The Politics Of Prosecuting Trump 49:26

You're a podcast listener, and this is a podcast ad. Reach great listeners like yourself with podcast advertising from Lipson Ads. Choose from hundreds of top podcasts offering host endorsements, or run a reproduced ad like this one across thousands of shows to reach your target audience with Lipson Ads. Go to LipsonAds.com now. That's L-I-B-S-Y-N-Ads.com.

Oh, yeah. Happy birthday, Kaylee. Kaylee, happy birthday. Thank you. And you didn't, you so far haven't gotten the one thing you wanted, which is really inconsiderate of the committee. I just want this report. It's all the women asked for, just a congressional report. Thank you.

Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. After 18 months of investigation, the House January 6th Committee has, uh, oh wait, it still has not released its final report. We were expecting it to come out on Wednesday. It is now Thursday afternoon. For scheduling reasons, we got to go ahead and record this podcast. I'll

I'll say we already have the over 100 page executive summary of the report. Of course, the House committee also voted to refer former President Trump to the Department of Justice for four criminal charges, including inciting insurrection, conspiracy to defraud the United States and obstruction of an act of Congress. The committee also referred five allies of the former president to the department and

And I think we have enough to discuss. It is Kaylee's birthday. Happy birthday, Kaylee, to you. Thank you. You're also trying to avoid a snowstorm. The snow is piling up where I am right now. So we have to go ahead and record. If, folks, you have the final report by the time you are listening to this, all of this should still stand. If we miss anything really juicy, feel free to get in touch with us. But I think we have enough information.

Do you guys feel comfortable? It's quarter past two on Thursday. The holidays are quickly approaching. Should we go ahead and just do this? I think we got to. I mean, I still have lots to talk about when it comes to January 6th. I could talk all day, so. Fabulous. Okay, so the voices you are hearing, of course, are tech and politics reporter Kaylee Rogers. Hello, Kaylee. Happy birthday. Hi, Galen. Thank you. I know that you wanted this report for your birthday, and-

I'm sorry that we don't have it by now, but maybe ask Santa and Santa will bring it by Sunday. I know that's like kind of a joke, like, huh, Kaylee wanted this report. I really would have liked to have had this report to read today. I am disappointed. Yeah.

Sometimes you don't get what you want. I mean, amen. This is the being in your 30s. Lessons with Kaylee Rogers. Sometimes you don't get what you want. Do we know why? I heard yesterday some speculation about there being a printer problem, but of course...

We should say there's a lot going on in Washington right now. So President of Ukraine, Vladimir Zelensky, was, you know, addressed Congress yesterday. They're still working on this, what is it, $1.7 trillion omnibus spending bill. There's a storm coming. They're trying to do that before all of their flights get canceled. So maybe January 6th is getting caught up in all of this. I don't know. What have you heard, Kayleigh?

I read the same thing about a printer issue. I think probably more likely it's all everything going on in Washington. There's some slightly more pressing things than getting this large report out. And so it'll come, but it's maybe not priority number one, understandably. And of course, also here with us, Amelia Thompson DeVoe, senior writer here at FiveThirty and also legal reporter. Welcome to the podcast.

Thank you. Yeah, I'll just say I don't understand the printing issue excuse at all because we live in an era of PDFs. Like who is getting a printed copy of this that needed it? Right? Am I missing something? Yeah. Like were they going to mail me a printed copy and I didn't know? Were they printing a copy for Kaylee's birthday? And it just got held up. Do they think that they have to print it onto the website? Maybe there's a misunderstanding of how the internet works. Yeah.

Well, if that's the problem, then we're never going to get it. You know how they print out the budget and carry it into Congress or into committee? It almost looks like one of those red wagons that you ride in as a child. Maybe it can't be formally what...

into the record? I don't know. Why? I don't know why you need it printed. Amelia, great question. But we... It's just your resident millennial here saying, give us a PDF. That's all we want. Or just make it a TikTok. I mean, here's your Gen Z representative. Just make it a TikTok. Oh, God.

As folks can tell, we're already in a holiday mood. I know this is serious stuff, so we will now put our serious hats on and get to it. You're still allowed to crack jokes, but let's talk about the January 6th executive summary, the criminal referrals to the Department of Justice. We also, there were some transcripts put out this morning of 34 people

interviews that were conducted by the select committee. So we have a lot of information, and presumably the stuff that they put in the executive summary is the most important stuff anyway. So Kayleigh, what did we learn so far this week that is new, that we did not already know from the public hearings that the committee held?

I mean, really, the new things that we learned this week were those referrals to the Department of Justice and to the House Ethics Committee. That's what's new that happened. Out of the executive summary and even some of the transcripts that we've gotten so far,

There are new bits. It's not anything that I've come across that's super revealing that they, you know, neglected to include in the hearings. But it's fleshing out all of that work that they did throughout the summer through these many hearings, telling the story and weaving together all of the information that they collected. And then this is just sort of the complete picture, all of the little details to fill that all in. The general takeaway is that same narrative that they were crafting throughout the summer, focusing on Trump,

his actions, what he knew, when he knew it, you know, in classic hearing terminology and his role in all of this. That was really kind of the major focus of the hearings. And it sounds like that's going to be also a major focus of the actual report itself.

I know that there was some criticism aired in the press from folks actually even working on the committee. And the criticism was directed at Liz Cheney for focusing too much of the committee's work and the report itself on Trump himself and not also focusing on domestic extremism or the actual security situation at the Capitol on January 6th. Should we expect...

those issues to be addressed in the final report? Or do we have any answers on those issues so far? I mean, I saw some reporting saying that that was going to be covered, but in the appendices, interesting. So they were going to have stuff about law enforcement and intelligence and readiness in one appendix. Another one was going to be about some of those more, you know, extremist groups and the threat of domestic violence, extremism with the

some of the far-right groups that were involved in that day. The bulk of the actual report itself, the meat of it, is, again, focused on Trump, which is what we saw in those hearings. So

I think it's a fair criticism. If you are interested in hearing more about the intelligence failings, the lack of police readiness, what Congress could or couldn't have done ahead of time, that doesn't seem to have been a big focus of this investigation. The main thing was Trump and his immediate circle and kind of rippling out from there. It seems like to build this case for these referrals that they put forward to the Department of Justice, there are going to be

recommendations from the committee about legislative things that could happen to try to prevent something like this from happening again, you know, bills that they think should be passed, that kind of thing. But it does seem like a lot of the effort was directed at Trump and trying to build this case around, you know, laws that they believe he broke.

Amelia, what was your takeaway from the executive summary? Like, what kinds of questions did they set out to answer? And did they successfully answer them in the course of these 18 months? I don't know if I like I'm not the one who can say if they successfully answered them, because this is, you know, this is a political endeavor. Congress's ambit here is that they are doing oversight of the executive branch and they're

They investigated the former president's conduct. And I think, you know, we've already started to kind of get an answer to your question of whether it was successful just in the reception of the evidence that they've already presented in the case that they've been building over many, many months.

I mean, I think what they were trying to figure out, as Kayleigh was saying, is what exactly Trump was doing and what laws may have been broken. And it's really interesting to see this unfolding in a congressional committee setting because

Because I'm sure we'll talk about this, but their criminal referrals do not have the weight of law. The Department of Justice does not have to do what they say. And there's a lot of information that they weren't able to get because they don't have the same kind of

power as a prosecutor. And so, you know, they're just, they're a kind of different body here. And the thing that they were able to do was unspool all of this in real time and make a case using all of the kind of media at their disposal, that this is what we found and this is what it means. And

And now I guess you could think about success in a couple different ways. You could think about, okay, well, does DOJ actually take this case they've built and do something with it? We should presumably see...

I mean, not immediately, but I would guess at some point in 2023, maybe even the first half of 2023, what is happening because Department of Justice is investigating and they're going to want to move forward on that before we get too deep into 2024. And then also, what is the political ramification of this for Trump and how much does this actually mean for his political future as we move into the next presidential cycle?

I'm monitoring my phone for news alerts as we go. I just got one. It's that the Senate passed a $1.7 trillion spending package to avert a government shutdown. So we still do not have the report. So let's continue on the train run. Amelia.

In terms of the Department of Justice's response to these criminal referrals, like what is the history of a criminal referral? And so it doesn't have the weight of law, of course. It's basically Congress saying, hey, we uncovered some evidence while we were, you know, going through this process. You might want to take a look at it because we think there's criminal wrongdoing here. You know, what's your expectation at this point in terms of, you know, all four of those potential charges?

I'd be pretty surprised if we see Trump getting charged with everything the committee has laid out. I mean, I'm curious to hear Kayleigh's take on this. But I think it is something that the Department of Justice will likely take seriously. I mean, they already have this investigation going. And a few days after President Trump announced that he was running for reelection once again, Attorney General Merrick Garland announced that this

probe and also a separate one involving Trump's potential mishandling of classified documents would be overseen by a special counsel. You know, another like throwback to the days of Mueller and Mueller talk. Oh, yeah. Mueller talk. My favorite Mueller talk. I know. Yeah. Someone was reminding me about that earlier today. And I was like, yeah, that feels like it was actually a decade ago. What's the special counsel's name? And can we create are we going to create a talk around him?

His name is Jack Smith, so I think we may need to mull on that. Mull. Ha, ha, ha. I didn't even do that on purpose. Sorry, guys. Just a little too much mulled wine this afternoon. I know. I ate a donut right before we did this podcast, and that may have been a mistake. I apologize, listeners. It is Hanukkah, though, so you've got to be eating properly all the time. Happy Hanukkah. I know.

Anyway, so Jack Smith is the special counsel. You know, he, like Mueller, is conducting his investigation in a very different way than the congressional committee has. The prosecutors do not hold big hearings where they present all of their evidence and say, this is the case we're building. So we're not going to know for a bit what DOJ is actually going to do with this information. But, you know, I think it creates...

This whole situation creates kind of a tricky political puzzle for the Department of Justice. And this was really always going to be the case. You know, this is a Democratic-controlled body of Congress investigating a former Republican president. This was always going to be political. But, you know, there's a situation now where...

This whole case has been laid out very publicly against Trump, and it's been formally sent to the Department of Justice. And Congress is saying, OK, we found all this stuff. Now you do something about it, law enforcement. And so on the one hand, that is clear fodder for people who want to say that anything the Department of Justice does in terms of charging Trump or his allies is politically motivated because

Democrats in Congress literally told the Department of Justice what to do. I mean, whether they actually do that, you know, they have their own process, they're going to do this in their own way. So in that sense, you know, hard to say that this isn't tinged with a lot of politics. On the other hand, now people...

people who don't like President Trump and perhaps would like to see him charged are going to have seen this extensive case laid out. They are also the ones who are more likely to have been paying attention to what the January 6th committee has been doing in the first place. And so they will be pretty upset with the Biden administration if the Biden administration doesn't end up taking these steps again. And it's Jack Smith who's making the decisions. Merrick Garland is trying to create kind of a wall of separation, but that's always hard to do.

You know, it's politically sticky and DOJ is going to have to decide where they think the evidence points. Is it also, Amelia, correct me if I'm wrong, but the DOJ has kind of a unique set of considerations it has to take into account where like not only does it have to look at the evidence of whether or not it believes a crime was committed, but also like

What is best for the country to a certain extent? I'm thinking of like the days of Spiro Agnew and like they decided rather than charging him, it was better if everyone could just kind of made a handshake deal and he stepped down. Like there's a certain precedent when you're dealing with former presidents or vice presidents or, you know, high officials. You don't treat them the same way you would some of these individuals who've been charged for their role in January 6th already.

Yeah, it's going to be a really interesting question how DOJ handles this, because obviously while Trump was president, it was also unclear whether he could actually be charged. It seemed like everyone mostly agreed the answer was no. Now he's no longer the president. Some of these charges carry a

penalty that could involve him being barred from ever holding office again. So, you know, you want to ratchet the stakes up even more. There you go. I mean, there's nothing that formally says DOJ has to take those kinds of considerations into their decision making about political officials. And I think some people would argue that no, you know,

If a political official has broken the law, then they need to be charged. But certainly, I mean, I cannot imagine that this is not the calculus about the politics of all of this. Also, what it would mean to charge Trump and then to not convict him, I think, has to be something else that's going through prosecutors' minds. So not just about the strength of the evidence, but whether the evidence is overwhelmingly pointing in that direction. Yeah.

There's a lot they'll be thinking about. This is not an easy charging decision for sure. Yeah, I think, you know, I'm not a lawyer. What I've seen doesn't reach that level of overwhelming evidence of anything. I think the most damning parts of...

The investigation and the hearings that we had when it comes to Trump was all of the stuff he almost did or like tried to do that really would have crossed a line. You know, so if Vice President Pence had tried to stop the counting in some way, which he legally couldn't do, but if he had tried to based on the urging of the president, I think that would have crossed a very serious line. If he had installed Jeff Clark as head of the DOJ,

that would have crossed a very serious line. Those things didn't happen. You know, he kind of tiptoed up to the edge of a lot of things and didn't cross those lines. And what he did do, I think, is a little murkier. You know, he gave a speech and he sent a tweet and he made a phone call. You know, it's all these things that I think is a little harder. There hasn't been a smoking gun of the caliber that I think you would need to...

make something like this palatable and successful in a court of law. That said, you know, the DOJ has been doing their own investigation. They could have all kinds of stuff that obviously I don't know about and that hasn't been part of the hearings.

And now they'll have access to all of the work that the committee did because they were kind of holding on to that until they were finished their investigation. Now they're going to send that to the DOJ to go through as well. So who knows? We'll have to wait and see what they can uncover on their own as well.

Yeah, I mean, I think you're both bringing up two really important considerations here, which is one from a democratic norms perspective, prosecuting political opposition is always a slippery slope. How no matter how warranted it may be, because you essentially should expect that someday you won't be in power again. And those that same political party might prosecute.

you know, the political opposition in turn, again, whether it's warranted or not. So there's, from a norm's perspective, it's super tricky. But then also from a nuts and bolts of the legal argument, it's also tricky. And I'll just read a quote from this Atlantic article out recently from Alan Rosenstein and Jed Sugarman. It's titled, "'The prosecution of Trump runs into some serious First Amendment troubles, but they are surmountable if the government takes into account his other actions on January 6th, 2021.'"

And here's what they say. A congressional criminal referral of a former president is unprecedented. And if special counsel Jack Smith and the Department of Justice decide to prosecute Trump, they will have to address a formidable defense that Trump's speech on January 6th, no matter how irresponsible or how full of lies about a stolen 2020 election was after all a political speech and thus protected by the First Amendment. So I think that's kind of what you're talking about, Kayleigh, which is like.

where is the line here between doing something criminal and saying something wildly irresponsible? Well,

Well, and also, I mean, there's another issue that we talked about a lot during the Mueller investigation, which is the question of intent. It's very hard to prove what someone's intent was, especially when they did something like give a speech. And that is just I think that's going to continue to be an issue, too, for for people who do think that Trump should be charged. What what was in his mind? That's very hard to prove.

That is very hard to prove. I will say that the committee definitely seemed to be trying to make that case, especially with

evidence that of the people around him and what they were telling him, the conversations that they had, you know, that there was no evidence of fraud. The election wasn't stolen. Pence can't stop the count, like telling him all this information. Presumably then he understood and knew that when he made that speech. And so while we can't know what he was thinking or intending, we do know what information he already had at that point. He can't claim like, oh, I didn't know. It's pretty clear what he did know because they had the people who told him,

So it sounds like the tricky, difficult, politically and legally fraught considerations will continue into the new year. Happy New Year, everyone. But as you said, Amelia, this is very much also a political process, right? I mean, we shouldn't play dumb. We shouldn't play dumb.

when it comes to the way in which this was presented to the public in prime time, produced by a former colleague of ours, television executive. So this was designed for public consumption to change minds. To what extent has this process succeeded on that level? And maybe there's like a slightly different question, which is, did it change minds? And did it make Trump's re-nomination harder?

It's interesting. I'm not sure about changing minds. My grasp on it is that it reinforced beliefs people had already. And that is to say, you know, people who thought Trump was guilty of, you know, basically inciting an insurrection felt more emboldened in that belief afterwards. People who think he did nothing wrong continue to feel that way. But I think overall the consensus...

or a lot of Americans anyway, you know, have a distaste now. And I think the hearings and kind of keeping that in the news cycle contributed to this with the whole kind of like stop the steal movement as an idea, even if they still love Trump or support him or don't think he did anything wrong or maybe that,

Maybe he didn't act appropriately, but it didn't cross the criminal line. Wherever you kind of land on that spectrum, a lot of Americans are not interested in continuing down that path or having another January 6th or anything close to it. And I think we saw that in the midterms with the rejection of the most hardline election deniers that were running for public office, especially in those positions where they would have had oversight over elections.

Even in states where Republicans were winning other statewide offices, voters were rejecting those candidates. They were more happy to elect Democrats.

you know, members of Congress who maybe voted not to certify on January 6th, but then kind of didn't have much to say about it after the fact. Um, maybe they were okay with that choice and just happy to not have to hear about it anymore. Whatever the reason, it seems as though there's been a pivot away from this idea of, of a stolen election as like a palatable concept. And Trump himself has sort of softened on it, but it's still part of his brand. And, uh,

You know, I think there's a lot of reasons why Trump is a weaker candidate for the Republican nominee this time around. But that's definitely part of it. That's interesting, Kayleigh, because I was just going to say when you said that this just reinforced people's beliefs, I totally agree with that. And, you know, it feels like with Trump, though, we've been through a

a lot of cycles of this. You know, we actually did polling during the first impeachment of Trump showing that people were just getting more and more dug into their beliefs. And so, you know, presumably that's just happened over and over again with all of the many, many things that have made

you know, some people hate Trump even more and other people, you know, reinforce their belief that he's just a victim of the media or, you know, all of the other stuff that he talks about. I do wonder to what extent Republicans will try to respond to what the committee did in the new Congress, because Republicans are getting control of the House back.

And one of the things that they will be able to do, even though their control is pretty narrow, is launch investigations. And there's already been talk about investigating the January 6th committee, investigating the investigation. But anyway, so I think like insofar as that is also a political attempt to make a case about what all of this means,

I'll be curious to see how they do that. And I'm sure we're going to talk a little more about this, but the GOP did release their own encounter report focusing on security lapses. So is that really how they talk about January 6th going forward? I think that actually kind of matters for Trump for the reasons that you were talking about, Kayleigh, because election denialism is such a big part of Trump's brand that

You know, whether emerged sort of distinctly different approaches among Republicans to how they're going to address this issue, which is obviously going to continue to come up as long as Trump is running. I think that's important for Trump. But I don't know that I think this specific committee has made Trump.

a whole lot weaker going into 2024, independent of all the other things that might have. And I do think that even though what you're saying about election deniers,

on the midterm ticket is totally right. Trump does seem like he still holds kind of a different place in the American political sphere than those other candidates. And he commands a lot more power and he has a kind of, you know,

megaphone that none of those people did. So I will be genuinely curious to see how this plays out as we really move into the presidential cycle for real next year.

You're a podcast listener, and this is a podcast ad. Reach great listeners like yourself with podcast advertising from Lipson Ads. Choose from hundreds of top podcasts offering host endorsements, or run a reproduced ad like this one across thousands of shows to reach your target audience with Lipson Ads. Go to LipsonAds.com now. That's L-I-B-S-Y-N-Ads.com.

You've worked hard to build your brand, so why settle for one-size-all fits branded clothing? Lands End Outfitters creates apparel your employees will truly want to wear that unites your team in comfort and style. It's why Lands End Outfitters has been a branded apparel supplier to some of the world's most respected brands for more than 30 years.

From logo polos to fully customized branded wardrobes, our world-class outfitters will partner with you to help your team feel confident on the job and put your brand into action, all backed by above and beyond expertise. See why Land's End Outfitters should be your branded apparel partner. Go to business.landsend.com slash pod20 and use code pod20 for 20% off your first product. That's business.landsend.com slash pod20. Code pod20 for 20% off your first product.

When it comes to how Republicans move forward, I'm curious what we've seen in terms of how they've responded. I believe Trump, you know, Trump has defended himself on Truth Social and essentially said that these kinds of investigations are only making him more powerful because it's riling up his supporters.

We heard from Mitch McConnell basically saying the American public knows who was responsible for January 6th. He hasn't really minced words when it comes to placing blame on former President Trump. But I haven't heard much else from Republicans when it comes to like, of course, when Trump was president, oftentimes lawmakers in the halls of Congress would get asked, you know, look at this tweet. What do you think of this? What do you think of that?

I haven't heard a lot from Republicans like jumping to defend the former president, which to me says something. Yeah, I mean, especially if you compare it with, you know, the defense of Trump that we saw over the summer after there was an FBI raid of Mar-a-Lago and classified documents were seized. Yeah, I think it is an interesting contrast. I don't know, though, how much of that is Republicans just kind of letting go

Yeah, I mean, you know, there was some some response from some of the members of Congress who were referred to the Ethics Committee basically saying, like, this is BS and like just further proof that this was all a political thing.

endeavor by the select committee. That's sort of their stance on it. The whole time, you know, there was more response when the hearings began, kind of brushing them off, saying it's partisan, so basically disregard whatever you hear from them because you can't take it seriously, and we're going to do our own investigation and it'll be the real investigation.

I think the Republican report, while it was like kind of glaringly partisan in their attempt to like blame, you know, Nancy Pelosi for like all of the failings of the Capitol Police. I do think that, you know, taking time and resources to investigate the intelligence and security lapses is a valuable contribution. And maybe when we can find

buying, you know, these two sort of partisan sides, we get a more complete picture of what really was going on that day. But I think that's an important question to be asking. I don't think that that report was useless in any way. I think doing an investigation of the investigation is just kind of

you know, political game playing. And I don't imagine voters would be that interested in it, to be honest. If you weren't interested in the initial investigation, I can't imagine you're going to be glued to your TV over the investigation into the investigation. It's not going to be the same people. Yeah. Right. Right. But I don't, it's not like the people who were glued to the TV for the January 6th committee. Sure. They're not going to be interested in the investigation of the investigation, but you don't think some Republicans would be interested, Kayleigh? No.

I kind of don't know. I think they want to move on from this. It's not a good look for the Republican Party, and they'd rather not talk about it anymore, thanks. Yeah, I mean, also, like, who are you going to find damning evidence against? Liz Cheney and Adam Kinzinger, who are no longer in Congress, or the Democrats that your base already thinks are corrupt? I mean, like, it is an angle, but I have to—

look, I don't know how far we go down this road or how to the extent that we believe this, but like, I'm sure that there are plenty of at least elite Republicans who are like, okay, Democrats, if you can make former President Trump less relevant in our party, you're doing us a favor. There are definitely people in the party who want to move on. And I think we're increasingly seeing that in the polls. I mean, we've talked about the DeSantis Trump polls recently.

Over the past month or so, maybe even more than I think we started talking about them as soon as the midterms were over. They are tied or DeSantis is leading, at least in head to head polling. That is not the case when you give folks the full options of the field. But we have to assume that there is going to be some.

party decides maneuvering going on and trying to winnow the field before voters have the opportunity to, you know, vote on 16 candidates again, like they did in 2016. I'll also say as far as this whole argument goes surrounding, like these investigations of Trump are really amping up

his supporters. We talked about this poll back in August when it came out, but a Politico poll looking at the investigations and how voters were reacting to them at the time found that, you know, a pretty clear plurality, 49% of registered voters said they strongly or somewhat approve of the FBI's search of Mar-a-Lago compared to 37% who disapproved. And that's even when we saw the sort of

Trump response team spring into action and try to spin this as completely politically motivated. And when it comes to whether or not Americans thought President Trump broke the law as president, just period, the broadest question you could ask, it was 58% of Americans, a clear majority who said probably or definitely he

A quarter of Republicans even believe that. And so I think it is a little like it's slightly too cute to say, like, these investigations and the politics surrounding them are really going to motivate our voters. If they didn't this year in an environment where, you know, Biden and the Democrats are in power and they have full control of all levers of Congress, then.

Is it really going to work the next two years? I have to think that Republicans will try to take a different angle on this or maybe just count their blessings that Trump is becoming less popular because we know within the party, because he doesn't seem to be a political winner amongst the people that Republicans most need. I mean, but Trump wasn't on the ballot in November and Trump is running. So...

You know, I don't know. I just think like I completely agree with you that a lot of Republicans, especially elite Republicans, just want to walk away from this and start over with someone else, whether it's DeSantis or another candidate. But.

I don't think it's so easy for them to say, you know, bye-bye, Trump. You're weak now and you're not a winner because there are still Republicans who really like him. Oh, yeah. I feel like they definitely want to hedge their bets here. Like, even if they don't love Trump, they'd rather have him than another four years of Biden or TBD Democratic nominee. Yeah.

Yeah, I don't think that there's a consensus of like, we have to get rid of Trump, we're done with him within the Republican Party at all. So they're going to hedge their bets a little bit like, oh, maybe we can get DeSantis there. If not, we can't have like...

you know, scorched the earth with Trump to the point where we can no longer get behind him. Oh, sure, sure, sure. I don't, look, I don't think that a McCarthy-led House is going to say, you know what, let's continue this special committee. Like, let's continue doing the research that the Democrats are, like, I'm just saying the degree to which this is salient for Republicans in the new year. Like, I think there's a better chance they're holding Republicans

hearings saying that Hunter Biden's relationships with Ukraine were corrupt and therefore Biden is corrupt and you shouldn't trust. Like, I think that's going to be more of a priority than, than trying to like, well, then doing some kind of investigation to say like the, the select committee didn't do it. Oh, they were being political. We already said, we said it for them. We knew that they were being political. There you go. Yeah.

They can do both, guys. They can do both. I just can't imagine it's going to be very compelling even for Republican voters. Right. Well, that's the question is like how much do they see this landing with people and how does that affect the way they frame this? I mean, you know, I think the question of potential DOJ action is interesting, too, because in the polling I've seen and I don't have a specific number in front of me, but the number of people who think that Trump

probably or definitely committed a crime is much higher than the share of people who think he should be indicted. So I think this sort of this question of whether an administration of the opposing party files charges against a former president is something that is much more of a

political hot potato red line to cross whatever metaphor you want to use there. And so I wonder also if Republicans are just kind of waiting to see what

What does DOJ do? Because they will have to do something sooner rather than later because there is a longstanding Department of Justice norm of not wanting to take actions that could influence the outcome of an upcoming election. Yeah. So I wonder if that is just, that's kind of the next shoe to drop. You know, it's not the investigation of the investigation. Yeah, agreed. It's does the Department of Justice charge the president? Because that would stir up, you know, if that happens. Right.

I think Trump will absolutely use that to try to shore himself up within the party. And so maybe that's just what they're thinking about now. Yeah, that definitely makes a lot of sense. It doesn't behoove the Republican Party to keep talking about January 6th. It was a bad day. It was a bad day for the GOP. And they don't want to keep talking about it and drawing attention to it.

I can't imagine that that's something they want to dwell on as they take control of the House. So I totally agree, depending on what the DOJ decides to do, that's going to be their next step. If the DOJ, you know, declines to press any charges against Trump, then they can say, see, look, it was all just partisan nonsense. There's no evidence. Trump did nothing wrong. Let's move on. If they do decide to press charges, then they can say, see, look, it's all partisan. So either way, they've kind of got their name

narrative set up for them. Yeah. Okay. I did not ask you all to prepare for this, but the next time we meet live is going to be in the new year as Republicans take control of the House and get to set their own agenda. For the first time in, what is it, four years? Four years for the House. From looking at the polling that you have looked at and understanding what you understand about American politics, what do you think

would be the agenda that they would be most likely to pursue? Not just investigations, but like what would Republicans want to bring the most attention to? And maybe we can see where this ranks in all of that.

I mean, I think we'll see action around some of the stuff that's been big politically. You know, immigration and border security is something that, you know, Republicans have hammered pretty hard, especially in some key states during the midterms. So I would expect that to be something that they try to tackle. And tends to be an actually winning issue for them. I mean,

Yeah, yeah, for sure. When you look at the midterm polling, Americans tended to trust Republicans more on immigration and particularly illegal immigration than Democrats.

Right. Specifically the issue of border security and securing the border. That's something that Republicans do have to have some sort of authority on and trust on. Crime. Although, you know, crime is one of those issues where politicians love to run on it, but then there's not that much Congress can actually do. Right.

Unless they want to try to pass another big criminal justice reform bill, which I'm not sure I see. I mean, I also wonder, you know, there's been all this talk about education and parents' rights at the state level, and that's also something where there are...

you know, there are things that can really be done in a meaningful way at the federal level. And so I wonder if that's something that House Republicans are going to focus on, because I also think that's something that's been fairly successful for them politically. Yeah, I agree. I do think that the Hunter Biden investigation type thing is going to be a key part. You know, they've only got control of the one chamber. There's only so much they can do as far as actually

passing legislation this is an area where they can drum up a lot of attention on the issues as they see them and try to cast the democratic party and the democratic administration as corrupt in some way or another and that's sort of this has been promised to us by a number of of members of the house on the republican side so yeah it's it's going to be happening one way or another

Or investigating other things like, you know, the withdrawal from Afghanistan, which obviously did not go the way that Biden presumably hoped it would and is another thing that if it gets brought up is politically not good for Biden. And, you know, spending on COVID-19 funding is something that we've heard a lot about. That's something I could easily see an investigation. So I agree with Kayleigh. I think that there will be a

pretty wide ranging effort to use the investigative power to, you know, bring to light all the many things that the Biden administration and Democrats have done over the past few years that Republicans don't like because they are not going to be passing actual legislation for the most part.

Yeah, I think everything you two have said makes sense. You know, thinking about a strategy here, there are two things you want to do when you're not actually able to pass legislation, but you still have to sort of play the political game, which is one,

messaging bills on your constituents priorities. So things that your voters care a lot about that are going to make them feel like you've got their back, you're doing the things that they want done. And so when you think back to 2019, when Democrats took control of the house, it was HR1. It was those democratic issues things.

like gerrymandering and other reforms that were seen as sort of a response to the way that our politics had gotten out of hand under Trump, I think, and the way that Democrats saw gerrymandering play a role during the decade preceding as well.

And so that's the kind of like messaging bill that you pass that, you know, even once they had control of both chambers was not ever actually going to become law. So I think we'll see plenty of things like that. Even again, Amelia, to your point where like there's not much you can do on the federal level when it comes to crime. I think there are ways to sort of show your constituents that you have their back on those really salient issues like crime.

immigration, crime, and also inflation. But the other thing you want to do is make Democrats take unpopular votes. I think immigration is clearly an area where they're going to be able to force Democrats to take unpopular votes, right? Like actually putting up barriers at the border is not unpopular with Americans in the majority, but it's very unpopular with Democrats, especially a specific response to Trump's presidency. And so that's an area where you can see lots of

votes being taken where Democrats are not on the side of public opinion. I mean, when I try to think of what I... Inflation will be an interesting one. Like, is there actual ways that the two parties can come together? I assume that most of the...

inflation targeting legislation that Republicans are going to put forward is cutting government spending, government programs and things like that. Are they going to pick the popular ones or the unpopular ones? I have a feeling that Kevin McCarthy is wise enough to know not to pursue something like

Social Security or Medicare, although... Yeah. No, you cut funding to the IRS. That's what they're talking about already. And that's who likes the IRS. But I'm curious about maybe other programs as well that they choose to target. You know, I don't, I haven't looked at all of the polling and I assume we'll get the polling when these votes happen or when this legislation is put forth. But like, you know, what are programs that are

where cuts are popular. I don't know exactly what they are. So I guess that's what I'm thinking about as we head into this new Congress. But the other question I have, and maybe we'll end on this, is the I word. Of course, impeaching former President Trump got brought up plenty during the 2018 midterms, especially amongst progressives. It seemed like Nancy Pelosi did everything she could to avoid going down that road, at least when they first took control of the House.

How do you see this dynamic playing out as Republicans take control of the House? You know, there's a certain faction of the Republican Party that has nothing short of promise that they plan to try to impeach, as well as other major figures in the administration. I don't think it's going to happen. It's too obviously a retaliatory move. Kayleigh, that's so bold of you to make that kind of prediction, but I love it.

Yeah, I'm going. It's my birthday. I'm feeling bold and sassy. I'm going to make some claims here. They're not going to impeach Biden. Yeah, I don't know. And I think that there's something to maybe this is giving Republicans too much credit, but having that.

edge over the Democrats of being like, we wouldn't stoop to your level to just impeach everybody all the time. You know what I mean? There's something about like, we really like take our responsibilities seriously that they could kind of play on. Also, I just, you know, what are they going to impeach him on exactly?

Well, I mean, I also think like the midterms have just made the math much harder for them. You know, they have such a thin majority. If they had won in a much more decisive way, then they, you know, maybe the pressure from the right part of the party that really does want to move forward with impeachment, maybe that would be enough. But I think, I mean, I...

think you're right, Kayleigh. I don't expect them to successfully impeach Biden. There will certainly be calls for impeachment. And I think an interesting question is how successful the leadership will be in kind of keeping the lid on that if that's something they've decided they just don't want to deal with. So I think it will be a problem for Republican leaders and for the coalition, certainly because there are people who want it. But I just don't think they have the numbers. Yeah.

I mean, they would have to be basically unanimous on it. And there are some Republicans who, yeah, do not have said they don't think this is a good idea. Yeah.

All right. Well, with that, looking at my phone, we still do not have the report. What's up with this printer, guys? Just give us the PDF. All we want is the PDF for Kaylee's birthday. Maybe that can be on the agenda. I mean, you need to drive over, help them figure out the Wi-Fi printer. I'm sure they just need some help from someone under the age of 50. Do you think they want that?

I could offer that. Yeah, I do live close by. Just call me, Congress. I'll show you how to upload a PDF. So this, as I mentioned, is our last live podcast this year. To give folks some sense of what our plan is for the next two weeks, we are going to have some reruns. We're going to be airing the primaries project.

which if you have already heard, hopefully it was long enough ago where it will be interesting again. But I'm sure there are plenty of you who haven't heard. And essentially the idea is as we get into this next round of presidential primaries, and especially as the Democratic Party considers actually changing the calendar and how their process is run, it's good to think about how this process came to be in the first place and what its consequences are. Spoiler alert,

It's never been rigorously thought through. It's all kind of haphazardly been put together through mistakes and, you know, anxieties when the party and and and happenstance. So, yeah.

Uh, look forward to that next week and the week after. Although if anything big does happen, there will probably be an emergency podcast. However, I will not be hosting it. So enjoy, uh, whoever brings that to you with that. Kaylee, Amelia, any final words of wisdom in the year 2022? Um,

I don't know. Get some rest. It's been a long year, guys. Just like take a real vacation. Delete things from your phone. That's that's all I got. There you go. Final words of wisdom in 2022. Thank you, Kaylee and Amelia.

Thanks, Galen. Happy holidays. My name is Galen Druk. Tony Chow is in the control room and Chadwick Matlin is our editorial director. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or a review in the Apple podcast store or tell someone about us. Thanks for listening and we will see you soon.