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The Lawfare Podcast, Trump's Trials and Tribulations: The 14th Amendment Goes to the Supreme Court

Benjamin Wittes, Anna Bower, Quinta Jurecic, Roger Parloff, Jen Patja
Saturday, January 13, 2024, 12:00 PM
Listen to this week's episode of Trump's Trials and Tribulations 

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It's another episode of “Trump's Trials and Tribulations,” recorded on January 11 in front of a live audience on YouTube and Zoom. Lawfare Editor-in-Chief Benjamin Wittes spoke with Lawfare Senior Editors Quinta Jurecic and Roger Parloff, and Lawfare Legal Fellow Anna Bower, about the closing arguments in the New York civil case, about the Supreme Court's decision to grant Trump's petition for it to review the Colorado Supreme Court's decision barring him from the ballot under the 14th Amendment, and about the flurry of motions filed in Fulton County by the January 8 deadline. They also checked in on the Southern District of Florida to see what was, or wasn't, going on, and took audience questions from Lawfare’s Material Supporters on Zoom.

To be able to submit questions to the panelists, become a Material Supporter at lawfaremedia.org/support.

Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.

 

Transcript

[Audio Excerpt]

Roger Parloff

Even saying it's not self-executing doesn't solve the problem in terms of what happens on January 6th, 2025. Because saying it's not self-executing eliminates all the litigation, but it doesn't solve the question, is he qualified? And so it's just a live, just a very live issue on January 6th and January 20th and thereafter.

[Main Podcast]

Benjamin Wittes

I'm Benjamin Wittes, and this is the Lawfare Podcast, January 13th, 2024. It's another episode of Trump's Trials and Tribulations. This one recorded on January 11th in front of a live audience on YouTube and Zoom. Joining me in the virtual jungle studio were Quinta Jurecic, Anna Bower, and Roger Parloff of Lawfare.

We discussed the closing arguments in the New York civil fraud case, the Supreme Court's decision to grant Trump's petition to review the Colorado Supreme Court's 14th Amendment Section 3 decision. We also talked about the flurry of motions filed in Fulton County by the January 8th deadline for pretrial motion, including that one that we explained why we weren't really ready to talk about yet.

And we checked in on other activity in the Southern District of Florida to see what was or wasn't going on. We, of course, took audience questions from our material supporters on Zoom, and you should become one of those material supporters to get your questions answered. Become a material supporter of Lawfare at lawfaremedia.org/support. It's the Lawfare Podcast, January 13th, Trump's Trials and Tribulations, the 14th amendment goes to the Supreme Court. So Quinta, get us started. What has been going on in New York City as the closing arguments take place in the Trump civil fraud case?

Quinta Jurecic

Yeah, so today is the final day of the trial of the Trump and the Trump Organization for fraud as you say in civil court in New York state court.

And I should say that because I am not in New York and there are not cameras or audio from the courtroom. I am relying here on the work of a great number of intrepid journalists who have been live tweeting. So, thank you to them all. Essentially what we heard today is pretty much more or less what we would have expected.

So the issue in question is whether or not the Trump Organization systematically misrepresented the value of its own assets to the tune of over $2 billion. Justice Engoron already granted summary judgment to the New York attorney general's office on this matter several months ago. And so the remainder of the trial has really been focused on other allegations outside this fraud claim, and then the question of how much the organization is going to need to pay up, and New York Attorney General Tish James has asked for a fine of a whopping $370 million, which is a big increase over what they had initially asked for, which I think was more on the ballpark of $200 million.

So Trump's counsel started off the day by essentially arguing a number of not particularly interesting legal issues having to do with whether the organization had the requisite intent to defraud. Of course, they argued that it didn't. And whether or not the financial misrepresentations were material.

So whether they actually had any effect on the willingness of lenders and insurers to provide the organization with money and insurance. And then things got a little spicy when Trump himself spoke up. So we, there had been some discussion about whether or not Trump personally would make comments during these closing arguments.

We had seen this floated in the press previously. It then seemed like he wouldn't due to what transpired over a very amusing email chain that you can find in the New York docket. Essentially Trump's counsel, Chris Kise requested in an email that was all in, in lower case, which is definitely one way to write to a judge who's going to be ruling on your case soon, saying, Mr. Trump will be speaking as well. And Engoron essentially said, yes, okay, that's fine, but you have to be strictly limited to the material that's already in the record. You can't make campaign statements. You can't, and I quote, comment on irrelevant matters, or impugn myself, my staff, plaintiff staff, or the New York state court system.

So, perhaps not surprisingly, after that, Trump, Trump's counsel failed to respond to Engoron's requests and Engoron then sends an email essentially saying, if you don't respond in the next seven minutes, I'm not going to let you talk. They did not respond in the next seven minutes, and we thought that was that.

Until at the end of arguments on, for Trump's side today they announced that he would like to speak after all. And before Justice Engoron could even weigh in Trump just started talking and away he went. I think he talked for about four or five minutes, calling the case a witch hunt, accusing New York Attorney General Tish James of election interference. Saying that Engoron had, and I quote, his own agenda. And that was pretty much that. Engoron just let him talk and then he shut up after a few minutes. So that was the big fireworks. Right now the New York Attorney General's office, they're still going through their closing argument.

So that's still happening as we're recording.

Benjamin Wittes

So, help me out with this Quinta. My recollection, and this would be in federal court, not in New York state court, but Roger, Anna, if either you guys know the law of contempt on this matter better than I do, feel free to jump in and correct me. It's been a long time since I've thought about this question, but normally when a contempt happened, it doesn't happen in the presence of a judge.

Right? It happens. The judge orders you no, talking about my staff and you issue a Truth Social post. This is the typical case, of course, with a normal person, the Truth Social post. But in this instance, the judge says you can speak as long as you don't do the following things, including impugning myself or my staff.

And then Trump stands up. and speaks and defies the condition in which he was supposed to have been allowed to speak.

Quinta Jurecic

I'm, I will say, I'm not sure it's quite, that's quite right, although I do agree that is generally a pretty accurate description because what happened was that Engoron set out those conditions in the email chain.

Trump's attorneys never consented to them. They just kept saying, oh we need more time to decide, and then not, didn't respond to his email.

Benjamin Wittes

But it doesn't, why does it matter if they consented?

Quinta Jurecic

Then Engoron said, you're, okay, you're not going to speak. And then in the in court, he ended up speaking anyway.

So I suppose you might be able to argue that those conditions, like, perhaps weren't operative.

Benjamin Wittes

But they weren't operative because he wasn't supposed to be speaking at all.

Quinta Jurecic

Right.

Benjamin Wittes

And then he jumped up and spoke. Seems to me either he's violating the terms in which he was allowed to speak, or he's speaking without having been disallowed to speak under the terms in which he wanted to speak.

Either way, it seems to me there's a, and this is a specialized form of contempt. It's a, I forget what it's called, but it's a contempt when you actually commit it in the courtroom, in the sight of the judge. And it doesn't require any real due process for the court to point at your ass and say, you're fucking in contempt.

And so my question is what did Engoron do? And what do we know about whether Trump's going to have a problem as a result of this?

Quinta Jurecic

Well, so, so right, so I, first I should say that, yes, my understanding is that in federal court that does exist as a kind of contempt. I don't know about the New York State court system, although generally, judges have pretty broad authority to issue contempt findings.

Justice Engoron didn't really do anything. He waited until Trump stopped talking, and then that was that. He's definitely been losing his patience, I guess I would say, with the Trump team, but hasn't been as aggressive as he might be in terms of slapping sanctions on them. I mean, I do think it is relevant as some have noted that this is a bench trial, so there's no jury.

So, he doesn't need to worry about Trump prejudicing the jury or anything like that which I do think matters. I've also seen some suggestions that under New York law, perhaps there might be some way in which allowing Trump to speak gets rid of a potential argument that he might raise on any appeal.

I'm not familiar enough with the relevant New York law to be able to evaluate that claim, but I could see that if you're Justice Engoron and you really want to have a ruling that is as ironclad as possible because you know that Trump is going to appeal this as far as it can possibly go, that there might be a reason to give him as much runway as you can and just prevent him from making arguments that he was unfairly treated.

Benjamin Wittes

All excellent tactical reasons, but I just want to put out there that I think Trump potentially exposed himself today to, to a contempt finding, accepting that the court might choose not to do it for reasons of positioning on appeal.

Normally you don't look a judge in the face and say you have your own agenda and expect to not be slapped with a contempt finding. Roger?

Roger Parloff

The email exchange I read, if I'm remembering quickly I thought Engoron went so far as to say, and if you violate these rules, I'll fine you $50,000. It would, it's like, and then he violated all of those rules.

So, but I agree with Quinta that, Engoron may be happy, it's over, it's like why Rule 11 doesn't get used much, why create another which is like abusive conduct of litigation conduct? It creates a side issue that can itself be litigated and appealed. Why not just go to the meat of the matter?

Let's get to the fine and finish this case.

Benjamin Wittes

Yeah, so I think that's very, that's probably what Judge Engoron is counseling himself through his anger to do, and because he has so much discretion to, in the resolution of the case on the magnitude of the fine and the disqualification and the, he has so many tools in his toolbox, he may just say, why increase this?

Why mess with a piddly $50,000 contempt fine? I can add a $50 million to the damages and be well within my discretion. And, you write a few lines into the opinion about, the remorseless conspiracy theorizing with which the defendant has engaged. All right, so Q, this case is now, by the time most people hear this, will have been submitted and we're just really waiting for him to write an opinion, right?

Quinta Jurecic

That's right. And I should say, I think it's also worth noting, so the big question is I think really the amount of money that the Trump Organization may need to pay up, but the real pain for the Trump Organization has, is already on the table, and that is a ruling that Justice Engoron issued along with that summary of judgment where he rescinded the organization's, I believe it's called a business certificate in New York which limits the organization and its subsidiary organization's ability to do business in the state of New York.

My understanding is that could be pretty harsh for Trump given the number of his real estate holdings that are in the city. So that ruling, it's currently stayed by an appeals court and I imagine that we're probably gonna see a fair amount of litigation over whether or not that moves forward.

So in some sense we're, that shoe has already dropped and we're only waiting for the other shoe to drop.

Benjamin Wittes

Yeah, and what do we know about, I gotta say, I know very little about either the, I think there's, the New York State system has a two-level appeals process. All courts in New York are misnamed, by the way, so if you hear a Supreme Court, that actually means a district court, and if you hear the phrase Court of Appeals, which sounds like a mid-level court that's actually a Supreme Court. It's a crazy system but what do we know about like how many levels of appeals this goes through and Like, how long does it take to appeal a New York state judgment?

Quinta Jurecic

I confess I don't know the answer to that question, in part because, as you say I object to the way that New York names its courts.

I think it's ridiculous and they need to change it. It's also, for example, as someone's noted in the chat Engoron is a justice because he is on the Supreme Court, i. e. the trial court because New York does everything backward.

Benjamin Wittes

Not the only, they're not the only state that does that.

Quinta Jurecic

I think Delaware also used to, but they changed it recently.

Benjamin Wittes

No, it's just designed to mess with reporters and to confuse the public. But in New York's defense on this, it's really old. And, old naming conventions are cool. That's why we love Admiralty Law, even though we don't really care about Admiralty Law the name, the nomenclature is really awesome.

Quinta Jurecic

So, so, Admiralty Law aside, I will say, I mean, look, this case has been in the running for a really long time. I think the investigation began in 2021 everyone in the courtroom, as far as I can tell from the reporting seems exhausted, not least of whom includes Justice Engoron so if this keeps going for even longer, I'm sure that everyone will be thrilled.

Roger Parloff

I was just going to say, I'm pretty sure the appeal goes to the Appellate Division First Department and that's incident, and those people are called Justices also because it's the Appellate Division of the Supreme Court, the lower court, and, and then it's appealed to the Court of Appeal, where appeals, where people are called judges.

But how long that will take, I have no idea.

Benjamin Wittes

And then, of course, you do have, theoretically, an appeal from the New York Court of Appeals to the Supreme Court of the United States. Normally, you would say there is no chance of a cert grant in a routine civil liability, business fraud case. On the other hand, it is a Trump case, so you're going to have at least two levels of appeal here, and theoretically you could have three.

Roger Parloff

Well, they would have to concoct a federal question. I suppose it would be due process or something like that.

Quinta Jurecic

Yeah, so Chris, I will say during closing arguments, Chris Kise, I don't have them right in front of me, but he did raise constitutional objections to the charges, which I imagine is setting that up.

I will say, if I were on the Supreme Court, I mean, they have the immunity , question that's heading to them. They already have the 14th amendment litigation. I certainly wouldn't want to handle another one of these cases. I can count maybe two justices who might vote to grant cert, but I don't know who the other two might be.

So I'm not sure how good Trump's odds are there.

Benjamin Wittes

Yeah. I mean, you would also presumably have to have some state court that had resolved some federal question differently than the New York Court of Appeals. It's a real long shot. I'm just trying to think about how long, assuming Judge Engoron rules, that, Trump has massive liability and the Trump Organization does as well, how long before you basically attach the assets or Trump has to liquidate major assets in New York, and the answer is probably a minimum of a couple years, I would think.

Anna Bower

Yeah, I reported a podcast that's coming out tomorrow with Tristan Snell, who is a former assistant attorney general in New York and we discussed this very question, so folks should listen to the podcast, but, the, his estimation was similar to yours, Ben, that very likely that it would take years through the the appellate courts.

And he also believed that probably the judgment would be stayed pending appeal. So, yeah, if people can give that podcast a listen when it comes out tomorrow.

Benjamin Wittes

All right. So here is something that is not going to take years. The Supreme Court's consideration of the meaning of Section 3 of the 14th Amendment between the last time we talked and this time, that is to say, last Thursday to now, the Supreme Court has granted cert in the Colorado case, which means we may not find out really quickly if Trump is going to be banned nationwide from the ballot, but we're certainly going to find out pretty quickly whether he is going to be required to be on the ballot in all 50 states. So Roger, what do we know about what the Supreme Court did and what does the briefing schedule look like?

Roger Parloff

Yeah, it granted cert, expedited schedule, not quite as expedited as the voter challengers would have liked, but pretty expedited. Trump's brief is due January 18th, so that's next Thursday.

Hopefully before our next Trials and Tribulations, but maybe that evening and then on January 31st, the voter challengers brief will come in and then there will be a reply and then the oral argument will be February 8th. So that's a pretty quick schedule. Trump had asked for a resolution by March 5th.

So they seem to be, and that March 5th is super Tuesday. So they seem to be trying to at least abide by his goal. Meanwhile, we will get, maybe, possibly another state final ruling in Maine, where Shenna Bellows, also the Secretary of State, determined after an administrative process and taking evidence and holding a hearing, also that Trump was disqualified, followed a lot of the reasoning of the Colorado court, the superior, you appeal that to the Superior Court there, and the Superior Court must rule by January 17th. So that's next Wednesday, this coming Wednesday. And then the Supreme Judicial Court has only two weeks after that to, to issue its ruling on appeal, assuming there's an appeal. So that would be January 31st. So we'll have a final ruling in Maine I think before the oral argument.

So that will heighten the stakes of the oral argument.

Benjamin Wittes

And just to be clear, The status of like normally and in a in a normal situation, you would stay the main proceedings given that you're about to get authoritative guidance from the Supreme Court. But in this case, you can't because Maine has its own statutory obligations to resolve these questions within a certain number of days, right?

Roger Parloff

Exactly, yeah. And a number of states for voter challenges, because time is of the essence, have these very expedited procedures with mandatory rules.

Benjamin Wittes

Right. So, are there any other states in which this issue is currently in play, or is everybody just waiting at this point to see what the Supreme Court has to say, other than Maine?

Roger Parloff

There are, yes, there are plenty of other states probably 17 or so pending. I can't give a reliable number. There might be, but there are some states like the Oregon, there's a proceeding at the Oregon Supreme Court at this stage. Which, which I don't think is likely, excuse me, Oregon. I got somebody from Oregon criticized my pronunciation of and so it's Oregon.

Benjamin Wittes

Oregon and Nevada. Okay. If you ever dare say Nevada in a forum like this you will get emails.

Roger Parloff

Okay. But I don't think there's a requirement there about when they rule. So it could well be that some of those are awaiting guidance.

Benjamin Wittes

Yeah, so I want to air a little bit a discussion that you and Quinta and I have been having on email or slack and sometimes in person in Quinta and my case, which involves the question of what happens, and I know people think this is super unlikely, but imagine for a moment that the Colorado Supreme Court were affirmed.

The court, the Supreme Court does not rule on the facts in this case. The facts were decided by a district court in Colorado, a state court. They were not the subject of a full blown proceeding, but a five day trial in which basically they admitted as evidence the findings of the January 6th committee report.

Roger Parloff

I think that's a little unfair. Only about, there were like 31 findings of the report. Originally they wanted to put in 400. The judge narrowed it down and in the final decision, there's only a maybe 11. It's okay. There was a trial, there were witnesses.

Benjamin Wittes

But the point is that there's no, those factual findings do not bind to the secretary of state of say Mississippi.

Right. And so the weirdness of the, this case as it's postured, as I understand it, is that if the Supreme Court were to say, Colorado Supreme Court is right as a matter of law that given these facts, which are not before us to review, we , they're within the, they're, it's reasonable enough for the district court to have found them, this amounts to insurrection and blah, blah, blah, and therefore, the result of that does not seem to me to require that he be removed from the ballot in any other state.

It merely says to Colorado, we're not going to interfere with your administrative and court action on grounds that it violates federal constitutional law. And so my question is What happens then? Do we have a state-by-state battle in which different courts in different states have their own findings of fact and apply Section 3 accordingly?

Or is there some mechanism by which that ruling gets effectuated nationally?

Roger Parloff

I do think that the facts of the case, that the situation is what you described. The court, the Supreme Court, if it did affirm, would be saying, yeah, you defined, none of these procedural barriers apply. You defined insurrection correctly.

You defined engagement correctly. The incitement does not, is not protected by the First Amendment and so it was a reason. There wasn't clear error. We affirm it was reasonable in that respect. That wouldn't bind anyone else. Of course, you could then try to use that using collateral estoppel saying, and full faith and credit trying to use collateral estoppel aggressively.

But I think other states would still have the wiggle room to say Trump didn't get it full and fair hearing in Colorado. And in fact, there would be an unusually strong case in that three out of seven judges essentially said that. At least that was a portion of the dissents, of two of the dissents, that there was a lack of due process.

And so, yeah, I think it remains, it would remain a mess, which is why there's such pressure on the court, regardless of what people think about Trump to avoid a constitutional crisis by trying to rule for Trump on something that would finally get rid of this. And regardless of how plausible it is.

And I think the strongest candidate for that is, and I've actually changed my mind about this a little bit, just in terms of pragmatism. If that's what they want to do, I think they would go back, have to go back to the Section 3 doesn't apply to presidents. That's the only one, because even if you say Section 3 isn't self-executing, which is the one I thought they would choose as a, as an escape hatch.

I'm not talking about whether these are convincing. I'm talking about, if you're afraid of a constitutional crisis, you're , or civil unrest, and you want to get rid of this. Even saying it's not self executing doesn't solve the problem in terms of what happens on January 6th, 2025.

Because saying it's not self executing eliminates all the litigation, but it doesn't solve the question, is he qualified? And so, it's just a live, just a very live issue on January 6th and January 20th and thereafter.

Benjamin Wittes

Quinta?

Quinta Jurecic

Yeah, I think that's all that is basically right. And I will say, just to put on my press critic hat, I do think that the press could be clearer in communicating this.

I think there's a perception that the Supreme Court will say, yay or nay, and the matter will heretofore be done with. And that's just not the case. I do think that. I agree completely with Roger that there's sort of one way to end this once and for all, which is to say Trump is not disqualified, whatever route you want to take to, to get to that.

And even if you try to get rid of it on some cutesy procedural way or say he is in fact disqualified at the Colorado, affirming rather the Colorado Supreme Court. Then you do end up with all of this subsequent litigation in state courts and how successful that might be and what that might look like I think is frankly a really open question that I don't know the answer to just because these are 50 different states that have 50 different procedures for letting people get on the ballot.

There's a very well, what I think is a bit cutesy argument that was raised in an amicus brief by the National Republican Senatorial Committee suggesting, aha, maybe Section 3 prevents insurrectionists from holding office, but it doesn't prevent them from running for office which is a great way to ensure the constitutional crisis that Roger was pointing to in terms of, what do you really want Congress to do if you show up counting the electoral votes on January 6th, 2025 with an insurrectionist who may not be qualified to hold office winning in the electoral count? So that sort of opens a whole other can of worms. On the officer of officer under issue, I tend to agree. I will say the more I read on this, the more frankly absurd I find the argument, just as a matter of evidence and common sense. There's Adam Unikowsky, whose substack I recommend to anyone who's interested in these issues, I think dealt with it the best that I've seen anyone deal with it by writing simply, this is why people hate lawyers. It's excessively clever and relies on a level of distinguishing between prepositions that reminds me of, my sixth grade Spanish class. It just seems ridiculous to put that much significance on the distinction between of and under, but there is an appeal to using it to wiggle out of this jam in particular.

And this is something I'm drawing on a point that Will Bode, who co-authored a law review article arguing that Section 3 does indeed disqualify Trump with Michael Stokes Paulson, has pointed out if you use the officer argument, it actually only applies to Trump, because, unlike every other president, he did not previously hold any other public office that would have disqualified him.

So there's a particular beauty to the sort of get-out-of-jail-free aspect of this argument. I think, I mean, in my view, the issue with that argument is the same as the issue would be with the Supreme Court writing, that January 6th wasn't an insurrection. Which is, can you write it with a straight face?

Benjamin Wittes

You can write it with a straight face, but you can't read it with a straight face.

Quinta Jurecic

Right. And there has been a lot of work by a lot of scholars put into arguing that this is a distinction that should be taken seriously, and I do think there may be a bit of a missing the forest for the trees argument, but we will see how carefully the textualists and originalists on the Court want to parse that distinction.

Benjamin Wittes

Yeah, so one, a couple thoughts, and then we should move on to Fulton County. One is You know, for those who haven't marinated in this issue, this is an issue with Section 3 that only arises with respect to the presidency, because with all the other offices, all the other federal offices that you might think of, like the members of Congress, senators, there's this other procedure, which is the bodies have the, themselves have the authority to seat or not seat members.

And so, if it were anybody but the president, you would say the Supreme Court would could very reasonably say, hey, this is something that is committed. In the absence of implementing legislation, this is something that doesn't sound in ballot access. It sounds in the authority of the body to consider whether they want to admit, insurrectionist Roger Parloff or Quinta Jurecic or whatever, or Ben Wittes.

And that argument was in fact made Roger, correct me if I'm getting this wrong, on behalf of Marjorie Taylor Greene. And Matt Gaetz I believe, right?

Roger Parloff

They were not Gaetz, but Taylor Greene and Madison Cawthorn.

Benjamin Wittes

Madison Cawthorn.

Roger Parloff

Yeah.

Benjamin Wittes

And so you don't have that argument with the presidency because it's unitary.

There isn't this opportunity to say, well, you can run, but the presidency doesn't have to admit you. And that's the major. Now, of course, there used to be a way to do that, which was if you took the Electoral College seriously, that you could say an elector who swears an oath for purposes of being an elector shouldn't vote for somebody who is constitutionally ineligible.

There was a mechanism like that, but then the Electoral College became a sort of constitutional formality, and so you can't rely on that anymore. And so there is this uniquely, I think, there's this unique lacuna with respect to the presidency, where, as Quinta says, it's completely absurd to say that it doesn't apply to it.

But the question of how exactly you apply it, and whether you apply it, should apply it, through ballot act, state ballot access rules, Section 3 doesn't really answer that question. Roger, what am I getting wrong here?

Section 3 also, I mean in addition to applying to congressmen and senators who can expel their own members, it applies to a vast number of federal officials and state officials.

Sure, but there's a remedy there too, right? If the if the Secretary of Homeland Security takes some action that affects you, and you don't think he's validly the Secretary of Homeland Security, you don't have to go through this whole impeachment proceeding. You could say, Ali Mayorkas, this action that affects me is invalid because Ali Mayorkas is not legitimately, notwithstanding appointment by the President and Senate confirmation, he's an insurrectionist within the meaning of the thing, and you have standing to raise that.

Right?

Roger Parloff

Who has standing to raise that?

Benjamin Wittes

Somebody affected by some action of the, think of like INS v. Chadha, right?

Roger Parloff

Oh, I see.

Benjamin Wittes

Right? There's some rando out there who's, who has personal who, who has injury in fact from some action of a federal official and that official's actions are challengeable on grounds that they're not legitimately holding the office that they are, but you can't do that with the president.

I would need to think about that. All right there's a lot of situations and yeah I'm not sure about that. I mean, I think what, I mean, Nick, I mean, Nixon Trump is in a unique spot because as Quinta says, he took one and only oath and it was only as president.

Right. And they've never confronted that before. That puts him in, and so if that presidential oath isn't covered, the game is over. He wins. And that's what some of these scholars Are arguing.

 All right, Anna Bower, let's talk about a super uncomfortable subject, which is this week's filings in Fulton County, Georgia.

I want to preface this by saying that we have not yet covered this matter on Lawfare, and Anna, I want to ask you to start by explaining what the matter is and explaining why we have not yet covered it on Lawfare.

Anna Bower

Right. So on Monday, Ben, it was the deadline for pre trial motions, except for motions in limine, which are, motions that have to do with what people can argue at trial.

Other than those types of motions, most of the defendants in Fulton County had this deadline for other pre trial motions that includes things that are akin to a motion to dismiss. So, really, things that are dispositive as to whether these charges will go to trial. And towards the end of the day, around 5 :30, there was a new filing by Mike Roman, who is one of the co defendants charged in the RICO case brought by Fani Willis and her team, and it alleged or it requested disqualification of Fani Willis and her office, including the special prosecutor who she brought on to investigate and then lead the case.

His name is Nathan Wade. It requested their disqualification on grounds or on the allegation that they have been involved in an improper romantic relationship, the kind of reasoning of this motion, beyond alleging this romantic relationship is that Nathan Wade is this outside prosecutor who's been brought in as a contract attorney, basically, and is being paid by the county throughout the course of his work on this case.

He's been paid nearly $700, 000 over about three years, I believe it's been. And so the idea is that because Fani Willis is allegedly engaged in this relationship with Nathan Wade, it creates a conflict of interest because they say that she, receives indirect financial benefits through the you know through dinners or through trips that they've taken together and that therefore they have this kind of incentive to continue prosecuting the case so that Nathan Wade can make more money. With all that said that's the reasoning of the case. There is nothing in that brief other than allegations as to whether or not Fani Willis has actually been in a romantic relationship with Nathan Wade either before he was appointed a special prosecutor or afterward. The brief says that there are documents that could prove this relationship that are under seal in the divorce proceedings that are ongoing between Nathan Wade and his estranged wife, Jocelyn Wade. And so that is the kind of reason as to, that is given as to why, supporting documents were not filed. At the same time, there were also no affidavits. And that there are just allegations that counsel has heard from unnamed sources about this relationship.

And so I think that's why we have chosen not to really talk about this issue on Lawfare, or I haven't written anything about it yet. Because it seems that in, in this, in these particular circumstances, there's no, sworn evidence and no supporting documentation about this relationship. And Fani Willis hasn't responded yet.

She has said that she will respond in an upcoming filing, but we have not seen, seen that yet. And so I, I think it's important and I think that Lawfare thinks it's important to, be able to talk about it after we see that response given the nature of what's alleged and the fact that it doesn't include a whole lot other than just allegations.

So, that is, and Ben, if you wanted to add anything about that, then feel free to, but that's the reason why we haven't talked about it in detail. But there are some things we can talk about it and it doesn't relate to the romantic relationship because there are some other interesting things that it has raised including, there, there is documentation from invoices of Nathan Wade that includes itemized lines that discuss, meeting with White House counsel and meeting with January 6.

And so that has set off a domino effect in which now Trump's team is seeking, more information about the communications that the district attorney during the investigatory phase had with White House counsel or the January 6th committee that has long been a kind of talking point for them.

Of course, is this idea that there's coordination between the congressional committee or the White House. Of course, there's nothing improper about a congressional committee providing, lawfully providing evidence to an investigative agency or a district attorney's office and there are real legitimate reasons why there might be communications between the White House and a district attorney's office because this case raises issues of executive privilege. And, the executive is the privilege holder in this situation. It also, there's certain situations in which you have to get permission to have former officials testify.

So we do know that there were something called Touhy letters which are like requests that are sent to the Department of Justice to get permission to, have former officials from the Department of Justice that can testify or be interviewed by this, the state prosecutor. So there's a lot of reasons why, maybe Fulton County District Attorney prosecutors were meeting with these groups or talking to them, but it's regardless the fact that these buy, you know these itemized kind of receipts say something about these meetings has been a kind of talking point that Trump's team has latched on to and they now want more information about that. So that's one thing that I think we can say about all of this is just that it's having a domino effect that could impact the case.

And, I'm happy to also discuss how it might affect the indictment. But I will leave it there for now. And Ben, I, I'll take your direction as to whether we should continue the discussion on it.

Benjamin Wittes

Yeah. I just have a couple of things that as to Lawfare policy that I would, I want to add to that.

The first is, it's a motion in a case that we're covering very actively. We're going to cover it. We're going to cover it either because the allegations have merit in which case we at a minimum, it seems like it's inappropriate behavior, it may involve the misuse of government money so at a minimum it relates to the propriety of Fani Willis's, if true behavior in office with respect to public funds.

We're not going to cover it before we have some sense of whether the alleged facts have, are in fact merited, and if so, how they are merited. So it is possible that the two of them are romantically involved, and this has no bearing on anything. It's possible that they're romantically involved, and she's taken appropriate steps to make sure that the, the public finance stuff is, that those are cleared by whatever ethics process exists in the Fulton County District Attorney's Office, right?

And it's possible, of course, that it's completely untrue. Or, that as Mike Roman alleges, that it's true in a fashion that affects his due process rights somehow. Though by the way, it's, there's no That connective tissue is completely unapparent from the motion that he filed, so my view is we're not going to pretend it's not there, we're talking about it right now, but there's no point in trying to evaluate it without her response.

And without some sense of what the supporting documents are, and you would cover it very differently if she filed a brief that said there's no basis of fact for any of this. I'm an officer of the court and I'm telling you these factual allegations are false. Then if she says Yes, it's true we're romantically involved, but the ethics office of the such and such said fine.

Well, whatever these are very different fact patterns and you would cover them very differently. And so it seems to me the better part of valor is just to wait until we have some sense of what the reality is. We are going to cover it. We're just going to wait until we can do it responsibly.

Anna Bower Yeah. Yeah. And I will say, I put it as like, we're waiting for her response, but it's not necessarily that it's waiting for some kind of supporting documentation or something to give us a better sense of the accuracy of the allegation.

Benjamin Wittes

Corresponds at a minimum.

Anna Bower

Yeah, to, to that end, I will say I, one thing I can say is that I received a press release earlier today from the woman who is, has ongoing divorce proceedings with Nathan Wade.

Of course, that divorce is relevant to all of this because it is allegedly in that case where some of this supporting documentation is, but that case is under seal of the court, meaning that the documents can't be viewed by the public. And earlier today, Jocelyn Wade, the estranged wife through her team sent out a press release stating, they're not going to comment on this except through court filings because of course they've received a lot of inquiries about the case or the divorce.

But they did say that there has been a hearing set in the divorce proceeding on January 31st about the matter of , potentially unsealing the case. The attorney for Mike Roman, Ashley Merchant, said in her motion that she was seeking to have the case unsealed, so there will be a hearing on that January 31st, and so it may be after that there will be more information that, will give us an indication of kind of what the supporting documentation is.

Benjamin Wittes

Yeah, so there is one thing about this that beyond what Anna and I both just said that I feel very strongly about came up this morning on in my conversation with Charlie Sykes on the Bulwark podcast, which is that, one thing that we can talk about at this point is the way the Trump world people are reacting to this, which has a real echo in the Pete Strzok, Lisa Page text messages stuff which, for my sins in life I was I'm very close to both of them and have been a close advisor to both of them in lots of things.

And I cannot pretend to be neutral on that subject. They're dear friends of mine. Look, the, central feature of Trump's public relations response to all things other than projection is changing the subject to make it about conspiracies against him and the more salaciously sexual the better, and already you are seeing a very similar vibe in the way the saturation coverage of this motion in certain Trump world circles and it really is very similar to the way they responded to the Strzok Page text messages, which like this, it was completely non obvious how, if at all, it affected the conduct of the of the Russia investigation. And by the way, when the inspector general finally got around to considering that matter, found that, he couldn't find any evidence that it affected any, that their supposed bias had affected any decision. And so I do think it is really important, Quinta, and I'd love your thoughts on this, to not fall into the trap. of assuming, even if true that there's something wrong with what Fani Willis did, and we will reserve judgment on that until we're in a position to address it, that this has any bearing on the conduct of this case.

And so my question is, am I responding to this very emotionally because I'm it just echoes in the way Pete and Lisa were treated, or what do you think? You were a close observer of that whole thing as well.

Quinta Jurecic

Yeah, for my sins. I think I disagree slightly with you. In my view, the issue with the Strzok Page story was in part that the contents of their personal comm or personal communications, albeit on government devices, were released to the press by the Deputy Attorney General by the Justice Department.

Benjamin Wittes

And his public affairs director, the now sainted Sarah Isgur Flores, who, may it be written on her tombstone, invited the press in the middle of the night to review these text messages on condition that they couldn't say that there was a reading room at the Justice Department at which to do that.

Quinta Jurecic

Yes, I'll also note that she was the press flack at the Justice Department during the period when family separations were being carried out. But so, I, the, those communications were released I know Strzok and Page have both argued in court that was in violation of the Privacy Act, I'm not actually sure where that litigation has ended up, but it was arguably a breach of their privacy.

And there was never at any point any serious allegation that their conduct had any actual effect on the investigation which I think is really key. It was an airing, an aggressive airing of dirty laundry in order to cast aspersions in ways that did not speak at all to the substance of the investigation, the way that it was conducted any of that.

And I should emphasize that the Justice Department Office of Inspector General report more or less concluded as much. There's no evidence that anyone's actions actually were affected in any way based on the political views that were expressed in those text messages. And I have to say, I actually think that is a substantially different scenario than what's being alleged here, which is a pretty massive financial, potential financial conflict of interest.

So Andrew Fleischman, who's a Georgia defense attorney and follows Fulton County closely, has said that in his view, at least, this is, potentially really concerning for what it says about conduct in the prosecutor's office. And so while I'm not familiar enough with the allegations and with Georgia law, I do think that there is more, much more of a hook here than there ever was with the Strzok Page story, and as with the Strzok Page story, where the attention always should have been on the question of, what effect did this actually have on the investigation, and the answer there seems to have been, after a pretty exhaustive amount of digging, none that it makes sense for the focus here to be what effect has this had on the investigation and on the functioning of the DA's office rather than, any salacious details that may surface about the conduct of the individuals in question.

Benjamin Wittes

All right, I take that I still do not understand how there is alleged to be connective tissue. If, assuming the worst, assuming it's all true, there's a bar issue for Nathan Wade and for Fani Willis, and maybe there's a criminal misappropriation of public money issue. I don't understand How any of that affects the facts alleged in the indictment?

Anna, is, am I missing something here?

Anna Bower

No I think that you're right, Ben. It's I, and I see, Quinta, the argument that this, if true, and again, I, I don't want to get into too much speculation about this again just because we're talking about something that we have no idea if it is true or not, but assume, even assuming the conduct alleged.

It shows, at the very least a real lack of judgment on the part of Fani Willis and the special prosecutor and they will have to face the political or potentially legal ramifications of that as you said, Ben, as it relates to potentially the bar or other consequences. But as to this case I do not see how it prejudices the rights, the constitutional rights of the defendants in this case.

I have not seen anything that connects this to the case as, like, in particular, so I'm with you, Ben, that I just, I'm very doubtful that it will actually impact this indictment. But it certainly does, even, not knowing what Fani Willis is responses or what the supporting documentation is going to be.

We can say that it has very much affected this case politically and the narrative that Trump is, crafting around it. So it has big issues. There's something there, but it's I just don't know whether it's going to have. I'm pretty doubtful it will have legal ramifications for the indictment itself.

Benjamin Wittes

Well, we will find out and we will cover it, whatever it turns out to be when we are in a position to do so responsibly

Anna Bower

Really quickly because I don't I know we're going to move on to questions, but I will just say the Mike Roman news overshadowed a lot of other filings in Fulton County. So there will be a hearing tomorrow on some motions.

Those are some of the smaller, discreet issues like Trevian Kutti or Kutti has lost her her counsel seeking to withdraw things like Rudy Giuliani wants to interview Jenna Ellis and Ken Chesebro and all of those folks who have pleaded out. And we also saw some motions from Trump's team that largely track a lot of the motions that he has filed in the federal case.

Probably the, one that is the most notable is the presidential immunity motion that they filed that is, if that goes to the Supreme Court, it will be decided by the Supreme, excuse me, if the DC Circuit decision ends up going to the Supreme Court, then it doesn't really matter what happens in Georgia because it's going to be decided by the Supreme Court.

But, if the Supreme Court, if it's just the D. C. Circuit, that's not binding on Judge McAfee or Georgia courts. It would certainly be persuasive, but it could be up to Georgia courts to decide differently from the D. C. Circuit. And so then we would probably see, I mean, I would be.

It's interlocutory appeals in Georgia are discretionary. So Judge McAfee could, say, no, I'm not going to accept this motion. And then it might be the kind of thing that Trump has to wait until after the trial, unlike in, in the case in DC. So we will see, but just wanted to note those few things there in terms of Fulton County happenings that don't relate to the Mike Roman filing.

Benjamin Wittes

All right, we're going to go to audience questions. There are 15 questions in the queue. We're going to try to get through as many of them as we can. Before we do Roger and Anna, anything else happen in either D. C. or South Florida that we need to take note of this week?

Roger Parloff

Well, obviously there was the argument in

Benjamin Wittes

Yeah, there was the oral argument.

See we did a whole separate livestream about that, and so we're just going to incorporate that by reference here. Oh yeah, there was a D. C. Circuit oral argument. See our discussion of that from Tuesday. Anything else?

Roger Parloff

There's one little thing in the Southern, Southern District of Florida case, there was a routine filing, a joint discovery status report, and they mentioned that the government mentioned that 2, 000 pages of stuff that had been classified is now unclassified.

Some of that might be stuff that was originally part of a classified document that never really needed to be classified. But part of it, they said, has been declassified, because it no longer needs to be classified. And 2, 000 pages, if I'm counting right, there were only 5, 600 pages of classified material that were, have been made available so far in this case.

Mainly, the 32 documents that were willfully withhold. So, making 2, 000 pages unclassified is, it's about 35%,

Benjamin Wittes

It's a hell of a way to deal with the CIPA issues.

Roger Parloff

It is.

Benjamin Wittes

If you don't like your chances in front of Judge Cannon on CIPA issues, making a discretionary judgment, let's declassify the shit out of this stuff.

It's, it takes a lot of power out of her hands. It requires a lot of hand holding with certain agencies that may be the classification authorities on those matters. Okay, we are going to get through as many of these questions as we can. Matt C., the floor is yours.

Matt C.

I'll try and talk fast. So my question goes to the disqualification case, and I'm not in charge of all the different textual arguments being made in that case for why Section 3 doesn't apply to the presidency, but I think one of them is that the presidency isn't an office, quote, under the United States, in that particular phrase.

I happened to be reading over the weekend, just hanging out, reading the Impeachment Judgment Clause, apropos of nothing, and I noticed that it uses that phrase. It says that if Congress convicts an officer or impeaches an officer, excuse me, it can bar him from holding, any office of trust or whatever under the United States.

And Ben I didn't know a lot of constitutional law when I was a third grader in the Nixon administration. But one thing I did know, I think, is everyone understood that clause to say that if the president were impeached, Congress could prevent him from ever running again for president.

And it seems like that wouldn't be the case under this reading of the clause. And so I guess my question is, one, can that possibly be right? I mean, I don't know if that was raised in the briefing or by the lower court, but it seems wrong. And two, at some point, doesn't it get a bit silly to do all the, I understand these arguments being made on a hypertextual basis and there's some support for them, but at some point it seems like you just need to stand back and take a common sense view of this language.

Those are my two questions.

Benjamin Wittes

Roger?

Roger Parloff

Yeah, it's a great question. You're right, there are two different arguments. The people that are most, that have really most championed one of these arguments are Josh Blackman and Seth Tillman, and they have submitted already an amicus brief in the Supreme Court. And remarkably, they take the position for exactly the reason you just mentioned that a president cannot be disqualified. Only lesser officers can be, unelected officers can be disqualified through impeachment. So they take the position, no, that what you assumed all along is false. I think they actually testified to that effect in the second impeachment. They also take the position that a president can accept foreign emoluments because the language is similar in that provision.

There are a lot of surprising things which they accept. It gets weirder than that because there are these two phrases. Office, officer of the United States and office under the United States, and these two leading authorities that are really the driving force behind this argument, they say that in 1788, neither of these phrases referred to the president. They say that when you get to 1868, when Section 3 is ratified, it is clear to them that officer of the United States still doesn't include the president. It is not clear to them whether or not office under the United States includes the president. It is really in the

weeds, heavy duty stuff and it leads to a lot of strange results.

But I think these guys have been articulating this argument since at least 2014 in other contexts. So I don't think they made it up for to get Trump off.

Benjamin Wittes

Yeah. I mean, Josh Blackman was making this argument with respect to the emoluments clause all through the Trump administration.

And it whatever it is not a bespoke argument crafted for this particular purpose. Okay, Michael, the floor is yours.

Michael

So hypothetical, let's suppose Trump is elected and at least one of the criminal cases is still going on.

He then directs DOJ to drop the case and DOJ accedes to that request.

Is the court then compelled to end the trial or can the court disagree with DOJ and insist that the trial continue? And if it's the latter, how does that play out?

Benjamin Wittes

All right, so the answer to this question, this came up in the Flynn case, actually, the Michael Flynn case, where Bill Barr decided to drop the matter that Flynn had actually already pled to so he, so this was a still more advanced stage and the judge in the case was infuriated by both Flynn's reneging on his plea deal, but also then the was very suspicious of Bill Barr's decision to drop the matter.

And he held a number of hearings on it, and then it was mooted by the fact that Trump pardoned Flynn. So he never actually ruled on it. That said, I think everybody believed, and certainly I did, that the court has no authority ultimately to force the Justice Department to continue a prosecution that it doesn't want to continue.

And that, that, that is a a matter that is entrusted to the executive branch. And so my assumption was that the district court in that case would have to eventually dismiss the case, could wave his arms about it a little bit, but wouldn't be able to resist that, and if the, if he tried, the D. C. Circuit would make very short work of that. That was my assumption, and it remains my assumption here, that there is no reasonable world in which, pre conviction anyway, it's a different matter once you're post conviction and sentencing and you have a final judgment, then it is up to the court whether to vacate it.

But pre conviction and pre final judgment, the Justice Department has essentially unlimited discretion to drop a case. And I don't think that would be I don't think there's any world in which Trump gets elected and the attorney general wants to drop a case against the president that he serves and the courts prevent him from doing that.

That's my assumption. If anybody disagrees, speak up.

Roger Parloff

I thought it was a little fuzzier still, but then there's also pardon trickery in case that doesn't work.

Benjamin Wittes

Right.

Roger Parloff

You can say I'm not I'm ill. I'm asking the vice president to take over for the next three hours. And then during that period, the vice president grants you a pardon, and then you feel better again.

And you can, that sort of thing. So I have no, given who Trump is, given the mastery he has over the Republican leaders in Congress I have no doubt that he can somehow get rid of these cases to go away if he becomes president.

Benjamin Wittes

Other Michael, the floor is yours.

Michael

So, my question is, why doesn't the 2021 impeachment proceeding provide the evidence needed to assume Trump disqualified under Section 3?

The article of impeachment he was charged with was literally incitement of insurrection and a majority of senators voted that he was guilty. Isn't that enough?

Benjamin Wittes

Let me turn the question around. Given that the standard for conviction is not a majority of senators, it is a a super majority of senators, and he was 10 votes short of that, why does the acquittal not show that at least for purposes of impeachment he was not an insurrectionist.

Michael

For purposes of impeachment, he was not, he did not meet the standard. But isn't the Section 3 bar lower? It would be redundant if this, as applied to officers subject to impeachment, the Section 3 clause would mean nothing if if a majority vote of the senate is not enough, right?

Benjamin Wittes

But let me ask you a different question then. So why is it up to votes of members of the Senate as to whether somebody engaged in insurrection. Section 3 textually commits to Congress the ability to remove the disability, but the disability is on the face of the text, imposed by the text itself.

It isn't subject to the, how members of the Senate feel about it.

Michael

I would call it a persuasive authority, right? If the Senators felt this, I mean, think about the people who wrote the 14th Amendment. Think about somebody who qualified and got that kind of vote by the Senate. Would not would not those people think that's someone who's disqualified?

Benjamin Wittes

What do you think, Roger? What do you think the chances are that the Supreme Court says, we take judicial notice of the solid majority of senators, and while not bound by that, it's persuasive authority that this is, you know, an insurrection, at least as far as the majority of the Senate thinks about it.

Roger Parloff

Well, I mean, it's not we also know how the Congress thought, house thought about it too. The majority of the House agreed. So it was both chambers. It's an, I don't think it's preposterous. We're all in no man's land with this Section 3, if it were a different Supreme Court, I think that's conceivable.

I just don't think it's conceivable with this Supreme Court.

Benjamin Wittes

All right. Catherine asks, how relevant is the Meese Calabresi amicus brief regarding Smith's appointment now, not valid being not valid since there was no oral argument. And Sauer said, while it was a good issue, he was not raising it. Is it dead in the water now?

Quinta this question has your name written all over it, since you and Professor Calabresi have a bit of a history. And I'm just gonna drop this one in your lap and you do with it as you will.

Quinta Jurecic

Yeah, so what Ben is referring to here is in 2017, 2018 I worked with George Conway to edit a Lawfare piece of his that I would say pretty effectively dismantled and then drove a truck back and forth over the dismantled pieces of the same argument, I think, that Calabresi is making here, which Calabresi had made then regarding the constitutionality of Robert Mueller's appointment.

George, it's worth noting, was writing that from the point of view of someone very firmly ensconced within the conservative legal movement, so I think it is probably fair to say that this argument is not going to get very far. There are excellent arguments against it, particularly from a perspective that I imagine a number of the justices on the right would find quite convincing.

I should also note that Professor Calabresi has been productive when it comes to making arguments against these various cases against Trump. He's also weighed in on the 14th amendment issue, including on the officer issue and the insurrection issue.

Benjamin Wittes

Although not always on the side of the He's argued both sides of the 14th Amendment issue, as I recall.

Quinta Jurecic

Yes, he's changed his mind.

Benjamin Wittes

Let me just add that if you want to know what's wrong with the Calabresi Meese argument in the current context, reading George's response to the same argument as applied to Bob Mueller that Quinta refers to, which is it's a developed article on Lawfare from a few years ago, is a very good place to start.

And the reason that people are not spending a lot of time on this argument, and I can promise you the D. C. Circuit will not it will not figure in the D. C. Circuit's resolution of the current matter is that the argument is not merely wrong, it is flamboyantly wrong. Okay Marsha, the floor is yours.

Marsha

Thank you. On the assumption that at some point, somebody might just say enough is enough I'm wondering what might happen if some state puts Trump on or off the ballot in defiance of a Supreme Court decision.

Benjamin Wittes

All right, I'll take a quick crack at that. So, as we said earlier, The Supreme Court's not going to order every state to remove him from the ballot.

If it were to affirm Colorado, it would affirm that there's no It would merely say that Colorado's removing him does not violate the Constitution, not is compliant with Section 3. That would not require that every other state do the same thing. There would have to be subsequent litigation.

So I don't think you're going to see a Supreme Court order ordering states to remove Trump from the ballot. And so I don't think we are, I think the question presupposes a factual

Roger Parloff

The opposite half of her question, though, would still be valid, that what if they say Section 3 doesn't apply to Presidents, and some states say, don't give me that, we know what it says, he's not on our ballot, so then what happens?

Benjamin Wittes

Yeah, I mean, I don't think I know the answer to that question either. But I do think we shouldn't jump to the assumption that there's going to be a Supreme Court order here to defy. All right. We have should Senator Schumer vote, hold a vote in the Senate to remove Trump's visibility under Section 3 of the 14th Amendment.

It seems like it could be an interesting political stunt for him to pull since Republicans could be put in the position of admitting that Trump engaged in insurrection if they vote to remove the disability or standing against Trump if they don't. I'm going to take this one myself. I love this idea, and I love it because I think it's, running the Senate is partly about political showmanship, and if you want, as a political showman of which the Senate majority leader is, to show that to create hard votes for the other side.

That's a legitimate thing. And if you find one that's win, Democrats aren't going to support it. So it wouldn't it, it wouldn't pass. But it could be a decent messaging bill. And if, by the way, if it doesn't pass, then you have an argument to the Supreme Court that said one house didn't even vote on removing his disability.

The other house voted on it and rejected it. So I think it's clever. Is it going to be the deciding factor in the case? No. But that's okay. So, the great Genevieve de la Ferra, who was one of our co hosts on In Lieu of Fun, asks, Does the executive privilege continue to lie with Trump? Or would it be covered by President Biden's waiver of executive privilege?

So Quinta you know the answer to this question. What is it?

Quinta Jurecic

I'm not sure I do, because I'm not sure what the context is. So, there had been a fight over invocation of privilege earlier in the January 6th investigation, where Trump had tried to argue that he could invoke the privilege after the Biden administration had, I think, technically not waived it, but declined to invoke it and the determination in that instance was that Biden's decision goes, essentially so that, that's the answer in that context I think.

Believe, if I'm remembering correctly, that the legal analysis was specific to that situation, the materials at issue, the way the Biden administration chose to handle it. But broadly speaking, though there may be some interest in maintaining the privilege that a former president has, it seems like the decision of a sitting president to waive or not to invoke the privilege is probably going to be dispositive.

Benjamin Wittes

Yeah, that is the correct. There are four great guiding rules of all executive privilege claims, and if you keep that in mind you will get them, get all executive privilege questions right 98 percent of the time. One is executive privilege is essentially absolute with respect to Congress and external actors.

The executive will almost always prevail in those contexts. Number two, executive privilege will almost always fail in the face of a grand jury in a criminal context. Not always, but almost always. Number three, the executive privilege cannot be asserted or the internal attorney client privilege of the executive branch cannot be asserted in front of a grand jury.

And number four, while the former president can assert executive privilege in the former president, the current president is the ultimate controller of the privilege. If you keep those four rules in mind, you can figure out the answer almost always to almost all, the way the courts will handle almost all executive privilege questions.

There are some nuances, but those rules are gonna, they're gonna work. Alright, it is 5. 30, we're gonna leave on time today. You are all great Americans. Thank you to Roger. Get some sleep. Thank you to Quinta from her undisclosed location. Thank you to Anna Bower from the snake plant SCIF. And I am Ben Wittes bidding you adieu from the hammock studio.

We will see you next week.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode is the intrepid Anna Hickey, not to be confused with the intrepid Anna Bower. You can get ad free versions of this and other Lawfare Podcasts by becoming a Lawfare material supporter through our website lawfaremedia.org/support. You'll also be able to pose questions to our panel, become part of the conversation. by joining our Zoom webinars, available only to our supporters. The Lawfare Podcast is edited by the one, the only Jen Patja Howell. Our music is performed by Sophia Yan. And as always, thanks for listening.


Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and NewYorker.com. For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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