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Former Justice Department official Richard Donoghue on Jan. 6 probe

ARI SHAPIRO, HOST:

The committee investigating the January 6 attack on the Capitol will hold its next hearing tomorrow afternoon. That's a new development. The panel had not planned another hearing until next month, but now they say we'll hear, quote, "recently obtained evidence and witness testimony." Last week some of the most powerful testimony came from top Trump administration Justice Department officials. The second in command, Richard Donoghue, told the committee that senior officials had to tell the former president that he couldn't simply change the election outcome.

(SOUNDBITE OF ARCHIVED RECORDING)

RICHARD DONOGHUE: He responded very quickly and said, essentially, that's not what I'm asking you to do. What I'm just asking you to do is just say it was corrupt and leave the rest to me and the Republican congressmen.

SHAPIRO: And former acting Deputy Attorney General Richard Donoghue joins us now. Welcome to ALL THINGS CONSIDERED.

DONOGHUE: Thanks for having me.

SHAPIRO: How close do you think the country came to a constitutional crisis last January?

DONOGHUE: I think that there were a number of possibilities there that could have drawn us into a constitutional crisis, certainly if Vice President Pence had acted differently. And I think there were other sort of danger zones along the way. That said, I do think that one thing we should take away from this is that the institutions held. They did exactly what they're designed to do because the institutions are designed to avoid that.

SHAPIRO: They held under great stress. You described the president attempting to replace acting Attorney General Jeff Rosen with someone named Jeffrey Clark, who seemed willing to pursue Trump's false claims of election fraud. What did it take to talk Trump out of that decision?

DONOGHUE: As we described in testimony, it was about a three-hour meeting in the Oval Office. And the president was taking input from a variety of people. But we did talk the pros and cons of what would happen here. What are the real-world implications of putting that person, Jeff Clark, into the seat? And as I said, we were relieved that, at the end of the day, he did what we thought was the right thing.

SHAPIRO: The quote that stood out to me was - you said hundreds of people would resign, and effectively, he would be overseeing a graveyard.

DONOGHUE: That was a big part of the conversation to be sure - to explain to him what the real-world implications would be within the department. Certainly we went beyond that as well.

SHAPIRO: Despite the stand that you and others took in January, the Justice Department at that point had already seemed willing to help Trump allies. In 2020, the department rolled back its prosecution of former National Security Adviser Michael Flynn even though he had pleaded guilty in the Russia probe. Do you think you and others at Justice had done enough to resist political pressure from Trump by the time he was pushing his election lies?

DONOGHUE: Well, I wasn't involved in the Flynn matter specifically, so I can't really comment on that. But the reality is, at the end of the day, it was made very clear to the president that the department is not in any way a political actor and that the department's commitment is to the facts and the law.

SHAPIRO: One big question that's loomed over the January 6 committee and the current Justice Department is whether prosecutors should pursue a criminal investigation against the former president. Based on what you know, what you saw, do you think there is a sound legal case to be made that Donald Trump committed a crime?

DONOGHUE: I certainly don't have access to all the evidence they do. That said, I would certainly urge caution. You would need a very, very solid case before proceeding. I think criminal intent is required. And so you still need to prove that, at the end of the day, the person knew that they were up to no good. And it's a difficult thing in normal circumstances. It would be a particularly difficult thing with this personality, this president and these circumstances.

SHAPIRO: You said one of the lessons you take away from what happened in January was that the systems held. The institutions withstood the assault on democracy. But another lesson that one could take away from it is that the lessons that Donald Trump and his supporters and enablers learned in 2021 will be applied the next time around. Does that concern you? Do you think that's a legitimate fear?

DONOGHUE: It is something I'm concerned about. I think there are a lot of lessons learned across the board here. One of the criticisms was that these states had policies and procedures put in place, ostensibly in response to COVID, that were not approved by the state legislators and that the Constitution requires that the state legislature set the election procedures. And I leave it to the courts to decide that. But there's work to be done all around...

SHAPIRO: I mean, to the contrary, what we're seeing is people who endorse the big lie getting elected to statewide office, becoming...

DONOGHUE: Yeah.

SHAPIRO: ...Secretary of state, state legislators.

DONOGHUE: Yeah. It's an issue for concern - no doubt about it - but all the more reason for state legislators to be active and putting in place the very clear procedures in advance of any election.

SHAPIRO: Former acting Deputy Attorney General Richard Donoghue, a witness in the House Select Committee's investigation into the January 6 attack on the Capitol. Thank you for speaking with us.

DONOGHUE: Thanks for having me, Ari. Transcript provided by NPR, Copyright NPR.