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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again everyone. Today was the day that the January 6th committee was supposed to hold another public hearing after taking a late summer recess. We were planning to air live here on the station this afternoon. Committee watchers were anticipating some possible bombshell revelations maybe including more direct communication than previously known between Trump's inner circle and those who always planned violence on January 6th. They've now postponed the hearing because of Hurricane Ian hitting Florida.

They'll reschedule when the coast is clear, literally in this case. There are still important things going on on the subject. One big one is the opening of jury selection yesterday in the trial of leader Stewart Rhodes and four other members of the Oath Keepers, the pro-Trump militia group on the very serious charge of seditious conspiracy in connection with January 6th. As The Washington Post describes the case, prosecutors will try to convince jurors that Rhode's call for an armed civil war to keep Donald Trump in power on January 6th, 2021, was literal and criminal.

The Posts sites analysts who say whether the government tips its hand in court about the Oath Keepers' ties to other political figures, the trial is an important step in the wider probe. We'll talk about all this now and the classified documents case in which it's looking more every day. Have you heard this? Trump's handpick special master reviewing documents in the case is calling Trump out more than doing his bidding. With me to explain all this is explainer extraordinaire on all things Justice Department, Katie Benner, New York Times Justice Department correspondent. Katie, always great to have you. Welcome back to WNYC.

Katie Benner: Thank you so much for having me.

Brian Lehrer: As far as you've been able to learn what was today's hearing supposed to reveal that they'll eventually get back to?

Katie Benner: Today's hearing was really interesting because the committee was still trying to figure out what it was going to present to the American public almost right up until the last minute. They will not have witnesses or at least for the hearing that was supposed to happen today, they were not going to have witnesses. They're going to take a lot of the video interviews and other information they had not yet presented to try to tie together and somewhat recap the information they've presented.

They wanted to get into some new areas of consideration concerning Roger Stone with some of the documentary footage that has now been revealed in The Press, including the fact that Roger Stone was really encouraging Donald Trump and others to reject the results of the election no matter what and then they were going to talk about how the events of January 6th continue to impact American politics and American life.

Brian Lehrer: The topic that I'm seeing discussed a lot on cable TV channels not named Fox, is connections between Trump or his very close associates like Roger Stone and Michael Flynn and those planning to physically prevent the peaceful transfer of power to Joe Biden. What dots are they trying to connect there as far as you could tell?

Katie Benner: I think that what they would like to do is show that Donald Trump was aware that his direct reports and his closest associates were encouraging violence on that day in order to stop the peaceful transfer of power in order to stop Joe Biden from becoming president. I don't know if they'll get there. Keep in mind Donald Trump is interesting guy. He doesn't use email.

There aren't tons of communications between he and others but what they do have is they have on video Roger Stone, one of his closest associates, discussing the idea that he's going to recommend to Donald Trump that he rejected the results of the election out of hand no matter what and the idea that Roger Stone was encouraging of the violence.

Then on the other hand piece not yet directly connected is that Roger Stone's paid bodyguards were members of a far-right militia called the Oath Keepers, the very group that you noted their trial begins this week for seditious conspiracy. I think those are the dots that people on the committee are trying to figure out whether or not they can draw straight lines to or whether it's more inference. Certainly, to your point, those are the elements that are swirling out there in the ether.

Brian Lehrer: That clip of Roger Stone that you're referred to I've seen it. I don't have it here right now but where he's basically saying Trump should declare victory and start calling out fraud in states that he didn't win. Was that from before the election?

Katie Benner: Yes. Then you see, it's so interesting. We've reported that after when you see the violence that Roger Stone. He has some inkling that this is not going to go well and there could be prosecutions. He, in that moment, already starts talking about whether or not he should be preemptively pardoned by Donald Trump. He and Bernard Kerik both whether or not they should both be pardoned for the encouragement they were giving people to try to oppose Joe Biden's electoral college win.

It's an interesting arc for Roger Stone that he doesn't want Donald Trump supporters to accept the results of the election. He doesn't even want Donald Trump to accept the results of the election but then when violence breaks out, he realizes and he says in these messages that there could be a lot of prosecutions and that he wants to be protected.

Brian Lehrer: What a guy, Roger Stone, didn't Trump already pardon him once for--

Katie Benner: He notes that in the messages back and forth with this lawyer who's also working with Donald Trump. He says, "I've already been pardoned once and so it shouldn't be a big deal to do it again."

Brian Lehrer: Wow. That was for witness tampering in the Russia investigation, right?

Katie Benner: Yes.

Brian Lehrer: Just to finish this little piece of it on how involved Roger Stone was with any established plan to break into the capital and how closely involved Trump may have been with Stone at that time. Didn't former White House official Cassidy Hutchinson drop at least one piece of evidence about that at one of the January 6th committee public hearings?

Katie Benner: She spoke extensively in various points in her testimony about more room meetings that were happening that involved people like Roger Stone and that there was argument back and forth within the White House about whether or not people like Mark Meadows the Chief of Staff should be directly involved in those meetings. Certainly, she was inferring she didn't go to the meetings herself so this is not firsthand knowledge but she is in certainly inferring there were folks inside The White House who were cognizant of whatever plans were being made.

Brian Lehrer: Now, you reported on a former January 6th committee staffer, Denver Riggleman, who is no longer with the January 6th committee staff and is now criticizing the committee for not being aggressive enough in pursuing connections between Trump and the rioters. What does he say the committee is not doing that it could be doing?

Katie Benner: Denver Riggleman, first of all, we'll start with the committee's defense, I think. The committee notes that he left in the spring. He left before they had gathered a lot of the evidence they ended up gathering, he left before the hearings themselves, he left before they had their impact on the American public even so, so that's what the committee would say.

In his book, he wrote a tell-all about being on the committee and he's saying that they weren't going hard enough. They weren't following leads. He talks about, for example, a phone call that happened as the riot was petering out between one of the rioters and The White House. He felt like these leads were just not being pursued hard enough. He's critical of the committee and he's not sure that he thinks that the work that they're doing is rigorous enough, I guess, is how I would put it.

Again, he leaves in the springtime. I think that that's what a lot of folks on the committee are saying that he may have thought that in the spring but he doesn't know what evidence they found. If he doesn't think that the committee is going hard enough after people like Mark Meadows, the committee is saying he wasn't really there. He does not know what we had after April.

Brian Lehrer: What motivation would the committee have to soft-pedal Trump's involvement or his Chief of Staff Mark Meadows's involvement? It seems like of all the January 6th threads the committee could be focusing on because there are so many elements to it really, they've been focusing a laser on Donald Trump's role so it doesn't seem like they're soft-peddling his connections to January 6th at all.

Katie Benner: Yes, I can't get inside of anybody's heads. I'm not really sure why the committee would do that. All we can know is what the committee has said in public, particularly Liz Cheney, who's the vice chair of the committee. She seems very, very dedicated to the idea of not only holding Donald Trump to account but anybody in her orbit, Republican politics who continues to say erroneously and falsely that Donald Trump really won the election at the Texas Tribune Festival in Austin over the weekend.

She put it so bluntly, she just said that those are not people who should even hold office and clearly, she uses these hearings to convince not just the American public but her fellow Republicans that they're the only people who have the power to stop Donald Trump from being a big force in the Republican Party and that she wants them to do so. I'm not really sure why she would be motivated to behave as Denver Riggleman says, which is to go easy on people like Mark Meadows.

Brian Lehrer: Listeners, you can call with a thought or a question for New York Times Justice Department correspondent Katie Benner about the three things we're talking about, the January 6th committee investigation, the Oath Keepers trial, which is beginning this week, and the classified documents investigation. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. I want to go on to Oath Keepers but to follow up on something you just said about Liz Cheney and her goals, sometimes I think there's too much media focus on whether Trump will be criminally charged with something in connection to January 6th or any of the other investigations.

Criminally charged when, as you put it, Liz Cheney's goal seems to be more to marginalize Trump politically. If he's really a threat to democracy, the big thing here is to make sure he doesn't become president again, or somebody connected to that aspect of Trump's movement doesn't become president again or don't have the power to de-certify legitimate election results but that's really the goal here. The goal is not putting Donald Trump in jail.

Katie Benner: Because putting Donald Trump in jail does not stop him from running for office. It doesn't stop him from campaigning. We've certainly had people who've run for office from prison before in the past. That's not a guarantee and that's no guarantee that the people who support him would stop supporting him simply because he'd been indicted. You could make the argument that if he were to be charged with a crime, it would supercharge his own campaign but I think that what Cheney is getting at, not explicitly, is the idea that in our American political system, in American democracy, it should not be law enforcement that decides whether or not somebody can run for office.

It should be the political system if the political system is working and the broad system is working, we're a well-educated population, we are civically involved. Our parties want the very best candidates to put forth to the American people to vote on. That is what prevents unfit people, people who do not want to defend and protect the constitution as one witness before the January 6th committee described Donald Trump, that's what keeps those people from being in office.

That's sort of what Liz Cheney is getting at. That if the system's working, that's what it means to work. I think Watergate is always an interesting example to look at. You remember Richard Nixon was never prosecuted by the Justice Department. He was never investigated fully by the Justice Department because he was pardoned, it takes it off the table but he was just pushed out of Republican politics.

The party turned on him. They said, "We cannot have this person be our standard bearer. We have to get rid of him, and we have to get rid of what he stood for so that we can move forward and continue to say that we govern for the people and have power and come up with a group of political beliefs that we can put forward to the American people and wash ourselves of what they thought of as a stain on the party."

Cheney is saying, "We need to do that again." She's saying that's what we need to do because I heard somebody argue the other day if Richard Nixon had had the media atmosphere, we have now the access to social media, to these big platforms, the ability to bypass the press, the ability to bypass his own advisors and his own party leaders, would he have gone away so quietly? Who knows? What Cheney is saying is we need to be responsible. We need to be the guard rails as Republicans because otherwise, whether or not this guy goes to jail it's not the system work, the system working is our political system working and us deciding as Republicans that this is not the person we want to lead the party.

Brian Lehrer: I've heard it said that if Fox News existed in the 1970s, Richard Nixon would not have wound up resigning but as a footnote to that story you were just telling, just to clarify for a lot of listeners who may not know this, if you are convicted of a crime, you're still allowed to run for president of the United States.

Katie Benner: We've had people run from jail. Lyndon LaRouche famously, I feel like he was a candidate who ran throughout my entire childhood environment.

Brian Lehrer: What was his group again?

Katie Benner: I'm forgetting the name of his party, but he was somebody who was a political--

Brian Lehrer: One of these Athlone Party candidate

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Katie Benner: Exactly. He was willing to run from prison.

Brian Lehrer: Stewart Rhodes plus four other members of the Oath Keepers, they're on trial now for seditious conspiracy. Jury selection began yesterday. We'll get to the possible connections to Trump that could be included as evidence. Can you first describe what they're being charged with and how extreme and unusual it is to be charged with seditious conspiracy?

Katie Benner: Yes. They're being charged with sedition, with conspiring to use violence to overthrow the government, to oppose the government of the United States. This is extremely rare. The last time it happened was a case in Michigan that occurred more than a decade ago, I believe but don't quote me on that number, I'm so sorry but it's been a long time. This is very, very rare.

The government lost in the Michigan case because it's so unusual. You just don't have a lot of sedition cases that come along. There aren't even a lot of cases to study. This is an extremely serious charge, and it's being charged against, to your point, Stewart Rhodes and his associates. Then there's going to be another Seditious Conspiracy trial in the future against a different group of members of a far-Right [unintelligible 00:16:45] group.

Brian Lehrer: Can you describe very briefly how the Justice Department plans to try to prove seditious conspiracy and what Stewart Road's Defense is going to be?

Katie Benner: Sure. The prosecution, they need to show that this was a plan to stop the peaceful transfer of power. It was a plan to oppose the government. They're going to call dozens of witnesses over a trial that could last about a month, maybe a little bit more. They have this trove of text messages that they're going to call from to present using witness testimony and messages to show how the plan was conceived and to show what the point was, which was to keep President Biden from becoming the president. They have some folks who are members of the Oath Keepers who have actually pled guilty already. I'm sure that their information will be used as well.

The government feels like they have a fairly clear path in terms of just the preponderance of information that they have. It's really, really damning and we've already seen some of that in the indictments. The folks talking about how they plan to stop Biden from becoming president. Now, the Oath Keepers defense is really interesting. They're going to say that what they were doing is creating this force in order to follow some signal from former President Trump.

Basically, they're going to say that they created these armed teams with plans to rush into Washington DC because they believe that they were going to be doing so at the behest of the former president himself. That is a fascinating defense in part because, in their defense, they're directly tying the former president to an alleged act to overthrow the government.

Brian Lehrer: But he didn't do it, Trump. Not in the way that they're describing in their defense, as I understand it. They were anticipating Trump was going to declare some martial law and call in some military, and then they were going to be this paramilitary that rushed in and great numbers from outside DC to help secure Congress from certifying a fraudulent election as Trump was claiming that it was but Trump never did do that, and they never did do that part of it. Is that right?

Katie Benner: Right. That's correct. It's so interesting. The prosecutors have already blown a big hole in this defense argument simply by saying even if President Trump had given those sorts of orders, that wouldn't have given them standing to Russia because-

Brian Lehrer: No kidding, they're not part of the US military.

Katie Benner: There are some weak points in the argument for sure but what is fascinating though is how they're trying to draw President Trump in as their defense because it's another way of saying, "We did it because of this guy. If he hadn't let us believe that this is what he wanted, we would not have done it."

Brian Lehrer: Let me take a call from Jim in Manhattan, who I think is going to defend the idea of putting Donald Trump or some of his associates in prison to defend democracy, not just politically discredit him. Jim, you're on WNYC. Hello?

Jim: Yes, hi there. Thank you so much and I appreciate the conversation. In the time of Nixon, this was pure compared to today. They were puritans and now Trump said he could shoot someone on Fifth Avenue and get away with it. They're going to do that evidently. They're threatening violence and there's this, for lack of a better word, this fervent Christian nationalism, which everybody sins will be cleansed because they're doing it in the name of their God. They're saying-

Brian Lehrer: Why do you think that movement would be weakened if Trump goes to prison rather than, as Katie was speculating, potentially, strengthened because they would see him even more as a victim?

Jim: That's possible. It's also possible that they're going to band together either as an insurrection or they'll have power in the government if they win these elections that they're all running for. They're not a stable group of people with whom we can anticipate peaceful transfer of power. They're, they're crazy nut jobs and they want guns.

Brian Lehrer: Jim, I'm going to leave it there for time. Thank you very much. There's part of the debate, Katie, I guess, right? At least in pro-democracy in the sense of thinking Trump would destroy democracy circles.

Katie Benner: Keep in mind, I'm not saying any one of these points of view is correct. I'm not saying Liz Cheney is more correct than the person who just called in, but you're correct in saying that this is, yet this is a counterpoint that there does need to be some accountability under the law specifically. Again, going back to the Nixon example, when Ford pardoned Nixon, it was extremely controversial.

People were just outraged about it because they said he is now dodged being held accountable under the law, which he did, he didn't have to be held accountable. There are people who still think that was not good enough. I do understand why folks are saying that we're in a totally different environment from the '70s. The idea of letting the political process play out alone does not feel satisfying enough, but please keep in mind it did not feel satisfying to people in the seventies either.

This is a big risk and then on the point you made about violence, I think that's really fascinating. The country has gone through periods of intense violence before. I'm not saying that that's good. I'm just saying that in American history, we've seen violence overtake politics, where the political system was not able adequately to address them, contain the concerns of citizens across the country as they fought over what it meant to be an American, who got to have what, who got to be included, who got to have jobs, who got to have opportunity.

We saw a lot of violence in the '60s and '70s too. Again, I'm not saying that because I think it's right, I'm just noting that it wouldn't be the first time, and that part of the reason we want the political system to hold and we want political solutions to work and political solutions to satisfy Americans is so we don't do that again.

Brian Lehrer: We're almost out of time with New York Times Justice Department correspondent Katie Benner. Katie, before you go, let me get your quick take on the Trump Mar-a-Lago documents case, and especially how Trump's handpicked special master reviewing many of the documents seems to not be doing Trump's bidding. New York Judge Raymond Dearie is that special master. Here's what former Trump Justice Department spokesperson Sarah Isgur said on ABC on Sunday that Judge Deaire is doing.

[start of audio playback]

Sarah Isgur: I'm telling the Trump lawyers they need to say in court, and I quote, "Filing that could be sanctionable, whether the president ever declassified anything, whether they actually believe and have evidence that anything was planted at Mar-a-Lago." All the things that Trump has said publicly, this judge is saying, put up or shut up.

[end of audio playback]

Brian Lehrer: I guess as Trump's justice department spokesperson when he was in the White House, you probably knew Sarah Isgur as Justice Department corresponding, but this goes to something that's becoming increasingly apparent. What Trump says on TV and on social media and what his lawyers are willing to say under oath in court about all these documents on his behalf are pretty different from each other, right?

Katie Benner: Yes, and we've seen this happen before with Donald Trump. It's just now he's no longer the president, he's not protected from prosecution and the consequences for him could be immediately negative. Couple of things on this too, I think that the years that Donald Trump was president, he really expected to be able to bend the federal government to his will in ways that were not correct and he thought that was okay.

Even when the American public thought that what he was doing was wrong, we became really used to the idea that he could do it, so when we actually see the government not bend, we see the judiciary not bend, we're surprised because he has so convinced people that he could always pull off this trick, so what's happening with Raymond Dearie should be the rule, not the exception.

This should be very normal. A very professional judge respected by Republicans, Democrats alike, who has handled top-secret national security and defense information, who understands the stakes, asks all parties involved to behave responsibly. That is actually how the system should work. It shouldn't be unusual, but we had a very unusual four years, but keep in mind, this what we're seeing now is much more in keeping with what we saw before the Trump era.

We're returning to a norm, Sarah is correct, the judge is saying, I need you to show me and prove to me in a court of law these statements that you're making. Trump is putting his lawyers in a terrible, terrible situation. He's asking them either to do something that could be a lie or he's asking them to keep him in check and keep him from making these outrageous public statements. These are really no-win situations. I think it's why Donald Trump goes through a lot of lawyers.

Brian Lehrer: Katie Benner, Justice Department correspondent for the New York Times. Great job as always. Thank you so much.

Katie Benner: Thank you.

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