No Lie with Brian Tyler Cohen - Republican Senators’ gamble on sedition backfires spectacularly

Episode Date: January 17, 2021

Josh Hawley commits a major misstep in his attempt to save face after helping incite an insurrection and Twitter rightfully bans Trump for using the platform to cause violence. Brian interviews Marc Elias, the lawyer who beat Trump and his allies in the more than 60 post-election court cases, about whether Trump, Don Jr., or Rudy Giuliani could be charged with sedition, why the insurrectionists were only charged with disorderly conduct, and whether a self-pardon by Trump would hold up.Written by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CAhttps://www.briantylercohen.com/podcast/To support Marc Elias and his work, visit democracydocket.comTo help No Lie get matched with the right advertisers, please visit survey.fan/nolie to fill out a brief survey.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about a major misstep by Josh Hawley in his attempt to save face after helping incite an insurrection, why Twitter was absolutely right to ban Trump. And my interview with the lawyer who beat Trump and his allies in more than 60 court cases, Mark Elias, where we talk about whether the insurrectionist could be charged with sedition, whether Trump could pardon himself, and much more. I'm Brian Tyler Cohen, and you're listening to No Lie. So here's where we're at. Before the insurrection, a bunch of power-hungry republicans,

thought that repeating the lie that the election was stolen from Trump would be a good launching pad into their own presidential runs. And so Ted Cruz and Josh Hawley became the faces of this disinformation campaign in the Senate. And they validated Trump's big lie, only to watch that lie then pave the way for an insurrection at the Capitol. It was not well received. Trump and the Republican Party's approval ratings plummeted, with Trump now standing at an all-time low of 29% approval as he's leaving office. There are calls for Holly and Cruz to resign from the Senate, which they won't, along with calls for them to be expelled. So clearly, a major miscalculation from some Republicans who were banking on sedition

being their key to power. But now, rather than admit fault, because let's be honest, we'd be more likely to watch the sun envelop the solar system, Polly penned an op-ed in the Columbia Daily Tribune, digging in his heels and defending his decision to object to the election results. And here's the excuse he gave, which is an excuse that I've seen all over conservative media, and it's this, quote, Dozens of Democratic members of Congress have lodged objections in precisely the same forum over the last three decades. To be specific, Democrats objected to the elections of 2000, 2004, and 2016.

In other words, every time Republicans won the White House in the last 30 years, and they were within their rights to do so, the joint session is the forum where concerns about an election can be raised, debated, and ultimately resolved with a vote. Okay, so real quick, before I get to the Democratic objections, I want to respond to this idea that all this was was just some innocent debate. That is bullshit and Josh Hawley knows that. This was already litigated to within an inch of its life. The idea that the election was rigged or invalid at all was shot down in 64 court cases at the DOJ, the DHS, by Republican governors, by Republican secretaries of state, recounts and audits confirmed it.

And beyond that, Axios just reported that Trump started choreographing how he would declare victory regardless of the outcome all the way back in October. This whole thing was already decided months ago. Rance Prebis admitted that Trump called him in October and, quote, acted out his script, included walking up to a podium and prematurely declaring victory on election night if it looked like he was ahead. And he knew that it would look like he was ahead

because Michigan, Pennsylvania, and Wisconsin Republicans wouldn't allow mail-in votes to be counted until after the election day votes that would favor Trump already came in. So the point of this wasn't to get to the bottom of anything. It was to continue the work of sowing doubt in the system. That was the big lie, and Josh Hawley knows that because he's not an idiot. But by him using this as an excuse,

he's proving that he thinks all of us are. But back to the Democratic objections that Holly wrote about. Now, he's right. Democrats did object to the elections of 2000, 2004, and 2016. So let's talk about them. In 2000, a few House Democrats objected to the certification for the state of Florida

because they claim that black voters had been disenfranchised. Not a fake claim of a stolen election because of deep state actors and nefarious voting systems vendors, which don't exist, but voter disenfranchisement. which actually exists.

And yet still, there was no Democratic senator to join in on the objection. So the certification process carried on from there. That's it. A 20-minute delay. In 2004, Democratic lawmakers Stephanie Tubbs Jones from Ohio, along with Democratic Senator Barbara Boxer, objected to Ohio certification because of voting irregularities in the sense that, again, voters were being disenfranchised.

This was over the disqualification of provisional ballots, of alleged misallocation of voting machines, and disproportionately long waits in poor and predominantly black communities. Does that sound familiar? So Holly's trying to equate very real voter suppression with Donald Trump's temper tantrum about Cuba, China, and Venezuela conspiring to oust him from office. And finally, in 2016, yes, seven Democratic lawmakers objected, but no senators joined them. And there was no debate, and the certification process continued.

And those objections were largely centered around voter suppression and Russian interference. And guess what? There was voter suppression, and there was Russian interference. And yet still the objections were nothing more than a few minutes delay. And so the point I'm trying to make here is that despite Hawley's attempt to equivocate Democratic objections that were born out of legitimate grievances, with Republican objections born out of a constantly debunked lie that nefarious forces from around the globe coordinated to steal an election from Trump,

they are not the same by any stretch of the imagination. Democrats weren't objecting because of some coordinated disinformation campaign to willfully inspire half the country to distrust our free and fair elections. In the instances that Democrats did object, it was because people were blocked from voting, while Republicans like Hawley objected because too many people were allowed to vote, namely Democrats. That's not how it works.

You don't get to object because you're mad that people were allowed to vote for someone who's not your candidate and then reverse-engineer bullshit excuses to justify that. But that's what Hawley did. And as a result of that, a direct result, the people who they convinced to trust them, then stormed the U.S. Capitol in an insurrection that occurred for the first time in over 200 years. And that is why this was dangerous. That is why Trump should be convicted and never allowed to run again.

That is why Hawley and Cruz and the rest of the Senate Republicans who perpetuated this disinformation campaign have no place in the Senate. That's why the GOP lawmakers who aided and abetted this insurrection obviously have no place in the House. That's why Trump and the rest of his Stop the Steel accomplices should be banned from Twitter and the rest of social media because what they did was not normal debate, it wasn't in good faith, it was to incite a mob to kill politicians. And to focus on Twitter for a second here, this isn't about censorship. This isn't me wanting every conservative voice banned. Honestly, I want Republicans on Twitter. Twitter would be a fundamentally different experience if I didn't have the ability to shit on Marco Rubio

for being a spineless bowl of jello who's only capable of spouting Bible verses. I want that. But there is a fundamental difference between free speech and what Trump, and some of his enablers did, which was to coordinate a dangerous disinformation campaign that directly led to violence. And some of the right are claiming that Trump didn't participate in the violence

and that he has the right to speak. And to that, I'd say this, your right to swing your fist ends when it meets my face. Donald Trump's right to inflame tensions and to use Twitter to do it doesn't just end with his tweets. It ended with people dying.

It ended with Brian Sicknick and four of his own supporters not being able to go home to their families. So when Republicans cry censorship, they are willfully and disingenuously pretending, operative word pretending, to be ignorant about the context here. And the context is important. And that context is that you could draw a straight line from the claims that Trump has peppered his supporters with on a daily basis over the course of months and the violence that occurred because his supporters needed to vindicate him as a direct result of those claims. He claimed a stolen election. The rally that led to the insurrection was literally called the Stop the Steel rally.

There's no doubt here. And so everything that we talk about that was born out of these events, be it Trump getting banned from Twitter or conservatives decrying cancel culture or Trump's impeachment or the impending Senate trial, they all have to consider the inciting incident because they were all born out of the big lie where Trump knowingly and willfully lied about an election being stolen that was objectively, factually, indisputably not stolen. And any argument in defense of Trump that doesn't take the big lie into consideration isn't being had in good faith. And that includes Holly's little op-ed, where he tries to save face

by pretending that the scheme he partook in was in any way normal or in any way followed precedent. It didn't. He'll try to normalize it, but it is anything but normal. He helped incite an insurrection. And no revisionist history is going to change that. Which brings me to my interview with the lawyer who actually beat Trump in all of those post-election cases where they argued those exact bogus claims, Mark Elias. Today we have someone who I've wanted to speak with for a long time, who was central to the post-election litigation and directly involved in the lawsuits brought forward by Trump and

his allies. We have Mark Elias. Thanks for coming on. Happy to be here. So I do want to talk about the litigation that you were involved in, but first, there's the small matter of an insurrection at the U.S. Capitol. A lot of these insurrectionists, these domestic terrorists, not to shy away from the term, they're being charged with unlawful entry and disorderly conduct, which for an insurrection

seems a lot like what someone might come back from spring break at Panama City Beach, Florida with. So why aren't they being charged with sedition or a seditious conspiracy? Yeah, so look, I agree with you. I think they should be, and I'm hoping they will be. You know, sometimes because when you have federal charges, and these are federal charges, felonies in the federal system have to be done by way of indictment. So sometimes, and I don't know that that's the case here, but sometimes what they will do is they will arrest on something that they can bring an immediate charge on to arrest the person.

And then they will supersede with an indictment on the more serious charges when they have the time to put the evidence before a grand jury and really flesh out what the charges are. But I agree with you, it will be a travesty if we don't see the kinds of more serious charges, whether it's seditions, conspiracy, or for that matter, felony murder for some of them, because there were people killed in the course of the commission of a felony. Yeah. And I know that you probably can't, you know, there's really no way to tell one way or the other, but do you imagine that these types of upcharges will occur?

I would hope so, and I'd expect so. I mean, I think that the Department of Justice recognizes is how serious this is. They're putting substantial resources, the FBI, into tracking these people down. And I don't, I wouldn't expect they would be spending as much time and money and energy and resources to be tracking all these people down where they were not planning on, on more significant charges. You know, I, for my part, have called for all of the perpetrators to be charged with the most serious offense and not be permitted to plea bargain down from there. That's the rioters, those involved in the ma'b, basically, but looking to those actually responsible, what do you think the likelihood is of charges being brought for Donald Trump,

Donald Trump Jr., or Rudy Giuliani for having actually incited the insurrection? So I don't know. It's a good question. I think that there's going to be a distinction drawn or an inquiry into whether what took place was simply speech and then action, at which point I think it's unlikely that there would be charges for them. I mean, simply speaking on a stage and then people go do something. But I suspect that there will be some look through to see, was there, in fact, a linkage behind the scenes between what the, what those actors who were speaking were saying and the planning that was undergoing the future

activity. So we don't know. I think that that will be an interesting thing that hopefully will get uncovered, whether there was any connection there or not. But I think, you know, that's that's to be determined. I think that the House has impeached Donald Trump appropriately so, because even without that linkage, what he did is sufficient to be high crimes and misdemeanors under the, under the impeachment standard. But we'll see what the criminal justice system yields. Well, referring back to this, this idea of simply speech, I mean, at what point does it not simply speech if you can draw a straight line between Rudy Giuliani calling for trial by combat and Donald Trump saying, you know, fight like hell? And then within minutes, that exact thing

occurring. Yeah, again, this will be sorted out by the criminal justice system. Maybe, you know, know, there will be gradations of this, but I think that the questions that I think are most interesting right now is someone paid for all these people to be there. Someone coordinated for them to take some of the actions they took. And so that's when I talk about pure speech versus, I mean, you could imagine a circumstance in which there is a rally that is going on that you had nothing to do with, right? And you just, you know, you are one of the speakers who go on stage, you say something, and then having nothing to do with you, there was this planned activity that was unlawful. That would present one way. It would present a different way if you were

kind of in on that. So, yeah. All right. So I want to, I want to move over to the post-election litigation that you were involved with. Now, how many of the cases brought forward by Trump and his allies were you involved in? So just a table set, Trump and his allies brought 65 cases. They have lost 64 of them. The one case, I get asked this all the time, what was the one case? The one case was the shortening of a deadline in a county in Pennsylvania for how long voters had to produce ID after the election to have a small subset of ballots count. This involved a few dozen ballots at the most. So that's the one case they want, everything else they lost. I was involved, me and my team were involved in approximately 60 of those, to one extent or another.

So the stop-the-steel rally was literally borne out of this notion that there was widespread fraud, and yet the place to litigate that exact issue was in the courts where Trump and his allies lost, you know, those 64 cases that you were just referring to. So I don't know if you can answer this, but where does the cognitive dissonance come from on the right between these allegations of fraud and a failure to actually prove any of the fraud? in any of these cases, not to mention, you know, the DOJ, the DHS, Republican governors, Republican Secretaries of State. Yeah, so I wrote about this part.

I wrote about this in part in a piece I published on Democracy Docket about the day democracy was attacked. And I compare it to what the famous writer Hannah Arendt wrote about the Eichmann trial in Jerusalem, the post-World War II trial, where she's most famously referred to the banality of evil. which, you know, talked about how really ordinary people do terrible things. But part of what she wrote, which I think is instructive to your answer, is that it is precisely when the lie becomes the big lie, that proof that it didn't happen is taken as evidence that it did.

So in some ways, what happened in the post-election period is that the very fact that Donald Trump was losing in court, went from showing that there was nothing there, to proof for conspiracy theorists that there must be something there because the courts aren't acknowledging it. And that's when it got really dangerous. Right. Because the more you prove that it didn't happen with irrefutable evidence, you know, like the more true it becomes for them. And so then you just have this this complete dissociation between fact and fiction. Precisely. And that's what happened. And Donald Trump is responsible for that. And in a way, they've set themselves up perfectly for this because their whole thing is, you know, the deep state and everybody's out to get

Donald Trump. And so any indication that Donald Trump is losing is just, just further proves their theory that everybody's out to get him. Correct. Correct. And the fact that a hundred and, I don't know, 140 Republican members of Congress for round numbers and a, you know, 10 or so Republican senator, gave credence to this is just shameful. The fact that 18 attorneys general in the United States filed a lawsuit to disenfranchise for entire state's voters is shameful because they validated that big lie

and fed those crazy conspiracies. Yeah, yeah, it's a pretty sad testament to the times we're living in. Well, state legislatures are already using these lies as a pretext to pass more suppressive voting, voting laws that are expressly designed to disenfranchise people of color, young people. For example, Georgia Republicans are now looking to add photo ID requirements for absentee ballots solely because Democrats are more likely to use them.

So I know that you're limited in that you, Mark, aren't in these state legislatures, but is there something that you can do on your end to curb this? And are you already? Yeah, so look, we were involved in, for my first, 2019 through the end of 2020, we were involved in over 150 lawsuits. So the post-election lawsuits, the 60 or so lawsuits that we talked about are the ones that people have spent the most time on. But I am not shy about suing a state or a county that enacts legislation or rules that are simply aimed at disenfranchising black, brown, and young voters. And you're right, that is what we are

about to see. We're about to see a wave of pretextual litigations. that is pretext on the lies that Donald Trump and his allies told to now disenfranchise Black Brown and Young voters. And we'll bring litigation where we need to and we'll speak out loudly and call it out for what it is. Unfortunately, Democrats fail to take a number of state legislatures ahead of redistricting. So we're set to see a number of the Republican gerrymanders either remain in place or get worse. So is there anything that you can do on the legal front to fight back against that? Again, you know, our hands are not entirely tied around gerrymandering. You know, we will bring litigation. I sued after 2010. I had four separate cases go to the U.S. Supreme Court

challenging Republican racial gerrymanders. This is where they were gerrymandering to disadvantage black voters, won all four of them in the Supreme Court. And, you know, we will we will bring litigation where that is the most effective tool to prevent a gross distortion of democracy. Now, it would be great if either Congress passed a law that helped block this or states do or valid initiatives do. But what I always say about judges is that at the end of the day, when the political branches fail, it is the role of the courts to step in and make sure that democracy is preserved. And we saw some of that in the post-election period. We saw a lot of that in the post-election period. And we'll continue to pursue those avenues aggressively in the months to

come. And just to know, what were the four states that you sued over? So I sued more than four states, but the four cases that went to the U.S. Supreme Court, because most of these cases, obviously, as you might imagine, get resolved short of the Supreme Court. Two of them were out of of the state of Virginia, one involving the state congressional map, one involving the state legislative map. One was out of North Carolina that dealt with the congressional map in North Carolina. And the fourth case was a remand of one of the two Virginia cases. So it was two maps in Virginia, one map in North Carolina. And does it make it easier moving forward if there's precedent thanks to those cases in other states? Absolutely. It helps everywhere any

time we establish good law around gerrymandering. Now, I want to be clear, though, those were cases that involved racial gerrymanders. So what I think a lot of us are worried about is that we will see more partisan gerrymandering. So those cases involved Republicans and legislatures using race as a way to disadvantage black voters. What we, a lot of us fear is that we will see legislatures say, no, no, no, wasn't looking at race at all. We were just simply drawing the districts using partisan data. And is that more difficult to litigate against? So the U.S. Supreme Court has found that under the federal constitution,

there is no current claim against a map for partisan gerrymandering. So you can't go to federal court on that. Because it's not like a protected class. It's, well, what they actually said was a little more complicated. What they said is that we don't have a judicially manageable standard to know how much partisanship is too much partisanship. So therefore we're going to not, we're not going to hear any cases involving partisanship. It's a little bit of a dodge.

But the good news is that several states have found in their state constitutions a prohibition against partisan gerrymandering. So we saw that in Pennsylvania. We saw that in North Carolina. I was involved in the North Carolina litigation that involved the striking down of their maps as partisan gerrymanders under the state constitution. All right. Great.

Well, I do want to move over to. to Sidney Powell, she was just sued by Dominion Voting Systems for $1.3 billion. Do you, what can you imagine would be the likely outcome of that defamation lawsuit? And how does a human being pay a $1.3 billion bill? Well, look, obviously I'm familiar with Sidney Powell. She filed a series of lawsuits in the post-election period that were, that were, you know, nonsensical. It's funny because we derisively called them the Cracken cases. and she embraced calling them the Cracken Cases,

a name for a mythological octopus. But in any event, those cases all failed. And as you say, Dominion, the voting equipment company, has now brought a civil lawsuit for defamation because part of her argument involved crazy conspiracies about the voting machines. I'm not in a position to say what the damages are. I will say that the claims that she made were

outrageous. They were not true. They were defamatory. I'll leave it to Dominion's lawyers to figure out, like, how they calculated $1 billion versus $800 million versus $2 billion. I just don't know. So this is a topic that a lot of people are speaking about and that seems to be one of the last vestiges of worry as Trump prepares to leave office. But do you think that a self-pardoned by Trump would hold up? I personally don't. You know, this is a, This is an open question for, you know, that people can take different sides of. I think that the historical, and by historical, I mean like the long history of why there is a pardon power, the philosophical and historical underpinning of the pardon power would not support the idea of a self-pardon.

It wouldn't have made any sense for you to be able to pardon yourself. You would have been both judge and jury in your own case. So I don't think that there is the ability to do a self-pardon. Wasn't there some degree of precedent with the DOJ just prior to Nixon's resignation, where they basically said that you wouldn't be able to act as a jury in your own trial and so a pardon wouldn't hold up, a self-pardon wouldn't hold up? Yeah. So it's interesting because so there is a part of one of the functions of DOJ that people don't

focus on, you know, it's less prominent and then it pops up is the part of DOJ that essentially offers advice and guidance to the executive branch on what the law is. So set aside the parts of DOJ that prosecute crimes, the parts of DOJ that go to court, there's a part of DOJ that actually provides essentially opinions to the president, executive branch about how to interpret the law. It is that function, by the way, that issued an opinion that said a sitting president can't be indicted. Yeah.

Right? and Bob Mueller felt bound by that prior internal opinion. Well, as you point out, that those same folks around the same time, I think, actually, as that other opinion issued one that said that a president can't pardon themselves. So it's not binding on the courts, but it's certainly influential on the courts, and it is, in theory, at least, binding on the Department of Justice. So that speaks to Department of Justice policy. Okay. So Mark, tell us about Democracy Docket and what we can do to help.

Yeah. So Democracy Docket is a website that I built that really has two functions. The first is to make accessible to everyone, the court, the underlying court documents in important voting cases. So that during the post-election period, when people were saying, well, Donald Trump lost this case and Donald Trump was saying, no, no, no, I didn't. Like, you could actually go there and see the documents yourself. So you didn't have to take my word for it or Donald Trump's word. The other is it's a platform for opinion and idea, development, and promotion. Amy Klobuchar, Senator, wrote something a few months ago about the need for more funding

for states and local governments around the pandemic and voting. Allo Black, the recording artist, wrote about the importance of voter registration. So it's a place where I write and others write and offer opinion and perspective. And right now, we are launching 100 days of democracy concurrently with the beginning of the administration. And the goal here is to help formulate a new democracy agenda. We've seen what destruction Donald Trump has done to our democracy, our institutions, and we need to grow stronger out of that. So what can progressives do? What could Democrats with a uniform, unified government do?

And so rather than just embracing the ideas we've all had, we want to, I want to bring people together with diverse viewpoints about what it means to restore and strengthen democracy around a new agenda. And so that's what we're doing for the next few months on democracy docket.com. Great. And I'll put a link to that in the post description. Great. I do have one more question, actually. Fire away. Lou Dobbs suggested that Stephen Miller hire you for half a billion dollars. And so my question mark is how long exactly did it take for you to get your rate up to $500 million? So it's interesting you say this because this will shock you. I don't watch Lou Dobbs.

So I had somewhat say to me, say, hey, Lou Dobbs thinks you're worth a half a billion dollars. That was the first. That's not like, huh? So then I went and found it. I found the clip and I was thinking, man, I mean, like, how about just like $200 million? Like, I'll give me a discount. But, but. But, no, I wouldn't, there's no amount of money that would cause me to work for Stephen Miller or the Republican Party.

Well, that's good to hear. I'm happy doing what I'm doing. Take it as a compliment that they think you're worth half a bill. So, Mark, thank you so much for taking the time. And thank you for all the work that you've done throughout this entire post-election period. You've given a lot of people the ability to rest a little easier at night. So thank you. Thank you.

Thank you for having me. Thanks again to Mark Elias and check out Democracydocket.com for more information. Now, before I go, I'll be live streaming the entirety of Joe Biden's inauguration on Wednesday, January 20th, on YouTube. So if you're not yet subscribed to my channel, head over to YouTube, type in Brian Tyler Cohen, and hit subscribe. And then tune in on Wednesday to watch Joe Biden get sworn in. It has been a long, long four years, but our job now is to fight for both the progressive agenda that we were promised and accountability for those who deserve it. And each of those are worth fighting for. That's it for this episode.

Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen, produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app, feel free to leave a five-star rating and a review, and check out Brian Tyler Cohen.com for links to all of my other channels.