Episode 50: America This Week, August 4, 2023, "The Red-Headed Indictment"

I'm kind of out of sync.

And I've been promoting, you know, County Highway, the new newspaper I'm involved in, which is doing great.

But we are meeting, we're meeting expectations for subscriptions that we didn't expect we'd meet in almost a year. So I'm not sure if on the operational end, that's not causing a little bit of a problem getting everything printed up, sent out, but....

And you know, the wind comes up and suddenly you have a conflagration on your hand and you get weird phenomena fire, cyclones, actual tornadoes made of flame. I've seen them with my own eyes. Yeah, yeah, they're quite apocalyptic.

And that's how it feels on the news scene. It seems some days like all the fires are burning together and becoming one big one, and it's hard to disentangle them. It's hard to do anything but kind of have a panic response and want to turn and run this week. With this Trump indictment, it's as though they all did become one. Because I see in the potential consequences of this indictment. Possibility that the disinformation world, the world of politics, the world of foreign policy could all get caught up in one big tornado.

I mean, I guess all these cases together are, among other things, going to be a counter to Biden's problems on the PR side for the Democratic Party. But they're separate and distinct from one another as well. I mean, I guess we should go through this, we went through the Biden case, right? So this Trump case. Out of all of them, it feels like it has the most meat on the bone on it, at least in terms of seriousness. I don't know about legal theory because the documents case seems like a pretty conventional prosecution.

Like they did this, this is against the law, this is what we're asking, this is what we believe happened. But here, there's a rather elaborate legal theory that heads into some pretty scary areas. I think for both sides, it doesn't reflect very well on Donald Trump. There's some very damaging stuff in there for Trump. But then there's also complete insanity in terms of what the prosecution is trying to claim is part of an illegal conspiracy. Which, you know, had me sort of seizing up in fear by the time I finished reading it.

But I'm curious to hear your reactions, Walter. When you first went through, what did you think about it in terms of the dangers for Trump in this indictment?

And these unnamed co-conspirators, which are lawyers and a campaign official, I believe, are looking for evidence of what they seem to presume to be true in the first place. Which is that somehow the election was stolen from. And as they are frustrated in their legal efforts, they seem to get pretty creative and insist that things can be found that they haven't found yet. That techniques can be used legally to supplant those which have already failed. So it is a portrait of anger, upset and some desperation, and in that sense, it's not flattering, it's certainly not flattering.

Now, my ability to speak legally on any of this is limited by the fact that I don't know what I'm talking about legally. I am the son of a lawyer, and so I absorbed a certain amount, a certain amount of it at my father's knee. But here I'm a little at sea because I don't really know what a conspiracy consists of. Legally, a conspiracy to defraud, and especially one in which the defendant is supposed to know that he's lying. I don't see a lot of evidence that the guy knows he's lying.

There's a lot of evidence that he is rejecting contradictory information, but I don't know that. At any point. He goes, Hey man, we all know we lost, but let's fool them and tell them that we didn't.

Like, there's a section in there where he says the defendant's knowingly false statements were integral to his or integral to his criminal plans. To defeat the federal government function, obstruct the certification and interfere with others right to vote and have their votes counted, he made these knowingly false claims throughout the post-election time period. So Smith with this, there is an introductory passage where he talks about how it's not illegal to lie. But Trump went above and beyond mere lying. And we're going to prove that he's in the indictment, putting Trump's state of mind at the center of their theory of conspiracy.

So they're going to have to go in and prove that. Trump knew that these things were false, and this felt to me like the weakest part of the case. Because their evidence for that was that he was told by various people, like the head of CISA, that they weren't true. Now, one could easily imagine Trump not believing those folks, but there's other stuff in there that that is damaging. But this whole idea of prosecuting Trump and having it rely upon a judgment of intentionality and planning. And all of this is, you know, I don't know if that's going to hold up, but it's an interesting aspect of it.

Because of this, or.

In fact, to be honest, it seems that from somewhere, Trump is getting rather specific theories about the fraud. That that don't hold up in many cases against. You know what the identified people are telling him, or you know what's reported in the indictment. But it seems unlikely that he came up with this idea in a dream, because it's so specific in some ways.

You know, so, as I have said, and I think you affirmed. Getting at his state of mind and getting at Donald Trump's state of mind in general may be a very difficult legal challenge. But that aside, I mean, what did you find most damaging?

And that wasn't true, obviously.

You know, Mike Pence, who?

Well, we'll get to what he did after this indictment dropped. But he's going to testify that Trump was pressing him to overturn the results. And when he said that I don't think I have the authority to do that, Trump's response was, You're too honest.

The Georgia Secretary of State, Brad Raffensperger. He's going to testify about the pressure that he felt right when Trump was in that much disputed phone call about finding the votes and all that.

By the way, just to go back to the moment of Pence the other day, the moment this indictment dropped, he tweeted. And Pence is running for president. On the Republican side says today's indictment serves as an important reminder. Anyone who puts himself over the Constitution should never be president of the United States. And some of us might agree with that. Some of us might wonder if that's going to be also fatal to his chances on that side of the aisle. But so, to me, that's all that stuff is damaging. Because it's because the answer to this indictment for the Trump folks is they're trying to criminalize free expression.

And they actually are, like, there are other parts of this indictment that are kind of horrifying. On that score, they don't have a coherent theory of what the actual conspiracy was. And I agree with that too. Like, you know, if the first case with the payoff for the porn star? It was really like one charge that they stretched to 34. This one is really more like 30 different weird attempts to subvert the process that they packaged up into one big count.

So they're alleging one big, coherent conspiracy that I'm not sure that it holds up. But the part that, the part that's going to be difficult to explain away, is this. We would like you to do a concrete thing that may result in, you know, overturning the election or delaying the election. And we know where we. We may have lied to you about it.

Right, I mean, you're talking about, you're talking about with Pence, with Pence, with McDaniel, like, you know, with the Arizona speaker, right? Bowers, who is going to talk about? And he's a he's a Trump supporter. So these are all going to be damaging witnesses, even for Republicans, I think.

But so that has to be understood. I mean, we've Donald Trump has been in our lives as a public figure for a long time, we've we've known him to be a serial line crosser. I don't think any of us would be surprised, really, by almost any kind of indictment, you know, especially if it involved something like fraud or, or, you know, any kind of business.

Dealings would you really be surprised by by a lot with Donald Trump? But this is him being both a line crosser and and maybe a little delusional at the same time. I don't know, it's not a good look.

That's not to say that there are not very serious problems with this indictment. That scare the daylights out of me, but that's my initial.

And the the entirety of that talk and those discussions, and those emotional, I imagine, rather charged conversations, is not necessarily reflected here. You, you have the conversations that, of course, the prosecution considers most damning. To a certain extent. They're probably carved from a large, solid block of bluster and anger and, you know, contempt for for what happened. I would imagine that in a potential trial, part of Trump's defense will be to bring on other conversations, first of all, which show his sincerity and believing that the thing had been stolen. He'll introduce all those people who maybe told him as much and try to bolster their credibility and say, yes. This is why I believed.

It may also be that things like saying you're too honest are parts of longer statements that absolutely, you know. Because we're both as journalists, we're both familiar with the use of quotes and and the so.

That's terrible, I mean, in and of itself, that's terrible. Because there are all sorts of people now who stand to profit from this indictment. Becoming a conviction or maybe just becoming a fundraising obstacle for Donald Trump, let's say. And they range from other Republican candidates to obviously the Democratic candidates, to people in government who may be afraid of prosecution themselves. Should Donald Trump become president, you know? His opponent, having legal and congressional difficulties of his own, might not relish the thought of being replaced by Donald Trump, who will then avenge himself.

So how this can be a case that's tried objectively, a little defies imagination. When half the country, and more than half of Washington, D.

C and the media, and so on, all have rooting interests in it. Where they're going to find these jury jurors?

And then every few years, they're awakened and told that they have to sit on a jury. And they hear ex nihilo out of the darkness this evidence, and they then rule. I actually, I think that's a pretty damn good novel.

No social experiences go ahead.

We didn't have, you know, weaponized agencies that can surveil people's opinions and so on. And the trial of Donald Trump for this.

It is to me, an almost inconceivable, sticky wicket. But with with conflict so profound that we can probably only narrate them as they happen, rather than predict them. Back to the thing.

My concern, obviously, for anybody who's listened to this show or knows me, is it's.

Repercussions for free speech, free discourse and the future of the First Amendment.

You know, perhaps I, perhaps I should be more worried about conspiracies to subvert our electoral process. But I guess I'm not as much because this one didn't work, right, you know? What we must remember is that, despite all the things that are alleged, Donald Trump did not prevail. And so, in a way, his repudiation already happened practically.

Now it might happen legally.

What will stand in into the future is a precedent that you are not allowed, and not just if you're president, but maybe if you're anyone to dispute what you should know is not true.

And we can't survive that precedent if it is applied widely. There's no way to, there's no way to speak after that.

So, for more than two months following election day, on November 3rd, 2020, the defendant spread lies that there had been outcome, outcome, determinative fraud. That we should talk about that passage in a moment, because that phrase comes up a couple of times. There have been outcome, determinative fraud in the election and that he had actually won. These claims were false and the defendant knew that they were false, but the defendant, the defendant, repeatedly and widely disseminated them anyway to make his knowingly false claims appear legitimate. Create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.

So I don't know is that that's four different times. They talk about him lying in the second paragraph of this indictment. And they also talk about the consequence, which is that people are less believing of official pronouncements as a result of his actions. Which, in my mind, I don't think that's not covered by. That's not in the remit of the Department of Justice to to weigh, however, how high or low the levels of trust in the administration of the election are.

But I just thought it was. And there's so much of this going through the document, so many instances that sound like they're pulled straight out of a, you know, one of these anti disinformation NGOs mission statements. Oh, so, and so made a false claim. And then there were death threats against that person, you know, as as if you're criminally responsible for the death threats, and I don't know, but it's it. Did that strike you? That the false claims aspect was was so central to what they were talking about in the in the indictment?

It's a. The election was honest, the idea that it wasn't is false. Well, are they going to have to now relitigate the entire election? Is it going to be Donald Trump bringing forth all sorts of evidence, or what he believes to be evidence that, in fact, it wasn't false?

We have all kinds of ideas about what happened during the election that I don't think were present, at least overtly, during the time of the behavior covered in the indictment. You know what I'm saying, but Donald Trump may come forward and saying. I was starting to hear all these other things that you've heard now from other sources. And these were what led me to believe it was a stolen election. If he can do that and sort of convince one juror that, you know, I had other sources besides the ones named here, and this is what they were telling me, and this isn't here. But let me show it to you now. And if that stuff is at all persuasive, then it could at least be argued that he had reason to believe he was telling the truth.

And secondly, these statements were false, it says, or something like that. Well, that means it has been metaphysically determined that the election results are, you know, they've been certified, they passed various legal tests. But in the scheme of things, can we ever know what's true and false? At what point can you say objectively, something is false when an attorney general rules, when NBC News rules?