The New Yorker Radio Hour - Investigating January 6th

Episode Date: April 1, 2022

With a judge declaring that Donald Trump “more likely than not” committed a felony in his attempt to overturn the Presidential election, the congressional committee investigating January 6th is racing to finish its work before the looming midterm elections. Amy Davidson Sorkin and the legal scholar Jeannie Suk Gersen talk with David Remnick about the law and the politics of holding Trump accountable. And the music writer Sheldon Pearce shares three artists that didn’t get their due in the Grammy nominations.  New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. We're entering a critical stage of our investigation. We've now taken the testimony of hundreds of witnesses with knowledge of the events of January 6th, including more than a dozen former Trump White House staff. The House Select Committee investigating the insurrection has been on the case for the better part of a year. And just in the last week,

we've learned that the White House call log show a mysterious gap of seven hours on January 6th, and a federal judge issued a major ruling in a case related to the committee's work in which he stated that President Trump likely committed a felony in attempting to obstruct Congress.

The Select Committee itself has produced some stunning revelations already, but time is working against it. If the Republican Party gains control of the House in this year's midterm elections, as they're predicted to do, they're almost sure to dismantle the effort and take any idea of accountability off the table. To get a sense of what all this means, I called on two colleagues. Amy Davidson Sorkin, who writes regularly about politics, and Jeannie Sook-Gerson, who covers legal

issues and is a professor of law at Harvard. Jeannie, how would you describe the stakes of what the committee is trying to learn here? And who's listening? I think that history is listening, and the stakes really are to piece together a narrative and to tell the true story of what happened. And that is the purpose of this investigation. But of course, we know that there are criminal charges going on in criminal indictments. We know that there are potential executive privilege cases being litigated in our courts and also just paper. documentary evidence and emails and things like that. And all of that is kind of coming together in this

one large kind of explosion of potential accountability. And it is, it's both important to parse those things as very separate legal phenomena. But at the same time, of course, they all are getting at the same thing, which is, what is the truth of what happened on January 6th? And that is exactly the question that is so central to the divisions in this country. Amy, what do you think? Some of the most important work the committee has done has been to litigate privilege claims, executive privilege, lawyer-client privilege, brought by former President Trump and his associates. One of the turning points in the committee's investigation into January 6th came this January, when the Supreme Court turned away a fairly outlandish privilege claim brought by President Trump

to trying to block the release of documents from the National Archive. He lost 8 to 1. And some of those documents had been torn apart into little pieces and put back together by the National Archive. And in a way that speaks to the work that the committee is doing, trying to tape back together something that's still being torn apart. About two months ago, Jane Mayer published an extraordinary piece in The New Yorker about Ginny Thomas, the wife of Supreme Court Justice Clarence Thomas,

and her political activities, her relationships with far-right figures in Washington, and it was incredibly revealing, and it suggested that perhaps Supreme Court Justice Thomas was wrong and not recusing himself in various cases. Then comes the news that Ginny Thomas was texting with Mark Meadows, the White House chief of staff, and the contents of those texts were quite remarkable. What jumped out at you about that recent reporting? Well, what jumped out at me most strikingly was the fact that this wasn't just expression of opinion, you know, all of us text with friends to express our opinion at what's going on. This was really action, like it was urging Mark Meadows to do something to have the election

results of 2020 overturned. Now, on the conversation about her relationship to her husband, Justice Thomas, I think that's a really interesting one on which I have some complicated feelings because she is the spouse of a Supreme Court justice, and that's obviously why the story was so revealing and explosive and important, like her spousal relationship. She wasn't just any other activist in this space. And Justice Thomas, of course, as Amy mentioned,

has already made a decision as a Supreme Court justice on a very relevant case about January 6th, the one involving National Archives record, And so in that way, it does seem quite problematic, and it's very good that the public knows that this happened. Now, whether there are other steps that should be taken, like Thomas should now recuse himself from any case that could potentially come before the court, well, I don't know that that's really, I think we have to think carefully about that. Honestly, spouses, obviously, many of them have jobs, and sometimes there are two career couples, and sometimes there are people who are married.

We hear that on Fox News, especially lately, that the, you know, this town, meaning Washington, that deathless phrase, this town is filled with couples that have careers that overlap in some way politically, and this is just yet another one in the District of Columbia. Is it just yet another one, Amy? Well, I think the middle ground, in terms of what Jeannie's talking about, between automatic recusal and shrugging and saying this is just how Washington's a strange place, is transparency? Is it possible for a Supreme Court justice to sit on January 6 cases after his wife, as in texts, mind you to the White House chief of staff, not just to anybody,

expresses these extreme views? Let's talk about that. But let's talk about it. I think, What's not a hard question for me is that it should be laid in front of the public. It's also telling in terms of where the Republican Party is that she wasn't just saying, let's try to do something. She was referring to conspiracy theories. It was quite extreme, and that's revealing too. Now, Jeannie, a federal judge recently ruled in a civil case that Trump had likely committed felonies in trying to overturn the election. The judge described Trump's plan as a, and this is quite a quote,

a coup in search of a legal theory. Can you talk a little bit about the origins of that case and how it's significant? Yes, this is the case of John Eastman. He is an attorney, a former law professor. He was an advisor to President Trump about the 2020 election. And he had a plan that he outlined for the Trump team as to how the election results could be overturned, um, by, you know, by essentially having vice president Mike Pence reject the election results. And so he was asked by the committee investigating to turn over documents. And he said no because attorney client work privilege and attorney work product is protected. And essentially it is true that if say you have an attorney and you commit a crime,

in the attorney's presence like conspire to rob a bank, or you just conspire with the attorney to rob a bank. Those are not going to be protected by attorney-client privilege. It's an exception called the crime fraud exception. And that I'm very heartened that this judge put this out there, that it's not simply just like, oh, here are some legal options that we can talk about. There is a line between advising your client about legal options. and actually urging or advising people to do something that breaks the law.

What can we say about the committee's tactics and strategies so far, Jeannie? Some have called them very aggressive, pointing out that the committee is using techniques often used by federal prosecutors against the mob, against the mafia. In what ways are they using similar tactics to how the mob was prosecuted? Is that at all fair? It's fair in I mean it's it's fair but the characterization is fair and also it is fair for the committee to use those techniques. Both sides are fair. In the sense that well the mob is very difficult to investigate because they stick together and they don't they don't kind of snitch on each other. Well they used to they used to. Right. So that's that that's the difficulty that you're facing a bunch of stonewalling. Now we've we've lived through years of. of stonewalling by Trump's associates in congressional investigations and otherwise.

And so it is appropriate when you are dealing with people who are hostile to being investigated and not cooperative to then turn to techniques that are tried and true to get information. At the end of the day, this is about producing knowledge. And if in the process of producing knowledge through an investigation, they come up with some evidence that is criminal, evidence

of criminal conduct, what are they supposed to do? Not refer to DOJ for investigation? That would be absurd. Just in the last few days, there's been a development involving Mo Brooks, of all people, the Alabama congressman who was a full on stop this deal, was endorsed by Trump in the Senate race there, and now has been unendorsed by Trump and has been talking about how Trump wanted him to rescind the election. He's heavily hinted that he might be willing to speak to the January 6th committee. And that's where you go back to the mob analogy. We're dealing here with people who are not the most restrained in their thinking and their actions

and can be affected by delusions of grandeur. And people like that often fall out with each other. And when they do, it can be to the benefit of investigators and progress. prosecutors, and we may find that it is now. I want to ask you both a very broad question, and maybe the question that is on everybody's mind. Donald Trump was impeached twice, and he was not convicted in either case. And we knew that was going to happen because of the composition of the Senate. Now Alvin Bragg, the Manhattan DA, seems to be backing away from any criminal prosecution.

And this committee, well, establishing a historical record, and that's important, is in danger of not having a criminal referral for Donald Trump. And time may run out on it completely because the midterm elections are fast upon us in November. So Amy, do you think that Trump will get off in legal terms, Scott Free? There's an important player in that question, and that's the Republican party today. When we talk about the verdict of history, that matters. So in the shorter term, does the verdict of Republican primary voters who might be deciding whether they give him another shot. And they're influenced in that by Republican Party leaders.

Are they shocked by what they're learning or by what they remember having been there on January 6th? What are they saying to their voters to the people who've elected and trust them in many cases? You know, will he get away with it? what does it mean to get it what is getting away mean in this sense will he get away in terms of how we remember him or in terms of what powers we're still willing to give him that includes the power to influence the republican party and it's it's within the reach of the republican party to

have a say in that jeanie same same question I think that the question of whether he is going to get away with it just cannot focus so much on criminal consequences for Donald Trump. They're just not synonymous. And so I don't, I already think that Donald Trump hasn't gotten away with it. Look at all of the different investigations that are affecting him in New York and in Congress and elsewhere. There are many different avenues for bringing. things to light, and ultimately he's not getting away with it if we bring to light the truth of what he did. That doesn't mean he's got to be criminally convicted, which is a very, very difficult thing to do in any event and certainly of a former president. And it's not even clear that it's in our country's interests to have a former president be criminally convicted after he leaves office. Why do you say that? Because I, first of all, we are having these debates about accountability, but we also know that in this country, every move that the

committee that's investigating January 6th, every time they do more to bring accountability, half of the country thinks this is illegitimate. And so it is not actually clear that having Trump being convicted of a crime is going to change that in a direction that is productive for the continuation of our democracy in a way that could possibly repair things. I very much agree with Jeannie. We have ballot boxes. We have election day. And we have a problem with Trumpism, not just with Trump personally. There have been ideas thrown around about, oh, maybe if there's a conviction, maybe we could just disqualify him from running again. I strongly believe that that's not the answer. This has to be accomplished by democratic means,

and ultimately it has to be done on Election Day. Amy Davidson-Sorkin writes about politics for the New Yorker, and Jeannie Sogerson writes about the law. This is the New Yorker Radio Hour with more to come. This is the New Yorker Radio Hour. I'm David Remnick. Sheldon Pierce is the music writer and editor of the New Yorker's goings-on about town section. So, This guy is so immersed in music that were other critics write up a year-end top-10 list. Sheldon writes a top 30. So the Grammy Awards are a little bit vexed for Sheldon. Are you particularly into the Grammys?

Is it a big night for you? It used to be, I think there has been too much getting it wrong over the last 10, 12, 15 years, that it really doesn't mean that much to. me anymore. I sort of understand how it works as this thing that is trying to get a certain number of viewers on a Sunday night and not really this thing that is aligned with the critical discourse or even really popular interest. Now the idea here is we're going to go to three categories and you're going to pluck one of the nominees out and get rid of it and put something new in that you think has been overlooked. Does that sound good to you?

Right. There's a just generally there's an outlier normally in every single category that just feels like it doesn't fit for some reason. And it's not that I agree with all the other picks. It's just that this feels wrong. And I'm sort of addressing, yes, adding this as a corrective, if you will. All right. Well, then let's start with the best new artist category. Who are you excited about in this category and who can you get rid of? rid of and replace them with. Yeah, well, the artists that seem to make a lot of sense to me, Olivia Rodriguez, who obviously had just a meteoric rise from Disney Channel fame to like the pop culture sphere at large, Arlo Parks, this sort of funky singer-songwriter who has been buzzing a little bit over the past few years and really took off last year. And then Japanese Breakfast, who not only had a really great album release last year, but a really great best-selling memoir.

But the one that really stood out to me as feeling weird was Phineas. People may know him as the producer slash brother of the pop phenom, Billy Eilish. It feels like he is here strictly because he is Billy Elish's brother. He released a project last year, didn't really seem to move the needle one way or the other. And the music wasn't even that interesting. Do you think it's so the camera can pan to Billy Island in the audience? 100%. So if that's the case, and we're getting rid of Phineas, Billy Eilish's brother, who are we replacing him with?

Yeah, I would replace Phineas with this poet, singer, songwriter, Mustafa. from Toronto, Drake endorsed. He has been an activist on the local Toronto scene for a long time. And last year he released a really gorgeous album when Smoke Rises that he describes as inner city folk music. A lot of sort of soft guitars. But there is also light rap drums. And he sings sort of about the struggles of his community in this really, intimate, sensitive way that sort of speaks to his poetry background.

Right, not long ago you wrote a piece for New Yorker.com about Mustafa's debut album, when smoke rises. And you said this. As Mustafa notes on Ali, words can't stop bullets, and as the limitations of his chosen medium set in, he is beset by some truly tormenting revelations. Let's listen to the song Ali. Tell us a little bit about what's going on here lyrically and in terms of his story. Yeah, so Mustafa has been at the center of the Toronto music and poetry scenes since he was 12 years old. He has seen and experienced a lot of violence firsthand. And so his poetry has always reflected the environment that he grew up in.

Sort of connecting with those that he sees on the day to day. not sort of looking out to his city and saying, hey, here's what's going on inside the city, but connecting directly with his peers and being like, please, can we find some sort of resolution to this issue that is plaguing us? I should have left your home. I told you to go.

I told you it wouldn't be safe. I told you it wasn't the way you should have left you home. Sheldon, the next category is a big one. It's Song of the Year. There's a lot of heavy hitters out there. You've got Alicia Keys, Billy Eilish, Lil Nasax, to name a few. Which song do you think needs to be,

you know, kind of trimmed or replaced for Song of the Year? Yeah, the song that I would pull is Ed Sheeran's Bad Habits. It feels harsh to come at Ed this way. I don't even think this is necessarily the worst. song. One thing I will say about the Grammys is generally they'll be like, if you were to pick out 10 songs and say these songs in some way tell the story of the year in music prior. I think that is a more accurate representation of what the Grammys do in modern times. But with that said, the Ed Sheeran song just doesn't feel like it fits into that landscape.

All right. Well, so Ed Sheeran is feeling some pain now. Who you, who you, slipping in in his place? I'm replacing Ed Sharon with WizKid and Thames' essence. I really like that. It's so great. What can you tell us about WizKid?

And why do you think the song, Essence, should have been nominated? Yeah, WizKid has sort of been at the forefront of the African pop movement and bridging it, bridging the gap between African pop and the pop music of America. And essence was just such a massive breakthrough moment.

Really resonated with American audiences in a way that African pop hadn't previously. It was a top 10 charted single. It just feels like a major omission to keep it off this list when it played such a critical role in the music of the last year. All right. Now, so for album of the year, our third category, who do you think will win album of the year and why? Who will win? If I were to pick a winner, I would expect Olivia Rodrigo Sauer to pull it out. Just such a zeitgeist moment in music. And most people sort of pointed to her as the next

Taylor Swift, which is ironic that Taylor Swift is also nominated in this category. So does that mean you're bumping her out of the list and you're going to come up with somebody new? No, the person that I'm going to bump is her back of my mind. This is the third time she's been nominated for album of the year with almost no cultural footprint to speak of. Ouch. I wrote about the album. The album is perfectly fine.

I just don't think it's reflective of this Grammy mindset where it's like you, here we are honoring the people in music that people know. It's like you've got Justin Bieber, you've got Doja Cat, you've got Billy Ilish, you've got Lil Nas X, you've got Taylor Swift, you've got Kanye West, and you've got her. One of those things is not like the other. others. And I would replace that album with Jasmine Sullivan's Hotels. Similar type artist, similar type album, far more ambitious, far more representative of the last year, really resonated with critics, resonated with listeners also in a way that back of my mind has not. And so it's

Like, if you have the opportunity. But this is an especially cold move you're pulling here because Jasmine Sullivan and her are musical collaborators. Yes, her is featured on the Jasmine Sullivan album, in fact. Ooh, ouch, ouch. So what do you want to hear from the album Hotels by Jasmine Sullivan? What song are you recommending here most? Pick up your feelings.

Let's listen. That I've been acting different, yeah. Funny how I finally flipped the script on you. When you don't want those double dipping you. sloppy how I caught to slipping up You're off the piece Run me my keys No more popping up the idiot

I ain't even got the miles a trip on you No phone Who is this? Brand new Like the web Someone's been caught Double Dippin It's an infidelity song Yes, yes

And that is actually reflective Of a lot of this record A lot of it is about perspectives of womanhood dealing with cheating guys, guys who aren't worth the time that women are putting into them. There's a new theme. Who aren't holding up there into the bargain. But at every point, she's sort of looking to friends and other artists for their specific

perspectives on this tried and true topic. And she really ends up getting this panoramic view of an old hat theme. Thanks so much, Sheldon. Thank you, too, David. The New Yorker's Sheldon Pierce. We heard music from Mustafa off his album When Smoke Rises, Essence by WizKid featuring Thames, Jasmine Sullivan's Pick Up Your Feelings, Off the album, Hotails.

And you can read Sheldon Pierce on Pop and Rap, and rock and jazz and more at New Yorker.com. He always brings new insights to artists you know, and he'll introduce you to a whole lot of artists you don't. That's The New Yorker Radio Hour for today. Thanks for joining us. I'm David Ragnit. See you next time.

The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Ava Carillo, Brita Green, Calilea, David Krasnow, Gauphin and Putubuele, Louis Mitchell, Michelle Moses, and Stephen Valentino. With help from Alison McAdam and Mengfe Chen, and guidance from Emily Boutin. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.