Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone, on this special edition. January 6th, 2021, I'll get it right, meets January 6th, 2023, and 30 more seconds of the Voice of Capitol police officer, Harry Dunn.

Harry Dunn: After getting relieved by other officers in the crypt, I took off running upstairs towards the speaker's lobby and helped the plain clothes officer who was getting hassled by insurrectionists. Some of them were dressed like members of a militia group, wearing tactical vests, cargo pants, and body armor. I was physically exhausted, and it was hard to breathe and to see because of all the chemical spray in the air.

Brian Lehrer: Another clip of Capitol police officer, Harry Dunn, from his live January 6th committee testimony, as one of the things we want to keep doing on this second anniversary of the assault on the Capitol is to remember the individual victims, even as we discuss the big sweeps of history.

I'm very happy to have with us now Ari Melber, MSNBC Chief Legal Correspondent and host of a show, The Beat, in the 6:00 PM hour Eastern Time, Mondays through Fridays. Now Ari has written a forward to a published edition of the January 6th committee report. It's the edition published by Harper Collins.

Ari, I see how much they use you on the network, even outside the show in recent times. Thanks for making some time for us today. Always good to have you. Welcome back to WNYC.

Ari Melber: Thanks. As a New Yorker, great to be with you, Brian, and with your listeners.

Brian Lehrer: I read your forward, and I'd say you have a thesis, and it's that we should think of January 6th, not as a single date in time, but as part of what you call a continuous coup conspiracy. Want to discuss that term, continuous coup conspiracy?

Ari Melber: Sure. My thesis may sound to some people who follow the news as fairly straightforward. Of course, it took planning to execute something that was that horrific, and in a very real and criminal sense, effective. Yet, like any thesis or any argument, we have to deal with the world as it is. I would remind everyone here, we are on January 6th, and we mark this day, and we'll continue to do so as a nation, those of us who face facts and the reality of that day. Two years ago, at the end of that day, it was not widely viewed as something that had been planned and was part of a wider set of planks, as I argue, of basically eight different plots conspiring to overthrow the election.

Even in the second impeachment of Donald Trump, it was largely presented as a single day attack where Donald Trump gave a speech in the morning that incited the attack in the afternoon. That's why I think listeners will remember all the talk about incitement, and what is a speech, and what is a call to arms, and those legalistic distinctions. That was far too narrow a framework. Even Trump's critics and people trying to impeach try and convict him in the Senate were using that narrow of a framework. If [unintelligible 00:03:31], and thanks to this committee's investigation, we've seen the sheer breadth of these plots, some which were hatched before the election even occurred, and the overwhelming evidence, as I document in this piece, that many of them were criminal.

Brian Lehrer: Listeners, maybe you watch Ari Melber on TV and always wanted to ask him a question but never had him over for brunch, so now's your chance. 212-433--WNYC. 212-433-9692. You can tweet a question for Ari Melber at Brian Lehrer. I do actually want to spend most of our time going through some of the eight distinct plans that you identify in this forward to the report to overturn the loss. I don't think we'll get to all eight.

You know the old joke about the broadcast version of the 10 Commandments, if they had it broadcasting back then. God gave Moses the 10 Commandments today. Two of the most interesting ones were. We'll go through what we can, but I want you to set it up with a very interesting, to me anyway, distinction that you make in setting up this forward, which is that things that are unconstitutional and things that are illegal are not always the same thing. That distinction matters for understanding the big lie in January 6th big picture. Why do you draw attention to that distinction between the illegal and the unconstitutional?

Ari Melber: It's an important distinction because the government is a special category of action. As we all know, however much we think about it, the government has these extra powers. Police can pretty quickly automatically do things that a human can't do, a civilian can't do. That doesn't mean that when they exceed those powers, they're automatically criminal. There's good reason for that because it wouldn't really work well if you had to keep indicting and convicting people just because they were perhaps wrongly exceeding their lawful authority. Although there is a level, as we all know, where it can reach crimes.

I give the example in the forward to the January 6th report of the Harper Collins edition, as you mentioned, that when the government does something that's obviously unconstitutional, like it says, "Oh, we're going to ban people entering the country based on religion," a familiar example perhaps, very quickly we have a system where the courts can rule that unconstitutional and they stop that. At a very real level, very quickly, it is halted, and I'm sure people remember coverage of that.

What that means is that the law of the land exercised through the courts has the final word and overruled the attempted law or the action pursued by the politician, but nobody goes to jail. It just means you cannot enforce that anymore, and it ends. Whereas a crime, what we think of traditionally, whether it is committed by someone who happens to also have government power or a random civilian, is a much higher bar of they set out to intentionally break the law and they personally acted to do so and they're tried, convicted and go to jail.

Those are two lanes that, outside of law school or theory, people aren't always distinguishing that much. I make that point because, for example, what they were asking Mike Pence to do was very certainly unconstitutional. The vice president, in his role overseeing the Senate, cannot steal or overrule elections. As we say in court, duh.

I don't see any serious legal scholar who suggested that doing that would be a crime. That is to say, Pence would be whisked off to jail that day. If he did that, we're supposed to have mechanisms to say that's unconstitutional. That's not what the Constitution says. You can't steal the election. Therefore that act isn't valid. It's not a lawful valid act any more than if he stood up some day on and said, "Hey, we won." That doesn't have legal force, as we saw, because they said a lot of lies that did not ultimately carry the day.

I think it's very important to understand, when I count the eight plots, I see basically one that was legal throughout, which is filing lawsuits and how they used it, and they really pushed it, but that's basically legal, even if the lawsuit is complete crap. Another--

Brian Lehrer: Go ahead. I'm sorry. Go ahead. Finish that sentence.

Ari Melber: I'll try to round it up in two sentences. Another that started out lawful the elector's plot but turned criminal-

Brian Lehrer: I was going to ask you about, but go ahead.

Ari Melber: -and then the other six being unconstitutional or criminal throughout.

Brian Lehrer: The fake elector's plot is fascinating to me being on that line between an attempted legal parliamentary maneuver and something that's criminal. I'll say that your show has taught me a lot about that because I first thought, if they want Trump electors standing by in case the legal process allows them to be seated, that's not a crime. Why do they get called fake electors now, and where does it become something worse potentially than political maneuvering?

Ari Melber: Yes, it's a great question, Brian. We do want a wide birth for political advocacy, zealous advocacy, and plenty of tough politics. That's not supposed to be 'criminalized'. I think listeners remember sometimes in certain scandals where people talk about the 'criminalization of politics', and if by that we mean taking the normal pursuit with aggressive full force energy of office and making it a crime, no, we don't want that.

The electoral squad's a funny one, but the way I would put it is, you know when it became illegal on the calendar because from December 14th on, the actual electors were lawfully and finally submitted to the electoral college process, which however weird it is, is in the Constitution. Before that day, you can say, we have this alternate option, maybe in case something changes or in case we win a lawsuit, or here's why, fine, after that day, you have elective fraud. As we pointed out in my coverage on MSNBC and in other places, there are people in the United States in prison today serving multi-year terms for a single isolated paperwork violation where they were found of committed voter fraud. They weren't eligible or they had been taken off the roles and they went forward anyway, and they're in prison, Brian. Many of them are poor and minorities, some of them are poor and white, none of them, just about none of them are wealthy with good lawyers, of course, which goes to other problems in the system, but real people in real prisons for that isolated minor one-off.

This wasn't no one-off, this was a multi-state coordinated plot at the highest levels of government with the president's lawyers involved to commit elective fraud. It went all the way through to January 6th, which, if people remember, there were officials still trying to submit fraudulent slates of electors that day on the floor to Pence to give him the pretext to create chaos.

My observation, again, my job is to say what the facts show, not to pick partisan sides, my observation legally is, that's overwhelming evidence of a crime, and that crime has not been charged.

Brian Lehrer: Let me go to what might have been, to my eye, the most disturbing from your list of eight ways that they tried to overturn the election or consider doing so. It's what you call in the book, the Pentagon and orange jumpsuits scenario. Now I guess we're moving toward an actual war footing. Part of this is the military seizing voting machines, which they did not ultimately try to do.

What about the Pentagon and orange jumpsuits? Why is that a section of your forward to the January 6th committee report?

Ari Melber: This is something that the committee unearthed in more detail than we ever knew, and it's vital for legal reasons to go beyond the story. Basically, Donald Trump was getting increasingly desperate because some of the plots were not working. This is one of those eight plots, although it was ultimately discarded, where the more radical people on team coup, so you have the team lawful that doesn't want to go along with the coup, and you have the civil service pushing back, then you have team coup, but even on team coup, people like Rudy Giuliani said, we can't involve the military, we'll end up in orange jumpsuits.

One night here in December, what you have is basically the more radical members of team coup who were banned from the White House even by Mark Meadows are snuck in by an aide, Peter Navarro, for this late night session to give one more pitch of their plot where they wanted the military to seize voting machines, that is an unlawful order, that is illegal, that is out of bounds, and try to get one of their coup members, Sidney Powell, into a government position. Now, this is something the founders worried about, that, yes, you have this independent election, but then you have all this power, and what if you just bring all your election people in to override the power. That's why election officials, judges don't report in to the president in any way.

Anyway, they get snuck in by an aide, Peter Navarro. They have this crazy ridiculous bananas meeting. Ultimately, they discard this plot, and because Trump is convinced by some of his people like Giuliani that this would blow up in their face, that they would end up in jumpsuits, et cetera. That same night, around 2:00 in the morning, is the first time that Trump publicly summons people to Washington on January 6th. That is damning criminal evidence against Trump because it shows that anytime he was set back in one of these eight plots, his lawyers can't claim, Oh, he followed the law, he was keeping the lie, he didn't want it to turn violent. Quite the opposite.

He then would double back retrench and find a different way to pursue the same goal, and the military goal which he discarded, and the goal on the 6th which he pursued, were the same. Sabotage the lawful election to illegally try to overrule it and stay in office illegally. The difficult question for whether you charge a former president, I think remains. These are things where the Merrick Garland Justice Department has not charged any of the other individuals, citizens who were in that meeting, or government officials, for any of those roles. They have stuck to only the people who physically stormed the Capitol, the muscle.

Brian Lehrer: You just told me something I didn't know in that story, if I heard you right. Did you actually point to a moment where Rudy Giuliani was a voice of restraint in all this ?

Ari Melber: [chuckles] Yes. Basically.

Brian Lehrer: [laughs] The Pentagon was one of the institutions that held. There was a warning, there were things that members of the joint chiefs of staff said about how they were afraid that Trump would try to use the military, and yet when we talk about the oath keepers, they are explicitly a militia made up of former members of the military and former members of police forces.

I wonder if the committee addresses in the report at all, if they took any testimony, on how much of a rebel faction there could potentially have been in the US armed forces.

Ari Melber: The report doesn't go deeply into that type of concern, but it definitely has a whole security section looking at both the general failures, how did you not protect these actual physical spots better, as well as raising questions about how these militia groups did seem to be so effective. For example, members of some of these militia groups having contacts with a high level Republican elites, like Roger Stone who was still in contact with Trump in the days leading up to the 6th, which leaves a lot of open questions, as well as any contacts they had with the law enforcement agencies. I didn't read that section as you could write a whole year long study alone of the larger questions about infiltration. I don't think they got deep into that.

Brian Lehrer: Another plot, from your list of eight, is what you titled a Federal Meltdown, and that one gets disturbing involving the Justice Department and some other things. Tell us the Federal Meltdown scenario that the committee identifies in its final report.

Ari Melber: Yes, this is also very bad for Trump even though his plot was scuttled because he wanted to abuse power of the Justice Department to try to overrule a few states where Biden had won. Watergate was 30 tricks largely outside the building, if you will, dirty tricks that occurred over here, and then trying to press DOJ and CIA abuse that power to cover it up, to stop the investigation. What he wanted to do was far more direct, and so many people would say in that sense, worse than Watergate because he went, Trump, directly to DOJ and said, "I need you to lie about the results to create a pretense of investigating fraud and demand one or more states, including Georgia, meet to potentially overthrow Biden's win in the state." Now, Trump's thinking, again, this goes to people who say, "Oh, he's--" People have all these caricatures of him. He's very shrewd in this sense, maybe only in the criminal plotting sense, but he had an understanding that what he wanted to get out of the Republican states wasn't happening.

It was a bridge too far to get even super partisan Republicans in relatively conserved areas to overthrow their own voters, so he needed more, and he thought if he could get the DOJ involved, it would create enough of a pretense where those state Republicans who weren't acting would be able to say if the DOJ says they're fraud, then, yes, we should have this legislature meeting, and then from there, he would go forward.

We're watching right now a Republican chaos on the House floor where once you get the problem going, once you get everybody in there, the whole situation looks different. I'm not sure that six months ago if anyone could have predicted exactly this, they would've said, well, sooner or later, McCarthy hold as he did the last a hundred years, like speakers usually do. Trump has a feel for those things, and so that was the goal. That was a Federal Meltdown. The DOJ pushed back hard, but he found this guy, Jeff Clark, who's now under investigation, to try to muscle up and potentially become acting AG. There's some confusion about whether he momentarily was going to be the DOJ's Republican Trump appointees. These are people who are with his conservative ideology, or whatever you want to call it, they threaten to resign in mass, [unintelligible 00:18:37], Trump backed down.

Again, that's one of the other plots that's bad for his criminal intent because it shows how many different ways he tried to engineer this outcome, which is why it's not enough in the court to say, "Oh, of course Trump wanted bad things to happen on the 6th." You don't like Trump. That's not called evidence, that's opinion. When you look at all the different ways that-- What do all these plots have in common? They all had the illicit, unlawful goal of overturning the election. When he ran out of certain ones, he landed on literally and physically sabotaging the vote on the 6th.

Again, to distill it all for voters and listeners here, as we're on this anniversary day, I think the case that he had a direct link to the militias to proactively stage an insurrection is a tough case to make on the available evidence. I wouldn't call that a strong case. I think the case that he had the criminal intent to obstruct and delay the proceeding, which they did, is a very strong case. I would call it an overwhelming case. Again, if people say, "Okay, Ari, Brian, what's the point?" Well, here we are two years out, what's going on at Merrit Garland's Justice Department, if that case against the co-conspirators and or the former president is not currently being made at all?

Brian Lehrer: Here's a question that I keep having in my mind and I'm not sure that it's been answered well enough. For you as a lawyer, if they're going to make a criminal case against Donald Trump along the lines that you've been discussing, do they have to prove that he genuinely believed that he lost the election and was trying to overturn it anyway? Because you get some of the witnesses to the January 6th committee who say no despite all the cooler heads within his administration, William Barr and many others, who told them no, there was no election fraud at the level that would overturn the election, that he believed it anyway, and that would make it harder to prove criminal intent. What's your lawyer's take on that?

Ari Melber: No, they do not need to prove his mindset regarding whether he really thought he lost or not. They do need to prove his corrupt or illicit intent. Let's use a different example. If you go into the bank, and you really, really, really believe the money in there is yours, in the safe, and you try to physically go in and take a million dollars out of the safe that's not yours, even if you pass a lie detector test to whatever that you really believed it was yours that you had that delusion, that ain't going to clear you of taking the money that wasn't yours.

Now, I can give you a different example. If you were at work and somebody comes in and says, "Brian, can you hold this package for me because I have to run out, and someone's coming to pick it up." You say, "Sure, you're a nice colleague," and it turns out the package is full of heroin and other contraband, and you had no other corrupt or illicit intent, and legally it would be hard to hit you for that because you didn't have either corrupt intent or the knowledge of what you were holding.

If you think of this as a spectrum, the law, to be fair, cares about the mindset because in that second example, it would obviously be unfair and very easy to frame people if you did that. When I say corrupt intent, it doesn't mean legally that he had a full hold on every concept. Plenty of people commit crimes because they in their mind think they're doing something that they think is, for example, right, or avenging something, or whatever, or they're getting what they want back. Or you can have a dispute in your neighborhood and say you took that, I'm taking this.

In your mind, you're taking back what you're owed. That ain't good enough if you had the corrupt intent to still, for example, break into someone's home, or in this case, the corrupt intent to submit elector fraud that you knew was false according to the rules as they were. Which is why it was a secret and why you did it fraudulently, or sabotage the certification. Now then you're saying there's a second layer. Oh well, in his mind, sabotage the certification could be justified if he thinks he's the rightful winner. That could be true in his mind and doesn't make the prosecution more difficult.

I say that because these things are a little tricky. I always tell people, what's the difference between leaving your oven on and burning down the whole building, which is a tragedy, and going to turn your oven on to burn down a building, that's arson. The physicalities are the exact same. It was what is in your mind, and that's why cases go to that. Yes, I think there's been some attention, but probably too much, to whether he believed that.

Then the last thing I'll say on this long answer, Brian, is, Committee does a good job in the report of showing that he told aides, Oh well, we lost, we just have to find a way to spin it. He made directives about troop movements and other real governing activities with the expectation that he was leaving on the 20th, that he events the knowledge that he was going and probably had lost, but again, I don't think that's required to prove a case.

Brian Lehrer: We have a few minutes left with Ari Melber, MSNBC Chief Legal Correspondent and host of The Beat in the 6:00 PM hour Eastern Time on MSNBC. He has written a forward to a Harper Collins edition of the full January 6th committee report. I said I would let some listeners who see you on TV but never got to ask you a question themselves have at you on Twitter or on the phone.

Here's a tweet, and this is from a fan. Listener says, "How does Ari keep a straight face and respectful tone when cynical politicians come on a show and pretend not to understand the basic facts of the day?"

Ari Melber: That's a great question. I had one of Donald Trump's impeachment defense lawyers on recently, and we went back and forth. I had Mr. Navarro, who's now been indicted and awaits trial, for a series of interviews, and he's obviously advocated many extreme positions about overthrowing the election. I really believe, if I'm trying to do my job right, it's more important to use those exchanges to get the answers and information out of people, and test them and fact check them, and then we can always end the interview or not have them back.

That's the role, and if there's too much emoting and reaction or whatnot from whoever the anchor might be or the interviewer, that really tends to get in the way. That's the way I think about it.

Brian Lehrer: Another listener tweets, I think this is aimed more at me than you, but it says, "Your lack of curiosity about why the FBI did nothing to prevent the January 6th attack despite knowing there were people planning this, not suggesting they planned it, but why is it not a bigger question for you? Are they not capable of letting this happen on purpose?" It's a conspiracy theory, in a certain way, but we know the FBI is full of both Trump supporters and Trump opponents at the rank and file level. I think that's been established. Was there anything like that in any of the January 6th committee interviews?

Ari Melber: Well, I think we have to look specifically at who's tasked with doing what. The Federal Bureau of Investigation largely operates as the arm of the Justice Department dealing with federal investigations, as the name implies, past crimes, and then yes, a layer of intelligence and information. If we're talking about the physical protection of the Capitol, the main and longstanding role there is the Capitol Police, which everyone saw, and then the option of the National Guard as a reinforcement.

I think the reasons that the National Guard were not better involved make sense, although they are also disturbing, and that is, if Donald Trump actually was at one point pushing a plot where he would want the Guard deployed in advance to help "his side", the military, which you mentioned earlier, has had its concerns about how they could be pushed or called upon in unlawful ways for Trump, and so there was a great high level [unintelligible 00:27:05] about getting too involved too early in that day. Then you say, well, it's the Guard. The Guard is controlled in this dual format by both the executive of federal government branch and state governors. It all gets a little wonky.

I think that those were the two places where the protection should have been. I think if you run it back what the report finds, is that there should have been a much more muscular approach on the front end, that if you really put up the big walls and really had the Guard out there in a different way, then even those motivated attackers wouldn't have breached the Capitol. It would've been a less terrible day.

Brian Lehrer: The committee report establishes, and the testimony establishes, correct me if I'm wrong, that there was a lot of discussion among oath keepers and proud boys and all other kinds of people that you would think the FBI or some other law enforcement was picking up along the way between the election in January 6th, about plans to be violent or breach the Capitol or something physical on that day. Yet we played the clip earlier of Capitol police officer, Harry Dunn, testifying to the committee that he had no reason to believe, when he went to work on January 6th, that they were facing anything other than a day of peaceful protest. Somebody blew it some way, and I think the Republicans, who were taking over the House, actually want to investigate that.

Ari Melber: Well, look, this is a interesting thing. Like any investigation, you have to keep an open mind. You're not saying, Oh, we're looking at these people, but those folks, they're off limits or they're great. Obviously, no, I don't-- The part of the question that I definitely can engage is, yes, open mind for everyone.

Having said that, if you want my honest view as someone who's people can listen to me and to make up their own mind, but I don't think I'm trying to pull any punches here, I do think that when you look at security problems in general, we've seen this when you look at the airline industry, the post hoc Monday morning view is always, oh wait, well, we found this, why didn't that tip them off? When you're sifting through these things, I have been around secret service, I have been around security events, there's a lot of what they call chatter. There's a lot of flares that come up. Obama thankfully never faced a direct attack, but there was a ton of noise and traffic about that, and then they would have to decide in any given city how far to go.

I am aware, I'll just give you this specific example, I'm aware of times where the security folks were saying we shouldn't do any events in this city, the noise level is too high. We were worried about these things, and they were overruled and they did the event. My point being that, what the committee report has to get back to the evidence is they have some really disturbing examples of the type of chatter about this event, but they don't have, in my estimation as a reporter, 100 or 1,000. It wasn't an overwhelming amount of chatter, and so I think that it was perhaps misperceived as a few people talking tough.

Brian Lehrer: One more listener question. Teresa in the Bronx, you're on WNYC with Ari Melber. Hi, Teresa.

Teresa: Hi, Brian. Hello, Mr. Jenkins.

Brian Lehrer: Mr. Melber.

Teresa: Mr. Melber. Oh, I'm sorry. Okay. I just wanted to say that I had written a statement to NAN's what's on your mind section, [unintelligible 00:30:25] rally. That was on Saturday, November 14, 2020. When I heard Mr. Michael Cohen, he did his testimony before Congress, and he made that statement, "Fear there will never be a peaceful transition of power." That statement has been made over and over again ever since he said it. What I said in my statement was that I fear that something ominous was coming in terms of a coup. Then I gave the definition of a coup, which is a sudden violent and illegal power grab, and lo and behold, on January 6th, it actually took place. I had that uneasiness all along, and I'm having the same uneasiness now.

Brian Lehrer: Teresa, I have to leave it there for time. Your uneasiness now is that something like this could happen again or could still happen, right?

Teresa: It was just a foretaste of what's to come.

Brian Lehrer: Yes. Ari, we'll end on this because you and the foreword to the January 6 committee report, ominously saying this could go down in history as an aberration to electoral democracy, the peaceful transfer of power, or as training, you use the word training for the next coup. What's the darker scenario there, then we're out of time?

Ari Melber: I appreciate the question because we have lived through a very tough period, and the people who were warning about it and taking it more seriously were initially largely, I think, dismissed, at least within the elite chatter, if you go back to 2016. Then when Trump first came into office, sometimes it was, oh, this is an overreaction to him and whatnot. Well, I think we've all seen the perils of that approach. Yes, we have to be vigilant.

I closed my foreword to the January 6 report by saying that if only the muscle and the people who physically stormed the Capitol are convicted, but all the elites are not, the lawyers and the politicians, then that sends a very clear message that those folks could continue to do this again, and so what was a failed coup can become a training exercise. This goes to both what the Justice Department does, but also our larger civic approach of how we draw these lines and what our standards are, what our litmus tests are for would-be authoritarians in office. I think it's very important that we be vigilant.

I also think it's important that we be clear-headed, because a World History is full of these problems. There's nothing unique, or special, "about this moment." In that sense, that shows both that we can deal with it, and it's been facedown before, and so that takes everyone participating not being exhausted or tuning out. Yes, I think that's an important vigilant approach.

I'll tell you, Brian, I appreciate you mentioning my report. I always tell people, there's multiple editions of the report. You can get the report itself for free online if you want to read it that way from the committee. You can get my version with the foreword we discussed today at melberbook.com. It's about $14. It's number one on The New York Times bestseller list this week, so I know some people are getting it.

Brian Lehrer: Oh, I didn't even see that yet.

Ari Melber: You can also get it for free.

Brian Lehrer: Congratulations.

Ari Melber: The other thing I'll say for free is, if you want to connect with me, you can go to arimelber.com. I have a newsletter, and you can pick the free option. Most of the entries are free because not everyone's always watching TV, so I like to keep in touch with people, especially here in New York, and I appreciate you giving me the time, Brian.

Brian Lehrer: Among all those other things that he just mentioned, Ari Melber is chief legal correspondent for MSNBC and hosts The Beat on that station, 6:00 PM Eastern Time on weeknights.

Ari, thanks a lot. We really appreciate the time today.

Ari Melber: Thank you, Brian.

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