Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. Here's a tale of two sound bites from the last 24 hours. First, President Biden signing the bipartisan infrastructure bill, with money for roads, rails, broadband, water systems and electric vehicle charging stations coast to coast.

President Biden: The bill I'm about to sign in law is proof, that despite the cynics, Democrats and Republicans can come together and deliver results. We can do this. We can deliver real results for real people.

Brian Lehrer: President Biden, late yesterday afternoon, "They can come together those two parties in DC," but then there was Steve Bannon as he gave himself up for arrest on a misdemeanor charge of being the only former Trump advisor defying a subpoena to testify at all before the January 6 committee in Congress.

Steve Bannon: I'm telling you right now, this is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House long when he got off Marine One, and we're going to go on the offense. We're tired of playing defense, we're going to go on the offense on this and standby.

Brian Lehrer: Now, besides the obvious lie in there about Biden ordering him prosecuted, it wouldn't be the first time that Bannon goes on the offensive against the rule of law. The reason the committee wants to question Bannon in the first place, is because they're asking now what role President Trump himself played in provoking the anti-democracy violence at the Capitol that day. Bannon was in close touch with the President and Bannon said this on his radio show on January 5th.

Steve Bannon: All hell is going to break loose tomorrow. It's going to be moving, it's going to be quick. All I can say is strap in, the war room, a posse. You have made this happen and tomorrow it's game day.

Brian Lehrer: Apparently, somebody knew something about something, but Trump and Bannon and to some degree others, are saying that they don't have to say what that was. The law and order president and his law and order people, right? What is the committee learning about the possible plot from the White House to try to stage a coup through violent means included, perhaps and what does it mean for 2022, 2024, or democracy itself that the Wyoming Republican Party kicked Liz Cheney out of the party this weekend, at least at the state level, basically for being on that committee at all?

With me now is Kimberly Wehle, law professor at the University of Baltimore, and opinion writer for many publications, including two of her latest pieces, one in the hill called Midterms are coming: Will we get answers on January 6 before it's too late. In the Bulwark, Trump in the wings, the lawsuits over the former president's executive privilege claims feed into the far-right narrative that he is the rightful president. Professor Wehle, thanks a lot for coming on with us. Welcome to WNYC.

Kimberly Wehle: Thanks, Brian, really happy to be here.

Brian Lehrer: To start with Bannon clip from January 5th, predicting all hell would break loose on the 6 as he was in close touch with the President, for you as a law professor, would that normally be grounds to compel someone to testify in an investigation of a riot?

Kimberly Wehle: Absolutely. The standard is actually fairly low. That is that it's basically relevance, that you don't have to have someone that is in the bull's eye of the smoking gun of the heart of the matter to be justified or Congress to want to talk to you. The Supreme Court has held for a very long time, that Congress has authority to call witnesses and collect documents because if Congress couldn't get information, it couldn't fulfill its primary Article 1 prerogative to actually legislate, that it needs good information to decide whether to pass laws.

Historians can just look back to Watergate, and there was a flurry of post-Watergate legislation, including, for example, the appointment or creation of inspectors general across the executive branch, in reaction to what happened with President Nixon. That is, it's Congress's job to plug the holes of accountability. Absolutely, I think clearly, it's within the scope of the January 6 Commission.

I think the other question, which is not within the scope, would be whether there's potential criminal liability for people like Bannon, for things like inciting insurrection, doing conspiracy to obstruct Congress, potentially a RICO violation, conspiracy to defraud the United States, things like that. Those are broader questions that I think go to the Department of Justice and Merrick Garland down the road. Arguably, what we're seeing right now happening in the January 6 Commission, is developing a potential record for that next stage that is potential criminal prosecutions on the lead up to January 6. There have been over 500 people that have already been in the criminal justice system before actually storming the Capitol, but nobody for planning it, and that's really what we need to get to the bottom of.

Brian Lehrer: Interesting. We'll talk about some of the emerging pieces of evidence about Trump and Bannon and Chief of Staff Mark Meadows as we go, but I want to get right to your biggest picture take on what's at stake. You conclude your op-ed in the Hill with the line, "What happens between now and November 2022 will likely determine the fate of American democracy itself." Professor Wehle, for whom that might sound grandiose, why do you say the stakes are that high?

Kimberly Wehle: I can see it sounds grandiose. This is something I've been talking about now for four or five years. Now, it seems to be ripping from the headlines for a lot of pundits and experts, both legal and historians. That is because what happened on January 6, wasn't just the violence in the building at the Capitol, but 167 members of the United States Congress in the Republican Party, even after the carnage, even after their colleagues and their staffers were running for their lives, the Vice President, there was a gallows set up outside the Capitol, Nancy Pelosi if caught, or Mike Pence, if caught, certainly would have potentially been assassinated. They still voted against the confirmation of Joe Biden as president.

They voted to cancel the Electoral College certifications from multiple states. Now we know this was actually planned. We know the famous, now infamous Johnny's Memo, a conservative lawyer close to the president who literally plotted out the notion that Mike Pence would not recognize the Electoral College certifications from seven states. Now, just to be clear, that is every voter in those states, that means, the vote doesn't count, Republican, Democrat, Independent, whoever you are, this is politician saying, "We are throwing your votes in the trash, and we're going to pick the next president."

Given that the big lie has survived past January 6 within the Republican Party, and is actually spread, the midterms are the crucial moment because as what people anticipate, particularly with gerrymandering, if a control is taken by the Republicans, it does not matter, Brian, who wins the Electoral College certification in 2024. The Democrats can put up the best candidate possible and get out as many voters as possible, we can get rid of all the voter suppression laws. But we can anticipate, I think we could probably guarantee that come January 6, 2025, a Republican majority will cancel whatever certifications might go to a Democrat and hand the presidency to the Republican candidate.

Given what we saw on January 6, it's folly to assume that won't happen. We saw it happen already. The big lie is continuing, as you mentioned in your lead, people like Liz Cheney is being ousted from the Republican Party. People who voted for the historic Infrastructure Bill from the Republican Party are getting death threats. This is what we are seeing is the death of American democracy. That's why I say, it's between now and next in the midterms because the fate of democracy depends on who controls the House of Representatives come 2022.

Anyone who thinks that the Republicans aren't going to do what they're doing already and continue on that path of strong-arming themselves into basically a single-party state indefinitely, needs to wake up and smell the coffee because there's so much at stake, Brian, not just for us, but for our children and our grandchildren and future generations of America, and also democracy across the globe. Other countries are watching with bated breath, they understand the stakes in this moment, the urgency in a way that Americans frankly do not.

Brian Lehrer: Wow. Listeners, your questions, opinions, and suggestions are welcome here for Law Professor Kimberly Wehle on the insurrection hearings and court proceedings. 212-433-WNYC. 212-433-9692, or tweet @BrianLehrer.

Now, Trump's own claim of executive privilege to not turn over materials relating to his communications before January 6, that's currently going through the courts. Can you remind us what executive privilege is under the law and what it's for?

Kimberly Wehle: Sure. There's a whole series of judge-made doctrines call called the privilege doctrine. When I say judge-made, this is not in the constitution, it's not in a statute, it's not even in a regulation, which is a law passed within a statute. This is judges deciding that certain communications need to be protected from disclosure. If you're talking to your lawyer about legal matters, that is considered a privilege. That isn't made available to the other side because the idea is, if you knew whatever you said, your lawyer would be turned over in evidence, you wouldn't talk to lawyers and that would be bad for the legal system. The same thing is developed around the presidency and that is, there are certain communications that we want presidents to make sure they can candidly have with their closest advisors, or presidents might not talk about things with their advisors and then would make bad decisions and that would be bad for policy and bad for the American people, et cetera.

This came up famously with Richard Nixon in connection with the Oval Office tapes. He said, listen they're privileged in the United States Supreme Court said, "Sure, there is executive privilege out there, but privilege has to be balanced by other considerations." One of those are the need for the American public to get information about wrongdoing. In that instance, it was involving a grand jury process and the court said, "Sorry, unanimously Richard Nixon, you can't hide behind privilege." These were Oval Office tapes, Brian, these are about as close to the heart of the presidency you can get. Fast forward now, we've got White House records relating to January 6, that are now with the national archives, under the Presidential Records Act, which is a post-Watergate reform.

I mentioned earlier, those records don't belong to the president anymore, to Donald Trump, and that was because Congress realized Nixon got a little cute about that and the records belong to the American people. They go to the national archives and they're basically controlled by the sitting, the incumbent president. Former presidents have 12 years to weigh in, but ultimately, it's the incumbent that decides what to do here. Trump said, "No, nobody can have my records." Biden said, "Yes, you can, I'm the sitting president." There's only one president in any one time. I think they should be turned over and Trump is basically our arguing that his stature as a former president is more authoritative than the sitting president and the United States Congress combined. Both of which want the access to these records, that's a stunning breathtaking legal concept.

Brian Lehrer: I think this is an aspect of it that a lot of people aren't aware of yet. You write about it at some length in your article, in The Bulwark today, that president Biden has chosen not to exert executive privilege over Trump's January 6 related documents. You highlight that essential question is which president gets to decide, only the sitting one or the one who did whatever actions are in question when he was president? You just said that the former presidents get to weigh in for 12 years. Is the law unclear on whether executive privilege applies to past presidents as well as to the current one or where that line is?

Kimberly Wehle: Well, yes. I think the law is unclear on where that line is. What I'm saying is, I think, it already came before a lower court, it's going to be in the DC circuit. That clash hasn't been presented in the past, that is no former president has said, "Listen, I have a greater claim to these records than a sitting president." There's also something with attorney-client privilege called the crime-fraud exception, that says you certainly can't hide behind attorney confidences for purposes of wrongdoing. There just hasn't been an occasion to decide, "Okay, can presidents use the executive privilege to basically hide wrongdoing?" That has to be wrong. I should you say, under the statute, it does allow a judge to resolve these issues. That's the wiggle room, I think, that Donald Trump has used to get into court, but frankly, my guess would be Congress never anticipated that a prior president would be behind a bloody insurrection, a coup of the United States presidency and want to keep from the United States Congress, basic public documents relating to his role in that violence at the Capitol. It's something for a Hollywood script.

Oftentimes, like we saw with Watergate, these holes need to be plugged after the fact, and the fact that Donald Trump is just so skilled and shameless about exploiting them, doesn't mean there's any serious legal ambiguity there. I think if it came down to it, if a court were having to decide, "Okay, we have a former president and a sitting president and the documents belong to the American people who gets them, who gets to decide?" It would be really hard to say a former president does. Think about it, Brian, that sitting president now, Joe Biden decides all other confidential stuff, national security information, the secret codes to the nuclear weapons, all of that gets transferred to the incumbent. Likewise, the incumbent decides whether there's material that needs to be kept from Congress, in the public interest. Here Joe Biden has decided it should be turned over.

The fact that this is going to court, though, as I mentioned in my piece, in The Bulwark this morning, that creates, I think, a perception, particularly amongst Trump supporters, that there are two claims to the presidency. This feeds the big lie, and that's very, very corrosive to American democracy. It just shows that most of the time presidents play by the rules, so we don't get into these crises that we're in right now, which is why I'm very, very fearful for American democracy because I've interviewed, on my Instagram show, simple politics experts in authoritarian, as a Mussolini, Hitler, all of those. Time it again, people that know about this, will say we are in lockstep with the blueprint for a dying democracy and authoritarianism taking over and taking over the courts. Co-opting the rule of law, watering it down, making it seem optional, which Bannon, his defiance in the courthouse steps did. That's a tool of dictators.

I know it sounds hyperbolic, but it's easier to save a democracy, than to rebuild one and I'm really committed to doing what I can, at least, to get the message out, so people pay attention to this.

Brian Lehrer: That conversation or those statements by Bannon on the courthouse steps that you're referring to, it seems to me that Bannon and Trump, are working from a classic anarchist playbook here, like purposely doing something illegal, like refusing to testify or turn over documents about their role in a coup attempt. Provoking the legal system to do what it has to do, then hold themselves up as victims of a political witch hunt by that legal system, even though they're not, but the story they spin is attractive enough to low information people who feel a aggrieved for other reasons and think Trump and Bannon represent them. Then they have a critical mass to aim for an overthrow of democracy, as you say, through political means or in the streets. How much do you think that scenario is a stretch?

Kimberly Wehle: I don't think it's a stretch at all. To me, I'm a very logical person and I look at the evidence and I've been watching this very, very carefully for many years. I'm not seeing any alternative narrative in this moment. The Democrats are playing by the rules, that is that Joe Biden could have done a Mitch McConnell type maneuver like he did, for example, in keeping Mayor Garland off the Supreme court, in pushing through Amy Coney Barrett at the 11th hour in not calling witnesses in the second impeachment, all of these things that were really, really strong, bullying constitutional tactics.

Joe Biden can say, "Listen, I'm not waiting for the courts, I'm going to hand this information over. I have control over it, I'm the head of the executive branch, the national archives is within the executive branch, democracy is on the ropes. I'm going to do this." Like Abraham Lincoln suspended the rate Habeas corpus. Presidents have done extraordinary things in extraordinary times. I'm not saying there aren't consequences to doing that, but the Democrats just aren't doing it that way. The Republicans are pushing the boundaries and it's working, they're winning.

I should say, this attack on the legal system began in December of 2020, with the 65 lawsuits. All of which with one tiny exception got tossed on their face. Not because we've got democratic judges, but because judges are bound by evidence and procedural rules, unlike politicians. The fact that 60 something lawsuits got that far or were filed, or that lawyers had the audacity to basically violate the rules of ethics, which include oath to uphold the constitution, to bring those cases, creates a perception that there was a there, there. The way law works, is you can file anything. You can file a case that says somebody gave you stink eye on the Metro. There's no legal right to get damages for stink eye on the Metro, but it takes, you can file the case. Somebody's got to get rid of the case, the fact that you filed it doesn't make it a valid, legitimate case.

Again, this march towards destruction of the rule of law in America, the fact that people were willing to file these garbage cases, Republicans, in such huge numbers, including Ken Paxton, the Attorney General for the State of Texas, wanted to cancel the votes in four other states. Again, multiple members of the United States Congress and Republican Party joined that lawsuit, these are frivolous, lawless sanctionable actions, but if there's no consequences for them, they get away with it.

The analogy I use, Brian, often, in speaking to groups about this, is we all know a hidden speed camera in our neighborhood and people will slow down, if they know there's a camera there and then they speed up once they pass the camera. The speed limit itself, doesn't slow everybody down, it's the consequences that slows people down. My question here is what are the consequences for all these actions, blowing through the speed limits of democracy, blowing through the speed limits of the constitution? Without consequences, the Constitution ceases to be a meaningful document and that's what we're seeing. It's a matter of human nature, it's not even politics. People need consequences to abide by rules.

Brian Lehrer: We'll continue in a minute with University of Baltimore Law Professor and opinion writer for many publications, including her recent two, that we're mostly discussing in the Hill and in The Bulwark. Kimberly Wehle, we have a lot of people waiting on the line to talk to you. We'll get to some of those phone calls and I'm also going to be curious to hear, Professor Wehle, if you have a theory about Trump's involvement in January 6, like if they are withholding all these documents? If they are withholding all this testimony, what exactly does the existing evidence suggests that they're trying to hide? We'll come back on that and your calls and more. Brian Lehrer on WNYC.

Brian Lehrer on WNYC with University of Baltimore Law Professor Kimberly Wehle, as we talked about January 6th, investigations and court hearings and politics. Brian in Westchester, you're on WNYC. Hi, Brian?

Brian: Hi, Brian. Thanks for taking my call. The last two or three minutes before the break, between the two of you, just so perfectly articulated what's been going through my head the last few months. Thank you for making it so clear and dire about what a crazy situation this is. My question for the professor is, I think about this stuff fairly often and I think most reasonable people do, they're worried. There are people I would assume are much smarter than me, that wake up every morning and game all of this out, if they do this and we do that and there are all these hypothetical scenarios.

I don't think Donald Trump is the smartest guy in the world, but he is a master of theater. He is a master of chaos and theater. Why hasn't the justice department, why hasn't Congress, why hasn't the White House, engaged in some theater of their own? Why was Bannon allowed to turn himself in? Why wasn't he dragged midstream, out of his recording studio and done a perp Walk and then he walks out and he gives this speech? Exactly what you were saying, a few minutes ago about how he's drumming up this narrative that's encouraging people already, maybe unstable to-

Brian Lehrer: Brian, let me jump in for time, but are you asking why didn't the justice department walk him out as a perp walk, raiding his home, as opposed to letting him surrender voluntarily or from Brian strategic viewpoint, why didn't he subject himself to that?

Brian: I'm asking Bannon or Donald Trump, there are so many offenses that they could have nailed him on, like why haven't they dropped that hammer? Why haven't they made an example of these people who are, as you say, bending and breaking the rules to cause a-?

Brian Lehrer: To provoke Anti-Democratic Uprising? Professor Wehle, you get his question?

Kimberly Wehle: Yes I do. I'll just quote what I wrote this morning in The Bulwark to your point and that is the very last sentence, was if an American democracy is to be saved, it might be time for Attorney General, Merrick Garland and Democrats in Congress to stop playing by the old rules, which don't seem to apply anymore, anyway. I'm a rule follower, but I do think this is a moment for big action.

A couple things, one is I share that head-scratching, for example, in Georgia, the 'find the votes' the famous call now to Brad Raffensperger, where Donald Trump was caught on tape, basically trying to commit potential election fraud. We might see an indictment down the road, there's obviously grand jury is going on in New York. The fact that Andrew Cuomo was indicted so quickly and Donald Trump hasn't been, the criminal justice system is, prosecutors want to make sure they can win. We're seeing this happen in the Rittenhouse trial in Wisconsin and the embarrassments that if he's acquitted on all counts. Prosecutors don't want to be in cases unless they can win. That's one question, the criminal justice system, it's difficult to bring these cases and to win them beyond a reasonable doubt, which is the standard.

ow, United Congress is a different story and I think the infighting within the Democrats is really problematic, that there's a more progressive wing that wants to see massive reform with a paper-thin mandate. If there is one and at all, with Kamala Harris, the deciding vote and they can't get on the same page. I find that very frustrating. If people ask me, "What should they be doing in this moment?" They should be passing an amendment to what's called the Electoral Count Act, which essentially, would make it not possible for members of the United States Congress to cancel the Electoral College vote in 2025.

Has that legislation even been put on-- is there a bill? As far as I know, no. I know they wanted to do these big infrastructure and is really important, but they're losing the messaging on this and they can't get on the same page to use their power in this moment to pass big reform around protecting democracy. The fact that's not happening, I think is tragic.

Brian Lehrer: Of course, they've got a couple of voting rights bills that are completely stalled in the Senate. There's even another radio talk show host who's on a hunger strike in support of those, but the thing you suggest, let's focus on that for a minute. A different kind of voting rights bill to protect the Electoral College outcomes and I guess maybe outcomes in other races, even down ballot. What we see happening, as I'm sure you'll agree, is the opposite at the state level, where in Georgia and in a number of states, they're passing laws to allow the state legislatures, the politicians to cancel the results of the votes. To overturn what the state secretaries of state might certify as the outcome of the presidential or any other vote in those states. State by state, they're undoing what you say, Congress should pass a law to protect.

Tell me if you interpret it the same way and then, are are you saying that Congress could pass a law that supersedes all those state laws?

Kimberly Wehle: Correct. There's two critical dates after November 4th and the presidential election. One is this last year, I think, it was December. It varies a little bit, but December 12th or 13th, that's the date that the states have to deliver their certifications of the Electoral College vote. The old statute from 1887, I mentioned in Electoral Count Act, doesn't mandate that when states do that, they pay attention to the popular road. It's again, amazing, it's nowhere in the law that states have to count actual ballots of voters. That's the gap that these states are exploiting by saying, "Well, we can just take the vote away."

Now, if Congress were to amend that statute to say, "No, actually, states, it's government by we the people, you can't just ignore the voters." Maybe that would be challenged, maybe it'll go to the Supreme Court, maybe it would survive or not, but at least, we'd have a prayer of not having politicians basically take over government. Then the second piece is, even if we get over that hurdle and the state don't manage to say, "Listen, we don't like that the popular vote went to Joe Biden or Kamala Harris," whoever's the Democrat, "on the ticket. The next round, we're going to just give it to the Republican." Either we get over that hurdle, we have the January 6th vote count, and Republicans deciding to give it to the Republican.

Anyway, the Electoral Count Act could plug both of those holes and say, "No, at both phases, you need to actually pay attention to the popular vote." Now here's the other amazing thing, Brian, and I wrote a book, How To Read the Constitution and Why and then followed up with What You Need to Know About Voting and Why. On the second piece, it's nowhere in the actual constitution that we all have an affirmative constitutional right to vote. It doesn't exist anywhere, that citizens have a right to vote and that's why soup to nuts, these kinds of shenanigans happen. This is why, this particular Supreme court is so problematic because the Conservative just don't really uphold the right to vote, with the sanctity that it deserves.

It really demands a constitutional amendment to make that clear and I think a lot of this would be cleaned up. The problem with Electoral Count Act amendments or the voting rights laws that you mentioned is the filibuster. The ability of Republicans now and the minority party in the Senate, to basically turn a bare majority vote into a super majority vote, that's a procedural relic and the notion that somehow that is more important, we better save that procedural relic, instead of saving the democracy itself, that is the ability of voters to decide their politicians, I think that's really shortsighted on behalf of the Democrats. They just need to bail out the sinking ship. They need to pull out all the stops and they're not doing it.

Brian Lehrer: Interestingly. You may or may not know this from your perch there is a law professor at the University of Baltimore, but even here where I am, in heavily democratic New York State, in this month's election and some of our listeners even in New York may not have heard this particular result yet, we've talked about it here, but hasn't gotten a lot of press, the Republicans mobilized enough voters to defeat a ballot proposal for permanent mail in voting rights, on the big lie of election fraud. The successful attack on voting rights, even extends to Blue New York, not just Georgia and Florida and Texas.

How far do you think they can use the law to bias the voting access laws against Democratic leaning voters?

Kimberly Wehle: I'm actually a born and raised Buffalonian, so New York is near and dear to my heart. That is surprising, I didn't know that detail. Again, under the Constitution, I think this is a myth, under the Constitution, Congress does have the authority, express authority to pass National Voting Rights Laws and the Freedom to Vote Act, which was co-sponsored by Joe Mansion and Amy Klobuchar. This is moderates and Angus King, Independent, that would make mail and voting available to all Americans. It does all kinds of things to stop these games around access to the ballot when there's no evidence. Even Chris Christie has said, come out and said in his book this week, in his book tour, there's no evidence of fraud, not meaningful evidence of fraud.

Bill Barr, who is certainly no Trump critic, he came out and said on behalf of the Justice Department, no evidence of fraud. A lot of people believe this, Brian, the lies are really infecting the bloodstream of democracy. I don't know how to get around that piece. The Democrats have to just get out and really, really loudly and make this their primary platform, whether they stay in office or not.

Brian Lehrer: One more call for University of Baltimore law, Professor Kim Wehle. Julian in Nyack you're on WNYC. Hi Julian.

Julian: Hi, Brian. I just have a quick comment about the previous caller. Much as I may find Steve Bannon's message distasteful, I think we're only as good a criminal justice system as we treat those people we don't agree with. For a misdemeanor, we don't break into their house and drag them out. My comment, though-

Brian Lehrer: Right. In other words, they were right to let him voluntarily surrender when he was charged. Go ahead.

Kimberly Wehle: I agree with that.

Julian: A part of the clip from Steve Bannon, that's been played, I haven't heard it commented on, but it really concerns me the most, is at the end when he says, "Stand by" which I understand to be code for a militia to be armed and ready and I was wondering if that is the case?

Brian Lehrer: I'm going to up, cite the end that clip again, since it's been a while since we played it. This is Bannon yesterday, as he was surrendering himself to face these contempt of Court criminal charges, he says, "We're going on the offense. We're tired of playing defense. We're going to go on the offense and stand by." Professor Wehle, do you take any particular meaning from the phrase stand by?

Kimberly Wehle: It's that Clarion call we heard, even from former president in December leading up to the January 6 insurrection. This violence piece is also out of the playbook of dictators and authoritarians and we will see a rise in violence around every election. I think moving forward, the threats against regular Americans who are just doing their jobs as election officials, that's going to make it harder for them to do their jobs and good people are not going to even do it. I think it's just really, to your earlier question, Brian, about, "What is January 6th trying to get at, what could actually be there?" We already know it and that we've got the playbook for basically bullying, Mike Pence to swing the entire Constitution in favor of an unelected person, that is Donald Trump.

There was planning around it, the Willard hotel, there was an Oval Office meeting meeting in December. Of course, Steve Bannon was ousted from the White House back in 2017 and got the pardon for his other criminal charges relating to basically fraud using Trump supporter money for wall building, for other uses, hours before Donald Trump left office. There was some switcheroo, where he was banished and he was on the dark list for Donald Trump and now, they're locking arm in arm. This is not good. This is not a positive outlook.

Brian Lehrer: Then let me finish with this question. In terms of how you think this could land with the general public out there, how much do you think the importance of this could land with the general public out there that don't follow every turn of screw of the news and whether it could wind up being anti-climatic and therefore, benefiting Trump and the anti-democracy movement in his party? I'm thinking of something like, "Okay, yes.," exerts things that you say, that have been reported recently. They tried to convince Pence not to certify the vote from some selected states, but Pence didn't play along. They discussed in the Oval Office with Michael Flynn in December, 2020, that's the meeting you just referred to, declaring a national emergency and then seizing voting machines, but they didn't do it.

Trump may have been provoking the crowd with inflammatory speech at the January 6th rally, but so far, we don't know that he planned a break-in of the Capitol or to have people break into the Capitol with a specific plot to physically stop the election certification. What's the range of scenarios that you think the committee might ultimately be able to even conclude happened, that will land out there as, "Oh, the president really did try to start this riot."

Kimberly Wehle: I don't think there's anything that the committee could come up with, that's going to change the opinion of the majority of Republicans who think that the election was stolen in 2022. I think that that lie, that narrative has gotten out ahead of the facts and ahead of the truth. I don't know what the scenario is frankly, Brian, between now and November, to stop this train from going off the cliff, unless Joe Biden and the Democrats can really pull together and set aside their political differences and hold hands and do what's needed to do to stave off what can still be saved. I really don't know.

We have the facts. What the smoking gun is that we don't already have, that doesn't keep coming out and it just ricochets around the media sphere. I think people, they shrug off wrongdoing by Donald Trump. Yes, he does that, but the point, you laid it all out aloud, Vice-President Pence, I think, is a hero, frankly. The next round, it won't be so clumsy. The next round, they'll have it all buttoned down, that's for sure. They will make sure that the Mike Pence's aren't in a position to make the right decision to follow their conscience. Mussolini understood this, you put criminals in office because they're really comfortable violating laws. Those are the ones that populate government.

How does this get out? I think it's this show, where people are listening and everybody who's listening should tune in one or two people in their orbit, to make it clear. This is not a partisan thing, this is an all-American thing and I think if there's a groundswell of almost like a, say, Brittany Spears-type thing, we saw her conservatorship and where a serious groundswell, where people on both sides of the aisle come together around common interest in controlling their own destiny through their government and debating politics and policy and not the legitimacy of the constitution itself, that's a strong order. It takes a 911-type galvanizing Clarion call. I'm still hopeful that we can pull it out, but we need a lot more energy behind it, than we have right now.

Brian Lehrer: On this segment that I did not think would end with a Brittany Spears reference, we thank Kimberly Wehle, Law Professor at the University of Baltimore and opinion writer for many publications, including two of her latest pieces, one in The Hill called Midterms are Coming, where we get answers on January 6th before it's too late and the brand new one in The Bulwark this morning, Trump in the wings, the lawsuits over the former president's executive privilege claims, feed into the far-right narrative, that he is the rightful president. Thank you so much.

Kimberly Wehle: Thanks for having me. I enjoyed it.

Brian Lehrer: Brian Lehrer in WNYC, much more to come.

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