The January 6th hearings, a series of five scheduled hearings investigating the January 6th insurrection at the U.S. Capitol, by the United States House Select Committee, is currently underway. So, what will these hearings uncover?
Host Craig Williams is joined by William C. Banks, law professor and an expert in constitutional law, national security law, and counterterrorism law, to discuss the January 6th hearings. Craig and Bill take a look at the purpose, goals of the January 6th Select Committee, potential criminal referrals to the DOJ by the committee, and whether there could be possible criminal prosecution due to the information revealed in these hearings.
J. Craig Williams: Before we get started, we’d like to thank our sponsors Embroker and Posh Virtual Receptionists.
William C. Banks: We never learned before Nixon died whether he actually ordered to break-in or participated in any way and that initial activity or whether his wrongdoing was limited to as we might say that the cover-up that occurred afterward. But it pales in comparison to the activities that were undertaken surrounding the 2020 election. I think it’s a Minor League Baseball and this is the World Series.
Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog named May It Please the Court and have two books out titled ‘How to Get Sued’ and ‘The Sled.’
Well, we had four January 6 hearings, it’s a series of five. There will be one more that have been investigating the January 6 Insurrection at the United States Capitol and it’s been held and heard by the United States House Select Committee and available to all of us to watch as it’s been underway. So what are these hearings are going to uncover? Well, today on the episode of Lawyer 2 Lawyer we’re going to be discussing these January 6 hearings. We’ll take a look at the purpose and the goals of the January 6 select committee, the potential criminal referrals to Merrick Garland at the Department of Justice by the committee and whether there could be possible criminal prosecutions due to the information revealed in this hearing. Depending on where those prosecutions go, it may extend to some people who’ve actually been on our podcast before.
Our guest today is William C. Banks a Syracuse University College of Law Board of Advisors Distinguished Professor and Emeritus Professor at the College of Law and the Maxwell School as Professor of Public Administration and International Affairs. He is also chair of the ABA Standing Committee on Law and National Security. A teacher and Scholar at SU for more than four decades. Banks was a Founding Director of the Institute for National Security and Counterterrorism. Now the Syracuse University Institute for Security Policy and Law. Professor Banks is highly regarded and an internationally recognized scholar. The topics of his wide-ranging research include constitutional law and national security and counterterrorism law. Welcome to the show Bill.
William C. Banks: It’s very good to be with you Craig. Thank you.
J. Craig Williams: And I’m glad to have you back. You’ve been on this show once before and the city hearings is something else. We have had some testimony from a very well-known judge, Judge Luttig who essentially says that it’s the edge of democracy. What’s your thought about that?
William C. Banks: Well, his quote there is very memorable. I think Judge Luttig is a highly regarded and very conservative jurist who’s been in the field for a good long time. He’s been sort of a leading light in Federalist Society circles for decades, a prominent quotable source for leaders in the Republican party for decades and to have him appear in the hearings and then also to issue such a stark warning about the actions that were complained of on January 6 is really I think for those of us who paid close attention anyway, it’s quite a significant mark against the Trump Administration, the former Trump officials who are responsible for the wrongdoing that day.
J. Craig Williams: And the judge has some very interesting relationships with Professor Eastman.
William C. Banks: He does. And Eastman and Justice Clarence Thomas and Justice Thomas’s wife, Jenny Thomas, they all are part of a circle. But this time it’s not a good place to be I think inside that circle.
J. Craig Williams: And if I’m reading it correctly, that circle extends so far as to include Senator Cruz.
William C. Banks: That’s right. It’s a club that only select members could apply to over the years. But again, I think maybe renewal of membership may not be high on some of their list. We’ll see.
J. Craig Williams: Well, given your allegory, what kind of credentials did you have to have to get into that club?
William C. Banks: I think you need a good conservative credentials from the get-go, not January 6 credentials of course, but the kind of credentials that would argue that the constitution should be strictly construed according to its text.
Owing legacy to Justice Scalia and two others before him and more recently to current conservative members of the Supreme Court. And it would be would be longstanding membership in the Federalist Society and trumpeting the causes which are in general less government protection of the right to bear arms, protection of economic liberties, less government regulation, fewer economic and social regulations, and very crabbed and conservative interpretations of classic civil liberties like right to equal protection and due process.
J. Craig Williams: Well, there’s a whole years’ worth of constitutional law in that statement that you just made. There are so many things to talk about, but let’s go inside the January 6 hearings. What has stood out to you?
William C. Banks: The remarkable thing to me about the hearings is the care that the committee by all standards bipartisan committee has taken to construct a narrative that will stand the test of time, that will substantiate an historical record. Whatever happens beyond the hearings, that a record will have been made for my children and your children and our grandchildren and other generations to come about the serious threat to U.S. democracy that was presented through that period from election day of 2020 through January 6.
I think that the committee has undertaken a tremendous amount of preparatory work here. They have a fairly small staff, something like 45 or 50 staff were working. I know one of them, she’s working virtually around the clock to prepare the materials, to prepare the members, to gather the witnesses, get their statements, to sift through depositions, and prepare the video and audio clips that accompanied the live hearings. It’s really like a massive production that’s been brought together now. This is our fourth hearing today I think with more yet to come. It’s quite an impressive piece of work apart from its historical significance.
J. Craig Williams: And there’s kind of two questions that flow from that and I think I want to go first with the historical significance of it. There have been some folks who have kind of pooh-poohed the January 6 hearings and said really, it’s not that much worse than Watergate and that was not a constitutional crisis like this is. Do you see anything to compare the two? I mean, you and I are both old enough to have sat through and watched those hearings back in Watergate and the outcome of them, but what’s your sense of how they relate to one another?
William C. Banks: It’s remarkable to talk about the parallels. I think that’s a good point of departure. You know that I was in Washington last week and headed up a couple of events where I was able to use my MC dias to note that on one of the days, I think it was last Friday was actually the 50th anniversary of the break-in at the Democratic National Committee Headquarters at the Watergate Hotel. And so we talked a bit at that meeting about the significance of the event and the significance of the 50-year history.
One of the starkest contrast between Watergate and January 6 is that the principal players in Watergate agreed to abide by the rule of law once their activities were exposed, and indeed it was the rule of law that caused many of them including John Dean and other principals in the Nixon Administration to come clean. And indeed for the president to concede once the Supreme Court had ruled that he had to turn over tape recordings of the cover-up, that he himself was culpable and needed to resign the presidency. So, a more humble president than Donald Trump to be sure, even though President Nixon clearly violated the law. He did so and then when he was caught red-handed so to speak, he said, “Okay, you got me. I can’t sustain the presidency in the face of having participated in a cover-up of Watergate.” We never learned before Nixon died whether he actually ordered the break-in or participated in any way and that initial activity or whether his wrongdoing was limited to as we might say that the cover-up that occurred afterward. But it pales in comparison to the activities that were undertaken surrounding the 2020 election.
Lawyer 2 Lawyer – Inside the January 6th Hearings.
I think it’s its Minor League Baseball and this is the World Series.
J. Craig Williams: And let’s do that comparison. I mean let’s compare them, the minor leagues in the major leagues here because you had Nixon who was spying on the Democratic National Committee. In your mind, does Trump’s grasping at straws to stay in power or have any comparison with what Nixon did?
William C. Banks: Well, you mean the obvious comparison that I think puts them on a similar playing field at least even if minor is opposed to majorly good dimensions is that they were both unlawful. It was unlawful for President Trump or whoever is ultimately responsible to orchestrate attempts to create substitute sets of electors from states that he thought might still be in play. It was unlawful for President Nixon or whoever orchestrated the Watergate break-in to conduct a simple burglary to steal materials that have thought would help the Republican Party in the 1972 presidential election and beyond that I think again, we go from minor league to the World Series
J. Craig Williams: Right in my mind and you can correct me if I if you think I’m wrong, it seems to me that what Nixon was doing was spying to gain an advantage but what Trump was doing was acting to stay in power, to me a much worse crime.
William C. Banks: It is. It’s a much worse crime by orders of magnitude, that’s right and then to continue to persist in telling the lies and fomenting the false narrative that the election was stolen when everyone around him including the attorney general of the United States, one of the most conservative attorney’s general we’ve had in many decades told him that his theories didn’t hold up. He used the more colorful term as I recall.
J. Craig Williams: He did. BS. Well, let’s throw into the mix here. What just happened in Texas with the GOP? I mean, here’s a seemingly sensible group of people that have said no, it’s the big lie is the truth.
William C. Banks: Yes. You know, a friend of mine, sent the message in the last couple of hours wondering if she could. could still go visit her brother next year in Texas if they secede from the union, will they honor a U.S. passport? That was a pretty clever big at what the Texans are up to. Texas of course isn’t the only state that has completely embraced this false narrative and in some states like Arizona, the officials appear to be in sort of a Jekyll and Hyde box that they have a hard time escaping, some officials like the man who testified today deeply conservative Republican was still appalled at the effort of President Trump to get him to change the certification of Arizona electors and submit a different and false light. He was having nothing to do with it. He was a very conservative man, who paraded his conservative Christianity in front of the of the January 6 committee today and he’s in a state where there were other Republicans who were calling him after the election requesting that he do just what President Trump had personally asked him to do. sometime later. It’s a crazy place. Texas, I think is gone over the edge if you will and in Republican circles will see if Democratic candidates for statewide office there comparing better in the next go-around.
J. Craig Williams: Well Bill, we need to take a quick break to hear a word from our sponsors will be right back.
Midtro: As a lawyer, insurance is one of the last parts of your job you want to spend on billable hours on. That’s why thousands of lawyers have switched to Embroker. Embroker offers A plus rated insurance for law firms. You can quote and buy instantly online and if you need help, they have experts on standby. Go from sign up to purchase in 15 minutes by visiting embroker.com/law. That’s e-m-b-r-o-k-e-r .com/law.
J. Craig Williams: And welcome back to lawyer to lawyer. I’m joined by William C. Banks, Law Professor and an expert in Constitutional Law, National Security Law, and Counterterrorism Law. We’ve been talking about the January 6 hearings, some of the outflow from that, you know, you’ve pointed out that both Texas and Arizona, pretty much stepped over the edge and for the large part, I think Florida has too. How are we going to deal with two different realities in 2024?
William C. Banks: It’s one of the most vexing questions maybe it’s the chief question that faces all of us, I think for the next two years, and if I can circle back to these hearings, I think it presents may be the most difficult question for the attorney general in the United States now.
If at the end of these hearings and at the time that all of the transcripts and the depositions, all the materials that are in possession of the committees are sent over to the Department of Justice. Ultimately, the Attorney General is going to have to decide whether to bring charges against Donald Trump and I think that, you know, we could debate I think for far beyond the length of your podcast, whether they’re provable offenses that Donald Trump committed there in the days and weeks surrounding the election, and up to, and including January 6. I believe that there are provable offenses that I think most experts share that view, but that’s a different question than the one, should they be brought?
You know here, the attorney general of the United States not only has to well, he has to weigh three things really. He has to weigh first, whether it’s ethical for him, a member of the administration of President Joe Biden to make such a decision himself, or should he appoint a special counsel. He could be perceived as ethically compromised, because he was indeed appointed by President Biden and I think the media has reported at some earlier time that President Biden admitted in a small group meeting that he thought that President, former President Trump should be prosecuted, that’s problem one.
Problem number two is that the attorney general would have to decide whether these offenses that are arguably committed by Donald Trump as a former president, are provable, is the requisite criminal intent, you know, there’s been a lot said, and written about that question in various ways over the recent weeks and I think most reasonable experts conclude that it’s a tough case. It’s a tough case to prove criminal intent when you’re faced with a former president, who so willfully tells falsehoods and strays from a script and is a loose cannon in all of his doings as president before, and his after his presidency. It is going to be difficult to demonstrate that his intention was to violate the laws of the United States and that’s a requirement of course in a criminal case. The house doesn’t have to pay attention to that and its committee hearings in the civil litigation that’s been ongoing, those judges don’t have to demonstrate proof beyond a reasonable doubt and a criminal intention. So that’s a very difficult question.
The third question, which I think is in some ways, the most difficult is would such a prosecution even if successful, the good for the country and that circles back to your question, what’s going to happen in 2024. I fear the worst and the worst would be, of course, a breakdown in civil society surrounding the next presidential election, whether it’s Donald Trump against Joe Biden or two different individuals. It’s bound to be a highly contested unless the world changes very dramatically in the next year or so. We don’t know that Donald Trump is going to run, but it certainly is all his leanings and soundings are pointing in that direction. We don’t know whether President Biden will seek a second term, but I think the more important question is whether it’s Donald Trump and if not Donald Trump, whether it’s someone who’s going to take the mantle of Donald Trump and the make America great again or save America, whatever the most recent version is and I think then if we’re faced with that and we have a prosecution ongoing or even completed by then and by the way, it might not be completed by 2024 given Donald Trump’s inevitable tendency to appeal every decision that is made in the pre-trial proceedings of a criminal case. We could be dragging a criminal prosecution if it comes well beyond the 2024 election. It’s hard to imagine how we can all survive that and still have a constitutional democracy.
J. Craig Williams And look what the background is, we have GOP candidates threatening to hunt down his opponents. I mean this cancer has gone pretty far.
William C. Banks: This cancer is gone pretty far. There’s no sign that it’s abating. That, if anything, it may be accelerating and what the polls show four and ten Republicans believe or is it more than that? Some vast number of Republicans continue to believe that the 2020 election was stolen from Donald Trump. That’s false, but it doesn’t matter if it’s false if it continues to be perpetuated and actually influences the outcome of the next election. As we know, both of us and your listeners undoubtedly also know elections are run by the states, not by the United States and states that all across the country have been reforming their election procedures to actually make it more possible for these kind of election-related shenanigans to occur and to make it less possible for many Americans to vote.
Cutting off early voting and all those other schemes that have been perpetuated since this 2020 election.
J. Craig Williams: Right. And I think I’d be correct in adding a fine point that the majority of those states who have made those changes to the voting situations are Republican-controlled.
William C. Banks: That’s right. Majority certainly are not all, but most of.
J. Craig Williams: So, we have this kind of insane from a logic standpoint, from a legal standpoint, we have this kind of insane situation in front of us. How do we, you know, and I completely agree with you that the three points that you made about and I think — about whether Trump should be prosecuted or not perhaps the most important being is it good for the country? We’ve never prosecuted a president before.
William C. Banks: Yeah. It’s hard to imagine that it could be done in the current environment, the political social environment that we live in. Even though it wasn’t Donald Trump, whose personality alone could derail any otherwise standard kind of criminal prosecution. I really don’t think it’s good. And I imagine that the attorney general is harboring those doubts as well. He’s been very taciturn, very close to the vest of you would expect them to be throughout this process and he’ll make a judgment based on those factors I believe that we just reviewed a moment ago. I just don’t see it going forward.
J. Craig Williams: Did he go out there and find a kind of star or an Archibald Cox as a special prosecutor?
William C. Banks: He could do that.
J. Craig Williams: Punted?
William C. Banks: He could do that. Yeah.
J. Craig Williams: Save himself?
William C. Banks: It would certainly alleviate some of the tension surrounding his involvement in the matter. But still then, if the new Ken Starr or Archibald Cox recommends prosecution, would he do it? And we’re back to that same ultimate question of whether the country can stand and survive and thrive in the wake of a criminal prosecution of Donald Trump. I have my serious doubts.
J. Craig Williams: Well, Bill, it’s time for another quick break to hear a word from our sponsors, we will be right back.
Midtro: As a lawyer, ever wish you could be in two places at once? You could take a call while you’re in court, capture lead during a meeting. That’s where Posh comes in. We’re live virtual receptionist who answer and transfer your calls so you never miss an opportunity and the Posh app lets you control when your receptionist steps in. So if you can’t answer, Posh can and if you’ve got it, Posh is just a tap away. With Posh, you can save as much as 40% off your current service providers’ rates. Start your free trial today at posh.com.
J. Craig Williams: And welcome back to the Lawyer 2 Lawyer. I’m back with Professor William C. Banks from Syracuse University, a law professor and expert in constitutional law. We’ve been discussing the January 6th hearing and in particular, the prosecution of former President Trump. I’ve noted that in Georgia, it seems that a grand jury has been convened. Does Merrick Garland have that opportunity?
William C. Banks: No. Well, it’s possible that they would use a grand jury but it’s also possible that they could go directly to a criminal indictment. You know, a grand jury, of course, is also somewhat like the congressional committee, the house committee. It’s got a more freeform, open-ended writ and an opportunity to hear testimony without the requirement of the examination and cross-examination witnesses by defense counsel. If they go to trial, if they do prosecute Donald Trump, of course, he’s going to hire the best criminal defense lawyers that he can find. As I understand it from just following the news, he’s already begun to do that. And he filed some 12-page paper over the last two days after the third congressional hearing, the third house hearing that sounded a lot more lawyer like, than the usual ramblings of his political diatribes that are following the other two hearings. And this hearing pointed out that they’re going to pull every loose thread that they can to try to unravel a criminal prosecution instead present an individual who honestly believe that the election had been stolen from him and that it was entirely within the realm of his Article II powers is President of the United States to find votes in Georgia, in Arizona or in the other states that were in doubt.
J. Craig Williams: I’m not sure I would call them elite, but I would suspect that there are a limited number of criminal law attorneys available to President Trump for that.
William C. Banks: Oh yeah. I think that there are many who some who’ve already been to work for some of the Trump group, the Steve Bannon lawyers and others who already probably paid for their retirement through the good efforts of trying to represent those who were accused. I think Mr. Eastman is going to need good council. I imagine that the Mr. Giuliani is going to need good council. It’s a good time to be a criminal defense lawyer I would say.
J. Craig Williams: Yeah. There are a lot of candidates. Well, I wanted to take just a moment and tease perhaps a future episode. Maybe we can get you on for a more in-depth discussion of this point for a third time. But you have a very specific specialty of the use of drones and their use without declarations of war. Can you give us a little bit of detail on that because just — specifically the ethics of that?
William C. Banks: Yeah. Well it’s true. I have worked in that space for a long time and I — you know, I was around at the beginning, I was to say if you and I can both remember the Watergate hearings, we both remember the days after 9/11 when the U.S. first began in 2002 and 3 to rely on pilotless aircraft to inflict drone missile force at terrorist targets in battlefield first in Afghanistan. So, from 2002 and 3, when the first sort of crude hellfire missiles were fired from reaper drones in the Afghan battlefield as we both know the use of pilotless aircraft has become a really popular and sometimes number one tool in the quiver if you will U.S. decision makers both in the Pentagon and the CIA to quell the terrorist threat, mostly in the Middle East and South Asia but sometimes in Africa as well.
It’s remarkable I think as the technology has become more sophisticated, we are able to be more discriminating. Those who are responsible for the targeting with sophisticated photographic equipment could now see whether or not you or I have dandruff and the color of tie that we might be wearing right now, even from a great distance, from way up in the sky, that wasn’t possible in the early years. So, the downside of drone use, of course, is that they aren’t always good at discriminating between lawful targets, the bad guys, the terrorists and civilians who may be in the same vicinity. We’re getting better at being able to do that and even those who are extremely critical of U.S. drone use admitted that over the years, the number of so-called civilian casualties is a result of effective drone use has decreased and the percentage of civilians to appropriate targets has dwindled considerably over the years. Still, it’s very difficult to establish and advance in every case that the only fatality or only injury that will result from a targeted drone strike is the target himself.
In the Biden administration, there has been a concerted effort now that’s going on for the better part of the year and a half that the administration has been in place to try to refine the targeting criteria to set standards and parameters for on field commanders to utilize before using that technique in future counterterrorism operations. The problem with the effort, those standards are not yet final so far as any of us knows. The problem with the effort is that the Taliban now are the government of Afghanistan when Afghanistan fell apart and the United States withdrew precipitously last year, the whole fabric for counterterrorism in that region changed. We no longer have an ally in the government of Afghanistan. Indeed, we may have an adversary. So it’s far more difficult to get the job done in that particular place. It’s also true that the drones have been used this year in 2022 on strikes inside Somalia. Targeting Al-Shabaab militants there and again, the new targeting criteria. We don’t know exactly how much discretion field commanders are given. So I guess, you know, my take away the bottom line would be that the targeting has gotten better, the technology is much more sophisticated.
The United States continues to make mistakes, fewer mistakes than in the past, but because the device itself, the tool, the pilotless aircraft with so little risk to U.S. personnel is so effective in lots of circumstances it’s going to continue to be one that we see in counterterrorism.
J. Craig Williams: Thank you for that. And we’re going to assign to extend the invitation right now and ask one of our producers to make these arrangements with you. But you said two words that were, I think tremendous interest and could have launched a whole podcast, illegal target. So let’s tease that for the next issue that we have an opportunity to talk together. But I’d like to flip back now to give you the opportunity since we’ve just about reached the end of our program, and share your final thoughts Bill on the January 6th hearings and the majority of the conversation we’ve had so far and provide your contact information as well as anything you like to let our listeners know about.
William C. Banks: Thank you, Craig. I think the main takeaway from the hearings, whatever happens with the remaining hearings and whatever happens with the decision to prosecute or not prosecute Donald Trump, is their contribution to history. As I said at an early part of the program, I think the committee has done a marvelous job at documenting the record of the events leading up to January 6 and January 6 itself. As we know in 2022, a record has to be multimedia and this one certainly is. They have some incredible video footage, some of it deeply disturbing and all of it nearly illuminating that is going to be around to stand the test of time and to teach again our children, grandchildren and other generations about this threat to democracy. So I think that’s the value. That’s the takeaway from the hearings and whatever else happens there, a worthwhile endeavor for that reason. I’d be happy to be in touch with your listeners. My name again is Bill Banks. My email addresses is [email protected].
As I mentioned and I think you did Craig in the introduction, I’m the chair of the American Bar Association Committee, it’s called the Standing Committee on Law and National Security. It’s the oldest standing committee of the ABA. It was actually started by Justice Lewis Powell in 1962. So we’re coming up on our 60th anniversary this year. We plan a major conference in the fall. One of the things that the Standing Committee does that many of your listeners might be interested in, is we produce a podcast called National Security Law Today. It’s ABA americanbar.org@natsecurity. You can find it on the ABA website, of course. And you can subscribe on any of the platforms which you usually use to find your podcasts. We have a weekly podcast, I’m not the host. Elisa Poteat, a really distinguished justice department attorney is the host and she does a bang up job. So it’s been nice to be with you Craig and I look forward to the next opportunity.
J. Craig Williams: Well, thank you Billy. You’ve been a fantastic guest and very informative and some of the things you said are quite frightening but well, we’re in for a ride.
William C. Banks: Yeah, we are.
J. Craig Williams: It’s been a pleasure having you on the show likewise. Thank you. As a pseudo journalist here I guess in the sense that I present information to individuals and listeners, I did something today that I haven’t done before I think in my history of the long podcast that we’ve got here, is I called what President Trump has created a cancer on the country. And as much as I think that journalistically commentators like me don’t have the opportunity to make those statements, in this situation I think Professor Banks is entirely right. We are looking a civil unrest certainly in 2024 and as many other guests in this podcast have said over time, we have a lot of decision points coming in democracy that are going to present some serious questions for us all to face but we’re trying to fix it. Here we are talking about it and addressing it, so chime in if you think that you’ve got a point of view and let us know what you think.
Well, if you like what you’ve heard here today, or at least have understood what we’ve said today, please rate us on Apple Podcast, your favorite podcasting app. You can also visit us on the legaltalknetwork.com or you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us for another great legal topic. We’ll be back with a continuation on our series of Life of a Lawyer. But remember, when you want legal, think Lawyer 2 Lawyer.
Outro: Thanks for listening to Lawyer 2 Lawyer, produced by professionals at Legal Talk Network. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes. The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by, Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.