John Donvan:

Hi everybody. I’m John Donvan and this is Agree to Disagree, from Intelligence Squared. And today, we are debating a choice that has to be made, to indict Donald Trump or not. All summer, we have seen the congressional committee investigating the January 6 attack, making the case, they say, that the former president committed serious felonies around that day and around an effort for the weeks before that to overturn the results of the 2020 election. And they have been presenting evidence. They have been bringing in eye witnesses, in person. They’ve been showing testimony through depositions. They’ve been sharing texts and emails and videos. Evidence, they have gathered it, they have organized it, and now what is supposed to happen? What is the calculation to be made by the nation’s top law enforcement team at the Department of Justice? Indict Trump and prosecute him? What if they do and what if they lose? Or for that matter, what if they do and what if they win? Or the other option, do not indict Trump. Let him off. And what would be the lasting impact of that in action? So that’s a lot of questions and uncertainty around the choice of indict or don’t indict Trump. And that’s what we are debating.

Should Trump be indicted? We have two guests who have given enormous thought to this question and they have made their stances public on it already, because they’ve been writing about it, they’ve been talking about it. One is a former Republican member of Congress. The other is a professor of law and political science. And if you suspect from that description you know who is on what side of the question right now, well, stand by to be a little bit surprised. I want to welcome our guests, Barbara Comstock and Tom Ginsburg. Barbara and Tom, thanks so much for joining us.

Barbara Comstock:

Great to be with you.

Tom Ginsburg:

Pleasure to be with you both.

John Donvan:

So let’s start out by sorting out who is on which side of our central question. Barbara Comstock, you are a Republican who served four years in Congress. You were representing uh district in Northern Virginia. You also served in Virginia state legislature. And I want to ask you, Barbara, to start us off with a simple yes or no to the question before us. Should Trump be indicted? Are you a yes or are you a no?

Barbara Comstock:

I am a yes. No one should be above the law, including the president, and especially the president.

John Donvan:

Thank you, Barbara. And Tom Ginsburg, you’re at the University of Chicago. You teach political science, but also, especially relevant to what we’ll be discussing today, you teach international law and are an expert in the constitutions of other countries, where there may well be lessons to be learned about the issue that’s facing us right now. So Barbara’s answer of course gives away which side you’re on, but just to make it official. On the question of whether Trump should be indicted, are you a yes or a no, Tom?

Tom Ginsburg:

Oh, I’m a no. I think the risks outweigh the benefits at this point.

John Donvan:

All right, let’s get into it. I want to go back to you Barbara. So what’s your case? Wh- where, what is your thinking on saying that Trump should be indicted and how did you get to that decision?

Barbara Comstock:

Well, I think um, you know, the case is laid out by the Justice Department has been very compelling and continues to be filled in every day with voluminous uh documents and record uh and uh testimony uh that is shown this spread of false and fraudulent information to the American public on the election being stolen, his own campaign, the Justice Department, his White House council, even his family told him that was false. Yet to this day, he continues to spread that false election and threaten people, both politically as well as, you know, people end up still getting death threats if you disagree with him. So this, you know, fraudulent information and fraud on the public continues to this day. You know, corruptly planning to uh replace the acting attorney general with, you know, Trump apologist, Jeffrey Clark, so the Justice Department could then substantiate his fake election claims, tried to subvert the Justice Department.

Fortunately, that was um, you know, the Justice Department and other officials diverted that, but that pressure was definitely put, you know, and, and threats made there, pressuring the vice president of course. And even after that didn’t work, uh pressuring the state election officials and state legislatures. Again, putting that pressure on them, threatening um them um, the fake electors, which is very much under investigation still by uh by the Justice Department, um instructing Republicans and, you know, in, in multiple states to create these false electors uh slates that even we’re now getting these documents that are saying that even they thought this was traderist and possibly illegal behavior, but they signed up for it. And then summoning this violent mob, and I think, ver- the information there that came out in the most recent hearing showing not only didn’t he um, you know, that he called the violent mob, sent them up there, that he knew they were armed. The detail on that.

The secret service records showing that he knew they were armed, yet he sent them up there, that he also and then that he deliberately did not call when everybody, the Congress, his own staff, uh wanted him to send up the National Guard. That not only didn’t he do it, he chose intentionally not to do it. And that Mike Pence and um and General Milley had to do it and that he didn’t and he even lied about it after, showing his guilty intent there, that he wanted that mob to continue to inflame and stop the uh Congress official proceedings.

John Donvan:

So you’re say that the, that the it, it, it the indictment is mandated by the fact that the case is there? That on the merits, it’s sort- it’s so obvious, it’s undeniable, that there’s no choice but to go forward with it?

Barbara Comstock:

Yes, and I think there’s continuing, I think the, the committee, you know, has had they, they haven’t even been able to fill in the extensive detail that is there and that I think an indictment and, and then a trial in DC will be able to filled out with Republican after Republican witness that will be his own White House council, his own attorney general, his own Justice Department officials, his own White House staff, even his own family, and his own campaign staff. All of who, whom told him this was false information, tried to stop him at every point, and then, you know, even his own vice president who was uh eh and his staff and that’s why I think you have the vice president’s staff and lawyers in front of the grand jury right now, as well as White House staff, and now White House council, Pat, so we know.

John Donvan:

Okay.

Barbara Comstock:

[inaudible

]

John Donvan:

Y- y- you’ve made, you’ve made a case, a very persuasive case telling us that you’re very persuaded that the guilt is so obvious, it’s so obvious that there is no choice but to indict, just on the merits itself. And I want to Tom Ginsburg. And Tom, first hear from you as you said at the beginning, you think more harm than good would be done uh by, by indicting him. And I want to hear why.

Tom Ginsburg:

Yeah, I have no uh doubt that everything Barbara said is true. I would even, you know, uh use the term traitorist in a uh at least a colloquial sense, if not a legal sense, for all the activity that we now know about that the January 6 committee has put on the record. It is ex- incredibly valuable proceedings for the long term health of our democracy. The question of course is what is the mechanism of accountability? Is it legal or is it political? And I think um, you know, there is a jump between everything we’ve heard in the committee and actually winning a conviction in a court of law, beyond a reasonable doubt, of a specific crime. And that requires, of course, that you have, you know, overwhelming evidence of, I think the key question would be intent to do all these things. Trump’ll be on the stand and he will say, “Oh, I was relying on this lawyer. Sidney Powell told me it was okay. Why was I to believe her, him, eh, you know, why should I believe Pat [inaudible

] over Sidney Powell and Rudy Giuliani?” So intent could be hard to prove. That means that you have to think about the consequence of losing a criminal trial against Trump, which would, I think, empower him further.

Now politically, I actually think myself that Trump, at this point, is a dying ember. Um and yet he is a dying ember that thrives on oxygen. And trial will actually give him a platform, will force Fox News to broadcast news about him, which they have not been doing, and will breathe, you know, new attention to him before his base which is gonna be behind him whether he wins or loses. If, you know, Trump manages to win the case against the government, well then not only the base, but marginal Republicans in the suburbs of, you know, Philadelphia, who actually decide American elections, might uh be empowered to, you know, think he was unfairly treated.

John Donvan:

So Barbara Comstock, you’ve heard what Tom Ginsburg has to say and I, I’d like to hear what your challenge to his thinking would be.

Barbara Comstock:

Well, I think that the real problem there is that you really have a situation where, you know, remember back when the impeachment for these activities, not the first impeachment, but the second impeachment for the January 6 activities. We were told, “Well, we can’t impeach a former president, because his activities, you know, kind of all happened uh right there at the end, so he was out of office before he really could get the impeachment together.” So they said, “The legal process is the proper place for this to happen. Remember Mitch McConnell made a very compelling statement that said, you know, ah he, he excoriated Trump as, as the press reported at the time for his actions saying it was a disgraceful dereliction of duty and he was responsible for what happened, of for provoking the events, but that the proper place was the courts. So you now have a situation where you had, you know, the branch of the body that was assaulted saying, “Nope, you got to take it over to the courts now, because it was too late. We couldn’t, you know, he did all his, kind of his crimes (laughs) too late in the game to get him on impeachment, so take it to the courts.” And then we’re saying, “Well, no that would be t- too traumatic for everybody.”

But what you have here, and I think what we’ve heard that’s really so troubling in these hearings, is that you h- this is all ongoing to this day. I mean, y- you had when you heard those women who were election officials being threatened by Donald Trump in those tweets. These are women um who were just serving their country, you know, going and, you know, uh helping people vote who he, you know, attacked and, and you know, he I may still be attacking, who can’t even their homes because people are, you know, attribute, you know, are attacking them.

Cassidy Hutchinson, who all she did was get called and testify under oath. Her testimony has been verified now by, by documents, by secret service documents, by other, you know, oral testimony, by um Pat Cipollone, who had to be a little, you know, dragged kicking and screaming in there. Um but now he’s going before a grand jury too, where he I don’t expect that he will be able to claim executive privilege, but it has been confirmed and so we’ve s- and yet he threatens her. You saw even Republicans who are threatening Sarah Matthews, who testified. So people to this day are threatened physically. They get death threats. I and our and, and, and this is ongoing. And if you say, “Oh, handle that all politically,” well, I can tell you, my former Republican colleagues kind of, a lot of them live like in a battered woman’s shelter.

And they are afraid of this man. Because not only can they end their political lives and their futures as we see everyday, they are afraid for their families and justifiably. I mean, Liz Cheney has a physical detail now. We’ve all, you know, Adam Kinzinger has played for people the death threats that he and his young, you know, his new young baby have gotten, his wife and young baby. This happens to people all the time.

John Donvan:

More from Intelligence Squared US when we return.

Welcome back to Intelligence Squared US. Let’s get back to our debate.

Uh so, so Tom, based on what Barbara is saying, I, I, I think I hear implicitly she’s saying to, to not, uh to not um make Donald Trump try to pay for this would be disastrous, the implications of not making him pay, or trying to make him pay would send a terrible message. And I’d like you to take that on.

Tom Ginsburg:

He has unleashed, of course, a uh a huge increase in threats to members of Congress, to election officials. This is genuinely happening. I’d like to ask Barbara.

John Donvan:

Wait, before, before you do that.

Tom Ginsburg:

Yeah.

John Donvan:

I’d, I’d like to, I’d just like you to take on my question.

Tom Ginsburg:

Hmm.

John Donvan:

Which is what would be the implications of not doing anything about Trump? In this regard.

Tom Ginsburg:

Well, first of all, there’s no, I’m not, not for not doing anything. I think all of these other people should be in, indicted and uh you know um there, there was a conspiracy. And you know, that does include Mike Flynn. It does include um Sidney Powell and Guiliani. And those people need to be sanctioned very severely because, you know, violators of the rule of law, which is what Trump is, um are only empowered because people around them are betting that they’re going to win. But if people around them know that their necks are on the line, that they’re going to be disbarred, that they’re going to serve time, they don’t go along with violators. There’s nothing you can do that’s going to prevent Donald Trump from violating the law. He’ll get up on this trial, which Barbara would like to have, and he’ll purger himself and he’ll, you know, he’s not, he the, the rule of law’s not a huge value for him. But you do need to indict all those other people for sure.

Now, you know, I’m not say- and, and, and then the question is, “Well, what is the accountability?” The accountability is him being rejected. (laughs) by the party and, you know, us moving forward.

Barbara Comstock:

But I, I would say, as my friend Harry Dunn, the offic-, the Capital Hill officer who, and I’ve worked these officers to get these hearings and commend them for coming forward at great personal cost for themselves. And of course, the cost that they paid on that day and continue to pay for themselves speaking out, get attacked by Donald Trump and others. They get all crisis actors by people um on, on Fox News. Um they um and, and recently just got called that when they sat at hearing. But he says, “Why do you indict, you’re gonna go after the, the guys, you know, who we’re, we’re convicting the people, the 800 people we’re indicting and maybe convicting the people who broke in and did everything, but the guy who ordered them up there we’re not doing.”

Yeah, I think it’s great if, you know, it’s certainly Mark Meadows, Mike Flynn, Sidney, and Rudy, and all these people who did this. Yes, they should be disbarred. They should be indicted. I, I expect they will. But the man who was at the center of it, um if, if he’s not, that does say, you know, you can be the president. I mean, he’s already said, “I’m gonna pardon all these people when I get elected again.” So that’s why you have around Donald Trump and his hundred and 25 million dollars little operation going on here. You have this whole grifter class around him right now, because they know they’re all gonna be pardoned and they’re all gonna go back to making their, you know, hundreds of thousands and even millions of dollars by uh the big lie here. And you have people. I mean, the people who are working, here, here’s an irony for you. Um Donald Trump’s campaign manager, um forgetting his name right now, but he’s working on Harriet Hageman’s uh, he’s a consultant on Harriet Hageman’s race, you know, against Liz Cheney right now. He testified under oath that he told Donald Trump, “You lost the race.”

So he knows the big lies of fraud, right? But he’s out running Harriet Hageman’s race uh helping her to say up the big lie, Donald Trump won. He won the race and we’ve got to do this and Liz Cheney’s horrible. So this what and he’s getting paid all of money to do it, I’m sure.

Tom Ginsburg:

I mean, I want to interrupt and just ask you. Do, do you think any Wyoming voters’ minds would changed about Harriet Hageman if Trump was convicted?

Barbara Comstock:

Well, what I know is that uh Trump would have to pay the ultimate price for his lies, for his fraud on the American people, and you’d also see uh as he’s indicted and you follow the money, because I certainly think what we always see with these cases, and I think the Justice Department may start looking a lot at the money, because certainly Sidney Powell raised money on this. Mike Flynn did, um lot of the other people involved. There’s a lot of money slashing around here and if the Justice Department, which the committee hasn’t done so much, if they start following the money on this, I think again this fraud on the American people, and I would like, ’cause you had mentioned, “Hey, it’s going to be hard to prove intent.”

I don’t think it’s going to be, because I think that intent, when you have all these credible Republican, Trump Republicans, his White House council, Bill Barr, you know, his own family saying, “We told him he lost.” His campaign versus the clown car lawyers, as Bill Barr called them. Um they were telling him ridiculous things. And he knew that. And we even have testimony where he said, “Yeah, I know those guys are clowns.” You know, we he admitted that. So, you know, but even more importantly, what we saw with intent was when he started that fire up at the capital. You know, when you start a fire, maybe he didn’t, you can say, “Okay, I didn’t intend to start the fire. I sent them down there. I didn’t know they’d start the fire.” But if you start a fire, you know people are in the house. You don’t get to walk away from that fire. You’ve got to call 911. You’ve got to do something.

John Donvan:

So it’s, you know.

Barbara Comstock:

The reason that everybody called him on January 6th that day ’cause they knew he was the only one who could put out that fire. And he refused to put out that fire. And we have so much more testimony now on his intent not to put out the fire and to keep the fire burning [inaudible

].

John Donvan:

So what about, let, let me jump in and, and Tom, what about then the case that Barbara’s making that actually the intent case is actually pretty clear? A minute ago two ago you said you think it’s uh going to be hard prove. Why do you think it’ll be hard to prove?

Tom Ginsburg:

I’m not a federal prosecutor, but I do think that everything we’re watching on TV is a congressional hearing. Everything that enters the court of law in a criminal trial has to be proved beyond a reasonable doubt. That means if one juror, you know, suspects after testimony, that Trump really thought he, you know, had won the election and that there was gonna be no violence, you know, then that juror could uh get him declared not guilty. And then he wins the case. If I was confident uh that a criminal trial, criminal conviction was, you know, for sure, I would certainly agree with Barbara. I’m not. I wonder if I could return to the point about violence?

John Donvan:

Sure, please do.

Tom Ginsburg:

Let me, you know, obviously we’re in an our political culture’s becoming ever more violent all the time. It’s horrific and we need people to step up and say it’s inappropriate. Um and we need consequences for those who threaten and engage and that might require a change in the law. Right now, Congress is considering a bill which would make a crime of intimidating poll workers. I think that’s wonderful thing to do. But have you thought about what would happen when the marshals come to arrest Donald Trump? That could be an extremely violent affair. If he calls his, you know, his supporters, his armed supporters to come to Mar-a-Lago to defend him from the witch hunt. You know, we might end up in an even worse place as far as political violence goes. [inaudible

]

Barbara Comstock:

[inaudible

] disagree. And in fact, if you go back to the second impeachment, Donald Trump made that same threat right after January 6. He said, “Boy, if you impeach me, or if you do the 25th amendment, my people may get really mad.” Remember, he said to Kevin McCarthy, “Hey, these people are more upset about the election than you are.” And then when they started talking about the impeach- you know the impeachment, then he said, “Boy, you may get people really mad.” That didn’t work. And you know, uh there’s nobody more incendiary than uh Steve Bannon. And he tried that trick in DC too. But I [inaudible

].

Tom Ginsburg:

Don’t you think it did work? You were talking before about all of the threats to uh you know to the witnesses?

Barbara Comstock:

[inaudible

].

Tom Ginsburg:

That’s a direct.

Barbara Comstock:

Okay, but we are able, we are, we’re one-on-one helping them. But the these big mobs coming to DC now, that is dissipating. You’re right, you know. People are seeing Donald Trump is, you know, he himself more, more elected officials. Let me tell, I mean, the elected officials, if he disappeared tomorrow, I have said many times, there would be nobody elected in the search party. You know?

Tom Ginsburg:

(laughs)

John Donvan:

(laughs)

Barbara Comstock:

From Kevin McCarthy on down. These people would be happy to see him go. Like I said, they are living in a battered women’s shelter. They kind of like listen we know. We know he’s terrible, but they can’t quit him. You know, because they’re afraid of him. And they’re afraid of his people and whatever. But if he were, you know, there is a power in that indictment and in the facts and in the fact that you’re and what you see in these hearings it’s his own people. I mean, listen. Even Ivanka and Jared aren’t out on Fox defending him. Fox News has pretty much cut him off. They counter, when he was out and, I mean, now unfortunately the Arizona disastrous team there that I certainly hope will win and I expect, I mean lose, and I expect to lose. When he was out uh at a rally there, Fox News counter programmed with Laura Ingram doing an interview with uh Ron, Governor Ron DeSantis. So they’ve dropped him, you know, and, and are moving on. Wall Street Journal editorialized against him New York Post. So there’s gonna be, there’s gonna be a move away from him.

So I don’t buy that, because already he’s not able to summon the mobs the way he [inaudible

].

John Donvan:

All right, but, but Tom.

Barbara Comstock:

Steve Barron, Steve Barron’s gonna be in jail soon, so he doesn’t have his podcast.

John Donvan:

Eh.

Barbara Comstock:

And Alex Jones apparently is going bankrupt, so he can’t either. So.

John Donvan:

All right, so, so Barbara’s making a case Tom that, that the threat of violence is, is diminishing.

Barbara Comstock:

[inaudible

].

John Donvan:

I don’t think, I don’t think you’re convinced, but my question to you, Tom, is even if the threat of violence was very credible and very high, does that justify.

Barbara Comstock:

[inaudible

].

John Donvan:

Giving, giving a veto to the, to the, to letting violence veto uh.

Barbara Comstock:

Yeah.

John Donvan:

A judicial process?

Tom Ginsburg:

There’s an old expression that if you kill one person you’re a murderer and if you kill a million you’re a national here. Um and, you know, that i- there’s something to that in this context. Donald Trump still has, despite everything, um a tremendous amount of political support. I happen to think that it is dying out. I heard Barbara just say that. Uh in the sense of being able to actually win an American election. And that’s one reason I’m specifically worried about uh trying him in because I do think he’s a person who thrives on negative media attention, and you know, might breathe new life into him and [inaudible

].

Barbara Comstock:

Yeah, but we can’t be [inaudible

], you know, appeasing him [inaudible

].

Tom Ginsburg:

Oh, now there I have to take issue. I wrote a book about Trump in 2017, talking about what a danger he was to democracy. I never voted for the guy.

Barbara Comstock:

Me either.

Tom Ginsburg:

So I’m not [inaudible

].

Barbara Comstock:

Me either. Yeah, we’re we’re in a unity. I, you know, when I said but we can’t keep appeasing him. Republicans are appeasing him, but we can’t now say, “Oh, we’re afraid he’s gonna cause violence, so we can’t indict him.” I think we can’t do that, I mean, because that could be. Listen, any mobster could, you know, say, “Hey, I’m gonna send my, my guys against you. You can’t go after the mob.” I mean that’s, you know, this is, you know, he’s he’s behaving [inaudible

].

John Donvan:

Do, do, do either of you want to see Trump go to jail for, for what’s happened?

Tom Ginsburg:

Oh, I would love it if I thought it was really likely to happen. I would think that would be great.

Barbara Comstock:

Yeah, I, I think he should be treated, just as Merrick Garland said, as any other person’s who’s committed the crimes that he’s committed would be treated. And I think when you look at if Mark Meadows and Mike Flynn and these other people are going to lose their livelihoods, lose their bar licenses, they’re going to be indicted on things, I certainly think um he should too. And you know, whatever uh consequences, certainly I think Steve Bannon will be going to jail. Um but you also have a situation where like with Mark Meadows, he’s got to decide uh, you know, he has a situation where he and his wife voted mysteriously, oddly from a trailer park in North Carolina, which it does not appear they lived in. So his wife might have some legal problems as well as him and so what does Mark do? Does he let his? Is he gonna fall on the sword or let his wife also fall on the sword to protect Donald Trump? Or is he maybe gonna talk? I imagine Pat Cipollone is gonna have a lot of information about what Mark Meadows did. So now what is Mark? So you have [inaudible

].

John Donvan:

So, so but Bar, but Barbara just to my question, is it, is your goal to see him go to jail or is your goal to keep him from ever being able to run again or both?

Barbara Comstock:

My goal is that justice is served. And I think it is important for, I mean, I’m a former Justice Department official too. And so how he subverted that Justice Department and what he did to those senior Justice Department officials and what they had to do to stop him from subver- and, and his.

John Donvan:

But I come back to my question. Do you want to see him doing time or do you just want to get him out of the picture?

Barbara Comstock:

Yes, I, I think he should do whatever time is appropriate for what crimes he would be found guilty of as would any other person who’s found guilty of the same crimes. I, I don’t think he should be above the law or below, whatever, you know, we just saw a guy who got seven years. And his daughters came out and said, “How come the guy, you know, who, who inspired all this and sent them up there, isn’t being held accountable?” She’s exactly right. That’s what all the police officers, capital police that I talked to, want to know. You know, we got, you know beaten up and did all this. How come the guy who sent the mob to do this to us is not being held accountable? It’s a, it’s just pure legal accountability and I think Merrick Garland is on the right path here that he has to be legally accountable in the same way as any other citizen.

John Donvan:

Tom you’re, you’re a historian of, of politics and constitutions globally and, and I’m thinking back to, to the pardon that Richard Nixon was given after Watergate. You know, he avoided prosecution ’cause his vice president became president and pardoned him, Gerald Ford. And Ford said at the time, and I’m gonna, I’m gonna quote on it that he, he issued the pardon because he wanted to change our national focus. He said to continue to, to focus on Watergate and to prosecute Nixon would, I’m quoting again, “needlessly, we would be needlessly diverted from meeting our challenges if we as a people were to remain sharply divided over whether to indict and bring to trial and punish a former president who is already condemned to suffer long and deeply in the shame and disgrace brought upon the office he held.” He was kind of making a case that, you know, the best way to deal with everything that’s happened is to move on.

And I want to hear what you think of that kind of, that, that attitude, which again, President Obama was, was challenged about bringing cases against um CIA agents who under the Bush administration had engaged in torture. And Obama also, you know, kind of said he initially had indicated he considered the torture an outrage, but he ended up ultimately not having his Justice Department bring prosecutions and saying it’s time to, to he said, “I, I, I have a belief that we need to look forward as opposed to looking backwards.” This idea that could also, you could even argue, that the Civil War ended to some degree with that same idea of let’s move forward and, and try to find a way to come together, rather than pick at the wound. I just want to get your take on, on those cases and that message and whether that’s applicable in any way to this conversation now.

Tom Ginsburg:

Well, first of all, I think it’s an absolutely inherent feature that we see over and over again in democracies that um there’s political accountability and legal accountability, as I said before. And sometimes, political accountability is sufficient. And you know, legal accountability may therefore become unnecessary. That’s how I would say the CIA, you know, torture ring, um in Guantanamo, which you know by the way, there’s still people sitting in Guantanamo. (laughs) I want to remind people. But you know, by and large, the idea was that well the institutions gonna change and they’re not gonna do it again and we’ve got to move forward rather than have scapegoats. Um Nixon, of course, was pardoned. But he had lost all, you know, political support. So I don’t think we’re in that situation with Donald Trump. He still has too much political support. And so it would be inappropriate to follow the usual rule in democracies, which is you don’t prosecute your predecessors. Um I just think when you have someone who’s a genuine threat to the democracy that maybe there needs to be an exception for that again.

John Donvan:

What’s, what’s behind that principle of don’t prosecute your predecessors? Is that it would look like it was vindictive and political?

Tom Ginsburg:

I think it creates kind of a moral hazard, that once it becomes a norm, you know, that your prior regime gets prosecuted, the stakes of leaving office become too high. And we do have democracies around the world, actually Ukraine uh for most of its democratic life in the last three decades has been one of these. Where whenever a new faction comes in power, they go after the prior one with every tool they’ve got, corruption, you know, prosecutions, impeachments. And you know, in that kind of context, politics, it has such high stakes that no one is willing to give up power. And that actually makes democracy impossible, if you think about it. In democracies we need the stakes of office to be high but not too high. We need them to be high enough that people care, but not so high that people aren’t willing to give up power, because they’re entire, you know, government and, you know, millions of people depend on them staying in power.

John Donvan:

I’m John Donvan. This is Intelligence Squared US. More of our conversation when we return.

Welcome back to Intelligence Squared US. Let’s get back to our debate.

And I’m, I’m looking at cases like eh, you know, Israel, a place where I’ve lived and reported from, has put presidents away and put presidents in jail uh after their terms and prime ministers. And Italy has um sentenced a prime minister who ultimately got out on appeal. And in France, President Sarkozy, again, convicted um for, for uh essentially obstruction of uh justice. And those are pretty thriving democracies that have in fact punished uh previous office holders and, and they’ve survived. So how do those process?

Tom Ginsburg:

Well, that’s true. It’s not the norm in those cases, but um you know, they have of course gone after, I think, the Israeli president was an actual rapist. Um you know, and they, you have minor corruption things do get prosecuted. So you know, I’m just explaining that the general norm is not to do that when you have major serious, you know, crimes. And so that’s also I think ties into political accountability. When the person’s been, you know, suffered some political loss then you know they’re out of office. The people have spoken. I think we need to get to a place in this country where the people have decisively rejected uh the violence and the attacks on institutions, which Donald Trump has represented. And that is going to require at some point saying, “We’re not gonna go back and re-litigate this.” I mean, he is the one who is trying to keep the 2020 election, you know, (laughs) alive.

John Donvan:

Interesting point.

Tom Ginsburg:

The rest of us, Republican and Democrat, I think are ready to move on, but you know, again there has to be [inaudible

].

Barbara Comstock:

Well, and that’s why I think the, the, the power of the prosecution, which I do obviously the Justice Department has to have the facts and the information, which I do think they have, will be that it’s not going to be the current administration prosecuting him. I, I think it might now be a bad idea to put a, you know, special prosecutor in there. Make it a Republican. It’s going to be a full on Republican witness prosecution. You do not need to have a single uh Democrat witness in there. It’s pretty much going to everybody who was sitting in there, who voted for Donald Trump, who was there, who believed in them, pretty much up until January 6th, they were on the team. Uh or certainly, you know, through election day.

So the idea of being famous or incendiary is, you know, that should shield you from justice um really, you know, goes against everything of the American justice system. And I, I that’s I, I think that the things that went on at the Justice Department so offend me as a, as a former uh you know official there. I just think prosecuting sort of these foot soldiers of Donald Trump who now he promises to pardon, you know, says he’s probably going to pardon, is just, would just be partial justice for this really vial assault on our whole American democracy.

And for the ring leader to never be indicted or held accountable would say that, you know, the voters, you know, we’re the ones who decide who gets to decide elections and that no one is above the law and that this man, who still to this day is, I mean, all these election deniers that he’s not trying to get into the secretary of state position. So next time, when he runs, he can, he doesn’t have to have the votes. He can, he can say, you know, and that he’s kind of frightening things, you know, the reason we have a judicial system is so that you can’t misuse, you know, uh you can’t violate things in such a way. And so I, I do think it’ll demonstrate, you know, I think the LA Times, I think in an editorial said the bedrock principles of our legal judicial system [inaudible

].

John Donvan:

Is it, is?

Barbara Comstock:

So unprecedented. This isn’t like Nixon did go away. And you had, you know, a you know very a lot of Republican officials who said, “Go away.” But unfortunately, you have, just last week, he’s making a speech where he said he won. Um he continues to make that speech everyday and unfortunately this lie that he continues to make we all know is provably false and the only way we get to that, now the committee is what brings people in they also under oath, “Yes, that’s false. We know we told him that.” Then they go back out and they say it on Fox News or everywhere else. You know, you have these people who go back to lying after they tell the committee. Now you got to bring them in in front of a judge, they can, they’ll have to tell the truth there and I honestly think in front of a DC jury with all Republican witnesses under oath, I just as it wasn’t that hard with Steve Bannon, it took a couple uh hours, I think it’s gonna actually be pretty easy with Donald Trump.

John Donvan:

Is it clear cut um that indictment and conviction would put him in a position of not being able to run again? Is the, is the law absolutely clear that there’s an avenue to that?

Tom Ginsburg:

No. Let me jump in here. Um you can run while you’re in jail, you can even, you know, be elected while in jail. So it doesn’t stop him. The, the criteria for running for office are given in the Constitution and they’re exclusive there, age and such. Now, there is a provision in the Constitution in the 14th amendment, that was passed after the Civil War, allowing for disqualification for people who violated their oaths. And there was a handful, not very many, uh prosecutions after the Civil War before Congress let the statute lapse.

Um that unfortunately does require a stature which at least that’s the [inaudible

] from the 19th century, which you know there currently is not one, so that’s a route to disqualify him. I’d like to add that even if he was disqualified, there’s nothing preventing him from coming back to the White House. He could have Ivanka run for president and he would be, you know, sit in the Oval Office as the senior advisor or something like that, that you know, grand poobah with no official title. He could show up and do all his rallies, even if he was disqualified. So this is what I’m saying that there’s no legal way to get rid of Donald Trump. I also don’t think there’s a legal way to get rid of the QAnoners and the, you know, the conspiracy theorists who are taking over our, our state, secretary’s of state positions and trying to do so in places like Arizona.

The fact is, even if Trump is convicted, that movement is still there. And um it’s basically an antidemocratic movement. It’s a defection on democracy by elements of the Republican party.

John Donvan:

Barbara, wh- what would be the impact of an indictment on the Republican party itself? How would that play out?

Barbara Comstock:

[inaudible

] I will agree with Tom that the legal ways are not, you know, that is not only way to do it. I agree him that there needs to be, you know, there needs to be more Liz Cheneys and Adam Zinzingers and there need to be more people standing up. I believe this legal route needs to be done, because no one should be above the law and this would be a horrible example to set that no you can’t impeach a criminal president who engages in these activities. You can’t that basically if you’re a pres- if you’re a president, particularly, hey if you’re a president and you run for a second term with no nothing buffering you worrying about re-election you can basically go on a crime spree. I think that’s a pretty dangerous uh message to send. So I think for anybody who respects, you know, the rule of law and our democracy that you have to pursue this just for that reason alone. I still do think, and I still am very active on the political front, to stop these anti-democratic efforts that are going on in the state level. And I do think um that many of these candidates that Donald Trump has endorsed and have unfortunately preceded through the primaries that will be brought down, that they will lose.

We’re already seeing them trail in a year where they should be pretty easily, you know.

John Donvan:

But, but are you, are you saying that an indictment of, of Trump would be good for the Republican party in the long run?

Barbara Comstock:

Well, I certainly think the cancer that is Donald Trump is continuing to hurt the, the party. And until but, but the party, the cancer that is Donald Trump goes beyond Trump, as we see with a Kari Lake and these other ridiculous people that have just, you know, come out and it goes beyond him now. And I think all of that um needs to be kind of gutted um in the party. And so that’s a, a much bigger problem that yes goes beyond Donald Trump.

John Donvan:

And Tom as, as Barbara’s pointing out there, one benefit of a legal proceeding a trial would be more information would come out. I mean, there’s, the story is still not entirely told. And the opportunity to subpoena more people um and, and to uh to get access to more documents and information would at least serve historically to tell us exactly what happened or closer to exactly what happened.

Barbara Comstock:

The money story has not been told. There’s lots more follow the money aspects to this story that um, because people are resisting that. And I think the Justice Department really can get to the bottom of that and that will break open, I think, a whole new chapter of this.

John Donvan:

What do you think on that Tom?

Tom Ginsburg:

Yeah. Well, Barbara and I are in agreement in if th- you know, if we were, if, if I was as confident as she that it conviction would be uh obtained, I’d be with her. I’m just not, so that’s just a kind of compirical uh difference. But I guess I’d like to go back and say, “Well, what do you, what about uh the situation where he gets indicted, gets a whole bunch more attention, Fox News is forced to cover him again, and he actually makes a come back because of the trial if he ends up winning it?” That seems to me a really high risk for the country.

Barbara Comstock:

Well, I don’t think you can make the decision based on him running. Um for one thing, if he runs again, the RNC said they’ll stop paying his legal bills, so there’s that. (laughs) um and I, I, I and I don’t mean to at all say that I think in an a conviction is easy. I do, I, I understand it’s challenging and obviously it has to be unanimous. But I do think there is already uh so much overwhelming evidence and I do think there’s opportunity on just from what we know to get so much more if you were able to flip some of these witnesses, which I do think they can because.

John Donvan:

But Barbara, I, I, I, I found something very interesting in Tom’s question, which was the possibility that the platform of being on a trial per- going to trial, particularly if he loses, uh could, could have the benefit for Trump of giving him new oxygen on the political landscape.

Barbara Comstock:

I, I [inaudible

] that, because I think you have too many ambitious Republicans who would be happy to see him go and.

John Donvan:

But what about, but what about his base? What about the people who love him?

Barbara Comstock:

Well, they’ve already, look, you look at some of these polls and Ron DeSantis, who I’m no big fan of, but he’s already eclipsing him in some of these early polls. And what you’re seeing is, you’re seeing some of these people saying, you know what, the baggage is getting a little too heavy to carry. I can get Trump without, I can Trumpism without Trump. Now I’m telling you that as a fan, I’m not a fan of Trumpism. But these people who think they can get some of that, they can scratch that itch without his baggage, they can find other people now. I don’t like that. I’d like to rid the party of Trumpism, but I’m saying there, there’s, you know, if Fox News is ready to move on, if you have Laura Ingram, you know, Trump’s complaining Sean Hannity doesn’t return his phone calls anymore. So yes, he’s still trying to ensight the base, but you know, politics they forget you real quickly. Donald Trump’s is finding that out. He doesn’t have his Twitter account. His Truth social just isn’t packing the punch. (laughs)

Tom Ginsburg:

Yeah.

Barbara Comstock:

And they forget you real. He doesn’t understand, ’cause he wasn’t a politician very long. But for those of us who’ve been around politics a little bit longer, they forget you real quickly and it’s “What have you done for me lately?” And uh people move on real fast and an indictment and a trial they can, they can find other people to uh take care of them. And the go- the governors and people out there who are doing and solving their problems and taking care, you know, solving real problems that people have in their lives. They want to hear about their future, not Donald Trump’s past grievances.

John Donvan:

All right, so let me, let me bring it back to Tom. It’s just, I’m hearing from Barbara just a far more, I don’t know if optimistic is the word, but, but, but uh believes in a scenario in which a lot of the things that you’re, you’re concerned about, I think she acknowledges that they’re legitimate concerns. She just doesn’t think it’s going to turn out that way. Um and um wh- where are (laughs) have you, have you been persuaded at all or, or of course soothed in any way by hearing her take on it.

Tom Ginsburg:

No. Let me just say, I, Barbara, I hope you run for Congress again. I’ll be the first to contribute to your campaign.

Barbara Comstock:

Oh no, I’m done. (laughs)

Tom Ginsburg:

But you know, we obviously need uh people in the Republican party like you. We need you to be the center of it. Unfortunately, Barbara’s not the center of the Republican party. Look at what’s happening in some of the states and, you know, totally independent of Trump. You know, they’re the strong partisan Jerry Manders which are now allowed. Now Democrats have done that too. I don’t want to say that’s a single, you know, party problem. Um the escalation of political tactics like happen in North Carolina after uh the governor’s race in 2016, where the party tried to remove most of the powers of governor after they lost that office. You’re seeing a hardball, an escalation in political tactics, which in my view, as an independent, you know, I think is asymmetric. I think it’s the Republicans who are driving that escalation. And that’s what, where you get the defection on democracy, when you demonize the other side so much that you think every election is an existential fight and you’d rather have a civil war than uh than, you know, let the other guy take office. You know, that’s rhetoric that I think we’re seeing now on both parties. We got to get rid of that. How do we do that?

To me, the Republicans are well down that road. And um getting rid of Trump is neither here nor there for that.

John Donvan:

Merrick Garland, the attorney general, is under pressure particularly from the progressive wing of the Democratic party, but not just there. Uh to get moving on this, and he’s really, really uh speaking cautiously in taking his time. Are you impatient for him to do something about this in terms of indictment?

Barbara Comstock:

No, I think he has to be very careful and, and I do think um in particularly if, you know, Congress changes hands, I mean, perhaps want to cons- ’cause I, I think it might be wise on both the cases of Hunter Biden and, and Donald Trump, he might want to consider a special council. Bill Barr recently said he should do it for Hunter Biden. I think it might not be bad to put this in the hands of a special council. Um so I, I think it’s been uh wise to do this carefully.

I think the committee has kicked it into gear and I think the committee, and I do, I, you know, Liz Cheney’s a great friend. And I think she has been able to pull some of these guys, and it’s they guys who had to be, you know, come kicking and screaming s- because she, you know, she knew where the bodies were buried. She knew this Trump administration. She was able to drag them and make them talk, because they had already talked to a lot of people in the books anonymously, so she got them to talk and God bless these young women who came forward. You know, again under threats and from the Trump world. That they came forward and their testimony has just, you know, um been documented and fortified with records and, and others who’ve uh come forward and as the committee has said, people are coming forward every day. So I think when you the committee can shine that sunlight that kind of drags people out of corners. I don’t think you woulda had a Cassidy Hutchison kind of have the courage to come forward if you didn’t have the courage of Liz Cheney that was kind of contagious to bring a Cassidy forward.

And the grand jury calls in Cassidy. Now they’re calling in uh Pat Cipollone, so this grand jury is kicking into gear. And now Mark Meadows has to decide, “Gee, what do I do with my wife’s problems and my problems and all these emails and texts that I’ve got? And do I really want to g- fall on my sword for this guy?” And so I think this starts to uh kick uh I, I think, you know, Merrick Garland’s moving along, but I credit him with taking it, you know, it always takes longer at the Justice Department than, you know, people when I was there, people always complained it never goes fast enough. I get it.

John Donvan:

Well I, I, I hear people saying that his, that his, that the pace that which he’s moving indicates oh no, he’s not gonna do it. He’s not gonna indict. You don’t buy that at all?

Barbara Comstock:

No. I, I don’t. And I don’t think that um, you know, y- people form the outside, you know, they don’t know what’s necessarily going on. And I do think both the committee and what the Justice Department’s doing, they’re complimentary um. There’s things that justices doing probably that the committee doesn’t know and vice versa. But now it’s all coming together. And I think that will accelerate the process and that’s why I feel like they’re um it, it there will be indictments and should be and I think that will lead to uh presidential indictment and should.

John Donvan:

Well, I, I, I don’t like to say at the end of a debate, “We’ll see.” But in this case, we’ll see. The choice is on indict or don’t indict and one of those things is gonna be the outcome. W- we’ll look forward to seeing what that is. But I want to say to you, Barbara Comstock, and you, Tom Ginsburg, you have given us a lot to think about um and uh also that we at Intelligence Squared appreciate hearing two people disagree with one another with respect and civility and you both did that tremendously well. So thank you for taking part in this program with us.

Thank you for tuning into this episode of Intelligence Squared, made possible by a generous grant from the Laura and Gary Lauder Venture Philanthropy fund. As a non-profit, our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you, the Rosenkranz Foundation, and friends of Intelligence Squared. Robert Rosenkranz is our chairman, Clea Conner is CEO, David Ariosto is head of editorial, Julia Melfi, Shay O’Merra, and Marlette [inaudible

] are our producers, Damon Whittemore is our radio producer, and I’m your host, John Donvan. We’ll see you next time.