Dissecting Democrats’ narrow path to a Supreme Court confirmation, pace of Jan. 6 probe

The Jan. 6 committee's probe into the Capitol attack is turning up new findings about the involvement of former President Trump's allies, as Senate Democrats prepare to advance the Supreme Court nomination of Judge Ketanji Brown Jackson. Margaret Russell of Santa Clara University School of Law, Kyle Cheney of POLITICO, and Chuck Rosenberg, a former U.S. attorney, join Geoff Bennett to discuss.

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  • Geoff Bennett:

    A series of revelations about the involvement of President Trump's allies in the days leading up to January 6, is providing fresh evidence to the committee charged with investigating the attack as it gears up for public hearings.

    And the U.S. Senate is advancing the Supreme Court nomination of Judge Ketanji Brown Jackson with the goal of getting her confirmed by the end of the week.

    We're discussing that and more on our Sunday briefing. Joining me today is Margaret Russell. She's an associate professor at Santa Clara University School of Law. Kyle Cheney is a Senior Legal Affairs reporter for Politico. And Chuck Rosenberg is a former U.S. attorney and former senior FBI official. A big welcome to the three of you.

    And Kyle, we'll start with you because there have been a slew of developments in just the past week connected to January.

    You've got Republican Congressman Mo Brooks. He revealed that Donald Trump pressured him to intervene to unwind the 2020 election results. Even after January 6, there was a federal judge who found it was, quote, more likely than not that Donald Trump corruptly attempted to obstruct the joint session of Congress on January 6.

    And now there are new questions about the President's White House Call Logs on that day, whether or not they were complete. How do all of these developments affect the committee's investigative work?

  • Kyle Cheney, Senior Legal Affairs Reporter, POLITICO:

    So it all adds just more granularity to the picture that the committee is painting that more and more likely looks like there were crimes committed not just that, whatever Donald Trump was doing with some unethical attempt to overturn the election in the final weeks of his presidency, but may have violated the law in multiple ways.

    The judge's ruling is the clearest example of that a federal judge out in California, says that more likely than not the president entered a criminal conspiracy with allies like Attorney John Eastman to try to overturn the results to violate the law to do that.

    So it's a, you know, every piece you just mentioned, fits in that narrative and fits in that picture that the committee is putting together and it helps them move their case forward.

  • Geoff Bennett:

    And Chuck, there is real unrelenting pressure from Democrats to hold Donald Trump and his allies accountable for the violence that unfolded at the Capitol.

    Is there any indication that federal prosecutors are close to charging the former president if it is, in fact warranted? And what would the burden of proof be that they would have to meet in a criminal case?

  • Chuck Rosenberg, Former U.S. Attorney:

    Yes, and let me take the second question first, Geoff. So Kyle just described a ruling by a federal judge in Los Angeles on an evidentiary matter, finding that it was more likely than not that Trump had entered into a criminal conspiracy. That's fine, in that case, for that evidentiary matter.

    But to your question, to hold anyone accountable in a criminal case, who would have to find proof beyond a reasonable doubt. And you would need a unanimous jury. So a very different standard. I think Kyle's explanation of what that judge did is good and important. But it's not evidence and certainly not sufficient to convict anyone of anything.

    As to indications of what the Department of Justice is doing, and how fast they're doing it, hard to know. Grand Jury investigations have to be secret. The rules of evidence require that they be secret.

    And so I'm not surprised that we don't have a lot of visibility into what the Department of Justice is doing. Congress is running an investigation. And that's all well and good. And they'll make a report public one day. The Department of Justice has a very different mission, which is to hold people criminally accountable, if the evidence and the law warrants it.

    And so they need to take their time. They need to do it right. And they need to meet a much higher burden of proof. Frankly, I'm glad they're doing it quietly and secretly.

  • Geoff Bennett:

    And Margaret, to that point, President Biden has been clear that he wanted to restore what he calls the integrity, the independence of the DOJ following what transpired during the Trump era.

    What do you make of the argument from some Democrats that the Justice Department under Attorney General Garland might be overcorrecting that they're in fact too cautious?

  • Margaret Russell, Santa Clara University School Of Law:

    Democrats particularly on the January 6 Committee are starting to say things like to your job, so we can do ours. And like the previous speaker, I would caution, any notion that Merrick Garland should be listening to them in terms of what he should be doing, it's a very different thing to say, you're not doing your job, you're not doing your job and to say, you're not doing the job, because you're not doing what I want you to do.

    And the course correction has been very important, because the previous administration's Justice Department made a charade really made a mess in terms of using attempting to use the Justice Department as a partisan political tool, and I think in this case, I would give Merrick Garland a little bit more time before assuming that he is not doing his job.

  • Geoff Bennett:

    I want to shift our focus now to the Supreme Court because, Chuck, this week as you will know, a texts from Ginni Thomas to former Trump Chief of Staff Mark Meadows surfaced showing how the wife of Supreme Court Justice Clarence Thomas, urged the White House to find a way to keep former President Trump in office. Justice Thomas so far has not recused himself from any case having to do with January 6.

    And what we learned this past week, lay people like myself, I'm sure you already knew this is that unlike all other federal judges, the justices of the Supreme Court are not subject to a code of ethical conduct. Why not? And should that change?

  • Chuck Rosenberg:

    Well, they're not technically subjected to a code, but they do abide by ethical norms and ethical rules and justices when necessary recuse themselves from cases.

    So, the typical recusal situation, Geoff, would be if a family members involved in litigation or you have a direct financial interest in litigation, you raise a really interesting question about whether or not Justice Thomas needs to step aside from cases coming down the Turnpike, because of what his wife wrote to White House Chief of Staff, Mark Meadows. And the answer is maybe yes.

    And so even though there's no technical code of ethics that directly applies to Supreme Court justices, not by the written rule, Supreme Court Justice, excuse me, Supreme Court justices do follow the same set of rules and look whether or not we ought to have a written code that memorializes that, sure, why not. But our justices tend to follow those rules pretty carefully.

  • Geoff Bennett:

    And in the few minutes that remain. Margaret, I want to come to you and ask about Senate Democrats, their goal of wrapping up the confirmation of Judge Ketanji Brown Jackson this week, she's on track for a narrow confirmation.

    But her hearings to a lot of folks I think really illustrated an ongoing disintegration of the overall Supreme Court confirmation process that I've heard from senators, Democrat and Republican who fear that it will only get worse. What's your view?

  • Margaret Russell:

    It means very likely that it will get worse and here's why. The Senate constitutionally is empowered to make its own rules so they could change confirmation hearings, if they wanted. Some proposals have been to sort of shorten the time period, tighten it up.

    But I think the worst offenders really are those who use their platform to ask questions that are not germane, that are hectoring and that ultimately don't reveal anything about the nominee.

  • Geoff Bennett:

    And Kyle, give us a sense of the week ahead. I know the Senate Judiciary Committee is going to have a hearing tomorrow and then we're to things late.

  • Kyle Cheney:

    Yes, so we — looks like we could get a confirmation by as you mentioned the end of the week, maybe by Friday in which, you know, again, will probably be a narrow confirmation, but there's a couple of key holdouts on the Republican side who may be interesting like Mitt Romney, Lisa Murkowski, haven't yet said what they're going to do. And so we may get a semblance more bipartisanship.

    We already have a Republican Senator Susan Collins supporting this nomination if others join her. It won't look, you know, quite as divisive as other recent nominees, but you know, as — it does sort of cap a very disheartening process about this entire nomination.

  • Geoff Bennett:

    Kyle Cheney, Margaret Russell and Chuck Rosenberg, my thanks to the three of you for joining us on our first Sunday briefing here at "PBS News Weekend." Appreciate it.

  • Margaret Russell:

    Thank you.

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