Tim Heaphy served as chief investigative counsel for the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. He previously served as United States attorney for the Western District of Virginia, and  is currently a partner and co-chair of the Investigations & Enforcement Practice at Willkie, Farr & Gallagher. 

This interview offers perspective and legal analysis on the four-count federal indictment against Donald Trump. The former president has pleaded not guilty to all four counts. 

The interview was conducted by Kirk Documentary Group’s Mike Wiser for FRONTLINE on Oct. 12, 2023. It has been edited for clarity and length.

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Let me start with the federal indictment that comes out against former President [Donald] Trump. When you hear that news, when you read that indictment, what is your reaction? What do you think? 

It sounded very familiar. It was very much the same sequence of events, the same facts that we had presented over the course of our summer hearings and in our report. This was a methodical, intentional multi-part plan to interfere with the joint session and ultimately prevent the transfer of power. That’s the story we told, and that’s the story that’s set forth in the federal indictment. 

And even aside from that, the stakes here, a former president charged with these crimes. A few weeks before this, the idea of a former president being charged with anything was itself shocking. How important a moment? How high are the stakes when that indictment comes out? 

I think the stakes are incredibly high. The system needs to apply equally to everyone, and there’s a very strong public interest in accountability. We knew all along that our role on the select committee was to tell the truth, was to assemble the facts, but that we would not ultimately have the authority to hold individuals accountable. We laid a foundation for that, I think, by finding facts, but the Department of Justice and the criminal justice system is the place where this ultimately landed, because it’s where it deserves to land based on these facts. 

Did you have a certainty that it would end up here, or were you unsure? You made your referral; you’d laid out the facts. 

Yeah, there was very little certainty about anything over the course of this process. We started with the mandate to follow the facts wherever they lead. Chairman [Bennie] Thompson, when he hired me, said, “We just want to assemble a credible narrative about what did or didn’t happen.” And we didn’t really know where that would end up. Over the course of the investigation, it became clear that there was serious evidence of the violation of federal law, and as we got through our process, the criminal referrals started to take shape. 

So by the end, I was not surprised at all that there was a criminal referral and that there was potentially a follow-on criminal proceeding, because the facts, they led us there. 

… As you know, the expectations for the committee might have been low in the sense that a lot of people were saying, “We saw what happened. We saw what the president had tweeted. We saw the speech; we saw what happened on Jan. 6.” What was the goal of the committee, given that the events seemed to be happening in plain sight? 

Well, the investigation was broader than what happened in plain sight. We saw from the beginning that our mandate was to zoom out from either side of the fence there at the Capitol and the violence that occurred and try to understand the root causes, understand the financing, understand the motivations of people, understand how preparations and response occurred. 

So while the events played out for the world on television, there was a lot to dig into beyond those events. This was not simply a question of who committed acts of violence at the Capitol. It was more, how did all those people get there, and how did the system anticipate and respond to them?

And how early did you know that there was a story that began at least on Election Day, or, as the report says, even before Election Day, and that it didn’t start on Jan. 5 or 6 or with the “Will be wild!” tweet. When did you know it was a bigger story?

Yeah. Well, we knew it was a larger story, but we didn’t know how large. So the first task, when we were assembling, was scope. Anytime a lawyer gets a new case, a new assignment, the first question is, what is the question we’re trying to answer? What is the scope of our work?

House Resolution 503, the enabling legislation that created the select committee, not terribly helpful. It essentially tasks the committee with investigating the facts and circumstances surrounding the attack on the Capitol. That is not really a limiting principle. So we had to, as a starting point, come up with what is our scope, and then how are we going to subdivide the work.

And we zoomed out from the Capitol to talk more broadly about the election. We knew that there was a lot of political activity that informed the events at the Capitol, and also, sort of more broadly, domestic violent extremism. This was sort of the latest in a series of events that have been happening around the country and around the world, and we wanted to understand that as well. 

So we put together sort of an investigative plan that had five color-coded teams that tried to sort of initially define our scope, and that kind of held throughout the investigation. That initial structure seemed to be pretty accurate and appropriate, and it guided our work throughout.

What were those teams? 

We started with the Capitol, and we had two teams that were focused on kind of either side of the barricades at the Capitol. The blue team was focused on law enforcement and military: What intelligence did they have in advance of Jan. 6? How was that intelligence operationalized in a security plan? And then how was the event managed in real time? How did agencies respond? The timing of the deployment of the National Guard, those kinds of law enforcement, military issues, that was the blue team. 

But on the other side of the fence you had the red team. They were focused on how the rioters came together, the Oath Keepers, the Proud Boys. How much organization or coordination was there between those groups? Trying to sift whether this was strictly a spontaneous event or how much planning and preparation had gone into it—so the red team was really focused on that. 

But then, zooming out from the red and the blue team, we had gold and purple. So the gold team was focused on all the election issues. It was clear before we started that a lot of people there were there under the sincere but misguided belief that the election had been stolen, so we wanted to look into this Stop the Steal narrative, these allegations, false allegations of election fraud. And that was the gold team’s focus. They’re the ones that started to dive into the fake elector certificates, pressure on state officials, pressure on the vice president. That became really a central narrative because it informed so many of the people who were setting up these events.

And then purple was more broadly focused on domestic violent extremism. They were plugging in Jan. 6 into this pattern. There had been events, for example, in state capitals earlier in the year where there were occupations, so violence directed at sort of official buildings and processes. And then purple also focused on social media, because social media is often the forum in which these events are planned, where these groups recruit membership. So how social media and the social media ecosystem informs the ability for these folks to come together was a big part of purple’s focus. 

And then the last team was the green team, and they were just focused on funding streams. We wanted to understand who was paying for this. Was there, again, organized, thoughtful contributions from various people? How did everyone get to the Capitol? And then, more broadly, who’s funding this broader domestic violent extremism activity around the country? 

So those were the five teams, and they had to work very closely together to ensure that we weren’t duplicating efforts, that we weren’t stepping over each other. It took a lot of coordination between the teams in order for this to work. 

And would you say that this was a typical congressional investigation? Because we’ve read that there’s a lot—you’re not the only former federal prosecutor on this case. As you’re describing it, is this the way a congressional investigation works, or was this one different? 

No, this was very, very different in a lot of ways. First of all, just as you said, the people involved were different. We ended up hiring, I think it was 14 or 15 former prosecutors. That was not intentional. We weren’t going out to hire prosecutors to make a criminal case, but the people, the lawyers, that have the skill set to interview witnesses, to digest a large amount of documents and to sort of discern what’s relevant and separate that from what’s not, that skill set is developed largely by trying cases, by investigating cases, and that’s done in federal and local prosecutors’ offices. So that was sort of the talent pool from which we largely drew. 

This is also very different because we did not have a majority and a minority staff. In the typical congressional investigation, you sort of have these competing narratives. The majority sets the agenda, but the minority is forwarding their narrative. We didn’t have a majority and minority staff. We had a single staff. It was diverse, and we had Republicans and Democrats. Frankly, we had a lot of people who I still don’t know what their politics were. That was not typical in that one side is trying to make a point; the other side is trying to rebut that point. We had one point, which is what happened; let’s go tell the truth. And that made it a very different process. 

… What are the powers that you have? Because I gather they’re more than the powers that we have as a journalist, but maybe less than you might have had as a U.S. attorney. What were the powers that the investigation had?

So we had subpoena power, which is important. Congress, just like a prosecutor, can compel a witness to provide documents or to come in for an interview. And we used that subpoena power much more aggressively than the typical congressional committee. We didn’t always use it. We always started when we approached witnesses with a sort of request for the voluntary provision of information. And a lot of people came in without a subpoena and provided information. 

There were some that either resisted and would not come in, and we went to a subpoena because we wanted to compel them. And then there were some that asked for a subpoena, that actually, for purposes of sort of maintaining their professional reputation, did not want to be seen as leaping forward to help the committee and wanted to be able to say, “I was compelled. I was subpoenaed, and I had to appear.” So that was often a negotiation with the witness himself or herself or the witness’s lawyer in terms of the terms of what it would take to get that person in.

And then we had a lot of resistance to the subpoenas. So we had people that just didn’t come, that said, “I’m not subject to congressional oversight,” a Steve Bannon or a Mark Meadows. And then we had people that came, but in response to particular questions, would assert a privilege. If we asked a question about a direct communication between the witness and the former president, they would say, “I can’t share that because that’s protected by executive privilege.” And it was very difficult for the committee to push back against those privileges because we have to go through a civil litigation process, and that takes a long time. We were on a very fast track. We were going to expire at the end of the Congress. And frankly, witnesses and their lawyers knew that by cooperating a little bit but then holding stuff back, our only remedy was to try to enforce that civilly, and that took too long, and they could essentially stall and not have to provide answers to those questions. So that was an impediment, and it made it difficult for us. 

Did you get a sense that there was an attempt by the people close to the president to protect him with these things you’re talking about, with not complying, with taking the Fifth? Did you feel like you were trying to pierce into a wall that was trying to protect him? 

Well, we did get some direct evidence along those lines. Yes, we had witnesses, multiple witnesses, tell us that there was a lot of communication between witnesses and lawyers. A lot of the witnesses actually were represented by lawyers who were paid by the Save America PAC or other Trump-controlled entities. And there were a lot of witnesses who presented to us, “I don’t recall. I don’t remember,” that other witnesses had said, “No, they were definitely in the room and would recall.” 

So we had a suspicion frequently that there were a lot of times when witnesses were cagey, holding back, very careful or straight up not truthful with the committee in an effort to try to protect the former president and others. 

… It also seems like part of your strategy was you had people like Cassidy Hutchinson, Sarah Matthews, you have people who are not the top rung. Was that an intentional strategy?

Yeah, anytime that there’s a hole in your sort of wall of evidence, you want to build around the hole, right? Like, we had some pretty significant holes. If you look at our investigation as a wall that we want to hold firm, you don’t just settle for the hole; you try to minimize it by building the blocks out around it. 

So Mark Meadows is a good example. He gave us very important information via his text messages, but then he refused to come in for an interview. So we talked to the people that worked for him who were present in the room when various important events occurred. And we got a lot of information about Mark Meadows and his role and those events from others. And that was very, very common. We were not going to settle for the hole; we were going to try to shrink it, minimize it by talking to people who could help us get closer and closer to a fulsome picture of what occurred. 

What’s the role of the chair of the committee, Bennie Thompson? He’s got all of these professional investigators working for him. What’s his role?

Yeah. Chairman Thompson is an incredible leader, and I became very, very impressed with how he managed the members of the committee. His role is overall responsibility. He is ultimately the chairman. He ultimately has decision-making authority if there are any disputes. But there was never one time when anything had to be put to a vote or when anyone had to lose. 

Chairman Thompson had an incredible ability to work with the members of the committee methodically, carefully, one-on-one to sort of bring everyone around to consensus. And that’s hard. Look, this was, just like it was for the staff, for the nine members of the committee, this was incredibly pressure-filled. They were facing sometimes threats of injury from outsiders. This was directly affecting their political livelihoods; several members of the committee lost reelection. 

So he was managing a group of very strong-willed and opinionated and talented people in a really deft way. I came away from this thinking Chairman Thompson, as a leader, was exactly the right choice for that important responsibility. 

People told us that the vice chair, Liz Cheney, played a really crucial role in the committee. What was her role? And also, why did her background matter that she was on the committee? What was her part of the committee? 

Yeah, Ms. Cheney was really involved in the investigation. She was present for a lot of our interviews. She was probably the member who was most directly involved in the day-to-day work. The typical congressional process is that the staff kind of does the investigative work and provides summaries to members. That was not the case here. Ms. Cheney and other members of the committee were involved, day to day, with turning the wheels of the investigation, attending interviews, asking questions, deciding to whom we should speak next. 

Ms. Cheney was important because of her background. She’s a Republican, a conservative Republican, and her participation, I think, brought a lot of Republican witnesses forward. There was sort of a level of credibility and trust because of her participation. Her personal relationships, candidly, really mattered. I think with witnesses like Attorney General Barr, Gen. [Mark A.] Milley, like some of the people with whom she had worked in the past, her personal involvement helped give them a comfort level. So she was crucial. 

And then in the very first hearing, she kind of laid out the theory of the case, right, the opening statement where she puts forth this multi-part plan to disrupt the joint session. That remains the core story here, so her articulation of that for the first time kind of the seminal moment of our work. 

That statement that she outlines, if you were to compare that to the indictment, that you read it, if you were to listen to her on that first day, what would you be hearing? 

Yeah, I think that will sound very much like Jack Smith’s opening statement in the trial in March. It is a summary of how all this fits together: This Jeff Clark installation as potentially the attorney general and the fake electors—there’s a connection here. And that opening statement that Ms. Cheney gave in that first hearing sort of shows how these things are sequentially deployed, how the pattern fits together. And that is exactly what I think the prosecutors that work for the special counsel will set forth. These are not anomalous, happenstance events. These are methodical, intentional, planned events with a very specific goal in mind, and that’s what she laid out in that opening statement.

She’s laying out essentially a criminal conspiracy, as they refer to it in the indictment. Did she know at that point, did you know at that point, as the public hearings are beginning, that that was what you were presenting? 

We knew that the story that we were telling could give rise to criminal charges, absolutely. I don’t know that there had been a decision in the beginning to make a criminal referral; we were still going on our investigation. But pretty early, it was obvious to us that what we were learning, the connectivity between those various prongs of the plan, did amount to a conspiracy and very well could lead to criminal charges. 

Tell me about those hearings, because they’re so different from other congressional hearings and especially that first hearing, which is a prime-time hearing. … What’s the room like? What’s that day like?

Yeah. Well, before we get to the day, just how the hearings came together was really interesting to me, because the committee hired a man named James Goldston, who was the former president of ABC News, and James brought in a lot of producers with whom he had worked on the Nightline program. And the hearings then became kind of a collaboration between investigative staff, lawyers like me, and TV producers. 

So we would, for example, look through an interview and say, “Well, here are the 10 things that are most relevant,” and then they would watch the videotape of that same interview and say, “Well, we like this clip,” or “We like that,” because they were more focused on body language and a witness’s facial expression and demeanor, so that the collaboration of sort of lawyers looking at this, like what are the relevant facts that put forth the core story, and the TV producers looking at this as what visually will resonate, what will be persuasive, that collaboration, I think, was really effective and informed all of our hearings.

During the hearings, yeah, you had a sense in the moment that we were part of something really significant, and there was a sense of anticipation at the beginning of each hearing about what we were about to present, the story we were about to tell. We knew that we had been in the bullpen there in O’Neill assembling this and that we were about to unveil another chapter, and there was an excitement there, because we knew that the information was substantial, was credible, our witnesses were so, so effective and powerful that there was this real excitement about being able to finally tell pieces of the story over the course of the summer. 

You talk about the video. It sounds like from reading about it that like really like a video production, there’s a video room; there’s graphics in another room. What’s it like behind the scenes, and was that different from other congressional hearings? 

Yes, it was very different. So again, we had a script. Every single word of the hearings, every single clip in those videos was carefully chosen, ultimately by the members. We had several rehearsals for each hearing, and they were changing the language up until sometimes the morning of the hearing. We wanted to get it right. We wanted it to resonate. We wanted it to be credible and corroborated. And again, I think it was. I think I was always focused on ensuring that we weren’t taking a clip out of context or we weren’t creating a misleading impression, because you might win in the moment by showing something, but you lose long term if, over time, that clip is seen as out of context or inconsistent with the overall narrative. 

I knew from the beginning that we were going to provide to America all of our interviews, all of the transcripts, and that was important, because people could then judge for themselves whether that hearing took a clip out of context and didn’t tell the whole story. It was important for us not just to show the sum of the equation, but the worksheet that informed that sum. So that gave me a comfort level as well, that all of this was going to be evaluated over time. And it’s really speaking to history as much as it was the audience in that room. 

When I heard that on that first day and they played the first clip, I think it’s Barr talking about BS, what was it like? Were you surprised as you start using the video?

Yeah, I was surprised. I didn’t know that lawyers asking questions in a conference room would end up being compelling television. When I was interviewing Attorney General [Bill] Barr and he was throwing around, “I told the president it was bulls—,” I knew that it was important, that it was going to matter, but I was surprised that the actual video of that was going to feature so prominently and end up being so important. 

But upon reflection, I understand that people want to see the real stuff, right? They want to hear Barr himself describe it. If Jamie Raskin or Liz Cheney had read what he said, it wouldn’t have the same persuasive effect. So I came to realize, OK, it’s not lawyers asking questions; it’s [a] real-time account from people who were there, who are telling the story. And again, their body language, their facial expressions—that’s persuasive in a way that a secondhand account of it would not have been. 

And the clip of Jan. 6 itself, to show that in the Capitol.

Yeah, that never lost its power for me. I spent a lot of time looking at footage of the violence, and you really never kind of become numb to it. It’s just so evocative and so powerful that even now when I see footage, even footage that I’ve already seen multiple times, there’s an emotional reaction. It was so horrific and so shocking. And we were showing it in the building, in the Capitol building where this all occurred, actually across the street in an office building, but right there in the same area. 

And our members were victims, right? They were taken to a secure location. They themselves were directly, personally affected by this in a way that a lot of us on the staff were not. So there was a lot of emotion that went into the use of that footage, bringing it back. 

And this is common in the criminal justice world; I’ve dealt with this my whole career. Retraumatizing people by having them relive the story is difficult. It’s necessary if you’re going to get information, but you have to be sensitive and thoughtful about it. And there were a lot of witnesses that we talked to that, frankly, broke down and were emotional in recounting the fear that they experienced on Jan. 6.

As you play out that story over those hearings, what’s the thing that you think that you added that we didn’t know from what had seemed like had happened in plain sight? 

Yeah, I think we added several things. I think we added a through line of intentionality that was not obvious at all before our hearings. Again, the episode about what is occurring with the vice president behind the scenes versus the violence at the Capitol, there’s connectivity there, and the way we were able to show how all of this fit together in a pattern and in sort of an escalating series of steps designed to not only disrupt the session but ultimately prevent President Biden from being certified as the winner, that was new.

And I think we also did get into some information about what happened at the Capitol that also had not yet been made public. The Department of Justice was very focused on the Oath Keepers and the Proud Boys. They had seditious conspiracy investigations going as we were doing our investigation. But one of our hearings, we actually showed the sort of initial breach point was at the Peace Circle. This is Caroline Edwards, the officer who’s pushed back with the bike racks and concussed. That’s the Proud Boys. Literally it’s the closest point from the Ellipse to the Capitol complex. They breach at the Peace Circle, and that becomes essentially the tip of the spear in the attack on the Capitol.

Isolating that moment and the Proud Boys’ role in that moment was also new. I don’t want to say it was new to Justice because, again, they were already investigating that, but it was new to America. So both stuff about Jan. 6 itself, but also the broad connectivity of all the points, I think that, over the course of our hearings, was new information. 

Somebody told us that over his career, Donald Trump had avoided criminal liability in a lot of cases, even perhaps in the description of it in the Mueller report because of the difficulty of describing his intentionality, his mental state, what it was. How important was that to the investigation, to what you were presenting?

Very important. It was important to us all along, and we paid particular attention to evidence of the president’s— potentially evidence of his intent to disrupt the joint session. What did he intend? That was not because, again, we were trying to make a criminal case, but because it was an important part of the story. 

So we developed a lot of evidence from people that spoke to him. We developed a lot of evidence of his understanding, his belief, not only about the election but about the vice president’s power and about what might occur on Jan. 6.

And some of our most important pieces of evidence directly reflect his intent. His strong desire, for example, to travel to the Capitol after his Ellipse speech; his desire to somehow impact the joint session. I don’t think there could be a more powerful manifestation of his intent to prevent that certification from going forward than his desire to go with this angry mob to the Capitol during the joint session.

So those moments that directly bear upon his intent emerged as kind of some of our most central findings. 

… Let me start with where a lot of people start, which is election night. What is going on behind the scenes? Because the committee certainly adds some color to what we saw, which was, “Frankly, we did win this election.” And the committee adds this color about what Giuliani is like on that day, and you talked to the top presidential advisers. Can you help me understand that night and why it matters?

I think it’s really emblematic of what happens throughout the relevant events, because you have the vast majority of people telling the president the truth: “It’s too early to say anything. It’s undecided. There’s still a lot of votes to be counted. You should do the responsible thing and tell America we’re hopeful, but we just don’t know.” 

Then there’s one voice that is telling him something different, and that’s Giuliani, saying, “You should go out there and declare victory. This election was riddled with fraud, and you should go out there and state that you have won.” So the president ignores the sound advice that he’s getting from Bill Stepien, from even Mark Meadows, from the political professionals around him, and he’s listening to Rudy Giuliani, who’s telling him what he wants to hear, who’s telling him, “You’ve won.” And he chooses that advice. 

And that became a pattern throughout. He gets truth; he gets candid advice all the way up into the end from a lot of really capable people that did the right thing, that elevated principle over politics. But then there’s this other side. Stepien calls it “Team Normal vs. Team Crazy.” [Trump] is increasingly enamored with Team Crazy and is marginalizing Team Normal. That happens on election night, and that then becomes a through line that happens throughout the events that lead up to and past Jan. 6.

How important is it to hear from somebody like Bill Stepien, from Jason Miller, from those other people that you have in these depositions? 

Tremendously important. These are the people that were the architects of the president’s campaign—his attorney general, his White House counsel, his daughter. Our witnesses were all very, very close to the former president, all very much helped and wanted him to win. That enhances their credibility. When Bill Stepien, who is the manager of the campaign, says, “We explained to him that he lost, why he lost, and then we were marginalized. We were no longer involved as Team Crazy took over.” That’s really important evidence. 

In every investigation, witness credibility is paramount, and bias in either direction is something that lawyers develop. Here, all of the incentives, all of the bias, was for the former president, so those witnesses were crucial. And we were fortunate that a lot of them came forward, that Bill Stepien, that Pat Cipollone, that Bill Barr, that a lot of these close advisers were cooperative with the committee. 

When you were in those depositions with them, are they reluctant because you’re Congress; this is their party? As you’re interviewing them, how hard is it to get something out of Bill Stepien or Jason Miller or Ivanka? 

Just like in a murder investigation, everybody’s reluctant. Nobody is there happily. But there were professionals who, despite that reluctance, when they were under oath, they told the truth. They believed that they had a higher obligation not to this person, but to the truth, and they did the right thing. 

Bill Stepien, again, I think he would have preferred never to hear from us, but when he was in the chair and he was being asked questions, he told us what happened; he told us what he remembered. Bill Barr, Mark Milley—the list goes on. 

Pat Cipollone was really interesting because he did assert an executive privilege, not out of personal loyalty to President Trump, but he felt like there was an institutional issue here, that White House counsel need to be able to provide candid advice to presidents of the United States without being worried that that advice will someday be the subject of congressional oversight. So Pat Cipollone was very focused on not establishing a precedent that kind of erodes that ability for lawyers to give candid advice to the president. And that’s a legitimate concern, and we respected that, although pushed him repeatedly to get as close to the line of what he was willing to share as possible. And he did; he provided really significant information, even in the midst of those executive privilege assertions. 

The report is pretty blunt. It says, “The president [of the United States] did something [that night that] he had planned to do long before Election Day: He lied.” What leads you to that conclusion?

The foundation for what he said on election night was laid well in advance, calling into question the legitimacy of mail-in and absentee balloting, the challenge to election procedures that are sort of COVID-related. And then we developed evidence that there’s discussion prior to Election Day about a declaration of victory. The tape of Steve Bannon talking to some people that is recorded where he says, “The president’s going to go out there regardless of the outcome and say that he won.” There was evidence that this was planned; that the voting really wasn’t going to slow down the declaration of victory and the sort of casting the results of the election into doubt because of the different process that we had to use in 2020 because of COVID. 

If you were the special counsel and you’re trying to make the case against Trump, what does it show, that he had been casting doubts about the election, that there had been this discussion close to the campaign?

It’s all evidence of intent, right? His understanding that this is part of a strategy all bears directly upon his state of mind. And that will be the central issue in the criminal trial, is the president’s state of mind. And evidence of what he believed, what he was told, by whom, how intentional certain things were, is going to be central to the case. 

At that point in the summer going into the fall, can you say, does he believe that there is fraud at that point? 

I think in the summer, there is a lot of concern about the prospect of fraud. At one point, the president is discouraging mail-in ballots, and Stepien and others say, “Eh, it’s not such a good idea; we actually want people to vote. And in some districts, it’s really important turnout, and we want—” So there’s a lot of discussion about the concern about absentee ballots and mail-in voting and whether or not that is susceptible to fraud. Even Bill Barr had those concerns. He had said some things before the election about some concerns about the prospect of voter fraud. 

It’s really clear after the election that those fears were not borne out. Chris Krebs, for example, says this was the most secure election in history. No evidence whatsoever of any kind of penetration of voting machines or of fraud in the tallying of ballots. It’s pretty obvious right away that those fears in advance really do not lead to actual evidence of any voter fraud. But the president nonetheless continues to state that, even though he’s told repeatedly that that’s inaccurate. 

What about those videos of Steve Bannon—I guess that’s an audiotape—but Roger Stone? How important were those to the case and also to the presentation that you make in the hearings? 

Yeah. They’re circumstantial, because we were not able to get Roger Stone or Steve Bannon or any of the people on the outside of the administration to cooperate with us. So their direct coordination with the president in the White House is, frankly, still, a little bit of an unknown for us. The fact that they have relationships with him, the fact that they are publicly making those statements is circumstantial evidence that this is something that the White House is either aware of or participating in, but we never really established that direct link about the president talking to Roger Stone. We know that he had some phone calls with Steve Bannon from his phone records, but the subject matter of those conversations we don’t know. 

As we go back to that period after the election, there’s some testimony that the president might have thought that he’d lost the election. What was that? Why was that important? 

Yeah, again, it all goes to state of mind. And we developed several pieces of evidence from several witnesses that he made admissions after the election that he had lost:

Gen. Milley says they were talking about a national security issue, and the president says, “Well, this will have to be passed to the next guy.” 

Alyssa Farah says she catches the president a week after Election Day alone in the dining room watching television. President-elect Biden’s on the screen, and he says, “Can you believe I lost to this effing guy?” Again, an acknowledgement that he had lost. 

And then Cassidy Hutchinson had some similar episodes where she talks about the president saying, “We can’t let people know we lost,” talking to Mark Meadows in her presence. 

So there’s a lot of evidence that there were times when he made statements reflecting the understanding that he lost.

And the other thing that hasn’t gotten enough attention in my view is that his campaign team—and this included his son-in-law Jared Kushner—went to him after the election was declared, and they didn’t just rebut the claims of voter fraud, but they explained to him their analysis of why he lost. They showed him the numbers, state by state, in the swing states, and it was the margins in the sort of outer suburban areas, like the Loudon Counties in Virginia, where his margin was much, much smaller than it had been four years previously. And they sort of assessed the reason for the loss was that essentially, that demographic or the voters in those outer suburban areas, in Atlanta or Detroit or Philadelphia or Washington, D.C., that was why he lost. It was underperformance in those areas. 

So again, they didn’t just rebut the narrative that there had been election fraud; they affirmatively provided a story and an explanation as to why he lost. That was all presented to him with numbers, with Bill Stepien, with Matt Oczkowski, the data guy, and Jared Kushner there, explaining to him. All of that’s really important because he does get candid advice, credible information; nonetheless, continues to publicly spin these baseless theories.

… And we’re watching from the outside, and we see Rudy Giuliani at Four Seasons Total Landscaping, and it seems like a joke at the time, and he’s ridiculed for that. As you investigated that moment, was it a joke? Were the things going on behind the scenes more serious than we all seemed to think they were?

Well, it was a serious effort to try to find fraud that never was successful. They were legitimately trying to investigate voter fraud. They just never found it. Bernie Kerik, who was the former police chief in New York City, worked with Mayor Giuliani there, candidly admitted: “We didn’t find it. We were looking for it. We believed that it might be present, but we were not able to find it.” 

Giuliani says that to Rusty Bowers. One of the most powerful moments of the hearings was Speaker Bowers from Arizona saying, “Giuliani told me, ‘Well, we have theories; we don’t have evidence.” That was the pattern throughout. 

Over time, when you’re not finding anything, it doesn’t change the narrative. They went to court 62 times. That’s where these things belong. Believe that there’s fraud, present them to state and federal judges—they did that and they lost every single one, but for one very small procedural victory in Pennsylvania that didn’t change the outcome. 

It’s the persistent forwarding of that narrative, despite the lack of evidence, that becomes increasingly irresponsible and ultimately criminal. 

That’s what you’re saying. They were looking for fraud, but if you go look at that press conference, they don’t just say that they’re looking for fraud; they say at that point on Nov. 7 that there is fraud. 

Exactly. And that’s why Rudy Giuliani has been disbarred. You can’t make statements that are false, even public statements that are designed to influence a process. They were making conclusory statements that were baseless for a political purpose. I’m not sure rationally that it made sense, because again, it’s easily rebutted or disproven, as it was in those court cases. But you’re right: They weren’t just saying, “We’re looking for it”; they were saying, “We found it, and dead people voted.” And none of that, ever, even to this day, has been proven. 

Rudy Giuliani did speak to you; others didn’t. What was his deposition like? 

He asserted a lot of privileges, attorney/client, executive. There were questions that he refused to answer. Over the course of the day, he did, though, open up and provide some information about interaction with the president. His narrative continues to be—or at least was with us, and I don’t know that it’s changed—that he has very strong suspicions about voter fraud, even though they haven’t been able to bring forth the specific evidence.

Again, it’s this weird circular argument, that a lot of people have concerns, and that’s the basis of this statement that there could be voter fraud. But, well, why do people have concerns, and what’s the underlying facts that would support that? Concerns—there’s not evidence that there’s voter fraud. So that’s the kind of thing he would say. 

And look, he’s too smart and he’s too experienced for that to be an accident. Our view all along was, these are very capable people that have to know better. 

Is that frustrating to be in a situation like that? You know that there wasn’t fraud. He’s saying that there is. Here you can ask him questions; he’s under oath; and you can say, “What is your evidence for it?” And yet he’s still pushing it? That must be a frustrating interview to do. 

Yes, but we didn’t expect much from him, candidly, given everything that we had heard about him from others. We didn’t expect him to be a Bill Barr or a Pat Cipollone or a Cassidy Hutchinson or anything close. We sort of expected that he would come in and try to use the opportunity as advocacy for his sort of meritless points about election fraud. 

So some people used our process for that, that came in really to make the same points that they had made publicly, even without foundation. It was, yes, frustrating, but I can’t say it was surprising. 

The indictment says that [Trump] faces this choice and that he makes his choice, and they point to that moment of decision to elevate Rudy Giuliani as the beginning of a conspiracy that they’re charging him with. How crucial was that decision? What does it say, that decision to make Rudy Giuliani the head of these efforts?

Yeah, I think it’s really crucial because it dictates the strategy for the rest of the seminal events up until Jan. 6. There is a moment at which Bill Stepien is essentially locked out of the campaign office, and Giuliani is in his physical office and has kind of taken over. And that is a choice where the president says, “We’re going to go with this plan, the Team Crazy plan, even though there isn’t really any foundation that it has basis, facts to support it.” And the careful voices in the room, the responsible voices in the room, like Stepien, are marginalized. Again, that is a choice. That’s not an accident. The president chooses to give control over the Stop the Steal post-election activity to Giuliani and the other people that were involved with him, and that marginalizes the pros that had been advising him up to then.

… The description as “crazy” or Bill Barr says, the “clown car.” … I’m wondering, does that dismiss the danger that he, Jenna Ellis, Sidney Powell represented?

No, I think it amplifies the danger because they became—the president got in the clown car, right? He didn’t watch it go by; he joined. He’s riding in it. And that’s what makes it so dangerous. The fact that these crazy—Bill Stepien’s term, Team Crazy, was able to have such influence, essentially quarterbacking or articulating the strategy, is really dangerous. The Bill Barrs of the world that saw it, and the Bill Stepiens of the world that saw it as crazy, the Pat Cipollones of the world, again, their voices fade, and Giuliani’s and the others’ emerge. That’s what makes it so dangerous, was the traction that they got. 

We’re not doing all of the conspiracy theories, but one of them that comes up, that just keeps coming back is the one that’s raised at the RNC press conference, where it was Giuliani and Sidney Powell, and she’s talking about Dominion and Hugo Chavez. What is that allegation that she’s making? And at that point does it seem like it’s true?

No. And that is actually the thing that creates a breach between Giuliani and Powell. We actually get a month later to that crazy meeting in December at the White House, where Powell is talking about foreign interference with election machines, which then would justify the seizure of them as a national security imperative. And Giuliani, even Giuliani, says, “No, we can’t do that; there’s not that evidence.” 

So they’re not always aligned. The other facet here of Team Crazy is that they’re sort of freestyling a little bit and they’re not always completely all on the same page. There is a rift between Powell and Giuliani, in part over this Venezuela stuff. But that never got traction, even from some of the hard-core members of Team Crazy. 

But the Dominion claim did.

Yes, broad claims about Dominion and the voting machines being penetrated, again, absolutely no information whatsoever. The Department of Homeland Security, CISA, like Chris Krebs led, looked very closely at this. Dominion machines are essentially tabulators; they scan paper ballots and just keep count. No one is voting electronically via a Dominion voting machine. They’re just—the technology doesn’t allow for some of the narratives that we’ve heard about Dominion. And the defamation suit that they’re bringing against these lawyers, and the success that they’re having is further evidence of that. 

But it does take off. And the president seems to seems to buy into this claim. And I guess one person who doesn’t buy into it is the attorney general, Bill Barr. Tell me about how you could get a deposition with him, or an interview with him, what it’s like, how important that was. …

Yeah, that’s an example of Ms. Cheney’s relationship with him, I think, really made a huge difference. She made the initial outreach to Attorney General Barr and facilitated his cooperation. He made a decision, I think, before he came into that room that he was going to tell the truth. He was not a witness where we had to kind of pull teeth to get it. He was ready to go when he arrived, and he provided really important information about what he did looking into, launching people to look into those allegations, the lack of evidence, and his candid advice to the president that it was “bulls—,” right, in his words; that he told the president to his face repeatedly, there is just no evidence of systemic fraud sufficient to undermine confidence in the outcome. It actually led to his resignation before the end of the administration because of the breach that it caused with the president. 

As you’re sitting there, and he’s not only direct, he’s profane, and he’s saying what he told to the president, what is that like? Do you realize in that moment this is a crucial piece of the story? 

Yes. Yes and yes. Look, asking questions, it was very easy. I think it was one of the experiences over the course of the committee where really “Just tell me what happened next” was sufficient and he was ready to go. And yes, in real time, both in terms of the sort of strength of his opinion and the demonstrative way that he told the story, and the fact that the camera was rolling and that we knew we were capturing this, we knew that that was a very significant moment. And it turned out to be, with good reason. 

And what’s the evidentiary value of the attorney general of the United States saying this to the president as we look towards your report and the eventual indictment?

I think it’s important in two ways. The evidentiary value is crucial because they looked. They evaluated suitcases full of ballots being pulled out from under the table at the State Farm Arena and this truckload full of discarded ballots in New York. They actually investigated, the FBI, at the direction of the attorney general, investigated these and were able to say “We looked at that. That claim that you keep making, that you made, Mr. President, on Jan. 6 on the Ellipse, we rebutted that with FBI agents actually looking into it.” 

It was also important because of Barr’s role in the administration. He was such a champion of the president, of a robust executive, critic of the Mueller report. He was someone that everybody knew was aligned very closely with the president’s agenda. He was a conservative attorney general that wanted very much to return to a pro-law enforcement approach to criminal justice. So he, right, even someone who was that close to the president on matters of policy, was appointed as his attorney general, his credibility was so strong because of his role in the administration. 

… When you’re reconstructing these conversations with the president, is the president, how is he engaging with the evidence? Is he probing it and talking about it on a detailed level with somebody like Bill Barr? What does his interest seem to be in the truth of these allegations?

Yeah, a lot of witnesses, Barr included, said that when confronted with this, he would just move on to the next thing; that no, there was not a lot of attempt to drill down or to get deeper into the nuts and bolts of the allegation. It was, “I heard this,” and Bill Barr would say, “Sir, we’ve looked at that; that has no basis.” He’d say, “Well, what about that?”

There’s one moment when Rich Donoghue, who is the acting deputy attorney general, writes in his notes: “‘Just say it was corrupt, and leave the rest to our congressmen.’” That suggests that the president isn’t really interested in the Department of Justice finding voter fraud, but is rather interested in the Department of Justice saying that they’re looking into voter fraud, because that then becomes a predicate for congressional action.

Jeff Clark, who was going to be installed as attorney general, essentially proposes sending a letter to state legislatures saying, without factual foundation, “We have very strong suspicions of voter fraud and are conducting investigations. You should pause or hold a special session.” 

So the truth didn’t matter as much as the fact of an investigation that would create potentially a political impetus to have these fake electors submitted or to send it to Congress. Again, that’s part of how this all fits together. These are not incidental, isolated acts, but rather part of a coordinated strategy. 

One of the things you do is piece together, Bill Barr said this this day; the next day [Trump] records a Facebook video; he repeats the allegation. And the committee puts together a compilation of these events, of the president was told one thing; he said something else; he was told—that it’s not just Bill Barr; it’s over and over again. Tell me, how did that come together, that montage, that idea of presenting it that way?

Yeah, look, the “Big Lie” was such an important motivator here that we felt like we really needed to take it on; that an important part of the committee’s work was to show conclusively that there was no voter fraud, and not just that there was no voter fraud, but that the president was told there was no voter fraud again and again and again. 

So this is another product of the collaboration between lawyers and producers. And I know our members themselves very much wanted this sort of split screen: Bill Barr on Dec. 2 says, “We looked into that Detroit thing,” and then on Dec. 6, the president’s out there repeating it despite that. The juxtaposition of the advice and the public statements was something that—I know that was something our members really wanted to show, because again, we had to take on the Big Lie. Part of the committee’s role was to just rebut that for America once and for all. There’s a strong public interest in just exposing the fact that it is a lie, that there is no evidence of systemic fraud sufficient to undermine the outcome, as Attorney General Barr had said. 

It’s not a crime to lie, but the indictment lists the defendant’s knowingly false statements as part of the conspiracy. … Why do these lies matter for this upcoming criminal trial?

Yeah, you’re exactly right. Lying is not criminal, so if the president had simply continued to publicly say the election was stolen, but without doing anything to implement a practical plan, to achieve an outcome consistent with that, then it wouldn’t be a crime. You can go out there on the Ellipse on Jan. 6 and say, “The election was stolen from me.” The problem was that he didn’t just say that; he then took subsequent steps to inform a strategy to prevent the certification, to interfere with or disrupt the joint session. It’s the act that implements a strategy beyond the lie that makes it criminal, and that’s what the special counsel has to show. It’s not just about belief in the election; it’s about a strategy to prevent the transfer of power without a foundation for that. 

… You have this chapter, that part of the story is the pressure on local officials, on state officials. Why is that an important part of the story?

These state and local election officials, state legislators, feel an enormous pressure—calls from the president of the United States—to do things without factual foundation. Again, their role is to count the ballots and reflect the tally with the certification. And the president and others’ attempts to, without being able to show them evidence of fraud that they should do something else is evidence of, again, intent, specific intent, to disrupt the joint session and do something unlawful.

It would be one thing if they were saying, “Hey, look at all this stuff that we have found in Michigan or Pennsylvania; look, here’s some stuff for you to investigate.” They’re not saying that. They’re saying, “You need to go look, and we know that there’s fraud. Stop the counting, or send this alternate slate.” They’re not offering facts; they’re offering the suggestion to do something without fact. And again, thankfully, there a lot of heroes in the story. There are a lot of people that resisted that and said, “No, we’re not.” Rusty Bowers, Brad Raffensperger, people that said, “I cannot do what you are asking me to do.” “You are asking me to violate my oath,” is what Bowers tells Giuliani. A lot of people stood up to that pressure and did the right thing. 

Why did you decide to highlight the story of Rusty Bowers in the hearings in the story? What was it about his story that made it one that you guys wanted to tell?

… Rusty Bowers is just a compelling person. It’s hard to talk to him and not believe him. He was—is—a very conservative Republican, speaker of the Arizona House, but his personal victimization, the fact that he was vilified, that he had direct threats, people outside of his house, there’s a victimhood here that is emotionally really powerful.

And the stories that he told about his direct communications with the president and with Giuliani were just so indicative and so powerful of the same pattern that he was kind of an obvious choice, frankly, for somebody that America needed to hear from directly. We had already interviewed him, but putting him on live in a hearing to retell some of that stuff, with the cameras rolling on national television, I think was the right choice, because again, he was so credible and so powerful. 

This is a little bit confusing, but what was it that they wanted him to do?

They wanted him, as the speaker of the Arizona House, to officially submit an alternate slate or to call a special session to note patterns of voting fraud, again, that did not exist. They wanted him, in his official capacity, to prevent the Arizona electors from being certified for President Biden. 

And as you said before, in those conversations, they’re saying, “Where is the evidence?,” and he’s saying, “We’ve got lots of theories.”

Exactly right.

Why does that matter? 

Because again, it is encouraging him to do something that has no basis in fact or law. That’s criminal, right? That’s intentional. And Bowers says as much. He says, “You’re asking me to violate my oath. I do not have the legal authority, just because I voted for the president and wanted him to win, to take an action that’s inconsistent. The will of the people in Arizona was, President Biden won that state. That means we have to certify the electors from Arizona for President-elect Biden. I can’t do it any other way.” 

Despite that, the president and Giuliani insist that he should, and he calls him out by saying, “You’re asking me to violate my oath.” Really, really important. 

You used Gabriel Sterling. You use him actually as much, I think if you look at it, as much from his press conference and what he was saying at the time as you do in his testimony. Why? … What does that add to the case or to the report?

One of the things that I have learned as a lawyer is that when you are presenting information, you have to humanize it. And this was not just some legal theory about whether the vice president does or doesn’t have authority or whether these alternate electors are or are not valid. They’re real people who are victimized, and Gabe Sterling in that press conference makes that point emphatically. 

So what we were doing over the course of the hearings was not just sort of telling the legal story but humanizing it. The clips from the press conference and him in the hearing room talking about threats to election workers—Ruby Freeman and Shaye Moss in Georgia, and [City Commissioner of Philadelphia] Al Schmidt in Pennsylvania, and Rusty Bowers in Arizona—these are real people who were threatened. [Michigan Secretary of State] Jocelyn Benson with people outside of her house while she’s putting her child to bed. We wanted those moments to demonstrate that this is not some esoteric theory, but it has real consequences for people. That strengthens kind of the urgency of the presentation. 

… Tell me about interviewing—I don’t know if you’re in the room or not—Ruby Freeman, because her story’s powerful, to hear her describe it.

Yeah, very powerful. Again, humanizing this, you can’t listen to Ruby Freeman or her daughter without this palpable fear for them. They were called out specifically, repeatedly, by the president [of the] United States. All they did was volunteer to be election workers and count ballots, but this false allegation of pulling suitcases out or passing along a ginger mint back and forth gets spun up into this baseless theory. Not an accident. It is meant to stir up people’s anger.

And these two Black women who are doing their civic duty by making sure our elections process in Georgia is done are vilified. That is awful. And their willingness to step up and tell that story was a really important part of our process. Again, real people’s safety is at stake here. This is not just some theoretical exercise. 

… How important a piece of evidence is the Raffensperger phone call?

Very important. I remember Adam Schiff saying, “We need to play the Raffensperger call as much as we can because it’s so important.” The president of [the] United States is putting pressure on a state official, again, without foundation to do something that he can’t do. And Secretary Raffensperger calmly rebuts these allegation after allegation after—“No, sir, that’s not accurate”; or, “We looked into that; that’s not true.”

Despite that, the president continues to push him. And then the statement, “We just need to find 11,000-whatever votes, one more than we need”? Just hard to imagine a more dramatic manifestation of his intent to cheat, of his intent to impose on what he thought would be a political ally to do something that would result in him winning Georgia when there was no foundation for that. 

I feel like Raffensperger does, but do you sense there was an implied threat or an explicit threat in that phone call?

Absolutely. He says, “That could be criminal for you and for your lawyer.” Again, crazy to imagine a theory by which a secretary of state would have criminal exposure, but he absolutely threatens him. And Raffensperger says as much. He said it to us in his deposition, that he felt like that phone call was directly threatening. 

It’s rare in an investigation that you’re going to get, sort of in his own words, direct evidence from the leader of the conspiracy. So every piece of evidence we had—a recording of the former president or a direct account of somebody who spoke to him—that was really important, right? It’s not circumstantial. That’s direct evidence of what he said and what is on his mind. So the Raffensperger tape is important because it’s his own words. It’s not somebody saying what they told him; it’s what he’s saying himself in the moment. 

So this is part of the indictment, and if Trump’s defense attorney says to you, “Well, none of this actually happened. Raffensperger didn’t try to do anything. The legislature wasn’t convened in Arizona. Nothing happened, so there was no harm done,” how do you respond to that as a prosecutor? 

Yeah, a conspiracy is an agreement. It’s an intent to do something, an agreement to do something criminal. And if two people say, “We’re going to go rob the 7-Eleven,” but they’re not successful—they try to, but for whatever reason, they don’t get away with any money—that doesn’t remove the fact that it was a criminal agreement to commit a crime and steps taken to accomplish that. Absolutely. The results were ultimately certified for President Biden. The multi-part plan to disrupt the joint session was briefly successful, because the session was interrupted, but it was not ultimately successful. That doesn’t make it any less criminal. 

Again, it was not successful because of Brad Raffensperger and Mike Pence and a lot of people that stood up and said no. But for them, it would have been successful. So the lack of success does not create a legal defense to the intent, the agreement and the steps taken to make it succeed. 

To set aside the criminal element of it, I’ve talked to people who have said the system worked; it held; we can move on from this. How do you feel about that? Did we did we come close? Could we have gone a different way? 

Yes. And people have asked me since the committee ended, what was the most surprising thing you learned? And my answer is always how close we came to a different outcome. Democracy depends on people of good faith doing the right thing. It is not foolproof. It is informed by the exercise of discretion, people being willing to do their duty. That happened here. Thankfully, enough people stood up and did their duty. 

But if they had not, if the clown car had been more influential or people had been willing to sacrifice their duty for a politically expedient outcome, it could have been different. So democracy is sort of earned, not given. It has to be something that we work to maintain. We need good people to step forth and be willing to carry on those obligations.

That happened here, but other people, it may not have, and that’s what continues to be a risk going forward. 

One thing that people have credited the committee with is drawing attention to this idea of the fraudulent electors theory, which probably didn’t get attention because it’s a little bit complicated and a little bit convoluted. What is it in the simplest terms? What was that plan? 

So the Electoral Count Act says that the joint session is for Congress to open and count the ballots that are submitted by certified electors by each state. So literally the proceeding is state by state, accepting what the state has certified, and counting it. And once we hit the threshold of sufficient electors, a person who has those electors pledged to him or her wins.

The fake electors are important because they are not certified by the secretary of state or any official entity, but they are put forth to Congress as—we called them fake electors; others called them alternate electors. But they’re fake because they’re not the official submission from those states. 

The theory was that if Congress or the vice president had a Biden slate and a Trump slate from Arizona that they could then independently choose which of them to accept. The problem is that the law says each state must certify;  there’s one official slate. States don’t certify two. And each state, by law, submits electors that correspond to the results of the popular vote in that state.

So they count the votes, and if Biden got more votes than Trump in that state, then the electors go to Biden. These fake elector certificates purport to be official. That’s why they’re potentially criminal. They are submitted as official, but they’re not. And they go to Congress, and Mike Pence, correctly, says, “I have no authority to do anything but count the certified, officially certified ballot.” So it falls short, but the attempt is to create a sort of predicate for the vice president or Congress to choose these other slates. 

How important is Ken Chesebro, because the federal indictment points to a particular memo as a key part of this conspiracy. How important was he? 

Yeah, Chesebro is one of the architects of this theory that says we should have the contested states submit these fake electors. He’s a lawyer with credibility, and he puts this theory out, and it is persuasive, and some people follow the direction supported by President Trump himself, by the RNC. And the submission of fake electors is supervised by the remnants of the Trump campaign in Washington. But the Chesebro memo is the architecture for that. 

And how important is this, because the electoral votes are to be counted by Congress on Jan. 6, which is a key date, the date your committee is investigating. How important is the fake elector memo/plan to putting a target on that date?

Yeah, it’s crucially important, because again, if the plan had worked, it would be Congress choosing between these two slates, state by state. What are we going to do about Arizona? Are we going to accept the Biden slate that has the secretary of state’s seal on it, or are we going to select this fake slate? The plan was for that to play out in Congress on Jan. 6, either have the vice president do it or members of Congress debate and do it.

So it does centrally make Jan. 6 at the Capitol the forum. And that then draws attention of all the protesters and the president’s social media posts, “Will be wild!” All of that, together, combines to create the pressure that erupts on Jan. 6 at the Capitol.

So that tweet that he says, the “Will be wild!” tweet on Dec. 19, comes after a sort of crazy meeting. We see the tweet on the outside. What do you discover about the background, about the intent of the president when he issues that tweet? 

So he has just been told earlier that night that they can’t seize voting machines; martial law is unwise. He’s increasingly desperate. There are very few options left. So our theory was, he turns then to launching a mob at the joint session. That becomes the last and most desperate prong of this multi-part plan to defeat the joint session. 

We also heard from a lot of witnesses who pointed to that tweet and other similar statements by the president as the reason they came, people who said, “I came because the president wanted me to. He asked us to come.” We presented people saying that on tape during our hearings. So it was not just rhetorical; it was taken seriously. That’s the thing even now, right? When the former president, whatever he says, people take it seriously. When he says, “Be there. Will be wild!,” there are a lot of people in this country who say, “I’m going to Washington, and it is going to be wild.” It motivated people to come to the Capitol on Jan. 6.

It didn’t just motivate people. As you guys investigated, it motivates extremist groups. As you dig into it, what did you see in that regard?

Yeah, it had motivated Oath Keepers and the Proud Boys to organize, to have stack formations and training, and weapons stashed just outside of the city. There’s an expectation that this could be the beginning of sort of an armed insurrection or conflict, that the tyranny that is being enforced inside of the building needs to be overrun by patriots. There are a lot of people that compare it to 1776, that see themselves as patriots pushing back against a tyrannical government that’s about to implement the results of a stolen election. 

None of that is true. It’s all informed by the Big Lie. But there are a lot of people there who saw it in those sort of apocryphal terms. 

… The Electoral College has met in the middle of December, and so by the time you get to Dec. 19th, a lot of the court cases have also stalled out at the Supreme Court and other places. So as he’s sending that tweet, you just said that what’s left of Team Normal has stopped the seizing of voting machines, and maybe thinks that they won by the end of the night on the 18th. So what does that context tell you also about where the president, his state of mind, when he’s sending that tweet? 

Yeah. I think you have to look at the sequence of starting with court cases, moving to investigating allegations of voting fraud, potentially before Dec. 14 when the Electoral College meets. The cases run their course. The Electoral College meets. People are saying no. Bill Barr has already told them there’s no evidence of voter fraud. So he’s running out of options, right? The sequence is increasingly desperate. 

It is the tweet that, when all those other doors are obviously closed, as of Dec. 18 or the early morning hours of the 19th, where he finally says, “I’m going to turn to my greatest asset,” which is the masses, is people who are going to go and make their voices heard, and potentially worse, at the Capitol to prevent this from happening. It is really important that the prior legitimate efforts, like the cases, have already run their course by then. That informs the incendiary rhetoric and his state of mind. 

The pressure campaign on the Department of Justice, you have a whole hearing about it with Jeffrey Rosen and Richard Donoghue and Steven Engel. Why have a whole hearing about it? Why make this story so central to one the committee is telling?

Yeah, a couple of things. One was that that part of the story was most accessible to us. So the Department of Justice waived executive privilege. No one was stopping short of telling us about direct conversations with the president. So it was, frankly, a little bit easier for us to develop that story than it was other parts of the story because of the Department’s approach to leaning forward and providing the information. 

Jeff Rosen, Rich Donoghue, Steve Engel, they all cooperated fully. They didn’t stop short of answering any question. And again, it was so indicative. It was trying to install an unqualified acting attorney general strictly because he was willing to do some things that Donoghue and Rosen, following on their predecessor Bill Barr, had said they could not do: No basis in fact or law to send this letter to state legislatures encouraging them to hold a joint session or to hold a press conference, another Clark idea, to sort of announce that there are really strong suspicions of voter fraud. 

The president is willing to consider putting in place at the Justice Department a person who is willing to do things inconsistent with its history and tradition or the facts. That, again, emblematic of a broader pattern of him listening to voices that are telling him to do something wrong, marginalizing people that are telling him to do the opposite. 

And when he says, “Just say the election was corrupt, and leave the rest to me,” or you read the letter, the draft letter that Clark has drafted, what is it that the president wants, and why does he want them to do it? 

Yeah. What Clark proposes and the president wants him to do is to send a letter to the legislatures in the seven contested states that essentially asks them for two things. It says, “Convene a special session of your legislature. Consider allegations of voter fraud, and consider the submission of a different slate of electors.” 

Two problems with that: One, there had not been any evidence that actually would give rise to pausing the submission of electors or revisiting it after—this is even after Dec. 14 that he wants this to happen. No factual foundation. And legally, for the Department of Justice to tell a state what to do about the conduct of its elections? That’s not the Justice Department’s role. Elections in this country are state functions. States have control over the elections. The Department of Justice can investigate voter fraud. They conduct investigations of individual allegations. But to federalize or to have the Justice Department make that kind of request is inconsistent with federalism, sort of who runs elections.

And Donoghue and Rosen and Steve Engel say that—no factual foundation for this, and this is outside of our lane legally. And they say, “Under no circumstances will we ever send that letter.” And that’s what gets President Trump to consider, “Well, maybe I need to put the guy in as the boss who’s willing to do that.”

It’s not clear to me from reading the report, did he actually do that? Because you say that there’s call records where it’s “Acting Attorney General Jeffrey Clark,” and it’s not just—and it is real pressure. It’s threatening their jobs. Did the president act on this?

Yeah, it does seem like there may have been a brief period of time on Jan. 3 when Jeff Clark was actually acting attorney general, or in effect was. I think there is a call log where he calls into the White House, and it’s noted on the log as “Acting Attorney General Clark.” There had been no official action taken, nothing submitted. 

But there is a period of time when Clark indicates to Rosen and Donoghue, “The president has offered me the position, and I’ve decided to accept.” That prompts Rosen to call Pat Cipollone and arrange this meeting in the Oval Office for that very night, and that’s when we have this meeting around the desk in the Oval Office where Clark alone is advocating for this, and everyone else is telling the president, “Don’t do this.”

… And some of the most dramatic pressure is on the vice president. Is that what happens is, as Liz Cheney is laying out, is this a cascade, and all of the remaining pressure gets pointed at Mike Pence?

Yes. As each door closes, as the Justice Department door closes, just as the litigation door had closed, he turns to his most loyal supporter, his own vice president, who, much like Bill Barr, had been shoulder to shoulder with him throughout the administration. And the hope is that Mike Pence will act in his political self-interest, in the president’s, and assert that he has the power to unilaterally select these fake slates or to send it back to the states. 

The problem is that the vice president does not have that authority, he’s repeatedly told he doesn’t have that authority, and is more faithful to the Constitution than to that request from the president.

The most irresponsible thing, in my view, is that when the vice president tells the president, “I don’t have the authority to do what you’re asking me to do,” the president then turns that public pressure directly at the vice president. He starts saying publicly, “If Mike Pence does the right thing, we’ll be very happy. I know Mike’s going to do the right thing.” The vice president has already told him, “Sir, I can’t do what you’re asking me to do.” So instead of accepting that, the president then launches the mob at him, literally is telling the world, falsely, that Mike Pence has the power to do this thing, putting enormous public pressure on Pence, and that obviously results in the “Hang Mike Pence” chants. And Mike Pence is another victim. He comes within 40 feet of rioters as he’s being evacuated from the Senate chamber. Terribly irresponsible to launch the mob not just generally at the Capitol, but at his own vice president.

How important was it to get the Eastman memos and emails to uncovering what was going on?

Yeah, really important. Going back to your question about Barr, this is similar, because it’s important substantively because the communications and the memos are part of that architecture of the independent state legislature theory and the fake electors and the vice president’s authority. But symbolically, it also matters because you have a federal judge in the spring of 2022 essentially finding that there’s evidence of criminal conduct. Chapman University, that was the custodian of these documents, passed through a privilege claim, an attorney-client privilege claim that Eastman had asserted.

The committee responded that there’s a crime fraud exception to the privilege, that if privileged advice encourages the commission of a crime, it’s no longer protected and confidential. And Judge Carter agreed with us that there was evidence that the president and John Eastman, conspirators, committed federal crimes, and that then overcame the privilege claim and unlocked the documents for us. 

So symbolically, with the judge’s finding of potential criminal conduct, and then substantively the documents themselves, it was a very, very important step forward for us.

And what did those memos reveal that they are doing? And is it a legal effort to do this, or is it an effort to go around the law? What do the memos reveal that the plan is?

So the Eastman memos are sort of the other half of the Chesebro fake elector memos. The Eastman memos are about the authority of the vice president. What is the vice president’s role on Jan. 6? For years and years, it had been understood to be, he just opens the officially submitted ballots that are submitted by states. 

The Eastman theory is that the vice president actually has more authority and can pick and choose between competing slates, or can send the electors back to the states; that he’s not simply counting the submitted certificates, but he has some independent authority to, based on some suspicion of fraud, to reject certain.

And the vice president says, “No, there’s just no foundation for that.” He sees his role consistent with history, as much more limited. And Eastman even concedes that it would lose 9-0 in the Supreme Court. There are many times where he has acknowledged that his theory does not have any precedent whatsoever.

Nonetheless, that’s what he is suggesting, all the way up to the last minute, that the vice president do.

He acknowledges that he would lose?

He does. He acknowledges to Greg Jacob and to Marc Short in a meeting with the vice president that he would likely, if this issue is litigated, he likely will lose. Jacob says 9-0, and Eastman doesn’t disagree with that. 

Another character from the hearings that nobody expected, Eric Herschmann, what was that interview like? Why was he a character who came out of the hearings, that people suddenly knew who he was?

Yeah, Eric Herschmann has got personality. He tells stories in a very evocative way. He curses. He’s real. We interviewed him remotely, and he had this baseball bat that said “Justice” on it over his shoulder, and metal casts of his children’s hair, and then this painting behind him that I think was from some movie. 

So he just was sort of an interesting character. And his profanity, his manner of speaking made him a compelling character. I think he was like that in real time. Some of what we heard about Herschmann in that meeting on Dec. 18, for example, almost sort of challenging Mike Flynn to a fistfight, there’s a lot of moments where Herschmann, his emotion and his strong personality comes through, and it certainly came through during the interview and provided for clips that really resonated. 

He talks about confronting Eastman and warning him about violence. And his legal analysis is also like, “Are you out of your effing mind?” How does he add to that story about Eastman?

Yeah, he is one of the people that told Eastman that this won’t work, that this is crazy, that tried to talk Eastman out of continuing to put forth. And then he actually ties Eastman to Jan. 6 the next day. He has a conversation with Eastman after the riot has occurred, where he essentially blames him, and he says, “You’d better get a good criminal defense lawyer, because you’re in part responsible for this.” Well, that view, formed right away, became an important part of our presentation. 

The meeting with Eastman, Pence, Trump, and that question of Trump’s intent: What does it reveal to you that pressure, him watching Pence debating back and forth, debating back and forth with Eastman? 

Yeah. Again, there are many times over the course of this story where people tell the president the truth, where he is confronted with reality—Bill Barr saying the election fraud theories are bulls—; Mike Pence saying, “Sir, I do not have the authority that you suggest I have.” And it’s despite that, despite loyal people like Barr and Pence telling him that, nonetheless, he continues to persist in some belief in a different outcome. 

And as I said before, what’s really important about the meeting with Trump and Pence is that it’s after that that the president publicly is telling people, if Mike Pence does the right thing, then we win. That focuses the attention of the crowd on the vice president and puts him directly in the crosshairs. And that’s what’s so irresponsible.

People have told us that the Cassidy Hutchinson testimony, the moment that she has a hearing, is sort of a hinge point. How important was it? How did she come to the committee and to this sort of very dramatic hearing? 

Yeah, it was hugely important for us because she is in the room where things happen and is willing to talk about it, even though the person for whom she worked was not. We had a couple of interviews with Ms. Hutchinson earlier in the investigation during which she claimed not to recall various things. She was represented by a lawyer who she didn’t select, who was paid for by an organization of which she was unaware. And after those couple of interviews, she came forward again and wanted to provide additional information. I believe Alyssa Farah was involved in that. She and Alyssa Farah were close, and Alyssa encourages her to come back. And she has another lawyer now, Jody Hunt, who represents her. She no longer has the Trump-funded lawyer. 

She basically told us that she felt pressured to withhold information by her prior lawyer and that she had recalled things that she claimed not to have recalled. And she then provides additional information about some of the same things we’d asked her about and then some new stuff that we hadn’t asked her about that we didn’t know about. 

That’s all really important information, because again, it goes right to the president’s state of mind: his desire to go to the Capitol after the Ellipse; his awareness of the presence of weapons in the crowd; his acknowledgement in December when the Supreme Court, Texas v. Pence goes the other way, that “We can’t let people know we’ve lost.” She has very specific information that bears upon his state of mind.

And her courage and willingness to do that by herself in a nationally televised hearing contrasted with a lot of the other people that weren’t willing to step up and tell the truth. For all those reasons, it became a really important hinge point in our process. 

I’ve heard that Liz Cheney was crucial in her testimony and in that special hearing being called. Is that right, that she was connected with or became connected with Hutchinson and was sort of pushing for that?

Yeah. Yes, Ms. Cheney, I think, was involved in the interviews of Ms. Hutchinson over the course of the investigation and was, I think, was part of the reason why Ms. Hutchinson came back, because she trusted Ms. Cheney. So yes, absolutely, the vice chair was central in the development of the Hutchinson evidence and the desire to put her on as a witness. 

What was the hearing like when she does come, and she’s the only witness, and nobody knows what—there’s suddenly like, an emergency hearing is called. What was that like? 

Yeah, it was different because it was the only witness, and a lot of it was relatively new. We didn’t have possession of that information for very long before we put her up there as a witness. 

And again, since we had heard her in these most recent interviews provide really important information that was new, it was consistent with what we were developing, but it was additional detail. We knew that it was going to be explosive, and we knew that she had a poise, that there was something about her. A lot of this, frankly, is sort of assessment of credibility, is you spend time with people and you get a sense of how they’ll be as a witness. We had a sense that Cassidy Hutchinson was going to be a good witness, young but very smart and would make a credible impression on America. And I think that’s what happened. 

One of the things you have from her, you also have I think a draft tweet, is this idea that it wasn’t impulsive to say, “Let’s go to the Capitol.” What was the evidence that it wasn’t, and why does it matter? 

It was not at all impulsive. The president raises multiple times in the days before Jan. 6 the prospect of finishing his speech and traveling to the Capitol. Again, I think that goes directly to his intent. The charge in the pending indictment is intent to disrupt an official proceeding—disrupt, interfere with or impede, I believe are the words in the statute.

The president’s desire to literally physically travel with this crowd that he acknowledged the night before was angry, that he was told that morning some of them were armed, to the Capitol where the proceeding is occurring? Direct evidence of his intent to interfere, impede or disrupt that session. Ms. Hutchinson really provides really important pieces of that evidence of intent. 

As you go to Jan. 6, as you say, the vice president has told him he’s not going to go along with his plans, and so that’s one of the things that he knows. He also, as you say, has been told about weapons and magnetometers in the crowd. Help me understand that moment right before he walks out to give that speech and what those things tell us. 

He is aware from people in the White House that morning, from his own observations the night before, about the sort of energy in the crowd and the prospect of violence and danger, and that really informs his rhetoric. He says, “You have to fight like hell, or you won’t have a country anymore.” The words are informed by that, by that knowledge, the knowledge of the anger and the potential for violence. 

I think it will be central to the special counsel’s presentation, right, his knowledge of the danger of violence and infusing his words with an intentionality or a meaning.

And then that only gets stronger over the course of the rest of the day. He comes off the stage, and his first question is, “Can we go to the Capitol?” And the Secret Service tells him, “No, it’s not safe”; they haven’t mapped it out; they could try to do an off-the-record movement. The president’s movements are generally scripted, but sometimes they go off the record. It’s very difficult in the midst of an angry mob moving toward the Capitol for him to do that. So he doesn’t do it, but he’s frustrated because he wants to do it. 

And then, over the course of the day, there’s lots of evidence that he watches television, that he refuses to tell people to go home. What the select committee showed was that his first couple of tweets really could be read as encouraging people to stay. He says, “Stay peaceful, remain calm,” right? He doesn’t say, “Go home.” He says, “Stay, but be peaceful.” 

So he doesn’t take affirmative steps to stop the violence, even upon his awareness that people aren’t just peacefully protesting, but are breaking windows, hitting police officers and going inside the building. It takes hours, 187 minutes from when he arrives to when he issues this video statement, where he finally—and we have evidence—reluctantly tells people, “We love you, but this is what happens when an election’s stolen, but you should go home.” 

The irresponsibility, his refusal to talk to Mike Pence or the people that are responsible for the response, his lack of a strong statement telling people to leave until hours after the event had occurred all bear upon his intent. All of this is going to be front and center in the criminal trial. 

Was it a decision? Because one of the things you do is gather evidence of what people inside the White House, from Ivanka to Sarah Matthews to Cassidy Hutchinson, what their reaction was, what the president was being asked to do. There’s Mark Meadows’ texts. What does all of that context tell you about the president that day?

It says volumes about the president’s intent. It suggests that the president is reluctant to call this off, that he sees his people fighting as a potentially positive thing. His own daughter is encouraging him to more forcefully stop the violence, say something that will help increase the peace at the Capitol, and he does not do it until he’s kicking and screaming, dragging into doing it later in the day. Really important evidence of his intent. 

 

We don’t have, yet, direct statements of what the president said during the day other than a couple of snippets secondhand. But we know about his actions; that’s the most important indicator of somebody’s intents: what they do and what they don’t do. And the fact that he does not, for hours after being aware of the violence, tell people to go home, really, really powerful evidence of his intent. 

He tweets even about Mike Pence, that he didn’t have the courage to do what should have been done, and the indictment is pretty clear. It does not charge [Trump] with inciting a riot or anything like that, but it does say it’s part of an attempt to pressure the vice president and to interfere with the congressional proceeding. 

The president, over the course of the day, is on the phone with members of Congress talking about, when it resumes, potentially moving forward with objections. So there’s this pause where the riot disrupts the joint session, but when they go back, they’re still, Giuliani and the president, are still trying to encourage members of Congress to object even after the violence had occurred. Again, evidence of disruption, intent to disrupt.

You guys came to the same conclusion, that he was attempting to stop the proceedings or to pressure or put pressure on Pence and legislators. 

Absolutely, yes. 

So all that we’ve been talking about becomes the report, and your time is running out, as you say, there was a clock, and the clock runs out at the end of December. There’s a final committee hearing, and you’re going to send off the report, and the decision is made to issue this referral. What is the thoughts of the committee at that point? Why is a referral made? Where do you think that you’re leaving things? 

Yeah. So it has really no practical impact, candidly, a referral. The Department of Justice already was looking very closely at these allegations. It’s not like the referral started them down this path. It was important, though, for us to call a spade a spade. We had spent all this time amassing the evidence, and the committee felt like it was important to sort of make plain their unanimous view that that evidence gave rise to the violations of federal criminal law. 

I think the committee knew it would be important to issue those referrals, even if the Department of Justice was going to make its own decision, making that finding; not just laying out the evidence, but actually concluding that that evidence gives rise to the potential violations of law was important.

And then, significantly, we also knew that when we made the criminal referral, it was going to be accompanied by all of our work product. So literally, when the committee expired, we gave every transcript, every document we had gathered to the special counsel. So the committee didn’t just give them this recommendation; it actually gave them a lot of raw material that I think moved their investigation substantially forward, because they took advantage of the foundation that the committee had laid. So that was intentional as well: turn this over to people that can actually continue to investigate and potentially have power that the committee did not have to hold the president and others responsible. 

And I guess it puts prosecutors in the position of now having to explain if they don’t prosecute, why? It creates a certain political pressure.

No question. I think by the committee finding that, on the basis of our investigation, there’s the violation of these federal criminal statutes, it absolutely and intentionally put pressure on the Justice Department. Look, I think they’ve only gone beyond what the committee has done. I think they have some legal authority that the committee did not have. When they have a witness assert a privilege that they think is baseless, they go right upstairs to the chief judge who supervises the grand jury, and she rules. And then, if they want to appeal that, the Court of Appeals, within a week or two, on a motion to stay the judge’s ruling will either affirm or reject that ruling.

So they can very quickly adjudicate privilege assertions, and have used that authority to get people to answer questions that we didn’t have time to litigate. And they’ve gotten additional information. 

I don’t know, but my guess is it just corroborates the core narrative, based on what I read in the indictment. That hasn’t changed. But my guess is there’s more detail, more corroboration of that that we’ll see in the criminal trial. 

How do you feel about the fact that you did these hearings? Millions and millions of people watched them, and you feel like you’ve opened up evidence that wasn’t there before. But there’s a lot of Republicans, if you look at the polling, it hasn’t really changed that much. The president now is the very likely nominee of the Republican Party, the former president. How do you feel about that just on a personal level?

Yeah, look, I think it’s a reflection that the fundamental divide we have in this country is between people who believe in systems and people who don’t. There are a lot of people that don’t trust Congress. So no matter what we said, it’s not really about the facts. It’s about who’s the messenger. 

Same thing with the media, mainstream media. There are a lot of people that don’t trust what they see on FRONTLINE or what they read in The New York Times, people that don’t trust science or higher education. And that’s really the fundamental divide. Skepticism about the committee reflects that. Given that it was a congressional process, a lot of people just discount it. They don’t even get to evaluating the truth, the facts; it’s the process that was skewed.

And that is what we have to fix, in my view, in this country. How do we bring people back into belief in the process, belief in government, belief in criminal justice? I think criminal trials potentially might have the potential to change public opinion in a way that our process did not.

I hope that when these same facts are challenged by cross-examination, the president has an opportunity to defend himself, that if the outcome is a conviction, that that will resonate with people in a way that a congressional process or books or articles or documentaries will not. And maybe that restores some faith. If the fundamental division is people that believe in the system and people who don’t, maybe holding a former president accountable can restore some faith. Maybe that’s naïve, but that’s my hope.

That’s putting a lot of faith in these trials. And the other thing about it is your report shows a president who was trying to overrun the rule of law, find a way around it, find a way to short-circuit it, and here you have him facing criminal indictments and trials, and we know the statements he’s making about the judges and the fact that there’s an election pending. How fraught, dangerous, high-stakes is a moment with all of those things coming together?

Yeah. Again, I think what we’re dealing with in this country is division, and my hope is that accountability helps restore faith that systems work. For some people, it won’t. For some people, it will only exacerbate it. They’ll think that the system—the president is already saying that the system is rigged. 

But there’s no question that we are at a moment when democracy is at risk, and people need to participate; people need to engage; people need to educate themselves. We need more places in this country where people can constructively disagree.

And my hope is that over time, that going through a crisis like this, we come out the other side, people are more willing to do that. Again, maybe naïve, but I hope we have to learn from this. We collectively have to learn from this and try to put some things in place to prevent it from happening again.