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

Happy New Year everybody. Welcome to 2025. I hope you got some time away from work, away from the grind, and you got some quality time with family and friends. I hope you spent some time feeling gratitude, gratitude for your life and life’s blessings. As our last guest, Laurie Santos, prescribed, gratitude is one of the keys to happiness. I hope also you got some time away from the daily diet of politics and nastiness.

For our part, the Bharara family finally took an epic vacation, one that we had long dreamed about, literally for years, but school and work and budget seemed always to get in the way. We traveled to the other side of the world, all the way to India, where 56 years ago I was born and from where 55 years ago, we left for a new life in the west. Our kids had never been, and but for a very short business trip in 2017, I hadn’t been there in 25 years. We went to have a look at our family’s past and our origins, modest and far-flung as they were, but also just to have a good time. For 13 days, we gazed upon ancient forts, explored ornate palaces, learned fascinating history. And we ate. Boy did we eat.

So this was our planned escape from work and school and from the daily diet of politics and nastiness. And I mostly succeeded in that escape, but for about a day and a half. The culprit as usual was Twitter or X. We began Christmas Day with the sunrise tour of the Taj Mahal in Agra. I can report that the early light on that majestic marble mausoleum defies description. Later, we drove several hours to the old city of Jaipur. Late that night, Christmas night, I scrolled social media. What a mistake that was. I thought someone had screwed with my algorithm. An angry unhinged ad hominem and largely fact-free fight had broken out in post after post, after post, ostensibly about the fairness and wisdom of H-1B visas, the relatively small visa program meant for highly skilled immigrants. But much of the discussion wasn’t about policy, but reflected virulent hatred and animus towards people from India who dominate the H-1B visa pool, about their color, about their character, about their IQ, about their hygiene, and about their ethics. A torrent of gross generalizations disguised as a debate about immigration.

Now as you can imagine, this was starting to pissed me off because these people were directly or indirectly about me and my family. My dad didn’t come to America on an H-1B visa. They didn’t exist in 1970. But he did come legally as a highly skilled medical professional when America had a desperate need for doctors. He didn’t take anyone’s job, and all my family has ever done since emigrating is work and contribute and honor the values of the United States of America. My parents taught their sons to work hard and play by the rules and give back. I have spent most of my adult life in service to America. It is the proudest part of my professional life. My patriotism is second to no one’s.

Now, don’t get me wrong. We can and should debate the H-1B program. We can discuss its flaws. We can discuss the numbers and the needs. There is fraud and abuse. We can address that also. Name a government program that’s fraud free. U.S. workers should come first and we should have more training. All of that is fair game, but that’s not what my Twitter feed was showcasing. There were lots and lots of posts from large Twitter accounts, like this one from an account with more than 182,000 followers. “I’m cool with H-1B visas, but only if they’re white”. Or this one from an account with more than 57,000 followers, “Better a million illegal white immigrants than a hundred legal Indian immigrants.”

Now, as I said in the last podcast of 2024, one of my New Year’s resolutions was to work on being calm, on picking my battles because there will be so many. But calm doesn’t mean passive, it doesn’t mean mild or soft or anodyne. Calm doesn’t mean patience for despicable people or despicable ideas. And so if you’re one of those people who hates legal immigrants based on the country they come from or who questions my loyalty to America or who traffics in the worst racism and xenophobia, let me say in the calmest tone I can muster, if you’re one of those people, you can go fuck yourself. Happy 2025 everybody.

It’s time for a short break. Stay tuned.

Hey folks, quick note. Going forward, I’ll be answering listener questions at the end of the show so we can get right to the interview. So make sure to stick around after the interview.

So you can have two different reactions to this cynicism about institutions or lack of faith in institutions. One is anger, which we saw play out dramatically at the Capitol. But the other is apathy, and my fear Preet is that a lot of people say, you know what? It just doesn’t matter who I vote for, if I engage, if I talk to other people, if I try to educate myself.

That’s Tim Heaphy, a former U.S. Attorney and the lead investigator into the January 6th attack on the Capitol. Now he’s out with a new book, Harbingers: What January 6th and Charlottesville Reveal About Rising Threats to American Democracy. We discussed the parallels between those two events, the motivations driving their participants, and why distrust and institutions is on the rise, plus his urgent warning about the threats that disengagement and apathy pose to our democracy.

Tim Heaphy, my friend, welcome back to the show.

Thanks, Preet. Good to see you.

So we’re recording this on January 6th, which has obviously great significance to the country, will be historically, and also jibes with the publication of your book. Before we get into your analysis, and congratulations on the book by the way, and it’s very important stuff, I’m going to ask you some pointed questions about why we care, why it’s relevant and what the solutions might be, but before we get to any of that, just remind folks or tell folks how you felt as a citizen, a former U.S. Attorney, someone who had focused on the violence at Charlottesville, on January 6th, 2021 as it was unfolding? What did you make of it as the news reports were coming out bit by bit that day?

It was hard to imagine really. I was sitting in my office at UVA, I was the general counsel at the University of Virginia, dumbfounded. But immediately Preet, started remembering Charlottesville and what happened. Everybody who lives where I still live in Charlottesville is seared forever by witnessing that kind of violence, political violence, racial violence. So it brought all of that back immediately. So sort of a combination of disbelief and oh yeah, we’ve experienced that here locally.

Did you begin to perceive, or at what point did you begin to perceive that it was a really bad thing? I remember being in my home because it was still the pandemic and being very excited that Biden was going to come in and this was a pro forma event, and then sort of bit by bit as the news began to trickle out of violence and then we saw people wielding firearms and we saw sorts of other footage. When did you begin to understand that it was a significantly violent event?

Yeah, it was same as you Preet, watching it on television and seeing it go from an angry crowd at the ellipse, that was predictable, to a mob bent on violence and destruction. That evolved over the course of a couple of hours in the afternoon. What really immediately struck me was the use of bike racks. Charlottesville, again, similarly the passive law enforcement preparation was we’re just going to put these bike racks separating us from them, or in that case different groups of protesters. The bike racks are mobile, are easily lifted and used as weapons. And when I saw that happening at the Capitol kind of on their way up toward the building, I was like, yeah, this looks very similar to what we saw in Charlottesville four years prior.

Okay. So you were alarmed, concerned as a citizen about the violence. Explain at what point you became more sanguine and understood properly that this event was just a bunch of tourists? Did that happen immediately, Tim, or did that take some time?

I’m still waiting, Preet, still looking for that evidence and waiting for it.

Well, embedded in that obnoxious comment is a real question, and that is my recollection was that in the aftermath of January 6th four years ago, there was almost uniform condemnation, there was almost uniform anger and worry, on the part of people of both parties, in particular the members of Congress who were in harm’s way. Mike Pence, about whom it was chanted hang Mike Pence. How did a thing like that based on your ongoing research and reporting and analysis? How did that go from everyone understood this to be a bad thing in a shameful moment to A, yeah, it wasn’t so bad, it was a bunch of tourists? And B, Trump on the verge of pardoning, many if not all of them? How did that happen? And I know you’re not a social scientist, but be one for a moment.

Yeah, well, the first thing to note here is that the narrative has changed. As you said, the initial narrative was, oh yeah, this was awful, but it wasn’t us, right? It was FBI plants that were stoking an insurrection, or it was Antifa folks masquerading as Trump supporters. There’s no evidence of that. So the narrative changed to, oh, well, it actually wasn’t that bad. It was a peaceful protest. A handful of people, got out of hand, but that was really anomalous. It was a day of love and harmony. None of that is true. It changed because of pure politics. It changed because a lot of craven members of Congress on the Republican side refused to follow through on their condemnation or act in accordance with their initial impressions.

Yeah, but I guess I’m going to ask it another way, and I don’t know that there’s a reasonable and good and satisfactory answer. It’s not like the stuff that happened on January 6th happened behind closed doors. There’s video, there’s audio, there’s a series of data points and facts, and it’s one thing for a conspiracy theory to hatch or for whitewashing to happen A, when things are long ago and memories have faded, whether that’s about Vietnam or the ’60s or some other event that’s far from our current memory, but then also B, that was documented. What allows for, and what concern do you have about the fact that something that was so raw and documented and palpable could have the narrative change so much in such a short period of time?

Yeah, it shows Preet that there are just a lot of people that don’t trust the messenger. I think a big part of the message in this book that what connects Charlottesville, January 6th and lots of what’s going on in this country, arguably even the election, is that the fundamental division in this country is no longer left versus right, but more those who believe in institutions and those who don’t. And if you don’t believe in institutions, then the things that you and I see and perceive and count on as facts, because they’ve been reported, because they’ve been documented, others are skeptical of that and don’t believe necessarily that all that video is representative of what fully occurred at the Capitol. And that all the reporting and all the cases, this is government, this is media, this is higher education, this is even science, there’s a skepticism about the integrity of the messenger.

So the things that you and I take for granted as clearly fact, as unobjectionable because we can see them with our own eyes, a lot of people say that’s only part of the story or that’s not accurate. That’s what we’re suffering from in this country, is this fundamental distrust in an institution. So we’re not dealing with a common set of facts.

I was going to ask you that question about what the divisions are because there are many possible candidates, right? There’s Black and white, there’s rich and poor, there’s college educated and not college educated, there’s urban and rural. And then there’s cultural, which I think is what you’re saying, people who believe in institutions and people who don’t. I guess I don’t fully understand what that means. I mean, the people protesting in Charlottesville ostensibly believed in a different kind of institution or were upset at the institutions that oversee the country insofar as they wanted the Confederate statutes to remain erect. Could you explain a little bit more about, given your experiences, what that means, belief in institutions? It’s also not that you should be engaged in sloganeering, Tim, it’s hard to get your arms around what that means.

Yeah, it is Preet. It is difficult. Again, it means different things to different peoples. So one of the things that’s common between Charlottesville and January 6th was that each of them started with a core impetus. In Charlottesville, it was this community discussion over Civil War statues, but it metastasized to attract a group of people that didn’t really frankly care about the statues, some of them did, but were frustrated by what they perceive as a government that is no longer serving them, their sort of white, male supremacist ideal. It became a forum for anger, anger at the Charlottesville government, but more broadly.

January 6th, similarly, the election and the false narrative that the election was stolen was the impetus, the primary issue. But there were a lot of people there that were angry about COVID restrictions, or what they perceived to be the Biden administration coming in and going to take away their guns and we’re going to promote these Black and brown people and their interests over theirs, some of the same racist ideology that was present in Charlottesville. So that too became a broad forum for anger at the building. I mean, at January 6th, it’s really obvious, I think the anger’s directed at the sort of symbol of our national government.

So when I say lack of faith in institutions, I mean belief that the government no longer serves them, and a lot of that is has gone astray somehow from its roots. But it’s not just government, it is media, it is the wokeness on college campuses, the allegation that everybody there is indoctrinating young people. And it also has recently translated into denial of things like climate science and the efficacy of the COVID vaccine. So that is the undercurrent here, is that there are just a lot of people that are no longer buying into the things on which lots of other people have come to rely for safety, for a safety net and for information.

So here’s a question, Tim. To what degree, to what extent, if any, is that critique correct? It’s not completely wrong. I mean, I think we need to acknowledge that, it’s not, and we should be very careful to just dismiss all of that. Even if you condemn violent acts, even if you condemn the things that people have done, we just can’t dismiss the entire critique of institutions, right?

Totally agree. And there’s a whole chapter in this book about the fact that we can’t wait for government to fix this. I think there’s a temptation for people to say, oh, we’re really divided, we just need to elect x, y or z.

We need more members of Congress to step forward.

No look, representative-

So what do we need? Do we need tech bros, Tim?

We don’t need tech bros, but we need less incumbency protection. I mean, my view, Preet, is that the real problem with our representative government, and this is true both at the federal and the state level, is the rules are drawn to protect incumbency. Whether it’s gerrymandering and districts that are extremely safe, the only way you lose is if you’re outflanked to the extreme, either on the Republican side or the Democratic side, and the incessant flow of special interest money to largely incumbents, protect incumbency. There’s very little incentive to compromise. There’s very little incentive for politicians to actually engage on pressing and complicated issues. That makes people cynical. You’re exactly right, it’s not entirely misplaced.

So I agree with that bit of analysis about politics with respect to Congress and many local elections, but I don’t know that that’s true, at least in the recent past with respect to the presidency. There is a very powerful anti-incumbency tradition recently and force around the globe, we’ve talked about that. Donald Trump forced out basically the incumbent party. Then Donald Trump as the incumbent was forced out by the previously incumbent party, who was himself, Joe Biden, forced out by the prior incumbent, but out of power. So I don’t know that that computes with respect to the presidency. So to the extent that it doesn’t, does that mean we’ve kind of fixed the problem at the presidential level and not the congressional level?

No, I think the fact that you’ve had incumbency displaced goes back to what we were talking about before, which is the cynicism. I think whoever is in charge will be underwhelming and disappointing to most people, and therefore is going to have a difficult time getting re-elected. It’s happening around the world, it’s not just in America, but there’s been a lot of regime change, party control changing around the world. So that is a function I think of people no longer trusting their national government. They don’t trust it at the legislative level because of that entrenched incumbency, that translates at the executive level to throw the bums out every four years.

Have you experienced in the last few days with the launch of your book from any quarters a sort of shrug, and Tim, it’s all nice, but it’s ancient history, who cares? Trump is re-elected. All these things that you nitpick about, and I don’t mean nitpick, but I’m using the voice of critics, get over it, get over yourself, get over your issues. We’re moving on. There’s been an historic mandate granted to Donald Trump. What is the point of your book? Have you experienced that? And if so, what do you think of that?

A little bit. But what I’ve experienced more, and frankly what I find more insidious is just an apathy. So you can have two different reactions to this cynicism about institutions or lack of faith in institutions. One is anger, which we saw play out dramatically at the Capitol, but the other is apathy. And my fear Preet is that a lot of people say, you know what? It just doesn’t matter who I vote for. If I engage, if I talk to other people, if I try to educate myself, they’re all the same and it doesn’t matter. And that gives outsized power to people, smaller groups of people have outsized voice when not everybody participates. So the book talks a lot about the need to run toward the problem and not succumb to that temptation to say, you know what? It just doesn’t matter if I vote or if I engage.

Yeah, it’s just, I mean sort of inherent in the conversation we were just having, and this is a much broader question and one that we face in the country and one on a micro level that we face on the podcast, where people are just fed up and sick of what’s happening on both sides. How do you frame issues in a way that doesn’t cause people to sort of turn away and yawn? I mean, this idea, and I think you’re not incorrect so it’s not a criticism, but people understand a race battle. People understand when there’s hatred and hate mongering and Blacks and whites or brown and Black people and white people don’t get along, and that may be overstated in certain contexts, but it’s much harder, as I said already, to get your arms around and come up with a solution for the problem of people not believing in institutions. I mean, what do you do with that? Institution building, it’s not sexy, it’s not grabby. It’s not even particularly interesting to a lot of people. That’s just a lament. It’s not necessarily a question.

No, it’s a wise and informed lament. Again, I don’t think we wait for government to fix itself. I don’t think that happens. That said, I do think the more that our institutions do work, like accountability for example, if the criminal justice system holds people accountable, that restores faith in the criminal justice system. If Congress actually were able to do something about the difficult problem of immigration or gun violence or climate change and achieve something-

That’s a big conditional, Tim.

… Exactly. My point is that’s unlikely and we can’t wait for it. So I think it has to be more organic. It has to be people in their own communities educating themselves, not just living in echo chambers like so many of us do, finding places where there can be shared experience, because I think people have more in common than things that divide them and finding ways to do that, to have shared experience and engage and participate. And again, not resist the temptation to throw up your hands, but to, in your community, in your school, in your church, whatever it is, care and raise your hand. It’s got to start with small steps on a really basic level, not top down, but bottom up.

I’ve been thinking about a word that I use that you use, you’ve used in this interview, that is a good word and it’s the right and appropriate descriptive word that causes an issue of action, and that when we refer to a problem or a danger as insidious. That’s not grabby, because insidious means, I think a little bit, I didn’t look at the dictionary before formulating this question, and maybe I should have, insidious implies that it’s a little bit invisible. It’s not fully understood. It’s long term. It’s like a virus that’s not fully appreciated and detected, as opposed to imminent danger or an imminent harm or a clear and present danger. The kinds of words that you and I have used in talking about terrorist threats in the past. Insidious harm, should we stop calling things insidious, use a better word?

That’s a good question, Preet, because you can’t really say any longer that this division is insidious. I was surprised in November at how broad and deep the president-elect’s victory was, and to me that means how broad and deep this frustration with institutions is. I sort of thought, yeah, it’s some extreme folks, frankly on both sides of the political spectrum that are disillusioned or disenfranchised. It’s broader and it’s deeper than that, and the election results I think demonstrate that. So you’re right, it’s not insidious anymore, it’s sort of palpable and this pendulum swing of throwing out an incumbent every four years is another manifestation of that. So I do think it’s blinking red now and not insidious, all the more reason to go toward it and pay attention to it rather than withdraw.

So going back to Charlottesville and January 6th, as you pointed out correctly, those protests had a particular concrete goal. In Charlottesville, it was about not taking down Confederate statues, right? It’s a very concrete, understandable goal. And on January 6th, it was about not certifying the election. But obviously there’s a lot more going on there, and you write about this in the book. How would you describe and articulate what it is that these groups, whether it was the protesters of January 6th or Unite the Right and their affiliate and parallel organizations, what is it beyond those particular concrete things do they want? Or do they even know? Do they even know?

No. I’m not sure there’s a coherent seven point plan that they were prepared to pursue. In Charlottesville, they were just off Preet. They were just angry at their perception that places like Charlottesville were no longer protecting white supremacy. It was that simple. It was more of a negative than an affirmative vision. Or if there was a vision, it was a return to the halcyon days of where white people controlled the world, the government, and put up whatever statues they wanted and taught whatever they wanted in schools and ran the show. So it was more of a nostalgic look back at what they have lost more than a proactive vision of what they want going forward.

And similarly, I think with the Capitol, it was this misguided belief that this was tyranny, that government was preparing to certify an election that they were told without foundation was stolen. A lot of those people looked at themselves as 1776 Patriots. They were there to preserve liberty in the face of government overreach. No foundation. So it wasn’t so much we want X, it was more we fear Y or what Y is happening.

I want to talk a little bit more about what actually happened on January 6th. We talked earlier about the metamorphosing of people’s views about it being a violent event versus a tourist excursion. Could you remind folks actually what happened that day, in particular what violence occurred and why people were prosecuted and who the most serious offenders were and what they did? Because I think that’s lost a bit.

Yeah. The most serious offenders were convicted of seditious conspiracy, which was the affirmative use of force to overthrow the government or disrupt its lawful function. There were a couple of groups of men, and a couple of women, but primarily men, who planned to breach the perimeter of the Capitol to penetrate the building and to disrupt the joint session to prevent the certification.

Was that spontaneous?

No, that was planned. The Oath Keepers and the Proud Boys had operational plans and numbers of people and weapons and communications gear.

What kinds of weapons?

The Oath Keepers had a stash of actual firearms just outside of the city.

But the reason people can alter history is that those weapons didn’t make their way into the dome of the Capitol, right?

That’s right. They did not. There actually is shockingly little evidence of any gunfire at all at the Capitol. There were weapons recovered, there were people who were carrying, but small percentage. The Proud Boys who actually were sort of the tip of the spear that penetrated the building had clubs and spears and bear spray, things that they knew they could carry legally in DC where they couldn’t carry a firearm. And it was sort of consistent with their plan, their plan was to sort of sneak in to the front and then push through as opposed to starting broad. They literally identified the Peace Circle, a very vulnerable point closest to the Pennsylvania Avenue, the march from the Ellipse, and from there straight up to the west front of the Capitol and broke windows and broke in, knowing that a lot of people would stream in behind them. So not everybody at the Capitol, I don’t want to overstate this, was part of a master plan to break in. There are a handful of people that intended to do that knowing that in a crowd situation with a lot of angry people hyped up because of their belief in election fraud, they would follow. And that’s exactly what happened.

So the most serious were the seditious conspiracists, they were the ones that planned violence that tactically had plans in advance. And then there are a lot of other people that were aware that there was something afoot and they just sort of pursued in behind. And then there are people that just were happenstance trespassers who were there and weren’t aware of anything in advance, but found themselves there and then happily participated. So there are levels of culpability as the charges filed by our former colleagues at Justice reflect.

Yeah. So with respect to specific acts of violence and harm to Capitol Police, I want to make sure that we’re rigorous about this and understanding exactly what happened. And I think the court system has been rigorous, even though people don’t want to believe it, by and large. How many Capitol Police officers were assaulted or injured?

A couple of hundred were assaulted and injured.

And what’s the evidence of that?

Video evidence, first-hand accounts.

And assaulted with what?

Assaulted with fists and shod feet, assaulted with flagpoles, assaulted with pepper spray, assaulted with fire extinguishers, with bike racks that they could pick up and hurtle.

I want to ask this question again. That is documented, much of it is on video, it’s incontrovertible. Where do people get off saying these were nonviolent tourists? I don’t get it.

I think the narrative that I have heard, and I’m repeating it without endorsing it, is yeah, there were a handful of bad actors, but that was a really small and anomalous group. The vast majority of people at the Capitol were there peacefully and patriotically exercising their First Amendment rights, and you can’t paint a broad brush for those couple of people that were bad actors and cover everyone. That’s a false narrative. There were a lot more than a couple of people engaged in violence. There were a lot of people that walked over the broken glass and the blood on the marble steps of the Capitol.

Where’s Nancy?

They’re chanting where’s Nancy and hang Mike Pence. Exactly right.

Do you think they had very benevolent intentions with Nancy?

They would’ve harmed Nancy or Mike Pence had they found her, absolutely no doubt, from talking to some of them myself over the course of our investigation.

I’ll be right back with Tim Heaphy after this.

What about these allegations that have been made, and I approach this question with great delicacy, I asked you about how many Capitol Police officers were harmed, injured or assaulted, and there have been conclusions drawn about a number of Capitol Police officers who died as a result of the assault. Let me just leave it there and ask you generally what your understanding of that is? And I don’t want to cause anyone harm or pain, but there does seem to be some issue about that.

Yeah, the big most prominent name is Brian Sicknick who was a Capitol Police officer who was pepper sprayed, was assaulted, and then died a couple of days later from heart issues resulting, the doctor, the medical examiner found from the trauma imposed at the Capitol.

So it was Officer Sicknick who’s the most well-known name of the victim?

Yes. But there were four others, Preet, that were-

But with respect to Officer Sicknick for a moment, you as an investigator on the January 6th committee, do believe is an accurate and correct and fair statement to say that the events of January 6th caused this officer’s death.

That is exactly what I think the medical professionals have concluded. And I’ve seen Officer Sicknick’s body cam footage and I talked to Caroline Edwards, who was standing right next to him on the west front of the Capitol, and heard the stories of the violence that was perpetrated against him, against all of them. And it’s horrific and there are long time ramifications for that. It exacerbated a pre-existing condition for him, but it absolutely is a direct line to his death. And then the other thing to point out here is that there are four officers who committed suicide after January 6th.

So talk about that, and that’s again, delicate, but what is the evidence that one could fairly say as an adjudicating matter in court, to use that standard, which is a high standard, that the events of January 6th and the violence perpetrated by various people caused those deaths?

Yeah. As a matter of law, as a matter of prosecution, I don’t know that it would to meet to beyond a reasonable doubt standard. But in the words and writings and confidences of these officers, the events of January 6th left an indelible scar, emotional scar. We see this with soldiers returning from combat, Preet, all the time, that the wounds, psychological wounds of that kind of intense violence participation, having it perpetrated against you is. I’m not a psychiatrist, but I see the direct line between maybe again much like Officer Sicknick, maybe there’s some pre-existing issues, but it pushed it over the edge in a way, a really tragic way for those four officers, all of whom have been recognized as their deaths being connected to their service.

Recognized by whom?

By the pension and the Capitol Police, the law enforcement hierarchy for which they worked.

How do folks on the right, Trump supporters and others, square their generalized statement of support for law enforcement with their complete abandonment of the Capitol Police on January 6th?

Yeah, I’m not the right person to ask that question. I don’t know. It’s directly inconsistent. Again, I think what they’ll say is, well sure, some people that hit cops are bad people, but that happens a lot in this country and January 6th wasn’t that unusual for that respect. And those people ought to be punished. I think you could see the president draw some lines in terms of who he pardons. My hope is that some of those most extreme, the seditious conspiracists, those who are convicted of perpetrating acts of violence against officers, are not pardoned, whereas the misdemeanants are. I don’t know whether he will draw any line or just give a blanket pardon to all people who are convicted of offenses surrounding the attack on the Capitol.

Is there a campaign among people who have been involved in the case, either congressionally or at DOJ, to try to persuade Trump and his advisors not to issue those pardons?

All I’ve heard is the other side, is that January 6th, defendants are literally writing to the president-elect and are speaking through court proceedings asking explicitly for a pardon. And there’s some basis for that because of the rhetoric that the president used during the campaign and what he has said since that these patriots ought to be pardoned. I’m not really aware other than the Capitol Police Chief for instance testified I believe on Friday that it would be a real threat to law enforcement if people that assaulted law enforcement were pardoned, that he would see that as encouraging similar bad behaviors. So there are some voices cashing against it, but most of the energy I’m hearing about is on the other side.

Is there any way in which, I just want to be rigorous about the historical record, where people have overstated their claims about what happened on January 6th? Are there any other myths that have been perpetuated that you want to clarify or rebut?

I mean, there are all kinds of myths that have been rebutted about who started it and the role of the FBI for example.

Right. Yeah, talk about the role of the FBI, because that is something that is much harder to pinpoint and a lot of people believe what they want to believe, so talk about that.

Well, yes, and the FBI makes it difficult, frankly, to rebut this, because of their historical reticence from providing information to Congress or anyone about-

Let’s get Chris Ray. Let’s get Chris Ray on the podcast.

… their use of confidential human sources. Yeah, but he would say, Preet, as you know, we don’t talk about confidential human sources. So they don’t do themselves any favors when it comes to throwing open the curtain as to their assets who were present. There were people in the crowd who were providing information to the FBI. They wouldn’t be doing their job if they weren’t paying close attention to groups like the Proud Boys and the Oath Keepers who presented domestic terror threats. That said, there’s absolutely no evidence that any of them either directed by the FBI or even on their own, did anything to stoke violence or to create the conditions for an insurrection.

There was a narrative, for example, of this guy, Ray Epps, who was this older white man who is seen kind of at the front, at the Peace Circle, where the Proud Boys first reach the police lines, that kicks open the door for everyone, where he’s sort of acting a little bit like a peacemaker. And there was this false narrative that he was an FBI source. He told us that he was not. We finally got the FBI to admit that he was not an FBI source, was not an employee, was not a confidential human source.

But nonetheless, going back to what you said before, Preet, there’s been this incessant, it must have been an FBI-led insurrection, because they’re anti-Trump somehow. It doesn’t take facts to spin out those kinds of crazy theories.

What about this issue of retribution? Now I’m going to ask you to put on your former U.S. Attorney hat.

Yeah.

So Trump has been saying, and his allies certainly have been saying very loudly and vociferously that people who are involved in the January 6th investigation, and you are one of them, I point out and I want to ask you about your personal feelings and concerns about that also. But the primary target has been Liz Cheney because she was Republican I guess, so she’s the greater turncoat than some of the people like Benny Thompson and others. Do you have a view on a scale of one to 10 like how nuts that is? And do you have any personal concern that you yourself as the chief non-elected staffer on the January 6th committee are in for a tax audit or worse?

Yeah. 10, to answer your first question about how nuts it is. It’s crazy that members of Congress doing their job or special counsel who’s appointed by the Attorney General to pursue facts could be investigated themselves. There’s nothing that Ms. Cheney or Jack Smith said or did that wasn’t reciting information that we had received, that they had received.

Well, but the allegation is that there was evidence destroyed.

Yeah.

Can you address that again?

There’s just no factual basis whatsoever.

So where does that come from? Because sometimes it’s the case in fairness, or not fairness, that Trump and folks, they take a nub of something that’s BS, but it has some scintilla of accuracy and then they inflate it and blow it up into some complete and utter bullshit crazy story. Is that this or is this completely out of hold?

No, that’s a good question, Preet. That is this. The two scintillas that are the basis of that, one are the videotapes of the interviews. The House rules are clear that the official record of a deposition or a transcribed interview is the transcript. We taped those transcribed interviews or depositions in part because we wanted to present portions of them to the public in our hearings. But those aren’t the official records, the official records are the transcripts. And I do not believe that the video recordings were sent to the archives or were preserved, because again, the official records were the transcript, which contained every single question asked and every answer given.

The other thing that was not archived was sensitive national security information. So the committee was given access to certain people and certain documents regarding the Secret Service and the internal staff of the White House, the disclosure of which would make it easier for people to threaten future presidents. And the Biden administration said to us, well, we’ll give you access to this person who was a valet for the president who worked in the White House, but only on the condition that you not identify him and that you not make public the transcription of the interview, because if people understand the inner workings of the White House and who carries what and where they stand, it could potentially create a threat.

I believe that the House Republican Committee administration that has been behind a lot of this has actually gotten access to that national security related information. So while it wasn’t sent to the archives, it has been provided to them. The videotapes, I’m not sure frankly what happened to them, but to be clear, every word of every interview is transcribed and that has been made available. So those are the scintillas, Preet, but that is very, very different from some intentional effort to destroy evidence or prevent a portion of the story from being made public.

I got asked a question by a listener, and you would know this better given your service on the committee, doesn’t the Speech or Debate Clause pretty much do away with any possibility of prosecution?

Absolutely. Yes, it does. I mean it is clear that these members were acting-

Just to be clear, the Speech or Debate Clause, that’s in the Constitution or not in the Constitution?

It’s in the Constitution.

In the Constitution?

In the Constitution. And it says, members of Congress cannot be criminally prosecuted for things that they do, much like the Supreme Court has said recently about the former president, for things they do in their official capacity. And everything that the select committee did was pursuant to their official capacity.

And do you think Cash Patel has read that section of the Constitution?

Not since law school. He might’ve been absent that day. I’m not sure.

Are you concerned about Cash Patel as FBI director for you personally?

I mean, no. Again, for me personally, just to answer that question, there’s no question that there could be inquiries, whether it’s Congressional or whether it’s the FBI or some criminal justice process that could be inconvenient or expensive and time-consuming. But I’m not ultimately worried about real exposure because again, I still think in this country, regardless of who’s president, the rule of law will matter, and for there to be some lasting consequences have to be facts that give rise to culpability, and those don’t exist here for anyone.

Cash Patel has been appointed to dismantle the organization that he’s been assigned to lead. It’s explicit. Everything that he’s written and said is that the sort of lawfare or weaponization of the FBI is what he’s there to fix. And I do worry about that. I have immense respect for the men and women of the Bureau. Their leadership for years and years has been exclusively Republican, but that doesn’t matter. They do their job.

People forget that.

People forget that.

Under Obama and Biden.

Jim Comey, Bob Mueller, Chris Wray, all of whom have been Republicans have led that agency. Exactly. And politics in my experience has not infected the core decision making of what they choose to pursue, and that’s the way it should stay.

Yeah, but that may be about to change. I want to go back to Charlottesville for a moment, ask you a couple more questions about that. You write in the book about police bias and how it is the case that the reaction of police when there were white protesters was less than perfect. Could you explain what you meant by that and why that would be?

It’s one of the commonalities between Charlottesville and January 6th, which is the core of law enforcement, whether it’s an officer deciding to make a traffic stop or an agency evaluating intelligence is the assessment of danger. That’s sort of the core skill, and they keep getting-

Not insidious danger, but imminent danger.

Imminent. Exactly right. They’re making an assessment based on intelligence as to how much they need to prepare to repel violence. And in Charlottesville and in January 6th, there was ample intelligence of people coming to those events determined to commit acts of violence. Nonetheless, there were bike racks and officers in short sleeve shirts who were there sort of looking at this as a free speech event. The guy who wrote the operations plan for the Charlottesville protest events, the Charlottesville police captain, said to me, “We have big crowds here all the time, Tim. We got Dave Matthews concerts and we had the Dalai Lama spoke, and we are used to handling large crowds.” And I said to him-

They compare it to the Dalai Lama?

They did, believe it or not.

Dave Matthews, I get a little, but the Dalai Lama less.

People aren’t coming to a DMV show with clubs and spears chanting things to provoke a violent response. This was fundamentally different. But there was this misperception somehow that it was a free speech event, and I think that definitely has something to do, Preet, with the race of the people protesting. Because you can see a contrast when it’s the summer of 2020 and the George Floyd protests, much, much more heavy-handed militarized response, and that may have been appropriate based on the intelligence. When it’s angry white guys, middle-aged white guys, there’s this lack of urgency about the threat of danger. That was true in Charlottesville, that was true at the Capitol, and we have to change that. The first step toward fixing anything is acknowledgement that it’s a problem. I think largely it’s implicit. I didn’t find a lot of officers that were sympathetic to the rioters in Charlottesville or to the Insurrectionists at the Capitol. Nonetheless, how they assess danger taps into some stuff that’s biased and that they ought to be really talking about.

I want to ask you another question about Charlottesville, and that is a remark has been indelibly associated with Donald Trump that he no doubt made, and anti-Trump people have used that remark like a cudgel for years, people in elected office, people who speak on large platforms, and that’s not to say that Donald Trump doesn’t have a lot of problems and it does not have a race problem and all those other things, but he said about Charlottesville, as quoted by his adversaries and critics, “There are good people on both sides. And what he also said in fairness was, “I’m not talking about the neo-Nazis and the white nationalists because they should be condemned totally, but you had many people in that group other than neo-Nazis and white nationalists, and the press has treated them absolutely unfairly.” He also said, “I’m sure in that group there were some bad ones. The following day it looked like they had some rough bad people, neo-Nazis, white nationalists, whatever you want to call them”. And suggested in his comments that there were some people who are not bad, who had a good faith view about the statues, which was their agenda.

Has the attribution of that statement good people on both sides to Donald Trump been unfair?

No, I don’t think it’s been unfair at all, because first of all, it’s factually inaccurate.

But in the larger context, is it unfair? Look, I had Sam Harris on who’s a pretty smart guy and a relentless Trump critic who has written about and talked about how on that narrow point, critics of Donald Trump, other critics of Donald Trump lose the high ground because they don’t give the full context.

Yeah, and the full context matters. And there’s no question that in Charlottesville, there was a spectrum of people and any comment that paints them all with a monolithic brush is unwise. It’s very similar, Preet, to this narrative that we’re hearing about January 6th, which is it was a handful of bad actors, but mostly peaceful and patriotic. To the extent there were people at Charlottesville-

So it’s a matter of proportion?

Matter of proportion. Yeah, exactly.

And so Trump can be blamed because he was equalizing the two sides as opposed to being given some benefit of the doubt because he had a universal condemnation of neo-Nazis?

Yeah, I’m not sure if it’s intentional or if it’s ill-informed, but it’s just not accurate to say that in the crowd in Charlottesville, there was anywhere close to an equal number of people there carrying about the statues.

I don’t think he said there were an equal number, but you’re saying that was implicit?

Yeah. He’s saying, fine people on both sides, I’m not supporting the neo-Nazis. The vast majority of people there were neo-Nazis. So to say, well, the handful of people that were there because they cared about the statues, it’s not reflecting the accuracy of what happened, which was a really angry mob of racists who descended on our community. Just like January 6th, yes, there were some people there-

Were there any non-neo-Nazis at Charlottesville who were good faith, good citizen protesters?

There were a handful of people that, again, impossible to take an accounting of everyone there-

We didn’t do a census on the spot.

We did not do a census. Yeah, there were some people that came to the rally because they were supporters of keeping the statues, very, very small number of them that our investigation could identify. I wouldn’t want to put a number on it, but it was a very small minority, compared to the people that came from all over the place making those offensive chants, looking to provoke violence and stoke a racial conflict. The percentage of those good people that were good citizens caring about statues, very, very small in the context of the entire event. Just like happy tourists at the Capitol is a very, very small percentage of the overall what happened there. It misrepresents the events to say, yeah, there’s a lot of people of both that were mixed up in those crowds.

Is it generally your view, do you agree that critics of Trump should be careful in how they criticize and they should apply a level of rigor that the Trump supporters do not apply?

Yes, a hundred percent. Look, you and I are former prosecutors and you absolutely have to apply rigor before you’re going to accuse anyone, particularly the President of the United States of wrongdoing. We tried to apply that standard in the work that we did with the select committee. Every word of that report was fact-checked and was verified, and we had to stand behind as a matter of legacy and history. So absolutely, I agree that we have to apply rigor that some of his supporters do not apply.

It’s funny, I’ve been thinking about that, this idea of when they go low, we go high, and there are a lot of Democrats or Trump critics, not just Democrats, who say things like, I’m sick and tired of Trump opponents following rules and norms and principles that the Trump people have abandoned, and that has a surface appeal. And the context in which it is most understandable to me, why you can’t be that guy is our prior jobs, because you go into court and sometimes the defense was full of shit. And that includes private defense lawyers and includes, sorry to step on a sacred cow, federal public defenders on occasion. That did not excuse us, and it was not about moral high ground necessarily or about some aesthetic, it did not excuse us to decide, well, we’re going to fight fire with fire and they misrepresent the facts of the court or the jury. We’re going to do that, right?

So if you care about doing things the right way and ultimately prevailing, in my example in a court case, or ultimately prevailing in the record of history, you can’t descend to the same crap that the other side does. Do you agree with that?

A hundred percent. Well said, Preet. And that gets us full circle all the way back to the beginning of this conversation, which is faith in institutions. It requires that kind of attitude. We’re going to do the right thing regardless of what the other side does that will hopefully keep or restore faith in institutions. It requires adherence to those high standards in order for the system to work, in order for people to again, trust it. We collectively, we the people that work at institutions have to apply those standards regardless of the crazy stuff that comes from across the courtroom or across the aisle in Congress. If we lose that, I strongly disagree with this notion from Democrats that we have to play like they play and we have to go low when they go low, I disagree with that completely. Agree with your premise that we have to stay above that.

You have two chapters, one of which is somewhat pessimistic in the title, and the other one of which is optimistic. I’m going to mention them both to you and maybe you can describe what you mean. “There is no cavalry coming”, Tim, you write, which is upsetting, we should get some horses and save things. And then the other which you take from a political figure, “It’s harder to hate up close”. square those things for us.

Yeah. There’s no cavalry coming as something that our mutual friend Eric Holder said, which is when Donald Trump won the nomination, we can’t wait for our politics to save us. We, the people have to stand up and protect democracy. I strongly believe that the solution here is organic. It’s not coming down from some elected official or elected officials but us.

And then you can’t hate up close, again, I think part of the problem is that the cynicism results from these bubbles or these silos in which we live. And I think it was Michelle Obama who said, you can’t hate up close, and she went around the country and met a lot of people that were initially skeptical about her and her husband, but when they actually talked, when they actually had personal interaction, she sensed a change. And I think that’s right, I think if we approach the way we go about our lives, Preet, with that open heart or with that accessibility, with that open mind, then I think we’re going to be fine. I do think we should get more up close, find ways to bring Americans up close, that’s part of the solution to preserving democracy.

I want to end with my favorite quote from your book, which addresses an issue that we’ve been thinking about, and also thinking about in the podcast. I’ve said many times at the end of last year, our podcast is called Stay Tuned. It’s about being in the mix, it’s about being in the arena. And there are a lot of people who understandably are tuning out, which is the exact opposite of our premise. And speaking of insidious threats and harms that we’ve been talking about, you write, and this is way upfront in the introduction, “Withdrawal is as dangerous as anger. A disengaged citizenry is a more insidious threat to democracy and ultimately more destructive than a large crowd of angry rioters. We need to run toward not away from the problems facing this country.”

I couldn’t agree more. Final elaboration on that, and then I bid you farewell.

Yeah. Preet, the answer is all of us caring enough to continue to stay in the fight, and that fight could mean lots of different things to lots of different people. I think if everybody in America voted, if everybody in America educated himself or herself, we’d be fine. Then unfortunately doesn’t happen. 66% of registered voters voted in this election. That doesn’t even touch all the people that could be registered, but choose not to. That’s a problem. It’s apathy that I do believe as I write in the book, is a bigger threat than angry people storming the Capitol or fighting in Charlottesville. Everybody has to stay engaged. And I appreciate the work that you’re doing at the podcast to encourage that.

Tim, thank you. Congratulations on the book, Harbingers: What January 6th and Charlottesville Reveal About Rising Threats to American Democracy. Thanks for your work, thanks for your service. Be well, sir.

Thanks for having me, Preet. Good to see you.

Stay tuned. There’s more coming up after this.

Now let’s get to your questions. This question comes in a tweet from Carol who asks, “Will we see the Jack Smith report?” Thanks for the question, Carol. That’s the question that I’ve gotten probably more often than any other question in the last few days. You’re of course referring to the report that Special Counsel Jack Smith has already written, we understand that it’s written, about his work overseeing the Trump investigations. By law under the special counsel guidelines, Jack Smith is supposed to write, has to write a report about his work before he leaves office. Now, whether or not that report will ever be released is an open question for various reasons. Among those reasons, Trump and his allies are opposing its release.

Yesterday, as you may have heard in the CAFE Insider Podcast, my co-host Joyce Vance and I debated whether or not it would ultimately get released. If you haven’t listened, you should head over to the Insider and sign up at cafe.com/insider. But here’s an update, and by the way, I should note that I’m recording this about lunchtime on Wednesday, January 8th, so more things could happen between the time I’m recording and the time that your ears hear this.

But you’ll recall that federal Judge Aileen Cannon blocked Smith from releasing the report, at least until the 11th Circuit Court of Appeals weighs in on the motion made by Trump’s co-defendants about the report. But now there’s a new DOJ court filing in the circuit court that revealed first Smith has, as I said, completed his report and delivered it to Attorney General Merrick Garland. And second, Garland for now intends to release just one of the two Smith reports. The one detailing the election interference case, that’s the one before Judge Chutkan in DC, and not the Mar-a-Lago documents one that Judge Cannon oversaw. So remember, there were two cases, two investigations. There apparently are now two volumes of a report.

So whatever happens, the clock is ticking. Trump will be back in the White House in less than two weeks, he will have control of the Justice Department. So Garland Smith and the 11th Circuit, all of them will need to move quickly or we won’t see volume one.

This question comes in an email from Hewitt. “Hey Preet, Hewitt here from Brooklyn. I’ve noticed your language get saltier over the last year or so. Maybe it’s the political moment, or maybe you’re just evolving as a podcaster. I have two teen boys. I was careful with my language when they were little, but now that they’re older, I’ve started to cut loose more often. Kind of felt like finally inhaling after holding my breath for a decade. So dad to dad, how do you feel about this? Are we coarsening the atmosphere or expressing ourselves more authentically?”

Well, that’s, Hewitt, great fucking question, and one that I haven’t really thought about deeply, but let me explain a couple of things. So when I began the podcast over seven years ago, it was a new thing for me. It was a new medium, I didn’t want to turn people off or put them off by interjecting unnecessarily, or even necessarily, curse words or bad language. I also think a little bit was low to put the E for explicit warning on podcasts, which I think you’re supposed to do if you have that kind of language. And so I was my authentic self, and I think I have been in every episode since the first one, well over seven years ago, with the exception that with close friends and people who know me well, I curse like a sailor. So that’s my confession.

But I don’t always do that. I don’t curse in front of my parents. I never have. And like you, when my children were younger, now they’re 23, 21, and 19, but when they were younger, I didn’t curse. I didn’t think it was setting a good example. It’s not a good model. But in the years since they themselves are faced with and are confronted by and watch movies that contain that kind of language and songs that contain that kind of language, and if it’s natural to me, I’m a little less censorious of myself. And I think it’s okay. I don’t curse for shock value, I think I sometimes curse for emphasis.

And I guess recently as I’ve become even more and more comfortable with the podcast, people I think know me and know what I mean when I say what I say, I’m a little less worried about offending someone’s sensibilities if I drop a cuss word. In fact, as you may recall, I dropped an F-bomb at the top of this episode.

On this week’s Insider bonus, I answer a listener’s question about two death row prisoners who are rejecting President Biden’s commutations. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

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 hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-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 deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.