Preet Bharara:

Hey folks. The midterm elections are just around the corner and there is much uncertainty and worry about our democracy. At CAFE, we’re dedicated to bringing you thoughtful, in-depth analysis at the intersection of law and politics. For the next few weeks, we’re offering 40% off the annual membership price to join as a CAFE Insider member. Insiders get the exclusive weekly podcast I co-host with Joyce Vance, bonus stay tuned content and more. Just head to CAFE.com/insider and enter the promo code midterms. We look forward to having you as a part of the insider community. Now, onto the show. From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Jamie Raskin:

It is not a criminal trial. It’s not a civil trial, it’s not a trial of any kind. It’s an investigation into what happened and all of us are partisan and partial just to one thing, which is the truth of what happened.

Preet Bharara:

That’s Congressman Jamie Raskin. He’s represented Maryland’s Eighth Congressional District since 2017. He became a household name as the lead House manager for the second impeachment trial of Donald Trump, the one prompted by the January 6th insurrection. Now he’s a key member of the House January 6th Committee, which has held eight public hearings about the planning and execution of the attack. Representative Raskin and I dive deep into the committee’s investigation. When will we see a report? Should we expect a criminal referral? And what does the congressman think about the Justice Department’s investigation? That’s coming up. Stay tuned.

Now let’s get to your questions. So we’ve gotten a lot of questions this week about Judge Aileen Cannon. You’ll remember she’s the federal district court judge in the Southern District of Florida who’s overseeing Donald Trump’s challenge to that search for documents at Mar-a-Lago. Here’s a sampling of some of the questions we’ve gotten. This is from Michael Wassanar. If the Justice Department is unhappy with Judge Cannon, do they have any recourse #askpreet? This comes from Twitter user mjpagefive. Can any sanctions be imposed on the judge overseeing Donald Trump’s case? And this comes from Twitter user Litz11. How do we get rid of Judge Cannon? Like literally, what would be the steps? Now folks, I understand that you have strong feelings because the case relates to Donald Trump and you have strong feelings about his mishandling apparently of sensitive and classified documents, and I get all that. But understand that federal district court judges and federal circuit court judges and Supreme Court justices all have life tenure and are pretty isolated from sanction and removal. And that’s how it should be, even if from time to time you disagree with the judge’s particular opinion.

Now, the first thing that any lawyer can do or any party in a case can do if they don’t like or disagree with the decision or opinion of a judge is to appeal if appeal is appropriate. Now remember in this very case, the Department of Justice appealed in part a ruling by Judge Cannon that prevented the Department of Justice from reviewing classified documents in connection with its criminal investigation of what went on with the documents. And on that particular fairly narrow appeal, the Department of Justice won and reversed Judge Cannon, the 11th Circuit did. So that’s a good sign. They also have a pending appeal with respect to broader issues including the appointment of a special master in the first place and the ability to review the non-classified materials so they can both do their criminal investigation and also conduct a broader national security review.

So appeals matter. They don’t always work, but that’s your first line of defense against an opinion or decision or an argument by a judge that you don’t like. Now in very rare cases, a party can make a motion to disqualify a judge from a particular matter if they can make a pretty substantial showing that there is bias or some other problem with the judge. If you have read my friend Bill Browder’s most recent book Freezing Order, he recites in great length and in great detail efforts to disqualify a judge from hearing his particular case. And that actually happened. But in my experience, it’s very, very rare. It’s also very rare in the first instance for lawyers to attempt to disqualify a judge because as an initial matter, it’s the judge himself or herself who makes a decision about whether to disqualify oneself. And judges don’t like being asked to disqualify themselves.

They feel, as you might imagine, they think and feel that they are not biased, they are neutral no matter who appointed them, and they’re issuing good faith decisions and opinions based on the law and the facts. So people don’t want to piss off the judge. So it is not attempted very often. And when it is attempted, it’s not successful very often, although it sometimes happens. And then in the most extreme case, and this happens incredibly rarely in this country, a judge can’t be fired, but a judge can be impeached and removed. And it’s happened on rare occasions in the country. And no matter what you think about Judge Cannon, and I disagree with opinions that she has issued in this case and her overruling of some of the things that the special master Judge Dearie has done. But I don’t see anything that rises to the level of disqualification at this point or a workable and winnable disqualification motion and certainly not anything warranting removal.

Now, I have a lot of experience as a lawyer mostly, but also as an observer. But as a lawyer and a person who was a party in many cases where I didn’t like the judge’s decision, I understand the frustration associated with these questions. But if every time somebody in the country, citizen or participant, didn’t like a decision by a judge and it was an easy matter to remove that judge or issue sanctions against that judge, I think we’d be in a bit of chaos. So be patient. I think the case will work itself out and we’ll report on it as it unfolds.

So I’ve gotten a couple of questions related to the Washington Post report from Monday of this week that says that among other things, there was a lawyer for the Trump team earlier in 2022 who was asked by Donald Trump to basically certify that all sensitive documents taken from the White House had been returned to the National Archives and that lawyer refused to do so. That lawyer’s name is Alex Cannon, apparently no relationship and no relation to Judge Aileen Cannon. But it’s interesting if that story is true what it means for Donald Trump, what it means for a finding that he had knowledge and intent with respect to the handling of those documents.

So as an initial matter, as I said to Joyce Vance on the CAFE Insider this week, it’s a good practice point for young lawyers and also middle aged and also old lawyers, that if you can’t personally certify to facts, be very wary of relying on your client and the representations made by your client if they want you to make a representation, particularly if you’re making representation under oath and under penalty of perjury and perhaps making that representation to law enforcement. And in this case, apparently Alex Cannon as the report goes, was uncomfortable because he had not conducted the search for documents himself for among other reasons, that he was worried that he would come across classified documents and he did not have security clearance, so he refused.

Now that’s interesting in part also because it’s in stark contrast to what happened later in 2022 where the Justice Department has revealed that a lawyer, media reports identified that lawyer, Christina Bobb, but that lawyer did sign a sworn certification that all the documents being sought by subpoena and otherwise were turned over. And we know that was false or mistaken, or if you want to be less charitable, a lie, because the search was conducted based on suspicion and probable cause, obviously, and documents were found that would’ve been responsive to the requests and to the subpoena. So Alex Cannon clearly had better judgment than Christina Bobb in this matter.

And the other thing that comes out of that Washington Post article, if it’s true, that I think is very important, is that it reports that Donald Trump himself did the packing of many of those boxes, if not all the boxes that were returned to the National Archives earlier in 2022. So this report gives us evidence and information beyond what we’ve already known. It tells us that Donald Trump had an active involvement in the packing of documents in the commingling of what seems to be classified information with other personal documents and personal effects. And he also seems to be the person who is attempting to get someone to make a false representation, a false certification, that everything sensitive had been turned over. It doesn’t take much after knowing that to make an even stronger argument that Donald Trump had knowledge and intentionality when it came to the possession of those documents. And he was successful with respect to another lawyer, as I mentioned, Christina Bobb, in making a false declaration to the authorities.

That also goes obviously to the issue of whether or not the government can make a case for obstruction. And the other thing just to remember here, as each of these episodes indicate that are reported in the press and that are revealed in court documents, this was not a one off. This was not an accident. On one occasion, the government asking for the return of some documents and there was immediate compliance and the documents were returned, but there was a mistake and an omission and a couple of things were left behind. This is repeated accommodation followed by repeated defiance and what looks like repeated obstruction over a period of months and months and months that finally culminated in the need to do a court authorized search on Mar-a-Lago. It’s the fight that we’re talking about with respect to Judge Cannon.

So all of that when taken together indicates a degree of misconduct that I think the department is trying to get the timeline on and may ultimately present to a grand jury. We don’t know if it will, but with each revelation it looks closer and closer to getting to that point. We’ll be right back with my conversation with Jamie Raskin

Before he ran for the house. Jamie Raskin was a constitutional law professor. That makes him a rare breed in Congress. But it’s also made him an essential voice in the wake of the Trump presidency. Speaker Pelosi has repeatedly called on representative Raskin to serve in high profile roles investigating Donald Trump. Congressman Jamie Raskin, welcome to the show. Thanks for joining us.

Jamie Raskin:

I’m delighted to be with you, Preet.

Preet Bharara:

Obviously, I want to spend some considerable amount of time talking about the January 6th Committee that you serve on. But as people may recall, one of your duties during this time period, as you described it, was to be one of the House managers with respect to Donald Trump’s second impeachment, which was focused on the issues relating to January 6th. How is that experience, the second impeachment, similar to or different from this experience in the January 6th Committee?

Jamie Raskin:

Well, looking back on it, we were all in shock still during the impeachment trial. It came just a few weeks after January 6th, that it was basically that a month later that we started it and it lasted for a week. We did not have the opportunity to interview more than a thousand witnesses and to have all of the detailed factual investigation, which leaves no doubt that Donald Trump concocted the whole scheme or all of the schemes to try to overthrow Joe Biden’s victory in the Electoral College and to basically install himself as president for another four years. But he was being charged by the House and was impeached by the House for inciting insurrection against the Union and that he definitely did. And we had overwhelming irrefutable and certainly unrefuted evidence that he set about to incite that insurrection and only intensified his calls over the course of the day, even when he knew the Capital had been overrun and his own Vice President was in danger.

Preet Bharara:

Can you explain why was it necessary or was it necessary for that second impeachment process to be so abbreviated? Could you not have taken the time to interview maybe another thousand witnesses, but more witnesses?

Jamie Raskin:

Well, I actually discussed this whole question at length in the book that I wrote about all of the traumas that I went through and the country went through during this period. But the first thing you got to understand is that we did not have a majority of the senators on our side for witnesses unless we were going to have witnesses on both sides, meaning that the Republicans would’ve been able to call the people they were threatening to call, which was Nancy Pelosi and Kamala Harris and a bunch of people who were a complete distraction from the President’s trial for inciting and insurrection, but they thought would create a political circus. And so that would’ve been the necessary price of it. The one witness we really wanted to call, who was Congresswoman Jamie Herrera Beutler, we actually were able to call and to get her evidence in on an uncontradicted basis because they accepted it going forward.

There was also no real appetite on the part of the senators to continue the hearing any further than we were planning to go up until that weekend. I mean, they literally wanted to leave town and they wanted it to be the end of it. So I figured we got in Jamie Herrera Beutler’s testimony about McCarthy saying to her that he had called Donald Trump, told him to call off the animals he had unleashed against us, and then Trump saying, “Those aren’t my people. That’s Antifa.” McCarthy contradicting and saying, “It’s not Antifa. These are your people,” and, “Who the F do you think you’re talking to?” So we got in the evidence we needed.

But the bottom line is when McConnell got up at the end and he said basically that the House had made its case and that Donald Trump was practically actually factually ethically and morally responsible for what had happened, but there was no jurisdiction for the Senate to conduct the trial, that told us everything we needed to know, which is we could have had 10,000 witnesses. It would’ve made no difference because what they hung their hat on was the idea that the Senate couldn’t conduct the trial even though that was a legal question that had been decided on the very first day of the trial against that position, and in accordance with more than two centuries of practice. The Senate has always rejected that argument is absurd. It would mean basically anybody could just commit impeachable offenses, high crimes and misdemeanors and then quickly resign and then never be impeached or tried or convicted for their crimes against the Union.

Preet Bharara:

Here’s a question that I’ve gotten and I attempted to answer last week trying to channel one of your colleagues Adam Schiff a little bit, and I wonder how you answer it. And it came in an email from a listener named Jake who wrote to us, “As a political matter, what do you make of Democrats focus on Trump’s potential crimes? I’m thinking specifically of the January 6th hearings and around the clock coverage. If swing voters haven’t been convinced by now of his unfitness for office, what more could convince them?” And then this person writes, “I appreciate the need for accountability, but do you think any of this actually helps Democrats keep Congress?”

Jamie Raskin:

So there are two forms of accountability that are in play here, and I like this listener’s question very much. One is individual criminal accountability. And I think he’s basically right that when we get through this final hearing, we will have done literally everything in our power to make the facts known such as to all ow the ground to shift underneath every prosecutor in the country so they understand that the public understands that there were real offenses committed. But really at that point, it’s no longer up to us. We respect the independence of the law enforcement function and we should allow the DOJ and the prosecutors in Georgia and New York and DC to do their thing and leave it up to the justice system.

But there’s another form of accountability here which is collective political and social accountability. And that’s really the charge of our committee under House Resolution 503. We need to tell the facts to the American people and to the Congress in such a way that we can devise the legislative recommendations we need to fortify Democratic institutions against coups, insurrections, political violence and electoral sabotage in the future. And that’s the kind of accountability we should be focused on now. So I guess I agree with the spirit of the question.

Preet Bharara:

Well, part of the question, let me ask it again, is do you think any of this actually helps Democrats keep Congress? And my answer to that, and I assume a version of your answer to that is that’s not the reason you’re doing this. This is not about maintaining political power in one party. It’s about these larger questions and issues that you’ve addressed. Is that your reaction?

Jamie Raskin:

Yes, of course. I mean, that’s the answer. I mean, this is not an electoral exercise or a partisan exercise. When they accused us of engaging in a partisan exercise, I would say it seems like that because all of our witnesses have been Republicans pretty much. And it seems like it’s just a Republican exercise, but it’s very much bipartisan and the Democrats are involved, too. But I will say this, without being too coy about what the listener’s saying, I mean, I believe that the Democratic party is the party of democracy in America today. It gives me no joy to say that as I look at the bust of Abraham Lincoln on my desk, that I inherited it from my grandfather.

There used to be two parties that were committed to democracy. Lincoln’s party was an anti-slavery, anti-racist, at least as far as they could go in those days party, an anti-no nothing party, a pro-immigrant party. It has been reduced to an authoritarian, quasi religious cult of personality. It is no longer doing the things Democratic parties do defending the results of Democratic elections even if they don’t win them. And they have endorsed and embraced and refused to disavow political violence, which is also the sign of an authoritarian party, not a Democratic party. So at this point, the Democratic Party is the party of democracy, and I believe that anything which strengthens democracy will strengthen the fortunes of our party.

Preet Bharara:

How important is it to how the committee’s work has been perceived now and also in the future for posterity that the committee includes Liz Cheney and Adam Kinzinger?

Jamie Raskin:

Well, I think it’s been essential precisely because it cannot be disregarded or diminished as a partisan exercise, which is what they tried to do with both impeachments, much less success the second time around when we had 10 Republicans join us in voting to impeach, that’s in the House, and seven Republican senators joining us to vote to convict. The 57 to 43 margin in the Senate was the most sweeping bipartisan vote to convict and impeach president in the history of the United States. But I think it was very important for people to see that the real partisans, of course, were in the outside trying to tear down the possibility of any investigation, which is what McConnell and McCarthy and Jim Jordan and Matt Gates and those guys did.

They first put out a proposal for a 50-50 investigation, five Republican appointee, five Democratic appointee, equal subpoena power. And then when Donald Trump vetoed it by saying he didn’t want any investigation at all, they pulled the plug on their own proposal and then they tried to block the House select committee investigation. They tried to put insurrectionists on the committee, and we told them we were going to go forward regardless, and they boycotted it. So we were able to get Liz Cheney and Adam Kinzinger to participate in it. And I think it’s been important to show the country that this is a meaningful bipartisan exercise.

And moreover, it also demonstrates how all of our committees could operate and how all of our hearings could seem to the public if we didn’t have the extremist faction of the GOP trying to wreck all of our hearings and just engage in food fights and diatribes all day long because that’s what they get. This is a real hearing and millions and millions of Americans are completely tuned into it. Imagine if we could have hearings about gun violence or climate change that operated on the same principles.

Preet Bharara:

Do you think you’ve moved the needle with respect to public sentiment among Independents and among Republicans?

Jamie Raskin:

Well, I know we have both anecdotally, by virtue of the emails and the letters I get from Independents and Republicans, who just tell me they’ve had it and they can’t take it anymore and they did not sign up for this kind of nihilism and authoritarianism. And I know it also from the public opinion polls, which show that more than two thirds of Independents reject the big lie and reject the kind of insurrectionist politics that the GOP has unleashed against us. I hear from Republicans, not as many, but I do hear from Republicans and I know that there has been some erosion there, and people say, “Well, still the vast majority of Republicans embrace the big lie.” This is true, but we don’t need all of them to-

Preet Bharara:

Every little bit helps.

Jamie Raskin:

Yeah. Well, if we get two or 3% of them to come on over, 4% of them going to come on over with Liz Cheney and Mitt Romney and Adam Kinzinger, that’s great. I don’t know that the Republican party, which is already a minority party and a shrinking minority party can withstand those kinds of losses.

Preet Bharara:

Can you take us behind the scenes a little bit, and to the extent appropriate, explain how it is that the committee decided which hearings would happen and what order, who the witnesses would be, and what the focus would be and which would be in prime time and which would be during the day? I think there’s some curiosity about that.

Jamie Raskin:

Yeah, I mean, I can’t get into all the behind the scenes discussions and meditations and deliberations about all of these things. But the amazing thing has been that there’s been a unanimity of purpose in terms of setting forth to the American people and the Congress what the facts are of what has happened so people can actually understand the elements of the attempt to overthrow the results of the 2020 presidential election. So the disagreements we’ve had have been essentially about, well, what is a more effective technique of presenting factual evidence that we all agree on together? And for the rest of it, how those specific kinds of decisions were made, I’m afraid you’ve got to wait a little bit longer.

Preet Bharara:

And then you’ll tell us all the behind the scenes stuff after it’s over.

Jamie Raskin:

I’m sure that somebody will. I’m sure somebody will.

Preet Bharara:

So some subpoenas were issued and some people did not get subpoenas. Most recently, we’re recording this I should note, on Monday, October 3rd, the first Monday in October, and I guess relevant to that, appropo of that Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas came before the committee. She was not issued a subpoena. And I’ve gotten the question on the podcast from people, “Well, why not?” What’s the answer to that?

Jamie Raskin:

Well, nobody has been issued a subpoena if they were willing to testify voluntarily first. So we’ve not been out there just trying to throw subpoenas around. We’ve tried to approach everybody and say, “Come on in. I mean, do what is your legal and constitutional responsibility and do also what you should consider a civic and patriotic duty. Come and tell us what you know about the worst domestic violent insurrectionary attack on the Capital the United States and the Vice President in the Congress in American history, the worst attack on the Capital since the war of 1812. Come and tell us what you know.” And the vast majority of people have responded to that, but we have used subpoenas when people have decided they want to play games about it.

Preet Bharara:

How was Ginni Thomas’ testimony?

Jamie Raskin:

Well, the chairman of the committee has spoken about how she continues to believe that Donald Trump won the election. And so she essentially continues to embrace, along with Donald Trump’s immediate coterie, large parts of his following, They continue to embrace the big lie, and after the big lie has been rejected by more than 60 courts, federal and state courts that have repudiated every allegation of electoral corruption and fraud that was put forward. And so that’s just a bizarre thing to see in just a fellow citizen that there are people who have every means at their disposal of reading and having access to the facts, but continue to buy a dangerous cultish fiction like this. And I was disappointed because I knew that Ginni Thomas was someone who had been in a religious cult who had gotten out and had been essentially deprogrammed and has appeared in ways to criticize cults that now she’s back into a kind of political cult of personality and disinformation and propaganda.

Preet Bharara:

Has Mike Pence been asked to testify voluntarily by the committee?

Jamie Raskin:

Well, I’ll just say that the committee’s definitely been in touch with both former Vice President Mike Pence with his staff, and I can’t get into that anymore than that.

Preet Bharara:

The reason I ask is you said a minute ago that people who are relevant to the investigation, if they’re asked to testify and they say yes, they don’t get a subpoena. If they say no, maybe they will get a subpoena. I’ll ask it a different way. Has Mike Pence been issued a subpoena? And if not, why not? Can you answer that?

Jamie Raskin:

I really can’t answer it because I don’t want to go into specific cases of particular individuals because everybody’s got their own story and everybody’s got their own schedule, and so I can’t get into specific.

Preet Bharara:

Okay. Well, so I think that the hearings have been incredibly effective, poignant, revelatory, lots of different words you can apply. There are some people who say, and I wonder what your response is that, “Well, sure. You took thousands of hours of testimony from a thousand witnesses and more. You looked at a lot of documents and communications and then you put on a selective narrative with bits and pieces of the most astounding testimony. You strung them together very effectively.” And people will say on the other side of this issue that it’s a selective cherry picked presentation of the facts that supports the conclusion that the committee wants the public to draw. How do you respond to that?

Jamie Raskin:

Well, it’s false because we set out to tell a comprehensive, factual narrative about what actually happened. And nobody has laid a glove on any of the factual witness testimony. And nobody has challenged the basic story that our bipartisan committee has been able to tell. And all-

Preet Bharara:

But people will say, I’m just playing devil’s advocate here because obviously I have a point of view consistent with the committees, but part of the reason no one has laid a glove on any witness is that there haven’t been members of the committee, and this is maybe Kevin McCarthy’s fault, but there hasn’t been anybody to sort of present the other point of view and to cross-examine the witnesses in the way you might see it at trial. Not that this is trying to be a trial, but is that part of the reason why there hasn’t been a glove laid?

Jamie Raskin:

I think that mistakes what the purpose of this is. It is not a criminal trial. It’s not a civil trial. It’s not a trial of any kind. It’s an investigation into what happened. And all of us are partisan and partial just to one thing, which is the truth of what happened. And the people who are attacking us are people who are invested in one particular story, which is that Donald Trump did nothing wrong. Donald Trump can never do anything wrong. His mob greeted our police officers with hugs and kisses, which is presumably how 150 of them ended up wounded and injured and hospitalized with broken arms and necks and jaws and missing fingers and heart attacks and strokes and traumatic brain injuries and so on.

I mean, we have no charge to prosecute or convict anyone. Our only charge is to get it the truth. And that’s what Donald Trump decreed could not happen, which is why his cult followers in the GOP rejected their own proposal when we agreed to it, when Trump said no, he didn’t want any investigation at all. And if I had done what he did, I would not want any investigation at all either.

Preet Bharara:

Yes, it’s not an irrational position.

Jamie Raskin:

So yeah, I reject that idea. I mean, it’s not like there are two legitimate sides here. There’s really one side which is the side of truth and evidence where we all are in pursuit of the truth and evidence on a bipartisan basis. And then there are those people who don’t want us engaged in this process.

Preet Bharara:

What’s the timeline for the committee going forward? Do you consider your deadline to be the election, the timing of the next Congress coming in, or no deadline at all?

Jamie Raskin:

Well, the deadline in the nature of things in the House of Representatives is the end of this session of Congress, this term, because the House of Representatives unlike the Senate ends every two years and a new Congress is created with new rules and new committees and new assignments and all of that. Whereas the Senate, because of the overlap staggered six year terms, of course is a continuing body and a continuing institution. So we’re like Cinderella, I mean-

Preet Bharara:

So midnight is approaching. Midnight is approaching, sir. So what can we expect in terms of more hearings? I mean, what is there left to show and what can we expect in terms of number of hearings and a report?

Jamie Raskin:

Well, Resolution 503 asks us to describe and analyze the events of January 6th, explain why they happened, and then to make recommendations preventing a repetition of coups, insurrections, electoral sabotage and political violence going forward in the future. So that’s the part that we still need to finish fleshing out. We need to vote on what our recommendations are. I hope that we’ll be able to maintain relative consensus, but if we don’t, that’s fine. That’s democracy. And if there are divisions, I don’t think it’ll be on a partisan basis. I think people may just have different ideas about different things. But we need to get those recommendations out and get our report out and have people kind of understand the totality of the whole thing and then hear from us about what we think American democracy needs to do to strengthen and steal itself going forward.

Preet Bharara:

So we’re going to see that report in 2022. Am I right?

Jamie Raskin:

Yeah, I have every reason to believe that. There are a few days we’re left in business in January, but I’m certainly hopeful it will be out in the month of December.

Preet Bharara:

Do you have a ballpark figure how long it’s going to be so I know how late I’m going to have to stay up that day?

Jamie Raskin:

I don’t. So one of the things that we all resolved we wanted to do together was to conduct the investigation and create hearings in such a way as to engage people’s attention so that it would be totally factually based and totally interesting, so that people could follow it and make sense of it. And we’re also adamant that the report follow that basic understanding. So we think it’ll be the kind of thing that people will want to read, and there might even be multimedia presentations of it. You might be able to get video versions of at least portions of it, if not the whole thing.

Preet Bharara:

We’ll be right back with more of my conversation with Jamie Raskin after this. Was there one witness that you thought more than any other best made the case for the intentionality and deliberate mental state of Donald Trump in this whole episode?

Jamie Raskin:

I mean, I think of certain moments when it became crystal clear. I mean, certainly when Cassidy Hutchinson quoted Donald Trump saying, “Just let them all in. Forget the magnetometers, the metal detectors. They’re not going to hurt me.”

Preet Bharara:

They’re not here to hurt me. Right. Exactly.

Cassidy Hutchinson:

I was in the vicinity of a conversation where I overheard the President say something to the effect of, “I don’t care that they have weapons. They’re not here to hurt me. Take the f’ing mags away. Let my people in. They can march the Capital from here. Let the people in. Take the f’ing mags away.”

Preet Bharara:

That was a stunning moment.

Jamie Raskin:

Well, when he was making clear that he knew they were dangerous, he knew they were armed, but they were no threat to him, so he didn’t mind being in their presence. I mean, he wanted to march to the Capital with them. He wanted to be restored to power like Mussolini on the backs of an authoritarian mob that was willing to wage violence against our police officers and storm our buildings, tear down our doors, break our windows, and drive the representatives of the people and the Vice President out of the building.

So that was a powerful moment. I think the testimony of Brad Raffensperger was blistering and eyeopening and Speaker Rusty Bowers from Arizona. I mean, these are died in the wool, lifelong Republicans who’ve given thousands of dollars to the Donald Trump campaigns and so on. And yet they were reciting conversations where they basically had to say, “No, I’m not going to lie for you. I’m not going to cheat for you. I’m not going to break the law.” But all of that evidence cumulatively demonstrated that Donald Trump was hell bent on overthrowing the presidential election. This was not some kind of boisterous rally that got out of hand. This was an organized hit against American Democratic institutions.

Preet Bharara:

Most of your witnesses, in fact, were Republicans. And maybe that’s why it’s moved the needle, as you said, amongst Independents and at least some Republicans.

Jamie Raskin:

Yeah, I mean, you would think that in a logical and a rational world it would move all of them. But it’s remarkable to me the way that Donald Trump can immediately turn on a dime on the people that he celebrated before as his best friends and his best supporters, and then suddenly denounce them as liars and traitors and cheats and second rate and all that kind of stuff. And the amazing thing is not that he would do it, because we’re now accustomed to that, but so many people go along with it and just accept, oh yeah, William Barr, he was the greatest Attorney General in American history. Now he’s the worst Attorney General in American history because he turned against Donald Trump. I mean, it is-

Preet Bharara:

He had his chance. He could have been the greatest.

Jamie Raskin:

It is pure cultest thinking. It is purely cultist thinking.

Preet Bharara:

Have you formed a view of whether or not there is sufficient evidence to charge Donald Trump with the federal crime?

Jamie Raskin:

Well, the committee’s position is that we have set forth evidence both publicly and also in pleadings, like in the John Eastman case in California, taking the position that there were crimes committed. I agree with the judge in that case who said, certainly as a civil matter, it was more likely than not, it was likely that Donald Trump had committed federal offenses. I mean, look, if all these people are being prosecuted and convicted of conspiracy to interfere with a federal proceeding or seditious conspiracy against the government, then certainly Donald Trump has got to be implicated, too, because he was the one who set all of these events into motion. I mean, is there anybody in the country who would be willing to say with a straight face that any of this would’ve happened if Donald Trump had just accepted the results of the election the way every other presidential candidate in history has.

Preet Bharara:

If he had conceded, none of this happens-

Jamie Raskin:

Of course not.

Preet Bharara:

And that is not the refutable, right?

Jamie Raskin:

Of course not. So he is the one who has been behind every element of all of these efforts to overthrow the results of the election. And we saw how even when he knew what physical danger people were in at the Capital, he still kept inflaming the mod saying, “Mike Pence just didn’t have the courage to do what needed to be done.”

Preet Bharara:

So given the committee’s position in the way that you just described it, will the committee make a formal or informal or any kind of criminal referral to the Department of Justice?

Jamie Raskin:

Well, Preet, I mean you know that there’s no general statutory mechanism for making a so-called criminal referral.

Preet Bharara:

Right. No. I tell people all the time, it’s not needed, it’s not necessary, which is why the issue is interesting to me. Because as I understand it from the reporting, there has been some difference of opinion among members of the committee, and some people think since it’s not necessary, why make the referral? And other people say it seems that it’s still a powerful statement on the part of the committee and puts some burden back on DOJ. Do you have a view about any of that?

Jamie Raskin:

I mean, I think it’s a debate that’s just rooted in semantic confusion. I mean, because-

Preet Bharara:

My favorite kind of debate. This is a podcast.

Jamie Raskin:

Well, look, we were talking about referrals when a bunch of people like Steve Bannon were engaged very clearly in contempt of Congress. And there is a very specific statute that allows Congress to refer to-

Preet Bharara:

That’s a formal process by which, certain hurdles have to be surmounted in order for there to be a criminal prosecution. Here, there’s none of that.

Jamie Raskin:

Exactly.

Preet Bharara:

Do you favor a referral or not? Or you don’t really care that much?

Jamie Raskin:

Well, I’m just saying this is where the confusion came from because we had all these criminal referrals and then the reporters started saying, “Well, are you going to start referring people for seditious conspiracy and for assault on the Capital and so on?” And there’s no formal process for it. We have laid out exactly what we think. I don’t think we’ve been shy about that. I don’t think we will be shy in our report about enumerating the various federal offenses that we saw being committed. But we really don’t need to engage in a tutorial with the Attorney General and the Department of Justice. They’ve brought more than 900 prosecutions already. They know what federal laws are in play here. But the answer to your question is no. We’re not shy about doing that at all. But we also are wanting to be respectful of the independence of the law enforcement function. They don’t need us telling them how to do their job.

Preet Bharara:

So I would encourage you in that attitude of not being shy. So let’s talk about Justice Department for a moment. Are you speaking for yourself or the committee, whichever you prefer, happy and satisfied with how the Justice Department has gone about its business in this matter? Frustrated by it? Confused by it? How would you describe your reaction to how the Justice Department has proceeded and the speed with which it’s proceeded?

Jamie Raskin:

I’ll just speak for myself, Preet. I was there on January 6th. I had family members with me on January 6th. If you are caught up in a nightmare situation like this, no prosecutor and no prosecution team can move too quickly. And you want to see it move and you want to see that justice is done at that individual level as well as at the level of collective Democratic accountability. But having said that, they’re engaged in the most sweeping criminal investigation in American history, and I think that they have proceeded in a methodical and fair way. And nobody is going to be able to question the impartiality and the fairness of the Department of Justice’s investigation or prosecution of people who perpetrated these crimes against us, so-

Preet Bharara:

You’re being very nice. Do you have an understanding as to why, given that the department has seen fit according to reports, to issue 40 subpoenas to various people that the committee has interviewed in prior months, why they wouldn’t have issued those subpoenas some time ago?

Jamie Raskin:

I mean, I have no idea. I mean, literally, I have no more insight into what’s taking place behind closed doors in DOJ than anybody else does. I mean, we have a completely separate world from them in terms of what we’re operating within our own investigative paradigm. And I don’t know whether the reason they were later in issuing some of the subpoenas is because they learned from our hearings things that piqued their interest, or if it’s just the natural flow of events. I just don’t know.

Preet Bharara:

So you don’t have a view as to whether or not the work and the uncovering of information by the committee prodded the Justice Department?

Jamie Raskin:

Well, you know…

Preet Bharara:

Don’t be shy.

Jamie Raskin:

We like to think that our committee has done a good job of making some general abstract points human and vivid to people. And I know that that’s true of the public. I think that generally the ground has shifted underneath the whole country about this. People are really understanding how close we came to losing it all on that day. Donald Trump would’ve had absolutely no problem at all invoking the Insurrection Act, declaring martial law, calling in the National Guard to put down the chaos that he would blame on Antifa, and then calling himself President and moving us into a very different kind of government. And we came really close to that happening on January 6th. So I think that’s become real to people and to the extent that prosecutors feel they can do their job with respect to politicians and former and former politicians when the public understands the truth, then maybe it’s made some difference. But what I’ve learned is that a lot of the things that we’ve just learned of were taking place back in March and April by the DOJ before we even began our hearings.

Preet Bharara:

Has the Department of Justice asked for the transcripts of all of your interviews?

Jamie Raskin:

I don’t know precisely what they’ve asked us for.

Preet Bharara:

Has the committee given them what they’ve asked for?

Jamie Raskin:

Again, that’s not one of the things that I’ve been closely involved in. So I can’t say. In general, the committee is invested in law enforcement being able to do its work and do its job, and we want to participate in helping the way any other citizens would. At the same time, we have our own investigation to do and we just don’t want to compromise that in any way, and I would say those are the competing values in play.

Preet Bharara:

What do you make of any defenses that Donald Trump could bring to bear by himself through counsel or through his supporters, that the speech he gave on January 6th was protected by the First Amendment, that other things he did are protected by through the rules of standard operating procedure and politics? How do you think that your hearings in total, in aggregate, make the case against those defenses?

Jamie Raskin:

I mean, if we start with the First Amendment defense. It was definitely no defense in the impeachment trial, of course, because it wasn’t a criminal trial where he was being prosecuted for his speech. The question was whether or not he’d engaged in high crimes and misdemeanors, including inciting a violent insurrection against his own government. And even his team never claimed that a president can incite insurrection against the Union and not be impeached for it because that would violate his first amendment rights. I mean, that’s just absurd and pathetic. It wasn’t about whether he was like a guy shouting fire in a crowded theater. He was like a guy who incites everybody to go down and burn the theater down and he’s the fire chief and then he does nothing about it, and sit and watch it all happen and let the fire rage out of control, and should he remain as fire chief.

So in impeachment, the First Amendment was just an irrelevant distraction from his breach of his duties of office. If he were to be prosecuted for interference with a federal proceeding, and he asserted a First Amendment defense that yeah, he concedes that he stopped the steal and you’ve got to fight like hell or you’re not going to have a country anymore, all those things. If he concedes that the purpose of that was actually to interfere with the federal proceeding, but he says it’s protected by First Amendment, then presumably that creates for the first time a constitutional question about whether interference of a federal proceeding can be a subsistent of crime.

Or whether you carve out an exception for Brandenburg’s speech, but amazingly, Donald Trump, who pushes everything to the ultimate extreme, I would say, even if we are going to look at it as a First Amendment problem, he comes within that narrow band of speech which is not protected, deliberate incitement to imminent lawless action. And that’s a very good description of what he was doing. He was deliberately inciting people to engage in imminent lawless action in a way that was likely to produce it, and we know it was likely to produce it because it did produce it.

Preet Bharara:

I know that you hope and pray, and I hope and pray given my political views, that you maintain the House. If however, the House goes to the Republicans, there is already chatter about how Republicans intend to impeach Joe Biden. I’m not clear what they would impeach him on. I’m not sure it matters so long as there’s the political will on the Republican side. As someone who worked on impeachment on the side of promoting the idea, have you given any thought to, or do you think about, or could you think about now on off the cuff, how you and other Democrats will respond to what looks like a deep need for retaliation on the part of the Republicans to impeach Joe Biden?

Jamie Raskin:

Well, a deep need to retaliate reflects the ongoing obdurate refusal to reckon with the reality of what Donald Trump did. If Joe Biden insights a violent insurrection against Congress and exposes his own Vice President to a lynch mob, well then Joe Biden should be impeached for that. But what is the high crime and misdemeanor? When you ask them today, they say, “It doesn’t make any difference.” They’re just going to-

Preet Bharara:

It doesn’t make a difference.

Jamie Raskin:

Right. They’re just going to engage in political theater. And that too is utterly cultish thinking because they want to completely trivialize the instrument of impeachment, which is reserved for extraordinary moments when the President has engaged in high crimes and misdemeanors against the people, crimes against the people and against the nature of our government, which is precisely what Donald Trump did. So if they were to abuse the instrument of impeachment, we would have to explain exactly what it is and how it works and meet them on the facts. But it doesn’t surprise me because it’s a party which literally did not adopt a platform in 2020. It was the first episode in the history of modern political parties when a political party got together in convention and then said they couldn’t come up with a platform. And of course they couldn’t because their only platform is whatever Donald Trump tells them to think on any particular day. So they can’t set forth any principles because there are no principles.

So for them, it’s all just games of ad hominem attack and character assassination and so on. And we understand that if God forbid they were to get back into power, that would be their game plan and that’s it. They would’ve no other program for the country.

Preet Bharara:

Last question, given that it’s the first Monday in October and you are in fact a longtime constitutional scholar, is there any circumstance in which you can see that affirmative action remains legal in higher education after the Supreme Court is done with the matter?

Jamie Raskin:

It would only be if the Supreme Court decided to return to principles of originalism. Because of course, the purpose of the 14th Amendment was to dismantle white supremacy, and there were lots of race conscious statutes adopted under the 14th Amendment. Most of the reconstruction legislation was very race conscious in trying to undo the generations long harms of slavery. And so if they brought that lens of originalism and textualism to looking at affirmative action, then they might. But of course, they’re just caught up in a right wing ideological crusade that has nothing to do with any form of jurors prudence. Of course, the words colorblindness don’t appear in the Constitution. That was just a metaphor that Justice Harlan used. But short of that, I don’t think we would, and I think that what we see is the Trump Supreme Court on a very political rampage.

Preet Bharara:

That seems to be the case. Congressman Jamie Raskin, you have a democracy to uphold and to strengthen, so we’ll let you go. Thank you for your time. Thank you for your service to the Congress and to the country.

Jamie Raskin:

Well, I’m grateful to you for having me, Preet. All the best to you.

Preet Bharara:

My conversation with Congressman Jamie Raskin continues for members of the CAFE Insider Community. To try out the membership for just $1 for a month, head to CAFE.com/insider. Again, that’s CAFE.com/insider.

I want to end the show this week by talking about some folks who are doing groundbreaking work. As you know, on September 18th, Puerto Rico was hit by a category one hurricane, Hurricane Fiona. The island was severely affected by record, rainfall and an island wide power outage. More than two weeks later, thousands are still without power. On Monday, President Biden and First Lady Jill Biden visited the south of Puerto Rico, the area that was most affected to assess the damage. And the government is providing much needed support. The President announced a plan to provide $60 million in federal funding for the island’s recovery. In addition, Biden announced the implementation of the Puerto Rican Grid Recovery Modernization team, which will be led by the US Energy Secretary, Jennifer Granholm, who is a recent Stay Tuned podcast guest. But the hurricane’s impact has sparked a broader conversation about the island’s weakened infrastructure, its power grid, and how climate change has sped up the deterioration of both.

That’s where Casa Pueblo comes in. As stated on their website, Casa Pueblo is a community self-management project that is committed to appreciating and protecting natural, cultural and human resources. And one of the many projects the organization has led is Puerto Rico’s transition to solar energy. Their goal is for 50% of the electricity generated on the island to come from solar power by 2027. Casa Pueblo has already been able to provide solar panels to hundreds of businesses and homes on the island. One town in particular, Adjuntas, where the organization is based, has served as a great example of the benefits of solar energy, and in these times, energy independence. Earlier this year at a time when Puerto Rico was experiencing frequent blackouts, many businesses in Adjuntas were able to maintain power largely because of Casa Pueblo. As reported by the New York Times, with backup batteries the systems can operate even in a blackout, keeping businesses open and turning the organization’s headquarters into a refuge for people who use medical devices that need to be powered.

So while there’s a long way to go, Casa Pueblo is just one example of how important it is to support community organizations and how they are helping make the world a better place for future generations. On Wednesday, President Biden also visited Florida to assess the damage caused by Hurricane Ian and provide assistance for Florida’s recovery. If you’re interested in helping Puerto Ricans or Floridians after the passing of hurricanes Fiona and Ian, make sure to visit the show notes of this episode on the CAFE website. On this week’s episode of Now and Then, by the way, hosts Joanne Freeman and Heather Cox Richardson discuss the history of Puerto Rico and another way to help in the recovery efforts. The Hispanic Federation is a nonprofit which played a crucial role after Hurricane Maria in 2017, and continues to help the island in the aftermath of Hurricane Fiona. If you’re able to, donate. And if not, simply sharing the work that these organizations do goes a long way.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Congressman Jamie Raskin. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the #askpreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@CAFE.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The Technical Director is David Tatasciore. The Senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Sean Walsh, Namata Shaw and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.