TRANSCRIPT

Leah Litman Hey, listeners, it’s Leah. With the Supreme Court. In between oral argument sessions and just coming off the release of the tortured and extremely confusing and confused opinion in the disqualification case, we’ve got a special episode in store for you this week. First, we’re going to be talking about a new book that’s so piping hot and juicy. The Supreme Court and Judge Cannon in Florida have essentially put it on the banned book list. Yes, we’re talking about the book our own Melissa Murray, coauthored with Andrew Weissman, the Trump indictments, the historic charging documents with commentary. In this episode, we’ll talk about the charges that the federal courts seemed pretty interested in not allowing to go to trial. And we’ll talk about the book that helps explain the nature of the charges and the relevant players, so you can better understand everything that’s going on. Then we’ll have a great segment on another book. We are law professors, after all, so we both do the actual reading and hand out summaries of our own. So we hope you enjoy.

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts? I’m Leah Litman.

Kate Shaw I’m Kate Shaw.

Melissa Murray And I’m Melissa Murray.

Kate Shaw And today we are delighted to be able to bring you a discussion of the Trump indictments, that is the indictments themselves and the authoritative book just out on the subject.

Leah Litman We are so lucky to have, as a co-host, the Legal Eagle who can do it all and has literally co-written the book on the Trump cases. Of course, we’re talking about Melissa, who, together with her colleague at NYU law and MSNBC, Andrew Weissmann, has authored the new book, The Trump Indictments: The Historic Charging Documents with Commentary. And we are going to be talking about that now with both of the authors.

Kate Shaw So first, welcome to the show, Andrew. It’s great to have you.

Andrew Weissmann Nice to be here. I’m a big fan of this podcast, so I can’t believe I’m actually figured out a way to wangle myself onto the show.

Melissa Murray That’s how I got him to coauthor this book.

Leah Litman I was just about to say not to other fans.

Kate Shaw Oh, you promised an appearance?

Leah Litman Yeah.

Kate Shaw And obviously we are not going to welcome you to your own podcast, Melissa, but we are thrilled to have you both here. And huge congrats to both of you on the book.

Andrew Weissmann Thank you.

Melissa Murray Thank you.

Kate Shaw So for listeners who have not yet purchased their own copy, Melissa and Andrew’s new book gathers the four Trump indictments in one place and provides invaluable guidance and context from the two of them, who are both incredible experts on the subject. So maybe let’s start off with a background question, which is these indictments are obviously in the public domain. So what was your goal in collecting them in this way and then providing introductions and backgrounds and essentially annotating the different indictments. So what was the goal and who is the intended audience for the book?

Andrew Weissmann So the goal was to try to make legal documents understandable and manageable, and make people feel less fearful about reading them. This is such a weird area because, like, we’re all lawyers and we’re all very comfortable reading this. And although I would say maybe lawyers who are not steeped in criminal law or constitutional law, it’s even then it’s can be a little daunting. And we’re at a time where it’s so important for the public to understand what is happening in our legal system. And so this is basically trying to be a toolkit before here. Here are the actual indictments. But here’s a way to think about them. And then here’s some guidance, because we really spent a lot of time annotating various pieces of it, some of it really obvious stuff, which is, you know, what is this word mean? What what sort of a legal explanation for why X is in there or why is in there. And then also trying to give a little bit more context about decisions that were made, legal issues that are being raised or avoided by certain decisions that were made. So essentially trying to make sure that the public can read this and have the tools to make up their own mind as these cases go forward about what to make of it.

Melissa Murray I would also say we very much saw this as a public service project. I think at this moment, given the unprecedented nature of four indictments against a former president, we felt it was really important that every American be able to participate in this moment in some kind of way that was above a sort of baseline of information. And so we sought to raise that baseline by collecting the indictments, annotating them so people could understand some of these charging decisions, understand the individuals who are involved, how they relate to each other or don’t relate to each other, and then could make their own judgments about whether they believed that guilt or innocence was required. Coming out of these legal proceedings.

Kate Shaw I found while reading the book, there were some parallels to the January 6th committee report to my mind, which is that even if you followed in real time the testimony, the presentations that the committee put together, which were really powerful, it actually wasn’t until a written report that pulled everything together was produced and you could actually read it, that you actually had a sense of a full scope. And obviously we are midstream as opposed to at the conclusion of these prosecutions. But I had a similar feeling, which is that it was it’s very hard to get your arms around the full scope of these proceedings, especially because there are multiple prosecutions. And this is a very accessible way to do it. It also communicates just the unbelievable scope of the misconduct, like the criminal activity that is alleged across all of these different state and federal venues.

Leah Litman And I would just add that the book discusses, you know, how important the January 6th Proceedings Committee and the report were to actually getting at least one of these indictments off the ground, because by informing the public and just presenting to them the information about what happened, that is partially what led to the political movement for there to be some accountability related to January. And so, you know, this is a huge public service as far as just bringing people into the fold and cluing them in to what is happening and what is going on.

Melissa Murray I think that was definitely our hope that we would allow people to be able to approach this in an informed way, even if they weren’t lawyers, they weren’t law students. You know, one of the things that Andrew and I sort of realized as we put these together was that these four indictments, document misconduct or alleged misconduct at the beginning, the preceding, the during and the after of the Trump presidency. I mean, it’s just sort of like can’t stop, won’t stop screaming, allegedly. And I don’t think we fully appreciated that until we put all of these things together. And so, yeah, I think we sort of had our own January 6th special committee moment where we’re like, wow, this is a big deal.

Andrew Weissmann To Kate’s point, one of the things that the January 6th committee hearings did is they were thinking about the fact that people get information in different ways. It is no longer I mean, I worked on the Mueller investigation and there’s, of course, something great about a long, report that’s dense. And for lawyers, it’s great. You can read it and you can get all of that. But that’s not what an average American citizen is going to sit down and read, you know, a 400 page, fairly turgid report. And so it’s important to figure out what are ways to help people digest what’s going on. And that January 6th committee hearings, I thought were brilliant at doing that and innovative in terms of how they did that. And Melissa and I both are on MSNBC a lot and are used to speaking in haiku, which is you have a limited amount of time to convey thoughts, and this is a way to be able to allow people to sort of dip in and out of the cases and read it at their leisure. And, you know, it’s Melissa said, we, we have we have a long introduction which helps put this in context, sort of globally and historically. But also with respect to the indictments, you can sort of go in and try and understand various pieces at a time frame and the pace that you want. And again, trying to figure out how is the best way to have people read this and participate and understand what is going on so that it’s just there’s less of a barrier between the legal proceedings and the public.

Leah Litman So you mentioned putting these indictments in context, and that is something I wanted to turn to, which is part of the narrative in the book, is about how really typical some of this is. So that’s true partially from a comparative perspective in that officials, including heads of state in other countries, have been tried for, you know, political corruption related crimes. It’s also true from more of a internal domestic legal perspective in that some of these charges, particularly the charges related to, you know, the mishandling of classified documents, are not that atypical at all. So, I guess, you know, can you speak to that? How in some ways, these indictments are pretty usual standard legal process. And in particular, walk us through some of the episodes in which, you know, other former leaders or even current leaders who face criminal charges, just to, again, kind of put that in context.

Melissa Murray One of the notes that we’ve heard as these prosecutions have mounted is that, you know, this is an unprecedented time for our country, and it is, but only if you look at this through the lens of American exceptionalism. It the fact of prosecuting a former head of state is actually not atypical at all. If you look at other systems throughout the world, and there are a lot of systems where a former head of state has been called to account through criminal liability for misconduct undertaken while they were in office. So we talk about that and really try to locate these four prosecutions in the context of that global landscape, where the prospect of prosecuting a former leader isn’t viewed as an assault on democracy, but something that is actually essential to remaining a thriving, vital democracy, that without accountability, you effectively have leaders who view themselves and a country that views their leaders as above the law. And that’s completely incompatible with the idea of democracy. So in these other systems, in order to maintain the rule of law, this kind of accountability is viewed as necessary. It’s just we’ve never been in a situation where there has been the kind of misconduct or alleged misconduct that would warrant this sort of extraordinary step. But although it is extraordinary, it is not anomalous, and it is not anomalous for thriving democracies.

Andrew Weissmann One of the things we talked about in the introduction is, is described how, Jack Smith is sort of uniquely aware of what Melissa just talked about because of his experience on the International Criminal Court. Aware of the global nature of. This problem and that we are we are unique only in that it hasn’t happened here before, but we are not unique in terms of dealing with, the unfortunate issue of what do you do when a senior political leader has engaged in criminal conduct? And holding them to account? So, you know, I think he is very aware of what, Melissa said, but I think the second part, which is sort of, which we looked at, is this idea of of selective prosecution, maybe not in the strict legal sense, but in this idea of as are these crimes which are not, normally prosecuted, where there can be a claim that you’re bringing the case. You know, just because it’s a political adversary. And that’s where we you really don’t have to just take our word for it. We discussed this and give references in the book. But just to take, for instance, the Mar-A-Lago classified documents case, and this I know from my time in government, I was at the FBI. And we unfortunately dealt with this issue with people who mishandled classified information, improperly took it home or even disseminated it. Those are routinely prosecuted. Up to and including very high level people, who have engaged in this, to not prosecute Donald Trump would be completely antithetical to the idea of treating like a like, which is the baseline of our justice system. He’s much more senior than people who are in jail right now for doing far less, or at least allegedly.

Kate Shaw And the principle of treating like cases alike is the kind of note you begin the introduction on, and it’s woven throughout the discussion. So both from the kind of comparative international context and just to take one more bit on Jack Smith. Right? So, you know, people probably were aware of this when the appointment was first made, but obviously some time has passed. Right? He was a war crimes prosecutor at The Hague. And actually, you know, both was familiar with and personally carried out the prosecution of the president of Kosovo. So this is very, very familiar terrain for him.

Andrew Weissmann People may not remember this. He actually came to his current position as special counsel from that position. He was actually overseas when he first talked to Merrick Garland about undertaking this project.

Kate Shaw Yeah. So we have this prosecution that if you zoom out in global context is not atypical. And I should say, you know, a set of prosecutions and even focusing domestically, if we’re looking at similar conduct, this is also a quite typical prosecution in the context of other similar alleged activities. So you have that narrative, which is actually this is very typical. But there are there’s another kind of countervailing narrative, which is that there are aspects of some of these prosecutions that are atypical, but maybe not in the way people might expect, which is to say, there is actually special treatment afforded to Donald Trump in some of, if not in the kind of formulation of the charging decisions, at least in the specific way that these early stages of the prosecutions have been carried out. So can you talk about that a little bit as well?

Melissa Murray I think one place where it’s just very clear that this is being handled differently because it is Donald Trump. And again, I don’t mean this in a way in that, you know, he is being selectively targeted. But for example, the Jack Smith indictment, the January 6th indictment that’s in DC, there was a decision made to really create a lean and mean charging document. So, you know, there are a range of charges that might have been brought against Donald Trump. And instead, Jack Smith chooses just four. He does not charge him with insurrection. He does not charge him with incitement. I think those are particular charging decisions that were made, because of the standard of proof that would be required to establish that at trial and how difficult that would be, but also because it would require so much time, there would be so many challenges that he would launch. And then all of that would take away time for the trial to actually go forward. So I think one of the things that makes all of these prosecutions very different from any other criminal prosecution is that there is this November 2024 deadline that is looming, or maybe even earlier, if you count August and the various nominating conventions of each party like this is a candidate for president, this isn’t an ordinary defendant. And so the time frame is really important. Everyone is sensitive to the time frame. And I think charging decisions were made with that time frame in mind. And you know, and the decision wasn’t to charge certain things but to forego certain charges in order to meet that time frame.

Leah Litman [AD]

Leah Litman I was wondering if you could talk about one of the concepts you introduced in the introduction, and that is the concept of the show trial. Could you share a little bit about that? And you know what you mean by it and how it relates to these indictments? I should just say I really liked this as a concept. It remind me of Raquel’s statement from Vanderpump Rules about Peter being a starter pony and these being, you know, show trials or starter trials. But anyways, so, I want to hear from you, not from you, about this.

Melissa Murray I want to hear more about how Vanderpump Rules and Jack Smith are the obvious collaboration that no one saw coming.

Leah Litman That’s where my mind went.

Melissa Murray I bet Jack Smith, too, if he’s really being honest.

Kate Shaw I want to see Andrew try to answer the Vanderpump question.

Andrew Weissmann Exactly. I’m just gonna be like.

Melissa Murray I’m trying to save him. I know he doesn’t know.

Andrew Weissmann I’m sitting there. I’m like, moving right along.

Kate Shaw That’s usually my move, Andrew.

Melissa Murray I was that was that was a time save for you to Google Vanderpump Rules.

Andrew Weissmann Yeah. This is, this is reminds me of when I’m on with Ari Melber, and he is always, like, quoting lyrics. And I finally, at one point, I turn to him and I said, look, if that is after the 18th century, you lost me. I am that nerdy.

Melissa Murray Andrew Weissmann does not spit hot bars. No he does not.

Andrew Weissmann I know it’s shocking, but I’m really nerdy. So but Leah, to your, question. So I always think about this in terms of Ukraine. So I spent two years in the Mueller investigation. I was in charge of the Manafort stuff. So I spent a lot of time learning about Ukraine politics and, the president, when Manafort was, working in Ukraine, was somebody who had prosecuted his political rival, Julia Tymoshenko. By the way, this is a notable thing. So he’s prosecuting his female political rival. And the campaign, that President Yanukovich had was lock her up.

Leah Litman Oh, no.

Andrew Weissmann By the way, who who is his campaign manager? Paul Manafort.

Leah Litman Wow.

Andrew Weissmann Fast forward, Donald Trump, female political rival, campaigned. Lock her up. But that relates to your question about a show trial, because with Julia Tymoshenko there was a trial. I’ve read a lot of it. And because it sort of came up in the course of our investigation. And one of the things we talk about is that, there are two types of show trials. One, you can have a show trial where the evidence and everything is just made up. The person just didn’t do it. And it’s a it’s really a sham trial. There’s nothing about the prosecution that’s real. That obviously is something you you worry about. We do have checks in our system for that, which is there has to remember that to convict somebody not only served grand jury indictment, there has to be a jury finding unanimously, that there’s proof beyond a reasonable doubt, and there’s judges who oversee the sufficiency of the evidence, etc.. So there’s lots of checks on that. But I think there’s a second way we talk about, show trials, which is that the person may have committed the crime, but it’s a crime. That is. So, it’s like jaywalking. It might be something that. Yeah, it’s on the books, but nobody gets prosecuted for it. Many, many people do it. So why is it being done here? Now, that’s not to say that there can’t be a rationale for why you might charge something that has not been charged frequently or, you know, or has been charged in a long time, but there needs to be an answer. So relating to the discussion we were just having for like the classified documents case, this doesn’t come up. I mean, it is routinely prosecuted. It would be anomalous to not prosecute it with Julia Tymoshenko who is prosecuted. She sort of fell into the category of I think there might be evidence that was may have been manufactured, but also she may have done a crime, but they were every politician or so many politicians committed the same crime and everyone over looked at it. It was really not the crime of the century. So there was this sense of a show trial as to why she was singled out. We discussed that in connection with the Manhattan charges, because we think the other is there’s really no argument. And I think we both ended up thinking that with the Manhattan charges, there was more of a reasonable debate that you could have. Not that it’s a show trial and not that it’s a legally selective prosecution. But there is an issue about, okay, these are it’s not normal to charge Stand-alone false business records in Manhattan without any other crime. And again, that’s not to say it’s wrong. It’s just that you then have to ask yourself. What? What’s the rationale for doing it here? And I would imagine Alvin Bragg would say that the rationale is that it isn’t really stand alone. It was part of a campaign fraud, that was done to, help Donald Trump in 2016 election by keeping, relevant information from the public. And he was doing it with complicity of the National Enquirer. But that’s that’s sort of a long answer as to how we were thinking about show trials.

Kate Shaw There is the sense that emerges that you just alluded to, Andrew, which is that you all spent a lot of time reading deeply all of these documents and came away thinking that there was no question and really no defensible other alternative but to charge in both the document case and the January 6th case. Georgia, maybe I’ll ask you to talk about. But Manhattan is clearly the case that you guys are a little equivocal about that. It could have gone either way that Andrew, as you just alluded to, it’s not that this is never charged, but it’s usually like embezzlement plus the falsification charge as opposed to standalone. And yet that’s the first case to go to trial.

Melissa Murray I think New York was the case about which Andrew and I probably disagreed most emphatically. I think we were pretty much on board for most of the cases.

Andrew Weissmann Meghan Markle was the biggest disagreement but on the legal front. It was.

Melissa Murray I told you not to fucking mention her again. I told you not to do. Don’t go there.

Andrew Weissmann Line. Over the line.

Melissa Murray Over the line.

Andrew Weissmann Over the line?

Like, I’ll cut you after this.

Leah Litman If the books were not already in print, your name would be X’ed out as a coauthor.

Melissa Murray I would take an exacto knife and cut your name out of everything. Anyway, I think we did disagree on this a little bit. Andrew, if I’m mischaracterizing your view of this, jump in. That maybe this was more of a stretch, the bootstrapping and again, would open up the Manhattan DA’s office to criticism that this was sort of a targeting. I don’t know that that’s necessarily true. This I think the falsification of business records wasn’t a minor thing, especially if you consider it in the context of the 2016 election. And these weren’t just falsification of records and, you know, in tandem with embezzling or whatnot, but for the purpose of defrauding the public or keeping from the public a material fact that many individuals might have wanted to know about someone for whom they might be casting a ballot, I think that makes it more significant. I also think it’s more significant in that it also involves the interplay between the National Enquirer, which is also alleged in that indictment, like sort of the catch and kill aspect of it, where folks in the tabloid industry were purchasing stories and keeping them under wraps in order to facilitate Donald Trump’s political rise or allegedly, according to the indictments, or that’s what’s specified in the indictment. So I think the interplay of all of those things and the background landscape of the 2016 election made it a little more consequential. And so, yes, does this seem like small potatoes in light of keeping classified documents at your insecure beach house in Florida? Probably.

Leah Litman In the bathroom.

Melissa Murray But I do,.

Leah Litman In the bathroom.

Melissa Murray In the. Yeah, in the gold plated bathroom with, you know, nothing on the windows or what? Or very limited window coverings. But I do think it is important and I think, you know, Alvin Bragg, the D.A. in Manhattan, would have opened himself up to quite serious criticism if he hadn’t move forward.

Andrew Weissmann I think, by the way, this is one reason that the book is is good is like this. This is the kind of thing we’re trying to be. Have you be able to read and understand what are the different pros and cons, and then you can have your own opinions about it? I by the way, I like Melissa, totally agree that one of the things that I found particularly shocking in connection with the Manhattan charges is the role of the National Enquirer, this idea that the media is complicit with a political candidate, and others. We saw the same thing in the Dominion civil suit against Fox. That is still just so shocking, but that is a huge piece of those charges was not just sort of these hush money payments to keep information from the electorate, but it was done with a major, print media.

Leah Litman So maybe to give listeners and potential readers a little taste as a treat, we can share and amuse Bush. Exactly. An interesting detail or aspect of commentary about some of the different cases and indictments. So Melissa and Andrew feel free to say, like, yeah, that was my favorite part too. Or, you know, to tell listeners there are actually better parts, go read them and find them. So some of my favorite parts, I’ll just list a few from the Florida case in particular, because. I think that one has fallen a little bit under the radar and gotten out of the news, you know, as those procedures happen. Exactly, exactly. Because it is just kind of dragging her feet.

Kate Shaw Well, isn’t there some classified Information Procedure Act proceedings happening? There’s some stuff happening. We just don’t know what’s happening.

Melissa Murray We just don’t know what is. Right.

Leah Litman Yeah, but there’s all kind of, like, pretrial stuff.

Andrew Weissmann And it took a long time.

Leah Litman In the public eye.

Kate Shaw Totally.

Leah Litman So first, I found it interesting just to read your speculations about the motives for Trump doing this and taking the documents and keeping that, you know, like, was he doing this to feel important? Did he do it because he thought he might get compromising material about an opponent? Like it’s interesting, but at the end of the day, it’s also kind of legally irrelevant.

Melissa Murray I want to emphasize that this was speculation, and we say it’s speculation in the book, like we actually don’t know why the documents were retained. But what we do know is the fact that the documents were retained. That’s the whole kit and caboodle. Like, you know, most of the time when people have these documents, it’s inadvertent and they’re immediately returned to the institution that requires them here, the National Archives, not the case here. And so, you know, there are a lot of questions around why there was such vehemence around retaining these documents. And I think it’s a really good question.

Andrew Weissmann We also talk about how legally, you know, motive is not an element of the crime, and it’s not required to be proved. But that doesn’t mean that motive doesn’t come in to a trial. It is an evidentiary matter. So we sort of walk through that distinction.

Kate Shaw Two things that I would mention about the Florida case, and one, you kind of had to bring these charges in light of similar and much less egregious conduct with respect to classified documents by other lower level officials. And so it’s sort of typical that way. But then it’s also kind of atypical in that most people in government don’t have access to the range and volume of classified materials that they could then take out in boxes. The whole idea of a, you know, compartmented information is people have a little bit of access to some stuff, but really it’s just the president who is situated in this way, who has access to all of it. So that I thought was pretty interesting. And you said something I can’t remember if it’s in the introduction or attached to the Florida indictment, but it’s interesting to think of all of those other cases and to sort of be frank about the fact that treating like cases alike here would mean he could get a really, really lenient sentence if he pleaded guilty, like most of these cases end up serious charges and a guilty plea with like either some probation, a fine, maybe a short sentence. And so where he ever willing and where his lawyer is ever willing to talk about a guilty plea, it might end up being pretty trivial in terms of sentencing, even with all these documents. That was a good reminder to my mind. But I don’t think we see any sign of that. Is that right?

Andrew Weissmann Yeah. I don’t think there’s a sign that he would admit out of his own mouth that he did something wrong. I think it’s sort of against brand, but we do talk about that. His.

Melissa Murray Pleading guilty is for losers.

Andrew Weissmann So that there’s that. The sentences here are really sort of, topsy turvy and that senior people who plead guilty, just to be clear, they have to admit what they did. But the senior people are getting sentences that are really disproportionately low compared to more junior people. I was around when the Petraeus matter happened at the FBI. Let’s just say it was very controversial. I had gone by the time the prosecutors had worked out the the plea, but he was not alone and getting what.

Kate Shaw Can you remind listeners just how lenient the sentence was?

Andrew Weissmann Well, he.

Kate Shaw Just a fine right?

Andrew Weissmann Deutsche they pled they pled to what they did, but they didn’t just spend a day in jail. And just to remember, Petraeus not only took classified information, he disseminated it because he gave it to his biographer, who is having her, I guess we would say a personal relationship with and and entanglement. Yes. And then he also lied about it when the FBI and asked him. So there were a number of things he did that were aggravating. But he also then pled to what he did. And so he didn’t continue to obstruct. But having said that, you know, his sentence was disproportionately low to other people. And so if you believe in like being treated a, like if Donald Trump were to go down that road, those would certainly be precedent. As is, if I were his defense counsel, I’d be using there is an a judge should actually really strongly be considering the gravitational pull of those cases because, you may disagree with it, but he is entitled to be treated the same or similarly if it, you know, absent some distinguishing features.

Leah Litman Yeah. You mentioned the kind of egregious ness of, you know, this particular conduct. And, you know, one of the things that reading this book reminded me of is how, you know, there was a court authorized search and the FBI recovered, you know, additional documents that hadn’t been turned over. And that just kind of underscored, again, the willingness to continue. Flouting the law. Even when you are told like you have these classified materials, you have to go find them. And they just continued to do what they were going to do. Okay. So I’ll just note two other kind of things about two different indictments. One is small and the other large. This is not the most important thing about the Georgia case, but it really did strike me in light of something that happened at the close of the Eugene Carroll case. And that was Judge Kaplan warning the Carol jurors not to tell anyone that they were on the case. And in your discussion of the Georgia indictments, you know, you know, that Georgia law requires that the grand jurors names be included in the indictment. And while that has some benefits, like here, it expose the grand jurors to harassment and other misconduct. So that was, you know, a small detail about the Georgia case. And then the DC case was, you know, you’re stepping back and asking like, what finally led people to pull the trigger and indict Trump? And one of the things you note is it was Trump himself, like continuing to press the stop the steal. The election was stolen. Here are my plans to do the same thing in 2024. And all of that. Right. Again, making it all the more difficult to assume, as some senators did, that Trump has, quote, learned his lesson.

Kate Shaw The January 6th hearings, and in particular, Cassidy Hutchinson’s really stunning testimony about Trump’s conduct on January 6th seem on your telling to kind of be what actually spurred, in addition to the Trump conduct, that Leah was just describing what spurred DOJ, which had previously been really pursuing a bottom up approach to January 6th prosecutions, to finally turn its focus on Trump. And I was I don’t think I had quite realized how slowly they were going in terms of ascending up the ladder of, you know, frankly, culpability. And how sort of directly, causally linked that testimony was, which actually, I think, Andrew, you said and I totally agree that those hearings were an incredible undertaking and wildly successful, I think, in, in, you know, reaching the public and maybe changing hearts and minds and, but also actually inside DOJ, they had a huge effect. And in a moment where Congress often feels like it is not doing its job. But this is, I think, a really important counterexample.

Andrew Weissmann Absolutely. I think the DC indictment, like the Georgia indictment, in many ways, it shows that the idea take center. It was true that the Department of Justice was doing a bottom up approach. That that was did not work. That that it was not the correct approach. There’s nothing about the DC case that is a bottom up. Bottom up is like Enron where you people, you flip people going up and they all can give you intelligence going up. That is not how the DC case was. You could go right into the white House. And so when Cassidy Hutchinson testified and there were immediate reports that it took, prosecutors by surprise what she had to say. I mean, I remember writing something for the New York Times because I was so upset by that. But it made it clear this was not going to be ground level people at the going into the Capitol who are going to be able to tell you about what Mark Meadows or Donald Trump, was doing. And so you needed to go directly into the white House. First. And the indictment I think proves that proves that up. But I would take one thing that the January 6th hearings did, in addition to sort of that public sentiment and pressure is that it gave cover also to the department to do more because it changed the public sentiment in the public. The way the public was thinking about this.

Melissa Murray I think there remains an open question of how much cover it gave them, because I think, you know, one of the things that we are finding in this moment, as we wait for any of these trials to start, in particular, we’ve seen the delays in the January 6th trial is, you know, was it a good strategy for the department to focus on those lower level January 6th defendants and then basically sort of eventually come to the conclusion that there was too much going on to avoid the question of higher up the chain for much longer. And so, I think, you know, that’s a question that we’re grappling with. And I think there’s you’re exactly right, Kate, in the telling of this entire episode, the heroes, I think, will be the January 6th select committee that, you know, went forward to bring this to the court of public opinion, which in turn made these legal processes possible. I will also say that it’s actually the Georgia indictment that kind of speaks most to a lot of the evidence that was surfaced in the January 6th hearings. I mean, the January 6th DC indictment that Jack Smith brought is a little bloodless and spare. Which is not to say that some of this local color will not come out in the trial if and when that happens. But it is, you know, a kind of bloodless march. And that was by design again, to have a lean and mean document so you could get to a trial, you know, doesn’t charge the unindicted coconspirator who just focuses on Trump. That’s not the case in Georgia, which is a sort of sprawling indictment with charges under the Georgia Rico statute for the purpose of telling a narrative about election interference and what it was meant to do in Georgia, but also that it wasn’t isolated to Georgia. And so there is this way in which each of these indictments sort of works as a complete set, complementing the others. Again, the misconduct that allegedly occurred before he was president, misconduct happening while he was president, misconduct happening after he is president. And you just sort of get this broad, broad picture of a period, a tumultuous four year period, four plus year period where the presidency was not the presidency we have known and may never be the presidency we see again, hopefully.

Kate Shaw And it really is captured and reflected back in the pages of the book. So I think we will need to leave it there. Once again, thank you so much to our guest, Andrew Weissman, who is a first time, but hopefully not last time. Strict scrutiny guest Andrew also hosts a great podcast with Mary McCord that’s prosecuting Donald Trump. So if you don’t already, be sure to check out that podcast. But Andrew, thank you so much for joining us.

Andrew Weissmann So great to be here.

Leah Litman And of course, thank you to our incredible co-host, Melissa. We love doing this with you. And the book is a genuine public service and essential reading. And just to remind our listeners, it is called the Trump Indictments : The Historic Charging Documents with Commentary.

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Leah Litman Our next segment is about a book that’s also related to the here and now, and this one is about disinformation, with the court just hearing arguments in a case about whether the government can force platforms to post disinformation after the court just released an opinion about the 14th amendment that seems pretty full of disinformation, or at least misinformation. And next week, with the court hearing a case about whether it’s illegal for the government to encourage platforms to combat disinformation. I am delighted to be joined by my colleague Barb McQuade, professor from practice at the University of Michigan Law School and the author of Attack from Within: How Disinformation Is Sabotaging America. Thanks for joining the show, Barb.

Barb McQuade Oh, thanks, Leah. Great to be with you.

Leah Litman So we thought it would be a good time to talk about your book, given that the Supreme Court is weighing a challenge to some laws that were in some respects designed to facilitate disinformation on social media, laws that sought to ensure social media companies weren’t censoring anti-vaccination posts or election denialism. And at the beginning of the next sitting, the court is going to be hearing a challenge to some government action that is designed to combat disinformation. They’re the government encouraging and calling for companies to remove vaccine disinformation from websites. Plus, with the recent immunity actions pertaining to another threat in the book, disinformation threat to democracy seemed like a great time to talk about Attack from Within. So first question. In the book, you identify some of the tactics of disinformation. You know, that proponents of disinformation use. Could you run us through a few of them?

Barb McQuade Yeah, I’ll share just a few of them. So, you know, one is this idea of repetition that if you repeat something often enough, people will tend to believe it. So, you know, we heard Donald Trump talk about Stop the Steal just this weekend, I heard Steve Bannon at the see PAC conference, getting the crowd to chant, Trump won, Trump won, Trump won. And this is a tactic that goes, you know, back to the dawn of human history. Hitler wrote about it in Mein Kampf, the idea that you need simple, repeatable statements that people hear again and again, and then if they hear it not only from a single source, but they start hearing it from other sources, it becomes self-affirming that people start hearing this thing and think it to be true. So that’s one. Another is, the big lie, make a lie as big as possible. And certainly we’ve heard the, you know, the the stolen election was Trump’s big lie, just as we had, you know, Hitler’s big lie. And what Hitler wrote in Mein Kampf was the reason a big lie works better than small lies is because of human nature. We all, you know, engage in small lies from time to time. My sister might tell me, yeah, your hair looks fine. Or my husband might say, no, dear. You know, that dress doesn’t make you look fat. But we we engage in those white lies out of a place of kindness and courtesy to other people. But what Hitler wrote in Mein Kampf is that most people could never imagine that someone would have the audacity to lie about something of such significance. And for that reason, in an ironic wave, the bigger the lie, the more likely we are to believe it. And then just one more mention, and that is this idea of, destroying the concept of truth. And this is something that I think we are seeing, I’m hearing an awful lot of from the right. I did an interview today with someone who said, well, who’s to say what’s disinformation anyway? You know, the idea that there really is no such thing as discernible facts or evidence or data, and this is something that Putin in Russia uses. It is sometimes referred to as the fog of unknowability to give inconsistent statements about something to say on one day, you know, the rockets were shot by Russia, and the next day the rockets were shot by Ukraine. And the day after that, the rockets were shot by NATO. And people, you know, eventually get throw off their hands and they say, I don’t know what to think. They’re angry, they become cynical, and finally they become numb and then disengage from politics altogether because I don’t know what to think. And that is incredibly dangerous for a democracy to have people disengaged from politics. So those are just some of the tactics.

Leah Litman Yeah, the book covers many more. And I’m going to ask you about some of that, because when you were giving your first answer, talking about simple lies that are just like repeated again and again to reaffirm them, I couldn’t help but think in your description about the kind of overly simplistic claims that some in the Republican Party or the conservative legal movement have talked about the courts. Right? You think about originalism, the idea that our Constitution is just what the original meaning of the document is. It’s simple, right? It’s overly simplistic, and it doesn’t capture a lot of constitutional law, but they keep saying it right. And that has helped kind of give it traction, you know, in the courts and the broader, you know, public, in some respects. But okay, so in the book you also talk about the causes of disinformation, you know, some of which are global and some of which are more particular to the United States. So what are some of the causes of, you know, different information that you go over in the book?

Barb McQuade Well, one of the things I think is that, there are people who are seeking to achieve power, political power. When the Republican Party is, is shrinking. And so one of the things that they prey upon is fear. There is data that suggests that by 2045, we will be a country, the United States, that is no longer a white majority. And that frightens some people. And rather than saying this is an exciting opportunity for a new day in America. There are people who are preying on that fear and talking about how you will lose power. You will have less. There is not enough to go around. And so preying on that fear, I think living in a global economy brings with it certain changes, changes in the economy. Changes to climate, the introduction of it, of refugees of all over the world. And there are those who want to stoke fear and polarizes over those things. And rather than trying to solve problems, we’ve got immigration problems at our border. And rather than trying to solve those problems with compromise and common sense, and nuance, instead we try to oversimplify these debates and say that, you know, it’s all or nothing. We can either, have open borders or we can put people in cages. And of course, the truth is somewhere in between. And the only way to solve problems is by recognizing those truths in between. But, we live in a changing world. And, instead of embracing those changes in those opportunities, there are people who will try to use fear against us, to to build their own power.

Leah Litman So as my kind of follow up about originalism suggested, one of the things I wanted to talk to you about was disinformation, you know, at the Supreme Court or how it relates to the Supreme Court. Because when I was reading the book, I was really struck by two things that I would love to get your reaction to. One is how the Supreme Court itself displays some of these disinformation tactics. Right? I kind of jokingly talked about repeating overly simplistic things until you convince people they are true. But another phenomenon, or a tactic of information that you talk about in the book is something you describe as emotion over reason, right? Appealing to emotion rather than logic or law, or as we kind of describe in the podcast, when the Republican justices kind of go with the vibes, right, rather than the kind of analytical arguments or the law. But the book also mentioned some of the causes of disinformation that I think are really linked to the court. So you talk about, for example, particular conceptions of free speech that facilitate dark money as one of the contributing factors to disinformation. And so I guess the question I wanted to ask you goes something like this. One tactic of disinformation you identify is attacking institutions, the institutions that could protect us from disinformation. And you say the courts, right, could be such an institution. And yet you also recognize at points that the court is contributing to some of the causes of disinformation. And I think it’s engaging in some of the tactics of disinformation. So I guess, what do you do when an institution is itself facilitating the causes of disinformation and in some cases, engaging in disinformation, you know, and so you need to challenge the institution, right? Verbal or political attacks, which might in some cases be a tactic of disinformation. But that’s almost like a necessary part of any plan to combat disinformation.

Barb McQuade Yeah, it’s a really great point. I think that our institutions are necessary in a democracy, and I’m a big defender of institutions the Department of Justice, the FBI, the US Supreme Court, all of these things are there to safeguard us against individuals who would try to use power to manipulate others and to use the power to oppress people. However, all of these institutions are run by human beings, and human beings are imperfect and are fallible. And that’s why we need oversight. We need criticism. We need free speech and protest to be able to call out when we think they are abusing their power. And, you know, for example, what the court has done, with originalism, I think originalism is a brand of disinformation. I’ll tell you my take on originalism. And that is, originalists want to use the common public understanding of terms as they existed at the time the the language was drafted, you know, whether it’s the Constitution itself or an amendment at that time. And if they were consistent in that interpretation, maybe I would say that that is a legitimate school of thought. But instead they cherry pick when it works. Right. We will talk about the common public meaning of certain words, but not others, like a firearm, for example. A firearm, at the time of the founding was a musket with a single shot that had to be reloaded. And yet today we use the Second Amendment to support all kinds of laws to protect, you know, assault weapons and other kinds of things. I mean, that’s turning it on its head. Or if we were going to give the common public meaning to the Fourth Amendment about, the right, you know, to protect, persons, places, things and effects from government search. How on earth does that apply to phone taps or text messaging or cell site location information? And the correct answer, of course, is it doesn’t, and that we must look at the values that are ensconced in the Constitution. But we have. Have to adapt to modern the modern world, and to consider that guns have become these weapons of mass destruction in a way that they weren’t at the founding. And so, I think that engaging in disinformation is in originalism is really a form of disinformation that began in the 1980s. So it didn’t really exist before then, and it was an effort to push back on what people saw as courts that were overreaching, during the war in court in the 1960s. And so, to me, it does not have intellectual, integrity because of the way that, originalists cherry pick.

Leah Litman In the book. You specifically talk about the Second Amendment, and you have this, phrase that I just want to highlight to, invite our listeners to go read the book, because there are many others like it. But you referred to, quote, the insurrection theory of the Second Amendment, which was a framing I loved, and how the court has taken, again, this constitutional provision built a story around it that isn’t really rooted in real history and has the potential to do real violence right, and cause real problems to our system of government.

Barb McQuade Yeah, and I didn’t coined this phrase. Actually Jamie Raskin, who himself teaches constitutional law, I don’t know if he coined the phrase but has written on this phrase. And in fact, he he spoke at our law school about this, this concept, which is where it first caught my attention when he came to visit and speak to our law students. And it’s this idea that, you know, the Second Amendment isn’t there to protect us, from predators in the wild. And it isn’t there for us to protect against someone who might intrude into our home. But it’s there so that we can rise up against our own government. And in fact, that just couldn’t be further from the truth. If you look at the documents themselves, I mean, the Second Amendment to me is about the need for a well-regulated militia. We need people to have guns so that we could defend the United States against invaders from Britain or wherever it was from. And there also are parts of the Constitution that empower the president to repel, insurrections at the idea that we have some sort of right to overthrow our government is contrary to the blueprint of governing. That is the Constitution. I think people might conflate the Declaration of Independence, which was a call for rebellion with the Constitution, which is our blueprint for governing. And there’s most certainly nothing in there that protects our right to overthrow the government. That’s a crime. And if you try to overthrow the government, you will be charged with a crime for seditious conspiracy or inciting insurrection.

Leah Litman And the Supreme Court might not actually allow your case to go to trial. But that’s a separate issue. So, this conversation and book, you know, is all the more topical given the social media cases the court just heard and the one the court will hear next sitting. And one of the things you talk about in the book is how, you know, the United States commitment to free speech, while noble in a lot of ways and helpful to combating disinformation in some respects, can in some instances facilitate disinformation. So in the social media cases, you have state laws, you know that really promote disinformation and misinformation. But other government regulation of social media could actually fight disinformation right through regulation of social media. So can you talk a little bit about how to balance these considerations, or how to think about the First Amendment in an age of disinformation and misinformation?

Barb McQuade Yeah. So let me start by saying I am a ardent defender of the First Amendment. I think the First Amendment is what protects us from, powerful voices and allows us to protest our government and the things we talked about when our institutions, fail us. And so it’s a really important. Right. But I think that because we have this right that is so cherished by the left and the right, it can sometimes be used as a handy shield, to call anything that in any way limits speech as censorship. And of course, like all rights, the right to free speech can be regulated. I mean, you cannot, engage in threats. That is a crime, even though it is speech. You can’t commit fraud. That’s a crime, even though it is all about speech. Right? I tell you, I want to sell you some swampland in Florida. That speech. And so that can be regulated. It has to, you know, comply with strict scrutiny that, the name of this podcast, that there’s a compelling governmental interest and that the limits are narrowly tailored to achieve those interests. But I think, you know, what we’re seeing now in these cases that were just argued before the Supreme Court about, these laws enacted by states designed to, stop what they call censorship by social media platforms, in my view, in fact, these state laws are not preventing censorship. They are violating the First Amendment rights of the social media platforms who have a right to take down content that they believe violates their terms of service. Users sign an agreement that has certain terms of in conditions that, community standards, that there will be moderation so that people won’t be harassed and bullied and threatened when they’re online and will be exposed to, disinformation about Covid vaccines or stolen elections or other things. And so, you know, in an effort to stop those things, the states of Florida and Texas. Have called that censorship and said that they are silencing conservative voices. Well, yeah, conservative voices that are lying and. Right. And you and it’s not opinion. Certainly if somebody has a very conservative viewpoint on something, let’s hear it, let’s debate it, let’s hear it out. Let’s try to, you know, reach common ground and solve problems. But if there are things that are factually, demonstrably false, you know, that a Covid vaccine will make you magnetic or something like that. There’s no place for that, in our serious discourse.

Leah Litman And in addition to the causes of disinformation and the tactics of disinformation, the book also gets into some solutions. We are not going to canvass those in depth. But I very much encourage our listeners to check out Barb’s book, Attack from Within How Disinformation Is Sabotaging America, in order to learn more about disinformation and what to do about how to address it. Barb, thank you so much for taking the time to join the podcast in what is an extremely busy week for you.

Barb McQuade Oh, thanks so much, Leah. I really appreciate the chance to talk to your listeners.

Leah Litman The Crooked store’s latest collection is all about protecting reproductive rights and telling lawmakers to keep their bans to themselves. The No Trespassing collection features four different designs, each inspired by a different state where abortion freedom is under attack. There’s Stay Out of My Swamp for Florida. Stay Out of My Hole for Arizona. Stay Out of My Prickly Pear for Texas. And Stay Out of My Strip for Nevada. A portion of proceeds will go to Vote Save America’s Fuck Bans the Fight Back Fund, which currently is supporting abortion rights organizations across key states. Head to Crooked.com/store to shop. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

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