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Good afternoon and welcome to the City Club of Cleveland, where we are devoted to conversations of consequence that help democracy thrive.

Today's Friday, July 11th.

My name is Dan Moulthrop.

Im the chief executive here and I'm pleased to be able to introduce our speaker today, Tim Heaphy.

He's the author of a book called Harbingers.

What January 6th and Charlottesville Reveal about rising threats to American democracy.

Timothy was an investigator for the House Select Committee on the January 6th attack, and also an investigator for the city of Charlottesville, Virginia, investigating the 2017 Unite the Right rally.

It seems the Unite the Right rally seems like both very recent and very long ago, somehow.

But that was the rally in which a white supremacist drove his car into a crowd of counter-protesters, killing Heather Heyer and injuring another 35 people.

Tim Heaphy wrote this book, Harbingers before the 2024 election, concluding that apathy might actually be posing a greater threat to the rule of law than would be autocrats, and that widespread civic engagement would be essential to safeguarding our values and restoring faith in our institutions.

He proposes a number of everyday measures that Americans can and must start taking right now, in order to restore our faith and hope in the future.

Tim Heaphy is currently a partner at Willkie Farr and Gallagher LLP, and previously served as the Obama appointed U.S. attorney for the Western District of Virginia.

Our good friend Carol Rendon, partner at Baker Hostetler, is moderating our conversation.

Carroll is a former U.S. attorney for the Northern District of Ohio.

If you have a question during the Q&A portion of the forum, you can text it to (330)541-5794, and our team will work it into the program.

Members and friends of the City Club of Cleveland, please join me in welcoming Tim Heaphy and Carol Rendon.

Thank you Dan.

And it is, as always, a pleasure to be here.

And it's always a pleasure for me to get to do this with one of my former colleagues in the Obama administration.

So, Tim, welcome to Cleveland.

Thanks for having.

Me.

And welcome to the City Club.

So I thought it might be useful just to level set and start off with just a very brief overview of the Charlottesville investigation and the January 6th investigation at a high level for sure.

First of all, thanks for having me.

I really appreciate the invitation.

And since I've written the book, I've had a chance to go around the country to talk about issues of democracy.

It gives me an outlet to process what's been going on in our country since I wrote the book.

So thank you for very much for having me.

I wrote the book because I lawyers become kind of accidental experts in things based on the work that that they do, that they are given.

And my accidental expertise is in political violence and the management of mass demonstration events.

It's not something that I chose.

It's something that happened upon me.

I was the U.S. attorney in the district that includes Charlottesville.

When you were up here in the Northern District of Ohio.

And after I left that that position, I was a lawyer in private practice when he came to our community.

I live in Charlottesville, and in August of 2017, we had this horrific episode of racial violence and including the death of Heather Heyer that Dan referenced.

And right after the Unite the Right rally in 2017, the city of Charlottesville hired me and my then partners at, at Hunt and Williams to do an independent review of what happened.

How did the city prepare for and manage the event?

What lessons can be learned to try to prevent future acts of political violence?

Conducted that review, issued a lengthy report, and then I became the general counsel of UVA.

I was I was in my office in, on grounds in Charlottesville, on January 6th, 2021, when literally in real time, I was thinking, wow, this feels really similar to what we experienced in Charlottesville.

You know, four years before.

So when the speaker first there was going to be an independent commission, kind of like a 9/11 commission to review what happened at the Capitol on January 6th that didn't work.

She created the select committee, members of Congress, bipartisan, to actually do very similar work to what I had done in Charlottesville.

And I was hired to be the chief investigative counsel to the select committee and then kind of supervise the day to day work of of the congressional committee.

So I the idea then of the book is to kind of put those two events together.

What do they have in common?

What do they reveal more broadly about where we are as a democracy?

So, just following up on that, you know, these are two different incidences of political violence in two different parts of the country.

But you do in the book make a lot of connections between the two of them.

In what ways do you see these events as being connected?

The obvious one initially apparent was horrific failures of law enforcement.

We'll talk a little bit more.

I think about these were not intelligence failures.

These were not resource failures that the resources and the intelligence did not manifest in a plan sufficiently protected public safety or free speech.

And in the case of Charlottesville, that's one parallel, the way these events came together largely through social media, which now is is a forum through which people connect, people organize events.

People find others who have similar perspectives.

The way in which that happens, often based on misinformation, is another commonality.

And then the biggest one that I articulate in the book is that both Charlottesville on January 6th started with sort of a core impetus.

It was Civil War statues in Charlottesville, and it was the election at the Capitol.

But they pretty quickly, broadly metastasized to be just forms of anger at institutions.

A lot of people in Charlottesville really didn't care much about statues.

They were there because they broadly were angry that government was no longer protecting their historic white supremacy.

And in the Capitol, people, a lot of people were angry that they believe the election was stolen, but they were also angry at government writ large for Covid restrictions and b for the same reasons that people were there in Charlottesville.

So there there is a broad, broad forums of anger.

And that sort of reveals what I think is the core division that we face in this country.

So talk a little bit.

I know part of your investigation was not just was focused on those issues, but was also a sort of looking forward, like what did we do wrong and how do we avoid this from happening again?

And and as you say in point out, I think very effectively in your book, law enforcement had the information, right.

These things didn't happen without anybody knowing that this was going to happen in Charlottesville.

They had a permit.

I mean, there was all sorts of posting on social media.

People were arriving.

They knew what was happening.

And yet there was just a really unbelievable failure of law enforcement, both in Charlottesville and on January 6th.

How why what happened?

So I come at that question from the perspective of someone who's worked in law enforcement.

I mean, you and I, Carol, similarly, you know, as prosecutors spend a lot of time with hardworking men and women, who wear a badge and keep us safe.

So I have immense respect for for law enforcement.

And unfortunately, we continually are getting this wrong.

We institutionally, when it comes to assessment of danger, the core of any law enforcement decision, whether it is a person making a decision to stop a vehicle on the street or an agency assessing broadly intelligence about is how dangerous is this right?

Is this a threat?

And we do that.

Law enforcement, unfortunately, does not do a very good job of that for for a few reasons.

One is that we have lots of different disconnected sources of information.

So in Charlottesville we had city police, we had the FBI, we had the state police who did not in advance coordinate about who knew what.

There was no comprehensive strategy to synthesize the information.

Similarly, at the Capitol, we had Capitol Police and Secret Service and the Metropolitan Police.

We still do a really poor job in this country of gathering and aggregating intelligence.

We have to fix that.

The FBI, because of its sort sordid history of infringing upon the free association and free speech rights of people back to the Hoover years, puts real restrictions on their ability to do anything that is open source or protected speech.

So if an FBI agent sees someone on Facebook with a long gun saying January 6th is like 1776, see you in Washington, unless that information is deemed by the agent to be sufficiently specific and credible to open a preliminary investigation of a crime, it doesn't go anywhere, right?

It's protected speech.

So rather than maybe gather that with a bunch of other similar pictures or similar, you know, aggregate disaggregated tips into a comprehensive product, it just disappears and no one goes and knocks on the door of that person and says, hey, you posted this photograph, and what are your plans for January 6th?

Because of their concern, their justifiable concern about First Amendment restrictions.

And then the last issue is the ongoing American tragedy of racial bias, right.

The assessment of danger is subjective.

And whether it's that traffic stop or it's the assessment of danger, it's infected with implicit racial bias.

It's hard for me, having studied Charlottesville in January 6th, where the threat was presented by middle aged white guys who are generally perceived to be pro-police.

And contrast that to the response, the law enforcement response in the summer of 2020 and the racial justice protests involving the murder of George Floyd, Humvees and riot gear, and a much, much more aggressive response.

I think that's implicit bias.

I didn't talk to any officer in Charlottesville or at the Capitol who was sort of sympathetic to the rioters or the other side.

But they cannot help because, again, this is a subjective process, but let those biases impact their assessment of danger.

And we should talk about that.

We should flag that.

We should do all we can to counteract that.

So so those are some of the systemic issues that I think have have hampered law enforcement.

And the last thing I'll say on this is that it really wasn't the men and women on the front lines.

And there's incredible heroism, particularly at the capitol of Capitol Police, officers of Metro Police officers who are incredibly brave.

You know, Caroline Edwards was the first witness.

We called in our the select committee hearings here.

She's concussed because she gets knocked back by the Proud Boys and hits her head on a railing.

She goes up to the front of the Capitol.

She gets bear sprayed as she's rappelling rioters.

She continues to do police work.

I don't face that in my job every day.

So it's not the it's not the brave men and women on the front line.

It's or they're failed by their command staff and their institutional leadership that keeps getting this assessment of danger wrong.

So one of the things along those lines that was interesting to me in the book was, the discussion in Charlottesville of how the officers were behind bicycle racks with no authorization to try to de-escalate individuals scuffles as they saw them happening.

And so they were just sort of standing, on the sidelines and not actively intervening as opposed to sort of what we all saw when we had the Republican National Convention here.

Right.

And we saw excellent A-plus police work for an entire week without these kinds of incidents.

Yeah.

What was that.

About?

So the plan in Charlottesville, the event the Unite the Right permitted event, was going to be right at the foot of the Robert E Lee statue.

Charlottesville then had these two Civil War generals who had statues in city parks.

And the ostensible purpose was sort of preservation of the statues.

So they hardened the park.

All the officers were literally in zones behind bike racks inside the park, and there was almost no attention paid to the ingress and egress to the park.

And what we learned over the course of our independent review was that they anticipated some low level violence, and almost encouraged it so that they could declare the event unlawful and disperse everyone.

So instead of protecting speech rights, core function of government, however hateful, unless speech directly threatens an identifiable person or incites imminent lawless action, it's protected.

So instead of devising a plan to protect the speech, however hateful and protect safety, they said, well, let's let some fighting happen.

That'll allow us to declare it unlawful and we can tell everybody to leave, which is exactly what happened.

The fights occurred outside of the park, and then there were people, the Unite the Right guys who were inside the park where they declared unlawful.

They just pushed them right back out into the streets.

And that's what resulted in the car attack on Heather Heyer.

So it was a horribly missed guided plan that was too focused on the park, insufficiently focused on coming and going, and really never even tried to protect free speech.

So one of the things that you talk about and assess in the book is this idea of insiders and outsiders.

And for those who haven't read the book yet, because I'm seeing them on the table so that people can have them signed after the forum.

Tell us a little bit about what you mean by insiders and outsiders and and who are they and how did that divide affect both what happened in Charlottesville and what happened, on January 6th?

Yeah, it's sort of the central lesson, really, of looking hard at both events is that I think what we face in this country is in terms of division is no longer kind of left versus right, but rather those who believe in institutions and those who don't.

And that is transcends right and left.

There are a lot of people on the left and the right who who are just cynical about institutions.

And that's what we saw erupt in anger in both Charlottesville and January 6th.

As I said, Charlottesville was a lot of people unite.

The right was was explicitly trying to gather lots of different groups who had slightly different approaches to this core cynicism.

Government has gone astray.

It no longer protect us.

It is elevating the wrong things.

It was anger at institutions that was the primary motivator.

Same thing at the Capitol.

The election was the core impetus, but there were so many people that were angry about Covid restrictions or still wanted to preserve their white supremacy, just like Charlottesville.

Some of the same people actually were at both events.

So again, the core in the Capitol on January 6th was just a lot of people that were so mad at our system that what the Capitol symbolizes, that they were prone to violence.

So that I think, in terms of a deep immersion in these two events is the fundamental undercurrent that explains American division.

Like it's misguided to think, well, it's conservatives against liberals, it's blue states versus red.

It's more and more insiders versus outsiders.

That I think is really the core issue that drives American division.

So in a world in which there are groups of people on both the left and the right who have this really deep mistrust of the government, of media, of higher education, of other sort of core institutions of democracy.

How do we bridge that gap?

And especially in an era where, you know, there are executive orders, for example, that seem to elevate those exact concerns?

And, you know, at and make it more I would expect more difficult to try to bridge that gap.

Yeah, it's a good question.

So my assessment of the current moment is that President Trump did not create this division.

But as a businessperson, as a marketer, he is understands it and exacerbates it and almost exploits it for his political game.

So executive orders that talk about how higher education has gone astray.

Reinforce that cynicism to adopt that position.

We have a leader of the national government who has run on a platform of draining the swamp and of dismantling institutions, and that makes it worse.

And there's some basis for lack of faith in government.

Like, let's be clear, I think one of the ways we should fix this is to change some of the rules that govern our political process in America right now, almost every legislative district, either in the federal legislature or in state legislatures, is designed to be largely safe for one side or the other.

So if you're a representative in a district that is drawn that is gerrymandered to be safe Republican, the only way you lose is if someone sort of outflank you to the extreme.

Same thing happens on the left, so there's very little incentive to actually compromise and talk to each other and come up with constructive solutions to hard things.

If the only way you lose is if someone is more extreme than you, and when you add to that, the incessant flow of special interest money into campaigns that largely goes to incumbents, the rules protect incumbency to a much greater degree than encourage compromise.

So one way to restore faith is to change those rules, to create more political competition in a system that actually did incentivize.

What are we going to do about the hard problem of gun violence?

What are we going to do about our our immigration system?

Right.

These are not easy problems with clear solutions.

They require compromise and smart people putting their heads together and that's just not really happening very much.

So one easy thing to do.

No.

Not easy.

One obvious thing I should say to do is to change the rules of the system.

I think if government worked better for people, that would start to diminish cynicism.

Yeah, and not easy.

I think, is an accurate description.

We tried it here in Ohio.

And did not succeed.

Yeah.

Well, because the people that make the rules have a vested interest in preserving the status quo.

So it is, that is a challenging problem.

But so putting aside, I understand if we could, you know, address the issue of gerrymandering, bring our political system back to a world in which most things were purple and not red or blue.

You know, not everybody was an insider or an outsider where there was a need to discuss and compromise.

You know, I think there are very few people who would say that that's not a good idea.

Putting that aside, I know a lot of your book is really helpfully devoted to other things that people can do that every day.

People can do to try to address some of these issues.

One of the things that you talk about is the teaching of critical thinking in schools.

And so I want, I want you to talk a little bit about why that matters, but then, you know, you know, talk about why that matters, but then also talk a little bit about how we can do that in a world in which books are banned and children are pulled out of particular classroom lessons, how do we how can we still teach that important skill?

Yeah, it's essential that we do because of the information ecosystem and how more and more people in this country get their information.

Another light bulb moment for me in both Charlottesville on January 6th was talking to participants in both both events and realizing that they almost exclusively learn about current events through their curated social media feeds.

So the Stephen Ayers is another witness we called during the January 6th hearings, Carpenter from Erie, Pennsylvania, Trump supporter.

He was surprised when President Trump, lost the election.

So he started reading about the election on Facebook.

That was his platform of choice.

And based on what he read, he was then, through the algorithm, fed more and more information that reinforced his initial perspective.

I mean, that's the way the algorithms work.

The whole currency of these, these corporate, social media platforms is to get your attention and hold it.

And they do that by feeding you information that is likely to keep your interest.

So Stephen er, starts reading about the election and he's reading about, the all this allegations of fraud.

All false.

Right.

Like not accurate because Facebook is not the New York Times is not held to the legal standard of ensuring accuracy.

It is a bulletin board.

And the Communications Act 1996, section 230 says social media platforms are not held to the same legal standard as news organizations.

You can't sue Facebook for defamation because they're just an open forum.

It's the posters that can be sued.

So misinformation proliferates.

There's very little content moderation.

There's no label that says this is false.

There's no taking down of straight up false information.

And that is increasingly how a lot of our young, like my own kids, you know, they don't read the New York Times at the breakfast table.

They're reading things that happen to show up on their feeds.

We have to help them navigate that.

We have to help them understand that this is not meant to be fair and balanced.

We have to help them be critical thinkers about where they're getting their information, help them realize that they have to take ownership.

Steven Ayres was a victim, and Steven let himself be essentially brainwashed by what he read on Facebook, and he was responsible for that.

So we have to help our kids make better decisions about being consumers in this social media ecosystem.

And I think this has to go from very, very young kids all the way through our colleges and universities.

I think our colleges and universities have to, frankly, do a better job of creating forums in which people can, respectively, respectfully disagree with each other.

That doesn't happen enough.

At UVA, where I worked as general counsel, where my kids went to college, I do think sometimes there is a fear of conservative voices to speak out on college campuses that we should fix because it diminishes everybody's experience when there isn't genuine exchange, and people can actually risk having a provocative opinion without being canceled.

So from the lowest level of our educational system to the highest, we've got to teach people to listen empathetically, to engage constructively, to consider alternate views like that's a that's a life skill that I think we need to tackle more directly, not just deliver content, but teach people the critical thinking skill to to absorb information from a variety of sources.

Well, you also talk and you just mentioned section 230.

You also talk in the book about, efforts to try to repeal section 230.

Is that something that you think would help and where does it stand?

And and how do we try to, at least provide people with a warning label as to whether or not something you know, that they are reading is, in fact, based in any truth?

Yeah.

First of all, there is very little traction in Congress now to repealing section 230.

The social media tech giants that own social media firms have more power than ever, and certainly don't want to be held to that legal standard.

And I have some mixed feelings about this.

If we did impose the standard of of the New York Times versus Sullivan, like the defamation standard on social media platforms, they would take down a lot of information.

They'd be over inclusive, and there would be a lot of provocative speech or protected ideas that they, out of an abundance of caution, would not.

So there would be less there would be less open exchange of ideas.

And I and I worry a little bit about an over inclusive response, what I say in the book, but I really believe that the focus here ought to be on the demand side, not the supply side.

Let's assume that this landscape will continue, that there will be these algorithm driven silos.

The answer is helping people understand and navigate that.

I wish there was more transparency for the algorithms.

I wish there was some limitation on fake like bot accounts because they're oftentimes driving the algorithm with these these programs that amplify certain kind of content.

That's not real people.

It's machine driven.

We should change that and we should help, again, our young people understand how these platforms work.

So so it's demand side that I think is going to be more fruitful in trying to change the rules that apply.

And you think that that's something that we can do starting at the youngest age in primary schools.

But then what does that look like in the context of higher education?

Yeah, I think it has to go from primary school all the way through higher ed.

I think we have to teach people how information comes to them and encourage them to be critical thinkers, to look beyond your silo.

We live in silos in this country, I do, I'm guilty of this.

I listen to NPR, I read the New York Times, I go on MSNBC, and I watch it, and I'm getting, you know, kind of a narrow slice of of the overall perspective on issues.

And every so often I have to turn on Fox News or I have to go read, you know, Wall Street Journal.

It's hard to even now say that that's a right leaning, you know, the spectrum is much broader.

But we all fall into this.

And this is part of the problem in America.

Like we we just whether it's where we live, whether it's where we go to school, it's the information we consume.

We have become a much more polarized and divided country mechanisms that bring people together who are different from each other ideologically or practically or socioeconomically, just are less and less popular.

So some of it is that right?

It's just being exposed and spending time with and listening to people who are different from you.

And that's just increasingly difficult to do in the in America today.

And can you talk a little bit about the impact of the recent executive orders that are really focused on higher education, on those types of efforts to say, address this issue?

Yeah.

So my a large part of my law practice now is advising colleges and universities, because I spent some time as a university general counsel and, you know, my advice to my clients is the executive orders don't change the law, right.

Like title six and title seven and title nine have really well developed standards that because they've been in existence since the 1960s and an executive order is an interpretation of that.

So you don't necessarily have to take down every program that promotes diversity on your campus.

But what I'm hearing more and more from clients is a real fear about taking a position that would be legally justified, but risking the attention that comes with that and the threat to federal funding or international student enrollment, or the levers that the administration is, is using to enforce not just legal compliance, but a policy choice that's beyond the law, like the complete dismantling of DEA is not legally required by title six.

Title six means you can't have rigid racial classifications or programs that are exclusively available to certain groups, but it doesn't mean you have to abandon the policy benefits of creating a learning environment that's broadly diverse and where everyone feels accepted.

But but the line between those two things, the devil's in the details, and I'm finding a lot of fear out there in higher ed about taking steps that are going to draw scrutiny and force some sort of contention, like what Harvard's doing is really a big deal because they are pushing back, but not everybody is Harvard.

And I think a lot of people don't want to be don't have the resources to be would prefer to keep their heads down and hope that they, you know, stay under the radar.

So with that as a backdrop, I want to turn to what we can do going forward.

Right.

So instead of looking in the rearview mirror, looking a little bit out of the windshield, and you identify, in your book, three goals that you say we should pursue in order to fix what is an increasingly broken democracy.

Can you talk to us a little bit about what those things are, and how people sitting in this room can take personal action that can advance the goal of fixing an increasingly broken democracy?

Yeah, I could, since I've been talking about the book around the country, people often say, what can I do?

Like what?

What's my role?

And my answer is micro, not macro.

You may not be able to change the rules.

You may not be able to buy your own vote, change who's elected.

But you have a lot of power in your own circles, in your own lives.

To to be embodiments of democracy.

Democracy comes down to people like January 6th didn't work because there are a handful of people that did the right thing.

Right?

There was Mike Pence and Brad Raffensperger and people with whom I disagree with politically.

We were U.S. attorneys.

We had a very different approach to criminal justice than Bill Barr.

But at a crucial moment, Bill Barr said, look, the facts don't support this.

This faulty narrative of election fraud.

And he and he held up principle over politics.

It comes down to people and it comes down to every one of us taking personal responsibility to protect democracy.

And that means educating yourself, not living in a silo, not accepting an orthodoxy and not challenging how you feel.

It involves finding shared experience.

So many of the mechanisms through which Americans used to come together.

Civic organizations think things like this, frankly, aren't as popular.

Church membership is down.

Neighborhood associations are less like all of these organized ways.

So we have to create that in our own lives.

We have to not demonize the guy down the street who has a yard sign for a different candidate than yours, but actually try to find ways in your own circle to engage with people who are different from you.

And then we just need we need more shared experience.

I'm really attracted to a national service program.

Like if we created something in this country where young 18, 19, 20 year olds or recent college graduates could give 2 or 3 years of their time to clear trails in Colorado or work at a nursing home in New York in exchange for 4 or 5 years of tax amnesty.

I would make this mandatory like they do in some countries.

I'd incentivize it.

Then you're going to get people who are different from each other, who are coming together to build that trail, or to provide a hot meal to a resident of a nursing home.

We need to come up close.

There's a chapter in my book called It's Hard to Hate Up Close.

This is a Michelle Obama quote.

She tells this beautiful story about how she would go into lots of rooms when she was first lady, and could sense the skepticism that other people because of her and her husband having.

They're very different racially, very different politically.

But when they sat down and had a meal together and they talked about their kids and they talked about the weather, you know, that broke down and that the lesson is it's really hard to demonize someone or to to describe them as evil or morally bankrupt if you know them, if you hang out with them, if you if you focus on your your sameness as opposed to your difference.

And that's what we need to do writ large.

We we, we share more in this country in terms of common values and common aspirations.

We need to get back to that and find ways to focus on what unites us versus assuming the worst.

And living in these separate worlds of what divides us.

You also talk a little bit in your book about the importance of, and this is a lawyer's question of the civil litigation.

And the prosecutions that came out in the aftermath of Charlottesville on January 6th, and the important role that that those matters had on providing a sense of understanding of what had happened, of closure of justice, of all of the things that you try to accomplish in the arena that we as lawyers, try to do on behalf of our clients.

And I'm wondering if you could just talk a little bit about that, but then also tell us, you know, what the impact of the mass pardons has, on the people who were at the Capitol defending the Capitol on January 6th.

You know, the mass pardons of the folks who were prosecuted for that.

So if you believe, as I do, that, criminal consequences deters bad behavior, then the flip side of that is the the forgiveness of criminal conduct encourages bad behavior.

So in my view, the pardons were a terrible threat to the rule of law by forgiving and treating the same.

The trespasser, the person who went into the Capitol for ten minutes and came out and didn't commit any act of violence with the seditious conspiracists, the people that planned to use violence to disrupt the transfer of power.

You're encouraging more of that.

Accountability matters, right?

Part of why people are cynical about government is when no one's held accountable for things, right.

That's offends your core sense of justice.

So by holding people accountable in Charlottesville and from the Capitol for the the criminal acts in which they were engaged, you're restoring faith.

And when you when you remove that, you diminish faith.

Let me let me make one thing clear is that no one was prosecuted for their role in the January 6th attack for their beliefs.

Right.

There's this false narrative out there that, well, people were just punished because they believed that the election was stolen or they believed that that President Trump, you know, should have been elected.

That's just not true.

You have an absolute right to stand in front of the Capitol and say, stop the steal.

And this is wrong.

But you don't have a right to climb through broken glass and go inside the building or assault law enforcement.

When your beliefs motivate conduct, that's criminal.

That's when you are prosecuted.

And to be clear, the 1500 people that were prosecuted by our former colleagues at the Department of Justice all engaged in acts, not simply speech, but acts that led to their their conviction.

And to excuse that with the stroke of a pen, I worry encourages more unlawful behavior, more vigilantism.

If there's a sense that there's a backstop, or as long as you're sort of on the president's side, he's going to excuse your conduct, then that's going to encourage more, more risk, more bad behavior.

We are about to begin the Q&A portion of our presentation here this morning.

For those of, for those of you who are joining via our live stream and the radio audience, I'm Carol Rendon, partner at Baker Hostetler and former U.S. attorney for the Northern District of Ohio.

I am pleased to serve as today's moderator.

I'm speaking today with Tim Heaphy, author of his new book, Harbingers What January 6th and Charlottesville Reveal about Rising threats to American Democracy.

We welcome questions from everyone City Club members, guests and those joining via our live stream at cityclub.org or live radio broadcast at 89.7 WKSU Ideastream Public Media if you'd like to text a question for Tim, please text it to (330)541-5794.

That's (330)541-5794, and City Club staff will try to work it into the program.

And with that, may we have the first question please.

I love being a city club member because I'm now in a unique position of being able to ask you almost exactly the same question I ask of the ABA president at Tuesday's seminar.

There have been a handful of large law firms, including the one you belong to, who, in response to threats from the Trump administration, have entered into settlements.

And when I asked the ABA president what he thought of it, one of his comments was, maybe we should ask one of the law firms.

So now I get the chance to do that.

Yeah.

How was that not create an unavoidable conflict of interest with your firm that may want to represent any client with any dispute involving the Trump administration, including, for example, the universities you represent and are trying to give counsel to and a broader question is, in my opinion, as a lawyer, we lawyers have a unique responsibility to protect the rule of law and do our part to prevent attacks to democracy.

And by a law firm acceding to and appeasing the Trump administration.

We've abdicated, or at least with all due respect, your law firm has abdicated.

That responsibility could you comment on that?

Yes.

Good question and a fair question.

I was strongly against the deal that our firm cut with the administration.

But I was overruled.

The partners in my firm believed that it was in the best interest of our clients to not engage in a direct litigation challenging this executive order.

We actually never got an executive order.

We preempted it by entering this executive order.

What it revealed to me was that the goal of law firms private practice, is not to protect democracy.

Candidly, the protection of the rule of law, I agree with you, is a higher obligation of lawyers.

But the primary purpose of law firms is to generate revenue for partners.

That is a cynical view.

And anything that threatens that, is unfortunately going to be less important than protecting the rule of law.

I do think that is a huge problem.

I do think the capitulation of firms like mine, is a very distressing development.

Some people say, well, why didn't all law firms sort of come together and unite against this?

The easy answer to that is that, their competitors.

So every law firm saw the misfortune of Willkie Farr or Paul Weiss or Kirkland or others as an opportunity.

And collective action just is not possible across the industry.

The firms that fought, in my view, are not any greater adherence to the rule of law.

They fought because it was in their business interests to fight.

Right?

Gener and Wilmar are primarily litigation firms, and their brand required them to fight.

We are primarily a transactional firm.

There's a big division between transactional lawyers and litigators within my firm and within the industry on this question of whether settlement with the administration does or doesn't make sense, I will say that since we entered the deal with, the administration, with firms not been asked to do anything in particular, there has not been a request to take on a particular pro-bono matter.

We always represented a wide range of, of public interest groups across the ideological spectrum.

When it comes to pro bono work, we always hired in compliance with law.

We did not have racial or protected class, categories that we needed to fill.

So it hasn't practically changed the day to day operations of the firm, but it does create an impression.

You're exactly right that by entering this agreement, there have been consequences.

There have been clients that have stepped away from us or have not hired us as a result.

And there are lawyers in the firm who have left, and that's going to continue, I think, over the course of the coming weeks and months to to shift the industry a little bit.

I tell my clients that we have not changed anything, that I am still, and luckily I have a couple of matters that may be that require litigation against the administration that that I have taken even since the deal.

So the firm, thankfully has not imposed a restriction on taking anything adverse to the administration, even though we have this negotiated deal with the administration.

So it hasn't practically impacted me, at least as far as I know.

It probably has, because just because of the name, on the top of the of my web bio is Willkie Farr, then that probably means some people will keep clicking and move on to the next lawyer, but it hasn't directly affected me in terms of the client relationships that I have.

Good afternoon.

My name is Delores McCollum.

I'm a retired social studies, teacher from Cleveland.

I have an observation and a question.

My observation.

You mentioned critical thinking skills, and I think they get too often drowned in a crushing wave of mandatory testing, maintaining certain numbers instead of courageous creative education.

And too many adults make faulty assumptions about children and young people and how they going to react.

So that's my observation.

My creative thinking, my question based on what you said about failures of the police in Charlottesville and, Washington, D.C., have we failed to learn from the disconnect that we saw on 911 between the New York police officers and the New York, firefighters?

Yes.

Yeah.

First of all, I agree with your observation.

My first job out of college before law school was as a high school English teacher.

So I appreciate what you do.

And that, was my first job and the pressure to teach a certain curriculum to teach to the test.

In Virginia, we have the Standards of learning core curriculum that has to be conveyed to students at all levels, that the crowds out space for these kinds of discussions about critical thinking.

Have we not learned from 911?

No.

Unfortunately, we have not.

The 9/11 Commission after, the the Trade Center attacks, flagged this issue that there was a disconnect primarily then, between the intelligence community and law enforcement.

Right.

There's within the FBI, there was the Intel Intel gathering, and then there was the criminal, and they never talked to each other.

And they tried to change that to create some flow of information from one to the other.

And the Department of Homeland Security was created in the wake of 9/11.

And one of their functions is this is to be a sort of a clearinghouse for information.

They created fusion centers around the country.

There's probably one that you worked with in Cleveland.

There's one in Virginia, but they're really varied in terms of by and in participation.

The FBI did not participate in the fusion center in the district where I was U.S. attorney, because they have confidential sources, and they don't want the integrity of that information to be compromised or shared.

So there's a there's a ton of just old fashioned territorial ness and ego that affects us.

So while it's been flagged, you're right repeatedly as an issue.

We just have not yet seen broadly across the board to do a good enough job synthesizing information.

And it requires more resources and more attention.

And, Tim, one of the things that you mentioned in the book was that at least in Charlottesville, the various police agencies who were there couldn't even talk to each other on the radio.

Yeah.

Explain that.

Yeah.

Again, so much of this when you say it out loud is kind of shocking, but no joint operational plan.

Right?

So the Virginia State Police had an Ops plan for August 12th, and the Charlottesville police had a separate operational plan.

They didn't even know what each other were doing, and they did not have interoperable communications equipment.

So the Charlottesville police sergeant, who's standing right next to the Virginia State Police zone commander, they can't communicate by radio.

They have to relay information to the command center and then down through their respective channels.

So just simple things like interoperable communications across agencies at the Capitol, they did have that.

Luckily, the Capitol Police and the Metro Police could all be on channel 16 and hear each other, you know, sort of observing and directing traffic.

But but basic things like this, it's again, it's everybody has his or her, you know, their own system.

And getting those systems to link is, is unfortunately easier said than done.

the J.

Six Committee and other House committees are prohibited from, destroying information.

Why do you think they did that?

Well, there's no information destroyed.

First of all, this is another I appreciate the question, because this is another false narrative that there has been information somehow destroyed the rules of the House provide that certain documents have to be preserved and sent to the archives.

And we went through a very methodical process of doing that.

What was not preserved were recordings of of interviews.

The official record of each interview is the transcript.

The recording is not the official record of the house.

So I think the genesis of this narrative is that all of these recordings were destroyed.

I don't think they were destroyed.

They just weren't made available in the archive.

And we made very it was very important to me as the chief investigator that at the completion of the Select committee's work, we didn't just issue a report, we issued the transcripts of every interview that we took, and every document that was cited was made public so that people could and see if we took something out of context or see if a conclusion that we made was or was not well-founded.

So it was important that sort of the scratch paper on which we sort of did the calculations that led to the conclusions, all of that is, is public.

So every interview, except for a handful of national security officials, there were some military aides and white House aides to the Biden administration would not allow us to make those transcripts public because it jeopardized kind of the internal operations of the white House and national security.

But there was only a handful of those, the rest of them all the start to finish, the entire body of work, all the interviews, those transcripts are public, so that you can see if when we quote Bill Barr, we're taking it out of context.

The entire interview is made public.

So my name is Kent Smith.

Without getting into when my day job is, I was recently a guest of the German government, and they brought some folks overseas, based on the last government, not the one that just took over.

Looking at the issue of, because I'm pulling off of your statement of insiders and outsiders, not left or right.

And you felt that outsiders, you know, were, I don't know, more were would potentially be more likely to get caught up in this type of political violence.

The premise that the German government essentially had was where economic transformation had left people behind.

They were more willing.

Those folks would be more willing to join something like the political party, the AfD, which is the alt right party, in Germany.

And so I guess I wanted to hear your thoughts on are the folks that might get left behind economically.

More, apt to be caught up in a sensation of political violence or just what your thought is on that topic.

Yeah, thanks.

It's a good question.

And I think there's truth to that.

And the German experience is consistent with my impressions of what's happening here.

Part of what's driving division in America is wealth disparity is the ways in which there we have almost sort of a barbell society where we've got super rich people and really poor people and a shrinking middle class and people who don't have the same economic opportunity are more apt to be cynical, are more apt to be outsiders, are more apt to believe that, hey, the system has left me behind, right?

My father's factory job isn't available to me.

That's government's fault.

And I am more angry and I'm more susceptible to to a far right ideology, or to a president who tells me it's not my fault.

So I think that that's right.

There's a lot of social forces that that undergird this.

That's why I think we spend so much time focused on President Trump, when, again, this is so much bigger than than he.

Right.

He didn't cause this.

These are larger sort of tectonic forces that are that are pushing us apart.

He exploits it.

He makes it worse.

But he didn't cause that.

So why we should focus on him and what he's doing.

We need to understand the underlying forces, including the economic disparities with which we live and fix that.

Right.

Look at the underlying causes of division, as opposed to looking at at the current political leadership.

Yes.

I was just wondering, in the course of your career, have you ever had the opportunity to do any work on immigration matters, and what was your what are your overall thoughts on what you worked on?

You know, the only interaction or work I've done on immigration was as a prosecutor.

When our office, the U.S. Attorney's Office, would would charge people with illegal entry after deportation.

When I was a U.S. attorney in the in the Obama administration, the only time there was any involvement of our office was when there was someone who had committed an aggravated felony.

We were not deporting people or prosecuting them for reentry after deportation unless they had had an encounter with with law enforcement or criminal justice that suggested that they were a threat.

Very different standard than what we're seeing now.

I think this is a hard problem.

I think this is a problem that requires compromise.

I think we need some enhanced border security, but we also need a path to to legal status for people who are here, who work hard, who are fleeing oppressive regimes or looking for more economic opportunity.

They're very important to our economy.

So some solution that gets legal status for those people, but still imposes some restriction on you can't have an open border.

But but again, we're not talking about the granular details of this, right.

We're deep where we are.

Current elected leadership is dealing in these these broad over inclusive stereotypes and generalizations.

Instead of rolling up their sleeves and actually doing the hard work of figuring out what it needs to look like.

And that's true with lots of things, with climate change, with gun violence, with these, you know, really intractable, pressing problems that we're just not getting to we're not having these kinds of conversations in Congress or in the Virginia General Assembly or probably in Ohio.

Right.

Like because the system doesn't really allow for that kind of conversation.

This is a leadership moment.

I talk about working with schools, working with school districts, what we're working through, where's the leadership going to come from, who from your perspective, I understand what you're saying about change comes from, communities.

But where from your perspective, where you're seeing the opportunity for leadership to really stand up and, move us forward?

Yeah.

It's a good question.

I think it it is organic and bottom up, not top down.

Right.

We cannot wait for government to heal itself.

We cannot wait for law firms or universities to rise up collectively and push back.

We have to do it ourselves, right?

There is no cavalry coming, right?

We are the cavalry we have to ourselves and our own worlds, right in our own families, in our own neighborhoods, in our own schools.

Be the change.

Educate ourselves.

Connect with other people, participate.

You know, I think Dan's introduction, you know, one of the big points in my book is that apathy is a bigger threat to democracy than anger.

Right?

Charlottesville, January 6th were spasms of anger fueled by cynicism.

But a lot of people who share that cynicism, they just check out, right?

They don't vote.

They don't educate themselves.

They just kind of go through the motions of taking care of their families.

And they're like, you know, it doesn't matter what I think or what I do that's more dangerous.

So we need to run toward the fire, run toward the problem.

That's the solution.

That's where the leadership comes.

Not waiting for somebody to tell us what to do, but do it ourselves.

Part of the reason we do after actions for any, casualty, like what happened in Charlottesville on January 6th, is to be better prepared for the next time.

Yeah.

Whether that next time is 2028 or 20 40 or 2060, our, our institutions at the federal level, are the institutions better prepared for the next one because of the work that you've done?

I hope so, yeah.

I think there's some easy things that have been changed that will make us better prepared.

I think, going to the attack on the Capitol, the certification of the election results is now what's called a national security event, which means the Secret Service leads planning.

There are more resources and coordination.

The inauguration has been a national security event for years, but the certification was always kind of a non-issue and need to have a lot of security planning.

It does now, and I hope that because of this disconnection issue and because there is more resources now being put into public safety, that we're going to get better at this information sharing issue.

I just think failure is a real motivator, and the lack of of coordination.

I hope that we get better at the other thing that changed as a result of the committee, the select committees work was we reformed the Congress, reformed the Electoral Count Act.

So it was clear that the vice president did not have the authority to unilaterally accept alternate or fake slates of electors.

Now it is.

There's been modifications to the Electoral Count Act, which hadn't been modified since the 1800s, which make it even more crystal clear what the role of Congress is, what the role of the vice president is, how objections.

We've codified a little bit to ensure that there's no certainty.

So each of these hopefully results in either a legislative, a policy, a resource change.

And I hope that there's a broader public understanding, right, that motivates engagement if we learn from these things and that motivates people to get involved, then that is the biggest benefit of an after action.

Like I always felt like in the work that we were doing on the select committee that that there was a short term audience in terms of educating people about what happen.

But there's a there's a legacy audience.

There's sort of an understanding of history, of historical understanding of how this happened.

And from that long term view, we learn and ideally, we get more engaged and we take more personal responsibility.

So I hope that these actions raise consciousness and that that has lots of ripple effects in terms of engagement, participation.

That brings us to the end of our conversation today.

Thank you so much for being here.

Our forum is now adjourned.

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