 Thank you for joining us. Welcome. Good morning. Think Tech Hawaii, rule of law in the new abnormal. We have the honor of having with us today, Ben Davis, retired law professor at the University of Toledo School of Law and currently teaching online and otherwise for University of Illinois at Chicago School of Law, if I understand correctly. Doug Chen, formerly Hawaii's Lieutenant Governor, Attorney General and partner in one of our leading major law firms here. People with the experience to be able to address some really hard questions. So if we look at not just January 6, but what it was the product of and what it's part of and who's behind that and where they're trying to take it, what they're trying to do with that? What's really going on here? What's really at stake? Ben? Well, I think what is at stake is truly this question of authoritarianism versus democracy. People obviously dissatisfied with the results trying to get us all convinced that some kind of unfairness occurred and being willing to use any means necessary as part of their effort and having the financing, the sophistication, all the rest, the use of whatever technologies and media and all that to keep building that. And we see it being played out one in the various kinds of faudits or fake audits that are being pushed with regards to certain different states. I think there's an effort in Pennsylvania. There's an effort in Georgia. We had the Arizona thing, which ended up saying that there wasn't a problem. And even when the Arizona fake audit concluded there wasn't a problem, what happened is people said, see, proves that there was a problem. I mean, it's just the capacity to throw anything up against the wall as part of that. But it's a serious effort of having effective, restricting voting of people. On another level, there is what's trying to be done in terms of voting rights in Congress being blocked at this point. It reminded me of the early 20th century efforts to have anti-lynching laws passed by Congress and that there were elements of Congress at the time that kept preventing those from going forward within Congress when there was lynching in states and states were operating. Madison's double protection of the rights of the people is on the line right now, in terms of whether or not we're actually going to get some kind of addressing of this effort, which is relentless, sophisticated to subvert the election in the name of thinking that it was subverted already. It's kind of a fun kind of flipping the story where you're the subverter saying that it's the others which subverted it when they actually had the election. And that's what we're living in is this alternate reality argument that is being pushed very aggressively. And it's really something. Doug, as a former highly placed elected official as Lieutenant Governor and State of Hawaii and the head of law enforcement in Hawaii for the state, as appointed Attorney General approved by the Hawaii Senate, what concerns you most about what's happening now? Well, I think without question, all of our norms of the democracy are being challenged. I think we really saw that, especially in my view during the Trump administration, when there were so many different decisions that were made and different policy edicts that came down out of the White House that really caused everybody who was against those things to really think, wow, these are really pushed. This is really pushing the boundaries of what we thought the Constitution stood for. We thought we're normal checks and balances. How are we going to be able to push back against these things? Because we never expected anyone to take things to such an extreme. So these kinds of challenges against the elections and the insurrections that took place in January 6 and after that. All of that is ways of challenging kind of what our normal democratic ideals have been in terms of what the US government is and how it actually works. But Chuck, I actually wanted to bring it home a little bit because I was thinking this is a Hawaii program. And what has always struck me is how for as long as I've lived here in Hawaii, it's always felt like DC is 5,000 miles away. In other words, we're out here. Whatever happens out there in the House and the Senate and the White House and decisions that they make, it's so far removed that it really doesn't affect us as we step out into all of the local issues that we see and the good and the bad that we experience day to day. It always seemed very far removed. What really struck me is how in the last five or six years, what happens in DC or what comes out of there, all of a sudden became something that was very much at the forefront of our minds, even out here in Hawaii. Because we started to think, well, hey, a lot of what we were kind of thinking was just kind of going on in the background. That could actually eventually affect us out here. And I'm not at all meaning to suggest that people who lived here didn't care about what the federal government did. I think for many people, decisions and policies that come down from the federal government for all the time that Hawaii's been in the state, and even before then, has always been very, very serious to many individuals who are here. But I'm just saying for the regular rank and file, people are just living day to day. What happens in DC always seems so distant. And I think when we have challenges like these happen out there in DC that are so far beyond what most people would expect to hear, then I think that's where it starts to hit home. Hey, we here in Hawaii, we have to care about what we're seeing and hearing and to make sure that we're doing our part to be able to stand up for democracy and to advocate for it. So how does this impact us here in Hawaii and citizens at grassroots levels everywhere? I mean, I think for me, I think what you see is kind of what happened during the last presidential administration, where if you have someone taking a more authoritarian view of how they're supposed to run things, they're just saying it's my way. And if you're not with my way, you're wrong. You're wrong, you're a traitor to the country, which is very authoritarian. I mean, it's not a collegial discussion about, let's hear each other out and let's take a vote and let's try to work things out. It's very authoritarian. And I think once we, if we're being challenged with that kind of leadership, which is kind of where things are going, if extremes keep getting bold and everyone just keeps siloing into one side or another, you get to a point where people start feeling like democracy isn't going to work and it really does need to be force and just a very aggressive push on whatever, whoever's in charge gets to dictate and call the shots on everything. And I think that's when it affects people in Hawaii, because if those kinds of decisions are being made by the federal government, then it really does trickle down into all of the things that touch us day to day, whether it's decisions that are being made by the military or decisions about whether our relatives are able to come into the country or just basic civil rights in terms of whether people in marginalized communities are being taken care of or whether their needs are being addressed, all things hit up against Hawaii values. And I think that's where it's something that then becomes very relevant and important to all of us. Hey, Ben, your thoughts. I want to second what Delgis said, 100 or 1,000 percent, absolutely. One of the difficulties that I'm seeing with the norms being challenged is just the, for example, for the January 6th event, the process of trying to get a committee together to look at and how you had essentially a proposal that had been worked out between elements of both the Republican Democratic Party that when it came to the crunch were backed away from by the leadership of one of the parties. So then we come to the alternative January 6th committee, which is bipartisan, but the sense of someone who was a Republican on that committee being using Doug's language, a traitor in some sense to something when there's a part of me that remembers back to the Watergate committee back in the day, watching both Democrats and Republicans trying to get to the bottom of what had happened. And it's fascinating or it's disturbing to watch how intensely that kind of looking at people's traders has decreased. But there's another part of this that is coming through with this January 6th committee's work with their subpoenas, with the evidence that they're gathering, with the lack of the executive privilege assertion being followed through with the current president, which is that information is coming forward at a very accelerated pace that is raising issues about what were roles of members of the House of Representatives. I haven't seen for the Senate yet, but in creating and instigating what we saw January 6th. So literally the people being attacked on that day, being part sort of as the inside team, I saw one comment being made about an objection made by a representative named Gozar. And it being not just that he's making an objection in the process, but the objection is a strategic timing question for with regards to when people were attacking the building to keep people in the House of Representatives. To me, that is really very serious stuff. I'll talk about dozens of planning meetings. I see there's been a subpoena issued for a DOJ, for DOJ lawyer named Clark, I believe, and others about just the sort of the insider game playing to cause that event to happen. That is serious norm breaking if not just challenging kind of reaction or actions that I think that we have to think about. Finally, we have the Steve Bannon referral for flaunting a subpoena of the House committee involved in this. I mean, the notion of flaunting a subpoena is something that we we have to look at and we have the referral of that that just happened again on party lines essentially, but not totally that you would say gee whiz wouldn't people in the House of Representatives as a whole be a little bothered by somebody not supplying with a subpoena of the legislative body in the manner that it operates. You saw members of the House defending not doing it and some of the hearings that happen and we're kind of extraordinary to watch the interplay between the committee and other members of the House about that kind of thing. The last thing I would add if I can is if all of the already some of this is at the Department of Justice and at the Department of Justice, the part that we're seeing is that I don't 500 or so prosecutions going forward with regards to the people went in, but the next level of what the committee work is doing it seems to be about who financed it who organized it were they outside of government like Steve Bannon kind of person or were they inside of government and who were they. And then the question is how far up it goes. And then the question for the Department of Justice and I'm sure this is sitting on General Garland's head all the time is, is there a basis for a prosecution of people higher than those individuals who are at the low level who went in? And will they do it? And I want to emphasize that I've already hearing people talk about these as political crimes, when they are statutory crimes that are on the books that can be asserted against people even at higher levels, right? And I also want to point out that these two norms that I know in DC, from when I worked on torture stuff, one was that you criticize the policy, not the person. That's very strong across all of them. And so there's like going after a person in terms of criminal responsibility is something that there's kind of an aversion to in the political game, whether that is a norm that should be maybe broken a bit here. When there's literally been an attack on the house of the legislative constitutional branch is something that we have to ensure the hope that Garland is thinking about. The second one is this norm of I think it's 60 to 90 days before an election, the DOJ doesn't start anything that could affect the election. Obviously, we had that whole thing about the Hillary emails that happened with the, that I forgot the guy's name at this point, who came out right before that election in 2016 was in DOJ. Comey, yeah, the whole Comey thing, you know, and that was a whole lot of questions about him doing that. But we, does this mean that there's really sort of a deadline sitting out there that it's somewhere around August 2022, with regards to whether any more higher level prosecutions would happen? Also, is there a deadline possibly implicitly since I'm in Virginia and the Virginia election is being kind of a bellwether election, everybody that there's a hesitancy even to go ahead and send to a grand jury this question about banning and that after the referral from the house, I mean, what speed will be followed? I hope it's not the all deliberate speed of Brown, you know, but this issue of hitting at these levels are things that I'm just not sure what the answer is, but they are very important for us to think about at this time. So just coming off of my, oh, I'm sorry, since they coming up back here. Yeah, thanks. I wanted to pick up on something that I'm talking about whenever it just comes to the practicalities of who to prosecute. Without question, it's so much easier to just prosecute the physical actors who were in the building on January 6th, who the cameras saw overturning chairs, breaking things, causing mayhem. Those people as relatively low on the on the hierarchy of people who ended up being involved in this as low as they low level as they would be. It's much easier to prosecute those people for criminal trespass or for insurrection or to essentially throw the book at them. It's much harder. In fact, it's probably exponentially harder to connect all of the dots to be able to find the paper trail and all the communications that link up what would be a conspiracy charge and something that would be able to bring in higher level officials. And so I think then as a prosecutor, you're kind of left with, well, I don't want to say easiest, but what's the most pragmatic thing to do to be able to address what happened, to be able to bring about justice and satisfy people. I think one thing that happens is that when you prosecute people who are the physical people who entered the building and they're the ones who are getting in trouble. And I think one thing I can see happening is that their reaction is, hey, where was all the support we thought we were going to get? So-and-so was telling me so-and-so above them was going to give me a lot of support. I feel a little disillusioned now because that's... And so I think we're hearing about that disillusionment, which there's a certain practical effect that comes from that. Does that actually make it possible to then go after and prosecute the people who were at a higher level who probably were more culpable and were more involved because they manipulated the situation, use their powers, use their money that they had to be able to make this all possible? It's still going to be a challenge, I can tell you that. And so I can understand how at a practical level it's harder to be able to go after that. And even the higher you go, the more it becomes like Ben Davis was talking about it, it becomes more of a political thing. Well, you're just doing this because of politics. These people were just standing for a certain policy. And so I can see how these are all tough decisions that the U.S. Attorney General must make. So with the information that we have right now, Doug and Ben, in your view, is it important to go forward against the federal executive and legislative branch leaders who are indicated to have had focal roles, central roles, motivating roles in this attempt to overturn the election results? So I'd like to hit that. I mean, I think the best way to address people who are elected and placed into a position there is you vote them out. I mean, I think that's the easiest way is for the people then because as long as someone has been elected and has the cloak and the authority I was elected by the people to do what I was doing, any sort of attack on them becomes a political attack. And I think we kind of alluded to that where just going after the elected officials who are involved in Marjorie Taylor Greene's event, the Ben Cozars, the people who were involved there to do something like that, I think for, I don't know if he was a Attorney General, but I would think that anything that he does like that, he has to think, well, the reaction to that is you're just doing that for political reasons. And so I think for people who are trying to strategize about the best thing to do, one thing to do is to just go full on extreme. Everybody who got involved in this was committed treason. They were traders of the country and they need to be prosecuted as aggressively as they possibly can, which was kind of what the previous administration was doing against anybody who spoke against them, including elected officials or highly appointed officials. You got to ask yourself, what kind of road are we going down if we do that? That's the dangerous road that we're kind of hitting where we're not so much a democracy as we are just people who are really just taking sides and attacking each other. If you believe in the democracy model, what you're hoping for is the press is covering this, people are seeing what's happening, and then when it comes to an election time, you believe in the experiment and believe that people are going to vote out the bad actors that they don't want and put in the people that they do want to be able to represent their values. I think that's why I say this is a big challenge to our faith in the democratic model and to everything that we have loved so much about being to be part of the U.S. Okay. And I would, not having ever been elected to anything except student council, I think in high school at one point, I would just like to say that I understand that model of what we should do. And I particularly understand it because I can remember in the, I believe it was the 2004 election when the 60 minutes Abu Ghraib pictures came out. And there was a huge number of investigations about the torture regime that had been put in place post 9-11 by the Bush administration. And there were some legislative changes that were done at that time. And there were some low-level soldiers who were court-martialed for what they did at Abu Ghraib at the time. But going up the chain of the political actors, whether you were talking about Rumsfeld at the time or the general council or the lawyers who were writing the memos and DOJ with regards to what was quote unquote torture or not and all that stuff, that there was, you know, this thing, which I've described as basically not prosecuting the more higher-level people and in fact giving them passes for it, that he operated almost as de facto pardons. I mean, he rested pace, but Donald Rumsfeld died in his bed to sleep at 88 without having faced that day. And I know at the time, because I know people did this, that, for example, in Germany, there were efforts under international law to bring prosecutions of him for that. You see, in other countries, there were efforts. They didn't succeed. A lot of pressure in the United States not to have these prosecutions go forward. But what I'm trying to say is that there are sometimes that there are norms that are so broken and there are things that are done by high-level political types that my worry is that voting them out thing in this country operates essentially as a blanket pardon. In other words, they get to come back and run again. If you don't impeach them and have that part of the impeachment clause that says that, you know, they can't stand for office again, applies of even after they were in office, you can impeach, then at least the view of our Congress of Petrons I've just seen was that you only can impeach somebody when they're in office as a president or something like that. Well, you know, that could have been interpreted differently, which would have been to say after office, you could impeach so that they could never run again. That could have been a political solution. But again, the political part does not want to do that. And my worry is that it ends up giving a basically free reign to the person who wants to be the most extreme. And I wonder if there's got to be a limit at some point. My personal one was torture, right? Okay. But beyond that, I'm saying to people, well, you saw what happened on January 6. Is that, is that a limit? Because if that's not a limit that leads you to make those kinds of higher level of prosecutions, then that means that the limit is somewhere else. And where is the somewhere else limit, where you finally will put the law in. And you say, no, this is something that is too much. And that's where I worry about it. And I worry that all these norms that are operating right now are have will have the effect of ending up where you end up. I agree. But I'm not sure that that's been the best thing for us, at least in what I've seen in the torture side. And now what I'm watching, you know, kind of with shock at what I see that's going on in post the January 6, and since the election of November 2, in terms of the kind of how we're going to describe it, manipulation of all of us are trying to manipulate reality. And that being successful with a number of people who would put themselves in harm's way, thinking that they are doing the work of the president. You know, I think one of these members of Congress even floated the idea of a blanket pardon to these people going in. I mean, that's what's been reported in the newspapers. I mean, this is really outrageous. I'm sorry to use the word, if it doesn't seem to hit people here. I know there's a lot of crazy things that have happened in American elections over the centuries, okay? But at least for me in my time, that's kind of outrageous stuff, you know. So let me ask the question in our last minute here. If, as you indicate, the electoral process may be the more realistically practical achievable route to reform and change in response to subversive anti-democratic authoritarianism, how important is getting the truth out about this to that process? Will it be effective without that? Yeah, it won't be effective without it. I think it's absolutely critical. So without question, I think we're me and where Ben Davis and I are together on this. Should these people be prosecuted? Absolutely. I mean, for sure. I mean, so I don't mean at all to suggest that they should get a pass or that they should be given some sort of blanket pardon. What I'm hearing from, you know, I think the great insight that Ben Davis is providing is that when these people are, when nothing happens against them, then the practical effect is that it does feel like a pass. It feels like something where they can be able to run again or they can still be able to save face and to their followers that they still present themselves as somebody who's able to do something. I think a lot of it just ends up boiling down to well, what is it that we believe about people? What kind of faith do we have in the humanity of people, the ability for people to see the truth? It actually makes me think just even as my days as a lawyer, which is that what you have to believe is that you put something in front of a jury of 12 people, then they're going to be able to come to some sort of consensus decision where they are able to put their heads together and make a decision out of two very extreme points of view. It's the same goes for what we think about the democratic process and elections. I think to Chuck's point, getting back to that, I think the big challenge is that when people aren't hearing things correctly, if they're getting a lot of facts that are wrong or just hearing one side and not the other, then that becomes a big challenge. And so that's where I see another tipping point that's taking place or another big issue that is affecting us is our ability to be able to make a decision based upon good facts is being skewered by the polarization that we're getting in the different communications and just the way we're siloed in how we're getting things. I asked myself, who's watching this? I'm not talking about quantity of people, I'm talking about just the type of people that are watching this and making their decisions based on it. I think the more that we can be able to get good facts out there and to be able to have people understand things, then the more we will be able to get to where the people as a whole are able to make decisions that are democratic. And we're out of time for today, that's a great place for us to stop and pause, not to end. Come back, join us in two more weeks. ThinkTech's fundraising period is beginning this coming week. 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