Transcription:

Rich Ford: From Stanford University and Sirius XM, this is Stanford Legal. I’m Rich Ford.

Joe Bankman: And I’m Joe Bankman. Today we’re talking with our frequent guest and longtime colleague, law professor Robert Weisberg, a criminal law expert who’s been keeping an eye on the January 6th committee hearings for us.

Rich, a lot of us have been transfixed by the congressional hearings on January 6th, but we’ve also wondered are they leading anywhere? And part of that question is are they leading to any criminal prosecutions?

Ford: Yes. And there are a range of criminal issues from whether Trump aided and abetted the January 6th rioters to whether he obstructed the process of certifying the electoral results to whether he obstructed the work of the January 6th commission itself and lots of things to disentangle.

And so our colleague, Bob Weisberg, who’s an expert in criminal law will help us to untangle all of the criminal law issues, but he was also in a past life, a professor of literature. And so he’ll also take us through the residences with William Shakespeare, from Hamlet to Richard II.

Bankman: Well, stay tuned for the commentary and the play. Trump’s liability. How would, if you were thinking about it, how would you think about it for us? Help us think about it.

Bob Weisberg: Well, you got to go through the criminal code. The federal criminal code is a bit of a misnomer because the term code suggests that there’s some kind of coherence to it. It’s just a sprawling spaghetti blob of statutes that are ill coordinated and that overlap a lot, some of which are very specific to federal law, some of which are fairly common criminal concepts that just happen to apply in this situation because the crimes were on federal property.

I put them in two basic buckets. First of all, if you take the rather obviously illegal actions done by people at and in the capital, the question is what is Trump’s liability for those actions? Now what are those actions?

You start with mundane trespass. Then you have all kinds of special rules that are basically trespass on federal property, trespass on certain government buildings. But then of course, vandalism, destruction of federal property, and some degree of actual assault on people, including federal officers.

Okay. Now, and lots of people are being prosecuted for those things. What’s Trump’s liability? We often talk about incitement, but in a way there’s a more mundane concept at play here, which is basically accomplice liability, which is an incredibly fundamental thing in American criminal law.

In order for him to be liable for those persons’ acts, he’d have to be an aider and abetter or a conspirator because he didn’t commit the acts himself. What would that require? Well notice of course here, we also have to be very careful about First Amendment concerns under the famous Brandenburg case, which says at the very least, you can’t criminally punish someone for the criminal actions of another, the violent actions of another, unless the first person has intended to cause the acts, has intended that they happen imminently and where it is very likely that they would happen imminently.

So that’s kind of a start, but beyond that, you have to show that he had the required mental state, that he had the knowledge or purpose that anything he did or said would cause those violent acts. And of course, what he did or said is on the record. Lots of things he said that could be seen as instigation.

Second of all, was it plausible that these actions of words would play a causal role and better yet, if you were the prosecutor, did they actually play a causal role? This is extremely complicated on the facts. The legal concepts are very, very conventional.

This is what aiding and abetting liability is all about, also known as complicity liability. Let me mention one interesting twist on the usual here. There is a study that came out of Harvard the other day based on analysis of social media, of various people who are being prosecuted for direct actions of the capital.

And it shows that a large number of them directly report that they were inspired, motivated by things Trump said, that they felt that they were following his directions and so on and so on.

With all the abstractions in the legal system about how you prove causation, the system rarely focuses on what concrete evidence can prove that, and this could be an interesting test case where you have attestations of actors on the scene that they were motivated, inspired, induced, and so on, so on by Trump.

That doesn’t mean that it automatically produces guilt, but it is going to be a very interesting test for that kind of evidence. Trump of course will say he was just speaking in general terms. He was exhorting. He was expressing solidarity at a high and rather harmless level of generality about his belief about the election. Second bucket has to do with interference with government processes.

Most obviously interference, or I should say obstruction of congressional proceedings under 18 USA 1505, which is the Congress focused version of the more common notion of obstruction of justice, which is usually about obstructing a court proceeding or a criminal investigation.

And that gets into subtleties of mental state, which are different from the ones in the first bucket. Obstruction charges almost always have in their statutory language this horrible adverb corruptly.

Congress isn’t very smart or thoughtful. It cuts and pastes things in because it used to use words like that and might as well use them now. And nobody really knows what the word corrupt means. It can be attached to an action, which is otherwise inherently legal, but if done with a corrupt motive, it could be illegal. So a lot of this will turn on what Trump really thought was the legal plausibility of Pence refusing to certify the electors and whether he had a corrupt motive.

I know I maybe sound like I’m talking in circles because I’m trying to define corruptly, but that’s the problem. The two things that would most help a prosecution under the obstruction doctrine here would be if he was perfectly aware that there was no legal basis for Pence to refuse to certify the electors and Now, here, as many have said, we need to get into the mental processes of Donald Trump and a couple of things. First of all, even if the notion that Pence had the power to refuse is legally nutty, which almost surely is, it has no sound legal basis, we have to look at the subjective side of it, as well as the objective. It would be hard to prove obstruction unless we were convinced that he himself, Trump absolutely clearly knew that it was full of bologna.

That’s going to be hard to do because he had a couple of acolytes saying otherwise, especially the infamous professor or former professor Eastman. Second, just to say, and this is a less sophisticated, legal point if you will and maybe Dr. Bankman the psychologist would opine on this, it’s not even clear that normal expectations or parameters of human mentation apply to Donald Trump.

A lot of these categories may be sort of in opposite. Last thing I’ll say, and it could be another bucket or may be part of the second bucket is witness tampering under 18 USC, 1512. That was a teaser dropped by congressperson Cheney at the end of one of the hearings. And it hasn’t been fully developed yet, but to be sure, if Trump tried to persuade anybody he knew was going to be a witness before the hearings to say something different from what that person would otherwise say and something that would be favorable towards Trump, that could be witness tampering. And it’s a very serious felony.

Bankman: Bob, there’s so much there. I think that just putting it all together is going to be a little bit tough. I’m going to try it here. And you tell me if I have this right. One type of liability is a kind of liability for what others do, but because you aided and abetted them.

And there, the government would have to prove not only some causal relationship, but a knowledge ahead of time that that was intended or known on behalf of Trump. And then the second big grounds of legal liabilities, obstructing justice, and there among other things we’d have to know, or probably have to know that Trump knew that his arguments were just baseless.

Weisberg: Yes.

Bankman: And then there’s a question of, as you averted to, of what does it mean with someone that like many politicians I should say might be in it for themselves and might be able to convince themselves of almost anything?

What does it mean to know that what you’re saying is baseless when frankly, a lot of what we hear politicians spout from the average person’s perspective, or maybe the experts might seem a little self-serving and baseless?

Weisberg: You’ve summarized things very, very well. And on that last point, one thing that could help the prosecution is that there apparently were so many conversations, very specific discussions between Trump and various assistants, some of whom were very sophisticated lawyers, virtually all of whom were saying there is no basis whatsoever.

Now that just shifts things a little, Joe. It makes it a little easier for the government because sure, even then we can say the politician is still just spouting things that make sense to him, but that separates it from speaking to the public in generalities, which are a puffery in a certain sense.

And then you get little bits and pieces of evidence. One can imagine if this ever went to trial, the fine parsing of some of these communications, only some of which we’ve heard, like for example, what we just heard the other night, where Trump is encouraged to say that he’s conceding, that Biden won the election and the votes have been certified.

And he specifically says, “No, I’m not going to say the phrase. I don’t like the business about Biden having won the election.” It’s just to say that sounds more cynical and instrumental and less either A, diluted or B, aimed at puffery with the public. It sounds like a very deliberate statement about what he’s planning at that point.

Ford: Wow, bob. So given that framing, it sounds to me like the January 6th hearings are setting up these legal claims relatively well. Of course, they’re not going into them in the level of detail that would have to happen in a criminal trial, but a lot of evidence is coming out that would seem to support the narrative that Trump is guilty of some of these criminal charges.

What do you think the likelihood is of an actual prosecution and/or conviction on any of these charges, given what you’ve seen in the hearings?

Weisberg: 

Well, first of all, there is the question of prosecution of others. And obviously there are lots of prosecutions going on for people at the capital. It’s true that the possible prosecution of others who are giving advice or goading Trump or whatever will run into the same problems as punishing Trump himself.

Although I just want to allow for the possibility that in a very subtle strategy, Garland could decide to go after the lower people and not go after Trump. He could be an unindicted co-conspirator.

On the whole though, I think it’s very unlikely or very uncertain whether there will be these criminal charges. Garland is a well, he’s either a very deliberate person or a very opaque person. I said the other day to somebody he makes Hamlet look decisive. Now that’s not fair because Hamlet turned out to be pretty decisive. He killed a couple of people.

But Garland has two ways of looking at this. First of all, you might just say conventional prosecutorial discretion, which he has. Second of all, as he himself alluded, he doesn’t want the criminal justice system to be worsening the political polarization in the United States.

And this is a prudential concern that’s especially specific to a president, ex-president or possible future president. So here’s a little twist. There’s a bit of non-illegal extortion that Trump could do.

If Trump were to announce he’s running in 2024, and he could do that in the next couple of months, it would be harder for Garland to charge him given Garland’s concern that he doesn’t want to be prosecuting somebody who’s one of the major competitors for the presidency. Last thing I’ll say is certainly the DOJ investigation is in theory and legal theory, totally independent of Congress.

It may be going on in ways that we just don’t know. Garland can accept information from Congress, but it’s his call. It’s not Congress’ call. On the other hand, there is an overwhelming likelihood that in a few months, we’re going to see an election of a majority of Republicans in Congress, in the house, for sure.

And they would take their seats just a month or two later. That doesn’t legally affect what Garland could do, but there were going to be so many Republican house oversight investigations of alleged bad things that the Biden people have done that the kind of political and moral effect of the January 6th hearings could get buried.

Ford: What about the obstruction of justice charges? Not the obstruction of certifying the electoral results, but obstruction of the January 6th condition itself. There’s been some talk about that being raised in part of the hearings. What’s your thought about that, Bob?

Weisberg: I think that’s more amorphous probably. For one thing, the active certification is a very formal, sacred action. Interference with that is serious. When Congress engages in these investigative hearings, it’s doing something it’s allowed to do and it’s a congressional function and you can be held in contempt if you don’t show up. See Steve Bannon and so on and so on.

But it’s a little harder to say what the interference with the function is when the function is sort of up for grabs in terms of how much of it is developing a case to hand to DOJ, how much of it is a matter of a kind of trying to achieve a kind of national cultural catharsis of Donald Trump, which as I think one way to look at it, not an illegitimate way.

Ford: We’ll be back with more from Robert Weisberg on the January 6th hearings and their implications from criminal law and William Shakespeare next on Stanford Legal, here on Sirius XM business radio channel 132.

Bankman: Welcome back to Stanford Legal. We’re talking with our colleague Bob Weisberg about the January 6th hearings. And we’re looking at the criminal liability that president Trump might face.

But in this section, we’re going to focus also on the political implications of those hearings. Bob, you’ve watched them all. A lot of us haven’t. I’d love to get your highlights of what you thought were just … Because it’s like a courtroom. What do you think were the courtroom highlights to you or legally or in terms of the jury that’s the American people?

Weisberg: One way to look at it is to ask what congressperson Cheney was trying to accomplish. She may be sacrificing her political career, at least in the short run. She is almost certainly going to be leaving Congress because she’s going to lose the primary in Wyoming.

She’s very, very intelligent. I think she knew what she was doing. Now maybe she didn’t want to be a Congress person with this Republican party much longer anyway, and she may have other ideas down the road, but I think she really had in mind a kind of moral and cultural purgation catharsis, call it what you will.

Sure, she wanted to end the political career of Donald Trump. But I think it goes beyond that. She wanted a national exposure of the degree of infamy and cynicism of things done where we already knew or had a sense of what the things were, but we didn’t have the full coloration.

We didn’t have the character portrayals. We didn’t have a full sense of the depth of moral infamy if you will. And whereas she might be criticized, I’m imputing a lot of agency to her. I think Benny Thompson, the chair of the committee did a very fine job on the whole, but she’s getting more attention.

They’re being accused of it being theatrical. And it is true. It was staged and orchestrated, with previews and announcements coming up next and so on and so on, particularly because they were able to draw on and sometimes actually show videos of testimony, which they had originally heard in secret.

So sure you could call it a show, but I think in that sense we could justify it or she could justify it as a public event of moral catharsis. And in that sense, she wasn’t trying to help the Democrats. She wants to do a reset.

She thinks there’s been a moral rot in her own party above all. I think that’s probably her main concern and she wants a reset of American politics, cleansed of the rot. And I think that’s what she wanted to do. And I think she significantly accomplished that.

Bankman: Bob, as someone who’s watched a lot of trials, can you give us a sense of what you thought were the most successful moments for Liz Cheney or maybe for Trump?

Weisberg: Well, first of all, the main problem with the analogy to the trial is that there was no cross examination. And that was a decision, I would say deliberate decision, although it has complicated roots in terms of Pelosi not allowing Republicans on the committee, unless they promised to behave in a certain way.

And that meant that they wouldn’t be, at least the form of … It still wouldn’t be a trial, but there wasn’t cross examination by adverse parties to what the majority plus Ms. Cheney was presenting. So I think that’s a shortcoming, but I think it’s clear that the most significant testimony was from this until the utterly obscure person named Cassidy Hutchinson.

In part because she was unbelievably without affect. I know that sounds paradoxical, but I don’t think it is. She came across with great credibility. And of course credibility is in some ways, a subjective notion from the point of view of the listener. She came across as authentic. One might say, “Well, sure she really practiced being authentic.”

Okay. But there’s something to be said for her success in that. And I think it came naturally to her because I can’t believe she had any practice in this sort of thing. The sober, bland, factual description of certain types of Trumpian behavior I think was probably the most significant thing.

Now, there was a challenge that a lot of what she reported was hearsay. Some of the Republicans didn’t understand hearsay too well. And they thought that things imputed to Trump would be hearsay, which they wouldn’t if he were imagined. There’s a party defendant here.

The lack of cross examination of course was a factor there, but there was some follow up in the hearing just after that, in which they produced some evidence of direct testimony or direct reports from people who, for example, observed Trump’s alleged behavior in the limo.

So they were careful to close that loop a little and show some corroboration later on, but they clearly didn’t feel any need to put on a case that would survive in an actual trial setting because that’s not what they were doing, but most effective witnesses are very non-dramatic and blandly factual.

Most good lawyers in trial cases are not the ones you see on TV with dramatic gestures and sarcastic eye rolls and things like that. Most good trial lawyers just go back to Dragnet. Just the facts, ma’am. Just the facts. And that was definitely the high point.

Ford: So Bob, you were saying that Liz Cheney’s motivations involve kind of trying to purge this moral rot from the Republican party, which would suggest first and foremost, that Donald Trump not become the nominee for the next presidential election.

What’s your sense of whether the January 6th hearings have persuaded either swing voters, independent voters, or Republicans who were kind of on the fence about Trump? Clearly they wouldn’t convince the hardcore Trump supporters, but those swing voters, whether it’s had an effect or whether they just see this as political theater?

Weisberg: I think it has had an effect. And it’s not just the swing voters who may turn against Trump. Depends on how you define the hardcore, the other group. They’re both hardcore lovers of Trump, but they’re also hardcore in their persona, which Trump imposed on them or almost molded them into as MAGA voters.

Which means their loyalty could be as much to the cause as to the man. And therefore they’d be willing to just disavow the man. I think that with all the roiling policy debates and hot button social issues that are dividing America right now, Supreme court and so on and so on, I actually think the hearings sort of are in a separate universe. And my guess is that they are not going to cause swing voters in Ohio, Florida, and all that to rethink the Biden agenda and rethink Trumpian policies.

I really think it’s going to be about Trump and I’m not suggesting that Cheney had a very, very clever instrumental plan to help the Republicans win in 24 by getting rid of Trump. I think she sincerely believed in the moral rot idea, but I think it’s entirely possible that the effect of January 6th, and I think we’re seeing it a little, is not so much a loss of faith, but simply a change in strategy among a lot of Republicans around the country.

We can’t afford this guy anymore. He’s even more embarrassing than we can tolerate. Therefore we can keep doing what we’re doing. We can keep endorsing all the MAGA policies. We just need a new figurehead. And that’s why I think, and this is hardly an original insight on my part, the major beneficiary of the January 6th hearings is Ron DeSantis because he has coming out of total obscurity, turned himself into the alternative to Trump who can appeal to MAGA of voters, who has inserted himself into every cultural war issue, but who was intelligent and disciplined and doesn’t have the baggage, if you will.

Bankman: Wow. Bob, that’s such an interesting cultural critique and you’re a former English professor in another life. And the first part of the question is as a novel, would this be a good novel? Would it be believable to read a novel like this, about what happened in America?

Weisberg: You could even construct this as a Shakespearean tragedy or possibly one of those not quite tragedies, not quite comedies from Shakespeare. The so-called problem comedies like Troilus and Cressida or Measure For Measure. But most of Shakespeare’s great plays were after all about failed royalty or failed autocrats or leaders.

I think it has both the rise and the downfall and the self-destructiveness of the downfall have great literary value. Plus of course, the endless supply of fascinating secondary and tertiary characters. So yes, I think it’s natural in that regard.

Bankman: One follow up question. Thankfully, Bob is suppose counterfactually Trump is not discouraged from going to the capital by the secret service. He gets to the capital. He sees people enter it. This is kind of a as someone dramatically knowing the character Trump and what we know about him, what would you have predicted the actions might have been? What are the range of things that might have happened?

Weisberg: Boy, that’s a fascinating question. I’ll take a guess that he would’ve run away. And that’s why, in some ways, it was bad for him that he didn’t get that close. Not because he would’ve done something terrible, but because had he gotten there, he would’ve looked kind of wimpy, whereas he looked more frightening not having been there, been at some distance.

Also then it would’ve probably turned if we can play out the Shakespearean thing a bit more, it would’ve turned a tragedy into a problem comedy to a plain old comedy at that point, if he had just wimped out.

And by the way, although I don’t think he’s capable of this kind of athletic achievement, just analogize this to the wonderful meme we’ve been seeing in the last few days with the courageous Senator Hawley running away.

Ford: Thanks to our colleague, Bob Weisberg. I’m Rich Ford for Joe Bankman and this is Stanford Legal on Sirius XM business radio channel 132. And remember, you can listen to this and other episodes anytime on demand on the Sirius XM app or wherever you get your podcasts.