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The planning behind the Jan. 6 insurrection went far deeper than it initially seemed

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The House Select Committee investigating the January 6 assault on the Capitol holds its first public hearing tonight. It's at 8 o'clock Eastern and will be shown on most major network and cable news channels. My guest Luke Broadwater has been reporting on the investigations by the committee and the Justice Department into attempts to overturn the 2020 presidential election. He's a congressional correspondent for The New York Times and is one of the authors of a new article that pulls back and puts together the months-long attempts to declare Trump the winner despite the fact that all the evidence showed he lost. I spoke with Luke Broadwater yesterday morning.

Luke Broadwater, welcome back to FRESH AIR.

LUKE BROADWATER: Hi, Terry. Thanks for having me.

GROSS: When you stand back and look at the big picture, you see that just about every facet of government was involved or pressured to be involved in the effort to overturn the election - the White House, the White House chief of staff, lawyers that were allies of President Trump, members of Congress, the Department of Homeland Security, the military, state houses, election officials as well as far-right radical groups. What am I leaving out?

BROADWATER: I think you did a good job of summing everything up. The effort by Donald Trump and his allies to try to overturn the results of the 2020 election was such a sprawling and diffuse effort that it literally did range from local election board officials all the way up to challenges at some of the highest courts in the country. It involved discussions atop the Justice Department about firing, you know, the acting attorney general. It involved attempts to consider seizing voting machines by various federal agencies. It involved high-level discussions among the military about whether the National Guard would be deployed. Donald Trump tried just about everything he could think of to stay in power until ultimately, you know, a mob of his supporters came crashing into the Capitol that dark day two months ago.

GROSS: So do you feel like you see a pattern now that you didn't see before?

BROADWATER: I think we know a lot more now than we did before. And I think the craziness of the buildup to January 6, which many people probably wrote off at the time as sort of delusional or fanciful thinking among conspiracy-minded people, now looks a lot more serious in retrospect. You can look back now and see things that just seemed crazy at the time and see them now as part of an orchestrated plan to overturn an election and to keep a failed president in power.

And we just know a lot more detail now. I mean, there's been, one, the House committee investigation with more than a thousand witnesses interviewed. There's a sprawling Justice Department investigation with more than 800 people charged criminally. There have been books written. There have been thousands of newspaper articles from, you know, our paper, The New York Times, and many other fine journalists and other institutions. So we just - we know so much more now about the buildup to January 6 and what led to this attack on the Capitol than we did in the days right after January 6.

GROSS: Who do you think is most likely to face criminal prosecution?

BROADWATER: Well, what's happening now is the Justice Department, in my view, is working backwards from January 6. They've charged more than 800 people who were at the riot, and they're going back from sort of the low-level rioters - you know, the people who stormed the Capitol and chanted for - to hang Mike Pence and put their boots up on Nancy Pelosi's desk. And they're going to a level of organization right above them - so the leaders of extremist groups. We've now seen conspiracy and sedition charges against the leaders of the Oath Keepers, a right-wing militia group, and the Proud Boys, another right-wing extremist group. And so now we're talking about planning and execution for how to attack the Capitol and coming prepared in a very strategic way to commit violence.

We also know that the Justice Department is moving beyond even those groups. We've been able to obtain some subpoenas they've sent out investigating several of the schemes involving political actors to try to overturn the election. Those include a scheme that we call the fake elector scheme where they are investigating the people who put forward themselves as Trump electors from states won by Joe Biden. And the Justice Department is asking, basically, who put you up to this? And there's a list of lawyers' names involved with the Trump campaign that they want information about. We also know that the subpoenas ask for information about people in the executive branch and people in the legislative branch and also information about the planning of the rallies that brought the mob to Washington, D.C., and ultimately to the Capitol that day.

GROSS: Do you think the Justice Department has gotten to the level of Trump yet?

BROADWATER: We have not seen an indication that it's gone beyond Trump's personal lawyers. That said, you know, these were people who reported directly to Donald Trump. Rudy Giuliani, Sidney Powell, Cleta Mitchell - these are people who dealt directly with Donald Trump. So if they - and they were essentially carrying out his bidding, his wishes, to try to stay in power. So it's perhaps not an incredible stretch to believe that, you know, anything they're investigating regarding the Trump campaign and its lawyers does tie back to Donald Trump.

Of course, he has certain protections, both legally and politically, that perhaps people beneath him do not. And that is - you know, we have no tradition in this country of charging our former presidents. So, you know, I do think there is reluctance within the Justice Department, based on the people I've interviewed, that - to set a new precedent of charging a former president if it came to that. But, you know, Merrick Garland, the attorney general, has repeatedly said they will pursue the investigation wherever it goes and that no one is off-limits.

GROSS: The storming of the Capitol is not an isolated event. It's the most dramatic, most documented and most visible and physically threatening part of the larger story, but it's just one part. So how do you see the insurrection as fitting into the larger months-long story and the attempt to overthrow the results of the election?

BROADWATER: Well, it's the culmination of everything that came before it. And basically, the Trump campaign had run out of options at that point. At first, they had tried to keep the former president in power through the courts. You know, right away on election night, Donald Trump announces that he won the election, and - despite what the votes say. And so they try lawsuit after lawsuit to try to keep him in power. And that's the legitimate way to do it, right? I mean, these lawsuits were very dubious, and they were bogus. But that is the proper remedy to try to contest an election - is to go to the courts. And they try some 60-plus times and fail each time. Each one of these suits is thrown out. After that happens, they try schemes that are increasingly at odds with norms and standards in the law. So they then come up with this idea that, well, if the courts won't go along with this, it's because they haven't seen the evidence of fraud that we believe exists. And in order to get that evidence of fraud, we need to take control of the voting machines because there must be fraud. So they strategize with a number of theories for how they can take control of various voting machines. Obviously, this is a very dangerous and frightening plan. And at first, we believed it was mainly pushed by people with extreme views. But through reporting, we've been able to determine that Donald Trump himself actually entertained this plan and checked with three different agencies to see if they would carry it out. And each one rejected these attempts to seize voting machines. And so that plan sort of dies in the water once he can't get any of his agency heads to go along with it.

GROSS: Let's take a short break here, and then we'll talk more. If you're just joining us, my guest is Luke Broadwater, a congressional correspondent for The New York Times who's been writing about the investigations by the House Select Committee and the Justice Department into the January 6 assault on the Capitol and the monthslong attempts to overturn the results of the 2020 election. We'll be right back. This is FRESH AIR.

(SOUNDBITE OF LITTLE SIMZ SONG, "OFFENCE")

GROSS: This is FRESH AIR. Let's get back to the interview I recorded yesterday morning with Luke Broadwater, a congressional correspondent for The New York Times who's been writing about the investigations by the House Select Committee and the Justice Department into the January 6 assault on the Capitol and the monthslong attempts to overturn the results of the 2020 election.

So when previous efforts to overturn the election failed, then there was the effort to submit fake electors to the Electoral College so that the Biden electors wouldn't be getting to vote; Trump electors would be getting to vote. So tell us how that figures in.

BROADWATER: So, yes, after the Trump campaign realizes they cannot win through the courts or through seizing voting machines, they have to come up with a different strategy to keep Donald Trump in power, as that's their goal. And one idea they settle on is to have their lawyers fan out across the country and contact Republicans in seven different battleground states that were all won by Joe Biden and convince them to meet and certify slates of electors for President Trump instead of Joe Biden and then send those slates to the Congress and to the National Archives. But in order for this plan to have any legitimacy, they need the governors of those states or the state legislatures to approve of these slates, to say, yes, in fact, there was a contested election here. We have two slates of electors. We don't know which one is right. Here, Congress, please decide for us.

The problem for Donald Trump is no one's willing to go along with that plan. They do get the fake electors to sign these certificates, but no governor and no legislature is willing to meet to sign off on them. So they don't have any legitimacy once they get to Washington. And that's when Donald Trump becomes, one, enraged at those people who won't go along with it. You know, I recall Governor Kemp of Georgia receiving a lot of ire from the president because he would not acquiesce. But then they have to come up with a different way to try to keep him in power, to say, well, maybe we don't need to get governors to sign off on them; maybe we can just have Vice President Mike Pence accept these fake electors and throw out legitimate votes. And that's when the pressure really turns to Mike Pence.

GROSS: And Pence decides, like, he can't go forward with that. It's not legal. And he decides that after talking with his lawyers and with former Vice President Dan Quayle. And then Trump gets really angry with Pence and even says - as they're chanting, Mike Pence, even says, maybe they should hang Mike Pence. And we don't know what the tone was when he said that, whether he was saying that in a snarky way or, like, I-really-mean-it kind of way. But it is a demonstration of how angry he was. So how does all of this lead to the actual violence, the actual storming of the Capitol, the insurrection on January 6? Like, where does that fit in to the larger story? Like, connect the dots to that explosion.

BROADWATER: Yes. So the only reason to have a crowd assembled in Washington on January 6 is to put pressure on Congress and on Mike Pence specifically to overturn the election. There's never a rally on January 6 any other year. The purpose of that was to bring a crowd to D.C. and to the Capitol. So the very fact that they've assembled this crowd of thousands creates a sort of very hostile political environment where angry people are being told the election was stolen from them, and they're being directed to put pressure on those people inside that building. And Donald Trump directs the crowd to march towards the Capitol that day.

Now, when does it get violent? That is a question of substantial investigation. And how much planning went into the violence? And what we know now is that several militia groups and hundreds of people did, in fact, plan to commit violence that day. There's a lot of testimony that federal prosecutors have. There are a lot of guilty pleas coming out of the various court cases where - there were some people, obviously, who did get caught up with the mob, caught up in the moment. Maybe they didn't come to D.C. that day to commit violence against anyone. But there were people there who did have that plan, and they believed they were carrying out Donald Trump's orders. If you look at - and I believe the January 6 committee, at the hearings, will play this out in great detail.

But there's sort of a call-and-response dynamic going on between Donald Trump - his public statements and his tweets in particular - and then how the mob and the violent actors respond to them. For instance, Donald Trump's tweet on December 19 where he says - he encourages people to come to D.C. and he says it's going to be wild, that really sets in motion the entire rally. Before that, there were no permits filed. There were no travel plans to D.C. All of the sudden, you see thousands of actors immediately going to work.

GROSS: Oh, and didn't the right-wing groups, like, amplify that?

BROADWATER: Absolutely, yeah. They spread it around immediately.

GROSS: Through social media.

BROADWATER: Rally planners have started to file permits. Message boards exploded with this as their call to arms. And, you know, different people have wanted to overthrow the current system of government for years in America. And these people now saw this as their chance. They had a direction from the sitting president, who they loved, to do this, and so they got to work.

And if you look at a lot of the guilty pleas in the various court cases, many of these people are saying, we attacked the Capitol because we believe that's what Donald Trump wanted us to do. I stormed the building because I believed Donald Trump when he told me the election was stolen and democracy was on the line, and I was fighting for American elections. So they have - it has this great effect over the crowd.

Now, I think the thing that both congressional investigators and the Department of Justice are interested in is whether there's anything more than what happened to publicly. Was there any internal planning or any acquiescence to the idea that violence might be useful? And that's why I think the 187 minutes of inaction that the committee plans to dig into...

GROSS: Trump's inaction, Trump just, like, not doing anything to say, stop the violence. He just watched it on TV and did nothing for 3 hours?

BROADWATER: Yes. So on January 6, for more than three hours, it's believed Donald Trump did nothing to stop the violence. And we're going to hear testimony probably at one of the later hearings about people imploring him to do something to stop the violence and Trump seeming to, one, not want to do that and, two, perhaps enjoy it. And, you know, we reported in The New York Times recently about this testimony the committee has where Donald Trump said maybe they should hang Mike Pence. And so he did not react with horror once he heard what the crowd was doing, according to testimony the committee has. But he reacted with approval.

So - and I would note that we put that statement to Trump's spokesman for comment. And he attacked the committee for leaks, but he did not deny the contents of that statement. So also that day, Donald Trump tweets out that - while the Capitol is under siege, that Mike Pence didn't have the courage to do the right thing. So he continued to encourage the anger among the mob publicly as the violent assault was happening.

GROSS: So one of the things that you've learned recently has to do with Marc Short's role, and Marc Short was the chief of staff for Vice President Mike Pence. So how does Marc Short figure into the larger story now?

BROADWATER: Yes. One of the things we've learned - and Marc Short told the committee this - was that in the - during the pressure campaign on Mike Pence, Marc Short had become so concerned with what Donald Trump was doing to Mike Pence that the day before January 6, he went to a Secret Service agent assigned to Pence and told him that he believed President Trump was going to turn on Pence that next day and it would create a security risk for the vice president.

And so here's someone - and sure enough, that, in fact, did happen. You know, rioters stormed the building chanting, hang Mike Pence. So here's someone who could see what was happening within Donald Trump's mindset and his actions and what he was doing to Mike Pence and raised an alarm about it. And I think that's a very significant development in terms of Donald Trump's planning and mindset headed into January 6 and that it was perhaps not just a spontaneous event, but that there were some dark themes at play there.

GROSS: Well, let's take a break here, and then we'll talk some more. If you're just joining us, my guest is Luke Broadwater, a congressional correspondent for The New York Times who's been writing about investigations by the House select committee and the Justice Department into the January 6 assault and the monthslong attempts to overturn the results of the 2020 election. We'll be right back after a break. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF JEFF PARKER'S "SEA CHANGE")

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview I recorded yesterday morning with Luke Broadwater, a congressional correspondent for The New York Times who's been writing about the investigations by the House select committee and the Justice Department into the January 6 assault on the Capitol and the months-long attempts to overturn the results of the 2020 election.

So Jim Jordan is one of the people trying to discredit the House committee investigating January 6. If the Republicans win in the midterms and take back the House, Jordan will end up heading the judiciary committee. What has been his role in the efforts to overturn the election and in January 6?

BROADWATER: So right away, after Donald Trump loses, Jim Jordan immediately begins strategizing with top Trump officials, including the chief of staff, Mark Meadows, about what they can do to seed doubt among the electorate to try to keep Trump in power. Jordan begins forwarding emails about January 6 and about how Congress could vote to keep Trump in power on January 6 using sort of novel legal theories that had not been explored before. He also starts meeting and planning out a communication strategy where they will seek to discredit the election and, you know, rile up the base, so to speak, to believe Donald Trump really won.

If he is judiciary chairman, he plans to launch a series of investigations into Democrats that would serve, in some people's view, as payback for the subpoena that he has received from the January 6 committee. He plans to investigate, you know, Hunter Biden's laptop. The - Dr. Fauci in particular will be a target of his and various other avenues of investigation. And as of right now, it does look like Republicans have the momentum on their side to take back the House. Most pollsters who have looked at the battleground data will say that Republicans are in line to retake the House and, perhaps, pick up as many as 20 or 30 seats. So it's very possible that Jim Jordan, who did receive a subpoena from the January 6 committee and was involved in the strategies to overturn the election, will be the new House judiciary chairman.

GROSS: And he hasn't complied with the subpoena, right?

BROADWATER: He has not. He - the Republican leader, Kevin McCarthy, and several other Republican members of Congress have essentially refused to meet with the committee. They were asked for voluntary interviews at first. They refused those. Then they were issued subpoenas. And what Jordan did was, rather than flatly refuse to comply with the subpoena, he issued a series of demands on the committee, including turning over voluminous documents to him, before he would agree to an interview. And those demands made it so onerous on the committee that it was essentially a refusal. The committee has not yet said how they will respond to this refusal. But as of right now, they have no testimony from Jim Jordan or any of the House Republicans about their role in the fight to overturn the election.

GROSS: What do Republicans want to investigate about Fauci?

BROADWATER: Yeah. So they think he misled the public on - about the lab leak, about whether the coronavirus was originated from a lab or originated elsewhere naturally. They think that he lied to the American people multiple times. They - basically, they think he is a target to - for them to - they think he's unpopular with their base. They think he is someone who they don't like. He doesn't like them. And they're going to try to vilify him.

GROSS: A significant portion of the first hearing will focus on the Proud Boys - of the first public hearing by the House select committee. The Proud Boys are a far-right group. Five members, including the former leader, Enrique Tarrio, were indicted on Monday of seditious conspiracy. What does that mean, and why is it so consequential?

BROADWATER: Well, it gets beyond the idea that this was a spontaneous attack, that it was just a mob that got out of control - people got too excited that day. This gets to, actually, the planning of, essentially, political violence. The one thing that's interesting for me to look at, and I think the committee as well, is the connections that the Proud Boys have to Republican politics, and connecting the violent extremists and the militia groups with the Republican Party and Republican political actors. So for instance, Enrique Tarrio and some of the Proud Boys are members of Latinos for Trump. So they were sort of brought into the Trump campaign as a way to motivate supporters and get certain voting blocs to support the president. At the same time, these same people, according to federal prosecutors, are planning a seditious attack on the government.

So you have - and I think you see a similar thing with the Oath Keepers, where you have the Oath Keepers providing security for Roger Stone, an ally of Donald Trump. And then those same Oath Keepers are seen as part of a very organized force marching into the Capitol that day. So you're seeing an overlap between people in Republican politics and also people as part of these militia or right-wing extremist groups. And I think we're going to see a lot of exploring and investigation of those themes at these hearings.

GROSS: Yeah. Well, the Proud Boys and the Oath Keepers are becoming very closely aligned and kind of intermeshed with part of the Republican Party. So for instance, in Miami-Dade County, the Proud Boys - several Proud Boys have become part of local politics. About a half a dozen current and former members of the Proud Boys have seats on the Miami-Dade Republican Executive Committee. Has anything like that happened before, where people from such a far-right group have become embedded in the Republican establishment of local politics?

BROADWATER: It really is a shocking development. I mean, we're talking about a chapter of the Republican Party, which was once a stronghold of the Bush family, now has five current or former Proud Boys involved. But we're seeing more and more of this, Terry, across the country. The leader of the Republican Party in Wyoming, a fierce opponent of Liz Cheney, is a member of the Oath Keepers.

I did a story shortly after the attack on the Capitol where I looked at members of Congress and their connections to these militia groups. And it actually isn't very hard to find examples where members of Congress go to Proud Boy meetings or go to Oath Keeper meetings or go to joint events or have the Oath Keepers provide security for them or the Proud Boys provide security for them.

So it is very much - it has been allowed and perhaps even encouraged to bring in these militia groups and bring in these extremist groups into the right flank of the Republican Party. And to the extent now that we're seeing they're taking seats of power and seats of positions on various state and local boards, I think that, you know, most people would be concerned by that.

GROSS: If you're just joining us, my guest is Luke Broadwater, a congressional correspondent for The New York Times. We'll be right back after a break. This is FRESH AIR.

(SOUNDBITE OF KYLE EASTWOOD'S "SAMBA DE PARIS")

GROSS: This is FRESH AIR. Let's get back to my interview with Luke Broadwater, a congressional correspondent for The New York Times who's been writing about the investigations by the House select committee and the Justice Department into the January 6 assault on the Capitol and the monthslong attempts to overturn the results of the 2020 election.

So, you know, in the sedition case against the Proud Boys, prosecutors say that a week before the attack, one of Enrique Tarrio's girlfriends - and again, he was a former leader of the Proud Boys - that the girlfriend gave him a document titled "1776 Returns" and that that had a detailed plan to monitor and storm government buildings near the Capitol on January 6, but it didn't mention the Capitol itself.

And there were other references in texts to and from Tarrio referring to 1776. And one of them, a text back and forth between Tarrio and a Proud Boy member from North Carolina, made a reference not only to 1776, but to the Winter Palace. What is the significance of 1776 and the Winter Palace in the context of these communications?

BROADWATER: Well, those are two, of course, you know, historic references - one to the Russian Revolution and the other to the American Revolution. And so I think prosecutors saw those as demonstrating the mindset that Enrique Tarrio and the Proud Boys had going into January 6 where they're talking specifically about historic events and where - in which there were, you know, overthrows of what people believed were authoritarian regimes. And so whether you're looking at American history or Russian history, that was the plan and the mindset of the Proud Boys headed into January 6.

GROSS: So that can be used as evidence, that the Proud Boys wanted to overthrow the government.

BROADWATER: Yes. And I mean, it - and it's not just beyond the language. It's beyond what was actually in the plans where they were talking about taking over various government buildings around the Capitol that day. So, you know, we'll see how the defense responds to these allegations. But it does seem like there's a plan here written down about taking over government buildings that is using language of a revolution.

GROSS: What does sedition literally mean legally?

BROADWATER: Sedition under a federal statute is - can be applied to people who advocate the overthrow of the federal government by force. So you have to have the intent to overthrow the government, and then you have to have the plan to do it by force. So it can't just be someone who's, you know, ranting against the government in their home office. They have to actually take some steps to carry this out violently.

GROSS: Do the Proud Boys and the Oath Keepers and other militia groups subscribe to the great replacement theory, that Jews and Black people and immigrants are trying to replace or will succeed in replacing white people and this will irreparably damage America? We will no longer recognize America.

BROADWATER: Well, I can't speak for all the members of those groups, but we do know that the great replacement theory has been pushed by leaders in the Republican Party usually under the framing that this is about political power. So you look at an ad Elise Stefanik ran regarding immigration. She very much played on this replacement theory idea, that Democrats were encouraging immigrants to come into the country to take away the votes of the real American, so to speak. And it's not too hard to realize the code that they're talking in there, which is to sort of scare white people, that their votes are being taken away by immigrants. Obviously, this was something the mass shooter in Buffalo believed in.

And so after that mass shooting, there was a lot of scrutiny on things that Republican leaders are saying but also Republican pundits and people on Fox News, what they're saying and how this has spread out among the masses. You know, one thing we did see on January 6 is we saw a lot of racist imagery at the Capitol, people flying racist flags and wearing racist T-shirts. And, you know, it was very much intertwined with the racism that we saw that day as well as just trying to keep Donald Trump in power.

GROSS: Do you think it's fair to say that it's a mistake to think of January 6 as something that happened in the past but rather something that's continuing in terms of the ambitions of the far-right wing of the Republican Party?

BROADWATER: I think it's still a threat, particularly as you look at what's happening at some of the state boards and in some of the elections around the country. We know that, basically, our democratic institutions are only as good as the people who occupy the seats of power. You can have a law that says one thing, but you need people to actually enforce that law. And what we saw around the country during the runup to January 6 was a lot of people in local office who actually stood up to a pressure campaign from Donald Trump and his allies. Donald Trump was calling people directly. Rudy Giuliani was calling people directly.

And if they could have gotten a few more boards in various seats in the country to refuse to certify a legitimate election for Joe Biden, they perhaps could have stolen it. And so if they're able to win some races, put in people who are just simply loyal to Trump no matter what the vote says, we could have a very - I think we could have a great - a very great threat to democracy in the next election if we don't have people in positions who are willing to follow the will of the voters instead of the will of Trump.

GROSS: Well, let's take another break here. If you're just joining us, my guest is Luke Broadwater, a congressional correspondent for The New York Times. We'll be right back after a short break. This is FRESH AIR.

(SOUNDBITE OF BENJI MERRISON AND WILL SLATER'S "BETWEEN FEEDS/AMOROUS PEACOCK")

GROSS: This is FRESH AIR. Let's get back to my interview with Luke Broadwater, a congressional correspondent for The New York Times who's been writing about the investigations by the House Select Committee and the Justice Department into the January 6 assault on the Capitol and the month-long attempts to overturn the results of the 2020 election.

John Eastman, who is one of the lawyers allied with Trump - he was one of the architects of the fake electors scheme or schemes. And in March, a federal judge in California ruled in a civil case that Eastman had likely conspired with Trump to obstruct Congress and defraud the U.S. by helping devise and promote the alternate elector scheme and presenting plans to Mike Pence suggesting he could exercise his discretion over which slates of electors to accept or reject at the January 6 certification. So the judge wrote that this scheme was, quote, "a coup in search of a legal theory," unquote. So what does that ruling mean? Where does it go from there? Is that ruling being appealed? Like, what weight does that ruling carry?

BROADWATER: Well, so functionally what that ruling did was it caused John Eastman to have to turn over documents to the committee. John Eastman had sued the committee trying to block its subpoenas. One of the things John Eastman said is these documents are covered by attorney-client privilege. And that's a legitimate argument for lawyers of a person to say, well, I cannot divulge communications with my client. That said, the committee responded to that by arguing that attorney-client privilege is only valid if there's no crime committed.

So there's something - there's an exception called the crime-fraud exception. And what that means is, essentially, a lawyer can't, you know, launder drug money for a client or carry out some sort of crime for the client. And they argued, essentially, that John Eastman and Donald Trump had been plotting to commit a crime by what they were doing with regards to January 6, and a judge agreed. The judge said, looking at all the evidence, that the documents John Eastman was trying to protect, at least some of them, would fall under the crime-fraud exception and that it was more likely than not that Trump and Eastman had violated two federal felonies. One was conspiring to defraud the American people, and the second was obstructing a official proceeding of Congress.

So, you know, in terms of - functionally, it just means John Eastman had to turn over documents, but it did send a huge message to the committee and, I think, to law offices across the country, including the Justice Department, that - here you have a sitting federal judge say, I've looked at the facts. I've looked at the evidence. I've applied a civil standard, and I believe that there were crimes committed here. So if you were looking for a test about whether anyone in the judicial mindset believed that January 6 and the buildup to it was a crime, it was a pretty dramatic moment when that decision came down.

GROSS: Have you seen compelling evidence that Trump was directly involved in plans to overturn the election and committed acts that could be called sedition? Whether he's actually charged with that or not, 'cause it's tricky to indict a former president, what is the most compelling evidence that you've seen of criminal activity or sedition, which is criminal, that Trump was involved in?

BROADWATER: So the evidence that I've seen of crimes, I think, were most clearly laid out by that federal judge in California, where he said - essentially, what happened was the plan to overturn the election through the fake electors scheme at first started as sort of an academic exercise where people were looking at old federal codes and old elections and saying, well, what if we did this? And what if we did that? But eventually, it became an actual plan of action. And at that moment, once they started strategizing about how to disrupt the official counting of documents to put - to certify an election for the person chose by the voters, once that became an action plan, that that was an actual crime.

And one of the things the House committee has done is they have documented how, time and time again, Donald Trump was told by top advisers both within the Justice Department and the White House counsel's office that his claims of fraud were not true. And so - but he kept repeating them anyway to, one, try to stay in power and, two, rile up his supporters. And so what they're arguing and what a judge agreed is this amounted to a fraud on the American people.

And so if either of those crimes, either conspiracy to commit fraud or disrupting an official proceeding of Congress, could be proven beyond a reasonable doubt, then those would be your elements of a criminal case. I have not seen the committee make the case for a sedition charge against Donald Trump. We know that sedition is being charged against, you know, some of the domestic violent extremists. But I have not heard talk about that charge being applied to President Trump.

GROSS: You know, in the past, the attempts to prove criminal activity in the White House have failed. I mean, the Mueller report - everybody was saying, oh, the Mueller report, that's going to, like, blow the roof off. And it didn't. And there were, really, no consequences for Americans. And, you know, there have been other investigations, and nothing's really come of it. So what do you think the odds are that either the January 6 committee or the Justice Department investigation will actually lead to any people being held responsible for what happened?

BROADWATER: Yeah, it's a good question. It does - you know, I think a lot of Democrats look at the Trump presidency, and they saw outrage after outrage. And they cannot understand why he wasn't thrown out of office or put in jail. And, you know, there have been numerous congressional investigations into that. I do think here, though, we have some pretty damning evidence that the Justice Department can use as they make their way up the ranks.

Will that ever happen? Will they ever get into the Trump White House or the Trump campaign? Will they move beyond the Proud Boys and the Oath Keepers? I don't know. I can't make those predictions. But we do know at least one federal judge has said there were crimes committed by the president. And if that's any guide, there's a potential that the Justice Department could follow that lead and pursue those crimes even higher.

GROSS: Well, Luke Broadwater, thank you so much for your reporting. And thank you so much for coming back to our show. I really appreciate it.

BROADWATER: Thanks so much, Terry. Thanks for having me.

GROSS: Luke Broadwater is a congressional reporter for The New York Times. Our interview was recorded yesterday morning. If you'd like to catch up on FRESH AIR interviews you missed - like this week's interviews with comic Sam Jay, host of the HBO series "PAUSE," or women's basketball star coach Dawn Staley - check out our podcast. You'll find lots of FRESH AIR interviews. And if you'd like to read about what goes on behind the scenes at FRESH AIR, check out our newsletter. You can subscribe via our website at freshair.npr.org.

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GROSS: FRESH AIR's executive producer is Danny Miller. Our senior producer today is Sam Briger. Our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Lauren Krenzel, Heidi Saman, Therese Madden, Ann Marie Baldonado, Seth Kelley and Joel Wolfram. Our digital media producer is Molly Seavy-Nesper. Thea Chaloner directed today's show. I'm Terry Gross.

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