Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. The January 6th investigations are taking several turns lately that could further expose whatever role Donald Trump himself played in the crimes and the attempt to undermine the peaceful transfer of power on that day. The Supreme court may be you've heard this is allowing the subpoena to stand from the January 6th Congressional Committee for Trump documents pertinent to the case. No executive privilege for evidence in a thing such as this.

There's an investigation by law enforcement in Georgia. This is really interesting and new over the Trump phone call caught on tape to the top state elections official, you know him, Republican Brad Raffensperger, who's been in the news Trump asking Raffensperger to find enough votes to reverse the result. The attorneys general of New Mexico and Michigan, and a Congressman from Wisconsin have all asked the justice department now to investigate cases of fake electors. These are suddenly in the news much more though it's not new that it happened. These fake electors, people saying they were going to vote for Trump in the electoral college from states that Joe Biden won.

There are several investigations at the state level in New York, more relevant to Trump's business practices, potential real estate, or tax fraud that attorney general Letitia James has just released evidence from in recent days. We are happy to have back with us now the former hosts of WNYC's beloved podcast Trump, Inc, Ilya Marritz, and Andrea Bernstein. They are now both NPR reporters. They've joined the mothership covering Trump legal cases for NPR. They're also making an investigative podcast about January 6th for Pineapple Media.

I'll say that Ilya is currently joining us from Newark Airport where he has a flight to catch momentarily. For the first time in my life, I'm going to root for a flight delay but he might have to leave early. Andrea, we should say is also the author of the book, American Oligarchs, the Kushner, the Trumps, and The Marriage of Money and Power. Andrea and Ilya, great to have you back on the show. Welcome back to WNYC.

Ilya Marritz: Hi Brian.

Andrea Bernstein: So great to talk to you, Brian.

Brian Lehrer: Let's start with the Supreme court. Ilya, since I don't know how long we'll have you if you want to dive in first, what did they allow the January 6th committee to see and why might it be significant?

Ilya Marritz: What the Supreme court said basically is that a lower court ruling, which cleared the way for the national archives to share requested materials from the White House with the January 6th committee, the Supreme court declines to take that up. They said that that lower court ruling can't go ahead.

We know that the January 6th committee is really interested in building a picture of what was going on in the White House, not only on January 6th, which of course is of great interest but also what was going on in the weeks and months beforehand as people like Rudy Giuliani and Sidney Powell and general Michael Flynn were in and out and talking up their notion that had been a stolen election. We know it was not a stolen election, but very much talking up and spitballing ideas about what could be done.

Brian Lehrer: What are the potential crimes, Andrea?

Andrea Bernstein: This particular Supreme court decision wasn't about any possible crimes. It was about whether the January 6th select committee has the right to see the documents. They have no enforcement power. What is really interesting to me about the Supreme court decision is that as we know, because we talked about it many, many times when the Manhattan DA tried to investigate Trump. Trump sued. The case went to the Supreme court twice that took two years.

This took just a few months for the Supreme court to say something very interesting, which was, they didn't even want to address the issue of whether a former president could assert privilege. They just said fine. He doesn't even have a basis for privilege. We're not even going to take that up and the committee will get these documents and it has already started to get these documents that Trump was hoping to keep secrets. That is a very accelerated schedule compared to what we're used to.

Brian Lehrer: Andrea, how do the politics and the investigations intersect in your view either to give any potential criminal charges more fuel or in ways that make prosecutors reluctant perhaps to look political when real crimes may have been committed by the former president?

Andrea Bernstein: There's a couple of things that are going on at the federal level. The January 6th committee has only the power to get to the truth. They can refer matters to the justice department, but they have no prosecutorial or law enforcement power. We do know that in the case of Steve Bannon, who refused to cooperate with the committee that they referred his case to the justice department. In fact, the justice department indicted Bannon for refusing to cooperate. That case will work its way through the courts, but there's no remedy. Bannon can be prosecuted, but there's no way to make him turn over the documents.

There is that intersection and then there's let justice department under attorney general Merrick Garland is doing, which seems to be taking a very, very measured approach to criminal investigations. They just last week made their most serious indictment in the January 6th attack, which was a seditious conspiracy charge against members of the Oathkeepers. There's no indication that they're investigating the Trump administration. It's unclear where Biden is on the issue of, should he look back or should he look forward with investigating Trump.

It's a very, very complicated thing to indict a former president and something that I think Biden has indicated he does not want to do. That is what is going on regarding January 6th. Then separately from that, there are all these New York investigations. I think as much as the Trump family would like for people to understand that it's all one big ball of wax and it's linked, these are very distinct. These New York cases are about Trump's business. They are in many cases about things that happened before Trump was president, and those cases are moving forward. Both the civil case by attorney general, Letitia James and the criminal case by the Manhattan district attorney

Brian Lehrer: Ilya, I was wondering after the Supreme court decision the other day saying Trump needs to turn over the subpoena documents to the January 6th committee. What about all those other people defying subpoenas to testify, Steve Bannon, house minority leader, Kevin McCarthy, Mark Meadows, who was chief of staff on January 6th, based on Trump's executive privilege claim?

Ilya Marritz: Well, I'm not a lawyer and I don't know all the ins and outs, but I should add that what the Supreme court said was that the national archives can share those materials. Not that Trump must share material that are in his possession, but actually, all these White House records that have to be handed over when there's a change of administration, they go to the national archives.

Stuff that the chief of staff, for instance, Mark Meadows, his notebooks should be with the national archives, for example, or schedules of advisors to the president. Ivanka Trump, for example, should be with the national archive. That's the material.

It's going to have to be fought out in the courts for everybody who resists and abandons the first one. I don't think his lawyers will be happy that the Supreme court didn't decline to take this up. Each case has its own specific set of interests and Bannon's assertion of executive privilege, which a lot of people thought was overreach. I don't even know if he would've been covered by that.

Brian Lehrer: Andrea, anything to add on that?

Andrea Bernstein: Well, I think what is really astounding to me about this committee is that as you know, this was not the nonpartisan 9/11 style commission, that a lot of people want, a lot of good government groups and Democrats. In fact, 35 Republican house members voted for it before it was killed in the Senate. What is astounding to me is that this is a committee that's controlled by Democrats. There are seven Democratic members plus representative Cheney and representative Kinzinger.

What is astounding to me is how much cooperation they have gotten. Last week when the committee sent its letter requesting information from former senior White House advisor, Ivanka Trump, the committee excerpted notes from an interview that it had with general Kellogg who was in the room with Trump when he was speaking to Mike Pence.

What that tells me is that they have for all of the focus on people who haven't cooperated, hundreds of people have, and they have many, many, many documents and they frankly made a lot more progress than I thought was possible when they started their select committee investigation

Brian Lehrer: Listeners, who has January 6th investigation related calls, questions for Andrea Bernstein and Ilya Marritz, now covering Trump legal cases for NPR, as well as producing a January 6th related investigative podcast for Pineapple Street Media, 212-433-WNYC. We're going to get into these fake electors. We're going to get into the Georgia case, which I find really interesting. 212-433-9692, or tweet your question @BrianLehrer.

Let's take a phone call right now. Jim in Maurice Township. You're on WNYC. Hi, Jim.

Jim: Hello? Can you hear me?

Brian Lehrer: I can hear you.

Jim: Oh, good. Yes. Are the fake electors the electors who would've been chosen if Trump had carried the states? Are they totally other persons and not the electors who would've been chosen on election day if Trump had carried the state?

Brian Lehrer: Thank you. Ilya, are you on the fake electors story enough to answer that question?

Ilya Marritz: I'm not, but I will just say that it's amazing that every week we learn a little bit more about the plans that people had in place, that Rudy Giuliani and others were putting in place to have alternate slates of electors, and we know it's something of great interest to the committee. I wouldn't be surprised if we learn a lot more in the months ahead, but I don't know if it was the specific same people that honestly the electoral college is as much of a mystery to me as it is for most Americans.

Brian Lehrer: [laughs] What's the Rudy Giuliani hook there?

Ilya Marritz: Well, just that Giuliani had been in and out of the White House so intensively in that period. A day that Andrea and I have thought a lot about in working on our podcast project was I believe it was November 7th. It was the Saturday that the election was called for Biden, and you'll remember at that very hour, Rudi Giuliani was holding a press conference at a garden center on the outskirts of Philadelphia, and one of the reporters called out a question to him. He didn't know that the election had been called and he responded very belligerently.

Maybe in that moment, it looked a little ridiculous to people who understand how elections actually work, but that really marked the beginning as far as I can tell of Giuliani's campaign to really discredit the election that had just happened in the minds of people. Mounting lots of legal challenges, talking all the time about voting machines, really shouting theories that are totally ridiculous, but because America's Mayor is saying them some people believe them.

Brian Lehrer: Andrea, anything you want to add to that? You covered Rudy Giuliani ever since he was Mayor.

Andrea Bernstein: My God, who would've thunk. [chuckles] Who would've thunk he would be in all of our lives for so long. I do know that some of the people who were to have been official Trump electors objected to being on a slate of fake electors, if you will. I don't know whether there was some overlap, but one of the interesting things that we learned when the committee sent its letter to Rudy Giuliani, which it recently did asking him for documents and testimony, was that they have sworn testimony under oath that he directed the program of trying to put together fake elector slates.

This is again a case where despite the resistance, they have witnesses, they have fact witnesses who are giving information about what people like Rudy Giuliani, Ivanka Trump and others did on January 6th and in the days leading up to it and weeks leading up to it. I think one of the things that obviously they're circling around to is exactly what Donald Trump was doing. I think that's it's where their efforts are clearly focused. What happened exactly on the 5th, on the 6th? What did he tell people? What did he order? Who did he speak to? That's what the committee says it's going for.

Brian Lehrer: Andrea, can you give us a little more of a primer on the fake electors 101? The electoral college is the electoral college, so when people hear fake electors, the first thing they may think is, "Oh, these people who are from states that Biden won were going to sneak in and aha, they're really going to vote for Trump and throw the election," but they couldn't do that. Who are the fake electors in terms of what the intent was?

Andrea Bernstein: The theory that is emerging, and evidence and documents and testimony that have been released from former Justice Department officials and others, suggests that there was a play by Trump and his allies to prepare slates of fake electors so that electors from some of the swing states could be rejected. That there could be an argument made that there were competing elector slates, therefore the whole thing would have to go to the House of Representative, and then there would be a state by state vote which at that time, January 6th, 2021 had 26 Republican states and 24 Democratic states, meaning that the Republicans could have won.

That is the theory by having these alternate slates of electors ready, they could pop them in, say there's a dispute, it can't be settled so we have to go to this alternate constitutional mechanism.

Brian Lehrer: That's not a crime, that's more of a political act of subverting faith in our democracy and our electoral system?

Andrea Bernstein: Well, we don't know. Various states have asked the justice department to look into whether this is a crime. It is conceivable that there is some kind of criminal activity there. We don't know whether the Justice Department is looking into that, but I think that the bottom line is you can't subvert an election and that certainly was attempted by some people on January 6th. The question is that we still don't know the answer to is, how high up did that go and was there an organized conspiracy?

Brian Lehrer: Let's take another phone call, Charles in Manhattan. You're on WNYC. Hi Charles?

Charles: Thank you, Brian. It's been a whole year since I've talked to you. I'd like to say that I think that Trump has a big debt with Putin at [inaudible 00:17:09] presidency he was saying, "I love Russia." He let Turkey do a number on [unintelligible 00:17:16], which Putin became a referee of after it happened, and I just think he used those people for January 6th to sent a message to Putin that he still had control. Thanks so much, that's all I wanted to say.

Brian Lehrer: Okay. Thank you very much. I don't know why he would've needed to convince Putin in particular at that point January 6th, 2020, but Ilya, I've been thinking of you recently with Ukraine in the news so much and the possible coming Russian invasion of Ukraine. You had gone on a reporting trip to Ukraine that was Trump related just before the Trump first impeachment on trying to pull those dirty tricks that had to do with Ukraine. How quickly we forget that?

Ilya Marritz: [laughs] Yes.

Brian Lehrer: Is any of that still in play? Go ahead.

Ilya Marritz: Well, yes. It's actually really stunning to watch the developments because it really feels like we have picked up in Ukrainian politics in a place that we'd left off for about a year with the new president and now we're back in that same place. When the UK foreign office released a list of, I think, four or five names of figures who they said were going to be part of a potential new Russian backed government in Ukraine. I quickly went back to the documents from the trial of Paul Manafort and I found most of those names in those documents. They were people Paul Manafort worked with, wrote speeches for, campaigned for back when Manafort who was a Trump political consultant, in his previous life had been working for Russians backed or Russian oriented political parties in Ukraine.

It seems that we are very much in that same place. I did message a couple of my fixers from when I was there in the fall of 2019, just to check the temperature with them. This was a couple weeks ago, but they both sounded skeptical about an invasion which gave me a bit of hope. I'm going to follow up with them today and see if they're still feeling the same way.

I think people there have been threatened for so long with this kind of thing that there may be people who just think it's not really going to happen in an actual active military conflict. Even with the conflicts that already exist in Ukraine, Russia already occupies quite a bit of Ukrainian territory around Donetsk and in Crimea, but I think maybe there's a sense that, that's over there, but it's hard to imagine Russian forces actually coming to [unintelligible 00:20:04]

Brian Lehrer: A few more minutes with Ilya Marritz and Andrea Bernstein who hosted the Trump, Inc. Podcast about the intersection between Trump's business interests and the public interest back when he was in office that WNYC podcasts. Now they're reporting on Trump legal affairs for NPR and producing an investigative January 6th related podcast for pineapple street media.

Andrea, I want to get to this Georgia story development from just the other day Thursday. Here's The Guardian version of the headline. Georgia prosecutor seek special grand jury into Trump's election interference. Subhead, DA Request Subpoena Power to compel testimony from witnesses, such as Brad Raffensperger who Trump asked to quote "Find 11,780 votes." I'm going to replay the famous clip because that phone call was caught on tape after the election. Trump trying to get the Georgia Secretary of State, an elected Republican to flip the results. Here it is.

Donald Trump: I just want to find 11,780 votes, which is one more than we have because we won the state.

Brian Lehrer: Andrea, what's new here. People have heard that clip for months and months and months. What's new here from Georgia about that?

Andrea Berstein: What's new is that there's now clearly, a criminal investigation that's been escalated to the grand jury stage. Typically, that only happens when a prosecutor believes that they are going to be able to prove a crime. It means that that case has moved forward. That is what happened in New York for example. When the case went to the grand jury, it was clear that the DA felt pretty confident in his case.

There is now a criminal investigation in Georgia and there's an ongoing criminal investigation in New York, which that case as everyone knows, resulted in the indictment of Trump's chief financial officer, Allen Weisselberg and two Trump entities and that is an ongoing investigation. Both the New York attorney general who's involved in that investigation and the Manhattan DA have made clear that there may be more indictments coming in the New York case. The criminal problems are mounting.

What is so interesting about the Georgia case is obviously, meanwhile it's not directly January 6th. It is related to the former president's well-documented attempts to thwart the will of the voters and to change the outcome of the election through whatever way he could.

One of the things that we've learned over the course of the last year through depositions that have been given by former justice department officials is the extent to which the former president said, "Okay, I want you to investigate fraud in Georgia." At first, you may remember the former attorney general Bill Barr, infamously said, "Okay. We'll investigate the fraud." His thinking as articulated to his colleagues was that we won't find the fraud and then it'll go away.

Obviously that did not happen. They didn't find the fraud and Trump kept going to more and more people saying, "Look for fraud, look for fraud, look for fraud." When it was repeatedly not found, that's what led to this phone call. Just find those votes because you and I both know that that was actually the outcome and that is essentially what the former president said.

Brian Lehrer: That may wind up being a crime in Georgia, or it may not. We'll see what the grand jury says and whether an actual indictment comes down from that. I did read in that Guardian article that secretary of state Raffensperger there said he would not testify in this case without a subpoena so that's the power that a grand jury has to possibly get Brad Raffesperger on the legal record.

All right. One more call. Andy in Westchester, you're on WNYC with Andrea Bernstein. Ilya had to go catch a flight at Newark Airport. Hi Andy.

Andy: Hi. As much as I'd like to see Trump get what's coming for him. If you talk to people in New York real estate, they'll say that he could have been prosecuted decades ago for various things. I'm just worried that it may, in some way strengthen him if he's seen as being a martyr [unintelligible 00:24:53] His movement has already been making martyrs out of people like Ashli Babbitt and et cetera.

I'm just wondering if that inhibits, well, what effect that has on the people that are trying to investigate them, and whether they worry about how they're proceeding and trying not to make it backfire, I guess.

Brian Lehrer: Andy, thank you. Important question, Andrea. We've got about a minute left.

Andrea Berstein: I think a couple of things on that, first of all, the answer that they've given when I've put them directly and Ilya, and I actually spoke with the former Manhattan DA Cy Vance before he left office, was that, that is just not part of his thinking. I am going to take them at their word because what are you going to do?

Brian Lehrer: You're not supposed to charge somebody or not charge somebody based on political considerations.

Andrea Berstein: Exactly. I just don't see any sign that, that is actually there in this case, and to the caller's question about he could have been indicted years ago, I would say the following and something that I wrote a lot about in my book that Trump assiduously courted law enforcement in New York. Going back to when his family business was basically in Brooklyn and the Brooklyn DA and the Manhattan DA and controlling the levers of power and giving to the favorite charity of the former Manhattan DA Bob Morgenthau.

Now Bob Morgenthau's associate said that didn't have any effect on anything, but it was a very conscious thing by Trump that he gave money, that he showed up when they needed him to show up, that he invited people to his wedding, to daughter's wedding and that they came and that he really assertive these things that are alleged were alleged to have been happening for a long time.

The current indictment in Manhattan, going back to 2000, going back 15 years, 16 years, these widespread crime fraud scheme is alleged to have gone on. I think that it is true that Trump really thought about Manhattan and he's still thinking about the Manhattan cases. If you look at all of the legal actions against him, the place where Trump is really spending money on really serious well-respected lawyers in their fields are these criminal cases and civil cases in New York, which tells you something about their importance to him and the way they're concerning him.

Brian Lehrer: Even though they're not January 6th related, which they're not, right?

Andrea Berstein: They are not. These New York cases are related to his business model and the allegation in Manhattan is that there was a widespread fraud scheme going on that Donald Trump's company, his autonomous company was cheating the US government while he was heading that government. The scheme is alleged to have gone on up until June of 2021 so that is what he is being charged with, or excuse me, that is what his company is being charged with. He himself has not been charged and both his CFO and his corporate entities have pleaded not guilty.

Brian Lehrer: Andrea Bernstein, who besides reporting on Trump legal affairs for NPR and working on a new January 6th related podcast with Ilya Marritz is the author of the book, American Oligarchs: The Kushner, The Trumps, and The marriage of money and power. Andrea, Thanks a lot. Great to have you back.

Andrea Berstein: It's great to speak with you, Brian.

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