Impeachment Trial Analysis: The Line Between The Law And Politics

Brian Lehrer: It's Brian Lehrer Show on WNYC. Good morning everyone. I hate to start the show with the words none of this might matter but none of the dramatic revelations about the January 6th insurrection coming out at the impeachment trial might matter to the outcome. Some of them are genuinely new this week. Some of them are just new to a lot of people's awareness, but we're going to go over a few and then we'll talk to former US attorney Preet Bharara and see what he thinks about these and other things.

The biggest new thing to my eye is that even if you've decided that former president Trump didn't originally incite the insurrection once he was back at the white house knowing it was taking place and taking place on his behalf, he may have acted on in a new way than previously understood. He certainly didn't demand that the writer cease and desist. At very least he watched it on TV as a very interested observer without immediately trying to make it stop, we knew that, but there is new evidence that emerged Wednesday night that Trump may have tweeted an attack on Mike Pence after he learned that Pence was in danger in a phone call with Alabama Republican Senator Tommy Tuberville.

Now, Tuberville revealed that he became aware that the vice-president was being escorted to safety while he Tuberville was on the phone with Trump and told Trump that right as he was learning it. Right as Pence was being escorted to safety or just after it. As POLITICO reports it, the existence of the phone call had been previously reported but the detail that Tuberville informed Trump, his vice-president was in danger is a new and potentially significant development for house prosecutors seeking Trump's conviction.

It occurred just around the time that Trump sent a tweet attacking Pence for not having "the courage to unilaterally stop Joe Biden's victory" that from POLITICO. What's this timeline? While Pence was removed from the Senate chamber at 2:14 PM, Trump's tweet attacking Pence came about 10 minutes later. If Senator Tuberville was on the phone with Trump as Pence was being removed and Tuberville was telling Trump that at that moment. Wow, could even Donald Trump have been that heartless and self-interested as to tweet an attack on Pence afterwards. In the impeachment arguments yesterday democratic congressmen Joe Neguse of Colorado seemed to refer in his closing remark to that fact.

Joe Neguse: The fact that he actually further inflamed the mob, further inflamed that mob, attacking his vice-president while assassins were pursuing him in this Capitol more than requires conviction and disqualification. We humbly, humbly ask you to convict President Trump for the crime for which he is overwhelmingly guilty of because if you don't, if we pretend this didn't happen, or worse if we let it go unanswered who's to say it won't happen again.

Brian: Democratic Congressman Joe Neguse of Colorado and his closing remarks shortly before the end of the house impeachment managers presentation to the Senate yesterday. Let's start there with Preet Bharara former US attorney for the Southern District of New York, which is fancy justice department speak for Manhattan and the Northern suburbs up to around Poughkeepsie and the Catskills.

He was appointed by Obama, famously invited to remain in the job by Trump, until Trump fired him. Has since gone on to teach law at NYU wants a podcast called Stay Tuned with Preet and write a book called Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law. Now there's a podcast version of the book being launched. You can read or listen to doing justice. Preet, always great to have you here. Welcome back to WNYC.

Preet Bharara: Thank you, Brian. Great to be here.

Brian: Can we start with that Tommy Tuberville phone call revelation? Have you seen the details of that enough to draw a conclusion about the timeline about whether Trump tweeted against Pence after he knew Pence was in danger in the Capitol? I'm not sure quite how buttoned-down that timeline is.

Preet: It's not perfectly buttoned-down and you saw there was an objection made by Senator Mike Lee from Utah about the veracity of what was reported about the mistaken call. Even if you don't have that timeline perfectly buttoned-down, I think the house managers did a great job of showing just how callous Donald Trump was to the plight not only of his vice-president but every member of Congress.

Even after the attack was underway. Even after it's clear he knew that it was violent. Even after he knew that members of his own staff current staff, former staff were all clamoring for him to tump it down, I think that's powerful evidence of his guilt and impeachment overall even if that particular timeline is not 100% perfectly buttoned-down.

Brian: Listeners we can take your thoughts on the impeachment proceedings so far. Anything you want to say or ask Preet Bharara 646-435-7286, 646-435-7286, or tweet @BrianLehrer. Preet, everyone has said a million times, "This is not a court of law with a real impartial jury. It's a political process with senators with their own interests." Even in that context if it's further proven that Trump egged on the insurrectionists with anti-Pence tweets or other things how could none of this matter and people vote to acquit the president of incitement of interaction?

Preet: Well, you should maybe have on instead of me who I think is a reasonable observer of the facts and instead have on some Republican senators and ask them how they in good conscience can vote against conviction. One of the things that I expect that you'll ask me and that was making a lot of news last night was apart from all the other conflicts that some of these jurors-- All these jurors are in fact arguably victims, some of them may be complicit themselves.

They're all certainly witnesses because many of them were in the Capitol at the time, but you have these reports that three Republican senators were actually meeting with the defense team. Lots of people are throwing up their hands and saying, "Can you imagine jurors meeting with the defense lawyers about their strategy in a traditional trial?" No, you can't. Even though it's the case--

Brian: Lindsey Graham and two others. I did scratch my head at that story, but I also wondered, "Well, are the house impeachment managers who were Democrats not having any communication with democratic senators who are also from their side going on TV and seeming like they've made up their minds?"

Preet: I saw some Senator from the democratic side-- Dick Durbin, I think last night on television saying that that's not happening. That's his assertion. I guess the only point I would make is there are a million things that cause a rash of conflicts in this proceeding. Like I said the witnesses misread the jurors their witnesses, their victims, their accomplices in many cases. We don't know what the standard of proof is. We don't know what the elements of the crime are.

Everyone has a different version of what they think their duty is, but in order to show some rational amount of fairness and neutrality, even though it's not a regular trial, there's some things that I think are more glaring than other things. Brazenly meeting with the defense lawyers to help them with their strategy seems like a little bit of a bridge too far, even though it doesn't cause a mistrial. There's no sanction. You can basically do anything in this proceeding and the trial will go on.

Brian: One of the things that I gather the Republican or the Trump defense team will argue, this is speculation that I saw on Fox, is that you can't convict the president of incitement to insurrection just because some people interpreted his words as incitement to insurrection if he wasn't being direct about it.

For example, MSNBC yesterday was highlighting text messages and defendant testimony from alleged rioters in cases where they're the defendants and they presented, for example, texts from an accused writer allegedly from the militia group the Oath Keepers, someone named Jessica Watkins a military veteran. She texted in November, "Unless the POTUS himself activates us, it's not legit." The POTUS President of the United States Trump has the right to activate units, two units, and then on December 29th. she texted, "We plan on going to DC on the 6th.

Trump wants all able-bodied Patriots to come on." Of course, able-bodied suggests they're going to engage in something physical. She wrote, "If Trump activates the insurrection act, I'd hate to miss it." She obviously didn't think he'd invoke the insurrection act against the insurrectionists, but maybe against some other groups who maybe they hoped to draw it, I don't know. It certainly tells us that people interpreted Trump's words from November on when he was saying, "This is a stolen election and I won by a landslide and I'll never concede," as an invitation to commit an insurrection, but does that prove that Trump made one?

Preet: I think it's part of the context. I think it's part of the story. If you say something and lots and lots of people, not just one or two people at the margin, but lots and lots of people interpret it as a call to arms and a call to action, I think that's relevant to the proof. Obviously, the most relevant proof that the house managers did a good job of marshaling is what Trump said and what was in the mind of Trump as to his expectations and the foreseeability of the idea that people would be engaging in violent action.

You had plenty of that. People forget that this is not just about the speech he made in the late morning, early afternoon of January 6th, as much as his lawyers want to make that the narrow focus of the impeachment trial. It's about everything that went on for a long time and the signs of violence go way back. One of the house managers did a great job of talking about Donald Trump's reaction when supporters of his, some of whom also participated in the insurrection on January 6th, tried to run a Biden-Harris bus off the highway, a violent act that Donald Trump not only laughed off but then retweeted about it in a positive light.

There was the Georgia election official who said by perpetuating this big lie that the election was stolen from Donald Trump is going to get somebody killed and he was right. I could go on and on. I don't want to repeat the entire house manager's presentation, but time after time after time, Donald Trump understood that perpetuating this big lie was going to cause people to be violent. His supporters had been violent. He had encouraged their violence. He has never condemned their violence. When you ask them to come at a particular time on a particular day for purposes of overturning an election, I think it's very clear that his words made the difference.

Brian: There were things that came out from the house impeachment managers' mouths that were for emotional impact and to increase the outrage, the sense of victimhood that certain people who may not even have been the members of Congress were we're forced to experience like Senator Chris Coons, again, I did not see this in a house manager's presentation, but I guess it was there because I saw Senator Coons talking about this on TV, referring to how black house custodians, Capitol custodians had to clean up blood and feces left by white supremacist rioters.

That's maybe quite a victim impact statement if you were in a regular court of law. There's evidence that was presented as I understand it, that the plot to kidnap the Governor of Michigan Gretchen Whitmer, which was foiled by the FBI was a dress rehearsal for January 6th. All of those things might matter to a jury. I'm curious how frustrating for you it is as a former prosecutor where it really is about the law, an impartial jury to see what looks like the trial, but it's really just politics.

Brow: This is the second time around. I think maybe as a personal matter, I got the frustration out the first time around and I did a bunch of writing and speaking about how different from an actual trial it is, but it makes sense. I think it makes even more sense in this context that it'd be a political act. This is what the founders wanted to have happen. When you have an abuse of power by the head of one branch of government, the president, maybe a court of law is not up to the task of dealing with it. It still may because there's still criminal conduct that could be prosecuted.

If you're talking about the sanction of not just removal, but disqualification from future holding office, which a criminal case can't accomplish, it makes some sense that a co-equal branch of government in political fashion, given the constitutional crisis is the body that makes the decision to check and balance that other branch of government. It's frustrating. There's lots of things that seem unfair if you're considering it to be a traditional criminal trial or even civil trial, but the crisis is a political one, not necessarily a criminal one.

Brian: Ronald in the Bronx, you're on WNYC with Preet Bharara. Hi, Ronald.

Ronald: How are you? I'm concerned about the closing arguments that the Democrats are going to be making. I think they should be appealing much stronger to the Republican senators. In particular, I think all of these videos are kind of numbing. It looks like reality television. I'm wondering if it's possible that they could actually have in front of them the actual news source, some handcuffs, or even photos of all these congressmen hiding under their desks and being seconds away from physical harm instead of just the videos and all of these arguments they've been making this morning which are--

Brian: The Republicans, sorry, the Trump defense team is going to go today, this afternoon, the Democrats finished yesterday, that was opening arguments. There may be more closing arguments, but my impression is that they were using a mix of news footage from the day and videos that were revealed, that was some of the new materials, certainly, that we've been talking about all week. Videos and audio showing just how bad it was. I think that mix was there, anything to add to that, Preet, briefly?

Brow: No, I think that's that's correct. That was my sense. The caller talked about reality television. It was reality. That's what was happening and I think it's always important in any case to talk about not just what led up to the event, but to have people explain the crime and explain the harm. I don't know that there's video of every single aspect of what happened that day. I think some videos are still coming to light as we speak, but I thought they did a pretty good job of, as you say, presenting a mix given the timing and their goals.

Brian: Jacob in Nassau County, you're on WNYC. Hi, Jacob. Thanks for calling in.

Jacob: Hi, thank you so much for taking my phone call. It's an honor to speak to you, Mr. Bharara. I had a question I'd like your thoughts on, we all try to be impartial and open-minded to both the defense and the prosecution. I know one of the points that the defense is going to make is that politicians always dial up the temperature and we don't generally hold politicians responsible for their supporters once they dial up the temperature, Bernie Sanders said that Republicans are going to kill your grandmother, he's not responsible for his supporters who [unintelligible 00:18:25] baseball game.

President Obama said that the police are systematically racist, he's not responsible for his supporter shooting six cops in Texas or when Maxine Waters says that her supporters should actively physically confront people who she disagrees with politically. I'd like your opinion, Mr. Bharara, on what exactly is the difference between what President Trump said and politicians always saying-- Didn't Governor Cuomo say that we should beat up something?

Something about that. That's just how a tough new Yorker talks. If Donald Trump walks down the streets of New York, we'll show them something about how real New Yorkers fight. What's your perspective on the difference between what President Trump said and people always dialing up their political-- The rhetoric and the temperature?

Preet: I think that's a great question. It's a matter of degree. It's a matter of the amount of time someone said something, the context, the amount of warnings people have gotten and those are interesting examples that you pointed out. They seem to be one-offs. With respect to those particular politicians, in Donald Trump's case, it was over and over and over and over again. As I've said, there were examples of violence that he knew about, that he condoned, that he didn't condemn. He had an understanding because the executive branch and law enforcement officers knew that people were coming to the Capitol on January 6th, preparing to engage in violence. Not only that, Donald Trump as the house managers argued, had something to do with the choosing of the date.

Initially, they were going to be having some kind of protest on January 21st or 22nd. That seems to have been moved at the urging of Donald Trump to January 6th the date that the counting of the ballots was taking place in the Congress. Then he had some role according to the house managers in changing the route so that they could March to the Capitol. Then after the event happens and it's underway, as Brian began the interview instead of expressing remorse, instead of calling on them to stop, instead of trying to protect his vice-president, he seemed to rejoice in this idea that people were engaging in violence at his behest and trying to overturn the election.

He didn't do much of anything for two or three hours. Later in the evening, he told his people who had engaged in this violence, who had threatened his vice-president, "I love you, you're Patriots." It's the combination. I take your point, but it's the combination of comments and statements and warnings that he ignored plus his conduct that day, plus his conduct after the events happened, I think all lead to the unassailable conclusion that he incited.

Brian: Jacob, thank you for your well-framed question. We'll see if the Trump defense team does as good a job this afternoon of likely trying to make that same point in an argument that relates to your question, call us again. To that point and anticipating that exact argument today, kind of the free speech argument. First amendment argument, democratic house manager, Jamie Raskin to Maryland yesterday cited Voltaire the 18th-century French philosopher in arguing that Trump's free speech is not a good defense for the way he riled up his supporters. Listen to this.

Jamie Raskin: Voltaire said famously and our founders knew it. "I may disagree with everything you say, but I will defend with my life your right to say it." President Trump says, "Because I disagree with everything you say, I will overturn your popular election and incite insurrection against the government." We might take a moment to consider another Voltaire insight, which a high school teacher of mine told me when a student asked, "When was the beginning of the enlightenment?" She said, "I think it was when Voltaire said anyone who can make you believe absurdities can make you commit atrocities."

Brian: What a great Voltaire quote that I never heard before pre-absurdities that can make you commit atrocities. He anticipated by a few hundred years what we have just witnessed.

Preet: Yes. Look, I thought that Jamie Raskin's preemption of the first amendment argument was terrific and compelling and smart. One of the other things he said is it's very easy for people to just throw out a slogan and mentioned an amendment to the constitution. First amendment, first amendment it's unpopular political speech as Jamie Raskin said, "As if the president of the United States was just some regular guy who did not have special power."

I thought the very compelling example he gave is if a private citizen, if you were I, we might get in trouble with our peer group, but if you and I said we're swearing an oath of loyalty to another country or started trashing America or said it would be one of the-- Floyd Abrams, the famous and prominent first amendment lawyer was making this argument, this example on television the other night. We said that it would be wonderful if China invaded the United States, nothing would happen to you, you could be fired from WNYC.

That's certainly true, but nothing would happen to us criminally, that's part of protected first amendment speech. Now imagine that the present United States who was sworn an oath to faithfully execute the laws said those things. Said, "I'm loyal to Russia, or I am loyal to China," or invited China to invade the United States. He would be impeached forthwith. It would be fine and I think it would be much more bipartisan affair than this is.

Presidents have a special duty to honor and respect the constitution and to protect the country. Just because something came out of the vocal cords and the mouth of a human who happens to be the president of the States, doesn't mean there's no consequence. People get fired from their jobs. That's what this is. This is about removal from office or disqualification from future office, not about separation of a person from their liberty. It's not a criminal case. As Jamie Raskin also pointed out, I thought compellingly, Donald Trump has fired a lot of people for things that they said. There's really no, I think argument here it's just a lot of rhetoric on the part of Trump's lawyers.

Brian: Any statement from my mouth that Preet Bharara even hypothetically attributes to me, do not necessarily represent the views of this host or this radio station.

Jamie: It was hypothetical.

Brian: That's right. Just playing. We will continue in a minute with Preet Bharara. We'll finish up with him. Brian Lehrer on WNYC.

[music]

Brian Lehrer on WNYC with former US attorney for the Southern District of New York Preet Bharara, host of the podcast, Stay Tuned with Preet, these days and have a book doing a host-- Well, he's going to be the author and the host of a book. We'll explain that in a second called Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law. Tell us about this podcast version of your book, Doing Justice. There was already an audiobook version read by you, right?

Jamie: Yes. It's not a version of the book. You can buy the eBook, you can buy the hardcover, you can buy the paperback, you can buy the audio version. This is a bringing to life of six stories from the book in more detail told in the voices of the prosecutors, in some cases, the victims, the investigators, the cops who were involved, who talk a bit more about how they thought about the cases, why they did what they did and so it's a very, very different experience from the book or the audiobook, so I commend it to people's attention.

We have three episodes out, the most recent episode-- You may remember this, I think maybe once upon a time, you may be asked me about this case, where there was a suspicion that an active duty police officer was thinking about kidnapping, murdering, and then cannibalizing actual identifiable women, including his wife. That was a twisting turning tail that is brought to life in one of the episodes of the podcast. I think it gives an additional dimension to some of the stories that I've told in the book.

Brian: Diego in Sunset Park, you're on WNYC with Preet Bharara.

Diego: Thanks for taking my call, Brian. I don't think I'm being overly hyperbolic by saying this is an ongoing crime. You have state governments in Montana, in Arizona, I think in Georgia who are censoring Republicans who have come out against the president. The governor who merely certified the election. He obviously from that phone call attacked Georgia's Attorney General looking to find votes. These people are going to have consequences paid.

If there's a next time, are they going to be as stalwart in their defense of truth when their careers are going to be ruined and their employment is going to be jeopardized? This is an ongoing crime. I think it's too early to exhale to say, "We got over January 6th and now we just got to make him pay the piper." This is an ongoing crime and the stage is being set for things in the future that might happen.

Brian: Diego, I'm going to move on for time and get a response, but he's exactly right Preet. Isn't he-- For people who haven't followed these stories at the state level in some of the swing States like Arizona, where the Republican governor has certified the election has been censored by the state Republican party. Same thing in Michigan, the board of elections member or whatever they call it, who was the swing vote to certify the election has been replaced. If we were exhaling thinking, "Well, at least, a lot of these Republican officials around the country upheld the line for norms, maybe not next time."

Preet: Look, I think the caller is exactly right and that is the reason why in large part the president of United States, the former president was impeached, even though there were only days left. Why do you do that and the Republicans keep making the point, "Well, he's already left office," and the reason for the speed and the alacrity is that he was an ongoing threat because it is an ongoing crime and they did it in seven days.

The reason even while he's out of office, although I think that's constitutional and the argument is being made against it being constitutional. The reason they're still proceeding, even though he's out of office, is that it can happen again and it's happening on an ongoing basis and his supporters can still be riled up and they can still be incited. the spirit of the caller's question and comment is exactly why we're here doing this thing because Donald Trump remains a threat to the democracy that he was supposed to protect and to the American people.

Brian: Another news development is Biden is asking all the current us attorneys appointed by Trump to offer their resignations. That's normal, probably more abnormal was that Trump at first invited you to stay on after you had originally been appointed by Obama, but it raises the question that confuses a lot of non-lawyers and non-politicians. The Justice Department is supposed to be nonpolitical just doing justice, but the attorney general and us attorneys around the country do change with the change of presidents and nobody's going to argue that Eric Holder was politically the same as say, any of bushes attorneys general, or take any Republican or a democratic example.

Preet: I think that's absolutely correct. This will be my first opportunity to say something mildly negative about the Biden administration. I don't love the way they went about this. I've had a lot of experience both investigating the firing of us attorneys, being a US attorney, and being fired as US attorney. I think everyone understands that in the ordinary course as I did when Trump became president, that there's a transition period, and all the US attorneys who have been appointed by the prior administration leave.

I think the way that-- What happened in the Obama administration was pretty good. Some particular people were asked to stay like Patrick Fitzgerald in Illinois and some people already left because they wanted to seek opportunities in private practice, knowing that they were going to be replaced, but that you have some continuity the way that the Trump folks did it was unusual, put me aside, I was a special case.

They decided one day in March of 2017, "Everyone's got to go. They got to go that day," which is a weird thing to do. It's not great for continuity of cases and supervision of cases. Everyone understands that you go to create a date certain by which resignations have to be effective. I don't know that it makes the best and smoothest process. I think you let everyone know what they already know, which is that at some point we're going to have nominees to replace you. If there are particular cases where you're worried about the identity of the US attorney because maybe they've done something that's untoward, you get rid of those people right away on a case by case basis.

I think the other thing that I'll say that's positive about the move and I think important is that in [inaudible 00:32:39] cases, the Biden administration is keeping on the US attorneys because they have somewhat controversial roles. One is the US attorney in Delaware, who appears to be investigating Joe Biden's son, Hunter Biden. He's not messing with that. Then the US attorney in Connecticut will at least continue to investigate the origins of the Russia investigation. Those two things were started under the Trump administration and they will be allowed to proceed, which I think is wise.

Brian: As we run out of time. There are still options, there are still unknowns about the impeachment trial. The Trump defense team will go today. They say they won't need both of the days that they're allotted to make their case, so they'll probably rest sometime this afternoon. Then, I think the question is still open as to whether the impeachment managers will call witnesses. I have a caller on the board, who we don't have time to take, but Stan in Forest Hills, I see you asking the question, "Why didn't the prosecution ask Pence to testify?" In fact they still could.

They can call witnesses, they could subpoena Mike Pence and say, "Were you--" or Tommy Tuberville. Senator Tuberville may be more apt, although he's one of the jurors. I don't know if they could subpoena one of the jurors, but was Trump told about Pence being in physical danger before he tweeted that attack on Pence. Do you expect witnesses? Would you like to see witnesses and what about that particular instance?

Preet: I'm a traditional lawyer and every trial that I've ever conducted or witnessed or overseen has had witnesses. The jurors are given the instruction by judges that what the lawyers say is not evidence. Only what the witnesses say and the documents that are admitted into evidence are evidence. By traditional standards, literally, no evidence has been presented, but this is not a traditional trial. I think part of what's going on politically, in a political sense writ large, is that they're on a clock.

I think they want to get other business of the Senate done. They don't want this to extend so far. I think another point that they keep making is-- There's so much public evidence, people saw and heard things with their own eyes. There's video evidence, we talked about that, that it obviates the need for witnesses in a way that you didn't have last time around and you wouldn't have in certain other kinds of proceedings. Look, they can ask Pence. Look, they asked Donald Trump to testify, he didn't testify. They didn't pursue it. They didn't subpoena him.

I think they think they have the goods that they need, and they don't need to gild it too much with witnesses. I would prefer to see witnesses. I agree. I think it would be terrific. On the particular point, I would love to see additional evidence about the timeline of Donald Trump knowing about Mike Pence being in danger and what his subsequent actions were. I think that'd be very compelling, but I don't think it's necessary.

Brian: Preet Bharara, his podcast Stay Tuned with Preet is ongoing. The new one with stories from his book, Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law, is now being released. It's not all at once. This isn't binge on six stories from the book.

Preet: You can binge the first three. The first three Doing Justice episodes can be binged and then the next three are coming up.

Brian: Preet, it's always a pleasure. Thank you very much.

Preet: Thank you, Brian.

 

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