WEBVTT - Will the Capitol Rioters Face Justice? 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:08.880 --> 0:00:12.040 It was chaos at the heart of American democracy when 0:00:12.039 --> 0:00:15.560 a mob of pro Trump writers stormed the capital, reached 0:00:15.600 --> 0:00:20.159 the security barriers, terrorized lawmakers, and vandalized the offices and 0:00:20.200 --> 0:00:24.440 congressional chambers, delaying the certification of the Electoral College vote. 0:00:24.800 --> 0:00:30.160 President elect Joe Biden was blunt. They were protesters. Don't 0:00:30.280 --> 0:00:36.080 dare call them protesters. They were a riotous mob, insurrectionists, 0:00:36.880 --> 0:00:41.280 domestic terrorists, and Biden was not alone in blaming President 0:00:41.320 --> 0:00:45.720 Trump for inciting his followers. Lawmakers like Republican Senator Mitt 0:00:45.840 --> 0:00:49.360 Romney also placed to blame on Trump. What happened here 0:00:49.360 --> 0:00:53.040 today was an insurrection incited by the President of the 0:00:53.080 --> 0:00:56.600 United States. Joining me is an expert in national security law, 0:00:56.760 --> 0:01:00.480 former federal prosecutor Jimmy Garula, a professor at Notre Dame 0:01:00.560 --> 0:01:05.720 Law School. Clearly, the Capitol police were unprepared, with all 0:01:05.760 --> 0:01:09.480 the notice, some from Trump himself, with much of the 0:01:09.600 --> 0:01:13.840 nation bracing for what might happen, and with threats of 0:01:13.920 --> 0:01:18.360 violence on social media. Should they have been prepared for this, 0:01:19.280 --> 0:01:23.280 they had forewarning, literally weeks in advance. I mean Trump 0:01:23.440 --> 0:01:27.440 on Twitter had notified the world that he was again 0:01:27.920 --> 0:01:30.959 recruiting as followers to come to Washington, d C. On 0:01:31.120 --> 0:01:34.800 January six, and he said, you know, be looking out. 0:01:34.840 --> 0:01:37.319 This is gonna be like something you've never seen before. 0:01:37.680 --> 0:01:40.520 It's going to be powerful. I mean, so it was 0:01:40.680 --> 0:01:44.840 clear that again he was recruiting his followers to come 0:01:44.880 --> 0:01:47.440 to d C for this event, and then of course 0:01:47.720 --> 0:01:52.960 at the rally before the actual assault on the Capitol Building, 0:01:53.480 --> 0:01:58.480 he's firing up his supporters and telling them to take 0:01:58.520 --> 0:02:01.320 back America. And in order to do so, you have 0:02:01.400 --> 0:02:04.240 to be strong. We have to use act with strength, 0:02:04.680 --> 0:02:08.200 which is code words for violence. So there was plenty 0:02:08.200 --> 0:02:11.560 of time to prepare. And it's inexcusable. I mean, this 0:02:11.600 --> 0:02:15.280 should never have happened in America. And thank god it 0:02:15.360 --> 0:02:18.800 wasn't worse than it actually was. I mean, had these 0:02:19.000 --> 0:02:23.720 protesters have been more heavily armed when they took siege 0:02:23.880 --> 0:02:28.560 of the Capitol Building, we could be talking about today 0:02:28.720 --> 0:02:32.280 the killing of members of Congress, the killing of senators, 0:02:32.720 --> 0:02:36.680 violence a much larger scale than what was witnessing. This 0:02:36.720 --> 0:02:39.240 can never be permitted to happen again, and I'm hopeful 0:02:39.760 --> 0:02:45.000 that the new administration immediately initiates an investigation or commission 0:02:45.520 --> 0:02:47.440 to get to the bottom of this and to termine 0:02:47.520 --> 0:02:50.519 what went wrong and to ensure that it never happens again. 0:02:51.080 --> 0:02:55.200 Would you call this an insurrection, an attempted coupe? What 0:02:55.280 --> 0:02:58.320 would you term this? Well, it's certainly an insurrection. You know, 0:02:58.600 --> 0:03:03.359 it certainly falls with in the seditious Conspiracy Statute. It's 0:03:03.360 --> 0:03:06.120 an act of sedition. It was an attack either to 0:03:06.240 --> 0:03:11.320 overthrow the government by violence or to prevent the enactment 0:03:11.440 --> 0:03:16.000 of laws by violence, which is also prohibited by the 0:03:16.080 --> 0:03:22.760 sedition conspiracy Statute. These people wanted to disrupt Congress's fulfillment 0:03:22.960 --> 0:03:27.040 of their constitutional duties under the Twelfth Amendment. That's what 0:03:27.160 --> 0:03:30.960 was driving them. The timing of this wasn't accidental. You know, 0:03:31.000 --> 0:03:36.760 their presence on January six, they're storming the Capitol Building 0:03:36.920 --> 0:03:43.040 while Congress was in session undertaking its constitutional duties. That 0:03:43.160 --> 0:03:46.040 was not a coincidence. This was an attempt to disrupt, 0:03:46.480 --> 0:03:51.920 to prevent them from fulfilling those constitutional obligations, from certifying 0:03:51.960 --> 0:03:54.680 the electors and then certifying Joe Biden is an ex 0:03:54.760 --> 0:03:58.000 president of the United States, and I would say further there, 0:03:58.000 --> 0:04:02.279 it was certainly anti Democrat because one of the principal 0:04:02.480 --> 0:04:06.840 cornerstones of our democracy that we have cherished over the 0:04:06.920 --> 0:04:10.840 last two hundred plus years is a peaceful transfer of power. 0:04:11.160 --> 0:04:14.640 There's a range of crimes the rioters could be charged with, 0:04:15.000 --> 0:04:19.479 from misdemeanors to felonies, from vandalism to sedition. Does it 0:04:19.560 --> 0:04:22.160 seem like they're going to be charged with the lower 0:04:22.240 --> 0:04:28.640 level crimes vandalism, breaking and entering, etcetera, rather than sedition. Well, 0:04:28.720 --> 0:04:32.400 I would say certainly everyone that can be identified who 0:04:32.480 --> 0:04:35.599 is inside the Capitol Building should be charged under the 0:04:35.920 --> 0:04:41.479 Anti Riot Act because this clearly satisfies the requirements of 0:04:41.480 --> 0:04:43.680 the statute. I mean, these are people that traveled in 0:04:43.800 --> 0:04:47.919 interstate or used an interstate facility for the purpose of 0:04:48.000 --> 0:04:50.919 engaging in a riot, for either inciting a riot or 0:04:50.920 --> 0:04:55.760 participating in a riot or facilitating acts of violence, which 0:04:55.880 --> 0:05:00.400 is what is required under the statute. And fortunately, many 0:05:00.440 --> 0:05:03.520 of these individuals were caught on video inside the Capitol 0:05:03.560 --> 0:05:07.599 Building and the FBI and other law enforcement agencies are 0:05:07.600 --> 0:05:12.080 going to be able to identify many of these perpetrators quickly, 0:05:12.720 --> 0:05:15.520 and once they're identified, they should be charged by the 0:05:15.560 --> 0:05:19.160 FBI and prosecuted by the Apartment of Justice, the U. S. 0:05:19.200 --> 0:05:20.800 Attorney's office. I mean, it could be the U. S. 0:05:20.800 --> 0:05:24.200 Attorney's offices in the districts where these individuals reside, or 0:05:24.240 --> 0:05:27.760 in the district of Columbia where the offenses were actually committed. 0:05:28.120 --> 0:05:31.280 On the question of sedition, I think here we're talking 0:05:31.279 --> 0:05:34.240 about again a conspiracy, and I think a conspiracy can 0:05:34.279 --> 0:05:39.040 be proven through their concerted action. And their concerted action, 0:05:39.080 --> 0:05:43.640 their intent again was to buy the use of violence 0:05:44.200 --> 0:05:47.160 to prevent, hinder or delay the execution of any law 0:05:47.240 --> 0:05:52.080 of the United States. That's language from the Seditious Conspiracy Statute, 0:05:52.480 --> 0:05:55.520 to prevent, hinder or delay the execution of any law 0:05:55.560 --> 0:05:57.679 of the United States. And the law of the United 0:05:57.680 --> 0:06:01.200 States that they were attempting to prevent was the Twelfth Amendment, 0:06:02.080 --> 0:06:05.279 was the certifying of the electors, the recognizing of the 0:06:05.320 --> 0:06:08.480 electoral votes, and certifying of the president. I want to 0:06:08.520 --> 0:06:12.080 get your take on why the Capitol police allowed the 0:06:12.240 --> 0:06:16.040 rioters to leave the Capitol building. We saw a video 0:06:16.200 --> 0:06:20.000 of rioters walking out of the building yelling, threatening to 0:06:20.040 --> 0:06:23.680 come back, with a police officer actually holding the door 0:06:23.720 --> 0:06:26.240 open for them. No, it was it was certainly at 0:06:26.240 --> 0:06:29.080 the very least a dereliction of duty. I can understand, 0:06:29.320 --> 0:06:32.120 you know, the argument that the Capitol Police felt that 0:06:32.160 --> 0:06:35.200 they were overwhelmed, that they didn't have sufficient numbers to 0:06:35.440 --> 0:06:38.880 prevent this assault on the Capitol building. That's one thing, 0:06:39.200 --> 0:06:44.080 But to actually be opening the door, assisting them as 0:06:44.120 --> 0:06:48.640 they're leaving, not attempting to prevent any of this illegal 0:06:48.680 --> 0:06:52.039 conduct that was taking place. These are officers, again, that 0:06:52.120 --> 0:06:56.000 took an oath to defend the constitution to enforce the law. 0:06:56.320 --> 0:06:59.560 They violated that oath. So this isn't simply a question 0:06:59.640 --> 0:07:03.600 or any shoe of the government wasn't adequately prepared to 0:07:03.720 --> 0:07:06.360 deal with the crisis. I think that there are some 0:07:06.600 --> 0:07:10.120 officers that have to be held accountable for dereliction of 0:07:10.280 --> 0:07:14.240 their duties and responsibilities as law enforcement officers. It's shameful. 0:07:14.360 --> 0:07:18.440 It's nothing less than shameful. Beyond that, there was video 0:07:18.920 --> 0:07:23.840 of the Capitol Police letting writers get past the barricades, 0:07:23.960 --> 0:07:27.160 moving the barricades. Even now, people will look at that 0:07:27.240 --> 0:07:30.760 and say, was there an order from above that led 0:07:30.800 --> 0:07:34.520 them to that course. It does raise an interesting question 0:07:34.680 --> 0:07:37.520 whether there was an order. Here's the other aspect of 0:07:37.560 --> 0:07:39.840 that too. If you look at the videos and you 0:07:39.880 --> 0:07:43.480 see some of these protesters. They didn't seem intimidated or 0:07:43.480 --> 0:07:46.880 all are worried by the presence of the law enforcement 0:07:47.040 --> 0:07:50.120 officers of the Capitol Police. They were very confident, they 0:07:50.120 --> 0:07:52.880 were very smug, and the action that they were taking, 0:07:52.920 --> 0:07:56.000 they weren't threatened at all feel threatened at all by 0:07:56.080 --> 0:07:58.480 law enforces. So that makes you wonder. That raises a 0:07:58.600 --> 0:08:03.160 question was there um order, either explicit or implicit, for 0:08:03.160 --> 0:08:06.600 the Capitol Police to stand down, to not enforce the law, 0:08:06.760 --> 0:08:10.200 to not arrest these individuals. I mean I watched literally 0:08:10.560 --> 0:08:14.440 two or three hours of footage on television and did 0:08:14.440 --> 0:08:17.520 not see a single arrest. Now we're told after the 0:08:17.520 --> 0:08:20.040 fact that there were, you know, individual arrest I I 0:08:20.080 --> 0:08:23.440 witnessed hours and hours of illegal activity going on and 0:08:23.520 --> 0:08:26.800 did not see a police officer, a law enforcement officer, 0:08:27.000 --> 0:08:32.000 arrest a single individual. That investigation should result in the 0:08:32.000 --> 0:08:36.479 senior members supervisors of the Capitol Police being fired an individual, 0:08:36.679 --> 0:08:40.480 lower level officers being fired at a minimum, At a minimum, 0:08:40.559 --> 0:08:45.640 our Capitol building, this symbol of democracy, was desecrated in 0:08:45.679 --> 0:08:48.560 a way that should never have ever been permitted to 0:08:48.559 --> 0:08:51.120 happen in this country, and someone has to be held 0:08:51.160 --> 0:08:54.960 accountable for that. There's been a lot of commentary about 0:08:55.000 --> 0:08:58.600 the marked difference in the way the Trump administration handled 0:08:59.120 --> 0:09:03.760 the Black Life Matters protests this summer with federal agents 0:09:03.760 --> 0:09:07.560 and riot gear, tear gas, rubber bullets. That's a fair 0:09:07.640 --> 0:09:12.200 point to raise because we saw over the summer the 0:09:12.360 --> 0:09:17.920 use of force that was employed against peaceful protesters in 0:09:18.040 --> 0:09:21.520 Lafayette Square, and again, as you stayed at tear gas, 0:09:21.600 --> 0:09:26.320 rubber bullets, etcetera. We didn't see that here. And this 0:09:26.440 --> 0:09:30.880 was an assault on the Capitol building. It raises questions, 0:09:30.920 --> 0:09:34.680 you know, had these been block protesters, would they have 0:09:34.760 --> 0:09:37.200 ever been permitted to get that close to the building, 0:09:37.320 --> 0:09:40.400 let alone go into the chambers of the Senate, go 0:09:40.520 --> 0:09:43.360 into the chambers of the House of Representatives. I am 0:09:43.440 --> 0:09:46.839 confident the Capitol police would have found some way to 0:09:47.040 --> 0:09:49.679 restrain them. They wouldn't have made it halfway up the 0:09:49.720 --> 0:09:53.320 steps of the Capitol Building before they were confronted with 0:09:53.400 --> 0:09:58.280 rubber bullets, tear gas, and even more lethal use of force. 0:09:58.800 --> 0:10:01.800 And so that it's another issue that needs to be 0:10:02.160 --> 0:10:06.200 addressed in this inquiry. Is this a dual standard of 0:10:06.280 --> 0:10:09.200 justice here? So if you're a block protester, you're treated 0:10:09.240 --> 0:10:11.880 one way, but that if you're a white protester, and 0:10:11.920 --> 0:10:16.600 we all saw for ourselves that the these protesters are 0:10:16.640 --> 0:10:21.240 white protesters, they're treated differently under the law. Our democracy 0:10:21.520 --> 0:10:27.280 cannot witness and embrace a dual system of justice that 0:10:27.480 --> 0:10:30.760 depends on the color of the person skin. The articles 0:10:30.760 --> 0:10:34.520 of impeachment have already been drafted. How Speaker Nancy Pelosi 0:10:34.600 --> 0:10:37.480 has been calling on Vice President Mike pens to invoke 0:10:37.559 --> 0:10:41.199 the twenty fifth Amendment to remove President Trump from office 0:10:41.400 --> 0:10:44.960 after the attack on the nation's capital by pro Trump rioters, 0:10:45.320 --> 0:10:48.240 and Pelosi says the House will move forward on articles 0:10:48.280 --> 0:10:52.480 of impeachment if nothing is done. A very dangerous person 0:10:53.000 --> 0:10:57.319 who should not continue in office. This is urgent. This 0:10:57.440 --> 0:11:01.280 is the emergency of the highest magnet too. I've been 0:11:01.280 --> 0:11:04.800 talking to national security law expert Jimmy Garula, a professor 0:11:04.840 --> 0:11:08.400 at Notre Dame Law School. Top Democrats are calling on 0:11:08.760 --> 0:11:13.440 Vice President Pence to invoke the amendments. It's never been 0:11:13.520 --> 0:11:17.880 used to remove a president. Do these circumstances fit Amendment? 0:11:18.440 --> 0:11:21.600 I think they do. It's actually Section four of the 0:11:22.200 --> 0:11:26.079 Amendment that's applicable here, and that authorizes the president and 0:11:26.160 --> 0:11:29.960 the majority that's referred to as the principal officers basically 0:11:30.040 --> 0:11:32.600 would be the cabinet members, and in this particular case, 0:11:32.640 --> 0:11:37.000 it would require thirteen cabinet members along with the vice president, 0:11:37.080 --> 0:11:41.280 to conclude that the president is unable to discharge the 0:11:41.400 --> 0:11:44.520 powers and duties of his office. And so here I 0:11:44.520 --> 0:11:47.440 think you can make a compelling case that over the 0:11:47.520 --> 0:11:51.160 last two months, the President Trump has been obsessed with 0:11:51.240 --> 0:11:55.080 the presidential election and his defeat, and his behavior during 0:11:55.120 --> 0:12:00.280 that period of time has become erratic. He's unstable. He 0:12:00.400 --> 0:12:06.239 has advocated his responsibilities with respect to the coronavirus pandemic, 0:12:06.480 --> 0:12:11.400 He's advocated his responsibilities regarding a recent hacking attack by 0:12:11.520 --> 0:12:16.240 a Russia. So I think the prerequisite regarding his inability 0:12:16.360 --> 0:12:19.720 to discharge his powers and duties that's required under the 0:12:19.760 --> 0:12:23.880 amendment can be met. Once that is communicated in writing 0:12:24.320 --> 0:12:26.720 to the leaders of the House and the Senate, then 0:12:26.760 --> 0:12:31.920 the vice president immediately assumes the duty as the acting president. 0:12:32.080 --> 0:12:34.680 But that doesn't end it. I think President Trump would 0:12:34.679 --> 0:12:38.120 immediately contest that, and then it would fall back on 0:12:38.200 --> 0:12:42.120 the vice president to make a further determination of the 0:12:42.160 --> 0:12:46.719 president's lack of capacity to hold office. And I think 0:12:46.760 --> 0:12:48.520 that's probably about as far as we're going to get 0:12:48.720 --> 0:12:52.560 within that short period of time. But interestingly, that would 0:12:52.960 --> 0:12:55.880 deprive the president of his ability to stay in office 0:12:56.080 --> 0:12:59.280 for the balance of his his trump. Now it seems 0:12:59.320 --> 0:13:03.280 highly unliyly that Penn's is going to involve the amendments. 0:13:03.360 --> 0:13:05.280 So then we come to the Democrats threats of a 0:13:05.360 --> 0:13:08.640 second impeachment. How much of the process could they get 0:13:08.679 --> 0:13:11.920 through in the time left till its term ends. It's 0:13:11.920 --> 0:13:15.760 finally unlikely that in that period of time. First of all, 0:13:15.920 --> 0:13:17.840 the publican members of the House are going to be 0:13:17.880 --> 0:13:20.280 fighting this, and they're going to be resisting this at 0:13:20.280 --> 0:13:23.200 every step, and so I think it's highly unlikely in 0:13:23.320 --> 0:13:27.480 days that there would be articles of impeachment that are 0:13:27.520 --> 0:13:31.600 submitted to the House, that are debated. You know that 0:13:31.679 --> 0:13:35.880 there witnesses that are called, and then a vote concluded 0:13:36.440 --> 0:13:40.200 on those articles of impeachment, and then of course that 0:13:40.320 --> 0:13:43.840 again would just be the charging document. Then it would 0:13:43.840 --> 0:13:46.320 be up to the Senate to the side. Again, it 0:13:46.360 --> 0:13:50.480 requires the two thirds vote of the Senate to actually convict. 0:13:51.080 --> 0:13:54.800 It's just not practical, it's not feasible for all of 0:13:54.840 --> 0:13:58.920 that to happen. I think what's more realistic, again, if 0:13:59.080 --> 0:14:03.200 Vice President hence took the initiative and again was able 0:14:03.240 --> 0:14:07.280 to get the support of thirteen cabinet members that he 0:14:07.320 --> 0:14:12.360 could become acting president and probably delay the final process 0:14:12.440 --> 0:14:16.280 here through the balance in the president's term. Thanks Jimmy. 0:14:16.520 --> 0:14:21.960 That's Professor Jimmy Garoule of Notre Dame Law School. The 0:14:22.080 --> 0:14:25.320 votes in Georgia have been counted not once, not twice, 0:14:25.520 --> 0:14:29.160 but three times, and they confirmed that President elect Joe 0:14:29.200 --> 0:14:33.880 Biden beat President Trump by eleven thousand, seven hundred seventy votes. 0:14:34.520 --> 0:14:37.600 But in a sixty two minute call last Saturday, Trump 0:14:37.760 --> 0:14:42.400 pressured Georgia officials, including the Secretary of State, to find 0:14:42.640 --> 0:14:46.480 thousands of votes and recalculate the election results to flip 0:14:46.480 --> 0:14:49.640 the state to him, just enough to pass Biden by 0:14:49.720 --> 0:14:54.000 one vote. So, look, all I wanna do is this. 0:14:54.320 --> 0:14:59.720 I just want to find uh eleven thousand, seven d 0:15:00.040 --> 0:15:05.360 eighty loaves, which is one more that we have. The 0:15:05.440 --> 0:15:07.760 people of Georgia are angry. The people of the country 0:15:07.760 --> 0:15:11.040 are angry, and there's nothing wrong with saying that you know, 0:15:11.600 --> 0:15:17.480 um that you've recalculated. Georgia officials stood firm by the 0:15:17.480 --> 0:15:22.240 election results, joining me as former federal prosecutor Elie Hoenig 0:15:22.400 --> 0:15:27.320 of Lowenstein Sandler. The first broad question, did Trump break 0:15:27.400 --> 0:15:30.240 the law during this call? So I think the short 0:15:30.280 --> 0:15:34.520 answers is quite possibly, maybe meaning towards probably. You know, 0:15:34.560 --> 0:15:36.840 we don't have all the facts, but the call itself 0:15:36.920 --> 0:15:40.720 is a pretty darned good starting point. So both federal 0:15:40.800 --> 0:15:44.240 law and Georgia law are similar in that bottom line, 0:15:44.320 --> 0:15:47.359 They say it is a crime to try to influence 0:15:47.400 --> 0:15:51.400 an election official to count ballots that we're not actually cast. Now, 0:15:51.800 --> 0:15:54.840 clearly Donald Trump is trying to influence and then some 0:15:55.520 --> 0:15:59.120 these Georgia Secretary of State Rapidsburger's overtly pressuring him, even 0:15:59.160 --> 0:16:02.320 threatening him with the potential of criminal prosecution of his own. 0:16:02.880 --> 0:16:06.400 And he's also clearly trying to pressure the Secretary of 0:16:06.440 --> 0:16:11.040 State to count votes in his favor and votes that 0:16:11.120 --> 0:16:14.800 if you are tethered to reality, you know we're never cast, right. 0:16:14.840 --> 0:16:17.280 I mean, every source that has a pined on this, 0:16:17.440 --> 0:16:20.840 from d o J to DHS, two dozens of courts 0:16:20.840 --> 0:16:24.800 have said there was no such fraud. Perversely, I guess 0:16:24.840 --> 0:16:27.600 the best defense of Donald Trump here would be he 0:16:27.680 --> 0:16:31.680 actually believes, truly believes that he got those votes, Because 0:16:32.040 --> 0:16:34.280 if he truly believes he had those votes. It's not 0:16:34.360 --> 0:16:37.360 a crime to ask an official to count votes that 0:16:37.440 --> 0:16:40.160 you truly believe. We're You're You're not asking for some 0:16:40.240 --> 0:16:42.960 fraud to be committed. If in your mind you truly 0:16:43.000 --> 0:16:46.200 believe those votes were for you. Now, that would require 0:16:46.240 --> 0:16:49.120 one to believe Donald Trump is delusional. Perhaps he is. 0:16:49.360 --> 0:16:51.000 And I also think it's a little bit of intention 0:16:51.040 --> 0:16:53.360 with the words Trump uses on the call. If I'm 0:16:53.360 --> 0:16:56.880 a prosecutor, going back to my prosecutorial role, I would say, 0:16:56.960 --> 0:16:59.120 why does he use the word find? We need to 0:16:59.320 --> 0:17:02.640 find these votes? That to me is a little different 0:17:02.640 --> 0:17:04.919 than we need to have a full counting of all 0:17:04.920 --> 0:17:07.800 the votes that were actually cast. And that number, remember 0:17:07.840 --> 0:17:12.000 Donald Trump says we need exactly eleven thousand, seventy or whatever, 0:17:12.280 --> 0:17:14.960 one more vote than he needed. That also is very 0:17:15.000 --> 0:17:18.000 conspicuous and different from we need to count all the votes. 0:17:18.400 --> 0:17:20.960 So I think at a minimum, prosecutors have to take 0:17:20.960 --> 0:17:23.080 a look here, investigate, and sit down and make a 0:17:23.160 --> 0:17:26.000 very hard decision. I want to talk about some problems 0:17:26.040 --> 0:17:30.359 that may occur because the call is very meandering. He 0:17:30.400 --> 0:17:34.320 goes from topic to topic, He skirts the issue a lot, 0:17:34.359 --> 0:17:37.680 and he keeps saying over and over that he won 0:17:37.760 --> 0:17:42.920 the election. So is that a problem? Well, so meandering. Absolutely, 0:17:43.359 --> 0:17:45.080 it's not a problem that he never says I would 0:17:45.119 --> 0:17:47.520 like you to perform this illegal act. I mean, that's 0:17:47.520 --> 0:17:50.520 certainly not required. And yes, it does complicate it though 0:17:50.560 --> 0:17:53.919 that Donald Trump repeatedly he seems like he's almost reading 0:17:53.920 --> 0:17:56.720 off of a list or something of all these wild 0:17:56.840 --> 0:17:59.720 claims that have really come from Twitter or you know, 0:18:00.119 --> 0:18:02.880 far far right wing media and I don't mean Fox News, 0:18:02.960 --> 0:18:05.919 I mean far the right wing than that. And that 0:18:05.960 --> 0:18:08.959 would be the defense, if I'm done Trump's defense lawyer, 0:18:09.240 --> 0:18:12.040 I would argue, he truly believes that he won this 0:18:12.080 --> 0:18:15.040 election and that he's entitled to have the Secretary of 0:18:15.040 --> 0:18:17.280 State recount these votes. And I think the argument is 0:18:17.640 --> 0:18:19.840 that may be a bad look, that may say something 0:18:19.880 --> 0:18:24.280 bad about his own mental stability, But legally it's a 0:18:24.400 --> 0:18:28.159 defense because again, if you truly believe that votes were 0:18:28.160 --> 0:18:30.920 cash for you, and you ask officials to count those votes, 0:18:31.000 --> 0:18:33.480 that's not a fraud. That's not a crime. That would 0:18:33.480 --> 0:18:35.840 be the difficulty in prosecuting this case, and that would 0:18:35.840 --> 0:18:38.000 be something to prosecutors would need to sit down and 0:18:38.040 --> 0:18:42.879 sort of puzzle through in meticulous detail. Is his ignorance 0:18:42.880 --> 0:18:45.240 of the law and excuse he says, I didn't know 0:18:45.280 --> 0:18:49.240 that was a problem. No ignorance of law. It's a motto, 0:18:49.280 --> 0:18:51.879 it's a saying, but it's true. Ignorance of law is 0:18:51.880 --> 0:18:54.760 not a defense. You don't have to know specifically that 0:18:55.040 --> 0:18:59.320 this exact conduct is prohibited by statute. You have to 0:18:59.320 --> 0:19:01.320 know general link that it's wrong. I do want to 0:19:01.320 --> 0:19:05.639 throw in one other potential wrinkle here. Clearly, Donald Trump 0:19:05.760 --> 0:19:09.600 threatens Rappensburger with criminal sanctions of his own right. There's 0:19:09.600 --> 0:19:11.800 that weird passage where Trump says, what you're doing is 0:19:11.800 --> 0:19:15.879 actually a crime, Mr. Happensburger, and paraphrasing here, it is 0:19:15.920 --> 0:19:18.480 a crime, a federal crime, an estate crime. To threaten 0:19:18.560 --> 0:19:21.920 somebody as part of an extortion, as part of trying 0:19:21.960 --> 0:19:26.320 to get something, you want to threaten somebody with unjustified 0:19:26.720 --> 0:19:31.080 criminal charges. Now, there's no argument that Rappensburger committed a 0:19:31.119 --> 0:19:33.600 crime of any sort, but Trump uses that as a 0:19:33.640 --> 0:19:36.760 bully tactic. There is an interpretation of the extortion laws 0:19:36.800 --> 0:19:39.720 that could include that, and I think prosecutors ought to 0:19:39.720 --> 0:19:41.959 look at that as well. Do you really think that 0:19:42.000 --> 0:19:45.399 the threat is that explicit? He talks about a big 0:19:45.520 --> 0:19:49.320 risk of potential criminal charges. Do you really think that 0:19:49.480 --> 0:19:53.280 the threat is explicit enough. Well, that's the question. It's 0:19:53.320 --> 0:19:56.960 not as explicit as a prosecutor would like it to be, right, 0:19:57.400 --> 0:19:59.720 it's not. If you don't do this, I will go 0:19:59.800 --> 0:20:02.640 to FBI and we will indict and prosecute. That would 0:20:02.640 --> 0:20:06.240 be an example of the easiest case. This fall somewhere 0:20:06.240 --> 0:20:07.959 in the middle, And that's why I think that the 0:20:07.960 --> 0:20:11.199 exact verbiage is important. You know, he does say, you know, 0:20:11.200 --> 0:20:14.240 he gets fairly explicit about you you're committing a crime, 0:20:14.240 --> 0:20:16.400 and even has the weird exchange where Trump says something 0:20:16.440 --> 0:20:19.480 like I'm putting you on note, I'm notifying you right now, 0:20:19.600 --> 0:20:21.840 which is I think close to the line. But I 0:20:22.080 --> 0:20:26.480 agree it's not as explicit as other extortions that I've seen, 0:20:26.840 --> 0:20:29.720 for example, in the mob world. But that also doesn't 0:20:29.720 --> 0:20:32.960 necessarily mean he's in the clear either. Explain the willfully 0:20:33.000 --> 0:20:37.120 requirement in the federal law. So will so he essentially 0:20:37.160 --> 0:20:41.159 means with intent to commit a crime, or to commit 0:20:41.200 --> 0:20:43.320 the elements of the crime. So that gets back to 0:20:43.359 --> 0:20:46.480 sort of the state of mind. Is the president in 0:20:46.560 --> 0:20:48.920 the deepest recesses of his mind and by the way. 0:20:48.960 --> 0:20:52.280 This is the difficulty of any intent based crime. Right, 0:20:52.440 --> 0:20:54.919 So for example, a robbery of a seven eleven is 0:20:54.920 --> 0:20:56.960 not an intent based crime. You see someone coming with 0:20:57.000 --> 0:20:59.440 a gun in the mask and demand money, that's a robbery. 0:20:59.600 --> 0:21:02.439 But when you get into things like frauds, then you 0:21:02.480 --> 0:21:04.320 have to get into the mind of the person and 0:21:04.359 --> 0:21:06.920 did they really know what they were proposing. Was they 0:21:06.960 --> 0:21:09.920 fraud or was they llegal or did they actually honestly 0:21:09.920 --> 0:21:12.000 believe that they were entitled to this or that it 0:21:12.040 --> 0:21:15.720 was legitimate. So that's a difficulty here. And you know, 0:21:15.840 --> 0:21:18.399 if I was investigating this, I would start with the 0:21:18.440 --> 0:21:20.720 tape itself, Like I said, I would scrutinize the words 0:21:20.760 --> 0:21:23.600 on the tape, but I'd also i'd subpoena or want 0:21:23.640 --> 0:21:26.160 to speak with those around Donald Trump, the other people 0:21:26.200 --> 0:21:29.160 on that call. Is there evidence that before that call 0:21:29.359 --> 0:21:31.920 or after the call he said to somebody, look, we're 0:21:31.920 --> 0:21:33.800 gonna bend this guy to our will, or is there 0:21:33.800 --> 0:21:37.080 evidency said things that evidence that he doesn't truly believe 0:21:37.080 --> 0:21:39.920 that he was. But there's been reporting out there that 0:21:40.040 --> 0:21:42.560 Donald Trump understands that he lost this election, but he's 0:21:42.600 --> 0:21:44.679 doing this for show, or he's doing this to rally 0:21:45.000 --> 0:21:47.760 donations or support, or to keep themselves relevant. If you 0:21:47.800 --> 0:21:50.000 could find a couple of witnesses to say, I spoke 0:21:50.040 --> 0:21:52.040 with Donald Trump, he told me I know I lost this, 0:21:52.119 --> 0:21:55.000 but just I'm playing this game here, right, It's something 0:21:55.000 --> 0:21:57.400 to that effect I think would be a significant piece 0:21:57.400 --> 0:21:59.119 of evidence. And again that goes to my point of 0:21:59.119 --> 0:22:01.359 why prosecutors and to at least dig in here and 0:22:01.400 --> 0:22:04.639 not just sort of glide past it. Two members of 0:22:04.680 --> 0:22:08.200 Congress referred the case to the FBI. Does that mean 0:22:08.240 --> 0:22:12.320 the FBI will actually do an investigation? No, it does not. 0:22:12.440 --> 0:22:15.440 There's this common misconception out there that there's some magic 0:22:15.520 --> 0:22:18.840 to a referral like criminal referral. There's not. All it 0:22:18.880 --> 0:22:22.600 means is and I've gotten referrals as a prosecutor from 0:22:22.600 --> 0:22:25.640 any source you can name, from members of the public, 0:22:26.000 --> 0:22:29.160 from politicians, you know, you name it. All it means 0:22:29.240 --> 0:22:31.959 is somebody has asked the FBI or whatever your law 0:22:32.040 --> 0:22:36.200 enforcement agency to take a look. Now, referrals are taken seriously, 0:22:36.640 --> 0:22:39.679 and depending on both the source of the referral and 0:22:39.720 --> 0:22:43.000 the apparent seriousness of the conduct and the support for 0:22:43.040 --> 0:22:47.760 the conduct, referrals absolutely can lead law enforcement agencies and 0:22:47.760 --> 0:22:51.520 prosecutors to open cases to take a look. So it's significant, 0:22:51.520 --> 0:22:54.760 but it doesn't find anybody to do anything. The next 0:22:54.840 --> 0:22:58.320 question is, let's just suppose that enough evidence is found, 0:22:58.640 --> 0:23:03.879 who would prosecute with the Justice Department under President elect Biden, 0:23:04.119 --> 0:23:06.760 who said that he is not going to try to 0:23:06.800 --> 0:23:09.399 influence that the Justice Department is there to do its job. 0:23:09.880 --> 0:23:13.160 But are they going to want to start their administration 0:23:13.520 --> 0:23:18.800 by prosecuting a former president? That's a great question, at 0:23:18.800 --> 0:23:21.439 a very important question. Let's start with focusing on the 0:23:21.440 --> 0:23:24.720 federal authorities here, d O. J Joe Biden has done 0:23:24.760 --> 0:23:26.840 one thing that I think is really important and good, 0:23:26.840 --> 0:23:28.560 and one thing that I have an issue with what 0:23:28.640 --> 0:23:31.119 he's done that I think anybody should approve of, is 0:23:31.160 --> 0:23:34.360 he has said publicly and clearly, I will not get 0:23:34.400 --> 0:23:37.919 involved in the prosecutorial decisions of my Attorney General. That 0:23:37.920 --> 0:23:40.320 will be entirely up to the new a G. I 0:23:40.359 --> 0:23:42.639 don't get involved. That That is right, That is correct, 0:23:42.640 --> 0:23:44.879 That is as it should be, that something Donald Trump 0:23:44.960 --> 0:23:48.359 himself frequently violated. What I don't approve of is the 0:23:48.400 --> 0:23:52.280 fact that Joe Biden reportedly told several people around him, 0:23:52.280 --> 0:23:54.879 and this was reported by NBC News. They say they 0:23:54.880 --> 0:23:57.480 had five sources saying this is a few weeks ago, 0:23:57.520 --> 0:23:59.800 that Joe Biden has no interest in having his d 0:24:00.160 --> 0:24:03.680 J go down this rabbit hole of Donald Trump investigations, 0:24:03.920 --> 0:24:05.440