Officer Harry Dunn: One of the scariest things about January 6th, is that the people that were there even to this day think that they were right. They think that they were right and that makes for a scary recipe for the future of this country.

Brian: It's The Brian Lehrer Show on WNYC. That was Officer Harry Dunn testifying yesterday before the house select committee investigating the January 6th insurrection at the Capitol. We'll play a few clips from that testimony that you may not have heard yet because they're not the ones most being repeated in news coverage. We'll talk about the new guidance from the House of Representatives attending physician, for members to start wearing masks in the people's house again because of the Delta variant, the January 6th, the Delta variant and the insufficient vaccination rates. We'll talk about the political reaction to that too.

Here's a clip, not from yesterday's hearing, but from January 6th itself, that's prompting yet another legal response. The Justice Department issued an opinion yesterday that Republican Congressman Mo Brooks of Alabama can be sued for inciting the riot because of a speech he gave at the rally leading up to the attack, that seemed to call for the violence that followed. Here's one minute from that speech. Again, this is Alabama Congressman Mo Brooks addressing the crowd on January 6th.

Mo Brooks: As such today is important in another way. Today is the day American Patriots start taking down names and kicking ass.

[crowd cheering]

Now our ancestors sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives to give us, their descendants, an America that is the greatest nation in world history. I have a question for you. Are you willing to do the same?

[crowd cheering]

My answer is yes. Louder, are you willing to do what it takes to fight for America?

[crowd cheering]

Louder, will you fight for America?

[crowd cheering]

Brian: Republican Congressman, Mo Brooks of Alabama addressing a crowd on January 6th and fight they did. Brooks is now being sued by Democratic Congressman, Eric Swalwell of California for inciting the violence.

Did statements like that by Mo Brooks that riled up the crowd lead to moments like this described in the hearing yesterday by Officer Daniel Hodges? Hodges has been physically attacked. He said poked in the eye, sprayed by wasp spray, had his police radio stolen, so he was isolated, all while people were shouting slogans at him. He testified that one guy shouted, "Four more years."

Officer Daniel Hodges: Another shouted, "Do not attack us, we're not Black Lives Matter," as if political affiliation is how it determined when to use force. A man in a queue and non-hoodie exclaims, "This is the time to choose which side of history to be on." A man whose shirt read, "God guns and Trump," stood behind him silently holding a Trump flag. A new man came to the front and fixated on me continually berating me, telling me to take off my gear and give it to him to show solidarity with we the people or, "We're going to run over you." His voice cracked with the strain and the volume of his threats. He continued, "Do you think your little pea shooter guns are going to stop this crowd? No, we're going in that building."

Brian: Officer Daniel Hodges yesterday at the committee hearing. We've got more clips to play too, but could Congressman Mo Brooks and others be held legally responsible for things like that? Joining us now is Washington Post correspondent, Jacquelyn Allegheny, who writes their daily newsletter called Power Up, and also has an article today on reaction to the hearing and Washington Post reporter Devlin Barrett, who focuses on national security and law enforcement. He wrote up the Mo Brooks and Justice Department piece of this today. He's the author of the book October Surprise: How the FBI Tried to Save Itself and Crashed an Election, that book published last year.

Jacqueline and Devlin, welcome back to WNYC. Thanks so much for coming on today.

Jacquelyn Allegheny: Morning Brian.

Devlin Barrett: Hi Brian. Thanks for having me.

Brian: Devlin, can we start with Mo Brooks? Why is one member of Congress being sued by another California Democrat Eric Swalwell, over January 6th?

Devlin Barrett: Swalwell filed suit against Mo Brooks and three of the other speakers at that rally on January 6th, President Trump himself, Donald Trump Jr and Rudy Giuliani. Now in Brooks' case it's a little complicated because the law is very protective of members of Congress and their public statements. The law very broadly protects lawmakers from being sued over those statements. In a pretty remarkable filing late last night, the Justice Department said Brooks can't be protected by that law because the law cannot protect inciting or conspiring to foment an attack on the United States Congress.

Brian: That's a civil lawsuit, not a criminal case. What is Swalwell suing for? Some damages paid to somebody or what exactly?

Devlin Barrett: He's suing for damages on a number of legal friends. One is just classic tort law, i.e suing for money. He's also claiming that the people he's suing conspired to violate folks civil rights, which gives him another legal line of attack on this. This is all very, I think it's safe to say, unusual litigation, a member of Congress suing another member and a former president. That is the moment we are in. When it comes to January 6th, there are decisions that have to be made on circumstances that we've just never seen before.

Brian: The Justice Department opinion yesterday that Brooks could be sued, this was an opinion submitted to the judge in the case, was that Brooks is not exempt as a member of Congress from being sued. What's the issue there?

Devlin Barrett: The issue is that traditionally and most of the time, elected officials up to and including the president are protected for most lawsuits, particularly for things like defamation when it comes to their public statements. The classic example that folks point to is in one instance, this was years ago, a lawmaker was asked why he was getting a divorce and the lawmaker blamed a nearby mosque that he claimed had driven his wife crazy. There was a lawsuit over that statement. What the courts found was that almost anything a lawmaker says can be considered part of his job as a member of Congress. Therefore, that that is protected they cannot be sued over that.

What's really remarkable, I think, about what the Justice Department is saying is that they're really drawing a line in the sand and saying some things that people say are just so beyond the pale, that they can't be protected and Mo Brooks comments, they decide are over that line. A judge still has to decide, the Justice Department is not the last word on this, but it's obviously an important development.

Brian: It's the Biden Justice Department's position in this case that Brooks could be sued. The Justice Department argument is pretty blunt. Jacqueline, I'll turn to you as somebody who watches Congress, your reaction on this, the Justice Department said in this legal brief, "Inciting or conspiring to foment a violent attack on the United States Congress, is not within the scope of employment of a representative." I'm going to read that again because it would be hilarious that that would have to be said out loud if it wasn't so serious. "Inciting or conspiring to foment a violent attack on the United States Congress, is not within the scope of employment of a representative." Do you think that's a matter of debate within the United States Congress now?

Jacquelyn Allegheny: It's only not a matter of debate because there are still Republicans who are denying that violence and denying their roles and even contributing to fomenting any of the violence occurred on January 6th, even after there's the tearful testimony from four police officers yesterday. Republicans still denied and downplayed the severity of the insurrection and the attack by hundreds of pro-Trump rioters throughout the day. You had Andrew Clyde get into almost a verbal altercation with Congressman Jamie Raskin by continuing to contend that the insurrectionists were akin to a group of tourists.

Yes, that's a shocking read and shocking that the Justice Department feels the need to put that down on paper, but not surprising in any way, considering the GOP reaction that we saw yesterday in the wake of the first select committee hearing.

Brian: Listeners, how about your reactions to or questions about yesterday's January 6th committee hearing, the lawsuit against congressman Mo Brooks and other means of accountability for those involved or for that matter, Congress being asked to go back to indoor mask-wearing because of the Delta variant and insufficient vaccination rates. We'll get to that 646-435-7280, 646-435-7280, if you

want to weigh in or ask a question or you can tweet @brianlehrer, we'll let our Twitter feed go by and see if there's something there worth repeating on the air.

The clip we played from yesterday's testimony, of officer Hodges touched on another of the themes from the testimony, besides how much he was being attacked and what kind of flags and slogans there were, the white nationalist consciousness of many of the insurrectionists. We heard Hodges quote one of them saying, "Don't shoot us, we are not Black Lives Matter." That was in that clip. He said, "As if political affiliation would determine when he would use force. Then there was this moment of testimony by Officer Aquilino Gonell, who happens to be Dominican American and a US military veteran, before he became a police officer. Officer Gonell testified about having his presence questioned by a member of the crowd saying, "You're not even an American."

Aquilino Gonell: Apparently, they seen even through my mask, they saw my skin color and said, "You're not even an American." Regardless, whether I was in the military, they don't know that, but they yelling and saying all these things to me. When I heard that, I wasn't even thinking about any racial stuff, I'd be like, "Okay, you don't know that for a fact, I'm not even entertaining that."

Brian: There was that Officer Gonell and back to officer Hodges, who's white. He testified that he thought the crowd was staging a white nationalist insurrection and California Congressman Pete Aguilar asked him a follow-up question.

Pete Aguilar: Officer Hodges, you characterize the attack on the Capitol as white nationalist insurrection. Can you describe what you saw that led you to label the attack that way?

Officer Daniel Hodges: The crowd was overwhelmingly white males, usually a bit older, middle-aged, older, but some younger. I think out of the entire time I was there, I saw just two women and two Asian males. Everyone else was white males. They didn't say anything especially xenophobic to me, but to my Black colleague and anyone who's not white and some of them would try to recruit me. One of them came up to me and said, "Are you my brother?" There are many, many known organizations with ties to white supremacy, who had a presence there, like Three Percenters, Oath keepers, that kind of thing. People who associated with Donald Trump are far more likely to subscribe to that kind of belief system.

Brian: Officer Daniel Hodges, from yesterday's testimony. There was also the disturbing collection of stories told by officer Harry Dunn that we've aired multiple times on the station already, describing multiple incidents of police officers who are Black being called the N-word on January 6th.

Washington Post correspondent, Jacqueline Alemany, you reported on another moment that I don't have tape of when Congresswoman Liz Cheney asked officer Gonell, the Dominican American officer, whose clip we just played, how it made him feel that Donald Trump described the insurrectionists as a loving crowd. Do you know the context of that? When did Trump say that?

Jacqueline Alemany: That was actually in this scramble and the hours right when the insurrection had started and there were aides and people around former President Trump, who were rushing in and out of the Oval Office and trying to apply pressure on him as he watched the coverage play out on cable news to issue a formal statement, stopping the violence and telling the insurrectionists to call it off, either via Twitter or White House statement. There were several statements put out by him over the course of the day.

I can't remember the exact ordering off the top of my head, but a number of them were very sympathetic to the rioters and continued to encourage them and did not accomplish that goal of condemning and asking them to stop the violence, which was counter to the message that we had heard from him for months by that point.

He had been talking about the Stop the Steal rally and encouraging these people to travel across the country to storm the Capitol and really since he lost the election, started propagating false claims of election fraud and trying to discredit, at that point, President-Elect Joe Biden's electoral victory.

You heard Gonell say that really discredit and express hurt and anger at the former president's statements, making the point that if these were loving people, if there were hugs and kisses, then they should go bring that to the former president's house, who then later clarified, though, that he wasn't actually encouraging people to go to the house. Just trying to go to the former president's house and trying to make the point that this was not loving by any means. The President only put out a more stern rebuke of what was going on, after hours of being coaxed by those around him, who were able to convey to him in some regard that what was going on was very serious.

We've even seen in interviews in the aftermath recently with my colleagues, Carolyn [unintelligible 00:16:58] and Phil Rucker that the President has still sympathized with these people who committed violent crimes at our nation's Capitol.

Brian: Let's take a phone call. Here's Chris in Holly Pennsylvania, Chris, you're on WNYC with Devlin Barrett and Jacqueline Alemany from the Washington Post. Thanks for calling in.

Chris: Good morning, Brian. Good morning, everyone. Just a quick one here, the Republicans right now who are claiming that this was a party and loving arms and it was not violent, why didn't they come out and join the party or were they hiding under their desk with everyone else?

Brian: Jacqueline Alemany, want to take that?

Jacqueline Alemany: I'm sorry, I think I missed the beginning of your question.

Brian: Go ahead, you can say it again, Chris. Go ahead.

Chris: What I'm hearing is that from some of these, like the Mo Brooks and different people who are saying now that it was a party, they were well-wishers, it was

tourists, they were there with open arms, these particular people who are now downplaying the whole thing, did they come out and join the party or were they hiding under their desks in fear of their lives?

Brian: Right. That's a great point and question. Actually, Devlin, let me throw that to you since you're covering in part that the lawsuit against Mo Brooks for allegedly helping to incite the riot. Do you happen to know if he went back to his desk, in the House of Representatives before the riot really started and then was made to cower under his desk?

Devlin Barrett: I can't tell you whether he specifically cowered under his desk, I can tell you that the Republican lawmakers all assembled in Congress because they had a job to do, there was a vote to do. Some of the people who have now come forward to minimize what happened or to varying degrees, excuse it as not that threatening, were themselves hustled off the floor or hiding behind an armed security officer with his gun drawn, as we've seen in some of the videos and images.

It is absolutely true that many of the people who now argue that there wasn't much of a threat, that this wasn't a big deal were, in fact, hustled out of space, protected by men with guns drawn and were in fact, in a degree of danger during that day.

One of the things that I think is really telling about the politics of January 6th, is that if you think back right after the attack, there were a number of Republicans including senior Republicans who actually did criticize the president and did criticize what happened. What you saw in the polling is that much of the Republican base was not with them on that point. I think what you saw over the, let's say the first two months after that, is that a number of Republican politicians who stepped forward and criticize what happened on January 6th, decided to essentially stop doing that. Either went silent or went into the minimization model that you've seen from a lot of these other lawmakers.

I think that's because that's where a lot of the base of the party is and that speaks, I think, to a lot of the points that the officers made at the hearing yesterday, that there is still a problem here and that some basic facts about what happened are still being denied by a lot of people.

Brian: Go ahead Jacqueline, go ahead.

Jacqueline Alemany: It reminds me of this amazing photo that Tom Williams, a photographer for a role called dredged up after Clyde compared the writers to a group of tourists. It shows Clyde along with a handful of other members and police officers barricading the house chamber door as writers tried to disrupt the joint session of Congress to certify the electoral college victory. Clyde looks frazzled and frantic as the whole room is trying to keep these people out of the room.

The photos tell a traumatically different story as do the videos, which is why we've seen the lawmakers in this select committee, continue to replay those for the American public.

Brain: Craig in Westchester, you're on WNYC. Hey Craig, thanks for calling in.

Craig: Hi Brian, thank you so much for covering this important topic. I do have a question for you and your guests. It's about the lawsuit against Mo Brooks and Trump and his associates. Is there a legal advantage or appropriateness to take into account statements earlier that Mo Brooks and Trump both made? For example, Mo Brooks in 2014 on national television said that there's a war on whites. He obviously is very interested in somehow defending himself in this war that he's talking about on national television.

Likewise, Trump, of course, several years later said that the proud boys should stand by on national television. Is there a legal way to bring this into understand the larger context of what happened on January 6th in the attack? Thank you.

Brian: Thank you very much. Devlin Barrett, for you who covers the Justice Department, do you know the answer to that question?

Devlin Barrett: Yes and it's a great question and it's an important point as we talk about what happened on January 6th. Under the law, what matters most, in terms of statements are proximity and time and place to the events at issue. I'm not saying that comments made in earlier years are completely irrelevant. I'm saying that under the law, what matters most are the statements made closest to the events of January 6th. That means, obviously, the statements made at the rally, just before the riot and the statements made in the days leading up. The further away you get from January 6th under the law, the less meaningful any statements are to the question of responsibility.

I think when they talk about these statements, when they talk about older statements that may offer some evidence of state of mind, but it's not going to be nearly as critical as what was said that day or in the days immediately before.

Brian: The hearing happened yesterday and afterwards, Jacquelyn, you reported that house Republican leader, Kevin McCarthy said he didn't watch it. There seemed to be a general lack of interest on the part of house Republicans. Why was that?

Jacqueline Alemany: I think it's for a number of reasons. One, I think that house Republicans realize that they're in a politically perilous situation right now. They don't necessarily want to have to defend the former president and the party's reaction as of late to the insurrection that happened on January 6th. They also don't want to be in the position of having to attack law enforcement. This is after all the party of "Law enforcement." I think it serves them better to feign ignorance and to try to tune it out, than to have to react and potentially attack some of the testimony given by four police officers who risked their lives that day to save everyone in that building.

You did have some Republicans like Rodney Davis and Kelly Armstrong, actually two of the Republicans, who were initially handpicked by minority leader, Kevin McCarthy, to serve on the select committee, who said that they were able to actually catch snippets of the testimony and did worse among the only Republicans to publicly sympathize with those police officers saying that they deserved the opportunity to tell their stories, that it was cathartic. Most of the response

immediately pivoted back to calling the investigation a sham and trying to discredit Democrats and their investigative mission.

Most of the reactions that we heard from House Republicans after the hearing broke up and members went to their votes, was basically that the hearing accomplished nothing, even though they didn't watch it. That key security, key questions of security that are still lingering like why there was a lapse, why police officers were so ill-prepared, why the federal government was so ill-prepared that those have yet to be answered.

Brain: That Republican indifference drew one of the most emotional moments of the hearing from one of the Capitol police officers who was injured, Michael Phenom.

Michael Fenone: The indifference shown to my colleagues is disgraceful. My law enforcement career prepared me to cope with some of the aspects of this experience. Being an officer you know your life is at risk whenever you walk out the door, even if you don't expect otherwise law abiding citizens to take up arms against you, but nothing, truly nothing has prepared me to address those elected members of our government who continue to deny the events of that day and in doing so, betray their oath of office.

Brian: Jacqueline, having heard that testimony and others like it, from in this case, Officer Fenone describing his injuries, including in his case, a brain injury and being knocked unconscious for around four minutes. Of course, we know not everyone even got out alive, doesn't that testimony by members of law enforcement put the law and order party on the spot, in a way that downplaying it or leader McCarthy saying he didn't even watch, wouldn't go over well with their constituents?

Jacqueline Alemany: Yes and I think that's something that minority leader McCarthy is really grappling with right now. There is, perhaps, the loudest constituency in his conference right now are the Marjorie Taylor Greene, Matt Gates and Paul Gosars of the world who are pedaling disinformation and an alternative reality to what the events that actually happened on that day. That's why I think you've seen attempts at counter-programming by McCarthy and leadership that proceeded the hearing yesterday.

The loudest voices continue to propagate and downplay the severity of the events that happened on January 6th. I think that one of the things that GOP leadership didn't potentially anticipate from the decision to pull back the Republican members from participating in the select committee, was that they were also going to be losing their megaphone and the opportunity to influence any messaging to be there in the spotlight to ask their questions and to, at least, if they did have any interest in answering some key security questions to display some of that interest in the hearing setting.

Now, they're struggling from the sidelines to get through and have left the messaging up to the police officers and Democrats. It's not even fair for me to say that, messaging the police officers who told their stories and their truth and want those who have downplayed the events of that day to recognize that Republicans have

said that they're going to conduct a parallel investigation into January 6th, but so far the detail of that have been very vague and Minority Leader McCarthy told us yesterday that he'd keep us updated, but that was still the plan.

Brian: Jacqueline, we did already know that it was violent on January 6th, everybody knew that. Did you learn, Devlin, I'll ask you too, did either of you learn anything factually new as reporters yesterday or was this all putting these human faces of law enforcement personnel and their sufferings in front of the American public as individual human beings?

Devlin Barrett: I'll say I didn't learn anything new factually about the attack. I think the attack, which is actually if you think about it, a lot of very small attacks, at the same time, more or less, is horrific. You can see that in the videos and you can hear it in their voices. Obviously, these officers are still struggling mightily with what they endured and the way other people talk about it and downplay it. To me, that was the most important moment and issue of yesterday's hearing, which is that it is both difficult for them to have gone through that trauma and it is extra difficult to listen to other people say it wasn't that bad or they weren't really hurt or they're crisis actors or whatever other thing gets thrown out there.

That is a real rift and a real pain. I think putting that pain on display, certainly is meant as pushback to a lot of the minimization that goes on on the other side, but the other side isn't listening to that. I think that's part of the challenge in all this is, as Jackie has reported and others have said, the other side is tuning all this out as best they can. There are essentially two very different conversations going on at all times and that is a political problem for the country.

Brian: Jacqueline, anything new yesterday? If there was nothing new, then does a backup the Republicans argument that this is all about politics and keeping the outrage burning against the republicans?

Jacqueline Alemany: Yes, Brian, I do completely agree with everything Devlin said. The point of the hearing yesterday wasn't necessarily to establish anything new, it was to set the table and try to combat some of the disinformation that we've been seeing, have these police officers tell their story and get some buy-in from the American public for why this investigation and actually answering those unanswered questions and breaking new ground is necessary. I think the police officers were able to convey and make the plea for why lawmakers need to take this more seriously and address some deeper lingering issues better than any lawmaker could have, in a more nonpartisan way.

You had people who were tweeting character testimony of some of the police officers yesterday, a friend of officer for known remarking that he is a conservative guy. This has nothing to do with politics. It is about being seen and heard and again, puncturing this warped reality that Republicans have tried to project in order to deflect any blame and not hold their supporters to account.

Brian: In less 30 seconds, what comes next yesterday was only day one of this

committee's work?

Jacqueline Alemany: What comes next is really a scramble, Democrats on the committee have said they're trying to get this done as quickly as possible. We're going to see subpoenas issued by the end of August or first week of September. Whether or not those who are subpoenaed will comply with those is a different story. It could really spark some extended litigation. There's also going to be more witnesses called, but right now, what Chairman Thompson has told us is he's going to give the staff the opportunity to catch up and get their bearings. Then while members are out on recess for a few weeks, which might potentially be cut short to come back here early, they're going to collect all the necessary pieces, identify those evidentiary gaps and see what outstanding document requests still exist. Two also needs to be talked to from financiers, people who funded those who traveled to the Capitol that day, to the hundreds of indictments that have already been released by the Justice Department to potentially subpoenaing people like former President Trump, members of Congress, really anyone involved with the events of the day it is a broad scope, lawmakers have made that much clear.

Brian: All right, we didn't get to the attending physician of the House of Representatives saying there should be mask-wearing again in the House because of the Delta variant and other things that are going on, we'll get to that in a later segment. We thank Jacqueline Alemany, Washington Post correspondent, who also writes their daily newsletter called Power-up, and Devlin Barrett, Washington Post correspondent focusing on national security and law enforcement and author of the book October Surprise: How the FBI Tried to Save Itself and Crashed an Election. Thank you both so much.

Jacqueline Alemany: Thanks so much, Brian.

Devlin Barrett: Thanks.

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