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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. I hope those of you in the New York area got to enjoy the perfect weather weekend we just had. I know not everyone is a fan of summer. Some people find low 80s with low humidity still too hot, and bright sunshine too bright, but for a lot of you, this was the best weather weekend there could be, so I hope you got to enjoy it.

Because so many people were out reveling in summertime weather yesterday, many of you may have missed that, despite it being Sunday, there were some potentially significant developments in the January 6th House Select Committee investigation.

One is that Trump ally and right-wing provocateur, Steve Bannon, who's supposed to go on trial next week for a contempt of Congress for defying a subpoena to testify before the committee, Steve Bannon suddenly announced that he is willing to testify. Apparently, he wants to do it live, not on videotape. We know Bannon is a big showman, and I have my theories what he and Trump are up to with this. We'll discuss that in a minute with Elie Mystal from The Nation.

Another development is the report of who one of the live witnesses for tomorrow's hearing will be. That's now scheduled for one o'clock tomorrow afternoon, and we'll have it live. Multiple news organizations say it's Jason Van Tatenhove. I think I'm saying that right. Jason Van Tatenhove, a former spokesperson for the Oath Keepers.

He has said he used to be a propagandist, he used that word, for them. The Oath Keepers being the far-right, so-called militia organization. Van Tatenhove left the Oath Keepers in 2016 and is expected to talk about how dangerous they've become. That's because tomorrow's hearing will focus on the relationship between Trump and the groups like the Oath Keepers that may have come to Washington on January 6th intending to commit a violent break-in at the Capitol, not just a protest.

How much did Trump know about, enable, or even encourage the violent part of the insurrection that day? Here's committee member, Congresswoman Stephanie Murphy on what to expect tomorrow.

Stephanie Murphy: We will lay out the body of evidence that we have that talks about how the President's tweet on the wee hours of December 19th of, "Be there. It will be wild," was a siren call to these folks. We'll talk in detail about what that caused them to do, how that caused them to organize, as well as who else was amplifying that message.

Brian Lehrer: January 6th, House committee member Congresswoman Stephanie Murphy. It's unclear whether they will also take testimony from Steve Bannon tomorrow, or if those talks are ongoing for a possible later date. January 6th developments are one kind of thing you may have missed this weekend.

Another is President Biden's executive orders on abortion rights, Friday, and an intensifying conversation among wings of the Democratic Party, or progressives and Democratic Party mainstream leaders, however you want to characterize these groups, as to whether Biden is going far enough and sounding passionate enough about abortion rights and other issues.

A New York Times poll out today finds Biden's overall approval rating is even lower than before, one of the lowest among presidents in decades. 60% of Democrats want to consider other nominees for 2024. That's not just progressives over whether Biden is progressive enough, but that's part of the issue to be sure.

To talk about all of these January 6th developments, abortion rights, executive orders, and more, is Elie Mystal, The Nation's justice correspondent covering the courts, the criminal justice system, and politics, and the force behind the magazine's monthly column, Objection!. He is also the author of the bestselling book, Allow Me to Retort: A Black Guy’s Guide to the Constitution, which even Amazon has put on its best books of 2022 list.

To leave no doubt about where he stands on some of these issues, as Elie joins us, he tweeted yesterday, "The good thing about being an activist 'out of step with the mainstream of the Democratic Party' is that we're used to the mainstream of the Democratic Party telling us to go jump in the lake." Elie, I hope you enjoyed your weekend, maybe in an actual lake. Welcome back to WNYC.

Elie Mystal: Hi. I thank you so much for having me, Brian. I'm doing as well as I can given the desperate situation we find ourselves in with the revocation of fundamental rights for half the population.

Brian Lehrer: Can we start with the executive orders on abortion rights themselves, and then go into what more you think Biden could be ordering or saying?

A CNN list of the actions taken includes to expand access to emergency contraception and long-acting reversible contraception like IUDs, a statement from the attorney general saying states cannot ban misoprostol, the medication used to end early pregnancy that has FDA approval.

Plus, the department will ramp up outreach and public education efforts on abortion to ensure that Americans have access to reliable and accurate information about their rights and access to care. It says the executive order also focuses on protecting patient privacy. The President is asking the Chair of the Federal Trade Commission to consider taking steps to protect consumer privacy when seeking information about reproductive healthcare services. That from CNN. Elie, how much is that something rather than nothing?

Elie Mystal: Brian, I'm going to try something that's very dangerous in American media. I'm going to try some nuance.

Brian Lehrer: We're in trouble.

Elie Mystal: There are some good things in this executive order. This executive order is something. The way that I've tried to explain it to people is that what the Biden administration is really telling us is that they're trying to protect the rights to travel. That's how the Biden administration wants people, this full sale attack on women's rights.

They want women who are living in fundamentalist Christian states to be able to get out freely to the rest of America, access their rights as needed, then go back home without risk of prosecution. If you take it from 30,000 feet, that's what Biden's trying to do. If you're trying to do that, some of these ideas are really important.

CNN didn't mention the part where I thought was actually the newest part and the most important part of the executive order, where Biden said he is going to offer protection to abortion clinics in border states. Which, if you read the press, they are in danger from crazy people and they need protection. He's going to protect those people. He says that he is going to protect the right to travel. The privacy stuff, incredibly important. People can't criminalize pregnant people who flee their states to the rest of America to get services.

All of that is good. All of that is appropriate if you accept the premise of the Supreme Court's decision that abortion is not a fundamental right and that it should be up to the states to decide whether or not women have rights. If you accept that position, then the way to get around that declaration is to protect travel rights, and that's what Biden is trying to do.

Brian Lehrer: On that proposition that he accepts, does he have any choice but to accept it because he's not the Supreme Court? There is a separation of powers, and the Supreme Court, no matter what anybody thinks of them, rule that the constitution gives the states the right to regulate this.

Elie Mystal: This is where we get into the other side, Brian. Look, the best way of putting this is that there are things Biden can do, but these are the things Biden has chosen to do. What he is willing to do is what's in the executive order. That's not the full scope of his powers. He's not willing to use the full scope of his powers. We have reports that Biden considered declaring a public health emergency over this issue, and sending doctors to the Christian fundamental estates that are taking away rights. Biden declined to do that.

We have reports that Biden considered opening up federal lands to be leased by willing doctors to provide services. Biden decided not to do that. Now, there are reasons why one might decide not to do that. If you like Biden's approach, then you probably like this safe response to the crisis that we're facing. The idea that this is the full scope of his potential powers is just wrong. Brian, you're saying, and many people are here, the Supreme Court is the law of the land and once they say something there's nothing anybody can do. I understand why people say that.  That's not necessarily true.

The Supreme Court gave itself the power to invalidate laws and to be the final say on the constitution in 1803. That's not in the constitution that the Supreme Court gets to tell us what's constitutional or not. Supreme Court gave itself the power. Congress could take that power back straight up. It's called jurisdiction stripping, and Congress could say that, actually, the Supreme Court does not have the right to rule on whether this or that law or ordinance is constitutional.

Brian Lehrer: Just to say, that would be a huge change in at least the separation of powers, the way the separation of powers is practiced in this country. We know that, over time, the Supreme Court has done a lot to grant rights, especially to marginalized people that the political system would not grant.

Elie Mystal: Eh, for about 25 years there, yes. Over the 250 years of American policy, about 25 years there, the Supreme Court was in the business of granting rights. The other 225 years or so, the Supreme Court has actually usually been a conservative force in our politics to take away rights.

Brian, you're exactly right. Everything that I-- Look, there is no magic bullet. There is no wave of the wand. When the Supreme Court takes away a fundamental right of the people, there is no easy solution to that. Everything I'm saying, everything that I could think of is radical, is aggressive, is unprecedented. It's an unprecedented, radical, aggressive response to an unprecedented radical, aggressive decision.

Let's never forget that the Supreme Court took the most extreme position possible in its decision in Dobbs V. Jackson Women's Health. There were lots of more narrow ways that it could have ruled on that case. In fact, it was set to rule in a more narrow way until Ruth Bader Ginsburg died, and the conservative forces decided to up their game and go for, instead of simply upholding a 15-week abortion ban, which would've been violative of Roe, to overturn Roe and Planned Parenthood V Casey altogether, that was a radical, extreme decision.

The Dobbs's decision, it marks the first time in American history where a right granted to the people have been taken away from the people. I 100% agree, Brian, that everything that one might do to ameliorate the situation is radical, aggressive. From where I sit, I think that those radical, strong, aggressive moves are warranted given the desperation of what is happening.

I don't think people have a full appreciation, not just of how bad it is, but how bad it's going to get. You were talking about things that people might have missed over the weekend. Late Friday, the state of Texas said that it was going to sue, it hasn't done this yet, but it threatened, to sue a law firm in a "Let's find the biggest prisoner in the yard and punch them," to sue a law firm in their state, I think the second biggest law firm in the state Sidley Austin because Sidley is agreeing to pay travel costs for employees who need to flee Texas back to America to receive reproductive services.

Texas is going to sue them over an employee benefit.

Brian Lehrer: In the private sector.

Elie Mystal: In the private sector. It's going to get so much worse before it gets better. All of my solutions tend towards radical temporary fixes until we can address the real problem and the real problem is the Supreme Court and the fact that it's been packed by theocratic conservatives and we need to expand the court to dilute their power.

Brian Lehrer: Elie Mystal, justice correspondent for The Nation with us talking about Biden's response to the abortion ruling by the Supreme Court, and we're going to get into January 6th. Here's part of the president's appearance for that executive order signing to protect some abortion rights on Friday that has gotten under people's skin.

This is what I've seen remarked on and tweeted about a lot by people who are really frustrated. It's when the president said this.

President Biden: We need two additional pro-choice senators and a pro-choice house to codify Roe as federal law. Your vote can make that a reality. I know it's frustrating and it made a lot of people very angry, but the truth is this, and it's not just me saying it, it's what the court said, when you read the decision, the court has made clear it will not protect the rights of women.

Brian Lehrer: Did you react badly to that Ellie as imploring people to go out and vote because that's what's going to change this?

Elie Mystal: Why are you trying to get me in trouble, Brian? Look, of course, people need to go out and vote. Voting is our first line of defense, it's our first expression of power, it's how we change things. Of course, people need to go out and vote. I would argue, in their local elections, that there are Democrats around the country in their districts that are worth voting for in these midterms.

Absolutely, people need to go out and vote. The idea that we are just two good guys away from changing all of this is just- I don't know how else to put this Brian, it's folly. All right. That is wish casting. A, Biden is telling us that we're two senators away from cracking the filibuster at least in terms of doing a national codification of abortion rights. That's wishful thinking.

Brian Lehrer: Which Biden supports, by the way, but doesn't have the power to do. Ending the filibuster for abortion rights and for voting rights.

Elie Mystal: Right. Biden supports both of those things. There are obviously two senators that we know of that don't support those things. Biden says, give him a 52-vote majority and we're good. That's wishful thinking that the two senators that we know of are the only two, but let's go, let's give them the benefit of the doubt, let's say that we get 52 senators.

Where I say this is wish casting is I do not understand what makes people think that the same Supreme Court which just thumbed its nose at 50 years of its own precedent will uphold a national abortion law. I don't know why people think that. I don't know where they're getting their information.

This court, if you take any clear-eyed view about what this court is willing to do, this extremist court. I've written articles in The Nation detailing how the court, over the past 30 years, people forget Planned Parenthood V. Casey which uphold Roe V. Wade was a five-four decision and all five justices who upheld Roe V. Wade were appointed by Republican presidents. Now, it does-- [crosstalk]

Brian Lehrer: I'll continue to play devil's advocate here and say the court didn't say that Congress can't legislate a right to abortion, it just said a right to abortion is not implied in the constitution. Those are different, right?

Elie Mystal: Yes, Brian, you're right about what the court said in this particular opinion. The question is, is there any reason to believe them? I posit that if you actually read all of their other decisions, there is no reason to believe them. Two and a half weeks ago, Friday, they overturned Dobbs, they overturned Roe V. Wade saying that there's no constitutional right to abortion.

Then people say, "Oh, we're going to pass legislation." Well, the last day of its term, the same Supreme Court, the same six conservative justices basically said that the EPA didn't have rights to regulate the environment under the Clean Air Act. The Clean Air Act-

Brian Lehrer: They did say that.

Elie Mystal: -which was a law passed by Congress that created the EPA is now not enough of a law to let the EPA do what it was created to do. These conservatives are off, they're out to lunch. They're not here on earth one. Arguing, well, this time surely they will fault-- No, there's no evidence anymore that these conservatives care about the law.

When you say you're going to pass a law in sometime in 2023 to codify Roe V. Wade, I will tell you what happens then. What happens then is that the fifth circuit issues the temporary injunction preventing that law from going into effect. The Supreme Court then takes up that temporary injunction on a shadow docket and upholds the temporary injunction pending a merits decision that doesn't even get argued until 2024.

Then in 2024, when we are in a presidential election year, the Supreme Court brings the hammer down six three. Here, Brian, I'll prove it to you this way. Think about the ACA, think about the Affordable Care Act. Now, media people tend to laud John Roberts for saving the ACA, but how did he save it? He converted the ACA, which was a national healthcare bill that will be very similar to any future codification of Roe v. Wade. He converted it into a tax. Why? Because he was trying to be nice? No. He converted it into a tax because he didn't want to agree that the government had the power under the Interstate Commerce clause to give out essentially healthcare on a national level.

He thought that it had to do statewide, so the only way he felt that he could uphold it was as a tax. A future codification of Roe V. Wade is going to fall just like the ACA case did, only there will be no tax for Roberts to dodge.

Even if Roberts was willing to dodge it, he would be in the minority because they have more conservative justices now than they did then.

Brian Lehrer: I hear you. Now, also on abortion, before we take a break and turn the page and talk about these new developments with the January 6th committee, and listeners, we can take some phone calls from you for Elie Mystal Justice Correspondent for The Nation on either of these things, abortion rights, and Biden or January 6th developments. 212-433-WNYC. Questions or comments, 212-433-9692, or tweet @BrianLehrer.

One other thing on abortion before we turn the page, one specific thing that I've been talking about, and I saw you've been tweeting about, and you brought it up here too by calling these states that are banning abortion theocracies, is about abortion bans as acts of theocracy.

This weekend, Elie, I looked up some polling data, maybe you already know all this, on different religions' members' views on legal abortion in the United States. What we come up with is that, among the major population group religions, only white evangelical Protestants support bans on abortion. That number is 63%, generally think abortion should be illegal in what the Pew survey going by the Pew Research Center numbers here.

Evangelical Protestant, which means white evangelical Protestant, 63% for the bans, 33% against the bans. They separate this out between that evangelical Protestant group and what they call historically Black Protestant, 52% to 42% for abortion rights.

Then you go down to some of the other groups, Jews, 83% for abortion rights. Mainline Protestant, as Pew calls them, 60% for abortion rights, just 35% against. Muslim, 55% for abortion rights, just 37% against. Orthodox Christian, Eastern Orthodox, 53% for abortion rights. Of course, unaffiliated 73% for abortion rights. When you come down to it, one way to look at what's going on here is a white evangelical theocracy imposing its religion on just about everyone else. Is that how you see it?

Elie Mystal: Absolutely. Look, I'm Catholic, raised Catholic. Somewhat lapsed now. I'm sorry, Father.

Brian Lehrer: Oh, and I should say, because I left them out. Sorry, I was leaving them for last just because they're the most split group. The Catholics, 48% for abortion rights, 47% against. We'll call it a toss-up among Catholics. Still, that means half the Catholics think abortion should be legal, so it's not like there's overwhelming Catholic population position.

Elie Mystal: That sounds like my people. Look, the idea that life begins at conception is a fundamentalist Christian view. Many people, in many other religions, across the globe, and in this country, do not share the fundamentalist belief that life starts at conception. That is why. Then, of the people who believe this fundamentalist Christian thing, that life starts at conception, many of those people don't believe that they should be allowed to impose their religious beliefs on others.

One of the things that's been really interesting, by interesting, I mean horribly soul-shattering disheartening to me, over the past 70 days since the Dobbs opinion leaked, is that, as I talk to people, it's shocking to me how few people even understood what was in Roe and what Roe stood for, in the first place. The way that we solve this situation where some people believe one thing and other people believe a different thing is to take it out of the religious sphere and look at it from a secular perspective.

From a secular perspective, the only time where it even makes secular sense for the state to have an opinion on what's going on between a woman and her body and her doctor and her God, the only time it makes sense for the state to even have an opinion on that is at fetal viability. That's what Roe said, that before fetal viability, when the fetus or embryo or whatever you believe it is cannot survive without the labor of the pregnant person, then the state legitimately has no right to tell that person what to do.

After fetal viability, we can make some calls. We can say like, "All right, the state has a legitimate interest in this or that or whatever." That was Roe. There are people who really think that the viability standard is the right one yet supported overturning Roe because they didn't understand what was in Roe.

I think that when you look at what is supposed to be a ethnic multi-religious secularized country, the standard in Roe was the only legal standard that made sense, and everything that's not the standard in Roe is Christian fundamentalist theocracy.

Brian Lehrer: By the way, among smaller population religious groups in this country, according to Pew, Buddhists, 82% for abortion rights. Hindus, 68% pro-abortion rights. On the other side, Mormons and Jehovah's Witnesses, about 70% against abortion rights, but those are all much smaller groups.

Just to put a pin in this, despite what you just said, and I believe that too, I've had so many guests from the legal realm who say the first amendment religious liberty challenge to abortion laws is likely to fail because the anti-side can claim a moral, not religious, civic duty to protect the weakest among us, which they would say are embryos and fetuses who don't get a vote.

Do you think so too as a matter of putting on your Harvard Law graduate, Nation legal analyst hat, as a matter of legal analysis?

Elie Mystal: I don't agree as a matter of legal analysis. I agree as a matter of what these hypocritical conservative justices are willing to do. Look, these conservatives will take a freedom of religious exercise to its ridiculous extremes. This term twice basically punched a huge hole in the separation of church and state forcing taxpayers in Maine to help pay the tuition for parochial schools in Maine, allowing a football coach to lead his students in prayer on the football field at a public school.

We know, from the past, the Supreme Court will basically use the free exercise of religion to justify bigotry against the LGBTQ community. When you flip it around, when a Jewish woman says, "This abortion law violates my religious beliefs," I promise you the Supreme Court hypocritically will turn tail and say, "No, no, no, this is not a free exercise case." As you said, Brian, exactly, "This is about civic morality and blah, blah, blah."

I agree with their legal analysis. Where I disagree with lots of other lawyers is that they take the Supreme Court's legal analysis as if it's offered in good faith. There is no evidence that the Supreme Court operates in good faith anymore. There is only evidence that the Supreme Court does whatever it can to generate the outcomes it desires.

Brian Lehrer: We'll continue in a minute with Elie Mystal. We'll turn the page and talk about these January 6th developments, which he's also following. You've got the phone's hopping. Elie will take calls on your opinion about Biden and abortion rights and the other stuff we're talking about. Stay with us.

[music] Brian Lehrer on WNYC with Elie Mystal, The Nation's justice correspondent, also the force behind the magazine's monthly column Objection!, author of the bestselling book, Allow Me to Retort: A Black Guy’s Guide to the Constitution, which as I said at the top, even Amazon has put on its best books of 2022 list now. Talking about  the Dobbs decision, Biden's reaction to the Dobbs decision, we'll get to January 6th. I think Alice in the Bronx is going to serve as a bridge to those reacting specifically to Ellie and a lot of progressive America's frustrations with Biden's response. Alice, you're on WNYC. Hello.

Alice: Thank you so much, Brian. Thank you for letting me talk. That's just my little idea. I just have two things to say. This guy that's talking with you, you're forgetting that we had four years of Trump and the damage that he did to us and he's criticizing Biden left and right every single thing he does. Biden's never going to hurt us the way that Trump did, never in a million. He's got to [unintelligible 00:30:44] [crosstalk]

Brian Lehrer: That's a very low bar though, right?

Alice: It is, but you know what? Remember what we went through, and we might even have it to happen again. We're not out from pandemic yet like COVID, not over yet. Secondly, I don't think that he should be calling for aggressive radical response to Roe V. Wade, because we're just still getting out from under January 6th and this guy's calling, oh I know it's terrible, it's an awful thing to happen, but he can't be saying, we need a radical aggressive response, we can't just let this go. Really you can't start talking like that. We're in that kind of stuff right now. [crosstalk]

Brian Lehrer: What's the relationship that you're trying to establish between Roe and just getting out from under January 6th. Why are they related?

Alice: Because your speaker was saying that he was calling for a radical aggressive response to the Roe V. Wade decision, and I'm saying aggressive and a radical response should not be talked about. January 6th was aggressive, radical response. We don't need another one. We're still going through it.

Brian Lehrer: Thank you very much. Elie, that guy who's my guest, as the caller called you, that's a lot of the more centrist Democrats position. They go to these places, we don't want to be the party that also goes to these places and further tears the country apart. Your response.

Elie Mystal: I reject out of hand that fighting aggressively for women's rights tears the country apart. I just reject that notion completely. This is a fundamental right that was stripped away from half the population, and the idea that we're supposed to have is, "Oh my God, be quiet because if we say too much, the Republicans might hurt us." No, no. That's how we got into this situation, in the first place. People being way too casual about rights that they don't think are as important as something else. I do.

I think this is the line in the sand. This is the thing that is actually important because this affects real people. Alice seems to think that I have forgotten about the Trump administration. Of course, I haven't forgotten about that. Of course, I know how bad Trump is, but the idea that criticizing this president right in this moment for his specific response to this desperate time that we're in. The idea that criticizing--

Brian Lehrer: She's talking about, I think, more the institutional things you were advocating like taking the power to overrule Congress away from the Supreme Court.

Elie Mystal: Let me put it like this. If you look at the Supreme Court rationally, what you see is an institution that has gotten way too big for its bridges. Honestly, Brian and Alice, think about it this way, what law can we pass, what executive order can we pass in this democracy that we have any confidence is going to be real until the Supreme Court weighs in one way or another?

That's not how it was supposed to work. That's not how even the founders thought it was supposed to work. Alexander Hamilton, Federalist 78, the Supreme Court should be the weakest branch of government because it has neither the power of the purse nor the power of the sword.

At various times in American history, aggressive presidents had said, "You know what? I'm not going to listen to the Supreme Court. I'm going to do what we need to do for the country." Abraham Lincoln, during the civil war, he was getting hamstrung by his Supreme Court, which just happened to be the same Supreme Court that released the Dred Scott decision, which pretty much started the civil war. What did Abraham Lincoln do?

First, he expanded the Supreme Court, he added another justice, and then he ignored the Supreme Court. Let's fast forward to the 1930s, the Supreme Court is hamstringing FDR's new deal policies. FDR threatens to pack the court. Now everybody wants to say, "Didn't work, and Congress and the people didn't like it." You know who noticed that? The Supreme Court, switch in time that saved nine, it's called, the Supreme Court, the one justice Owen Roberts, no relation to John Roberts, who had been against the new deal policies switched to being for the new deal policies after FDR threatened to pack the court.

This has happened in the past, in our history, where the Supreme Court has gotten overpowered, and aggressive presidents have done what it takes to cut their power so that the will of the people can be advanced. I don't get to vote for Supreme Court justices, I get to vote for my Congress people, I get to vote for my senators, and I get to vote for my president, and like a ton of other local officials that, my God, everybody needs to really walk in and start voting for.

I don't get to vote for these nine law wizards, and they shouldn't have as much power as they do.

Brian Lehrer: Gary in Brooklyn, you're on WNYC with Elie Mystal. Hi, Gary. Am I saying your name right?

Gary: Hi, thanks. Hi. Hope you can hear me. I think the court has opened the door to revisiting social [inaudible 00:35:52] and Medicare and even as your speaker alluded to Marbury versus Madison conservatives in the 1930s had social security struck down as unconstitutional until the Supreme Court reversed that.

Brian Lehrer: We have a terrible phone line, so I'm going to let it go. The point that Gary was making to our screener, Elie, was that Medicare is also on the line with this Supreme Court. Do you have reason to believe that that specifically is the case?

Elie Mystal: Oh, yes. Look, Clarence Thomas laid it all out in his concurring opinion in Dobbs, where he said that we should use the same kind of rationale the Supreme Court used in Dobbs to take down basically all of liberal democracy. He wants to go after contraception, he wants to go after LBGTQ rights.

Look, the analogy that I've made, Brian, is that the conservatives spent a long time trying to create justices who would do just what they've done, create justices who would take down Roe. To do that, what they had to do was create justices who would no longer care about the practical impacts of their decisions. They did. They found six people willing to do that work.

Now that they've done and they've gone and they've killed the thing that they wanted to kill, Roe V. Wade, that doesn't mean they're finished eating. Like an invasive species, they're going to keep feeding, and we see that through the rest of the court's docket.

If you look at something like a New York State Rifle & Pistol Association versus Bruen, where, again, you wanted somebody to vote for Kathy Hochul out front on opposing this Supreme Court. Vote for Kathy Hochul if want to hear me say vote for Democrats. She's doing a great job. If you look at what the Supreme Court did in the Bruen decision, Clarence Thomas directly says that the Supreme Court isn't allowed to look at facts, statistics on gun violence, when making its decisions. That's ridiculous, but that's what the Supreme Court is willing to do.

As long as we have these six conservatives with a stranglehold over the third branch of government, acting like they have a veto over what the elected people do, we will see decision like this again, and again, and again, until there's nothing left, but the dystopian Christian fundamentalist country that they seem to want to live in.

Brian Lehrer: Let's turn to January 6th in our remaining time. Jason Van Tatenhove, a key witness tomorrow, former propagandist for the Oath Keepers as he describes himself. What do you hope for or expect he might be able to reveal about advanced planning to commit a violent break-in in any coordination with Trump or people close to Trump?

Elie Mystal: Look, first of all, January 6th committee has been on point. Like let's just give it up for the January 6th committee, vetting Thompson, Adam Schiff, even I have to say, and it's basically catching in my mouth, but Liz Cheney and Adam Kinzinger have also been on point.

Brian Lehrer: The two Republicans?

Elie Mystal: Yes. Good job, everybody. They've been really good. One of the reasons that we know that they've been really good is, look at all these people who have spent months ignoring the committee, denying the committee, literally getting charged for denying. Now, all of a sudden, they want to talk to committee. Now Steve Bannon wants to get on TV and try to do his defense showmanship thing.

Now Pat Cipollone is sitting for a deposition on Friday with the January 6th committee after ignoring them for months. That's one great indication that the committee's work has been well received by the American people. As I look forward to Tuesday, as far as I can tell, what the connection needs to be made on Tuesday is not just how terrible the Oath Keepers and the proud boys were. People generally know that these are white supremacists, basically white domestic terror organizations that have been preying upon us for a long time. What people need to hear is how those organizations go about recruiting the next  generation of white supremacists and how Donald Trump helped them recruit the white next generation of white supremacists and how Republican Party orthodoxy, at this point, is helping them even further.

That's the connection that we need to see, I think, on Tuesday, that I think they're going to try to make on Tuesday. People still, even at this advanced point, still like to portray Donald Trump as some kind of random idiot, some kind of random [unintelligible 00:40:31] actor who says things and then things happen and then he doesn't know why they happen, but he just keeps saying them.

No, he knows who these people are. He knows what these people are willing to do and he likes it. That is the point that I think we're going to get on Tuesday.

Brian Lehrer: We'll see how well they connect those dots tomorrow. By the way, for those of you who keep close tabs on these things, the hearing was originally scheduled for ten o'clock tomorrow morning. It's now been moved to one o'clock tomorrow afternoon. That's when our special coverage will begin. Steve Bannon declaring his willingness to testify. I'll tell you my theory, you tell me if you think--

I'm often on Mars with this because I did not hear some of the Democrats on the Sunday talk shows yesterday say this. My theory is that he and Trump have cooked up a counter-narrative because these hearings have not had cross-examination by Trump's side and they have been effective at getting big swaths of truth out that people haven't been paying attention to before.

Bannon might be planning to go in there and be their hostile witness, their only hostile witness and rile up the base and maybe convince some independents that it's the committee and the Democrats who are the bad actors because I imagine he will not just dish on Trump or even just defend Trump, but attack the investigators. Your take?

Elie Mystal: I think you're 1% right and that is why the committee will never let him do that. Right? See, Bannon wants--

Brian Lehrer: How can they prevent it?

Elie Mystal: They don't have to let him testify on their dime in-- They don't have to do that. He's been subpoenaed to testify before Congress. He does not get to choose when and how and where he testifies, that is under--

Brian Lehrer: Apparently, they want him to testify privately. He wants to do it publicly. That seems to be where they are right now, right?

Elie Mystal: Right. I do not think that they will let him testify publicly first because that's just bad lawyering. You never interview a witness for the first time live on the witness stand because you don't know what they're going to say. That's that old lawyer saw.

Never ask a question that you don't know the answer to. They will interview him privately first or they won't interview him at all, and that's just how it's going to go. Again, there's a hubris with Republicans and especially the ones connected to Trump who think that they just get to write the rules as they see fit, as it works for them. The committee does not have to play ball with that. The committee does not have to give into that. I do not expect, they will.

This goes back to your theory, Brian, the only reason Bannon wants to testify is because he sees that they're losing. He sees the mistake. People always want to act like McConnell or some kind of three-dimensional, just genius. The mistake of Mitch McConnell and Kevin McCarthy was that they didn't want to play ball with this investigation, that they didn't want to have their people to work in good faith with the Democrats over this investigation.

Instead, they let the Democrats do what they want. That's why we have a really good hearing as opposed to the usual congressional-like petty high school backbiting, "Oh, it's my turn to get five minutes in front of the TV."

Brian Lehrer: Last thing, and connecting the dots, again, between Trump and Bannon, who was part of Trump's inner circle, planning January 6th and connecting those dots as the committee will try to do tomorrow between Trump and those who intended to commit violence all along, Bannon said this on his radio show on January 5th, the day before. How consequential as evidence is this? Listen.

Steve Bannon: All hell is going to break loose tomorrow. Just understand this, all hell is going to break loose tomorrow.

Brian Lehrer: Is that admissible evidence, counselor?

Elie Mystal: That's evidence. It's not the end of the inquiry. It's not case closed. He can be saying, he thinks all hell is going to break loose in terms of the protests and the whatever without thinking all hell is going to break loose in terms of like, Let's go kill Mike Pence." Now, I happen to believe that Bannon was saying that because he understood that people were going to be sent to the capital to kill Mike Pence. That's what I personally believe, but I can't prove that based on his one statement there.

Look, if we want to see- and I get this a lot, to the extent that we want to see the people who did this to us in jail, it's not the January 6th Committee's call. They do not have the enforcement jurisdiction. It's an oversight committee. They can tell the truth. They've been doing an excellent job about that. They can suggest new laws that we need to protect ourselves from this attack in the future. I imagine they will do an excellent job about that.

When it comes to prosecuting people, you need prosecutors. You have to go back and look at what the Attorney General Merrick Garland is doing. In terms of Trump's personal exposure, Fani Willis in Atlanta, in Georgia, just subpoenaed a whole bunch of them on the election fraud that he attempted to do against Brad Raffensperger. That is ongoing.

Don't forget, here in New York, we have Tish James whose investigation is also ongoing. [unintelligible 00:45:56] [crosstalk] I think when we look at vectors of actual legal culpability, we always have to go back and look at the prosecutors as opposed to the politicians on January 6th. The January 6th politicians are doing a great job though.

Brian Lehrer: Elie Mystal, The Nation's justice correspondent, author of the book Allow Me to Retort: A Black Guy’s Guide to the Constitution. I gather, I didn't know this when the segment started, so I'll say it now, some of you listeners may remember, I knew this. Some of you may remember that Elie was the legal editor for Radiolab series about the Supreme Court a few years ago called More Perfect, and now Elie's a consultant for Radiolab. Is that because they're doing More Perfect Season 2?

Elie Mystal: I am not liberty to say.

Brian Lehrer: Oh, okay.

Elie Mystal: I'm a consultant for their weekly show now. I imagine most of your listeners listen to Radiolab, but if you're going to let me plug for a second. It's the best podcast. It's just the best podcast. People should listen.

Brian Lehrer: A superlative from Elie Mystal, for many of you I know a superlative in his own right. Elie, thanks as always.

Elie Mystal: Thank you so much for having me, Brian.

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

 

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