‘Certainly not a finding that there’s complete immunity’: Jan. 6 investigator on Trump immunity case

And joining me now, Timothy Hafey, former federal prosecutor and former lead investigator for the January 6th Select Committee. Tim, it's always good to see you. So first up here, what does this ruling mean for the DC January 6th charges against Donald Trump? It changes them, Alex, but does not eliminate them. I think even under the Supreme Court's narrowing of 1512 C the the obstruction statute at issue, there's a viable theory available to the special counsel that the former president's conduct still violates the statute. There were the submission of these fake elector certificates as part of the conspiracy to obstruct the official proceeding. And that keeps it within this, this narrower definition of obstruction of an official proceeding, the the, the alteration, mutilation, destruction of evidence or documents. So I think the four counts survive the Supreme Court Fisher decision. All right. So then we have Justice Roberts, who wrote the Justice Department's interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison. How do you interpret this, Tim? And does it now give Trump any kind of an opening to describe what happened on January 6th as, say, activism? No, absolutely not. Like, I, I think that the the Chief Justice is broad interpretation, which is essentially is accepting an argument made by Mr. Fisher's attorney ignores the fact that there's an intent element here. Lobbyists don't intend to disrupt the official proceeding. They certainly intend to get their way, but that's through the effective use of the official proceeding. So. So I don't really see that that analogy applies. There's no question that the broader a statute, the more possible manifestations of it can be applied to fact situations, and it gives more discretion to prosecutors. This court has been consistently narrowing the scope of federal criminal statutes. This is just the latest in a series of similar rulings. But I really take issue with the chief Justice's view that this would, the broad interpretation criminalizes lobbying. All right, So new DOJ numbers show that 14127 have been charged in the January 6th attack. More than 1100 of them are not charged with obstruction. The remaining 249 face obstruction and other charges. 52 have been convicted and sentenced only on obstruction. Then you have 27 serving sentences of incarceration. Does the ruling, Tim, mean that none of the rioters can be charged with obstruction? And is this the result of some kind of a serious blunder by the Justice Department? I don't. I wouldn't call it a blunder at all. They were reading the plain language of the statute that says otherwise obstructs an official proceeding. They lost that argument in the Supreme Court, so it will require some resentencings and a reevaluation of future charges. Only really a handful of defendants are charged only with the single felony of obstruction of an official proceeding. The vast majority have been charged with additional felonies and even those that are charged with the 1512 offense have misdemeanor charges. But there's no question that some of them will receive reduced sentencings. But that's a very small percentage, Alex, as your graphic just showed, of the overall full number of 1400 or so defendants that have been charged with Gen. 6 related offenses. See if Justice Gorsuch, who asked whether hecklers at the Supreme Court or the president's State of the Union address could be charged and then raised this question, quote, would pulling a fire alarm before a vote qualify for 20 years in federal prison? I mean, so implications big picture going forward, Tim, what are they? And where are lines going to be drawn the next time someone decides to turn a mob on lawmakers? Yeah. So just as gorgeous hypotheticals get a little closer candidly to potentially misuse of of the broader statute than what the Chief Justice put in the majority opinion did. If someone intentionally, under the government's theory, tried to obstruct an official proceeding, again intentionally in some nefarious way, the government would find that that implicated the broader interpretation in 1512. No longer. The court has shut that off. Unless that offense involves some sort of tangible evidence or document, than 1512 is not available. There are lots of other federal statutes that would criminalize things like pulling a fire alarm falsely. But this statute, now as narrowed, Alex, will not be available. OK As you know, the Supreme Court Monday is expected to deliver its ruling on Trump's claim of absolute immunity. What is your best estimate on how that decision is going to shake out? Yeah. So there are really three options here. They could just affirm the DC Circuit and reject the the former president's immunity claim. That would get the case immediately scheduled for trial later this summer or this fall. Or they could completely accept the defendant, the former president's argument that he has complete immunity, which would end the prosecution. I think the chances, Alex, though, are likely to be somewhere in the middle that that from the questions asked during the oral argument, there may be some zone of conduct by a president while in office that the court may find is immunized. And that would then kick this back to Judge Chuck in to get briefing and have argument as to how the special counsel's evidence fits the test articulated by the Supreme Court. So I think most people expect somewhere in the middle, not a complete affirmance of the DC Circuit, but certainly not a finding that there's complete immunity, some sort of middle ground with a test articulated. Before I let you go, one quick question here on Steve Bannon, who must now surrender to prison. On Monday, after the Supreme Court rejected his last minute appeal, he was convicted of contempt of Congress for defying subpoenas from the January 6th committee. Can you remind us Bannon's role on January 6th and why the committee subpoenaed him? I'm curious what you were looking to hear from him. Yeah, Alex, we have phone records that he was in direct communication with then President Trump on January 5th, that he was involved in the discussions in advance about this political strategy to disrupt the joint session. He actually, in this very foreboding clip, which has been played again and again, we played in our hearings, says get ready tomorrow. All Hell's gonna break loose. It sort of suggests that he was aware of some of the the potential violence and nefarious activity that was afoot. We wanted to ask him about his conversations with all of those different constituencies. And he just completely blew us off, refused to come in. And that's why he was appropriately convicted of criminal contempt. OK Tim Hafey, come see us anytime. Thank you so much, my friend. Thanks, Al.