just asking questions

Why Trump’s Free-Speech Defense Is a ‘Red Herring’

Photo-Illustration: Intelligencer; Photo: Bonnie Jo Mount/The Washington Post via Getty Images

Few people are more familiar with the events surrounding the Capitol riot than Timothy Heaphy. The lead investigator for the January 6 House Select Committee, Heaphy helped lay the groundwork for Jack Smith’s indictment of former president Donald Trump this week. As a white-collar defense lawyer, he also has a handle on how Trump’s attorneys will probably approach the difficult task of keeping their client out of prison. I spoke with Heaphy, who has served as a U.S. attorney as well, about the strength of the charges against Trump, whether he’s surprised it took this long to prosecute the ex-president over January 6, and how Washington’s jury pool might affect a forthcoming trial.

As many have pointed out, this week’s indictment relies quite heavily on the January 6 Committee’s findings, though there are some important new details, such as Donald Trump telling Mike Pence, “You’re too honest.” Were you hoping Jack Smith would uncover more that the committee hadn’t already figured out, or are you satisfied with what the indictment includes?
Look, the facts are what they are. Lawyers are only as successful as what they’re given to work with. The core story has been there, and that’s because people like Bill Barr and Pat Cipollone and Rich Donoghue and Cassidy Hutchinson stood up. The story is exactly what Liz Cheney outlined in her opening statement at the first hearing: This was a multipart, intentional plan of increasing desperation to prevent the joint session from going forward. It starts with the lawsuits, and it ends with launching an angry mob at the Capitol. That’s the story she told and that our hearings and our report outlined.

So no, I’m not surprised or disappointed, because the facts have been out there for a while. Smith will get more important new stuff. The conversation you mentioned is important. Cipollone asserted executive privilege with us, but he has now said he called the president on the night of January 6 and said, You need to concede, you need to pull back these objections. And the president disagreed. So we’re getting more direct conversations, and that’s important but it’s not new per se. We knew the president was not going to stand down, and we knew he didn’t want to issue a statement. So it’s just confirming that.

Smith names six unindicted co-conspirators who may still talk more. He’s got a lot of leverage over them, obviously. 
Absolutely. Look, the co-conspirators are not off the hook because they’re not in the indictment. They’re not in the indictment because Smith wants to go fast. It’s clear to me as a former prosecutor, he’s trying to get this tried as soon as possible. And when you charge one person, you have a better chance than if you charge seven people. He’s got a streamlined case — there are only four counts and a very linear story that positions this, to the best extent possible, to be tried sometime in 2024.

It’s a similar approach to the documents case, where it’s simple to follow for both the public and a potential jury. 
Yep, exactly.

The January 6 Committee spent a lot of time establishing facts about the riot itself, but Smith more or less skipped from Trump calling for people to gather in Washington to him, Rudy Giuliani, and others pressuring people over fake electors and what have you. I’ve seen the argument that bringing charges over the riot itself might have been much more difficult to prove than the others and that they could have been a distraction. Do you agree?
The First Amendment defense I think is likely coming would have been more potentially relevant if there was an incitement-of-insurrection count. Going back to what I said before, I think the special counsel has not used that statute — which arguably applies in part — in order to streamline the case. The other issue here is that the most serious charge stemming from the riot itself is seditious conspiracy, which requires proof of intent to use force. They had that with the Proud Boys and the Oath Keepers, but it’s harder to establish with the president. It’s easier to establish that he intended to disrupt. I think the verbs are obstruct, interfere with, or impede an official proceeding. That’s a much easier threshold of evidence than that he intended it to be violent.

We looked at that and did not list seditious conspiracy as one the federal statutes for which we made a criminal referral. I’m not saying it doesn’t exist. We looked very hard for connections between the White House and folks on the ground. That largely would’ve come from Steve Bannon and Roger Stone and Mike Flynn. None of them talked to us, so we could not establish that the president or others were coordinating with those extremist groups or anybody on the ground. I’m not sure that they were or were not; we just weren’t able to establish that as a matter of evidence. That’s reflected in our referrals, and I think it’s reflected in the charges here.

Some people have been focusing on Trump’s state of mind as portrayed in the indictment, which alleges he knowingly lied about losing the election, or whether he was self-deluded enough to actually believe what he was saying. That’s where his comment to Pence about honesty comes into play. But Trump isn’t being charged with lying, even though his alleged crimes are built on lies. So is this conversation about what he was thinking a bit of a distraction? How much does it matter?
It matters, but there’s a difference between state of mind and free speech. His defense is that this is punishing political speech. It’s just wrong. This is punishing conduct, not speech. If he had stood up and said the election was stolen without taking subsequent action to actually prevent the transfer of power, that would be fine. But he didn’t. The speech informs the conduct. It’s the fake electors, the pressure, the potential change at the Department of Justice, all those steps that he took. That’s conduct, not speech. So it’s just a red herring to say this is strictly punishing political speech. He went well beyond speech and took a lot of action, and that’s why it’s criminal.

The intent is really important because in order to show that there was a 1512 violation, they have to show that he intended to disrupt the joint session. So that then falls back on, Was he aware that what he was saying was false? Was he aware that there was no election fraud, that the vice-president did not have that authority? That informs his intent and makes his actions more nefarious. He’s not using the joint session as a sort of legitimate forum. He’s actually trying to subvert it because he knows there’s no factual basis for those objections.

Yeah, a colleague noted that Trump’s Election Night proclamation that he actually won was not included in the indictment. The events laid out begin on November 14, quite a bit after the election, I assume because they’re trying to prove that those statements are the ones that inspired action, not just saying I won.
Precisely. Again, you can stand up in front of America and say, I won, it was stolen from me. He could say that all the time, but he went beyond saying it to actually taking steps to implement this strategy to prevent the outcome from being certified. And that’s why it’s criminal.

New York contributing writer Ankush Khardori has been critical of Merrick Garland and Joe Biden for waiting so long to take action. As he lays it out, they purposely avoided it for more than a year until the January 6 Committee uncovered all this evidence and forced the Department of Justice’s hand. What do you make of that argument?
I don’t know and can’t comment on what was informing the Department of Justice’s leadership decisions. I can say that as we pursued what I call the white-collar part of the case, we were getting there first. So when we were interviewing people like Marc Short, Rich Donoghue, Jeff Rosen, Cassidy Hutchinson, it was clear that we were the first footprints in the snow. The DOJ had not been focused on those people and those issues. Conversely, they were way ahead of us when it came to the blue-collar part of the case: the rioters themselves, the Proud Boys, the Oath Keepers. We had trouble actually getting information because a lot of those people were criminally charged and they weren’t going to talk to us when they had Fifth Amendment privilege.

When our hearings started presenting those facts, they were compelling. And I think that likely showed the world, including the Department of Justice that this might very well be criminal, and they had to look into it. I can’t speculate as to why they did or didn’t take certain steps.

But did it surprise you that you were the first people to look into this stuff? 
Yes. It did surprise us because it was so clear that these witnesses had really relevant information that informed the riot. It’s not just who was hitting cops at the Capitol; it’s why they were there in the first place.

Right, the rioters are the low-hanging fruit.
Yeah, exactly. If we had just done a report about that and sketched out who moved where at the Capitol, we would’ve been way underinclusive in terms of our mandate. Our mandate was the facts surrounding the attack on the Capitol. That’s in the enabling statute. So we took that seriously. You have to look at motivation. You have to look at the elements that put the riot in place. And that reaches way, way back into things well beyond what happened on either side of the fence at the Capitol.

Let’s look ahead to the actual trial. The judge in this case, Tanya Chutkan, has handed down notably severe sentences related to January 6. And this will be tried in Washington, D.C., which, of course, is heavily Democratic. How do you think the judge and venue affect things?
I don’t think it makes any difference. I think we spend way too much time gaming out jury pools. The same thing happened in Florida. In my experience — and I’ve tried cases in D.C., I was an assistant U.S. Attorney there for years — jurors pay attention to the evidence and they follow the court’s instructions. I don’t think it matters where this case is tried; it could be tried in Alaska or Philadelphia. Same thing with the documents. Case jurors generally do the right thing, and those who may not are typically screened out by the lawyers and the judge. I generally think the process works, and the 12 people that sit in that jury box — regardless of whether they live in D.C. or wherever they live — I just don’t think it matters. And I don’t think Smith cares either. He’s building cases he believes are so strong that they could literally grab 12 people off the street, put them in the jury box, and he’d have the goods to get a conviction.

This interview has been edited for length and clarity.

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Why Trump’s Free-Speech Defense Is a ‘Red Herring’