Can Trump Run for President if Convicted of a Crime?

SARA SIDNER, SENIOR CORRESPONDENT: Now, nearly two years on, this action by the Committee marks a significant move forward, but with several members leaving Congress, and the Republicans regaining control of the House, what happens now? Our next guest, staff writer for The New Yorker, Amy Davidson Sorkin joins Michel Martin to tackle these very questions.

(BEGIN VIDEO CLIP)

MICHEL MARTIN, CONTRIBUTOR: Thanks, Sara. Amy Davidson Sorkin, thanks so much for joining us.

AMY DAVIDSON SORKIN, STAFF WRITER, THE NEW YORKER: Thanks for having me.

MARTIN: You’ve been watching the work of the Congressional Committee to investigate the January 6th Insurrection very closely. Perhaps as closely as anybody. The Committee had its last meeting yesterday. What stood out to you?

SORKIN: Well, one thing that stood out was the tone. You know, the Committee was meeting in a very solemn way to say our work is done. But that — there’s some element of tragedy to it. The reason their work is done is, for one thing they’ve finished the report, but it’s also done because the Committee is being disbanded at the end of this congressional session because the Democrats lost control of the House. So, it’s work is done in that way. It was also interesting looking up at the role of nine Committee members and thinking about the fact that only five of them are even coming back to Congress. The vice chair, Liz Cheney, has been more or less driven out of her Party.

MARTIN: Uh-huh.

SORKIN: The other Republican on the committee, Adam Kinzinger, is retiring. Elaine Luria, a Democrat, lost her race in a swing district in Virginia. And Stephanie Murphy is retiring as well. So, you’ve got that sense of loss as well as a sense of accomplishment. And that, I think, leaves one wondering what comes next. At the same time, they gave a fair idea of what might come next later this. We’re going to get a very in-depth report. They previewed the report and some of its more dramatic elements. And a lot is going on. In a way, they were handing off the ball. They were saying, you know, we’re working — they ended by voting on criminal referrals to the Justice Department.

MARTIN: Let’s talk about — you say, the headlines from the meeting itself. I mean, obviously, you’re saying that the Committee is referring — is suggesting to the Justice Department, that they investigate the former president, also the former president’s lawyer. But they also recommended that a House Ethics Committee take up the matter of the four sitting members, including the Republican leader, Kevin McCarthy, who just refused to accept the subpoenas or refused to appear before the Committee, refuse to testify.

SORKIN: Well, we’ll see. It’s a tricky, tricky question, the, you know, subpoenaing of members of Congress. On a separate issue, there’s a whole train of litigation where Lindsey Graham was trying to use, what is called, the speech and debate clause of the constitution to avoid testifying in related proceedings in Georgia about the efforts of the president and his team to put pressure on state legislators there — state officials there to help him in his efforts to overturn the election. So, it’s complicated with congressman. And that’s why I think the ethics part of it is interesting. Keep in mind though that this — with this group of Republicans, it’s possible what we will get is, sort of, a torrent of retaliatory ethics committee referrals. And it’s hard to know where that is going to lead. What’s interesting is that the Committee was — did take its own subpoenas quite seriously. They made a referral that led to the prosecution of Steve Bannon, the president’s former advisor for criminal contempt of Congress. And he, in fact, sentenced to a few months in jail, though he hasn’t served — there’s — pending an appeal. And indeed, I think that some of the most productive work that the Committee did had to do with its litigation of its subpoenas. That —

MARTIN: Why do you say that?

SORKIN: You know, they managed to get through a lot of the evidentiary hurdles that up held some of the other investigations. For example, you mentioned, the president’s lawyer, John Eastman, who was also the subject of some of these criminal referrals. He had fought the subpoena of his — some of his e-mails at his — separate e-mail address that he had. They litigated that and it was that litigation that not only gain them a lot of important and quite incriminating materials, but let some of the questions about what happened be aired in a court. And the judge who adjudicated that claim is through — Judge Carter, he probably heard a quote from him, from his findings in that a lot. He was the who said that, what he saw going on in the conversations between Trump and his people with law degrees was really a coup in search of a legal theory. It allowed some discussion of that. There is also a litigation involving the Committee and the National Archives in which, you know, Trump and his allies have made all sorts of quite spurious privileged claims. You know, executive privileges as if Trump is still and always would be president and could just tell anybody not to speak. And those have actually had an airing in court, and Trump has lost, or the Trump side — the Trump team has lost. And that’s important because it means that the Committee’s work and the evidence that they can put before the public and other investigators, that allowed the Committee. It also, again, shows that it’s worth going to court sometimes.

MARTIN: Were there particular moments in these hearings that you think stand out, either for the impression that they left or for the argument that they made, or the impact that it may have had on the public? Are there a couple of moments that you think are particularly consequential?

SORKIN: It’s interesting to see how much the Committee had aimed its arguments at people who might actually have doubts about whether Joe Biden won the election. You know, who might approach it thinking Donald Trump, in good faith, thought something had gone on. And you know, that’s what was driving him. (INAUDIBLE) very periodically a few things. First that so many people around Trump kept telling him he’d lost. And they kept telling him that his plans for holding on to office were illegal and unconstitutional. It’s particularly striking, I think, for a lot of people with the — how they documented the pressure that was put on Mike Pence, his vice president. How — and how many people said this is not right. There is no way to watch the hearings and hear the witnesses and feel that somebody made a good faith mistake about this. Now, I hasten to say that, you know, when we talk about the hearings, it was mentioned yesterday that, in what was released yesterday, which is just the executive summary of the report, the rest of the report comes later this week. That we saw either in person or in video clips maybe 70 witnesses, but the Committee interviewed about 1,000 people. So, there’s so much material that we haven’t seen yet, and that it’s still hard for us to evaluate.

MARTIN: Who is the audience for these hearings?

SORKIN: You know, it’s a great question. Obviously, there are multiple audiences. I do think that they are trying to reach somebody who might not be sure but what exactly happened. And if — maybe it was just all, you know, Trump on the one hand being a little rash, a mob on the other hand, how it all fit together, and may think — people who think — might think that it did not fit together. There are other audiences also though. I think in a way, the Committee would say that it’s most important audience is that amorphous thing known is history, that it’s establishing a record, making a statement. And there was something historical about what we were watching in a number of ways. It’s both historical in the sense of trying to say, what exactly happened on this dangerous day for our democracy? But it’s also historical in saying how do we then respond, move forward, what lessons do we draw from this, in a way that is protective of our democracy. The other audience, of course, is the Attorney General Merrick Garland and his team, and Jack Smith, the special counsel who has been appointed to look into January — Trump’s relation to January 6th and other issues.

MARTIN: Obviously, the Justice Department, you know, to use a cliche, an overworked cliche, the ball is now in their court. OK. But from the standpoint of the public, do you have a sense of whether the Committee succeeded in its goal of persuading people that this was serious? That, as you just put it, that this was precarious.

SORKIN: It’s a great question is what I would say. Did the January 6th Committee make a difference in the midterms being less bad for Democrats than a lot of people expected? Maybe. You know, that — some of that argument does seem possibly to have gotten through in key races. It didn’t solve anything, but it might, in a funny way, give Democrats the courage to keep making that argument. To not say, you know, this is never going to reach anybody, because it seems to have reached some people and that’s a proof of concept, if nothing else, that it can reach more people. That you can talk this through with people, you can get people to least be in the conversation about what it meant, that they haven’t completely written it off. Now, I would also say, you know, about the ball being in the Justice Department’s court, I think that the people in the Justice Department would say, it’s been in our courts for a while, and it’s going to stay in our court. You know, there have been about 900 criminal charges scaled already. They have been at it. It’s interesting, there’s a moment in the executive summary where there is a comment that, usually when Congress makes a referral to the Department of Justice, that it’s about something that Congress has just come up with or has found in the course of its work. And they recognize that this isn’t in that category. It’s not news to the Department of Justice that this happened, and that a lot of crimes may have been — were committed on January 6th. There is some divergence in how they are approached, and of course, there is a question of Donald Trump. You know, the Justice Department has gotten a lot of flak for — are they being too slow. They have been very methodical. And, you know, it’s easier really, as a committee, to, you know, say, we’re going to refer Donald Trump to the Department of Justice, then you actually have to make a case.

MARTIN: So, I want to go back to something you kind of raised at the beginning and that something that you’ve kind of thought about in your writing is that, is there any gray area here in terms of the ability of the Justice Department to actually prosecute a former president? I mean, is there any gray area there? Is there any sort of separation of powers issue here, or any other sort of deep constitutional question that actual, you know, we should — that we need to think about?

SORKIN: The deepest constitutional question — because Donald Trump is no longer president right now, but the deepest constitutional question has to do with the consequences. That is not to say that there aren’t other constitutional issues, but where I think there’s a lot of dispute — now, you could bring charges against Donald Trump. You can convict Donald Trump. What may surprise people is that there’s a lot of — that doesn’t mean that Donald Trump can’t run for president in 2024. The idea of barring Trump from office, there are a million legal and judicial complications. So, it would probably end up, almost most certainly, end up the Supreme Court. And then, then you have to ask whether this Supreme Court would bar Trump from running for office. Also, really whether it should. The only post-civil war use of the — barring somebody from running for office again because of taking part in an insurrection clause was only a disreputable one. It was used in 1919 to ban a socialist pacifist congressman from taking his seat because he had spoken against the U.S.’s involvement in World War I. I mean, I’m talking about the autocracy being behind the war. And so, you see how those ways could — how you can get to a place that it’s not great from a civil liberties perspective going forward.

MARTIN: Is there a particular moment that stands out for you, that sort of encapsulates what it is that this committee was trying to achieve or what is it that you remember from?

SORKIN: I think that the recounting of the ways that people who held positions of authority in the government, in the administration, in the military, when it came down to it, most of them took their jobs really seriously. And we had people who stopped and said, what is the constitution want me to do? And they attack (ph) on that. You saw that in the videos that the Committee obtained of people, of the Members of Congress who were told, you know, it going to take — it takes quite a while to clear out the cap on this. And they said, no actually, we have to get back in there right now. The Committee sees itself as part of that process, of part of that stop and question and ask, where do our constitutional values lead us? And part of that is, as you said, saying, well, you know, there have been a lot of criminal charges against people who are in the mob. What else were they part of, and what are the different ways that our justice system can approach that at the highest level as well as at the lowest level? That moment of taking responsibility, I think, stands out. I think the Committee has tried to do that and — but it’s — you know, I think it’s important to remember that the Committee is not standing alone in this. There is so many investigations going on and it’s not going to end with the Committee being disbanded. This report, it’s going to get us further, but it’s not going to be the final word yet. I mean, maybe we’ll hear — you know, it’s not inconceivable that we will have a moment when Donald Trump is actually questioned in a court of law about his role in this. And if we get to that point, that might — you know, that’s part of the work that we are seeing now from the Committee. But in the end though, I think that what stands out is that people are going to — in future years, go to the polls with a clearer picture of the consequences of different kinds of folks and about the choices that they make too.

MARTIN: Amy Davidson Sorkin, thank you so much for talking with us today.

SORKIN: Thank you so much for having me.