Former federal prosecutor Glenn Kirschner has been speaking the blunt truth about Donald Trump's criminal conduct for years. He's not stopping now just because most of the media, and most Democrats in Congress for that matter, have moved on. I spoke to Kirschner, who is now an NBC News legal analyst, in a recent "Salon Talks" episode about Steve Bannon's indictment and more.
During our conversation, we kept coming back to is Kirschner's conviction that the disgraced former president is still a very real threat to our nation. And Kirschner, who served for more than 30 years as a federal prosecutor, is adamant that the only way to neutralize that threat is by prosecuting Trump for his crimes, ranging from those he may have committed in his effort to overturn the 2020 election to possible crimes arising from his mishandling of the pandemic.
Kirschner believes there's actually a case to be made against Trump for all the lies and misinformation he spread about the coronavirus and how to defeat it, from his intentional falsehoods about the nature of the threat to his disgraceful conduct designed to undermine safeguards, such as mask mandates, entirely because he believed it helped him politically. Kirschner, who formerly headed up the homicide unit of the U.S. attorney's office in Washington, D.C., told me that Trump's "grossly negligent conduct was reasonably likely to result in death or serious bodily injury to another."
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Regarding the possible crimes arising from the Jan. 6 Capitol attack, Kirschner said this about Trump's apparent role: "If you don't punish an attempted overthrow of the government, an insurrection, a rebellion, we're going to get more rebellions. That's just common sense." Watch my Salon Talks interview with Kirschner here or read a transcript of our conversation below to hear him lay out the case for manslaughter charges against Trump himself, and discuss the likelihood that prominent Trump allies are on their way to prison.
This conversation has been lightly edited for clarity and length.
Let's start with Steve Bannon. He's been indicted. Can you explain why there was a delay in this indictment? What do you think actually prompted the Department of Justice and the U.S. attorney in D.C to finally indict him?
We were on Steve Bannon indictment watch for 22 days from the day he was voted in contempt and referred for prosecution to the D.C. U.S. attorney's office until the U.S. attorney finally presented it to the grand jury and the grand jury indicted him for two counts of contempt of Congress. Twenty-two days. We know historically it's been done in as few as nine days. It was done to a Reagan-era EPA official named Rita Lavelle. Twenty-two days may sound like a long time. First of all, it wasn't that long. It takes some time to put a quick investigation together, present it to the grand jury and have them vote out an indictment. But I really think the holdup was because there was an acting U.S. attorney for the District of Columbia in place at the front end of that 22-day period.
I've worked for more than 10 U.S. attorneys in D.C. Some of them were acting, some of them were interim, some of them were presidentially appointed and Senate-confirmed. Ordinarily when you have an acting U.S. attorney, that person just tries to keep the trains running on time, not make a lot of waves, not take on a lot of high-profile decisions. The new permanent U.S. attorney was confirmed by the Senate and took over one week before Steve Bannon was indicted. His name is Matt Graves, a former colleague of mine. He's a good man. He's a thoughtful man. He was a public corruption prosecutor when he was in my office. One week after he arrived, bam, Steve Bannon indicted. I think that's an important tell and some foreshadowing about how promptly the new D.C. U.S. attorney is going to go about his business.
Steve Bannon said at his press conference, after going to court for the first time, "They took on the wrong guy this time." He said, "It's the misdemeanor from hell." You know the new U.S. attorney in that district. How do you think he's going to respond to that?
Steve Bannon has a rude awakening coming, because he's going to be convicted if he opts to go to trial. Why? Because the offense he committed, contempt of Congress, requires the prosecutors to prove that he was served a lawful subpoena and that he failed to appear. The fact that he is raising executive privilege — first of all, he doesn't have any. He could say, "I am invoking magical unicorn privilege," and it would be equally persuasive.
I don't want to get down into the weeds of executive privilege, but when you get a subpoena, you have to show up. If you have any privilege — executive privilege, attorney-client privilege, parishioner privilege, doctor-patient privilege — you begin answering questions. If the questions begin to make their way into privileged information, you say, "I hereby invoke the privilege." The Fifth Amendment privilege against self-incrimination, for example.
The way you don't handle it is to thumb your nose at a subpoena and refuse to show up. This is going to be a very easy criminal case to prove. Steve Bannon will be convicted. And under the statute, if he's convicted of contempt of Congress, each count carries a minimum of one month in jail and a maximum of one year in jail. He will see jail time in the event he's convicted.
In your view, it's clear he has no legal defense. What about the case of Mark Meadows, the former White House chief of staff? He seems to be communicating, through his legal counsel, with the Jan. 6 committee, but he seems very reluctant to respond to a subpoena. Does Meadows have a potentially more valid defense?
Mark Meadows has no defense for failing to appear on the subpoena. Now, he may have a more legitimate, more viable executive privilege claim, because he was actually part of the administration at the time these communications were had. But what he was required to do under the subpoena is to appear and assert, question by question, whether he was invoking executive privilege or not.
I'll give you an example, Dean. The first question is going to be, "Sir, please state your name." "No, I invoke executive privilege." Mark, you have no executive privilege over your name. And the questions would have progressed in that fashion until maybe questions involving executive privilege got asked. That's when you invoke the privilege. What that does is it creates a record and defines the parameters of what the witness is actually invoking executive privilege on, and then that can be litigated.
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You make a great point for people who think, well, maybe Mark Meadows has executive privilege, as he was White House chief of staff until the very end. You've got to go there, and you or your counsel invoke the privilege. You don't just blow off a subpoena. I saw you tweeting about Stephen Miller, yukking it up on Fox News. He was served as well. Maybe Meadows sends a message to Miller, Kayleigh McEnany, Bernard Kerik and all the rest, because I imagine they're going to follow suit. If nothing happens to Meadows, they're going to claim the same things.
You are far more likely to see the McEnanys and the Stephen Millers appear on the subpoenas now and then maybe try to invoke whatever privilege they believe they have. I do predict that, as you say, other witnesses are now going to begin appearing and they're going to challenge the subpoena in other ways. That's why this was a really important step for both the House Select Committee and the Department of Justice to have taken against Steve Bannon.
I want to shift gears a little bit. A lot of people have talked about the potential criminality of Donald Trump in connection with Jan. 6, which we'll talk about in a minute. But everyone has just forgotten or not even addressed the idea of Trump's potential criminal culpability for his lies and what could be manslaughter charges around COVID. You just put out a video on this very point. Please tell people why you think, as a former federal prosecutor who was chief of the homicide unit in D.C., why Trump may have committed crimes in connection with his handling of COVID.
If you look at a relatively low level of homicide, every jurisdiction, every state has its own laws, its own statutes. They call the crime different things. Some jurisdictions call it negligent homicide. In D.C. we call it involuntary manslaughter, but it's a relatively low level of homicide. Donald Trump's conduct, even just what we've seen publicly reported, satisfies — in my opinion as a former career homicide prosecutor — the three elements that we're required to prove to hold somebody accountable for involuntary manslaughter.
Those are that somebody acted in a grossly negligent way. Donald Trump acted in an intentionally criminal way when he lied to the American people about the nature, the transmissibility and the way that you can protect yourself against contracting COVID. He lied to the American people about that. We can prove that because he told Bob Woodward, on tape, the true state of affairs and then he walked right out to the cameras and he lied to us.
The one incident that really sticks with me, that I think would be a marquee piece of evidence in a Donald Trump prosecution for avoidable COVID deaths, would be when he told Jeff Mason, wonderful reporter standing in the Rose Garden during a press conference. He told him, "Take off the mask." And Jeff Mason said, "Mr. President, I choose to protect myself. I'll speak up my more loudly but I'm not going to take off the mask." Trump then mocked him and said, "Oh, I guess you want to be politically correct."
Dean, what message did Donald Trump's base, the people who for whatever reason, decide to listen to and credit what Donald Trump says, what message do you think they took away from that? "Oh, the president just told me I don't need a mask. And beyond that, he would mock me. He would belittle and demean me and call me 'politically correct' if I wore a mask. I am not wearing a mask." Donald Trump put people in harm's way unnecessarily.
The three elements: that he acted in a grossly negligent manner. He did. That his grossly negligent conduct was reasonably likely to result in death or serious bodily injury to another. When we're dealing with a deadly pandemic, you can check that element off the list. The third element is the one that sounds more complicated or harder to prove, which is that your grossly negligent conduct caused the death of another. But causation has a legal definition. It is that your conduct is a substantial factor in bringing about the death of another. And Donald Trump's conduct was a substantial factor in people declining to protect themselves against the coronavirus. That is a strong case for involuntary manslaughter. It just takes some strong, brave prosecutors to bring the charge and then put it in front of a jury. As long as it's a fair and impartial jury, they will hold Donald Trump accountable, in my opinion.
To remind people, because so much has gone on since then, on Feb, 7, 2020, Trump told Bob Woodward point blank that COVID-19 was "deadly stuff," noting it was five times more deadly than even the most serious flu. Then, on Feb. 26, Trump goes before the cameras, when America's looking for answers, and says, "We view this the same as the flu." He lied to the American people, knowing the risks. That's really where the crux of the criminality could be in this: knowingly misleading people when you know the risk, you know people are looking to you, you have an obligation. You're not some random guy. You're the president of the United States and people are misled to their death because of this. What would it take for a prosecutor to have the courage to file that complaint against Trump?
If I were still at the D.C. U.S. attorney's office, working murder cases on Jan. 21, I would have begun presenting evidence to the grand jury of Donald Trump's responsibility for avoidable COVID deaths. The Department of Justice could not have stopped me. They could have fired me. That's the only way they could have stopped me, because it's the right thing to do to honor the victims and to the community.
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What is it going to take, Dean? I think nobody, no prosecutor in New York or Georgia, at the Department of Justice or elsewhere, wants to be the first person to bring criminal charges against a former president. I predict, though, he will be charged and then every prosecutor will want to be the second one to bring charges, because the white-hot glare of media and political and citizen attention will be on the first prosecution. But because Donald Trump committed crimes in virtually every jurisdiction in our nation, anywhere someone died of COVID and they didn't have to, there is criminal liability. You're going to begin to see a tidal wave of criminal charges against Donald Trump, I suspect, once the first jurisdiction indicts him.
There's two other buckets of potential criminal liability against Donald Trump that I want to cover. One is the lead-up to Jan. 6. We've learned more about what we saw that day. We keep learning more and more information about Donald Trump behind the scenes, working with people, trying to get the DOJ to help him overturn the election based on a lie. There was no good faith. It was corrupt. It was bad motive. What potential criminality could Trump face?
There is one overarching conspiracy to commit offenses against the United States that I believe Donald Trump and Jeffrey Clark and John Eastman and Donald Trump Jr., Rudy Giuliani, Mo Brooks — all the people who participated in not only the run-up to Jan. 6, lying to the American people to gin them up, to get them upset about their vote being stolen when in fact it wasn't stolen, but then also participated in the events of Jan. 6 and beyond. I believe there is a very easy charge and it's been brought in the recent past by Bob Mueller. It's called conspiracy to commit offenses against the United States.
I urge everybody to go to the DOJ website because it sets out in a paragraph, in layman's terms, just how broad and sweeping a criminal offense that is. Remember Bob Mueller indicted the Internet Research Agency in Russia on that charge. Why? Because they interfered in our free and fair elections. That is precisely what Donald Trump and company did. They tried to overthrow election results, overthrow our democracy.
That is one overarching conspiracy charge that they're on the hook for. There are lots of other pigeonhole crimes. There is a seditious conspiracy, rebellion. There are any number: Inciting an insurrection is a crime I maintain that Donald Trump fulfills all those federal criminal statutes. I'm optimistic that the Department of Justice is quietly, the way they should be, investigating all these crimes. It's not just a House select committee. I believe in my heart of hearts, knowing many of the people at the Department of Justice, that they're quietly going about their business. How can you not? When you see all this evidence of criminality and there's clearly what we call adequate predication — enough evidence to open a criminal investigation — I don't believe for a minute DOJ is turning a blind eye and saying, "We're happy to give our republic away to Donald Trump. We're not going to investigate these crimes." I don't believe that for a minute.
For Jan. 6, you touch on the idea of seditious conspiracy, which is a crime. But what about the simplest one, incitement to riot? Because we're learning more and more that it seems that it really was, I'm not going to say organic. Those people showed up because Trump lied to them for two months. He radicalized them like an ISIS recruiter. They came there for that but it doesn't seem they planned it, "We're going to attack the Capitol this way or that way." Trump's speech, the fact that he brought them there, incited this. That was what lit this fuse. What rises to the level of inciting a riot? Which was on federal property so it would be a federal crime.
I think one of the most important evidentiary components of what Donald Trump did on Jan. 6 that makes him criminally responsible for what his supporters did after he ginned them up is that everything he said and did came from a place of fraud and lies and deception. He took that group of people and he said to them, "Your vote was stolen from you. Your election was stolen from you. Your president is being stolen from you and if you don't go up the street and fight like hell, you're not going to have a country anymore."
Then Rudy Giuliani said, "Go down there, trial by combat." Mo Brooks, Don Jr.: They said, "Go down there, kick ass and take names." This all came from a platform of lies, fraud and deception, which gives not only the act that you need but gives the mental state, because he lied to the people about all of it. He basically used that angry mob as a weapon in his hand. He pointed that weapon at the Capitol and pulled the trigger. And that bullet headed up the street and they attacked the Capitol. To do what? To stop what was going on in the certification of the Electoral College vote count.
That's what Donald Trump told them to do. He gave them a directive, an action word: Go up there and stop it. And the fact that he called it a steal, he was saying, "Stop the vote count" — that is an attack on our democracy. He used the word "steal," which is a fraudulent word. That's what gives him the corrupt intent necessary to hold him accountable for those crimes.
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And think about what came before this: His Department of Justice officials telling him, "Mr. President, there is no systemic fraud that undermines the election results." Donald Trump said, "I don't care. Just say there was and leave the rest up to me and my Republican friends in Congress." Dean, what I've just described in the last three minutes is the opening statement in the trial of Donald Trump for inciting the riot and the insurrection. It's right there plain as day, we just need to present it to a jury.
Let's take it a little broader. Right now we're seeing violence from people on the right against school board members, against nurses and doctors over COVID mandates, even against Republican officials who speak out against Donald Trump. If Trump is not prosecuted criminally for his actions — the fact that he's not been prosecuted so far, is that emboldening his people to do this?
Yeah, not only is it emboldening everybody because, listen, if we didn't punish bank robbers, we'd have a whole lot more bank robberies. If you don't punish an attempted overthrow of the government, an insurrection, a rebellion, we're going to get more rebellions. That's just common sense. But even beyond emboldening people, here's how Donald Trump will spin it if he is not indicted by the Department of Justice for the many crimes he inarguably committed. He will say, "The Department of Justice has given me a stamp of approval for everything I did because if it was a crime, they would have prosecuted me. They didn't. That means they vouch for me in everything I did. It wasn't criminal and I'm going to do it again." Again, this is not rocket science. This is just common sense law enforcement.
When you take a big-picture look at where we are now as a nation, how concerned are you for our democracy given that Trump has not been prosecuted and people on the right are celebrating, including Republican elected officials. We're seeing Republicans who are more upset with other Republicans who vote for the infrastructure bill than with Congressman Paul Gosar, who put out a video cartoon where he's literally killing AOC. It seems that the GOP has embraced violence or at least has no problem with it. And at the same time, they're passing laws — at least 33 laws in 19 states — to make it harder to vote.
Here's something that I think is a positive that is likely to come out of all of this. I think the Republican Party is writing its own obituary because I don't believe that what they're doing is sustainable. I don't believe it's a way to grow the party or even to keep the Republicans that have thus far not walked away. When everything you're banking on involves voter suppression laws and demonizing minorities, whether immigrants or African Americans, or when you have no actual agenda to offer, all you have is hate and division and propping up a criminal former president, that's not a winning formula for the future. It may be the only thing they feel like they have at this moment to try to retain power, but it's not a long-term winning strategy.
I think the Republican Party falls and there's probably a new version of it that is born from the Liz Cheneys and the Adam Kinzingers of the world, who retain their conservative principles but they also retain their morality and their love of country and their defense of democracy. That is where the future of the Republican Party is. But the old Republican Party is dying. I think it has to die completely and then a new Republican Party has to come up from the ashes to replace it. That is what I see as the long-term strategy, as long as we can keep our democracy up and running in the meantime. That, I think, is the challenge.