Brian Lehrer: This is special coverage on WNYC of the second impeachment of Donald Trump. Good morning everyone? I'm Brian Lehrer joining you as the House of Representatives now goes into a period of voting on the rules for the official impeachment debate to come under COVID rules. This vote in the house on these rules will take longer than it normally would so there is a break in the action on the house floor but not in the events surrounding the impeachment and the domestic terrorism investigation. With me now is AP white house correspondent Jonathan Lemire. Hi Jonathan? thanks very much for coming on.

Jonathan Lemire: Brian, good morning how are you?

Brian Lehrer: Good? Do you want to set the scene for everybody? First of all as to what's going on in the house, what is this rules package that they're voting on? and then what impeachment debate per say is going to take place?

Jonathan Lemire: Well first I'll even take one step back and from 30,000 foot just note what a remarkable moment in history this is. Of course, Donald Trump will now be the first US president to be impeached twice. He was of course the first time a year ago December 4th after his conduct where he pushed Ukraine to investigate a political foe who went on to become president-elect Joe Biden.

This time it is a single article about inciting the insurrection of the US Capitol just last week. It's fine and it feels like we've been living with that attack for a while but it has only indeed been a week Brian. As you laid out, this is now the procedural vote. The real action will be this afternoon. We have heard from lawmakers from both sides of the aisle. There will be some more debate later on and the timing that we received and we should caution the listeners that this could certainly change is that final vote will happen mid-afternoon somewhere in that 3:30, 3:45, 4 o'clock range.

Brian Lehrer: I thought if you'll indulge me that I might read the actual text of the impeachment resolution so the listeners know exactly what the members of Congress will be debating and voting on. It's just one article of impeachment so listeners you'll remember that in the first impeachment of Trump there were several articles this time it's just one. It says resolved that Donald John Trump president of the United States is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate.

Then it goes on to title that article Incitement of Insurrection. It says the constitution provides that the House of Representatives shall have the sole power of impeachment and that the president shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Further, Section 3 of the 14th amendment to the constitution and folks remember 14th amendment because that's an interesting sub part of this plot.

Section 3 of the 14th amendment to the constitution prohibits any person who has engaged in insurrection or rebellion against the United States from holding any office under the United States. In his conduct while president of the United States and in violation of his constitutional oath faithfully to execute the office of president of the United States and to the best of his ability preserve, protect and defend the constitution of the United States and in violation of his constitutional duty to take care that the laws be faithfully executed.

Donald John Trump engaged in high crimes and misdemeanors by inciting violence against the government of the United States. In that on January 6th, 2021 pursuant to the 12th amendment to the constitution of the United States, the vice president of the United States, the House of Representatives, and the Senate met at the United States Capitol for a joint session of Congress to count the votes of the electoral college. In the months proceeding the joint session, President Trump repeatedly issued false statements asserting that the presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by state or federal officials.

Shortly before the joint session commenced, President Trump addressed the crowd at The Ellipse in Washington DC. There he reiterated false claims that "We won this election and we won it by a landslide". He also willfully made statements that in context encouraged and foreseeably resulted in lawless action at the Capitol such as "If you don't fight like how you're not going to have a country anymore."

Thus incited by President Trump members of the crowd he had addressed in an attempt to among other objectives interfere with the joint session solemn constitutional duty to certify the results of the 2020 presidential election unlawfully breached and vandalized the capital injured and killed law enforcement personnel, menaced members of Congress, the vice president, and congressional personnel and engaged in other violent deadly destructive and seditious acts.

President Trump's conduct on January 6th, 2021 followed his prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election. Those prior efforts included a phone call on January 2nd, 2021 during which President Trump urged the secretary of state of Georgia, Brad Raffensperger to "find enough votes to overturn the Georgia presidential election results" and threatened secretary Raffensperger if he failed to do so.

In all this President Trump gravely endangered the security of the United States and its institutions of government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a co-equal branch of government. He thereby betrayed his trust as precedent to the manifest injury of the people of the United States.

Therefore Donald John Trump by such conduct has demonstrated that he will remain a threat to national security democracy and the constitution if allowed to remain in office and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Listeners if you joined in the middle of that, that is the actual text of the single article of impeachment that Congress will be debating and voting on, the House of Representatives will be debating and voting on this afternoon AP white house correspondent Jonathan Lemire is with us. Jonathan anything in there that you want to reflect on like why some of those words in particular or what kind of debate it sets up in particular?

Jonathan Lemire: They are extraordinarily powerful words Brian and show the stakes that the articles of impeachment are trying to convey here. That'd be obviously written by the Democrats in the majority that President Trump in a paraphrase is a danger to the nation that his sworn oath to protect that he caused that riot, the access edition last week that we saw that led to the violence of the Capitol that has claimed a number of lives at least five and resulted in it could have been far worse. I

think that this is a tragedy where each day that goes by more and more video or emerges that shows how much worse this could have been that some of those who were there, the rioters switched on the capital where they're looking for violence. Looking for bloodshed as a person close to the investigation put it to me in the last day or so that a few wrong turns.

If it worked for some bravery of some of the Capitol police that we could have had members of Congress potentially their execution is being live streamed on the internet. Things were bad as they were and almost were so much more dire. Now we of course are seeing a second effort to impeach this president and I think the stakes here are extraordinarily high.

One put on you and some have argued that the Republican talking point has been that this impeachment is divisive, that this is the moment after this tragedy should be one for the country to come together and therefore they shouldn't be pursuing this. Democrats say the exact opposite and they're getting some support from Republicans saying what the president did is unforgivable and there's a constitutional duty to impeach him, to proceed with the Senate trial even though he is set to leave office in just a week.

I think the two developments last night, Brian we're so ordinary here it put the president's faith in jeopardy some where the fact that Liz Cheney, the third ranking Republican in the House of Representatives announced that she will indeed be voting for impeachment and that Senate majority leader, Mitch McConnell, who of course has been an enabler and supporter of the president throughout his time in office boasts frequently about the work they had done together particularly stacking the federal judiciary.

He in obviously deliberate leaks in your times suggested that he was open to the idea of an impeachment and though while he did not commit to voting for removal himself at least not yet even that he is doing so combined with what representative Cheney did could give cover to a lot of Republicans here to move against the president. For the first time a president who has had remarkable popularity and enjoyed remarkable loyalty from his party throughout his time in office that is now being threatened and the president is silenced. He can't hit back. He doesn't have that Twitter account that he used now for four or five years to keep Republicans in line.

Brian Lehrer: Now, listeners, we will open up the phones during this portion of our special coverage as they vote on the rules, comments, or questions welcomed with Jonathan Lemire, AP white house correspondent and NBC News political analyst at 646-435-7280, 646-435-7280. Or you can tweet because your Twitter account hasn't been blocked because you didn't try to use it to foment insurrection.

You can tweet @brianlehre and we'll watch our Twitter go by too for some of your comments and questions there again, the phone number is 646-435-7280, 646-435-7280 with Jonathan Lemire. Jonathan, let's stay on what you just brought up. Mitch McConnell in this moment, the headline from the New York Times article that you cited is McConnell privately backs impeachment as house moves to charge Trump.

The lead paragraph says Senator Mitch McConnell has concluded that President Trump committed impeachable offenses and believes that Democrats' move to impeach him will make it easier to purge Mr. Trump from the party, according to people familiar with Mr. McConnell's thinking. There are really a few things in there, and it's not entirely clear what Mitch McConnell is doing. First. I think you said a minute ago that he apparently leaked this idea to the New York Times.

Jonathan Lemire: Here's what I'll say, and I'm certainly not going to guess about other reporters sourcing, but a story like this doesn't up here without at least some sort of passive approval from whether it's McConnell himself or people close to him. Because obviously, the reporters involved are some of the best in Washington. They would be competent of the veracity of the story and therefore went with it. This is undoubtedly true.

Now, the question is why? Why now is McConnell doing this? We know that everything he does is a political calculation. I don't think there are too many people who suggest that he is motivated by other means, and that includes some of his most ardent supporters, let's say that. We are seeing here and the reporting that we are getting that lines up with what the Times first broke yesterday is indeed that McConnell is surveying the scene and try to figure out what is best for his Republican party going forward.

Mind you, of course, that he is no longer going to be majority leader McConnell. Once those two senators from Georgia, Democratic senators from Georgia are seated giving Democrats the majority, McConnell blames, President Trump for that believing that it was his baseless accusations of election fraud that drove down voter turnout in Georgia, among Republicans and fired up Democrats to give Joe Biden a united Congress.

We see here that certainly McConnell and a number of Republican senators have for years now shaped under President Trump. They would complain privately, they'd complain off the record that they knew that Trump was bad news in many ways. That he was frustrating their ability to get things done, but they made this bargain, and let's be clear. They made it willingly. President Trump appointed three-justice to the Supreme court, a couple of 100 federal judges. The tax cut was passed so on and so on things that the Republican Senate wanted and supported.

Now is the moment. If they feel like Trump is going to be too much of weight around them going forward, is this the moment to cut bait and we shouldn't give too much credit here. for Mitch McConnell's apparent deathbed conversion. This is something he is doing because he thinks it's the best for his party going forward. If indeed he decides to vote for removal or just simply allows other Republicans to do so without trying to whip the votes, without trying to control his caucus, and at least so far, it's not clear. That's what he's going to do. We certainly could say that the white house has no real effort whatsoever to shake this impeachment battle. First of all, it's the white house west wing that is largely emptied out. There are very few people who still are working there, and those that are, have not been able to show any sort of impetus to do this. They are relying on the idea of simply that Republicans can read the poll numbers and see President Trump is still very popular among Republican voters, among the ranking file, among the base.

His popularity has slipped some according to polling we've seen in recent days, but it is still very high and they believe this, the white house believes this, but yes, we have seen some defections already. Some Republicans have voted for impeachment, some have signaled they will vote for removal in the Senate, but enough that we'll stay home, stay true for fear of alienating those voters, the voters who still liked Trump, the voters of those Republicans will need in elections to come.

Brian Lehrer: Let's take a phone call from Chris in Greenpoint, who I think wants to react to the Republican argument that we heard in the first part of the floor debate live this morning, that voting to impeach would work against reuniting the country. Chris, you are on WNYC. Thank you for calling in.

Chris: Thank you, Brian. I'm such a big fan and I'm sad that this is the reason that I get to talk to you first but I'm very sad. I feel like it's a lost cause kind of would it be the dream of America that might be hyperbolic, but it feels like it's suddenly our job to make peace with terrorists. It's frustrating and I feel helpless, powerless, even Republicans, it seems are afraid to vote for impeachment, for fear of their families from their constituency.

I just feel helpless and I guess I'm reaching out to you and the greater WNYC role to scream into the void as it were but I do want to thank you for all the great work that you're doing.

Brian Lehrer: Chris, thank you very much, and that has become one of the roles of my regular show. This is special coverage. It happens to be taking place during part of the time that my regular show would be on, but one of the roles has become to provide a place where people can scream into the void as Chris put it because people have needed to do a lot of screaming, not just these last seven days or these last seven weeks but certainly these last five years.

Now, he talks about the difference between holding the president accountable by actually voting to impeach and convict, and just saying that he did a bad thing. I wonder Jonathan since we talked about Mitch McConnell's role if you can talk about the role or positioning now of house Republican leader, Kevin McCarthy that is the leader of the Republicans in the house, McConnell of course in the Senate.

McCarthy is among those who, even after the riots voted to block the electoral college results from being accepted by Congress later that night. He has since been reported to say in his own way that Trump's behavior might be impeachable, but your associated press also reports that McCarthy said this. Impeachment at this time would have the opposite effect of bringing our country together.

Exactly that line that Chris and Greenpoint was reacting to. How do those things fit together because I think there are any number of Republicans now who on one level or another, in fact, I'm going to play a clip before you even answer this. This is a clip of Lindsey Graham from last Wednesday night after the riot after the insurrectionists were cleared and they went back to vote, and Lindsey Graham broke up with the president at that point. Here's 14 seconds of that dramatic moment.

Lindsey Graham: I hate it then this way. Oh my God, I hate it. From my point of view, he's been a consequential president, but today the first thing you'll see, all I can say is count me out, enough is enough.

Brian Lehrer: Count me out. Enough is enough. This is how it ends, and yet, Jonathan, Lindsey Graham has come out with that same line in the last day that he will not vote to convict President Trump on these charges and that it would be divisive to do so. How do those two things fit together?

Jonathan Lemire: More than that, Lindsey Graham traveled with the president on air force one yesterday to Texas, when the president paid a visit to the border wall. I think that there are two different types of Trump supporters in Congress. McConnell, as we just detailed, it always had an uneasy relationship with the president. They were each other's best interests, but there were never close.

McConnell was not out front fervent supporter of the president like others in his party have been, but Kevin McCarthy and Lindsey Graham certainly are. These were true believers. Graham, of course, famously, had run-ins with Trump and was very critical of Trump during the Republican primaries back in 2015, 20 16, but grew to become his perhaps closest ally in the Senate, frequent golf partner, and Graham was used to deliver messages back and forth between McConnell to Trump.

Trump used Graham to get the temperature of how things were on that side of Pennsylvania Avenue. In fact, that's part of what happened yesterday, in terms of their meeting. Graham obviously has one eye towards the post-Trump era. He was in the clip you just played. Very critical of the president's behavior last week, but he is not willing to fully sever that relationship. Same with McCarthy who yes, privately has indicated that what Trump did was perhaps impeachable or maybe as he's advocated to some worthy of essential stopping short of impeachment, but still some reprimand, but he is not willing to publicly break with the president, at least not yet.

There's no indication that he would support any impeachment vote today. He remains publicly, a Trump supporter, with the eye, knowing that Trump is indeed as just outlined, still so popular among most Republicans. Now can calculation change? We don't know what Trump's influence is going to be between now and say the 2022 midterm elections. That's the great unknown in American politics right now.

If the Republican party goes through with this, Trump is indeed, whether he's removed from office or not, but if there is some break here, does the Republican establishment? Are they able to turn the page on the president, and leave Trump exile at Mar-a-Lago or does Trump remain extraordinarily visible and powerful figure? That's going to be harder to do without a Twitter account.

I wish it cannot be overstated how influential that is in terms of keeping Republicans line. He has said, that he wants to remain active. He wants to potentially be GOP kingmaker. He might even run again in 2024. That is a calculation of the parties grappling with, and at least for now believes that stay in Trump's good, grace, and staying in the good graces of the Trump voters would be beneficial to his party's chances to potentially retake the house in 2022.

Because that's remember more times than not the party that does not have the presidency, does well in that first set of midterms and it wouldn't take much for Republicans to gain control of the pickup on our seats, to gain control of the House of Representatives.

Brian Lehrer: This is a special coverage of the impeachment of Donald Trump. Brian Lehrer, with you with Jonathan Lemire AP white house correspondent, as the house is currently voting on the rules for the impeachment debate to come just after that. We are filling that gap. Mitchell and Stuyvesant town, your on WNYC. Hello Mitchell.

Mitch: Hello, Brian. Good to hear your voice as always. This is not Mitch McConnell, this is Mitch Raven. Let me be clear. Although if it were Mitch McConnell, I would be voting for impeachment no question immediately, but my question to you, Jonathan, is I enjoy you by the way on Joe all the time is, what do you think about, vice president Pence's after being, threatened with being hung?

The words are hard to say has now gone back to Trump and his hiding, and not going forward with the 25th amendment. What are your thoughts about what's really behind this? Is it simply fear? What is it?

Jonathan Lemire: The relationship between Trump and Pence is a fascinating one. Thank you so much for the question. As people close the vice-president have said in recent days, Mike Pence couldn't have been more loyal to Donald Trump, for four years. After the election, it is true he did not embrace at least not as much publicly the president's rhetoric about this being a fraudulent results were rigged election or voter fraud.

He didn't really do that, but certainly, no one was questioning his loyalty to the Trump-Pence ticket to that movement. Trump grew angrier about that. Particularly as all the legal challenges to the election fell by the wayside and were defeated, the president's focus became on January 6th. That was the moment when the electoral college was to be certified in Congress if that was going to be the moment to try to overturn the results and he believed incorrectly, that Pence could do that.

Pence broke with the president. We saw that the letter he outlined and released last week, just hours before the insurrection began saying that he did not have the power to do so that he was going to, do his constitutional duty. Since then, the men, while Pence was inside, Congress and was inside the Capitol and there were indeed a violent chance about the vice-president and his life was very much in danger there. President Trump never once reached out. He never once called him, never once went to check on him.

The two men did not speak for a few days certainly and then as that's, when speculation grew about the 25th amendment. Now we know now that seems very unlikely to public cabinet members have resigned. There doesn't seem to be much of an appetite among of the remaining members of the cabinet to do so. Vice president Pence himself has sent signals that he wouldn't support it, but we're not seeing him out there in front right now, defending the president at all.

He, in fact, in his public statements of late made clear that he was indeed just falling his duty and while he would not support the 20th amendment. There was no condemnation for vice president Pence, about this impeachment movement. Certainly no defense of the president, not by name. The two men did meet in the white house the other night, it was described as a cordial it's stilted meaning, and that was in part the president's efforts to make sure that vice president Pence would not embrace the 25th amendment.

In that regards, perhaps it was successful and the vice-president his future here remains unclear. He is cooperating with the transition. He is saying goodbye to aids. He is telling people close to him that he plans to split time between Washington and Indiana going forward. He's also someone who had long suspected he too would run for someday. Maybe he thought it would be 2028, but now of course he could potentially do so in 2024. I think he's making calculations to that effect now.

Brian Lehrer: Take me one step deeper into Pence's brain to the extent that you can. Here's The New York Times headline this morning on a Pentangle article. The headline is Pence reached his limit with Trump. It wasn't pretty, and it details a phone call that I guess has now been leaked, between Pence and Trump, who called the vice president's residence to push one last time for him to try to overturn the election results on the night before January 6th.

The quote here of Trump to pants is, "You can either go down in history as a patriot, or you can go down in history as a P-word and yes, it's the same P-word that we associate with the access Hollywood tape. He told Pence, you can either go down in history as a patriot, or you can go down in history as a P-word. To this idea in the headline that Pence reached his limit with Trump, it wasn't pretty.

He nevertheless, just like Kevin McCarthy is drawing a line at not apparently going to a yes, vote on impeachment, even though he reached his limit with Trump. McConnell Isn't certain whether he will go to a yes, vote on conviction in the Senate, even though he's reached his limit with Trump pants reached his limit with Trump. It wasn't pretty and yet he transmitted that message to Nancy Pelosi last night. Pence stared saying, no, I will not invoke the 25th amendment. Why as far as you could tell, did he drive that particular line when it was available to him?

Jonathan Lemire: It's a balancing act that all of these people in Trump's orbit are trying to maintain right now. Certainly that is a favorite word of the president. The one that we cannot say on air here, one that he uses privately quite a bit, the vice president I think is first of all and hearing his constitutional duty.

I see he did not bow to Trump's pressure, and it wasn't just a phone call the night before the six, it was weeks worth, but it was an intense lobbying campaign from Trump to Pence to try to overturn the election result in, as he presided over Congress that day that he, the president had been convinced by some dubious legal opinions that was possible. The president as of his aides say that he took that matter seriously, but he commissioned a lot of investigation.

Research went to whether he could found that he couldn't, and therefore would not. He was not going to cross that line, but I also think he is mindful of his own place in the party. The fact that Trump still enjoys support from the vast majority of Republican voters, figuring out what his next step may be. It was not willing to invoke the 25th amendment. Although it's also clear that it's not sure that he would have enough support to do so anyway, that it required or not, there will be enough of cabinet officials who have signed off on it.

I think that right now the Republicans have decided this has that impeachment is rephrase that. Obviously there are some Republicans who have embraced this impeachment effort and others are at least willing to entertain, but I think there is real drama here. What happens next, tragedy is going to be impeached. It's going to be a bipartisan impeachment. There won't be a lot of Republicans, but there will be some, and then it moves to the Senate. I think it is now an open question as to what happened.

That was very different than what the president's last impeachment. There was no doubt that he was going to be acquitted by the Senate. In fact, Mitt Romney was the only Republican to break ranks and to cast one vote for conviction. It is still unlikely, the people that we talk to in Washington say that it's still at this very moment unlikely the president will be removed, but it's what the president will be removed, but that's not an outcome is not certain. It's only certain` if McConnell suggests that he will vote for removal and we may see a lot of dominoes fall and we may be on the brink of a very momentous political event here in Washington.

Brian Lehrer: Dorian in Las Vegas. You're on WNYC. Hello from New York, Dorian.

Dorian: Hi, good morning. I'm a lifelong Republican retired Lieutenant Colonel. I will tell you when my life ended up holding street immigrant. 97 years account give or take two months. There was this little thing called the Beer Hall Putsch in Germany, and even Hitler was convicted and spent five years in prison after failed coup attempt. All of my brothers retired, inactive field. This was a coup attempt. I don't get it. Why the hesitation? Thank you. That's my [unintelligible 00:30:53]

Brian Lehrer: [crosstalk] Dorian since you identified yourself as a retired Lieutenant Colonel, can I ask you your impression, at least about how much support there might've been for the insurrection among active-duty members of the military? This is a question that has been raised recently.

Dorian: It's funny, our modes of communication, the Duffel Blog all sorts of phone calls. My phone has been burning, I'm actually the executive officer of Fifth Special Quip, first battalion special force group retired. While there is some support, so many million people voted for him, while there is some support of some people in the lower ranks and some support of some crazy people like Flynn and others in the higher ranks. A majority of us, the majority of it's like the joint chiefs of staff.

We support on the constitution not a person, not an ideology other than the ideology of democracy. I spent 22 years of my life supporting the constitution and excuse me, a bunch of us get very upset about this and get very, very upset if I had to on a court-martial board to convict anyone, even of treason, knowing that in the military, that's death, I would convict you don't do that in a democracy.

I hope everyone who was in the military, regardless of guard, regardless of reserves who took part in the assault on the Capitol, I hope they're found, they will be then tried. They will be then found guilty and so they [unintelligible 00:32:48]

Brian Lehrer: Dorian, thank you very much and I hear the emotion in your voice. Jonathan, if we associate retired male Lieutenant colonels with generally being stoic and not be training a lot of their own emotion there it was from Dorian who started out that way, but couldn't help himself by the middle to the end of that call. I want to wrap up with you and then listeners, we're going to bring on Cardozo law, professor Jessica Roth, and talk to her about what a criminal prosecution for incitement to insurrection might involve.

Jonathan, what we're not talking about, because the focus is yet again on Donald Trump as an individual. What we're not talking about is all of these riders, all these insurrectionists, all these domestic terrorists and yes, terrorism, because what is terrorism? The definition of terrorism is using violence to try to bring about a political end.

Domestic terrorists, what we're not talking about is the revelations over the last few days, about how violent, about how bad this really, really was, and the FBI's investigation into that. Trying to find people who are still at large, into how much active duty military support there was and Capitol police support there was, and there's a threat still out there that's very, very active as far as the FBI is concerned, right?

Jonathan Lemire: There most certainly is but also just as a side note, not talking about the fact that well, more than 4,000 Americans died of COVID-19 yesterday in a pandemic that a surging out of control with no efforts, no leadership from the White House to handle it at all.

Brian Lehrer: Yet another record high day for deaths we should say, go ahead.

Jonathan Lemire: Another record high. We saw that news conference yesterday at long last from the department of justice and the FBI on the Capitol attack. It raised a lot of eyebrows and it took six days for a briefing. It raised eyebrows that the FBI director, Christopher Wray was not there. The acting attorney general Jeffrey Rosen was not there but certainly the message that was meant to be sent from the news conferences that they're taking a seriously, where they have made arrests, they will find others that the investigation is sweeping and massive and will go on for weeks and months potentially but that of course is not the whole story. The other part of it is the ongoing security threat.

Washington D.C. is a fortress right now. It has locked down a week before Joe Biden's inauguration in the downtown area. The area on the White House, the around the Capitol, that's incredibly hard to get around security fencing is up, security perimeters have been created. The mall has been blocked off in many portions of town because of what they fear could still happen.

Certainly, there has already been shatter being picked up by the FBI, by law enforcement groups of other potential acts of violence that are being planned between now and the 20th and potentially on the 20th itself. Securing Joe Biden's inauguration one week from today, it's going to be an extraordinary challenge, even though it will be much smaller because of the pandemic, much smaller than your average inauguration.

It is still going to be a significant and important event and a very visible target. There is a lot of work that is being done around the clock right now to investigate these threats to try to safeguard that events as we all embrace ourselves; we've had a dark, very trying week in this country and unfortunately, I think the week ahead stands potentially be more of the same.

Brian Lehrer: Jonathan Lumiere, AP White House correspondent at NBC News and MSNBC political analyst. Thank you so much for giving us some time on what I'm sure is a very busy morning of coverage for you. Thank you. Thank you.

Jonathan Lemire: Thank you. Always happy to do it.

Brian Lehrer: This is special coverage of the impeachment of Donald Trump. They are voting on rules for the official impeachment debate to come. During this break in the action, Brian Lehrer with you on WNYC, and next, we will have Cardozo law professor and former prosecutor, Jessica Roth on the legal requirements for prosecuting somebody for incitement to insurrection. That is the charge against the president. Stay with us.

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Brian Lehrer on WNYC with not just a regular Brian Lehrer Show today, but special coverage of the second impeachment of Donald Trump. We're expecting NPR coverage from Washington to resume at noon. I will take you up until then and with me now on some of the legal aspects of this impeachment, as well as the investigation and prosecution of some of the rioters themselves is Cardozo law school, professor Jessica Roth, she is co-director of the Jacob Burns Center for Ethics in the practice of law And previously she was a federal prosecutor in the US attorney's office for the Southern district of New York here in Manhattan for seven years. Professor Roth, thank you so much for joining us on this momentous day.

Jessica Roth: It's my pleasure to join you. Thank you.

Brian Lehrer: People are saying if Trump is not convicted in the Senate of this charge of incitement to insurrection, he could potentially be charged with it in court criminally. Could you describe as a law professor, what incitement to insurrection or to riot is in legal terms and what a prosecutor would need to prove to a jury to get a conviction on that?

Jessica Roth: I think the most important thing to bear in mind is to pass First Amendment scrutiny. A prosecutor would have to prove that the defendant, whether it's the president of the United States or anyone else engaged in speech and conduct that was both directed to inciting or producing imminent lawless action and also was in fact likely to incite or produce such action.

That's pursuant to Supreme court precedent and so that's thinking about both the intent of the speaker and also the objective reality of the context in terms of was it actually likely given the words and the overall context to actually incite or produce imminent lawless action. That imminently is what's really quite critical.

Brian Lehrer: Let me play a couple of clips that in this theoretical trial could become pieces of evidence and get your take as to whether they rise to that standard that you just described of willful incitement to riot. I want to go back to September 23rd. This is during the campaign. This is just a seven-second clip. Listeners pay attention. This will go by in a flash with a quick reporter’s question and a quick response from Trump.

Interviewer: Will you commit to making sure that there is a peaceful transferal of power after the election?

Donald Trump: Well, we're going to have to see what happens.

Brian Lehrer: He didn't say go and riot but when asked whether he would commit to making sure there's a peaceful transition of power after the election, he hatched his words were, "We're going to have to see what happens." Six days later, September 29th it's the presidential debate. The moderator, Chris Wallace from Fox News asked him a question. This is a 22-second clip, we're going to hear Chris Wallace his question, and the first part of President Trump's answer.

Chris Wallace: Will your urge your supporters to stay calm during this extended period, not to engage in any civil unrest, and will you pledge tonight, that you will not declare victory until the election has been independently certified? President Trump, you go first.

Donald Trump: I'm offering my supporters to go into the polls and watch very carefully.

Brian Lehrer: Two pieces of evidence in the hypothetical criminal trial of Donald Trump for incitement to insurrection. Professor Roth, do you have the goods?

Jessica Roth: I think you have very important evidence that you would put before the jury and that would be part of the overall case if you are going to charge incitement. As I said, it is the overall context that is critical is not a single statement. What you have played so far, to my mind is critical evidence. There's more as you and I both know. I think all of it is very, very important so that the finder of fact would be considering all the relevant context.

Brian Lehrer: If you're looking for all the relevant context, then declining to tell people not to write it could be evidence of winking at them to riot.

Jessica Roth: It could be. It's an important part of the context. We'd also want to think about what people were posting, announcing their plans to commit acts of violence and disruption of government processes because I think that also is part of the context.

Brian Lehrer: Here are two more and these are not Trump himself but things that were said presumably on his behalf at the rally that preceded the riot last Wednesday, this is a son Donald Trump, Jr. This is just six seconds.

Donald Trump, Jr: What do you want to call them? Give me a name.

[crosstalk]

Brian Lehrer: Look at this up. That was the proud boys' thing, stand back and stand by everybody knows that more evidence, here is Trump Jr.

Donald Trump, Jr: We're coming for you, and we're going to have a good time doing it.

Brian Lehrer: We're coming for you are the keywords there and here's Rudy Giuliani, 16 seconds of him last Wednesday.

Rudy Giuliani: If we're wrong, we will be made fools but if we're right, a lot of them will go to jail.

[cheering]

Let's have trial by combat.

Brian Lehrer: Let's have trial by combat Professor worth maybe that's the most explicit out of all the statements that we play, maybe out of all the statements that exist. Could Rudy Giuliani be under criminal investigation for incitement to insurrection? Secondarily, just what Giuliani says on behalf of the President confer any legal liability on the president?

Jessica Roth: I think Rudy Giuliani could be investigated. I think anyone who is involved in speaking to the crowd, in that context, could well be under investigation. I think that whether or not his statements essentially can be attributed to the President, I think it depends in part on whether the President was hearing them and processing them. Again, all of this is very, very important to understand the context into which any subsequent statement was made, and whether the speaker of any subsequent statement would have appreciated the flammability of this situation.

Everything you've played so far to my mind is part of that context. Obviously, the closer we are to the acts of violence in question, and Giuliani's statements at the rally, are getting very, very close. Those build in their significance again, because of the emergency standard, but all of it everything you've played so far is relevant context.

Brian Lehrer: I think we have a legal question here from Peter in Manhattan. Peter, you're on WNYC with Cardozo law professor Jessica Roth. Hi.

Peter: Hello, hello. Thank you for taking my call. First-time caller, a long-time listener. I've been listening for quite a while now since so well, a concern ever since very closely since the election, and no one seems to have brought up the fact that he's a flight risk. He's got access to Trump. Trump is a flight risk, and he's he has access to Air Force One. I think a lot of people know aware, he'd be welcomed with open arms and hailed as a hero. [chuckles]

Brian Lehrer: I'm sorry.

Peter: I'm sorry.

Brian Lehrer: He could bonk with Edward Snowden, who's hiding out in that same country. Peter, I take your point on flight risk. Of course, Professor Roth, he hasn't been charged with anything yet and I guess that would come into play in a bail hearing, or whether somebody had to be held awaiting trial. I'll entertain that hypothetical because we know that, this incitement to interaction aside, Trump might be charged here in New York with various crimes at the Manhattan DA and the New York State Attorney General investigating financial crimes and things like that. Maybe he really is a flight risk. What do you think would happen in that case? If he was indicted? Would he be put in jail so he didn't flee the country?

Jessica Roth: That's something that the judge who would be presiding at the bail hearing would have to determine taking into effect all into account. All the facts and circumstances including community ties, financial wear with all, and contacts for the ability to flee. That would be a fact-intensive inquiry. Certainly, something judges do take into account his motivation to flee as well as the opportunity and the means to do so. That can be the product of the severity of the potential sentence that somebody would face, as well as potentially other considerations that might motivate them to flee.

Brian Lehrer: Let's turn to the investigation and prosecution of the people involved physically in the riot. Mark in Parsippany has a question about that and then I have a question about that. Mark, you're on WNYC with law professor Jessica Roth. Hi.

Mark: Hi, good morning, Brian. Thank you so much for your wonderful program. The work you and your team do is so important. Please, please keep it up.

Brian Lehrer: Thank you.

Mark: My question to the professor is, given the fact that the storming of the Capitol would have to be classified as a violent felony and given the fact that people died as a result. Why are they not heard the term felony murder as a possible charge used? Been watching for a week now and this was one of my first thoughts once I heard people died. I would just like to know more about that.

Brian Lehrer: Actually, I think the US Attorney for DC who have that news conference yesterday, did cite felony murder. I think he used that exact term for some of the charges that could be forthcoming. Professor Roth, Is that your understanding?

Jessica Roth: Yes, I think we are starting to hear people talk about that as a possibility given that somebody did die. Multiple people died, but including one Capitol Police officer who was on duty at the time. I think felony murder is very much something that would be considered if murder charges are brought felony murder would be a possible theory for that.

Brian Lehrer: What about terrorism charges? If terrorism is defined as an act of violence intended to influence a political outcome, that was terrorism to the layperson's eye. The US Attorney in the news conference yesterday seemed to say he was not looking at that specific charge. Do you understand that?

Jessica Roth: There's a number of other statutes that could be used. I think probably, the prosecutor is going to be exploring those first. I think there isn't one single law that makes domestic terrorism a crime and so it may be that the better course is to use other statutes in prosecuting the conduct that did occur.

Brian Lehrer: During the siege, members of Congress had to huddle in rooms with each other, and the partisan divide over wearing masks for COVID protection didn't and even those extreme life and death circumstances and from the reporting, I've seen even when democrats asked Republicans to please wear a mask as they were huddling in close quarters and many said no. Now at least three democrats have come down with COVID, including Bonnie Watson Coleman of New Jersey, who's 75 years old. Does that leave anyone in legal Jeopardy for, I don't know, reckless endangerment or if someone were to die, God forbid, a manslaughter charge or anything like that.?

Jessica Roth: Potentially, it could leave people in jeopardy. The most straightforward charge, I think would be reckless endangerment through recklessly that is aware of the risk, but disregarding the risk of exposing somebody to harm. If you could establish the person who didn't wear the mask was aware of the risk and that it was a substantial and unjustifiable risk of transmission of something that could cause harm, that is a potential charge.

We're starting to see people talk about that broadly about COVID exposure. The Attorney General in Massachusetts Maura Healey brought not a reckless endangerment charge but in neglect charge against those who are operating a facility for veterans who were exposed to COVID. I think we're going to see that charged perhaps being brought more broadly. In the specific context you mentioned, that certainly is something that would be a potential line of investigation.

Brian Lehrer: If you're just joining us, listeners, we are in special coverage of the second impeachment of Donald Trump. By the way, just for a little bit of levity, Andy Borowitz, the New Yorker satirist had a made-up headline this morning, "Shocking Poll Results: Most Americans Say This is Their Favorite Impeachment of Donald Trump." There's the Borowitz which take on today, but we are in a voting period where they're voting on the rules.

This is a parliamentary procedure for the two-hour debate to come this afternoon, after which they will vote on impeachment itself. We are talking just until 12 o'clock when we will throw it back to Washington for coverage from the scene with law professor from Cardozo, Jessica Roth, who was also a prosecutor in the US Attorney's Office for the Southern District of New York, which means Manhattan and Bridgette in Manhattan, you're on WNYC.

Hello, Bridgette. Bridgette, turn your radio off so you don't get the seven-second delay echo. Okay? Why do we have a second seven-second delay? If people say any of those seven words that you can't say on television or radio, we won't lose our FCC license to operate. It doesn't happen much, but it happens once in a while. We have that delay. I can press a button, the engineer can press a button and that bad word will be deleted. Bridgette, do we have you in real-time now?

Bridgette: Hello.

Brian Lehrer: Hi, there.

Bridgette: Hello.

Brian Lehrer: Hi, Bridgette.

Bridgette: Hi. Thank you for taking my call. Hi Brian. I have a question that has been in my mind. I would like to know what is the FBI and the CIA going to do against the fascist movement basically? It's been going and going, they are going unpunished in Charlottesville when they kill. It's okay, I understand they're going to prosecute one guy who killed the demonstrator but this movement is really great.

The same way they infiltrated back in the days, the Black Panther and everything which I think was wrong, by the way, because here we are not committing this kind of crime. Why can they infiltrate these groups and stop them in their tracks? We're going to need to do something about that.

Brian Lehrer: Hearing your voice I guess I should have called you, Brigid, not Bridgette. Professor Roth, this is a great question for you as a former prosecutor in the US Attorney's Office because as I understand the role of federal law enforcement, it is not just to prosecute crimes after the fact, but certainly at the level of the FBI, for example, it's to try to do exactly what Bridgette was describing, which is to try to eradicate the violent potential of these white supremacist and other extremist movements.

Where would your work have come into play where the US Attorney's Office in Manhattan's work have come into play or above that level, the FBI in Washington?

Jessica Roth: Well, the caller's absolutely right that prevention is a critical component of what law enforcement must do and is doing. Part of that is monitoring social media because a lot of these groups are quite active on social media and just keeping track of what the plans are that are being put out there, really for anyone to see. Then also a more active role of tried to understand including through infiltrating through undercover agents, what's happening inside these organizations to get more detailed information that may not be available on social media.

It's critical that law enforcement not be just sitting on their heels waiting for something to happen or wait until it's imminent to be playing an active role in an investigatory active capacity. Whether they're actually able to take enforcement action against an individual or group of individuals who are planning something is subject to some of the standards we were talking about earlier, in terms of imminency when we're talking about pure speech. They can take action when particular activities are being planned, and they get to a certain level of seriousness, where there's the potential of bringing a conspiracy charge or an attempt charge.

So long as people are simply talking about what they'd like to do, and enforcement action typically is not available, that doesn't mean that law enforcement shouldn't be actively engaged, because they want to be in a position to take action as soon as it is legally permissible to prevent things like what happened last week from occurring.

Brian Lehrer: We know from the FBI that there are ongoing threats possible. Do you see any relationship, and I realized this is hypothetical, but any relationship between the outcome of the impeachment vote this afternoon and the physical threat in the next few days?

Jessica Roth: That's hard for me to gauge as an outsider. I suspect and I hope that the law enforcement agencies involved are doing some of the things we just talked about in terms of actively monitoring social media, hopefully having a presence on the inside, speaking with people who are on the inside so that they will have a better sense about what if anything is being planned in the days to come and what the reaction is to today's proceedings.

Brian Lehrer: We've got a minute left in this portion of our special coverage, and then we'll throw it back to Washington. Professor Roth, what will you be listening for this afternoon? I understand it's just going to be two hours a floor debate before a vote. I don't know if Republicans are going to raise due process arguments like can the president mount a reasonable defense. I realized this is not the trial, but the indictment or impeachment phase, but that or anything else, what we'll be watching for this afternoon?

Jessica Roth: Well, it's important to remember that impeachment is a political process and not a criminal proceeding. The standard for incitement that we were talking about that would apply in a criminal trial, doesn't apply to the political process that is impeachment, but it will be interesting nevertheless, to see if there are some people who are supporters of President Trump, have tried to conflate the two things and push that as a reason to oppose impeachment.

It's important again, for listeners to bear in mind that that legal standard doesn't apply, especially said that criminal legal standard doesn't apply to impeachment. I'll be interested to see the ways in which the members talk about what is impeachable in this context, and also whether they move away from the strict discussion of incitement and towards the conduct in and of itself, and the overall context in which it occurred.

Brian Lehrer: Jessica Roth, law professor at Cardozo, former federal prosecutor in the US Attorney's office in New York. Thank you so much for all the insight.

Jessica Roth: Thank you.

 

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