Lawfare Presents: The Aftermath

The fate of Donald Trump and the Jan. 6 prisoners are intertwined. The prisoners' biggest hope for freedom is if Donald Trump wins the 2024 election, takes office and makes the federal cases go away. But the people who stormed the Capitol committed straightforward crimes that were easier to investigate, easier to indict, easier to prove. Three years after Jan. 6, the story of how they have been held criminally accountable is mostly over.

But for Trump and other Jan. 6 plotters, that story is just beginning.

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It’s December 2020. Donald Trump continues to deny that he has lost the election. He and his inner circle are working feverishly to try to overturn it while Trump is getting more and more irate. Then, on Dec. 21, he meets a man named Jeffrey Clark. Suddenly, the full might of the Justice Department is within reach. And he plans to use it. 

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Social media was key to Jan. 6. End to end. It was key to gathering the crowd that stormed the Capitol. It was key to generating the sentiment that led people to drop their lives to come to Washington willing to commit crimes. It was key to sending them home when the deed was done. Of course, we’re all on social media. But how does social media propel people to action, even inspire them to move from online to on the ground—and to the grounds of the Capitol? It’s impossible to track. But we know that some accounts wielded enormous influence, and none more so than Donald Trump’s. The thing is, Trump wasn’t the only one behind his social media face. He had one trusted aide who ran the accounts with him.

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In December 2020, The President and his advisors are still fighting to overturn the results of November’s presidential election. Then, in the middle of the month, a lawyer in Wisconsin sends a memo to the president’s legal team. This memo marks the beginning of a scheme that works its way through state legislatures and the halls of Congress, then to Trump himself. It is a scheme that ends with the Vice President of the United States in mortal danger. The main architect and proponent of this scheme is a little-known law professor from California, John Eastman.

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It’s been three years since the insurrection of January 6th. There have been congressional investigations, prosecutions, and legal reforms, and it’s looking like 2024 will be the year that Donald Trump and his inner circle finally confront the criminal justice system. But is that enough to respond to an existential threat to our democracy?

It all started with a lie: that Trump had won the 2020 election. So we begin there, with a look at the man who—other than Trump—mattered more to the Big Lie than anybody else: Rudy Giuliani.

Guests include: Kyle Cheney, Congressional Reporter at POLITICO & Aaron Blake, Political Reporter and author of the upcoming Campaign Moment newsletter at the Washington Post.

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In the days after the January 6th insurrection, for Raskin and his colleagues, it wasn’t entirely clear that the insurrection was over. And for at least a brief moment, there seemed to be some kind of consensus. 

The moment turned out to be brief indeed, at least with respect to accountability for Trump himself. Within a week, the consensus had devolved into a sharp partisan divide. The House had passed an article of impeachment charging Trump with incitement to insurrection—but only a small handful of Republicans supported it. Less than two weeks after that, President Biden had taken office and Raskin was prosecuting the former president in Trump’s second Senate impeachment trial.

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In the wake of January 6, there were immediate calls for en masse arrests of all individuals on the Capitol compound, and demands that every one of them be hauled into court to stand trial. 

But our justice system does not work that way. The bedrock of our legal system is the due process of law. You can’t be tried for being part of an insurrectionist mob, only for the specific things that you did–or, more precisely, what prosecutors can prove you did.  

January 6, is not one case, but thousands of cases. In this episode, we explore what happened inside the Department of Justice in the days after the Capitol Attack.

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