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The Case for Prosecuting Trump: Elie Mystal on Why Criminal Charges Are Still Possible — and Needed

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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.

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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 Themselves.”

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 criminal incitement.

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 like?

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 Donald Trump.

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 — aah!

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 Times reporting 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, HuffPost reporting 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 about this.

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 monthly column, “Objection!” his recent column headlined “Republicans Won’t Convict Trump—Because They Won’t Convict Themselves.”

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.

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