Elie Honig: The January 6th Insurrection Isn’t Over

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Music for this episode: Penny the Snitch by Ikebe Shakedown.

Transcript:

Episode84

Elie Honig 00:00

If you’re looking for real consequences and arrests, it’s got to come down to the DOJ… Merrick Garland’s failure to bring the real criminal charges is so pointed because these guys know that you’re just playing pattycake when it comes to Congress and contempt and misdemeanors and things like that… But when you start talking about seditious conspiracy, which I think applies here, and meaningful obstruction of Congress, that’s a little bit of a different ballgame… But if Merrick Garland is sitting there twiddling his thumbs on the sideline, no one’s going to be deterred from anything.

Sam Goldman 00:45

Welcome to Episode 84 of the Refuse Fascism podcast. This podcast is brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of this show. Refuse Fascism exposes, analyzes, and stands against the very real danger and threat of fascism coming to power in this country. In today’s episode we’re sharing an interview with Elie Honig. Elie is a senior legal analyst at CNN, author of bestseller “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” and host of the Up Against the Mob podcast. I recently chatted with Elie, a former federal and state prosecutor, to get his take on the January 6th investigation, the Department of Justice, and the assault on the rule of law.

First, let’s talk about some developments from this past week as they relate to the continued fascist threat. The trial of three white men who murdered Ahmaud Arbery, an unarmed 25-year-old Black man who was out on a jog through Brunswick, Georgia on February 23, 2020, is now underway. Only one Black person will sit in the jury to hear the case against Gregory McMichael, his son Travis McMichael, and their neighbor William Bryan. This is taking place in Glynn County where more than a quarter of the population is Black and in a case that is unequivocally a modern-day lynching. The Judge Timothy Walmsley, acknowledged there was intentional discrimination in choosing the jury and then gave the racial composition of the jury — 11 white people and one Black person — the green light, refusing to reseat eight black jurors.

Here is what attorney for the Arbery family, Benjamin Crump, said in his conversation with Amy Goodman on Democracy Now on November 5 when discussing the case: “It’s very disappointing, Amy, not only for Ahmaud’s mother and father, but for everybody who’s been following the case, the fact that you seem to have a jury that has more of the perspective, more of the commonalities with the killers of Ahmaud Arbery than the perspective of Ahmaud Arbery, this young Black man who literally was killed for jogging while Black. And it’s troubling because the court, when they granted 24 peremptory strikes from the beginning, that was troubling because, you see, they can systematically try to just strike Black people 24 times. That’s too many strikes. So, everybody who’s been looking at this case is saying that not only from the day one, when the police came out and tried to give cover for the killers of Ahmaud Arbery for jogging while Black, it seems that our criminal justice system gives them cover, too, when they are being brought to the tribunal of justice.” We’ll be paying close attention as the case unfolds, as it relates completely to the fascist mobs and threats of violence that are being unleashed to build the fascist movement and consolidate power, and it reflects the ways in which there is an assault on the rule of law in this country.

Those attacks on the rule of law also made their way to the Supreme Court this past Monday as they heard arguments about SB 8, the Texas abortion ban, specifically its bounty hunter element, which the laws’ authors openly bragged made it impervious to judicial review. As NYU Professor Melissa Murray wrote, “The court seems to understand that the very legitimacy of the court as an institution is in play here, and Justice Kagan underscored that. So did Justice Sotomayor.” This is exactly the fascist strategy in packing the Supreme Court and the State Houses. In one fell swoop they’re dismantling fundamental rights of the oppressed and remaking key “democratic” institutions to blatantly serve fascism.

After the Virginia election, everyone who’s not a fascist seems to be playing the blame game over electoral strategy. But fascism’s advance runs deeper. Let’s talk about the Republicans’ winning strategy and what it tells us. Virginia has been a focal point in the strategy of making the GOP the “party of parents,” as Jim Jordan called it. That has nothing to do with the party voting as a solid bloc against parental leave and school funding, and spending decades cutting any benefit they can get their hands on, but on trying to control what their children are “exposed” to.

This has come together in three major campaigns that have gone into overdrive since January 6: trying to legislate trans people and especially trans youth out of existence; mobilizing, threatening and often violent anti-mask and anti-vaxx mobs to school board meetings; and the effective banning from schools of any discussion of racism, of white supremacy. It was the last of those in particular that many credit with winning Youngkin the governorship. In one ad a conservative activist talks about how disgraceful it is that her son had to read Toni Morrison’s Beloved in high school. This mobilized the Republican fascist base in droves and helped them win a high-turnout race in an important state. Some analysts have said that it wasn’t the racism that won the race but a reflection of nationwide backlash against an unpopular democratic president, or simply a swing of the pendulum.

But let’s talk about context here: Where, along the road to fascism, is this pendulum swinging? With a party willing to unleash violent mobs to overturn elections, who stonewall congressional investigations, and spent four years in power undermining the rule of law here and abroad, what does it tell you that millions in a purple state are mobilized to vote for someone based on their willingness to ban books about slavery? As this week’s elections in Virginia show as well, Republicans don’t have to cheat to win. The danger is real that Republican legislatures in states like Arizona, Georgia, Texas erect enough barriers to the ballot and destroy enough democratic norms that the GOP simply can’t lose a race, especially if it’s close.

The chair of the House Select Committee investigating the January 6 siege of the capitol told reporters this week that he has signed about 20 subpoenas that will be “going out soon.” While we don’t know who is on that list yet, we do know that as of now it includes no lawmakers. FreeSpeechForThePeople.org is urging Attorney General Merrick Garland to resign from his post after nine months of inaction to hold Trump and his allies accountable for inciting the January 6 insurrection and other federal crimes they may have committed. It’s a good thing that people are refusing to accept this accommodation to fascism. That said, it’s high time for people to recognize that it isn’t just one or another individual doing this, but that “democratic” norms, institutions, and the Democratic Party can’t be relied on to truly handle this threat. As revolutionary leader Bob Avakian has aptly stated, “The Democrats are committed to ‘playing by the rules’ and ‘relying on the norms’ of ‘democratic’ capitalist dictatorship, while the Republicans are moving to tear up those norms and rule through an open, undisguised capitalist dictatorship.” As I’ve said before, the Republi-fascist Party has rebranded them as “traitors.” Nevertheless the Democratic Party has proven repeatedly that they will collaborate with the GOP, or at least die trying. This cannot and will not beat back the fascist threat. It’s on us. Now is the time to sound the alarm and prevent the consolidation of this American fascism.

With that, here is my interview with Elie Honig. So today we’re talking with CNN Senior Legal Analyst, someone who’s a former federal and state prosecutor, best-selling author of “Hatchet Man,” and host of Up Against the Mob podcast. I’m talking with Ellie Hoenig. Welcome.

Elie Honig 08:26

Sam, thank you for having me. I’m excited to be with you. Given that you are a kindergarten teacher by day, I think that you will see right into my psyche as we do this.

Sam Goldman 08:35

Well, let’s find out. I like to start big and go smaller from there into the details. We’ve been talking about on the show with other lawyers that we’ve had on about needing to understand what happened on January 6, and in the lead up to that, this slow coup, if you will, specifically the role Trump played precisely because the danger isn’t over. You see Trump — I don’t want to say anything that wasn’t official, but it seems he’s running again and doing something on the basis of the Big Lie. Whether he runs or not, he’s definitely whipping up his followers to continue that mantra. We saw even today, so many of the GOP young guns are people who believe in the Big Lie. So, less than a year later, we’re still in a situation that we can agree on is fraught for the state of democracy. Listeners know that the January 6 Commission in Congress is conducting hearings. Some are private, some are public. What are some of the biggest revelations that have emerged that you think people who are concerned about democracy in this country should be paying attention to?

Elie Honig 09:44

Sam, first of all, I agree with the premise that January 6th did not end on January 6th or January 20th when Joe Biden was inaugurated. I agree that it was based on a lie and an intentional lie perpetuated by Donald Trump and others around him. And yes, I believe it also will be a prelude, or people will try to use it as a prelude, for whatever comes next, whether or not Donald Trump runs in 2024. And that’s why it’s so critical.

First things first, let’s just get all the facts. Before we even think of, or why we think about what accountability needs to be, we have to get all the facts. We don’t have all the facts yet. When I say we, I mean, we collectively. I mean, we as Congress, as far as we know, prosecutors — and we’ll talk about that a little bit later. As we have gotten more facts in, the January 6 committee has already uncovered some new things and media has done a great job uncovering new things. Every new piece of information we’ve learned has really gone towards one conclusion, which is: This was part of the plan, January 6th. This was something that people expected to happen, hoped would happen, stoked along. It wasn’t just Donald Trump acting alone. He had ready and willing assists from people like Mark Meadows and John Eastman, this lawyer who we’re learning about now and Jeffrey Clark, inside the Justice Department. The list of accomplices is getting longer and longer.

That brings us to two main ways we’re ever going to get answers and accountability here. One is Congress and two is prosecutors. Congress has done a good — not great — but good job so far of getting answers. They’ve been fairly aggressive in who they’ve subpoenaed. They’ve gone to battle on Steve Bannon. This week, we’re going to see the battle over the documents at the National Archives. Keep an eye on that, because that’s going to be really crucial. The January 6th committee subpoenaed documents from the National Archives, which would house all of the documents from the prior administration.

We just learned the other day from a new court filing, some of what those documents are about. They are documents by and about the inner, inner circle; Trump, Pence, Caitlin McEnaney, Mark Meadows, Stephen Miller. They are handwritten notes, call logs daily, sort of minute by minute diaries of what the President does. These documents are going to be so crucial now there’s going to be a court battle over them. I’m fairly confident that Trump’s going to lose this, for reasons we can go into. but I think he has a losing legal argument. It’ll take a bit of time; courts need to move quickly here, but so far, the district court has been moving quickly. They have an argument Thursday November 4, and I think the ruling will come down within a week or so of that. Then we’ve got to go through appeals and all that.

So that’s step one. The problem — I shouldn’t say the problem — but the limitation with Congress is all Congress can really do is make findings. They can write papers and say, we hereby find this and issue a report. But if you’re looking for real accountability and consequences, Congress can’t do that. They can refer things over to the Justice Department all day long, but there’s no magic to the referral. I was a prosecutor for 14 years. We get referrals all day long from everyone as high as Congress to just a civilian who thinks his neighbor committed some crime on his property, some minor thing. So if you’re looking for real consequences and arrests, it’s got to come down to DOJ.

Thus far I think DOJ has come up well short of the mark with two respects. One, the charges that Merrick Garland and DOJ have brought against the January 6th rioters have been short. They’ve charged misdemeanors, trespassing, that kind of thing when felonies are, I believe, applicable to everyone who entered the capitol that day, and I can lay out why. There is zero indication that they’re taking any kind of serious look at anyone above the ground. Obviously, the people who stormed the Capitol, smashed the windows and all that, they’re the easy targets. But Merrick Garland vowed during his confirmation that he would follow the evidence up as high as it goes, and wherever it may lead.

I’ve not seen one iota of anything to indicate that they’re looking in any serious way at Donald Trump and John Eastman and Mo Brooks and Rudy Giuliani and whoever else may have been involved. People say, how would you know — you’re not in DOJ? Okay, true. There’s a chance DOJ is doing this on the super down-low with an extremely secret inner circle of people. However, the vast majority of times we would know, either through reporting or if they were subpoenaing people, we would know. Those are public. If you get a subpoena from DOJ, except for in very rare circumstances, you’re free to talk about it and the media learns about it, you think about prior investigations. So there’s not a single indication where ordinarily — not always, but ordinarily — you would expect to see something.

Sam Goldman 14:07

That was really helpful. It made me think of a few other aspects of this story. One of the questions that I’ve been wondering about is: The public, we’ve learned a lot of the revelations a lot of the facts of what led up to the day. Yes, there have been some public hearings, but a lot of it we’ve learned from the media — the 3-part series in the Washington Post, or Hunter Walker’s piece in the Rolling Stone — and is this type of journalism and the way that we’re learning about this crime, which I would call it a crime. Is that typical? I wonder whether it’s like persecution in the media as opposed to real prosecution, because there isn’t a case. How right is this? Do you think some way short of Congress, there’s a building of a case?

Elie Honig 14:57

The media plays a vital role in all of this, in any wrongdoing, in any scandal. If you go back to Watergate, Woodward and Bernstein, two famous journalists who blew the lid off of that. So media always has a role to play. In recent years, in the last three or so years when I’ve been involved in the media, the media has really done a remarkable job of getting to the truth often before it comes out through official channels, whether it’s through DOJ or through Congress. If you look back at the Muller investigation, when that report finally came out in the middle of 2019, 448 single-spaced pages, I remember I was at CNN when it came out. I was frantically flipping through it with a whole team of journalists and reporters. We very quickly realized we know all this already, you know, not every word of it. But there wasn’t really too many new things that we hadn’t heard. That, I think, is a tribute to the great job that journalists have done.

The same goes for January 6. If you could separate it out, I think we’ve learned a heck of a lot more and a heck of a lot more detail a heck of a lot quicker through the media about what really happened on January 6. Through Congress, we’ve learned next to nothing from DOJ. Now, that’s not to say that the media is inherently better than Congress. It’s just a different entity with different timetables, different rules. Congress is a slow moving beast and DOJ operates in secrecy by design. I think the media, though, has really done an exceptional job, an extraordinary job, writ large, in telling the story of January 6. You mentioned a couple of really important pieces. I know not to show for the home team, but we’ve had several major breaks and revelations coming through CNN. That’s what the media is there for. I can’t think of a major media story that’s come out on January 6, that’s been disproven or debunked. That happens, rarely, nobody’s perfect. But everything that we’ve seen come out has been backed by documents by video by reliable witnesses. So, yeah, the media plays a really important role in this.

Sam Goldman 16:47

Thanks for that. One of the questions that listeners have asked, and I understand that you are not in Congress, but you might have insight on this. People talk about, there’s members of Congress who were clearly involved in organizing the insurrection. Why haven’t they been expelled yet?

Elie Honig 17:05

Expulsion is constitutionally available. Congress can expel its members with two-thirds of the vote. It’s almost never done. But you’re raising a very important question for me, which is how aggressive or passive — and, as you can tell, I’m guessing we’re going to end up on the far passive side of things — will Congress be about enforcing accountability from its own? If you notice that first batch of subpoenas that the House Committee sent out, it was to Mark Meadows and Cash Patel and Steve Bannon and Dan Scavino and then Jeffrey Clark. None of them are members of Congress. However, there clearly are members of Congress — I don’t care if you like these people or hate these people — who have direct information, who were in direct contact with Donald Trump on January 6th.

We know for a fact Kevin McCarthy had a really antagonistic conversation with Trump on the 6th. Despite Kevin McCarthy’s later turn around, he apparently got on the phone with Trump and said you need to call your people off and Trump said something like “Apparently they’re more upset about the election than you are, Kevin.” And Kevin McCarthy said to him, “who the eff do you think you’re talking to here?” Jim Jordan has reluctantly stammered that he talked to Donald Trump several times on January 6. If you’ve seen those clips, they’re ridiculous, of him trying to ~”I think I did. I did. I talked to him all the time.” Jim Jordan talked to Donald Trump on the 6th. Mike Lee, Senator Mike Reed, Senator Tommy Tuberville. We know for a fact that those four talk to Donald Trump on January 6 at key times, so they are all relevant witnesses.

The question is, if and when they refuse to testify, is the committee going to have the guts to subpoena their own? I think the answer is going to be no. I think they’re going to come at us with mealy mouthed, well, we had the information anyway, we didn’t really need it. The truth of the matter is they just have these unwritten rules of gentility like those shall not press one another too hard. I think they’re going to come up short on that. Maybe I’m wrong. Maybe they will play hardball. Maybe they’ll get McCarthy and those guys to testify without a subpoena, but I would not bet on that. In terms of expulsion, that’s just not going to happen. They’re just too conservative. I mean, lowercase ‘c’ conservative. They’re not going to take that kind of drastic action. They don’t have the spine for it or the political will for it. Do you think that there’s any action that would change that? Is it just so out of the wheelhouse that they would do that? Or is there a point where there is a line that someone would cross where they would say: Oh, that is wrong, that is beyond what we will allow of leaders in this country?

That’s a good question. In normal times I would say, of course. All of this stuff, if you step back historically and think about all of that, if any of this had happened, if one-tenth of this had happened in 2005, or 1998, or 1984. I’m just picking random years here, but it would have been the most unthinkable, enormous scandal the country had ever seen, but our tolerance for all this stuff has seemingly just built up to the point where there seem to be frustratingly few consequences for conduct that would be arguably illegal and certainly unpatriotic and dangerous and abusive of power. What could do it? The only thing in my mind that would do it, you would need a smoking gun? In other words, you would need a recording or an email written by that person. Because if a witness comes forward and says Congressman so-and-so said to me, while they were attacking us, “Gee, isn’t this great? This is just what I planned with the President.” Let’s say McCarthy, hypothetically, would just say, “I didn’t say that. That person’s lying.” That’s what everyone does. There would need to be a smoking gun. It would need to be a recording or an email, and it would need to be that bad. It would need to be, “Hey, Mr. President, isn’t this awesome? I hope they capture Mike Pence”, or something like that.

I think part of the reason why we’re seeing such a pitched legal battle over those National Archives documents and over the testimony is because the revelations here have only gotten worse and worse. When people are fighting to avoid testifying and to keep things out of the public view and to cover things up, it’s for a reason, usually. I’m not saying there is a smoking gun out there like that. But if there’s ever going to be one, it would be in those National Archives documents, or in the testimony of people who are loyal to Donald Trump to the point where I doubt they would come forward and voluntarily testify about something like that. So it’s unlikely but I think you would need to see a real irrefutable smoking gun.

What you were saying about what people’s tolerance has become — I’m not just talking about those who are listening, everyday people and their tolerance, but also — the tolerance of those who are in power, clinging to norms and the rule of law that Trump and his gang have no desire to respect, to uphold, and are either shredding the rule of law outright or changing the law so that it fits their aims. One of the themes of my book “Hatchet Man,” available on Amazon.com, bestseller. I have to do a plug, it’s a podcast. One of the themes of my book is that under Bill Barr and Donald Trump, the Justice Department, where I grew up as a prosecutor, was completely taken out of its norms. Bill Barr repeatedly broke what I called the Prosecutors Code, which is, yes, we have written rules or regulations and all that, and they’re important, and he broke several of those, but Trump and Barr together, and Trump also in other contexts revealed that a lot of our government just comes down to the good faith of the people in it.

A lot of what we do depends on adherence to norms and traditions and values. That’s not to say that no norms should ever evolve. Some of the most important things that have happened in our country have been because somebody has said: Wait a second, do we need to continue doing things this way? All the various civil rights movements have depended on questioning the way things have been done. But there are good norms and bad norms. I think norms like “Tell the truth,” is an important one, or “Prosecution should not be political,” is another sort of uncontroversial one. All of these things have been withered away. When you see what Trump did and what his enablers, Barr very high on the list among them, did was they said: Screw it, we’re going to do whatever is best for us in the moment, we’re going to trample norms, we’re going to trample values. We’re going to bank on the fact that our institutions and our political opponents are not going to have the strength and the ability to do anything about it.

Now, to some extent, there’s limits on what can be done. But again, I’ve been critical of Merrick Garland, I think he’s really come up short on that. I get that Merrick Garland wants to restore the Justice Department to sort of an equilibrium, and he’s done a good job: a) He hasn’t lied to the American public — good start for an Attorney General — and b) He has made efforts to keep DOJ out of politics. But I argue that the problem is he’s gone too far with that. It’s one thing to say I’m not going to prosecute or decline to prosecute for political reasons. That’s good, and that’s right, but I think every one of Merrick Garland decisions, it looks to me from the outside, as if he thinks to himself: If I do this, will it be even perceived as politically controversial as a shot across the bow to Trump or Barr or January 6, or whatever. If so, pass.

I think he’s been too passive as a result, and as a result of that, I think it’s becoming more and more clear to people who were involved in January 6, who motivated January 6, they’re not going to have any consequences. The worst consequence they’re going to have is paper. They’re going to have a report written by the January 6th committee that’s going to say this was horrible, and these people are to blame for it. They’re going to say, it’s BS and it’s a hoax. They’ll just move on that, like that’s not real consequences to Donald Trump and the people around him. I think, unfortunately, a lot of people have learned that lesson from Donald Trump.

Sam Goldman 24:04

I really agree. I think that there’s this heaviness of this continuing, of what this leaves the door open for and what it signals for the future of what what will be condoned. When yesterday’s outrage becomes today’s compromised position, becomes tomorrow’s new normal. This is extremely ominous. Thinking about Bannon for a moment, the January 6 commission finally decided, with the approval of a majority in Congress — only nine House Republicans — to refer Bannon to the DOJ to be charged with criminal contempt after he refused to testify. I think he was citing Trump’s executive privilege for why he doesn’t need to testify. Now I feel like the DOJ is moving pretty slowly on whether to put that in on the trial for his refusal to testify. My understanding is that he faces somewhere between a month and a year for this possible contempt. When could he theoretically go on trial, right now he seems to only have been motivated more to galvanize his followers, railing on his podcast last week about how Merrick Garland and the FBI supposedly helped Joe Biden come to power illegitimately, totally divorced from reality.

Elie Honig 25:25

Merrick Garland wasn’t even AG until after Joe Biden came to power, but okay, yeah.

Sam Goldman 25:29

It’s not about the truth. He’s demonstrated that they’ll take action regardless of whether an iota of it is based in reality. What is going on?

Elie Honig 25:40

Bannon is a good example of why this is frustrating, because, think about it: The January 6 committee has now issued five or six key subpoenas to people who are obviously going to be loyal to Trump: Meadows, Scavino, etc. They’ve only gone to the mattresses, as we say, on one of them, Steve Bannon. They have not yet voted on contempt or anything on any of the other guys, none of whom apparently have fully cooperated. But they single out Bannon because he probably has the weakest legal argument because he was not a member of the executive branch at the time, and he sort of most flagrantly defied them. But even now, the tools available to make him talk are unsatisfactory because Congress can go to court and ask a judge to issue an order forcing him to testify. He can defy that. That’s going to take an eternity, it’s going to take way too long.

They’ve gone the criminal route, which is good. It’s their best option. A) We don’t know if Merrick Garland will charge, but let’s assume he does. Like he said, the punishment here the maximum is one year the minimum is one month, but he will become a martyr. Nobody will enjoy being prosecuted as much as Steve Bannon will relish it, will savor it, will fundraise off it, will turn himself into a martyr. There will be plenty of people willing to do that. He’s going to fight this charge. He’s going to go to trial on this charge. You’re going to have to convince a jury beyond a reasonable doubt. Maybe he’ll get convicted, maybe he’ll get acquitted. Honestly, I don’t even know that Bannon cares if he goes to jail for six months or four months. We’ll turn him into even more of a martyr and a hero.

Congress has been fighting to investigate and exercise oversight since George Washington, but never until now have we seen a president and former administration so willing to just say No, just straight No across the board. You get nothing and make me and every other administration, both parties have it. Some have been more forthcoming than others, but they’ve always managed to come to the table in some way that has been agreed upon. These guys are saying: What if we just refuse to play. Make me. I think what we’re learning is Congress and the courts and even to an extent DOJ don’t really have the tools to make them. And, by the way, even if Steve Bannon gets convicted, he doesn’t testify. It is punishment, but it doesn’t put him on the stand. The hope is that a normal person will go: Gee, I don’t want to go to jail. Now I’ll testify. He’s not gonna do that. And, by the way, if Steve Bannon does testify, you think he’s gonna be honest? I mean, come on. I still think they have to pursue him, but this brings me back to why Merrick Garland has failed to bring the real criminal charges, the heavy lumber, that I think applies on January 6, is so pointed, because these guys know that you’re just playing pattycakes when it comes to Congress and contempt and misdemeanors and things like that, but when you start talking about seditious conspiracy, which I think applies here, and meaningful obstruction of Congress, that’s a little bit of a different ballgame. But if Merrick Garland is sitting there twiddling his thumbs in the sideline, no one’s going to be deterred from anything.

Sam Goldman 28:09

I was thinking about a recent piece I read on CNN. I believe that you have either written it by yourself or it might have been one of those joint pieces. It was about Trump’s effort to act now to stop the release of the archives. That that could turn into a larger strategy to run down the clock.

Elie Honig 28:29

That’s always been his strategy. My Dad joke on this is he wrote the book, The Art of the Deal, but he really should have titled it the Art of Delay. He has in fact mastered the art of delay, though. Remember two years ago, when the Muller report came out, and Jerry Nadler would say we will have accountability and all this. Jerry Nadler got nothing. Donald Trump just said, No, make me. You know how many witnesses Jerry Nadler ever got to testify publicly? One, and it was Corey Lewandowski and it was an utter circus and a joke, because these guys have learned that it takes too long. They were in court over Don McGann for two years, and he testified this past summer and no one cared anymore. That’s the strategy here.

Now, I will say, I think that the courts have some responsibility here, too. People act like the courts are the sort of Holy Oracle and we can’t question them. No. Courts are just judges and judges are just humans. They need to do this quicker. The judge that has the Archives case, right now, Judge Chutkin, in DC has done a great job. She said argument — boom. She gave them a couple weeks argument. There’s a deadline November 12. She’s going to rule like this. Then it’s going to the court of appeals. Hopefully, they will recognize — it shouldn’t be that hard, judges, Your Honors, to recognize that when you have a case involving the legislative branch against the executive branch, the former president against the current president, move that to the top of your pile. Move it ahead of the case involving the postal truck that got in a fender bender. You can do it, judges. You’re allowed to run your own — you have life tenure, do it. The Court of Appeals needs to get this thing done. I’m a lawyer, anytime a judge gives you a deadline, even if it sounds crazy, but the judge says, I want your brief in two weeks, I can’t do that, you’ll do it, you’ll do it. I’ve complied with some crazy deadlines from judges. So when the Court of Appeals gets this case, they ought to give each side two weeks, brief in two weeks. This side, two more weeks, that side, two weeks after that, and I want you in here for argument. Two weeks later, I’m going to give a ruling. They can do that. This isn’t rocket science. So courts need to do better, because, again, that’s sort of a loophole. Someday the tables may be turned and Democrats may see this and think, Oh, we can just drag our feet, too. Courts have a job to do here, as does Congress and DOJ, to avoid the sort of run-out-the-clock strategy.

Sam Goldman 29:06

I was wondering about the timing vis a vis, the 2022 and 2024 elections and how that may help them run out the clock and get themselves back in the majority of Congress and the White House, especially when these laws that are suppressing voter turnout and that have been rolled out across the states. It’s gotten so bad that someone — notorious neoconservative Bill Kristol — is demanding an end to the filibuster and voting rights legislation. I was wondering if you had any thoughts on that?

Elie Honig 31:00

I think the goal here is to drag the January 6th commission out past January 3 of 2023, because that’s when a new Congress takes over. If you look historically, it’s very likely that Republicans will control the House. Democrats have a 10 seat majority right now. So if five seats swing over, Republicans will take control. If you look, I actually happened to research this the other day, but presidents in their first midterm — so two years into their term — the party of the sitting president has gotten annihilated. Trump got crushed in 2018. Obama, same thing in 2010. Clinton and Obama both lost 50+ seats in their first time. Even Reagan lost seats. The only exception was George W. Bush, but that’s because ’02 was fairly close on the heels of 9/11, and we were all still in that post 9/11 mode.

So odds are high that the House will flip. If the House flips, the first thing Kevin McCarthy does is pull the plug on that committee, assuming he becomes Speaker. Whoever becomes speaker says, All right, January 6 committee, you’re done. I think as a practical matter, they have a year and two or three months left to go. In terms of the filibuster, it’s a question of political will, and the Democrats, I think the reluctance is going to go both ways. Both parties are going to control the Senate over the next 50 years, right? It’s going to go back and forth, back and forth. So, I think everyone recognizes that to change the filibuster is to change the filibuster. I will say that Joe Biden’s rhetoric does not match up with his actions here. Joe Biden has said very, very dramatic things. He has said, this is Jim Crow 2.0. He has said it’s the biggest threat to our democracy since the Civil War. Yet he’s not in favor of changing the filibuster. He took that back a little recently. He said he is in favor, but I think he knows not gonna happen because you have Joe Manchin and a few others. But that’s nonsense rhetoric from Joe Biden, given his action, because if he truly believed that it was the biggest threat to democracy since the Civil War, he would damn well be willing to get rid of the filibuster. If I told you, Sam, this building that you and I are in right now is on fire; it is literally on fire. The only way out is to kick out that window right there, but I’m not willing to kick out that window. You would say, well, either you’re lying or you’re crazy. So, I think Joe Biden’s pretty good at the rhetoric but his actions have not matched the rhetoric. I’m not arguing for against the filibuster. That’s a political question that’s not really my purview. But I will say that the rhetoric from Biden has been hotter than the action.

Sam Goldman 33:14

I think that the question that we can and should all be asking — not that it’s a tactic but a given political choice, like filibuster, no filibuster — is what is the danger? How serious is this? And then from there, what’s necessary flows from that recognition. I strongly agree that one’s understanding, and if they’re truly confronting what the danger is, then his actions definitely are not commensurate. I wanted to reference a piece that you had written recently about Adolf Eichmann and his living legacy. You had mentioned the white supremacist massacre perpetrated by Dylann Roof at the Black church in Charleston, and the events in Charlottesville in August of 2017, the anti-semitic and anti-immigrant massacre at the Tree of Life synagogue and the attempted coup on January 6 of this year, and I was wondering, do you see these as isolated moments that hark back to a very scary time in history of 20th century fascism? Or do you see this as a current and cohesive building of that.

Elie Honig 34:21

I had this privilege to speak with two men who were both really living history. One of the prosecutors from the trial of the Nazi war criminal Adolf Eichmann, which happened 60 years ago, 1961. The prosecutor, Gabrielle Bach, is now 94 and the investigator, Michael Bolden, who’s 96. He survived Auschwitz as a teenager; he still has the prisoner stamp on his forearm. It was remarkable, and I talked about in the piece how two of my grandparents were Holocaust survivors. So I really felt this deep connection and gratitude to these two men. It’s a video piece and an article that I wrote on CNN, which you can find by Googling. Nothing is the same as the Holocaust. I think people are a little too casual with calling people Nazis or comparing things to the Holocaust. Most egregiously, beyond the realm of casual, people who recently compared COVID vaccine mandates to the Holocaust, which is beyond ridiculous, indescribably. Both of these men told me that they’re worried that the lessons of the Holocaust and the Eichmann trial are still so relevant today — that’s not to say that we are on the brink of 6 million people being systematically murdered, but to say — that hatred very much lives on in our society and manifests itself in horrifying ways. Those examples you just gave Charleston and Pittsburgh and Atlanta with the spa shootings and Charlottesville. As we say in the piece, it’s so important to remember what we learn there and to not backslide. It is a little bit alarming or disheartening to speak with these men who saw the worst of evil. Adolf Eichmann is one of history’s all time mass murderers, and for them to say we’re still concerned about what we saw back then. So that really resonated to me and speaking with them.

Sam Goldman 35:58

I really appreciated reading that piece and thinking about it. I had spoken to, shortly after January 6, the week that it happened, a survivor for an episode of the show. He goes to high schools and middle schools and tells his story. He wrote a book about his experience and how he had to take over a caretaking role for his younger sister after they lost their mother. Their mother was stolen from them. He said he used to say that he thought that it could never happen in our country, and that the years with Trump, and mostly you see what happened on January 6 had changed his thinking. It was very, very interesting. I hope that listeners go back and check out that episode. It was January, [and the survivor was] George Levi Miller.

Elie Honig 36:44

That’s interesting because I talked about in the piece how there are people like that guest who are wonderful speakers and speak and write eloquently about the horrors that they lived through, too. My grandparents were survivors. One of them died, my grandfather I’m named after. He died in 1960, so I never met him, of course, but my grandmother lived until 2008, so I knew her well, but she didn’t talk about this. I write about this in the articles. I realize more now looking back at it deeply, deeply traumatized. We understood that she had gone through this thing, but her attitude was always: Oh, no, not reliving that. So she did towards the very, very end of her life reluctantly agreed to do one of these Shoah interviews that Steven Spielberg’s Foundation did. I’m grateful that there are people who are able and willing to talk about it.

Sam Goldman 37:21

I want to thank you, Elie, for chatting with us, for sharing your perspective, your expertise and your time with us. I want folks to go and check out his book. It is in the shownotes. A link to where you can get his book is in the show notes along with how to follow him on Twitter and all that jazz. Elie, do you have anything else that you want to make sure that listeners know or get?

Elie Honig 37:47

No. Thank you, Sam. I’m happy to do this. Like I said, you are a kindergarten teacher in Philly, you are doing God’s work in the greatest city on the planet. So I thank you for what you do. Maybe you’ll get my nephew someday. He’s two right now and he lives a couple blocks away from you. So you get a little boy whose last name is Honig about four years from now. Give him extra lollipops and things.

Sam Goldman
For other recent episodes that explore this topic I hope you’ll check out Episode 77 Fascist Mobs from 1850 to Today from earlier this fall featuring an interview with Ankush Khardori, and Episode 71 the Death March of White Supremacy from this summer where I chatted with Wajahat Ali.

There are a couple new items up on RefuseFascism.org, including a conversation that originally aired on the RNL Show between Andy Zee, host of the RNL Show, and historian, author and Refuse Fascism Editorial Board Member Paul Street in a segment titled “Two Separate Nations: Developments in the State of Fascism and How That Is Shaping the Political Situation.” Check it out over at Refusefascism.org and let us know your thoughts. We’d love to get submissions from listeners. Have something you want considered for publication on RefuseFascism.org? Email us at [email protected].

Before we go I want to encourage folks to go back and listen to last week’s episode (83) featuring an interview with Yale epidemiologist and ACT UP alum Gregg Gonsalves on COVID, Public Health & U.S. Mythology. This conversation has become even more relevant as the U.S. Court of Appeals for the Fifth Circuit has temporarily blocked the vaccine mandate for big businesses. Thank you for listening to Refuse Fascism. I wanna hear from you, share your thoughts, questions, ideas for topics or guests, or lend a skill. Tweet me @SamBGoldman. Or you can drop me a line at [email protected] or leave a voicemail by calling 917 426 7582. You can also record a voice message by going to anchor.FM/Refuse-Fascism and clicking the button there. You might even hear yourself on a future episode.