• Transcript
  • Show Notes

In this episode of CAFE Insider, “Insurrection Aftermath,” Preet and Anne discuss the aftermath of the insurrection at the Capitol (including the likelihood of a second impeachment of President Trump), the charges being brought against rioters, and the law enforcement failure that permitted the mob to breach the Capitol building.

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

CAPITOL INSURRECTION

“Capitol Coup,” CAFE Insider, 1/6/21

“Diagnosing Trump (with George Conway),” Stay Tuned with Preet, 10/10/19

“The Attack on the Capitol Was Even Worse Than It Looked,” NYT, 1/11/21

“These Are the 5 People Who Died in the Capitol Riot,” NYT, 1/11/21

“Capitol Police officer who was on duty during the riot has died by suicide, his family says,” WaPo, 1/11/21

“Inside the remarkable rift between Donald Trump and Mike Pence,” WaPo, 1/11/21

“Law enforcement absent from cameras as questions about attack mount,” CNN, 1/11/21

“Yes, It Was a Coup Attempt. Here’s Why.” Fiona Hill op-ed, Politico, 1/11/21

VIDEO: Nancy Pelosi 60 Minutes interview, 1/10/21

REMOVING TRUMP FROM OFFICE

Article I, Section 2, Clause 5 of the U.S. Constitution

Article I, Section 3, Clause 6 of the U.S. Constitution

Article I, Section 3, Clause 7 of the U.S. Constitution

Article II, Section 4 of the U.S. Constitution

14th Amendment to the U.S. Constitution

25th Amendment to the U.S. Constitution

D.C. §22–1322. Rioting or inciting to riot.

Brandenburg v. Ohio, U.S. Supreme Court, opinion, 1969

“Incitement of Insurrection,” Article of Impeachment, 1/11/21

“Chad Wolf resigns as homeland security secretary,” WaPo, 1/11/21

“The Trump Administration Officials Who Resigned Over the Violence in the Capitol,” NYT, 1/11/21

“Schumer Exploring Emergency Session for Senate Impeachment Trial,” Bloomberg, 1/11/21

“Pence has not ruled out 25th Amendment, source says,” CNN, 1/9/21

“White House Forced Georgia U.S. Attorney to Resign,” WSJ, 1/9/21

“The Urgency of a Second Trump Impeachment,” Lawfare, 1/8/21

“DeVos resigned after believing 25th Amendment was off the table,” Politico, 1/8/21

“The Constitution’s Option for Impeachment After a President Leaves Office,” Just Security, 1/8/21

“McConnell memo outlines how Senate would conduct second trial for Trump if House impeaches,” WaPo, 1/8/21

“Mitch McConnell reportedly never wants to speak to Trump again after the Capitol riot,” Business Insider, 1/8/21

“Can Trump be charged with inciting a riot? Legal bar is high,” WaPo, 1/8/21

“The Incapacitation of a President and the Twenty-Fifth Amendment: A Reader’s Guide,” Just Security, 1/6/21

“An impeached and convicted Trump could still run in 2020. Here’s how to stop him.” WaPo, 11/6/19

“War Secretary’s Impeachment Trial,” U.S. Senate, 1876

VIDEO: Governor Schwarzenegger’s Message Following this Week’s Attack on the Capitol, 1/10/21

JOSH HAWLEY & TED CRUZ 

“Hawley and Cruz face mounting calls to resign over push to overturn election,” Vox, 1/10/21

“It’s Time for Congress to Expel Trump’s Enablers In Its Ranks,” Daily Beast, 1/8/21

Sen. Hawley tweet, 1/7/21

CHARGES FOR CAPITOL RIOTERS

“Several Capitol police officers suspended, more than a dozen under investigation over actions related to rally, riot,” WaPo, 1/11/21

“Pipe bombs found at DNC and RNC buildings were viable,” CBS, 1/10/21

“There’s No Single Domestic Terrorism Statute. But Those Involved in the Riot at the Capitol May Still Be Prosecuted Under These Laws,” TIME, 1/9/21

“Black Police Officers Describe The Racist Attacks They Faced As They Protected The Capitol,” BuzzFeed News, 1/9/21

“Figures Show Stark Difference Between Arrests At D.C. Black Lives Matter Protest And Arrests At Capitol Hill,” Forbes, 1/8/21

“Race double standard clear in rioters’ Capitol insurrection,” AP, 1/7/21

“Compiling the Criminal Charges Following the Capitol Riot,” Lawfare, 1/7/21

TRUMP TWITTER BAN

1st Amendment to the U.S. Constitution

“Merkel among EU leaders questioning Twitter’s Trump ban,” Politico, 1/12/21

“Can Twitter Legally Bar Trump? The First Amendment Says Yes,” NYT, 1/9/21

“Permanent suspension of @realDonaldTrump,” Twitter, 1/8/21

Who’s to Blame for the Capitol Insurrection?

As America reckons with the aftermath of the insurrection at the Capitol, how should lawmakers hold President Trump accountable for his role in inciting the violence?

Democrats in the House are moving forward with impeaching President Trump for his involvement in inciting the riots at the Capitol last week. Preet and Anne break down the single article of impeachment, “Incitement of Insurrection,” and the various other methods to remove a president from office.

Meanwhile, investigations are ongoing to identify individuals who participated in the insurrection. Thus far, prosecutors have charged rioters with crimes including entering a restricted area, assaulting a police officer, and firearm possession.

And, there are many questions surrounding the massive law enforcement failure that permitted the mob to breach the Capitol building. Preet and Anne discuss the warning signs officials ignored, and the disparate law enforcement response between last week’s Capitol riots and last summer’s Black Lives Matter protests.

Preet Bharara:

From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Hey Anne, it’s been quite a week.

Anne Milgram:

It feels a lot longer Preet.

Preet Bharara:

The people I keep seeing on social media talk about the 13th month of 2020. And that’s kind of what it feels like.

Anne Milgram:

It does. It feels also like years have passed since last Wednesday.

Preet Bharara:

Well, we recorded a special episode on the day of what I think is appropriately called an insurrection. And since that time we were reacting in the moment that evening, lots of other things have happened. We’ve learned about deaths, Capitol police officer Brian Sicknick died of wounds, apparently he suffered at the hands of the riders. Another Capitol police officer apparently has died by suicide. I don’t remember at the time, if we knew about the three other folks who passed away and one woman was shot trying to enter the house floor. So there’s been a lot of death. We’ve also now seen videos that are incredibly disturbing and how close the riders got to speaker Pelosi’s office in fact, got into her office, but she was in a secure location. And the thing that I can’t get over and you and I haven’t spoken since Wednesday directly is all these people chanting, hang Mike Pence.

Anne Milgram:

Yes.

Preet Bharara:

Hang the vice-president United States. Why? In part, because he was demonized by Donald Trump for not doing the thing that is completely unlawful and unconstitutional to do, which is to hand the presidency and the election over to the person who lost. And the fact that Donald Trump, we’re recording this on Tuesday morning, January 12th, Donald Trump didn’t even bother to call Mike Pence until yesterday, tells you everything you need to know if you didn’t already know it about Donald Trump.

Anne Milgram:

Yeah. I think we recorded very quickly and what has become really clear I think to me, over almost the past week is first the extent of the danger that existed. And just how incredibly close the rioters these individuals, the extremists, we’ll talk about domestic terrorism in a minute that this mob came to this situation being far worse to kidnapping elected officials, to potentially murdering elected officials. You see the pictures and we didn’t see these pictures on Wednesday, I didn’t see them until Thursday. But individuals walking around with flex cuffs, which are used to basically handcuff people, wearing militia gear, that the number of weapons, the assault weapons, the Molotov cocktails that have since been found.

Anne Milgram:

The extent of danger and violence and weapons that were present on Wednesday, I think, and just how close this situation came to being even more of a catastrophe and a disaster than it already is. So the depth of this, the danger of this, also I understood that there had been online media posts, but having had the past week to sort of review them and reflect them and to now see that there were hashtags storm the Capitol, that there were repeated sort of conversations about finding Pence, stopping the vote, killing the house speaker, Nancy Pelosi. And a lot of this was sort of, while the president himself was not directly involved in the online chatter, there was a distinct effort by the president and by his followers and his team to brand the stop the steel campaign, to basically be out there, undercutting the results of a fair and free election and to basically be encouraging their supporters to overturn and to stop Congress from certifying the vote.

Anne Milgram:

And so I think the severity and seriousness of it, I felt it, I think we both felt it Wednesday night, but it’s so important that will be on the same page with this conversation about, Fiona Hill has now called it an attempted self-coup by the president of the United States. And I didn’t grasp all of it in those sort of moments as it was unfolding.

Preet Bharara:

I don’t think we still are.

Anne Milgram:

I agree.

Preet Bharara:

I think the more we’ll uncover… And the other crazy things that you have now seen, that we have now seen is that there appear to have been Capitol police officers who were complicit. There were some who were heroes and we’ve seen those videos who averted what potentially could have been… I don’t think this is an overstatement given what we saw and given how the timing worked out. I think it could have been a massacre.

Anne Milgram:

I agree.

Preet Bharara:

And there were involved I think some people like to think, “Well, it was a bunch of rubes who descended on the Capitol, who didn’t know anything.” There were people who looked like they were law enforcement officers from around the country who were involved, elected officials. There’s an elected representative from West Virginia who proudly announced himself as having entered the Capitol, he has since resigned. So there are a lot of people who knew better and I’ve taken oaths to uphold the constitution and to uphold what we used to know as the rule of law and law and order who were part of this uprising against democracy in this country. So I can’t tell you the number of people who have said to me some version of I’m shook and there are other folks who say, “Well, this is not surprising at all.” I think it’s a combination of two things.

Anne Milgram:

I think it’s a combination of not being surprised by Donald Trump, but I’m shaken by a number of things. One is none of this is possible without the enablers. And those include the U.S. senators and members of the House of Representatives who were objecting to the vote. But it also includes a lot of the make America great folks again, who became militant, who became all about Trump and not about the United States. And look, it almost goes without saying that real patriots support the United States constitution, and they don’t try to overthrow the government. And there was an angry, armed, militant mob that engaged not only in a riot, but in acts of insurrection against the United States government. And they cloak themselves in mega hats and Trump banners.

Anne Milgram:

And the question is, I think there may be people who joined that movement for all different reasons, but I think we have to be very clear in saying that these were not rubes. These were people who went there with an intentional political goal of overturning a free and fair election. And that is insurrection to have a peaceful protest is not, but to forcefully enter the Capitol armed in cavalry with bear spray and not everyone had those things. But there are a lot of folks [crosstalk 00:06:22]-

Preet Bharara:

A lot of them.

Anne Milgram:

And a lot are associated with the three percenters’ right-wing extremist group. There’s a lot of anti-Semitic groups who were part of it with the-

Preet Bharara:

They’re wearing Camp Auschwitz t-shirts.

Anne Milgram:

Yes. And I think we have to be really clear about what this movement has become. And it’s like, I was sort of thinking about this the other night, how to make folks understand that yes, some people may have gone there just thinking the election was fraudulent, I need to be heard. And then all of a sudden they’re storming the Capitol and walking into the Capitol. People need to understand, like you are judged by the company you keep and by the decisions you make in that moment. And so-

Preet Bharara:

Yeah, that’s 100% true.

Anne Milgram:

And we have to all, I think be real about the harm that is done by each and every single one of those individuals who left the Capitol mall and entered the United States Capitol.

Preet Bharara:

Do you know how we know that these were un-American unpatriotic people, the symbol to me, and again, not everyone, but there were people who were taking down the American flag, our flag, and putting up a Trump flag, which shows loyalty to a single person who had lost the election rather than the country and what our flag represents. So we talked about anger. That’s maybe a good segue to talk about. The other side of the coin, there is deep visceral anger on the part of many people not just the populace, not just you and me and other people. We know that people in Congress who were basically at risk of physical harm, potentially losing their lives. And I think it’s lost on Donald Trump and some others how deep seated the anger is among Republicans as well.

Anne Milgram:

This was kind of a hostage situation, right? And it wasn’t because no one was actually taken hostage, but the members of Congress were basically taken to secured rooms. There were people trying to batter down rioters, insurrectionists, trying to batter down those doors. And I think looking at it on the other side of this now, knowing that they weren’t harmed, maybe doesn’t let you fully capture the fact that at the moment in time, that those members of Congress were sitting in those rooms, listening to people screaming outside, breaking glass and trying to break down doors to get in, they had no idea what was going to happen. And so that level of fear-

Preet Bharara:

They didn’t know if they’re armed and to what degree.

Anne Milgram:

Exactly. And that level of trauma, I think we shouldn’t under appreciate how difficult this was for people.

Preet Bharara:

No I think it was a big deal.

Anne Milgram:

Yeah.

Preet Bharara:

No. And the 60 Minutes had a special with Nancy Pelosi and she showed where her staff was scurrying under a table in one of her offices for two hours while people are trying to break the door down. No it’s terrifying and it’d be terrifying for anybody, but it’s the seat of government. I think we should segue to what the consequences should be for Donald Trump and others. And you see this extraordinary move to try to invoke the 25th Amendment or impeach. And the way I think about it before we get into the legality of it is, here you have the head of one branch of government, Donald Trump basically urging and inciting a mob to go do violence to a co-equal branch of government. It’s as simple as that.

Preet Bharara:

And so whether or not there’s a legal statute, criminal statute that has been violated in a case can be brought by the department of justice at some point, whatever, we’ll talk about that. This is basically a crisis of the constitution between branches of government. And that I think as a preliminary matter, that it is more than appropriate for Congress to take action based on its obligations and duties and powers, not just some law enforcement official like the Attorney General of DC, or some other law enforcement outfit. It has to be resolved in some ways as a political matter.

Preet Bharara:

And so one, look, there’s this thing in the constitution we’ve been talking about for three or four years called the 25th Amendment. And I don’t think we have to spend a lot of time on it because I don’t think it’s going to happen, but it’s kind of startling how much the 25th Amendment has gotten into people’s vocabulary and dialogue just in the last six days. And not as a Lark, but as a sort of serious consideration, we’ve had multiple members of the cabinet resign, each time that happens someone says, “Well, can an acting member of the cabinet vote on the removal of the president?” And maybe we should outline quickly what the 25th Amendment provides.

Anne Milgram:

Before we get there, just quickly. I just want to say to your points three things. The first is that, I think we should be really focused on what you talk about with the co-equal branches, the president trying to overrun the will of Congress. It’s almost more dire than that because this is a test of the United States constitution. And this is the president saying that he is above the law that he does not have to adhere to the U.S. constitution. And I think it has to be seen as starkly as that.

Anne Milgram:

The other piece about what you said about criminal prosecution versus politics is that prosecutions need to be brought the individuals who incited this riot, the individuals who engage in interaction in the Capitol, they need to be held accountable. And we talked about that a little bit last week, that is not enough. And criminal prosecutions are not the full answer here. You have a president who is very dangerous to the health safety of Americans and to the future of our democracy and the republic. You also have a situation in which a number of members of Congress basically engaged in conduct that was deeply just undercut the constitution and our democracy. And so the question is, how do you account for… And you also have significant law enforcement failures. So the questions of how you account-

Preet Bharara:

There’s a lot of stuff.

Anne Milgram:

There’s a lot of stuff and criminal prosecutions won’t answer that. And frankly, I think we should talk a little bit down the road about just the lack of any federal briefings on this, the lack of information coming out, a lot of people are hiding and trying to not be held accountable. And so that kind of stuff, you’re not going to get to a criminal prosecution, but you need to get answers.

Preet Bharara:

I think it’s a whole panoply of things; failures, omissions, deliberate misconduct. But because the president leaves office in eight days, the question of whether he leaves office before, or he faces some punishment as an initial matter is something we should unpack a little bit. So the 25th Amendment was amendment passed not that long as you pointed out just a little bit before I was born to put in place a line of succession in section four of the 25th Amendment is a provision in which there is the possibility of removing a president if that president becomes incapacitated in some way.

Preet Bharara:

And I think generally it’s been thought of as a provision that applies when there is some physical or mental handicap, some medical condition. Do you find it interesting that people are talking about the president’s behavior here as something that should trigger the 25th Amendment? I should also point out that there’s only eight days left, the 25th Amendment calls for a majority vote led by the vice president of United States of the cabinet to write a letter to Congress to say, the president is not fit to proceed in his job. Then the president and his allies can send a responsive letter. And then there’s a 21 day period that is discussed in that amendment. So all of that, even if everyone was on board is a difficult thing to accomplish in the next eight days.

Preet Bharara:

But I think it’s been used as sort of a point to make clear how serious this is and the fact that some cabinet officials seem to have been talking about it reportedly just underlines the seriousness of it. But I don’t think it’s a thing that can or will happen.

Anne Milgram:

Well, so first of all, it’s never been invoked. And I think it was initially passed after it was passed in 1967, thinking about the assassination of JFK and other instances in which presidents could be incapacitated. There’s another subsection that’s been used by prior presidents who are undergoing surgery, where there’ll be under anesthesia and so they won’t be able to govern. So it was basically meant to handle situations where the president isn’t fully capacitated and also mentally I would argue able to handle the jobs of the presidency, but we don’t know that, the extent of it hasn’t been tested.

Anne Milgram:

And so I would argue here that it is a very reasonable thing, the president’s behavior, even during the riots, he was still calling members of the United States Senate asking them to oppose certification of the electoral vote. It’s reported that he was essentially excited by watching the riots, that he didn’t understand why others were deeply concerned, who are around him. And so there’s a fair argument that the president is what George Conway who’s been on Stay Tuned before has said that he’s just a narcissist and has severe inability to see anything outside of his own self. And so I think there’s a powerful argument.

Anne Milgram:

I also think a lot of people talked about it for the very simple reason that in that moment, the first question was how do you get the president’s fingers off the nuclear codes and how do you stop this? And how do you stop it from happening next week? Because there have been online and other reports about the same people who were at the Capitol last Wednesday, going back to the United States Capitol and to the State House Capitals on January 17th and going back to Washington DC on the 20th. And so there is this real sense of imminent potential harm. And I think that’s why it came out because the vice-president gets a majority of the cabinet, they vote, you’re right, it goes back and forth, but they could have taken him out of functioning as the president through the end of his term. It’s not going to happen mostly I think because Mike Pence isn’t there.

Preet Bharara:

Even though there were people who were saying, “Hang Mike Pence.” And to those people, Donald Trump said, “I love you.”

Anne Milgram:

Right. And I’m surprised Mike Pence wasn’t there, it’s sounds to me from the public reporting that he flirted with it and that a number of cabinet members called him. It was also reported that and again, we don’t know how accurate this is, but it was a credible news media publication reported that Betsy DeVos resigned after learning that Pence would not invoke the 25th Amendment. So basically feeling that, “Okay, I’ll stay if Pence is going to step up and we’re going to do this, if we’re not, I can’t be a part of this.” And so I do think, look, I think it made sense from the perspective that it doesn’t have to go through Congress, you don’t need a super majority vote to get something done. It would have been quick. It would have accomplished in the short term, getting Trump out of office during this very dangerous, next eight days. And so I see the appeal, but-

Preet Bharara:

But also makes a point. So Nancy Pelosi Speaker of the House is going to take, I think they’ve taken some of these votes already. There have to be votes on whether or not there’s a resolution in favor of invoking the 25th Amendment. And so part of this is a political approach-

Anne Milgram:

To put people on record. Yes.

Preet Bharara:

Yeah. Are you with democracy? Are you against democracy? And the other thing I’ll say is there some people on social media and otherwise asking the question, “Why is it so hard? Why is it so hard?” And I’ll say something, maybe it’s not popular in this particular moment. It should be very, very, very hard to remove a president of the United States.

Anne Milgram:

Who is democratically elected.

Preet Bharara:

Who is democratically elected. You don’t want it in trying to help protect the country in these final days of the Trump presidency. We do need to sometimes pause for a moment and make sure that we’re not doing something as dire as it is, that will so simplify and ease the removal of the president that’s done willy-nilly in the future presidency.

Anne Milgram:

That’s right because some people will do it for good reasons and some people will… That’s right.

Preet Bharara:

You can imagine Democratic president in the future who was unpopular at a moment when Republicans have significant majorities in the House and Senate, should they be able to very simply and easily by voting where there’s no mental incapacity and not this kind of erratic behavior remove a democratically elected president? I think it applies here, but we just need to be careful not to wish for something that’s too simple because that’s a dangerous precedent going forward as well.

Anne Milgram:

Also, there was a benefit to having this conversation last week. And that benefit is that it’s very clear that members of the president’s staff and reportedly also the White House Counsel, a number of individuals were able to convince the president that this was imminent and that it could happen, that he could actually be removed from office under the 25th Amendment. He did make a statement on Thursday, essentially conceding the election for the first time. He’s now stepped back a bit from it-

Preet Bharara:

Reluctantly.

Anne Milgram:

But he did very reluctantly. He did look a little like he was very uncomfortable, like he’d been forced to write the apology note in school, but he did it. And he also talked about, he condemned the individuals who entered the Capitol. Now again, whether that holds or whether he tries to pardon all those individuals I think is still to be seen and we’ll talk about that, but it’s still in the moment at a really critical time, it did have an impact on the president’s conduct.

Preet Bharara:

So the president, to the extent he likes to do unprecedented things and have unprecedented achievements, one is going to be, he will be the first president in the history of United States to be impeached twice. And I’ve looked at the latest draft of an article of impeachment, one article upon which I think the House will vote in the next day. And we should talking about that and we just talking about whether or not there’s some criminal case to be made against Donald Trump. And basically the article is a recitation of why the president has committed the high crime and misdemeanor of incitement to insurrection.

Preet Bharara:

It’s short, the version I have is about four pages long. It’s pretty streamlined. It makes reference to a violation of the president’s constitutional oath, faithfully to execute the office of president of the United States, which the article alleges he breached in part because he insisted over and over and over again on a bed of lies. This provides context that he won the election when he did not. And he fed to folks who are his supporters, this lie that he won the election and did it in the context in which it was foreseeable that there would be ‘lawless action at the Capitol’, such as, ‘if you don’t fight like hell, you’re not going to have a country anymore.’

Preet Bharara:

And it also includes that call that we talked about between the president and the secretary of state in Georgia, where he’s basically threatening and pressuring a local state official to overturn the results of an election by asking for 11,000 some odd votes and all of that together that culminated in the violent insurrection on the sixth. The Democrats who introduced this say, and Nancy Pelosi says is a good foundation for impeachment. Do you agree?

Anne Milgram:

Yes. It’s an astonishing thing that the president of the United States is about to be impeached for inciting violence. And if we turned time back a year ago, I think we would’ve said, we thought he was a danger to our country. I don’t think I would have actually said out loud that I thought he would incite violence. And by the way, we should talk about this as we talk about the law enforcement response to that. I think most people didn’t see this as a possibility and that’s a failure.

Preet Bharara:

Can I say one funny thing?

Anne Milgram:

Please.

Preet Bharara:

It’s not a lot of humor here, but I don’t know if you saw that that viral video put out by Arnold Schwarzenegger where he talks about-

Anne Milgram:

I did. I thought it was really important.

Preet Bharara:

It was excellent and it was very moving. And he talks about his background growing up in Austria and understanding the bad things can happen, there can be enablers.

Speaker 1:

“President Trump sought to overturn the results of an election. He sought a coop and misleading people with lies. My father and our neighbors were misled also with lies. And I know where such lies lead.”

Preet Bharara:

And it was all very moving and very profound. And I saw someone make the point, if you could go back in time to 1985 and say to the world, “There’ll will come a day in the future when Governor Arnold Schwarzenegger calls out president Donald Trump for inciting an armed insurrection against the Capitol, you would be committed.”

Anne Milgram:

Yeah. You would not have seen that coming for sure.

Preet Bharara:

You wouldn’t have seen it coming.

Anne Milgram:

I highly recommend that video though. I thought it was very powerful. So back to the impeachment. So it’s very straightforward. And remember that Congress can impeach, the House Representatives can impeach the president for high crimes or misdemeanors, and that’s basically-

Preet Bharara:

Whatever they say it is.

Anne Milgram:

And also for bribery, but basically this is under the high crimes and misdemeanors and you’re right, it’s whatever they say it is. So Dave talked about that. They also though talk about Section 3 of the 14th Amendment to the constitution, and it’s worth just stopping on this for a second, where they say further Section 3 of the 14th Amendment to the constitution, prohibits any person who has ‘engaged in insurrection or rebellion against’, the United States from ‘holding any office under the United States.’ And so they’re basically alleging the president incited violence and that it’s both a high crime and misdemeanor. And it also violates Section 3 of the 14th Amendment. And that’s something that we haven’t talked about before.

Anne Milgram:

The other thing I think is really interesting about the article of impeachment is that again, it’s pretty streamlined, but it does include the president’s conduct before January and after January 6th and sort of on January 6th, which is important because it’s all those calls that the president made. It’s all the efforts the president made to tell people that it was a fraudulent election, that there was widespread fraud that were not based with any evidence or support, then the rally speech he gave on January 6th. And also of course the call he made on January 2nd to the Georgia secretary of state.

Anne Milgram:

So they’re bringing in more than just the rally speech, which I think is really important because they have to show that this was a pattern and that the president’s goal in all of the work he did was to basically himself steal the election and to not have it lawfully certified.

Preet Bharara:

We should talk about a procedure for a second and just remind folks of how this works. So to impeach means to pass this article of impeachment that just requires a majority vote in the House, which I think will certainly happen. I think as of the time we’re recording this on Tuesday morning, there were at least 211 sponsors. All you need is 218 votes because you have 435 members in the House, and there’s some possibility there will be Republicans, Adam Kinzinger I think is somebody who is suggested he might go along, Dick Cheney’s daughter, Representative Cheney also, I think has left open the possibility of voting in favor of the article of impeachment. So you have, for the first time a bipartisan vote for impeachment.

Preet Bharara:

And once that happens, and this gets complicated, particularly given the timing, it moves to the Senate, and then there are two things that may happen. Once impeachment has passed, nothing happens to the president. He doesn’t get removed. There has to be conviction in the Senate. And those who remember from last time around this time, last year actually, there has to be a two-thirds majority in the Senate to convict. And then once conviction happens, the president is turned out of office. Now, given the timing, I think there’s almost no way possible, not almost no way. There’s no way possible that there’ll be a conviction in the Senate, even if you got all the votes you needed in time to turn the president out of office.

Preet Bharara:

And so then a question that keeps nagging at people and we keep getting asked is, “Well, aren’t you then done once president has gone?” And the answer to that, I think the majority of experts on that question say, “No, you’re not done. You can continue with the trial, even when the president has left office, because there’s something else that’s being sought in the article of impeachment. And that is disqualification from holding office again in the future.” And I think the argument goes legal and constitutional argument goes, there’d be no reason to have that in the constitution, if it were the case that you couldn’t have that vote once the president or some other official was out of office who had been impeached because upon conviction, you’re out of office and then the vote on disqualification would be moot.

Preet Bharara:

And so there have been precedents before, not with respect to the president, but with officers of the United States where they impeach by majority vote, they convict by two thirds majority in the Senate, and then they have a separate disqualification vote, which people believe can just be by a majority vote that says you can’t come back to office again. And that’s, I think the thing that is important here, that people feel the president of the United States, given his lack of patriotism and his offenses against the United States in connection with the armed insurrection should never be able to hold office again. And I think the way it will unfold, there may be some arguments about whether or not the trial can go later.

Preet Bharara:

And then last point, I’ll throw it back to you. There’s a political question here of what Joe Biden wants. He’s going to have to confirm his cabinet. He wants to deal with COVID relief in his first 100 days. And if at the same time we’re having a big trial in the Senate, how is that going to work? I’m just glad I’m not the guy who has to make that decision.

Anne Milgram:

And Biden has said, and I think this is the correct answer that Congress is going to have to decide, that this is a critical… I understand and I’m very sympathetic to all the challenges here. And I think there are a lot of challenges. I also think that this is a moment in history. This is a national crisis. And so as important as I think it is for president elect Biden to get his cabinet in place, I don’t think that should be the deciding factor in whether or not Congress moves forward.

Preet Bharara:

They can do both, you think? We’ll look in to that.

Anne Milgram:

They can do both. I think, look, a lot of people have made this point that we’re going to ask you to walk and chew gum at the same time. And there are times in the world where it’s really important to do so. And this is one of them, a few just points on sort of where we are the first is that the Senate is not coming back in session until January 19th. And so they could unanimously consent to come back earlier. They will not do that.

Preet Bharara:

There’s another way they can come back actually. And Senator Schumer, I think, is thinking about invoking this. There is a power under which the majority leader and the minority leader themselves can bring the Senate back into emergency session, I believe. And there’s the two of them have to show up and they can hammer something out, but McConnell would have to agree to that and I don’t think he will.

Anne Milgram:

I don’t think he will either. So there are some opportunities for it to go earlier, but just so folks understand that the likelihood is that the Senate will not get the message from the House that it has appointed impeachment managers and has impeached the president. And the Senate isn’t a position to receive that until January 19th, which really doesn’t get the process going until January 20th or 21st. And of course at that point, Joe Biden is president. We believe that Senator Schumer will be the majority leader of the Democrats who will have taken the Senate at that moment in time. And so you really are talking about this, isn’t going to move right away.

Anne Milgram:

There’s also precedent for impeaching a federal official after they leave office, not the president of the United States. It hasn’t been done with the president, but it was done with the war secretary in the administration of president Ulysses Grant. It was an individual William Belknap who basically was… he resigned as he was about to be impeached for political corruption, basically taking money over $20,000, which back then in 1876 was a lot of money. And he resigned just minutes before the vote on impeachment was held. He was impeached. He then was tried basically a month later, a majority voted against Belknap. But again, remember that it takes two thirds to actually have somebody removed after conviction for impeachment. And so he was not convicted, he was not removed. And but there is precedent. And I think it’s fairly strong that president Trump can be tried after he leaves office.

Preet Bharara:

Yeah. And I think common sense too. Because if it could be the case that the moment you’re worried about impeachment or you are impeached, or even you’re convicted, you run for the hills, it would make moot this language in the constitution that says you can disqualify a person from holding office in the future because you can’t hold the disqualification vote until you’ve done those other two steps in the process either.

Preet Bharara:

So the other reason we know that even if they could start before the 19th and it’s not going to get done in the Senate, is it takes time to have a proceeding. And last time around, there was an interesting debate about witnesses and what kind of witnesses you would have. I haven’t fully wrapped my head around what kind of trial this would be if they had the luxury of sometime, who are the witnesses to call? Do you do it in a lengthy way? Do you for context, bring in all the president’s prior acts? Do you try to have people around him testify? Because some things that are relevant to all this, obviously are statements the president made, his state of mind. The fact that I find this to be a powerful piece of evidence against the president, if it’s confirmed after the reporting.

Preet Bharara:

So he says these things, he says, “You got to fight.” He says, “Go to the Capitol.” He bases all this on the lie that he won the election, which he did not. And then according to news reports, when he’s on TV, watching the violence happening, watching people’s storm the Capitol rather than be horrified rather than say, “Oh my gosh, I never intended this.” Rather than say, “This is a terrible thing. I need to call it off.” He appears to be delighted and bullied by this because these are his people fighting for him. And as you pointed out earlier, basically he had to be pushed to put out some anodyne statement about how it’s time to go home. The fact that he was somewhat joyed and joyous to see this violence taking place tells you something about his state of mind when he was egging them on in the first place. And so I don’t know who the witnesses are, who would get that in?

Anne Milgram:

Well, let’s go back also to the Ukrainian impeachment, because I think that there’s a model that we’ve seen, but it does extend the time, which is for Congress and the judiciary committee in the House to hold hearings. And in my view, as a former prosecutor, and I’d be curious to know if you differ on this, but it’s been publicly reported from individuals who were in the White House with the president, the day of the riots, exactly what you just said, that he was almost gleeful watching the Capitol be ransacked. And it’s one thing to basically call a reporter off the record, or to leak that off the record. It is another thing to say that publicly. And it really, to me, is not enough to just put in a media story saying it was reported X, right? And so they need a witness. And that means that they need people who have surrounded Trump and who are going to be very conflicted I think about what their role should be in the impeachment, particularly after the president has left office.

Anne Milgram:

And we should talk a little bit about what I think are serious and really unacceptable efforts by Republicans to minimize the harm that can be done by the president long-term and sort of, they keep saying, “Well, as long as we can get through the next eight days that everything will be fine.” Everything will not be fine in my view without accountability and a reckoning of what has happened. And so I think that to get those individuals who were surrounding the president that day, to get that kind of evidence in the record, you will need the House judiciary committee to subpoena witnesses; that takes longer and the way they would have to do it, I don’t think that they have a lot of time on this. They would have to be really… They would have to do it really tight. They would have to have their witness list. They would have to basically go in and try to just get this out as quickly and done as quickly as possible to get that to the Senate. It’s complicated. And so-

Preet Bharara:

I don’t think they’re going to do that-

Anne Milgram:

I don’t think they’re going to do it.

Preet Bharara:

Because they’re going to vote on the article immediately without hearing.

Anne Milgram:

And then it going to go, right? And so that means they have to rely on the public record and the president’s point of view.

Preet Bharara:

No. But there’s also a possibility of getting witnesses. And just because they didn’t appear in the House, you can have witnesses come in the Senate.

Anne Milgram:

Right. You can have them testify at impeachment. That’s right. Yes. So they can have witnesses in the Senate. Remember there was a big fight during the Ukrainian impeachment about whether or not they would call witnesses with not a sufficient number of senators voting to hear many of those witnesses, but we may be in the same position here, but there is a way-

Preet Bharara:

But the difference is that Chuck Schumer will be the majority leader.

Anne Milgram:

Yes.

Preet Bharara:

And he will have a view on witnesses, it’s different from Mitch McConnell potential, although by the way, Mitch McConnell and Donald Trump are on the outs. And there’s reporting that says, Mitch McConnell will never speak to Donald Trump again. And of course, Mitch McConnell’s wife, Elaine Chao, who was the secretary of transportation resigned a few days before. So I don’t know what the state of mind that Mitch McConnell is. I also think it’s the case, as you’ve mentioned these other witnesses, people who around the president, how will they feel about being called to testify? Once the president is gone and given the change of feelings that I think a lot of them have had given the resignations and everything else and the feeling of shock and anger. I think there’s a greater chance that some of these people will come forward and testify against Donald Trump because he will no longer be the commander in chief. And they’ve seen things firsthand and up close that should be mortifying to them. So I’m a little bit more optimistic that some of those people will come forward.

Anne Milgram:

I’m hopeful you’re right. And I also think that this just hits home closer than the telephone call to the Ukrainian president. It’s different than what we saw in January.

Preet Bharara:

Yeah. Because it happened before our very own eyes and there’s video. I mean, video is very compelling.

Anne Milgram:

And there’s violence and there’s a Capitol police officer who died at the hands of the insurrectionist mob. And so I do think, yes, I think it’s a different situation. I personally think that the Senate is going to have to do both. They’re going to have to work to confirm Biden’s nominees. They’re going to have to get… There’s just huge issues before the United States government with COVID. And so they’re going to have to do that work at the same time as they do this, but I personally, I don’t know how you feel about it, but I do favor impeachment. And I think it’s an important moment to basically have accountability and to have there be a reckoning and a conversation about what’s happened. And I think if we don’t… The argument that’s been given, I wonder what you think of this Preet, the argument that’s been given by a number of the sort of House Republicans and others is you’re just going to upset Trump’s supporters more, right? If you want there-

Preet Bharara:

And divide the country. So now-

Anne Milgram:

Yes. Exactly.

Preet Bharara:

Now it’s the responsibility of Joe Biden, by the way, who has been preaching unity, who has been talking about moving away from division, who by the way, was the victim of the high crime and misdemeanor that was the subject of the first impeachment is also the victim of, in a way of this misconduct that’s the basis of the second impeachment. What Trump has been trying to do-

Anne Milgram:

He’s the intended victim.

Preet Bharara:

He’s intended victim of all this stuff. And he, by the way, has been saying at some political cost to himself, with people on the left, “I want to move on. I don’t want to be divisive. Maybe it’s not the best thing to do.” And even then the chutzpah of some of these Trump supporters saying, “Well Joe Biden is making it worse by not saying let’s move on and not calling House and Senate Democrats.” Who, by the way, their lives were at risk from this insurrection. And Joe Biden is the bad guy for not telling them to stand down. It’s almost too much to take.

Anne Milgram:

Yeah. You don’t get to light the flame and then say, “Scream, the building’s on fire.”

Preet Bharara:

Yeah.

Anne Milgram:

They’ve started-

Preet Bharara:

They’ve started as if it’s in a theater.

Anne Milgram:

Yes. Right. Which brings us back to the president of the United States. And can he be charged with inciting violence? Because as we know from prior CAFE Insiders, it’s not protected speech if you stand up in a crowded movie theater and scream fire. And so this brings us right back to this conversation about the president Preet.

Preet Bharara:

So people don’t love it when I say this kind of thing, as I look at it, and it depends on what other evidence comes to light and what people say the president’s motivation was, what his intention was, what he said to people. He and others are sometimes a little bit smart. That includes Josh Hawley and Ted Cruz. They didn’t get up and say, which would make it a clearer case. They didn’t say, “I want you to match on the Capitol. And I want you to break in, and I want you to break the windows. And I want you to take hostages. And I want you to be armed when you…” They didn’t say all those things.

Preet Bharara:

There is I think plausible argument that all that violence was foreseeable and the things that he did say about fight and what Giuliani said about trial by combat and the state of mind that the president had when he was joyously watching the violence taking place, that’s all evidentiary support in favor of convicting him on one of these very serious statutes. But there’s also a countervailing legal principle of free speech that is accorded to the president and others as well. And it’s a tricky boundary, right? There’s a case from some decades ago called Brandenburg. That makes it seem difficult to convict a person who is not so explicit and was not directly and personally involved in the violence. It makes it difficult to convict that person on such a statue.

Anne Milgram:

So I don’t think it’s a simple legal question. I agree with you on that, but I feel very strongly that there needs to be an investigation of this.

Preet Bharara:

A 100%.

Anne Milgram:

And when one of the concerns I had was when sort of last week, the DCOS attorney said none of the speakers at the rally are going to be investigated and charged and that felt wrong to me. And just premature for the following reason, the President has a significant amount of conduct which you just went through that also predates January 6th. And so there is a lot that we don’t know about how this movement was organized. This was a movement and this was a coordinated movement. And you saw that the man who was wearing the silly outfit has been charged with a federal crime. And one of the things he stated when interviewed by the FBI was the president requested that we be there.

Anne Milgram:

And so I think we need to understand a lot more of what was happening on social media. What were the efforts undertaken by the Trump team with this Stop the Steal branding campaign that they were bringing nationally? And I think we have to understand the President did say, “Go to the Capitol.” Now he didn’t say storm the Capitol but I think it is required that there be a deeper investigation before a conclusion is brought on this. And it may be, I agree it’s hard to charge. It may be that it’s not the correct thing to charge. And that’s a reasonable conclusion potentially at the end of an investigation after you’ve seen all the facts and evidence. It just felt really wrong to me.

Anne Milgram:

And look also there’s a common sense moment of the president stood in the Ellipse and basically said, “They’re stealing the election from us. This election is fraud. I won by a landslide. Go to the Capitol.” There’s a common sense moment of whether or not the president is criminally liable for it. In my view, he is. He is liable as the head of the party and the individual who called on people to come to Washington for January 6. He called for the senators and the members of the House to object to the certification. So he is responsible. The question of whether or not he has criminal liability, I think is a question for investigators at a more thorough review of the evidence.

Preet Bharara:

Also, there’s multiple things we’re looking at here. We’re not just talking about incitement and sedition. A lot of the things he did would relate to interference in an election. And it also would bring into, I think, the equation, the call with the secretary of state in Georgia. And I think that should be looked at. There’s this weird and I think dishonorable thing that happened in the last week where the U.S. attorney in Atlanta, according to reports was forced to resign because the president was unhappy with his voter fraud efforts, continues to be this bugaboo for Republicans is false. This False Holy grail that they keep seeking. But I think there’s a lot of questions to be asked about who else the president was in touch with. What senators was he calling?

Anne Milgram:

What secretaries of states he was calling.

Preet Bharara:

In other States as well. And it seems like there was a very broad based campaign led by the president himself and participated in directly by the president himself. He’s the one who got on the phone with these people to try to interfere with not just the broad overall election but individual elections in states. And that in conjunction with his role in the riot, I 100% agree with you. Merits deep investigation.

Anne Milgram:

Also, on the Georgia and the move. And we haven’t really covered this because there’s been so much happening but the president forced out the Atlanta U.S. attorney who by the way was a Trump loyalist. And we should say that he just wasn’t loyal enough. And he wasn’t willing to bring these election fraud cases. And what the president did in that instance was… and again we talked about this when it came to the firing of Geoffrey Berman in the Southern District. The President wanted to bring in the individual who he thought was more loyal the New Jersey U.S. Attorney Craig Carpenito. He wanted Carpenito to move into the Southern District U.S. Attorney instead of promoting Audrey Strauss who was the first assistant and the second in command in the office.

Anne Milgram:

And because this was publicly reported that was not allowed to happen. It did happen in Georgia instead of promoting the first assistant to be the U.S. attorney in Georgia. They took the U.S. attorney from the Southern District of Georgia and put him in. And we can only assume that that was done because he’s an extreme loyalist and maybe willing to bring false election fraud cases. And so there’s a consistent effort to undercut the rule of law. And the president has done it in the media. He’s tried to do it in the courts but he’s been rebuffed. He’s tried to do it in the state election with the election officials he’s been rebuffed. But we don’t, I think, have a full accounting of all those efforts yet.

Anne Milgram:

And again, I think there’s whether or not there’s a charge abroad I really do come back to whether it’s a 9/11-style commission. There has to be a full and thorough accounting for what has happened with the president and the election. His efforts to basically invalidate the election incorrectly to basically lie and cheat and ultimately steal the election. There has to be a conversation about what he did, what worked, what didn’t work. And I talked about it at the beginning but there’s a really compelling piece by Fiona Hill in political talking about this was an attempted self coup by the president. But in order to have been successful, he would have needed the courts to have gone in his favor.

Anne Milgram:

The media has… We’ll talk about Twitter in a minute but the media has now stepped back from him. He generated his own media to a certain extent. He does have loyalists but at the end of the day the election officials stood firm. And so there are a lot of examples of ways in which I think our constitutional structure has held strong but there’s also a way in which we have to have a real conversation about what is happening and how do we prevent future harm.

Preet Bharara:

Yeah. And by the way, those things are not mutually exclusive. You can have an impeachment proceeding, you can have a senate trial on that. You can have DOJ investigating, you can have local prosecutors investigating and you can also have a sort of 9/11-style commission to figure out how to avoid this kind of thing happening again in the future. So all those things can happen. Before we talk about what should happen to the actual participants in the violence, the riders and their fate in the charges brought against them, I think they’re just very quickly and we can talk more about this in future weeks.

Preet Bharara:

There is discussion about using Section 3 of the 14th Amendment to expel people like Senator Josh Hawley and Ted Cruz. And there’s a member of the House. It’s unclear how that mechanism works. And there’s some dispute in legal circles about whether or not there needs to be enough evidence to prove under the insurrection statute that someone has been found guilty of inciting an insurrection or if the standard is more like impeachment where members of Congress can decide on their own, if those standards have been met. So I don’t know what’s going to happen. What I do know is there’s a lot of blowback against Josh Hawley and Ted Cruz and some others. And I think deservedly so.

Anne Milgram:

Yeah, I think Mo Brooks, the congressmen and Louie Gohmert there’s a lot of blowback against them. And also rightfully so. And I think that there has to be a reckoning or a conversation about accountability and what it looks like for them. I think we’ll have a time to talk about what should happen. I will note that what’s been fascinating to watch about Hawley is that his book publisher is not willing to publish his book. His former mentor, John Danforth and Missouri Senator has basically said, “It’s the worst mistake in my career that I supported him.” And so he is starting to feel the repercussions of this but he also, it turns out was not truthful when he said that an Antifa mob had attacked his house and basically vandalized his house. It turns out that’s not true.

Anne Milgram:

And so there are just huge questions that I think need to be answered. And there’ll be a lot of time to talk about what that looks like and whether Congress holds these individuals responsible. I think you can… Can you have a recall election? Could the people in their communities have conversations? There might be a number of options for people to consider but I do think it should be a point of conversation for the leaders of this effort. I’d also say one other thing I don’t know if you’ve noticed and we should talk about this more down the road, but we’ve seen companies now and there’s a reckoning that needs to take place internal in these businesses as well but they are now stepping forward. And some of them are saying, “We will not give money to any individual who voted to not certify the electors.”

Anne Milgram:

And that’s 140 plus members of Congress. And that’s going to take a big hit including, I think Rick Scott, who now chairs, I think the Senate Campaign Committee, and that’s the individual he’s supposed to raise a lot of money. He voted against certifying the electors and a number of folks are saying they will not contribute any money to him. And so there’s a real life hammer that’s coming down on these folks. Again, I’m not saying that that’s sufficient but I think it’s really important.

Preet Bharara:

Yeah. I would know the irony. If it turns out that Donald Trump’s and others involvement in insurrection and trying to illegally overturn the election is the cause of getting big corporate money out of politics I can thank them for that. So we have thousands of people descend upon the Capitol. We just talk before we go about what should happen to them. What is happening with them? And as I think it’s worth pointing out again, astonishingly how gently many of them were treated. If it was 2000 Black people or 2000 Muslims or people who look like me, who were literally breaking into the Capitol, I think we’ve seen a lot more death and that has people angry as well because it looks like a double standard.

Preet Bharara:

And as we said at the outset, there were some Capitol police officers who looked like they were in cahoots. There’s investigations going on with respect to a number of them. We were told through news reports. And not a lot of arrests happened that day. And people will point out again comparing it to the protests after George Floyd was killed. You had hundreds and hundreds of arrests in connection with protests many of which were largely peaceful. And here you have the FBI and other authorities fanning out throughout the entire Lower 48 to try to find people based on social media postings and tips from neighbors and others rather than have them be arrested at the scene.

Preet Bharara:

So it’s very upsetting to people to see two standards of justice here. And as the arrests and charges come pouring in some of them are fairly low level offenses of entering federal buildings when they’re not supposed to. We have not seen any murder charges yet. What do you make of the level of charging that’s happened? And what do you think will become of the other folks who haven’t yet been charged?

Anne Milgram:

The first point we should talk about and I want to be very clear on the law enforcement question. We have seen there are investigations. I think there are 10 or 12 capital officers who are being investigated for working with the rioters, the extremists who entered the Capitol. There are also individuals and other police departments across the country who were off duty and who were present. And some of those individuals were present. It’s been reported inside the Capitol. And it’s so troubling to me. There’s a Buzzfeed story, an African-American Capitol police officer. I think this is a really moving article and we should attach a link to it where he talks about there were people walking by me carrying this blue police flags and they were pushing police officers. And they were trying to essentially and they were saying, “We’re with you. You’re not with them. You’re not with the Capitol police officers.”

Anne Milgram:

And so any Capitol police officers who went along with the insurrection or stood down when they should have stood up they need to be held to account and disciplined. But I do also want to note there are a number of heroic Capitol police officers and we’ve seen some of those videos where the officers, they put themselves in harm’s way there. So there were a lot of law enforcement officers who really did an outstanding job that day. And moreover, one of the reasons why people were allowed to leave is that they were so deeply and woefully underprepared for this. And you are right to talk about there are two standards of justice.

Anne Milgram:

When you look at the response to the Black Lives Matter protests, a lot of which was led by the federal government that it brought in thousands of National Guards members. Here, they made a mistake. What the Federal government did in the June Black Lives Matter protest was absolutely wrong. It was a very, I don’t want to say spur of the moment protest, but it was not planned. It wasn’t being talked about on social media. There were no hashtags that said Storm the Capitol. No one was talking about taking members of Congress hostage. The president of the United States was not talking about the election having been stolen from him and being fraudulent. So the circumstances are entirely different.

Preet Bharara:

And nobody said hang my pants.

Anne Milgram:

Exactly. And so in June, when this happened, the federal government was heavily involved. Will Barr ran the command center. Remember the members of the defense that sort of Mark Esper was there. Mark Milley was there. The chiefs of DOD. And I think there was a huge reaction to that. The mayor of DC, the Capitol police, the Metropolitan police in DC, they all didn’t want to be accused of this heavy show of force. And then they made the wrong decision here. And this merits a much longer conversation but there was intelligence of what was happening as Michael Chertoff the former head of Homeland Security said, “You didn’t need the intelligence. You just needed to read the newspapers.” It was that obvious but for people like the FBI, like the department of Homeland Security who are on these online chat centers every day. They’re following extremists. There was a lot of warning of what was going to happen.

Anne Milgram:

And they were underprepared for it. They were underprepared and there was no command control structure. And that’s why it devolves into. And they didn’t imagine that the President of United States was going to put out this call to go to the Capitol. You put all that together and they were scrambling to keep the members of Congress safe, which thankfully they did. And they were scrambling to try to get people under control in the Capitol and they failed. They were not able to take control of the Capitol back until the Metropolitan Police Force sent a commander in who took charge, command and control. There were FBI teams who were there. The National Guard came four hours later and that’s a whole another conversation.

Anne Milgram:

But only at that point were they able to take control and I suspect what we will find out is that they did not have the capacity at that moment to make arrests which they should have been able to do. They should have stopped people from going in and they should have had the capacity to make the arrest. But it’s like a snowball effect that the mistakes just compound on one another and then you get to this point where you’re letting all these people go.

Anne Milgram:

As to the charges we’re going to see more. I have no question but in my mind the FBI and other law enforcement agencies are aggressively looking at who was involved in the death of officer Sicknick. I have no question but that anybody who engaged in violence against officers within the Capitol they’re looking at, I think I hope that they’re also looking at the individuals who were coordinating these efforts and who were perhaps most responsible for inciting violence. We talked about the Molotov cocktails and the assault weapons. There were pipe bombs that put in front of the DNC and the RNC. We have yet to see arrests. It hasn’t been publicly reported that they’ve interviewed folks or arrested anyone related to those so there should be a lot coming.

Anne Milgram:

And right now I do know that it looks small, that a lot of the folks are charged with stealing property, with violently entering the building, with disorderly conduct and the statutes. The sentences are up to a year. I think the question of whether or not people should be charged with sedition, should be charged with solicitation to violence. All of that requires deeper investigations. And I do think we’re going to see additional charges. I would also note that just by way of comparison there were over 300 arrests in the Black Lives Matter protest. And again, no one stormed the Capitol during that period of time and there’s something like, I think maybe there’s 70 or 80 arrests now. 50 of those are fairly low level cases brought in DC Superior Court and maybe 20 or so are more serious federal crimes but we will see more, I think.

Preet Bharara:

So Anne, we’re kind of running out of time here. We could go on for a long time about the charges and how things will play out in the Senate. Some other thing happened that has gotten a lot of people’s attention and made some people interestingly more upset than the insurrection itself. And that is the permanent suspension, or some people say that’s an oxymoron that the permanent suspension of Donald Trump from Twitter. That’s been his big megaphone even though he has other opportunities to use megaphones. And we haven’t heard from him. We don’t know what he’s thinking these days.

Preet Bharara:

And there’s some controversy with respect to that takes the position that in order to reduce the risk of further violence and riding and insurrection. After repeated warnings, the president of United States still continues to post things that are not true and that foment violence because they go to this lie that he keeps telling about the election and keeps trying to change the results of the election. So he’s off Twitter and a lot of people are applauding that. What do you think?

Anne Milgram:

When people think about First Amendment and free speech, it really is. It’s the first amendment to the constitution is basically talking about Congress can pass no law. It’s talking about the government and what the government can and can’t do. [crosstalk 00:57:06].

Preet Bharara:

Is Twitter in the constitution?

Anne Milgram:

It’s not in the constitution and it is not in government.

Preet Bharara:

Come on.

Anne Milgram:

It is not. And so I think there’s been a lot of commentary out there that I think is just wrong. And I understand why people are concerned about freedom of speech. And that’s a really important… It’s one of the things that America is built on. That we openly disagree with one another and that there aren’t repercussions. That being said, Twitter like many other social media companies, when you get an account, you agree to the terms of service and Twitter in their terms of service, very explicitly prohibits essentially inciting violence. And so basically they’ve been warning the President repeatedly, don’t do this. They’ve been labeling his tweets as inaccurate. And I think they were able to have this illusion that it was just words. And it was a really an incitement to violence until last Wednesday when it became very clear that there was violence and that there were armed individuals who were showing up at the Capitol and that they felt that they were responding directly to the President.

Anne Milgram:

And it’s not just Twitter, Amazon Web Services, they host websites. They’ve taken Parler which is become really a hotbed for the pro-Trump extremists. Amazon has now taken them off Amazon Web Services. And it’s basically private companies saying, “You’re violating our terms of service. We’re not comfortable having people incite violence.” And so which they’re entitled to do. So I think it’s worth the conversation about we don’t want to be regulating speech we disagree with but there’s a line. And that line is clear in the law. It’s also very clear in the terms of service and private companies. You don’t get to tell a private company what their terms of service are.

Preet Bharara:

Yeah. So two final points for me, one in favor of Twitter and one against and you touched on it a second ago. The people who are complaining about this decision by Twitter have it exactly backwards. The threat to freedom is not that a private company has chosen not to carry the messages of the head of government. The threat to freedom comes when you force a private company to air the views and statements false or not of the head of government.

Anne Milgram:

Right. That’s such a great point.

Preet Bharara:

That’s where the threat… People are saying this is like China. It’s not like China.

Anne Milgram:

No. In China, whatever the social media Weibo or whatever it is, they’re equivalent of this. They could never have the president of China not be on it. It’s essentially run by the government, by the state, right? There’s a lot of control.

Preet Bharara:

These capitalists like Josh Hawley and others who cry censorship, they don’t really understand. I think they do understand they’re smart people but it’s a nice flag to wave on Fox News and elsewhere and say, “Free speech, free speech, free speech.” Because that slogan is so ingrained in us. But then I will say point against Twitter. I’m not of the view that government should decide what Twitter’s rules are or not. But I do think that it’s not great that there is a page policy by which huge companies, social media platforms like Twitter and others decide who gets to be on, who gets to be out. They have that right. That’s the other interesting thing. It used to be the case that if someone has the power to do something that Trump has to say, well, that ends the argument. They have the power to do it. It’s fine.

Preet Bharara:

Well, Twitter has the power to do this and I’ve always said it doesn’t necessarily make it fine. But for good citizenship and good corporate practices and I think for good business also, I think you’d like to see these social media companies come up with a more transparent process.

Anne Milgram:

I agree strongly with that.

Preet Bharara:

A close eye independent committee that sets the rules and the standards. And it is a legitimate question to ask, why is Trump off Twitter? But you have leaders of other countries who have engaged in despotism who are still on Twitter. And maybe there are good reasons for that. Angela Merkel has decried the Twitter decision, government should not be deciding but I would urge these companies to figure out a way to do it that is open and transparent and fair across all party distinctions.

Anne Milgram:

I agree with that. I would also note that Twitter, they do sometimes take political individuals off Twitter. They just took one of the Uganda political figures off Twitter. And this is neither the first time nor the last time that Twitter will do it. But the question is a fair question, which is it is an enormous power and it is enormous power that we’re essentially entrusting tech entrepreneurs and very successful business people to make. And there are rules and standards but there should be a process. And that process should be more transparent because there should be comfort that individuals are being treated equally and fairly when they’re basically being evaluated under the existing standards.

Anne Milgram:

And I think that’s a really reasonable and fair thing to say. I will also say this to you. I personally take all the moves by social media. And I do this also in light of the public statements that are made by members of Congress who were just briefed on the potential threats next week. I believe that they understand that there is deeper harm that is possible and that we are not out of the woods on this insurrection and the potential for violence. And so I think it’s easy for us to sit here now and weigh these arguments but I also want to be fair to them sitting as companies having just watched something horrific happen and not wanting to be the conduit for more of that in the coming weeks.

Preet Bharara:

An extreme thing happened, an extreme thing happened in United States of America and it was fed by people at the top of U.S. government. And so it stands to reason that some of the reactions are going to be pretty extraordinary to use your word. We’ll be back in a week, one day before the swearing in of Joe Biden. Luckily Anne and I are still on Twitter.

Anne Milgram:

Last question for you, is Donald Trump going to self pardon before we come back?

Preet Bharara:

Yeah, I think he will. And we’ll be able to talk about that. I don’t know how effective that will be but my view has always been, if I had a dollar to bet I would bet that he would because I don’t think he has any boundaries at all. So luckily we’re still on Twitter so you can tweet at us or if you have questions you can send them to us at [email protected]

Anne Milgram:

And we’ll do our best to answer them. Thanks so much. Take care.

Preet Bharara:

Thank you for listening. You can now try the CAFE Insider membership free for two weeks. To join head to cafe.com/Insider. That’s cafe.com/Insider to all our Insiders. Thank you for supporting our work. That’s it for this week’s CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The Executive Producer is Tamara Sepper. The Senior Producer is Adam Waller. The Technical Director is David Tatasciore and the cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.