They usually don’t let me do this, so this is like a — we’re good? OK.
It’s weird to hear my own voice through my —
You’ve got a bit of a radio voice.
[LAUGHS]: I do not think that’s right.
All right. Before we start tell us who you are. Like, who are you, why — what have you done in your career.
Well, early in my career I was a writer for “Time” magazine. I decided to become a lawyer. And early in that career I was a federal prosecutor in Manhattan. I focused on public corruption cases. I became the chief of the public corruption unit at a time when we brought successful cases against several major New York political figures. But then I was asked to join the Mueller investigation, and I moved to Washington and worked on that for two years. And now I’m the head of the White Collar Practice at the law firm Cooley.
You’re not someone that I know that well. I mean, during the Mueller investigation I showed up at your house to try and get you to talk. And I went to your door and, your doorbell was broken, and we knocked on the door and I could hear you and your family inside. And I was with a colleague of mine, and I turned to the colleague, and I said, you know what, this is too invasive, we’ve gone too far, this man is inside with his family. And we left.
I didn’t know that. That’s all a little creepy [LAUGHS]:.
That’s fair, totally fair.
But you concentrated in the Mueller investigation on a narrow question — an important question, but a narrow question — of whether Trump had tried to impede that investigation, right?
And what did you find?
As we noted in our report, we found that the president’s conduct during the course of the investigation involved a series of actions that involved attacking the investigation, publicly and privately, trying to control the investigation from his position as President and within the White House. There were efforts in both public and private to encourage witnesses not to cooperate with the investigation. And so those were our predominant findings in terms of obstruction.
And despite finding all of these things that, at the very least was not great behavior, you made a decision about what to do about whether Trump broke the law. What was that decision?
Well, ultimately we decided not to do what traditional prosecutors do when they’re considering bringing a criminal charge. We went down that road for a few different reasons. It was based on our understanding of the role of the president and our understanding of what we believe to be the proper role of a prosecutor.
So you guys basically made a decision not to make a decision, to sort of let the facts speak for themselves and say, look, if after this man, Donald Trump, leaves office and the Justice Department wants to prosecute him, they can do that based on what we found. But we’re not going to make a decision. We’re not going to say whether we think he broke the law.
That’s basically right. And the reason for that is that normally the first step that a prosecutor takes when deciding to bring a criminal charge against somebody is to determine for yourself whether that person is, in fact, guilty. And then you weigh the admissible evidence, you see can you actually prove this case in court, will it stand up on appeal. But here we weren’t dealing with an ordinary subject. The President is the head of the executive branch. Under Department of Justice policy the President cannot be charged with a crime while in office. And that is because simply charging him with a crime, just making the accusation, that would infringe on his ability to be President.
Right. So that leads us to the January 6 hearings and a different set of circumstances because, of course, Trump is no longer President. Explain to me what crimes Donald Trump could be investigated for based on everything we’ve learned from the January 6 hearings.
I think the three main potential crimes that people have talked about and that would be at issue here are, number one, obstruction of an official proceeding, number two, conspiracy to defraud the United States, and number three, depending on the evidence, seditious conspiracy.
Let’s start with seditious conspiracy. What does that mean and how hard is that to prove?
It means agreeing with one or more other people to use force or violence to prevent the law from being carried out. Some of the people who stormed the Capitol on January 6 have been charged with this and it’s for their efforts and their plans to stop the counting of the electoral vote by force.
So basically using violence to stop the certification of the election.
So for someone like Trump to be charged with that would that mean that the government would have to prove that he conspired with those individuals to use violence? Would you have to show that he told them to commit violence? Would you have to show that he actually committed violence himself?
You would not have to show that he committed violence himself. You’d have to show that he agreed with people who were going to use violence or who were planning to use violence to stop the electoral vote count from happening.
So you basically need, like, Donald Trump sitting down with the Oath Keepers and with, like, a map of the Capitol and saying, look, like, this is how you guys should break into the building to stop Pence from doing his certification.
I don’t think you need that much, but you need to be able to prove that the President had an agreement or that he joined a conspiracy to not just have the vote count be stopped but to use force or violence to stop it. And the evidence that’s out on the public record right now I don’t think would support that.
OK, so what about the charge of defrauding the public, defrauding the American people? It seems like just from watching it that there might be a lot of grist for a charge there. I’m thinking of Trump’s efforts to install loyalists at the Justice Department, him pressuring the Secretary of State of Georgia to come up with the exact number of votes that he needed to win that state. It certainly looks to many like he took these acts knowing that he lost the election but was still trying to overturn them anyway. Are those examples of actions that could be used to show that he was defrauding the American people?
Look, there is a crime called conspiracy to defraud the United States, and it effectively means conspiring or agreeing with other people where the intent is to stop or obstruct the lawful function of the government using deceitful or dishonest means.
The difficulty with that kind of a charge here is that it’s a little novel. Conspiracy to defraud is something that’s not itself novel, but applying it to this set of facts as I’ve seen it is something that has not clearly been done before.
Well, then let’s get to that third charge the charge of obstructing an act of Congress. Define that for us.
The proceeding itself would be the proceeding on January 6 where Congress and the Vice President were going to certify the results of the 2020 election. And the crime would be doing something or conspiring with others to do something to obstruct that proceeding and to do it corruptly.
How would you prove that someone obstructed an act of Congress or a congressional proceeding?
At the most basic level, you need two things. You need some action that would impede or would tend to impede the proceeding itself, and then you need corrupt intent. Intent is typically the hardest thing to show in a political corruption or an obstruction investigation. It requires showing that somebody was acting with an improper motive, that he was effectively conscious of wrongdoing at the time he took his action. And here there’s been a lot of evidence about the President’s advisors and lawyers and people from the Department of Justice telling the President that the election was over, that there wasn’t sufficient evidence of fraud to overturn the results of the election. And so that’s the kind of evidence that would get at the President’s intent as he’s continuing to push these claims of fraud even after having been told all of that.
There’s evidence that he was told that Mike Pence did not have the power to, on his own, refuse to take part in the certification or to delay the certification of the votes and that he continued to push Pence to do that. And then there’s the evidence of his conduct on January 6 itself and some of the things he did not do while it was clear that the Capitol had been effectively under siege, and people were telling him to take actions, and he didn’t. All of those are things that would go to helping establish the President’s intent.
OK, so there’s some evidence that could help establish intent here. But as you said, as a prosecutor, you would want to establish intent and action. What would be, putting the facts aside, which we’re not supposed to do in journalism, what would a clear cut example be of an action? If I said, make up an action that shows obstructing a congressional proceeding, what would that look like?
I think like, if, for example, if there is evidence that the President directed Mike Pence’s security detail to not let Pence go to the Capitol or, when he was there, to actually direct them to get him out of there before he could certify the vote that would be an act. It would absolutely have the effect of impairing or impeding the proceeding. And I think, if that was what happened, I think it wouldn’t be that hard to show that the intent was corrupt.
So you need a clear-cut example of Trump doing something that literally impedes this certification.
Not necessarily in that you could have an attempt or you could have a conspiracy. But in the end I think a prosecutor would still need to point to an act, an action that the president either took himself or directed to have been taken that would itself obstruct the proceeding.
Based on what we know, Trump tried to pressure Pence in the days leading up to January 6 to essentially take the certification into his own hands and either decide who won or send the votes back to the states. You have Trump’s actions on the Ellipse where he gives a speech, and he says, let’s all march to the Capitol. And then he tries to go there himself in his own motorcade. And then when the riot is going on, Trump tweets about Pence, criticizing Pence for how Pence did. Unpack those different acts and explain to us why those different acts would potentially get you there or not get you there in terms of establishing that Trump did something to truly impede the proceeding.
I think for each of those acts there are ways to look at them where they would, in fact, have had the tendency to obstruct the proceeding, but they all have their own problems. For example, if the jawboning of Pence is basically a disagreement, and he’s not trying to actually stop the proceeding, he’s trying to get the proceeding to come out in a way that’s in his favor, or hope that by going up there and then it getting delayed, it could buy him some time, that’s different than an action that could actually obstruct the proceeding.
And the other things that you mentioned and that are out there, the speech that the president gave on the Ellipse early that afternoon telling the Secret Service to take away the magnetometers, the tweet about the Vice President when people were already inside the Capitol, these are things where, on the one hand, you can make an argument that they were designed to try to rile people up to then be able to go to the Capitol and to obstruct the proceeding. But they’re also things that politicians generally do. And there’s a defense that this is political speech, that the tweet would be political speech. That the only reason he would have said to not let the magnetometers stay up would be because he wanted to pack the crowd and nothing to do with trying to get people who were armed to then go to the Capitol.
So what you’re saying is that because these actions that he took are sort of braided together with his First Amendment rights it makes it more difficult for those to be actual acts because it’s unclear where his free speech rights begin or end, and his intent to obstruct the proceeding picks up from there. Is that right?
I think when it comes in particular to the speech itself and to the tweet or other tweets that those, he would have a legal argument that it’s core protected First Amendment activity. He’s the President. He needs to be able to talk to supporters. He didn’t explicitly say, let’s go march on the Capitol, and break the doors down, and stop this proceeding from happening. And so there’s a real legal defense there. And factually there’s the defense that he did not in fact say the magic words that would be true incitement. At least he would have an argument that that’s not what he was actually doing.
So if I’m reading between the lines on what you’re saying, it seems like, in terms of these two things you need, intent and an act, based on what we know and has come out at the hearings, there’s probably enough on the intent side. But on the act side, it’s fuzzier in terms of whether there’s a clear-cut act. Is that — I mean, if we’re sitting back, and we’re assessing this, and you’re saying, OK — just do it for us, right? So like, you’re the prosecutor. How much — you know, do you get there on each one?
Number one, I don’t really want to weigh in on the strength of the evidence, in part because I don’t know all of it. And it would be a little bit of shooting from the sidelines to weigh in. But number two, I do think it’s important as the evidence is coming out of the January 6 Committee to realize that there are difficulties here in proving either of these things. There are issues with, are any of the things that the President did or try to get others to do that day, would they really count as obstructive acts? And in terms of his intent, there’s definitely been a lot of evidence that has come out. Does that get you over the hump of proving beyond a reasonable doubt that the President was acting with a corrupt intent? I think these are very hard questions.
Beyond the obvious of, like, wanting to have witnesses in the room for everything and documents backing it all up, if you were the prosecutor here, what would you want to know? What would you really be keying in on to try and understand whether the President broke the law?
One thing that I think I would want to know if is there any evidence that the President was telling people internally, anybody internally, that he didn’t believe the things he was saying. That he knew he had lost and that all of this was effectively a construct to try to stay in power. If the Department had evidence of him saying that to a confidant or to somebody who was in the inner circle, that’s the kind of evidence that I think, if I were a prosecutor in this type of a case, I would really want.
And why does that change things?
I think it goes right at the heart of intent, and it would put a very strong gloss on all of the actions that have already come out through this January 6 Committee process.
So you’re saying by strengthening intent it sort of helps to bolster the acts because their intentions of the actual acts are clear.
Because I think what it could end up showing is that some of the actions might be able to be read in different ways.
If the government could actually show that the reason behind them, the intent behind them was all about trying to stop the certification of the election, that would then change what might be the type of act that could be read in two different directions and read in a way where, actually, that’s the kind of action where the purpose of it was to impede the certification of the election.
So bolstering one can help bolster the other.
After our last hearing, President Trump tried to call a witness in our investigation. A witness you have not yet seen in these hearings. That person declined to answer or respond to President Trump’s call and instead alerted their lawyer to the call. Their lawyer alerted us, and this committee has supplied that information to the Department of Justice. Let me say one more time, we will take any effort to influence witness testimony very seriously.
We’ve heard Liz Cheney talk about witness tampering. Would a witness tampering charge here be more appealing to a prosecutor?
Potentially because it’s more straightforward than some of the other things that are out there. It’s easier for the public to digest, and the law on witness tampering is very clear. You’re not going to be pushing for some aggressive view of the law. Look, I do think factually tying the former President to the type of witness tampering that came up in that congressional hearing, I think, would be a challenge.
But if that were the provable crime, that in some ways becomes easier to explain that no person can tamper with the witness as they’re going and provide testimony before Congress on an important issue.
So it’s cleaner and clearer.
If the facts support it, I think it would be both cleaner and clearer.
OK, so let’s say if prosecutors think they can prove intent, they think they have an act, an action, and they think they can prove the count beyond a reasonable doubt, and they can survive an appeal, and they send that up the chain of command at the Justice Department, it lands on Merrick Garland’s desk in Washington, and he says, OK, I accept at face value what you prosecutors have determined about intent and action, then Merrick Garland has another decision to make. A whole other set of issues to look at. What are those issues and what is that decision?
In this kind of a situation it’s not easy. As I said earlier, when a prosecutor makes an analysis about whether to bring a criminal charge in any case, they have to believe that the person is guilty, they have to have the evidence to prove it, and to have it withstand any challenge on appeal, but then they also have to believe that it’s in the public’s interest to bring the case. Is there a substantial federal interest in bringing this prosecution?
Explain what that means. What does the public’s interest mean to a prosecutor?
Look, in some respects it’s a very straightforward thing that prosecutors consider all the time. Most prosecutors believe that their job is to do justice. And so, of course, what they want to do if they’re going to charge somebody with a crime is not just do an analysis of the facts and the law but also think about and believe that this is the right thing for the country. And they’re factors that are actually listed in what’s called the Justice Manual, which is the guidebook for all federal prosecutors that walk through all of the different factors that our prosecutors should consider when evaluating the public interest in bringing a prosecution. And they include things like the seriousness of the offense, the circumstances of the defendant, the ability for there to be other means of accountability, the need for deterrence in that particular situation. And the hard question is, how do you weigh all these things? And there’s not an easy answer to that. It comes down to an assessment of what you think is right and what you think is ultimately in the interests of the American public.
So what you’re saying is that in our system we’ve entrusted prosecutors with not just the ability to investigate crimes and figure out whether an individual violated the law in terms of whether the facts line up with the law, but then on top of that, whether bringing such a prosecution is essentially the right thing to do. This power that we’ve given prosecutors in our country is just so great that there’s an added element of whether is this in the best interest of the public that every case is looked at through.
And why is it the prosecutor’s job to figure out whether it’s in the best interests of the country and not simply just based on the evidence? Why do they get to decide whether it’s in the interest of the country or not?
In the criminal law, you want prosecutors to have some measure of discretion. You want to have a prosecutor have the ability to say no, to say, you know what, there’s a different forum to try to carry out the best interests of the public here. And I think all this really means is that when you apply that to a president or a former president and somebody who is a potential candidate in a presidential election potentially representing the whole country that you do want a prosecutor to consider the public interest there. Otherwise, you could effectively have your head sort of in the sand and be bull charging ahead, taking a step that could have massive ramifications for the whole country.
Why should that matter? Right, so one of the major tenets of the American legal system is that we’re all treated the same under the law. Why is it that it seems like the bar for someone who’s such a high profile politician or a former president or someone running is higher? Why is that higher? Why is that not the same for everyone else?
I don’t think it’s necessarily higher, but the considerations when you’re talking about a political leader are certainly different and harder because there you have the very clear and important rule that the Department of Justice should try in every way possible not to interfere with elections, to not take steps using the criminal process that could end up affecting the political process. And so I think a prosecutor in evaluating what to do with potential criminal conduct by a political leader has to weigh those things. And those are things that are just not going to be present in the ordinary course.
Does it become so high profile at a point that not prosecuting is as much a political decision as prosecuting?
It certainly could be viewed that way. And one of the things that the Department of Justice has to weigh in this kind of a situation is both what are the potential ramifications of prosecuting, but also the ramifications of not prosecuting. And here, in part because of just how high profile all of this is, if there were very clear evidence of a crime and it was sort of very straightforward and provable, but the Department of Justice walked away, there is a real risk of the American people thinking that there are two systems of justice. And that would be devastating to the mission of the Department.
And in this case, in terms of assessing whether to bring a charge, is the fact that it occurred around the certification of the election, something that we are supposed to hold so sacred in this country and our democracy, does that weigh in terms of look, this is a really serious event, and because a really serious event led to complete mayhem on essentially one entire branch of government that a charge should be brought? Or, I mean —
I think that shows exactly why it is so important to get this right. And Merrick Garland has said publicly that he’s effectively committing all of the resources necessary to get to the bottom of what happened and to hold people accountable for it. I think we should take him at his word. But without question, what happened on January 6 was horrendous for our country and for our democracy. You certainly wouldn’t want to look away if there’s criminal wrongdoing there. But you also want to make sure that the cases that you bring are strong and are the right cases to bring.
But like, also the issue is, look, if we go to trial and we lose, the consequences of that could be just as great for the country, right?
That is right. And that is one of the reasons why, before bringing criminal charges at this level as part of this investigation, the Department of Justice is going to want to make sure that their cases are as bulletproof as humanly possible. One possibility to consider would be whether it would make sense to delay bringing a charge until after the 2024 election. The upside of that is that you potentially are not interfering in the actual electoral process and having a potential trial or pretrial motions right in the middle of an election. The downside is that you would still have all kinds of talk and chatter about the presidential candidate being under investigation. And if he wins, then you have an even more difficult decision. Do you then bring a charge after the election is over against a candidate who won?
So if we look at the whole landscape of this thing, in your analysis, it seems like to me that bringing a prosecution against Donald Trump would be difficult. It was difficult when he was in office because he was President. It’s now difficult because he’s out of office and may run for president. Maybe you have to delay this prosecution until after the 2024 election. If it’s so hard to prosecute a president or a former president or such a high profile politician like this, why would we even investigate it anyway?
I think if there’s evidence of criminal wrongdoing and it’s a federal criminal wrongdoing, it is the job of the Department of Justice to investigate that. And in the end an investigation such as the one being done by the January 6 Committee or an investigation like what we did under Special Counsel Mueller there are forms of accountability that are vindicated even if criminal charges are not brought. One of the great things that the January 6 Committee has been able to do has been to show in much greater detail what was actually happening on January 6, not just inside Congress and among the people who stormed the Capitol, but also inside the White House at that time. And I think all of the American public are better for having seen these facts and knowing what is out there.
If ultimately that doesn’t result in a criminal prosecution of the President or any of his top advisors, that doesn’t mean that there hasn’t been some real good that has come out of the January 6 Committee.
Andrew, thank you so much for coming in to talk to us today.
It was a pleasure to be here.
Look, no person is above the law in this country. Nothing stops us.
Even a former President?
No — I don’t know how to — maybe I’ll say that again. No person is above the law in this country. I can’t say it any more clearly than that. There is nothing in the principles of prosecution in any other factors which prevent us from investigating anyone, anyone who is criminally responsible for an attempt to undo a democratic election.
The January 6 committee’s next hearing is scheduled for 8:00 PM tonight.
We’ll be right back.
Here’s what else you need to know today. A bipartisan group of senators has reached a deal to modernize the 135-year-old Electoral Count Act, the law that President Trump sought to abuse on January 6 to remain in office. Their proposed legislation seeks to guarantee a peaceful transfer of power from one president to the next by, among other things, clarifying that the vice president’s role in certifying electoral votes on January 6 is purely ceremonial.
And on Wednesday Russia expanded its territorial ambitions in Ukraine saying that it wants to recapture land in the country’s south. That’s a reversal from a few months ago when Russia said it would only seek to capture territory in Ukraine’s east. But so far it’s unclear if Russia can follow through with the threat.
Today’s episode was produced by Jessica Cheung and Asthaa Chaturvedi with help from Stella Tan. It was edited by Michael Benoist, Lisa Chow, and Paige Cowett, contains original music by Dan Powell and Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.
That’s it for The Daily. I’m Michael Barbaro. See you tomorrow.