiss based on statutory grounds.

Anna Bower: Oh, I think that that's related too, because remember Roger, there were a lot of complaints from, maybe I'm wrong about this. But there were these, you know, issues that Lauro was bringing up about discovery that has not been handed over to them. I think that, and then the government responded by saying, we've turned over everything that we have, but we can do any additional, you know, disclosures by tomorrow if we need to, because we don't have anything else to hand over. And so I think that maybe that's what that's related to but perhaps I'm wrong.

Roger Parloff: Yeah, I don't know.

Benjamin Wittes: All right. Well, we will ponder this and we will make any supplemental disclosures that we need to make by September 10th. Let's take a quick hop to New York, where the former president is facing imminent sentencing, if he has sentencing, which he may not. Because the judge may decide not to go forward with sentencing, or this Judge Hellerstein may decide to seize control of the case, or something else may happen. What the hell's going on in New York?

Roger Parloff: So, on August 29th, Trump filed something styled as his notice of second removal and to, in the federal court and Judge Alvin Hellerstein in the Southern District of New York. That's where he tried to remove the case in 2023 at one point. That time it was denied and he appealed, but then he withdrew his appeal. So, this was a 64-page motion, and it really was not very focused. It raised every issue that they have grievances about, you know, beginning with Justice Merchan isn't fair, Merchan isn't fair, his daughter, you know, works for Democratic interests and even Kamala Harris. But, and then way down the line, it also got into, and by the way, there's been another Supreme Court ruling that having to do with immunity. So it was honestly, it was hard to work with. But the clerk refused it for filing because, and I don't think this is crystal clear really but, one way of reading the statute is it's untimely and you need leave to file. So it was bounced by the clerk. It didn't even get to Hellerstein, I don't think.

Then, so on Tuesday after the holiday, they filed a new, they filed a motion for leave, and about six hours later, Hellerstein rejected that. And he said, and it's a four-page ruling, and he said well, first of all, you know, everything that you want me to rule on that Justice Merchan has already ruled on, that's not what I do. I'm not an appellate court, you know, we don’t, I. I don't do that. And then as far as the, you know, Supreme Court ruling, he didn't see anything that changed the fact that you know, he previously ruled that hush money for a porn star is not an official act. Now, you know, I could have imagined, it could be that if you pour through that 64-page thing, you can concoct a better argument for why the Supreme, you know, the Supreme Court ruling might change things. But it is true what the statute says is: a criminal prosecution that is commenced in a state court that is against or directed to any of the following may be removed, dot, dot, dot, any officer of the United States for or relating to any act under color of such office.  So, you know, if you see the acts as being the ones that he was indicted for, those are, I mean, Judge Hellerstein is right, nothing has changed. If you see the part of the ruling about ever using official acts as evidence of crimes that involve unofficial acts, if you think that satisfies what is it, relating of, for or relating to any act under color of such office? Then maybe things have changed. I think Hellerstein's right. I don't know if he gave it even that much attention, frankly.

So this has now been appealed to the Second Circuit. They're trying to get an administrative stay, and it's unclear what administrative stay means. It's unclear, by the way, if you can appeal a denial of a second removal petition. And also remember that this is not like a civil, you know, in a civil removal, like if you bring a civil case and somebody moves it into a federal court, the state court loses all jurisdiction just like that, and until it's remanded, they're powerless. That's not how it works in a criminal case. What the statute says is the state court can continue making rulings on anything except entering a judgment of conviction. So, Merchan can still rule on the immunity issues. He can rule on when the sentencing should take place and the way the people interpret it, and I was a little surprised about this, he can even hand down sentence.

Benjamin Wittes: He just can't enter the judgment.

Roger Parloff: He can't enter the judgment, which is ordinarily done, you know, a few moments later, you know, it's basically, you put it in writing and enter it. So, that's, that's the murky place where that all stands.

Benjamin Wittes: All right. So what do you-

Roger Parloff: Oh, and one other thing is important. In the course of filing its motion and the people filed something in the Second Circuit, the federal court saying why it shouldn't enter a stay. And it mentioned some of these things, but it also showed an email we haven't seen before, even though it goes back to August 19th, when Justice Merchan told the parties that he was going to try to rule by today, as it turns out, whether to put off the sentencing. And Trump had asked to put it off till after the election. I don't know if we knew that. And the people took no position. I can't remember if we knew that. But anyway, it's supposed to be decided today, so that's another thing that might come down momentarily, if it hasn't already.

Benjamin Wittes: So, barring a Second Circuit intervention to remove the case, I assume we have an emergency appeal to the Supreme Court, which is what this whole thing's about, right?

Roger Parloff: Well, that depends on whether any of this is appealable and I guess it also, I mean obviously the Supreme Court can do what it likes.

Benjamin Wittes: As it has shown.

Roger Parloff: Yeah.

Benjamin Wittes: Okay, so, so-

Roger Parloff: But even if it entertains the appeal, it's not clear that Merchan wouldn't still, I mean, I guess you would have to stay the state proceeding, which is a big deal, you know, it's a big no-no in federalist principles for a federal court to stop a state criminal proceeding. So, it's a big deal.

Benjamin Wittes: So is your theory here that this is a spaghetti at the wall situation? You asked Merchan to put off his, put off sentencing and you ask Hellerstein and the federal hierarchy to remove again. You just kind of throw spaghetti, all the spaghetti at the wall that you can manage and hope that something comes up to prevent the sentencing on the 18th, or is there a more targeted strategy here that you can detect?

Roger Parloff: I assume it's spaghetti at the wall, and I assume also that if he does deny it, rule and deny the immunity motion, denied by saying that he won't either send it back for a new trial or dismiss, they could also try a state court emergency proceeding in Article 78 to the appellate division, then go from there to, so there's a lot of stages. It's a little like, you know, a death penalty litigation or at least the way death penalty litigation used to be. You file a large habeas and you can't read it in time to rule before the time of execution so you delay time of the execution. That sort of, it doesn't work anymore 'cause people just, a lot of judges-

Benjamin Wittes: Somebody has to care. So all right. So, that brings us to assuming that this that the federal courts treat this with all the deference that they normally treat a late stage habeas in the context of a federal, of a death penalty case, which is to say it doesn't go anywhere. That leaves this all in the hands of Justice Merchan, who is supposed to rule, as you say, maybe by today, about whether to put off the sentencing. And then is supposed to rule on the 16th, if memory serves, on the immunity question and only if the government, only if both of those go the same way will he then proceed to sentencing on the 18^th. Is that correct?

Roger Parloff: That's right.

Benjamin Wittes: And we've had no indication from him about how he's feeling about either of those issues?

Roger Parloff: He hasn't shared that with me.

Benjamin Wittes: Okay let us talk about the CREW amicus brief in the 11th Circuit. We're gonna go all the way back down to Florida here. Anna, I don't know if you've followed this at all, but chime in if you have. What has been going on in the 11th Circuit where the estimable Judge Aileen Cannon’s order dismissing the Mar-a-Lago case is currently under appeal.

Anna Bower: Well, I should mention first, while we were on the subject of today's hearing in D.C., Judge Cannon got a few mentions during this hearing today. Roger mentioned one of them when John Lauro told Judge Chutkan that a very respected judge in South Florida has issued an opinion dismissing the charges against Trump there on the Appointments Clause issue and Judge Chutkan in part of her response said something to the effect of, frankly, I don't find the judge's opinion in Florida very persuasive. But yes, so Ben, the 11th Circuit appeal is ongoing. Of course, often in, in, especially in Trump cases there are non-parties known as amicus or friend of the court briefs who intervene and, and you know, offer up their own opinion on the legal issues. This particular brief, which I'm going to hand it off to Roger to discuss more in depth argues that the case, if it is remanded back to the trial court, should be reassigned to another judge other than Judge Cannon.

Roger Parloff: Yeah, and if nothing else, this is very cathartic to read. I don't know if it'll do the trick. It has a lot, you know, it remains a long shot, but it's a well written brief and it's quite interesting. I did a thread on it, a pretty detailed thread on Twitter. You could look, but it is by, it is on behalf of CREW, the Citizens for Responsibility and Ethics in Washington, and also retired federal Judge Nancy Gertner, the ethics expert, Stephen Gillers, and the judicial ethics expert, James Sample. And it's, I think it's very shrewd in that, for instance, it doesn't mention who appointed her, you know, because that's a legal nonstarter and everyone knows who appointed her. You don't really need to do that. It also, for the most part, does not go after her saying, you know, she she's in the tank for Trump. It goes about it in a respectful way and says, you know, we know from her ruling in the, in 2022 when she granted the special master, she talked about the terrible stigma and reputational harm that a criminal investigation would do to a president, the affront to his dignity. And so, it takes the tact that for the most part she can't seem to shake these firmly held convictions that are distorting her thinking.

On the other time, on the other hand, there are points later in the thing where it, it says quote she has repeatedly appeared to cross the line from mere legal error to active judicial intervention and advocacy on behalf of the former president. It focuses in, in two ways on trios of events, you know, three, like three strikes. It doesn't use that term, but that's obviously sort of the message. This would be, if it's a reversal, would be her third reversal in three years. The, the first two involved that special master decision, that shocking special master decision in 2022, when she, right after the Mar a Lago search, when she blocked prosecutors from examining the fruits of a, you know, search that had been approved by a magistrate.

So, and then the other, there's also a trio of things other than, it does not really, it does not take on the issue of the merits of the appointment issue but it says that there were these three un, unbelievable things she did. One was appointing the special master in 2022. One was that unbelievable jury instruction flap that we talked about sometime back where she ordered the special master to draw up these weird jury instructions, one of which would have basically instructed the jury to quit. It was this theory that under the Presidential Records Act, if he walked out of the White House with classified documents, there was an unreviewable assumption that he was declaring those personal and that they became his, and of course he wanted, the special counsel wanted to take that immediately to the 11th Circuit. And she sort of fudged and said, no, no, I haven't made up my mind yet. I'm not this isn't a ruling. You can't, you can't appeal me. And I think the third was just general, the slow walking of the case. And they also specifically linked that to, sort of refreshingly, because no one else will say this, that the slow walking of the case is linked to the fact that if Trump wins, everyone expects that he will get rid of these cases through abuse of presidential power. And that, that's why people do not want to slow walk the case.  

So, anyway, it's well done. I think it still suffers from the fundamental problem that this particular appeal, suffers from the challenge that this particular appeal was sort of invited by a Supreme Court justice. And, and also that she, you know, it's, it's not a crazy document. It, given the assignment, she carries it off as well as, you know, somebody could. I think, you know, I think it fails, but it's, it's not, I think it's not as preposterous as the special master ruling. And plus imagine what happens if they do issue in order reassigning, I mean, say reverse, reassign, and then Trump seeks review in the Supreme Court, and they grant. What’s the status of the reassignment? So, but anyway, it's a good read. I recommend it. I think it's, I'm glad somebody put this on the table.

Benjamin Wittes: All right. We are going to go to audience questions.

Anna Bower: Can I just really quickly clarify the discussion about discovery? There is a line in the actual order that mentions that the discovery does relate to, or at least, yes, all mandatory evidentiary disclosures, including those mandated by Brady, et cetera, et cetera. So it seems like they are talking about the discussion around the mandatory evidentiary obligations that Lauro brought up today and that Thomas Windom said we've turned over everything. We don't have anything else to turn over. So I just, to clarify that because it was a question earlier in the discussion and we weren't sure because we didn't have the benefit of reading that particular line in the order.

Benjamin Wittes: All right. We are going to go to audience questions. First question from Ron: I have been wanting to ask this for a long time, so please forgive the dated nature of the inquiry. It seems that the former president has lost a lawsuit in Great Britain and refuses to pay. How should we refer to the former president, fugitive, wanted by the law, outlaw, absconder?

So I am unfamiliar with this situation, but as a general matter, somebody who loses a lawsuit and refuses to pay subject to a court order, I would not refer to that person as a fugitive. A fugitive implies that they're wanted as opposed to have an order for judgment. You might, colloquially, you might say a deadbeat is the, at least in the context of a paternity situation. But the other thing you can sometimes say is you know, these are enforceable by contempt, but I'm unaware of the specific situation and that might affect the appropriate terminology.

Julia asks: Slightly off topic question, which doesn't separate it, by the way, from the previous question. Trump's recent comments about it being totally okay to interfere in an election have me wondering, does this increase his legal jeopardy in any way? Is it an admission of guilt?

So this is a very common problem with Trump, which is that he frequently says things that would appear to dig the hole deeper. They are not admissions that he, in this case, it's not an admission that he did anything. It would merely be an admission that if he had, it would be fine. It's a little bit like O.J. writing a book called “If I Did It.” But look, I think the answer is, and I've said this with a lot of these things, in the event that he were convicted and that somebody were sentencing him, these are the kind of things you bring to the attention of the judge as an aggravating factor that maybe shows that he's completely unrepentant, but it's not a, it's not evidence in and of itself. Do you guys agree with that?

Roger Parloff: Well, I don't want to sound judicious and fair minded, but when I hear that, what he said, and maybe he has reinforced it subsequently, but, you know, as somebody that tries to speak extemporaneously, you know, in public myself, he could have meant: I had every right to do what I did, not that I had every right to interfere with an election. I mean, that's within, I could imagine myself misspeaking in that sort of way. So, there's that as well. I don't-

Anna Bower: Yes. So I was saying that I, I think that, you know, if it was an example of Trump misspeaking, and perhaps this is just being overly charitable to Donald Trump. But if it was that, Roger, it is consistent with what his legal teams have said in various cases that, you know, there are thing arguments that they've made, like the Take Care Clause that he was authorized as president to you know, speak with state officials about what's going on with the election, the arguments they were making at the Supreme Court about, as president, him speaking on matters of, you know, public interest regarding the election, that kind of thing. And so it could be that that's kind of what he was trying to get at.

Benjamin Wittes: All right. John Hawkinson, the floor is yours.

John Hawkinson: Thanks, Ben. And let me know if you want me to give a little more context on this. So regarding-

Benjamin Wittes: Actually, please do for audience members who are unaware of the situation.

John Hawkinson: Okay. So regarding Mark Meadows, who's being prosecuted in Arizona, he missed the deadline to file for removal, which is 30 days after arraignment. And the question is kind of why? So some background is that George Terwilliger, his longtime attorney at McGuireWoods, left McGuireWoods in December, and he's continuing to represent Meadows in Arizona but McGuireWoods is not. They have not withdrawn from the other litigation that they represent Meadows in like Georgia or the Supreme Court or the appellate court. I'm not sure if they're in the Supreme Court. Meadows is also represented in Arizona by some local counsel, a ten-attorney firm, and they missed their deadline to file for removal. So part of their argument when they did file is that there is good cause for filing late and it seems to just be, at least according to the Arizona state response, kind of an excuse. They said they emailed the prosecutor and wanted to discuss things and hoped the prosecutor would withdraw, and that's why they didn't file within the 30 days. So my question is really, is this just because George Terwilliger screwed up because he's no longer at a big law firm and doesn't have all the resources, or is there more to it?

Benjamin Wittes: So I want to be very careful how, how I address this because you know, when a filing deadline is missed and this is actually, and missed filing deadlines, is an issue that I spent a huge amount of time working on in the context of Virginia criminal justice when I was an editorial writer at the Post. It's actually a very serious problem and a lot of people lose their rights to appeal over it. And so I don't, you know, and sometimes the explanation for it is that a lawyer screwed up. And this is one thing that big firms tend to do very well. They have depth. And so they don't tend to, you know, miss deadlines the way people who don't have a lot of resources, a million associates who are, you know, holding the ship down in a lot of ways sometimes can. That said, I don't want to say that that's what happened here, because I don't know. And I think you've identified a plausible hypothesis. Another plausible hypothesis is that what Terwilliger is saying, which, is accurate, right. And although it is a little bit confusing to me why you wouldn't file the document in that case, just as a placeholder. So, look, I, the most I will say here is I think you've identified a plausible hypothesis for the explanation. It is consistent with things that big firms are, are very good at not making sure, at making sure don't happen, although they're not perfect at it either, honestly. And then but look, until you know specifically what happened here, you don't know, and it's worth, you know, not making it up with any confidence. Anna or Roger, do either of you have stuff to say on this or do you know something?

Roger Parloff: No, I don't want to touch it. I didn't know about this and Terwilliger has a great reputation and so I don't know what happened.

Anna Bower: I do not, I have no idea. I'm pretty baffled by it myself. So, and I, I assume that there will be a reply of some sort and so we will find out more then, but it's a good question. I've been wondering myself what happened there.

Benjamin Wittes: Yeah, I mean, Terwilliger, you know, for those of you who don't, he's a former Deputy Attorney General in the first Bush administration. He's a very serious guy and you know, this is not the kind of thing that I would have expected to happen and I will be interested to know what the explanation is. Mike McNeely, the floor is yours.

Mike McNeely: Yeah, and this is a question about Trump's overall strategy in the D.C. case. And my question is: why is it that, assuming the government won under Trump's scenario and won on the Pence issue, why, why would it be that it would have to be appealed separately from the other immunity issues to follow?

Benjamin Wittes: I'm going to defer to Roger on the substance of that, save to say that the government's position is that they shouldn't be severed and, you know, they're both just residual immunity questions and treat them together. Roger, what is the argument for treating them separately?

Roger Parloff: I think, you know, personally, I think it's a spurious argument. It's an attempt to slow down the process. But the stated argument is that this is a winner for sure. You know, SCOTUS, the Supreme Court was so clear that this is an official act. You'll never be able to overcome the very, very high hurdle that they set. And they did set a very, very high hurdle to overcome the presumption of immunity. That we can save ourselves months and months of spinning our wheels with all the other issues because this is all, this is the only one we need to do. And once we've disposed of it, the case falls apart and there's nothing left. So I guess that's the theory on which it would be efficient. And I guess they're confident that if it gets to the Supreme Court, they'll win there and the whole case disappears. I'm not quite clear if, if you could, in terms of putting all together all the facts, if you have a case without the Vice President part, without the Pence part but anyway, that's the theory.

Anna Bower: So can I just explain, I think that that, so that's the theory, but I, and maybe I'm misunderstanding Mike's question. But I think that maybe what he was asking is, why is it that there would have to be a separate appeal like kind of procedurally why is it that the two things would be separate? Why couldn't she rule and then proceed with things and then you know, go ahead and appeal all of it up together? The issue is that if they're in separate stages, let's say that she takes the Pence stuff first. As soon as she issues an opinion on that, it's appealable as a right, interlocutory. So it will go up to the appeals court and it's automatic stay. So that means that everything is going to have to pause. So, she wouldn't be able to go ahead and consider that next stage of looking at things other than Pence. And so what you would have then is a situation in which if she just deals with the Pence stuff first, you get a long interlocutory appeal before it comes back down and she can even go to that second stage of dealing, looking at all the other conduct. So that's why there would be two appeals, because-

Benjamin Wittes: Right, but I think, but I think the questioner was trying to get to what the merits argument for proceeding that way would be.

Anna Bower: Oh, I thought I understood it to be like, why would there be two? So maybe I just misunderstood the question, but in any case we've answered both versions of the question.

Benjamin Wittes: Yeah, I think the key point that Lauro would say if he were here is we're gonna win on this point. This point is, is really simple. And the Supreme Court has already showed its hand on it. And if we win on it, the rest of the case goes away. So let's do this first. It's nice and clean. And then we win and the case goes away. And so we don't have to litigate the rest. So it's more efficient to do it.

Anna Bower: Yeah, it's a judicial efficiency argument, but I mean, in the long run, if she's not going to agree with them, it's actually way less efficient to decide them separately.

Benjamin Wittes: As Roger said at the start, the argument has problems and the problems are, are really two-fold. One is if the Supreme Court had meant to say the Pence stuff gets thrown out, it had an opportunity to say that. It said that about the Justice Department stuff. It didn't say that about the Pence stuff, which suggests that that matter is at least a little bit more complicated than anybody, than Lauro is acknowledging. And by the way, again, no one will say this in court because you're not supposed to talk about the Supreme Court this way, but the Supreme Court is a they, not an it. And the relevant question is not whether the Supreme Court in all its glory would treat it this way, but whether John Roberts and Amy Coney Barrett would treat it this way. You're not allowed to talk about justices that way in court, but you are allowed to talk about them that way in the real world of which Trump Trials and Tribulations is one small part. All right, we've got thirteen more minutes. We've got several more questions. Let's get through them.

Roger Parloff: Incidentally, Chutkan said exactly what Ben said that the Supreme Court had it and they didn't rule. So it's not that simple.

Anna Bower: Yeah. And sorry, just one, one more thing on this too, is that Lauro tried to suggest that the Supreme Court specifically said that she should deal with the Pence stuff first by quoting a line in the opinion that says, we remand to the trial court to decide in the first instance whether, you know, the presumption of immunity can be overcome. Of course, what the Supreme Court was saying there is this trial court's going to get the first go at it and then it'll come back up to us and we'll decide. But Lauro tried to present that line as the Supreme Court saying, you have to deal with the Pence issue first before you deal with all this other stuff. So it was a quite inventive reading of, of that particular line in the Supreme Court's order.

Benjamin Wittes: All right, Michael asks: In the event that the 11th Circuit reverses Judge Cannon but does not remove her from the case, would it make sense for Jack Smith to file a motion seeking her recusal? One of you grab it.

Roger Parloff: You know, one problem is, if she denies it, I think in the 12th, I mean in the 11th Circuit, it's not an interlocutory appellate issue. You would still, you couldn't appeal it. You would have to wait till judgment is entered and you know. You could only appeal if there was a conviction. If there's an acquittal, there's nothing to appeal. So, I don't know how much it gets you. I guess you could try a mandamus, but I don't know. That's, that's where I am.

Benjamin Wittes: Yeah, I mean, I honestly don't think Judge Cannon is going to recuse herself without being forced, and so I don't think a motion to her to recuse herself is a useful exercise. Michael also asks: When the D.C. case goes back to the D.C. Circuit, does it go back to the Henderson-Pan-Childs panel or to a freshly drawn panel?

I believe, but I'm not sure it goes back to the same panel but somebody should check me on that. Do either of you know for sure?

Roger Parloff: I don't know.

Anna Bower: Wait, can you say that again?

Benjamin Wittes: When it goes back to the D.C. Circuit, does it go back to the same panel that heard the first immunity case?

Anna Bower: Good question. I don't know the D.C. Circuit's related cases rules.

Benjamin Wittes: I believe it does, is the answer, but we'll check and answer definitively next week. Jeff asks: Any idea what's in the classified discovery that Jack Smith filed under seal in the January 6th case?

Yes, I know exactly what's in there. Let me detail it for you. No, we don't know.

Finally, Andrew asks: Are there any more recent statements by Donald Trump likely to make their way into the D.C. case? For example, just within the last few days, he said he lost the 2020 election by a whisker, and also that he interfered with a presidential election, where you have every right to do it.

We've already talked about that one.

Query if these could be characterized as long post hoc admissions, but it seems like a stretch. So let me just say on the first one, I don't think it's a stretch at all. So, the first one, you know, one of the allegations in the indictment is that he lost and he knew he lost, and I think his statements now that he lost by a whisker are potentially admissions that he was aware that he lost, and remains aware that he lost. Now, would he have a possible explanation for those? Which is that, you know, he didn't mean it, what he meant was it was close and they stole it from me, and so officially he lost. Yeah, he could say that, but they, that's potential evidence of his state of mind, and I think that's, you know, this is why lawyers advise you when you're a defendant to, I think the technical term is shut the fuck up.

All right. We have one final pre submitted question from before which I want to get to. The immunity decision grants various immunities to the president. I, by the way, I don't know who this question is from, so I'm just reading it without a name. My question in two parts. One, can this immunity be waived? And two, is not the standing to waive the immunity granted to the Office of the President and not to the person who may have held that office, and if not, why not?

So it is not that the immunity, so, immunity has to be asserted. It has to be pled. You know if you're it's not that you can't be charged if you're immune. What the immunity means is that you are, you have a right not to face trial and therefore if charged you can plead the immunity, and a charge will be dismissed. Yes, you have to do that pleading. If you decline to plead immunity you could then face charges and you could waive that pleading. But it is not the, it is not the case that the ability to plead that resides in the current president. The immunity attaches to the person and for his official acts while president. So yes, you could waive that, but Donald Trump would have to waive it. And by the way, Donald Trump is not going to waive it. Does that, do either of you disagree with that as a characterization?

Roger Parloff: Yeah, that's what I think. And I think the questioner is thinking of executive privilege, which is different. That is, you know, well, it may be that the former president has some residual ability to try to invoke it, but mainly it's the current executive. But also in the civil context, you know, there's been a lot of litigation involving civil absolute immunity with presidents and because that has existed before, since in 1984. And so, like in the E. Jean Carroll case, about three years after the case was filed after the first case was filed, Trump tried to invoke presidential immunity and Judge Kaplan found that he had waived it and the Second Circuit affirmed.

Benjamin Wittes: Yeah almost anything can be waived. Almost, there are a very narrow set of exceptions to this, but almost all rights can, under certain circumstances, be waived. They do need to be asserted. On that important note, folks-

Roger Parloff: There's, there, I see one more question left in the-

Benjamin Wittes: Oh, did I miss one? Oh, I did! Another question by Michael. Let's deal with it: In U.S. v. Trump, Justice Roberts relied on separation of powers as a basis for his opinion, but might separation of powers cut the other way regarding the communications with Pence? Wouldn't it violate the separation of powers for a president to threaten or pressure the Vice President in his role as President of the Senate in order to get something from Congress? Roger, what do you think about that?

Roger Parloff: I think that's a neat question. The problem, I think it's a good question, but I can't, thinking on, on the fly. One problem is that pressuring somebody gets into motive. And the Supreme Court tries to block us from ever looking behind the motive in making these decisions, which is, in a criminal case, crazy. But, you know, that seems to be the law at the moment. So, in fact, there's a funny line in the superseding indictment, it occurs twice. And it sounds to me like, I don't have it in front of me, but where it sounds to me like the government is trying to describe lying without being judgmental. And it talks about, you know, without getting into motive. And saying, he repeats false things that are objectively unreasonable after having heard, you know, that, after having it been refuted. I wonder if, and it was inserted in the superseder twice. So, I don't know, there's this weird obstacle to overcome, but it's a, I think it's a good, you know, it's a great question.

Anna Bower: Oh yeah, because I think they used to say knowingly false, and then they changed it in some places to objectively unreasonable, because that is something that doesn't, you know, knowingly goes to looking at what's in the mind of the president, whereas objectively unreasonable, you know, you don't have to go there because it's objectively unreasonable.

Benjamin Wittes: I will just say that there's a second, there's another problem with the use of the separation of powers here, this argument, which is separation of powers is the basis for the immunity. It's the reason you have an immunity, right, to protect the presidency against encroachments by Congress or potentially the judiciary, I suppose. But here, the separation of powers that you're referring to, questioner, is within the context of the case itself. It's not a structural, you know, what Roberts is arguing is that the presidency needs the structural protection of immunity. It's not a creature of the allegations. It's a structural protection. So there's an apples and oranges quality to the point that you're making.

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We're gonna be back next week. There's gonna be stuff happening. We're gonna know something about what's going on in New York. We're gonna talk about it all. We're going to have all the footage of Nathan Wade's next escapade. And you know, the big question on everybody's mind, which room in her palatial mansion will Anna Bower be joining from. And please join us next week for the inaugural episode of our Lawfare Live series on the coming election. From the Mar-a-Lago bathroom, from the doctor's waiting room room in the palatial mansion, and from the sconce studio, we will see you next time.