The NPR Politics Podcast - The Jan. 6 Case Against Donald Trump is Taking Shape

Episode Date: November 21, 2023

The federal election interference case against former President Trump is months away from going to trial, but last week we got a sneak peek at how prosecutors plan to make the case that Trump was responsible for the violence of Jan. 6. Plus, the Supreme Court took the unprecedented step of adopting an ethics code. But watchdogs aren't quite satisfied. This episode: White House correspondent Deepa Shivaram, justice correspondent Carrie Johnson, and legal affairs correspondent Nina Totenberg. This podcast was edited by Lexie Schapitl. It was produced by Lexie Schapitl and Jeongyoon Han. Our executive producer is Muthoni Muturi.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Morgan, and I'm originally from Washington State. I will forever be a proud Washingtonian, but today is the day I finally get to take my oath of Canadian citizenship. Today's podcast was recorded at 106 p.m. Eastern Time on Tuesday, November 21st, 2023. Some things may have changed by the time you hear this, like me becoming a fully fledged citizen of the true north, strong and free. Well, I have to get going to my citizenship ceremony, but here's the show. That's awesome. That's so nice. Hey there, it's the NPR Politics Podcast. I'm Deepa Shibaram. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Nina Totenberg. I cover the Supreme Court. The federal election

interference trial against former President Trump is still months away. But last week, we got a preview of how government prosecutors will argue that Trump is responsible for the violence at the Capitol on January 6th. The Justice Department outlined some of the evidence they plan to use to build their case in court filings last week, but it was unusual to have this sort of sneak peek. So, Carrie, how did we get to see this evidence? How did this happen? Donald Trump's lawyers filed a kind of unusual motion, you don't see it in every case, seeking to remove language about January 6th from the indictment. And in response, the Justice Department special counsel team basically unloaded on Donald Trump, providing a sneak peek of some of the evidence that it intends to use to tie Trump to the violence on Capitol Hill on January 6th.

Remember, something like 140 law enforcement officers suffered injuries that day. Some of them were very serious. Trump says he has no relation to that violence. But the Justice Department very strongly disagrees and laid out some of those clues and hints in court papers. So what did we learn from this filing? Did it include any new evidence or any new arguments that you kind of found interesting? Yeah, the special counsel says January 6 was actually the culmination of multiple alleged conspiracies that Donald Trump led, that Trump directed an angry crowd to the Capitol, that starting about 15 minutes into his speech to rally goers, people started leaving to walk to the Capitol. And they intend to prove that with

videos, photos and cell phone pings of specific rioters who then went on to strong arm police and break into the Capitol grounds. The prosecution also says that Trump used this angry crowd as kind of a tool to intimidate his former Vice President Mike Pence, who remember had to go into hiding on the Capitol grounds that day. And authorities say that Trump continues to embrace some of the most violent rioters to this very day. He said on the campaign trail, he may pardon some. The Justice Department says they think that's powerful evidence of Trump's motive and intent that's really relevant to this case. But Trump is going to fight tooth and nail from getting a jury to actually hear a lot of that evidence, especially that evidence about the rioters who beat up police with poles and flagpoles and sticks and bear spray and all that stuff.

So that's to be determined. The trial judge, Tanya Chutkin, is going to make those ultimate calls. So there was also a hearing yesterday on a gag order against Trump in this case. And I'm curious how that unfolded. What is the issue there? How is Trump's team pushing back on it? Because I can imagine they're not too happy with any limits on Trump's speech. a GOP frontrunner for the nomination to return to the White House. And it's chilling a lot of Trump's speech, not only muzzling the former president, but also depriving millions of voters of hearing from him on a daily basis about issues that they think are essential to the campaign.

The prosecutors asked for this limited gag order because they talked about a pattern or a dynamic of Trump posting on social media or saying something on the campaign trail that's inflammatory and bombastic. And then some of Trump's most fervent supporters acting on that language, issuing threats against the trial judge in this case, in the case of the civil fraud case ongoing in New York against Trump and the Trump organization, and threats against other people, including people like Ruby Freeman, the election worker from Fulton County, who said that Trump had made false accusations against her and she was afraid to leave her house. Carrie, I wanted to ask you about that. This is a panel that is all Democratic appointees, but they did seem to be having a very tough time weighing two different aspects of this.

One, he's a criminal defendant, and he can't dictate the terms of what goes on in the courtroom. No other criminal defendant could. And on the other hand, the First Amendment right of free speech, and he's the former president of the United States. So is there a way to narrow the gag order? That's a really interesting question. And some of the judges tried to address that yesterday. Remember that this hearing was supposed to last 40 minutes. It lasted almost two and a half hours.

I wish I had eaten breakfast before it began. I did not. Note to self. Don't do that again. No, Carrie. But one of the judges, Nina Pillard, basically said, you know, the gag order that the trial judge imposed limits Trump from targeting potential witnesses. She said maybe that language is too vague. What about the idea of barring Trump from commenting about witnesses because of the testimony they will give. That might apply to people like Pence and former chairman of the Joint Chiefs of Staff Mark Milley. We don't know whether she's got another judge on her side to do that at this point. They're still

mulling over what to do here. And the other interesting thing that came up at the appeals court hearing was Judge Patricia Millett basically said, you know, the language that Trump engages in is not a way I would want my children to talk, but that's not really the question here. The question here is whether we can cabin some of his language to protect the integrity of this trial next year and the participants in the trial. And the third judge in this case, Brad Garcia, the Biden appointee, basically said, do we really have to wait and see what Trump says and does to figure out how much harm it's going to cause before he's subject to some kind of limits and

restrictions on his speech? I mean, potentially that won't make sense because the harm already will have occurred. So they're struggling here with the bounds of this. One of the things that came up was that perhaps Trump should be able to criticize Jack Smith, the special counsel himself, but maybe not the line prosecutors in the case. The thinking there is that Jack Smith has really thick skin. He is not going to quit. He is not going to be deterred. He's already facing significant security threats and has 24-7 protection by the U.S. Marshals. And he's going to keep that. So maybe Trump making remarks about Jack Smith should be open season, but maybe not other people involved in this case. The dynamics here are so interesting, especially when we stop for a second and consider the fact that this was the former commander in

chief and also someone who is obviously running for president once again. We're gonna take a quick break. And when we get back, we'll talk about the new rule in place for Supreme Court justices. Hey, it's Sue Davis. Before we get back to the show, we know you depend on NPR's political coverage and appreciate the fact that we're working every day

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Hear our regular show sponsor-free and get the bonus episodes our supporters enjoy. Or make a tax-deductible donation to your local NPR station, the NPR network, or all of the above. You have choices. What really matters is that you are part of the community of listeners who help keep NPR Network, or all of the above. You have choices. What really matters is that you are part of the community of listeners who help keep NPR going. You can give today at donate.npr.org slash politics or explore NPR Plus at plus.npr.org. And thank you. All right, and we're back. The Supreme Court adopted its first ever ethics code last week after months of high-profile controversies that pretty much eroded public trust in this institution. Nina, there's a lot to get into here, but let's start with the very basics. What does this ethics code say? It actually says quite a bit. I, like a very few others,

think the court should get at least some credit for what it did do. It tries to be somewhat specific about what a justice can and cannot do. One new thing is that a justice is supposed to recuse him or herself if a spouse or child living in the justice's home has a substantial financial or any other interest in a case. Now, that would have meant, for instance, that Justice Thomas would have had to recuse himself in cases in which his wife played a major role. That would have meant that he could not have participated in the case in which President Trump was asking the Supreme Court to not force him to turn over to the January 6th committee materials relating to the Capitol riot that had been subpoenaed. Thomas participated and was the

lone dissenter in the case, despite the fact that his wife was in touch with the White House chief of staff in trying to recruit electors to overturn the election. Now, under these rules, which, as I said, are binding on the court, he couldn't do that. And if he did that, I suspect there'd be a lot of problems. Also in the code is a lot more stuff committing all nine justices to full disclosure of real estate and financial transactions and gifts, rules that do apply to all lower court judges. All that good stuff, of course, is offset by the fact that the ethics code has no enforcement mechanism whatsoever. And it still leaves to each justice the question of

policing him or herself. And there isn't even an office in the Supreme Court that's been set up to do such things as receive complaints. Okay, so this kind of seems like an ethics code and name only in some ways. There's no accountability, it seems like. But there has been a lot of pressure on the court to enact some kind of ethics code after all these stories like you mentioned about how Justice Clarence Thomas was getting gifts and travel paid for by Republican mega donors. Does this code cover that sort of thing that Thomas was revealed to be doing? existed before, but they were not binding, as I said. Now, all nine justices have committed to them, and I actually think that's significant. Thomas was living the high life for decades, taking lavish trips, jet, yacht, courtesy of a couple of rich friends, including Harlan Crow, a big Republican megadonor who bought his mother's house, paid for his nephew's private school tuition, and another friend who lent him money to buy a super high-end RV,

a loan which Thomas paid back the interest but not the principal. Now, he can still do all that under this code, but he has to disclose it. And that's a really important thing. If he or anyone else doesn't disclose disclose and some reporter finds out about it, it would be, I think, a huge, huge deal. And if we're going to give the court some credit for enacting the code, I think we should give a lot of credit to Congress in this case. Because congressional Democrats pushed this really hard. They really didn't want to write a code for the Supreme Court.

But they started to do that. And that's finally when the court decided it was time it really had to write some sort of a code for itself. Yeah, that's interesting. And Carrie, I want to bring you in here. This is a first-of-its-kind code for the Supreme Court, like Nina mentioned. But these other federal judges have always had ethics rules to follow. Are those rules enforced a little harder? How does that compare in terms of what it covers and how it operates?

For at least the last several decades, lower court federal judges do have to follow certain rules. And there are a system set up to allow employees and others to report potential misconduct against those judges. Those systems do not work perfectly. There are some big questions about how timely these judges actually disclose their finances and other things. But the Supreme Court used that code already in place for lower judges as kind of a template for what it did recently, but it made some important changes. You know, there are only nine Supreme Court justices. So the high court basically said these recusal requirements should be interpreted narrowly, because if you lose one justice, boy,

you lose two justices, then you're really in a pickle. And they also remove language from the lower court code that involved reporting violations by judicial colleagues. These Supreme Court justices apparently do not want to police each other. They don't want to rat each other out. changes and adjustments. Those are among the highlights. You know, Nina talked about disqualification and the need to disclose properties and stocks and the like. I must say, it's a little surprising to me that it's not a condition of confirmation that people divest a lot of this stuff because it's going to cause problems. You have a lifetime appointment. You really need to hold on to all of these assets and stocks in this manner. But that's a fight maybe for another day. Most of them don't. Most, though not all, have divested. They're mainly in index funds and mutual funds. But a few of them just hold on to stuff. I don't know why. Maybe there's a tremendous downside financially to some of them,

but they do hold on to some things. I want to ask both of you, how has this code been received by folks who have been critical of the Supreme Court? We talked about congressional Democrats calling for this. And at the same time, I have to point out that public trust in the Supreme Court is pretty much at an all-time low. The average person in this country is not looking at the Supreme Court as a trustworthy institution, or at least as trustworthy as they viewed it in the past. And I want to get your take on this, because it does seem like this code was created as the court was sort of backed into a corner. There isn't really a deep level of accountability here. So what are folks saying in response to this code? And are they satisfied

with the way this kind of played out? Most of the watchdog groups are not satisfied at all. They think it's still a disgrace. But I've talked to a bunch of the ethics experts who think it's at least a good first step. If we have more scandals, it will not be a good first step because, as I said, they will look like they can't be trusted to police themselves. I think that's 100% true. And, you know, I must say that the people I've talked to have scoured this ethics code. We're not super happy about the opening statements about how, you know, justices really don't need to do any of this anyway. But we're just laying it out there because we've already been doing it. The kind of grudging. Worse, Carrie, the opening paragraph said there's apparently been some

misunderstanding of the way we do business. As if, oh, you don't understand what we really do, but we're going to straighten you out and we'll give you this few little things. I happen to think it's more than just a few little things. But it doesn't matter. When you start out that way, you've already set half the table. So don't be surprised if people don't want to show up. But maybe that's what they had to do, Nina, in order to get all nine of these people to sign on to this document. That's definitely true. Because it's a big deal that all nine signed, including some people who you know had to be

drag kicking and screaming into agreeing. You know, it seems to me that one of the themes that's running through our conversation today is this idea of whether you're the former president of the United States or a Supreme Court justice with lifetime tenure, whether you can set your own rules or whether somebody else can set them for you, whether you need to be treated like everybody else or you get some kind of special treatment. And the courts are grappling with that in the Supreme Court. At least some members of the court seem to be grappling with that, too, and certainly members of the public are. All right, let's leave it there for today.

I'm Deepa Shivaram. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Nina Totenberg. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Nina Totenberg. I cover the Supreme Court. And thank you for listening to the NPR Politics Podcast.