• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce discuss the latest developments in the Department of Justice’s challenge to Texas’s restrictive abortion law, including the district court order temporarily blocking enforcement of the law and the Fifth Circuit’s reinstatement of the law. They also break down the indications that former Trump campaign CEO Steve Bannon plans to defy the subpoena to testify before the House select committee investigating the January 6th insurrection at the Capitol, and the Senate Judiciary Committee’s report that revealed new details about former President Trump’s efforts to pressure DOJ officials to overturn the results of the 2020 election.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce.

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network.

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

REFERENCES & SUPPLEMENTAL MATERIALS

Up Against The Mob, CAFE

RSVP to Now & Then live taping featuring hosts Heather Cox Richardson and Joanne Freeman in conversation with Carol Anderson. Thursday, 10/21 @ 6:30pm ET.

ABORTION

Texas S.B. 8 – Texas Heartbeat Act

United States v. Texas, Fifth Circuit Court of Appeals, opposition to motions for a stay pending appeal, 10/11/21

United States v. Texas, Fifth Circuit Court of Appeals, order, 10/8/21

United States v. Texas, U.S. District Court Western District of Texas, order, 10/6/21

Dobbs v. Jackson Women’s Health Organization, U.S. Supreme Court, petition for writ of certiorari, 6/15/20

Roe v. Wade, U.S. Supreme Court, opinion, 1973

“Preliminary Injunction,” Cornell Legal Information Institute

JANUARY 6TH COMMITTEE

“Note From Elie: Contempt of Congress Prosecutions are Necessary but Fraught,” CAFE, 10/1/21

2 U.S. Code §192 – Refusal of witness to testify or produce papers

“Thompson & Cheney Statement on Subpoena Deadline,” House Select Committee press release, 10/8/21

“Select Committee Subpoenas Individuals Tied to the Former President in the Days Surrounding January 6th,” House Select Committee press release, 9/23/21

“Bannon to defy subpoena from January 6 committee, citing Trump’s ‘direction,’” CNN, 10/8/21

“Jan. 6 Panel Threatens to Pursue Charges Against Bannon,” NYT, 10/8/21

“​​Biden White House waives executive privilege for initial set of Trump-era documents sought by Jan. 6 panel,” Politico, 10/8/21

“Executive Privilege,” Cornell Legal Information Institute

TRUMP ELECTION

“Note From Preet: Hype,” CAFE, 9/30/21

“Subverting Justice: How the Former President and His Allies Pressured DOJ to Overturn the 2020 Election,” Senate Judiciary Committee majority staff report, 10/7/21

“In Their Own Words: A Factual Summary of Testimony From Senior Justice Department Officials Relating to Events From December 14, 2020 to January 3, 2021,” Senate Judiciary Committee minority staff report, 10/7/21

“Following 8 Month Investigation, Senate Judiciary Committee Releases Report on Donald Trump’s Scheme to Pressure DOJ & Overturn the 2020 Election,” Senate Judiciary Committee, 10/7/21

“Grassley Releases Republican Report on Review of Trump’s management of Justice Department following 2020 Election,” Senate Judiciary Committee, 10/7/21

Preet Bharara:

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

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce?

Joyce Vance:

I’m doing well this morning, loving the cool fall weather and sort of looking ahead. Which reminds me, you’ve got something coming up, don’t you? A birthday?

Preet Bharara:

Oh. Yeah, we stop acknowledging those after a certain age. But yes, I do, this week.

Joyce Vance:

My mother-in-law told me that when I turned 60, I could start drinking beer out of a can and smoking cigars in public, neither of which I’ve ever done. But I do love the notion that-

Preet Bharara:

Wait, hold on, hold on, hold on. You’ve never drunk beer out of a can?

Joyce Vance:

It was sort of a joke, because I always drink beer out of a can, but most of the women in the south don’t, or at least women of a certain age. But I loved her notion that when you turn 60 you could just do whatever the hell you wanted, and I’ve pretty much adopted that as my own.

Preet Bharara:

Yeah, I started doing that at 40. So yeah, did you have a good weekend?

Joyce Vance:

We did, we had a really nice weekend. I spent the weekend, it’s sort of embarrassing, but true, cleaning out my chicken coops. I took everything apart, cleaned it thoroughly for the fall. It’s the first time I’ve ever done it, but we’re about a year in and you need to do that once a year. The chickens thought it was fabulous, they ran around and enjoyed everything, and I’m in a great mood this week.

Preet Bharara:

Do we have any follow-up on the new dog?

Joyce Vance:

I just got a text on our family text loop that points out that October 22nd is National Make a Dog’s Day, and October 22nd is actually our second kid’s birthday. So I suspect there’s going to be a Vance family trip to an adopt-a-shelter and that we will have a dog by then.

Preet Bharara:

Oh, all right. Well, we’ll be talking about that. Before we start talking about all the legal stuff, Joyce, that you and I spend time focusing on and explaining. A couple of things from the CAFE family. One, the final episode of Up Against the Mob is out this Wednesday, October 13th, so check that out wherever you get your podcasts. And our favorite historians, Heather Cox Richardson and Joanne Freeman will have a live taping of the Now & Then podcast with a special guest host, historian and author of The Second: Race and Guns in a Fatally Unequal America, which is an interesting book and take, Carol Anderson. That will be streamed live next Thursday, October 21st. So just on the eve of your getting a new dog.

Joyce Vance:

Absolutely, and I am really looking forward to that, I think that’s going to be an informative and an instructive listen.

Preet Bharara:

So that’s October 21st at 6:30 PM Eastern Time, it’ll be on CAFE’s and Heather’s Facebook pages. And you can RSVP at CAFE.com/live, and you’ll get a reminder before the event. So I guess, Joyce, this week, I guess we can start again with the saga of this abortion law in Texas, SB 8. And it’s valid, it’s not valid, there are arguments back and forth. There are people who have sued an abortion provider. DOJ was noticeably absent at the beginning. The DOJ filed its so complaint, as we’ve talked about, against the law. What the heck is going on and what should people know?

Joyce Vance:

Procedurally, it’s so confusing. I know everybody remembers from our earlier conversation that we’re not even talking about the merits of the lawsuit and whether or not the statute is constitutional yet, we’re only talking about whether there should be a preliminary injunction, that means blocking the statute from going into effect while litigation over the merits is ongoing. So that’s sort of the framing for where we are. We now have the ruling, that you and I discussed last week from the district court, 113 pages that say, “This law, SB 8, needs to be enjoined while everything else is going on.” Then the defendant in that case, the State of Texas runs to the Fifth Circuit, and they ask Texas very predictably to stop the injunction so that SB 8 can go back into effect and people in Texas will no longer have the ability to get abortions.

Joyce Vance:

And that’s what the Fifth Circuit does, they enter what’s called an administrative stay, and essentially they put SB 8 back into operation. They gave DOJ until five o’clock today to respond, this happened late Friday night. The DOJ did not wait until late today to respond, they responded yesterday afternoon. They responded in the Fifth Circuit, and that’s I think the interesting piece to focus on here, because DOJ had the option of taking this decision about the injunctions right to the Supreme Court. They chose to stay in the Fifth Circuit.

Joyce Vance:

I don’t have a very good crystal ball, but here’s my guests about what’s going on. DOJ wants to build a strong, formal record before this case gets to the Supreme Court. They’ve got this iron-clad opinion from the district court. And when I say ironclad it’s for this reason, the decision about whether you get an injunction or not largely depends on whether you have a strong chance of success on the merits. Right now, Roe v. Wade is still the law in this country, states aren’t entitled to interfere with pre viability abortions, and that’s what Texas has done. So that’s a really strong case for getting an injunction to block that law from being in effect while litigation is ongoing. DOJ now in the Fifth Circuit will have an opportunity to enhance that record, more support for the district court’s decision and perhaps as importantly, expose the weaknesses in the State’s argument at this stage before the case ultimately heads on to the Supreme Court.

Preet Bharara:

A couple of things interesting to me about Judge Pitman’s decision, one is the strength of the language, the power of the language. He said among other things that this law was “An unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right” He also makes a point that matches a theme that you and I have been talking about in multiple contexts here, and we’ll talk about it again, when we get to the subpoenas by the January 6th panel of the Congress. And that is, there are actions that need to be taken sometimes that some folks are loath to take because they’re extraordinary or they’re unusual, but sometimes you have to do that because the thing that you are responding to is itself exceptional or unprecedented or extraordinary.

Preet Bharara:

And here Judge Pitman kind of acknowledges that there’s a certain kind of case where the courts are loath to allow the federal government to file a certain kind of suit directly against a state. That’s not the norm, right? And that’s what’s happening here. But Judge Pitman says that this case is exceptional, essentially, because of the design of the state law and its effect on the constitutional rights of women in Texas. So he’s again echoing this point that you and I have been making, whether it’s the 1/6 Commission, or it’s how you deal with COVID and mask mandates and vaccination mandates, or it’s dealing with a very deliberate end run around, a basic and long standing constitutional right, sometimes you got to take strong action that otherwise you wouldn’t take, right?

Joyce Vance:

Yeah, I think that’s right. There’s a really interesting thought exercise here. Abortion has become so politicized in our society that it’s almost one of those issues that people just can’t talk about anymore. And so I’m not sure that we’re even a society that’s capable of setting aside our personal deeply held views on the abortion issue. But that’s really what you have to do here, you have to set aside those views and look at the rule of law issue here. How should our legal system work? We have principles around not meddling with clearly established rights before litigation is completed on their merits.

Joyce Vance:

And to make that concrete here, Roe v. Wade is the law. There are certain rights that exist. We want those rights to stay in place during this ongoing litigation. And look, the Supreme Court may well decide to overrule Roe, or to gut Roe this term in the Mississippi case, and once they do that, that would change the perspective here. But at least for now we should have a legitimate rule of law process that looks at consistent process across issues. What we can’t have is a special jurisprudence for abortion, and that I fear is what the Fifth Circuit and Supreme Court have come perilously close to in these proceedings.

Preet Bharara:

So Joyce, as you point out, Judge Pitman wrote this 113 page opinion which you and I agree with, and some folks who were against SB 8 were celebratory about that. Then the Fifth Circuit, which is the Appeals Court, that includes Texas and a number of other states, put the kibosh on that. And so we’re back to the situation we were in before, that SB 8 is still operative. Not that it’s particularly relevant, but one of the judges that gets attention on that Fifth Circuit panel is a judge by the name of Jim Ho. And I know him, or at least I used to know him fairly well. When I was chief counsel to Senator Schumer, he was my counterpart and chief counsel to Senator Cornyn of Texas. I used to be, I no longer am, but used to be on his Christmas card list. And you know what the front of his Christmas card said every year?

Joyce Vance:

What did it say?

Preet Bharara:

Ho ho ho.

Joyce Vance:

You’ve got to love somebody with a sense of humor like that.

Preet Bharara:

Are we going to be canceled because we’re talking favorably about a guy who hates abortion?

Joyce Vance:

Well, this is an interesting panel on the Fifth Circuit, and if people want to cancel us for having friends who are on the other side of the political spectrum, then I’m afraid they’re going to have to have at it, because I live in Alabama, which means a lot of my friends are conservative. I think it’s important to have friends that you disagree with and can have respectful conversations with, I wonder how that will play out on this Fifth Circuit panel where you’ve got Judge Ho who’s a Trump appointee, one of the other judges is a Bush appointee, and then you’ve got a Clinton appointee, the final judge on the panel, so that’ll be some interesting internal conversation going on.

Preet Bharara:

Can I ask you a question not that you’ve mentioned which president’s appointed which judges? Some people don’t like that John Roberts issued a statement about that not too long ago, saying there are no democratic or Republican judges, they are just judges. And I understand the impulse behind that, and I understand the impulse against sort of quantifying and evaluating every judge, particularly at the circuit level, based on which president appointed them, as if you can predict everything that they are going to do. Does it bother you to the same extent it bothers John Roberts and others, that people reduce judges to the presidents who appointed them? Or is that this necessary and common sense?

Joyce Vance:

It used to bother me a whole lot, to the point that I simply would not engage in that regard at all. And then during the Trump administration, that became more of an issue. And I actually know the judge that prompted the Chief Justice to make that statement. It’s a federal judge in Berkeley, Jon Tigar, who was one of my father-in-law’s last law clerks, and he had made a ruling that prompted that sort of outbreak of commentary from the former president. And this almost worked in a weird perverse reverse fashion where you felt the need to point out that Trump appointed judges or Republican appointed judges were ruling against Trump in some of these cases.

Joyce Vance:

And I regret that whole scenario. I mean, this is one of those norms that really got busted in the Trump era, because you know, Preet, probably better than I know, that judges, especially court of appeals judges, don’t really hew a political line once they get on the bench, they call the balls and the strikes. There are these highly politicized issues like voting rights and abortion where judges tend to vote more in line with the beliefs of the party that appointed them. But judges can do some really interesting things once they’re on the bench, you don’t have to look any further than the Supreme Court and Justice Kennedy to understand that.

Preet Bharara:

We keep covering this issue of SB 8 in Texas, and we will cover the Mississippi law, explain to people what’s going to happen in the immediate future with respect to the Texas law though?

Joyce Vance:

So abortion issues aren’t going any place. The Fifth Circuit should issue a ruling on the injunction. The party that loses will then take an appeal to the Supreme Court, whether we will get another shadow docket decision or whether the court will do something akin to setting the schedule to hear the Texas case alongside the Mississippi case is still up for grabs. I tend to think that that won’t happen just because of timing, the Mississippi case is argued on December 1st in front of the Supreme Court, it would be hard to complete briefing on the Texas case to work with that date. So in some sense, we’ll have to wait and see what happens, but the takeaway is this Texas case isn’t going anywhere, it’s going to be on the front burner for the next few weeks.

Preet Bharara:

So we’ll keep talking about the Texas law and the Mississippi law, and I’m sure we’ll be talking about it through December 1st and for many weeks after December 1st as well. You know what else we’re going to be talking about, Joyce, for a long time? The January 6th Congressional Select Committee in the House that is trying to examine the who, what, where, when intentions, state of mind, the various people who are involved in the insurrection of January 6th. And you and I have talked about how Bennie Thompson, the chair, has issued subpoenas to various people and what’s going to be the result of that and what will be the consequence of defying the subpoenas. Now we know that among other things, the aids closest to Donald Trump, Dan Scavino, and Kash Patel, and Steve Bannon and Mark Meadows are all defying the subpoena basically at the instruction of Donald Trump. So I want to ask you about that in a moment, whether or not you think that’s obstruction?

Preet Bharara:

But to me, the craziest case is Steve Bannon who’s claiming executive and other privileges, and just so non-lawyers are aware, executive privilege you can argue about if all the parties were in the executive branch and there are the basis for saying that it should be invoked or not invoked. There is no basis for invoking executive privilege if you were a private citizen at the time there was a communication between the president and you. Steve Bannon was an indicted private citizen. As people keep saying, he was a podcast host, do podcast hosts have executive privilege? If so I’m going to take full advantage of that, but I don’t think we do, right?

Joyce Vance:

I’m pretty sure that we don’t, but why ever would the former president of the United States want Steve Bannon to do this if the law is so clear? Is he just trying to delay the proceedings?

Preet Bharara:

We were talking before we started taping about this issue of defiance of subpoenas, and what is the point of Congress having this power? And we’ve talked before on the show, and I’ll just mention it again, there is a very dramatic distinction and difference between the kinds of subpoenas that you and I issued when we were at the Department of Justice that can be enforced and backed up with criminal contempt power, and we’re backed up by criminal contempt power, it is really, really hard to defy with impunity a grand jury subpoena issued in the environments where we used to work, congress is different. And it used to be the case, at least traditionally, that Congress would issue subpoenas. I oversaw the issuance of subpoenas when I worked on the investigation of the firing of US attorneys back in 2007.

Preet Bharara:

And generally speaking, there is a feeling that even though the law is murky and that defiance is an approach that can be taken, some accommodation is necessary because of political and public pressure not to look like you’re just totally flouting a subpoena from Congress. When we issued subpoenas to various aids, to former Attorney General Alberto Gonzales back in 2007, there was a fight, there was an argument. And ultimately there was an agreement, because it was untenable, it felt like it was untenable to simply defy and say, “Go to hell.” That feeling that it’s untenable is gone when you have someone like Steve Bannon who’s a private citizen is saying, “Yeah, go to hell. I don’t acknowledge you at all.” It’s a bit of a reflection of the march towards anarchy that you saw reflected in the insurrection itself. The Trump people no longer feel that there’s a price to be paid in being outright defiant, even though the law is 100% against them. What’s going to happen, right?

Joyce Vance:

It’s the most troubling question that we come out of the Trump administration with, how do you restore norms when they’ve been busted? How was Trump so very successful in convincing Americans, our neighbors, our family members, that it’s okay to break the rules that have served us pretty well in all this time? I mean, democracy is always a messy process, right? But as you say, this notion of accommodation and the idea that the parties have to work together, because the political cost to one party of simply refusing to operate in good faith has always been perceived as being too high for a party to pay in order to get its own way. But now with Trump, there’s almost a celebration of breaking the rules, and that’s what enables so much of this. I think that has to be what fuels, for instance, Bannon’s refusal to testify, along with a strategy that Trump has used time and time again, which is using delay to benefit himself.

Preet Bharara:

So, as we talked about before, there are three ways to go about this, right? One is Congress exercises its inherent power of holding a defiant witness in contempt of Congress. And presumably, although it hasn’t been used in a hundred years, they can send out the Sergeant at Arms, put that person under arrest. I think you and I agree, even though it upsets a lot of people, that the likelihood of that is close to nil. There’s no process in place, there’s no jail, almost certainly not going to happen.

Joyce Vance:

I think that’s right.

Preet Bharara:

Then you can proceed through the courts and try to enforce the subpoena through the civilian courts, that will engage in a lot of delay, I’m not sure how long the delay. And the other is to make a criminal referral to the Department of Justice. Now, my question to you is, repeating the theme that I’ve mentioned a few times already, is people need to understand historically that those kinds of referrals are usually met with silence by the Department of Justice. And often it’s the case that the Department of Justice has been appointed by the president of the executive branch that is being subpoenaed by Congress in the first place, and attorneys general are loath to prosecute people who defy subpoenas from Congress, it hasn’t happened, this is a slightly different circumstance. But the question is, even though that’s very, very, very seldom used, and it’s not something the Department of Justice likes to do, is it an extraordinary option that they should use given how extraordinary the insurrection was?

Preet Bharara:

That’s something that’s happened, let me count, carry the one, zero times, zero times in the history of the country, is this the time that DOJ should exercise, that Merrick Garland should exercise the Department’s ability to bring a criminal case, even though it’s a misdemeanor, a criminal case and seek to imprison, let’s pick on one person, Steve Bannon? You and I kind of, at least me, blithely say it’s not going to happen because it hasn’t happened. But I keep coming back to this dynamic, something very, very extraordinary has happened that’s very, very bad. Do the people who have powers that are seldom used or never used, are they now justified in doing something extraordinary to respond and address the first extraordinary thing? And I’m getting closer and closer to the idea that they should, what do you think?

Joyce Vance:

If you reserve this sort of power that DOJ has, discretionary power to use only in extraordinary cases, and if you don’t use it in a case where there’s an insurrection with the possibility of high-ranking people in government who were complicit, if you’re not going to use it for this instance, I’m not really sure what you’re conserving that power to use it for. But look, here’s the risk, and this is something that we’ve talked about that we need to be open-eyed about. We are willing to label the insurrection as a unique event, so serious, the most restrictively used powers that DOJ possesses should be exercised here. Well, what’s to prevent a couple of years from now a Republican majority in the House designating whatever the current variant of Benghazi is saying, “Well, this is a unique standalone event, so we’re going to use this to enforce subpoenas.”

Joyce Vance:

There’s a part of me that says this, Preet, January 6th is so important, it’s so necessary to get to the truth here that DOJ really should weigh in on balance. And if the payback for that is down the road Democrats have to go and testify in front of Congress in a similar inquiry, well okay, let’s let people go and testify. What’s so bad about letting the American people hear a little bit of truth. But by the same token, we have to be thoughtful, there have to be people in the middle on both parties who are willing to keep this from just becoming a constant shooting match.

Preet Bharara:

Yeah, well, here’s the problem. And I try to put things in broader perspective when we talk about them because I think some of these themes and issues apply to more than one circumstance, and some of what you’re talking about also seems relevant to the debate about abolishing the filibuster for certain purposes. Because there’s always the principle, I think it’s one of Newton’s Laws, what goes around, comes around. And if you decide to take some action now, particularly if it’s done by a political branch, you might not be in power the next time that power can be used, and that’s happened with judges and the abolishment of the filibuster with respect to Supreme Court Justices, and people can argue about whether that was a good thing or a bad thing, but I tend to agree with you. And this is going to be an unsatisfactorily response to those people who think, putting aside DOJ involvement for a moment, there are people who think, “Well, it’s just…” I mean, this is the question I get more than any other, probably at the moment.

Preet Bharara:

How can it be that in a country where the rule of law is supposed to be the coin of the realm, you issue a subpoena to someone like Steve Bannon he can say F you and nothing happens. I mean, it just doesn’t make any sense to people. And this is not really an answer, but I will just point out to folks, that reasonable people understand that Steve Bannon should come and testify and calling him testify makes sense, given his involvement with respect to January 6th. But the House of representatives is a particularly political chamber, and if you figured out a way to give the House more inherent authority to enforce subpoenas and compel people to come testify, allow there to be a House of Representatives jail, and reasonable people can say, “Well, Steve Bannon’s to be subjected to that in these circumstances.”

Preet Bharara:

Parallel to what you were saying a moment ago, now imagine the House flips and it’s Devin Nunez in charge of some inquiry and he’s issuing unreasonable subpoenas and bad faith subpoenas right and left to various folks. Just understand that that power, that inherent imprisonment power can be used for political purposes the other way, which may be fine, as you say, what’s wrong with having people come testify, compelling them to testify under penalty of imprisonment and criminal prosecution also? But these powers you give to a political branch, when you think they’re on the side of good can also be abused and misused by the side of bad in the future, and I don’t know how people necessarily think about that.

Joyce Vance:

I think that’s a really fair point, and probably a lot of that has to do with why Congress hasn’t pursued the inherent contempt powers. I’m a little bit more comfortable when you’re talking about a process that involves the courts and perhaps even the insertion of DOJ making a decision about whether or not to charge in a criminal contempt case. When you’ve got multiple branches being involved, and there’s a little bit of a check on unrestrained power. And in that case, someone who refuses to testify has the option of proceeding with civil or criminal contempt proceedings or of going ahead and curing the contempt by testifying, in that setting I’m a little bit more comfortable that there’s less potential for abuse down the road. I’m not a fan of use of inherent contempt, I’m sure that we’ll get a lot of a reader email that wants to see that process used, but I’m not a fan.

Preet Bharara:

So there are a couple of things being sought by the January 6th Committee. Obviously, very importantly, they’re seeking testimony from Steve Bannon and many others as we’ve discussed before, but they’re also seeking documents. Now, the path to getting some documents, including communications, has been made a bit easier because those documents, or many of them, electronic communications are in the possession of the White House, they’re on White House servers, presumably, or they’re in the White House files. And the question of whether or not Trump can assert executive privilege against them is fairly settled. That privilege is asserted by, not in a particular president, but by the office of the presidency. And given who’s in power at the time, that’s the person who gets to decide. And that strikes some people as odd like, “Well, Trump was just the president, this relates to him. He, even though he’s no longer the president, should be able to assert executive privilege over these things.”

Preet Bharara:

And one way to think about it that makes it more clear that that’s a silly argument, is if you change the temporal dynamic and you say, well, suppose there was reason for there to be a new inquiry about the hostage crisis with Iran back in the late ’70s when Jimmy Carter was president, and there was a good faith basis for the public and for Congress to want to probe into that further because some new revelation had come to light. In no universe, I don’t think, would people think it was reasonable for Jimmy Carter, who God bless him, is still alive and kicking, that it would be okay for him to assert executive privilege as to communications from 40 years ago when he was president of the United States. The privilege belongs to the office and it is asserted or waived by the current occupant of that office. And so I think we’re going to get a lot of these documents, and even if we don’t immediately get testimony from some of the players in the Trump administration, I think the documents might be fairly interesting, don’t you think?

Joyce Vance:

I think that they will be, it’s where you always want to start in an investigation like this and getting access to them will be incredibly important. Trump can kick a little bit here. He can argue for a right to review. He can go to court. And ultimately that’s what everything he’s doing here involves, it involves the prospect of delaying long enough for Republicans to retake the House in the 2022 election and shut down the investigation. That seems to be his strategy across the board. That certainly argues in favor of a prompt release of these documents from the national archives, at least if we’re ever going to learn the truth.

Preet Bharara:

And by the way, I’m going to say once again, at the risk of boring people, for the third time, invoking this principle of the idea of some party in government taking an extraordinary action, because the thing that needs addressing was itself extraordinary. And here you have the White House Counsel, Dana Remus, who basically acknowledges that, generally speaking, presidents are very preservative of the privilege, even though it’s information and communications that occurred during the prior presidency or a prior presidency, they still like to assert the privilege. And we’ve seen that happened with respect to the Department of Justice on other issues that has made people upset.

Preet Bharara:

But here Dana Remus wrote to the archivist of the United States, “After my consultations with the Office of Legal Counsel at the Department of Justice, President Biden has determined that an assertion of executive privilege is not in the best interests of the United States and therefore is not justified as to any of the documents.” And she says that the reason for that in part is that the January 6th investigation by the house is “Unique and extraordinary.” Which basically means that the events of January 6th were unique and extraordinary, and so a unique and extraordinary response is arguably Meredith.

Joyce Vance:

It seems so strange to me that 10 months down the road we’ve forgotten what it was like to watch those events unfold on national television. And especially to watch the reaction of Republicans, Lindsey Graham saying I’m out. We all had a real visceral reaction in that moment, it seems like we’re owed the truth. And the real problem here is whether we can get it in time.

Preet Bharara:

Yeah, just so people understand, that decision by the current White House, doesn’t automatically allow for release of the documents, it triggers a window of about 30 days for the Trump folks to challenge the determination in a court before the National Archives releases them to the panel. We’ll see what happens with the court, but I expect we’re going to see some of those documents, many of those documents, and they will be somewhat revelatory, that’s my guess.

Joyce Vance:

I think somewhat revelatory is an understatement. Looking at the email traffic and text messages-

Preet Bharara:

Because you think these people were probably… They were not careful in the moment.

Joyce Vance:

Well, I think what will be the most interesting though, is if they were in fact being careful, seeing what slips through, right? Because you can’t be so careful that you screen it all out, especially when events start to unravel. I think we’re going to learn some really interesting things from the communications.

Preet Bharara:

That’s a good segue, Joyce, to talk about some of the other efforts to unwrap and unpack what happened on January 6th. Definitely more importantly, what’s going to happen in the future. Some people including Fiona Hill have been saying that January six was essentially a dress rehearsal for the future, and that Donald Trump and his supporters, Steve Bannon and others have figured out the ways that they can do a better job next time in stealing an election, and it’s very likely that Donald Trump will run again. The Senate Judiciary Committee chaired by Senator Durbin, put out a pretty significant report that reveals more details about all the ways in which Trump and others tried to upset the election, what do you make of all that?

Joyce Vance:

Something that really strikes me about this report, it’s an interim report, and they released it eight months into the investigation, even though their work wasn’t complete, this is the majority of the democratic report, because of what they call the gravity of the misconduct that they had uncovered to date. They felt like the American people couldn’t wait to see these preliminary results. It will not surprise you that the Republican minority issued a contrary report saying that the Democrats had overblown reports that Trump had tried to weaponize the Justice Department as a political weapon. But the findings made by the majority here are pretty remarkable.

Joyce Vance:

And what it boils down to is efforts by the former president to get DOJ’s leadership to endorse the big lie, to legitimize the big lie and to push the big lie. And to the point that you start out with, that what we saw on January 6th was just the precursor to a more successful attempted overturning and an election, what this report lays out in its six key findings talks about a real breakdown in the sort of barriers that have always existed between the White House and the Justice Department. Not just the notion that we became familiar with during the Mueller investigation, this notion that the White House should never interfere in an individual criminal case, which is of course not appropriate behavior for the White House. But in this situation, we had the white house trying to overtake all of DOJ’s capacities. For instance, forcing DOJ to investigate election fraud, something DOJ doesn’t do in the moment. There’s a longstanding policy that says that DOJ doesn’t interfere in the results of elections, isn’t in the business of naming winners of elections.

Joyce Vance:

But there’s pretty clear evidence in this interim report that that’s precisely what the Trump White House wanted DOJ to do, and that DOJ in fact took some steps, those directions with Bill Barr changing the policy regarding those sorts of fraud investigations and actively encouraging US attorneys across the country to engage in them. So I would ask you this question, Preet, Bill Barr leaves in the middle of all of this, there’s sort of a dividing line in this report in fact, that notes that Trump starts to pressure DOJ on a daily basis after Barr’s departure. I’ve never really thought it made a lot of sense when Bill Barr said that he was leaving to spend more time with his family just a couple days-

Preet Bharara:

It’s never the case.

Joyce Vance:

… before Christmas, right? I mean, it’s almost Christmas and the administration is almost over, so what’s going on here? And do you credit these findings? Was this a real effort to weaponize DOJ?

Preet Bharara:

Yeah, I do. I think so. And each additional revelation shows the lengths that Donald Trump and Mark Meadows and other people were prepared to go. There’s some revelations about the Former US Attorney in Atlanta, in Georgia, B.J. Pak, who we know from other reports was basically forced out because he wasn’t going to undertake an investigation of the Georgia results. Trump wanted him gone. He resigned, I’m not sure why he didn’t wait to be fired. But there are reports now from the Senate Judiciary Committee Investigation, that says that Trump went outside the line of succession to appoint as a replacement for US Attorney Pak, a person named Bobby Christine, because he believed that that new person, Christine, would do something about the election fraud claims. And you have example after example of what people were prepared to do. And if anywhere in that chain, including the person we’ve been talking about in prior episodes, Jeffrey Clark, who was not even that high ranking official at the Department of Justice who was trying to overturn the results in Georgia, but was defied by Bill Barr.

Preet Bharara:

Does it go back to your initial question? I think that at some point the heat got too hot, to coin a phrase, in the kitchen. And even people who are generally on board with Trump and generally on board with violating norms and generally on board with a politicization of a lot of different things, including the administration of justice at DOJ, which Barr is guilty of, and we’ve discussed that many times, that there are limits for some people, just like there’s a limit for Mike Pence and he had to talk to former Vice President Dan Quayle to understand that he couldn’t do the thing that Trump wanted him to do. It doesn’t make them noble or great or wonderful, it just puts them on a spectrum in a better place than Donald Trump.

Joyce Vance:

Yeah, I’d love to see Bill Barr testify publicly about what happened there. I think you make a good point that we shouldn’t be lionizing any of these folks at DOJ just because at the tail end they had the minimal decency to say that they would resign en masse if Trump replaced Jeff Rosen, who was then the acting Attorney General with Jeffrey Clark, who had been the Head of the Environment and Natural Resources Division at DOJ, was the acting head of the Civil Division. And contrary to all DOJ policy, participated on at least one occasion in a meeting at the White House without letting his bosses at DOJ know, and then came back with this concocted scheme to pursue the big lie. I think that there’s an important piece of context we can provide about this situation in the Atlanta US Attorney’s Office where B.J. Pak is told to resign, Atlanta is an extra-large office, don’t get me wrong, it’s not the Southern district of New York.

Preet Bharara:

That’s actually, folks, that’s actually a designation, a formal designation given to certain US attorney’s offices that are described and characterized by size.

Joyce Vance:

And so at least when Preet and I were in office, Atlanta was the smallest of the extra largest, but it still had over a hundred prosecutors handle highly sophisticated cases. It was an office where people were doing very serious work at a very high level. And not to denigrate the Savannah Office where Bobby Christine was the US Attorney, because it too is a very fine office, but it’s a smaller office, it tends to handle more localized sorts of crimes. Bobby Christine, the US Attorney there had a military background. He was perceived as being a very strong political supporter of President Trump. But the notion that you could take someone from a small office, who was by the way, still actively involved in running that office, and drop them into Atlanta and expect them to pick up and run with all of the sorts of cases that the Atlanta office had, that’s a little bit of a tip off that something illegitimate was going on here.

Joyce Vance:

I think it’s important to have that context, because this is just one small scenario in the middle of a much chain of events, but it shows that Trump was all along trying to work every angle to find any place where he could get some purchase into overturning the results of a state where Biden had won, and with every failed scheme, he grew a little bit more desperate. I think that’s the trajectory in this interim report, showing that as small baby steps failed, they got more desperate, ultimately with this scheme to replace Rosen and try to fully enlist DOJ.

Preet Bharara:

As a backward looking exercise, it’s important to understand what happened and how close we came to a terrible, terrible unlawful chaotic result. But more importantly, I think we should take stock of what it portends for the future. We’ve had this respite with Biden elected, returned to some normalcy, the former guy’s not on Twitter, but all signs point to a return, right? As I’ve said, somewhat controversially in my note a couple of weeks ago, I think there’s a chance, because there’s no legal prohibition, that Donald Trump becomes the Speaker of the House in 2022, as crazy and outlandish as that sounds. And certainly is going to run again for office in 2024, I think.

Preet Bharara:

And the lesson that you learn from all of these facts that you and I are unpacking in the show is that he now knows who to appoint next time. Think about the kinds of US Attorneys, think about the kind of Attorney General, think about the kinds of staff people he’s going to appoint. Bill Barr is not loyal enough. Jeff Sessions is not loyal enough. He’s going to find people like Jeff Clark. He’s going to find US attorneys like Bobby Christine, if he is the way you described him. And depending on what is going on in the Senate, Democrats will be powerless to stop those appointments if he becomes president again. And I know this is very shocking and disturbing to everyone to even talk about that scenario, but it is a scenario we should be talking about. And so when we do this excavation looking backward, to me the most important part of that is to understand the peril we’re in going forward.

Joyce Vance:

We’re about to start hearing cries that 2022 will be the most serious election, the most important election of our lives. And a lot of people will say, “Oh, they say that about every election.” 2022 is going to be the most important election of our lives.

Preet Bharara:

Which doesn’t mean it was not true when we said that about 2018, because I think 2018 was up until that point. I mean, just imagine what the world would look like if Democrats didn’t have the House, so all of this stuff is important. There’s another sort of philosophical/psychological question I want to ask you, get your reaction to before we go. And that is, people keep talking about how an attempted murder is just as bad and terrible and awful as a successful murder. And the criminal law, generally, as a principle, recognizes that, right? If I shoot at you and I hit you, that’s one thing, if I shoot at you and I miss you, that shouldn’t be different because my intent was the same. My blameworthiness was the same.

Preet Bharara:

And so the analogy goes, that’s also true of the attempted coup, right? And that Donald Trump included and the people around him should be judged as if they had actually succeeded in doing that thing, and there should be consequences, criminal or otherwise. But isn’t it true that the way human nature works, people pay more attention and are more freaked out by, and more sort of volubly demand justice and consequences and accountability when a crime succeeds rather than when it doesn’t succeed, even though the law in principle says that they should be treated the same? In practice, juries and the press and others, they seem not to take as seriously bad conduct that fails, even though the intent of the bad actor was the same, is that fair?

Joyce Vance:

Sure, I think it’s fair. People are always more concerned when there’s a dead body on the ground than when the victim’s able to get up and walk away, but that’s a dangerous way of evaluating what happened on January 6th. And it goes back to the comment that you made and that Fiona Hill and others have been emphasizing, this notion that the Trump people are learning how to build a better mouse trap. They’re learning how to complete a successful coup. If we don’t find a way to A, expose the truth and B, hold people accountable, then we’re really enabling them to walk back in and perhaps succeed in the future. So the psychology aside, this sort of notion of political restraint, not wanting to be perceived as political, which I think is right and fair and appropriate, but balancing that against the need to have accountability, the need to prevent future harms, we’re living in a precarious time. And I’m glad that we have smart people in the Justice Department and the White House, I hope that they will strike the balance in the right place.

Preet Bharara:

Amen, Joyce. And we’ll continue to cover all these stories. When we’re back here next week, I guess, it’s typical to say that I’ll be a year older, but I won’t be a year older, I’ll be a week older, so never mind.

Joyce Vance:

Well Preet, I hope you have a happy birthday tomorrow, and I hope that you’re thoroughly recovered in time for taping next Tuesday.

Preet Bharara:

I aim to be, but I can’t promise. Send us your questions to letters@CAFE.com, folks.

Joyce Vance:

We look forward to answering them.

Speaker 3:

That’s it for this week, CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. 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, Noah Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider Community.