• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down the news that former President Donald Trump exerted pressure on DOJ officials to declare the 2020 election “corrupt” and to overturn the results, as revealed in newly-released notes taken by former acting Deputy Attorney General Richard Donoghue during a phone call with Trump. They also discuss the first hearing held by the House select committee investigating the January 6th attack on the Capitol, and the Department of Justice’s refusal to defend Rep. Mo Brooks in a civil lawsuit brought by Rep. Eric Swalwell that accuses Brooks of inciting the riot. 

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; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

TRUMP ELECTION

18 U.S. Code §610 – Coercion of political activity

Acting DAG Richard Donoghue handwritten notes, 12/27/20

“Committee Obtains Key Evidence of President Trump’s Attempts to Overturn the 2020 Election,” House Committee on Oversight and Reform, 7/30/21

“Trump Pressed Justice Dept. to Declare Election Results Corrupt, Notes Show,” NYT, 7/30/21

JANUARY 6TH

DOJ letters to Trump Admin. Officials, 7/26/21

“Jan. 6 committee faces unprecedented choice of whether to call Republican lawmakers to testify,” WaPo, 7/31/21

“‘The physical violence we experienced was horrific and devastating’: Officers recount harrowing events of Capitol insurrection,” CNN, 7/27/21

“Unpacking the DOJ Letters: No ‘Executive Privilege’ for Trump-Era Witnesses on 2020 Election Machinations,” Just Security, 7/27/21

MO BROOKS

28 U.S. Code §2679 – Exclusiveness of remedy

Eric Swalwell v. Mo Brooks et al., U.S. District Court for the District of Columbia, United States’ response to defendant Mo Brooks’s petition to certify he was acting within the scope of his office or employment, 7/27/21

“Justice Department declines to defend Rep. Mo Brooks against Jan. 6 incitement lawsuit,” Politico, 7/27/21

“Expert Backgrounder: The Westfall Act and Representative Brooks’s Speech,” Just Security, 7/23/21

COMIC BOOK COMPLAINT

“​​This 13-page comic book is actually a lawsuit that will be heard in a Harris County court,” Houston Chronicle, 7/1/21

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? I was in the South again.

Joyce Vance:

Well, Preet, we’re going to make a southerner out of you at this rate, right? New Orleans and Nashville?

Preet Bharara:

Yeah. When am I coming to Birmingham?

Joyce Vance:

Anytime. You really should.

Preet Bharara:

When am I invited to Birmingham?

Joyce Vance:

As soon as we beat COVID, you should come down here and we’ll podcast and eat barbecue.

Preet Bharara:

All right. I love good food and the great city of Nashville.

Joyce Vance:

Well, make us all jealous.

Preet Bharara:

Hot chicken. I had some hot chicken. Yeah.

Joyce Vance:

Did you go to Hattie B’s?

Preet Bharara:

It was Hattie B’s. I tweeted a picture of me with hot chicken. Well, you didn’t tell me and others didn’t tell me was about the portions. I thought I was ordering for just me and my son and it was enough food for seven people. At least, seven-

Joyce Vance:

Welcome to the South.

Preet Bharara:

Yeah, it’s a lot of food.

Joyce Vance:

Did you get sides or just chicken?

Preet Bharara:

Maybe I did something wrong. Because it was really late in the evening after we’ve been doing other things for a while. But I got hot chicken. And, I believe, my side was more hot chicken. I said to myself, “What is this other thing in the little basket?” And it was another thing of hot chicken except in a roll. Is it possible that a side of chicken comes with chicken?

Joyce Vance:

You can get a side of chicken with chicken. Although, occasionally, I might get something like coleslaw dripping with mayonnaise. There’s nothing like Hattie B’s though. It’s wonderful chicken.

Preet Bharara:

So, shall we talk about some news?

Joyce Vance:

We should talk about news. There’s a lot of it this week.

Preet Bharara:

There’s some news from the past. I guess, we’re now months past Donald Trump having left office. And what I used to refer to as what we could expect as an excavation continues to pace and it’s part of a pattern with Trump. But, I think, the examples get more and more egregious. They don’t get the same attention because he’s not in office and, I guess, people are not surprised anymore. But this business about Donald Trump calling the acting Attorney General Jeffrey Rosen in the final days of the presidency, day after day after day. And we’ll read some of the quotes. Basically, begging him to say that there was something wrong with the election and to help undo the election is, in my mind, and I’m wondering what you think, maybe the most egregious conduct of his presidency given what was at stake.

Joyce Vance:

I think that that’s right. I have seen people on social media saying, “Well, yeah, but what was he going to do?” He was calling Rosen the acting Attorney General but nothing came of it. I don’t think that that’s the right way to look at this. What Trump wanted out of Rosen, in essence, was an announcement that the election was corrupt, perhaps, that DOJ was investigating it. So that, Trump and what he called his allies in Congress or what the note say were his allies in Congress, could use that an allegation in an effort to overturn the election, perhaps to keep Congress on January 6th from refusing to certify and throwing it into that really strange procedure where the House would decide the election and Trump would win. This is serious stuff.

Preet Bharara:

So, we should take a step back for a moment and explain to people who are not aware that part of the reason we know what was said by Donald Trump to the acting Attorney General Jeffrey Rosen is that, the Acting Deputy Attorney General Richard Donoghue, was taking what looks like copious notes. And he has, in his notes, quotes attributable to Donald Trump which I trust and I credit. And one of those notes says Trump said the following quote, “Just say that the election was corrupt and leave the rest to me”, and quote and to congressional allies, according to the notes.

Preet Bharara:

That, to me, is a reminder of what he did in Ukraine. Remember, in Ukraine, what Trump kept asking for was an announcement of an investigation into Joe Biden and Hunter Biden. Not get to the bottom of it, find the truth, get a conviction, bring an actual prosecution. But basically, he was saying a version of this. “You know what, Ukraine? Just say that Hunter Biden and Joe Biden are under investigation and leave the rest to me.” Right?

Preet Bharara:

He thinks of investigations as weapons to use and it doesn’t matter, necessarily, for his purposes so much that, at least, in the short term, that there’s some actual action. He wants the inquiry. He wants the announcement made.

Joyce Vance:

He learned that lesson in 2016 when Jim Comey, infamously, on the eve of the election reopened the notion that there was some investigation the FBI was conducting. There was absolutely nothing to it. It was meritless and he subsequently came out and corrected himself. But some folks believe that that swung the tide in favor of Trump. Trump certainly picked up on that and, I think, the key to what you’re saying, Preet, is this notion that Trump doesn’t care if there’s any merit to these investigations. He’s not worried about the facts, he’s just worried about winning.

Preet Bharara:

Yeah. I just can’t get over that line. “Just say that the election was corrupt and leave the rest to me”, because what he understands is media and social media … Remember, he was still on Twitter at this point and he understands his base. One question I have and I don’t mean to sound small on this. I want to get your impression of the conduct of the lawyers in the case, the acting Attorney General and the Acting Deputy Attorney General, and how they resisted. Does that make them heroes or does that make them minimally responsible and honorable in the face of repeated intimidation attempts by the president?

Preet Bharara:

But I’ve still never understood and this is, maybe, something that’s parochial. But I’ve never understood why Richard Donoghue, who I know and I thought was a good guy. He was a chief of the Criminal Division in the Eastern District of New York for a period when I was a US attorney in SDNY. But he left the position of US Attorney in the Eastern District of New York to take a lesser position, that main justice in DC. I’ve never understood why that happened. Does that matter?

Joyce Vance:

So, I’ll answer this way. Of course, there could be more that we don’t know, I’m willing to put a pin in that. I don’t understand, at least, at the point when January 6th happens and there’s an impeachment inquiry why these two DOJ lawyers don’t come forward and share what they know. This is outrageous conduct that could, quite frankly, have had a lot of influence on those events because it demonstrates, as our friend Dan Goldman has said on Twitter, it demonstrates that Trump had criminal intent that he had a corrupt intent in all of these proceedings.

Joyce Vance:

If you look at just any one moment in time, how he behaved on January 6, you might believe that’s the case. When you look at this entire timeline and this barrage of calls to Rosen, I almost wonder if Rosen didn’t reach a point where he began taping these phone calls just for his own self-protection. The conduct is horrible. They should have come forward.

Preet Bharara:

Wait a minute, are you saying, “Lordy, there are tapes?”

Joyce Vance:

I wonder if there are. DC is what’s called a one-party consent jurisdiction. That means one party can consent to taping a phone call. But there are a lot of issues here when the other person on the phone is the President of the United States and you’re the Attorney General.

Preet Bharara:

We’ve been down this road before and I’ve talked about him.

Joyce Vance:

With Rod Rosenstein.

Preet Bharara:

And myself. This, again, this is like the 400th time in the last four and a half years where I felt vindicated and not taking the call from Donald Trump back in March of 2017. And you see in case after case after case, nothing good comes of that, especially when it’s outside the chain or it’s with respect to a particular enforcement matter. There’s no doubt in my mind, and this is further proof of that. That, at some point, Trump would have asked me, the US Attorney in SDNY to do something untoward or to something inappropriate because he’s done it again and again and again. With Jim Comey, with Jeff Sessions, with election officials in Georgia and, now, we see with the acting Attorney General Jeffrey Rosen. He probably did it with Bill Barr. Again and again and again.

Preet Bharara:

But the one thing you say about tapes, we should point out, the reason we know about this stuff is that the department itself, now under new leadership, turned over these notes to the House of Representatives’ Government Oversight Committee. And, I think, it’ll also be shared with the Senate Judiciary Committee. And that’s significant for a number of reasons. They made a determination that they were not going to assert executive privilege or any other kind of privilege over these notes which you sometimes expect institutionally, and Garland has shown his proclivity for this, that they would do that institutionally to protect such disclosures in the future and to protect their own internal communications and internal note taking, et cetera.

Preet Bharara:

They seem to have come to the conclusion that this stuff was outside of the President’s role as president and was undertaken in his personal capacity as a candidate for president and that removes its protection. How significant is that?

Joyce Vance:

So, I think it’s really significant because, as we know, the Office of White House Counsel, the Office of Legal Counsel and DOJ, these folks take protecting their institutions very seriously. And even, as you point out, Merrick Garland has been very clear that he’s interested in restoring DOJ and in holding the institution above the political fray. So, it says a lot. It says a lot about what they believe the seriousness of this conduct is that they’ve disclosed the notes.

Joyce Vance:

One interesting aspect, though, and I wonder what you think about this, Preet. I’ve really just been thinking about it for the last day or so. One interesting aspect of letting former Trump era officials testify is the Ollie North problem, right? Once you testify about something in a compelled situation like that, you can’t be prosecuted. And for most of these folks, that’s not really an issue. I mean, Rosen and Donoghue, whatever you may think of their decision not to come forward certainly weren’t complicit. But, at least, in the case of one of the people, who they’ve now given permission to testify to, Jeffrey Bossert Clark, there’s an indication that he had conversations with Trump about pursuing the big lie using the Justice Department. So, you can read those signals a couple of different ways.

Preet Bharara:

Yeah, we can get to the issue of whether or not anybody will be criminally prosecuted for this particular set of events and conversations. Certainly, as you say, the Acting Attorney General and the Acting Deputy Attorney General, I don’t think are in any criminal jeopardy. I don’t know that the President is either. I was asked the question recently, would this be an impeachable offense and, I think, if circumstances were different and Trump were still in office and he hadn’t already been unsuccessfully tried in the Senate on two different impeachments, this would absolutely be impeachment material. Using your Justice Department to try to win an election is just beyond the pale.

Preet Bharara:

And we can talk about potential criminal exposure. I don’t really see it here. But, more importantly, I don’t really see an appetite for bringing a bit of an aggressive case, legally, on these facts. And maybe they’re more facts that we don’t know about. But on these facts, under a criminal statute against the former president, the DOJ doesn’t seem to be in that kind of mood.

Preet Bharara:

But with respect to Jeff Clark, and that’s one of the other things that was going on at the same time. Bill Barr leaves for reasons we can speculate on. Probably one of those reasons is, it’s getting really crazy and I’m going to be asked to do stuff that I don’t want to do. So, I’m going to get the hell out to dodge. And so, he gets the hell out to dodge

Joyce Vance:

Such a profile in courage.

Preet Bharara:

And there was a move to try to put Jeff Clark, who you mentioned, as a senior official. A civil lawyer at the Justice Department in charge because he was going to be willing to play ball. So, somebody is willing to play ball, some people want to get a dodge and some people, I guess, resisted the best they could.

Preet Bharara:

And, by the way, these are not the only things that were said in those conversations. There’s also the conversation reflected in the notes. Trump was not only calling for, basically, a statement that the election was a fraud. But he also told those officials quote, “Figure out what to do”, with Hunter Biden. And he says, “People will criticize the DOJ if he’s not investigated for it.”

Preet Bharara:

So, what does all this have to do with the proper role of the Justice Department? Now, I think you have a view and you’ve been taking a look at a particular statute. It’s Section 610 of Title 18. What does that make illegal?

Joyce Vance:

Well, let me start by backing up a little bit and saying I agree with you that we have not seen a lot of appetite from this Justice Department to prosecute. But, I think, this conduct is so serious that the minimum DOJ needs to open a very serious investigation. Looking at Trump’s conduct, not being afraid to follow evidence, perhaps, if other investigations develop evidence regarding his behavior.

Preet Bharara:

Can I pause you there for a second, Joyce?

Joyce Vance:

Yeah.

Preet Bharara:

So, some of this information we’re learning, because in the ordinary course, the House Oversight Committee has been asking for certain documents and DOJ has made a determination, as we discussed a minute ago, that some of these very sensational notes should be turned over. There’s no protection, there’s no privilege and so they’ve been turned over. Do you believe that as they’re turning these documents over, they are just being a conveyor of information to other bodies like the Congress? Or, do you think, as we speak, DOJ is also doing its own internal review and looking at other documents and notes and communications that may be privileged and that may not have been asked for or that may not have been turned over because it’s the right thing to do or not?

Joyce Vance:

I don’t know the answer, obviously. But, I think, that there’s sufficient predication for an investigation and I suspect that they are carefully reviewing everything. My hope would be that they don’t do anything, particularly in connection with the congressional investigation, that would foreclose prosecution if they develop evidence down the road.

Joyce Vance:

We’ve all lived through this and, sometimes, when you live through history it’s hard to fully appreciate it. But we have lived through a moment where a sitting president of the United States literally tried to steal an election, tried to do what he accused Joe Biden of and has shamelessly lied with assistance from who knows how many political figures. This is the sort of thing that if you’re ever going to charge some of the most serious crimes in the Criminal Code, this is the moment to do it. 610, the statute that you asked me about, may not be the most serious crime in the Criminal Code. But it’s certainly important to look at in this context because it criminalizes the coercion of political activity. Can I be nerdy for a minute and just read the statute or is that too boring?

Preet Bharara:

No, man. Read it.

Joyce Vance:

Here’s what it says. “It shall be unlawful for any person to intimidate, threaten, command or coerce, or attempt to intimidate, threaten, command or coerce any employee of the federal government, blah, blah, blah, some definitions to engage in or not engage in”, and here’s the key term, “Any political activity.”

Joyce Vance:

The statute does a little bit of definitional work. But it says that, “Political activity includes but is not limited to voting or refusing to vote for any candidate or measure in any election, making or refusing to make a political contribution working on behalf of a candidate.”

Joyce Vance:

So, when you think about it, this term political activity, which is limitless in the statute, we need to know what that means and the statute doesn’t define it. Trump’s conduct certainly seems to be much greater go far beyond anything that the statute contemplates, right? Voting or refusing to vote for a candidate. Here we’ve got somebody who’s trying to mess with the results of an election.

Preet Bharara:

Right. And the language is interesting, right? Because I don’t know that I ever charged it. I think we talked about it and you’re not sure that you ever charged it. It doesn’t come up that often. But my sense is, the Hartland case is if you have a supervisor and a government agency at the EPA, or US Attorney, for that matter, and I put pressure on underlings, on subordinates to vote for Obama or to vote for Biden or vote for whoever. Or, I put pressure on them to go to a fundraiser and they’re federal employees and I’m their superior, that’s the kind of thing that happens from time to time. And that’s the kind of thing, in part, that the statute prohibits, right? That’s a kind of garden variety BS that people engage in.

Preet Bharara:

But if you look at the particular things that you mentioned in the list, as a technical matter, Trump was not trying to get the Attorney General to vote or not vote, to refuse or not refuse to make a political contribution. The closest, I guess, you come is to this last item, intimidate him into working or refusing to work on behalf of a candidate. So, I guess the argument would be that these intimidating phone calls, and they certainly were intimidating and commanding and, perhaps, coercive was trying to get Jeffrey Rosen to work on behalf of a candidate, namely, Donald Trump himself.

Joyce Vance:

I’m actually not sure I agree with you there.

Preet Bharara:

Okay.

Joyce Vance:

I would agree with you-

Preet Bharara:

You don’t agree with my police work there?

Joyce Vance:

Well, that’s where I started. Let me tell you where I ended up.

Preet Bharara:

That was a Fargo reference, by the way, just so you know.

Joyce Vance:

I’m sorry, I missed your Fargo reference. The language in the statute that, I think, changes your analysis is this language where it offers these examples that you talked about. But it says that political activity, which is what the person can’t unlawfully try to intimidate or threaten you into engaging in, it includes but it’s not limited to those examples.

Preet Bharara:

The famous non-exhaustive list.

Joyce Vance:

Yeah. We have to think about what is political activity and it’s not defined here. But here’s something that I found that’s pretty interesting. In 1976, one of the companion statute, 601, it’s part of this same series of crimes and it talks about depriving people of employment or other benefits for political contributions. It was amended. And, when it was amended, they pointed out that they replaced the term, quote, “political activity”, with more precise terms and definitions.

Joyce Vance:

They wanted it to have more limited meaning but they left 610 untouched which suggests, to me, that it should retain a broad meaning. And, certainly, for purposes of Hatch Act and the advice that’s given to folks when they’re talking about what is and isn’t protected by the Hatch Act, which prohibits federal employees from engaging in political activity to some degree, that always includes this notion of using your official authority or influence to interfere with an election. That’s what Trump did here.

Joyce Vance:

I think that this is Hartland 610 conduct. The thing is, it’s so unbelievable. It’s so incredible. No president has ever done this. That doesn’t mean that it isn’t and shouldn’t be treated like the crime that I think it is.

Preet Bharara:

No, that’s a decent argument. The technical defense would be the president was asking the top lawyers the Justice Department to do their job which they would argue, I presume, is not political activity. Part of their job is to look at fraud, part of their job is to prosecute crimes and open up investigations when there’s smoke and there are red flags, which the president’s lawyers would say, “We, in good faith, believe that there was for all the reasons that have been rejected in courts.” But you could say, “No, there’s a good faith belief that there was something wrong with the election. And so, who is at my disposal to take a look at those things?”

Preet Bharara:

In the same way I would say if a house burned down, check to see if it was an arson. If someone was found dead, check to see if it was a homicide. There seems to be all these irregularities. I don’t agree with them, but this is the argument. There are all these irregularities in the election. Take a look. Obviously, that argument is undermined by a lot of the points that you and I have made and that you would make because it doesn’t look like he was asking them to, in good faith, take a look at something that was malfeasance, as evidenced by that phrase I keep repeating. “Just say that the election was corrupt and leave the rest to me.” And the argument would have to be, given the nature of the language used, he was asking for political activity, not normal legal within their scope, conduct.

Joyce Vance:

But I think the context makes it clear. And I’m not suggesting that DOJ lawyers should be ready to indict. I think that they should be engaging in very robust investigation. It’s the context of that statement that really gets to me, Preet. The statement “just say the election was corrupt”, because Donoghue, in advance of that, is saying that they’ve investigated and that the voter fraud claims have been disproven. And Trump’s response is, “Well, who cares? Just say it was corrupt and I’ll do the rest.”

Preet Bharara:

Yes. Yes, I was trying to put on a good faith argument for the president and his lawyers, but it’s hard to do because it’s not…

Joyce Vance:

There isn’t one.

Preet Bharara:

And, by the way, the big problem in all this is, if there’s not going to be a prosecution by DOJ, the DOJ is also in possession of other information that’s not been handed over to the House Oversight Committee that paint a picture of all the bad things that Trump did in the final days in trying to weaponize the department and overturn the election and steal it. Will that ever see the light of day? Because the department is not in the habit of doing reports and reviews and putting them out to the public. They either prosecute or not. So, do you have some concern that there’s a lot of other information that’s important for the country to know and for Congress to know and we won’t?

Joyce Vance:

That may be one reason that we’ve seen DOJ take this unusual position of turning material over. This is a difficult situation for Merrick Garland who seeks to restore public confidence in DOJ. Everybody knows that this situation with Trump is the gorilla in the room, it can’t be ignored. At some point, I believe, the Attorney General will face the situation if charges are not brought where that has to be explained to the American people and they’re entitled to understand why charges have not been brought. That is really unusual.

Joyce Vance:

The most that I’ve ever done in a case with making the decision where a political candidate was involved to issue a very terse press release that said that investigation, which was publicly known and acknowledged by the candidate, that investigation had been concluded and that we were not filing charges. And, that, I think, is about the outer limit of what DOJ usually does. Here, they’re going to have to do something unique and here’s the reason. If the goal is to restore public confidence in DOJ, then people will need to understand what happens here.

Preet Bharara:

Yeah. No, I hear you. And that’s the debate between saying nothing like the Bob Mueller approach. Or, saying too much which got Jim Comey in trouble.

Joyce Vance:

Exactly. I think Merrick Garland is going to have to play Goldilocks here.

Preet Bharara:

Although my sense is he’s a little bit more in the Mueller camp than in the Comey camp. So, I don’t know how forthcoming they’re going to be. Maybe this is one of those things that’s on Lisa Monaco’s plate. The ever-bulging plate of the Deputy Attorney General, who I’m sure is working 24/7.

Joyce Vance:

I suppose one way of skirting this is letting it all come out in an inspector general report and that might be one way that DOJ could speak.

Preet Bharara:

They’ll take a long time. But look, as you point out, I think on the merits and, also, for larger transparency purposes, the handing over of this information to the House Oversight Committee is not a small thing. And some of these notes are quite devastating and I bet there’s a lot more. And not just from the end of the presidency but other times as well.

Preet Bharara:

I would love to see a meticulous, rigorous report on all the umpteenth times that Trump or Meadows … By the way, we haven’t even talked about Mark Meadows and we don’t have to. But it wasn’t just Trump, it was other people who were violating even their own contact policies between the White House and the Justice Department to try to get the election won. It would be good to see all that. A full accounting of it. Whether it’s done by the House Oversight Committee, the Senate Judiciary Committee, the Inspector General or someone else, I think it’s important for posterity and support and for fixing the department going forward.

Joyce Vance:

And that’s sufficient for us. But for people who aren’t prosecutors, who don’t always understand that criminal law is statutory law, right? You can’t just look at conduct and say, “That’s horrible, lock him up.” You have to actually find a crime that’s on the books, figure out what the elements of that crime are and make sure you’ve got the evidence to prove all of them. I think for the public in general, they need a more granular explanation of why these horrific facts did not lead to prosecution if, in fact, that’s where DOJ ends up.

Preet Bharara:

Yeah, that’s right. So, on that note, we’ll see what happens there. But, somewhat relatedly, because it goes to the big lie which was the driving force of a lot of this bad stuff that happened in the country. There is now a select committee organized by Speaker of the House Nancy Pelosi. It has a number of Democrats, it has two Republicans, Liz Cheney and Adam Kinzinger, and they had their first hearing last week. I’ve already spoken about this a little bit on Stay Tuned last week, about how that hearing was conducted. I thought the members did a good job of getting out of the way of the four Capitol Police officers who told their stories. And, I think, made clear once again, what the stakes were. And this was not a peaceful gathering of tourists at the Capitol. Before we get in some of the details on how the investigation will unfold and what subpoenas will be flying and who has to obey them or not obey them, what was your initial impression of that hearing?

Joyce Vance:

I thought the hearing was powerful and forceful and the witnesses were really compelling. The right place to start. But what I thought was wonderful and refreshing about the hearing was the absence of political grandstanding.

Preet Bharara:

That’s because Jim Jordan wasn’t on it.

Joyce Vance:

Yes, it is. And, look, I don’t want to be one sided about that. Because Democrats often politically grandstand, too, right? Everybody needs a soundbite.

Preet Bharara:

We were talking about hot chicken earlier. Wasn’t there a democratic congressman who had some hearing-

Joyce Vance:

Who was it? Was it Steve Cohen from Tennessee?

Preet Bharara:

I believe it was Steve Cohen from Tennessee, which I now appreciate and respect.

Joyce Vance:

Yeah.

Preet Bharara:

Having had a wonderful time in the state of Tennessee. But I think you have your chicken in Hattie B’s, you don’t bring your chicken to a hearing.

Joyce Vance:

Those are words to live by for future legislators.

Preet Bharara:

That’s going to be on my epitaph. He ate chicken at Hattie B’s, didn’t bring chicken to hearings.

Joyce Vance:

It was important. Kidding aside, this absence of grandstanding was really important because we need to know the facts of January 6. We need to have confidence that those facts are just being followed to determine where they lead as opposed to being put to some political purpose. That is a tough road to hoe in a country where there’s so much suspicion and where the political divide is so deep. But I believe that there are people in the country who would like to see the evidence. So, good for this committee for getting off to the right start.

Preet Bharara:

More substantively, there’s a question of who the salient witnesses are. And part of the political problem in even putting together the select committee and before that, the voting down of a bipartisan independent commission has been, I think, this business of which members of Congress may themselves be witnesses like Kevin McCarthy and others. People who were in contact with Donald Trump on that day, on January 6, before and after the insurrection, which will give insight into Donald Trump’s state of mind, what kinds of briefings they got, what kind of encouragement they may have given. We’ll get, in a few minutes, to Mo Brooks, a member of Congress who’s actually, literally, been sued by another member of Congress for inciting violence on January 6th. It makes things a bit complicated.

Preet Bharara:

And so, in the ordinary course, if you’re doing a proper criminal inquiry via DA’s office or US attorney’s office, you want to make sure that you talk to all the right witnesses. Some of those, as we say, percipient witnesses are actually fellow congresspeople of the congresspeople who are leading the select committee. And, I suppose, you could issue a subpoena. Do they have to obey a subpoena from a fellow congressman?

Joyce Vance:

It’s an interesting question. And you sat and worked in the Senate for some years, I wonder if you ever saw a situation where there was an involuntary appearance for testimony by a member of Congress. I suspect not. So, this is not the Trump administration and, I suppose, the question here is, if Congress issues a subpoena, and a member of Congress declines to comply with it, would DOJ bring some sort of a contempt proceeding to enforce the subpoena?

Preet Bharara:

No way. I just don’t see it.

Joyce Vance:

It’s unlikely as well.

Preet Bharara:

I mean, DOJ doesn’t bring contempt proceedings, generally speaking, in these contexts, even when it’s not a sitting member of Congress, which adds a layer of complexity and sensitivity. Usually, members of Congress come and testify voluntarily in favor of some bill. That I’ve seen. And, sometimes, yeah, I guess, it’s testimony when they introduce a nominee from their home state, which is more symbolic and for optics. Sometimes they will testify in connection with some ethics issue that relates to them.

Preet Bharara:

But this kind of thing, I think experts agree, is unprecedented. And, I think, there are members of the Congress themselves, I think Adam Schiff has said this, that there needs to be a little more work and research done on the history of such a thing to see the propriety of issuing them, the ways you can enforce the subpoena. As we’ve discussed many times on this program and on Stay Tuned, there’s not a lot of enforcement mechanism. There’s no congressional jail to throw people in and there’s no procedure by which the Sergeant at Arms goes out and puts cuffs on someone, much less put cuffs on someone in the body that they’re under oath to protect.

Preet Bharara:

So, it’s pretty bizarre scenario. They can issue a subpoena, none of these members of Congress are going to acknowledge the subpoena and come and testify. That’s a given. So, you jump right ahead, all ready, right off the bat, to the issue of enforcement. And, I think, that’s a very difficult problem.

Joyce Vance:

I agree with that. I just think it’s unlikely that, maybe, in some crazy … I don’t want to completely foreclose it. Maybe if there’s a very unusual situation, we might see something unprecedented happen because this whole situation is unprecedented. I think it’s really unlikely. And, that means it comes down to, as it almost always does in the Congress, whether there’s some perceived political consequence of failing to testify that would be serious enough to convince people to testify. And, frankly, in this environment, I don’t see that either.

Preet Bharara:

Well, there’s another group of witnesses that’s a little bit less complicated. And those are former Trump officials.

Joyce Vance:

DOJ has now said, and this is not in regards, by the way, to this select committee. This is for House Oversight and Senate Judiciary proceedings, as I understand it. But it has identified six former DOJ officials, including the acting Attorney General Rosen but, also, including the US Attorney in Atlanta, B.J. Pak, who, very abruptly, resigned from his office amidst rumors that there was pressure from the White House for a voter fraud investigation to be conducted in Fulton County.

Joyce Vance:

So, these folks can now go testify, there’s no reason to believe, I don’t think, that DOJ wouldn’t reach the same result regarding their testimony to the select committee.

Preet Bharara:

Yeah, it’s just not clear that the select committee has asked for testimony from these people. But I can’t imagine why they would not.

Joyce Vance:

I think that’s fair. There are a lot of people. Just without thinking very hard, there are a lot of people who you would want to hear from. Do you think the select committee, are there restraints on how many witnesses it can feasibly call? Can it do an all hands on deck thing like we do in a criminal investigation?

Preet Bharara:

Yeah, I don’t see why not. Look, there’s going to be, at some point, the clock. I guess the clock is already ticking. But it’s going to be ticking in a very serious way once the calendar gets to 2022. And a foundation has already been laid to attack the proceedings as political by Kevin McCarthy and others and next year is a very important midterm election year. And the closer and closer you get to that election without having finality and closure to the select committee, the more those accusations will fly.

Preet Bharara:

Now, whether they matter, I don’t know. Whether or not they can be withstood remains to be seen. But you have to balance on the one hand the need to be thorough and meticulous and rigorous and expansive with the need to get it done in a way that the people will respect and it doesn’t look like you’re trying to drag it into the midterms. And that’s a tough balance.

Joyce Vance:

Well, Preet, that’s a good segue to talk about Mo Brooks, the Alabama representative, not my representative, who you had previously referenced. Because last week, DOJ decided it would not defend Mo Brooks in a civil lawsuit that was brought by his fellow member of Congress, Eric Swalwell. And, that lawsuit, it’s a civil case, obviously, not a criminal prosecution. But it says that Trump and some co-defendants, Mo Brooks, Rudy Giuliani and others, were involved in inciting Trump supporters to overrun the Capitol. And Swalwell says that he and others suffered damages as a result of their conduct. So, he’s filed this lawsuit.

Joyce Vance:

And Mo Brooks did what every federal employee does when they get sued. There’s pretty good law out there, by the way, that says that for these purposes, members of Congress or federal employees. Mo asked the federal government to step into his shoes and represent him. And that’s a pretty interesting process because of the Westfall Act and sovereign immunity. Did you ever encounter that when you had cases involving federal employees?

Preet Bharara:

Yeah. Sometimes there are cases involving VA doctors, as we discussed. Sometimes there are cases involving assistant US attorneys and, sometimes, they are cases involving the US Attorney himself or herself. And, in those cases, as you know and as we’ve discussed before, there has to be a representation made by a person of sufficient seniority and authority that the conduct undertaken, that’s the basis of the tort suit, the lawsuit, was within the scope of that federal employee’s job. And that’s the central issue here.

Preet Bharara:

As you point out, the first question is, is the defendant a federal employee for these purposes? Lots of law, as you point out, that says members of Congress are. Separate question when we get to Donald Trump and related matters in which he’s trying to get represented by the Justice Department in connection with his defamation suit by E. Jean Carroll, who has accused Donald Trump of raping her some years ago. And he’s denied it and said some nasty things about her.

Preet Bharara:

There’s some open question about whether or not the President is an employee but, here, it’s clear. And, I think, the interesting part of the analysis here, as it is in all cases, but it’s a different set of facts than you normally see, is whether the statements that Mo Brooks made on January 6th, were part of his duties as a member of Congress. Another way the law puts it is, was he doing the thing that he was hired to do, right? Or was he doing something else in his personal capacity? And, as we saw, with respect to those notes as a parallel here in all the topics you and I’ve been discussing, as we saw when the Department of Justice turned over those notes of the Acting Deputy Attorney General, here, DOJ made the determination that the statements made at the rally was not a congressional duty but was, in fact, electioneering or campaign activity. And things that you do in your campaign to try to get elected or get re-elected or get someone else elected, they found isn’t within the sphere of protection under the Westfall Act. Is that fair?

Joyce Vance:

I think that’s right. It seems like a very important distinction. Because when you’re making these decisions about scope, you’re looking a little bit less at the actual conduct the employee engages in and thinking about the type of conduct. Is this something that this employee has been hired to do? For instance, if you’ve got a mailman, while driving the mail truck and making deliveries with it, that’s part of their hired conduct. And so, you look at stuff that occurs in the course of making deliveries as part of the scope of their employment. The fact that the Office of Legal Counsel drew this really bright line here and said, electioneering conduct, is bad for Mo Brooks, bad for other co-defendants. We should point out, though, that Brooks is not out of options here. And he could, in fact, ask a court to take a second look at this and to pass on whether the Office of Legal Counsel got it right.

Preet Bharara:

Look, it might seem peculiar to some people. Put aside whether you like Mo Brooks or whether you think that the things that happened on January 6th are terrible or not, this is an issue that comes up for Republican congressmen and Democratic congressmen and members of administrations of both parties. And, it might seem a little weird to some folks to say, “Well, we understand it’s a pragmatic matter that one thing that a member of Congress does, is run for reelection.” It’s not just to vote. It’s not just to make speeches on the House floor or the Senate floor. And it’s naive, one could suggest, to say that you draw this distinction because, virtually, everyone runs for re-election. It’s a political job, not just a policy job. And so, if you’re doing things in connection with the ordinary conduct of running for re-election or supporting a member of your own party, which is, basically part of, you could argue a congressman’s job, why shouldn’t that be protected too? But that’s not what I think the law says and that’s not the position that the DOJ took.

Joyce Vance:

And Brooks tried to take that position and DOJ said something that I think is important here. His argument was, “Well, whole bunch of my constituents wanted me to do this. So, I was just doing my constituents business. So, 64%, supported this.” DOJ said that the logic that Brooks tried to use here, I think it was generous to call it logic, but said that it went too far and it proved too much. Because if they accepted Brooks’ argument, that would mean that anything that a member of Congress or a government employee did was covered. And, here, they said, “No, purely electioneering activity and it just doesn’t qualify as within the scope of the job he was hired to do.” That’s how you get the job. That’s the application for the job process. That’s not performance of the job’s duties itself.

Preet Bharara:

Yeah. And we should point out, by the way, that DOJ has taken no position on the merits of Eric Swalwell’s suit which, for various reasons, maybe quite uphill. And it’s a bit aggressive and an interesting. They’re just opining on whether or not under the Westfall Act that you and I have discussed, Mo Brooks is entitled to have the United States substituted in as a defendant and whether he’s entitled to representation by the government. And they’re saying he’s not.

Joyce Vance:

That’s right. And Swalwell’s suit will be an uphill battle. It’s novel legal theories. But the important thing for that lawsuit is that if Mo Brooks had been successful here, it would have been the death of the lawsuit, at least, as to Mo Brooks. Because the Westfall Act intersects with sovereign immunity in such a way that once the government subs in as the defendant, it’s often the death of that lawsuit. So, this is, I think, unbalanced, good news for the prospect of civil discovery in this case.

Joyce Vance:

Preet, I know that you’re very serious as a lawyer and you took your responsibilities as the US Attorney quite seriously. Did you ever have a moment where you were tempted to indulge in a little bit of humor and pleadings in a lawsuit?

Preet Bharara:

I don’t think so. Not as US Attorney. Maybe in private practice a little bit, but sense of humor is not the hallmark of the Department of Justice in formal pleadings. No.

Joyce Vance:

Well, there’s a bookstore called Third Planet in Houston and they took a slightly different approach going to some lengths to illustrate the merits of their lawsuit. And, I mean, illustrate literally because what happened in this case was that they filed a lawsuit against the hotel next door to them, the Crowne Plaza, and the suit details multiple instances where hotel guests threw and I’m quoting here, “A barrage of projectiles from their hotel balcony and damaged Third Planet’s roof.”

Preet Bharara:

What do you think a barrage of projectiles would be?

Joyce Vance:

I’m thinking empty bottles of alcohol.

Preet Bharara:

You don’t think it’s a hotel that has javelins in the room?

Joyce Vance:

It could be furniture, right? If you were really drunk, I guess.

Preet Bharara:

I guess anything can be a projectile.

Joyce Vance:

Yeah, I mean-

Preet Bharara:

All right. I interrupted you.

Joyce Vance:

No,-

Preet Bharara:

So, the guests at the hotel are throwing a barrage of projectiles, damaging Third Planet’s roof.

Joyce Vance:

And there’s a new level of destruction in March of 2019. Here we get specific. Hotel guests launched a torrent of large metal canister fire extinguishers from the hotel onto Third Planet’s roof. And they landed with an explosive impact causing significant compromise to the structural integrity of the roof. What happened after that?

Preet Bharara:

So, it turns out that after Third Planet filed its initial court filing, the hotel, Crowne Plaza, filed what’s called special exceptions, which is a technical term, objecting to various things. And the particular complaint that you’re allowed to make is that it could not sufficiently understand the claims and allegations against it. Couldn’t sufficiently understand the claims about the flying projectiles. And so, what did Third Planet do?

Joyce Vance:

Well, they wanted to help Crowne Plaza out. They were nice litigants. They amended their petition and added a section that, literally, illustrates the events leading to the lawsuit. The new section is a fully illustrated comic book in keeping with the nature of their business.

Preet Bharara:

Unfortunately, this is a podcast we can’t show you the image. But the cover of the comic book that is now a part of the pleadings in the legal case, features the owner of Third Planet angrily gripping a bowling ball of fire extinguishers, cutlery, and cigarette butts fall all around him.

Joyce Vance:

The final page shows a bowling lane, but instead of nine bowling pins standing at the end, the artists drew nine red fire extinguishers. And Tj Johnson’s mighty bowling ball careening towards them. The judge has to have secretly appreciated this.

Preet Bharara:

Oh, yeah, of course. And like all good comics, how does it end?

Joyce Vance:

To be continued.

Preet Bharara:

To be continued. And so, Joyce, there’s another way to say to be continued. It’s what I always say. Stay tuned. So, stay tuned for next week. We’ll talk about all these other issues that continue to unfold including what’s going on with the January 6th Select Committee. Send us your questions to letters@cafe.com.

Joyce Vance:

We’ll do our best to answer them.

Preet Bharara:

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, Noa 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.