Jan 6th Hearings And Merrick Garland : Consider This from NPR This week the House Select Committee investigating the Jan. 6, 2021 attack on the U.S. Capitol wrapped up its first set of public hearings. The final hearing focused on former President Trump's actions - or lack of action - as rioters breached the Capitol.

As the hearings continue, the Department of Justice is conducting its own investigation. And Attorney General Merrick Garland is under pressure from the left to bring criminal charges against Trump.

We spoke to former federal prosecutor Andrew Weissmann about the evidence that the House Select Committee has presented and what the attorney general may be considering. Weissmann was a senior prosecutor on Robert Mueller's investigation into Russian interference in the 2016 election.

In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.

Email us at considerthis@npr.org.

The January 6th Committee Rests Its Case For Now, And Eyes Turn to Merrick Garland

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AILSA CHANG, HOST:

A hundred eighty-seven minutes - that time span was the focus of this week's primetime January 6 committee hearing. The clock started at 1:10 p.m., when then-President Trump finished his speech at the Ellipse having urged protesters to march to the Capitol. A hundred eighty-seven minutes later, at 4:17 p.m., Trump finally put out a video telling his supporters to go home.

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BENNIE THOMPSON: For 187 minutes on January 6, this man of unbridled destructive energy could not be moved - not by his aides, not by his allies, not by the violent chants of rioters or the desperate pleas of those facing down the riot.

CHANG: That's Select Committee Chairman Bennie Thompson, a Democrat. And during the hearing, two timelines unfolded in parallel. One was the situation at the Capitol. Witnesses and video captured the chaos as the crowd closed in on lawmakers and then-Vice President Mike Pence.

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UNIDENTIFIED PERSON #1: They've entered the building. Hold.

UNIDENTIFIED PERSON #2: Harden that door up.

CHANG: Secret Service radio traffic and video revealed just how close the mob came to Pence.

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UNIDENTIFIED PERSON #2: We may lose the ability to leave. So if we're going to leave, we need to do it now.

UNIDENTIFIED PERSON #1: They've gained access to the second floor, and I've got public about 5 feet from me down here below.

CHANG: In recorded audio, a security official in the White House complex, whose identity was hidden, said the agents feared for their lives.

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UNIDENTIFIED PERSON #3: There were calls to say goodbye to family members, so on and so forth. It was getting - for whatever the reason was on the ground, the VP detail thought that this was about to get very ugly.

CHANG: The other timeline laid out Trump's actions, or lack of action, as in this montage of interviews with staffers, including lawyer Pat Cipollone and National Security Adviser to the vice president Keith Kellogg.

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LIZ CHENEY: Are you aware of any phone call by the president of the United States to the secretary of homeland security that day?

PAT CIPOLLONE: I'm not aware of that, no.

UNIDENTIFIED PERSON #4: Did you ever hear the vice president or - excuse me - the president...

KEITH KELLOGG: No.

UNIDENTIFIED PERSON #4: ...Ask for the National Guard?

KELLOGG: No.

UNIDENTIFIED PERSON #4: Did you ever hear the president ask for a law enforcement response?

KELLOGG: No.

CHANG: What was Trump doing? Well, witnesses told the committee that he was sitting at a table in the West Wing's private dining room, watching Fox News. In live and recorded testimony, many White House staffers testify that they and members of Trump's own family urged the former president to tell the rioters to leave the Capitol.

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SARAH MATTHEWS: It would take probably less than 60 seconds from the Oval Office dining room over to the press briefing room.

CHANG: That's Sarah Matthews, former deputy press secretary and special assistant to the president.

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MATTHEWS: There's a camera that is on in there at all times. And so if the president had wanted to make a statement and address the American people, he could have been on camera almost instantly.

CHANG: Instead, Trump tweeted. At 2:24 p.m., after the Capitol had been breached, he tweeted that Pence did not have the, quote, "courage to do what should have been done." Matthews said it was like pouring gasoline on a fire. She resigned that very evening.

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MATTHEWS: It was essentially him giving the green light to these people, telling them that what they were doing at the steps of the Capitol and entering the Capitol was OK, that they were justified in their anger.

CHANG: Congressman Adam Kinzinger, a Republican on the committee, said that the president did not fail to act; he chose not to act.

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ADAM KINZINGER: Because President Trump's plan for January 6 was to halt or delay Congress' official proceeding to count the votes.

CHANG: The proceedings grinded to a halt when the Senate and House had to evacuate. The mob, Kinzinger said, was accomplishing Trump's purpose. The question of whether all of this amounts to a crime, whether Trump should become the first former president in U.S. history to be indicted - that question can't be decided in a hearing room on Capitol Hill. No, it is a question to be answered by the Justice Department, which has been investigating the attack on the Capitol since January 6 itself. The investigation has been led by Attorney General Merrick Garland.

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MERRICK GARLAND: No person is above the law in this country. Nothing stops us.

UNIDENTIFIED REPORTER: Even a former president?

GARLAND: No. I don't know how to - maybe I'll say that again. No person is above the law in this country. I can't say...

CHANG: CONSIDER THIS - as the January 6 committee wraps up its first phase of public hearings, all eyes are now on Merrick Garland. And it is clear that however he proceeds with the Justice Department's investigation, the consequences will be enormous for American democracy. From NPR, I'm Ailsa Chang. It's Friday, July 22.

It's CONSIDER THIS FROM NPR. This week's hearing focused on 187 minutes during the attack on the Capitol. But the seven previous hearings have also made the case that January 6 was actually the culmination of a months-long conspiracy. Witnesses detailed how, weeks after the election, while Trump publicly alleged voter fraud, top lawyers inside his administration told him the claims were bogus; lawyers like then-Attorney General Bill Barr.

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BILL BARR: I told them that it was crazy stuff, and they were wasting their time on that. And it was doing a great, grave disservice to the country.

CHANG: State officials testified that Trump and his associates pressured them to overturn the results in their states.

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RUSTY BOWERS: I said, look, you are asking me to do something that is counter to my oath when I swore to the Constitution to uphold it.

CHANG: That was Republican Rusty Bowers, speaker of the Arizona House. Biden defeated Trump in that state in 2020. Bowers and other state officials held firm, but that wasn't the only lever of power that Trump tried to pull, according to witnesses in his Justice Department. Richard Donoghue, who was then the acting deputy attorney general, said that Trump repeatedly urged him to investigate baseless allegations.

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RICHARD DONOGHUE: So I felt in that conversation that it was incumbent on me to make it very clear to the president what our investigations had revealed and that we had concluded, based on actual investigations, actual witness interviews, actual reviews of documents, that these allegations simply had no merit.

CHANG: And when Trump was told that the Justice Department can't and won't snap its fingers and change the outcome of the election...

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DONOGHUE: He responded very quickly and said, essentially, that's not what I'm asking you to do. What I'm just asking you to do is just say it was corrupt and leave the rest to me and the Republican congressmen.

CHANG: In the end, the Justice Department stood firm as well. Perhaps no one faced more pressure than Trump's vice president, Mike Pence, as we mentioned earlier, because the mob was targeting him. You can hear it in video of the rioters that played in this week's hearing.

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JESSICA WATKINS: It has spread like wildfire that Pence has betrayed us, and everybody is marching on the Capitol, all million of us. It's insane.

CHANG: The mob was focused on Pence because of an outlandish legal theory pulled together by a Trump lawyer named John Eastman. He argued, and Trump reiterated in public and in private, that Pence had the authority to stop the electoral count on his own. It's a theory that legal scholars have called nonsense and one that Pence rejected from the very start, according to testimony from his attorney, Greg Jacob.

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GREG JACOB: There is just no way that the framers of the Constitution, who divided power and authority, who separated it out, who had broken away from George III and declared him to be a tyrant, there was no way that they would have put in the hands of one person the authority to determine who was going to be president of the United States.

CHANG: We heard testimony from other witnesses that Trump knew members of that mob that swarmed the Capitol were armed, that he wanted to walk with the protesters to the Capitol. White House security officials were shocked, according to the staffer who testified anonymously.

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UNIDENTIFIED PERSON #5: This was no longer a rally, but this was going to move to something else when he physically walked to the Capitol. I don't know if you want to use the word insurrection, coup, whatever. We all knew that this would move from a normal democratic, you know, public event into something else.

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CHANG: The select committee has been making its case to the American public, but that is not its only audience.

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GARLAND: I am watching, and I will be watching all the hearings.

CHANG: Attorney General Merrick Garland is under a tremendous amount of pressure from the left to indict former President Trump. But investigating and potentially prosecuting a former president is a weighty decision. To get a sense of how Garland might be thinking about all of this, I spoke to former federal prosecutor Andrew Weissmann. He has firsthand experience on a case connected to Trump. He was a senior prosecutor on Robert Mueller's investigation into Russian interference in the 2016 election. And he says the very first question is, is there enough evidence to even open an investigation?

ANDREW WEISSMANN: I do think, based on the evidence that's been laid out so far by the committee, that there is ample evidence to have that thorough investigation. There clearly would be the crime of obstructing Congress as something to be investigated. I do think that the harder charge would be seditious conspiracy because that requires proving that a person was going to obstruct Congress with force, with the use of physical violence, and that there was that agreement to use physical violence. And I think that's something that could be investigated, but I think that would be a harder charge at this point.

CHANG: Well, we know that the Justice Department is investigating what happened on January 6 before, during and after. But when it comes to whether there is enough evidence to charge, I am curious. Like, what additional evidence do you think the Justice Department needs?

WEISSMANN: So with respect to seditious conspiracy, what you would want to see is direct evidence that the president knew that violence would be used with respect to Congress, with respect to attacking the building, that that's something that was part of the plan; not that people would be demonstrating, not that people would be carrying guns, but there was an actual plan, an agreement to attack the Capitol with violence and that the president knew that in advance. Now, the Department of Justice may get there and may be able to show that, but that's the kind of thing that, if I were a juror and certainly if I were still in the Department of Justice, I would want to know, is there that direct evidence? Are people who can talk about the president's scheme, what was said to him, what he said in response? That would be the ideal.

CHANG: Well, let's say the Justice Department does determine that there is enough evidence to prosecute Trump. And I totally understand we are operating in the land of hypotheticals right now. Then obviously, the attorney general, Merrick Garland, has a huge decision on his hands - right? - 'cause no former president has ever faced criminal charges. Can you just talk about, like, what are the risks if the attorney general were to move forward and prosecute a former president?

WEISSMANN: I think the risks are further division of America, of creating this distraction, in many ways, a forum for the former president to vent his grievances and for the wounds that have been inflicted and inflamed by the former president would continue. But I think that the greater risk, in my view, if you could make the criminal case, would be in not going forward. We would not be the only so-called first world country to bring charges against former leaders. That's the case in Israel, currently in France. And here, if the department were able to prove that the former president engaged in insurrection, of undermining our democracy, the greater risk is in not going forward.

CHANG: In other words, if you were attorney general, you would proceed with criminal charges against a former president if the evidence was there.

WEISSMANN: And if the crime were sufficiently serious. And here, the idea that you were able to establish that the former president engaged in a wide-ranging scheme to overthrow the election and the voters' choice, it's hard to imagine a greater crime.

CHANG: Well, former President Trump has repeatedly cast himself as a target of the so-called deep state, as he likes to say. And, I mean, yeah, in a deeply divided country, do you think prosecuting Trump would reinforce that accusation in some people's eyes, that the Justice Department is not independent, it is not an entity that can remain above the fray of politics?

WEISSMANN: I do think that that is a risk, but I think, unfortunately, there are some people who will think that no matter what. But I think what I would say to them is you have to remember that the Department of Justice could decide to go forward, but at the end of the day, the department doesn't get to decide who is guilty and goes to jail. The people do. It's 12 citizens. And that verdict would have to be unanimous. And so that is a real check on the power of the Department of Justice.

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CHANG: That is Andrew Weissmann, a former federal prosecutor and a professor of practice at NYU School of Law.

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CHANG: It's CONSIDER THIS FROM NPR. I'm Ailsa Chang.

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