Latest / The Oath and The Office / Trump’s Mafia Presidency, with Barbara McQuade

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Trump’s Mafia Presidency, with Barbara McQuade · The Oath and The Office

• 0:10
  Speaker 1: Hey, welcome to another episode of the Oath in the
• 0:12
  Speaker 1: Office podcast. I'm John Fegelsang, joined as always by professor
• 0:15
  Speaker 1: of political science at Brown University, author of The Oath
• 0:18
  Speaker 1: in the Office, and the man kicked out of Wu-Tang
• 0:20
  Speaker 1: Clan for being too hardcore, Professor Corey Bretschneider. It's good
• 0:24
  Speaker 1: to see you, sir.
• 0:25
  Speaker 2: Well, John, what a pleasure to show up here every
• 0:28
  Speaker 2: week to talk about these threats to democracy that won't stop.
• 0:31
  Speaker 2: We're going to have Barbara McQuaid, who's going to give us,
• 0:34
  Speaker 2: you know, this is somebody who prosecuted mob bosses, who's
• 0:36
  Speaker 2: going to talk to us about why the best analogy
• 0:39
  Speaker 2: to understand Donald Trump is not as a traditional presidential leader,
• 0:43
  Speaker 2: but as a mob boss. And of course, we're going
• 0:45
  Speaker 2: to talk about the stories of the moment, including the
• 0:48
  Speaker 2: Supreme Court's continued failure to stop this threat to democracy,
• 0:52
  Speaker 2: most recently by refusing to stop his clearly illegal attempt
• 0:57
  Speaker 2: to unilaterally build this ballroom.
• 1:00
  Speaker 3: But I also have to say in reference to.
• 1:01
  Speaker 2: The Wu-Tang reference, you know, that alone is reason to
• 1:05
  Speaker 2: show up here every week to hear these.
• 1:07
  Speaker 1: I think so as well. I know. Listen, a lot
• 1:09
  Speaker 1: of people don't know about your hardcore past in the
• 1:12
  Speaker 1: hip hop community. And I know the Ivy League hiring
• 1:14
  Speaker 1: committee doesn't want to hear about it. So I'm here
• 1:16
  Speaker 1: to fill in the gaps in your resume. Professor, you know,
• 1:19
  Speaker 1: people are paying more than four dollars a gallon for gas,
• 1:22
  Speaker 1: ridiculous amounts for groceries. Rent is crushing people. Home ownership
• 1:27
  Speaker 1: is out of reach for millions. Child care costs a fortune.
• 1:30
  Speaker 1: Medical bills can wipe out a family. America needs a
• 1:32
  Speaker 1: big gold leaf encrusted Russia inspired ballroom because that'll fix everything.
• 1:38
  Speaker 1: And the Supreme Court is going to let that happen.
• 1:41
  Speaker 1: The justices ruled five to four with a very strange
• 1:45
  Speaker 1: dissent by John Roberts. It was an unsigned order. And
• 1:48
  Speaker 1: the majority said that the historic preservation group that sued
• 1:53
  Speaker 1: didn't have any legal standing. So I have many questions
• 1:56
  Speaker 1: about this, Corey. They couldn't bring themselves to say the
• 1:58
  Speaker 1: ballroom was legal. They just more or less said, you're
• 2:01
  Speaker 1: not allowed to ask. You know, we're not saying Trump
• 2:03
  Speaker 1: is right. We're just saying nobody has standing to tell
• 2:06
  Speaker 1: him he's wrong. Did the Supreme Court actually rule that
• 2:10
  Speaker 1: Trump's ballroom is legal?
• 2:12
  Speaker 3: Definitely not.
• 2:13
  Speaker 2: They ruled on a procedural issue of standing that I'm
• 2:16
  Speaker 2: going to explain. But I want to first emphasize the
• 2:18
  Speaker 2: big picture theme here, which I think comes through in
• 2:21
  Speaker 2: your description. This is an attempt to build a symbol
• 2:24
  Speaker 2: of his own grandiosity. It's a ballroom that Vladimir Putin,
• 2:28
  Speaker 2: himself the head of a kind of mafioso state, would love.
• 2:32
  Speaker 2: And yet he wants to do it unilaterally in this
• 2:35
  Speaker 2: authoritarian way. And there's a substantive issue of the law
• 2:39
  Speaker 2: of whether or not he has the power to do it.
• 2:41
  Speaker 2: And my understanding, and I think it might be the
• 2:44
  Speaker 2: understanding of.
• 2:45
  Speaker 3: A majority of the court, is that he definitely does not.
• 2:48
  Speaker 2: Because government property, the property of the United States, is
• 2:52
  Speaker 2: under our Constitution controlled by Congress, not by the president.
• 2:56
  Speaker 2: And legislation backs that up. Now, having said that, what
• 3:00
  Speaker 2: you often see from this court, and now I'm going
• 3:02
  Speaker 2: to really answer your question in.
• 3:03
  Speaker 3: Depth, is that often they don't.
• 3:07
  Speaker 2: Decide cases on the merits, on the substance of what
• 3:10
  Speaker 2: the law is, but instead look for procedural ways to
• 3:14
  Speaker 2: to give him a victory.
• 3:15
  Speaker 3: Think of the immunity decision.
• 3:17
  Speaker 2: We never got to the question of the guilt or
• 3:19
  Speaker 2: innocence of the president. We were stopped instead by this
• 3:22
  Speaker 2: question of whether or not sitting presidents could be indicted
• 3:25
  Speaker 2: in the first place. And there are different ways for
• 3:28
  Speaker 2: the court to take a procedural view without saying in
• 3:31
  Speaker 2: the end whether or not somebody's violated the law. And
• 3:34
  Speaker 2: the way that they've done that here is known as
• 3:37
  Speaker 2: the doctrine of standing. So there's a case, for instance,
• 3:40
  Speaker 2: called Lujan, where the Supreme Court, much earlier than this case,
• 3:44
  Speaker 2: talked about the fact that you need an actual case
• 3:46
  Speaker 2: and controversy in which essentially somebody is harmed. You can't have,
• 3:50
  Speaker 2: in their words, third party standing. So it's not like
• 3:53
  Speaker 2: I could just come in and say, you know, the
• 3:55
  Speaker 2: president is doing something unconstitutional. There has to be a
• 3:58
  Speaker 2: harm to the person bringing the case. And so here
• 4:02
  Speaker 2: they're saying there is no standing. I think that's not right.
• 4:07
  Speaker 2: We could talk about the details. I'll say a couple
• 4:09
  Speaker 2: more sentences, actually. The group that brought the suit is
• 4:13
  Speaker 2: a nonprofit that is really devoted to historic preservation.
• 4:17
  Speaker 3: And one of its members was claiming the National.
• 4:20
  Speaker 2: Trust's job, essentially, is to protect these monuments. And one
• 4:24
  Speaker 2: other thing to say is you know, they're confusing us.
• 4:27
  Speaker 2: They're trying to really say to the American people, oh,
• 4:30
  Speaker 2: this is a technical legal thing. Let's just look away.
• 4:33
  Speaker 2: We haven't aided the president. We've just done this technical
• 4:36
  Speaker 2: legal thing. But in the end, you know, if our
• 4:38
  Speaker 2: rights as American citizens, if the power of our democracy
• 4:42
  Speaker 2: has been violated, there's got to be a way to
• 4:44
  Speaker 2: get that across. And what they're doing increasingly using this
• 4:47
  Speaker 2: doctrine of limited standing is taking our ability to appear
• 4:51
  Speaker 2: in court, to vindicate our rights, and to vindicate the
• 4:54
  Speaker 2: powers under our democracy, in this case, the power of Congress.
• 4:58
  Speaker 1: I mean, so the court did not say it's legal,
• 5:02
  Speaker 1: and yet the construction is allowed to continue. So Trump
• 5:07
  Speaker 1: didn't win because the court decided it was legal. He
• 5:09
  Speaker 1: won because the court decided the lawsuit wasn't allowed to
• 5:12
  Speaker 1: go behind the velvet rope, right? That's how they did it.
• 5:14
  Speaker 1: That's the Weasley way. Is that why Chief Justice Roberts
• 5:17
  Speaker 1: said the project is, and I quote, likely unlawful?
• 5:21
  Speaker 2: Look, if you read his dissent, it's partly about why
• 5:25
  Speaker 2: there is, you know, possibility of standing here for the
• 5:28
  Speaker 2: National Trust. And, you know, this is somebody who cares
• 5:31
  Speaker 2: about American history, who sees, I think, the aesthetic harm
• 5:34
  Speaker 2: that's being done here to our national monuments, and who
• 5:38
  Speaker 2: also sees the common sense idea that if the law
• 5:41
  Speaker 2: is being violated, and that's really playing the part in
• 5:44
  Speaker 2: a lot of procedural decisions. if the law is being violated, well,
• 5:48
  Speaker 2: there should be a way of vindicating that violation. There
• 5:52
  Speaker 2: should be a way of appearing in court. The hope here,
• 5:56
  Speaker 2: of course, is that the suit's going to be refiled
• 5:58
  Speaker 2: and that although there wasn't standing in this case, that
• 6:00
  Speaker 2: members of Congress, for instance, I think should be able
• 6:03
  Speaker 2: to bring the suit certainly and have standing because their
• 6:07
  Speaker 2: interests and powers as an institution have been violated. And
• 6:11
  Speaker 2: sometimes we do see members of Congress getting standing in
• 6:15
  Speaker 2: that way. So, you know, this isn't over by any means,
• 6:18
  Speaker 2: but the court is, you know, again, figuring out ways
• 6:21
  Speaker 2: to take his side without ruling on the law.
• 6:24
  Speaker 1: I mean, the DC Circuit had already concluded that Congress
• 6:27
  Speaker 1: exercises control over federal property. And that the administration didn't
• 6:31
  Speaker 1: have the authority to do all this. And this is
• 6:35
  Speaker 1: how they do it, right? Like Trump's like, can I
• 6:37
  Speaker 1: tear apart the White House and build a $ 400 million ballroom?
• 6:40
  Speaker 1: And Congress says no. And the lower courts say no.
• 6:42
  Speaker 1: And Robert says it's illegal. But five justices say, we're
• 6:46
  Speaker 1: not saying yes, but keep building.
• 6:49
  Speaker 3: Yeah.
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  Speaker 2: I mean, it's so often the case that, and we
• 6:52
  Speaker 2: see this in the shadow docket decisions, that.
• 6:55
  Speaker 3: Even when Trump is wrong, he's right.
• 6:57
  Speaker 2: And that rightly makes us suspicious of this Supreme Court,
• 7:01
  Speaker 2: because what it seems like, you know, if this was
• 7:03
  Speaker 2: just taken in isolation, it might not be the case,
• 7:06
  Speaker 2: but that they're using denial, for instance, of standing as
• 7:09
  Speaker 2: a way of vindicating the president and allowing him to
• 7:12
  Speaker 2: move forward. So even though, I mean, just, you know,
• 7:14
  Speaker 2: to capture your main point that you started with, he's
• 7:17
  Speaker 2: likely wrong on the law. I don't really see the
• 7:21
  Speaker 2: argument on the other side. To my mind, the Constitution
• 7:24
  Speaker 2: is Like in birthright citizenship, sometimes it's clear that the
• 7:28
  Speaker 2: property of the United States is in the control of Congress.
• 7:31
  Speaker 2: And yet what he's trying to do is a fundamental alteration,
• 7:36
  Speaker 2: a destruction of that property and reconstruction of it. Look,
• 7:39
  Speaker 2: it's one thing if he wants to decorate the Oval
• 7:42
  Speaker 2: Office with gold leaf or fake gold leaf or whatever.
• 7:45
  Speaker 2: I guess he claims it's a high-end gold leaf.
• 7:47
  Speaker 3: I don't want to get the facts wrong. That's fine.
• 7:50
  Speaker 2: But when you're altering the building, destroying it essentially and
• 7:54
  Speaker 2: rebuilding it, that looks like a clear violation of Congress.
• 7:57
  Speaker 2: And so, you know, trying to basically push the suit
• 8:00
  Speaker 2: away as long as they can on the grounds that
• 8:03
  Speaker 2: there's a lack of standing. I should say, too, there
• 8:05
  Speaker 2: is standing for an organization that is devoted to the
• 8:08
  Speaker 2: preservation of this national monuments, of the national aesthetic. And
• 8:14
  Speaker 2: this individual, to my mind, certainly could have had standing.
• 8:17
  Speaker 2: And as Roberts clarifies in his dissent, this wouldn't be
• 8:21
  Speaker 2: the first time that there have been similar instances of
• 8:25
  Speaker 2: standing being granted. And so the court is picking and
• 8:27
  Speaker 2: choosing here, unfortunately, to pick a winner that they like,
• 8:31
  Speaker 2: and that's Donald Trump.
• 8:32
  Speaker 1: But again, they're throwing so many lies at the wall
• 8:33
  Speaker 1: in the court. I mean, you know, they were saying
• 8:36
  Speaker 1: for so long, you should give us deference because it's
• 8:38
  Speaker 1: a national security argument, right? We have to have the
• 8:41
  Speaker 1: chief executive first waltz. Our lives depend on these chandeliers
• 8:46
  Speaker 1: folks and the marble floors you think of the children
• 8:48
  Speaker 1: right i mean they don't even acknowledge that they tried
• 8:51
  Speaker 1: the private funding argument that this changes the requirement for
• 8:54
  Speaker 1: congressional authorization they didn't even acknowledge that the dishonest arguments
• 8:59
  Speaker 1: that the white house was putting forward but i'm curious.
• 9:03
  Speaker 2: The second just on that point john it's so important
• 9:05
  Speaker 2: the second you hear national security in regard to an
• 9:08
  Speaker 2: assertion of presidential authority And think of Nixon's claims that
• 9:14
  Speaker 2: a lot of what he was doing was based on
• 9:16
  Speaker 2: national security, even though it had.
• 9:17
  Speaker 3: Nothing to do with it. That's when you start to
• 9:20
  Speaker 3: call BS.
• 9:21
  Speaker 2: And the facts really just don't support the president in
• 9:23
  Speaker 2: this case. There was a bunker underneath the White House.
• 9:27
  Speaker 2: And this destruction and creation of the ballroom wasn't a
• 9:30
  Speaker 2: national security.
• 9:31
  Speaker 3: Issue to help the bunker.
• 9:33
  Speaker 2: It was obviously, as he says in his public statements,
• 9:36
  Speaker 2: to further his own idea of what beauty, misguided idea of.
• 9:39
  Speaker 3: What beauty is.
• 9:40
  Speaker 2: And that would be one thing if he had the
• 9:42
  Speaker 2: power to do it, but that's the power of Congress.
• 9:44
  Speaker 2: If he wanted to build this ballroom, there was a
• 9:46
  Speaker 2: way to do it. It was to get authorization from
• 9:48
  Speaker 2: the body that actually under the constitution could give it
• 9:51
  Speaker 2: to him.
• 9:52
  Speaker 1: God, I'm so tired of like talking about this ballroom.
• 9:55
  Speaker 1: I'm so tired of this Marie Antoinette reality we're living in, but,
• 9:59
  Speaker 1: but I got to ask you a couple of dumb
• 10:01
  Speaker 1: legal questions before I get off it. I mean, does
• 10:03
  Speaker 1: allowing construction to continue while there's still litigation in the
• 10:08
  Speaker 1: courts create what you lawyer folks call a facts on
• 10:11
  Speaker 1: the ground problem?
• 10:12
  Speaker 2: Well, obviously there is a question of facts on the ground,
• 10:16
  Speaker 2: but you could have an injunction that you know, if
• 10:19
  Speaker 2: members of Congress, for instance, are able to get standing
• 10:21
  Speaker 2: and win this case that requires putting it all back.
• 10:25
  Speaker 2: And I think that you can't allow a bad actor
• 10:28
  Speaker 2: like Donald Trump to create an emergency and then say, hey,
• 10:32
  Speaker 2: there's an emergency or to create facts on the ground
• 10:35
  Speaker 2: and then claim that there's no way to repair it
• 10:37
  Speaker 2: because it's a done deal.
• 10:38
  Speaker 3: You know, the reality is, you know, this is a real.
• 10:41
  Speaker 2: Estate mogul who's fond of bending the rules and in
• 10:45
  Speaker 2: real estate just to to go into his terrain. If
• 10:48
  Speaker 2: you build the building too high and you're violating the
• 10:51
  Speaker 2: zoning restrictions, it might cost you a lot of money.
• 10:53
  Speaker 2: But yeah, you could be asked to take it off.
• 10:56
  Speaker 3: Now, sometimes that doesn't happen.
• 10:57
  Speaker 2: There's a famous case actually on the Upper West Side,
• 11:00
  Speaker 2: and I believe it's the building that's in succession, which
• 11:03
  Speaker 2: really adds to it, in which they built too high
• 11:06
  Speaker 2: and they made that argument. In that case, my understanding
• 11:09
  Speaker 2: is they were allowed to basically continue and violated the
• 11:12
  Speaker 2: zoning requirements. But a court can make a more sensible decision,
• 11:17
  Speaker 2: which is you intentionally violated the law. They know that
• 11:20
  Speaker 2: they're violating the law.
• 11:21
  Speaker 3: They're on notice.
• 11:22
  Speaker 2: They know that there's this argument about Congress's power and, well,
• 11:26
  Speaker 2: fact of Congress's power. So being told to put it
• 11:29
  Speaker 2: back through a judicial ruling is still a possibility.
• 11:33
  Speaker 3: It will cost money.
• 11:34
  Speaker 2: Likely, of course, it's going to be money that the
• 11:36
  Speaker 2: taxpayers pay, unfortunately.
• 11:38
  Speaker 3: But you know what?
• 11:39
  Speaker 2: It's worth it to erase the memory of Donald Trump
• 11:41
  Speaker 2: from our national White House, from our national monuments.
• 11:45
  Speaker 1: I mean, I just, I just, I don't know. Could
• 11:48
  Speaker 1: this ruling somehow expand, Professor, to presidential power beyond Trump
• 11:53
  Speaker 1: in this particular ballroom?
• 11:55
  Speaker 2: Well, the wider issue, which, you know, I noted, is
• 11:58
  Speaker 2: that it's an example of why it sometimes, even if
• 12:02
  Speaker 2: a president is violating the law, why one of many
• 12:05
  Speaker 2: reasons why stopping him in court is very difficult. So
• 12:09
  Speaker 2: a president, for instance, who commits a crime, there is
• 12:11
  Speaker 2: now a decision, one out of thin air, that says
• 12:14
  Speaker 2: even a former president can't be prosecuted in regard to
• 12:18
  Speaker 2: his official duties.
• 12:19
  Speaker 3: Now, there are ways of overcoming it. For instance, it's
• 12:21
  Speaker 3: a presumption. It has to be within the outer.
• 12:24
  Speaker 2: Perimeter of official duties, but it's certainly deeply protective of
• 12:28
  Speaker 2: a president. It protects Donald Trump, for instance, in this case,
• 12:31
  Speaker 2: from being sued almost certainly for his decisions here because
• 12:35
  Speaker 2: those lawsuits would be stopped by a case called Fitzgerald,
• 12:39
  Speaker 2: which gives immunity to presidents from civil cases in regard
• 12:43
  Speaker 2: to his official duties.
• 12:44
  Speaker 3: And he would say, you know, the creation of this
• 12:47
  Speaker 3: ballroom was his official duty.
• 12:49
  Speaker 2: So there are a lot of ways in which presidents,
• 12:52
  Speaker 2: even when they're acting in ways that are illegal, can't
• 12:56
  Speaker 2: be stopped. Immunity is one. And then standing is another.
• 12:59
  Speaker 2: Who has the power to stop them? Not any citizen.
• 13:02
  Speaker 2: That's clear under Lujan, under this case. And what really
• 13:07
  Speaker 2: is going to become tragic is I am predicting and
• 13:10
  Speaker 2: I think we will see members of Congress trying to
• 13:13
  Speaker 2: stop this ballroom, trying to get standing.
• 13:16
  Speaker 3: And if this court refuses.
• 13:18
  Speaker 2: That, then we've really got a problem, because if Congress
• 13:21
  Speaker 2: can't assert its own power and stop a president violating it,
• 13:24
  Speaker 2: we're in real trouble.
• 13:25
  Speaker 1: OK, well, meanwhile, let me talk about Stanford, because this
• 13:28
  Speaker 1: lawsuit was brought by the Free Speech Group Foundation for
• 13:30
  Speaker 1: Individual Rights and Expression. or FIRE, on behalf of the
• 13:34
  Speaker 1: Stanford Daily, the newspaper that showed that these student journalists
• 13:37
  Speaker 1: were facing a lot of demands they censor themselves and
• 13:41
  Speaker 1: were withdrawing stories over fear of government retaliation.
• 13:44
  Speaker 3: And U.S.
• 13:45
  Speaker 1: District Judge Noel Wise just ruled, 90-page decision, that the
• 13:49
  Speaker 1: Trump administration broke the First and Fifth Amendments by weaponizing
• 13:52
  Speaker 1: immigration laws to deport international students just because they criticized,
• 13:58
  Speaker 1: not Judaism, but the civilian government of Israel's actions in Gaza.
• 14:03
  Speaker 1: What exactly did the Trump administration do that Judge Wise
• 14:07
  Speaker 1: found unconstitutional?
• 14:08
  Speaker 3: Well, it's part of a pattern.
• 14:10
  Speaker 2: They didn't just do it in the Stanford case. I
• 14:12
  Speaker 2: think the most famous one that we've talked about in depth,
• 14:14
  Speaker 2: and this is really the same issue as the Khalil
• 14:16
  Speaker 2: case in New York, Columbia. Khalil, of course, was a
• 14:19
  Speaker 2: representative of Palestinian protesters negotiating with Columbia. And at first,
• 14:25
  Speaker 2: the administration was saying things about, you know, that they
• 14:28
  Speaker 2: hinted that there was illegal action or something. But eventually,
• 14:32
  Speaker 2: we saw through their briefs that what they were saying,
• 14:35
  Speaker 2: and I'm bringing this up because it's exactly the same
• 14:37
  Speaker 2: thing that they're arguing in the Stanford case, in which
• 14:40
  Speaker 2: they've been stopped again, is that if you're not a citizen,
• 14:44
  Speaker 2: you don't have First Amendment rights.
• 14:46
  Speaker 3: You don't have free speech rights.
• 14:48
  Speaker 2: And unfortunately, there is a case actually also involving Stanford
• 14:52
  Speaker 2: called Mandel, which in which a lecturer was coming in,
• 14:56
  Speaker 2: a Marxist lecturer was coming into the country to give
• 14:59
  Speaker 2: a lecture in Stanford and was successfully kept out. And
• 15:02
  Speaker 2: what the court said there is if you're outside the country,
• 15:05
  Speaker 2: you don't have a First Amendment right. Now, this is
• 15:08
  Speaker 2: going way beyond that because, of course, we're talking about
• 15:11
  Speaker 2: legal residents. These aren't undocumented people. They have a right
• 15:15
  Speaker 2: to be here. And yet what the administration is saying
• 15:17
  Speaker 2: is if we don't like your speech, even though the
• 15:20
  Speaker 2: First Amendment Free Speech Clause protects all opinions, all viewpoints,
• 15:23
  Speaker 2: If we don't like what you're saying, even if you
• 15:25
  Speaker 2: haven't committed.
• 15:26
  Speaker 3: A crime, we can throw you out.
• 15:30
  Speaker 2: So, you know, pro-Israel speech or pro-Palestinian speech, you know,
• 15:35
  Speaker 2: it's not just about that topic.
• 15:36
  Speaker 4: It's anything that they don't like. That's their claim. That's
• 15:39
  Speaker 4: criticizing the president, for instance. It's not that the government
• 15:42
  Speaker 4: was threatening to deport them. It's that the government's reason
• 15:45
  Speaker 4: for threatening to deport them was their political speech. And
• 15:48
  Speaker 4: we've talked about this a lot. The First Amendment exists
• 15:51
  Speaker 4: not to put limitations on citizens, but on power itself.
• 15:55
  Speaker 2: Right.
• 15:56
  Speaker 1: I mean, the First Amendment protects non-citizens, correct, Corey?
• 16:00
  Speaker 2: You know, when you read it, and that's always where
• 16:02
  Speaker 2: we start is with the text. it doesn't use the
• 16:05
  Speaker 2: word citizen in the First Amendment. It talks about a
• 16:07
  Speaker 2: limit on government power and the phrase Congress shall make
• 16:11
  Speaker 2: no law, abridging the freedom of speech.
• 16:13
  Speaker 3: That's not about citizens.
• 16:15
  Speaker 2: It's about the fact that in a democracy, we have
• 16:18
  Speaker 2: to be open to hearing all arguments and to hearing
• 16:22
  Speaker 2: them from citizens and non-citizens alike, because there has to
• 16:26
  Speaker 2: be a calling to account of government power. And in fact,
• 16:29
  Speaker 2: we often see in shutdowns of free speech, the targeting
• 16:34
  Speaker 2: of non-citizens. So as you know, I often talk about
• 16:36
  Speaker 2: the Sedition Act, which John Adams had passed, signed, and
• 16:40
  Speaker 2: used to shut down the free speech rights of citizens.
• 16:44
  Speaker 2: And yet that was combined with the Alien Acts, which
• 16:47
  Speaker 2: were essentially the deprivation of rights of non-citizens. And if
• 16:51
  Speaker 2: it's non-citizens calling leaders to account, that's supposed to be
• 16:54
  Speaker 2: part of what a democracy is. It helps to limit
• 16:57
  Speaker 2: government power that's illegitimate. And yet they don't like that.
• 17:01
  Speaker 3: They don't have a democratic idea of government.
• 17:03
  Speaker 1: But this is what they seem to be doing, right?
• 17:05
  Speaker 1: Here's the concept to me is like if the government
• 17:08
  Speaker 1: can't legally imprison a person for saying something the government dislikes,
• 17:13
  Speaker 1: they can accomplish essentially the same thing by threatening that
• 17:17
  Speaker 1: non-citizen with deportation or with something worse for your newspaper.
• 17:22
  Speaker 1: I mean, it's stochastic self-censorship, isn't it?
• 17:25
  Speaker 2: They're not saying we're going to put you in prison
• 17:27
  Speaker 2: because they know that they would be stopped.
• 17:29
  Speaker 3: That's clear punishment.
• 17:30
  Speaker 2: I think even for a non-citizen, it would be a
• 17:32
  Speaker 2: violation of the First Amendment free speech right.
• 17:35
  Speaker 3: But instead, what they're doing is saying, well, immigration law
• 17:37
  Speaker 3: is different. And notice this case that I mentioned.
• 17:40
  Speaker 2: If you're coming from outside the country, you know, OK,
• 17:43
  Speaker 2: you don't have a right to come in. And now
• 17:45
  Speaker 2: they're just saying this is just immigration policy. It's not punishment.
• 17:49
  Speaker 2: And so deportation is analogous in many ways to not
• 17:52
  Speaker 2: letting somebody in. The problem with that, of course, is
• 17:55
  Speaker 2: that's not what our Constitution says. You know, these people
• 17:57
  Speaker 2: are in the United States. There's supposed to be a
• 17:59
  Speaker 2: limit on the United States government. And yet what the
• 18:02
  Speaker 2: Trump administration is trying to do is to strip away
• 18:06
  Speaker 2: entirely the right to criticize them from non-citizens. I should say, too,
• 18:10
  Speaker 2: it's part of the attack on universities because a lot
• 18:13
  Speaker 2: of professors, a lot of students, a lot of graduate students,
• 18:16
  Speaker 2: and that's the case in both the Khalil case and
• 18:18
  Speaker 2: the Stanford case, you know, aren't citizens. And that's why
• 18:21
  Speaker 2: they're trying to do what they're doing. I want to talk, too,
• 18:23
  Speaker 2: about the fact that there have been heroic judges pushing
• 18:26
  Speaker 2: back in the Khalil case, although there was a procedural
• 18:30
  Speaker 2: way in which he was undermined. There's an amazing judge
• 18:32
  Speaker 2: in New Jersey who said, you know, we're not going
• 18:36
  Speaker 2: to allow the government to strip the rights of non-citizens
• 18:40
  Speaker 2: entirely to free speech. And just because you're not a citizen,
• 18:42
  Speaker 2: that's not what I've been saying. That's not what the
• 18:45
  Speaker 2: clause is about. Now, we're seeing that judge, by the way,
• 18:48
  Speaker 2: was undermined on appeal because the idea was immigration— courts
• 18:53
  Speaker 2: work differently, immigration cases work differently, and he shouldn't have
• 18:56
  Speaker 2: had jurisdiction. Well, now we have another judge who's standing
• 18:59
  Speaker 2: up and saying, I don't think so. You can't just
• 19:01
  Speaker 2: strip the rights of non-citizens away. One tie-in with the
• 19:05
  Speaker 2: ballroom case is notice that point about stripping away for
• 19:09
  Speaker 2: procedural reasons somebody who, a judge, who might be making
• 19:13
  Speaker 2: a really important substantive law point. Again, that's often how
• 19:17
  Speaker 2: our rights are eroded, through the nuance and subtlety and maybe,
• 19:21
  Speaker 2: you know, the hope of the people violating our rights
• 19:24
  Speaker 2: is that people will find it too difficult and boring
• 19:26
  Speaker 2: to pay attention.
• 19:28
  Speaker 1: So let me ask one more question on this, Corey,
• 19:30
  Speaker 1: because I know we have to go to a break soon,
• 19:31
  Speaker 1: but how important is the concept of viewpoint discrimination here?
• 19:36
  Speaker 1: If the government, say, allows a foreign student to stay
• 19:39
  Speaker 1: in the U.S. while they're praising American foreign policy, but
• 19:43
  Speaker 1: then they threaten another student with deportation for criticizing that policy,
• 19:49
  Speaker 1: is that not an obvious First Amendment problem?
• 19:52
  Speaker 2: Well, John, as is often the case on the Oath
• 19:54
  Speaker 2: in the Office podcast, you get right to the point.
• 19:56
  Speaker 2: You know, really, that question gets to the core of
• 20:00
  Speaker 2: what free speech is about. And what it's about is
• 20:02
  Speaker 2: the government isn't supposed to be picking and choosing, especially
• 20:06
  Speaker 2: when it's punishing or deporting people. based on the opinion
• 20:09
  Speaker 2: that they like or don't like. And the phrase in
• 20:13
  Speaker 2: the law, the doctrine, is called viewpoint neutrality. You can't
• 20:17
  Speaker 2: engage in viewpoint discrimination. In other words, you can't pick
• 20:20
  Speaker 2: and choose the opinions that you like or dislike and
• 20:23
  Speaker 2: treat people well or badly depending on it.
• 20:26
  Speaker 3: And yet that's exactly what's going on here.
• 20:28
  Speaker 2: It really is an attempt to revoke, and I don't
• 20:30
  Speaker 2: want to mince words here, our right to free speech.
• 20:34
  Speaker 1: Well, when we come back, let's talk about mail-in voting
• 20:36
  Speaker 1: and executive orders and presidential power, because it's still getting
• 20:40
  Speaker 1: scary and everybody listening needs to go check as soon
• 20:43
  Speaker 1: as you can and make sure that your voter registration
• 20:45
  Speaker 1: is still intact. Back in just a moment on The
• 20:47
  Speaker 1: Oath in the Office.
• 20:52
  Speaker 5: Hey all, Glenn Kirshner here. So friends, I hope you'll
• 20:54
  Speaker 5: join me on my audio podcast, Justice Matters. Do you
• 20:59
  Speaker 5: care about ethics in government, criminal justice reform, a conflict-free
• 21:04
  Speaker 5: federal judiciary? I thought so. On Justice Matters, we take
• 21:09
  Speaker 5: on issues involving the need to reform our government and
• 21:13
  Speaker 5: its institutions. And we talk about real, achievable reform.
• 21:19
  Speaker 1: I hope you'll join us.
• 21:20
  Speaker 5: Look for Justice Matters wherever you usually get your podcasts.
• 21:29
  Speaker 1: Welcome back to The Oath in the Office. I'm John
• 21:31
  Speaker 1: Fuglesang along with Professor Cory Bretschneider. Cory, last week we
• 21:35
  Speaker 1: saw a judge again halt Trump's executive order limiting mail-in
• 21:38
  Speaker 1: voting in the midterms. And can I just say nothing, Cory,
• 21:41
  Speaker 1: says election integrity like trying to make it harder for
• 21:44
  Speaker 1: other people to vote the exact way you like to vote, Mr. President.
• 21:48
  Speaker 1: I mean, this guy, Corey, he keeps putting out these
• 21:51
  Speaker 1: election orders and courts keep stopping them. I don't think
• 21:56
  Speaker 1: James Madison ever imagined his beloved Constitution playing whack-a-mole like this.
• 22:00
  Speaker 1: But the Supreme Court now paused the injunction, allowing the
• 22:05
  Speaker 1: administration to proceed with this executive order that will impose
• 22:08
  Speaker 1: restrictions on mail-in voting to make it harder for some
• 22:12
  Speaker 1: Americans to exercise a right. 6-3, to be expected. And
• 22:17
  Speaker 1: they're going to let him do this. The court didn't,
• 22:20
  Speaker 1: as I understand it, rule that the president has constitutional
• 22:22
  Speaker 1: authority to rewrite state election procedures. It just said, like
• 22:26
  Speaker 1: in the previous case, the challenge was premature. Is that
• 22:30
  Speaker 1: the crucial decision? Once again, they're saying we're not saying
• 22:32
  Speaker 1: Trump's right. We're saying we can't say the challenge is valid.
• 22:37
  Speaker 3: Right. Trump administration, let's sort of start from the beginning. Please.
• 22:41
  Speaker 2: What they've been claiming is that they have the authority
• 22:45
  Speaker 2: over the post office in the same way that the
• 22:47
  Speaker 2: president of the United States has the authority over a
• 22:50
  Speaker 2: secretary working in his office. That if he says, you know,
• 22:53
  Speaker 2: he'd like a black ballpoint pen.
• 22:56
  Speaker 3: That he has a right to make that choice. Right.
• 22:58
  Speaker 2: Now, his claim is that the post office is part
• 23:01
  Speaker 2: of the executive branch. And so he has the ability
• 23:04
  Speaker 2: to come in and as he wishes, to tell them
• 23:08
  Speaker 2: to stop the fraud that he sees. And his claim
• 23:12
  Speaker 2: is that there are these lists that my understanding is
• 23:15
  Speaker 2: really based on the fact that somebody is a naturalized
• 23:17
  Speaker 2: citizen as opposed to a natural born citizen, that he
• 23:21
  Speaker 2: can give these lists to the post office and essentially
• 23:23
  Speaker 2: tell them not to deliver the ballots. Now, when there
• 23:27
  Speaker 2: was an attempt, he was announcing that he was going
• 23:30
  Speaker 2: to do this, there was a lower court decision that said,
• 23:33
  Speaker 2: I don't think so. There are rules that protect the
• 23:36
  Speaker 2: rights of voters. And by the way, I should add
• 23:39
  Speaker 2: to that, voting qualifications and decisions about voting are supposed
• 23:44
  Speaker 2: to be local, not national. And yet the Supreme Court here,
• 23:47
  Speaker 2: and again, this fits with the theme of the ballroom.
• 23:51
  Speaker 2: It's not that they said that Trump is right or
• 23:53
  Speaker 2: that he has this ability, but it's that they came in.
• 23:56
  Speaker 2: The Supreme Court said, it's too early to tell. Let's
• 23:59
  Speaker 2: wait until Trump is actually implementing these decisions. Now that
• 24:04
  Speaker 2: he's implementing it, we're in a different world and we'll
• 24:06
  Speaker 2: see what the Supreme Court does.
• 24:08
  Speaker 1: But this is one of those cases where the headline
• 24:11
  Speaker 1: can be a bit misleading, not unlike the ballroom case.
• 24:14
  Speaker 1: I mean, somebody sees a headline, Supreme Court allows Trump
• 24:17
  Speaker 1: administration to move forward with mail-in voting restrictions, and they're
• 24:21
  Speaker 1: going to assume, oh, the Supreme Court has blessed the
• 24:23
  Speaker 1: restrictions themselves. But just like with the ballroom, they really haven't,
• 24:28
  Speaker 1: have they?
• 24:29
  Speaker 2: No, this wasn't a decision on whether or not this
• 24:32
  Speaker 2: order to the post office, essentially to block the legitimate ballots.
• 24:36
  Speaker 3: From being delivered, whether it's legal or not.
• 24:38
  Speaker 2: What the court said, the Supreme Court, I should say,
• 24:41
  Speaker 2: first of all, said was that things were too early,
• 24:44
  Speaker 2: that it wasn't ripe and.
• 24:46
  Speaker 3: So couldn't move forward.
• 24:48
  Speaker 2: But there is a subsequent ruling by a district court
• 24:51
  Speaker 2: judge that says Well, now that they are trying to
• 24:54
  Speaker 2: implement it, we're going to stop it. So the Supreme
• 24:57
  Speaker 2: Court has to make this decision in the end. They
• 24:59
  Speaker 2: can't just keep delaying, delaying, delaying. Eventually, they're going to
• 25:02
  Speaker 2: have to say, does the president of the United States
• 25:05
  Speaker 2: have the ability to usurp the power of the states
• 25:08
  Speaker 2: to make these decisions about qualifications and through the unitary
• 25:12
  Speaker 2: executive theory, treat the post office like a secretary who
• 25:17
  Speaker 2: he's ordering a ballpoint pen from?
• 25:19
  Speaker 3: And my worry is with the Supreme Court.
• 25:22
  Speaker 2: That they might just they might wind up doing that
• 25:24
  Speaker 2: as much as, so again, you know, just to set
• 25:26
  Speaker 2: it up, you have the lower court stopping this, the
• 25:29
  Speaker 2: Supreme Court moving things forward, and we're about to enter
• 25:32
  Speaker 2: another round of that. Yeah.
• 25:33
  Speaker 1: And Judge Katanji Brown Jackson accused them of just taking
• 25:35
  Speaker 1: their eye off the ball and said, this is just
• 25:37
  Speaker 1: creating chaos close to the election. But can I ask
• 25:40
  Speaker 1: you about the ripeness issue? Can you explain ripeness for
• 25:45
  Speaker 1: people who don't live inside federal courts? I mean, Why
• 25:49
  Speaker 1: would the court essentially say, come back when the government
• 25:52
  Speaker 1: actually implements this?
• 25:54
  Speaker 2: Well, you know, that fits with the ballroom case, that
• 25:56
  Speaker 2: the court has these different procedural ways of keeping people
• 26:00
  Speaker 2: from getting into court, even if something is being illegal,
• 26:04
  Speaker 2: is being done. And what we talked about in the
• 26:07
  Speaker 2: ballroom case was the question of standing.
• 26:09
  Speaker 3: Who can bring a claim? That's the question of standing.
• 26:11
  Speaker 2: And in the ballroom case, the majority of the Supreme
• 26:14
  Speaker 2: Court said that, you know, this National Historic Trust individual
• 26:18
  Speaker 2: that wants to bring it can't bring it. So now
• 26:20
  Speaker 2: we've got to find somebody else to bring the case.
• 26:23
  Speaker 2: So now here they're doing a different thing, not with
• 26:24
  Speaker 2: the person involved, but with timing.
• 26:27
  Speaker 3: So what the Supreme Court, you know, and.
• 26:29
  Speaker 2: You could just see, you know, you can hear me,
• 26:32
  Speaker 2: my frustration, because they're really refusing to make a decision
• 26:37
  Speaker 2: on the merits and using this issue of ripeness to
• 26:40
  Speaker 2: get away from it. So what it means essentially is
• 26:42
  Speaker 2: it's too early. They haven't implemented the ruling yet. Well,
• 26:46
  Speaker 2: now this back and forth is resulting in they are
• 26:49
  Speaker 2: trying to implement it. And now you have a district
• 26:51
  Speaker 2: court judge, it looks like, who's going to stop it.
• 26:54
  Speaker 2: And eventually the Supreme Court is going to have to
• 26:56
  Speaker 2: come back. That wasn't the end of the story. And
• 26:58
  Speaker 2: tell us, is this legal or not? And the issue
• 27:01
  Speaker 2: of ripeness, I think, is now passed.
• 27:04
  Speaker 1: So this is this is insane that I mean, because
• 27:06
  Speaker 1: if Congress has not enacted a federal law giving the
• 27:10
  Speaker 1: president this authority, can the president just create the authority
• 27:15
  Speaker 1: through executive order? We already know there's three justices on
• 27:18
  Speaker 1: this court who think that a presidential executive order overrules
• 27:21
  Speaker 1: the Constitution and can rewrite it. Is that the level
• 27:24
  Speaker 1: of authoritarian nonsense we're looking at?
• 27:27
  Speaker 2: Well, you know, just to really dig into why this
• 27:30
  Speaker 2: is so concerning, although I think you've accurately said what's
• 27:34
  Speaker 2: going on here, that they're trying to place a president
• 27:36
  Speaker 2: above the law. And we're going to hear from Barbara
• 27:38
  Speaker 2: McQuaid about how Trump sees himself as a kind of
• 27:41
  Speaker 2: mafia figure above the law.
• 27:43
  Speaker 3: Indeed. But here's how they put it.
• 27:45
  Speaker 2: You know, I'll just do it in the language that
• 27:47
  Speaker 2: you're going to hear from the Solicitor General, who defends
• 27:50
  Speaker 2: essentially the government and the president in court. And what
• 27:54
  Speaker 2: they're going to say is, The unitary executive theory gives
• 27:57
  Speaker 2: the president total control over the executive branch. And it
• 28:01
  Speaker 2: doesn't matter if we're talking about a ballpoint pen and
• 28:03
  Speaker 2: a secretary, to use that example I keep coming back to,
• 28:06
  Speaker 2: or mail-in ballots that he thinks are fraudulent. That when
• 28:10
  Speaker 2: he's making the decision with his own employees in the
• 28:13
  Speaker 2: post office as his own employees, he can do so.
• 28:16
  Speaker 2: Just to worry us all a little bit, and I'll
• 28:18
  Speaker 2: tell you why I'm concerned, is there's a case called
• 28:20
  Speaker 2: Myers v. Nebraska that goes back to the early 20th
• 28:23
  Speaker 2: century that is about the unilateral power of the president
• 28:27
  Speaker 2: over the post office, in that case, hiring and firing.
• 28:30
  Speaker 2: And it's seen as a bedrock of the unitary executive.
• 28:34
  Speaker 2: And I could imagine the Supreme Court here finding for
• 28:36
  Speaker 2: Trump and really turning to that theory. That's what the
• 28:40
  Speaker 2: Solicitor General wants them to do, and they just might
• 28:42
  Speaker 2: do it.
• 28:43
  Speaker 1: Right. But but but I get it. Trump wants his pen.
• 28:45
  Speaker 1: But the Constitution gives the states the authority over the
• 28:49
  Speaker 1: administration of elections. So how does the president go in
• 28:53
  Speaker 1: saying the post office works for me? And that allows
• 28:56
  Speaker 1: him to change how the states administer voting.
• 28:59
  Speaker 2: Because the way he'll put it, and this is not
• 29:02
  Speaker 2: something I agree with, is, well, I know that the
• 29:06
  Speaker 2: states have the power to set qualifications and to determine
• 29:09
  Speaker 2: who votes. but I have the power to administer the
• 29:13
  Speaker 2: mechanisms of what gets mailed or not. And I'm not
• 29:16
  Speaker 2: supposed to mail fraudulent ballots. I, the president. So I'm
• 29:19
  Speaker 2: going to tell my employees in the post office, don't
• 29:22
  Speaker 2: mail those ballots that I sincerely believe are fraudulent.
• 29:25
  Speaker 3: Now, of course, that's ridiculous. That's BS.
• 29:28
  Speaker 2: We know that from his attempt to steal the election,
• 29:31
  Speaker 2: that from his claim that he was fighting voter fraud
• 29:34
  Speaker 2: while trying to steal the election, he's doing the same
• 29:37
  Speaker 2: thing again and claiming that he's fighting fraud. Well, unfortunately,
• 29:41
  Speaker 2: the court might say, well, it's just about what letters
• 29:43
  Speaker 2: get mailed and what don't.
• 29:44
  Speaker 3: And that's the.
• 29:45
  Speaker 1: But again, once again, this is not about mail voting.
• 29:48
  Speaker 1: This is about presidential power. If you had to explain
• 29:51
  Speaker 1: to one of our listeners, Corey, why this isn't really
• 29:54
  Speaker 1: just a story about mail in ballots, what would you say?
• 29:58
  Speaker 2: You know, I would say that in a democracy, the
• 30:01
  Speaker 2: question of who gets to vote is really going to
• 30:04
  Speaker 2: determine whether or not we are in a democracy or
• 30:06
  Speaker 2: we're in an authoritarian regime. As much as the president
• 30:10
  Speaker 2: might say that this is analogous to something like a
• 30:12
  Speaker 2: ballpoint pen, that it's just his control over the post office,
• 30:16
  Speaker 2: the bottom line, and John, you've really put this so
• 30:18
  Speaker 2: well in clear terms, is that what he is trying
• 30:21
  Speaker 2: to do is destroy a core constitutional right, the right
• 30:24
  Speaker 2: of states to determine who is eligible to vote. and
• 30:28
  Speaker 2: to sort of run a back end through the post
• 30:30
  Speaker 2: office and undermine that right.
• 30:32
  Speaker 3: That's what's so scary about what's happening here. Okay.
• 30:35
  Speaker 1: I am really ready for Barb McQuaid to come in
• 30:37
  Speaker 1: here and smack some fascists down, Corey. Are we all
• 30:39
  Speaker 1: set for our big guest?
• 30:41
  Speaker 3: Let's hear it.
• 30:41
  Speaker 2: She's prosecuted mob bosses, and we're going to hear about
• 30:45
  Speaker 2: why Donald Trump is the mob bossiest of the bosses.
• 30:48
  Speaker 1: We'll be right back. That makes sense. Sounds good to me.
• 30:51
  Speaker 1: We'll be right back. This is The Oath in the Office.
• 30:57
  Speaker 6: The new John Fuglesang Show, every day at 12 noon.
• 31:01
  Speaker 5: Good afternoon, John, and welcome back to Afternoon Radio.
• 31:04
  Speaker 1: I have missed you.
• 31:05
  Speaker 3: Now you're back into the daylight.
• 31:06
  Speaker 1: Good afternoon, John. Congratulations on the new show.
• 31:09
  Speaker 5: Loving it.
• 31:09
  Speaker 1: Congratulations on the changes happening with this show. Excited for you.
• 31:13
  Speaker 1: Excited for me, personally, because it's like, oh, my God,
• 31:16
  Speaker 1: I can call in again.
• 31:17
  Speaker 6: The new John Fuglesang Show, every day at 12 noon
• 31:21
  Speaker 6: on Sirius XM Progress Channel 127 or on the Sirius
• 31:23
  Speaker 6: XM app. Welcome back to The Oath in the Office.
• 31:32
  Speaker 6: I'm John Fugelsang. Professor, I'm really excited about this next guest.
• 31:36
  Speaker 6: I got to say, I can't stop complimenting your Rolodex.
• 31:38
  Speaker 6: You're bringing in some of my favorite thinkers that help
• 31:42
  Speaker 6: restore my sanity during this Fellini film our republic has
• 31:45
  Speaker 6: turned into.
• 31:46
  Speaker 2: Thanks so much, John. And it really is a pleasure
• 31:49
  Speaker 2: and an honor to introduce our guest for today. Barbara
• 31:52
  Speaker 2: McQuaid is a former U.S. attorney for the Eastern District
• 31:55
  Speaker 2: of Michigan and She's also a professor at the University
• 31:58
  Speaker 2: of Michigan Law School and certainly one of the leading
• 32:01
  Speaker 2: experts on questions of the rule of law and the
• 32:04
  Speaker 2: current threat to democracy. She's also the co-host of the
• 32:07
  Speaker 2: great podcast Sisters in Law. And of course, we hosted
• 32:10
  Speaker 2: her wonderful co-host Joyce Vance recently. And today we're going
• 32:14
  Speaker 2: to focus on your new book, Barbara, The Fix, which
• 32:17
  Speaker 2: draws on your experience as a former U.S. attorney and
• 32:21
  Speaker 2: and really makes a powerful argument about how to understand
• 32:25
  Speaker 2: the Trump administration and its threat to not just democracy,
• 32:28
  Speaker 2: but the rule of law. So welcome to The Oath
• 32:31
  Speaker 2: in the Office, Barbara McQuaid.
• 32:33
  Speaker 7: Well, thank you, Corey. Thank you, John. I'm delighted to
• 32:35
  Speaker 7: be with you.
• 32:37
  Speaker 2: I thought we'd just jump right in by talking about
• 32:39
  Speaker 2: the thesis of the book. I mean, the argument is
• 32:42
  Speaker 2: that there's really a strong analogy between the way that
• 32:46
  Speaker 2: Trump governs, I guess you could call it his leadership style,
• 32:49
  Speaker 2: and the way that mob bosses govern. govern and the
• 32:52
  Speaker 2: mob operates. So let's just start with that. I mean,
• 32:55
  Speaker 2: what does the Trump administration and Trump's particular approach to
• 32:59
  Speaker 2: the presidency, you know, as you know, from the title
• 33:02
  Speaker 2: of our podcast, the president takes a note to preserve,
• 33:05
  Speaker 2: protect and defend the Constitution. But the style that you
• 33:09
  Speaker 2: argue that he has and that we've seen from him
• 33:11
  Speaker 2: is quite different.
• 33:12
  Speaker 3: So tell us about this analogy.
• 33:14
  Speaker 7: Yeah, I would argue that rather than seeking to protect
• 33:18
  Speaker 7: the the Constitution Against All Enemies, Foreign and Domestic, this
• 33:22
  Speaker 7: president is using power to acquire more power. And it
• 33:26
  Speaker 7: is very similar to the tactics that I saw from
• 33:29
  Speaker 7: some of the defendants that came through the criminal justice
• 33:31
  Speaker 7: system when I served as a prosecutor, organized crime figures,
• 33:37
  Speaker 7: corrupt public officials, con men. And this idea of using
• 33:42
  Speaker 7: power to acquire more power, what I mean by that
• 33:45
  Speaker 7: is looking for rivals, other centers of power, finding their
• 33:51
  Speaker 7: potential vulnerabilities, and then using those vulnerabilities as leverage to
• 33:57
  Speaker 7: coerce them to come to the table and negotiate their
• 34:00
  Speaker 7: own punishment. So the quintessential mob boss might be to say,
• 34:04
  Speaker 7: nice restaurant you have here. It'd be a shame if
• 34:07
  Speaker 7: something should happen to it. But if you pay me $ 10, 000
• 34:11
  Speaker 7: a week, I can look out for you and make
• 34:13
  Speaker 7: sure nothing bad happens, right? Everybody knows what's happening. You're
• 34:16
  Speaker 7: being shaken down. But you may feel powerless to do
• 34:19
  Speaker 7: anything about it. In the same way, it's really a
• 34:22
  Speaker 7: brand of extortion. What we've seen from President Trump is
• 34:25
  Speaker 7: taking on law firms, right? That is a center of power.
• 34:29
  Speaker 7: Law firms falsely accusing them in executive orders of engaging
• 34:34
  Speaker 7: in lawfare and weaponization simply by associating with people who
• 34:37
  Speaker 7: investigated Donald Trump or who represented some of his rivals.
• 34:41
  Speaker 7: And then taking away things like their right to even
• 34:43
  Speaker 7: go into a federal building. Good luck practicing law if
• 34:46
  Speaker 7: you can't go into a federal courthouse. But if you
• 34:49
  Speaker 7: should come to the table and negotiate with me, maybe
• 34:52
  Speaker 7: you can buy your way out from under this. And
• 34:54
  Speaker 7: many firms accepted that deal with the devil and agreed
• 34:59
  Speaker 7: to provide pro bono legal services, free legal services for
• 35:03
  Speaker 7: the charities or the interests of Trump's choice. And what
• 35:08
  Speaker 7: that did is to take those law firms off the
• 35:11
  Speaker 7: playing field from challenging some of Trump's pet causes because
• 35:15
  Speaker 7: now that they're aligned with him, their conflict of interest
• 35:18
  Speaker 7: rules prevent them from doing what they did in the
• 35:21
  Speaker 7: first Trump administration when they sent armies of lawyers to
• 35:25
  Speaker 7: airports to protect people who had become subject to Trump's
• 35:29
  Speaker 7: travel ban. So he used his power as leverage to
• 35:33
  Speaker 7: coerce people to come to the table and thereby take
• 35:37
  Speaker 7: away their power and empower himself. And then he's repeated
• 35:40
  Speaker 7: the exercise when it comes to universities and taking away
• 35:44
  Speaker 7: the grant money or foreign allies and imposing these arbitrary tariffs,
• 35:49
  Speaker 7: members of the media by filing what I see as
• 35:53
  Speaker 7: frivolous defamation lawsuits and getting them to cave and settle
• 35:59
  Speaker 7: these lawsuits because they fear that he does have real
• 36:03
  Speaker 7: leverage over them in the form of FCC broadcast licenses
• 36:06
  Speaker 7: or the ability to reject mergers that are very lucrative
• 36:10
  Speaker 7: or even to order enforcement agents. So that's what I
• 36:13
  Speaker 7: mean by the tactics.
• 36:15
  Speaker 2: The way that we've often seen him acting is trying
• 36:18
  Speaker 2: to shut down dissent, going after his enemies, for instance,
• 36:21
  Speaker 2: Attorney General Letitia James. But I take it that one
• 36:24
  Speaker 2: of the things that I found really compelling about the
• 36:27
  Speaker 2: argument and what you're saying now is that the goal
• 36:29
  Speaker 2: is a little different than just a normal authoritarian leader
• 36:33
  Speaker 2: who might worry about criticism or worry about dissent. It
• 36:36
  Speaker 2: really is to co-opt the people that he's trying to
• 36:39
  Speaker 2: shut down. So it's a kind of, you know, make
• 36:42
  Speaker 2: him an offer. We're both fans of the Godfather. So
• 36:45
  Speaker 2: we can't get all of us, I take it. So
• 36:47
  Speaker 2: we can't get away from the offer. You know, you
• 36:49
  Speaker 2: can't refuse. Like to really not just shut people down,
• 36:52
  Speaker 2: but to bring them on side to his team.
• 36:55
  Speaker 1: Except he's the anti-FBI. He's trying to flip people. But
• 36:59
  Speaker 1: he's trying to flip them to lawlessness as opposed to
• 37:01
  Speaker 1: law enforcement.
• 37:02
  Speaker 7: There you go.
• 37:02
  Speaker 3: Yep, that's a good way to put it.
• 37:04
  Speaker 1: So often the mainstream media were cautioned about using words
• 37:07
  Speaker 1: like mafia or Cosa Nostra or organized crime or authoritarianism
• 37:12
  Speaker 1: when referring to this movement, of course. And that's why
• 37:15
  Speaker 1: I find your analogy to be so powerful, because you
• 37:18
  Speaker 1: spent years as a federal prosecutor going after these exact
• 37:21
  Speaker 1: kind of people. I'm really curious, I guess, going back
• 37:24
  Speaker 1: to the first term, was there an inciting incident for you?
• 37:27
  Speaker 1: Was there One moment where you actually looked at this
• 37:31
  Speaker 1: agenda and said, I recognize some of these tactics.
• 37:35
  Speaker 7: It really wasn't until the second term, which to me
• 37:38
  Speaker 7: is very different from his first term. I mean, certainly
• 37:40
  Speaker 7: his first term was extraordinary and different in many ways.
• 37:43
  Speaker 7: But it was really right out of the gate in
• 37:45
  Speaker 7: the first term when he started doing some things that
• 37:48
  Speaker 7: were so different. I mean, one is pardoning all of
• 37:51
  Speaker 7: the perpetrators of the January 6th attack. This is a
• 37:55
  Speaker 7: reward to allies. And also, I think, an effort to
• 37:58
  Speaker 7: rewrite history, to spread this narrative that they were somehow
• 38:02
  Speaker 7: the victims of overly aggressive law enforcement. And what they
• 38:06
  Speaker 7: did that day was somehow patriotic and that they were
• 38:09
  Speaker 7: just martyrs and victims and great patriots who were trying
• 38:12
  Speaker 7: to protect our democracy. When, of course, just the opposite
• 38:15
  Speaker 7: is true. That is what struck me as, whoa, this
• 38:18
  Speaker 7: is a very different ballgame from what we saw in
• 38:21
  Speaker 7: the first Trump administration. But then those executive orders started
• 38:24
  Speaker 7: kicking out against the law firms. The grants were rescinded
• 38:27
  Speaker 7: from universities.
• 38:28
  Speaker 3: That's right.
• 38:28
  Speaker 7: These lawsuits being filed against members of the media, that
• 38:32
  Speaker 7: struck me as very unusual. I also think, to this
• 38:35
  Speaker 7: co-opting point, one of the things that also struck me
• 38:38
  Speaker 7: was on Inauguration Day, when in the front row, his
• 38:43
  Speaker 7: former critics- these billionaires who run the tech industry, Tim
• 38:48
  Speaker 7: Cook was there and Mark Zuckerberg and Jeff Bezos. These
• 38:51
  Speaker 7: were all people who had been critics of Donald Trump
• 38:54
  Speaker 7: during his first term for plenty of legitimate reasons. And
• 38:57
  Speaker 7: now they had realized it's easier, safer to just play
• 39:01
  Speaker 7: the game. I'm going to start paying the protection money
• 39:06
  Speaker 7: because that's easier. I'm going to go along to get along.
• 39:10
  Speaker 7: That's easier than standing up to this tyrant because what
• 39:12
  Speaker 7: I want is I don't want to be regulated. I
• 39:15
  Speaker 7: don't want to have enforcement actions. I want my mergers
• 39:18
  Speaker 7: to be approved. I want those government contracts. Maybe I
• 39:21
  Speaker 7: ought to just keep my mouth shut about my criticism
• 39:25
  Speaker 7: and appease the leader.
• 39:26
  Speaker 1: And I think.
• 39:27
  Speaker 7: That's also something that's been so different.
• 39:29
  Speaker 3: Yeah.
• 39:29
  Speaker 5: Yeah.
• 39:30
  Speaker 2: I mean that that scene too where they're all around
• 39:32
  Speaker 2: the table and of course praising him in that sycophantic
• 39:35
  Speaker 2: way that he loves that at least is reminiscent of
• 39:39
  Speaker 2: you know mob movies where the sycophants are around worrying
• 39:42
  Speaker 2: that they're going to get their head bashed and i'm
• 39:45
  Speaker 2: thinking you know the depiction fellas yeah yeah Or the
• 39:50
  Speaker 2: depiction of Capone. John can help me there. Is that
• 39:52
  Speaker 2: De Niro who plays Capone?
• 39:53
  Speaker 1: Yes, that's De Niro in 1987. It's The Untouchables.
• 39:55
  Speaker 3: Yes, Professor.
• 39:56
  Speaker 1: You're exactly right.
• 39:57
  Speaker 2: Giving these speeches as everybody worries about their heads being
• 40:01
  Speaker 2: bashed in.
• 40:03
  Speaker 1: I'm so sorry, but I just think back to the
• 40:06
  Speaker 1: call to the Georgia Secretary of State, to Rappensperger. I
• 40:09
  Speaker 1: just need to have just 11,000– I mean– not check
• 40:13
  Speaker 1: all the votes, not be sure you get the right count,
• 40:15
  Speaker 1: but find me the exact number. These tactics have always
• 40:18
  Speaker 1: been around. You're right. I'm sorry, Corey.
• 40:20
  Speaker 3: Yeah.
• 40:21
  Speaker 2: I mean, one question I was going to ask, we're
• 40:23
  Speaker 2: always looking for a balance, of course, of being honest
• 40:27
  Speaker 2: about the reality that we're facing and also some hope.
• 40:30
  Speaker 2: But of course, mafia figures often, and you participated in
• 40:33
  Speaker 2: this as U.S. attorney, you and your colleagues, and they
• 40:37
  Speaker 2: often are bad at hanging on to power long term.
• 40:40
  Speaker 2: And there are certain weaknesses that in the way that
• 40:43
  Speaker 2: their style of governance operates. So, I mean, is there
• 40:45
  Speaker 2: hope in this idea that he governs as a mob
• 40:48
  Speaker 2: boss and that so many of these figures have found
• 40:51
  Speaker 2: themselves on trial? Do you see it as a vulnerable
• 40:54
  Speaker 2: moment for him? Or is it that, you know, sometimes
• 40:57
  Speaker 2: the don is really good at cracking down on dissent
• 41:01
  Speaker 2: and hanging on to power?
• 41:02
  Speaker 7: Yeah, you know, ultimately, most of these criminal organizations disintegrate
• 41:07
  Speaker 7: in one way or another. Sometimes they're dismantled through law enforcement,
• 41:11
  Speaker 7: but oftentimes they fall apart on their own. Eventually, people
• 41:15
  Speaker 7: who are loyal to the boss realize that this is
• 41:17
  Speaker 7: not a good deal for me and decide to part
• 41:20
  Speaker 7: ways with the boss. I also found, especially in fraud cases,
• 41:24
  Speaker 7: ultimately people who supported the cause realized, I didn't get
• 41:28
  Speaker 7: what I bargained for here. So when you've got a
• 41:30
  Speaker 7: president who is promising to lower inflation rates and improve
• 41:34
  Speaker 7: the lot for working class Americans, not to start any
• 41:37
  Speaker 7: foreign wars. At some point they realize, I'm not getting
• 41:40
  Speaker 7: what I bargained for here. And so ultimately the con man,
• 41:44
  Speaker 7: you know, the Ponzi scheme ultimately reveals itself because it
• 41:48
  Speaker 7: relies on perpetrating the fraud again and again and again.
• 41:51
  Speaker 7: And ultimately somebody says, I want my money. I want
• 41:53
  Speaker 7: to withdraw my money. And the whole house of cards
• 41:56
  Speaker 7: comes falling down. But I don't know that we have
• 41:58
  Speaker 7: to wait that long for people to, you know, on
• 42:01
  Speaker 7: the inside to flip or to change their loyalty. That's
• 42:04
  Speaker 7: one of the things that gives me hope is that we,
• 42:06
  Speaker 7: the people, have the power in a democracy to take
• 42:08
  Speaker 7: back our power, to say we don't accept this, that
• 42:11
  Speaker 7: a corrupt president is not what we deserve or we expect.
• 42:15
  Speaker 7: And we have the power at the voting booth to
• 42:17
  Speaker 7: determine who is going to represent us in the White House.
• 42:20
  Speaker 7: And this ain't it.
• 42:23
  Speaker 1: I have a question. I mean, one of the things
• 42:25
  Speaker 1: that I've learned is that political corruption can often happen
• 42:28
  Speaker 1: without anyone technically breaking any criminal laws. Does corruption necessarily
• 42:33
  Speaker 1: have to involve some explicit exchange? I give you X,
• 42:36
  Speaker 1: you give me Y? Or can a political system become
• 42:39
  Speaker 1: corrupt just through a culture of expected favors and promised access?
• 42:44
  Speaker 2: Yes.
• 42:44
  Speaker 7: So, you know, the term corruption is one of those
• 42:46
  Speaker 7: loaded terms. It's kind of like the word collusion that
• 42:48
  Speaker 7: was used during the Mueller investigation. It's a little bit
• 42:51
  Speaker 7: of a fuzzy term. Certainly there is criminal corruption. We
• 42:55
  Speaker 7: talk often in the law about a quid pro quo,
• 42:58
  Speaker 7: so the acceptance of a bribe. you know, if you
• 43:01
  Speaker 7: pay me a certain amount of money, I will vote
• 43:04
  Speaker 7: in a certain way. I'll approve your contract. You know,
• 43:07
  Speaker 7: that's illegal. That violates the bribery statute. Extortion usually comes
• 43:11
  Speaker 7: with a threat. Unless you pay me, I'm going to
• 43:13
  Speaker 7: do this bad thing to you. Those are illegal. But corruption,
• 43:17
  Speaker 7: in my view, means more than that. I talk in
• 43:19
  Speaker 7: the book about a concept that was first articulated by
• 43:23
  Speaker 7: Oliver Wendell Holmes, who was a Justice of the Supreme Court.
• 43:26
  Speaker 7: And he talks about the bad man theory of the law.
• 43:29
  Speaker 7: So the good man enters into a contract, for example,
• 43:32
  Speaker 7: and he follows the law. The contract is enforceable. I
• 43:35
  Speaker 7: have to do what I promised to do because the
• 43:36
  Speaker 7: law recognizes contracts. But it's just not the law that
• 43:40
  Speaker 7: makes me obey and fulfill my promise. It's because my
• 43:44
  Speaker 7: word means something. And I shook hands on it. And
• 43:46
  Speaker 7: I said, I promise to do X in exchange for
• 43:49
  Speaker 7: what you're giving me in terms of Y. And so
• 43:51
  Speaker 7: I'm going to honor that contract. That's what the good man,
• 43:54
  Speaker 7: most of us do when we're trying to follow the law.
• 43:57
  Speaker 7: The bad man instead will calculate, well, what's the penalty
• 44:01
  Speaker 7: if I breach this contract? I don't care about my
• 44:04
  Speaker 7: word because if I could sell the goods to someone
• 44:07
  Speaker 7: else and make more money, maybe I'll just pay the
• 44:09
  Speaker 7: legal consequences of breaching this contract because in the end,
• 44:12
  Speaker 7: it's better for me to do that. So that's the
• 44:15
  Speaker 7: bad man theory. I'm looking for the loopholes. I'm looking
• 44:18
  Speaker 7: to manipulate the system. I'm looking for the way that
• 44:21
  Speaker 7: maximizes my benefit. And I think what the founders of
• 44:25
  Speaker 7: our constitution talked about was civic virtue and about service
• 44:30
  Speaker 7: to the people for the common good. And I think
• 44:33
  Speaker 7: we've gotten away a little bit from that concept of
• 44:35
  Speaker 7: the common good, where all that matters is every man
• 44:38
  Speaker 7: for himself, self-enrichment. And I think Donald Trump typifies that.
• 44:42
  Speaker 7: He's doing some things that are not technically illegal, but
• 44:45
  Speaker 7: dealing in stocks and then promoting those companies and enriching himself,
• 44:50
  Speaker 7: I think we would all agree, is a form of corruption.
• 44:53
  Speaker 7: But there's not a law in the books that says
• 44:54
  Speaker 7: he can't do that. He's not technically under the law
• 44:57
  Speaker 7: defined as an insider, even though he can get inside tips.
• 45:01
  Speaker 7: And also, you know, we know that the president has
• 45:03
  Speaker 7: often been said as to be able to speak and
• 45:05
  Speaker 7: move markets based on his words.
• 45:07
  Speaker 1: He knows that.
• 45:08
  Speaker 7: So he buys up the Dell stock and then talks
• 45:09
  Speaker 7: about what a great company Dell is. So stock transfers,
• 45:13
  Speaker 7: the cryptocurrency, his meme coin, profiting from his service in
• 45:19
  Speaker 7: the White House, even accepting this plane from Qatar. All
• 45:22
  Speaker 7: of those things strike me as corrupt in this broader sense.
• 45:26
  Speaker 1: Yeah.
• 45:26
  Speaker 2: And one of the lessons of all this might be
• 45:28
  Speaker 2: that we don't have laws on the books that ban
• 45:31
  Speaker 2: the kind of corruption that a president, and we've seen
• 45:33
  Speaker 2: this from Trump, is engaged in.
• 45:35
  Speaker 3: I'd add to your rightly.
• 45:37
  Speaker 2: Long list, the selling access, of course, to early information
• 45:41
  Speaker 2: from social, which certainly should be illegal. I was on
• 45:44
  Speaker 2: with your co-host on MS Now, actually, with Joyce Vance,
• 45:47
  Speaker 2: talking about the fact that You know, there is unfortunately
• 45:50
  Speaker 2: a hard case about whether or not this is criminal
• 45:53
  Speaker 2: and whether or not a prosecution could be brought about
• 45:56
  Speaker 2: these issues.
• 45:57
  Speaker 3: Of course, it shouldn't be.
• 45:58
  Speaker 2: There should be laws on the books that ban emoluments
• 46:01
  Speaker 2: violations using the office for profit. One thing, you know,
• 46:05
  Speaker 2: in that vein, just sort of moving to some of
• 46:08
  Speaker 2: the examples that I know that you're focused on, because
• 46:10
  Speaker 2: the thesis of the book, you know, it's not one
• 46:12
  Speaker 2: of these instances where the book is outdated. It becomes
• 46:15
  Speaker 2: more relevant with every story and every day.
• 46:18
  Speaker 3: But is the attempt to co-opt the New York Times.
• 46:21
  Speaker 2: The Southern District of New York, of course, subpoenaed the
• 46:24
  Speaker 2: journalists who are looking into that bribe plane from Qatar.
• 46:28
  Speaker 3: You know, I mean, so tell us about that.
• 46:30
  Speaker 2: I mean, how does the analysis in the book help
• 46:32
  Speaker 2: us to understand this sort of not so veiled threat
• 46:35
  Speaker 2: against the New York Times and these journalists? And of course,
• 46:39
  Speaker 2: you're covering as well the fact that the Department of
• 46:41
  Speaker 2: Justice ultimately seems to be backing down on, or the
• 46:44
  Speaker 2: Southern District seems to be backing down on those subpoenas.
• 46:47
  Speaker 2: So how does the sort of mob frame help us
• 46:50
  Speaker 2: understand that story?
• 46:52
  Speaker 7: Well, you know, again, looking for centers of power, and
• 46:54
  Speaker 7: certainly the media is one of them. Donald Trump has
• 46:57
  Speaker 7: famously referred to the media as the enemy of the
• 46:59
  Speaker 7: people for a long time. Of course, they're anything but.
• 47:03
  Speaker 7: Sometimes the press can get sensationalist or muckraking in ways
• 47:07
  Speaker 7: that maybe we find distasteful. But at the end of
• 47:09
  Speaker 7: the day, A free press is essential to a democracy
• 47:12
  Speaker 7: because we, the people, get to decide what our laws
• 47:15
  Speaker 7: are and who governs us. And we can only do
• 47:17
  Speaker 7: that if we have access to information. Certainly, there's some
• 47:20
  Speaker 7: information that's out of bounds for us, classified information and
• 47:23
  Speaker 7: the like. But most often, we need information. We need newspapers.
• 47:27
  Speaker 7: And so when there was this effort to subpoena reporters,
• 47:30
  Speaker 7: it came right after there was some reporting about this
• 47:33
  Speaker 7: plane and about the fact that Donald Trump had to
• 47:35
  Speaker 7: fly on a different plane because it did not have
• 47:38
  Speaker 7: adequate information. security features to protect his life. And that,
• 47:41
  Speaker 7: you know, some other people were on the plane and
• 47:44
  Speaker 7: he switched planes and all that sort of stuff. It's
• 47:46
  Speaker 7: all very interesting to national security. There is a right
• 47:50
  Speaker 7: under the law for the government to subpoena news outlets.
• 47:53
  Speaker 7: They are not exempt from testifying before a grand jury.
• 47:58
  Speaker 7: But when you are a Justice Department lawyer, you are
• 48:02
  Speaker 7: trained to respect people's constitutional rights. And sometimes there is
• 48:06
  Speaker 7: a tension. between investigating a crime and respecting constitutional rights.
• 48:11
  Speaker 7: And so until the Trump administration, there had been a
• 48:14
  Speaker 7: policy of using legal process against reporters only as a
• 48:18
  Speaker 7: last resort and not as a way to interfere with
• 48:23
  Speaker 7: the news gathering process. I would submit that that's exactly
• 48:27
  Speaker 7: what happened in this case, an effort to interfere in
• 48:29
  Speaker 7: the news gathering process by intimidating not only the reporters,
• 48:34
  Speaker 7: but also their sources. if you know that you might
• 48:38
  Speaker 7: be exposed because you provided information to a reporter, I
• 48:42
  Speaker 7: think those sources will dry up eventually and we won't
• 48:45
  Speaker 7: know about what's happening inside of our government. And so
• 48:48
  Speaker 7: I think these very heavy-handed tactics are an effort to
• 48:51
  Speaker 7: chill reporters and to chill the sources who might be
• 48:55
  Speaker 7: sharing information with them. And that's an important part of
• 49:00
  Speaker 7: How we, the people, learn about what's happening in our
• 49:03
  Speaker 7: government is by hearing from those on the inside who
• 49:06
  Speaker 7: share what's happening.
• 49:08
  Speaker 1: But they're trying to control everyone on the outside of
• 49:10
  Speaker 1: the tent and inside the tent with the same kind
• 49:12
  Speaker 1: of fear.
• 49:13
  Speaker 7: Yes, I think that's right. We saw another example of
• 49:16
  Speaker 7: this earlier this year when the Pentagon said, in exchange
• 49:20
  Speaker 7: for having a credential to come inside the building, you
• 49:24
  Speaker 7: must agree that you will report only news that is
• 49:28
  Speaker 7: authorized by the leadership of the Pentagon. No more digging
• 49:32
  Speaker 7: up news stories. What's the point of being a reporter
• 49:34
  Speaker 7: inside if all you're going to do is reissue their
• 49:36
  Speaker 7: press releases? But they conditioned that access to that agreement.
• 49:42
  Speaker 7: And to their credit, every news outlet, including Fox News
• 49:45
  Speaker 7: and others, said, no, we don't operate that way. So now,
• 49:48
  Speaker 7: you know, you have to be escorted if you want
• 49:49
  Speaker 7: to go inside the Pentagon.
• 49:51
  Speaker 2: Yeah, I mean, I guess part of the story to me, too,
• 49:53
  Speaker 2: and I'd be interested in you reflecting on the differences
• 49:56
  Speaker 2: between the Department of Justice now and when you were
• 49:59
  Speaker 2: serving as U.S.
• 50:00
  Speaker 3: Attorney, you know, it seems to me.
• 50:02
  Speaker 2: That part of the mafia tactic's are not just external
• 50:05
  Speaker 2: in regard to the press, but are internal in regard
• 50:08
  Speaker 2: to the entire Department of Justice, including the U.S. Attorney
• 50:13
  Speaker 2: for the Southern District of New York, Jake Clayton, you know,
• 50:16
  Speaker 2: had a reputation as being different, that this was a
• 50:18
  Speaker 2: real civil servant. As listeners know, he had visited Brown
• 50:22
  Speaker 2: about a week before he issued these convenas and was
• 50:25
  Speaker 2: sort of welcomed on campus as a former SEC chair.
• 50:29
  Speaker 3: And then went ahead and did this.
• 50:31
  Speaker 2: And, you know, to my mind, watching all of that,
• 50:33
  Speaker 2: it seemed a symbol of the idea that although the
• 50:36
  Speaker 2: paradigm of the Department of Justice had been that these officials, U.S. attorneys,
• 50:41
  Speaker 2: also take oaths to defend the Constitution and, of course,
• 50:44
  Speaker 2: to defend the law, that he is succeeding, and this
• 50:47
  Speaker 2: is a case in point, in upending that and in
• 50:49
  Speaker 2: demanding loyalty. And, of course, Jay Clayton's reward is that
• 50:52
  Speaker 2: now he's the director of national intelligence, so far from
• 50:55
  Speaker 2: being punished for it, he's He's been, you know, promoted
• 50:58
  Speaker 2: into one of the highest reaches of the government.
• 51:00
  Speaker 3: I mean, so what do you think?
• 51:02
  Speaker 2: I mean, how does this story compare to what you
• 51:05
  Speaker 2: saw at the Department of Justice? And then I'd ask you, too,
• 51:08
  Speaker 2: to think about the future of that, you know, storied
• 51:10
  Speaker 2: institution created, you know, in the Grant administration to protect
• 51:15
  Speaker 2: civil rights and really resurrected after Nixon in order to
• 51:20
  Speaker 2: reestablish the rule of law after a corrupt president. And
• 51:23
  Speaker 2: yet here we are in this case in point. subpoenaing
• 51:26
  Speaker 2: journalists in order to intimidate them.
• 51:28
  Speaker 7: Yes. The word weaponized gets used too much, I think,
• 51:32
  Speaker 7: and overused. But boy, has President Trump really, in my opinion,
• 51:36
  Speaker 7: weaponized the Justice Department. It's heartbreaking for me to see it.
• 51:39
  Speaker 7: I spent 20 years of my career there. I mean,
• 51:42
  Speaker 7: in my soul, I feel like I'm an assistant U.S.
• 51:44
  Speaker 7: attorney because I really came up there in the law.
• 51:47
  Speaker 7: And prosecutors there are trained that you are not a
• 51:51
  Speaker 7: representative of an ordinary party, an ordinary dispute. Your job
• 51:55
  Speaker 7: is to seek justice. That means admitting the flaws in
• 51:58
  Speaker 7: your case. It means sometimes dropping cases or declining to
• 52:02
  Speaker 7: prosecute cases if the evidence is not there. There are
• 52:06
  Speaker 7: also some policies that we consider to be the essence
• 52:09
  Speaker 7: of the Justice Department. One of them was that criminal
• 52:13
  Speaker 7: charges may never be based on partisan politics, someone's beliefs,
• 52:17
  Speaker 7: someone's associations, someone's activities. And that's where this idea of
• 52:22
  Speaker 7: DOJ independence comes from, it doesn't mean that the president
• 52:25
  Speaker 7: can't say, I'd like you to fulfill these certain priorities.
• 52:28
  Speaker 7: But what it does mean is independent from the president's
• 52:32
  Speaker 7: partisan political agenda. And so to use the Justice Department
• 52:36
  Speaker 7: to go after people like Jim Comey or Letitia James
• 52:39
  Speaker 7: or Adam Schiff or other people who have been directed
• 52:43
  Speaker 7: by Donald Trump to be the targets of criminal cases,
• 52:47
  Speaker 7: that is completely a foul of that part of what's
• 52:51
  Speaker 7: called the principles of federal prosecution. So you hear people
• 52:54
  Speaker 7: talk about DOJ independence. And, you know, Dodd Blanche is
• 52:58
  Speaker 7: a former criminal defense attorney. And as a result, he's
• 53:01
  Speaker 7: very skilled in taking words and reframing the argument. So
• 53:05
  Speaker 7: when he was asked, both in his confirmation hearings and
• 53:07
  Speaker 7: by media outlets, do you pledge to be independent of
• 53:11
  Speaker 7: the White House? He'll say, well, no, that would be ridiculous.
• 53:14
  Speaker 7: I mean, what if the president were to say, I
• 53:15
  Speaker 7: want you to go after violent crime? I'm supposed to say, no, sir,
• 53:18
  Speaker 7: I won't do that. No, he's being very clever in
• 53:21
  Speaker 7: how he defines independence. Certainly, the president can have priorities
• 53:25
  Speaker 7: and agendas and accountability for people who aren't doing a
• 53:28
  Speaker 7: good job. But it's when the president is asking Justice
• 53:32
  Speaker 7: Department lawyers to attack his enemies and use the legal
• 53:37
  Speaker 7: process to do that is when they run afoul of
• 53:40
  Speaker 7: those post-Watergate reforms that were designed to protect the rule
• 53:44
  Speaker 7: of law from the president's partisan interests.
• 53:48
  Speaker 1: I just want to ask about the fix, because first off,
• 53:50
  Speaker 1: I love that the title of your book refers to
• 53:52
  Speaker 1: the problem and the solution at the same time. But
• 53:55
  Speaker 1: you really lay out three major themes we witnessed, and
• 53:58
  Speaker 1: that's the corruption and the chaos and then the cruelty.
• 54:02
  Speaker 1: I'd like to just briefly ask you about that category,
• 54:05
  Speaker 1: because this whole notion of deliberately inflicting pain on political
• 54:10
  Speaker 1: opponents or universities or media organizations or whomever. And this
• 54:14
  Speaker 1: is a guy whose parents sent him to military school
• 54:16
  Speaker 1: where he learned how to haze people. But why do
• 54:19
  Speaker 1: you consider cruelty a political tactic rather than just the
• 54:23
  Speaker 1: ugliness of political rhetoric or this man's poor character?
• 54:26
  Speaker 7: Yeah, I think it's a deliberate tactic. It's not just
• 54:30
  Speaker 7: an accident that we see this cruelty in the same way,
• 54:32
  Speaker 7: you know, the mob might need to break somebody's thumbs
• 54:36
  Speaker 7: or put them in cement overshoes to make an example
• 54:38
  Speaker 7: of them. I think we see the same thing. I
• 54:41
  Speaker 7: also think that the Trump administration is using cruelty to
• 54:45
  Speaker 7: turn public opinion against certain out groups. That is one
• 54:50
  Speaker 7: of the ways President Trump has come into power, is
• 54:53
  Speaker 7: by cultivating and exploiting resentment in society. You know, telling
• 54:59
  Speaker 7: people that the reason you are not so well off economically,
• 55:03
  Speaker 7: worse off than your parents' generation, is not because of
• 55:07
  Speaker 7: the financial policies of the Reagan administration that continue to
• 55:12
  Speaker 7: this day that has created this huge wealth disparity with
• 55:16
  Speaker 7: salaries that escalate for CEOs, corporate tax cuts, and other
• 55:20
  Speaker 7: kinds of things. That's not the reason you're so poorly
• 55:24
  Speaker 7: situated financially. It's because of those immigrants or it's because
• 55:27
  Speaker 7: of DEI. It's because of woke educational systems. And so
• 55:33
  Speaker 7: we have to demonize those groups. It's not enough to
• 55:36
  Speaker 7: speak rhetoric about We want to show and we want
• 55:39
  Speaker 7: people to become excited and even gleeful when we see
• 55:44
  Speaker 7: pain being inflicted on people. So the White House has
• 55:46
  Speaker 7: posted all kinds of videos of immigrants being subjected to suffering,
• 55:52
  Speaker 7: poor treatment, suffering. You know, there is that video that
• 55:56
  Speaker 7: was put out after those men were deported to El
• 55:59
  Speaker 7: Salvador to the terrorist prison. And we saw them, you know,
• 56:02
  Speaker 7: in their underwear, head pushed down, head shaved. and set
• 56:06
  Speaker 7: to dramatic music with Hollywood production quality. And the goal
• 56:10
  Speaker 7: was to be gleeful in our superiority to these awful, bad,
• 56:14
  Speaker 7: worthless people. And it builds a kind of resentment. It
• 56:19
  Speaker 7: is a divisive tactic. It's been used by authoritarian leaders
• 56:23
  Speaker 7: throughout history, and it certainly gets used by mob bosses.
• 56:26
  Speaker 7: And so I think the cruelty in some of these
• 56:29
  Speaker 7: instances is not just a collateral consequence. It is the goal.
• 56:33
  Speaker 7: in some of these enforcement actions and certainly in the
• 56:36
  Speaker 7: use of social media.
• 56:38
  Speaker 2: Yeah, and I guess we can see in the opponents
• 56:40
  Speaker 2: that Donald Trump targets the tendency to want to rewrite history,
• 56:45
  Speaker 2: to shut down dissent, to co-opt people. I mean, one
• 56:48
  Speaker 2: last question I want to ask about is his attack
• 56:52
  Speaker 2: on the Southern Poverty Law Center, which we've been talking
• 56:54
  Speaker 2: about and I know you're very focused on.
• 56:56
  Speaker 3: I mean, what do you make of that?
• 56:58
  Speaker 2: This is an organization, of course, that's traditionally gone after
• 57:01
  Speaker 2: hate groups.
• 57:03
  Speaker 3: And now he's targeting them.
• 57:04
  Speaker 2: So tell us about that and what the framework that
• 57:07
  Speaker 2: we've been discussing, how it helps to shed light on it.
• 57:11
  Speaker 4: Yeah.
• 57:12
  Speaker 7: So I want to start by saying we don't know
• 57:13
  Speaker 7: what we don't know. Maybe there's more to this case
• 57:15
  Speaker 7: than we've seen. There was recently a superseding indictment that
• 57:18
  Speaker 7: suggested that an employee was sharing a bank account and
• 57:22
  Speaker 7: cohabitating with one of the informants whom she paid as
• 57:26
  Speaker 7: she led that program. If that's the case, then the
• 57:29
  Speaker 7: Southern Poverty Law Center is a victim of this crime.
• 57:32
  Speaker 7: But aside from that, in the first indictment, their theory
• 57:36
  Speaker 7: seems to be, the prosecution's theory is, that the Southern
• 57:40
  Speaker 7: Poverty Law Center isn't dismantling these cases, as it tells
• 57:44
  Speaker 7: its donors when it attracts donations. It is, instead, advancing
• 57:48
  Speaker 7: their work. Now, of course, the defense of the Southern
• 57:50
  Speaker 7: Poverty Law Center is if you want to dismantle an organization,
• 57:53
  Speaker 7: the best way to do it is by putting people
• 57:55
  Speaker 7: on the inside and infiltrating it. and having people undercover
• 57:58
  Speaker 7: who can learn about things in advance.
• 58:00
  Speaker 1: That's how we take down the mafia.
• 58:02
  Speaker 7: It's exactly the way the FBI operates to take down
• 58:04
  Speaker 7: all kinds of criminal enterprises. And so this idea that
• 58:07
  Speaker 7: donors were deceived because, in fact, what's really happening is
• 58:12
  Speaker 7: that the Southern Poverty Law Center is manufacturing this hate crime.
• 58:16
  Speaker 7: This is, again, an effort, I think, to rewrite history,
• 58:19
  Speaker 7: that there is no white supremacy in America, that this
• 58:22
  Speaker 7: is all conjured up by agitators who want you to
• 58:26
  Speaker 7: believe that there is white supremacy in this country, but
• 58:31
  Speaker 7: it's actually these leftist organizations who are creating it themselves
• 58:36
  Speaker 7: simply so they can be the hero and enrich themselves
• 58:40
  Speaker 7: at the same time. That's the narrative. And so if
• 58:43
  Speaker 7: you believe that, then you can portray the left and
• 58:47
  Speaker 7: left-wing organizations like the Southern Poverty Law Center as the villains.
• 58:52
  Speaker 7: And they're victimizing people poor white people like us who
• 58:55
  Speaker 7: are just doing our thing and we're not doing anything
• 58:58
  Speaker 7: wrong and they are falsely accusing us of doing all
• 59:01
  Speaker 7: of these bad things. I think that's part of the
• 59:04
  Speaker 7: narrative there. And even for those who don't believe that
• 59:08
  Speaker 7: this is all literally true, they like it that Trump's
• 59:11
  Speaker 7: on our side. they're all corrupt. One of the things
• 59:14
  Speaker 7: Trump does is spend a lot of time talking about
• 59:17
  Speaker 7: the corruption of the Biden Justice Department, how that was weaponized,
• 59:21
  Speaker 7: despite a complete absence of evidence, in my opinion, that
• 59:24
  Speaker 7: that was weaponized in any way. His evidence is that
• 59:26
  Speaker 7: Trump himself was charged with a crime. Therefore, that's how
• 59:28
  Speaker 7: you know it was weaponized. But I think part of
• 59:31
  Speaker 7: the narrative is, if everybody is corrupt, then I'm going
• 59:35
  Speaker 7: to choose who I follow based on who shares my values.
• 59:39
  Speaker 7: And I see this administration going after the organization that
• 59:44
  Speaker 7: is falsely claiming these ideas of white supremacy when that's
• 59:49
  Speaker 7: not what's happening at all.
• 59:50
  Speaker 3: So he's on my side.
• 59:52
  Speaker 2: So well put, because these themes are all connected, these prosecutions,
• 59:57
  Speaker 2: these attacks on opponents, and the attack on the Smithsonian, which,
• 1:00:01
  Speaker 2: of course, we've been talking about, the attempt to really
• 1:00:03
  Speaker 2: take out of American history anything that's offensive to white people,
• 1:00:07
  Speaker 2: the white nationalist ideology of this administration.
• 1:00:10
  Speaker 1: Anything offensive to lousy white people, Corey.
• 1:00:14
  Speaker 3: And right in his view, what's quote unquote offensive.
• 1:00:18
  Speaker 2: And yet it also combines the shutdown of dissent and
• 1:00:22
  Speaker 2: the attack on speech and organizations that he simply doesn't like.
• 1:00:25
  Speaker 2: And the other thing that you said that I just
• 1:00:27
  Speaker 2: want to emphasize is is that to him, the law
• 1:00:30
  Speaker 2: isn't some ideal that we should all aspire to. It's
• 1:00:33
  Speaker 2: just a weapon to be used the way that, you know, well,
• 1:00:37
  Speaker 2: Roy Cohen, of course, a famous mafia lawyer who also
• 1:00:40
  Speaker 2: was his mentor.
• 1:00:42
  Speaker 3: That's not an accident.
• 1:00:43
  Speaker 2: Another fact that really backs up what you're saying that,
• 1:00:46
  Speaker 2: you know, the way Roy Cohen operated for Trump and
• 1:00:49
  Speaker 2: the mob was, you know, not to aspire to some
• 1:00:52
  Speaker 2: high idea of the law, but to get people off
• 1:00:55
  Speaker 2: and to, you know, to win at all costs.
• 1:00:57
  Speaker 3: And that's what we're seeing. John, anything else to add
• 1:01:01
  Speaker 3: or any final thoughts?
• 1:01:02
  Speaker 1: I'm just so amazed we got Barbara McQuaid to come
• 1:01:03
  Speaker 1: here and talk to us for this long. I don't
• 1:01:05
  Speaker 1: know how we pulled it off.
• 1:01:07
  Speaker 3: Well, what a pleasure.
• 1:01:08
  Speaker 2: It's my pleasure, Barbara McQuaid, to have had you on
• 1:01:11
  Speaker 2: The Oath in the Office. Hopefully you'll come back. And
• 1:01:14
  Speaker 2: it really was a pleasure. Thanks for joining us.
• 1:01:16
  Speaker 1: And again, everyone needs to pick up a copy of
• 1:01:19
  Speaker 1: The Fix. For me, it's casual beach reading. Just wonderful.
• 1:01:22
  Speaker 1: Thank you.
• 1:01:23
  Speaker 7: Thank you both very much.
• 1:01:24
  Speaker 5: My pleasure.
• 1:01:25
  Speaker 1: Corey, what a pleasure to talk to Barbara McQuaid. My God,
• 1:01:28
  Speaker 1: I never felt stupider than sitting in between the two
• 1:01:29
  Speaker 1: of you. But that was just great.
• 1:01:32
  Speaker 2: I mean, you know, it's such a moment in which
• 1:01:34
  Speaker 2: we're just bombarded with this attack on democracy. And I
• 1:01:37
  Speaker 2: do think that the analogy with mob bosses, the association,
• 1:01:41
  Speaker 2: of course, with Roy Cohen, a famous mob lawyer.
• 1:01:44
  Speaker 3: All of that helps to make sense of all this.
• 1:01:46
  Speaker 2: And also, you know, the other thing that I liked
• 1:01:48
  Speaker 2: about the discussion, John, as always, is mob bosses are
• 1:01:52
  Speaker 2: not inevitable. You know, they're not forever. They're often taken
• 1:01:55
  Speaker 2: down internally and externally. And, you know, that's some of
• 1:01:58
  Speaker 2: the hope here, too.
• 1:02:00
  Speaker 1: Right on.
• 1:02:00
  Speaker 3: I know.
• 1:02:00
  Speaker 1: Just imagining Trump as a mob boss, he'll he'll make
• 1:02:03
  Speaker 1: you an offer you can't take seriously. Professor, I want
• 1:02:06
  Speaker 1: to thank you so much. What a great show. And
• 1:02:08
  Speaker 1: I want to thank all of our listeners. Thank you
• 1:02:09
  Speaker 1: to Wendy and Beowulf and everyone who keeps this right away.
• 1:02:12
  Speaker 1: Train on the tracks. please, please subscribe to us and
• 1:02:16
  Speaker 1: buy a copy of the book, The Oath in the Office.
• 1:02:17
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• 1:02:20
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• 1:02:24
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• 1:02:28
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• 1:02:56
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