Transcripts For CSPAN2 Virginia Bar Assn. Discussion On January 6 Committees Work 20220727

6th Committee Member jamie raskin. Hes part of the discussion that included the committees chief investigative counsel and retired federal judge Michael Luttig who testified at the hearings. This Virginia Bar Association event is about 90 minutes. [applause] steve, thank you soso much. I want tot intern thank steve busch, Paul Atkinson for their exceptional work and also richard called in for the that he did to get this up, put this program together. The events of january 6th are seared in our memories, and i use that verb appropriately. The only connection, the only other examples i can think of is 9 11. Anything probably because in each instance we actually saw it in real time, almost as if we were there. But we have to get past those images and we have to ask ourselves why did it occur, who i what is responsible, and perhaps most importantly for our discussion today, how do we prevent it from happening again. And thats why this panel and these four individuals are so extraordinary, and particularly so that we could hear them all together. We willd spend the better partf an hour with each one of them giving us their thoughts and perhaps ill have a followup question or two, and then we will do the audience questions. And at the end of this 90 minute period i suspect we will know more than we already do about these critically important events. So our panel is, truly is extraordinary. Most of us if not all of us have seen congressman raskin on television, and if you had concluded that he is erudite and scholarly, you would be correct. He is a magna cum laude graduate ofva Harvard College of phi beta kappa, also magna cum laude from harvardoo law school where he ws an editor of the harvard law review. And for 25 years he was a professor of constitutional law at american universitys Washington College of law. We will next year from Timothy Heaphy who is the chief investigative counsel to the select committee. He is, for those of you who hold this in great owner, he is a double who. [applause] those of us at Thomas Jefferson of the university salute you. He also interestingly enough worked for senator joe biden he graduated, and he has been an partner at both Mcguire Woods and hutton williams, now Hunton Andrews kirk we will next year from judge Michael Luttig, perhaps the most famous tweeter with 81 exception [laughing] although i like your tweets whole lot better. His very first tweets are in your Program Materials on page nine, and i would encourage you to look at them because they are momentouss and perhaps changed American History. At 9 53 a. M. On january 5, he spoke by twitter with the Vice President to indicate to the Vice President why therede was only one correct constitutional course of action. Betsy woodruf0 years out of her college. She has worked for National Review as the William F Buckley fellow. She went to the washington examiner, slate, the daily beast, and is now a respected reporter at politico. She is also a contributing to msnbc. She has appeared on cnn, fox news, and msnbc. I am nominating her to be a Diplomatic Correspondent after this panel. We will begin with congressman raskin. Before i do that, we had initially expected to have one other contributor to this panel, congressman morgan griffith. Due to unforeseen circumstances he cannot be with us today. He had intended to talk with us about the letter he and 36 other congressmen road prior to january 6 explaining why they would vote against the acceptance of ballots from four states. I think its important to note after january 6 had occurred, he went to the inauguration out of respect for both the president , President Biden and the president cy. On february 11, he wrote a letter to his constituents after hearing from 4000 of them in southwest virginia. That full letter is in your materials. I want to quote from it. The counting of the electoral votes in congress ended the constitutional process of the 2020 president ial election. As expected, resulted in a victory for joe biden. This election was not the first president ial election with controversy, nor will it be the last. No matter whom you supported in november or what you think about the process, joe biden is our president now and deserves our respect. It is time to move forward. Those of the words of congressman griffith. Today is we move forward i will ask congressman raskin, sir, you are the foremost expert on january 6 in Congress Based upon your four Different Committee assignments, but also because of the leading role you had played, including in the impeachment. You are also, and i say this with full confidence, the foremost constitutional expert of the 535 numbers of congress. Share with us your thoughts. We may have you take it away from there. Rep. Raskin whenever somebody calls me the foremost expert in congress, i hear them damning me with faint praise. Thank you for the introduction and thank you for having me. For these opening remarks, should i stay here . Justice mims probably stay there. Rep. Raskin that tells me you maybe wanted to be shorter than anticipated being. Eight or nine minutes . Justice mims absolutely. Rep. Raskin i just dont want them to be surprised when i launch into a little discourse here. Justice mims about 50 minutes like a commonlaw class. Rep. Raskin thank you so much, justice mims for inviting me, and thinking to richard cullen. Thank you all to com for coming and inviting a maryland or to cross the potomac ocean to join the virginia bar in this important discussion today. I was thinking on my way here about Thomas Jefferson, as you always have to do when you enter virginia. I heard a story about him when he was ambassador plenipotentiary to france. Whenever he would toast the people of france, reportedly he would say that everybody on earth who loves freedom has two countries, his or her own in france. I was thinking coming over here that every american who loves the constitution has two states his or her own in virginia. Our constitution was written here by madison and jefferson and george mason and george washington. I dont think there are any other state second quite vye with a cast of founders you sent into battle. I guess new york had hamilton and timothy pickering. Massachusetts had the ad amss and ben franklin he ran away from the puritans in massachusetts. Nothing really comes close in terms of what madison and jefferson gave us. Especially madison with the First Amendment and the idea of separating church and state, the great radical breakthrough of the american constitution. For centuries human beings had lived with theocracy and holy crusades and inquisitions and witchcraft trials and all that. It was a virginians who insisted that everybody be allowed to worship exactly as he or she pleased. The question of faith. Between up person and god the question of faith was between a person and god. It has to do with reason and facts and data and not superstition and conspiracy theories and, you know, someone. So on. Leah will be dead of gratitude to the virginians we owe a debt of gratitude to the virginians. The history of your state is important to the fate of our i i wanted to start by telling a little story because what is a convention without an Oliver Wendell holmes story. The story about Justice Holmes is that he was a famously absent minded guy, and he got on a train at Union Station in d. C. , and headed north and he couldnt find it ticket you had been and he had been looking for his ticket, and he was very upset, and he was looking at a seat and looking at the seat pocket and his jacket and everything. His conduct the conductor said we recognize you. Dont worry about it. But he kept looking for the ticket and he was looking hundred seats, and the conductor said, you dont have to worry about it. We know you have a ticket. You are good for it. Justice holmes said it isnt wheres my ticket, it is where are we going . That is the question for us. Where we going. Were still in the middle of our hearings in the middle of the work of our community committee. In a historical sense, it was not that far away from where we are, so maybe it is too early to say, but i wanted to offer just three thoughts that might provide some clues about where we are going or where i think we ought to be going. I would state them as obvious truths. Others might see them as political provocations, in the nation of my business. I thought i would offer these from a constitutional perspective to help frame our thinking about where we are going. So, i start with what i think clear to everybody watching. By show of hands, how many have been watching the hearings . Good. How many are boycotting the hearings . We have one over there. You dont know what youre missing. I think the hearings tell a story of a violent insurrection, in aid of an attempted political coup. A coup is an odd word to use because we dont have a lot of experience with them, and we think of that is something in the military against a civilian power, but the political scientists have identified a different kind of coup. A self coup. A leader decides to go out against the Constitutional Order in order to perpetuate his stay in office. That is an exact description of what took place here. I want to make one point about the original constitution. How it conceived of insurrections. I want to make a point about the spirit of the evolving constitution. It has changed since the original constitution. Then i want to make one final point about the necessity of what i call constitutional patriotism. My first point is an answer to two kinds of things i have heard from my fellow countrymen, and also from colleagues. We heard the cry of 1776. This is our house. We are the people. We are taking it back. The president invited us to be here. This belongs to us. So on. All in the course of attacking and assaulting our Police Officers, and more than ended up with broken arms, fingers, legs, toes, concussions and traumatic brain injuries. Part attacks part attacks, strokes, broken neck, and several of them died and took their lives in the days that followed. This is an attempt to respond to my colleagues who continue to argue that there is something with the Second Amendment. It gives people the right of violent insurrection. Armed insurrection against the government. So, the first point is, it states in obvious constitutional truth. There is no equivocation to the gravity and danger of what happened on january 6 did our constitution rejects insurrection at every turn. It considers insurrection the very opposite of republican government. It considers insurrection a threat and a danger to government by the people. It considers it a replacement of the deliberated will of the people through elections, and through governmental deliberation and discussion. It is a replacement of the will of the people by the violent will of some small fraction of the people. Second, i invoked hamilton. He warned of a politician who knows how to stir up the negative emotions of the mob to destroy our political institutions. Hamilton said they begin as demagogues, but they end as tyrants. They devour the freedoms and liberties of the people. These sentiments and that analysis were inscribed in the constitution. Madison, who recoiled from and rejected the violent fury of shays rebellion insisted on protecting states with a federal guarantee against internal violence and this became the genesis of the republican guarantee clause in the constitution which says that the United States shall guarantee to every state a republican form of government and protect each of them against invasion and on application of legislature or the executive, against Domestic Violence. There are multiple other places in the constitution where the founders reject violent insurrection. Such as in clause one. It defines treason as leveraging levying war against the United States. What is a violent insurrection . It is levying war against the country. Article one and 12 and 13 authorize congress to create a Standing Army and section 15 gives congress specific power to call forth a militia to execute the laws of the union, suppress insurrections, and repel invasions. When bands of dangerous extremist show up show up in the federal city, as a collection of melissa, and say they have the true sovereign power, and they speak to the people, they are expressing a purely anticonstitutional ideology and sentiment because our constitution contemplates that congress can call forth a real militia, those that are well organized, by the states, to put down and suppress insurrection. Our constitution does not support violet extremist violent extremists insurrection. By the way, all 50 states make private armed melissas illegal and criminal organizations. Congress should do the same. Indeed, the constitution recognizes only the official , and reserves the states, respectively, the appointment of officers in the authority of training militia, according to a discipline from congress. States are not going to appoint officers to overthrow their own governments, nor will congress prescribed organizing of the militias in a way to incite those militias to attack our government. When i point these features of the constitutions out to my colleagues, those who are still in the proinsurrectionist camp will try to rescue the insurrectionist and a couple ways. They will quote the virginian Patrick Henry. I have a friend who would go to that college. They quote him in a number of things he does say, along with an insurrection line, but they conveniently ignore the fact that he was an antifederalist who imposed oppose the constitution and the Second Amendment because he thought it gave too much power to the government and took away the power of the people to overthrow any arrangements they didnt like. Then they turned, and this is the heart of their argument, and they argue that there has to be a right of insurrection in the constitution. The American Revolution itself is an attack on unjust tyranny, so if the founders engaged in revolution, then the constitution must incorporate a right. This confuses a constitutional right to insurrection which does not exist with a natural law or right of revolution. To throw off a tyrannical regime. The founders clearly thought it does exist. Certainly, jefferson thought that in the direct in the declaration of independence. They exercise that right after a long train of abuses and earth to patients by the crown and by parliament. They set forth justification in a very elaborate litany of abuses and grievances against the crown in an appeal to the world. Out of a decent respect for the opinions of mankind. But, they thought the idea absurd that you would appeal to the authority of the crown, to rebel against the crown or the authority of parliament to rebel against parliament. It would be ridiculous to appeal to the authority of the constitution to overthrow the constitution. As pointed out in the great book a necessary evil, Abraham Lincoln teased out the distinction between the natural right of revolution which exists outside of the government, and the claim that there is a constitutional right of insurrection. Lincoln said, in his first inaugural address, whenever people grow weary of existing government, they can exercise the right of amending it, or the new revolutionary right to their natural revolutionary right to overthrow it. But the revolutionary right cannot be a constitutional right. As lincoln put it, it is safe to assert that no proper ever had a provision to destroy itself, except by some action not provided in the instrument itself. That should be obvious to everyone. Theres not even a constitutional right to nonviolent civil disobedience. When dr. King and my former colleague john lewis, a late beloved colleague, when they went to protest, manifestly unjust unequal arrangements deemed unconstitutional, they still submitted to arrest, nonviolently. They submitted to the Lawful Authority of government to put them in jail. They had the courage of their convictions and they went to jail. But if the constitution doesnt give you that right, when you have justice on your side it doesnt give you the right to nonviolent disobedience when you dont have justice on your site and you dont have a legitimate point. The second point i want to make is some people say we have asserted, republicans and democrats on our panel, that we are engaged in the work of defending democracy. Democratic institutions. But we are not a democracy. We are republic. I suppose we could say in a strict semantic sense we are a democratic republic we are a representative government, with representative institutions. But there is more than a semantic difference going on here because i believe that you can read and you should read the constitution with all of the amendments, and the chronicle of the progressive democratization, and inclusion of the people of the country, in the original handiwork of the founders. We did not begin anything like lincolns vision of government of the people by the people. We were a slave republic when it started, with white male Property Owners over the age of 21, but through the social and political and constitutional structures, we have come closer to approximating lincolns ideals. We have built a more perfect union. The 13 amendment abolished slavery. The 14th amendment gave us to process. The 15th amendment forbade race discrimination. The 17th amendment shifted the mode from the state legislatures to the people. The 19th amendment doubled the size of the electric, and it gave women the right to vote a century ago. The 23rd amendment gave our friends in washington dc the right to participate in president ial elections. The 24th amendment abolished taxes, and it lowered the age of voting to 18. You see what is happening. Democracy is expanding. More and more people get to become part of it. Tocqueville said that in america, he wrote democracy and Voting Rights are always either contrasting constricting, or they are growing. They are expanding. We have been in a contractionary mode. There is voter suppression. Gerrymandering of our federal and state legislative districts. It serves the will of the people. With the filibuster. It is not in the constitution. It is not in federal law. It is a rule already with more than 100 exceptions. They continues to be a blockade against popular legislation on everything from Voting Rights itself to gun safety legislation favored by more than 90 of the people. The Electoral College also remains a remnant of the original antidemocratic constitution with all of these filters, like the state legislative section of u. S. Senators. The manipulation has become not just undemocratic as we have popular vote losers becoming president , twice in the century, but a danger to the people because there are so many looks and crannies in phases in the Electoral College that it is easy or a badfaith actor to plant boobytraps that will explode in different places, and not just against popular will but against Police Officers and members of congress. That question of democracy is critical. We have to get democracy back on a growth track, and that requires us to think creatively and seriously about the constitutional level and the statutory level. The last point i want to make is that it starts with a bramley can in talking about constitutional patriots. Lincoln was when it was a speech from the gettysburg battlefield, he started off with fourscore and seven years ago. That is 87 years subtracted from 1776. I guess he 87. The constitution is just a handshake among mistakes, and lincoln said, your country begins with jefferson printed it began with the declaration of independence. A proclamation of unalienable fruits, life, liberty, the pursuit of happiness and the definition that all of us, men, and later women, are created equal. Government is erected amongst us, and only legitimately based upon the consent of the governed. Liberty, equality, and democracy. It is set forth in the declaration. Everything that follows in the articles of association, confederation, the constitution, they are nothing but continually working with revisable drafts, trying to implement that dream to vindicate those values. When i call for patriotism, i come back to the founders and there original suspicion of partisan factions. It was a big problem for madison. That is what it is all about. The founders were kind of schizophrenic about Political Parties. They vowed opposition to Political Parties, and they said they were a major problem for us. Jefferson said that if i could only go to heaven with a Political Party, i would prefer not to go. In his inaugural address in 1801, he said, beautifully, and a cadence that would ring through the century, we are all federalist. We are not enemies even barack obama has a modern take on that formulation when he said, we are not red states of america, or blue states of america bid we are the United States of america. The constitution didnt mention Political Parties, much less a twoparty system or two specific parties, which makes all of the efforts to institute, with Political Parties, so illegitimate under our constitution, but in any event, that was one level that they spoke about when they were in the highminded, abstract notion, but acting as bareknuckle hardball politicians, as the judge is a skeptic of my profession, then they were all deep into the partisan mud. Jefferson was quite the political operator. Barack obama is a great politician in addition to being a great rhetoric speaker all knew that. I am calling for more intellectual honesty about the question of partisanship. I would take two cheers for partisanship. Lets acknowledge what they do for us, because Political Parties are a sign of freedom. They exist because of the First Amendment. Because of the freedom of speech. The freedom of association. The freedom of us. Political competition and open elections. That is what happens when people are allowed to run for things. They disagree, and that is not just a former political level. That is true in School Boards and faculty meetings. Anytime you get groups together, people factional lights. That is human nature. They accepted that. It was a reality. It is something we should accept and also we should acknowledge the positive role that they play. They educate people. Date can organize people. They can organize public agendas that elected officials can translate, once they are in. But what i insist upon is that once we are elected, once we are in office, those of us who are in have got to acknowledge what the party is. The word party comes from the french word. Apart. Each party is nothing but a part of the whole. We have to represent the whole. That might sound unrealistic or romantic, but i would encourage everyone to think of something that we do as politicians where we are perfectly nonpartisan. We know how to do it when we want to do it. Think about constituent services. If you come to my constituent, in beautiful maryland, and you have a problem with social security, or your benefits or your loans or passport or whatever it might be, we dont ask you if you are a democrat or a republican. We just go to work free. We know how to do that. That is the attitude we should try to bring, but that is the legislation attitude we must bring to impeachment process. That is why i was so thrilled with the performance of seven republicans and 50 democrats in the impeachment trial of donald trump red in the senate, in the february in february of 21, i was so disappointed in 43 of them because those people were acting on two oats. One and open to uphold the constitution of the United States, against all enemies, for marine foreign and domestic, and another as jurors in the trial to render impartial justice, and what does impartial mean if not partisan . To render justice according to the fact and law. What we need is constitutional patriotism, and everyone should rise above lyrical parties when the constitution calls upon us to do that. You heard me say area date and scholarly. I left out passionate. Thank you. That was. There will not be an exam. Counsel thick, grimace the congressmans counsel. You have yielded your time for it i want to ask a pointed question of you and we will come back during the q and a. There are many people who have condemned the fire lists the violence, but they have not agreed with every conclusion reached by the committee or believe that other facts should come in as well. They have criticized the process because there is no crossexamination. There is not an adversative aspect to it. Is that a legitimate criticism . How do, as a public servant, how do we all ensure that other views are heard . Its a legitimate question, but it depends on the forum in which criticism or the counter narrative takes place. Our hearings are not trials. They are not meant to be. They are not structured that way. They are not fact gathering exercises. They are presentations of facts that we have gathered over the course of the last year. We have tried very hard, from the beginning of this investigation, to gather all relevant facts. Not just facts that support a particular conclusion, but all facts that ring to bear Lessons Learned about what happened on january 6 in the context of it when i was first hired to run this investigation, chairman thompson said, i need your help getting the facts wherever they lead. There are times when those facts line up in a very coherent narrative, and their times were at the where they do not fit. The overall investigation, i think, when all of that is made public, and all of that information is revealed to america, i think the body of work will bear that out. The hearings again are a subset of what we have found. There are a lots of really important themes that we have not developed. We have not talked about Law Enforcement. The appropriate role of the military in response to a mass demonstration event inside of the United States. We have not talked about social media and its role in radicalizing people. The algorithms that push content and generate engagement with a hot form. We have not talked about Domestic Violence and the extent of violent ideology. There are a lot of things that are important context that we are not touching on. I do not think american should walked away should walk away from that hearing with a sense of complete mint as full record of her work. The criticism about crossexamination of the people, i would point to people like judge ludacris or bill barr or Richard Donoghue i just asked people to think for a minute, does anyone think that if there was a jim jordan sitting down on the dais from jamie raskin, that bill barr would somehow not have the very same account of what occurred, and somehow have his credibility question. We have worked very hard, even though it is a subset of information that is corroborated and credible, and told by people who were loyal republicans and part of the administration. I think all of them would stand up and will stand up and historical record to criticism and to challenge. Again, there will be a more full narrative that comes forth. I think that our full findings will the available for history to pick apart, and i am actually excited about that. I think we have approached it consistently to follow facts wherever they lead. I think the narrative we have presented would continue to be compelling even if there were other voices coming at them from across the dais. We will come back to you during the q and a. You mentioned a testimony, and by the way, i got so carried away with this first series of tweets, i forgot to mention he is a graduate of washington and lee. He clerked for judge scalia and then Justice Burger and had a distinguished tenure on the fourth circuit. His testimony is in your written materials. I wanted to ask, you had spoken out about the electoral count act of 1887. Of 1887. Tell us about that. Tell us the problems and how to solve them. And any other thoughts you wish to have. Thank you, justice mims. First, i want some broader observations. Absolutely. The first is this. None of us knows whether we are going to go to heaven or not. That turns out to be beyond our reach, up to someone out. But i have thought a lot about Thomas Jeffersons observations that congressman raskin recited for us over the years. I dont know about you, congressman, but i am planning on going to heaven. [laughter] i do not know if i will make it or not. But if i do, the one thing i am certain about is if i get there, i will be unaccompanied by either of the Political Parties. [laughter] the next thing i want to say but i do not know where to start after hearing that elegant constitutional presentation by one of our foremost american leaders, who is himself an elegant man. I feel betrayed by my friend Richard Cullin who i now understand invited me under. 10 says. [laughter] invited me under false pretenses. [laughter] i listened to congressman rask and i have to issue a disclaimer. Not only am i not a constitutional scholar, and have never been, but today i do not even feel like i am a licensed lawyer. [laughter] by the way, i am all but defenseless today as it was because if i live in fear of anything these days, it is of being recalled by the january 6 committee to testify. [laughter] i am not going to purposely say anything today that might bring about that fate. [laughter] if the congressman and i disagree on anything, he will have to say it, i am not going to. Next, the second disclaimer is this. Believe it or not, and you may choose not to, congressman raskin did not write my testimony for the january 6 committee. I never showed it to congressman raskin in advance. Indeed, for the reasons i included it in a probably historic footnote that i declined to provide my testimony pursuant to the house rules because i did not want anyone to think i was appearing on behalf of another, including the january 6 committee. For better or worse the views and the words i spoke in that testimony were mine and mine alone. But now that he has spoken so eloquently on many of the issues i actually spoke to in my testimony, i am going to go back and reconsider that testimony and be sure that i meant what i said. I am not defenseless totally. If, for no other reason, then this one. I listened to justice mims introduction of the congressman. Not only his scholarly credentials but increasingly to his virginia bona fidees, or lack thereof. I am a pretty quick study. What i want to do is display my own virginia credentials in contrast to congressman raskins so if we do disagree, you will ultimately agree with me and not him. [laughter] i am, i think, began my professional career here. I went to both college and law school here. My wife went to college and law school here. My daughter went to college here. My son went astray to california and, of course, we cut him out of the well. [laughter] justice mims is this the one that taught you how to go on twitter . Judge luttig yes, but that did not rehabilitate him. [laughter] my whole family and our life is in the commonwealth of virginia, which is a longwinded way of saying it is an honor and privilege to be here before the Virginia Bar Association. I am appreciative of the of a presentation. To get to the question justice mims asked about the electoral count act, the plan to overturn the 2022 election was multifaceted. And we now know this was not a plan that was developed by political hacks. It was actually quite the opposite of legal hacks. The plan was hatched and developed by individuals, one of whom was a former law clerk of mine, disappointingly, by scholars of constitutional law, in particular of president ial politics and the constitution. In fact, ive said that on january 6th i dont know that, of course, but i dont doubt it that among the several who developed this plan, my law clerk john eastman, on that day, i believe he would have known more about the constitution and the laws of the United States and the history of the United States and constitutional evolution, if you will, than any man in america. Which is to say this. As wrong and as wrongheaded as the plan was, it was conceived and illconceived in the law and the extent law at the time, and indeed, the extent law at the time as developed literally since the founding of the republic. And, but all of this is for a discussion another day, but the central features of the plans exploitation of the law, constitutional laws of the United States was the 12th amendment and the electoral count act of 1887, and what we what probably will not get into today, but what is today now famously understood as the independent state Legislature Theory of constitutional interpretation. That would be constitutional interpretation of both the electors clause and the elections clause of the United States constitution. And ive written, indeed the center piece of that, the independent Legislature Theory. And so, from the outset of the execution of the plan, which began months and months before the election of 2020, the former president and his supporters and allies and in particular, his legal advisors, they were pursuing the independent state Legislature Theory through the federal court and eventually through the Supreme Court of the United States. So in short, as i have conceived the plan, and others can conceive it differently, but that at least up until december of 2020, when the Supreme Court, it did not decide the independent state legislature doctrine, but it declined to decide the independent state Legislature Theory. Up until that point, at least arguably, the plan as conceived and executed to that point was lawful. But in my conception, once the Supreme Court and it was a divided Supreme Court and much of the declination of the case played out in Public Opinion where at least three justices, current justices, then current justices suggested at the very least that they favored the doctrine. And Justice Barrett was did not participate. And there was every reason to believe that she, too, would embrace the doctrine if it were ever presented to the court. So there would be at least four votes on the Supreme Court for that doctrine. Anyway, thats the center piece of it. And so to turn now to the electoral count act of 1887, that that was what i think of as the exploitation of the third law or constitution of the United States that was planned and executed by the former president. So the the three months after january 6th, i wrote a piece in the wall street journal with a colleague of mine david david rifkin where to my knowledge for the first time the two of us said that the electoral count act of 1887 is actually unconstitutional. Thats neither here nor there in todays discussion, but we concluded after studying the history and the constitutional history of that undergirded the act that never expected congress to play any role in the selection of the president of the United States. And we said that in the march of 2021 wall street journal piece. We were responding, of course, to what the world knew at that point was one of the biggest sources of january 6th, which was the electoral count act of 1887. So, what that act does, is in a host of circumstances essentially gives the congress of the United States the power to decide the presidency. Many people, up until the time that my friend and i wrote and continuing to today, you know, had said that the act was impenetratable, circuitous, ambiguous and on and on. And it is all of those at least to the untutored mind. When i actually first read it, you know, my colleague said you cant even understand this thing, you know . I forget the singlemost important sentence in the entire act is 5 or 600 words, okay . But in any event, when i read it very, very slowly, i thought i understood every word of it. But i dont for the life of me understand how anyone could, frankly, but that the in my view, and as ive said, the attack on the capitol and the attack on the electoral count process itself, originated with the electoral count act. Why . Because under that law, congress had the authority to decide the presidency in the circumstances that had been, lets just say generated by former President Trump and his colleagues. That is, in particular, that there were to be in their estimation, alternative slates of electors, submitted to the congress of the United States, to be counted, other than the officially certified electoral slates from six or seven of the swing states. The electoral count act specifically provided in 1887, that the congress of the United States would decide that dispute, the congress would decide which of those two electoral slates from the respective states would be counted and therefore, who would be president. So to go back and into the justices question, theres no question that that is that if you want to prevent another january 6th, whatever you think about the constitutionality of the act, that act is desperately in need of amendment and reform. So i have been advising over the past year plus any number of members of the senate and the house on the ways in which to do that, which were not going to go into detail today, but just before this conference, as im sure many of you know, the Bipartisan Group of senators who have been working on this for a year, a group that i have been advising over the course of the year, came forward with their proposed amendments and i believe that congressman janey and congressman lofgren, i saw yesterday, had suggested that they, too, might be coming forward with a set of amendments from the house of representatives. I have at one point, i was asked to review the package that was then going to be proposed by congressman cheney and congressman lofgren and i said this was about as perfect an amendment as could possibly be had if it was politically achievable. And that this would all, but ensure that there would never be another january 6th. Then a week ago, before the Senate Version came out, the Washington Post called me and said, this is what the Bipartisan Group is going to propose. If this is what theyd propose, what would you say . And i said, as to that proposal, which to date ive not even seen, i said if it has the provisions that the Washington Post was telling me it had, then it would all, but ensure that the country would never endure another january 6th. Now, judge. Let me ask this question. What i want to do now is to ask Betsy Woodruff swann to pick up exactly where you are. We do not have the Washington Post here that i know of. We do have politico and so, betsy, with that in mind, with the with the developments of the past week and the endorsement of judge luttig, can something along the lines of whats now being developed pass the congress . I think its feasible. One of the Biggest Challenges is time. Obviously the house is likely to flip, based on all Empirical Data with the midterms as congressman raskin might disagree with that prognostication, based on what we know, it doesnt look like democratic control of both chambers of congress. If this is going to happen, most democrats think its more likely to happen if they remain in control of vote chambers and a veto proof majority in the senate. The fact that theres a senate bill thats bipartisan currently percolating is something that certainly would give heart to people who are hoping to see this car crash of a piece of legislation get fixed and the fact that if originated in the senate, this might sound a little cynical, thats helpful. The reason thats helpful, if the house flips any legislation thats any legislative proposals that are generated by the january 6th committee are likely to be rejected, unread by incoming potential future House Republican leadership. Solely based on the fact that those proposals will have then put forward by the committee. Thats the level of animosity among current House Republican leadership, future House Republican leadership directed toward this committee and frankly, thats one of the Biggest Challenges that the committee faces in my view, how do we take concrete is it epps to make sure that the violence that occurred on january 6th and the conditions that teed up that violence dont happen again. At this point its really a fight for time. The committee thus far hasnt put out any formal recommendations, hasnt yet put out positions for policy and practice, and changes within the organizations like the fbi, dhs, Intelligence Community, that all frankly could have performed at a much, much, much higher level on january 6th. If they want to get the changes to happen, the clock is very much ticking down and thats perhaps the single biggest Pressure Point right now. Okay. Now in let me say, what betsys alluding to is what i said in every meeting that i had with senators or congressmen or their staffs, which is i said the problem on the hill is that each of you wants to be able to decide the presidency when you want to decide it. You dont want anyone else to be able to decide the presidency when you dont want them to be able to decide the presidency. And from the first conversation i had that they nodded and said, yeah, judge, thats the problem. So i believe that, you know, knock on wood, maybe theres hope, but i think that congress has waited too long to do this. I dont see that its even possible before the midterms and then if the midterms go with the republicans, i dont think youll ever see an amendment of any consequence at least of the electoral count act. Okay. Now, we are moving were going to wrap up with one more question and then go to questions from the audience. Betsy, you are the only nonlawyer on the panel and you are an experienced and thoughtful observer of the political process, the policy process. And you, in fact, truly are writing the first rough draft of history. This is one of the most important historical issues that we will deal with in our lifetime and historians will be looking at what you have written to try to understand the broader picture. I want to ask you a question prosperitys sake and i want you to look out at this roomful of lawyers, and imagine instead of the lawyers, some of them shaking their heads, some of them taking notes, some of them doing any number of things, imagine that its a roomful of teenagers, high school students, perhaps some College Students who are thoughtfully trying to understand whats going on, what happened, why did it happen, how can we prevent it. All the questions that were grappling with. What would you say to them and frankly, whatever you would say to them, i think we lawyers could probably learn from. Take it away. I think what i would say is that the conditions that resulted in the violent attack on the capital on january 6th were not a fluke. It was not something that was that came out of the blue. It wasnt something that should have surprised anyone working in Law Enforcement or intelligence on january 6th, and in fact, theres a lot about the way the United States Intelligence Community and Law Enforcement agencies work that perversely almost teed this up, going back to the Obama Administration. An episode that overlooked and very important in the domestic terrorist, an analyst within the department of Homeland Security, an Intelligence Analyst wrote about extremism about people coming home, american war veterans coming back to the country, this guy was concerned that some of these American Veterans were being radicalized. And the paper leaked out and drew angry condemnation particularly from republicans, any suggestion that there could be domestic extremism as a problem on the far right on the overwrought, and Obama Administration revoked that paper and the secretary of Homeland Security apologized for it. It destroyed that analysts career within the department of Homeland Security and had a Chilling Effect on Intelligence Analysts for the next decade and a half. Anybody who even thought about a career focused on domestic extremism and particularly far right ideological extremism and they thought twice about it, if you want to look at the dhs, fbi, stay away from the issue of domestic threats. Fast forward to the Trump Administration, and in the very early days of the Trump Administration, dhs officials saw a trend that they found really disturbing and frightening. There was a spate of episodes of vandalism targeted jewish cemeteries around the country. I spoke with dhs officials who worked there at the time who said they saw this playing out. They were concerned. They cant realize, they didnt think too hard about the roles of what the department of Homeland Security might be and only a few months later, there was a violent attack at charlottesville and wrote the chronicle. At that Point Trump Administration political officials within dhs realized that there was a met at that time sizing . Metastasizing, and werent going to talk about it, and coupled with the fact that president at the time was pressuring dhs only looking at the southwest border security, to the exclusion to with almost anything else, combined with the people who want today work on this threat, being sidelined and totally incapable of doing it themselves. And secretary of terrorism at the time, Elizabeth Newman told me about six months before the january 6th attack, during the Trump Administration, before she left the administration, one of the challenges was dealing with trump himself and his personality. She said when youre spending all of your energy preventing him from doing illegal you cant also run your Defense Department or your state department or your department of Homeland Security. All of these agencies didnt do their jobs on january 6th, part of that is due to the political pressure, part of that goes much farther back than the Trump Administration and long predates it. Theres a lot of blame to be spread around. When the Biden Administration came in, they focused immediately on domestic terrorism and tried a plan to combat it and weve seen the violent forces continuing to percolate and materialize in horrific killings in this country. One of the biggest steps the department of justice has taken that they rolled out with a lot of attention was setting up something called a task force focused on security for Election Administration officials. The people who work at the very local level counting votes, checking people in when they register, people who have those jobs. These are normal, unisexy jobs, people who have these jobs are facing a traumatic uptick post january 6th in violent threats. The Justice Department has said theyre trying to take steps to keep these people safe, but the New York Times had a story just a couple of weeks ago, tracking the number of actual prosecutions that doj has brought against the people who leveled violent threats against election workers and its tiny. People who represent these election workers say that theres not nearly enough being done to keep them safe and the result that he is thats scary, when it comes to the administration, lots of people who have these jobs dont want to do them anymore if theyre worried theyll need Armed Security outside of their house or perhaps theyll need it and wont be able to get it. The people who had the jobs for years and years to understand the complex, nerdy, wonky practices of how elections work are leaving en masse and many replaced by people who want those jobs for nefarious purposes. When we look at january 6th, the role that President Trump played and the electoral count act played and the activities of that 24hour period are enormously important. It wasnt a freak thing that happened. There were threats materializing, and metastasizing a decade before him and many of the threats and dangers very much still exist and i think thats the biggest question that remains for the select committee. When we look back years from now. Frankly before 2024, what concrete changes happen both legislatively, at the late and local level, and within Law Enforcement and intelligence agencies to make sure that this type of violence doesnt happen again. Congressman. I agree very much with what betsy just said and in fact, the one witness that america, i hope, remembers if you can only one is shea moss who was an election official who was, you know, violently intimidated and attacked by donald trump and his followers in georgia. And she really embodies the kind of commitment that makes elections actually work in america. She registers people to vote. She gets people their absentee ballots, shows people how to make the system work, and if those people were going to be harassed and harangued and attacked, weve got a real problem on our hands and we also have the problem that liz cheney has been identifying, which is organizing peoples political beliefs or a whole Political Party around lies and lie and disinformation and propaganda. When you look at the literature about authoritarian and fascist Political Parties historically and on earth today. They have two features in common. One, they reject the results of elections when they lose, and two, is they embrace Political Violence. So its a very dangerous thing to have a Political Party rejecting the results of elections when they lose them and not disassociating themselves with Political Violence or tolerating it or encouraging it. And i think fundamentally thats what these hearings are about. Okay. Im going to try im going to combine two questions that have come up for you. The first is, you were really at the center of the investigation that came after the Charlottesville Violence and if you could speak to how this is your investigation here, similar or dissimilar from that and then also, we have many individuals who are very significant litigators in this audience. How, what is the magnitude of what you are doing in terms of the investigation, the preparation, and how does it compare to anything that you did in your prior legal work . Yeah, both good questions. The first one is a perfect segue from what betsy is saying. Its a manifestation of what betsy is talking about, and there are similarities that what occurred at charlottesville and january 6th. They have at their core, a flash point issue. In charlottesville, statutes tuesday. We in charlottesville were dealing with history and appropriate and a big public discussion, and decision by the leaders to remove the statues and that was controversial and that became a discussion, made charlottesville a forum and that issue drew a lot of people who werent that concerned about the statues, but looking for a forum in which to pull together a suite of ideologies, unite the right was scriptive, charlottesville meant to bull together people who had different views and america was moving in a decision, basically racebased. And january 6th, a lot of people were there and they were convinced by stop the steal rhetoric. Not all of them. There were some defense against covid restrictions and vaccination requirements and then the events that draw ideology that is primarily antiestablishment, people that distrust government. People that believe that the Decision Makers in government and the media and Higher Education dont understand them. So, both in charlottesville and january 6th. We have the core issues, and they sort of metastasized into strong and antieverything, antigovernment, anger and violence. That is, continues and what betsy is talking about with respect to Law Enforcements understanding of that is the new threat, its a new threat landscape. So much of Law Enforcement is focused on people and its focused on potential cases and if we havent done a good job of understanding in the aggregate those constellations or lots of things that dont seem connected or apply to a particular case investigation, when you look at them from 30,000 feet they actually really, really matter. So charlottesville and january 6th are manifestations of a larger process. Both the lawyer question is a good one. January 6th is of a magnitude as an investigation beyond anything that i have done, beyond anything, frankly, that i think that congress has done. Just to compare it when i was an assistant u. S. Attorney, now, a couple of lawyers, couple of agents, serve a bunch of subpoenas, put them together and try your case, its micro at an event. And the process that they hired in williams, put together a team of eight or 10 folks and we interviewed a bunch of people and gathered documents and had a public presentation at city council and issued a long report. This is fundamentally different. We have a team of about 30 lawyers each of whom are broken into teams that focus on subparts of the important context of van 6th working independently, but in a collaborative way. And our work product, this microscope weve worked is unlike anything that we do is scrutinized carefully, it goes back to your cross examination question and its sort of happening rit large in the media every day. And then ultimately, well issue a report and well issue important forward looking recommendations, because the goal is, the historical record, what happened, lets start with facts and we want to do that in charlottesville and january 6th, lets just agree on a credible narrative of what happened and from that we learned, from that we try to fix the problem and we try to identify and try to fix the electoral count act and put things in place that make january 6th less likely to happen. Let me say that to both betsy and tims point. I testified that this in america, there are two wars, going on in america today. The first war is what i call a war for the heart and soul of america, which as a proxy we can today call the cultural war. And then the second war that i identified was the war for americas democracy, that began on january 6th and i said that that war was instigated by a former president and his party. The republican party. And then i went on to say that if theres ever to be peace in these two wars it has to be brokered first by the republican party, which brings to peace the war for democracy. If theres ever to be a chance in this world of having peace in the larger war for the heart and soul of america. But the point i wanted to make is that i said to congress that in my view, the war for democracy, the war on january 6th was foreseeable and understandable from the cultural war that had preceded it in just the way and for just the reasons that betsy and tim have identified. So, of course, all of us were shocked and im the first that was shocked, but when i did think about it in retrospect, i said to myself, of course, january 6th happened. Of course it did. We all could have foreseen that this is how these wars would come to a head and they did. We have two or three questions pending and unfortunately only time for one. But i want to ask that question that if there are historians, half of them love the question of this nature and the other half roll their eyes and shake their heads at a question of this nature. Your tweets went out at 9 53 a. M. On january the 5th and according to all reports vicepresident pence had not made up his mind at that time and of course, your tweets were directly aimed at his thought process as he was listening to your former clerk, as he may have been listening to your former clerk or at least the thoughts of your former clerk. Here is that historical question. What if you had not been able to operate twitter . What if your son had not picked up the phone when you called to say, how do i do this . And consequently, the vicepresident had chosen to act differently on january 6th . My life since january 6th would have been a lot different. [laughter] and much more relaxed. But, no, i dont know and i dont know that well ever know whether, as you suggested, the vicepresident had yet to make up his mind. There was nothing in my interaction with his advisors that suggested at that late point that he was vacillating, if you will, and of course, ive asked ive been asked that question hundreds of times in the past year and a half and the committee asked me that question in my deposition to which i will not tell you the answer. But what i did say, well, first i want to say that ive been thinking about this question literally since january 6th so were coming up on over a year and a half now. It would be barely overstatement to think, to say that ive been thinking about that almost nonstop because i knew the day was coming when i would have to testify in front of the country, which i was glad to do. It was a high honor, but i knew as a lawyer and a former judge that if there were a question to be asked of me, that was it. And i just cant tell you. I wanted to be right in that answer for history and sure enough, vicechairwoman cheney asked me that question in the hearing and i gave her this answer in substantial. I said, you know, i believe that had the vicepresident yielded to the demand of then President Trump and overturned the election, the 2020 election on january 6th, it would have immediately plunged america into what would have been tantamount to a revolution, a revolution within a paralyzing constitutional crisis. The revolution and i went on to say that there are different definitions, of course, of a constitutional crisis, but before the committee i went on to say under my definition that would have been the first constitutional crisis in americas history for the reason that in my view the constitution itself didnt contemplate this kind of fatal assault of democracy from within. And thats my definition of a constitutional crisis, but focus then on the word revolutionary. I only use the word insurrection in the past year and a half one time very deep into my written statements and you can find that place, but that kind of sums up what the year and a half has been for me, but more importantly for the congressmen and the congress of the United States. If you want to use the term coup, which i have steadfastly not used, but if for conversations sake you want to call this a coup, it was a legal coup and i guess its appropriate that i say that first in front of a group of lawyers. Okay . This was a this was all about law. As i said, exploitation of the constitution of the United States and the laws of the United States by lawyers. And weve got to admit that. And so, it was a legal coup, but my point is that the actual words of the constitution and the laws of the United States like insurrection, is thats what has been discussed in front of the nation and thats whats literally at stake today for america is the words of the constitution and the laws of the United States. Can i say a word . Yes. If i could just make two quick points about that. One is, judge luttigs admonition is important. From greece to chile, had as been wrapped up in law and as judge carter said in the eastman litigation, this is coup in search after legal theory and the coup found its legal theory and i want to thank you, judge luttig, of course, who is a luminary in circles generally, but within the conservative movement and his coming forward to say that the eastman theory was totally unfounded in the law and contrary to the constitution was a real breakthrough, i think, for the country and certainly for our hearings. What would have happened if he didnt know twitter or son hadnt shown him how to do it, i thought immediately of something that was said, where he said if it appears that there was one decisive moment that made the difference in historical events, you can be certain there were Larger Forces in play that would have made it come out the same way. So, which is not to disparage the greatness of what judge luttig did, but that american democracy will survive and that we will get stronger through all of this. Let me play off of that and end with a note of hope and appreciation. Steve will express appreciation for the panel. I want to offer a note of hope and quote, joseph elliss in doing so, that the distinguished historian, and i might point out, william and mary grad. [laughter] who has spent most of his career writing about the conflict between the various personalities and policies with washington, adams, hamilton, marshall, essentially on one side, although they had their little conflicts, too. And jefferson, madison, monroe and the others on the other side, and they, their conflicts were quite significant. At one point, jefferson wrote to madison saying that they must further only hope that Patrick Henry died, but what joseph elliss says is that the constitution to which they were all ultimately devoted, whether they wanted it initially or not, the constitution doesnt provide all of the answers. Its glory is that it provides a context in which we can continue to debate the question. And what we had scene on capitol hill, what we have seen throughout the population, what we have seen on this panel, is how we dont have all the answers, but how we can continue to debate. We have the framework so we can potentially solve them peacefully and not by resorting to violence. So my note of appreciation is to the constitution itself and ill now yield to close us out. Thank you, justice mims and let me say, discussions such as this represent the best of what the Virginia Bar Association is trying to accomplish and were happy to thank cspan for sharing this more broadly than those who are with us today in person, and to the panelests, Betsy Woodruff swann, congressman raskin, Justice Luttig and fou to the panel, youve put a lot of thought and effort into this, a wonderful High Water Mark for everyone in the virginia association. Id like to ask you to join me in thanking them. [applause]. [inaudible conversations] [inaudible conversations] if youre enjoying American History tv then sign up for our newsletter for the qr on the screen. 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