Special Counsel Jack Smith: The indictment was issued by a grand jury of citizens here in the District of Columbia, and it sets forth the crimes charged in detail. I encourage everyone to read it in full.

Brian Lehrer: One more time for those of you who didn't hear it at the beginning of the show. Special Counsel Jack Smith from Tuesday's announcement of the indictment of Donald Trump and six co-conspirators encouraging Americans to read the 45-page indictment for ourselves.

We've just taken on big chunks of it and now we'll discuss some of what we've been hearing with former Watergate prosecutor, Jill Wine-Banks, and with you on the phones. What jumped out at you from hearing any part of the indictment read out loud in detail like that during the show? What did you learn this morning that you did not already know? 212-433 WNYC. All our lines are full now, so you'll have to get in as people get off. You can also write a text to that number or tweet @BrianLehrer.

Jill, you've been following all this closely since the 2020 election as a commentator and former Watergate prosecutor. Did Special Counsel Jack Smith present in this indictment much that's new to you?

Jill Wine-Banks: Well, I have been following it very closely, and I would say that there are parts here that I went, "Yikes." One of those is for example, on page 23 and 24 of the indictment. I don't know whether that's already been read, but it's the part where it says, "Co-Conspirator 5 and co-conspirator--" Well it's on December 8th, "Co-Conspirator 5 called the Arizona Attorney General, who we all heard testify and who was very dramatic in his testimony and in an email after the call, the Arizona attorney recounted his conversation with Co-Conspirator 5 as follows."

"I just talked to the gentleman who did that memo," which is Co-Conspirator 5. "His idea is basically that all of us, Georgia, Wisconsin, Arizona, Pennsylvania, et cetera, have our election, our electors send in their votes even though the votes aren't legal under federal law because they're not signed by the governor. The members of Congress can fight about whether they should be counted on January 6th."

It goes on and on but the fact that they have that level of detail and that they have the vice president's contemporaneous notes, that's another thing that of course we didn't know that they had his notes, that he was that cooperative, that he gave them his notes.

I think it's really a well-done speaking indictment that lets people know exactly what was happening in a chronological order that they can easily follow and feel like they're witnessing what was happening as they planned this coup and executed it. Luckily unsuccessfully,

Brian Lehrer: The Arizona section was also particularly compelling to me. We did pull out the Arizona section as one of the parts that we read in full earlier in the show, so I'm glad you circled back to that. In fact, one of the quotes that I said earlier that I think is one of the big three quotes from the whole 45-page indictment was when Co-Conspirator 1, Giuliani, is reported in the indictment to have said to the speaker of the Arizona House when pressed for evidence of voter fraud that would lead them to not certify the vote, he said, "We don't have the evidence, but we have lots of theories." Whoa.

This brings me to another thing that I want to ask you in a general way that I think is of interest to a lot of New Yorkers in our audience, and that is just how much former Mayor Rudy Giuliani appears as Co-Conspirator 1 in charge after charge, state after state. How central was Rudy Giuliani to this alleged plot after you've read the whole indictment? Was that extent new to you in any way?

Jill Wine-Banks: I don't think so. I think there were a lot of indicators of his centrality. His public face in this was quite dramatic. His subsequent disbarment as a result of filing fraudulent lawsuits and lying to the court has already been pretty much well-known, so I wasn't really surprised at that.

Seeing the level of detail and the evidence against him, and I don't know again whether you've discussed this or not, but I believe that the six co-conspirators, five of whom we know, the sixth, they deliberately, I guess left it vague and I don't know why they left it vague. Maybe, Brian, you have a theory on why he or she wasn't identified in the same way that the others were clearly identified. I think that all of them will be indicted.

Some of them may end up pleading and trying to cooperate to lower their penalty for their crimes, but the crimes laid out here by these co-conspirators are so significant and so plentiful that it would be derelict not to pursue them in court. The reason they're named here, but not elsewhere, in my opinion, and not indicted here, is that Jack Smith wanted this to go to trial in a speedy way and a trial of one person can go forward much more quickly. These people can be indicted in a separate indictment and tried separately.

In fact, if they were indicted here, the first motion that all of their defense lawyers would make is to sever their case because of the publicity that will be intendant upon the former President's trial and the complications of his trial that they would want to be tried separately. It might be denied and it could end up being a grounds for mistrial of them or for having them reversed on appeal and retried. I think it's a good thing that they are not in this indictment, but I hope they will be indicted.

Brian Lehrer: Would you expect them not to be indicted until after the trial of Donald Trump, which presumably will happen at some point, takes place?

Jill Wine-Banks: No, they can be indicted anytime separately and their case will proceed on a separate trial docket. They will have their own lawyers that will not inconvenience the defendant or his lawyers, and there can be hired enough lawyers or the special prosecutor to have enough lawyers to try them simultaneously or seriatim with the defendant, Donald Trump.

Brian Lehrer: Let me just mention two other instances where Giuliani's name comes up in this again, because I think his role is of particular interest to New Yorkers where it's almost unbelievable to me some of the things that he was at least allegedly doing here. This goes back to paragraph 60 in the indictment, which is in the part that's explaining the false elector scheme.

Again, remember Giuliani has identified here as Co-Conspirator 1, and this says, "December 11th through Co-Conspirator 5, Co-Conspirator 1 suggested that the Arizona lawyer file a petition for certiorari in the Supreme Court as a pretext to claim that litigation was pending in the state to provide cover for the convening and voting of the defendant's fraudulent electors there." In other words, Jill, Giuliani was recommending that they file something with a Supreme Court, not necessarily because they had a case, but so that they could use that politically to say, "Oh, there's litigation pending, therefore we can't go forward with this election."

Jill Wine-Banks: You have it exactly correct. In my copy of the indictment, I have "pretext" underlined and circled, and "to provide cover" underlined, as well as the sentence that follows what you read, which is Co-Conspirator 5 explained that Co-Conspirator 1 had heard from a state official and state provisional elector that, "it could appear treasonous for the Arizona electors to vote on Monday if there is no pending court proceeding." Again, it just emphasizes that they knew that there was nothing legitimate about this, but they were, again, just as the president said, "Just say it. It doesn't matter if you do it. I just need this cover."

He said that in connection with his first impeachment in the call to Zelinsky. He said it in connection with this, which is, "Just do it so that I can work with the Republicans in Congress to get this done." It was all a show. It was all a pretext, all a pretense.

Brian Lehrer: One final Giuliani thing, I said before the break, I was going to come back to a part of the reading that you did from the exploitation of the violence on January 6th, the final section of the indictment. Part of what you read was that Co-Conspirator 1- this is paragraph 119 item D, "Co-Conspirator 1 left a voicemail intended for United States senator that said, "We need you, our Republican friends, to try to just slow it down so we can get these legislators to get more information to you. I know they're reconvening at 8:00 tonight," meaning the Senate after the violence at the Capitol, "but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow, ideally, until the end of tomorrow."" Talking about exploiting the violence, they were trying to use that pause, Giuliani was, to get the process slowed down until the end of January 7th.

Jill Wine-Banks: Right. I would say that when you said they were trying to, they were doing. They were. It wasn't just trying to use the violence and the chaos. They used the gap created by that to make these phone calls to do anything they could to stop the counting of the legitimate votes that they knew were legitimate.

They had talked to governors who had all said, "This is legitimate," and they lied to the fake electors saying to at least some of them, "We will only use this if there is a legitimate reason to use it." That wasn't their intent at all. They intended to use it to create more chaos and more disillusionment, and to have time to challenge and delay. There is a time limit in the Constitution that this vote has to happen. They really were acting knowingly and corruptly in doing everything they did.

Brian Lehrer: Now to some of what our callers learned by hearing sections of the indictment read this morning. Knox in Yonkers, you're on WNYC. Hello, Knox.

Knox: Hi. The whole thing with Mike Pence, that was crazy. I knew that Mike Pence had been pressured a little bit, but I didn't realize the extent to it all the way out to Christmas, beforehand, he was getting all this pressure. I wouldn't exactly call Pence a coward in this because Pence saved democracy here. I don't like Pence. I'm a trans person in the United States. I do not like Pence but if he hadn't done what he did then, we'd be screwed.

Brian Lehrer: Knox, thank you very much for your call. I think it was a revelation to a lot of people just how many times on how many days in the timeline that the indictment laid out Trump tried to pressure Pence or convince him to go along. Scott in Westfield, Indiana, you're on WNYC. Hi, Scott.

Scott: Hey, thanks for doing this reading. Very informative. One thing that I learned, I knew there was pushback towards state legislatures to review the slate, if you will, but I didn't know Trump and his crew were having these covert secret meetings with the unofficial legislatures to send an unofficial slate to Congress to muddy things up. I didn't know there was that covert mission going on by Trump and his co-conspirators. That was new to me.

Brian Lehrer: With the unofficial electors, yes, interesting. The fake electors. Here's a question coming in as a text message, Jill. Listener asks, "Will Trump's lawyers use Giuliani's deranged incompetence," as they put it, "as defense i.e. that Trump was following the legal advice of someone who turned out to be wrong?"

Jill Wine-Banks: [laughs] That is a great question. Thank you, listener, for that question. The lawyers for Donald Trump have outraged me in many ways. They have said they will use a defense of legal advice that you can rely on legal advice.

First of all, that defense fails because he was deranged. He and all of them were deranged because most of them at some point admitted, and the former president or defendant knew that they admitted that their schemes were not within the institution or the Electoral College Act, and because his own White House console and many others were advising him that he couldn't not do what they were telling him that Mike Pence told him, he couldn't do it that it was not within the constitution.

You cannot selectively listen to advice of counsel. At one point, I believe the president says, "Well, I prefer the other point of view." You can't prefer the other point of view when rational people are telling you the other. You have to take into account what is true and what is obvious.Any citizen knows that this is not how it goes, that the votes were cast, they were counted.

You mentioned about Rudy and fraud. Every time he was asked to present evidence, he demurred. He did not have any evidence. The statement that you read, Brian, which is terrific, really shows what he's saying. We have a lot of theories. We just don't have any evidence. That was true and he knew it, and Donald Trump knew it. The overwhelming evidence is he cannot rely on the advice of counsel in this case.

Brian Lehrer: Listener tweets, "Something I didn't realize, an attempted coup but a successful obstruction, six hours. Easy case. He is charged with obstruction, not a coup," writes that listener. Lauren in the Bronx, you're on WNYC. Hi, Lauren.

Jill Wine-Banks: Could I just say to that one?

Brian Lehrer: Yes, real quick.

Jill Wine-Banks: That's a great comment, a very insightful comment because it goes to the heart of one of the other defenses the outrageous lawyers are using is it's an interference with his First Amendment rights. I don't use curse words, but that is baloney. Substitute your own word for that. That's because it simply isn't true that there's any First Amendment interference. The indictment goes out of its way to say he's free to say anything he wants. He's free to even lie. He just can't do conduct that interferes and obstructs. He's charged with conduct not words.

Brian Lehrer: Lauren, in the Bronx, you're on WNYC. Hi, Lauren.

Lauren: Hello. My question really relates to exactly what she just said. What about the foot soldiers? What about the Dinesh D'Souza's who make the 2000 Mules movie and they know perfectly well that it's not true? They're doing it for the purpose of really as foot soldiers. There are a host of other people. Mark Levin, I'm sure you know who the kind of person I'm talking about. Tucker Carlson for that matter, and the people at Fox News who were texting, why are they not suffering any legal actions against them at all?

Brian Lehrer: Lauren, thank you. Those are all media people, Jill, repeating what I guess the special counsel might argue if he was going after them that they knew was false. They're not the president trying to actually get in there or his lawyers trying to get in there and actually flip state legislatures and Mike Pence.

Jill Wine-Banks: Exactly. Of course, the listener's correct, but it doesn't mean that there won't be consequences going forward. I would point out that Dominion won almost $1 billion against Fox News. That's a pretty big consequence for their perpetuating lies.

The First Amendment allows you to go pretty far, but not to cause harm to another. There are several lawsuits. Smartmatic has a similar lawsuit pending. There may be more against some of these other people who lied and caused damage. Some of them may, if they can be linked to conduct that followed because the law under the Supreme Court is that if there's an imminent danger that your words will lead to violence, for example, that's not protected by the First Amendment.

I don't know what will happen going forward, but the special console has to focus on what is right in front of us which is the corrupt behavior of the former president while he was president. That needs a speedy trial that happens before votes are cast in 2024. People need to know whether he is a felon, indicted and convicted, before they vote.

Brian Lehrer: Listener texts, "Thank you for reading the indictment. I have been a close follower of the story, but what leaped out at me from the indictment is that it finally says the loud part out loud-" maybe they meant the quiet part out loud, "-in that we see not just the actions, but their consequences laid out at the beginning in such clear terms at last." Philip in South Orange. Hi, Philip. You're on WNYC. What did you learn?

Philip: Good morning. Thank you. An incredible show, listening to it live. What jumped out at me was a number of times where it's documented that Trump had said, "be peaceful." There's three or four times. It spoke to me about his cunning, his ability to get out of that mob bossy kind of thing, as well as Jack Smith placing it in the indictment to show us really why he's not going for that violent, expeditious conspiracy charge.

Brian Lehrer: Philip, thank you. Jill, comment on that. Did he say peacefully more than that one time in his Ellipse speech on the morning of January 6?

Jill Wine-Banks: Well, there are two references in the part I read. The overall intent and clear message was go and fight like hell. That was the overarching message, but it is a complicated issue that would end up delaying the trial. I think that it is important that this trial proceed without undue complications.

In the era of Watergate we got to the Supreme Court, we were appointed in May of '73. We returned an indictment in March of '74. We had a verdict on January 1st of '75. Having gone to trial in September of '74. In between March and September, we went to the Supreme Court, had an oral argument and an opinion, and got cooperation from the President Nixon by his turning over tapes, so speedy trial meant something back then. Nowadays, with the Supreme Court we have and with everything else, I don't know what's going to happen, so you need to simplify to the extent that you need to.

The charges that have been brought have 20 years, 20 years, 10 years, and 5 years. That's 55 years potential sentence. That is not what anyone would get. There's all these sentencing factors. I'm just saying a 55-year top end is pretty significant for a 77-year-old, so you don't need to add the complicating factors of seditious conspiracy insurrection. Even if they did, there would then be a lot of appellate stuff that would go on for years as to whether it's constitutional to do that, to prevent someone from running for office, so I think Jack Smith did the right thing.

Brian Lehrer: Jill Wine-Banks former Watergate prosecutor, author of the book, The Watergate Girl which just came out a few years ago. Host of the podcasts, SistersinLaw and IGenPolitics, and an MSNBC legal analyst. Jill, thank you so much for lending your wisdom today. We really appreciate your time.

Jill Wine-Banks: Thank you for doing this. I hope everyone really learned a lot from it. It's a great read. Thank you very much, Brian.

Brian Lehrer: That's our reading of the indictment. We hope you learn from it. Of course, it's available lots of places online. You can read the whole thing for yourself.

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