Happy Scribe Logo

Transcript

Proofread by 0 readers
[00:00:00]

As you prepare to take to the skies again, travel looks a little different now at Dulles International and Reagan National airports, we've implemented new health and safety measures like sanitizing more often, encouraging social distancing, installing plastic barriers and requiring face coverings.

[00:00:16]

So while we may be standing farther apart, we're all working together to help keep you safe. Visit NWA Dotcom Slash Safety to see how we're helping you travel with confidence.

[00:00:30]

Looking for a new podcast you do not want to miss under the influence. I'm your host, Jo Piazza, and I'm taking you into the depths of the Internet, a place that preys on some new mothers while also minting millionaires.

[00:00:43]

Instagram ruins women for a time. Influencers certainly feel the pressure. How could I have a baby and not share it? How come to months to Graham? It's not for influences. It's from the influences.

[00:00:57]

Join me to dive down this rabbit hole and find out how the commodification of motherhood is driving a lot of us to the edge of our sanity. Listen to Under the Influence with Jo Piazza on the I Heart radio app or wherever you get your podcasts.

[00:01:23]

Hey, everyone, John Heilemann here and welcome to Hell and High Water, my podcast from the Recount and I heart radio with big ups to the one and only rizza for our dope theme music.

[00:01:34]

Donald Trump has been out of Washington and out of the White House for three weeks now, but he continues to cast a long shadow over our politics as the nation's capital and the country writ large have grappled with the bone jarring aftershocks of the cataclysmic events of January six, events in which Trump's complicity is extravagant and undeniable. And now comes this week in which the former president and his role in those terrible, terrifying, historic events will be center stage as the impeachment of Donald Trump.

[00:02:03]

Pardieu moves to the trial phase in the U.S. Senate and hence will be the primary topic on this episode of Hell or High Water. And who better to guide us across the front and febrile zone where the 44th president of the United States and the rule of law collide in a pair of dear friends of mine and each other, who in the past four years have gone from being highly accomplished legal stalwarts, well-known and much esteemed among their peers, but largely invisible to the wider world.

[00:02:30]

To cable news, superstars recognize far and wide for their expertise and effervescence, their brilliance and bad asseri. The first is former U.S. attorney for the Northern District of Alabama and currently a distinguished professor of the practice of law at the University of Alabama, Joyce White Vance.

[00:02:47]

The state of the rule of law in America is slowly improving, but this is not the time for any of us to go to sleep. There's a lot of work to do. You need to stay informed. You need to continue to stay in touch with your elected officials because we have some heavy duty work ahead of us.

[00:03:04]

And second is former Watergate prosecutor and author of The Watergate Girl My Fight for Truth and Justice Against a Criminal President, Jill Wayne Banks. The state of Donald J. Trump's most presidential legal jeopardy is significant. He faces a lot of jeopardy, both criminally and civilly. And interestingly, I think some of the civil cases may be more damaging to him, partly because he cares only about money. But going to jail is a very real possibility.

[00:03:40]

You probably know Joyce White Vance and Jill Wayne Banks as two key members of a phalanx of MSNBC legal analysts who came to prominence during the Trump era, a group that includes Neal Katyal, Andrew Weissman, Paul Butler and a bunch of other men, but which was notable for being dominated by women. In addition to Joyce and Jill, there were Maya Wiley now running for mayor in New York City, Mimi Rocha, now the district attorney for Westchester County, Cynthia Oxnam, Barbara McQuade, Kimberly Atkins'.

[00:04:07]

The list goes on and on. For a while, I made an effort to publicly treat these folks like superheroes by calling them the Justice League. But Joyce and Jill had a better name in mind, sisters in law. And now just recently, the two of them, along with Barb McQuade and Kimberly Atkins', have launched a podcast by that name Sisters in Law, which you should definitely check out. The concept is fitting because both Joyce and Jill are longtime female pioneers in what has long been a male dominated profession.

[00:04:36]

Joyce was the first female U.S. attorney appointed by President Obama in 2009, and she gained notoriety in that job for her laser like focus on matters of public corruption and civil rights in northern Alabama. Indeed, she established for the first time a civil rights enforcement unit in that office. In 2011, she successfully challenged Alabama's immigration bill on constitutional grounds. She was involved in key work to protect the rights of Alabama voters and along with Civil Rights Division Assistant Attorney General Vanita Gupta.

[00:05:02]

She launched a statewide investigation into inhumane conditions in Alabama's prisons. Jill, of course, made a name for herself for her work on the Watergate scandal after graduating from law school. She joined the DOJ, becoming one of the first female attorneys in the organized crime section during Watergate. She served on the staff of special prosecutor Leon Jaworski and was responsible for cross examining Richard Nixon's secretary, Rosemary Woods, about the 18 and a half minute gap in the Watergate tapes before Judge John Sirica.

[00:05:30]

And a typical example of the misogyny that Jill faced. She garnered plenty of snarky media attention at the time during the trial for her fashion choices, in particular her penchant for mini skirts. After Watergate, Jill became the first woman to serve as general counsel for the Army under Jimmy Carter and the first female executive director of the American Bar Association. The truth is, I could go on and on about Joyce and Jill storied histories in the law. But what has made them famous is the insight they have brought to bear on the insanely lawless presidency.

[00:05:59]

The presidency just passed of Donald Trump during the Mueller investigation. The first Trump impeachment, they became essential voices, helping all of us who are not lawyers and who don't even play lawyers on TV to make sense of what was going on, what was signal and what was noise and why it all mattered so much in the process. They conducted a great national civics lesson about the centrality of the rule of law and the threats posed to it by Trump. And that is exactly why I am so happy to have them here today to preview the second impeachment trial we were about to see unfold, to explain the power of the case against Trump, the weakness of his defenses and why this trial matters so much, even if, as is all but certain, Trump is acquitted along the way.

[00:06:38]

I want to hear from them about the two point seven billion dollar. That's billion with a B two point seven billion dollar defamation case being brought against Fox News by Smartmatic for the role that Fox News played in perpetuating the big lie about the election being stolen that led to the insurrection at the Capitol, the degree of legal peril that Donald Trump faces beyond impeachment as a private citizen, and the massive challenge faced by incoming Attorney General Merrick Garland in repairing the damage wrought by Trump at the Department of Justice.

[00:07:08]

If the presidency of Donald Trump has taught us nothing else, it is how absolutely vital, how deeply precious and how stunningly fragile the rule of law is in America.

[00:07:18]

And it's that big theme on which I am most eager to hear my friends Joyce, White, Vance and Juline Banks on this installment of Helen Highwater. Smashing windows and beating police officers over the head with fire extinguishers, a bloodthirsty mob attacked the capital and invaded this Congress last Wednesday. They erected a gallows and repeatedly chanted Hang Mike Pence. They stormed Speaker Pelosi's office yelling, Where's Nancy? They brandished the Confederate battle flag and occupied the Senate chamber. They wounded dozens of people, hospitalizing dozens of people, killed five of our people for six hours.

[00:08:06]

They shut down the counting of Electoral College votes.

[00:08:10]

Liz Cheney of Wyoming, the elected chair of the Republican Conference, wrote, The president summoned this mob, assembled this mob and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the president. The president could have immediately and forcefully intervened to stop the violence. He did not.

[00:08:34]

There's never been a greater betrayal by a president of the United States of his office and his oath to the Constitution. Read Mr. Cheney's statement. Let's come together and impeach the president for this high crime against the republic.

[00:08:46]

And that was Jamie Raskin, the lead House impeachment manager in the process of impeaching Donald Trump last month. Today, he will lead a team of managers into the United States Senate and begin the second trial in the second impeachment of former President Trump. And here in hot water today, we have two women I'm incredibly fond of. They are part of a larger clutch of legal analysts that have now christened themselves the Sisters in Law. They have a podcast of that name.

[00:09:15]

But we have a subset of the sisters in law here, my friends, Joyce Vance and Joanne Banks. Ladies, it's fabulous to see you.

[00:09:21]

We love being with you from your vantage your respective vantage points as close students of these matters. How strong do you think this case is? Talk a little bit, just first about the Democratic case that they're going to be making here. I think to a lot of people they look at and just say, well, this is open and shut. Is that your view that this is just an easy case to make?

[00:09:38]

What's your sense of the strength of the case that the House managers like Jamie Raskin are going to be launching today?

[00:09:44]

Listening to Jamie Raskin was, to me, very powerful. And if the vote had been taken at the time, he spoke those words when every member of Congress, including all the Republican senators, felt the threat that was posed to them by Donald Trump, I think the vote might have been to convict. Unfortunately, time has passed and they've somehow rationalize and have walked away from that, which frightens me. I think in a normal criminal trial where you had a jury that actually listened to the evidence, you would have a clear conviction in the Senate where people are not listening to the facts but are making political calculations.

[00:10:34]

I don't know. And the facts, yes, it's an easy case. It's clear cut and there should be a conviction for high crimes and misdemeanors juries. So I tend to agree with Jill. I don't think it's an open and shut case, but I think it's a strong case and a compelling case. And for me, the linchpin piece of evidence is how Trump reacted once the insurrection was underway. If he really had not intended to set that off, there are a lot of steps he could have taken to shut it down.

[00:11:06]

He could have gone out quickly, immediately told his followers, you know, this has to stop, go home. And that's not what he did. He delayed there's a report from Senator Sasse that he was actually delighted by what he was seeing on the television. So it'll be interesting to see if there's any testimony about that. But it's really this reaction that Trump has in his failure to take any action to stop the riot once it's underway. That, I think is the lynchpin.

[00:11:34]

Like Jill, I'm very cynical as to whether or not there will be a conviction. And, look, impeachment is not meant to be a criminal trial. It's completely separate from our criminal justice system. It is ultimately a political decision imposed by a political body. What is so deeply troubling here is that this is not some nickel and dime sort of crime. And I don't mean to excuse fraud by calling it a garden variety. But this is insurrection.

[00:12:01]

This goes to the heart of our tradition of having a peaceful transfer of power. If this is not impeachable conduct, then nothing is. And I fear we won't see a conviction. So we'll get to that in a second. What's the likely outcome is but I do agree, the reported behavior of Trump in the White House at the time we've heard from multiple sources was sort of gleeful in some sense. And we know Trump has demonstrated history of being kind of fond, at least at a distance, of being fond of violence on his behalf, threatening violence.

[00:12:31]

You know, the things he said in campaign rallies about God have to see that person taken on a stretcher. You know, that's a kind of there's a Trump blood lust that we've seen. I don't think anyone was surprised to hear that Trump liked the notion of his people marching up to the Capitol and doing something on his behalf. One of the questions I have for the two of you is, although it sounds like when splitting hairs for those who are defenders of the president, they say, yeah, he liked all of that.

[00:12:55]

He clearly wanted to march.

[00:12:56]

He clearly wanted them to come to Washington. He clearly wanted to stop the Electoral College certification. But did he really want them to breach the walls of the Capitol and kill a police officer? Is that what he wanted? Does it matter whether that's what he wanted? And I know this isn't a legal case, strictly speaking, but does it matter that you could make the argument that he wanted something but he didn't want this specific thing? Does that matter?

[00:13:19]

You know, would matter in a court of law where you would have to prove state of mind and you would have to prove intent. But even in a court of law, under criminal doctrine, you intend the consequences, the logical foreseeable consequences of your actions. And so this didn't happen in a vacuum. This is a president who for some time has known that his mere words could motivate someone like Caesar. You'll remember the gentleman who sent what we're fortunately nonfunctioning explosive devices to politicians and members of the media.

[00:13:53]

There were events in Michigan over the summer that culminated in the indictment of people who wanted to kidnap the governor. So Trump understands the consequences of his words and that they can move people to action. And he spoke and had others speak to a crowd that was dressed in camo. We don't know. I haven't seen footage that let you tell if they were openly carrying firearms, perhaps not in the District of Columbia where that's not permitted, but just from the mood of the crowd, from the conduct of the crowd.

[00:14:22]

I think that there's a good argument to be made here. But you don't have to make that to convict on the impeachment. All you have to show is that he engaged in conduct that was indicative of someone not upholding their oath, that he engaged in high crimes and misdemeanors. And I'll repeat what I said before, if this is not impeachable conduct, then I just don't know what is.

[00:14:42]

I occasionally like when a piece of land makes its way into our vernacular, because having done four years of life in high school, totally useless language, mens rea. Right, right. That's that's the legal thing. That means like state of mind, right? It does. So we find ourselves talking about that a lot. And I guess it gets to the question of Trump's testimony, which was a piece of news from last week, which was, you know, House impeachment managers calling Trump Trump's lawyer, saying, no, he's not going to come.

[00:15:06]

Jill, it's absolutely obvious to me why House impeachment managers wanted Donald Trump's testimony. It's also absolutely obvious to me why Donald Trump's lawyers do not want Donald Trump testify, just as his lawyers didn't want him to testify in the Mueller proceedings and in the previous impeachment. Like no one wants Donald Trump ultimate wild card, who could likely turn into Colonel Nathan Jessup and, you know, basically say, oh, of course, I want to be insurrection.

[00:15:27]

I don't want the resurrection. You need me on that wall, you know? But is it problematic for the House impeachment managers not to have Trump's testimony? And is there anything they could do to get it?

[00:15:37]

Well, of course, they could subpoena him because the Fifth Amendment right against self incrimination does not apply in an impeachment hearing. That's a criminal case rule. But I think that Americans would find it probably distasteful to force someone to testify against themselves. And as you've noted, there's no way he could be controlled. He will testify against himself because he will say outrageous things. He cannot be controlled. So that's why his lawyers don't want him to testify and why I think it might be perceived as heavy handed for Democrats to get them.

[00:16:15]

But you just mentioned this wall. And I just want to point out that he did finally get a wall built, but it was around the entire Capitol complex to protect our government from his mob. So there is that to be said about this insurrection. I hear, you know, a lot of Democrats out there in the country on Twitter and elsewhere saying, subpoena this motherfucker, let's go. Who cares if it's distasteful? All those things are legal niceties.

[00:16:43]

And who cares about how the president feels and who cares what it looks like. This guy should be forced to account for himself in front of this body. You know, you hear that call, that hue and cry in reaction to what played out this past week. What do you think about throwing Paul A to the wind and saying, let's go get him or try to get him?

[00:17:00]

It will be very interesting to see what strategy the Democrats have in mind in this regard. But it's a win win for them really. Either way, obviously, if Trump testifies, it'll be. Wild and unmanageable, I think that there is some risk there that he could further inflame his followers and that's a risk that Democrats need to take into account. But as we all know, right, I mean, nothing's changed since the Miller report. The lawyer who permits Trump to testify under oath is not a very good lawyer who's serving the interests of his client is the nicest way to put that.

[00:17:35]

On the other hand, for the Democrats, though, if the president doesn't testify, they will attempt to draw some inference that it's because he has something to hide. And that's a little bit problematic. You know, you can't do that in a criminal case. You can't draw that sort of inference. But I think here they will use it against former President Trump and they will have so much video, they will have his statement. In essence, they will put his testimony in whether he's there or not.

[00:18:04]

So it's a win win for Democrats.

[00:18:06]

I was going to ask you about that specifically. Jamie Raskin said, you know, we are going to now draw an adverse inference around his guilt in the fact that he's refusing to testify. And again, I'm no lawyer, as you ladies both know, although I occasionally try to play one on TV, a pretty good criminal. I know in a criminal case, that would be outrageous. Right? The notion that you could draw an adverse inference from someone's refusal to testify against themselves would not be kosher in a real court of law.

[00:18:33]

It helps to think about this as this is not a legal proceeding. This is a political proceeding. That's what this is. So I guess the question becomes, you know, is it fair, Jill?

[00:18:43]

It is in a political sense. And I think that even in a criminal case, whatever instruction the judge gives do not draw this inference. People do draw that inference because we all think if you have nothing to hide, you would testify. I think what's interesting about the part of this discussion is that this trial will have witnesses. The last trial didn't because the Republicans were in control and wouldn't allow them. And here you could have a lot of witnesses who will fill in the mens rea.

[00:19:16]

Let's use that again. And if I could just say racist the loquitur, because I've always wondered since law school how I would ever use that term. And don't ask me what it means because I have the thing speaks for itself.

[00:19:28]

Isn't the thing speaks for itself. OK, got where did I put this. So if I remember that. But I think that the witnesses in this case, Joyce Joyce's, mentioned Ben Sasse testifying about his Glee staff members who watched him watching television. But I also want to have witnesses about the January 5th meeting at the Trump Hotel and what was planned there. I also want to have witnesses about how much money was paid to the organizers from the Trump entities, whether it's the campaign or who knows where.

[00:20:00]

I think that changes your perspective of what role he played. And, you know, even if he didn't say go and kill someone, he said, stop the steel, stop the vote, what other consequence could you draw from those words? Anybody listening to those words knows what he meant. He meant go and do it. How were they going to do it? It had to be by a violent disruption of Congress. And that is not something the president of the United States should ever be calling for.

[00:20:33]

And that seems to me so clear on the face of the words, I guess this fellow just said, yes, thing speaks for itself.

[00:20:42]

So there's going to be witnesses. Jill, to your point and voice, to your point, there's going be a ton of video. We know that the House managers have signaled that they're going to play a lot of video of that day. And we're looking at some stuff just this morning for this week's episode of The Circus. Every time you look at the video of the storming of the Capitol, it's still, you know, it hasn't lost its power.

[00:21:01]

Right. And it's still incredibly upsetting and shocking to watch. And now we have, you know, these House members who came forward last week where she had to leave and see who kind of detailed their experiences of their fear inside the building while this was all happening. It's only a month later. It's incredibly emotionally freighted still. And I think it will be obviously very effective in the emotional sense, powerful to marshal that video evidence. And it's also clear that we may see some new video that we haven't seen before.

[00:21:26]

At least that's the indication coming out of the House managers. But the president's lawyer, David Schoen, doesn't like this idea. It doesn't think that we should play video. And I'd like to hear what he had to say. Let's play this David Shonn thing. This is one of the president's lawyers talking about the question of playing video in this trial. We know now, apparently, that Mr. Swalwell and the other managers tend to show videotapes of the riots and people calling in, people being hurt, police officers talking.

[00:21:49]

Why does the country need that now? We would stipulate that there was a riot that went on that day.

[00:21:54]

It was a tragedy. President Trump has condemned violence at all times. Read the words of his speech, calls for peacefulness. This had nothing to do with President Trump. And the country doesn't need to just watch videos of riots and unrest. We need to heal now. We need to move forward. Joe Biden has a platform.

[00:22:12]

Let's move forward with it that responds to the prospect of seeing video from presidents. One of the presidents, I'll call him an attorney for the purposes of this podcast. But you know what?

[00:22:22]

David's an experienced criminal defense attorney. And so he knows that if this were a criminal trial, he could stipulate to a disputed issue and prevent the government from putting on evidence. You can stipulate there was a riot and then the government couldn't play its tapes in a criminal case. But it doesn't work that way in impeachment. And ultimately, it's really disingenuous because one of the most important functions of the impeachment trial is to expose the truth to the American people.

[00:22:50]

There are two juries here. One jury is the Senate, and there are a weird sort of a jury. They were also witnesses and victims that they will pass judgment. But it's also impeachment is for the country. It's for the American people. And the similarity here between impeachment and the criminal justice system is that they're both about making sure that everybody understands the truth. That's a commodity that's been in really short supply in this country for the last four years.

[00:23:18]

And now the senators have an opportunity to reset for their constituents and to say there is truth, we are committed to it. We have to have common shared facts. We might disagree about what they mean and whether we're going to commit. But first, let's understand what happened and what Trump's conduct was. So, Jill, it throws us into the question a little bit of the defense that the president's lawyers are playing that to try to put on here.

[00:23:42]

And there are a couple elements of it and to talk about both of them. There are a lot of people who look at this and say, you know, it's a very simple one article of impeachment. There was an insurrection. The president played a clear role in inciting it, not just on that day, but for a couple of months prior to all of the evidence that will be entered into of the president's conduct leading up to the January 6th events.

[00:24:01]

And as George pointed out, importantly, the way in which he reacted to the events in real time and afterwards. So the president's lawyers have a tough situation here. And one of the things they're saying is they're trying to mount a First Amendment defense, basically saying the president's allowed to have passionate, energetic speech. I saw that. One hundred and forty four constitutional lawyers call that defense legally frivolous. I don't know if either of you are signatories on that document, but that's just come out across the ideological spectrum.

[00:24:30]

Constitutional lawyers are standing up and calling bullshit on the First Amendment claim. But I would like to have you guys chill, starting with you talk about the degree to which you think it is bullshit.

[00:24:38]

OK, so I use different language. I'll go with the frivolous. The First Amendment definitely prevents the government from stopping speech. This is not the government stopping speech. And the speech that is exempted from that is always speech that causes approximate result, an immediate result. And here the immediacy could not be clearer. He said go and march to the Capitol. They did. And this is what happened. And remember, the crowd was carrying, for example, flags that were on Spears'.

[00:25:17]

That's a weapon in plain sight. They were wearing camo. They clearly were set and riled up. And he had worked on that for a long time. So I don't think you can use the First Amendment to say, I can say anything. This goes back to the basic thing you learn in law school. You cannot yell fire in a crowded theater and you can't yell stop the steel to a crowd that thinks you lost the election because it was rigged.

[00:25:48]

It was fraudulent. That is not a sane defense. And the case that people keep talking about, Brandenburg says that you cannot create a statute that says you may not advocate for something you have to have as part of a statute, that it will lead to some violent action. And this had action following.

[00:26:10]

So there is no First Amendment claim here or these constitutional lawyers seem to kind of be making two arguments, very much consistent with what Jill just said. They basically say, first of all, because this isn't a criminal trial, what we're talking about here is high crimes and misdemeanors and whether what the president did violated his oath of office and on those grounds, even if he was I mean, I'll read what he says, regardless of whether President Trump's conduct on or around January six was lawful, he may be constitutionally convicted in an impeachment trial.

[00:26:38]

If the Senate determines that his behavior was a sufficiently egregious violation of his oath of office to constitute a high crime or misdemeanor under the Constitution.

[00:26:46]

They then go on to say that even if this were a criminal trial, no reasonable scholar or jurist could conclude that President Trump had a First Amendment right to incite a violent attack on the seat of the legislative branch or then to sit back and watch on television as Congress was terrorized and the Capitol sacked. That's a pretty concise, double barreled refutation of this argument along the lines of if this is an impeachable conduct, what is? And the flip side of that is if there's a category of speech that the First Amendment doesn't cover, this must be it right there.

[00:27:17]

First of all, doesn't cover all speech. Right. And this is the classic worse than shouting fire in a crowded movie theater. This is something much worse than that, with much worse consequences in a much more toxic and incendiary moment.

[00:27:27]

This is more race, ipsa loquitur, right? I mean, sort of there's a concept in speech where you say, I know it when I see it in the area of obscenity here. We know it when we see it, when we watch incitement so that scholars letter the letter from the academics dovetails really nicely with the arguments that the Democrats make in their impeachment brief, because everyone knew that this would be one of the few defenses that the president's legal team could attempt.

[00:27:53]

And it's just jump. It really doesn't work. It's, I think, worth explaining the situation in the Brandenburg case that Jill talked about, because it's a grand vizier, one of the Grand Knights of the Ku Klux Klan, and he's making a speech, but he's doing it in a setting where there is no one there to follow through on his words. And he ends up getting indicted for the state crime of inciting violence. That's essentially what the crime amounts to.

[00:28:20]

And the Supreme Court reverses the criminal conviction. You can't convict him because there was no immediate violence following. He did not intend to incite people to violence. So this is the point that Democrats and the scholars make. And this is. The fighting issue, if the president's legal team decides to talk about the facts, you know, there are much safer ground if they can stick to these constitutional arguments, the facts are dangerous terrain for them because there's video evidence there, I suspect is a lot more evidence if Democrats are able to get information from the president's aides and people he talked to in the days leading up to the January events, including his conversations with people who spoke at the event on the Ellipse, I think that would be perilous here.

[00:29:10]

Can I add to that? Because there's a couple of things. One, the incitement charge in the impeachment is being used to evade, in a way saying that he said the word peaceful once in his speech so he wasn't intending to incite, which, of course, that logic is ridiculous. But they also charged him with dereliction of duty, which goes much more to that. He didn't stop it and he had every opportunity. He got calls to stop it.

[00:29:39]

And so they can convict on dereliction alone. And the other thing is they're using this constitutional argument really as an out for cowardly Republicans who don't want to admit the facts, which are so plain. And I don't think they should be allowed to use a frivolous constitutional argument to get out of dealing with the real problem that's facing us. And the real problem is, unlike Richard Nixon, where the trial didn't go ahead, once he resigned, he had already served two terms.

[00:30:17]

He could not run for re-election. Donald Trump only has had one. He is a clear and present remaining danger. And so you need a conviction in order to bar him from running ever again. And I think that is something that we ought to stress in the trial.

[00:30:35]

Yeah, and I want to come back to that in one second. But there are two things I want to follow up on. One thing that Joyce just said, and then that thing you just said, though, so let me go back to the thing Joyce said, which is that the defense is on stronger terrain when they stick to constitutional issues. I think what you mean, Joyce, is talking about the other thing besides the First Amendment claims you can't kind of have the First Amendment argument without it's a constitutional claim, but you're going to end up talking about the facts.

[00:30:57]

So that's dangerous terrain. The other constitutional argument is the argument related to this just being an unconstitutional proceeding. The notion that you can't impeach a convict, you can obviously impeach. He was a sitting president when he was impeached, but he's now an ex-president and that somehow there is a constitutional flaw in the notion of trying to convict a former president. And that, of course, was put forward by Rand Paul a week or so ago. But they put this forward to test it.

[00:31:20]

And I think had two purposes. One kind of make the argument explicit and also sort of try to get through that vote, a sense of where people stood and what the likelihood of conviction was by getting people's recorded votes on that. So you've got five Republicans who voted against the Rand Paul measure. And if you end up with a fifty five forty five vote, there have been polls sort of implicit and then explicit point was, look at this. You're not going to get a conviction here, guys.

[00:31:47]

So this is all a waste of time. That's the political argument. There's also the legal argument, which is that this is actually unconstitutional. So I'd like to just talk about both those things. And, Joyce, that you raised it. I mean, what do you say to people who say it's ridiculous, we can't it's just not constitutionally permissible to be impeaching or convicting a president who's no longer in the United States? A view that I will say.

[00:32:08]

Interestingly, it seems like John Roberts agrees with having decided not to sit as a chief justice. He basically said, look, I don't have to preside over this trial. I would have to if we had a sitting president going through this. I don't have to now. And he seems kind of to be signaling the notion that maybe he thinks this is a little bit hinky, what they're doing on these same constitutional grounds. So I'd love for you to talk about that.

[00:32:28]

In general, there seem to be a lot of Republicans who would really like to duck this entire event. And certainly we see that in the Senate with this effort to use a defense that you can't try a president after he leaves office. It's a junk argument for a lot of reasons, but at least to I think there's sufficient to put it to bed. One is that the impeachment happens while Trump was still in office. And there's nothing in the Constitution that says that if you manage to leave office before your impeachment comes to trial, you can't be held accountable for your last three weeks in office.

[00:33:07]

Right. There's no January exception to the president's oath of office. And then, you know, the other thing about this is that the remedy that Jill talks about, permanent disqualification from running for office is something that matters even after you leave. So you can't create a right without a remedy in this situation. What you can't do is say that this remedy doesn't apply once the president leaves office. All the. This constitutional argument is is an excuse for people who are not brave, people who are not willing to put country over party.

[00:33:43]

We've seen it for four years. And and I'll just say, I think at this point, after we've seen armed violence, if you cannot bring yourself to have just one moment where you stand up and vote for what's right, I don't know how you look yourself in the mirror. I don't know how you explain to your children what you've done. But I think you're absolutely right. In that preliminary motion we saw, which was an effort to float the idea that this constitutional argument was the way for Republicans to avoid an impeachment trial may well be where this ends up.

[00:34:17]

And the only thing I can say if that happens, is shame on them for doing it.

[00:34:22]

I want to play one additional piece of sound here only because I think it goes directly to this point. Adam Schiff, who at the end of the first impeachment, when he was doing his summation in the trial a year ago, said, we got to convict this guy because if we don't, he's going to do it again. We've impeached him. We now we've got to convict him if we don't convict. We're going to see bad behavior again. And here we are.

[00:34:41]

We saw bad behavior again. And here's Adam Schiff just talking the other night on television, raising this point again related to the choice that faces the senators in this trial with respect to Donald Trump and barring him from seeking office.

[00:34:54]

Again, it was very apparent after the first trial that if he were left in office that he would seek to cheat again, that he would do great damage to the country. It is equally plain now that if he is not disqualified from running for office again and then we can expect that if he runs in four years, he will put the country through the same hell, through the same lies about the election to the same false claims of fraud. If he loses through the same incendiary rhetoric and incitement to violence.

[00:35:27]

And that is a very direct threat to our country's security. And of course, it does immeasurable damage to our reputation abroad and the health of our democracy. So, Jill, I ask you this question just for our very smart listeners to the Hill, how about our podcast? But who are not lawyers like me? I think there's a lot of like a lack of clarity about how the conviction relates to the potential future disbarment of Trump running again right there.

[00:35:54]

Not the same thing. If they convicted Trump in this impeachment trial, that would not bar him from running again.

[00:36:00]

But I believe that the cases that you need to convict him in order to then move to that step, or is that not even true with these two things are conflated, I think, in people's minds, where the impeachment trial and the keeping him from running again are seen as one of the same thing when they're in fact not. So if you can just clarify that, how those things are related to each other, I think you'll be doing an enormous public service as we head into this trial.

[00:36:21]

The simple answer is that to convict him requires a sixty seven senator vote to bar him from ever running again only takes a majority vote. And it is a separate vote that follows the conviction. It's an interesting question that I've been reading about whether you could bar him without convicting him. And then there's been suggestions that the 14th Amendment could be used for that purpose. I think the easiest and safest and most effective way is conviction, followed by a separate majority vote to bar him.

[00:37:00]

And the fact that Nixon didn't get convicted may be why this president felt free to do what he did. He saw there were no consequences. I've always believed that Nixon should have been convicted. He should have been a part of our criminal case against his top aides. We were all set and ready to amend the indictment to add him as a defendant instead of a coconspirator, as he was currently. And if that had happened, I think that there might have been a warning to future bad actors.

[00:37:37]

I can't say Watergate was a sui generis going to use all the Latin I know event, but then it happened again, only worse this time. And I don't know what the future holds. If he is not barred from office, he can campaign and take people's money, which we now have evidence he's using for his own personal benefit. He's not using it for campaigning. And these are reasons to proceed with the trial and conviction and the second vote to bar him from office, which is allowed under the impeachment clause to the point that Bill raises is, I think still an open question, though.

[00:38:16]

I mean, which is we now think the likelihood of him getting convicted is small, you know, not zero. I mean, who knows? You know, maybe Mitch McConnell will vote to convict even though he voted on Rand Paul's side of the constitutionality issue. Rob Portman, for example, has suggested that his vote in one doesn't necessarily affect his vote in the other. So there's some theoretical possibility that maybe new facts will be introduced, people's minds will be changed in the course of the trial.

[00:38:37]

We don't want to ever say in a situation like this that something is a foregone conclusion for a lot of reasons. It's not the right way to treat a thing like this with this kind of historical constitutional gravity. So, you know, it's not a foregone conclusion. But I think, you know, smart people, people were reading the tea leaves and I've heard where Republicans are on the record here have right to be dubious and skeptical, as you said earlier, that we will end up with the conviction.

[00:38:58]

So that then does raise the question of whether there is a way to achieve that goal to keep him from running again. Does that die if Trump is acquitted or is there some way that that might be revived and in a legally and constitutionally permissible fashion?

[00:39:16]

So there's a technical road to excluding him from holding office via the 14th Amendment, which was a provision that was enacted in the wake of the civil war to keep former confederates who enforce sworn their oath to the United States from again holding office and met with some sort of mixed results and was litigated in court. But here's the underlying problem. If the Congress were to try that route, the problem is that if it was a party line, partisan vote by the Democrats, then I think it would undercut the legitimacy of government.

[00:39:48]

And as much as we want to see Trump never in office again, never to engage in the kleptocracy and tacky autocracy that we saw for the last four years, that's not the way to do it. There is one point at which the 14th Amendment might become a viable path, and that would be if there was a criminal conviction, but a criminal conviction, at least a federal one, would carry some consequences in terms of future office holding of its own.

[00:40:14]

So that 14th Amendment path might become unnecessary. But look, the most important consideration here is the legitimacy of government and rightfully or wrongfully, Trump spent four years casting aspersions on the legitimacy of anyone who got in his way. We do not want to make some sort of a martyr out of him at this point. The whole goal. Is to minimize his influence and his significance so the country can move forward without him. So people need to be very careful about what steps they take.

[00:40:46]

All right.

[00:40:47]

I think it's time for us to take a quick commercial break here. On an however, I will say two last things about Latin, my two favorite Latin phrases, illegitimacy, non carborundum, which means don't let the bastards wear you down. I know that we're not going to do that on this podcast. And when I was a Latin student in ninth grade, you can take the prepositions that we should never be used in the order that I'm about to use them and make a lovely little sentence out of the phrase.

[00:41:10]

It would be Sube, which means always wear underwear. Just that was like a delightful thing in ninth grade when I learned that you could do that. That's a wear or not in wear sense. But, you know, I'm saying no hubby suburbian, illegitimate, non carborundum.

[00:41:22]

Those are our last Latin thoughts of the day here on Helen Highwater. So let's take a quick break and we'll come back and talk about Smartmatic.

[00:41:32]

What's super nutritious, super delicious and a little nutty American becomes the original super nut packed with all the good for you nutrition you need and the flavor that keeps the family coming back for food, recipes and more, visit American bacon dotcom every day can bring changes, challenges and opportunities that can also change your personal or business financial goals and priorities.

[00:41:55]

As a true partner, Sandy's brain bank can make it all a bit easier for someone who really listens, understands and then creates solutions in hard times and good times. We'll always strive to be your advocate today and every day. That's real banking for real life and real business. Visit Sandy Spring Bank dot com slash real member FDIC.

[00:42:18]

President Trump won by not just hundreds of thousands of votes, but by millions of votes that were shifted by the software that was designed expressly for that purpose, we have sworn witness testimony of why the software was designed. It was designed to rig elections. He was fully briefed on it and he saw it happen in other countries. It was exported internationally for profit by the people that are behind Smartmatic and Dominion. They did this on purpose. It was calculated.

[00:42:54]

They've done it before. We have evidence from twenty sixteen in California. We have so much evidence. I feel like it's coming in through a fire hose.

[00:43:03]

And that was Sidney Powell, ostensibly part of the president's legal team. Well, she was kind of one of the renegade members on the outside of his official legal team who was working with Rudy Giuliani in this period after the election, throwing around a lot of promiscuous and florid claims about the election have been stolen about the role of two voter software systems, companies, Dominion and Smartmatic, in having flipped a bunch of votes. You heard her there say that Trump didn't just win the election, but won by millions of votes, millions of votes.

[00:43:34]

And that audio, Jill and Joyce, you know, sometimes you play some sound because it's illustrative. That particular song is one of many of Sidney Powell and Rudy Giuliani in which there are going to be used as evidence. That's not right. There is a legally problematic for them and for some of the networks that have aired. Some of these claims are right now we see this two point seven billion dollar lawsuit by Smartmatic against Fox News, Lou Dobbs of Fox Business, highest rated show on the network.

[00:44:02]

Lou Dobbs was basically dropped by Fox News. And we've seen these networks on Fox News, various anchors, Newsmax, others who have been placed in these very awkward positions in recent days because of the threat of litigation by these two voting systems companies. So that's a long intro to say. Jill, talk about these claims that Dominion and Smartmatic are making and how credible they are and what kind of threat they pose to the companies that are facing them. And the larger implications.

[00:44:33]

I mean, these seem like they're pretty meaningful in a way that like we don't normally think defamation suits or can be.

[00:44:38]

I think the brilliance of the lawsuit is partly in how it's phrased. And I encourage everyone to go online and read the complaint. It's quite long, but it's fascinating. It charges false statements which constitute defamation and disparagement, and it goes through 16 separate counts, basically eight particular claims. It says that their business has been hurt, that a story was created by Rudy Giuliani and Sidney Powell, who are defendants in this two point seven billion dollar claim, and that it was propagated by Fox News and its anchors who are named in the lawsuit.

[00:45:23]

It is a very compelling case, a falsehood. Some of the things are so obvious and they charge that it was with malice that these false statements were made. If Smartmatic is a private citizen, falsity is enough to win the case. If they are considered a public figure or because the matter is of such public importance, then they may have to go beyond just proving falsity and they have to prove intent or malice. What's interesting about it is that it charges disinformation.

[00:45:59]

And it would be so interesting if we could stop the disinformation flow through this lawsuit, because if this lawsuit prevails and I think there's every reason to believe that it could, if I were the lawyers for any of the defendants, I'd say try and settle this before you have to pay two point seven billion or more plus litigation costs. I think it would be a wonderful outcome because we have not yet found a way to communicate facts and to rebuff the false information that is in the bubble called Fox News on CNN, Newsmax.

[00:46:38]

And we have to because I remember the days when we had three networks and they all had the same information. They all agreed on the facts. They didn't dispute that blue was blue and the sky was blue. So we have to get back to that so that we can debate policy on the basis of theory and policy, not on the basis of a false set of facts. And I think this suit could do that. So I applaud their effort.

[00:47:09]

So, Joyce, it's been fascinating to watch, right, because as Joel suggests, I don't think anybody at this point who's a serious person isn't cognizant of the notion that misinformation and disinformation have become central Seminole problems in the healthy functioning of our democracy.

[00:47:27]

That's not a thing. That's really a dispute. There is, you know, the rise of conspiracy theories, especially on the right, that have been purveyed by these right wing media entities that have vast reach, vast loyalty, watched by large chunks of the country. I mean, it's not about like there's a left wing view and a right wing viewer. There's opinion television anymore. There was our business model that encouraged a conservative point of view. That was Roger Ailes is kind of big.

[00:47:52]

And so when he started Fox News and then there were counterbalancing views on the left in the blogosphere and on television, in the free marketplace of ideas, whatever, now that there has become on the right in particular, not exclusively, but mostly on the right, there's now a business model that encourages the purveyors of lies, you know, things that are demonstrably untrue, not a matter of subjective counterclaims that are just false. Right. And these particular claims are very acute.

[00:48:15]

The ones that led to what happened on January 6th, the ones that happened in the aftermath of the election, the notion that the election was stolen, that there was widespread voter fraud. Now we've seen what the consequences of it are. People have asked about things like this for years. How do we fix this problem? It's like as long as there's a business model that makes it profitable for the right to disseminate this bullshit, they will continue to do it.

[00:48:35]

The answer has to somehow be in the market, right? That there's a financial risk. The bottom line could be damaged. And this is the first time when it's felt like, hey, maybe the market will solve this problem, not just an appeal to reason or appeal to good governance and appeal to tell the truth, because it's part of your journalistic obligation. But you know what? If you actually prefer these lies, we are going to lose your shirts.

[00:48:56]

This is such a moment of karma in so many different ways. You know, how many times have the three of us have this conversation about whether or not public officials can be prosecuted for lying to the public? And we know that you can't prosecute Trump, who goes out and lies shamelessly to the public or an attorney general who clearly mischaracterizes the content of the Mueller report that somehow, OK, so as you say, the comeuppance here is sort of through the First Amendment in this subspecies of defamation law.

[00:49:31]

This is full circle for me. I started life in a Washington law firm as a young lawyer, actually doing work in defamation cases involving both businesses and political figures. And I'm old enough that when I started out, truth was a defense. If you were sued for defamation in this case, if you had been Fox News under an old case called New York Times versus Sullivan, you could have said, well, you know, what we were broadcasting was actually true.

[00:49:58]

So this case against us has to fail in subsequent years. That actually became part of the affirmative case that the plaintiff is responsible for proving. It's not clear to me whether or not Smartmatic is a public, that you're not you don't become a public figure just because you're a company whose product ends up in the news by virtue and someone like Sidney Powell. But what's so powerful in this complaint and as Jill says, it's two hundred and eighty pages of compelling reading, I thought, oh, I'm not going to be able to make it through this.

[00:50:29]

And then I could not put it down once I started. And what Smartmatic essentially says is we don't care if we're a public figure. You're not actually there was actual malice on the part of these defendants. And actual malice is a legal term. And what it means is that at the time, Fox and the Fox hosts that are defendants and Rudy Giuliani and Sidney Powell at the time, they were talking about our company and saying that we were part of stealing an election.

[00:50:56]

Not only was it a lie, they knew it was a lie and they nonetheless spread it deliberately for their own personal financial gain. This really is the ultimate comeback to what this administration did to steal elections. And it's going to be a thing of beauty if, as you say, John, it's ultimately the market that right size is the truth problem. You know, one example might help, which is one of the claims that was perpetrated on Fox News through Powell, Giuliani and the House was that the Smartmatic was in widespread use in this election and that they deliberately were trying to rig the election.

[00:51:39]

Right. They only had a role in L.A. County, one county, one county in a state that certainly isn't contested. And they knew that. And those facts were very, very easy to discover so that the lie was so outrageous that you can only interpret it as malice or as you might otherwise phrase it, as being in a reckless disregard for the truth.

[00:52:06]

Hmm. Yes. The reason that I occasionally can pull off pretending to be someone who knows a little bit about the law is when I was in graduate school, I took a First Amendment law class at the Harvard Law School with Anthony Lewis, who was a famous name now, now long ago departed, but famed columnist The New York Times. And Tony taught this class. And literally the only thing I really still remember of it very clearly was the notion of what the definition of actual malice was, which was knowledge of falsity or reckless disregard for truth will always be like wedged in my brain.

[00:52:35]

And it was an incredible course. And for someone who was pretending to be a journalist, sitting with Tony Lewis and kind of trying to understand what libel and defamation and what those terms were and how that all worked was not only fascinating, but also, I thought, useful simply because I kind of headed into this career like what the standards were. So when I read these lawsuits now, I find it fascinating. People don't really understand why defamation suits are hard to win.

[00:52:57]

They're not like, you know, famous people mad about what's being written about them in the paper. You know, just making a mistake isn't enough. This notion of having a higher standard is part of the picture. But it is obvious, it seems to me, Joyce, as you look at things like what you just said, I mean, we did a little thing at recount about Smartmatic, and that fact really stood at me at the time.

[00:53:16]

I'm like, you know, the claims that Hugo Chavez was involved, the claims that Smartmatic somehow changed the election when you like, they were only operating in L.A. County. Any person broadcasting these claims should have stopped. The person said, wait a second, there's systems only operated to L.A. County. How can this have been responsible? Even if you believe the election was stolen, it can't be those guys. And yet it's worth highlighting, you raise reckless disregard, and so there are two things that you can prove here as a plaintiff, you can either prove reckless disregard, which is sort of like the ostrich with its head in the sand.

[00:53:49]

Right. You should have known, but maybe you didn't. But what Smartmatic is saying is that they had actual knowledge of falsity, which you don't see in these cases very much. And I'll tell you another risk that the defendants are exposed to here, if they don't settle, is discovery. There's broad expanse of discovery in civil cases and so is a young lawyer. I was involved in a lawsuit where Pat Robertson, who was running as a third party candidate for president, sued a sitting congressman, Andy Jacobs from Illinois and a former Congressman Pete McCloskey from our home state, John, for libel over his Korean War record.

[00:54:24]

And the allegation was that Robertson's dad, a powerful Virginia senator, had had him pulled off the boat for training in Japan rather than sending them on to Korea, where the life expectancy of a young first lieutenant was about three months at that point in time. Robertson thought that that decimation of his war record would harm his chances of winning the presidency. And so he sued for libel. In the course of discovery, which was broadly based, so much came to light that was truly damaging to Roberts and he ultimately settled the case saying that it would go to trial too close to Super Tuesday, I think, on that date.

[00:55:04]

And so he had sort of a face saving excuse for settling, but it was the discovery process that was so damaging he didn't want to be personally deposed any more than he already had been. This is the risk that FOX with its three hosts, Lou Dobbs, whose show was canceled. Right. Maria Bartiromo and Jeanine Pirro, they all get subjected to personal depositions, as do Rudy Giuliani and Sidney Powell. Documents get turned over and there are actually consequences if you don't turn over documents in your possession.

[00:55:37]

So Fox has a lot of reasons for wanting to see this case go away as quickly and quietly as possible, even if it costs them a big chunk of change.

[00:55:46]

You've seen it and Newsmax and others in the context. This is not the only one of these lawsuits that's been either threatened or filed. And so you've seen on both Dominion and Smartmatic, they've been talking for weeks about building these cases and going after various people. And in some cases, they've already gotten results of various kinds. One of them is they've gotten kind of hostage videos where the networks have put someone on air to basically try to distance themselves from prior claims and sort of say no, the things we said previously were not true, kind of try to ostensibly restore the reputation of the companies in this case, you know, as Fox News had done, was basically saying, go pound sand, we're not going to do anything like that.

[00:56:23]

And now you've got Smartmatic saying, well, you're not going to do that. Here we go. Let's go to court. And, you know, just the fact that Lou Dobbs has lost his job, which isn't the kind of astonishing thing. Lou Dobbs not a trivial figure ratings wise in the Fox universe. They will be fascinating to see these cases play out. But my question is whether if they play out, who knows how this one will get resolved, whether there'll be a settlement or whether we'll actually ever see the inside of a courtroom, whether the threats of legal action, the actions that people had to take in order to avoid legal action, whatever settlements might get, checks need to get written, etc.

[00:56:55]

Whether that will actually have the effect that we all hope it has, which is to say these media institutions will look and say, OK, we learned our lesson from this, and now we're not going to engage in this kind of behavior or whether they will write these checks and just say, well, that's cost doing business. We're going to go back to peddling conspiracy theories. That's the question I have going forward, because it's great to see Lou Dobbs get fired.

[00:57:14]

But Lou Dobbs getting fired is going to solve the problem of misinformation and disinformation in the right wing media universe. The question is, what happens next going forward? And I wonder whether you guys are hopeful about that kind of having that level of an effect that it's not just an immediate momentary thing, but provokes a lasting change in behavior. I'm always Pollyanna, and so I am hopeful that this will do it, but my hopes are often dashed. So I can't say with any certitude that this will make a permanent and lasting damage.

[00:57:47]

But I have to add something which is one I've learned about defamation law, because in writing my book, The Watergate Girl, I had to talk to the publisher's lawyers about things I had written. And so I've learned a lot about it, including that if someone is dead, they have no rights, which seems to me completely wrongheaded. And the other thing, when you said Tony Lewis, I was like my heart was beating because he's a significant part of the reason that I went to law school was having read Gideon's trumpet and reading that he had gone to law school, which I only later learned was on a Nieman Fellowship after winning a Pulitzer Prize.

[00:58:30]

But I thought it made him a great writer. And so since my undergraduate degree was journalism, that if I went to law school, I could be Tony Lewis. So I was very excited to hear that you actually got to have a class with him. I met him during the Watergate trial and was almost speechless because of that. And then you mentioned Pete McCloskey, Joyce, who I dated in my oh, my God, holy moly.

[00:58:54]

Not the only Republican I have ever knowingly gone out with, but he wouldn't be a Republican by today's standards. And we're still in touch. He writes to me. So I was like, this is the most fun. He was a delight for me.

[00:59:10]

OK, I got I got to take a we're going to get really quick break and listen to some commercials here, because I got to collect myself the notion of one big city, Pete McCloskey. Now, it's like no one in this audience is going to know what the fuck that means, but it's like it's blowing my mind. And we have a Tony Lewis connection.

[00:59:23]

All the stuff is what we are all showing our age here on this podcast. But we'll take a break. Listen, some commercials and we'll come back for the last part of this episode of Hell and High Water. Gammie plans this afternoon check out people every day, a new podcast from My Heart Radio and people will break down the day's most talked about stories, bring you exclusive interviews, get a free throw shooting contest.

[00:59:49]

And I'm all made 17 free throws straight and beat us all and introduce you to real people who are making a difference in their community.

[00:59:57]

Listen and subscribe if people every day on the radio app or wherever you get your favorite podcast. Once you know who it is, D.J., scream, Big Bang Cecchini and Big Facts has officially touched down on the black Ofek and I heart radio now bang, you know, big fix it a foot a week hard at midday for the sensitive big thing, big, big fix, which I put it up about real topics, real situations. And of course, you know, we have no conversations with the biggest names in the culture.

[01:00:28]

Twenty one Savage is on big fast giving up. What's up?

[01:00:34]

What's been going on with you when you get to a certain level like I got out of college, you got everything. How can I help my community and I outlive my people? I'm saying that you out of money and we're still not be like feel like you complete. I like you be a job job. And then being a big fat nothing is bigger than big facts. Make sure you listen to big facts on our radio app, on Apple podcast or whatever.

[01:00:58]

You get your podcasts. You know how we come. Chief Judge Garland is more than just a brilliant legal mind, he's someone who has a keen understanding that justice is about more than abstract legal theories, more than some footnote in a dusty casebook. His life experience, his experience in places like Oklahoma City, informs his view that the law is more than an intellectual exercise. He understands the way law affects the daily reality of people's lives in a big, complicated democracy and in rapidly changing times and throughout his jurisprudence runs a common thread, a dedication to protecting the basic rights of every American.

[01:01:46]

A conviction that in a democracy, powerful voices must not be allowed to drown out the voices of everyday Americans.

[01:01:54]

So we're back for this third and final segment of hell and high water. Having recovered from the shocking revelations of the previous section of the podcast about the dark corners of Joe Weinberg's romantic life with Republican Congressman Pete McCloskey. I'm still shook, as the kids say, by this news. But anyway, what we just heard there was Barack Obama talking about the man who's going to be our attorney general, Merrick Garland, back in May of 2016 when Obama nominated Merrick Garland to the Supreme Court.

[01:02:23]

Famously, of course, someone who Obama reaching for a jurist of impeccable character, bipartisan appeal, someone who he really thought could get votes of Republicans. And not only did he not get those votes, but was never even allowed to have a vote because Mitch McConnell blocked consideration of Merrick Garland, his appointment to the United States Supreme Court.

[01:02:43]

Fast forward now, four years later, and Joe Biden has decided that Merrick Garland is the person who is going to lead the Department of Justice out of the Trump era and into the light, so to speak. So I wanted to talk a little bit to our friends here about the challenge ahead for Merrick Garland, the DOJ, and what needs now to happen in that department, that probably no department in the federal government that was as debased and damaged as thoroughly as the DOJ in the course of the last four years.

[01:03:10]

And so I want to talk about what Merrick Garland faces and then a little bit about Donald Trump and his legal jeopardy now that he's out of office. But let's start with Merrick Garland, because we just heard Barack Obama talking about his choice. What do you think the task is that lies before him, assuming he is confirmed as the next attorney general? The work that Merrick Garland will have ahead of him, once he's confirmed, will be restoring DOJ integrity with the communities that the agency serves, because here's the truth about DOJ and everybody who's ever worked there knows this.

[01:03:42]

DOJ can only get its job done if communities trust it. It's asking a lot to look a jury in the eye and ask them to send a man or a woman to prison to take them away from their family and lock them up. You can only do that if your community has confidence in you. You can only get witnesses to cooperate and testify and help in an investigation. If they have confidence in you, people will only come and tell you about their problems.

[01:04:09]

So you as a Justice Department leader, can work for civil side remedies if they trust you. And so trust is a precious commodity. If you're the Justice Department. That's the most important work ahead of Merrick Garland.

[01:04:22]

Yeah, trust no doubt a precious commodity and maybe not just a precious commodity, but the most important commodity that the DOJ has to work with. And so I ask you is, in fact, job one for Merrick Garland, indeed, the restoration of that trust?

[01:04:39]

Our goal is truth and justice, and that needs to be restored. And after Watergate and the conviction of an attorney general, the replacement was someone who was seen as someone who could return integrity to the department. Edward Levi, who is from the University of Chicago. And I think that is a very good reason for an immediate confirmation of Merrick Garland. The sooner the better. The delay is unfortunate and hopefully it will be taken up very quickly. Obviously, it's not going to happen next week because of the trial or the week after when the Senate's in recess.

[01:05:20]

And I've even debated whether a acting appointment could be made. He is Senate confirmed as a judge, so he meets that qualification. Maybe that's the way to get him there sooner, but hopefully it'll only be a few more weeks that he can actually be confirmed choice.

[01:05:38]

You seized on something the other day when Biden nominated Garland. I noted he said this. I want to be clear to those who lead this department who you will serve. You won't work for me. You are not the president or the vice president's lawyer. Your loyalty is not to me. It's to the law, the constitution, the people of this nation to guarantee justice, which, you know, as I said before, there's a kind of a whiplash quality between what the Justice Department was like under Donald Trump and what it ostensibly is going to be like now going forward.

[01:06:06]

But you sort of seized on that point. You cited what Obama kind of told lawyers in the DOJ back when you were there. Just talk a little bit about the kind of unique nature of the Justice Department, if not like every other Cabinet department in government. It is different than others. And part of that difference is what Merrick Garland now has to kind of restore, because Donald Trump did see the Justice Department as just another Cabinet department. And like every other Cabinet department, he saw it as being in service to him personally.

[01:06:31]

And that's a very dangerous thing when it comes to the Justice Department and to the rule of law. The Justice Department is the only cabinet level agency whose name is a moral virtue, people inside of the Justice Department take that seriously. We don't make widgets. We're not graded on whether or not we win cases or how many we bring. Our job is to deliver justice. And I say that in the present tense, our job, because everybody who's ever worked for the Justice Department still carries that mission around inside of their heart.

[01:07:04]

Their job is not to serve a political master. Political priorities might be set by the White House, for instance, in the Obama White House. One of our goals was to begin steps towards criminal justice reform, and we worked on that in the US attorney's offices. But when it came to the conduct of our individual criminal cases and even many of our civil cases, Washington didn't play a role in those. Sure. The attorney general had a leupen and we would confer with the deputy attorney general and sometimes we needed permission to do certain things.

[01:07:38]

But that never reached the White House. So in my office, when we indicted and tried, the sitting mayor who happened to be a Democrat for corruption that he had engaged in while he was on the county commission, that wasn't something that the president had any say so in. And, of course, shouldn't have any say so in criminal cases directed by the facts and the law and nothing else. And if the last four years have done anything, they have heightened awareness of that in the Justice Department.

[01:08:07]

Prosecutorial discretion, I think, will be used in a very intentional fashion going forward. And I think prosecutors have had an abject lesson in how important this independence is. I recently wrote an essay for the Yale Law Journal talking about how important solidifying that culture of independence in the US attorney's offices is. But it's important throughout the Justice Department. And that's an important piece of renewing the community's trust in DOJ. Trump, every time DOJ got too close to him in an investigation, went out and bashed sometimes prosecutors by name.

[01:08:45]

This is the opportunity at DOJ to say we don't serve the president, we serve the people. And that's what has to happen.

[01:08:53]

If you look back on the four years that Trump was at the DOJ. How would you assess the damage that he did to the department and the degree to which it will be difficult to fix, if difficult at all?

[01:09:05]

The damage is serious and severe. I cannot overstate how strongly I feel about what he did. I think that the role of the attorney general is on a policy level. You can listen to the president if the president campaigns on, I think big is better and that antitrust cases are terrible, you can withdraw some resources from that. But you cannot have the president say go after Jeff Bezos. That's a different story. Setting a policy overall is one thing.

[01:09:42]

Naming your defendants is not. It was wrong when Nixon had an enemies list and used the IRS to go after people for looking at their taxes. That's just not within the realm. How difficult is it to fix? It got fixed after Attorney General Mitchell and Kleindienst got in trouble legally and it was returned. I mean, under the Obama administration, there was absolute respect for the Department of Justice, despite there were some issues raised. I think it can absolutely be restored and that Merrick Garland is the right person to do it.

[01:10:21]

So we just have to let time heal those wounds. There are career people within the Department of Justice who take very seriously their oath and are very proud when they go into court and say on behalf of the United States of America, you're not there on behalf of the president of the United States. And I think justice lawyers know that. And so I'm confident. Joyce, that's a good pivot to the last topic I wanted to raise, which is the legal future of Donald Trump.

[01:10:54]

The new president, Joe Biden, has been asked many times in the period since he was elected what his posture will be relative to the former president. And he, I think, has taken a position that many people find heartening in the sense that he basically says, you know, I'm not thinking about that stuff. The Justice Department should do what it's going to do. I'm going to keep an arm's length from this. I want to be not like Donald Trump.

[01:11:15]

I don't want to be to Jill's point. I'm not going to name people the department should go after. That's inappropriate. And that includes Donald Trump. But it does raise questions both at the federal level and at various state levels. You know, there's plenty of places where I think a lot of Democrats look at the DOJ and say, man, I hope Merrick Garland and his lawyers at the DOJ decide to go after Donald Trump on some grounds. And obviously, there are these state matters that are out there, Letitia James in New York and other places.

[01:11:40]

So just give us a sense of what you think the former president's degree of legal jeopardy is. How worried is he? How worried should he be about either criminal or civil, federal or state?

[01:11:51]

Jill and I are pretty much in agreement on this one. There's three possible areas, at least three, four possible areas of exposure for Trump. One is federal criminal exposure. The second one is a state criminal exposure with Manhattan District Attorney Cy Vance, who I am not related to chomping at the former president's heels. And then finally and intriguingly, there's Letitia James, the attorney general for the state of New York, who looks to be going after Trump with this death of a thousand cuts, a lot of different civil actions.

[01:12:21]

So for federal criminal exposure, I'll say this, federal prosecutors, their conduct is governed by something called the federal principles of prosecution. You can look it up and read it online. If you Google for the justice manual and federal principles of prosecution, it'll pop right up and you'll see that the standard is this, that prosecutors should not indict a case unless they believe they have sufficient admissible evidence to obtain a conviction and to sustain it on appeal. So not just, I think, a look at all the evidence that you can actually prove it.

[01:12:55]

And there are no legal issues that would keep it from being affirmed on appeal. That's a little bit more difficult than in real life than it looks when you do the analysis on TV. But, you know, that's something that I would expect will get a serious look at the Justice Department. The former president is, after all, an unnamed unindicted co-conspirators in the Michael Cohen prosecution in the southern district of New York. One might expect that now that the legal impediment to indicting a sitting president has been removed, that the logical follow through would be to indict him there.

[01:13:28]

We'll have to wait and see. And then, of course, there is the advanced prosecution, possibly about taxes, maybe about some sort of fraud, manipulating property prices for insurance purposes. And that, too, could carry lengthy criminal penalties. But Tish James, the New York A.G., has already shut down the president's charitable enterprise, which was not a charity, it was just a self enrichment operation. And not only does she have the opportunity to, in a series of civil or regulatory actions, go after the former president's businesses and remaining source of income.

[01:14:08]

She doesn't have to do it in one big case. And there could possibly be 10, 12, 15 separate actions that the former president is forced to defend on multiple fronts. That's expensive, that's time consuming. And I really think of that is the death by a thousand cuts legal strategy that really will get him where it hurts at his pocketbook. So this is going to be fascinating to watch for the next at least a couple of years. As Joyce just said, we agree on all this.

[01:14:36]

But I want to add a couple of other legal dangers that Trump is facing. Of course, there are the defamation lawsuits by some reservists and E. Jean Carroll. There is whether he's legally entitled to live at Mar a Lago and there are his taxes that audit that's supposedly still going on. There's no reason for it to continue. He could be held liable for millions in pass through taxes and penalties. So he has a lot of legal culpability and liability and danger ahead of him.

[01:15:12]

Do you think, Joe, if you had to weigh it out, Joyce just talked about very helpfully, kind of surveyed the federal criminal, the state criminal, the civil right. Do you think that there is more to worry about on the criminal or the civil front? And does he have more to worry about in the federal or the state run? I think they're all equally challenging to him, Letitia James cases are all civil, and as she was a guest on my podcast, Intergenerational Politics, and she is really good, she's also now a pin wearer.

[01:15:46]

She has a lady justice pin that I gifted to her. So my money's on her and Cy Vance being successful. The decision still is pending on getting the tax returns. So there's some time still involved. But I think there's years of litigation ahead for Donald Trump and for the Trump organization.

[01:16:07]

Let me put it very bluntly and we'll then we'll close here first. How likely do you think it is that Donald Trump will see jail time? And if he's going to see jail time, on what charges? I mean, because a lot of people have this fantasy right now. I wouldn't call it a fantasy. Many people have a hope that Donald Trump will see jail time. It's constant. People talking about love to see that guy in leg irons in an orange jumpsuit.

[01:16:24]

Right. So do we think that's plausible? And and if it's plausible. On what charge and what forum? And then secondly, on the civil front, where do you think he's most likely to end up having to write a big check as a result of what civil case?

[01:16:39]

I would say the defamation cases are going to be a real threat to him. I think going to jail. Probably will not happen, that doesn't mean I don't think he'll be convicted of crimes, I think he can be. I'm one of those people who believe that as a sitting president, he was subject to legal suits. I do not accept the Office of Legal Counsel opinion. I didn't back in the days of Watergate and I don't today, but I just can't see a judge putting him in jail.

[01:17:14]

So maybe home confinement, wearing an ankle bracelet. I could see that. I don't see him going to jail, but I do see him, the IRS, that's millions of dollars and he's losing all of his banking. He's a cheat and a con man. He doesn't pay people. I have a pin that says Stormy Daniels, the only contractor he ever paid. So, you know, there is there is that. But I think IRS could be a big hit for him.

[01:17:46]

Joyce, what's your answer on this question?

[01:17:47]

Like Jill, I'm a fan of the defamation cases, and I think particularly Jean Carroll, the woman who alleges that raped her in a Manhattan department store many years ago. She is thoroughly lawyered up, as we say, and it looks like they are loaded for bear. And that case could cause the former president a lot of trouble now that it's moving forward, particularly in discovery. You can tell I'm a big fan of discovery in civil cases. On the criminal side of the equation, Jill raises a really interesting notion, right?

[01:18:21]

We have no precedent for sending a former president to prison in this country. And that comes with some security risks. But the one thing that I'm going to say, it's probably an unpopular thing to say is that we need to be very careful about what we wish for here. We do not want to be a country that jails its former leaders because we disagreed with their policies and their politics, even things that we really strongly disagree with that we have a moral objection to in our country.

[01:18:53]

We only send people to prison when they violate established law. And so if Trump is prosecuted and convicted for an established law violation, he should be punished. And Jill is right. It could end up being home confinement in the federal system, where at least if your sentence isn't too long, that's a possibility. And for somebody like Trump, that would be quite a punishment, along with the fees and fines that go along with that conviction in the state system.

[01:19:19]

You know, he might find himself actually in prison. So I would say I'm a little bit agnostic about the outcome here. I think it just depends on too many different unknowables right now for us to have a good sense of whether he's ultimately headed to prison. And I have to say, because I'm from Illinois, we have a lot of governors in jail.

[01:19:40]

So it's not like I can put a politician or two in prison myself. And it's righteous work when the evidence is clear. Right. And the conviction is warranted.

[01:19:51]

Well, you got Blagojevich out there in Illinois as the most recent one.

[01:19:55]

But I'll say I have this pardon by Trump. I have this image in my head. Now, Donald Trump, having been barred from living full time at Mar a Lago, is no longer really welcome in New York. We won't have him back here if he had to pay a lot of back taxes.

[01:20:10]

I like the notion of Trump broke homeless with a LoJack attached to his ankle, kind of wandering around some very kind of like middle tier kind of assisted living facility on Long Island, kind of trying to, you know, trying to dial up Apprentice reruns to kind of regale the other assisted living, his colleague. Look, that's me. That's me. I was back when I was little. We had great ratings. We had the best ratings for ratings.

[01:20:35]

Ladies, I have to say, one of the things that I'm most proud of in my recent history was introducing and fan of flying jawin banks when it comes to Wu Tang Clan. And so I will say, I know it's been said on Twitter before and it will be said again that Joline banks are not nothing to fuck with and I will say no choice. And her fellow sister in law also joined banks, Joyce White Vance, two ladies who ain't nothing to fuck with.

[01:21:01]

Thank you for being with us today on Hell and High Water. Thank you for having us. Thanks, John.

[01:21:07]

Hell or high water as a podcast from the Recount and I heart radio. Thanks again to Joyce White Vance and Jill Wayne Banks for being here. If you like this episode, please, please subscribe to the podcast and leave a nice rating for us on the Apple podcast app that has helped people find out about the work we are doing here. I am your host and the executive editor of the recount, John Heilemann. Bruce Weinstein is a co creator of Hell or High Water.

[01:21:29]

Aleah Jackson and David Wilson engineered the podcast. Justin Turmel and Diana Roten handled the research. Stephanie Bender is our host producer. Sarah Soffer is our producer and Christian Fidel Castro. Russell is our executive producer. At Acuity Insurance, we believe the things you do for your business are heroic and you deserve someone equally heroic to protect them. We put her all into covering your business so you can focus on the things you love most. That's the power of heart acuity insurance wholeheartedly for you.

[01:22:03]

Do you ever wish there was a podcast that had real conversations like the ones you have with your friends? Well, you're in luck. Hi, I'm Erin Andrews. And I'm Charissa Thompson. And we wanted to call it Everyone Hates US, but the suits didn't like that. So meet our new podcast, Calm Down with Aaron and Carissa. Just two chicks talking about all this stuff. Others won't like this current breakout I'm having or Will is getting kicked out of dog daycare for peeing on other dogs.

[01:22:24]

It's the good, the bad, even the ugly and everything in between. Listen and follow. Calm down with Aaron and Chris out on the radio app, Apple podcast or wherever you listen to podcast.