I’m Ezra Klein. This is “The Ezra Klein Show.”
So before we begin today, we are looking for a researcher to join the show. New York is preferred for this job, but we’re open to remote work. And we’re going to be closing the listing in about a week. So now is it time to apply. The listing can be found at nytco.com/careers, and we’ll put a link to that in the description for this episode. And I do apologize. I know it’s frustrating, but you do have to apply through the NYT jobs website. You cannot just send it all to our email.
But for today, I don’t know if you’re watching, but the hearings by the Congressional Select Committee charged with investigating January 6 and all that led to it, they’re ongoing. And I think on the merits, they’ve been pretty remarkable. The breadth of their interviews, the clarity of the presentation, and the simple work they’ve done — I don’t think it’s been simple, but it’s been clear — constructing and sequencing a record here. Just creating that record is invaluable. And there is some evidence on the margin that the public’s view is changing. There was an ABC News Ipsos survey released on Sunday and it found that 58 percent — 58 percent of respondents believe Trump should be charged with a crime for his role in the January 6 attack. That is up from 52 percent earlier this year. But in terms of real consequences for Trump, that’s still to be seen and looks a lot murkier.
And that gets to the deeper questions of these hearings. This is really about fundamental questions of our political and legal system. Is the president actually above the law? What happens when the norms that truly govern American politics break down and we’re left with what the rules really say? How have we punished and pardoned those who have threatened the system before and what can we learn from that? And I think maybe most importantly, what would happen if Attorney General Merrick Garland actually decided to prosecute Donald Trump? What would happen if any sitting attorney general decided to prosecute the previous president from the other party? What does that do to American politics?
So I wanted to talk to somebody who could put these hearings in context, who has a bit more of a historical view. And that made guest selection easy. My colleague Jamelle Bouie is a columnist at Times Opinion, and I think he’s just one of the best writers going today at connecting the present moment with America’s still living past. He also, I should, say co-hosts a very fun podcast, “Unclear and Present Danger,” about ‘90s post-cold war thrillers. I do want to note, we recorded this conversation on Wednesday, June 22, so that was before the Thursday hearing. As always, my email firstname.lastname@example.org.
Jamelle Bouie, welcome to the show.
Thank you for having me, as a guest this time.
I know, it’s —
I haven’t done this yet.
— the other side of the mic.
So I want to begin with a frame you offered in a past column that I’ve been thinking about a bit. So we often hear about January 6 as an insurrection. It’s how I talk about it typically. But you say that it’s best thought of as, quote, “a kind of revolution, or at least the very beginning of one.” Tell me about that.
So one way I’ve been looking at January 6 is from the perspective of what in the political system enables this, what in the political systems allows something like this to happen. And one of the things I have identified, and lots of people have identified, is simply that the odd mechanism we have for electing a president has all of these stop points and points at which you could interrupt the process. And historically, the process hasn’t really been interrupted. It’s all been kind of a formality. The moment of counting the electoral votes, the moment of the state certifying electors — all this stuff has been mere formality for most of American history, at least the large part of American history during which people have been voting for the president. And it was — I think people expected it to be a formality again going into this.
But what happened between November election and January 6 was that Trump and his allies and his supporters decided to contest these parts of the process that were understood to be formalities. And although at the beginning of all of this — November — there was a lot of talk that, well, the president has the right to sue in court and have his day in court and contest these things. I think what people miss was that the mere decision to contest them is a sea change from the past. It is making these moments, these procedures grounds for political contestation. And it is introducing the idea that if you were to somehow win the political contestation, then you could subvert or overturn the results of the election. And that to me is a kind of revolutionary idea. It fundamentally changes what we think presidential elections are, who we think counts in them, and what purpose they serve in a representative democracy. It completely turns around this ritual we have, making it less of an affirmation of Americans’ democratic will and more of a game of elite machinations and legal chicanery.
I want to zoom in on the verb you used there, which is changes. Which you’re talking about all this in the present tense. And it’s there in your point about revolution, the very beginning of one. There’s a tendency, an allure to seeing what the Select Committee is doing, to seeing that period of time from the November election to sort of the immediate post-January 6 certification, as over, and that the period we’re in now is the after-action report. We’re trying to recover the black box on the 2020 airplane crash. But that’s not the way you talk about it. You’re talking about this as something ongoing, something where the damage of it is still seeping through the system, something where the story is by no means over. Tell me why.
When you decide to do something like contest the counting of the electoral votes and turn it into a site of live political struggle, you can’t just put that back in the box, right? People now know that that’s a thing you can do. And once people know that that’s a thing you can do, it becomes a live possibility, even if in the next election and the election after that, you know, elites decide they’re going to just leave that aside. They’re going to put that tool back in the box and pretend like they never saw it. But we all know that it happened. And I think it’s important to understand politics and political procedures and Democratic procedures not as rules on a piece of paper that you follow, right, but a set of agreements among everyone, a set of agreements about what actually happens after X, Y and Z.
And if one side violates those agreements and there’s no real consequences for that violation, there’s no attempt to change the rules or write down on a piece of paper this thing you can no longer do and we’re all going to enforce that with law, then effectively the agreement has changed and now the realm of what you can do has expanded some. And I don’t think people are taking that quite seriously enough. I mean, I don’t think people opposed to it are taking that quite seriously enough. I think the people who are allies of the former president are actually taking it very seriously.
Yeah, that’s an important point. But this gets to something very deep that to me has been a consistent theme of the past 20 years in American politics, which is people tend to think the American political system works on rules, clearly defined rules governing behavior. And to a much larger extent than we learn in high school civics class, it works on norms. As you put it, agreements between the players. And when those agreements begin breaking down — and one of my theories about the period of polarization we’re in is that it’s a period of agreements breaking down. You can’t run a system this polarized on norms. It turns out that if you try to run American politics based on the actual rules that we have set down, you find that we have a very bad system to run by rules, that those rules are unusually susceptible to bad actors. Does that seem right to you?
I think that’s right. I think that — to borrow a phrase I’ve grown — or to use a phrase I’ve grown pretty fond of recently — I think that Americans understand their democracy as running along the same boundaries as the Constitution. American democracy and the Constitution are synonymous to a lot of people. But I think it’s the wrong way to think of it. I think American democracy is a set of ideals and aspirations and instincts that are much larger than what the Constitution allows. And the Constitution is an attempt to limit what the possibilities of American democracy might be.
And if you just read the Constitution in those terms and think about the historical context of the Constitution as well, which is kind of elite panic over mass political participation, elite panic over a leveling spirit that had been unleashed by the Revolution and its successful conclusion, I think what you see is a Constitution that for as much as it tries to facilitate self-government also puts a huge number of limits and really attempts to clamp down on the Democratic spirit and coordinate off somewhat. And so you have institutions — and you’ve written about this, I’ve written about this — like the Senate. You have the Electoral College as written, which isn’t what we tend to think of it was. But as written, it’s kind of a temporary Congress where elites get together and choose the president.
And if they can’t figure it out, it goes to the House of Representatives who then choose the president. And of course, the House, although elected by the people in this document is elected by a very narrow segment of people. It’s not really a representative process in any meaningful sense, certainly not in any sense that we would recognize. And a thing that I think we are witnessing and experiencing is that, as you say, that the rules set out in the Constitution allow for a political system that is much less Democratic than we Americans envision, think of, want to have. They allow for a political system that in some ways can facilitate authoritarianism quite easily. That’s kind of what we’re witnessing. Some states — some state legislators have floated the possibility of just assigning their electoral votes to Trump if he runs again. And that’s very much — the rule book says they can do it. It violates our instincts. It violates what we think this process is supposed to be. But there’s nothing in the rulebook that says they can’t do it.
I want to try a thought on you here, building on what you said there, which is I think if you read through the Constitution, read through the way the rules of, say, the Senate, the Electoral College, et cetera, is set up, what you’ll see is a system, for all the reasons you described, that built in a lot of discretion for elites. It built in a role at many, many, many points in the process for elites to say, I don’t like how this is going.
And now this is where we get into the problems of the word elites, because both, say, Merrick Garland and Steve Bannon are both elites by any definition of the term, but they’re very different kinds. So what seems to me to have happen in an almost inversion of founder intent is that that discretion is not really used by the elites of the establishment you might call them — the kind of people you might have had at the Constitutional Convention — because, by nature, those elites are pro-system.
They’re very bought into the system. They’re the ones who came up with these agreements, who have been carrying them out for a long time, who have been socialized into them. They don’t tend to be the ones to break the agreements. That discretion is being used, deployed, worked with by the populace, by the people trying to challenge the folks who have been traditionally running the system.
In theory, the elites would have been used at the Electoral College to keep somebody like Donald Trump out or in other parts in the system to try to limit his damage. But instead, a lot of the actual — the elites are the ones defending the norms as good enough, and a lot of the actual discretion and prying open of the system’s internal logic is being done by these populist challengers.
I think that’s right. I think that the — and this gets back to this idea of an American democracy and the Constitution really shouldn’t be considered one and the same thing — which is that in the year since 1788, which is when the Constitution was ratified — in the 200 and almost 50 years since then, we have moved towards basically trying to shoehorn something like a democratic system into the Constitution.
And the establishment elites — you might describe them as — have largely bought into that project. They think that is the way it’s supposed to go. They refer to the country as a democracy, recognizing that part of the story of the country is this attempt to take a system that on paper really isn’t that democratic and turning it into something democratic. And it should be said that this process begins almost immediately, right?
After the first decade of what you might call the founders’ Constitution, you have the beginnings of the development of mass political parties. You have the beginnings of the expansion of suffrage from landowning white men to all white men. So that by the age of Jackson, there’s universal white male suffrage. It’s in the 1810s or so that Americans begin referring to their country as a democracy.
And of course, Andrew Jackson’s political party becomes known as — I mean, we know it as the Democratic Party. But how people talked about it is they called it the Democracy. So this attempt to make the country more democratic happens very quickly. The logic of the Revolution pointed toward it even as the Constitution was meant to restrict that somewhat. And the logic of the Revolution won out in that battle.
And so what’s interesting about, you know, today’s contemporary populist or reactionaries, or whatever you want to call them, is that they are often explicitly anti-democracy. They see democracy as in part part of the problem or at least democracy that includes Americans they have deemed outside the realm of the people.
And so in their anti-democratic attempt to make sure only the right people have a say in the process, they’ve looked to the Constitution and the literal words on the paper, divorced from the larger democratic political culture that has developed in the United States, and have tried to use the discretion and the loopholes and the literal intent of some of this to undermine American democracy. I’m sure you’ve heard the phrase “We’re a republic, not a democracy.”
I was going to —
— say it next simply to annoy you.
Yeah. It drives me crazy. But this is —
I mean, I think — and for listeners, it drives me crazy because if you actually break down how those words were used in the founding period and how they’ve been used, they’re kind of synonymous. And the big difference is that republic has a Latin origin and democracy has a Greek one, and that’s kind of it. They both mean “rule by the people.”
But as it’s used by Trumpist political figures, as it’s used by Lauren Boebert, who said it on Twitter once, and all those people, what I think it literally means for them is that the United States is not a country where the people actually decide. The United States of the country were a segment of the people who are true patriots get to decide. And in service of that, they’re looking to — or they’re using understandings of the Constitution that subvert, again, the democratic culture that’s grown up in the United States.
Right. The tell on this to me always is go back to 2016. Imagine that at the party convention, Republicans use some procedural maneuver to stop Donald Trump from being nominated, or even more to the point, at the Electoral College, the assemblage of elites decide, nah, just not this guy.
The people around the Trump movement who like to say we’re a republic, not a democracy, would not be saying, well, I mean, not the way I’d hoped it would play out, but obviously we’re a republic, not a democracy. And the point of a republic is you have that kind of check on the small-d democratic impulse. Not only do people misunderstand historically what was being talked about by Republican democracy, but they don’t believe it now either.
You’re absolutely right. If somehow the Electoral College — if all those electorates had just decided we’re going to ignore the directions by state law, which say we cannot act as unfaithful electors, and give the election to Hillary Clinton, there would be pandemonium. Trump’s allies would lose their minds. And might even rightfully so, because under the rules as played, that’s not how it’s supposed to work.
I mean, the Electoral College is there, but we all understand that if you win the electors, you win the electors. And if you happen to win the electors without winning the popular vote, you get to win, even if that is a, I think, ridiculous outcome that a system that produced that outcome for this kind of office doesn’t really work. It is the agreed upon rules at the beginning of the process.
And so they would have had a point. But the fact that they’re not consistent about this is, as you say, it’s the tell. It’s really a power play looking for justifications. But I do think it speaks to a deeper disdain for democracy and specifically disdain for the idea that all Americans, at least in some sense, have an equal say on the governance of the country.
So what a wonderful bridge to the hearings themselves, particularly that point about if you win the votes, you win the electors. We talk about these hearings as the January 6 hearings. But as I’ve watched them and as I understand the case they’re laying out, they are really, importantly in my mind, trying to say this is not about January 6.
That there was a coherent, ongoing multi-week or multi-month plan in which Donald Trump was heavily personally involved, in which an orbit of people around him were coming up with theories, and approaches, and strategies, and plans of attack and applying pressure to subvert the election before there was ever an attack on the Capitol. The point of the hearings, as I’ve understood them, is to try to lay out the nature of the plot, the scheme that brought us to January 6.
So can you talk a bit about what that scheme was? What it was the Trumpist people who were trying to subvert the election thought they could do and attempted to do?
So my understanding of the scheme is it has two parts. The first part — you might say, the immediate pre – and postelection part — was to do as much as they could to delay the counting of mail-in and absentee ballots. The idea being was that Trump’s voters would disproportionately come out and vote on election day, meaning their votes would be counted first.
And so when polls closed, when results started to come in, it would appear as if Trump had won. And if you could stop — if you could delay counting, if you could stop counting early enough, I think in his mind and the mind of his allies, you could say, well, I won. And then once the other votes begin to come in, you then begin to contest that and say, well, those votes don’t count. They were illegally cast. They were cast under circumstances where election officials didn’t follow the letter of state law.
There’s this whole kind of ridiculous theory of the Constitution, and specifically the election clauses in the Constitution called the independent state legislature theory, which holds that state legislatures have plenary — meaning, kind of unlimited — power to do whatever they please with regards to elections in their states. And under this theory, if, say, a governor, or a secretary of state, or some other official changes the rules to accommodate a situation, such as a pandemic, without explicit approval from the state legislature, this is null and void and illegitimate.
It’s all very silly, none the least because all state actors derive their power from state constitutions. And so state legislatures don’t somehow pre-exist state constitutions. It’s a very — it logically makes no sense. And so under all of this, this is how they would challenge things. And then they could maybe shut down the voting and Trump could claim victory. This didn’t work.
And so the next part of it — the post-election approach — was to challenge as many ballots as they could in the swing states, try to get them thrown out, and try to keep states from appointing electors by the time the deadline hit in December. This was all those lawsuits.
When that didn’t work, the plan became — basically, this is where things go from being kind of working within the legal system, although it’s all breaking all sorts of norms, to just starting to break the law. It is, can we create fake sets of Trump electors and find some pretext to have those slates of Trump electors sent to Congress in addition to the legitimate slate of electors?
And then once they’re sent to Congress, we’ll use the counting process and we’ll use the Byzantine procedure set out in the Electoral Vote Count Act — Electoral Count Act. And we’ll use the ambiguity in that law, which isn’t really written very well, and the ambiguity of the vice president’s role in the counting of electoral votes to throw out votes in states that Biden won that Trump needs. And then have these substitute electors come in and then Trump can claim victory.
It’s just a genuinely weird set of ideas. And as I understand, there’s also another theory of how you might have done it. So to play out that last bit a little differently, you could have — in a set of the key swing states that they feared Trump was going to lose and that he did lose, you could have this alternate slate of electoral plan going forward. So let’s call it Michigan, and Arizona, and Pennsylvania, and Wisconsin, and so on.
Republicans in those states put forward an alternate slate of electors. They say — or their secretary of state says in Georgia, or whatever it might be, we don’t trust the vote. We think there are real irregularities here. We think something has gone wrong. And what Pence does — Vice President Pence — at that point is say, well, in a bunch of these key states, there is simply too much uncertainty for me to certify the vote. I simply cannot certify that we know what happened in Arizona.
And having knocked out these states, because they cannot be certified, if you do it in the right way and pick the right states, Trump ends up with a majority of the votes because he’s got Florida. But you know, Joe Biden doesn’t have Michigan and Pennsylvania, or whatever it might be.
The other possibility, which is something that I don’t think people actually understand is the thing that can happen, which is you toss in enough votes, that there’s just a tie. And ties go to the House. And the House doesn’t vote by member. It votes by delegation. And because Republicans control 26 delegations, then Trump becomes president.
And so there are all these ways this plays out, it goes to the Supreme Court, et cetera. But the thing I want to note about this is what the committee has done very effectively, in my view, is shown, one, how personally involved Donald Trump was. I mean, we knew a lot of this.
We knew he was calling individual Republicans in individual states trying to get them to go along with this plan. But not just how involved Trump was, but people around him — William Barr, et cetera — are telling him, you can’t do this. It doesn’t make any sense. It doesn’t work. It’s not legal. And he’s pushing forward on it anyway.
And something that has been on my mind in the hearings has been I think that January 6, in a weird way, has let Trump off easy, because it exists in the minds of the public as, sure, Trump’s fault, but it’s not like he was literally there in the mob. It’s like the mob got out of control. He probably didn’t mean for that exactly to happen.
And it has overshadowed all this other work he put into subverting the election, that, of course, led to January 6. It created both the sense of fury and hope that led those people to rush the capital. But it’s been actually, in certain ways, hard to get the attention off of the unbelievably compelling footage of the Capital being broken into and back onto Donald Trump night after night working the phones to try to intimidate, or persuade, or cajole officials in relevant states to go along with this scheme. And like, that is the core sin at the heart of all of this.
I’ve tried to think a lot about why, not just here, but across many different Trump scandals, it’s been so difficult to get attention paid to him, specifically in his actions and to get people to treat him as the prime mover. Some of it, I think, is just it largely happened in full view.
Trump didn’t ever really try to hide any of this. Going back to 2016, he said, if I lose, I’m going to challenge the election. I may not accept the results of the election. It’s sort of a known fact about the guy that he just doesn’t accept the idea that he can lose something. And during the months before January 6, most of November and December, it was pretty open that they were trying to do something.
And so I think the extent to which so much of this wasn’t hidden, I think people take in scandal and take in malfeasance of this sort using a heuristic. And a heuristic basically is if it seems like the person is trying to hide something, then it must be bad. And if it doesn’t seem — if Trump isn’t trying to hide any of this, then it just doesn’t seem that bad. I think this is the thing that afflicts how the media covers these things as well. That it’s the appearance of secrecy that is the juicy part and not necessarily the thing itself.
I think there’s something very deep in this and in the way we treat different kinds of truth, particularly in the media. I’ve always thought about the way in which we treat a hot mic moment or something that is revealed in a tape of a speech in a private place as more revealing of a politician’s true beliefs on something than the speech they give in public or the comments they make with more thought. The idea that secret knowledge, hidden knowledge is more truthful than public knowledge.
But here, too, there is this very funny way where if all of this had come out in the hearings all at once, it would be really shocking. But because so much of it was known, because Trump, I mean, literally spoke to the Stop the Steal rally, because he said publicly that Mike Pence wasn’t doing what Mike Pence should do, that it doesn’t have that force of revelation.
And yeah, it’s like we somehow price it in with him in a way that I think is very damaging, but also in a way that I think the hearing is trying to combat. Are there things you’ve learned throughout the hearings that you didn’t know before or that have filled in texture on the story that you didn’t have?
Beyond the obvious and the big stuff, more detail about the actual attack on the Capitol and the insurrection and that sort of thing, what’s been interesting to me is actually the way in which we’re seeing that there were real divides among the conservative establishment about how to approach this. The revelation, for example, that John Eastman, the lawyer — one of Trump’s lawyers who sort of helped spearhead the scheme with the Electoral College and with counting the electoral votes, that he said to someone — I think someone on Pence’s staff — that he thought that there were two votes in the Supreme Court for whatever happened if it got to that point.
What’s interesting to me, it lines up with the revelations we’ve gotten about Virginia — Ginni Thomas, Clarence Thomas’ wife — and her active involvement in trying to persuade Republican state legislatures to go along with this scheme. It seems to me that beneath the story of integrity on part of the Georgia Secretary of State, or the Arizona Speaker of the House, or Mike Pence, or whomever — below that story, there’s also a story here of how the conservative establishment might have gone along with this given slightly different conditions from what we had. And that to me is, to put it lightly, very troubling.
So I want to pick up on that idea of the divisions or issues inside of the Republican Party. One thing that has been very striking to me about the hearings is how much the political strategy of them, for lack of a better term, is to try to cleave Trump and the people around him who abetted the scheme off from the broader Republican Party, including much of the Trump administration.
So the hearings haven’t made, say, Vice President Mike Pence out to be somebody who did, you know, just enough to not actually try to subvert the Constitution. They made him out to be a hero. They’ve made Attorney General William Barr, a very complicated figure in my view, out to be a hero.
They’ve really tried to tell the story through the voices of Republicans serving inside the Trump administration around Donald Trump, who didn’t go along with him and who tried to tell him to stop and were overruled. How have you understood that dimension of it, both whether they’re tracking something real in the Republican Party — that’s a cut you can actually make — and whether they’re tracking a political strategy here that makes sense?
I think this is primarily a political strategy. I think you’re right to identify it as an attempt to cordon off Trump from the rest of the Republican Party, to have a Republican Party that is largely the same as what it is, but it just no longer has Trump as a significant part of it and has room for anti-Trump energy or at least Trump skeptical energy.
The problem is that as far as the actual existing Republican Party goes, there’s not really a meaningful faction in terms of the voting public, I think, that would identify in this way. You do have some more traditional Republican establishment politicians and figures.
But where the energy of the party is is with the kind of politics that Trump brought to the fore, is with the real disdain for broad democratic participation among all Americans, is with the monomaniacal culture war fights and the attempt to use the state to prosecute them. This is the whole appeal of Ron DeSantis, the Florida Governor, to many Republican voters.
And so one of the most revealing things to me about the Republicans that have testified is they go on about how Trump tried to subvert the Constitution, how he was breaking the law, et cetera, et cetera. And then you ask, well, would you vote for Trump again? And they say, yes.
And that to me is the whole story, right? That’s the whole thing. That their complaint is with Trump doing this one thing that they thought was unwise. Their complaint really isn’t with Trump as a political figure or the Trump movement as a political movement.
And I think the Republican Party, by and large, has reconciled itself, even embraced whatever Trump brought to the party. And unfortunately, what Trump brought to the party was just a — if not disdain for it, then at least indifference to democratic ideals, to democratic aspirations, to the idea that people who do not vote for you nevertheless deserve political representation and the right to have an impact on the governance of the country.
So I hesitate to ask this question because I worry that this kind of conversation almost substantiates the problem that it is tracing. But then who is the audience for these hearings? What would it mean for them to be effective? Is being effective, from your perspective, even something that is within the power of the committee to achieve?
That’s a good question. So I imagine that the audience for these hearings — I imagine that the audience that maybe the committee might want are ordinary Republican voters. I think they want them to see that the President of the United States was trying to break the law and subvert the Constitution. For these hearings to be a success, then you can’t count on them necessarily persuading Republican voters or Trump voters.
I think for these hearings to be a success, you should aim at kind of helping to establish the political ground for prosecuting Donald Trump, for taking this into the legal system, because we’re past the point where there can be direct political consequences for Trump. This is a kind of a failure of impeachment. Impeachment is made for exactly this situation. But he wasn’t removed. And because he wasn’t removed, that means he can run for office again.
So the next best thing is the criminal legal system. And I think that what the committee has done quite effectively is shown that Trump was engaged in a conspiracy to break the law and knowingly engaged in the conspiracy to break the law. And then the political question becomes, does the Department of Justice, does the federal law enforcement apparatus have the will, and does the President, Joe Biden, who is nominally not supposed to have any influence on this, but come on — does he have the will to do this?
And are people willing to accept that, yes, a third of the country is going to reject a criminal prosecution of Trump as illegitimate? But that’s just something we’re going to have to live with, because the alternative is to let this guy, who it’s beyond obvious at this point that if he gets a second shot at the White House, if he gets another bite at the apple, he is going to do very terrible things with the power he has. Are we just going to let that happen or are we going to try to do something about it? And are we going to try to use a prosecution to send the message that needs to be sent to Republican elites that there actually does come a point where you have to face real accountability? Because part of this story, I think, in the broad sense is of the complete absence of accountability from the high levels of American politics.
Nixon said that when the president does it, it’s not illegal — or some version of that. And effectively, that’s become the case. Going through the second Bush administration and the torture controversy, I mean, as you begin to look at the totality, what Trump represents right now is the culmination of the project of making the president essentially above the law.
And I think that’s what we’re — we’d really be staring at in a scenario where the commission, the committee provides all of this evidence of lawbreaking, of severe lawbreaking, of the kind of lawbreaking that — I’m not like a worshipper of the framers or the founders, but they would be very upset about this. This is exactly the kind of thing that they were very much afraid of.
I want to take this at two levels, the substantive and then also the political, because I think it gets to something deep. When I said a minute ago, who’s the audience, who is the plausibly persuadable audience, I think actually the most honest answer to that is Merrick Garland. I don’t know how much influence President Biden has over him in this. I think Garland probably takes his independence here fairly seriously.
I’ve heard some reporting — although you never know what these leaks are actually motivated by — that Biden feels Garland has been a little wan on these issues, a little overly restrained, which — I don’t know, I feel like bringing back Merrick Garland as AG as some kind of weird callback to the last season, it was such a strange decision from the beginning that I’m not surprised it isn’t working out great. But Garland has to make this decision about whether or not to prosecute.
And one thing that has been so frustrating to me watching the narrative and the conversation over this play out is, first, as you say, we seem to have backed ourselves into a position where if you’re an ordinary American who believes the president is telling you the truth and he tells you the election is being stolen, that there is a generational level political theft, a definitional political theft taking place just a couple of blocks of that away, that you are responsible, legally culpable for overreacting to that information and rushing the Capital, but he is not responsible for inciting you, right?
He’s the person there with the power and the information. And similarly, that it seems plausible Peter Navarro is in trouble for not cooperating with the committee. It seems plausible that some of the people right around Trump will fall for this. But again, not him. So, one, as you say, I think that creates a very dangerous dynamic where the fact of it is that to be at the center of politics, to be the most powerful person means you are the most unaccountable.
And then secondarily, you’ll get into these weird discussions with people like, well, these are kind of complicated crimes. Conspiracy to obstruct the proceedings of the blah, blah, blah. Do you know what people go to jail in this country for? It’s a lot less than trying to subvert the 2020 election.
It is things that in any consequentialist analysis are much more modest than I tried to break American democracy in half for my own political gain. We’ll get to the real difficulties here in a second. But I think the conversation really, really seems to skip over that.
No, I was actually very recently complaining about this exact thing to a friend. That in this country — if in this country you drive a buddy to a convenience store, and you’re waiting outside, and your buddy decides he’s going to rob the place, and then kills the clerk, and then gets in the car and drives away, and you guys get arrested, the driver, who may have not had any knowledge of any of this, who certainly wasn’t holding a gun or didn’t pull a trigger, the driver can go to prison and can go to prison for a long time.
I happen to think that that’s ridiculous. But if that’s the case, if you can go to prison for being an unwitting accessory to someone else’s crime, then it does not make any sense to me that somehow Donald Trump, who in addition to actively taking a role and trying to subvert the election, literally stood outside and said, Mike Pence needs to do the right thing, and if he isn’t, you know, we have to be strong, we have to be tough. Pointing an angry mob at the Capitol. If that doesn’t arise to something, then there’s, I think, a real problem.
I had mentioned earlier that it’s a real shame that the impeachment process didn’t result in his removal from office and him losing the ability to run for office, because this really is the kind of thing that impeachment is made for, this sort of both legal and political question. I think a lot of the impeachment of Andrew Johnson — here, Andrew Johnson was nominally impeached for his violation of the Tenure of Office Act, which was probably not even constitutional to begin with. But that’s what he was impeached for.
But what he was actually impeached for, and what everyone recognized he was impeached for, was not just essentially trying to reconstruct the South in basically its antebellum glory just without slavery, but also for his kind of reckless and inflammatory rhetoric that many of his opponents felt was emboldening ex-Confederates to do violence to freed slaves.
There’s a recognition in that impeachment trial, a recognition in that whole moment that a president’s words aren’t just words. That they carry an entirely different weight than a private citizen than any other elected official. That the president’s words hold unique import and influence and power and should be treated as such.
And so even if Donald Trump didn’t directly say to the people gathered for the Stop the Steal rally, you need to go in and grab Mike Pence and hang him from the gallows, his rhetoric, his demeanor, everything about him in that moment signaled basically that. And there needs to be a process to be able to hold him accountable for that, even if he’s no longer in office, no longer — even if he is now technically a private citizen, which, of course, he’s not just a private citizen anymore. That’s the other thing.
Also, on that Pence thing, one of the things that came out at the hearing, or at least was told really well at the hearing, is there is this moment when Pence is in the capital, when the mob is in the capital, when they are ultimately only 40 feet away from Pence, and the people around Trump get to him and they say, you got to send a tweet or make a statement telling people to calm down, this is getting to be a really bad situation.
And then one of the people testifying at the committee says they look at the notification that comes up on their phone for a new tweet from Donald Trump and it’s attacking Mike Pence. It is focusing the crowd’s rage on Mike Pence. So it’s just something to say here. This was all happening in real time. Donald Trump was watching this stuff on TV. He knew this was happening.
People are trying to get him to calm the mob down or to deploy troops or something. He not only doesn’t do that. He directs their ire at Mike Pence. When you talk about there being these hang Mike Pence chants, that did not come from nowhere. That was not some kind of fun invention of the crowd. That was Donald Trump, who had pointed them at the Capitol, pointing them at the vice president.
Right. That’s exactly right.
In real time.
Yeah, in real time.
Sorry, it’s just the whole thing is so unbelievably nuts. And the fact that the Republican Party is not more upset about it is really unbelievably nuts. I mean, oh my god, can you imagine if it were — it would look totally different somehow if it had been a Democratic mob in the capital that’s trying to hang Mike Pence.
I mean, if there had been a Democratic mob in the Capitol trying to hang Mike Pence inspired by — I’ll say that — inspired by a Democratic president or Democratic ex-president or something, first of all, the hearings would not be happening a year after the fact. They’d be happening immediately. And second of all, we wouldn’t be trying to guess if there was going to be criminal prosecutions of that political figure. There absolutely would be. I think that if this were all reversed, the Republican Party would be much more politically aggressive about pursuing it and using it for the sake of establishing its political position.
So Jack Goldsmith, who is a former Assistant Attorney General, had, I thought, a pretty thoughtful piece in The Times Opinion recently, laying out both the case Garland could and would have to make to prosecute Trump, but also the political considerations he’s probably weighing as he decides whether or not to do it.
And so he writes on the one side — a side we’ve talked about a bit here — quote, “A failure to indict Mr. Trump in these circumstances would imply that a president who cannot be indicted while in office is literally above the law in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election.”
But Goldsmith goes on to also lay out, I think, correctly, what is the other side of the case. And I want to hear how you respond to it or think about it. So he writes, quote, “Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which a nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude, would last through and deeply affect the next election. And would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.”
So how do you think about the balance of considerations weighing against prosecution? And I think particularly that first bit, that idea that to actually prosecute the previous sitting president would be a crossing of the Rubicon and an opening of a box that we don’t want to cross or open.
I take that argument, I take that fear very seriously. And I do think that it would represent a crossing of the Rubicon. As I said earlier, there are things that once you do them, they are done and they are part of the political realm of possibility now. And so prosecuting Trump would put the prosecution of an ex-president within the realm of possibility.
But that I think is why it’s important, if this is going to be done, and I think it should be done, to make it clear politically — and this is what the committee is doing to show, A, that this is not happening because Trump was a Republican, because Trump was the kind of Republican he was. It’s not happening because Trump was unpopular. It’s none of that stuff.
It’s happening because of specific discrete events which resulted in people dying, and was a threat to the integrity of the United States Constitution, and which broke actual laws that we have. And establishing that from the top through the committee, continuing to put that into the public eye, to make it part of the public’s understanding, and then for this to be reinforced by a prosecution, it has to be part of the process.
Because I do think that there’s going to be a segment of Americans who just reject this outright. But we actually don’t know how big that segment is going to be. Is it going to be half of Americans? I don’t think so, because recent polling suggests that more than half of Americans — quite a bit more than half of Americans — think Trump should be prosecuted. Is it going to be a third of Americans? That seems kind of reasonable. Is it going to be 20 percent of Americans? That could be it, too, right?
And so it’s not to say that there’s nothing to worry about if only 20 percent of Americans think the president was illegitimately prosecuted. But the alternative to that is effective presidential lawlessness, that the president is above the law, and there’s nothing a president can do in office that would bring legal consequences. I believe this opens up the door to — especially since Trump has said that he would pardon January 6 participants if he were elected to office again.
So I think he has opened the door to the president directing goon squads to attack opponents and then pardoning them after the fact. There’s nothing in the rulebook that says I can’t do this. Pardon power is pretty unlimited. So why not? And there’s not going to be any consequences or repercussions after the fact.
So I think the real danger this may pose to the political culture of the United States, the way this may produce even civil unrest among Trump’s strongest supporters, I think that’s a risk that needs to be taken. I think we’re in the place where there are no longer any good options. There are no longer any options that are going to be non-disruptive to the functioning of American political life. We’re past that.
So now we’re in a place where we have lots of bad options. And I think the least bad option is a prosecution, because at least that communicates the essential message that presidents are not above the law, that the law applies to president as well, even when they’re out of office. And that a president who is tempted to use their office to attempt to subvert the Constitution, hold on to power, subvert an election, if they fail, will be subject to real consequences. That’s a message that would be taken, I think, from all people looking to hold that office.
I think that point that there are no good options here is a really important one and one that is not front-m loaded actually enough in the conversation. I mean, I remember writing about this when Trump was being banned from social media. That you didn’t have to like the bans to recognize that Trump had put everyone now in a position where there were no good options.
That it was a bad option to ban the president from major social media platforms, and it was a bad option to have the president spreading election misinformation and arguably inciting violence on those same platforms. All the options now were bad and he had forced us into bad options.
And I think a similar dynamic lurks even in the language we use here, even in the language I used a second ago. So I tried to echo that view that would be crossing a Rubicon, that we’d be opening a box, that — to use Goldsmith’s language — that it would be a cataclysmic event.
And it’s interesting how that hides the idea that the Rubicon has already been crossed, the box already opened, the cataclysmic event has already happened when a sitting president tried to overturn the election, first, through this scheme, and then, second, by inciting a mob.
And somehow that — I don’t want to say it’s faded into the background, but it’s like we’ve absorbed that. And so now the idea there would be true consequences for that act, that feels like the line you can’t cross, as opposed to saying, well, the line has already been crossed. We’re just now in this horrible space that we have to figure out what to do with it. And to do nothing, I think at the very least should be admitted to be a radical act.
It might be the radical act you want to take. You might say, as much as it is a genuine obvious danger, both to the rule of law and to future precedent in this country, I think it’s better for the country not to prosecute Trump. I think that’s fair. But it is radicalism that hides under the guise of doing nothing. Because it is a status quo, I think it manages to sneak in a kind of normalcy that it does not deserve.
I think that’s very much right. I think that’s right. One thing — I’m sure you’ve noticed this — is that in talking about January 6 and talking about everything, one of the refrains is that it didn’t work, it didn’t succeed, and the peaceful transfer of power continued. That’s great American tradition stretching back to 1800. We continue to do it.
And I think that’s wrong. I think January 6 was — we did not have a peaceful transfer of power. We had a transfer of power under duress, essentially, with the threat of violence at the door. And I think the extent to which we talked about as if we did have a peaceful transfer of power is indicative of how I don’t think the true break that January 6 represents has really sunk in with even the people prosecuting the political case against Trump right now.
That the issue here, the task before us isn’t to, as you said earlier in our conversation, produce an after-action report for something that happened in the past and is over in a discrete moment. The task ahead of us is that January 6 opened up a whole realm of new possibilities, none of them good, for the American political system. And that now we have to close those possibilities as much as is possible. Some of them will not be closed, but some of them can be by the use of methods and mechanisms of accountability and of punishment for the relevant actors.
And if we’re not going to do that, then we just have to admit that the aesthetics of American politics may seem the same, but the actual underlying thing has changed in a fundamental way that may result — well, I think in my opinion will likely result. And if not another attempt at a literal January 6, then at a concerted attempt at trying to basically subvert the democratic culture of the United States and subvert that from within for the purpose of narrow partisan gain.
There’s also a question here from — I don’t want to exactly call this a media perspective, but let me call it the attentional perspective — which is I think the view that many have about January 6 and the whole election scheme was that the country, to some degree, has moved on. I mean, a couple of tens of millions of people have watched the hearings to some degree or another. Those are probably mostly pretty liberal people. I would bet money on that.
And there’s a feeling that, yeah, this is a maintained obsession of liberals, and liberal commentariat and people of Trump derangement syndrome, but the country doesn’t really care. And I think that treats the question of what the country cares about as — to use the social science term exogenous to what the political system and the judicial system do as opposed to endogenous to it.
So the country doesn’t care about things when those things fall out of the news. And it seems like the political system doesn’t care. And on the other hand, if the attorney general of the United States opened up criminal proceedings against a former sitting president, I think that would generate a lot of attention. And a lot of people would have very strong feelings about that.
Now, you might say that’s a bad thing and you don’t want to unleash those feelings. But the level of attention and interest — it will change depending on whether or not people think this is a live question in American politics. To the extent it is treated as dead, the Republican Party is not itself going to sanction Donald Trump. And so Donald Trump will not be sanctioned.
Then I think it’s a genuinely rational question as to why should anybody spend their scarce hours, minutes, energy, time trying to build in their head an ever more detailed view of these events and a view of what should be done about them, whereas if the question is actually what should be done about them, and there’s legal proceedings, and a lot turns on how you understand the events of that day, that has a different implication for whether or not people are going to pay attention to it, and who will, and how many of them, and how it will or will not reorder American politics.
I mean, I very much think that the public concern, public believes, what the public is interested in is often incoherent. It doesn’t have any — it doesn’t take any particular form. The form it takes is very much shaped by the actions of political actors and those actions as interpreted by and broadcast by the media.
And so this is why — I mean, this is why I think that Democrats, in particular — since I think that here they are the prime movers — would do well to talk about this in terms of a prosecution for Donald Trump. Because I think that will catch the attention, right, of people who report on this. It will mean something for individual voters. And it means something for Democrats, especially. Just Democratic voters will take the message and begin to act and respond at the polls, accordingly.
And it may sort of give the question more and greater political salience for someone like Merrick Garland. And then if he takes that step, then, yeah, we’ll have to deal with the fallout. And I don’t know what the fallout is going to be. And I don’t know — this would have a major effect on how people take in American politics.
Voters would immediately see that, oh, this is serious. This is something I should care about. This is something I should have an opinion about. And that will begin to shape things. The parties will have to respond. All sorts of things. It will be the kind of splash that forces everyone else to reorient themselves and figure out how they’re going to react to it.
I am of the view that those attention-grabbing moves are actually kind of important. And they’re a way that a party begins to seize control of the political narrative. And although I think that the substantive reasons for prosecuting Donald Trump are very, very strong, if you think about the political reasons as well, if the end of the summer or in the fall, Merrick Garland announces charges against Trump, that changes the conversation and narrative around the elections happening.
It turns the elections into a way to contest and talk about this thing. And I think that actually might be — I think that might be a good thing to happen. I think that this is the thing that needs to be litigated out in public as well as in the courtroom.
So I want to end on a bit of historical perspective, because you had an interesting column that bounces around in my head a while back on which kinds of rebels and rebellions America punishes and which kinds it doesn’t. Can you talk a bit about that?
So that column, if I remember correctly, began by noting that many of the leaders of the Confederacy basically died in their beds. Died at home in their beds outside of any kind of — not incarcerated or not under any police or federal supervision. But they died in their beds peacefully. The federal government, for a variety of reasons, did not pursue really any kind of charges against the leaders of the Confederacy, right, the leaders of the most significant rebellion in American history that claimed between 600,000-800,000 lives — a real catastrophic event.
And generally speaking, when you look at the late 19th century and you look at all of the political violence that’s happening in the South, there’s very little legal accountability for any of the people who are behind it or who have inspired it. One of the people who participated in an attack on Black voters and white Republicans in South Carolina in the 1870s, a man named Benjamin Tillman, went on to become a long-serving senator and governor of South Carolina. He even had a fun nickname as an homage to his activities. He was Ben Pitchfork Tillman. Very, very fun.
And this is in contrast to radical figures who have been punished, held accountable by the state, and who their targets have often been trying to undermine — they’re the left wing radicals trying to undermine the capitalist system, trying to do something like that. And the thing, I think, I suggest at the end of that column is that rebellion, insurrection, what have you, that doesn’t seek so much to undermine the established hierarchies but reify them and reestablish them, tends to get a softer reaction from the state than rebellion that tries really to undermine existing hierarchies in the country.
And I think — I do think that there is some of that happening here. I think it’s significant that the insurrectionists on January 6 are all a bunch of white and middle class. I think the sense to which these people are coded as ordinary Americans does something in terms of shaping how the public, how political figures, how certainly conservative elites react to what was a moment of profound disorder.
And does that simply reflect the dynamic we were talking about that gets its apotheosis with the president, which is if the president does it, it’s not illegal. If you have enough power and enough followers that your prosecution would impose a political cost, it would be divisive, it could reopen the wounds, then you’re allowed to skate by.
And if you don’t have enough power, if you’re from a marginalized ideology or group, I mean, then you can be locked up, you can be made an example of. But that, in this way, particularly when the crimes are fundamentally political in intent, what matters is not the law but the power of the law breaker.
I think that’s a good way to put it. That the issue — and this gets back to an earlier part of a conversation as well — that the issue with Trump ultimately isn’t a question of what kind of laws he’s broken, but is a question of what political power he still retains.
When he left office in January 2020 — 2021, rather — he still retained a great deal of political power and influence. He still retains a great deal of political power and influence now. And as long as that is the case, it is going to be very politically risky to attempt any meaningful accountability against him. And I think that it’s worth taking that risk. That the risk incurred by not taking that risk is much, much worse.
The last thing I think I’ll say on this is that one way you can tell the story of Trump in American politics is a story of everyone trying to pass the buck to someone else. Trump enters the Republican primary, begins to pick up support and steam. And Republican elites, rather than try to consciously coalesce around an opponent to Trump, decide to fight it out. And when it’s clear that Trump is going to win the nomination, they say, well, the Democrats will beat him and then what is there to lose here? Nothing to lose.
The Democrats do not beat him. Trump becomes president. And then his transgressions and his lawbreaking becomes a problem. The Republican Party is sort of in on it and does not decide to resist really in any serious or meaningful way. And the buck goes to the Democrats who have to be pressured considerably to pursue serious investigations and then Impeachment and even during that process, part of the conversation is, well, we’ll just hold him accountable in the next election.
And the next election happens and Democrats win it. They have this influence now. And there is very clearly a hesitation about holding him accountable. But there is no one else to pass the buck to now. It’s just like you got to have to do something. And if you don’t, then you just need to live with the fact that you’ve made a pretty significant choice of the direction of the political system.
I think that’s a good place to end. So always our final question. What are the three books you would recommend to the audience?
So I am reading — I’ll start with what I’m reading right now is three books. I’m rereading “Free Labor, Free Soil, Free Men,” which is Eric Foner’s book on the history of the Republican Party and the development of Republican Party ideology in the 1840s and 1850s.
I’m also reading, kind of related to that book, which features — that book features a whole chapter on the figure of Salmon P. Chase, who was Lincoln’s Secretary of the Treasury and later Supreme Court Justice appointed by Lincoln. And I’m reading a recent biography of Salmon P. Chase, whose name I cannot recall at the moment, but that goes through his life and his emergence as one of the leading figures of political anti-slavery in the 1840s.
And I’m also reading, the last book on my plate here, is “What It Took to Win,” which is a new book by the historian Michael Kazin. It’s a history of the Democratic Party from its beginnings in the early 19th century to the present. And the thing — these are all very interesting books. They’re great. They’re very readable. I highly recommend them. But the thing I’m interested in right now is the fluidity of the American party system and the years leading up to the Civil War, not because I think we’re on the lead-up to a Civil War. But I do think we’re in a moment of fluidity and change and that there is something new coming out of this moment and we just can’t really perceive it.
And I’m interested in how individual politicians and social movements and political parties have developed new ideologies, developed new approaches, developed new politics in response to these underlying changes happening in society. And I think all those books deal with that question of how do you respond to shifting political forces.
Jamelle Bouie, thank you very much.
Thank you for having me. [MUSIC]
So that is the show. I’m about to do credits, but there’s a name you’re not going to hear in credits today. Jeff Geld, our engineer, sort of the rock of the show, he’s going on paternity leave for a little bit. We are very happy for him. We are going to miss him very much. And we are excited to see him on the other side of his leave.
But as of today, “The Ezra Klein Show” is produced by Annie Galvin and Rogé Karma, is fact-checked by Michelle Harris, by Rollin Hu, Mary Marge Locker and Kate Sinclair. Original music by Isaac Jones. Mixing by Isaac Jones. Audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. And special thanks to Kristin Lin and Kristina Samulewski.
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