• Transcript
  • Show Notes

On this week’s episode of Stay Tuned, “Trial 2 for Individual 1” Preet answers listener questions about the Trump legal team’s impeachment brief, the possibility of the Manhattan District Attorney prosecuting Steve Bannon, and Russian opposition leader Alexey Navalny’s powerful speech upon receiving his prison sentence. 

Preet also discusses the arrival of Doing Justice, the new free six-part podcast based on Preet’s bestselling book of the same name. (Listen to the second episode on Apple Podcasts, Spotify, or wherever you get your podcasts.)

Then, Preet is joined by Congressman Adam Schiff and Dan Goldman to discuss the upcoming Senate impeachment trial of former president Donald Trump. 

In the Stay Tuned bonus, Preet, Schiff, and Goldman discuss how we should judge former Vice President Pence and former Attorney General Bill Barr, and talk about Rep. Marjorie Taylor Greene’s dangerous rhetoric. 

To listen, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: David Kurlander, Noa Azulai, Sam Ozer-Staton.

Q&A:

  • “Answer of President Donald John Trump to Article 1: Incitement of Insurrection,” Brief, 2/2/2021
  • Shayna Jacobs, “Manhattan district attorney considering prosecuting Stephen Bannon following his pardon by Trump in federal fraud case,” Washington Post, 2/2/2021
  • “‘Vladimir the Poisoner’ A translation of Alexey Navalny’s speech in court on February 2,” Meduza, 2/2/2021

THE INTERVIEW

  • Dan Goldman on Stay Tuned with Preet, CAFE, 2/13/2020
  • Congressman Adam Schiff on Stay Tuned with Preet, CAFE, 3/8/2018

THE SECOND IMPEACHMENT: 

  • “H. Res. 24: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors,” Congress.gov, 1/11/2021
  • Ryan Carter, “Impeachment comes full circle for L.A. Rep. Adam Schiff,” Los Angeles Daily News, 1/13/2021
  • “The Impeachment and Trial of a Former President,” Congressional Research Service, 1/15/2021
  • Nicholas Fandos and Jonathan Martin, “McConnell Was Done With Trump. His Party Said Not So Fast,” New York Times, 1/27/2021
  • Corey Brettschneider and Jeffrey K. Tulis, “No, Trump can’t pardon himself or other insurrectionists. Impeachment would strip him of that power,” Washington Post, 1/15/2021
  • Tom McCarthy, “Trump impeachment trial: Democrats warn Trump ‘will do it again’ if acquitted,” The Guardian, 2/3/2020
  • Jacob Knutson, “Lamar Alexander says House proved Trump withheld aid to pressure Ukraine,” Axios, 2/2/2020

THE INSURRECTION

  • Devlin Barrett and Matt Zapotosky, “FBI report warned of ‘war’ at Capitol, contradicting claims there was no indication of looming violence,” Washington Post, 1/12/2021
  • David Cohen, “Maryland’s governor still baffled by delay in approval for National Guard help,” Politico, 1/10/2021
  • Maggie Haberman, “Trump Told Crowd ‘You Will Never Take Back Our Country With Weakness,’” New York Times, 1/6/2021
  • Danny Cevallos, “Trump’s speech is probably defensible in every court — except, perhaps, the Senate,” NBC News, 1/14/2021
  • Fabiola Cineas, “Donald Trump is the accelerant,” Vox, 1/9/2021
  • Laura Bogart, “Trump tried to act like a mob boss. Instead he’s just a thug,” The Week, 1/19/2021
  • Ryan Goodman and Justin Hendrix, ““Fight for Trump”: Video Evidence of Incitement at the Capitol,” Just Security, 1/25/2021
  • Alexandra Petri, “Opinion: We love you. You’re very special. Go home,” Washington Post, 1/7/2021
  • Katie Benner, “Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General,” New York Times, 1/22/2021
  • Fiona Hill, “Yes, It Was a Coup Attempt. Here’s Why,” Politico, 1/11/2021
  • John Nichols, “Trump’s Congressional Co-Conspirators Are Just As Guilty as the President,” The Nation, 1/13/2021

HOUSE MANAGERS

  • Allyson Waller, “Here Are the House Managers in Trump’s Second Impeachment Trial,” New York Times, 1/26/2021
  • Kelsey Snell, “Amid Grief, Rep. Jamie Raskin Leads Trump Impeachment Effort In Senate,” NPR, 1/27/2021
  • Alia Slisco, “Who Is Barry Berke? Dems’ Lead Counsel Named For Trump’s Second Impeachment Trial,” Newsweek, 1/15/2021

CONGRESSIONAL CULPABILITY

  • Jaclyn Peiser, “Trump supporters heckle Romney, chanting ‘traitor’ on flight to D.C.,” Washington Post, 1/6/2021
  • Annie Grayer, “Capitol Police investigating after congressman discovered carrying a gun when attempting to go on the House floor,” CNN, 1/22/2021
  • Jordan Williams, “Parkland shooting survivor calls on GOP to denounce Rep. Greene after video,” The Hill, 1/28/2021
  • Amanda Holpuch, “Ocasio-Cortez rejects support from Ted Cruz: ‘You almost had me murdered,’” The Guardian, 1/28/2021
  • “Committees Open Review of Insurrection at Capitol and Threats to Stop Peaceful Transition of Power,” House Permanent Select Committee on Intelligence, 1/16/2021
  • “Domestic Terrorism and the Attack on the U.S. Capitol,” Congressional Research Service, 1/13/2021
  • David Smith, “Boost for Trump as 45 Republican senators vote to dismiss impeachment,” The Guardian, 1/26/2021

BUTTON

  • Josh Campbell, Eric Levenson, Rosa Flores and Sara Weisfeldt, ““Two FBI agents from crimes against children unit killed and three agents wounded in South Florida shootout,” CNN, 2/2/2021
  • Patricia Mazzei, Adam Goldman, Johnny Diaz and Christina Morales, “2 F.B.I. Agents Killed in Shooting in Florida,” New York Times, 2/2/2021
  • Tweet from Josh Campbell, Twitter, 2/2/2021

What’s going to happen at the second impeachment trial of former President Donald Trump?

Congressman Adam Schiff and former House impeachment counsel Daniel Goldman offer their predictions and reflect on the insurrection  

Congressman Adam Schiff and Dan Goldman, House counsel for Trump’s first impeachment, were arguably the two most central voices in the first impeachment of President Trump. Now, they reunite to discuss what we can expect during next week’s second Senate trial of former President Donald Trump. 

The duo, who put together a damning indictment of Trump’s extortionist actions toward Ukrainian President Zelensky, put Trump’s incitement of the January 6th insurrection into perspective with his past offenses, arguing that his recent conduct in furthering the “Big Lie” of a fraudulent election–and encouraging his supporters to take extreme actions to overturn President Biden’s victory–signaled an even more egregious abuse of power than anything Trump had ever attempted before. 

The following transcript has been edited for clarity. 

(Recorded 2/1/21 and published 2/4/21)

Preet Bharara:

From CAFE, welcome to Stay Tuned, I’m Preet Bharara.

Daniel Goldman:

Just wait until we see all of the Parler videos from social media of the people who attended his rally, who were going to the Capitol and saying that the president told us to storm the Capitol. They understood what he was trying to say.

Adam Schiff:

I don’t discount the fact that he may be convicted this time, and I hope he will be. But I think the case is equally important to make to the American people that if not disqualified, he will continue to pose a danger to the republic.

Preet Bharara:

My guests this week are Dan Goldman and Congressman Adam Schiff. Both were critical figures in the first impeachment of Donald Trump. Dan as lead counsel for the House Democrats, and Schiff, of course, as lead House impeachment manager. Dan is a trial attorney and legal analyst. Before serving on the Hill, he worked for me as a federal prosecutor in the Southern District of New York. Congressman Schiff has represented Los Angeles in the House since 2001. He currently serves as Chairman of the House Intelligence Committee.

You may recall that I spoke with Dan just about a year ago when Trump was impeached for the first time, well, folks, here we go again. The former president has been impeached by the House for inciting a deadly insurrection at the Capitol on January 6th. Today, I speak with Goldman and Schiff about what to expect from next week’s Senate impeachment trial.

We’ve also got a special treat for those of you who want to follow the proceedings more closely next week, but can’t watch the long hours in the Senate every day. Our very own Elie Honig, a former federal and state prosecutor is hosting a new CAFE show, Third Degree. Each day of the impeachment trial, Elie will brief you on everything you need to know, what just happened, and what to watch in 10 minutes or less. He’ll watch it all so you don’t have to. To listen and subscribe for free, just search Third Degree with Elie Honig wherever you get your podcasts. That’s coming up, stay tuned.

LISTENER Q&A:

It’s time for some listener questions. This question comes in an email from Sadie, who asks, “What do you make of the arguments made in the Trump team’s impeachment brief, are they as bad as they seem?”

Well, they’re not great. Thanks for your question, Sadie. To begin with, as maybe you heard, the very first line of the brief… It’s not really in the form of a brief, but the very first line in this document submitted to the Congress has a misspelling of the word United as in United States, it spelled Unites, maybe that’s wishful thinking about what will happen with respect to the country.

So, you may recall also that Donald Trump has had some difficulty getting lawyers to represent him in connection with the impeachment trial. The lawyers who represented him the last time around are nowhere to be found. A group of lawyers numbering up to about five decided to abandon ship last weekend, because according to reports, they didn’t agree with Donald Trump’s approach to the defense. So, at the very last minute, he got two lawyers who are real lawyers, who have had careers that have been somewhat impressive, Bruce Castor and David Schoen. They didn’t have a lot of time to put their arguments together, the document is about 14 pages, and if you consider that much of it is quoting from the article of impeachment, and then providing responses to that article, it’s substantially less than 14 pages.

So, brevity may be the soul of wit, but when you’re talking about something as serious as this, they might have done a better job of elaborating their positions, which perhaps they didn’t have time to do. They essentially make two arguments, one, that an impeachment trial can only be heard when you have a sitting president, who is a subject of the article or articles of impeachment. And second, that Donald Trump had an absolute First Amendment right to say the things he said on January 6th, and in the days and weeks leading up to January 6th, and to hold him accountable in connection with an article of impeachment based on what he said is a threat to passionate political speech everywhere.

Now, with respect to the first argument, we’ve talked about this ad nauseam, the constitution, I think, the vast majority of legal experts agree, allows for a trial, even if the officer, president, or otherwise has left office. Because there’s this provision in the constitution that talks about disqualification, and obviously, if you have an impeachment, and then you have removal, by definition, that officer will be gone and a vote on disqualification, if it could only happen with respect to a sitting officer, wouldn’t be possible. So, that doesn’t make any sense. And second, with respect to this case, the actual impeachment by the House occurred while Donald Trump was in office. So, there’s no argument that that impeachment was improper.

And then, the constitution makes very clear that, quote, “The Senate shall have the sole power to try all impeachments.” It doesn’t say all impeachments of people who are still sitting in office or not sitting in office. The impeachment was valid, it happened with respect to a sitting president, now the Senate shall have the sole power. And by the way, that’s kind of moot as a practical matter, because we already had a vote in the Senate, 55-45. 55 senators including five Republicans basically voted in favor of the constitutionality of proceeding on the Senate impeachment trial, not withstanding this argument that the minority of senators, 45, made in the other direction.

With respect to the free speech argument, I think it’s not well taken given the kind of speech that Donald Trump engaged in. It wasn’t just passionate political speech. If you read the 80-page much better written, much more elegant, much more forceful brief filed by the House managers, you will see how they marshaled the facts in favor of the conclusion that what Donald Trump was talking about was not simple protest, was not just expressing an opinion about the election, which might be protected, but rather calling people to arms, calling people to action, inciting them to do what they did on January 6th. Anyway, we’ll see soon enough if the arguments about the First Amendment or the procedural argument moves any senators one way or the other.

This question comes in an email from John who asks, “The Washington Post reported that Manhattan DA Cyrus Vance is considering prosecuting Steve Bannon following Trump’s pardon, do you think Vance has a case here? Is there any question over whether he has jurisdiction?”

That’s a great question. I was pleased to see that article because as you may recall, following the pardon, I said quite clearly that given the nature of the fraud that was alleged against Steve Bannon and three others, it would probably be the case that many jurisdictions, including local DA’s offices, would be able to bring a criminal case against Steve Bannon on the same facts. Double jeopardy almost certainly doesn’t apply because he was merely charged, and that charge will be dismissed, I’m assuming pretty shortly given the pardon.

And remember what the charge was, it was a fraud allegation against Steve Bannon and his co-defendants on the ground that they collected money from people in favor of an organization that would attempt to build a wall, or give funding to build a wall at the Southern border, and in trying to collect those contributions from people who were supporters of the wall and of Donald Trump, they made representations that appear to have been false, that they wouldn’t profit in any way, they wouldn’t line their pockets in any way from those contributions. And the allegation is that Steve Bannon did to the tune of hundreds of thousands of dollars, just like his co-defendant. That’s a garden-variety fraud. There’s nothing special about the federal government bringing that kind of a case versus a DA’s office.

I think he’ll have an easier time if the Southern District of New York shares its information, shares the fruits of its investigation. If there’s grand jury material involved, they’ll have to get a court order. I think that’s pretty proforma in a case in these circumstances. On your question of whether or not he has jurisdiction, I think it’s very, very, very likely if not an almost certainty. There were victims all over the country, I would imagine there were victims in Manhattan, also because the allegations concern financial transactions, either wiring of funds or cashing of checks, or other kinds of things that occur with respect to banks, much of the financial industry is located in Manhattan. And chances are that you have both victims and financial transactions taking place at some point in Manhattan. And so, my expectation would be that office brings such a case.

This question comes in an email from Bridgitte, who asks, “Did you catch Russian opposition leader, Alexei Navalny’s speech in court this week?”

The answer is, yes, I did. And if you haven’t, it’s really worth a listen. Obviously, if you can learn Russian and listen in Russian that would be ideal, but there’s translation available on the internet. Remember, Alexei Navalny is the person who almost certainly was ordered-poisoned, assassinated by Vladimir Putin for having the temerity to question his leadership, and to be in the opposition. After he was poisoned, and came within an inch of losing his life, he got treatment outside of Russia. And then, when a warrant was issued for his arrest, he came back to Russia.

And someone asked me recently, “Why do you do that? Why do you go back to a place where the leader tried to kill you, and you probably will lose your life if you go back?” And the answer is, because he has more bravery and courage than almost anyone on the planet, and that’s how you start a movement, and that’s how you get people to follow you. And at his hearing this week, where he was sentenced to significant jail time, not for any crime that I think rational, reasonable people would recognize, he had the opportunity to address the court, and address Vladimir Putin directly. And he did so in extraordinary fashion, he spoke not only seriously, but also humorously and sarcastically about what had transpired, and what this moment means. Here’s a portion of what he said.

The explanation is, “One man’s hatred and fear, one man hiding in a bunker…” That one man, of course, Vladimir Putin. “I mortally offended him by surviving. I survived thanks to good people, thanks to pilots and doctors. And then, I committed an even more serious offense, I didn’t run and hide. Then something truly terrifying happened, I participated in the investigation of my own poisoning, and we proved, in fact, that Putin using Russia’s Federal Security Service was responsible for this attempted murder, and that’s driving this thieving little man in his bunker out of his mind, he’s simply going insane as a result. There’s no popularity ratings, no massive support, there’s none of that, because it turns out that dealing with a political opponent who has no access to television and no political party merely requires trying to kill him with a chemical weapon.”

“So, of course, he’s losing his mind over this, because everyone was convinced that he’s just a bureaucrat who was accidentally appointed to his position. He’s never participated in any debates or campaigned in an election, murder is the only way he knows how to fight. He’ll go down in history as nothing but a poisoner. We all remember Alexander the Liberator and Yaroslav the Wise, well, now we’ll have Vladimir the Underpants Poisoner. I’m standing here guarded by the police, and the National Guard is out there with half of Moscow cordoned off, all this because that small man in a bunker is losing his mind. He’s losing his mind because we proved and demonstrated that he isn’t buried in geopolitics. He’s busy holding meetings where he decides how to steal politician’s underpants and smear them with chemical weapons to try to kill them.”

INTERVIEW WITH GOLDMAN & SCHIFF:

Preet Bharara:

Stay tuned, there’s more coming up after this. Joining me this week are Dan Goldman and Congressman Adam Schiff. Both of them had crucial roles in the first impeachment trial of former President Trump. Now on the Eve of an unprecedented second Senate impeachment trial, I speak with both of them about what’s to come. Congressman Adam Schiff and, Civilian Dan Goldman, thanks again for coming back on the show.

Adam Schiff:

Great to be with you.

Daniel Goldman:

Yeah, my pleasure.

Preet Bharara:

It’s a little bit deja vu all over again, and I can think of no two better humans in the country to sort of break down, explain to us and to listeners what’s going on with the upcoming Senate impeachment trial, trial number two, for Donald J. Trump. But before we do that, just one housekeeping matter, and I want to let both of you have an opportunity to address this very important issue.

Preet Bharara:

Dan, you may remember that you were on the show last February, and once upon a time, we worked together, you worked for me when I was a US attorney, and I asked you the question, “What was it like to work for the second best boss you’ve ever had?” Referring to your co-guest Chairman Schiff, and you did not dispute my characterization. You said, “It was a great experience, but nothing is like working for you, Preet.” Of course, Dan, do you want to revise and extend your remarks? And Congressman Schiff, would you like to say something to Dan about that?

Adam Schiff:

I would just say that I am totally outraged, I can’t believe what you’re saying, and you must be misquoting him, I’m sure.

Daniel Goldman:

Let’s go to the video tape.

Preet Bharara:

I have the transcript. All right. So, kidding aside-

Daniel Goldman:

Well, let me just say one thing, Preet, because this is a special opportunity for me to be on a podcast with my two former bosses. And so, before we move on, I do want the viewers to make sure they understand the most important lesson that I learned from each of you, and that is, Preet, do you have your Diet Coke? And, Adam, do you have your ice tea?

Preet Bharara:

I do. I do have my Diet Coke right here.

Adam Schiff:

And I’ve got my ice tea, actually, it’s right in front of me.

Daniel Goldman:

See, what a good employee I am.

Preet Bharara:

Although, I don’t have a Diet Coke button of the sort that I understand Joe Biden removed from The Oval Office.

Daniel Goldman:

That’s next for you.

Preet Bharara:

Quick trivia question before we get to the substance, can either of you remind the public how many years ago the last impeachment trial was?

Adam Schiff:

It’s really hard, I think, for both of us to come to grips with the fact that it was exactly a year ago. And when I watched the managers proceed through Statuary Hall, it felt like I was watching time-lapse photography, that I was somehow a spectator to my own events. But I looked and said, “Nope, that’s a completely different team.” But it is so remarkable that here we are again, so soon after the last impeachment, facing another trial, but also having to endure even more egregious presidential abuses in the interim.

Daniel Goldman:

Yeah. My takeaway is as something that you often say, Adam, “I’m shocked but not surprised.” And I think you in particular did a fabulous job at the last Senate trial warning everyone about what might happen if there were no consequences for Donald Trump’s abuse of power. And what we have seen in the subsequent year, certainly was beyond, I think, anything I imagined, although I certainly expected things to get worse, not better. But he went from trying to cheat in an election, which he was impeached for last time, to trying to steal an election, which is what he’s now been impeached for and is facing trial again. And we’re left once again to consider whether there will be consequences, at least, through impeachment for his actions.

Preet Bharara:

When you think back, both of you, on how the trial was conducted and the arguments that were made… And I think you both did an excellent job, and I’ve said that publicly repeatedly, is there anything when you think about the current impeachment issue, anything that you might have said or argued differently that you think could have made any difference at all?

Adam Schiff:

Well, I think not. And you can already get the sense in the procedural vote to find that you can’t constitutionally try former president, just how predisposed these senators are to one result or another. On the merits of that motion, I think the history, the plain text of the constitution and common sense all dictate that, of course, you can try someone even after they’re out of office. After all, it would be intolerable to have a situation where a president interferes with the peaceful transfer of power, and that will always come at the end of a president’s term.

Adam Schiff:

And if they’re successful, they’re president for life, and if they fail, there’s no repercussion, that cannot be what the constitution requires. That would make the constitution a suicide pact. But the fact that even before the trial begins, and even before arguments are heard on constitutionality, you already have 45 senators deciding that they want to find an easy out. It was, I think, even more overwhelming the case a year ago, that the senators were determined not to hear witnesses, not to put themselves in the difficult position of actually having to weigh the evidence fully. So, I’m not sure that there’s much we could have done to alter the result.

Adam Schiff:

I do think that our mission then, and this is part of the mission now, is we realized that we were trying the case to two juries, the jury that is the Senate, and the jury that is the American people. And while the jury that is the Senate was so heavily biased before we entered the chamber, there were at least several tens of millions of Americans who had not made up their mind. And it was to them that we needed to speak and to point out the danger, the basic immorality of this president, the risk of the country going forward. And in that, I think, we were successful. And in that, I think that this new incredible team of managers will also be successful.

Adam Schiff:

I don’t discount the fact that he may be convicted this time, and I hope he will be, but I think the case is equally important to make to the American people, that if not disqualified, he will continue to pose a danger to the republic.

Preet Bharara:

Dan, can I ask you a follow-up legal question? Does it make a difference to the argument about the constitutionality of the trial that the actual impeachment itself was successfully accomplished while Donald Trump was president? In other words, does that just make the argument stronger, or would it be different if President Trump were out of office before impeachment, or even tried in the House?

Daniel Goldman:

I think it makes it a lot stronger, and the equivalent is something that obviously, you and your listeners would understand, which is an indictment. And the statute of limitations on criminal cases requires only that there be an indictment prior to its expiration, not that there be an indictment and a trial prior to the expiration of the statute of limitations. And if the impeachment in the House is the equivalent of an indictment for the purposes of the constitution, then he was indicted, so to speak, prior to the expiration of his term. Whether the trial comes after he leaves is really of no moment in this argument, I think you could have an impeachment after someone is removed from office, or has left office for other reasons, I think that’s very important to be able to do. But there’s no question that it makes it a lot stronger that he was impeached prior to office.

Daniel Goldman:

And just think about the perverse consequences of someone saying, as Adam pointed out, that, “Well, any peaceful transfer of power that is interfered with would have no consequences,” that of course would happen at the end. But you could also imagine a situation where someone just resigns right before the conviction vote. He sees the writing on the wall and he says, “You know what? I’m going to resign. I’m not going to have the conviction.” Are you then to tell me that because he resigned that the senators could not vote on conviction, and could not vote on disqualification? That also makes no sense.

Adam Schiff:

I was just going to add, Preet, and I completely agree with Dan, but one other practical consequence of the impeachment taking place in the House before the president left office is, it would be intolerable to have a situation where a Senate leader like Mitch McConnell could say, “I’m not going to take up the impeachment while the president is in office.” And then, after the president leaves office, say, “I can’t take up the impeachment now because the president has left office.” No one Senate-

Daniel Goldman:

You mean like what he did?

Adam Schiff:

Yes, exactly, exactly. What he’s trying to do anyway. But no one Senate leader should have the constitutional power to thwart an impeachment. I think our founders recognized that a president can commit impeachable conduct at any point in their term, and nothing in the logic of the constitution or its text would compel such a destructive and disastrous result as a Senate leader who could say, “I’m not going to take it up now, and I can’t take it up later.”

Preet Bharara:

So then, I guess people have this question about the speed with which impeachment took place in the House. The insurrection was on Wednesday, January 6th, the impeachment happened a week later. Is it your view that it went that quickly because of how outraged people were because of this legal implication that we’ve been talking about, wanting to get it done before the president left office, a combination of those things? Why the speed if it’s the case, as you both say, that it’s a legal matter, the impeachment could have happened even after Trump left office?

Adam Schiff:

Well, I think that the real motivation for moving with alacrity was that every day the president remained in office, he continued to be a danger to the republic. And so, there was a real sense that we cannot leave him in office a day longer. But also, this was a unique circumstance in which the members of the House and Senate were firsthand witnesses to the misconduct, we were all victim to the insurrection, and so the case was a very public case, is a very public case, that allowed us to move quickly and without having to do an extensive investigation.

Daniel Goldman:

But I would add, Preet, that there was a lot of value that perhaps is still in the dark to moving so quickly, because it was a relatively quiet last two weeks of the presidency, and –

Preet Bharara:

In part, is he got his Twitter taken away.

Daniel Goldman:

Well, he got his Twitter taken away. But there also was this pending impeachment and potential trial, and I think that that was served as a deterrent factor against him going even further than what he might go, recognizing that the senators are going to have to deal with this issue beyond January 20th. And that’s also another reason, of course, why it’s so important to have this impeachment trial, is deterrence not necessarily for Donald Trump, but to anyone else who would consider similar actions in the future. There needs to be a marker laid down that says, “If you do this, you will be impeached, and removed, and disqualified from office.” So, at least, we are setting some of the guardrails around what an abusive power is for future presidents or elected officials.

Preet Bharara:

Do either of you think it had a real regulating or chilling effect on Trump’s conduct? For example, do you think it had an effect on the pardons that he chose to give including, as far as we know, no self-pardon, no pardon for members of his family? Because he was worried about a potential vote in the Senate, and that he was maybe deterred, as you say, Dan.

Daniel Goldman:

I do think so. I think there would have been pardons for some of the rioters, I think there may have been pardons for his family members, sort of preemptive pardons, we can imagine no bounds that he would have gone to abuse the power of his office, but there were rumblings out there that he was somewhat circumspect about doing some of these more outlandish or egregious things because of the pending impeachment.

Adam Schiff:

And I would agree. I think that if he had any lawyers worth their salt in The White House, they were undoubtedly telling him, as he was staring down the barrel of another impeachment, that any action he took to inflame senators further would increase the chances of his conviction. I find it in explicable that he didn’t give a whole host of pardons to family, maybe even himself, for any other reason. I think that if he’s acquitted again, there is the risk, of course, that he learned exactly the wrong lesson from that. And one of the things that made me a convert to the first impeachment, and for a long time as we were doing the Russia investigation and Mueller was doing his work, I was resisting calls to impeach the president. I wanted to make sure that we finished our investigation, we knew all the facts.

Adam Schiff:

But what persuaded me to move along the impeachment track was, one, the discovery of new and more egregious conduct in his effort to get Ukraine to help him cheat in the election by withholding hundreds of millions in military aid from that country. But the fact that he engaged in that conduct the day after Bob Mueller testified, that he was back on the phone, this time with Zelensky trying to enlist another foreign power to help him again. He had clearly learned the lesson that escaping accountability the first time was empowering, and having escaped accountability the second time in the impeachment, he would go on to do new and even worse things.

Adam Schiff:

And I continued to worry that if he escapes accountability in this impeachment now, he will feel once again at liberty to engage in new and more destructive conduct, in just the way that we warned during the last trial, that if he was left in office, we could expect him to try to cheat again. If he’s not disqualified from office, we can expect that in four years, he may very well try to cheat in new and more destructive ways.

Preet Bharara:

So, both of you have mentioned issues that I think bring out the tension in the following two things, one, you want to proceed with all deliberate speed and get resolution. And maybe the clock was ticking a little bit for both political and legal reasons with the president’s exit from office, and also the danger he posed every day he remained in office. But on the other hand, balanced against that, is the need you have in any kind of investigative proceeding to get as much evidence as possible, to interview as many people as possible, to get as many documents as possible.

Preet Bharara:

I mean, both of you, when your teams got criticized for moving so fast the last time around, and that was over the period of weeks and a few months, and there were staff-run depositions and interviews, and then there were proceedings held in the public forum, in the House. Here, do you think there’s something lost both in the House proceeding and also in the upcoming trial by not having the opportunity to do as many interviews, to find out to the greatest extent possible how much involvement the president’s campaign may have had in setting up the January 6th rally, calls that the president made to various people, what was in his mind, et cetera, et cetera? How do you balance those two things against each other going forward?

Adam Schiff:

I guess I would balance it in this way. At some point during the last trial, I remember Lamar Alexander, I think it was, going on one of the Sunday shows and saying something along the lines… In an effort to defend his vote against hearing witnesses, something along the lines of, “The House has already proved its case five different ways, do we really need them to prove it six different ways?” And I’m paraphrasing here. I think the same situation is present today, which is the House managers can prove this case five different ways. If we took additional time to do additional investigation, maybe we could prove it six different ways. But would it matter to the senators that you proved it six different ways, instead of five?

Adam Schiff:

There’s, I think, undoubtedly the prospect of further evidence with the passage of time, where there are people, for example, warning the president, “Mr. President, there are bad people coming to this rally, violent people, you should not go, you should not speak to that crowd. And if you do, you darn well need to be very careful about what you say, or you’re going to incite an attack on the Capitol.” Was he given warnings of that nature? What are the circumstances around the deployment of the Guard or non-deployment of the Guard? There was certainly more that can be learned with the passage of time, but you have to ask, is it worth the time that the trial would hang over the country to pursue that additional evidence when you have recordings of the president on the phone with the Secretary of State in Georgia?

Donald Trump:

I just want to find 11,780 votes, which is one more than we have, because we won the state.

Adam Schiff:

I mean, the evidence is so abundant, so graphic. His speech at the mall that day so public that you really have to evaluate the additional increment of evidence you would get over time, is it worth the time it would take? And I think the answer is probably no.

Daniel Goldman:

And, Preet, I would just analogize this to what you and I had so much familiarity with, and Adam as well in his prior career, is prosecutors versus an impeachment process. I think for an impeachment process and an impeachment trial, you don’t need every detail that you would need in a criminal case. And for example, in a criminal case, because of the high standard of mens rea, you need to understand the president’s state of mind. If he were to be charged for any of his conduct, I think you would want… Whether you need to or not is a different question, but you would want to have a sense of what he knew about the public plans by his supporters and the protestors to storm the Capitol that proceeded January 6th, and it was out there in the public.

Daniel Goldman:

If you’d want to understand how much he knew about that, you’d want to have that information about what happened in much greater detail after the riots started, and he’s watching on TV, and what did he say? And who called? And what did he say about the National Guard? And why did Larry Hogan, the Governor of Maryland say it took two hours for his National Guard to get authorization to come in? You would want all of that for a criminal case, but in an impeachment case, I treated… And I think Adam and I both really approached the last impeachment investigation as we would have approached a criminal prosecution, or criminal investigation.

Daniel Goldman:

I think in the end, and for the reasons that Adam said about Lamar Alexander and saying, “We proved our case, but we’ll leave it to the voters,” I think in the end, impeachment is a different animal, and the-

Preet Bharara:

Well, in part, it’s a different animal, because it’s still confusing as to what the animal is. I mean, you made a reference to the high burden of proof, and everyone knows, to be convicted of a crime, there are elements that are set out, you have to prove each of them beyond a reasonable doubt. You know what the standard is, it’s different from a civil standard, preponderance of the evidence. Here, there are no elements, there are no instructions to the jury, meaning the 100 senators. And to this day, I don’t think anybody can actually explain what the standard of proof is. Can you? Isn’t it just whatever each individual senator thinks is the level of proof required to earn that particular senator’s vote?

Daniel Goldman:

Or what a high crime is?

Preet Bharara:

Right. It’s very vague, gentlemen.

Daniel Goldman:

And I do think that… There were Republican senators the last time who explained their vote for acquittal to say that they didn’t think that the Ukraine conduct… And they would of course narrow the focus just to the phone call, but that they don’t, I think, improperly narrow it, but they didn’t think that rose to the level of a high crime and misdemeanor. And I think to Adam’s point, there’s no question that what the president did from November 3rd through January 6th was a high crime, and that it is an impeachable conduct.

Daniel Goldman:

So, I don’t expect that anyone who votes to acquit the president will use that justification here. And I think they know that, and that’s why they’re focusing so much on this flimsy legal, constitutional rationale, that you can’t have a trial after someone is removed, because they can’t use the same rationale they used last time.

Preet Bharara:

Well, if I might ask the congressman and push on this a little bit, so members of the public understand the argument, so the article of impeachment is about incitement to insurrection, and Donald Trump certainly is incendiary and urged people to march to the Capitol, he said, “I’m coming with you.”

Donald Trump:

We’re going to walk down and I’ll be there with you, and I’m going to be watching.

Preet Bharara:

That was a lie, he didn’t go with them. But it is true, and presumably his lawyers, if he ever secures them, will make some of these points beyond the procedural points, Donald Trump did not say, “Invade the Capitol.” Donald Trump did not say, “Break windows.” Donald Trump did not say, “Engage in violence.” Donald Trump did not say, “Insurrection.” He did not say, “Riot.” He didn’t say any of those things, does that make a difference? And if the impeachment lawyers on behalf of Donald Trump make that argument in full or form than I just made it, what’s the rebuttal to that?

Adam Schiff:

I think the rebuttal to that… And they may very well make that argument. The rebuttal to that is you look at the course of the president’s conduct leading up to the insurrection, during the insurrection, and what you see is a president pushing out endless lies about the election being rigged, essentially laying the foundation for millions of Americans to discredit their own country’s elections, their own democracy. You have that conduct with the president trying to get the Georgia Secretary of State to magically find votes that don’t exist. You have all the Stop the Steal falsehoods being propagated before that rally on the mall. You have incendiary comments during that speech on the mall.

Donald Trump:

We will never give up, we will never concede, it doesn’t happen. You don’t concede when there’s theft involved. Our country has had enough, we will not take it anymore. We will stop the steal. We will not let them silence your voices. We’re not going to let it happen.

Adam Schiff:

And I think you can demonstrate quite easily that the foreseeable consequence of what he was doing was that attack on the Capitol. And that range of conduct is an extraordinary abuse of the power of the presidency, that it is an unprecedented effort to interfere with a peaceful transfer of power. That here he was telling this mob, essentially, that they were going to have to fight or they were going to lose their country. And that this was their one opportunity, because he had tried everything else, failed in the courts and failed with the local electors, and failed to get the Secretary of State in places like Georgia to cheat. This was their one chance, and Mike Pence better do the right thing.

Adam Schiff:

And so, I think that the case is a very powerful one, that what that mob did was the foreseeable consequence of what Donald Trump did. And as Dan was pointing out, this isn’t a criminal case like you would have with a very high burden of proof to a jury. The ultimate test here is, is this conduct in office compatible with the oath to uphold the constitution, and faithfully execute the laws?

Adam Schiff:

And I don’t see how anyone can conclude that that conduct that resulted in that attack on the Capitol is consistent with his oath, with his duties, with his presidential powers. But I fully expect you could find a lawyer to argue anything, and they will find a lawyer to make the contrary argument. If the last four years have shown us anything, it is that Donald Trump will find people to carry his water no matter how dirty that water may be.

Preet Bharara:

Yeah.

Daniel Goldman:

And if I could just add a couple of additional considerations, one is… And I’m sure the impeachment managers will grab this video, throughout the last four years, Donald Trump has quite overtly referenced physical violence and encouraged physical violence, and particularly at his rallies. So, he has a curated macho reputation as being a tough guy who supports violence. I mean, Charlottesville was one example where he somewhat endorsed the violence by the Neo-Nazis, and there were other times where there were people getting protestors at his own rallies, so he would refer to violence. I think that’s relevant to what the impression of the protesters was, and what their interpretation of the words is.

Daniel Goldman:

The second thing, Preet, which you I know had experience with, and would certainly push forward in a criminal trial is, he talks like a mob boss. He is not going to use those words you referenced like, “Go execute an insurrection, go riot, go storm the Capitol.” He never would actually say those words, just like a mob boss would not say, “Go kill that person.” The mob boss would say, “Can you please take care of this?”

Preet Bharara:

“Take care of him.” Right.

Daniel Goldman:

Exactly.

Preet Bharara:

“Take care of it.”

Daniel Goldman:

And that’s when he says, “Go fight.” Or, “If Mike Pence doesn’t do the right thing, bad things will happen.” That’s violent talk, everyone understands that. And if you have any question as to whether they understood it or not, just wait until we see all of the Parler videos from social media of the people who attended his rally, who were going to the Capitol and saying that the president told us to storm the Capitol. They understood what he was trying to say.

Preet Bharara:

We came at his invitation. Look, that’s why I think connected to all of this, and I think the Congress had mentioned this earlier, I think very powerful evidence as to the president’s state of mind at the rally earlier in the day is the reaction he reportedly had when he saw the violence taking place. He did not condemn it immediately.

Daniel Goldman:

Absolutely.

Preet Bharara:

He didn’t tell them to stop. According to the reporting, he was kind of joyful about it. That tells you a lot about what was foreseeable, what he intended, and how he felt about the use of violence. I think any normal person, responsible person in authority would have been mortified and horrified, that somehow a band of supporters, who he hypothetically was hoping would be peaceful, turns into marauding, beating, violent mob. And there’s no evidence that he thought that, I think that all in combination is of course very important.

Adam Schiff:

I think you’re absolutely right. Some of the most powerful evidence of what he intended, what he hoped, what he was pleased with, is his reaction while that violence was going on. And when you consider the duties of his office, the fact that he did nothing to stop it while it was happening, and if anything, seemed to enjoy what was going on, is very powerful proof that this was what he intended, what he foresaw-

Preet Bharara:

What he wanted. Yeah.

Adam Schiff:

… and was gratified by the results.

Preet Bharara:

He said, “I love you.” He said, “I love you,” to these people, in addition to saying the other things that his staffers got him to say.

Donald Trump:

We have to have peace, so go home, we love you, you’re very special.

Daniel Goldman:

That was in his speech that he was coaxed and coerced into giving in order to stop them from storming the Capitol. He said, “We love you.” I mean, it was absurd.

Preet Bharara:

We’ll be right back to my interview with Dan Goldman and Adam Schiff after this. So, I take it from both of you that the conduct that’s at the heart of the second impeachment is worse, and more dangerous, and more harmful than the conduct at the heart of the first impeachment. And Dan will be familiar with my doing this, and not everybody likes to answer this question, but if you were to say on the spectrum of impeachment [inaudible 00:41:00] high crimes and misdemeanors, the Ukraine affair with respect to Donald Trump was say a six on a scale of one to 10, where do you place incitement, insurrection?

Adam Schiff:

Well, I wouldn’t give the Ukraine misconduct a six.

Preet Bharara:

Well, I’m doing that for comparison purposes. Where would you put Ukraine and where would you put this?

Adam Schiff:

I just want to remind people because it has been a year, and a year is a hell of a long time during the Trump era. What was involved in the Ukraine misconduct? This was a president who withheld a $400 million in military assistance to an ally that was at war with Russia, and losing people every week in that war, to coerce them to help them cheat in the election by smearing Joe Biden. That’s a pretty high bar that we start out with to compare the insurrection, but the insurrection clears that, and I think it clears it by a mile. It made this president the first in history to seek to interfere with a peaceful transfer of power.

Adam Schiff:

He engaged in conduct that we see from despots around the world, and tragically, we are seeing mirrored in Myanmar now as they are relying on the same bogus claims of election fraud that Donald Trump was propagating. So, it’s hard for me to see the incitement of this insurrection as anything but a 10 out of 10 in the scale of egregious abuse of power wherever you might put the Ukraine misconduct on that scale.

Preet Bharara:

Dan, do you agree?

Daniel Goldman:

I do. I’m sitting here trying to sort of imagine a more serious crime than trying to overturn a lawful election in our democratic system of government. I can’t really-

Preet Bharara:

With violence, with violence.

Daniel Goldman:

Yeah. Well, with violence, absolutely. I just think from the basic premise that the most fundamental aspect of our system of government is voting and our free and fair elections, and the fact that everybody is accountable to the public, and that has been at the very core of our system of government for 250 years, and it is what makes us different, and has separated us from everything.

Daniel Goldman:

And for Donald Trump to dress up his claims with legal claims, which quickly fell away, and then just to completely and outrightly try to steal the election, the call with Raffensperger, what was going on with the attempted coup within DOJ to interfere with the Georgia thing… And I’m sure there’s a lot more that we don’t know about, but that just goes… I mean, that really, really strikes at the heart. Ukraine does too, but I think there’s a difference in trying to cheat in the election, and to steal an election. And ultimately, I mean, we’re talking about a fine line here, but-

Preet Bharara:

Yeah. But look, if you imagine, if you go to the thought experiment and think about what was intended, and what could have happened with respect to the heart of the second impeachment, the insurrection on January 6th, you’re talking about dead congressmen, right? You’re talking about potentially bombs in the Capitol, much, much worse than actually happened, and that’s just on any scale as horrifying a thing you can imagine for Americans to be doing in this country, and for it to be fomented and incited by the sitting President of the United States, is almost unthinkable.

Adam Schiff:

I completely agree. Trump once proudly boasted, as we know, that he could shoot somebody in the middle of the street, and he would still not lose his supporters. What he did on January 6th resulted in the deaths of several people, including Capitol police officers, one who was killed that day, two others who took their lives not long thereafter. And so, we did see a loss of life in the course of an effort to, as Dan is pointing out, overturn an election, and maintain himself in power when he had clearly lost. And it is really difficult to contemplate an injury to the constitution more profound than that one.

Daniel Goldman:

I know you both will remember Fiona Hill, the witness in the first impeachment, who was so brilliant and so impressive, she wrote, I thought, a great article, and she has studied obviously coups and all sorts of different types of insurrections. And she said this was a self-coup, similar to what happened in Venezuela, but that that just because it failed does not mean that it was not a coup, it was a coup attempt. We stood our ground as a country, and Congress did by going back in and making sure that, not withstanding the trauma of that day, they stayed up until two o’clock in the morning in order to certify that election, and make sure that our democracy continued to pace. But that’s what this was, it was a coup attempt, and we should not mince words about it.

Preet Bharara:

There’s a question that I’ve gotten from some folks, including from a federal district court judge, Dan, that you and I both know, but I won’t mention her name here, and the question is, why the one article? Would there have been some argument in favor of having more than one article, maybe even just two articles, and split off the whole business with the call to the Secretary of State in Georgia, Brad Raffensperger, for among other reasons to give jurors a choice, split their verdict, be able to bring in other evidence? Do you have a thought about what their thinking was there?

Daniel Goldman:

I’m going to jump in here, and I don’t know if Adam has thoughts about this, but I’ve been getting this question a lot, and I’m not surprised that it comes from a district judge. Because I think lawyers have a really difficult time getting our minds around a Senate trial related to impeachment, but the more that we try to equate it to a courtroom trial, I think the further afield we get. It’s just not like the trials that we are used to. And I’ve now been through it, and that’s one of my big lessons that I learned is, I thought, all right, this is a trial, I’m used to trials, we can do this, we can prepare for this… Part of what our presentation was last time was based on what we would do in a closing argument in terms of the audio visual display, et cetera, in a normal trial. But there’s no judge, there’s no judge in this trial, and it doesn’t matter if it’s Chief Justice Roberts or Patrick Leahy, Chief Justice Roberts did not make a single dispositive decision in the last trial. And that’s because the senators are the judge and they are the jury, and they make the rules, and they determine everything.

Preet Bharara:

And in this case, also the victims-

Daniel Goldman:

Also the victims.

Preet Bharara:

… and some subset arguably co-conspirators.

Daniel Goldman:

Maybe. And you know what?

Preet Bharara:

You have multiple grounds to strike, for a cause, every single Senator, if this was a real trial.

Daniel Goldman:

Of course, and no one will be stricken, and that’s just not the way that it’s going to work. As you say, there are no elements of the offense that you can go down, and for that reason, I frankly don’t really think the text of the article, or whether it’s one, two, or three really matters that much. At the end of the day, the charge is a serious charge, and it is provable, and there will be evidence to prove it, but it includes the language about the Raffensperger stuff. There’s also no one there to say, “Oh no, you can’t talk about something from three years ago, that’s not admissible here.”

Daniel Goldman:

Everything is admissible, there are no rules of evidence. It’s basically, do you think this conduct is so egregious that I cannot withstand a constitutional scrutiny? But ultimately, it’s a political decision, and the senators are going to decide where the winds are blowing politically, and that’s what’s going to dictate the outcome.

Preet Bharara:

Right. One thing that just occurred to me as you were speaking was… And then, I want to turn over to the Congressman. One thing that cannot happen at the Senate trial in any way that I can think of, and is always a risk at every trial that all three of us have overseen, or seen, or participated in ourselves, there’s nothing that can precipitate a mistrial, right? No matter what a senator does, or says, or introduces, there’s no mistrial, that’s kind of interesting too. Chairman Schiff.

Adam Schiff:

You’re absolutely right about that, Preet. I think there is a real merit to simplicity, because we are trying this case to the American people as we’re trying it to the senators, when we considered what articles to bring in the last impeachment, there were many who wanted a much larger set of articles that dealt with violations of the Emoluments Clause, that dealt with obstruction of justice, and we certainly could have done that, but it would have been a much more complicated trial. And we’re not dealing with a traditional jury, we’re not dealing with a traditional burden of proof, and I think there is a great merit to bringing the strongest case you have, making it as crystal clear as you can.

Adam Schiff:

It is certainly not the case that if you had two articles, one based on the president’s Georgia misconduct and a separate one based on the insurrection, it is certainly not the case that you’re going to get senators to distinguish between the two. I just don’t think that a senator is going to say, “I think it’s constitutional to try the president after he’s out of office on one article, but not on two, or in two, but not one.” Or actually get into the substance on each article, that gives the Senate probably far more credit than we can, because it is a political body.

Adam Schiff:

We would expect that of a jury in a criminal trial, we’d hope for that in a jury with a criminal trial, but here we’re dealing with a very different animal. And so, I think the desire to keep it simple and keep it strong really militated in favor of a single article. So, I think that was the right call.

Preet Bharara:

Yeah, I think streamline makes sense, and also there was a matter of timing. Here’s another question I’ve gotten, I don’t know what your reaction will be to it, and that is, why a whole new team of House managers? And people have said, “Why can’t we have Chairman Schiff back for the second go around?”

Adam Schiff:

I think that this trial is not an extension of the first trial, this is a brand new offense and a brand new case. And I think it makes sense to have a brand new team presenting it. And I think the speaker chose just the right person in Jamie Raskin, who is a brilliant constitutional lawyer, to lead the case particularly where a constitutional issue is front and center, and picked a wonderfully talented group of managers that reflect the diversity of the country. So, I think it helps frankly make the case from the very beginning, that this is a different case, this is a different and even more severe offense against the United States. So, I appreciate the question, but I think the speaker made exactly the right decision. Although, you could still have those new managers and have Dan Goldman again, and then you’d have the best of both worlds.

Preet Bharara:

I was going to say… Dan, instead of talking to me, do you wish you were in DC helping prepare for this trial?

Daniel Goldman:

I do not. I’m happy to be on the sidelines this time, it was-

Preet Bharara:

May I remind you that you’re under a podcast oath…

Daniel Goldman:

Yes, no. The impeachment process kept me away from my family for about five months, so-

Preet Bharara:

Just one time.

Daniel Goldman:

… I’m happy.

Preet Bharara:

Once is enough for you.

Daniel Goldman:

One and done, and it’s a great… Barry Berke who, Preet, you and I know very well, is a fabulous criminal defense lawyer here in New York City is leading the staff. And Barry and I worked very closely last time around, so they’re in really good hands.

Preet Bharara:

Compared to the culpability of Donald Trump, where do each of you place Senator Josh Hawley and Senator Ted Cruz on that spectrum?

Adam Schiff:

Well, I have to tell you that this has been one of the most difficult things for those of us in Congress to wrestle with, which is the fact that so many of our colleagues played a vital and destructive role in this insurrection, in propagating the big lie well before the insurrection took place, and there’s no escaping their own culpability. I mean, even after the Capitol had been attacked, even while there was still literally blood on the ground, we went back into session and they were picking up right where they left off as if nothing had happened. Preet, when I watched footage of people accosting members of Congress as they were flying home after that insurrection, people had participated in that insurrection and were heckling members on the plane and in airports, you could see that these people were true believers, they believe the big lie.

Adam Schiff:

The people I serve with in Congress, they know it’s a big lie, and they were content to push it out anyway, because it was politically advantageous, it was consistent with their ambition, and in a way, that’s just, if not, more disturbing, because they were doing it so willfully. So, there is a lot of culpability to go around in the Congress of the United States with what the president did among these members that helped egg on this crowd, and then participated shamefully in seeking to overturn the results in Congress. And we’re having a vigorous debate within the Democratic caucus in the House about what should be done about it, about some of the ringleaders in the House.

Adam Schiff:

And I know they’re debating the same thing in the Senate, what should be the repercussions? What do we do about members who continue to want to bring guns on the House floor, or continue to propagate lies about the election, or about the Parkland shooting, or God knows what else, as the speaker put it? So, painfully and pointedly, we have to deal with an enemy within, and colleagues who have been encouraging of violence on other members of Congress. We haven’t resolved that yet, we’re really trying to come to grips with it.

Preet Bharara:

So, how does that play out? In my time in the Senate working for Senator Schumer, there were many senators he disagreed with, but there was no member with whom he would not co-sponsor a bill if he agreed with the legislation. And he was a big fan of, as are most members of bipartisanship, when it’s possible… There was a back and forth between Ted Cruz on social media and Alexandria Ocasio-Cortez about dealing with a particular issue that’s come up recently, and she said, “No, thanks, I’ll work with some other Republican.” Do you congressmen… Have you ever drawn a line before about who you would work with based on something unrelated to the legislation? And would you also consider drawing a line and literally not work together with a member of Congress who you think was guilty of inciting insurrection, or causing and abetting violence at the Capitol?

Adam Schiff:

Preet, that’s a good question. I mean, there are certainly members after this experience that I really want nothing to do with. Now, I also have to figure out very pragmatically, a majority of the Republican members on the Intelligence Committee voted to de-certify the results even after the failed insurrection, what do I do about that? I need to get the work done of the Intelligence Committee. Devin Nunes is the ranking member of that committee. There is a lot of work that we must do to set the funding levels for the intelligence agencies, make sure they’re observing the law, and privacy, and civil liberties. Do I not work with him? I have to work with him, but there are still others who I don’t have to work with, and I don’t want to work with after this experience.

Adam Schiff:

I guess, I’m fortunate that there are… Such a large membership in the House. There are plenty less culpably involved in this insurrection that I can work with. But when you’re dealing in close quarters, as we are in the intel committee, it becomes very challenging. And I wish there was a bright-line I could draw, but the reality is, I need to get the work of the committee done. I’m going to try to work with the Republicans on my committee, because there’s just no alternative, and the work that we’re doing is too important, but it’s going to be difficult.

Preet Bharara:

Dan, if we could talk about your view of how the FBI and other authorities have been investigating the actual mob, the rioters, the people who went into the Capitol, the people who engaged in the violence, what’s your reaction to how slowly it’s going, or quickly it’s going, the pace, the nature of the charges? What do you think?

Daniel Goldman:

I think it is just a massive, massive undertaking that has actually moved rather quickly from my experience in criminal investigations. My fear is actually that it moves too quickly, and that-

Preet Bharara:

Can we just pause on that for a second? I mean, it sounds like you’re talking about accelerating activity that took place some days after the event, can we break it down this way first? With respect to what happened on the day of the event, and then two or three days after, there were almost no arrests, there was almost no basis to think that there was a lot of investigative activity. All these people that are now being investigated went back to where they came from, and now videos are being looked at to try to identify those folks. So, do you distinguish between the immediate period and the later period?

Daniel Goldman:

Yes. And I think that’s a very good point. I was surprised that there was not more around the clock activity immediately following. I mean, we saw a video in various hotels of all of these protestors just hanging out in the hotel lobbies the night of January 6th after the whole thing happened, and that was very odd to see. I think though that the broader investigation is massive, and I think that it should go far beyond trespassing or unlawful entry. It is a federal crime to impair or impede or delay an official action, or official process of Congress, I can’t remember the exact language. I mean, there are more serious crimes, not to mention seditious conspiracy.

Daniel Goldman:

And so, it’s going to require a lot of effort to comb social media, to interview witnesses, and I do think at some point, it’s going to have to go beyond just the insurrectionists and also into the organizers of the event, the organizers of the mob insurrection, and those people who may still be in Congress, who might have tried to assist with tweets, or with scouting the geographic landscape of the Capitol and other areas of Congress, which apparently a lot of these folks had. It’s just going to be a month’s long undertaking. But I do agree, you need… As always, as you know better than I, you need to remove the dangerous people from the streets initially, and then conduct the investigation.

Preet Bharara:

In real time. Real time.

Daniel Goldman:

Yeah, exactly.

Preet Bharara:

Do you think, Chairman, that Congress also needs to undertake a serious… Beyond this impeachment proceeding, that Congress needs to undertake a serious and broad-based lengthy investigation of the events that led up to January 6th?

Adam Schiff:

Without a doubt. And indeed, in our committee, working with other committees, we’ve already begun. I’m particularly focused on the intelligence issues, that is, what intelligence did we have prior to January 6th of who was coming to this, and the potential for violence? Was that intelligence shared? If it was shared, why wasn’t it acted upon? Where was the breakdown? But also, more broadly, we have been pushing the FBI and the Department of Homeland Security for some time to place a greater priority on the danger of domestic terrorism from these white nationalists. One of the issues that I took up with the agencies recently, that document that was released just about a week ago, that National Threat Assessment document, it basically warned of domestic violence from those who were upset over the election, those upset over COVID restrictions, and those upset about police violence.

Adam Schiff:

And when I read those three very different categories lumped together, I have to say, it made me wonder, are we seeing the same kind of problem that we have seen for the last four years with the politicization of intelligence around Russia, where the Trump appointees were so determined to bury anything critical of Russia, that if they were going to be public about what Russia was doing to interfere in the 2020 election, they had to throw in China, and Iran, and Venezuela, and others just to obscure the actor who was posing the greatest threat to our elections? Is that happening with this scourge of white nationalist domestic terror?

Adam Schiff:

And so, I think we have to look into those issues, as well as the what went wrong, January 6th? Frankly, and this is maybe not the subject of investigation, but a lot of soul searching we need to do, we came really close to losing our democracy. Donald Trump came very close to succeeding, and I don’t mean on January 6th, but had a few more local elected officials not been willing to do their job with integrity. Had a few more statewide elected officials, like the Georgia Secretary of State up and willing to stand their ground. Had a few judges not follow the facts and the law.

Adam Schiff:

We could be in a really different place as a country. And of course, had millions of people not braved a pandemic, and determined efforts to disenfranchise them, and persisted in voting, we would be in a really different place as a country. And I think we have to appreciate, with the biggest lens possible, how close we came to losing our democracy, and how much we needed to do to safeguard it going forward.

Preet Bharara:

Dan, can I ask you this question? Suppose at the Senate trial there’s an acquittal, and the Department of Justice has to at least consider looking at the events leading up to January 6th, as it relates to Donald Trump, do you think the fact of an acquittal bears or should bear on a decision with respect to the Department of Justice looking at potential violations of statutes, the insurrection statute, or seditious conspiracy, as they may pertain to Donald Trump, the former president?

Daniel Goldman:

Well, without sharing on any views about whether there should be a criminal investigation or not related to Donald Trump, I don’t think that the Senate trial should have anything to do with what occurs in the Department of Justice. That decision should be made entirely separately for the reasons that we discussed. The impeachment in the Senate trial is a completely different animal than what occurs in a court of law and a criminal investigation, and so-

Preet Bharara:

There’s no formal double jeopardy, obviously.

Daniel Goldman:

No, of course not. And the fact that the senators made a political calculus perhaps based on incorrect interpretation of the law, which I think the Department of Justice would probably view that question differently than the 45 who seemed to say that it’s unconstitutional to have a Senate trial after someone has left office, it won’t be a question for them, but it’s a completely different animal that has no bearing on what the Department of Justice does.

Preet Bharara:

Can I ask you, Congressmen about one of your colleagues, the No. 3 Republican in the House, Liz Cheney voted in favor of impeachment, made a strong statement, she’s about as conservative as they come, I believe.

Liz Cheney:

What we’ve watched over the course of the last several weeks certainly tells us how fragile our system is. And certainly, as we all watched yesterday, the peaceful transition of power that’s really at the heart of our Republic, all of us have an obligation to the constitution, an obligation to do what we believe is right, what our oath compels us to do, that is above politics, above partisanship.

Preet Bharara:

How do you feel about the action she took, whether she deserves any credit or not? And are you surprised at all by the reaction against her by other colleagues in the Republican caucus, including Matt Gaetz?

Adam Schiff:

I have been quoting for the last four years Robert Caro, and I hope he said this, because otherwise, I’ve given him way too much credit. But I’ve been quoting him for something he wrote that power doesn’t corrupt as much as it reveals. And over the last four years, we’ve seen what power reveals about a lot of people. We’ve seen a very different Bill Barr under this president than we saw under George Herbert Walker Bush. I think the power that Bill Barr was given by Donald Trump revealed just how craven an individual he turned out to be on what he was willing to do to pervert the independence of the Justice Department. But even Bill Barr reached a point where he could go no further.

Adam Schiff:

I don’t give him a lot of credit for that because frankly, he was willing to travel down that road a great distance. And others who have jumped ship like the Betsy DeVoses and the Mick Mulvaneys at the last moment were trying to save their own reputations, not the republic, members of the Congress, very much the same. Members of Congress campaigned for Donald Trump, they wanted four more years of this man, knowing that he was lying to the country about the election, knowing the damage that he had wrought. But some members of Congress, certainly 10 of them, decided after the insurrection that they could go no farther. And I’m grateful that they didn’t go further in exonerating this dangerous president, but they went a very long distance down the road to ruin.

Adam Schiff:

So, I think that each of the members is in a uniquely different place in terms of their culpability. You’ve got the Matt Gaetzes who are still out there now, unapologetically, and thrilled to be the most ardent defender of this immoral destructive person.

Preet Bharara:

Mr. Chairman, Adam Schiff, Dan Goldman, thank you for coming on the show again, and as always, thank you for your service.

Adam Schiff:

Thank you, Preet, great to join you.

Daniel Goldman:

Yeah, absolutely, it was a lot of fun.

Preet Bharara:

My conversation with Dan Goldman and Adam Schiff continues for members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON:

Preet Bharara:

I want to end the show this week talking about something very sad and tragic that happened. And in the din of all the news about impeachment, and the new administration, and everything else, I wanted to make sure it didn’t get lost in the noise. At around 6:00 AM on Tuesday morning, two FBI Special Agents were killed and three were injured in a shootout in Sunrise, Florida. What were they doing? They were executing a federal court ordered search warrant.

That warrant was in connection with an investigation of child pornography, and the man under investigation for violent crimes against children had reportedly barricaded himself inside the complex, and was later found dead. Authorities believe the man killed himself before the agents could get to him. I want to recognize the sacrifice and service of the two FBI Special Agents who died, Daniel Alfin and Laura Schwartzenberger. Agent Schwartzenberger was 43 years old, a mother of two from Colorado, and had been with the FBI since 2005. She spent time working on the Innocent Images National Initiative, part of the FBI cyber crimes program which was established to fight the spread of child sexual abuse images online.

Special Agent Alfin was 36 years old, a father of one from New York, and had been a Special Agent since 2009. He had been assigned to the Miami Child Exploitation task force. He played a key role in the 2015 arrest of a man who ran what the Bureau called the world’s largest child pornography website. Both of these brave agents dedicated their lives to protecting children from abuse, and died in the line of duty on Tuesday doing just that. Tuesday shooting was one of the worst in FBI history, and it was the first time since 2008, that FBI Special Agents were fatally shot in the line of duty.

As Josh Campbell, a former FBI agent wrote on Twitter in the wake of the news, quote, “I never knew the FBI heroes killed today while investigating crimes against children, but damn, my phone has been blowing up with messages from those who knew them. Their work was focused on protecting the most vulnerable among us, America’s kids. May their memory be a blessing.” End quote. President Biden had this to say, quote, “My heart aches for the families, they put their lives on the line, and it’s a hell of a price to pay.” End quote.

I found the news particularly hard to digest and think about on Tuesday evening. As I was reading about these two Special Agents who had died in the line of duty, at the same time, the Capitol police officer, Brian Sicknick was being honored in the rotunda of the Capitol. Multiple law enforcement agents, just doing their jobs, killed in the line of duty. And I think it’s important to remember their work, their sacrifice, and to honor them. My deepest condolences to the families. Thank you for your service, may you rest in peace.

Well, that’s it for this episode of Stay Tuned. Thanks again to guests, Dan Goldman and Adam Schiff. If you like what we do, rate and review the show on Apple Podcasts, or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @preetbharara with the hashtag, #askpreet. 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 staytuned.cafe.com.

Stay Tuned is presented by CAFE Studios, your host is Preet Bharara. 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 Wiener, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Malley. Our music is by Andrew Durst. I’m Preet Bharara, stay tuned.