Escalation

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In the days after the January 6th insurrection, for Raskin and his colleagues, it wasn’t entirely clear that the insurrection was over. And for at least a brief moment, there seemed to be some kind of consensus. 

The moment turned out to be brief indeed, at least with respect to accountability for Trump himself. Within a week, the consensus had devolved into a sharp partisan divide. The House had passed an article of impeachment charging Trump with incitement to insurrection—but only a small handful of Republicans supported it. Less than two weeks after that, President Biden had taken office and Raskin was prosecuting the former president in Trump’s second Senate impeachment trial.

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In the wake of January 6, there were immediate calls for en masse arrests of all individuals on the Capitol compound, and demands that every one of them be hauled into court to stand trial. 

But our justice system does not work that way. The bedrock of our legal system is the due process of law. You can’t be tried for being part of an insurrectionist mob, only for the specific things that you did–or, more precisely, what prosecutors can prove you did.  

January 6, is not one case, but thousands of cases. In this episode, we explore what happened inside the Department of Justice in the days after the Capitol Attack.

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The Aftermath is not a podcast about the insurrection itself, or about how we got there. It’s a podcast about what happened next – how our democracy is attempting to right itself in the face of an existential threat. Who is being criminally prosecuted, and who isn’t. How is Congress taking action—and what is it ignoring. And how are our institutions telling the story—and who gets to tell it. 

To set the scene for this project we are going to spend one episode—this one—on the events of the day itself. How what happened on January 6 revealed the difficult questions that people have spent the last year trying to answer.  

This is Episode 1: Day Zero, Ground Zero.

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On January 6, 2021, a mob of supporters of President Donald Trump attacked the United States Capitol in Washington, D.C. Their goal was to overturn his defeat in the 2020 presidential election, and they intended to do it by disrupting the joint session of Congress assembled to count electoral votes.  President-elect Joe Biden's victory would not be official until that count was complete. 

The Capitol was breached and lawmakers and staff were evacuated, while rioters assaulted law enforcement officers, vandalized property and occupied the complex. Five people died because of the events of that day. 138 police officers were injured. It was the most severe assault on the Capitol building in more than two centuries and the most forceful attack on the peaceful transition of power in the history of the American presidency.

The Capitol attack created fraught legal and political challenges that have played out over the year since.  How do we combat an attempted insurrection against our nation’s institutions? Who is responsible, and how do we hold them accountable? What reforms do we need to prevent this from happening again? Can we even tell the whole story? 

From Lawfare and Goat Rodeo, this is The Aftermath, a new series to explore the government’s response to January 6th and the search for accountability. 

What exactly has our legal system been doing the last year? Are we actually equipped to deal with a growing call for political violence? How does one prosecute a riot? Can Congress pass reforms and tell the story? And where do we go from here? This series isn’t about the events leading up to the attack, or about the attack itself, it's about what happened next—about the efforts to confront and counter an insurrection.

Coming on January 6, 2022...

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A brand new podcast from Lawfare. Weekly long-form conversations with fascinating people at the creative edges of national security. Unscripted. Informal. Always fresh.

Chatter guests roll with the punches to describe artistic endeavors related to national security and jump into cutting-edge thinking at the frontiers where defense and foreign policy overlap with technology, intelligence, climate change, history, sports, culture, and beyond. Each week, listeners get a no-holds-barred dialogue at an intersection between Lawfare's core issue areas and something from Hollywood to history, science to spy fiction.

On this week's Chatter, Congressman Adam Kinzinger sits down in his office with David to share his thoughts about his career in congress on heels of his announcement to not seek re-election. They talk about leadership, what the partisan divide means for future office holders, and how his time in the cockpit prepared him for tough matters of national security.

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In our first episode, we explore some of President Trump’s most brazen transgressions—the conflicts of interest, the self-dealing and those elusive tax returns. 

In the run up to his inauguration, Trump created a sort of original sin when it came to his conflicts of interest, proclaiming that he is above any conflict of interest norms and regulation. Throughout his presidency, Trump continued to challenge any transparency when it came to his personal dealings and conflicts while in office.

Virginia Heffernan explains how After Trump authors Bob Bauer and Jack Goldsmith propose reforming our laws and norms on a President’s financial ties and activities while in office.

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It’s January 31, 2020. It’s the 10th day of the impeachment trial of President Donald J. Trump. I’m Margaret Taylor, Senior Editor at Lawfare. Today, Senators listened to the arguments of the parties, and then voted 49-51 not to call new witnesses or subpoena new documents. Republican Senators Susan Collins and Mitt Romney voted with Democrats, but the vote was nonetheless unsuccessful. 

Senate leadership then offered a new procedural resolution to govern how the trial would conclude over the coming days. Closing statements from the parties will occur at 11am on Monday, and a final vote on the articles of impeachment will occur at 4pm on Wednesday.  

Democrats offered 4 amendments to the resolution. The first was an amendment to subpoena acting white house chief of staff Mick Mulvaney, former National Security Adviser John Bolton, Michael Duffey, and David Blair, as well as documents from the White House, the Office of Management and Budget, the Department of Defense, and the Department of State. The second was to subpoena just John Bolton. The third was to subpoena Bolton and allow for one day for a deposition and one day for live testimony. The fourth and final amendment was to require the Chief Justice to rule on motions to subpoena witnesses and documents, and to rule on any assertions of privilege. On all four amendments, Majority Leader Mitch McConnell moved to table--or defeat--them, and all were defeated. Thereater, the resolution setting out the path for resolution of the trial passed on a 53-47 party line vote.

Senate Majority Leader Mitch McConnell then asked for unanimous consent to include statements of Senators explaining their votes in the Congressional record next week, along with a full record of the Senate’s proceedings and handling of the impeachment proceedings. The Senate then agreed, by unanimous consent, to allow Senators to speak for up to 10 minutes each on Monday. 

This is The Impeachment, Episode 10. The Senate votes not to subpoena witnesses or documents, and charts a path forward to end the impeachment trial.

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It's January 28th, 2020. It’s the seventh day of the impeachment trial of president Donald J. Trump. The president's team of lawyers wrap up their arguments in defense of the president. Over the last two days of the trial, senators heard about 10 hours of presentations from White House Counsel, Pat Cipollone, and his team, along with the president's personal attorney, Jay Sekulow, former independent counsels, Robert Ray and Kenneth Starr, as well as professor Alan Dershowitz. Today, they wrap up their arguments, before the senators’ questioning begins. 

This is the Impeachment: Day Seven.

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It’s January 21st, 2020. A month ago, the House of Representatives impeached President Donald Trump for abuse of power and obstruction of Congress. Now the United States Senate must decide whether to convict the president and remove him from office. Chief Justice John Roberts has been sworn in and is presiding over the first day of the trial.

There’s no report this time; no definitive document laying out what happened. Instead, there is a trial. House impeachment managers will present the case against Trump. Then the president’s representatives will present a defense. When that is over witnesses may be called, but we don’t know who or how many. And then the Senate will have to vote. Two-thirds of the senate are required to convict and remove a president from office, 67 votes.

This podcast will let you hear what those senators hear. They have to sit there silently, without phones or laptops or anything else to read; they don’t get to skip the boring parts. We’re going to make it easier on you; we’ll cut down the many hours of testimony and procedural motions so you can just listen to the substance. You’ll get a fair representation of what members heard each day, just in less time. This is unfolding in real time. So this podcast won’t always be polished, or put together perfectly. But you’ll be able to hear it for yourself--not a highlight reel, not someone else’s opinion of what mattered, but the actual trial--and you can make up your own mind. 

The following weeks will become an important part of American history, whatever happens. The outcome isn’t just about 67 votes. Because every American faces the same fundamental decision as those 100 senators: Does the evidence show that President Trump is unfit to carry out the office of the commander in chief.  

This is the Impeachment. Day One.

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It Friday, March 22, 2019. It’s been nearly two years since Robert Mueller was first appointed Special Counsel. Now, he’s ready to submit a final report to the Attorney General. He has uncovered a sprawling and systematic effort by Russia to interfere in the 2016 election. And he’s developed a mountain of evidence about the president’s efforts to obstruct his investigation, things like witness tampering, ordering the creation of false records, and trying to fire Mueller himself.

But Mueller’s got a problem: a Department of Justice memo says he can’t indict a sitting president. So what is he supposed to do with all this evidence? Mueller decides to just lay it all in the report, all 448 pages of it. It’ll be someone else’s problem to decide what to do about it: maybe a future prosecutor, maybe Congress, maybe the America electorate. That isn’t really Mueller’s concern. He’s done what he was asked to do. Now his report can speak for itself.

_______________________

Thank you for listening to the final chapter of The Report.

This podcast is made possible by the generous support of the William and Flora Hewlett Foundation and the Democracy Fund. And by listeners like you. To support this project, please go to lawfareblog.com.

The Report is a production of Lawfare & Goat Rodeo in Washington D.C. Ian Enright is the executive producer. Production assistance from Char Dreyer. From the Lawfare team, the Project is lead by Executive Editor Susan Hennessey. Editor in Chief is Benjamin Wittes. Interviews conducted by Managing Editor Quinta Jurecic. Recordings by Mikhaila Fogel and Jacob Shulz. Additional assistance by Gordon Ahl .

Special thanks to Daniel Hemel, Chuck Rosenberg, Jack Goldsmith, John Barrett, Paul Rosensweig, Mary McCord, Mike Schmidt, and everyone who made this podcast possible. And thank you, the listening audience.

If you think this story matters, and the more Americans should understand what is in the Mueller Report, please share this podcast widely and leave us a rating and review wherever you listen to podcasts. And continue following this feed for bonus episodes and additional content in the future.

On behalf of Lawfare and Goat Rodeo, thanks for listening.

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It’s February 6, 2018. Don McGahn is back in the Oval Office with President Trump and the new White House chief of staff John Kelly. The New York Times has just published a story reporting that, back in June of 2017, Trump had directed McGahn to have Mueller fired and that McGahn had threatened to resign rather than carry out the order. The story doesn’t look good. Trump says: “You need to correct this. You’re the White House counsel.”

Trump wants McGahn to say it never happened. But McGahn knows that it did happen. The White House Counsel is sticking to his guns. He’s not going to lie. The president asks again. Is McGahn going to do a correction? McGahn feels Trump is testing his mettle, seeing how far he can be pushed. And so he answers: No. He’s not.

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It’s May 17, 2017. White House Counsel Don McGahn is in the Oval Office with the president. McGahn’s job is to represent the office of the presidency, which isn’t quite the same as representing the president personally. It’s a delicate line to walk, and Trump hasn’t made the job any easier. McGahn is supposed to act as the point of contact between the White House and the Department of Justice, to ensure all the rules are being followed. But the president has made clear, he’s not interested in following the rules. Trump has already fired his FBI director. That’s why McGahn is in the Oval that morning, they need to interview a new nominee for the position. Attorney General Jeff Sessions is there too.

Sessions interrupts the meeting. He has an urgent phone call from the Deputy Attorney General Rod Rosenstein, so he steps outside to take it. Sessions returns a moment later and relays the message: Rosenstein has appointed a Special Counsel to oversee the Russia investigation. It’s the former FBI director, Robert Mueller.  

Trump slumps back in his chair. He says, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.”

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It’s March 7, 2017. The Senate Judiciary Committee is holding a hearing on the nomination of Rod Rosenstein to be the Deputy Attorney General. Rosenstein’s whole career has been leading up to this moment. He’s a non-partisan sort of guy. He’s served under both President Bush and Obama. Now he’s being elevated to the role of running the day to day at DOJ.

But this hearing is about more than just confirming a new deputy attorney general. On March 2, five days earlier, Attorney General Jeff Sessions had announced his recusal from all investigations involving the 2016 election, a recusal which included the Russia investigation. And so, the moment he becomes deputy, Rosenstein will also become the acting attorney general for the purposes of the Russia investigation.

Rosenstein is confirmed and he’s sworn in on April 26, 2017. But his oath is about to be tested, like never before. Less than two weeks later, President Trump says he wants to fire the FBI Director and Rosenstein decides to help.

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It’s May 12, 2017. The FBI is still reeling from the sudden firing of Director James Comey. Andrew McCabe has only been the acting Director for 3 days. He’s trying to talk to Rod Rosenstein about the issue weighing on his mind: how are they going to protect the Russia investigation? The FBI is already investigating whether the president has tried to interfere with that inquiry. But the Deputy Attorney General is distracted and upset; he can’t believe the White House is making it look as if firing Comey were his idea. He says “There’s no one I can talk to. There’s no one here I can trust.”

McCabe urges Rosenstein to appoint a special counsel. The credibility of the FBI and DOJ are on the line; without a special counsel a firestorm threatens to destroy the nation’s storied law enforcement institutions.

It’s five days later—Wednesday, May 17—when McCabe sits beside Rosenstein in the basement of the United States Capitol where they’ve assembled the Gang of Eight. Then Rosenstein announces that he’s made a decision. He’s appointed a special counsel to oversee the Russia investigation and the new inquiry into the president: Robert S. Mueller III.

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It’s July 2016. Then-FBI Director James Comey gives a press conference explaining that, while he has recommended that the Justice Department not pursue charges against Hillary Clinton for her mishandling of classified information, Clinton’s conduct was “extremely careless.” Evidence has never surfaced that Clinton’s account was compromised. But a Republican political operative named Peter Smith becomes obsessed with the idea that Russia might have gained access. He spends the next year trying to get ahold of Clinton emails that he thinks Russia has hacked. But he never gets to see what Special Counsel Robert Mueller makes of his efforts—because a year later, he dies by suicide.

This is a bonus episode of The Report. We’ve just finished Volume I of our podcast bringing to life Robert Mueller’s report on Russian election interference. In a few weeks, we’ll be back with new episodes on Volume II of Mueller’s report—covering President Trump’s efforts to obstruct the Russia investigation.

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It’s April 18, 2019, Attorney General Bill Barr summons reporters to the Department of Justice in Washington DC. Robert Mueller’s report is about to be released. Before the press and the public finally see the document for themselves, Barr wants a chance to tell his own version of the story it contains. But is the bottom line according to Barr the same as the bottom line according to Robert Mueller? We’ll let you decide.

Previous episodes have told the story of the factual findings of the Mueller report—what did investigators figure out about what happened? And what were the questions they couldn’t fully answer? Conducting the investigation is one part of the Special Counsel’s job: collecting evidence and assembling a record. But the investigation actually supports Mueller’s larger responsibility: he must reach a set of legal conclusions about the evidence his team has found. The Special Counsel needs to decide which parts of the story laid out in Volume One of the Report amount to prosecutable crimes.

This episode covers those decisions. Where does Mueller decide to bring charges? And when he doesn’t, is that because he thinks nothing improper or possibly criminal occurred? Or is it because he finds that the evidence just isn’t sufficient to prove things beyond a reasonable doubt? Here’s what the Mueller Report says about how the Special Counsel’s office made these decisions.

This is The Report: Episode 7: Charging Decisions

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As the Russians were engaged in operations to hack and dump emails, the Trump campaign and its associates were in communication with Wikileaks about the distribution of stolen materials. But that’s far from the whole story of the Trump campaign’s connections to Russia during the 2016 election. 

As Special Counsel Robert Mueller began to piece together the rest of that story, his investigation came to focus on two Trump Towers.

The first is Trump Tower Moscow. Beginning all the way back in 2013 and through the spring of 2016, the Trump organization is pursuing a project to build a skyscraper in Russia. For a long time, the plans for Trump Tower Moscow had gone nowhere. But when Donald Trump announces he is running for president, things start to get interesting.

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It’s July 27, 2016. Donald Trump has just given a press conference during which he suggests that Russia hack Hillary Clinton and release the 30,000 allegedly missing emails from her private email server. The Russians, unbeknownst to people in the United States, appear to take the request seriously and hour later begin cyber-attacking Clinton’s private office for the first time.

Privately, Trump has instructions for his top aides: He repeatedly asks individuals affiliated with his Campaign to find the deleted Clinton emails too. His national security adviser, Michael Flynn, says Trump made this request repeatedly. And so Flynn acts on it, teaming up with a shadowy Republican political operative in an ill-fated attempt to track down a trove of Clinton emails from Russian hackers

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It's March 2016. John Podesta is sitting at his computer. He opens an email. Something’s wrong with his password, it says. It looks a little fishy, but IT says it is legit. And so he clicks. He follows the prompt. inputs his old password, resets a new one. And just like that hackers from a Russian military intelligence unit are in. It barely takes a minute, one click and a few keystrokes and there is no going back.

This is Episode 2 of The Report: Hack. Dump. Divide

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On April 18th 2019, The Justice Department released the redacted Mueller Report to the public. The 448 page document details a story that has captured America’s attention. From Russian plots to interfere in our election to constitutional questions of executive power, the Mueller Report is potentially one of the most important and consequential documents of our time. But there’s a problem: Very few people have read it.

There is still so much confusion about the Report. What it says, who it implicates, and what it means for our country. At Lawfare, we are distilling the report into a multi part audio narrative series, telling you the story of what is in this document, the story Mueller wants you to understand.

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