Speaker: We are entering a critical stage of our investigation. We've now taken the testimony of hundreds of witnesses with knowledge of the events of January 6th, including more than a dozen former Trump White House staff--
Steven Valentino: The House Select Committee investigating the insurrection has been on the case for the better part of a year. Just in the last week, we've learned that the White House call log show a mysterious gap of seven hours on January 6th. A federal judge issued a major ruling in a case related to the committee's work, in which he stated that President Trump likely committed a felony in attempting to obstruct Congress.
The Select Committee itself has produced some stunning revelations already, but time is working against it. If the Republican Party gains control of the House in this year's midterm elections as they're predicted to do, they're almost sure to dismantle the effort and take any idea of accountability off the table.
To get a sense of what all this means, I called on two colleagues. Amy Davidson Sorkin, who writes regularly about politics, and Jeannie Suk Gersen, who covers legal issues and is a professor of law at Harvard. Jeannie, how would you describe the stakes of what the committee is trying to learn here, and who's listening?
Jeannie Suk Gersen: I think that history is listening, and the stakes really are to piece together a narrative and to tell the true story of what happened. That is the purpose of this investigation. Of course, we know that there are criminal charges going on in criminal indictments. We know that there are potential executive privilege cases being litigated in our courts and also just paper documentary evidence, and emails, and things like that. All of that is coming together in this one large explosion of potential accountability.
It's both important to parse those things as very separate legal phenomena, but at the same time, of course, they all are getting at the same thing, which is, what is the truth of what happened on January 6th? That is exactly the question that is so central to the divisions in this country.
Steven Valentino: Amy, what do you think?
Amy Davidson Sorkin: Some of the most important work the committee has done has been to litigate privilege claims, executive privilege, lawyer-client privilege, brought by former President Trump and his associates. One of the turning points in the committee's investigation into January 6th came this January, when the Supreme Court turned away a fairly outlandish privileged claim brought by President Trump to trying to block the release of documents from the National Archive. He lost eight to one.
Some of those documents had been torn apart into little pieces and put back together by the National Archive. In a way, that speaks to the work that the committee is doing trying to tape back together something that's still being torn apart.
Steven Valentino: About two months ago, Jane Mayer published an extraordinary piece in The New Yorker about Ginni Thomas, the wife of Supreme Court Justice, Clarence Thomas, and her political activities, her relationships with far-right figures in Washington. It was incredibly revealing and it suggested that, perhaps, Supreme Court Justice Thomas was wrong in not recusing himself in various cases.
Then comes the news that Ginni Thomas was texting with Mark Meadows, the White House Chief of Staff, and the content of those texts were quite remarkable. What jumped out at you about that recent reporting?
Jeannie Suk Gersen: What jumped out at me most strikingly was the fact that this wasn't just expression of opinion, all of us text with friends to express our opinion at what's going on, this was really action. It was urging Mark Meadows to do something to have the election results of 2020 overturned. Now, on the conversation about her relationship to her husband, Justice Thomas, I think that's a really interesting one, on which I have some complicated feelings because she is the spouse of a Supreme Court Justice. That's obviously why the story was so revealing, and explosive, and important, her spousal relationship. She wasn't just any other activist in this space.
Justice Thomas, of course, as Amy mentioned, has already made a decision as a Supreme Court Justice on a very relevant case about January 6th, the one involving National Archives records. In that way, it does seem quite problematic, and it's very good that the public knows that this happened. Now, whether there are other steps that should be taken, like Thomas should now recuse himself from any case that could potentially come before the court, I don't know that that's really-- I think we have to think carefully about that. Honestly, spouses, obviously, many of them have jobs, and sometimes there are two career couples and sometimes there are people who are married--
Steven Valentino: We hear that on Fox News, especially lately that this town, meaning Washington, that deathless phrase, "This town is filled with couples that have careers that overlap in some way, politically, and this is just yet another one in the District of Columbia. Is it just yet another one, Amy?
Amy Davidson Sorkin: I think the middle ground in terms of what Jeannie's talking about between automatic recusal and shrugging and saying, "This is just how Washington's a strange place," is transparency. Is it possible for a Supreme Court Justice to sit on January 6th cases after his wife has texts, mind you, to the White House Chief of Staff, not just to anybody, expresses these extreme views? Let's talk about that. Let's talk about it.
I think what's not a hard question for me is that it should be laid in front of the public. It's also telling in terms of where the Republican Party is. She wasn't just saying, "Let's try to do something," she was referring to conspiracy theories. It was quite extreme. That's revealing too.
Steven Valentino: Now, Jeannie, a federal judge recently ruled in a civil case that Trump had likely committed felonies in trying to overturn the election. The judge described Trump's plan as, and this is quite a quote, "A coup in search of legal theory." Can you talk a little bit about the origins of that case and how it's significant?
Jeannie Suk Gersen: Yes. This is the case of John Eastman. He is an attorney, former law professor. He was an advisor to President Trump about the 2020 election. He had a plan that he outlined for the Trump team as to how the election results could be overturned by essentially having Vice President, Mike Pence, reject the election results. He was asked by the committee investigating to turn over documents, and he said, "No, because attorney-client work privilege and attorney work product is protected."
Essentially, it is true that if say, you have an attorney and you commit a crime in the attorney's presence, like conspire to rob a bank, or you just conspire with the attorney to rob a bank, those are not going to be protected by attorney-client privilege. There's an exception called the crime-fraud exception. I'm very heartened that this judge put this out there, that it's not simply just like, "Here are some legal options that we can talk about." There is a line between advising your client about legal options and actually urging or advising people to do something that breaks the law.
Steven Valentino: What can we say about the committee's tactics and strategies so far, Jeannie? Some have called them very aggressive, pointing out that the committee is using techniques often used by federal prosecutors against the mob, against the mafia. In what ways are they using similar tactics to how the mob was prosecuted? Is that at all fair?
Jeannie Suk Gersen: It's fair. The characterization is fair. Also, it is fair for the committee to use those techniques. Both sides are fair in the sense that, well, the mob is very difficult to investigate because they stick together and they don't snitch on each other.
Steven Valentino: Well, they used to. They used to.
Jeannie Suk Gersen: [laughs] Right. That's the difficulty, that you're facing a bunch of stonewalling. Now, we've lived through years of stonewalling by Trump's associates in congressional investigations and otherwise. It is appropriate when you are dealing with people who are hostile to being investigated and not cooperative, to then turn to techniques that are tried and true to get information.
At the end of the day, this is about producing knowledge. If in the process of producing knowledge through an investigation, they come up with some evidence that is criminal, evidence of criminal conduct. What are they supposed to do? Not refer to DOJ for investigation? That would be absurd.
Amy Davidson Sorkin: Just in the last few days, there's been a development involving Mo Brooks of all people. The Alabama congressman, who was a full-on stop this deal, was endorsed by Trump in the Senate race there, and now has been unendorsed by Trump and has been talking about how Trump wanted him to rescind the election.
He's heavily hinted that he might be willing to speak to the January 6th committee and that's where you go back to the mob analogy. We're dealing here with people who are not the most restrained in their thinking and their actions and can be affected by delusions of grandeur. People like that often fall out with each other and when they do, it can be to the benefit of investigators and prosecutors. We may find that it is now.
Steven Valentino: I want to ask you both a very broad question and maybe the question that is on everybody's mind. Donald Trump was impeached twice and he was not convicted in either case. We knew that was going to happen because of the composition of the Senate. Now, Alvin Bragg, the Manhattan DA, seems to be backing away from any criminal prosecution. This committee, well, establishing a historical record and that's important, is in danger of not having a criminal referral for Donald Trump and time may run out on it completely because the midterm elections are fast upon us in November. Amy, do you think that Trump will get off in legal terms scot-free?
Amy Davidson Sorkin: There's an important player in that question and that's the republican party today. When we talk about the verdict of history that matters. In the shorter term, does the verdict of Republican primary voters who might be deciding whether they give him another shot, and they're influenced in that by Republican Party leaders. Are they shocked by what they're learning or by what they remember having been there on January 6th?
What are they saying to their voters, to the people who've elected and trust them in many cases? He got away with it. What does getting away mean in this sense? Will he get away in terms of how we remember him or in terms of what powers we're still willing to give him? That includes the power to influence the Republican Party. It's within the reach of the Republican Party to have a say in that.
Steven Valentino: Jeannie, same question.
Jeannie Suk Gersen: I think that the question of whether he is going to get away with it just cannot focus so much on criminal consequences for Donald Trump, they're just not synonymous. I already think that Donald Trump hasn't gotten away with it. Look at all of the different investigations that are affecting him, in New York, and in Congress, and elsewhere. There are many different avenues for bringing things to light.
Ultimately, he's not getting away with it if we bring to light the truth of what he did. That doesn't mean he's got to be criminally convicted, which is a very, very difficult thing to do in any event, and certainly, of a former president. It's not even clear that it's in our country's interests to have a former president be criminally convicted after he leaves office.
Steven Valentino: Why do you say that?
Jeannie Suk Gersen: Because, first of all, we are having these debates about accountability, but we also know that in this country, every move that the committee that's investigating January 6th, every time they do more to bring accountability, half of the country thinks this is illegitimate. It is not actually clear that having Trump being convicted of a crime is going to change that in a direction that is productive for the continuation of our democracy in a way that could possibly repair things.
Amy Davidson Sorkin: I very much agree with Jeannie. We have ballot boxes, we have Election Day, and we have a problem with Trumpism not just with Trump, personally. There have been ideas thrown around about, "Oh, maybe if there's a conviction, maybe we could just disqualify him from running again." I strongly believe that that's not the answer. This has to be accomplished by democratic means. Ultimately, it has to be done on Election Day.
Steven Valentino: Amy Davidson Sorkin writes about politics for The New Yorker. Jeannie Suk Gersen writes about the law.
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