STEVE INSKEEP, HOST:
Today, a House committee votes on whether to send the Justice Department evidence of crimes linked with the January 6, 2021, attack on the U.S. Capitol. A source familiar with the deliberations says they will take up a criminal referral against former President Trump on at least three different charges. That's one more than previously known. Representative Adam Schiff told NPR earlier this month he thought the evidence is there.
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ADAM SCHIFF: The facts support a potential charge against the former president. And, you know, the Justice Department, in my view, needs to hold everyone equally responsible before the law, and that includes former presidents when they engage in criminality.
INSKEEP: Schiff added that it is a political as well as a legal decision for Congress to make this statement. Let's talk it through with Kim Wehle, a former federal prosecutor, now visiting professor of law at American University and the author of "How To Read The Constitution And Why."
Kim, good morning. We might need the Constitution before we're done with this, I think.
KIM WEHLE: The Constitution is squarely on the table this week, yes, Steve.
INSKEEP: Well, let's talk through the charges. Our colleague Claudia Grisales hears that three charges will be voted on. We don't know that they'll be voted up, but we would expect so. The three charges are conspiracy, obstruction of an official proceeding - we'd heard of those two - and now insurrection is on the table, a serious charge. What would that charge be about?
WEHLE: So the conspiracy to defraud the U.S. and obstruction of an official proceeding - those relate to efforts prior to January 6, in part, to drum up fake electors and persuade Mike Pence to not do his job. The insurrection is about what happened in the day on the Capitol, and it includes assisting in a rebellion against the authority of the United States. So it doesn't require that Donald Trump actually have entered the Capitol, which reportedly he had interest in doing, but an assistance in that effort could suffice.
INSKEEP: I'm interested in the concept that a sitting president, someone still in office, could be accused of insurrection against the United States government that it's the head of. I guess this is a reminder - isn't it? - that the government is not about one person ever. It's about the Constitution and the law. He is not the government, even when he's in that office.
WEHLE: Listen; he's made that argument. He made that argument, you know, in the various impeachment hearings. He's made it in court in various, you know, flavors of complete absolute immunity. He's not a king. We don't have a monarchy here. And, you know, trying to overthrow the United States Congress does qualify, notwithstanding, that he was a sitting president in that moment. Although, you know, if he is charged, we'll probably hear some kind of argument along those lines made in court.
INSKEEP: Is there a different legal significance to this specific charge of insurrection as compared to the other ones?
WEHLE: I think so because the 14th Amendment - Section 3 of the 14th Amendment - a post-Civil War amendment that was designed to keep Confederates out of the government, makes it against the Constitution to hold office if you engaged in an insurrection. And we know the House introduced, I think, Thursday a bill that would tie Donald Trump to the Constitution in that regard with the aim of keeping him off the ballot for any federal office moving forward.
INSKEEP: This is a bill introduced Thursday, so it would have to be passed in the next few days. They would have to start all over again in a Republican House in order to get this done in the future. Is that right?
WEHLE: Right. It's unlikely. I mean, there is a statute from 1870, but there are sort of clunky elements of it. So I think the idea is just do a clean bill that makes clear that this kind of thing does qualify in 2022 to keep people out of office.
INSKEEP: Can you talk me through what happens next? So there's this criminal referral, which gets voted on today. Let's assume - let's suppose, rather - that the House committee votes to refer these charges to the Justice Department. They have acknowledged to us their thinking about the law but also thinking about politics - what makes the most political sense for the country as to whether to do this. Then they hand it over to the Justice Department, where it seems to me that the law and politics are in play again. How does the Justice Department conduct an investigation in a way that could reassure people that it is not deliberately political, that it is strictly about the law?
WEHLE: Well, I think what's happening this week with this report, this bipartisan report, is kind of a triumph for the rule of law and for government functioning, that this actually happened in these days. You know, the Justice Department will continue its work with a grand jury privately, confidentially, will have public transcripts, though, available both to potential defendants and witnesses and the Justice Department of what many of these people have already said. That's unusual.
But at the end of the day, this is about, on the one hand, political conflicts of interest and, on the other hand, the rule of law and the potential for political violence moving forward, which - the November ABC-Washington Post poll said 88% of Americans are worried about increased political violence. We need to shore up the structure of the Constitution and make it clear that this kind of thing is not OK. There are consequences for these kinds of abuses because retaining the integrity of the office itself is more important.
INSKEEP: Is Congress likely to change any of the rules applying to the president or to elections?
WEHLE: Well, there's talk of amending the Electoral Count Act - again, a very old statute - to clarify that the constitutional role of the vice president is ministerial and that the states cannot, at the last minute, snatch election results from the people and nor can the U.S. Congress and nor can the vice president of the United States. Clarifying that, pinning that down would go a long way to avoiding a successful January 6 moving forward.
INSKEEP: Kim Wehle of American University. Thanks so much.
WEHLE: Thank you, Steve. Transcript provided by NPR, Copyright NPR.
