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How the latest J6 hearing added to Trump's legal jeopardy, explained by Ryan Goodman
"My way of thinking of it is Trump took an affirmative step within that conspiracy."
Three days before the January 6 insurrection, President Trump wanted to replace acting attorney general Jeffrey Rosen with a relatively obscure assistant AG named Jeffrey Clark, because Clark (unlike Rosen) was willing to use the DOJ’s power in a lawless, evidence-free effort to strongarm officials in states like Georgia into decertifying Biden’s victory.
The plan was so far advanced, in fact, that White House call logs from that day referred to Clark as “acting attorney general.”
Trump only relented and kept Rosen around when top DOJ officials made clear to him that not only would they resign if Clark, who they clearly held in low esteem, was elevated, but also that the move was likely to backfire.
The above chain of events came into focus during Thursday’s January 6 committee hearing about Trump’s pressure campaign against the DOJ. It also contained revelations about the desperate efforts government officials made to substantiate Trump’s crazed conspiracy theories, Trump’s desire for the DOJ to seize voting machines and simply declare the election “corrupt” and then “leave the rest to me and Republican congressmen,” which House Republicans sought pardons in the final days of the Trump administration, and much, much more. (If you missed the hearing, you can see my full Twitter thread of video highlights starting here.)
To get expert perspective on the key takeaways, I spoke to Ryan Goodman, a former special counsel to the general counsel for the Department of Defense who’s a founding co-editor-in-chief of Just Security, in addition to working these days as a professor of law at NYU.
A transcript of our conversation, lightly edited for clarity, follows.
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What revelations from today's hearing about Trump's pressure campaign on the DOJ stood out the most to you?
One thing that was very new was Eric Herschmann, White House lawyer, telling Jeff Clark directly that his very first step as attorney general, if he sends this letter [to Georgia officials on behalf of the DOJ basically asking them to overturn Biden’s victory], would be to commit a felony.
That's powerful because it's not just Jeff Clark sending that letter. Trump’s scheme, Trump’s plan, is to send the letter to the states to tell them to decertify because, lo and behold, the second sentence in it says the DOJ has essentially found election fraud — which is a lie. So I thought that was pretty remarkable.
The second thing to me is just the way the committee told a narrative that’s new in a sense of how they put the pieces together. And that is, it’s not just about Trump lying as to whether or not he lost the election. It's that Trump lied about what the Department of Justice had found, and he knew it. So we don't need a debate about what was in Trump’s head or if he thought he really lost. Trump knew, because the Department of Justice was telling him on a daily basis that they didn't find any credible foundation for any of these allegations of widespread fraud.
I thought that was a remarkable thread that went through the whole hearing. Some of what they covered is old, but the way in which they put it together with the live witnesses, I thought something different happened today.
You tweeted about how today's hearing showed the "strength of the case of prosecutors to prove criminal intent."
How much did today's hearing add to Trump's legal jeopardy? Does the fact he never followed through with firing Rosen protect him at all?
I think it added significantly. We could just take this as one chapter, and if it were the only chapter of January 6, this is a compelling case. It's the reason that Clark is advised that he'd be committing a felony. It's the reason that Donoghue also says that this will create a constitutional crisis if they try to go through with it.
Now, they did try to go through with it. So my way of thinking of it is Trump took an affirmative step within that conspiracy. Yes, he didn’t fire Rosen, but he actually hired the new attorney general. He had already given the position to Clark, and we kind of knew that before, but then today came the revelation that the White House log had already started to call Clark the acting attorney general by around 4:19 p.m. on January 3.
You mentioned how close we were to a constitutional crisis.
Expand on what that would’ve looked like, and how do you think things might've played out had Trump taken the step of making Clark acting AG?
If Trump had dismissed Rosen, the next step was very obviously going to be that Jeffrey Clark as acting attorney general of the United States sends a letter to Georgia and several other battleground states saying something to the effect of, the Department of Justice has determined that there's real concern about election fraud and we strongly encourage you to uphold the constitution by decertify your electors within three days of January 6.
That would've thrown the entire thing into an absolute tumult. Part of the question would would’ve been, what in the heck is the Department of Justice even doing in this process? That's not its role, as Clark was being told by his colleagues. It was just such an outlandish scheme, but that's the bomb that would've dropped.
As a counterfactual one question is, well, what if all the folks who said they were resigning would resigned and then speak to the public about what was going on? But that's part of the constitutional crisis. It looks as though the entire leadership of the Department of Justice would've been beheaded and resigned, as well as the White House counsel.
Have these hearings significantly altered your thinking about how likely it is Trump is prosecuted?
They have altered my sense of how this is going to go down. I do think it bolsters both the Justice Department case and then the kind of wild card, which is that Trump gets indicted in the Fulton County district attorney case [for his involvement in trying to overturn the election in Georgia, including demanding the secretary of state to “find” votes for him].
I think the evidence is compelling. The public that’s watching can see a very compelling case and it gives cover to the Department of Justice and the Fulton County district attorney to move forward expeditiously and to at least cross the very first threshold, which is simply to ensure that there is a full blown criminal investigation into these matters. We don't know that that's happening at the Justice Department. That’s happening in the Georgia case. But I think that if that is not happening as of the start of June [on the federal level], that surely to goodness will be happening now. There's so much that has been presented publicly that crosses the bar several times over for the threshold required to open an investigation.
For laypeople, briefly explain the significance of a number of House Republicans who worked with Trump on overturning the election asking for pardons.
Might this place any of them in legal jeopardy?
It does in a sense because it seems very incriminating that they would seek a pardon. Adam Kinzinger said something like that — why would you seek a pardon unless you are basically guilty of a crime?
Of course they'll have a response. First, they're denying it, still, despite the testimony for multiple witnesses. But that the other is that they'll say, oh, you know, we're just deeply concerned that the Justice Department would be politicized under a Biden administration and they'd come after us in a witch hunt, so that's why we wanted preemptive pardon.
They'll say things like that. It means there's maybe something there — you know, where there's smoke, there's fire. But we don't have any other strong evidence as to what exactly were the crimes that they thought they had committed. That's difficult to know.
Thank for you checking out this edition of Public Notice. This is it for me this week but I’ll be back Monday with more. Cheers — Aaron