Will Trump Be Indicted?

Ruminating with Harry Litman, David Frum and Norman Ornstein on the upcoming January 6th hearings and the road from here.

(Left to right) Harry Litman, Norman Ornstein, Jonathan Alter, David Frum

I’m going to move in a slightly different direction this week. Instead of trying (and likely failing) to write something new about the unspeakable horror in Uvalde and the pathetic response of Extremist Republicans, or ruminate with someone off-the-news, I’m excerpting from a podcast convo I took part in last week with three of the smartest guys I know. Think of it as an early “curtain raiser” on the eight January 6th Committee hearings expected to begin in June.

While it's a bit early to say the noose is truly tightening around Trump's neck, the DOJ seems to be getting serious. And my friends and former colleagues, Michael Isikoff and Daniel Klaidman, have new reporting from Georgia that suggests Trump could be indicted in state court on charges stemming from his famous call to the secretary of state where he tried to "find" enough votes to overturn his defeat.

Harry Litman, a law professor, political commentator and former DOJ official, is the host of Talking Feds, an excellent podcast on legal and political issues. Besides me, his guests last week (pre-Uvalde) were David Frum, the Never Trump conservative author and political analyst who often gets me and a lot of other people thinking about ideas—big and small—in fresh ways, and Norman Ornstein, the author, commentator and American Enterprise Institute scholar who is arguably our foremost expert on how our constitutional system is broken (along with his frequent co-authors, Thomas E. Mann and E.J. Dionne). All of us have often been on MSNBC together over the last several years but this conversation seemed to go a little deeper than what you might get on television. You can judge for yourself.

Edited and amended transcript from Talking Feds, May 20, 2022:

HARRY LITMAN:

Let's start with the January 6th committee. The pace seems to be accelerating as they near their debut on the national stage. Rep. Jamie Raskin (D-MD) said that they have explosive things that have not yet been made clear to the public. The latest revelation is a letter from the committee to representative Barry Loudermilk (R-GA) alleging that he has information of tours given by lawmakers on January 5th to groups associated with the mayhem the following day. 

The rumor was swirling around, but has now for the first time, really hit the ground. Norm, I gather from your tweet that the charge strikes you as credible.

Norman Ornstein @NormOrnstein

I have spent countless hours over five decades in the Capitol. I have been in the hideaway offices of leaders of both parties-- unmarked offices one could never find without advance knowledge. The violent insurrectionists knew. How? Ask Barry Loudermilk, MTG and other GOP members

Any thoughts as to what the committee is holding here? 

NORM ORNSTEIN: 

We know that the insurrectionists who were in the Capitol had gone to these offices. Somebody gave them the roadmap. Tours were prohibited because of COVID, yet it is apparent that tours took place. And my guess is that it's not just Barry Loudermilk who is sweating. 

HARRY LITMAN:

This is as seismic as you can get. Juxtapose these tours with the next day and all the lawmakers cowering. It's akin to somebody giving Muhammad Atta a cockpit plan on September 10th. This is really treacherous stuff.

NORM ORNSTEIN: 

And a lot of members of Congress were very likely involved. There was a plan, involving members of Congress, for a violent entrance to the Capitol and an attempt to overturn the results of an election. How much more explosive could you get, except for the president's direct involvement? 

DAVID FRUM:

The last piece will remain forever missing—the link to Donald Trump, personally. As with the Russia collusion story, one actor in the plot behaves a certain way and the other actor in the plot reacts a certain way. You're not going to find the connection between the two, perhaps because the connection never existed. There is a kind of signaling that people can do non-verbally. I think the last line of defense on January 6th for Republicans will be saying, “Yes, some of the weirdos and the Republican caucus were overreacting, but you can’t prove that Trump told them to do it.” 

It will be obvious that they were acting on the president's will, as it was when Donald Trump welcomed Russian interference in 2016. But that last piece, which will provide deniability for the leaders of the Republican party, I suspect will not be closed. Therefore it won’t have the political impact you might've been suggesting earlier.  

JONATHAN ALTER:

I think Trump does have a way of keeping his fingerprints off things. He doesn't use email, for instance, even with his own son. Don Jr. was afraid to be directly in touch with him on January 6th and communicated through Mark Meadows. But that doesn’t mean they won’t have enough evidence to prosecute the former guy.

Yes, as Eric Holder has pointed out, Attorney General Merrick Garland needs to take into consideration the impact of moving forward with prosecuting the former president. But Holder—a former attorney general and friend of Garland—now says Garland also needs to consider the impact on the country of not moving forward with prosecution. After the June hearings by the January 6th committee, which I assume will be explosive, there will be more pressure on the Justice Department. They’ve already asked the January 6th Committee for transcripts of their interviews, so clearly the DOJ is interested in the case. The pressure will continue to grow. The January 6th Committee needs to get everything done before the election, but that isn’t the case for Merrick Garland and the DOJ. They have two and a half years to potentially indict Trump. I’m increasingly believing that they will. 

NORM ORNSTEIN:

It may be that Donald Trump has tried very hard to avoid any direct involvement, but there is going to be evidence coming from some less-cautious players. There will be texts and phone calls from these people to Mark Meadows and possibly Trump. Looking at how explosive the materials Mark Meadows gave over to the committee voluntarily were, imagine what's in the materials he didn't give over.

This is going to provide more impetus to subpoena some more of those records. Donald Trump talked about burner phones, [but] they're going to be able to track what calls he was making. My guess is there's going to be an enormous amount of circumstantial evidence that will show that Trump was talking on a regular basis with the January 6th perpetrators. That's going to make it much more difficult for Merrick Garland to just say, “Well, we don't want to get into this.” There’s going to be a lot of pressure on the Justice Department to take this to its logical conclusion. 

HARRY LITMAN:

If the Committee has the goods on Republicans actually giving tours to insurrectionists on January 5th, it will be politically stunning. Can McCarthy just fold his arms and say, “There’s nothing here, move along” as he’s been doing? 

DAVID FRUM:

Kevin McCarthy's in a similar situation to the Soviet troops in the Second World War: The Germans ahead might shoot me. The commissars behind will definitely shoot me. If he cooperates in any way, he cannot remain Republican leader. He's not prepared to fall on his sword for some abstract principle, like the survival of American democracy. He's got a career to continue. He needs to survive long enough to become the Speaker of the House, so he can land that lobbyist job on K Street. That is his main priority. 

JONATHAN ALTER:

The lying across-the-board from the Republicans is just next level. They have learned that they can lie without personal remorse or political consequence. This is a very dangerous lesson for these politicians to be absorbing. They’ll deny all the evidence presented by the committee. “Who are you going to believe, me or your lying eyes?” It’s so predictable. The extremist Republicans will say, “Oh, these pictures could have been doctored.” They’ll say, “What’s the chain of custody of the video tapes?”  “How do you know the insurrectionists were really turning left instead of right on that hallway?” They’ll say, when that creepy guy said, “Nancy, Nancy, come out, come out,” that that proves they didn't know where Nancy Pelosi's office is. They will have a million excuses for why they didn’t do what these tapes indicate.

DAVID FRUM:

The question is, should the January 6th committee try to draw the guilt as close to Donald Trump as possible? If all that happened was a couple of weirdo congresspeople got involved in a riot, that’s not uncommon. I'm sure that was also true during the anti-Vietnam protests. What you need to show is that the president of the United States urged a mob to go and attack the Capitol. That thing we saw happen on TV — it actually happened. 

HARRY LITMAN:

There’s two approaches. One is to focus on correcting the law to keep it from happening in the future. And the other would be the finger of history pointing at the 45th president of the United States.

JONATHAN ALTER:

They have to do both. The fact that the Congress has not yet corrected the Electoral Count Act of 1887—which currently makes it fairly easy to steal future elections—is disturbing. They need to pass those corrective measures this summer [because the Republicans are favored to win the midterms in the fall.] At the same time, to let Trump off the hook would be not just shameful today, but it would damn them in history. In Mitch McConnell’s speech after acquitting Trump, he basically said that it’s now up to the criminal justice system to use Trump’s “disgraceful dereliction of duty,” “incitement” and “practical and moral [responsibility] for the events of the day” to make a case against him for his intention to “torch our institutions on the way out.” McConnell knew in real time that Trump had committed crimes. If Mitch McConnell knew that, how can the Justice Department back off?

DAVID FRUM:

If you don't close the loop and acknowledge what we all saw happen, we all become complicit. What we would essentially say is that it would be just too upsetting to the American political system to believe this about a past president.

If we don’t do this, he will do it again. He’s out there. He's putting up billboards saying, I will do this again. Candidates for office are running on a promise to do it again. 

I think the best analogy is to what happened in the Southern state governments in the 1870s. There were a series of attacks by defeated Confederates on the stability and security of the reconstructed Southern state governments. And there was always this hope that they would somehow stop before this process was complete. In the end, they didn't stop. The Southern state governments were overthrown by violence and one party regimes were created. Now, that is an imperfect analogy. I don’t think that the current situation is as extreme as that, but this shows it has happened in this country before at the state level. 

It's in the American DNA. It's a meaningful risk at the national level. And you should act decisively, like they should have acted decisively in the 1870s to head it off.

NORM ORNSTEIN:

When Donald Trump at that first 2020 debate said, “Proud Boys: stand back and stand by”, that to me was a signal of where we were going. It took me aback. I think that, if this violence had gotten much greater in the Capitol and people were killed, Trump would have declared martial law.

JONATHAN ALTER:

We’ll hear a lot about his desire for martial law in the January 6th hearings and [former Defense Secretary] Mark Esper can testify to his [Trump’s] desire to invoke it in the summer of 2020 during a peaceful demonstration in Lafayette Square.

There were people who were in the room with Donald Trump when he was probably on the phone or when in the early stages discussing stealing the election. My guess is that the committee has a lot more than just a bunch of video of members of Congress giving tours of the Capitol.

For instance, Jocelyn Benson, the secretary of state of Michigan, said in an interview with NBC News that she had heard that Trump had said to somebody that she should be charged with treason and executed for her role in supervising a perfectly legal election in the state of Michigan. Now, you know, somebody in the room with Trump told that to somebody who told it to Jocelyn Benson, I have no reason to doubt that that particular rumor is true.

And it seems to me very possible that the person who was talking out of school—who was telling somebody something that he or she heard the president say in their presence— may be one of the people who spilled their guts to the Committee. A lot of people nobody’s ever heard of from the White House have given 8, 10, 15 hours of testimony.

HARRY LITMAN:

And the lesson of the Trump years is that it always turns out as bad or worse than the craziest suppositions.

DAVID FRUM:

Trump may not even wait until the midterm elections [to announce for reelection]. What Republicans will then say is that this prosecution is an attempt to pre-judge the 2024 election. “Whatever we think about what happened in 2020, we’re going to have an election, and this is an attempt to interfere with the Donald Trump candidacy.” And they will just abstain and say “We have no role here. This is the ballot question for 2024.” So I think the more imminent the indictment is— if there is an indictment—the more imminent is the Donald Trump candidacy.

JONATHAN ALTER:

I completely agree with that. And I think that puts the onus on Democrats to change their whole frame of reference on Trump and the extremist Republicans. Democrats have to just stop being concerned in any fashion about what the response will be from Republicans. They will attack no matter what. So Democrats should just do what’s right and damn the political consequences.

And sometimes when you do what’s right and damn the political consequences, you get in trouble politically; other times, because of the way politics works, you end up ahead of the game.

The point is, they just shouldn’t worry about how Trump Republicans will react to anything that they do either legally or politically. To me, this is a central mental change that Democrats have to undertake. I hear over and over again in talking to Democrats, “Oh, if we do this, then they’ll go crazy and they’ll do that.” Stop worrying about it. They’re going to attack Democrats no matter what, so just move forward.

HARRY LITTMAN:

Says the voice of [covering] 10 presidential elections. It is really true. The idea that we should not subpoena them because then they won’t subpoena us when they’re in [power].

JONATHAN ALTER:

That’s crazy.

HARRY LITTMAN:

Let’s turn to the shooting in Buffalo.

NORM ORNSTEIN:

Looking at the radical racists in the 1950s and 60s and 70s, they were still somewhat atomized. They didn't have a way of forming that larger connection, or recruiting people on the scale that we see them recruited now. This shooter in Buffalo, of course, was motivated not just by the replacement theory that he heard on television with Tucker Carlson and others, but by the New Zealand massacre. He saw the video there. He read that manifesto. These are the kinds of things that would have been easier to at least contain 50 years ago that are going to be much, much harder to contain in the future. 

HARRY LITMAN:

Was it a fair line to draw from Tucker Carlson’s paranoid rantings about replacement theory to the killer here? Does it put the Republicans in a box? 

JONATHAN ALTER:

It's very important to include the caveats that, no, I don't think it's fair to say that there is a direct connection between Tucker Carlson and this mass murderer. But Carlson spoke about replacement theory literally 400 times on his show. Even if the shooter was not watching Fox News, that show disseminates what had been a fringe idea much more widely in American culture. Now prctically everybody knows about it. 

I don't think that the pushback to it has been very smart, on the part of Democrats or Republicans who realize that it is a poisonous idea. The pushback should be that it's un-American. Un-American is a term that we first started to hear a lot in the 1920s, when William Randolph Hearst started talking about it. Then we had the Committee on Un-American Activities, which liberals bristled at.

But it's a politically potent idea. It should be used in opposition to anybody who embraces replacement theory. As we all know, we are a nation of immigrants. We have always been renewed by immigrants. We should have secure borders, but this is what our country is. It’s a huge country and there’s always been plenty of room for immigrants. No one is replacing anyone unless you see it as a racial issue. It's the lack of the pushback, the wimpiness of the response in the battle of ideas that is most disturbing to me right now.

DAVID FRUM:

People who are appalled by what just happened in Buffalo, really have to choose what they are trying to accomplish. Are they, as Jonathan said, trying to drive anti-immigration or immigration restrictionist ideas off the public stage, or are they trying to stop massacres? Because restraining immigration is a legitimate idea. I believe in it. I think it's a legitimate idea.

You can try to say that's an illegitimate thing to have concern about the impact of immigration, not only on the economy, but on the cohesion of American culture. But now you're trying to police speech/thought and not prevent massacres.

Yes, ideologically there is a spectrum of continuity between the Buffalo shooter and Tucker Carlson. But the methodological continuity is much more in common with the [terrorist] shooter at the Pulse nightclub. If what you're trying to do is drive anti-immigration or immigration restriction ideas off the public square, that points to one approach. But if you're trying to protect Americans from massacres, the next one could be motivated by a completely different set of ideas. 

NORM ORNSTEIN:

What disturbed me as much as anything in the aftermath of Buffalo was not Tucker Carlson or Elise Stefanik refusing to take any responsibility for their reckless rhetoric. It was that this was an act of white supremacy. And we know that the bulk of terrorist attacks in the United States have come not from the Islamicists, but from white supremacists. In the past, the leaders of both political parties would have joined together and condemned that in the starkest terms. They could separate that out from the debate over immigration, but they are now refusing to do that.

They're conflating the two and that's what's dangerous. And we don't have a responsible party anymore. On the Republican side, it’s a cult and the people who would speak up are afraid to. And I think that’s the problem. Being against expanded immigration is a legitimate debate to have. It's one we've had since the beginning of the Republic. I'm in a different place than David Frum is, but that's a perfectly legitimate debate. This is being exploited to promote white supremacy for political purposes. And the result is violence.

JONATHAN ALTER:

David, I agree that reasonable people can differ on immigration. But saying that white people are being replaced is a different story. I am kind of surprised having read a lot of your fine writing that you are not more sensitive to the historical resonance of the replacement theory debate. Nazi ideology is about replacement. The white supremacists in Charlottesville chanted, “Jews will not replace us.” In the Buffalo gunman’s manifesto, the idea is that Jews will engineer the replacement of Aryans. In this particular context, Jews are placed as sort of the middleman who are enabling this replacement and so the implications of Tucker Carlson's rhetoric are dangerous. It's not "policing speech" to point this out and to begin to get at least some parts of society to understand how noxious replacement theory really is.

Thanks for letting me excerpt this, Harry.