Plain English with Derek Thompson: How Strong Is the Case Against Donald Trump?

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Today's episode, the case against Donald Trump.

So there's a line in my favorite law movie,

A Few Good Men, where Kevin Bacon opens his prosecution

by saying, the facts of the case are these,

and they are undisputed.

And that movie really made me want to become a lawyer.

I did not end up becoming a lawyer,

but this seems like a good moment to quote Mr. Bacon,

because underneath all the hubbub,

this case isn't very complicated.

The facts of the case are these, and they are undisputed,

at least undisputed by just about everybody

paying close attention.

Donald Trump slept with Stormy Daniels.

Donald Trump's team instructed his lawyer, Michael Cohen,

to pay her hush money.

Then they paid back Michael Cohen in several installments,

which were recorded in the business as ordinary legal fees.

This deal was struck during the heat

of a razor-tight presidential election in 2016.

Those are the pieces of the case,

and they are basically undisputed.

What is disputed is the law.

What law did this break?

And all those facts that I just recited,

is that all that happened?

Or is there some other smoking gun

that turns what might ordinarily be

a business fraud misdemeanor into a felony?

On Tuesday, Donald Trump pled guilty to 34 charges,

11 counts for false invoices, 11 counts for false checks,

and check stubs, 12 for false general ledger entries.

That indictment is now but unsealed.

I told you that when it would be unsealed,

we'd have a legal expert on to talk about it,

and today, that's what's happening.

But here's what's so interesting to me.

Legal experts do not agree

about the strength of this indictment.

On one side, a lot of lawyers I've read and heard say,

this case is a nothing burger.

This case is a legal embarrassment.

It is an inevitable win for Donald Trump.

We are trying out an entirely new legal recipe

on an ex-president.

It isn't completely inappropriate.

On the other side, there are people

like today's guest, Norman Eisen.

Eisen says, actually, the ex-president

has something to worry about.

He is a lawyer, he's a senior fellow

with a Brookings Institution,

and Eisen was also, this is relevant,

a co-counsel for the House Judiciary Committee

during the first impeachment and trial of Donald Trump.

Eisen and I talk about the indictment,

the strength of Alvin Bragg's case,

and why the naysayers are, according to Eisen,

and you will hear us push back and forth a bit,

why he thinks the naysayers are dead wrong.

Of course, as we talked about last week,

the indictment of an ex-president

who is also running for president,

who is also now the far away front runner

for the Republican nomination.

This is not just a legal story.

This is a politics story.

And so we've got the great political reporter,

Dave Weigel from Semaphore

on the second half of the show, to talk politics.

No big wind up from me today.

Politics and law are, I might as well be blunt

and honest about this, interests of mine,

but this is not my bag.

This is not my expertise.

In all honesty, I am just out there,

probably like the rest of you,

just reading and trying to figure out

what the hell is going on.

Thank you as always for listening,

trusting me to make plain

that which is sometimes not particularly plain

even when the facts are undisputed.

I'm Derek Thompson, and this is Plain English.

Here we go.

Norman Eisen, welcome to the show.

Norm, you just published a big piece

in the New York Times about this Trump indictment,

and before we evaluate the strength of the case,

what makes you and your co-author

qualified to assess this indictment?

Well, your test thing might false modesty, Derek.

I'll start with my co-author,

Karen Agnophilio, former chief deputy

in the Manhattan district attorney's office,

has worked on countless cases,

including, as I'll explain,

many cases that are actually very similar to this one,

although it has unique aspects,

the books and records charges

and the campaign finance violations

that make those charges a felony

have been charged often in New York state

and books and records all the time

by the Manhattan DA under her supervision

as the former chief deputy.

As for me, I am one of the only living American lawyers

to have actually charged a president

with crimes and misdemeanors

and then put a president on trial.

That's because I was counsel in the impeachment,

first impeachment of Donald Trump.

It was high crimes and misdemeanors,

not the low crimes and misdemeanors,

but I investigated these identical hush money claims

as high crimes and misdemeanors.

I know the evidence, I know the law,

and I have been a criminal defense lawyer

doing criminal practice and a scholar

for more than three decades.

So those are the qualifications of Karen and myself.

I think those qualifications absolutely suit.

Thank you for pushing through your own humility.

You've had a look at this indictment.

False humility.

False humility.

Excuse me, Norm.

Before we get to your assessment

of the indictment and the statement of facts,

just give it to me plain.

When you looked at this, what was important?

What is D.A. Alvin Bragg charging Donald Trump with?

Well, he's charging him with attempted interference

in the 2016 election.

That was a precursor, as I wrote in the Times,

and in an opinion piece that I published immediately after.

This 2016 conduct involving the hush money

was a gateway drug for the attempted election interference

involving getting the president of Ukraine

to attack Joe Biden, at least the attempt in 2019.

This was the subject of the impeachment, first impeachment,

and then the massive election interference

that constituted the attempted coup and insurrection

following the 2020 election.

This was the gateway drug, and the way it's being persecuted,

there's no crime on the books for pushing a gateway drug

of democracy to denial,

but the way it's being persecuted, as you always do,

is to look for the specific crimes that were violated

when you have one of these assaults.

Here, Trump, it seems to me, powerful evidence

that Trump created false books and records.

He characterized hush money payments that were made

to Stormy Daniels as legal fees.

Under New York law, you can't write in your corporate books

and records that something is a legal fee

if it's hush money payment.

That is a slam dunk New York crime,

and it's a felony crime if you do it to hide another offense.

Here, it appears that there were campaign finance violations.

Michael Cohen can't give $130,000 payment or loan

to benefit the campaign.

He bled guilty to that in federal court.

There's state campaign finance violations.

There's tax issues.

When you cover up or advance another crime,

as happened here, that is a felony books and records violation.

Of course, the reason, returning to my point,

election interference, the reason for this hush money payment

was to benefit Trump's campaign.

There's a ton of evidence of that, including that it came right

after the Access Hollywood scandal.

A second, sixth scandal might have killed Trump in an election

that he only won by a little over 70,000 votes in three states anyhow.

So Bragg's charges are righteous.

They are not petty New York misdemeanors and felonies.

They're major democracy crimes, just like the ones

that other prosecutors, state and federal are looking at for 2020.

I'm going to give you a chance to respond to some people

who have made the opposite claim, which is that they worry

that the indictment is not as strong as they were expecting.

But before we get there, there's a couple of numbers I want to run over

that I got from your reporting, from your articles.

There are 34 charges in this indictment,

11 counts for false invoices,

11 counts for false checks and check stubs,

12 counts for false general ledger entries.

This is not the first time that DA Alvin Bragg has indicted people

on false record charges in his brief tenure as district attorney.

Is that right?

That is right.

He's charged now with Trump 30 defendants in a little over a year

with false books and records.

Books and records are the meat and potatoes of Manhattan DA

and in general, New York DA charging.

And for people who aren't lawyers, books and records,

what are we talking about in plainer language here?

You cannot create fake business records

like the false checks and check stubs, the false invoices,

the false general ledger entries

that say these hush money payments were legal fees.

And the reason that we have that rule is

that precisely because this is a badge of fraud

and authorities want businesses to be honest to stop them.

If you can create false books and records,

then you're on the royal road to all kinds of other frauds.

So this is to prevent exactly what we have here,

the kind of wrongdoing that may have illegitimately changed in election.

They stop it at the front end with books and records.

It's charged frequently, not just there.

It's been charged thousands of times across New York.

I did a table of, you know, 50 of the most comparable cases

over the past years.

There's nothing unusual about a books and records charge

in this situation, and there's nothing unusual

about a books and records charge being bumped up to a felony,

as is happening here, treated as a felony crime,

because it covered up a campaign finance violation.

Michael Cohen was not allowed to make $130,000 payment,

$130,000 loan, however you characterize it,

to benefit the Trump campaign.

He pled guilty to it.

The proof is powerful that Trump intended this as a payment,

but for the campaign, that's the legal test he never would have made.

You know, it doesn't count on Michael Cohen's guilty plea

or Michael Cohen's word.

There's a lot of other proof of that proposition.

So that is the book and records crime here.

I want to get your take on what the strongest

and potentially weakest parts of this case are.

But before we get there, just a really quick question.

You mentioned that the DA has brought this charge thousands of times

over the last few years, 30 defendants on books and records

just in the last 12 months alone.

What is the DA's batting average on these kind of cases?

Are we talking like 20%, 50%, 80% conviction rate?

It's well over 90, the high 90s.

I mean, I haven't done the analysis,

but you know, we're talking about extremely rare cases

where you don't get a conviction.

I talk about them all, the successes and the failures

in my essays for just security,

I've published a series of them really doing deep seven,

doing deep, deep diets into the facts, the laws,

the big chronology in there of evidence

and all of the different legal aspects and tables

of these cases, both for books and records

and specifically campaign finance prosecutions

based on books and records and analogous statutes

in New York and nationally.

Let's get right into that.

The title of your essay is, quote,

we finally know the case against Trump and it is strong.

What is the strongest part of this case?

Is it the abundant evidence?

Is it the fact that Alvin Bragg in the DA's office

is incredibly and routinely practiced

in bringing these kind of cases to court?

What in your mind and in the minds of audiences

should people take away as the strongest piece of this case?

The strongest piece of this case is that Trump did it.

He paid hush money, lied about it in the books and records

in order to benefit his campaign,

violating campaign finance law,

and he may have changed the outcome of the election.

There's the theory of the case in one sentence.

It is a strong case.

Bragg has the wind at his back.

It is not a slam dunk.

There's some legal arguments that are going to be

oddly contested.

I believe Bragg has the better of those legal arguments

and I believe that he is going to succeed

in getting this case before a jury.

And while Trump is presumed innocent

and as a lawyer who for most of my career

has been a criminal defense lawyer

until Congress hired me to prosecute Trump,

I take that presumption very seriously.

But to me, it looks like a powerful case.

Yeah, so let's say that Alvin Bragg,

let's say you are advising Bragg's team

and they come to you and they say,

we want to know what the most likely obstacle is

for actually getting a conviction in this case.

What is the weakest part of this case?

What's the biggest unknown that they should be anxious

about going into this trial?

Derek, you are the first person to ask me the question

in that form of the hundreds of questions

that have been asked about this case

since it hewed up in the past weeks

on TV and podcasts, the radio, reporters,

my editors, all these publications I've done.

So I think the weakest,

some people say the weakest part of the case

is Michael Cohen, my friend.

I got to know him because I investigated

the same stuff during impeachment.

He was one of the first people I talked to

about the Hush Money Associated Proof.

But Michael Cohen, having read the statement of facts,

I believe is going to be 5% of this case or less.

They have built a case that will allow

a very strong cross-examination of Michael Cohen

and it's going to be a vibrant one.

And he's going, you know, I think he's going to do well,

but to the extent the jury sees that cross-examination,

what they've done, that's why Greg, I think,

took a year to build this case.

He's built a case that includes Michael,

but it has a much broader sweep.

So I don't agree with the people who say

Michael is the weakest part of the case.

There's been a fair amount of conventional wisdom

that the novelty of applying the well-recognized law

that allows Greg to do a Books and Records case

about campaign finance violations, about state campaign law,

all of which has been done before successfully,

and I wrote about them in the New York Times again and again

and again, that's been prosecuted,

but never against a federal president.

I should say a federal candidate

in applying New York state law.

That's right.

I think I read from your reporting,

from your reporting I read that the Brooklyn DA

convicted an Assemblyman, Clarence Norman,

for soliciting illegal campaign contributions

and for felony falsification on business records.

That, however, and this is getting into the point

of disagreement here, not between you and me,

but between you and the legal scholars,

you know, this is obviously a local race.

This is a New York Assemblyman,

but the people who disagree with this case,

and I've read several essays of disagreement,

the School of Thought there,

and I think it was probably maybe best articulated

by Richard Hassan, who is a UCLA legal scholar,

wrote this up in Slate.

I'm just going to quote to you and get your response.

Quote, based on what I've seen so far,

the decision to charge Donald Trump with felonies

in New York state is a mistake,

both legally and politically.

He continues, quote, it is far from clear

that Trump could be liable for state campaign finance crimes

as a federal candidate.

Overstate prosecutors may be precluded

from prosecuting federal candidates for federal crimes

under a rule called preemption,

meaning they have to be brought by federal authorities

rather than state authorities.

Alvin Bragg is a state authority,

he is not a federal authority,

and so under the preemption rule,

they could maybe throw this case out or lose it.

Could you define preemption for us?

Just define preemption as you understand it

and tell me why you're less concerned

that preemption could spoil this case.

So Derek, there's two issues that I think are,

where I think Bragg has the better of the argument,

but they're the two most contested,

let's not say weakest,

but they'll be the two most contested legal issues,

and then Cohen will be the most contested factual issue,

and a second contested factual issue will be Trump's intent.

Would he have done this but for the campaign?

I think there's proof beyond a reasonable doubt.

So those are probably three and four,

those two factual issues.

One and two we talked about,

and it's not just Clarence Norman,

it's a wide array of political figures in New York

who've been prosecuted, books and records,

New York state campaign finance violations,

convictions obtained,

but they were state figures.

So applying that state law to a president is one.

You're raising the other contested issue in this case,

which is Bragg has said he's gonna do belt and suspenders,

he's gonna apply state law and federal law.

Can a state prosecutor apply federal law

in a state prosecution?

The answer to that question is preemption,

and there is a doctrine,

but it has exceptions that federal prosecution

or that the prosecution of federal campaign finance matters

has to be done in federal court by federal prosecutors.

That's what it is, in other words, preempted,

blocked off for state prosecutors.

But here's the thing,

the preemption doctrine is highly varied

from issue to issue,

and the preemption that applies to FICA,

the federal campaign finance law statute,

is as false as Swiss cheese.

And again, and I wrote about this in the New York Times,

and the contestants are not going through case by case,

just like on the state.

They have to deal with Norman and the many other cases

that I've itemized.

State authorities have been allowed again and again

under this very gap-ridden, exception-laden preemption doctrine

on federal campaign finance issues.

The prosecute matters against individuals

who are related to or connected to federal campaigns,

and I link to all those cases in the New York Times.

Is there one that's exactly on point?

No. Are they analogous?

I believe so, and we will soon find out.

But the brilliance of what Craig has done

is he's done belt and suspenders.

He said, well, I'm going to try the state case.

I'm going to try the federal campaign finance issue.

He's not stopping there.

He's raised the possibility in the documents he filed

with the court that he's going to raise a tax issue here.

There was a tax conspiracy.

So it's belt, suspenders, and the tax is kind of like duct tape.

There's suspenders and duct tape here.

He's leaving nothing to chance that's as it should be

because, as you just asked me a few minutes ago,

you know, this is a very powerful case,

and I think Trump should be prosecuted for it.

Thank God Bragg is doing it because the Donald Trump

Bill Barr Justice Department, which should have done it,

didn't do it.

Last question before I let you go.

I read your piece.

I'm listening to your arguments.

I'm listening to them compelling.

I'm placing that alongside the fact

that there's a lot of people writing at the Atlantic,

where I work, writing in the New York Times,

like David French, who are no fans of Trump,

who are also lawyers, who are also legal experts,

who have not come to your conclusion.

In fact, they've come to the opposite conclusion.

They are upset with Bragg and upset that the indictment

is not as much of a slam dunk as they wished.

I mean, Andrew McCabe was just on CNN saying that he's disappointed

by this indictment.

In your view, what is it that they're fundamentally getting wrong

if you're confident that this case is strong

and they're confident that this case is weak?

Well, where would we be without debates?

I think that they are, at the most fundamental level,

misapprehending that this case is a very important democracy matter

because it might have, out of all the cases we're considering,

it might have changed the outcome of an election.

I don't think that they're adequately accounting for,

they often say, well, it's novel,

but they haven't accounted for the many.

It's not just the Norman case.

The many times that a state prosecutor in New York

has gone after books and records cases

based on state law campaign finance violations,

which we have here, they are not accounting for,

and state law allows that.

State law doesn't say you can only prosecute based on state violations.

It says if there's a false book and record in New York

and it's done for another, quote, unlawful purpose,

different statutes use different words.

It doesn't say that the unlawful purpose has to be a state one.

So this bump-up is actually allowed by New York law.

Why shouldn't you be able to prosecute a books and records case

if there was a federal cover-up?

That doesn't, you know, that doesn't,

for the state law piece, there's no preemption.

Then they're saying, well, but wait a minute,

he's also bringing in federal crimes,

but they're not looking at all of the preemption cases.

And they don't, you know, haven't,

I've done campaign finance in my prior watchdog group.

I've done campaign finance work for decades.

I advise President Obama on it

as part of being his epic czar in the White House.

When you look at those preemption cases,

it's not as clear-cut as they say.

So I think they're, and then they have hesitations about the facts.

They haven't investigated the Hush Money case

like I have for almost a year in impeachment.

They haven't sat with Michael Cohen again and again

with his story never changing.

And, you know, some of them have not been practitioners.

I've done these cases for 30 years, including in New York.

So I did them all over the country.

So these kinds of criminal cases.

So for all those reasons, I respectfully disagree,

but I love the debate. Bring it on.

And, you know, I linked to some of their arguments,

many of their arguments, all of the main arguments

that were out there in my writings

and then attempted to respond to them.

Great. Norman Eisen, thank you very much.

And we'll soon find out who's right, Derek.

Thank you very much.

That was Norman Eisen.

And next up, we have politics reporter at SEMA4, Dave Weigel.

Dave Weigel, SEMA4, welcome to the show.

Good to be here. Thank you.

So first off, I just want your reaction

to a historic day in American history, the Trump indictment.

What did you see? What did you read that surprised you?

What were your big takeaways?

Oh, it's hard to have a surprise today,

because I think there have been, like,

Star Wars movies analyzed from fewer angles

that this indictment was, that this moment in New York was.

I guess I got some amusement from George Santo showing up

and then saying it was a media circus,

which I think is the only climate he ever moves in.

But no, what was new was the indictment itself,

and I feel that it was validating for people who have worried

that while there are several ongoing investigations

which could lead to criminal charges against Trump,

this remains the one that is very hard to nail somebody for,

for several reasons.

Yes, there's 34 counts of falsifying business records.

There's Trump really guilty, but there's not really a denial

of Michael Cohen paying off Stormy Daniels

for the 2016 election.

I feel that every time that's in the news,

it is generally bad for Trump and not good for him.

But as a case that might, that might nail him,

and we now know there's not much more to the indictment than this,

and we know that unless it's pushed,

there should probably be an effort to.

Trump is not back in court until December,

so there's going to be a whole campaign primary season

where this is hanging over Trump and they're trying to dismiss it.

Yeah, but that's what I, that's what I figured out.

The rest of the media circus around this was

was not new.

And some of the hyperventilating about how,

I'm not accusing you of hyperventilating.

I mean, it is unprecedented for this to happen to a former president,

but it's not unprecedented to happen to a politician.

Like there have been crazier things.

I've seen ex-governors and ex-members of Congress

accused of and go to trial for.

So that part of it, I feel like I'm missing like whatever,

whatever is in people's brains that makes them

rip their garments and disbelieve that this could happen to a president.

I think, oh, I don't know.

Sometimes politicians commit crimes.

What do you got to do?

Trump is next due in court in December.

That is so far from now.

That is the middle of the primary season.

I mean, so much can happen between here and then.

He could be indicted for one, two, three more crimes.

How meaningful is it to you that the next time that he's due in court,

is there going to be an entirely new reality in politics?

Well, we had a dry run for this,

which was the impeachment in 2019, rolling over in 2020.

What it does among Republicans,

this is much more tense than his president,

is say, we don't buy it.

This is our icon, our hero, our Caesar.

We're not going to, and I'm using the word Caesar

because I've read columns of comparison,

we're not going to let these investigations

stop him from staying president or becoming president again.

That's the Republican response.

I think in the Republican primary field,

the response to this has been to criticize the investigation

and not talk about the contents

and try to move the conversation to something else.

It is, if you've been watching Trump navigate

the Republican Party for the last eight years

and you wonder, are they ever going to get better?

They're not going to get better at this.

They have no strategy.

They hope that maybe Republican voters

are convinced that he can't win again

because he's so under duress.

But that's not what they're saying.

They're kind of validating this idea

that Trump is only being investigated

and only being charged because he is the essential man

who's going to take back America.

And the attitude, I guess I would describe as,

if any other Republican nominee

would be less legitimate at this point,

just because they would have benefited

from political prosecution.

Nobody's really contradicting that in this race.

The exception of Asa Hutchinson,

the former governor of Arkansas,

he's the one Republican running for president.

He's at between 0 and 1% in polls,

which I don't need to dismiss him as a person.

He just, he is.

He said that Trump should be disqualified from running

based on this.

That is something that most Americans,

according to the CNN poll,

60% of Americans agree with.

Trump should be disqualified, shouldn't be running again.

Whether they're running for president,

they host TV shows, they write books, they write columns.

Their attitude generally is,

yes, this is a,

they handle it basically the way that

very different circumstance,

but the prosecutions

of Dilma Rousseff and Lula in Brazil were handled.

I don't want to get into the weeds there.

Not the same thing,

but within

Lula's political alliance

on the left, Rousseff's allies,

the thought was

they're doing this disqualified

as person from becoming president.

There is no legitimacy.

But look at Lula, he was very popular president

who won 60% of the vote

in his first two wins

and won 452% last time.

It hurt him.

It hurt him to be seen as

legally exposed.

This is what I wanted to get at, because I do feel like

the conventional wisdom that is solidifying

right now is that this

is good for Trump

primaries, and it is bad for him

in the general election.

And that is because a gap has opened up

between the ideology

of Republican supporters

who are very firmly in his camp

and the ideology, or at least the

attitude toward Trump

of the great American

middle.

Whenever there's like

a conventional wisdom that becomes really, really

conventional, there's always a little bit of me

that's like, should we double check that?

Should we sure it's true now that everyone

is saying it?

I'm not entirely sure that I can think of a reason

why this conventional wisdom is wrong, though.

Do you have any pushback

to this general idea

that Trump will be

tailwinded

by this indictment in the next nine months,

but that once he, if he does

win the nomination,

it will have soured a lot of

independence and moderates against him.

Yeah.

I'm glad you keep delineating who is talking

about this, because

in Republican circles that

don't know what to do with Trump,

they say one thing that I think

sometimes they believe, sometimes they are trying

to convince themselves of.

I went back

to 2016, there are things

Donald Trump was accused of that were going to be legal problems for him.

Stormy Daniels, he paid to cover up.

But we knew that

Trump University was a legal

problem, the fraud committed

by Trump University.

Hitler couldn't ran against it.

Republicans worried that it was real

and that it would hurt him and he might lose the election.

And then once he won the election, they said,

well, okay, you can't actually,

you can't touch him anymore. He's the president.

Same thing with the documents

they took from Mar-a-Lago. Most voters think

that was bad.

The biggest issue in the

planet for them, they most disagree

with Trump taking these documents from Mar-a-Lago

when they first heard about it.

In Republican circles, it was

backfilling.

Well, actually, if the president

takes anything, he's disclassified

by his person.

It gets very weedy and

I think tedious if you're not super into this.

The constant defense of

Donald Trump.

And you need to do it in the Republican Party because

if he remembers, Republican

voters, I think more importantly remember

if you don't stand up for Trump in real

time, or if it sounds like you're

validating a criticism of him, you get

punished for it. They are not out of

this trap and you could go

down the list of Republicans, not just to vote for impeach

Trump, but I covered lots of Republicans

in primaries who, let's say, during the

Access Hollywood tape said he shouldn't have

said that.

And then four years later, the fact

they criticized Trump was used against them, they lost

a primary. That's, it's a very self-preservation

focused

instinct going on for Republicans and it

is not coterminous with

what the rest of the electorate thinks. That

remains their problem. It just,

the one other thing I'd add is that Republicans

at

35%,

maybe at this point

two-thirds of Republican voters

do believe that the election

was stolen, that Trump actually won it. That's been

declining over time. But

most Republicans believe that, well it follows

if you think that Donald Trump won the last

election, you don't get into questions

like, is he unpopular?

Are there people who don't like him?

Is, does he need

to change what he's doing to win? Does he

need to run on this popular position instead

of that unpopular position? You don't even have

the conversation. You're like, well no, he like, really want.

So we need to run Trump again

but control the electoral system.

And I even saw today, I mean,

this, I was writing, as Wisconsin last week

ran about the Supreme Court race, Charlie

Kirk, very influential, because sort of

leads to turning point USA, you know,

says matter of factly to his audience, well this makes

it harder to win Wisconsin 2024.

Well, why would it?

Wisconsin's close, there's going to be an election

2024, Democrats are going to spend a lot of

money, Republicans are going to spend a lot of money.

What they're saying is, well we all know that

Trump probably won the state last time,

which he didn't.

Trump probably won and he only lost it because of

this chicanery with absentee ballots

and they're going to make it harder.

What they're thinking of is, for example,

the conservative Supreme Court in Wisconsin

after 2020 said, hey

by our interpretation of the law, you can't have

drop boxes. The new liberal court

might say, actually you can. And if your belief

is, well Donald Trump won that election,

but he was stolen from him because of drop boxes,

then sure, you're going to say,

dang, the drop boxes are back, we can't win.

None of that is policy, none of

that is about what you run on, none of that is the image

you present to the voter, and there are lots of them

who liked

Trump the second time. I mean, there were millions

more voters who didn't vote for him the first time,

voted for him the second time. They don't care.

They don't want this stuff. This is not

what they're voted for or for.

They're compelled, like, oh, maybe he was

better at handling inflation. Maybe he was,

but we were safer

in Russia debating anybody.

You're not even having the conversation, just like, he did

everything right, do it again,

control the courts, that's the one.

And that's the dominant attitude in the party

that, again, I mentioned one Republican

who disagrees and he's polling

between 0 and 1%. Exactly.

I mean, it's so interesting because Donald Trump

has this reputation of Teflon Don

and, you know, nothing gets to him and the Democrats

keep shooting arrows and it keeps bouncing off

of his exoskeleton. But in a larger

sense, Donald Trump is not popular.

This is a guy who lost the popular

vote in 2016. I'm not saying he lost

the election in a legal sense. He lost the popular

vote in 2018. They lost

the midterms in 2020. He lost

the election in 2022. A lot

of his preferred candidates lost races

that Republicans, moderate Republicans, think

they should have won.

Inditing Donald Trump is popular

if you poll it and even half of Republicans

I think I'm getting this from your own reporting

say that paying to squash

the Stormy Daniels story before the

2016 election was unethical.

Half of Republicans think that the underlying

facts in this case,

whether or not you agree with Alvin

Bragg bringing the indictment, they think

the underlying facts speak to an ethical

behavior on the part of Trump.

He's not popular in any

majoritarian sense. This gets

to

New Hampshire poll that just came out,

which has Trump with 44% of the vote.

The rest of the field is splitting

the other 56% of the vote with

I think DeSantis around like 29%.

It seems to me

we are headed for

an absolute potential sequel

of 2016 where Trump has

under 50% support of the Republican Party

but the never Trump

contingent splits the vote

all the way to Super Tuesday and we

end up with Trump being

nominated. How realistic

does never Trump

colon 2 the sequel

seem to you at this point?

You mean never Trump

but that fails. I feel like

that's very likely.

One,

the gas in the tank of

never Trump in 2016 was the idea that

Donald Trump could not win.

What really hurt them was that Trump's

strongest competition once

Rubio melted down with Ted Cruz.

I do think

it's funny that Chris Christie's back

campaigning against Trump

had Chris Christie just laid off

Rubio in a debate

in New Hampshire. It's possible that

it gets down to a Rubio versus Trump race.

Rubio is weak in a lot of ways as a candidate

but who knows.

But that's gone. The idea

that he cannot win

is

not

in the Republican party right now.

A good example is that

Nikki Haley is running for president against

Trump, wants to be the nominee, not him.

Whatever one thinks about her running for VP

which I don't know

but it's possible.

But

the way she puts it is that we have lost the popular vote

in seven of the last eight elections.

That is true.

You could also say

we lost the last election.

Chris

Sununu will say we lost the last three elections.

That gets a little further.

Trump lost. We lost the midterm.

We lost 2022 effectively.

He's not running yet.

But when he

is poll and there's a New Hampshire poll this week

the governor of New Hampshire who wins

landslide reelection, less and less

but he's been winning reelections

for four years, for terms

I should say.

He is at 14% and Trump is way ahead.

So

I feel that

it's less what is going to happen to Trump

legally. What are Trump's ethics

for most Republican voters? The thought is well we know

that already and

not just

we think that

we're okay with him being

morally

compromised

but we now think, I'm speaking as the

voice of the Republican voter, we now think

that when he is attached for something

it is because he's so effective.

It is that because they know

he's going to take the presidency if they don't

try to drag him down. That is not

what Democrats will tell you.

You can polygraph them. They honestly think Trump

is a weaker nominee than

Nikki Haley.

I'll talk on and off the record

about this. Like boy

we hope it's not Mike Pence. We hope it's not

Nikki Haley. We hope it is somebody who's so unpopular

that most voters say I can't possibly

vote for him. That's not Republicans

think. They don't talk to Democrats.

They don't think that's true.

They think everything Trump

absorbs is because Democrats

are so worried about him that they want him to go.

And so you can get into the nitty gritty

of all these cases and they're just going to

say like well you're only doing that because

you're trying to sack our quarterback.

That is the attitude.

It does seem possible to me and maybe

I'm just recapitulating what you said at the

top of the interview that this

indictment is much more historic

than it is important.

Trump is the favorite

to win the Republican nomination

and he will remain the favorite

really whether or not he is

indicted. He is

after he wins say above

50% chance of winning the Republican nomination

going to be in a really tough

race against an incumbent president

the contours of which

will be shaped by a bunch of things that you and I can't

really predict. Maybe we have a recession

in 2024. Maybe there's an invasion

where of Iran

or something or in Iran evanes a neighbor

like just some craziness out of the Middle East

that can't even possibly predicted.

But we simply enter sort of the jambalaya

of 2024 politics that are difficult

to predict

and that fundamentally

the indictment while it is

enormous news doesn't actually change

the contours of

the election

that much.

Is there something to that?

The essential fact about Biden is that he is

very old. He's in his 80s

he benefits when he's

not making news.

I saw some people

attacking New York Times today as they do

for to say

it's a problem. The White House is trying to get his message

out there and we're talking about Trump instead.

It's like well it's not really

a problem for them. When people are not

thinking that much about Joe Biden

Biden does not

suffer. The idea that

we need to have the president

fixed in your mind you're not going to vote for him

I think is based on nothing.

Well I think it's based on media

self reflection.

Might it be true for the primary in a way that it isn't for the general?

I don't know this is the perfect

contrast to draw. It does seem like Trump's ability

to get and hold attention

is useful as a weapon

against Ron DeSantis specifically.

But it's not necessarily useful as a weapon

against Joe Biden specifically.

Yes.

That's a very good way of putting it.

I think it hurts him.

It overall

hurts the GOP

and helps Joe Biden when

the conversation is what Trump wants it to be about.

An example I think

about a lot is that

Trump's administration

had anti-trans policies.

It opposed critical race theory. It opposed the

1619 project. It did so.

Memo's from the White House. Trump would criticize it.

But when Trump was doing it

20% of the country said

I don't like this guy, I don't care.

Trump was gone and then in 2021

there were these elections in Virginia and Republicans were like

what we really need to do is get rid of the 1619 project

and these like

gender stuff in the schools.

And without the face of Trump

it kind of sold. It got over.

A lot of voters said I don't like that.

I'm a Democrat but that sounds bad to me.

When Trump reappears

the funnel

that he builds around himself to get the attention

that he has.

I'm blanking on

the exact political scientist.

As we're climbing New Yorker

we're going to do a summary of it.

Political science is pretty clear.

When a president

even if he's popular

starts talking about something it now polarizes.

Only the partisans agree with the president.

When he's an unpopular president, unpopular figure

it polarizes and most people are like I don't agree with that.

I feel like it very clearly

like we had in 2022 where Republicans running

Trump was back and Trump was campaigning

everywhere and Trump was

turning rallies into rambling about 2020

and people said I don't like that guy

and they voted for Democrats.

That's so weird about the last

two years.

The disbelief that 2020 was real

and that the polls are real

has persisted

even after the midterm which showed

actually the polls are pretty right.

And there was a month

I would say

in the R&C meeting

and the Republican Governor's Association

Republican Jewish Association

there was this kind of perestroika

of Republicans saying hey

whatever you think of this guy you can't win

we need somebody electable

and then that faded because we got further from the midterms

and Republicans were like I don't know

that was a flukey election

we know that Trump can win. Let's go back to him.

My last question for you is

I wrote down a note as you were talking

where I said the GOP primary

doesn't have a media primary

while the general election is more

of a fundamentals election.

I'm not saying fundamentals don't matter in the GOP primary

I'm not saying that media doesn't matter

in the general

but it seems to me

that there's something about attention politics

that is more important

for Republicans in their own primaries

and it makes me wonder

maybe a perfect person to ask this question to

because I've sort of been circling this point

especially in talking to some friends on Twitter

and talking to them on Twitter makes the following question ironic

does the GOP have like a touch grass problem?

Like DeSantis

talks so much about

wokeness and Trump in his speech last night

was talking about all of these

issues that were an extremely

online interpretation

of the indictment

and a lot of people were saying I don't even know

how people who aren't constantly

all over the subreddits

and the truth social posts would even understand

half the things that Trump is talking about

like maybe

I guess there's two questions here one is

do you agree with this premise that Republicans

have this two online

problem and two

if you do agree with the premise

where does it come from?

Well

I generally think I agree

the roots are very long

the

Nixon's

concept of the silent majority is now

54 years old

but at the same time Nixon was talking about

that and saying there's an East Coast elite media

that doesn't understand the rage of

the actual working American

there was an effort to build up

a more conservative alternative media

I think that has

succeeded through the dreams of everyone

who thought about it 50 years ago

if I'm a Republican

voter right now and I talked a lot of voters

of both parties

they're independents but I talked about Republican voters

I'll ask them sometimes

what do you

really get your information I'm not demanding they read

my stuff where you get it

and they have tuned out for years

CNN, New York Times, AP

they listen to

I mentioned Charlie Kirk

they listen to Ben Shapiro

they listen to Joe Rogan to some extent

and I honestly think

it's good to have a diverse media diet

I'm not allergic to listening to anything like that

but I do think

it has led to

you mentioned touch and grasp

it happens pretty frequently like Republicans

are bringing up a concept and I've heard about it

because I've listened to Charlie Kirk and then

I ask anyone in like my newsroom

or like that other person who's

paying attention to politics do you know what that means

they don't know it is so obscure they don't know

this happens on the left

but the

media infrastructure

people have tried to start

a left-wing media company that you need

instead of

you can read that or listen to that

instead of watching CNN it doesn't work

like there still is a

connective tissue between

Democrats, Liberals and

the establishment media

I saw it when I was at the post during the Trump

years like people subscribed more and they loved it

they would thank it for what it was doing

and it is still

for most people

I think information is getting more and more atomized all the time

but for most people like was it on the TV news

that night is more

like a

thing that happened

you get fewer

code words you're less aware of certain scandals

it takes I mean you saw this I mentioned CRT

and stuff that Trump talked

about in 2020 it took like

a year for people

for that to get enough into the mainstream

conversation through conservatives

pushing it

that there was a political constituency

to stop

to take some race lessons out of school etc

but it was very confusing to people for a very long time

I mean you saw this with

the groomer branding Republicans used

for gender issues

that sort of sounds weird to a lot of people

and the idea is yes

but if they unplug from

the you know

coma inducing mainstream media

and they see what's really going on well it's like

most people are not going to do that

not because they are ideologically attuned

but because they're busy and they don't care

like it needs to rise the level of

why is this thing so bad and that's why I think

although it may be fading now

like Democrats saying things like we should

defund police departments

and put more resources into

into social welfare

that didn't really click until like crime went up

and people said well I remember Democrats saying that

but it took a lot they didn't care

that Democrats did like land acknowledgments

which they also do which I think conservatives

also find very silly and annoying they don't care

this is like

the world people operate in

they mostly would like politics

to leave them alone and they get angry when it's not

either because the government service

is failing or because something stupid

is happening but they generally don't care

and I think you're right Republicans

Republicans

at this point are so

invested in alternative media

that is trying to change the narrative that they often

just they're three weeks

they're a year ahead of something

that most people don't care about I think that keeps

happening

and I think

there's also some

denial this Wisconsin election

last night their Democrats said from the outset

hey we're going to run on

we'll keep abortion legal

and we're going to

you know we believe in democracies

we're going to revisit these maps and these voting rules

and Republicans had a couple messages

but they never came up with a great response

the abortion one they just said like well that's

that's a partisan distraction

they had a lot of advertising about

just the importance of a

nonpartisan

unbiased court a judge that they just

came up with some stuff that just was a little

too Mark Levin like a little too

conservative that didn't make

didn't appeal to somebody who says you know what

actually I'm kind of worried that abortion might be banned in

Wisconsin they never had an answer to that

because they didn't think they needed one it turned out they did

like they can like

lots of Republicans can win elections in safer states without

doing any of this stuff but I feel like that too

I said the final thing

there are other points I'd make is that like

a lot of states there are no competitive

politics anymore

if you're in Missouri you have a super majority

if you were in Alabama you have a super majority

and things can

rock it through there

with no political consequence to their Republican

party whatsoever I do think then when you

gear up to like campaign in Wisconsin

you don't have the hell we were talking about

because like

it's a different set of issues the different set of concerns

and there are political consequences you can like

lose an election if you go too far right

the big irony to me

from a demographic standpoint

is that for a long time we've been talking

about how millennials

Gen Z leans left

and you'd think in terms of news

diet that this is the demographic

that would more likely rely

on rabbit holes

of the internet to get their news from

but it turns out that the most

rabbit hole

contingency in American politics

is the right

and I know that some listeners who are more conservative

are going to say no that's not true the left has its own

extremely online weirdness of course they do

but look at the president

look at president Joe Biden

is there anything extremely

online about this guy

I mean can you imagine Joe Biden doing like a

land acknowledgement

this is not

an internet poisoned mind

this is someone who I think one of the benefits

of the administration frankly

they seem to be almost optimally

online they seem to have an awareness

of a lot of online discussions but they

don't fall into these rabbit holes

that prey on this

majority illusion that lots of people fall

prey to online where they say

I got 10,000 retweets

for this message therefore

it is broadly popular from a majoritarian

standpoint in the electorate that is an illusion

it is a delusion that I think has gotten

a lot of a certain parts of

certainly the left but specifically the right

in this conversation

caught into thinking that certain

positions are significantly more

popular than they are. Dave I know that

we promised you that you could run at

130 Steve if you can make a phone call

go make that phone call thank you so much

for talking to us and we'll have you

back soon. Okay well thank you very much

bye. Thank you

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Machine-generated transcript that may contain inaccuracies.