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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Today and tomorrow, Democrats from the House of Representatives will begin their arguments to the Senate and the impeachment trial of Donald Trump as you know, for what they're calling incitement of insurrection. We will have live coverage here on WNYC beginning at noon.

At stake in these impeachment proceedings is whether former president Trump would be allowed to run for office again. That's what's technically at stake. Democrats see larger issues of truth and democracy also in play. If the charge is incitement of insurrection, will the Democrats begin and end on January 6th, or will they try to build a narrative of months of incitement, maybe years, to prepare people to aim for a coup in the streets, his supporters, if the courts and state legislatures didn't do it for Trump themselves? Could this be preparing people for insurrection if necessary in this exchange with a journalist during the campaign on September 23rd?

Journalist: Will you commit to making sure that there is a peaceful transferral of power after the election?

Donald Trump: We're going to have to see what happens. You know that I've been complaining very strongly about the ballots and the ballots are a disaster and--

Journalist: I understand that, but people are rioting. Do you commit to making sure that there's a peaceful transferral of power?

[crosstalk]

Donald Trump: We'll want to have- get rid of the ballots and you'll have a very transfer-- You'll have a very peaceful-- there won't be a transfer, frankly. There'll be a continuation. The ballots are out of control, you know it, and you know who knows it better than anybody else? The Democrats know it better than anybody else.

Brian Lehrer: Whoa, if you never heard that one before, a peaceful transition of power only if he and he alone judged the results as valid, otherwise, by implication, civil war. Remember this when he was asked in one of the debates of course, about his support for the violent white supremacist Proud Boys, he seemed to tell them to be ready for action?

Donald Trump: Proud Boys, stand back and stand by.

Brian Lehrer: You all know that clip. Where might that fit into an impeachment trial? With me now MSNBC, Chief Legal Correspondent, Ari Melber, also the host of his show, The Beat, weeknights at 6:00 Eastern, and probably of gobs and gobs of special coverage in the coming days. Ari, thanks for squeezing us in today. Welcome back to WNYC.

Ari Melber: Great to be back. Good morning.

Brian Lehrer: Didn't we just do this last winter?

Ari Melber: [laughs] I think so, but this one's a little worse, basically.

Brian Lehrer: What do you mean by a little worse?

Ari Melber: Well, I think the last time, you had Donald Trump impeached and on trial for abusing power to try to prevent Joe Biden from beating him in a free and fair election. Joe Biden went on to get the nomination and here you have the second impeachment for Donald Trump, facing allegations of abusing power to try to prevent Joe Biden from taking office in the election where he beat Trump.

It's worse for the reasons that although they have an overlap, we all know that people died at the Capitol. That democracy I think was much more challenged in the events leading up to June 6th, including some of what you just played. Whereas the earlier one, while there was a voluminous evidence of abuse of power, trying to get this foreign investigation of the Bidens, et cetera, it almost looks like a quaint bungled Keystone Cop type of thing, compared to what really went down here.

Brian Lehrer: There is a connection that you just pointed out that I think doesn't come up very much. I wonder if the Democrats might even try to make this in some of their arguments, that Trump was willing to attempt to stay in power by any dirty means necessary. The case in the Ukraine impeachment, as you remind us, was about trying to use US foreign policy to bribe or blackmail the leader of a fine government to start a more or less fake investigation of Joe Biden to help Trump politically in a reelection campaign. Now we come to this alleged incitement of insurrection. There really is a straight line.

Ari Melber: There's a straight line and it goes to the fact that Donald Trump never has been committed to democracy or the rule of law. He didn't claim to be, what you can call a confession or a blunt honesty about a fundamentally deceitful anti-democratic plot, and it's the same with the call. Other presidents, Brian, when there's talk about how he got impeached twice and what that means for history, in any conventional time, other presidents would have been impeached over the leaked Georgia phone call alone, alone, to say nothing of contributing to an environment where we know people would kill at the Capitol.

Brian Lehrer: Remind us of the leaked Georgia phone call, because that is in the article of impeachment, isn't it?

Ari Melber: Yes, it's cited as an example and as evidence. I think what we'll see today, yesterday was really, as many cases begin, with the dry question of does the court have the jurisdiction to hear the case? That's what yesterday was and they found on a bipartisan basis this Senate court does. Today, we get into the actual case in the plot, and so, yes, as you're reminding listeners, the plot was larger than just go storm the Capitol. That was one violent final piece, but the plot was trying to take an election that Donald Trump clearly lost and find a way to override it, to end democracy the United States.

He pushed for the Justice Department that he has some nominal oversight of, although not complete power, at the federal level, and pushed state officials in Michigan and in Georgia where he was caught on tape asking them to "find 11,000 more votes". All of these being part of a plot that drove to January 6th, where he had hoped and again, he meant this, he was dead serious about this. He had hoped to combine all those things together to create enough smoke, noise, or dispute to somehow claim that maybe he did win, or it was too close, and then he could override the electors on the 6th or have Mike Pence do it.

The reason why all of this was a testing point is that if you imagine a slightly different world where Mike Pence did go along with it or more Republicans went along with it, or the Chamber was not able to be secured that night. You can imagine a world where for several days on end, it becomes more of an alive question about what the lawful finish of the certified results would be. What does the military do and all of the rest? Yes, it's dead serious even if people I understand are fatigued or even skeptical about the Senate's ability on a bipartisan basis to do much with this in the coming days.

Brian Lehrer: Listeners, it's not every day we have an Ari Melber sighting here, so if there's anything you want to ask A ri Melber, now's your chance, 646-435-7280. You can leave his personal life out, stuff like that, but anything related to his work, 646-435-7280 with anything you want to say on this day that impeachment opening arguments will begin. It'll be today and tomorrow we expect on the Democratic side, and the defense for the next two days following. 646-435-7280 or tweet a question or a comment @BrianLehrer.

Ari, let me ask you about the question that I posed in the introduction. Do you expect a January 6th focused prosecution or a longer-term one, like going back to when he said, "Proud boys, stand by and stand back," or refused in that reporter's question, or an answer to that reporter's question in September to promise a peaceful transition of power if he lost?

Ari Melber: What we know based on the filings thus far is the Democrats have exchanged several filings as with any other court proceeding with the Trump defense lawyers. There was quite a bit of focus on just narrowly January 6th. What he said at the rally, how he summoned them, okay, come, it's going to be wild on the 6th. You know what I would call the days around that and then other evidence that the Democrats argue is strong to his state of mind that this was his intended outcome and that as it occurred, he was "delighted with it" according to what one Republican Senator said he was hearing directly from people inside the White House.

The video later on January 6th, which ostensibly told people to go home while praising the people who had just violently and criminally stormed the Capitol as very special, we love you, et cetera. That's what their briefs have done. I can't tell you over 16 hours of their allotted argument, whether they will go further back in time. I do think, to give a little legal analysis, I think it is very important for a case like this to give the wider context of whether if you have any incitement case, did the speaker get carried away or go overboard, but that doesn't necessarily prove their state of mind and their goal.

It's very important in an incitement case to give whatever context you can. That's what makes Donald Trump, whatever you think of his politics, those are not supposed to really be under review here. Listeners may like or dislike other aspects of his leadership, but as a constitutional case for abuse of power and incitement, he is a terrible and flawed defendant because he has been so publicly supportive of violence and violent rhetoric, of hurting people, of roughing them up. "I'll pay the legal bills. Punch him in the face. Shoot on Fifth Avenue. I can do whatever I want."

We all know that stuff, which is what I think makes him a weaker and worse defendant than if you had another politician who used some of the same words, Brian, who said, "Fight," or said something that then afterward when there was violence, people said, "Oh, my God, is that what you intended," and they say, "No, I really didn't, and I condemn." This is a different case than that for fairly obvious reasons. That goes to your question of how far back do you go?

Brian Lehrer: Right. Here's one of those clips that you just cited that goes as far back as 2016 at a rally when he said if his supporters saw a heckler holding a tomato--

Donald Trump: If you see somebody getting ready to throw a tomato, knock the crap out of them, would you? Seriously. Okay? Just knock the hell. I promise you, I will pay for the legal fees. I promise. I promise.

Brian Lehrer: Ari, for you as a legal correspondent, is he paying anyone's legal fees who rioted on his behalf on January 6th?

Ari Melber: He is not, Brian. He is not paying the legal fees, he is not doing any of the commitments he made. Indeed at that same rally, to give the force of the excitation, he also falsely claimed he would be there with them, that he would march and physically be at the Capitol. I think some of his supporters we know took him literally in the same sense that we have seen video, including that rather harrowing presentation yesterday that the Democrats showed, of many people chanting and screaming, "We're here at the President's orders," menacing the officers as they break the law and saying, "We're here because your boss told us to be here."

Again, that goes to the abuse of power. Whatever you think of those individuals, and many will get their day in court, some of them at least seem to think they were doing what they were asked of by the most powerful person in government as they entered a government building. That again goes back to whether the ex-president will be held responsible by these other government officials in the Senate because you saw with your own eyes what people thought.

Brian Lehrer: About January 6th, let me play two clips that you used on your show last night. If you're just joining us, listeners, my guest is Ari Melber, Chief Legal Correspondent for MSNBC and host of the show, The Beat, on that network in the six o'clock PM hour our Eastern Time. Two clips that you used on your show last night of Trump at the January 6th rally. These are not the ones that usually get played of him so it was interesting to me that you pulled him. We hear the one, "Fight like hell," we hear, "March peacefully and patriotically," but we don't always hear this.

Donald Trump: We won this election, and we won it by a landslide. This was not a close election.

Brian Lehrer: We don't always hear this.

Donald Trump: When you catch somebody in a fraud, you're allowed to go by very different rules.

Brian Lehrer: That second one, Ari, I hadn't even noticed before until I was watching your show last night. I'd seen the whole thing, but that one didn't jump out at me, and then you excerpted it. It doesn't say, "Go break into the Capitol," but angrily declaring the big lie that the election was rigged, he won in a landslide, in the first clip, and in the second one, suggesting that the angry crowd that he was riling up could play by different rules. Evidence?

Ari Melber: Yes. This is the evidence for the idea that there was a larger plot afoot, that this was not just a tragedy that spun out of control, but rather, the final violent act to physically and literally menace, intimidate, interfere or override with the actual counting of the votes. That's why it was on January 6th. For people listening, I do think that there's an aspect of this where we all take a step back and go, "Oh, right. This was all so blatant and obvious in public. What are we really litigating?"

The quotes you just showed that we've used and that give the wider context is if you take people and you genuinely get them to believe that they are wronged, that they are avenging justice, that they are fixing something, they may still be legally culpable for their actions, but it certainly speaks to why this looked like a more organized plot, which goes to Donald Trump's potential culpability.

It also speaks to where we're headed and why it's very clear that the Founders had exactly these mechanisms to deal with things that would endanger democracy itself. We are in that kind of time, and it's not going to dissipate or go away just because Donald Trump can't tweet or this trial ends however it ends, and in a week or two, because you have what we can measure, what we believe to be millions of people who actually still believe that the rightful president is in Florida, that this was a big lie and a big steal.

They have a lot of other Republican leaders from Ted Cruz and Josh Hawley on down who'd given them validation of that, what psychologists would call third party validation, except it's just all in the same political party, but I'm old enough and I bet you and your listeners are old enough to remember five years ago when Ted Cruz was the one fact-checking and rebutting Donald Trump. That does have a psychological and political impact and I don't think we're done with it because if the society doesn't better patrol this, which includes the Republican Party leadership but there's other vectors as well, then you have what many countries have had throughout the world, which is long-running attacks on the legitimacy of the democratic system that sometimes result, in some places, in strain or the end of democracy. It's as serious as a heart attack.

Brian Lehrer: Brian in Harlem, you're on WNYC with Ari Melber. Hi, Brian.

Brian: Hi, how are you doing, Brian? I had always wanted the House to have a second article of impeachment, specifically for dereliction of duty. I know they've mentioned it and it's in the brief and such, but as a separate issue, it's less open to interpretation. Someone like Hawley or Cruz can always say, "Well, incitement is in the eye of the beholder," but as far as his not doing an inadequate job from, say, 2:00 PM to 6:00 PM on January 6th, there's much more evidence for that.

I was wondering if there's any way that that part of it could be used to-- I know it can be used to support the incitement, but then you have people who can say, "Well, not in my judgment." The dereliction of duty itself is not a separate charge. I was wondering how that affects what goes on from now on.

Brian Lehrer: Ari, you got the question?

Ari Melber: Great question. Yes, great question. I agree. I think, constitutionally, there certainly was the argument for dereliction when you look at what's happening in the middle of the attack. This is also a reinforcement of a point that if people may remember from the first impeachment, which is we're not talking about just random legal concepts like a crime because a president is vested with powers that are different from virtually every other person.

The dereliction during something that was literally an attack on the Capitol, and you can do the thought experiment, imagine if they were foreign terrorists breaching the Capitol, and the president in charge of the federal government didn't respond, slow-walked the response, basically, what Democrats argue is betraying the oath to defend the United States, how that would play.

I think that would also be clearly a standalone article, whether that's for one day or a president who just absconds and just isn't doing the job or isn't defending the country or the military says he won't show up to the meetings. These are thought experiments, but they speak to the fact that even if that's not a 'crime', the way inciting violence is-- [sound cut]

Brian Lehrer: Whoops. Did we just lose Ari's line? There you go. I think we got you back. You were saying, even if that's not a crime as incitement is, were you going to conclude by saying you could almost make a case that being so passive once the riot started on his behalf was a subtle form of inciting?

Ari Melber: I would just say, separately, you can betray office any number of ways. Separate from the incitement, if a president just doesn't defend the United States or doesn't go to Pentagon meetings and won't deal with a war and just stops doing the job, that alone can be a betrayal of office which does not have to coexist with the crime.

The last thing I would say, Brian, is I'm always a little annoyed when everyone on TV is trying to backseat drive everything because we're here to try to add facts and context, hopefully, but I will say to the point raised by, I believe it was Brian in Harlem, the question, the Democrats could have clearly come through with multiple articles of impeachment, which is more the model that was used against President Johnson, to make all those cases. They could have done more than one.

Brian Lehrer: Jessica in Ditmas Park, you're on WNYC with Ari Melber. Hi, Jessica.

Jessica: Hi, Brian. Wow, I can't believe I'm on your show, my favorite show on NPR, on NYC. I don't know if this is relevant, Ari, because you're really talking about the legality, but I'm struck. I was struck last night about Mike Pence, who somehow in the midst of all this, after Trump threatened him and people are screaming, "Hang Mike Pence," went along with the certification of Joe Biden, and considering he was a lap dog for four years and all these Republicans are going along with saying it's unconstitutional to impeach a president. Can anybody explain why Mike Pence, I'm not going to call him a profile in courage because he did the right thing, but it doesn't fit with the rest of his four years of being Trump's lapdog. Can anybody explain this?

Ari Melber: Yes, I mean the short answer is whoever is the "presiding officer" of the Senate, which technically is the vice-president for certain things, but is generally just any other Senator in that role, what they're supposed to do under law and the constitution is make the fair rulings according to the parliamentarian. It's almost always prescribed, it's not a judgment call.

Now, if you imagine again, we're getting into like these movies scenarios, but if you imagine a scenario where a vice-president tries to usurp that role and say they're overriding the election, we don't have precedent on that but I'm very confident that if you took that to court, which is what happens when you have disputes with the political branches, the Supreme Court would obviously and clearly say, well, the constitution says you follow the votes of the country, not that the vice president has one final chance to override everything, that wouldn't make any sense.

I think Mike Pence has done everything he ever could on Donald Trump's behalf and there's reporting that he met with the Senate parliamentarian and his own legal team about this, and assured that it was a dead-end, he decided not to go down in history as a failed attempt at a dictatorial plot. That would be profoundly embarrassing for him in the long run, even if it gave him momentary political heat with those people who ultimately wanted to hang him. That I think is the short legal answer why he just had no other move to make.

Brian Lehrer: Jessica, thank you and I'm glad you got on. Listeners, take that as a lesson. Jessica was so surprised that she called in and actually got on the air. You too can call in. Our lines are full right now, I will say but don't think that's just for special people who get allowed on the air. Call in when you have something to say. Now if the sort of paradox of Mike Pence was what we just talked about, when we continue with Ari Melber in a minute, we're going to talk about the paradox of Mitch McConnell. One difference is the paradox of Mike Pence pretty much over the paradox of Mitch McConnell is continuing and is vital to what happens in the coming days. Stay with us.

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Brian Lehrer on WNYC with Ari Melber, MSNBC Chief Legal Correspondent and host of The Beat in the 6:00 PM Eastern time hour on that network. Ari, something that came up on your show last night was the paradox, the infuriating paradox for Democrats, that it was Mitch McConnell who refused to hold the trial after Trump was impeached in that final week when Trump was still in office. It was McConnell who caused the trial to be held after Trump left office. Now McConnell votes that the trial is unconstitutional because it's taking place after he left office, which McConnell himself caused, it scrambles the brain. What kind of 3D Republican chess is McConnell trying to play with that?

Ari Melber: I think McConnell has been backtracking from his early leaks to The New York Times and elsewhere that he was pleased by this 'cause it was a chance to hold Trump accountable or disqualify him from office and the future of the Republican party. He said that stuff then, I think the most straightforward interpretation is for whatever his reasons were, he said that on the idea that it might come true. It didn't and he completely backtracked to now literally, as you're reporting, voting against even holding the trial which is the opposite of being pleased with the prospect of having a trial and it suggests he will not vote to convict after having suggested that this was, again, according to The New York Times, Mitch McConnell said it was "an impeachable offense".

Brian Lehrer: Let me play a clip of Mitch McConnell that really took a lot of people by surprise I think when, and certainly in the context of the vote that the senators are going to have to take on whether to convict Trump on incitement of insurrection. A lot of people were surprised to hear Mitch McConnell say this just very directly and right out loud on January 19th.

Mitch McConnell: The last time the Senate convened, we had just reclaimed the Capitol from violent criminals who tried to stop Congress from doing our duty. The mob was fed lies. They were provoked by the president and other powerful people.

Brian Lehrer: Wait, Ari, stop me in my tracks. Mitch McConnell just said they were provoked by the president. Did he just vote guilty on incitement of insurrection because what is that if not incitement of insurrection?

Ari Melber: It sounds very similar to me. You can make a narrow legal argument that provocation is somehow different, that you only treat incitement as the formal term. There are other legal things that sometimes play those word games. It's part of what makes lawyers so annoying to everyone else but I think substantively you're right. He said that and he offered that as his true assertion on the Senate floor. He also said it was an insurrection, so he has publicly said Trump provoked the insurrection and now he's running away from it apparently because in the weeks since January 6th, McConnell and other Republicans found that there was a much larger base appetite for supporting this than even they thought, even after all this.

The last quote on that is one of our experts a political guy said, you have to take it in whether you like it or not. A large part of the Republican party has become riot adjacent or insurrection adjacent, by which this analyst meant that when you have this many people supporting or minimizing that, it has become a feature of that party, which dovetails back with the democratic and autocratic concerns I mentioned earlier that I think we got a buckle up for this with or without the ex-president's role.

Brian Lehrer: Patrick in Bloomfield, you're on WNYC with Ari Melber. Hi Patrick.

Patrick: Good morning. Thank you for taking the call. I've read in The New York Times on a couple of occasions that there was a communication from the FBI Homeland Security to the Capitol Police and the DC Police about the potential for violence on January 6th. My question is, do we know of any evidence by which this information filtered into the White House, into any daily briefing or information that President Trump may have known about before January 6th? Thank you.

Ari Melber: Great question. The daily briefing and some of that material is generally classified. While there may be reporting on aspects, I don't think we have a full handle on how much he knew. I think a full investigation, which might continue even past this constitutional Senate trial, will look at what information was socialized and spread in the government and what that means about culpability and expectations, and what organizers of the rally were planning.

If there were cells or groups within the large crowd that wanted to do violence or things we've reported on like zip ties and people were armed and officers have reported actually disarming and confiscating weapons at the site, it could have been far worse. Bombs were found, let's remember, pipe bombs at the RNC and DNC the night before. The whole thing was terrible and could have been worse.

All of these questions about what was known and how high that went it goes to culpability of different organizers and potentially the president. The short answer is I don't think there's been, I haven't seen a smoking gun about oh, two days out he was told it would be this bad and he pressed on. That in a traditional trial, of course, would be strong as well as evidence.

Brian Lehrer: Susan in Ridgewood, you're on WNYC. Hi Susan.

Susan: Hi. I have a two-part comment question. I don't know if you saw Donald Trump Jr. streamed and posted a video of himself and his girlfriend dancing in what he called the command center while Donald Trump was watching on several monitors with his daughter. Now, is that not inciting? Is that not planning, can that be admissible in any way? Also, was there any obstruction from the National Guard to actually come to help everyone? Thank you.

Brian Lehrer: Thank you. Two very separate questions. Ari, I didn't see that exact footage of Donald Trump Jr. and his girlfriend dancing. The caller says that it was while the insurrection was taking place, while the violence had already been going on and they seemed to be dancing while watching it on television, and then that was distributed. Is that your understanding of events?

Ari Melber: I've definitely seen Donald Trump Jr. being encouraging of the whole thing and then positive about it at one point in the day. If you're asking the legal standard, you're unlikely to have a crime or a felony just for celebrating or touting something terrible. Again, the whole concept we've been discussing about incitement, whether that's for Donald Trump or others, would be contributing in a direct and meaningful way under Supreme Court precedent to the act before it occurs.

Having said that, the fact that Donald Trump Jr. saw this as a positive outcome of something he helped plan could go to that larger holistic analysis for anyone, as I said earlier, who was involved on the front end of this and had real reasons to know it was heading a certain direction and they continued. That's the standard concept in conspiracy. If you think you're doing one thing, if Brian Lehrer and I meet up to talk about the show which is legal, and then I start trying to sound him out about helping me do something illegal, there comes a line at which past which he has to walk away or not continue to be a party to that which he has been informed is now an illegal plot. We're not just talking about the show, we're going to do something else. Quote-unquote. That's that.

As for the Guard, there's been a luminous reporting that the president was not helpful, was slowing what would have been the standard emergency response, that Vice President Pence and others were pulled in to resolve that. That the federal government under the Trump administration writ large, according to many accounts, was interfering with and not constructive about planning for what was looking like a mounting threat in the days leading into it. Again, that's an after-action report. That's not typically rising to the level of a crime, but it speaks to the problems of that day.

Brian Lehrer: Ari, you got my producer very upset with that answer implicating me in your crime-

Ari Melber: [laughs]

Brian Lehrer: -just because I didn't walk away. Before you go, do you want to take off your legal analyst hat for a couple of minutes and try on a political analyst one and tell us if you think there's any path to the 17 Republican votes needed to convict? Because as I think just about all the listeners know, this ultimately is not a trial in court. It's not a criminal proceeding with jurors who are just going to judge the evidence on its merits. They are politicians who are elected and are probably going to do more or less what they think their constituents would support and they only got six yesterday on the issue of constitutionality. Do you see any potential path to 17?

Ari Melber: It's a great question. I'm happy to do that. I used to work as a junior aid in the United States Senate and were analyzing what the Senators are going to do. Historically, impeachments have always been quite partisan. The Nixon example was an exception that obviously ousted him before it got to the vote, but it was the votes of his own party that convinced him to leave the White House. The Clinton and Johnson and previous Trump impeachments were all fairly partisan.

What I would note is, by that scale of every other one in history, this one has already become more bipartisan. I understand people want to look at, well, is there enough votes to convict, and six votes yesterday being open to joining the Democrats is not enough to convict. Having said that, having a member of Republican leadership vote to impeach by Liz Cheney in the House is a first. The number of House votes of the president's own party is a high watermark. The six here are more than the Ukraine impeachment, at least if you look at them as a proxy for being open to convicting, and that's what I think they are.

We're already moving in that direction. Then when you get up to the supermajority, well, it's a high bar on purpose because the Founders wanted it to be very difficult to do and to only be probably overwhelmingly bipartisan. Because it's a fast trial the way it's been scheduled and because much of this has already occurred in public, it does seem like it would take a lot to quickly move 11 Republican Senators. I get where all that's coming from, but our job is to mostly wait and see and follow what happens in the coming days. It's always possible that things could change or things could be revealed, but that would be my basic and somewhat boring answer.

Brian Lehrer: Ari Melber, never boring, hosts The Beat on MSNBC 6:00 PM Eastern, Monday through Friday. He's their Chief Legal Correspondent. Thanks so much for giving us some time on what I know will be an almost endless day for you. Thanks a lot.

Ari Melber: We'll keep an eye on it. Thank you, guys. Thanks for having me.

 

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