The Bulwark Podcast: Season 2, Episode 1023 – Ben Wittes: "Sorry, We Still Have Due Process"

Release Date: April 17, 2025

Introduction

In this compelling episode of The Bulwark Podcast, host Tim Miller engages in a profound conversation with guest Ben Wittes, the Editor in Chief of Lawfare, Senior Fellow in Governance Studies at the Brookings Institution, and author of Doge Shirt Daily on Substack. The discussion traverses pivotal topics surrounding due process, governmental overreach, and international affairs, particularly focusing on recent legal battles and geopolitical tensions.

Key Discussions

1. The Abrego Garcia Case and Due Process

The episode opens with an in-depth analysis of Judge Boasberg’s ruling concerning the Abrego Garcia case, where over 260 Venezuelans were deported to El Salvador despite a court order to turn back their planes.

Ben Wittes explains the legal intricacies:
"Judge Boasberg issued a 46-page opinion affirming that the government's failure to comply with his order constitutes probable cause of intentional defiance. The government now faces a choice to remediate by complying or identify the individual responsible for contempt." ([02:31] - [06:20])

Tim Miller highlights the public discourse challenges:
"Focusing on an individual like Abrego Garcia humanizes the issue, making it more relatable than discussing the mass deportations in abstract." ([07:37] - [09:04])

The conversation underscores the tension between legal precision and public understanding, emphasizing the need to balance detailed legal analysis with broader narrative storytelling to engage the public effectively.

2. Government Accountability and Legal Implications

As the discussion delves deeper, Wittes critiques the government's approach:
"The administration's appeal of Judge Boasberg's ruling demonstrates a reluctance to adhere to court orders, potentially escalating into a deeper constitutional crisis." ([12:42] - [16:45])

They debate the ramifications of executive actions that bypass due process, with Wittes asserting that such moves not only undermine legal frameworks but also erode public trust in governmental institutions.

3. Media Representation and Personalization of Legal Cases

Wittes and Miller explore how media framing affects public perception. Wittes points out the historical precedent of charismatic yet morally reprehensible figures:
"Just as Hitler was charming in personal interactions, Vladimir Putin's affability doesn't negate his destructive actions. Highlighting personal traits can mislead public perception about the severity of their actions." ([30:02] - [35:39])

Tim Miller draws parallels to The Sopranos, illustrating how individuals can embody both likable and malicious traits, complicating public judgments.

4. The Situation in Ukraine and International Relations

Shifting focus to international affairs, Wittes discusses the complexity of the Russia-Ukraine conflict and the challenges in maintaining a unified Western response. They emphasize the misalignment between U.S. domestic narratives and Ukrainian realities:
"Ukrainians not deeply engaged with American political conspiracies can't intuitively grasp why their adversaries are influenced by misinformation." ([39:25] - [43:05])

The dialogue highlights the importance of clear communication and consistent support for Ukraine amidst internal U.S. political distractions.

5. Chris Krebs and Executive Overreach

A significant portion of the conversation addresses Chris Krebs, former DHS official known for securing the 2020 elections, who faced an executive order targeting his position after he publicly affirmed election integrity.

Wittes condemns the action:
"This executive order is tantamount to a bill of attainder, an unconstitutional move where the president singles out an individual for punishment without due process." ([47:15] - [49:38])

Miller echoes the sentiment, stressing the unprecedented nature of such presidential overreach:
"If any other president had taken this action, it would be front-page news globally. The lack of coverage underscores the alarming normalization of executive overreach." ([49:39] - [53:07])

The discussion underscores the critical need to safeguard institutional integrity against executive abuses, advocating for legal reforms and societal support for whistleblowers and honest officials.

Notable Quotes

• Ben Wittes ([16:43]):

  "The Supreme Court said two things. One is that you cannot deport people under the Alien Enemies Act without reasonable notice to them and an opportunity for them to challenge their designations in habeas proceedings."

• Tim Miller ([25:08]):

  "The president of the United States is an adjudicated sexual assault committer. So we could send him to Seeck, which people might have mixed views on."

• Ben Wittes ([30:02]):

  "This is a deeply, deeply evil, you know, this is somebody who has had a terrible, terrible impact on his own country, on a lot of the surrounding countries, on the United States."

• Tim Miller ([32:13]):

  "Tony Soprano is a charming character. You might want to go to the Bada Bing and have a whiskey with him and hang out. He'd tell some funny jokes, he would make you laugh."

• Ben Wittes ([49:39]):

  "The Constitution has a very specific provision barring what are called bills of attainder. You can't legislatively declare Ben Wittes or Tim Miller a criminal."

Conclusions and Insights

Throughout the episode, Wittes and Miller offer a critical examination of the erosion of due process and the dangers of executive overreach in modern governance. They advocate for:

• Maintaining Institutional Integrity: Upholding legal standards and resisting pressures to bypass due process is essential for preserving democracy.

• Effective Media Framing: Balancing complex legal issues with relatable narratives is crucial for public engagement and understanding.

• International Support and Clear Communication: Consistent and clear support for allies, such as Ukraine, is necessary amidst internal political distractions and misinformation.

• Protecting Whistleblowers and Honest Officials: Ensuring legal protections and societal support for individuals like Chris Krebs is vital for maintaining transparency and accountability in government.

The episode serves as a profound reminder of the fragility of democratic institutions and the continuous need for vigilance in protecting due process and accountability.

Final Thoughts

Ben Wittes concludes by highlighting the importance of supporting organizations like Lawfare, which play a crucial role in analyzing and safeguarding governance structures. Tim Miller underscores the podcast's role in navigating the complexities of contemporary politics, providing listeners with insightful analysis and fostering informed discourse.

“You’re absorbing the insanity of the audience and you’re internalizing it all. It’s like the picture of Dorian Gray,” Wittes remarks, illustrating the podcast's impact on both hosts and listeners alike.

Additional Resources

• Lawfare Fundraiser: Support the ongoing work of Lawfare by visiting givebutter.com/Lawfare.

• Ben Wittes’ Substack: Follow Doge Shirt Daily for more insights on governance and national security.

• The Bulwark: Stay updated with daily political analysis and commentary by subscribing to The Bulwark podcast.

Produced by: Katie Cooper
Audio Engineering and Editing: Jason Brown
Podcast Hosts: Tim Miller and Ben Wittes