Lies, Politics and Democracy: J. Michael Luttig (interview) — FRONTLINE

[0:00] I mostly want to talk to you about 2020 and what you saw, what concerned you and your role. But [0:07] first, was there anything that was concerning to you about American democracy before 2020, [0:15] before we get to the campaign, before we get to the election? Yes, although I didn't frame it [0:26] in that way at all. I had been concerned about our democracy, American democracy, [0:42] beginning during the primaries in 2016, because I saw what everyone else saw, [0:53] which was at that point the bombast and the language, if you will, of politics that represented [1:11] to me an assault on American democracy. Which parts of that, which parts of what you were hearing [1:22] were the things that were really, that really stood out to you? Well, you know, we're talking, [1:28] I'm talking now about the Republican primary. It started off with 14 or 15, you know, candidates. [1:36] And you can recall those primary debates and then the campaigning during the primary itself. [1:49] And the politicians, who I believe are at the root of all evil, you know, they were beginning to talk [2:08] the language of assault and attack on America herself and the institutions of American democracy. [2:24] democracy, which I consider to be the Congress of the United States, the executive office of the presidency, [2:36] and the federal judiciary. And those words sounded to me in assault or attack on democracy itself. [2:52] And then, of course, much later. Well, no, actually, now that I think of it, during the primaries, [3:05] the moderator asked of the candidates in one primary debate whether they would accept the results of an election. [3:17] And I don't remember how many, if any more than Donald Trump said that they would not necessarily accept [3:30] the results of the election. And, you know, to me, as it was, I think to many people, [3:38] was a stunning answer to that question. I think probably because I, you know, am a lawyer and a judge, [3:52] I heard that response even differently than most people who were concerned about it. [3:59] And I mean, during that period, you were a judge and stayed out of politics. And presumably, you know, [4:12] when you're hearing something like that, at that point, you must have a question of, you know, [4:17] what do you do? How are, how are the politicians going to respond? Are you talking to, to any of them [4:23] at that point to leaders inside the party or expressing your concerns? Well, I'm, I'm, I was [4:32] actually not a judge on the bench at that point. I had, I had gone off into the private sector. And [4:44] I've never, to my knowledge, uttered publicly a partisan word or thought. And [4:57] so back at the time, I would have been expressing this view, almost exclusively, probably to my wife, [5:10] who, my wife of 40 years, with whom I, you know, share everything. But I was profoundly concerned, [5:27] even during the primaries, about the, the direction that the Republican Party [5:37] seemed to be taking the country, though unwittingly. [5:43] What do you, what do you mean by that, by the Republican Party? [5:47] I don't think that, I don't think that, the, any of the candidates, [5:52] let alone the entire party, let alone the nation, had any, any concept that the primary, the Republican [6:08] primary could lead to what it has led to today. And that's not to be critical of, of, of the public at all. [6:21] I, I'm not one who believes that the, the public has any responsibility to understand and appreciate [6:32] all of the, the nuance and all of the processes that, that underlay our, our democratic system of government. [6:45] I believe that that's the responsibility of, of our elected representatives. [6:50] Now, as I hear myself say that, you know, I, I was, I was profoundly critical of our political leaders. [6:59] Uh, so for instance, I, I was, uh, uh, I was actually angry that, that, that, that in my view, [7:12] not one single, uh, leader in America, um, uh, who had the, the, the moral authority, um, the, uh, [7:26] the, uh, the courage and the will to, uh, speak up and, and, and, and say, this has to stop, did so. [7:40] Now, uh, I, I, I, I put particular emphasis on, you know, on, on the, the word moral authority, [7:49] by which I mean the moral authority to reach across the aisle, uh, to, to, uh, uh, American citizens of, [7:58] of all political stripes and be, uh, heard and, and listened to. Uh, I say that because, uh, [8:11] you know, I don't believe that there, that there's any such, uh, political person or leader in, [8:19] in America today. And I, I didn't think there was back in 2016. [8:24] As you watch the, the Trump presidency and watch it take place, did it, uh, confirm [8:32] fears that you had going back to 2016? What did you see in that period between 2017 leading up to, [8:40] to 2020? Um, what, what I saw was a straight line from the, from the Republican primaries, uh, uh, [8:50] to and through, uh, the, uh, the Trump administration straight through to January 6th and continuing until [9:02] this moment. And did you see a continuing role for the, the Republican party in that period? [9:08] I mean, how, how are you evaluating how, how the party leaders were responding during the presidency? [9:14] I mean, we talked to a lot of people back in 2016 and a lot of them said that they went along because [9:18] they thought he wasn't going to win, um, and that there wasn't a harm, um, and that would come from [9:24] it. And, and by 2017, he is the president. Um, as you're going towards, as you say, on a trajectory [9:31] towards January 6th, um, what, how did you evaluate the response of the country's leaders, [9:37] other leaders besides the president during, through that period? You know, to the person, [9:43] I, I, I didn't, I, I thought that the, the political response by our leaders was abysmal [9:49] and inexcusable. And, and, uh, of course I'm, I'm familiar with, with, with what you say that, [9:59] uh, then, and, and, and even now, uh, there are whispers, um, everywhere that the politicians [10:15] wish they had not, you know, performed their public office and service in the way that they did. [10:23] But to this day, they are still just whispers. Um, now was I, uh, did I become disenchanted and [10:34] disillusioned with our political leaders? No, because that's exactly what I would have expected [10:40] of them. The argument that some of them make, um, that may be more, more personal to you is they say [10:48] there was flaws with, with Donald Trump, but, uh, you know, the threat of a Clinton presidency, [10:55] but particular judges and the Supreme court nominations. And, you know, that the, that there [11:01] was a trade-off that was made and, and it was almost an explicit trade-off for some, [11:06] for somebody like a, a Mitch McConnell. What, how do you evaluate that balancing? [11:10] Of course, the, the, this is a subject I'm intimately familiar with, uh, and, and, and the way I, I, [11:20] I evaluate it, uh, as to the, as to the politicians is, is in this way. The, uh, I understand and appreciate [11:33] very well, uh, uh, the, the, the focus on the judiciary and, and ultimately on the Supreme court. [11:42] That was a war that had been, uh, uh, going on, uh, in the country and, uh, between and among the [11:51] politicians for, uh, literally half a century. Uh, and, and as that unfolded across that half a century, [12:00] uh, the whole country and all of the politicians knew exactly what was going on at every moment, [12:08] up to and including the, the, the, the last three, uh, appointments and confirmations, uh, to the Supreme [12:17] court, uh, leading, uh, up to, uh, the victory for the Republicans and the conservatives, uh, in the war for [12:30] the court. Now I understand that, but in, uh, against the larger backdrop of, of, of all of politics [12:41] and the Trump administration, uh, I, I, I don't excuse their larger and other behavior, uh, [12:55] because of their insistence upon their, their, their, you know, different positions about the [13:02] judiciary and the court. That was really just a single issue, political issue, and not even, [13:11] uh, the political issue of, of the greatest import, uh, to the nation or the country. So, [13:19] uh, to the politicians who say, well, look, we, we did this in the name of, of the Supreme court. I say, [13:27] you know, fine, uh, that doesn't excuse your, uh, abysmal public service. [13:37] As you watch the, watch the first impeachment, what, what do you take from, from that, from the [13:47] moment, from the result, from what President Trump at the time seems to take from, uh, from being [13:56] acquitted and what it said about whether there were checks on him? [13:59] Well, without regard to, to, to, um, former President Trump's view or any other political figure, [14:10] uh, uh, uh, for that matter, uh, the impeachment is, is a, uh, a constitutionally, constitutional [14:17] process that's provided for by the constitution itself. Uh, and, and that's not a, a legal process. [14:26] It is by design of, of the constitution, a political process. It's for that reason that, [14:33] that, uh, that, uh, a president or any other official subject to impeachment, uh, you know, [14:41] can be impeached for, uh, conduct or behavior, uh, that does not entail criminal, uh, violation of the law [14:49] at all. It's to say even that impeachment is available for, uh, even purely political offenses, [15:02] uh, uh, to the nation, uh, as determined by the politicians themselves. So, uh, uh, uh, [15:12] now during the, the first and the second impeachment, uh, I, I was greatly interested in the, [15:20] the impeachment, uh, not just as a constitutional and, uh, matter, though that was the preponderance of [15:30] my interest, but I was also interested in, in, as a, as the political process as well. But, uh, [15:38] but I've never done politics and, and don't, don't care to. So, uh, I know that's just to say that I [15:45] understand all the issues, the political issues surrounding it. And, and I have a view on, on the, [15:51] uh, uh, uh, I wouldn't say the appropriateness of, of, uh, of, uh, of the impeachment. Um, but neither [15:59] would I, uh, say that the legal, uh, appropriateness of it. Uh, I have a view on whether as a political [16:08] matter, uh, the Democrats, uh, you know, should or should not have attempted the impeachment. [16:16] What, I mean, what is, what is your view on whether they should have? [16:21] Well, my political views, neither here nor there, uh, and, and I don't really care to give it to you. [16:30] I mean, but there is a larger question about it, which is in a, which is about whether the [16:36] constitutional checks function in a highly polarized, uh, government in a highly polarized society, [16:44] you know, do the, do the, do the, do the, these institutions that the founders put into the [16:51] constitution work if you have, you know, not, uh, three separate branches of government, but really [16:59] two parties, um, that are polarized, that, that are united. I mean, did you, did you sense any feeling [17:06] of stress on those constitutional checks in that process? No, no, zero. Uh, in my view, the, [17:19] the constitutional process functioned throughout the entire Trump administration, uh, despite the [17:30] pressure that was put on that, that, uh, constitutional process, uh, by the president, uh, at many points [17:40] deliberately, uh, and, and intentionally, but as to the, as to the impeachment process, uh, that was a, uh, [17:51] was really a, a, a perfect, uh, functioning of, of the impeachment process under the constitution. [18:01] So as we get to 2020 in the, this is in the run-up to the election period, um, what are you seeing [18:09] that, that is concerning you? Of course, in, in, in the run-up, you know, uh, you know, uh, defined to be, [18:21] let's say, uh, the fall, uh, the fall, uh, leading up to, to the November election, um, you know, [18:29] that's when, uh, the former president began to, uh, to suggest, if not more, that, uh, he, he was not [18:40] prepared to willingly leave, leave the White House, worried, worried to lose the election. Uh, that's, [18:47] and that's the period in which, um, you know, some of, some, uh, some journalists begin to, [18:54] to write lengthier pieces about just that. Uh, and, and I, I was reading those pieces, [19:03] uh, you know, because that, that becomes a constitutional legal matter that, that, that is [19:09] of great, great interest to me and has been my whole life. It was around that time that my wife, [19:15] um, uh, who by the way is also a lawyer, uh, and has worked in the White House previously, [19:23] um, she said, she began to say to me that, that she didn't think that, that, uh, the former president [19:31] would leave the White House if he were to lose the election. And, uh, uh, in the early weeks and, [19:38] and months when she was, was saying that, I was dismissing it, saying that, uh, I, that's just not [19:45] really a possibility, uh, and, and, uh, it's not an option to a, to a president who loses the election [19:54] to remain in the White House. Um, and, uh, about that time, to, to her credit, you know, some [20:04] very respected journalists were writing longer pieces, uh, and asking me for comment, frankly, [20:12] uh, as to what would happen if the president didn't leave, leave the White House. Um, and so [20:21] that moved my own thinking to the next, next phase. Uh, and then the, the third phase was, uh, I would [20:30] pin around, uh, uh, several weeks before the election, uh, when the president, uh, you know, [20:38] came full, full, full, full circle to, to his, what was going to be his final position, that he would, [20:45] uh, he would challenge the election no matter what, if he were to lose. At that point, my wife, [20:52] you know, came to me again and said, um, you know, as wives are wont to do, uh, I told you so. And, uh, [21:05] and, and as husbands are not wont to do, I said at that point, I think you might be right. Um, [21:15] and, uh, and I said to her, if you're right, that we will be facing a, a grave constitutional crisis. [21:27] Uh, during that time though, I, uh, uh, I, I would never go on the record as saying that ever, [21:37] but I was being asked by, uh, many journalists and reporters in the media, uh, to say that we were [21:46] in a constitutional crisis. And I, I did not believe even at that point that we were in a [21:52] constitutional crisis. And I, and I refused to tell, tell the country through the reporters [22:00] that, that I believe that we were. [22:01] And the response that you were seeing to what the president was saying, what you were doing, [22:09] what you were learning as you were researching and reading about, you know, the process of how [22:14] the president is, um, confirmed after the election. Um, and what do you think of the response of, [22:21] especially Republican leaders, but of everybody else who's, who's watching this? Um, do they seem to [22:28] share your concern? [22:28] Yes. I, I was not reading or studying, um, the constitution or the laws. I, I knew that, [22:37] uh, I, I was studying the, the public reaction, uh, of, of, of not, not just the public writ large, [22:47] but in particular our elected officials. And, uh, uh, they're, uh, uh, what I, what I witnessed, [22:58] I believed, uh, was failed leadership, uh, in the form of, uh, uh, knowing acquiescence in, in, uh, [23:10] what was about to happen, reprehensible acquiescence. [23:17] And then it comes to the moment in the early hours after the election, [23:25] and the president comes out, you've been concerned about this already. And the president [23:29] comes out and says, frankly, I did win this election. The county is, is not done at that [23:35] point. Um, what, what are you thinking as you're, as you're watching that? [23:42] I, I, I thought the moment had arrived, the, the moment that would, um, bring us into [23:51] a constitutional crisis for what I believe, believe then would have been the first constitutional crisis [24:01] in American history. Uh, so I, maybe a word of explanation. Um, I, I, I don't believe that, [24:11] that, that, that the country's ever in a constitutional crisis, uh, on, unless and until, [24:20] uh, we are confronting circumstances that are, that were never contemplated by the Constitution. [24:30] Uh, that view leads me to the conclusion that, uh, that we're never in a constitutional crisis, [24:40] uh, unless or until, uh, uh, the, uh, the attack on, on America and her democracy is from within, [24:51] not from without. Uh, I believe that, that, that the Constitution, uh, provides the, the process and the [25:02] mechanisms by which we can withstand, uh, uh, any attack or assault on our country or our democracy [25:12] from without. But I believe that the Constitution never contemplated, and therefore didn't ever [25:21] provide, uh, for, for process and, and mechanisms, uh, uh, to withstand, uh, an, an attack on, on America [25:32] and her democratic processes from within. And that's what I believed was happening at that point. [25:43] I want to just ask you about a couple of stops along the way and responses people had to that moment, [25:49] um, and see where you think that they, that they fit in, into this. And one of them is that, [25:55] you know, the president comes out and says this, and it's Don Jr. and Alex Jones and some others are [26:00] pushing the conspiracy theories. But, um, by the end of the week, there are some senior [26:07] Republicans, um, who, if they're not, uh, saying the election was a hundred percent stolen are raising [26:13] questions, um, about the election, um, by that weekend. What did, how do you evaluate the, those [26:23] responses from, um, Republican leaders as they were coming out and saying, you know, [26:29] there, it seems like there was fraud here. We need to be fighting on this. [26:33] The, the, uh, statements from, from political leaders, merely that there are, there, there, [26:44] there was, or, or might've been fraud in an election, uh, is, is contemplated in the constitution [26:52] and, and, and eventually in the statutes of the United States through, through the likes of the, uh, [26:58] electoral count act of 1887. Uh, and, and so, uh, those words, you know, um, alone are not offensive [27:13] words. Now in, in 2020, you know, for me, it was the specific claims of fraud that were problematic. [27:28] Uh, the conspiracy theories, if you will. Uh, they didn't even, uh, uh, uh, they, they didn't even [27:40] sound plausible or colorable to me, just as they didn't sound plausible or colorable to many people. [27:47] Uh, they were, this was wacky stuff, right? Uh, that, you know, foreign, foreign powers had [28:00] infiltrated the, the process down to the individual voting machines and, and, and the like. [28:08] Uh, uh, that's the stuff of science fiction, uh, to me. Uh, could it, could that happen [28:18] in today's world? Yes. But I wasn't willing to believe it for a second, uh, uh, during the 2020 [28:26] election. Uh, I had, uh, of course we all knew at that point that, that, uh, Donald Trump had received, [28:38] I believe, and you can correct me if I'm wrong, the, the largest number of, of, of votes in the country [28:46] of, uh, not only any, uh, Republican president to that date, but I think any president, uh, of either [28:59] party to that date due to the, the turnout in the 2020 election, of course, which was massive. [29:08] It turned out that, that, uh, now president Biden did receive a greater number of votes than, than, [29:16] than, than Trump did. And I believe than any other president, uh, has ever, uh, garnered in, in, [29:25] in history. But, uh, again, this is, uh, I'm, I'm out of my depth, but, but, but, uh, directionally, [29:33] that's the way I saw the, the election. Uh, and so I thought that was enough for me to, um, believe [29:44] that, uh, that, that Trump had, had lost the election. And so these, these, these far-fetched [29:51] claims by, uh, Sidney Powell and, and, uh, and Giuliani, uh, to say the least, did not resonate [30:03] with me. I mean, when you watch those moments, the Four Seasons Total Landscaping, the press [30:09] conference at the Republican National Committee, where Giuliani has the, the hair dye running down, [30:14] and the, as you say, conspiracy theories about the election. I mean, what are you thinking as [30:18] you're watching that? Is that, um, concerning to you? Is it reassuring? Because they seem, [30:26] you know, it almost seemed like a joke, uh, to some people at the time. What, what were you thinking [30:31] as you were watching that? Well, instances like that one, and including that one, I, were, were [30:38] farcical. They, they were, the, they were comedy to me, uh, though tragic comedy. Uh, but, uh, uh, [30:51] there were many such moments and many such claims. Uh, again, against my, uh, worldview of politics and [31:02] politicians, uh, it was amusing at first, uh, and then, uh, gradually over a relatively short period of [31:14] time became, um, disturbing, uh, as I believed we were nearing that, that moment of constitutional [31:26] crisis that in fact occurred. I mean, it does seem like, as we've talked to people, [31:32] that there's really two periods, and there's a period of court cases and up to the Electoral College, [31:38] and then there's a period after, um, the Electoral College has voted in the middle, [31:43] in the middle of December. And what, one of the questions I want to, like, maybe the last question [31:47] I want to ask you about in that first period, um, is, is there was, as we've talked to, to people, [31:53] there was a faith amongst a lot of Republicans that there wasn't too much harm that could be done, [31:59] that the court system was going to take care of the claims that, you know, somebody like Mitch [32:05] McConnell made a decision that he would, he would, um, recognize Joe Biden's election after the [32:12] Electoral College certified in the middle of December, and that there was no real harm in [32:15] waiting, uh, to do that. There was no real harm in waiting to speak up against the claims of fraud [32:22] during that period, because the system was strong enough to, uh, to handle it. What do you, what do [32:28] you think of that argument of that position of, of those who didn't believe the claims, but who felt, [32:34] we'll just let the system play out? Well, of course, it should be apparent by now. I don't think much [32:40] of it at all. Uh, uh, uh, that's exactly what politicians do every day, all the time. They wait, [32:51] and they wait before they ever take a position, uh, of any import to, to the country, and they wait [33:04] until they no longer have to. And then they figure out what they need to say in the aftermath, uh, to, uh, [33:17] protect themselves from their failures earlier to speak out. Now, as to the, the, uh, to that view [33:27] of, of, I'm sure, many, actually of everyone, because of course the, the president, uh, resorted [33:36] to the courts himself, as well as other Republicans who were not, do not consider themselves supporters [33:45] of the former president. And so all of the Republicans, and then of course, by necessity, [33:52] the Democrats, uh, turned to the courts. They were more than happy to do that. It, it meant they didn't [34:00] have to, for the moment, it meant they didn't have to ever make any decisions. That's failed leadership, [34:08] but that's, that's what happens every day. So yes, they waited on the court. Now, the, uh, the, [34:18] the, the tragedy, the political tragedy in this instance was that the politicians understood [34:27] what was at issue in, in the, the federal courts. They understood that the federal courts were, were [34:34] being called upon to decide some of the most momentous constitutional issues, uh, possible, uh, in the [34:45] context of that two or three month, uh, litigation of the, the election cases. In, in, in particular, [34:56] what I'm focusing on and talking about is, um, the, uh, what's known as the independent state legislature [35:06] theory. That theory is a theory of constitutional law, uh, that has been embraced, uh, seemingly embraced now [35:19] by, uh, by at least seven Supreme Court justices, including three who are no long, two who are no [35:28] longer on, on the Supreme Court. And the, the, the predicate, the, the foundation of these, uh, [35:38] constitutional challenges to the election, uh, what was, they, was built around the independent [35:46] state lecture legislature doctrine or theory. And the Republicans in particular had reason to believe [35:55] after, uh, Justice Barrett was, was, was confirmed to the court that there were five votes on the [36:03] Supreme Court to embrace that independent state legislature theory, making it a, a constitutional [36:12] doctrine. Now, what, what would that have meant? Uh, under the theory, under what's known as the [36:22] electors clause of the constitution, uh, the state legislatures have what's known as plenary and, [36:33] under the theory, exclusive authority over the appointment of state electors who vote as part of the, [36:43] uh, uh, uh, uh, electoral college, send those votes to the Congress to be counted to determine, uh, who [36:53] the next president of the United States is. The significance, the momentous significance of, of this [37:02] theory, if, if, if embraced by the Supreme Court would be that the legislatures could never be second [37:12] guessed by, in particular, the state Supreme Courts. So if the legislate, in, in this context in 2020, [37:21] if the legislatures wanted to send in, uh, alternative electoral slates to the official electoral slates, [37:30] uh, that had been sent in under, under, under the laws of that states, of the states, they could do so [37:40] and it could not be second guessed by either the state Supreme Courts or eventually even the federal [37:49] courts. Uh, and the state legislature theory applies, uh, both to the electors, state electors [37:59] for the purposes of electing the president and vice president of the United States, but also to, uh, [38:06] congressional redistricting in, in every state. Uh, I, I, I go so far in that explanation, uh, so that I can say [38:17] that, uh, right now in 2022, literally in the past week or two, uh, the, the various parties in, uh, a [38:30] redistricting case out of North Carolina have filed their briefs in the United States Supreme Court, [38:39] uh, variously asking the Supreme Court to, uh, either, uh, embrace the independent state legislature [38:46] doctrine or reject it. And on this Supreme Court, as of, um, well, I, I think, I, I think fair to say [38:58] as of only a few months ago, when the, when the Supreme Court, uh, denied cert, denied, denied an [39:08] emergency, uh, application of the parties to decide this case, uh, there, there are four justices on [39:17] the current court who have expressed an interest in, in deciding the independent state legislature [39:23] doctrine theory, uh, and even gone so far as to say, uh, this is a, a, a matter of, of great national [39:33] importance that we, the Supreme Court must decide before the 2024 election. And, and four being enough [39:42] to bring it to the, to the court. For being enough to, to bring the case before the Supreme Court for, [39:48] for decision, but not, not the requisite votes to uphold, you know, uh, the, the, the doctrine [39:58] that takes five. [39:59] And, and as you evaluate, evaluated that argument, um, where did you land? [40:09] At the time that I, I, I did my, uh, last writing, which was the CNN piece, uh, which I, I titled the [40:17] Republican blueprint to steal the 2024 election. Uh, I, I had not done the, the research and the [40:28] thinking that, that, that would be necessary for me to come to a conclusion on that, uh, on that [40:36] historic, uh, question, uh, since the publication of the CNN piece, uh, you know, I've been, I've been [40:44] asked by, uh, seemingly everyone on, on both sides of the issues, um, to, uh, join them in various, uh, [40:56] amicus and other briefs before the Supreme Court on the issue. Uh, and, and so as I sit here today, [41:03] I haven't, I haven't come to a conclusion on, uh, on my view of, of the constitutionality [41:10] of that theory. [41:11] But even if it is constitutional, I mean, at its heart, what the theory means [41:18] is even if the majority of the population, uh, majority of voters voted for the electoral slate [41:27] of, of one candidate that the legislature, uh, could overturn it. I mean, what are the implications [41:34] of adopting that if that is, even if it is actually constitutional and that's, that's what the law [41:39] should be? What, what are the implications, um, or the implications of the political choice of a [41:44] legislature to decide to exercise that power? [41:46] Well, I, I, I, of course we'll leave, leave to others the, the political implications and consequences [41:54] of that, though I, I think we can stipulate that, that, that the political consequences [42:03] for, for the politicians is enormous politically. Um, but what I, what I, what I won't hesitate to say [42:12] is that, that, uh, that, uh, the, the implications and consequences for the Supreme Court's, uh, embrace [42:19] of, of the independent state legislature theory are, uh, immensely consequential, uh, for, uh, for democracy, [42:30] uh, in America. And, and, and maybe that's, that's the point at which I should, I should say, [42:36] um, you know, um, you know, we, we, we are, we are talking about American democracy. There, there's no, [42:47] there's, there's no, uh, uh, subject of higher importance than, than, than, than that in America. [42:57] And, and so we, we need to understand what we're talking about when we, when we throw around the term [43:05] American democracy. Uh, the, the, the, the dictionary definition of, of, of, of, of, of democracy [43:14] and therefore of American democracy would, would be something like this. Uh, democracy is a, a system [43:22] of, of government and, and, and governance by which the, uh, the, the, the rules of government, [43:33] of governance and the, and, and the policy of, uh, the citizens. That is the will of the people [43:47] is expressed through the, uh, elected representatives of the people. That would be a, a textbook definition [43:56] of, of democracy. Uh, and a, for sure, I, you can understand that, that what we are talking about [44:11] when we are talking about the electoral process, processes, uh, in the United States is, is, would [44:20] be fairly considered the, the core of, of, of the democracy and of the democratic process, uh, in the [44:30] United States of America. Now, uh, I, I personally distinguish, you know, uh, all of these, these relevant [44:40] terms in this way that that's what I consider to be American democracy, uh, itself. Uh, then, uh, I [44:50] think that you have to, I distinguish, uh, uh, out of American democracy as a whole, uh, the, the, the subset [44:59] of, uh, the institutions of democracy, uh, that, that the constitution created to protect and preserve [45:10] that democracy. And, and, and, and that would be, uh, uh, uh, the Congress of the United States, [45:17] the executive office of the president and the presidency, uh, and the federal judiciary and the [45:23] Supreme Court. Those are what I think of as the institutions of, of our democracy. And then, uh, uh, [45:32] I, I think of, uh, the constitutional processes that secure our democracy and the, and the core [45:44] corresponding, uh, uh, laws of the United States that, uh, protect and further our, uh, our democracy [45:53] as instruments or instrumentalities of our democracy. Uh, and, and so, uh, in my view, uh, I'll say [46:08] for the moment over the past six years, uh, the, there has been, uh, an unprecedented attack [46:19] and assault, not only on American democracy, but also on the institution, institutions of our [46:30] democracy, but also on the instrumentation, instrumentalities or instruments of that democracy. [46:39] Uh, that's why I, I'm of the view, uh, that we're in a constitutional crisis because, [46:46] uh, those three assaults or attacks, if you will, on those three organs of, of, of, of, of American [46:57] democracy, uh, have, have occurred from within, not from without. In other words, I think we are right [47:10] now in, in, in, in, in a war, uh, with each other. We're not in a, a, a war against a foreign power. Uh, [47:22] we're in a war, uh, with each other. Uh, and it's a, it's a, it's an immoral war over morality, uh, in, in America. [47:39] And, uh, this is a war that, uh, America cannot win. This is one war that America can never win. [47:51] That's a very useful explanation of the, of where we are in the big picture of all this, [47:56] because I think we do sometimes get lost in the details or the legal claims inside it, um, what's [48:01] going on. And, and, and, and, and, and, and I don't believe that the public, uh, has a responsibility [48:09] at all to understand any of this. The responsibility, you know, rests with our [48:16] public, uh, and, and, uh, officials, our elected representatives, and that's where the blame lies, [48:24] uh, for, for the, for the, for their failure to preserve and protect, uh, our, our country's democracy. [48:32] So as we get to this period where the cases have been dismissed, the electoral college has voted, [48:41] and, and they're starting to be, this is before you get a phone call, um, uh, from the vice [48:45] president's attorney. But, but in that period, there's starting to be talk about January 6th. [48:51] Um, they're starting to be talk about the electoral college. Um, are you growing, [48:55] are you growing more concerned in this period? [48:57] Yes, without, without any question, but not just concerned. I was, I was gravely concerned. [49:07] Why? [49:10] Because I, I was beginning to, to, to see and witness, uh, the, uh, uh, deliberate, um, course, [49:29] uh, that would lead to, um, the crisis that, that occurred. There was, I could under, I could [49:37] understand, uh, just as a lawyer, I could under, I understood all of the pieces, uh, [49:47] and I could understand how they interlocked, and I could understand at those later, in those later [49:57] weeks, how they were going to interlock into what, you know, you might tritely call a perfect storm, [50:10] uh, that, that would, uh, that would lead the country into the constitutional crisis. [50:16] Uh, you know, I had, I, I have a, a very, uh, well, well-informed, uh, and well-considered [50:24] view at, at this point in my life of, of the institutions of democracy, uh, and, uh, uh, of [50:34] American democracy, the institutions of democracy, and even now the, the instruments and instrumentalities [50:41] of, of democracy that I described. [50:44] And those interlocking pieces that you see where it's headed, and you say a constitutional crisis, [50:49] but what was the goal of those pieces? What was the goal of those operating [50:56] around the president, um, as they were putting those pieces together? [51:02] I, I, I, I didn't have any idea, I didn't have any idea of, of the precise goal [51:11] in, in the lead up to the election itself. It was not until, uh, uh, after January 6th, [51:18] and then even so after, uh, the memos and emails and conversations [51:26] became, uh, public, uh, began to become public, uh, so that I could, uh, analyze them, if you will, [51:37] and understand exactly what the, the, the plan was. I, I suspected the plan, and I understood what, [51:52] what, what, what they were doing very well. I didn't want to believe that there was anyone [52:04] behind it, uh, who was knowledgeable enough, uh, intelligent enough, uh, to execute, execute the [52:16] plan successfully. And I didn't think there was any such persons, uh, you know, until long [52:22] after January 6th. And, and, and, and, and, and to complete the thought now, now, uh, I think we [52:29] all know that there were, uh, such, such people and they were in fact, they were in fact executing [52:38] the plan that, that, that, that we all saw. I just want to be really clear about what that plan was. [52:44] I mean, was that plan to raise questions about the future elections and change voting laws? Or [52:51] would, did that plan have a more concrete goal of what they wanted to accomplish on January 6th [52:58] and in the run-up to January 20th? No, it was not, it was not about the future at all. It was about [53:04] the, the, the immediate, the moment. The, the plan was to overturn the election through the exploitation [53:14] of, of, of, of the, uh, of what I've called the institutions of democracy and the instruments and [53:23] instrumentalities of our democracy. There's, and we know now there's no question about it. They knew [53:29] exactly what they were doing and they believed it. They believed, uh, in the rightness of that, [53:38] at least legally and constitutionally. Uh, whether they believed in it, um, whether they believed it [53:52] writ large was right, uh, I'll, I'll leave for someone else to, to, uh, assess. [53:59] I want to ask you about, um, how you get involved in Pence. But first, one thing I forgot to ask you [54:05] about earlier, which was, um, Bill Barr, um, you know, we've talked about people who didn't say [54:10] anything. Um, and he, you know, as we know planted, didn't just plant, said on the record to the [54:17] Associated Press, um, said to the president that there was no fraud allegations. Um, I know you know [54:24] Barr and you were at least watching that happen as it was publicly announced. Um, what, what was the [54:30] signal that was sent when that report came out that the Justice Department had looked into it and that [54:35] Barr was going on the record, um, on the fraud allegations? Well, Bill Barr, the then Attorney [54:44] General, is a long time friend of mine. Uh, in fact, uh, well, two, two things. Bill and I went into [54:55] the Department of Justice together in 1989. He is Assistant Attorney General for the Office of Legal [55:02] Counsel. Uh, and then, um, you know, he, uh, prevailed upon me to come in as his deputy. And, [55:11] uh, you know, long story short, I, I, I agreed. So, um, Bill and I went into the Department of Justice, [55:19] uh, in the George H. W. Bush administration. Uh, and, uh, we were at the department, uh, under the [55:26] leadership of, uh, then Attorney General Dick Thornburg from Pennsylvania. So, uh, so then fast [55:33] forward, um, you know, as has been publicly reported, uh, Bill and I were both under consideration, [55:42] uh, to, uh, uh, succeed Sessions as Trump's Attorney General. And then, of course, the President [55:50] uh, eventually called, called Bill. So, well, that's, that's a long way to, to, to, to bring me [56:00] to your question. Uh, uh, uh, I, I knew Bill well. Uh, and, uh, the day that he first publicly said [56:13] that there was not, not, uh, there's insufficient evidence of fraud nationwide to call into question [56:20] the, the, the, the final electoral, uh, elect popular vote, uh, uh, of, of, of the people for, [56:29] for President Biden. Um, I, I knew at that point, I, I hadn't thought a bit about this until right now, [56:41] but that's the moment at which I knew that we were, uh, uh, we were, we were heading into the [56:49] constitutional crisis. Why? Because, uh, I knew all too well what the, the, the former President's [56:57] reaction would be to that. Um, and knowing Bill, I knew what his reaction would be to it. And so, um, [57:07] I, I appreciated that, uh, that was the defining moment and that it would be the defining moment. [57:17] And, and, and, uh, and it was. I mean, not long after the election, the Secretary of Defense, [57:25] uh, is pushed out. Um, Bill Barr resigns, um, before Christmas. I mean, how concerned just watching [57:35] that and knowing Bill Barr is not the Attorney General as we're going into January 6th. Um, [57:41] how concerning was that for you? Uh, enormously concerning. Um, you know, Bill's successor was to [57:56] be Bill's deputy, Jeff Rosen, uh, uh, who, who I knew of, but did not, did not know personally. [58:05] But I knew that, that Jeff Rosen, uh, could not possibly stand his ground against Donald Trump. [58:19] By the same token, I, I understood well that if there was one person who could, it was Bill Barr. [58:28] Uh, and he did. And, uh, he, his, uh, penalty, uh, or his sentence was exactly what he would have [58:43] expected and the country would have expected. He was fired. Uh, but to your question, I, I became [58:53] increasingly worried if that was even possible. Once Bill left, knowing that in my view, [59:05] there was no one left who, who, who could stand against, um, Donald Trump or, or who would stand [59:16] against Donald Trump. So at that point, at that point, I was, um, utterly convinced that we were, [59:26] we were heading to, to January 6th. Um, and, uh, so at that point, uh, again, I, I don't even have a job [59:38] at that point. I've been out of, uh, uh, uh, public service in the public sector for 15, 16, 17 years. [59:47] And for the 15 years before that, I was a sitting federal judge. So I, I was, [59:52] I had not been in public life, um, much less in public, in, in politics for 30 plus years at that [1:00:04] point, which is just a long way of saying that all I could do, I did, which was to, uh, think about [1:00:16] what was, what was happening and what was about to happen, which was not, not to, to belittle that [1:00:27] enterprise. It was, um, it was the most serious thing I've ever had to think about. Um, but I did do [1:00:38] that. And then you get a call from Richard Cullen. Can you tell me about that? Yes. I, on, um, January 4th [1:00:49] in the, uh, night, certainly in middle of the evening, uh, in Colorado, which is where my wife and I were, [1:01:00] uh, uh, Richard called, uh, Richard Cullen, uh, uh, is a, a long time and dear friend of mine [1:01:08] and had been, uh, uh, a vice president Pence's, uh, outside counsel for several years at that point. [1:01:18] I knew, uh, on January 4th, uh, that Richard was very close to the vice president. So, uh, uh, my wife [1:01:26] and I were having dinner and Richard, uh, uh, calls, um, it was nothing at all because Richard and I, uh, [1:01:35] uh, had been talking, you know, multiple times every day or two for two plus years over everything [1:01:44] that was going on in Washington, uh, just because we're that, that close friends. Uh, so the call [1:01:52] itself was nothing. Uh, he called and he said, uh, uh, he calls me judge, which is fine. And he said, [1:02:00] uh, you know, judge, what, what are you doing? I said, well, Elizabeth and I are having, uh, dinner. Uh, [1:02:06] what's up. And he said, uh, uh, uh, uh, do you know John Eastman? And I said, uh, yes. He says, [1:02:15] well, what, what can you tell me about John? And I said, uh, uh, well, you know, John was one of my law [1:02:22] clerks, uh, um, perhaps 20, 25 years ago. Uh, he's a, uh, a professor, an academic. Uh, I think I said, [1:02:33] uh, uh, uh, at Chapman, uh, uh, law school in California. Um, and, uh, [1:02:41] I said, what, what, what, why are you asking? And he said, uh, uh, you don't have any idea, [1:02:49] do you? And I said, no. And he said, well, uh, the, uh, John Eastman is advising, uh, uh, [1:02:56] the president and the vice president that uh the vice president uh on january 6th can uh [1:03:07] essentially overturn the the 2020 election uh unilaterally uh i said to uh uh richard uh well [1:03:22] richard you know you you can tell the vice president that that that i said that he has [1:03:27] no such authority at all uh and and that he must accept uh and the congress must count uh the [1:03:36] electoral uh college votes as they have been cast and uh and and that he has he is not free to uh [1:03:48] not count uh any of the votes count other votes or otherwise uh discount any of the votes that have [1:03:59] been cast uh if that's to be done at all that's a uh an authority and a power that's vested uh in the [1:04:08] congress of the united states you know uh and certainly not in the single person of the providing [1:04:16] presiding officer of the senate which is the vice president united states and richard said uh he [1:04:24] he knows that that's your view and i said uh okay uh uh you know i i okay uh and uh and uh i said [1:04:39] well look richard you know of course i uh i understand the gravity of this and i'd be willing to help [1:04:46] um the vice president in any way i i can and uh and and please tell him that and and and we hung up [1:04:55] uh my wife having um heard only one side of that conversation uh said something like uh oh my god [1:05:04] what was that and uh and i said well that was richard and and and he said that john eastman's advising the [1:05:11] president and and and the vice president that that the vice president can unilaterally in effect [1:05:18] unilaterally overturn the election uh and uh richard just called to ask me you know about about [1:05:26] john and uh uh you know and and my wife who had been gravely concerned about this even for a longer [1:05:38] period than i had been gravely concerned about it you know was just uh deeply deeply troubled uh and and [1:05:49] said uh that that i must i i i i had to do something and i said to her this is my wife of 40 years i i said [1:06:00] look hon i there's i'm just not part of this uh uh january 6 is is 24 hours away essentially and and i'm [1:06:12] not even part of this in any way at all and uh you know as a as the wonderful wife that she is she [1:06:21] pled with me to do something and uh uh and and then we later went to bed that night and and with my [1:06:29] my having told her that i i was willing to do anything but there was nothing that i could that [1:06:35] i could do and this was in the hands of of other people so well we went to bed on the the night of [1:06:44] january 4th before we go on i we will come back to the story and pick up the second phone call but i [1:06:53] want to ask just unpack some things that are going on um inside that moment i mean the first is that you [1:06:59] were getting a call from the vice president's personal lawyer um to weigh in on this legal [1:07:07] matter i mean you've worked in the office of legal counsel the white house i mean there's there's [1:07:14] lawyers there's institutions inside uh the executive branch there's a senate parliamentarian um who you [1:07:22] would think would be be activated at this moment what does it mean that you are being that you are being [1:07:29] called i i i understood immediately why i was being called because i understood everything uh about the [1:07:43] the process and the individuals involved but at that point none of that was relevant i mean we are at [1:07:55] january 5 uh and i had been following the the lead up to that day intensely for three or four days [1:08:06] and as i remember the vice president was going to meet uh for lunch with the the president in the oval [1:08:17] office and uh at that time we now know uh the vice president was going to tell the president one last [1:08:32] time that he was not going to do what the president wanted and that he was going to uh accept and count the [1:08:41] electoral college votes as they had been cast uh so i i understood from my uh my life in in in all of [1:08:54] those offices including the white house and and department of justice and the supreme court i understood [1:09:03] all too well that there that this was the the final moment and this was a matter uh solely between [1:09:12] uh the president united states and his vice president when you hear the name john eastman because we've [1:09:21] talked about sydney powell about rudy giuliani about the lawyers who are who are public who are the public [1:09:27] face of this um when you hear that john eastman is involved um does that does that signal a change in in [1:09:36] the danger of the moment i i didn't i didn't perceive it as a change in the danger um but i did know as of [1:09:53] that moment which for me remember was the night of january 4th for the first time that uh that the [1:10:05] president was being advised by uh a constitutional scholar and a constitutional historian of the highest [1:10:16] order which is to say that you know john eastman i'm confident at at that moment knew more about [1:10:28] uh the constitution the constitutional history that informs the constitutional questions involved [1:10:41] and the laws of the united states than probably anyone in the country john's a brilliant scholar [1:10:54] uh the constitution of the united states uh the constitution of the united states uh the constitution of the [1:11:06] constitution and constitutional history the reason i make that emphasize that latter point is that [1:11:16] for conversational purposes uh there was little or no law on the several questions that were being [1:11:27] uh pursued uh pursued in those final days and specifically the the the power under the constitution uh that that [1:11:41] resides in the presiding officer of the senate on j on january 6th there's there's just really little law [1:11:49] uh in the past 235 years to and to inform uh us the country on the the role of the [1:12:03] of the vice president on that that day i knew that john knew everything that there was to know and had thought [1:12:17] through uh the possible uh authority and power of the vice president uh in in acting as presiding officer of [1:12:30] the senate on on january 6th so i it did not increase the danger the danger was upon us and it was imminent [1:12:45] and from my standpoint i knew to a certainty that that i had there was nothing i could do about it [1:12:55] were you surprised that he was involved were you surprised at the conclusion that he reached [1:13:02] somebody who you knew personally well we'll have to unpack those two questions uh uh i suppose i was not [1:13:13] surprised that that that he was involved although uh you know i've been around the white house and the [1:13:23] presidency for enough years now to know that that uh you know it's it's a a surprise when any person [1:13:34] you know has access uh to to the president of the united states uh at any time let alone in in a [1:13:43] a significant moment in in in history uh but that said john uh i knew john had this background i knew that he had [1:13:55] uh access to a lot of of high-ranking people and in the legal community uh and also in the the the public [1:14:11] public public community so uh i was not surprised except in the one sense i i mentioned which is [1:14:21] um i would be surprised at you know any person at all but i would also i'd be especially surprised for [1:14:29] any person that i knew personally to to uh to learn that they were uh advising the president united [1:14:39] states in the oval office at such a moment now your your second question uh before january 6 and not until [1:14:56] long after did i have the uh understanding of exactly what uh john had been advising uh at each step along [1:15:08] the way and and i i gather now that his his his advice you know changed uh you know uh frequently [1:15:21] during that short period of time in response to developing circumstances his his his advice did not [1:15:32] change you understand what i'm saying it's just that as circumstances changed uh his specific counsel and [1:15:41] advice and advice changed to accommodate the circumstances that the president was was confronting at that [1:15:48] moment as opposed to the previous moment but it was not until long after january 6 when uh his his [1:16:01] several of his memos came out uh in the uh woodward costa book peril uh that i could lay eyes on [1:16:12] on the the specific legal reasoning that that that john was uh using to advise the the president uh [1:16:22] and uh and you know as a lawyer and as a judge you know that's that's the first and only time at which i [1:16:32] could comment on on anyone's legal analysis and especially john's what do you think when you read [1:16:40] those memos later i read them the first day that that that they were available from the the woodward costa [1:16:48] book i read them very very carefully uh i understood every word uh and uh i understood the legal thinking [1:17:04] behind behind every word but i was uh uh uh greatly concerned uh that john had given the advice that he had given [1:17:20] at every at every at every turn and at every turn of his analysis as i subsequently uh wrote i subsequently [1:17:34] wrote uh i i i diagrammed his uh his his legal analysis from beginning to end and concluded and [1:17:47] said that that he was wrong at at every uh every turn of his analysis every turn of his thinking i've [1:17:57] heard the memos just in the run-up um to this interview and one thing that stood out in in one of [1:18:03] them which wasn't a legal argument um it was the phrase we're no longer playing by the queensbury rules [1:18:09] tell me what you read when you see him say something like that and what do you make of it yes that that [1:18:15] that was certainly one of a of a troubling statement that to me was uh uh a recognition by him to his [1:18:32] client the president united states that uh that that they were were not going to um play by the at least [1:18:50] by the letter of the law from that point forward that's not to say that what they did from that point [1:19:00] forward was not within the law i'm not commenting on that i'm just saying when i read those words [1:19:10] words they told me as a judge and a lawyer that john and the president uh or anyone for that matter [1:19:23] had decided at that point that they were not going to um play at least by the spirit of the law [1:19:37] if not worse those are the uh i of course could be mistaken on this but you know i'm 68 years old [1:19:50] i've uh i've i've i was a federal judge for 15 years um i've worked at the supreme court for a handful of [1:20:00] years um and uh and i've been a quasi public figure for 40 years now to my knowledge or to my recollection [1:20:12] as i sit here today i've not uh uttered a single partisan or political word in public [1:20:23] or in in writing uh and i've pledged to myself that i never would and and and again i don't believe [1:20:32] i ever have that's not to suggest in any way at all that i'm holier than thou that's just to say uh [1:20:43] really how i view myself and my uh um the privilege that i've had to work in the places that i've worked [1:20:54] and especially uh as a united states court of appeals judge um but uh every other lawyer [1:21:04] you know is is certainly free to make that decision for him or herself [1:21:09] her herself uh though i don't believe that any lawyer uh is is permitted to say those kinds of [1:21:26] words to a client in writing uh ever let alone to the president united states of america at that [1:21:37] particular moment those were ill-advised words so let's go to the second phone call that you get [1:21:48] um the next day from richard khan so uh uh i'm i'm still in colorado with my wife uh i get up very [1:22:02] early in the mornings typically between 4 30 and 4 45 and that that day was no exception uh and we have [1:22:11] a guest house in colorado my wife was over in the guest house and and i was up early having um breakfast [1:22:20] and having my coffee uh i had had my breakfast and i was having my cup of coffee probably around six i [1:22:32] think no later than 6 30 um colorado time and richard called uh he said uh judge um we need to help the [1:22:45] vice president uh and i said uh okay what what do we need what does he what does he need uh and and [1:22:56] and richard you know this longtime friend of mine uh very seriously says well uh he and we don't [1:23:06] we don't know um and i said well uh we have to decide then what what this even means what uh you know [1:23:19] what what are we dealing with what are we talking about i believe in that first call richard told me [1:23:28] that the vice president was going to meet with the president for lunch that day that that that [1:23:35] afternoon of january 5th and my understanding i think then but i know subsequently was that [1:23:47] uh the vice president was going to tell the president one last time that he he was not going to do what the [1:23:53] president wanted him to do the next day um and uh and richard said uh we have to do something uh [1:24:07] very quickly i understood that to mean uh before the vice president met with the the president in the [1:24:17] noon noon noon noontime hour uh and again it would have been 8 30 8 8 30 uh east coast time and uh i said [1:24:31] uh i said well richard i i understand the the momentous nature of of of the of the moment and the gravity of of the [1:24:48] of of the of the moment but uh i i don't have any idea even what you're talking about uh and and richard said [1:24:59] well judge i i don't really either uh and then he said uh somehow we need to get your voice out to the [1:25:09] country uh and i said okay uh on on what uh you know believing i knew what but i just wanted to hear [1:25:25] him say it and he said you know on uh what the vice president must do tomorrow and i said okay uh i'd uh [1:25:36] i i literally said richard you know as you know i mean i don't i don't even have a job right now i'm [1:25:43] unemployed i'm retired i haven't been in public life for um you know 17 years and i haven't been in [1:25:53] political life for 35 years uh i don't have a fax machine uh i i i can't there's nothing there's no [1:26:04] possible way uh that that i can you know get my voice out to the country uh and uh and besides [1:26:16] i said to richard you know look i'm a nobody nobody cares what i think anyway so what what's this all [1:26:24] about uh and and richard said uh we need to get your voice out to the country very very quickly uh somehow [1:26:37] and i said okay and uh and uh he said i'll call you back in 10 minutes so um you know i continued [1:26:48] drinking my coffee and and brainstorming and um and and thinking as seriously as i can think [1:26:57] about anything and he calls back in 10 minutes and he says so what are you what what are you what [1:27:03] are you going to going to do and i said i i i have no idea richard i haven't had a single thought i said [1:27:10] just think yourself about what you're asking me to do get my voice out to the country how is that even [1:27:19] possible and you want this done immediately i said richard i i i honestly don't even have a thought [1:27:28] as to what to do and he said i'll call you back in five minutes so he calls back in five minutes and and [1:27:36] he said uh uh so you thought up any of anything yet and i said uh i said well i i've had one thought [1:27:46] i said i just opened a twitter account within the past week or two or three uh i i guess i could tweet [1:27:57] something but richard i i don't know how to tweet something and he said this is perfect he says you you [1:28:09] have to do this right now and i said richard i don't know how to tweet something and he said you [1:28:18] just have to do it and he said uh i'll call you right back so um uh i'm sitting there still in in my [1:28:29] dining room having my cup of coffee and uh all i had there with me was my iphone so um you know i i [1:28:39] typed out uh the words that that that i ended up tweeting and that everyone knows right now and and [1:28:50] i typed them out essentially verbatim as i tweeted them uh and uh and then i go downstairs to my office [1:29:01] uh to try to figure out how to how to tweet this uh i had just learned how to tweet a hundred and [1:29:10] whatever characters you're you're allowed but no more and i obviously had a lot more to say than 140 [1:29:20] characters or however many you're uh and so i was panicked you know i was panicked about all of this [1:29:29] but specifically about that um you know my wife and kids had always said that there's no way i could be [1:29:38] on twitter because i it's not possible for me to to say less than 140 characters you know but there i was [1:29:47] on the the morning of january 5th and and and i had to do this so uh i did the best i could and and and [1:29:56] what that meant was uh i copied and pasted from my iphone an email that i sent to myself on the iphone [1:30:12] that included the the text of the tweet then i copied and pasted that on my laptop uh into a word [1:30:24] document because a word document was the only thing i knew how to do so then i'm sitting there you know [1:30:32] and you know i'm i'm nervous right and and uh uh i don't get stressed but that's the word that would [1:30:43] communicate you know to to others i you know i i i was i was stressed out not just because of the [1:30:52] moment but because i didn't know how to do this and uh uh so i just thought okay uh the first thing i [1:31:02] got to do is divide this long word document into 140 or 180 character individual tweets uh and so [1:31:13] you know i won't digress to explain how one does that but everybody knows how but it's it's a herculean [1:31:20] task because you know you don't want to break up the individual tweet uh you know except at the right [1:31:27] point but that's invariably more than the 180 characters or that you have so i go through all that that uh [1:31:35] rigmarole and and i have now uh what i think are 180 or 140 characters fewer uh than than for each [1:31:48] individual tweet in the thread and so now now i'm stuck and and and so uh uh my son sends me my son's [1:32:00] in in in the tech world and knows all things tech and uh and especially you know computer tech and all [1:32:10] so he sends me the instructions uh the official instructions from twitter on how to uh tweet a [1:32:20] thread uh which you know to a normal person or the instructions are very simple but to me they they were [1:32:29] not but in any event uh i followed those instructions uh over the next 30 minutes or 45 minutes and uh [1:32:41] and finally came up with the the tweet thread uh and i i proofread it like i've never proofread anything [1:32:51] in my life which is not to say that there are not typos in it as i tweeted them it's just that i i gave it [1:32:59] all i had and uh and then uh i took a deep breath and uh and i and i tweeted it um at that moment i had [1:33:14] not a single thought in the world that anyone uh would ever even see the tweet that's how little i knew [1:33:24] knew about what was uh afoot uh in washington dc uh and uh uh uh i went about my business uh uh that that [1:33:40] whole day uh until about noon eastern time january 6 uh not knowing anything uh about what the vice [1:33:57] president intended intended to do uh until then but before i get to that i i will say that uh shortly [1:34:06] after the tweet uh i tweeted richard called me actually i should have included this part of the story [1:34:17] uh when i finally told uh richard that i could tweet something uh i said to richard uh i said richard i will [1:34:28] never speak a single word on this subject unless every single word is personally approved by by by [1:34:42] vice president pence and i said richard i swear to you i mean this i will never say a single word [1:34:52] unless he has personally approved it uh and uh richard said uh uh well he doesn't he he he doesn't need to [1:35:02] uh approve it and i said richard i don't really care what he thinks i will not do it unless he approves [1:35:11] it and richard said uh okay judge i'll call you right back and he calls right back and in in five [1:35:19] within five minutes and he says the vice president will will uh will be comfortable and and uh and [1:35:26] pleased with anything at all that you say and i said richard i'm not doing it and he said uh you [1:35:37] really have to at this at this at this point judge uh i've told you the vice president will be fine [1:35:45] with anything you tweet and that's the case and we need to get this done now and i said richard uh i [1:35:55] don't like this one bit uh but i'm going to do it so so that again that exchange between richard [1:36:06] uh cullen and myself occurred on uh the morning of january five uh that would be probably have occurred [1:36:16] around uh maybe as late as nine o'clock eastern time i mean it's an amazing so i'm i'm sorry so let me [1:36:30] pick up now where i had left off previously um so within a few minutes maybe 10 uh richard i've now [1:36:41] i've now tweeted uh and you know i'm done uh and richard calls me back and says uh um the new york times [1:36:54] has your tweet uh and and they're going to be running it on the front page uh momentarily and i said uh i said [1:37:05] good grief richard what on earth and he just said i just wanted to give you a heads up uh and i said [1:37:14] you know thanks a lot you know and uh um i now know what i didn't know then which is um the vice [1:37:26] president's team uh all inclusive because i don't know who in particular um had the new york times holding [1:37:38] uh for for my for my for what was turned out to be my tweet um and for what purpose you know the [1:37:51] the vice president or his team would have to explain that to you i mean it's an amazing moment and you're [1:37:58] trying to figure out how to treat i saw um in in one detail of the story uh that you sort of had to [1:38:05] convince your son to help you that he was he was reluctant well well yeah i mean as all millennials [1:38:13] are toward their parents you know on all things tech uh you know both of my kids for years and and [1:38:22] and uh have always you know you you know parents call their kids and go you know can you help me do [1:38:30] this on the computer and the kids say you know i don't have time for this you know you know you're [1:38:36] uh um you know you're prehistoric you're a dinosaur and i'm i'm busy you know and so uh for my son [1:38:48] at that moment you know i i said uh i said look john um this is serious business i don't have time to [1:38:55] play around you you either you know you either tell me how to do this right now or or i'll cut [1:39:00] you out of the will and uh and you know that drew the the the typical millennial response you can [1:39:07] you can be sure but we got the job done well what was at risk in the vice president's decision i mean [1:39:16] he's getting competing legal advice from john eastman from you and whether they could have successfully [1:39:23] you know overturn the election or not but what what was at risk if the vice president did decide [1:39:30] that he had that legal authority to reject certain votes to follow one of the plans um that's outlined [1:39:37] in the eastman memo you cannot overstate uh the what was at risk uh and i'm not even sure that i can [1:39:49] conjure up the words to uh describe what was at risk and uh what would have happened had the vice [1:40:01] president um gone along with the plan if you will and rejected um the swing state electoral slates and [1:40:15] god forbid uh awarded the presidency to to donald trump uh over joe biden who had won the [1:40:25] popular vote um and i'm careful about stating that while i think about the answer to your question [1:40:35] uh the the first first words are uh it would have thrown the country into a uh a constitutional crisis [1:40:48] uh of a kind that the constitution uh doesn't comp contemplate and therefore provide for [1:41:01] um and uh and then if you want to to begin to explain the what would have happened uh you know i would [1:41:16] say the first thing is no one in the world knows what would have happened next no one in the world knows [1:41:28] what should have happened next and therefore no one in the world knows what could have happened [1:41:37] next uh the the the short immediate answer is that all of all of this would be put before the supreme [1:41:52] court of the united states for a final decision that's under my view of the supreme court and the [1:42:05] justiciability of of of of a claim like this prior to to january 6 i believe many if not most scholars [1:42:20] and knowledgeable people uh would suggest that perhaps the supreme court would not take that case for [1:42:35] for technical reasons they would argue that that that it's non just non-justiciable uh either it's a [1:42:43] political question or or the answers are committed to a different branch of the government in this case [1:42:52] those uh those uh scholars would say the legislatures and the states or congress have the final [1:43:07] authority not the courts again i disagree with that and the advice that i gave uh was was premised on [1:43:21] that understanding of mine that the supreme court would decide the several questions that would uh [1:43:31] get the country out of the constitutional crisis that it would then have been in i'm just making the [1:43:37] point that i i don't have any corner on the market uh as to that jurisprudential understanding of of of [1:43:47] the constitution okay and many many people including uh john eastman and the and the other scholars who [1:44:00] who assisted him they for instance did believe that the supreme court would not decide the cases [1:44:10] because the the court would conclude that that it the court did not have jurisdiction to decide the [1:44:16] cases and and their plan was uh grounded ultimately in that belief as to the jurisdiction of the supreme [1:44:26] court but uh i i digress too much but but that's to say that in the end i believe the supreme court would [1:44:36] intervene but it's possible that i hold a minority view on that i i don't know uh if the court had not [1:44:45] intervened and that's really goes to your question um first it would have meant that that that we would not [1:44:55] have had a president uh on inauguration day and likely for considerable time thereafter while the [1:45:05] political process uh figured out the political process uh figured out the answer to it um that political [1:45:13] process would have of necessity been one of of utter chaos utter chaos uh in america and and consequently in [1:45:25] the world i mean america cannot uh be without the its leader of the free world for even a single moment [1:45:37] and that is contemplated in the constitution itself i mean you know we're the constitution provides for [1:45:44] the the the next president to assume office at a a date and time certain and the the then incumbent [1:45:53] president to leave office at that same date and time in order that there not be a single moment when [1:46:01] there is not a president of the united states of america uh had the vice president not done what [1:46:09] he did it's there is no way that we would have had a president uh on inauguration day and and i don't [1:46:18] believe we would have had a president on inauguration day even if the supreme court had to decide these [1:46:25] issues because these are uh enormously consequential constitutional questions that of necessity require [1:46:35] some amount of of briefing and uh deliberation by the supreme court and and at that moment we would have [1:46:43] been just weeks away from the inauguration i don't think the supreme court could have decided it but the [1:46:51] the ultimate point is is that you know at any moment where the the the united states does not have a [1:46:59] president of the united states uh the the world is is in danger and at risk and needless to say the the united [1:47:12] states is in danger and at risk literally including from a national security standpoint uh [1:47:22] uh so that's the the short answer of the much much longer exceedingly complicated [1:47:33] constitutional and and and legal uh answer to to to the question of what would we have been confronted [1:47:42] with had the vice president not done what what he did thank you i mean i think that really sets the [1:47:49] stakes the stakes the stakes well and uh the the it's hard to imagine a level of chaos not just legal [1:47:56] chaos but political and uh you know america's place in the world that would have would have ensued let me [1:48:02] ask you about that i i would i would just say to to you know the the stakes could not would could not [1:48:14] have been any higher under our form uh form of republican democracy than they would have been [1:48:30] had vice president pence not done what he did it's not possible for the stakes to be any higher [1:48:39] under our form of government i mean it's amazing and it's amazing as we've made this film to realize [1:48:47] you have a constitution you have institutions you have courts and yet decisions made by one person [1:48:54] by multiple people throughout throughout this story have real real consequences that the the system [1:49:01] depends on on a level of goodwill or norms yes i i i i would put it this way uh the um the the the [1:49:15] the institutions and and instruments and instrumentalities of of our democracy uh it is necessary [1:49:24] that we have them but it's not sufficient without leaders acting in good faith in the interest of the [1:49:38] country as opposed to their partisan political interests this the country could not long exist [1:49:51] it's it's it's literally that significant and what we what we saw play out on january 6 was uh the this [1:50:04] the assault or attack from within uh on on our institutions of democracy and the political in the in the [1:50:14] american political process and the american political experiment uh the attack and assault from within [1:50:28] by our public officials who were acting themselves not in the interest of the country but out of their own [1:50:42] personal political interests uh that is something that that's that's the war that the one war that america [1:50:57] can never win let me ask you about one other moment before we get to january 6 which maybe not didn't [1:51:05] represent an existential threat in the way the vice president's decision did um but was the decision [1:51:11] um of ted cruz who had clerked for you and a number of other senators that they were going to try to [1:51:18] the 11 senators that they were going to try to um somehow delay the voting of the electoral college to [1:51:26] send things back to the state and it's not entirely clear to me what the goal what they how they saw it playing out [1:51:32] but how did you evaluate um his role um the efforts that they were making the the role played by uh any [1:51:43] senator or congressman in my view unfortunately is authorized by the electoral count act of 1887 [1:51:56] that's the act that that explicitly gives congress the authority to overturn a presidential election [1:52:09] in a host of different circumstances those circumstances are are circumscribed uh by design but in actual [1:52:24] effect are little circumscribed because of the ambiguity in the terms that permit congress to overturn an [1:52:35] election nonetheless nonetheless the law permits objections to electoral states in in the technical legal sense [1:52:51] that's that's what uh senator cruz and and other senators and other congressmen did uh that's a frightening [1:53:05] thought to me to me but before january 6th i suspect it was not a frightening thought to many people at all [1:53:17] my hope is that that today it's a it's a frightening thought to everyone but regrettably i i i i know it's not [1:53:29] an especially frightening thought to anyone on capitol hill because uh at this point i don't believe that congress will [1:53:42] amend the electoral count act uh in order to uh minimize to the greatest extent possible [1:53:51] a repeat of january 6th 2020 and even if it was legal what what responsibility or or how do you evaluate [1:54:03] those those efforts well that as i've said you the the institutions of our democracy and the instruments of [1:54:17] of our democracy are unnecessary but insufficient uh for the america to function in some ways the the most [1:54:31] important of those two uh ingredients of the process are the people the individuals the leaders of of our [1:54:45] country that's where we as the people who who are represented we the people who have given the [1:54:55] power to our elected representatives are entitled uh to insist upon good faith and good judgment [1:55:07] um in my own personal view um that expectation you know uh is ill-founded and ill-conceived at this point in [1:55:24] our uh in our uh in our political world the um another way that i i i have i have put it uh is that um uh our our [1:55:39] our political our political leaders uh face choices every day between uh country and and and politics [1:55:56] personal and partisan politics every day they are faced with a choice between those two but they rarely [1:56:11] believe that they're faced with that choice on anything and in my personal view admittedly as a [1:56:21] cynical political view they never act as if they believed that their choice was between country [1:56:33] and politics and politics and that's a failure of the of the political uh process in america political with [1:56:42] a capital p process that's the failed leadership that i've referred to uh repeatedly over the past six [1:56:50] months is it disappointing personally i mean ted cruz has said you were like a father figure well i i i'm i'm [1:56:59] not going to speak to um you know my my my view of of what ted did um because that's neither here nor there he [1:57:09] he's an elected senator of the united states um he he has to uh uh live with the consequences of his [1:57:19] decisions just like every other elected official did but uh but am i disappointed uh with the entire [1:57:30] political process and then specifically the our our elected representatives yes i'm i'm beyond [1:57:39] disappointed as i believe all americans should be i don't want to believe that there's a single [1:57:50] citizen in the united states who can look at what's going on in in in politics today and in [1:58:02] washington dc and believe for one moment that this is even acceptable let alone that this is what it ought [1:58:12] to be again we're we're at war with each other oh and i don't see today uh any any catalyst any intervention [1:58:30] any off-ramp uh to this war um on the on the horizon uh we had to begin to to walk ourselves off the ledge [1:58:51] even to begin you have to have conversation with and among each other today there's no such thing as [1:59:04] conversation conversation conversation we don't talk to each other we don't talk to each other we [1:59:15] scream at each other you know we cast aspersions we criticize you know with uh with one-liners and [1:59:25] sound bites and refuse to discuss any issue at all uh as long as that's the case the the country's in a [1:59:43] uh a a a spiral spiraling decline from which it can never recover and and this is just common sense [1:59:57] um rhetorically i would just ask you know how how can any person at all disagree with what i just said [2:00:07] all i said was look look at where we are this is not where we want to be this is not what america [2:00:17] is this is not where we want to go let's stop just stop right now let's stop and begin talking to each [2:00:31] other about how we go forward from here and eventually how we solve the problems that that beset the the [2:00:46] country now uh the reason why at the this moment i don't believe that anyone anyone even wants that [2:00:54] conversation uh is because we're we're locked in this vicious political war and uh and there's no [2:01:06] agreement uh among us uh on the even the fundamental values and principles on which america was founded and [2:01:21] has become the greatest nation uh in in the world and uh on the the basis of which are uh not just our [2:01:31] freedom but our our hopes and dreams for for america are entirely dependent not only is there do we not [2:01:41] have agreement on even those most basic principles and values we have fundamental disagreement as to to those [2:01:55] values and principles uh it is almost like we are uh we find ourselves uh back at the the founding of the [2:02:07] republic the the the creation of of this of this great nation but uh with vastly different antagonistic [2:02:23] views of how to recreate the nation that we all created 235 years ago when we get to january 6th the [2:02:38] president and his lawyers and advocates they've tried to overturn the election in the courts they've tried [2:02:43] state legislatures they've put pressure on mike pence he issues the statement um that you mentioned [2:02:51] um quoting you and by that point you know that john eastman must know if you have read his memos [2:02:59] without pence on board that there's not a legal route um or a plausibly legal route to change the [2:03:07] outcome of the election and they have this rally and the president goes out and speaks um and he [2:03:12] mentions pence and he singles them out and others at the rally are talking about fighting what do you [2:03:16] what do you think when you look at that moment um what are you thinking as you watch it what does it [2:03:23] say about our this story of american democracy so on on january 6th uh i was working in in my office in [2:03:36] colorado uh up until around the the the noon time eastern time uh at that point i went over to have lunch [2:03:48] with my wife uh not knowing anything about what was happening in real time at that moment in washington dc [2:03:59] when i walked in the door my my wife was um just fear and and and and and terror [2:04:12] in her eyes and she said uh have you been watching and i said no watching what and she said [2:04:25] whatever word she used i don't remember but you know uh the the the u.s capitals under attack [2:04:35] and and you know you know just tingling go you know went down my spine just like everyone else [2:04:46] um and uh i said i said oh my god no i i what's going on and she said uh uh well look you just you [2:04:57] have to see it she said but but first i gotta tell you that um uh they there are they've erected gallows [2:05:07] on the grounds of the capitol and they're they're chanting to hang mike pence um and across the bottom [2:05:17] of some of some screens uh is uh is running that they that you advise the the vice president uh that he [2:05:27] should uh to do what he what he has now told the the world that he is going to do um at the capitol and [2:05:40] uh uh and my wife said um said uh uh look mike i'm uh i'm scared uh for uh us and and for for our safety [2:05:53] and uh i said uh okay i i i understand i haven't seen any of this uh i said let's let's talk about this [2:06:05] this this is serious and i said uh look you know no one knows where where we are uh no one knows we're [2:06:13] in colorado um you know no one really knows where we are at all but if they if they if they wanted to [2:06:21] do something to us they would would go to our home in chicago so uh if you want we'll we'll i'll get [2:06:28] some some some kind of security at our home in chicago uh and that's what we did um so then um [2:06:39] you know we we don't even know how to turn the television on and so but we tried to turn the [2:06:45] television on to watch it and couldn't um and then i said well can you pull it up on the computer [2:06:51] laptop and she said maybe so she she pulls it up on a computer laptop we set it on the the mantle [2:07:00] next to the the the dining room table and and we're watching uh the the events at the capitol [2:07:10] um and uh my wife my wife was in tears and uh um in a short very short time i told her uh that uh i i [2:07:23] i couldn't watch it and i was going to go back to work and uh and i left um so i mean i it would take me [2:07:34] uh hours to to uh explain everything that was going on in my mind uh but it was everything going on in my [2:07:45] mind was what was going on in everyone else's mind the you know in the in the moment the the mental [2:07:55] process is uh is uh receiving so many you know inputs that that it's that the only output is just [2:08:07] incomprehensibility of this uh and the bewilderment as to what's going on and finally if at all what on [2:08:20] earth does this mean for uh the united states of america you get a call from the vice president [2:08:30] the next day i got a call from the vice president i believe um the morning of january 7th um my wife [2:08:41] and i had gone down to the ups store there in colorado because she had to mail something uh i was [2:08:49] uh standing inside because it was cold um and i got a call that registered as spam s-p-a-m and uh um [2:09:02] just like everyone else i i never answer a call from spam i don't even answer calls that i don't [2:09:10] recognize let alone spam calls um but i was just standing there doing nothing and you know um i don't [2:09:21] even know why i answer the call whenever i answer a call like that i i say nothing at all usually for [2:09:31] the duration of the call because most typically uh it's a recording that cuts off you know unless or [2:09:41] until you say something so i say nothing so i i i said nothing for what seemed to me to be you know [2:09:51] longer than i usually say nothing and then a a voice came on it said uh is this judge ludig and i said [2:10:03] you know guardedly uh yes um it is and the voice said uh please hold for the vice president of the [2:10:12] united states and um so i uh scurried outside to you know to get into our car so i'd have [2:10:21] some privacy uh and as i was getting into the car um the vice president came on the phone and you know [2:10:31] and said um judge mike pence um and uh that's how the conversation began um the vice president was uh [2:10:44] as as gracious and kind uh as any person could ever be uh under any circumstance at all [2:10:55] uh let alone the circumstance uh under which he was calling me i couldn't even uh i could i [2:11:04] couldn't and i could never have imagined that the vice president would have called me ever but he did [2:11:12] i just think i forgot to ask you um when you find out you're quoted in the statement [2:11:19] um was that how surprised were you that that was and i mean that that was a very important statement [2:11:25] when he issued it i mean was it a relief to you to know that he was now on the record about what he [2:11:31] was going to do how did you react no no no no that that was not my i i was not relieved that to know [2:11:40] that that's what the vice president was going to do at all and and and i never even had that thought [2:11:46] um you must remember that i i had no idea even that anyone would see the tweet the day before i had [2:12:02] zero thought that the vice president would use it even if he saw it which is to say i didn't really [2:12:16] know think or believe that the vice president would ever see the tweet i know you you know people could [2:12:25] say well that's kind of naive in light of what actually happened but the way i would in my defense [2:12:33] explain it is that uh no one knew that the vice president was going to issue that letter to the [2:12:43] congress and to the nation nobody and to the extent i even thought about it i just assumed and i think [2:12:58] to 100 percent certainty that that the vice president would never mention anybody or anything uh from [2:13:08] the podium uh in the chamber you know at at noon on january 6 2020 so i wasn't expecting anything at all [2:13:19] uh and then uh on the afternoon of the 5th right i believe now as the vice president was on his way to [2:13:29] the capitol uh he he re he released the letter letter and uh a couple of my clerks uh from years ago [2:13:41] saw it for some reason i now know it's because it was carried you know in the news and they emailed [2:13:49] to me and and uh you know characteristically for clerks and children you know you know it was something [2:13:58] uh each of them separately said something like judge what on earth are you doing and so i just responded [2:14:08] you know and said uh what do you mean elizabeth and i are just out here in colorado and uh uh and uh [2:14:17] we're about to have lunch and they both wrote back immediately and said you know don't be coy with us [2:14:25] you know and i said guys i'm not being coy i don't even know what you're talking about and uh and then [2:14:31] they wrote back immediately and said the vice president united states has just uh you know released his [2:14:38] letter to the to the nation and and he cites you and and and some statement that you you gave uh [2:14:50] and and i i wrote back to them and and literally said guys i i i still don't even know what you're [2:14:56] talking about you know if the vice president issued some letter that refers to a statement by me [2:15:06] do you have it and if you do send it to me and they both sent it and and that was the first that i [2:15:12] knew or ever expected or even imagined that the the tweet would find its way into the public domain [2:15:21] after january 6th there's a there's a lot of criticism of the president's conduct of what [2:15:29] went on before it feels like maybe there's going to be a turning point especially inside the republican [2:15:35] party but the farther that it it moves beyond january 6th um the less that the condemnation of january 6th [2:15:45] of what happened after 2020 um the quieter the voices are um and you described the republican [2:15:52] party has fallen through a rabbit hole in alice in wonderland but what do you mean by that what [2:15:58] happens after january 6th as you're watching uh the party well the allusion to alice in wonderland i [2:16:05] think people generally understand but the the the short explanation is that you know uh alice finds [2:16:15] herself in in a subterranean world where uh nothing makes sense and everything is upside down uh and there is [2:16:24] there is therefore uh intellectual and rational chaos uh that's what i meant to convey uh because that's [2:16:38] where i believe the republican party uh to the person was at that time and is essentially today a year and [2:16:54] a half later you know we've we've begun to see some uh cracks uh in the in the republican party recently but [2:17:09] only begun and only recently um and i believe that even those cracks are only due uh to uh uh the opportunity [2:17:28] that's been presented the convenience opportunity that's been presented to our our republican leaders [2:17:38] to consider distancing themselves uh from the former president uh the opportunity being the the the the [2:17:49] recent primaries but as i would have expected uh of of all politicians and including the republicans [2:17:59] um you know at best they're waiting for an opportunity that they can avail themselves of [2:18:09] they're not about to seize the opportunity and make it themselves by speaking out i mean and when they [2:18:18] make an active decision say to take liz cheney out of the leadership for example how important are [2:18:26] those decisions that they're making on the way in the in the wake of january 6th i i don't do politics and [2:18:32] i never have um and i don't want to ever do politics or even for that matter speak a word about politics [2:18:43] but the day that i uh read with the rest of the the country that the republican party had censored [2:18:51] liz cheney uh was the uh the final straw for me to the extent that i had a straw uh [2:19:03] uh in in the wind for republican politics uh why because uh i don't believe that you have a political [2:19:14] party at all uh if the the the putative members of that party would censor liz cheney simply and merely [2:19:32] for wanting to investigate as a member of congress the events of january 6th it's unimaginable to me in [2:19:43] in my world view of politics that any person in america would not favor an investigation of of january [2:19:56] 6th i i i'm not naive i understand the politics involved just in that investigation in my view [2:20:08] notwithstanding the politics every single american citizen and every single member of congress should [2:20:18] have urged an investigation of the events of january 6 which which leads me to you know my pessimism at [2:20:31] the moment if if the country's reaction to january 6 had been what it ought to have been uh i would not [2:20:44] have especially any concerns today uh for the country and for for our democracy on the the one-year [2:20:56] anniversary of january 6 2020 uh the new york times asked me to uh to comment on [2:21:05] where i thought the country was a year later uh and i did and and uh i i think i said something [2:21:15] like uh on january 6 2020 i was gravely concerned for america and for our democracy i said a year later [2:21:29] uh for the new york times that uh i was more concerned then than i was january 6 2020 uh that's all i said [2:21:45] what what the the reason i said that was that uh the reaction to january 6 2020 was the polar opposite of [2:21:57] what it it should have been what it ought to have been uh by the country uh and uh and if we can't agree [2:22:11] that what occurred on january 6 was wrong and to digress in the view of the republican party was quote [2:22:29] legitimate political discourse if we can't agree as an as a nation as to the wrongness of the event [2:22:40] and that statement by the republican party we'll never agree on anything you know that um judge [2:22:50] carter has written about um and i think in the eastern lawsuit possible theories of criminal liability [2:22:56] do you think there's a role for a criminal investigation um or potential crimes in the run-up to january [2:23:05] six i i i have studiously and scrupulously avoided comment on that uh and and many many have asked me [2:23:18] that uh and and uh and i i wouldn't comment on that today what what what uh what i'll say uh as to [2:23:32] the former president and to john eastman is this um it's exceedingly difficult to bring [2:23:43] criminal charges against a lawyer for his or her advice to a client uh that's not to say that that it's [2:23:55] not uh that it's impossible or that it's not at times appropriate but it's uh exceedingly difficult [2:24:07] and it's rare uh the only way that that could ever happen uh is if the the the lawyer [2:24:17] was advising his or her client uh as to the law uh as to the law in bad faith uh purposely uh advising [2:24:34] the client as to the law when the lawyer did not believe that that was the law from that you can [2:24:44] understand it's it's it's it's rare and it should be rare though it's not impossible as to the president [2:24:57] because he's not exercising a professional service in the way that a lawyer does it's a political [2:25:05] service to the to the nation uh different rules apply to him uh criminal rules and those rules cut [2:25:16] in in both directions at the same time uh no one believes that that that that a president of the [2:25:26] united states should be uh criminally prosecuted um except in the most extraordinary circumstances [2:25:39] possible uh under under our system of government by the same token most people would agree that even a [2:25:52] president could and should be prosecuted for the most egregious criminal acts that that a president [2:26:05] a president might commit so the question for the country and and and most immediately for the [2:26:12] department of justice as to the former president is is the latter namely you know uh does the [2:26:24] president's behavior and conduct uh first constitute a criminal offense uh under the united states code [2:26:37] that's a that's a uh an awesome uh decision to have to make a decision that only the attorney general [2:26:47] of the united states can make merrick garland if he makes that decision he must then decide the even the [2:26:58] even more uh awesome uh decision of whether uh the united states should prosecute the former president [2:27:13] even assuming he had he had committed a criminal offense so those two layers of decision uh for uh as to [2:27:25] the decision whether to prosecute uh former president trump uh is to tell tell you uh how [2:27:37] exceedingly difficult that decision is how rare it it will always be and how rare it ought always be [2:27:50] you write that in your new york times editorial that there's a clear and present danger to our democracy [2:27:57] now which is which is very strong language language you didn't didn't uh you're borrowing [2:28:04] that language what what did you mean to convey when you said that and why were you issuing such a strong [2:28:11] warning yes i uh of course borrowed that phrase uh it's one of the most famous phrases in the law [2:28:19] um and uh i and in in in in the context the the question was does free speech present you know [2:28:32] a clear and present danger to to our society uh yes i i i borrowed that phrase uh what i meant by it was [2:28:49] exactly what the phrase intended to impart originally and is meant to impart today it's clear that's that's a [2:29:04] legal term it's clear that is everyone understands it everyone sees it there's no issue it's it's not [2:29:13] ambiguous it's clear second it is a present danger it is a danger right now that's occurring in front of [2:29:24] our eyes a clear danger that's occurring in front of our eyes in plain view to all so that's you know [2:29:37] that's why i introduced that piece in the new york times with with that statement so what was the clear [2:29:42] in president danger that i was talking about um there i was talking about uh the well i was talking about [2:29:54] even there in that piece the danger that uh president trump and his allies in in congress and in the states [2:30:05] uh were preparing to uh to exploit the the uh electoral count act of 1887 in 2024 in the same way that [2:30:20] the same way that they had exploited it in in 2020 but but i was also saying in in uh in that new york [2:30:29] times piece uh a couple of months before the cnn piece that i wrote that this is the blueprint for [2:30:40] republicans uh in 2024 uh the blueprint to do exactly in 2024 what they attempted but did not succeed in [2:30:53] doing in 2020. now in my own thinking why was that a clear and present danger it was easy for me to me as [2:31:05] i said in the new york times piece they are not only doing it in plain view uh they're boasting that [2:31:17] that's what they're doing and they're telling us and in complete transparency that that's what they [2:31:26] are going to do because you've written a lot about ways to change the electoral count act ways to change [2:31:33] the law where we where you could potentially present prevent these abuses and as you've said [2:31:37] they've run into to a roadblock um which leaves us with the as as we've just been talking about it the [2:31:44] goodwill the norms the commitment you know not to the letter of the law but to democracy as a value [2:31:53] um how important now are is that how much danger is there on that front on the goodwill front on the [2:32:03] commitment to democracy that is the the danger and that is the threat and that is the only danger and [2:32:18] threat it is the people it is our elected representatives of we the people if they are not [2:32:31] willing to do their job then democracy can't be saved but neither can america it's that simple you [2:32:45] could have a you could have a america and american democracy without any rules at all if you could [2:32:57] rely upon the good faith of the of our elected representatives but but our founders understood the [2:33:09] folly in that and that's why they uh created the constitutional system of governance that that we have [2:33:21] today in in in in the constitution but they were uh in fact i just recently was reading and and and [2:33:30] and having this thought the the founders were political figures themselves but what i was reading [2:33:39] recently convinced me where i had not been convinced before that they totally understood that a nation [2:33:54] cannot be entrusted with its public officials and public representatives and it's for that reason that the framers [2:34:07] built and created the the constitutional structure for our governance which they believed rightly would [2:34:19] protect america even from its public politicians that's why today i believe that america and for [2:34:32] sure american democracy is at risk because those representatives whom the founders completely understood [2:34:45] would tend to act in their own self-political interest rather than the interest of the country [2:34:54] the founders believed that the system would constrain them today proves that the founders as wise as they [2:35:04] were as they were as to that were mistaken thank you let me be first if michael has a follow-up or anything [2:35:16] that we missed did vanessa have anything um no i mean you mentioned the the tweet uh the twitter thread that [2:35:26] you put on january said i was wondering would you be willing to read some of it i have it right here if you [2:35:32] don't mind um the uh you know what i'd say is background for for all of you is that um words are the most [2:35:42] important thing in my life um uh every every single word that i've ever spoken or written uh i've measured and [2:35:56] calculated uh for at least minutes every single word i look up every word [2:36:08] even though i know the the definition perfectly well and could recite it i look up every important word [2:36:19] and then i look up the synonyms and the definitions of the synonyms before i choose the word that i use [2:36:27] and uh that's my whole life and uh so just imagine january 5th and i'm told to write something for the [2:36:43] country on the biggest constitutional issue of our times and to do it immediately and what i'm going to [2:36:55] read you is what what came out and i'll tell you that my whole life um at many moments like that um you [2:37:08] know i've literally prayed for the words to come and um not one single time in my life have the words not [2:37:19] come when i come when i needed them uh that's where my mind was while i was preparing that tweet um i i [2:37:32] was more than conscious even though i had no idea that i was writing for history and um and i did the [2:37:45] very best i could to choose the words that i wanted to be remembered in history so that's a complete [2:37:55] digression and a personal one very personal one but since she wants me to read it i just want you all to [2:38:02] to have that back story as you call it the most important words to me by the way were the the the [2:38:13] loyalty words because those were the words in which i understood that i was speaking to the personal [2:38:25] relationship between the two men as tortured as it was at that moment i wanted to speak to that um [2:38:41] so relatively speaking the first words were not as much as important to me as the latter and of course [2:38:52] i don't think i've ever even seen the latter words quoted anywhere right but but just in terms of your [2:39:00] personal interest those were the words that i summoned and and and asked for um you know the [2:39:10] only responsibility and power of the vice president under the constitution is to faithfully count the [2:39:18] electoral college votes as they have been cast the constitution does not empower the vice president [2:39:27] to alter in any way the votes that have been cast either by rejecting certain of them or otherwise [2:39:39] how the vice president discharges this constitutional obligation is not a question of his loyalty to the [2:39:48] president any more than it would be a test of a president's loyalty to his vice president whether the [2:39:57] president assented to the president assented to the impeachment and prosecution of his vice president [2:40:05] for the commission of high crimes while in office no president and no vice president would or should [2:40:20] consider either event as a test of political loyalty of one to the other and if either did he would have to [2:40:34] accept that political loyalty must yield to constitutional obligation neither the president nor the vice [2:40:47] president has any higher loyalty than to the constitution of the united states thank you so much for for doing [2:41:01] this i mean one of the things that comes that comes through from your story is how you guarded your [2:41:06] credibility throughout your career every word that you issue not you know weighing in on every moment of [2:41:15] of things not getting involved in politics and then this monumentous moment happens where the vice [2:41:22] president's personal lawyer is calling you in a moment of constitutional crisis and that reputation that [2:41:28] carefulness that you'd built up before was was part of the reason you were probably was the reason you [2:41:34] you were in that position um at that crucial moment in history yeah that's that's the whole story and and [2:41:41] and that's the whole story for me personally you know too uh i've never said a word about the [2:41:49] rather lengthy conversation the vice president and i had on january 7th um and uh and of course he's [2:42:00] not said anything about it publicly as to the pressure he was under and why he came to me um you know i'll have [2:42:14] to take that to my grave um but um it's uh it was probably the most uh meaningful um moment in my life you know [2:42:31] um because it brought my whole my life full circle you know from from where i began and uh you know to that [2:42:41] historic moment that was like about as serendipitous as as as could ever be you know i mean you're just [2:42:53] like i'm just sitting there going oh my god uh you know i look i you know i personally believe that uh [2:43:09] that was uh divinely inspired and it wouldn't surprise me if the vice president thought the same [2:43:20] but whatever it was for me it was um it was uh it was a big deal