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joining us is jeff robbins , he is the former assistant u.s. attorney for the district of massachusetts in joining us to talk about the congressional investigation of january 6. thinks for your time. guest: thanks for having me. host: can you expand on the role you served in congress, particularly in investigation and how congress investigates things, or events and things? guest: i was simultaneously chief counsel for the democrats, minority at the time, for something called the senate permanent subcommittee on investigations, which is a great subcommittee with a significant bipartisan tradition. at the same time, i was dippy chief counsel for the minority for the senate governmental affairs committee, the full committee. at the time, it was investigating allegations and proprieties by the clinton-gore

campaign in the 1996 election. host: when did you think about the january 6 criminal referral -- what did you think about the january 6 criminal referral? guest: the underlying volume of serious work done by this committee, nobody -- regardless of political inclination -- can challenge it. this was 1000 witnesses, nearly a million documents. the executive summary of the report being released tomorrow runs 150 pages, 76 to two footnotes. when you have an executive summary longer than winston churchill's six volume history of world war ii, you are dealing with a serious document. with respect to the referrals, there is obviously an anonymous amount of evidence that supports each of the referrals. that is not to say that ends the equation as far as justice

department lawyers on the receiving end of those referrals are concerned. because they have a very different calculus to make. they have to assess whether or not that evidence is proved beyond a reasonable doubt that will enable them to proceed with some confidence that they can persuade a jury of 12 unanimously that there has been proved beyond a reasonable doubt -- proof beyond a reasonable doubt, so much so to convict a former president, which is never been done before. while i think the charges are supported by evidence, that is far from the end of the equation , as far as the justice department or special counsel lawyers who now have to review it are concerned. host: obstruction of official proceeding, conspiracy to defraud the u.s., conspiracy to make a false statement, giving aid to the insurrection. are you saying you can find evidence in what was presented

directly to the former president trump on those fronts? guest: yes, for certain. it should be noted, for example, with respect to the first two charges, conspiracy to impede and to defraud, which are related, there is a federal judge ruling on a very narrow sliver of the evidence the committee had before, judge carter in california, wrote a decision finding in his view, it was likelier than not that the former president violated those criminal statutes. there is evidence supporting each of the four, there is enough evidence of corrupt intent, which is an element that straddles all four of these potential charges. we are not talking about a mountain of evidence of corrupt intent, we are talking about a mountain range at this point. that is not to say the former president would not have significant defenses, in the event those charges are brought.

that is what the justice department lawyers in special counsel lawyers have to assess. there will be a lot of sleepless nights over at the justice department, probably already have been. people ask themselves the question, ok, i get it. but can i persuade a jury of 12, unanimously, beyond a reasonable doubt, that the former president is guilty? especially where there are these defenses that are related to speech and asking lawyers for advice and the like. host: we seen the committee refer other criminal referrals to the justice department, the justice department took some, did not take others. what is the process like in determining what is done with that? guest: number one, as said, i think a lot over the last 24 to 36 hours -- the fact of the referral is of no consequence. the justice department, traditional way -- there have been blips along the way,

including under the trump administration, is an institution that prides itself on independence. it prides itself on holding itself to very tough standards and frankly, it knows the federal judges before whom lawyers appear will hold that to very tough standards. what there will be is an independent review of the evidence that is sent over, the transcripts and documents, in conjunction with the evidence the justice department lawyers have already amassed. the analysis will be independent of whether or not seven members of the congressional committee, however smart they are, and some members of the committee are not just smart, but very good lawyers. there will be an independent test, that test will be charged by charge, with respect to those for and other potential charges. is there evidence beyond a reasonable doubt? is there a great deal of evidence beyond a reasonable doubt?

given the anticipated defenses, how likely is it that we can prove to a jury beyond a reasonable doubt that, under these extraordinary circumstances, a former president should be found guilty of charges, which would send him or could well send him to prison? host: (202) 748-8001 for republicans, (202) 748-8000 for democrats and (202) 748-8002 for independent. you can text us at (202) 748-8003. jeff robinson served on capitol hill and is talking about yesterday's recommendations from the january 6 committee. you talked about the idea of possibly charging a president, how much does it matter he is running for office? guest: at this point, we are beyond that. i take the attorney general at face value when he says that really can't be a factor, and

the appointment of a special counsel is strong indication it will not be a factor. special counsel who has been appointed is a very experienced prosecutor. i do not think the fact the former president is running for reelection is going to have any impact on this to liberation. the deliberation will be is this an indictable offense, is it clearly indictable, is there a significant quantum of proof beyond reasonable doubt, and how valid are the anticipated defenses? host: you brought up the special counsel, it is conducting its investigation of the referrals coming in from the justice department. is there any crossover between the two? guest: i think the special counsel's office will be staffed, in part, or stand chili, by justice department prosecutors who have already been not only sifting evidence,

but presenting evidence to a grand jury. the justice department has already done a lot of work before the handoff to the special counsel. negotiating with witnesses, presenting witnesses to the grand jury. it is not as if the special counsel is starting from square one, because it surely is not. host: let me follow-up. if the house delivers its report or evidence that is associated with that, can the special counsel take the evidence brought in from criminal referrals and use it in its own case? guest: very much so. that is the principal value of this series of evidence that is being turned over by the committee to the justice department. there are reams and reams of transcripts of sworn testimony that can be presented to a grand jury. there are reams of documents that can themselves be presented

to a grand jury, or form the basis for presentation to the grand jury. that, by the way, is why the justice department has been pressing the committee to turn over the transcripts before now, for reasons which are perplexing , the committee was reluctant to do that. now the evidence is being turned over by the committee to the special counsel. there are treasure troves of evidence that can be used in concrete fashion by the special counsel. host: when it comes to referrals from yesterday, will it be the attorney general merrick garland that makes the decision? guest: yes. there will be a recommendation by the special counsel, ultimately it will be the attorney general who makes the decision. host: let us start with mike in texas, republican line. you are on. go ahead. caller: good morning yes, mr. robbins, do you put a lot of

stock, or do you think there is a conversation to be had about the admission of evidence? when is the omission of evidence become part of the equation? guest: if there are emissions of evidence, if there is evidence exculpatory of the former president, i am not aware of it. one hears a lot that the committee did not focus on issues some on the others of the aisle wanted them to focus on, like deficiencies, supposedly, with the capitol police response, or the like. i guess i just do not think most people think that the issue here is whether there were malfunctioning walkie-talkies or enough capitol police officers on standby, or big enough padlock for the capitol. i do not think that is what the issue is. so, if there is evidence that x completes the president --

exculpates the evidence -- the president, that is evidence that should be presented to the special counsel. i am just not aware of what it is. i do not know any of us is aware of what it is at the moment. host: this is from brenda in indiana, pennsylvania. democrat line. caller: good morning. i think one of the most important things in the january 6 committee proved beyond a shadow of a doubt is that donald trump knew he lost the election. i am kind of disappointed the last public hearing the other day, that this was not the centerpiece of that public hearing. jason miller, bill stepien, pat cipollone, eric hirschman, bill barr, jeff rosen all part of

trump's administration, they all testified under oath that donald trump knew he lost the election. he admitted it privately. very furiously and begrudgingly, but he admitted it privately. in my opinion, anything donald trump did after that point in time is fraudulent and a crime. the stop the steal fundraising he did, the gofundme page, he knew there was no steel to stop. like i said, i think anything he did after he privately acknowledged he lost, anything he did after that, was criminal in fraudulent. host: thank you, brenda. guest: i actually agree that the evidence that the former president knew he lost the election is overwhelming. i also think, as i said, the evidence of corrupt intent on part of the former president at

various -- in conjunction with various steps he took, whether it is the phone call to the georgia secretary of state or the conversations with the former vice president, or other things. i think it is clear. when you are asking someone to find over 11,000 votes, come on, give me a break. that is stark evidence. that does not necessarily translate into anything close to a layup, if criminal charges are brought. that may give an example. the former president would say, no doubt if he is charged, look. i am not entitled to make a speech, i am not entitled to ask my supporters to demonstrate. i am not entitled to ask lots of different lawyers for their best legal opinion. of course i am entitled to do that. you can't put me in jail, you should not be able to put me in jail for that. that is the kind of defense you would expect to hear, if any of these particular four charges are brought.

that is not a defense to the various espionage act and related charges that are apparently being contemplated. with respect to the charges referred yesterday, that is the kind of defense, the kind of basket of defense you would expect to see the former president raise. they are not negligible defenses. host: one of the people commenting yesterday told us about the challenges ahead if this goes forward with jonathan, here is some of the case he made yesterday. i want your response. [video clip] >> there was no direct, new evidence of criminal act by the former president. that is not to say his conduct was not reckless or reprehensible, but that is not a criminal act. it was basically a rehashing of what we have seen in virtually every one of these hearings. they simply attach these referrals to it. the department of justice can

project the referral and to get nowhere, they can also take it to trial and look for a favorable jury in place like d.c.. i do not think these convictions, on this evidence, would likely be -- would likely withstand judicial scrutiny. the biggest problem are those that turn on the president's speech. that speech was protected under existing supreme court cases, like brandenburg. it would not meet the standard supreme court has set out for the criminalization of speech. that is my view. even if they were to seek out a conviction, they would have a hard time on appeal. host: one perspective, go ahead. guest: i disagree on some counts with what the professor said, i agree on other counts. i disagree this was a rehashing of old evidence, i think there was in and or is an amount of new evidence nobody knew about

-- an enormous amount of new evidence nobody knew about when the hearings began in may or june, that includes evidence from the inside circle he was advised he could not, should not do what he was doing, including, for example, the lawyers in mike pence's office who provided information and analysis that this was a bogus claim. the pressure tactics on the vice president, that is new. there is a lot more. so i disagree with the professor on that. i disagree that a charge, there is insufficient evidence to charge. i disagree that if you were convicted, charged and convicted, the evidence would be too thin to prevail on appeal. what do agree with him that the issue of speech, as i said before, is a live one. that is to say the former president can argue through his

lawyers, because he is quite unlikely to take the stand in his own defense, but he can argue all i was doing was urging my supporters to demonstrate. i was urging them to demonstrate enforceable terms. i used a phrase fight like hell, which is a phrase used all the time without people being indicted for it. i asked lawyers for their legal opinions, i asked lots of lawyers, even controversial lawyers. i am entitled to do that. i think what the professor indicates would be the defense utilized by the former president are the defenses he would use. i do not think they are negligible defenses, as i said before. host: jeffery robbins with us, let us hear from john in ohio, republican line. caller: nice to talk to you. let me say anybody who broke anything or assaulted anyone on that day should be prosecuted to

the full extent of the law. my biggest question is, when did the insurrection end and what stopped it? my theory it was actually just done for instagram snaps and once everyone had their instagram photos, they left. was there a pitched battle at some point where the capitol hill police fought them back, push them out and locked the door? if there was not, it was not in insurrection. it was just an opportunity for pictures. that is all. guest: unless we are living in the land of optical illusions, i think we saw the videotape of exactly what you say did not happen. there was very much a pinch battle, once all the evidence of it hours and hours of footage, from one angle or another. people were hurt, some people died. if the callers standard is was

there a pitched battle, and if there was, he satisfied there was an insurrection, we do seem to have pretty overwhelming evidence in the form of video that is exactly what occurred. host: this is a text from a viewer in arizona. can mr. robbins elaborate regarding potential exculpatory evidence? guest: actually, i can't. because i do not know with a x couple tori evidence is. let me give an example -- exculpatory evidence is. let me give an example. the call to the secretary of state of georgia, find me 11,000 votes, give me a break. if there is some exculpatory explanation for that, i am not aware of what it is. if there is some explanation for sitting there for 180 seven minutes while people's heads are being bashed in and all of your

advisors, or many of them are telling you to do something to stop in you do not, i do not know what that would be. i am not being flip, i am just saying you would expect if there was exculpatory evidence that someone would have offered it during the course of these hearings. not necessarily at the hearings themselves, but in commentary or otherwise by people on team trump. i just have not heard that evidence. host: another viewer off of twitter, they talk about the january 6 committee itself, but also there was no due process during the actual proceedings. can you elaborate on that? guest: i do not know what that refers to. there were people who were asked , subpoenaed to testify and answer questions. they refused to. the people who were subpoenaed and offered a chance to testify about what occurred, some of

them simply did not show up, told the committee to jump in the lake, only words that were not that polite. two have been indicted for contempt of congress, one has been convicted. i am thinking of bannon and navarro. as far as due process is concerned, why the former president himself was subpoenaed to come and answer questions, and declined. that is what due process is all about. the right to present your side of the story. people were given the opportunity to present their side of the story, some people declined to do that. i think one can draw the appropriate inference from why they declined to do that, but on the question of whether or not the former president was offered the chance to present his side of the story, i think it is clear he was given that chance and turned it down. host: from new jersey, independent line. caller: good morning pedro and

mr. robbins, thank you for c-span. i want to talk about what we do not know and what we do know. why was nancy pelosi not questioned? where is all this footage that we have not seen on what happened that day? mr. robbins, you look like an honest man and i'm going to ask you a question. do you think that committee was fair when there was really no republican representation? because we know adam kinzinger and liz cheney are not true republicans. now, i want to talk about what we do know. we know there are many people in washington that hate donald trump area -- trump. we know they did not want him to be president in 2016, we also know that when he became president and did such a good job straightening this country out, they made up their minds saying they would make sure he never got back in that white house.

i wonder if you could answer some questions, especially about the fairness of that committee. host: thanks for the call. guest: sure, thank you. as you may know, it is a bit ironic there are some who claim this was a partisan committee, because, as many will remember, the effort that was made was to have a bipartisan, evenly divided 9/11 like commission look into this. that was blocked by the republicans in the senate. so, had the democrats in the house who introduced the resolution to create that commission had their way, there would have been a 9/11 like commission split evenly among republicans and democrats. the reason we do not have that is not because of nancy pelosi, it is because the republicans in the senate blocked it. moreover, you may recall in

retaliation against liz cheney and adam kinzinger for even serving on the committee, they were censured by the republican national committee. the way that the committee turned out as it did is really a function of maneuvers that were made on the republican side. having said that, look, adam kinzinger and liz cheney are rockribbed conservatives. these are people who voted with donald trump on a vast majority of the time. these are not exactly leftists. so i hope that people will see when rockribbed conservatives like cheney ann romney -- and romney -- remember, there were seven republican senators who joined the 50 democratic senators in voting to convict donald trump the second time

when he was impeached on the single count of incitement insurrection. so i hope the people do not think this was a witchhunt or a partisan job, because i do not see it that way. i do not personally think the background of this committee or its work suggests it was a witchhunt. host: alabama, democrat line. hello. caller: yes, i would like to ask your panelist, your guest. jim jordan, andy biggs and kevin mccarthy, they were all asked for subpoenaed to come to congress to the january 6 committee to make their case. they chose not to do so. i had a friend i thought was innocent about something, i would be sure to go and testify

and defend him. they had a chance to do it and they would not do it. so, i just do not understand what the gripe is. they had their chance, but they blew it. thank you. guest: that does seem like a common sense inference to be drawn from the fact those members of congress refused to show up. it is a common sense inference to me from the fact the former president did not show up. it is not merely that, though that is important enough, as the caller points out. there was an attempt to kill any inquiry into these events. that attempt came from those who were supporters of the former president. what should we think about an attempt to kill an inquiry into what occurred? what should one infer about an attempt to prevent the facts from being disclosed? most people will draw an inference from that. so, i tend to agree with the

caller. host: going to be referred to the house ethics committee for the investigation as far as the work of the january 6 midi, taking a look at the referrals, if justice does anything with it, what is the potential penalty? guest: you mean for the congressman refused to show up? host: i'm sorry, the criminal referrals made yesterday by the committee. guest: so, with respect to the criminal referrals against the former president, there are jail terms that range all the way up to 20 years in the case of insurrection. incitement insurrection and disqualification from holding office. there are a couple of those charges that carry with them five-year terms, when i think carries a 10 year term and one a 20 year term, and disqualification. if the charges are brought, and

they will be brought if they are brought independently, not on the basis of this referral, special counsel will make the decision to charge or not charge and what to charge totally independently of what he is asked to do by the committee. by the way, of course, since the committee did not deal with the documents issue, the special counsel's consideration of potential charges under the espionage act, taking of classified documents, obstruction of justice associated with that, that is a separate matter, as well. but the maximum penalties, if there were a charge and the former president is convicted on these charges, ranges all the way up to 20 years. host: las vegas, republican line. caller: i think the january committee was a sham. they kicked jim jordan off the

committee, that is like playing in the super bowl and kicking tom brady off tampa bay. second of all, what about nancy pelosi's job when president trump requested 10,000 national guard? the last thing i want to ask, when they are reviewing all the evidence, they purposely left out or president trump said march peacefully. peacefully. there is no incitement in peacefully. thank you so much, sirs. guest: on the last point, the color pointed out if the former president is charged, absolutely his defense team will use the phrase peacefully. they will also point out places

where lots of other politicians -- i think they have done this by video -- have used phrases like fight like hell, and they will argue ultimately it was a forcible speech, hot tempered speech, maybe. but it was not a criminal act. i think you are right, that is something his team will point out. there is a lot of evidence of criminal intent that some would say override the insertion of the word peacefully, but you are right to pointed out. in terms of nancy pelosi, for the life of me, i am not sure what she has done wrong. she tried to induce the republican party to agree to a totally bipartisan commission of inquiry, like the 9/11 commission. she was blocked. i think the accusations against her are misplaced. host: mr. robbins, a viewer

asked if the justice department takes into consideration at all the toll it will take on the nation if we prosecute a former president? guest: it is such a good question. i think that the attorney general will say he can't take that into consideration. he has effectively said he will not take into consideration by saying he will proceed as the facts and the law dictate. having said that, of course that will find its way somehow into the thinking. one can make the counterargument that, on this evidence, given what occurred, given this quite un-joyous joyride that took america to the brink of having democracy crash, if you cannot indict now, as the expression goes, when can you? it is such a good question. my guess is that people will

deny to the death that that issue plays any role in their decision whether or not to indict, but my guess also is, one way or the other, it will find its way into the mix of calculations. host: independent line from california, hello. caller: i was just wondering, if i am not mistaken, wasn't eric holden still in contempt of congress for never showing up? second, like the lady said earlier, why don't they let out all the video? they are just letting out certain parts of the video, they do not see where the cops let everybody in. what about ray? he was there inciting the night before, it is just out of control. and q. -- thank you. guest: by definition, remember, this is 20 hours of presentation.

the committee has hundreds and hundreds, if not thousands, of hours of video, probably hundreds of thousands of pages of transcript. you can't present everything. of course, the committee had a view about what occurred, but goodness. the footage we have all seen of the deliberate crashing of windows, beating of cops, smashing in of entryways, that is not evidence of capitol police saying come on in, we would love to have you, would you like in order -- h'ordevours. it cannot be waived away of a violent assault on the capital, complete with people demanding where is nancy and hanging a

noose out for the hanging of the former vice president. host: another off of twitter, is there a separation of power issue with the referral? guest: no. the legislative branch of congress is not prosecuting. it is not purporting to prosecute. it is not engaging in a law enforcement function, that function resides solely with the executive branch, so there is not a separation of power issue. host: massachusetts, democrat line. go ahead. caller: i wanted to call and say couple of things you do not have to show up with the subpoena, the people were talking about -- all these white people can do

all this stuff, if black people did it, they would put them in jail. host: do you have a specific question about the investigation or committee work? caller: one of the things, trump should go to jail. that is one thing that should happen. running around for the last two years, let me tell you something. if you got arrested as soon as you've out of the white house, we would not have gone through this. this guy is trying to take over the country. you telling me about freedom of speech? host: do you have anything? guest: i do, i noted the reference to the subpoenas being disregarded. i do think that is a really important point. congress has an indispensable function to carry out its investigative power, it is a power that is recognized by the supreme court, it is a power that, although not identified in the constitution, has been deemed an implied power of congress.

if congress investigation and subpoenas can be disregarded, the ability of congress to carry out its function and serve the american people is significantly impeded. so i agree with the caller that the disregard of subpoenas, the willful disregard of the subpoenas, it is a serious problem and one which is going to be with us for a while. host: since you have been involved in congress and investigations, how does the congressional committee like the january 6 committee keep itself in check when investigating these things without letting politics get involved or in the way of investigating? i do not know if that makes sense or not, but is there a sense of keeping everybody in check? guest: it is a very important question. the short answer is, there is no way politics does not play a role in these investigations. they always do. to some degree, in fact to a considerable degree, these

investigations are self policing. that is to say, it is up to the members of the committee and the members of the leadership team to have a high regard for the traditions, the norms, the appropriateness, the gravity of a congressional investigation to keep things in check. for example, it used to be the time during the mccarthy era that people were required to take the fifth amendment publicly. now, it is you allow people to ar fifth amendment rights in a much more private setting, out of respect for people's reputations. there are a lot of examples where members of congress need to remember the power they have to damage people's reputations, to impose costs of various kinds , and approach these

investigations in a solemn way. i happen to think this committee succeeded in that. host: from arkansas, republican line. this is john. hello? one more time for john and arkansas -- in arkansas, hello? let us go to ralph and washington, d.c., independent line. caller: i am independent because i think both parties are full of it. but what i have seen recently really scares me. the information that came out of twitter about the fbi coordinating with twitter to sue press -- suppress news about the hunter biden laptop, to remove people against biden. since when does the federal authority and homeland security start getting involved, and what information is available?

that is socialism, communism, fascism. that scares me a lot more than trump's big mouth and biden. someone needs to talk about this, this is a very dangerous area we are going into. host: that is ralph in d.c. as far as the january 6 committee, i know it is early to talk about, but what do you think the legacy is and the imprint it will have on future similar investigations? guest: i think it has conducted itself and performed in a historic way. there were many people who either believed it would flop, or some cases hoped it would flop. that, i think, did not prove to be the case. i think, to a lot of people surprise, americans did follow

what went on. 20 and million people watched at least one hearing, that does not count people who are hearing about it a tertiary way. you can make a case that midterms were affected by peoples appreciation if there was a threat to democracy, they were saying the threat to democracy was a nonissue, would be a nonissue in the it looks as low that was not the case, that people did care more than they told pollsters. they will be remembered as a body that produced a sweeping quantum of evidence of wrongdoing and of jeopardizing the democracy that we all cherish. i know there will be people who will decry it, but it will really serve as a very important

historical marker for how close america came to losing democracy and the fact that we are not out of the woods yet. host: let's squeeze in one more call, tim in arkansas, independent line. we are running short on time, so go ahead. caller: your entire premise of the congressional was a presentation for her by a hollywood producer. none of this is based in fact. nancy pelosi should have been the first one to testify. the doj and fbi spied on republicans, spied on america's mayor, rudy giuliani, suppressed evidence. this whole thing has been a coup from the obama administration and the deep state, continued into buying -- into biden.

with all this instruction come here we are putting it out in front of the time they are going to pass another omnibus bill, trillions of dollars of thievery. host: have to leave it there. i apologize for that. guest: i am not quite sure i see it same way as the caller. the speaker tried to have this 9/11 commission and the fact that it didn't happen that way was not her fault. i think she conducted herself in a way that will land her a place in history. host: jeffrey robinson, former senate minority chief counsel and attorney for the district of maryland -- of massachusetts. thanks for your