This week, we sit down with a Sun reporter and assistant editor, A.R. Hoffman, to discuss the January 6 Committee hearings, the televised portion of which begins Thursday evening. We talk about what to expect and what’s at stake in this blockbuster political event, as well as looking back to that dramatic day in 2021 and at what’s to come.

Vik:  This week we sat down with A.R. Hoffman to discuss the January 6th hearings which made their television debut on Thursday.  We reflected back to that historic day, we discussed the winners and losers of 2020, and what’s at stake in these hearings.  Why don’t we just jump right in? 

Vik:  January 6th hearings start today.  What are you watching for?  What are you expecting?

Hoffman:  I think there are a couple of things.  One is that televised hearings have been a venerable part of American political theater, going back to the Alger Hiss and Whittaker Chambers hearings during the Cold War, the McCarthy hearings in the fifties when television was amassed and media was still new.  Its effects were probably magnified.  I think we’ve seen a diminishing in that fact, from hearings as we’ve become sort of media and image saturated over the years.  Think of the Iran Contra hearings and the underwhelming Mueller appearance in the wake of his report into a relationship between President Trump and Russia.  We live in an image and video saturated culture so Democrats and the two Republicans on the committee, Adam Kizinger and Liz Cheney, will try to do everything they can to break through.  They’ve hired a professional TV producer to put these hearings together as a visual spectacle.  I think one thing that will differentiate these hearings is the use of video within the hearings itself.  I expect less C-SPAN style shots on congressmen and congresswomen sitting there reading from a sheet of paper, and more use of a multimedia audio visual approach.  We’re going to see videos from the events of January 6th itself.  Most of that footage will be provided by an embedded videographer who was there that day.  I think many of us have seen those images already.  I think one new set of material will be videotaped interviews with members of President Trump’s family and inner circle.  Those have not previously been released and I have no doubt that excerpted clips will be featured tonight.   

Vik:   So let me get this straight, Ari.  Is most of it going to be former interviews on video?  How much is going to be live?

Hoffman:  I think what to expect is that it will be like a presentation.  There will be rolling video interspersed with other kinds of narration, and as I mentioned, those videos. 

Vik:  Almost like a live documentary?

Hoffman:  Right.  I think that’s the recognition.  There’s going to have to be something more than just, you know, Adam Schiff looking at the camera and speaking.  In terms of overall schedule, the first hearing is planned for tonight.  They are planned for around 6:00 PM over the course of the next month.  The one tonight will focus on laying out a timeline, according to reports, of the event of January 6th, and telling the story of how we ended up where we did.  The findings will be memorialized in a written report that is set to be released in September.  Of course you know the Midterm elections are coming in in November. 

Vik:  What are you thinking are the questions that are going to be answered here?

Hoffman:  I think part of the challenge of this Committee and in this whole entire project is that many of us watched this in real time 2 years ago.  I think it’s difficult for them to generate new drama.  I think they’re teasing two trailers.  For example, some members of the Committee like Jamie Raskin, one of the leaders of the Committee, who was the manager for President Trump’s second impeachment trial, which centered exactly on these events, we’ll get to it in a second, have said they found proof of more than just incitement.  The story that the Committee is going to try to tell is of a concerted effort, a coordinated effort that included both those in the West Wing and affiliated groups, external groups.  Two of the the most serious charges that have been leveled so far that is, seditious conspiracy that has been have been leveled against leaders of two extremist groups.  There’s one called the “Proud boys” and one called the “Oath Keepers.”  The Committee is going to create a nexus between the government actors in the West Wing and the external groups.  The core question is going to be, “Was a coordinated effort, in fact, present or is this a chaotic situation that spiraled out of control?”

Lipsky:  Is the coordinated effort, if it happened, would it be a crime?

Hoffman:   The difficulty in this entire episode and one thing I’ve kept coming back to, is that everyone from President Biden, down to the Democratic side, to Mitt Romney, famously the day of and for hours after said, “This was an insurrection.”   It’s a word that has been taken as a given.  The problem is that insurrection is a very difficult crime to charge.  It’s not defined in the Constitution.  It is defined in subsequent law.  Remember, the only crime defined in the Constitution is the crime of treason.  Insurrection involves coordinated efforts through violence to overthrow or revolt against the Government.  I mentioned that Seditious Conspiracy has already been charged.  Seditious conspiracy is a kind of B-version of insurrection.  It’s a paler version of full-bodied insurrection.  To your question Seth, bringing Insurrection as a charge would be very risky.  I think these are some of the things that Attorney General Garland is weighing because of the precise difficulty in showing that what was intended, and there’s an element of intent here, is to truly overthrow the Government.  That is a high bar.  Of course, there have been dozens and dozens of charges centering around Disorderly Conduct, Breaking and Entering, Damage to Government Property against individuals who participate in the riots, but once you start to think of these high level political crimes of which one insurrection is one, the difficulty of improving them in court is exponentially more difficult.

Lipsky:  In these hearings, is there going to be a defense?

Hoffman:   No, and that is a core part of it.  As I mentioned, there are two Republicans on the Committee.  Both of them have indicated their belief that President Trump and members of the administration were active participants and facilitators of the events of January 6th.  Remember, Republicans by and large refuse to participate in the Committee.  Adam Kizinger is one of the Republicans.  He is not running for re-election.  Liz Cheney has made her feelings clear she was censured by the Republican National Committee for this participation.  My sense is that the defense will function almost as the rebuttal to the State of the Union.  I see two forms of that defense already.  One is working to discredit the Committee from the outside and pointing out its partisan composition as well as its bias.  The other is going to be refusing to pay attention.  We’ve seen that as Fox News refused to carry the hearings.  There’s a sense that the Committee might already be preaching to the choir in a sense that an impeachment proceeding is not.  An impeachment proceeding, as a quasi-legal proceeding, requires a kind of defense and prosecution.  Such a structure is not present here.  If I could just unpack that a little bit, that goes to some of our concerns about this hearing.  It is a fact-finding hearing or investigative hearing, which is in Congress’s ambit.  But it is functioning more like a legal proceeding, or more like a trial.

Vik:  What do you mean when you say it’s functioning more as a legal trial even though it’s a fact-finding mission?

Hoffman:   The line between saying, “Okay, this happened.  We’re investigating this” versus beginning to make statements that relate to guilt.  This comes close to feeling like it’s acting as a kind of court, or as a kind of judicial body.  The difficulty there is that there is a core constitutional principle banning and prohibiting bills of attainder.  One way to understand the bill of attainder is, it’s when a legislative body acts as a judicial body and passes laws that target one person, or make one person’s behavior criminal.  It was very important to the Founders, who came from a framework in which those two functions, the judicial and the legislative, were mixed, and to separate those two.  That’s why we have Separation of Powers.  The idea is that Article One, which is the Legislative Branch, is not meant to assume the functions and the powers of the Judicial Branch, Article Three. The thing to watch is the connection between this Committee and the Department of Justice.  Already, reports have come out that there is now documentary traffic between the Committee and the Department of Justice sharing interview notes and sharing materials gathered.  The more those two are working hand-in-hand, the more there are legitimate questions.  Where does one end and the other begin?  The ultimate charging decision will be up to Attorney General Garland, but if the two are working in concert, the line starts to blur. 

Lipsky:  I have a recollection of the trial of Admiral Poindexter and Oliver North.  They eventually were cleared because the Supreme Court said the evidence given in the congressional hearings could not be used against them in trial so they were cleared.  That was an example of the mixing of the legislative evidence inducing process on the judiciary process.

Hoffman:  That’s a great precedent.  Partially because those were also televised hearings.  They also had to do with political scandal, or who knew what and when.  Seth is exactly right.  The issue there was that the Government had made promises to those individuals and granted them immunity in exchange for their testimony.

Lipsky:  Has that been going on here?

Hoffman:  Not that we know of.  There’s been no granting of immunity in terms of the testimony, but it does bring up another core constitutional question, and that is one of double jeopardy.  That’s the other issue here.  We’ve already had an impeachment proceeding on exactly this question.  Now, the Committee will say, “We didn’t know then what we know now.”  Okay, but it basically concerns President Trump’s responsibility for the events of January 6th.  The Senate found President Trump not guilty.  It’s important to say “not guilty” because it is a legal proceeding, an impeachment trial.  The Senate sits as the jury in that proceeding.  There is one question here.  Just as with Oliver North and John Poindexter, the problem was immunity, but the problem was also a trial on the same facts.  To what extent is that going on here?

Lipsky:  Correct me if I’m wrong, but the prohibition on double jeopardy, when it comes to impeachment, is that if the president is removed through impeachment, he can then be tried in a normal court? 

Hoffman:  Right.

Lipsky:  What happens if he is impeached and acquitted?  Can he then be tried in a normal court?

Hoffman:  I don’t know.  It’s an interesting question because impeachment is a hybrid concept.  That is, it’s a political process with judicial accouterments.  I think you probably could.  One issue that came up with Trump’s impeachment was if he was convicted, he then could be barred from holding office again so there is a kind of legal salience in that.

Lipsky:  Do you think that’s what’s going on here in an effort to prevent him from running again?

Hoffman:   I do.  We’ve seen that effort multiply on a variety of fronts and I’ll give you three.  One is this Committee work.  The other is a series of investigations against him.  Now they are mostly civil, launched by Letitia James in New York, which also brings up questions of testimony because he’s testified and he’s now compelled to be deposed in a civil case next month.  That material could then be used in a criminal case against him, which is semi-dormant in New York, but still could be revived.  The other is the effort, as we’ve discussed, to disqualify candidates from running based on the 14th Amendment’s Disqualification Clause.  The organization leading that effort has been quite up front that their ultimate target there is President Trump.  In terms of that effort and this effort, there could be a feedback loop, where material gleaned from this committee investigation is then used to make the Disqualification case in 2024.

Vik:  What do you think is the Democrats’ or the Committee’s greatest hope for this? 

Hoffman:  There’s a sense in which the broader context for this is a conversation that you see oftentimes employed in the broader Democratic world, capital “D,” I mean the Democratic Party, and also elite magazines.  The Atlantic has been very much interested in this, and others, about a crisis of democracy.  There’s this notion that our democracy is teetering, or in peril in some way.  I think the focus on this rhetoric investigation is a way to keep that narrative active.  I think there’s a sense in which, in light of President Biden’s fallen poll numbers, difficulties from everything from the economy to foriegn policy, there’s a way in which keeping the focus on this advantageous to Democrats.  It fits in with a broader strategy of alarmism around democracy, or the sense of feeling besieged, or under attack.  We’ve seen now this tension where Republicans want to move on from January 6th.  Democrats want to stay there.  There’s this kind of tension of where political attention should linger.  I think there’s no question that the prospect of President Trump running again keeps this kind of active and keeps the wheels whirring in a way that they otherwise wouldn’t. 

Vik:  In terms of legal consequences, what do you think is the highest goal there and what evidence would we need to see here to make that a potential outcome?

Hoffman:  I think we’d have to see evidence of a real masterminded fear of the influences phrase conspiracy.  For Merrick Garland to charge Donald Trump with something like Insurrection, you’d need the real proverbial “smoking gun.” 

Vik:  What would be the proverbial “smoking gun?”

Hoffman:  I think it would be something like, “Storm the Capitol, stop the vote, and keep me as president.”

Vik:  Would he have to say that directly to someone, or would we just need to see evidence that that’s what he wanted?

Hoffman:  Well, that’s what the Committee will try to glean from speaking to the people around Trump.  From Mark Meadows, it’s clear there is a source that the Committee has spoken to Ivanka.  Reportings suggest that Ivanka was not on board with this and was trying to somehow mediate or slow things down so I don’t think they’ll be much there.  Famously, Jared Kushner, the President’s son-in-law and Senior Adviser, who was on the plane during the riot coming back from the Middle East. I think the difficulty will be figuring out where there is real intent, and not just apathy, or recklessness, but real evidence of intent.

Vik:  Intent meaning intent and some driving of the situation?

Hoffman:  Yes, it would have to be more than just speaking at the Rally.  It would have to be an ongoing facilitation I think.

Lipsky  The smoking gun in the Nixon case was the production of tape recordings that had the President telling Haldeman, or telling Vernon Walters, one of the President’s aides, to interfere with the FBI investigation of Watergate.  That’s the kind of thing that would be a smoking gun.  President Trump telling someone, “To the hell with that correct counting. I want the presidency,” or something like that.  

Hoffman:  We have a question from Rebecca.  I can read it.  “Could the Committee have the opposite of its intended effect i.e. could evidence be exposed that vindicates Trump and the protesters?  Could others be implicated in illegal activity, or could any such information be quiet if it did exist?

Hoffman:  That’s a great question.  I think Republicans will point to the partisan nature of the Committee.  We’ve seen a counterargument or pushback around some of the failures of management around security at the Capitol.  That goes to Senator Schumer as the Majority Leader and the Speaker of the House, Pelosi, in terms of the unpreparedness or incompetence in not equipping themselves well during that.  Republicans, I think, will be on the lookout whether that is brought up.  My sense is that it won’t be focused on given the bent of the Committee.  The political danger for Democrats in this is the danger that Trump has always presented for Democrats and everyone knows this.  It’s sort of like, you know the wisdom of impeaching him twice knowing you don’t really have the votes to convict.  It’s the sense that Americans will be outraged.

Lipsky:  That in itself was an abuse.

Hoffman:  And a farce almost.  Impeachment was a rare thing.  Then it became a semiannual and biannual thing.  If they don’t have the smoking gun, I think it’ll be a sense of why bring it up again?  One interesting spot to watch is the relationship between Trump and Pence.  There were reports that the day before the riots, a member of Vice President Pence’s staff went to someone on Trump’s staff and said, “I feel like the Vice President is in danger.” Because of this increasing rhetoric, why doesn’t Pence intervene to stop the vote?  There’s no love lost there.  Of course Mike Pence is thinking of making his own run for president and is increasingly distancing himself from Donald Trump.  Coincidentally, a piece by the Atlantic came out today entitled “Mike Pence is an American Hero” for his efforts to resist the pressure from President Trump.  The piece argued that if not for Mike Pence, we’d be back to 1861.  I think there’s an effort for Pence to portray himself.  I wonder if either Pence or a member of the staff, specifically Marc Short, his Chief of Staff during this, will at all try to shape the narrative. 

Lipsky:  Pence’s interests, narrowly defined politically, would be to have President Trump disqualified. 

Vik:  On that point, are there presidents or historical periods either in our country or in other countries that you are looking to as you try to think through what this means and what it says about political violence and the threat of it?

Hoffman:  I would turn to Seth and ask him.  One comparison that is often mentioned is the unrest in the sixties and early seventies.  This threat to Kavanaugh brings to mind political assassinations from that time.  In some ways, all of this feels new to us of course, but America does have a history of violence and protests.  Personally, the events of the summer of 2020 felt new in my lifetime.  I’m 34.  That unrest, disorders, a sense of violence, a sense of precariousness, I live in New York City, was not something that I had experienced in my lifetime.  I think we live in a politically unstable time.  The fact that the 25th Amendment, which is meant to remove a president from office for being mentally disabled in a certain kind of way, has now been discussed vis-a-vis our last two presidents.  It’s an indictment of the leadership of this country.  I think the pandemic, and word now of a recession coming on, creates a very unstable and volatile mix.  Seth, do you have any reflections?

Lipsky:  I was at the Armies of the Night Protest at the Pentagon in 1968.  That’s the title of Norman Mailer’s book on the event.  I would say in a way, the one on January 6th was more dangerous to the Republic in that it was trying to foil a specific government action whereas the  Armies of the Night Protests, in Vietnam, weren’t trying to break into the Situation Room and cut off the communications.  They were just massively gathering in front of the Pentagon and throwing flowers at the Army.  It was plenty tense.  It was huge.  I was on the Hawk’s side of that demonstration, but I was there not as a protester.  I was there covering it for my hometown newspaper and for Time magazine.  I was a senior in college and I was Time’s stringer in college.  It was plenty dramatic, but I felt the January 6th thing was much more serious.

Vik:  Ari, you’ve been covering the Primary in Pennsylvania where there was a lot of debate over the election results.  Is this going to become the norm?  Is every election, every race going to become contested?  What should we expect for November and what can we do about it in the run-up to it?

Hoffman:  One of the worrisome things is that, not only are the two parties competing on the field, but they’re fighting about the rules of the game itself.  There’s a way in which conversation moves, where we agree on whether there’s a winner and a loser, but when that itself is disputed, you have a real erosion of a sense of shared political framework, a shared political space.  I think there’s some reasons for optimism.  One of our reporters had a piece on Georgia.  It had passed changes in election procedures and Democrats were sort of outraged.  President Biden called it a “Second Jim Crow” and in fact, turn-out surged in the Georgia Primaries.  I think there’s a tendency, on both sides, towards alarmism.  You mentioned the Pennsylvania race.  On one level, that is a story of failure.  We have a mess that involves federal courts and local courts shifting standards for counting ballots.  On the other hand, David McCormick, who was down around 900 votes to Mehmet Oz, conceded the race and didn’t engage in a protracted fight about it.  One thing I think about whenever I talk to Democratic friends is that there is a fear of “Trump will steal the next election like he tried to do the last one.”  Trump is a problematic character on the national stage, but there’s a greater chance that Trump just wins the election outright.  In some ways, focusing on these procedural questions makes it more likely that Trump just beats Biden soundly than there is a stolen valor or contested election.  I think the Democrats, and this takes us back to our initial observation, how do you balance dwelling on January 6th versus the reality that most Americans care about inflation and other day-to-day issues?  Right now, those numbers don’t look too hot.  It’s a little bit like trying to walk and chew gum at the same time, where Democrats think there’s an argument to be made about January 6th.  I don’t know how much that’s going to resonate in 2024.  

Lipsky:   I’m looking at a note from one of the members in the audience about the contrast with the March for Jobs and Freedom in 1963.  Huge, just huge, completely different in every respect.  Starting with A. Philip Randolph who convened the March.  These are just incredibly distinguished figures operating totally within a Centrist and heroic tradition.  I mean she just clicked, for a quarter of a million people.  Absolutely.  It was just huge.  I don’t see a comparison between that event in either of the other ones mentioned, January 6th or the Armies of the Night.  It’s just completely different.

Hoffman:   I do think another interesting point there, Deborah and everyone else, is the question of social media.  I think the way in which a lot of the action now happens online.  I think one of the startling things about January 6th was that it felt almost like an analog event in a sort of digital world.  The way in which, and this is another topic, free speech and good behavior versus bad behavior on a social media platform.  However many people Trump reached at the Stop the Steal Rally, he no longer has Twitter.  He doesn’t have that other platform.  What will that mean for his ability to communicate, for his ability to rally, or impress himself on the conversation?

Vik:   You mentioned Georgia and how they changed the laws.  Are there other examples around the country of states that have taken action on this front and what’s come from it?

Hoffman:   Yes, one thing that we’ve covered, and that’s kind of an “other element” of this January 6th Committee.  Let’s say we’ve outlined two functions so far.  One to create a record of January 6th and one to have a quasi-judicial hearing of President Trump and his family and inner circle.  The other is to recommend prospective changes.  Here, we’ve already seen discussion within the Committee, a proposing to abolish the Electoral College.  Deborah spoke very eloquently of how the January 6th riots kind of changed the climate of opinion and maybe changed a physical landscape, but to what extent will they result in institutional change?  I think that’s kind of an extreme course.  There’s also legislation currently being circulated to discuss the reform of the Electoral Count Act.  That’s an act that was passed in 1887.  The idea is to more tightly control vulnerable points in our vote counting system, namely once electors are chosen, clouting them in legal legitimacy, and also using court review on the state level to supervise any kind of funny business in terms of influence of electors and things like that.  

Lipsky:  I wonder if you share the impression I have that it’s a little odd that the Democrats are in such a high dudgeon over the use of the Electoral Count Act by pro Trump members of Congress in the counting process.  It was Congress that created the Electoral Count Act and gave people a formal method for dissenting the count or challenging the count.  You had to get one member of the House, one member of the Senate.  And so when they did that, people went into a terrible swivet even though Congress created the procedure.

Hoffman:  Entirely, and this is a core question of this Committee.  Democrats have painted any attempt to question the results as insurrection.

Lipsky:  And their own rules fairly invited the dissent, and it’s been used by others before that.

Hoffman:  The line drawn between refusing to certify the votes, agree or disagree, it’s an exercise of congressional duty, versus the violence that we saw.  I think Democrats are trying to merge those two, to say that the vote itself is an act of insurrection or an act of violence.  It’s conceptually important to keep the two distinct.  For example, we just ran a piece by one of our new writers today about the resignation of Harvard’s president.  This coming year will be his last year.  After that, Elise Stefanik, who has become a big supporter of President Trump, was disinvited from a campus position, not because she participated in the riot, not because she stormed the Capitol, but because she questioned the results.

Lipsky:  Under the Electoral Count Act. 

Hoffman:  Right.  We’ve seen this in these challenges to disqualify candidates.  What does it mean to have participated?  How will this be an issue in the Committee?  What does it mean to have tweeted about it?  What does it mean to have speculated?  What does it mean to have been there, but not gone to the Capitol?  These are the things that Garland will be looking at.  

Lipsky:   Which brings us back to one of the points that you opened on.  There is no defense in this trial.  It’s going to be all prosecution so you have to bear in mind, as one has to bear in mind watching it, that we’re watching a trial without a defense team.  Was it Jim Jordan who was disallowed from being a member of the Committee?  

Hoffman:   There were two issues.  One was a general sense of Republicans not wanting to, but then it also came from the other direction where Democrats said “if you were at all tangent to these events, you’re disqualified from participating.”  

Vik:  Speaking of candidates being disqualified, news just came out that the FBI arrested a Michigan GOP candidate in connection to January 6th.

Hoffman:  Yes, one of the sort of interesting elements of all this is, we’re a year-and-a-half out, but in some sense it feels like January 6th is just beginning.  The other major figure who I think this will revolve around is Doug Mastriano, who is the Republican nominee for Governor of Pennsylvania, who was at the Capitol that day.  There’s some debate about whether he breached the barriers or was kept on the far side of the barrier, but increasingly, it feels like where one stands on January 6th will be a kind of political litmus testimony.  Where that leaves room for people who are trying to strike at middle ground, or try to approach it with nuance, that’s a question. 

Vik:   Ari, to wrap us up, are you expecting any surprises to come out of these hearings?

Hoffman:  I would be looking at the interviews.  It will be seen for the first time.  With members of President Trump’s family and inner circle, and I don’t doubt that with the presence of, and I say this not to suggest that the footage will be in any way doctored, but the Committee has retained high-level producers and production value.  You can bet that if there is a sound bite, or there is a kind of interaction, that is certain in today’s age of social media, it will be replayed and replayed everywhere.  Seeing people like Ivanka Trump, Donald Trump Jr. on camera will provide some of the currency for these hearings. 

Vik:  How do you think Republicans are going to handle it?

Hoffman:  I think there’s a broader divide in the Republican party.  This is over President Trump and more particularly, the 2020 election.  Here’s the thing, if there are perils for Democrats for focusing on 2020, in their own way, there’s a mirror image of issues for Republicans.  The more they focus on 2020, the less compelling they are to voters outside their own base in 2022 and 2024.  I think there is a middle ground for Republicans where it’s like moving on without having to intensely re-litigate it.  The fact that Fox News is not carrying the hearings at all suggests a willingness and desire to move on.

Sages of the Sun is a weekly podcast produced by The New York Sun. The Sun is committed to upholding the finest journalistic traditions and staying true to our motto, “It Shines For All.”

Seth Lipsky is a seasoned veteran of the news business, and among the most revered American editors. He previously spent 20 years at the Wall Street Journal, launched the Jewish Daily Forward, and first revived the Sun back in 2002.

Caroline Vik has more than a decade of experience in policy-making, with years spent on the Senate Foreign Relations Committee, at the Department of Defense, and on the National Security Council.