Jamie Raskin on Why It Doesn’t Matter What Trump Believed

Photo-Illustration: Intelligencer; Photo: Drew Angerer/Getty Images

Congressman Jamie Raskin became a familiar face on TV as the lead prosecutor for Donald Trump’s second impeachment trial, and then as a member of the House Select January 6 Committee. In both settings, the Maryland Democrat, who was a longtime law professor at American University before entering politics, laid out a detailed and damning assessment of the former president’s actions, delivering impassioned closing arguments that invoked both the American ideal and his own personal tragedy. Since then, Raskin has remained one of the most outspoken lawmakers on January 6. In the wake of Jack Smith’s new indictment of Trump — which built on the work of the committee — I spoke with Raskin about why he thinks Trump’s case is so weak and what Republicans in the House feel about the latest developments.

I’ll start with something you said on Meet the Press the other day, which is that Trump lawyer John Lauro’s defense of his client on free-speech grounds was “deranged.” As a constitutional lawyer yourself, do you think his team can do any better than that? 
I think they’ve probably zeroed in on their least laughable defense, but the problem is that there’s no First Amendment right to overthrow an election or subvert the constitutional order. I was responding to Trump having called Jack Smith deranged, and I said what was really deranged was the argument that there’s a free-speech right to overthrow democratic institutions.

I’ve thought about the arguments they could make, and I’ve certainly played with the First Amendment one, because Alan Dershowitz was making the same pitch during the impeachment trial — which was even more ridiculous, because that didn’t even go to a criminal prosecution. That was just about whether a president who wages war on his own government in an attempt to stay in office illegally has a free-speech right to do that. Here, at least, they can claim that there’s a criminal prosecution taking place. But of course it’s a prosecution taking place over his conduct, and conduct is braided with speech. That’s true with respect to antitrust conspiracies, insider trading, robbery. It’s very hard to conduct a bank robbery without the robber speaking and telling the teller what to do, but none of it excuses the conduct, which has a culpable and punishable quality to it.

I’m still trying to wrap my head around the question of Trump’s state of mind. I recently spoke with Timothy Heaphy, lead investigator on the January 6 Committee, and he said it would be helpful if Jack Smith could prove that Trump knew what he was saying was untrue. I know this is all about Trump’s conduct, not speech, but if he legitimately thought that the election was stolen and took these actions, would that hurt the case much? 
Maybe you could peel off one juror if they could actually prove that Donald Trump really believed it, but it doesn’t work for two reasons. The first, of course, is that Donald Trump did not believe it and could not have believed it. We have lots of evidence collected by the January 6 committee demonstrating that he did not believe the election was stolen. For one thing, Steve Bannon and Roger Stone were out there saying that Donald Trump was going to assert fraud even though they were well aware that he was going to lose the election.

I was also saying that, for the record. It was predictable.
Right. But Trump was also going around saying stuff like, “Can you believe I lost to this guy?” And he was making plans to leave fully aware that he had lost the election. In any event, let’s say you’re convinced that your bank has cheated you out of money, and your personal lawyer, the White House counsel, and the attorney general tell you that you’re wrong, and 60 federal and state courts tell you that the bank is right and that you’re wrong, but you still believe it. You’re just outraged.

That does not give you a right to rob the bank or a defense in the event that you’re prosecuted for robbing the bank. In other words, his mistake about what the law is cannot excuse his criminal conduct. That’s one of the first things you learn in law school — that ignorance of the law is no excuse. And when he says he believes John Eastman and not the White House counsel, and not the attorney general and not his personal lawyers, he’s just saying that he made a mistake about the law. But a mistake about the law does not excuse criminal conduct.

You can’t just go through 60 subordinates until you find the 61st who tells you what you want to hear, to paraphrase something I read about this.
And that implies he didn’t really believe it, which of course he didn’t. And assuming he really believed it, it doesn’t make any difference. I mean, you could really believe that your bank ripped you off, but it doesn’t give you the right to go in with a gun and rob the bank.

During your time on the January 6 committee, was there a particular moment when you realized that Trump might be criminally responsible, that you would want to make a referral for prosecution?
We had no time for discovery of course — we just had three weeks to get ready — but I thought it could lead to a treason trial. Treason is the only criminal offense that’s defined in the Constitution, and it’s defined as levying arms against the government or adhering to the enemies thereof. And I thought it was possible that there would be sufficient evidence to demonstrate that he had committed treason. And there have been lots of people who’ve been convicted of seditious conspiracy, which means conspiracy to overthrow the government. One can see the contours of Donald Trump’s relationship with the Proud Boys and the Oath Keepers through Roger Stone and Steve Bannon and some others. But again, the evidence there is not fully fleshed out.

Yeah, that’s what Heaphy said as well, that without clear communications the way they have with some of the Proud Boys leaders and Oathkeepers leaders, it would be tough to prove.
Trump made a false observation that there’s filth all over Washington. He left Washington with filth and blood and other substances all over the Capitol, and that was the result of the chain of events he set into motion. The right-wing groups had permits to assemble on January 20. They were planning on having counter-inaugural protests. It was Trump who convinced everyone to change their permits from January 20 to January 6, telling everyone that it wasn’t over yet — “Be there, will be wild.” He was the one who turned the peaceful transfer of power into a locus of violent conflict.

To what extent are you concerned about this trial falling right in the middle of a general election, given that Trump is the clear favorite to win the GOP primary?
Look, this is America. There’s always another election taking place. I mean, we had elections that continued throughout the Civil War. We didn’t change any elections.

I’m not suggesting that we cancel 2024 or anything, just that it might have been better to do this, say, last year.
One of the bad habits that Donald Trump has gotten the whole country into is second-guessing the criminal-justice system and prosecutors. So I’m going to resist the temptation to do that. One can wish that it had happened earlier, but that’s just the nature of things.

Have you heard much, if anything, about the new indictments from rank-and-file Republicans in the House? No members of Congress have really been rushing to defend him specifically on these charges, even though a lot of them are Trump supporters. 
Well, most of them are still in the tank for Donald Trump, and so they’re saying that it would be in the best interest of the country not to proceed with criminal charges. But, of course, the rule of law does not ask the question of what a public-opinion poll would tell us is in the best interest of the country. The rule of law obligates prosecutors to proceed when crimes have been committed and those crimes are of serious gravity.

So essentially, a number of my colleagues are really asking for a two-tiered system of justice. I don’t think they want to give anyone the right to try to overthrow the electoral processes, steal the presidency, but they’re saying that a former president gets a pass for that, and that just can’t be right. Then they say it takes us down the road to being a banana republic if the government prosecutes former politicians. And I respond: On the contrary, it takes us down the road to a banana republic if we don’t prosecute politicians.

But you haven’t heard any Republicans privately cheer this on while publicly denouncing it.
Let’s see … Well, there aren’t too many of those left.

It’s just the true believers now.
Yeah. I mean, it’s the ones who are sleeping on the floor listening to tapes all night.

That’s unsettling.

This interview has been edited for length and clarity.

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