Hello, Deadline: Legal Blog readers!
I’m excited to report that I had the chance to interview Rep. Jamie Raskin, D-Md., on Friday. During our call, I asked the former House Jan. 6 committee member about the insurrection, Donald Trump’s legal troubles, the Supreme Court and the fate of democracy. While those are all technically distinct subjects, I think our conversation shows that they’re really all one thread.
The interview has been edited for clarity and length.
Trump, the 'one-man crime wave'
Jordan Rubin: Obviously, you believe that there’s a good case that Donald Trump and others have committed federal crimes. What would it mean if charges did not ultimately come?
Rep. Jamie Raskin: Even before entertaining that hypothetical challenge, I’d rather focus on the idea that it’s almost inevitable that there will be charges, because the evidence is just so overwhelming.
Interference with a federal proceeding — in this case, the joint session of Congress, counting Electoral College votes — was not only the crime, but it was the whole point of “Stop the Steal.” That was Donald Trump’s complete and obvious and naked intent to get people to go in and interfere with the counting of votes and to stop it, delay it, postpone it by any means necessary. So that just seems completely straightforward. And that’s just one of the referrals.
We think there will be charges probably on some things we didn’t even have, because we don’t have all of the prosecutorial resources that the Department of Justice has, and so we think they probably collected a lot more evidence than we got.
Now, if he were to somehow escape the grasp of the criminal justice system here, this would be a painful thing for the country and for millions and millions of people who have held on to the idea that we have one system of justice. And it doesn’t make sense that more than 900 people can be charged and prosecuted and convicted and sentenced for things like assaulting federal officers and destroying federal property and seditious conspiracy, which means conspiracy to overthrow the government, and yet the guy who’s at the very top of the pyramid, who set all of the events into motion, somehow walks off scot free. I mean, I think that is a blow to our justice system.
On the other hand, he’s facing lots of other criminal charges and civil charges around the country. He’s basically a one-man crime wave. And so he might get his comeuppance in some other jurisdictions first, I don’t know about that. But ultimately, we have to believe that the justice system is going to work.
Rubin: I’m wondering what you think is stopping another Jan. 6 from happening. Are you confident that we’re prepared to stop this violence from happening again?
Raskin: That’s another very good question. Ultimately, as we saw on Jan. 6, it comes down to a question of executive leadership. Had you had a president who was committed to putting down the insurrection, there would have been a very different course of events, and I think it would have been stopped much earlier in the day. So I think that the question of political leadership is essential. That’s something that the founders knew.
So I think with Joe Biden as president, if nothing else changed, there would be a huge difference. But I think that there’s much greater readiness now in a number of the different relevant police forces. And I think that there have been some improvements made but I do think that there continues to be a need for a lot of progress on that front.
Rubin: Picking up on that, a criticism of the Jan. 6 committee’s work was not focusing on that law enforcement aspect. I’m wondering what you have to say about that.
Raskin: Well, look, I think that the committee fairly drew the conclusion and pointed out that there was a lot more information available about the impending attack on the Congress and the vice president and the Capitol than would be reflected in the preparations that were made and the response that came.
Of course, nobody knew that the president would essentially cross enemy lines and go over to the other side and create the momentum for this violent assault. So I think that that is a fair conversation that still needs to happen. But you were dealing with very fragmented law enforcement authorities.
I mean, there was the Capitol Police, which were under the guidance of a complex, bipartisan, bicameral leadership structure. There’s the National Guard, which, in the District of Columbia reported ultimately to the president of the United States through the executive branch. There were the D.C. police, there was the Maryland police, there was the Virginia police.
There were different forces that were mobilized and activated in different ways. And again, without a centralized political leadership saying we’re going to defend our democracy, there was a lot of chaos. There’s no doubt about it. So we need to deal with a whole range of problems that surfaced on that day.
Supreme Court's 'anti-democratic' crusade
Rubin: Twenty years ago you published a book called "Overruling Democracy: The Supreme Court versus the American People." That sounds like a book that could be written today with the same title. How do you assess the Supreme Court since then and its impact on democracy now?
Raskin: Well, I do think that the Supreme Court has positioned itself as a very powerful anti-democratic instrument and force in our constitutional culture. And by that I don’t mean that they strike down laws or strike down public enactments, because, of course, that’s built into the idea of the Supreme Court and judicial review. Rather, I mean the Supreme Court has proven itself to be an enemy of one person, one vote political democracy. It has rendered a whole series of decisions that undermine the right to vote that have put the Voting Rights Act into a straitjacket and that have basically rejected the democratic values that should be governing the electoral system.
So we’ve got a very serious problem with the Supreme Court acting as a reactionary instrument against political equality and the political rights of the people. And that’s only gotten more serious with the Citizens United decision, which elevates corporate political rights over individual political rights and inflates the power of corporations to the size of a Goodyear blimp.
Rubin: So that sounds like a premise that could support wanting to add seats to the Supreme Court. Is that a position that you would then support, given the view that you’ve laid out?
Raskin: Well, the size of the Supreme Court has changed nine different times, I believe. There’s nothing in the Constitution that defines the size of the Supreme Court as nine justices. It has been seven, it’s been five, the numbers change. This is obviously a profoundly gerrymandered and jerry rigged Supreme Court because they kept my constituent, Merrick Garland, currently the Attorney General, off of the Supreme Court, although when he was nominated, as Chief Judge of the D.C. Circuit, he was perhaps the most qualified person who’s been nominated to the Supreme Court in many decades, and they didn’t even give him a hearing.
So there had been all of these bizarre tamperings with the process, and you now have a six to three right-wing majority in the Supreme Court that’s built on nominations from presidents like George W. Bush, like Donald Trump, who were elected with a minority of the popular vote. You’ve got the Supreme Court that is way to the right of the American people and hands down decisions that are extremely unpopular, like the Dobbs decision overturning more than a half century of Supreme Court precedent upholding the right of a woman to choose an abortion in consultation with her physician and her family. So we have a real crisis of constitutional legitimacy of the Supreme Court. That is a profound problem.
Rubin: So what’s the solution then? You’ve laid out the problem. There is a potential legislative solution by, again, changing the size of the court. Is that something that you have a position on?
Raskin: You’re several steps ahead of me, because I can’t even think about that until and unless we have enough democracy in Congress that something like that could be meaningfully discussed.
I’m not averse to the discussion, but at the same time, I told my constituents long ago, when I first ran for office, I am not in politics in order to fight valiant, losing battles and then just sing Joan Baez songs when it’s all over about what a battle we lost.
I want to win. And so we need strategies for mobilizing the majority of Americans to put us into a place in Congress where we can actually make progress on these things.
McCarthy 'had to give the farm away' to MAGA
Rubin: Sounds like democracy is a subject that’s on your mind.
Raskin: Very much. I think that it will be on my mind and in my heart for the rest of my life after what I lived through on Jan. 6. I mean, it was always close to my heart, but that’s as close to fascism as I ever want to see my country come or my constituents or my family. We almost lost it all on Jan. 6.
And the problem is that the Republican Party, rather than decisively repudiating Donald Trump and the forces that organized the insurrection and attempted coup against us, has pandered to them and capitulated to them. And so now, you really do see circus-like behavior taking place in the House of Representatives.
It began, of course, with Kevin McCarthy’s attempt just to win, but he had to give the farm away to the most right-wing MAGA faction within his caucus and all of these people have been appointed to all the committees that they want, and they are in control of the Republican conference. And that’s a scary thing from the standpoint of the republic.
Rubin: On that subject, how long do you think that Speaker McCarthy is going to stay speaker?
Raskin: As long as he keeps doing whatever the MAGA caucus wants him to do. When they say "jump" and he says "how high," then they’re fine with that. Jim Jordan gets to run the Judiciary Committee and Marjorie Taylor Greene and Lauren Boebert on the Oversight Committee, and nobody’s messing with George Santos because they need his vote, too.
There’s basically nothing that you can do to get expelled from the Republican conference and the Republican political organization, other than opposing Donald Trump.