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Brigid Bergin: It's the Brian Lehrer Show on WNYC. I'm Brigid Bergin from the WNYC and Gothamist newsroom filling in for Brian Lehrer who is off today. On today's show, we're going to check in on Mayor Adams. He's been in office for about eight months now, how is he doing, plus why some consumer advocates are concerned about the buy now pay later financing option you may be seeing when you're shopping online? We'll talk about how a movement is brewing to research the use of psychedelics to treat post-traumatic stress disorder in veterans.

First, we turn to the news that the department of justice is investigating former President Donald Trump's actions on the morning of January 6th. On Wednesday, The Washington Post broke the story that the DOJ moved to bring two top aids to former Vice President, Mike Pence in front of a federal grand jury. While the DOJ has declined to comment on the pending investigation, the two aids called in front of the grand jury, Pence's former Chief of Staff, Marc Short, and lawyer Greg Jacob, had publicly testified in front of the January 6th committee's televised hearings previously. Potentially offering clues about what the DOJ is looking at.

CNN reports the move is the most aggressive public step taken yet by prosecutors investigating the plots to subvert the 2020 election. Joining me now to discuss the latest is Devlin Barrett, a reporter focusing on national security and law enforcement for The Washington Post, Devlin, welcome back to WNYC.

Devlin Barrett: Hi, Brigid. Thanks for having me.

Brigid: Devlin, you and your colleagues broke this huge story that the DOJ is looking at Trump's pressure campaign on Pence to overturn the election and, "What instructions Trump gave his lawyers and advisors about big electors and sending electors back to the states." We've been hearing about this during the past eight public January 6th committee hearings. How big a deal is this news?

Devlin: I think it's a big deal for a couple of reasons. One, the simple fact that the investigation has, as we've reported, moved into Trump's inner circle and has been looking at that activity for a period we now know of months. That in itself is important. Two, I think it's important because it fits into a larger public and political conversation about, for lack of a better term, what to do about January 6th. Are we taking it seriously enough? Is there going to be accountability? Obviously, there were some questions publicly about whether the DOJ, or whether justice department was being aggressive enough. I think these new details show that they have actually been doing far more than we previously understood.

Brigid: You reported that the DOJ has called both Vice President Pence's former Chief of Staff, Marc Short, and Lawyer, Greg Jacob, before a grand jury in downtown Washington recently, both Short and Jacob have testified before the January 6th committee publicly. We're going to get to that in just a second, but can you talk about why these two aids, in particular, signal an acceleration of the DOJ's probe?

Devlin: For one thing, you can see the prosecutors are putting former White House staffers and certainly, Short would be considered a senior staffer in the White House, into the grand jury. That's an important step. We haven't seen that until last week, really. The second reason why it's important is as we describe in the story, the prosecutors have to understand at a minimum, as they look at this issue of the scheme to try to generate fake electors to somehow undo Biden's victory, at a minimum, they have to understand what Trump's instructions were to his lawyers and other advocates who were working on this scheme.

That doesn't necessarily mean that he's a target. I would not describe him as a target of the investigation right now, but I do think it's important to understand that the investigators need to know what did Trump tell his own people to do. Obviously, that's a big step in any investigation.

Brigid: You've alluded to this, but just to put a really fine point on it, do we have any sense that the justice department has opened an investigation into Trump himself, or is this really just broadly looking into his conduct on the morning of January 6th?

Devlin: I think it's more about looking into the conduct and understanding the conduct. I think the comparison I would use is actually go back five years to the moment right after when then FBI Director, Comey, was fired by Trump. Within days of that event, the FBI had opened a case on the President himself for obstruction of justice to see if he had committed that crime. That's not what this is. This is as they investigate the fake elector scheme, all these efforts to try to prevent Biden from becoming president after winning the election, they need to understand what was Trump telling people to do. Perhaps those answers are not incriminating or perhaps, they are, but they need to know the answer to that question.

Brigid: Sure. Citing two anonymous sources. You wrote, "There are two principle tracks of the investigation that could ultimately lead to additional scrutiny of Trump, and the first centers on seditious conspiracy and conspiracy to obstruct a government proceeding." Can you explain further in how we've seen those charges used so far in this DOJ investigation?

Devlin: Sure. More than a 840 people have already been charged in relation to the riot on January 6th. A significant number of those people have been charged with either obstruction of a government proceeding, which is basically trying to stop Congress from confirming Biden's victory, and the highest charge that's landed on some of those folks, particularly the extremist group members, are allegations of Seditious conspiracy, which is a very rarely used charge, a pretty serious charge.

When I say that there's an investigative track there, what I mean is investigators and prosecutors have obviously been working up from the riot to see what is the total universe of people who wanted and tried to make their Vchaos on that day to essentially scare or stop the lawmakers from. There is, of course, a theory that some have advocated and some of Trump's biggest critics have argued that Trump set those events in motion. That's one prong of the investigation. That's what I mean by there's a family of charges around the riot that are basically versions of conspiracy and that's one thing that, at least, in theory, could lead to people close to Trump.

Brigid: Listeners. We can take a few questions for our guest Devlin Barrett from The Washington Post. You can tweet @Brian Lehrer or give us a call at 212-433-WNYC that's 212-433-9692. Devlin, as I mentioned in the intro, we don't know what Greg Jacob, the former lawyer for Pence has told the DOJ, but we do know what he said at his testimony in front of the January 6th committee on June 16th.

That brings us to the second track of the DOJ investigation, the false elector scheme, and the attempt to pressure Pence to say the election was rigged. Here's a longer clip of about a minute of what he told the committee about his interaction with Trump's election attorney, John Eastman.

Greg Jacob: Later that evening, Mr. Eastman emailed me to point out that in his view, the vice president's speech to the nation violated the Electoral Count Act. That the Electoral Count Act had been violated because the debate on Arizona had not been completed in two hours. Of course, it couldn't be since there was an intervening riot of several hours and that the speeches that the majority and minority leaders had been allowed to make also violated the Electoral Count Act because they hadn't been counted against the debate time.

Then he implored me now that we have established that the Electoral Count Act isn't so sacrosanct, as you have made it out to be, I implore you one last time, can the vice president please do what we've been asking him to do these last two days, suspend the joint session, send it back to the states.

Brigid: There's a lot to him back there, but can you refresh our memories as to why Trump's lawyer was pushing Pence's lawyers to reject the electors and what the Electoral Count Act had to do with all of this?

Devlin: The electoral account act is basically just the mechanism by which you confirm the electoral college results, and it was never meant to be. I think almost all lawyers would agree that it was never meant to be some mechanism by which the sitting vice president could just decide on his own who the next president should be. That makes sense. Like, why on earth would you hold an election if, after every election, the person who happened to be the vice president just gets to decide who should be the president? Particularly, since it's often the vice president who was running.

Just to use a historical example, imagine if Al Gore had decided as vice president in 2000, that he would just, "Well, no, now I think I'm the president." It doesn't make sense legally, and it doesn't make sense practically, but what John Eastman, this lawyer was arguing was that that's what Pence and other Republicans should do. What Greg Jacob was describing in that conversation is the degree to which he had said, "No, that's absurd, you can't do that."

Even after the riot, according to him, John Eastman is still saying, "Well, look, now, you've had a riot, you've clearly violated some of the provisions of the ECA, therefore, Pence should side with Trump, and do what Trump wants them to do." It's an amazing moment in part because the sheer human interaction of it is crazy, when you think about how Pence is basically sheltering in place for his own safety and seems to be in genuine danger, and Trump's advocates are even then basically saying, "Look, you should just do what we want you to do. This doesn't have to get any worse." That's very dark. I think most people would agree that that's an incredibly grim exchange.

Brigid: Absolutely. I want to take one of our callers. John, in Plainview, New Jersey. John, welcome to WNYC. Oops, excuse me. [crosstalk].

John: Yes, that's okay. Hi. My question is it's quite overt with Trump throughout his public life as a businessman, and in politics, how he has threatened people overtly and covertly. I'm considering Lindsey Graham early on, suddenly changing and all those people who were in the primaries with him, suddenly changing and supporting him. Has anyone ever been asked in any of these inquiries whether Trump has directly or indirectly threatened them with compromise that he could hold over their heads, or physically? It's just something that I don't remember having or hearing at all.

Brigid: Devlin, do you know more about that?

Devlin: I would say, nothing springs to my mind in terms of threatening anyone physically. I don't cover him, especially for a living, I cover law enforcement, but I've never come across an account in which he threatened someone physically. I will say that one of his moves, when he's in conflict with another person, whether it's someone like an FBI official or another politician is that he will often say to them some version of, "This could get very bad for you if you keep not doing what I want. I can accuse you of all sorts of things," and people will believe it. I'm obviously paraphrasing that, that's not a direct quote by any means.

I do think one of the ways in which he tries to get what he wants from time to time is he will basically tell someone, "I'm going to go after you publicly, and I'm going to accuse you of things, and people are going to believe my accusations. You should do what I want you to do." I think that that strategy, that tactic, meets with varying degrees of success, but it is interesting, I think, the degree to which a lot of Trump's conflicts play out very publicly in the sense that he likes to criticize and accuse people of wrongdoing. He often does that after those people in his mind have crossed him or are not doing what he wants them to do.

Brigid: I'm speaking with The Washington Post's, Devlin Barrett, about the latest in the investigation into 2020 election interference and the aftermath. Listeners, we can take a few questions for our guests. You can give us a call at 212-433-WNYC. That's 212-433-9692, or you can tweet @BrianLehrer. To kick things off, let's go to Allen in Brooklyn. Allen, welcome to WNYC.

Allen: Good morning. Thanks very much. I'm just wondering since the early stages of this in 2021, it seems obvious to a lot of people that the 14th Amendment, Section 3, allowed a person engaged in insurrection to be declared as such by Congress by simple majority vote without a criminal conviction, without impeachment. If they found by such a vote, the person would not sit to serve again in elective office, they were barred unless the bar was then lifted by the Congress by some supermajority. I forget whether it was a two-thirds or three-fifths majority, but the initial vote to declare them ineligible, I believe is a simple majority without impeachment, without criminal conviction.

Why do you believe it's so seldom discussed that way? Is it that people are afraid of the Supreme Court establishing a precedent that reads it entirely wrong and locks in a bad interpretation for all time, or is it some other reason?

Devlin: That's a good question. I think it's almost more of a history and congressional practice question. I guess my stab at answering it would be this: that is not something that has been used very much in probably the entire existence of the 14th Amendment. One of the things that I think is difficult about a lot of what happened on January 6 is you are asking institutions to do things that they are not accustomed to doing. In the case of the Justice Department and the FBI, there are questions about elected political officials and whether they sought to essentially blow up democratic results. When I say, "Democratic results," I mean the results of a democratic election. That's not something that these institutions have a ton of experience dealing with.

I think that part of the 14th Amendment was originally designed. I don't want to speculate too much, because I'm not a historian, but I have always read that part of the amendment to be designed to push former Confederates from the Confederate States back into accepting the basic premise of the Union. I don't know that it was envisioned to ever be used for something like January 6, I'm not saying it shouldn't or couldn't be used for that, but I think some of this stuff is definitely uncharted territory. To the question, why had someone pursued that? I think that's the main reason.

The other thing I would just note is that people have filed a few lawsuits in various places to try to get the courts to declare this or that person, particularly lawmakers, participated in the insurrection, and those suits have failed, as far as I know. I don't think there is a lot of buy-in from the legal community, that that would be a particularly compelling or effective argument or strategy.

Brigid: Allen, thank you so much for that question. Let's bring in one more caller. Vicki in Tudor City, you have a question about Trump's rhetoric.

Vicki: Yes. Good morning. Thank you. I was wondering what the journalist, what his thoughts are on the fact that Trump never says anything directly, all of his thoughts are intimated or you just infer what he's trying to say, you can see it in his speeches. The point being that we're trying to determine if he directly gave attorneys or politicians orders, so to speak, to delay the election results, et cetera. He [unintelligible 00:18:32] like a mob boss. He never says anything directly to anyone. How can we pin him on that?

Devlin: That's a great question. Actually, when we were putting the story together, I thought about that a lot because many years ago, I covered a trial of a former WorldCom CEO, and it was a fraud trial. That guy, Bernie Ebbers, was convicted and sentenced to prison for a very long time because he uttered three words, essentially. The words were, I believe, if I remember correctly, "If the number." The three words were enough to convict that CEO and send them to prison for a very long time.

I think with Trump, in some ways, the legal challenge is actually quite different because he talks constantly, and he says a lot of different things. It is often hard to tell which of his statements are the controlling statement, to use a dumb legal phrase, which of these things are the things that most accurately expresses his intent and desire? His words become very important, but he also often just unleashes a sea of words. Which words within those words, you prosecutors focus on? I think these are interesting challenges and topics for prosecutors to wrestle with, especially because, keep in mind, the First Amendment seriously protects political speech.

You have to draw a line between what's political speech and I think one of the challenges of this whole false elector scheme, part of the investigation is what is political speech and activity? What is potentially conspiring to conduct a coup? That is an important question and distinction that they have to wrestle with.

Brigid: I just want to note, we do know that Trump told acting Attorney General, Jeffrey Rosen, "Just say the election was corrupt and leave the rest to me and the Republican Congressman."

Delvin: Absolutely.

Brigid: Which a damning statement in whatever sea of words it was uttered in. We'll go to one more caller, Vick, on the upper west side. Vic, welcome to WNYC.

Vic: Hello. More overtly, there are many people awaiting trial for the insurrection on January 6th. Trump has said publicly that if he were elected, he would consider pardoning them. Why is that not considered witness tampering or somehow illegally tampering with the trial?

Delvin: I think that's another great example of the way in which the January 6th cases test the boundaries of what the government is used to doing. First of all, the part and power in the constitution is incredibly broad, and there have been investigations about possible corrupt [unintelligible 00:21:24] power in the past, but none of those investigations have led to charges of essentially a corrupt part in charge. That's never happened.

I think the institutions are reluctant to try to police the pardon power just because it is in the constitution written so broadly. I say that just as a general observation, I'm not claiming that they've written off the possibility. I think one of the ways in which Trump's relationship with the Justice Department, both when he was president and now, is that he talked about pardons in a way that no president has ever, to my knowledge, talked about pardons, and that he almost used it as both a rhetorical device and a dangle, publicly flirting with the idea that if people just remain loyal to him, they might get a pardon at the end of the line. He has acted on that, on those hints and suggestions, certainly, in some of the parts he gave toward the end of his time as president.

I think it's an incredibly valid and important question. I think my short simple answer is that's not something that the Justice Department has historically done, but it's another way in which Trump's conduct tests the boundaries and expectations and assumptions of how federal law enforcement works.

Brigid: Mike, in Madison, New Jersey, I think you are helping us set up our next question here. What is your question for Devlin?

Mike: Sir, if the Justice Department comes up with accusations, indictments, charges, what trial happens? He's been indicted and the House and Senate have done the impeachment thing, but this doesn't fall into that. It's the trial of a different nature. What does that trial look like?

Delvin: Very fair question. I think a couple things, one, one of the worries I always have about covering investigations is that when you say someone is under investigation or something is being investigated, a lot of times people take away from that, that there's going to be a charge at the end of this. The one thing I would just try to remind people, and I try to remind people in every story, is most criminal investigations don't result in charges. I know that it's a hard thing sometimes to wrap your brain around, but it is very much true that most investigations don't result in criminal charges. Specifically most investigations of political figures, it's particularly true that they often don't result in charges.

I think there is a huge distance to be traveled between an investigation in this instance involving White House figures and the former president and charges involving White House figures and the former president, and that distance may never be traveled. That ship may never reach port, to be honest. I think, one, that's my first answer to the question. We should not assume that there will be charges at the end of this. It is, I think, rational and understandable that the Justice Department would investigate this, would see if there is a criminal case to make here on some of these questions. That doesn't mean the answer is going to be yes.

Second, what a trial would look like, I'll be honest, I think it's important for people to say, when they don't know something, it's hard for me to picture, but in theory, a trial is a trial, is a trial, you get charged, in this instance, it would be in federal court and you go to federal court. You argue it out before a judge. I think we're so far away from the events and decisions that would decide that it's way too theoretical for me, personally,

Brigid: Delvin, I think part of what is so striking for so many of us is we have now watched 8 televised, January 6th committee hearings. I wonder if you can speak to the pacing of this DOJ investigation compared to what we are seeing play out on our televisions.

Delvin: I think one of the things I was trying to explain in this story and [unintelligible 00:25:59] for themselves whether I succeeded or not. One of the things I've been trying to explain this story is that public attention has very much been on the committee hearings, and understandably so, they have been well crafted, they've had a beginning, middle, and end, and they've driven points home publicly on television.

That is a completely different animal from criminal prosecution. I think some people look to the committee hearings as if these hearings are going to lead to criminal charges. That's simply not the case. It's not how this is going to work, even if there are criminal charges. I think, in some ways, it's a bit misleading to try to mix those two very different baskets of behavior because the federal prosecutors have to build their own case on their own evidence and not with congressional evidence.

It really has to be a self-directed gathered enterprise. I think it's really important for people to understand that whether Trump or people around Trump or people involved in the January 6th right itself are charged or not charged. That will not be because of these hearings. I know some people don't really want to believe that and I understand that, but I really think it's important to explain to people that congressional hearings are just congressional hearings. They focus public attention, they expand public knowledge of what happened and why it's important. They are, in and of themselves, completely separate from criminal investigations and prosecutions.

Brigit: Yet, this may be beating a dead horse here a little bit, but is there a way that these committee hearings are influencing this DOJ investigation at all? Whether it is surfacing new evidence and providing new leads or potentially sending them in new directions?

Delvin: Sure. Yes. I don't want to say that the hearings are relevant. I don't believe that at all. I think one of the things you've seen, for example, is that the prosecutors and the justice department have asked for the full transcripts of the committee's interviews. There's a bunch of legal reasons why you would want that even if you don't necessarily believe they have important incriminating evidence, they might have important exculpatory evidence that the justice department has to be able to show a court at some point that it knew about and handled appropriately.

That's a fairly down-in-the-weeds legal issue, but there is definitely information gathered by the House Committee that goes to places that the DOJ hasn't gone yet, or gathers statements or versions of events that the DOJ hasn't seen yet. That's certainly important. My point is you're not going to ultimately build any criminal cases of the Committee's evidence. You're going to have to do the work yourself on some level as prosecutors.

Brigid: With that in mind, on Tuesday, Attorney General, Merrick Garland, told NBC news, Lester Holt, that everyone involved will be held accountable related to January 6th. I want to play a little bit of that interview, with Lester Holt speaking first.

Lester: The indictment of a former President, of, perhaps, candidate for President, would arguably tear the country apart. Is that your concern as you make your decision down the road here, do you have to think about things like that?

Merrick: Look, we pursue justice without fear or favor. We intend to hold anyone who is criminally responsible for events surrounding January 6th, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable. That's what we do. We don't pay any attention to other issues with respect to that.

Brigid: Devlin, I'm curious to know your reaction to that.

Devlin: I think my reaction is that the Attorney General is trying to not say anything of substance about the status of the investigation, which, fair enough, I think people forget how chaotic and destructive 2016 and 2017 were in large part because senior law enforcement officials, particularly, the FBI, said too much and too many and in the wrong times. I think Garland is particularly wary of making those kind of mistakes, but I think what he's trying to say in a very plain lawyerly appeals judgey way is that, "Look, we're not going to back off anything just because it's scary or because a person is important or because someone's going to yell at us, we're going to follow things where it goes, and you have to have patience for us to do that work because it takes a long time."

One of the underlying issues here, always in every federal criminal investigation, but particularly, this one is that the public's attention span just hates how slow the prosecutors work. That's not, in any way, unique to this case, but it's especially true of this case. That tension will always be there. Garland will probably always have to say things like this, that don't really amount to much, but he's trying to send the signal, "We take it seriously. We're not sitting around on our hands. We're working very hard, and we are not going to shy away from it."

Brigid: Well, we are going to have to leave it there for today. My guest has been, Devlin Barrett, Reporter focusing on national security and law enforcement for The Washington Post. Devlin, thanks so much for coming on.

Devlin: Thanks for having me, Brigid.

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