BROOKE GLADSTONE This is On the Media, I'm Brooke Gladstone. And this week, the select committee investigating the January 6th attack on the Capitol continued to expose a widening gyre of criminality.

 

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LIZ CHENEY And let me also today make a broader statement to millions of Americans who put their trust in Donald Trump. [END CLIP]

 

BROOKE GLADSTONE Committee Vice Chair Liz Cheney.

 

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LIZ CHENEY It can be difficult to accept that President Trump abused your trust. That he deceived you. Many will invent excuses to ignore that fact. But that is a fact. I wish it weren't true, but it is.

 

BROOKE GLADSTONE Among this week's revelations, we learned that the stymied president was "this close" to replacing his qualified acting attorney general, Jeffrey Rosen, with a low-level ringer name of Jeff Clark solely because he was willing to send out a letter to Georgia on DOJ letterhead. The first, perhaps of many to swing states declaring the 2020 election corrupt. The entire DOJ leadership threatened to bolt.

 

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RICHARD DONOGHUE I said, Mr. President, I would resign immediately. [END CLIP]

 

BROOKE GLADSTONE Including Acting Deputy Attorney General Richard Donoghue.

 

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RICHARD DONOGHUE I'm not working one minute for this guy who I had just declared was completely incompetent. And so the president innately turned to Mr. Engel and he said, Steve, you wouldn't resign, would you? And he said, Absolutely, I would, Mr. President, you leave me no choice. And then I said, And we're not the only ones. No one cares if we resign. If Steve and I go, that's fine. It doesn't matter. But I'm telling you what's going to happen. You're going to lose your entire department leadership. Every single A.G. will walk out on you. Your entire department leadership will walk out within hours.

 

BROOKE GLADSTONE Donoghue said Clarke would be left leading a graveyard. Trump backed down. Sad. Wednesday, it turns out DOJ law enforcement visited Clarke's house, presumably for evidence in its investigation of conspiracy to defraud the United States by overturning the election. This week saw reports of lots of new subpoenas served to state GOP party leaders who helped to put together slates of fake electors. Also, lots of requests for pardons by high placed advisers and some prominent stop-the-stealers in Congress.

 

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POLITICIAN How do you know the congressman Gaetz asked for a pardon?

 

ADVISOR He told me, he asked Meadows for a pardon. [END CLIP]

 

BROOKE GLADSTONE So Matt Gaetz of Florida, Mo Brooks of Alabama, Louie Gohmert of Texas, Scott Perry of Pennsylvania, Marjorie Taylor Green of Georgia and Andy Biggs of Arizona. Perry Biggs and Taylor Green have denied it. Wisconsin Senator Ron Johnson was initially in denial, too, about trying to pass a slate of fake electors to Vice President Pence on January 6th, but finally admitted he did try to hand-deliver a package to Pence but didn't actually know what was in it.

 

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COMEDIAN I've always wondered who those announcements are for. Yeah. Yeah. Turns out it's Ron Johnson. [END CLIP]

 

BROOKE GLADSTONE All of these proofs of many hands guiltily chipping at the buttress of democracy, but offered in that hearing room with surprising restraint. A slow burning but searing blaze.

 

MICHAEL WALDMAN It is one of the greatest congressional hearings in decades in setting out compelling witnesses, compelling facts, not just a bunch of members of Congress bloviating, but really a story being told that has within it elements of criminal activity laid out like an indictment.

 

BROOKE GLADSTONE Michael Waldman is a constitutional lawyer and president of the Brennan Center for Justice at NYU School of Law.

 

MICHAEL WALDMAN It's a world record restraint of congressional ego that they've been able to it this way. The Republican leadership, Kevin McCarthy, badly misplayed this because rather than negotiating to put some of his diehard Trump supporters on there, he walked away, presumably because he thought Trump would be mad if they cooperated at all. It's kind of funny to watch how in the first days Trump and the Republican leadership sort of ignored it. By the second week, they're saying, Why didn't we get our people on there? But I also don't think we should fall into the trap of thinking of this as not having Republican involvement.

 

BROOKE GLADSTONE We can ignore the role of Cheney and Adam Kinzinger on the committee.

 

MICHAEL WALDMAN And the witnesses, one after another series of indictments of Donald Trump out of the mouths of prominent conservative Republicans, people who are very respected within that world. It's all that much more compelling.

 

BROOKE GLADSTONE Let's talk about Rusty Bowers.

 

MICHAEL WALDMAN Rusty Bowers is currently the speaker of the House of the Arizona legislature. He is a prominent conservative Republican, a prominent member of the Church of Latter Day Saints. And he recounted, in harrowing terms, a number of phone calls from the president. Bowers said, I can't overthrow the election.

 

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RUSTY BOWERS It is a tenet of my faith that the Constitution is divinely inspired. And so for me to do that because somebody just asked me to, is foreign to my very being. I will not do it. [END CLIP]

 

MICHAEL WALDMAN And the president of the United States said we'll do it anyway. And his lawyers called and said, do it anyway.

 

BROOKE GLADSTONE Just as harrowing, the threats his family received. He talked about his daughter, gravely ill, who was terrified. He called his wife "valiant" and yet, when asked recently would he vote for Trump again, he said if he was running against Biden. Yeah.

 

MICHAEL WALDMAN The evangelical Protestant voters who are the base of the Republican Party and so much of the country care so much about LGBTQ issues, about reproductive rights. They feel the need to be with the Republicans, even if Donald Trump, who they regard as an authoritarian, is the head of the ticket. You have to imagine, certainly Bowers doesn't want Trump to be the head of the ticket. And one of the most important things that could happen in this country and maybe a little bit is happening is a fracturing of the Republican Party around MAGA. Powerful role of Liz Cheney in this hearing is part of that. You're starting to see it in the Republican primaries, in the polling. But even as these hearings were taking place, the primaries for Senate, for governor, for House races, candidates who mouthed the big lie of a stolen election keep winning, even as the big lie is proven to be a lie.

 

BROOKE GLADSTONE Okay, enough of this idle speculation. Let's get to the prosecution. It's two charges, obstruction of an official proceeding and attempting to defraud the government. These are very dry words for a two pronged effort to stop the peaceful transfer of power. Obviously, we don't vote for president. We vote for a slate of electors who will go to the Electoral College. Those electors elect the president. Right.

 

MICHAEL WALDMAN The Electoral College, actually, to the extent it's a real thing, voted in December. The ceremony on January 6th, the gavel gets banged and people bring the box in. We may remember Al Gore or Dan Quayle, other people having to read the results that they themselves had lost an election.

 

BROOKE GLADSTONE But in an unprecedented move, President Trump wanted the presiding officer in this case, Mike Pence, to accept a bunch of alternate slates of electors.

 

MICHAEL WALDMAN What Trump was trying to do was to create enough doubt to force Mike Pence, the vice president, to do something he had no legal right to do, which was to reject the electors, just cancel the whole thing and send it, quote, back to the states.

 

BROOKE GLADSTONE Robert Sinners was one of those fake electors.

 

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ROBERT SINNERS We were just, you know, kind of kind of useful idiots or rubes at that point. [END CLIP]

 

MICHAEL WALDMAN This week, while the hearings were going on, the FBI issued subpoenas for the cell phone of the party leaders in different states, because it turns out, as the hearings showed, these fake electors didn't just go off on their own. Their effort was scripted by the White House. And that's a big deal. They are showing a phone call where Trump talked to the acting attorney general and Trump said just put out a statement saying it was corrupt and leave the rest to me and the Republican members of Congress. They wanted to show and I think did show that Trump knew he lost the election.

 

BROOKE GLADSTONE That is the big question. I have read endless articles on this matter of criminal intent. It seems as if you almost have to look into the defendant's heart.

 

MICHAEL WALDMAN The different criminal statutes have different standards for what level of knowledge, what level of corrupt intent there has to be. But think of it this way. If you pick up a loaded gun and I say, that's a loaded gun, don't point that. And you say, no, it's not. It's a potato. And they say, No, really, it's a loaded gun. And you say, No, it's just a potato. And you shoot someone and say, I believed it was a potato. You're still criminally liable. There is a possibility in many parts of the law for willful ignorance. When you choose to make sure that you say that you don't know so you can do what you want. And when it comes to something like the pressuring of the election officials and others in Georgia, where we heard him on tape saying, hey, just find me the 11,000 votes that shows enough criminal intent right there. But you don't have to really delve into the recesses of his heart or mind.

 

BROOKE GLADSTONE What about in the same tape when he says, we just want to get to the truth?

 

MICHAEL WALDMAN Well, that's where these hearings don't really answer the question of whether the Justice Department will bring prosecution. There's all kinds of evidence that he knew going into the election and after the election, but he'll be able to use the. Velocity and volume of his own lies as a defense.

 

BROOKE GLADSTONE Is there any scenario in which all of that evidence that Trump knew won't amount to a hill of beans?

 

MICHAEL WALDMAN Well, that's one of the big questions that Merrick Garland and other prosecutors need to assess. If a crime is big enough, if it is clear enough, if the consequences are predictable enough and bad enough, then it's less important to show whether deep in their heart, the person who committed the crime, what their sense of reality was. Even if Trump from 2 to 4 in the afternoon on any given day, thought, Oh, I really won. And then from 4 to 6 knew he lost, he nevertheless knew it was illegal to do the things he was doing that were illegal. Look, this is not an easy question for the Justice Department. We certainly would not want to live in a country where it was a routine matter to prosecute the previous president the way you might see it in some dictatorship. But we've also never had a president of the United States try to overthrow American democracy before. That's what's been shown in these hearings and also in other evidence throughout the year. There's no doubt that it would be an extraordinary and disruptive thing to prosecute Donald Trump, but it might be more extraordinary and more disruptive over the long term, not to. One of the things that's so extraordinary with all of this is we all saw January 6th as it happened. We all saw Trump's public efforts in 2020 to try to overturn the election. And it was a bit of a clown show. It certainly seemed to be. You had Rudy Giuliani with a hair dye dripping down his face. You had Sidney Powell promising to release the Kraken. The Mypillow guy, all these crazy people running around.

 

It turns out that beneath that, behind that, there was a far more serious, far more dangerous, far more thought through effort to overturn the election and overturn American democracy. We now know that while all this was going on, Trump was trying to take over the Justice Department to use it as an instrument in the effort to stop the peaceful transfer of power. He was going to elevate a very obscure official from the environmental wing of the Justice Department to become attorney general, because that person was willing to send a letter to the state saying the election was corrupt. Stop the presses. Don't send your electors. And that would have been an extraordinary constitutional crisis. And the acting attorney general, the acting deputy attorney general rushed to the White House and confronted the president in an Oval Office meeting. We now know and said we will resign and so will everybody else at the Justice Department. You may remember from Watergate, the Saturday Night Massacre, when Richard Nixon in 1973 ordered that the special prosecutor be fired who was seeking his tapes. And when the attorney general and deputy attorney general resigned and were fired, it basically started the impeachment of Nixon. And Nixon had to give up the tapes. This would have been like the Saturday Night Massacre by the hundreds. It would have been the biggest crisis in the history of the Justice Department. And we came within minutes of it happening and we didn't know about it at the time.

 

BROOKE GLADSTONE We've been hearing about periodic flurries of subpoenas on various issues from the Justice Department. Is it fair to ask you tell me what you think the Justice Department is up to now and then the precarity of Merrick Garland's position.

 

MICHAEL WALDMAN We've been watching and the Justice Department has not been inactive, but there's been a lot of questioning about whether they're taking the high level crimes potentially here seriously. We've seen them prosecuting hundreds and hundreds of people for the attack on the Capitol. We've seen them start to go after the proud boys and the other militias who really planned this violent assault. But it's been a real question as to how seriously they are taking the political crime here. This wave of subpoenas involving the fake electors all over the country may be the first time that the Justice Department is showing its hand. Really investigating possible crimes about the basic effort to stop the peaceful transfer of power by the White House, all of which is to say that Merrick Garland is a very serious prosecutor. Adam Schiff and other members of the committee have criticized him for being too cautious. We don't know. Is he being cautious? Is he being quiet?

 

If there is a prosecution of the president and those around him, it would have to be done as much as possible with an eye toward making it seem and be legitimate to as large a group of the public as possible. That's not only important as a public matter. It's even important in terms of getting a conviction when you bring a prosecution. You always have one eye on whether or not you can get a jury to convict. We have read about the decision by the Manhattan District Attorney's office to pull back from one of the possible areas of prosecution of Trump involving him lying in his real estate business. And according to media reports, part of the problem was that the only witness who they felt they could put on the stand was Michael Cohen, President Trump's former lawyer, who would not be trustworthy, and that in the end, the difficulty of getting a conviction affected, what to do at the beginning of the possible prosecution. Prosecutors do think about that. They should think about that. Again, sometimes the crime is of such magnitude, such seriousness, and with so much evidence, it outweighs the doubts that people have. We're thinking about what is in the mind of Donald Trump right now. We need to be thinking about what is in the mind of Merrick Garland.

 

BROOKE GLADSTONE There was a commentary in the New York Times this week which talked about how Garland also has to consider what is really in the public's interest. We are all so riven, it's only going to make it worse. I felt that rang hollow because we did see the Capitol overrun. I don't know how we could be more divided than we are.

 

MICHAEL WALDMAN Nobody wants more divisiveness. But the law is the law. The Constitution is the Constitution. I think that the Justice Department, Merrick Garland, ultimately have to make the decision, not out of nervousness about the public mood, but out of fealty to the law and the Constitution and the facts. I think it would be irresponsible to do anything less.

 

BROOKE GLADSTONE You wrote in a column a while ago in Focus on a Big Lie, Not on the Big Liar. Do you still think that's true?

 

MICHAEL WALDMAN First of all, one of the things that this set of hearings shows is that the lie, the big lie about our elections continues to poison American politics and is the basis for so much of what is going on right now in the states. One of the most compelling witnesses, he spoke rather slowly, but his words were searing was Judge Michael Luttig. People may not know Luttig was almost appointed to the Supreme Court twice by George W Bush. He is a very esteemed conservative Republican lawyer.

 

BROOKE GLADSTONE And also had some prominent clerks.

 

MICHAEL WALDMAN John Eastman was one of them. And he, of course, was Trump's wingman in his effort to overthrow the election. And Luttig testified that Trump and this big lie is a clear and present danger to American democracy, now and in 2024. This is not over. The last effort to overthrow the election was chaotic and shambolic. Now it's professionalized. Now we're seeing supporters of the big lie being installed in election offices all over the country. We're seeing candidates embracing it. It is looking more and more like it will be a struggle to get people to agree on the result of the 2024 election. I'll say one other thing, too. I think these hearings are making a very powerful case for criminal prosecution, but that can't be, and that isn't their only purpose. Public opinion has to be a central goal for this committee.

 

BROOKE GLADSTONE Even if the viewers of Fox News don't get to see it. Is there a court of public opinion anymore?

 

MICHAEL WALDMAN Well, think about the very first day of the hearings. It was on in primetime. And there was what's called a roadblock, which is. The broadcast networks. ABC, CBS, NBC played the hearing in its entirety as a big news event. Not just FOX or CNN or MSNBC. There are a lot of people who don't obsessively follow cable news. There are a lot of people who don't check Twitter all day. They're actually living their lives and a lot of them watch broadcast TV. About 20 million people viewed the hearing that night. That's about the same as a football game. So it was a bigger, larger audience than is used to hearing about these things. If it's the first time you're hearing it, it's pretty devastating. Congressional hearings used to be a very major media event, a very significant way to move policy and change the country. We think about the Watergate hearings in 1973 or the Army McCarthy hearings. We haven't really had that in a while. But these sessions by this committee are looking like they're going to have a pretty significant impact on the public's view. Already, the percentage of the population who say they want Trump prosecuted has gone from 50% up to 58% in the first two weeks. That may be a temporary blip, but it sounds pretty meaningful, too.

 

BROOKE GLADSTONE Michael, thank you very much.

 

MICHAEL WALDMAN Thank you for having me.

 

BROOKE GLADSTONE Michael Waldman is a constitutional lawyer and president of the Brennan Center for Justice.

 

That's it for this week's show. Thanks to Alana Casanova Burgess and Jessica Glenza for reporting the Susan Struck story and to Mark Henry Phillips for composing the music. Katya Rodgers is our executive producer. On the Media is a production of WNYC Studios. I'm Brooke Gladstone.