I appeared twice this week on the NBC LX news show.
Interview, January 8
(This transcript was generated from the automatic captions. I edited it, but you can expect errors)
My commentary in red 🙂
Q: “Let’s set the backstory here. Is this committee just kind of fact-finding, or is it supposed to find and announce things that could lead to criminal charges?
Congress can, and probably will, make criminal charges to the Department of Justice, but that isn’t the point of the hearings, and if we start thinking that it is, we may miss the goal.
Investigating what happened and putting the truth in front of the American people, and getting Americans to engage in a dialogue about the dangerous elements that led to the insurrection is the goal. That’s not the goal of a criminal proceeding.
As an aside, I’ll mention that the task of the DOJ is considerably harder: It’s easier to show that behavior is reprehensible and morally wrong than it is to collect evidence to show each element of a crime beyond a reasonable doubt.
So I think it’s important that we separate these functions.
Q: I think that’s an important point. You mentioned getting the American people to engage, but so much of that engagement, at least from one side, is directed at Merrick Garland. He’s catching a lot of heat on social media for not doing enough. Is that a fair assessment, or is there another story behind the scenes, behind the headlines?
I don’t even think it’s behind the scenes or behind the headlines. I think it’s happening right out there in front if people know how to read it and understand it.
For example, the Department of Justice has repeatedly said what it is doing: It is starting with the obvious crimes right in front of it, assaulting a police officer, destroying property at the capitol, starting basically at the bottom, and working its way up.
This is different from what a congressional investigative body will do. But this is what the DOJ has said it’s doing. It works its way up when facts lead to other facts.They started with the foot soldiers or the bottom rung.
The DOJ has now, in connection with the insurrection, indicted and gotten guilty pleas from leaders of these white supremacy militias.
That should be a big deal.
Again, they’re working their way up. We have evidence in the public reporting that the DOJ has issued subpoenas asking for communications with Donald Trump. A subpoena issued to Peter Navarro included a demand for communications with Trump. They’ve also issued subpoenas looking at fundraising.
A Congressional committee goes right for the top. If you are only focused on the top, you can miss some very important things that are happening.
Q:Â A lot of people out there are wondering how far this is going to go. Do you think there is a world in which Donald Trump or members of his inner circle could actually be charged with a crime?
A: I do. I think what people have to understand is that a criminal investigation and any criminal proceedings are not as simple as they look. Trump is very good at shielding himself. Everything he said on the eclipse on January 6 when he was riling up the crowd, he points to and says there is nothing to indicate that he intended violence. He said, for example, “People say fight all the time.”
It’s always easier to get the people who committed the crime on camera in front of witnesses than it is to get the planners. It’s easier to get the murderer than the person who hired the murderer.
It’s so much harder than it looks to penetrate the layers of insulation. We know this from the Godfather: The mob teaches us how this works. The top people in a mob give their orders in private, and they don’t put things in writing.
So it’s a lot harder to get to these people than it looks. But there is every indication that the DOJ is working its way up carefully.
One example: It’s hard to prove guilt beyond a reasonable doubt in a criminal proceeding. What the DOJ is managing to do right now is get guilty pleas from people who are up from the bottom — not bottom rung. They’re pleading guilty and offering to cooperate. This is huge because it’s a lot easier to get to the people at the top if the people in the middle are cooperating and turning over evidence.
Q: I think that’s something most people can understand. As you were going through your answer we were showing these clips from January 6. Can you really blame people who saw what happened that day and here we are a year and a half later, and we have midterm elections around the corner, can you really blame people for being upset when they see people going on probation, getting a slap on the wrist, some of them are even running for office right now? What do you say to the American people who are seeing this and becoming impatient?
The first thing I say is that the criminal justice system is not designed to solve a political problem.
As it is, we have a very large prison system, but if it’s your first offense and you damage property, you don’t get a huge jail sentence.
There is no doubt in my mind that Donald Trump stirred up that crowd and got them to attack the Capitol. It’s a different matter to prove that beyond a reasonable doubt.
As far as the impatience, if you compare this to similar investigations and how long they take, this is going quite quickly. The Department of Justice has said this is one of the most labor-intensive, resource-intensive, complex investigations in our history.
So they’re working their way up, trying to be careful, getting all the evidence they need so that they are not in a situation where a person gets acquitted at a trial. We saw what happened with Kyle Rittenhouse. O.J. Simpson was acquitted.
They don’t want to hurry it.
They can’t start at the top and say, “We all know he’s guilty.” The rules of evidence don’t work like that. To come in at a criminal trial, evidence has to meet certain standards. “We all know he did it,” isn’t enough to get a criminal conviction.
As far as impatience, some of it comes from believing that the criminal justice system can solve a political problem. You can’t put them all in jail. You can put anyone who committed a crime in jail, but are you going to put everyone who was rooting for them in jail? The low-level offenders will be out soon, anyway.
With fascists or these extremist movements, there will always be more people coming up. To take an example, the fascists at the end of World War II came to horrible ends, but fascism came back.
The idea that an indictment is going to sway an election strikes me as a little bit naive, and maybe hopeful that some magic bullet will do our hard work for us.
Q: I think what’s on the mind of a lot of people is if the DOJ is only going to take cases they are sure they are going win, they’re not going to take a case all the way up to the top.
(Note: He wanted to wrap it up there, but I interrupted to explain.)
They have standards they follow, and that is not the standard. When they bring an indictment, the standard is that they must believe they have evidence beyond a reasonable doubt to prove guilt.
When they believe they have the evidence to prove guilt, they bring the indictment.
So I don’t think it’s true that they only bring indictments they think they can win. They bring indictments when they have evidence that meets a certain standard, and what they’re looking for right now is evidence that meets a certain standard.
(At this point he was truly annoyed, and made one more comment)
Q: I guess you could say that evidence that proves beyond a reasonable doubt would be an indication that they think they can win the case.
(He got the last word!)
Then, they invited me back for the next day!
Interview, June 10
The clip is here.
Q: So I want to ask you flat out: How crucial are these hearings to preserving our democracy? When it comes to protecting democracy in this country, how important are these hearings to doing that?
A: Vital. It is important that the American people understand exactly what happened, why it happened, and the entire build-up to the insurrection.
Q: Now, as somebody who follows the news, I’m sure you do, too, I’ve seen many of the photos. I’ve heard a lot of the things that were played yesterday. But was there anything that shocked you? Was there anything that surprised you from yesterday’s hearings that were 2 hours long?
A: Yes. Actually, there are a few things I found very interesting
The first was that the committee claims to have direct evidence about Trump’s state of mind during that lengthy period of time he was silent while the violence was unfolding. They say they have direct testimony from witnesses who were there and who will testify that Trump was angry when people told him to call off the violence. Someone will testify that Trump said that Pence “deserved” the wrath of the mob, and he said that the protesters, the insurrectionists were doing exactly what they were supposed to do.
If someone comes forward with direct testimony of his state of mind during that 187 minutes of silence— that’s crucial.
Q: Yesterday you spoke with my colleague Eric and you said there was a possibility that Donald Trump could face some charges. So after yesterday’s hearing, I assume, based off what you said, that you still believe that or is that been changed in any way? Strengthened, reaffirmed.
A: I’m interested in the direct evidence that would be necessary to show that (as you said in an earlier clip) that when Trump said “go fight” he actually intended for that violence to happen.
And there are so many possible crimes here that I would be surprised if nothing is brought against Trump. Even something like campaign fundraising based on a lie is fraud. So if he knew that the election wasn’t stolen and he was using this as a campaign fundraiser that’s fraud.
Q: And what would happen if charges were brought? Theoretically, and of course, it depends on what those charges are, of course. But how would that change everything, politically speaking? And in terms of, you know, our democracy, if a former president was charged with whatever crime it ends up being?
Well, I think it’s very hard to predict. I think there is a tendency to believe that indicting Trump for crimes will somehow end the danger of these extremist groups. I think that’s probably wrong. It could end up stirring up even more anger. Now, these are not reasons for not bringing charges. But there might be a lot of anger.
We do have separate information bubbles where certain people have one set of facts and many other people have “alternate” false facts—so charges could end up being very divisive.
Also, it’s important to remember that an indictment is an accusation and that what follows is a trial. And trials are unpredictable. I would anticipate that, whatever the result is, the right-wing extremist propaganda machine will spin it in very dangerous ways.
We’d be in a new territory and there could be a lot of anger—which is one of the reasons it’s important for the American people to have a pretty good sense of what happened because unlike these congressional hearings, the purpose of a criminal trial isn’t to put the truth in front of the American people. Criminal trials have a different purpose.
Here’s one more prediction: We know from four years of the Trump era that a trial would probably turn into a media circus. Trump likes the spotlight. I have a hard time imagining Trump cutting a deal to avoid a trial. I would imagine he’d want to go down as a victim.
It’s boggling to consider what might happen.
Q: When I, I mean, just like, zoom out and I look at the bigger picture. This whole thing is mind-boggling that we’re even having this discussion and this whole thing even happened. Was there any point, though, when you were watching these hearings when you were like, OK, is this getting politicized? Politics is injected into something that should be, as you said, only about the facts? I mean, inevitably, there’s going to be some political theater in all of this as well. Right?
I thought the committee did a very good job of keeping it not political. The witnesses so far are not radicalized Democrats or left wing radicals. I mean, we saw Ivanka Trump say that she believed Barr when he said that the election was not stolen.
Ultimately, if Trump is brought down, it’s going to be by members of his inner circle. As I talked about yesterday, the mob boss at the top insulates himself with layers and if the people closest to Trump are willing to protect him, it gets very difficult to get to him.
But the witnesses that we are hearing, like General Milley, were part of Trump’s inner circle. Trump appointed Milley. I heard someone say Barr is a member of the deep state! Of course, anyone who speaks against Trump will be denigrated that way. But these are insiders.
I opened by saying what surprised me is the promise of testimony from Trump’s inner circle. If Trump White House insiders people testify against Trump, that can’t be partisan.
Liz Cheney is a Republican. I thought one of her strongest statements was when she talked to her Republican colleagues and said, “One day Trump will be gone, but your dishonor will remain.”
So I thought that what they did particularly well was avoid politicizing this.