Preet Bharara:

From Cafe and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Tim Heaphy:

As a former Department of Justice official, I wanted to be part of a credible effort that was genuinely interested in getting the truth about what happened. And Chairman Thompson made clear from the beginning that there was no pre-ordained outcome or known narrative that we were trying to corroborate, but rather an open-ended, genuine inquiry for the truth.

QUESTION & ANSWER:

Preet Bharara:

That’s Tim Heaphy. Until just a few weeks ago, he was the chief investigative counsel for the House January 6th committee. That means that he led this sprawling 18 month investigation into the insurrection at the Capitol, and he helped craft the final report that recommended criminal charges against Former President Trump. Tim and I served together in the Justice Department under President Obama. He was US attorney for the Western District of Virginia when I was the US attorney for the Southern District of New York. Tim joins me this week for an exclusive conversation about the House January 6th investigation. We discussed the process of interviewing witnesses, the strategy behind the hearings, and the relationship between the committee and DOJ, plus what happens next now that the committee has issued its final report. That’s coming up. Stay tuned.

Now let’s get to your questions. This question comes in a tweet from Kristy who writes, “If we assume Biden will run, how can Garland indict Trump, Biden’s opponent, and not appear to politically help his boss? Credit to Elie Honig Cafe post. #AskPreet, congrats on your podcast win.” Thanks, Kristy, for the question and for the congrats. Well, you have crystallized perfectly the political dilemma that lots of people have been talking about. My view, even though the facts are still developing with respect to the Biden documents, said there’s a significant difference most importantly with respect to willfulness, with respect to the handling of the documents. And I think some will certainly believe that there’s an indictment of Trump and not Biden, no matter what the facts show, no matter how honestly and deliberately the decision was made, that it is unfair and it’s politically motivated. And there’s not a whole lot you can do about that.

But I think that’s why Garland appointed two separate and independent, or I guess mostly independent, special counsels, one for the documents relating to Mar-a-Lago and the other for the documents relating to Joe Biden because in his mind he understands whether he will say so forthrightly or not, that there is this political conundrum and there will be people who will doubt the independence of the decision-making and in his mind, and I think for purposes of assuaging people’s doubts about the good faith and independence of the decision-making with respect to Biden and to Trump and to ensure there’s not a double standard he appointed these two men. The problem is manyfold however, because for a lot of people, their minds are made up both as to the guilt of Trump and Biden or the innocence of Trump and Biden, and they want to abide any decision if they both don’t meet the same outcome, either no one indicted or both of them indicted.

So as a political matter, it’s a bit of an impossible situation and I don’t envy the role that the attorney general has. But as a rule of law matter, you have to put that aside, the special counsels in particular have to put that aside. Look at the cases on their own facts, on their own merits. Look at the evidence you have, look at the testimony you get, look at the nature of the documents, follow the timeline and assess it all. And in the totality of circumstances, compare the matter to other cases that have been brought criminally versus cases that haven’t been brought criminally. And make your best independent, good faith assessment of whether your matter, whether it’s the Biden matter or the Trump matter falls within the category of cases that have been charged previously or not charged previously.

That’s easier said than done, given all the turmoil in the air and the politicization of this. But that’s how it should be done. That’s I think the aspiration that Merrick Garland has for each of the special counsels. The problem though in the end is Garland, ultimately, even though he’s delegated these responsibilities, he ultimately, as a practical matter, is the one making the final decision because the special counsels are not independent counsels. They still answer to Merrick Garland. They still will make a recommendation to Merrick Garland. He can overrule them even though he has to make a report and disclosure of that to Congress. But notwithstanding the fact that he’s appointed two people with some remove from the daily hierarchy of the Justice Department, at the end of the day it’s Garland’s decision and I don’t envy him.

One more point that I think we all know by now, but just bears repeating, the difference also between the position of Donald Trump and the position of Joe Biden is Joe Biden now has the benefit that Trump had for many years during the Mueller investigation of being the sitting commander in chief and per a continuing and existing OLC, Office of Legal Counsel policy and conclusion, a sitting president cannot be prosecuted. So at best, even if there was a decision about Biden having broken the law by the special counsel, and even if that decision was agreed with by Merrick Garland, no such prosecution could happen until Biden leaves office. And if he runs again and wins again, then there’s a real question about whether he would ever be prosecuted, even if, and this is I think uphill battle, even if it was found that a statute was violated.

This question comes in an email from Robert who asks, “What are your thoughts on why DOJ chose not to send FBI agents to search President Biden’s home for classified documents?” Well, this is a reference to an article in the last couple of days from The Wall Street Journal that reports, “The Justice Department considered having FBI agents monitor a search by President Biden’s lawyers for classified documents at his homes, but decided against it both to avoid complicating later stages of the investigation and because Mr. Biden’s attorneys had quickly turned over a first batch and were cooperating according to people familiar with the matter.” I’d love to know who those people familiar with the matter are and how this came out, but I guess we’re not going to learn that because we never do with respect to press reports of this nature. So I think the answer is in that lead paragraph of The Wall Street Journal and whether you agree with the assessment or not and whether people will criticize the assessment or not.

I think it is the case that the DOJ decided based on an appearance of and evidence of cooperativeness and promptness on the part of the president’s lawyers that there was no need to have FBI accompaniment to other locations whether there may or may not be documents with classified markings. By the way, to the extent people say that’s different from what happened to Donald Trump, it’s not. The FBI involvement in the execution of a search in the Mar-a-Lago documents matter happened many, many months into an ongoing back and forth between the Archives and the Justice Department and the Trump lawyers and the Trump team. They did not take aggressive action for a while.

So I think the argument could be made given what looks like seemingly good faith cooperation. There’s no reason to be heavy handed. There’s another reason provided in the article itself, at least it’s a speculative reason why the FBI didn’t get involved was, “One reason not to involve the FBI in an early stage that way the Justice Department would preserve the ability to take a tougher line, including executing a future search warrant if negotiations ever turned hostile,” current and former law enforcement officials said.

I guess that’s that’s possible that you don’t ratchet up to the highest level of aggressiveness at the outset when you’ve not been provoked to do so. I think the bottom line is we’ll have to see how this unfolds. We’ll have to see how thorough a search is done. If Joe Biden’s team makes certifications that everything was turned over or box at turning things over, but then classified documents are later found, that’s a problem. And then you have to get into the question of willfulness and who is responsible and why such representations were made and why documents were not turned over when the problem came to light in the first instance back in November. All of that by the way happened in the Trump Mar-a-Lago documents case.

We have not seen that yet happen in the Biden case. So I think it was in the discretion of the FBI to not accompany the president’s lawyers. And you see that that’s the product of a back and forth and a negotiation between the parties. As The Wall Street Journal article points out, “The two sides agreed that Mr. Biden’s personal attorneys would inspect the homes, notify the Justice Department as soon as they identified any other potentially classified records and arranged for law enforcement authorities to take them.” So I imagine that the nature of the conversations, the openness of the conversations and negotiations were such that the FBI choose to exercise its discretion not to ask to accompany and I respect that.

This question comes in an email from Reno who asks, “What do you make of the news that the Supreme Court investigators looking into the Dobbs leak have narrowed their search down to a few suspects? How do you think they’ve gone about the investigation? Could the culprit face any legal action?” So this is kind of interesting. It’s another Wall Street Journal scoop from the last week. The reports that the investigation being conducted at the Supreme Court of who leaked an early version of the Dobbs opinion overturning Roe v. Wade had been “narrowed to a small number of suspects including law clerks”. Now, something about this reporting actually raises a lot of questions, and it’s not a hundred percent clear from the phrasing in the article, but it sounds like it’s saying that it’s a small number of suspects. We don’t know if that means three, four, nine, I don’t know what a small number of suspects means.

And when it says including law clerks, does that mean there are people who are not law clerks? Because I think that was the prevailing assumption and speculation at the time of the leak that it was a law clerk for one of the justices. Does that small number of suspects include people who work in tech? Does it include assistance and staff or does it possibly, and this is a somewhat far-fetched theory, but it’s one that some people have advanced, is one of the suspects is the Supreme Court justice? There are reasons why that seems crazy, but there are also reasons that people could provide why that maybe is not so crazy. I think what’s also interesting that the article points out that the Supreme Court got outside help as the article says, “With its own police having little experience in complex investigations, the court brought in assistance from outside government investigators, people familiar with the matter said there’s those same people familiar with the matter.”

They know a lot of stuff about a lot of things on a wide range of topics it seems people familiar with the matter. It’s also interesting that the story points out that the narrowing of the suspects to the small number happened some months ago back in the summer, and additional months have gone by and it doesn’t sound like there’s been a further narrowing or maybe further reporting. We’ll say it’s narrowed even further, but we don’t have that yet. It’s also interesting to see, according to this article, the approach taken in questioning potential suspects. The article says the interviews were sometimes short and superficial consisting of a handful of questions, such as, did you do it? Do you know anyone who had a reason to do it? Which is a direct question. Some might say not particularly designed to elicit a truthful answer if it was being asked of the person who was actually the perpetrator.

The bottom line is they appear to be serious. It appears to be ongoing. I’m not sure they’ll ever find the actual final culprit. And when you ask the question, could the culprit face any legal action, I’m still not aware of what criminal statute have been violated. There’s obviously a breach of the trust. It was a breach of protocol, it was a breach of etiquette, it was unprecedented. But the article itself points out that it might not necessarily be unlawful.

I think if the person continues to be in the employee of the Supreme Court, they would face dismissal, but it could be someone who is no longer at the court. And then I’m not sure what action could be taken. I guess maybe there’s an argument that it was a violation of the oath, maybe is a violation of some principle of ethics or code of ethics as a professional member of the bar. But as far as criminal sanction, I don’t currently see it. And I haven’t seen anyone incredibly propose what the crime would be. But if I’m wrong, you should write to us.

THE INTERVIEW:

We’ll be right back with my conversation with Tim Heaphy. Tim Heaphy is a former prosecutor who has held a number of significant roles from US Attorney for the Western District of Virginia to General Counsel at the University of Virginia. Most recently, Tim served as the Chief Investigator for the House January 6th select committee. Tim Heaphy, welcome to the show, my friend.

Tim Heaphy:

Thank you, Preet. It’s good to be here.

Preet Bharara:

So I’ve been excited to have you. We’ve all been excited to have you. As people know from the introduction, you and I were colleagues, US attorneys at the same time in the Obama administration.

Tim Heaphy:

Yes.

Preet Bharara:

Thank you for all your work, your continued public service. Glad to see someone like you playing the role that you had. So there’s a lot to get into. And I think let’s start from the beginning. How the hell did you get involved in this committee’s work?

Tim Heaphy:

So after I left the US attorney job a few years ago, I was in private practice and I live in Charlottesville, Virginia, which I think you know I was the US attorney here in the Western District of Virginia. And we had a horrific event here in August of 2017, spasm of violence and a mass demonstration. And the city of Charlottesville hired me and my then law firm to do an independent review of how the city handled, anticipated, and then managed that event. And I issued a lengthy report assessing the ways in which my client, the city had mismanaged that event, had not fully prepared, had not assessed intelligence, had not communicated with the public, resulting in violence and death in Charlottesville. And then January 6th happened, and unfortunately similar lack of preparation, similar violence and death occurred. And in the wake of that, there was a desire to do an assessment.

And I had lawyers are reluctant experts, Preet as you know and I’d sort of become sort of an expert in political violence and mass demonstrations and how they’re managed. And a good friend of mine from law school is Sean Patrick Maloney, who was a congressman from New York, and he reached out and connected me with the speaker and her team as they were putting together staff for the select committee. And since I had done something like this before and I had some experience in the Justice Department, they hired me to be the chief investigative counsel.

Preet Bharara:

And at what point was that? Was that after the committee was constituted or while it was anticipated that it would be constituted?

Tim Heaphy:

Right in the beginning. It was the summer of 2021. I think the committee was approved and established in June, and this was in August. So it was very soon after the committee got up and running. I was the third or fourth staff person that was hired.

Preet Bharara:

And what was your role supposed to be?

Tim Heaphy:

I was supposed to be the chief investigative counsel, which meant that I would essentially supervise the day-to-day work of the investigation. And that’s true to form what it was for the next 18 months. I was the sort of in charge overall working with the other staff leadership and the members of the factual investigation of the select committee.

Preet Bharara:

So describe for folks over the course of the committee’s work, how the staff was organized and how many people there were. We watched the hearings on television. We only got to see the members for the most part. I saw you a few times on some of the video clips taking some of those depositions and doing some of those interviews, but describe for folks how big the infrastructure was behind the committee.

Tim Heaphy:

Yeah, we had about 55 or 60 staff on the select committee. The investigative staff was largely lawyers. It was largely former prosecutors, people with whom you and I worked for years who were used to asking questions, used to reviewing documents, used to assessing credibility. The scope of the select committee was pretty broad. It was evaluating the facts and circumstances that gave rise to the January 6th attack on the Capitol. And that included law enforcement and military preparation. It included organization and financing of the rally, and it included the broader context of how it came about. So we organized it, Preet, into five separate investigative teams and we color coded them. We had the red and the blue team, and those two were either side of the fence at the Capitol. The red team was focused on the rioters themselves, who they were, how they got there, how much coordination they had, the Oath Keepers, the Proud Boys, that sort of thing.

And the blue team was focused on law enforcement and military. How much intel did they have? How did they actually manage the event? Zooming out from that, we had the gold team, which was really focused on the election issues, the Stop the Steal movement and the fake electors, pressure on the vice president, all of the context of the election fraud, false narrative. And then the purple team was about domestic violent extremism. This was the latest event in a whole series that we’ve seen around the country of domestic violence extremists coming together for particular reasons. And the purple team focused on that. And then finally the green team was the money team. They were focused on funding streams, identifying who paid for what, and then each of those teams had a senior investigative council, pretty seasoned lawyer investigator, and then additional people, some lawyer, some subject-matter experts, some sort of researchers, professional staff members. And all of them would coordinate their work and report to me and ultimately threw me to the members as we proceeded with the investigation.

Preet Bharara:

All right. So I got to ask you, Tim, who picked the colors?

Tim Heaphy:

That was a joint effort, Preet, as all of it was.

Preet Bharara:

Because there’s some colors missing.

Tim Heaphy:

It was hard to get the colors right. The way it works in Congress because-

Preet Bharara:

There’s no pink team.

Tim Heaphy:

No pink team. We propose things and then the members decide. So this was a staff-

Preet Bharara:

I think you should have had at least an orange team.

Tim Heaphy:

There was a team that was focused on malign foreign influence that started to call themselves the orange team. So people just ran with the color theme on their own.

Preet Bharara:

When you began this whole endeavor, did you and the committee understand yourselves to be on a clock? What was the time period within which you thought you had to work?

Tim Heaphy:

Well, we absolutely felt very motivated by a clock. And we knew that we had until the end of the Congress, the select committees, the legislation that created it made clear that the select committee would expire at the end of this Congress. Now, there was certainly a chance that it could be extended, but there was a decent chance that the Democrats would lose control of the House, which ultimately did happen. And given that uncertainty, we couldn’t count on continuing beyond the end of the Congress, and that meant that we were very focused on the end of 2022 as our hard stop deadline.

Preet Bharara:

So when you know you have that clock, and it seems like a long time in some ways, but knowing the massive effort that it was going to need and the hundreds and hundreds of people to be interviewed and thousands of documents, millions of documents, communications, were you a little bit overwhelmed at the clock?

Tim Heaphy:

Yes, absolutely. We felt it all the time. The mass of information that we were fortunate enough to receive, the volume of it, the pace of our work. It was strenuous. And there were times, yes, where we would get a huge production from a particular government agency or from an individual. And it took all hands on to go through that stuff and prepare for an interview. And now that was also really helpful, frankly, to have a deadline. Look, you know any investigation, you can try to cross every T and dot every I and talk to every witness, and that’s impossible. So in some ways it was frankly our friend that we said, “Hey, look, we had to prioritize because we had a deadline.” Without that, we could be at this for years and years and still be finding new information.

Preet Bharara:

So how did you prioritize? Did you literally sit down and create a document with a timeline setting forth who you’re going to interview? When did you just start serving subpoenas immediately? How’d you go about that?

Tim Heaphy:

Every team at the beginning had an investigative plan and a sort of aspirational calendar as to sources of information and the order in which they wanted to proceed to get that information. And then we just had to change on the fly. There were people that said no, that they didn’t want to come in and talk to us, believe it or not. And that required some adjustment in us trying to find other sources of information if that one wasn’t available. And then sometimes we got suddenly lucky with a new piece of information that prompted a new investigative angle and we had to change the plan. So there was direction at all times, and there was a sense of sequence, but it was dictated often by events, either fortuitous receipt of information or having to find ways around blockage when we were reaching out for particular sources.

Preet Bharara:

Do you get any particular marching orders or statement of mission from the chair or vice chair of the select committee in doing your work?

Tim Heaphy:

Yes. The very first conversation I ever had with Chairman Thompson, and this was consistent throughout, was we want to conduct a credible fact-based investigation, go follow the facts wherever they lead. And that was important to me. As a former Department of Justice official, I wanted to be part of a credible effort that was genuinely interested in getting the truth about what happened. And Chairman Thompson made clear from the beginning that there was no preordained outcome or no narrative that we were trying to corroborate, but rather an open-ended, genuine inquiry for the truth. And I took that seriously, and that’s how we approached the work. All of the members. That was Chairman Thompson’s direction, the vice chair, all the other members continually repeated that throughout our process.

Preet Bharara:

Now you were a former US attorney and I’m a former US attorney. Before I became US Attorney, I worked on a much smaller and less significant congressional investigation, but I’ve done both, just like you have done both. Can you describe for folks how you thought about the congressional investigation, given that the end product was not going to be an indictment or a declination to charge and how you thought about it in terms of evidence collection, who you talked to, the way you asked questions, whether you could do things differently because you didn’t have to worry about the rules of evidence and admissibility, just how did you think about all that?

Tim Heaphy:

Yeah, it’s a good question. There are a lot of differences, but essentially fact gathering is fact gathering. So most of the experience that I brought with me from my time as an assistant US attorney and as a US attorney was really portable, assessing who is credible, asking questions that follow up on and incorporate the answer to the previous question. Those basic skills, Preet, were the same in a congressional investigation, criminal investigation, whatever deposition in a civil litigation. There are those significant differences. One of which is that in this one, in a congressional investigation, particularly one of this profile, absolutely everything we did was really carefully scrutinized. So ideally in a criminal investigation, you’re operating largely in secret and you have a secret grand jury process and you can take investigative steps without knowing that that will immediately be reported and that everyone on the outside will be following the progress of your investigation closely.

That was not the case here. Everything we did was because of reporting, because of interests, interest level in our work was immediately made public. Even if we didn’t ever officially say anything, the fact that we had a certain witness in the fact that we had approached a certain witness that would often get reported. And that made it very difficult because there were a lot of people that said, “Hey, if I talked to you, it’s going to be immediately on MSNBC or it’s going to be in Politico that I came in and talked to the committee and that has ramifications for me, and therefore, as much as I’m rooting for you guys, I can’t really help you.”

So that the level of interest and scrutiny in which this occurred was very, very different. And then the other big thing that’s different as you said is that, look, we were not trying to prove anything beyond a reasonable doubt. We therefore were able to elicit a lot of hearsay and opinion and speculation. And in some ways that made the interviews more conversational and we were able to develop thoughts and theories and ideas that we knew would never be admissible in court, but were helpful to guide the investigation from people who were personally involved. So in that sense, it was a more open-ended inquiry, just a broad exploration of what occurred as opposed to, hey, we’re trying to establish the elements of this particular statute and therefore we’re asking questions to develop admissible evidence.

Preet Bharara:

Now you were doing your inquiry, and I don’t know at what point the Department of Justice started its inquiry that overlapped with yours, but obviously they were investigating January 6th as soon as January 6th. Did you, in your investigation and conducting these interviews and the other members of the staff, think about how what you were doing might impact or countermand or in any other way affect a DOJ investigation and DOJ interviews of the same people?

Tim Heaphy:

We absolutely did, and we had a lot of discussion with the Department of Justice about that. We were interviewing a lot of the same people that they were interviewing. It started really with rioters themselves. So as I said, we had a red team that was really focused on who was in the crowd, how much were they working together, and that really intersected directly with the early cases that the department was bringing against people that had breached the barrier of the Capitol. And they were very concerned that we were going to generate information that would impact, and it could be negatively impact their cases. Like if we interviewed witness X, but witness X had actually said, already been interviewed by the FBI and was counted on as a witness for DOJ, then said anything inconsistent to us, then arguably that is impeaching and the department would want. So they preferred that we not talk to anyone that they had talked to. They weren’t going to share with us information about who they talked to.

Preet Bharara:

Well, how is that going to work?

Tim Heaphy:

It’s going to be very difficult without them giving us information.

Preet Bharara:

But how is it going to work if you had acquiesced in their insistence that you not talked to anybody they had talked or, you don’t have to comment on this if you don’t want, they had interviewed so few people that it wouldn’t have affected your investigation overly?

Tim Heaphy:

They were focused first and foremost on what I’ll call the sort of blue collar aspect of this. The people that were literally breaking windows and destroying property at the Capitol. We were focused pretty much right away on the sort of white collar aspect of this, the political coup, all of the political machinations that went into the efforts to overturn the election. So in some ways, we were in parallel lanes. They were very nervous about us interviewing people that were charged defendants. So we established a process by which we would say to them, we’re interested in talking to the following charged defendants. If they were charged, DOJ already had a case against them, we would notify them and they to a person would say, we don’t want you to interview that person. And we largely accommodated that, but not always. There were times where we did reach out to people because they wanted to.

Some of these defendants had a very strong interest to cooperate with us because they wanted to get as much credit as they could when they were sentenced. So if defendant X had pled guilty to trespass at the Capitol or obstruction of unofficial proceeding, he wanted to be able to tell the judge, “Hey, not only did I talk to the FBI and turn in these people that were next to me when I did this, but I also talked to the J6 committee and I am a changed person and you should have leniency on me because I have been completely transparent.” So there was an incentive where they were aligned with us and the DOJ was sometimes reluctant. We had a very professionally courteous and communicative relationship. Well, communicative one way with us communicating with them. They were not very-

Preet Bharara:

Professionally courteous. That sounds like a euphemism.

Tim Heaphy:

Well, because they just weren’t going to ever share information with us. They do not-

Preet Bharara:

But you don’t blame them for that. You would’ve done the same.

Tim Heaphy:

Exactly. I knew that going in, it was not a two-way street. It was a one-way street.

Preet Bharara:

Right. But does it strike you as odd? So you have these two classes of potential witnesses, right? The blue collars, you refer to them, and the white collar, people at the Justice Department at the White House in Trump’s orbit, they were really concerned about the first category because they were interviewing those people and prosecuting those people. Is it odd a little bit that they weren’t worried about the second category? Because arguably they should have been thinking about them maybe at a later phase, and you still are going to have the problem of duplicative testimony, perhaps maybe even more in a more harmful way with respect to a higher level prosecution. Can you explain that? Do you think at that point where you were having these discussions, the department wasn’t really thinking about talking to and interviewing the second category of person?

Tim Heaphy:

Yeah. This is all speculation, but it seemed to us that they were not very focused or focused at all on the white collar aspect of this until well into our work. And I don’t know if that is a resource issue, if that is a prioritization issue, if there was some reluctance at the department to investigate something that seemed political, because the attorney general is so adamant that politics doesn’t govern the department’s work, which again, I respect and appreciate, but I think we were ahead of them candidly early-

Preet Bharara:

Oh, I think you definitely were. And when you say you’re not sure why they developed that interest when they developed it, I’ll tell you one theory. And I’ve said this on the podcast before, it’s because of your committee’s work, because of you. Do you buy into that?

Tim Heaphy:

Yeah, I absolutely do. Look, I think, as I said before, everything we did was under getting a lot of attention and there was a lot of scrutiny. So when we would interview Marc Short, the vice president’s chief of staff, everyone knew he was in, it was obvious that we were getting into areas where the political process was misused to try to overturn the results of the election. That got a lot of attention. And then when we started our hearings, obviously when we started telling pieces of the story, there’s no doubt that that motivated the Department of Justice. I think it made clear the reporting about what we were doing. And then as we started presenting some of our findings that there’s real potential criminal misconduct here, and that they cannot limit their inquiry to the blue collar breaking windows at the Capitol. They have to look at the political coup as well. And we ultimately as you know referred some specific people, in fact, criminal statutes-

Preet Bharara:

We’re going to definitely talk about that. But at the time, just jumping ahead a little bit since we’re on the topic, well, the Department of Justice started finally to look like they were wanting to interview some of the same people, the folks who were involved in the coup who were not breaking windows at that point. Did you get any feeling from the department that they regretted that you had done all these interviews already?

Tim Heaphy:

Yes, as the answer, and they wanted access to our interviews that we’d already done. So the tables were turned. At first, we wanted information that they had gotten, that the bureau had gotten about all the sort of Proud Boy, Oath Keeper, window breakers. Then we jumped ahead of them when it came to the fake electors and the misuse of the Justice Department and the pressure on the vice president and state legislators. Then, when they started really focusing on those white collar issues, they wanted to get information from us. So we had all this stuff, these interview transcripts of Marc Short and Pat Cipollone and all of these important witnesses who were personally involved and observed this stuff up close, and they hadn’t talked to them yet. And they knew that as they proceeded down that path, they would be made smarter and would have advantage if they could read what those witnesses had said to us. So they then made a really fulsome request for all of our information before we had finished our investigation.

Preet Bharara:

So why didn’t you turn all that stuff over immediately when asked?

Tim Heaphy:

Well, because we were still going. I mean, we had not finished our investigation, and when you turn something over to the Justice Department, there’s a chance that it will have to go to a criminal defendant. It will have to be disclosed publicly. And until we were finished with our investigation, we wanted to maintain its integrity and not have information out in the public domain that would potentially impact the cooperation of other witnesses. We knew that eventually all of this was going to be made public, that we were on a clock as we talked about earlier, and that it was just a matter of when and not if it was a sort of a sequencing issue that if they had to go interview Marc Short or Pat Cipollone before they read our transcript, they were going to get it eventually. So the facts were all going to come out. And until we were done, until we had finished gathering and presenting our findings, the committee decided it was not prepared to share that information because of fear that it would implicate the ongoing direction of the investigation.

Preet Bharara:

If you can say, who is the principal person on the select committee staff who was dealing with and negotiating with DOJ? Was it you or someone else, or a combination of folks?

Tim Heaphy:

Well, it was me in combination with the other staff leadership. But since I had had a lot of experience with the department before having been a US attorney, I was their point person.

Preet Bharara:

And you know these folks? These folks are friends of ours?

Tim Heaphy:

Exactly right. The current leadership of the department all the way up to the attorney general are people that I have known professionally. And that actually there was a level of good faith in terms of the discussions as a result of those relationships.

Preet Bharara:

But when those discussions are going on with respect to the people who had been in government and around Trump, I’m going to borrow your phrase again, did the relationship remain professionally courteous?

Tim Heaphy:

Yeah, it did. They were frustrated that we weren’t more prepared earlier to share information with them. And it was difficult to explain to them, look, you’re going to get it. It’s just a question of when. They wanted it yesterday and we said, “Well, no, you’ll get it tomorrow.” And that was a disagreement that I think we never really resolved until we finished the investigation. I think our work will really matter to the department. I do think there’s a lot in there that they will use successfully as Jack Smith and his team evaluates this, and we always knew that bottom line, they were going to get it. Again, it was just a question of sequencing.

Preet Bharara:

Now, putting on your DOJ hat for a moment, I wonder if you agree with something that I’ve said before, and that is because the department has a different function and mission to either build cases or decline to bring a case that they couldn’t rely or can’t rely solely on the interviews that you folks did, that they in all likelihood have to re-interview everybody that you did to the extent they bear on a particular criminal case they’re going to bring. Do you agree with that?

Tim Heaphy:

I do. I absolutely do. I think they wanted our material to inform their own subsequent fact gathering. So let’s say they scheduled an interview with Pat Cipollone, they would be much, much smarter in approaching that interview by knowing what he had said to us. You’re exactly right, Preet.

Preet Bharara:

So they do get some consistent, because people understand, and we’ve talked about this before, but inconsistent statements by witnesses who have been asked questions in multiple forums and in different times. That’s the way to lose a case at trial.

Tim Heaphy:

Absolutely. Exactly. So they want to know what Cipollone had said previously to inform what questions to ask him, whether to ask him the same questions, how to shape, first of all, just to learn what he knows, right? They’re trying to just investigate open-mindedly, figure out what happened. But then when they put him on the record and their grand jury process, which of course, as you said, they’re going to make their own record and not rely exclusively on ours, that’s just a more educated process when they have access to the work that the select committee had done before.

Preet Bharara:

Let’s do a quick tail of the tape. Do you know off the top of your head how many people the committee interviewed, how many documents reviewed, that kind of thing?

Tim Heaphy:

Sure. We interviewed between 11 and 1,200 people. Those were not all on the record interviews. We had about between four and 500 that were actually transcribed, either in a deposition where the witness is under oath or a transcribed interview where the witness is transcribed but it is not under oath. We had over a million documents, and those came from lots of different government agencies, private company subpoenas, and then stuff that individuals gave us. All of that was assessed manually. Those interviews were all taken by select committee staff, and every single piece of paper that we received, every document, electronic or physical, was reviewed by select committee staff. So it was a massive amount of information coming into the top of this funnel. And then out the bottom came our report.

Preet Bharara:

We’ll be right back with more of my conversation with Tim Heaphy after this. I want to talk about the hearings. They were well done. They were really great. And one of the reasons they were great I thought was they were not overly long. They’re pretty streamlined. Audiovisual effects were terrific. It’s been reported, and I think understood that people who were expert in television production were involved. Anything about that, the involvement of that kind of professional, offend any of your sensibilities from the department?

Tim Heaphy:

Not really. I got to say, look, before I started this job, I read the 9/11 commission report, and going into this, we all sort of looked at the 9/11 commission is kind of the gold standard of a sober effort that looks at a horrific tragedy and tries to make sense of it. But look, we realized pretty early that America is very different now than it was 20 years ago in terms of how information is disseminated, processed, and understood by people in this country. If we just put forth a written volume like the 9/11 Commissioner report, it wouldn’t have near the same impact today as it did 20 years ago. Because again, in the age of social media and the way in which our news is delivered, it has to be done more visually.

Preet Bharara:

Also we have no attention span anymore.

Tim Heaphy:

Well, that’s right.

Preet Bharara:

We as Americans have zero attention span.

Tim Heaphy:

Certainly shorter than we had before. And look, our members, I give the members of the committee credit here. They knew that our hearings in some ways were going to be really crucial in terms of educating the public about what happened. And I remember Zoe Lofgren, one of the members of the committee said, “Are we videotaping all of our interviews?” And this was right in the beginning and we had done a few early ones that we had not videotaped. And I think we said, “Well, no, ma’am, we’re not yet.” But she said, “Well, we should.” And she was right because we pretty much, even before the end of 2021, started recording all of the interviews so that we could use portions. I mean, that was mindful that we were going to use-

Preet Bharara:

No, I think that was very smart. I think that was very wise.

Tim Heaphy:

I agree. And then when the committee hired James Goldston, who was the former president of ABC News, who’s produced Nightline for years, he and his team collaborating with investigative counsel. So lawyers saying, “Hey, here’s what I think’s important.” And TV people saying, “Here’s what I think really resonates or these are the clips or the moments that I think are really powerful.” That collaboration is what informed the presentation at the hearings. And people say, “Well, there’s no cross-examination and it was one-sided,” it was not really a hearing in the classic sense of a congressional hearing. It was more of a presentation of our findings. And look, we were pretty harshly cross-examining certain witnesses ourselves just to give the process integrity on the record.

Preet Bharara:

But you didn’t show that. That you didn’t show.

Tim Heaphy:

We did not, that’s right. Well, sometimes we did. I mean, we did show some exchanges, some sharp questioning where we pushed back against some people, or we tried to push against privilege lines. But again, the point of the hearings was not a trial where there were two sides presented. It was a presentation of our findings and I think they were intellectually honest. I think they were consistent with what we were finding. I don’t think they were misleading. We weren’t hiding Brady information or exculpatory stuff in any way. There were previews of chapters of what we were learning, what we were finding, and all of which we knew at some point the doors would be thrown open all of the interviews, all of the documents would be made public and was confident during the hearings that what we were presenting in the hearings when all the information came out was going to be fair and objective and corroborated.

Preet Bharara:

I want to ask you a question or a version of a question that I got a lot about the committee’s work, and maybe you can explain it because you were in the mix. So people wanted to know how the committee decided which witnesses you would play hardball with, which witnesses they would accommodate and come up with parameters for, which ones would get subpoenas, which ones would get subpoenas first, which ones would get subpoenas later if negotiations broke down. Can you describe a little bit about how the committee thought about approaching witnesses and why some differently from others?

Tim Heaphy:

Yeah, that’s a question that really depends on the witness. We approached everyone in good faith with the open-minded hope that he or she would come forth and provide relevant information. And some people did, and they either themselves or through counsel were very forthcoming, and we worked with them on the time and the place and the manner of their provision of information. Other witnesses were not and didn’t operate in good faith and would sort of string us along or would suggest that they would do things and then not. And that required more hardball tactics. We have the power, the committee had the power to subpoena witnesses. We used it when necessary to compel testimony or the production of documents. Some witnesses wanted that. Some witnesses needed the compulsion in order for them to be able to come forth. They felt like-

Preet Bharara:

They wanted to be compelled. They didn’t want to look like they were volunteering to say bad things about some of their former colleagues.

Tim Heaphy:

Exactly. That’s right. So it was sort of a, I don’t want to call it a dance because that implies that it was not fair and straight up, but it was a negotiation with all of these witnesses if they were willing to negotiate. And in any negotiation, good faith earns good faith and there were a lot of people that we accommodated because they were acting in good faith. And then there are other people that just weren’t acting in good faith, and we weren’t able to accommodate them, and they got a subpoena.

Preet Bharara:

So people will ask the question, I don’t know if you can answer it, why no Mike Pence?

Tim Heaphy:

Well, that’s a product of negotiation. We spent a lot of time talking to the vice president’s team and representatives. We had the core story of what happened with the vice president, his chief of staff, his chief counsel, his director of legislative affairs, his military advisory. And we had a lot of information about Vice President Pence, his position about the election, what he did on January 6th and the days therefore. So while getting information from him, I still believe would’ve been really important and significant, it was not a factual hole that we needed to fill. He’d also made a lot of public statements about what happened. He wrote a book where he went into this. So there were alternate ways of getting it. We ultimately were not able to get him to come in voluntarily in the committee since it was very late, decided not to serve a subpoena on him. But again, I think we had the core story of what the vice president did, and frankly, the strength that he showed and doing the right thing on January 6th.

Preet Bharara:

But people listening to your answer will say, and I agree with that all makes sense to me, given the ultimate mission, the Department of Justice won’t have the luxury of not talking to Mike Pence, but they’ll say, “Well, it was very late in the game when the committee issued a subpoena to Donald Trump.” Can you say anything about the thinking with respect to that timing?

Tim Heaphy:

Yeah. In investigations, you want to be prepared to talk to the principal once you have exhausted every other lead, right? You work up at the chain of culpability by talking to people lesser in a conspiracy or lesser in an organization. And President Trump was the primary actor here. He was the person whose words and deeds were primarily responsible for the attack on the Capitol as our report ultimately showed. And as a result of that, before reaching out to him to give him an opportunity to describe events from his perspective, we wanted to be prepared. We wanted to have done everything else that we could have in advance. And that’s why the timing of a subpoena to the former president was so late in the game. We knew going in that if it was unlikely that he would say, “Sure, I’ll be there on Tuesday at 10 o’clock in your conference room,” that he would likely resist. But we also wanted to be prepared in the event that he was going to provide some testimony to the committee to have those questions be informed.

Preet Bharara:

Well, since we’re on it then, can you explain or give some understanding to the public about why that subpoena was withdrawn at the end?

Tim Heaphy:

I think because there was pending litigation and the committee was expiring.

Preet Bharara:

So what’s the point?

Tim Heaphy:

Yeah, exactly. It was a dead letter at that point.

Preet Bharara:

You don’t have to be litigating something that was moot.

Tim Heaphy:

Exactly.

Preet Bharara:

There were some hearings that, I mean, I think they were all riveting, but some more spectacular than others. And the one that I’ve focused on and I thought had the greatest impact, and you can rank them if you want, and you don’t have to if you don’t want to, but the hearing with Cassidy Hutchinson, former aid to the chief of staff in the White House, there were some things that were interesting about that. One interesting aspect of that was it happened suddenly, at least from the public’s perspective, the House was in recess, so members of the committee had to come back and lock in that testimony. Can you explain what the urgency was and what the thinking was about that one and what you thought the impact of that particular hearing was?

Tim Heaphy:

Yeah, I agree with you that it was impactful. It’s hard to say which of them were more impactful than others, but so Ms. Hutchinson was a crucial witness. She came in courageously and told us some things that others had not, and she also did it under great pressure. As you’ve seen now in our final report, she was originally represented by a lawyer who was paid for by folks in the Trump world, and she felt pressure to say certain things or not say certain things as a result. This was all unfolding very rapidly just before her hearing, she had a new lawyer, and she was saying some things that she had not previously said, and we are concerned, frankly, about her safety and about whether or not that pressure would be brought to bear more directly.

So for all those reasons, the decision was made a credible witness who’s telling very important and relevant information under a great deal of pressure, experiencing potentially some threats or certainly generating extreme hostility. And for all those reasons, we need to get this testimony out there quickly and can’t wait weeks and weeks and weeks or months and months. And that’s why the committee made the decision to put her on in her own hearing in a relatively hastily arranged proceeding in June.

Preet Bharara:

Can you remind people what aspects of her testimony were so compelling and why they were probative of Donald Trump’s state of mind in particular?

Tim Heaphy:

Yeah. I mean, she was Mark Meadows’s chief aid. Mark Meadows was the White House Chief of Staff and had forwarded the select committee subpoena. I mean, there’s probably no one more centrally involved in both what happened on January 6th itself and the political stuff that happened in advance than the chief of staff to the president. And in lieu of him, his chief assistant who was willing to talk to us about private conversations and things that she observed, the things that she said were going on in the White House on January 6th was really, really important.

So for Ms. Hutchinson, it was both the political strategy, the objections filed by members of Congress, the outreach to state officials and state legislators. She was in the room when all of that happened leading up to January 6th. And then on that day, she was in the White House, and she gave us a glimpse into what was happening and what was not happening inside of the White House as the riot was unfolding. And those were just crucial, crucial moments for us. And her testimony was so compelling because she gave us that in the room where it happens perspective that we weren’t getting from her boss or from some of the other senior people at the White House. I think her testimony has been largely corroborated. She’s a very courageous young person who raised her hand at great risk and personal sacrifice, and it made a huge difference in the hearings and in our ultimate findings.

Preet Bharara:

I don’t know if I have the timing right, but is there any correlation between the timing of Cassidy Hutchinson’s testimony and the uptick in activity from the Department of Justice?

Tim Heaphy:

Yeah, they’re roughly contemporaneous, I think, once.

Preet Bharara:

Is there causation there, Tim?

Tim Heaphy:

Yeah. Well, look, the Department of Justice is primarily focused on evidence of the former president’s intent. The whole ballgame as Jack Smith and his team assesses these facts well is there evidence that he specifically intended to disrupt the official proceeding? Did he act corruptly? They have to provide evidence beyond a reasonable doubt that he did. Cassidy Hutchinson provides some pretty detailed evidence of the president’s intent, just what she testified in terms of his very strong desire to go to the Capitol on January 6th to accompany the rioters as they move to the Capitol, really, really probative about his intent, what’s on his mind, his refusal to act during the riot, very directly relevant to his state of mind. So yes, her testimony speaks directly to the crucial issue I think that the department continues to evaluate evidence of the president’s state of mind.

Preet Bharara:

Well, I guess we can jump ahead because you opened the door to the fact that the committee made specific referrals and pointed to particular statutes that it says their evidence showed were broken, violated. Do you understand the argument that some people have made, and I’ve made a version of it, that it was not helpful to make a criminal referral that the department’s looking at this any way, Jack Smith, who you referenced is in charge as a special counsel, maybe it’ll look like it’s putting undue political pressure on the department? Can you talk about the committees thinking about that and respond to those objections?

Tim Heaphy:

Yeah. This is an area where I have to be careful because I just am not at liberty to get into the internal deliberations of the-

Preet Bharara:

But a sense of why it went the way it went.

Tim Heaphy:

I can say, first of all, absolutely, I am mindful and the committee was mindful of the risk that, is there a risk that by making a criminal referral, you’re casting this in the light of the political, and for Merrick Garland, who’s notoriously apolitical, is that helping or that hurting the chances of a criminal indictment or helping it? There’s no question that was a legitimate concern that was one of the things that into the committee’s deliberation about whether or not to issue criminal referrals.

I think the bottom line though was that there were a lot of reasons to do it, there were some reasons not to do it. Going back to what Chairman Thompson said, follow the facts wherever they lead. The facts led inexorably to violations of federal criminal law. And to not say that when we had developed such, in our view, overwhelming evidence of criminal conduct would’ve seemed incomplete. And this was really a fact driven decision that when we took a step back and looked at the overall body of evidence that we had developed, it just seemed really clear that certain criminal statutes had been violated. And we wanted to lay that out in a very specific way and cite those particular statutes in our report. And that ultimately just, again, following the facts that’s where they led, and that’s why that referral needed to be in the report.

Preet Bharara:

Do the department is a bit miffed about that or not?

Tim Heaphy:

I don’t know. It’s a good question. I don’t know that it really matters, to be honest, Preet. When I hear the attorney general say, “We’re going to make a decision that based on the facts,” I credit that, and I don’t know that the committee’s view is going to move the needle on that. I think they’re going to look at the same facts that we have looked at. They’re probably going to get some additional facts. They have some levers to pull that we don’t, they may be able to overcome some privilege assertions that we could not in a grand jury because we don’t have that power. So I’m hopeful that the statute it’s just one part of the body of evidence on which they will make a prosecutorial decision. I have trust and confidence in the people that are making that decision to make the right one.

Preet Bharara:

Is it your understanding that what the committee is conveying to the public by making the referral that there’s a lot of smoke here and it’s worthy of a criminal investigation? Or are they saying we think our evidence isn’t covered enough to show that there’s probable cause that these particular statutes have been violated? Or are they saying if it were our judgment to make, we would charge the case and there’s a reasonable prospect of proving it beyond a reasonable doubt or none of the above?

Tim Heaphy:

Yeah, I think it’s a combination of two and three there. I think if you just look at what we were able to gather, the interviews, the documents, that there is a triable case of obstruction of an official proceeding, a triable case of a 371 conspiracy. I think the department, as I said, has the ability to go further to develop facts additionally. Now, maybe some of those facts will be exculpatory and it’ll change the decision. Maybe some of those facts will strengthen the case and it will make it an even stronger demonstration of obstruction of an official proceeding or conspiracy. So I think the committee felt like what we have gathered and in our evaluation establishes the violation of those statutes just strictly even with not going any further. The department is going to go further, and I’m looking forward to hearing what they find. But I think unless it’s exculpatory, there is enough evidence here to prove those criminal offenses beyond a reasonable doubt.

Preet Bharara:

So now I’m going to ask you to make predictions, which I’m guessing you may not want to do, do you have a view on whether or not the department will come to the same conclusion?

Tim Heaphy:

I don’t. I know that they are moving aggressively. I know that they have now received all of our information, not just the criminal referral that’s in the report, but the sort of raw material that informed that referral. They’ve gotten all of the transcripts, they’ve gotten all of the documents. So they’re going to not just see the sum at the end of the equation, but they’re going to see the worksheet that led to the equation being formulated in the first place. And look, I’m veteran of the department, and I have a trust and confidence in the people that are there to make a good decision. There may be stuff that they get that we haven’t seen that will take this in a different direction. But I’m telling you, after looking at this, spending my life for 18 months looking hard at this, there’s evidence there for a criminal case and absence something surprising. I think that means there will be a criminal case.

Preet Bharara:

We’ve also, as we’ve discussed, you have some sense of where the department is and how much information they’ve got and when they’ve gotten it, and you’re a veteran of the department and you understand these cases and how they unfold. Do you have a prediction as to what the timing might be on a decision to prosecute or not prosecute Donald Trump?

Tim Heaphy:

That’s a harder to answer. I know they’ve staffed up right away. I know that special counsel essentially brought in leadership from the DC US attorney’s office that were already working on these cases. So it’s not as if they started from scratch. They brought in people that were already looking at these facts. I certainly think that this is the kind of case that needs to move expeditiously. They cannot let this spin out for a long, long time. We have in two years a presidential election looming that’ll be impacted by this. So I think for all those reasons, they’ll move quickly, but they’ll also move deliberately. I don’t know that there’s any kind of arbitrary internal deadline. They’ll put enough bodies on it to move fast. They’ll assess the huge amount of information that we got, decide what to take further and make a decision, I would think sometime soon, sometime this year. But I don’t really have a clear sense as to what their timing is.

Preet Bharara:

Going back to something that happened earlier in the process, how big a deal did it feel like to the members of the committee to make a criminal referral for contempt with respect to Steve Bannon, for example?

Tim Heaphy:

I mean, that was a crime against Congress. I think the members of the committee when people just completely thwart a compulsion of a congressional subpoena were really bothered by that. And there was a very strong sense with all four of the people that we ultimately referred for prosecution that this is a crime against the system, a crime against Congress, crime against this sort of larger truth seeking endeavor in which we’re all engaged. So they were, I think, very pleased that the department pursued a couple of those. One still pending. And the other, as you said, is resulted in a conviction and a sentence disappointed that the department did not pursue the other two that were referred.

Preet Bharara:

That reminds me of the question that people have asked a lot. Do you have, based on this experience, a view about whether or not Congress should unilaterally and on its own enforce its subpoena power in a way that has real teeth?

Tim Heaphy:

Yeah. I don’t think an inherent contempt giving Congress, which technically they have this power, and there was some discussion of whether Congress could literally send a sergeant in arms to go pick somebody up and put them in a jail cell until-

Preet Bharara:

First, you need to build a jail cell.

Tim Heaphy:

I mean, yes, there needs to be a mechanism to enforce an inherent contempt. I actually like the fact that this is a separation of powers issue or a check on potentially abusive Congress to make sure that there’s executive check on this power. So a referral process to people that are used to assessing whether or not crimes have been committed makes some sense to me. It’s frustrating and cumbersome and it allows witnesses to essentially run out the clock because they knew with us that, hey, if they just continued to stall that they could not be legally compelled. But I would be a little troubled, frankly, by Congress all in and of itself, having the unilateral authority to hold somebody indefinitely. Before I leave that, let me just say that’s my personal view. I’m speaking for myself there, not the members of the committee.

Preet Bharara:

So you wish for this report and I should let you know that I was critical of one thing, and that was the length of the executive summary. I got to tell you, Tim, 154 pages. Defend yourself.

Tim Heaphy:

Yeah. It’s not really a summary. Yeah. Again, I can’t really share with you the reasons for this or how that came about. I think there was a desire to tell the entire story in a way that was shorter than the Folsom report, but it was maybe more detailed than you would expect in an executive summary. You could read the executive summary and essentially see the core findings of the rest of the report. It was longer than a lot of people expected, Preet, but I can’t really go into how we got there.

Preet Bharara:

Okay. I will accept that for now. But the ratio of pages in the summary to the final report was not optimal.

Tim Heaphy:

I understand.

Preet Bharara:

What was the point? Is there any point to the final report other than just laying it all out and that’s a fine mission for a final report for posterity? Or was there something else that was hoping to be achieved?

Tim Heaphy:

Yeah, this is the hearing spoke today, the report speaks to history. So I think there’s stuff in the report, and importantly, you have to look at the appendices to the report because they’re also really important. That is the broad material, the broader context. Some of the facts that didn’t make it were left on the cutting room floor as we were presenting the hearings, but are also really important to the overall story. So it’s an 854-page report with 150 some page executive summary. As you said, that’s a lot of information, but it was important to put all that together for history. We were mindful from the beginning that we are really writing here for an audience that will, and some of which has not even been born yet. This has to be put into a historical context, and it will be studied and used as a reference for many, many years. And that’s very different from the hearings, which were meant to educate the public about our core findings immediately. So yeah, there’s a lot in there. It’s really pithy. It’s really detailed. The footnotes in particular are really cumbersome, frankly, to go through.

Preet Bharara:

But it’s well written. It moves along. Just a bit long, particularly for people who had to cover it and read everything. As I said, I think I’ve said already in this conversation, it’s great to have you in part because I get to ask you questions that people have been asking me for 18 months. And you are a better source of answers for these questions. Do you think that at the end of the day, the hearings, the committee’s work, the report changed a lot of minds?

Tim Heaphy:

I don’t know, Preet. It’s a good question. It’s one I’ve fought a lot about. I operated in somewhat of a cocoon here over the period of this investigation. It’s really hard to know outside of the cocoon if it’s really making a difference. I hope so. Look, I think going into this, I think maybe a third of America already had made up its mind about what happened on January 6th and about the former president. Another third, similarly had made up its mind, but in a completely opposite direction. But there’s a middle third of people in this country that I do think are reachable or are persuadable or maybe didn’t have a clear sense as to who was ultimately responsible, what happened, and what ramifications should that entail going forward politically and otherwise. And I’m hopeful that enough people in that middle third were influenced, have been influenced by the work that we did.

And then I think there’s a larger point about history. Democracy is something that is I personally to relatively took for granted. We live in a democracy. Our systems work. They’re durable. That’s true, but they rely on the good faith of the people that work within systems. And we came close here to having those systems break down. But for the courage of people like Vice President Pence and Brad Raffensperger and Jeffrey Rosen and Rich Donoghue at the Department of Justice. I mean, the heroes are evident from our report. Democracy could have failed. And that realization alone really ought to wake people up. It ought to make them participate. It ought to make them invest in civic life and make sure that they do their part to protect democracy. That’s my big takeaway and I hope enough of America shares that.

Preet Bharara:

This is obviously a deadly serious, literally deadly, serious undertaking, took a lot of labor. I’m sure you’re exhausted. Were there any lighter moments in the process?

Tim Heaphy:

Oh, there were lots.

Preet Bharara:

Any at all?

Tim Heaphy:

Yeah. Yeah.

Preet Bharara:

Any you can share with us?

Tim Heaphy:

I will say the thing about it that I’ll always feel fortunate to be a part of was that caliber of people that this thing attracted. We were able to hire about 25 lawyers who left law firm partnerships, who left US attorney’s offices, who left other congressional committees to drop what they were doing, often at a huge personal and financial sacrifice, and work as hard as they ever worked for 18 months, sometimes really far from home. And there was a sort of sense of the mission or sense of purpose that came with that.

And while it was hard and it was grueling, the esprit de corps or the caliber of the people on the team was invaluable. I’m really proud of the people and the work that we did is a tribute to them. So there are a ton of light moments when we were… Yeah, we’d have a witness walk out the door, and then 10 minutes later we’d see on CNN, on the cron underneath X, it was before the select committee today. And we would look at each other, how the heck is this stuff such so immediately out there? And then we’d listen to people like you and Joyce Vance and my friends talk about assessing where we’re going and what we’re doing. And we would spend a lot of time listening to the commentary about what we were doing and joke up between ourselves as to how right or how wrong that was.

Preet Bharara:

Wait a minute. Wait a minute. Sometimes we were wrong.

Tim Heaphy:

Sometimes we were misguided. It was like when you’re in a fish bowl, you saw the other fish in the bowl when they’re looking and talking to each other.

Preet Bharara:

I’m surprised we’re only sometimes wrong. Joyce and I were talking today about our sentiments when Jack Smith was appointed special counsel to look at among other things, not just this material that we’ve been talking about, but also the Mar-a-Lago documents. We did not know as Merrick Garland knew at that time that there was a document issue with respect to President Biden as well. And in retrospect, you realize as a “pundit” that you don’t have all the facts and all the information and a lot of it’s speculation. And you folks know what is what. And sometimes we find out information later that would’ve made us better commentators in the moment. Well, you’ve been very generous with your time.

Tim Heaphy:

Thank you, Preet.

Preet Bharara:

And amazing insights because you were in the room where it happened, as they say. Tim Heaphy, thanks again, my friend. Thank you for your time. Thank you for your service.

Tim Heaphy:

It’s my pleasure, Preet. Thanks for the invitation.

Preet Bharara:

My conversation with Tim Heaphy continues for members of the Cafe Insider Community. To try out the membership for just $1 for a month, head to cafe.com/insider.

BUTTON:

To end the show this week, I want to share a story that really struck me. It’s about British writer and director Hanif Kureishi. Among other things, he wrote My Beautiful Laundrette and The Buddha of Suburbia. As reported by The New York Times, the day after Christmas, Kureishi had a bad fall while with his family in Rome. He was immediately rushed to the hospital where he has been ever since under the care of a team of doctors and his loving family. The fall, for unknown reasons, left him unable to move his arms and legs. What’s extraordinary about this story is that he’s been documenting his ongoing trauma and recovery on Twitter through dictation, and his tweets have gone viral. He posted a few days after the fall, “For a few days, I was profoundly traumatized, altered, and unrecognizable to myself. At the moment, it is unclear whether I will ever be able to walk again or whether I’ll ever be able to hold a pen.”

He solicited any advice, guidance, or recommendations for voice assisted hardware in his post. And he was met with an overwhelming response. And since arriving at the hospital, he has been writing daily dispatches from his room with the assistance of his son. Written both on Twitter and through a newsletter called The Human Files, Kureishi recounts in beautiful detail the ups and downs of his days in recovery, from what he watches to what he drinks, to his changing relationship with his family members, to what he feels about the blurriness of his future, all in real time.

Yesterday he wrote, “My new roommate talked throughout the night in his sleep. Of course, in Italian. I can’t say he bothered me. You can get used to anything. He recounts watching Breaking Bad with awe at how great a show it is.” He details when the nurses come in, he says, “They attach me to the machine which lifts me from my bed. For a few moments, I hang in the air like a fly. My limbs dangle down beneath me. Then it places me nicely in a wheelchair.” The reader follows him through a day of realizations that he wants Italian citizenship, that he spent his first hour ever in a gym, that his body is responding to physical therapy. “This has been the best day so far,” he writes. And finally, he signs off for the day, “In these shitty but sometimes heartening times, your loving writer pal, Hanif.”

His story is at once harrowing and inspiring. The Human Files are filled with honesty, humor, bravery, and lovely, lovely prose. They allow people who care for him and people who don’t even know him to follow and support him on his difficult journey, one that it seems he approaches with grace, and that can be one of the hardest things to do in the face of life altering hardship.

So I’ll be following the story, and I hope for him and his family that he makes a full recovery. And that one day soon he will as he says, “Go back to using my own precious and beloved instruments.” For now, I’ll leave you with something he wrote recently that has stayed with me, “I wish what had happened to me had never happened, but there isn’t a family on the planet that will evade catastrophe or disaster. But out of these unexpected breaks, there will be new opportunities for creativity. If you were with me tonight, we would each pour a large vodka with a juicy mixer and drink and embrace each other with a little hope. That’s all for tonight, folks. More tomorrow, more optimism, more jokes.” Amen, sir. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Tim Heaphy.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the #AskPreet, or you can call and leave me a message at 6692477338. That’s 66924 Preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The Cafe team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.