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Robert Ray
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Robert Ray
Robert Ray served as a member of President Donald Trump’s legal defense team during the president’s first Senate impeachment trial in 2020. From 1999 to 2002, he led the Office of the Independent Counsel, during which time he investigated and issued a report on the Whitewater controversy.
This interview offers perspective and legal analysis on the four-count federal indictment against Donald Trump. The former president has pleaded not guilty to all four counts.
The interview was conducted by Kirk Documentary Group’s Mike Wiser for FRONTLINE on Oct. 19, 2023. It has been edited for clarity and length.
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The Indictment of Donald Trump
What's your reaction when you hear news that the former president of the United States has been indicted?This is the so-called Jan. 6 indictment.He's been indicted for acts while he was in office.It's a pretty unprecedented moment.What's your reaction when you hear that news, when you first read the indictment?
I think the first reaction, anybody's first reaction, and also the same reaction as a former prosecutor, is that it is unprecedented.We are traveling in uncharted waters.So you can use all of the experience you have and impressions that you have, but it's obvious that there will be surprises along the way.No one really knows how this is going to unfold, when it's going to unfold, and what conclusion there will be when it's all over.And I think anybody who thinks they can safely predict that is dreaming.
And when you read through the case and you see that the three conspiracies that are alleged in that indictment, do they seem unusual to you or unexpected or sort of what you would have expected from the special prosecutor?
I think the most notable initial reaction based upon just the charges themselves is that they did not travel down the road of insurrection, which I think was the invitation that was out there, both by the committee in Congress—I think there was a public perception and expectation that that would be the road that the special counsel would travel, and that didn't happen.So that was my first reaction.
The charges that were actually brought I don't think are hugely surprising.But it was a significant walkaway, at least in my judgment, from what had been contemplated.And I think—I mean, I don't know; I haven't spoken to members of the committee directly, but I think that was the invitation, frankly, that the committee gave to a referral for prosecutors to determine whether or not to bring charges.
And the timing of it, the indictment comes as he's a candidate for president, before he's secured the nomination.It really is an unprecedented moment, the confluence of politics and criminal law.What do you make of that?
Well, that's an unavoidable collision with the political process.I mean, you know, at this point, it's not really appropriate for me to talk any longer about whether or not I think this was a wise exercise of prosecutorial discretion, which I don't.I think the country is going to rue the day that we traveled down this road.
But you know, from the perspective of where we go from here, that's not a useful conversation any longer.The only way to tame the poor exercise of prosecutorial discretion is for Donald Trump's lawyers and for a jury, ultimately, if not a judge, to decide that the case doesn't have merit.That's ultimately the only way that prosecutors are given the brushback pitch, so to speak, meaning that if there's a judgment made about whether there was untoward exercise of prosecutorial discretion, it's up to either a judge or a jury to make that determination.There's nothing you can do at this point now that the prosecutor has brought charges, if you're Donald Trump and his lawyers, other than beat them.
But you did think that it wasn't a proper use of prosecutorial discretion. Why?
Well, I think it lands us right in the middle of a presidential campaign.It is unavoidably going to be tainted with the appearance of politics at play.Obviously, that's the card that Donald Trump will play.I understand that there are people in this country who have mixed views about whether or not that should be or shouldn't be, and there's obviously a huge public sentiment in the view that no person should be above the law, and it shouldn't necessarily matter that there is interference with the political process.
You know, 70 million people who voted for Donald Trump, I think, might well differ with that.He's likely to be the nominee of his party, and he's going to find himself, at least as currently scheduled, with trials that could well take place before the election.I have my doubts about that as well.We can talk about some of the reasons why, in connection with this case, that the current trial date is not likely to hold.
But in any event, I mean, it's a rather extraordinary thing when you think about it, to be in the middle of a campaign season, to be in or around Super Tuesday of 2024, and you're going to have a major presidential candidate who's expected to be, and will be required to be, in court facing trial for the better part of, you know, give your best estimate of how long this trial will take—two weeks, three weeks, four weeks, six weeks?That interferes with the political process.
There are those in this country that don't think that's a problem.There are those in this country, I think probably evenly divided, who do think that's a major problem and that it necessarily interferes with the exercise of the right to vote for the candidate of your choice if the candidate of your choice is in the dock facing trial on felony charges in the middle of a campaign cycle.
The point that you're making there is not about whether it's a good case or not, because the rule-of-law people, as you said, would say, if he sees a crime, he should charge it, no matter what the calendar is, no matter what the political—but you think that there are other considerations than whether [special counsel] Jack Smith concludes, “I think there was a crime here.”
Right.And that's the exercise of prosecutorial discretion.Should this case have been brought in 2023, knowing that that's exactly what was going to happen and you were going to dump not only this case but the other the three cases right in the middle of an election cycle?There are obviously countervailing arguments, including statute of limitations and other things.And I think everybody seems to understand the possibility at least that if Donald Trump is elected president, this case goes away.I mean, he has the authority if he's the new president to direct the attorney general of the United States to dismiss the charges at whatever stage the case is at that point.It may be pending sentencing.It may not have yet gone to trial.It may be on appeal.
But I think there's one thing I can guarantee for sure.There's not too many things I can guarantee for sure, but one of the things I can guarantee for sure is that this case, in whatever form it's in, will not be final by November of 2024.That much I am sure of.And if that's so, what that means is that if he is the new president and has been elected, he can dispose of it.My view of that is that—people always ask the question, well, are you saying that he can pardon himself?It doesn't require that he pardon himself; he has the full power under the Constitution with all the executive power to dismiss the charges, and there's not anything anybody can do about it.No judge can do anything about that.That's the end of it.He just pulls the plug on the charges.
I mean, in a way you're saying it is—that the final say is not going to be the jury or the judge; it's going to be the American people in the election, assuming he gets the nomination.
Well, that's the way I would like to view it.I understand also that there's not a unanimous view on that.I tend to rely on where you go to first principles, Abraham Lincoln: “patient confidence in the ultimate justice of the people.”That resides with the voters.That's where I think this belongs.I mean, if he's no longer the president and he's not a candidate for office, and this is over, have at it; prosecute him.That's what we mean by no person is above the law.
But, for example, right now, the former president has a motion pending before the District Court in the District of Columbia claiming that he is immune from criminal process with regard to these charges which involve his official acts as president of the United States.There's case law from the Nixon era that say that this extends to the “outer perimeter” of his official responsibilities.It seems to me that's a pretty substantial motion.
It may not have merit in the view of the government, and also, more importantly, the judge.But that immunity defense, I can tell you, is one of those very few and rare issues, like double jeopardy, that is an appealable order, even while a case is ongoing, meaning before it is concluded.
In the criminal process, generally speaking, defendants don't have appellate rights until there's a conviction and a sentencing, and the case then goes up on appeal to challenge all possible errors that occurred from the indictment on forward.Immunity and double jeopardy and those kinds of defenses, where the defendant would actually suffer harm if there wasn't an appeal, since the whole point of immunity is that you're not subject to indictment or prosecution and trial, that is an issue that will necessarily, no matter what the outcome, will be appealed to the United States Court of Appeals for the D.C. Circuit.
And it won't end there.It's likely also, whatever the decision in that court, that a petition for certiorari will be filed.Again, even if the president loses, my guess is that he will file a petition, and that is going to take time.
So I guess that was my sort of my back-ended way of saying if anybody thinks this case is actually going to go on the current trial schedule, I think that's unrealistic to think that's the case.Now, is it possible that all those proceedings could be expedited and make their way through the District Court to the Court of Appeals to the United States Supreme Court and allow for a trial prior to November of 2024?That's certainly possible, but I don't think that the current trial date is likely to hold for that reason.
The January 6 Committee
… What did you think of the [January 6] Committee?Obviously it didn't have members appointed by [Rep.] Kevin McCarthy, and it has unusual hearings; it uses video testimony for the first time [in] prime time hearing from some of the top Trump officials—[former U.S. Attorney General]Bill Barr, senior campaign advisers.When you watched the hearing or read about it, what was the reaction you had to how it was run to what they were doing?
Obviously it was not—I don't think really by any large stretch can you characterize it as bipartisan, so it strikes me—and this is, I guess, a consequence of bigger issues about the evenly divided country that we're in and extreme partisanship and all the rest in the political process.I think the wonder and the genius of what happened during the Watergate era is that the reason that [former President] Richard Nixon ultimately left office and faced prosecution is because it was a bipartisan effort to essentially showcase for him and the American people that they had had enough and that the conduct wasn't going to be tolerated, and that there was a political judgment made.But that political judgment, in addition to the legal judgments, was one that was, in the best sense, bipartisan and, with regard to the prosecutorial judgments that were made, nonpartisan.
I think we've reached a point in this country where we seem to think that every problem out there is one that a federal prosecutor or a state and local prosecutor should resolve with criminal charges.I don't happen to be one of them, and I think that if you pin your hopes on that, I think you're going to be, at the end of this process, sorely disappointed.
But having said that, we are where we are.They were duly constituted.I don't particularly think that it was a special effort on anybody's part to make it bipartisan, which would have lended itself to more public credibility.But, you know, that's what happened.I guess that's the environment that we're in.And I guess those on the other side would say, “Well, yeah, but that's the best that we could do, so get over it; live with it.”OK, get over it; live with it.But that doesn't change the fact that I think at the outset it undermines, I think, bipartisan universal acceptance of their judgments.
And then once a referral is made, I think that's viewed in the political context as being a political act, unavoidably, based upon how the special committee was constituted. …
… Let me ask you one last question about the January 6 Committee, which is, maybe as a lawyer, somebody who's had to make arguments for a jury, when you watch it, the power of seeing Bill Barr come up on video and … the way they used video clips, the way they used testimony, what did you think of the case that they were making and the way that they were making the case?
Well, I think I think, first of all, yes, that is testimony under oath, but understand, I think importantly—and it's important for Americans to remember this—none of that testimony was given under cross-examination, so you were getting a one-sided view from the perspective of political actors in the political process asking questions and having a witness respond under oath.
I think you should assume, therefore, that that testimony may not look exactly the same when it is under oath in a criminal case without cameras in the courtroom under cross-examination of President Trump's lawyers.That will have a very different look and feel about it.I don't know, in terms of an evaluation of that evidence by a jury, how that will be different, but the point is, it will be different.
That's going to be a good segue then into talking about some of these points, because that's what we don't have, right?We have what the committee presented; we have what the indictment is.We don't know yet what the defense will present for some of these moments, for some of these pieces of evidence.
So it will be both the president's defense, if he chooses to put one on—he, obviously, under the Constitution doesn't have to advance a defense, and he doesn't have to take the stand in his own defense if he doesn't want to.But part of the defense also, not just the defense case to the extent he presents one, but the defense case is also, in the course of every criminal trial, most people don't see these things, but you present a case by virtue of your cross-examination, the defense cross-examination of the government's witnesses.
So let's just take some of these moments of evidence that end up in the indictment and are in the January 6 Committee.They start the story, they say, election night.Trump had been told by his senior advisers that it was too early to claim victory.There hasn't yet been clear evidence; you know, there's not the specific allegations of fraud at that point.[Trump lawyer] Rudy Giuliani is allegedly, by some of the accounts, intoxicated, is encouraging him to declare victory.And the case that they're making is, well, this shows—this goes to his state of mind.This shows that everything that followed later was the president sort of manipulating this, falsely claiming that he'd won the election, because he was claiming he won the election even before he had the evidence of it.How do you evaluate a moment like that as a piece of evidence in the case against the former president?
Context.Al Gore thought he won the election, too.So what?I guess my reaction to that is, I'm wondering—I understand it makes a nice sound bite and to have videotape, a presentation with regard to any and all of that and the evidence about Rudy Giuliani's intoxication and all the stuff that I guess people love to chase down.My first reaction to that is OK, so a candidate thought he won the election.What else is new?I don't find—you’ve got to be careful about trying to turn that into criminal intent.
And understand, what flies for persuasive testimony before a congressional committee without the benefit of cross-examination and without the requirement that a jury, after all—this is the thing that you have to keep coming back to.In terms of resolution of criminal charges against the defendant in which he is subjected to the possible penalty of going to prison, our system requires that a jury of 12 unanimously—meaning all of them, all 12 of them—find the defendant guilty beyond a reasonable doubt.
So if the evidence doesn't stack up to a finding that the president did something with regard to intent about the election results, that is an element of the offense that a jury can actually find persuasively, unanimously, beyond a reasonable doubt, then it's really not worth a whole lot.Again, you know, as juries are instructed all the time, it's nice that the indictment contains all of these allegations.That's what they are, ladies and gentlemen; they're allegations on a piece of paper.They're not worth jack doo-doo, OK?They're not worth anything until you—unless and until you decide that they're sufficient beyond a reasonable doubt to prove all of the elements of the charge that the government has brought.
So when I hear that, that's sort of the mode that I'm thinking, both as a former prosecutor and also as a defense lawyer at a criminal trial.
Proving Intent
And aside from the constitutional issues, on the criminal law issues, is this the hardest thing for the prosecutors to prove, to win over a jury, which is the state of mind of, the intent of the president for these actions?
Yes.As I think anybody will tell you, in white-collar cases, unlike other cases, drug cases and some other things where intent is almost, in some sense, once you prove the act, it's almost self-evident, in every case like this one, in these areas, intent is the whole ballgame.The jury is making an evaluation of that.That's the most difficult thing to prove.Not impossible, but it is the most difficult thing to prove.
So as the case goes on, as you know, the indictment, the Jan. 6, what they say is after Election Day, very senior campaign officials tell the president, who he—these are people who he chose—that they can't find the fraud, that they can't find the allegations, that there's nothing there.He is hearing from Rudy Giuliani, and some others, claims.And the way it's portrayed is there's one Bill Barr refers to the “clown car” group and then there's the other group which is called “team normal,” and that that part of where the conspiracy really starts is an intentional decision to reject the advice of the more sober group of his advisers.When you look at a moment like that, how do you evaluate that evidence?
I think part of me always thinks that you're not any better able to prove that there was no fraud in the election as I am able to prove that there was fraud in the election.And if a president came back in response to however many advisers came forward to say, “We haven't found it,” what would be so—I don't know what the evidence will be at trial, but suppose the president's reaction was, “Well, you haven't looked hard enough.You say you haven't found any, but—“
One of the difficulties about elections—I guess this is somewhat of a side issue, but election cases are always very difficult.The difficulties are, the election takes place in November, and all of these activities are a lead-up to when—everybody seems to understand there's sort of the point of no return when the election results are certified in the Congress in January.That doesn't leave a whole lot of time, right?You're talking about two months.Finding evidence of fraud is not such a simple thing.And then of course you have the added texture that you have to find evidence that would be sufficient to change the outcome of the election.
I think most people, election lawyers know, it's one thing to talk about a handful of votes, maybe, you know, something less than a few hundred.It's another thing to start talking about changing and determining that the results of the election would change as a result of finding fraud that would be thousands of votes.
So I think there's all of those elements in that.But remember, President Trump's also a candidate, and it's not—would be not unsurprising for a candidate to have a reaction about, “Look, this is very, very close.I don't believe that these results are accurate, and I'm determined to find proof that I'm right.”
I guess the question is, how far can you—this is what I think a jury is going to have to evaluate as a matter of intent.How far can you go in that?I understand, maybe a jury will be able to easily dismiss certain people who were giving the president advice that the jury determines are not credible and that President Trump should have dismissed them.But again, it will be a reflection on the jury to take a reflection on Donald Trump's intent about, you know, was it appropriate—and allowing for, in a criminal case, that a defendant could still be wrong, and could still be mistaken, and could even be exercising a serious error in judgment without actually falling into the trap of being criminally liable and responsible for that conduct.
I understand those are all sort of gradations of degree, and I think those are very hard calls.And I think what you're going to see is I think those kinds of issues will be explored in a different context at a criminal trial through cross-examination that you have not yet seen before with regard to the experience of going through the January 6 Committee.
Is it enough for him to believe it in his heart of hearts?Just to give another example, Bill Barr, the attorney general of the United States, has had—the FBI has talked to U.S. attorneys; he has the entire apparatus of the DOJ; he's announced he's going to investigate these claims.He comes to the president; he says, “We have looked into them.The FBI has looked into them.I have talked to the U.S. attorneys.There was not substantial fraud that would have changed the outcome of the election.”On the other side he has Sidney Powell, who I gather he has—some testimony said he feels she's out there, might be a little bit “crazy.”1If he really believes her because he doesn't want to admit that he [lost] and whether that's a cycle, is that enough of a defense?
Yeah, I don't think so in the extreme.But I think, to put it, turn it around another way, I don't think—I think the president would be well within his prerogative if the attorney general says, “I don't find anything, and the answer is no,” I don't think the president has to accept that, just with regard to anything else that the president receives.The secretary of defense says, “We should attack.”That doesn't mean that the president of the United States, who ultimately is responsible for making that call, goes out and attacks.He receives advice from all different quarters.Some of that advice is awful; some of that advice is good.There's a mixture of things; you get all kinds of advice.Part of being in the job is being able to separate out the advice that's nonsense from the advice that you actually have to listen to.
But ultimately it's the president's call.Again, this is why we're in sort of a never-never land here.This is not your ordinary criminal defendant, right?Your ordinary criminal defendant is not the president of the United States, entrusted with all of this executive power to make judgments about what he thinks is an appropriate course of action.We only entrust two people in the country, through an election, with that kind of power: the president or, as an alternative, the vice president should the president become incapacitated or, for whatever reason, can't serve in office.Those are the only two people in our system that are elected by all the people of the United States.Nobody else.That's it.
So when you put a president on trial, it's going to come with all of those things built into the equation.He doesn't have to agree with the attorney general.Maybe a lot of other people in the United States are bound by what the attorney general says.The president is not.
But is there a limit to the reasonable—
I think that's the right question, and I don't have a clear answer for that.I don't know the answer to that.I do think that there is a limit to that.I don't know how far that extends.I think that's going to be a very difficult question for the jury to struggle with.And I think, even in the first instance, I think that's going to be a very difficult question for the district judge to struggle with in jury instructions that are given to the jury to help them evaluate how to deal with that, just what you're talking about, just that kind of evidence.
I think there's got to be room—my own view; the American people will make their own judgment about whether I'm right or wrong about this.I think there has to be a pretty wide berth for the president to have the ability to be wrong.But it is not unlimited, and where exactly that line falls, I don't really know.I don't think anybody really knows.We've never traveled this road before.
… But the bar might be higher than it would be, say, a CEO in a white-collar case where an expert had told him something and he says, “Well, I don't believe smoking is harmful,” or whatever.You think that the president is due more leeway.
And I understand the counterargument.The first thing someone's going to say in response to that: “Well, what you're saying then, Mr. Ray, is that the president is above the law.”No, that's not what I'm saying.The president is not above the law, but the unique aspects of his office and the powers that he commands on consent and the will of the American people count for something, and it means that you treat presidents differently than you would treat anybody else.
And if people say, “Well, that's not right, and that's not fair, and that's not consistent with the rule of law, and that's not consistent with the principle that no person is above the law,” I guess my response is—I mean, I hate to say it, but, you know, get over it, OK?That's just life.That's the way it is.That's our system.The president has enormous power.Get over it, OK?And he's got to be able, consistent with the duties of his office, to be able to operate, generally speaking, without a whole lot of constraints.Now, he is constrained, like we all are, by the law, but the law is applied to him—it can't be so onerous that the president's response to his attorney general or somebody providing him advice like, “No, Mr. President, there's no fraud,” it can't be, “Well, jeez, I guess I have to accept that at face value and just stand down.”That can't be the answer.
Now, as to how far that extends out, I grant you that it is not unlimited.How far that goes I think is something, again, for a judge in the first instance through jury instructions and a jury to decide.
And is it clear that all of this—you mentioned what the defense has filed.Is it clear that all of this is somehow part of the president's job or that he's due that deference as the president?The prosecutor is saying this is outside of his—I assume they're going to say this is outside of his realm as president.He was trying to overturn an election, and that's not part of the oath.
Well, I think they're going to try to make it entirely personal.President Trump is acting the way he's acting not really as a president of the United States but entirely as Donald Trump, the person who is after the prize, which is reelection, and will do anything, legal or illegal, in order to obtain it.I think a fair approach to this, and I imagine one that the defense will present, is, take Donald Trump out of this.Suppose that there was a disputed election, and suppose it was a member of his own party, you know, whether Mike Pence or somebody else who was running for president, and it was a disputed election and Donald Trump's the president of the United States.You don't think he would have the authority and the discretion to wade into the election results to challenge them where he thought appropriate, even if it was to the benefit of his candidate but not him, not Donald Trump himself?
The president has those powers.So how are you going to separate out that, those—the perquisites of the president as president as opposed to the president as Donald Trump, the candidate for office for president?And I think those are going to be things you have to tease out.I don't think it's true, as the government may well present, that this is just about Donald Trump as Donald Trump the individual, not the president, who is trying to capture the office of president of the United States through illegal means.The president has authority, and he would have that authority even if he weren't the person who was the candidate to investigate and to look into election results, even if there's a self-interest there, meaning that the candidate of his choice is one of the candidates, just not him.
Trump’s Choice of Lawyers and Advisers
One other issue: The beginning of this conspiracy, as the government alleges, is actually who he's choosing as a lawyer, right, is to choose Rudy Giuliani, who is a co-conspirator according to the indictment, who is a co-defendant in the Georgia case.For the president—and there's a number of lawyers who are involved in this along the way—for part of the criminal case to be this decision to choose these lawyers, to have them part of the case as listed as co-conspirators, how do you analyze that as part of the case against the president?That he took these lawyers, he used them as part of a criminal conspiracy that he was leading, is I think basically what the allegation is.
I suppose my first reaction—well, is it any surprise that the president would choose lawyers that are consistent with his view of things?I mean, people make decisions about lawyers all the time.It's not surprising that the views of the lawyers often adopt the views of the client.Not always.And lawyers have independent obligations to play it straight and obviously not do anything that's contrary to the code of professional conduct and the constraints of the criminal law, just like any other American.
But on the other hand, what is a reality of the case that has been brought, not necessarily by Jack Smith, but, you know, Rudy Giuliani is a defendant in another criminal case, so the fact is that, absent some kind of a decision to grant Rudy Giuliani immunity, you're not likely to hear from Rudy Giuliani as a witness at trial to defend either himself or to defend the president's conduct, because he's likely to take the Fifth Amendment, and the government is not likely to grant him immunity, which means that he is essentially precluded from being a witness.So you're not going to hear from him.
And I think the same is true with regard to Sidney Powell, right?If called as a witness, what would she do?She'd have to take the Fifth Amendment.Absent a grant of immunity by the government—and only the government can grant immunity—she's not going to be a witness at trial because of the Fifth Amendment.The jury is never going to, of course, know anything about any of that.Those witnesses will simply not be part of the government's case.
The statements the president, the former president has made since—he went on Meet the Press in September, was asked about this specific thing, like why did you choose these lawyers over others?And he's pushed in a back-and-forth, and he says, basically, “I made up my mind on election night, and if you weren't with me, you were a RINO or you were not somebody that was to be trusted.”Are those statements from him since going to be damaging?
I think they might be admissible.The government may choose to offer them.I think that's a decidedly dicey proposition.Again, the president making a self-interested decision to choose certain lawyers—I mean, everybody, picks in an administration, is an exercise of a political judgment and in the president's self-interest.I just think that's an extraordinarily naive view about things, to think that that's going to be evidence of criminal intent.
Look, maybe I'm wrong, but I don't find that to be overly persuasive.I think you're going to have to prove on the merits that no reasonable person, given these sets of choices, would have accepted that advice, even if it was offered as legal advice.And I think that's an uphill climb.I think that's a difficult thing for the government to have to face.I don't think that's a controversial view on my part.And again, I'm not saying it can't be done and it's not something that the government can't overcome; I just think it's difficult.
So the formal advice-of-counsel defense that says that Giuliani, [John] Eastman and whoever else was telling him that these things were legal, do you think that could be a successful defense for the former president, or is it a difficult one if they can't testify and they're not going to testify?
I've just sort of thought through that.I think that's, yeah, that's the issue that we're sort of pressing here, is exactly how would he present that defense.In some sense, the government has already had an impact in that regard by charging or naming or characterizing these lawyers as either indicted or unindicted co-conspirators.I don't imagine there could be a circumstance where any of those lawyers, with the benefit of their own counsel, would voluntarily take the stand and testify as a witness, either for the defense or prosecution, knowing what the potential ramifications could be.I think anybody in that circumstance would be well advised to take the Fifth Amendment and would follow that advice.
And that essentially takes those witnesses off the table.Defendants have argued in any number of cases that that grants an unfair advantage to the government because it can be seen as a tactical decision.And I'm sure that that was something that the prosecutors thought about.But yeah, under those circumstances, I think it makes it difficult for the president to present an advice-of-counsel defense, at least in the usual sense.
… One of the things that's very powerful if you read the Jan. 6 report is they have a table, and they show this is what the president was told, this is what he said publicly, and they go through all of the experts who say one thing and then the president says something else.And it appears on its face to be a pretty powerful piece of evidence, that he was told and that he believed something else.Maybe this is a question I asked before, but if it was another defendant and they might be able to say he lived in his own reality—this is something you hear about the former president, Trump, that he's almost divorced from reality, but he's also the president of the United States.Can they make that argument that he was living in his own reality inside his own mind?
You can make that argument, but if you do make that argument, that comes with some risk, too, to the defense, and that is, it invites, and the court would likely give [to the jury], a conscious avoidance instruction, otherwise known as a response to the “ostrich defense”: Well, I didn't accept any of that, and I chose basically to stick my head in the sand, and therefore, government, you can't prove that I had criminal intent.And the instruction that would be given, conscious avoidance, is that it is not a defense for the defendant to essentially consciously avoid knowing or having criminal knowledge by essentially shutting out all information that comes in and disregarding it.Ultimately it's for you, the jury, to decide if a defendant did that, that could be itself evidence of criminal intent.
So that's why I say it comes with some risk.If the defense travels down that road, it is going to be met and likely will result in the District Court giving a conscious avoidance instruction to the jury, which, again, is what people in the trade refer to as an intent to avoid the intent defeater: You can't stick your head in the sand and avoid ever having criminal intent.If you do that, that itself is evidence of the fact that you were avoiding what you knew to be the result, which was a criminal intent.In other words, it's the same thing.
And that instruction is a very pro-government and very damaging to a defense instruction.But if the president's lawyers travel down that road and invite such a consideration of such a defense, it will be met with an instruction that will counter it, and that's the instruction the District Court would likely give.And it's a pretty—I have seen it in practice on both sides.It's a pretty powerful instruction.
Yeah.And all of these defenses have to be weighed against the fact that they're happening in an election year, too, so it's hard to say the president is disconnected from reality.
Right, right.And, you know, all those things, again, all of that's fair game.All the president's statements are fair game.Which ones the prosecution decides to introduce, those are big, tactical decisions, and then how the defense reacts to that and what if any evidence they put on to counteract that.Each move and each countermove has a certain effect in a trial.And it also comes with various risks, some of which, you know, you make decisions not to step into certain things because if you do, just like we've discussed in the conscious avoidance area, be careful what you ask for; you might get it.You travel down that road, you're going to get this instruction.
So those are the kinds of things that will play out in a trial.
The First Amendment Defense
The First Amendment—the indictment goes out of its way to say the former president has rights under the First Amendment, can go to the courts, can claim, can say … whatever he wants, but then says in the indictment, “The defendant's knowingly false statements were integral to his criminal plans to defeat the government function, to obstruct the certification….”How strong is the argument for the defense—
Huge.
—that it's not a crime to lie?
Well, I think it's huge for the—this is a central area of the president's defense.He does have First Amendment rights, and particularly as president.And trying to turn words into criminal conduct is a very slippery road for the prosecution under the First Amendment.And in the event of a conviction, I can guarantee you this: This will be point one in the brief on appeal.This is a major issue, and it is in—as the judge that I used to clerk for was fond of saying, the First Amendment is the First Amendment for a reason.That's why it's first, OK?
This one's a big one, and I think you should watch for that.I think it should be big for a jury.It will be interesting to see how the District Court navigates around that through jury instructions about what crosses over the line into criminal conduct.My reaction when I read it in the indictment was, OK, that's nice; that's a little too clever by half.This is a major issue.They have tried to draft around it, understanding that it is going to be a major defense.And it's both a major defense at trial, but even more importantly, it's a major defense on appeal.Even in the event of a conviction, this is one area where an appellate court could toss a conviction notwithstanding the fact that a jury found him guilty.
And that's a separate defense from whether you can prove intent or not.
Correct.Even if you could prove intent, there is a zone under the First Amendment that criminal authority cannot enter.And we have the exceptions about you can't scream fire in a theater, but the question is, given what the president said—and again, it was a rather, remember, it was a rather one-sided approach.Significantly, the committee of course played videotape about what the president was encouraging people to do and then left out the piece that said, “Now I want you to go to the Hill and be peaceful.”2You know, they didn't find that to be particularly persuasive and didn't think that those words really amounted, in their judgment, as a defeat to what it is the president was asking or inviting people to do.
But I can tell you what: That will certainly be something that the defense will feature prominently at trial.And again, even in the event of jury instructions that go to the jury and a jury finds that they can find an intent beyond a reasonable doubt, that still may run up against the First Amendment and is an issue that I think will be—I imagine that one will be litigated for some time on appeal.Again, uncharted territory.
Pressure on State and Local Officials
One of the parts of the conspiracy, the alleged conspiracy, is pressure on local officials.Somebody like Rusty Bowers, the speaker of Arizona [House of Representatives], gets a phone call from the president, from Rudy Giuliani, and they say, “We want you to convene a committee to justify,” as Bowers tells the story, “to justify convening the legislature to send its own electors or to invalidate the electors that were in the process of being sent from Arizona.”And they say this is part of the conspiracy to obstruct the results of the election, to deny the votes of voters, the rights of voters.How do you analyze a moment like that?
I think this one's hard for me.I find this one difficult.I've thought a great amount about this, and I've also thought about it in the context of my own experience.When a president asks something or somebody cloaked in the powers of the administration—I was thinking about this in connection with the FBI files investigation in the travel office that in part involved conduct by Hillary Clinton on behalf of the administration to ask certain people to do things without a direction to actually do them.When a president or [one] cloaked with the authority of the president asks, it's not like what any other American citizen can do.There's an enormous amount of power behind that, and getting into the question of, when somebody asks you to do something, is that an order?How is that received?Should Hillary Clinton or anybody else be criminally accountable for how somebody receives that different than anybody else?I struggled greatly with those questions in connection with the Whitewater investigation.
And in this context, obviously a little different.I don't know where that lands exactly.On the one hand, I guess I take great comfort in the fact that all of these officials elected or appointed or otherwise take an oath to support and defend the Constitution of the United States.If the president asks you to do something, it's not asking you necessarily and shouldn't be viewed necessarily as an invitation to violate your oath to do something that you shouldn't be doing.
And I think about that in this context, as well as the context of President Trump asking Mike Pence to do something.It wasn't an order to do something.It was, you know, “This is what I want you to do, and if you don't do it, you're—you're really not—you're a RINO, and you're not being loyal to this administration.”Can that, in that context, with regard to a president, can that be deemed to be evidence of a criminal conspiracy and of criminal intent?I'm not so sure about that.
You know, I think the ask doesn't necessarily … assume the result.You're asking.It's almost implicit.Just like the government wants you to assume that in that ask, you're asking somebody to engage in criminal conduct, I think there's a fair argument to be made—and I am assuming you're going to see it or hear about it at trial—“I'm making an ask of you, and I'm asking you, consistent with your oath in the office that you're in, whether you can see your way to find 13,000 votes.”I don't consider that statement alone—and I understand the government's going to try to provide context, but that statement alone, to me, is not sufficient to prove guilty knowledge or guilty intent beyond a reasonable doubt.It just isn't.
And I guess one of the questions is who interprets what the oath is.Rusty Bowers says, literally says, according to his testimony, “You are asking me to violate my oath, and I will not do that.”And they go back to him repeatedly after that point.
Right.But ultimately, who's the guardian of the oath?It's the person who is on the receiving end of that invitation.It's not a direction.It's not a— I guess you can consider it maybe a command because it comes with the power and authority of the president of the United States, but ultimately, we're all constitutional actors, at least those who are appointed or elected to office, and the only person who can keep their oath is the person who takes the oath.
I don't know that, again, asking somebody to violate their oath is really going to be equivalent to, without more, and I'm not saying that they can't attempt to show more, but I think in context, if that's all you have, I don't find that to be sufficient.
I’ve seen this defense suggested for the former president that as a citizen, you're allowed to petition your government, and that's what he's doing.But there's also this other defense, which is, he's the president of the United States, and if he believes he's securing the election, that that's part of his job.Do they have to choose between those two?Is he a private petitioner, or is he the president of the United States calling Rusty Bowers?
Well, I think this is difficult for the prosecution because I think the prosecution doesn't have to exclude every potential wild hypothesis of innocence, and we'll even get an instruction to that effect.But on the other hand, the prosecution just can't present itself as: This is Donald Trump exclusively acting in Donald Trump's interest.I know there's, of course, sort of a great public sentiment behind—in the public domain now that everything that Donald Trump does is all about Donald Trump.And I think that's what you're going to likely hear from the government's presentation of this evidence.
But as I said or suggested to you earlier, think about this in the context of, it's not Donald Trump.Suppose it were another candidate for the presidency.Donald Trump, for example, had served two terms, and he's still the president, and there's another candidate for office, and it's a close election, and the president has power and authority to go into Georgia and question the results.You don't think he has the power to do that?Of course he has the power to do that.Absolutely.
Now, he can't engage in criminal conduct, but to suggest that he doesn't have the power to inquire and press, and press pretty hard, again, I think is a ridiculous notion.Of course he has that power.
And Giuliani's alleged statement to Bowers: “We've got lots of theories, we just don't have any evidence.”The president is not on the phone call at that point.But Giuliani is considered a co-conspirator.Can that be used against the president?
Sure.I mean, statements of co-conspirators in furtherance of the conspiracy are an exception to the hearsay rule.Doesn't require that, you know, Rudy Giuliani be there and subject to cross-examination.Those statements, you know, can come in the government's case as an exception to the hearsay rule.And they will be offered as such.And there's a prima facie showing that typically has to be made that the government has presented evidence from which a jury could rationally conclude that a conspiracy existed, and that those statements were made in furtherance of the conspiracy.
So yes, I mean, that's the drill.That's why, you know, conspiracy charges are considered, you know, within the prosecutor's– what's the phrase?I can't remember what the phrase is, but it's meant to suggest that prosecutors choose conspiracy charges for precisely that reason.It allows them to get into evidence, a lot of other– a lot of evidence that would otherwise be excluded.
… In November, in December, because like somebody like Rusty Bowers, after he's identified in tweets from the president, people show up at his house.Militia people have guns.There's specific threats.At that same time, Dec. 1, [election official] Gabriel Sterling in Georgia has a press conference that sort of goes viral where he says, “Mr. President, you've got to stop the lies.Somebody's going to get hurt.Somebody's going to get killed.”And the president retweets that clip of video to say Georgia's elections are a scam.Is it possible to use something like that to say he's on notice for the fact that his words can cause violence; that he's on notice for what his supporters might do?
Sure.But on the other hand, again, evaluated in context, there's all kinds of things that a president says, given the fact that what he says and what he does is captured and transmitted all over the country.The president is not accountable for every single thing that happens as a consequence of what it is he says.It's not like any other ordinary situation or ordinary American.
So I guess the answer to your question is, sure.Can that be introduced?How persuasive will it be?I think that's yet to be determined.And how accountable is he for that?Again, I think that also is, for the same reason, yet to be determined.I don't think it's an open—I guess my point is, I don't think it's an open-and-shut question.I don't think you can just draw a straight line and say, “Well, looky here.They told him, and still he persisted, and look what happened.”
Yeah, in a lot of these examples, because a lot of these people who he has phone calls with, who he tweets against, threats come in, people show up at their house, other things, it would be pretty hard to draw a line between what these third parties are doing and what the president is saying?
Well, right.Again, I still think there's room—I've even said so publicly with regard to the, whatever it was, two-and-a-half- or three-hour delay with regard to Jan. 6 and the riot and the activities that took place at the Capitol.Frankly I found that that delay was reprehensible and a serious error in judgment on the president's part.
I think you can have all those criticisms—I mean, Bill Barr went even further to say that it was a betrayal of the president's office, a statement I don't happen to agree with, but even assuming that's so, all of those things don't add up to: And that means that the president invited all of that and is criminally accountable for all that happened thereafter.I think that is still a huge leap, and I would suggest to you and to your viewers—and should be a huge leap.Presidents and others should, again, have a wide berth to engage in conduct, even conduct that is reprehensible, that is unfortunate, that is possibly even a betrayal of their oath, which, again, would be subject to impeachment, but is not necessarily criminal and should result in a prosecution and a conviction that warrants a sentence of imprisonment.
That's what we're talking about.I think people too easily forget about that.We have grown used to in this country, again, for there to be a prosecutorial solution to every problem.That's a notion that I reject.I don't think that that's consistent with the Founders or the way our constitutional structure is supposed to function.
And again, I think if you travel down this road, you're going to be sorely disappointed in the results.That is not how best to hold people accountable.Again, the best way to hold people accountable is through the exercise of the right to vote.That's the “patient confidence” that Lincoln is referring to in the “ultimate justice of the people.”
I think this is unfortunate because it interferes with that accountability and the operation of an assessment of responsibility in the political process.And I think once we cross over into that land, we're in a brave new world, and I'm not sure that's a world we really want to be in.I don't think that this is healthy for the country in the long view.It may address the issues in the short term about President Trump and what is to become of him and what's going to happen to him in this election, but I overall don't think this is good for the country.
I take your point.I think the other side would say the alleged crime here is to interfere with that vote, right, within what Abraham Lincoln was saying was the ultimate check, and that's why it's so serious.
I hear that.I guess in the broad context, though, my two responses about the best solution to a lot of problems, including the current environment we're in, where we can't even elect a speaker of the House, is if you want to solve a lot of these problems, including election interference and all the rest, the best—and also, from the president's perspective, allegations of fraud—what's the best solution to all those problems?Elect a Congress where it's clear who the majority is, not within four or eight votes.
If you don't like these kinds of activities with regard to individual states and close elections, what's the solution to that?Elect a candidate not necessarily in a landslide, but at least convincingly enough that it doesn't make any difference.In an election in which there's a clear victor, does it make any difference whether or not there was fraud in Georgia?Answer: No.I mean, that's the fastest practical solution to this problem.
… So you mentioned the [Secretary of State of Georgia Brad] Raffensperger phone call.3And when we have talked to people, they point to that as one of the biggest pieces of evidence, because you can hear the president; you can hear him dismiss the evidence that Raffensperger and his lawyer are offering.Raffensperger says that Trump mentions potential criminal charges, which Raffensperger interprets as a threat to him.And of course there's the famous quote that you mentioned, the 11,780 votes.Do you find that evidence to be as damning as some of the people we've talked to?
3
Well, understand that I'm not the arbiter of this, and it's ultimately for a fair-minded jury to make a call.Look, I can see the argument on both sides.I do think that it has been, from the outset, incredibly overstated, in my own judgment.Take my word for it; don't take my word for it.That's fine.
I don't find finding votes to be the equivalent of "Find me votes, whether legally or illegally," to be the same thing.I just think it's one of those statements that you'd make to say, “Look, this is a close–” It's another way of saying, “This is a close election.There's only 11,000-plus votes that separate us.There's got to be evidence of fraud out there sufficient to recapture that many number of votes.”
I will just tell you, parenthetically, 11,000 votes, even in a closely contested election, in order to be able to discount that amount, that number of votes, is very hard to do.What's the best evidence of that?The Bush/Gore election in 2000.You know, 11,000 votes is still a lot of votes.You're not going to be able to disqualify that number of votes out there in order to change the result in an election, even if you could prove fraud.That's just very difficult to imagine, and certainly difficult to imagine that you could do it within the space of two months; that you're going to capture that amount of evidence to be able to persuade somebody that they should throw out close to 12,000 votes, right?
So I think that that's unrealistic, but I don't find that statement to be the equivalent of asking somebody to do something illegal.
And the statement, though, “This could be a crime; you guys could be in trouble here”?
Well, that comes with it sort of an implicit threat, right?But that to me is another way of saying, “I'm asking you to press forward, and if you don't, there are consequences, and so I'm really laying it on thick.”So the prosecution's presentation of that is that in effect, Donald Trump was asking this person, with the application of direct pressure, to violate their oath.And again, my response to that is, that's why you take an oath: When the heat turns up, you will not violate your oath.
That's, in fact, what Mike Pence faced.Is the fact that Donald Trump asked him to do that, is that criminal?Again, I think you've got to be really careful there.I don't think that's something you want to make criminal, or at least on its own, the mere ask to say, “I want you to not certify the result.”
And, you know, Mike Pence's response to that was, “Well, I got legal advice.I consulted with my lawyers, and I determined that I did not have that authority, consistent with the law and my oath to the Constitution of the United States.”And that's what he should have done. …
The Fraudulent Electors Plan
… One of the most confusing parts, but seems like a central part of it, is the alleged conspiracy to organize fraudulent electors.And the indictment says that they have memos that say these are not just backup electors, that they want to use them to go to Congress on Jan. 6 to invalidate what the prosecution calls legitimate electors.Is that scheme a crime?
Again, not to put too fine a point on it, the jury's still out on that.I don't think there's any—in and of itself, there's nothing wrong with having a slate of electors.Electors aren't really electors until you have a legitimate basis to put them forward.I guess that's going to where the rubber meets the road in the prosecution's case.You put a slate of electors together, and you really didn't have a legitimate basis to put them forward; Therefore, they're sham electors.
And I think we have instances in our history where, in close elections, in particular states, even at the presidential level, where candidates have moved forward with alternate slates, I think including the election in 1960 with John Kennedy and Richard Nixon.So again, I think this is an area where, be careful about trying to suggest that that act alone is sufficient to draw a conclusion that that was criminal conduct and criminal mischief.I don't really think that should be the case, and I think there's obviously good reason why it shouldn't be the case.
But if they can prove the internal memos say this is really to create a pretext for Jan. 6.They claim—they say that there's evidence that they're misleading those people who are signing those documents, telling them that it's only a backup when it's not; that's not what the plan is.
Theoretically, right, if they've got that evidence that they all understood that it was a pretext, that there wasn't going to be any way to show fraud sufficient to warrant an alternate slate of [electors] and that they were just putting this forward in order to create an impediment and a roadblock to the certification of the election results, yes, theoretically, that still wouldn't be a bar to being able to prove criminal intent.
I'm just suggesting to you that it is not quite as clean and simple as that.And again, understand, we go back to sort of the original point we started with.Remember that in all this is what the government suggests that it has.What happens when those people actually are called in and are subject to cross-examination?And it's going to have to be the kind of testimony where it sort of excludes the possibility, with a virtual certainty, that there couldn't have been a path through which an alternate slate of electors would have been appropriate.
And if they can do that, more power to them.That might well be proof sufficient in this area to prove the charge beyond a reasonable doubt, but I don't think it's going to be clean or simple.I think that's going to be another one that's difficult.And again, the jury's still out on that one, yet to be determined.
Another suggested defense has been that you can't make a wrong interpretation of the law criminal and that they believe that legislators can revoke duly elected electors; that they believe that the Congress can choose whoever they want, no matter how legitimate they may be.Is that really a defense?
I think it's a defense to a degree, right?Again, you can imagine in the extreme, if essentially it can't be viewed as anything other than a pretext, then it's not much of a defense.
Exploring, though, where between it's absolutely a pretext and “Wait a minute.It's a disputed election.It's close.Provisional actions are taken.Yes, it relies on other people to follow their oath and make judgments about whether or not these are legitimate electors or not,” but the mere fact of putting it forward and the mere fact that they might have been wrong in making that calculated judgment shouldn't necessarily or inevitably lead to criminal charges.Do I think there's still space in that area?Yeah, I do.I think there's still space in that area to say, “We may even have been wrong, and we may have even made an error in judgment, and we may even have been wrong on the law, but that doesn't mean that we are criminally responsible for the result and the mere fact that we placed it and put it forward.”
I guess if you're the prosecution you’re saying, too, is we didn't just put them forward, right?We pressured the vice president to accept them; we did all of these other actions.
You know what?It wouldn't be surprising to think that in a hotly contested election that pressure is applied.You don't think that happened in other elections that were disputed?Of course it did, maybe not to the same degree that we've now been able to expose here, but there's a lot riding on this.This is not just any old election.This is the presidency of the United States, and it comes down to a very few number of states, and it's close.It would not have been surprising to have had an election challenge.It would not be surprising to have had that election challenge continue up to and including Jan. 6, where it's the point of no return.
Pressure on the Department of Justice
Part of the alleged conspiracy, the pressure from the Department of Justice that the acting attorney general, Jeffrey Rosen, and the deputy acting attorney general, Richard Donoghue, push back, say, “We're not finding the fraud; we're not going to sign this letter from [DOJ official] Jeffrey Clark”; say at one point, apparently, Donoghue writes down [that] the president says to them, “Just say the election was corrupt, and leave the rest to me and the Republican congressmen,” after he'd been told that there was no fraud in the election.Can that be part of the crime that the prosecution can prove?
Look, anything and everything is evidence that can be presented that may well be accepted or not by a jury as part of the crime.Look, I think that's a very unfortunate statement on the president's part, but it wouldn't be the first time that a president said something—take it out of this context, and just put it into the context of the president's ordinary responsibilities: “I hear what you're saying about legal-schmegal, but this is the course I want to take, and let the legal stuff catch up to it.”
It wouldn't be the first time that a president made a conscious decision to reject advice from his legal advisers, including his White House counsel or the Department of Justice that says, “You're going to face a challenge that the action or the course that you're going to take is not going to be considered to be legal by some,” and a president's reaction to that being akin to this: “Let me worry about that.Let me do what I need to do.You do what you need to do.Tell them you're looking into it.Let me worry about the legal stuff.”
Again, is that evidence of criminal misconduct?Could be. Could be.But sorting that out before a fair-minded jury, assuming that there's a fair-minded jury, is, I think, another question. …
But it is– Is it conceivable that with the right evidence that it is possible to say pressure on the president's own Department of Justice could be part of a crime?
Yeah, of course.And that, you know, in the exercise of prosecutorial discretion, Jack Smith has made that judgment that that has crossed over the line.And in fact, you know, even his indictment seems to sort of concede the possibility about a lot of this conduct, to a degree, is, you might even say, an error in judgment or reprehensible, or, you know, some negative connotation, but not necessarily criminal.And he concedes as much.But he is now going to have to prove, you know, that, conceding that much, I'm going to have to prove that the president went over that line, whatever that line is.
Pressure on Mike Pence
… They get access to John Eastman's memos, the January 6 Committee, and the judge uses a crime fraud exception to do it.What did you think of that moment, of that decision?
That's significant in a case, because otherwise those materials would be privileged, likely.The only real recognized exception to overcome it would be that it was advice rendered in connection with a crime, and the crime fraud exception applies, and therefore that material will in all likelihood come into evidence.There may be other objections that I'm not appreciating at the moment, but it obviously is a significant piece, area of evidence, and that was a significant moment in the investigation, no question about that.
Why? Because it gives you a window on intent.You're getting people's contemporaneous recollections and understanding about what people, including the president, were thinking at the time, which is obviously something that's very important for a prosecutor to have in order to persuade a jury why the president's actions were consistent with criminal intent as opposed to an innocent reason.
And they become pretty central to this whole, to understanding, as you say, these memos.There's a series of John Eastman memos where his thinking evolves over time, and he goes from saying the [vice] president can't just reject them to writing memos where he says the vice president has the power to reject or decide which electors of his own want to accept.I assume you've read the memos or read about them.What do they add to the case, or what is the challenge of them?
I think you probably can expect to hear from the defense, at least in part on that, if it was so clear, why did the vice president need to seek legal advice about it, first?Second, if it was so clear, why did Congress see fit thereafter to change the Electoral Act to make it clear for the future that the vice president's actions in that regard are entirely, purely ministerial?
I think that, again, I understand where it's with the benefit now of 20/20 hindsight, everybody wants to say, well, this was an absolutely clear decision; it didn't require anybody to think twice about it, and the vice president doesn't have that authority; he doesn't have the constitutional ability to do anything other than to just simply determine that there are certifications that come from the respective states and to submit them to the Congress for that reason, and to approve them.
But again, I think scholars have long recognized—legal scholars, constitutional scholars have long recognized that those provisions of the Constitution and the corresponding provisions of the Electoral Act were not as clear as they could or should be, and I do think in that area there is room for the defense to exploit and to operate.
It seems like a technicality, the idea the vice president could, even if there was a loophole in the law, it seems like that's what it is.But if it is a loophole, and it is a potential technicality that could be possibly justified, then that might be enough for a defense even though … it's disenfranchising the voters.
Yeah, but that's a political judgment, right?That's the political process.That's why we have elections in order to sort out.We don't sort those things out with the benefit of hindsight.That's why we have ex post facto provisions in the Constitution that make it unconstitutional to charge somebody with sort of a roving offense that changes based upon what you think now as opposed to what was in effect at the time that the defendant allegedly committed the act, right?
It's decidedly unfair and inconsistent with due process to be trying to sort through and make those judgments and say that the criminal laws should stick to them if, for example, in this case, I think you're going to hear evidence from the defendants, the president's lawyers, to the effect that Mike Pence didn't know on his own; that's why he consulted with Judge [Michael] Luttig and I think, further, why the Congress decided that if it wasn't clear with regard to what the intention of this act was consistent with the Constitution, that the vice president's duties are purely ministerial, that you need to say so.
There's a counterargument, like: He's the vice president of the United States.He's the president of the Senate.He's obviously entrusted with constitutional authority.I don't think it was an accident of the Framers to entrust the vice president, the only other elected official by all the people in the country, to make a determination about certifying electors that determine the presidency with the only other alternative being throwing the election into the House of Representatives.
I think you could still make a plausible case, as apparently Eastman did.You may not find it to be persuasive, but I think you can make a plausible case that the vice president in that circumstance, as the president of the Senate, has some inherent constitutional authority to reject.And if you didn't think that that was the case, then the Constitution vests the Congress with the authority, through legislation, to clear up the ambiguity, which they subsequently did.And in that subsequently clearing of the ambiguity, there is room for a defense to say, well, if it was so clear, how come the Congress had to change the law?And you can't stick me with a violation of the criminal law by asking the vice president to do something about which there is some constitutional and statutory ambiguity.
We haven't heard from Pence.We've seen little glimpses of it inside the indictment.We've heard from his advisers.We've heard from people around him.How important, if he testifies at the trial, could his testimony be?I mean, the president said, “You're too honest,” at one point.How important could Pence's testimony be?
I think it could be important.I think if he's called, I think it will be important.I don't think you should assume that he's going to throw former President Trump under the bus either.I think he's been clear in his book and otherwise about what he thought his obligations were.But if you start getting into the question about whether or not—I don't know whether this would be admissible at trial, but I think the gist of your question is what does Mike Pence really think about whether or not Donald Trump acted unlawfully.The government won't be able to ask that question directly, but there will be ways, if he were a witness at trial, that they will sort of cover that territory.
I wouldn't necessarily assume that Mike Pence is going to be a favorable witness for the prosecution.And just so it's clear, not in a political context, because he has basically thrown the former president under the bus in a political context.I'm talking about in a criminal context with Mike Pence under oath, which I know he takes very seriously, at a criminal trial, to testify truthfully, the oath that every witness takes: Do you swear that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?I can tell you that Mike Pence takes that oath seriously and that he will tell the truth.On that thing, I don't actually know what Mike Pence would say.
January 6
… As we get to Jan. 6, you’ve talked about the speech.I think that the case that the January 6 Committee would make and the prosecutors will probably make is that the president was told that there were weapons in the crowd.He had said before internally that he wanted to go with the protesters to the Capitol, that it wasn't a spur-of-the-moment statement; that he knew that Mike Pence had said that he wasn't going to go along, and yet he goes out, and he gives the speech, and he does use the word "peacefully," but he also says "Fight like hell," and he says "fight" repeatedly.And they allege in the indictment that he was sending a large and angry crowd towards the Capitol, that he knew it was a large and angry crowd and that the intent of it was to interfere.
"Fight like hell" is a political euphemism.I think, again, trying to turn that into “fighting words” equivalent to shouting fire in a theater is a pretty huge leap, particularly in light of the president's disclaimer that the protests should be peaceful.
I honestly think this one to me is the most problematic.You want to turn that one into a crime.I think that is a decidedly bad idea.I just do.And I think it has a major First Amendment problem.… My view as a prosecutor would be I'd have trouble bringing that charge, because the prosecutor's obligation is to bring a charge in which the prosecutor believes not just that there's probable cause to return an indictment, but a good-faith belief that a fair-minded jury would convict on that charge and that that prosecution would be sustainable under existing law, including on appeal.And I do not find that charge to be sustainable, irrespective of whether a jury could return a verdict on it.I do not find that charge to be sustainable on appeal for First Amendment reasons.I just—that's a bad idea.You don't like what happened there, about what the president said, remove him from office, OK?Don't elect him president of the United States ever again.That's the solution to that one.
Now, do I understand that it's a matter of degree?I mean, you don't have to actually have a loaded weapon to be able to say, “You should have known better; that if you said certain things, it was going to lead to direct acts of violence.”I think it's a real reach, though, to suggest based upon at least the facts that as I know them under the circumstances in which they were given to hold the president to account for what happened about people trespassing on the Capitol and breaking windows and going in in what people have characterized as a violent, deadly protest.
I don't think that's an area that is suited to the application of the criminal law, and I think it has a major constitutional problem, including the First Amendment.
I had meant to ask you and I didn't, and you'd probably say the same thing about the tweet that he sends in December saying, "Will be wild! Come to Washington."4
4
New York Times: ‘Be There. Will Be Wild!’
Again, that's why there's a First Amendment.You're given a big amount of latitude to say a lot of wild and crazy, even stupid things, without having to worry about somebody afterwards deciding that you should be sent to jail for it.
And the specific thing I think they would say is, he said, “Go to the Capitol.I will be there with you.”
Which he wasn't, right?
Which he wasn't.The evidence is he tried to go and he wasn't able to, but that that was not just riling them up; that that was an action directing the crowd towards the Capitol.
Do you really think that was—well, that's the argument they're going to make.Do you really think that was directing them to do all of those acts?I think that's a stretch.I don't think they're going to be able to present evidence that would be able to make that stick beyond a reasonable doubt.
Again, I think there should be room under the First Amendment and otherwise for the president to say an awful lot without having to tag him with a criminal offense, and that's separate and apart from whether or not he's covered by immunity.It's just simply the zone that the First Amendment protects.And I think trying to immediately draw the conclusion that we're going to go to the Capitol and raise hell and fight like hell, that that's the same thing as pinning the tail on the donkey, I don't think that it's the same, no.
And I think it's particularly problematic, even in the political process, for the committee to sort of travel down that road and intentionally exclude what the president said that they shouldn't do; that it should be a peaceful protest.
To me, I'm not even sure—well, I think it's a close call, and I don't have any doubt about what this judge is going to do, but I would have a hard time, I think, or at least I would be contemplating whether or not I'd even allow a jury to hear that once the government's evidence is—and I might change my view based upon what other evidence the government develops.But I think there would be a serious question if the defense makes a motion that, at the end, at the close of the government's case, that no rational jury could convict the defendant on that charge, I think I might give some serious consideration of saying, “You know what?You're right. That doesn't go to the jury.”
So as we come to the end of the story, to the end of this interview, too, I just want to ask you a couple things about where we are now.And the first is Jack Smith.I don't know if you know him— or know about who he is.You do know, you didn't have exactly the same job, but a similar job.What position is he in, and how will you evaluate how he's operating?
It's a very difficult position to be in.He's entrusted with the authority of trying to prosecute a former president who happens to be a candidate in this election cycle, and to be able to pull that off, consistent with public sentiment, to have people walk away from this on both sides after the process plays out believing that the process was fair.
Right now, if we had to make an evaluation as we sit here in the moment, I think you have about half the country that thinks, has already concluded that that process is not fair.And that's not an enviable position to be in.
I mean, what you hope as a prosecutor, given the powers that you're entrusted with, is that on a bipartisan, nonpartisan basis, people will come to accept your judgments and decisions about bringing and prosecuting a case as being fundamentally consistent with the Constitution and our system of justice, which is equal justice under law and without favor or prejudice to any person.
I think about half the country right now doesn't believe that.That's not a good result.No matter what the actual results are in the courtroom, that, to me, is troubling and disheartening.Whatever your views, whether in favor of former President Trump or not in favor of former President Trump, that is not a happy place for the country to be.
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