This week’s hearing of the House Select Committee on the January 6, 2021, attack revealed embarrassing new details about President Donald Trump and his supporters, including footage of Sen. Josh Hawley, R-Mo., fleeing the U.S. Capitol moments after encouraging the rioters. The hearings have undoubtedly been good TV, but what have they added to our substantive understanding of the legal questions surrounding Trump’s conduct? Washington Editor Nausicaa Renner talks with Intercept reporters Ken Klippenstein and Rob Mackey about the hearings.

[Deconstructed theme music.]

Nausicaa Renner: Welcome to Deconstructed.

I’m Nausicaa Renner, Washington editor for The Intercept, filling in for Ryan Grim.

The January 6 hearings are coming to a pause for the August recess. So far they’ve been described as explosive blockbuster hearings that bring into focus an attempt at a coup by Donald Trump.

Thursday’s hearing was full of revelations about what Trump himself was doing that day as a mob infiltrated the Capitol. The committee obtained footage of President Trump filming his infamous statement to the protesters the following day. The video shows him editing out of the script on the fly the statement that: “the election is over.”

President Donald J. Trump: OK, I’ll do this. I’m gonna do this. Let’s go.

“But this election is now over. Congress has certified the results.” I don’t want to say the election is over. I just want to say Congress has certified the results, without saying the election is over, OK?

NR: The hearings have added countless details and testimonies under oath, and they’ve captured the attention of the nation. But I wanted to use today’s episode to ask a few questions: What are they really adding to what we already know? And what might we never know about what happened on January 6?

Let’s go back in time for a moment to January 7, 2021.

After the Capitol was breached, Rep. Cori Bush tweeted: “As a member of

@HouseJudiciary, I am calling for the immediate impeachment of Donald Trump & his removal from office. I’m also calling for the expulsion of @GOP members of Congress complicit in inciting the attack on our nation’s Capitol.

Their actions must have consequences.”

On January 7, she introduced a petition to have members of Congress expelled who attempted to overturn the election results. Just five days after the attack, she introduced a bill asking the ethics committee to investigate whether those elected officials had violated their oath of office. The big picture has been clear since the very beginning. How much of the hearings changed what we knew back then? And what are the barriers to uncovering what President Trump did that day?

To answer those questions, I’ll be joined on the show today by Robert Mackey, senior writer for The Intercept, and by Ken Klippenstein, investigative reporter for The Intercept.

[Musical sting.]

NR: Rob, I wanted to start by asking you what moments jumped out at you in yesterday’s hearing?

Robert Mackey: So obviously, I think the standout moments in terms of the impact on the internet at least, which is the way a lot of people were following this, was first of all the attack on Josh Hawley, which seemed to some extent to be gratuitous. I mean, I think, obviously, members of the public who are outraged by January 6, to call these encouragement of the pro Trump mob, it’d be a very important, significant and upsetting thing.

What we learned from the hearing was that at least one member of the Capitol Police who was helping to protect him and give him what they called “the safe space” from which to encourage them up was also outraged and upset by it.

Rep. Elaine Luria: She told us that Sen. Hawley’s gesture riled up the crowd. And it bothered her greatly, because he was doing it in a safe space, protected by the officers and the barriers.

RB: So the footage of Hawley then running away from the mob, through the halls of the Capitol, down the stairs, and even maybe upsetting his supporters — he was wearing a mask as he did it — was obviously calculated to embarrass Hawley and maybe upset his supporters.

It was kind of an odd moment, because it seems so calculated by the committee, and by the television producers they worked with to produce this hearing and the other hearings, to the extent that one of the producers was even in the hearing room, and filmed the reaction of the crowd on his phone, posted it on social media, where it’s racked up four-to-five million views already.

So it’s kind of a strange moment. If you think of it as a television entertainment, as an episode of Colbert or something, that would make perfect sense. It’s a little odd and sort of discordant with the idea that this is to produce a record for history of what happened on that day.

Hawley’s role in pushing forward the idea that the election could be overturned and should be overturned, is clearly important. But it was a bit of a strange political moment to take a timeout to go after him.

And I think similarly, obviously, any footage of what Trump was actually doing that day is very valuable. It seems unfortunate that they didn’t get, reportedly, there were two outtakes — at least two outtakes, I think — of his statement directly to the protesters on January 6, which his aides and staff thought were too inflammatory to release. His statement that they actually did release was also inflammatory because he praised them and said he loved them, and that’s what happens when an election is stolen. So it’s a shame they didn’t get those.

But they did get his statement, as you mentioned, the next day, on January 7, to the nation. They got outtakes, where they showed that he didn’t want to say the election was over. And clearly he doesn’t even think now the election is over. Because we know that just last week he was on the phone to the Speaker of the Wisconsin House trying to get him to decertify Wisconsin’s results from two years ago.

Matt Smith: And what was that conversation like?

Speaker Robin Vos: It was one of those that it’s very consistent. He makes his case, which I respect. He would like us to do something different in Wisconsin. I explained that it’s not allowed under the Constitution. He has a different opinion. And then put the tweet out. So that’s it. Yeah.

RM: But again, there was an aspect of that, I’m all for exposing how utterly incompetent and preposterous a President Donald Trump was. But there was something a bit strange in just including outtakes where he fumbled words — we all fumble words. I’ve done it earlier in this recording, which, luckily, will be edited out. It seemed a little bit gratuitous to me.

But you did hear, the only thing of interest to me, was that you heard that the person behind the teleprompter as Trump was editing his speech on January 7 on the fly during the recording and asking for advice, seemed to be Ivanka Trump, and that perhaps gives a role of how actually central her part in the White House was. It was always kind of a mystery what she was actually doing there. But I suppose she was doing things like that.

And one of the moments that was interesting from that outtake was where Trump said — he was referring to the heinous attack on the Capitol on January 6 — he stumbled over the word yesterday a couple of times and cut that out, saying that yesterday was a hard word for him to say.

DJT: I would like to begin by addressing the heinous attack yesterday — yesterday is a hard word for me!

Producers: Just take that, the heinous attack.

DJT: Ah, good. Take the word yesterday, because it doesn’t work with — heinous attack.

DM: But more interestingly, I think he then, on the fly, thought to change the text to the attack on our country.

DJT: On our country, say on our country. Wanna say that?

Producers: No.

DM: And he said to the people recording the video: I’ll say the attack on our country. And they all said: No. Don’t say that.

So he didn’t.

NR: You mean rather than: the attack on the Capitol?

DM: Exactly. Yeah. I mean, he’s calling it “the heinous attack” there. He was, at that moment, trying to dissociate himself from the violence, saying that anyone who broke the law would be prosecuted, that you don’t represent our movement. But it’s interesting that it even occurred to him to describe it as an attack on our country. And all of his aides, including Ivanka Trump, told him not to say that.

NR: Ken, I saw you nodding along to Rob talking about the footage of Hawley being a bit gratuitous?

Ken Klippenstein: Yeah, I’m not going to pretend like I didn’t find the outtakes of Trump funny and the Hawley-running-away thing amusing. But like Rob said, that does sort of take away from this idea that we are undertaking this solemn task of informing the public in the historical record about what exactly happened.

That being said, I’m glad we’re having the hearings. We’d certainly be worse off without them. But I think the concern that I have, and that certainly my sources in the national security community have, is that not all of it is going to come out. Because as we get closer to the events that unfolded, this becomes a very sensitive national security matter in the sense that protection of the President and of the chain of command at the very top touches on a lot of sensitive and highly classified information that I’m concerned Congress is not going to have the guts to disclose in any sort of way that the public can understand.

I mean, we’re a long way away from where we were when, I believe it was Sen. Gravel, who was reading top-secret information from the Pentagon Papers in the Senate. We have a very different Congress now that I don’t think he’s going to do something like that. If you look at the composition of the January 6 committee, the staff director is himself a former CIA, and there’s a certain culture — and this is reflected in the conversations I’ve had with people from the national security community — there’s a culture wherein there are certain things you just don’t talk about. And unless Congress is going to be willing to, at least for the time being, rupture or transgress or at least question a little bit that norm and disclose some of these things — you know, there are, for example, protocols for protecting the president that President Trump might have been able to abuse. There’s questions of just classified information that the Secret Service is privy to, that the Capitol Police are privy to. If they’re not willing to disclose some of that it’s really going to, I think, limit the public’s understanding of what it was that happened.

NR: Yeah, and we should say that the committee did say that the dam is — I think, Liz Cheney’s word was the dam is now “opening,” and there will be more hearings in September. But that was my impression, too, was that their entire argument at the moment seems to be focused on dereliction of duty, like what Trump didn’t do.

KK: Right.

NR: And to me like that seems like a much harder thing to sell to the American people than Trump actively did something.

And there are such big holes in what we know, even in the very detailed timeline that they laid out last night. I mean, they mentioned that Trump was calling multiple senators; we have no idea who the senators are. We have no idea who else he was calling. And yeah, without being too speculative, some of that information may never come out.

So I guess in light of that, I wanted to know what you guys think the difference is that the congressional hearings are really making. To pose the question that I asked at the top of the show: What do we know now that we didn’t know then, in a broad sense? And what are the American people getting from it?

DM: Can I just jump in for a second to say that I think Ken’s reporting is so important. And what’s kind of fascinating about this is that the hearings have really brought into focus how important this moment where Pence refused to get in the car that the Secret Service asked him to get in in the basement of the Capitol, because he didn’t trust them to not spirit him away.

And there were conversations between his aides and the Secret Service about this. And they’ve been reported in testimony, but the fact that we don’t have the records of their exchanges during that time, I mean, it’s really just astounding. In any other case, if this was a question of police accountability in some other sort of setting, I mean, the loss of those records is just incredible — if they are indeed lost. I mean, we’re being told that they don’t exist, but I’m not sure we even know that for sure.

There absolutely must have been communication among the Secret Service that day, and the White House, and this sort of person who is in this unclear dual role, Tony Ornato, between the agency and the White House. It’s kind of an incredible scandal that that’s lost. And also, of course, the fact that Pence isn’t himself testifying and just telling us what happened, that’s quite a loss.

But it is kind of astounding that Congress with all its powers can’t — has failed — to be able to get those records. They’re still being concealed. Because if there was a plot — it’s speculative because they’re hiding something from us — but if there was plotting or discussion about taking him out of there, so that he couldn’t continue to go ahead with the electoral count, I mean, that’s extremely important information. And it’s like it’s just being given up on.

NR: Ken, what do you know now about the status of those text messages by the Secret Service? What’s come out since your story?

KK: Well, the timeline was kind of interesting. When I first reported it, the Secret Service spokesperson denied it in really unusually strong language, saying: We categorically deny all of this, and it’s a complete mischaracterization, and so on and so forth.

And then about a day or two later, they ended up walking a lot of that back. It was found to be true that they deleted a lot of these messages. And then they said: OK, well, Congress, we’re going to get you the messages that you’ve requested, just give us a day or two.

And then time rolls around. They end up producing one text message from both January 5 and 6 concerning two dozen Secret Service agents that were involved in the January 6 events.

And first of all, I just want to say that’s like the funniest number you could have, because I feel like zero would almost make more sense, because then it’s like you lost everything. [Laughs.] But no, they had one message.

And so now the discussion, as I understand it, from folks in the national security community, what the Secret Service is saying is that they had a device update program. But there’s so much information that is of intelligence importance, perhaps for criminal investigations, things like that, in Secret Service phones generally, that the idea that they would just potentially throw out evidence doesn’t make a whole lot of sense, or the idea that they could. One would think that you can have forensics go into the discarded phones and pull these messages out. And so this is essentially what the Congress is trying to find out.

And one more thing I’ll say is that these messages were deleted after the DHS inspector general, that’s the parent agency of the Secret Service requested them. And what’s more, the Secret Service initially disputed that timeline, but it turns out multiple committees in Congress had also requested it prior to their deletion. So there were, from both the executive and the legislative branch, requests for these records prior to their deletion.

NR: And what’s your understanding? I mean, the Secret Service is such a weird group. Can you just talk a little bit about who they report to and what their role is?

KK: Yeah, so Tony Ornato, who Rob mentioned before, was detailed to the White House. And in conversations with the Secret Service agents that I know, that was extraordinarily unusual, apparently no precedent for that, to detail a Secret Service agent — that doesn’t just mean to protect someone in the White House, it means to work for the White House. It’s essentially like you’re a political appointee.

And a lot of people in the Secret Service who, many of them are conservative, they found that — my understanding is — distasteful and kind of beneath what the office is supposed to be. Because while that might be partially conservative, a lot of them do define themselves as — they want to feel as though they’re carrying out their work with integrity, and that it’s above the fray of partisan politics. And so when that happened, a lot of people thought that that was sort of gross, and weird.

And it’s still unclear, first of all, why Trump did that, and it’s unclear what Ornato’s role was in this because he was apparently in the White House, having a conversation with, I think it was Deputy National Security Adviser Gen. Keith Kellogg, discussing the vice presidential limo coming up to Pence and trying to whisk him away. And if you just think through that, logically, you remove Pence from the Capitol, put him in a secure facility, he’s not going to be able to certify the results of the election. And so that was something that Gen. Kellogg was urging Ornato not to do. Now, Ornato disputes parts of that. But again, there’s just a lot that we don’t know about this, because the committee hasn’t looked at it.

And going back to the concerns that I have with this investigation, I think that there’s a general attitude that because the January 6 committee is staffed and led primarily by Democrats, that they’re going to go real hard. But it’s a little more complicated than that. I think they’re going to go hard in the sense that Rob was talking about before and take advantage of these sort of funny, partisan-friendly bloopers, like the Trump outtakes and Hawley running away. That doesn’t mean that they’re going to want to disclose classified information that they’re going to want to embarrass the Secret Service as an institution where by the way, Tony Ornato still serves now as assistant director, he hasn’t been removed, he’s still at the very top of leadership. I think he runs the training division.

And so I think that an aspect to this that’s not always appreciated is that when you have a new administration in office, they generally want to uphold the legitimacy of the agencies which they are tasked with running now. They don’t want to deal with a crisis of confidence in these kinds of things that now belong to them and are in their care. And so my fear is that that is going to keep them from being as aggressive as they need to be to find out answers to the questions that I’m talking about now and that Rob brought up.

RM: It’s almost like there’s a deeper version of the state that exists between administrations that we can’t trust.

KK: [Laughs.]

NR: Yeah, also this brings up for me also the question of timing, because it feels to me like it’s taken a really long time to turn the lens on the executive branch, like, for a long time we were focused on: OK, who are the rioters? Charging them with federal crimes, and the Proud Boys and getting all of that out of our system? And it just seems to me like it’s taken a really long time to look at: OK, who was in the White House that day? Who was talking to Trump?

KK: Exactly. And if you look at J6, that subpoena to the Secret Service, that’s the first subpoena the J6 committee has served to an executive branch agency, which is at the center of this entire scandal. It’s clear as day what the crowd was up to. But again, the operative question is: To what extent was the executive branch using that or aware in advance of the unrest?

These sorts of questions have been very scarcely examined. And I just want to say: It’s kind of shocking to me, there’s an entire army of beat reporters for J6 that I think should have picked up on what I reported, the Secret Service angle, months ago, because this has been a problem that has existed for a certain period of time, I know for a fact that Congress didn’t disclose it as soon as as soon as they were aware of it. And so the question is: Well, why didn’t anyone follow this?

Again, I think there’s just a timidity to go after the executive branch, because the guy in charge of it now has a D next to his name.

NR: And also, the DOJ is even farther behind.

Jim Risen, for The Intercept, wrote a column — I mean, we don’t know anything about DOJ active investigations, but it’s really reading the tea leaves into it seems like they’re just now starting to get warrants to search people’s phones. And now they’ve sort of indicated that they wouldn’t be done with an investigation for quite a long time.

Rob, did you have anything to add on the timing of it? Especially if you think that there’s like a political angle in running these before the midterms? That’s something that I’ve heard as a big critique of the hearings.

RM: Running them this close to the midterms?

NR: Yeah, like I think that there’s a slight theory on the left that they’ve delayed doing some of the more explosive stuff until now, because it reflects well on Democrats. I don’t know how accurate that is.

RM: Yeah. I mean, Congress seems to be so slow in doing everything and it’s hard to say — and the DOJ.

I do think that it’s valuable. I think that there is stuff on the historical record now that wasn’t before.

Another interesting aspect that’s a bit odd for people that have actually paid attention to the huge amounts of footage and what was already in public. I know plenty of people who told me that they were kind of astounded to be reminded of the violence of that day and what was happening that day. And it’s sort of like a greatest hits, if you’ve been a reporter covering this, and look through all this stuff, it’s kind of funny to see sort of the greatest hits of that footage now be in a kind of primetime setting. I guess it’s good for educating people who haven’t fully paid attention. I mean, I find it hard to believe that people who already made their minds up that it was an Antifa plot and that Trump is totally innocent will be swayed by this. But I guess in a way, in general, for reminding people of how atrocious that day was, I guess it’s good. It’s kind of amazing that it’s so quickly forgotten.

[Musical interlude.]

NR: One of the more impressive moments for me was when they were playing the tape of the rioters who were doing, like very close readings of the Trump tweets. I mean, they were really reading everything into those tweets that I think everyone was concerned that there were.

Like, he’s saying, like: Don’t go after the Capitol police officers.

Well, that means he’s not saying don’t go after Congress people, which means he is saying go after Congress people.

That was just very explicit in a way that I was surprised to hear.

RM: It is amazing. There were other pieces of footage where people were reading out his texts directly to the crowd in the middle of the Capitol mob. And when he said: We should go home, people started going home.

That’s an incredible moment. Earlier on, they read the Mike-Pence-betrayed-us thing out and people continue to riot. And then there is somebody standing outside the Capitol with a megaphone saying: He says we should leave.

And they’re like: OK, we should leave.

Rioter: I’m here delivering the president’s message. Donald Trump has asked that everybody go home.

Rioter: He says go home!

Rioter: Yeah, he said to go home.

RM: That’s kind of incredible, really. He did have a lot of power over the crowd.

NR: Rob, I wanted to ask you a little bit about how the hearings have been covered in the right-wing media, like on Fox News.

It’s funny to me, it’s sort of an awkward situation, where Sean Hannity and Laura Ingram have been revealed to have been texting White House officials that day trying to get Trump to respond. And now for instance, last night, Sean Hannity called the hearing “a cheap, selectively edited political ad.”

You’ve been watching the right-wing media more closely than anyone. What do you make of it?

RM: Well, yeah, I mean, it’s an awkward moment for Fox, if you think of it as a journalistic endeavor. But I mean, it’s kind of a Potemkin news channel. It’s not really trying to get the truth, even if that might embarrass the political side that it’s on. I mean, it’s obviously effectively opposition research political advertising in the guise of a news organization. And so when you have a situation where it’s revealed that Laura Ingraham and Sean Hannity were texting the White House, or texting Mark Meadows, in the middle of all this stuff, that would be terribly embarrassing if those were coming from a news organization. But for them, it’s not really any different than what Kevin McCarthy said, if Kevin McCarthy was also texting and calling frantically, and now he doesn’t want to mention that. But they’re all in the Republican Party, basically. They’re all in this sort of pro-Trump media operation. So that’s not that surprising.

I mean, I think what’s also interesting is the way that that more mainstream part of the conservative media echo chamber has also, during this time, since January 6, started to absorb a lot of the more far-right conspiracy theory, fringe ideas.

Like, for instance, Tucker Carlson recently referred, as if it was a matter of fact, to this kind of crazy idea that Ashli Babbitt, in the middle of the riot, was trying to stop the rioters and help the police like 15 seconds before she was shot. And I’ve actually gone back through the publicly available footage, and that’s clearly not true. Her hand grazed one of the other rioters’ faces as she was pushing past to get to the window, to jump through it; it was the last barricade to the House floor. But then that’s been re-edited. It was originally Infowars footage, which even Infowars didn’t make anything out of. Another right wing activist/journalist, re-edited it and said: Look, this proves that Ashli Babbitt punched this rioter because she was so upset by what he was doing.

She was clearly part of the mob, screaming invectives at the police, wanting to get by there, and jump through, and was shot. But what I do think that the committee has kind of missed, so far at least, missed an opportunity in terms of putting everything into historical record, by essentially barely referring to the killing of Ashli Babbitt, which for people on the right is like the central thing that happened that day and part of their animating feeling that they’re being hard done by and this is a cover-up, I feel like it would be much more useful if they recognized, and explained, and contextualized what happened with her killing.

And actually, in yesterday’s hearing, there was a kind of strange bit of editing where they showed footage from the House chamber recorded by, I think it was Rep. Kildee from the balcony. And I know from having gone back through that footage and from having communicated with the congressman’s staff, that that footage, just a few seconds later, you could hear the gunshot nearby that killed Ashli Babbitt. And it was put in kind of a jumble. And it was cut together as if it was just sort of this general mayhem, but they actually had and they still have an opportunity to explain and present what exactly happened with the killing of Ashli Babbitt.

And there’s very likely security camera footage surrounding that that would make it more clear that we haven’t haven’t seen yet. One reason is that there are active trials involving other people who were storming that same door. But I do think that that would be actually — it’s not going to really convince many of these people who don’t really want to be convinced — but I think it’d be useful for the historical record for the rest of us to have a more clear accounting of exactly what happened there.

NR: Could you explain a bit more like what’s at stake for them in the killing of Ashli Babbitt? What does it imply if she was — I mean, it sounds like she absolutely wasn’t on the side of the police — but what would it mean if she was? Why do they care about that?

RM: Well, there’s a constant grievance that they’re the victims in all this. And so there’s a sense in which they’ve kind of seen Ashli Babbitt as a martyr, and that she was set up somehow; there’s one idea that she was set up. I don’t even know where that ends up, what the idea is, that she was put in a position to be killed. There’s all kinds of weird, very difficult to parse, conspiracy theories.

But there’s a simpler one, which is the idea that this is a wrongful death. It’s essentially a police shooting of an unarmed woman. And they’re obsessed with the idea that she was unarmed. I mean, she was wearing a backpack at the front of a mob breaking into — to leap across the last barricade to — the House chamber where there were members of Congress still sheltering. I think if you change the situation so that a member of a left-wing mob was storming the White House and someone was jumping through a window that led to a passageway to the Oval Office and was shot, I think those same people would think that was totally fine. Obviously everything is through this political lens.

It’s part of that broader sense. And it’s actually part of Trump’s statement on January 6, where he says you see how other people are treated, who are evil people. And what he’s talking about were left-wing protesters, who at certain times during Black Lives Matter protests the previous year, had fought with the police. And he’s saying somehow, in this fever dream of the right, that what was happening is that they’re favored and let off, and it’s all fine for them, but poor us, we’re assaulted and killed. And so it plays directly into that. He was saying that on the day of the attack, just after she was killed.

So yeah, I personally think, having looked at all that footage, there’s a better, more coherent record of what happened in the moments leading up to her death — and I suppose just after she was shot — that would be very helpful to have actually clearly explained. But it’s kind of weird, it does seem like in a partisan way, maybe the committee just doesn’t want to refer to that because they feel like it somehow hurts their cause that the real victims are American democracy and down. Anyway, I think that they’re missing something by not doing everything they can to clearly explain that moment. There’s definitely parts of that that have not been well explained.

NR: Well, one thing that has been a lingering question in my mind, which sort of relates to what you’re saying, is that the hearings are, in some way, hyper-focused on this defense of Congress and preserving American democracy. There was a moment in Thursday’s hearing, where the deputy national security adviser who testified, Pottinger, he was basically just asked to introduce himself and his role in the White House, and what he was doing on the day of January 6, and he used the opportunity to say: Look, I resigned my position on January 6, but I’m really proud of all the work that I did for Trump.

Matthew Pottinger: I felt then, as I do now, that it was a privilege to serve in the White House. I’m also very proud of President Trump’s foreign policy accomplishments. We were able to finally compete with China. We were also —

NR: And he sort of went on with it for a little while. And it was this striking moment because he was at once saying: Yes, I did resign on January 6 for a reason, but I’m still totally loyal to Trump.

And he didn’t really want to elaborate at all on why he felt he had to resign, which brought into light for me how much it feels like now this is a train that all of these Trump officials are jumping on in order to kind of exonerate their own reputations and images. And yeah, I guess I wonder if you two had the same impression?

RM: I would say absolutely. And I think an interesting person to look at in this context is Pat Cipollone, who had to be dragged into testify or given an interview, very much refused to describe any conversation you have with Trump, as though that’s protected by attorney-client privilege, which there are good arguments is not because he was never Trump’s lawyer, he was the White House lawyer, the people’s lawyer in that sense. And also, if Trump was doing something that was criminal, it’s not covered by that, but he just wouldn’t do that.

And Cipollone, when you look at him, his background, he has 10 children. He’s a far-right conservative, pro-life Catholic. He’s associated with Opus Dei, this kind of right-wing sect. Like Barr, he’s just a conservative Catholic, he wanted the administration to do certain things, he was there to get three conservative radicals onto the Supreme Court. He achieved that. Abortion — Roe — has been overturned. These people got what they wanted. And they think that that’s a perfectly fine way to operate. They can just put any completely incompetent, dangerous person in charge, and they feel like they can steer the ship.

It’s interesting that in the previous hearing, Cipollone was pressed on whether Sidney Powell had actually been appointed special counsel by Trump during this kind of previous December, crazy meeting in the Oval Office. And he basically said that he told the president that he did have the power to appoint Sidney Powell to be special prosecutor, and then just didn’t do the work of giving Trump the documents that he had to fill out to make it official. And so then he considered that she wasn’t the special prosecutor afterwards. And they just could ignore her.

So it’s obviously true that they were fully aware of how the levers of power worked. And when they didn’t want to let Trump do something, they just didn’t let him do it. And so I do think it’s all reputation laundering at this stage. But they got what they wanted. And they’ll probably want to be back in power and get some more people on the Supreme Court and get some more right-wing fever dreams enacted.

NR: I guess we should end on this.

One open question is whether this congressional investigation will eventually feed into a criminal investigation. And one development that happened this week was a letter from Merrick Garland that was sent to DOJ employees on how they’re supposed to remain neutral in election years. It reads in part that: “partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.”

Apparently, this is not dissimilar from memos that have been sent in the past. But I guess I found it really striking thinking back to the Comey era. And I wondered if you two read anything into it in terms of the January 6 investigation and what we should expect?

KK: Well, that’s a routine reminder and a policy that the DOJ has in place, generally. But I do think people that are concerned, as I’m seeing many liberals are, about the willingness of holding high-level Trump officials accountable, I don’t see how you can call that an unreasonable concern, given our history and the way that executive privileges are understood.

What did surprise me was that people in the White House tend to be deferrant to the argument that people in the White House have special privileges. So I don’t pretend to know what DOJ is doing in secret, which those types of criminal investigations, if they exist, at a high level, would be very tightly held. They treat them as what’s called special investigative matters, SIMs, and they lock those things down so that very few people have access to them, because they don’t want it to leak. And so it is true that perhaps something’s happening in a very discreet way.

But again, presidents tend to like presidential privileges once they come into the White House. And that’s a tendency that I’ve always seen, and I think that the only way that there’ll be a deviation from that is if there’s sufficient public pressure to hold to account a past president. And I guess that that remains to be seen.

NR: Well, and the implication of that, I think, is that DOJ and other agencies, I mean, the Secret Service, and DHS, and all of these agencies that have knowledge of what went on, if anything is really going to happen, they are going to have to make the choice to do something political, right?

KK: Yeah, absolutely. And particularly DOJ, the culture is inimical to that. If you talk to the former FBI at DOJ, they hate to think of themselves as that — even though sometimes it can’t be avoided, as you’re saying. So I do think that there’s a lot of cultural bulwarks to prevent things from moving in that direction. But again, these are really unprecedented circumstances. So we’ll see.

RM: I would say that outside of Washington, there’s another aspect to this, which is that I think that the investigation in Fulton County of Trump’s attempt to pressure officials into overturning the results there, in Georgia, in the presidential election, if Trump were to be indicted there, the key defense, I think, for that insane phone call, which if we didn’t have January 6, that phone call that he made to Raffensperger and the fact that it’s recorded, is an incredible, singularly disturbing and amazing evidence of malpractice, malfeasance by the sitting president, that he was asking the people who counted the votes to just give a different result. I mean, the whole thing is amazing.

And I think, as far as I understand it, the legal defense that Trump could offer, if he was to be indicted there, was that he was basically just doing his job. That he believed these crazy conspiracy theories that there had been all these things wrong with the election. And he was pressing the local officials to take care of them, even though they told him those things weren’t true.

I think that what I’ve noticed is that I think that the hearings have presented a lot of evidence that Trump had very, very good reason — a lot of people around him were telling him that those conspiracy theories were not true. That all of these things that he thought went wrong in Georgia did not go wrong. And he had enough information that he should have known, if he didn’t know, that those things weren’t true, by the time he made that call to Raffensberger, very late, just before January 6, a few days before January 6, that weekend.

So it’s potentially a possibility that if that grand jury decided to go ahead, and the prosecutor decided to indict him, then it goes to a jury in Georgia, and Georgia itself has been resistant to Trump’s charms, obviously. So this could play a role in that way in educating the public, and giving people information — and prosecutors information — that could cut against this argument that he didn’t know.

And then you get back to this somewhat funny but revealing and maybe important thing that Liz Cheney said where she said that this defense of Trump is that poor him, he couldn’t have known. And she said: He’s a 76-year-old man. He’s not an impressionable child. He had every reason to know that the election was not stolen, and yet he persisted right up to demanding that the Georgia Secretary of State give him one more vote than he needed.

NR: Also, the clip of Steve Bannon in October 2020, saying that this was actually their plan to push back from the very beginning, even before the election.

Steve Bannon: And what Trump’s gonna do is declare victory, right? He’s gonna declare victory. But that doesn’t mean he’s the winner. He’s just going to say he’s the winner. [Cross-talk.] Also, if Trump is losing by 10 or 11 o’clock at night, it’s going to be even crazier. No, because he’s gonna sit right down and say they stole it. If Biden is winning, Trump is going to do some crazy show.

RM: Absolutely. And I mean, actually, it was somebody’s plan in 2016. Roger Stone came up with the idea of “stop the steal” in 2016 when they expected Trump to lose and they were talking about it.

I mean, Don, Jr. has a direct message conversation with WikiLeaks where he’s being encouraged to challenge results in 2016. This was a long, long time coming.

NR: Amazing. Well, Ken and Rob, thank you so much for joining me.

RM: Thank you.

KK: Good to be with you.

[End credits music.]

NR: That was Ken Klippenstein and Rob Mackey. And that’s our show.

Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. Laura Flynn is our supervising producer. The show was mixed by William Stanton. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.

And I’m Nausicaa Renner. If you’d like to support our work, go to And if you enjoy this podcast, be sure to also check out Intercepted, as well as Murderville, which is now in its second season.

If you haven’t already, subscribe to the show so you can hear it every week. And please go leave us a rating or a review — it helps people find the show. If you want to give us feedback, email us at [email protected] Thanks for listening.

And I’ll see you soon.