The Lawfare Podcast, Trump’s Trials and Tribulations: A New Year's Update

[Introduction]

Anna Bower: So whenever the mandate issues, let's say that the appellate court affirms Judge Chutkan's order, which denied immunity and, and other constitutional grounds through that motion to dismiss, if they affirm, and the, the mandate doesn't issue until the usual, you know, month or so after the judgment then that can delay things even further. So the reason that Jack Smith is, you know asking for the mandate to issue is because it's the formal mechanism that kind of sends the case back to the trial court

Benjamin Wittes: I'm Benjamin Wittes and this is the Lawfare Podcast, January 6, 2024. That's January 6th. Did you hear that date? It's another episode of Trump's Trials and Tribulations. This one recorded on January 4th in front of a live audience on YouTube and Zoom. Joining me in the virtual jungle studio were Anna Bower and Roger Parloff of Lawfare. Anna from Georgia, Roger from France.

We discussed all of the Section 3 litigation happenings around the country, from Colorado to Maine. We talked about where the D.C. case stands, whether the January 6th trial will start on March 4th or whether we're in for more appellate litigation. We also took audience questions from our material supporters on Zoom. To be able to submit such questions to the panelists, you too, in the future, can do that, become a material supporter of Lawfare at lawfaremedia.org/support.

It's the Lawfare Podcast, January 6th, Trump Trials and Tribulations: A New Year's update.

[Main Podcast]

So, a couple of announcements up front. The first is something I'm very excited about. The day after tomorrow, on Saturday, we are launching season two of The Aftermath.

You might notice that Saturday is January 6th. It's a total coincidence that we're launching on the, the third anniversary of, of the January 6th uprising. We'll be talking a little bit more about what we're doing in season two of The Aftermath. There is no Lawfare product that involves more work by more different people than hhe Aftermath.

It is a sort of deep collaboration between Lawfare and Goat Rodeo and involves a whole lot of different people contributing in a lot of different ways. We tell great stories. And tell stories that people really don't know about the search for accountability after January 6th. That is January 6th, 2021.

All right, we're gonna get started. We got a bunch of things on the agenda today but we're gonna start with Section 3 of the 14th Amendment, because you know, we have a cert petition and those are always fun. So I'm actually for this portion of the show, going to turn the moderating duties over to the estimable Anna Bower because, you know, I actually spend a lot of time with Section 3, Roger spends a lot of time with Section 3, Anna's more a Fulton County person, so she's going to moderate so that, to give me a chance to be a little more of a participant, and then we will pass the moderating duties back and forth.

Anna, the floor is yours.

Anna Bower: Let's turn to one modes of potential accountability which is some of this Section 3 litigation that's been going on. And there's been a lot happening with it over the holiday. So, Roger, can you give us an update on what's been going on specifically in Maine and Colorado?

Roger Parloff: Yeah. So, we have the two disqualifications so far. Maine, the Secretary of State Shenna Bellow's issued a 34 page ruling on December 28th. Maine happens to have, this wasn't just a matter of somebody writing a letter to the Secretary of State and her deciding, yeah, I'll, I'll, I'll I'll disqualify him.

They happen to have a procedure in Maine that begins with the secretary of state. It's a formal procedure. And she took a lot of evidence. She held a hearing. Gerard Magliacca who you may have seen on one of these things previously, he testified he's a constitution, one of the leading constitutional law professors on the history of the 14th Amendment. So, and that will be proceeding. That has already been appealed. It goes, there's an appeal to the Superior Court which must rule by January 17th. And then it, further appeal goes to the Supreme Judicial Court of Maine. And there's, that they must rule within 14 days, so it's unrelated to when Trump appeals or whoever appeals. So that will be proceeding quickly.

Meanwhile, the Colorado case I think on the 27th of December, the Colorado State Republican Party petitioned for cert. That commenced that process and Trump just filed his petition, the third yesterday. And it's possible, it's possible that the Supreme Court could hear it, I mean, could decide the petition as early as tomorrow. There's a conference tomorrow. I think we have to see if CREW for the voters gets in its, its reply to the Trump petition, which just came in. And both the party, the Republican party, the state Republican party and the voters want a expedited procedure.

The party would like a resolution by March 5, which is Super Tuesday. The voter challengers want a resolution even earlier, by February 12. That's when, in state voters in Colorado get their prepared ballots. And so, they have asked the, the voter challengers have asked for argument on January 19th.

We'll have to see what happens. So that's the speed of it. Colorado, I'll just mention the, the party has asked, has presented, they want the court to hear three issues. Trump has asked the court to hear five issues, only one of which is the same as those first three. So it'll be interesting to see if the Supreme Court, if it does take the case, if it, if it tells us which issues it wants it wants argued.

Anna Bower: Thanks, Roger. And okay, so Ben, over to you. What ought the Supreme Court do in this case and versus what do you think it will end up doing and how quickly will it resolve the issue?

Benjamin Wittes: Look, if by what they ought to do, you mean what I think the right reading of Section 3 is historically and textually. I find it very hard to read Section 3 as saying other anything other than that Donald Trump is disqualified from future service of office of honor and trust anywhere in the United States, including the presidency.

I am aware that there are some substantial arguments particularly on the question of whether the provision is self-executing and whether the provision reference to the oath includes the presidential oath and more substantially, I think, whether the presidency is an office under the United States for purposes of the revision.

That said, I think is very hard for me to get around the fact that you know, all of that seems like a lot of intellectual beavering away to make the words that that amendment contains not mean what they say. And so if what you mean is, what is the right reading of the law? I, I think, you know, if I were a justice on the Colorado Supreme Court, I would have signed the majority opinion.

I think it's probably the, it's the best interpretation, in my opinion. And by the way, you know, that is you know, yes, that's the view of people like Gerard Magliocca, who as far as I know is not a conservative. It's also the views of people like Will Baude and Mike Paulson, David French in the more sort of popular legal vein, although David is an extremely serious lawyer, and Mike Luttig, right?

So this is not, you by no means have to be a, a kind of lefty living constitutionalist to believe this. In fact, it's a very textual analysis. So, now the question of what the Supreme Court should do legally and should do prudentially, there is a, you know, a lot of people perceive a gap between those two.

And one of them early on in the, in, in his coverage of this stuff was Roger. I, you know, who, you know, one of the reasons, as I recall, Roger, that you got interested in this subject was that you thought, gee, the legal argument for this is really good, and it might be a disaster if they actually followed it.

And so, like, I think that aspect of the should, the sort of legal realist who says, wait, do we really want the Supreme Court doing this? I, I, I don't know how to think about that question. You know, I'm enough of a legal formalist that I sort of make a point of not thinking about questions like that, but without delegitimizing them. They're, they're totally legitimate questions. I just don't know how to think about it.

What will the court do? I don't know. And I don't think the chances that it will read the Constitution at, take it at its word, are zero, like a lot of people seem to. I, I, I, if I were Neil Gorsuch or Amy Coney Barrett, who, you know, imagine themselves, and I think with some justice, to be, you know, committed principled textualists, this would be a very hard case for me.

It's, it's not an easy thing to be an original public meaning person and say, wow, you know, when the Constitution says, if you swore an oath to preserve and defend the constitution or support the constitution, and then you waged a insurrection, you don't get to serve again, that that means something other than that Donald Trump doesn't get to serve again.

So I, I don't really, I don't want to be cynical about the justices, except the ones who've given me very specific reason to be. And I think this is a hard set of, going to be a hard set of questions for them, particularly under the time pressure that they're going to have to deal with it. And I don't want to assume that I understand the inputs into the way they will think about it.

Anna Bower: Right. And, and one thing that I've recently found interesting is that, you know, people have heard a lot about some of the arguments that Trump has made about Section 3. For example, you know, that the, the presidency is not, the president is not an officer of the United States, that Section 3 is not self-executing, you know, that he, he didn't engage in insurrection and that January 6th didn't qualify as an insurrection, that kind of stuff.

But one of the more recent arguments that I've heard discussed more and more is, is an argument that I, I believe Trump raises it in, in his petition for cert, but then also in an amicus brief it comes up, it's this argument that's kind of, you know, there's a difference between running for office and actually holding office.

What do, Roger and Ben, do either of you have thoughts on that argument and, and what, what's your opinion on that?

Roger Parloff: Yeah, that, it's been an issue along the edges all along. Actually, one of, another friend of Lawfare, Derek Muller, has been raising this issue all along. You know, the, and it, and it rises in stronger and weaker fashion.

I was surprised that in Trump's cert petition, because it didn't play a big role in Colorado but his cert petition raises it really twice in different contexts. And one version of it is that, that Colorado because it's a disqualification from holding office, not for running for office, Colorado has added an eligibility requirement that doesn't exist for running for president. It's not a federal requirement for being president.

And at some point it becomes, in my mind, a silly argument, a sort of ostrich in the sand argument because the argument is, well, how do we know that Congress will not lift this disability from Trump between the time of the primary and the time that if he's elected president, he needs to enter office. You know, maybe two-thirds of each house will decide, oh, well, let's, let's lift the, the disability. And so, you can't, disqualify him now because he may eventually become eligible again. And, and, and of course what that's based on is there are cases where people tried to run for office different offices, say Senator of Colorado, and, and they weren't a resident of the state.

And, and this is the actual case might not be Colorado, but it was something like this, and of course the judge said, well, he can move into the state, before January 1, or whatever, so you, you need to put him on the ballot. This is not really the same thing, you know. I control where I, where I live. I can, you know, I can get up and move.

It's a bit of a hassle, but I can move. I can't dictate that two-thirds of each house of Congress will lift a disability from me. And I, I, so, you know, I'm not doing, I'm sure I'm not doing it justice, but I just think it, it, it's at some level, silly. But, that's, that's my reaction

Benjamin Wittes: Just to amplify that, I mean, first of all, as a general matter, it's not a matter of federal constitutional law, whether Colorado, you know, what Colorado's ballot access rules are. And so, you know, to say you must put me on the ballot, despite Colorado's adjudication of the matter, because Congress would by two thirds majority lift the disability, assuming that it exists.

I'm not sure why Colorado doesn't get it as much, Colorado's actual adjudication of actual facts that exist today get at least as much deference as Congress's hypothetical adjudication of a matter, you know, nine or ten months from now. The other thing that I would just say about, about this is I don't really understand, with members of Congress, there's this other way other than ballot access to effectuate the provision, which is that the Congress itself can refuse to seat somebody.

So, you participated in January 6^th, Congress thinks you're ineligible. It's just a vote not to seat you when you're elected. There's no analogous way for the president not to, you know, for the ineligibility to be adjudicated. It's not like, you know, Justice, Chief Justice Roberts won't swear him in because you know, cause of Section 3.

And by the way, if Chief Justice Roberts didn't, Justice Thomas would, right? So there's no rule that says the chief justice has to do it. So, like, one, one problem with this argument, which by the way seems to be like, particularly election law people seem to be into it. One problem with it is that it creates a constitutional provision that has no effect-, no mode of effectuation in the highest stakes case.

So, alright, Colorado can't keep you on the ballot because circumst- off the ballot because circumstances might change. So then, what is the mechanism by which, assuming this provision applies to you, who keeps you off, who, who prevents you from that service? Is it, is it a challenge to the counting of the electoral votes? That, you know, which I'm not sure that's a good one.

Roger Parloff: No, no. And in fact, even supposing this, and supposing that's what, we're talking about that January 6th, 2025, people start saying well, he's disqualified. I'm not going to count these votes. Assuming the new revision of the Electoral Count Act still permits that, you would still raise this argument if you believe it and say, well, there's two weeks left.

You know, two-thirds of Congress could still lift the, you know, it's crazy. And it's just a train wreck, it's just kicking a constitutional crisis a little further down the road.

Benjamin Wittes: I mean, I, I do think the, the basic answer has to be that the management of the state ballot is a matter of state law. The matter of eligibility for the presidency is a matter of federal constitutional law.

And so, I think the rules should be the Supreme Court decides what Section 3 of the 14th Amendment means. And then, assuming that it means Donald Trump is ineligible, or if it means that Donald Trump is ineligible, you know, different states are going to effectuate that in different ways. And Colorado can effectuate it by striking, not letting him be on the ballot.

You know, what Mississippi can effectuate it by letting him be on the ballot and letting people cast a protest vote for him and casting away it's, you know, wasting its electoral votes on somebody who's constitutionally ineligible to be president. But I don't think the argument that Colorado doesn't, doesn't have the sovereign right to implement federal law through its ballot process because circumstances might change. That makes no sense to me at all.

Roger Parloff: To be fair, there is another way that I think Trump will raise this argument, which is instead of, you know, obviously in, in the Supreme Court, you aren't supposed to just say the, the state court got state law wrong, but you can say the Elector Cause, Clause of the Constitution gives state legislatures the power to decide how state electors will be selected.

And the fed, and, and the Supreme Court can at least in certain, certain circumstances and did in, perhaps in, in Bush v. Gore can say the state misinterpreted how its state legislature wanted this decision to be made. And because it involves a presidential elector, we can make that decision.

And so they might be saying the Supreme Court of Colorado misinterpreted what this Colorado legislature thought about whether you could keep Trump off the ballot, a, you could keep somebody off the primary ballot at this stage, at this stage. So it, it, it would be, it's a convoluted argument. But it's, I think it's one of the arguments they're making.

Anna Bower: All right. Before I hand it off back to Ben, Roger, you have been tracking along with other Lawfare associate editors, including Hyemin Han, who's been kind of our Section 3 litigation tracker, a guru. You have been tracking cases not only in Colorado and Maine, but also across the country.

And while this is, pending before the Supreme Court, though some of those cases may advance further. So what kind of cases are you watching? Are there any other states that we should be taking a close look at in the coming weeks?

Roger Parloff: Yeah, I, the, when Trump filed his petition for cert he told us that it says that more than 60 lawsuits or administrative challenges have been filed to him. He has repeatedly declined to share with us his list. But, like you say, Hyemin Han and Caleb Benjamin also, have been trying to track this as best we can. We are aware, and I am aware through them, of at least 40 lawsuits that have been filed in at least 36 states. 14 of those have been withdrawn, voluntarily withdrawn.

A large number of those are not very strong. They are filed by non-lawyers. on behalf of themselves. 26 of these, at least 26, were filed by a guy named John Anthony Castro. He's also withdrawn 14. So, we tend to look at, there was a, we tend to look at ones that are filed by lawyers and especially groups of lawyers that have really looked into these issues and the primary ones are, are the Citizens, the CREW group, Citizens for Responsibility and Ethics in Washington. They're behind the Colorado case. And I'm not a, I'm not aware of a group like that in, involved in Maine, actually.

The other big group is Free Speech for People. And they filed important cases in Minnesota and Michigan. Those were dismissed, but they were dismissed only as to the primary because of the state law in in those states, which says basically, according to their courts that if, if a party wants to run an ineligible candidate, they can.

And so they both ruled that, they dismissed at the primary stage, but they have said, you know, this isn't ripe as to the general election stage, because we don't technically know who the Republican candidate is going to be yet. So, going down the, the, you know, if, if the, if the Supreme Court doesn't somehow send a big signal soon there will be very important cases again in Minnesota and, and in Michigan. Minnesota, in particular, because under their law, it begins right at their state Supreme Court level.

There was a new major administrative filing today by Free Speech for People in Illinois. That's a 78 page petition, but it's, it's administrative, so it won't immediately be on our disqualification tracker, which tracks litigation but that that will probably be important. And I think there might be another before the end of today will be, a new one will be filed.

There is one more in Oregon with also by Free Speech for People, I think filed in the Oregon Supreme Court. But I think the state secretary of state is taking issue with whether she disagrees about the state law in, in Oregon, so that may not be a, a very strong case for the challengers.

Anna Bower: Yeah, and I would add that I also got an email earlier today announcing that in Wisconsin, the Minocqua Brewing guy who had, had filed pro se before the elections commission, but then said that he had been working on getting a legal team on his Section 3 petition and that he'd be filing in Superior Court on Friday, I believe.

So, it'll be interesting to see if he did, if he will be filing pro se again, or if, if he you know, brought in a team to, to work on the petition. Okay. And I think that that wraps up our section three segment. So Ben, I'm going to hand it back to you.

Benjamin Wittes: All right. So let's talk about immunity and we're going to be relatively brief on D.C. Circuit immunity because just earlier today we recorded a Lawfare podcast about it that I think is going to run on Monday and is pretty deep dive on the subject in the run up to Tuesday's oral argument at the D.C. Circuit. So we're going to go a little light on that here to avoid duplication, but Anna, have fun with immunity. What, what, what, you know, can, can we shoot people on 5th Avenue now?

Anna Bower: I, I mean, I think that what I, have overwhelmingly had conversations with people about whether no matter kind of their range of their ideological or perspectives on how judges should judge.

It seems to be the bottom line is that people think that Trump will lose. It's just a question of how and, you know, again, I don't want to get too far into it because there are some questions about it in the q and a and then also we have a whole podcast on it. But there's a few ways that it could go, which is that the D.C. Circuit Court of Appeals recognizes presidential immunity in the context of criminal cases, as it applies to former presidents but then says it doesn't apply in in this case because Trump was not acting within the outer perimeter of his official duties. They could say that no, there is no presidential immunity in the context of criminal cases, full stop.

Or they could decide on this jurisdictional issue that's been raised by the American Oversight amicus brief. They argue that, you know, this kind of immunity argument is not subject to interlocutory appeal. And so the court should, you know, send the case back to the district court. And, and we go into, in the podcast, we talk about a lot of ways that that could either give the Supreme Court an out and kind of resolve the case in a very, in a quick way or it could draw things out more and, and really cause some substantial delays.

So I'm, I'm not sure how the, which of those tracks the D.C. Circuit will take. It's really kind of hard to say but I think that that's hopefully that summary, that very high level summary gives people a kind of a number of buckets in which they could expect a decision and, and what they can expect from the argument on Tuesday.

Benjamin Wittes: All right, so let's talk time frame. We have an argument on Tuesday. Seems like it's going to encompass three major issues, right? One is whether there is absolute presidential, absolute immunity from criminal process for matters within the Nixon v. Fitzgerald conception of the presidency.

The second is whether there's a double jeopardy problem with trying Donald Trump since he was tried once and acquitted in the context of the, the second impeachment for conduct that is substantially overlapping with the conduct here. That's, I think, a pretty frivolous question.

And then the third is whether the D.C. Circuit has jurisdiction to be hearing this question at all, these questions at all. What are, what are you looking for in terms of time from oral argument to disposition?

Anna Bower: I think that it's going to be really quick within a week, that the, and, and I would also note as well that I know there's a question in the q and a about this, but Jack Smith additionally requested that from the time that the court issues its decision to the issuance of the mandate, they would like the mandate to be issued within five days of judgment.

That's important because they're, the mandate, not the opinion, is what actually sends jurisdiction, you know, to, to the next court. So whenever the mandate issues, let's say that the appellate court affirms Judge Chutkan's order, which denied immunity and, and other constitutional grounds through that motion to dismiss. If they affirm and the, the mandate doesn't issue until the usual, you know, month or so after the judgment, then that can delay things even further.

So the reason that Jack Smith is, you know, asking for the mandate to issue is because it's the formal mechanism that kind of sends the case back to the trial court.

Benjamin Wittes: And thus starts the trial clock ticking again, which has been on hold.

Anna Bower: Right. And so not only does it allow proceedings to recommence in the trial court, but it also puts a lot of pressure on Trump to go ahead and try to, if so, I mean, again, I'm speaking as though I, I already know that the appeal is going to be affirmed.

But assuming that that is the case. It puts pressure on Trump to go ahead and try to appeal to the Supreme Court if he has an adverse decision because he doesn't want proceedings to recommence in the trial court. So, you know, there's just kind of a lot that's going on there strategically as to why Jack Smith asked for that mandate to issue.

But, I, I mean, I think that the D.C. Circuit could just act within a week and then almost, you know, it's within the court's discretion to issue the mandate even earlier than five days. I, I don't know that they would do that. But it, it is certainly possible, but I'm curious Roger what your thoughts are, and, and Ben.

Roger Parloff: I agree with you. I'm, I'm expecting a pretty quick decision. You know, they, they recently issued their ruling in Blassingame and actually in a related case as well.

Benjamin Wittes: Took a year though to issue that one.

Roger Parloff: Yes, but by then they had thought about these things for a while and that was a civil immunity question and I, I just think this is just from every, everything we see except the Trump brief, the, the criminal, the idea of criminal immunity has always been considered a much more far out idea and a much more dangerous idea and I, I, I think they'll move quickly.

Benjamin Wittes: And, what do you both think is the likelihood of, like, it's a whole different ballgame if the Supreme Court gets involved at this stage, assuming that we're looking at two possibilities from the D.C. Circuit. One is, we don't have jurisdiction over this. And the other is Trump loses on the merits. What do you think the likelihood of the Supreme Court taking either of those questions up pre trial?

Roger Parloff: Yeah, I, I also don't think they're going to do that. I'm, I'm optimistic that when they refuse review the first time, they're prepared to leave this to the D.C. Circuit.

Benjamin Wittes: What do you think, Anna?

Anna Bower: I'm also optimistic, a little bit less optimistic if the D.C. Circuit opinion, D.C. Circuit's opinion is grounded in the jurisdictional question because that's a question that affects a much wider variety of, of criminal defendants because it goes to not just presidential immunity, but other types of immunity.

And so I do worry that if the court decides on this jurisdictional issue that's raised by American Oversight, then it causes delay in the sense that the Supreme Court might be more willing to take it up. And then that also raises questions about, you know, if the court decides the jurisdictional question goes up to the court who then sends it back down for a merits decision if they decide, you know, so it kind of could get into this back and forth and, and cause some, some serious delays.

But if that is not the basis for the court's decision, I, like Roger, am, am optimistic that the court will refuse review, especially in light of Judge Pryor's decision in the 11th Circuit. Again, you know, different facts because it's Mark Meadows and a different kind of, you know, test, but it does relate to some, some similar things.

And Judge Pryor is a proxy for some of the more conservative voices on the Supreme Court. And it might be a signal that, you know, the Supreme Court might just, you know, you know, refuse review because they agree on the merits that Trump's conduct is, you know, not within the scope of presidential immunity if there is such an immunity.

Benjamin Wittes: So, from both of you, the case is currently scheduled for trial March 4th. How long, if any, delay is, is that going to be? Are we going to see a March 4th trial? And if not, what's the date on which you would predict Judge Chutkan actually gets to seat a jury and, you know, gavel things to start?

Roger Parloff: I haven't sat down with my calculator and it, it, the, the gut feeling is that March 4th is going to be really, really hard to make right now.

And I'm also worried about the motion for rehearing en banc. I assume that they would not grant. a stay, and I, I assume the mandate would go back to Chutkan and, and nobody would stay permitting the case to go forward if, if that is being lit, litigated. You know, a rehearing en banc, then you wait for that to be, and then, and then the cert petition, all of that, you know, would be disastrous. But there's an outside shot of keeping that date. I just, my, the, the other nightmare scenario is that you miss that date and then the New York case begins on March 25th and then you know, when, when do you, when do you get your next opportunity?

It does not look like the Florida case is really going to go in May. I'm still hopeful perhaps April or May is, is, is what we're looking at.

Benjamin Wittes: Do you have a prediction, Anna?

Anna Bower: I am not optimistic about a March trial at all. I think there's no way that it happens. I would say May or June.

Benjamin Wittes: I'm going to say March.

Roger Parloff: Give us the correct answer.

Benjamin Wittes: March 4th is going to happen and here's why.

Because the D.C. Circuit's going to rule in a week, like Anna says, and the Supreme Court's not going to hear it, like Roger says. And, by the way the government has been keeping up with its discovery obligations much to the chagrin of Trump's lawyers. And so, they're not really losing a lot of time with this delay.

And Judge Chutkan's going to want to say a very gentle, you know, fuck you, you can't push me around that easily to the defense. And so I, I think we're going to see, if Anna is right and Roger is right, then March 4th is going to happen. That's my prediction. All right. That brings me to the fact that Trump's lawyers have moved, and I have not read this brief, so if I get the details of this wrong. But as I understand it, they have moved Chutkan, to hold the prosecutors in contempt. for continuing to produce discovery while Judge Chutkan does not have jurisdiction over this case. So my first question, Roger, is, is, am I summarizing that accurately?

Roger Parloff: There's a little bit more, I mean, it's, yes, discovery several thousand pages exhibit lists, and I guess just recently a motion, motion for in limine, a motion in limine, a pretrial motion to, here are the things we want you to exclude. So far as I know there's nothing Trump has to do.

Benjamin Wittes: Yeah. So let me, let me just ask you a series of yes or no questions here. Does the deprivation of jurisdiction of Judge Chutkan involve an injunction against the government for, to, against giving information to the defense?

Roger Parloff: No, the the best you could do is you could say she said, it's, it's, more the way she phrased it. It was more than a mere stay of deadlines, it was, or other things that move the case forward, there was language to that effect. And, and so they're latching onto that.

Benjamin Wittes: Yeah, but if the government wanted to give a whole lot of this information, say, to Anna Bower, there's, the government's allowed to give information to whoever it wants to, right? It's not, and it's filing motions. I, I read the footnote in that motion in limine, it's footnote one on page one, and it says, look, the case isn't moving forward, but we are meeting our own dead-

We are meeting the deadlines. You don't have to rule on anything, but we're, we're meeting our own deadlines to try to keep this thing moving. And so that when the mandate gets returned to you, you can pick things up. There's no injunction against the government filing stuff. Well, what am I missing?

Roger Parloff: No, it's a weird one. And they call it in absentia proceedings. And I think what really drives Trump crazy is that, you know, these proceedings will be picked up and there will be news about him. And like this latest one, you know, he, it was the motion in limine. He doesn't want, you know, they don't want the jury exposed to Trump's disinformation.

They don't want partisan political attacks. They don't, you know, and so this is reported and then, he, he feels like, this is harmful to his campaign and he wants to use the, the stay order as almost as a gag order in effect. As a gag order on, on the special counsel's office, that it can no longer discuss the case.

Anna Bower: But the thing is, there are ways that you can make the argument that, look, this you know, unfairly, like, makes the criminal defendant who doesn't have the burdens of litigation because of the stay to feel the need to respond. Like, you can make a kind of more reasonable argument by through, for example, you could do like a motion to strike, right?

And then, and then, you know, in that way kind of express, you know, that this isn't appropriate and see what the court does. But a motion to hold prosecutors in contempt when I don't even think that this is any is, is in any way in violation of the stay order. I, I, but maybe that's just me, but-

Benjamin Wittes: I, I also just wanna say, a deprivation of jurisdiction is a deprivation of her jurisdiction. It's not a bind, it doesn't bind the Justice Department. It prevents her from ruling on anything. And so she issues a stay. The stay says, I'm not proceeding with this, with this matter. It doesn't say you can't give, you can't file anything. It doesn't, it's a very silly thing. I'm sure it'll play well on Fox News, but all right, but we're going to leave it there on, on that because we've already given it too much air time.

All right, we have two more matters to cover and then we have 15 questions in the queue. So, so let's, let's deal quickly with Fulton County and bring us up to speed. Mark Meadows has added my old friend Paul Clement to his legal team. I just want to say a word. Paul Clement is one of the very, very finest appellate lawyers around. He was solicitor general in the Bush administration. He is a gentleman, a scholar, and a very serious lawyer. What is he doing slumming with Mark Meadows?

Anna Bower: Yeah, I think that, I think it was Kyle Cheney who described it as Meadows bringing in the big guns, and the reason that he says that is because within the, you know, relatively small world of Supreme Court advocacy, I mean, you, you really can't find someone with more, or it's hard to find someone with more experience before that court, then, then Paul Clement. He is, you know, probably the most famous Supreme Court advocate in the country.

Benjamin Wittes: One of them anyway.

Anna Bower: Yeah, one of, one of them.  

Benjamin Wittes: Currently, he's the most, he's the, the finest and most famous Supreme Court advocate of his generation.

I mean, there's the, what were the, the Ted Olsons from the previous generation, right? And there were the, Paul is a very unusual figure. And to bring him in on a removal matter that you've just gotten your ass handed to you by Judge Pryor. I mean, look, Meadows has been extremely well represented. He's, he's represented by the McGuire Woods people. They're, they're, you know, George Terwilliger and Bittman and company. They're, that's a serious group of people. So it's not surprising that if they're going to the Supreme Court on the removal matter, they're going to bring in one of the heaviest hitters there is, but still it's, it makes a statement.

Anna Bower: Yeah, it makes a statement and, you know, it, it also kind of suggests that whatever happens with the rehearing en banc, if the court does not decide to rehear it, then they're going, they are going to petition for review from the Supreme Court. I don't really understand the request for the petition for rehearing unless it's a delay tactic.

I don't know. I wonder what the two of you think about that. I, I, I am just not particularly convinced that even if the court did rehear it you know, it seems to me that the three judge panel that decided it, you know, it, the ideological spectrum there, it ran from the chief judge who, again, is a very, very well respected conservative jurist amongst, you know, conservative jurists and, and particularly amongst people who sit on the 11th Circuit and then, you know, you have two other judges who have, have a different kind of ideological persuasion in terms of their judicial opinions.

And then you also have an en banc decision in the Pate case that came to a very similar conclusion as what the court found in the Meadows case. So I'm just not entirely sure what the strategy is behind requesting a rehearing en banc because, so if anyone has thoughts on that, please do chime in. But it is just significant because all of this suggests that, you know, Meadows is going to continue to try to appeal this and he is going all the way to or intends to go all the way to the Supreme Court if needed.

Benjamin Wittes: All right, so, all pretrial motions, other than motions in limine, are due before Judge McAfee for Fulton County defendants on January 8th. He continues to move this case along. What do we make of it?

Anna Bower: Well, I should say that it's that deadline applies to the, I believe it's to all of the non-removal defendants. I can't remember if there's some different, differentiation there between the removal defendants, but regardless. There is this upcoming deadline, possible that it could be moved.

But other than that, you know, there's not a whole lot right now that's going on in the Fulton County case that is, is publicly available. But I, I would assume that as we get closer to January 8th, we'll probably see you know, a flurry of activity on the docket.

Benjamin Wittes: January 8th is, you know, four days.

Anna Bower: Yeah. So we'll see what happens. Stay tuned.

Benjamin Wittes: Any, any news of any more pleas coming?

Anna Bower: Not that I'm aware of. Again, I think that there is still a bit of a holding pattern in terms of pleas and, and people seeing how various things shake out.

Benjamin Wittes: All right. Final question for Roger. It's been awfully quiet down in Fort Pierce, Florida. Has anything been happening or has, like time just ground to a halt?

Roger Parloff: Well, the briefing has been completed on the CIPA Section 4, the, not on the CIPA Section 4 litigation itself, but on the question of whether the defendants will be given an adversarial role in that. Usually, CIPA Section 4 is ex parte. It's usually just the government presents something to the court in, in enormous secrecy because what they're doing is they are saying there's certain information that’s highly, highly classified where we do have to, we think we do have a discovery obligation to share some of it, but not all of it.

And so we want to cut this, and we want to, we want to redact that, we want to summarize to keep the ultra secret information, and the Trump and, and even the, his codefendants want an adversarial proceeding instead. And a lot of CIPA experts have said that if Judge Cannon gives the defense what they're seeking, this will force an interlocutory appeal.

I've begun to sort of doubt that. I don't know if it's as crucial as made out and if they're asking for things that are quite as unreasonable as it sounds, but it's, it's, it gets pretty far into the weeds. The, the other thing that's happening is that the government is asking for, just as it did in the Washington case, it's asking for notice of whether Trump is going to present an advice of counsel defense.

And the, and Trump recently filed his objection to that. The problem there is that Judge Cannon has elsewhere in other case, in another case, did grant a motion for such a notice, gave five weeks notice prior to trial the defendant had to reveal that. The government here is asking 60 days, so a longer period.

So it's going to be hard for her to completely deny that motion, I think. The, the, the, I guess the main thing that's of interest maybe is that in responding to it, Trump really goes after, says, is promising to file a motion to, about prosecutorial abuse relating to the fact that the, that his lawyers Evan Corcoran and the the woman who's, Little

Anna Bower: Jennifer Little.

Roger Parloff: Jennifer Little, yeah. They had to testify before the grand jury and apparently he's planning a big attack on the special counsel for using the D.C. grand jury to pierce his attorney client privilege. And interestingly, he also quotes a, cites a Kyle Cheney article in Politico about, if you remember when that was going on, the D.C. Circuit did a really lightning appeal of one of those attorney client privilege rulings, which was in the grand, in the grand jury, you know, like overnight, briefing overnight. And it sounds like they're going to go after not just Special Counsel Jack Smith, but after the D.C. Circuit and after Beryl Howell, Judge Beryl Howell, the then Chief Judge so they might be going after the D.C. judges. So, it does sound like some wild stuff coming down the pike.

Benjamin Wittes: All right, in the octagon cage match between Judge Cannon and Judge Beryl Howell, I I would put my money on Judge Howell, actually. I, she is a veteran of congressional staff wars, and the federal judiciary ain't got nothing on that.

All right, we've got 15 questions. I'm gonna try to get through them all. So if you ask your question yourself, please keep it brief. I'm going to be brief and answers are going to be brief. Catherine asks, if not already discussed, can we have an update on the second Jean Carroll case? So that one is beyond our jurisdiction. The expected ruling from Judge Engoron, that one's kind of beyond our jurisdiction too, although we've touched it a little bit.

And this one's within our jurisdiction, the Alvin Bragg, Stormy Daniels case, and if Michael Cohen will survive credibility as a witness. So let me just say the, the Alvin Bragg case is moving along, you know, as Roger noted earlier, it is, seems to be a plausible candidate to go on March 25th if the March 4th trial deadline date in Washington slips.

So watch for that case to maybe be the sleeper of this winter. There has been very little public action in it, but it has not, but there is a trial date. And Roger and Anna, do either of you have updates on that case that are sort of public? I, I haven't seen much.

Roger Parloff: No, I, I, I haven't heard hide or hair of that case in a while.

Benjamin Wittes: Anna?

Anna Bower: I do not, but once again, I will, I will try to come next week with some updates on some of these cases. They've kind of slipped to the back burner because we've been keeping up with the other Trump cases, but now that it has been raised I, I will endeavor to come next week with some updates.

Benjamin Wittes: Josh writes, it is, is it unusual for this, that this D.C. Circuit panel requested the parties to be ready to respond to the points raised in the amicus briefs. What do people think of the jurisdiction issue? So we've already talked about the jurisdiction issue a little bit. I will say there is nothing unusual at all about a court noticing something in an amicus brief and sometimes requesting briefing on it from the parties or sometimes say, hey, we're interested in this in oral arguments.

This is one of the functions of an amicus briefs. I will say in this case, there's an additional reason why it's not unusual, which is that the, the parties, the, the amicus briefs claim is, that it's a jurist-, is that it's the, its point is jurisdictional for those of you who aren't fed courts people. A jurisdictional issue is always before a court, even if no party raised it.

So in this case, because it goes to the right of the court, the authority of the court, even to hear the case. And so in this case both parties have sort of stipulated to the courts having jurisdiction. And American Oversight comes in and says, no you don't, and they cite an apparently on point 9 to nothing Supreme Court decision by Justice Scalia, and which apparently has dozens of, of lower court implementations of it, including by one, by one of the judges who's sitting on this case.

And so I don't think it's surprising at all that the judges said, hey, you know, like you've come to argument being ready to talk about this. Do either of you disagree with that?

Roger Parloff: No, I, I was a little surprised that Jack Smith didn't even mention it, not even in a footnote, even though their brief was filed a few days after that amicus brief was filed. I don't understand that. I, I mean, these are much more skilled and credentialed people than me, but that doesn't sound, I don't get that.

Anna Bower: Well, Roger, you should listen to the podcast on Monday.

Benjamin Wittes: Yeah, we have a, we have a lengthy discussion of this subject. All right, Michael asks, it has been reported that Donald Trump plans to attend the D.C. Circuit oral argument on his immunity in person. Any thoughts, Anna Bower, about how that argument will go in light of Trump's presence and what effect it's going to have on the line? And will his counsel be more focused on answering the court's questions or performing for his orange client?

Anna Bower: Yeah, I mean, it's a good question. I, I think it could change some of the tone of the argument, but I, I mean, I don't know. I think that there's an extent to which his counsel have already been performing for their client, you know, even when he is not there because there's so much news reporting around what is said and what goes on.

So I'm not entirely sure if it's going to really change much but it will change a lot for me in terms of what time I have to actually show up there. So, I'm very much hoping that he does not come to the oral argument because it will make my life a lot worse in terms of the line situation and, and lack of sleep situation.

Benjamin Wittes: Well, the line situation is always good for Lawfare social media, so be sure to take pictures, selfies, and the like.

Roger Parloff: There is, there is one thing aside from his presence, physical presence and I've been wondering about how this will impact, especially the Supreme Court cases. Because he has some very good lawyers, very professional lawyers and in the Section 3 cases, his lawyers have been very good.

But his reply to the D.C. Circuit, I don't know if you read the, you know, there are pages in there where you know, he must have grabbed the, the word processor himself. And it is, it, it will be, you know, if the Supreme Court gets pages like that. It will shock them. You know, it is so offensive to have this.

It is so insulting to their intelligence to have these non-legal arguments, to have this crude campaign bluster and threats and, and, you know, there was a quotation to one of his tweets and, and a citation and the tweet itself referenced a published list of election lies. And, and it was not published. It was like a manuscript, unsigned manuscript of election lies. And what is it doing in the reply brief in front of the D.C.? This, if they do, if they try a stunt like that in the Supreme Court, it will shock all of those justices. And it's hard to tell how they'll react.

Benjamin Wittes: Good point. Richard Wattenbarger, the floor is yours.

Audience Member: Hello, Happy New Year. My question concerns the deterrent effect of any sort of sanctions that are available to judges in the various Trump trials in the event that he is held in, in, in contempt of court. So for example, what, what, what are the limits of the sanctions that are available? Can a judge, for example, fine Trump a large sum like you know, a million dollars? And are there realistically any deterrents available that would, that Trump would have difficulty turning to his disadvantage or, I mean, to his advantage, or is he in a position that he can behave badly and profit from it?

Benjamin Wittes: So we have been asked this question a lot over the months, and I will just very briefly list a number of the sanctions that are available to judges.

Number 1, there are fines. Number 2, there are escalating fines. Number 3, there are sanctions available in the form of, for example, when, when Rudy Giuliani didn't comply with a bunch of discovery orders, he defaulted the case, right? You can have internal penalties within the litigation. These can be very powerful, by the way.

Number 4, Judge Chutkan has floated the idea that she might accelerate the trial schedule. And number 5, ultimately you do have locking people up. Is, so these are some of the broad categories that are available. Whether they are capable of restraining Trump is really more a question of how aggressively a judge is willing to use them, I think.

Okay, fresh from his 435, I believe, sack of Rome, Alaric. And did I get the date right? The year right of the Alaric I sack of Rome?

Audience Member: The century, for sure.

Benjamin Wittes: I'm embarrassed if I got it wrong, but maybe 416. I'm not sure. Anyway, the floor is yours.

Audience Member: Thank you. And very quickly let me plug Lawfare Patreon status by thanking you for actually recording a mini pod to address a question I had a couple of months ago. It's just a great thing that I can be so ignorant and get questions answered by such experts. So let me just, you know-

Benjamin Wittes: Your check for the plug is in the mail,

Audience Member: Right? Right, exactly. No, my question kind of dovetails to the previous one and that is you know, is if there's a clear cut violation of the presidential oath, is that usable in any court proceeding context?

Does it have any legal teeth? I mean, it's an oath. We take an oath when we go, if we're in trial and we commit perjury if we violate it, but is there an analog to the presidential oath? Thank you very much.

Benjamin Wittes: Roger, you want to take that one?

Roger Parloff: Well, there certainly is in Section 3 of the 14th amendment.

If you violate your oath by committing insurrection, you can theoretically lose your job. And you're right to hold the job in the future. Of course, we'll see if that one has any teeth. Other than that, it's supposed to be impeachment. We've seen how far impeachment goes a couple times. So, Ben has written a lot about the oath and the importance of the presidential oath so, maybe I will defer.

Benjamin Wittes: Yeah, I mean, I would say, look, the oath is something that as a general matter lives in in one's heart. And the example that I always gave was, I, I disagreed with George W. Bush about a great number of things. I never distrusted his oath of office, right? That he meant, he meant to do the things he did in the service of preserving and protecting the constitution, right?

There's a difference between distrusting somebody and distrusting their oath or disagreeing with somebody or thinking somebody's a lousy politician or a lousy president or member of Congress and distrusting their oath. The oath itself is not an enforcement mechanism and has no enforcement mechanism other than people's contempt for you.

Various things about the oath do have enforcement mechanisms. Section 3 is a good example of that, a very specific one. The perjury statute is another one, you know, not just for politicians, by the way. And, but generally speaking, the oath is not an enforceable law. It's, it's part of, it's one of those provisions of the constitution that is not self-executing. You know, it requires, you know, implementing legislation of various sorts. Dana, the floor is yours.

Audience Member: I am just really struck by the idea that we're gonna have to figure out if people believe Trump was the, you know, a driver of the insurrection. I, I just still feel like this hasn't been decided. So I wanted your opinions on that, on that thinking.

Benjamin Wittes: So spell it out a little bit more for us. What do you mean it hasn't been decided?

Audience Member: Well, it hasn't. It's, I mean, don't we still wonder in, in, in courts and in cases if, if he's going to have to answer for his role. It, it just, I don't feel like we have litigated that and that the court, the Supreme Court could just say, we don't, we don't believe that this has been decided yet. And so we're going to let that go forward before we rule on whether he can stand in, in Colorado or in any of the other states.

Benjamin Wittes: So this is a very deep point, a couple things about it. The first is that Colorado actually did have a trial on this point. Now it was a civil trial over five days, not a fully developed, but there is a factual record here that's in, that is the factual record that underlies the finding.

Now I suppose the Supreme Court could take the position that, you know, a state court judge in a five day trial does not, cannot create a record that combined the entire country in terms of whether there was an insurrection that didn't happen in Colorado, right? So, I suppose, like, that's actually an interesting question. Who gets to decide the factual basis for a disqualification?

That said you know, it's not like there isn't a developed record on this subject. And one developed record, and it doesn't use the word insurrection, is the January 6th indictment, which alleges that the federal government can prove beyond a reasonable doubt that Donald Trump did a set of things that, you know, one interesting question is, do the set of things that have been alleged in federal criminal processes amount to insurrection?

I don't think we have quite figured out the methodology by which we decide who has engaged in insurrection for purposes of Section 3. And by the way, that’s because in, in, in 1867, it was not really a contested matter whether somebody served in, in the Confederate Army, right, or was an elected official of the Confederacy.

So I think there, there is actually a sticky point there about like, okay, like, to me, it is obvious that January 6 was an insurrection of some kind, but the obvious to Ben Wittes standard is not the standard that the court should use. So, what is the standard that the Court should use, and who is the fact finder that the Court, it's not gonna, the Supreme Court doesn't find facts itself?

Right? So should it, should some state court judge in Colorado be the one to find the facts? And if, by the way, that person finds the facts, why should that move anybody in Mississippi? Why should they be bound by that? So I think there's actually a pretty substantial set of issues there. And I have not actually seen a lot of good discussion of it, like, other than to float the question that I just floated, which a lot of people have done. I, I don't, I don't really know what the, I haven't seen good hypotheses as to the answer to it. Roger, do you have thoughts on that?

Roger Parloff: Yeah, I think it's, it's fairly easy to define what insurrection means. It is very hard to, to figure out who gets to decide it and, and where. And the problem with the, at the Supreme Court is that the only decisions that will end this issue, that will solve this issue, issue are the pro, are pro Trump decisions. If you say you know, if you say that Section 3 doesn't apply to presidents, okay, that ends all the litigation. If you say Section 3 isn't self executing, that ends everything. If you say, no, Section 3 does apply and it's, it's, it's self executing, then you affirm and, and Colorado is out.

And, but it doesn't really tell you what happens to the other states. And there is a, you know, doctrine called collateral estoppel, and some states can, you know, some plaintiffs will start trying to use that. But it's probably not mandatory.

Benjamin Wittes: It's also not obvious that collateral estoppel applies in one state based on facts found by a different state under different state law, right?

Roger Parloff: Well, it could be. There is different state law. And also there's the issue of, did he get a fair hearing in the other state?

Benjamin Wittes: Exactly.

Roger Parloff: And so there's a lot of variables. So no, it's much easier to wipe this out in a pro Trump way than to solve this. I don't see a way that the Supreme Court can say, yes, this was an insurrection, he committed it. He's disqualified.

Benjamin Wittes: The most they could say is that it was not unreasonable to determine that he did it. And if he did, and, and the facts reasonably found by the fact founder amount to disqualification on, as a matter of law.

Roger Parloff: Yeah. And I actually, I, there's somebody who has said this well on Twitter and I, I can't think of his name and I am not, I'm trying not to steal his ideas, but I, I can't think of his name. So, I will look him up eventually and I'll, I'll do penance for the, for, for a while.

Benjamin Wittes: All right. We are not going to get through everybody today because we are at time, but we are going to get through Antti Ruokonen and Tim Crittenden so Antti, because they're already on my talking queue. So, Antti the floor is yours.

Audience Member: Thanks, Ben. Do you think SCOTUS understands the importance of a unanimous ruling on the Section 3 issue, and would such a ruling even be possible from the current bench? Please do recklessly speculate, at will. Thank you.

Benjamin Wittes: So, I'm sure they do understand the importance of it, and I'm 100 percent certain that the chief very deeply understands the importance of it and whether they can get it is a completely different question.

I think, you know, they would all love to be unanimous on a matter like this, but it's not necessarily, if it's everybody's second priority, it won't happen.

Roger Parloff: I, I actually, you know, unless, unless it's an affirmance of what the Supreme Court of Colorado did, I don't know that I'm in favor of a 9-0 ruling. Because you know, if it's gonna, I've read, you know, editorials by Professor Sam Moyn and, and, and I guess Ruth Marcus maybe people that, that think, oh, we, we need to preserve democratic government and this is not the right way to, to, to get rid of Trump.

If, if you have a 9-0 ruling saying ruling for Trump, it is read by his people as, oh, yet another hoax, yet another reason for revenge. There was the Mueller hoax, there were the impeachment hoaxes, there's these criminal hoaxes, and now here it is, 9-0. It was all a hoax.

Benjamin Wittes: As one of the perpetrators of the Mueller hoax, the Russia collusion hoax, I stand behind it. We, we hoaxed them.

Roger Parloff: Yeah, so I, I think that would be a catastrophe. I think you need to have at least three stand up and say, no, you know, Section 3 exists, and he violated it, and, and, okay, you can, you can wriggle out of it. That's fine. I understand why you're doing it. And there's even statesmen like reasons to wriggle out of it, but you gotta be clear.

Benjamin Wittes: I completely agree with you about this. The question was about whether the justices understand the value of unanimity, not whether we agree with them. The justices always want to be unanimous when they can, but I completely agree with you, Roger.

The one thing I would say in the other direction is it would be great if the adjudication were not a 6-3 Republican appointee versus Democratic appointee thing. I would love to see, for example, Neil Gorsuch, who is a committed originalist, stand up for the originalism of Will Bode and Mike Paulson, right?

Like, you, you want to see complexity and apolitical judging or nonpolitical judging. I think that's much more important cross ideological mixes are more important than unanimity. Okay, Tim Crittenden, you get the last question today.

Audience Member: Hey, hurrah, thank you everybody. Yeah, so we've touched a little bit on Fort Pierce and Judge Cannon. My question was mainly around CIPA procedures and what are we to think about how Judge Cannon is handling things? Is it, with the, is she dragging her feet necessarily or playing favorites? Or is, as we've been educated by this crew, the CIPA process just so huge and encumbering and full of all sorts of hurdles that things really are moving at a reasonable pace as best as they can? Thank you.

Roger Parloff: I think there's no question she already has rendered one ruling on one of the easiest questions where nobody, nobody asked her to create a problem, and she created one. You know, she has said that, you know, the government had turned over 5,500 pages, all of the the, the 32 classified documents that are in the, that form the basis for the first 32 counts to the, to the, to the lawyers.

And she said no, you can't do that with, you, you need to have me review all of those under Section 4 procedures. We can't just, you can't just hand them over and then have a protective order placed on them. I need to, you need to go through, you know, and, and she created all of this work for herself.

And now we're, we're, we're at Section, we're doing the Section 4 process and she wants, she's, she's drawn it out. But I, I really think the, the, the hard part hasn't even arrived. The hard part is what do you do with the jury and the public courtroom? And there are procedures that have been developed in, in other circuits, primarily the Fourth Circuit, where most of this happens, to deal with that problem. And I, I, I just feel certain in my bones, she's going to reject all of those precedents and say you can't do it and that that will force an interlocutory appeal. I do think there's something unusual and she has a hard time ruling against the defendants on a lot of these issues.

Anna Bower: Speaking of Judge Cannon, I do have an answer to the person who asked the question about whether she could render a verdict notwithstanding judgment and in, and if she did and acquitted Trump, whether that would be appealable.

So if, if, if Trump's team moved before the verdict and she acquitted before a verdict from the jury, then that would not be appealable because of, you know, double jeopardy would be implicated. But if she reserved the decision or if they renewed the motion after the verdict from the jury, then that would be appealable. The reason being that you double jeopardy is not in play there because you don't have to have another trial if the decision is reversed. Does that make sense?

Benjamin Wittes: Right, you just have to defer to the jury's existing verdict.

Anna Bower: Right, exactly.

Benjamin Wittes: That's interesting. You're all great Americans. That's it for us this week. We will be back next week. And remember, Happy New Year. It's a marathon, not a sprint.

The Lawfare Podcast is produced in cooperation with the Brookings Institution, where I recorded not one, but two podcasts today before coming home to do Lawfare's Trump Trials and Tribulations. Hey folks, I'm serious. This is the year that you're going to want to be a material supporter of Lawfare because we've got all kinds of things going, so just do it, lawfaremedia.org/support.

Our audio engineer this episode is the intrepid Anna Hickey who just made it all happen. The Lawfare Podcast is edited by Jen Patja Howell. Our music is performed by the one, the only, the Istanbul based Sophia Yan, and as always, thanks for listening.