The Undoing Of The Department Of Justice

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Speaker 2 This is Fresh Air. I'm Dave Davies.
If you watched the televised hearings of the Select Congressional Committee investigating the January 6th attack on the U.S.

Speaker 2 Capitol, you probably remember the dramatic testimony of former White House aide Cassidy Hutchinson. Officials of the U.S.

Speaker 2 Department of Justice who were investigating Donald Trump's alleged interference in the 2020 election were watching, too. But at the time, they had no idea who Cassidy Hutchinson was.

Speaker 2 That's one of many striking revelations you'll find in the new book by our guests, veteran investigative reporters Carol Lenig and Aaron Davis.

Speaker 2 Lenig and Davis write about Donald Trump's powerful impact on the Justice Department, including including his efforts to protect friends and punish those he considers enemies.

Speaker 2 But much of the book focuses on the Biden years, when Trump wasn't in charge, and the Justice Department pursued investigations into the violence on January 6th, and eventually into Trump's alleged interference in the 2020 election and his retention of thousands of government documents.

Speaker 2 Their account is a bracingly clear explanation of why those efforts failed to get either case against Trump in front of a jury before his his re-election rendered them moot.

Speaker 2 It's largely a story of officials acting in good faith, trying to adhere to standards of fairness and nonpartisanship, perhaps too rigorously at times.

Speaker 2 The authors say Trump's targeting of prosecutors and FBI agents in his first term in office likely played a role in the department's caution. Carol Lenig worked for 25 years at the Washington Post.

Speaker 2 She's won or shared in five Pulitzer Prizes and has written two books about Donald Trump and another about the the U.S. Secret Service.

Speaker 2 Lenig left the Post earlier this year and is now a senior investigative correspondent for MSNBC.

Speaker 2 Aaron Davis is an investigative reporter for the Washington Post. He's won two Pulitzer Prizes and reported from 14 countries.

Speaker 2 He was lead reporter and writer for an investigative series on the January 6th attack, which won the George Polk Award and with other Post coverage, the Pulitzer Prize for Public Service.

Speaker 2 Lenig and Davis' new book is Injustice, How Politics and Fear Vanquished America's Justice Department. We recorded our conversation last Thursday.

Speaker 2 Well, Carol Lennig, Aaron Davis, welcome to Fresh Air.

Speaker 2 You know, Trump was charged with conspiracy to defraud the United States and related charges, you know, related to his alleged interference in the 2020 election.

Speaker 2 We will never know what a jury would have made of the charges and the evidence, because it never went to trial.

Speaker 2 But part of that is because the Department of Justice didn't get moving on that investigation quickly, not really until well into 2023.

Speaker 2 But it's interesting, I learned in your book that very early after the election, before the January 6th attack, a woman in government, Waleska McClellan, flagged what looked like a coordinated campaign to subvert the election results.

Speaker 2 Tell us who she was, what she did.

Speaker 3 I'm impressed, Dave. That is a good find in the book and a scoop that Aaron and I were both really struck by when we came across it in reporting for this book.

Speaker 3 Waleska McClellan was a top investigator in a little-known Inspector General's office for the National Archives.

Speaker 3 And in December of 2020, after Donald Trump has lost the election to Joe Biden, she is presented with a series of certificates from

Speaker 3 people that are not the Secretary of State and various states, swing states, in which unusual signatures are given that suggest there are alternate electors who are going to challenge whether Biden actually won the election in their swing state.

Speaker 3 And she begins to review these with her fellow investigators and then decides the best thing to do is to go to the Justice Department, a prosecutor team that she knows in D.C., and ask them: doesn't this look funny to you?

Speaker 3 Doesn't this look coordinated? Because all of the certificates kind of have a boilerplate

Speaker 3 ticky-tacky similarity, and they are not official. And she's wondering, is this a conspiracy? Is this a crime?

Speaker 2 Aaron Ross Powell, right. And she's from the National Archives, right? So these are obviously very important official government documents.
She sees they look fishy, and she talks to the prosecutors.

Speaker 2 Looks like maybe this is not one or two people. There was a coordinated effort here.
What does she hear from the prosecutors?

Speaker 3 She goes to a prosecutor that she knows from a previous briefing named J.P. Cooney,

Speaker 3 and

Speaker 3 he says, sorry, sorry, I've been busy.

Speaker 3 I'll connect you with one of my team. And the prosecutor underneath J.P.
Cooney

Speaker 3 tells

Speaker 3 Willeska McClellan, you know, this just doesn't seem like something that we would pursue. Of Of course, that office of prosecutors in D.C.
are completely slammed with what?

Speaker 3 Investigating the violent attack on the Capitol and pursuing hundreds of people who were engaged in either breaching the Capitol and also

Speaker 3 violent acts against police officers that day. They are swamped, and they basically turn her down and tell her maybe she should pursue this with some state investigators.

Speaker 4 Aaron Powell, just just to add to what Carol said, these fake elector documents were really important in that moment in January 6th because Donald Trump uses this as a pretense to say that Vice President Pence can actually do something different and not certify Joe Biden that day.

Speaker 4 And it's part of the thing that some of the rioters are talking about in the crowd. You know, Pence should do this.
And so this was a real live issue. And

Speaker 4 here it was that Willeska had seen this and spotted it beforehand.

Speaker 2 Aaron Powell, there was another point not that much later when departments who were looking into the January 6th attacks began to see evidence which suggested coordination between some extremist groups and close allies of Donald Trump, like Roger Stone, for example.

Speaker 2 And they wanted to look further into this, subpoena, records, what were they hoping to do?

Speaker 4 Well, this is a really interesting point, right?

Speaker 4 So right after Biden is successfully inaugurated, and it's hard to go back and think about this, but there was even some concern inside the Department of Justice as to whether that could happen peacefully.

Speaker 4 They wanted to arrest as many of these rioters as they could beforehand, worrying that there would be violence on that day.

Speaker 4 But once they get through that inauguration, there's a group of prosecutors inside the U.S. Attorney's Office in D.C.

Speaker 4 who say we should really form a task force to broaden this beyond the rioters, to look at what is the connective tissue between the the people who went in the building that day and the people around Trump who were talking about needing

Speaker 4 to

Speaker 4 go tell the members of Congress to have some backbone and do what they needed to do that day.

Speaker 4 And so they put together a PowerPoint presentation. And again, this is Cooney, who is one of the prosecutors in the room.

Speaker 2 That's J.P. Cooney, who is an aggressive prosecutor, yeah.

Speaker 4 J.P. Cooney presents to FBI agents a plan to

Speaker 4 look at people like Roger Stone, who is

Speaker 4 outside the Willard Hotel the night before the January 6th attack with members of the Oath Keepers, and begin to question, what are they doing there? What are they doing? Were they talking?

Speaker 4 Who else were they talking to?

Speaker 4 And this is immediately met with some pushback by the interim team that Joe Biden has put in charge of the Department of Justice. And they say, wait, whoa, we're not going to investigate people.

Speaker 4 We're investigating this crime of the riot that just happened outside the Capitol.

Speaker 4 And that is a moment that really sets the tone and sets the direction of this investigation for a long time to come after Garland is seated a couple months later.

Speaker 4 But they really are opposed to looking at people and want to look at what happened in the crowd and the riot and work their way back up from there.

Speaker 2 Trevor Burrus, Jr.: Right. And these prosecutors wanted to do things like who was booked at the Willard Hotel during what days.
And, you know, there are kind of issues of, well, privacy.

Speaker 2 If somebody wasn't engaged in a crime, you know, where they stay overnight isn't necessarily anybody's business. And then maybe First Amendment concerns.
I mean,

Speaker 2 it's legal to advocate even strongly against the government.

Speaker 4 Yeah, this comes up at one point in time with

Speaker 4 then the head of the Washington Field Office and the FBI, who says exactly that. What if we catch somebody having a tryst at this hotel?

Speaker 4 I'm not going to subpoena. He literally says, I'm not going to subpoena the friggin Willard Hotel.
I don't want to collect all this information and be accused of looking too broadly.

Speaker 2 This is a pattern that we see for the coming months where at various time investigators and prosecutors see connections that might suggest a wider conspiracy, even the president being involved in trying to deliberately subvert the results of the elections.

Speaker 2 And there's resistance. And

Speaker 2 one element of this might be the new Attorney General Merrick Garland, who

Speaker 2 He had strong feelings about the independence and fairness of the Justice Department. Tell us about his approach and how it affected all this.

Speaker 3 Merrick Garland was an extremely respected jurist for his many years, I believe 24 years on the federal bench, had a wealth of experience in the law, was fastidious and methodical.

Speaker 3 But as Attorney General, even the people who really admired him and worked for him, some of them told us they were concerned about how allergic he seemed to even the whiff of looking like anything he did was political.

Speaker 3 And he said this publicly. I'm paraphrasing him a little, but he said, you know, it's not enough to be apolitical.
We also have to be sure people believe and that we appear to be above politics.

Speaker 3 That guided everything in that first year.

Speaker 3 Garland believed that looking directly at Trump or Trump allies would create that improper whiff.

Speaker 3 He wanted to go back to a playbook created in the wake of Watergate, in which the Department of Justice siloed itself from the White House, siloed itself from politics, and tried to have this incredibly pristine, almost priestly independence.

Speaker 3 But the problem was that not looking at this evidence delayed things for a long time. He kept saying he wanted to find out if there was some connection between Trump and the riot.

Speaker 3 And ultimately, when the Department of Justice finally agrees to launch this investigation, it's not based on evidence that they gained in their riot probe.

Speaker 3 It's based on evidence that had been public, at least that's what they formally cite in their documents, evidence that had been public since December of 2020, January of 2021, February of 2021.

Speaker 2 Yeah, so what changed in the year?

Speaker 3 Aaron Powell, the critical change was the House Select Committee. News was leaking out of that unusual team of very, very aggressive prosecutors like A Civ.

Speaker 3 And in January, there were a host of stories about the committee figuring out that these fake elector certificates were critical and that they were coordinated or appeared to be coordinated by Rudy Giuliani and members of Trump's campaign.

Speaker 3 And that discovery was extremely embarrassing to the Department of Justice, Aaron and I learned in our interviews. And we uncovered an email exchange in which

Speaker 3 a federal prosecutor who had been belatedly assigned alone to look into this potential linkage to Donald Trump's allies reaches out.

Speaker 3 to that Willeska McClellan days after these barrage of stories are raising questions, where is the Department of Justice on this investigation?

Speaker 3 That happened in January of 2022, a year after Willeska McClellan had been turned down.

Speaker 2 This was Thomas Wyndham, who was transferred in from Maryland and suddenly said, we've got to look into a potential conspiracy here, right?

Speaker 3 That's right. Yeah.

Speaker 2 You know, it's interesting that, you know, I've covered a lot of federal criminal cases, and I've always found defense attorneys can be chatty, they can be good sources.

Speaker 2 I never could get anything out of federal prosecutors that wasn't in the public record. You talked to a lot of agents and a lot of former prosecutors.
Was it easy to get them to open up?

Speaker 2 Were they angry about what had happened?

Speaker 4 You're right, Dave. It's never easy to get federal prosecutors to talk about just about anything.
I will say, just on the broad picture for a second,

Speaker 4 it's the fact that we were able to tell some of these stories, that people wanted to talk about this, kind of speaks to this moment and how important folks in law enforcement feel this is and what's what's going on inside the department.

Speaker 4 You know, they're largely, I'd say on the FBI side, especially a group that leans more conservative.

Speaker 4 And here they're the ones telling us what is going on inside the department, what's been going on these many years. We really need to, as a country, stand up and take a look and pay attention to.

Speaker 4 You know, we did not have still, even in that, have an easy time with prosecutors talking to us and telling us things.

Speaker 4 You know, we are very careful to protect sources in this book because, you know, in this current environment, anyone is a target.

Speaker 4 That said, there are some scenes that are pretty wild.

Speaker 4 And we found that you do end up with Thomas Wyndham on a park bench meeting with the head of the investigation for the House Select Committee, and they're comparing notes at one point in time with the head of the House Select Committee saying, you know, I'd like to start a relationship here so that we can share with you what we've found.

Speaker 4 You know, Thomas does not offer anything in that moment, but it goes to this point of there was this period where, unbelievably, almost a year after January 6th, Thomas Wyndham is the only prosecutor with the mandate to investigate if Donald Trump had done anything wrong in relation to January 6th.

Speaker 4 And nobody knows it. It's like secretly the most interesting man in Washington for a time.
And

Speaker 4 we follow him in the book as he goes around and begins that investigation.

Speaker 2 Aaron Powell, Right. And the interesting thing is that once he takes on that task, he does impanel a grand jury, but he doesn't have an army of investigators, right? No, no agents assigned.

Speaker 2 And in order to get agents' permission

Speaker 2 to subpoena witnesses and records, there's a whole nother battle to get the FBI to go along.

Speaker 3 Yeah, that's right. There is an incredible,

Speaker 3 I apologize for my language here, sphincter tightening in the FBI, just such anxiety about launching on this probe.

Speaker 3 You know, when Thomas Wyndham goes to the Washington Field Office and meets with Steve D'Antoano, the head of that office, he says, Look, this is the investigation now I'd like you to potentially join me in.

Speaker 3 And Dantoano knows that, hey, this is actually a crime I could investigate, which is fascinating since nobody saw that when Waleska McClellan proposed it.

Speaker 3 But he's thinking, okay, this is basic potential wire fraud, mail fraud. People sent in things.

Speaker 3 They actually signed them from various states and claimed to be the electors for their states when they were not, clearly. So he's seeing like, okay, there's a potential crime.

Speaker 3 But at headquarters at FBI, Chris Wray, the director, his general counsel, their deputies are all poring over the documents of how are we going to later justify in writing that we are investigating Donald Trump.

Speaker 3 And here's the killer on that one.

Speaker 3 What we learned, and nobody had reported at the time, was that the anxiety was so high, they ultimately concluded they wouldn't name Donald Trump as a subject, but they would name Donald Trump's campaign as a subject, along with Rudy Giuliani and some other advisors that they knew were involved in this coordination.

Speaker 2 Aaron Ross Powell, and I wonder how much of this, you know, arguably excessive caution on the part of senior FBI officials and some senior justice officials is attributed to the experience during Trump's first term when he

Speaker 2 intervened directly. I mean, he wanted them to indict the former deputy director of the FBI, and he wanted them to give Roger Stone a lower sentence, and there were real battles over that.

Speaker 2 People felt bruised, I guess.

Speaker 4 Aaron Powell,

Speaker 4 that's really true. You know,

Speaker 4 we're so far from it, but this is a big reason of why we started to report and work on the book, which is that we had written a couple stories, Carol and I,

Speaker 4 back in 2023 about some of the slow start.

Speaker 4 And we didn't have the whole picture then, but we had some pieces of it and you know we got some blowback from people inside the Department of Justice who said hey you don't know what it's been like in here

Speaker 4 during the first Trump term

Speaker 4 and

Speaker 4 so as we set about writing a book we said well let's try to capture that and we went back over those years of the first Trump term and as bad as it was and we saw in the headlines then it was actually worse.

Speaker 4 I mean, there was more arm twisting. There was more, you know, cajoling and trying to get, you know, prosecutors to sign things and go against what they thought was the right reading of the law.

Speaker 4 And the same on the FBI side as well.

Speaker 4 We've got to a place where we wanted to be able to have everyone who reads the book understand what is the Department of Justice, the condition that it's in as the sun comes up on the morning of January 6th.

Speaker 4 And if you can grasp that, then you can understand why they're so reticent and careful and slow in the years afterward.

Speaker 4 And when it comes to this particular point of really digging into the fake elector scheme and all the politicians around the country that become

Speaker 4 involved in that, there is suddenly a recognition inside the department when they look at this and say, this is actually the heart of the scheme.

Speaker 4 And if we're going to go forward with this, there's going to have to be a lot of hands on the knife, is one of the quotes from Inside a Meeting Inside DOJ, that everybody has to have buy-in.

Speaker 4 If we're going to go back and open an investigation in the president of the people around him, we have to have full buy-in here.

Speaker 2 We need to take a break here. Let me reintroduce you.
We are speaking with Carol Lenig and Aaron Davis, their veteran investigative reporters.

Speaker 2 Their new book is Injustice, How Politics and Fear Vanquished America's Justice Department. I spoke to them last Thursday.
We'll hear more of our conversation after this short break.

Speaker 2 This is Fresh Air.

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Speaker 2 You know, while the Justice Department was gearing up an investigation into the possibility of a conspiracy by Donald Trump and allies to undermine the results of the 2020 election, the Congressional Select Committee on January 6th was moving full steam ahead, headed by, you know, Liz Cheney and Benny Thompson of Mississippi.

Speaker 2 The Justice Department's prosecutors were way behind.

Speaker 2 At some point, when they realized they really wanted to investigate this, they approached the committee staff and said, how about sharing with us all of your interviews with people so far?

Speaker 2 What was their response?

Speaker 3 The clients, so to speak, meaning the lawmakers, the House members who were on the committee, did not want to share, and they made that very clear to their chief counsel, Tim Hafey.

Speaker 3 They felt like, look, we're about to have televised hearings where we're going to report our findings after interviewing hundreds of people, being way ahead of the Justice Department.

Speaker 3 And we don't want to give up our scoop, so to speak, to the Department of Justice, which has been lagging.

Speaker 3 You know, the investigators on this team, Aaron and I found it so fascinating when we really pulled back the curtain on this team.

Speaker 3 There is this incredible group of investigators on the congressional team, mostly former prosecutors, a few lawyers, who Hafey hires to help him figure out what happened.

Speaker 3 And the pace at which they are moving is devastatingly fast, especially compared to the Department of Justice. It's like the little U.S.
Attorney's Office that could.

Speaker 3 Tim Hafey, who is the chief counsel, is a former U.S. Attorney with the Department of Justice.
So his goal all along was: let's treat this like a real investigation. Let's get to the facts.

Speaker 3 And he actually has a conversation with Benny Thompson before he takes the job where he goes, I'm not going to be comfortable if politics is going to influence the end results.

Speaker 3 I want our facts to drive the day. But in the end,

Speaker 3 those clients, the lawmakers, they do not want to turn over the goods, and they stiff arm the Department of Justice, which now is trying to play catch-up.

Speaker 2 I remember moments in those televised hearings of the Select Congressional Committee, like when we heard about these dramatic meetings in the Oval Office in December of 2020, when Donald Trump was trying to reverse the results of the election, and he wanted to appoint Jeffrey Clark, this conservative attorney attorney who didn't really have the experience to lead the Justice Department.

Speaker 2 He wanted to make him attorney general. And a whole bevy of career lawyers threatened to resign en masse and shut that down.
This was some amazing stuff.

Speaker 2 When the Justice Department investigators were watching all this on television, had they talked to those folks? Was this news to them?

Speaker 4 On that particular one, they talked to a couple of those folks for various reasons.

Speaker 4 But you are right that they were behind and, in some ways, learning a lot of what had happened in and around Donald Trump in the weeks before January 6th as they were watching television, much like the rest of America was.

Speaker 4 It was a very odd situation where you had a Department of Justice that had not yet

Speaker 4 really engaged with this investigation, and certainly not at the level and the intensity that the House Select Committee had done.

Speaker 4 So, you know, prosecutors are usually the ones who want to have the first interview with anyone involved in investigation.

Speaker 4 Here, you had a very complicated situation because House Select Committee investigators had been the first ones to go in and interview.

Speaker 4 And so it was a bit of a black hole that the Justice Department didn't know what they were going to find and what was going to be said in some of these hearings when they became public.

Speaker 2 You know, normally when federal prosecutors and their colleagues in the FBI investigate a big white-collar case, they take their time, they build the facts, you know, they work from the inside to the out of a conspiracy, and they don't worry about time.

Speaker 2 In this particular case, the time that it would take mattered a lot. And I just know from covering these things that major white-collar criminal cases take a long, long time to get to trial.

Speaker 2 These were experienced prosecutors. They knew that.
Were they concerned that they were going to get to the point where Donald Trump's

Speaker 2 burgeoning presidential campaign for a second term was going to run into this trial schedule?

Speaker 3 Aaron Ross Powell, you know, Dave, Merrick Garland, the Attorney General, really set the tone on this, which was we're not doing anything because there's an election coming up, and we're not motivated or girded or pressed by an election calendar and the fact that Donald Trump is readying himself and making a lot of noise about running for re-election.

Speaker 3 Now, inside, Aaron and I learned that there were prosecutors worried about how much time was left on the clock.

Speaker 3 And this is a great moment to sort of compare Garland and the special counsel he would end up picking later when Trump really did announce that he was going to run for a reelection in November of 2022.

Speaker 3 Because Jack Smith, that special counsel, said literally within the first week of meeting his new team, we got to set a calendar. How about in three months we decide whether or not we can indict?

Speaker 3 That was on the classified documents case. In the others, he said, we have to triage to this.
We have to get moving.

Speaker 3 His motivation was, as he articulated it to many people we interviewed, was we can't let the American public sit out there with these incredible allegations of a potential coup, of a president potentially stoking violence to overturn a free and fair election.

Speaker 3 We can't let that wither out there in the countryside without resolving it in a fair court.

Speaker 3 And he also felt that it was really important for Donald Trump to not have those allegations laying out there.

Speaker 3 And so he was moving at a pace I have actually never seen in any DOJ prosecution of a complex case, much less one involving a former president.

Speaker 2 Right. And of course, Jack Smith was appointed after Donald Trump formally announced his candidacy for a second term.

Speaker 2 We need to take another break here. Let me reintroduce you.
We are speaking with Carol Lenig and Aaron Davis, two investigative reporters.

Speaker 2 Their new book is Injustice, How Politics and Fear Vanquished America's Justice Department. We'll continue our conversation after this break.
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Speaker 2 You know, the other moment here that's interesting is in September of 22, when the investigation is finally underway, Merrick Garland, the Attorney General, freezes both investigations.

Speaker 2 Well, you explain why.

Speaker 4 Well, this was one.

Speaker 4 You know, there are delays that were known about how slow and cautious and careful things had been under Merrick Garland. But this is a new one, and that is heading into the midterm elections.

Speaker 4 This is before Donald Trump announces that he's going to run for a re-election. This is,

Speaker 4 you know, with members of Congress on the ballot. Merrick Garland decides that, in effect, Donald Trump is now the de facto head of the Republican Party.

Speaker 4 And so, for that reason, we should not continue with these investigations in an active way where any steps that we take could become known publicly or people could be seen coming into into a grand jury room.

Speaker 4 And so we're going to take a pause. And this is a very common pause.
It's actually a regulation kind of

Speaker 4 best practice within the Department of Justice that for 60 days before an election, to kind of have a quiet period and then not do anything that could impact voters as they go to the polls.

Speaker 3 Aaron Ross Powell, but not typically for a person who's not an actually named candidate. Exactly.

Speaker 2 Trevor Burrus: Right. But what that meant was that

Speaker 2 dozens and dozens of agents, the spade work of filing subpoenas and interviewing witnesses, all that had to stop for a couple of months.

Speaker 4 There were a couple interviews that

Speaker 4 folks who were aware of this situation told us that

Speaker 4 they, by that point in time, did know and had

Speaker 4 indications that Donald Trump had shown people classified documents that he had retained in Mar-a-Lago, had been talking to people about them, and they wanted to go forward with these investigations and knock out those interviews as quickly as they could.

Speaker 4 And some of those did not take place then then for months during that quiet period.

Speaker 2 So Garland eventually names Jack Smith as special counsel because once Donald Trump is a candidate, we can't have the Attorney General of the guy he's running against trying to put him in jail.

Speaker 2 I mean, that appears to be a conflict.

Speaker 2 And I got to say, the stuff in the book about Jack Smith is very interesting, how when he's hired, he's in a hospital in, where was it, the Netherlands?

Speaker 2 He had a terrible leg injury and then just manages to just push himself through and get all this done.

Speaker 2 They filed the election interference case in August of 2023.

Speaker 2 Now, that's a few months before the presidential election, and the judge, Judge Chutkin, sets a trial date for April of 2024, which is right in the middle of the primary campaign.

Speaker 2 That's just really not a good look, is it?

Speaker 3 No, it turns out to be a weapon that Donald Trump uses very effectively against the Justice Department Department and against Jack Smith.

Speaker 3 I mean, I want to underline something, if you don't mind, from what you said earlier, Dave, which is about Jack Smith when he's appointed. His leg is broken in multiple places.

Speaker 3 He's in so much pain that he's literally waking up other people in the hospital with some of his screams, and he has to be moved out of that ward. And during this time,

Speaker 3 Garland calls him and says, would you take the job if I offer it to you tomorrow? Not realizing how damaged,

Speaker 3 how devastated really physically Jack Smith is. And there's a question about whether or not Jack can take the oath of office

Speaker 3 under all these painkillers he's taking.

Speaker 3 And he decides on his own to dismiss himself from the hospital against medical advice and stops taking the medication so he can properly take the oath without any question about his faculties.

Speaker 3 He goes on to push his team with incredible rigor to bring these cases. But back to your other point about this isn't a good look,

Speaker 3 it ends up being really terrible because even though Jack Smith and his team are sprinting to make decisions and to bring the cases they think are justified, Donald Trump is falsely claiming that the only reason he's being prosecuted now in 2023 with a trial in 2024 is because a left-wing radical DOJ wants to help Biden block him from winning reelection.

Speaker 2 You know, on that point, you know, we haven't yet really talked about the documents case that grew from President Trump's taking a lot of documents from the White House and then when asked for them back by the National Archives, you know, delaying and dissembling and misleading and eventually

Speaker 2 after a lot of painful soul searching, they execute a search warrant at Mar-a-Lago.

Speaker 2 Nobody really knows how much effort they went to try and avoid that, but they do that.

Speaker 2 And, you know, Trump and his allies went crazy about this Gestapo invading Donald Trump's private residence because

Speaker 2 he's their political target. And even agents of the FBI in many offices are sending angry emails.
What are we doing, right?

Speaker 2 The Justice Department really kind of needed to explain itself.

Speaker 4 Well, Dave, this is a really interesting part of the book where you see just how different internally the election interference case is from the classified documents case.

Speaker 4 And the night after they do that search of Donald Trump's residence in Mar-a-Lago, the then Assistant Attorney General for National Security, Matthew Olson,

Speaker 4 convenes this hasty conference call to talk about the documents that they've just gotten. And there's, you know, dozens of these and hundreds of pages.

Speaker 4 And he turns to this woman who's kind of considered the encyclopedia of the justice department when it comes to mishandled and classified documents julie edelstein and he says what do we do now and julie turns to and says if it was anybody else we would arrest him tomorrow

Speaker 4 and it just kind of for me crystallized how the fbi the agents you know these grizzled agents who did not want to go back and step into an investigation against donald trump after everything that happened through a crossfire hurricane felt compelled and had no choice in their minds to go forward with his investigation.

Speaker 4 That there was just too many

Speaker 4 really important documents, secrets of the government that had been left in the wind down there in Florida.

Speaker 2 The election interference case really went off the rails when the Trump team challenged the whole case by arguing that because Donald Trump was president when the alleged offenses occurred, he is immune from prosecution because he was pursuing his official duties.

Speaker 2 The trial judge disagrees, an appeal court disagrees, but the Supreme Court kind of agrees, right?

Speaker 2 They say that if he was executing actions in pursuit of his core functions, this is rough language, that he is immune from prosecution.

Speaker 2 Now, this, of course, could be further litigated, but essentially it means the end, right? Why?

Speaker 3 You know, it's such a critical moment, and I think I'd like to take you into a couple of the rooms where it happened here, because the Supreme Court, first off, immediately

Speaker 3 accelerates one case and postpones another. They accelerate a case in this junction

Speaker 3 in 2024 to hear an argument about whether or not Donald Trump should be disqualified and struck from the Colorado state ballot for reelection because he's been

Speaker 3 accused of insurrection, of being engaged in an insurrection, and that insurrectionists can't run for president.

Speaker 3 The Supreme Court accelerates on an emergency basis hearing that case, but they decide at the same time not to rush on hearing the immunity case.

Speaker 3 And this causes consternation inside the Department of Justice, inside Jack Smith, the Special Counsel's Office, and inside the chambers of trial Judge Tanya Chutkin, who's supposed to hear this case.

Speaker 3 She and her chief judge have been planning security for the event, but when they see the Supreme Court is slow-walking a decision on immunity, she knows that there's going to have to be an appeal again of whatever decision they have, and

Speaker 3 they stop worrying about having a trial at that moment. They conclude that it's very unlikely, and they stop having their security meetings.

Speaker 3 Immunity decision, again, is really interesting by how it reverberates when it comes down in July of 2024.

Speaker 3 Because inside Attorney General Merrick Garland's office, he is just shocked by the opinion and conveys to his aides, because he knows these justices personally, that they have to know that what they've written is wrong.

Speaker 4 That has another effect of that decision is that there was by that point in time a document inside Jack Smith's office that was a hundred-page plan for how they were going to to try Donald Trump for election interference.

Speaker 4 And so the folks in his office have to go back through and begin to redline and take out everything that they think could no longer be brought.

Speaker 4 And there were a lot of interesting things that they had, some that the public's never really heard about before.

Speaker 4 We have some details of the things that were taken out of that case that were going to be presented at trial, and that included a meeting way back at the beginning of COVID when Donald Trump was in a room with a bunch of Homeland Security and election security folks, and they were telling him about all the improvements they'd done in election security.

Speaker 4 And by the accounts of people in that room, he says, great, we should have a press conference and tell everybody how secure the 2020 election is going to be.

Speaker 4 And obviously the COVID hits and that press conference never happens.

Speaker 4 But it goes to the point of, you know, his understanding of election security evolved a whole lot over the course of 2020 and how secure it was after he ended up on the wrong side of the ballot numbers.

Speaker 2 Aaron Powell, Jr.:

Speaker 2 So Donald Trump, you mean he didn't want to declare that the election was secure?

Speaker 4 He never did. Yeah, they never had that press conference that they had talked about and encouraged his administration to have.

Speaker 2 We need to take another break here. Let me reintroduce you.
We are speaking with Carol Lenig and Aaron Davis, two investigative reporters.

Speaker 2 Their new book is Injustice: How Politics and Fear Vanquished America's Justice Department. We'll continue our conversation after this break.
This is Fresh Air.

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Speaker 2 You know, as I looked over the book book and looked at kind of the fact that

Speaker 2 the election interference case against Donald Trump, you know, ultimately didn't get developed in time to come to trial, the delay was critical.

Speaker 2 But when you look at how and why it happened, and a lot of times it's just normal human stuff.

Speaker 2 I mean, like the Justice Department was overwhelmed trying to prosecute the January 6th attackers, and so it was distracted.

Speaker 2 And the Michigan Attorney General had a problem with pursuing it, maybe because she was a Democrat seeking reelection.

Speaker 2 There are just a lot of factors and considerations that imposed caution and led to the delay.

Speaker 2 But I'm wondering, as you talk to FBI leaders about this now, do any of them express regret? Do they say, yes, we should have moved with urgency? Aaron Powell,

Speaker 4 I think the short answer is yes. There's several folks we've talked to for the book who feel terribly about how things have gone.

Speaker 4 I think you have to stand back and realize that in so many ways, Donald Trump benefited from a very cautious, very

Speaker 4 cross your T's and dot your I's Justice Department.

Speaker 4 He benefited from the very things that are not now part of how the Justice Department operates and that certainly, you know, he's said he has no interest in affording his political enemies, that they're, you know, he calls them criminals and they should be subject to prosecution.

Speaker 4 There no doubt were a whole lot of human moments

Speaker 4 in the last many years where

Speaker 4 Merrick Garland comes into office thinking that and telling people close to him that he feels like finally the fever of Trump and the first term has burst

Speaker 4 in the wake of January 6th and the country is finally going to turn as it did after Watergate and be ready to move forward together. And that was the moment he came into and that's really,

Speaker 4 as best of our reporting shows, what he firmly believed. And so he felt like he had a lot of time, you know, that

Speaker 4 the country was heading a different place. And so quickly it shifted.
And Trump,

Speaker 4 his base rallied behind him. And so it was a very moving target at the time that he was living through.

Speaker 4 But there's no doubt that it's a tragic point in time.

Speaker 4 And then, you know,

Speaker 4 in the calculus here of where things are, it's a point where you have to say that the Department of Justice is really only as good and as stable as the people who are there running it.

Speaker 4 And, you know, that has

Speaker 4 whiplashed a lot over the last 10 years of the period we cover.

Speaker 2 I want to ask a question that might be a little outside your lane, and you can pass if you want to, but I'm curious about it. You know, it strikes me that

Speaker 2 the American people deserved a chance to hear the evidence that the Justice Department had developed about Donald Trump's alleged interference and make a judgment.

Speaker 2 I mean, a jury, of course, would also make a judgment, you know,

Speaker 2 given the constraints of a trial and the legal arguments and all that, but it would have been a useful thing for the American public to really hear their case about what happened and hear Trump's defense.

Speaker 2 That didn't happen. But on the other hand, I think realize, you know, anybody who saw the January 6th congressional hearings,

Speaker 2 I don't know how you could see that and not be appalled by it. And

Speaker 2 it seemed there was a very persuasive case that Trump sought to overturn the results of a fair election.

Speaker 2 But it sure doesn't seem that a majority of American voters believe that, right? I mean,

Speaker 2 and I just wonder, do you think it would have made a difference in terms of his electability, in terms of how the American people feel about him if there had been a trial?

Speaker 3 You know, we actually, at the Washington Post, when I was there, there was a decent amount of polling polling we were doing, trying to talk to our readers and also just citizens across America about whether or not an indictment and a trial would impact their view of Trump if they were already Trump supporters.

Speaker 3 And some of them said it would change things for them to see that evidence. But remember, we're reporters who weren't rooting for a particular president.

Speaker 3 We weren't trying to push for one thing or another.

Speaker 3 But we know from our reporting how devastating the failure to get this before the American people was just based on facts being provided to the public.

Speaker 3 And the person who said that best, we learned about a private meeting of judges where a Republican appointee was meeting with others in the D.C. bench where the case would have been heard.

Speaker 3 And he's very, very well respected. Judge John Bates served as the chief of the Foreign Intelligence Surveillance Court for many years

Speaker 3 and has a broad support among Democrats and Republicans, or I should say appointments by Democrat or Republican judges. Very down the middle.

Speaker 3 And he said in this group setting, this was a huge failure of the American justice system, that these trials never saw a courtroom.

Speaker 2 Well, Carol Lenig, Aaron Davis, thank you so much. Congratulations on the book and thanks for speaking with us.

Speaker 3 Thank you. Thank you.

Speaker 2 Carol Linig is a senior investigative correspondent for MSNBC. Erin Davis is an investigative reporter for The Washington Post.

Speaker 2 Their book is Injustice, How Politics and Fear Vanquished America's Justice Department. We recorded our conversation last Thursday.

Speaker 2 On tomorrow's show, we talk with Misty Copeland, the first black woman to become a principal dancer with American Ballet Theater.

Speaker 2 She'll talk about her final performance, the personal and physical pain she endured through her life in artistry, and how Prince changed her perception of herself. I hope you can join us.

Speaker 2 To keep up with what's on the show and get highlights of our interviews, follow us on Instagram at NPR Fresh Air.

Speaker 2 Fresh Air's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham.
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Speaker 2 Our interviews and reviews are produced and edited by Phyllis Myers, Anne-Marie Baldonado, Lauren Krenzel, Teresa Madden, Monique Nazareth, Thea Challener, Susan Yakundi, and Anna Bauman.

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