Harry Litman [00:00:06] Welcome to a very, very special episode of Talking Feds Now, in the middle of one of the most harrowing and memorable days in our lifetimes, and it's not even over yet. After a rally this morning by President Trump in support of his bunk and incendiary claim of having had the election taken from him degenerated into a frothing riot. His supporters stormed the Capitol, took possession of the Senate and House chambers, in the process, somebody was killed. We don't know exactly who. There are dozens of issues and questions that this raises, and we're here to take a quick first swipe at history, and to do it, we have three somewhat shell-shocked experts, starting with: Steve Vladeck of the University of Texas. Steve, hi.
Steve Vladeck [00:01:03] Hello, Harry.
Harry Litman [00:01:04] Jennifer Rodgers of Columbia and NYU.
Jennifer Rodgers [00:01:11] Hello, good evening.
Harry Litman [00:01:11] CNN national security analyst and senior adviser to the Biden Institute, Sam Vinograd, who brings her specialty in national security to the gathering. Sam, thanks for being here.
Sam Vinograd [00:01:23] Thanks for having me.
Harry Litman [00:01:25] And Andrew Weissman of Jenner and Block and NYU. And holy cow, where do we start?
Andrew Weissmann [00:01:32] I agree.
Harry Litman [00:01:34] All right. We're having a bizarre and somewhat conflicting accounts of what's going on with the president of the United States who supposedly has completely lost it. It's almost a 25th Amendment situation in the making before they've used it. Is that right? What the hell is up with the president, and what does it portend for the next day and weeks?
Steve Vladeck [00:02:01] I mean, Harry, I'll jump on this grenade. I think that the odds that President Trump makes it to noon on January 20th have decreased dramatically today. And I think that's for a couple of reasons, I think there is now, I think a whole lot of momentum in the House of Representatives to impeach him again. I think there is now far more than one Republican senator who would be willing to vote to remove him just based solely on his conduct today. There's also reports coming across the wires tonight that at least some cabinet secretaries are talking about the nuclear option, which is Section four of the 25th Amendment. So, we should spend some time reflecting on the horrors of the violence of today and all of the questions it raises, but as an end game for President Trump, I mean, today was clearly a turning point and one that I think is, to my mind, long, long overdue.
Harry Litman [00:02:53] Something totally cracked here, yes? It would take 17 Republican senators to remove him, and it just seems inconceivable that they would all try to stay in lockstep and pretend nothing had gone on or nothing too serious. I mean, a House vote would put it to them, what a position they would find themselves in. How quickly, Steve or anyone, do you think it could actually be served up? Oh, just one more. The obvious point here, this isn't for the next couple of weeks, this is because the remedy would ensure what really has to be the national imperative now that he is removed from public life going forward.
Sam Vinograd [00:03:34] Well, can I just jump in? Because while this discussion is incredibly important and I think it is possible that we see the 25th Amendment invoked, for all intents and purposes, President Trump is being stripped of his presidential authority. Vice President Pence very swiftly took over presidential duties on January 6th. He was the one coordinating with the Pentagon, coordinating with law enforcement, and those other kinds of engagements. Not to mention the fact that President Trump's platforms, Twitter and Facebook, have suspended his account. So in practice, President Trump is sitting in a dark room somewhere watching television while his presidential duties, not that he was really doing much before, are being taken away from him.
Andrew Weissmann [00:04:19] I mean, there's sort of a realpolitik to this, which is this is coming on what happened in Georgia so. Well, of course, there's Trumpism is still a huge thing, and he certainly has a lot of followers, the Republicans, the sort of sane Republicans are happy to get rid of him. It opens up a slot for them if he, in fact, is impeached and his power is diminished just by what happened in Georgia, which was really sort of a remarkable turn of events, which now seems like a year ago, but it was only at 2:00 in the morning last night. So there's probably a lot of mixed motives in terms of what the Republicans do, which is really aimed much more at opening up a slot for four years from now, than what they could have done during the last four years. Obviously, it's really interesting to see whether that happens, and whether it took physical violence directed at Congress to get them to wake up at a particular time when the president is most vulnerable. I think the bigger issue is like what, what effect it's really going to have on the next administration in terms of, you know, there are key issues. Who is going to get prosecuted or investigated, and you could end up in a situation where the sort of low level people who are essentially carrying out the fire that was set ablaze by Trump are actually prosecuted, and it's going to be hard not to. I mean, there were actual incendiary devices used at the Capitol, and so that, I don't see how you ignore that, and yet are you going to just do nothing with respect to the president?
Harry Litman [00:05:56] And it's very hard to, you can't even climb up the middle. I think it goes right to the top, right? We'd be talking about seditious conspiracy, right? And for that, you need coconspirators, and we heard what Rudy Giuliani said this morning. We heard what Donald Trump Jr said, but there's nowhere to sort of work it up. It's him and his crazy band of followers, and can you really just put all of them in jail and say, 'oh, but it's just too hard for the country to prosecute Trump himself.'
Andrew Weissmann [00:06:27] And then you go backwards and you say, 'OK, well, just remember, it was not that long ago, we were all just absolutely abuzz with what he did with this Georgia secretary of state.' It's obvious he must have done that with lots of other people, and that information is something we don't know now, but I think as soon as January 20th comes around, we're going to learn a lot more about things and the antics that he's been up to. So I actually think that the big issue is how does this sort of weigh in on the Merrick Garland decision on what to do?
Harry Litman [00:07:00] Another little development of January 6th, right? Oh remember that?
Steve Vladeck [00:07:04] The narrative that I think a lot of us were walking away from last night and this morning about Georgia, and I think it's actually really important to tie today back to last night, is that in many ways, Georgia portends a split in the Republican Party that I think many of us had been seeing, but not necessarily sure was actually firming up, between those Republicans who are willing to call out the white supremacy, the nationalism, the craziness, right? The folks who were not signing on to the objections to the electoral slates, and those Republicans who are all in whether for political expediency or because they're true believers. And I think today is going to harden that division. As we're recording this, we don't know yet whether Hawley and Cruz are still going to persist in their objections to slates of electors, but whether they do or not, this is a pretty powerful saw. You know, Mitch McConnell excoriating his colleagues.
Harry Litman [00:08:00] Yeah, I mean, it might harden it, but I think it's going to change it. Look, who is now public enemy number one for Donald Trump? Mike Pence. The tweet this morning that basically completely divorced him, and now you saw how Pence conducted himself in the Senate proceeding that he was the president now. They are, they are now irreconcilably divorced.
Steve Vladeck [00:08:26] Harry, I'm not talking about Trump specifically, I'm talking about Trumpism. If part of what Hawley and Cruz are doing is trying to position themselves in the Republican primary field for 2024, which oh, by the way, the Senate cannot just remove Trump from office, it can disqualify him from holding future office, which actually might be a boon to some of these folks.
Harry Litman [00:08:44] It'd be great for them.
Steve Vladeck [00:08:45] If that's the end game here, then I think the real implications beyond just the next two weeks are that maybe there is a group of more moderate, conciliatory Republican senators who actually will be willing to work with the Biden administration in a way that we wouldn't have seen because they were so unified during the tail end of the Obama administration, right? And maybe Biden's goal of actually trying to attract some five, six, seven, 10 Republican senators for at least some of his domestic agenda is actually, ironically, more attainable today than it was yesterday.
Harry Litman [00:09:19] Well, and also because they're less afraid of him, which we've always heard as this motivating force, even though they know he's a rogue.
Jennifer Rodgers [00:09:27] You know, it's still hard to see impeachment happening, though, for me. I just feel like it's going to be so easy for Republicans to say, 'listen, yes, he's terrible, blah, blah, blah. But, you know, he's gone in 10 days. What's the point? Let's just move along.' I just don't see getting 17 or however many of them that you need.
Harry Litman [00:09:49] Well, so let's at least stick with that for for a little bit. I think we'd all agree with Steve that it got more like, you know, there is the 25th Amendment, there is impeachment, and we should separate impeachment and removal. There's potential criminal prosecutions that have the, one of them would have the legal effect of barring him, is it really inconceivable that he, in fact, will be legally precluded from being a political candidate in public life? Everyone see that as just a big, big, long shot?
Jennifer Rodgers [00:10:23] I think it's a long shot.
Andrew Weissmann [00:10:25] Yeah, I, I agree.
Harry Litman [00:10:26] How about impeachment itself?
Andrew Weissmann [00:10:29] I think it's a long shot, even though I think that there's a political interest that people have to do it, and obviously he's at the nadir of his power, I just think it's, it's just too short a time, and there's just going to be this sense of, if you're doing it to remove him, he's gone anyway. So that can't be the reason, and if you're doing it because you don't want him to run again, it's like, you know what, let the voters decide. I just don't, I just don't see people in the next 10 days doing that. And I actually think on the Democratic side, it's probably better to focus on like a separate issue, which is like what, there really is a rule of law issue of what do you do about the presidency when you've got a president acting like this if you don't take action? I actually think that's the bigger issue.
Harry Litman [00:11:15] And by action, you mean criminal prosecution of the demonstrators?
Andrew Weissmann [00:11:19] I think I'd start with, like, are you going to investigate? Let's just take the secretary of state call, I mean, the idea of like did he do this, exactly what happened and what's the back story and are there any defenses, and did he do it with other people and institutions, which I think is to me, there's so many red flags. You want to know from Barr, you want to know from the US attorney in Atlanta who resigned precipitously, and there's so many people to interview. And to me, ignoring that raises sort of enormous issues about is the presidency going to be sort of de facto above the law.
Steve Vladeck [00:11:53] I hear all of this, and I think this is the responsible conversation about what to do with Trump, but there are anonymous officials being quoted in media reports today that Trump has, quote, "lost it." Right? There are White House advisers saying that he is not listening to anybody. He apparently banned the vice president's chief of staff from the White House today. I mean...
Andrew Weissmann [00:12:12] Steve, when I was in the special counsel's office, we heard that, so there was 2017. We heard that in the summer of 2017. Rod Rosenstein was talking about the 25th Amendment within days of being there, so I don't think that's new. We're just seeing a different manifestation.
Steve Vladeck [00:12:29] But Andrew, he has nothing to lose now. And that wasn't true before yesterday, right? Before yesterday, he had Georgia to lose, before yesterday he had today to lose. And I just think, you know, color me as someone who has not been a radical about removing Trump by any means necessary, but who thinks that someone in possession of the nuclear codes can do a heck of a lot of damage in 13 days. And I just, you know, I wouldn't so quickly give up the ghost that now that he literally has nothing left to do, and now that it's clear that everyone's going to turn his back on him, there's not going to lash out and some even a worse way than he did today.
Sam Vinograd [00:13:03] Yeah, I mean, let's call a spade a spade. All these guys I'm scrolling through Twitter, I'm seeing all these folks, the national security adviser may resign. All these people that enabled President Trump are somehow agreeing that a domestic terrorist attack on our nation's capitol is a bridge too far, and at midnight hour are threatening to resign. I think the fact that we lost, that they lost Georgia plays into that, right? Trump is no longer useful to them, but we have to acknowledge the fact that if we have these resignations, you bring up the nuclear codes Steve, there is a real question about whether in these death throes of tyranny, President Trump tries to issue some highly dangerous, erratic official order, whether it's for a nuclear attack, a missile strike. There are any number of things that that could happen. Absent impeachment, absent the 25th Amendment, do the people around him either resign or fail to carry out his orders, which, by the way, they've done for four years? And so to me, one of the questions is, do we see the national security adviser? Do we see this acting SecDef? Do we see the chairman of the Joint Chiefs of Staff fail to perform the duties of their office because they're asked to engage in unlawful activity? I think that is probably a more realistic scenario right now, and if asked to do something and if they're not willing to do it, fail to carry out those orders.
I don't see Mark Milley, the chairman of the Joint Chiefs of Staff or even O'Brien at this point, Pompeo I'll leave in a different camp, launching a nuclear strike and launching a missile strike against Iran right now because President Trump is clearly off his rocker. And I'm sorry to be a cynic on this and highly pessimistic, but again, these guys have carried his water for four years and all of a sudden they're growing a spine as he is, what, 13 days away from leaving office, and he lost Georgia and is no longer useful. So I think that is probably a more realistic scenario. Last point is, we are going to see resignations. I think it is possible the national security adviser resigns and other national security officials. This was already a high risk period because of the transition to a highly vulnerable moment for our country. Add to that the fact that the transition started late, various national security agencies didn't fully participate under it, and we're under a live cyber attack. These resignations, not to mention the terrorist attack ongoing in D.C., are going to add even more disruption, an even heavier load to an already strained national security apparatus. So, as Harry knows, I am often the angel of doom. This time, I really mean it. This is a very, very dangerous period from a national security perspective, and Joe Biden is going to be inheriting a mess in that perspective.
Andrew Weissmann [00:15:34] The one thing that I can see being sort of the counter argument is like, what's happened to DOD? And that I could see being the straw that people go, we have to take action.
Sam Vinograd [00:15:45] I think that the acting secretary of defense has proven himself to be - this guy, Chris Miller - to be a Trump enabler, Trump loyalist, a Trump acolyte, other Trump loyalists at the Pentagon have stymied the transition to put it diplomatically. I think that today was a bridge too far, and we've heard Pentagon officials, I believe the acting secretary of defense spoke up or maybe it was the chairman. I do not see them. And the chairman spoke of previously implementing what are viewed as unlawful orders. President Trump is no longer viewed as a legitimate president, that's clear. Now, we have kind of a consensus amongst a lot of Republicans on Capitol Hill that that's true. So I don't see DOD, for example, last week and I was on air talking about potential Wag the dog military strike on Iran. I don't think that's probably going to play out right now because Trump is no longer viewed as a legitimate, lawful commander in chief.
Harry Litman [00:16:39] I think they would actually disobey the order. And I'm basically with Steve here, I mean, any of these things would be extraordinary. But I think he is hugely weakened today in a couple of ways. First, it's been all the way through the lockstep strength of McConnell and the Senate, that it's been baffling, frustrating, craven, et cetera. But that's now gone, at a minimum there is nothing like a monolithic kind of support, and probably there's a consensus that he is really off his rocker. And then second, the Trump forces now seem like they embody domestic terrorists, proud boys, etc. and they themselves seem like part of the problem to the average American. There will be very credible voices, I saw Barry McCaffrey on TV about an hour ago truly calling for his removal. And at least, I myself think we can muddle through the next couple of weeks. But the urgency of making sure he's pithed or disabled from serving in the future I think is compelling. I mean, we have several ways to look at it, including these ragtag people who stormed the building. But we saw assaults and there's very likely to be some kind of potential culpability for the death of this woman. Even if the law enforcement fired the shot, protesters could still have criminal liability for the murder.
Jennifer Rodgers [00:18:12] Yeah. So there are different buckets of conduct, right? That's at issue. I mean, you have the kind of standard offenses that you would find on federal property when people storm in, you know, you have property damage and breaking and entering and those sorts of crimes, right? For the rioters. You have this woman who was shot, I, we don't know yet all the facts. You have all of that, you have some injuries aside from that, and then you have the kind of different bucket of potential offenses, which are the sedition and the rebellion or insurrection type of stuff, right? Or Trump, potentially for Trump Jr., for Giuliani, for Eric Trump and other people who caused all of this, right? So, you know, I think at this point we have to have an investigation, clearly. I mean, even Lindsey Graham is calling for some sort of task force to investigate what happened. And so I don't I don't think that'll be a big decision. The question, of course, will come when you've gathered your evidence and try to figure out who you actually think you can charge.
As you alluded to earlier, Harry, one of the statutes, 18 USC 2383 prohibiting rebellion or insurrection carries as part of its penalty, incapacitating someone convicted of that offense from ever holding office. So that is, if you could convict President Trump of that offense, then that would be one way in which we could be sure he would never return to federal office. But, you know, it's funny, we spend a lot of time thinking about whether Trump will be investigated and prosecuted for everything from tax offenses to the Ukrainian matter to this stuff with the election. And you can debate that forever, then all of a sudden today it's like, OK, well, at least in one way, it is entirely clear that he will be investigated. Obviously, we don't yet know whether he will be charged. But this, at least that question is pretty easy, I think, for Merrick Garland. He must be investigated for what happened today for sure, and I don't even think the Republican Trump types are going to complain about that one.
Andrew Weissmann [00:20:12] So I had two points. One is there is another potential charge because there were some sort of explosive devices that seem to be used and found. And the reason I think that's important is, I'm from New York and during the Black Lives Matter protests, after the George Floyd murders, the book was thrown at various violent protesters in New York, including two really young kids who the charges are they did something terrible, which is they had Molotov cocktails and it exploded and a van was hurt. They knew that there was nobody there, but that obviously there was the risk of people being hurt. And it was the attorney general, Attorney General Barr and Richard Donahue, the then Eastern District of New York US attorney, now the DAG, who basically overruled everybody, there was a lot of dissent within the department about sort of way overcharging, and it's completely maxed out. And, of course, those are people of color, and I find today so upsetting for so many reasons, but the racism and the way in which it was handled is I mean, it's impossible not to think of it in terms of the disparity, in terms of the different types of people involved being treated so differently.
And so when you were, Jennifer, talking about this, I was just so reminded about that case in New York where people were really upset at the way that this Department of Justice handled it. I have to say, the one thing I would say in the president's defense that makes this a little harder, not that he shouldn't be investigated, is that he was not personally breaking in. You have to tie it to him, and you have to tie the knowledge and the, not just that it was a risk that he knew about, but it's like this was really foreseeable and he wanted it to occur. So, I mean, there is a harder criminal case to be made in terms of the most serious charges, and I do think that it's something that needs to be investigated. So I'm not saying that issue I agree with, but I actually think compared to when I put my sort of prosecutors hat on, think of what do I think is more likely? I smell more blood in the Georgia secretary of state call and the suite of calls that I suspect happened like that, than I do in what happened today. As deplorable as it was.
Jennifer Rodgers [00:22:37] Although one thing that today might do is kind of break open that dam.
Andrew Weissmann [00:22:42] Yes.
Jennifer Rodgers [00:22:42] And by the way, one nice piece of circumstantial evidence is the fact that it took him hours to say anything at all, even watching what was happening, right?
Andrew Weissmann [00:22:50] Only after Biden shamed him and said, look...
Jennifer Rodgers [00:22:53] I know, right. So that's a good piece of evidence that he really did mean for it to happen and so on. But putting that aside, I mean, the point is, I think once you start looking at this, you probably throw in some other stuff, too. And next thing you know, if you're going to bring in an indictment, why not throw in some of these other things, too, if you're already going that far? So that, that may be something that we see from this.
Harry Litman [00:23:12] We should stress, you said knowledge, Andrew, but really, they don't have to prove that he knew it. They basically have to prove that it was, you know, sort of a risk that he knew might be run and that would suffice for, or do you disagree?
Andrew Weissmann [00:23:28] Well, you have to show... like if the crime is breaking and entering. If the crime is destruction of federal property, if the crime is illegal possession of a firearm in D.C., you have to tie that to, he has to know that or want that to happen.
Harry Litman [00:23:44] Well, I was actually talking about the riot itself and how that would be tied to either a seditious conspiracy charge or an inciting rebellion charge.
Andrew Weissmann [00:23:54] Yeah, I'm just look, I'm putting my defense hat on. And, you know, what I would argue is, you know, obviously you have to do a factual investigation, but you would say there's nothing wrong with supporting a peaceful protest. Right? I mean, that's what our country is founded on. You could just hear the opening on this and...
Harry Litman [00:24:12] You're shaking your head, Jennifer Rogers, former prosecutor? You guys gone soft. Ok, keep going.
Jennifer Rodgers [00:24:17] Putting together the rebuttal in my head, as we speak.
Andrew Weissmann [00:24:22] Yeah. I mean, I'm just saying, look, you have to tie it. That's always the problem with somebody who's at the top of a food chain. I mean, I've done mob cases where you, or I've done Enron, where the top person gets to have this sort of deniability, and the challenge is linking it up to that's something that they wanted to see occur.
Harry Litman [00:24:41] All right. But I'll just repeat that this is very interesting, and I was thinking of that example because we really go toward the bottom and then boom, vault up to Trump in terms of the actors here that will sort of even matter in the investigation and how you try to put this together if you're going that route. Sam, I wanted to ask you about the international context here. I mean, we assume that people are looking in horror or maybe laughing around the world, at would seem to be pictures more appropriate to a banana republic. What about the actual, though, sort of leadership structure? What, do you have a sense of you know, how nervous are, say, the prime ministers of Europe and the, and the US allies? What's going on within that community?
Sam Vinograd [00:25:31] Well, I will note that what we have seen today is a really historic, widespread, immediate, rapid fire condemnation by countless world leaders. Our adversaries are rejoicing right now. Countries like Russia and China have launched disinformation attacks for years to undermine the credibility of the US-led liberal democratic order. So the fact that the US capital is under armed assault in an attack incited by the president makes our adversaries quite happy because the US can no longer be taken as a credible champion for democracy. In terms of what our allies are doing, our allies have, for the most part, kept relatively quiet over the last four years as President Trump has assailed democracy here in the United States, likely out of veneration for their relationships with the United States for the past couple of centuries, and probably a little bit out of fear that Trump would respond with retribution, cut off funding and more terrorists and that kind of thing. They changed their tune today, and we saw, again, widespread condemnation from our allies. In terms of are they worried?
I think that our allies know that Joe Biden will be president on January 20th. So I think they're aware that there will be a transition of power and that Biden will start to try to heal this country. The question that is probably kind of percolating around foreign capitals right now is, can the United States ever regain its credibility as a champion for democracy? And how long will that take? It's not like Joe Biden assumes office on January 20th and all of a sudden the United States regains its credibility. Plus, the last point is, Harry, it is a fact that the federal government will be incredibly distracted in 2021, right? We're trying to heal ourselves internally, we're dealing with COVID-19, we're dealing with the cyber attack, we're dealing with an escalation in domestic terrorism. How much credible weight does the United States have to throw around on the world stage in light of the havoc within our homeland? That, I think is probably the strategic question, so are they trying to balance against all of that? That, I think, is probably a primary focus right now.
Steve Vladeck [00:27:45] I don't know what's going to happen in the next 13 days, but it's going to be a hell of a lot more than nothing.
Harry Litman [00:27:49] All right. So there are dozens of questions and they'll probably be doubling every hour as this dramatic day still plays out. Hopefully, we'll be back to talk about it, but as a first swipe, thank you very much everybody. Thanks Steve and Andrew and Jen and Sam, and glad to be with you on a historic day and try to make sense of some really astonishing events.
And thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts, and you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer, or general questions about the inner workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Our gratitude goes, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
