Trump's Trials - The January 6th insurrection lies at the center of Trump's legal battles

Episode Date: January 6, 2024

This week on Trump's Trials, host Scott Detrow and Domenico Montanaro are joined by former Deputy Assistant Attorney General Harry Litman. This week's focus: The Supreme Court officially takes up former President Donald Trump's appeal over Colorado's decision to disqualify him from the ballot. We also talk about how politics has changed in the three years after the January 6th attack on the Capitol. And we dive into the central question surrounding the federal January 6th election interference case — is Trump immune from criminal prosecution?Topics include: - Supreme Court decision to weigh in on Colorado disqualifying Trump from the ballot- Presidential immunity - Politics surrounding January 6th- Trump & Biden campaigning on January 6th Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Three years ago today, a violent mob attacked the U.S. Capitol. Its goal? To try and block the certification of the presidential election. From NPR, this is Trump's Trials. I'm Scott Detrow. This is a persecution. He actually just stormed out of the courtroom. Innocent until proven guilty in a court of law. The January 6th attack on the Capitol was the culmination of a month-long effort to overturn the results of the 2020 presidential election, an election where Joe Biden defeated Donald Trump. And three years later, it is still a central theme of American politics.

And most importantly for this podcast, it is at the heart of two of the criminal cases that Trump is currently facing. Trump frequently refers to that day as beautiful. He says his supporters facing criminal charges are January 6th patriots. He's also making the claim in federal court that since the attacks happened when he was president, he is immune from prosecution. A federal appeals court will hear arguments on that next week. And the insurrection and the Constitution's language barring those who engaged in insurrection from federal office is also the basis for Colorado and Maine disqualifying Trump from their primary ballots. On Friday, the U.S. Supreme Court decided to take up Trump's appeal of the Colorado Supreme Court's ruling. We'll look at what comes next in that case.

And as you can tell from that intro, it is a big week on this front. And to talk about it all, I'm joined by my colleague, senior political editor and correspondent, Domenico Montanaro. Hey, Domenico. Hey, Scott. Happy New Year. Happy New Year to you. Okay, so, Domenico, we were expecting that the Supreme Court at some point would take up this Colorado case. There's clearly a lot to talk about when it comes to January 6th and all of these cases. But right now, let's start on this immunity question,

because that is the heart of this upcoming federal court hearing. Trump is saying that he's immune from any criminal prosecution for actions taken while in office. You know, the Constitution does not explicitly address presidential immunity, and that's why the courts have to weigh in and decide the limitations of immunity. You know, he's also arguing that because he was not convicted by the Senate during his second impeachment trial, and this was the impeachment centered on his actions on January 6th, that he cannot be subject to criminal prosecution either. I guess that's some sort of specious double jeopardy claim, I suppose. But now these arguments may seem like

a stretch and many legal analysts believe that they are. Nevertheless, you know, they are questions that have never been asked before and could very well end up before the Supreme Court after the D.C. appeals court weighs in. However that immunity question plays out will determine whether the January 6th federal election interference case will even go to trial. So we've got that hearing. We also, in the coming days, will hear closing arguments in the New York civil fraud trial. And oh yeah, in a little more than a week, we have the Iowa caucuses where Trump is the leading candidate at the moment. A lot to talk about. When we come back, we'll be joined by Harry Littman to do so. This message comes from NPR sponsor SAP Concur.

Stuart McLean, CFO of Brother UK, shares how SAP Concur's audit and expense tool supports their work across multiple offices. Across Europe, we have a presence in 17 countries, which obviously involves 17 different tax regulations, 17 different fiscal authorities. You know, and this makes life complicated for us. But actually with SAP Concur, we're able to configure the system correctly for each of those countries. We're able to configure the audit rules correctly for each of those countries. So actually it gives us a lot of efficiency and good governance as well. So actually for us, a solution like SAP Concur makes life so much easier.

Otherwise, we'd be forever checking back to regulations, checking back to documentation. Those are automatically updated in the system for us. So that's, you know, it's a big tick in the box from a governance perspective and an efficiency perspective as well. Visit Concur.com to learn more. We're back and we are joined by Harry Littman. He was a deputy assistant attorney general during the Clinton administration, among many other titles. Welcome back, Harry. Thanks, Scott. Good to be here.

So let's start with the court's Friday announcement that it's going to take up the Colorado case. This is the question of whether or not Trump is eligible for office due to the 14th Amendment. What did you make of the court's announcement? You know, it's like a tsunami. We sort of expected it to happen. But nevertheless, there were two things to note about it. First, they actually announced it Friday afternoon. And they don't always do that with Friday decisions.

They can wait till Monday. So they are so much running and jumping the gun that they didn't want to lose those three days. And second, they set a calendar that is warp speed for the Supreme Court. Trump has 10 days to file a brief on the merits. And then the other side is 13 days. And the oral argument is going to be in a month, February 8th. That is really kind of record sprint all the way to the end. It is a very fast pace.

At the same time, though, probably not fast enough to give clarification to primary ballots, which are the question here. That was the primary ballot that Colorado ruled on, that Maine ruled on. Maine Secretary of State told us that she really needed to know by late January because of deadlines for getting ballots printed into overseas voters. Seems like this is going to be more of a general election clarification. So the people who brought the challenge to get him off the ballot and won in Colorado, they asked the court to do it even more quickly along the lines you were just talking about, Scott. But, you know, the court is dancing as fast as they can.

This is blindingly fast. And really what matters more is the general election for a number of reasons, including legal reasons. In some ways, the craziest month maybe ever in Supreme Court history. Both these cases, if they take immunity, are A, huge legally, but B, huge politically. So all eyes are on them in a way that I think they would dearly like not to be the case, but they're stuck. Okay, let's shift gears to the immunity question, because that's going to be in front of a federal appeals court on Tuesday. What do you make of this question at the heart of the argument? Trump's lawyers arguing that there's absolute immunity from things that happened during

Trump's time in office. You know, I don't think it's going to fly, but the Supreme Court has never held expressly that he doesn't. But they've held a lot of things that kind of lead to that conclusion, not to mention just from a common sense perspective, his argument would lead to his early position of being able to shoot somebody on Fifth Avenue. So I don't think it'll fly. And even the sort of more limited submission, hey, as long as I'm in the outer perimeter of my official duties. That might fly, but it won't fly on the facts, because I think any court would find this is not the sort of thing that presidents are supposed to

do. I mean, Domenico, the extreme way that Trump's legal team is arguing this just seems to me to go against the basic founding ideas of the country, that it's a nation of laws and that presidents are not kings. This just seems to fly in the face of that. Well, the Trump legal team's a lot like the Trump political team. They throw anything at the wall and see what'll stick. You know, I mean, they're filing motions to say that, you know, this judge should recuse themselves or this prosecutor is biased. And they're actually making this process have to go through and have people consider this kind of thing, even if it's seen as frivolous and winds up getting thrown out. And as Harry notes, that just means that it lengthens this entire process. And really, that's the goal here.

There's one other argument that he's making that I have more questions about. And Harry, I'm curious how you read it. That's the separate argument about impeachment, the fact that Trump was tried for this already and found not guilty by the Senate in 2021. Ridiculous, I think. And it's going nowhere. What he's saying is the clause in the Constitution says if you're convicted, you can still be tried in the criminal courts. And he wants somehow to say that means if you're acquitted, you can't be. It just doesn't follow. It doesn't make sense.

And no court's going to adopt it. That second argument really is, you know, easy, low hanging fruit for the courts. It's the first, the immunity where all the action is. And there were 57 senators who voted for his guilt. Right. It wasn't like a majority of senators voted to acquit him. Not that that's the standard. Right. And it's certainly not the standard in a court of law where it needs to be unanimous. But, you know, in a Congress that's this closely divided to get 57 votes for something is still a pretty big deal. And that gets to the political point I want to talk with you about, Domenico, because you had many Republican senators voting Trump guilty. You had Mitch McConnell trying to have it both ways,

voting not guilty, but then delivering a speech blaming Trump for January 6th, saying that he could face criminal charges. That's what he is now. But if you had told me that week, if you had told me in January 2021 that three years later, Donald Trump would not only be remaining politically relevant, but would be a contender for the presidency and would be embracing what happened on January 6th, I would have had a really hard time believing you. Just how do we think about the way the politics of January 6th have shifted, especially with Republican voters? I agree. And I wouldn't have told you that. shifted, especially with Republican voters. I agree. And I wouldn't have told you that. So you wouldn't have been surprised because I wouldn't have said that I would have thought this would make him the front runner far and away for the Republican presidential nomination three years to the day after January 6th. But yet here we are. And we saw a poll out this week from

the Washington Post and University of Maryland that tried to measure some of these sentiments among Republicans. It's amazing how far apart Republicans are from Democrats and independents on this question of Trump's guilt on whether he bears any responsibility for January 6th. In fact, small, small percentages of Republicans, only 14% of Republicans said that Trump bears responsibility for that day. That's down from 27% in 2021. Still not huge numbers, but the fact that three years later it's become this divisive and that there's no consensus really shows the fracture that we've seen where the Republican primary voters fully believe almost everything Donald Trump says, and he's highly, highly, highly unpopular with independents and Democrats. And that's all going

to come to a head if Trump does win the nomination into a general election. And law guy here weighing in on the politics, when you think of all the forks in the road of the last several years, that one moment with McConnell, who was obviously saying that he was guilty and should have been convicted, stands out to me as the absolute road not taken. That would have been such a straightforward and condign way, if I can use the legal term, to have solved this national nightmare. And he blinked. Because if McConnell votes guilty, then he has to assume. Everyone goes with him. Yeah, he's convicted. He could be barred from running again. We wouldn't be having

this conversation, certainly in this time. Not only could be, would be. Yeah. Yeah. Let's talk about how much january 6 and and these criminal charges are playing a role in the campaign i mean you've seen biden at times try and try and talk about broader issues and and stay away from trump himself but at the same time really leaning into the idea of democracy being under threat he just gave another one of those big speeches trying to frame what

happened on January 6th and trying to frame Trumpism and the MAGA part of the Republican Party as just outside the norm. And that's an argument that worked pretty well in the midterms. It's an argument that worked pretty well when Joe Biden ran in 2020. I mean, even before that, there was a January 6th insurrection calling Trump a threat to democracy, saying that the country can't afford or be able to survive eight years of Donald Trump as opposed to four years. And I think that it's going to be the principal thing that Biden runs on again this time. I mean, he can't change his age. He can't change the fact that everybody asks why somebody who's 81 is going to be running for president. But what he knows he has at his back is the fact that most independents don't have very good views of Donald Trump, that a lot of people see him as a threat

to democracy. And he's going to bang that drum repeatedly over and over again. And, you know, Josh Shapiro, who's the governor of Pennsylvania, had said that he thinks that a lot of voters right now have brain fog when it comes to Trump because he's just not in the news as much as he was. But Democrats are going to spend millions upon millions of dollars. And January 6th is going to be a main key focus of what you're going to hear about Donald Trump's conduct and the sort of increasingly anti-democratic views that he's been spouting on the campaign trail. Iowa caucuses in a little more than a week. But Harry, let's talk about Tuesday. Let's talk about the oral arguments for this immunity question. We walk through kind of the arguments, but let's

talk about the timeline. Because remember, just a few weeks ago, Jack Smith had asked the Supreme Court to speed up the timeline to immediately take up this case. The Supreme Court declined to do that, had to go through the normal process. Now it's in front of the appeals court. How quickly do you think we could see a ruling? Very. So remember, the Supreme Court first started to walk down that expedited road and then denied it only after it was clear the D.C. Circuit was weighing in in warp speed for a court of appeals. So I think they're set up to hear the argument Tuesday and issue an opinion within a week or 10 days. That's, you know, based on their past conduct with Trump in mind. And then it goes right up to the court. A very important thing to look for is whether the court of appeals,

when it rules, and I think it will rule against Trump, imposes a stay that's sort of a short trigger, doesn't give him time to move for 30 days for the full D.C. circuit, 90 days to the Supreme Court, but actually puts him on a short leash, which they can do. That'll be significant. can do. That'll be significant. One other question that really gets to the legal track and the campaign track is yet another motion last week from Special Counsel Jack Smith trying to block Trump from making political arguments and referring to conspiracy theories during the federal January 6th trial. Why does Smith want to ask for that? Why is that in Smith's interest? Because they're irrelevant, but nevertheless something that a jury acting for improper reasons, remember, they're just there to assess the evidence that's been brought against him. It's something that could kind of turn a juror's mind and make them want to acquit Trump,

but it's really got nothing to do with the trial. So he's on very solid ground saying this stuff is irrelevant. And he's on also very solid ground thinking that Trump's going to try to sneak it in. So he wants in advance to say, let's get these lines straight so that when the words first start coming out of the lawyer's mouth, we can say, objection, we talked about this, and the court can say, sustained. And Domenico, that would really put a damper on Trump's attempts to just kind of campaign from the courtroom if that happened. muddy the waters. You know, he wants to be able to say, even if it's not for the jury pool in the courtroom, it's going to be for the jury pool of voters who he's trying to convince that, you know, there's some big conspiracy going on, political persecution. And a lot of Republicans do believe

this. And, you know, we've seen that in polling. There was this Washington Post, University of Maryland poll that we referenced earlier. And it's amazing, even in that, 25% of Americans said they probably or definitely trust that the FBI started January 6th. 44% of Trump voters think that that's true. I mean, that is amazing to me to think about the fact that that's something that he's been able to convince enough people on that they will be willing to go down these conspiracy rabbit holes with him. All right. So let's wrap things up this week. We are talking about the Iowa caucuses rapidly approaching. We are talking about this key federal appeals court hearing in the coming days. We are talking about this ballot access question, all of these things moving forward. Domenico, I'm going to start with you. What's a word or phrase that you would use to describe this moment right now? Well, I think that living in the beauty of your own reality is probably to loosely quote Charles Lamb, the English essayist, because, you know, I think that that's what we're seeing is this divergence in politics and in the legal sphere where we have these two realities and people believe what they want to believe. And I think that that's a very difficult place for a lot of us to be because as journalists, we want to be able to talk about the independent, verifiable facts.

And instead, what we're seeing increasingly with Trump on the campaign trail and on the witness stand is that he wants to promote a reality that maybe doesn't exist sometimes. Harry, how about you? How would you sum it up? that maybe doesn't exist sometimes. Harry, how about you? How would you sum it up? Singular. The braiding together of the legal issues with the political stakes, I think is literally unprecedented

in American history and certainly no more than a couple of times. We are in quite a moment. That's Harry Littman. Thanks again for joining us. Thanks for having me. And joined as always as well by Domenico Montanaro. Thanks, Domenico.

You got it. We'll be back next week with another episode of Trump's Trials. Thank you again to our supporters who hear the show sponsor free. If it's not you, it could be. Sign up at plus.npr.org or subscribe on the show page in Apple podcast. The show is produced by Tyler Bartlam and edited by Adam Rainey and Steve Drummond. Our technical director is Kwasi Lee. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripoti is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR. Thank you. whatever the market throws at you next. Learn more at Concur.com. History is intriguing,

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