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Episode Summary: “This is The Big One”: The Third Trump Indictment

Date: August 5, 2023
Panelists: Susan B. Glasser (host), Evan Osnos, Jane Mayer

Episode Overview

This episode focuses on the third and most grave federal indictment of Donald Trump, issued for his efforts to overturn the 2020 presidential election and remain in power. The panel—Susan B. Glasser, Evan Osnos, and Jane Mayer—unpacks the indictment’s narrative, explores key legal strategies and implications, discusses what’s new in the court filings, and reflects on the unprecedented intersection of legal, political, and institutional crises facing the country.

Key Discussion Points

1. Understanding the Indictment: What Makes This "The Big One"?

• The episode underscores the historic seriousness and scope of the indictment, marking it as the first to address the core of Trump’s post-election conduct (03:10).
• The hosts quote directly from the indictment’s preamble to illustrate its bluntness:

  “The defendant spread lies. These claims were false, and the defendant knew that they were false. But the defendant repeated and widely disseminated them anyway…”
  —Susan Glasser reading the indictment (03:45)

The Four Charges (04:48)

• Conspiracy to defraud the United States: Effort to overturn election results by pressuring officials, especially VP Pence.
• Two counts of obstructing an official proceeding: Tied to efforts around the January 6 vote certification.
• Conspiracy to violate civil rights: Originally a Civil War-era statute, now applied to allegations that Trump’s actions sought to “create a false result in the election” and thus disenfranchise voters.
• Potential prison terms: Each count carries 5–20 years; Judge Tanya Chutkin has a record of imposing prison sentences in Jan. 6-related cases.

“What we have is this extraordinary narrative... It’s a narrative document that describes what happened over the course of this period, which is, of course, a conspiracy.”
—Evan Osnos (04:48)

2. What’s New and Chilling in the Filing?

• Exposing Planning for Potential Violence:
  Dialogue reveals top Trump allies discussed the Insurrection Act, anticipating that staying in power could provoke riots:

  “There are going to be riots in every major city in America.”
  — Deputy WH Counsel to Jeffrey Clark
  “Well, that’s what the Insurrection Act is for.”
  —Jeffrey Clark’s alleged response (07:48)

• Discussion of Martial Law: The panel revisits a five-hour Oval Office meeting in December 2020 where Trump and advisors openly considered declaring martial law and seizing voting machines.
• Trump’s Private Acknowledgment of Defeat: Multiple instances show Trump admitted he’d lost, but still pursued the conspiracy.

  “I can’t believe I lost to this guy.”
  —Trump to aides, referenced by Evan Osnos (11:32)

• The “Fake Electors” Plot:
  The indictment connects Trump to a multi-state scheme with forged electoral vote certificates—actions far beyond “free speech."

3. The Six Unindicted Co-Conspirators

• Identifications (13:34):
  1. Rudolph Giuliani – “Appropriate, right, that he gets the top billing?” (13:39)
  2. John Eastman – Credentialed attorney, architect of radical legal theories at Claremont Institute.
  3. Sidney Powell – Called a “crackpot lawyer” in the indictment itself.
  4. Jeffrey Clark – DOJ official, advocate for the Insurrection Act strategy.
  5. Kenneth Chesebro – Appellate lawyer, devised the fake electors scheme.
  6. Mystery Operative – Likely Boris Epshteyn or Mike Roman, both Trump campaign political operatives (19:09).

“Fake elector scheme was so crazy that it was literally, in some cases, people printing up election certificates on their home printers and purporting to be electors.”
—Evan Osnos (15:49)

4. The Prosecutor’s Strategy and What’s at Stake

• Why Name Unindicted Co-Conspirators?
  The panel discusses how this applies pressure for cooperation, and allows the prosecution to avoid delays from multi-defendant cases (20:14).

• Jack Smith’s Approach:
  Described as “solemn” and “terse,” with a reputation for being tough, sometimes to a fault.

  “Personally, I would be terrified to be prosecuted by him.”
  —Jane Mayer (21:31)

• Why Not Charge with Incitement?
  Smith chose charges that were more legally airtight—obstruction, conspiracy—skipping the tougher incitement-to-insurrection charge to avoid First Amendment issues (23:13).

5. Trump’s Public and Legal Defense

• Political Strategy:
  Trump invokes the specter of Nazi Germany, positions himself as a victim, and projects “weaponization of the DOJ,” which in fact was his own tactic (26:48).
• Legal Strategy:
  The dual prongs:
  1. Free Speech: Asserts he was exercising First Amendment rights.
  2. Advice of Counsel: Will claim he acted on lawyers’ advice (Eastman, Powell, Giuliani).

“He is always aiming to litigate this in public, on television... but finally, at a certain point, he’s gonna have to amount an actual legal defense in the courtroom.”
—Susan Glasser (28:18)

6. The Elephant in the Room: The Political Calendar

• Delays and the 2024 Election:
  Trump’s legal team aims to delay trial beyond the election. If he wins, he could use executive power to halt federal cases (33:35).
• Multiple Cases Colliding:
  Trump is facing parallel timelines for the New York business records case, the Stormy Daniels case, E. Jean Carroll’s defamation suit, and possible charges from Georgia.
• Absurd Logistics:
  Trump could be the Republican nominee shuttling between rallies and court dates.
• Unprecedented Scenarios:
  If he becomes president again, he could order the DOJ to drop cases; if convicted by a state case, incarceration would pose constitutional crises.

“There is a scenario evolving where this guy is shuttling back and forth from Iowa to other primary... and then eventually appearing in his courtroom appearances along the way. It’s bizarre.”
—Evan Osnos (33:35)

7. Constitutional Science Fiction: The Uncharted Path Ahead

• What if Trump is Detained?
  Judge Tanya Chutkan warned that violating release terms could lead to pretrial detention—even for a former president (36:00).
• Panel's Tone:
  Balances "constitutional sci-fi" speculation with reminders of unprecedented territory for American democracy (37:41).

8. Reflections on Rule of Law and National Reckoning

• Is This a Tragedy or a Step Forward?

  • Jane Mayer: “I actually feel that in many ways it’s a positive step to see some accountability… is there going to be some kind of penalty? And I think it’s a step in the right direction that there is this process.” (39:35)
  • Evan Osnos echoes cautious optimism:

    “What separates a country that can gather itself and recover… is the very painful but real process of seeing this man treated ultimately like a regular citizen.” (42:18)

• But Deep Partisan Divides Remain:
  Republican belief in the “stolen election” myth is as high as ever; influential conservative figures invoke the language of “war crimes” about the indictment.

  “There’s a very, very vast gulf between political war crime and historic moment of accountability and victory for the rule of law. And I’m not sure that’s a gap we can bridge very easily.”
  —Susan Glasser (42:46)

• Final Note:
  Despite the somber context, the panel expresses gratitude for witnessing and analyzing these pivotal moments together.

Notable Quotes & Moments with Timestamps

• “The defendant spread lies. These claims were false, and the defendant knew that they were false.”
  —Susan Glasser quoting the indictment (03:45)

• “They are anticipating a civil war… talking about using troops to support an illusion legal coup.”
  —Jane Mayer on Jeffrey Clark and Trump’s advisors (07:48)

• “I can’t believe I lost to this guy.”
  —Trump to his communications director (11:32)

• “Fake elector scheme was so crazy that it was literally… people printing up election certificates on their home printers and purporting to be electors.”
  —Evan Osnos (15:49)

• “Personally, I would be terrified to be prosecuted by him [Jack Smith].”
  —Jane Mayer (21:31)

• “It’s bizarre... There is a scenario evolving where this guy is shuttling back and forth from Iowa to other primary states and… courtroom appearances along the way.”
  —Evan Osnos (33:35)

• “What separates a country that can gather itself and recover… is the very painful but real process of seeing this man treated ultimately like a regular citizen.”
  —Evan Osnos (42:18)

Important Timestamps

• 03:10 – Announcement of the latest indictment; Susan Glasser reads key language from the filing
• 04:48 – Evan Osnos summarizes the four central charges
• 07:48 – Jane Mayer highlights Jeffrey Clark using the Insurrection Act as a contingency
• 11:32 – Trump’s private admissions he lost the election
• 13:34 – Identification and description of the six unindicted co-conspirators
• 15:49 – The fake electors plot explained
• 21:31 – Discussion of Jack Smith’s prosecutorial reputation
• 23:13 – Why the indictment does not include incitement to insurrection
• 26:48 – Trump’s public defense: Nazi analogies and victimhood
• 28:54 – The essence of Trump’s likely legal defenses
• 33:35 – Analysis of how the political calendar and legal delays collide
• 36:00 – The prospect (however unlikely) of Trump’s pre-trial detention
• 39:35 – Reflections on accountability and the rule of law
• 42:18 – The hope for constitutional resilience amidst partisan disarray

Tone and Language

Throughout, the tone mirrors The New Yorker’s: sober, analytical, sometimes wry, and appropriately awed by the scope of events. The panel’s language is precise but conversational, punctuated with incredulity at the "constitutional science fiction" now playing out in American life.

Summary by section for clarity and reference. Perfect for those who need a thorough understanding of the episode’s discussion without listening.