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Brian Lehrer: It's Notes from America with Kai Wright. Before you reach to check your device, no, this isn't Kai Wright, so you don't need to check your hearing either, it's all right. It's me, Brian Lehrer, host of the The Brian Lehrer Show. Recently, Special Counsel Jack Smith announced the indictment of former President Donald Trump, as you probably know, for conspiring to defraud the United States and disenfranchise voters in the 2020 election.

During that announcement, Smith made a point to encourage everyone to read that indictment in full. On my show, I invited Kai and a few other friends of the show to read the major excerpts in the indictment live on the air. You should check it out, there'd be a link in the description of this episode. The Trump and democracy question is not just for the court, it's also for the political system, obviously.

Trump is allegedly trying to straddle the two by making what appear to be threats against people in the legal system that he's defending as political free speech for him as a candidate. We invited Charlie Sykes, former long-time conservative talk show host, and co-founder of the news organization, The Bulwark, on my show to discuss the breaking news and help take your call. Kai asked that I share that conversation with you all. Here's my conversation with Charlie Sykes, founder and editor-at-large of The Bulwark.

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Brian Lehrer: Brian Lehrer on WNYC. Thanks for your many appreciative comments about Friday's show on which we read out loud most of the Trump January 6th and big lie indictment. So many historians and legal analysts, I don't have to tell you, are calling this one of the most important cases for American democracy in the history of the American legal system.

Later in the day, on Friday, I don't think it was in response to our show, but later in the day after our show on Friday, Trump posted this, which sounds to a lot of people like a threat, "If you go after me, I'm coming after you." He posted those words. "If you go after me, I'm coming after you." He's been told to respond in a court filing by five o'clock this afternoon in regard to that.

Is he trying to, I don't know, activate lone-wolf domestic terrorists to attack prosecutors? Is that an illegal intimidation of prospective jurors? What is that post in a legal context? That story is just beginning to unfold. Then there were the politics that flow from this indictment, obviously. We spent our several segments last week, I'll let you in behind the scenes a little bit on this, we spent our several segments last week consciously avoiding the politics.

Just looking at the details of the indictment first, and the possible defenses, and burdens of proof for the government, we thought that should all come first. This is all happening in the context of a Republican presidential primary where Trump, of course, is a candidate, where the other candidates know that the Republican voting base tends to support Trump regardless of what the law or verdicts may be.

At least one of his competitors, former Vice President Pence might be a witness in the trial. Now, on CBS Face the Nation yesterday, Pence went this far in saying, "Trump's actions after the 2020 election should be disqualified."

Vice President Mike Pence: I truly do believe that no one who ever puts himself over the constitution should ever be president of the United States.

Brian Lehrer: Other candidates are taking their own positions, will play how Ron DeSantis is trying to be on both sides of it coming up, but let's dig in. Our guest this time is Charlie Sykes, former long-time conservative talk show host in Milwaukee. Co-founder of the news organization, The Bulwark, and the author of nine books including explicitly conservative ones earlier in his career with titles like, A Nation of Victims, Dumbing Down Our Kids, and A Nation of Moochers. Similarly, he was co-editor of The National Review, the conservative magazine of The National Review College Guide.

He began to call out Trump, if you don't know Charlie Sykes's story, he began to call out Trump for his anti-democracy campaigning in the 2016 presidential race. Charlie's most recent book is How the Right Lost Its Mind. He's also an MSNBC contributor now and is one of the hosts in the WNYC series, Indivisible, a series that we did when Trump was new in office in 2017. Charlie, always great to talk to you. Welcome back to WNYC.

Charlie Sykes: It is great to be back with you, Brian. Could I submit a question for Dear Prudie, by the way, for later this week?

Brian Lehrer: [laughs] Sure, sure, yes. What would it be? I'm curious.

Charlie Sykes: As long as it's anonymous, it would be, you know I find myself supporting an elderly decompensated criminal who continues to rant and try to intimidate witnesses, insult jurors, and show contempt for the judge. Is there any way out of this relationship? Signed, Republicans. I don't know. It is an extraordinary moment, isn't it?

Brian Lehrer: It absolutely is. Maybe we will put that anonymous question, which certainly did not come from one Charles Sykes to Prudie on Thursday. Before we get to actual political analysis, can you give us a take on Trump's post, "If you go after me, I'm coming after you?" It's threatening, and obnoxious, obviously, but why is it a matter for a court proceeding today, not just for a political response?

Charlie Sykes: First of all, it's Donald Trump once again going full mob boss. It is designed to intimidate, it is designed to threaten. I'm going to be very interested to see what the judge does, because I'm not a lawyer, but I have listened to other legal experts saying that if any other defendant was behaving the way that Donald Trump was behaving, there would be sanctions, up to and possibly including of being jailed for contempt of court.

Now, I don't think that's going to happen in this particular case, but in effect, Donald Trump is daring the judge to do something. It is one of those interesting moments, "What do you do?" Last Thursday, at his arraignment, the magistrate specifically and very pointedly warned him, "Do not attempt to intimidate witnesses, do not attempt to influence jurors," and what does he do? Literally, less than 24 hours after he promised the federal court that he would behave himself, he put out that all-caps threat, so it's going to be very interesting to see how the prosecution, and the judge in this case handles that.

Brian Lehrer: You used the word, daring. I was thinking of the word, baiting. He's almost baiting the judge to silence him in some way that will help him politically.

Charlie Sykes: Feels like that. No, it does feel like that. In fact, I wrote in my newsletter this morning. I said, "Non-snarky question for a Monday morning, does Donald Trump want to go to jail? Does Donald Trump want to be a political martyr in some way? Because otherwise, why would he spend the weekend in a series?" That was just one of the social media bleeds that he put out. He attacked the City of Washington, he attacked the prosecutor as deranged, he attacked the judge saying that he's going to push for her recusal.

This is extraordinary behavior from a criminal defendant, much less a criminal defendant who is facing right now, 78 different felony charges. If he's convicted of all of them and receives the maximum sentence, faces 640 years or more in jail. Brian, most criminal defendants, I'm guessing would listen to their lawyers, or their lawyers hope they listen to them saying, "Keep your head down. Keep your mouth shut. Whatever you do, do not attack the prosecution and the judge in these very, very personal times." Donald Trump is Donald Trump, and he's not going to stop doing this, is he?

Brian Lehrer: It seems to be politically advantageous for him so far. Understanding that you're not a lawyer, do you have a short version of what's supposed to happen by today's five o'clock deadline?

Charlie Sykes: Again, as you said up here, the prosecution filed that extraordinary motion on Friday referencing his threat, his not very veiled threat, "If you go after me, I'm coming after you." Trump's lawyers asked for a postponement. The judge shut them down and said, "No. By five o'clock today, you have to answer this motion asking for a protective order," which should not be confused with a gag order. I've heard people use them interchangeably, they're not the same thing. I expect that we will see this.

What I think is interesting is whether, at some point, the judge is going to invite Donald Trump and his lawyers into her courtroom and say, "I would like you to explain what you meant by these posts." One after another, have Donald Trump or his attorneys, explain why she should not think that they were attempts to intimidate and bully jurors, witnesses, prosecutors, and the judge herself.

Brian Lehrer: Do you know the difference between a gag order and a protective order? I don't.

Charlie Sykes: I think the protective order basically says you're not allowed to disclose certain evidence that is being presented. A gag order would limit his ability to engage in, I think in the more general speech. I think the prosecutor is being very careful because he understands that if it is perceived as a gag order, Donald Trump will come out and say, "Look, I am the first presidential candidate in history whose first Amendment rights have been stepped on by this deranged prosecutor."

I think you're going on a more traditional. I mean protective orders are not unusual in a case like this. It is just basically saying, "Do not disclose sensitive information." That would be, again, decided by the judge in this case.

Brian Lehrer: Right, but sensitive information like grand jury proceeding information, that's supposed to be kept secret, that's different than that implied threat, or it's not even implied, it's stated, "If you're going after me, I'm coming after you."

Charlie Sykes: That's right. One of the things that Trump is trying to confuse is the whole question of free speech versus speech in the furtherance of a crime. All conspiracies, all frauds involve speech, witness intimidation is speech, lying to the FBI is speech. Simply because you say something, does not mean that you are absolutely protected. If you are trying to intimidate or bully witnesses or jurors, which I think Donald Trump is trying to do, that is going to catch the attention of the court because the rules in federal court are quite different than the rules on social media.

Now, again, this is a tough job for the judge because it's like three/four-dimensional chess here. She knows the attacks that are coming, she knows the political implications but I also think she needs to keep in mind that, no other criminal defendant would be able to behave in this particular way and not at least be sternly talked to by the judge.

Brian Lehrer: Listeners, any likely Republican primary voters want to say how you're leaning as of today and how the Trump indictments affect your thinking, or at least are affecting it in these early days after the most serious ones, which came out last Tuesday from special counsel, Jack Smith, the ones about subverting an election, subverting democracy? I think everybody agrees these are the most serious charges that Trump is facing. Are they affecting your thinking at all?

If you are a likely Republican primary voter in any state, 212-433-WNYC, 212-433-9692, or ask Charlie Sykes, the co-founder of the news organization, The Bulwark, a question, 212-433-WNYC, call in or text 212-433-9692, or tweet @BrianLehrer. All right, Charlie, presidential campaign politics. there were some polls taken just before the indictment was handed up by the grand jury last Tuesday, as you know, they found Trump dominating the Republican primary field and neck and neck with Biden in a hypothetical one-on-one matchup.

The previous indictments of Trump, as I was just indicating, serious though they may have been, were not as serious and about existential democracy questions as these charges are on trying to subvert an election. Do you have any indications that this indictment and the incredibly detailed narrative that we aired much of on Friday, including Trump telling Pence, he's too honest, and Giuliani admitting in Arizona that he had theories, but no evidence to flip the election in that state, and almost all of Trump's major appointees documented by Jack Smith telling Trump there's no evidence of election determinative or fraud, any indication, all of that is beginning to move the needle in any way six days later?

Charlie Sykes: Well, I'm trying to break out of the doom loop of the punditry that says that nothing ever matters, because last week did feel that something matters but having said that, look, Brian, you and I have had been having this conversation now for six years, right-

Brian Lehrer: Yes.

Charlie Sykes: -going back to 2017 where the Republican party never breaks with Donald Trump, will always adjust its standards, there may be moments like January 7th when they say, "This is insane. We need to move on," and then they come back. It's always risky and dangerous and probably wrong to say that the patterns of the past will change but to be honest, no one knows the answer to this question because we've never been here. We've never remotely been in a situation where you've had someone like Donald Trump facing this kind of legal challenge behaving in this way.

There was one poll that I saw reference to late last night the Marquette University law poll, which is highly respected. They have a national poll that suggests that despite the conventional wisdom that Donald Trump is not hurt by these indictments, that, in fact, his approval rating among Republicans has dropped by about six points. The disapproval rating is up by six points. Again, this may be temporary.

Also, over the weekend and I'm not overstating this, I'm not trying to be naive about what Republicans do because we know what the pattern is here, but it was interesting watching what Chris Christie, Bill Barr, Mike Pence, and even Ron DeSantis were saying. Now, again, this is way too late and I wish they would've been much stronger. I have used the language to describe Chris Christie and Bill Barr that I could not use on your show because of various FCC regulations but what they're saying is important because these are the voices coming from within the room.

It's not from MSNBC hosts, it's not from The Resistance, not from Occupy Democrats, it is from Republicans, conservative Republicans who are now making the case that what Donald Trump did, even if it didn't violate criminal law, makes him unfit, disqualified to be president of the United States. Now, I don't know if that breaks through, I don't know if that changes the dynamics, it's unlikely, but it's hard for me to imagine, Brian, that this drumbeat is a political asset for Donald Trump. That he's going to be moving any skeptical voters into his column.

Certainly in a general election, I can't see that it helps him with Independents or Democrats or disaffected Republicans but the increased willingness, and again, it's maybe only tentative, and we've seen these guys go back and forth willingness to really go after him is interesting. It might actually penetrate that alternative reality bubble that has done so much to shape our politics, so we'll see.

Brian Lehrer: We played the Mike Pence clip earlier saying, "Nobody who puts themselves above the Constitution should be president of the United States," so that was pretty clear. I said we play a clip showing how DeSantis is trying to play both sides of this to some degree. Here is that clip, it's about 30 seconds. He's responding to a question asked of him at a campaign event on Friday.

Ron DeSantis: The election is what it is. All those theories that were put out did not prove to be true but what I've also said is the way you conduct a good election that people have confidence in, you don't change the rules in the middle of the game, you don't ballot harvest, you don't do Zuckerbucks. Clearly, having the agencies work with Facebook to censor things like Hunter Biden, that's unfair. It was not an election that was conducted the way I think we want to, but that's different than saying Maduro stole votes or something like that. I think those theories proved to be unsubstantiated.

Brian Lehrer: What's your analysis of the position Ron DeSantis is trying to carve out for himself there?

Charlie Sykes: Well, he's on the tightrope, isn't he? I mean he does want it both ways? He doubled down on that in this MSNBC interview with I think, Dasha Burns. She pressed him on the question, "Okay, did Joe Biden win this election?" He says, "Yes. Well, of course, Donald Trump lost the election. Joe Biden is the president." Ron DeSantis should have started with this. Why was Ron DeSantis not saying this six months ago, why was he not saying it 12 months ago or 24 months ago?

His campaign has been floundering, and it's taken him a very, very long time to come to a position that should not be controversial. The fact that it is considered, in some circles, some Republican circles, outrageous, that he's acknowledging that Donald Trump lost the election is a sign of how much that window has been moved. Ron DeSantis, at some level, he's figured out that he actually has to run against Donald Trump but I don't think he's figured out that quite yet.

I think that Ron DeSantis was thinking that he would just be the guy and when somebody else took out Donald Trump, when Donald Trump magically went away, he was taken out by the magical political unicorn that he would be the last man standing. Now I think he's probably belatedly realizing if you want to beat Donald Trump, you actually have to beat Donald Trump, you have to go at Donald Trump. For Ron DeSantis, it might be too late.

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Brian Lehrer: Here is Jeffrey in Manhattan who says he is a likely Republican primary voter.

Jeffrey: Yes.

Brian Lehrer: I knew there was a Republican primary voter somewhere in Manhattan, and I think we found him. Jeffrey, thank you for calling in. Hello.

Jeffrey: Hi. Yes, I am a Republican primary voter, absolutely, as I vote every election, and not going to miss this one, and I am not voting for Mr. Trump, by any means. I think he should give it all up and go play Benito Mussolini on Broadway. He's got the facial gestures now, perfect.

Brian Lehrer: Do you have a candidate?

Jeffrey: No, I don't. I'm examining them all, but it's certainly not going to be [unintelligible 00:20:34].

Brian Lehrer: For our listeners who are thinking, "Oh, this guy's not really a Republican." What makes you a Republican?

Jeffrey: Ah, well, what makes you a Republican? I don't know. It's Nelson Rockefeller, his political viewpoints are stride in his mind. There used to be a lot of Republicans, it's not a dirty word, and in Manhattan it is. People do say to me, "Well, you're not really a Republican. You're like middle of the road." Well, we still have middle-of-the-road Republicans so I don't know. I grew up in Park Slope, so there were a lot of middle-of-the-road Republicans back then in the '60s.

Brian Lehrer: Who would you vote for in the-

Jeffrey: [unintelligible 00:21:17] Mayor John Lindsay.

Brian Lehrer: -2016 Republican presidential primary, if you did?

Jeffrey: I voted for Mr-- That one, I did go Democrat, I voted for Mr. Biden in 2020 and-

Brian Lehrer: 2020.

Jeffrey: -[unintelligible 00:21:29].

Brian Lehrer: I'm saying the Republican primary in 2016, I'm just curious.

Jeffrey: That one, I was still a Democrat voter so I hadn't switched over. I switched over later.

Brian Lehrer: I see. Okay, Jeffrey, thank you very much. I'm pretty confused about where he is, but let's try another one. If we had a real or imagined Manhattan Republican on the line, now we have one from Brooklyn. Matthew in Brooklyn, you're on WNYC. Thank you for calling in.

Matthew: Thanks, Brian. It's good to be here. I've been Republican all my life, well, since I could register, and I'm not going to vote for Donald Trump in the primary. It has nothing to do with the current indictment. In fact, I think the issues in the current indictment were well covered in the second impeachment and in the January 6th investigation. There's much to indict Donald Trump, not in the legal sense, having nothing to do with this. I don't think that this is going to change people's opinion. I think that rump of the Republican Party that supports him is not going to change. The rest of us were well done with him a while ago.

Brian Lehrer: Same two questions I asked the last caller, if you voted in the 2016 Republican presidential primary, who did you vote for then? Do you have a candidate you're keying on now?

Matthew: I honestly don't remember who I voted for in the '16 primarily, although I know it wasn't Donald Trump, because I knew Donald Trump when I was doing real estate in New York in the '80s and '90s, and have hated him or despised him for well longer than most people. In 2020, I voted for Biden. Unfortunately, I had to, and I may have to make that choice again. In the coming primary, I'm looking at, right now, I'm looking at Tim Scott and Chris Christie.

Brian Lehrer: Matthew, thank you very much. Here, I think, is a likely Trump Republican primary voter from Bergen County, you're on WNYC. Thank you for calling in. Hi, there.

Caller 1: Hi.

Brian Lehrer: Hey. You're likely to vote in a Republican primary. New Jersey votes so late, but if it still matters, once it comes around to Jersey, you're still leaning Trump, is that what you told our screener?

Caller 1: Yes, I definitely lean towards Trump. The more indictments and impeachments, and things they throw at him, the more likely I would be to vote for him. I think that the Democrats are using taxpayer money, as, I hate to use his words, but as a witch hunt. They have not stopped attacking him since he took office, he won, and they wouldn't let him win, and they're still persecuting him.

I want to know, what are they afraid of? Are they afraid of him uncovering things that taxpayers shouldn't have to pay for? I just don't understand this pursuit. He's not the nicest person in the world in political terms, but I have a feeling he's a very nice person if you get to know him. I don't know that for a fact, but I think that. I'm an educated person who lives in a kind of an affluent town, not that I'm affluent, in Bergen County, raised five children here. I'm a teacher so I fit some of the demographics of being leaning towards the left, however, I can not.

Brian Lehrer: Let me ask you one follow-up question, and that is if you've read or heard on media coverage, any of the specifics of the January 6th and alleged disenfranchisement indictment that came out last week, like the exchange that he had with Pence, where he told Pence, "You're too honest," when Pence wouldn't go along, or that long list of his own key advisors, his appointees who were telling him after the election, "There is no amount of fraud here that would flip the outcome." Have you seen any of those details or heard about them, and have a reaction?

Caller 1: Yes. Definitely, I've read them, I've heard them, and I know that people have interests. Pence has his own interests now in mind. Of course, he's going to flip. I just really think Trump is not perfect, but he thinks about how to run the country like a business and get things back on track, as things were a lot better when he was in office than this, unfortunately, aging aristocrat who's in office.

Everything that the Democrats do, nothing sticks. The Republicans are under constant scrutiny. They're really the hard-working backbone of this country. I think January 6th had a lot more to do with Democrat manipulation than actually these people who were manipulated to do the things that they supposedly did.

Brian Lehrer: Wait, Biden's--

Caller 1: I'm not--

Brian Lehrer: Let me challenge you on one thing, then I'm going to let you go and I really appreciate your call. Biden, with his background, is an aristocrat more than Trump with his background?

Caller: Yes. Trump, he comes up from hard work in real estate. He's not an aristocrat by any means.

Brian Lehrer: From inheritance, though, right?

Caller 1: Yes, that's what I mean. Biden has seven homes, it's just ridiculous what he has, and he's not really working for the people, he's working for the Democrats. If they were working for the people, a lot more problems in our country would be solved in these past couple of years than what's happening now.

Brian Lehrer: Thank you for your call.

Caller 1: [unintelligible 00:27:34].

Brian Lehrer: I really appreciate it. Feel free to call us again. Charlie, pretty interesting set of callers there.

Charlie Sykes: Yes. I have bad news for the first caller, who describes himself as a Nelson Rockefeller Republican, not many of those left. To the last caller, a couple of things. Number one, regarding Joe Biden as an aristocrat and Donald Trump as a hard-working man of the people, well, that is a take. It's also interesting that, I'm sorry, this is the alternative reality that looks at January 6th and said, "That is the Democrats' fault," after Donald Trump summoned the mob to Washington, DC, said, "Be there. It will be wild," urged the march on the Capitol.

I think this is the political universe that we're in, that people have these completely different takes on all of this. You try to walk through the fact that, how many members of the cabinet, how many members of Trump's inner circle told him he lost the election? You could go further, how many members of the cabinet, how many people who were inside the room, former chiefs of staff were trying to tell the American people, "This guy is not fit for office. This person should not be allowed anywhere near power again." It just doesn't register with some voters and this is the reality.

That last caller is representative of, right now, a strong plurality of the GOP primary base. There's no way around that. I don't know how you break that, or how many facts. Now, will the trial make a difference? The fact that one witness after another, from Trump world, and again, keep in mind that they will be Trump appointees, people who work in the Trump White House, who will testify again, will that make a difference?

Well, nothing has made a difference so far for many Trump supporters who honestly think that Donald Trump, despite his obsessions and his rants, is really deeply and sincerely concerned about solving the problems of the American people, when I think it's pretty clear, as Chris Christie says that Donald Trump is about Donald Trump. If they won't listen to Rachel Maddow about this, maybe they'll listen to somebody like Chris Christie, who also has seen Donald Trump up close and personal.

Brian Lehrer: Last question, Charlie, do you think, at all, that the country would be better off if what Trump did regarding the post-election period is just handled by the political sector as opposed to the courts? He played extreme hardball, obviously, in trying to get state legislatures and Pence to flip the election without evidence of outcome-changing fraud, but he lost, they didn't do it. Why shouldn't that be the end of it except for reports on what happened from the January 6th committee and then his political opponents using his actions against him?

Charlie Sykes: Well, either way, first of all, the way you describe it, that should be disqualifying in and of itself. I do think that there is a principle that no person is above the law. I'm going to cite Mitch McConnell who justified his ill-advised vote against that second impeachment. By the way, I'm guessing he regrets that very much now, saying, "This does not mean that the president is not criminally liable for what he has done."

If in fact, the criminal justice system did not hold him accountable, it would essentially be saying that no sitting president or ex-president will ever be held legally accountable for attempting to obstruct justice, misusing his office trying to obstruct official proceedings, or conspiring to overturn an election. That is a dangerous, dangerous precedent, and we're very close to that. There are a lot of Republicans who now are quite explicitly arguing that Donald Trump should be immune from any sort of legal accountability.

I'm not sure that that is what the founding fathers had in mind because the president, as Judge Chutkan said so memorably, "The president is not a king, and Donald Trump was not king, and he's not president anymore." Yes, I wish the political system had handled it. I wish the impeachment system, I wish that had handled it. Right now, we are left at the courts as perhaps the last bulwark for constitutional democracy.

Brian Lehrer: Bulwark, interesting choice of words. Charlie Sykes, co-founder of the news organization, The Bulwark. Anything coming up that you want to promote, a podcast, or anything else?

Charlie Sykes: Well, we're going to continue to cover this. Obviously, every Thursday we do a podcast called The Trump Trials with our partners from a law fair. I have been talking with other Republican candidates, including Asa Hutchinson, Chris Christie. This week, I'll be talking with Will Hurd.

Brian Lehrer: An interesting last thought that you gave us there that I'll just amplify for a second because I hadn't thought of it this way, but if the Senate had convicted him and removed him from office at the end there, in those last days after January 6th after the house impeached him, that would've disqualified him from becoming president again. Even being convicted and going to prison does not.

Charlie Sykes: Exactly, exactly. You can still be elected president of the United States as a convicted felon. You can actually serve as president as a convicted felon. If the Senate had convicted him that second time around, if Republicans had done whatever thing to do was, he would've been disqualified from office forever. That would've given them some short-term political pain. We would not be where we are right now if they had done that, if they had done the right thing.

Brian Lehrer: Charlie Sykes, thanks a lot.

Charlie Sykes: Thank you.

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Brian Lehrer: That was Charlie Sykes, founder and editor at large of The Bulwark, in conversation with me, Brian Lehrer. You can hear my show weekdays at 10:00 AM Eastern Time, live on WNYC, and you can hear Notes From America with Kai Wright live on Sundays or as a podcast on Mondays and Thursdays. Take care.

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