Does the US need new laws to protect elections?

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0:35How has America shaped the world? I'm Asma Khalid, host of the Global Story podcast from the BBC. As the United States marks its 250-year anniversary, we've been exploring the surprising and often hidden ways the U.S. has shaped the modern world. And today on the show, we answer your questions about this moment and what to expect in the years to come. From the BBC, it's the United States at 2.50. Listen to The Global Story on BBC.com or wherever you get your podcasts.

1:09American presidents have always told lies. Think of Richard Nixon and Watergate. Think of Bill Clinton and sex. The current president says plenty of things, well, without evidence and plenty fear that it is becoming acceptable for politicians on both sides to spread falsehoods. So does it matter? How much do Americans care? And is there a solution that might hold lawmakers accountable for the lies that they tell in office? Welcome to AmeriCast. AmeriCast. AmeriCast from BBC News. You hear that sound? Oh, I think when I hear that sound, it reminds me of money. We didn't start this war, but under President Trump, we are finishing it.

1:52This is a big cover up and this administration is engaged in it. This guy has Trump Arrangement Syndrome. I have four words for you. Turn the volume up.

2:07Hello, it's Sarah in the BBC's Washington Bureau. And it's Justin in the worldwide headquarters of AmeriCast in London, England. And I should say it is five past three in the afternoon here in London on Thursday. And I, Sarah, am going to be joined by the guest today, which is a real pleasure. He's actually going to be here. He's not here yet, but he is Andrew Weissman. He played a very big part in Robert Mueller's investigation into the Russia interference in the 2016 election. He's got a new book out, which has this really interesting argument, which we are going to challenge him on, which suggests somehow that politicians could be held to account by law if their lies damage democracy.

2:46And when you look back, Sarah, at the various efforts that were made to hold Donald Trump to account by law in the run up to the 2024 election, I think it is fair to say that the jury is out on whether it works. Yes, yes. And I'm just running through a sort of mental rolodex now of all the politicians who could end up in trouble if lying in office and therefore potentially damaging democracy were to become a criminal offence. The courts could get very, very busy and not just in the United States, I think. And the issue, I suppose, the kind of the broader issue is whether, well, two things. Number one, whether law works or lawfare, as it's sometimes called.

3:27Can you, should you, in a democracy, be going after people in law? And there's a lively debate about that. And I say kind of flippantly that it didn't work with Donald Trump. But there are plenty of people who think it should have worked, of course, and also potentially might work in terms of impeachment, which is a slightly separate thing. But in terms of impeachment that might still be to come over the next couple of years or so. But then the other thing is, how would you have a new law that really brought people to account? And that's one of the things that Andrew Weissman wants to talk about.

4:02And I was saying that he has experience in this area. So not only is he a former federal prosecutor, but he did play a big part in the Robert Mueller investigation. I suppose we should kick off by reminding people about what that investigation was and why it was so important, so seminally important. although it didn't quite come up with the goods that many people hoped it would. Yes, what Donald Trump calls the Russia, Russia, Russia investigation. And he says that so often. That's what it's sort of now stuck in my head as as well. It was the attempt by former FBI director Robert Mueller to investigate Russian interference in the 2016 election when Donald Trump was first elected.

4:41It was controversial at the time. Donald Trump's absolutely furious that this investigation had been set up whilst he was in the White House. And he was also really, really worried that this could be the end of his presidency. He saw this as the equivalent of what happened to Richard Nixon or something, that this was going to really damage him. And he became obsessed by it. In the end, what Mueller found was that there had been coordinated Russian interference in the election, but he wasn't able to substantiate that it had been coordinated with the Trump campaign. But he also didn't completely clear them either.

5:13He said there were some questions around that and he hadn't been able to find the evidence. And so that has just eaten away at Donald Trump ever since. And Robert Mueller became a real hate figure of his. He died reasonably recently. And it's not often you're shocked by a social media post by Donald Trump. But when he said, I'm glad he's dead on the same day that Robert Mueller died, that was pretty shocking. Yeah. And they've also twisted it round to kind of face in the opposite direction, haven't they? So last year, the now former director of national intelligence, this is Tulsi Gabbard, who's very recently stepped down.

5:49She made an extraordinary allegation about Barack Obama, didn't she? Not only Obama, actually, several of his top officials as well. She said there was a treasonous conspiracy to highlight that Russian interference in 2016. Let's listen to what she alleged. When you look at the intent behind creating a fake manufactured intelligence document that directly contradicts multiple assessments that were created by the intelligence community, the expressed intent and what followed afterward can only be described as a years long coup and a treasonous conspiracy against the American people, our republic and an attempt to undermine President Trump's administration.

6:32Well, that sounds a little bit like Tulsi Gabbard's thinking of something similar to what Andrew Weissman's going to talk to us about, doesn't it? That basically trying to criminalise things that people did as a result of getting involved in politics here. So, I mean, that is very, very interesting. But it's exactly why this stuff doesn't work, isn't it? I mean, we'll put this to Andrew, but it just seems to me on both sides, as soon as you go down this path, you're in trouble, aren't you? Yeah, well, it's certainly going to get very, very complicated, but it's obvious to see why he's introducing this into the political discourse at the moment and why it's a particularly interesting idea, because it's not just over the Mueller-Russia investigation that there's issues around Donald Trump.

7:17There are lots and lots of things, he says, that are not factually accurate, that cannot be backed up by evidence that are what we would, you know, generally in common parlance say to be lies. Now, you know, there are all sorts of them every day. Some of them are unimportant. Some of them are just boastful, for instance, and maybe they don't really harm the fabric of democracy. But then there are some that are deeply insidious. And the big lie, of course, is which he continues to perpetuate, is that the 2020 election was stolen from him. that Joe Biden wasn't democratically elected, but there was a conspiracy to steal Trump votes and stop him returning to the White House.

7:55And a lot of people still believe it. That's a problem. People in public office, but also just members of the electorate, people who voted in 24, who'll be voting again in 2028, still believe that the system is fundamentally corrupt enough that the election could be stolen from Donald Trump. And investigations are still going on into that. We had an FBI raid of the election offices in Fulton County in Georgia just earlier this year, for instance, where they're still looking for evidence to try and prove that that crucial key state really voted for Donald Trump. Despite the fact that the votes were counted three times, counted by hand every single time it came up that Joe Biden was the person who had been returned by Georgia.

8:40But there's something deeply insidious about that lie about the 2020 election. It's what led to the Jan 6th riots, of course, in 2021. And it undermines the whole basis of American democracy. If you've got a substantial number of voters who just don't believe that the process works. And of course, it doesn't stop with what he said about past elections. This is, in a sense, why all of this is so important, isn't it? It is what he might do now in terms of future elections, including the one that's coming up this year. And he has repeatedly called, hasn't he, for elections to be nationalised. What exactly does that mean?

9:13Here he is in the Oval Office just a few months ago. Take a look at Detroit. Take a look at Pennsylvania. Take a look at Philadelphia. You go take a look at Atlanta. Look at some of the places that horrible corruption on elections. And the federal government should not allow that. The federal government should get involved. These are agents of the federal government to count the votes. If they can't count the votes legally and honestly, then somebody else should take over. And I wonder, Justin, who he thinks that somebody else should be, possibly the president of the United States. What he means when he talks about federalizing the elections is that at the moment, all 50 states run their own elections and their own process for counting the votes.

10:01They're supervised state by state. And then, of course, they all come in centrally. And eventually the Electoral College decides who has won the presidency. Donald Trump has talked several times about wanting to take this over, wanting the federal government of which he is in charge to run elections. And that really has worried a huge amount of people that this is part of some kind of greater plan to try to alter the outcome of elections. Because you've got somebody here who is saying things that are not true about the 2020 election, undermining confidence in it, but also wanting to change a system at the same time so that what happened in 2020, i.e.

10:37Joe Biden getting elected or Donald Trump not getting elected, couldn't happen again. And that people are really, really worried that he's wanting to change the rules to favour himself or his favourite candidate and would come up with something that wasn't true. Yeah, and it's worth saying people more broadly do think that honesty, ethics, the whole idea of politicians telling the truth has reduced. No surprise, I suppose, that they think that. But there was a Pew Research survey, wasn't there, relatively recently. So 56 % of US adults now believing that the overall level of ethics and honesty in politics has fallen since 2025.

11:17So quite a precipitate fall, in a sense, recently. And you've got that old thing, the Washington Post thing. And I know the Washington Post is, well, at least until Jeff Bezos took it over, isn't a great friend of Donald Trump. But they have this tally, didn't they? There's more than 30 ,000 tallied during the first term of all the false or misleading statements that Donald Trump personally has made. Absolutely. And there are ones that are just demonstrably not true. But then there's other ones where you wonder, does Donald Trump believe it, even though there's no evidence to back it up? And that's where you get into some quite interesting territory around what we do and don't, can and cannot say about him or indeed any other politician who we think is saying something that isn't true.

12:04So certainly we at the BBC will say some things are not true or are a lie, but we don't tend to call Donald Trump a liar because that means that we would have to understand what his intent was as well as what the facts are. And we would be in the business of calling other people liars as well. I mean, something I'm going to bring up with Andrew is Joe Biden. I mean, an absolutely plain case, isn't there? Remember when he said that inflation had been 9 % when he took office and he repeated that claim again and again and again. And it was debunked again and again. Inflation was actually, I think, between 1 % and 2 % when he came into office.

12:39So are we to call Joe Biden a liar as well? I mean, where does it, I think, almost in terms of political criticism and journalism, I'm not sure where labelling people in that way actually gets you, although it satisfies people when they hate a particular politician, it satisfies them and they kind of demand it too. But I think there are reasons not to do it. Yeah, and I feel like we say almost every week on America's that Donald Trump has rewritten the rules and done everything differently. But we don't know whether other people can get away with the same things that he has. And this is probably yet one more case of that where I don't think there's even his most fervent supporters think that everything he says is absolutely accurate, but they're perfectly happy to have somebody who's using mistruths around the place to try and make their case.

13:30will we then see that this is a new norm in politics that will spread internationally or when he goes and his particular individualistic way of doing things is gone from the stage will we once again, as you say, revert to business as usual in a slightly different way with a greater presumption that politicians are at least trying to tell you the truth. There are so many ways in which the political stage when Donald Trump has left it is going to be fascinating to see what kind of lasting imprint he has made on how politics is conducted, not just in America, but around the world. OK, that's a good moment at which to turn to our guest, who is the former federal prosecutor, Andrew Weissman, author of Liar's Kingdom, How to Stop Trump's Deceit and Save America.

14:15It's a book out now. I think I'm writing this thing on both sides of the Atlantic. And it looks at the dangers of politicians playing fast and loose with the truth. But of course, very much in the shadow of one particular politician. And it's a politician that Andrew Weissman has followed for some time because he is a podcaster as well. And one of the early aspects of me getting to know him, as it were, was on the airwaves when he was talking about the prosecution of Donald Trump. He had an entire set of podcasts based on those prosecutions of Donald Trump in the early days when it was thought that he might be prosecuted and might even go to jail long before the 2024 election.

14:53Anyhow, Andrew Weissman, so good to see you in person. It's great to be here. Yes, it is. I do so many podcasts where it's remote. It's really nice to be in the same room as somebody. Mentioning podcasts, I'm a real fanboy, and I'm going to bring this out right at the beginning because I was a big fan of prosecuting Donald Trump, not the actual doing of the prosecuting you understand because I went for the BBC, but your podcast that you did, Prosecuting Donald Trump, during all of those court cases that we talked about repeatedly on our podcast, you had so much detail and so much insight because of who you are and the stuff that you've done.

15:28Well, I had a great collaborator, Mary McCord, but both of us had worked for decades at the Department of Justice. What is the plan that you have? Because you come out in your book with a plan that I think will really interest people. It's a plan not just to stop Donald Trump, but it is a plan to stop anyone who wants to lie, what, anywhere in public office? Explain what you want. I love that you are focusing on the fact that it is not specific to Donald Trump. It could implicate sort of what he does, but it really would apply to anyone who is in elected office. And we have both a federal system and a state system.

16:09So it could apply to federal officials, presidents, Congress people, but also at the state level, governors and legislators within the 50 states of the United States. And in a nutshell, to cut to the chase, it is to when you have a material lie, not an opinion, not a mistake, but a material lie such as, and this is the example I use, that there was fraud in the election and I really won. And you could show that that is not true and the person knows it's not true, that it's criminalized. So how would you deal with Joe Biden saying inflation was 9 % when I came into office when it wasn't? It was between 1 % and 2%.

16:57Would he have been prosecuted? So having been a federal prosecutor for a very long time, what I would ask is, one, is it factually true or false? Just that sort of step one. Yeah. The other is, is it intentionally false? In other words, what did Joe Biden, whoever we're talking about, what did they know at the time? And was it just a mistake, a slip of the tongue? Did he repeat it? Exactly. Which he did. And so those kinds of things. And then what's this argument? for why he thought it was an okay thing to say. He has to make this argument in a court. Well, if you were charged. And so one of the ways, though, to cabin this, which I talk about, is that you can imagine a law that, in my view, sort of goes overboard.

17:47Our president has been reported to have made false statements about how he did as an undergraduate in school about the crowd size. Right, and you wouldn't do any of that. And those things do not have to be criminalised. Let me bring Sarah. Does that argument hold weight with you, Sarah? It makes lots of sense. And I think a lot of us could apply some kind of common sense test as to whether or not Donald Trump lying about previous achievements really, really mattered, as opposed to saying things that are not true about the 2020 election fraud. But what we're witnessing happening in the United States at the moment is the politicisation of all sorts of aspects of the justice system, even before we've got a law like this coming in.

18:35For instance, the latest news at the moment is that the Department of Justice is investigating E. Jean Carroll, the woman who sued Donald Trump for sexual assault and defamation. And now his Justice Department appear to be going after her, saying that she committed perjury in some of the statements that she made during that case. It looks, from the outside, nakedly political, as do a number of the other criminal investigations that are being pursued by the DOJ at the moment, like against James Comey, for instance, the idea that he was threatening the president's life when he tweeted a picture of seashells that said 8647.

19:11If you had legislation like you're proposing, Andrew, is it not a weapon for a politicized administration like the one we've got in office at the moment just to use this as another way of attacking opponents and perceived enemies? That's a great question. I actually address that because there's no question that if you create another potential tool for a corrupt administration, and again, I'm not speaking about just going forward in any sort of administration, that it can lie around like a Chekhovian gun, you know, where it's sort of there and you're sort of waiting to see when someone's going to pick it up and shoot somebody.

19:55and there are a number of responses to that. One is how you assess the current situation that we're in in the United States. If you think it's a pendulum swing and it's not that serious and it's not something that is a deep threat to democracy in the United States, then you might say it's not worth the risk that there really are, there are too many downsides to this idea. But I don't have that view. I have the view that I think certainly people, I think, in Europe looking at the United States are somewhat shocked by what they had thought of the United States and the rule of law. Not that America is perfect in any way, shape, or form, but that this is such a turnabout from what they thought the, what the ideals were that America was aiming for, even if they didn't always achieve it.

20:50Just before you joined us, Justin and I were talking about the difference between the way the BBC reports some of this exactly around the 2020 election, which we often call the idea that it was stolen a lie or the big lie, as it's known in America. We don't generally call Donald Trump a liar when he is talking about that, because that involves a whole extra step of understanding their motivation, their level of understanding, their level of knowledge, just as you have been explaining. But that's also quite a difficult thing to prove, isn't it? I mean, you quite correctly say it's used as a litmus test for people joining the cabinet or whatever.

21:28Donald Trump wants them to go out there and say the 2020 election was stolen. How do we know they don't believe that? I've spoken to people who've said, yeah, no evidence was produced in any of those court cases, but that's because they weren't looking for it properly. I just know in my gut it must have been stolen because Joe Biden was a terrible candidate. Donald Trump was a fantastic candidate. This is what people truly believe. There's no way Joe Biden could have beaten him. Therefore, I do believe it was stolen. You can't say that person is a liar, can you, if they seem to be believing what they're saying?

22:01No, just to be clear, that is an issue. What you're putting your finger on is an issue that criminal prosecutors have to deal with all the time. I've also been a defense lawyer. So I'm very aware if you cannot show as a prosecutor beyond a reasonable doubt that it's an intentional lie, then you have no business bringing the case and a jury, either you don't bring the case or you're going to lose the case if you do bring it. But there are ways to prove that. And that is where, as I mentioned, we have laws that say it's a crime to lie to Congress. It's a crime to lie to a federal prosecutor or the FBI.

22:42What we're talking about and what I address is saying something that is deliberately false. Can I bring up a kind of wider? So you're claiming it would work. We're a little bit sceptical. And I'm thinking particularly of how you'd prove it in the case of Joe Biden, where there will be plenty who say that he did lie, but there'll be plenty who say that he didn't. And it just seems to me to be unwieldy, to put it mildly, to get to a court case. But I suppose the other argument is that it doesn't work. And in a sense, you have that wonderful podcast, Prosecuting Donald Trump, that I used to listen to while I was walking my dog.

23:19And again and again, I think, oh, my goodness, this is really coming to something. And I used to say on our podcast, on America, we used to say, Sarah and I used to have these long discussions about, is he going to go to jail? Does he need, will he need to have secret service people with him in jail? How does that work? Can you go for office? And in a sense, everyone fooled themselves into thinking that that lengthy legal process involving several cases was somehow going to do him down. Actually, it did the opposite. I'm not enough of a sort of political analyst to know that. I try to stay in my lane.

23:54But I guess I would give you a counter example of prosecutions of political leaders that I think are healthy and necessary as a deterrent. So Bolsonaro was in Brazil, who is somebody I talk about the many similarities that there are to his conduct found by different courts to. our current president. He was criminally prosecuted for his participation in an insurrection. And before that, he was barred from running for office because of his false statements about the election. And it was necessary under Brazilian law to prove that they were intentionally false, that these were not things that, as to Sarah's point, that were honestly held beliefs in the The judges had to address that in their decision about why they thought there was sufficient proof that this was intentional.

25:00And I think if you don't hold people to account and you don't have even trials, which in the United States, as you mentioned, we had one state court trial, but the key trials, particularly the one about insurrection in Washington, D.C. that never saw the light of day. the message to politicians is that they are immune from the legal system. And I think that that is something that we are living through right now is that sense of no checks and balances, which is such an integral part to the structure or the intended structure of the United States. Let me finish, if I can, with this final thought about the political side of prosecution, which is impeachment and which Donald Trump has faced.

25:50And of course, he was impeached in the House of Representatives, but then goes through to the Senate. The Senate have to convict, and they didn't convict on either of the two occasions. He could be impeached again, couldn't he? It's entirely possible, particularly if the Democrats win the House back in the midterms. And it is then the job of the Senate, isn't it, to decide what to do. and it would have been the right thing to do if they felt strongly enough about it. And I can't remember the exact voting, but you think of January 2021 when they had an opportunity. The January the 6th had happened.