The Case for Prosecuting Trump: Why Criminal Charges Are Still Possible — and Needed
By Amy Goodman* – Democracy
Guests: Elie Mystal, justice correspondent for The
Democratic House Speaker Nancy Pelosi says she has authorized
a 9/11-style commission to further investigate the January 6 insurrection and
the actions that led up to it, as calls grow for the criminal prosecution of
former President Donald Trump after his acquittal in his second Senate
impeachment trial. The Nation’s justice correspondent Elie Mystal says House
impeachment managers presented “a fairly compelling case for criminal
liability” for Donald Trump over the January 6 insurrection at the U.S.
Capitol. “I think there’s a case for indictment. I think we should at least
try,” he says.
This is a rush
transcript. Copy may not be in its final form.
AMY GOODMAN: House Speaker Nancy Pelosi has authorized a
9/11-style commission to further investigate the deadly January 6th
insurrection, as well as the actions that led up to it. This comes as calls are
growing for the criminal prosecution of former President Donald Trump as one of
the last paths left to hold him accountable for the attack, after Saturday’s
vote in the Senate fell short of the two-thirds majority needed to find him
guilty. Seven Republicans voted with Democrats to convict. Republican Senate
leader Mitch McConnell was not among them, but during his speech Saturday, McConnell
intimated Trump could still be held criminally responsible in a court of law.
SEN. MITCH McCONNELL: Put another way, in the language of
today, President Trump is still liable for everything he did while he was in
office, as an ordinary citizen, unless the statute of limitations has run,
still liable for everything he did while he was in office, didn’t get away with
anything yet. Yet.
AMY GOODMAN: For more, we’re joined by Elie Mystal, The
Nation’s justice correspondent, author of the magazine’s monthly column, “Objection!”
His recent column
is headlined “Republicans Won’t Convict Trump—Because They Won’t Convict
Elie, in the lead-up to this, you wrote another column
headlined “I Don’t Just Want Trump Impeached. I Want Him Jailed.” And you
argued, quote, “Trump should be charged with incitement of criminal acts, at
the very least. … Trump is not a defeated politician; he is a criminal on the
loose. He must be treated as such.” Can you take that further?
ELIE MYSTAL: Yeah. So, I think that the House impeachment
managers actually laid out a very good criminal case against Donald Trump. Now,
criminal indictment was not the standard that they had to meet for impeachment.
They just did that for funsies. The Senate could have convicted without finding
criminal liability. But Jamie Raskin and the rest of the managers actually did
lay out, to me, a fairly compelling case for criminal liability based on not
just his speech on January 6, which was incendiary, but his actions leading up
to January 6th and how that can potentially be enough to indict him for
It’s a tough case, I’m not going to lie. Like, it is
difficult to — and it should be difficult to — indict and convict anybody
for incitement based on just words. That is a fundamental part of the First
Amendment’s protection on free speech. But telling people “Let’s go storm the
Capitol,” for instance, is not protected speech. And what Trump did is much
closer to unprotected speech than it is to protected speech. So I think there’s
a case for indictment. I think we should at least try. Republicans have failed
this country so completely that now it’s up to law enforcement as the only
place that can try.
AMY GOODMAN: So, speaking of law enforcement, the D.C.
attorney general and U.S. attorney there are possibly weighing incitement of
violence criminal charges against Trump. Can you explain what that would look
ELIE MYSTAL: Yeah. So, well, I want to roll back for a
second, right? Because the D.C. attorney general, they still haven’t arrested
all of the people who stormed the Capitol, right? So I kind of almost want them
to slow down, right? They’ve only arrested about 200 of the 800 people that
stormed the Capitol. Every person who set foot in that building is a criminal.
Every single person who set foot in that building at the very least committed
federal criminal trespass. And the current law enforcement hasn’t gotten around
to finding and indicting all of those people. So they’ve got a lot of work to
do beyond President Trump, beyond former President Trump.
However, once they do the bare minimum, which is finding and
charging all 800 people who stormed the Capitol, then they can get around to
Trump, who — yeah, again, the standard that they talked about at the
impeachment trial is actually the right standard for a criminal case. It’s
called the Brandenburg test. It’s how we determine whether or not speech is
protected or unprotected. And Trump likely failed all three elements of the
Brandenburg test. What he said was likely to cause violence, was likely to be
interpreted by the crowd as a call to violence. It was likely to incite
imminent lawless action. I mean, literally, he was telling them to march down
the street that day, and, in fact, did cause imminent lawless action.
One thing that I like people to remember when thinking about
this as a criminal case: What did he expect them to do at the Capitol? If you
think about like a free speech rally or a protest rally, there was nothing
organized at the Capitol. There was no slate of speakers at the Capitol. When
he tells them to march down to the Capitol to cheer on their Republican
colleagues, there was no way for those people to give — that was a closed
session of Congress, right? So, when he tells people to march to the Capitol,
where there is no event planned, where there’s no permit gotten, to go see a
closed session of Congress, the only thing they could do to carry out his
wishes was to illegally trespass into the building and do what they did. So,
that’s going to be, I think — that is a key element for people to remember
when trying to determine whether or not his speech was protected or should be
protected or not.
AMY GOODMAN: So, can you talk about what Ron Johnson is now
saying? The very close Trump ally, a Wisconsin Republican senator, who was
mocking any claims that this was an armed insurrection, saying that — I mean,
you have, of course, the images of the gallows that were erected, the zip ties,
the hurling of fire extinguishers, using baseball bats to smash windows,
throwing flags like spears at police officers and beating them with these
flagpoles, the stun baton that’s clearly in the waistband of the man who is
sitting in Nancy Pelosi’s office as they steal things from her office. But
there you have Ron Johnson, just weeks later, saying, “Armed insurrection?
You’ve got to be kidding.”
ELIE MYSTAL: Look, Amy, to be honest, I can’t explain what
nearly any of these Republican senators say or think. I have never lived one
day of my life as much of a coward as Ron Johnson. So I don’t know what it’s
like to be that afraid of the truth that you’re willing to lie to people about
what they saw with their own eyes. So I can’t explain what he’s saying.
As you pointed out, it was clearly an armed insurrection.
The first guy through the window was wearing tactical gear and carrying the
Confederate flag — the first guy through the window, that he had to break
down. This was an armed attempt at a rebellion. There is no denying that.
You know, Republicans are invested — and this is why you
need — this is why — even though we can talk about the strategy of
impeachment, this is why you need an impeachment trial to establish the record.
This is why Nancy Pelosi has commissioned the investigation into what happened.
You need to have a public record of what went on, because Republicans will try
to memory hole the entire day. Like, it just — it doesn’t work for them to
acknowledge that that day existed, so, in the Republican mind, we had a
— we didn’t have a leap year, we had a skip year in 2021. We went from January
5th to January 7th, without anything between, according to Republicans. That’s
how they’re going to try to make the rest of the country think. And that’s why
we need things like a commission, like the trial, to remember what happened.
AMY GOODMAN: Very interestingly, you have Ohio Congressman
Jim Jordan, like many of the conservatives, saying that cancel culture is the
biggest threat facing the United States — while one state party,
Republican Party, after another censures those senators who voted to convict
ELIE MYSTAL: It’s actually a great way to expose the
Republican hypocrisy about cancel culture, right? Because there is nothing more
canceling than censuring people for what they voted on or what they said, when
their job is to vote and say things, right? There is no lower form of canceling
than what Republicans themselves do. And it’s just another way to understand
the Republicans are inveterate hypocrites that do not argue in good faith ever.
So, yeah, what the Republicans are doing is pathetic, frankly.
And I do give — I do give, almost grudgingly, but I do
give credit to the Republican senators and the Republican congresspeople, the
few, the proud, who are saying, “Enough of this,” and at least here at the end.
I mean, it’s late in the game. It’s late in the game to join the side of truth
and decency, but I do give, you know, the Bill Cassidys and the Mitt Romneys of
the world and the Richard Burrs of the world, I guess, credit for, you know, at
the very end at least, like doing the right thing.
AMY GOODMAN: Well, let’s go to South Carolina’s senator, the
Republican Senator Lindsey Graham, speaking on Fox News Sunday, where he
falsely claimed there were grounds to impeach Vice President Kamala Harris,
that she would be next.
SEN. LINDSEY GRAHAM: I condemn what happened on January the
6th, but the process they used to impeach this president was an affront to rule
of law. He’s the first president to ever impeached — be impeached without
a lawyer, without a witness, without ability to confront those against him. And
the trial record was a complete joke, hearsay upon hearsay. And we’ve opened
Pandora’s box to future presidents. And if you use this model, I don’t know how
Kamala Harris doesn’t get impeached if the Republicans take over the House,
because she actually bailed out rioters, and one of the rioters went back to
the streets and broke somebody’s head open. So, we’ve opened Pandora’s box
here, and I’m sad for the country.
AMY GOODMAN: Senator Graham seemed to suggest Vice President
Harris could be punished for expressing support for a bail fund for Black Lives
Matter protesters in Minnesota last summer who were protesting the police
killing of George Floyd. Elie Mystal?
ELIE MYSTAL: It’s interesting, right? It’s interesting that
he went straight for Harris, isn’t it? I mean, I wonder why he went for the
person who’s vice president as opposed to the person who’s president now. Oh,
yeah, she’s a Black woman! The racism of that man is so on display every day.
And I get that he’s from South Carolina, so people are just like, “Well, I
guess it’s South Carolina.” But it’s not OK. These people are so openly and
bitterly racist. It’s bothersome.
However, the other — there is funny here, right? And
that is that Lindsey Graham wants to impeach a Black woman for a legal act,
which is bail. Like, bail is legal. Like, whatever you think about why she
bailed — and again, why they think that this was a bad thing is drenched
and inseparable from their racism. But whether or not you think bail is legal —
the reasons for bailing somebody out are good or bad, paying somebody’s bail is
clearly legal. That’s why we have it. We have literally entire organizations,
called bail bondsmen, whose — their whole job and whole business model is
to pay people’s bail. So, the thought of impeaching her for a legal act is just
But there’s a political reality here, too, right? And it’s
something that I think Democrats are too easy to forget. Of course, if the
Republicans take back control of the House, they will impeach people. Of course
they will. They would have impeached Hillary Clinton, if she had won the
presidency, for stuff that she did as secretary of state. They would have
impeached her for Benghazi, which killed fewer Americans than the riots on
January 6th, just fyi. They would have impeached her for Benghazi. If they
didn’t impeach her for Benghazi, they would have impeached her three other
times for things I don’t even know happened yet, right? The Republicans have no
shame. The Republicans have no fealty to the rule of law. All the Republicans
know is power, and they use that power completely, whenever they have the
chance. So, make no mistake: If the Republicans ever control the House again,
they will impeach whoever happens to be the Democratic president, if there is
still a Democrat in office when they control the House. That will just happen.
AMY GOODMAN: So, we interviewed Ralph Nader on Friday,
strong proponent of having witnesses. You, too, feel that the Democrats failed
in that way, that having witnesses come forward could have made the difference.
ELIE MYSTAL: Well, see, OK, there’s slight difference,
right? I don’t think that having witnesses would have made a difference in the
outcome of a trial, because, again, Republicans are racist to the core, they
are hypocritical to the core, they’re intellectually dishonest to the core.
Nothing was going to change the Republican mind. Witnesses, 10 witnesses, I
think Jamie Raskin says — you could have called a hundred witnesses; they
would have done the same thing. Jamie Raskin was absolutely right about that.
You cannot change a Republican mind.
The difference is that I don’t live my life based on what
the Republicans think or don’t think, right? If I only did what Republicans
allowed me to do, instead of having a law degree, I’d be shining shoes at Grand
Central, OK? So, like, I don’t live in the paper bag that is “What will Lindsey
Graham do next?” because I don’t care about that. What I care about is the American
people. And I do think that bringing witnesses, bringing live testimony to
bear, would have highlighted even more, for even more Americans, the level of
danger this country was placed in and exactly who placed them in it.
So, yeah, there are some procedural issues. Oh, well, Kevin
McCarthy, he would have made you go for a subpoena. Fine, don’t call Kevin
McCarthy then. Put the cops on the stand. I want to hear Eugene Goodman. They
gave him a medal. I want to hear his testimony of what he saw that day, what
they called him that day, what happened to him that day. Put him on the stand.
Put one of these staffers that had to spend two hours hiding under a desk
— put one of them on the stand. Do everything you can.
And I’ve said this before. The point of this impeachment
trial was not to convince Republicans. Republicans are unconvincible. The point
was to expose Republicans for the dirt that they do. And witnesses would have
done a better job doing that. Every prosecutor —
AMY GOODMAN: I mean, it did — it did change some
Republicans: the Louisiana Senator Cassidy, the North Carolina Senator Burr.
ELIE MYSTAL: OK. Look, I think the actions changed their
minds; I don’t think that the impeachment trial. Like, I don’t think that if
Jamie — Jamie Raskin was great. Stacey Plaskett was great. The impeachment
managers were great. If they were average, I don’t think that would have made a
— like, I don’t think it was the strength of their legal arguments that made
Richard Burr — you know, I think that what happened is that Donald Trump sent a
mob to kill congressmen to their workplace, and a couple of Republican senators
were like, “That’s not OK. That’s not OK.”
AMY GOODMAN: So, let’s talk about some of the information
that’s come to the surface about the insurrection participants, The New York
at least six people who were part of the mob that entered the Capitol worked as
security for Trump ally Roger Stone, were linked to the far-right Oath Keepers,
at least 57 state and local Republican officials were at the Capitol insurrection.
Almost all have faced calls to resign; two have stepped down, I believe, at
this point, both arrested for taking part in the riot. In one case, a Florida
county commissioner, Joe Mullins, sponsored buses to transport people to D.C.
In the lead-up to the January 6, he said on a local radio program, “Maybe there
are some liberals I’d like to see their heads cut off.”
But let’s talk about, for example, the Oath Keepers and the
actual number of law enforcement people, like Caldwell, who have had top security
clearance, who worked for the federal government. In the end, they had to put
National Guardsmen through the test and removed something like 12 of them, that
they might have allegiances to the white supremacists who were rioting.
ELIE MYSTAL: I mean, Black people have been saying this for
a while, right? White supremacy and law enforcement are kind of the same thing.
They work for the same people. They are the same people in many cases. And it’s
not all of them, but enough of them to make a difference. You know, I always
like to say the phrase is not “One bad apple means that we should just ignore
it, and people should not care if that bad apple kills them.” That’s not the
phrase. The phrase is “One bad apple spoils the bunch.” And law enforcement in this
country is spoiled by white supremacy. There are white supremacist terrorists
in every police organization in this country. And until we weed them out, we
cannot have justice in law enforcement — until we weed them out, not until we
look over them, not ’til we flood them with — we’ll add some 10 more cops, and
nine of them will be good. That’s not how you — you have to weed out the
bad apples before they kill people.
And that’s what the insurrection, the riot on January 6,
just exposed, just how intertwined some in law enforcement are with very openly
white supremacist and violent organizations. That’s not an accident; that’s a
feature of our law enforcement system. And it’s led to the death and brutality
of Black people and Brown people. And we tell people this, and we complain
You know, like, what’s going happen now? Right? People
— we’ll prosecute some of them, right? We’ll prosecute — we won’t — for
reasons passing understanding, we won’t prosecute all. They’ll come up with
some excuse to not prosecute all of them. We’ll prosecute some of them. And
then the kinds of screening and whatever that went into the National Guard to
make sure that none of the actual defenders of the inauguration were part of
these white supremacist groups, are you going to keep doing that in the
National Guard? Are we going to port that to local law enforcement? Is NYPD
going to screen everybody through a white supremacy screener to make sure that
none of them are members of Oath Keepers or Proud Boys or are on Facebook
sharing memes from the Oath Keepers? Are we going to do that or not?
And the answer most often in this country is that white
people will not do that, will not take it through, will not think it through,
will not do what is necessary to protect us from them.
AMY GOODMAN: Elie Mystal, I want to thank you so much for
being with us, The Nation’s justice correspondent, author of the magazine’s
“Objection!” his recent column
headlined “Republicans Won’t Convict Trump—Because They Won’t Convict
Next up, we speak with the Ecuadorian presidential candidate
Andrés Arauz, a protégé of former President Rafael Correa. Arauz won the first
round of the election after vowing to fight austerity, poverty and the
pandemic. Stay with us.
AMY GOODMAN: “Quimbara” by the late Celia Cruz and the
Dominican salsa musician Johnny Pacheco, who died yesterday at the age of 85.
He founded the Latin music label Fania Records, credited for bringing salsa to
a worldwide audience.
* American Award-winning investigative
journalist and syndicated columnist, author and host/executive producer of
Democracy Now! www.democracynow.org