--:-- [Theme music fades out]
--:-- Sean Rameswaram: Good evening. Jack Smith only spoke for two minutes and 45 seconds last night, but he said a lot.
--:-- Sean Rameswaram: Today, an indictment was unsealed, charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding.
--:-- Sean Rameswaram: The indictment was issued by a grand jury of citizens here in the District of Columbia, and it sets forth the crimes charged in detail.
--:-- Sean Rameswaram: I encourage everyone to read it in full. Today Explained also encourages you to read it, but we're going to supplement your reading with an episode about the case and how it might land with the American people.
--:-- Sean Rameswaram: In the meantime, I must emphasize that the indictment is only an allegation and that the defendant must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
--:-- Sean Rameswaram: Thank you.
--:-- Sean Rameswaram: Thank you.
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--:-- Sean Rameswaram: Alan Rosenstein hasn't yet seen Barbie, but he knows a thing or two about the law.
--:-- Sean Rameswaram: For starters, he's a law professor at the University of Minnesota.
--:-- Sean Rameswaram: He's also a senior editor at Lawfare.
--:-- Sean Rameswaram: We reached out to ask him about the former president's latest unprecedented.
--:-- Alan Rosenstein: I think this is the most serious indictment.
--:-- Alan Rosenstein: First, it's the most serious in terms of the specific charges that are at issue.
--:-- Alan Rosenstein: And also, it's the most serious, and I think this is the most important part, in that it's the first indictment that actually gets at what I think most observers would agree is Trump's most heinous conduct, which is trying to overthrow the 2020 election.
--:-- Alan Rosenstein: And this is part of a much larger prosecutorial effort within the Department of Justice.
--:-- Alan Rosenstein: It did not start with President Trump.
--:-- Alan Rosenstein: How did it start?
--:-- Alan Rosenstein: Well, it started when the incoming Biden administration was faced with hundreds, if not thousands of individuals who violently and illegally entered the Capitol to disrupt the certification of the Electoral College vote on January 6th, 2021.
--:-- Alan Rosenstein: This has since become the, by far, largest criminal investigation in U.S. history.
--:-- Alan Rosenstein: Over a thousand people have been charged in some way in January 6th.
--:-- Alan Rosenstein: Hundreds have been convicted, many to house arrest, but plenty to jail time.
--:-- Alan Rosenstein: Likely another several hundred will have to go through the system.
--:-- Alan Rosenstein: And so far, the investigation has largely focused on the folks who entered the Capitol and then with some notable cases with some of the individuals who planned the attack.
--:-- Alan Rosenstein: So the vast majority of these individuals have been charged at least with things like disrupting an official proceeding of Congress, which is to say the Electoral College certification, as well as unauthorized entry into the Capitol, which is, for obvious reasons, a protected space.
--:-- Alan Rosenstein: Bring out Pence! Bring out Pence! Bring out Pence! Bring out Pence!
--:-- Alan Rosenstein: In addition, there are a smaller subset who have been identified as having committed acts of violence against the Capitol Police or who committed specific acts of defacement against federal property.
--:-- Alan Rosenstein: We are still taking metal-sherping objects, missiles to include vials and rocks, and hand-thrown chemical-grade fireworks.
--:-- Alan Rosenstein: Those individuals have been charged with those additional crimes.
--:-- Alan Rosenstein: And then most notably, there have been a small group, largely centered around the Oath Keepers and the Proud Boys, people like Stuart Rhodes, for example, who have been charged with the most serious offenses we've seen yet to date, which is seditious conspiracy.
--:-- Alan Rosenstein: And they've been charged that because of the planning that they engaged in.
--:-- Alan Rosenstein: The founder of the Oath Keepers Militia Group is headed to prison for more than 18 years.
--:-- Alan Rosenstein: That is the most of any January 6th defendant so far.
--:-- Alan Rosenstein: And what's the batting average the Department of Justice has thus far?
--:-- Alan Rosenstein: It's extremely high.
--:-- Alan Rosenstein: The department has largely prevailed on almost all of its cases on almost all of the charges it's it's had to fight some legal fights on applying some of the statutes to the facts of january 6 but it's won those on appeal in the dc circuit at the same time it hasn't won all of the charges and all of its cases including in the most serious ones so for example in the recent prosecutions for seditious conspiracy, while the government has taken down the major defendants, it lost on trying to get some of the peripheral defendants.
--:-- Alan Rosenstein: In addition, and maybe most notably, the government has been much less successful in getting the sentences that it wanted.
--:-- Alan Rosenstein: So after someone is convicted, the government will propose what it thinks the proper sentence is, but the judge ultimately decides.
--:-- Alan Rosenstein: And in most cases, or in at least many cases, judges, both Republican and Democratic appointee have actually gone below what the government has recommended
--:-- Sean Rameswaram: What are the charges that Jack Smith and the Department of Justice are bringing against the former president in this case?
--:-- Alan Rosenstein: So you have a charge under one statute, 18 U.S.C. 1512, and this is around corruptly obstructing an official proceeding.
--:-- Alan Rosenstein: We're going to walk down to the Capitol and we're going to cheer on our brave senators and congressmen and women.
--:-- Alan Rosenstein: And we're probably not going to be cheering so much for some of them because you'll never take back our country with weakness.
--:-- Alan Rosenstein: You have to show strength and you have to be strong.
--:-- Alan Rosenstein: The official proceeding here is the Congressional Electoral College certification, as well as conspiracy to do so, because the indictment goes into a lot of detail about the many, many co-conspirators that the indictment does not name, but it's pretty clear who we're talking about, people like Giuliani and Eastman.
--:-- Alan Rosenstein: So that's one set of charges.
--:-- Alan Rosenstein: Another charge is brought under statute 18 U.S.C. 371, which is the conspiracy to commit fraud against the United States.
--:-- Alan Rosenstein: I hope that our great vice president comes through for us.
--:-- Alan Rosenstein: He's a great guy.
--:-- Alan Rosenstein: Of course, if he doesn't come through, I won't like him quite as much.
--:-- Alan Rosenstein: And then the last statute, and I think this is in a sense the most interesting and kind of the most important, not necessarily in terms of prosecutorial strategy, but symbolically, is the statute 18 U.S.C. 241.
--:-- Alan Rosenstein: The reason this is so important is the history of it.
--:-- Alan Rosenstein: This statute was originally enacted as part of the Enforcement Act of 1870 during Reconstruction after the Civil War to allow for the federal prosecution of the Ku Klux Klan and others who were trying to prevent black Americans at the time from exercising their civil rights through intimidation and violence.
--:-- Alan Rosenstein: Since that time, since the 1870s, this statute has actually been used much more broadly than sort of the original impetus for it.
--:-- Alan Rosenstein: It's frequently been used to prosecute individuals who have tried to interfere with elections, who have tried to stuff ballot boxes, to try to intimidate people from voting.
--:-- Alan Rosenstein: Again on the theory that one of our rights as Americans is to vote, and in particular to have our vote counted fairly.
--:-- Alan Rosenstein: And given the allegations that Trump was trying to get states to overturn their state electors based on lies about the election, that he was trying to pressure Mike Pence, the vice president, to throw out electoral votes during the certification, that's where that charge is being brought under.
--:-- Sean Rameswaram: In response to these charges, the former president of the United States said, why didn't they do this two and a half years ago? Why did they wait so long?
--:-- Alan Rosenstein: Well, it took so long for a couple of reasons.
--:-- Alan Rosenstein: First, this was part of the largest investigation in U.S. history.
--:-- Alan Rosenstein: And so it just takes time to do this correctly.
--:-- Alan Rosenstein: It also involved a huge amount of investigative work.
--:-- Alan Rosenstein: It's a little ironic for someone like Trump, who has been complaining that he's getting unfair justice and the Department of Justice is being sloppy, to then turn around and complain that they didn't bring what is the most sensitive and high-profile criminal prosecution in American history.
--:-- Alan Rosenstein: They didn't bring it three weeks after it happened.
--:-- Alan Rosenstein: Investigations take a lot of time, and in particular this investigation, which requires interviewing and getting testimony from Trump's closest associates also takes a lot of time.
--:-- Alan Rosenstein: Another reason this took two and a half years is because when it became clear that President Biden was going to run for re-election and also that Trump was a candidate for office, the Justice Department did what it should have done, which is to appoint a special counsel.
--:-- Alan Rosenstein: And of course, that delayed it further.
--:-- Alan Rosenstein: Do you think it would have landed better with the American people closer to the insurrection and not, as we approach in more than a year, mind you, another presidential election?
--:-- Alan Rosenstein: Maybe.
--:-- Alan Rosenstein: There did seem to be a very brief moment right after the insurrection when there seemed to be more general public consensus around just how bad this was and how sort of awful Trump's conduct was.
--:-- Alan Rosenstein: I will say, if I recall correctly, that consensus did not seem to last for more than a few months.
--:-- Alan Rosenstein: And there was just no way that they were going to be able to bring this case that quickly.
--:-- Alan Rosenstein: So to be honest, I'm just skeptical that there's much the Department of Justice can do for the, call it 30% of the American public that is hardcore MAGA, hardcore Trump supporters.
--:-- Alan Rosenstein: And I think, you know, back to an earlier point about the Department of Justice treating this like any other criminal case.
--:-- Alan Rosenstein: There's something to be said for the Department of Justice not trying to game out the politics of this, because once you go down that road, you start making choices.
--:-- Alan Rosenstein: Those choices themselves get scrutinized.
--:-- Alan Rosenstein: And the best thing you can do, I think, is just to treat the case like any case, bring the case when it's ready.
--:-- Sean Rameswaram: Alan Rosenstein, University of Minnesota law, we got to take a Today Explained time out then we're going to explore how this big historic unprecedented indictment is landing with the American people two and a half years after January 6th.
--:-- Sean Rameswaram: Que you
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--:-- Sean Rameswaram: What about what happened on January 6th? What do you think what happened there?
--:-- Alan Rosenstein: I don't really know what happened on January 6th.
--:-- Alan Rosenstein: January 6th, the... The election day?
--:-- Alan Rosenstein: No, the election day was back in November.
--:-- Alan Rosenstein: Do you... I don't even know what... Do you know about January 6th?
--:-- Alan Rosenstein: No.
--:-- Alan Rosenstein: So when I say January 6th, that means... Nothing.
--:-- Alan Rosenstein: I don't know.
--:-- Sean Rameswaram: That's just a day to you?
--:-- Alan Rosenstein: Yeah.
--:-- Sean Rameswaram: Today Explained is back.
--:-- Sean Rameswaram: We are here with Christian Paz, who is a senior politics reporter at Vox.com.
--:-- Christian Paz: Hey, Sean, I think it should absolutely be a big deal objectively, right?
--:-- Christian Paz: This is a federal grand jury.
--:-- Christian Paz: It's looked at evidence presented by federal prosecutors, at least enough evidence to show them that there's reason to believe that the former president of the U.S. attempted to overthrow democracy, overturn a presidential election.
--:-- Christian Paz: But I think we're going to see a predictable pattern.
--:-- Christian Paz: Political news media goes into wall-to-wall coverage mode.
--:-- Sean Rameswaram: Welcome back.
--:-- Sean Rameswaram: We've got major breaking news tonight to discuss Donald Trump now facing his third criminal indictment, this one accusing him of conspiring to defraud the country while he was president of the United States.
--:-- Sean Rameswaram: Democrats condemn Trump.
--:-- Sean Rameswaram: First of all, let me say, none of us take any real pleasure in where we are at this point.
--:-- Sean Rameswaram: But I think we all have to understand that as a nation of laws, even a president or former president is not above the law.
--:-- Sean Rameswaram: Congressional Republicans rushed to defend him.
--:-- Sean Rameswaram: This happens in Pakistan.
--:-- Sean Rameswaram: This happens in places around the world, in Africa where I've served.
--:-- Sean Rameswaram: I never thought I'd see it happen here in the United States.
--:-- Sean Rameswaram: And I just can't underscore how damaging it is.
--:-- Sean Rameswaram: And then Trump's rivals for the Republican nomination contort themselves into trying to give the most ambiguous, nonspecific defenses of him.
--:-- Sean Rameswaram: The allegations in this indictment fall flat.
--:-- Sean Rameswaram: It is wrong and incorrect and inaccurate to place blame for what happened on January 6th at the feet of Donald Trump.
--:-- Sean Rameswaram: And then a few days later, everyone just seems to move on.
--:-- Sean Rameswaram: We go back to talking about aliens or the gerontocracy that leads the country or Barbenheimer.
--:-- Sean Rameswaram: And that's, I think, when we kind of get to this specific third indictment, there's an intersection of two trends that I've noticed, which are that it doesn't seem like the indictments are really changing drastically public opinion.
--:-- Sean Rameswaram: And secondly, the memory of January 6th is changing, too.
--:-- Sean Rameswaram: And I think that's where I fear we're seeing two kinds of apathy.
--:-- Sean Rameswaram: Some of the polling that I've looked at shows two kind of conflicting opinions, which are that people think that it's important to have these investigations happen and also that they might be politically motivated and that somehow in the mind of the American people, that's not contradictory.
--:-- Sean Rameswaram: I think it's interesting when you look at specific kinds of Americans, right?
--:-- Sean Rameswaram: You ask a Democrat about January 6th.
--:-- Sean Rameswaram: You ask a Democrat about these investigations into Donald Trump.
--:-- Sean Rameswaram: And they're obviously more likely to support investigations, more likely to disapprove of January 6th specifically.
--:-- Sean Rameswaram: And you ask a Republican, and obviously you're going to get almost a mirror image of that.
--:-- Sean Rameswaram: There was an interesting University of Massachusetts Amherst poll that was looking at whether Americans want to move on from that day's event or whether they want to learn more about what happened.
--:-- Sean Rameswaram: And obviously, in the immediate aftermath of January 6th, in that month in 2021, the number of Americans who wanted to learn more about what happened was pretty high.
--:-- Sean Rameswaram: Since then, that number has been gradually decreasing till we get to the 50% figure.
--:-- Sean Rameswaram: While the number of people who want to move on has been increasing from 44% in 2021 to now 50%.
--:-- Sean Rameswaram: And so that's a pretty significant shift over the last two years.
--:-- Sean Rameswaram: I mean, it's human nature to want to move on, but do we have polling that speaks to how Americans actually view the events of January 6th and how that might be changing over time?
--:-- Sean Rameswaram: That Amherst poll that I was referring to also tracked over the course of the last two years two and a half years the kinds of words that people would use to describe what happened on January 6th
--:-- Sean Rameswaram: The one that is still used the most is riot 58 of respondents in this tracking poll in April of 2021 called it that.
--:-- Sean Rameswaram: In December of 2021, on the verge of 2022, that was 55%.
--:-- Sean Rameswaram: So it's dropped a little bit.
--:-- Sean Rameswaram: But the thing that's interesting is the number of folks who would describe this also as a protest, just a simple protest.
--:-- Sean Rameswaram: That's increased by six points from 43% in 2021 to now nearly half of people who would describe it as a protest.
--:-- Sean Rameswaram: That's interesting because, you know, a war is a war when it happens and typically it continues to be a war.
--:-- Sean Rameswaram: What is it about what happened on January 6th? What is it about an insurrection that can change in the public's eye over time?
--:-- Sean Rameswaram: Part of it is definitely that time goes on.
--:-- Sean Rameswaram: People forget the images.
--:-- Sean Rameswaram: People forget the way that they felt while they were watching this.
--:-- Sean Rameswaram: Another side is that Republicans and the former president have been on a pretty active campaign to try to reclaim that legacy and try to make you think that it's something that it wasn't.
--:-- Sean Rameswaram: A lot of Republican candidates, whether for Congress or for statewide office, made that a pretty big deal in some of their campaigns last cycle.
--:-- Sean Rameswaram: He betrayed you.
--:-- Sean Rameswaram: David McKinley joined Nancy Pelosi voting for the January 6th anti-Trump witch hunt to attack our president and our values.
--:-- Sean Rameswaram: Obviously, it didn't end up helping them a ton.
--:-- Sean Rameswaram: Whether it hurt them, that's a different question that pollsters haven't really been able to answer.
--:-- Sean Rameswaram: But there is a sense of fatigue that settles in there, too.
--:-- Sean Rameswaram: Time helps to change that memory.
--:-- Sean Rameswaram: The fact that there are also just other things that Americans care about.
--:-- Sean Rameswaram: Inflation was the big story of 2022, as were abortion rights.
--:-- Sean Rameswaram: And suddenly, those kitchen table issues come back into play and end up just, you know, slowly chipping away at whatever, you know, strong sentiment you might have had if you were, you know, an average American, not a very partisan Republican or Democrat.
--:-- Sean Rameswaram: Because what we do see very clearly from this polling is the most partisan members of parties, you know, are pretty loyal to the description that their party leaders have of what that event was.
--:-- Sean Rameswaram: The larger issue here beyond the insurrection, beyond politics, beyond who becomes our next president feels like it's that we as Americans can't really agree on the truth.
--:-- Sean Rameswaram: And you write about that in your piece.
--:-- Sean Rameswaram: Right.
--:-- Sean Rameswaram: I refer to this as another example of our post-truth politics.
--:-- Sean Rameswaram: You know, post-truth politics being a fancy term to just suggest that in a democracy, in a society that works, a healthy country, there is fact and that there is fiction, that there is truth and that there is falsity.
--:-- Sean Rameswaram: And that those real conditions should affect the way that we think about the legal system, the way that we think about politicians, the way we think about our institutions in general.
--:-- Sean Rameswaram: And definitely has felt that in the Trump era and since the Trump presidency, things kind of matter a little bit less in the political context.
--:-- Sean Rameswaram: One quote that I found particularly insightful in explaining a little bit of this came from a member of Trump's party itself, Wyoming Senator Cynthia Lemus, gave a really interesting observation to a Hill reporter also in the week after Trump reported receiving a target letter from the special counsel.
--:-- Sean Rameswaram: And the quote is, I think it shows that politicians lie and they know that they're lying.
--:-- Sean Rameswaram: The liar knows that people know he's lying and the people they're being lied to know they're being lied to.
--:-- Sean Rameswaram: And in a way, it really does sum up this post-truth politics, this particular moment in our politics right now, where Trump has never made any kind of illusion that he would always tell people the truth.
--:-- Sean Rameswaram: And folks who support him and who truly believe him don't care if maybe all the evidence that is out there shows something else, proves something that the president has said wrong, or shows that their own intuition or their own idea of the president being innocent might be wrong.
--:-- Sean Rameswaram: Doesn't really matter.
--:-- Sean Rameswaram: They kind of bought into this lie and bought into his message and bought into his persona and will continue to support him.
--:-- Sean Rameswaram: So how do you prosecute a former president for an insurrection that he led in a post-truth era?
--:-- Sean Rameswaram: All of this that I'm talking about in terms of of apathy, people sentiment, wanting to move on, not really caring what is fact and what is fiction, is all operating in the political sphere, whereas the justice system continues to do its work.
--:-- Sean Rameswaram: The institution continues to operate.
--:-- Sean Rameswaram: Dates will be set.
--:-- Sean Rameswaram: You know, lawyers will be meeting.
--:-- Sean Rameswaram: Defenses will be made.
--:-- Sean Rameswaram: Prosecutors will make their case and will march toward, inevitably, a full-on trial of the former president.
--:-- Sean Rameswaram: And throughout it all, the institutions are working independently of public opinion, independently of whether I wish, or you wish, or advocates for democracy wish that the American people were up in arms about this.
--:-- Sean Rameswaram: The institutions will continue to operate.
--:-- Sean Rameswaram: Christian Paz, his work is located at Vox.com.
--:-- Sean Rameswaram: Our program today was produced by Siona Petros.
--:-- Sean Rameswaram: We had help from Hadi Mawagdi, Amanda Llewellyn, Laura Bullard, Matthew Collette, Miranda Kennedy, Amina Alsadi, Michael Rayfield, and me, I'm Sean Ramos for him, and this is Today Explained.
--:-- Sean Rameswaram: Thank you.
--:-- Sean Rameswaram: Thank you.
