Tom Joscelyn
Tom Joscelyn was a senior professional staff member for the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. He was one of the principal authors of the Committee’s Final Report. Joscelyn was previously a senior fellow at the Foundation for Defense of Democracies, and is currently a senior fellow at Reiss Center on Law and Security, a research institute at NYU School of Law.
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. 18, 2023. It has been edited for clarity and length.
Let’s start with the indictment against Donald Trump. It’s called the so-called federal Jan. 6 indictment. When you hear that, when you go and read the indictment, what’s your reaction? What do you think?
I think the indictment validates the work of the committee. I think the committee set forth the story and put forth the story for the American people and for the Justice Department to understand what President Trump and his associates did and exactly what they did and how it was illegal. So I take a lot of pride in reading the indictment. I think it follows the work of the hearings and then the committee’s report very closely.
When you say very closely, what is it specifically that you see in the indictment that makes you say, “This is something I’m familiar with”?
How many hours do you have? So, look, right on the first page of the indictment it says President Trump was lying, OK? So right from the start, it’s saying what President Trump was saying, he knew was false. That was a big theme of the committee right from the get-go. And it was a big theme, particularly of Vice Chair [Liz] Cheney, who was insistent upon showing how all this evidence was—it was irrefutable that Trump had to have known he was lying. And so the indictment starts off with that very simple fact of the matter, and then it builds the case from there.
And the way it builds the case from there is exactly how the committee built the case in its hearings and in its final report. And again, the main architect of that—of that sort of framework for understanding what President Trump and his associates did and why it was illegal, really came from Vice Chair Cheney in her opening statement in the first hearing. And you can see that the hearings followed that, and then the report followed that.
So let’s talk about the committee. First, how did you get involved in the committee? Why did you get involved?
I was brought on by Vice Chair Cheney and Speaker [Nancy] Pelosi’s team and others. I interviewed with them to talk about how I would go about putting together a report or drafting the report. And then I had—an associate of mine was also hired to work with me to do that, and ultimately we did draft most of the report.
… And your job on it? You’re saying writing the report. What is it that you bring to it, and what’s the goal of writing a report like that?
I’m basically a nerd who likes to synthesize evidence and put it all together into a story that can be digested by people who may be not familiar with the evidence, and that’s essentially what I helped do here. When you try and piece together all these different elements of a very complex plot against our democracy, how do you tie that all together and tell the story? And I certainly wasn’t alone in doing that, but I did play a big role in drafting the report.
You probably knew as you were drafting that one of the questions about the committee was why did it exist? Because we had seen so much. We’d seen the tweets. We’d seen what Trump had said in public. We saw the speech. We saw the attack. What was it that the committee was trying to add that we didn’t know already?
The devil’s in the details. It’s very easy to say President Trump tried to overturn the 2020 presidential election. That’s obvious. And we all saw with our own eyes what happened on Jan. 6 as a result of his political conspiracy against our democracy, but there are all sorts of elements of the story that needed to be fleshed out to understand exactly what transpired.
And so the committee, and particularly the investigative team, went out and interviewed all sorts of witnesses who provided new details that weren’t previously known—details from, for example, Vice President [Mike] Pence’s staff; details from within the Department of Justice, interviewing Bill Barr, who was the attorney general under Trump; all sorts of details from local officials right up. And then, connecting all that to the attack on the Capitol and setting forth a narrative, an understanding of how the attack actually unfolded. Because one of the things that you’ll hear people say is that this was just a spontaneous riot at the Capitol, and our findings conclusively show that that’s not the case; that there was a lot of pre-planning for violence; that some actors did specifically intend to attack the Capitol on Jan. 6, and the intent was to obstruct the joint session of Congress and certification of Joe Biden’s victory.
And so, putting that all together, putting the political conspiracy together with the political violence and demonstrating for the American people how this is all part of one conspiracy against our democracy was really the chief mission of the committee.
You mentioned the role of the vice chair, of Liz Cheney, and that she was one of the people who brought you in. Had you worked with her before or known her before?
I’ve known her for a while, but I didn’t formally work with her. She had certainly followed my work on counterextremism and counterterrorism issues for a number of years. I knew her beforehand for sure, but I hadn’t actually worked for her on the Hill or in any kind of formal capacity.
What was her role on the committee, and what is she saying that your job is, that the committee’s job is?
I think she said the job of the committee is to find as many facts, turn over as many stones as possible to figure out how this all transpired, to figure out how this went down. When I look back at—starting with the first hearing, if you go back and read the transcript of the first hearing or watch her opening statement, what you’ll see is that she very early on was the architect of the story the committee was going to tell, how the committee was going to put together all this, this mountain of evidence and explain what it meant to the American people. And I think she really was the chief architect of that. Certainly the hearings followed her opening statement, and then the report obviously followed her opening statement. And then the federal indictment of Trump followed her opening statement. So I think it’s pretty obvious who the main brain here was behind the operation.
People have told us that not only [did] she—have a big picture on it, but that she was sort of in the details. She was in the depositions. What was she doing in that period?
Yeah, this is not—I’ve worked for a lot of people through the years. There are certain people who kind of take a hands-off approach to the details and just want to do big picture. That was not Vice Chair Cheney at all. She was very much down in the weeds and wanted to know not only what we knew but how we knew it. And I had many conversations with her about the evidence and what it meant and how to sort of synthesize it.
Because the committee could have gone a different way, right? The committee could have focused on the security failures: why wasn’t there a barrier? They could have focused on specific intelligence failures or the architecture of the Capitol. And it decided to focus on this attempt to overturn the election. Are you saying that’s what her push was, that that was her input?
Sure. What I would say is, like, there’s a lot of—you have to go through this very carefully, though, OK. So there’s this false dichotomy the committee didn’t investigate these other issues, which is just false. The committee did investigate those other issues. You can see in the report there are appendices on security and what was known beforehand. And quite frankly, the Senate had investigated the intelligence failures and the security failures around the Capitol, so all that had already been well plumbed, I think.
In terms of intelligence failures, there’s no big mystery here, right? … Donald Trump’s cult of personality had a website that was devoted to him where they were openly talking about attacking the Capitol in the days leading up to Jan. 6. This isn’t some sort of super-secretive plot in terms of the actual violence that transpired that went undetected. It should have been well known. But the issue here is not just understanding the political violence and the attack on the Capitol; the real issue here is to understand the political conspiracy that led to it, and understanding how all the different spokes on that wheel came together to give us Jan. 6. And that is what Vice Chair Cheney really focused on from the beginning. So you have to see it as a continuum, as one part of one conspiracy against our democracy.
Was it surprising to you to discover the efforts that the Vice Chair lays out in her speech to discover what was going on behind the scenes? Were you surprised?
Look, one of the words she uses in the first hearing is “sophisticated”: This was a sophisticated plot. And I thought about that a lot, right? Was it a sophisticated plot? And in terms of the political conspiracy against the democracy, it absolutely was. That’s the right word, because you have to understand that, you know—I think a lot of Americans think you go and you vote in November of 2020. You vote by mail; you vote in person. You think the votes are tallied, and then a president, a winner is declared, and that’s it.
And the way our system works, there’s actually a number of steps between when people actually cast their votes and they’re counted and certified and a winner’s declared. And what you see here, in this plot, is that basically, President Trump and his associates identified those steps and attacked each and every one of them. They tried to stop Joe Biden from being certified as the winner of the election.
So all these steps that occur, from the state level all the way up to Congress on Jan. 6, Trump and his associates identified each one of them and pushed as hard as they could to attack those steps.
… What about Bennie Thompson? What was his role as the chair? What did he bring to it?
I think he provided a lot of moral and intellectual clarity as well. If you look at his opening statement for the first hearing and you look at how he connected this all back to American history and what this means in the broader context of our democracy, I think that he offered a lot of powerful words to that effect. And he certainly was involved in all these issues as well. He had his own sort of different perspective on it from basically coming from his background and understanding that America’s democracy is imperfect and that there have been issues throughout history where we’ve been challenged, and I think he connected Jan. 6 back to our history very well.
… People have told us that these hearings were different from other congressional hearings because, well, partly because it’s not back-and-forth between the two sides. There’s video elements of it. How important was it to the committee to tell the story in a different way as it went into those hearings?
Well, I think very important. Look, I’ve testified before Congress and the Senate about two dozen times, so I have a lot of experience testifying. And it was obviously a very different experience how the committee put on its hearings from what I’ve seen in the past. But there are two elements to it: One is the analysis and the framework and the logical framework for understanding what transpired and putting that together for people. And the other is more of the production, sort of the video, telling the story visually for people.
And I think putting those two together was enormously complicated in trying to get that to work for the American people, especially in a high-pressure environment where, quite frankly, tens of millions of Americans don’t want to hear what the committee had to say; tens of millions of other Americans do want to hear with the committee has to say. So we live in a very polarized time. How do you try and break through and get people to say, “Hey, look, this committee is really only interested in the evidence and what the facts say,” and make sure people understand that?
Did you see a power in—as somebody who writes, who uses words, who’s written reports, but to see the power of something like that first video, which is Bill Barr coming up and calling BS on the president, was there something different about being able to show that?
Oh, absolutely. I’ve written all sorts of articles and reports, monographs, books. I don’t know how much people read these days; I really don’t. You can write quite a bit. But having a firsthand account on video from a witness who was loyal to President Trump in Attorney General Bill Barr, and who simply draws the line at attempting to overthrow the election and overturning the election, that’s very powerful, right? Bill Barr is not some guy who was a Never Trumper or so-called RINO, who opposed Trump from the beginning. This is a guy who was loyal to Trump right until the end and simply drew a line at President Trump’s efforts to overturn the election.
It’s just amazing to see him in video because he’s so blunt. It has a real power, doesn’t it, to see these people.
It has a lot of power because this is a guy—this is a guy who, he tells the committee he met with President Trump three times between Election Day and when he ultimately leaves his post as attorney general, and those meetings are focused on Trump’s fraudulent claims about the election, the false claims, the lies that Trump is telling. And Bill Barr is among the senior Department of Justice officials who’s very clear with him and says, “No, what you’re saying is not true. There’s no evidence that this election was stolen from you, and you’ve got to stop saying this.” And yet Trump keeps pressing forward anyway.
… What I think you’re saying is, we saw these attempts, and some of them seemed laughable, and they seemed disorganized, and they seemed almost comical, but was the committee’s contribution that it wasn’t disorganized; it wasn’t a comical farce that we were watching?
It wasn’t disorganized at all. That’s the point, right? Again, when it comes to voting in America and picking a president, a lot of people think you just go, you vote, the votes are counted up, and we figure out who the winner is, and that’s it. What Trump and his team knew and figured out was that actually there’s all these steps in our process in how the votes are counted, certified and ascertained, and then sent to Congress so that the winner can be declared on Jan. 6.
And they attacked, systematically, all those steps. They attacked all those steps across seven states, six to seven states, let’s say, right? That’s not an accident. That’s not haphazard. That’s not disorganized. You have to have a team of people who’s willing to lie as firmly as you’re willing to lie, as Trump was willing to lie, and then use those lies as political weapons against our democracy in all these different states leading up to Jan. 6.
… We’ve been talking to lawyers about the case, the prosecution against Trump, and one of the things that they say—
Good luck with that.
—the hardest thing to prove is mental state, is “What does the president know? What’s his intent?” How important was that to the committee, and how much of that was what the committee was adding to the story?
I think it was very important to the committee. It was very important to Vice Chair Cheney. You’ve seen different parts of the committee’s work where you can see that there are officials telling Trump something is false on one day and then Trump is repeating it as if it’s true the following day. That was very much a central focus of the senior committee staff, including especially Vice Chair Cheney, to show that, because it shows the intent.
When you look at the federal indictment, right on the first page of the federal indictment, it says, Trump was lying. The federal indictment starts there. It says Trump was lying, right, and that he knew what he was saying wasn’t true. That’s a very important starting point because you have to look at—lawyers get tied up in intent and state of mind, right, and they’ll drive you crazy with this if you talk to them long enough about it.
But here, there are few facts that the committee put together — and some of them were well known, some of them weren’t — to understand that we know that Trump knew he was lying, and here’s how. First of all, it actually starts before Election Day. President Trump is trying to delegitimize the election before the first vote is even cast. Why is he doing that, right? Why would he take the time to delegitimize an election where he could plausibly be reelected as president of the United States, and yet he wants people to think there’s something fraudulent going on here before even the first vote is cast? So he does that well in advance. And the committee’s work and the committee’s report shows that this is a campaign that starts before Election Day. That shows intent, right? It shows you before he has anything to complain about, he’s out there trying to delegitimize the vote. And he does this systematically against even the wishes and the advice of people around him, who say, “Hey, don’t be delegitimizing mail-in voting. We need Republicans to get out and vote by mail during a pandemic.” He still keeps doing it anyway. Why? Because more Democrats preferred mail-in voting than Republicans. This is something that was well known.
So there were elements of this that were well known in advance, and he’s attacking systematically before Election Day even occurs.
So then go past Election Day. He starts making things up, right, and people around him start making things up, and he starts saying things that are demonstrably false. Well, when it comes to intent, I think it’s pretty easy to show, hey, if you’re claiming something and the evidence overwhelmingly shows that that is wrong, at some point you have to change your opinion and say, “Hey, I was wrong,” or stop saying it. But he doesn’t. So he’s repeatedly shown over and over again that—the evidence shows that what he’s saying is wrong and it’s false, and he keeps telling these lies anyway, right? So this all speaks to intent.
I’ll give you a couple just real quick examples from that regard, how you know he’s lying. So one of the things that we saw was this conspiracy theory about Dominion’s voting machines. Everybody’s familiar with this now, this idea that these voting machines flipped the votes from Trump to Biden and gave Biden the victory. No evidence was ever offered to support this conspiracy theory. None. But what happens is, in a couple of different locations—take Antrim County, Michigan, a small rural county that went for Trump. This is one of the places where this conspiracy theory takes hold.
But what happens in Antrim County? Well, first of all, it’s actually from firsthand official testimony that there wasn’t anything nefarious going on with the machines, that an election official in Antrim County simply misused a spreadsheet and put the numbers in the wrong columns. So it was a clerical error, not a machine error. And we know that Antrim County, they went back and they actually recounted the votes, and they found out that the machines didn’t flip the votes.
Same thing happens in Georgia. There’s a recount. There’s two recounts. Shows the machines didn’t flip any votes.
So now you have a scenario here where the claim is, these machines are flipping votes, OK? Recounts happen where they’re counted by hand, which means it doesn’t matter what the machines did or didn’t do, right? We have the ballots, they’re counted by hand, and it shows that none of the votes were switched or flipped.
What happens? Trump keeps lying about it anyway, right up through Jan. 6, right up through his speech at the Ellipse.
So here, no reasonable person would keep repeating this lie. The evidence is plain as day that it is a lie, yet he keeps telling it anyway. And so this is how you know, from my perspective, and there are many other examples like that. From my perspective, the intent is clear.
So let’s talk about some of the specifics. The moment that is in the indictment, that’s in the report, election night, he’s hearing from Jason Miller, from Bill Stepien. He’s also got Rudy Giuliani, who, according to the committee and some of the witnesses, is allegedly intoxicated. How important is that moment—is election night to the story?
I think it’s a very important moment. It’s the scene-setter for chapter one of the report. And the reason is because here the president of the United States is given a clear opportunity to do what’s right. He’s given a decision point in his career to say, “Hey.” He could have easily said, “Let’s let all the votes be counted; I’m not certain about the outcome; let’s find out who won this,” right? He could say that. That’s what his vice president effectively says after him, right? But instead, he uses this moment to lie. He’s given all this advice from the sane, sober people who say, “Hey, you know what? Don’t make any declarations about what’s going on. It’s too early to tell. Let’s just wait this out.”
Instead, he decides to very aggressively attack the election, attack the election results, and starts claiming that this is a big fraud going on here before he has any evidence whatsoever to back that up. And again, to me, that speaks to intent, right? He’s willing to lie before he even has anything to base his lies on.
And so this is a very important moment in presidential history because you look back through our history, our recent history, I can’t think of a time in a closely contested election where — if you think about Bush v. Gore, you think about the election between Hillary Clinton and Trump, any of these closely contested elections — where another candidate went out who was afraid of losing and said, “This is all big fraud, and it’s all a big lie,” and try and delegitimize the election results. Yet Trump, that’s exactly what he decided to do.
… The indictment picks a moment when the conspiracy starts. I think it says that it’s Nov. 14 or something like that.
Yeah, I would say it’s earlier than that, but yes, yeah.
There’s this period between election night and between whenever we believe that the conspiracy starts where there’s these two groups; they come to be called “Team Normal,” and there’s the Giuliani team. Can you help me to understand what is going on in that period? Before we even have all the details of what the allegations are, you’ve got these two groups. What is going on, and what does that tell us about the president?
To me, it’s really simple. President Trump’s campaign officials and top staffers weren’t telling him what he wanted to hear. They weren’t willing to lie for him. They were adhering to the evidence and the facts and saying, “Look, there isn’t any kind of systemic fraud here, any kind of outcome-determinative fraud that’s going to turn the election. There are different pieces of litigation that we can see through, or there are different efforts we can take to challenge the election.” But they were trying to stay within the system, within the bounds of our democracy to do that. They wouldn’t break the bounds of our democracy for Trump, which is what he wanted them to do.
So when they don’t tell him what he wants to hear, what does he do? He shoves them aside, and he brings in Giuliani and his team because they will tell him what he wants to hear, and they are going to push these conspiracy theories, and they’re going to delegitimize the election just the way he wanted to.
What are the credentials of a Bill Stepien or a Jason Miller or these other people who are telling him that they’re not finding anything?
Well, these are loyalists to Trump. These aren’t guys who are Trump critics. They aren’t people who are opposed to Trump. They tried to get him elected. They tried to get him reelected. We have every reason to think they did everything they could to do that. And yet you take somebody like Jason Miller, who’s still vocally pro-Trump to this day and still backs him to this day, and yet when you look at his testimony, you can see that even Jason Miller understood that on election night, the president shouldn’t be lying.
… I don’t know what date you would start the conspiracy at, but one key date is Nov. 7, which is when the networks called the election and Rudy Giuliani is at Four Seasons Total Landscaping alleging widespread fraud. How important a date is that moment once you’re that far out from the election?
Well, I think that’s an important moment. I think there are several dates after Election Day where it’s important. And again, it’s also important to note that for those of us who want to operate within the bounds of American democracy, what these dates show is that President Trump and associates did not want to operate in the bounds in our democracy, and in fact didn’t.
And so it’s not just Nov. 7 when the election’s called, but remember, these states have to go through and count and recount the votes in this hotly contested election and certify the winner. And Trump and his associates attack that process. They try and get these states to—at first, they don’t want them to certify Biden as the victor. And then once Biden is certified as the victor, they want these states to open up the books and basically decertify Biden.
So there are a number of dates for this process between Nov. 7, when the election is called, and Dec. 14, when the electors are going to convene and cast their votes that Trump and his associates attack and try and interfere with, basically.
Rudy Giuliani is a central figure in this. Do you know him personally?
I was the senior counterterrorism adviser for Giuliani’s 2008 presidential campaign, and what I like to say was that I was working for him when he was supposedly America’s Mayor Rudy Giuliani, not Four Seasons Total Landscaping Rudy Giuliani. And I didn’t know him very well at all. I’d actually only spoke to him a handful of times, even in that role on his campaign. But it is absolutely disturbing to watch how he’s disgraced himself on the national stage time and time again.
I can’t think of a public figure, other than Trump, who’s willing to humiliate himself in such a fashion over and over again by saying things that are demonstrably false, that are just nutty, quite frankly, and don’t serve any kind of higher purpose other than some sort of personal agenda that he has.
And so he absolutely is a central figure in this. You go back to the Trump campaign. There are these lawyers who were Team Normal; they want to play within the bounds of America’s democracy. Giuliani and his team are what comes to be known as the “clown car.” These are the guys and people, men and women, who do not want to play within the bounds of America’s democracy. And it’s quite shocking to watch somebody who was a figure of national prominence, somebody who was well regarded, highly respected as mayor of New York City, decide to take this path in life. It’s unbelievable.
Were you able to come to any conclusion about why, about what led him either before that or what choices he was making in that moment?
I can’t speculate on that. All I can say is, to my mind, there’s no excuse for his behavior, so it doesn’t really matter what the reasons people would pinpoint are. No reasonable person, no self-respecting person, nobody who actually loved America and America’s democracy, would behave this way.
As we talk to people who were in Georgia and other places, he was so respected. He brought his experience as a former U.S. attorney, as America’s mayor. How important was what he was bringing to this alleged conspiracy?
He’s one of the most prominent figures in American politics in the last 25 years. He’s somebody who has very high name recognition, who is remembered fondly for his leadership post-9/11, and he takes that gravitas, that weight from his political career and his career as a leader in New York, and he used it for corrupt political purposes, for unlawful political purposes, and he did it repeatedly on behalf of Donald Trump.
You can see in the federal indictment, for example, that he is almost certainly one of the unindicted co-conspirators so far. That doesn’t mean he won’t be indicted. I suspect he very well could be.
But you mentioned Georgia. One of the more powerful witnesses, I thought from an emotional perspective, for the committee were Ruby Freeman and Shaye Moss, her daughter, who were these election workers, these innocent election workers, who were just doing their jobs, trying to help America count votes on election night. And Rudy Giuliani and Trump really unleashed this racist conspiracy theory against them, making claims that were absolutely, completely disgusting about the two of them. Totally unfounded, easily disproven. And yet they kept saying them anyway.
And Ruby Freeman testified before the committee. She said that a president is supposed to represent all of us. This is what she said, right? And that stuck out to me, right, because that essentially gets to the heart of all this, is that Trump doesn’t represent all of us. He never actually even attempted to represent all of us. He only represents himself, and he’s willing to destroy the smaller people in our country, any one of us, including election workers, for his own corrupt political purposes.
You can’t think of anything that is more opposite of what a good leader or a good president should be about than that. And he really—he and Giuliani really did defame these women for no other reason other than they needed a scapegoat; they needed a conspiracy to explain away Trump’s loss in Georgia.
… What does Bill Barr bring with him when he walks into that meeting at the White House and he’s going to call BS on the Dominion claim and on other things?
Bill Barr is no shrinking violet. This is a guy who has a big personality and a big presence in the room and has a lot of authority behind him, because he’s not somebody who was a Trump critic, a Never Trumper who just comes to serve in the administration. This is somebody who was actually quite loyal to President Trump, fended off other investigations into Trump’s corrupt behavior on behalf of Trump, and yet simply draws a line at trying to steal the 2020 presidential election.
And here’s another decision point for President Trump. What happens? Bill Barr says, “No, I’m not going to help you steal the election; I have to resign and get out of here.” And he does. What happens? Trump turns on him. Trump turns on Bill Barr and starts attacking him rhetorically as well.
So this is autocratic behavior. I like to say Trump puts the “auto” in “autocrat.” In the end, it’s purely about him. Anybody who doesn’t serve his corrupt purposes, anybody who won’t debase themselves for him and won’t help him shred the U.S. Constitution and steal the election is somebody he’s going to turn against, and he’ll do it again. He will turn against anybody who doesn’t serve his corrupt interests.
Were you surprised when you first read or watched that deposition at how blunt he was? He literally calls it BS. He also talks about his own motivations, and he seems to be volunteering things that he’s not even asked about his impressions of the president. Are you surprised at what he says in that interview?
I’m not really surprised, because if you are somebody who wants to have any kind of semblance of rationality, you want to adhere to any kind of semblance of rationality, be reasonable and logical at all, you’ve got to think this is nuts, right, that this is crazy stuff, and that Trump is pushing stuff that has absolutely no evidence behind it. And as a lawyer, as somebody who was attorney general, you’re trained to think in terms of what the actual evidence is to build a case, and here’s a case with no evidence. Here’s a case that what Trump is saying and pushing and advocating has absolutely no bearing on reality.
But here’s the other point here. Trump wanted Bill Barr to lie on his behalf. He wanted Bill Barr and the Department of Justice to help him overturn the results of the election and so Bill Barr decides, admirably, that he’s not going to do that. And then the people who come to serve in his stead after he steps aside, [Jeff] Rosen and [Richard] Donoghue, who become the top officials in the Department of Justice, they won’t do it either. And they have numerous encounters with Trump between Dec. 14 and Jan. 6 where they’re confronting him with the evidence and saying that what Trump is pushing are lies as well.
So really, you have the top senior staff, all loyal to President Trump, all Trumpies, who are saying, “No, we won’t help you steal the election.”
… There’s people who say it sounds like — Alyssa Farah Griffin, others — say it sounds like the president thought that he’d lost, that he knew that there was a period of time, either after the election, there’s a second period of time, I think, after the Supreme Court and Electoral College. What did the committee find, and why does that matter?
… To the extent that he knew he lost, I think, again, demonstrates that he’s lying and that his intent is to lie, to deceive the American people to try and stay in power against the will of the American people. And so I think that any reasonable person would have known that they lost. There was all sorts of advice he was given by campaign officials, for example, especially early on, that, after Election Day he only had like a 5-10% chance of winning if the litigation went well, went right for them in three states, let’s say; I think it was Arizona and two other states.
And what ends up happening is, he loses in Arizona. He doesn’t win the litigation in Arizona; it’s shot down. And his own campaign officials have told him, “Well, if you don’t win this, you don’t win the election.” And he didn’t win that litigation. He lost. So that means he lost the election. So he has to know, as just a bare reality, a minimum reality here, that he lost.
I think there are a lot of examples like that. It gets a little complicated, a little in the weeds to understand all the different details. But there are so many things that he was told by people who were loyal to him that should have sunk in, that told him he lost.
… So talk about the “Big Lie.” As you say, the next area is the pressure on local officials. It’s a little hard sometimes to understand what it is they’re trying to do because it seems to change over time. What’s the simplest way to understand this aspect of what was going on?
The simplest explanation is, the votes are cast and counted in these states. … The election results are certified by the secretary of state. Joe Biden is certified as the winner by the governor. And Trump and his associates try and stop that. They try and stop Joe Biden from being certified as the winner. And then after he’s certified as the winner, they try and get these state and state legislature officials to open up the books and decertify Biden.
So this is a way that they’re trying to interfere with the election process. So at this point, all the votes have been cast and counted. There’s absolutely no ambiguity over who won here at this point. And you’re not talking about victories of a few hundred votes. It was in the thousands of votes. Even the closest tally, for example, in a state like Georgia, you’re talking over an 11,000-vote difference. And they don’t have any way of really casting doubt on that, other than through conspiracy theories.
But what they want these state officials to do is they want these state officials to corruptly use the power of these Republican-controlled state legislatures to open up the books and decertify Biden as the victor. So keep in mind here, right, so these state legislatures, they set the terms for how the election is conducted in these states. They say it’s the popular vote [that] is going to determine who the winner is. The popular vote is cast and counted. Biden is the winner.
Now, Trump and associates go back to state officials and state legislators and say, “Well, you have the power to determine who the electors are, so why don’t you reopen the books and decertify Biden’s electors and choose ours? Choose the Trump-Pence electors.”
This is the type of thing where you have to understand the election process to understand that there was some sophistication to these efforts, that it wasn’t disorganized, that they were, in fact, trying to interfere in a way that was unlawful and that had some intelligence behind it.
One of the moments, this is only for a footage thing for TV, but you know you mentioned in the report that [Arizona] Gov. [Doug] Ducey is certifying the vote, and his cell phone rings, and the “Hail to the Chief” plays, and it’s the president of the United States calling him. Why would the president of the United States be calling? Why do you include that detail in the report?
So Ducey is certifying the election results, and this is showing how President Trump himself is directly reaching out, again using the power of the bully pulpit, the president’s bully pulpit to reach out to these governors and state officials to try and get them to decertify the election results, or to prevent Biden from being certified. He has no legal basis for doing this. He has no factual basis for doing this. It’s purely just a corrupt attempt to stay in power against the wishes of the American people.
And to Ducey’s credit, to the credit of these local officials across these six states, what you find is that they stood up to this. They said, “Even though we’re Republicans, even though we supported President Trump, even though we voted for him and tried to get him reelected, we’re not going to do this. We’re not going to violate our oaths to the Constitution. We’re not going to … overturn the results of [the] election for Trump.”
So one of those stories which we might do specifically is the story of [then-Arizona House Speaker] Rusty Bowers. He’s in his car. He gets a phone call from Rudy Giuliani.
Yeah, he’s fantastic.
Let me ask you first before I ask you about the details of it. Why is he fantastic? And why is he such a good witness to this?
I think Rusty Bowers speaks with a moral and legal clarity that’s very necessary to understand just how unlawful what Trump and his associates were up to was. He also put out a statement, I think on Dec. 4, where he explains what they’re pressuring him to do in Arizona. And this is a guy who, again, this is a loyal, lifelong Republican. He’s a conservative who fought to get Trump reelected, who was disappointed in the election results, wanted Trump to be reelected, and simply stood by his oath to the Constitution, said, “I’m not going to disavow the Constitution for Trump.”
And he puts the moral choice in stark terms for the American people to understand. What you have to understand here is that Rusty Bowers, this guy who worked for Trump, wanted Trump to be reelected in Arizona, worked for Trump’s reelection, is given a choice: He can choose between his oath to the Constitution or President Trump, and he stays loyal to the Constitution. That is, in effect, the choice that he’s given.
You talk about decision points that Trump has, where he chooses the wrong thing time and time again. Well, here’s an example of a local official, a state official who’s going to choose to do the right thing, and he’s given a very stark moment to do that.
So in that phone call, what are they asking him to do? I guess they want a hearing and maybe they want to convene the legislature. What are they asking him, and how are they pushing him?
So there are several contacts with Rusty Bowers; it isn’t just one phone call. There are several attempts between Trump and Giuliani to get Bowers to effectively open up the books in Arizona and decertify Biden’s victory. So what they want Bowers to do is, because he’s the speaker of the state legislature, he can, in the state of Arizona, he can effectively, if they have two-thirds of the majority of the state legislature, says that they can hold and convene a session. They want him to listen to all this nonsensical evidence, conspiracy theories, and then use that to say, “OK, well, the legislature is now going to decertify Biden’s legitimate electors, and we’re going to choose Trump’s false electors.” That’s what they want him to do.
And he says, he stops him right at the first, right? He doesn’t let him get past “go.” He says, “You’ve got to give me evidence to back up your conspiracy theories.” And this is where one of these lines occurs in the committee’s findings that’s very important. The committee’s investigation found out that what Bowers is told by Giuliani: “Well, we have a lot of theories, but we don’t have any evidence.” And that’s a type of line that shows that none of this had to do with evidence or reality, right? This is all about just making stuff up in order to justify keeping Trump in power. And Rusty Bowers stops them right at the first and says, “I’m not going to go down that road.”
And he’s also a witness who talks about the impact that it has on his life, one of many people who’s affected by this.
Yeah, well, Trump and his associates, they attack anybody who won’t overturn the election for him, whether it be local election workers like Ruby Freeman and Shaye Moss in Georgia or it be state officials like Brad Raffensperger in Georgia and Brian Kemp, the governor there, or be it Arizona with Rusty Bowers and the governor there and others.
This is the point. This is fundamentally what an autocracy looks like, is that anybody who won’t serve the autocrat has to be attacked and demonized and effectively intimidated into submission. And what’s admirable about Rusty Bowers and others is they wouldn’t be intimidated into submission. They stood up for what was right.
… One of the questions is how either legally or morally responsible is the president? How knowledgeable is he about the potential for violence, about what would happen to Rusty Bowers, militia showing up outside his house and these kinds of threats? There have been some demonstrations in D.C. Do you know if he knew or should have known by that point, by late November, early December, that his words could lead to threats and violence?
It’s tough to prove that exactly, which is why I don’t think he’s been charged with inciting the actual attack in the federal indictment. But I would say, as somebody who has studied extremism and terrorism for a very long time, a couple of things: … On Dec. 19, Trump tweets out “Be there. Will be wild!” for this Jan. 6 protest. He wants everybody to get all riled up, to come to Washington and protest on his behalf. But he also tweets out something that same day very close to that that I think is very telling, and it’s this video called Fight for Trump. And it’s a very bellicose, menacing type of video where there are all these scenes of Trump supporters and loyalists chanting “Fight for Trump,” that they’re going to stand and fight for him. This is something he tweets out relatively close to when he tweets out the announcement that there’s going to be this Jan. 6 protest.
And we know from the evidence, and you can see this in the report and in the committee’s hearings, that on websites that President Trump’s social media team is monitoring, like TheDonald.win, which is this central hub for his personality cult, there are open calls for violence and pre-planning for violence on that site within minutes of him to tweeting out, “Be there, be wild!” It’s not something that it takes a lot of investigative work to go find. It’s right out in the open.
Now, did he know that that’s what these people were talking about on Dec. 19 when he tweeted it out? I find it hard to believe he had no inclination that this could turn violent or that he was riling people up. I think that’s essentially what he does, right? He riles people up. And so I think he wanted them angry. I think he wanted them coming to Washington to intimidate his own vice president and intimidate Congress into obstructing the certification of Joe Biden’s victory.
And of course, one of the pieces of evidence the committee plays repeatedly and a person who they have testify is [Georgia election official] Gabriel Sterling. And he on Dec. 1 says, “Mr. President, there will be violence.” And what I hadn’t realized was in the report was that the president had retweeted somebody else playing that video. Why does the committee come back to that a couple times?
Because you have a Republican official telling you, in no uncertain terms, that you can’t keep saying these things; you can’t keep doing this; it’s going to get violent. And yet he keeps doing them anyway. So again, it’s another decision point that Trump faces. He’s given a clear call to stand down, that this is going to go bad if you don’t stop, and he decides to keep going anyway.
It’s another telling moment. And you can see by the retweets that he has that he’s certainly knowledgeable of it. He can see it with his own eyes. It’s not something that he—of course he knows about it. So again, it does show intent. It shows that he’s not willing to back down. He’s not willing to stop with the bellicose rhetoric.
… How important was the Brad Raffensperger phone call in this local pressure? There’s a recording where you can hear the president. How important was that, what the president says on that phone call?
I think it’s very important because it’s the type of evidence that shows you that Trump is intimately involved in this effort to steal the election in Georgia and that it’s being done at his direction. He’s overseeing it; he’s pushing it. It’s not one of his kooky advisers who’s pushing this stuff. He himself is. And he weaves this tapestry of lies in that phone call with Raffensperger, and he’s shot down time and time again.
And what Trump does is he just moves onto the next lie. And that’s his MO. That’s his modus operandi for when he’s dealing with Department of Justice officials, when he’s dealing with state officials, when he’s dealing with anybody. He just spits out a lie; it’s basically rejected; he just moves onto the next lie. And it’s all about trying to justify ways to keep him in power.
As you say, the pressure on the legislature — just to go back to the beginning of summer — fails, right? Rusty Bowers issues that statement, you said, on Dec. 4. Gov. Kemp refuses to convene a legislature by Dec. 6. Is that a turning point as those efforts to use the legislature fail?
Yeah, there are two things that are happening here. One, their efforts in the court fail. They don’t get any court to overturn the election results. And a lot of the cases actually did hear on the merits; they weren’t just procedural dismissals. And then two, the state legislatures won’t do what Trump wants them to do. They won’t overturn the election results.
So these are two paths to legitimately challenging, or somewhat legitimately challenging, election results. Certainly in the courts, you have the right to challenge them there. And then the state legislatures, it gets a little more complicated. But both those paths fail. And what the Trump team does is, they move forward to false electors anyway. So this is at a point where, and I think the evidence shows—and this is very important—the evidence shows that Kenneth Chesebro, who was one of the main lawyers who was an architect of this plan to obstruct the joint session of Congress, he knows before those electors are convened on Dec. 14 that this isn’t contingent on a court overturning the election results. It’s not contingent on even a state legislature overturning election results. They want to convene these Trump-Pence electors, have them cast their votes and submit them to the relevant officials anyway as a scheme to delay or obstruct the joint session of Congress.
And so these other paths fail. What they do is they move forward with another path in order to try and get to the same goal.
… What does that mean, the fake electors? … What’s the simplest explanation? That’s the challenge of this story.
Right. This is why this is so complicated, right, because this whole scheme with the false electors, the fake electors, is woven throughout other parts of the plot, right? So, for example, the pressure campaign on Vice President Pence, the premise of it is that there are these two slates of electors on Jan. 6, and he can choose which one potentially is the legitimate slates of electors, or he can refuse to count Biden’s legitimate electors and send the matter back to state legislators with the hope that somehow the state legislatures would then overturn the election results and choose the Trump-Pence electors. So it gets a little complicated here. But the point is that the fake electors are integral to this whole scheme, this whole plot.
And it comes down to this: So in each one of these states, the state legislatures have determined that the popular vote is going to determine which electors are legitimate and get a certificate of ascertainment; it means that they’re the legally valid ones for Jan. 6. So it’s all based on the popular vote.
And in each one of these six states, the six core states here, the popular vote goes for Biden, and the state officials determined then that the proper electors are the Biden-Harris electors, so they’re the ones who should meet and convene on Dec. 14, cast their votes, and then their electoral votes will be submitted to Congress for counting on Jan. 6.
What the Trump team does is they say we’re going to convene our electors, the Trump-Pence electors, even though we didn’t win the popular vote. We’re going to have them cast their votes. We’re going to submit them to the relevant authorities as if they’re legitimate, and then we’re going to manufacture this controversy on Jan. 6 to obstruct the joint session of Congress to prevent Biden from being declared the winner.
So it’s a parallel effort. It’s a fact-free, sort of unlawful effort to basically obstruct the joint session of Congress. They want to use these fake electors to say, well, we don’t actually know who won in these six states, and therefore the vice president can intervene and either determine who won or send the matter back to state legislatures for further investigation.
Either one of those paths would in fact obstruct the joint session of Congress.
… The first place a lot of Americans hear about it is Donald Trump tweeting, this tweet that you mentioned: “Come on Jan. 6.Will be wild!” The committee finds out a lot about what happened right before that tweet is sent in [an] “unhinged” meeting at the White House. That’s the one you mentioned with Sidney Powell. What do we know about that, about the intent of sending that tweet, about the context of that tweet and how important it is?
Well, remember, he sends the tweet on Dec. 19. Biden has been declared the victor, has been certified as the victor across all these states. There is absolutely no lawful or reasonable basis at that point to question Biden’s victory. It’s over. The election is over. And yet he’s trying desperately to get people all riled up for Jan. 6 as a way to stay in power, to try and stop Congress from counting Biden’s certified electoral votes. That’s what the tweet’s all about. He wants people to be angry and come to Washington and stop Biden from being declared the victor.
This is a break from our democratic norms, right? Presidents are supposed to, or presidential candidates are supposed to recognize when they’ve lost, concede and move on. And yet this shows that far after any rational person would have conceded, Trump is trying to fight on and trying to stay in power against the will of the American people.
He’s not explicit about it on Jan. 6 to overturn the election, but the committee at least sees how his supporters, how Alex Jones, Roger Stone, some of the militia-type groups respond to it. What do they hear in that tweet?
The tweet is a call to arms for right-wing extremists and conspiracy theorists in particular to come to Washington and to fight for Trump. That’s why that other video where he’s telling—the Fight for Trump video is so important, right? He’s making it more explicit. In fact, during his Jan. 6 speech, a “Fight for Trump” chant breaks out, and he says thank you; he thanks the crowd for that.
And we’re talking about intent and his motives here, right? Let’s look at this a little differently for a second. Look at his Jan. 6 speech and how many times he uses the word “fight” in that Jan. 6 speech. One of the things the committee learned was that that line about marching peacefully and patriotically down to the Capitol, that was something one of his speechwriters wrote, not him. What’s the true essence of Trump are all the iterations of the use of the word “fight” in the speech.
A lot of Trump’s apologists will say, well, he told people to march peacefully and patriotically. But he also told them to fight over and over and over again. And he told them if they don’t fight, you’re not going to have a country anymore. Think about how incendiary that comment is from the president of the United States. What could be more existential to his supporters than “If I don’t fight here and now, America’s gone”? That’s what he’s telling him, right?
So what’s his intent? I think it’s clear what his intent is.
And the other thing he does in that speech and his tweets and everything else is he focuses people’s anger on his own vice president and on anybody who won’t help him overturn the election results. And so he starts to focus everybody—he wants that anger focused on this guy who had been loyal to him for several years, somebody who was even subservient, servile to him in many ways, a sycophant in many ways. But Pence won’t do this last thing. He won’t overturn the election for Trump. And so he takes the mob’s anger, and he focuses it on his own vice president. Again, I think that’s very intentional. It’s not an accident.
As he goes into that speech, he knows that Pence is not going to do what he wants.
Yeah. Pence has told him privately and publicly now that he’s not going to overturn the election results; he’s not going to break his oath to the Constitution. And Trump is still telling his people during that speech on the Ellipse, “Well, if Pence does the right thing, the outcome could be different.” That’s a lie, right? But it’s a lie for twofold: One, he’s already been told by Pence that Pence isn’t going to do it; and two, he already knows from Pence’s own mouth and from Pence’s own team that Pence doesn’t have the authority to do it. So it’s clearly a lie that’s intended, again, to try—a desperate attempt to keep himself in power.
So let’s talk a little bit more about the Pence pressure, but first the penultimate pressure on the Department of Justice. This is after Barr has left, with Jeffrey Rosen as acting attorney general and Richard Donoghue as the deputy acting attorney general. What’s important about that aspect of it, and maybe where are we in the chronology and in the things that have happened that lead to this moment and this pressure on the Department of Justice?
Well, I’d like to make one observation, step back here for a second. The American—the Trump right, the MAGA right, right now, is obsessed with this idea that government is being weaponized against the American people and that the government is sort of compromised in some sort of corrupt way. Yet here, that’s exactly what President Trump tried to do. He tried to weaponize the Department of Justice against our own democracy, against the way elections are conducted, and Bill Barr is the first one to stand up and say, “No, I’m not going to do that.” He steps aside; he resigns, and he’s replaced by Jeff Rosen and Rich Donoghue as a sort of a tag team here. These are guys who are loyal to President Trump, wanted him reelected, and yet they simply won’t lie on his behalf.
So what happens is, Barr won’t—this, again, this all connects to intent, right? Barr won’t lie for him, so then Rosen and Donoghue won’t lie for him. So what does he do? He then turns to this mid-level Department of Justice employee, Jeff Clark, who he gets an introduction to via a congressman, and he says, “… Let’s put him in as the acting attorney general.”
So again, it shows the intent and the nefariousness of what he’s up to, right, is that he has a sequence of people who are loyal to him but just won’t do this one thing for him. They won’t overturn the election, so he finds the guy that will, and then he entertains the idea of putting him in charge.
And there’s this piece of evidence. I think it’s Donoghue’s note, of a conversation with the president—
Yeah, Dec. 27, yeah.
—”Just say that the election was corrupt, and leave the rest to me and the Republic congressmen.” It’s something people come back to a lot. Why is that such a powerful piece of evidence?
Again, what is he saying? There’s no evidence to say the election was corrupt. He doesn’t have any reason to actually say that. He just wants him to say it. Just say it so that way he can use the Department of Justice saying it as a tool to steal the election. That’s what he wants to do. He wants to use the Department of Justice’s power to intervene again at the states.
Remember, part of what he wants the Department of Justice to do, via Jeff Clark, is send these letters to these six states saying that the Department of Justice is investigating serious issues of fraud, and basically the results are in question, and why doesn’t the state legislature open up the books and meet and figure out what happened here and figure out who really won? That’s what he wants the Department of Justice to do. He wants the Department of Justice to now go back down to the states and say, “Hey, why don’t you figure out who really won these Republican-majority state legislatures? Why don’t you open the books and figure out who really won and name me the winner?”
Who is Jeffrey Clark?
Up until the days before Jan. 6, he’s somebody who’s a nobody. He’s somebody who is a mid-level Department of Justice official. Sometime in December, he’s introduced to President Trump, and he’s willing to say the things that other Department of Justice officials won’t for Trump. He’s willing to do what other officials like Barr, like Jeff Rosen, like Richard Donoghue aren’t willing to do.
And ultimately he drafts this letter to Georgia that calls into question the election results and falsely claims that the Department of Justice has some real doubts about the election, is investigating serious allegations of fraud. None of that was true, right? Those were lies that President Trump wanted the Department of Justice to tell. Jeff Clark was willing to tell them for Trump; the other officials weren’t.
It seems like he’s also carrying a threat, either explicit—it seems pretty explicit, that if you don’t sign this letter, you’re going to be replaced. And it seems like the president may have even replaced him for a little period.
Yeah, it seems like he did actually replace him for a little period, or at least was at the final stages of doing so. It’s only because there’s the threat of a mass revolt from other Department of Justice officials, from Rosen, from Donoghue, from people in the White House counsel’s office, from others that say, “If you do this, if you go forward with this, we’re all going to mass-resign.” And that seems to be the thing that holds Trump back, that prevents him from actually carrying this out.
So as all these things fail—we’ve had the pressure on the states; we’ve had the pressure on the Department of Justice; they haven’t succeeded. And we’re coming to Vice President Pence. Is he the last chance? Is that why the pressure is so intense on Pence?
Yeah, the pressure campaign on Vice President Pence is the last gambit to keep Trump in power. Basically, it’s the last lever that they can pull to try and steal the election. And Trump brings all the power he can, all the pressure he can to bear on Pence to do it, and Pence stands up to him and says, “I won’t do it. I’m not going to—I don’t have the authority to do this.”
And what we see in the evidence is that this is something that starts in December of 2020 and continues right up to the days leading up to Jan. 6, and then even on Jan. 6. And Trump does it privately, and he does it publicly. Again, he uses his powerful bully pulpit, and he directs his rhetoric and he directs the mob’s anger at his own vice president because Pence won’t do what he wants him to do.
The committee goes to great lengths to get John Eastman’s communications. How important was that, to get a court to turn those over?
I think it was very important for the rule of law and for understanding that a congressional subpoena should matter, that a congressional subpoena should have weight to it. There are a lot of people who defy congressional subpoenas, or try to. We have people in Congress right now, including a guy who’s running for speaker of the House, who defied a congressional subpoena.
So if you believe in the rule of law and you think that’s an essential element of our democracy, it was very important.
So who is John Eastman, and what’s his place in the story?
John Eastman is another a constitutional lawyer, a lawyer who didn’t really have any role in the first iteration of the Trump campaign, but he starts working with Giuliani, Kenneth Chesebro and others, and he manufactures this theory of the vice president’s power that says that the vice president of the United States is “the ultimate arbiter” on Jan. 6—those are his words, “the ultimate arbiter”—and can decide which electors that are sent to Congress are the valid ones, which ones are the ones that really should count.
And he offers a couple of different paths for the vice president on Jan. 6. All of them are unlawful. None of them are supported by the Constitution or by historical precedent. But what he wants Vice President Pence to do is to delay or obstruct a joint session of Congress. He wants Vice President Pence to refuse to count Biden’s certified electoral votes and then do one of a couple of different things.
So that’s what’s laid out in the memos. And what’s the response of the president to this plan?
The president fully endorses it. Trump fully endorses Eastman’s plan, so much so that he brings Pence into a closed Oval Office meeting with Eastman to hear it out, to try and push Pence down this path. And it leads to this remarkable moment where Pence is actually questioning Eastman in front of President Trump and is interrogating and impeaching Eastman’s story. He’s saying, “What you’re advocating is something I don’t have the power to do, and you’re even admitting I don’t really have the power to do this.” And yet Trump is pressuring Pence to do it anyway.
And so, again, it’s another moment that speaks to the unlawful intent of what Trump was doing, because here you have these moments where Pence is questioning Eastman in front of Trump, and Eastman concedes that none of this is really based in any kind of firm understanding the law or history, and yet Trump pushes Pence forward it to do it anyway.
It also seems like another moment when there’s two groups inside advising the president on it. Let me ask you about, because he’s good television, Eric Herschmann and his testimony, which is like something people remember from the hearing. Who is he, and why did he stand out?
Eric Herschmann is another guy and a lawyer who was loyal to Trump, and I believe he worked for Trump during the Ukraine impeachment proceedings, and somebody who certainly was a fierce Trump defender. And yet even he thought that the theories that were being pushed by Eastman and others to try and get the vice president to overturn the election results on Jan. 6, even this guy said, “No, this is crazy,” and even implies that it’s criminal, right, because he tells Eastman, “You’d better get a great bleeping criminal defense lawyer,” right? The clear implication of that is that Herschmann knows that what’s being offered here, the advice that’s being offered here is not lawful; it’s actually criminal.
And so the reason why Herschmann is so important is, again, it’s a lawyer in the inner sanctum, somebody who has Trump’s ear, who’s saying, “These things you’re hearing from these other lawyers, these aren’t legitimate; you can’t actually do these.” And yet Trump pushes anyway. He pushes forward anyway.
… Let’s finish the Pence story. The pressure on him, Mike Pence, who has been incredibly loyal to the president—how important was the decision that he was making under that tremendous amount of pressure?
I think Pence unquestionably did the right thing. He did the constitutional thing. He stood up for our democracy, and I don’t think he wavered for one moment in doing it. I think he knew from the moment that Trump first said to him, “Hey, I want you to block the certification of Joe Biden’s victory on Jan. 6”—I think Pence didn’t waver one second. He knew from the beginning that was wrong, and he didn’t have the power to do so. He knew that there’s no way the Founding Fathers of this country could have wanted a vice president to have that type of power. I think that’s well attested in the evidence.
But what I would say is, and he deserves credit for doing that, but this is also a pretty low bar to clear here, right? Because the vice president of the United States shouldn’t have the power to overturn an election’s results, and everybody should know that. And the fact that this was even questioned in the Oval Office and that a completely ridiculous theory of a vice president’s power was pushed by the president of the United States and people around him really should be shocking for people, because nobody could possibly think that Vice President Pence has the power to declare Biden the victor on Jan. 6, and yet that’s exactly what Trump wanted him to do.
It may not have been legal, but he could have done it. He could have stood up at that podium, and he could have said that. … What could he launch?
He could have. Well, don’t forget, too—look, one of the spookier elements in this whole story is that the mob goes down there to the Capitol and chants “Hang Mike Pence,” and they actually build a gallows out in front of the Capitol. They meant it. That was all an effort to intimidate Pence to do what he refused to do multiple times in his meetings with President Trump, that that mob goes down to the Capitol to try and intimidate Trump’s own vice president to get him to overturn the election results. That’s shocking, you know? …
And listen, how could Trump not know that this crowd was a threat to his own vice president? He’s the one riling them up against him. He’s the one riling this mob up against Pence. He surely has to know what he’s doing.
As you look back at it, if things had been a little bit different, maybe the election wasn’t—it was only one or two states, if Mike Pence had made a different decision, how close could we have come to it working, to overturning the election?
I think the story of Jan. 6 is that a number of people, including Vice President Pence, did the right thing. If any one of them had bowed to the pressure that Trump brought to bear on them, the results could have been different, and we could have had a very different outcome.
Certainly in the case of Pence, if you look at the memos that were prepared by these lawyers working for the Trump team that pushed this theory, that Vice President Pence had this power that he didn’t have, they were absolutely envisioning scenarios that would have plunged our country into constitutional crisis. There’s no doubt we would have had a constitutional crisis if Pence had done what they wanted him to do. And that’s no small matter. For the first time in American history, you have a president who refuses to abide by and recognize the peaceful transfer of power, and then does everything in his power to prevent the other guy from being inaugurated. It’s shocking.
You even had warnings. I think it’s Eric Herschmann who warns there will be riots in the streets if you do this, and they seem not to care.
What I think stands out from the evidence is that these legal theories are being proffered—so-called legal theories; maybe we should put air quotes around that—that most people will recognize the implicit threat of violence that was associated with them. That’s telling in and of itself.
So let me ask you, as you’re trying to reconstruct all of this and trying to reconstruct what the president was telling to other people, what did you learn? How hard was it to get to his communications, to what he was saying?
It was very difficult to break into the inner sanctum around Trump. One of the things you learn about Trump is he operates and he communicates like a mob boss. He is very insistent on communicating in ways that oftentimes don’t leave a trace. So he’ll use other people’s phones; he’ll communicate in a haphazard manner. He’s not known, at least during this period, to text, right? He doesn’t leave written instructions down anywhere. And there weren’t a lot of people in that inner sanctum around Trump who were willing to come forward and explain what was going on. There were a lot of people who were loyal to him that were going to make sure that they kept the truth hidden as much as they could.
So the committee really had to find witnesses who were as close to that inner sanctum as possible to tell the story. And the committee did. The investigative team and the people working for the committee found a number of people who could tell us what happened pretty close to that inner circle.
That might be a good segue to ask you how important was the [former White House aide] Cassidy Hutchinson testimony and her coming forward?
Well, I think it showed that she certainly was a participant in a number of meetings and had a lot of testimony about what others were saying. She shined a light on the fact of how much other witnesses weren’t saying, how much other people didn’t come forward to say, because certainly the guy she worked for, Mark Meadows, he could have come forward. He could have complied with the congressional subpoena fully; he only partially did. He could have fully complied, and he could have told the committee a lot of the details about what he was up to during this period and what President Trump was up to in this period, and he wouldn’t; he refused to do so.
So I think that mainly her testimony shined a light on the fact that there are all these other people who didn’t want to tell the truth.
Specifically, she talks about the magnetometers, that he’s told that there’s weapons in the crowd, that he wants to go to the Capitol. What does that part of her story show about Trump’s intent?
Well, on the wanting to go to the Capitol, I think there were a number of indications he wanted to go to the Capitol. And the real question is, what was he thinking? Why did he want to do that? And there were certainly people who thought—there were extremists and conspiracy theorists who thought he was going to go to the Capitol. And he even says in his speech, “I’ll be there with you.”
… The committee focuses on what they call the 187 minutes between that speech and between the video that he releases. Why is that period so important? Most circumstances, not doing something isn’t a crime. And in a lot of that period, he does tweet about Pence too. But a lot of that, he’s not doing anything. Why is the 187 minutes so big in the report and in the hearings?
It shows an unwillingness to do what was right, and that he at some level, perhaps at a very high level, wanted this to happen. It should be very easy to come out and say, “Hey, everybody’s got to go home and stop this right now.” And he does issue a couple tweets his defenders will point to, like where he tells people to stay peaceful. But as the committee documented, that was the result of negotiations with people around him, including family members, who were trying to get him to say something that was more responsible and worthy of being the leader of the free world.
His first inclination was to rile up the mob’s anger at his own vice president even more, right? The first tweet he actually tweets out after this is all going on is to rile up the mob even more. It’s only because there’s this intercession from people around him to try and get him to actually act responsibly and get them to stand down that he says anything different. And I think that that’s very telling.
When he ultimately issues his video, he praises the rioters; he praises the people who attacked the Capitol. He justifies it. He says that they had a good reason to do it. So again, speaking of intent, this isn’t a guy who was apologetic for any of this. This isn’t somebody who says, “Oops, this has gone awry; this had gone too far.” Quite the opposite.
Yeah, I think one of the most shocking things is that the people who have been going along with him all the way— Don Jr., Mark Meadows—
The whole Fox News contingent, yeah.
—all of the people from Fox News, Ivanka, who doesn’t fit in that category, but they’re all on the other side of like, “You have to be very clear about this.”
Yeah, because it’s common sense, right? It’s the obvious thing that a president should do. It’s so obvious. And he doesn’t do it. So at least he reluctantly does it. And even when he first says be peaceful, he says, “Stay peaceful.” He doesn’t say, “Go home.” His first inclination is “Stay peaceful.” Well, what does that mean? You want them to stay there throughout all this and not go home? At that point, there should be a very clear remark saying, “Time to go home,” and there wasn’t.
So you take all of this, write it up in your report, in the Jan. 6 report, everything that we’ve been talking about. The committee is coming to an end. They have a final hearing, and at that hearing they issue a criminal referral. What was the import of that? Was it symbolic? Was it political? Was it legal?
I think a lot of people would say it was symbolic because there’s no binding authority for Congress’ referrals on the Justice Department. … If you look at the indictment that was subsequently filed against President Trump, it’s clear the Justice Department did actually charge him with crimes that the committee thought were committed and referred him as committing. So clearly I think that definitely influenced how this went forward. …
I’ll ask you a non-legal question. The committee lays out, you lay out, the report, footnoted; there’s an appendix, but then there’s also all of the evidence, all of the depositions. There’s released documents; there’s the hearings. Millions of people watch them. But if you look at the poll numbers for Republican support of the president, you don’t see a dramatic change. He’s the leading contender to be the presidential nominee. What is it? What is your emotional reaction? How do you feel after all the work that you’ve done to see on that side that it doesn’t seem to have penetrated?
It tells me that this cult of personality remains strong and is impenetrable, that there are a lot of people who think that this guy represents them and represents America when all he really represents is himself. That’s all he really cares about.
And I think it’s up to people who are paying attention, who aren’t part of the cult of personality, to hold the line against this threat to our democracy. It’s up to everybody else to say, “You’ve got to get out and vote and make sure that Trump can’t steal the 2024 election,” because for all the talk about stopping the steal and the Stop the Steal campaign that Trump and his associates kept pushing in 2020, they were the ones trying to steal the election, and 2024 means we have to stop them from stealing that one.
After all the things that you’ve seen that happened in that period that you studied, does this moment feel like a pretty dangerous moment that we’re in now as we head into the next election?
There’s no question it’s a dangerous moment. You can see how easily former President Trump riled people up to anger and violence. … Look at the committee’s hearings and the report. You can see how extremists and conspiracy theorists heard his words as a call to arms for Jan. 6. It’s easy to see how they could hear his words in the future as a call to arms and act that way again.
So I think the bottom line is that the American people, those who aren’t part of his cult of personality, those who aren’t loyal to Donald Trump, need to hold the line.
How much do the trials matter at this point? The indictment, the federal trial?
Matter in what context? In terms of public opinion polls and everything? It’s tough to say.
How much does it matter to you? You guys have laid out what you found, what you feel is sort of the truth. You have public hearings, you had a report, and now there’s this moment: The president has been indicted. How much is at stake in those trials?
I do think legal accountability is fundamental here. It’s absolutely essential. This was a conspiracy to overturn our democracy, to overturn the results of a democratically held election. Nothing is more fundamental to being an American than that, and yet they unlawfully conspired to do it, and so there needs to be some legal accountability for these acts, and not just the small fish or smaller fish who attacked the Capitol, but the people who orchestrated this political conspiracy that gave us the attack on the Capitol, that caused it.
Now let me ask you—maybe this is not a legal question; maybe this is more a political punditry question, so you can skip it if you want. But you studied what he did. He tried to, according to the report, overturn the election, to basically bypass the legal system. Now he’s been charged in court, and you’ve seen the statements he’s made. You know he’s running for president, and there may be opportunities politically to bypass the legal system again. What do you make of that confluence of this moment, of where he is facing the trial, what he did before and how he might try to beat it outside of the courtroom?
There’s no question that this is a perilous moment in American history. You have one party in a two-party system that doesn’t want to be part of a democracy any longer, that doesn’t want to play by the rules of that democracy. America can’t function that way. We need two democratic—small “d” democratic—parties that want to abide by the will of the people, that want to contest for votes, that want to actually convince people that their side is righteous and deserve votes. And right now, one of the sides doesn’t want to do that at all.
