Transcript

Basia Cummings: This is the story of a letter. Signed by ten men.

Every single one of them former defense secretaries of the United States. Both Republicans and Democrats, going all the way back to Dick Cheney in 1989.

You might have missed it at the time, but it’s something that we can already look back on as really significant. It was published just three days before those shocking scenes in Washington DC.

[Clip: News report of the riot.]

Basia: This was the invasion of Capitol Hill by rioters who poured into the sacred halls of American democracy – urged on, incited, by the President himself.

[Clip of Trump: “Fight like hell! Stop the steal!”]

Basia: The letter from all of those Pentagon chiefs published in the Washington Post explicitly warned the acting defense secretary and his subordinates that they could face criminal charges if they interfered in the outcome of the election.

And it reminded them that they swore an oath to support and defend the Constitution against all enemies, foreign and domestic. 

That they did not swear to support an individual or a party.

There’s never been anything like it. A letter, in which every living defense secretary is warning as one that the president is a threat to democracy and the military should have no part in that.

So I wanted to understand: what inspired this historic letter? Who organised it? Who was it aimed at? And what was it designed to head off?

To put it another way, I guess the question is, really: what did they think that Donald Trump was capable of?

I’m Basia Cummings and this week on the Slow Newscast, at the end of Trump’s four outlandish years in office, we are asking an unthinkable question: “Did the President of the United States just try to stage a coup to stay in power?”

[Clip: Secretary Chuck Hagel reads from the letter.]

Basia: Chuck Hagel was one of the signatories of that letter.

Hagel is a very American hero – he volunteered for the Vietnam War where he was an infantry squad leader, he fought alongside his brother and he was awarded two purple hearts.

He stepped back from politics after 12 years as a Republican senator for Nebraska, but then he was brought back by President Obama to serve again as his defense secretary at a time when US forces were still in Iraq and Afghanistan, as Russia invaded Ukraine, and as the Syrian conflict really rapidly escalated.

Secretary Hagel agreed to talk to us about the letter and he joined us from his home, just outside of Washington DC…

Basia: Can you tell me first how that letter came about?

Secretary Hagel: Well, some former senior defense department officials who served in the George W. Bush administration, they contacted me and said that they had written a draft of this op-ed and they were contacting the other former secretaries to see if we thought that it had any merit.

I did look at it and I made some changes. I talked to a couple of my former secretary of defense colleagues about it, and I think we all agreed that this was an important statement to make, at a critical time in our country.

We were in a very dangerous environment in this country. When you look at what had been said by President Trump, even before the election, but after he lost the election, he said it was fraudulent. He said the election was stolen. He encouraged his supporters to go out and change it. He made phone calls, intimidating governors of states, threatening governors of states. There was talk in the White House, with the president, about declaring martial law in the United States. About using the Insurrection Act to bring the military in.

He, the president, was talking about having military re-run the elections. This conversation was very disturbing and, judging from this president’s record the last four years, his erratic behaviour, his erratic conversations, we were all concerned that leading up to 20 January, we may see violence in this country, we may see bloodshed.

And, unfortunately, that’s what we did see. But we wanted to, in this op-ed, send a message to the uniform career military that their first obligation was to the Constitution that they swore an oath to, not to a president, not to a commander-in-chief, not to a political party, but the law of the land.

We are a nation of laws. We follow the laws. That’s the basis of our constitution, and free, fair elections are our bedrock in that peaceful transition of power from one administration to the other is critical. We also want to send a message to the citizens of this country to let them know the responsibilities we have as citizens, yes, but also the responsibilities of the military.

So, for all those reasons and probably a few more, we agreed to sign that op-ed, which we’re glad we did. 

Basia: So, just to be clear, to your knowledge, the reason for this letter coming into being was because of a particular moment and a sense that you and others had of an escalating threat, not because of a specific piece of intelligence or because you felt that there was something imminent that required this kind intervention from you.

Secretary Hagel: That’s correct. It was a combination, an accumulation of these actions and words, especially over the last 60 days that concerned us very much.

Basia: Was there a former defense secretary who was a controlling mind on it? Because one of our sources that we spoke to suggested that it was Dick Cheney, who was kind of initiating it and kind of calling round.

Secretary Hagel: As I said, it was the individuals, the former senior defense officials in the George W. Bush administration, and they first took it to Vice-President Cheney. And, my understanding is he was the first former secretary of defense who saw the letter and then they called me and they called the other secretaries as well.

Basia: We should just pause for a moment to take this in. 

The letter from all those ten living defence secretaries was organised by senior Pentagon officials who worked in the George W. Bush administration under Vice-President Dick Cheney and Defence Secretary Donald Rumsfeld.

Cheney was the first to see it and set off the process of gathering all the other former defence secretaries together to defend the constitution. Cheney and Rumsfeld. Remember, they’re the neo-cons behind the Iraq War and the War on Terror. We used to think that they were the outliers –and here they are, in a moment of danger, trying to hold the line.

It is also worth noting that Liz Cheney, the former vice president’s daughter, now a congresswoman and the third highest ranking Republican in the House, is the most senior member of her party to have voted for Trump’s impeachment in recent days.

“The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack,” she said.

Secretary Hagel: I think that letter was unprecedented, certainly in my lifetime. I don’t recall all of the living former secretaries of defense coming together with an opinion piece like that. All ten of us come from different political philosophies, backgrounds, we worked for different presidents, worked for Democrats, worked for Republicans, but we had this in common.

And, I think, in looking back over the last week especially, that message was important to send. And we’re not out of this time, either. I mean, we’ve got challenges ahead. And I think the damage has been done to this country, the depth of the polarisation, the political polarisation, the divide, which has caused great paralysis and great anger and bitterness and lack of trust, lack of confidence in our system, in our institutions and our leadership. That’s going to be with us for a while. I mean, I think we’ll get through it, but it’s going to be a long, painful way back.

Basia: One of the sort of key events, particularly with how the military have been used and played in by Trump, was that moment during the Black Lives Matter protests last summer, of course, with the sort of photo op outside the church.

What did you think when you saw that and was that what was in your mind when you signed this letter?

Secretary Hagel: That episode in Washington regarding Black Lives Matter was certainly at the top of our concerns. But, as I said before, it was an accumulation of statements made of actions that had occurred. And a lot of disturbing scenes that we had witnessed certainly over the last four years, but over the last two years. But it was just further evidence of the divide in this country, the bitterness in this country, the manipulation, the political manipulation of President Trump over his followers, the political manipulation by a lot of people for the wrong reasons, not to unify this country, not to bring this country together, not to, not to take this country forward.

Basia: I hope you don’t mind, but I’d love to sort of do a kind of close reading of a couple of lines in the letter because they really struck me as being in some ways quite pointed. There was one line, first, where you all say “the effort to involve the military” and I just wondered which particular effort you were referring to there, or again, were you talking about the sort of general militarised escalation?

Secretary Hagel: We were talking about the general military escalation. There had been conversations in the White House with the president about invoking the Insurrection Act – that means using the United States military to take control of all functions of government. That’s not the role of military.

In fact, we have a constitutional divide between the military and our civilian government. Our civilian government controls the military, not the other way around. The Insurrection Act would give the military control or everything.

That escalating conversation, and then the president talking about resorting to military law, martial law, in this country to have the military re-run the elections… that’s just astounding. That’s unfathomable. We’ve never had a situation like that in this country. It’s blatantly against the constitution.

Basia: And another line I wanted to ask you about is, you wrote: “Civilian and military officials who direct or carry out such measures.” And I wondered, is that pointed, were you thinking of, or referring to, specific people in that line?

Secretary Hagel: Well, not specific people, but we’re talking about the commanders, those senior commanders, in the line of the chain of command, when the commander-in-chief would order a commander to take some action, whatever action. That was addressed at all commanders who receive orders in our constitution.

In our military law, an officer can refuse to carry out any illegal order if they feel that the order is illegal. And, again, this is to remind our military leaders and our commanders of their responsibilities in the constitution. I have great confidence, great faith in our military leaders, these men and women are dedicated to this country.

There’s no doubt in my mind that, if it came to it, our military leaders would rise to the occasion and not carry out any illegal order if it was issued by the commander-in-chief. But we thought it was important to reinforce not only their understanding of the oath of office they take, but let them know that we, the former ten living secretaries of defense, and this country, the civilians of this country, would be behind them. If they declined to carry out an order, an illegal order from the president – that they had support.

Basia: Thank you. I mean, as you say, this letter is unprecedented, so it is so useful to hear you talk about sort of the ideas and the motivations behind some of those lines.

I wanted to move now to the events of 6 January, another unprecedented event in American history. What do you think happened on that day? What’s your interpretation of that day?

Secretary Hagel: Well, it’s pretty clear to me, as we are now assembling intelligence over the last week – emails and messages sent between these groups and political leaders – that the president of the United States incited these people to move to take action against the United States, because the invasion, the destruction, the occupation of the United States Capitol wasn’t something that just came out of nowhere.

The morning of 6 January, he spoke to the rally and he said: let’s march to the Capitol. The things that he has been saying, not just 6 January, that incited this, but all the other rhetoric of the last two months that brought all of these people together, all these armed people, all these people with intent to take prisoner members of Congress, and try these members of Congress as traitors.

Basia: How did you personally feel watching the events of the 6th unfold? It must have been a really horrifying moment for you.

Secretary Hagel: I was watching it on TV. It was horrifying to me as it was to, I think, every American citizen. What happened on 6 January has never happened in this country since the war of 1812. And that was a foreign enemy – that’s when the British invaded Washington and invaded the Capitol, invaded the White House.

And so I was horrified. The damage that was being done. The destruction. The people who obviously died. The complete lack of respect for this country, for its laws, for its people, was astounding.

We’ve never, ever seen anything like it.

Basia: And the word “coup” has been used quite a bit over the last week to try and interpret what happened and to understand. Is this a word that you would use? Do you feel comfortable using that word?

Secretary Hagel: Well, I think it’s an appropriate word. I don’t think it overstates; I mean, especially now, as we are a few days away from what happened, we’re picking up intelligence, we’re picking up emails, we’re picking up a lot of things that we didn’t know on 6 January about what the intent was of these people. The intent was to overthrow the government. 

Basia: And I suppose part of the reason that we might feel reluctant to use these words is because, in some odd way, a lot of what happened on the 6th had sort of been normalised for us. We had been prepared for it by Trump’s rhetoric. We knew that he was going to try and do something. And, in that sense, that might have inured us slightly to what ended up happening.

Secretary Hagel: Well, that may be – and, as I’ve said, that’s what incited it and led to it. And that’s been going on for months, months before the election, as he said, months and months before an election: “If I lose this election, it is because it was stolen from me.” It was because it was fraudulent. And he said many times before and after the election: “We need to take the country back.”

Well, what does that mean to you? That’s a pretty clear indication. We need to take the country back. That’s a coup. That’s a signal for a coup. So, yes, we were prepared for something. Unfortunately, we were not enough prepared, we should have been prepared much, much better. There’s no excuse for that.

Basia: Indeed. Mr Secretary, thank you. I wondered now if I might ask, if you could read a couple of the key paragraphs from the letter that you signed, because it would, it would really help, I think, our listeners understand some of those key points that you made.

Secretary Hagel, reading: “Efforts to involve the US armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory. Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic.

“Acting defense secretary Christopher C. Miller and his subordinates – political appointees, officers and civil servants – are each bound by oath, law and precedent to facilitate the entry into office of the incoming administration, and to do so wholeheartedly. They must also refrain from any political actions that undermine the results of the election or hinder the success of the new team.”

Basia: And finally, Mr Secretary, do you feel that Trump should be facing criminal prosecution?

Secretary Hagel: Actions have consequences. Every one of us, regardless of his or her station in life, is accountable. The president of the United States certainly is accountable to the people in the United States. Any elected official in a democracy is accountable to the people of  the United States. This isn’t an authoritarian government. This is not a dictatorship. Democracies are about accountabilities. That’s the only way democracy can work.

Fiona Hill: The way that Trump thinks about the presidency is that he’s the king and he’s in charge. He thinks of the presidency, really, in terms of being the head of state and almost like being an elected king, an elected monarch.

Basia: That’s Fiona Hill. She’s a Russia expert and was part of the Trump administration’s national security team.

And her story is pretty amazing. She was brought up in a working class family in Bishop Auckland in the north-east of England, she was the daughter of a midwife and a coal miner, and when the last pit closed her dad Alfred dreamed of making a life in the US, but he never actually left his home town in the end.

His daughter did, though. She became a Russia expert, a dual American-British citizen. She has served as an adviser to three presidents: George W. Bush, Barack Obama and, most recently, Donald Trump.

You might remember in 2019, after she left the White House, she was a central figure as a witness in the first Donald Trump impeachment hearings. (And it’s remarkable now, isn’t it, that we have to distinguish between Trump impeachments?)

Then, she told Congress about the way that Trump’s political team had tried to create a false narrative that it was Ukraine, not Russia, that had interfered in the 2016 US election. 

[Clip: Fiona Hill at the Congressional hearing.] 

Basia: That time, Trump was impeached after a whistleblower revealed that US aid to Ukraine was being blocked by the president. And it was being blocked because Trump was trying to pressure the Ukrainian government to open up a corruption investigation into Hunter Biden – Joe Biden’s son. 

And I have to say that sometimes, reading this stuff out aloud, you can’t help but marvel at what an astonishing and relentless soap opera the last four years have been in American politics – after the events of the last two weeks, it’s easy to forget that there were accusations of collusion, the whole Mueller investigation, the Stormy Daniels scandal… 

And, actually, Fiona Hill – working in the White House throughout 2017 to 2019 – had an insider’s view on so much of it; up close, working with Trump.

So I wanted to know how she read the events of 6 January, the storming of the Capitol. Given all that she knows about Trump and his attitude to power. 

Fiona Hill: Well, his whole attitude towards power was: it’s personal. He didn’t seem to believe in any checks and balances. He had a complete fascination with Putin, but not just Putin, with anyone that he thought had autocratic or absolute power. So he wants to be them, the people who were able to operate without any impediments whatsoever.

And that was really, you know, I think at the root of the fascination with Putin, that everybody in it becomes so concerned about. It wasn’t doing Putin’s bidding, or kind of thinking about Russia in any specific way. It was just: this is the kind of man who’s doing the kind of things I want to do, too.

He was sort of claiming America as his crown and his throne, hundreds of years after the United States threw off Britain. So, I mean, there’s some of the kind of comical aspect to this. It’s very sad, as well, but it’s also tragic and extraordinary, dangerous.

Now, of course, in the two years that I was there, I became increasingly concerned about our own domestic political situation. And by the time I left the national security council in July of 2019, I’d become frankly more worried about domestic threats to our national security than I was about the external environment, which of course is still very serious.

Basia: So let’s plunge straight into what happened on 6 January in Washington. It was a truly terrifying bewildering moment. What did you see happening on that day?

Fiona Hill: Well, the point was 6 January wasn’t a one-off. You have to look at the larger context. I mean, it was very shocking to see a mob storming the Capitol building, and basically penetrating into the halls of this building and trying to hunt down members of Congress in the Senate.

But there was a great lead up to this. And I think that that’s the most important thing to see, the context. So people have been deliberating: what was this? Was it a riot? Was it an insurrection? Was it an insurgency? All kinds of labels apply to it. But, again, this was one episode in a whole series of efforts by President Trump to try to stay in office and to overturn the results of the November 2020 election.

Basia: And so you have publicly and quite forcefully made the argument that this was a coup, that’s the word that we should use for it. So take me through that. Why do you think that it’s a coup and what is your sort of checklist that you think means that meets that bar?

Fiona Hill: It was a certain kind of coup. It was a self-coup. And I think that that’s a kind of a difficult thing to see, because clearly President Trump was still in power when this all occurred. So I think that’s what makes it, in the first instance, quite difficult for people to contextualise.

The second point is that most people tend to think of coups as sudden and involving the use of the military, the deployment of military or paramilitary force to seize power. And, of course, that didn’t happen either. We saw a mob and many of the participants in this model actually armed and wearing body armour and weapons of some description, even be it flag poles and crutches that we saw them deploying against the Capitol Hill police.

The United States military didn’t take part in this. In fact, they stepped back.

But if we look at the broader context of the actions that President Trump has taken since the presidential election in November, we can see a broader pattern. So he did try to manipulate the military into supporting his efforts to stay in power.

We’ve seen, over and over again, President Trump refer to the generals in the military as his generals. We saw, during the Black Lives Matter protest in the summer, President Trump draw out the chairman of the joint chiefs of staff, General Milley, and also the defense secretary, Mark Esper, into a photo op outside a historic church near the White House, in which he had paramilitary units from the Park Service, the Secret Service, services who were basically manning the perimeter of the White House, clear out peaceful protest from that square so that they could walk across.

There was a huge blow back after this because everybody saw that the president was trying to manipulate the military. And, after that, General Milley admitted that he’d made a big mistake, as did the defense secretary.

The other thing here is, the president has manufactured a constitutional crisis. He lost the election.

And the second element of this is, you know, what I and many others are calling the Big Lie: he’s used communications, the media, to basically assert that he won the election; that Joe Biden illegitimately stole the election; the Democrats stole the election; a whole variety of other forces – a kind of manufactured domestic enemy involving all kinds of different people, movements, groups – stole the election away from him.

And so this is a constitutional crisis that he’s trying to rally his supporters behind. And he’s been saying this for months, even before the election, whenever his poll ratings dropped. So we already prefigured this.

Basia: Yeah. So, in your view, from the military, in terms of trying to play them in; to his use of communications and even the Post Office in his legal challenges to some of the results; to the way that he’s been treating government institutions… that is a sort of  checklist of things that he’s been doing that would suggest to you that this was a sort of organised, clear endgame for him.

Fiona Hill: Yes, that’s absolutely right. Now, the organisational side of it is rather complex because there’s also a lot of evidence that many people were organising themselves online through Facebook pages, Twitter, all kinds of right-wing websites…

Basia: Parler…

Fiona Hill: Parler, exactly. There’s not a great deal of evidence that he was directing this, but of course he was inciting it.

And this is, again, where the communications comes in because in traditional coups, in history, you saw people storm the Post Office or the Telegraph to try to seize control of them. As you mentioned, he put a loyalist in charge of the Post Office and he was trying to slow down the delivery of ballots during the election.

And he already started to discredit this and said it would be rigged. And he’d already made efforts to slow down the delivery of the ballots to, in effect, render them ineligible to be counted because of the delay in delivery.

Then, if you think about the Telegraph, there is no Telegraph these days, but there’s Twitter. And the president had an account on Twitter with 88 million followers. And Twitter became like the Telegraph, a medium of direct messaging. And so the president was able to seize the airwaves, so to speak, Plus he had Fox News, Newsmax, One America Network.

He was able to use Facebook very effectively. And, for a long time, none of those outlets refuted his lies. Under the guise of free speech, he was allowed to lie freely about events and what had happened. And so he is not repudiated at any point. And others of his supporters and others of many people in the media, uh, the idea that he won the election.

He did seize control of communications in various, very effective ways. And Twitter, Facebook and other social media platforms realised it somewhat belatedly and cut him off.

Basia: It’s curious, isn’t it, Fiona, that we all knew that this was coming? We all were watching Trump, listening to him, hearing the Big Lie, as you say, and in some ways the fact that it was so in front of all of us, we were all watching it happen, strangely gave Trump some protection because it became normalised. So that we sort of were watching this slow-moving, as you say, sort of self-coup, and yet somehow that stopped anyone from acting or from trying to do anything about it. How do you see the sort of openness of what he was doing?

Fiona Hill: Yeah, this is spot on because normally, again, in a coup – which is why a lot of people will find it very hard to get their heads around this – you have a clandestine conspiracy and there are things that are happening on the dark web, all kinds of exchanges with right-wing groups and various supporters of the president that might not have been in plain view for everyone else.

But every single thing that President Trump did was obvious. He was the same person, as I learned from my interactions with him in the first parts of the administration, when I was there, the same person in private and in public. There is no secret about anything that he does, and the fact that somebody acts in public like that does, you said it, normalises it and it makes people think, well, that’s fine then there’s no secret plot here.

He’s doing everything and no one is reacting. And that is also the problem. He did get pushback from people to these efforts, and he sacked many of his Cabinet officials who tried to stand up to him to resist it. He also, of course, threatened –  again, publicly – members of Congress from the Republican party who didn’t want to go along with this effort to stay in power.

And, again, he telegraphed that he wanted to stay in power. For the first two years, when he was under the scrutiny of the Mueller investigation, he constantly talked about the fact that he was being cheated out of his term as president, that he was being treated unfairly. He said this at every single turn. He wrote it over and over again on his Twitter feed, and every rally he talked about this and, basically, everyone became just inured to the fact that he was basically saying that he deserved not just one but two terms, and maybe even three terms.

And at one point in various interviews, he talked about endless terms. He talked about no term limits. Whenever he heard about, say, a President Xi of China busting through the ten-year limits that there used to be on senior officials and the Chinese leadership and there was supposed to rotate, or someone like President Erdogan in Turkey, you know, staying in power… or you think about Vladimir Putin and Russia, who this year, in 2020, also put in motion amendments to the Russian constitution to be able to stay in the presidency, theoretically out to 2036… Trump would say something like, “Well, that’s great. Maybe I could do the same thing.” And he said it so often that people said, “Oh, you know, he’s just saying it.”

So you can see here some of the same hallmarks. I mean, essentially, this is an authoritarian playbook that many of us are familiar with, but people were just incredulous that President Trump would try it.

Basia: That brings me really perfectly to my next question, which is about Trump’s sort of four-year long attempt to stress-test the American democratic system. But where do you think the gravest stress fractures have appeared? Where do you think that the real damage has been done and how will we get out of it?

Fiona Hill: Well, when you start to go down this checklist again, and then you see who pushed back, I think we can be heartened by the fact that there was a lot of pushback at the state and local government level.

So American federalism, the fact that there’s a lot of devolution of authority to the States, really, I think, helped to save the day, in this regard. Because, in the US elections, there was a lot of complex oversight. The whole structure is actually very complex and makes it very difficult for it to be manipulated from the top or even penetrated from the outside.

You have the states’ electoral officials and all of those did their job and they did their job in a really admirable fashion and they pushed back. And when we saw the president haranguing state election officials calling them to the White House, calling them on the telephone, they all stood firm. They rejected his efforts.

Also the courts, the court system, because the president did try to stack the judiciary. Now he called them his judges, but of course they were conservative judges who were pushed through and appointed by the Republican members of Congress and the three Supreme Court justices that were pushed through in President Trump’s term. But he kept talking about them as his judges and his justices. And he was convinced that they would sway things in his favour. They did not.

And he got an unprecedented number of votes. Joe Biden got an even larger unprecedented number of votes, but nonetheless President Trump has a significant base. And members of Congress, even after the events of 6 January, Republican members of Congress didn’t step back from their efforts to challenge.

Basia: But those Republicans in Congress, quite probably scared to have Trump target them on social media and destroy their careers, went along with his fiction about a rigged election.

Fiona Hill: That’s why we have a major problem because we have members of Congress who were not telling the truth about what happened to their constituents. And we now have millions of disaffected people who still believe that the president won the election, even when Joe Biden was officially confirmed in office.

Basia: Fiona Hill sat in on hundreds of Trump calls at the White House, so when the tape emerged recently of Trump putting pressure on the Georgia official Brad Raffensperger to, in his words, “find 11,000 votes,” well, it sounded pretty familiar…

Fiona Hill: I mean, obviously, seeing that happen, that was really something completely dramatic. And, obviously, I was involved as a fact witness in the impeachment in January of 2020. The impetus for that impeachment trial was a similar phone call to the president of Ukraine to cajole, intimidate him, in effect, into launching a spurious investigation into then presumed presidential candidate Joe Biden and his son Hunter Biden.

All that he was thinking about was reelection for the whole… from the beginning of 2020 onwards. And obviously before that, too. And the anticipation of trying to ensure that he got a second term.

And so, so many of these phone calls and these efforts were very tied just to the very narrow personal agenda of keeping himself in power.

Basia: Did you find it slightly surreal to find yourself serving in an administration that was starting to sort of ape some of the leaders around the world that you had studied for so many years in your close study of authoritarianism?

Fiona Hill: Of course. And, really, it’s a cautionary tale. I mean, one of the reasons that I did also decide to go in was I had a lot of discussions with friends and colleagues who, like myself, have looked at authoritarian regimes in other countries. And we were all concerned as to whether US democratic institutions would be up to the test – you could see that our society was very vulnerable.

The biggest source of conspiracy theories these days is the United States itself. Truth has broken down here, too. We’re no longer a fact-based society any more, in the way that we were.

So I did really feel, too, that we had to pull together. It’s not just my view, but everyone else’s view, to try to do something.

So there was that sense of concern and trepidation. I did anticipate that the institutions would hold together. And as I said, I think they have. But, boy, have they been damaged as a result?

Basia: The amazing thing about 6 January – that terrible spectacle – is that everyone saw it coming. Trump talked about it for months, and drove his most ardent supporters to Washington to “save” their country.

And yet, still there was so little done to secure Congress. It was as if the very openness of it, the mouthiness of it on Twitter, gave Trump and his supporters cover.

But let’s just recap. Because five people died, including a member of the Capitol police. 

Rioters invaded the Senate chamber and ransacked offices.

Elected representatives had to hide in terror, making frantic calls for military back up.

More than 70 people have now been charged in connection with the violence, including many of them who were captured in viral pictures and videos. 

The FBI has reported credible intelligence of plans for armed protests at all 50 state capitols on inauguration day.

And then, Trump – banned from every social media platform – has been impeached again, the first president in history to be impeached twice.

But there’s more. Did Trump break the law to hold on to power?

We know he is going to face an impeachment trial on a charge that he incited insurrection. If he’s found guilty by senators, he could be barred from public office in future.

But the question is: could he also face criminal charges and jail time? I wanted to hear from somebody with experience of prosecuting public corruption, so we tracked down Randall Eliason.

Randall Eliason: I was a federal prosecutor in Washington DC for 12 years. I was the chief of the Public Corruption and Government Fraud Section at the US attorney’s office in DC. And then, since leaving the Department of Justice, I have taught a course on white collar criminal law at George Washington University Law School.

Basia: I wanted to hear from Randall because he’d written two articles in the past few months about Donald Trump and the law. In November, after the election, he wrote an article headlined ‘The case against indicting Donald Trump…’ and then, after the Capitol Hill riot, he wrote again – and it’s fair to say that he seemed to have changed his mind.

Randall Eliason: I actually wouldn’t say that I’ve changed my mind. What’s changed are the circumstances.

In that article, I was making a sort of general argument about the policy against indicting former presidents, having an incoming president of one party prosecute the outgoing president of the other party.

That’s something we’ve never done in this country. I mean, it’s routinely done in some countries. We’ve never done it here because of the risk of using criminal law to sort of punish political differences or policy differences and try to characterise them as a crime. To use your justice system, your justice department, as the president, to sort of go after your political rivals… that’s a real danger and something we’ve always tried to avoid.

And in November I argued that, on balance, a lot of Trump’s misconduct, although appalling, was not actually criminal. To me, just the balance came down on the side of saying, based on what we know now, there’s not enough to justify a criminal prosecution unless things change.

Basia: And things have changed, right?

Randall Eliason: And things have changed, right? Because then the second article, two months later, in the aftermath of the riot at the Capitol, was essentially: look, I, still agree with our vote in November, but now this is on a completely different level. This is not something where you could even potentially argue we’re criminalising policy differences or political differences. I mean, this inciting, this riot has absolutely nothing to do with any even arguable, legitimate exercise of his presidential power. Right? This is, this is just an assault on our most fundamental institutions.

And, to me, that’s on such another level from anything we’ve seen before that the balance changes. And now we’re talking about something where I think it would be completely appropriate to at least investigate.

But there’s a lot we don’t know yet, in terms of emails, text messages, what other communications took place that could shed a lot more light on what happened. 

Basia: What of what we do know do you think clears that legal bar?

Randall Eliason: Yeah. There is sort of a pattern of conduct. The weeks leading up to the rally, with kind of repeated tweets and messages to his followers. The one in particular was: come to DC on 6 January, big protest, it’s going to be wild, something like that. So there is the pattern of the repeated false claims of fraud, kind of whipping up the followers with these constant lies about the election, encouraging them to come to DC, to fight for Donald Trump.

But the main thing is the speech itself, right before the riot, whipping up the crowd for more than an hour, again, with the repeated lies about how the election has been stolen from them. The Democrats are defrauding the country. You’ve got to march down and take your country back, stop the steal… 

[Clip: Trump speech on 6 January.]

Randall Eliason: I mean, the one you see a lot, and I think they included in the impeachment resolution, says to the crowd: “If you don’t fight like hell, you’re not going to have a country anymore.”

I mean, you repeatedly tell a crowd like that that they’ve got to go fight… does he think they’re going to walk down to the Capitol and link arms and sing Kumbaya? I mean what does he think they’re going to do, you know? I mean, all this language certainly implying some kind of violent action to stop Congress from what it’s doing and suggesting it. I think, in the context overall, I would feel pretty comfortable arguing that that was his intent. That this crowd ended up doing exactly what he wanted and hoped it would do.

And just sort of physically tried to stop Congress from certifying Joe Biden as the winner of the election. In the US, the First Amendment does protect political speech. And so it’s a pretty high bar to try to prosecute somebody for speech, even if they’re using sort of rhetoric about fighting and, I mean, that’s not uncommon in political speeches. We need to fight for our rights, things like that.

But, in this case, given the crowd that’s in front of him, the nature of the crowd in front of him, everything that led up to the speech, the rhetoric itself and then the sort of imminence of the potential harm, it’s not… he’s not at a rally in Florida where he’s saying nasty things about Congress. He’s telling them right there. Now go march down the street and stop Congress.

So imminence is an important factor in the constitutional analysis, as well. And here, not only was the speech designed to incite imminent violence, it actually did. He knows this is a whipped-up crowd, right? Potentially violent. And then he’s not trying to calm them, he’s trying to rile them up even further.

And then, to me, one thing that I think is particularly important in trying to decide what his intent was is what he did once the rioting started – and this is actually some of the most damning things, to me – once the rioting started, the reports are that he didn’t try to stop it. He was sitting in the White House, sort of enjoying it, you know, thrilled about what was happening, excited, still calling members of Congress, trying to get them to stop the voting, and overturn the election. When the mayor asked for support from the DC National Guard, reportedly, he resisted that and hesitated, and it was only Vice-President Pence who finally agreed to send in the reinforcements.

And then, more than two hours later, after President-elect Biden has already issued a statement calling for the violence to stop, he finally, kind of grudgingly, makes this brief video statement to tell the supporters to go home. But in that statement, he also says things like, you know, he repeats the lie that the election was stolen. He says we understand you…

Basia: “We love you…”

Randall Eliason: “We love you! You’re very special. We love you, but it’s time to go home.” So, you know, if this crowd has not done exactly what you wanted, do you record a statement saying, “Hey we love you. Great job. Be proud.”

[Clip: Trump’s video address.]

Basia: So if a prosecution was successful, what kind of penalties might be in store for Trump? What would it mean if he was convicted? And what would the charge be?

Randall Eliason: The charge that I think is most likely is a crime called seditious conspiracy, which is basically a conspiracy to sort of overthrow the government, or do violence against the government, or use force to prevent the government from functioning or prevent the laws from being executed. So the argument would be a conspiracy to use force to stop Congress from certifying this vote, from declaring Biden the winner. 

And that certainly seems to pretty accurately describe what was going on here. That carries a maximum prison penalty of 20 years in prison.

Basia: And so, in your legal opinion, what do you think should happen?

Randall Eliason: I think what should happen is, once he’s out of office, the Justice Department should convene a grand jury investigation to start gathering all of the information about this incident on the sixth. All the text messaging back and forth between the different parties, all the emails back and forth. Having witnesses come in to testify about things that Trump did and said before, during and after.

There’s a lot more information if a prosecutor was trying to piece together proof of the president’s intent – and the best way to do that is by a federal grand jury.

Basia: So do you think that has a chance of being a successful prosecution? If it does go ahead.

Randall Eliason: I do, yes. To me, looking at the case right now, and especially after a grand jury investigation to gather additional evidence, if I’m a prosecutor, I think I’m feeling pretty good about this as a potential criminal case. But there’s still  a lot of work to be done and a lot to be looked at before professional people actually in charge of that decision could make a judgment.

Basia: So, even as America turns the page on Trump, the story of the havoc that he wrought is not at an end.

Trump clears out of the White House, knowing that at the very least an impeachment trial in the Senate is going to follow.

No doubt, that will eat into time that probably could have been better spent fighting Coronavirus and firing up the US economy.

And it’s also highly likely that the process will end in his acquittal – not because the evidence is lacking, but because at least 17 of the 50 Republican senators would have to join the Democrats in finding him guilty.

So some people, understandably, they just want to move on from Trump. Others say it is essential – for the historical record – to gather and lay out the evidence of what the president did as he tried to cling to power.

And apart from his own legal jeopardy, there is still so much more of the Trump Effect to play out: the future of the Republican party that he hollowed out; the state of a country so profoundly divided; and a public discourse that’s now riven with lies.

And Trumpism will go on – not as an ideology or a set of causes – but as a rallying point and a way of behaving and thinking.

Trumpism will live on as a bad attitude, as a vessel into which people can pour their grievances.

Trump drew his supporters to Washington with a tweet promising that “it will be wild!”.

And he wasn’t wrong. It has been a wild and dangerous four years.

The Trump era started with an assault on enemies abroad – an army of Russian hackers and trolls trying to subvert the 2016 election and to divide America.

And it ends with enemies within. Rioters storming the most sacred halls of American democracy to try to overturn an election – urged on by the president of the United States.

And I think it’s worth rewinding to the start. Remember when Trump was sworn in as president in January 2017?

He stood before the dome on the Capitol and painted this bleak picture of a country of “rusted factories scattered like tombstones across the landscape”… of drugs and gangs… and of ravaged borders.

“This American Carnage,” he called it. And he promised: “We will make America safe again.” 

Well, four years later, he leaves behind an indelible stain on American democracy: violence and death on Capitol Hill.

And blood spilled at the very spot prepared for the ceremonial swearing-in of his successor, Joe Biden, as the 46th president of the United States. 

America turns the page, but can anyone bind up the nation’s wounds?

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credits

Producer: Gabriela Jones
Host: Basia Cummings
Music: Tom Kinsella
Editor: David Taylor